United States District Court, M.D. Tennessee, Nashville Division
PETER J. BONEWITZ, Plaintiff,
NEWQUEST, LLC, Defendant.
ALETA A. TRAUGER, District Judge.
Pending before the court is a Motion for Summary Judgment filed by the defendant, NewQuest, LLC ("NewQuest") (Docket No. 56), to which the plaintiff, Peter J. Bonewitz ("Bonewitz") has filed a Response in opposition (Docket No. 65), and NewQuest has filed a Reply (Docket No. 70). For the following reasons, the defendant's motion will be granted.
This dispute involves purported retaliation against an employee after he raised concerns about issues that he believed could have constituted violations of the federal False Claims Act. NewQuest is a subsidiary of HealthSpring, Inc. and an indirect subsidiary of Cigna Corporation. Bonewitz is a citizen of Carmel, Indiana.
HealthSpring is a Medicare Advantage ("MA") company which, as an alternative to traditional Medicare, contracts with the United States to offer Medicare-eligible participants healthcare and prescription drug care. MA companies code patients based on a diagnosis, and the diagnosis is used to formulate a risk score. Medicare pays MA companies a capitated rate that is adjusted based on the diagnosis and risk score of a patient. For patients with more severe conditions, Medicare pays to MAs upward adjustments due to higher capitation rates, and vice versa for patients with less severe conditions. MA plans are regularly audited by Medicare for compliance.
Bonewitz was hired by NewQuest on March 28, 2012, as a Systems Analyst/Level III Developer in the Business Intelligence unit of NewQuest's IT Department. Bonewitz claims that he was not hired to perform data warehouse development as a Level III developer, regardless of his title. On June 26, 2012, at the end of Bonewitz's initial ninety-day employment period, Bonewitz's supervisor, Wayne Johnson, rated Bonewitz's quality and quantity of work as "poor." Johnson noted that Bonewitz had "not been performing at the level he was hired" and had "not been able to deliver a complete task for the work he ha[d] been assigned." (Docket Nos. 56-1 at pp. 117-18; 56-3 at ¶ 5, Ex. 1.) Johnson also stated that he (Johnson) "had not been on the job very long and could not really make a fair assessment." (Docket No. 56-1 at p. 199.)
After receiving negative reviews, Bonewitz informed Johnson that he suspected HealthSpring was deliberately not looking for fraud as it related to member risk adjustment. On August 6, 2012, Johnson, with the support of Human Resources Director Kila Sweeney, gave Bonewitz a Final Notice for continued poor performance, documenting that Johnson had met repeatedly with Bonewitz about his poor performance without any improvement.
On August 13, 2012, Bonewitz sent an email to Richard Appel, Director of Corporate Compliance at NewQuest, stating that he believed he had discovered evidence that (1) HealthSpring was incentivizing doctors to perform overly-thorough examinations and (2) HealthSpring was encouraging internal fraud in support of upward adjustments to risk adjustment scores. NewQuest has stated that "Healthspring does not incentivize the increase of risk adjustment scores." (Docket No. 56-9 at ¶ 10.) NewQuest has further stated that "HealthSpring does encourage doctors to conduct more comprehensive medical exams because the more time a doctor spends with a patient, the greater the likelihood that the diagnosis will be accurate. Early, accurate diagnoses have been shown to reduce healthcare costs by identifying conditions at a point at which they are more treatable using lower-cost solutions." ( Id. ) On August 14, 2012, Bonewitz complained to Human Resources that Johnson was attempting to coerce him into resigning his job.
NewQuest had "Electronic System Acceptable Usage and Workstation Use" policies which governed individual employees' use of their work computer systems and email accounts. Upon investigation, NewQuest discovered that: (1) Bonewitz sent non-work related information, identified as "IndyTrader.com User Profiles, " from his work email account to a personal account, "email@example.com;" (2) Bonewitz sent data to "firstname.lastname@example.org" containing "TRR Data Mart" extract data, including what appeared to be a subset list of HealthSpring members, medical identification numbers, dates of birth and client names; (3) Bonewitz sent an email to an entity identified as "Immaculate-ds.com" which stated, "I received your invoice and payment has been made" (this part of the chain was later forwarded from his personal account to his work account along with a "database backup"); (4) Bonewitz sent data from "email@example.com" to his work e-mail address containing information about a problem opening data, saying, "Can you give me some feedback ASAP as to what you found with the connectivity issues. I have to demo the cube this morning;" and (5) personal email communications of Bonewitz's wife were found on Bonewitz's email server; they appeared to have been intercepted by Bonewitz and stored for his personal use on NewQuest's server. NewQuest concluded that Bonewitz had been improperly outsourcing parts of his assignments, along with company data, to a third party. Bonewitz denied this and claimed he was merely asking a third party for input. Bonewitz claimed the other instances were either not prohibited or standard practice for someone who sometimes worked from home.
On August 31, 2012, Bonewitz wrote an email to Appel. Bonewitz explained to Appel that ZotecPartners, a separate company, was not providing patients a means by which to dispute billing charges. Bonewitz believed this was relevant to NewQuest because these patients were, in many cases, also HealthSpring's patients and Bonewitz did not want NewQuest to ignore its patients' problems. On September 12, 2012, Bonewitz provided Patricia Hoffman, NewQuest's Director of Compliance and HIPAA Privacy Officer, additional information regarding these concerns.
On September 26, 2012, David O'Brien of Crowell & Moring, NewQuest's outside legal counsel, met with Bonewitz. Bonewitz explained his belief that HealthSpring was too aggressive with its prescreenings. Bonewitz also repeated his concerns about ZotecPartners's failure to provide a mechanism to dispute billing charges. Also on September 26, 2012, John Bogan, NewQuest's in-house legal counsel, met with Bonewitz. The purpose of this meeting is disputed. NewQuest maintains that the purpose of this meeting was to discuss Bonewitz's complaints about Johnson. Bonewitz claims he initiated the meeting by calling Bogan "regarding claims of fraud" and that Bogan flew in to meet him. According to Bonewitz, he explained his concerns of business fraud, including a timeline of whom he had spoken to and his views on how he was experiencing retaliation. Near the end of the meeting, the parties discussed Bonewitz's possible departure from NewQuest. Bonewitz maintains that Bogan asked him "for a number" and reminded him that he would have to release all legal claims. Two days later, Bogan called Bonewitz and asked for a number.
On October 8, 2012, in a 9:47 a.m. email, Bogan acknowledged that Bonewitz was making claims of "business fraud and employment retaliation" and indicated that Bogan wanted to "investigate and respond to [the] allegations properly." Bonewitz responded by explaining that he believed HealthSpring had its patients go through an overly-thorough initial medical examination with the goal of increasing the member's risk. Bonewitz communicated the belief that Healthspring had a fiduciary duty to explain the pros and cons of an extended exam to every patient. Bonewitz stressed that increased risks of fraud are prevalent with radiology (the business of ZotecPartners) in particular. In terms of the number that Bogan had requested, Bonewitz separately suggested $250, 000 in exchange for leaving the company, representing twenty-four months of severance and benefits (rounded down). Bonewitz maintains that he stated that he would continue working.
On October 11, 2012, Bonewitz sent Bogan an email in which he alleged that he had extracted records of 100, 000 patients from ZotecPartners and that many of those records were of HealthSpring patients. On October 12, 2012, Bonewitz contacted Bogan regarding (1) a news report that he had seen of what he described as a "bust" in Florida and (2) claims that he had been accessing HealthSpring's databases.
On October 12, 2012, Bonewitz's access to the company's computers was cut off. The parties differ as to why. According to NewQuest, the decision was made to temporarily cut off Bonewitz's access to company computers and place him on suspension until a determination could be made whether any HealthSpring patient information had been compromised. According to Bonewitz, Bogan told him that the company did not want him running queries and uncovering whether HealthSpring providers ...