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XXXXX [Name excised by VersusLaw] v. RGB Group

June 13, 2006

XXXXX [NAME EXCISED BY VERSUSLAW], PLAINTIFF,
v.
RGB GROUP, INC., DEFENDANT.



The opinion of the court was delivered by: Honorable David H. Coar

MEMORANDUM OPINION AND ORDER

Before this Court is Defendant's Motion for Summary Judgment, which is fully briefed and ripe for decision.

I. FACTS

The following facts are taken from the parties' statements of undisputed material fact and are taken as true. Plaintiff XXXXX [Name excised by VersusLaw] is a corporate nurse with over twenty-five years' experience. Defendant RGB Group, Inc. ("RGB Group") is a Florida corporation, with its principal place of business in Miami, Florida. RGB Group is a health care management company that contracts with the federal government to provide health care professionals as staff to federal agencies, including Federal Occupational Health ("FOH"). FOH is a federal agency within the Department of Health and Human Services. FOH provides clinical services for limited health care services and an Employee Assistance Program ("EAP") for federal employees at health units in federal buildings around the country. One such FOH site was the Everett McKinley Dirksen Building ("the Dirksen Building"), 219 South Dearborn Street in Chicago, Illinois.

XXXXX [Name excised by VersusLaw] was employed as a nurse coordinator in the health unit at the Dirksen Building from 1998 to 2004. She was first hired by a government contractor called OMV, which held a contract to provide health care staff to the Dirksen Building health unit. In or around 2002, RGB Group won the contract to provide health care staff to the Dirksen Building. As is apparently customary, XXXXX [Name excised by VersusLaw] remained at the Dirksen Building site, although her employer changed to the RGB Group as of approximately April 1, 2002. RGB Group provided an employee manual to XXXXX [Name excised by VersusLaw] as of March 17, 2002, which stated that all RGB Group employees were "at-will" employees, and that their employment could be terminated with or without cause at any time by either the employer or the employee. XXXXX [Name excised by VersusLaw]'s immediate supervisor at the health unit was Kathy Sarkauskas, RGB Program Manager. Sarkauskas reported to Barry Hill, RGB Group's Contract Representative, and also communicated with Peg Ryan, FOH's Patient Coordinator.

Shortly after RGB Group took over the contract for the Dirksen Building health unit, additional federal contracts were assigned to the unit. XXXXX [Name excised by VersusLaw] reported that she was responsible for conducting physical exams for Department of Defense personnel, including members of the armed services who were on the verge of overseas deployment. In addition, she provided services to several other government agencies and the Peace Corps. The clinic did not have a doctor on staff but rather shared doctor time with the health unit in the Metcalfe Building, approximately half a block away. XXXXX [Name excised by VersusLaw] contended that the volume of patients after the RGB Group took over the FOH contract was too great for her to handle without additional staff and a doctor.

When XXXXX [Name excised by VersusLaw] started in the Dirksen Building health unit, an EAP counselor used one of the offices in the health unit to see EAP clients. The EAP counselor was also an employee of a non-governmental contractor. Sometime in 2002 or 2003, Magellan Health Services took over as the EAP provider vendor. Lois Kenyon Severson, a Magellan employee, became the EAP counselor for the Dirksen Building clinic. The Dirksen Building health unit's hours were from 8:00 a.m. to 4:30 p.m. Sometimes, however, EAP clients had appointments after 4:30 p.m. and Kenyon Severson asked XXXXX [Name excised by VersusLaw] to leave the health unit door unlocked so the clients could get in.

XXXXX [Name excised by VersusLaw] became concerned that the health unit was not properly locked and secured after it closed at 4:30 p.m. and that EAP clients or their family members had unauthorized and unmonitored access to the clinic and the federal building after hours. The regular court security officers go off duty at 6:00 p.m., when the Dirksen Building closes to the public. In late 2003 or early 2004, XXXXX [Name excised by VersusLaw] told Jeff Mornar, the General Services Administration ("GSA") supervisory property manager for the Dirksen Building, that the EAP counselor was seeing clients after hours. Mornar spoke to Doug Mahy, Kenyon Severson's supervisor, about the unwritten building procedure which required staff to escort building visitors out of the building after hours. Mornar also spoke with Kenyon Severson, who advised him that she saw clients as late as 5:45 p.m. but escorted them out of the clinic to the building lobby at the conclusion of their appointments.

XXXXX [Name excised by VersusLaw] continued to report her concerns that EAP clients had unsupervised access to the health unit and to the rest of the Dirksen Building over an eight month period. She sent emails to her supervisor, Kathy Sarkauskas. She also spoke with Robert Vrandecic, deputy United States Marshal in the Dirksen Building. XXXXX [Name excised by VersusLaw] contacted Mornar on subsequent occasions with her concerns about access to the health unit and the building.

At the same time, the work climate at the Dirksen Building health unit deteriorated. A nurse, Anne Jackson, who worked directly for the federal government, came to the clinic and took over one of the doctor's offices as her workspace.*fn1 This was unusual. Government nurses and contractor nurses usually did not share space because of conflict of interest issues. Jackson and XXXXX [Name excised by VersusLaw] clashed on several occasions, as did Kenyon Severson and XXXXX [Name excised by VersusLaw].

RGB Group and Sarkauskas assigned relief nurses to the Dirksen Building health unit as back up for XXXXX [Name excised by VersusLaw] or to cover when XXXXX [Name excised by VersusLaw] was on vacation. In April or May 2004, while XXXXX [Name excised by VersusLaw] was on vacation, relief nurses complained to Sarkauskas that XXXXX [Name excised by VersusLaw] had given them an invalid voice mail password and they were unable to retrieve the clinic's voice mail messages, could not locate medical items in the clinic, and did not know where to find other items. Sarkaukas reported the relief nurses' complaints to Barry Hill. At Hill's suggestion, Sarkauskas investigated the complaints and, at Peg Ryan's request, noted her findings at the health unit on a Quality Assurance form used for clinic auditing purposes. Sarkauskas found that the nurse relief folder, which contained instructions for relief nurses about policies and procedures, had not been updated as required and that the health unit's emergency box contained expired medications.

On April 28, 2004, Hill informed XXXXX [Name excised by VersusLaw] that she was being transferred to a different health unit while the complaints and issues in the Dirksen Building unit could be investigated. XXXXX [Name excised by VersusLaw] told Lou Rose, Human Resources director for the United States Bankruptcy Court for the Northern District of Illinois, and several court security officers about her transfer shortly thereafter. The following day, Ryan forwarded an email to both Hill and Sarkauskas that indicated that three judges in the Dirksen Building were lobbying to keep XXXXX [Name excised by VersusLaw] at the health unit. Ryan then emailed Hill and Sarkauskas that she and Dr. Mark Delowery, the director of clinical services for FOH, had decided to keep XXXXX [Name excised by VersusLaw] at the unit under a written corrective action/performance improvement plan. Hill called XXXXX [Name excised by VersusLaw] and directed her not to communicate directly with FOH clients, including court staff, but rather to follow RGB Group's chain of command for reporting problems and concerns about her work site. Hill also informed XXXXX [Name excised by VersusLaw] that she would be receiving a written reprimand letter, reiterating the items discussed in the telephone call.

On May 4, 2004, Hill sent XXXXX [Name excised by VersusLaw] a letter via Federal Express overnight service with the subject "Employee Performance -- Written Reprimand," which advised her that her performance in following the proper chain of command, relating to her fellow team members, and discussing personnel issues with FOH clients required immediate improvement. At 9:57 a.m. on May 4, XXXXX [Name excised by VersusLaw] sent an email to Sarkauskas with the subject line "FOH Clinic Hours. The email, which included a notation that it was a "final memo," repeated XXXXX [Name excised by VersusLaw]'s concerns that Kenyon Severson was leaving the Dirksen Building health unit unlocked after working hours to see clients, and that this compromised the safety and security of the health unit, its medical records, and the personnel in the Dirksen Building generally. XXXXX [Name excised by VersusLaw] forwarded the email to Jeff Mornar at 10:14 a.m., seventeen minutes after sending it to Sarkauskas, with a prefatory message stating that this was her "last and final memo on this [issue]." Mornar, in turn, forwarded the message to Doug Mahy, who forwarded it to Fran Wence at FOH, who forwarded it to Peg Ryan and Kathy Sarkauskas on May 5, 2004. Peg Ryan forwarded the email to Barry Hill, with all the forwarding headers included. Hill then telephoned XXXXX [Name excised by VersusLaw] on May 5 to confirm that she had received the written reprimand letter; he told her that her services were being evaluated and that she had 48 hours to respond to the written reprimand.

XXXXX [Name excised by VersusLaw] sent a letter to Hill on May 7, 2004, which Hill received on May 10, 2004, refusing to sign the reprimand letter and informing Hill that she would be retaining legal counsel. Hill met with Roberto Bravo, president of RGB Group, on May 10, 2004, to discuss XXXXX [Name excised by VersusLaw]'s employment. After reviewing XXXXX [Name excised by VersusLaw]'s personnel file, Bravo instructed Hill to terminate XXXXX [Name excised by VersusLaw] effective May 14, 2004. Bravo submitted an affidavit stating that he based his decision on XXXXX [Name excised by VersusLaw]'s personnel file, including negative performance reviews and multiple incidents of violating RGB Group policy by reporting problems or concerns outside the chain of command, problems with appropriate professional conduct, and adherence to standards, policies, and procedures; her refusal to sign the written reprimand; and what he perceived as her unwillingness to improve her conduct and performance. Accordingly, Bravo sent a termination letter dated May 14, 2004 to XXXXX [Name excised by VersusLaw] via overnight mail, which stated that her employment ...


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