Bragg v. Sw. Health Sys., Inc., Civil Action No. 18-cv-00763-MSK-NRN

487 F.Supp.3d 1028

Robyn BRAGG, Plaintiff,

v.SOUTHWEST HEALTH SYSTEM, INC., Defendant.

Civil Action No. 18-cv-00763-MSK-NRN

United States District Court, D. Colorado.

Signed September 18, 2020

Anthony Douglas Edwards, Sholler Edwards, LLC, Lynne Marie Sholler, Lynne Sholler, P.C., Law Office of, Durango, CO, for Plaintiff.

Claire Eleanor Mueller, Jacqueline Ventre Roeder, Janet Ann Savage, Katherine Ross Brown, Davis Graham & Stubbs LLP, Denver, CO, Lana L. Rupprecht, Lana L. Rupprecht, Attorney at Law, Bozeman, MT, for Defendant.

OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Marcia S. Krieger, Senior United States District Judge

THIS MATTER comes before the Court primarily pursuant to the Defendant's ("SHS") Motion for Summary Judgment (# 88) , Ms. Bragg's response (# 97) , and SHS’ reply (# 111) . Also pending are several motions seeking to restrict access (# 89, 99, 107, 140, 145, 164) ; motions by both sides to exclude the testimony of the opposing side's expert under Fed. R. Evid. 702 (# 124, 125) ; and various other matters that will be addressed as necessary.

FACTS

The Court briefly summarizes the pertinent facts here and elaborates as necessary in its analysis. Ms. Bragg was employed by SHS as its Director of Health Information Management. Generally speaking, her duties as Director required her to supervise a team of employees who "coded" the medical services provided by employees of SHS for submission to patients’ medical insurance companies. Ms. Bragg's direct supervisor was Angela Kobel, SHS’ Chief Financial Officer.

In December 2016, a subordinate of Ms. Bragg's complained that she had sexually harassed him and created a hostile working environment. Although Ms. Bragg believes the complaint was meritless, it is undisputed that SHS investigated the matter and that based on the investigation, Ms. Kobel determined that Ms. Bragg had acted inappropriately and placed her on a 90-day Performance Improvement Plan ("PIP"). In February 2017, SHS received a complaint from a patient that Ms. Bragg had breached patient privacy rules when she spoke to a patient in a supermarket, congratulating the patient on a positive pregnancy test. The patient, who was in the presence of her estranged husband and did not wish to disclose the pregnancy, denied that anything warranted congratulations, and Ms. Bragg persisted, telling the patient that she had personally "coded your lab" results. Once again, Ms. Bragg disputes certain aspects of the complaint, but does not contest that SHS determined that she committed an "unintentional" violation of privacy rules. SHS issued a written warning, stating that any future violation "will result in immediate termination of employment." SHS also removed Ms. Bragg from certain duties that affected patient privacy rights.

In March 2017, SHS conducted a review of its billing practices relating to IV infusion treatments and concluded that the failure of nurses to record start and stop times for such treatments was preventing SHS from fully billing for those services. Thus, SHS directed that nurses began entering start and stop times for the treatments in medical records. It appears that those times would sometimes be entered by nurses other than those who were actually administering the IV treatments, a practice that Ms. Bragg believed was improper and unethical, possibly amounting to fraud. Ms. Bragg repeatedly reported these concerns to Ms. Kobel and other supervisors at various times between April and August 2017.

In August 2017, Ms. Bragg was the subject of another patient privacy complaint. Because this incident is of substantial consequence in the analysis, the Court explores it in somewhat greater detail. On August 15, 2017, an SHS patient (and co-worker of Ms. Bragg's), whom the Court will identify only as "C" called an SHS complaint hotline. In that call, C stated that on that date, he and Ms. Bragg "were both getting their lunch in the cafeteria." Ms. Bragg "came up to [C] and whispered in his ear ... that she noticed [C] had a rare form of liver cancer and he can get a $1,000 grant for it" from a cancer-relief foundation with which Ms. Bragg was involved. C "stated that he did not know what [Ms. Bragg] was talking about and she said she must have mistaken him for the wrong person." Later, C was "notified that his lab work was back and it wasn't tested for cancer at all." C was upset because this "violates his privacy" and that Ms. Bragg "had no right to interact with him about this issue, she is not his doctor."

C's complaint was investigated by Travis Parker, SHS’ Human Resources Director and Lee Ungnade, SHS’ HIPAA Privacy Officer. They first interviewed C. He explained that he had been receiving treatment from his doctor, Dr. Henderson, for a condition known as "fatty liver," but had not been informed of any concerns about potential liver cancer. C told his wife about the interaction with Ms. Bragg, and his wife contacted Dr. Henderson for clarification. Dr. Henderson called C back, and "was furious about the incident," that she had just gotten C's most recent lab results back, and that "everything was fine." C stated that when he told Ms. Bragg that she must have been mistaken, she responded "don't tell anyone about this."

They then interviewed Ms. Bragg. According to Ms. Ungnade's report of that interview, Ms. Bragg stated that she knew C indirectly through social connections and that she most recently saw him at a birthday party in July. She stated that she "has been coding [C]’s lab work" as part of her official duties, but she denied that she had accessed the actual lab results. She stated that she had whispered to C that "she'd be happy to help him get a grant from the Cancer Fund because she does a lot of work with the Fund," but she also stated that she "did not remember saying anything about liver cancer, [and] she was trying to be nice." Ms. Bragg denied telling C "don't tell anyone about this," but she asked Ms. Ungnade "if she could lose her job" as a result of the incident. (Ms. Ungnade told her "it was a possibility.") Ms. Ungnade then reviewed SHS’ computer records to confirm Ms. Bragg's assertion that she only coded C's lab tests, but did not access the actual test results. The records confirmed that on August 6, 2017, Ms. Bragg had coded an entry for C for "lab testing of the liver," but Ms. Ungnade ultimately concluded that "no labs were seen" by Ms. Bragg. Ms. Ungnade concluded that because actual test results were not disclosed, the situation was not "a HIPAA issue," but rather a "code of conduct, Human Resources issue."

The record indicates that the matter was turned over to Ms. Kobel and Mr. Parker for consideration, and they jointly¹ concluded that, in light of Ms. Bragg's prior discipline, including the patient privacy breach from February 2017, that termination of her employment was appropriate. On August 17, 2017, Ms. Kobel wrote to Ms. Bragg stating that "there have been three separate complaints and subsequent investigations regarding inappropriate actions and HIPAA concerns regarding your actions" and that "SHS no longer has faith in your abilities to function in an acceptable manner." Ms. Bragg offered to resign in lieu of termination, and Ms. Kobel accepted Ms. Bragg's resignation that same day.

Ms. Bragg then commenced this lawsuit, alleging several causes of action (# 1) , but the only claim² that still remains is her claim for retaliation under the False Claims Act, 31 U.S.C. § 3730(h), in that her complaints to superiors of improprieties relating to the entry of start and stop times for IV treatments (and certain other billing-related matters) constituted protected activity under that act, and that her termination was imposed in response to such complaints.

SHS moves (# 88) for summary judgment on Ms. Bragg's False Claims Act claim, arguing that: (i) Ms. Bragg's complaints do not constitute protected activity under the Act because she did not possess an objectively reasonable belief that the actions by the nurses was fraudulent; (ii) Ms. Bragg did not provide SHS with formal notice of her concerns of fraud and that her general complaints to supervisors were insufficient to provide the level of notice required by the Act; and (iii) Ms. Bragg cannot show that her protected activity was a but-for cause of her termination, given that she committed a second patient privacy violation after having committed a similar violation prior to any protected activity and that she had been warned that any future privacy violations would result in termination.

ANALYSIS

A. Standard of review

Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Intern. Corp. , 45 F.3d 357, 360 (10th Cir. 1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof and identifies the party with the burden of proof. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Kaiser-Francis Oil Co. v. Producer's Gas Co. , 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is "genuine" and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson , 477 U.S. at 248, 106 S.Ct. 2505. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett–Packard Co. , 305 F.3d 1210, 1213 (10th Cir. 2002).

If the movant has the burden of proof on a claim or defense, the movant must establish every element of...