Bereston v. UHS of Del., Inc., 15–CV–244

• Decision Date: 08 March 2018
• Docket Number: No. 15–CV–244,15–CV–244
• Citation: 180 A.3d 95
• Parties: Katayoon BERESTON, Appellant, v. UHS OF DELAWARE, INC. and District Hospital Partners, LP, d/b/a George Washington University Hospital, Appellees.
• Court: D.C. Court of Appeals

180 A.3d 95

Katayoon BERESTON, Appellant,

v.UHS OF DELAWARE, INC. and District Hospital Partners, LP, d/b/a George Washington University Hospital, Appellees.

No. 15–CV–244

District of Columbia Court of Appeals.

Argued December 10, 2015

Decided March 8, 2018

Keith Lively, with whom Andre P. Barlow, Washington, was on the brief, for appellant.

Alan S. Block, with whom Nadia A. Patel, Washington, was on the brief, for appellees.

Before Glickman and McLeese, Associate Judges, and Ferren, Senior Judge.

Concurring opinion by Senior Judge Ferren at page 115.

Opinion by Associate Judge McLeese, concurring in part and dissenting in part, at page 117.

Glickman, Associate Judge:

Katayoon Bereston appeals the dismissal of her complaint under Superior Court Civil Rule 12 (b)(6) for failure to state a claim upon which relief can be granted. At issue are two counts in which Ms. Bereston invoked the District of Columbia's judicially-created public policy exception to the doctrine of at-will employment. In the first count, Ms. Bereston asserted that George Washington University Hospital ("the Hospital") wrongfully terminated her employment as its Director of Admissions due to her refusal to violate federal law. In the second count, Ms. Bereston complained that she was subjected to harassment at the Hospital prior to her termination in retaliation for her insistence on strict compliance with federal health care laws and regulations.

Although an at-will employee who is discharged for refusing to violate the law (or for other reasons that transgress a clear mandate of public policy) may have a common-law cause of action for wrongful termination, we affirm the dismissal of Ms. Bereston's claims. We hold that the first count of her complaint fails to plead facts sufficient to state a plausible claim that Ms. Bereston's refusal to break the law was the sole or predominant reason for her firing. As to the second count, Ms. Bereston concedes that it does not state a cognizable claim under current law. Although this court has held that termination of employment in contravention of public policy may be actionable, we have not extended that holding to adverse employment actions other than termination. Ms. Bereston urges us to expand the public-policy exception to the at-will employment doctrine so as to permit claims "where the employee has been harassed, retaliated against, and suffered other adverse employment actions short of termination for conduct in furtherance of public policy."¹ Even if this court might consider undertaking that task without legislative direction, however, this is not an appropriate case in which to do so, because Ms. Bereston's complaint fails to plead facts sufficient to state a plausible claim of actionable harassment or retaliation prior to her discharge.

I.

Before summarizing the allegations in Ms. Bereston's complaint, we set forth the standards under which we will evaluate their sufficiency. We review de novo a trial court's dismissal of a complaint for failure to state a claim upon which relief can be granted.² "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ "³ The "[f]actual allegations must be enough to raise a right to relief above the speculative level"⁴ :

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully.... Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of ‘entitlement to relief.’ "^{[5 ]}

"When there are well-pleaded factual allegations, a court should assume their veracity[,]"⁶ but that tenet does not extend to "a legal conclusion couched as a factual allegation[.]"⁷ "Bare allegations of wrongdoing that ‘are no more than conclusions are not entitled to the assumption of truth,’ and are insufficient to sustain a complaint."⁸ In Twombly , for example, considering a complaint charging a violation of the antitrust laws, the Supreme Court held that the plaintiff's mere assertion that the defendants had entered into an unlawful agreement to prevent competition and inflate prices was a conclusory allegation not entitled to the benefit of the assumption of truthfulness.⁹ Importantly, for present purposes, the Supreme Court made clear in Iqbal that allegations of motive, animus, purpose, knowledge, intent and the like are subject to the requirement that they must be supported by well-pleaded factual allegations in order to be accorded the presumption of veracity.¹⁰ The same holds true for conclusory assertions of retaliation, intimidation, harassment, and other forms of hostility.¹¹

II.

Ms. Bereston's complaint presents the facts underlying her claims as follows.

The Hospital hired Ms. Bereston on October 3, 2011, to serve as its Director of Admissions. Her duties in this position included "ensuring" that the Hospital complied with laws and regulations affecting its operations. On several occasions, as the complaint details and we shall describe, Ms. Bereston called attention to improper practices that could have exposed the Hospital to significant legal and financial liability. Her successful insistence on changing those practices allegedly alienated staff and physicians, and while her superiors agreed to the changes, they found fault with Ms. Bereston's rigorous performance of this aspect of her job. The discontent and hostility that Ms. Bereston encountered is the subject of the second count of her complaint (for retaliatory harassment). It also set the stage for the Hospital's ultimate decision to terminate Ms. Bereston's employment after a physician threatened to leave the Hospital because of her adamant refusal to satisfy a long-standing request for additional staffing—a refusal based on Ms. Bereston's belief that granting the request would jeopardize the privacy of patient health information in violation of the federal Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). Ms. Bereston's termination is the subject of the first count of her complaint (for wrongful discharge).

Ms. Bereston's compliance-related difficulties at the Hospital allegedly began at the outset of her two-year tenure as Director of Admissions, in October 2011, when she found that Emergency Room patients were being asked how they would pay for treatment before they were screened by a triage nurse. Understanding this practice to be in violation of the federal Emergency Medical Treatment and Active Labor Act ("EMTALA"),¹² Ms. Bereston "immediately" changed the process to comply with the law by moving admissions staff into the treatment area and implementing "bedside registration." In early 2013, Ms. Bereston persuaded the Hospital to stop admitting overflow medical and surgical patients into the acute rehabilitation unit in violation, as she understood, of regulations promulgated by the federal Centers for Medicare and Medicaid Services ("CMS"). In the summer of 2013, Ms. Bereston asserted that the so-called "Stark Law"¹³ prohibited the Hospital's collection of copayments on behalf of physicians who referred Medicare and Medicaid patients to it. Although the affected physicians were displeased, the Hospital agreed to cease that practice. Throughout her tenure, moreover, Ms. Bereston was "vigilant in identifying situations where potential HIPAA violations could arise" and "made sure her staff and appropriate personnel were informed, updated regularly and trained on HIPAA law and regulations[.]"¹⁴

Instead of receiving support and appreciation for her efforts, Ms. Bereston alleges that she encountered opposition and hostility. When Ms. Bereston reported the changes she had made to the Emergency Room admissions process to comply with EMTALA to Rick Davis, the Hospital's Chief Financial Officer and her supervisor at the time, he initially disagreed with them and thought them unnecessary. However, Mr. Davis "reluctantly agreed" to the changes after the Hospital's Director of Risk confirmed that Ms. Bereston was correct. Even so, unhappy members of the admitting staff, who "wanted to do things the way they had always been done," allegedly "called Ms. Bereston names, made remarks about her race, and were openly insubordinate"; one of them "screamed in her face" when she tried to explain the new procedures.

In March 2012, Mr. Davis convened a meeting of the Hospital's entire admissions staff. The meeting provided an opportunity for staff to "voice their frustration" with Ms. Bereston and her disruption of their work routine; she "was forced to listen to a long list of frivolous and petty complaints" from admissions staff who "condemned her for being mean and difficult to approach." After the meeting, Mr. Davis took Ms. Bereston aside and "told her one-on-one that she needed to be more friendly and ‘to ease up on the regulations.’ "¹⁵

Ms. Bereston perceived that her subsequent efforts to bring the Hospital into compliance with federal laws and regulations were also unpopular; the complaint alleges in general terms that Ms. Bereston was treated with hostility and "bullied and ridiculed by both staff and her superiors[,]" but it provides few if any specifics to substantiate that she suffered such treatment or that her superiors opposed the changes she recommended. In addition to what has been quoted already in this opinion, the complaint states only that when Ms. Bereston advised Hospital officials of the "Stark Law" violation, "an associate administrator ... ridiculed [her] for not spelling the name of the law correctly in an email," and Mr. Davis admonished her for spelling and grammar mistakes.

Ms. Bereston also alleges that she "sought...