Opinion
No. A-12-240
02-12-2013
LEAHANN GILL, APPELLANT, v. VETTER HOLDING, INC., AND PAPILLION MANOR, INC., APPELLEES.
LeahAnn Gill, pro se. Mary L. Hewitt and Mathew T. Watson, of McGill, Gotsdiner, Workman & Lepp, P.C., L.L.O., for appellees.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Sarpy County: WILLIAM B. ZASTERA, Judge. Affirmed.
LeahAnn Gill, pro se.
Mary L. Hewitt and Mathew T. Watson, of McGill, Gotsdiner, Workman & Lepp, P.C., L.L.O., for appellees.
IRWIN, MOORE, and PIRTLE, Judges.
PIRTLE, Judge.
INTRODUCTION
LeahAnn Gill appeals from the district court's pretrial dismissal of Gill's wrongful discharge claim; the district court's directed verdict in favor of Vetter Holding, Inc. (VHI), on a whistleblower claim; and the jury's determination in favor of Papillion Manor, Inc., on Gill's whistleblower claim against Papillion Manor.
BACKGROUND
Papillion Manor is a skilled nursing facility that provides short-term rehabilitation and long-term care to the elderly. Vetter Health Services, Inc. (VHS), provides external support, review, and additional resources to 32 nursing home facilities, including Papillion Manor.
In early July 2007, Gill, a registered nurse, interviewed for the minimum data set (MDS) coordinator position at Papillion Manor. During the interview, Gill said she had approximately 7 months of experience completing MDS forms and she had taken MDS classes. Gill was hired by Papillion Manor for the position and was responsible for filing all of the MDS forms for Papillion Manor. MDS forms are used to compile data about patients and determine how Medicare or Medicaid will be paid. Gill received additional training and 2 weeks of orientation when she was hired. She began employment on July 30, 2007.
On September 13, 2007, one of the Papillion Manor residents contracted scabies, an infectious and contagious disease. Scabies is of particular concern in a nursing home; as such, Papillion Manor has a protocol which involves containing the initial diagnosis as soon as possible, to avoid the spread of the disease. At the time of the diagnosis, Papillion Manor's administrator, Rosalyn Burke, was out of the office, and upon being contacted by Papillion Manor's director of nursing, Burke instructed the director of nursing to follow the protocol. Papillion Manor's medical director, Dr. Fredrick Schwartz, could not be reached. The director of nursing used Dr. Schwartz' signature stamp to procure the necessary cream to treat the scabies, without prior authorization.
Gill participated in the application of the cream on September 13, 2007. Gill found out there was no order from Dr. Schwartz and was concerned because she assisted in administering the cream. She testified that she self-reported her actions to the Department of Health and Human Services and testified that she encouraged other nurses to do the same.
Burke was informed of the use of Dr. Schwartz' stamp upon his return to Papillion Manor, and the director of nursing was reprimanded for failing to obtain prior approval.
Gill testified that after September 18, 2007, her coworkers no longer engaged with her in the "usual chitchat," she was not invited to eat with her coworkers, they no longer gave her the information or packets she needed, and nurses and staff would not answer her questions. She said she could no longer get answers from anybody to be able to fill out her MDS forms correctly. In her brief, Gill said she broke out in hives because of the environment and had an "impending doom feeling." Brief for appellant at 4. She also stated that she was told by her supervisors she was not doing her job properly and was "just not getting it" without explanation.
She resigned her position on November 16, 2007. She brought this action on theories of wrongful or constructive discharge in violation of Nebraska public policy and retaliatory constructive discharge under statutes designed to protect whistleblowers.
Prior to trial, VHI and Papillion Manor filed a motion to dismiss count two of the complaint for failure to allege a recognized Nebraska public policy in support of her wrongful discharge allegation. This motion was granted at a pretrial hearing held the morning of the trial. Only the whistleblower claim was tried.
At trial, Dr. Schwartz, Burke, Papillion Manor's assistant director of nursing, and Papillion Manor's care plan coordinator testified as follows: Gill had not informed them that she believed applying the cream was illegal, Gill had not told them she contacted DHHS, and Gill had not told them to self-report.
VHI and Papillion Manor also presented evidence that Gill had meetings with Burke to discuss her perceived mistreatment and the difficulties she had preparing the forms required of her position. Gill did not state in these meetings that she believed she was being treated unfairly as a result of the events surrounding the scabies treatment plan. After these meetings, Burke scheduled weekly followup meetings with Gill to discuss the communication breakdown between Gill and her coworkers and to review the MDS forms.
Burke testified Gill made numerous errors on the MDS forms and scheduled additional training and oversight to help Gill improve upon these errors. Gill did not dispute she made errors. She did not say the MDS forms were inaccurate because information was not provided to her by coworkers.
Gill told Burke that she believed someone was changing her forms, and Burke contacted VHS to request that a corporate representative visit to investigate this allegation.
An outside nurse consultant with VHS visited the facility to investigate Gill's allegation and assist her with the MDS form errors. The consultant determined that the forms had not been changed and that due to a "significant" number of errors, Gill needed additional MDS educational training. The consultant reviewed 10 MDS forms completed by Gill and concluded that Gill made more than 70 errors. Gill admitted a review of her completed forms was appropriate, and Gill was advised that she needed to show improvement by reducing the number of errors in half to avoid termination of her employment.
On November 13, 2007, Chris Pokorny, a resident care coordinator for VHS, visited with Gill for 4 or 5 hours. Pokorny testified that when she and Gill were alone together, Gill told her that the staff was out to get her because Gill reported the scabies treatment incident.
Pokorny testified that it was apparent Gill did not adequately familiarize herself with the residents to accurately fill out the MDS forms. Gill also admitted to Pokorny that she had not performed the tests necessary to fill out the forms. Pokorny concluded that Gill was improperly preparing the forms and that all of the forms Gill prepared should be checked for accuracy.
Despite these issues, Gill's pay was never reduced, her employer did not deny continuing education benefits or paid time off, she was not suspended, she was not placed on probation, she was not demoted, or her employment was not terminated. Shortly after the meetings with Pokorny, Gill submitted her letter of resignation.
At the close of Gill's case in chief, VHI and Papillion Manor moved the court for a directed verdict in favor of VHI because Gill presented no evidence to support a whistleblower claim against them. The court granted this motion, and VHI was dismissed. The only remaining claim was her whistleblower claim against Papillion Manor. After 3 days of testimony and evidence, the case was submitted to the jury, which returned a verdict in favor of Papillion Manor.
ASSIGNMENTS OF ERROR
Gill's assignments of error, consolidated and restated, include the following: (1) The district court erred in sustaining VHI and Papillion Manor's motion to dismiss count two of Gill's complaint; (2) the trial judge "erred in Pretrial Motion Rulings T 6-20 line 1-9," specifically with regard to Gill's resume; and (3) the trial court erred in "recognizing legal standard in Whistleblowing cases."
STANDARD OF REVIEW
An appellate court reviews de novo a lower court's dismissal of a complaint for failure to state a claim. Britton v. City of Crawford, 282 Neb. 374, 803 N.W.2d 508 (2011).
A jury verdict "will not be set aside unless clearly wrong, and it is sufficient if any competent evidence is presented to the jury upon which it could find for the successful party." World Radio Labs. v. Coopers & Lybrand, 251 Neb. 261, 274, 557 N.W.2d 1, 10 (1996).
A civil verdict "will not be set aside where evidence is in conflict or where reasonable minds may reach different conclusions or inferences, as it is within the jury's province to decide issues of fact." Ratigan v. K.D.L., Inc., 259 Neb. 283, 284, 609 N.W.2d 376, 377 (2000).
Although an appellate court ordinarily considers only those errors assigned and discussed in the briefs, the appellate court may, at its option, notice plain error. Connelly v. City of Omaha, 284 Neb. 131, 816 N.W.2d 742 (2012). Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. Id.
ANALYSIS
Gill's brief alludes to numerous errors in addition to those listed in her assignments of error. However, in the absence of plain error, those errors which are not specifically assigned or argued will not be addressed by this court.
Dismissal of Count Two.
Gill alleges the district court erred in sustaining VHI and Papillion Manor's motion to dismiss count two: wrongful discharge in violation of Nebraska public policy against terminating an employee for complying with reporting regulations under the "Nurse Practice Act and the Uniform Licensing Law."
An appellate court reviews de novo a lower court's dismissal of a complaint for failure to state a claim. Britton v. City of Crawford, supra. When analyzing a lower court's dismissal of a complaint for failure to state a claim, an appellate court accepts the complaint's factual allegations as true and construes them in the light most favorable to the plaintiff. Id.
VHI and Papillion Manor argued that the Nebraska courts have never recognized the public policy exception Gill alleges. As an at-will employee, there is a public policy exception where an employee can claim damages for wrongful discharge when the motivation for the firing contravenes public policy; however, this is limited to cases when a clear mandate of public policy has been violated, and it should be limited to manageable and clear standards. Trosper v. Bag 'N Save, 273 Neb. 855, 734 N.W.2d 704 (2007).
In determining whether a clear mandate of public policy is violated, courts should inquire whether the employer's conduct contravenes the letter or purpose of a constitutional, statutory, or regulatory provision or scheme. Id. When the statutory scheme relied upon contains neither criminal penalties nor a specific provision restricting the employer's common-law right to discharge an at-will employee, a clear mandate of Nebraska public policy does not exist. Buzek v. Pawnee County, 207 F. Supp. 2d 961 (2002), citing Malone v. American Business Information, 262 Neb. 733, 634 N.W.2d 788 (2001). Whether a recognized Nebraska public policy for purposes of a wrongful discharge claim has been alleged is a matter of law to be determined by the trial court. Buzek v. Pawnee County, supra.
In Wendeln v. Beatrice Manor, Inc., 271 Neb. 373, 712 N.W.2d 226 (2006), the Nebraska Supreme Court concluded a public policy exception to the employment at-will doctrine applies to allow a cause of action for retaliatory discharge when an employee is fired for making a report of abuse as mandated by the Adult Protective Services Act. Gill's complaint is alleged under the reporting requirements under the "Nurse Practice Act," but if we were to apply the policy exception created in Wendeln, it would apply only to a report of abuse. In this case, Gill was not reporting patient abuse; she was reporting the misuse of a doctor's signature stamp, in an effort to protect her own nursing license.
The district court considered VHI and Papillion Manor's motion and concluded that count two of Gill's complaint did not give rise to a clear mandate of public policy warranting an exception to the at-will employee doctrine and dismissed the wrongful discharge claim. Our de novo review does not reveal any applicable public policy exceptions, and the dismissal of count two is affirmed.
Pretrial Motions.
The Nebraska rules of evidence state that error may not be predicated upon a ruling which admits evidence unless a substantial right of the party is affected and a timely objection, stating the specific ground of objection, was made. State v. Glantz, 251 Neb. 947, 560 N.W.2d 783 (1997).
Gill assigns that the judge "erred in Pretrial Motion Rulings T 6-20 line 1-9," specifically Gill's motion to exclude her resume from evidence. At the pretrial hearing, the judge asked for, and received, an explanation of the relevance and overruled Gill's motion. When the resume was offered as an exhibit during trial, Gill did not object; therefore, the issue is not preserved for appeal.
Whistleblower Standard.
Gill assigns that the court erred in "recognizing legal standard in Whistleblowing cases," but does not argue this error. It may be a challenge to the sufficiency of the district court's jury instructions on the whistleblower claim. If that is the case, Gill's counsel did not object to the district court's jury instructions, and many of the instructions used were Gill's proposed instructions. Failure to object to instructions during the conference prohibits counsel from objecting at a later time. Robinson v. Dustrol, Inc., 281 Neb. 45, 793 N.W.2d 338 (2011).
CONCLUSION
We find the district court did not err in dismissing count two of Gill's complaint or in ruling on the parties' pretrial motions. Further, we find no plain error. The decisions of the district court and the findings of the jury are affirmed.
AFFIRMED.