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MacGlashan v. ABS Lincs KY, Inc.

United States District Court, W.D. Kentucky, Paducah Division

January 29, 2015


For Margaret MacGlashan, Plaintiff: Brian Butler, LEAD ATTORNEY, Dathorne & Butler, LLC, Louisville, KY; James M. Bolus, Jr., LEAD ATTORNEY, Bolus Law Office, Louisville, KY.

For ABS Lincs KY, Inc., doing business as Cumberland Hall Hospital, Defendant: Demetrius O. Holloway, Stites & Harbison, PLLC - Louisville, Louisville, KY.


Thomas B. Russell, Senior United States District Judge.

This matter is before the Court upon Defendant ABS Lincs KY, Inc.'s motion for summary judgment. (Docket #48). Plaintiff Margaret Macglashan's has responded. (Docket #53). Defendant has replied. (Docket #72). These matters now are ripe for adjudication. For the reasons that follow, Defendant' s motion for summary judgment (Docket #48) is GRANTED in part and DENIED in part.


This case arises from the termination of Margaret MacGlashan as an employee of ABS Lincs KY, Inc., doing business as Cumberland Hall Hospital (" Cumberland Hall" ).

On June 6, 2013, MacGlashan was working as a nurse manager when she was notified that a patient with a known sulfa allergy had been given multiple doses of a sulfa-based antibiotic. (Docket #1). MacGlashan had the patient transferred to Blanchfield Army Community Hospital (" Blanchfield Hospital" ) for immediate medical care. MacGlashan then met with Cumberland Hall's CEO Jim Spruyt and Director of Nursing Sharon Shemwell to discuss the medical error. Spruyt instructed MacGlashan to check on the Plaintiff's status at Blanchfield Hospital. That evening, MacGlashan called Blanchfield Hospital and texted Spruyt what she had learned. (Docket #1).

The parties disagree about what occurred next. MacGlashan alleges she carried out Spruyt's order to investigate by taking the patient's medical records home to study and then personally visiting the patient the next day at Blanchfield Hospital. She claims Spruyt and Cumberland Hall became concerned about the negative attention her investigation might attract and suspended her. Plaintiff claims she was fired on the false allegation that she violated HIPAA. (Docket #24, 25). Conversely, Cumberland Hall argues that MacGlashan was only authorized to call Blanchfield Hospital on the evening of June 6, 2013. Cumberland Hall claims MacGlashan unilaterally chose to personally visit the patient and that Blanchfield Hospital complained about this visit to Cumberland Hall. Cumberland Hall also says that MacGlashan had taken portions of the patient's medical records without authorization. Cumberland Hall argues that MacGlashan violated HIPAA and Cumberland Hall fired her for this reason. (Docket #21, 35).

Cumberland Hall suspended MacGlashan on June 7, 2013. On June 13, MacGlashan received a call from Shemwell and Human Resources Manager Kelly Hagy. Hagy informed MacGlashan that Cumberland Hall had decided to fire MacGlashan on the grounds that she violated HIPAA. (Docket #1). Several months later Cumberland Hall reported to Health and Human Services that stated a " nurse" had violated HIPAA.

MacGlashan claims she was wrongfully terminated. MacGlashan also claims she has been defamed by Cumberland Hall's internal discussions that she violated HIPAA, by the report to Health and Human Services, and also that she has been compelled to repeat Cumberland Hall 's false claim that she violated HIPAA when she applied for other nursing positions. Cumberland Hall has moved for summary judgment on all claims.


Summary judgment is proper if the moving party can establish that the " pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

" [N]ot every issue of fact or conflicting inference presents a genuine issue of material fact." Street v. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is " whether the party bearing the burden of proof has presented a jury question as to each element in the case." Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The plaintiff must present more than a mere scintilla of evidence. To support this position, he must present evidence on which the trier of fact could find for the plaintiff. See id. ( citing Anderson v. Liberty Lobby, 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Mere speculation will not suffice to defeat a motion for summary judgment: " [t]he mere existence of a colorable factual dispute will not defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate." Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1177 (6th Cir. 1996).


Cumberland Hall has requested summary judgment on all of MacGlashan's claims. The Court will first address MacGlashan's (I) claim for retaliation; then her (II) claim for public policy wrongful discharge; then her (III) claim for defamation. Finally, the Court will address (IV) the necessity of expert testimony to prove emotional distress.

I. Retaliation.

The plaintiff bears the initial burden of establishing a prima facie case of discrimination. Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 797 (Ky. 2004). A plaintiff may meet this burden by showing she (1) " engaged in a protected activity; (2) the defendant knew that the plaintiff had done so; (3) adverse employment action was taken; and (4) that there was a causal connection between the protected activity and adverse employment action." Colorama, Inc. v. Johnson, 295 S.W.3d 148, 152 (Ky. App. 2009).

Cumberland Hall argues MacGlashan (A) did not engage in a protected activity; (B) that Cumberland Hall was unaware of any protected activity; and (C) MacGlashan cannot establish a causal ...

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