Randall v. Central Maine Medical Center

• Court: Superior Court of Maine
• Decided: June 3, 2015
• Docket: ANDcv-14-002
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT ANDROSCOGGIN, ss CIVIL ACTION RECEIVED & FILEC A UBSC-CV-14-002

RACHEL RANDALL, JUN 0 3 2015 ANDROSCOGGiN Plaintiff SUPERIOR COURT

v. ORDER ON MOTION FOR SUMMARY JUDGMENT CENTRAL MAINE MEDICAL CENTER,

Defendant

Before the court is defendant Central Maine Medical Center ("CMMC")'s

motion for summary judgment. Plaintiff Rachel Randall's complaint includes

three counts: (1) hostile work environment, (2) retaliation, and (3) slander per se.

For the following reasons, CMMC' s motion is granted in part and denied in part.

FACTS

The following facts are presented in a light most favorable to the plaintiff

as the non-moving party. Plaintiff Rachel Randall started working at CMMC in

January 2011. (Def.'s Supp. S.M.F. 'li 1; Pl.'s Add. S.M.F. 'li 10.) Randall initially

worked in the Maternity Ward until September 2011 when she transferred to the

Surgical Department. (Pl.'s Add. S.M.F. 'li 12.) In this role, Randall's direct

supervisor was Shari Lavoie, the clinical coordinator of the operating room.

(Def.'s Supp. S.M.F. 'li 1; Pl.'s Add. S.M.F. 'li 9.) The manager of the operating

room was Joann Geslak. (Def.'s Supp. S.M.F. 'li 1.)

On December 6, 2011, Randall had her 90-day review and was rated

"meets" expectations in every category of the review. (Pl.'s Add. S.M.F. 'li 12.)

Following that review, Randall had several documented performance issues. On February 28, 2012, Randall received verbal counseling after she

assisted on a surgical procedure. (Def.'s Supp. S.M.F.

The discipline was documented, and Randall filed a written rebuttal. (Pl.'s Add.

S.M.F.

warning because of an error during another procedure. (Pl.'s Add. S.M.F.

Def.'s Supp. S.M.F.

which stated that she attended the procedure only for experience. (Pl.'s Add.

S.M.F.

Two or three months prior to July 2012, Randall had an affair with her co-

worker Linwood Dumeny. (Pl.'s Add. S.M.F.

affair, according to Randall, Dumeny began stalking her and the two co-workers

had a tense relationship at work. (Pl.'s Add. S.M.F.

July 18, 2012, Randall was disciplined for unprofessional and inappropriate

behavior in an operating suite. (Def.'s Supp. S.M.F.

Randall complained to Human Resources at CMMC about Dumeny's behavior.

(Pl.'s Add. S.M.F.

eventually returned to a normal working relationship. (Pl.'s Add. S.M.F.

According to Randall, she did not receive any other discipline until

December 2012, and there is no documentation of any discipline between July

and December. (Pl.'s Add. S.M.F.

10, Geslak counseled Randall after Randall violated CMMC' s on-call policy when

she was unavailable on December 7. 1 (Def.'s Supp. S.M.F.

other doctors complained about Randall's performance. (Def.'s Supp. S.M.F.

1 Plaintiff's denial of this fact is not supported by the record citation. (Pl.'s Opp. S.M.F. 9I 9.)

2 10-11, 17-18; Pl.'s Opp. S.M.F. errerr 10-11, 17-18.) Dr. D' Augustine complained to

Lavoie on December 18, 2012 about Randall's camera technique during a certain

difficult procedure and asked that Randall not assist on that specific procedure.

(Def.'s Supp. S.M.F. err 10, as qualified by Pl.'s Opp. S.M.F. err 10.) According to

Lavoie, Dr. Regan complained about Randall's sterile technique the morning of

December 19, 2012 and asked that she not work in his operating room. (De£.' s

Supp. S.M.F. err 11.) Randall denies that Dr. Regan ever raised any issues about

her performance, and there is no documentation regarding Dr. Regan's

complaint. (Pl.'s Opp. S.M.F. err 11.)

On December 19, Randall was assigned to assist a Dr. Drouin on a

procedure. (Def.'s Supp. S.M.F. err 17.) After the procedure, Dr. Drouin

complained about Randall's performance and asked that Randall not be assigned 2 to assist on his cases in the future. (Def.'s Supp. S.M.F. err 17.) At the time, Lavoie

and Geslak did not document Dr. Drouin's complaint in writing.

After work on December 19, 2012, Durneny commented to Randall, "hey, I

think you will find this funny. Dr. Regan asked me today if I fucked you. And I

said what? He said, he asked did you or did you not fuck Rachel Randall." (Pl.'s

Add. S.M.F. err 27; Def.'s Reply S.M.F. err 27.) Randall was shocked and upset by

the comments, and she drove horne and told her husband. (Pl.'s Add. S.M.F.

err 28.) Durneny was referring to a conversation that occurred during work in the

operating suite while other co-workers were present. (Pl.'s Add. S.M.F. err 29.)

2 Although Randall disputes that her performance was poor, she offers no evidence to contradict the fact that Dr. Droui:r\ believed her performance was poor and complained to Geslak. (Pl.'s Opp. S.M.F. 9[ 17.)

3 When Randall arrived at work on December 20, she filed a complaint with

Geslak about the incident. (Pl.'s Add. S.M.F. '1[ 31.) According to Randall, Geslak

gasped and said she would get to the bottom of it. (Pl.'s Add. S.M.F. 9I 32.) She

understood that Randall was making a very serious allegation. (Pl.'s Add. S.M.F.

9I 33.) Randall expressed to Geslak her belief that Dr. Regan's conversation with Dumeny was sexual harassment and violated CMMC's sexual harassment policy.

(Pl.'s Add. S.M.F. 9I9I 35-36.) According to CMMC's sexual harassment policy,

common examples of sexual harassment include "slurs, jokes or degrading

comments of a sexual nature, or suggestive or lewd remarks." (Pl.'s Add. S.M.F.

9I 3.) Geslak investigated the complaint by speaking with Dumeny and Dr.

Regan, however, Geslak's conversation with Dr. Regan is not documented. (Pl.'s

Add. S.M.F. 9I9I 39-43; Def.'s Reply S.M.F, 9I9I 39-43.) Dr. Regan does not recall

speaking with anyone about the incident. (Pl.'s Add. S.M.F. 9I 42.) When Dumeny

discussed the incident with Geslak, he offered a different version of the

conversation from what he shared with Randall. (Pl.'s Add. S.M.F. 9I 39.) He

reported that, although Dr. Regan's comments were sexual in nature, he did not

use the "f" word and did not mention Randall by name. (Pl.'s Add. S.M.F. '1[ 39;

Def.'s Supp. S.M.F. 9I 32.)

After Dumeny met with Geslak, Randall approached him and shared that

she had reported to Geslak about Dr. Regan's comments. (Def.'s Supp. S.M.F. 9I

25.) Dumeny told her that Dr. Regan did not say exactly what he originally told

Randall, but, according to Randall, Dumeny did not say specifically what Dr.

Regan said in the operating suite. (Def.'s Supp. S.M.F. 9I 26, as qualified by Pl.'s

Opp. S.M.F. 9I 26.)

4 After Geslak allegedly spoke with Dumeny and Dr. Regan, she concluded

on December 20 that the sexual harassment complaint was unfounded. (Pl.'s

Add. S.M.F.

who was in the operating suite and heard Dr. Regan's comments that day. (Pl.'s

Add. S.M.F.

documentation about Randall to Lisa Burger, who works in human resources

and requested advice about firing Randall. (Pl.'s Add. S.M.F.

S.M.F.

not enough to fire Randall because the documentation was written but not final.

(Pl.'s Add. S.M.F.

moving to termination based on a number of factors, including the fact that

Randall "made a false accusation of sexual harassment against a physician."

(Pl.'s Add. S.M.F.

On December 28, Geslak forwarded Burger's email to Lavoie and stated

that they needed to give Randall a final written warning. (Pl.'s Add. S.M.F.

as qualified by Def.'s Reply S.M.F.

Randall to Kirk Miklavic, Burger's supervisor in human resources. (Pl.'s Add.

S.M.F.

information, there was no evidence of any discussion with Randall to get her

perspective. (Pl.'s Add. S.M.F.

information to have a "nose to nose meeting" with Randall and temporarily stop

scheduling her. (Pl.'s Add. S.M.F.

with Randall. (Def.'s Add. S.M.F.

In late December 2012 and early January 2013 Lavoie and Geslak began I

collecting statements from physicians and Randall's co-workers. about their

5 issues with Randall. (Pl.'s Add. S.M.F. errerr 60-61; Def.'s Reply S.M.F. errerr 60-61.)

The actual written comments from co-workers and doctors conflict with Lavoie's

accounts. One email from Dr. D' Augustine to Geslak states that he did not want

Randall holding the camera during one specific procedure but said that Randall's

performance was not an issue during routine cases. (Pl.'s Add. S.M.F. err 64.) He

also states that he was disappointed with how Lavoie handled the situation,

noting "her attitude and actions were unhelpful for the patient care issue." (Pl.'s

Add. S.M.F. err 65.)

Geslak also pressured one of Randall's co-workers, Jesse Zack, into 3 making a written statement about Randall. (Pl.'s Add. S.M.F. err 49.) The

statement relates an incident in which Randall used unprofessional language in

questioning whether she was being punished, apparently for a work assignment.

(Pl.'s Add. S.M.F. err 49.)

Lavoie and Geslak also documented the complaint from Dr. Drouin about

plaintiff's performance during a procedure on December 19. (Def.'s Supp. S.M.F.

err 17.) Another doctor confirmed that plaintiff's performance was poor during the

procedure. (Def.'s Supp. S.M.F. err 18.) According to Randall, Geslak and Lavoie

did not initially take the complaint seriously. (Pl.'s Opp. S.M.F. errerr 17-18.)

On January 7, 2013, Randall met with Lavoie, Geslak, and Burger and was

given the option of resigning rather than being terminated. (Pl.'s Add. S.M.F. errerr

69, 73.) Randall opted to resign. (Def.'s Supp. S.M.F. err 43.) According to Randall

she was "completely blindsided" by the accusations against her and was "bullied

3 Defendant's qualification that Zack was not pressured into making a statement is unfounded. Zack says in his statement that he was putting his comments in writing "under a degree of unwillingness." (Def.'s Reply S.M.F.

6 into resigning." (Pl.'s Opp. S.M.F 'IT 43; Pl.'s Add. S.M.F. 'IT'IT 71, 73.) Randall was

presented with an "Involuntary Termination Form" that accused Randall of

making an "unfounded accusation against a surgeon regarding sexual

harassment." (Pl.'s Add. S.M.F. 'IT 76.)

DISCUSSION 1. Standard of Review

"Summary judgment is appropriate if the record reflects that there is no

genuine issue of material fact and the movant is entitled to judgment as a matter

of law." Dussault v. RRE Coach Lantern Holdings, LLC, 2014 ME 8, 'IT 12, 86 A.3d 52

(quoting F.R. Carroll, Inc. v. TD Bank, N.A., 2010 ME 115, 'IT 8, 8 A.3d 646). "A

material fact is one that can affect the outcome of the case, and there is a genuine

issue when there is sufficient evidence for a fact-finder to choose between

competing versions of the fact." Mcilroy v. Gibson's Apple Orchard, 2012 ME 59, 'IT

7, 43 A.3d 948 (quoting N. E. Ins. Co. v. Young, 2011 ME 89, 'IT 17, 26 A.3d 794).

"Even when one party's version of the facts appears more credible and

persuasive to the court, any genuine factual dispute must be resolved through

fact-finding, regardless of the nonmoving party's likelihood of success." Lewis v.

Concord Gen. Mut. Ins. Co., 2014 ME 34, 'IT 10, 87 A.3d 732. When a defendant

moves for summary judgment, "the plaintiff must establish a prima facie case for

each element of her cause of action." Watt v. Unifirst Corp., 2009 ME 47, 'IT 21, 969

A.2d 897.

2. Hostile Work Environment

Plaintiff does not oppose dismissal of her hostile work environment claim.

(Pl.'s Mem. at 1 n.1.) Accordingly, count I of the complaint is dismissed.

3. Retaliation

7 Under the Maine Human Rights Act ("MHRA"), it is unlawful for an

employer "to discriminate in any manner against individuals because they have

opposed a practice that would be a violation of [the MHRA]." 5 M.R.S. § 4572(E)

(2014). Sexual harassment and gender discrimination is unlawful under the

MHRA. 5 M.R.S. § 4572(1)(A). To demonstrate a prima facie retaliation claim, a

plaintiff must demonstrate: (1) she engaged in a statutorily protected activity, (2)

the employer made an employment decision that adversely affected her, and (3)

a causal link between the protected activity and the adverse employment action.

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

retaliation claim is distinct from a discrimination claim and "does not require

there to have been underlying discrimination." Id.

summary judgment on a retaliation claim, the court must apply a three-part,

burden-shifting analysis: at step one the employee must demonstrate a prima

facie case, at step two the burden shifts to the employer to produce evidence of a

non-retaliatory reason for the adverse action, and, at step three the employee

must show that the employer's stated reasons are false or that the employee was

not fired for those reasons. Doyle v. Dep't of Human Servs., 2003 ME 61,

A.2d 48; Trott v. H.D. Goodall Hasp., 2013 ME 33,

a. Prima Facie Case

CMMC first challenges whether Randall engaged in protected activity

under the MHRA. "A protected activity is broadly defined as conduct ... that is

in opposition to an unlawful employment practice of the defendant." Bowen v.

Dep't of Human Servs., 606 A.2d 1051, 1054 (Me. 1992) (internal quotation marks

omitted). Under this standard, a plaintiff need "only show that she had a

reasonable belief that the conduct complained of amounted to an unlawful

8 employment practice .... " Id. CMMC argues that Randall could not have had an

objectively reasonable belief as a matter of law that CMMC violated the MHRA

when she reported Dr. Regan's comments to Geslak.

CMMC argues that this case is analogous to Bowen. In Bowen, the plaintiff,

a female employee, resigned because vulgar and offensive language was

frequently used in the office. Id. at 1053. Plaintiff filed suit and included claims of

sexual discrimination and retaliation in her complaint. Id. at 1052. The court

found that, because the vulgar language was directed at both men and women,

plaintiff could not have "reasonably believed that the treatment she received ...

was occasioned by her gender and was therefore an unlawful employment

practice." Id. at 1055.

This case is distinguishable from Bowen. At the time Randall complained

to Geslak, she was under the impression that Dr. Regan had explicitly asked

Dumeny, using vulgar language, whether Dumeny had had a sexual affair with

Randall in front of Randall's co-workers. Nothing in Bowen is comparable to the.

comment that Dr. Regan allegedly made in front of hospital staff. Although the

incident may not have happened the way Randall initially reported, the law is

clear that there need not be any underlying discrimination for a plaintiff to

prevail on a retaliation claim. Geslak took Randall's complaint seriously and

understood that the complaint was a sexual harassment claim. Furthermore,

CMMC' s own sexual harassment policy identifies jokes and degrading

comments of a sexual nature as common examples of sexual harassment.

Randall's belief was not objectively unreasonable as a matter of law. Randall has

therefore met her burden to generate an issue of fact as to whether she engaged I in protected activity.

9 There is no dispute that Randall suffered an adverse employment action

because she was forced to resign. The close temporal proximity between

Randall's complaint and the adverse employment action is evidence of a causal

link between the two for purposes of Randall's prima facie case. Doyle, 2003 ME

61, 1 20, 824 A.2d 48; Daniels, 2012 ME 80, 1 21, 45 A.3d 722. Randall has

presented a prima facie case, and the court will therefore proceed to the second

step of the analysis.

b. Employer's Legitimate Rationale

At the second step, the employer must present evidence that it had

legitimate, non-discriminatory reasons for the adverse employment action. There

is no dispute that Randall had documented performance issues and that several

doctors complained about Randall to her supervisors. CMMC has met its burden

at the second step.

c. Employee's Burden on Causation

Finally, the burden shifts to Randall to demonstrate that CMMC's

allegations regarding Randall are false or were not the true reasons for her

termination. Daniels, 2012 ME 80, 115, 45 A.3d 722. "[T]he issue of whether an

employee has generated an issue of fact regarding an employer's motivation or

intent is one heavily dependent on the individual facts before the court." Id. The

Law Court has eschewed a strict "but for" test in determining whether there was

a causal link between protected activity and an adverse employment action. See

Caruso v. Jackson Lab., 2014 ME 101, 113, 98 A.3d 221 ("We have explained that

the jury must be instructed that even if more than one factor affects the decision

to dismiss an employee, the employee may recover if one factor is unlawful I discrimination and in fact it made a difference in determining whether he was to

10 be retained or discharged." (emphasis in original) (quotation marks and brackets

omitted)).

Randall has produced evidence that her most recent written warning

before her termination was in July 2012. Based on communications between

human resources staff, there was a question of whether there was enough

documentation to fire Randall. Miklavic advised that there should be a face-to-

face meeting with Randall, but that meeting never occurred. Only after Randall

filed her complaint did Lavoie and Geslak attempt to gather written

documentation about previous complaints against Randall. If those complaints

were serious enough to warrant firing Randall, Lavoie and Geslak would likely

have documented those complaints at the time they were made. The

documentation that they did gather shows that Dr. D' Augustine was unhappy

with the way that Lavoie handled his complaint about Randall. In addition,

Zack' s written complaint against Randall states that Zack reluctantly put his

statement in writing. Thus, it appears that Lavoie and Geslak were determined to

fire Randall and were simply trying to collect enough documentation to justify it.

There is also no evidence to show that Randall's complaint was fully

investigated because Lavoie and Geslak apparently did not speak with anyone

else who was present for Dr. Regan's comments. Nevertheless, Burger's email

suggests that CMMC staff explicitly based her termination, at least in part, on

Randall's complaint. The involuntary termination form presented to Randall

states that she made an "unfounded accusation" of sexual harassment. There is

no evidence in the record to support a finding that Randall's complaint was

made in bad faith. Drawing all inferences in favor of Randall as the non-moving l

party, she has generated genuine issues of material fact on her retaliation claim.

11 4. Slander Per Se

The elements of a defamation claim are: "(a) a false and defamatory

statement concerning another; (b) an unprivileged publication to a third party;

(c) fault amounting at least to negligence on the part of the publisher; and (d)

either actionability of the statement irrespective of special harm or the existence

of special harm caused by the publication." Morgan v. Kooistra, 2008 ME 26, 'IT 26,

941 A.2d 447. Statements made by an employer concerning the termination of an

employee are conditionally privileged. Cole v. Chandler, 2000 ME 104, 'IT 6, 752

A.2d 1189. "Once it is determined that the defendant is entitled to the privilege,

the burden shifts to the plaintiff to come forward with evidence that could go to

a jury that [the defendant] abused the privilege." Id. (internal quotation omitted).

An employer abuses the privilege by "making statements outside normal

channels or with malicious intent." Id.

Randall alleges in her complaint that CMMC made defamatory statements

concerning her job performance and her claim of sexual harassment. These

statements were made in connection with CMMC' s decision to terminate

Randall's employment, and Randall offers no evidence to show that the

statements were made outside normal channels or with malicious intent. CMMC

is entitled to judgment on count III of Randall's complaint.

CONCLUSION

Randall does not oppose dismissal of her hostile work environment claim,

and that claim will therefore be dismissed. Randall has generated genuine issues

of material fact on her claim of retaliation under the Maine Human Rights Act,

precluding summary judgment on that count of her complaint. Finally, Randall , has failed to show that CMMC abused the conditional privilege for statements

12 made during the course of the termination of an employee, and summary

judgment is therefore appropriate on Randall's slander claim.

The entry is:

Count I of plaintiff's complaint is dismissed. Summary judgment is denied on count II of plaintiff's complaint. Summary judgment is granted on count III of plaintiff's complaint.

Date: .- -;., / ----~-~~~~;r-~~----- 'i/ / ,] MaryGay/Kennedy Justlce~_.S'uperior Court l_/ _ .....·

13 RACHEL RANDALL - PLAINTIFF SUPERIOR COURT ANDROSCOGGIN, ss. Attorney for: RACHEL RANDALL Docket No AUBSC-CV-2014-00002 GUY D LORANGER - RETAINED LAW OFFICE OF GUY D LORANGER ONE GRANNY SMITH COURT SUITE 3 DOCKET RECORD OLD ORCHARD BEACH ME 04064

vs CENTRAL MAINE MEDICAL CENTER - DEFENDANT

Attorney for: CENTRAL MAINE MEDICAL CENTER MICHAEL POULIN - RETAINED 01/28/2014 SKELTON TAINTOR & ABBOTT 95 MAIN STREET AUBURN ME 04210

Attorney for: CENTRAL MAINE MEDICAL CENTER AMY DIETERICH - RETAINED 01/08/2015 SKELTON TAINTOR & ABBOTT 95 MAIN STREET AUBURN ME 04210

Filing Document: COMPLAINT Minor Case Type: CONSTITUTIONAL/CIVIL RIGHTS Filing Date: 01/03/2014

Docket Events: 01/03/2014 FILING DOCUMENT - COMPLAINT FILED ON 01/03/2014

01/03/2014 Party(s): RACHEL RANDALL ATTORNEY - RETAINED ENTERED ON 01/03/2014 Plaintiff's Attorney: GUY D LORANGER

01/27/2014 Party(s): CENTRAL MAINE MEDICAL CENTER SUMMONS/SERVICE - ACK OF RECEIPT OF SUMM/COMP SERVED ON 01/06/2014 MICHAEL POULIN OBO CENTRAL MAINE MEDICAL CENTER

01/27/2014 Party(s): CENTRAL MAINE MEDICAL CENTER SUMMONS/SERVICE - ACK OF RECEIPT OF SUMM/COMP FILED ON 01/27/2014

01/28/2014 Party(s): CENTRAL MAINE MEDICAL CENTER RESPONSIVE PLEADING - ANSWER & AFFIRMATIVE DEFENSE FILED ON 01/28/2014

01/28/2014 Party(s): CENTRAL MAINE MEDICAL CENTER ATTORNEY - RETAINED ENTERED ON 01/28/2014 Defendant's Attorney: MICHAEL POULIN

01/28/2014 ORDER - SCHEDULING ORDER ENTERED ON 01/28/2014 MARYGAY KENNEDY , JUDGE ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO PARTIES/COUNSEL

01/28/2014 DISCOVERY FILING - DISCOVERY DEADLINE ENTERED ON 09/28/2014

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