Estate of Glaves v. Mapleton Andover LLC

659 F.Supp.3d 1208

The ESTATE OF Deena J. GLAVES and Andrea Tatom,as Representative of the Heirs of Deena J. Glaves, Plaintiffs, v. The MAPLETON ANDOVER LLC, Defendant.

Case No. 21-1037-DDC-GEB

United States District Court, D. Kansas

Signed March 2, 2023

Alexander B. Mitchell, II, Alex Mitchell Law Office, PA, Wichita, KS, Randall K. Rathbun, Depew Gillen Rathbun & McInteer, LC, Wichita, KS, for Plaintiffs.

Matthew A. Spahn, David S. Wooding, Martin Pringle Oliver Wallace & Bauer, LLP, Wichita, KS, for Defendant.

MEMORANDUM AND ORDER

Daniel D. Crabtree, United States District Judge

Plaintiffs the Estate of Deena J. Glaves and Andrea Tatom as Representative of the Heirs of Deena J. Glaves bring this suit against defendant Mapleton Andover LLC, an assisted living facility in Andover, Kansas. Plaintiffs allege that defendant's employee—certified nurse assistant, Muhammad Qadeer Akram—raped Ms. Glaves while she resided at Mapleton. Doc. 73 at 4 (Pretrial Order ¶ 3.a.). They assert that defendant was negligent when it hired Mr. Akram, when it allowed him to work with vulnerable residents, and when it investigated the alleged rape. Id. at 5-6 (Pretrial Order ¶ 4.a.).

Before the court is defendant's Motion for Summary Judgment (Doc. 74) and its Memorandum in Support (Doc. 75). Plaintiffs have responded (Doc. 78) and defendant has replied (Doc. 83). For reasons explained below, the court grants defendant's Motion for Summary Judgment in part and denies it in part.

I. Uncontroverted Facts

The following facts are uncontroverted or, where controverted, are stated in the light most favorable to plaintiffs, the parties opposing summary judgment. See Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

Defendant is an assisted living facility in Andover, Kansas. Doc. 75-1 at 1 (Stewart Aff. ¶ 2). Plaintiffs contend that on March 25, 2020, Ms. Glaves became a resident at defendant's facility; Ms. Glaves suffered from dementia; and she was completely dependent on her caregivers. Doc. 73 at 2 (Pretrial Order ¶ 3.a.).¹

Plaintiffs allege that Mr. Akram raped Ms. Glaves, and she died shortly after the assault. They argue that defendant failed to perform an adequate background check and thus acted negligently when it hired Mr. Akram. They also argue that defendant acted negligently when it allowed Mr. Akram access to vulnerable patients, and again later, when it investigated the alleged rape. The court first discusses the summary judgment facts relevant to defendant's hiring process, then addresses those facts relevant to the alleged rape and ensuing investigations.

Hiring and Background Check of Mr. Akram

Defendant hired Muhammad Qadeer Akram as a certified nurse aide on January 1, 2020. Doc. 75-1 at 1 (Stewart Aff. ¶ 3). Before hiring Mr. Akram, defendant conducted a search of him on the Kansas Nurse Aide Registry on December 30, 2019. Id. (Stewart Aff. ¶ 4). The result showed no finding that Mr. Akram had committed abuse, neglect, or exploitation. Id.; see id. at 3 (Nurse Aide Registry Confirmation Notice).

Kimberlie Dobbin² began working as the operator of defendant's facility in September 2018 and still occupies that position. Id. at 1 (Stewart Aff. ¶ 2). She testified that defendant's employee, Josh Vargo, oversaw defendant's hiring process when it hired Mr. Akram. Doc. 78-8 at 2 (Dobbin Dep. 11:21-12:3). Ms. Dobbin delegated the task of conducting Mr. Akram's criminal history check to Mr. Vargo, and he told her that "he had everything completed," before defendant hired Mr. Akram. Id. at 10 (Dobbin Dep. 58:6-60:25). Ms. Dobbin later learned that Mr. Vargo had not conducted a criminal history check on Mr. Akram, so she then requested the information herself. Id. Mr. Vargo also told Ms. Dobbin he had checked Mr. Akram's references, and "his references were all good," but later admitted that he hadn't contacted references. Id. at 5 (Dobbin Dep. 31:12-32:11).

About six months after hiring Mr. Akram, on June 25, 2020, defendant requested a criminal history record check on Mr. Akram from the Kansas Department for Aging and Disability Services (KDADS). Doc. 75-1 at 1 (Stewart Aff. ¶ 5); see id. at 4 (KDADS Criminal Record Check Confirmation). On June 30, 2020, KDADS informed defendant that it had completed Mr. Akram's criminal history record check and found no "existence of any criminal history" based on information from the Kansas Bureau of Investigation (KBI). Id. at 1 (Stewart Aff. ¶ 6); see id. at 5 (June 2020 KDADS Letter).

When KDADS conducts a criminal history record check on an individual, it reviews information from the KBI. Doc. 75-2 at 3 (Hunter 30(b)(6) Dep. 18:25-19:2). KDADS requests "all convictions, both adult and juvenile and any adjudication[;]" then, if the individual does have a criminal record, KDADS refers to its "criminal history record check specialist for them to review the convictions and/or adjudications to see if they meet prohibitions listed within [Kan. Stat. Ann. §] 39-970." Id. at 3 (Hunter 30(b)(6) Dep. 17:17-18:15). If the KDADS specialist finds that the applicant has violated a law listed in Kan. Stat. Ann. § 39-970, then KDADS e-mails the facility who requested the criminal history record check to advise it that the "applicant is not eligible for work." Id. (Hunter 30(b)(6) Dep. 18:1-14). Defendant knew that the KDADS criminal record check alerts to violations for a limited number of statutes—those listed in § 39-970. Doc. 78-8 at 7-8 (Dobbin Dep. 38:15-42:11).

KDADS Knowledge of Mr. Akram's Criminal History

In June 2020, KDADS informed defendant that it had located no "existence of any criminal history" after running a criminal history check on Mr. Akram. Doc. 75-1 at 1 (Stewart Aff. ¶ 6); see id. at 5 (June 2020 KDADS Letter). At the time, KDADS was unaware that Mr. Akram, in fact, had a criminal history.

KDADS didn't know that Mr. Akram was arrested for an alleged rape in 2005. Doc. 75-2 at 5 (Hunter 30(b)(6) Dep. 50:22-51:4). It wasn't until August 6, 2020, when KDADS learned that Mr. Akram had pleaded guilty to one count of conspiracy to commit food stamp fraud, one count of food stamp fraud, and one count of wire fraud in 2011. Id. at 8 (Hunter 30(b)(6) Dep. 61:8-62:18). Then, in October 2020, KDADS first learned of the following criminal allegations against Mr. Akram: (1) In 2006, Haysville Police Department investigated Mr. Akram for alleged sexual battery; and (2) In 2008 and 2009, the Kansas Board of Healing Arts took actions against Mr. Akram's physician's assistant license due to alleged sexual misconduct.³ Id. at 5-7 (Hunter 30(b)(6) Dep. 51:5-53:18, 54:24-60:13).

In 2020, KDADS hadn't implemented the finger-printed background checks required by Kan. Stat. Ann. § 39-970 because it didn't have the necessary "infrastructure" to do so. Id. at 8-9 (Hunter 30(b)(6) Dep. 64:24-65:22). Additionally, KDADS testified that it is unable to state whether a criminal record search in January 2020 would have passed or failed Mr. Akram for eligibility. Doc. 78-9 at 9-11 (Hunter 30(b)(6) Dep. 45:2-47:20).

Subsequent Background Checks on Mr. Akram

One of defendant's arguments contends that even if it had conducted additional (or earlier) background checks, it still wouldn't have known about Mr. Akram's criminal history. The following facts—about background checks another adult care facility conducted on Mr. Akram—are relevant to defendant's argument.

On August 16, 2020, Mr. Akram applied for certified nurse aide position at Wheat State Manor, a nursing facility in Whitewater, Kansas. Doc. 75-3 at 1 (Creekmore Aff. ¶¶ 2-3). On August 18, 2020, Wheat State Manor searched Mr. Akram on the Kansas Nurse Aide Registry—and, this search discovered that Mr. Akram hadn't committed abuse, neglect, or exploitation. Id. (Creekmore Aff. ¶ 4); see id. at 3 (KDADS Nurse Aide Registry Confirmation Notice). On August 21, 2020, Wheat State Manor conducted a background search of Mr. Akram through the U.S. Department of Health & Human Services Officer of Inspector General (OIG). Id. at 1 (Creekmore Aff. ¶ 6).⁴ The results of OIG's search showed that Mr. Akram wasn't excluded from employment. Id.; see id. at 4 (OIG Exclusion Search Results).

Wheat State Manor also requested a criminal history record check from KDADS. Id. at 1-2 (Creekmore Aff. ¶ 7). On August 25, 2020, Wheat State Manor received a KDADS eligibility determination letter stating that it found Mr. Akram had no criminal history related to prohibited offenses. Id.; see id. at 5 (August 2020 KDADS Letter). Finally, Wheat State Manor contacted two of Mr. Akram's three listed references (it was unable to reach the third); both references gave Mr. Akram positive feedback. Id. at 2 (Creekmore Aff. ¶ 8). After conducting these background checks, Wheat State Manor hired Mr. Akram. Id. (Creekmore Aff. ¶ 9). It discharged him shortly after hiring him, in November 2020. Id.

Alleged Rape of Ms. Glaves and Subsequent Investigations

On July 30, 2020, one of defendant's hospice nurses discovered that someone had shaved Ms. Glaves's pubic area. Doc. 78-11 at 8 (Hooker Dep. 74:5-14). After learning about this incident, Andrea Tatom, Ms. Glaves's daughter, called Andover Police to report that someone at Mapleton had shaved her mother's pubic area and defendant had no explanation for the shaving. Doc. 78-13 at 6. An employee at the Attorney General's office advised Ms. Tatom that she should have her mother tested for sexual assault. Doc. 78-11 at 7 (Hooker Dep. 45:24-47:3).

On July 31, 2020, defendant suspended Jamie Gordon, another nurse, after the owner of Mapleton reviewed security footage of the hallway outside of Ms. Glaves's room, and believed Ms. Gordon was the only person who had entered and remained in the room long enough to shave Ms. Glaves. Id. at 5-6 (Hooker Dep. 35:22-36:7, 42:10-21). Defendant and the State then conducted a more thorough review of the video; they found that on July 30, Ms. Gordon was in Ms. Glaves's room for a total of 47...