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Mason v. Intercoast Career Institute

United States District Court, D. Maine

January 19, 2017




         After concluding that the Defendant, which ran a nursing school, was not a state actor, the Court grants the Defendant's motion for summary judgment as to the counts based on 42 U.S.C. § 1983, denies the Defendant's motion to strike as being in violation of the District's local rules, and retains the remaining breach of contract count for trial under its diversity jurisdiction pursuant to 28 U.S.C. § 1332.


         On September 23, 2014, Courtney Mason filed a complaint in this Court against InterCoast Career Institute (InterCoast), containing five counts: (1) retaliation under the Maine Whistleblowers' Protection Act, (2) breach of contract, (3) retaliation under the False Claims Act, (4) First Amendment retaliation, and (5) Due Process retaliation. Pl.'s Compl. for Breach of Contract, Retaliation, and Violation of Due Process (ECF No. 1) (Compl.). On March 4, 2015, the Court granted in part and denied in part InterCoast's motion to dismiss, dismissing Count I (the Maine Whistleblowers' Protection Act count) and Count III (the False Claims Act retaliation count), but denying the motion as to the remaining counts. Order on Def.'s Mot. to Dismiss and Mot. for More Definite Statement (ECF No. 13).

         After the completion of discovery, the Court held a Local Rule 56(h) pre-filing conference on May 27, 2016. Min. Entry (ECF No. 57). On October 18, 2016, InterCoast filed a motion for summary judgment and a statement of undisputed material facts. Def. Intercoast Career Inst.'s Mot. for Summ. J. (ECF No. 71) (Def.'s Mot.); Def.'s Statement of Undisputed Material Facts in Supp. of Def.'s Mot. for Summ. J. (ECF No. 72) (DSMF). On November 16, 2016, Ms. Mason filed a memorandum of law in opposition to InterCoast's motion for summary judgment, a responsive statement of material facts, and an additional set of material facts. Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. (ECF No. 73) (Pl.'s Opp'n); Pl.'s Opp'n to Def.'s Statement of Undisputed Material Facts (ECF No. 74) (PRDSMF); Pl.'s Statement of Material Facts (ECF No. 75) (PSAMF). On December 2, 2016, InterCoast filed a reply memorandum and a reply statement of facts. Def.'s Reply Mem. of Law in Supp. of Mot. for Summ. J. (ECF No. 79) (Def.'s Reply); Def.'s Objs. and Resps. to Pl.'s Statement of Material Facts Contained in Pl.'s Opp'n to Mot. for Summ. J. (ECF No. 80) (DRPSAMF). On December 2, 2016, InterCoast also filed a motion to strike certain portions of Plaintiff's evidence. Def.'s Objs. To Pl.'s Evid. Contained in Pl.'s Opp'n to Mot. for Summ. J. (ECF No. 81) (Def.'s Strike Mot.). On December 16, 2016, the Plaintiff responded to Defendant's motion to strike. Pl.'s Opp'n to Def.'s Obj. to Pl.'s Opp'n to Mot. for Summ. J. (ECF No. 83) (Pl.'s Strike Opp'n).


         A. Courtney Mason and InterCoast

         InterCoast is a private closely-held California corporation that previously operated a private for-profit Vocational Nursing School in Kittery, Maine from approximately December 2010 to May 2015. DSMF ¶ 1; PRDSMF ¶ 1. Courtney Mason was a student at InterCoast at its Kittery, Maine location. PSAMF ¶ 75; DRPSAMF ¶ 75. Courtney Mason attended the Kittery Nursing School from October 29, 2012, when her participation in the Vocational Nursing Program commenced, to November 27, 2013, when she was terminated from the Vocational Nursing Program. DSMF ¶ 2; PRDSMF ¶ 2. Ms. Mason began taking classes in October 2012 with about forty other students. PSAMF ¶ 76; DRPSAMF ¶ 76.

         InterCoast's Kittery Nursing School had a disciplinary policy that was contained in the Student Handbook. DSMF ¶ 11; PRDSMF ¶ 11. Under the Student Handbook, a student has the right to appeal the School's discipline to a Disciplinary Committee composed of employees of the Kittery Nursing School and/or InterCoast. DSMF ¶ 12; PRDSMF ¶ 12. No governmental officials, including agents or employees of the Maine State Board of Nursing (BON), are members of the Disciplinary Committee and none participated in or presided over such appeals. DSMF ¶ 13; PRDSMF ¶ 13.

         B. The Maine Board of Nursing's Regulation of Nursing Programs and Nursing Students

         On March 18, 1915, the Maine Legislature, through the power invested in it by the people of the state of Maine, voted approval of an “act to create a Board of Examination and Registration of Nurses”; this was known as Chapter 139, public laws of 1915, and thus began what is today known as the BON. PSAMF ¶ 1; DRPSAMF ¶ 1.[1] Many of the functions required of that first Board continue today, in modified form, as does the basic philosophy expressed over fifty years ago that minimum requirements for schools and nursing were necessary in order to ensure the eligibility of their graduates for licensure in Maine and other states. PSAMF ¶ 2; DRPSAMF ¶ 2.[2] To quote from the original document, “this is just to the pupil and a protection to the public.” Id. The current authorization for the BON is found in Title 32, Maine Revised Statutes, Chapter 31, as amended in 1983. Id.

         The standards for Education Programs for Nursing are set forth in Chapter 7 of the Department of Professional and Financial Regulation for BON. PSAMF ¶ 3; DRPSAMF ¶ 3. The Standards require an institute seeking to have a nursing program to first receive Initial Approval from the BON. PSAMF ¶ 4; DRPSAMF ¶ 4. The Standards require that after Initial Approval has been granted, the institute must appoint a qualified nurse administrator. PSAMF ¶ 5; DRPSAMF ¶ 5. The Standards require that at least four months prior to the date for admission of students, the nurse administrator must provide the BON with a report on the proposed program. PSAMF ¶ 6; DRPSAMF ¶ 6. The BON will then conduct a site visit to the institute which, along with the report from the nursing administrator, shall constitute the basis for the BON to grant initial approval. PSAMF ¶ 7; DRPSAMF ¶ 7. Initial approval will be for a period established by the BON of not less than two years and if the institute meets the standards established by the BON, then Continuing Approval shall be granted as required by 32 M.R.S. § 2153(4). PSAMF ¶ 8; DRPSAMF ¶ 8.

         The institute must provide the BON with any anticipated change in ownership, patent of organization, or curriculum of the nursing program from a review and action in order to ensure the continuing approval of a program. PSAMF ¶ 9; DRPSAMF ¶ 9. The BON may withdraw its approval of a nursing program pursuant to 32 M.R.S. § 2153(6) if the BON determines that said program is not maintaining the required standards. PSAMF ¶ 10; DRPSAMF ¶ 10.

         The Standards set out the requirements for the Administration of the nursing institute. PSAMF ¶ 11; DRPSAMF ¶ 11. Specifically, the Standards set out (1) the minimum requirements for qualifications of the nurse administrator of the program, PSAMF ¶ 12; DRPSAMF ¶ 12, (2) the responsibilities for the nurse administrator of the nursing program, PSAMF ¶ 13; DRPSAMF ¶ 13, (3) the minimum requirements for the faculty of nursing, PSAMF ¶ 14; DRPSAMF ¶ 14, (4) the requirements for the personnel policies of the nursing program, PSAMF ¶ 15; DRPSAMF ¶ 15, (5) the acceptable teaching load, faculty responsibilities, and faculty to student ratio, PSAMF ¶ 16; DRPSAMF ¶ 16, (6) the requirements for admission of students, PSAMF ¶ 17; DRPSAMF ¶ 17, (7) the requirement that qualified applicants be admitted without regard to race, creed, ethnic origin, marital status, sex or age, PSAMF ¶ 18; DRPSAMF ¶ 18, (8) the requirement that students' rights, responsibilities and opportunities shall be available in written form and shall include student involvement in determining academic policies and procedures, curriculum planning, and evaluation of teaching effectiveness, PSAMF ¶ 19; DRPSAMF ¶ 19, (9) the requirement that policies and procedures pertaining to dismissal and withdrawal must be clearly stated and adequately safeguard the rights of both the student and the educational program and nursing, PSAMF ¶ 20; DRPSAMF ¶ 20, (10) requirements for the curriculum of the nursing program, PSAMF ¶ 21; DRPSAMF ¶ 21, (11) requirements concerning the resource facilities and services in the local community to be used as clinical sites, PSAMF ¶ 22; DRPSAMF ¶ 22, and (12) requirements for records, reports and bulletins to be maintained by the nursing institute. PSAMF ¶ 23; DRPSAMF ¶ 23.

         C. The Maine Board of Nursing's Regulation of InterCoast's Nursing Program

         In September 2007, the BON granted InterCoast permission to initiate an educational program in nursing. PSAMF ¶ 24; DRPSAMF ¶ 24. On November 2, 2007, Kelly Michaud, InterCoast's Executive Director, emailed Myra Broadway, the Executive Director of the Maine BON, inquiring whether the qualifications of prospective candidates for InterCoast's Director of the Nursing Program met BON qualifications, writing “can you offer some guidance on this? Would it make sense to consider them and then ask for final approval of the acceptance from the BON?” PSAMF ¶ 25; DRPSAMF ¶ 25.[3]

         On December 13, 2007, members of the BON made an unannounced inspection of InterCoast's South Portland campus. PSAMF ¶ 26; DRPSAMF ¶ 26. Ms. Broadway wrote a letter to Mary J. Edwards, the Interim Director of InterCoast's nursing program, summarizing the unannounced inspection. PSAMF ¶ 27; DRPSAMF ¶ 27. In the letter, Ms. Broadway wrote that the “unannounced visit was precipitated by the major and abrupt resignation of the Nursing Administrator of the Practical Nursing Program and by numerous concerns from current students and the public regarding information given to them by program representatives.” Id. Ms. Broadway detailed several criticisms of the program. PSAMF ¶ 28; DRPSAMF ¶ 28. Ms. Broadway noted that InterCoast planned to admit four classes of sixty students per year, yet “the admission plan to admit four classes a year was never presented to the BON by the previous Nursing Director or the Campus Director.” Id. Ms. Broadway also wrote that InterCoast had failed to hire faculty with academic experience as required by BON standards. PSAMF ¶ 29; DRPSAMF ¶ 29. Ms. Broadway made it clear that the BON required that before the admission of more classes, a clear and detailed plan for hiring faculty and arranging for clinical practice sites should be developed and submitted to the BON. PSAMF ¶ 30; DRPSAMF ¶ 30. Ms. Broadway wrote that “the rules of the Maine State Board of Nursing are very clear about faculty developing the curriculum” and that during inspection, although “the two faculty members we had the opportunity to converse with were truly dedicated and committed to the success of the students, neither could articulate the philosophy of practical nursing education, nor had they had any formal academic experience.” PSAMF ¶ 31; DRPSAMF ¶ 31. Ms. Broadway stated that “it was made clear during the visit that there are no formal faculty meetings scheduled.” PSAMF ¶ 32; DRPSAMF ¶ 32. Ms. Broadway said that “when we asked to see the course evaluations the students recently completed, we were informed that no evaluations have been done.” PSAMF ¶ 33; DRPSAMF ¶ 33. Ms. Broadway noted that “there seems to be a great deal of confusion regarding the purpose of this practical nursing program. Nursing programs must be informed that the intent of the program as presented to the BON is to prepare students to be practical nurses. This program does not prepare them to automatically qualify for a registered nursing program in Maine. The BON has already directed [InterCoast] that this fact must be clearly stated in writing.” PSAMF ¶ 34; DRPSAMF ¶ 34. Ms. Broadway warned InterCoast that it must hire a full time nursing program administrator no later than February 1, 2008. PSAMF ¶ 35; DRPSAMF ¶ 35. Ms. Broadway also stated that “when hiring the nursing administrator and faculty, the standards provided in Chapter 7 Standards for Educational Programs in Nursing MUST be met.” PSAMF ¶ 36 (emphasis in Broadway letter); DRPSAMF ¶ 36. Ms. Broadway closed by warning that “if all the above requirements are not met by March 3, 2008, my recommendation to the BON will be to close the program.” PSAMF ¶ 37; DRPSAMF ¶ 37.

         On August 18, 2008, Ms. Broadway and other members of the BON made another on-site inspection at InterCoast. PSAMF ¶ 38; DRPSAMF ¶ 38. Ms. Broadway wrote a letter summarizing the inspection and noted that InterCoast had responded to the direction of the BON. PSAMF ¶ 39; DRPSAMF ¶ 39. Ms. Broadway also wrote that as a result of one of the concerns from the inspection, the BON directed board member Susan Baltrus to go to the River Ridge elderly care facility to view InterCoast students in a clinical setting. PSAMF ¶ 40; DRPSAMF ¶ 40. In her letter, Ms. Broadway quoted from Ms. Baltrus' report of that visit, noting that “on arrival, I was shown to the clinical area that was a clinical site for one group of students. Some students were chewing gum and one student was wearing white shorts above the knee.” PSAMF ¶ 41; DRPSAMF ¶ 41. Ms. Baltrus also noted other issues, including the distribution of medication. Id. In summary, Ms. Broadway concluded by stating that although the Baltrus report “raises some concerns, the overall information gathered during the visit demonstrates the new program is consistent with core rules of practical nursing programs. The BON will look forward to an update from Director Brodie regarding the mentoring and evaluation of the faculty.” PSAMF ¶ 42; DRPSAMF ¶ 42.

         On March 31, 2009, Ms. Broadway wrote an email to BON members noting that in the first class “of [InterCoast] graduates (November 2008) seven passed the NCLEX-PN and seven failed. This program is only on a temporary/provisional approval - and may be worth a telephone conference call among us to determine what should be the next step.” PSAMF ¶ 43; DRPSAMF ¶ 43.

         On May 15, 2009, Ms. Baltrus made a site visit to view InterCoast students at the Pine Point Center and wrote that she met with the Manager of the Long Term Care Unit who cited many concerns with the students, including arriving late, leaving early, instructors and students not having a list of skills to perform, and the high turnover with faculty. PSAMF ¶ 44; DRPSAMF ¶ 44. Ms. Baltrus met with students, who had many complaints, including no “real world” experience, policies regarding academic probation not consistently followed, and the lack of hours for lecture and theory. PSAMF ¶ 45; DRPSAMF ¶ 45. On June 4, 2009, the BON reviewed InterCoast's request for full approval of the practical nursing program and denied the request based in part on the clinical site reports by Ms. Baltrus. PSAMF ¶ 46; DRPSAMF ¶ 46.

         In a letter dated October 12, 2010, the BON granted full approval for InterCoast's Practical Nursing Program. PSAMF ¶ 47; DRPSAMF ¶ 47. The BON approval was effective December 1, 2010. DSMF ¶ 3; PRDSMF ¶ 3.[4] In order to obtain such approval, InterCoast was required to provide certain documents to the BON, including its proposed educational program and curriculum. DSMF ¶ 4; PRDSMF ¶ 4. Without a license to operate the Kittery Nursing School, students would not be able to sit for the examination to become a licensed practical nurse. DSMF ¶ 5; PRDSMF ¶ 5.[5] The BON had the authority to modify, suspend, or terminate its approval. DSMF ¶ 6; PRDSMF ¶ 6.

         The BON had the authority to receive and investigate complaints from students regarding the conduct of the Kittery Nursing School and to impose discipline upon the Kittery Nursing School after an administrative process and review in response to such complaints and for other reasons. DSMF ¶ 7; PRDSMF ¶ 7. At no time did any employee or agent of the BON directly participate in the management, operations, discipline, or other activities of the Kittery Nursing School. DSMF ¶ 8; PRDSMF ¶ 8.[6]

         On July 20, 2012, the BON received two anonymous complaints regarding InterCoast, each alleging issues with its practical nursing program, and on July 30, 2012, the BON sent copies of the complaints to Doreen Hunt, RN, Interim Director for InterCoast, and requested a written response. PSAMF ¶ 48; DRPSAMF ¶ 48. In response to the complaints, on July 9 through July 27, 2012, Ms. Baltrus and other BON staff conducted telephonic interviews of staff at the clinical sites affiliated with InterCoast's practical nursing program. PSAMF ¶ 49; DRPSAMF ¶ 49. In general, the interviews revealed that all clinical sites affiliated with InterCoast reported minimal paperwork (no syllabi or possibly one that was outdated), few contracts, rarely a skills checklist, and sometimes students and faculty just showing up for a new rotation without prior notice. PSAMF ¶ 50; DRPSAMF ¶ 50. On August 10, 2012, the BON received a written response from InterCoast Interim Director Doreen Hunt to the two anonymous complaints denying any issues with its practical nursing program. PSAMF ¶ 51; DRPSAMF ¶ 51.

         On August 12, 2012, the BON received a letter from Cynthia Brodie, Corporate Director of Nursing Education for InterCoast, notifying the BON that Cynthia Lamontagne had been appointed as the Nursing Program Director at InterCoast based in Kittery, Maine. PSAMF ¶ 52; DRPSAMF ¶ 52. On August 22, 2012, Ms. Broadway sent Ms. Lamontagne a letter, informing her of information uncovered during an investigation regarding unacceptable behavior by students. PSAMF ¶ 53; DRPSAMF ¶ 53. Students were in the lounge watching television and doing crossword puzzles. PSAMF ¶ 54; DRPSAMF ¶ 54. The instructors thought the students were immature and unprofessional and that the students would not accept responsibility for their actions, causing Instructor A to give all the students a zero for the day, emailing the grades to InterCoast administration. PSAMF ¶ 55; DRPSAMF ¶ 55. In response, all the students left early and met with the Director of Nursing at InterCoast about the zero grades issued by Instructor A. PSAMF ¶ 56; DRPSAMF ¶ 56. Instructor A was not invited to or present at the meeting, and when Instructor A asked the Director of Nursing what happened, the Director of Nursing stated that it was her role to “hear both sides.” PSAMF ¶ 57; DRPSAMF ¶ 57. After this meeting, there was an InterCoast staff meeting at which Instructor A was not present because she had not been made aware of it. PSAMF ¶ 58; DRPSAMF ¶ 58. Instructor A said that nothing would happen to the students to whom she issued zero grades when they pay $35, 000 a year to attend InterCoast's LPN program. PSAMF ¶ 59; DRPSAMF ¶ 59. Several students have been making negative comments about Instructor A on the internet. PSAMF ¶ 60; DRPSAMF ¶ 60. After Instructor As discussion of this matter with the Executive Director of the BON, she called and spoke with Cynthia Brodie, Corporate Director of Nursing Education for InterCoast, and emailed the student evaluations and grades to her. PSAMF ¶ 61; DRPSAMF ¶ 61. InterCoast made several position changes while Instructor A worked for it, but InterCoast never communicated those changes to the Instructors and Instructor A had to ask more than once to whom she was supposed to report when the changes occurred. PSAMF ¶ 62; DRPSAMF ¶ 62. In response to the findings of the investigation, Ms. Brodie sent the BON a letter dated August 29, 2012 and wrote that the “concerns expressed by our clinical affiliates are justifiable and can be explained but not excused; they will be addressed by administration.” PSAMF ¶ 63; DRPSAMF ¶ 63.

         On September 18, 2012, the BON met with Cynthia Brodie and Kelly Michaud, InterCoast's Executive Director, regarding the pending issues and after this meeting, the BON voted to offer InterCoast a Consent Agreement to place InterCoast's LPN education program on “probationary” status in accordance with 32 M.R.S. § 2153-A(6). PSAMF ¶ 64; DRPSAMF ¶ 64. After the September 18, 2012 BON meeting, the BON's assigned legal counsel and InterCoast's legal counsel negotiated a Consent Agreement to resolve the pending matter without further proceedings. PSAMF ¶ 65; DRPSAMF ¶ 65. The Consent Agreement took effect on March 23, 2013. PSAMF ¶ 66; DRPSAMF ¶ 66.

         In the Consent Agreement, InterCoast acknowledged that the BON had the discretion to place its LPN educational program on probationary status given the issues involved the oversight of faculty and students, the relationship between InterCoast and the clinical sites, and an apparent lack of structure or enforcement of structure. PSAMF ¶ 67; DRPSAMF ¶ 67. In the Consent Agreement, InterCoast admitted that it had violated subsections of BON rules in Chapter 7. PSAMF ¶ 68; DRPSAMF ¶ 68. As part of the Consent Agreement, InterCoast agreed to obtain “candidacy” status by the National League for Nursing Accrediting Commission (NLNAC) within twelve months following the execution of the Consent Agreement, to obtain accreditation of its LPN program by the NLNAC within eighteen months of achieving candidacy status, and after achieving accreditation, to maintain accreditation of the LPN program by the NLNAC. PSAMF ¶ 69; DRPSAMF ¶ 69.

         InterCoast also agreed to provide the BON with (1) the pass rates of each LPN class; (2) written quarterly reports detailing the progress it was making toward acquiring candidacy status and accreditation by the NLNAC, (3) the credentials and the date of hire for all faculty, and (4) an organizational chart depicting the current relationships of authority and responsibility and channels of communication. PSAMF ¶ 70; DRPSAMF ¶ 70. In accordance with 32 M.R.S. §§ 2104 and 2153-A, InterCoast agreed to (1) submit its LPN programs to random site inspections by the BON or its agents, (2) cooperate with the BON or its agents during any random site inspections of its LPN programs, and (3) permit its faculty and students to be interviewed by the BON or its agents during any random site inspection and/or investigation of its LPN programs. PSAMF ¶ 71; DRPSAMF ¶ 71.

         On August 13, 2014, the BON and InterCoast entered into a Supplemental Consent Agreement because InterCoast had not fully complied with the original Consent Agreement. PSAMF ¶ 72; DRPSAMF ¶ 72. On September 11, 2015, InterCoast notified the Maine Attorney General that it would be voluntarily discontinuing its nursing program. PSAMF ¶ 73; DRPSAMF ¶ 73. On September 17, 2015, the BON and InterCoast entered into a second amendment to the Consent Agreement in which InterCoast would discontinue its nursing program and voluntarily surrender its Certificate of Approval effective March 31, 2016. PSAMF ¶ 74; DRPSAMF ¶ 74.

         D. Governmental Involvement in InterCoast

         Any student at the Kittery Nursing School interested in applying for financial aid could fill out the Free Application for Federal Student Aid and submit it to the United States Department of Education. DSMF ¶ 17; PRDSMF ¶ 17. This Financial Aid Application could be completed “online” at the Federal Student Aid Website. DSMF ¶ 18; PRDSMF ¶ 18. Based on various criteria, including income, the student might be awarded a Pell Grant (at the time up to approximately $5, 775.00), an SEOG grant (typically approximately $300 per award year), a subsidized direct student loan (subsidized by the Federal Government), an unsubsidized direct student loan, and/or a Parent Plus loan for dependent students. DSMF ¶ 19; PRDSMF ¶ 19.

         Neither InterCoast nor the Kittery Nursing School ever independently applied for or received federal or state student aid at any time. DSMF ¶ 21; PRDSMF ¶ 21.[7]The funds received through the student's application do/did not comprise subsidies or direct funding from any government agency but were legitimate grants and loans created by the student and for the benefit of the student. DSMF ¶ 22; PRDSMF ¶ 22.

         Neither InterCoast nor the Kittery Nursing School ever employed any governmental employees, whether local, state or federal. DSMF ¶ 23; PRDSMF ¶ 23.[8] The Kittery Nursing School was not the only vocational nursing school or program at the time that Courtney Mason could have pursued; there were multiple other local public and private nursing schools that Ms. Mason could have applied to, including without limitation, the Central Maine Community College, and in New Hampshire, The Salter School of Nursing and Harmony Health Care. DSMF ¶ 24; PRDSMF ¶ 24.[9] The state of Maine did not contract with InterCoast or the Kittery Nursing School to provide vocational nursing school training. DSMF ¶ 25; PRDSMF ¶ 25.[10] InterCoast and the Kittery Nursing School were, at all times, run by Geeta Brown as the President, and there has never been any person working for or employed by any state or federal government who participated in the corporate governance, management or control of the corporation or of the Kittery Nursing School. DSMF ¶ 26; PRDSMF ¶ 26.[11]

         E. The BON's Involvement with Courtney Mason

         InterCoast failed to provide Courtney Mason with the education, training or facilities that it had advertised and that were required by the BON. PSAMF ¶ 77; DRPSAMF ¶ 77.[12] Accordingly, Ms. Mason complained about the conditions to the President and Director of Nursing, but InterCoast ignored her complaints. PSAMF ¶ 78; DRPSAMF ¶ 78.[13] On November 23, 2013, Ms. Mason contacted the BON to complain about InterCoast. PSAMF ¶ 79; DRPSAMF ¶ 79.[14] On November 26, 2013, Andrea Gauntlet, the Director of Nursing at InterCoast, called Ms. Mason into her office to discuss her letter to the BON. PSAMF ¶ 80; DRPSAMF ¶ 80.[15] On November 27, 2013, InterCoast expelled Ms. Mason.[16], [17]

         By letter dated December 31, 2013, the BON notified InterCoast of Ms. Mason's complaint and requested a response from InterCoast no later than February 1, 2014. PSAMF ¶ 82; DRPSAMF ¶ 82. In BON's December 31, 2013 letter, it requested that InterCoast supply it with (1) a copy of all investigations into complaints by students conducted by InterCoast staff of alleged cheating by other students on InterCoast examinations from January 1, 2012 to the then present; (2) the identity of all InterCoast staff members, employees or agents who conducted investigations into any allegations of cheating by students from January 1, 2012 to the then present; (3) the identity of all InterCoast students who have alleged cheating by students on InterCoast examinations from January 1, 2012 to the then present; (4) the criteria for admission to the nursing program; (5) copies of screening tools used to screen candidates; and (6) the screening process used before or after admission to identify remedial academic needs for students. PSAMF ¶ 83; DRPSAMF ¶ 83.

         In January 2014, InterCoast offered to allow Ms. Mason to return to school on February 4th if:

Mason will immediately notify the Maine Board of Nursing that School has satisfied any and all concerns contained in her complaint to the Maine Board of Nursing, and she will request in writing (via email to Myra Broadway) the withdrawal of her complaint no later than January 31, 2014 at 1:00 pm. Student has granted authorization to the School to inform the Maine Board of Nursing of her desire to withdraw her complaint. She states her issues to the Board are all resolved. Student acknowledges that her agreement to notify the Maine Board of Nursing of her withdrawal of her complaint is strictly voluntary and not the result of coercion, duress, or undue influence.

PSAMF ¶ 84 (underline in original document); DRPSAMF ¶ 84.[18] Ms. Mason rejected InterCoast's offer because she considered the offer further retaliation from InterCoast and it required her to admit that she was terminated for cause and not retaliation. PSAMF ¶ 85; DRPSAMF ¶ 85.[19]

         On September 23, 2014, Ms. Mason filed the pending lawsuit. PSAMF ¶ 86; DRPSAMF ¶ 86. InterCoast has a policy that states: “InterCoast Colleges/InterCoast Career Institute-students, faculty, staff, and administrators-has as its goal to create and sustain an anti-discriminatory environment and will not tolerate discrimination of any kind.” PSAMF ¶ 87; DRPSAMF ¶ 87. InterCoast also has a policy that reads: “No employee or student shall be subjected to discharge, suspension, discipline, harassment, or any form of ...

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