FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. George Z. Singal, U.S. District Judge]
Loranger, with whom Danielle M. Campbell and Law Office of
Guy D. Loranger were on brief, for appellant.
R. Erwin, with whom Elizabeth B. Rao and Pierce Atwood LLP
were on brief, for appellee.
Howard, Chief Judge, Selya and Barron, Circuit Judges.
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.
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).
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
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.
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.
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
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. 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.
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.
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
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.
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
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.
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. 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 ...