Peter DePaolo v. Triad Healthcare (2013)

MEMORANDUM OF DECISION ON MOTION TO STRIKE (# 106)

This employment matter is before the court concerning defendant Triad Healthcare's motion to strike both counts of the plaintiff, Peter DePaolo's revised complaint (# 104) (complaint).   The court heard oral argument concerning the motion on October 15, 2013.   After consideration, for the reasons stated below, the motion is granted in part and denied in part.

I

Background

The plaintiff alleges that his employment as a systems administrator was terminated after he complained to management personnel about violations of the federal Health Insurance Portability and Accountability Act (HIPAA).   He alleges that he made complaints about computer system access and security policies.   See complaint, both counts, ¶ 7.   He also alleges that the defendant was required by HIPAA regulations to notify the Secretary of the Department of Health and Human Services of the security breach, but failed to do so.   See complaint, both counts, ¶¶ 9–12.   Thereafter, his employment was terminated.

In Count One, plaintiff claims wrongful discharge in violation of General Statutes § 31–51q.¹  In Count Two, he alleges wrongful discharge in violation of the public policy embodied in a HIPAA regulation, 45 C.F.R. § 164.

Additional references to the complaint are set forth below.

II

Standard of Review

“[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the ․ court ․ We take the facts to be those alleged in the complaint ․ and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover, ․ [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․ It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)  Coppola Construction Co., Inc. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).

“It is well established that a motion to strike must be considered within the confines of the pleadings ․ We are limited ․ to a consideration of the facts alleged in the complaint.   A ‘speaking’ motion to strike (one imparting facts outside the pleadings) will not be granted.”  (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).

III

DiscussionACount One

The defendant argues that the plaintiff's allegations, that he complained that the defendant's policies and procedures violated HIPAA, concerned matters within the scope of his employment as a “systems administrator,” and are not protected speech.   Accordingly, the defendant contends that the plaintiff's first count, for violations of General Statutes § 31–51q, which protects employees from discharge in retaliation for protected speech activity, is legally insufficient.

In particular, the defendant argues that Schumann v. Dianon Systems, Inc., 304 Conn. 585, 614, 43 A.3d 111 (2012), does not require a precise articulation of a former employee's job duties in order to determine whether speech was in furtherance of the employee's official duties, and that what is alleged here is enough to determine that (1) the speech activity was of the general type that the employee was paid to do and (2) that the employee spoke as an employee, not a private citizen.   See defendant's reply (# 111), pp. 2–3.

In Schumann, the Supreme Court stated that “[t]he speech need not be contemplated by the employee's formal job description ․ as the practical determination requires consideration of the employee's level of responsibility and the context in which the statements were made ․ The key inquiry is whether the speech activity stemmed from and [was of] the type ․ that [the employee] was paid to do, and the ultimate question in determining whether speech falls within an employee's official duties is whether the employee speaks as a citizen or instead as a[n] ․ employee ․ Put simply, on-the-job speech generally is ‘pursuant to’ an employee's duties when it is part-and-parcel of his concerns about his ability to properly execute his duties.”   (Citatons omitted;  internal quotation marks omitted.)  Schumann v. Dianon Systems, Inc., supra, 304 Conn. 316.

In the complaint, Count One, paragraph 4, the plaintiff alleges that he worked as a “Systems Administrator.”   In its memorandum (# 107), page 10, the defendant argues that the plaintiff's “job duties categorically involved the administration of Triad's computer system.   All of the complaints he alleges having made to his superiors at Triad involve, or are directly related to, the administration of Triad's computer system.”  (Emphasis in original.)

Count One does not describe the plaintiff's job duties.   It does not allege that the plaintiff's job involved the administration of Triad's computer system.   Such facts are not necessarily implied from the job title.

Cabrera v. American School for the Deaf, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 12 6035273 (February 26, 2013, Schuman, J.) [55 Conn. L. Rptr. 637], cited by the defendant, contained different allegations.   There, the plaintiff alleged that she was hired as a “temporary Payroll Specialist” and that she “reported payroll discrepancies to her employer and to a private auditing body.”   Applying Schumann 's practical test, discussed above, the Cabrera court concluded that “the plaintiff's reports were clearly within her official duties as payroll specialist.”

There, based on the allegations in the complaint, the court properly could find that a payroll specialist's reports of payroll discrepancies were speech activity which stemmed from and was of the type that the employee was paid to do.   See Schumann v. Dianon Systems, Inc., supra, 304 Conn. 314.

Here, in contrast, there are no facts alleged about what the plaintiff's job duties entailed.   In the absence of such allegations, the court cannot determine either the plaintiff's level of responsibility or the context in which the statements were made.   The limited description of the plaintiff's job title as “Systems Administrator” does not contain facts from which the court may discern the answer to the “key inquiry,” whether the speech activity stemmed from and was of the type that plaintiff was paid to do.  Schumann v. Dianon Systems, Inc., supra.   It is not “necessarily implied” that, since the plaintiff alleges he was a “systems administrator,” his job involved the administration of Triad's computer system and his alleged complaints were made pursuant to his official duties.   The defendant's contention otherwise amounts to arguing facts which have not been pleaded.  “The court cannot consider such extraneous material on a motion to strike.”  (Internal quotation marks omitted.)   Lee v. Perez, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 90 0108394 (June 20, 1991, Karazin, J.).

In addition, the fact that the plaintiff's complaints were only made internally is not dispositive.   See Ross v. Breslin, 693 F.3d 300, 307 (2d Cir.2012) (“Speech to a supervisor even in the workplace can be protected as that of a private citizen if it is not made pursuant to the employee's official duties as an employee”).

As to the plaintiff's state constitutional claims, the defendant also argues that, under the Pickering/Connick test, if applicable, see Schumann v. Dianon Systems, Inc., supra, 304 Conn. 620–27, the plaintiff's speech is not protected.

The Schumann court “perform[ed] the Pickering balancing test to determine whether the employee's right to speak is outweighed by the ․ employer's interest in the effective operation of the workplace ․ In the Pickering balancing test, several factors are relevant, including:  the extent of the disruption caused by the employee's speech on [1] workplace discipline, [2] harmony among co-workers, [3] working relationships, [4] the employee's job performance, [5] the responsibilities of the employee within the agency and [6] whether the speech is made publicly or privately ․” (Citation omitted;  internal quotation marks omitted.)  Id., 304 Conn. 623–24.

“[T]he Pickering analysis requires particularized balancing based on the unique facts presented in each case.”  (Internal quotation marks omitted.)   Id., 621.   In contrast to the posture of this matter at this time, presented on a motion to strike, the Schumann court's application of the test was made in the context of a full factual record.   See id., 589.

The record currently before the court is insufficient to enable the court apply the balancing test.   For example, as discussed above, the complaint does not describe the plaintiff's responsibilities as an employee.   Similarly, the court may not engage in speculation about the effect of the plaintiff's speech on workplace discipline, harmony among co-workers, working relationships, or his job performance.   The alleged facts are an insufficient basis to on which to conclude, as argued by the defendant, see defendant's memorandum, page 19, that the plaintiff's conduct unavoidably stoked division in the workplace and strained working relationships.   Likewise, the facts alleged do not support the defendant's argument that the plaintiff engaged in insubordination, including persistent complaints and investigation after being instructed not to do so.   See defendant's memorandum, p. 19.

Count One, paragraph 18, also cites §§ 3 and 14 of the Connecticut Constitution.   Article First thereof, Section 3, concerns the exercise of religious liberty;  Section 14 concerns the rights to assemble and petition.   There are no allegations in Count One relating to these constitutional rights.   Accordingly, those portions of Count One are stricken.   See Coe v. Board of Education, 301 Conn. 112, 121 n.5, 19 A.3d 640 (2011) (court may strike part of a count).   For the reasons stated above, the motion to strike Count One is otherwise denied.

B

Count Two

In Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980) and its progeny, the Supreme Court, “in an effort to balance the competing interests of employers and employees, ․ recognized a public policy limitation on the traditional employment at-will doctrine ․ [and] sanctioned a common law cause of action for wrongful discharge in situations in which the reason for the discharge involved impropriety ․ derived from some important violation of public policy.”  (Citation omitted;  footnote omitted;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580–81, 693 A.2d 293 (1997).

Violation of public policy established by federal law may support a cause of action under Sheets and its progeny.  “[C]laims brought pursuant to the public policy limitation on the at-will employment doctrine can be predicated on the violation of public policy expressed in a federal statute.”  (Footnote omitted.)  Id., 240 Conn. 585–86.

Here, in Count Two, the plaintiff premises his claim on violations of regulations promulgated under a federal statute, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. § 1320d et seq.   See 45 C.F.R. § 164.  “Administrative regulations have the full force and effect of statutory law ․” (Internal quotation marks omitted.)   Hopkins v. Balachandran, 146 Conn.App. 44, 52, 76 A.3d 703 (2013) (citing HIPAA).

“HIPAA ․ require[s] that safeguards be established ‘to ensure the integrity and confidentiality’ of a person's health information and ‘to protect against any reasonably anticipated ․ unauthorized uses or disclosures of the information ․’ HIPAA provides for criminal penalties of fines and imprisonment for disclosure or possession of an individual's identifiable health information, and civil money penalties that may be imposed administratively ․ if a healthcare provider fails to comply with the statutory requirements and standards.”  (Citations omitted.)   Fisher v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV 04 4003207 (April 3, 2006, Munro, J.) (41 Conn. L. Rptr. 137).

The defendant argues that Count Two is insufficient since the plaintiff makes no allegation that he was required as a condition of employment to participate in any violations of 45 C.F.R. § 164 or to expose himself to any risks associated with violating the regulations.   The defendant asserts that the plaintiff's allegations concerning his discharge are insufficiently connected to the alleged efforts to violate HIPAA, since he alleges merely that he was discharged for complaining that other employees or the defendant itself were violating the HIPAA regulations.   See Sheets v. Teddy's Frosted Foods, Inc., supra, 179 Conn. 475 (plaintiff must allege “a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy”).

As illustrated in Antinerella v. Rioux, 229 Conn. 479, 642 A.2d 699 (1994),² cited by the defendant, to fall within the narrow exception to the at-will doctrine, a plaintiff need not allege that he was required to participate in violations or to expose himself to risk associated therewith.   There, the plaintiff alleged that “the defendant entered into agreements with several deputy sheriffs he had appointed.   Under the agreements, the defendant was to forward business he had obtained from law firms and state agencies to designated deputy sheriffs who would thereafter serve process, and, in turn, pay him 40 percent of the statutory rate in violation of General Statutes 6–46 and 53a–161c ․ Each count contained the critical allegation that the defendant, after forming the agreement with the deputy sheriffs, terminated the plaintiff's employment for the purposes of obtaining the plaintiff's business and personally benefiting from the forbidden and illegal fee splitting arrangements the defendant had devised.”  (Footnote omitted.)  Id., 481–82.

The plaintiff in Antinerella did not allege that he was terminated for refusing to participate or declining to expose himself to risk.   As the Supreme Court explained, application of the Sheets “doctrine is particularly appropriate under the facts and circumstances of this case when, according to the allegations ․ the defendant has acted to accomplish what statutes specifically prohibited him from doing ․ Had the plaintiff been the one to discover the defendant's illegal fee splitting scheme and the one to ‘blow the whistle’ on the defendant, and had the defendant thereafter fired the plaintiff in order to continue his illegal conduct, undoubtedly, the plaintiff could bring an action for retaliatory discharge ․ We see no reason to differentiate between that employee and this plaintiff, whose employment was also terminated in order that his employer could perpetuate a fee splitting arrangement, a scheme clearly prohibited by statute.   We reject the defendant's contention that the plaintiff's allegations do not support his claim that his employment had been terminated in violation of a distinct public policy.   We are persuaded that the plaintiff's complaint, read so as to sustain its validity, amply charges that his discharge involve[d] impropriety ․ derived from some important violation of a public policy.”  (Citations omitted;  internal quotation marks omitted.)  Id., 493–94.

As summarized in Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 699, 802 A.2d 731 (2002), in Antinerella, the court held that the plaintiff “had stated a claim for wrongful termination against the defendant ․ predicated upon the deputy sheriff's allegation that the high sheriff had discharged him in order to take [over] his [process serving] business and personally benefit under [a] statutorily forbidden and illegal fee splitting arrangement he had made with several appointed deputy sheriffs.”

Similarly, in Faulkner v. United Technologies Corp., supra, 240 Conn. 587, the court cited with approval Howard v. Zack Co., 264 Ill.3d 1012, 1023–24, 202 Ill.Dec. 447, 637 N.E.2d 1183, cert. denied, 158 Ill.2d 551, 206 Ill.Dec. 836, 645 N.E.2d 1358 (1994):  “plaintiff who alleged employer discharged him for reporting violations of record keeping requirements of federal regulations stated cause of action.”

Here, similarly, the plaintiff alleges that he was terminated for reporting violations of HIPAA privacy requirements.   For example, among the numerous violations of HIPAA regulations cited in the complaint, the plaintiff alleges that he reported deficient security measures in violation of 45 C.F.R. § 164.306(a)(2).   See second count, ¶ 7e.  45 C.F.R. § 164.306(a) provides, “Covered entities and business associates must do the following:  (1) Ensure the confidentiality, integrity, and availability of all electronic protected health information the covered entity or business associate creates, receives, maintains, or transmits.  (2) Protect against any reasonably anticipated threats or hazards to the security or integrity of such information.”   In paragraph 30, the plaintiff alleges that his termination was causally connected to his making complaints to management employees of HIPAA violations committed by the defendant.   This is sufficient to allege a nexus between the discharge and the alleged violation of public policy.

In reply, the defendant argues that, in citing generally to 45 C.F.R. § 164, the plaintiff has not adequately articulated a public policy as a basis for his wrongful discharge claim.   In the complaint, Count Two, paragraph 7, the plaintiff enumerates specific alleged HIPAA violations.

In passing HIPAA in 1996, Congress “[r]ecogniz[ed] the importance of protecting the privacy of health information in the midst of the rapid evolution of health information systems ․” South Carolina Medical Association v. Thompson, 327 F.3d 346, 348 (4th Cir.), cert. denied, 540 U.S. 981, 124 S.Ct. 464, 157 L.Ed.2d 371 (2003).  “The privacy provisions of [HIPAA] ․ create national standards to protect individuals' medical records and other personal information.”  Desimini v. Bristol Hospital, 50 Conn.Sup. 344, 350, 927 A.2d 1004 (2007) [40 Conn. L. Rptr. 611].  “[R]etaliatory discipline for complaining about breach of confidentiality of patient records contravenes the strong, public policies evinced by ․ HIPAA.”   Russo v. Healthwise Associates, LLP, Superior Court, judicial district of Tolland, Docket No. CV 06 5000272 (November 16, 2006, Sferrazza, J.) (42 Conn. L. Rptr. 343).

As in Howard v. Zack Co., supra, 264 Ill.3d 1023, cited in Faulkner v. United Technologies Corp., supra, 240 Conn. 587, “discharging an employee because he reported such conditions contravenes public policy and gives rise to a cause of action for retaliatory discharge.”

CONCLUSION

For the reasons stated above, the motion to strike is granted only as to the references in Count One, paragraph 18, to Article First §§ 3 and 14 of the Connecticut Constitution.   The other aspects of the motion to strike are denied.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. Section 31–51q provides, in relevant part, “Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge ․”.  FN1. Section 31–51q provides, in relevant part, “Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge ․”

FN2. Overruled in part on other grounds, by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003)..  FN2. Overruled in part on other grounds, by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003).

Shapiro, Robert B., J.