MaryGay Kennedy Justice, Superior Court
On February 17 and 18, 2015,  a bench trial was held on plaintiff, Janet Enos, complaint that her employer, Orthopedic & Spine Physical Therapy of L/A, Inc. ("OSPT"), unlawfully terminated her employment in violation of the Maine Whistleblower's Protection Act, 26 MRS §833(1).
FINDINGS OF FACT
OSPT is an incorporated, independent outpatient physical therapy practice, owned by Shan Teixeira ("Teixeira"). Between February 2007 and April 2013, OSPT had two employees: Teixeira, the physical therapist and Janet Enos ("Enos") the receptionist/office manager. Teixeira terminated Enos' employment with OSPT on April 19, 2012.
As the only health care provider, Teixeira was responsible for seeing and treating patients, completing all patient and treatment documentation, patient "in and out" times as well as diagnosis and billing codes. Teixeira's duties also included supervising Enos and preparing her annual reviews and evaluations.
As the receptionist/office manager, Enos was responsible for answering the phones, greeting patients, entering patient insurance and demographic information, setting up patient files, sending bills to outside services, ordering supplies and general office maintenance. Enos was not responsible for, nor did she ever provide or prepare, patient treatment or treatment notes. She never determined a patient's diagnosis or billing codes. And, she never recorded "in and out" times spent with patients.
For the first two years, Teixeira and Enos appear to have worked fairly well together at OSPT. In her 2007 and 2008 reviews, Teixeira wrote that Enos was "overall doing an excellent job with office work, billing, keeping meticulous track of our finances, and with assisting with many other ancillary projects and tasks at OSPT. He also listed areas for improvement including, but not limited to, "continue to learn more about billing and insurance coverage, " and "stay abreast on insurance changes ([e.g.] reading mail flyers, and periodically reading updates online)." In 2008 Teixeira added, "Keep closer track of active/inactive patients." Enos was given an 8% pay raise and an additional week of paid leave in 2007 and a 4% pay increase in 2008. See Joint Exhibits 64 and 65.
The first indication that there was a problem in their working relationship arose after Enos' 2008 review and 4% pay increase. Enos had expected she would receive a greater salary increase. Instead of discussing the matter with Teixeira, Enos simply stopped speaking to him. When Teixeira learned the reason for Enos "silent treatment, " he started having concerns that her conduct was "unprofessional" and "disrespectful." Despite these concerns, Teixeira continued to appreciate Enos' clerical skills.
Teixeira asked Enos to attend a one-day continuing education course on physical therapy coding and billing on August 14, 2009. According to Enos, she found the course helpful. She was able to understand and apply the reading, including Medicare and MaineCare rules and regulations, to the practical aspects of her job.
On August 18, 2009, Teixeira asked Enos about the course. She provided him with a page of bullet points. She wrote, in part, "No more free or reduced visits!" "All copays must be paid (including your girlfriend)..." "People with health insurance cannot have the self pay option." See Joint Exhibit 2. Enos explained that her purpose in preparing the written summary was to bring to Teixeira's attention that certain things OSPT did in the practice violated Medicare and MaineCare rules and regulations. She also wanted to let him know that OSPT needed to develop written policies that would apply to all patients.
Teixeira was offended by the manner in which Enos prepared the summary. He also had questions about some of her comments, particularly those pertaining to pro bono work. He talked to other physical therapists and learned that, as long as OSPT is uniform in how it is done, he could continue to do some pro bono work. Teixeira tried to speak with Enos about what he had learned from the other physical therapists, but Enos did not want to talk about it. She said it had to stop because "it's illegal." Teixeira did not understand why Enos simply dismissed out of hand the information he relayed to her. He concluded she was attempting to dictate policy by telling him what OSPT could and could not do going forward.
On August 19, 2009, Teixeira prepared a written response to Enos' bullet points. While his note admonished her for trying to institute and mandate new policies, his primary focus was her "approach and attitude, " which he found to be disrespectful and overstepping boundaries. He reminded her that he had brought these concerns to her in the past and referenced the "Send Out Cards." (Emphasis supplied.) He wrote, "I do not mind that you expressed a disfavor for this approach, in fact, I appreciate and value your input (although it may not always appear that way). What I do not appreciate is the attitude and persistent negativity and resistance that have followed." See Joint Exhibit 4.
Teixeira referenced other conduct that caused him concern. He wrote, "[I]f I ask you to do something...you come back with "no you can do it." He also wrote, "[W]hen you do as you please and disregard my clear instructions you are being disrespectful."
Despite finding the manner in which Enos expressed her views to be "rude, " "dismissive" and "condescending, " Teixeira wrote, "I will look over some of your concerns and the info you provided and we can further discuss policy changes I might consider in the immediate future. He ...