United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
JOHN MUIR HEALTH'S MOTION FOR SUMMARY JUDGMENT Re: Dkt.
ILLSTON UNITED STATES DISTRICT JUDGE
Pamela K. Lindersmith (“plaintiff”) advances the
present action for retaliation and wrongful employment
termination pursuant to 31 U.S.C. § 3730(h), California
Labor Code § 1102.5, and the common law tort of wrongful
termination in violation of public policy. Her complaint
alleges that her former employer, defendant John Muir Health
(“JMH”), and defendant Bay Area Therapeutic
Radiology & Oncology Associates Medical Group, Inc.
(“BATROA”) engaged in actions that violated the
Federal False Claims Act, 31 U.S.C. § 3729 et
seq., and that she was retaliated against and wrongfully
terminated when she attempted to stop JMH from presenting
false claims for payment to the United States government.
Dkt. No. 28, First Amended Compl. (“FAC”).
Defendant JMH moved for summary judgment, or in the
alternative, partial summary judgment. Dkt. No. 45. The
parties presented oral argument on the motion on June 2,
2016. Having carefully considered the parties’
submissions, the Court hereby GRANTS JMH’s motion in
part and DENIES it in part.
is a former employee of JMH, a hospital and corporation with
its principal place of business in Contra Costa County,
California. FAC ¶¶ 2, 3; Dkt. No. 53, Decl. of
Thomas ¶ 2. She began her career as a radiation
therapist in 1986, and in 1997 JMH hired plaintiff as a per
diem radiation therapist. FAC ¶ 18; Dkt. No. 46-1,
Plaintiff Depo. at 8. In 2000, JMH promoted plaintiff to Chief
Therapist of JMH’s Walnut Creek campus. FAC ¶ 18;
Dkt. No. 46-1, Plaintiff Depo. at 8-9. During the time that
plaintiff served as Chief Therapist, she reported directly to
the Radiation Oncology Manager of the Walnut Creek Campus,
Margaret Murphy. Dkt. No. 46-1, Plaintiff Depo. at 9. Murphy
reported to the Executive Director of Medical Imaging and
Radiation Oncology, who as of July 2003 was Don Colombana.
Dkt. No. 46-2, Colombana Depo. at 3-4.
2006 Colombana conducted a meeting with plaintiff to discuss
performance concerns he had with her, including her ability
to maintain healthy working relationships with colleagues
like Murphy. Dkt. No. 46-1, Plaintiff Depo. at 19, 24-25. In
late 2006 Murphy met with plaintiff to discuss continued
communication issues the two were having. Dkt. No. 48-1,
Decl. of Murphy at 2-4. In March 2007 Colombana wrote in an
email to JMH’s Director of Human Resources that
plaintiff “is very critical of her colleagues,
alienates them, and operates with a complete lack of team
work.” Dkt. No. 49-1, Exh. to Decl. of Mamuyac at 2. In
the same email Colombana noted that plaintiff and Murphy
“have equal responsibility for the problems in th[e]
department.” Id.Colleagues recalled that
“personality clashes” between Murphy and
plaintiff during this time were “significant.”
Dkt. No. 46-3, Villanueva Depo. at 48. In April 2007
Colombana prepared an addendum to plaintiff’s 2006
employment evaluation describing his concerns with
plaintiff's work performance. Dkt. No. 46-3, Exh. to
Decl. of Fitzsimmons at 6. In the document Colombana wrote:
[Y]our leadership is tenuous and your ability to successfully
supervise the Radiation Oncology department is in question.
If you are to succeed in this role in the future, you must
demonstrate solid leadership skills, proactive support of
others, superb communication and positive results in
relationships with stakeholders if you are to regain the
ground lost during this year. You must be aware that if you
are unable to perform the full scope of your job and
demonstrate success in each of these areas, we will have no
alternative but to take further action, including terminating
left JMH in 2007. Dkt. No. 48, Decl. of Murphy ¶ 1. In
2008, JMH promoted plaintiff to Manager of JMH’s Walnut
Creek Radiation Oncology Department, with continuing
management responsibilities over the Neuro-Oncology Program
at both campuses. Plaintiff began to report to Colombana
directly. FAC ¶ 18; Dkt. No. 46-1, Plaintiff Depo. at
10-12; Dkt. No. 46-2, Colombana Depo. at 28-29.
around December 2009, as part of her duties as Manager of
JMH’s Walnut Creek Radiation Oncology Department,
plaintiff attended a conference on Medicare billing for
radiation oncology procedures in which physician supervision
requirements were discussed. FAC ¶ 19; Dkt. No. 46-1,
Plaintiff Depo. at 44. Plaintiff was informed at the
conference that supervision requirements for Medicare
reimbursement had changed and that in order to bill for a
reimbursement, physicians in the neuro science group had to
be present in order to supervise the procedure. Dkt. No.
46-1, Plaintiff Depo. at 47.
the December 2009 conference, plaintiff asserts that she
discussed the supervision requirements with the BATROA
physicians and JMH personnel at a meeting and informed them
of their obligation to comply with the supervision
requirements as a condition of payment by Medicare. FAC at
¶ 19; see also Dkt. No. 46-1, Plaintiff Depo.
at 45-48. Plaintiff also asserts that in either December 2009
or January 2010, she posted the written guidelines on how to
comply with the supervision requirements on a shared computer
drive and emailed the relevant physicians to tell them where
it was located. She testified that she alerted the physicians
in an email where to find the documents and highlighted the
areas that showed the supervision requirements so that the
requirements “were easy to find.” Plaintiff
testified that she gave the requirements to another physician
and “we subsequently distributed th[e requirements] to
all the BATROA physicians as well.” Dkt. No. 46-1 at
45-46, 53-54. Defendant JMH disputes this account of
plaintiff’s activities following the December 2009
conference. See Dkt. No. 45 at 23, Motion.
September 8, 2010, plaintiff emailed the Executive Director
of Oncology Services (Brenda Carlson), Colombana, the
Radiation Oncology Manager of the JMH Concord campus (Rekha
Patel), and the Director of Colorectal, Thoracic and Urology
(Janice Hoss) about the guidelines related to physician
supervision in treating Medicare patients, because she wanted
“their opinion on what they were reading.” Dkt.
No. 46-1, Plaintiff Depo. at 52-56; Dkt. No. 46-3, Exh. to
Decl. of Fitzsimmons 15. She wrote:
I am not comfortable with the statement that we currently
have direct supervision of all our radiation therapy
treatments. According to these guidelines and the statements
made . . . at the Dec. 2009 . . . conference, we do not. We
have direct supervision most of the time, but not all of the
time. . . . Please review and see if you agree based on these
Dkt. No. 46-3, Exh. to Decl. of Fitzsimmons 15.
is no evidence that action was taken by JMH at that time in
response to plaintiff’s concerns.
William Bice was hired in November 2010 by JMH as Chief
Physicist. Dkt. No. 47, Decl. of Bice ¶ 2. From the
beginning of his employment at JMH he found plaintiff
“to be someone [who] was difficult to communicate
with” and he “did not think that [plaintiff] was
a strong team player.” Id. at ¶ 3.
asserts that in 2010, 2011, and 2012 she attended monthly
management meetings with Colombana, the BATROA doctors, and
(after he was hired), Dr. Bice. Dkt. No. 60, Decl. of
Plaintiff ¶ 9. Plaintiff states that at numerous
meetings where Dr. Bice was present, she informed those in
attendance that JMH and BATROA were not compliant with
Medicare supervision requirements; plaintiff asserts that
this happened more than 10 times between 2008 and 2012.
Id.; Dkt. No. 59-3, Plaintiff Depo. at 18. Defendant
JMH disputes plaintiff’s account of these meetings.
See Dkt. No. 45 at 23, Motion.
completed plaintiff’s 2010 year-end review on December
28, 2010 and rated her 4.13 out of 5 overall. Dkt. No. 46-3,
Exhibit to Decl. of Fitzsimmons at 12. Plaintiff received
“4-proficient” or “5-expert” on all
categories, except in the area of “Leadership
Competencies” where she received a
“3-competent” under the
Id. In this subcategory Colombana wrote:
Pamela’s communication style is very direct, which is
ok most of the time, but can be interpreted negatively at
times. The result of this is that although Pamela's
leadership is strong and direction correct, the style can at
times not build cooperative working relationships or foster
collaboration. . . . Pamela should seek a balance between
driving the changes that need to be made in Radiation
Oncology and developing [her] communication behaviors and
Id. at 10.
March 2011 Colombana, at the urging of plaintiff, hired a
mediator who had previously worked with members of the JMH
staff. Dkt. No. 46-2, Colombana Depo. at 38. According to
Colombana, the purpose of the mediator was to
“facilitate communication and collaboration between
[plaintiff] and [Dr. William] Bice.” Id. Dr.
Bice stated that the mediator “did not seem to help,
” and that he observed plaintiff’s “weak
leadership and poor communication . . . with many others on
both campuses during the time [he] was Chief
Physicist.” Dkt. No. 47, Decl. of Bice ¶ 3. Dr.
Bice described plaintiff’s Radiation Oncology
Department as a place of “turmoil” which he
“attributed largely” to plaintiff. Id.
2011, the Radiation Oncology Manager at the Concord campus
(Rekha Patel) left JMH. Dkt. No. 46-2, Colombana Depo. at
29-30; Dkt. No. 49, Decl. of Mamuyac ¶ 4. An outside
consulting company assessed the department and recommended
that the department hire a single manager who could manage
both campuses. Dkt. No. 46-2, Colombana Depo. at 30. At this
time plaintiff was the Radiation Oncology Manager at the
Walnut Creek campus. Dkt. No. 28, FAC ¶ 18. The Concord
position remained vacant for over a year. Dkt. No. 49,
Decl. of Mamuyac ¶ 4.
the summer of 2011 Colombana and plaintiff began to spend
time alone together while at work. Dkt. No. 46-1, Plaintiff
Depo. at 76; Dkt. No. 46-2, Colombana Depo. at 43-44, 48-50.
Many people in the department suspected that Colombana and
plaintiff were romantically involved. Dkt. No. 50, Decl. of
Aiton ¶ 4. At least one employee testified that she
began to question whether she could discuss her frustrations
with plaintiff to Colombana during this time. Id. In
the early summer of 2012 JMH’s President, Mike Thomas,
met with Colombana to discuss the rumor that Colombana and
plaintiff were having an affair. Dkt. No. 46-2, Colombana
Depo. at 45-46. Colombana denied the rumor. Id.;
Dkt. No. 53, Decl. of Thomas ¶ 3.
February 2012 Colombana received a written warning from
Thomas and the President of the Walnut Creek Campus (Jane
Willemsen), detailing JMH’s concern about an unrelated
issue related to compliance. Dkt. No. 46-3, Exh. to Decl. of
Fitzsimmons at 17. The memo directed Colombana to “make
compliance a priority and ensure that JMH is meeting all
regulatory requirements within [Colombana’s] areas of
responsibility.” Id. The memo cautioned that
“[a]ny issues regarding noncompliance will lead to
further disciplinary action, up to and including,
to plaintiff, she informed Colombana that she wished to bring
up the physician supervision issue again, given JHM’s
heightened compliance awareness. Plaintiff testified that
Colombana then organized a meeting with plaintiff, Colombana,
Dr. Bice, and BATROA physicians in the Spring of 2012. Dkt.
No. 60, Decl. of Plaintiff ¶¶ 10, 11; Dkt. No.
46-1, Plaintiff Depo. at 60; Dkt. No. 59-3, Plaintiff Depo.
at 25. At the meeting the physicians disagreed with
plaintiff’s assessment that they were required to be
present during treatment in order to be eligible for Medicare
reimbursement. Dkt. No. 46-1, Plaintiff Depo. at 59-63.
According to plaintiff, the physicians immediately became
hostile toward her. Id.; see also Dkt. No.
59-2, Plaintiff Depo. at 28-29. Plaintiff states that Dr.
Bice told her on multiple occasions that BATROA doctors could
“do what they want.” Dkt. No. 60, Decl. of
Plaintiff ¶ 12. JMH disputes that this meeting ever took
place. See Dkt. No. 45, Motion at 23;
Dkt. No. 63, Reply at 6.
testified that a few days after the meeting one of the BATROA
doctors, Dr. Michael Levine, approached Colombana and
expressed concern about plaintiff’s intent to
“report them to CMS, [i.e.] the Federal
government” regarding what was discussed in the
meeting. Dkt. No. 46-2 at 51-55. Colombana assured Levine
that plaintiff was not going to report JMH or BATROA to CMS.
April 3, 2012, plaintiff received an email from a colleague
directing her to the CMS website; the colleague wrote,
“Let me know if you need further assistance.”
Dkt. No. 59-2, Exh. to Decl. of Kunst at 111-112. Plaintiff
forwarded that email to Colombana the next day, writing,
“We need to search this site for Physician supervision
. . . specific to speciality procedures . . . [.]”
Id. at 111. Colombana forwarded plaintiff’s
email to Jeff Farris, a Quality and Compliance Supervisor at
JMH, writing only, “For Radiation Oncology.”
Id. Farris replied to Colombana’s email by
writing to plaintiff (Colombana was carbon copied on the
email). Id. at 110. Farris wrote, “I’ve
attached two documents that cover the physician supervision
requirements in radiation oncology.” Id.
Plaintiff responded to Colombana, “Thanks . . . this is
good . . . I suggest we pass on to Beth and let her define
expectations for MDs from JMH compliance perspective . .
April 16, 2012, JMH President Mike Thomas carbon copied the
Vice President of Human Resources, Alice Villanueva, on an
email asking whether “[f]rom an HR perspective, [she
had] thoughts or potential concerns if [JMH] were to move Dr.
Bice to [be] a director of [Radiation Oncology], ” thus
replacing Colombana. Dkt. No. 59-2, Exh. to Decl. of Kunst at
April 17, 2012, compliance with the “physician
presence” requirement was discussed at a management
meeting. Dkt. No. 59-2, Exh. to Decl. of Kunst at 121-122.
Attendees were told that the issue would be sent to the JMH
compliance department and reviewed by it, and information was
distributed. Id. Colombana, Dr. Levine, and five
other physicians, including Dr. Bice, were
present. Id. Dr. Bice stated in his
I understand that [plaintiff] claims she raised the issue of
the physician supervision requirement at one meeting in which
I was present in early 2012. Because the issue of physician
supervision did not relate to my position as Chief Physicist
at the time, I did not participate in any conversation during
any such meeting related to that issue nor would I have even
engaged in such discussions.
Dkt. No. 47 at ¶ 6.
April 18, 2012, Villanueva sent an email to Karen Mamuyac,
the Director of Human Resources for JMH, with the subject
heading, “Pam Lindersmith.” In the email
Villanueva wrote, “Do you have a file on, or have
‘stuff’ on Pam Lindersmith.” Dkt. No. 59-2,
Villanueva Depo. at 79. When asked what prompted her to send
this email, Villanueva responded, “Well, again I had
gotten at least . . . one call from [a] physician, but also
[an earlier email from Thomas] had referenced that there were
physicians concerned about [plaintiff], but it was my
question to Karen ‘was there anything else that was
going on that she was aware of.’” Id. at
80. Villanueva stated that she had had discussions with
Colombana “several months prior and several years prior
about issues with [Radiation Oncology] and with
[plaintiff].” Id. at 78. Villanueva clarified
that she was not asking Mamuyac for plaintiff’s
personnel file, but “if [Mamuyac] had any notes or any
- anything relative to if there were things going on in
[Radiation Oncology] or diagnostic imaging that [Villanueva]
wasn’t aware of.” Id. at 80.
7, 2012, Lorna Jones, another member of the JMH HR team,
wrote an email to Villanueva and Mamuyac. Jones wrote:
I met with [Dr. William] Bice about his pending role change
and the reorganization of the department. He . . . does want
to eliminate the existing position held by [plaintiff]. He
said [plaintiff] will not be able to function in this new
position due to her difficulties with communication and
physician/employee relations issues. [Plaintiff] no longer
has the support of the [Walnut Creek] [n]euro surgeons and
[Bice] wants to eliminate her position in the next few weeks.
. . . I don’t see [plaintiff] being successful in
stepping down to a staff role.
Dkt. No. 59-2, Exh. to Decl. of Kunst at 136.
responded to this email ...