Dunlap v. Imaging Assocs.
| Decision Date | 20 September 2019 |
| Docket Number | Case No. 3:14-cv-00143-TMB |
| Parties | GREGORY DUNLAP, Plaintiff, v. IMAGING ASSOCIATES, LLC, et al. Defendants. |
| Court | U.S. District Court — District of Alaska |
ORDER ON MOTION FOR SUMMARY JUDGMENT (DKT. 241); MOTION TO STRIKE (DKT. 215)
The matter is before the Court on the Motion for Summary Judgment (the "Motion") by Defendant Imaging Associates, LLC ("Imaging Associates").1 Imaging Associates seeks summary judgment on the two remaining claims at issue: Plaintiff Gregory Dunlap's claim under 31 U.S.C. § 3730(h) for retaliatory discharge in violation of the False Claims Act, and his claim for breach of the covenant of good faith and fair dealing implied in employment contracts under Alaska law.2 The Motion is fully briefed,3 and the Court heard oral argument on August 7, 2019.4 Also before the Court is Dunlap's Motion to Strike, which has been fully briefed.5 For the reasons explained below, the Motion for Summary Judgment is GRANTED and the Motion to Strike is DENIED AS MOOT.
In its present form, this case involves an employment dispute between Dunlap and his former employer, Imaging Associates, for whom Dunlap worked between October 2012 and his termination on August 13, 2014.6 While the basic facts are not disputed, the parties offer competing narratives regarding Dunlap's tenure and the difficulties that emerged during his time at Imaging Associates. The Court summarizes the background facts and timeline first.
Imaging Associates is a radiology practice based in Alaska offering diagnostic and medical imaging services.7 Imaging Associates is jointly owned and managed by Interventional and Diagnostic Radiology Consultants, LLC ("IRDC") and the Providence Alaska Medical Center ("Providence").8 Under an exclusive agreement, Imaging Associates receives physician services from Alaska Radiology Associates, Inc. ("ARA"), a physician-owned professional corporation.9 During the relevant time period, Dr. Christopher Kottra, Dr. Chakri Inampudi, Dr. Christopher Reed, Dr. Leonard Sisk, Dr. Heather Tauschek, and Dr. Kelly Powers Williamson were all ARA physicians working at Imaging Associates.10 Drs. Kottra and Inampudi—both of whom wereoriginally named as defendants in the Second Amended Complaint, but against whom no claims remain—each served as Medical Director of Imaging Associates during a portion of Dunlap's tenure.11 In addition to oversight from a board of directors, Imaging Associates is managed by a CEO, a position occupied by J. Keith Radecic for the bulk of Dunlap's tenure until Ward Hinger took over as CEO in August 2014 following Radecic's resignation.12
Imaging Associates hired Dunlap as Director of Anchorage Facilities in October 2012.13 Approximately two months later, in December 2012, Dunlap became Director of Operations14 for all four of Imaging Associates' facilities.15 In this role, Dunlap's duties included "overseeing daily operations;" "[a]ssisting [the] CEO in preparing [the] annual budget and capital requirements;" "monitoring monthly income statements;" "[d]eveloping, modifying, and implementing patient care standards, policies, procedures, protocol, and education programs in order to meet patient careand staff needs;" "[r]eporting and evaluating compliance concerns to ensure services were delivered properly and cost-effectively;" and other oversight duties.16 Dunlap was also responsible for training and supervising Imaging Associates' staff.17 Critically, for purposes of this suit, Dunlap's job duties encompassed reporting and evaluating compliance concerns, and reporting and investigating any fraud.18
During the time he was Director of Operations, Dunlap reported to both Imaging Associates' CEO and to the ARA physicians working at Imaging Associates (the "Imaging Associates Physicians").19 Dunlap asserts that, beginning in early 2013, he observed numerous practices at Imaging Associates that raised compliance concerns, and contends that he expressed these concerns to Radecic and to some of the Imaging Associates Physicians.20 Imaging Associates does not dispute that Dunlap raised certain concerns; in fact, Imaging Associates hired auditors to investigate certain compliance concerns during the summer of 2013.21
It is also undisputed that, from spring 2013 through his termination, staff and physicians at Imaging Associates became dissatisfied with Dunlap's performance.22 Radecic—who at the time was Dunlap's supervisor and Imaging Associates' CEO—testified that he first became aware of concerns regarding Dunlap's performance during spring 2013, but was initially lenient with Dunlap and "cut him slack" because of both his own management style and because of stressful events in Dunlap's personal life.23 Dunlap does not dispute this; in fact, Dunlap recalls Radecic telling him, sometime in April 2013, that he was "going to have trouble" if his performance did not improve.24
Despite Radecic's counseling, Dunlap's performance issues did not resolve. Ultimately, Drs. Inampudi, Kottra, and Reed all requested that Radecic terminate Dunlap's employment; this push became particularly strong by the spring of 2014.25 By March 2014, even Radecic's support had eroded, with Radecic conceding to Dr. Inampudi, "I have been a supporter for a long time, butit's really starting to wane," and stating that while Dunlap "still has some good points," that aspects of his performance had become "completely unacceptable."26
In April 2014, Radecic informed Dr. Inampudi of his decision to terminate Dunlap.27 Radecic directed Debra Terry, the Administrative Director and staff member responsible for human resources issues, reached out to The Human Resources Umbrella, LLC ("HR Umbrella"), a human resources consulting firm, to begin a confidential search for a new Director of Operations.28 On May 1, 2014, Radecic signed an engagement letter with HR Umbrella to formally begin that process.29
However, a number of events during April and May of 2014 complicated this timeline and process. First, in April 2014, Imaging Associates transitioned to a new picture archival and communication system ("PACS"), the digital system used for storing and sharing patient images.30 When the new PACS system went live on April 2, 2014, the transition—which Dunlap played a role in organizing and managing—was riddled with problems that lasted into May of 2014.31
In the midst of the PACS transition, on April 22 and 24, 2014, Dunlap called a compliance hotline, the Providence Health and Services Hotline, maintained by Providence Hospital (the "Providence Integrity Line") and reported concerns about certain practices at Imaging Associates.32 Shortly thereafter, in early May 2014, Stephanie "Stevi" Morton, an Imaging Associates' board member, followed up with Dunlap, and he described his specific concerns.33 On May 14, 2014, Radecic met with Morton and learned that an anonymous caller had raised concerns about Imaging Associates.34
As a result of the call, Imaging Associates retained HR Umbrella to investigate the allegations.35 HR Umbrella interviewed eighteen employees, including Dunlap, over a twelve day period in June 2014.36 On June 30, 2014, HR Umbrella issued a final report summarizing its findings, which was then shared with the Imaging Associates Physicians, management, and boardmembers.37 The report concluded that "the CEO and Medical Director were aware of the issues and addressed each of those raised in the complaint at some time in the past,"38 and HR Umbrella's recommendations were limited to suggestions for Imaging Associates to improve employee HR resources and training.39
Dunlap's anonymity was maintained throughout this process. Moran did not reveal Dunlap's identity as the Providence Integrity Line caller until after Dunlap's termination.40 No evidence suggests that any of the Imaging Associates Physicians were aware of Dunlap's identity as the Providence Integrity Line Caller. Dr. Reed stated that he did not know who the Providence Integrity complainant was; and Dunlap stated that he did not know if Dr. Reed identified him as the caller.41 Dr. Inampudi similarly indicated that he did not know the identity of the caller.42 However, upon receipt of the HR Umbrella report, Radecic testified that he deduced the identity of the caller, and that because of this, he stopped the search for Dunlap's replacement.43
Dunlap filed this suit—initially under seal as a qui tam action—on July 24, 2014.44 Dunlap admits that no one at Imaging Associates knew he had filed this suit at the time of his termination.45
In early May of 2014, Radecic announced to Imaging Associates that he would be stepping down as CEO.46 The transition to a new CEO occurred in early August 2014, when Hinger took over from Radecic as CEO of Imaging Associates.47 During his first week on the job, Hinger requested that Terry schedule meetings with staff, physicians, and management at Imaging Associates to bring him up to speed on the organization.48 Dunlap was scheduled to be on vacation during Hinger's first week but nonetheless came to the office on August 1, 2014 for a meeting with Hinger.49 Dunlap asserts that their meeting lasted nearly eight hours, during which he relayed his compliance concerns to Hinger and informed Hinger that he was the Providence Integrity Line caller.50 Hinger does not recall Dunlap disclosing his identity as the Providence Integrity Line caller during the August 1, 2014 meeting; however, for purposes of summary judgment the Courtaccepts Dunlap's assertion that Hinger knew he was the Providence Integrity Line caller as of August 1, 2014.51
Hinger testified that when he took over, Radecic, Dr. Inampudi, and the "other physician leaders," were "very concerned about [Dunlap's] performance."52 Hinger requested "some time to evaluate and do my own...
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