Kovatovich v. K-Mart Corp.

CourtUnited States District Courts. 8th Circuit. United States District Court of Minnesota
Citation88 F.Supp.2d 975
Docket NumberNo. 98-1615 RLE.,98-1615 RLE.
PartiesFrances KOVATOVICH, Plaintiff, v. K-MART CORPORATION, Defendant.
Decision Date29 December 1999
88 F.Supp.2d 975
Frances KOVATOVICH, Plaintiff,
No. 98-1615 RLE.
United States District Court, D. Minnesota.
December 29, 1999.

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R. Thomas Torgerson, Duluth, MN, for Plaintiff.

Matthew E. Klein, Minneapolis, MN, for Defendant.


ERICKSON, United States Magistrate Judge.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(b)(1)(C), upon the Motion of the Defendant for Partial Summary Judgment. A Hearing on the Motion was conducted on September 23, 1999, at which time the Plaintiff appeared by R. Thomas Torgerson, Esq., and the Defendant appeared by Matthew E. Klein, Esq.

For reasons which follow, we grant the Defendant's Motion for Partial Summary Judgment in part.

II. Factual and Procedural History

The Plaintiff, a 46-year old female pharmacist, began work as a K-Mart pharmacy manager in Virginia, Minnesota, in 1990. In February of 1998, the Plaintiff was terminated from her position at K-mart for an alleged breach of patient confidentiality. See, Defendant Ex. 4. While employed, the Plaintiff was subject to the supervision and evaluation by the store manager, Michael Brown ("Brown"). See, Deposition of Michael

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Brown, at 14-17. Additionally, the Plaintiff was subject to the direct supervision of the K-Mart district pharmacy manager, who traveled between stores located throughout the area. See, Deposition of Brett McCabe, at 5-8. The last such manager, with whom the Plaintiff dealt, was Brett McCabe ("McCabe"). Id.

The basis for the Plaintiff's discharge revolves around a sequence of events which led to the Plaintiff's disclosure, to a third party, of the attempts of Linda Frame ("Frame"), who is a K-Mart Human Resource Manager, to become pregnant through artificial insemination. See, Deposition of Linda Frame, at 24-25. Around the time of the Plaintiff's disclosure, Frame discussed, with several fellow K-mart employees, and close friends, her attempts to become pregnant. Id. at 15-16, 25-26. Frame also disclosed her plan to employ artificial insemination with these same individuals. See, Deposition of Heidi Schley, at 10-13. Apparently, Frame discussed these plans with a variety of friends and coworkers, at K-Mart, and in public. At no time, had Frame requested that the information be kept confidential. Id. at 14-15.

One person, with whom Frame discussed her plans, was Heidi Schley ("Schley"), who also was employed by K-Mart. Subsequently, in January of 1997, Schley paid a social visit to Kovatovich at her home. During the ensuing conversation, Schley disclosed to the Plaintiff Frame's plan to employ artificial insemination to become pregnant. See, Schley Dep. at 15-17; Deposition of Frances Kovatovich, at 69-75. Further, according to the Plaintiff, Schley did not tell her that this information was confidential, or that she should keep it confidential. See, Schley Dep. at 16; Kovatovich Dep. at 70.

On February 8, 1997, the Plaintiff wrote a letter to former K-Mart employee, Phyllis Lange ("Lange"). See, Kovatovich Dep. at 69-70. In the letter, the Plaintiff wrote, "Loon (a nickname for Frame) is going to have artificial insemination sometime this month and with any luck at all she will be on leave for Christmas." See, Schley Dep. at 7.

Two months later, Frame filled a prescription at the K-Mart pharmacy for the fertility drug Clomid. See, McCabe Dep. at 93-94; Frame Dep. at 30-32. According to the Plaintiff, the drug Clomid has multiple uses, one of which is as a fertility drug. See, Plaintiff's Memorandum in Support, at 3. However, the Plaintiff contends that the use of Clomid alone would fail to disclose, to a pharmacist, that a user was undergoing an artificial insemination procedure. Id.; Deposition of Brian Leach, at 71; McCabe Dep. at 94.

Subsequently, in the Summer of 1997, K-Mart employee Donna Wiirre ("Wiirre") was told by Lange, during a telephone conversation, that the Plaintiff had informed her that Frame was attempting to become pregnant. See, Deposition of Donna Wiirre, at 13-16. Later in the Summer, Wiirre conveyed this information to Frame. See, Frame Dep. at 38-39.

In August of 1997, K-Mart promoted McCabe to the position of District Pharmacy Manager. See, McCabe Dep. at 6-8. In October, McCabe met with pharmacist Brian Leach ("Leach") at the Virginia K-Mart store. During their conversation, Leach informed McCabe that, because he did not get along with Kovatovich, he wanted a transfer. See, Leach Dep. at 38-40. Subsequently, on Leach's final day of work, Frame informed Leach of the Plaintiff's letter to Lange. Id. at 46-51.

On that same date, the Plaintiff and Leach engaged in a heated verbal confrontation. See, Kovatovich Dep. at 51-52. As expressed by the Plaintiff, Leach was slovenly, lazy, and generally incompetent. Id. at 117-120. After the pharmacy closed, the Plaintiff followed Leach to the front of the store, where she told him that, in her opinion, a pharmacy technician had performed Leach's job for him and, therefore, a gift from Leach to the pharmacy technician would be appropriate. Id. at 51-52; Leach Dep. at 41-46. This statement led to the confrontation between the

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Plaintiff and Leach. Id. As a result of this incident, the Plaintiff was disciplined, at the direction of McCabe. See, McCabe Dep. at 30-31.

The Plaintiff's letter to Lange did not come to the attention of McCabe until February of 1998. Id. at 62. Around this time, McCabe and Leach had a conversation at the Duluth K-Mart store, during which Leach complained to McCabe about the behavior of the Plaintiff during his last day of work at the Virginia K-Mart. See, Leach Dep. at 59-65. At this time, Leach also informed McCabe that Frame had disclosed the Plaintiff's letter to Lange to him, in which she discussed the attempts of Frame to become pregnant. See, McCabe Dep. at 62-64. Two days later, McCabe made the decision to terminate the Plaintiff, based on a perceived breach of patient confidentiality.

Prior to the termination of the Plaintiff, McCabe conducted an investigation so as to verify the allegations made against her. Initially, McCabe contacted Frame, who verified the information that she had learned from Wiirre; namely, that the Plaintiff had written a letter to Lange, in which Frame's plans for pregnancy were mentioned. Id. at 65-67. McCabe also contacted Brown, who confirmed that Frame had discussed her concerns with him. Id. at 81. Additionally, McCabe spoke with Wiirre, who also confirmed the facts surrounding the Plaintiff's letter to Lange. Id. at 83-84. Subsequently, after consulting with Howard Kramer, who is K-Mart's Director of Pharmacy Operations, McCabe concluded that a breach of patient confidentiality had occurred, and consequently, he made the decision to terminate the Plaintiff's employment. Id. at 86.

On February 16, 1998, McCabe traveled to the Virginia K-Mart store in order to discharge the Plaintiff. Id. at 89. During their meeting, the Plaintiff did not deny writing the letter to Lange but, instead, defended her actions by stating that she never mentioned Frame's drug therapy, and obtained the information regarding Frame's plans for pregnancy through sources unrelated to Frame's prescription. See, Kovatovich Dep. at 70-73.

The Plaintiff argues that McCabe mistakenly assumed that she had received the information regarding Frame through her prescription. See, Plaintiff's Memorandum in Opposition, at 18-19. She also asserts that McCabe neglected to conduct an adequate investigation, through which he would have determined that the Plaintiff obtained the information regarding Frame from independent sources. Id. at 24. However, McCabe has testified that the Plaintiff would have been terminated, regardless of where she had obtained the information regarding Frame, because, in his view, the Plaintiff had breached her duty of patient confidentiality by discussing Frame's medical condition with Lange, no matter what the source of the information might be. See, McCabe Dep. at 58-60, 91-93. In response, the Plaintiff contends that neither K-Mart pharmacy policies, nor applicable law, support McCabe's interpretation of what constitutes a breach of client confidentiality. See, Plaintiff's Memorandum in Opposition, at 8.

Following the termination of the Plaintiff's employment, it is alleged that individuals, who were in no way involved with the hiring or firing of pharmacists, were informed of the reason for the Plaintiff's discharge. Id. at 9. The Plaintiff notes that a variety of people were told of her discharge, including Frame, store pharmacist Amy Warner ("Warner"), and Leach. See, McCabe Dep. at 99; Leach Dep. at 54-55. Also, Judy Ricker ("Ricker"), who is K-Mart's Domestics Manager, told a third party, Brenda Bentz ("Bentz"), the details of the Plaintiff's discharge. See, Bentz Aff.

About a month after the Plaintiff's termination from employment, the Defendant distributed several form letters, as part of a targeted mailing program, to its pharmacy customers. See, Defendant's Responses to Interrogatories, Response No. 12. These letters were sent on K-Mart letterhead,

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and bore the Plaintiff's name — as the purported author of the correspondence — thereby suggesting that she had retained her position as a local pharmacy manager. See, Brown Dep. at 127-129; Defendant's Exs. 13, 14, 25-27. According to the Plaintiff, the Defendant used these letters to parlay the established, long-term relationships between its pharmacists, and their customers, into increased pharmacy sales. See, Plaintiff's Memorandum in Support, at 14. The letters distributed by the Defendant included comments that could be construed as business solicitations, such as: "Your health is important to us, so please come back in and see us." See, Defendant's Exs. 13, 14, 25-27. As such, the Plaintiff argues that the...

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