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Coleen A. Mcneill v. Kaiser Foundation Hospitals

May 8, 2013


The opinion of the court was delivered by: J. Michael Seabright United States District Judge



On November 7, 2011, Plaintiff Coleen A. McNeill ("Plaintiff") filed this action against her former employer, Defendant Kaiser Foundation Hospitals ("Defendant"), asserting claims for violations of the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, the Hawaii Whistleblower's Protection Act (the "HWPA"), Hawaii Revised Statutes ("HRS") § 378-61, and for state law torts concerning her alleged disparate treatment and constructive discharge due to her race and disability, and for retaliation.

On September 6, 2012, the court granted in part Defendant's initial Motion for Partial Summary Judgment, dismissing as unexhausted claims for disability discrimination and for retaliation for reporting allegedly illegal Medicare activities. See Doc. No. 49, at 2, 2 n.1. Currently before the court is Defendant's Motion for Summary Judgment on all Remaining Claims. Based on the following, the court GRANTS in part and DENIES in part Defendant's Motion for Summary Judgment.


A. Factual Background

In February 2004, Plaintiff was hired to work as a Continuing Care Coordinator ("CCC") in Defendant's Utilization Management ("UM") Department. See Doc. No. 87, Def.'s Concise Statement of Facts ("CSF") ¶ 1.*fn1 CCCs ensure appropriate utilization of services for patients, from pre-admission through post-hospitalization. Id. ¶ 3. CCCs' patient loads change, depending on admissions and discharges, and physicians' patient assignments. Id. ¶ 4. The following facts are relevant to Plaintiff's claims at issue in this Motion:

1. Plaintiff's Complaints in 2010

Plaintiff asserts that in April 2010, a social worker employed by Defendant completed a Medicaid application for one of Plaintiff's patients andomitted several intravenous ("IV") medications that the patient was receiving, which erroneously placed the patient in a lower level of care ("LOC"). Doc. No. 112, Pl.'s Decl. ¶ 11. Plaintiff questioned staff members regarding this matter, and ultimately refused to sign the Medicaid application unless it properly listed all IV medications administered to the patient. Id. ¶¶ 12-14. On June 25, 2010, Plaintiff reported this incident to the State of Hawaii Attorney General and to Defendant's Moral and Ethics Committee. Id. ¶ 15. On June 29, 2010, Plaintiff discussed this incident with the Honolulu Medical Fraud Unit and Defendant's compliance department. Id. ¶ 16.

On July 12, 2010, Plaintiff disagreed with a treating physician regarding another patient's LOC, and later told the Medicaid placement specialist working on the patient's Medicaid application that the patient's appropriate LOC was to a Skilled Nursing Facility ("SNF"). Id. ¶ 20. Despite this information, the placement specialist documented the patient's LOC as an Intermediate Care Facility. Id. As a result, on July 13, 2010, Plaintiff spoke to the Honolulu Medicaid Fraud Division about this incident, and was informed that an investigator was assigned to investigate her allegations. Id. ¶ 22.

On July 13, 2010, Plaintiff left work on temporary disability due to work-related stress.*fn2 Id. On October 14, 2010, Plaintiff filed an HCRC/EEOC Charge alleging race discrimination. See Doc. No. 87-26, Ex. 10 of Def.'s Ex. 16.

2. Plaintiff's Return to Work

Plaintiff returned to work on November 1, 2010, at which time she asserts that her caseload increased dramatically when she was assigned more patients than normal with a higher LOC than is typically assigned to a CCC. Doc. No. 112, Pl.'s Decl. ¶¶ 24-25. Plaintiff also asserts that she "was scheduled to work more holidays than any other CCC RNs, which all work assignments were made by my supervisor."*fn3 Id. ¶ 17. Plaintiff further asserts that "during this time period," a physician partially completed various medical orders, signed them, and instructed Plaintiff to compete them even though it was outside the scope of her practice as a registered nurse. Id. ¶ 26.

On February 25, 2011, UM Manager Kon gave Plaintiff a written warning for taking thirteen unscheduled absences from work during the period of November 20, 2010 through February 11, 2011. Id. ¶ 27. This written warning appears to be the culmination of Plaintiff having numerous absences between 2009 and 2011. For example, in 2009, Plaintiff called in sick twenty-five times, which resulted in Kon noting this absenteeism in Plaintiff's 2009 Performance Appraisal and advising Plaintiff to decrease her sick days to the regional average of nine days per year. Doc. No. 87, Def.'s CSF ¶ 8. By mid-June 2010, however, Plaintiff had already accumulated twelve absences. Id. On June 17, 2010, Kon and Josephina Idica, the Senior Employee and Labor Relations Consultant, verbally warned Plaintiff that her attendance must improve and that further poor attendance would lead to formal discipline. Id. ¶ 9. In total for 2010, Plaintiff had fifteen unscheduled absences. Id. ¶ 11.

During the week of March 30, 2011 through April 6, 2011, a physician ordered the discharge of over six patients under Plaintiff's care. Doc. No. 112, Pl.'s Decl. ¶ 28. Plaintiff asserts that this number of discharges was more than twice the normal number assigned to any other CCC in a one-week period, and the amount of work was excessive because each patient needed placement into a SNF. Further, on April 10, 2011, Plaintiff received a note from her supervisor stating that the paperwork was missing, requiring Plaintiff to redo much of her work. Id. ¶¶ 28, 30.

On April 11, 2011, Kon provided Plaintiff a self-evaluation form to complete even though her annual evaluation had taken place in February 2011. Id.

¶ 31. According to Plaintiff, most of the questions did not apply to Plaintiff's position as a CCC. Id. ¶ 31. In any event, all CCCs receive blank self-evaluation forms to complete. Doc. No. 87, Def.'s CSF ¶ 5.

According to Plaintiff, during an April 27, 2011 staff meeting, Kon advised the CCCs that Defendant would institute a new policy regarding the use of Parental Control Analgesic ("PCA") pumps in relation to terminally ill "acute" patients transferred to hospice facilities. Doc. No. 112, Pl.'s Decl. ¶ 32. Under the new procedure, Defendant would provide its own PCA pumps and narcotic medications to transferring "acute" patients instead of requiring the hospice facilities to provide their own PCA pumps and medications prior to transfer. Id.

On April 28, 2011, Plaintiff was assigned as discharge coordinator for an "acute" patient requiring transportation to a hospice facility, which required implementation of the new procedure. Id. ¶ 33. Because Plaintiff believed the new procedure lacked accountability for unused narcotics and fell below the proper medical standard of care, she refused to sign the transfer. Id. ¶ 34. When confronted by the treating physician, Plaintiff "became very stressed about the entire situation," believing that Defendant was compelling her to violate the standard of ...

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