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Theriault v. Genesis Healthcare LLC

United States Court of Appeals, First Circuit

May 16, 2018

PATRICIA THERIAULT, Plaintiff, Appellant,
v.
GENESIS HEALTHCARE LLC, Defendant, Appellee.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. George Z. Singal, U.S. District Judge]

          Guy D. Loranger, with whom Danielle M. Campbell and Law Office of Guy D. Loranger were on brief, for appellant.

          James R. Erwin, with whom Elizabeth B. Rao and Pierce Atwood LLP were on brief, for appellee.

          Before Howard, Chief Judge, Selya and Barron, Circuit Judges.

          SELYA, Circuit Judge.

         Plaintiff-appellant Patricia Theriault bills this case as one in which the district court ignored the teachings of the Maine Supreme Judicial Court (known in its appellate capacity as the Law Court) and improperly relied on the McDonnell Douglas framework, see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), when granting her employer's motion for summary judgment. At first blush, this billing seems to suggest a nuanced question as to whether the McDonnell Douglas framework is procedural (and, thus, should be applied by a federal court when adjudicating a state-law cause of action in a diversity case, regardless of whether the state court would apply it) or substantive (and, thus, should not be applied by a federal court when adjudicating a state-law cause of action in a diversity case, so long as a state court would not apply it). See Gasperini v. Ctr. for the Humanities, 518 U.S. 415, 427 (1996); Hanna v. Plummer, 380 U.S. 460, 465-66 (1965). Appearances can be deceiving, though, and the presumed need to answer this nuanced question vanishes upon a careful reading of the Maine cases: the district court did not rely on the McDonnell Douglas framework but, rather, followed the prescriptions of the Law Court, went directly to the issue of whether Theriault had made out a cognizable claim for retaliation under state law, and determined that she had not. See Theriault v. Genesis HealthCare LLC, No. 15-cv-530, 2017 WL 1403162, at *8 (D. Me. Apr. 19, 2017). We affirm, leaving the inquiry into the procedural/substantive dichotomy for another day.

         I. BACKGROUND

         We glean the facts from the summary judgment record. Theriault, a certified nursing assistant (CNA), began working in 1997 at RiverRidge, a nursing facility located in Kennebunk, Maine, licensed by the Maine Department of Health and Human Services (DHHS). The defendant, Genesis HealthCare LLC (Genesis), is the parent company of Kennebunk Operations LLC, which owns and operates RiverRidge. Most of the patients at RiverRidge are in assisted living, and many suffer from neurological deficits. As a licensed nursing facility, RiverRidge is required by law to report any allegations of patient abuse as soon as it learns of them. See Me. Rev. Stat. Ann. tit. 22, § 3477(1).

         Theriault worked at RiverRidge alongside Cheyenne Wagner, who was both a CNA and a certified residential medication assistant. On November 11, 2014, Wagner approached Elizabeth Moore, the director of human resources at RiverRidge, to complain about Theriault peering into Wagner's purse and asking what medications she was taking. Wagner also lamented that Theriault had engaged in harassing behavior on Facebook. As a result of Wagner's complaint, Theriault was reassigned to a different unit so that the two women would not have to work together.

         Six days later, Theriault asked Moore why her work schedule had been changed. Moore did not mention Wagner's complaints but simply told Theriault that employee schedules varied based on staffing needs in particular areas. During this conversation, Theriault griped about Wagner, expressing her view that Wagner had been rude because Wagner had refused to discuss personal problems while at work. Moore cautioned Theriault against trying to engage in personal conversations in the workplace.

         Theriault then approached Sarah Louise Corson, the director of nursing at RiverRidge, to remonstrate about Wagner. Corson responded that she had no time for a meeting and asked Theriault to submit her grievances in writing.

         Moore and Corson worried that Theriault's conflict with Wagner might lead Wagner to leave RiverRidge. On November 20, 2014, Moore, Corson, and Robert Straznitskas (RiverRidge's administrator) met with Wagner to discuss her concerns. Wagner brought a handwritten note to the meeting, listing several incidents of worrisome behavior on Theriault's part. For instance, Wagner's note mentioned seeing Theriault grab a resident by the front of his shirt and shake him. It also mentioned several untoward comments allegedly made by Theriault. One time, Theriault had asked another coworker for a gun "to handle" a difficult resident. On another occasion, Theriault asked a pharmacy employee if he had a baseball bat to use on a resident. Similarly, Theriault once told the family of a resident that she had "a noose and a bucket" ready for his use. Wagner reported that this statement was very upsetting to the family.

         The management team (Corson, Moore, and Straznitskas) found Wagner's account troubling and thought that the incident in which Theriault was said to have shaken a resident might well amount to patient abuse.[1] As required by RiverRidge policy, Corson reported the incident to DHHS, and Theriault was immediately suspended pending an investigation. In addition, Corson scheduled a meeting with Theriault for the next day to discuss the insights furnished by Wagner. According to Theriault, she was not told of the allegations against her and assumed that she would be meeting to discuss her grievances against Wagner.

         When she showed up for the scheduled meeting, Theriault brought with her a written summary of her concerns regarding Wagner's workplace behavior. The summary described several episodes in which Wagner supposedly was rude to Theriault, including once when Theriault asked if "anything was going on that I should know about" to which Wagner responded "no not really" in a "very rude[]" manner. Theriault's summary also complained that, as Wagner "walked by [Theriault, ] she turned away and stuck her nose up in the air." Later that same evening, Wagner responded rudely when Theriault asked her if she was going on a break. After Wagner returned in about twenty minutes, Theriault thought that she was in a much more pleasant mood.[2]

         Theriault also wrote that she had observed Wagner texting on her cell phone "many times" while distributing medications. Texting while distributing medications is (for obvious reasons) considered unsafe and is prohibited by RiverRidge policies.

         Corson, Straznitskas, and a Genesis executive were in attendance at the November 21 meeting. They perused Theriault's written summary, but quickly turned to the allegations that had earlier been leveled against her. Theriault acknowledged that she may have made the three statements attributed to her by Wagner, but insisted that they were made in jest. With respect to the claim that she had shaken a resident, she conceded that she might have grabbed him by the front of his shirt but only to prevent him from falling.

         Moore and Corson investigated the allegation that Theriault had shaken the resident. They interviewed the resident himself (who has a serious brain injury and memory loss) as well as his roommates, but unearthed no corroboration. They also interviewed Rosa Vasquez (a CNA), who stated that she had seen Theriault grab the resident by the shirt and shake him during a moment of frustration while moving the resident into his wheelchair. Vasquez intervened, told Theriault to take a break, and completed the transfer. She did not report the incident contemporaneously, but told Wagner about it at a later date.

         Moore and Corson found Vasquez's account to be credible and concluded that Theriault had grabbed the resident in a "non-clinical manner." They also concluded that she had made the three highly inappropriate statements attributed to her by Wagner. Citing these four findings, Moore asked the company's regional headquarters for permission to fire Theriault. That permission was forthcoming, and Theriault was terminated on November 25, 2014. The DHHS subsequently conducted its own investigation into the shaking incident and determined that no patient abuse had occurred.

         Theriault did not go quietly into this bleak night. Asserting that her dismissal was in retaliation for her complaints against Wagner, she filed a claim with the Maine Human Rights Commission and received a right-to-sue letter. See Me. Rev. Stat. Ann. tit. 5, § 4612. She then proceeded to invoke diversity jurisdiction, see 28 U.S.C. § 1332(a), and sued Genesis in Maine's federal district court.[3] Her complaint alleged that Genesis had flouted the Maine Whistleblower Protection Act (WPA), Me. Rev. Stat. Ann. tit. 26, § 833, and had defamed her. Following extensive pretrial discovery, Genesis moved for summary judgment. See Fed.R.Civ.P. 56(a). The district court ...


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