United States v. John Muir Health

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT JOHN MUIR HEALTH'S MOTION FOR SUMMARY JUDGMENT Re: Dkt. No. 45

          SUSAN ILLSTON UNITED STATES DISTRICT JUDGE

         Plaintiff-Relator 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.

         BACKGROUND

         Plaintiff 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.^[1] 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.

         In May 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 your employment.

Id.

         Murphy 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.

         In or 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.^[2] 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.

         After 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.

         On 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 definitions.

Dkt. No. 46-3, Exh. to Decl. of Fitzsimmons 15.

         There is no evidence that action was taken by JMH at that time in response to plaintiff’s concerns.

         Dr. 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.

         Plaintiff 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.

         Colombana completed plaintiff’s 2010 year-end review on December 28, 2010 and rated her 4.13 out of 5 overall.^[3] 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 “Interpersonal/Communications” subcategory. 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 outcomes[.]

Id. at 10.

         In 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.

         In May 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.^[4] Dkt. No. 49, Decl. of Mamuyac ¶ 4.

         Around 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.^[5] Id.; Dkt. No. 53, Decl. of Thomas ¶ 3.

         In 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, termination.” Id.

         According 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.”^[6] Dkt. No. 60, Decl. of Plaintiff ¶ 12. JMH disputes that this meeting ever took place.^[7] See Dkt. No. 45, Motion at 23; Dkt. No. 63, Reply at 6.

         Colombana 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. Id.

         On 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 . . .[.]” Id.

         On 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 77.

         On 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.^[8] Id. Dr. Bice stated in his declaration,

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.

         On 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.

         On June 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.

         Villanueva responded to this email ...