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McCree v. Echo Community Health Care, Inc.

United States District Court, S.D. Indiana, Evansville Division

April 13, 2015



RICHARD L. YOUNG, Chief District Judge.

Plaintiff, Courtney McCree, is a former employee of the defendant, ECHO Community Health Care, Inc. ("Echo"). Following her termination, Plaintiff filed a Complaint alleging three causes of action: (1) interference with her rights under the Family Medical Leave Act ("FMLA"); (2) retaliation for the exercise of her rights under the FMLA; and (3) wrongful discharge under Indiana law. Echo now moves for summary judgment. For the reasons set forth below, the court GRANTS Echo's motion.

I. Summary Judgment Standard

The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate if the record "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

On a motion for summary judgment, the burden rests with the moving party to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the non-movant to "go beyond the pleadings" and point to evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23. "If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question, then the court must enter summary judgment against her." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citing Matsushita Elec. Indus. Co., 475 U.S. at 585-87); Celotex, 477 U.S. at 322-24; Anderson, 477 U.S. at 249-52.

II. Factual Background

A. Plaintiff's Employment with Echo

Echo is a federally-qualified community health care facility which provides medical care services to a medically-underinsured population in a medically-underserved area. (Deposition of Carol Collier-Smith ("Collier-Smith Dep.") at 56, 85-87, 90). Echo has three locations in Evansville. (Id. at 16).

On March 20, 2012, Echo hired Plaintiff as a part-time family nurse practitioner. (Deposition of Courtney McCree ("Plaintiff Dep.") at 21; Courtney McCree's Responses to Request for Production of Documents ("McCree") 000001). She became a full time employee on May 7, 2012, and was assigned to Echo's John Street location. (Plaintiff Dep. at 21; McCree 000001; Collier-Smith Dep. at 17). A family nurse practitioner provides primary health care services to patients which include assessing patient physiological status, performing diagnostic and preventive procedures and prescribing medications to patients. (McCree 000006-000007).

During Plaintiff's term of employment, Amanda Higgs was the Site Manager and, in November 2012, Higgs was replaced by Latricia McCutchan (a/k/a "Puddy"). (Deposition of Latricia McCutchen ("Puddy Dep.") at 12; Plaintiff Dep. at 25-26). The Site Manager was considered the supervisor of employees at the John Street location and was in charge of all day-to-day operations, scheduling, staffing, operational questions and similar issues. (Collier-Smith Dep. at 18-19). An employee first reported work-related issues to the Site Manager and, if the issue remained unresolved, the employee brought those issues to Chief Operating Officer Carol Collier-Smith. (Id. ).

Plaintiff's offer of employment advised Plaintiff that the minimum productivity expectations set by the federal government for a mid-level provider such as herself was 175 patients per month. (McCree 000001). Plaintiff also received a copy of a job description for her position. One of the requirements of her position was to communicate effectively and professionally with staff, clients, nurses, peers, supervisors and other collaborative community agencies. (McCree 000006-000007). Plaintiff's job description also required her to timely lock (or input) notes of patient encounters in the electronic medical record ("EMR") system within 72 hours. (Plaintiff Dep. at 23; McCree 000006-000007).

For the first few months of Plaintiff's employment with Echo, Plaintiff worked with several nurses. (Plaintiff Dep. at 27). However, in August 2012, Echo assigned Amber Garrett, RN, as Plaintiff's nurse. (Id. ). Garrett worked with Plaintiff until June of 2013, when Garrett took maternity leave under the FMLA. (Id. at 37). While Garrett was on FMLA leave, Plaintiff was assigned other nurses. From time to time, Plaintiff requested assignment of an additional nurse to assist her. (Id. at 129, 130, 132, 133; Defendant Echo Community Health Care, Inc.'s Responses to Request for Production of Documents at 122-124). Echo refused to provide her another nurse because her patient volume did not warrant another nurse. (Plaintiff Dep. at 129, 130, 132, 133; Echo 122-124). Plaintiff had only one nurse to assist her on any given day during the entire term of her employment. (Collier-Smith Dep. at 64).

B. Communication Issue with Nurse Dabe

On June 27, 2012, not long after Plaintiff was hired, Plaintiff was assigned Echo nurse, Diane Dabe, LPN, to assist her. (Plaintiff Dep. at 69-71). Plaintiff disputes whether her communications with Dabe were negative; however, she admits Dabe told her, "I can't work like this" and left. (Id. at 71). It was reported to Collier-Smith that Dabe felt as though Plaintiff humiliated and embarrassed her in front of her peers and patients and that she left work that day in tears. (Collier-Smith Dep. at 78). Collier-Smith testified the issue was concerning to her because Dabe "had such a stellar reputation and employment history with [Echo]", and Echo never had an issue with her. (Id. at 82).

On June 29, 2012, Higgs met with Plaintiff to discuss what occurred with Dabe. (Plaintiff Dep. at 117-118; Echo 00403). Higgs advised Plaintiff that staff complained she had an abrasive tone and found her unapproachable at times. (Echo 00403). Plaintiff stated she did not appreciate the conversation and she walked out of Higgs' office. (Id. ). A few days later, Plaintiff met with Collier-Smith because she did not like the way Higgs spoke to her during their June 29 meeting. (Collier-Smith Dep. 95). Plaintiff also expressed concern over the manner in which the nurses treated her. (Id. at 82). Collier-Smith informed Plaintiff that she expected the nurses to treat her with respect, and she expected Plaintiff to treat the nurses and other Echo staff with respect. (Id. ).

C. Billing Code Issue at the Surgery Center

On June 21, 2012, Plaintiff sent an e-mail to Carla Acker and Julie Adams, both of whom worked in the billing department, questioning how she should enter billing codes and chart assessments when working at the Surgery Clinic. (Plaintiff Dep. at 216, 217; Echo 002092-002094, 00345). The Surgery Clinic was a specialty clinic offered at John Street where surgeons from Evansville Surgical Associates volunteered to come once a month and see Echo's uninsured patients. (Collier-Smith Dep. at 54; Plaintiff Dep. at 217). During those Surgery Clinic days, Plaintiff would work with the volunteer surgeon, follow him around, document everything that he did in the office, and enter the information into the EMR system. (Collier-Smith Dep. at 54; Plaintiff Dep. at 217). Plaintiff was tasked with these documentation duties because the volunteer physicians did not have access to Echo's EMR system. (Plaintiff Dep. at 221-222). In her e-mail, Plaintiff stated she was not comfortable entering the information into the EMR system because she was not the one providing the care. (Id. at 218, 222; Echo 0002092-002094, 00345). To ensure against any misunderstanding about who provided the care, Plaintiff entered the notes in the EMR system as "per Dr. Kaiser." (Plaintiff Dep. at 218, 224; Echo 002092-002094, 00345). On June 22, 2012, Collier-Smith responded to Plaintiff's e-mail advising that no billing is actually submitted for the Surgery Clinic services and that her EMR entries are only for tracking the services provided. (Plaintiff Dep. at 222; Echo 002094).

For reasons unrelated to Plaintiff's documentation questions, Echo stopped providing the Surgery Clinic in the fall of 2012, and Plaintiff had no further involvement in any additional Surgery Clinic documentation after that date. (Collier-Smith Dep. at 54, 56). Plaintiff acknowledged in her deposition that the way she charted the Surgery Clinic encounters in the EMR system was legal, that no one told her she could not chart the way she wanted, and that she was unaware of any negative actions against her which were directly related to her Surgery Clinic question. (Plaintiff Dep. at 224 ("Q: No. I'm asking you whether it's illegal or not.... A: The way I ended up charting it in the end? Q: Right. A: No."), 225).

On July 17, 2012, Faith Deffendoll from the billing department sent Plaintiff an e-mail requesting Plaintiff to change a billing code from a CPT code to a Medicare preventative code (a "G-Code") for either an initial wellness visit or a follow-up annual visit. (Plaintiff Dep. at 226; Echo 00223). Plaintiff responded on July 18, 2012, stating she was confused. (Echo 00223; Plaintiff Dep. at 227). Deffendoll responded to Plaintiff advising her why the G-Codes could be used. (Echo 00223, 01893, 002137; Plaintiff Dep. at 227-229).

D. Three-Month Performance Review

In mid-August, Collier-Smith met with Plaintiff and presented her with the summary of her initial three (3) month performance review. (Plaintiff Dep. at 180-181; Echo 00140). Plaintiff received a minimum passing score of 200. (Id. at 178; Echo 00137; Collier-Smith Dep. at 00137). The summary page of the August 2012 performance review noted that Plaintiff had some initial problems with the way staff perceived her, but that Echo believed the problems had been resolved. (Plaintiff Dep. at 181; Echo 00140). Plaintiff acknowledged there were some initial communication problems and she agreed with the statements made in the summary page of the performance review. (Plaintiff Dep. at 181; Echo 00140).

E. Billing Issue with Medicare G-Codes

On August 31, 2012, Deffendoll sent Plaintiff an e-mail stating that certain preventative medical services provided to a patient should be billed using a Medicare G-Code. (Plaintiff Dep. at 232-233; Echo 00222, 001409). Plaintiff responded with her understanding of the requirements for billing a G-Code under Medicare guidelines, and stated that she was not comfortable using it. (Plaintiff Dep. at 232; Echo 00222).

On September 11, 2012, Echo held a medical advisory meeting where billing staff, nurse practitioners, and some of the physicians were present to discuss pediatric immunizations, and at the end of the discussions, Plaintiff brought up the topic of using Medicare G-Codes for billing. (Plaintiff Dep. at 229, 231). Plaintiff testified she verbally raised the issue of the legality of billing G-Codes, and she questioned the other medical providers about how they were doing the things necessary to bill the G-Codes. (Id. at 229-231). The persons present at the meeting discussed the issues raised by Plaintiff, and the discussion concluded with Acker advising Plaintiff that she would get her a copy of the requirements to bill G-Codes and they could discuss it later. (Id. at 242). The discussion then moved on to another topic. (Id. ).

On September 19, 2012, Deffendoll forwarded Plaintiff's August 31, 2012, e-mail to Acker for response, and Acker responded to Plaintiff on September 25, 2012, explaining the issues and requirements for billing preventative Medicare G-Codes. (Echo 00222, 001409). After some discussion, Plaintiff thanked Acker for the clarification, and Acker advised that the patient encounter should be billed as 99214 instead of a G-Code, and the patient should be brought back to complete the remaining services for Medicare's preventative G-Code exams. (Plaintiff Dep. at 232-233; Echo 00222, 001409). Acker also provided Plaintiff with a link to certain videos and agendas located on the Echo server where Plaintiff could obtain additional information and billing requirements to assist her in creating her own templates to ensure she provided all of the services to properly bill Medicare G-Codes. (Plaintiff Dep. at 235; Echo 001409).

F. Meeting with Site Manager Higgs

On September 25, 2012, Higgs met with Plaintiff to discuss several issues and concerns including Plaintiff's low productivity. (Plaintiff Dep. at 121; Echo 00383-00384). Higgs advised Plaintiff that after 6 months of employment, providers are expected to be serving at least 175 patients per month. (Plaintiff Dep. at 124; Echo 00383). Plaintiff agreed that her low productivity was a concern of hers as well. (Echo 00383; Plaintiff Dep. at 124).

G. Communication Issue with Puddy

On October 2, 2012, Plaintiff was speaking with her nurse, Amber Garrett, outside of Puddy's office (who was a triage nurse at the time) regarding Plaintiff's schedule. (Plaintiff Dep. at 76-77; Collier-Smith Dep. at 96-97; Puddy Dep. at 43). Puddy made a statement from her office in an attempt to correct the misunderstanding. (Plaintiff Dep. at 76-77; Collier-Smith Dep. at 96-97; Puddy Dep. at 43; Echo 00130). Plaintiff then stated, "Puddy, if you know what's going on, can you come out here and show us what's going on with the computer?" (Plaintiff Dep. at 77; Puddy Dep. at 43; Echo 00130). Plaintiff disputes whether her communication with Puddy was "negative"; however, Garrett later apologized to Puddy for Plaintiff's tone in the conversation. (Collier-Smith Dep. at 97; Echo 00130, 00123).

H. Meeting with Collier-Smith

On October 11, 2012, Plaintiff met with Collier-Smith at Subway, and they discussed several administrative issues raised by Plaintiff as well as Plaintiff's performance issues identified by Collier-Smith. (Plaintiff Dep. at 79-81; Collier-Smith Dep. at 98-99; Echo 00122-00124). In addition to discussing and addressing the administrative concerns raised by Plaintiff, Collier-Smith advised Plaintiff that she needed to meet the productivity standards set by the federal government. (Echo 00122-00124). Collier-Smith also raised and discussed the issue of Plaintiff's communication with her co-workers. (Plaintiff Dep. at 133; Echo 00122-00124). Collier-Smith stated that her level of concern was increasing due to the negative perception people had of Plaintiff and that it was becoming a trend. (Plaintiff Dep. at 134; Echo 00123).

Collier-Smith asked if Plaintiff had anything else to discuss and she attempted to schedule a date for another meeting. (Plaintiff Dep. at 81, 135; Echo 00123). Plaintiff became upset and tearfully left the restaurant. (Plaintiff Dep. at 81, 135; Echo 00123). Collier-Smith followed Plaintiff to her car stating that the way the meeting ended was very disappointing. (Echo 00123). Plaintiff called Collier-Smith later that night and apologized. (Plaintiff Dep. at 135; Echo 00123). During the telephone conversation, Collier-Smith advised Plaintiff that "[her] biggest and growing concern is about Plaintiff's communication and emotions...." (Echo 00123-00124). The following day, October 12, 2012, Collier-Smith ...

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