from the District Court of Platte County The Honorable F.
Scott Peasley, Judge
Representing Appellant: C. M. Aron and Brock L. Faulkner of
Aron & Hennig, LLP, Laramie, Wyoming
Representing Appellees: Robert C. Jarosh of Hirst Applegate,
LLP, Cheyenne, Wyoming
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
Trent Kaufman appeals the district court's grant of
summary judgment to Rural Health Development (RHD) on his
retaliatory discharge claim. He contends that genuine issues
of fact precluded summary judgment and that his claim should
proceed to trial. We affirm.
Mr. Kaufman presents two issues on appeal, which he states
Issue 1: Whether the public policy exception to at-will
employment applies to termination of an employee for
submitting a report on elder abuse of a resident that was
required by statute.
Issue 2: Whether the district court erred in making findings
of a disputed material fact precluding summary judgment by
accepting the employer's pretext for termination, and
finding termination "non-retaliatory" and the
Kaufman report "deficient."
In January 2017, the Platte County Hospital Board of Trustees
retained Rural Health Development, Inc. (RHD) to provide
nursing home management services at the Platte County Legacy
Home. Shane Filipi worked for RHD and served as the nursing
home's administrator until May 22, 2017, when RHD hired
Trent Kaufman for that position. Mr. Filipi then became
RHD's western regional manager and Mr. Kaufman's
On June 20, 2017, a resident of the nursing home reported to
Mr. Kaufman that on June 9, 2017, a physical therapist
working at the home threatened her with loss of Medicare
benefits and removal from the home unless she agreed to
undergo a physical therapy assessment and participate in
physical therapy. Mr. Kaufman sent an email to Mr. Filipi
describing the resident's concern and asking, "How
do you suggest I address the situation?" Mr. Filipi
I'm pretty positive that [the resident] made comments
pretty similar in one of her previous stays. I hope I'm
thinking of the same resident. After digging into that
situation there were two other staff members present that
gave different stories than hers that both lined up and
contradicted what she said and that she added a lot of drama
to her story. I would find out what time this happened and
see if there were other staff members around or other
residents that are better historians and see what they have
to say. Let me know what you find out.
The director of nursing spoke with the resident's
attending nurse, who essentially confirmed the resident's
version of the June 9 incident. The director of nursing
instructed the nurse to document the incident using a
grievance form, and that was done. Based on this
corroborating information, Mr. Filipi, Mr. Kaufman, and the
director of nursing all agreed that the incident should be
reported to the State as a potential incident of elder abuse.
Mr. Filipi also discussed the incident with the vice
president of operations for the physical therapist's
employer, and she likewise agreed the incident should be
Mr. Kaufman began work on the report, and while he was
working on it, the director of nursing informed him that Mr.
Filipi was on his way to the nursing home and wished to
review the report before it was submitted. Mr. Kaufman
submitted the report the afternoon of June 20, before Mr.
Filipi had an opportunity to review it. The report included a
copy of the attending nurse's grievance form as well as
cut-and-paste copies of emails exchanged between Mr. Kaufman,
Mr. Filipi, and the director of nursing. In the report's
closing paragraphs, Mr. Kaufman stated, "It was the
consensus of the regional manager, administrator, and
director of nursing that this issue should be reported to the
State of Wyoming as a potential abuse issue."
When Mr. Filipi arrived at the nursing home on June 20, Mr.
Kaufman informed him that he had submitted the report and
provided him with a hard copy of it. Mr. Filipi was upset
that Mr. Kaufman submitted the report without his review. He
was also upset that Mr. Kaufman had included in the report
the cut-and-paste emails exchanged between the two of them
and the director of nursing, that he had not completed the
investigation by interviewing the physical therapist before
submitting the report, that he did not include a corrective
action, and that the report was handwritten rather than
typed. Mr. Filipi then told Mr. Kaufman that the two of them
would work together to complete the investigation and submit
a final report.
On June 21 and 22, Mr. Kaufman was out of state for training.
On the 22nd, Mr. Filipi was at the nursing home to take care
of payroll and accounts payable in Mr. Kaufman's absence.
While he was there, several of the home's department
heads approached him with concerns about Mr. Kaufman's
management of the home. When Mr. Kaufman returned on the
23rd, Mr. Filipi met with him to discuss the concerns that
had been brought to his attention, as well as his concerns
regarding the submission of the abuse report. During this
meeting, Mr. Kaufman asked if he should resign since the
department heads had no faith in him. Mr. Filipi told him no,
but that Mr. Kaufman needed to think about it.
After Mr. Filipi left his office, Mr. Kaufman sent an email
to the department heads, stating, "It has been a
pleasure working with you all and I will miss working with
you all. I am sorry that I did not meet your
expectations." A few minutes later, he sent an email to
Mr. Filipi that stated, "With a lack of support from the
managers and your concerns I am considering this as a
'termination.'" He then left the building.
On June 26, 2017, Mr. Filipi and the director of nursing
submitted a final report to the State concerning the June 9,
2017 incident. The report was signed by both Mr. Filipi and
the director of nursing, and it indicated that the
resident's physician and family had been notified and
that the long term care ombudsman had been
notified. The report summarized the incident, and
stated the nursing home's assessment and proposed
corrective action as follows (bold typeface in original):
Summary: On the afternoon of 6/9/17 [the resident] was
admitted into the facility. [The physical therapist] came in
to do an eval with [the resident]. [The resident] did not
want to participate in therapy. [The attending nurse] was
present in the resident's room for part of the exchange.
It is unclear whether [the physical therapist] told [the
resident] that she would be kicked out/thrown out/discharged
facility/Medicare if she did not participate in therapy. Both
[the resident] and [the physical therapist] apologized to
each other the next day. [The resident] agreed to do an eval
on the 12th and has been participating in therapy
since. [The resident] reported this incident to Administrator
Kaufman on the 20th. [The attending nurse] was
asked on the 20th about the exchange that took
place on the 9th and agreed to fill out a
grievance. [The resident] was admitted directly from the ER
on the 9th and was already anxious from a fall
that took place at her home. [The resident] was sent back
later in the night to hospital due to hypoxia.
Administrative Decision based on evidence provided: [The
physical therapist] should have taken a different approach
and with [the resident's] anxiety and health issues that
evening it would have been in everybody's best interests
to come back the next day.
Corrective Action taken: [The physical therapist] has been
assigned education that will be completed in the next 2 weeks
that covers patients' rights/resident rights, resident
abuse, and diffusing customer complaints. [The physical
therapist's] supervisors will follow up to ensure proper
resident interactions. [The attending nurse] will be educated
on timely reporting of resident grievances.
On September 20, 2017, the State issued a Notice of
Conclusions. The notice indicated that the State had
completed its investigation and had found the allegation of
abuse to be unsubstantiated.
On September 25, 2017, Mr. Kaufman filed a complaint against
RHD and Mr. Filipi, individually and as regional manager of
RFD. The complaint asserted a claim for retaliatory
constructive discharge, and in support alleged:
45. Filipi instructed Kaufman that no report of the elder
abuse incident should be made.
46. Kaufman understood that Filipi was asking him to either
disregard the resident's complaint altogether, or to
minimize it in any reports to the State agencies.
67. Under federal and state legislation and regulation, elder
abuse reporting is mandated, and serves and is an important
and well established public policy to protect elderly and
68. Kaufman was given the choice to comply with the elder
abuse reporting requirements under federal and state law, or
to comply with Filipi's instruction not to file an elder
69. Kaufman reported to the Wyoming Department of Health and
Wyoming Department of Family Services that a vulnerable adult
was being or had been abused, neglected, exploited,
intimidated, or abandoned.
70. After Kaufman made his report, RHD provided Kaufman with
two options as to his employment, to be fired or to resign.
71. Kaufman reasonably believed his discharge was imminent.
72. Kaufman was not given any alternative to resignation.
73. Kaufman understood the only choice he had was to resign,
so as to avoid an involuntary termination report on his
74. Kaufman was not provided any time to make the resignation
decision that Filipi required him to make.
75. Kaufman was not permitted to select the effective date of
76. Kaufman's resignation was involuntary and required by
RHD and Filipi.
77. RHD and Filipi's ultimatum to Kaufman created
intolerable working conditions and required Kaufman's
resignation on June 23.
78. Kaufman's involuntary and forced resignation on June
23 was a constructive discharge.
79. No legitimate reason existed for RHD's constructive
discharge of Kaufman.
80. RHD's explanation to Kaufman for his discharge was
81. Kaufman's elder abuse report was the substantial and
motivating factor for RHD's constructive discharge of
RHD answered the complaint, and Mr. Filipi filed a W.R.C.P.
12(b)(6) motion to dismiss the claims against him, which the
district court granted. On June 25, 2018, RHD moved for
summary judgment, asserting that based on the undisputed
evidence, Mr. Kaufman had no claim that RHD retaliated
against him for his filing of the elder abuse report. On
August 29, 2018, the district court granted RHD's motion,
and Mr. Kaufman thereafter filed a timely notice of appeal to
W.R.C.P. 56 governs summary judgment and imposes obligations
on the movant and nonmovant ...