ASBERRY v. AMERICAN HEALTH PARTNERS LLC (2023)

ORDER

Before the Court is Defendants’ Partial Motion to Dismiss. (Doc. #3.) For the reasons stated below, the motion is DENIED.

I. FACTUAL BACKGROUND 1

Defendants American Health Companies, LLC d/b/a American Health Partners ² and TruHealth, LLC f/k/a TruHealth, Inc. (collectively, “Defendants”) hired Plaintiff Deborah Asberry (“Plaintiff”) as a Nurse Practitioner. Plaintiff worked solely in long-term care facilities throughout Jackson County, Missouri. During her employment with Defendants, Plaintiff reported various concerns with the Department of Health and Senior Services. After Plaintiff made her reports, Plaintiff's supervisor responded with “false performance criticisms” and “began preparing to terminate Plaintiff's employment for false alleged reasons.” (Doc. #1-1, pp. 14, 6.) Further, Defendants removed Plaintiff from her assignments at the facility where she made reports on patient abuse and neglect. Defendants’ conduct caused Plaintiff “unusual and extraordinary” emotional distress, which she reported to Human Resources on two occasions. (Doc. #1-1, p. 13.) Defendants terminated Plaintiff on February 28, 2020, approximately six weeks after removing Plaintiff from her assignments where she made the complaints.

On September 11, 2023, Plaintiff filed a three-count complaint in the Circuit Court of Jackson County, Missouri, asserting claims of retaliatory discharge under the Missouri Whistleblower Protection Act (“WPA”), the Omnibus Nursing Home Act, and the Missouri Workers’ Compensation Law. On November 3, 2023, Defendants filed a Notice of Removal. Defendants now seek to dismiss Plaintiff's claims under the Missouri Workers’ Compensation Law and the Omnibus Nursing Home Act for failure to state a claim upon which relief can be granted.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a claim for “failure to state a claim upon which relief can be granted.” “To survive a motion to dismiss [for failure to state a claim], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quotation marks omitted) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ash v. Anderson Merchs., LLC, 799 F.3d 957, 960 (8th Cir. 2015) (internal citation and quotation marks omitted) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). The Court must accept all facts alleged in the complaint as true when deciding a motion to dismiss. See Data Mfg., Inc. v. United Parcel Serv., Inc., 557 F.3d 849, 851 (8th Cir. 2009) (noting “[t]he factual allegations of a complaint are assumed true and construed in favor of the plaintiff, even if it strikes a savvy judge that actual proof of those facts is improbable”).

III. DISCUSSION

A. Count II - Plaintiff's Claim under the Omnibus Nursing Home Act

Under Count II of her Complaint, Plaintiff alleges that she “engaged in protected activity under section RSMo. § 198.070 because she made a report of suspected abuse or neglect of patients at Highland Rehabilitation to the Department of Health and Senior Services.” (Doc. #1-1, p. 11.) Defendants argue this claim must be dismissed because it is preempted by the WPA. Plaintiff disagrees and argues “the WPA itself expressly bars Plaintiff from bring[ing] her claim under the WPA.” (Doc. #13, p. 8.)

The WPA provides that it and the Missouri Workers Compensation Act “shall provide the exclusive remedy for any and all claims of unlawful employment practices.” Mo. Rev. Stat. § 285.575.3. The statute goes on to provide an exception that “if a private right of action for damages exists under another statutory or regulatory scheme, whether under state or federal law, no private right of action shall exist under [the WPA].” Mo. Rev. Stat. § 285.575.5. As relevant here, the Missouri Supreme Court has found that a “private right of action [exists] in tort for employees of private nursing homes who are retaliated against for reporting violations of the [Omnibus Nursing Home Act.]” Bachtel v. Miller Cnty. Nursing Home Dist., 110 S.W.3d 799, 803 (Mo. 2003). Therefore, Plaintiff cannot rely on both the WPA and the Omnibus Nursing Home Act to remedy the same wrong.

Here, relying on the statutory scheme laid out above, Plaintiff admits that she is “bar[red] from sustaining a cause of action under the WPA relating to her report to the [Department of Health and Senior Services] and Defendants’ subsequent retaliatory actions.” (Doc. #13, p. 10.) However, Plaintiff asserts that the alleged conduct relevant to the WPA claim is different than the alleged conduct relevant to the Omnibus Nursing Home Act claim, and therefore, she is entitled to assert both claims. See Collins v. Gershman Inv. Corp., No. 4:20-CV-00404-AGF, 2021 WL 2816360, at *3 (E.D. Mo. July 6, 2021) (allowing plaintiff to proceed with both her WPA and False Claims Act claims because plaintiff alleged different conduct was relevant to each claim). The Court agrees with the reasoning in Collins as Plaintiff has alleged that some of the “offenses have nothing to do with reporting abuse and neglect to the [Department of Health and Senior Services].” (Doc. #13, p. 8, n.5.) Ultimately, the Court finds at this stage of the proceedings that Plaintiff's claim under the Omnibus Nursing Home Act is not preempted and should be allowed to proceed.

B. Count III - Workers’ Compensation Retaliation Under Mo. Rev. Stat. § 287.780

Under Count III of her Complaint, Plaintiff alleges she “engaged in protected activity under Missouri Worker's Compensation Law[,] ․ including but not limited to ․ notifying Defendants of her work-related injuries incurred during her employment with Defendants and/or otherwise seeking protection or benefits under such laws.” (Doc. #1-1, p. 12.) Defendants argue this Count should be dismissed because Plaintiff “provides no facts that can establish an attempt to exercise her rights under the Workers’ Compensation Law.” (Doc. #4, p. 6.) In response, Plaintiff argues that she “pleaded on separate occasions [that] she gave notice to Defendants that their retaliatory conduct was causing her mental injuries.” (Doc. #13, p. 4.)

To state a claim for [W]orkers’ [C]ompensation [R]etaliation, Plaintiff must plead facts showing, or at least supporting a reasonable inference, that: (1) Plaintiff was employed by Defendant[s]; (2) Plaintiff exercised a right under the Missouri Workers’ Compensation Law; (3) Defendant[s] discriminated against or discharged [her]; and (4) Plaintiff's exercise of rights under the statute was a motivating factor in [her] termination.

Morris v. Westrock Servs. LLC, No. 4:21-CV-00928-DGK, 2022 WL 2276356, at *3 (W.D. Mo. June 23, 2022) (citing Mo. Rev. Stat. § 287.780). A motivating factor is one that “actually played a role in the discharge” and had a “determinative influence on the discharge or discrimination.” Mo. Rev. Stat. § 287.780.

Taking the facts contained in the Complaint as true, the Court finds that Plaintiff has sufficiently alleged facts to support a Workers’ Compensation Retaliation claim. First, Defendants do not appear to dispute elements one and three—that Plaintiff was employed by Defendants and that Defendants discharged her. As for element two, Missouri courts have found there are numerous ways for an employee to assert his or her rights under Chapter 287, including “providing notice of ․ an injury to employer.” Demi v. Sheehan Pipeline Constr., 452 S.W.3d 211, 216 (Mo. Ct. App. 2014); see also Reed v. Sale Memorial Hosp. and Clinic, 698 S.W.2d 931, 936 (Mo. Ct. App. 1985) (finding that a formal claim for compensation was not necessary to invoke one's rights under Section 287.780). Here, for example, Plaintiff has alleged that “[o]n or about January 17, 2020, Plaintiff reported to HR the retaliatory reassignments as well as reporting the extraordinary emotional distress Defendants’ retaliatory actions were causing her.” (Doc. #1-1, p. 13.)

Further, the Court disagrees with Defendants’ argument that Plaintiff's reports to HR that she was emotionally upset because of the retaliation against her cannot qualify as a “compensable work-related injury.” (Doc. #4, p. 6.) While Defendants are correct that Mo. Rev. Stat. § 287.120.9 provides that “a mental injury is not considered to arise out of and in the course of employment if it resulted from any disciplinary action, work evaluation, job transfer, layoff, demotion, termination or any similar action,” it also clarifies that the limitation applies only to any action “taken in good faith by the employer.” Mo. Rev. Stat. § 287.120.9. Here, Plaintiff has pled sufficient facts to show that Defendants’ actions were not taken in good faith and indeed, her “unusual and extraordinary” mental distress arose from the “hostile and harassing work environment [created] by Defendants.” (Doc. #1-1, p. 12); see Mo. Rev. Stat. § 287.120.8. Plaintiff's allegations are sufficient at this stage of proceedings.

Finally, as for the fourth element, Plaintiff alleged in her Complaint that the “exercise of [her] rights ․ was a contributing, motivating, and/or but for factor” in the conditions of her employment including, for example, a “harassing and discriminatory work environment, ․ false performance criticisms, and her retaliatory termination[.]” (Doc. #1-1, pp. 13–14.) Therefore, accepting the pleaded facts as true, the Court finds Plaintiff has sufficiently pleaded each element of a Workers’ Compensation Retaliation claim.

IV. CONCLUSION

For the reasons stated above, Defendants’ Partial Motion to Dismiss (Doc. #3) is DENIED.

IT IS SO ORDERED.

FOOTNOTES

2.   Defendants provide that the Petition improperly identifies American Health Companies, LLC, d/b/a American Health Partners as “American Health Partners, LLC.” For this Order, the Court will use American Health Companies, LLC d/b/a American Health Partners.

STEPHEN R. BOUGH, UNITED STATES DISTRICT JUDGE