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Thomas v. Macomb County

United States District Court, E.D. Michigan, Southern Division

January 11, 2018

ROSA THOMAS, Plaintiff,



         Plaintiff Rosa Thomas filed a complaint alleging that she was constructively discharged by the defendants from her job as a Clinical Strategist and Improvement Director at Macomb County, Michigan's Community Mental Health Division. That followed a disciplinary proceeding when she was accused of granting access to medical records in violation of the Health Insurance Portability and Accountability Act (HIPAA) and given a two-day suspension, which was later reversed. She contends that her discharge amounted to national origin discrimination in violation of Title VII of the Civil Rights Act of 1964 (she was born in Peru), and violated her right to procedural due process. After a full opportunity for discovery, the defendants have moved for summary judgment. The undisputed facts show that Ms. Thomas was not constructively discharged; she quit. There is no evidence that any of the defendants' actions were motivated by her Peruvian ancestry. And she was afforded due process during disciplinary proceedings. The Court will grant the defendants' motion and dismiss the case.


         The basic facts of the case are undisputed. Plaintiff Rosa Thomas was born in Peru and moved to the United States after receiving the Peruvian equivalent of a Master's Degree in Psychology. She was issued a limited license to practice by the American Board of Psychology. In August 2016, she was hired by defendant Macomb County Community Mental Health Division (MCCMHD), where she was employed as a Director of Clinical Strategies and Improvements.

         One of Thomas's duties was to handle requests by various outside entities for access to the County's database of protected health information, which is maintained in a computer system known as "FOCUS." In order to receive access, such entities were required to execute a "Business Associate Agreement" and a "Qualified Service Agreement" with the County, which governed their use of any information to which they were allowed access. Among other things, those agreements required the entities to ensure that they requested and used only the "minimum necessary" access to the FOCUS system needed to perform their appointed tasks. Thomas testified that it was her understanding, and the practice and policy of the County, that as long as those agreements were in place, the entities would be allowed access to those portions of the system that they needed in order to complete whatever tasks the County had retained them to perform.

         The FOCUS system regulates access by users based on which "service area" is assigned to that user; those service areas are designated with labels such as "clinical, " "claims, " and "audit." An entity's access to the "clinical" and "claims" service areas can be restricted on a record-by-record basis. However, the system apparently is not capable of imposing discrete record restrictions for the "audit" service area. A user granted access to that service area is allowed to access all files stored in the system without restriction, regardless of how many files they actually need to review to perform their task.

         On April 12, 2016, a representative of Molina Healthcare contacted the County and requested access to seven specified files in the FOCUS system, for the purpose of performing an audit. The request was routed to the plaintiff, and, after she determined that Molina had executed the required agreements, she issued a password for the system that allowed Molina's representative to access the "audit" service area. Because of the system characteristics explained above, that setting allowed Molina to view all the electronic records stored in the system.

         Some time later, MCCMHD's Corporate Compliance Officer, Kimberly Cope, learned that Molina had been granted access to the "audit" service area in FOCUS, and she undertook an investigation to determine if the access properly was granted. As a result of that investigation, on May 27, 2016, Thomas received a letter notifying her that she would have to appear at a disciplinary hearing to answer a charge that she improperly allowed an external contractor access to all records in the FOCUS database. The letter stated the charge as follows:

On or around April 12, 2016 and at your direction as Program Director and authority for [the] Clinical Services / Quality Improvement Department, you authorized and arranged for a Molina contract agent to have view access to the entire Macomb County CMH FOCUS electronic medical record.
Your decisions in this regard are deemed to be violations of HTPAA regulations to protect the privacy of individually identifiable health information. Further, your actions are violations [of the] Michigan Mental Health Code [and] 45 C.F.R. 160.203(b) and 42 U.S.C. 1320d-2(c)(2).

         Thomas appeared at the hearing, where she was represented by counsel (also her attorney of record in this case). She contends that she was "ambushed" at the hearing when she was required to respond to further charges that her handling of the access control request constituted a violation of the defendant's policy for handling protected health information; that charge was not mentioned in the notice letter. At the hearing, the hearing officer discussed the information gathered in the investigation, Thomas spoke on her own behalf, and her attorney argued orally against the imposition of discipline. At the end of the hearing, those present were asked if they had "anything else to add, " and presumably answered in the negative. After the hearing, Thomas received a letter notifying her of the decision, which stated:

Upon completion of the investigation, the conclusion is that you did authorize for a Molina contract agent to have access to the Macomb County CMH FOCUS electronic medical record, and said access to the records was in violation of standards for release of Protected Health Information. For this reason, you are being issued a two (2) day non-paid disciplinary suspension for June 09, 2016 and June 10, 2016 with a return to work dated of June 13, 2016.
If you are involved in similar misconduct in the future, you will be subject to progressive discipline up to and including discharge.

         On June 8, 2016, Thomas asked to meet with Karen Bathanti, the defendant's Director of Human Resources and Labor Relations, to discuss the hearing process. Thomas informed Bathanti at that time that she was looking for a new job.

         On June 14, 2016, Thomas submitted a seven-page appeal letter challenging the disciplinary decision, in which she asserted that she was not afforded sufficient due process, she should not have been subjected to any discipline because it was determined at the hearing that no HIPAA violation occurred, and she was treated differently for handling the access control request the same way than other (non-minority) employees had handled such requests, citing one example. On November 2, 2016, Eric Herppich, the County's Director of Human Resources and Labor Relations (the record indicates that Bathanti and Herppich both held this title; it is unclear whether Herppich was a peer or successor to Bathanti, or whether the County denotes all HR officers as "directors."), sent a letter to Thomas stating that he had "reviewed your June 15, 2016 appeal of the circumstances that caused you to receive a two (2) day disciplinary suspension and concluded that the discipline will be removed from your file."

         Herppich did not elaborate in his letter on the basis for the reversal, but at his deposition he testified that he decided to rescind the discipline based on his finding that the sanction for violating a supposed access ...

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