Shedrack v. Ambassador Health ( 2020 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
SHEDRACK V. AMBASSADOR HEALTH
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
CONSTANCE SHEDRACK, APPELLANT,
V.
AMBASSADOR HEALTH OF OMAHA, APPELLEE.
Filed February 25, 2020. No. A-19-421.
Appeal from the District Court for Douglas County: THOMAS A. OTEPKA, Judge. Affirmed.
Jon Rehm, of Rehm, Bennett, Moore, Rehm & Ockander, P.C., L.L.O., for appellant.
Quinn R. Eaton, Marnie A. Jensen, and Kamron T.M. Hasan, of Husch Blackwell, L.L.P.,
for appellee.
MOORE, Chief Judge, and ARTERBURN and WELCH, Judges.
ARTERBURN, Judge.
INTRODUCTION
Constance Shedrack appeals from the order of the district court for Douglas County
entering summary judgment in favor of Ambassador Health of Omaha. Shedrack alleged in her
complaint that Ambassador Health terminated her employment in retaliation for her reporting
understaffing conditions she believed to be detrimental to patient care and because she had
exercised her rights under the Nebraska Workers’ Compensation Act. On appeal, she argues that
the district court was wrong in finding that she did not prove a prima facie case of retaliatory
discharge and in finding that she failed to prove a causal connection between her report of unsafe
work conditions and her firing. For the reasons that follow, we affirm the district court’s entry of
summary judgment in favor of Ambassador Health.
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BACKGROUND
On July 20, 2017, Shedrack filed a complaint alleging that she was hired on August 6,
2016, by Ambassador Health to work as a Certified Nursing Assistant (CNA) in its skilled nursing
facility and that her employment was unlawfully terminated on October 5, 2016. Shedrack alleged
that her employment was terminated because she reported concerns about inadequate staffing
levels and because she exercised her rights under the Nebraska Workers’ Compensation Act. She
acknowledged, however, that Ambassador Health’s stated reason for her termination was “failure
to maintain resident safety” after she was involved in a resident’s fall.
On November 15, 2018, Ambassador Health filed a motion for summary judgment,
alleging that there was no genuine issue of material fact insofar as it did not terminate Shedrack’s
employment in violation of public policy or because she engaged in protected conduct under the
Nebraska Fair Employment Practice Act. Ambassador Health further alleged that there was no
genuine dispute regarding it terminating Shedrack’s employment because she violated company
policy in transferring a resident, which resulted in the resident’s injury. In support of its motion
for summary judgment, Ambassador Health filed an annotated statement of undisputed facts. The
district court received 37 exhibits and heard argument on the motion for summary judgment at a
hearing on January 18, 2019.
Ambassador Health, which operates as a skilled health care facility, hired Shedrack in
August 2016 and provided her with employee handbooks and policy manuals when she began her
employment. Although Shedrack described her employee orientation as “haphazard,” she
acknowledged that she signed forms acknowledging her receipt of an employee handbook,
corporate compliance manual, and code of conduct on August 16. She further acknowledged that
her orientation covered transfer procedures for residents of Ambassador Health.
Ambassador Health’s transfer procedure was called the “Catch a Falling Star” program,
and Shedrack acknowledged that she was familiar with the program. The program specified that
“a ‘Falling Star[]’ will be hung outside of the resident’s room on the door frame” to indicate that
the resident is at risk for falls. Under this circumstance, a care plan is written that addresses the
resident’s potential for falls. Shedrack said, “The star -- the star sign is for patients that are -- that
are likely to fall. I remember this.” Additionally, Shedrack said that each resident’s mode of
transfer was noted in their profile on the computer, which she checked on a daily basis.
On October 2, 2016, Shedrack was working as a CNA on Ambassador Health’s third floor,
which included the long-term care unit. The 24 residents of the long-term care unit lived in two
hallways, each of which was staffed with one registered nurse and one CNA. Ambassador Health
stated that on October 2, facility-wide there were 95 residents and 24 nursing personnel, or a ratio
of one nursing personnel for every 3.96 residents. Nevertheless, according to Shedrack, no one
immediately responded when a resident from the hallway to which Shedrack was not assigned
activated her emergency call light. Shedrack testified that when a resident activated the emergency
call light, all nursing personnel were paged even if they were not assigned to that resident’s
hallway. Shedrack said that she went to the resident’s room to assist her because no one else was
responding and “out of compassion to help.”
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Shedrack got to the resident’s room and observed the resident’s roommate exiting the
restroom. The roommate had soiled herself, so Shedrack first helped the roommate clean herself
before she cleaned the restroom itself. During that time period, no other nursing personnel
responded to the resident’s call light. Shedrack testified that she then helped the resident, whose
right leg was amputated above the knee, sit on the toilet. She left the resident’s room and returned
when the resident again activated her call light to signal that she was finished using the restroom
and needed assistance exiting. The resident began to lose her balance and fall as Shedrack helped
her stand up from the toilet. Shedrack slowed the resident’s fall, injuring her back in the process,
which resulted in them both being “stuck” in the restroom. Because Shedrack could not stand erect,
she called for help and estimated it took 5 minutes for other nursing personnel to arrive and assist
them. Shedrack testified that the first person to arrive was the other CNA, who reported that she
was outside smoking. Shedrack testified that she did not know where the two registered nurses
were, but said “they must have gone to smoke as usual because there was nobody there.” The
resident suffered a fractured ankle, which required hospitalization, and Shedrack suffered a back
injury. Shedrack’s supervisor provided her with ibuprofen, and she used ice packs when she got
home from work.
Shedrack testified that she initially hesitated to fill out an incident report as she thought
that she would be fine. At her supervisor’s urging, Shedrack did fill out an incident report,
however, and stated that the injury could have been prevented if there was adequate staffing. She
wrote, “There ought to be enough aides on duty considering the number of patients.” She testified
that she had also reported inadequate staffing previously. Shedrack further testified that at the time
that she filled out the incident report, she had no intention of seeking workers’ compensation
benefits.
Shedrack testified that she had seen the resident transferred by only one nursing personnel
on many occasions. However, the resident suffered a fall the previous week, which necessitated
changing her transfer protocol to require the assistance of two nursing personnel. Shedrack
acknowledged that “under the duress of the emergency, [she] did not see that” the transfer protocol
for the resident had changed. She also testified that she did not see Falling Star signs posted in the
resident’s room.
Polly Stern, director of clinical services, testified that she spoke with Shedrack on October
3 and that Shedrack “said she was aware of the Falling Star. She saw the notes outside the door.”
According to the falling star instructions posted on the door, it was required that two people assist
the resident with any transfer, and that a slideboard and gait belt be used. One staff person was to
be in front and one in back to safely complete the transfer. According to Stern, Shedrack said she
did not utilize a second person, a slideboard, or a gait belt, thus not following requirements. Stern
further testified that Shedrack did not utilize the “Vocera” communication system to attempt to
call for additional help. According to Stern, the other CNA and one of the registered nurses were
across the hall assisting another patient at the time the resident and Shedrack were injured. She
testified that the weekend supervisor and two restorative aides would also have been available to
assist Shedrack, had she used the Vocera system to call for help.
Stern said that she never saw Shedrack’s incident report because it was “handed in to HR.”
When Stern was directly asked, “did you look at this [incident] report?” she replied, “No.” “I did
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not see this [incident report] form, no.” Stern acknowledged that she knew of Shedrack’s injury,
but she said that Shedrack did not mention to her any way in which her injury could have been
prevented. Stern also testified that she received no indication that Shedrack might seek workers’
compensation benefits.
Shedrack was suspended beginning on October 3, 2016, pending Ambassador Health’s
investigation of the incident. Thereafter, she was terminated on October 5. The stated reason for
Shedrack’s termination was “[i]ncorrect transfer precautions performed . . . resulting in a resident
fall with significant injury.” Stern testified that she was required to report the incident to the
Department of Health and Human Services and Adult Protective Services, and she said that she
was unaware of the reports’ dispositions.
Shedrack did file a workers’ compensation claim against Ambassador Health on December
8, 2017, and she received benefits. She testified that the benefits were 75 percent of her salary and
lasted from the incident through February 2017.
The district court determined that Shedrack had failed to make a prima facie case of
retaliatory discharge because she did not provide sufficient evidence of a causal connection
between her protected activities and her termination. The district court stated:
In this case, little evidence exists to establish a causal connection between
Shedrack’s complaints regarding staffing and her termination. Shedrack has demonstrated
a temporal connection in that her incident report on October 2 contained a complaint about
staffing and she was terminated on October 5. However, the inference of discrimination
arising from this temporal connection is undermined because her termination is also
temporally connected to Ambassador’s legitimate, nondiscriminatory reason for
termination. See Skalsky v. Indep[endent] Sch[ool] Dist. No. 743, [772 F.3d 1126 (8th Cir.
2014)]. Further, the evidence in the record does not establish that the persons responsible
for the termination decision were aware of the staffing complaint in the incident report.
Polly Stern testified via deposition that she never received the incident report. Shedrack
spoke verbally to Stern during the pre-termination investigation, but did not allege during
her deposition that she communicated her complaint about staffing at that time.
Accordingly, there is no evidence in the record that Stern was aware of the staffing
complaint connected to [the resident’s] fall. Although two other individuals participated in
the termination decision with Stern, Shedrack has not deposed those individuals nor
provided evidence as to whether they were aware of Shedrack’s staffing complaint in her
incident report. Therefore, Shedrack is unable to establish a causal connection between her
staffing complaint in the October 2 incident report and her subsequent termination.
Shedrack’s deposition also states that prior to the incident she complained to Stern
about staffing on other occasions when she had to sign off on her orientation and when she
was called to pick up shifts. . . . Shedrack also stated that “every” employee was
complaining about staffing levels. . . . However, it is not clear whether these earlier
complaints were based on beliefs that Ambassador was engaging in dangerous and
unlawful activity with its staffing levels, or were more general complaints that the
employees were dissatisfied with their hours. While Shedrack’s incident report specifically
alleges that an accident which resulted in resident injury could have been avoided by
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adequate staffing. Shedrack has not alleged whether she raised patient safety concerns in
her prior conversations about staffing. However, even presuming that the prior complaints
qualified as protected activity. Shedrack’s assertion that “every person was complaining
about staffing levels” undermines her claim of retaliatory termination as she has offered no
evidence that others who complained about staffing levels were also fired. . . .
On the record before this Court, there is not sufficient evidence of a causal
connection between Shedrack’s staffing complaint and her termination to satisfy a prima
facie case of retaliatory discharge.
The district court then determined that even if Shedrack had proved her prima facie case,
Ambassador Health had satisfied its burden in articulating a legitimate, nondiscriminatory reason
for Shedrack’s discharge from employment, thus shifting the burden back to Shedrack. The district
court then found that Shedrack failed to prove that Ambassador Health’s stated reason for
terminating her employment was pretextual. Without evidence of pretext, Shedrack’s claims could
not survive summary judgment even if a prima facie case of retaliatory discharge had been proved.
Accordingly, the district court entered summary judgment in favor of Ambassador Health.
Shedrack now appeals from the entry of summary judgment.
ASSIGNMENTS OF ERROR
Shedrack assigns that the district court erred in finding that she had not proved a prima
facie case of retaliation and that she had not produced evidence showing a causal link between her
termination and her report of unsafe working conditions and her workplace injury.
STANDARD OF REVIEW
An appellate court affirms a lower court’s grant of summary judgment if the pleadings and
admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate
inferences that may be drawn from the facts and that the moving party is entitled to judgment as a
matter of law. Williamson v. Bellevue Med. Ctr., 304 Neb. 312, 934 N.W.2d 186 (2019). In
reviewing a summary judgment, an appellate court views the evidence in the light most favorable
to the party against whom the judgment was granted, and gives that party the benefit of all
reasonable inferences deducible from the evidence. Id.
ANALYSIS
Shedrack assigns and argues that the district court erred in finding that she failed to prove
a prima facie case of retaliatory termination. She contends that her showing of the temporal
proximity between her protected activity and her termination demonstrated a causal link between
the two and, therefore, proved her prima facie case. Ambassador Health argues in reply that
Shedrack’s showing of temporal proximity between her reporting alleged understaffing and her
termination did not demonstrate the causal link necessary to prove a prima facie case of retaliatory
discharge because there was no evidence that Stern or the other individuals involved in Shedrack’s
dismissal were aware of Shedrack’s report. Absent a causal link and, thus, absent Shedrack making
a prima facie case of retaliatory discharge, Ambassador Health argues that the district court
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correctly entered summary judgment in its favor. We agree and, therefore, affirm the district
court’s order.
Our courts have applied the burden-shifting analysis originally applied to cases involving
claims of employment discrimination to cases alleging retaliatory discharge. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See, e.g., Riesen v. Irwin
Indus. Tool Co., 272 Neb. 41, 717 N.W.2d 907 (2006). Under that analysis, the plaintiff must first
prove a prima facie case of retaliation. Second, if the plaintiff succeeds in proving a prima facie
case, the burden shifts to the defendant-employer to articulate some legitimate, nondiscriminatory
reason for the plaintiff’s discharge from employment. Third, assuming the employer establishes
an articulated nondiscriminatory reason for the discharge of the employee, the employee maintains
the burden of proving that the stated reason for discharge was pretextual and not the true reason
for the employer’s decision; i.e., that the discharge would not have occurred but for the employer’s
utilization of prohibited reasons. Id.
To establish a prima facie case of unlawful retaliatory discharge, an employee must show:
(1) that he or she participated in a protected activity; (2) that the employer took an adverse
employment action against him or her; and (3) that a causal connection existed between the
protected activity and the adverse employment action. O’Brien v. Bellevue Public Schools, 289
Neb. 637, 856 N.W.2d 731 (2014). Because an employer is not apt to announce retaliation as its
motive, an employee’s prima facie case is ordinarily proved by circumstantial evidence. Id. With
respect to the third element of a prima facie case--a causal connection between the protected
activity and the adverse employment action--proximity in time between the protected activity and
discharge is a typical beginning point for proof of a causal connection. Id.
In O’Brien v. Bellevue Public Schools, supra, the Nebraska Supreme Court determined that
the employee established a causal connection between his reports of suspected asbestos and his
termination of employment where there was approximately 1 month between the two events. The
employee reported his suspicions of the presence of asbestos in May and June 2009. Id. He met
with his immediate supervisor on July 7 and again with his supervisor and an administrator on July
13. Id. On July 16, the employee’s employment was terminated. Id. Similarly, we found that
temporal proximity alone circumstantially established the causal connection necessary for the
employee’s prima facie case in Helvering v. Union Pacific RR. Co., 13 Neb. Ct. App. 818, 703 N.W.2d
134 (2005), where there were fewer than 3 weeks between the employee’s protected activity and
the termination of his employment.
The district court found that Shedrack presented sufficient evidence to satisfy the element
that Shedrack had engaged in a protected activity and Ambassador Health did not dispute that
Shedrack was subject to an adverse employment action by virtue of her termination. Therefore the
focus of the district court and Shedrack’s arguments on appeal relate to the issue of whether there
is a causal connection between the protected activity and the adverse employment action.
Accordingly, we focus our attention on the third element as well, whether a causal connection
existed between Shedrack’s protected activity and the adverse employment action.
Shedrack showed temporal proximity between her protected activity and the termination
of her employment. Shedrack filled out the incident report on October 2, 2016, and raised the issue
of understaffing and reported her own injury. She did not state any intent to file a workers’
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compensation claim at that time. On October 3, she was suspended, and she was fired on October
5. Shedrack’s firing came only three days after she engaged in protected activity, thus establishing
temporal proximity.
However, temporal proximity is only a beginning point for proof of a causal connection.
See O’Brien v. Bellevue Public Schools, supra. Regardless of the close proximity in time between
Shedrack filing her incident report and being fired, there is no causal connection between the two
events. To find a causal connection between the protected activity and the adverse employment
action in this matter would be to ignore the very nature of causation. Shedrack’s incident report
went directly to Ambassador Health’s human resources department. Stern, who was the person
who investigated the incident and was the primary person who made the decision to terminate
Shedrack’s employment, testified that she had no knowledge that Shedrack had raised concerns of
understaffing in her incident report. She also said that she had no knowledge that Shedrack
intended to seek workers’ compensation benefits. Shedrack’s incident report and, thus, the
protected activity she alleges on appeal, was not seen by Stern, who decided to terminate
Shedrack’s employment for violating Ambassador Health’s resident transfer protocol. Therefore,
Shedrack’s report of understaffing concerns could not have caused her termination because the
decision to terminate her employment was made without knowledge of her understaffing report.
We further note, as did the district court, that Shedrack presented no evidence regarding the other
persons who signed the written notice of termination. Therefore, she has provided no evidence of
a causal connection between her complaints and their actions.
Even when viewed in the light most favorable to Shedrack, the evidence shows no causal
connection between her protected activity of reporting understaffing concerns and the adverse
employment action of termination. The evidence instead shows that her termination was due to her
disregard of established policy and procedure regarding patient safety. Accordingly, we affirm the
district court’s finding that Shedrack failed to prove a prima facie case of unlawful retaliatory
discharge.
We note that Shedrack argues, but did not assign as error, that the district court erred in
finding that she failed to produce evidence indicating that Ambassador’s reasons for terminating
her were pretextual. We need not address this argument for two reasons. First, to be considered by
an appellate court, an alleged error must be both specifically assigned and specifically argued in
the brief of the party asserting the error. Anderson v. Babbe, 304 Neb. 186, 933 N.W.2d 813 (2019).
The pretext issue herein was not assigned as error. Second, having found that Shedrack has failed
to set out a prima facie case of retaliation, there is no need to analyze the issue of pretext. An
appellate court need not engage in analysis which is not needed to adjudicate the controversy
before it. Conley v. Brazer, 278 Neb. 508, 772 N.W.2d 545 (2009).
CONCLUSION
Shedrack failed to prove a prima facie case of retaliatory discharge. Therefore,
Ambassador Health was entitled to judgment as a matter of law. We therefore affirm the order of
the district court which granted summary judgment to Ambassador Health.
AFFIRMED.
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