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Harvey v. Regional Health Network, Inc.

Supreme Court of South Dakota

January 3, 2018

SHIRLEY HARVEY and DON HARVEY, Plaintiffs and Appellants,

          ARGUED NOVEMBER 7, 2017


          GARY D. JENSEN BRETT A. POPPEN of Beardsley, Jensen & Lee, Prof, LLC Rapid City, South Dakota Attorneys for plaintiffs and appellants.

          JEFFREY G. HURD SARAH BARON HOUY of Bangs, McCullen, Butler, Foye & Simmons, LLP Rapid City, South Dakota Attorneys for defendants and appellees.


         [¶1.] The director of a senior care facility terminated an employee after two coworkers reported that the employee had slapped and secluded a resident in the facility. The employee maintained that the accusations were false and invoked the employer's grievance procedure. The employer sustained its decision to terminate the employee. Thereafter, the employee brought suit against the employer and certain management staff for slander, malicious prosecution, intentional infliction of emotional distress, punitive damages, wrongful discharge, negligent infliction of emotional distress, loss of consortium, and breach of contract. The employer and management staff moved for summary judgment on all causes of action, which motion the circuit court granted. The employee appeals. We affirm.


         [¶2.] Regional Health, Inc. is the parent company of Regional Health Network, Inc. Regional Network operates multiple acute care and senior care facilities, including Golden Ridge Regional Senior Care located in Lead, South Dakota. Shirley Harvey worked as a personal care attendant at Golden Ridge from March 2001 until her termination on June 8, 2012. While at Golden Ridge, Harvey received regular performance evaluations. Those evaluations praised Harvey on her care of the residents and her work ethic. For example, her March 2012 evaluation noted that she goes above and beyond for residents; is flexible and willing to help whenever needed; is willing to help find improvements, keeps the director informed in a timely manner, supportive of change, and encourages others about change; and ensures resident safety and provides appropriate care.

         [¶3.] Harvey's personnel file also included conference statements summarizing meetings between Harvey and management. In 2011, one statement indicated that Harvey was not supportive of coworkers, that coworkers did not want to work with Harvey due to her attitude toward them, and that coworkers are afraid to work with Harvey. In her deposition, Harvey explained that the coworker referred to in the conference statements was likely Jessica Strong Edstrom. Harvey did not approve of Edstrom's rough demeanor, the fact that Edstrom did not pull her weight at work, and that Edstrom smoked cigarettes, drank energy drinks, and took several breaks.

         [¶4.] It is undisputed that because of Harvey's interactions with her peers, Harvey received coaching sessions about her communication style and coworker support. In February 2012, Harvey received a corrective action for her continued negative interactions with coworkers. Then in April 2012, Harvey received another corrective action after she and Edstrom had a heated dispute related to a resident needing help. The dispute resulted in Harvey and Edstrom being required to meet with Kathe Shockey and Joelle Meade. Shockey was the human resources director at Golden Ridge and at the Lead-Deadwood Regional Hospital. Joelle Meade was the director at Golden Ridge. Harvey and Edstrom relayed their versions of the incident to Shockey and Meade. Meade told them they were both at fault. Shockey commented about the repeated issues related to Harvey's communication style. When Edstrom expressed that she was afraid to address anything with Harvey, Harvey laughed out loud and made light of the issue. Shockey informed Harvey that she was being inappropriate, and later when Harvey did not change her behavior, Shockey told Harvey that she was acting unprofessional.

         [¶5.] In response to Shockey's comments to Harvey during the April 2012 incident, Harvey filed a grievance against Shockey. She alleged that Shockey had humiliated and degraded her at the April 2012 meeting. But the grievance policy did not apply to Harvey's issue. Therefore, Harvey was informed that her grievance would not be processed. She, however, was also told that she could issue a complaint against Shockey. Harvey did not issue a complaint.

         [¶6.] Harvey also struggled interacting with coworker Joelle Ellenbecker. According to Harvey, Ellenbecker was angry at her because Harvey and her husband had complained to Meade and Shockey about several employees' tattoos, piercings, and baggy pants. After Harvey complained, Golden Ridge enforced stricter grooming standards, which required Ellenbecker to take out her nose piercing.

         [¶7.] On June 1, 2012, Ellenbecker and Edstrom reported to Meade that they saw Harvey slap a resident on the hand and mouth and put that same resident in the resident's room for approximately ten minutes after an incident involving food. Harvey now claims Ellenbecker and Edstrom made the reports only after Meade solicited them in response to a conversation Meade had overheard about certain employees needing to be fired. Regardless, it is undisputed that the resident allegedly slapped and secluded by Harvey has dementia and is known to be difficult to work with. Harvey often cared for the resident and had been known for being able to calm the resident.

         [¶8.] It is also undisputed that neither Edstrom nor Ellenbecker reported the alleged abuse immediately. When Edstrom and Ellenbecker reported the alleged abuse to Meade, they claimed that other residents and other employees were present when the incident occurred. Meade asked Edstrom and Ellenbecker to provide written statements, which statements they provided on June 4, 2012.

         [¶9.] In response to Edstrom's and Ellenbecker's verbal reports, Meade contacted Shockey and Rita Stacey. Stacey was the director of nursing. They discussed the allegations. According to Shockey, Meade recommended that Harvey be terminated. Meade later testified that she did not recall making that recommendation without first speaking to Harvey. Meade, however, conceded that during her investigation of the allegations, she did not ask other employees if they had witnessed Harvey mistreat any residents; nor did she question any residents.

         [¶10.] On June 4, Shockey sent an email to Dale Gisi. Gisi was the vice president of human resources for Regional Health, Inc. Shockey informed Gisi of the allegations against Harvey and noted that Meade had not visited with Harvey. Shockey told Gisi that Meade was "requesting termination" of Harvey.

         [¶11.] On June 5, Meade called the Department of Health to ask how to make a report of abuse. Meade had not yet met with Harvey. An email within the Department's files documenting the call indicated that Meade reported to the Department that "a CNA had been verbal with and slapp[ed] a resident with dementia[.]" The email further indicated that Meade said she had been told by Regional's legal department and lawyers that she was to contact the Department. She explained that she had waited to call until the reporting employee had provided a written statement. Meade informed the Department that she would send her report regarding the allegations as well as the employee's statement reporting the alleged abuse by the CNA. Meade later testified that she did not send the Department Edstrom's and Ellenbecker's statements or her report regarding the abuse within five days as required by ARSD 44:70:01:07. But she claimed that she initially reported the allegations of abuse because she was required to do so under mandatory reporting laws.

         [¶12.] On June 6, Meade and Shockey met with Harvey. Harvey denied slapping the resident. She admitted that she tapped the resident's hand and that she had taken the resident to the resident's room because the resident was using bad language. Following the interview with Harvey, Meade opined that she believed the accusations were true. Meade later testified that she relied on her recent observations of a change in behavior between Harvey and the resident. According to Meade, Harvey showed less tolerance for and increased frustration with the resident. Meade also relied on the allegations, especially by Ellenbecker whom she found credible. Meade recommended that Harvey be terminated.

         [¶13.] According to Meade, prior to terminating Harvey, she met with Shockey, Rita, Sherry Bea Smith, and Regional's legal department. Smith was the administrator of the Golden Living Center. Gisi also participated. Meade later explained that the group reviewed the information gathered and made a "consensual decision" to terminate Harvey.

         [¶14.] On June 8, Meade presented Harvey a corrective action form indicating her termination for: "Gross misconduct-seclusion of a resident involuntarily in their room as a result of misbehavior. Reported by multiple sources that employee slapped the hands and mouth of resident." Termination was based on "progressive discipline actions." Harvey refused to sign the corrective action form and the form indicating her change in employee status.

         [¶15.] On June 19, 2012, Harvey submitted an employee grievance form. She described her grievance as:

On 6-6-12, it was read to me 2 pages of allegations with no chance to defend myself. I was refused copies of these allegations. These allegations were so serious as to terminate my position on 6-8-12. Why were they not brought before me after each incident was supposedly to have happened?

         She described the "[d]esired [s]olution" as:

1) I want and need my name cleared. I have been doing care-giving since 1999; please see attached paper. 2) I would like all people involved with these allegations and[sic] dealt with accordingly. 3) I wish for the residents' care, safety, and security; without them being afraid of reprimand.

         On June 25, Meade reviewed Harvey's grievance and replied in writing:

I have reviewed the grievance that was submitted to me by Shirley Harvey. Legal counsel was consulted regarding the matter at hand. Legal counsel supports the decision for terminating and indicated there is validity in the action taken based on reported incidences. The identity of the witnesses will not be revealed to the former employee.

         Meade later testified that she made the decision to sustain the termination based on her recent ...

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