IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON ERICKA M. RICKMAN Appellant,

v. PREMERA BLUE CROSS, Respondent. ) FILED: September 2,2014 C»3 CO DIVISION ONE c/> •'-•; £0 n" No. 70766-3-I i

UNPUBLISHED OPINION

Dwyer, J. — Ericka Rickman was terminated from her position as director of Ucentris Insured Solutions—a subsidiary of Premera Blue Cross—in the wake oftwo events, both ofwhich occurred around six weeks prior to her termination. One event was triggered by an anonymous e-mail complaint, wherein an independent contractorfor Ucentris reported a conflict ofinterest involving Rickman and her son, who also worked as an independent contractorfor Ucentris. The other event occurred when Rickman expressed concern to her 

### supervisor that a Premera business proposal couldviolate HIPAA.1 Following an internal investigation ofRickman in response to the anonymous complaint, Rickman was terminated from her position. She then filed suit against Premera, 

### alleging that she had been unlawfully discharged in violation of public policy. 1Health Insurance Portability and Accountability Act of 1996. Pub. L. No. 104-191, 110 Stat. 1936.No. 70766-3-1/2
She now appeals from an adverse grant of summaryjudgment, contending that the trial court erred in concluding that she failed to satisfy her burden as to the "jeopardy" and "absence ofjustification" elements of her cause of action. Because the trial court correctly ruled as to the "jeopardy" element, we affirm without considering its treatment ofthe "absence ofjustification" element.
I Rickman served as director of Ucentris from August 2004 until November 2009, when her employmentwas terminated. Ucentris—a subsidiary of Premera—sells health, life, and risk management products to individuals and small businesses. As an organization, Premera is focused on identifying and 

### preventing any actual, potential, or perceived conflicts ofinterest involving its 

### employees. Ithas inplace a number of policies and guidelines relating to conflicts ofinterest that itexpects all of its employees—including those of its subsidiaries—to follow. These include a code of conduct, a conflict of interest 

### questionnaire policy, and a conflict ofinterest and disclosure questionnaire. 

### Pertinent language contained within these policies and guidelines is reproduced
below: • Conflict ofinterest may occur ifyour outside activities or 

### personal interests influence or appear to influenceyour job performance or the decisions you make in the course of your job responsibilities. • It is each individual's responsibility to not only avoid obvious conflicts, butto also avoid the appearance ofa conflictof interest.... To manage potential conflicts Premera relies on 

### you to fully disclose any relationships that may have the potential ofbeing misinterpreted by others.

• "Conflict of Interest" refers to a situation in which activities,

-2-No. 70766-3-1/3 interactions, or offers of grants or other monetary compensation from outside entities influence, or may appearto influence, an associate'sjob performance orthe decisions that he/she makes in the course of his/herjob responsibilities. • A conflict of interest may take many forms, but usually arises when an associate might be able to use his or her position: to influence Premera business decisions in ways that give an improper advantage to themselves, a family member, or another person; orto obtain for themselves, a family member, or other person a financial benefit unrelated to the compensation they receive for the work they perform at Premera. (Emphasis added.) When employees are hired, and annually thereafter, they complete the conflict of interest disclosure questionnaire, which poses questions relating to potential conflicts, including the following: 

### • Duringthe past 12 months, have you or has any family member received any fee, commission, gift, or other compensation due to the sale of a health care service agreement or insurance 

### policy by or on behalfof[Premera or any of its subsidiaries]? • Duringthe past 12 months, have you or has any family member received any fee, commission, gift, or other compensation 

### arising from [a].
. . purchase
. . . [or] sale
.. . made by orfor.
.. [Premera or any of its subsidiaries]? Ucentris hires independent contractors to sell its insurance products. 

### Some ofthese agents are called "captive agents," meaning thatthey can sell insurance products offered only by Premera and its subsidiaries. Rickman's son, 

### TaylorVidor, worked as a "captive agent." Rickman stated that she told herfirst supervisor at Ucentris—Steve Melton, nowdeceased—aboutVidorand was told that she did not need to disclose the potential conflict ofinterest because Vidor


### was not an employee. Rickman also stated that she disclosed her relationship with Vidor to Jessica Johnson, an employee inthe human resources departmentNo. 70766-3-1/4

at Premera. Rickman had no specific discussions with anyone in Premera's 

### compliance and ethics department about her relationship with Vidor. Her final supervisor, Rick Grover, was unaware that her son was a Ucentris "captive agent."In2008, Vidorwas promoted from a "captive agent" to a "subject matter 

### expert" (SME). Althoughsubordinates of Rickmanrecommended that Vidor be 

### promoted, Rickman approved their recommendation. When Vidor's co-SME stepped down, Rickman approved an increase in Vidor's "override"—his 

### commission—from five to ten percent, which was twice the percentage "override" of other SMEs. Vidor did, however, take overthe workload of his former coSME. 

### On September 11, 2009, Premera's compliance departmentreceived an 

### anonymous e-mail complaintfrom an individual who lateridentified himselfas Steven Lopez—a Ucentris "captive agent" at the time. Lopez reported his concern that a conflict of interest existed given that Rickman's son workedwith 

### Ucentris. Among othercomplaints, Lopez reported thatRickman hadplaced Vidor in an elevated position as a SME; thatVidor reported on the daily activities 

### of other"captive agents"directly toRickman; thatVidor sat in onproductivity reviews of"captive agents"; thatVidor had input onwhich "captive agents" received leads and which did not; and thatthe general feeling inthe officewas 

### thatbeing friends with Vidorwould curryfavorwith Rickman. Lopez requested that the matter be investigated and initially requested anonymity, claiming that he feared retaliation by Rickman.
-4-No. 70766-3-1/5 Following Lopez's anonymous complaint, Premera launched an investigation, which was conducted by Nancy Ferrara. When Rickman was interviewed by Ferrara, Rickman denied that her relationship with Vidor created a conflict of interest and stated that their relationship was known throughout Ucentris. She indicated that her first supervisor, Melton, had known about the relationship and she stated that she had told a former Premera human resources representative named Jessica Johnson about her relationship with Vidor, but that Johnson "never got back to her and eventually left Premera." According to Ferrara, "Human resources did not have any record that Ms. Rickman had
contacted Ms. Johnson." Lopez and another "captive agent," Mark Stryzewski, reported that Rickman had told them that she was concerned about Premera finding out about 

### her relationship with Vidor and had instructed them not to tellanyone outside of Ucentris about their relationship. Although Rickman claimed that she did not 

### have any oversight role withthe "captive agents," Stryzewski stated that it was his perception that Rickman did, in fact, have the ultimate authority to make important decisions regarding "captive agents." Other "captive agents" shared the same or similar perceptions of Rickman's authority. In late October 2009, Ferrara shared the results of her investigation with 

### Grover, including her recommendation that Rickman be dismissed. Among other things, Ferrara concluded that Rickman 

### exhibited poorjudgment and a lack of integrity by, among other things, not reporting her relationship withMr. Vidor to Compliance or Human Resources at any point during her employmentNo. 70766-3-1/6 (especially when she approved of his SME designation and the doubling of his override); making decisions that allowed at least a perception offavoritism toward her son; seemingly condoning familial relationships within Ucentris without Compliance's involvement, which created an environment of at least perceived favoritism; failing to be forthcoming with me during the investigation; speculating about who the complainant was; and authorizing the termination of Ms. Lopez's captive agent contract under the circumstances.[2] Grover agreed with Ferrara's recommendation and terminated Rickman's employment on November 3, 2009. Prior to the termination, and around the time that Lopez lodged his anonymous complaint, Rickman had expressed concern to Groverthat a potential change in Premera's business practice could violate health insurance 

### privacy laws. Rickman learned that Pacific Benefits Trust, a large association underwritten by Premera, was likely merging withWashington Grocers Trust, which was underwritten by a different company. Rickman confirmed this information with the director of Premera's "Small Business Group," Robin 

### Hilleary. When Rickman told Hilleary that a Ucentris "captive agent" had a client who, in light ofthe merger, wanted the agentto look for other non-Premera insurance for his business, Hilleary told Rickman that Premera did not want 

### agents to lookoutside Premera forinsurance for their clients. Hilleary also told Rickman that Premera planned to use Ucentris agents to transferthe 

### membership ofpreferred groups ofthe merged associations into associations that were underwritten by Premera. Rickman believed thatthis approach would

2Following Lopez's anonymous complaint, Rickman approved the recommendation to terminate Ucentris's contractwith Lopez's wife who was also a "captive agent."No. 70766-3-1/7
constitute an illegal form of "risk bucketing"—that is, separating riskier policy holders from less risky ones and putting them into separate "buckets" for underwriting—because doing so would require disclosure ofprivate policyholder information. Although Rickman admittedly did not know the details ofthe plan and although she was unable to say that itwas, in fact, illegal, Rickman nevertheless relayed her concerns to Grover, telling himthat the plan "had HIPAA written all
over it." She then urged him to "take it up the chain of command to make sure everything was legal." However, Grover demurred, stating, "Ericka, we don't always tell everything to [Senior Executive Vice President of Sales and 

### Marketing] Heyward Donnigan because she's like a dog on a bone when she 

### finds something out." Rickman responded, "Butthat's the way Ihave always 

### done mybusiness," to which Grover replied, "Well, there's a new Sheriff intown." Subsequently, Groverforwarded a string of e-mail messages to Rickman. InRickman's opinion, these e-mail messages confirmed her concern that 

### Premera leadership planned on engaging in a form of "risk bucketing" that could potentially violate health insurance privacy laws. Rickman reiterated her concern to Groverthat the plan was inappropriate and possibly illegal. 

### Ferrara had no knowledge ofRickman's alleged concern or complaintto Grover until after Rickman's dismissal when Rickman filed a complaint with the 

### Equal EmploymentOpportunity Commission. Additionally, Groverstated that the type of"risk bucketing" that caused Rickman concern would not have involvedNo. 70766-3-1/8 

### disclosing information protected by HIPAA or UHCIA.3 Nonetheless, Grover ultimately did not adopt the proposed plan based upon his concerns about the plan's favoritism toward Ucentris over Premera's other distribution channels. On December 15, 2010, Rickman filed suit in Snohomish County Superior Court, alleging that Primera had wrongfully discharged her in violation of public policy. On April 11, 2013, Primera moved for summaryjudgment. Thereafter, in
a letter opinion, the trial court granted Premera's motion, ruling that Rickman did not establish a prima facie case of wrongful discharge in violation of public 

### policy—a decision which was based on her failure to produce evidence as to the "jeopardy" and "absence of justification" elements ofher claim. Rickman appeals.
II Rickman contends that the trial court erred by granting summaryjudgment for Premera. This is so, she asserts, because genuine issues ofmaterial fact 

### exist as to the "jeopardy" and the "absence of justification"elements. We disagree. 

### "A motion forsummaryjudgment presents a question of law reviewed de novo." Nat'l Sur. Corp. v. Immunex Corp., 162 Wn. App. 762, 770, 256 P.3d 439 

### (2011), affd, 176 Wn.2d 872, 297 P.3d 688 (2013). Summaryjudgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, togetherwith the affidavits, ifany, show that there is no 

### genuine issue as to any material fact and that the moving party is entitled to 3Washington's Uniform Health Care Information Act, ch. 70.02 RCW.
-8-No. 70766-3-1/9 judgment as a matter of law." CR 56(c). The nonmoving party on summary judgment "must set forth specific facts showing that there is a genuine issue of material fact." Dicomes v. State, 113Wn.2d 612, 631, 782 P.2d 1002 (1989). "Summaryjudgment is appropriate if in view of all ofthe evidence, reasonable persons could reach only one conclusion." Yankee v. APV N.Am., Inc., 164 Wn. App. 1,8, 262 P.3d 515 (2011). Inher complaint, Rickman claimed that she was wrongfully discharged in violation of public policy. Thus, inorderto survive Premera's summaryjudgment motion, Rickman was required to produce evidence that, ifproved, would 

### establish the following four elements: (1) the existence of a clear public policy 

### ("clarity" element);4 (2)that existing means of promoting the public policywere 

### inadequate such that discouraging Rickman's conductwouldjeopardize the public policy ("jeopardy" element); (3)that her public policy-linked conduct caused her dismissal ("causation" element);5 and (4) that Premera'sjustification for her dismissal was prextexual ("absence of justification" element). See, ejj., Korslund v. DvnCorp Tri-Cities Servs.. Inc.. 156Wn.2d 168, 178, 181-82, 125 

### P.3d 119 (2005). "These elements are conjunctive, meaning that all four 

### elements must be proved." Cudnev v.ALSCO, Inc.. 172 Wn.2d 524, 529, 259 P.3d 244 (2011). Our Supreme Court has indicated that "thewrongful discharge

4The trial court ruled that a clearpublic policyexisted in favor of maintaining and protecting patient privacy interests. Neither partychallenges this ruling on appeal. 6Although the trial court did notaddress the "causation" element in itsruling, on appeal Premera avers that we may also affirm thetrial court's grant of summary judgment based on Rickman's failure to produce evidence necessary to create genuine issues ofmaterial fact as to the "causation" element. Because we affirm the trialcourt's rulingbased on the "jeopardy" element, we need not address Premera's averment.No. 70766-3-1/10

tort is narrow and should be 'applied cautiously.'" Danny v. Laidlaw Transit Servs.. Inc.. 165 Wn.2d 200, 208, 193 P.3d 128 (2008) (quoting Sedlacek v. Hillis. 145 Wn.2d 379, 390, 36 P.3d 1014 (2001)); accord Weiss v. Lonnquist. 173 Wn. App. 344, 352, 293 P.3d 1264, review denied, 178 Wn.2d 1025 (2013). Rickman makes two arguments in support ofher contention that the trial court erred with respect to the "jeopardy" element. First, that iterred by 

### concluding that no issues of material fact existed as to whether discouraging her conduct wouldjeopardize the public policy in favor of maintaining and protecting patient privacy interests. Second, that iterred by concluding that adequate alternative means ofpromoting this policy existed. Neither argument is persuasive. 

### "The jeopardy element sets up a relatively high bar." Weiss, 173Wn.App. at 352. Not only is the plaintiffrequired to "show that 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," she "must prove thatdiscouraging 

### the conductthat she engaged in wouldjeopardize the publicpolicy." Weiss. 173 

### Wn. App. at 352. "This burden requires a plaintiffto argue that other means for promoting the policy
... are inadequate.'" Pielv. City of FederalWay. 177 Wn.2d 604, 611, 306 P.3d 879 (2013) (alteration in original) (internal quotation 

### marks omitted) (quoting Gardner v. Loomis Armored. Inc.. 128Wn.2d 931, 945, 913 P.2d 377 (1996)). "Ifthere are other adequate means available, the public 

### policy is notinjeopardy and a private cause ofaction need not berecognized." Weiss, 173 Wn. App. at 352; see also Cudnev. 172Wn.2d at 530 (explaining that
-10-No. 70766-3-1/11 application of a "strict adequacy standard" produces "only a narrow exception to the underlying doctrine of at-will employment"). Although inquiry as to the "jeopardy" element is generally factual in nature, "the question whether adequate alternative means for promoting the public policy exist may present a question of law." Korslund. 156 Wn.2d at 182. Rickman argues first thatthe trial court erred by concluding that no issues ofmaterial fact existed as to whether discouraging her conduct wouldjeopardize the public policy in favor ofmaintaining and protecting patient privacy interests. This is so, she asserts, because itimproperly relied on the Supreme Court's decision in Dicomes to reach its conclusion. However, Rickman's efforts to distinguish Dicomes are unavailing. 

### The particular language from Dicomes that the trial court relied upon and with which Rickman takes issue is as follows: 

### In determining whether retaliatory discharge foremployee 

### whistleblowing activitystates a tort claim for wrongfuldischarge underthe public policyexception, courts generally examine the 

### degree ofalleged employerwrongdoing, togetherwith the reasonableness ofthe manner in which the employee reported, or attempted to remedy, the alleged misconduct.
113Wn.2dat619. 

### The whistleblowing activity in Dicomes occurred after a violation of the 

### law; however, nothingin that decision limits its application to instances in which whistleblowing postdates a violation. Moreover, Rickman offers nopersuasive
reason for cabining the application of Dicomes to its facts. Indeed, where an 

### employee reports concernwith potential employeractivity—as Rickman did

-11

-No. 70766-3-1/12
here—a trial court may examine the record to approximate the degree of wrongdoing, if any, that would have taken place inthe eventthat the employer had engaged inthe activity. Similarly, a trial court may examine the reasonableness ofthe manner in which the employee reported the potential misconduct or attempted to remedy it. Itwas properforthe trial courtto apply the standard in Dicomes to the facts in this case.6 

### Turning to the trial court's application ofDicomes. there was no error. The trial court was persuaded by the fact that Premera did not implementthe "risk 

### bucketing" plan and by Rickman's failure to apprise herselfof the details of the plan inorderto determine whether it was, in fact, illegal. After examining the trial court record and the parties' briefs, we cannot conclude that the manner in which 

### Rickman reported her concerns was reasonable, or that Premera—had it actually 

### implemented the "risk bucketing" plan—would have engaged in any degree of wrongdoing. Rickman's ignorance of the plan's details and legality, coupledwith her failure to make meaningful inquiries, gainsays her position that she reported her concerns in a reasonable manner. Moreover, she adduced no evidence that 

### the abandoned "risk bucketing" plan would have been illegal, relying only on her statement to Grover that the plan "had HIPAA written all over it." Guesswork and intuition do not meetthe high bar set bythe "jeopardy" element. Nogenuine 6Contrary to Rickman's intimation, our Supreme Court'sdecision in Cudnev, wherein it analyzes Hubbard v. Spokane County, 146Wn.2d 699, 50P.3d602 (2002), does not categorically bar a grantofsummaryjudgmentagainst a plaintiffwho raisesconcerns before a violation of the lawoccurs. Although Cudnev and Hubbard empower courts to protect a plaintiff who raises concerns beforewrongful activity occurs, they do not immunizethat plaintifffrom an adverse grant of summary judgment. Instead, courts must apply the standard in Dicomes to determine whether summaryjudgment should be granted.

12No. 70766-3-1/13
issues ofmaterial fact exist as to whether discouraging Rickman's conductwould jeopardize the public policy ofmaintaining and protecting patient privacy
interests. Rickman next argues thatthe trial court erred by concluding that adequate alternative means ofpromoting the public policy existed. This is so, she asserts, because (1) no Washington authority holds that an internal reporting system can 

### constitute an adequate means of promoting a public policy; (2) her method of 

### reporting was more effective than Premera's internal reporting system; and (3) the complaint mechanisms within HIPAA and UHCIA are only available for actual rather than potential noncompliance. We disagree. 

### The "strictadequacy" standard requires available adequate alternative


### means ofpromoting the publicpolicy; however, contrary to Rickman's first assertion, there is no indication that available alternative means must carry the force of law inorderto be adequate. Nevertheless, Rickman argues that a 

### private internalreporting system cannot be adequate, reasoning that ifitwere otherwise, then "an employer could simplyescape liability by creating a 

### complaint mechanism, regardless of whether itsubsequently terminated an employee fortaking action that promoted the public policy by preventing a law violation." Rickman reasons that were we to determine that Premera's internal 

### reporting system constituted an adequate alternative means ofpromoting the public policy, she would be leftwithout a private remedy against Premera, 

### despite the fact that she was responsiblefor preventing a law violation. Itfollows from this, she urges, that an alternative means isonly adequate ifit exposes the
-13-No. 70766-3-1/14 

### employerto liability. However, even assuming—without deciding—that Rickman did, infact, prevent a law violation, "[t]he Supreme Court has repeatedly 

### emphasized that itdoes not matterwhether or not the alternative means of enforcing the public policygrants a particular aggrieved employee any private 

### remedy." Weiss. 173 Wn. App. at 359. The effect ofthe Supreme Court's unswerving approach is thatthe question ofwhether an alternative means is 

### adequate is answered not byreference to the terminated employee's potential
recourse against the employer, but by determining whetherthe alternative means 

### promotes the publicpolicy at issue. Focusing on whether the public policy is 

### promotedensures that the wrongful discharge in violation ofpublic policy cause of action exists as "only a narrow exception to the underlying doctrine ofat-will 

### employment." Cudnev. 172Wn.2d at530. Were we to embrace Rickman's reasoning, wewould impermissibly broaden the narrow exception drawn bythe Supreme Court. 

### Nevertheless, Rickman asserts that direct reporting was a superior 

### method to utilizing Premera's internal reporting system. Not only is her assertion speculative, itfails to address the applicable standard, which is concerned not 

### with winnowing down theavailable alternatives until onlythe best oneremains but, rather,with establishing a baseline above which any availablealternative is considered adequate. Rickman had to presentevidence tending to show that 

### anonymous electronic ortelephonic reporting was an inadequate alternative means ofpromoting the public policy at issue. Yet, she failed tooffer any 

### evidenceimpugning the evidencein the record of Premera's robust internal
-14-No. 70766-3-1/15 reporting system. Given the existence of Premera's internal reporting system, which—as evidenced, in part, by the prompt investigation following Lopez's complaint against Rickman—appears, on this record, to be functioning effectively, we conclude that the system provided an available adequate alternative means by which Rickman could have reported her concerns, thereby promoting the public policy infavor ofmaintaining and protecting patient privacy interests. Therefore, without deciding whether HIPAA or UHCIA provided available adequate alternative means, we conclude that the trial court did not err in its ruling with respect to the "jeopardy" element. We affirmthe superior court's grant ofsummaryjudgment in favor of
Premera.

We concur: 

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