Gagon v. Woodlands Senior Living of Brewer, LLC

• Court: Superior Court of Maine
• Decided: September 23, 2016
• Docket: PENbcd-cv-15-29
• Status: Unpublished

Opinion

·: --··· ··· :· ······· . • •j 1•-.. -·--· - · ····

STATE OF MAINE BUSINESS AND CONSU1v!ER DOCKET PENOBSCOTT, ss. DOCKET NO. BCD - CV - 15 - 29 J

SANDRA GAGNON, ) ) Plaintiff, ) ORDER ON DEFENDANT'S ..... ____......... .. ­ ..... v; .... .:.. ·- -···· - -.. :....:_: ·.. ·:. :_.....:...... ... :.:.:.:..... _ ··· - :) ... .. '·MOTION-FOR-SUMMARY.:. .....· · ...... ·-·-- ·...... ) JUDGMENT WOODLANDS SENIOR LIVING ) OF BREWER, LLC, ) ) Defendant. )

I. Background

A. Improper Administration of Medication

Plaintiff Gagnon was hired by Defendant Woodlands Senio1· Living of

Brewer, LLC ("Woodlands'') as a Certified Residential Medication Aide

("CRMA") on November 26, 2012. Supp. SMF 91<[ 3 & 4. During her employrnent, ~

Gagnon received regulal' pay raises. Add. S:MF 9I 3. In January 2014, Gagnon's

supervisor, Chelsea Hodgson, completed a performance evaluation for Gagnon

noting that Gagnon's performance was good in all respects. Add. S.MF 9I 5. The

parties agree that the residents seemed to like Gagnon. Add. SMF

employment was terminated on May 5, 2014. Supp. SMF ':[ 34. During her

employment, Gagnon's job responsibilities included administering medications

to Woodlands' residents and documenting the care received. Supp. SlVIF 915.

During her employment, Gagnon was trained in Woodlands' policies and

procedures regarding administration of medications including Woodlands'

policy requiring CRMAs to perform three checks prior to administering

medications and Woodlands electronic medication adrninistrati.on records

1 ... I • • """ 't ' . ......... .. ... . ---·--. ~ -­

("EMAR"). Supp. SMF <[q[ 61 7 & 8. Gagnon also received training on the

Department 0£ Health and Human Services' ("DHHS") Eight Rights of Safe

Medication Administration. Supp. SMF <[ 9.

On April 1, 2013, Gagnon received a medication error counseling session

fm having multiple errol's in the month of February 2013. Supp. SMF '][ 10. _,,,._,._,.••••-- •- - • - • - · -·• ,_,,.,,,,,_ _ ",,, • , ... u,o,_,_,,. . · - •, _, , ,...., • ,,.,,.. "• ., ••• • ' ,,., • ',.,- • .. ,,.,,• •,_, •:.. ':, ,"_, !-, : :_ •,:,::,: •:. •••- .. ,:,..._.•,,: ,;:::,•:- • :. ••- ,"..,..,,, ,'... , .-,.- .,,,,,,,, •• • • • ·-·-·-·''" '

Gagnon's errol'S were a result of Gagnon's failure to correctly document the

administration 0£ med.ication.s. Supp. SMF qr 11. On April 10, 2014, Gagnon

received a medication error warning signed by Woodlands' Executive Di.rector,

Benjamin Smith, for administel'in.g the incorrect vitamins to a resident on

numerous dates between Mal'ch 5 and April 9, 2014. Supp. Siv1F cir 13. The

warning stated that any additional medication errors by Gagnon would result in

her removal from medicc1 tion passing du ties and I or future disciplinary action up

to and including termination. Supp. SMF <[ 16. Gcignon understood the steps she

would need to take in order to avoid similar mistakes in the future. Supp. SMF '[

15.

On April 29, 2014, Gagnon administered a blood pressure medication

(Metroprolol Tartate) to a tesident in an amount that was fom: times the amount

prescribed. Supp. SMF

30, 2014. Supp. Siv1F

that Gagnon was the staff member responsible. Supp. SMF

That sarne day, Hodgson reported the incident to Smith. Supp. SMF cir 21.

Smitll left for vacation on April 30, 2014 and did not return unti.l May 51

2014. Supp. SMF 91. 22. There is dispute as to whether Hodgson knew that the

medication mistake was made by Gagnon on April 30 or May 1, 2014. There is

further dispute concerning whether Srnlth was in toucb with Hodgson during his

2 ------··--·· ···-··-· -... .... I ... ........ . . •· ·•--·• • •

vacation, on May 1, 2014 and whethel' Hodgson and Smith discussed a plan to

remove Gagnon from medication passi.n.g duties. Supp. SMF <[123 - 27, Opp.

SMF 9[<[ 23 - 27. The parties also dispute whether removing Gagnon from

medication passing duties was a temporary determination made by Hodgson

and another supervisor, Nicole Matson, pending Smith's return, and whether -· - ----···--··.---------- ........ ·:.!":... :..... : •. ~- ·..:.._ ...---····:.: __•••: : ..:•. :.··-- •..:...:•. ::....:..:~.··:: ..... :.. ··::......._ :...:_·._, • .:..:.:. ·:. ··.:..... '.'.'":. :.:. :::.. ·­ .:._ .... ......._._,.,., ...

Gagnon's removal from medication passing was meant to be for a set period of

time. Id.

Smith returned to work on May 5, 201 1:L Supp. SMF 'll: 28. Woodlands

contends that Smith performed an investigation of the incident at that time.

Supp. SMF 'IT 28. Gagnon contends that Smith was already aware of the incident

and had agreed to the disciplinary action of removing Gagnon from medication

pc1ssing duties £or two weeks. Opp. S!vIF

confirmed Gagnon's mistake in administration of medication1 found that the

employee on the second shift made the same mistake on April 30, 2014, but that

the employee who worked the first shift on April 30, 2014 did not make the same

mistake. Supp. SM.F <[ 30. Woodlands contends that; after Smith's investigation,

Smith reviewed Gagnon's persormel records and decided to terminate her

employment based upon the warning .issued nineteen dciys prior and the

medication incident on April 29, 2014. Supp. S:MF 'If 31. Gagnon alleges that the

medication administration errors were offered merely as a pretext for the

termination of Gagnon's employment. Opp. SMF 'I[ 31. The other employee who

made the same medication administration mistake was issued a warning. Supp.

SMF <[ 32. Woodfonds alleges that the differing treatment was based upon the

fact that the other employee had not previously been issued a warning where

Gagnon had been. Supp. SMF

3 •• j I ... ····-··-· ·- .

is evidence that Gagnon was fired for making reports of illegal and unsafe

conditions rather than for the improper administration of medication. Opp. SMF

CJ[ 32.

Smith prepared a notice terminating Gagnon's employment on May 5,

2015. Supp. S1v1F 9[ 33. Smith provided Gagnon with the notice when she ai-rived _ , - --·- h , 0 ·-+l•I ·-···-... ·- 0 0. 0 •• - 0000• 0 0 ••...._, - I---· · ·•.. . 0 ~ .. -• 0 0 . . . : .... : ••• !...::.~.:..:,','_,.. ':_ -- ·. ',,;:, ··:.. i. ·:~ :..:... :.:·':..-, ...,__:,,:M·0:0,000H: .:... ·.:.. 0.:...:. ·-· .... ­

for work that day. Supp. SMF 9I 34. The parties agree that Smith was the sole

decision maker wi.th respecl to the termination of Gagnon's employment. Supp.

SMF 'IT 35.

B. Reports

Woodfands care policy 1·equires employees to document issues with

resident care and deviations from the standard of care and to discuss these issues

with other employees during that shift. Resp. to Add. S:MF

Woodlands requires employees to report issues with resident care and deviations

from the standard of care to the employee's supervisor, the Adult Protective

Services ("APS") 1 DHHS Licensing and the DHHS Ombudsman. Add. SMF 'l[ 22.

Gagnon asserts that she wih1essed situations where residents were neglected and

not provided with the level of care to which they were entitled, thereby

endangering their health and safety. Add. SMF 1'[ 36 -38.

Gagnon reported issues regarding residents orally and in notes written in

the shift reports. Add. SMF CU 42. Hodgson told Gagnon to write her concerns in

shift reports so that everybody would be aware of them. Add. SMF <[ 44. I i !i' Gagnon' s reports ate as follows. i I I A few montl1s prior to the termination of Gagnon's employment1 Gagnon

made an oral report to Hodgson concerning a resident with penis cancel' that she I i fotmd soaked in urine or covered in feces. Add. SMF 9149. Gagnon asserts that it Ii 4 I .I • 1 :·· ..···· · ··· ·· - ·· ·· ····

was the role of the pernonal care assistants ("PCA'"s) to keep the resident dry

and clean. Add. SMF

Hodgson, and further asserts that many CRMA's and PCA's had documented

the care of this resident and that Woodlands was aware of this particular

resident's care issues. Resp. to Add. SNIF 'Il 49. Hodgson recalls only that Gagnon -.. ·-·--·····- - .-...... ...:.....:.._,,:.....:__ :, : ,, ,, _,:;.__ ·.:...::.,- ........ :...... :.; ..:.:,.;... ·:.._ _.:... ..~·. _...:.... ~ ... :. ·. :··.:.:·. -... :.. ":,_; _ -~ -·-~ ~--. :·..... ·. ~·:....:...:. .....· .. ··: ·.. ' \ : .· . ·- - . . -··-·- ·...... .... ­ had reported to her that the resident was incontinent when Gagnon went to do a

dressing change. Add. S.MF !JI 5'1. Smith is not aware of a report to APS regmding

any such incident. Add. SMF 9f 53.

Contractors were hired to bring the Woodlands facility into compliance

with Rccessible bathrooms. Add . SMF <[ 56 . Residents were not moved during the

approximately one to one and a hRlf days that it took to do the work. Add. SMF

'[ 56. Residents' families were informed of the construction. Resp. to Add. SMF <[

56. A family member of a resident complained to Gagnon that the contractor was

gelting dust and grease on the resident's belongings. Add. S1v1F

brought the complaint to the attention of Smith. Add. SMF 'l[ 58. Smith

acknowledges that Gagnon brought this complaint to his attention. Resp. to Add.

SMF <[ 59.

On April 15, 2014, Gagnon noticed and documented that R resident had

"severe redness" on her right side. Add. SMF 9[ 60. Gagnon describes the affected

area as looking like it had a third degree burn . Add. S:ME Cjf 60. Gagnon was the

CRMA for this resident for her entire stay. Add. SMF

this was the first time that she hRd seen the resklent's skin in this condition. Add.

SMF 'l[q[ 61, 63. Woodlands asserts that the resident's skin condition was well

documented in the residents care notes as early as March 2013. Resp. to Add.

SMF

5 .... ···1 .--·-··--- -·-····· . • • . ••t , •••..• •••• ·- ••••••

reported the rash to Drost and mentioned the rash again dt1ring shift change

when Smith was present. Add. SMF

resident. Add. SMF 9[ 65. Drost was unable to check the resident during her shift.

Resp. to Add. SMF <[ 66. The next day, Gagnon checked the resident and alleges

that not only was the rash worse but there were untreated sores on the resident's •• ··-··-· ... -:._ ·:...,. ·-· ····-......... - ......·.~ • :_ ..... •-:_. •...~ ••.: ... .: •.....:.. .·; : .... : .: ••• _ _; ·.:..... ··.:... :~ -:.:•• 7-. : .. ·::... •• :.. • .: ~::· ··::.:•••• : -:_·::.;;.. :_,:.;.....;,, ; ;.:__ .... - · ••••• ·-·· ·-- .. ••• · - · · .

left side. Add. SMF '1167. Gagnon alleges that she reported the rash and sores to

LPN Simpson and Hodgson. Add. SMF 9I 67. Woodlands denies any allegations

that sores were reported. Resp. to Add. SMF 9[ 67. No report of the sores was

made to APS. Add. SMF <[ 72.

Gagnon reported to Drost that a staff member gave an insulin injection to

a resident in the dining room. Add. SMF 9! 76; Resp. to Add. SMF q[ 76. The

Woodlands staff is trained not to give medications in public where others can see

in order· to safeguard the privacy of the resident. Add. SMF 9l 75. The parties

dispule whether there was one report or multiple reports and whether the

report(s) was/ were made in April or May of 2014. Add. SMF qr 76; Resp. to Add.

SMF

27, 2014, and then again on May 4, 2014, after observing that insulin was still

being ad1ninistered in the dining room. Add. SMF 91176 1 78. Woodlands asserts

that the one and only report regarding insulin being administered in the dining

room was on May 4, 2014, to Drost. Resp. to SMF <[ 78. Drost informed the staff

member who had given the insulin in the dining room that it was not

appropriate. Add. SMF 181.

Gagnon alleges that she made reports about residents not being fed on

multiple occasions. Add. SMF

vvib,essed a resident receive 21.n insulin shot in the dining room, Gagnon alleges

6 ....... :. . • n, • • : .. ,;_ ;:•• • • - : ••••• • · - - •• • I ••

that she witnessed a different resident not being fed dinner. Add. SMF J 85.

Gagnon alleges that the resident l1ad a norovirus and was unable to attend

dinner and that when the resident was well enough to eat she was not given any

food and there was no food i,vailable for her. Add. SMF 'jJ: 86. Gagnon contends

that she reported th~s inc~de1:t. t?_Drost. Add. SMF 9188. Woodlands denies that - -- - - - - •- •• - • •1, ·••-• - - • • .. - - ··· - _ _ .. ••O•.. ,H..- ..; - - · - - •• · - · · ..... , _ ,_ - · · · - - -· · - 0 0 0 0 -0 o - -H-• ~ , · ~ , - •I ._.., _ O O oo ·-••• •, o - • • ••- • .. · - .. - - o -·- 0' · -· · - - .. _ _ .. 0 ... - - · _ .. , OoO

any report was made and further notes that Gagnon did not include any such

complaint in the report. Resp. to Add. AMF !Jf 9186, 88.

Gagnon alleges that on May 4, 20141 she was talking with Drost about the

administration of insulin in the dining morn and the unfed resident1 and Gagnon

told Drost that she intendedto report these incidents to DHHS. Add. SMF 190.

Drost does not recall any statement by Gagnon of an intention to make a report

to DHHS. Resp. to Add. SJvfF 'I[ 90. Gagnon made a report to DHHS via email on

May 151 2014. Add . SMF '[ 93. This follows a report made by Gagnon in

September 2014. Resp. to Add. SMF IJ193.

II. Summary Judgment Standard

Summary judgment is appropriate if, based on the parties' statements of

material fact and the cited record1 there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c);

Dyer v. Dep't of Trcmsp. 1 2008 ME 1061

that can affect the outcome of the case. A genuine issue of material fact exists

when the fact finder must choose between competing versions of the truth." Id.

(citations omitted). When deciding a motion for sur:nmary judgment1 the court

reviews the evidence in t11e light most favorable to the non-moving party. Id.

When the party moving for summary judgment bears tl1e burden on a

claim or defense, the moving party must establish the existence of each element

7 :· ··. ­

of the claim or defense without dispute as to any material fact in the record in

order to obtain summary judgment. Cach, LLC v. Kulas, 2011 ME 70 1

1015. If the motion for smnmary judgment is properly supported, then the

burden shifts to the 11011-moving party to respond with specific facts indicating a

genuine issue for h·ial in order to avoid summary judgment. M.R. Civ. P. 56(e). . . ....-,.--...·-----·- -····-···....·---- . ---.... . ···-·--·---··-•. ,, ..... _ ........_ ........ -···---· ------··-··..·------··-·-··-----·-- - ~·~·-··""­ -· --····--­ ___,, ,-.

III. Discussion

In order to make out a claim pursuant to the Maine Whistleblower

Protection Act, ci plaintiff must allege facts sufficient to show the "three elements

to a claim of unlawful retaliation: (1) the employee engc1ged in activity protected

by the statute; (2) the employee was the subject of an adverse employment

action; and (3) there was a causal link between the protected activity and the

adverse employment action." Costain v. Sunbury Primary Care, P.A., 2008 Jv1E 1421

q[ 61 954 A.2d 1051. Woodlands moves the Court for summary judgment on two

grounds. Woodlands argues tl1at Gagnon has failed to allege facts sufficient to

show that any reports made by Gagnon were protected by the Maine

Whistleblower Protection Act ("MWPA") and that no causal connection exists

between Gagnon's alleged reports and the termination of her employment. The

Court considers each of these argwnents in turn.

A. Reports

Woodlands first argues that Gagnon's reports were not protected w1der

the Maine Whistleblower Protection Act ("MWPA"). The MWPA provides:

1. Discrimination prohibited. No employer may discharge, threaten or otherwise discriminate agajnst an employee regarding the employee's compensation, terms, conditions, location 01· privileges of employm ent because:

B. The employee, acting in good faith, or a person acting on behalf of the employee, reports to the employer or a public body, orally or

8 .. ,

in writing, what the employee has reasonable cause to believe is a condHion or practice that would put al risk the health or safety of that employee or any other individual.

26 M.R.S. § 833 (2015). The following subsection creates a11 exception to the rule

that an employer n1ay not discriminate against an employee for reporting a

tlu-ea t to heal th or safety: ---········· .. -· ·-·- ·------ . ;. :..:.._ .. ,, .: ·- · ······'·-··· .. ·.. ···---- ····· ··-·.. .. .· --··- ·· .. -· -­ I

--- ---·· -, . . ___ ,. .. --···--- ..·····---- . ·-----.. ·- ···- ··-·- -···· lo o •

, • • 0

2. Initial repol't to employer required; exception. Subsection 1 does not apply to a.n employee who has reported or caused to be L'epOJ'ted a violation, or unsafe condition or practice to a publi.c body, unless the employee has firsl' brought the alleged violation, condition or practice to the <1ttention. of a person having supervisory authority with the employer and has allowed the employer a reasonable opportunity t·o correct that violation, condition or practice. Prior notice to an employer is not requixed if the employee has specific rec1son to believe that reports to the employer will not result in promptly correcting the violation, condition ot· prnctice.

26 M.R.S. § 833(2) (2015).

1. Supervisory AuthorHy

Woodlands argues th,;1t Nurse Drost, the individual to whom \

Gagnon alleges that she reported threats to residents' health and safety, 1 was not a person with supervisory authority. Therefore, Woodlands

argues, any reports made by Gagnon to Drost did not comply with the

1·equirements of the statute and are not protected.

Gagnon argues thal' Woodlands has conflated the two separate

subsections of Section 833. Gagnon interprets subsection. one as setting out

a protected activity as a report made by an employee to his or her

1 Gagnon specifically alleges that she reported i.n the instances of a resident's rash, the insulin administration in the dining room, and the residents who were not fed to Drost.

9 • ' I ~ · •-••·••• •· • •• - •

employer or to a publ.ic body concerning health or safety. Gagnon cites to

the statutory definition of employer as:

2. Employer. "Ernployel"' means a person who has one or more employees. "Employer" includes art agent of an employer and the State, or a politic'11 subdivision of the State .

.......-... ,,_ -·- _ 26_M.R.S, _§ .8~_2. G~8:-:~n.~gue_s Y:~t ~u1:se Dr?s~ ~i~ h~v~.~UI?.~~rvis?.rr.~:1ti:iority,...- - -··..- --- - ---­ but even if the Court finds the Drost did not have supervisory authority, Drost is

an agent of Woodlands. By reporting to Woodlands' agent, Gagnon argues that

she fulfilled the requirements of the statute and her report was a protected

activity pursuant to the MWP A. Gagnon further contends that Section 833(2),

laying out the exception, does not affect this claim. Section 833(2) states that a

report to a public body is only a protected activity if the employee has first made

the same report to a "person having supervisory authority with the employe1·

,md . , . allowed the employel' a reasonable opporhmity to correct that violation."

26 M.R.S. § 833(2) (2015). Gagnon argues that her repol'ts were mostly made to

Woodlands via Drost, not to a public body. For those reports made by Gagnon

diTectly to a public body1 she ,u·gues that she first made the report to Drost and

provided a reasonc1ble opportunity for Woodlands to correct conditions prior to

contacting DI-II-IS.

The Court agrees with the reasoning set forth by Gagnon. Where a report

is made to an employer, the t'epol't must be made to the employer or an agent

thereof in order to be a protected act.ivity. See 26 M.RS. §§ 833(1), 832. Whet'e a

report is made to a public body, the employee must have first made the same

report to a person with supervisory authority with the employer and provided a

re<1sonable amount of time for the employer to remedy the condil'ions in order

for the report to be a proteded activity. See 26 M.R.S. § 833(2); Sec also Hickson v.

10 .... ,-~- ~-·---···. ....

Vescom Corp ., 2014 ME 27,

P.A., 2008 ME 142,

At summary judgment the Court views the facts in the light most

favorable to the plaintiff. Gagnon has alleged facts, which if true, are sufficient to

fulfill the requirements of a prntected activity. She alleges that she made .._·----· .. -····-- ......:. ... ...:___ :,:.:._ ,. :.:_:_ ......__ :.::._ ::... :.:. ;_·: :.... -:.'.. ·- .:·. ::.~..:... ·: .'---~·:·· . --.. . . .. - .... ·-· ... ·.- .. ._. ,-............ : ·. ··- . ··-· . .·--·- - -- ---......... -........ .. .:....:. ,_

numerous reports to Drost, and after waiting a reasonable amount of time, she

reported the unchanged conditions to a public body. Whether Gagnon did make

the alleged repo~ts, and whether Nurse Drost is a person with supel'visory

authority with Woodlands are questions of fact. These questions fire

inappropriate for swnmary judgment.

2. Job Duties

Woodlands also contends that the alleged reports do not constitute

prntected activities pursuant to the MWPA because part of Gagnon's job at

Woodlands was to make such reports. Woodlands points to a handful of cases

for the proposition that "a plaintiff's reports are not whistleblowing if it is part of

his or her job responsibilities to make such reports, particulal'ly when instnicted

to do so by a superior. 11 Winsow v. Aroostook County, 736 F.3d 23, 32 (1st Cir.

2013); See Harrison v. Granite Bay Cate, Inc., 811 F.3d 36, 51 (1st Cir. 2016); Sklare v.

Extendicare Health Services, Inc., 515 F.3d 836, 841 (8th Cir. 2008). Woodlands claims that the alleged reports were nothing more than Gagnon fulfilling an

important job duty, that she was told to do so by her supervisor, and that making

reports did not jeopardize her job.

Gagnon argues that Woodlands has misrepresented the cited cases and

that there is no exception fol' job duties. Instead of creating a job duties exception

to prntected activity, Gagnon argues that the caselaw supports a review of the

11 ....

motivation behind the report. Gagnon cites to Harrison v. Granite Bay Care, Inc. in

support of this explanation. Harrison v. Granite Bay Care, Inc., 811 F.3d 36 (1st Cir.

2016). In Harrison, discussing the rnle developed in Winslow v. Aroostook County,

the First Circuit stated that "we never so much as uttered the phrase 'job duties

exception' in Winslow, and Granite Bay's arguments in particular are based on a ........ _ ... _ , _ _ . _ .. ... ­ .. · - ..- . ___ . : . _ _ . _ • • • • • . - _ __ . ; _ . ; . ... .'. .... · . - : .. _ . _ .. ·-· ...... . •• • • • _ , ... · .... ... • • • · _ ., - • • • •• • •• . - · ... _ ..... • · :·· - - · · · · - - ·"·... •• .... . . - .. .. - .. 1 •.... -- · --·--·- - - - · - · ... · · · · · ­

distorted understanding of that case." Id. at 47. After further discussion

concerning the facts and findings of Winslow, the First Circuit held "[i]n sum, the

lack of evidence in the record showing that Winslow was motiv21ted by

vvhistleblowing concerns, and not some broad-based job duties exception, is why

we concluded no reasonable jury coul.d find that she had engaged in protected

whistleblowing activity." Id. at 49.

As held by the First Circuit in Harrison, the Court looks to Gagnon's

m.otivation in malcing the report. Whether reporting was one of Gagnon's job

duties may be considered in discerning Gagnon's motivations in making the

reports. However, simply establish:ing that her job required her to report is not

sufficient to entitle Woodlands to a legal determination that her reports were not

protected activities. As described in Harrfson, "if an employee is just doing his or

her job by passing information to others in the organization, he or she may not

have intended to engage in protected whistleblowing activity by bringing to light I an unlawful (or potentially tmlawful) activity or occurrence." Id . at 52. I

Gagnon has alleged that her motivation for making the report was ' concern for the health and safety of Woodlands residents. The Court finds that

whether Gagnon was motivated by a good faith belief that the health and safety I of the residents was at risk is a question of fact. The Court finds that questions of II I ·II 12 I i .-:.: . ~ .

fact l'emain cind Woodlands is not entitled to judgment as a matter of law on the

issue of whether Plaintiff engaged in protected activities.

B. Causal Connect.ion

Woodlands next al'gues that Gagnon has not alleged facts showing that

there was a causal connection between her prntected activity and the termination - ·-•--•-"••-a_a__ Y .. _ •• _ . . :_ ,._ .:•-·--• • - • - - - .. ..:...-,_._,_ • ... • ,:- ',".,,., - " ""-"'" •_.,_, __ ,.,.,.:, . •••• •- ,__ - .,_..,. ', • • ·,,_, • ... •-• • - - . , _ , . , _ .... _ . , . , _ _ ,.,_,_u• ,.._ _ _ __ - ·-­

of her employment. Woodlands argues that because Nurse Drost does not

remember any l'eport made by Gagnon, with the exception of the report

concerning insulin being administered iI~ the dining room, and did not pass any

concerns voiced by Gagnon on to Woodlands' management, that it is not

possible that the reports caused Gagnon's employment to be terminated. Stated

another way, Woodlands contends that because Smith was never told about any

reports made by Gagnon; the reports could not have been the reason he fired

Gagnon.

The L

causation can be inferred from the amount of between when an employee

engages in a protected activity and when that employee is fired. "Temporal

proximity of an employer's awareness of protected activity and the alleged

retaliatory action may serve as the causal link for purposes of a prima fade case. 11

Daniels v. Narraguagus Bay Health Care Facility, 2012 ME 80,

that she followed that up with a report to D:HI-IS on May 15, 2014. Gagnon was

fired on May 5, 2014. Because Gagnon's employment was terminated the day

~rftel' an alleged report was made, the Court finds sufficient temporal proximity

between the repol't and the termination to suggest causation. Questions of fact

remain concerning whether Gagnon mnde the alleged reports and whetber Smith

13 I •• ·1 ,· -·~. -•• ·:·,··.···· ·--·. .

knew of any reports at the time of the termination. Summary judgment is

inappropriate on the element of causation.

IV. Conclusion

The Court denies Woodlands' Motion for Summary Judgment. - - .. •••- ---• • • · - - - - - · • · " " - •--•·"- • • ' - • •-•••-uu-.1... .. ,,. ., ·- _....._ , _ _ _ . , , _ , •_,.,_ ••_,, , ,•- • • - -. , - ·.,•, .. ,. .• _ , · , , - - , ' · ' -, .. ' • - - •~ • • - o u• ... • ••+•- ............ - - • • - • - - - - · - - • ­

The Clerk is directed to in.cmporate this Order into the docket by reference

in accordance with M.R. Civ. P. 79(a).

DATE: Michaela Murphy Justice, Business and Consumer Docket