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Pastulovic v. Scarborough Operations, LLC

Superior Court of Maine, Cumberland

April 18, 2017



          Nancy Mills Justice, Superior Court.

         Jury-waived 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 defendants.


         After 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).)

         After a 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 experienced nurse.

         Donna 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.

         Leslie 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 administrator.

         Gayle 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 Point.


         The 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 orientation.

         A new 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.)

         The 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.

         Ms. 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 capacity.

         During 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.

         Pine 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.

         Plaintiff 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.

         During 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 done.

         Plaintiff 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.

         July Meeting

         Plaintiff 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.

         Plaintiff 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.

         According 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 practice.

         July 24 Meeting

         Based 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.

         When 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. ...

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