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Gene L. Rogers v. County of Sacramento

October 24, 2011


(Super. Ct. No. 34-2008-00004894-CU-WT-GDS)

The opinion of the court was delivered by: Butz , J.

Rogers v. County of Sacramento CA3


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In 1999 Gene L. Rogers, M.D., was hired as Medical Director of the medically indigent health services program for the County of Sacramento (the County). In 2003, he filed pro se "whistleblower" lawsuits in state and federal court, alleging that the County was--in violation of federal law--providing non-emergency medical care to undocumented aliens.

In 2005, it came to the attention of Rogers's supervisors that he was spending a substantial amount of working hours and using county resources in pursuit of his personal litigation. A subsequent performance review found that Rogers was seriously deficient in many areas of his job duties, as well as having engaged in discourteous and insubordinate conduct towards his peers and supervisors.

When Rogers's performance failed to improve and he continued to defy his supervisors' directive not to work on his litigation while on the job, he was dismissed from his position.

Rogers filed a retaliation lawsuit alleging that he was harassed and then terminated for pursuing his pro se litigation. The trial court granted the County's motion for summary judgment. Rogers now appeals. We find no error and shall affirm.


Rogers's Employment with the County

In 1999 Rogers was hired by the Sacramento County Department of Health and Human Services (DHHS), as Medical Director of the County Medically Indigent Services Program (CMISP). The program provides non-emergency medical services to indigent residents of the County. At all times, Rogers's employment was "at will."

From 2004 through 2007, Nancy Gilberti was the Program Manager for the County's DHHS. She oversaw the County's CMISP program and was Rogers's direct supervisor from 2004 until August 2007.

Rogers's job duties did not include determining whether a patient receiving non-emergency services was a legal resident. That function belongs to the County's Department of Human Assistance, which is separate from the DHHS. If Rogers, or any employee, had reason to believe that a patient was an undocumented alien, he was required to report the information to the Department of Human Assistance.

Qui tam Litigation

In August 2003, Rogers filed a civil action in the United States District Court as a complainant on behalf of the government, alleging that the County was unlawfully using public funds to pay for medical services for undocumented aliens. He also filed a sealed whistleblower action in state court under the California False Claims Act (CFCA), with the same material allegations. (See Gov. Code, § 12650 et seq.)*fn2 The two lawsuits were consolidated in federal court and eventually dismissed. They are no longer pending.*fn3

In January 2004, the CFCA suit was unsealed and Rogers notified each member of the County Board of Supervisors that the action was pending. Rogers had been complaining to county officials since at least 2001 that illegal aliens had been receiving treatment by the County and, by 2004, county management was fully aware that Rogers was pursuing the qui tam litigation.

The Cease and Desist Letter

Sometime in 2005, Gilberti and the County's Division Chief of Primary Health Services Keith Andrews, M.D., became aware that Rogers was spending county time and using county computers and fax machines to pursue his qui tam litigation. An investigation confirmed that Rogers was indeed spending working hours and using county e-mail and the Internet for matters that were not job related.

Consequently, in January 2006, Andrews sent a "Direction to Cease and Desist" to Rogers (Cease and Desist letter). That letter acknowledges the lawsuit Rogers had filed against the County alleging unlawful payment for illegal immigrants through the CMISP program. It also notes that Rogers had been informed that he may not use county time or resources in pursuit of the litigation. Nevertheless, the letter continued, Rogers had expressed the opinion that he had the right to work on his lawsuit during working hours and while using county resources. "Accordingly," stated Andrews, "I am directing you to immediately cease and desist working on your litigation during your work hours for the County of Sacramento, or while on the premises of your worksite or any County facility you are required to be present at in the course of your job duties. I am further directing you to cease and desist using any County equipment, staff time, facilities, and other resources for purposes of advancing your litigation." The letter then detailed a list of activities from which Rogers was directed to refrain during normal working hours.

Further Progressive Disciplinary Action

In November 2006, Gilberti and Andrews felt that Rogers was not addressing concerns they had about his performance. Gilberti therefore prepared a "Duty and Standards" statement outlining the scope and functions of Rogers's position as "Medical Consultant."*fn4 Among other things, these responsibilities included overseeing and approving requests for provider services from outside providers for non-emergency care, developing and implementing policies and procedures for the CMISP program and displaying "strong and visible leadership as a consultant."

Following Rogers's receipt of this statement of his responsibilities, Gilberti determined that he continued to fail to perform his job at an acceptable level. Thus, on April 4, 2007 (all further unspecified calendar dates are to 2007), Gilberti wrote a memorandum to her supervisors at DHHS, describing her concerns about the way Rogers was handling his job. Gilberti observed that "[Rogers] appears to be demonstrating patterns of behavior which are unprofessional, inconsistent with . . . his outlined job duties and standards, and inconsistent with the expectation of someone at his rank and level of authority." The memo listed a number of observations, including (1) poor judgment, poor communication and lack of teamwork; (2) failure to follow the program manager's instructions; (3) allowing a "crisis situation to continue and to grow" in community specialist participation in CMISP; and (4) disrespectful and discourteous treatment of supervisor and co-workers. She concluded that Rogers's behavior has "contribute[d] to additional work for other team members, including managers, supervisors, nurses, support staff, clinic staff, Division Chief, and contracted providers."

On May 4, 2007, Gilberti gave Rogers a written evaluation of his job performance based upon the description of job duties given to him in November 2006. In each category, save one, Rogers was rated "E," denoting "effort needed at meeting customer service standards." After each category, Gilberti wrote a series of recommendations for improvement. The evaluation contained a "corrective action plan" requiring Rogers to complete certain tasks by certain dates. Rogers told Gilberti that one of the areas she said he needed to improve upon, medical specialist recruitment, was not part of his responsibilities.

On May 7, Gilberti prepared and delivered to Rogers a letter of reprimand and met with him to discuss its contents. The letter cited three events demonstrating "discourteous treatment, neglect of duty, and willful disobedience." It also recounted an incident in which Rogers inappropriately wrote a comment regarding a patient's immigration status on an ophthalmology referral, an act "which is outside your and [the CMISP] program's purview." The reprimand also noted that Rogers had violated the terms of the Cease and Desist letter by continuing the "use of your title and County resources in furtherance of your litigation with the County." Rogers was directed to comply with the terms of the Cease and Desist letter, and to "treat all individuals respectfully and professionally." The reprimand reminded Rogers that he was an at-will employee ...

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