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Pushard v. Riverview Psychiatric Center

Superior Court of Maine, Kennebec

May 7, 2019






          William R. Stokes, Justice Maine Superior Court

          This matter is before the court on the Defendant's Motion for Summary Judgment.


         This case involves the alleged retaliation by the Riverview Psychiatric Center ("Riverview" or "Defendant"), against its former employee Roland Pushard ("Pushard" or "Plaintiff"). After Pushard made a variety of complaints to his supervisor at Riverview, it allegedly engaged in an adverse action against Pushard by terminating him. Pushard brought an administrative action before the Maine Human Rights Commission against Riverview. The action was dismissed after the Commission issued Pushard a right to sue letter on May 11, 2017. Subsequently, Pushard filed a Complaint with this court on June 28, 2017, alleging a violation of the Whistleblowers' Protection Act ("WPA"). On February 1, 2018, the Complaint was amended over Riverview's objection to add a second count of unpaid wages. Riverview moved to dismiss Count II, arguing that it was barred by sovereign immunity and that Pushard failed to exhaust his administrative remedies in seeking payment of the wages allegedly due to him. On June 6, 2018, the court agreed with Riverview and dismissed Count II of the Amended Complaint. Riverview now moves for summary judgment on the remaining Count.

          The following facts are taken from the parties' Statement of Material Facts ("SMF") and are undisputed unless otherwise noted.

         Pushard was employed with Riverview as a nurse from October 2006 through October 2015. (Defendant's SMF ("DSMF") ¶¶ 1-2.) Pushard became the Director of Nursing ("DON") around June 2014. (DSMF ¶ 10.) His supervisor was Jay Harper ("Harper"), the Superintendent of Riverview. (DSMF ¶¶ 11-12.) It has been publicly known for years that Riverview has been historically understaffed. (DSMF ¶¶ 14-15.) Riverview was, and still is, under a consent decree with the State regarding its management and staffing. (Plaintiff's Additional SMF ("PASMF") ¶ 136.) Pushard and Harper had discussions about this understaffing and disagreed about whether mental health workers or acuity specialists were more appropriate to hire.[1] (DSMF ¶¶ 17-18.) Harper and Pushard also disputed the appropriate role of nurse educators; Pushard wanted them to be more hands-on and "on the floor" with the patients as opposed to a more administrative setting. (DSMF ¶ 20, PASMF ¶ 142.) Pushard was outspoken about staffing issues. (PASMF ¶ 260.)

         Colleen Cutler was the Assistant Director of Nursing ("ADON") during this time and held opinions similar to Pushard's regarding staffing and the role of nurse educators that she expressed to Harper. (DSMF ¶ 24, PASMF ¶ 150.) Around November 2014, during Cutler's time as ADON, Pushard believed that Harper treated her disrespectfully and took her office from her. (DSMF ¶¶ 25-26.) Pushard told Harper that that he thought the way he was treating the ADON was wrong. (DSMF ¶¶ 28-29.) Pushard never specifically said that he thought these actions were illegal, but he did describe them as "retaliatory" to Harper. (DSMF ¶ 30, PASMF ¶ 30.) Ultimately, a few months after he began complaining about her treatment to Harper, Pushard moved the ADON into his office, and although Harper did not approve, he did not move her out of Pushard's office. (DSMF ¶¶ 32-35.)

         In early 2015, Pushard reported to Harper that someone had told him that Nurse B may have sent paperwork outside of Riverview concerning a patient. (DSMF ¶¶ 37-38.) Pushard did not know for sure if anything had been sent, or what might have been sent, but was concerned that it could have been a HIP A A violation. (DSMF ¶¶ 39-40.) After receiving Pushard's report, Harper found out what information Nurse B sent outside Riverview and had Risk Management review it. (DSMF ¶ 46.) Risk Management did not find that it was a HIPAA violation. (DSMF ¶ 46.) Pushard and Harper never spoke about the transmittal of information after Pushard reported it. (DSMF ¶ 43.)

         Pushard was aware that Riverview had policies mandating reports of any out-of-the-ordinary incidents and allegations of patient mistreatment. (DSMF ¶¶ 47, 51.) These policies, in their essence, describe that anything out of the ordinary, or that could potentially be a harm to patients, whether by affirmative action or omission of action, were to be reported through an Incident Report. A determination would then be made as to whether an investigation was warranted.[2] (DSMF ¶¶ 49-52.) The patient mistreatment policy highlighted that abuse or neglect could occur unintentionally, and that abuse or neglect could occur even when the patient suffered no harm. (DSMF ¶ 53.) All employees were subject to the policies which required them to immediately report "abuse, neglect and exploitation, which they have witnessed or have knowledge of" to the appropriate person on duty. (DSMF ¶ 55.)

         In March or April 2015, Pushard heard rumors that Nurse A was tired, having difficulty performing her job, and may have been diverting patients' medication. (DSMF ¶ 60.) Pushard was aware that Nurse A slept in her car on breaks. (PASMF ¶ 193.) Pushard did not report these rumors to Harper because he thought they were unfounded as they originated with a nurse who didn't like Nurse A, but he did ask the ADON to look into them. (DSMF ¶ 62.) Pushard states that he checked with the pharmacy to see if any drugs were missing, but none were. (PASMF ¶ 184.) The ADON reported this same information to him. (DSMF ¶ 63.) Pushard and the ADON thought Nurse A was working too many hours and was tired, so he took her off the mandated overtime list. (DSMF ¶ 65.) He also gave her sick leave and told her not to be in the medication room. (PASMF ¶ 65.) Sometime between February and April 2015 Pushard became aware that Nurse A had been disciplined by the Board of Nursing in the past, but he did not know for what. (SMF[3] ¶ 69.) Pushard did not report any of these allegations against Nurse A to anyone listed in the policies addressing out-of-the-ordinary incidents or patient mistreatment. (DSMF ¶ 67.)

         In late May 2015, a psychiatrist and nurse supervisor at Riverview submitted written incident reports regarding Nurse A. (DSMF ¶ 72.) Within a few days of this report, Pushard emailed Nurse A telling her not to take any overtime as she had been tired, and for the same reason to refrain from giving patients medication. (DSMF ¶¶ 73-74.) On May 28, 2015, Nurse A was placed on administrative leave pending investigation. (DSMF ¶ 75.) Ultimately, the allegation against Nurse A for diverting medications was not substantiated, but the allegation of inattentiveness and/or sleeping on duty was substantiated and she was terminated from Riverview. (DSMF ¶¶ 121-23.)

         Pushard and the ADON were placed on paid administrative leave on June 8, 2015, pending an investigation of allegations that they had prior knowledge of the concerns about Nurse A, failed to respond appropriately, and failed to appropriately report those concerns. (DSMF ¶¶ 77-78.) As part of its investigation, Human Resources reviewed emails and interviewed employees who said they reported concerns to Pushard as early as January 2015. (DSMF ¶¶ 79-88, 94.) When Human Resources interviewed Pushard, he said he did not remember if anyone had reported to him that Nurse A seemed impaired while on duty or suggested any other course of action than what he took.[4] (DSMF ¶¶ 82, 84.) The investigators did not find Pushard's failure to remember reports from employees credible.[5] DSMF ¶ 108. The report concluded that Pushard failed to appropriately report and act on the safety concerns reported to him, including failing to create a plan to monitor the safety issue but instead impermissibly relied on subordinate staff, the ADON, to do it. (DSMF ¶ 109.)

          Shortly after Pushard was put on administrative leave, on June 12, 2015, Harper initiated a Root Cause Analysis ("RCA"). (DSMF ¶ 96.) The purpose of an RCA is to look at barriers to reporting information within Riverview, whether nursing leadership promoted any of those barriers, and whether any information was covered up. (DSMF ¶ 96.) The RCA was completed in July 2015. (DSMF ¶ 95.) On August 26, 2015, after reviewing the investigative report and the RCA, then-Deputy Commissioner Ricker Hamilton ("Hamilton") recommended that Pushard be terminated. (DSMF/DSRMF ¶¶ 110-11.) Throughout Pushard's employment and investigation, Harper had weekly meetings with Hamilton and Pushard would often come up as a topic at these meetings. (PASMF¶¶ 132-33.)

         Pushard attended a "Loudermill" hearing with his attorney on September 17, 2015, and a separate director, Barry MacMillan, heard the information presented by Pushard and his attorney and reviewed it alongside the investigative report prepared by Human Resources.[6] (DSMF ¶¶ 113-14.) On October 9, 2015, MacMillan informed Pushard that she deemed his termination just and appropriate and his employment was terminated the same day. (DSMF ¶¶ 115-16.) Pushard became employed with Maine General Hospital as a nurse in November 2015 ...

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