Furr v. Ridgewood Surgery & Endoscopy Ctr., LLC, CIVIL ACTION No. 14-1011-KHV

192 F.Supp.3d 1215

Grace FURR, Plaintiff,

v.RIDGEWOOD SURGERY AND ENDOSCOPY CENTER, LLC; Nueterra Healthcare Management, LLC and Joseph T. Poggi, III, M.D., Defendants.

CIVIL ACTION No. 14-1011-KHV

United States District Court, D. Kansas.

Signed June 28, 2016

Donald N. Peterson, II, Sean M. McGivern, Graybill & Hazlewood LLC, Wichita, KS, for Plaintiff.

Gaye B. Tibbets, Hite, Fanning & Honeyman, LLP, David E. Rogers, Foulston Siefkin LLP, Wichita, KS, Tara S. Eberline, Foulston Siefkin LLP, Overland Park, KS, for Defendant.

MEMORANDUM AND ORDER

Kathryn H. Vratil, United States District Court

Grace Furr brings claims against her former employer, Nueterra Healthcare Management, LLC ("Nueterra"), Ridgewood Surgery & Endoscopy Center, LLC ("Ridgewood") and Joseph T. Poggi, III., M.D. ("Dr. Poggi"). Under Kansas common law, plaintiff alleges that Ridgewood and Dr. Poggi tortiously interfered with her employment contract with Nueterra. This matter comes before the Court on the Motion For Summary Judgment(Doc. #82) which Ridgewood and Dr. Poggi filed on March 4, 2015. For reasons set forth below, the Court finds that the motion should be overruled.¹

Legal Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c) ; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Hill v. Allstate Ins. Co., 479 F.3d 735, 740 (10th Cir.2007). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence in support of a party's position. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Nahno – Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir.2010). Once the moving party meets the initial burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial as to those dispositive matters for which she carries the burden of proof. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990) ; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To carry her burden, the nonmoving party may not rest on her pleadings but must instead set forth specific facts supported by competent evidence. Nahno – Lopez, 625 F.3d at 1283.

The Court views the record in the light most favorable to the nonmoving party. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). It may grant summary judgment if the nonmoving party's evidence is merely colorable or is not significantly probative. Liberty Lobby, 477 U.S. at 250–51, 106 S.Ct. 2505. In response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial. Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). The heart of the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251–52, 106 S.Ct. 2505.

Facts²

The following facts are either uncontroverted, deemed admitted or construed in the light most favorable to plaintiff, the non-movant.

Ridgewood is an ambulatory surgery center in Wichita, Kansas. Nueterra manages Ridgewood and employs all clinical and business staff for the facility.³ Nueterra does not employ the physicians who work at Ridgewood. The Development and Management Agreement ("Management Agreement") between Nueterra and Ridgewood governs Nueterra's duties as manager and provider of day-to-day operations at the facility. Nueterra and Ridgewood are partners with a fiduciary relationship.

Nueterra Holdings, LLC, a Nueterra entity which is separate from Nueterra and not a party to this lawsuit, is a minority owner of Ridgewood. Nueterra Holdings, LLC and a group of individual physicians, including Dr. Poggi, invested in Ridgewood and each had an ownership interest in it. The Ridgewood Medical Staff Bylaws and the Ridgewood Operating Agreement govern the relationship between all Ridgewood investors, including Nueterra Holdings and the individual defendants. Goff Depo. at 41-42.

The Ridgewood Medical Staff Bylaws govern the credentialed physicians at Ridgewood, and establish a Credentialing Committee which also acts as the Continuous Quality Improvement Committee ("CQI Committee"). The CQI Committee makes recommendations for privileges, patient safety and risk management and reviews and assesses the quality of care. The CQI Committee also has a duty to "investigate charges of misconduct by Medical Staff Members and Allied Health Professionals and make corrective action recommendations to the Governing Body." Doc. #81-8, § 7.5.6.

In March of 2007, Nueterra hired Grace Furr, a licensed registered nurse, as Clinical Administrator for Ridgewood. Furr entered a written employment contract with Nueterra. Furr's contract specified that she reported to Kim Krause, Nueterra Employer Group Vice President. NUE 219.⁴

Dr. Poggi is an original investor at Ridgewood who performs surgery at Ridgewood and at other locations. Dr. Poggi is one of the largest producers of revenue at Ridgewood. From 2007 to May of 2011, he served on the Ridgewood Board of Managers.

Dr. Gerry Gaston is a surgeon who is an original investor at Ridgewood. Dr. Gaston performs surgeries at Ridgewood and other locations. Dr. Gaston is one of the largest producers of revenue at Ridgewood. From 2007 to the present, Dr. Gaston served on the Ridgewood Board of Managers, and from 2007 to May of 2011, he served as the board chair.

Dr. Stephen Olson is an original investor at Ridgewood who performs surgeries at Ridgewood and other locations. From May 2011 to the present, Dr. Olson has served on the Ridgewood Board of Managers. He has served as chairman of the board from 2013 to the present.

Dr. Douglas Friesen is an anesthesiologist who is an original investor at Ridgewood. Dr. Friesen administers anesthesia during surgeries at Ridgewood and other locations. Dr. Friesen is also the Medical Director for Ridgewood. He has served on the Ridgewood Board of Managers from 2007 to the present.

Dr. Jace Hyder is a surgeon who is an original investor at Ridgewood. He served on the Ridgewood Board of Managers from 2007 to 2013 and was chairman from 2011 to 2013. Dr. Hyder knew Furr before she began working at Ridgewood, and recommended to Nueterra that it hire her as administrator of the practice.

In 2011, the members of the CQI committee included Drs. Olson, Friesen, Hyder, Francis Abraham, Larry Abraham, Reena Patel and two nurses. In 2012, the CQI committee included Drs. Olson, Friesen, Hyder, Francis Abraham, Neff, Babb and two nurses.

2011-12 Sexual Harassment Allegations And Investigation

On August 5, 2011, a staff member told Furr that another employee, nurse Lacey Henningson, had told her that Dr. Poggi had engaged in inappropriate sexual behavior. Also in August of 2011, another employee complained that Dr. Gaston had engaged in inappropriate touching and sexual comments. In September of 2011, Furr reported these complaints to Nueterra Human Resources, which conducted an investigation.⁵ At the direction of Nueterra HR, Furr retained a folder of all emails about the sexual harassment issue and prepared a detailed chronology of events that employees had reported to her. Nueterra HR interviewed Furr and at least seven other Nueterra employees—but not any physicians—concerning possible sexual harassment by physicians.⁶

Nueterra determined that Ridgewood was an environment "at risk," so it referred the matter to Ridgewood to investigate allegations against the physicians. Doc. #93-1 at 38-41. Nueterra sent its attorney, Wyatt Wright, to a meeting with the Ridgewood board in September of 2011.

Nueterra and Ridgewood responded to reports of sexual harassment by Drs. Poggi and Gaston by requiring the nursing staff to attend sexual harassment training at Ridgewood on December 5, 2012.⁷ In that training, Nueterra discussed employees' responsibilities not to engage in sexually charged behavior. It also explained how to report allegations of hostile work environment. Goff Depo. at 174. No Ridgewood physicians attended, and Ridgewood did not ask Drs. Poggi or Gaston to attend sexual harassment training.

On December 5, 2011, Henningson told Furr that Dr. Gaston was being rude to her and that she thought other doctors had told Dr. Gaston that she had complained about his behavior. Nueterra's HR team interviewed Henningson, who stated that she did not think that Dr. Gaston was retaliating. A few days later, Dr. Gaston told Furr that "if [Henningson] has such a problem with me, then keep her out of my [operating] room." NUE 200. Dr. Gaston further stated as follows:

It all needs to stop, the back-rubbing, hugging. You hug people. Someone slapped me on the ass yesterday, & I won't tell you who. You're going to force surgeons out of here and I will be the first to go.

Id.

The Ridgewood CQI committee decided that Drs. Gaston and Poggi should be counseled about the inappropriateness of their behavior. On December 28, 2011, Dr. Hyder, Ridgewood Board Chairman, and Dr. Friesen, Ridgewood Medical Director and Chairperson of the Ridgewood Risk Management Committee, spoke to Dr. Gaston about the allegations of sexual harassment. Dr. Gaston apologized and agreed to only engage in actions that were "appropriate and professional."...