                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 17a0562n.06

                                           No. 17-5025

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                      FILED
TERESA BLAIR,                                            )                        Oct 06, 2017
                                                                             DEBORAH S. HUNT, Clerk
                                                         )
          Plaintiff-Appellant,                           )
                                                         )
v.                                                       )      ON APPEAL FROM THE
                                                         )      UNITED STATES DISTRICT
MAXIM HEALTHCARE SERVICES, INC.,                         )      COURT FOR THE WESTERN
                                                         )      DISTRICT OF KENTUCKY
          Defendant-Appellee.                            )
                                                         )




          Before: SUHRHEINRICH, GRIFFIN, and KETHLEDGE, Circuit Judges.

          KETHLEDGE, Circuit Judge. Maxim Healthcare Services, Inc. employed Teresa Blair

as a nurse. Maxim fired her after a supervisor noted “serious problems” with her performance.

Blair sued for wrongful discharge. The district court granted summary judgment to Maxim. We

affirm.

                                                I.


          Blair provided in-home medical care to Jordan Cottle, who suffered from cerebral palsy

and mental retardation. Cottle relied on a ventilator and tracheostomy tube to breathe. Maxim’s

nurses cared for him 16 hours a day; Cottle’s mother was responsible for the other eight.

          During an annual performance review, Blair’s supervisor told her to “report all

inciden[ts]” involving Cottle or his family, which she did many times. Beginning in 2009 and
No. 17-5025
Blair v. Maxim Healthcare Services, Inc.

continuing until her termination in 2014, Blair repeatedly told her supervisors that Cottle’s

mother had neglected Jordan’s care. For instance, Blair complained to a supervisor that Cottle’s

mother was not mentally capable of caring for him. On another occasion, Blair told a supervisor

that—after Cottle had been left in his mother’s care overnight—Blair had found his ventilator

disconnected.

       Meanwhile, Blair had problems of her own: she had shown up at Cottle’s house when

not scheduled to work; made errors on Cottle’s medical chart; failed to take Cottle’s vital signs

as required by his doctor; falsely reported that the doctor had ordered Cottle quarantined and that

Blair alone care for Cottle while he had the flu; and attempted to change Cottle’s schedule

without her supervisor’s permission.

       On the morning of December 30, 2013, Blair arrived to find Cottle in distress. His

ventilator was again detached and his tracheostomy tube was on the floor. Blair reattached the

tube and removed secretions from his airway. She also tried unsuccessfully to wake his sleeping

mother. Blair then called her supervisor, Jodi Ward, and told her what had happened.

       Ward in turn called Kentucky’s Child Protective Services and Cottle’s doctor. Then

Ward told Blair to call an ambulance. When Cottle arrived at the hospital, a doctor evaluated

him and noted “normal vital signs and no clinical signs of illness or distress.” Ward told Blair to

turn Cottle’s care over to the hospital staff. Yet Blair continued to shadow hospital staff until

that evening. Cottle was released from the hospital the next day.

       About a week later, Maxim gave Blair a written warning reciting that Blair had failed to

follow her supervisor’s instructions to let the hospital staff take over, among other things.

Sixteen days after Cottle’s release from the hospital, Susan Nutter—one of Blair’s supervisors

and a registered nurse—visited Cottle’s home and noted some “serious problems.” Specifically,


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Blair v. Maxim Healthcare Services, Inc.

Blair had not placed the pulse-oximeter probe on Cottle’s finger, which was a problem because

the doctor (and Blair’s supervisor) had ordered continuous use of the probe to measure Cottle’s

blood-oxygen saturation level. Blair had also failed to place Cottle’s ambu-bag at his bedside.

This device was supposed to be within arm’s reach so that, in an emergency, Blair could use it to

help Cottle breathe. Instead, it was in a closet on an upper shelf and the closet door was blocked

by a large piece of equipment used to lift Cottle from his bed. A month before, Blair had been

reprimanded for the same mistake. Nutter reported these problems to Blair’s supervisor, Christy

Mancuso, and Maxim’s Director of Business Operations Kevin Sullivan. Maxim fired Blair the

next day.

          Blair thereafter sued Maxim in Kentucky state court, asserting wrongful-discharge

claims.     After Maxim removed the case to federal court under diversity jurisdiction, Blair

amended her claims to assert that Maxim had discharged her in violation of Kentucky’s Patient

Safety Act. See Ky. Rev. Stat. § 216B.165. The district court granted summary judgment to

Maxim on all claims. This appeal followed.

                                                  II.

          We review the district court’s grant of summary judgment de novo. Mendel v. City of

Gibraltar, 727 F.3d 565, 568 (6th Cir. 2013).

          The Patient Safety Act requires any “employee of a health care facility . . . who knows or

has reasonable cause to believe that the quality of care of a patient, patient safety, or the health

care facility’s or service’s safety is in jeopardy” to “make an oral or written report of the problem

to the health care facility[.]” Ky. Rev. Stat. § 216B.165(1). The Act also prohibits any “health

care facility or service” from retaliating “against any agent or employee who in good faith

reports[.]” Ky. Rev. Stat. § 216B.165(3).


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Blair v. Maxim Healthcare Services, Inc.

       To prevail on her claim under the Act, Blair must show (i) that she engaged in a protected

activity under the Act, (ii) that Maxim knew about her protected activity, and (iii) that Maxim

took an adverse employment action against her because of it. See Colorama, Inc. v. Johnson,

295 S.W.3d 148, 152 (Ky. Ct. App. 2009). We focus on the element of causation here. See CNA

Ins. Co. v. Hyundai Merch. Marine Co., 747 F.3d 339, 371 (6th Cir. 2014). That element

requires proof that the plaintiff’s “protected activity was the likely reason for the adverse action.”

Kentucky Dep’t of Corr. v. McCullough, 123 S.W.3d 130, 135 (Ky. 2003).

       As proof of causation, Blair relies primarily on the temporal proximity between her

putative protected activity (namely her complaint to Ward about Cottle’s condition on December

30, 2013) and her firing 18 days later. But temporal proximity alone is often not enough to

create a question of fact. See, e.g., McBrearty v. Kentucky Cmty. & Tech. Coll. Sys., 262 S.W.3d

205, 213 (Ky. Ct. App. 2008). And here, for several reasons, the probative value, if any, of that

proximity is minimal. First, given the number of Blair’s complaints about Cottle’s mother, any

adverse employment action would be close in time to a complaint—no matter when it occurred.

Second, Blair’s supervisor told her to “report all inciden[ts]” involving Cottle or his family,

which she did many times without being punished for it. And third, as described above, the

problems that Nutter observed were merely the latest in a long series for Blair. Hence the

18 days between her complaint and termination are not enough to allow a reasonable jury to find

that one caused the other.

       Blair contends that a jury could find causation because Maxim falsely, in Blair’s view,

accused her of interfering with the Kentucky Protective Services investigation of the December

2013 incident that sent Cottle to the hospital. And she also says that a trainee told her that she

was going to be fired shortly before she in fact was. But these assertions are relevant to pretext,


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Blair v. Maxim Healthcare Services, Inc.

not causation. And pretext is irrelevant here until Blair presents proof that creates a genuine

issue as to causation—which she has not presented.       See Charalambakis v. Asbury Univ.,

488 S.W.3d 568, 583-85 (Ky. 2016).

                                           *    *    *


       The district court’s judgment is affirmed.




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