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Schott v. Kindred Healthcare Operating Inc.

United States District Court, D. Maine

July 27, 2018




         Concluding that there are genuine issues of material fact that require resolution by a factfinder, the Court denies a motion for summary judgment by a nursing center that terminated its executive director for accepting and transcribing a doctor's order to discontinue a medication for a resident and thereby violating Maine regulations, which limit those individuals who may accept a telephonic physician order to start or discontinue prescribed medicine to registered nurses and pharmacists. The plaintiff denies accepting and transcribing the physician's order, which creates a genuine issue of material fact.

         The plaintiff also claims that one of the nursing center's managerial employees defamed her by falsely informing third parties that the nursing center had no choice but to terminate her because she had acted in a clinical manner without being licensed to do so. The Court also denies the defendants' motion for summary judgment on the plaintiff's defamation count, because the defamation count is premised on the truth of the manager's comment, a fact the plaintiff denies.


         On October 5, 2016, Potitsa Schott filed a complaint in this Court against Kindred Healthcare Operating, Inc., Kindred Nursing Centers West, LLC, and Maine Assisted Living, LLC, d/b/a Monarch Center, [1] alleging that the Kindred Defendants violated the Maine Human Rights Act, 5 M.R.S. §§ 4551 et seq. (MHRA) and the Maine Whistleblowers' Protection Act, 26 M.R.S. §§ 831 et seq. (MWPA) and defamed her under common law. Compl. (ECF No. 1). The Kindred Defendants filed an answer on December 5, 2016, denying the essential allegations of the Complaint. Answer to Compl. (ECF No. 4).

         On September 28, 2017, after the completion of discovery, the Kindred Defendants filed a motion for summary judgment, a stipulation of facts, and a statement of uncontested material facts. Defs.' Mot. for Summ. J. (ECF No. 38) (Defs.' Mot.); Stip. Statement of Material Facts (ECF No. 39) (Stip.); Defs.' Statement of Material Facts (ECF No. 40) (DSMF). On October 23, 2017, Ms. Schott filed a response, opposing the motion, together with an opposing statement of material facts and a statement of material facts. Pl.'s Opposition to Defs.' Mot. for Summ. J. (ECF No. 45) (Pl.'s Opp'n); Pl.'s Opposing Statement of Material Fact and Statement of Additional Material Facts (ECF No. 46) (PRDSMF; PSAMF). On October 30, 2017, the Kindred Defendants filed their reply and a response to the Plaintiff's statement of facts. Defs.' Reply in Support of Mot. for Summ. J. (ECF No. 50) (Defs.' Reply); Defs.' Reply to Pl.'s Statement of Additional Material Facts (ECF No. 51) (DRPSAMF).

         On November 2, 2017, Ms. Schott filed a sur-reply in opposition to the Kindred Defendants' motion for summary judgment.[2] Pl.'s Sur-Reply in Opp'n to Defs.' Mot. for Summ. J. (ECF No. 56) (Pl.'s Sur-Reply). The Kindred Defendants filed a response to the Plaintiff's sur-reply on November 13, 2017.

         On October 31, 2017, the Kindred Defendants moved for oral argument on the motion for summary judgment. Req. for Oral Argument on Defs.' Mot. for Summ. J. (ECF No. 52). On November 20, 2017, the Court granted the request, Order Granting Req. for Oral Argument/Hr'g, and held oral argument on July 17, 2018.

         At oral argument, the Court invited the parties to file memoranda by July 20, 2018, regarding the Kindred Defendants' assertion that Ms. Schott is bound by the contents of her first sworn declaration to the Maine Human Rights Commission and may not rely on subsequent sworn declarations that differently describe the same events. Ms. Schott and the Kindred Defendants filed supplemental memoranda on July 20, 2018. Pl.'s Suppl. Br. in Opp'n to Defs.' Mot. for Summ. J. (ECF No. 61) (Pl.'s Suppl. Br.); Defs.' Suppl. Mem. on Whether Pl. May Contradict Her Own Prior Sworn Statement to Create a Genuine Issue of Material Fact (ECF No. 62) (Defs.' Suppl. Br.).


         A. The Parties and Others[4]

         Potitsa Schott is a resident of Biddeford, York County, state of Maine. Compl. ¶ 1; Answer ¶ 1. Kindred Healthcare Operating, Inc. is a Delaware corporation headquartered in Louisville, Kentucky and the parent organization for Kindred Nursing Centers West, LLC. Compl. ¶ 2; Answer ¶ 2. Defendant Nursing Centers West, LLC is a Delaware limited liability company headquartered in Louisville, Kentucky and wholly owns Maine Assisted Living, LLC, which owns and operates the Monarch Center. Compl. ¶ 3; Answer ¶ 3. Maine Assisted Living, LLC is a Maine limited liability company with a principal place of business in Saco, York County, Maine. Compl. ¶ 4; Answer ¶ 4. Monarch Center is now called Kindred Living at Monarch. Stip. ¶ 1.

         B. Potitsa Schott: Job Duties as Executive Director

         Potitsa Schott worked at the Monarch Center, the Kindred Defendants' assisted living facility in Saco, Maine for approximately two and a half years, first as the Admissions Coordinator and then, beginning in October 2013, as the Executive Director. Stip. ¶ 1. Ms. Schott's primary job duties as Executive Director were to operate the facility efficiently and profitably, and comply with Kindred and state policies. PSAMF ¶ 1; DRPSAMF ¶ 1. As Executive Director of the Monarch Center, Ms. Schott was responsible for the overall operation of the Monarch Center.[5] DSMF ¶ 1; PRDSMF ¶ 1. Ms. Schott supervised all employees in the Monarch Center and reported issues at the facility, including clinical, human resources, and performance issues, to one or more regional Kindred employees, Vice President of Assisted Living Brian Newman, District Director of Clinical Operations Mary Yesue, and/or District Director of Human Resources Gregg Hanscom.[6] DSMF ¶ 2; PRDSMF ¶ 2. Ms. Schott's direct supervisor was Regional Vice President of Assisted Living Brian Newman. PSAMF ¶ 3; DRPSAMF ¶ 3. Ms. Schott is not a licensed or registered nurse. Stip. ¶ 3.

         During the time, Ms. Schott worked as Executive Director, Laura Tardif (now Walton) was the Director of Nursing Services (DNS) at the Monarch Center and reported to Ms. Schott. Stip. ¶ 2. Ms. Tardif was responsible for clinical oversight of the facility. PSAMF ¶ 4; DRPSAMF ¶ 4. Although Ms. Tardif denied that the Director of Nursing job description accurately summarized her duties at the Monarch Center, she was unable to articulate how the job description did not apply to her.[7] PSAMF ¶ 5; DRPSAMF ¶ 5. Among other duties, the Director of Nursing is responsible for:

[O]versight of the daily clinical and administrative operations of the nursing department to assure that each resident receives the necessary care and services to attain or maintain the highest practicable physical, mental and psychosocial well being. . . . [A]dvocate for the residents and staff under his/her direction; Remains knowledgeable about the residents and their conditions through mechanisms such as making daily rounds and discussion with charge nurse and promotes person-centered care; Promotes and evaluates residents and family satisfaction with nursing services; Advocates for and assists with smooth transitions of care from one setting to another through effective communication and discharge planning activities; Promotes an environment where residents' rights are protected and residents are free from abuse and neglect; and Communicates effectively, actively listens and functions effectively as part of the team.

PSAMF ¶ 6; DRPSAMF ¶ 6. Among relevant qualifications for the Director of Nursing position are: certification as a director of nursing or nursing executive/administrator in long term care preferred and a valid RN license in the state employed.[8] PSAMF ¶ 7; DRPSAMF ¶ 7. Ms. Tardif did not hold a certification as a director of nursing executive/administrator and did not have a RN license. PSAMF ¶ 7; DRSAMF ¶ 7.

         In September 2014, Ms. Schott drafted a Performance Improvement Plan (PIP) outlining a number of her concerns about Ms. Tardif's performance and attitude. PSAMF ¶ 8; DRPSAMF ¶ 8. Ms. Schott's ability to supervise or discipline Ms. Tardif was severely limited, and Mr. Newman prohibited Ms. Schott from issuing Ms. Tardif a PIP in 2014.[9] PRDSMF ¶ 2; PSAMF ¶ 9; DRPSAMF ¶ 9. Also, Ms. Yesue interfered with Ms. Schott's ability to manage the facility, especially with regard to Ms. Tardif. Id. Several employees told Ms. Schott that Ms. Tardif approached them to join with her to complain about Ms. Schott because Ms. Tardif opposed Ms. Schott's appointment as the Executive Director.[10] PSAMF ¶ 10; DRPSAMF ¶ 10. In 2014 and early 2015, Ms. Tardif told several Monarch Center employees that Ms. Schott would soon be fired.[11] PSAMF ¶ 11; DRPSAMF ¶ 11.

         C. The March 4, 2015 Performance Improvement Plan

         On March 4, 2015, Brian Newman and Gregg Hanscom issued Ms. Schott a “final written warning PIP [performance improvement plan].” PSAMF ¶ 12; DRSAMF ¶ 12. Ms. Schott did not sign the PIP because she opposed any such warning absent a first, second, and/or third warning as required under Kindred personnel policies and because the PIP contained several false and misleading allegations.[12] PSAMF ¶ 13; DRPSAMF ¶ 13. At his deposition, Mr. Newman was unable to explain how any of the issues that he labeled “dishonest” in the March 3, 2015 PIP actually constituted “dishonesty.”[13] PSAMF ¶ 14; DRPSAMF ¶ 14. Mr. Newman was unable to explain what gave rise to, or triggered, the issuing the March 4, 2015 PIP to Ms. Schott.[14] PSAMF ¶ 15; DRPSAMF ¶ 15.

         D. Potitsa Schott's Reports to Management About Laura Tardif

         During the meeting with Mr. Newman and Mr. Hanscom, and separately with Ms. Yesue, Ms. Schott reported two specific concerns about Ms. Tardif's professional incompetence and actions that jeopardized the health and safety of Monarch Center residents.[15] PSAMF ¶ 16; DRPSAMF ¶ 16.

         Ms. Schott reported that on March 3, 2015, Ms. Tardif failed to order medication and ensure that a resident was given medication before the resident's oral surgery appointment.[16] PSAMF ¶ 17; DRPSAMF ¶ 17. Ms. Schott also reported that Ms. Tardif said she was going to be at the Monarch Center's sister facility in Cape Elizabeth and that she would return; however when she did not return, Ms. Schott called the sister facility and was told that Ms. Tardif had left a long time ago. Id. Ms. Schott called Ms. Tardif who said she would not be back that day. Id. Peggy Blood had to scramble later that night to make sure the resident received his medication in time to have his surgery performed. Id. Ms. Schott made this report on March 4, 2015 because of her concern for the safety and comfort of the resident, the doctor, and the doctor's employees. Id.

         Ms. Schott also reported an instance occurring in February 2015 when Ms. Tardif lied to a family member about a resident not receiving her cancer medication at the Monarch Center.[17] PSAMF ¶ 18; DRPSAMF ¶ 18.

         Ms. Schott also reported that she had contacted Dr. Keiski and the family member to discuss Ms. Tardif's dishonesty.[18] PSAMF ¶ 23; DRPSAMF ¶ 23.

         As to both issues, Mr. Newman and Mr. Hanscom said that they “didn't want to hear anything about it.”[19] PSAMF ¶ 18; DRPSAMF ¶ 18.

         E. Monarch Center Resident PD and the Weekend of March 7-8, 2015

         On March 4, 2015, the D family placed their father, PD or Mr. D, at the Monarch Center for assisted living care and PD was admitted to the Monarch Center. PSAMF ¶ 20; DRPSAMF ¶ 20; Stip. ¶ 4. Over the weekend of March 7-8, 2015, PD exhibited challenging behavior, including physical altercations with staff and another resident. Stip. ¶ 5. Mr. D had serious health problems and displayed aggressive and violent behavior.[20] PSAMF ¶ 21; DRPSAMF ¶ 21. Soon after Mr. D's admission, in collaboration with Ms. Tardif, Monarch Center Medical Director Dr. Lisa Keiski prescribed Zyprexa to Mr. D.[21] Id. Ms. Schott asked RN Peggy Blood, who was on call that weekend, to go into the facility to evaluate PD. Stip. ¶ 6.

         Over that weekend, Ms. Schott discussed PD's challenging behavior with Ms. Tardif and asked her to call PD's family. DSMF ¶ 3; PRDSMF ¶ 3. Specifically, on March 7, 2015, Ms. Schott received a voicemail from the on-call nurse Peggy Blood that Mr. D's family wanted to speak with Ms. Tardif about their concerns regarding Mr. D's medication and his highly erratic behavior. PSAMF ¶ 24; DRPSAMF ¶ 24. Ms. Schott called Ms. Tardif several times and asked her to address the family's concerns and look into the medication issue.[22] Id. On March 8, 2015, the weekend on-call nurse called Ms. Schott to report an incident in which Mr. D. was acting very aggressively toward a staff member and another resident. PSAMF ¶ 25; DRPSAMF ¶ 25. Ms. Schott spoke with Ms. Tardif about the behavior that Mr. D. was exhibiting and again asked her to follow-up with the employees and Mr. D's family. Id. PD was not transferred to a hospital over the weekend. Stip. ¶ 7. Ms. Schott understood that a hospital transfer was one of several options during an emergency.[23] DSMF ¶ 4; PRDSMF ¶ 4.

         F. March 9, 2015: Laura Tardif Become Ill. and Goes Home

         At the morning management meeting on Monday, March 9, 2015, Ms. Schott told the staff, including Ms. Tardif, that Mr. D had a rough weekend and that his son and family were very concerned about their father's health and safety. PSAMF ¶ 26; DRPSAMF ¶ 26. At the same morning management meeting on Monday, March 9, 2015, at which both Ms. Schott and Ms. Tardif were present, Ms. Tardif reported that she was sick. DSMF ¶ 5; PRDSMF ¶ 5; Stip. ¶ 8. Mr. D's son expressed concerns to Ms. Schott about his father's health and asked that his father be seen by a nurse or doctor. Stip. ¶ 9. One of the family's concerns related to Zyprexa, the medicine that Mr. D had been prescribed. Stip. ¶ 10.

         Ms. Tardif informed Ms. Schott that she was going home due to her illness.[24]DSMF ¶ 6; PRDSMF ¶ 6. Ms. Schott objected to Ms. Tardif's going home sick and tried to get her to speak with PD's son, who was present at Monarch Center, regardless of whether she was sick.[25] DSMF ¶ 7; PRDSMF ¶ 7. Ms. Tardif said “she was not going to deal with this now.”[26] PSAMF ¶ 27; DRPSAMF ¶ 27. Ms. Schott and Monarch Admissions Director Jessie Morin asked Ms. Tardif several times to call Mr. D's son. Id. Ms. Tardif refused and said she “blocked” Mr. D's son's number; Ms. Schott pleaded with her in person and by phone to address the situation.[27] Id. Ms. Tardif again refused and said she was going home because she was sick. Id. Ms. Schott expressed serious concern that they needed to do something to help Mr. D, but Ms. Tardif on no fewer than three occasions refused to speak to Mr. D's family. Id. Ms. Tardif thought she was “very sick” with strep throat and she went home without speaking to Mr. D's son.[28] DSMF ¶ 8; PRDSMF ¶ 8. During the morning of March 9, 2015, Ms. Tardif informed Ms. Yesue and Mr. Newman by email that she was ill with strep throat and Ms. Yesue instructed her to go home. DSMF ¶ 9; PRDSMF ¶ 9.

         G. March 9, 2015: Potitsa Schott and Mr. D

         About an hour after Mr. D's son arrived at the Monarch Center on the morning of March 9, 2015, Ms. Schott visited Mr. D's room. DSMF ¶ 10; PRDSMF ¶ 10. During her visit to Mr. D's room, Ms. Schott considered Mr. D to be in danger and believed the situation was an emergency. DSMF ¶ 11; PRDSMF ¶ 11. After visiting with Mr. D, Ms. Schott did not immediately set in motion the process to have Mr. D transferred to the hospital.[29] DSMF ¶ 12; PRDSMF ¶ 12. Having already tried to get Ms. Tardif to see Mr. D, Ms. Schott left a message for Dr. Keiski, a contracting physician who visited the Monarch Center once every two weeks, every other Wednesday.[30] DSMF ¶ 13; PRDSMF ¶ 13. Ms. Schott felt it was necessary to contact Dr. Keiski, who told Ms. Schott she was in Yarmouth and could not make it to Monarch. PSAMF ¶ 28; DRPSAMF ¶ 28; DSMF ¶ 14; PRDSMF ¶ 14.

         After leaving a message for Dr. Keiski, Ms. Schott also called Kindred District Director of Clinical Operations Mary Yesue to inform her that Ms. Tardif had gone home for the day and to discuss options for clinical coverage. DSMF ¶ 15; PRDSMF ¶ 15. Ms. Yesue was not concerned about Ms. Tardif's departure because she knew that the Monarch Center was not required to have a nurse in the facility at all times, and that the resident could be transferred to the hospital in the event of a medical emergency.[31] DSMF ¶ 16; PRDSMF ¶ 16. The Monarch Center was not required to, and did not, staff a licensed nurse on duty in the building at all times.[32] DSMF ¶ 17; PRDSMF ¶ 17. Ms. Schott understood that state regulations only required that Assisted Living Facilities such as the Monarch Center provide a registered nurse within the facility “weekly.”[33] DSMF ¶ 18; PRDSMF ¶ 18. Ms. Tardif was not able to fulfill the weekly registered nurse requirement because she is a Licensed Practical Nurse (LPN), rather than a Registered Nurse (RN). DSMF ¶ 19; PRDSMF ¶ 19. Including Ms. Tardif, at least five nurses, two of whom were registered nurses, were on staff at the Monarch Center in March 2015. DSMF ¶ 20; PRDSMF ¶ 20.

         Ms. Schott was aware that two of Monarch's staff nurses, Michelle Walker and Era Brown, were unavailable that day, but she did not call either of the remaining nurses, Peggy Blood and Jennifer Courtois, to ask them to come into the facility. DSMF ¶ 21; PRDSMF ¶ 21. Ms. Schott was under the impression that Jennifer Courtois was on vacation on March 9, 2015.[34] PRDSMF ¶ 21. Even though Ms. Schott thought Ms. Courtois was on vacation, Nurse Courtois arrived at the Monarch Center at 4:30 p.m. on March 9, 2015.[35] DSMF ¶ 22; PRDSMF ¶ 22.

         After calling Ms. Yesue, Ms. Schott spoke with Dr. Keiski. DSMF ¶ 23; PRDSMF ¶ 23. In her sworn statement to the Maine Human Rights Commission (MHRC), Ms. Schott gave the following description of her phone call with Dr. Keiski on March 9, 2015 and the actions she took after the phone call:

I told Dr. Keiski that Ms. Tardif went home sick. The “D” family was right next to me when I was on the phone with the doctor. The “D” family gave a direct order for the Monarch staff not to give PD the Zyprexa medication. The family was adamant. Dr. Keiski was aware that the family did not want the medication, thus directed that the medication should be withheld until she was able to see PD on Wednesday. I relayed Dr. Keiski's and the “D” family's directive to the staff by phone. Dr. Keiski also told me that if the “D” family continued to express serious concerns over their father's health, then staff should call 911 and have PD brought to Maine Medical Center by ambulance. That's exactly what happened. PD was transferred to MMC that afternoon before the 2nd shift . . . .
Dr. Kieski and the “D” family issued the directive to hold the Zyprexa and under those emergency circumstances (the “D” family was adamant that PD not receive another dosage of Zyprexa), it fell to me, as Executive Director, to relay the message regarding this directive to the staff given that there was no clinical person present to do so.[36]

DSMF ¶ 24; PRDSMF ¶ 24. Ms. Schott's MHRC charge bears her signature in three places, including a declaration “under penalty of perjury that the foregoing is true and correct, ” as well as the statement “I swear or affirm that I have read the above charge and that it is true to the best of my knowledge, information and belief.”[37]DSMF ¶ 51; PRDSMF ¶ 51.

         Dr. Keiski had known Ms. Schott for two-and-one-half years, and knew Ms. Schott was not a licensed or registered nurse.[38] PSAMF ¶ 29; DRPSAMF ¶ 29. Dr. Keiski was aware that the D family did not want Mr. D to receive the medication, but that she could not give Ms. Schott a medical order.[39] PSAMF ¶ 30; DRPSAMF ¶ 30. Ms. Schott told Dr. Keiski that Ms. Tardif went home sick. PSAMF ¶ 31; DRPSAMF ¶ 31. Mr. D's son was present with Ms. Schott while Ms. Schott was on the phone to Dr. Keiski. Id. Dr. Keiski could hear that the family wanted to discontinue the Zyprexa medication. PSAMF ¶ 32; DRPSAMF ¶ 32. Dr. Keiski said the medication should be withheld until she was able to see Mr. D. a couple of days later. Id. Ms. Schott told Dr. Keiski that she was not a nurse and therefore could not take an order.[40] Id. Dr. Keiski told Ms. Schott that if Mr. D's family continued to express serious concerns over his health, they should call 911 and send him to the hospital. Id.

         After speaking with Dr. Keiski, Ms. Schott called down to Mr. D's unit from her office.[41] DSMF ¶ 25; PRDSMF ¶ 25. Ms. Schott did not believe that Dr. Keiski had given her an order; she believed that Dr. Keiski acknowledged that the family did not want Zyprexa.[42] PSAMF ¶ 33; DRPSAMF ¶ 33. Ms. Schott did not feel she had any responsibility to make sure Mr. D did not receive any more Zyprexa after she spoke to Dr. Keiski.[43] PSAMF ¶ 34; DRPSAMF ¶ 34. Ms. Schott felt Mr. D's life was in danger because Ms. Tardif left the community unattended and without coverage.[44]PSAMF ¶ 35; DRPSAF ¶ 35. Ms. Schott explained in her deposition that her contact with the staff, as stated in the Addendum to her Charge, was to relay Mr. D's family's and Dr. Keiski's concerns, and that she was going to send him to the hospital to be evaluated. PSAMF ¶ 36; DRPSAMF ¶ 36.

         Ms. Schott alerted the staff because Mr. D was under their care, and they regularly inform the staff if someone from their neighborhood is being transferred to the hospital so that they are aware of the situation. PSAMF ¶ 37; DRPSAMF ¶ 37. Ms. Schott relayed the family's and Dr. Keiski's concerns to the staff at the same time she called to have Mr. D transferred to the hospital. PSAMF ¶ 38; DRPSAMF ¶ 38. Ms. Schott was concerned about Mr. D's health and wanted him to be seen by a doctor or a nurse. PSAMF ¶ 39; DRPSAMF ¶ 39.

         Around 2 p.m., three hours after Mr. D's son began speaking with Ms. Schott about his concerns, Mr. D was transferred to the Maine Medical Center. DSMF ¶ 26; PRDSMF ¶ 26; PSAMF ¶ 22; DRPSAMF ¶ 22; PSAMF ¶ 40; DRPSAMF ¶ 40. Ms. Schott did not have Mr. D transferred to the hospital until after she had spoken with Dr. Keiski. DSMF ¶ 27; PRDSMF ¶ 27. From 10:44 a.m., the time Ms. Tardif left the Monarch Center, to 2:00 p.m., the time Mr. D was transferred, there was no doctor or nurse in the facility on March 9, 2015, and the only way for Mr. D to be seen by a doctor or nurse was to transfer him to the hospital.[45] DSMF ¶ 28; PRDSMF ¶ 28. Although Mr. D's Zyprexa dosage was “prn”, his next regular dose was not scheduled to be administered until approximately 8:00 p.m.[46] PSAMF ¶ 41; DRPSAMF ¶ 41. Ms. Schott called Ms. Yesue to report what had transpired and to express her concerns about Ms. Tardif's actions.[47] PSAMF ¶ 42; DRPSAMF ¶ 42. Ms. Schott later wrote an email to Ms. Yesue to summarize what had happened and did not mention anything about discontinuing Mr. D's medication or taking an order from Dr. Keiski. PSAMF ¶ 43; DRPSAMF ¶ 43.

         H. Events on March 9, 2015 After Mr. D was Transferred

         When RN Jennifer Courtois arrived at the Monarch Center on March 9, 2015, Ms. Schott told her about the events with Mr. D earlier that day. DSMF ¶ 29; PRDSMF ¶ 29. Although Ms. Schott told Ms. Courtois that she had not taken a doctor's order, Ms. Courtois told her that she had improperly done so.[48] DSMF ¶ 30; PRDSMF ¶ 30. Although Ms. Schott was not aware of it at the time, Ms. Courtois wrote a note dated March 9, 2015, detailing her concerns about Ms. Schott's actions, which states in part:

Dr. Keiski had called Pota told me that she gave her a verbal order to D/C Zypreza, both scheduled PRN dose until further notice. When she told me that she had done this it was taken care of, he didn't receive it that he had been sent to MMC to have psych eval workup, I asked her if she had received a FAX order signed by Dr. Keiski. She said “no.” I asked if she had written this down, she said “no, she just told me to D/C it.” I said, “Pota, you can't take a verbal order, you're not licensed! Only an LPN or RN can do that!” Her response was, “I knew you were coming in, can you take care of it?” I reiterated, you can not do this, you can not take verbal orders!” 4:45pm I paged Dr. Keiski (She is usually only on call until 4:30pm) she did not ever return page.[49]

DSMF ¶ 31; PRDSMF ¶ 31.

         During the evening of March 9, 2015, Ms. Schott sent an email to Mary Yesue, explaining that Mr. D had been sent out for evaluation at the hospital earlier that day, writing in part:

Mr. [D] (new resident) was sent out to be evaluated at Maine Medical Center. Mr. [D]'s son, [TD] came in this morning wanting to speak with both me and Laura about his father's care. Laura had already spoken to him 5 or 6 times over the weekend to reassure him. Laura came in today but is still sick and went back home . . . . The family had a lot of concerns and felt that he needed to be evaluated. I spoke with both the son and daughter for hours to reassure them that he is transitioning into our environment.

DSMF ¶ 32; PRDSMF ¶ 32.

         I.Events After March 9, 2015 Leading to Potitsa Schott's Suspension

         Ms. Schott does not know what would have been done differently on March 9, 2015 if there had been a nurse present at the Monarch Center.[50] DSMF ¶ 33; PRDSMF ¶ 33. On March 11, 2015, Ms. Yesue received Ms. Courtois' note and met with Ms. Schott to discuss the note's contents. DSMF ¶¶ 34-35; PRDSMF ¶¶ 34-35. When asked by Ms. Yesue, Ms. Schott denied entering any notes on Mr. D's medical record and making any medical decisions herself regarding whether to administer or discontinue medication but acknowledged that she called Dr. Keiski and relayed Dr. Keiski's directive to the Monarch staff. DSMF ¶ 36; PRDSMF ¶ 36. Ms. Schott clarified that she relayed Dr. Keiski's and the D family's “concerns” to the Monarch staff, but denied that her relayed message in any way constituted an “order.”[51]PRDSMF ¶ 36. Although Ms. Schott denies accepting an order from Dr. Keiski, she acknowledges that for her to accept a physician's order to discontinue medicine would have been a violation of state regulation. DSMF ¶ 37; PRDSMF ¶ 37. Ms. Yesue informed Ms. Schott that she was suspended pending the outcome of the investigation into the events of March 9, 2015. DSMF ¶ 38; PRDSMF ¶ 38.

         Also on Wednesday, March 11, 2015, Dr. Keiski came to Monarch to make her rounds.[52] PSAMF ¶449; PRDSAMF ¶ 44. Dr. Keiski raised her concerns about Ms. Tardif's nursing abilities and attitude with Ms. Schott and Ms. Yesue, who was also present at Monarch.[53] Id. Ms. Yesue arrived at Monarch in the late afternoon of March 11, 2015, and she never asked Dr. Keiski if she had given Ms. Schott an order. PSAMF ¶ 45; DRPSAMF ¶ 45. Ms. Yesue claims that she may not have learned about the incident until after Dr. Keiski left. Id. Ms. Schott testified that after she spoke to Ms. Yesue on March 11, 2015 and told her about what had happened, Ms. Yesue told her to go home while she conducted an investigation. PSAMF ¶ 46; DRPSAMF ¶ 46. Before Ms. Schott left, she met with Dr. Keiski to discuss Dr. Keiski's concerns about Ms. Tardif.[54] Id.

         J. Kindred's Investigation and Termination of Potitsa Schott

         Mr. Newman, who lives in Ohio, was not present at the Monarch Center during the investigation but directed Ms. Yesue and Mr. Hanscom to conduct the investigation.[55] DSMF ¶ 39; PRDSMF ¶ 39. Meanwhile, Ms. Yesue and Regional Human Resources Manager Gregg Hanscom purportedly conducted an investigation into the situation with Mr. D and reviewed a note drafted by RN Jennifer Courtois.[56]PSAMF ¶ 47; DRPSAMF ¶ 47. Mr. Hanscom spoke to several of the staff members who had been on duty on March 9, 2015.[57] DSMF ¶ 40; PRDSMF ¶ 40.

         Mr. Newman testified that he was not involved in the investigation and had delegated the investigation responsibility to Ms. Yesue and Mr. Hanscom.[58] PSAMF ¶ 57; DRPSAMF ¶ 57. When asked if he had a role in the investigation, Mr. Newman stated: “No, I - I really was not there investigating, no, that's correct.”[59] PSAMF ¶ 65; DRPSAMF ¶ 65. Mr. Newman acknowledged that there were several occasions in which Ms. Schott complained to him that she did not think Ms. Yesue was impartial and that Ms. Yesue had shown favoritism toward Ms. Tardif.[60] PSAMF ¶ 58; DRPSAMF ¶ 58. Mr. Newman also acknowledged that he could have assigned someone other than Ms. Yesue to conduct the investigation. PSAMF ¶ 59; DRPSAMF ¶ 59. Mr. Newman did not give Mr. Hanscom or Ms. Yesue any guidelines by which to conduct the investigation. PSAMF ¶ 60; DRPSAMF ¶ 60. Mr. Newman could not recall whether Ms. Tardif was interviewed as part of the investigation; she was not interviewed. PSAMF ¶ 61; DRPSAMF ¶ 61. When asked who was available for clinical coverage after Ms. Tardif left on March 9, 2015, Mr. Newman said, “I don't know for sure so I'm not going to answer that. I really don't recall.” PSAMF ¶ 62; DRPSAMF ¶ 62. Mr. Newman claimed that the purported order, which Kindred alleges Ms. Schott accepted from Dr. Keiski, was “acted upon.”[61] PSAMF ¶ 63; DRPSAMF ¶ 63. Mr. Newman claimed that Ms. Schott was terminated because she admitted to taking a physician's order, that the allegation that she “transcribed” it was irrelevant, that he never heard her admit to taking the order, and that he never asked her if she admitted to taking the order.[62] PSAMF ¶ 64; DRPSAMF ¶ 64.

         Other than what Ms. Yesue discussed with Ms. Schott, Ms. Yesue's only source of information about what occurred on March 9, 2015 came from Nurse Courtois' note and Mr. D's medical record. PSAMF ¶ 48; DRPSAMF ¶ 48. Regarding Nurse Courtois' note, Ms. Yesue only “saw her piece of paper when [she] was there Wednesday . . . .” Id. Ms. Yesue did not recall speaking with Nurse Courtois.[63] Id. Ms. Yesue reviewed Mr. D's Medication Administration Record (MAR) on which a notation had been written in blue ink to “hold” the medication Zyprexa. DSMF ¶ 41; PRDSMF ¶ 41. According to Ms. Yesue, although she did not say that Ms. Schott wrote the note, nursing staff would not have used blue ink, and the handwriting looked similar to Ms. Schott's.[64] DSMF ¶ 42; PRDSMF ¶ 42. Ms. Yesue asked Ms. Schott about the allegations in Nurse Courtois' note, e.g. that Ms. Schott purportedly told Ms. Courtois that she had “taken an order from Dr. Keiski to discontinue Mr. D's medication” and that Ms. Schott had written in Mr. D's MAR to hold Mr. D's medication. PSAMF ¶ 50; DRPSAMF ¶ 50. Ms. Schott told Ms. Yesue that she did not take an order from Dr. Keiski, and she did not write in Mr. D's MAR.[65] Id. Ms. Schott relayed Mr. D's family's and Dr. Keiski's concern to staff just before she called to have Mr. D transferred to the hospital. Id. During her discussion with Ms. Yesue on March 11, 2015, Ms. Schott told her that Ms. Tardif refused to meet with Mr. D's family and had left the facility without clinical coverage, and that Ms. Schott made no medical decision to discontinue Mr. D's medications and sent Mr. D to the hospital because she believed that it to be an emergency medical situation. PSAMF ¶ 51; DRPSAMF ¶ 51. Ms. Yesue did not speak to any member of Mr. D's family about what had occurred. PSAMF ¶ 49; DRPSAMF ¶ 49.

         Ms. Yesue prepared a report and relayed the findings of the investigation to Mr. Newman by phone.[66] DSMF ¶ 43; PRDSMF ¶ 43. On March 12, 2015, Ms. Yesue and Gregg Hanscom met with Ms. Schott, with Mr. Newman participating by phone. Stip. ¶ 11; PSAMF ¶ 52; DRPSAMF ¶ 52. At the March 12, 2015 meeting, Ms. Yesue gave a PIP to Ms. Schott, which stated the results of the investigation. DSMF ¶ 44; PRDSMF ¶ 44. The March 12, 2015 PIP stated that Ms. Schott was to be discharged and gave the following reason:

Acting outside the scope of practice, as evidenced by: accepting and transcribing a physician's telephone order on to resident P.D.'s MAR (Medication Administration Record). Denying that she wrote on MAR “hold until further notice.” When asked by Mary Yesue DDCO directly if she wrote “hold until further notice, ” Pota Schott stated “no.” Pota stated she “called down to the unit and told them to ‘hold' the Zyprexa.” On examining the MAR, the statement “Hold until further notice” was printed in blue ink. When comparing the printed statement to other printed memos by Pota Schott, the font and printing style is very similar. I interviewed Lisa Howard CRMA, who was in possession of the keys and responsible for medication passes on 3/9/15 for the 3-11 shift. Lisa stated that the MAR was turned over, indicating that the resident was either discharged or in the process of being sent out of the hospital. Lisa stated that when she observed resident P.D.'s MAR she noted that his Zyprexa scheduled for 8PM on 3/9/15 and Zyprexa PRN had notation beside medication to “hold until further notice.” Lisa Howard CRMA denied writing this.
This is a clear violation of the Regulations governing Level 4 Assisted Living Maine Facilities: Section 7 (7.1.6) “No medication shall be administered or discontinued without a written order signed by a duly authorized licensed practitioner or other person licensed to prescribe medications.” Section 7 (7.2.21). Telephone orders shall be accepted only by a registered or licensed nurse or pharmacist.
I also interviewed Jennifer Courtois RN who worked 5-9PM on 3/9/15. Jennifer stated that when she came on duty she checked in with Pota Schott. Jennifer stated that P.D.'s physician had told Pota Schott over the telephone to “hold resident P.D.'s Zyprexa.” Jennifer stated that she immediately told Pota Schott that Pota was not authorized to accept physician's orders. Jennifer stated that Pota Schott asked her if “she could take care of that for her.” Jennifer states that she told Pota that she would try to reach resident P.D.'s physician and clarify order. However, resident P.D.'s physician was unavailable and Jennifer did not feel it was appropriate to ask the on call physician to clarify another physician's “order.” Resident P.D. was transferred to the hospital and admitted on 3/9/15 at 10:10PM.

Stip. ¶ 12; PSAMF ¶ 52; DRPSAMF ¶ 52. The PIP concluded that Ms. Schott improperly entered notes on Mr. D's MAR. PSAMF ¶ 52; DRPSAMF ¶ 52.

         Ms. Yesue testified that she relied on the fact that the MAR notation to “hold” the Zyprexa was written in blue ink and there was a similarity in the handwriting to notes on Ms. Schott's desk.[67] PSAMF ¶ 53; DRPSAMF ¶ 53. When questioned about whether Ms. Schott admitted to taking an order over the telephone, Ms. Yesue testified: “She didn't admit to me. She might have admitted it to me. I'm going by- this is what I used for my report, what Jennifer write in there. I might have asked her. I don't recall a conversation with Pota.”[68] PSAMF ¶ 54: DRPSAMF ¶ 54. During the meeting, Ms. Schott again denied that she had taken an order, that she had exceeded the scope of her authority, that she had discontinued medication, and that she had written in Mr. D's MAR, and she told them that she had helped a resident get appropriate help during a dangerous situation, and that the family thought their father was going to die.[69] PSAMF ¶ 55; DRPSAMF ¶ 55.

         Ms. Schott refused to sign the PIP and was informed that her employment would be terminated as of that day. Stip. ¶ 13. Mr. Schott did not bring up any concerns about Ms. Tardif at the meeting. DSMF ¶ 45; PRDSMF ¶ 45. Although Mr. Newman acknowledged that he is not a clinician and is not able to say what is clinically right or wrong, Mr. Newman believed that Ms. Schott had options aside from accepting a telephone order from a physician, including transferring the resident to the hospital earlier or obtaining a fax order.[70] DSMF ¶ 50; PRDSMF ¶ 50. Ms. Yesue and Mr. Newman immediately terminated Ms. Schott at the end of the meeting. PSAMF ¶ 56; DRPSAMF ¶ 56. Even after being told she was terminated, Ms. Schott told Ms. Yesue and Mr. Newman that the findings in the report were false.[71] Id.

         K. Mr. D's Death and Kindred Response to the Schott Termination

         After Ms. Schott's termination, Mr. D died in hospice care on March 17, 2015. DSMF ¶ 46; PRDSMF ¶ 46; PSAMF ¶ 22; DRPSAMF ¶ 22. On or around April 7, 2015, Mr. Newman met with Eleni Kowash and Edie Rossborough, two family members of other Monarch Center residents to discuss with them the reasons for Ms. Schott's termination, and, at Ms. Schott's request, the family members sent her summaries of their conversation.[72] DSMF ¶¶ 47-48; PRDSMF ¶¶ 47-48; PSAMF ¶ 66: DRPSAMF ¶ 66. According to the family members' statements, Mr. Newman told them (1) that Ms. Schott chose to act in a clinical manner when she was not licensed to do so; (2) that there were other options available to Ms. Schott and there was a clinician in the building who could have handled the situation; (3) that Ms. Schott was not forced to act in the way she did because of an emergency and the “walls were [not] going to fall down;” and (4) that the internal investigation into Plaintiff's behavior had been conducted by Mr. Newman “personally.”[73] DSMF ¶ 49; PRDSMF ¶ 49; PSAMF ¶ 67; DRPSAMF ¶ 67. According to the contemporaneous handwritten notes of the family members, Mr. Newman specifically said that Ms. Schott “acted in a clinical manner when she was not licensed to do so, ” that there “was a clinician in the building who should have handled the situation, ” that Ms. Schott “knew that there were consequences for her actions, ” and that her unlicensed acts “forced his hand” to fire her.[74] PSAMF ¶ 67; DRPSAMF ¶ 67. Upon reviewing Ms. Kowash's statement and Ms. Rossborough's statement, Mr. Newman said that both statements were consistent with his memory of how the conversations went with the family members. PSAMF ¶ 68; DRPSAMF ¶ 68. Mr. Newman acknowledged that calling 911 was the appropriate thing to do when the facility could not meet the clinical needs of a resident, and was aware that Mr. D passed away some time after his discharge from the Monarch Center. PSAMF ¶ 69; DRPSAMF ¶ 69. Although Mr. Newman claims he was unaware of any misconduct by Mr. Hanscom, Ms. Tardif claims that Mr. Hanscom had sexually inappropriate communications with her; however, Ms. Tardif also testified that she did not report these communications to Mr. Newman or anyone else at Kindred.[75] PSAMF ¶ 71; DRPSAMF ¶ 71.

         After the position was held by an interim Executive Director for several months, Ms. Tardif was promoted to be the Executive Director of the Monarch Center in June 2015.[76] PSAMF ¶ 70; DRPSAMF ¶ 70. Jennifer Courtois was promoted to Director of Nursing when Ms. Tardif vacated the position to assume Ms. Schott's former position as Executive Director.[77] PSAMF ¶ 72; DRPSAMF ¶ 72.

         L. Potitsa Schott's Maine Human Rights Commission Charge

         In May 2015, Ms. Schott filed a sworn charge of discrimination with the MHRC, alleging whistleblower retaliation among other allegations. Stip. ¶ 14. Ms. Schott believed that the accusations against her were retaliation for her bringing to light a lot of complaints regarding, among other things, the care and safety of the residents, especially relating to Mr. D.[78] PSAMF ¶ 73; DRPSAMF ¶ 73. In her termination meeting, Ms. Schott was motivated to voice her objections to the accusations against her: she denied taking an order or writing in Mr. D's MAR and objected to Kindred's shifting of the blame from Ms. Tardif onto her.[79] Id.


         A. The Kindred Defendants' Position

         1. Whistleblower Retaliation

         The Kindred Defendants contend that Ms. Schott's whistleblower retaliation claim must fail because none of her complaints is protected by the MHRA or the MWPA, and therefore she did not engage in protected activity. Defs.' Mot. at 9. The Kindred Defendants say that Ms. Schott has identified three different acts that she believes qualify as protected activity under both statutes: (1) health and safety concerns regarding an elderly resident with dementia who was physically assaulting Monarch Center staff and was in rapid decline, (2) allegations of gross negligence against Laura Tardif who refused to respond to the crisis surrounding that same resident, and (3) opposition to the allegedly sham investigation by Mary Yesue and Brian Newman, which not only covered up for Ms. Tardif, but also falsely accused Ms. Schott of violating state regulations, leading to her termination. Id. at 10.

         The Kindred Defendants, however, argue that neither of the first two complaints fits within the MHRA provisions, 26 M.R.S. § 833(1)(A) (reporting violations of law or rules), (B) (reporting a condition or practice that would put at risk the health and safety of an individual), or (E) (reporting to an appropriate licensing agency an act or omission that deviates from the applicable standard of care). Id. at 10-13. They also say that Ms. Schott did not oppose the Kindred ...

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