Odhuno v. Reed's Cove Health & Rehab., LLC

JOHN PAUL ODHUNO, Plaintiff, v. REED'S COVE HEALTH AND REHABILITATION, LLC d/b/a AVITA;AXIOM HEALTHCARE SERVICES, LLC; AUDREY SUNDERRAJ;CAROL SCHIFFELBEIN; CHRISTAN ROSE; TERESA FORTNEY; TREVA BANUELOS;and LAURA HOWARD, in her official capacity as Secretary of theKansas Department for Aging and Disability Services, Defendants.

Case No. 15-1347-EFM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

March 10, 2020

MEMORANDUM AND ORDER

Plaintiff John Paul Odhuno was employed as a certified nurse aide ("CNA") by Defendant Reed's Cove Health and Rehabilitation, LLC ("Reeds Cove"). Reeds Cove is a long-term care facility for the elderly that is managed by Defendant Axiom Health Care Services, LLC ("Axiom"). In late July 2014, the Kansas Department for Aging and Disability Services ("KDADS") investigated Reeds Cove after receiving an anonymous tip of alleged resident abuse. During the investigation, Odhuno's employment was terminated. Odhuno now asserts multiple claims against Reeds Cove and Axiom as well as against KDADS Secretary Laura Howard and five KDADS employees involved in the investigation.

This matter comes before the Court on Defendants Reeds Cove and Axiom's Motion for Summary Judgment (Doc. 191). Defendants seek judgment as a matter of law on Odhuno's discrimination claims under Title VII and 42 U.S.C. § 1981 and on the issue of whether Odhuno can receive back wages after September 17, 2014. They also seek judgment as a matter of law on Odhuno's state law tort of outrage claim. For the reasons discussed below, the Court denies Defendants' motion on the Title VII and § 1981 discrimination claims, reserves ruling on the back wages issue, and grants Defendants' motion on the tort of outrage claim.

I. Factual and Procedural Background

A. Parties and Relevant Persons

Odhuno is a black male of Kenyan descent. In 2001, upon finishing high school, he moved from Kenya to the United States. On January 14, 2014, he was hired to work as a CNA at Reeds Cove.

Reeds Cove operates a skilled nursing facility in Wichita, Kansas. It is licensed as an adult care home with the State of Kansas and participates in the Medicare program. This allows it to receive payments on behalf of residents who are receiving Medicare and/or Medicaid benefits. Reeds Cove is governed by federal regulations issued by the Centers for Medicare and Medicaid Services ("CMS"). In July and August of 2014, Vanessa Underwood was employed as Reeds Cove's administrator.

Axiom is an administrative services company that contracts with health care facilities, including Reeds Cove, to provide various support functions and consulting services. These consulting services include advice and assistance on regulatory compliance and employmentissues, such as suspensions and terminations. For the time period at issue here, Chance Becnel was Axiom's President and Chief Operating Officer; Weston Parsons was Axiom's Vice President of Operations; Kathi Bragg was Axiom's Vice President of Human Resources; and Kimberly Summers was a nurse consultant. Becnel also sits on Reeds Cove's governing body.

B. Axiom's Relationship to Reeds Cove

Becnel has described Axiom as an administrative and support company for Reeds Cove. Axiom and Reeds Cove entered into an Administrative Services Agreement in January 2013. Under that Agreement, Axiom generally was to "provide [Reeds Cove] with all administrative and consulting services necessary or appropriate for [Reeds Cove] to be able to run an effective and efficient operation." Specifically, the Agreement states that Axiom must provide human resources services to Reeds Cove, including "recommendations on the recruitment of physician and non-physician staff, training of non-physician staff, performing appraisals and salary reviews, [and] hiring and supervising . . . ."

With respect to employment issues, Axiom has no authority over the facilities it supports, but it encourages the facilities to use the human relations support services for which they pay. With respect to employee termination, Axiom requests that its client communities consult with Axiom prior to making the decision to terminate employment. It is common for Axiom to be involved with the facility leadership when it comes to suspensions or terminations of its client's employees. But, it is not normal practice for Axiom to terminate employees on behalf of its client communities.

Axiom does not make work rules, schedules, pay rates, or otherwise supervise Reeds Cove employees. It does not maintain personnel files on Reeds Cove employees. Axiom does, however, administer group benefit plans, such as a health insurance plan and a retirement/pension plan, inwhich Reeds Cove participates. It also maintains a "legal file" on all Reeds Cove employees that have employment-related legal issues pending.

C. July 23, 2014 Complaint and Reeds Cove's Initial Investigation

On July 18, 2014, a Reeds Cove resident (the "Resident") requested that no male caregivers perform her personal care. On July 23, 2014, a contract therapist reported to Underwood that the Resident informed her that a black male nurse made her uncomfortable, touched her inappropriately, and had taken her out in the courtyard and was rough with her in the grass during the previous holiday. The Resident's report did not identify an alleged perpetrator other than a black male nurse.

Underwood immediately began investigating the allegations. She interviewed the Resident and staff members who worked with her. She did not, however, interview Odhuno who sometimes worked the night shift in the Resident's unit, or any other black male. Nor did she ask any Reeds Cove Staff if they knew whether a black male nurse was providing personal care to the Resident.

The Resident, who had medical diagnoses of metabolic encephalopathy and dementia, was examined by a nurse for signs of abuse, and none were found. Additionally, Underwood reviewed footage from the surveillance cameras covering the entrance to/from the courtyard for the July 4, 2014, holiday weekend and observed that the Resident only went into the courtyard on one occasion, during which she was accompanied by her son. Ultimately, Underwood determined that the Resident's allegations of abuse could not be substantiated.

Reeds Cove's policy at the time of the complaint required Underwood to report allegations of abuse to KDADS. She did not report these allegations. Underwood understands that she did not conduct her investigation in accordance with Reeds Cove's policy.

D. KDADS Complaint Survey

On July 31, 2014, KDADS arrived at Reeds Cove to conduct an on-site complaint survey (i.e., investigation) that was based on the same abuse allegations reported on July 23. The KDADS employees present at Reeds Cove on July 31 were Christen Rose and Treva Banuelos, with Rose serving as the lead. Shortly after arriving at Reeds Cove, the KDADS surveyors met with Underwood. At that time, they only disclosed that they were conducting a complaint survey. They did not disclose the nature of the allegations or information about an alleged perpetrator. Upon KDADS' arrival at Reeds Cove, Axiom's Vice President of Operations, Weston Parsons, went to the facility to meet with Underwood regarding the investigation.

On the afternoon of July 31, Rose (KDADS) notified Underwood (Reeds Cove) that she was placing Reeds Cove in "immediate jeopardy" status. Immediate jeopardy means that KDADS had determined through its investigation that Reeds Cove residents were in immediate danger due to an alleged perpetrator of abuse working at the facility. Rose told Underwood that one of the reasons Reeds Cove was put on immediate jeopardy status was because it failed to investigate the allegation.

Upon becoming aware of the immediate jeopardy status, Reeds Cove had a regulatory obligation to protect its residents while investigating the circumstances causing immediate jeopardy. Reeds Cove's policy for situations alleging resident abuse provided that "[a]ny alleged perpetrator of abuse, neglect, or exploitation will be immediately suspended from employment and will leave the employment property and not return to the property until the investigation by the facility and law enforcement is complete and the incident is resolved." KDADS did not identify Odhuno or any other specific person as the alleged perpetrator at the time of the immediate jeopardy announcement.

After the immediate jeopardy announcement, Underwood discussed with Rose the scope of the suspensions Reeds Cove would impose to protect its residents. Underwood testified that she initially proposed suspending black, male nurses, although Rose does not recall whether she initially made this proposal or not. Upon Rose's questioning, Underwood believed that Rose did not view suspending only nurses to be sufficient, so Underwood proposed suspending all black male employees. Rose did not challenge this proposal, and Underwood admits that it was her decision to suspend the black male employees.

Although Rose knew that the complaint submitted to KDADS identified a possible alleged perpetrator as a black male CNA named Paul, she did not share this information with Reeds Cove on July 31 because at that point her investigation had not corroborated it.

Underwood consulted Axiom employees before and after making the decision to suspend all black male employees. Summers (Axiom) testified regarding the suspensions as follows:

Q. What do you recall the description that Miss Underwood said that Miss Rose had described as the alleged perpetrator?

A. I believe it was black male nurses.

Q. Okay. So did you encourage or oppose the suspension of all black male staff?

A. It was just a collaboration. I don't - I don't remember specifically opposing or encouraging. I just said if this is what - how they - Christan [Rose] identified the alleged perpetrator, we need to include everybody that falls in that category.

Reeds Cove began implementing the suspensions immediately following the...