Wondercheck v. Maxim Healthcare Servs., Inc.
| Decision Date | 20 October 2020 |
| Docket Number | CAUSE NO. A-19-CV-0640-LY |
| Citation | 495 F.Supp.3d 472 |
| Parties | Laura WONDERCHECK, Plaintiff, v. MAXIM HEALTHCARE SERVICES, INC., Defendant. |
| Court | U.S. District Court — Western District of Texas |
Matthew Barton Caponi, Austin Harris Kaplan, Kaplan Law Firm PLLC, Austin, TX, for Plaintiff.
Lindsay A. Hedrick, Victoria L. Bliss, Jones Day, Dallas, TX, for Defendant.
ORDER DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT AND RESETTING FINAL PRETRIAL CONFERENCE
Before the court is Plaintiff Laura Wondercheck's complaint, which alleges that her former employer Defendant Maxim Healthcare Services, Inc. ("Maxim"), a federal contractor, wrongfully retaliated against her by terminating her employment after she made whistleblowing reports that her supervisor was committing fraud against the federal government. See 41 U.S.C. § 4712 (National Defense Authorization Act);1 31 U.S.C. § 3730(h) (False Claims Act). Maxim answered and raised affirmative defenses. Wondercheck moves for a partial summary judgment on the issue of liability on both claims and Maxim moves for summary judgment as to the entire action.2
In July 2015, Maxim hired Wondercheck to work as a pharmacy technician at the United States Immigration and Customs Enforcement Agency's ("ICE") South Texas Family Residential Facility in Dilley, Texas ("Dilley facility"). The Dilley facility, is a detainment center for undocumented immigrant women and children that provides, inter alia , medical services to those awaiting due process before immigration courts. Maxim, a for-profit company, contracted with ICE to provide on-site medical staffing services at the Dilley facility.3
ICE Contracting Officers and ICE Health Services Corps employees exercised oversight of Maxim's operations at the Dilley facility. ICE Contracting Officers ensured compliance with the Contract's terms and conditions, monitored performance, verified invoices, and provided direction to Maxim with regard to Maxim's execution of its duties and obligations under the Contract. ICE Health Services Corps employees were in charge of the medical clinic in which Maxim employees worked. ICE's contractual remedies for ensuring Maxim's compliance with the Contract included the ability to terminate the Contract for noncompliance. ICE also reserved the right to request the removal of any Maxim personnel whose performance was unsatisfactory, as well as to deny access to any Maxim employee to the Dilley facility if the employee did not maintain certain "Attributes and Professional Qualities," which included integrity and honesty. ICE also reserved the right to deny facility access to any contract employee whose actions conflicted with federal standards of conduct, which included a duty to disclose waste, fraud, abuse, and corruption. See 5 C.F.R. § 2635.
Each Maxim employee signed a Contract position description, which detailed the particular aspects of the position and also included the required attributes and professional qualities expected of the individual as an employee working at the Dilley facility.
The Code next describes how employees may access the hotline and other methods for reporting violations. Maxim also maintained a Whistleblower Protection Policy for employees who reported noncompliance matters. Finally, Maxim had a corrective-action policy, which provided for progressive discipline for employees who were remiss in their duties, but Maxim reserved the right to bypass disciplinary steps based on the severity of an action.
As a Maxim pharmacy technician at the Dilley facility, Wondercheck was responsible for meeting standards set by Maxim and the ICE Health Services Corps. Under Maxim's job description as a pharmacy technician, which Wondercheck signed on June 22, 2015, Wondercheck's duties included preparing and dispensing medications, ordering medication supplies, and checking medications received against orders placed. Additionally, she was to "[r]eport[ ] potential violations of Company policy, Code of Conduct, and/or applicable laws and regulations to the Company hotline through the chain of command, to the Compliance and Ethics Department, or through other channels."
Under the ICE Health Services Corps job description, which Wondercheck signed on February 2, 2015, she was to possess certain "Attributes and Professional Qualities," including strong oral and written communication skills, excellent interpersonal skills, critical thinking skills, integrity, and honesty.4
Wondercheck was required to certify that she had read Maxim's Code of Conduct annually. The Code of Conduct provided that all employees Maxim also provided Wondercheck compliance training, which covered topics such as fraud, abuse, and waste, and reiterated that it was an employee's "duty to report any suspected violation of law, the Code of Conduct, or Company policies and procedures."
Wondercheck's employment history
In reviewing the summary-judgment proof, there are two matters related to Wondercheck's employment with Maxim that are significant–Wondercheck's actions regarding (1) refrigerator-temperature reports, and (2) fraud reports. The court addresses these issues as they occurred chronologically.
Wondercheck's refrigerator-temperature reports
In late 2015, Maxim discovered that the temperatures of certain refrigerators and freezers utilized by the pharmacy had not been overseen or managed properly, leading to the destruction of approximately $80,000 worth of vaccines. Maxim and ICE Health Services Corps implemented a revised version of the local operating procedures related to refrigeration-temperature management, and Maxim educated its pharmacy staff, including Wondercheck, about reporting out-of-range temperatures in a timely manner.
In May 2016, Maxim reviewed the pharmacy's refrigerator temperature logs for April and May 2016. Maxim discovered that on eight occasions, out-of-range temperatures had been recorded and there had been a failure to take corrective action as required by the revised policy and procedure. All of the out-of-range temperatures were reported by Wondercheck. In late May 2016, Maxim Contract Manager, Shawn Coffin interviewed Wondercheck about her failure to follow the refrigeration-management policy. Although Wondercheck's failure to follow the procedures was cause for Maxim to terminate Wondercheck's employment, on June 22, 2016, Maxim gave Wondercheck an Initial Warning. The warning given to Wondercheck provided that, "[u]nsatisfactory job performance in the future may result in additional corrective action up to and including termination of employment."
Wondercheck's fraud reports
Pharmacist An Nguyen, also a Maxim employee, was Wondercheck's direct supervisor throughout Wondercheck's employment with Maxim at the Dilley facility. Brad Switter, was also employed as a pharmacy technician by Maxim, was a coworker of Wondercheck, and was supervised by An Nguyen.
In February 2016, Wondercheck first observed An Nguyen ingest a Lovaza pill, that An Nguyen had improperly took off the pharmacy shelf at the Dilley facility.5 Wondercheck spoke with An Nguyen about his improper actions, telling him he needed to stop the improper behavior. Wondercheck later discovered that An Nguyen was ordering pharmaceuticals for men, which were not administered to the women and children at the Dilley facility, including Rogaine, Lovaza, and Metformin 850 mg tablets. Wondercheck learned that An Nguyen was taking these medications to use himself and was giving them to his family members. On June 9, 2016, Wondercheck called Maxim's Integrity Hotline and reported An Nguyen's actions.
Based on Wondercheck's hotline call, Coffin began an informal internal investigation of the matter. He confirmed An Nguyen's actions and learned that Wondercheck had known about An Nguyen's improper actions for at least four months before she called the hotline. When Coffin spoke with Wondercheck, he asked her why she had waited so long to report An Nguyen's actions. Wondercheck told Coffin that she wished she had reported An Nguyen's actions earlier. Wondercheck maintained she waited to make the report until she had a good faith belief that An Nguyen was committing fraud. Wondercheck stated by deposition that she did not have a good faith belief that An Nguyen was committing fraud until the first order for Minoxidil, a male hair growth product not used by women or children, arrived at the pharmacy in May 2016, near the time she called the hotline. It was then she concluded that An Nguyen was committing fraud upon the federal government. Coffin's investigation revealed that Switter also knew of An Nguyen's actions, but Switter never reported ...
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