The opinion of the court was delivered by: The Honorable Manuel Real United States District Court Judge
STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW Complaint Filed: September 17, 2009 Date: April 19, 2010 Time: 10:00 a.m. Courtroom: 8
After consideration of the papers in support of and in opposition to Defendant Unum Group's motion for summary judgment or, in the alternative, partial summary judgment, the oral argument of counsel, the evidentiary objections, the files and records herein, and all other matters presented to the Court, the Court determines that the following facts have been established as
1. Defendant, Unum Group, hired Plaintiff, Michael Randall, as an on-site physician, and Plaintiff's job duties included reviewing medical records of claimants who have disability insurance policies covered by Defendant and who have filed claims under the policies. Pl. Dep. 55:9-24, 68:4-70:17.
2. Plaintiff agreed in writing to "conform to the rules, regulations, policies, and procedures of the Company." Pl. Dep. 38:3-17; Ex. 1, 525:8-10.
3. Plaintiff signed a confidentiality policy of Defendant, and on more than one occasion, Plaintiff acknowledged that he received, complied with and understood his obligations under Defendant's "Code of Business Practices and Ethics" (the "Code"), which required, "Employees must maintain the confidentiality of confidential information entrusted to them by the Company or its customer." Pl. Dep. 81:23-82:10, Ex. 7, 49, 444:11-16, 442:6-15, 526:22-25; Pace Decl. ¶ 2, Ex. 5 pg 8; Fleury Decl. ¶ 4. Ex 49.
4. Defendant's "Confidentiality/Non-Disclosure Policy" provides that employees "may not make use of confidential information acquired in the exercise of their jobs to further personal interests or to the disadvantage of the Company." Defendant's "Handling Confidential Information" policy stipulates that confidential information is only to be sent through email "when it is absolutely necessary," and then only by "password protecting" the subject document. Defendant's "Outside Employment Policy" prohibits employees from outside employment that "constitutes a conflict of interest," including employment with a company that "supplies products or services to Unum." Outside employment where a possible conflict of interest existed was contingent on the employee "obtain[ing] written approval from his/her manager prior to accepting outside employment." Pace Decl. ¶ 2, Exs. 9, 14, 15.
5. Plaintiff had access to all of the above policies during his employment at Defendant. Pace Decl. ¶ 2.
6. In February 2008, Cheryl Greaney, Vice President Medical Operations & Consumerism, received a complaint from an employee that Plaintiff had acted in a hostile and threatening manner when dealing with a female physician at Defendant. Defendant's Director of Employee Relations, Dorthe Pace, conducted an investigation regarding the complaint. Pace Dep. 14:19-15:22; Greaney Dep. 18:6-19:1, 19:22-20:16.
7. Pace's investigation revealed that many of Plaintiff's fellow physicians and other colleagues felt that Plaintiff acted in an inappropriate, bullying, ranting and "out-of-control" manner during meetings and in private conversations, and was extremely disrespectful of their opinions and feelings. Pace Dep. 14:14-20, 19:23-24, Ex 65, 20:20-21:18, 23:24-24:11; Kanovsky Dep. 38:8-12.
8. Pace communicated the substance of these complaints to Plaintiff during a meeting between the two of them on February 25, 2008. Pl. Dep. 259:25-261:5; Pace Dep. 29:21-23, 31:24-32:3.
9. Plaintiff was warned about the reported complaints during his 2007 Performance Review, which stated, inter alia, that "Dr. Randall needs to tone down any outbursts that have been disruptive to peer and team interactions." Also, "in meetings with peers, his manner can be somewhat intense, and that can be off putting and bruise feelings." Also, that " [Plaintiff needs to] address his disruptive behavior and manage outbursts that appear confrontational." Pl. Dep. 272:20-273:5, Ex. 37.
10. A second investigation ("Second Investigation") involved a claim ("the Disability Claim") to which Plaintiff was assigned. The Second Investigation resulted from additional complaints to Defendant that Plaintiff was rude, argumentative, aggressive, shouted and made "in your face gestures" during meetings pertaining to the Disability Claim. Pace Dep. 55:21-56:7, Ex. 70.
11. During the Second Investigation, it was reported to Pace that Plaintiff had disclosed portions of the confidential claim file at issue to individuals outside of Defendant. Pace Dep. 55:21-56:7, Ex. 70, 62:13-63:11.
12. Plaintiff admits that he spoke with the "girlfriend" of a friend regarding the Disability Claim; 2) that he read to her the questions posed to him in Disability Claim and his written response to the claims examiner's request for additional input; and 3) that he did so to discover what she "thought of" the tone of his response. Pl. Dep. 283:4-284:18.
13. Defendant issued Plaintiff a written Final Warning on June 6, 2008. This warning addressed the multiple employee complaints raised against Plaintiff. The Final Warning also addressed the importance of confidentiality, stating: "under no circumstances is it appropriate for you to discuss any information about a claim file, a claimant or any confidential Unum Policy or business Practice with ...