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Bollinger v. Billings Clinic

Supreme Court of Montana

February 12, 2019

RONIS BOLLINGER, Petitioner and Appellant,
v.
BILLINGS CLINIC, Respondent and Appellee.

          Submitted on Briefs: November 14, 2018

          APPEAL FROM: District Court of the Twenty-Second Judicial District, In and For the County of Stillwater, Cause No. DV 16-059 Honorable Blair Jones, Presiding Judge.

          For Appellant: Philip McGrady, McGrady Law, Whitefish, Montana Veronica Alyn Procter, Procter Law, PLLC, Billings, Montana

          For Appellee: Edward Butler, Butler Law, LLC, Colorado Springs, Colorado

          OPINION

          Ingrid Gustafson Justice.

         ¶1 Plaintiff Ronis Bollinger (Bollinger) appeals from the order of the Twenty-Second Judicial District Court, Stillwater County, affirming the Montana Department of Labor and Industry's Human Rights Bureau's (HRB) Hearing Officer Decision and Notice of Issuance of Administrative Decision (Decision), which concluded Bollinger was properly terminated from her employment with the Billings Clinic (the Clinic). We affirm.

         ¶2 We restate the issues on appeal as:

I. Whether the District Court erred in upholding the Human Rights Bureau's decision that Bollinger was properly terminated by the Clinic.
II. Whether the District Court erred in upholding the Human Rights Bureau's denial of Bollinger's motion to compel Clinic production of certain emails.
III. Whether the District Court erred in awarding costs to the Clinic.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 Bollinger is a registered nurse with over 40 years of experience, more than 15 years of which were at the Clinic. In 1998, 2002, and 2012, Bollinger signed then-current versions of the Clinic's Confidentiality Policy and Agreement, agreeing she would guard and treat as confidential all information pertaining to patients, she would access patient information only on a need-to-know-for-job-functions basis, and the Clinic could discipline or discharge her if she did not comply with this policy.

         ¶4 The first decade of Bollinger's employment at the Clinic went smoothly. From 1998 until 2008, Bollinger had one write-up, but no other disciplinary action. In 2008, Bollinger's coworker C.K. experienced a privacy breach when another employee logged into the Clinic's patient database to look at C.K.'s personal medical records without a need-to-know-for-job-function basis. When the Clinic initially learned about the possible patient privacy breach, the Director of Nursing attended a meeting, which Bollinger also attended, to advise employees there may have been a privacy breach, and to caution employees not to discuss the matter amongst themselves. During its investigation of the possible privacy breach, Human Resources (HR) interviewed Bollinger about the matter, and Bollinger asserts she became an unwilling witness against the Clinic.[1] However, the Clinic concluded Bollinger had no relevant information about the matter. After the interview, HR again advised Bollinger not to discuss the matter with anyone other than her immediate supervisor.

         ¶5 In January 2009, the Clinic learned that Bollinger had spoken to a coworker about the C.K. matter. HR again advised Bollinger not to discuss it. Two days later, the Clinic learned that Bollinger had again discussed the C.K. matter, this time over the telephone. HR met with Bollinger again. Bollinger admitted discussing the C.K. matter, even though HR had repeatedly advised her not to do so. Bollinger believes HR harassed and bullied her during these encounters.

         ¶6 The Clinic took Bollinger's failure to follow direct orders seriously, placing her on administrative leave and advising her it would place a disciplinary letter in her file. Bollinger then filed a retaliation complaint with the United States Department of Health and Human Services Office of Civil Rights (OCR), asserting the Clinic retaliated against her by harassing her, placing her on administrative leave, and issuing her a disciplinary letter because of her participation as a witness in the C.K. matter. [2]

         ¶7 Prior to the C.K. matter, the Clinic had usually scheduled Bollinger's work shifts so that she received two consecutive days off each week. After this conflict arose, the Clinic increasingly scheduled her with non-consecutive days off. Bollinger, who had become increasingly distrustful of the Clinic, believed the scheduling change was intentional. Because she had relied on the two consecutive days off to address health concerns, she requested an accommodation to her work schedule to be given Monday and Tuesday off on a regular basis. After providing a doctor's verification of her need for this accommodation, the Clinic agreed to accommodate her request to have two consecutive days off each week. The Clinic indicated the two consecutive days off would usually be Monday and Tuesday, but would occasionally be other days. Bollinger agreed, and the Clinic drafted a memorandum to that effect. Bollinger believed the Clinic failed to honor this agreement and did so deliberately out of hostility toward her because of the C.K. matter and her accommodation request.

         ¶8 On October 31, 2012, Bollinger filed an administrative complaint against the Clinic with the HRB, alleging disability discrimination and failure to accommodate. Thereafter, Bollinger became increasingly suspicious of her superiors and believed they were plotting against her. Because she believed her career was in jeopardy, she kept track of any injustices she perceived in her scheduling.

         ¶9 On January 18, 2013, Bollinger was assigned what she believed was a challenging day of multiple surgeries with a demanding surgeon. Bollinger believed the nurse assigned to work with her on this shift was inexperienced, making the day more difficult. Bollinger did not have any lunch-break relief assigned. She feared she would be unable to take a break as she was worried about leaving the inexperienced nurse alone, but she also had concerns about whether she herself could safely work the shift without a break. She considered this a patient safety concern.

         ¶10 Bollinger took the surgery schedule-which contained confidential patient information-to her direct supervisor to discuss the schedule and her concerns. Bollinger testified her supervisor refused to discuss the schedule and referred her to HR. Contrarily, Bollinger's supervisor denied Bollinger tried to discuss the schedule, testifying she would have discussed the schedule with Bollinger and she would never have told Bollinger to take the schedule to HR due to confidentiality issues.

         ¶11 At the end of her shift, Bollinger retained a copy of the surgery schedule instead of leaving it for shredding as required by Clinic policy. Believing the conflict she perceived between the Clinic and herself had escalated to the point where patient safety might be in jeopardy, and to support her pending HRB complaint, Bollinger gave the surgery schedule to her attorney and retained a copy for herself. Thereafter, her attorney provided a copy of the surgery schedule with patient information redacted to the HRB investigator. The HRB sent a copy of the redacted schedule it received from Bollinger's attorney to the Clinic.

         ¶12 Bollinger continued to raise concerns about the surgery schedule with Clinic management. Bollinger went to the supervisor in charge of her scheduling, who Bollinger claims told her to talk to Ellen James in HR. Contrary to the Clinic's policies regarding patient privacy, Bollinger took her copy of the January 18, 2013 surgery schedule to James. Due to confidentiality issues, James refused to read the surgery schedule and refused to discuss Bollinger's concerns. Bollinger testified that she shredded her copy of the schedule after that meeting.

         ¶13 James reported the incident to the Clinic management. Prompted by James's report and the Clinic's receipt of the redacted surgery schedule from the HRB, the Clinic ...


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