Graciani v. Providence Health & Services et al

Filing 113

ORDER denying 99 Motion to Amend/Correct Amended Complaint; denying 100 Motion to Unseal Document; granting 102 Motion to Seal Document. The Court will not grant attorney's fees to either party with respect to these motions. Signed by Judge Sharon L. Gleason on 1/10/20. (JLH, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

DEBRA RENA GRACIANI,
Plaintiff(s),
v.
PROVIDENCE HEALTH &
SERVICES, KELLI RINAS,
JAMES EFIRD, BRENDA FRANZ,
and JAMES BLANKENSHIP,

Case No. 3:18-cv-00087-SLG

Defendants.

ORDER RE PENDING MOTIONS
Before the Court at Docket 99 is Plaintiff Debra Rena Graciani’s Motion to
Permit Second Amendment of Complaint After Expiration of Deadline to Amend.
Defendants Providence Health & Services, Kelli Rinas, James Efird, Brenda Franz,
and James Blankenship (“Defendants”) responded in opposition at Docket 106.
Plaintiff replied at Docket 109.
Also before the Court are Plaintiff’s Motion for Filing Document Under Seal
and Plaintiff’s Motion to Challenge Confidentiality and Notice of Filing Document
Under Seal at Docket 102 and Docket 100, respectively. Defendants responded
in opposition to Plaintiff’ Motion to Challenge Confidentiality at Docket 104. Plaintiff
replied at Docket 108.

I.

Plaintiff’s Motion to Amend/Correct the Complaint

On March 23, 2018, Plaintiff commenced this action against Defendants
alleging violations of Title VII, 42 U.S.C. § 1981, and 42 U.S.C. § 1985(3) arising
from discrimination during the course of her employment as a registered nurse at
Providence Health & Services (“Providence”).1 Plaintiff was terminated on or
around November 1, 2016 by letter signed and delivered by Vicky Phillips, the
Director of Clinical and Business Operations at Providence, “for allegedly failing to
follow proper handoff protocols when transferring [a] patient back to the room.”2
On August 1, 2018, the Court issued its scheduling and planning order, providing
that motions to amend the pleadings “shall be served and filed not later than 30
days after deadline for initial disclosures.”3 It further provided that the deadline
for initial disclosures was August 29, 2018; thus, the deadline to amend the
pleadings was September 28, 2018.4 Plaintiff did not move to amend the complaint
before that deadline.

1

Docket 1 at 2, ¶ 4; Docket 1 at 12–16, ¶¶ 69–80.

Docket 1 at 12, ¶ 63; Docket 99 at 2; Docket 99-3 at 2, ¶ 9. Following grievance and arbitration,
Ms. Graciani was reinstated. Docket 99-3 at ¶ 68.
2

3

Docket 25 at 5 (emphasis in original).

4

Docket 34; Docket 31.

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On October 9, 2018, Defendants filed a motion to dismiss Plaintiff’s §
1985(3) claim (Claim V), which the Court granted on April 8, 2018, dismissing the
claim without prejudice and with leave to amend.5
On April 19, 2019, Plaintiff filed a motion to amend the complaint pursuant
to Fed. R. Civ. P. 15(a). Plaintiff’s motion sought to (1) add numerous additional
factual allegations, (2) add individual defendants to the § 1981 claim (Claim IV),
and (3) amend one of the Title VII claims (Claim III).6 Notably, Vicky Phillips was
not among the defendants that Plaintiff sought to add. On May 6, 2019, the Court
informed Plaintiff at oral argument that the motion to amend was untimely insofar
as it sought to amend the § 1981 and Title VII claims, and informed Plaintiff that
she would have to move under Rule 16(b) to amend the scheduling order to permit
amendment of those claims.7
On May 13, 2019, without withdrawing her first motion, Plaintiff filed another
motion to amend the complaint, this time under Rule 16(b), proposing the same
amendments.8 On July 22, 2019, the Court denied Plaintiff’s first motion to amend
(brought under Rule 15(a)) on the basis that it was filed more than six months after
the deadline to amend pleadings.9 But the Court allowed Plaintiff’s proposed

5

Docket 42; Docket 54.

6

Docket 61-1.

7

Docket 74 (Minute Entry); Docket 90 at 4.

8

Docket 78.

9

Docket 90 at 6.

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amendments to add factual allegations to the extent they were permitted by the
Court’s order at Docket 54 relating to Plaintiff’s §1985(3) claim.10 Moreover, under
Rule 16(b), the Court allowed the proposed amendments to the Title VII claim and
to the § 1981 claim.11 Plaintiff filed her amended complaint on July 22, 2019.12
On November 26, 2019, Plaintiff filed the current motion to amend/correct
the amended complaint, seeking to add Vicky Phillips as a defendant.13 As a result
of Plaintiff’s motion, the parties filed a joint motion to extend certain deadlines,
which the Court granted, including the deadline for discovery motions, now
December 30, 2019, and for dispositive motions, now January 31, 2020.14
In her motion to amend/correct the complaint, Plaintiff explains that she was
previously unaware of the extent of Ms. Phillips’ involvement in the events
underlying the allegations in the complaint.15 Although Plaintiff acknowledges that
Ms. Phillips “signed and presented [her] termination letter” and “attended two of
the union meetings,” Plaintiff maintains that she only discovered Ms. Phillips’ role
in the events at issue in this case through emails produced by Defendants on

10

Docket 90 at 6.

11

Docket 90 at 7–8.

12

Docket 91.

13

Docket 99 at 1.

14

Docket 101; Docket 103.

15

Docket 99 at 1–2.

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January 31, 2019.16 Specifically, Plaintiff relies on two email chains, attached as
Exhibits 1 and 2 to the motion, to assert that she “now has evidence that Ms.
Phillips was taking an active role in the group effort to develop a strategy to get rid
of [her].”17
Defendants oppose Plaintiff’s request, emphasizing that the “only basis for
Plaintiff’s proposed amendment are a couple of emails produced by Defendants
nearly a year ago – which Plaintiff had for more than 6 months before she filed her
last amended complaint in July 2019.”18 Defendants contend that good cause
does not exist to permit the proposed amendment because Plaintiff has not been
diligent. Specifically, they emphasize that Plaintiff knew that Ms. Phillips may have
relevant information, given that she signed the termination letter and attended
grievance meetings, but that Plaintiff “made no efforts throughout the course of
discovery . . . to verify this.”19 Defendants add that Plaintiff’s purportedly new
evidence, the two email chains, were produced to her on January 31, 2019, and
that only lack of diligence could explain her approximate 10-month delay in seeking
leave to amend.20 Defendants contend that they would be prejudiced by the
amendment because discovery would need to be reopened, and the dispositive

16

Docket 99 at 2.

17

Docket 99 at 2–3.

18

Docket 106 at 2.

19

Docket 106 at 7.

20

Docket 106 at 7–8.

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motion deadlines would have to be pushed back again.21 Moreover, Defendants
maintain that the amendment would be futile, because Plaintiff’s allegations
against Ms. Phillips based on the two email chains “do nothing to implicate Ms.
Phillips . . . of conspiracy” and thus do not “establish that claims under Section
1981 or Section 1985(3) against Ms. Phillips would have any reasonable chance
of success.”22 Finally, Defendants request that the Court award sanctions to
Defendants in an amount equal to the fees incurred in opposing the motion.23
Plaintiff, in turn, defends the delay in bringing the current motion to amend,
noting that “until [Plaintiff] found the [emails] . . . there was not information to
conclude that Ms. Phillips was playing an active role in working to undermine
[Plaintiff’s] employment.”24 Plaintiff maintains that Ms. Philips “did not participate
in the investigation that led to the termination” and therefore the termination letter
that she signed was not evidence of “an active role.”25 Plaintiff adds that her
“understanding was that [Ms. Phillips’] role [in signing and delivering the letter] was
proxy for” another defendant, who was out of the office.26 Plaintiff’s counsel
explains that it took time to go through the 3,375 pages of discovery produced on

21

Docket 106 at 10–11.

22

Docket 106 at 8–10.

23

Docket 106 at 12.

24

Docket 109 at 2.

25

Docket 109 at 2.

26

Docket 99 at 2.

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January 31, 2019 because she relied on Plaintiff’s assistance to decipher the
documents, and was otherwise busy litigating this case and attending trial in July
in another case.27 As such, Plaintiff only came across the relevant email chains
on October 15, 2019.28

Plaintiff blames Defendants, in part, for the delay,

highlighting the evasiveness of their responses to her interrogatories where
“[i]nstead of answering directly, [Defendants] stated objections.”29

Plaintiff

disputes that the amendment will cause any prejudice to Defendants, maintaining
that discovery need not be reopened and emphasizing that there is no set trial
date.30 Finally, with respect to the substance of the emails, Plaintiff maintains that
they demonstrate “the racial discrimination that takes place at Providence” and
implicate Ms. Phillips in actions taken behind Plaintiff’s back about which she could
not have previously known.31
“Once [a] district court ha[s] filed a pretrial scheduling order pursuant to
Federal Rule of Civil Procedure 16 which establishe[s] a timetable for amending
pleadings,” Rule 16 controls.32 Under Rule 16(b), a court’s pretrial scheduling

27

Docket 110 at 2.

28

Docket 110 at 2–3.

29

Docket 109 at 3.

30

Docket 109 at 5.

31

Docket 109 at 4.

32

Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607–08 (9th Cir. 1992).

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order can only be modified “for good cause.”33 The “good cause” inquiry “primarily
considers the diligence of the party seeking the amendment.”34 While “prejudice
to the party opposing the modification might supply additional reasons to deny a
motion, the focus of the inquiry is upon the moving party’s reasons for seeking
modification . . . [and] [i]f that party was not diligent, the inquiry should end.”35
The Court finds that Plaintiff has not demonstrated diligence or good cause
to modify the Court’s pretrial scheduling order to permit the proposed amended
complaint. Given that Ms. Phillips signed and delivered the termination letter and
attended grievance meetings, Plaintiff could have inquired during discovery (which
is now closed) whether Ms. Phillips had any further involvement in the events at
issue in this case rather than assuming otherwise based on Plaintiff’s
“understanding” of Ms. Phillips’ role.36 Moreover, Plaintiff has had the emails on
which she bases her motion since January 31, 2019, ten months before she filed
this motion, and six months before the Court granted her last request to amend the
complaint. In that instance, the Court warned Plaintiff’s counsel that she had not
been the “model of diligence” and only granted Plaintiff permission to amend the
complaint because an extension to discovery had mitigated the prejudice to

33

Fed. R. Civ. P. 16(b)(4); see also Mammoth Recreations, Inc., 975 F.2d at 608.

34

Mammoth Recreations, Inc., 975 F.2d at 609.

35

Id.

36

Docket 99 at 2.

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Defendants.37 Now, discovery is closed, and no such mitigation exists. Because
the Court finds that there is not good cause to modify the scheduling order to allow
Plaintiff to amend the complaint, it need not reach the question of whether the
proposed amendment would have been futile.
II.

Plaintiff’s Motion to Challenge Confidentiality and Notice of
Filing Document Under Seal

On August 24, 2018, the parties filed a proposed protective order, which the
Court entered on August 30, 2018.38 The Protective Order provides that the parties
can mark materials as confidential, thereby setting limits on their disclosure. 39
Confidential materials are defined as including:
confidential or sensitive proprietary, business, commercial, and
personal information, including, but not limited to, medical records and
information relating to person [sic] who are not parties to this case and
information about former employees or contractors that is of a
confidential or private nature, including current or former employees’
names, residence addresses, and telephone numbers; other
personnel or business information that could unnecessary [sic]
expose one or more of the defendants to liability if disseminated to the
public and/or that parties believe one or more of them may have an
obligation to protect as private information.40

37

Docket 90 at 9.

38

Docket 33; Docket 36.

39

Docket 33 at 2–3.

40

Docket 33 at 2.

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In the event a party wishes to file confidential material with the Court, the
Protective Order provides that the parties shall meet and confer to determine
whether “the designating party will remove the confidential designation, whether
the document can be redacted, or whether a motion to seal or stipulation and
proposed order is warranted.”41
In connection with Plaintiff’s pending motion to amend the complaint,
Plaintiff’s counsel requested that Defendants lift the “confidential” designation on
two email chains she wished to attach as exhibits.42 Defendants agreed to remove
the confidentiality designation for one of the exhibits—provided last names were
partially redacted—but would not agree to do so for the other.43 Accordingly, when
Plaintiff filed the pending motion to amend/correct the complaint, she filed the email
chain under seal, as Exhibit 1.44 However, Plaintiff simultaneously filed a motion
to unseal Exhibit 1.45
The email chain at issue in Exhibit 1 is between InYoung Lee, the
Providence HR Strategic Partner, and members of Plaintiff’s management team,
including Vicky Phillips, and Kelli Rinas, Clinical Nurse Manager, James Efird,

41

Docket 33 at 4 (Section 4.3).

42

Docket 100 at 2; Docket 100-1.

43

Docket 100 at 2.

Docket 99 at 3; Docket 99-1. On December 2, 2019, Plaintiff followed up with a motion to seal
Exhibit 1, for completeness. Docket 102 at 1.
44

45

Docket 100.

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Assistant Clinical Manager, and Brenda Franz, Director of Medical Surgical
Services.46 Ms. Lee’s email summarizes talking points for a meeting scheduled
with Plaintiff the following day, including a collection of issues and concerns raised
by her coworkers.47 Among other things, the list includes specific examples of
Plaintiff’s alleged treatment of patients.48
In her motion to unseal Exhibit 1, Plaintiff contends that it “does not fit under
any parameter of the definition of confidential material” as defined in the Protective
Order.49 Plaintiff relays that during the meet-and-confer, Defendants only raised
two concerns: the disclosure of employees’ names and Defendants’ potential
exposure to further litigation because of the contents of the email chain.50 Plaintiff
maintains that the first concern could be alleviated by redacting the names of the
employees, and that the second concern is baseless as the email chain does not
disclose any “medical errors.”51 Lastly, Plaintiff adds that Defendants used a
blanket confidentiality designation for all 3,375 pages of their production, and
requests that the Court “order defendants to go through the discovery marked

Docket 99-1. The Court only refers to aspects of the email made public by Defendants’ filing at
Docket 104.
46

47

Docket 102-1; Docket 104 at 3.

48

Docket 102-1.

49

Docket 100 at 2.

50

Docket 100 at 2–3.

51

Docket 100 at 3.

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confidential and either remove the confidential designation or provide in writing a
legitimate basis for the claim of confidentiality.”52
Defendants oppose Plaintiff’s motion to unseal Exhibit 1, maintaining that
the email chain contains personal patient health information and identifies by name
employees who complained about Plaintiff’s conduct.53 Defendants emphasize
that the email chain includes “specific instances in which [Plaintiff] failed to work
collaboratively with her co-workers, at times to the detriment of patient care” and
“includes complaints and areas of concern regarding Plaintiff’s procedural patient
care practices, with specific reference to the treatment being provided to
patients.”54 Defendants explain that they designated the email chain confidential
because the substance constitutes “medical records and information relating to
person [sic] who are not parties to this case” and “other personnel or business
information that could unnecessary [sic] expose one or more of the defendants to
liability if disseminated to the public and/or that parties believe one or more of them
may have an obligation to protect as private information,” which are both
categories of information covered by the Protective Order.55 Defendants contend
that unsealing Exhibit 1 would cause harm to third-parties, and Defendants,

52

Docket 100 at 3.

53

Docket 104 at 2.

54

Docket 104 at 3.

55

Docket 104 at 3–4 (quoting Protective Order at Docket 33) (alterations in Defendants’ brief).

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because (1) it would constitute disclosure of personal or sensitive medical
information, (2) it would run counter to Defendants’ public policies to protect
internal complaints, and (3) it could subject Defendants to future litigation because
the email includes concerns about Plaintiff’s procedural care practices.56
Defendants point to the Providence Code of Conduct, which requires employees
to report any concerning activity, and which promises to maintain confidentiality to
the extent possible.57 Defendants argue that it is in the “private and public interest”
to maintain confidentiality of complainants because the public trusts Providence
with their care and benefits from reports of concerning work conduct.58
Plaintiff disputes that Exhibit 1 is a medical record, emphasizing that there
is no patient information in the email chain.59 Plaintiff also challenges Defendants’
contention that employees who made reports would be harmed by the disclosure
as Plaintiff is not in a position to retaliate against anyone.60 Finally, Plaintiff
contends that Defendants’ concerns about exposure to other litigation are
unfounded as the statute of limitations has already passed and, in any event, any
claims would be baseless as Plaintiff did nothing wrong.61 Plaintiff concludes that

56

Docket 104 at 5–6, 8–9.

57

Docket 104 at 8.

58

Docket 104 at 8.

59

Docket 108 at 1.

60

Docket 108 at 1–2.

61

Docket 108 at 2.

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there is “no expectation of privacy or privilege that governs this document” and that
it is “evidence that should not be hidden.”62
Courts have historically recognized a “general right to inspect and copy
public records and documents, including judicial records and documents.” 63
However, courts “treat judicial records attached to dispositive motions differently
from records attached to non-dispositive motions.”64 The Ninth Circuit has “‘carved
out an exception to the presumption of access,’ for a ‘sealed discovery document
[attached] to a non-dispositive motion,’ such that ‘the usual presumption of the
public’s right of access is rebutted.’”65 “The public policies that support the right of
access to dispositive motions, and related materials, do not apply with equal force
to non-dispositive materials.”66

Indeed, “[t]he application of a strong presumption

of access to sealed records, not directly relevant to the merits of the case, would
eviscerate the ‘broad power of the district court to fashion protective orders.’ Thus,
a ‘particularized showing,’ under the ‘good cause’ standard of Rule 26(c) will

62

Docket 108 at 5.

Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v.
Warner Communs., Inc., 435 U.S. 589, 597 n.7 (1978)).
63

64

Id. at 1180.

Id. at 1179 (quoting Phillips v. General Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002)
(internal citations omitted) (emphasis and alterations in original).
65

66

Kamakana, 447 F.3d at 1179.

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‘suffice[] to warrant preserving the secrecy of sealed discovery material attached
to nondispositive motion,’” such as Exhibit 1.67
The Court finds that Defendants have made the requisite showing of good
cause to keep Exhibit 1 under seal. Specifically, while the Court agrees with
Plaintiff that Exhibit 1 does not contain actual medical records, it finds that the
email chain contains detailed descriptions of alleged incidents involving patients,
including specific patient treatments by Plaintiff.68 Disclosure of this sensitive
information to the public could harm not only those patients being discussed in the
email, but all patients at Providence, by raising concerns about the confidentiality
of their care. These concerns outweigh the public and private interests in having
access to this document.69
Finally, the Court will not order Defendants to undergo a wholesale revision
of their confidentiality designations, as Plaintiff requests. The Protective Order

Id. at 1180. See also Phillips v. General Motors, Co., 307 F.3d 1206, 1211 (9th Cir. 2002) (The
“party seeking protection bears the burden of showing specific prejudice or harm will result if no
protective order is granted . . . If a court finds particularized harm will result from disclosure of
information to the public, then it balances the public and private interests to decide whether a
protective order is necessary.”).
67

68

Docket 102-1 at 3–4.

The Court has considered whether redaction would be sufficient to protect the material, and
finds that it is not. See Father M. v. Various Tort Claimants, 661 F.3d 417, 425 (9th Cir. 2011)
(“[E]ven when the factors in this two-part test weigh in favor of protecting the discovery material .
. . a court must still consider whether redacting portions of the discovery material will nevertheless
allow disclosure.”).
69

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provides a mechanism for challenging confidentiality designations as needed,
which includes a provision for judicial intervention if necessary.70
CONCLUSION
In light of the foregoing, Plaintiff’s Motion to Permit Second Amendment of
Complaint After Expiration of Deadline to Amend at Docket 99 is DENIED,
Plaintiff’s Motion For Filing Document Under Seal at Docket 102 is GRANTED, and
Plaintiff’s Motion to Challenge Confidentiality and Notice of Filing Document Under
Seal at Docket 100 is DENIED. The Court will not grant attorney’s fees to either
party with respect to these motions.
DATED this 10th day of January, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

70

Docket 33 at 6.

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