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Rorebeck v. Franciscan Health

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

April 1, 2019

SARA ROREBECK, Plaintiff,
v.
FRANCISCAN HEALTH et al., Defendants.

          ORDER

          RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         THIS MATTER is before the Court on Defendants' Motion to Dismiss. Dkt. #34. Plaintiff Rorebeck worked as a nurse for Defendant Franciscan Health from July, 2001, through 2016, at St. Joseph's Hospital in Tacoma. Am. Compl., Dkt. #33 at 5. She belonged to a union and her employment was governed by a collective bargaining agreement.[1]

         Rorebeck alleges she told Franciscan that she was disabled by back problems, and that she required reasonable (but undescribed) accommodations. Id. She claims she provided medical records in support of this request, but that Franciscan made derogatory comments, joked, and laughed at Rorebeck's medical concerns before dismissing her request entirely. Id.

         Rorebeck also claims she once overheard her manager, Defendant Cook, disclosing a co-worker's protected private health information to other employees, in violation of the Health Insurance Portability and Accountability Act (HIPAA), and in violation of Franciscan's internal policies and procedures. Id. at 7. She contends that employees are not allowed to disclose anyone's protected medical information and are directed to report violations to Human Resources under Franciscan's policies. Id. Rorebeck reported these violations to an HR employee via email, assuming they would stay confidential. Id. But a co-worker, Defendant Doyle, told Rorebeck that she knew Rorebeck reported Cook's violations the following week. Id. at 8. Rorebeck argues that she was targeted for reporting these violations. Specifically, she asserts that Cook began “micro-managing” her actions and disciplined her for failing to abide by the company's policies and procedures. Id. at 9. She claims other employees did not suffer any repercussions in similar situations. Id. Rorebeck also claims she discovered several untruthful and defamatory statements in her personnel file relating to her work. Id. at 11.

         Rorebeck informed the same HR representative that she was being targeted unfairly. The HR representative assured Rorebeck that she was protected from reprisal for reporting concerns. Id. at 9. Rorebeck expressed her concern to her director, Defendant Melchiorre, about Cook's retaliation for reporting his violations to HR. Id. Ultimately, Franciscan terminated Rorebeck's employment. Id. at 10.

         Rorebeck's CBA mandates a grievance procedure when an employee alleges a breach of its terms. She claims that filed a grievance to the extent that she can, and that the grievance process has been stalled by actions other than her own, including that of the Defendants, so it never got finalized. Defendants claim that Rorebeck abandoned her grievance after the Washington State Nurses Association (WSNA) advanced it to arbitration two years ago. Dkt. #34; Defs. Reply, Dkt. #45. Rorebeck sued Franciscan, Cook, Doyle, and Melchiorre, claiming: (1) violations of the ADA, including harassment and discrimination; (2) retaliation for opposing unlawful practices under HIPAA; (3) violations of the WLAD based on disability, hostile work environment, failure to make reasonable accommodations and/or retaliation; (4) breach of contract and the implied covenant of good faith and fair dealing; and (5) defamation. See Dkt. #33.

         The Defendants argue that Rorebeck's ADA claim against the individual Defendants should be dismissed because there is no individual liability under the ADA. Rorebeck concedes she has no ADA claim against any individual Defendant, and the Motion to Dismiss those claims is GRANTED. Her ADA claim against Franciscan remains.

         Defendants also argue that the HIPPA claim against the individual Defendants should be dismissed because HIPPA's prohibition on retaliation applies only to specific “covered entities” or “business associates, ” which are entities that “create, receive, maintain, or transmit protected health information on behalf of a health care provider. See C.F.R. §160.103. Defendants claim she has not, and cannot, plausibly allege that this section applies to her co-workers. Rorebeck argues that whether or not the individual Defendants meet that definition is subject to discovery, and to the extent it is a challenge, must be supported by facts in a summary judgment motion, not by an unsupported statement.

         Defendants further argue[2] that Rorebeck's WLAD claims are preempted by §301 of the Labor Management Relations Act (LMRA), which preempts state law claims if they are either grounded in the provisions of the labor contract, or require interpretation of it[3], because they are founded on rights provided for in the CBA, and not independent of it. Rorebeck argues that her state law WLAD claims are independent of the CBA and are therefore not preempted.

         Defendants also argue that Rorebeck's claims are preempted because she did not exhaust the CBA's grievance procedure before filing suit. Rorebeck contends that she has fully complied and exhausted her remedies without abandoning them. Pl. Resp., Dkt. #44 at 9. Defendants argue that even if she did not abandon her grievance, her failure to exhaust her remedies is fatal to her claim, unless she can show that the union did not represent her, which she has not claimed. Dkt. #45 at 9.

         The Defendants also argue that Rorebeck's breach of contract and good faith and fair dealing claims necessarily seek to vindicate a right or duty created by the CBA itself, and are similarly pre-empted. Dkt. #34 at 11. Rorebeck argues that her breach of contract claims are not preempted because they do not turn on an interpretation of any language in the CBA itself, but arise out of common and statutory law, even though Rorebeck does not dispute Defendants' assertion that the CBA is the contract that was breached. Rorebeck also does not identify any other contract upon which her contract claims are premised. Dkt. #45 at 9.

         Finally, Defendants argue that Rorebeck's defamation claim fails because she does not and cannot plausibly allege that any defamatory statements were published or spoken concerning her. Dkt. #34; Dkt. 45. Rorebeck argues that she has adequately pled the elements necessary to establish her claim for defamation, including the element of unprivileged communication.

         DISCUSSION

         1. Rule 12(b)(6) Standard

          Dismissal under Fed.R.Civ.P. 12(b)(6) may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff's complaint must allege facts to state a claim for relief that is plausible on its face.[4] See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim has “facial plausibility” when the party seeking relief “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Although the court must accept as true the Complaint's well-pled facts, conclusory allegations of law and unwarranted inferences will not defeat an otherwise proper 12(b)(6) motion to dismiss. Vazquez v. Los Angeles Cty., 487 F.3d 1246, 1249 (9th Cir. 2007); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and footnotes omitted). This requires a plaintiff to plead “more than an unadorned, the-defendant-unlawfully-harmed-me-accusation.” Iqbal, 556 U.S. at 678 (citing id.).

         On a 12(b)(6) motion, “a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe v. N. Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990). However, where the facts are not in dispute, and the sole issue is whether there is liability as a matter of substantive law, the court may deny leave to amend. Albrecht v. Lund, 845 F.2d 193, 195-96 (9th Cir. 1988).

         2. Retaliation for Opposing Unlawful Practices under HIPAA

         Rorebeck claims Defendants violated HIPAA when Cook disclosed a co-worker's protected health information to his subordinates and retaliated against ...


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