Profumo v. Alliance for Cmty. Health, Case No. 4:12-CV-132 (CEJ)

• Court: United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
• Writing for the Court: CAROL E. JACKSON
• Parties: ROBERT J. PROFUMO, Plaintiff, v. ALLIANCE FOR COMMUNITY HEALTH, d/b/a Molina Healthcare of Missouri, Inc., Defendant.
• Docket Number: Case No. 4:12-CV-132 (CEJ)
• Decision Date: 01 August 2013

ROBERT J. PROFUMO, Plaintiff,
v.
ALLIANCE FOR COMMUNITY HEALTH, d/b/a Molina Healthcare of Missouri, Inc., Defendant.

Case No. 4:12-CV-132 (CEJ)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

Dated: August 1, 2013

MEMORANDUM AND ORDER

This matter is before the Court on defendant's motion for summary judgment. Plaintiff has filed a response in opposition to the motion and the issues are fully briefed.

Plaintiff Robert J. Profumo was the chief medical officer (CMO) for defendant Alliance for Community Health, doing business as Molina Healthcare of Missouri, Inc. (Molina Missouri), until his termination on July 5, 2011. Plaintiff alleges that defendant wrongfully denied him severance benefits. He brings a claim for breach of contract. He asserts in the alternative that the severance benefits constitute an employee welfare plan covered by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001 et seq. He brings a claim for benefits under § 1132(a)(1)(B) and a claim for failure to provide plan information upon request under § 1132(c)(1)(B).

I. Background

As required by the local rules of this district, defendant submitted a statement of undisputed material facts and plaintiff submitted a response identifying those material facts "as to which [he] contends a genuine issue exists." L.R. E.D. Mo.

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4.01(E). In response to more than 30 of defendant's factual statements, plaintiff states in part:

This is not a material fact because this conduct/incident did not cause Molina to terminate Dr. Profumo's employment. Following this conduct and receiving this warning, in December of 2011 Dr. Profumo received accolades from Molina for going above and beyond the call of duty and assuming key duties from the former Chief Operating Officer of Molina's Missouri operation. . .

Doc. #58 at ¶¶ 17, 18, 19, et alia (emphasis added). In most instances, this paragraph is unresponsive to the fact being asserted and thus fails to assist the Court in understanding the factual basis of the parties' dispute. More troubling, the underlined language is incorrect: the "accolades" to which plaintiff refers were issued in December 2010, months before some of the "conduct [or] incident[s]." Id. at ¶¶ 42-50. Dec. 13, 2010 Memo [Doc. #56-7]. The Court does not believe that plaintiff is attempting to manufacture a dispute of material fact for the purposes of defeating summary judgment, but it is not the Court's responsibility to check the parties' statements of fact against the record to determine their accuracy. As a consequence of the error, the Court has disregarded the entire paragraph where it appears in plaintiff's response to defendant's statement of undisputed material facts.

Defendant Molina Missouri is part of Molina Healthcare, Inc., (Molina Inc.), a multi-state healthcare organization that delivers government-sponsored healthcare programs to low-income individuals. In September 2007, defendant acquired Community Care Plus. Plaintiff was the CMO for Community Care Plus and remained in that position after defendant took over.

Plaintiff received written warnings on March 2, 2010, and May 3, 2010. [Docs. #49-5 and #49-6]. The first warning was issued after an internal audit disclosed that plaintiff improperly rejected an appeal decision overturning his initial denial of

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coverage. Plaintiff's action violated accreditation requirements and state and federal regulations. The second warning was issued after plaintiff executed an agreement with a new consultant without obtaining proper corporate review. Plaintiff testified at deposition that he was unaware that defendant's hiring procedures had changed and that he had obtained the plan president's authorization to hire the consultant. Pl. Dep. at 110-12 [Doc. #49-1].

Kristen Cerf is an associate general counsel for Molina Inc. She states in affidavit that she learned in February and March 2011 that at least 11% of Molina Missouri's providers were permitted to carry less than the required levels of insurance. [Doc. #51 at ¶6]. According to Ms. Cerf, plaintiff authorized lower insurance levels for rural providers without consulting the legal or corporate credentialing departments. Id. at ¶7. Plaintiff testified that, at Ms. Cerf's request, he investigated what other healthcare networks required of rural providers. He informed Ms. Cerf that defendant was "in line with" other networks, and she ultimately approved the practice. Pl. Dep. at 154-55.

In December 2010, defendant contracted with Comprehensive Behavioral Care (CompCare) to provide behavioral health services to its Missouri Medicaid members. Plaintiff was the chair of the oversight committee established to ensure that CompCare was compliant with its contractual obligations. On June 3, 2011, plaintiff told Ms. Cerf that CompCare had not adequately developed its provider network, and he asked her to review a letter he intended to send to CompCare. Cerf. Aff. ¶8. Plaintiff also told her that state regulators were scheduled to complete an onsite audit of Molina's behavioral health services on June 15 and 16, 2011. Id. at ¶9. Ms. Cerf asked plaintiff whether he had any concerns about the audit in light of CompCare's inadequate

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network. Plaintiff responded that he did not foresee any issues because other health plans had similar difficulties with rural counties. Id. at ¶10.

At the time of these events, Tina Gallagher was the president of Molina Missouri. According to Ms. Cerf, Ms. Gallagher wanted to conduct a "mock audit" to identify areas of concern. Plaintiff objected that there was not enough time to complete this process and that the results would not be helpful. Id. at ¶12. Ms. Cerf states that it became apparent in the days before the audit that plaintiff and his department were "egregiously under-prepared, were not appropriately responsive, and that CompCare was in breach of its Agreement with Molina Missouri, and Molina Missouri was in turn in breach of the State Contract." Id. at ¶13.

Before the audit, Ms. Cerf and Ms. Gallagher informed the staff, in writing, that Molina Missouri would accept full responsibility for the failure to comply with the State behavioral-health contract. Id. at ¶14. Despite this instruction, and without prior notice to Ms. Cerf, plaintiff gave the auditors his own written statement. Stmt. [Doc. #49-7]. Plaintiff told the auditors that CompCare had performed well on a pre-contract assessment, with the exception of network adequacy for which a "stringent corrective action plan" was developed. He acknowledged that he had recently learned that CompCare was not adequately performing its case management obligations -- this failure was "completely unacceptable" and was addressed with "the highest levels of CompCare." Otherwise, "CompCare has been found to be compliant with all other contractual requirements." Kathie Mancini, Molina Inc.'s Regional Vice President of Healthplan Operations, testified at deposition that the audit results contradicted plaintiff's representations to the auditors. Mancini Dep. Tr. at 35-36 [Doc. #62-2]. See also Notice of Breach of Contract dated June 15, 2011 (identifying material breach

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of contract with respect to CompCare's network adequacy, case management, record keeping, and staffing) [Doc. #57-4].

The audit team was led by Ian McCaslin, M.D., director of Missouri's Medicaid program. Plaintiff...