Kopko v. Lehigh Valley Health Network

PATTI KOPKO, Plaintiff, v. LEHIGH VALLEY HEALTH NETWORK, et al., Defendants.

CIVIL ACTION NO. 14-1290

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

October 31, 2016

MEMORANDUM

STENGEL, J.

I. INTRODUCTION

Plaintiff, Patti Kopko, brings this employment discrimination action against her former employer, Defendants Lehigh Valley Health Network and Lehigh Valley Hospital (collectively "LVH"), alleging that the defendants discriminated against her on the basis of age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. § 951 et seq., when they fired her. LVH moves for summary judgment on Kopko's ADEA and PHRA claims citing a legitimate non-discriminatory reason for Kopko's discharge, namely that she violated the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). For the reasons discussed below, I am granting the defendants' motion for summary judgment.

II. BACKGROUND¹

Plaintiff, Patti Kopko, was hired by LVH in 1991, when she began working as a hospital discharge planner. (Doc. No. 43-1 ¶¶ 33-34).² In 2005, Kopko's job title changed to case manager. (Id. ¶ 34). As a case manager, Kopko was a non-clinical employee at LVH. (Id. ¶¶ 37-38). In 2008, Elizabeth Prokurat became the supervisor of the case management department at LVH. (Doc. No. 44-2 ¶ 9).³ On April 14, 2009, while working as a case manager at LVH, Kopko received a phone call from her cousin, Ann Bavaria. (Id. ¶ 14). At the time, Ms. Bavaria was the Vice President of Marketing and Human Resources for New Tripoli Bank. (Doc. No. 43-1 ¶ 56). This phone call was about one of Bavaria's employees at New Tripoli Bank. (Id. ¶ 14). The bank employee, J.M., had been a patient at LVH several months earlier, but at the time of the phone call she was not a patient at LVH. (Id. ¶ 69; Doc. No. 44-2 ¶ 14). J.M. is not related to Bavaria in any way. (Doc. No. 43-1 ¶ 60).

During this phone call, Bavaria asked Kopko to provide her with the name of a specialist physician for J.M., claiming that J.M. had been experiencing abdominal pain. (Doc. No. 43-1 ¶ 68). As a case manager, Kopko would sometimes provide dischargeplans for patients who were leaving LVH. (Id. ¶ 71). Kopko was never involved in preparing J.M.'s discharge plan. (Id.) Bavaria told Kopko that J.M. knew she was calling, but Kopko never asked Bavaria whether J.M. had expressly authorized Bavaria to talk about J.M.'s medical condition. (Id. ¶¶ 74-77). In response to Bavaria's request, while on the phone, Kopko accessed J.M.'s health records electronically. (Id. ¶ 79). This included looking into J.M.'s laboratory blood results, MRI results, medical history, physicals, and operative reports. (Id. ¶ 80).⁴ After looking over J.M.'s medical records, Kopko provided Bavaria with the name of a hematology oncologist specialist. (Id. ¶ 84). Kopko based this upon her own "professional judgment" that the doctor she recommended would be best to meet J.M.'s needs. (Id. ¶ 88). Kopko does not have a degree in medicine and she has never received any formal medical or clinical training. (Id. ¶ 37).

Six days after Bavaria and Kopko's phone call, the New Tripoli Bank employee J.M. sent an email to her manager Bavaria. (Doc. No. 43-3, Ex. E). In the email, J.M. initially thanked Bavaria for "provid[ing] me with a referral for a second opinion on my health issues." (Id.) J.M. went on to write that J.M. was "uneasy" because Bavaria had told J.M. that "someone at LV Hospital" looked at J.M.'s liver enzyme numbers, MRI results, and blood work results. (Id.) J.M. finished the email by writing: "In the future I would appreciate you asking me first before having my medical history opened. I understand you are trying to help me and you are concerned for my wellbeing but I just feel my privacy should be considered." (Id.) A few days later, J.M. lodged a formalcomplaint with LVH through LVH's hotline telephone number. (Doc. No 43-3, Ex. L). The complaint, which was transcribed by LVH employee Kimberly Badillo, states:

Patient called office to report the following. A co-worker at her job is allegedly friends with an employee of the Network. Per the co-worker, this employee accessed her records and told the co-worker protected health information. Co-worker is undergoing disciplinary action at her job and patient wants to speak with the HIPAA officer and report this and have them check who may have been accessing her chart. Wants the HIPAA office to call her on her cell.

(Id.) In the complaint, J.M. further requested an acknowledgment, apology, clarification or explanation, and disciplinary action for this incident. (Id.) LVH's Compliance Officer, Carol Kreibel, subsequently followed up with J.M. and launched an investigation into J.M.'s complaint. (Doc. No. 43-1 ¶¶ 99-103). Through LVH's information technology ("IT") security and compliance teams' investigation, it was revealed that Kopko was the employee who had accessed J.M.'s medical records. (Id. ¶¶ 105-107). The IT investigation specifically revealed that Kopko had in fact accessed J.M.'s MRI results and blood work results. (Id. ¶ 117). Kopko does not dispute that she accessed J.M.'s medical information at the request of Bavaria or that she referred a hematology oncology specialist to Bavaria.⁵

Following this investigation, LVH had a meeting with Kopko on May 14, 2009. (Id. ¶ 120). At this meeting, LVH terminated Kopko for violating HIPAA. (Id. ¶ 120). Kopko's supervisor, Ms. Prokurat, as well as Dana Hacker, LVH's Human Resources Consultant, and Carol Kreibel, LVH's HIPAA Compliance Officer, were present at this meeting. (Doc. No. 43-2, Ex. C, Kopko Dep. 158:5-9). LVH's documentation of thismeeting indicates that Kopko admitted, during the meeting, that she did give J.M.'s medical information to Bavaria when they spoke over the phone. (Doc. No. 43-3, Ex. M; Doc. No. 44-9, Ex. G). According to Dana Hacker, when confronted with J.M.'s complaint, Kopko used an expletive and then said, "I admit I accessed the medical record and that the person that called me was her cousin." (Doc. No. 44-22, Ex. U, Hacker Dep. 26:1-5). Kopko does not deny that she accessed J.M.'s medical records at Bavaria's request. (Doc. No. 44-1 ¶¶ 148-149). Immediately after the meeting concluded, Kopko asked to be left alone in the room with her supervisor, Ms. Prokurat. (Doc. No. 43-2, Ex. C, Kopko Dep. 159:12-13). Once they were alone, Kopko said to Ms. Prokurat, "you know, you can make this go away." (Id. 159:15-16). Prokurat did attempt—without success—to convince LVH supervisors and LVH's legal counsel not to terminate Kopko. (Doc. No. 43-1 ¶¶ 131-133). Following her termination, Kopko appealed internally within LVH before commencing this action. (Id. ¶¶ 163-198).⁶ At the conclusion of this process, LVH affirmed its decision to terminate Kopko for a HIPAA violation. (Doc. No. 44-11, Ex. I). In doing so, Ms. Susan Lawrence, LVH's Vice President of Care Continuum at the time, stated among other things: "This was not a case of a secondary use or disclosure that cannot reasonably be prevented . . . . Rather, it was a willful act deliberately made in violation of policy and law, of which you were well aware." (Id.)

LVH maintains a HIPAA Confidentiality Policy. (Doc. No. 43-2, Ex. A). Kopko underwent HIPAA training at LVH in 2008. (Doc. No. 43-1 ¶ 30).The HIPAA policystates that "[u]nder no circumstances may an individual seek or use confidential information for personal gain or pass it on to any person outside Lehigh Valley Health Network, including family or friends, or even to other employees who do not need to know such information to carry out their duties." (Id. at p. 5, § IV(F)(2)). The policy's definition of confidential information includes a patient's financial records, medical records, lab test results, insurance information, and demographic information. (Id. at p. 2). The policy further states that "[i]t is unacceptable to reveal a patient's health information to another family member or friend without patient authorization." (Id. at p. 5, §§ IV(F)(3), (13)). The policy allows employees to divulge patients' confidential information to people over the phone only (1) with the patient's expressed permission; and (2) if the identity of the caller is established. (Id. at p. 5, § IV(F)(3)). If a LVH employee purposefully violates patient confidentiality, he or she is subject to immediate discharge. (Doc. No. 43-1 ¶ 23).

From 2008 through 2010, LVH terminated fifteen individuals for violating HIPAA and patient confidentiality. (Doc. No. 43-4, Ex. Z). Of these fifteen individuals, the majority were younger than forty years of age. (Id.) Nine were under the age of forty when fired. (Id.) The other six were over the age of forty. (Id.) Kopko nonetheless contends that she was treated less favorably than younger LVH employees who violated HIPAA. Kopko claims that, in early May 2009, she witnessed a former LVH employee, Holly Pettit, commit a HIPAA violation with no consequence or discipline from LVH. (Doc. No. 44-2 ¶¶ 33-39). According to Kopko, Pettit was under the age of forty at the time. (Id. ¶ 38). Kopko contends that she witnessed another LVH employee, LauraDobrosielski, send an email that contained a patient's name. (Id. ¶¶ 62-63; Doc. No. 43-1 ¶ 276). Kopko did not report this alleged HIPAA violation to anyone at LVH. (Doc. No. 43-2, Ex. C, Kopko Dep. 386:7-9). Mark Boyer, who was employed by Genesis Health Care, and often received patient referrals from Defendants, had access to LVH's protected patient information. (Doc. No. 44-2 ¶ 64). Believing this to be a HIPAA violation, Kopko complained to Defendants about it. (Id. ¶¶ 65-66). Another LVH employee who was under the age of forty "gave a patient's test results to a relative of the patient, without having first obtained any written or verbal" consent, and was allowed to resign instead of be terminated. (Id. ¶¶...