Hoffman v. Providence Health & Servs. - Wash.

• Decision Date: 23 May 2023
• Docket Number: 38833-6-III
• Parties: MARK R. HOFFMAN, Appellant, v. PROVIDENCE HEALTH & SERVICES - WASHINGTON, a Washington State Nonprofit Corporation, dba Providence Medical Group, Respondent.
• Court: Washington Court of Appeals

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MARK R. HOFFMAN, Appellant, v. PROVIDENCE HEALTH & SERVICES - WASHINGTON, a Washington State Nonprofit Corporation, dba Providence Medical Group, Respondent.

No. 38833-6-III

Court of Appeals of Washington, Division 3

May 23, 2023

UNPUBLISHED OPINION

SIDDOWAY, J.

Mark Hoffman, M.D., appeals the summary judgment dismissal of his lawsuit alleging wrongful termination of his employment by Providence Health & Services - Washington (Providence). His specific assignments of error are to the dismissal of his claims for wrongful termination in violation of public policy, disability discrimination, and failure to accommodate his disability.

Dr Hoffman failed to present evidence that retaliation, or discrimination based on his allergies, was a substantial factor in Providence management's decision to terminate his employment. We affirm.

FACTS AND PROCEDURAL BACKGROUND

Because this case was resolved by summary judgment, the facts we recount come from the declarations, depositions, and documents the parties submitted in connection with their cross motions for judgment as a matter of law.

In the beginning of 2020, Therese (Teri) Etherton was working as a practice manager for Providence in Spokane, overseeing its three urgent care clinics, when medical providers began closely following developing information on a potential global pandemic from COVID-19 (coronavirus 2019). By the beginning of February, personnel at Providence's urgent care centers were screening and following protocols for patients who had recently traveled to China or had close contact with persons suspected of having contracted the virus. On Wednesday, February 5, Ms. Etherton sent an e-mail to staff advising them that she had updated the travel questions on the workflow Providence had created for patients. She expressed concern about sending patients away without being seen and asked personnel to check with her or the charge nurse before taking that step.

Dr Mark Hoffman was employed by Providence as a physician at its urgent care centers, assigned to its Spokane Valley (Valley) clinic. He is a board-certified physician who has practiced medicine for over 30 years. He was occasionally assigned to work at Providence's two other urgent care centers, the North clinic and South clinic. On the early afternoon of Sunday, February 9, 2020, Dr. Hoffman, having reviewed Ms Etherton's e-mail from a few days earlier, sent a response to her and staff via "Reply All."

His e-mail began, "I am sorry for being the rust that makes the squeaky wheel. But I must disagree with this policy." Clerk's Papers (CP) at 298. He recounted his experience with the 2009 H1N1 virus^[1] and the process followed by the medical group with which he was associated at that time. (Dr. Hoffman had become employed by Providence in 2014.) His e-mail continued (spelling and punctuation in original):

We are dealing with a novel virus. That could potentially put all of our staff and patients at risk in the urgent care setting. We do not have the ability here to truly isolate a patient. We do not have showers to use immediately after seeing the patient. We do not have the ability to decontaminate the waiting room or urgent care, in a timely manor. There are potently to many people who could enter the room to contain the virus to the room safely.

From a strictly financial/legal standpoint. Some simple question's for you.

Would you go to an urgent care when it came out in the news that day that they saw a coronavirus patient in the urgent care? All of us would probably say yes. The general public will probably say no. Are you prepared to deal with the legal issues of death, or significant illness to a care provider exposed in a setting not set up to deal with a novel virus?

The workman compensation issues here are significant. The OSHA [Occupational Health and Safety Act of 1970] issues are significant. And the risks to our patient's and staff issues our significant.

CP at 298. Dr. Hoffman then identified facilities and training "[w]e need to have." Id. Short of that, he "recommend[ed] the simple method outlined" as followed by his group in the H1N1 era. Id. at 299.

According to Dr. Hoffman, soon after he sent the e-mail, his supervisor, Dr. Michael Ravelo, called him "aggressively angry." CP at 76. Dr. Hoffman alleges that Dr. Ravelo told him he had no right to send the e-mail and said he "would pay for sending that email." CP at 328. Dr. Hoffman claims he offered to send a retraction because the e-mail "was absolutely not meant to go to everyone," but Dr. Ravelo said that under no circumstances was Dr. Hoffman to communicate any further about it. CP at 76. Dr. Ravelo said he would handle it.

Dr Hoffman contends that the next day, Dr. Ravelo approached him in person and again told him "[he] would pay" and Dr. Ravelo would "'take [him] down' for th[e] email." CP at 328.^[2]

On Tuesday morning, February 11, Dr. Ravelo sent his own e-mail to Dr. Hoffman and Ms. Etherton with copies to staff who had received Dr. Hoffman's "Reply All" e-mail. It stated,

Thank you for your input. In the future please direct input to myself and we will coordinate any changes as necessary. In the attempt to continue to streamline our care and workflow we will gracefully disregard this commentary as we have decided as a group to continue the process as it was agreed upon by our multi-disciplinary team.

Again there will be NO CHANGES to our workflow.

CP at 297.

Ms. Etherton later testified that on first seeing Dr. Hoffman's e-mail, "I didn't understand why he sent it to the group that he did, so it kind of bugged me a little bit," since "[i]t made us look like we didn't know what we were doing." CP at 392, 394. But Dr. Hoffman recalls that when he approached Ms. Etherton the day after sending the email to apologize for copying everyone, she told him not to worry about it, and that she had made the same mistake many times. She also told him he'd "[made] some very good points." CP at 67.

A little more than three weeks later, several employees at the Valley clinic reported to Ms. Etherton that at the end of the shift on March 3, 2020, they had seen Dr. Hoffman leave with his arms and backpack full of boxes of face masks from the clinic. Obtaining adequate personal protective equipment was difficult at the time, according to Ms. Etherton:

[I]t was just a horrible time. We could not get supplies. The girls were wearing the simple paper mask for⎯you know, at least all day, sometimes two days until they were visibly so ill. That was our pushing through it at that point and the 95 masks were a little hard to find, and they would wear those for a week until they couldn't stand it any longer. So the thought of somebody removing them from the site was very emotional, and I could just read it in their eyes that they felt betrayed.

CP at 129.

Ms. Etherton asked the employees to provide her with written reports of what they had seen, and she received two e-mails on the afternoon of Thursday, March 5. Danielle Paradiso, a medical assistant, wrote:

On 3/3/20 Dr. Mark Hoffman was seen taking procedures masks from the UC [Urgent Care]. He had his bag full and an arm full of boxes of these masks, seen by me Danielle Paradiso, Ryan Taylor and Susie Linderman.

Thank you,

Danielle Paradiso

CP at 293. Ryan Taylor, also a medical assistant, wrote:

Hi Teri- As requested, here is what I witness [sic] several nights ago regarding Dr. Hoffman. Please let me know if you need any further detail.

I witnessed Dr. Hoffman "setting aside" upwards of 6-8 boxes (one arm-full, and in his personal bag) of our yellow procedure masks, stating that they were ordered for him specifically, as he has an "anaphylactic" type reaction when he wears the less expensive versions that central supply stocks. I was under the assumption that the "upgraded" masks were for ALL staff use, not just Dr. Hoffman?

Thank you...

Ryan

CP at 289.

Ordinarily, the first person Ms. Etherton would have contacted about the complaints was Dr. Ravelo, but he was out of town, so she notified Cora Kinney, her Human Resources (H.R.) contact at Providence. Ms. Etherton had a COVID planning meeting set for that afternoon with Providence's chief operating officer for Spokane, Kathy Tarcon, and its chief medical officer, Dr. Mike Marshall, and she reported the allegations to them as well. According to Ms. Etherton, H.R., Ms. Tarcon, and Dr. Marshall assumed responsibility for addressing the issue. Ms. Etherton was notified on Friday, March 6, that Dr. Hoffman would be informed he was being placed on administrative leave. Drs. Robert Litchfield and David Page placed him on administrative leave that day.

The complaints were brought to the attention of Juliet Gerling, the chief H.R. officer for Providence's Eastern Washington, Montana Physician Enterprise, who assigned Lourie Morse to investigate. Ms. Morse is employed by Providence as an H.R. consultant, has over 30 years of H.R. experience, and is tasked with investigating "more complex" employment issues, including issues that might result in litigation. CP at 172.

Between March 11 and March 13, Ms. Morse interviewed Ms. Paradiso and Mr. Taylor, Dr. Hoffman, and four other witnesses. Dr. Hoffman claims that it was only on being contacted by Ms. Morse that he first learned why he had been placed on administrative leave the prior Friday. She prepared a report on March 18 that summarized her interviews and reflected her finding.

She interviewed Mr. Taylor on March 11, and he repeated the substance of his e-mail to Ms. Etherton. He said that he saw Dr. Hoffman leaving with the masks at approximately 7:45 or 8:00 p.m. on March 3. He said he did not confront Dr. Hoffman, but thought the doctor's actions were unusual.

Ms....