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Wilkie v. Dep't of Health and Human Services

March 26, 2010


The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court


Before the Court is the Defendant's "Motion for Summary Judgment/Motion to Dismiss," filed on January 29, 2010. See Docket No. 42. The Plaintiff filed a response in opposition to the motion on March 1, 2010. See Docket No. 44. On March 9, 2010, the Defendant filed a reply brief. See Docket No. 49. For the reasons set forth below, the Court grants the Defendant's motion.


The plaintiff, Dr. Penny M. Wilkie, began employment with the Quentin Burdick Memorial Health Care Facility (Clinic) in Belcourt, North Dakota in January 2001 as the clinical director. The defendant, the Department of Health and Human Services (Department), operates the Clinic. In 2003, Wilkie contends that Todd Bercier, the administrative officer and acting CEO at times, began making sexually-suggestive comments to her. Wilkie testified that Bercier made a couple of comments at work "like, oh, I've always thought you were attractive since high school, and making reference to we should just go to like run off to Venezuela,..." See Docket No. 47, pp. 19-20. Wilkie testified that in 2004, Bercier rubbed his foot against hers while they were in a meeting with the CEO at the time, Linus Everling. Wilkie testified that she told Everling at the end of the meeting about Bercier's behavior, and that "[h]e said he didn't witness or see anything, and he said if I didn't put it in writing, then nothing -- it didn't happen." See Docket No. 47, p. 22. Wilkie did not submit a complaint in writing.

Wilkie testified that Bercier would call her at home while intoxicated. He came to her home unannounced on two or three different occasions in 2004. On one occasion in the fall of 2004, Wilkie came home and found Bercier sleeping in her bed naked with a red, sheer cloth over one of her lamps and a bottle of alcohol laying next to the bed. Wilkie testified that she slept on the sofa that night and woke Bercier up the next morning when his wife called wondering why he spent the night at Wilkie's. Later that morning, Bercier called the emergency room where Wilkie was working to apologize to her and Wilkie told him to "just forget it." See Docket No. 47, p. 29. Wilkie testified that she then told Bercier for the first time that his conduct was inappropriate and unwelcome. See Docket No. 47, p. 110. Wilkie said people in the community were calling her names because of this incident, but she did not report it because she was embarrassed. When asked whether she had any concerns for her own safety or well-being, Wilkie responded, "When he was coming to my home and how he got into my home, yeah I did." See Docket No. 47, pp. 25-26. Bercier never called Wilkie nor came to her home after that one evening in the fall of 2004. See Docket No. 47, p. 33. Wilkie testified that she spoke to several CEOs about Bercier being impaired at work but never mentioned anything about Bercier coming over to her home.

Wilkie testified that on July 20, 2005, Bercier withheld information from her relating to one of her subordinates (Dr. Plasse) taking pharmaceuticals from the emergency room. Wilkie said that Bercier told another subordinate (Dr. Earls) not to tell Wilkie because she and Dr. Plasse were having an affair and that Wilkie was under psychiatric care.

The record reveals that Wilkie first contacted an Equal Employment Opportunity (EEO) counselor on August 2, 2005. See Docket No. 20-4. When asked what actions she alleged as constituting harassment in the EEO complaint, Wilkie responded: "When -- I think what really upset me is when [Bercier] didn't inform me that -- of missing pharmaceuticals from the emergency room that Dr. Plasse supposedly had taken, and [Bercier] had made comments to Dr. Earls not to tell me because I was having sexual relationships with Dr. Plasse." See Docket No. 47, p. 32. Bercier was acting CEO while the CEO at the time, LaVerne Parker, was absent from the Clinic. After filing the EEO complaint in August 2005, Wilkie testified that Bercier seemed hostile.

Q: [Counsel for Wilkie] Did you -- did you believe that [Bercier] was monitoring or stalking you at the clinic?

A: [Wilkie] For that week LaVerne was gone, yeah. It was -- made my life miserable.

Q: [Counsel for Wilkie] Well, describe what happened.

A: [Wilkie] Everything. To accusing me of being like hostile with the staff, accusing me of basically not doing my job, being incompetent, you know, just on me. I mean, you could -- I don't specifically remember everything, but, I mean, I did provide those e-mails.

See Docket No. 47, p. 34.

Bercier's alleged hostile conduct in August 2005 and thereafter included: (1) Bercier attended a medical staff meeting and made comments that Wilkie felt were confrontational to her and others; (2) Bercier questioned Wilkie about comments she had made to a co-worker; (3) Bercier contacted Wilkie about her inefficiencies monitoring physicians and the time it takes to transfer medical charts; and (4) Bercier referred patients with complaints regarding the pharmacy to Wilkie. Wilkie testified she "couldn't take it anymore" and was granted leave to see a counselor with the employee assistance program. See Docket No. 47, pp. 34-35.

On November 14, 2005, Wilkie sent CEO Parker an email that stated, "I have contacted Vina Bohling for a request for Transfer... I do not wish to leave this service unit as I have several ties to the community, if things do no[t] change th[e]n I feel forced to leave." See Docket No. 43-5, p. 21. Wilkie said that CEO Parker told her she could arrange a transfer. See Docket No. 47, pp. 81-82.

On February 15, 2006, Dr. Plasse and Dr. Lau called a meeting of members of the medical staff to address Wilkie's position as clinical director. The previous clinical director had been removed by the medical staff. See Docket No. 47, p. 55. A vote of "no confidence" was held and the majority of the medical staff voted to remove Wilkie as clinical director. Wilkie contends that proper procedures for the vote were not used, and both Dr. Plasse and Dr. Lau undermined her authority by calling the meeting. Upon finding out about the vote of "no confidence", Wilkie immediately reported it to CEO Parker. See Docket No. 47, p. 56. After the vote of "no confidence", several doctors verbally complained to CEO Parker about Wilkie, and Parker sent Wilkie a letter regarding the complaints. CEO Parker also requested assistance from the human resources department in Aberdeen, South Dakota. Several staff members were interviewed regarding Wilkie's job performance. Around the same time period in February 2006, CEO Parker denied Wilkie leave to attend a continuing medical education course in Las Vegas. See Docket No. 47, pp. 67-69. During this time frame, Wilkie testified that she did not feel threatened or under any pressure from Todd Bercier. See Docket No. 47, p. 57. Wilkie said she did not know whether Bercier was involved in calling the meeting where the vote of "no confidence" was taken, and Wilkie acknowledged that Bercier did not participate in the meeting. See Docket No. 47, p. 57.

On March 17, 2006, Wilkie resigned for the following reasons:

Well, there was many, many multiple reasons. A lot of my concern was with how I was being just basically brushed aside as clinical director and my responsibilities were not being seriously taken or being accused of not doing my job, which I still don't understand what I did wrong, and in how patient care was jeopardized by having administration bring providers into the facility that were never cleared by the medical staff, and yet I just don't understand how that could be just not looked at and taken seriously when you're dealing with patients. You just don't allow somebody to walk in your facility and start working on human beings without having something in their file.

How I was brushed aside and not told about missing pharmaceuticals from the facility and this is a department that I'm responsible for. How administration could just totally ignore policies and procedures of our facility that are there for a reason to prevent chaos from happening and also to ensure that our facility is accredited with joint commission, Medicare/Medicaid services, and yet they can be totally ignored.

How biased the investigation was that only certain members of the medical staff were solicited for negative comments, and people that went to speak on my behalf were dismissed, and that was -- those conversations were never recorded or given to my supervisor. How --See Docket No. 47, pp. 58-59. Wilkie testified that Bercier was, in part, one of the reasons she resigned. See Docket No. 47, p. 92. Wilkie reported the alleged harassing conduct that occurred in 2004 after she submitted her resignation in March 2006.

Wilkie filed a complaint in federal district court on April 2, 2007. See Docket No. 1. The Department filed a "Motion to Dismiss/Motion for Summary Judgment" on October 15, 2007. See Docket No. 17. On March 24, 2008, the Court issued an "Order Granting in Part and Denying in Part Defendant's Motion to Dismiss." See Docket No. 27. The Court granted the Department's motion to dismiss Wilkie's Title VII claim because the Court lacked subject matter jurisdiction due to Wilkie's failure to exhaust administrative remedies. The Court denied the Department's motion to dismiss as it related to the tort and constitutional claims and held such claims in abeyance pending a final decision from the Merit Systems Protection Board (MSPB).

On July 24, 2008, an administrative law judge for the MSPB issued an "Initial Decision." See Docket No. 43-7. The ALJ found that Wilkie failed to show that her resignation was involuntary, and dismissed Wilkie's appeal "as outside of the Board's appellate jurisdiction." See Docket No. 43-7. Wilkie filed a petition for review asking the MSPB to reconsider the initial decision issued by the ALJ. On October 22, 2008, the MSPB issued its "Final Order." See Docket No. 43-6, pp. 26-29.

The MSPB denied the petition for review and concluded "that there is no new, previously unavailable, evidence and that the administrative judge made no error in law or regulation that affects the outcome." See Docket No. 43-6, pp. 26-27.

On November 21, 2008, Wilkie filed a new complaint in federal district court (Case No. 4:08-cv-100, Docket No. 1), claiming she had exhausted her administrative remedies and reasserting the causes of action set forth in her original complaint. On December 11, 2008, the Court issued an order of consolidation in which the Court ordered that Case No. 4:07-cv-027 shall be the lead file. See Docket No. 29. The complaint contains six causes of action against the Department: (1) violation of the rights guaranteed to Wilkie by Title VII of the Civil Rights Act of 1964; (2) intentional infliction of emotional harm; (3) negligent infliction of emotional harm; (4) denial of Wilkie's First and Fourteenth Amendment ...

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