Katayoon Bereston v. UHS of Delaware, Inc. & District Hospital Partners, LP, d/b/a George Washington University Hospital

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 15-CV-244
KATAYOON BERESTON, APPELLANT,
V.
UHS OF DELAWARE, INC.
AND
DISTRICT HOSPITAL PARTNERS, LP,
D/B/A GEORGE WASHINGTON UNIVERSITY HOSPITAL, APPELLEES.
Appeal from the Superior Court
of the District of Columbia
(CAB-416-14)
(Hon. John M. Mott, Trial Judge)
(Argued December 10, 2015 Decided March 8, 2018)
Keith Lively, with whom Andre P. Barlow was on the brief, for appellant.
Alan S. Block, with whom Nadia A. Patel was on the brief, for appellees.
Before GLICKMAN and MCLEESE, Associate Judges, and FERREN, Senior
Judge.
Opinion for the court by Associate Judge GLICKMAN.
Concurring opinion by Senior Judge FERREN at page 43.
Opinion by Associate Judge MCLEESE, concurring in part and dissenting in
part, at page 48.
2
GLICKMAN, Associate Judge: Katayoon Bereston appeals the dismissal of
her complaint under Superior Court Civil Rule 12 (b)(6) for failure to state a claim
upon which relief can be granted. At issue are two counts in which Ms. Bereston
invoked the District of Columbia‘s judicially-created public policy exception to the
doctrine of at-will employment. In the first count, Ms. Bereston asserted that
George Washington University Hospital (―the Hospital‖) wrongfully terminated
her employment as its Director of Admissions due to her refusal to violate federal
law. In the second count, Ms. Bereston complained that she was subjected to
harassment at the Hospital prior to her termination in retaliation for her insistence
on strict compliance with federal health care laws and regulations.
Although an at-will employee who is discharged for refusing to violate the
law (or for other reasons that transgress a clear mandate of public policy) may have
a common-law cause of action for wrongful termination, we affirm the dismissal of
Ms. Bereston‘s claims. We hold that the first count of her complaint fails to plead
facts sufficient to state a plausible claim that Ms. Bereston‘s refusal to break the
law was the sole or predominant reason for her firing. As to the second count, Ms.
Bereston concedes that it does not state a cognizable claim under current law.
Although this court has held that termination of employment in contravention of
public policy may be actionable, we have not extended that holding to adverse
3
employment actions other than termination. Ms. Bereston urges us to expand the
public-policy exception to the at-will employment doctrine so as to permit claims
―where the employee has been harassed, retaliated against, and suffered other
adverse employment actions short of termination for conduct in furtherance of
public policy.‖1 Even if this court might consider undertaking that task without
legislative direction, however, this is not an appropriate case in which to do so,
because Ms. Bereston‘s complaint fails to plead facts sufficient to state a plausible
claim of actionable harassment or retaliation prior to her discharge.
I.
Before summarizing the allegations in Ms. Bereston‘s complaint, we set
forth the standards under which we will evaluate their sufficiency. We review de
novo a trial court‘s dismissal of a complaint for failure to state a claim upon which
relief can be granted.2 ―To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‗state a claim to relief that is plausible
1
Brief for Appellant at 20.
2
See Potomac Dev. Corp. v. District of Columbia, 28 A.3d 531, 543 (D.C.
2011).
4
on its face.‘‖3 The ―[f]actual allegations must be enough to raise a right to relief
above the speculative level‖4:
A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged. The plausibility standard is not akin
to a ―probability requirement,‖ but it asks for more than a
sheer possibility that a defendant has acted
unlawfully. . . . Where a complaint pleads facts that are
―merely consistent with‖ a defendant‘s liability, it ―stops
short of the line between possibility and plausibility of
‗entitlement to relief.‘‖[5]
―When there are well-pleaded factual allegations, a court should assume
their veracity[,]‖6 but that tenet does not extend to ―a legal conclusion couched as a
factual allegation[.]‖7 ―Bare allegations of wrongdoing that ‗are no more than
conclusions are not entitled to the assumption of truth,‘ and are insufficient to
3
Potomac Dev. Corp., 28 A.3d at 544 (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
4
Twombly, 550 U.S. at 555.
5
Potomac Dev. Corp., 28 A.3d at 544 (quoting Iqbal, 556 U.S. at 678, and
Twombly, 550 U.S. at 570).
6
Id. (quoting Iqbal, 556 U.S. at 679).
7
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
5
sustain a complaint.‖8 In Twombly, for example, considering a complaint charging
a violation of the antitrust laws, the Supreme Court held that the plaintiff‘s mere
assertion that the defendants had entered into an unlawful agreement to prevent
competition and inflate prices was a conclusory allegation not entitled to the
benefit of the assumption of truthfulness.9 Importantly, for present purposes, the
Supreme Court made clear in Iqbal that allegations of motive, animus, purpose,
knowledge, intent and the like are subject to the requirement that they must be
supported by well-pleaded factual allegations in order to be accorded the
presumption of veracity.10 The same holds true for conclusory assertions of
retaliation, intimidation, harassment, and other forms of hostility.11
8
Logan v. LaSalle Bank Nat’l Ass’n, 80 A.3d 1014, 1019 (D.C. 2013)
(quoting Potomac Dev. Corp., 28 A.3d at 544, and Iqbal, 556 U.S. at 679).
9
Twombly, 550 U.S. at 556-57.
10
In Iqbal, the Court held that bare allegations that the Attorney General
and the FBI Director agreed to, implemented, and condoned a discriminatory
policy subjecting Arab Muslim men to arrest, detention, and harsh conditions of
confinement solely on account of their religion, race, or national origin, and for no
legitimate penological reason, were conclusory and did not deserve to be assumed
true. 556 U.S. at 680-81. ―It is true,‖ the Court explained ―that
[Fed. R. Civ. Proc.] Rule 9 (b) requires particularity
when pleading ‗fraud or mistake,‘ while allowing
‗[m]alice, intent, knowledge, and other conditions of a
person‘s mind [to] be alleged generally.‘ But . . . . Rule
9 merely excuses a party from pleading discriminatory
(continued…)
6
II.
Ms. Bereston‘s complaint presents the facts underlying her claims as
follows.
The Hospital hired Ms. Bereston on October 3, 2011, to serve as its Director
of Admissions. Her duties in this position included ―ensuring‖ that the Hospital
(…continued)
intent under an elevated pleading standard. It does not
give him license to evade the less rigid – though still
operative – strictures of Rule 8. . . . And Rule 8 does not
empower respondent to plead the bare elements of his
cause of action, affix the label ‗general allegation,‘ and
expect his complaint to survive a motion to dismiss.
Id. at 686-87.
11
See, e.g., Carter v. Verizon, 2015 U.S. Dist. LEXIS 6370, *16 (S.D.N.Y.
2015) (holding plaintiff‘s ―vague, conclusory allegations of ‗intimidation‘ and
‗hostile work environment‘‖ to be ―insufficient to survive a motion to dismiss‖);
Petersen v. County of Stanislaus, 2012 U.S. Dist. LEXIS 148874, *10-11 (E.D.
Cal. 2012) (―Plaintiff alleges that Defendants‘ conduct constituted harassment ‗in
that it created a hostile work environment when plaintiff was subjected to
differential treatment and was harassed; discriminated against; subjected to
disparate treatment; defamed; retaliated against and suffered severe mental and
emotional distress.‘ This string of legal conclusions is wholly insufficient to allege
a concerted pattern of behavior constituting harassment . . . .‖); cf. EEOC v. Port
Auth. of N.Y. & N.J., 768 F.3d 247, 253-54 (2d Cir. 2014) (holding that the
Twombly and Iqbal requirement ―that a complaint support the viability of its claims
by pleading sufficient nonconclusory factual matter to set forth a claim that is
plausible on its face‖ applies to employment discrimination claims).
7
complied with laws and regulations affecting its operations. On several occasions,
as the complaint details and we shall describe, Ms. Bereston called attention to
improper practices that could have exposed the Hospital to significant legal and
financial liability. Her successful insistence on changing those practices allegedly
alienated staff and physicians, and while her superiors agreed to the changes, they
found fault with Ms. Bereston‘s rigorous performance of this aspect of her job.
The discontent and hostility that Ms. Bereston encountered is the subject of the
second count of her complaint (for retaliatory harassment). It also set the stage for
the Hospital‘s ultimate decision to terminate Ms. Bereston‘s employment after a
physician threatened to leave the Hospital because of her adamant refusal to satisfy
a long-standing request for additional staffing – a refusal based on Ms. Bereston‘s
belief that granting the request would jeopardize the privacy of patient health
information in violation of the federal Health Insurance Portability and
Accountability Act of 1996 (―HIPAA‖). Ms. Bereston‘s termination is the subject
of the first count of her complaint (for wrongful discharge).
Ms. Bereston‘s compliance-related difficulties at the Hospital allegedly
began at the outset of her two-year tenure as Director of Admissions, in October
2011, when she found that Emergency Room patients were being asked how they
would pay for treatment before they were screened by a triage nurse.
8
Understanding this practice to be in violation of the federal Emergency Medical
Treatment and Active Labor Act (―EMTALA‖),12 Ms. Bereston ―immediately‖
changed the process to comply with the law by moving admissions staff into the
treatment area and implementing ―bedside registration.‖ In early 2013, Ms.
Bereston persuaded the Hospital to stop admitting overflow medical and surgical
patients into the acute rehabilitation unit in violation, as she understood, of
regulations promulgated by the federal Centers for Medicare and Medicaid
Services (―CMS‖). In the summer of 2013, Ms. Bereston asserted that the so-
called ―Stark Law‖13 prohibited the Hospital‘s collection of copayments on behalf
of physicians who referred Medicare and Medicaid patients to it. Although the
affected physicians were displeased, the Hospital agreed to cease that practice.
Throughout her tenure, moreover, Ms. Bereston was ―vigilant in identifying
situations where potential HIPAA violations could arise‖ and ―made sure her staff
and appropriate personnel were informed, updated regularly and trained on HIPAA
law and regulations[.]‖14
12
42 U.S.C. § 1395dd (h) (2011).
13
42 U.S.C. § 1395nn (2010).
14
The complaint alleges only one instance in which the Hospital did not
correct a problem Ms. Bereston sought to have corrected. In July 2013, Ms.
Bereston alleges, her reports that the Hospital pharmacy had billed patients who
(continued…)
9
Instead of receiving support and appreciation for her efforts, Ms. Bereston
alleges that she encountered opposition and hostility. When Ms. Bereston reported
the changes she had made to the Emergency Room admissions process to comply
with EMTALA to Rick Davis, the Hospital‘s Chief Financial Officer and her
supervisor at the time, he initially disagreed with them and thought them
unnecessary. However, Mr. Davis ―reluctantly agreed‖ to the changes after the
Hospital‘s Director of Risk confirmed that Ms. Bereston was correct. Even so,
unhappy members of the admitting staff, who ―wanted to do things the way they
had always been done,‖ allegedly ―called Ms. Bereston names, made remarks
about her race, and were openly insubordinate‖; one of them ―screamed in her
face‖ when she tried to explain the new procedures.
In March 2012, Mr. Davis convened a meeting of the Hospital‘s entire
admissions staff. The meeting provided an opportunity for staff to ―voice their
frustration‖ with Ms. Bereston and her disruption of their work routine; she ―was
forced to listen to a long list of frivolous and petty complaints‖ from admissions
staff who ―condemned her for being mean and difficult to approach.‖ After the
(…continued)
had not been treated there for prescription drugs ―were given only lip service,
marginalized, and then flatly ignored.‖
10
meeting, Mr. Davis took Ms. Bereston aside and ―told her one-on-one that she
needed to be more friendly and ‗to ease up on the regulations.‘‖15
Ms. Bereston perceived that her subsequent efforts to bring the Hospital into
compliance with federal laws and regulations were also unpopular; the complaint
alleges in general terms that Ms. Bereston was treated with hostility and ―bullied
and ridiculed by both staff and her superiors[,]‖ but it provides few if any specifics
to substantiate that she suffered such treatment or that her superiors opposed the
changes she recommended. In addition to what has been quoted already in this
opinion, the complaint states only that when Ms. Bereston advised Hospital
officials of the ―Stark Law‖ violation, ―an associate administrator . . . ridiculed
[her] for not spelling the name of the law correctly in an email,‖ and Mr. Davis
admonished her for spelling and grammar mistakes. Ms. Bereston also alleges that
she ―sought psychiatric care to cope with the intense hostility she faced on an
almost daily basis‖ from the staff and the physicians who were discontented with
15
Ms. Bereston interpreted this advice as a warning that ―her insistence on
legal compliance would be detrimental to her job security and the financial well-
being of the Hospital.‖ The complaint also alleges that the March staff meeting
was held for the purpose of undermining Ms. Bereston‘s authority and ability to
perform her job ―in direct retaliation‖ for her identification and correction of
deficient Hospital procedures. We view this latter allegation as conclusory, and we
do not see that it is supported by well-pleaded factual allegations.
11
the new processes and procedures she instituted.
The complaint states that in 2013, Kimberly Russo, the Hospital‘s Chief
Operating Officer, ―accused‖ Ms. Bereston of lacking ―influence leadership‖ and
not being ―a team player.‖ Ms. Russo allegedly blamed Ms. Bereston for her
staff‘s poor performance and high turnover rate (which Ms. Bereston
acknowledges were problems), while physician and staff complaints about her
―were always taken at face value and often handled unprofessionally by both Ms.
Russo and [Hospital] human resources staff.‖16 The complaint also alleges that
―Ms. Russo and others continued systematic assaults on Ms. Bereston‘s authority
by not supporting [her] efforts to earn the respect of and goodwill with the
physicians and staff[,]‖ as when her requests for schedule changes and additional
staff to ―ease the burden on her overworked‖ Admissions Department employees
were denied.
Ms. Bereston asserts that, by tolerating the discontent and hostility she
allegedly endured and withholding their full support for her efforts, senior Hospital
officials were ―deliberately undermining [her] authority and diminishing her ability
16
The complaint so states without providing any specific factual
substantiation.
12
to perform her duties‖ because her efforts to ―stop the Hospital from continuing to
break the law‖ were (supposedly) having ―a perceived and actual effect on [the
Hospital‘s] immediate revenue stream.‖ The complaint does not substantiate these
conclusory allegations of wrongful motive, however; nor does it allege that Ms.
Bereston‘s ability to perform her duties actually was impaired. On the contrary,
Ms. Bereston alleges that ―adherence to compliance was her job and responsibility,
which she took seriously and performed well‖; that she ―fulfill[ed] her employment
responsibilities with extreme care‖; and that she again and again had ―proven her
value‖ to the Hospital by ―performing her job‖ and correcting unlawful practices at
the Hospital.
The incident that allegedly precipitated Ms. Bereston‘s termination arose not
from a change that she initiated, but rather from a requested staffing change that
she refused to make. The request came in the summer of 2012, when a physician,
Dr. Rachel Brem, sought changes in the intake process at the Hospital‘s radiology
clinic (which Dr. Brem managed) because patient registration was too slow. Dr.
Brem requested that six admissions registrars be assigned to the clinic to handle the
patient registration in situ. Ms. Bereston told her that because the registration area
was small and insufficiently private, it would be ―impossible‖ to install more than
13
three registrars without violating HIPAA and its privacy regulations.17 The issue
was brought to the attention of Ms. Russo, and Ms. Bereston was instructed to
―work with other [Hospital] staff on solutions to satisfy Dr. Brem‘s concerns
without violating HIPAA.‖
In May 2013, when a solution had not been devised,18 Dr. Brem again
complained and insisted that the number of admissions registrars in her clinic be
increased from three to six. By this time, other physicians also were complaining
about registration delays and demanding more admissions personnel. The
physicians threatened to refer their patients elsewhere if the Hospital did not satisfy
17
The complaint does not clarify the basis for Ms. Bereston‘s judgment that
it would have been impossible to avoid violating HIPAA if more than three
registrars were placed in the radiology clinic registration area. In describing
HIPAA‘s requirement to maintain the privacy of individually identifiable patient
health information, the complaint states only that ―[f]or example, if a registration
for one patient was taking place within earshot of other patients in a waiting room,
or if patients waiting in line could see another patient‘s information on a computer
screen, the hospital would be violating HIPAA and subject to fines and penalties.‖
We discuss the insufficiency of Ms. Bereston‘s allegations of a violation of HIPAA
in Section III.A.2, infra.
18
The complaint states that Ms. Bereston had completed her part of the
project by ―identify[ing] new processes to help Dr. Brem,‖ but that another
administrator, who had been tasked with redesigning the layout of the radiology
clinic, ―had done nothing.‖ The complaint does not indicate what ―new processes‖
Ms. Bereston had proposed, to whom (if anyone) she communicated them, or how
her ideas were received.
14
their concerns. The complaint does not explain why Ms. Bereston (or the Hospital)
did not respond to the concerns of the physicians other than Dr. Brem; Ms.
Bereston does not allege that HIPAA restrictions or other legal requirements
prevented her from doing so.
On September 6, 2013, Ms. Russo met with Ms. Bereston and issued her a
Performance Improvement Plan (―PIP‖). The PIP gave Ms. Bereston ninety days
to improve but also provided for a review after thirty days, at which time she could
be terminated pursuant to the Hospital‘s progressive discipline policy. Ms.
Bereston‘s complaint does not recite the PIP‘s contents except to say that it
―accused‖ her of lacking qualities of ―leadership‖ and ―satisfaction‖ and mentioned
―feedback from our corporate partner‖ as the reason for the discipline.19 Although
Ms. Bereston was not told what the ―feedback‖ was, her complaint alleges that it
―related to [her] insistence that [the Hospital] comply with various laws and
regulations.‖ The complaint contains no factual allegations supporting this
assertion as to the nature of the ―feedback.‖ Nor do Ms. Bereston‘s factual
19
The complaint states that the ―corporate partner‖ to which the PIP
referred was presumably Medical Faculty Associates, Inc. (―MFA‖), the large
physician practice group with which Dr. Brem and other Hospital physicians were
affiliated. According to the complaint, MFA ―wields significant power within the
Hospital‖ because it is ―practically the sole source‖ of its patient referrals.
15
allegations support her complaint‘s conclusory assertion that the PIP ―was not
justified and was a classic employer attempt to create a pretext for termination.‖
According to the complaint, ―[i]t was clear to Ms. Bereston that this PIP was
issued by Ms. Russo to lay the groundwork to fire her at the next opportunity.‖
Nonetheless, after thirty days, Ms. Bereston had not come up with a HIPAA-
compliant solution to Dr. Brem‘s problem (and the complaint does not allege that
Ms. Bereston made progress in any other area). On October 18, 2013, Dr. Brem
confronted Ms. Bereston at the radiology clinic.20 Angrily ―accusing her of not
knowing anything, not fixing anything, [and] not taking responsibility,‖ Dr. Brem
allegedly demanded six registrars for her clinic ―or she would walk out of the
Hospital, taking her practice and her patients with her.‖ Ms. Bereston ―reluctantly‖
proposed a compromise plan to provide ―up to five‖ admissions personnel plus a
―floating manager,‖ although she privately believed this would be ―stretching
HIPAA to the absolute limit, and that the demands placed upon the floating
manager would be untenable.‖ Dr. Brem rejected this proposal and reiterated her
demand for six registrars immediately or the Hospital ―would start losing
20
According to the complaint, Dr. Brem ―ambush[ed]‖ her and was
―screaming‖ at her so loudly that they were asked to move into Dr. Brem‘s office
and close the door.
16
business.‖ Ms. Bereston refused to provide six registrars. The following week,
she was called to Ms. Russo‘s office and her employment was terminated.
Ms. Bereston was given no official explanation for her discharge. Her
complaint asserts that the Hospital terminated her because of her refusal to break
the law to satisfy Dr. Brem and other MFA physicians.21 ―Also part of the
motivation to terminate Ms. Bereston,‖ the complaint states, ―was simple laziness
and a refusal to confront physician and staff discontent‖ arising from her
implementation of changes that ―often came at the expense of convenience for the
physicians and staff.‖22
21
The complaint states that ―[b]ecause of its almost total reliance on MFA
for patient referrals and revenue, . . . [t]he Hospital would not tolerate an employee
who considered [its] obligations under the law to be more important than an
unlawful demand from an MFA physician.‖ Ms. Bereston further alleges that
―[t]he purpose of the PIP was clear and unambiguous: Ms. Bereston must
acquiesce to the physicians‘ demands, and in this particular situation, to Dr.
Brem‘s unlawful demands or lose her job.‖ We view these assertions as too
conclusory to merit the assumption of truth granted to well-pleaded factual
allegations.
22
―For instance,‖ the complaint elaborates,
the physicians and staff had to change the way they had
―always‖ done things. They had to learn new processes
and procedures designed to protect privacy concerns.
[The Hospital] did not want to shoulder the responsibility
of managing physician and staff discontent, and found it
(continued…)
17
III.
A. Wrongful Discharge
1. Ms. Bereston’s Invocation of the Adams-Carl Exception to Employment
at Will
Ms. Bereston was an at-will employee of the Hospital. ―It has long been
settled in the District of Columbia that an employer may discharge an at-will
employee at any time and for any reason, or for no reason at all.‖ 23 This court has
recognized a designedly ―narrow‖ exception to this common-law rule, under which
an at-will employee may have a claim sounding in tort for wrongful discharge if
the employer‘s ―sole‖ (or at least ―predominant‖) reason for terminating the
employee was the employee‘s refusal to break the law24 or was in some other
respect contrary to a ―clear mandate of public policy . . . .‖25
(…continued)
desirable to allow Ms. Bereston to take the blame and
suffer the brunt of physicians‘ and staff‘s daily hostility.
Here, too, we view the complaint‘s allegations regarding the Hospital‘s
motivations as conclusory.
23
Adams v. George W. Cochran & Co., 597 A.2d 28, 30 (D.C. 1991).
24
See id. at 34 (holding that ―there is a very narrow exception to the at-will
doctrine under which a discharged at-will employee may sue his or her former
employer for wrongful discharge when the sole reason for the discharge is the
(continued…)
18
In the first count of her complaint, Ms. Bereston invokes this Adams-Carl
exception. She claims the Hospital fired her for refusing to increase the number of
admissions registrars and patient intake stations in the radiology clinic from three
to six, even though her reason for refusing to do so was that it would have
increased the likelihood of unintentional disclosures of confidential patient health
information in violation of HIPAA.26 The complaint does not specify what
HIPAA provisions would have been contravened, but Ms. Bereston asserts on
(…continued)
employee‘s refusal to violate the law, as expressed in a statute or municipal
regulation.‖).
25
See Carl v. Children’s Hosp., 702 A.2d 159, 164 (D.C. 1997) (en banc)
(plurality opinion of Judge Terry) (explaining that an at-will employee claiming to
have been fired against public policy must demonstrate both a ―clear mandate‖ of
public policy – a policy that has been ―officially declared‖ by statute or otherwise
– and ―a close fit‖ between that declared policy and ―the conduct at issue‖ in his or
her termination); id. at 197-98 n.2 (concurring opinion of Judge Steadman) (―[T]he
standard set forth by Judge Terry, which is endorsed by the four judges approving
it and which is acquiesced in by Judge King and myself, can be said to be the
effective holding of the en banc court on that issue.‖); see also, e.g., Davis v. Cmty.
Alternatives of Wash., D.C., Inc., 74 A.3d 707, 710 (D.C. 2013) (plaintiff invoking
public-policy exception to at-will employment doctrine ―must show that her
protected activity was the predominant cause of her termination‖); Wallace v.
Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 886 (D.C. 1998)
(upholding dismissal of claim of wrongful termination in violation of public policy
where ―the plaintiff‘s own complaint reveals that she was not terminated solely, or
even substantially, for engaging in conduct protected by such an exception‖).
26
Although Count I of Ms. Bereston‘s complaint attributes her firing only
to her refusal to violate HIPAA, the complaint elsewhere suggests that her other
efforts to prevent the Hospital from violating the law also motivated the decision.
(continued…)
19
appeal that placing as many as six registrars in the clinic would have required her
to violate 42 U.S.C. § 1320d-6 and a federal regulation, 42 C.F.R. § 164.530 (c),
that was promulgated to implement HIPAA. The statute criminalizes the knowing
disclosure of personal health information without authorization.27 The regulation
requires hospitals and other entities to have ―appropriate . . . safeguards‖ and to
(…continued)
However, Ms. Bereston‘s briefs in this court describe her allegedly wrongful
termination as based solely on her refusal to violate HIPAA by acceding to Dr.
Brem‘s demand for six registrars, and not on any other legally protected conduct.
Ms. Bereston has not argued that her wrongful-discharge claim should survive
even if it is not adequately supported by the allegations concerning her refusal to
violate HIPAA. Accordingly, we construe Count I to predicate her wrongful
termination claim on this refusal.
27
In pertinent part, 42 U.S.C. § 1320d-6 (a) reads as follows:
Offense. A person who knowingly and in violation of
this part [42 U.S.C. §§ 1320d et seq.] . . . (3) discloses
individually identifiable health information to another
person, shall be punished as provided in subsection (b).
For purposes of the previous sentence, a person
(including an employee or other individual) shall be
considered to have . . . disclosed individually identifiable
health information in violation of this part if the
information is maintained by a covered entity (as defined
in the HIPAA privacy regulation described in section
1180 (b)(3) [42 U.S.C. § 1320d-9 (b)(3)]) and the
individual . . . disclosed such information without
authorization.
20
―reasonably safeguard‖ the privacy of protected health information.28 This Privacy
Rule provision mirrors HIPAA‘s statutory requirement that covered entities
―maintain reasonable and appropriate administrative, technical, and physical
safeguards . . . to ensure the . . . confidentiality‖ of health information and ―to
28
At Congress‘s direction, see P.L. 104-191, Title II, Subtitle F, § 264, 110
Stat. 2033 (codified as a note to 42 U.S.C. § 1320d-2 (1996)), the Department of
Health and Human Services (―HHS‖) developed recommended standards to
implement the privacy of patient health information under HIPAA. HHS
eventually promulgated them in final regulations, collectively called ―Standards for
Privacy of Individuals‘ Identifiable Health Information‖ or the ―Privacy Rule,‖
codified at 45 C.F.R. §§ 160 and 164 (2000). The provision on which Ms.
Bereston relies, 42 C.F.R. § 164.530 (c), reads as follows:
(1) Standard: Safeguards. A covered entity must have in
place appropriate administrative, technical, and physical
safeguards to protect the privacy of protected health
information.
(2)(i) Implementation specification: Safeguards. A
covered entity must reasonably safeguard protected
health information from any intentional or unintentional
use or disclosure that is in violation of the standards,
implementation specifications or other requirements of
this subpart.
(ii) A covered entity must reasonably safeguard protected
health information to limit incidental uses or disclosures
made pursuant to an otherwise permitted or required use
or disclosure.
21
protect against any reasonably anticipated . . . unauthorized uses or disclosures of
the information.‖29
We conclude that Ms. Bereston‘s complaint fails in two respects to present a
plausible claim for relief from her discharge under the Adams-Carl exception to
the at-will employment doctrine. First, the well-pleaded factual allegations of the
complaint do not show that putting six registrars in the radiology clinic actually
would have violated HIPAA by jeopardizing the confidentiality of patient health
information. Second, the well-pleaded factual allegations of the complaint also are
insufficient to support a plausible claim that the Hospital‘s sole or predominant
reason for firing Ms. Bereston was her refusal to break the law, or that the
Hospital‘s expressed reasons for putting her on a PIP were pretextual. In each of
these two respects, we find that the complaint pleads facts that are at best ―merely
consistent with‖ the Hospital‘s alleged liability and so ―stops short of the line
between possibility and plausibility of ‗entitlement to relief.‘‖30
29
42 U.S.C. § 1320d-2 (d)(2).
30
Potomac Dev. Corp. v. District of Columbia, 28 A.3d 531, 544 (D.C.
2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
22
2. Failure to Plausibly Allege a Violation of HIPAA
As to the first deficiency, in order to state a plausible claim for relief under
the Adams-Carl exception, it is not enough for Ms. Bereston merely to assert that
acceding to Dr. Brem‘s request for six registrars would have endangered the
privacy of protected patient information in violation of HIPAA. That is only a
conclusion of law. Nor is it enough for Ms. Bereston merely to allege that she
acted as she did because she reasonably believed she was refusing to break the law.
This court has never held that an employee‘s reasonable (but wrong) belief that
what her employer required her to do was illegal is enough to support a wrongful-
discharge claim under the Adams-Carl exception to employment at will. On the
contrary, we have expressly declined to ―alter our requirement for a remedy for
wrongful discharge of an at-will employee to a lesser requirement that the
employee have a reasonable belief that he or she is being wrongfully discharged.‖31
As other courts have discerned, there is good reason for not extending the
exception to employees who were fired for refusing to do what they incorrectly
believed was unlawful. We agree with the following explanation by the United
States Court of Appeals for the Third Circuit:
31
Rosella v. Long Rap, Inc., 121 A.3d 775, 779 (D.C. 2015).
23
The public policy exception to the doctrine of
employment at-will does not exist . . . to protect the
employee. Rather it is the protection of society from
public harm, or the need to vindicate fundamental
individual rights, that undergird[s] an at-will employee‘s
common law action for wrongful discharge . . . .
The employee‘s good intentions are not enough to
create a cause of action for wrongful discharge . . . . If an
employee can avoid discipline whenever he reasonably
believes his employer is acting unlawfully, it is the
employee, not the public, who is protected by the good
intentions. A company acting within the law is presumed
to pose no threat to the public at large. The creation of a
cause of action based on an employee‘s reasonable belief
about the law would leave a private employer free to act
only at the sufferance of its employees whenever
reasonable men or women can differ about the meaning
or application of a law governing the action the employer
proposes. The effect such a rule might have on corporate
governance and the efficient operation of private business
organizations is not insignificant. . . . [W]e therefore
conclude that a clear violation of public policy depends
on an actual violation of law.[32]
32
Clark v. Modern Grp. Ltd., 9 F.3d 321, 331-32 (3d Cir. 1993) (predicting
that the Pennsylvania Supreme Court would not recognize a cause of action for
wrongful discharge based on an employee‘s reasonable belief that the act his
employer required him to perform was unlawful, unless the act was in fact
unlawful); see also Holden v. Univ. Sys. of Md., 112 A.3d 1100, 1107 (Md. Ct.
Spec. App. 2015) (affirming dismissal of wrongful discharge complaint for failure
to state a claim, where it alleged that the employee was discharged for refusing to
participate in activities she believed were prohibited by federal law, and the
employee failed to demonstrate a violation of federal law).
24
Thus, to state a plausible wrongful discharge claim, Ms. Bereston‘s
complaint must contain factual allegations that substantiate her conclusory
assertions and beliefs regarding the illegality of granting Dr. Brem‘s request. Ms.
Bereston‘s complaint lacks the necessary factual substantiation.
Absent are any factual allegations clarifying whether, how, or to what extent
raising the number of registrars in the radiology clinic from three to six actually
would have exposed patient health information to a heightened risk of
unintentional disclosure. For example, the complaint does not describe the
dimensions or layout of the radiology clinic‘s admissions area or the space allotted
for the transmission and receipt of confidential patient information. It says nothing
about the volume of patients the radiology clinic currently serves and how adding
registrars would affect the number of persons present at any given time. It does
not describe the nature and duration of the registration process or why it might
subject protected patient information to increased exposure to bystanders.
Assuming that Ms. Bereston‘s concern was with crowding in the admissions area,
her complaint does not identify and describe that putative problem in any way. It
says nothing about how close bystanders already were or would be to patients
being admitted; whether their proximity already did or would permit them to
overhear or glimpse confidential information; or how often such opportunities
25
already occurred or realistically might occur. Similarly, the complaint does not
address the availability and efficacy of safeguards to avoid the inadvertent
exposure of patient data, such as the placement of partitions between registrars and
in positions to block computer screens and sensitive documents from public view.
In short, the complaint fails to explain in any factual way why the
confidentiality of patient health information could be preserved in the radiology
clinic admissions area with three registrars, and indeed with the five registrars plus
a roving manager that Ms. Bereston counter-offered, but not with six registrars. It
is not obvious that increasing the number of registrars to six would be likely to
increase the risk of such unintentional disclosures or that measures could not be
taken to minimize that risk.33
Moreover, even if there would have been a somewhat greater risk of
unintentionally exposing confidential patient health information to bystanders, that
does not necessarily mean adding registrars would have violated HIPAA. The
Privacy Rule makes clear that HIPAA does not require covered entities to
33
Adding registrars even might work to decrease the disclosure risk by
reducing wait times and expediting the movement of patients out of the admissions
area, thereby reducing the crowding and the number of bystanders present to whom
information might be revealed inadvertently.
26
eliminate all avoidable risk of unintentional disclosures of confidential patient
information. Rather, 42 C.F.R. § 164.530 (c) requires that ―reasonable‖ and
―appropriate‖ measures be taken to safeguard patient privacy.34 This is a tacit
acknowledgment that perfection is not achievable and that the goal of protecting
the privacy of patient health information, while important, justifiably may be
balanced against other constraints and imperatives, including the worthy goal
(pursued by Dr. Brem in this case) of reducing the time patients must wait before
they receive care. In the present case, if doubling the number of registrars from
three to six would have cut registration delays substantially (perhaps in half) while
only marginally elevating the risk that sensitive patient information would be
exposed inadvertently to strangers in the waiting room, that would not seem to be
an ―unreasonable‖ or ―inappropriate‖ change.
34
See supra note 28. Our reading of 42 U.S.C. § 1320d-6 (a), the criminal
provision prohibiting the knowing and unauthorized disclosure of personal health
information in violation of HIPAA, is informed by this Privacy Rule provision.
Thus, even if Ms. Bereston foresaw that Dr. Brem‘s request for additional
registrars would increase the risk of unintentional disclosures of protected patient
health information, we are not persuaded that Ms. Bereston would have violated §
1320d-6 (a) by acceding to the request. She has cited, and we are aware of, no
case in which a criminal violation of HIPAA was predicated on an increased risk
of unintentional disclosures.
27
Thus, the factual allegations in Ms. Bereston‘s complaint not only fail to
show there would have been a greater risk of inadvertent disclosure of confidential
patient health information had she acceded to Dr. Brem‘s request for three more
registrars in the radiology clinic. They also fail to show that any heightening of the
risk would have been consequential enough that it would have been forbidden by
HIPAA or offensive to a ―clear mandate‖ of the privacy policy declared by that
legislation.35
3. Failure to Plausibly Allege an Improper Motive for Discharge
Turning to the second shortcoming of Ms. Bereston‘s claim of wrongful
discharge, while it is true that her termination came on the heels of her blow-up
with Dr. Brem, we perceive the factual allegations of the complaint to be
insufficient to support a plausible assertion that the Hospital‘s sole or predominant
reason for firing her was her refusal to violate HIPAA. First, the complaint does
not allege that the Hospital ever ordered Ms. Bereston to violate HIPAA in order to
35
For the same reasons, the complaint‘s factual allegations do not show the
requisite ―close fit‖ between the policy of HIPAA and Ms. Bereston‘s rejection of
Dr. Brem‘s request for six registrars.
28
keep her job.36 Nor does the complaint allege that the Hospital agreed with Ms.
Bereston that it would contravene HIPAA to place as many as six registrars in the
radiology clinic. On the contrary, the complaint actually alleges that the Hospital‘s
Chief Operating Officer, Ms. Russo, instructed Ms. Bereston to ―work with other
[Hospital] staff on solutions to satisfy Dr. Brem‘s concerns without violating
HIPAA.‖ Nothing in the complaint indicates the Hospital would not have
continued to seek a HIPAA-compliant resolution of the problem. Although the
complaint conclusorily accuses the Hospital of not caring about its legal
obligations when money was at stake, its factual allegations do not justify that
accusation. In contrast, the complaint alleges that the Hospital administration had
repeatedly agreed to the changes Ms. Bereston called for to comply with the law,
even when those changes had dismayed staff or irritated physicians and were
deemed to be costly. Evidently, therefore, while it may be inferred that Ms.
Bereston‘s final clash with Dr. Brem contributed to the Hospital‘s decision to end
36
Cf. Rosella, 121 A.3d at 779 (holding claim of wrongful discharge under
Adams-Carl ―deficient‖ because ―[t]here is no showing that appellant, in this
instance, was forced to choose between continuing his employment or engaging in
behavior that was unlawful or against a clear mandate of public policy‖); Adams v.
George W. Cochran & Co., 597 A.2d 28, 34 (D.C. 1991) (holding that it was
―unacceptable and unlawful for [Adams‘s] employer to compel him to choose
between breaking the law and keeping his job‖).
29
her employment, that does not mean the decision was made because Ms. Bereston
refused to break the law.
Second, as recounted above, the complaint alleges that the Hospital was
seriously dissatisfied with Ms. Bereston‘s performance as Director of Admissions
for significant and identified reasons other than her refusal or inability to satisfy
Dr. Brem‘s request for more registrars (or her insistence on compliance with health
care laws and regulation in general). Staff allegedly were dismayed by the
disruption of their working arrangements and complained that Ms. Bereston was
―mean and difficult to approach.‖ Numerous physicians allegedly complained that
Ms. Bereston was not addressing their problems with registration delays and
inadequate admissions staffing. Ms. Bereston‘s supervisors – the Hospital‘s Chief
Financial Officer and its Chief Operating Officer – had counseled her without
apparent success on the need to be friendlier and to improve her leadership and
personnel management skills. It got to the point that Ms. Bereston‘s own staff
were insubordinate, and that physicians (again, not only Dr. Brem) were
threatening to leave the Hospital because she was failing to satisfy their concerns.
Eventually, Ms. Bereston was given a Performance Improvement Plan that
identified ―leadership‖ and ―satisfaction‖ as the areas in which she needed to show
progress. The factual, non-conclusory allegations of the complaint do not support
30
Ms. Bereston‘s charge that the stated reasons for the PIP were euphemistic or
pretextual. It also affirmatively appears from the complaint that, after being placed
on the PIP, Ms. Bereston continued to make no progress in accommodating or
mollifying the unhappy physicians (nor does she allege that she made progress in
any other area). If anything, the situation was only getting worse, as Ms.
Bereston‘s final meeting with Dr. Brem demonstrated. Ms. Bereston attributes the
discontent and hostility she encountered to the unreasonableness of staff and
physicians unwilling to change their ways or moderate their demands, and there
may have been fault on all sides. But as this court said in Wallace,
The narrow exceptions to the ―employment at-
will‖ doctrine which we have recognized in Adams and
Carl were not designed to prevent an employer from
terminating an at-will employee in order to eliminate
unacceptable internal conflict and turmoil. It matters
little, if at all, who was most at fault. An employer is not
required to tolerate an intolerable working
environment.[37]
At best, Ms. Bereston‘s complaint pleads facts that are merely consistent
with her theory of the Hospital‘s liability. It stops well short of making a plausible
37
Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 886
(D.C. 1998); cf. Davis v. Cmty. Alternatives of Wash., D.C., Inc., 74 A.3d 707, 710
(D.C. 2013) (―[W]hatever an employee is doing to promote a public policy interest,
she is not immunized from getting fired if she is engaging in serious misbehavior
on the job.‖).
31
showing that the Hospital‘s sole or even predominant reason for discharging her
was her refusal to violate the law or a clear mandate of public policy.
B. Harassment and Retaliation
1. Uncertain Cognizability of the Proposed Cause of Action
The second count of Ms. Bereston‘s complaint asserts that the Hospital
violated ―District of Columbia public policy‖ by harassing her and retaliating
against her ―for her efforts to bring the employer into compliance with the several
laws and regulations governing its operation.‖38 As Ms. Bereston acknowledges,
this count advances a new common law tort cause of action (which we may
denominate for convenience as ―wrongful discipline‖) that our court has never
recognized. When this court formulated the Adams-Carl exception to the doctrine
of at-will employment, we took pains to emphasize that the tort of wrongful
discharge in contravention of public policy is a very narrow one. We did not
contemplate the creation of an analogous remedy in tort for adverse employment
38
It may be debatable whether Ms. Bereston‘s harassment and retaliation
claim satisfies Carl‘s requirements of a clear public policy mandate and a close fit
between its furtherance and her conduct, but we do not reach this issue in view of
our rejection of the claim on other grounds.
32
actions less severe than discharge.39 The viability of a non-statutory wrongful-
discipline claim is a question of first impression in this jurisdiction.
Although many states recognize public policy claims for wrongful
discharge, only a handful of courts have considered whether to extend that
recognition (in the absence of statutory authorization) to wrongful-discipline
claims, and ―[t]he few decisions on the subject are divided.‖40 Arguably, creation
39
Cf. Darrow v. Dillingham & Murphy, LLP, 902 A.2d 135, 138 (D.C.
2006) (―Of course, one must first be discharged from his or her employment before
being able to take advantage of this legal protection from at-will termination [for
refusal to violate a statute].‖) Darrow held that an at-will employee may have a
claim for wrongful discharge under Adams even if the discharge was
―constructive‖ rather than ―actual.‖ Id. A constructive discharge, which is deemed
equivalent to a firing, occurs when the employer deliberately makes working
conditions so objectively intolerable that the employee is forced to quit. Id. (citing
Arthur Young & Co. v. Sutherland, 631 A.2d 354, 362 (D.C. 1993)). Ms. Bereston
has not claimed that she was constructively discharged.
40
Restatement of Employment Law § 5.01 cmt. c. Compare Trosper v. Bag
‘N Save, 734 N.W.2d 704, 711-712 (Neb. 2007) (recognizing cause of action for
retaliatory demotion for filing a workers‘ compensation claim); Brigham v. Dillon
Cos., 935 P.2d 1054, 1059-60 (Kan. 1997) (same) and Greeley v. Miami Valley
Maint. Contractors, 551 N.E.2d 981, 986 (Ohio 1990) (holding that ―public policy
warrants an exception to the employment-at-will doctrine when an employee is
discharged or disciplined for a reason which is prohibited by statute‖), with
Touchard v. La Z-Boy, Inc., 148 P.3d 945, 955-56 (Utah 2006) (declining to create
a new cause of action for retaliatory harassment or discrimination for pursuing a
workers‘ compensation claim); Below v. Skarr, 569 N.W. 510, 512 (Iowa 1997)
(same); White v. State, 929 P.2d 396, 407-08 (Wash. 1997) (refusing to recognize
tort cause of action for retaliatory transfer of employee in violation of public
policy); Mintz v. Bell Atl. Sys. Leasing Int’l, Inc., 905 P.2d 559, 562 (Ariz. Ct.
(continued…)
33
of a wrongful-discipline tort is ―a necessary and logical extension‖41 of the
wrongful-discharge tort because employers should not be able with impunity to use
demotion or other strong measures short of termination to coerce employees to
violate the law, to punish them for refusing to do so, or otherwise to thwart public
policy. On the other hand, as a practical matter the need to recognize such a broad
cause of action to vindicate public policy is not urgent,42 while doing so would
require courts ―to become increasingly involved in the resolution of [all manner of]
workplace disputes . . . center[ing] on employer conduct that heretofore has not
been actionable,‖43 and perhaps ―could subject employers to torrents of
(…continued)
App. 1995) (refusing to recognize cause of action for retaliatory failure to
promote); and Zimmerman v. Buchheit of Sparta, Inc., 645 N.E.2d 877, 882 (Ill.
1994) (plurality opinion) (declining to extend cause of action for discharge in
violation of public policy to retaliatory conduct such as retaliatory demotion).
41
Brigham, 935 P.2d at 1059.
42
See, e.g., Touchard, 148 P.3d at 955 (reasoning that ―[w]hile retaliatory
discrimination or harassment is deplorable, it does not implicate a clear and
substantial public policy to the same extent as a discharge‖ because the coercive
pressure on the employee is not as great).
43
Zimmerman, 645 N.E.2d at 882 (plurality opinion) (finding no
―compelling reason for expanding judicial oversight of the workplace to include
review of demotions, transfers, or other adverse work conditions that are alleged to
be retaliatory in nature‖).
34
unwarranted and vexatious suits filed by disgruntled employees at every juncture
in the employment process.‖44
We are wary of attempting to resolve these competing policy considerations
by judicial fiat. We have appreciated that in matters such as this, the legislature ―is
in a far better position than a court to make policy decisions on behalf of the
citizenry.‖45 Normally, it is up to the legislature to decide whether to attach
liability to previously lawful conduct. In the District of Columbia, it is through
legislative action that employees currently have causes of action against employers
who harass or retaliate against them for engaging in certain activities, namely those
protected by the District of Columbia Human Rights Act,46 the Whistleblower
Protection Act,47 and the Workers‘ Compensation Act.48 Whether and how to
extend the list of statutorily protected activities so as to protect employees from
harassment or retaliation for conduct covered by the Adams-Carl public-policy
44
Mintz, 905 P.2d at 562 (quoting Ludwig v. C & A Wallcoverings, Inc.,
960 F.2d 40, 43 (7th Cir. 1992)).
45
See Rosella, 121 A.3d at 778 (quoting Carl v. Children’s Hosp., 702 A.2d
159, 164 (D.C. 1997) (en banc) (plurality opinion)).
46
See D.C. Code § 2-1402.61 (2016 Repl.).
47
See D.C. Code § 1-615.53 (2016 Repl.).
48
See D.C. Code § 32-1542 (2017 Repl.).
35
exception to the at-will employment doctrine is presumptively for the Council of
the District of Columbia to determine.
2. Insufficiency of the Allegations of Retaliation and Harassment
In this case, however, it is unnecessary for us to decide whether to recognize
a common-law cause of action for retaliation and harassment offensive to public
policy. Were we to do so, we would require the same prima facie showing as is
required for comparable claims of retaliation and harassment under the District of
Columbia Human Rights Act and other statutes. Under our employment
discrimination laws (as under their federal counterparts), a prima facie showing of
actionable retaliation requires the employee to show ―employer action[] that would
have been materially adverse to a reasonable employee.‖49 Typically, though not
inevitably, such an action is one that has ―materially adverse consequences
49
Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 57 (2006)
(construing the anti-retaliation provision of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-3(a)); Smith v. District of Columbia Office of Human
Rights, 77 A.3d 980, 993 (D.C. 2013). The same standard would appear to apply
to the anti-retaliation provisions in our other statutes. See McCall v. District of
Columbia Hous. Auth., 126 A.3d 701, 705-07 (D.C. 2015) (―[d]rawing upon case
law from the employment discrimination context‖ in holding that the retaliatory
creation of a hostile work environment is a violation of the anti-retaliation
provision of the District of Columbia Whistleblower Protection Act).
36
affecting the terms, conditions, or privileges of employment.‖50 The standard of
material adversity is meant ―to separate significant from trivial harms‖ and exclude
―petty slights or minor annoyances that often take place at work and that all
employees experience.‖51 Thus, ―[w]hile adverse employment actions extend
beyond readily quantifiable losses, not everything that makes an employee
unhappy is an actionable adverse action.‖52
50
Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002) (citation
omitted); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (―A
tangible employment action constitutes a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.‖). In
Burlington N., the Supreme Court made clear that ―the antiretaliation provision . . .
is not limited to discriminatory actions that affect the terms and conditions of
employment,‖ because ―[a]n employer can effectively retaliate against an
employee by taking actions not directly related to his employment or by causing
him harm outside the workplace.‖ 548 U.S. at 63-64 (emphasis in the original).
Ms. Bereston does not allege that the Hospital took retaliatory actions unrelated to
her employment or outside her workplace.
51
Burlington N., 548 U.S. at 68; see also id. (―[A] plaintiff must show that a
reasonable employee would have found the challenged action materially adverse,
which in this context means it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.‖ (Internal quotation marks
omitted.)).
52
Markel v. Bd. of Regents of the Univ. of Wis. Sys., 276 F.3d 906, 911 (7th
Cir. 2002) (quotation marks and citation omitted). Courts likewise ―have generally
held that personality conflicts at work that generate antipathy and snubbing by
supervisors and co-workers are not actionable‖ under the anti-retaliation provision
of Title VII. Burlington N., 548 U.S. at 68 (quoting 1 B. Lindemann & P.
Grossman, Employment Discrimination Law 669 (3d ed. 1996)).
37
Appellant also claims that the retaliatory harassment to which she was
subjected created a hostile work environment. A prima facie showing of a hostile
work environment similarly requires the employee to show, inter alia, ―that the
harassment is severe and pervasive enough to affect a term, condition, or privilege
of employment.‖53 The work environment must be objectively as well as
subjectively hostile or abusive, ―i.e., one that a reasonable person would find
hostile or abusive. . . .‖54 In considering whether a pattern of harassment rises to
this level, courts must ―look[] at all the circumstances,‖ including ―the frequency
of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee‘s work performance.‖55 ―The harassment must consist of more
53
Nicola v. Washington Times Corp., 947 A.2d 1164, 1173 (D.C. 2008)
(citation omitted); see also Daka, Inc. v. Breiner, 711 A.2d 86, 93 (D.C. 1998)
(―[A] plaintiff has an actionable hostile work environment claim . . . when the
workplace is permeated with discriminatory intimidation, ridicule, and insult . . .
that is sufficiently severe or pervasive to alter the conditions of the victim‘s
employment and create an abusive working environment.‖ (internal quotation
marks and citation omitted)). The same requirement exists to make out a case of
retaliatory hostile work environment under the District of Columbia Whistleblower
Protection Act. McCall, 126 A.3d at 706.
54
Daka, 947 A.2d at 93.
55
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
38
than a few isolated incidents, and genuinely trivial occurrences will not establish a
prima facie case.‖56
Ms. Bereston‘s complaint fails to allege sufficient facts to support a
plausible claim of actionable retaliation (i.e., apart from her termination) or hostile
work environment. First, Ms. Bereston does not allege that she was demoted or
reassigned to a position with different responsibilities, that her salary or benefits
were reduced, that she was denied a promotion, salary increase, or bonus, or that
she suffered any other significant change in her employment status or materially
adverse employment action. We do not deny that ―the [mere] imposition of a PIP
– even one that does not result in a negative impact on salary, grade or
performance appraisal – can constitute an adverse action.‖57 However, as we have
said, Ms. Bereston‘s well-pleaded factual allegations fail to support her conclusory
assertion that the PIP in her case was issued in retaliation for her putatively
protected conduct (either in refusing to violate HIPAA or for her compliance
56
Nicola, 947 A.2d at 1173 (internal punctuation and ellipsis omitted)
(citation omitted).
57
Crowley v. Vilsack, 236 F. Supp. 3d 326, 330-31 (D.D.C. 2017). This is
not to say a PIP is always materially adverse to the employee by itself, or that it
was so in Ms. Bereston‘s case.
39
efforts in general) rather than in response to her identified management
deficiencies.
Second, although Ms. Bereston‘s complaint repeatedly alleges in conclusory
terms that she was ―bullied, harassed, ridiculed, sabotaged, [and] humiliated‖
because of her insistence that the Hospital comply with applicable laws, the well-
pleaded factual allegations in the complaint fail to demonstrate it. To be sure, Ms.
Bereston alleges that she received what she considered unmerited criticism of her
job performance (charges of unfriendliness, aloofness, poor leadership and
management of her department, excessive rigor in enforcing regulations, not being
a ―team player‖) and was counseled by her superiors to improve. On one occasion
she was obliged to listen to complaints of her staff that she deemed ―frivolous and
petty.‖ She encountered disagreement with and opposition to her ―unpopular‖
changes in Hospital procedures and did not receive the credit she believes she
deserved. Allegedly, the Hospital‘s ―executives, administrators, and physicians did
not respect nor always accept her recommendations to comply with existing law
and regulations because it meant changing the status quo, creating inconvenience,
and making less profit.‖ Simply put, these allegations may show serious work-
related disagreements, criticisms, and dissatisfaction, but without greater
specificity, they do not evince the kind of severe and pervasive ridicule,
40
intimidation, threats, or other abuse that would create a hostile work environment
or otherwise constitute actionable harassment or retaliation under our law.58
Indeed, despite Ms. Bereston‘s difficulties and understandable stress, her
complaint alleges that she continued to perform her job well and does not identify
any unreasonable interference with her actual work performance. Moreover, the
complaint acknowledges that the Hospital generally implemented the changes she
called for in her compliance role, even when her superiors initially were skeptical
or reluctant.59 That Ms. Bereston‘s role was, in part, that of a compliance officer
does not mean she was immune from questioning and critical evaluation of her
58
See, e.g., Simpson v. Welch, 900 F.2d 33, 35 (4th Cir. 1990) (general
allegations of poor treatment and harassment insufficient to state a claim upon
which relief can be granted); Baez v. Visiting Nurse Serv. of N.Y. Family Care
Serv., 2011 U.S. Dist. LEXIS 133930 at * 4-5, 15-16 (S.D.N.Y. 2011) (list of
grievances, including a meeting at which the plaintiff‘s boss told her that her
complaints were ―petty[,]‖ too trivial to amount to retaliation); Turrentine v.
United Parcel Service, Inc., 645 F. Supp. 2d 976, 991 (D. Kan. 2009) (rejecting
claim that ―UPS, by forcing plaintiff to attend the meeting in which UPS
management personnel were at times hostile and intimidating, subjected plaintiff to
a materially adverse action‖) (citing cases).
59
In point of fact, the factual allegations in Ms. Bereston‘s complaint
suggesting that her superiors or Hospital management were unwilling or reluctant
to comply with the Hospital‘s legal obligations are very thin and fall well short of
showing bad motives; the only unwillingness alleged with any specificity was that
of Mr. Davis to agree to Ms. Bereston‘s alteration of Emergency Room admissions
procedures early in her tenure, and even Mr. Davis changed his mind when the
Hospital‘s Risk Director sided with Ms. Bereston on the legal need for the change.
41
performance, or that opposition to her recommendations was in bad faith, let alone
that it amounted to actionable harassment or retaliation.
At most, Ms. Bereston‘s complaint cites a few more or less offensive
incidents. It alleges that members of Ms. Bereston‘s staff were rude and hostile to
her after she changed Emergency Room admissions procedures to their
displeasure; that Mr. Davis and another Hospital administrator ridiculed her
spelling and grammar in an email; that she was given ―lip service‖ when she
reported pharmacy billing irregularities; and that Dr. Brem lost her temper with her
and screamed at her. By themselves, these were isolated incidents in a two-year
period of employment (and at least some of them might fairly be characterized as
trivial). They cannot be said to have been severe and pervasive enough to have
altered the conditions of Ms. Bereston‘s employment and created a hostile work
environment, or to have constituted materially adverse actions against her by the
Hospital.60
60
Moreover, while Ms. Bereston rests her claim of retaliatory harassment in
part on abusive behavior by her staff and physicians like Dr. Brem, ―an employer
can only be liable for co-workers‘ retaliatory harassment where its supervisory or
management personnel either (1) orchestrate the harassment or (2) know about the
harassment and acquiesce in it in such a manner as to condone and encourage the
co-workers‘ actions.‖ Gunnell v. Utah Valley State College, 152 F.3d 1253, 1265
(10th Cir. 1998). Ms. Bereston has not alleged that Hospital supervisory or
(continued…)
42
We conclude that Ms. Bereston‘s complaint fails to set forth sufficient
factual allegations to plausibly allege actionable harassment and retaliation.
Accordingly, we hold that Count Two (Unlawful Harassment and Retaliation), like
Count One (Wrongful Discharge), fails to state a claim upon which relief can be
granted.
IV.
For the foregoing reasons, we affirm the judgment of the Superior Court
dismissing appellant‘s complaint pursuant to Civil Rule 12 (b)(6) for failure to
state a claim on which relief can be granted.
(…continued)
management personnel orchestrated or acquiesced in abusive behavior by staff or
physicians.
43
FERREN, Senior Judge, concurring: More than two decades ago, in our
Adams1 and Carl2 decisions, this court announced common law exceptions to the
at-will employment doctrine based on public policy. In Adams, we identified an
exception permitting an employee‘s suit for damages alleging wrongful discharge
for refusing the employer‘s demand to violate the law by driving a truck without a
valid inspection sticker. In Carl, we acknowledged an exception justifying a
damage action against a hospital for discharging an employee who exercised her
right to testify against proposed legislation that would limit malpractice recoveries,
against the hospital‘s interests. For any new exception, Carl established two
criteria: (1) a ―clear showing‖ that ―a new exception is needed,‖ derived from an
―identifiable policy . . . ‗officially declared‘‖ in the Constitution, a statute, or a
municipal regulation; and (2) a ―close fit‖ between that policy and ―the conduct at
issue in the allegedly wrongful termination.‖3
1
Adams v. George W. Cochran & Co., 597 A.2d 28 (D.C. 1991).
2
Carl v. Children‘s Hosp., 702 A.2d 159 (D.C. 1997) (en banc).
3
Id. at 164 (Terry, J., concurring), 197 n.2 (Steadman, J., dissenting).
44
In this case, we conclude, first, that appellant Bereston‘s complaint did not
sufficiently allege a wrongful discharge claim. We then decline her request to
recognize a common law exception justifying damages for her employer‘s alleged
―unlawful harassment and retaliation‖4 while she remained on the job. I am adding
this concurring opinion to explain my reasons for joining this latter ruling.
According to paragraph 74 of her complaint, Ms. Bereston alleges that her
hospital employer violated the District‘s public policy ―by retaliating, harassing
and eventually terminating‖ her employment because of her efforts to bring the
hospital ―into compliance with the several laws and regulations governing its
operation.‖ Although a few jurisdictions have recognized common law exceptions
based on public policy for alleged retaliation against an employee short of
discharge – commonly demotion for filing a workers‘ compensation or
whistleblower claim5 – I am reluctant to recognize an unlawful
harassment/retaliation exception in this case.
4
Compl. ¶¶ 73-75.
5
See Trosper v. Bag ‘N Save, 734 N.W.2d 704, 711 (Neb. 2007)
(recognizing a cause of action for retaliatory demotion for filing a workers‘
compensation claim); Brigham v. Dillon Companies, Inc., 935 P.2d 1054, 1059-60
(Kan. 1997) (same); Lawson v. AK Steel Corp., 699 N.E.2d 951, 953-54 (Ohio Ct.
App. 1997) (recognizing a cause of action for the demotion of a whistleblower);
Powers v. Springfield City Schools, No. 98-CA-10, 1998 WL 336782 at *7 (Ohio
(continued…)
45
A discharge for a clear-cut, easily discernable employee act, such as a
refusal to drive (Adams) or a decision to testify (Carl), can be held unlawful rather
easily by reference to public policy clearly reflected in a particular statute or
regulation. To the contrary, to recognize Ms. Bereston‘s common law claim for
harassment/retaliation would require substantial fact-finding based on
employer/employee interactions over time necessitating definitions of terms,
burdens of production and proof, and ultimately resolution of swearing contests
involving multiple actors in environments with fluid dynamics. This would take
judge-made law to an extreme, from creating a right to creating a regime.
It is obviously true that the kind of fact-finding and law-applying I have just
outlined is something the courts do every day, but we do so by applying statutes
that spell out all the required ground rules. Thus, as illustrated in the opinion of
the court,6 a judge-made exception here would require us to piggy-back selectively
(…continued)
Ct. App. June 26, 1998) (unpublished opinion) (recognizing a cause of action for
the retaliatory denial of a promotion to an employee who reported child abuse);
Garcia v. Rockwell Internat. Corp., 232 Cal. Rptr. 490, 493 (Cal. Ct. App. 1986)
(recognizing a cause of action for the suspension without pay of a whistleblower).
6
See ante text accompanying notes 49-56.
46
and extensively on statutes governing, for example, race and sex discrimination,7
whistleblowing,8 and harassment/retaliation in hostile work environments.9 This
we could do, I suppose, but in doing so for harassment/retaliation claims we would
manifestly be competing with the D.C. Council to create causes of action of the
kind that legislatures, not courts, typically undertake, given the complexity of the
subject and the legal structure required. I do not go so far as to say that our local
legislature has preempted the employment-rights field; I conclude merely that,
given the established legislative concern about enacting and protecting the rights of
employees under a number of existing District statutes, it seems to me both
awkward and pretentious to recognize an exception to the at-will doctrine that
would reflect an obvious, intrusive move into the legislative arena.
7
District of Columbia Human Rights Act, D.C. Code § 2-1402.11 (2017
Repl.).
8
District of Columbia Whistleblower Protection Act, D.C. Code § 1-615.52(6) (2017 Repl.).
9
D.C. Code §§ 2-1402.61 (District of Columbia Human Rights Act), 1-
615.53 (District of Columbia Whistleblower Protection Act), 32-1542 (2017
Repl.); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3 (a).
47
I am not, however, averse to extending common law rights of recovery when
appropriate.10 In at least two areas that I have noted, workers‘ compensation and
whistleblower protection, state courts have applied wrongful discharge analysis to
wrongful demotions.11 In these instances of asserting clear-cut rights, grounded in
statutory public policy — and, like Adams and Carl, typically uncomplicated by
controversy over what the employee did — it seems ―inconsistent to recognize a
cause of action for retaliatory discharge, but not demotion.‖12 Indeed, it is more
than a little incongruous to permit — without penalty — a hostile employer to
humiliate rather than fire an employee (and likely drive the employee, instead, to
voluntarily quit).
Unlike the factual fight in the typical harassment/retaliation case like Ms.
Bereston‘s, where the sides have conflicting stories to tell, a typical demotion for
assertion of whistleblower protection or worker‘s compensation would generate
controversy only over an employer‘s reasons for demoting an employee who
asserts an unquestionable right or duty. I say ―typical‖ demotion because, of
10
Carl, 702 A.2d at 166 (Ferren, J., concurring).
11
Trosper, 734 N.W.2d at 711; Dillon, 935 P.2d at 1059-60; Lawson, 699
N.E.2d at 953-54.
12
Trosper, 734 N.W.2d at 710.
48
course, even that predicate for a common law action on occasion may invite
controversy and dilute my point here. Nonetheless, I perceive a material
distinction between challenging retaliation for clear-cut, right-or-duty-based
assertions by employees, and an employee‘s effort to establish
harassment/retaliation as a common law basis for challenging employer discipline,
short of discharge, in an area requiring a superstructure of rules and where, in part,
the legislature has already spoken.
I, therefore, concur separately in the opinion of the court to assure that
nothing we say here forecloses efforts to achieve common law causes of actions, as
appropriate, in the employment area.
MCLEESE, Associate Judge, concurring in part and dissenting in part: The
opinion for the court affirms the trial court‘s dismissal of Ms. Bereston‘s
complaint. I agree as to Ms. Bereston‘s wrongful-termination claim, for the reason
stated in Part III.A.2, which I join: the complaint fails to adequately allege that
Ms. Bereston was being directed to violate HIPAA in connection with patient-
registration procedures. The court need not address whether the complaint was
deficient in the other respects identified in Part III.A.3, and I therefore do not join
49
that part of the court‘s opinion. Although I see no reason to belabor the point, I do
not agree with the conclusions reached in Part III.A.3. In my view, the complaint
sufficiently alleges that Ms. Bereston‘s employment was terminated because Ms.
Bereston refused to do what she was being directed to do with respect to patient-
registration procedures.
I respectfully dissent as to Ms. Bereston‘s claim of what might be called
wrongful discipline in violation of public policy. As the opinion for the court
notes, ante at 31, this court has not yet decided whether to recognize such a claim.
Other courts have divided on the question, ante at 32 n.40, and the Restatement of
Employment Law ―expresses no view‖ on the question. § 5.01 cmt. c (Am. Law
Inst. 2015). I agree with the courts that have concluded that the relevant
considerations on balance favor recognizing such claims. We initially recognized
a claim for wrongful termination because it would be ―patently contrary to the
public welfare‖ to permit an employer ―to require [its] employees to break the law
as a condition of continued employment.‖ Adams v. George W. Cochran & Co.,
597 A.2d 28, 32 (D.C. 1991) (internal quotation marks omitted). Although we
described the doctrine of wrongful termination as ―very narrow,‖ id. at 34, we have
since expanded the doctrine in a variety of ways. See Rosella v. Long Rap, Inc.,
121 A.3d 775, 778 (D.C. 2015) (recognizing that doctrine was subsequently
50
extended to cover termination in violation of clear public policy); Darrow v.
Dillingham & Murphy, LLP, 902 A.2d 135, 138 (D.C. 2006) (applying doctrine in
case of constructive rather than actual termination). See generally Carl v.
Children’s Hosp., 702 A.2d 159, 160 (D.C. 1997) (en banc) (per curiam) (―There is
nothing in the Adams opinion that bars this court—either a three-judge panel or the
court en banc—from recognizing some other public policy exception when
circumstances warrant . . . .‖).
In my view, it would also be patently contrary to the public welfare to permit
employers to impose harsh adverse employment consequences short of termination
on employees to coerce employees to violate the law or to punish employees for
refusing to break the law. I acknowledge the court‘s concern about injecting the
courts unduly into the employment relationship. Ante at 32-34. As the court notes,
ante at 34, other statutes -- such as the Human Rights Act, the Whistleblower
Protection Act, and the Workers‘ Compensation Act -- provide employees with
causes of action based on retaliation short of termination. Judicial enforcement of
those provisions has not proven infeasible, and I see no reason why claims of
wrongful discipline would be any more difficult to resolve. I also note that the
Supreme Court has held that several federal statutes contain an implied right to be
free from retaliation. See, e.g., CBOCS W., Inc. v. Humphries, 553 U.S. 44251
(2008) (42 U.S.C. § 1981); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167(2005) (20 U.S.C. § 1681 et seq. (Title IX)). Those holdings demonstrate that
inferring a right to be free from retaliation and determining the scope of that right
do not exceed the proper judicial function.
I agree with the court that a claim of wrongful discipline in violation of
public policy would require the employee to show ―employer action that would
have been materially adverse to a reasonable employee.‖ Ante at 35 (brackets and
internal quotation marks omitted). I do not agree, however, that Ms. Bereston‘s
complaint was properly subject to dismissal under that standard. Ante at 38-42.
The complaint alleges that staff called Ms. Bereston names, made remarks about
her race, and screamed in her face; supervisory personnel failed to discourage that
conduct and refused to let Ms. Bereston respond; a supervisor suggested that Ms.
Bereston‘s job security would be endangered if she insisted on compliance with the
law; supervisory personnel made unwarranted accusations that Ms. Bereston was
not a good leader or team player; Ms. Bereston was ridiculed and admonished for
minor errors even though other employees were not treated similarly; and Ms.
Bereston was unjustifiably placed on a Performance Improvement Plan (PIP). I do
not view those allegations as conclusory, and if they are proven it seems to me that
a reasonable factfinder could conclude that Ms. Bereston was subjected to
52
―materially adverse‖ employer action. See, e.g., Crowley v. Vilsack, 236 F. Supp.
3d 326, 330-31 (D.D.C. 2017) (―courts in this jurisdiction consistently have held
that the imposition of a PIP—even one that does not result in a negative impact on
salary, grade or performance appraisal—can constitute an adverse action‖) (citing
cases).
In sum, I would vacate the dismissal of Ms. Bereston‘s wrongful-discipline
claim and remand for further proceedings. I therefore respectfully dissent in part.