Rickman v. Premera Blue Cross ( 2015 )

IN THE SUPREME COURT OF THE STATE OF WASHINGTON
ERICKA M. RICKMAN,
NO. 91040-5
Petitioner,
v. ENBANC
PREMERA BLUE CROSS,
Filed - -SEP 1 7 2015
-----
Respondent.
STEPHENS, I.-Plaintiff Erika Rickman brought this suit against her former
employer, Premera Blue Cross, for wrongful discharge in violation of public policy.
Rickman alleges she was terminated in retaliation for raising concerns about potential
violations of the federal Health Insurance Portability and Accountability Act of 1996
(HIPAA), Pub. L. No. 104-191, 110 Stat. 1936, and its Washington counterpart, the
Uniform Health Care Information Act (UHCIA), ch. 70.02 RCW. The trial court
dismissed Rickman's suit on Premera's motion for summary judgment, concluding
Rickman could not satisfy the jeopardy element of the tort because Premera's internal
reporting system provides an adequate alternative means to promote the public policy.
The Court of Appeals affirmed. Rickman v. Premera Blue Cross, noted at 183 Wn.
App. 1015 (2014).
Rickman v. Premera Blue Cross, 91040-5
We granted review of this case and two others in order to resolve confusion
with respect to the jeopardy element of the tort of wrongful discharge in violation of
public policy. Rickman v. Premera Blue Cross, 182 Wn.2d 1009, 343 P.3d 759(2015); see also Becker v. Cmty. Health Sys., Inc., 182 Wn.2d 1009, 343 P.3d 759(2015); Rose v. Anderson Hay & Grain Co., 182 Wn.2d 1009, 343 P.3d 759 (2015).
Consistent with our decisions in Rose and Becker, we hold that nothing in Premera' s
internal reporting system, nor in HIPAA or its Washington counterpart UHCIA,
precludes Rickman's claim of wrongful discharge. We reverse the Court of Appeals
but remand for that court to address Premera's alternate argument for upholding
the trial court's order of dismissal.
FACTS AND PROCEDURAL HISTORY
Ericka Rickman served as director of Ucentris Insured Solutions from August
2004 until her termination in November 2009. Ucentris, a subsidiary ofPremera, is a
general insurance agency that sells a variety of health care insurance plans and risk
management products to individuals and businesses. Two distinct events transpired
relevant to Rickman's termination.
HIPAA Concerns
In mid-September 2009, Rickman learned about a likely merger between
Pacific Benefits Trust (PBT), a large association underwritten by Premera, and
Washington Grocers Trust, another association underwritten by another insurer. As a
result of the potential merger, Premera would lose PBT membership. Rickman
confirmed the merger with Robin Hilleary, director of Premera's small business
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Rickman v. Premera Blue Cross, 91040-5
group. Rickman informed Hilleary that a Ucentris client asked a Ucentris "[c]aptive
agent" 1 to look for non-Premera insurance in light of the merger. Clerk's Papers (CP)
at 187. In response, Hilleary said Premera was putting together a strategy to retain
membership and Rickman should advise Ucentris captive agents not to look
elsewhere for insurance on behalf of clients. Hilleary told Rickman that Pr9mera
planned to use Ucentris captive agents to transfer the memberships of preferred
groups from the merged associations into an association underwritten by Premera. I d.
Rickman had a "gut feeling" the proposed plan involved "risk bucketing," i.e.,
separating riskier policy holders from less risky holders for underwriting, which she
believed might violate HIPAA laws. CP at 271-72, 187. Rickman believed the plan
could disclose private policyholder information. Rickman expressed her concerns to
her supervisor, Rick Grover:
I met with Rick and I said, "Rick, I have a concern about a strategy that
may be going on within Premera." I explained I didn't lmow the details other
than it had a potential utilization of our agents to move membership[,] and it
had HIPAA written all over it. I couldn't say that was illegal because I don't
lmow actually what's going to happen, but we did not want to be a part of it.
CP at 271. Rickman suggested to Grover the plan should be reviewed by a superior to
determine its legality. Grover refused, noting that "we don't always tell everything to
[the supervisor]." CP at 188. Rickman told Grover this is the way she had always
done her business, but he said, "Well, there's a new Sheriff in town." 2 Id. Later,
Grover forwarded e-mails to Rickman that confirmed Premera was contemplating a
1
Ucentris hires independent contractors, called "captive agents," to sell insurance
products offered only by Premera and its subsidiaries.
2
Grover had recently become Rickman's supervisor.
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Rickman v. Premera Blue Cross, 91040-5
risk bucketing plan, which Rickman believed would violate HIPAA. Rickman
reported her concerns only to Grover and did not file a complaint with Premera's
compliance and ethics department.
Several days after Rickman voiced her HIPAA concerns to Grover, he
abandoned the risk bucketing plan, reasoning the plan favored Ucentris over
Premera's other distribution channels. Premera's underwriting department later
determined the risk bucketing plan was not illegal. However, in response to
Rickman's interrogatories, Premera answered, "The group quickly determined that
risk bucketing was not a lawful option for that particular situation." CP at 67
(emphasis added).
Conflict ofInterest Concerns
Rickman's son, Taylor Vidor, had been a captive agent for Ucentris since 2005,
working as an independent contractor. Before Vidor was retained, Rickman disclosed
her relationship with Vidor to her former supervisor, who approved hiring Vidor.
According to Rickman, her former supervisor said Rickman did not need to make
further disclosures because '"[i]t's not an issue. He's a contractor."' CP at 260.
Rickman also disclosed her relationship to a former employee in human resources, but
the employee never responded, and human resources has no record of the
conversation. Rickman did not otherwise disclose her relationship in her annual
conflict questionnaires, to her new supervisor Grover, or to the compliance and ethics
department. Rickman testified that many other Premera employees have family
members ~ho work for or contract with Premera.
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Rickman v. Premera Blue Cross, 91040-5
In 2008, Rickman approved the promotion of Vidor from a captive agent to a
"[s]ubject [m]atter [e]xpert[]" (SME), at the recommendation of Ucentris managers.
CP at 182-83, 261-62. Vidor received additional compensation as an SME. When
another SME stepped down, Vidor assumed his workload and Rickman approved an
increase in Vidor's commission from 5 to 10 percent, twice the amount some other
SMEs received. Rickman did not consult with Premera or further disclose her
potential conflict of interest.
On September 11, 2009, around the same time Rickman raised her HIPAA
concerns, someone filed an anonymous complaint against Rickman with the
compliance and ethics department, alleging a conflict of interest existed because of
her son's involvement with Ucentris. The complaint highlighted that Rickman had
elevated Vidor to an SME position, that Vidor had input on which captive agents
received leads, and that the general feeling in the office was that befriending Vidor
curried favor with Rickman.
Nancy Ferrara investigated the complaint and ultimately recommended
Rickman be terminated. Ferrara concluded that Rickman's actions created the
appearance of favoritism by condoning familial relationships at Premera and that
Rickman did not properly disclose her relationship to compliance and ethics or human
resources, especially before approving Vidor's SME promotion and increasing his
commission. Ferrara also concluded Rickman exercised poor judgment and showed a
lack of integrity because she was not forthcoming during the investigation. In her
2013 deposition, Ferrara later said she had no knowledge of Rickman's HIPAA
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Rickman v. Premera Blue Cross, 91040-5
concerns during the investigation or at the time of her recommendation. Grover stated
he agreed with Ferrara's recommendation, and he terminated Rickman in November
2009. There is some question, however, whether Grover and Ferrara had different
reasons for Rickman's termination. 3
Procedural Background
In December 2010, Rickman filed suit against Premera in Snohomish County
Superior Court, alleging Premera had wrongfully discharged her in violation of public
policy. Premera moved for summary judgment, which the trial court granted. The
court found the clarity element of the tort of wrongful discharge was readily
established based on HIPAA and Washington's UHCIA. However, the court ruled
that Rickman failed to identify a genuine issue of material fact existed as to the
jeopardy and absence of justification elements of her claim. As to the jeopardy
element, the court held that Rickman could not establish that other means of
promoting the public policy were inadequate because Premera had a robust internal
reporting system. Relying on Dicomes v. State, 113 Wn.2d 612, 782 P.2d 1002(1989), the court further held that Rickman acted unreasonably by failing to apprise
herself of the details of the "risk bucketing" plan to determine whether it was in fact
3
Ferrara indicated she believed Rickman was discharged for poor judgment and lack
of integrity, not because of a conflict of interest. CP at 115 (Ferrara testified, "[T]he fact that
Ms. Rickman did not disclose her son on the conflict of interest was not the reason that she
was terminated necessarily. It was really due to judgment and lack of integrity."). Grover
indicated Rickman was discharged for the conflict of interest discovered during the
investigation and for her lack of disclosure. CP at 83 (Grover testified, "[T]he immediacy of
the termination was the conflict of interest.").
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Rickman v. Premera Blue Cross, 91040-5
illegal, and that public policy was not in jeopardy because Premera did not implement
the plan.
As to absence ofjustification, the court found that Ferrara's recommendation to
terminate Rickman was made without knowledge of Rickman's HIPAA concern.
Therefore, the court reasoned Rickman failed to show a genuine issue of fact existed
as to whether she was fired for raising HIPAA concerns. Rickman appealed.
The Court of Appeals affirmed. Rickman, noted at 183 Wn. App. 1015, slip op.
at 15. The court reasoned Rickman failed to satisfy the jeopardy element for two
reasons. First, the court held that Premera's internal reporting "system provided an
available adequate alternative means by which Rickman could have reported her
concerns." Rickman, slip op. at 15. Relying on Cudney v. ALSCO, Inc., 172 Wn.2d
524, 259 P.3d 244 (2011), the court said the jeopardy element is unconcerned with
whether Premera's internal reporting system provided Rickman any remedy for
termination postreporting. Id. at 14. Second, the court held Rickman could not
establish that her alleged whistle-blowing activity was protected because she failed to
report her concerns in a reasonable manner, not having confirmed the facts or
illegality of the plan. The court did not address causation or absence ofjustification.
Rickman petitioned to this court for review, which we granted. Rickman, 182 Wn.2d
1009.
ANALYSIS
Our decisions in the companion cases of Rose and Becker recognize that the
strict adequacy analysis this court has sometimes embraced is inconsistent with the
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Rickman v. Premera Blue Cross, 91040-5
history and purpose of the tort of wrongful discharge. Rose v. Anderson & Grain Co.,
No. 90975-0, slip op. at 20 (Wash. Sept. 17, 2015); Becker v. Cmty. Health Sys., Inc.,
No. 90946-6, slip op. at 5 (Wash. Sept. 17, 2015); see, e.g., Thompson v. St. Regis
Paper Co., 102 Wn.2d 219, 232, 685 P.2d 1081 (1984). Those decisions announce a
return to Thompson, in which we adopted the public policy tort in recognition that the
at-will doctrine gives employers potentially "unfettered control of the workplace and,
thus, allows the employer to take unfair advantage of its employees." Thompson, 102
Wn.2d at 226. Thompson observed that allowing an exception to the at-will doctrine
serves to equalize the imbalance of power that exists in an employment relationship.
Id. Our adoption of the common law tort thus signified that the at-will doctrine can
no longer "be used to shield an employer's action which otherwise frustrates a clear
manifestation of public policy." Id. at 231.
Thompson characterized the public policy tort as "narrow," meanmg the
employee has the burden of proving the dismissal violates a clear mandate of public
policy. Id. at 232. This means "a court may not sua sponte manufacture public
policy but rather must rely on that public policy previously manifested in the
constitution, a statute, or a prior court decision." Roberts v. Dudley, 140 Wn.2d
58, 65, 993 P.2d 901 (2000); see also Thompson, 102 Wn.2d at 232 (noting we
determine the public policy from "'the letter or purpose of a constitutional, statutory,
or regulatory provision or scheme'" or "'[p]rior judicial decisions"' (quoting Parnar
v. Americana Hotels, Inc., 65 Haw. 370, 652 P.2d 625, 631 (1982))).
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Rickman v. Premera Blue Cross, 91040-5
In the years immediately following Thompson, the tort of wrongful discharge
became the subject of an academic treatise by Professor Henry Perritt. See HENRY H.
PERRITT, JR., WORKPLACE TORTS: RIGHTS AND LIABILITIES§ 3.14, at 75-76 (1991). In
Gardner, we looked to Professor Perritt's treatise to embrace "a more refined"
analysis, in light of the unusual facts of that case. Gardner v. Loomis Armored, Inc.,
128 Wn.2d 931, 940, 913 P.2d 377 (1996). The Perritt test segments its analysis into
four parts: (1) "the existence of a clear public policy (the clarity element)," (2) "that
discouraging the conduct in which the [plaintiff] engaged would jeopardize the public
policy (the jeopardy element)," (3) "that the public-policy-linked conduct caused
the dismissal (the causation element)," and (4) that "[t]he defendant [has not]
offer[ed] an overriding justification for the dismissal [of the plaintiff] (the absence
ofjustification element)." !d. at 941.
Gardner recognized a plaintiff may prove "jeopardy" either because his or
her conduct directly relates to the public policy or because it was necessary for the
effective enforcement of that policy. !d. at 945; see also Korslund v. DynCorp Tri-
Cities Servs., Inc., 156 Wn.2d 168, 193-95, 125 P.3d 119 (2005) (Chambers, J.,
dissenting) (describing Gardner); Cudney, 172 Wn.2d at 540 (Stephens, J.,
dissenting in part) (same). In Rose and Becker, we clarified that the jeopardy
analysis appropriately considers whether available alternative remedies are
intended to be exclusive but does not require an employee to prove that bringing a
tort claim is strictly necessary to vindicate public policy. Rose, slip op. at 14-15,
19-20; Becker, slip op. at 5; see also Wilmot v. Kaiser Alum. & Chem. Corp., 118
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Wn.2d 46, 53-66, 821 P.2d 18 (1981) (analysis focuses on whether the alternate
adequate enforcement mechanism is mandatory or exclusive); Hubbard v. Spokane
County, 146 Wn.2d 699, 717, 50 P.3d 602 (2002) (finding zoning code inadequate
remedy due to its short statute of limitations); Smith v. Bates Tech. Colt., 139
Wn.2d 793, 811, 991 P.2d 1135 (2000) (finding Public Employment Relations
Commission inadequate to vindicate public policy).
The courts below dismissed Rickman's tort claim based on the strict
adequacy standard of proof we abandoned in Rose and Becker. We must now
consider whether her claim survives under the more traditional analysis of
Thompson and Gardner.
Rickman Establishes Genuine Issues ofMaterial Fact as to Jeopardy
"We review de novo a trial court's decision to grant summary judgment."
Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 922, 296 P.3d 860 (2013). We
affirm an order of summary judgment only when there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law. See CR
56(c); Qwest Corp. v. City of Bellevue, 161 Wn.2d 353, 358, 166 P.3d 667 (2007).
We review the evidence in the light most favorable to the nonmoving party and draw
all reasonable inferences in that party's favor. CR 56(c); Qwest Corp., 161 Wn.2d at
358.
As noted, a plaintiff establishes the jeopardy prong by demonstrating either
of the following: "his or her conduct was ... [(1)] directly related to the public
policy or [(2)] necessary for effective enforcement." Rose, slip op. at 17. Premera
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Rickman v. Premera Blue Cross, 91040-5
asks us to treat its internal code of conduct (Code) the same way we treat statutes
for purposes of the jeopardy analysis. Premera argues the Code's internal
reporting system provides an adequate alternate means to enforce public policy.
We reject Premera's position.
Premera has not presented, nor could we locate, any authority for the
proposition that a private employer's workplace policy should be accorded equal
status to a duly enacted statute. There are obvious differences between internal
self-regulations and a statutorily mandated system for addressing public policy
violations. We reject Premera's argument that its internal reporting system should
be the sole avenue to address violations of public policy in its workplace.
We also reject Premera's argument that HIPAA and Washington's UHCIA
adequately protect public policy. First, Premera does not argue that any available
remedies under the statutes are exclusive. See Rose, slip op. at 20-21; Becker, slip
op. at 5. Second, Rickman claims she helped prevent an illegal risk-bucketing
scheme, not that one occurred in violation of federal and state law. It is not clear
that HIPAA or Washington's UHCIA contemplate remedies where a discharged
employee thwarts an unlawful act. A complaint may be filed with the secretary of
the United States Department of Health & Human Services Office for Civil Rights
when a person believes a covered business is "not complying" with HIPAA. 45
C.P.R. § 160.306(a); see also id. at (b)(2) (complaint must "describe the acts or
omissions believe to be in violation"). Similarly, Washington's UHCIA provides
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Rickman v. Premera Blue Cross, 91040-5
enforcement and remedies when a health care provider "has not complied" with the
law. RCW 70.02.170(1 ).
In addition to considering the adequacy of alternate means available to
enforce public policy, the trial court found Rickman could not meet the jeopardy
prong because she did not show her actions were reasonable. The trial court relied
on language in Dicomes that predates Gardner. Premera argues this Dicomes-
based analysis is a "threshold assessment" for the tort of wrongful discharge.
Suppl. Br. ofResp't at 7-8. We disagree. Dicomes does not provide a litmus test
for a claim of wrongful discharge. We have never adopted as an element of the
four-part Perritt test, or of wrongful discharge generally, a requirement that the
plaintiff confirm the validity of his or her concerns before taking action.
Instead, the reasonableness of the plaintiffs conduct relates to whether the
plaintiffs conduct furthers public policy goals. See Gardner, 128 Wn.2d at 945(finding employees must show "they engaged in particular conduct," which
"directly relates to the public policy"); Thompson, 102 Wn.2d at 232 (finding the
employee must demonstrate the dismissal violates a clear mandate of public
policy). This inquiry may be satisfied by showing "the employee sought to further
the public good, and not merely private or proprietary interests." Dicomes, 113
Wn.2d at 620; compare Bennett v. Hardy, 113 Wn.2d 912, 924-25, 784 P.2d 1258(1990) (allowing a claim when the employee hired an attorney to protect herself from
discrimination, an act for which she was later fired), with Farnam v. CRISTA
Ministries, 116 Wn.2d 659, 672, 807 P.2d 830 (1991) (finding the employee did not
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Rickman v. Premera Blue Cross, 91040-5
seek to further the public good because she knew the employer's conduct did not
violate the law).
Rickman has presented sufficient evidence to find she acted in furtherance of
public policy. She believed Premera's risk-bucketing plan would disclose the
private information of policyholders, violating a clear mandate of public policy
under HIPAA. Following Premera's workplace rules, Rickman reported her
concern to her supervisor, Grover. CP at 271, 314 (Premera' s Code expects
associates to report suspected violations of any applicable laws to their
supervisors.). Her supervisor told her to disregard her concerns. Viewing the facts
of this case in the light most favorable to Rickman, she did not act unreasonably or
raise the concerns to benefit her private or proprietary interests. We reverse the
Court of Appeals decision insofar as it affirmed dismissal of Rickman's public
policy tort for failing to establish the jeopardy element.
The Court of Appeals did not address the trial court's separate reason for
granting summary judgment. The trial court agreed with Premera that Rickman
failed to meet her burden of production on the absence of justification element of
her claim. Premera argues there is no genuine issue of material fact that
Rickman's discharge was the result of her conflict of interest or poor judgment
involving her son's position. This argument seems to blend the separate issues of
causation and overriding justification, as it focuses on whether Rickman's HIPAA
concerns were the real reason for her termination.
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We recognize that causation in a wrongful discharge claim is not an all or
nothing proposition. The employee "need not attempt to prove the employer's sole
motivation was retaliation." Wilmot, 118 Wn.2d at 70. Instead, the employee must
produce evidence that the actions in furtherance of public policy were "a cause of
the firing, and [the employee] may do so by circumstantial evidence." !d. This
test asks whether the employee's conduct in furthering a public policy was a
'"substantial"' factor motivating the employer to discharge the employee. Id. at
71.
The "absence of justification" element examines whether the employer can
"offer an overriding justification for the [discharge]," Gardner, 128 Wn.2d at 941(emphasis omitted), "despite the employee's public-policy-linked conduct," id. at
947. Once a plaintiff presents a prima facia case of wrongful discharge in violation
of public policy, the burden of proof shifts to the employer to show the termination
was justified by an overriding consideration. See id. at 947-50; see also Wilmot,
118 Wn.2d at 70 (The employer must "articulate a legitimate nonpretextual
nonretaliatory reason for the discharge."); accord Hubbard, 146 Wn.2d at 718.
The Court of Appeals did not address this argument, having dismissed
Rickman's claim based on its jeopardy analysis. We therefore remand to the Court
of Appeals to consider this alternate ground for the trial court's order of dismissal.
CONCLUSION
We reverse the Court of Appeals. Consistent with our analysis in Rose and
Becker, the jeopardy element of the tort of wrongful discharge does not require a
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Rickman v. Premera Blue Cross, 91040-5
showing of "strict adequacy." Rickman presented sufficient evidence to create a
genuine issue of material fact on the prima facia elements of her claim. We remand
for the Court of Appeals to address whether the trial court's order of summary
judgment should be affirmed on the alternate ground that Premera met its burden of
proof that it had an "overriding justification" for Rickman's discharge.
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Rickman v. Premera Blue Cross, 91040-5
WE CONCUR:
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Rickman v. Premera Blue Cross, No. 91040-5
Fairhurst, J. (concurring)
No~ 91040-5
FAIRHURST, J. (concurring)-! agree with the majority that we should
reverse the Court of Appeals and remand for that court to address Premera Blue
Cross' alternate arguments. I write separately because, as explained thoroughly in
my dissent in Rose v. Anderson Hay & Grain Co., No. 90975-0 (Wash. Sept. 17,
20 15), I would not abandon the adequacy of alternative remedies analysis. This
analysis is consistent with this court's precedent and critical to maintaining the
narrow scope of the tort of wrongful discharge. See Thompson v. St. Regis Paper
Co., 102 Wn.2d 219, 232, 685 P.2d 1081 (1984). Nonetheless, I agree with the
majority that Ericka Rickman established the jeopardy element.
In the dissents to Rose and Becker v. Community Health Services, Inc., No.
90946-6 (Wash. Sept. 17, 20 15), I express why I believe this court should continue
to examine claims for wrongful discharge in violation of public policy under the
analytical framework established in Gardner v. Loomis Armored, Inc., 128 Wn.2d
931,941,913 P.2d 377 (1996). As I did in Becker, I would analyze Rickman's claim
1
Rickman v. Premera Blue Cross, No. 91040-5
Fairhurst, J. (concurring)
according to this court's analytical framework pre-Rose, which includes the
adequacy of alternative remedies analysis.
Prior to Rose, to bring a claim for wrongful discharge in violation of public
policy the plaintiff was required to prove (1) the existence of clear public policy (the
clarity element), (2) that discouraging the conduct in which he or she engaged would
jeopardize the public policy (the jeopardy element), and (3) that the public-policy-
linked conduct caused the dismissal (the causation element). !d. at 941. The
employer must not be able to offer an overriding justification for the dismissal (the
absence of justification element). !d. The only element at issue here is the jeopardy
element.
The jeopardy element ensures that an employer's management decisions will
not be challenged unless a public policy is genuinely threatened. !d. at 941-42. To
establish jeopardy, a plaintiff must show that he or she "engaged in particular
conduct, and the conduct directly relates to the public policy, or was necessary for
the effective enforcement of the public policy." !d. at 945 (emphasis omitted). The
plaintiff must also show that other means of promoting the public policy are
inadequate. !d. In addition, a plaintiff must show that the threat of discharge from
his or her current position will discourage others from engaging in desirable conduct.
!d.
2
Rickman v. Premera Blue Cross, No. 91040-5
Fairhurst, J. (concurring)
Here, the clear policy at issue, declared by the Health Insurance Portability
and Accountability Act of 1996 (HIPAA), 42 U.S.C. § 1320d(6), and Uniform
Health Care Information Act (UHCIA), chapter 70.02 RCW, is to protect patient
privacy. 1 See Clerk's Papers at 10 (trial court finding that Rickman met the clarity
element). Rickman's conduct was in furtherance of this public policy. See majority
at 13. In addition, the threat of Rickman's discharge could discourage other
employees from reporting similar concerns to their supervisors out of fear that they
would also be discharged. The only remaining issue in the jeopardy element analysis
is whether there is an adequate alternative means to promote the public policy.
Before Rose, if the statute declaring the public policy also provided an
adequate statutory remedy, a plaintiff could not satisfy the jeopardy element and was
precluded from bringing a claim for wrongful discharge. See Korslund v. DynCorp
Tri-Cities Servs., Inc., 156 Wn.2d 168, 182-83, 125 P.3d 119 (2005); Cudney v.
ALSCO, Inc., 172 Wn.2d 524, 531-33, 259 P.3d 244 (2011). This was true even if
the statutory remedy was not exclusive. Korslund, 156 Wn.2d at 182-83. If the
public policy was already protected under a statutory scheme, then there was no
reason to recognize a tort cause of action for the employee.
1
The Court of Appeals did not address the remedies provided by HIP AA or the UHCIA to
determine if they were adequate. Rickman v. Premera Blue Cross, noted at 183 Wn. App. 1015,
2014 WL 4347625, at *7. The Court of Appeals found that the internal reporting system provided
by Premera was adequate to protect the alleged public policy. 2014 WL 4347625, at *6.
3
Rickman v. Premera Blue Cross, No. 91040-5
Fairhurst, J. (concurring)
A statutory or administrative remedy was adequate if it provided
comprehensive remedies. See id. A statutory remedy was comprehensive if it
provided damages similar to those available in a tort action and provided a process
through which an employee could hold the employer liable. Id. If the remedies
appeared comprehensive, this court examined the statutory language to determine if
the legislature indicated that the statutory remedy, on its own, was not sufficient to
vindicate the public policy. See Piel v. City of Federal Way, 177 Wn.2d 604, 617,
306 P.3d 879 (2013). 2
For example, in Korslund we found that an administrative remedy in the
Energy Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851, adequately protected
the public policy, such that the plaintiffs were precluded from asserting a claim for
wrongful discharge. 156 Wn.2d at 181-83. The ERA provided an administrative
process for adjudicating whistle-blower complaints and required a violator to
reinstate the employee to his or her former position with the same compensation,
terms and conditions of employment, back pay, and compensatory damages.Jd.
While HIP AA provides an administrative scheme for the office of civil rights
to receive and investigate complaints, it does not provide adequate remedies for an
2
In Pie! this court found that statutory language stating that the statutory remedy was
intended to be in addition to other remedies indicated that the statutory remedy was insufficient to
vindicate public policy. 177 Wn.2d at 617. The Pie! court, therefore, held that the plaintiff could
establish the jeopardy element. !d.
4
Rickman v. Premera Blue Cross, No. 91040-5
Fairhurst, J. (concurring)
employee that is wrongfully discharged for reporting violations. 45 C.P.R. §
160.306(a). HIPAA's implementing regulations provide that a covered entity or
business may not take retaliatory action against an individual or person for reporting
violations. 45 C.P.R. §§ 160.316(a), 160.530(g). However, unlike the ERA
examined m Korslund, HIPAA does not provide compensatory damages,
reinstatement, or back pay to an employee who was wrongfully discharged.
Moreover, HIP AA does not create a private cause of action against an employer. See
Watts v. Lyon County Ambulance Serv., No. 5:12-CV-00060-TBR, 2013 WL
557274, at *10 (W.D. Ky. Feb. 12, 2013) (court order); Dean v. Liberation
Programs, Inc., No. FSTCV136018607S, 2013 WL 6510890, at *8 (Conn. Super.
Ct. Nov. 13, 2013) (unpublished).
The available state statutory remedy-the UHCIA-is also inadequate. The
UHCIA provides a private right of action against a health care provider that does not
comply with its terms. RCW 70.02.170(1). However, the statute does not provide a
remedy to an employee who is discharged for reporting violations. Because both the
UHCIA and HIP AA do not provide comprehensive remedies, they do not provide
an adequate alternative means for promoting the public policy.
Premera asserts that its internal reporting policy is an adequate alternative
remedy to preclude Rickman's tort. This court has never addressed whether an
5
Rickman v. Premera Blue Cross, No. 91040-5
Fairhurst, J. (concurring)
internal company policy is an adequate alternative remedy. I agree with the majority
that an internal reporting policy has many differences from a statutorily mandated
system for addressing a public policy. Most notably, an internal reporting policy
does not provide the employee with a legally enforceable remedy. Because HIPAA,
UHCIA, and Premera's internal policy do not provide an adequate alternative
remedy, Rickman established the jeopardy element.
The majority's analysis does not follow the analytical framework established in Rose
The majority asserts that like in Rose and Becker, it decides the issue here
under a "traditional analysis of Thompson and Gardner." Majority at 10. While the
majority does use the four-part test established in Gardner, it does not follow the
burden shifting framework established in Rose. The inconsistency in the analysis
between Rose, Becker, and the present case will create increased confusion.
Under Rose, the first step in the analysis is to determine if Rickman's action
falls into one of the four scenarios easily resolved under Thompson. Rose, majority
at 21. If not, the court should use the four-part analysis set forth in Gardner. Id.Because Rickman alleges that she was fired for reporting employer misconduct, or
whistle-blowing activities, her conduct fits into a Thompson category. Therefore,
under Rose, the next step is to determine whether Riclanan established her burden
of showing that she was terminated for whistle-blowing activities. See id. at 22. If
6
Rickman v. Premera Blue Cross, No. 91040-5
Fairhurst, J. (concurring)
Rickman met this burden, then the burden should shift to Premera to demonstrate
that Rickman's discharge was for other reasons. 3 Instead of following this
framework, the majority skipped the first step and decided the case under the four-
part framework established in Gardner. According to this court in Rose and Becker,
the majority should not have undergone such a refined analysis. See id. at 22; Becker,
slip op. at 6-7.
I note the inconsistency in the analysis between Rose, Becker, and this case
because it demonstrates the confusion regarding the analytical framework
established in Rose. I believe this court would achieve a more consistent analysis
and result by following our precedent pre-Rose. Nevertheless, I concur with the
majority's holding to reverse the Court of Appeals insofar as it held that Rickman
could not establish the jeopardy element.
3
Because questions of fact remain about Premera' s justification for discharging Rickman,
the outcome-reversing and remanding the case to the Court of Appeals-likely would have been
the same.
7
Rickman v. Premera Blue Cross, No. 91040-5
Fairhurst, J. (concurring)
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