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Owens v. National Medical Care

September 28, 2004

RODNEY OWENS, PLAINTIFF,
v.
NATIONAL MEDICAL CARE, INC. D/B/A FRESENIUS MEDICAL CARE NORTH AMERICA AND BIOMEDICAL APPLICATIONS OF NORTHEAST D.C., INC., DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

Plaintiff, Rodney Owens, brings this action alleging that he was discharged from his employment as a dialysis machine repair technician in violation of public policy after he "objected and refused to participate in the falsification of maintenance records." First Amended Complaint ("Compl.") ¶ 1. Currently before this Court are the Defendants' Motion for Summary Judgment ("Defs.' Mot.") and their Memorandum of Law in Support of Their Motion for Summary Judgment ("Defs.' Mem."), the Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment ("Pl.'s Opp'n"), and the Defendants' Reply to Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment ("Defs.' Reply"). For the following reasons the defendants' motion is denied.

I. Background

The following facts are derived from the defendants' Separate Statement of Undisputed Material Facts in Support of Defendants' Motion for Summary Judgment (Defs.' Stmt.).*fn1 The defendants, National Medical Care, Inc., Fresenius Medical Care North America, and Biomedical Application of Northeast D.C., Inc., maintain and operate dialysis facilities "in and around the District of Columbia." Defs.' Stmt. ¶ 1. In February 1996, the plaintiff commenced his employment as an Equipment Technician with the defendants at a dialysis facility in Camp Springs, Maryland. Id. ¶ 2. In this role, the plaintiff was responsible for, inter alia, repairing dialysis equipment. Id. ¶ 5. This included, identifying problems with the dialysis machines, performing the necessary repairs, and certifying that the dialysis machines were ready for patient use. Id. In the Summer of 2000, the plaintiff transferred to a dialysis facility in Northeast, Washington, D.C. ("Northeast facility"). Id. ¶ 3.

On November 14, 2001, the plaintiff returned to work following a three month leave of absence. Id. ¶ 15. Upon his return, the plaintiff was asked by his direct supervisor, Eugene Howard, Chief Technician for the Northeast facility, to repair dialysis machine numbered "24" ("machine # 24"). Id. ¶ 16. Sometime between November 14, 2001 and December 5, 2001, patients received treatment on machine # 24 after it was put back into service. On December 5, 2001, Robert Ward, Area Administrator, received notice that five patients who had received dialysis treatment at the Northeast facility had been sent to the hospital with elevated electrolyte levels after becoming ill. Id. ¶ 17. Following an investigation, Ward determined that each of the patients had received treatment on machine # 24. Id. ¶ 18. Ward removed machined # 24 from service and instructed Joseph Brawner, Regional Technical Manager, to investigate and inspect machine # 24 to determine why patients had become ill after receiving treatment on the machine. Id. ¶¶ 19, 20, 21. During the investigation, Brawner discovered that the "conductivity readings" for the machine were out of range. Id. ¶ 22. Upon further inspection, Brawner discovered that the acid and bicarbonate fluid inlet lines within the machine were crossed and improperly connected. Id. ¶ 23. Once the inlet lines were properly connected, machine # 24's conductivity*fn2 range registered in the normal range. Id. ¶ 24. On December 6, 2001, Brawner issued a written report of his findings. Id. ¶ 28; Exhibits to Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment (" Pl.'s Ex.") 15 at 1-2. In the report, Brawner wrote: [a]fter completing my machine investigation[,] I asked the Equipment Technician (Rodney Owens) what repairs did he perform on the machine in question prior to placing it in service [and] he stated the following[:]

"Joe, I replaced the actuator board and the function board but that was not the problem so I put the original boards back and just replaced the actuator board ribbon cable that fixed the problem. I then calibrated the temperature and conductivity."

I then asked him (Rodney) what was the original machine problem; he stated the following[:]

"I don't know[,] Eugene told me to fix the machine it has a conductivity problem."

Pl.'s Ex. 15 at 2. This report was forwarded to Ward and the Regional Manager, Jennifer Nazarko. Defs.' Stmt. ¶ 30. On December 7, 2001, the plaintiff's employment with the defendants was terminated. Id. ¶ 37; Pls.' Opp'n at 15. Based upon the parties pleadings, the facts set forth above are the only material facts not in dispute.

According to the defendants, Ward and Nazarko met to discuss Brawer's report. Id. ¶¶ 32, 34. At this meeting, Ward and Nazarko decided that the plaintiff should be discharged because he had improperly repaired machine # 24 and could have endangered patient safety. Id. ¶ 33. The defendants assert that no one else participated in the discussions to terminate the plaintiff and that the decision was based solely on the contents of Brawer's report. Id. ¶¶ 34, 36. However, the plaintiff contends that not only were Ward and Nazarko present for the discussion which led to his termination, but also in attendance were Dr. Javed Rahmat, the Medical Director, Helen Grace Tagunicar, the Director of Nursing, and possibly Howard, the plaintiff's direct supervisor. Pl.'s Opp'n at 14.

The plaintiff suggests that his termination was not based on his alleged improper repair of machine # 24, but rather his refusal to falsify dialysis machine records. Pl.'s Opp'n at 1. Thus, the plaintiff alleges that the defendants' assertion that he was terminated because he improperly repaired machine # 24 was a pretext for the true reason for his termination -- refusal to falsify the records of machine # 24. Id.

According to the plaintiff, he began repairing machine # 24 by reassembling the machine to determine why it was not working properly. Id. at 6-7. While waiting for the machine to warm-up, the plaintiff reviewed machine # 24's logbook, which lists all of the work that has been performed on that machine. For each entry in the logbook, the technician who is working on the machine is required to write down the number of hours listed on the hours meter, i.e., the number of hours a dialysis machine has been used, and the work that had been performed on the machine previously. Id. at 7. While reviewing the logbook, the plaintiff stated that he found a discrepancy between the number of hours on the machine's internal hours meter and the number of hours listed in the logbook. Id. According to the plaintiff, the logbook indicated that machine # 24 had operated for over 6,000 hours, while the machine's internal meter showed only 1,800 hours of operation. Id. Because the plaintiff's supervisor (Howard), was not at the facility at the time he discovered the discrepancy, the plaintiff states that he stopped working on the machine and placed a "do not use" sign on it. Id. When the plaintiff finally spoke to Howard about the problem, Howard allegedly told him to just "forge the hours as [he] went along" so that the entries in the maintenance record would correspond with the prior entries. Id. at 8. The plaintiff states that he informed Howard that he would not forge the hours in the logbook and thus would not continue to repair the machine. Id. The plaintiff alleges that Howard subsequently forged the logbook to reflect that the repairs had been completed. Id. at 9.

Later, following the report that patients who had been dialyzed on machine # 24 became ill, the plaintiff asserts that he informed his second-line supervisor and Howard's direct supervisor, Helen Grace Tagunicar, about Howard's request that the plaintiff forge the hours in the logbook for machine # 24. Id. at 8. Thus, the plaintiff contends that he was fired not for the alleged improper repairs that caused the patients' illnesses, but for (1) refusing to forge the logbook and (2) reporting to Tagunicar the falsifying of the logbook. Id. at 1. This, according to the plaintiff, is a protected activity that merits the filing of his wrongful discharge claim. The plaintiff asserts that the basis for the claim is supported by overwhelming evidence. Specifically, evidence that Tagunicar was aware of the plaintiff's refusal to forge the logbook; that Tagunicar participated in the discussions to terminate the plaintiffs; that the plaintiff's termination came within days of reporting his refusal to falsify the logbooks; and that Howard, who actually repaired machine # 24, was not terminated. Pl.'s Opp'n at 23.

Based on this evidence, the plaintiff filed this lawsuit in the District of Columbia Superior Court alleging wrongful discharge in violation of public policy. The defendants' removed the case to this Court pursuant to 28 U.S.C. ยง 1441(b), which vests jurisdiction in this Court because the plaintiff is a District of Columbia resident, the defendants are all incorporated and have their principle place of business in other jurisdictions, and the plaintiff seeks more than $75,000 in damages. ...


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