Young v. CHS Middle E., LLC

RONALD P. YOUNG, et al., Plaintiffs, v. CHS MIDDLE EAST, LLC, Defendant.

Case No. 1:13-cv-000585-GBL-JFA

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION

ENTERED: August 20, 2013

MEMORANDUM OPINION AND ORDER

THIS MATTER is before the Court on Defendant CHS Middle East LLC's ("CHSME") Motion to Dismiss for Failure to State a Claim. (Doc. 5.) This case concerns Plaintiffs' claim that CHSME wrongfully terminated their employment in retaliation for engaging in protected activity. The issue before the Court is whether Plaintiffs state a claim for retaliation under the anti-retaliation provision of the False Claims Act ("FCA") where Plaintiffs allege that after they complained to CHSME management and the Department of State regarding CHSME's lack of written medical protocols, which Plaintiffs allege violated the terms of CHSME's government contract, Defendants terminated their employment in retaliation.

The Court holds that Plaintiffs fails to state an FCA retaliation claim because Plaintiffs' pleadings fail to sufficiently demonstrate engagement in protected activity in furtherance of a qui tam action insofar as their allegations do not sufficiently suggest that the substance of their complaints at the time involved false claims or CHSME's fraudulent conduct in performing its government contract, such that their complaints were attempts to stop an FCA violation. Therefore, the Court grants Defendant's Motion to Dismiss Plaintiffs' First Amended Complaint for failure to state a retaliation claim under the FCA.

I. BACKGROUND

On Defendant's Motion to Dismiss for Failure to State a Claim, the Court accepts as true the allegations of Plaintiffs' Amended Complaint. See, e.g., LeSueur-Richmond Slate Corp. v. Fehrer, 666 F.3d 261 (4th Cir. 2012). Defendant CHSME was contracted by the United States Department of State for $61.5 million to provide medical services at facilities in Iraq. (Am. Compl. ¶ 13.) Pursuant to the contract, Defendant was required to "[e]nsure that the [health care providers] are properly trained and certified prior to arrival in theater and that they stay proficient while providing health care." (Id. ¶ 14.) Plaintiffs Ronald and Ramona Young ("Plaintiffs") were employed by CHSME under one-year employment contracts during July and August 2011, until their termination in January 2012. (Id. ¶¶ 1, 9-10, 15, 73.) During their employment with CHSME, Plaintiffs were both Medical Surgery Registered Nurses stationed at Sather Air Force Base in Iraq. (Id. ¶¶ 15-21.)

Upon arrival at their stations, Plaintiffs noticed the absence of written procedures and protocols governing the quality of medical care provided by CHSME. (Id. ¶ 19.) Mr. Young alerted his supervisors about the lack of directives and requested that CHSME provide them; however, CHSME never did. (Id. ¶ 20.) Similarly, upon Mrs. Young's arrival, she also noticed CHSME's lack of written protocols. (Id. ¶ 23.) Together, Plaintiffs demanded CHSME respond to their requests for written directives from the facility's nurse manager, Jim Spivey ("Spivey"). (Id. ¶ 27.) Mr. Spivey never provided written protocols, but rather gave verbal "ad hoc instructions" to Plaintiffs. (Id. ¶ 28.) Plaintiffs also reported complaints to Director Heidi Cox, who responded that Plaintiffs "were being good patient advocates" and requested time to address Plaintiffs' concerns, but Cox never took action. (Id. ¶ 30.)

In the meantime, Plaintiffs observed critical quality control issues concerning CHSME patients. (Id. ¶ 31.) Specifically, a patient, identified only as "Patient One," was sedated and intubated without prior consent. (Id. ¶ 31.) The CHSME employee who performed the intubation was not qualified to carry out the procedure and was not supervised by an appropriately certified nurse anesthetist. (Id. ¶ 35.) Patient One experienced complications during the intubation procedure resulting from the employee's difficulty inserting the tube, causing Patient One to suffer from aspirated fluid in his lungs. (Id. ¶ 34.) As a result, Plaintiffs requested that a quality control review panel convene to review the substandard care being provided to Patient One, but Staff Manager Tom Nagel refused. (Id. ¶ 39.)

Shortly thereafter, another issue arose in connection with the treatment of a different patient, "Patient Two." (See id. ¶¶ 45-47.) The same CHSME practitioner who had treated Patient One was now experiencing problems placing a line in Patient Two, who was unresponsive and being considered for withdrawal of care by the CHSME Ethics Board. (Id. ¶¶ 45-46.) However, the nurse practitioner's difficulty with placing the line elicited a pain response from Patient Two. (Id. ¶ 47.) Despite such response, however, the practitioner failed to alert the Ethics Board and directed that CHSME nurses withdraw care. (Id. ¶¶ 48-55.) As a result, Patient Two nearly died before he was ultimately transferred to another facility for treatment. (Id. ¶ 55.)

Subsequently, at Plaintiffs' request, CHSME Director of Public Health and Quality Assurance Paul DeVane ("DeVane"), convened an Ethics Committee to review the quality of care provided to Patient Two. (Id. ¶ 56.) The following day, Mr. DeVane informed Plaintiffs that the Committee's "solution to the problem" would be to have Plaintiffs work separate shifts and if they disagreed, they were "free to resign." (Id. ¶¶ 56-58.) Prompted by this discussion,Plaintiffs wrote emails to CHSME executives complaining of the substandard care and contacted Mr. DeVane's supervisor and requested a meeting, but the supervisor never took action. (Id. ¶¶ 59, 62-63.) Unsuccessful with their attempts at CHSME, Plaintiffs then contacted the United States Department of State's Medical Director, Dr. Mark Cohen, to report the substandard care provided by CHSME under the controlling government contract. (Id. ¶ 61.) Immediately thereafter, Plaintiffs were notified that they had been banned from the medical facilities and were assigned a departure date from Iraq. (Id. ¶¶ 64-67.)

Following their return to the United States, Plaintiffs continued to engage CHSME officials seeking understanding of the events that had transpired in Iraq and continued their efforts to alert CHSME of its substandard medical care and their perceived retaliation against them. (Id. ¶ 69.) Despite their efforts, Plaintiffs were ultimately terminated. (Id. ¶ 73.)

II. PROCEDURAL HISTORY

Plaintiffs originally filed their complaint in Virginia state court against CHSME alleging wrongful discharge under Virginia law and retaliation under the Florida Whistleblower Protection Act. (See Def.'s Ex. 3, Doc. 1-3.) CHSME removed that action to this Court, arguing that there was diversity of citizenship between the parties. (See Jan. 18, 2013 Order, Young v. CHS Middle East, 1:12-cv-1202, Doc. 31.) Upon Plaintiffs' motion to remand, the Court permitted the parties to engage in a brief period of discovery concerning CHSME's principal place of business. (Id.) Discovery revealed that CHSME's "nerve center" for diversity purposes was located in Virginia, destroying complete diversity, and thereby depriving the Court of subject matter jurisdiction. (Id.) Accordingly, the Court remanded the matter to Virginia. (Id.) On remand, the Virginia state court dismissed Plaintiffs' state law claims. (Def.'s Br. at 2.)

Plaintiffs then filed an Amended Complaint in Virginia state court alleging retaliation under the False Claims Act. (Id. at 2; Ex. 3, Doc. 1-3.) CHSME subsequently removed the action to this Court on the basis of federal question jurisdiction. (See Doc. 1.) The Amended Complaint alleges that Plaintiffs engaged in protected activity on numerous occasions when they expressed concerns, both to Defendant and the government, that the quality of care Defendant delivered did not adequately "meet the quality and standard of medical services [and care that] the Department of State was paying for" under the contract. (Am. Compl. ¶ 80.) On June 4, 2013, CHSME moved to dismiss Plaintiffs' claims. (See Doc. 5.) CHSME's Motion to Dismiss for Failure to State a Claim is currently before the Court. (Id.)

III. STANDARD OF REVIEW

A motion to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) should be granted unless the complaint "states a [facially] plausible claim for relief under Rule 8(a). Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Rule 8 requires a complaint to be "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A complaint may be dismissed under Rule 12(b)(6) if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).

"[T]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Layman v. MET Labs., Inc., 2012 WL 4018033, at *4 (D. Md. Sept. 12, 2012) (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). In considering a Rule 12(b)(6) motion, the Court must construe the complaint in the light most favorable to the plaintiff, read the complaint as a whole, and take the facts asserted therein as true. LeSueur-Richmond SlateCorp., 666 F.3d 261, 264 (4th Cir. 2012) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). The Court attaches no such assumption to those "naked assertions" and "unadorned conclusory allegations" devoid of "factual enhancement." Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 543 (4th Cir. 2013) (citations omitted). Nor is the court obligated to assume the veracity of the legal conclusions drawn from the facts alleged. Adcock v. Freightliner LLC, 550 F.3d 369, 374 (4th Cir. 2008) (citing Dist. 28, United Mine Workers of Am., Inc. v. Wellmore Coal Corp., 609 F.2d 1083, 1085-86 (4th Cir. 1979)). Thus, the Court's review involves the...