Opinion
Civil Action CV-13-176
11-20-2015
JANET ENOS, Plaintiff v. ORTHOPEDIC & SPINE PHYSICAL THERAPY OF L/A, INC., Defendant
JUDGMENT
MaryGay Kennedy Justice, Superior Court
On February 17 and 18, 2015, a bench trial was held on plaintiff, Janet Enos, complaint that her employer, Orthopedic & Spine Physical Therapy of L/A, Inc. ("OSPT"), unlawfully terminated her employment in violation of the Maine Whistleblower's Protection Act, 26 MRS §833(1).
The court apologizes to the parties and counsel for the extended time it has taken to render judgment.
The court's findings of fact and conclusions of law are based upon the court's review and consideration of the court's file, including but not limited to the pleadings, the court's order on Defendant's motion to dismiss and counsels' trial briefs. The court has also considered the parties' testimony, the 7/25/14 deposition transcript of Teixeira, the exhibits presented at trial (except Nos. 16, 29, 30, 56, 59, 63, 68, 76-87, 105 and summary included in exhibit No. 107), the court's trial notes, the Whistleblower's Protection Act, 26 M.R.S. §831, et seq. and the relevant case law.
OSPT is an incorporated, independent outpatient physical therapy practice, owned by Shan Teixeira ("Teixeira"). Between February 2007 and April 2013, OSPT had two employees: Teixeira, the physical therapist and Janet Enos ("Enos") the receptionist/office manager. Teixeira terminated Enos' employment with OSPT on April 19, 2012.
As the only health care provider, Teixeira was responsible for seeing and treating patients, completing all patient and treatment documentation, patient "in and out" times as well as diagnosis and billing codes. Teixeira's duties also included supervising Enos and preparing her annual reviews and evaluations.
As the receptionist/office manager, Enos was responsible for answering the phones, greeting patients, entering patient insurance and demographic information, setting up patient files, sending bills to outside services, ordering supplies and general office maintenance. Enos was not responsible for, nor did she ever provide or prepare, patient treatment or treatment notes. She never determined a patient's diagnosis or billing codes. And, she never recorded "in and out" times spent with patients.
On at least one occasion, however, Enos did point out that Teixeira had billed too little and he went back and changed it.
For the first two years, Teixeira and Enos appear to have worked fairly well together at OSPT. In her 2007 and 2008 reviews, Teixeira wrote that Enos was "overall doing an excellent job with office work, billing, keeping meticulous track of our finances, and with assisting with many other ancillary projects and tasks at OSPT. He also listed areas for improvement including, but not limited to, "continue to learn more about billing and insurance coverage, " and "stay abreast on insurance changes ([e.g.] reading mail flyers, and periodically reading updates online)." In 2008 Teixeira added, "Keep closer track of active/inactive patients." Enos was given an 8% pay raise and an additional week of paid leave in 2007 and a 4% pay increase in 2008. See Joint Exhibits 64 and 65.
In his 2008 review, Teixeira did not describe Enos' tracking of OSPT's finances as "meticulous."
The first indication that there was a problem in their working relationship arose after Enos' 2008 review and 4% pay increase. Enos had expected she would receive a greater salary increase. Instead of discussing the matter with Teixeira, Enos simply stopped speaking to him. When Teixeira learned the reason for Enos "silent treatment, " he started having concerns that her conduct was "unprofessional" and "disrespectful." Despite these concerns, Teixeira continued to appreciate Enos' clerical skills.
Enos stopped saying "Good Morning" and "Good Night" to Teixeira on other occasions as well. See Joint Exhibit 21.
Teixeira asked Enos to attend a one-day continuing education course on physical therapy coding and billing on August 14, 2009. According to Enos, she found the course helpful. She was able to understand and apply the reading, including Medicare and MaineCare rules and regulations, to the practical aspects of her job.
On August 18, 2009, Teixeira asked Enos about the course. She provided him with a page of bullet points. She wrote, in part, "No more free or reduced visits!" "All copays must be paid (including your girlfriend)..." "People with health insurance cannot have the self pay option." See Joint Exhibit 2. Enos explained that her purpose in preparing the written summary was to bring to Teixeira's attention that certain things OSPT did in the practice violated Medicare and MaineCare rules and regulations. She also wanted to let him know that OSPT needed to develop written policies that would apply to all patients.
Teixeira was offended by the manner in which Enos prepared the summary. He also had questions about some of her comments, particularly those pertaining to pro bono work. He talked to other physical therapists and learned that, as long as OSPT is uniform in how it is done, he could continue to do some pro bono work. Teixeira tried to speak with Enos about what he had learned from the other physical therapists, but Enos did not want to talk about it. She said it had to stop because "it's illegal." Teixeira did not understand why Enos simply dismissed out of hand the information he relayed to her. He concluded she was attempting to dictate policy by telling him what OSPT could and could not do going forward.
On August 19, 2009, Teixeira prepared a written response to Enos' bullet points. While his note admonished her for trying to institute and mandate new policies, his primary focus was her "approach and attitude, " which he found to be disrespectful and overstepping boundaries. He reminded her that he had brought these concerns to her in the past and referenced the "Send Out Cards." (Emphasis supplied.) He wrote, "I do not mind that you expressed a disfavor for this approach, in fact, I appreciate and value your input (although it may not always appear that way). What I do not appreciate is the attitude and persistent negativity and resistance that have followed." See Joint Exhibit 4.
Teixeira wanted Enos to prepare "Send Out Cards, " a marketing tool, for patients. For some reason, perhaps because she thought it was a HIPAA violation, Enos expressed her dislike of the idea and said it was "stupid." Unbeknownst to Teixeira, Enos subsequently contacted the Consumer Mediation Division of the Office of the Attorney General to inquire about the practice and received a response from AAG Paul Gauvreau, dated September 4, 2009. See Joint Exhibit 10.
Teixeira referenced other conduct that caused him concern. He wrote, "[I]f I ask you to do something...you come back with "no you can do it." He also wrote, "[W]hen you do as you please and disregard my clear instructions you are being disrespectful."
Teixeira asked her to keep discs in the safe with the door closed but unlocked. Enos did not do as he asked. See Joint Exhibit 4, 8 and 9.
Despite finding the manner in which Enos expressed her views to be "rude, " "dismissive" and "condescending, " Teixeira wrote, "I will look over some of your concerns and the info you provided and we can further discuss policy changes I might consider in the immediate future. He explained that he was trying to coach Enos to get her to be more respectful.
Unfortunately, Enos was not receptive. She became defensive and withdrawn. ' Again she refused to talk to him, this time for months. On one occasion when they did speak, Enos advised that she had spoken to an attorney. Teixeira asked her, "Why?" Enos told him it was because he makes her do "illegal" things. When he asked her, "Like what?" Enos said, "You don't want to know."
Teixeira continued to try and "coach" Enos. In her 2009 review, dated March 9, 2010, Teixeira acknowledged Enos "Particular strengths" and "Areas Improved." Among other things, he wrote that Enos was "Doing [a] great job with learning and doing more with billing, and with keeping track of finances/taxes, " as well as, "Staying abreast on insurance changes, ..."
In "Areas to Continue to Improve, " Teixeira suggested that Enos, "work on adopting a more positive 'can do' attitude, " and, that she, "improve communication and interpersonal relationship with boss/coworker." He also noted that Enos was recently given 2 hours off per week with pay (pay rate adjusted) amounting to an additional 12 days off per year." See Joint Exhibit 66.
Notwithstanding Teixeira's effort, his working relationship with Enos remained strained and they continued to have conflict. The evidence presented by Enos, replete with her handwritten notes, clearly demonstrates that she had problems with how OSPT conducted business and that she had "lost respect" for Teixeira. Neither the problems nor her feelings improved. See Exhibits 20 and 21.
Some, but not all examples include: Enos had issues with where Teixeira wanted her to park. She would bring nails and other debris from the back parking lot and leave them on his desk. She was indignant when an article of his clothing would end up in the laundry she did for the practice. She did not want him to dispose of the photocopier because it contained confidential data. She was concerned when he offered her long term disability coverage and made him put in writing that he would be liable if there were tax implications for her as the result. Even when Teixeira brought her corroborating information about disposing of the photocopier and disability insurance, Enos was rude and did not believe him. Enos did not want OSPT to put her name on collection letters. She made comments when Teixeira arrived to work a few minutes late. After March 2010, Enos did not receive another formal review. She also did not receive another raise. Teixeira felt Enos had given up and that she was not receptive to any of his comments.
See Enos 2009 notes, Exhibits 5-9 and 11-13; her 2010 notes, Exhibits 14 and 15; 2011 notes, Exhibits 18, 19, 22 and 25; and, her 2012 notes, Exhibits 38, 44 and 45.
Similarly, the evidence presented by OSPT, both written and anecdotal, clearly demonstrates that Teixeira had problems with how Enos communicated, her lack of respect and her insubordinate behavior. Neither the problems nor his impressions of Enos behavior towards him improved. See Exhibits 20 and 49.
Teixeira realized that he should terminate Enos for her rude behavior and insubordination, but he was afraid his small practice would have struggled without someone to perform the clerical work. While he thought Enos might quit because she was so unhappy, he believed he needed to find an appropriate replacement for her before letting her go. Unfortunately, Teixeira did not have time to find a replacement for Enos. Teixeira was working to complete his doctorate in physical therapy and his graduate studies took up most of his spare time until 2012.
After Teixeira finished his doctorate, he began to look for a candidate to replace Enos. He found a suitable replacement when an acquaintance agreed to take over the office manager position. Teixeira terminated Enos employment with OSPT on April 19, 2012.
Unbeknownst to OSPT and Teixeira, in March 2011, and again in January 2012, Enos reported OSPT to the oversight bodies for both MaineCare and Medicare. She had numerous communications with MaineCare, Medicare, and even the Governor's office about what she perceived to be fraud on the part of OSPT. She claimed that OSPT was intentionally overbilling the insurers and charging for more time than Teixeira actually spent treating patients.
MaineCare authorities conducted an audit of OSPT beginning in September 2011. OSPT complied with all document requests and a sight visit was conducted on October 6, 2011. During the course of the audit, the investigator sampled 100 patient files and examined OSPT's computer system. No evidence of fraud was detected but the investigator did find that some of OSPT's documentation was lacking. Specifically, notations of the actual time spent with patients and the potential for rehabilitation were either not included or provided insufficient information. In addition, it was determined that OSPT had billed more than the acquisition cost for certain supplies.
The audit was concluded and OSPT was issued a notice of violation on October 13, 2011. OSPT requested an informal review of the audit, which was completed on May 1, 2012. On or about June 7, 2013, OSPT received the final recoupment amount that it was required to pay - less than $2,000 for the documentation issues and less than $200 for billing more than the acquisition cost of medical supplies. OSPT made arrangements to pay the recoupment.
See Joint Exhibits 26 - 28, 31- 33, 35 -36, 55, and 57 - 58 and 60.
While the audit was pending and prior to her termination, Enos reported to the MaineCare and Medicare authorities that Teixeira told her that they would have to be careful to record the patient "in and out" times to insure compliance going forward. Enos interpreted Teixeira's comment to mean he wanted her to go in and change existing records. Teixeira denied Enos interpretation of his comment. He explained that he raised the issue so Enos would remind him to document "in and out" times in the future. He also pointed out that at the time Enos made this particular accusation MaineCare had already selected the patient record samples for review. Changing or adding "in and out" times would have had no impact on the outcome of the audit. In addition, Teixeira reiterated that Enos never provided patient treatment; she never prepared treatment notes; she did not determine any patient's diagnosis or billing codes; and, Enos never recorded "in and out" time spent with patients.
OSPT and Teixeira did not learn that Enos had reported or complained about OSPT to MaineCare or Medicare until well after her employment was terminated. OSPT and Teixeira had no idea that Enos had ongoing communications with MaineCare and Medicare throughout the audit process. OSPT and Teixeira did not know that Enos continued her communications with them even after her employment was terminated on April 19, 2012, more than seven months after the MaineCare notice of violation issued.
See Joint Exhibits 21, 24 -25, 34, 37, 39, 40 -43, 50, 53, and 62.
OSPT claims Enos' employment was terminated due to her long history of inappropriate and disrespectful workplace conduct; and, despite numerous warnings and efforts to coach Enos to be more professional and respectful in the workplace, she simply showed no signs of improvement. Enos claims OSPT's justifications for her termination are pretextual. She claims she was terminated because she refused to comply with Teixeira's "illegal" requests; and, because she reported what she perceived to be, or what actually were, illegal activities on the part of OSPT.
Enos filed a complaint with the Maine Human Rights Commission ("MHRC") claiming discrimination based on retaliation. On November 13, 2013, the MHRC issued Enos a right to sue letter.
DISCUSSION AND CONCLUSIONS
The Maine Whistleblower's Protection Act ("WPA"), 26 M.R.S. §§ 831, 833(1)(A), and the Maine Human Rights Act ("MHRA") 5 M.R.S. § 4551, et seq., prohibit the discharge of an employee "because ... [t]he employee, acting in good faith, ... reports ... to the employer or a public body what the employee has reasonable cause to believe is a violation of a law or rule adopted by the laws of this State ... or the United States." The WPA also prohibits the discharge of an employee who, in good faith, refuses "to engage in activity that would be a violation of a law or rule adopted under the laws of this State ... or the United States." 26 M.R.S. § 833(1)(D). "There are three elements to a claim of unlawful retaliation: (1) the employee engaged in activity protected by the statute; (2) the employee was the subject of an adverse employment action; and (3) there was a causal link between the protected activity and the adverse employment action." Caruso v. Jackson Lab., 2014 ME 101, ¶11, 98 A.3d 221.
In cases such as this, the court must "apply a three-step burden-shifting analysis to determine whether (1) the employee has presented prima facie evidence of discrimination; (2) the employer has presented prima facie evidence of a legitimate nondiscriminatory reason for the adverse action; and, in response, (3) the employee has presented prima facie evidence that the employer's proffered reason is pretextual or untrue." Fuhrmann v. Staples the Office Superstore E., Inc., 2012 ME 135, ¶¶13 & 14, 58 A.3d 1083. This analytical framework addresses the parties' burdens of production, but not the burden of persuasion. Id. ¶ 13. At all steps, the plaintiff retains the ultimate burden of persuasion on the question of whether unlawful discrimination occurred. DiCentes v. Michaud, 1998 ME 227, ¶ 16, 719 A.2d 509. The court addresses each step in turn.
The Law Court recently held that the three-step, burden-shifting analysis was unnecessary in WPA retaliation cases on summary judgment and that it would no longer apply the burden-shifting analysis to WPA cases on summary judgment. Brady v. Cumberland County, 2015 ME 143, ¶ 39, ___ A.3d ___. The Law Court expressly stated that Brady did not present the Court with an opportunity to address whether the burden-shifting analysis remains a useful analytical tool for trial. Id. ¶ 39 n.9. Therefore, under prior precedent, the burden-shifting analysis continues to apply in this case.
I. Enos' prima facie evidence of unlawful retaliation
As discussed above, in order to satisfy her burden on the first step, Enos must produce prima facie evidence of each element of her WPA claim: "(1) the employee engaged in activity protected by the statute; (2) the employee was the subject of an adverse employment action; and (3) there was a causal link between the protected activity and the adverse employment action." Caruso, 2014 ME 101, ¶11, 98 A.3d 221. The court may not enter judgment against an employee at this stage merely on the grounds that the plaintiff failed to satisfy her burden of persuasion because of an absence of direct evidence of unlawful discrimination. Human Rights Comm'n v. City of Auburn, 408 A.2d 1253, 1262 (Me. 1979). If the employee produces evidence sufficient to support an inference of unlawful discrimination, then the employee has met her burden of establishing a prima facie case of unlawful discrimination. Id.
Here, Enos' actions were clearly protected by the WPA, which prohibits the discharge of an employee who, in good faith, reports to an authority or the employer what the employee has reasonable cause to believe is a violation of the law or refuses to engage in activity the employee reasonably believes is a violation of the law. 26 M.R.S. § 833(1)(A), (D). Through the one-day course and her work at OSPT, Enos was knowledgeable about Medicare and MaineCare rules. Thus, Enos had reasonable cause to believe OSPT violated the law. Enos reported her concerns about OSPT's practices to Teixeira. Enos also reported OSPT to the oversight bodies for both MaineCare and Medicare and had numerous communications with MaineCare, Medicare, and the Governor's office about what she perceived to be fraud by OSPT. MaineCare found no evidence of fraud, but ultimately did issue OSPT a notice of violation. Enos was also undisputedly subject to an adverse employment action when her employment was terminated.
However, Enos has failed to present sufficient prima facie evidence of a causal link between her reporting of OSPT to MaineCare and Medicare and her discharge. "To demonstrate a causal link, the plaintiff must show that the protected activity (whistleblowing) was a substantial, even though perhaps not the only, factor motivating the employee's dismissal." Caruso, 2014 ME 101, ¶13, 98 A.3d 221 (internal quotation marks and citation omitted). Temporal proximity of the adverse employment action to the employee's protected activity is circumstantial evidence that can give rise to an inference of a causal connection sufficient to establish causation for the prima facie stage of the analysis. LePage v. Bath Iron Works Corp., 2006 ME 130, ¶ 19, 909 A.2d 629. However, in order to infer a causal connection, there must be evidence that the employer was aware of the employee's protected activity. Daniels v. Narraguagus Bay Health Care Facility, 2012 ME 80, ¶ 21, 45 A.3d 722; see also Fuhrmann, 2012 ME 135, ¶ 16, 58 A.3d 1083.
Here, OSPT and Teixeira were not aware that Enos had reported OSPT to MaineCare or Medicare until well after her termination. OSPT and Teixeira were also unaware that Enos had communicated with MaineCare, Medicare, and the Governor's office. Because OSPT and Teixeira were not aware of Enos' reports to MaineCare or Medicare or her communications at the time of her termination, the court cannot infer that Enos' reporting of OSPT was substantial factor in her termination or the existence of causal connection. Therefore, Enos has failed to establish a prima facie case of unlawful retaliation for reporting OSPT to MaineCare and Medicare under the WPA.
Even if the court were infer a causal link between Enos' reporting of OSPT to MaineCare and Medicare and her termination and find that Enos has established a prima facie case, Enos' WPA claim of unlawful retaliation for reporting OSPT to MaineCare and Medicare would still fail to meet her burden of persuasion on the final step of the burden-shifting analysis as discussed below.
Enos has produced enough circumstantial evidence to at least raise an inference of a causal connection between her reporting of her concerns to Teixeira and her refusal to engage in what she believed to be illegal conduct and her termination. As previously discussed, the evidence produced by Enos at this first step need not be persuasive in order to meet her burden. Human Rights Comm'n, 408 A.2d at 1262. The evidence need only support an inference of a causal connection. M A lack of temporal proximity between the protected activity and the adverse employment may not meet the burden of persuasion, but a lack of temporal proximity does not defeat the inference of a causal connection at the first step of the burden-shifting analysis. Brady, 2015 ME 143, ¶ 23, ___ A.3d ___.
In August 2009, following her attendance at a course on physical therapy coding and billing, Enos provided Teixeira with a written summary of certain practices at OSPT that Enos believed violated Medicare and MaineCare rules and regulations. On another occasion, Enos told Teixeira that she spoke with an attorney because Teixeira made her do "illegal" things. Further, during MaineCare's audit of OSPT in 2011, Enos believed the Teixeira had impliedly asked her to alter the "in and out" times logged in patient records. Enos' employment was terminated following these incidents on April 19, 2012. Despite a lack of temporal proximity, Enos has produced a minimally sufficient basis for the court to infer a causal connection between Enos' reporting of her concerns about OSPT's practices to Teixeira and her refusal to engage in illegal activity and her termination. See Brady, 2015 ME 143, II 23-24, ___ A.3d ___. Therefore, Enos has met her burden of producing evidence of a prima facie case of retaliation for reporting violations of the law to OSPT and refusing to engage in illegal conduct.
II. OSPT's legitimate, non-discriminatory reasons for Enos' termination
Regarding the second step of the burden-shifting analysis, OSPT presented both written and anecdotal evidence that Teixeira had problems with how Enos communicated, her lack of respect, and her insubordinate behavior. Therefore, OSPT has produced sufficient evidence of legitimate, non-retaliatory reasons for Enos' termination.
III. Enos' evidence that OSPT's proffered reasons are pretextual or untrue
Enos' WPA claims fail the final step of the burden-shifting analysis. After the employer proffers evidence of legitimate, non-discriminatory reasons for the adverse employment action, the employee must "persuade the factfinder that there was, in fact, a causal connection between the protected activity and the adverse employment action." DiCentes, 1998 ME 227, ¶ 16, 719 A.2d 509. To meet this burden, the employee must produce persuasive evidence that employer's proffered reasons are a pretext or persuade the factfinder that the inference of discrimination arising from the employee's prima facie case is so strong that employer's proffered reasons must be untrue. Human Rights Comm'n, 408 A.2d at 1262.
For the following reasons, Enos' has failed to persuade the court that OSPT's reasons for her termination are untrue. Foremost, OSPT and Teixeira were unaware of Enos' reports to MaineCare and Medicare and her ongoing communication with both. Second, there is a significant gap in time between Enos' delivery of her written summary of the OSPT practices she believed to be illegal to Teixeira in August 2009 and her termination in April 2012. This gap in time diminishes the persuasiveness of Plaintiff's evidence of retaliation. Third, the court finds Enos' advisement to Teixeira that she consulted an attorney because Teixeira made her do "illegal" is insufficient to prove her claim of retaliation for reporting illegal activity. When Teixeira asked Enos to explain what illegal activity she was referring to, Enos said, "You don't want to know." Enos' lack of explanation for her accusation makes this evidence less persuasive and fails to over come the OSPT's evidence of legitimate, non-discriminatory reasons for her termination. Lastly, in light of Teixeira's explanation, the court is not persuaded that Teixeira's statement that they would have to be careful to record the patient "in and out" times to ensure compliance going forward was a request for Enos to alter the patient records. Also, Enos failed to present persuasive evidence that she actually refused to engage in Teixeira's alleged illegal request. Thus, Enos has not produced sufficient evidence to persuade the court that she was terminated for reporting what she believed was illegal activity to her employer and refusing to engage in illegal activity. Therefore, Enos' evidence in support of her WPA retaliation claims case is not strong enough to persuade the court that OSPT's reasons for her termination are untrue.
Furthermore, none of the evidence proffered by Enos' persuades the court that OSPT's non-discriminatory reasons are a pretext. Enos' evidence fails to contradict OSPT's evidence, which clearly demonstrates that Teixeira had problems with Enos' communication, lack of respect, and insubordinate behavior, and that neither those problems nor Enos behavior improved prior to her termination. The court found Teixeira's testimony to be credible that he had decided to terminate Enos prior to the MaineCare audit but was concerned the practice would suffer without someone to perform clerical work; and, he did not have time to search for Enos' replacement until completing his doctorate in 2012.
Furthermore, evidence in the record shows that Teixeira considered Enos' concerns about OSPT's practices and attempted to address them. Following Enos' delivery of her written summary on August 18, 2009, Teixeira spoke with other physical therapist about OSPT's practices. Teixeira also prepared a written response to Enos's concerns, in which he reminded Enos that he had brought these concerns to her in the past. Teixeira also stated that, while he disfavored Enos' approach, he appreciated and valued her input. Teixeira stated that he would look over some of Enos' concerns and the information she provided and discuss possible policy changes with her in the future. This evidence, which shows Teixeira acknowledged Enos' concerns and attempted to address them, weighs against Enos' claims that OSPT's reasons for her termination were a pretext for retaliation. On balance, Enos' has failed to meet her ultimate burden of persuading the court that OSPT's legitimate non-discriminatory reasons for terminating her employment are untrue or a pretext.
Based on the foregoing, the court finds that plaintiff Janet Enos has failed to prove her claim for unlawful retaliation under the Maine Whistleblower's Protection Act.
Judgment is entered in favor defendant Orthopedic & Spine Physical Therapy of L/A, Inc.
The Clerk is directed to enter this Order on the civil docket by reference pursuant to Rule 79(a) of the Maine Rules of Civil Procedure.