### FILED JULY23,2013 In theOfficeoftheClerkofCourt WA StateCourtofAppeals,Division III



### IN THE COURT OFAPPEALS OFTHE STATE OF WASHINGTON DIVISION THREE JANETTE WORLEY, ARNP, a single ) No. 30950-9-111 woman, ) 

### ) Appellant, ) 

### ) v. ) 

### ) PUBLISHED OPINION PROVIDENCE PHYSICIAN ) SERVICES CO., a Washington ) corporation, ) 

### ) Respondent. ) BROWN, J.
- JanetteWorley appealsthetrial court's summary dismissal ofher employmenttermination suit against Providence Physician Service Company. She contends material facts are in dispute regarding the essential elements of herviolation ofpublic policy and breach ofpromise claims. Wedisagree, and affirm. FACTS Ms. Worley began working as an Advanced Registered Nurse Practitioner (ARNP) in Providence's orthopedic clinic on June 30, 2008. She signed an acknowledgmentthatshe had received the ARNPjobdescription. Sheacknowledged Providence's Confidentiality and Acceptable UseAgreementas it related to patientNo. 30950-9-111 Worley v. Providence Physician Services Co. protected health information. Providence required her notto disclose confidential information unless authorized by Providence within the scope of her employment or in compliance with Providence policies. Confidential information included patient information whether oral or recorded. Ms. Worley was required to, "hold confidential information in strict confidence." Clerk's Papers (CP) at 84. Ms. Worley acknowledged that upon breach Providence "may institute disciplinary action including termination of employment." CP at 89. Providence provided Ms. Worley a Code of Conduct "Doing the right thing Right" handbook atthe commencement ofemployment. CP at 

### 61. The Code ofConduct specifically forbids stafffrom taking, "patient data offsite except as necessary and in accordance with Providence and departmental policies." CP at 67. The Code of Conduct required herto keep information, including patient information, obtained at a Providence organization confidential. "Confidentiality" includes "[k]eeping information private that should not be shared with anyone else." CP at 72. Providence's Code ofConduct encouraged employees to contact a compliance officer ifthey suspect a regulatoryviolation. Providence advised employees theywould not be disciplined for reporting "a possible regulatory violation." CP at 

### 71. Employees, however, were advised thatthey "will not be protected from the results oftheir misconduct ifthey are responsible for a violation or any other actthat is harmful to Providence." CP at 

### 71.

2No. 30950-9-111 Worley v. Providence Physician Services Co.
Heidi Brown is the orthopedic center's office manager. Ms. Worley's clinical supervisorwas Dr. Andrew Howlett. Dr. Howlett had an "advanced complex orthopedic practice." CP at 250. Providence notified Ms. Worley aboutthe complexity of Dr. Howlett's practice when shewas hired. As an ARNP, Ms. Worley was permitted to order, collect, perform, and interpret diagnostictests. X-rays are considered diagnostic tests. Dr. Howlett instructed Ms. Worley howto review, read and interpret X-rays specificto his practice. Ms. Worley expressed her concerns to Dr. Howlettthat she thought manyofthe patients she was treating had conditions too complex from an orthopedic stand pointfor herto be seeing. Dr. Howlettwould go over specific patients with Ms. Worley before she went into the examination room or before she made rounds atthe hospital to assist. On December 16, 2008, Ms. Worley metwith Ms. Brown and Dr. Howlett to address performance concerns. She was verballywarned pursuant to Providence's policies and proceduresthat complaintswere received regarding her patient care and performance. Dr. Howlett expressed his commitmentto teach, coach, and train Ms. Worley, but he advised Ms. Worleythe issues addressed in the meeting needed to be completed orchanged as soon as possible with no exceptions. On January29,2009, Ms. Worley received a step two written warning pursuant to Providence's policies and procedures for failing to see patients she was scheduled to
see and falling behind appointmenttimes, not returning patient calls in a timely manner, and not appropriately checking outwith nurses at the end ofthe clinic day. On February



### 3No. 30950-9-111 Worley v. Providence Physician Services Co. 11,2009, another meeting was held regarding Ms. Worley's performance. In attendancewere Senior Human Resource Business Partner, Jennifer Rollins, Director ofClinical Operations, Stacy Herron, Ms. Worley, and Ms. Brown. The issues discussed at the meeting related to documentation, communication with patients, training, RN/staff relationships, schedule timeliness, and prioritization. On May 26, 2009, Dr. Howlett completed a Clinical Competency Evaluation Form on Ms. Worley, identifying seven areas where her performance did not meet expectations. On June 9,2009, Providence issued a final warning to Ms. Worley for excessive tardiness or, inferiorwork performance, work flow impact issues, inappropriate behavior and conduct, unsatisfactory patient and public relations, and noncooperation with leadership orfellow employees. The next day, Ms. Worley metwith Kris Fay, Providence's ChiefOperating Officer, and Ms. Rollins. Ms. Worley reported compliance issues about alleged improper Medicare billing and having to read and interpret complex orthopedic X-rays. Ms. Worley claims she was told to point to a diagnostic
screen and, "just say anything" because Providence was "not going to get paid for it anyway." CP at 274. Afterthis meeting, Ms. Fay contacted Providence Compliance Specialist, Kari Lidbeck, to report Ms. Worley's allegations. That same day, Ms. Brown contacted Ms. Fay**~o** advise herthat Ms. Worley had returned to the orthopedic clinic and removed several patientface sheets which were on Ms. Worley's desk. The patientface sheets contained protected patient health



### 4No. 30950-9-111 Worley v. Providence Physician Services Co. information, including the patient's name, date ofbirth, patient's condition, patient's diagnosis and treatment provided. On June 11, 2009, Ms. Worley metwith both Ms. Fay and Ms. Rollins, explaining she took the medial records because Ms. Lidbeck asked hertofax any documents related to her concerns. Ms. Worley claimed she redacted patient information priorto taking the documents. Ms. Worley, however, never provided the compliance specialist with any documents. She admitted to showing the documentsto herthen boyfriend, an attorney. On June 12, 2009, Providence terminated Ms. Worleyfortaking protected patient health information offthe premises ofthe orthopedic clinic in violation of Providence's policies and for insubordination in refUSing to return the documentswhen initially requested. Ms. Worley never contacted the departmentofhealth orany other state or governmental agency relating to herallegations ofimproper billing practices oralleged issues relating to being required to perform dutiesthat she believed were outside the scope ofher practice and medical charting issues either before orafter hertermination. Ms. Worley sued Providenceforwrongful termination in violation ofpublic policy and breach ofpromise arising out of Providence's Code ofConduct. Providence successfully requested summaryjudgmentdismissal ofboth claims. Thetrial court decided Ms. Worleyfailed to establish thejeopardy, causation, and justification elements on thewrongful discharge claim and the reliance element on the breach of



### 5No. 30950-9-111 Worley v. Providence Physician SelVices Co. promise claim. But. on reconsideration the court clarified regarding the breach of promise claim that Ms. Worleyfailed to provide sufficient evidence ofbreach. ANALYSIS The issue is whetherthe trial court erred in summarily dismissing Ms. Worley's wrongful discharge complaint. She contends genuine issues of material fact remain in dispute regarding her public policy and breach ofpromise claims. Our review is de novo. Korslund v. Dyncorp Tri-Cities SelVs., Inc.• 156Wn.2d 168. 177. 125 P.3d 119 (2005). "Summaryjudgment is proper ifthere is no genuine issue ofmaterial fact and the moving party is entitled tojudgmentas a matterof law." Id. Considering the facts in the light mostfavorable to the nonmoving party, we will affirm summaryjudgment if reasonable minds could reach but one conclusion from the presented evidence. Id. In Washington, employment of indefinite duration generally may be terminated by eitherthe employerorthe employee at anytime, with orwithout cause. Bulman v. Safeway, Inc., 144Wn.2d 335, 340, 27 P.3d 1172 (2001). Exception tothis terminationat-will employment relationship is ifthe termination violates public policy and ifthe employee relied on a specific promise ofemployment. See Korslund, 156 Wn.2d at 177 (public policy); Thompson v. St. Regis PaperCo., 102Wn.2d 219,225,685 P.2d 1081 (1984) (breach ofpromise). The wrongful discharge in violation ofpublic policy is a narrow exception and courts must '''proceed cautiously.'" Thompson, 102 Wn.2d at232 (quoting Pamarv.



### 6No. 30950-9-111 Worley v. Providence Physician SelVices Co.
Americana Hotels, Inc., 65 Haw. 370, 380, 652 P.2d 625 (1982)). Wrongful discharge in violation ofpublic policy is an intentional tort. Korslund, 156Wn.2d at 178. The tort has four elements: (1) The plaintiffs must prove the existence ofa clear public policy (the clarity element)

.... (2) The plaintiffs must prove that discouraging the conduct in which they engaged would jeopardizethe public policy (thejeopardy element)

.... (3) The plaintiffs must prove thatthe public-policylinked conduct caused the dismissal (the causation element) (4) The defendant must not be able to offer an overridingjustificationforthe dismissal (the absence of justification element). Gardnerv. LoomisArmored, Inc., 128Wn.2d 931, 941, 913 P.2d 377 (1996) (emphasis omitted). The elements are listed in the conjunctive, requiring the plaintiffto showeach element in orderto prevail. Ellis v. CityofSeattle, 142Wn.2d 450, 459, 13 P.3d 1065 (2000). The parties stipulate to the first element. Thejeopardy element has a high barto meet. We "proceed cautiously" when reviewing thejeopardy element. Cudneyv. ALSCO, Inc., 172 Wn.2d 524, 529-30, 259 P.3d 244 (2011). A plaintiffmust show he orshe engaged in particular conduct directly relating tothe public policy or necessaryfor effective public policy enforcement. Weiss
v. Lonnquist, 173Wn. App. 344, 352,293 P.3d 1264 (2013). The plaintiff must prove discouraging the particular conduct would jeopardizethe public policy. Thus, the plaintiffmust show other means ofpromoting the public policy are inadequate. Korslund, 156Wn.2d at 181-82. Ifother adequate means are available, the public



### 7No. 30950-9-111 Worley v. Providence Physician Services Co. policy is not in jeopardy and a private cause ofaction need not be recognized. Id. at 184. "Thejeopardy element guarantees an employer's personnel management decisions will not be challenged unless a public policy is genuinelythreatened." Gardner, 128Wn.2d at 941-42. "The question ofwhether adequate alternative means for promoting a public policy exist presents a question of law as long as 'the inquiry is limited to examining existing laws to determine whether they provide adequate alternative means of promoting the public policy.'" Cudney, 172Wn.2d at 528-29 (quoting Korslund, 156Wn.2d at 182). Ms. Worley claims the public policies at issue are insuring workplace safety, standard of care in the healthcarefield, preventing fraud in billing, and protecting against retaliation for such violations. The trial court reviewed whether Ms. Worley proffered sufficient evidence to supportthejeopardy element; that is, ifcurrent laws or regulations provided an adequate means ofpromoting the public policies proffered. We review summaryjudgment decisions like the trial court. In orderto establish the jeopardy element, Ms. Worley has to establish that other means of promoting the public policy were inadequate and the actions she took in bringing a tort of last resort, a wrongful discharge claim in violation of public policy, was the "only available means"to promote the public policy and the narrow exception to the doctrine ofat-will employment. Hubbard v. Spokane County, 146 Wn.2d 699, 713, 50 P.3d 602 (2002). The Washington Health Care Act (WHCA), chapter 43.70 RCW provides comprehensive remedies to Ms. Worley to promote the public policy claim. RCW



### 8No. 30950-9-111 Worley v. Providence Physician Services Co.
43.70.075 provides employees and healthcare professionals an administrative process and legal process for adjudicating whistleblower complaints; thus, the statute provides remedies that adequately promote and vindicate the public policies setforth within the statute and its provisions. Ms. Worleyfailed to avail herselfofthe RCW 43.70.075 protections. She could have filed a charge or complaint under RCW43.70.075 with the department of health, butfailed to do so. Ms. Worley contends the WHCA is inadequate because it does not provide an administrative process. Considering the statute and its subparts, we disagree. RCW 43.70.075(1) allows a whistleblowerto file a complaint with the department of health and provides for confidentiality when the complaint or report is made in "good faith." The term "whistleblower" is defined as an "employee, or healthcare professional who in good faith reports alleged quality ofcare concerns to the department of health." RCW43.70.075(2)(c). The statute requires the departmentto "adopt rules to implement procedures for filing, investigation, and resolution ofwhistleblower complaints that are integrated with complaint procedures underTitle 18 RCW for health professionals or health care facilities." RCW43.70.075(4). Significantly, the test is whetherthe statute provides comprehensive remedies that are adequateto protect the specific public policies identified by Ms. Worley. Korslund, 156Wn.2d at 182. It does. In Cudney, our Supreme Court recently declined to expand the wrongful discharge against public policy tort when the Washington Industrial Safety and Health Act of 1973 (WISHA) provided an adequate remedy. UnderWISHA, an employee

9No. 30950-9-111 Worley v. Providence Physician Services Co. reports alleged retaliatory acts to the director ofthe department of labor and industries. RCW49.17.160(2). The Cudneycourt partly concluded WISHA provided an adequate
means of promoting the public policies ofensuring workplace safety and protecting workers who report safety violations by providing comprehensive remedies that serve to protectthe specific public policy identified by the plaintiffs. RCW49.17.160(2); Cudney, 172 Wn.2d at 535-36. Similarto WISHA, the WHCA provides employees and healthcare professionals
an administrative process and legal process for adjudicating whistleblower complaints. Ms. Worley contends that internal reporting should be adequate; but that does not satisfy a violation of public policy claim in this context. Therefore, we agree reasonable minds could solely conclude Ms. Worley cannot establish thejeopardy element of her wrongful discharge in violation of public policy claim. Accordingly, herclaim fails. Ellis, 142 Wn.2d at459. The trial court did not err in itsjeopardy ruling. Wrongful discharge based on breach of promise was first recognized in Thompson. The Thompson court held that an employerwill be bound by promises of specific treatment in specific situations, ifthe employee is induced by those promises to remain on thejob and to not seek other employment. Thompson, 102 Wn.2d at230. The employee must prove (1) a statement in an employee manual or similardocument amounts to a promise ofspecific treatment in specific situations, (2) the employee justifiably relied on that promise, and (3) the employer breached that promise. Korslund, 156Wn.2d at 184-85. Although these elements involve fact issues, the

10No. 30950-9-111 Worley v. Providence Physician Services Co.
issues may be decided as matters of law if reasonable minds could not differ in resolving them. Id. at 185. The trial court clarified on reconsideration that Ms. Worley failed to establish the breach element of her breach ofpromise claim. Employee manuals can lead to obligations governing the employment relationship. Thompson, 102Wn.2d at 229. Providence's Code ofConduct encouraged employees to contact a compliance officer ifthey suspected a regulatory violation. Providence advised employees theywould not be disciplined for reporting "a possible regulatory violation." CP at 71. But employees were equally advised they "will not be protected from the results oftheir misconduct ifthey are responsible for a violation orany other actthat is harmful to Providence." CP at 71. Viewing the facts in the light most favorable to Ms. Worley, no evidence shows she was discharged for contacting a compliance officer about good faith questions or concerns; rather, she violated confidentiality policies. Ms. Worley overlooks shewas bound bythe provision in Providence's Code of Conduct forbidding stafffrom taking, "patient data offsite except as necessary and in accordance with Providence and departmental policies." CP at 67. The Code of Conduct required herto keep information obtained at a Providence organization confidential which included patient information. "Confidentiality" includes "keeping information privatethat should not be shared with anyone else." CP at 72. And, Ms. Worleywas bound by Providence's Confidentiality and Acceptable Use Agreementto not disclose confidential information unless authorized by Providence. Thatviolation

11No. 30950-9-111 Worley v. Providence Physician Services Co.
would result in "disciplinary action including termination ofemployment." CP at 89. Whetherthe information Ms. Worley took was redacted on not, it still would be considered confidential and notto be taken from the work place and notto be shown to her boyfriend. The Code ofConduct specifically provides that employees are not "protected from the results oftheir misconduct ifthey are responsible forthe violation or any otheractthat is harmful to Providence." CP at

### 71. Given all, reasonable minds could solely conclude Ms. Worley failed to establish the breach element ofa wrongful discharge based on breach ofpromise claim. The trial court did not err in summarily dismissing this claim as well as the public policy claim. Affirmed.

Brown, J. WE CONCUR:

K rsmo, C

.. Kulik, 

### J.

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