Hale v. Mercy Health Partners

• Decision Date: 16 May 2014
• Docket Number: Case No. 1:12–CV–742.
• Citation: 20 F.Supp.3d 620
• Court: U.S. District Court — Southern District of Ohio
• Parties: Pam HALE, Plaintiff, v. MERCY HEALTH PARTNERS, Defendant.

20 F.Supp.3d 620

Pam HALE, Plaintiff
v.
MERCY HEALTH PARTNERS, Defendant.

Case No. 1:12–CV–742.

United States District Court, S.D. Ohio, Western Division.

Signed May 16, 2014.

20 F.Supp.3d 624

David Gerard Torchia, Tobias, Torchia, & Simon, Cincinnati, OH, for Plaintiff.

Thomas Joseph Wiencek, Catholic Healthcare Partners, Akron, OH, for Defendant.

OPINION AND ORDER

MICHAEL R. BARRETT, District Judge.

This matter is before the Court on Defendant Mercy Health Partners' Motion

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for Summary Judgment. (Doc. 13). Plaintiff Pam Hale has filed a response in opposition (Doc. 21, 29), and Defendant Mercy Health Partners has filed a reply (Doc. 30). This matter is now ripe for review.

I. FACTUAL OVERVIEW

The basic facts construed in favor of Plaintiff are as follows:

A. General Background

Plaintiff Pam Hale was employed by Defendant Mercy Health Partners from December 1999 until June 14, 2011. (Doc. 22, p. 9; Doc. 13–2). At the time of her termination, she was forty-four years old and employed as a “Buyer.” (Doc. 22, p. 9). She split her time between the Anderson and Clermont hospitals. (Id. ) Her primary responsibilities as a Buyer were to control inventory and to purchase drugs for the Anderson pharmacy. (Id. at 10). In 2010, Clermont recreated the Buyer position and selected Abigail Muchmore, a Pharmacy Tech at Clermont, to take on additional work as a part-time buyer at Clermont. Plaintiff was asked to spend some time at Clermont assisting and training Muchmore in the Buyer role. (Doc. 26, pp. 45–46). By June 2011, Plaintiff spent approximately one day a week at Clermont helping Muchmore. (Id. at 46).

Plaintiff also served as a timekeeper for the Anderson pharmacy in which role she had the ability to edit everyone's time and overtime records. (Doc. 22, p. 60). Other timekeepers for the Pharmacy Department included Muchmore, Donna Branham, and Craig Wright. (Doc. 24, Ex. 22; Doc. 22, pp. 60–61). Timekeepers had access to Defendant's electronic timekeeping system and were responsible for correcting any timekeeping errors by pharmacy employees prior to submitting their time to management for final approval. (Doc. 24, pp. 29–31; Doc. 22, pp. 60–61).

Bill Carroll, the Pharmacy Director, was Plaintiff's supervisor at the time of her termination. (Doc. 22, p. 18). Carroll oversaw the pharmacy operations at both the Anderson and Clermont facilities. He also generally provided the final approval of the timesheets. (Id. at 61–62).

B. Timekeeping Training and Practices

Mercy had a policy that required employees to clock in and clock out using the phone system. (Doc. 22, pp. 46–47). Plaintiff testified that the Pharmacy Department had an oral policy that was different. (Id. at 47). Plaintiff first was trained on recording her time in or around 2000 or 2001 by a former Pharmacy Buyer at Mercy Clermont. (Id. ) Based on that training, Plaintiff believed it was acceptable to manually enter and edit her time in the computerized system. (Id. ) To keep track of her time, Plaintiff made notes of her starting and ending times, and generally would enter several days of time at once. (Id. at 89–90, 92–93; Doc. 21–1, ¶ 7). Plaintiff also would add or change time due to working off-site, taking calls at home, or otherwise working from home. (Doc. 22, pp. 90–94).

In or about April 2008, Plaintiff attended a training session concerning time-keeping practices. (Doc. 22–12; Doc. 22–13). The presentation for that training session contains, among other things, the following statements:

• “Timekeepers have a responsibility to try to make sure that the timecards are correct and accurately reflect the time worked by each employee. If there are missed punches, the timekeepers should attempt to resolve them. If an employee is not clocking correctly, this should be reported

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to a manager, so the employee can be properly instructed.” (Doc. 22–13, p. 6).

• “Timekeepers may not edit timecards to change punches, delete punches, remove overtime, or in any other way change the timecard to change the time actually worked by the employee.” (Id. at 7).

• “Timekeepers should never, even if the employee says it's okay, reduce the hours on an employee's time card to avoid overtime. This is true even if the reduction is as small as five minutes.” (Id. )

• “Overtime must be paid to employees who work, even if it was not authorized or approved by Management staff. Unauthorized overtime must be handled through corrective action, not through adjustments to an employee's timecard.” (Id. )

• “A timekeeper falsifying or tampering with employees' timecards can create significant legal problems for the Hospital and can be a reason for a timekeeper's corrective action and/or termination.” (Id. )

• “When in doubt, check with Human Resources before deleting! ” (Id. )

C. June 10, 2011 Conversations with DEA

At approximately 11:00 a.m. on June 10, 2011, Plaintiff spoke with a representative from the Drug Enforcement Agency (“DEA”). (Doc. 22, pp. 105–06; Doc. 21–1, ¶ 9). During that phone call, the DEA agent asked Plaintiff about Mercy Clermont's record-keeping practices for drugs that were being used at a satellite facility in Mt. Orab. (Doc. 22, pp. 105–06, 115–16). Plaintiff informed the agent that she was properly verifying the invoices with the required DEA form, but that she could not attest to whether everyone else was doing so. (Id. at 108–09). Although Plaintiff believed that Muchmore, the Clermont Buyer, was inappropriately completing the documentation, she did not inform anyone of her belief. (Id. at 109).¹ After the phone call, she informed Carroll that the DEA had called. (Id. at 109, 115). She did not directly tell him why the DEA had contacted her, but informed him that they were checking on the Mt. Orab situation. (Id. at 115). Other than the conversation with Carroll, Plaintiff did not inform anyone at Defendant of the phone call or that she was participating in any investigation by the DEA or any other regulatory body. (Id. at 114–15).

Carroll testified that Plaintiff informed him that the DEA had called that morning. (Doc. 26, p. 53). According to Carroll, Plaintiff indicated that she did not know what the DEA wanted but thought it related to the DEA 222 Forms being incomplete. (Id. ) Carroll returned the DEA agent's phone call. (Id. ) Several weeks later, Carroll's boss called him after receiving a call himself from the DEA agent. (Id. at 54). At that time, Carroll explained to his boss that the DEA wanted to make sure that the Mercy Hospitals knew how to properly fill in DEA paperwork. (Id. at 54). Carroll testified that Plaintiff's name was never mentioned during any conversation between the DEA agent and Carroll, or in any subsequent conversation about the DEA 222 Form. (Id. at 55–56). Carroll does not recall ever discussing the DEA issue with Clermont's Chief Executive Officer Gail Heintzelman. (Id. at 56).

D. June 10, 2014 Timecard Audit

According to Defendant, Heintzelman met with Mark Holmes, a pharmacist at

20 F.Supp.3d 627

Clermont, at 10:00 a.m. on June 10, 2011. (Doc. 25, pp. 9–10). Heintzelman testified that Holmes had an inventory issue and he was unable to reach Plaintiff using the contact information she had available. (Id. at 11). Heintzelman testified that Holmes contacted her because Carroll, Plaintiff's supervisor, was unavailable. (Id. at 10).

Heintzelman testified that her response to Holmes was to contact Laura Gaynor, the Clermont Human Resources Consultant, and order an audit of Plaintiff's clock-in and clock-out times to see how much time Plaintiff was spending at the respective hospital locations. (Id. at 11–12). The documentation indicates that the timecard audit was executed on June 10, 2011 at 12:04 p.m. (Doc. 13–9). At 2:34 p.m. on June 10, 2014, Gaynor emailed Heintzelman to indicate that she and the Human Resources Coordinator reviewed the timecard audit of Plaintiff, which was “very interesting.” (Doc. 24, pp. 40–42; Doc. 24–1). Gaynor testified that it was an email from Holmes to Heintzelman that was sent at 4:39 p.m. on June 10, 2011, and which was later forwarded to Gaynor, that formed the basis of the audit request. (Doc. 24, p. 54; Doc. 24–4).

At 5:17 p.m. on June 10, 2011, Gaynor emailed Shelly Sherman, the Human Resources Director, concerning timekeeping issues involving Plaintiff, which she identified as follows:

• “Although she is supposed to be at Clermont at least 40 hours per pay period, “[s]he has only been averaging 16 hours of time per pay period [at Clermont] but [it is] hard to determine because she never clocks in/out.” (Doc. 24–2).

• “Not clocking in/out at all

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