Grace Prater v. Ndt Care Services, LLC D/B/A Homeplace Support Services ( 2022 )

RENDERED: SEPTEMBER 9, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0241-MR
GRACE PRATER APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 14-CI-04757
NDT CARE SERVICES, LLC D/B/A
HOMEPLACE SUPPORT SERVICES APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND MCNEILL, JUDGES.
MCNEILL, JUDGE: In 2014, Appellant, Grace Prater (Prater), was employed by
Appellee, NDT Care Services LLC d/b/a Homeplace Support Services
(Homeplace), as a direct services professional. Her duties included managing adult
individuals with mental and intellectual disabilities. She was hired on an “as
needed” basis to care exclusively for one terminally ill patient, David Witt (Mr.
Witt), at a Homeplace residential home. While attending to Mr. Witt on March 28,
2014, Prater could not locate his narcotic pain medication. Having mistakenly
concluded that the medication was either missing or stolen, Prater notified her
Homeplace residential manager, Tricia Caldwell. However, Prater failed to timely
report the incident to the relevant government authorities, which the parties agree
is required under Homeplace’s policies and Kentucky law. Prater and Caldwell
received written reprimands as a result.1
Soon thereafter, Mr. Witt was transferred to a different facility due to
his deteriorating condition and requests from his cousin/power of attorney. Mr.
Witt was then transferred back to Homeplace for a brief period before he passed
away. Prater was removed from the work schedule but remained on the
Homeplace roster on an “as needed” basis. On October 31, 2014, Prater resigned
from her position at Homeplace. She then filed suit in Fayette Circuit Court
1
In its order, the circuit court cites to Kentucky Revised Statute (KRS) 216B.165(1), which
requires employees to report certain deficiencies to the health care provider and permits
reporting to state or federal agencies. See also Hughes v. Norton Healthcare, Inc., No. 2019-
CA-0222-MR, 2020 WL 7295190, at *7 (Ky. App. Dec. 11, 2020), discretionary review denied
(Aug. 18, 2021) (citing authority and clarifying that there is a remedy available under KRS
216B.165(1) because of KRS 446.070).
The court’s order further provides that “[r]eporting is required upon discovery of
circumstances indicating possible abuse or neglect related to an individual receiving services
under the Kentucky Medicaid Michelle P. Waiver program.” It appears that Mr. Witt received
benefits pursuant to that program. See 907 Kentucky Administrative Regulation (KAR)
1:835(11)(5)(b)2.
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alleging, wrongful discharge – retaliation, slander, and outrage.2 The circuit court
granted summary judgment in favor of Homeplace. Prater now appeals to this
court as a matter of right. For the following reasons, we affirm.
STANDARD OF REVIEW
A motion for summary judgment should be granted “if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” CR3 56.03. The Kentucky Supreme Court further explained this summary
judgment standard in Steelvest, Inc. v. Scansteel Service Center, Inc.:
While it has been recognized that summary judgment is
designed to expedite the disposition of cases and avoid
unnecessary trials when no genuine issues of material fact are
raised, . . . this Court has also repeatedly admonished that the
rule is to be cautiously applied. The record must be viewed in a
light most favorable to the party opposing the motion for
summary judgment and all doubts are to be resolved in his
favor. Even though a trial court may believe the party opposing
the motion may not succeed at trial, it should not render a
summary judgment if there is any issue of material fact. The
trial judge must examine the evidence, not to decide any issue
of fact, but to discover if a real issue exists. It clearly is not the
purpose of the summary judgment rule, as we have often
2
We will refer to the tort of outrage as a claim for the intentional infliction of emotional distress
(IIED). See Craft v. Rice, 671 S.W.2d 248 (Ky. 1984); Kroger Co. v. Willgruber, 920 S.W.2d 61(Ky. 1996).
3
Kentucky Rules of Civil Procedure.
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declared, to cut litigants off from their right of trial if
they have issues to try.
807 S.W.2d 476, 480 (Ky. 1991) (citations omitted). “Because no factual issues
are involved and only a legal issue is before the court on the motion for summary
judgment, we do not defer to the trial court and our review is de novo.” Univ. of
Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. App. 2013) (citation omitted). With
these standards in mind, we turn to the applicable law and the facts of the present
case.
ANALYSIS
Prater argues that the circuit court erred in holding no genuine issues
of material fact existed as to her various claims. For the following reasons, we
disagree. The proper analysis in retaliation cases was aptly summarized in
Kentucky Department of Corrections v. McCullough:
A claim for unlawful retaliation requires the
plaintiff to first establish a prima facie case of retaliation,
which consists of showing that “(1) she engaged in a
protected activity, (2) she was disadvantaged by an act of
her employer, and (3) there was a causal connection
between the activity engaged in and the [defendant]
employer’s act.” Kentucky Center for the Arts v.
Handley, Ky. App., 827 S.W.2d 697, 701 (1991), citing
De Anda v. St. Joseph Hospital, 671 F.2d 850, 856 ([5th
Cir.] 1982). In a case where there is no direct evidence
of retaliation, as is the case here, the burden of
production and persuasion follows the familiar
McDonnell Douglas[4] framework. Under this
4
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
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framework, after the plaintiff establishes a prima facie
case of retaliation, the burden of production shifts to the
defendant to show a non-retaliatory reason for the
adverse employment decision that disadvantaged the
plaintiff. Id. After the defendant has met this burden,
“the McDonnell Douglas framework is no longer
relevant.” St. Mary’s Honor Center v. Hicks, 509 U.S.
502, 510, 113 S. Ct. 2742, 2748, 125 L. Ed. 2d 407, 418
(1993). This is because “the McDonnell Douglas
presumption is a procedural device, designed only to
establish an order of proof and production.” Id. at 521,
113 S. Ct. at 2755, 125 L. Ed. 2d. at 425 (emphasis in
original). At this point, the case then proceeds with the
plaintiff having to meet her initial burden of persuading
the trier of fact by a preponderance of the evidence that
the defendant unlawfully retaliated against her. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 143,
120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105, 117 (2000).
123 S.W.3d 130, 133-34 (Ky. 2003), as modified on denial of reh’g (Jan. 22,
2004).5 It is undisputed by the parties that in reporting the allegedly missing
medication, Prater engaged in protected activity and that Homeplace was aware
that she had done so. However, her claim fails to satisfy the remaining elements
necessary to maintain a retaliation claim beyond summary judgment.
First, Prater alleges that the adverse employment action she suffered
was that her work hours were reduced after Mr. Witt’s death. She does not dispute
that she remained on the employment roster on an “as needed” basis. Notably, she
5
See also, e.g., Colorama, Inc. v. Johnson, 295 S.W.3d 148, 152 (Ky. App. 2009); Brooks v.
Lexington-Fayette Urb. County Hous. Auth., 132 S.W.3d 790, 803 (Ky. 2004), as modified on
denial of reh’g (May 20, 2004).
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has not countered Homeplace’s argument that she was hired exclusively to care for
Mr. Witt, which clearly would have resulted in a change in her scheduling after his
death. Furthermore, Prater does not dispute that she resigned from her position
thereafter. Therefore, it is difficult to conclude that any “real issue exists” that
would necessitate a trial here. Steelvest, 807 S.W.2d at 480.
As to causation, Prater’s argument also lacks any genuine issue of
material fact that would negate a judgment as a matter of law in this instance. It
was Homeplace that originally reprimanded Prater and her supervisor for failing to
timely file the necessary documentation resulting from the medication incident.
Therefore, it does not logically follow that Homeplace would have punished Prater
for reporting the incident for which she was initially reprimanded for not reporting.
In support of her arguments, Prater cites to the affidavit of Bobby
King, who is identified in that document as having “previously worked for
Homeplace.” The affidavit includes a very sparse factual basis and summarily
concludes that “Homeplace took away Grace Prater’s hours and terminated her
employment because of her report.” Prater also claims that the “temporal
proximity between Ms. Prater engaging in the protected activity and the adverse
employment action is enough to give rise to a genuine issue of fact on the causal
connection.” In support of her temporal argument, Prater cites to a responsive
email from a Homeplace official dated April 21, 2014, indicating that Prater was
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no longer employed by Homeplace. The circuit court was apparently unconvinced
and concluded that “[a]ll evidence in the record, including Prater’s resignation
letter months after the relevant time-period, is contrary to proof of a wrongful
discharge by Homeplace.” (Emphasis added.) We find Prater’s resignation letter
dated October 31, 2014, to be particularly instructive here. Therein, Prater
explained that she was resigning because she would not be able to attend “trainings
necessary for [her] continued employment. It has been a pleasure working for you
all.” That same day, Homeplace executed an employee action form noting that
Prater remained eligible for rehire.6
Even when viewing the evidence in the light most favorable to Prater,
we are inclined to conclude that neither the King affidavit nor Prater’s appeal to
temporal proximity create a genuine issue of material fact that would be
appropriate to submit to a jury. See Steelvest, 807 S.W.2d at 480 (“summary
judgment is designed to expedite the disposition of cases and avoid unnecessary
trials . . . .”). Nevertheless, even if we were to strain the limits of Steelvest in favor
of Prater’s prima facie case, the burden would then shift to Homeplace to present a
lawful alternative reason for the alleged “adverse employment” decision. Then,
Prater would have to counter with evidence that the stated lawful reason was
6
We note that this form indicated, without further explanation, that Prater was terminated.
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“merely a pretext to cover the actual discrimination.” Handley, 827 S.W.2d at 699.
This, Prater cannot achieve under the evidence presented.7 Our analysis in
McCullough again proves instructive:
To meet her burden of persuasion, the plaintiff
“must be afforded the opportunity to prove by a
preponderance of the evidence that the legitimate reasons
offered by the defendant were not its true reasons, but
were a pretext for [retaliation].” Reeves [v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143, 120 S. Ct.
2097, 2106, 147 L. Ed. 2d 105, 117 (2000)]. Proof that
the defendant’s non-retaliatory reasons are “unworthy of
credence is simply one form of circumstantial evidence
that is probative of intentional discrimination, and it may
be quite persuasive.” Id. at 147, 120 S. Ct. at 2108, 147
L. Ed. 2d at 119-20. Consequently, “a plaintiff’s prima
facie case, combined with sufficient evidence to find that
the defendant’s asserted justification is false, may permit
the trier of fact to conclude that the employer unlawfully
[retaliated against the plaintiff].” Id. at 148, 120 S. Ct. at
2109, 147 L. Ed. 2d at 120. In other words, a plaintiff’s
prima facie case plus proof of a pretext may constitute
sufficient evidence to survive a motion for a directed
verdict.
7
We are aware that the circuit court did not proceed to this burden shifting analysis because it
determined Prater did not satisfy her prima facie case. However, out of an abundance of caution,
we will proceed with the burden shifting analysis. See Goetz v. Asset Acceptance, LLC:
“[T]he rule in this jurisdiction that the judgment of a lower court can be affirmed
for any reason in the record.” Fischer v. Fischer, 348 S.W.3d 582, 591 (Ky.
2011). And, “[i]f an appellate court is aware of a reason to affirm the lower
court’s decision, it must do so, even if on different grounds.” Mark D. Dean,
P.S.C. v. Commonwealth Bank & Trust Co., 434 S.W.3d 489, 496 (Ky. 2014)
(citing Fischer v. Fischer, 197 S.W.3d 98, 103 (Ky. 2006) (“If the summary
judgment is sustainable on any basis, it must be affirmed.”)).
513 S.W.3d 342, 345 (Ky. App. 2016).
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On appellate review, when determining whether
the trial court erred in denying a motion for directed
verdict, the non-moving party’s evidence is taken as true
and the non-moving party is entitled to all reasonable
inferences that may be made from the evidence. Lewis v.
Bledsoe Surface Mining, Ky., 798 S.W.2d 459, 461
(1990). When viewed in this light, McCullough’s prima
facie case of retaliation plus her proof of pretext were
sufficient to survive Appellants’ motion for a
directed verdict.
McCullough, 123 S.W.3d at 134. Although the issue before the Court in
McCullough concerned an appeal from a denial of a directed verdict, we believe
that summary judgment is proper here for the following specific reasons: 1) Prater
was hired on a limited basis; 2) her working hours were reduced after her sole
patient was transferred and then died; and 3) she resigned citing reasons
completely unrelated to her present complaint and was still considered by
Homeplace to be eligible for rehire. Therefore, unlike McCullough, Prater’s prima
facie case of retaliation plus any proof of pretext gleaned from this record would
be insufficient to meet her burden at trial. Lastly, we need not belabor Prater’s
remaining claims of IIED and slander because she has failed to provide essential
evidential support for those claims that would negate a judgment as a matter of law
in this instance. Therefore, we affirm the circuit court’s summary judgment in
favor of Homeplace.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Laraclay Parker Scott Crosbie
Lexington, Kentucky Lexington, Kentucky
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