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Gierer v. Rehab Medical, Inc.

United States District Court, E.D. Missouri, Eastern Division

March 14, 2017

JENNIFER GIERER, Plaintiff,
v.
REHAB MEDICAL, INC., Defendant.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW UNITED STATES DISTRICT JUDGE

         This matter is before the Court on defendant Rehab Medical, Inc.'s (“Rehab Medical”) motion for summary judgment. Plaintiff Jennifer Gierer (“plaintiff”) opposes the motion. The matter is fully briefed and ready for decision. For the following reasons, the Court will grant defendant's motion as to plaintiff's claim of retaliation under the False Claims Act (Count I). The Court will decline to exercise supplemental jurisdiction over plaintiff's remaining state law claims for unpaid commissions due under Missouri Revised Statute § 407.913 (Count II), unjust enrichment (Count III), and wrongful termination in violation of public policy (Count IV), and will dismiss these claims without prejudice.

         I. Background

         Plaintiff, a former sales representative for Rehab Medical, filed this action against her former employer alleging retaliation for engaging in unlawful acts under the False Claims Act, 31 U.S.C. § 3730(h) (“FCA”). She brings her action in four counts: retaliation under the FCA (Count I); unpaid commissions due under Missouri Revised Statutes § 407.913 (Count II); unjust enrichment (Count III); and wrongful termination in violation of public policy (Count IV).[1]Defendant Rehab Medical is a supplier of various electric-motorized wheelchairs. Plaintiff alleges she was subject to retaliation after expressing concern regarding Rehab Medical's alleged falsification of documents to the Medicare federal health insurance program.

         II. Summary Judgment Standard

         The Eighth Circuit has articulated the appropriate standard for consideration of motions for summary judgment as follows:

Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. The movant bears the initial responsibility of informing the district court of the basis for its motion, and must identify those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. The nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.

Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc) (internal citations and quotation marks omitted).

         With this standard in mind, the Court accepts the following facts as true for purposes of resolving the motion for summary judgment.

         III. Facts [2]

         Rehab Medical is a provider of medical mobility equipment, including complex wheelchairs. A large percentage of equipment sold by Rehab Medical is authorized and paid for by Medicare. Rehab Medical's sales representatives help customers determine their equipment needs depending upon their level of physical mobility.

         Once a sales representative receives all the necessary documentation for a customer, the documentation is sent to Rehab Medical's internal review team, which audits the documentation to ensure all documents have been submitted and that the documents are not deficient in any way. If the documentation is not complete, the file is sent back to the sales representative to cure any errors or deficiencies by obtaining the necessary information from the medical personnel involved in the mobility evaluation. After internal review of the file, the equipment is delivered to the customer and then billed through the applicable insurance. At times, the internal review team will deny a claim for lack of information or documentation errors. The file is then sent back to the sales representative to cure the additional deficiencies, if possible.

         Rehab Medical hired plaintiff as a sales representative on October 14, 2013. She was terminated July 7, 2014. She worked in the St. Louis office. During her employment, plaintiff directly reported to Jenna Domeck, the Regional Manager responsible for training and managing the sales staff at Rehab Medical's offices in Kentucky, Missouri, Indiana, and Ohio. Ms. Domeck was supervised by Keith Hawkins, Director of Sales.

         A. Plaintiff's Job Performance

         As a condition of her employment, plaintiff was required to meet a monthly sales quota. Plaintiff, like all other sales representatives, started with a low quota at hire, and the quota gradually increased. The gradual increase was designed to allow sales representatives a period of time to acclimate to the sales process and their new job. Under the quota system, each piece of equipment has a point value; the more expensive and complex products have a higher point value than less expensive products. For example, a complex chair has a higher point value than a chair cushion. Each sales representative is provided a numerical monthly quota. A sales representative earns her quota points when the equipment is delivered to the customer; a sales representative earns her commission, however, when Rehab Medical receives payment for the equipment.

         In November 2013, plaintiff's second month of employment, her quota was one point. Plaintiff earned 2.78 points. According to defendant, only .53 of the points were earned by plaintiff. The remainder of the points was transferred to plaintiff to finalize work done by a departed employee and Ms. Domeck. See Hawkins Aff. ¶ 42; Def. Ex. 13.

         In December 2013, plaintiff's quota was two points. Plaintiff earned 1.93 points. She was ranked 43 of 45 sales representatives employed by Rehab Medical that month based on sales and quota points.[3] See Def. SOF ¶ 60; Def. Ex. 13; Hawkins Aff. ¶ 42.

         In January 2014, plaintiff's quota was 4 points, and she earned 0.5 points. Plaintiff was ranked 43 of 46 sales representatives employed by Rehab Medical that month. See Def. SOF ¶ 62, Ex. 13.

         In February 2014, plaintiff's quota was 6 points, and she earned 2.4 points. She was ranked 37 of 43 sales representatives employed by Rehab Medical that month. See Def. SOF ¶ 63; Ex. 13.[4]

         In March 2014, plaintiff's quota was increased to the standard rate of 8 points, and she earned 1.25 point. She was ranked 43 of 43 sales representatives employed by Rehab Medical that month. See Def. SOF ¶ 64; Def. Ex. 13; Hawkins Aff. ¶ 44.

         On April 2, 2014, Keith Hawkins, the Director of Sales, sent plaintiff an e-mail, stating “You've sold 8 products total this year . . . It's time to step up. As easy as some other products are to get approved, I expect April to be a much better month. We all need you to utilize all products that we have available and improve tremendously.” Def. Ex. 14. Plaintiff responded, “No problem and I'm equally if not more frustrated that my [quota points] have not been getting what they need faster!” Id.

         In April 2014, plaintiff's quota was 8 points, and she earned 7.6 points. This was plaintiff's best sales performance month during her employment. She was ranked 20 out of 44 sales representatives at Rehab Medical. See Def. SOF ¶ 65; Def. Ex. 13; Hawkins Aff. ¶ 45.

         In May 2014, plaintiff's quota was 8 points, and she earned 3.1 points. She was ranked 45 out of 48 sales representatives at Rehab Medical that month. See Def. SOF ¶ 66; Def. Ex. 13; Hawkins Aff. ¶ 45.

         As a result of plaintiff's failure to meet her quota for six of the seven months she had been employed by Rehab Medical, especially considering how far below the quota she fell many of the months of her employment, Keith Hawkins stated that he believed she should be terminated. See Hawkins Aff. ¶ 51. Instead, though, on June 5, 2014, he placed plaintiff on a performance improvement plan (“PIP”). Plaintiff was notified and acknowledged receipt and obligation to comply with the PIP. The PIP provided that plaintiff was required to meet at least 70 percent of her total monthly quota for the months of June, July, and August 2014. Id.; see also Def. Ex. 15. The PIP stated, in relevant part:

Jen, it has been determined that your performance is below the company standard and expectation. Your performance needs to improve over the next 90 days with respect to your sales. Specifically for the months of June, July and August 2014, you must achieve 70% to quota. You must have a minimum of 16.5 points by the end of August. However, if in any single month your points are below 4, the company reserves the right to terminate your employment at the conclusion of that month.
The company wants to support your success. It will be incumbent upon you to communicate any obstacle(s) preventing you from achieving the sales goals stated above. The company encourages you to maintain an open dialogue with your Regional Manager [Jenna Domeck] and Director of Sales [Keith Hawkins].
Failure to obtain the sales goals stated herein could result in further disciplinary action up to and including termination of employment.

         Def. Ex. 15 (emphasis added).

         In June 2014, plaintiff earned 3 points. She was ranked 40 out of 43 sales representatives employed by Rehab Medical that month. Mr. Hawkins testified that based on plaintiff's well-established history of poor sales performance and her inability to meet the PIP's reduced quota of four points, he made the decision to terminate her effective July 7, 2014. (Hawkins Aff. ¶ 53.) Plaintiff, however, states that she did not meet her quota in June 2014 because Rehab Medical ran out of inventory, and she could not timely deliver the items she sold. (Pl. Dep. at 180.) She also alleges her termination was in retaliation for engaging in activity protected under the FCA.

         B. Plaintiff's Protected Conduct

         Plaintiff alleges many instances in which she engaged in protected conduct under the FCA. The Court will discuss the alleged protected conduct, in roughly chronological order. (1) Refusing to Insert ICD-9 Codes Plaintiff testified that at some point during her first month of employment with Rehab Medical in October 2013, Ms. Domeck directed her to fill in certain medical codes, ICD-9 codes, on mobility evaluation related forms. (Pl. Dep. 312-13.) Plaintiff refused because she believed only medical professionals were allowed to fill in these codes along with the medical information. Plaintiff did not fill in the ICD-9 codes during her employment. She testified:

Q. So the ICD-9 codes that [Ms. Domeck] told you just to go ahead and fill in what the doctor tells you, you didn't call anyone in the company to complain about that conduct?
A. No, I just didn't do it, and nobody ever ...

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