United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
JOSEPH H. McKINLEY, Jr., Chief District Judge.
This matter is before the Court on a motion by Defendant, Abbott Laboratories, for summary judgment [DN 40]. Fully briefed, this matter is ripe for decision.
I. STANDARD OF REVIEW
Before the Court may grant a motion for summary judgment, it must find that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and identifying that portion of the record that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Although the Court must review the evidence in the light most favorable to the nonmoving party, the non-moving party must do more than merely show that there is some "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the nonmoving party to present specific facts showing that a genuine factual issue exists by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence... of a genuine dispute[.]" Fed.R.Civ.P. 56(c)(1). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252. It is against this standard the Court reviews the following facts.
Plaintiff, Helane Miller ("Miller"), worked for Defendant, Abbott Laboratories ("Abbott"), for over 10 years. In September of 1999, Miller began working at Abbott in its Managed Care Division as a Senior Regional Account Executive. As a Senior Regional Account Executive, Abbott awarded Miller the title of "Rising Star" in 2000 and the title of "All Star" in 2001, 2002, 2003, and 2007. From 2000 to 2008, Abbott ranked Miller in the top 5% of the Managed Care Sales Force division. In November of 2008, Abbott laid off approximately 750 employees, including Miller.
In December 2009, Abbott re-hired Miller as a Sales Excellence Manager within its Pharmaceutical Product Division. A major portion of Miller's responsibilities in that position included identifying potential ethical violations within the company. In January of 2011, Abbott again underwent significant downsizing, eliminating approximately 2, 000 employees, including Miller. In November 2011, Abbott again re-hired Miller as a Therapeutic Nutrition Specialist. District Manager Bridget Bailey served as Miller's supervisor. Bailey reported to Laurence Carbone, Divisional Vice President of Sales for Pediatric, Home Health, and Oncology.
In October 2012, Bailey created a competition for employees within her division to submit written protocols. The employee who submitted the best protocol would receive $100. A protocol is an exclusivity agreement between Abbott and a health service provider whereby the health services provider agrees to provide its patients samples and coupons for Abbott products. During the competition, Miller learned that another Therapeutic Nutrition Account Manager, Tom Berry, stated to Karen Curl-Stepney with the Evangelical Home of Michigan that "[i]f you write the best protocol, I'll split the $100 bonus with you." Miller reported the bribe to Bailey. Miller alleges that she urged Bailey not to involve her supervisor Carbone, but instead, pursuant to the Office of Ethics and Compliance ("OEC") policy, Miller was required to report the information. Bailey instructed Miller not to contact the OEC, and Bailey instead contacted Carbone.
On October 3, 2012, Miller alleges that she informed the OEC about Berry's $50 bribe, Bailey's insistence that Miller not report the bribe to the OEC, and Bailey's decision to conduct her own internal investigation. According to Miller, she reported Berry's bribe based on her training on the False Claims Act, the Anti-Kickback Statute, and her belief that Abbott was violating a 2012 Corporate Integrity Agreement ("CIA"). On October 4, 2012, Bailey called Curl-Stepney and asked about her contact with Berry. Curl-Stepney told Bailey that "Tom's comments were probably in jest." On October 5, 2012, Bailey talked with Berry, and he denied any wrongdoing. In December of 2012, the OEC concluded its investigation and determined that it would take no action against Berry, but required Bailey to complete formal OEC training and placed a written report in Bailey's personnel file for inappropriately disclosing Miller's disclosure of Berry's bribe and initiating her own investigation.
Miller alleges that following her disclosure of Berry's bribe to the OEC, Bailey informed the hiring manager of Abbott's pharmaceutical arm, AbbVie, about Miller's report of Berry. Additionally, while Bailey indicated in Miller's 2012 annual performance evaluation that Miller was "Achieving Expectations, " Miller noticed Bailey's demeanor toward her shift. Miller states that Bailey refused to let her roll over her vacation hours as previously discussed; screamed at her in January of 2013; refused to provide training to Bailey on tube feeding on at least three occasions; screamed at her in front of other employees in May of 2013 while not reprimanding other similar employees; threatened that she needed to either retire or be fired; incorrectly indicated in a warning memo issued on June 28, 2013 that Miller had secured no protocols; failed to place Miller on a formal PIP before terminating her; and terminated Miller even after Miller had formally announced her intention to retire.
In contrast, Abbott represents that Miller was terminated in September of 2013 as a result of her deteriorating performance. Miller failed two certification tests in February 2013 that were administered to all sales representatives. On retest, Miller passed the Business Review Deck Evaluations test in March of 2013. However, Miller failed the Objection Handling Certification a total of three times. Abbott claims that Miller failed to complete essential pre-work for a meeting held in May of 2013 and failed to complete other assignments in June of 2013. On June 28, 2013, Bailey issued a Performance Expectations Coaching Memo to Miller discussing her lack of preparation for meetings and training, failure to follow up with protocols, lack of knowledge of the business, lack of production knowledge, and failure to use good judgment. On August 25, 2013, Bailey informed Miller that she would be putting her on a PIP. However, after discussing it further, Bailey, Carbone, and Colleen Plettinck, Abbott's Senior Specialist for Employee Relations, decided that termination was appropriate given Miller's repeated failure to pass a required certification, poor performance, and her lack of will and desire to perform well. Cindy Foster of the Business Human Resource Department and Jerry Hutchinson, Divisional Vice President of Human Resources also approved the termination in late August of 2013. On September 5, 2013, Miller informed Bailey and Carbone that she had decided to retire with a retirement date of October 31, 2013. Abbott terminated Miller's employment on September 9, 2013.
In May of 2014, Miller filed suit against Abbott Laboratories alleging (1) retaliation in violation of the False Claims Act, 31 U.S.C. § 3730(h), (2) wrongful discharge in violation of KRS § 205.8461, and (3) retaliation in violation of Section 828 of the National Defense Authorization Act, 41 U.S.C. § 4712. Abbott now moves for summary judgment arguing that Miller's False Claims Act retaliation claim fails as a matter of law because Miller cannot establish a prima facie case of retaliation or that Abbott's reasons for its adverse actions were pretextual. Additionally, Abbott argues that Miller's wrongful discharge claim under Kentucky common law is preempted by Kentucky's statutory anti-retaliation provision contained in KRS § 205.8465. Finally, Abbott asserts that Miller's National Defense Authorization Act ("NDAA") claim fails because it ...