NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0562n.06 No. 17-5025 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT TERESA BLAIR, Plaintiff-Appellant,

v. MAXIM HEALTHCARE SERVICES, INC., Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY

Before: SUHRHEINRICH, GRIFFIN, and KETHLEDGE, Circuit Judges. KETHLEDGE, Circuit Judge. Maxim Healthca re Services, Inc. employed Teresa Blair as a nurse. Maxim fired her afte r a supervisor noted “serious pr oblems” with her performance. Blair sued for wrongful discharge. The district court granted summary judg ment to Maxim. We affirm.
I.
Blair provided in-home medical care to Jord an Cottle, who suffered from cerebral palsy and mental retardation. Cottle re lied on a ventilator and tracheost omy tube to breathe. Maxim’s nurses cared for him 16 hours a day; Cottle’s moth er 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, wh ich she did many times. Beginning in 2009 andNo. 17-5025 Blair v. Maxim Healthcare Services, Inc.

-2- continuing until her termination in 2014, Blair rep eatedly told her superv isors that Cottle’s mother had neglected Jordan ’s care. For instance, Blair complain ed 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 mothe r’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 doc tor; falsely reported that the doctor ha d ordered Cottle qu arantined and that Blair alone care for Cottle while he had the fl u; and attempted to change Cottle’s schedule without her supervis or’s permission. On the morning of December 30, 2013, Blair ar rived to find Cottle in distress. His ventilator was again detached and his tracheostom y tube was on the floor. Blair reattached the tube and removed secretions from his airway. She also tried uns uccessfully to wa ke his sleeping mother. Blair then called her supervisor, Jo di 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 a nd 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 th e hospital staff take ov er, among other things. Sixteen days after Cottle’s release from the hos pital, Susan Nutter—one of Blair’s supervisors and a registered nurse—visited Cottle’s home and noted some “ser ious problems.” Specifically,No. 17-5025 Blair v. Maxim Healthcare Services, Inc.

-3- 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 c ontinuous 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 emergenc y, Blair could use it to help Cottle breathe. Instead, it was in a closet on an upper shel f 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 reporte d these problems to Blai r’s supervisor, Christy Mancuso, and Maxim’s Director of Business Operat ions 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 fe deral court under divers ity jurisdiction, Blair amended her claims to assert that Maxim had di scharged her in violati on 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 wri tten report of the problem to the health care facility[.]” Ky. Rev. Stat. § 216B.165(1) . The Act also pr ohibits any “health care facility or service” from retaliating “against any agent or employee who in good faith reports[.]” Ky. Rev. Stat. § 216B.165(3).No. 17-5025 Blair v. Maxim Healthcare Services, Inc.

-4- To prevail on her claim under the Act, Blair mu st show (i) that she engaged in a protected activity under the Act, (ii) that Maxim knew ab out her protected activity, and (iii) that Maxim took an adverse employment actio n against her because of it. See Colorama, Inc. v. Johnson , 295 S.W.3d 148, 152 (Ky. Ct. App. 2009). We focu s 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 pl aintiff’s “protected activity was the li kely 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 complain t to Ward about Cottle’s condition on December 30, 2013) and her firing 18 days later. But te mporal 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 tim e to a complaint—no matte r when it occurred. Second, Blair’s supervisor told her to “report a ll 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 ar e not enough to allow a reasonable jury to find that one caused the other. Blair contends that a jury could find causa tion 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 th e hospital. And she also says th at a trainee told her that she was going to be fired shortly before she in fact was. But these asse rtions are relevant to pretext,No. 17-5025 Blair v. Maxim Healthcare Services, Inc.

-5- not causation. And pretext is ir relevant here until Blair presen ts 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).
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The district court’s judgment is affirmed.