United States District Court, D. Maine
ORDER ON MOTION FOR SUMMARY JUDGMENT
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
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.
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.
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,  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).
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).
November 2, 2017, Ms. Schott filed a sur-reply in opposition
to the Kindred Defendants' motion for summary
judgment. 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.
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.
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.'
STATEMENT OF FACTS
The Parties and Others
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.
Potitsa Schott: Job Duties as Executive Director
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. 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. 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.
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. PSAMF ¶ 5; DRPSAMF
¶ 5. Among other duties, the Director of Nursing is
[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
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. 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.
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. 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. PSAMF ¶
10; DRPSAMF ¶ 10. In 2014 and early 2015, Ms. Tardif
told several Monarch Center employees that Ms. Schott would
soon be fired. PSAMF ¶ 11; DRPSAMF ¶ 11.
The March 4, 2015 Performance Improvement Plan
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. 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.” 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. PSAMF ¶ 15; DRPSAMF ¶ 15.
Potitsa Schott's Reports to Management About Laura
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. PSAMF ¶ 16; DRPSAMF ¶ 16.
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. 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
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. PSAMF ¶ 18; DRPSAMF ¶ 18.
Schott also reported that she had contacted Dr. Keiski and
the family member to discuss Ms. Tardif's
dishonesty. PSAMF ¶ 23; DRPSAMF ¶ 23.
both issues, Mr. Newman and Mr. Hanscom said that they
“didn't want to hear anything about
it.” PSAMF ¶ 18; DRPSAMF ¶ 18.
Monarch Center Resident PD and the Weekend of March 7-8,
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. 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. Id. Ms. Schott asked RN Peggy
Blood, who was on call that weekend, to go into the facility
to evaluate PD. Stip. ¶ 6.
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. 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. DSMF ¶ 4; PRDSMF ¶
March 9, 2015: Laura Tardif Become Ill. and Goes
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.
Tardif informed Ms. Schott that she was going home due to her
illness.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. DSMF ¶ 7; PRDSMF ¶ 7. Ms.
Tardif said “she was not going to deal with this
now.” 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. 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. 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.
March 9, 2015: Potitsa Schott and Mr. D
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. 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. 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.
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. 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. 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.” 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.
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. 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. DSMF ¶ 22; PRDSMF ¶ 22.
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.
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.”DSMF ¶ 51; PRDSMF ¶
Keiski had known Ms. Schott for two-and-one-half years, and
knew Ms. Schott was not a licensed or registered
nurse. 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. 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. 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.
speaking with Dr. Keiski, Ms. Schott called down to Mr.
D's unit from her office. 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. 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. PSAMF ¶ 34; DRPSAMF ¶ 34. Ms.
Schott felt Mr. D's life was in danger because Ms. Tardif
left the community unattended and without
coverage.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.
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.
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. 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. PSAMF ¶ 41; DRPSAMF
¶ 41. Ms. Schott called Ms. Yesue to report what had
transpired and to express her concerns about Ms. Tardif's
actions. 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.
Events on March 9, 2015 After Mr. D was Transferred
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. 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
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
DSMF ¶ 31; PRDSMF ¶ 31.
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.
After March 9, 2015 Leading to Potitsa Schott's
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. 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.”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.
Wednesday, March 11, 2015, Dr. Keiski came to Monarch to make
her rounds. 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. 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.
Kindred's Investigation and Termination of Potitsa
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. 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.PSAMF ¶
47; DRPSAMF ¶ 47. Mr. Hanscom spoke to several of the
staff members who had been on duty on March 9,
2015. DSMF ¶ 40; PRDSMF ¶ 40.
Newman testified that he was not involved in the
investigation and had delegated the investigation
responsibility to Ms. Yesue and Mr. Hanscom. 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.” 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. 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.” 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. PSAMF ¶ 64; DRPSAMF ¶ 64.
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. 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. 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. 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.
Yesue prepared a report and relayed the findings of the
investigation to Mr. Newman by phone. 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
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
Stip. ¶ 12; PSAMF ¶ 52; DRPSAMF ¶ 52.
The PIP concluded that Ms. Schott improperly entered notes on
Mr. D's MAR. PSAMF ¶ 52; DRPSAMF ¶ 52.
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. 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.” 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. PSAMF ¶ 55; DRPSAMF ¶ 55.
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. 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
Mr. D's Death and Kindred Response to the Schott
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. 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.” 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. 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. PSAMF ¶
71; DRPSAMF ¶ 71.
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. 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. PSAMF ¶ 72; DRPSAMF ¶ 72.
Potitsa Schott's Maine Human Rights Commission
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. 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
THE POSITIONS OF THE PARTIES
The Kindred Defendants' Position
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.
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