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Kirst v. Grays Harbor Community Hospital

United States District Court, W.D. Washington, Tacoma

January 27, 2015

MICHAEL J. KIRST, Plaintiff,
GRAYS HARBOR COMMUNITY HOSPITAL, a Washington non-profit corporation, Defendant.


BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on Defendant Grays Harbor Community Hospital's ("Hospital") motion for partial summary judgment (Dkt. 13). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion for the reasons stated herein.


On December 2, 2013, Plaintiff Michael Kirst ("Kirst") filed a complaint against the Hospital in Grays Harbor County Superior Court. Dkt. 1, Ex. 1. Kirst alleges that (1) he was discriminated against and wrongfully terminated because of his disability and the Hospital failed to provide reasonable accommodations for his disability, (2) he was discriminated against based on his age, and (3) he was wrongfully discharged in violation of public policy. Id.

On January 7, 2014, the Hospital removed the matter to this Court. Dkt. 1.

On November 20, 2014, the Hospital filed a motion for partial summary judgment on Kirst's disability claims and discrimination claims. Dkt. 13. On December 15, 2014, Kirst responded. Dkt. 19. On December 19, 2014, the Hospital replied. Dkt. 20.


From January 2005 until December 2011, Kirst worked for the Hospital as a nuclear medicine technologist. Dkt. 17, Declaration of Edward Taylor, Ex. A, Deposition of Michael Kirst ("Kirst Dep.") 100:2-6. His duties included performing nuclear medicine procedures using radioactive isotopes, operating related equipment, and providing associated patient care. Kirst Dep. 101:17-20; Kirst Dep., Ex. 19.

Kirst states that throughout the course of his entire employment at the Hospital he routinely pulled and reviewed films and medical reports for patients with whom Kirst had no involvement at all in the provision of care. Kirst Dep. 21:1-2, 68:2-7, 89:4-7, 134:2-136:12, 142:5-8, 148:21-149:19; Kirst Dep., Exs. 27, 28. Some of the patients in question were not only patients of the Hospital, but also of Grays Harbor Imaging, a separate, off-site entity that provided the Hospital's records-storage services and is partially owned by the Hospital. Dkt. 14, Declaration of Julie Feller ("Feller Dec.") ¶ 3. Kirst admits that these patients had no idea he was reviewing their protected health information. Kirst Dep. 146:3-6. Kirst claims to have done this for his own edification. Kirst Dep. 21:5, 88:1-5, 89:5-7. Kirst admits to doing this "at least" a thousand times before he was caught; he even told the Hospital during its investigation that "I did it a thousand times more than what you found." Kirst Dep. 148:23-149:18. Kirst also admits that he did this entirely on his own, without any supervision, solely on his own authority. Kirst Dep. 92:25-93:7.

Kirst stated that he was unaware that it was a violation of the Health Insurance Portability and Accountability Act ("HIPAA") to access protected health information in this fashion. Kirst Dep. 75:6-12, 79:25-80:3. Kirst, however, attended multiple HIPAA training sessions during his employment, including a test on HIPAA procedures that Kirst took just days before the Hospital discovered Kirst's actions. Kirst Dep. 84:6-85:21; Kirst Dep., Ex. 15. Moreover, on October 22, 2010, the Hospital mailed Kirst a copy of its confidentiality policy, which provides that discipline, up to and including discharge, will be imposed for violations. Feller Dec. ¶ 4; Kirst Dep., Ex. 18.

Kirst's misconduct was discovered on the morning of October 19, 2010, by Eric Timmons ("Timmons"), another nuclear medicine technologist at the Hospital and one of Kirst's co-workers. Dkt. 15, Declaration of Eric Timmons ¶ 2. Timmons reported the information to his manager, and, eventually the Hospital's Risk Management department initiated an investigation. Id. ¶¶ 4-5. During the investigation, Jonathan Wright, the administrator of the PACS system in which the records are stored, discovered numerous instances in the fall of 2011 where access logs showed Kirst accessing films and reports of patients with whom Kirst had no medical involvement. Dkt. 16, Declaration of Jonathan Wright ¶¶ 2-3; see also Kirst Dep., Exs. 27, 28.

After the investigation, Blake Neeley ("Neeley"), the Director of Imaging Services, and Julie Feller ("Feller"), the Hospital's Human Resources Executive Director, interviewed Kirst. Kirst Dep. 133:4-16; Feller Dec. ¶ 6. Kirst's union representative, John Warring, was also present. Kirst Dep. 133:8-12. Neeley and Feller told Kirst that the Hospital had audited the PACS system for the past three weeks and discovered that Kirst had viewed the records of patients that he had no reason to review; they asked him to explain why he had done this. Kirst Dep. 20:12-17, 134:13-18; Feller Dec. ¶ 7. Kirst admitted that he had looked at these films and records and stated that he had done so for his own "education." Kirst Dep. 21:1-5, 134:19-23; Feller Dec. ¶ 8.

The Hospital decided to punish Kirst by giving him a thirty-day unpaid suspension, on the condition that Kirst sign a Last Chance Agreement committing, under penalty of immediate discharge, not to "engage in conduct that constitutes a violation of HIPAA or the Hospital's policies and directives regarding HIPAA by accessing patient records without a permitted purpose under HIPAA (e.g., a need to access in order for [Kirst] to perform his job duties)." Feller Dec. ¶ 11; Kirst Dep., Ex. 11. The Hospital also decided that if Kirst was unwilling to agree to the commitments in the Last Chance Agreement, he would be fired. Feller Dec. ¶ 12. Kirst chose not to sign the Last Chance Agreement. Kirst Dep. 74:7-76:7, 137:2-24. As a result, the Hospital terminated Kirst's employment effective December 15, 2011. Feller Dec. ¶ 13; Kirst Dep., Ex. 26.

The Hospital contends that it has fired numerous other employees in recent years for HIPAA and Confidentiality Policy violations. Feller Dec. ¶ 14. According to the Hospital, these other employees who were fired engaged in conduct that was "far less egregious than that of Kirst...." Id. ¶ 15. Specifically, the Hospital fired Terry Cunningham after she was overheard speaking with one patient about the medical condition of another. Id. The Hospital fired Ruth Dixon after learning that she had accessed three different patients' emergency records when she had no business reason to do so. Id. ¶ 16. The Hospital fired Jennifer Glerup after an audit revealed that she had accessed a particular patient's record five times without a business reason to do so. Id. ¶ 17. The Hospital fired Janice Matthyssens after receiving a complaint that she had given out confidential test results over the telephone. Id. ¶ 18. The Hospital fired Deborah Pena after it received a complaint that she had accessed patient admissions records and shared some patient information with others. Id. ¶ 19. Finally, the Hospital ...

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