United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION FOR SUMMARY
Z. Singal United States District Judge.
the Court is Defendant's Motion for Summary Judgment (ECF
No. 31). After considering the Motion and related filings,
the Court GRANTS the Motion, for the reasons explained below.
a party is entitled to summary judgment if, on the record
before the Court, it appears “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).
“[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the
requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). An issue is
“genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Id. at 248. A “material
fact” is one that has “the potential to affect
the outcome of the suit under the applicable law.”
Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701,
703 (1st Cir. 1993).
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. Santoni v. Potter, 369 F.3d
594, 598 (1st Cir. 2004).
the moving party has made this preliminary showing, the
nonmoving party must “produce specific facts, in
suitable evidentiary form, to establish the presence of a
trialworthy issue.” Triangle Trading Co., Inc. v.
Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999)
(quotation marks and punctuation omitted); see also
Fed.R.Civ.P. 56(e). “Mere allegations, or conjecture
unsupported in the record, are insufficient.”
Barros-Villahermosa v. United States, 642 F.3d 56,
58 (1st Cir. 2011) (quoting Rivera-Marcano v. Normeat
Royal Dane Quality A/S, 998 F.2d 34, 37 (1st Cir.
1993)); see also Wilson v. Moulison N. Corp., 639
F.3d 1, 6 (1st Cir. 2011) (“A properly supported
summary judgment motion cannot be defeated by conclusory
allegations, improbable inferences, periphrastic
circumlocutions, or rank speculation.”). “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 for the moving
party.” In re Ralar Distribs., Inc., 4 F.3d
62, 67 (1st Cir. 1993).
Patricia Theriault (also known as “Patty” or
“Pat”) is a Certified Nursing Assistant
(“CNA”) who began working at Defendant's
nursing facility, RiverRidge Center (“River
Ridge”), in 1997. River Ridge, located in Kennebunk,
Maine, is licensed by the State Department of Health and
Human Services (“DHHS”) to provide skilled
nursing and rehabilitation services and assisted living to
its residents. As a licensed nursing facility, River Ridge is
required by state law to report any reports or allegations of
suspected abuse immediately, without waiting until it has
conducted an investigation into the reports or allegations.
Cheyenne Wagner was a CNA and also a Certified Residential
Medication Assistant (“CRMA”) who worked at River
Ridge from early 2014 to early 2015. Theriault and Wagner
worked the same shift on the Saco River unit at River Ridge,
with Theriault providing personal care for the residents
while Wagner would dispense medications. Until the events
triggering this suit, Theriault never had serious issues with
her job performance.
November 11, 2014, Wagner complained to River Ridge Human
Resource Manager Elizabeth Moore about Theriault. After
meeting with Wagner, Moore prepared a memorandum summarizing
their meeting. According to the memo, Wagner complained to
Moore that Theriault, among other issues, was “prying
into [Wagner's] personal life by looking at medications
in [her] open handbag” and asking her why she was on
medication. (Joint Stipulated Record
(“JSR”) (ECF No. 30), Page ID # 208.) Wagner was
in fact taking medications during this period and had been
placed on light duty due to an injury, but River Ridge knew
about her medications and had approved her taking them. As a
result of Wagner's complaint to Moore, management
assigned Theriault to a different unit so that she and Wagner
would not have to work together.
November 17, Theriault met with Moore to raise several
issues. Moore again prepared a memo summarizing the meeting.
According to Moore's memo, Theriault first asked why she
had been re-assigned to a different unit and then began to
complain about Wagner. The relevant section of the memo reads
in its entirety as follows:
Patty then stated that she had been having trouble with
Cheyenne Wagner; that she felt Cheyenne didn't like her
and that she wanted to help her. I asked her what she meant
by that and Patty stated that she is “kind of like the
fixer for the girls on the unit[.”] When they have
problems, she listens and tries to help them out. Patty said
that she asked Cheyenne if there was a problem between the
two of them that she would like to work it out and Patty said
Cheyenne told her “there was no problem” and that
she just wanted to do her job. Patty said she doesn't
like to leave things unresolved and told her that if she
needed to talk to her she could. Patty then stated that
Cheyenne got a little miffed and said that she “just
wanted to complete her med pass[.”] Patty stated that
she felt like Cheyenne was rude to her.
I asked Patty if she spoke with her unit manager about it and
she said she didn't. I explained to Patty that the most
important job here is resident care [and] that sometimes
people don't really want to have social conversations. I
explained that perhaps private and personal matters are not
something that everyone wants to discuss.
Patty then stated again that, “well, I like to help
people if something is wrong.” I acknowledged her care
and concern but again reminded Patty that if co-workers do
not want to discuss personal matters, that it's their
choice to make and that we should all respect that.
(JSR, Page ID # 148.) Theriault alleges that Moore's memo
is incomplete and that she also told Moore that Wagner had
been acting nervous, standoffish, and rude; that Wagner had
expressed discontent with her job; that she used the facility
phone to make personal calls and the facility computer to
look for jobs; and that she had texted while doing her med
pass, that is, while dispensing medications.
subsequently asked Acting Director of Nursing Sarah-Louise
Corson if she could speak with her, but Corson said that she
was very busy and asked Theriault to write her concerns down.
(JSR, Page ID # 118.) During this one to two minute
interaction, Theriault mentioned the “Cheyenne
situation” but did not discuss the substance of her
concerns with Corson. (JSR, Page ID # 118.) Theriault began
working on a write-up of her concerns, based on notes she had
been taking, that she would eventually present to River Ridge
management on November 21, as described below.
November 20, Wagner met with Moore, Corson, and River Ridge
Administrator Robert Straznitskas and made several
allegations against Theriault, including that she had
improperly put her hands on a resident (sometimes hereinafter
referred to as “Resident #1”). After this
meeting, Straznitskas sent an email to Moore and Valerie
Coleman, Regional Vice President of Operations for Genesis,
stating, in relevant part, the following:
Upon receiving information that c.n.a. Cheyenne Wagner was
experiencing stressful relations with a coworker, [Moore,
Corson, and Straznitskas] met with Cheyenne . . . .
Cheyenne gave feedback regarding coworker Patty Theriault
regarding these experiences:
- Patty had “shaken” [Resident #1] from Saco unit
when she was upset at him for being difficult. When asked if
any other employee had witnessed this behavior Cheyenne
claimed that some others might have (Megan), but for sure
Rosa Vazquez had witnessed this . . . .
- One time Patty had asked another co-worker if she
“had a gun” when feeling irritated at another
- When resident [redacted] was overwhelming her, she had
asked the family i[f] they had a “noose and
bucket” ready for him. Family left upset.
- Patty once asked the medicine delivery guy from the
pharmacy for a baseball bat.
(JSR, Page ID # 209.) Wagner had also repeated her previous
allegations that Theriault had looked inside her purse and
was bothering her on Facebook.
the November 20 meeting between Wagner, Moore, Straznitskas,
and Corson, Moore and Corson called Theriault immediately and
told her that she was suspended pending investigation, as
required by Genesis policy. Wagner's allegation regarding
Theriault's physical interaction with a resident was
reported to DHHS, as required by Genesis policy and state
law. The report submitted to DHHS by Corson on November 20
stated, under “Description of Incident, ”
“CRMA reports seeing a CNA physically shake and yell at
a resident after getting frustrated with said
resident.” (JSR, Page ID # 218.)
next morning, on November 21, Corson called Theriault and
told her to come in to work that day to meet with
administrators. Corson, Straznitskas, and Donna Trundy, a
regional Genesis employee, met with Theriault. Theriault gave
the administrators the document she had prepared describing
her allegations against Wagner and they all read it. At the
time she had written the statement, Theriault did not have
any knowledge of Wagner making allegations against her.
Theriault's document reads in its entirety as follows:
About 2 weeks ago, [another River Ridge employee] was going
to work until 7pm on Saco and did 7 to 3 on Mousam then 3 to
7pm on Saco . . . I worked 3 to 7 on Kennebunk and to go to
Saco at 7 to 11 pm . . . When I went to Saco at 7pm Cheyenne
Wagner was doing her med pass I asked how the men [were] and
if anything was going on that I should know about she said no
not really that all the work was done [except] for meds . . .
she said this very rudely and as time passed she was really
acting nervously and at one point while she walked by me she
turned away and stuck her nose up in the air . . . Once her
med pass was done, she was in the little med room office
banging around, nervously and So I went in and asked her if
she needed any help or what could I do to help . . . response
was I am just doing my job I am too busy . . . during the med
pass there was at least one or two of the guys that came to
her for one thing or another and [she] was quite rude to them
Around 9:45 pm Cheyenne was putting on her coat I said to her
oh you [are] going on a break . . . NO she said I just want
to go outside . . . and stormed off the unit . . . when she
returned 20 minutes later, her mood had changed dramatically
and was talking to me normally . . . for the rest of the
shift . . . I also asked Cheyenne if there was a problem
between us let me know and we could discuss it and perhaps
work it out but she said there wasn't . . .
Cheyenne also told me that while [a River Ridge employee] was
out on [maternity] leave that she was the second shift
supervisor ([another River Ridge employee] filled [the River
Ridge employee]'s hours with Cheyenne on a temp basis)
and she was suppose[d] to supervise anyone who worked there
and tell them what to do . . . boss them around to the point
of when to take the laundry/trash out . . .
There [are] many times that Cheyenne has been texting on her
cell phone during her med pass . . . and there [were] times
she made a personal phone call from the facility phone . . .
for personal reasons not cause she was working extra to let
She has also told me in a conversation we had one night the
conversation was what unit we liked the best she said Saco
doing meds . . . What about the other units she said she
hated Kennebunk and Mousam I asked what staff or patients she
said both . . . and just wanted to stay on Saco to do meds. I
reminded her that we work for the whole building and not just
one unit . . .
Cheyenne has also made it know[n] that she doesn't want
to be at River Ridge and that she was openly looking for
another job I have seen her use the facility computer to look
for a job opening ...