Mills Justice, Superior Court.
trial was held on count I of plaintiff's amended
complaint, in which she alleges a violation of the Maine
Human Rights Act (Whistleblower). By order dated November 3,
2016, summary judgment was granted on count II of
plaintiff's amended complaint, defamation/libel. The
court has considered the evidence and arguments of counsel.
For the following reasons, judgment is entered in favor of
high school graduation, plaintiff obtained a certified
nurseing assistant license and a home health aide assistant
license. She then attended Becker College in Massachusetts,
obtained her license as a practical nurse, and has been a
registered nurse since 2000. From 1992 until 2000, she worked
at Harrington Hospital in Massachusetts as a licensed
practical nurse in the home care department. From 2000 to
2006, she worked at that hospital as a registered nurse in
the medical surgical unit. Her patients included
post-operative, dementia, and a variety of other patients.
She also has a license in hospice and palliative care.
(PL's Ex. 62 (excluding Bate 165).)
ten-month leave, she worked at Hospice of Southern Maine for
seven years as a case manager, and in quality assurance and
admissions. For fewer than six months, she next worked at
MedAssist/Beacon, which provides hospice services. In June
2014, she began work for defendant Scarborough Operations,
LLC d/b/a Pine Point (Pine Point), a nursing home owned by
defendant Genesis Healthcare, LLC (Genesis). She was hired as
a charge nurse. (Def.'s Ex. 16.) There are no duties in
the charge nurse job description that would be unknown to an
Trundy received a nursing degree in 1975 from Central Maine
General Hospital. In January 2012, she began working for
Genesis as Manager of Clinical Operations. She went to the
Genesis buildings assigned to her to review clinical
outcomes, which included listening to the morning report,
walking through the building, reviewing records, and speak to
the staff. She reported to the director of clinical
operations, Donna Babineau. Ms. Trundy stopped working full
time on October 2015. At the time of trial, she was working
for Genesis on a per diem basis, filling in for the person
who replaced her, who was on vacation.
Currier is a licensed multi-level nursing administrator and
has been employed in the long term care industry for twenty
seven years. At the time of trial she worked at Falmouth by
the Sea and Foreside Harbor. Previously she worked at Pine
Point from July 1999 to November 2015 as the nursing
Smith, the nurse practice educator at Genesis from 2009 until
she retired on June 30, 2016, was responsible for orientation
for new nurses. Tara Bucknell began working at Pine Point on
September 14, 2014 and was the nurse manager of the skilled
unit. At the time of trial, Ms. Bucknell worked as a nurse at
Spring Brook Center, a long term care facility owned by
Genesis, and Janet Gervais was the Center Nurse Executive at
Genesis, a position formerly known as Director of Nursing.
During the 2014 time period, Erine Grant was the nurse
manager of the long term care unit and Karen Farrington was
the director of human resources and scheduling, both at Pine
purpose of orientation is not to train on nursing skills.
Instead, orientation includes exposure of new employees to
practices, procedures, policies, and systems within Pine
Point and Genesis, including the computer program, Port
Client Care (PCC). (Def.'s Ex. 6.) Genesis's
practices, training, and competencies follow standard nursing
practice. Ms. Trundy was unaware of any written orientation
policy. Nurses at the facility were trained to do
employee must demonstrate an understanding of the orientation
topics through completion of competencies prepared by the
employee and the nurse mentor and given to Ms. Smith. A
tracking sheet is also kept for a new employee. (PL's Ex.
64.) Ms. Smith filled out the tracking sheet as she received
information. She requested plaintiff's competencies
multiple times. Plaintiff did not state she was unable to
complete the competencies because of problems with
orientation. As of September 2, 2014, plaintiff had not
turned in at least two thirds of the competencies she should
have turned in. She never turned in a complete set. In other
respects, however, she fulfilled all aspects of the
orientation. During the orientation, documents were generated
to show plaintiff had completed various elements of the
orientation. (Def.'s Exs. 5-11; PL's Ex. 64.)
Plaintiff completed corporate compliance training, which is
done annually. Plaintiff testified she had never seen the
tracking tool kept for her, did not know what was meant by
the various categories listed, and did not recall talking to
Ms. Smith about the items on the tool. (PL's Ex. 64.)
length of the orientation depends on the experience of a new
employee. For an experienced nurse, a four to six week period
of orientation is typical. Ms. Smith, Ms. Gervais, a nurse
mentor, and a new employee discussed the length of the
orientation. A thirty day and a sixty day evaluation are
conducted by Ms. Farrington with a new employee to evaluate a
new employee's performance. Plaintiff understood she
would have a review after thirty days to determine whether
there were concerns, issues, or questions and she would
receive feedback as to her progress.
Farrington and Ms. Smith were involved in the selection of
the nurse mentor for a new employee. The mentor did not
receive special training and did not serve in a supervisory
orientation, plaintiff was in a classroom with other
employees. Ms. Smith provided instruction. (PL's Ex. 4.)
Plaintiff learned she would be paired with a staff nurse,
Loretta Hynes, who was no longer employed at Pine Point at
the time of trial. At Genesis, the staff nurse or charge
nurse was the "desk nurse, " who sat at the desk
and obtained orders, made telephone calls, completed
treatment sheets, worked with the unit clerk, handled
admissions and documentation, and checked charts.
Point has two units: Roadside, which provides for short-term,
rehabilitating patients; and Marsh, which provides for
nursing home level patients. Plaintiff was assigned to the
Roadside unit. Plaintiff did not recall receiving training
from Ms. Smith. (PL's Ex. 5, PP230.) Plaintiff testified
that at their first meeting, Ms. Hynes said she did not have
time to train plaintiff on the staff nurse/desk position. As
time allowed, Ms. Hynes oriented plaintiff to the desk
position. For her first week, plaintiff testified she worked
on the floor as a certified nursing assistant (CNA) and
partly at the desk. Frequently management moved staff to
cover various needs.
testified she spoke to Ms. Hynes after the first week of
orientation and asked if the next week could be more
structured and oriented to the desk position. Ms. Hynes
referred plaintiff to Ms. Gervais to ask about having
additional staffing so Ms. Hynes could orient plaintiff.
Plaintiff alleged she was being counted as the second nurse.
The schedule reveals that second nurses were scheduled to
work with Ms. Hynes during the July orientation. (PL's
Ex. 5.) Plaintiff testified that Ms. Hynes stated she had
brought this issue to Ms. Gervais's attention previously,
had been criticized, and thought feedback from a new employee
might be more effective because Ms. Gervais's response
had been that Genesis is never short staffed.
plaintiff's second week of orientation, she testified she
continued to perform mostly CNA duties and dispersed
medicine, with some time spent with Ms. Hynes. At the end of
the second week of orientation, plaintiff testified she was
concerned because she was not shadowing Ms. Hynes and not
learning the Genesis protocols for how and why things were
complained about short staffing, as did Ms. Hynes. Nurses
refer to "short staffing" when someone on the
schedule "called out." Complaints about staffing
levels by staff occur daily at Pine Point and other
facilities. When a scheduled staff person called out, Genesis
replaced that member and sometimes a nurse manager, Ms.
Gervais, or Ms. Smith would remain at the facility to help.
Replacement on occasion came from other facilities and the
replacement person's skill level was generally known. The
needs of the patients were considered paramount. Genesis was
never staffed below the state minimum requirements and, in
fact, staffed above the state minimums.
recounted a meeting with Ms. Gervais in July 2014 to complain
that Pine Point was short staffed, which affected
plaintiff's orientation. Plaintiff did not allege Pine
Point was staffed illegally. Plaintiff alleged Ms. Gervais
pounded her fists on the table and told plaintiff that
Genesis did not have staffing shortage issues. Ms. Gervais
denied this allegation but did discuss time management with
plaintiff and told her improvement was needed.
had special concerns about the medication Pyxis machine and
the medication cart; plaintiff had not used a medication cart
previously. She made a medication error twice, giving a
patient two Vicodin pills as opposed to one pill during a
six-hour period. Dispensing medicine is taught in nursing
school. This error was reported to Ms. Hynes. Ms. Gervais
believed, notwithstanding, that plaintiff was on track to
complete her orientation successfully. Additional time for
orientation could have been provided.
to her testimony, when plaintiff discovered that a dressing
was dated the day before but was signed off as having been
done the day after, Ms. Hynes told plaintiff to take care of
the dressing. Plaintiff was also told to circle the square on
the form to indicate it was not done and to put her initials
next to that circle to document that plaintiff took care of
the dressing that day. Plaintiff agreed there was no
violation of any documentation standard with regard to this
on plaintiff's concerns about orientation expressed to
Ms. Gervais, a meeting was scheduled during the fourth week
of orientation. Plaintiff, Ms. Gervais, Ms. Hynes, Ms.
Currier, and Ms. Smith attended to discuss plaintiff's
concerns about orientation. Ms. Hynes and plaintiff expressed
concerns about each other and plaintiff complained she was
not allowed to do or learn the process and her job at
Genesis. Ms. Gervais directed Ms. Hynes to spend more time
orienting plaintiff to the desk position. Plaintiff also
complained that she was not allowed to do certain tasks. Ms.
Hynes explained that plaintiff was falling behind so Ms.
Hynes completed the tasks so plaintiff would not fail.
Plaintiff did not believe during her employment at Pine Point
that she put anyone in danger, did anything illegal, or
violated a standard of care and she did not tell anyone at
Pine Point that she did any of those things.
plaintiff's orientation ended, Ms. Farrington assigned
plaintiff to work a shift as charge nurse by herself. When
plaintiff learned she was assigned to provide orientation to
Emma Boucher, plaintiff complained to Ms. Farrington. Ms.
Boucher then complained to Ms. Currier about plaintiff's
practices. (PL's Ex. 9.) Plaintiff agreed at trial that
the nursing environment was not completely safe. She agreed
also that the keys to the medicine room and carts changed
hands too many times during a shift. Ms. Boucher's letter
to Ms. ...