Wright v. SLH Bethel Park Manager, LLC

DANA WRIGHT, Plaintiff, v. SLH BETHEL PARK MANAGER, LLC, Defendant.

2:19-cv-01425

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

May 20, 2021

MEMORANDUM OPINION

Plaintiff Dana Wright ("Wright") alleges that she was terminated from her employment by Defendant SLH Bethel Park Manager, LLC ("SLH") in violation of the Pennsylvania Whistleblower Law, 43 P.S. §§ 1421-28. Wright also asserts a common law claim of wrongful discharge. SLH denies any liability to Wright.

Presently pending is SLH's motion for summary judgment (ECF No. 27). For the reasons that follow, its motion will be granted.¹

I. Brief Procedural History

Wright commenced this action in the Court of Common Pleas of Allegheny County on September 25, 2019, naming as Defendant "Senior Lifestyles, Inc." She alleges in Count I that her termination violated the Whistleblower Law and in Count II, she asserts that she was wrongfully discharged.

On November 8, 2019, SLH removed the action to this Court on the basis of diversity jurisdiction. SLH represented that as Wright's employer, it was the proper defendant (ECF No. 1.)The parties' joint motion to change the caption of the case to name SLH as the defendant (ECF No. 15) was granted (ECF No. 17).²

Following the completion of discovery, SLH moved for summary judgment (ECF No. 27) and its motion has been fully briefed (ECF Nos. 30, 32, 34).

II. Relevant Factual Background

A. Wright's Professional Background and Duties With SLH

Wright is a licensed practical nurse (LPN), who is licensed by the Pennsylvania Board of Nursing. She has managed senior living facilities since 1996. She was hired in 2014 to serve as the Executive Director of a senior living facility in Greentree, Pennsylvania ("the South Hills facility") that is owned and operated by SLH, a wholly-owned affiliate of Senior Lifestyle Management Holdings, Inc. ("Senior Lifestyle"). Senior Lifestyle is an operator of senior living communities that provide independent living, assisted living, and memory care housing options for seniors. As Executive Director of the South Hills facility, she was the highest-ranking on-site employee of the facility and was responsible for hiring and managing staff and overseeing the day to day operations of the facility. (Defendant's Concise Statement of Material Facts ("DCSMF") ¶¶ 1, 3-6.)

While working as the Executive Director of the South Hills facility, Wright was responsible for reporting disciplinary issues to state regulatory authorities as required. She was successful in this role and, after working as Executive Director for approximately two years, was promoted tothe position of Operations Specialist with Senior Lifestyle. In this position, she was responsible for working with Senior Lifestyle communities to ensure compliance with its policies and expectations. After approximately one year as Operations Specialist, Wright was again promoted, this time to the position of Regional Director of Operations, overseeing all of Senior Lifestyle's facilities in the mid-Atlantic region. (Id. ¶¶ 7-9.)

As Regional Director of Operations, Wright was responsible for ensuring that Senior Lifestyle's mid-Atlantic facilities met the company's operational expectations and external regulatory requirements and complied with internal policies and procedures. In that capacity, she was not responsible for reporting disciplinary or operational issues to applicable state regulatory bodies. Rather, the Executive Directors working under her supervision were responsible for complying with state reporting requirements. (Id. ¶¶ 10-11.)

In 2018, after working as Regional Director of Operations for approximately two years, Wright decided that she wanted to return to an Executive Director position. She voluntarily sought this change in her role with the company. After she made this decision, she applied for and was hired by SLH as the first Executive Director at The Sheridan at Bethel Park, a newly opened facility located in the South Hills area of Pittsburgh that was run by SLH. Her job responsibilities were substantially similar to her job responsibilities when she served as the Executive Director of the South Hills facility. Specifically, she was responsible for hiring and managing staff and overseeing the day-to-day operations of the facility. (Id. ¶¶ 12-13.)

As Executive Director of The Sheridan at Bethel Park, Wright reported to Karin Bateman ("Bateman"), Senior Vice-President of Operations for Senior Lifestyle. Because The Sheridan at Bethel Park was a newly-opened facility, Wright was responsible for hiring almost all of the staff at the facility. Among the staff members she hired was "Jane Doe," a nurse who was hired as thefacility's Director of Health and Wellness. Doe reported directly to Wright. (Id. ¶¶ 14-16.)³

B. Wright's Involvement in the Jane Doe Investigation

On June 12, 2019, Senior Lifestyle received a complaint from "John Roe," an employee of The Sheridan at Bethel Park. The complaint stated: "I would like to report the Sheridan at bethel park [sic] for them remaking narc sheets and wasting narcs when the carts are wrong." In response to the complaint, the company initiated an investigation into the allegations made by Roe. The investigation was conducted by Regional Human Relations Director Cathy Ahlert ("Ahlert"), Divisional Director of Health and Wellness Mindy Podraza ("Podraza"), and Bateman. (Id. ¶¶ 17-19.)

Shortly thereafter, Wright was informed that an investigation was being undertaken with respect to a complaint that had been received. She was asked to assist in this investigation by obtaining information concerning the allegations had been made by Roe. At the request of Senior Lifestyle, Wright obtained a deceased resident's narcotics records but was not told why she was asked to do so. (Id. ¶¶ 20-22.)

Wright asked Doe why she had been asked to provide the records of the deceased resident. After initially saying she did not know, Doe admitted to Wright that she had re-created the narcotics records, destroyed the originals and forged caregivers' signatures on the re-created sheets. Doe's admission was Wright's first notice of wrongdoing. (Plaintiff's Counterstatement of Material Facts Precluding Summary Judgment ("PCMFPSJ") ¶ 21-22.)⁴; see also DCSMF ¶¶ 23-24.)

According to Wright, Jana Faisant ("Faisant"), the Business Office Manager, was present during a conversation between Wright and Doe and heard Doe admit to re-creating the narcotics sheets and signing the names of other caregivers on these documents. Faisant also was present at conversations with these caregivers who confirmed that they did not sign the re-created narcotics sheets and did not know that Doe had forged their names on them. (PCMFPSJ ¶¶ 58-60.)

While this investigation was pending, Podraza left the company and was replaced by Michelle Tordoff ("Tordoff"), who assumed Podraza's role in the investigation. Wright told Tordoff of her discussion with Doe, and Tordoff relayed the information to the other Senior Lifestyle executives involved in investigating Doe. Additionally, Wright obtained Doe's statement and forwarded it to Tordoff. As part of the investigation, Tordoff and Ahlert interviewed Doe and at Tordoff's request, Wright obtained statements from the employees whose signatures appeared on the re-created narcotics count documents. Tordoff and Ahlert also reviewed the documentation that Wright obtained for them. (DCSMF ¶¶ 25-27.)

Ultimately, it was determined that Doe had impermissibly recreated narcotics count records and did not properly note that they were duplicates or that changes had been made to the original record. The investigation revealed that Doe and her staff had used an incorrect unit of measure (number of syringes rather than the number of milliliters) on the original narcotics sheets and then compounded the problem by recreating them rather than noting the error on the originals.

According to SLH, the investigation did not confirm that Doe forged her subordinates' signatures, and Doe denied doing so when interviewed as part of the investigation.⁵ Doe's conduct violated Senior Lifestyle's policy and nursing best practices. (DCSMF ¶¶ 28-31.) Wright assertsthat Doe's conduct also violated Pennsylvania nursing regulations and personal care facility regulations.

In an email message dated July 19, 2019, Tordoff wrote that she "had a staff statement that the signature on the sheet is not hers" and that the incident "will be reportable to the Board of Nursing in PA due to it being falsification of documentation, but I will wait to do so until the investigation is complete." (PCMFPSJ ¶¶ 31, 75.) At her deposition, Tordoff confirmed the applicability of Standards of Nursing Conduct, 49 Pa. Code § 21.148, and the regulations concerning Personal Care Facilities, 55 Pa. Code §§ 2600.251, 2600.187, as well as the fact that original medical records should never be destroyed. (Id. ¶¶ 101-02.)

Despite Wright's report to Ahlert and Tordoff that Doe had admitted to forging signatures on the re-created narcotics documents, Tordoff changed her mind and decided not to report Doe's actions to the State Board of Nursing. (Id. ¶¶ 93, 103-04.) Tordoff testified that she did not report Doe's conduct because she could not confirm that Doe had committed a forgery. (Defendant's Response to Plaintiff's Counter-Statement of Material Facts ("DRPCMF") ¶¶ 75, 104.)⁶

Senior Lifestyle suspended Doe without pay, required her to be re-trained on policies and best practices, and gave her a final written warning. The decision to suspend and re-train Doe, rather than terminate her, was made by Tordoff and Ahlert, with Bateman's support. (DCSMF ¶ 32.) Wright contends that the real reason the decision was made not to fire Doe was that because she was pregnant, she was in a protected class. (PCMFPSJ ¶¶ 32, 110.)

Wright was informed of this decision during a conference call with Tordoff, Ahlert, and Faisant on July 25, 2019. During this call, Wright...