Not a Lexis Advance subscriber? Try it out for free.

Akers v. Kindred Nursing Ctrs. Ltd. P'ship.

United States District Court for the Southern District of Indiana, Terre Haute Division

May 18, 2004, Decided

2:03-cv-0327 JDT-WGH



Plaintiff, Lynne L. Akers, filed suit [*2]  against Defendant, Kindred Nursing Centers Limited Partnership, d/b/a Southwood Health and Rehabilitation Center ("Southwood"), for disability discrimination and retaliatory discharge under Indiana common law. This matter is before the court on Defendant's Motion to Dismiss Count Two of Plaintiff's Amended Complaint, which alleges retaliatory discharge under Indiana common law. The court decides this matter as follows:

I. Background

Ms. Akers' Amended Complaint alleges the following facts that are relevant to this motion: Southwood is a nursing home, long term care and rehabilitation facility in Terre Haute, Indiana. (Amended Compl. P2.) Ms. Akers is a licensed practical nurse (LPN). Ms. Akers worked briefly for Southwood from January 2002 to March 2002. She was rehired on or about February 11, 2003, and continued to work for Southwood until her employment was terminated on April 18, 2003. (Id. P3.) In a letter to Assistant Director of Nursing Heather Hoffman, dated April 15, 2003, Ms. Akers memorialized her complaint about being asked to serve as the only nurse at Southwood on duty for 140 residents. She explained that she was not able to care for 140 residents by herself [*3]  safely. (Id. P7.) Ms. Akers' employment was terminated almost immediately after she wrote the letter to Ms. Hoffman. According to Ms. Akers, she was terminated in retaliation for refusing to violate nursing laws, regulations, and codes of ethics concerning patient care. (Id. P8.)

In Count Two of the Amended Complaint, Ms. Akers alleges that Southwood terminated Ms. Akers' employment in retaliation for engaging in protected activity. (Id. P24.) Count Two states that "in addition to engaging in activity concerning her rights under the ADA," Ms. Akers told members of Southwood management that she refused to violate the applicable patient care laws which applied to her as a LPN when she refused to work under circumstances in which Southwood was not adequately staffed with enough nurses to care for its 140 patients. (Id.) Ms. Akers reiterated this complaint in writing in her April 15, 2003, letter to Ms. Hoffman and was terminated shortly thereafter. (Id.)

Count Two of the Amended Complaint further provides that Southwood's termination of Ms. Akers' employment was in direct contravention of Ms. Akers' legal and professional duties under § 25-1-9-4 of the Indiana Code [*4]  . (Id. P25.) Ms. Akers claims that Southwood wrongfully discharged her under circumstances in which Ms. Akers would have been legally and professionally responsible and subject to discipline if she had "gone along with Southwood's plan to provide inadequate patient care, through under staffing of required health professionals." (Id.) Ms. Akers made this a specific issue in her letter to Ms. Hoffman. (Id.) Count Two also asserts that such retaliation violates the public policy of the State of Indiana. (Id.)

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

2004 U.S. Dist. LEXIS 13957 *; 2004 WL 1629733


Disposition:  [*1]  Defendant's Partial Motion to Dismiss DENIED.


terminated, public policy exception, unprofessional conduct, public policy, retaliatory discharge, patient, common law, jeopardize, regulating, profession, long term care, retaliation, staffing, argues, nurses, truck, motion to dismiss, employees, licensed, alleges, courts, notify

Civil Procedure, Appeals, Appellate Briefs, Pleadings, Time Limitations, General Overview, Computation of Time, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Labor & Employment Law, Employment Relationships, At Will Employment, Duration of Employment, Exceptions, Tort Exceptions, Public Policy Violations, Wrongful Termination, Public Policy, Workers' Compensation & SSDI, Administrative Proceedings, Claims, Defenses, Misconduct of Employee, Statutory Offenses, Whistleblower Protection Act, Healthcare Law, Business Administration & Organization, Facility & Personnel Licensing, Governments, Legislation, Statutory Remedies & Rights, Remedies