United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW UNITED STATES DISTRICT JUDGE
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.
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).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.
Summary Judgment Standard
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
this standard in mind, the Court accepts the following facts
as true for purposes of resolving the motion for summary
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.
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.
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
Plaintiff's Job Performance
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
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.
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. See Def. SOF ¶ 60; Def.
Ex. 13; Hawkins Aff. ¶ 42.
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.
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.
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.
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
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.
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.
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
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
Failure to obtain the sales goals stated herein could result
in further disciplinary action up to and including
termination of employment.
Ex. 15 (emphasis added).
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
Plaintiff's Protected Conduct
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
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 ...