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Atkins v. Greene County Hospital Board

United States District Court, N.D. Alabama, Western Division

December 14, 2017

MARILYN ATKINS, Plaintiff,
v.
GREENE COUNTY HOSPITAL BOARD, and ELMORE PATTERSON, Defendants. v.

          MEMORANDUM OF OPINION

          L. Scott Coogler, United States Distant Judge.

         Before the Court is Defendants' Greene County Hospital Board (“GCHB”) and Elmore Patterson's (“Mr. Patterson”) (collectively, “Defendants”), Rule 56 motion for summary judgment as to all claims asserted in Plaintiff's Complaint. (Doc. 51.) The motion has been fully briefed and is now ripe for decision. Upon consideration of the motions, briefs, and evidentiary submissions, Defendants' motion is due to be GRANTED.

         I. Background[1]

         Greene County Hospital Board operates a hospital, physician clinic, and residential care facility in Eutaw, AL. Elmore Patterson is the Chief Executive Officer of GCHB. Marilyn Atkins (“Plaintiff” or “Atkins”) began working as a GCHB registration clerk in early July 2011. When she began her employment, Atkins was provided with an Employee Handbook which notified employees that unauthorized absence from work is grounds for disciplinary action, up to and including termination. (Doc. 53-1 at 134.) In December 2013, GCHB implemented an attendance and disciplinary action policy providing that a “No-call, No-show equals termination.” (Doc. 53-2 at 5-6.) Atkins asserts that the revised policy was not distributed to any GCHB employee who received the older version of the Employee Handbook, including herself. The version of the Handbook she received provided that the “no call/no show” penalty was a three day suspension, and a “2nd no show no call [would] result in termination.” (Doc. 53-1 at 134; Atkins Dep. at 113; 226.)

         In early September 2, 2011, Atkins enrolled in the Employees' Retirement System of Alabama (“ERS”), which is a defined benefit pension retirement plan through the Retirement Systems of Alabama (“RSA”). (See Doc. 53-1 at 150.) Participation in the ERS defined benefit plan[2] is mandatory for all non-temporary, full-time GCHB employees. Once enrolled, employees are required to continue participation in the ERS plan until their employment is terminated. (Patterson Dec. ¶ 5.) Vested members of the RSA pension plan are eligible to receive a monthly retirement benefit from RSA upon reaching retirement age. Individuals must participate in the plan for at least ten years to be vested. Atkins was not vested at the time of her termination as she participated in the plan for less than ten years.

         Before being paid to the RSA, retirement contributions deducted from employees' paychecks each month were put into a general fund from which general expenses were paid, instead of going into a separate payroll account. These contributions generally totaled $23, 000 to $30, 000 per month. JoAnne Cameron, Greene County Hospital Board office manager, testified that ERS deductions paid to the RSA are due “somewhere around” the tenth of the following month, and that they were almost never made within that time period by GCHB. (Cameron Dep. at 31.) Some payments[3] were delayed as many as three months.[4] (Atkins Dep. at 93-96.) Despite the tardy payments, the overall actuarial record valuation of the RSA shows that the pension plan for GCHB employees has been consistently 100% overfunded since at least 2010. (Doc. 53-1 at 169-171.) However, while in the general pool, funds were used by GCHB to pay various expenses. Employees complained about the late RSA payments and Mrs. Atkins brought the late payments to the attention of the Tiffany Grisby, who is the CFO, in addition to Mr. Inyang. On October 20, 2015, Atkins attended a board meeting to discuss her concerns surrounding the late RSA payments. At the meeting the board instructed Atkins to gather documentation and return with it for the next Board meeting. After Atkins addressed the Board, it was rumored that Patterson was looking for a reason to terminate her. Atkins again expressed concern to the Board at the November 2015 meeting and then again in early 2016.

         In August of 2014, Atkins was assigned as a logistics clerk under the supervision of Etebom Inyang (“Inyang”). On a 2015 performance evaluation, she received an overall rating of “average” with a “below average” rating for dependability. (Doc. 53-1 at 40-41.) Over the course of her employment, Atkins was given a number of disciplinary warnings on account of her tardiness. In August of 2015, she was suspended for one day for being late on four occasions during one pay period, and suspended for two days for being argumentative with a supervisor. (Doc. 53-1 at 141-45.) Atkins would document her absences before each pay period ended. If she wanted to take off of work, Atkins was required to obtain approval from Inyang by sending time off requests to him via Microsoft Outlook calendar invitations. Inyang would deny or approve the requests by either accepting or declining the invitation. On October 21, 2015, Atkins sent an Outlook invitation to Inyang making a request to be off of work on October 26, 2015. Atkins did not report to work October 26, 2015, and returned to work the following day on the 27th.[5] On October 29, 2015, two days after returning, Atkins was terminated.

         On December 16, 2015 Atkins submitted a request for a “lump sum payment” the “full distribution of [her] account.” (Doc. 63-1 at 152.) The RSA mailed Atkins' refund check accounting for the entire amount of her retirement contributions plus accrued interest. Upon receipt, Atkins cashed the check. (Atkins Dep. 78-80.)

         II. Standard

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact[6] and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is genuine if “the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Id. A genuine dispute as to a material fact exists “if the nonmoving party has produced evidence such that a reasonable factfinder could return a verdict in its favor.” Greenberg v. BellSouth Telecommunications, Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (quoting Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)). The trial judge should not weigh the evidence, but determine whether there are any genuine issues of fact that should be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

         In considering a motion for summary judgment, trial courts must give deference to the non-moving party by “view[ing] the materials presented and all factual inferences in the light most favorable to the nonmoving party.” Animal Legal Def. Fund v. U.S. Dep't of Agric., 789 F.3d 1206, 1213-14 (11th Cir. 2015) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). However, “unsubstantiated assertions alone are not enough to withstand a motion for summary judgment.” Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). Conclusory allegations and “mere scintilla of evidence in support of the nonmoving party will not suffice to overcome a motion for summary judgment.” Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016) (per curiam) (quoting Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004)). In making a motion for summary judgment, “the moving party has the burden of either negating an essential element of the nonmoving party's case or showing that there is no evidence to prove a fact necessary to the nonmoving party's case.” McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013). Although the trial courts must use caution when granting motions for summary judgment, “[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

         III. Discussion

         A. Plaintiff's Breach of Fiduciary Duty Claim

         1) Removal

         Plaintiff requests reconsideration of the Court's previous ruling on the motion to remand, (doc. 8), “because the employee retirement benefits received through Retirement Systems of Alabama (“RSA”) are exempt from the Employee Retirement Income Security Act of 1974 (“ERISA”).” (Doc. 54-1 at 7.) The Court upholds its previous ruling. This case was properly removed for the reasons set forth in its July 27, 2016 Memorandum of Opinion. (Doc. 12.)

         Atkins was given leave to file an amended complaint restating her claims under ERISA and to state her non-ERISA claims separately. On August 17, 2016, she did so, asserting an ERISA breach of fiduciary duty claim, and adding a new ERISA “whistle-blower” retaliation claim based on her termination. (Doc. 23 at 10-11.) Atkins insists her case is due to be remanded because she abandoned any reliance on the group insurance plans in her second amended complaint which was filed post-removal, and is now solely basing her breach of fiduciary duty claim only on the RSA plan, a non-ERISA plan. However, at the time of removal, Atkin's complaint asserted claims covered by ERISA which were subject to complete preemption. In cases removed from state to federal court, “the district court must look at the case at the time of removal to determine whether it has subject-matter jurisdiction.” Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 n. 2 (11th Cir. 2007) (per curiam) (citing Poore v. American-Amicable Life Ins. Co. of Texas, 218 F.3d 1287 (11th Cir. 2000));[7] see also Behlen v. Merrill Lynch, Phoenix Inv. Partners, Ltd., 311 F.3d 1087 (11th Cir. 2002) (holding that the district court must determine whether a federal question exists at time of removal using original complaint). As such, this Court properly maintained jurisdiction over the case and presently continues to have jurisdiction.

         Even if Plaintiff's subsequent abandonment of reliance on the prior insurance contract for her breach of fiduciary duty claim could oust the Court of jurisdiction, her addition of the whistleblower retaliation claim is covered by ERISA. Consequently, the Court has jurisdiction over the action. See Doc. 23 at 10 (“[Atkins] was terminated as a result of those complaints and in direct retaliation for attempting to exhaust her administrative remedies as provided by ERISA.”); see also Cotton v. Mass. Life Ins. Co., 402 F.3d 1267, 1280 (11th Cir. 2005) (“[B]ecause the post-removal amended complaint asserted claims under ERISA, we have jurisdiction even if removal was initially improper.”) (citing Pegram v. Herdrich, 530 U.S. 211, 215 n. 2 (2000)).

         2) ...


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