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Murray v. Kindred Nursing Centers West LLC

United States District Court, District of Maine

September 8, 2014


Denise Murray Plaintiff Represented by Guy D. Loranger Law Office of Guy D. Loranger

Kindred Nursing Centers West LLC Defendant Represented by James R. Erwin Pierce Atwood LLP Merrill’s Wharf Michelle Y. Bush Pierce Atwood LLP Merrill’s Wharf


Jon D. Levy United States District Judge

This matter is before the court on Kindred Nursing Centers West, LLC’s motion for summary judgment pursuant to Fed.R.Civ.P. 56.


Kindred operates a short- and long-term rehabilitation therapy and restorative care center in Kennebunk. ECF No. 23 at 1. Denise Murray is a Licensed Practical Nurse who was hired by Kindred in March 2011. Id. Murray’s employment was terminated a year later in March 2012, following an investigation by Dawn Guptill, Kindred’s Director of Nursing, in which Guptill concluded that Murray may have diverted narcotic medicines in violation of Kindred’s policies. Id. at 6, ¶ 36.

Kindred reported the suspected drug diversion to the Maine Department of Health and Human Services (DHHS) as required by law. Id., ¶ 40. In January 2013, Murray entered into a consent agreement with the Maine Board of Nursing by which she acknowledged having committed “unprofessional conduct” based on “illegible and substandard documentation, particularly concerning narcotic administration.” DHHS’s investigation substantiated Kindred’s allegation of missing narcotics, but DHHS concluded that the records “could not prove it was the result of one person and medication errors continued after Ms. Murray’s termination.” ECF No. 21-1 at 64-66. Accordingly, the consent agreement did not find, and Murray did not admit, that she had diverted residents’ medications as Kindred had suspected.

While admitting to having made documentation errors, Murray contends that the real reason her employment ended was in retaliation for reports she had made to Guptill of her suspicions that another nurse (hereinafter, “Nurse D”) was under the influence of drugs while at work. ECF No. 31 at 16. Murray asserts that Guptill took no action in response to the reports. Id. at 3-4. By her amended complaint, Murray alleges that she was unlawfully discriminated against by Kindred in violation of the Maine Whistleblower Protection Act, 26 M.R.S. § 833 (2013), in retaliation for her having reported conditions that negatively impacted the care of the facility’s residents. ECF No. 1 at 2-3.

Kindred’s motion for summary judgment has two prongs. First, Kindred contends that Murray is judicially estopped from pursuing her whistleblower retaliation claim because she failed to amend her bankruptcy schedules to disclose the existence of the claim in her Chapter 13 bankruptcy case which was initiated in May 2009 and remains pending. ECF No. 22 at 5-12. Second, Kindred argues that summary judgment is appropriate on Murray’s retaliation claim because she cannot demonstrate a causal connection between her alleged protected activity—her reports to Guptill regarding Nurse D—and her termination, either at the prima facie stage or to establish that Kindred’s stated reason for her termination was pretextual. Id. at 12-18.


I proceed by (A) considering the applicable summary judgment standards, and then turning to (B) the applicability of judicial estoppel, and (C) whether Kindred is entitled to summary judgment on the merits of Murray’s whistleblower retaliation claim.


1. Federal Rule of Civil Procedure 56

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). “A dispute is genuine if ‘the evidence about the fact is such that a reasonable jury could resolve the point in favor of the non-moving party.’” Johnson v. University of Puerto Rico, 714 F.3d 48, 52 (1st Cir. 2013) (quoting Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008)). “A fact is material if it has the potential of determining the outcome of the litigation.” Id. (quoting Maymi v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008)).

The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether this burden is met, the court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Johnson, 714 F.3d at 52. Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Brooks v. AIG SunAmerica Life Assur. Co., 480 F.3d 579, 586 (1st Cir. 2007) (citing Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006)); Fed.R.Civ.P. 56(c). “As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party.” In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (citation and internal punctuation omitted).

2. Local Rule 56

The evidence that the court may consider in deciding whether genuine issues of material fact exist for purposes of summary judgment is circumscribed by the local rules of this district. See Loc. R. 56. The moving party must first file a statement of material facts that it claims are not in dispute. See Loc. R. 56(b). Each fact must be set forth in a numbered paragraph and supported by a specific record citation. See Id . The nonmoving party must then submit a responsive “separate, short, and concise” statement of material facts in which it must “admit, deny or qualify the facts by reference to each numbered paragraph of the moving party’s statement of material facts[.]” Loc. R. 56(c). The nonmovant likewise must support each denial or qualification with an appropriate record citation. See Id . The nonmoving party may also submit its own additional statement of material facts that it contends are not in dispute, each supported by a specific record citation. See Id . The movant then must respond to the nonmoving party’s statement of additional facts, if any, by way of a reply statement of material facts in which it must “admit, deny or qualify such additional facts by reference to the numbered paragraphs” of the nonmovant’s statement. See Loc. R. 56(d). Again, each denial or qualification must be supported by an appropriate record citation. See id.

Local Rule 56 directs that “[f]acts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted.” Loc. R. 56(f). In addition, “[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment” and has “no independent duty to search or consider any part of the record not specifically referenced in the parties’ separate statement of fact.” Id.; see also, e.g., Borges, ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010); Fed.R.Civ.P. 56(e)(2) (“If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion[.]”).


1. Procedural Background

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