Clark-Kutscher v. SSM Health Care Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

CAROL CLARK-KUTSCHER,

Plaintiff,

Vv. Case No. 3:21-CV-01446-NJR

SSM HEALTH CARE CORPORATION,

Defendant.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Overpopulated hospitals, a shortage of personal protective equipment,

overworked nurses and hospital staff—this lawsuit originates in the height of the

COVID-19 pandemic. At a time when most frontline medical workers were celebrated as

heroes, Carol Clark-Kutscher found herself fired. Clark-Kutscher worked as a palliative

care Nurse Practitioner at SSM Health Good Samaritan Hospital! (“Good Samaritan”)

starting in June 2019 until her termination in October 2020. (Docs. 36-1, pp. 19-20; 36-2).

Palliative care involves educating and assisting patients with chronic disease

management, life-limiting illnesses, and end-of-life decision-making including Power of

Attorney and Do Not Resuscitate (“DNR”) decisions. (Doc. 36-4). As a nurse practitioner,

Clark-Kutscher performed comprehensive patient assessments, developed treatment

1 SSM Health Care Corporation is named as the defendant in the Complaint. (Doc. 27). St. Mary’s Good

Samaritan, Inc. is a subsidiary of SSM Regional Health Services, which is, in turn, a subsidiary of SSM

Health Care Corporation. (Doc. 39). For the purposes of this Order, the Court will refer to Defendant as

“Good Samaritan.”

Page 1 of 25

plans, and supported patients in completing various health care directives, known as

advanced directives or Practitioner Orders for Life-Sustaining Treatments (“POLST”)

forms, which describe the treatments patients consent to receive if necessary to sustain

life. (Id.; Docs. 36-3, pp. 49-50, 58-60; 40-3, pp. 24-28). These types of end-of-life decisions

and documentations commonly fall under the umbrella of “advanced care planning.”

(Docs. 36-4; 40-3, pp. 25-26). Clark-Kutscher completed documentation for her patient

interactions and services, which would be reviewed by a collaborating physician,

Dr. Trenton Grimm, who reported to Dr. Cory Black, Chief Medical Officer for Good

Samaritan. (Docs. 36-3, p. 94; 40-3, p. 196).

During the first half of her employment with Good Samaritan, Clark-Kutscher

worked under Jennifer Sims and received a formal performance evaluation from Sims in

December 2019. (Docs. 36-1, p. 26; 40-6, pp. 42-47). In that evaluation, Sims rated Clark-

Kutscher as “exceeds expectations” in most categories and “meets expectations” in

others. (Doc. 40-5, p. 21; 40-6, pp. 42-47). Shortly after her positive performance review,

Clark-Kutscher briefly reported to Dr. Black. (Doc. 36-3, pp. 18-19). Then in February

2020, Clark-Kutscher began directly reporting to Heather Turner and remained Turner’s

subordinate until her eventual departure from Good Samaritan. (Id. at pp. 37-38; Docs. 36-

1, pp. 26-27; 36-2).

Fast-forwarding to late September 2020, Clark-Kutscher received a Notice of

Corrective Action for several documented incidents throughout the preceding two

months. (Doc. 37). The Notice explained that Turner received several reports that Clark-

Kutscher exhibited non-compassionate and aggressive behavior towards patients,

sometimes pushing them to make hasty end-of-life decisions. (Id.). In one specific

incident, Turner heard that Clark-Kutscher revealed a terminal diagnosis to a patient

whose physician had not yet disclosed or discussed that information. (Id.). In another, a

patient purportedly complained that Clark-Kutscher forced him to choose a DNR

classification to be transferred to a nursing home. (Id.). Clark-Kutscher also allegedly

attempted to get a young COVID-19 patient to refuse CPR. (Id.). The Notice also cited

instances of incomplete documentation regarding appropriate contacts and chosen

decision-makers for her patients. (Id.) Turner also admonished Clark-Kutscher for

refusing referrals from physicians for comfort care orders for patients at discharge. (Id.)

According to Turner, Clark-Kutscher’s vernacular caused discomfort amongst her

colleagues. (Id.). Clark-Kutscher used words like “roadkill” and “toast” to describe dire

patient conditions. (Id.; Doc. 40-3, pp. 192-93).

Of course, Clark-Kutscher denied and provided explanations for the reported

conduct. Responding to the incident where Clark-Kutscher revealed a terminal diagnosis,

she contended the patient should have already known about his terminal condition as he

left a prior hospital with that diagnosis. (Doc. 37). Clark-Kutscher also argued that she

helped the patient by attempting to find his brother for power of attorney purposes. (Id.).

In response to the patient complaint about a forced DNR status, Clark-Kutscher detailed

her interactions with the patient and his long history of non-compliance, drug and alcohol

abuse, and homelessness. (Id.). She denied ever forcing him to elect a code status before

allowing him to transfer to a nursing home and stated that he had completed a POLST

form and wanted to be DNR. (Id.). With the young COVID-19 patient, Clark-Kutscher

explained that she urged the patient and her husband to consider choosing no CPR

because such measures proved ineffective with COVID-19 and could unnecessarily

expose employees to the virus. (Id.). Regarding documentation, Clark-Kutscher described

her specific methodology of using different note formats based on each visit. (Id.). As to

the distasteful phrases, according to Clark-Kutscher, “roadkill” and “toast” were

commonly used amongst nurses during her multi-decade career, not out of disrespect to

patients but to efficiently convey the level of severity for each patient. (Doc. 40-3, pp. 192-

93). For the comfort care refusals, Clark-Kutscher asserted that she could not place orders

for narcotics without first seeing the patient. (Docs. 37; 40-12).

Two weeks after the initial Notice, Turner, with support from human resources,

issued a Final Notice of Corrective Action that detailed other misconduct including

incorrect or missing documentation, incomplete notes, inadequate records of patient

assessments, and poor communication with a physician. (Doc. 37). That notice threatened

further corrective action, including termination, if she failed to improve performance.

(Id.). For each Notice of Corrective Action, Clark-Kutscher met with Turner and a human

resources representative, Christy Carroll. (Docs. 36-3, pp. 117-19; 36-5, pp. 41-42).

Upon delivery of the Final Notice, Clark-Kutscher was given one week to modify

her behavior or risk termination. (Id.; Doc. 37). Clark-Kutscher recalled that Carroll stuck

a finger in her face and called her “the most despicable person she had ever met.”

(Docs. 40-3, p. 161; 47-1). Upset, Clark-Kutscher walked back to her office to pack up her

belongings. (Docs. 36-3, pp. 118-19; 40-3, pp. 165-66). Based on the contentious nature of

the meeting and the aggressive attempts to get Clark-Kutscher to quit, she construed the

Notice and accompanying conversation with Turner and Carroll as a termination and

told coworkers that she had just been fired. (Docs. 36-1, pp. 165-67; 36-3, pp. 120-21).

Turner and Carroll arrived at Clark-Kutscher’s office as she packed up. (Docs. 36-3,

p. 121; 36-5, pp. 48-49). Carroll claims that she emphasized that Clark-Kutscher had an

opportunity for performance improvement, and the Notice was not a termination.

(Doc. 36-5, pp. 48-49). Carroll also testified that, during this interaction, Clark-Kutscher

voluntarily resigned with the promise of two weeks’ pay. (Id. at p. 49). After ensuring

that Clark-Kutscher left the building, Carroll filled out termination records in Workday,

a digital human resources system. (Doc. 46-2, pp. 50, 55-56). In Workday, Carroll selected

“Involuntary resignation at company’s request” as the primary reason for termination.

(Id. at p. 56; Doc. 40-9, p. 57).

According to Clark-Kutscher, the reported reasons for disciplinary action were a

ruse to force her out of Good Samaritan. Clark-Kutscher believed that the corrective

action notices and her ultimate termination stemmed from her refusal to adjust

documentation so her services could be billed to Medicare or insurance. (Doc. 40-3,

pp. 63-71, 161). During the disciplinary process, Clark-Kutscher expressed concern that

management asked her to commit “Medicare fraud” by representing each of her services

as billable or to falsely document her patient interactions as consults. (Docs. 40-3, pp. 63-

64, 70, 161; 40-9, pp. 28-33).

For context, medical service providers at Good Samaritan completed consultation

and progress notes to document the services rendered to patients. (Docs. 36-3, p. 83; 36-

6, p. 42; 40-3, p. 71). The content of those notes helped a hospital coder apply the

appropriate code for the provided services, and eventually, the billing department

generated a bill based on the codes. (Doc. 36-6, pp. 13-14). From the bill, Good Samaritan

sought reimbursement from Medicare or insurance. (Id.). Clark-Kutscher referred to the

practice of completing her service documentation and notes as “billing,” as a short form

way of describing the aforementioned process. (See Docs. 36-1; 40-3). While she did not

code or formulate any bill, Clark-Kutscher allowed billing requirements to inform her

note drafting and remained cognizant that codes were applied to her notes, which

eventually translated into bills. (Doc. 36-1, pp. 38-41). To be clear, Clark-Kutscher held

responsibility for correctly documenting the details of her patient interactions and

services, not to apply codes or submit bills to insurance. (Doc. 36-5, p. 45). Debbie Wilkins,

a Certified Coding Specialist at Good Samaritan, assigned codes to Clark-Kutscher’s

documentation. (Doc. 36-6, pp. 12-13, 15-16, 19).

Turner and Clark-Kutscher disagreed on many occasions over how to document

certain services for proper coding and billing. (See Docs. 36-1; 36-3; 36-5; 37; 40-8; 40-10; 40-

12). Providers, including Clark-Kutscher, filled out consultation notes for their first

interaction with a patient and progress notes for any subsequent interactions with the same

patient. (Doc. 36-6, p. 18). Within patient care notes, specific information must be included

for codes to be applied. (Id. at pp. 28-34; Docs. 40-7, pp. 13-18; 40-8, p. 6). For example,

medical visits billable to Medicare must include an in-person consultation with a

provider where the patient can be physically assessed and examined. (Docs. 36-6, p. 36;

40-3, pp. 29-31). During the pandemic, however, Clark-Kutscher struggled to physically

meet with COVID-19 patients because of their fragile condition and Good Samaritan’s

limited supply of personal protective equipment (“PPE”). (Docs. 36-6, p. 36; 40-3, pp. 34-

35, 68, 114). Instead, she spoke with many patients over the phone, which was not a

billable service. (Doc. 40-3, pp. 107, 114). Clark-Kutscher also insisted that advance

directives and completion of POLST forms were free services that made up the bulk of

her work. (Id. at pp. 31-33). In May 2020, the palliative care unit participated in a

telephonic meeting where Clark-Kutscher understood she was being instructed to

document interactions with Medicare patients as consultations. (Doc. 36-1, pp. 62-63).

Clark-Kutscher also testified that Turner instructed her to create billable notes for

advanced directives and to document every patient interaction as a consult after this

meeting. (Id. at pp. 55, 63-65, 69). Following up, Turner and Dr. Black sent Clark-Kutscher

templates of notes to solve the documentation issues. (Id. at pp. 65-66; Doc. 40-3, pp. 67-

68). Dr. Grimm and Turner reprimanded her for documentation issues. (Doc. 36-1, pp. 55-

56).

In late August 2020, Wilkins emailed Clark-Kutscher to address some concerns

regarding her documentation. (Doc. 40-8, p. 7). Wilkins wrote,

“I have noticed that on your Consultation H&P’s I am not getting

enough information to give a charge for the note. There have been a

lot of no charges for these consultation notes. I am looking at one

now and it just is a couple of sentences. Many of the notes refer to

discussion with family about patient code status, POLST forms, etc.

To give a Consultation H&P charge, I would need to have all of the

elements required for an H&P. Also, there are progress notes that are

similar in nature and I would need the elements required for

subsequent notes in order to charge these.”2

2 “H&P” means history and physical exam. (Doc. 36-6, p. 41).

(Id.). Clark-Kutscher forwarded the email to Turner, who spoke with Wilkins in further

detail. (Id. at pp. 6-7). Turner then provided information to Clark-Kutscher about the

necessary elements for progress notes to resolve the deficiencies identified by Wilkins. (Id.).

In response, Clark-Kutscher emphasized that she knew the requirements for consult and

progress notes and explained that in the questioned documentation she merely spoke with

the families regarding code status and, thus, her notes were sufficient for this non-billable

service. (Id. at p. 5). Wilkins eventually agreed. (Id. at p. 2). Turner further highlighted to

Clark-Kutscher that she could create a consult note if she completed a full assessment, and

she could enter progress notes if two of the three required components were present per

the coding manual. (Id. at p. 5).

A month after that email exchange, Turner reached out to Wilkins to see if in-person

advanced directives were a billable service or if a full assessment would be necessary.

(Doc. 40-10, p. 3). Wilkins informed Turner that a full assessment was necessary to charge,

whereas simply discussing an advanced directive without any patient examination could

not be charged. (Id.). Clark-Kutscher interjected to express that she considered advance

directives and POLST forms as “no charge” services even though they were listed as

consults in the system. (Id. at p. 2). Turner replied clarifying that if Clark-Kutscher saw a

patient, she should conduct an assessment and enter a consult note that complied with the

billing requirements. (Id.). Turner further instructed Clark-Kutscher to create progress

notes in a billable format when following-up with a patient. (Id.).

Aside from billing practices, Clark-Kutscher also alleges that Good Samaritan

terminated her because of her age and replaced her by a much younger candidate.

(Doc. 27). During her deposition, however, Clark-Kutscher did not mention age as a

suspected reason for her termination. (Doc. 36-1, pp. 10-11). She was 61 years old when

she departed from Good Samaritan. (Id. at p. 10; Doc. 36-2). About three months later,

Good Samaritan filled her vacant role with Jennifer Starr, a 40 year-old newly graduated

Nurse Practitioner. (Doc. 38). Clark-Kutscher subsequently filed a charge alleging age

discrimination with the Illinois Department of Human Rights (“IDHR”), which dismissed

the charge for lack of substantial evidence after an investigation. (Docs. 36-7; 36-8).

Clark-Kutscher sued Good Samaritan in November 2021, and amended her

Complaint in May 2022. (Docs. 1; 27). Her four-count Amended Complaint contains

allegations of retaliation in violation of the False Claims Act, 31 U.S.C. § 3730(h), et seq.,

and the Illinois Whistleblower Act, 740 ILCS 174/20, along with age discrimination in

violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq., and the

Illinois Human Rights Act, 775 ILCS 5/1-101.1. (Doc. 27). Now, Good Samaritan moves

for summary judgment arguing that Clark-Kutscher has failed to produce evidence

supporting her retaliation and age discrimination claims that create a genuine issue of

material fact. (Docs. 35-39). Clark-Kutscher filed a timely response in opposition to the

motion, to which Good Samaritan filed a timely reply. (Docs. 40; 46).

LEGAL STANDARD

A court should grant summary judgment “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” FED. R. CIV. P. 56(a). Assertions that a fact cannot be or is genuinely disputed

must be supported by materials in the record, including depositions, documents,

electronically stored information, affidavits or declarations, stipulations, admissions,

interrogatory answers, or other materials. FED. R. CIV. P. 56(c)(1). Once the moving party

sets forth the basis for summary judgment, the burden then shifts to the nonmoving party

who must go beyond mere allegations and offer specific facts showing that there is a

genuine issue of fact for trial. FED. R. CIV. P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317,

323-24 (1986). In determining whether a genuine issue of fact exists, the Court must view

the evidence and draw all reasonable inferences in favor of the non-movant. Bennington

v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986).

DISCUSSION

I. Retaliation

a. False Claims Act (FCA)

The FCA prohibits and imposes civil penalties for known submissions of false or

fraudulent claims for payment or approval to the government. 31 U.S.C. §§ 3729-3733.

Employees are protected from retaliation, including discharge, demotion, and other

forms of harassment or discrimination, for any lawful act taken in furtherance of an action

under the FCA or for other efforts to stop one or more violations of the FCA. Id. at

§ 3730(h). To prevail on a retaliation claim, a plaintiff must demonstrate that (1) he or she

acted in furtherance of an FCA enforcement action or to stop at least one violation of the

FCA; (2) the employer had knowledge of plaintiff’s engagement in this protected

conduct; and (3) the discharge was motivated, at least in part, by the protected conduct.

Brandon v. Anesthesia & Pain Management Associates, Ltd., 277 F.3d 936, 944 (7th Cir. 2002);

Halasa v. ITT Educational Services, Inc., 690 F.3d 844, 847-48 (7th Cir. 2012). To determine

whether an employee’s conduct is protected under the FCA, both a subjective and an

objective inquiry are necessary. Courts evaluate whether (1) the employee, in good faith,

believed that the employer was committing fraud against the government, and (2) a

reasonable employee in the same or similar circumstances could hold the same belief.

United States ex rel. Uhlig v. Fluor Corp., 839 F.3d 628, 635 (7th Cir. 2016). For the objective

prong, courts consider facts known to the employee at the time of the alleged protected

activity. Id.

i. Protected Activity

In its motion for summary judgment, Good Samaritan identifies Clark-Kutscher’s

only possible protected activity as refusing to “bill” advance directives as consultation

notes or progress notes and declining to perform consultations on patients who she could

not see face-to-face. Clark-Kutscher’s refusal to perform these tasks, according to Good

Samaritan, represents an absurd basis for protected activity. Good Samaritan argues that

Clark-Kutscher held one responsibility: accurately documenting her patient interactions.

She did not submit bills to Medicare or select codes for her provided services. Moreover,

simply drafting a consultation note or progress note would not provide a basis for Good

Samaritan to bill Medicare, rather the note’s content guided the coding and billing

decisions. Good Samaritan contends that, at most, Clark-Kutscher refused to heed clerical

directions about how to document patient interactions, not any instructions to falsify her

notes or commit fraud.

On the contrary, Clark-Kutscher argues that expressing her concerns to her

supervisor, Turner, about potential Medicare fraud constituted protected activity. Clark-

Kutscher believed management asked her to formulate her notes to transform non-

billable services to billable services. Those non-billable services included patient

interactions over the phone and visits without a physical assessment, including the

execution of advanced directives and POLST forms. Clark-Kutscher worried about

committing fraud and losing her license if she followed her supervisor’s instructions.

As an initial matter, when an employee reports instances of potential FCA violations

to a supervisor, a trier of fact could find that the employee engaged in “efforts to stop” an

FCA violation. United States ex rel. Sibley v. Univ. of Chicago Medical Center, 44 F.4th 646, 663-

64 (7th Cir. 2022). Here, Clark-Kutscher’s testimony makes clear that she repeatedly told

Turner, her supervisor, that billing or drafting her notes as directed would be “illegal”

and constitute “Medicare fraud.” While reporting to a supervisor can constitute protected

activity, the Court must still determine whether the employee had a good-faith belief that

the employer acted fraudulently towards the government, and whether a reasonable

employee in similar circumstances could hold the same belief considering the facts

known at the time. Id. at 661. Within this analysis, Clark-Kutscher’s claim under the FCA

is doomed.

Taking all the evidence in the light most favorable to Clark-Kutscher, the record

demonstrates that she believed, in good-faith, that Good Samaritan asked her to commit

fraud against the government. Her belief, however, was not reasonable given the facts in

evidence. Thus, a reasonable employee in similar circumstances would not believe Good

Samaritan committed fraud against the government or asked Clark-Kutscher to do so.

Clark-Kutscher points to her testimony, declaration, and emails exchanged between her,

Turner, and Wilkins as presenting genuine issues of material fact that Turner and other

employees repeatedly asked her to “bill” for services that, under the standards for

Medicare, were non-billable, such as advanced directives and POLST forms. She also

leans on her decades-long career and training related to Medicare billing practices to

demonstrate the reasonableness of her belief that Good Samaritan attempted to defraud

the government. But the evidence falls short of creating a triable issue.

Through her testimony, Clark-Kutscher explained that nurse practitioners in

advanced care planning assess patients as a provider, develop care plans, and write

orders or prescriptions. She testified that, personally, she would “plan” on every patient

she saw. Clark-Kutscher described that as a nurse practitioner her consultation notes and

progress notes were billable to Medicare. She acknowledged, however, that these patient

care notes, to be billable, must meet certain criteria and include specific information.

Admittedly, Clark-Kutscher did not know what billing codes were actually applied to

her notes or what services were billed to Medicare.

Clark-Kutscher points to a few examples in the record to show that Good

Samaritan urged her to bill for services that should have been free. First, she testified that,

in the May palliative care phone meeting, another nurse told her to document all

interactions with patients as consultations. Next, Clark-Kutscher testified that Turner

instructed her, via phone and email communications, to complete billable notes (such as

progress notes) on advanced directives and POLST forms. Lastly, she testified that she

was asked to do consults on patients who could not talk or that she could not physically

visit and assess. The COVID-19 pandemic also hindered her ability to meet with patients

in-person and fundamentally shifted her work due to the alarming rate of infection and

death from the virus. Because of the pandemic, her ability to offer billable services

plummeted, which created tension with Turner, who aimed to maximize billable services.

This evidence, at most, shows that Turner preferred each patient interaction to be

captured in a consultation note or progress note. While these notes can be billable, if the

content of the notes did not meet the billing criteria, Wilkins coded the notes as “no

charge.” There is no evidence that Turner pushed Clark-Kutscher to record false

information within her patient care notes so that unperformed services could be

submitted to Medicare or insurance for reimbursement. In fact, Clark-Kutscher testified

that no one at Good Samaritan told her to include a service in her notes that she did not

provide, only that she was instructed to put her notes in a “billable format,” meaning in

a consultation or progress note. Further, Clark-Kutscher admitted that, in the past, she

included advanced directives in consultation or progress notes, not for billing purposes,

but to follow-up on what was previously done with a patient.

The email communications between Turner, Wilkins, and Clark-Kutscher are no

more helpful in creating a triable issue. Wilkins emailed Clark-Kutscher regarding

possibly deficient information in her patient care notes, which Turner sought to rectify

by outlining the necessary information for progress notes to be billable. Turner directly

messaged Wilkins, who explained that when Clark-Kutscher simply called a patient’s

family regarding a code status her notes sufficiently recorded the “no charge” service.

Turner then asked if it was appropriate to enter progress notes for “no charge” services.

Addressing the issue about consultations, Turner told Clark-Kutscher that full consults

are only necessary if Clark-Kutscher completed a full assessment on a patient. In another

email chain, Turner instructed Clark-Kutscher to complete an assessment and enter an

assessment note if she was seeing a patient. In similar advice, Turner directed Clark-

Kutscher that “if [she] follow[ed]-up with the patient” her follow-up notes needed to be

“in the format that is billable.” Clark-Kutscher now hangs her hat on that statement as

evidence that Turner urged her to commit fraud. But Turner’s statement does not warrant

such an inference, instead the instruction is benign—for patient follow-ups, the follow-

up notes should be recorded in a billable format. Much of the tension between Turner

and Clark-Kutscher related to note formatting and inclusion of sufficient detail for the

coder to properly assess and code the note. The record also shows an ongoing effort by

Turner and Dr. Black to create workable templates with Clark-Kutscher, to ensure notes

captured the appropriate and necessary information.

There may be a reasonable inference from the deposition testimony and emails

that Turner pressed Clark-Kutscher to perform more billable services like patient

assessments, instead of solely conducting non-billable visits with advanced directives

and POLST forms. But this does not constitute Medicare fraud. If Clark-Kutscher assessed

a patient while also completing an advanced directive or POLST form, the consultation

or progress note could properly be billed for some of those rendered services. Thus, even

if a trier of fact inferred that Turner pushed Clark-Kutscher to increase her billable

services through more assessments, refusing to do so would not qualify as protected

conduct under the FCA. The COVID-19 pandemic undoubtedly reduced Clark-

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Kutscher’s ability to visit with patients in-person and created danger in doing so,

especially with PPE shortages. If Turner expected Clark-Kutscher to assess more patients

within these conditions, though harsh and perhaps foolish, such an expectation would

not constitute Medicare fraud.

Again, even taking all evidence in Clark-Kutscher’s favor, she cannot find

protection under the FCA for retaliation based on her conduct. The record shows, at most,

she refused to document patient interactions through consultation and progress notes.

Such refusal cannot constitute an effort to stop an FCA violation, because if she

documented her patient interactions accurately within either a consultation or progress

note, the content of each note would be assessed independently to determine if billing

codes applied. In fact, when she did document non-billable services in such formats, she

explicitly indicated that she did not meet with the patient face-to-face or that she only

discussed certain topics over the phone, and Wilkins applied a “no charge” code for those

notes. Clark-Kutscher’s belief, given the facts known to her at the time, that Good

Samaritan committed fraud against the government or asked her to do so was not

reasonable. Thus, she fails the objective prong necessary to demonstrate that she engaged

in protected conduct under the FCA.

Accordingly, the Court finds that Clark-Kutscher’s FCA retaliation claim fails as a

matter of law.

b. Illinois Whistleblower Act

The Illinois Whistleblower Act prohibits an employer from retaliating against an

employee for “refusing to participate in an activity that would result in a violation of a

State or federal law, rule, or regulation[.]” 740 ILCS 174/20. Thus, for a cause of action

under the Whistleblower Act, a plaintiff must establish that “(1) he refused to participate

in an activity that would result in a violation of state or federal law, rule, or regulation

and (2) his employer retaliated against him because of that refusal.” Sardiga v. Northern

Trust Co., 948 N.E.2d 652, 656-57 (Ill. App. Ct. 2011).

Here, as with the analysis under the FCA, Clark-Kutscher fails to establish that the

activity she refused—documenting advanced directives, POLST forms, or any other

service within a consultation note or a progress note—would result in a violation of State

of federal law, rule, or regulation. Again, nothing in the record suggests that Turner or

anyone else nudged Clark-Kutscher to misrepresent the content of her patient

interactions within her documentation. Moreover, when Clark-Kutscher drafted patient

care notes that indicated she only spoke on the phone with a patient or family member

and that she did not assess a patient face-to-face, the emails in evidence show that no

violation of State or federal law occurred. Instead, her assigned coder, Wilkins, coded the

interaction as “no charge” in accordance with Medicare standards and federal law.

For these reasons, Clark-Kutscher’s claims under the Illinois Whistleblower Act

also fail as a matter of law.

II. Age Discrimination

a. Age Discrimination in Employment Act (ADEA)

Under the ADEA, workers 40 years of age and older are protected against age-

based employment discrimination. Wrolstad v. Cuna Mutual Ins. Society, 911 F.3d 450, 454

(7th Cir. 2018). The ADEA prohibits employers from discharging “any individual or

Page 17 of 25

otherwise discriminat[ing] against any individual with respect to [his or her]

compensation, terms, conditions, or privileges of employment, because of such

individual’s age.” 29 U.S.C. § 623(a)(1). To substantiate a claim under the ADEA, a

plaintiff must identify facts in evidence that his or her age was the “but-for” cause of the

termination, not only that age was a motivating factor. Wrolstad, 911 F.3d at 454. In other

words, an employee-plaintiff must demonstrate that, but for his or her age, the

termination would not have occurred. Id.

At the summary judgment stage, the principal question is whether the evidence,

as a whole, “would permit a reasonable factfinder to conclude that the plaintiff’s race,

ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse

employment action.” Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016);

Wrolstad, 911 F.3d at 454. Direct and circumstantial evidence are both relevant to this

inquiry. Id. Under the traditional McDonnell Douglas approach, once the plaintiff

establishes a prima facie case of age discrimination, the burden shifts to the employer to

articulate a legitimate, nondiscriminatory reason for the challenged action. Igasaki v.

Illinois Department of Financial and Professional Regulation, 988 F.3d 948, 957, 960 (7th Cir.

2021); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). If the employer

does so, the burden shifts back to the plaintiff to show that the proffered reason was a

pretext for age discrimination. Id.

Altogether, a plaintiff seeking to establish a prima facie case of age discrimination

must show: (1) she was a member of a protected class (age 40 or over), (2) she met her

employer’s legitimate job expectations, (3) she suffered an adverse employment action,

and (4) the employer treated younger, similarly-situated employees more favorably, or

sought to replace her with someone substantially younger. Harris v. Franklin-Williamson

Human Services, Inc., 97 F. Supp. 2d 892, 904-05 (S.D. Ill. 2000); Miller v. Borden, Inc., 168

F.3d 308, 313 (7th Cir. 1999) (“In situations involving the simple termination of a single

employee, normally the employee must establish that the employer sought a younger

replacement for him.”). To be clear, the younger replacement need not be someone outside

the protected class. O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313 (1996).

The ADEA prohibits discrimination on the basis of age, not class membership. Id.

A substantially younger replacement is a far more reliable indicator of age discrimination

than a replacement outside of the protected class. Id. Under O’Connor, a ten-year age

difference is presumptively “substantial.” Harris, 97 F. Supp. 2d at 905.

Here, both parties agree that Clark-Kutscher is a member of a protected class,

satisfying the first element. Good Samaritan argues, however, that Clark-Kutscher cannot

substantiate the second, third, or fourth prongs of a prima facie case. Good Samaritan

asserts that Clark-Kutscher failed to meet its legitimate expectations at the time of her

termination because Turner received several complaints involving Clark-Kutscher’s

inadequate patient care along with Clark-Kutscher’s deficient documentation of patient

interactions. From Good Samaritan’s perspective, Clark-Kutscher resigned, and thus,

cannot demonstrate she suffered an adverse employment action. As to the fourth prong,

Good Samaritan emphasizes that it did not “replace” Clark-Kutscher with a substantially

younger employee, because it filled her former role months later with a recent nurse

practitioner graduate who had more palliative care experience than Clark-Kutscher and

also qualified as a member of the protected class.

On the other hand, Clark-Kutscher argues that she satisfies all elements of a prima

facie case of age discrimination. For the second prong, Clark-Kutscher maintains that she

met the legitimate expectations of Good Samaritan despite the significant hurdles and

unique challenges of the pandemic, and Good Samaritan’s expectations regarding billing

were not legitimate. She also contends that Good Samaritan fired her, as reflected in the

nature of the heated corrective action meetings, internal human resource documents that

describe her termination as an involuntary resignation at the company’s request, and her

refusal to resign. As Good Samaritan replaced her with Jennifer Starr, a substantially

younger employee, Clark-Kutscher argues that the fourth prong is satisfied. Further,

Clark-Kutscher claims that, even if Good Samaritan articulates a legitimate,

nondiscriminatory reason for firing her, it is pretextual considering her prior glowing

performance review, the timing of her discipline, and the rushed nature of the corrective

action process.

Turning first to the third and fourth prongs of a prima facie case, the deposition

testimony of Clark-Kutscher and Carroll establish that the final corrective action meeting

occurred swiftly after the initiation of the disciplinary process, the meeting grew

contentious in nature, the human resources documents labeled the termination as

involuntary resignation, and Clark-Kutscher received two weeks’ pay and

unemployment after departing from Good Samaritan. The record also supports Good

Samaritan’s position that Clark-Kutscher resigned and that the Final Notice of Corrective

Action provided a window for improvement and indicated that the next step might be

termination. This is enough to create a genuine issue of material fact related to whether

she suffered termination or resigned. As to whether Good Samaritan replaced Clark-

Kutscher with a substantially younger employee, a genuine issue of material fact also

exists. Starr, a nurse practitioner about 20 years younger than Clark-Kutscher, eventually

filled Clark-Kutscher’s vacant role. Even though Good Samaritan waited months to hire

a replacement, a reasonable jury could find that Clark-Kutscher was “replaced” by a

substantially younger employee.

For the prong concerning the employer’s legitimate job expectations, the prima

facie case and pretext inquiries often overlap. As such, a court may “skip the analysis of

a plaintiff’s prima facie case and proceed directly to the evaluation of pretext if the

defendant offers a nondiscriminatory explanation for its employment decision.” Benuzzi

v. Board of Education of City of Chicago, 647 F.3d 652, 663 (7th Cir. 2011). Here, Good

Samaritan, while maintaining Clark-Kutscher resigned, offers nondiscriminatory

explanations for the corrective actions issued to Clark-Kutscher near the time of her

departure. Turner received and documented several reports that Clark-Kutscher

exhibited non-compassionate and aggressive behavior towards patients, including

pressuring them to make rash end-of-life decisions dating back to July. Clark-Kutscher

also reportedly refused referrals from physicians for comfort care orders for patients at

discharge, used inappropriate vernacular to describe patient conditions, and failed to

document critical information for use by other hospital staff and her coder.

Clark-Kutscher argues that these nondiscriminatory reasons are pretextual. First,

Clark-Kutscher highlights her prior annual performance review with positive ratings for

exceeding and meeting expectations to demonstrate pretext. Next, she characterizes the

timing of the notices of corrective action as suspicious considering she began complaining

about billing practices in early-September 2020, when the corrective action process

started. Lastly, to show pretext, Clark-Kutscher points out that Good Samaritan

accelerated its disciplinary process as her corrective action notices started at the second

level, she only received a short time to improve her performance, and her termination

occurred within three weeks of her first Notice of Corrective Action.

To substantiate pretext, a plaintiff must show that (a) the proffered

nondiscriminatory rationale for termination was dishonest; and (b) the employer’s true

reason was rooted in prohibited discriminatory intent. Mirocha v. Palos Community

Hospital, 240 F. Supp. 3d 822, 842 (N.D. Ill. 2017). The chief question is whether the

employer honestly believed the reason it offered to explain the discharge, not whether

the employer’s stated reason was inaccurate or unfair. Id. A court’s concern is not that an

employer has been wrong about the employee’s performance or too hard on the

employee, rather to be pretextual, the nondiscriminatory reason must be a lie. Id.; Coleman

v. Donahoe, 667 F.3d 835, 852 (7th Cir. 2012). Pretext can be demonstrated by identifying

weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s asserted

reason so that a reasonable person could find the reason unworthy of credence. Coleman,

667 F.3d at 852-53.

Here, Good Samaritan offered several reasons related to Clark-Kutscher’s job

performance for initiating disciplinary action. Job performance is a legitimate,

nondiscriminatory reason for termination. As such, the burden shifts back to Clark-

Kutscher to demonstrate pretext. The evidence of pretext identified by Clark-Kutscher is

unpersuasive. She responded to the Notice of Corrective Action, which outlined every

reported incident, without denying that most of the incidents happened, but disagreeing

with her supervisor’s characterization of her behavior towards patients and other

hospital staff. Further, Clark-Kutscher’s prior positive annual performance review by a

different manager does not create an inference of pretext. The positive review addressed

her performance in the first several months of her employment, took place pre-pandemic,

which changed the nature of her work and stretched her extraordinarily thin as

acknowledged by Clark-Kutscher, and occurred almost ten months before her

termination. Next, she characterizes the timing of the disciplinary process as suspicious

considering she began complaining about the billing practices in early-September 2020.

The record indicates, however, that Clark-Kutscher received verbal warnings prior to the

written notices. The corrective actions incorporated incidents from as early as July 2020,

and Clark-Kutscher challenged billing practices as early as May 2020, after a phone

meeting with the palliative care team. Lastly, Clark-Kutscher stresses that Good

Samaritan accelerated its disciplinary process. Certainly, veering from standard

procedure could show pretext. But the record indicates that Clark-Kutscher received

verbal counseling about her performance prior to the notices of corrective action, which

demonstrates the process was not as accelerated as she claims. The timeline of the

corrective action process compared to Good Samaritan’s standard procedure, without

more, would not lead a reasonable trier of fact to determine that Good Samaritan’s

reasons for disciplinary action were pretextual. In general, Clark-Kutscher’s arguments

for pretext fail.

Most importantly, and dispositive for this issue, Clark-Kutscher must demonstrate

the true reason for termination was rooted in prohibited discriminatory intent. Clark-

Kutscher has not referenced any evidence that her age was the reason for her termination.

Her pretextual arguments relate to her complaints of fraudulent billing practices, not age

discrimination. In her deposition, Clark-Kutscher cited her refusal to participate in

fraudulent Medicare billing practices as the reason her employment with Good

Samaritan ended. She failed to mention age discrimination, even when questioned

further. Clark-Kutscher does not offer much, if any, evidence or argument specific to age

discrimination.

Considering the evidence at summary judgment, no reasonable factfinder could

conclude that Clark-Kutscher’s age caused her termination. Thus, age cannot be

considered the “but for” cause, let alone any factor, in Clark-Kutscher’s termination.

The Court finds that Clark-Kutscher’s age discrimination claim under the ADEA

fails as a matter of law.

b. Illinois Human Rights Act (IHRA)

Age discrimination allegations under the IHRA are subject to the same analysis

and burden of proof as a suit under the ADEA. Teruggi v. CIT Group/Capital Finance, Inc.,

709 F.3d 654, 659 (7th Cir. 2013); see Zaderaka v. Illinois Human Rights Commission,

545 N.E.2d 684, 687 (Ill. 1989). The analysis provided for the ADEA claim above is

applicable to Clark-Kutscher’s claim under the IHRA. As such, her IHRA claims fail for

the same reasons.

CONCLUSION

For the reasons set forth above, the motion for summary judgment filed by

Defendant Good Samaritan (Doc. 35) is GRANTED. This entire case is DISMISSED with

prejudice. The Court DIRECTS the Clerk’s Office to close this case and enter judgment

accordingly.

IT IS SO ORDERED.

DATED: September 8, 2023

Tawa Mout?

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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