Larmanger v. Kaiser Found. Health Plan of the Nw.
| Decision Date | 07 September 2012 |
| Docket Number | No. 3:11–CV–00089–BR.,3:11–CV–00089–BR. |
| Citation | 895 F.Supp.2d 1033 |
| Parties | Kimerie LARMANGER, Plaintiff, v. KAISER FOUNDATION HEALTH PLAN OF THE NORTHWEST dba Kaiser Permanente; Kaiser Foundation Health Plan, Inc.; Justin McGowan; and Shawn Ferguson, Defendants. |
| Court | U.S. District Court — District of Oregon |
OPINION TEXT STARTS HERE
Daniel K. Leroux, Portland Civil Law, LLC, Portland, OR, for Plaintiff.
Carol J. Bernick, Carol A. Noonan, Davis Wright Tremaine, LLP, Portland, OR, for Defendants.
This matter comes before the Court on Defendants' Motion (# 102) for Summary Judgment. For the reasons that follow, the Court GRANTS Defendants' Motion as to Plaintiff's First, Second, Fourth, Fifth, Sixth, Seventh, and Eighth Claims.
Plaintiff Kimerie Larmanger began working for Defendant Kaiser Foundation Health Plan of the Northwest (Kaiser) in 1989.
In late 2007 Plaintiff applied for the position of Patient Care Manager (PCM). In October 2007 Plaintiff was interviewed by a panel of Kaiser employees for the PCM position. The panel included, among other people, Jane Gilronan, Manager of Kaiser's Medical Office, and Defendant Justin McGowan, Kaiser's Director of Primary Care Operations.
It is undisputed that McGowan was against promoting Plaintiff to the PCM position at the time of the interview because Plaintiff lacked the required educational qualifications and, in McGowan's opinion, Plaintiff lacked sufficient managerial experience. Nevertheless, other members of the panel were in favor of Plaintiff's promotion, and, therefore, Plaintiff was promoted to PCM in October 2007. During Plaintiff's first week as PCM, McGowan told Plaintiff that he did not believe she was qualified for the position and he did not support her promotion.
In mid-September 2008 McGowan ordered an audit of employee time cards for the entire Northwest region. During the audit it was discovered one of Plaintiff's subordinates, Stacy Enriquez, had timekeeping irregularities.
On September 19, 2008, Plaintiff issued a Level I Corrective Action 1 against Enriquez. At approximately the same time, Plaintiff also received reports from Enriquez's co-workers that Enriquez was negative, intimidating, and condescending. As a result, Plaintiff, together with Gilronan and Leigh Ohlstein, a Human Resources (HR) representative, developed a Level II Corrective Action for Enriquez dated September 19, 2008, that included the co-workers' issues with Enriquez's personality. After Plaintiff drafted the Level II Corrective Action, additional time-card violations by Enriquez came to light. On September 24, 2008, even more violations came to light during a meeting to issue a Level III Corrective Action to Enriquez. Accordingly, Plaintiff issued a Level IV 2 corrective action to Enriquez on September 24, 2008.
On September 26, 2008, during a meeting between Plaintiff, Enriquez, and Ohlstein related to Enriquez's time-card issues, Plaintiff presented an after-visit summary of a visit that Enriquez had with a Kaiser health-care professional as evidenceof Enriquez's time-card reporting violations. Enriquez did not provide Plaintiff with the after-visit summary and was not aware Plaintiff had the summary.
Enriquez was ultimately placed on administrative leave and terminated on October 9, 2008. Plaintiff; Ohlstein; McGowan; Gilronan; and Defendant Shawn Ferguson, an HR Manager, took part in the decision to terminate Enriquez's employment. Plaintiff delivered the decision to Enriquez.
It is undisputed that Plaintiff, Ohlstein, McGowan, and Ferguson supported the decision to terminate Enriquez. Although Gilronan supported the decision to terminate Enriquez based on time-card fraud, she disagreed with the process. Specifically, Gilronan testified at deposition that she believed Plaintiff should have investigated more before issuing the Level I Corrective Action. Even though Gilronan believed the process was too accelerated, she agreed with the result.
On October 9, 2008, Enriquez filed a complaint through the Kaiser hotline alleging Plaintiff had violated the Health Insurance Portability and Accountability Act (HIPPA) when she used Enriquez's Protected Health Information (PHI); i.e., when Plaintiff used the after-visit summary as evidence to substantiate Enriquez's time-card violations. It is undisputed that Kaiser is required by its internal policies to investigate hotline complaints.
In October 2008 Enriquez also filed a complaint with the United States Department of Health and Human Services Office of Civil Rights (OCR) 3 in which she again asserted Plaintiff had violated HIPPA by using Enriquez's PHI as evidence of Enriquez's time-card violations. It is undisputed that Kaiser was required by law to investigate Enriquez's complaint filed with the OCR. Accordingly, Ferguson and Rebecca Sherlock, a member of Kaiser's compliance department, began investigating Enriquez's hotline and OCR complaints in October 2008. Specifically, Sherlock and Ferguson investigated how Plaintiff obtained Enriquez's PHI and whether Plaintiff was authorized to use it.
On October 30, 2008, Plaintiff terminated Frank Pacosa, another Kaiser employee, for accessing the medical records of his wife and daughter without authorization in violation of Kaiser policy and HIPPA. It is undisputed that Plaintiff, Gilronan, McGowan, Sherlock, and Ohlstein were in favor of terminating Pacosa. Although Ferguson agreed Pacosa could no longer work at Kaiser, but he was in favor of offering Pacosa the option to retire or to resign rather than terminating him.
On December 30, 2008, Gilronan drafted a Level II Corrective Action for Plaintiff in which Gilronan stated Plaintiff's performance did not meet Kaiser standards as follows:
1. Accelerated and inappropriate Corrective Action process that did not allow employee to respond with action plan to improve performance. Intent of CA is to improve performance and terminate as last resort when no improvement is observed or measured.
2. Communications are perceived as abrupt, condescending, and threatening and that active listening is absent. Employees do not feel they are listened to nor have opportunity to be heard.
Decl. of Jane Gilronan, Ex. 1 at 1. Gilronan did not intend to deliver the Corrective Action to Plaintiff until after Kaiser's investigation into Plaintiff's use of Enriquez's PHI was complete.
At some point in January 2009 Plaintiff applied for and was granted intermittent leave under the Family Medical Leave Act (FMLA) for migraines retroactively effective January 1, 2009. It is undisputed that Plaintiff was never denied a request to miss work because she had a migraine.
In January 2009 Sherlock finished investigating Enriquez's complaints and concluded they were substantiated. Specifically, Sherlock concluded Plaintiff had used Enriquez's PHI in violation of Kaiser's privacy policies. Plaintiff testified at deposition that she does not have any reason to believe Sherlock is biased against her.
On January 20, 2009, Gilronan advised Plaintiff that she would be receiving a corrective action and that Kaiser's compliance department had recommended the highest level.
On January 26, 2009, Sherlock issued an Investigation Report in which she reported Plaintiff alleged Enriquez's PHI was placed in the in-box outside of Plaintiff's office during the first week of July 2008. Sherlock, however, found Plaintiff, in fact, went through Enriquez's WOW (recycling) box prior to her meeting with Enriquez. Sherlock also reported Plaintiff admitted to using Enriquez's after-visit summary. Sherlock concluded Plaintiff intentionally used Enriquez's after-visit summary without Enriquez's knowledge in violation of Kaiser policy and HIPPA. Sherlock recommended Plaintiff receive a Level III Corrective Action and that Plaintiff should be supervised when applying corrective actions to employees in the future.
On January 27, 2009, Gilronan met with Plaintiff and advised her that she would be receiving a high-level corrective action.
On February 5, 2009, Plaintiff made an anonymous complaint on the Kaiser Hotline in which she asserted, among other things, that “Ferguson has gone too far in this investigation of manager (name declined) and is creating a hostile work environment for the manager and instilling a ‘gag order’ so that the manager cannot discuss the matter with anyone.” Decl. of Missy Maese, Ex. 3 at 1. Plaintiff alleged Ferguson was “taking the discovery of the manager too far, is still pursuing the matter and not looking at the facts the manager has shown him.” Id. Plaintiff also alleged Ferguson was “not willing to review any of the documents used in terminating an employee that was committing fraud against the company,” was “told last summer that [Plaintiff] was a terrible person, so then ... started telling people that [she] was a terrible person,” and refused to participate in Pacosa's unemployment hearing. Id. at 1–2.
Kaiser Compliance Officer Mary Jo Gardner investigated the Kaiser Hotline complaint. It is undisputed that no one but Gardner and Sherlock knew Plaintiff made the February 5, 2009, Hotline complaint.
On February 5, 2009, Plaintiff's attorney sent a letter to Kaiser's Legal Department in which counsel asserted Plaintiff
has been harassed, bullied and threatened regarding an alleged PHI violation, relating to a complaint made by Stacy R. Enriquez, a disgruntled employee who was terminated at the direction of Leigh Ohlstein (Human Resource Consultant) and Justin McGowan (Service Area Director) and the Compliance Department.
[Plaintiff's] direct manager, Jane Gilronan, has stated to my client that the recommendation for discipline was that [Plaintiff] receive a level 3, the highest discipline level and would need to be placed on administrative leave for a day of decision. [Plaintiff] was told by Jane that as soon as Shawn Ferguson finished editing the document that she had to sign the corrective action document when it was issued. She was also...
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