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Waugh v. Genesis Healthcare LLC

Superior Court of Maine, Cumberland

December 18, 2018



          A.M. Horton, Justice.

         Before the Court is Defendants' motion for summary judgment. The parties have fully briefed the issue, and this motion is in order for decision. For the following reasons, Defendants' motion is granted.

         I. Background

         The following facts arc drawn from the parties' statements of material facts and are not in dispute.[1] Plaintiff is an experienced nurse, having been involved in health care since high school. (Pl's S.M.F. ¶ 1.) She began as a certified nursing assistant (CNA) before obtaining her nursing degree and license in 2002. (Id., 2.) She worked for many years as a nurse in long-term care before becoming a traveling nurse working temporary assignments at different health care facilities. (Id. ¶ 3.) She worked as a Registered Nurse for a staffing agency, Core Medical Group ("Core"), from April 2015 through August 2016. (Defs.' S.M.F. ¶ 5.) In January 2016, Core placed Plaintiff on assignment at Springbrook Center ("Springbrook") in Westbrook, Maine, from January 25, 2016 through August 6, 2016. (Id. ¶¶ 6-7.)

         Following the Fourth of July weekend in 2016, Plaintiff sent an email to her handler at Core reporting "a pretty unsafe situation" at Springbrook. (Pl's S.M.F. ¶ 55.) Her handler in turn emailed Catherine Hesenius of Genesis Healthcare ("Genesis")[2] requesting that someone look into Plaintiffs reports of feeling unsafe. (Id. ¶ 56.)[3] Plaintiff also reported her concerns to Nurse Deborah Bostic, who reported to Hesenius that she followed up with Plaintiff and there may have been a communication breakdown. (Id. ¶¶ 60-61; Defs.' Reply to Pl's S.M.F. ¶¶ 60-61; Bostic Dep. Ex. 1.)

         On the night of July 29, 2016, while Plaintiff was on duty, a Springbook resident persistently rang his call bell. (Pl's S.M.F. ¶¶ 64-65; Defs.' S.M.F. ¶ 9.) On July 30, the resident complained to Registered Nurse Molly McIntire that on July 29, Plaintiff had removed the resident's call bell.[4] (Defs.' S.M.F. ¶ 9.) Mclntire's report, which Plaintiff concedes is an accurate report of the resident's complaint, states:

Resident states nurse "Kathy" came in and "ripped the call bell off my shirt" states she placed bell out of reach stating "how do you like that" Resident states he was told he could no longer use the call bell as reported to him, he was using too much. Resident denied to writer he had any increase needs at this time then typically. He states the nurse told him staff would check on him Q30 mins.

(Id. ¶¶ 10-11.) In a later interview, the resident stated that Plaintiff also "coiled [the call bell] up and threw it behind me." (Pl's S.M.F. ¶ 87.) In another interview, the resident asserted that a CNA put the call bell back in his reach and said: "Don't tell them I put it back." (Id. ¶ 90.)

         Defendants investigated the incident, including the involvement of Plaintiff and Shaun Riley, the supervising nurse on duty that evening who spoke with the resident after his interaction with Plaintiff. (Defs.' S.M.F. ¶ 12.) Riley wrote in her statement, "Pt. had his call bell in hand when I arrived." (Pl's S.M.F. ¶ 92.) Statements were also taken from two CNAs, Linda Richard and Isabelle Grimaldi, who were on duty with Plaintiff the evening of July 29. (Defs.' S.M.F. ¶ 13.) Richard confirmed that the resident rang his bell "quite a bit" that evening, but did not recall that he was ever without his call bell. (Id. ¶ 14.)[5] Grimaldi testified that Riley spoke to the resident about his use of his call bell. (Id. ¶¶ 17-20.) Grimaldi stated she was not aware that the resident was ever without his call bell that evening, but the resident told Grimaldi that somebody had taken away his call bell. (Id. ¶¶ 22-23.) Grimaldi also explained that the resident at times would inadvertently unplug the call bell and that "the bell at one time was unplugged from the wall and the patient had the other end." (Pl's S.M.F. ¶¶ 97-98.)

         On August 1, 2016, Director of Nursing Deborah Bostic and Clinical Quality Specialist Sharon Emerson decided not to allow Plaintiff to continue working during the investigation because, among other things, she had been accused of violating Genesis's policy requiring residents to have call bells at all times. (Defs.' S.M.F. ¶ 27.) That same day, Emerson called Core and stated that there had been an allegation against Plaintiff, that Springbrook was investigating, and that Plaintiff should not return to work until the investigation had been completed. (Id.) Bostic and Emerson interviewed Plaintiff on August 1 and informed her that she was suspended pending the outcome of Springbrook's investigation. (Id. ¶ 28.)

         After the August 1 meeting, Plaintiff called her contact at Core, Ted Maravelias, who told her that he knew nothing about the situation, that "these things take time," and that she should let Springbrook perform its investigation. (Id. ¶ 30.) Following its investigation, Springbrook decided to terminate Plaintiff. (Id. ¶ 35.) On August 3, 2016, Emerson and Bostic informed Plaintiff her services were no longer needed and notified Catherine Hesenius, of the decision. (Id. ¶ 38.) After Plaintiff informed Maravelias of that conversation, Maravelias told Plaintiff that his manager would not allow him to give Plaintiff any more assignments if she had been terminated from her contract. (Id. ¶¶ 39-40.)

         Bostic and Emerson recommended to Denise Williams, the Springbrook Center-Genesis Healthcare Human Resources Director, that Plaintiff be terminated. (Pl's S.M.F. ¶ 107; Defs.' Reply to Pl's S.M.F. ¶ 107.) On August 3, Williams emailed Stephanie Burrows, Genesis's Regional Human Resource Manager, to request approval to terminate Plaintiffs contract. (Pl's S.M.F. ¶ 108.) Burrows responded, "from what I could read, it sounds like Kathy is saying she did not take the call bell away and knows she cannot do that." (Id. ¶ 109.) Williams answered, "Kathy denies taking the call bell away, but this is not supported by CNA and resident's interviews." (Id. ¶ 110.) Burrows responded, "if the investigation has been completed and Deb and Sharon are confident the allegation of abuse is founded, then yes, I support the termination." (Id. ¶ 116.) Williams answered, "Thank you. Yes, a five day follow up with the State is being done stating the allegation was founded." (Id. ¶ 117.) On August 5, Bostic submitted the five-day follow up report to DHHS. (Id. ¶ 153.) In this report, under the "Conclusions" headings, Bostic checked off the "Allegation Substantiated" and "Allegation of misconduct Substantiated" boxes. (Id. ¶¶135, 136.)

         Bostic also completed a form that was sent to Core, stating the results of the investigation and alerting Core that it should contact the Board of Nursing. (Defs.' S.M.F. ¶ 42.) The document, entitled "Travel Employee Performance Counsel Notice," states: "pt alleges neglect and informed DHHS" and "It is up to Core Medical to report to BORN." (Id. ¶ 43.) She attached the five-day follow up DHHS report to this Notice. (Pl's S.M.F. ¶ 129; Def.'s Reply to Pl's S.M.F. ¶ 129.)

         On August 19, 2016, Core filed a complaint with the Board of Nursing against Plaintiff. (Pl's S.M.F. ¶ 145.) Core's complaint states, "The facility conducted an investigation and concluded that [Plaintiff] was neglectful and violated the patient's rights by taking the bell away." (Id. ¶ 147.) Core attached the Travel Employee Performance Counsel Notice to the complaint. (Id. ¶ 148.) Springbrook also sent a copy of its investigation materials to the Board of Nursing, at the Board's request, on August 31. (Defs.' S.M.F. ¶ 47.) The Board conducted an inquiry, and on December 13, 2016, Plaintiff was notified that no violation of the law regulating the practice of nursing had been found, resulting in no impact to Plaintiffs nursing license. (Id. ¶ 48.)

         At her deposition, Bostic testified that her notes of her investigation did not provide that any health care worker at Springbrook was able to corroborate or verify that Plaintiff took the call bell. (Pl's S.M.F. ¶ 101.) She further testified that the phrase "Kathy denies taking the call bell away, but this is not supported by the CNAs" is not an accurate statement.[6] (Id. ¶ 115). She also testified that the allegation of Plaintiff taking the resident's call bell away "was not substantiated by anybody working that night." (Id. ¶ 132.) Williams similarly acknowledged at her deposition that Richard's and Grimaldi's statements do not include a statement about Plaintiff taking the call bell from the resident. (Id. ¶¶ 103-04; Defs.' Reply to Pl's S.M.F. ¶¶ 103-04.)

          Plaintiff filed her Complaint with this Court on September 5, 2017, alleging claims for defamation (Count I), slander/libel per se (Count II), and interference with advantageous economic ...

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