Rothaus v. H.D. Goodall Hosp.

• Court: Superior Court of Maine
• Decided: May 9, 2013
• Docket: YORcv-12-064
• Status: Unpublished

Opinion

STATE OF MAlNE SUPERIOR COURT YORK, SS. CIVIL ACTION DOCKET NO. CV-)2-064 DONNA ROTHAUS ) .. _jf.' .·,' - . ,<_ r:__ ,/o :; -, '- ~, i./iJ ) Plaintiff, ) v. ) ORDER ) H.D. GOODALL HOSPITAL, ) ) Defendant. )

I. Facts

Plaintiff, Donna Rothaus, R.N., was hired to work for Defendant, H.D. Goodall

Hospital ("Goodall"), in December 2009. (DSMAF ,-r,-r 1-2). Plaintiff contends that she

gave notice at her interview to the Nurse Manager, Laurie Ferris, that she had Grave's

Disease. (Rothaus Dep. at 26-27). Plaintiff contends that she agreed to work the night

shift, but asked whether she could transfer to the day shift and Ms. Ferris assured her that

changes happen all of the time. (Pl. Dep. at 27, 131).

In October 2010, Plaintiff complained to Ms. Ferris that there was excessive cell

phone usage by some of the nurses and that she was shown a picture of a tattooed penis

on one nurse's cell phone. (DSMAF ,-r,-r 3-5). Plaintiff also expressed concern over one

coworker playing computer games during large portions of his shift. (DSMAF ,-r 6).

Plaintiff contends that she expressed her concern that the cell phone usage was negatively

impacting the nurses' patient care. (Pl.'s Resp. DSMF ,-r 5). Ms. Ferris informed Plaintiff

that she would look into her complaint. (DSMF ,-r 10). Plaintiff "got the feeling" that Ms.

Ferris was annoyed. I d. Defendant alleges that Ms. Ferris recirculated Goodall's cell

1 phone policy in response to Plaintiff's complaint. (DSW' ~ 11). Plaintiff contends that

the recirculation did not occur. (Pl.'s Resp. DS11F ~ 11 ).

Plaintiff also contends that three or four months into her employment and again,

several months after that, Plaintiff asked Ms. Ferris if she could transfer from the night

shift to the day shift because she had fatigue and insomnia. (DSW' ~ 69). Parties disagree

as to whether Plaintiff gave Defendant notice that her request was connected to her

Grave's disease.

It is the policy of Goodall Hospital that nurses check in with their assigned

patients and enter documentation into the computerized medical record system. (Pl.'s

Resp. DS11F ~ 13; DSW' ~~ 13, 14). On November 19, 2010, Ms. Ferris was

investigating'an event report and found that Plaintiff had failed to document an injury in

the patient's medical record. (DSMF ~ 15). Ms. Ferris further reviewed the patient's

record and found that Plaintiff did not enter any documentation after her initial

assessment. (DS11F ~ 16). Ms. Ferris sent Plaintiff an email expressing her concern about

Plaintiffs documentation. (DS11F ~ 17). Ms. Ferris than audited Plaintiff's

documentation from November 15 and 22, 2010. Ms. Ferris found that Plaintiff had failed

to make any documentation after the initial assessment for four of the five patients on

November 15, and had left large gaps in documentation on November 22. (DSMF ~~ 19,

20).

The Executive Director of Nursing, Barbara Deveau, and Ms. Ferris, met with

Plaintiff on November 24, 2010 to discuss her documentation. (DSMF ~ 21). They told

Plaintiff of the gaps in documentation and that if her documentation did not improve her

employment would be terminated. (DSMF ~~ 22, 24). They also informed her that she

2 was receiving a written warning. (DS:M:F ,-[ 28). At this time, Plaintiff contends that she

raised the issues of her coworkers' cell phone usage and switching to an earlier shift

because of her Grave's Disease. (Pl.'s Resp. DS:MF ,-[ 27).

On December 23, 2010, Director of Human Resources, Nancy Burgess, received a

letter from Plaintiffs medical provider, Nancy Marshall. (DS:MF ,-r 80). The letter stated

that Ms. Marshall was "concerned about [Plaintiffs] multiple health issues since starting

her third shift position, including disabling fatigue, insomnia, weight loss, and chronic

viral infections," and that it would be in Plaintiffs "best interest to make a change in her

work hours." (DS:MF ,-[ 81 ). Ms. Burgess responded by sending Ms. Marshall an email

with an attached document entitled "ADA Provider Request for Information," and asked

Ms. Marshall to fill it out as soon as possible. (DS:MF ,-[ 84). The document was a request

for information regarding the nature of the impairment, whether and how it affected

Plaintiffs life, the severity and expected duration of the impairment and the limitations

the impairment imposed on Plaintiffs job performance. (DS:MF ,-[ 85). Ms. Marshall

never responded to this request for additional information. (DS:MF ,-[ 86).

There is a dispute as to whether Ms. Ferris continued to monitor Plaintiffs

documentation after the November 24th meeting. Defendant contends that Ms. Ferris

continued to monitor Plaintiffs records and found a number of long gaps between the

entry of records and a number of instances in which the information Ms. Rothaus

documented on her assigned patients' Medication Administration Records did not match

the medication physically removed from the medication cart. (DSW' ,-r,-r 31, 32).

Defendant cites to instances on December 9 and December 25, 2010. (DSW' ,-[,-[ 33-38).

Plaintiff contends that she asked Ms. Ferris for feedback on her documentation a week

3 after the November 24th meeting, at which point Ms. Ferris told her that she had not had a

chance to review Plaintiffs documentation. Plaintiff alleges she asked again two weeks

after that, at which point Ms. Ferris stated that her documentation had improved. (Pl.'s

Resp. DSMF ~ 30). Plaintiff denies any documentation problems after November 24,

2010.

On January 1, 2011, one of Plaintiff's patients "coded" (required resuscitation).

(DSMF ~ 47). Defendant contends that Kate Bolduc and Kristie Harrison came to Ms.

Ferris to discuss concerns they had over Plaintiff's performance at the code. (Ferris Aff. ,-r

13). Defendant contends that Ms. Ferris pulled Plaintiffs records of the code as a result

of the reports by Ms. Bolduc and Nurse Harrison and found that the documentation was.

scant, listing incorrect dates and times and inaccurate information on the code and

patients' vital signs. Id. Defendant alleges that Ms. Ferris, Ms. Deveau, and the Director

of Human Resources agreed that termination of employment was appropriate on this

basis. (Ferris Aff. ~ 15; Burgess Aff. ~ 15; Deveau Aff. ~ 3). Plaintiff contends that she

was commended on her good work at the code occurrence by Ms. Bolduc and that Ms.

Bolduc had specifically told Plaintiff to only document the initial assessment, which is

why the documentation appears scant. (Wakefield Dep. 26, ex. 1). Plaintiff denies that

she inaccurately documented the code occurrence. (Rothaus dep. 84-87). Plaintiff denies

that termination of employment was appropriate. (Pl.'s Resp. DSMF ,-r 55).

On January 7, 2011, Ms. Ferris and Ms. Deveau met with Plaintiff and explained

that they were terminating her employment. (DSMF ~58). Defendant claims Plaintiff

was told her employment was being terminated for her persistent failure to enter

complete, timely and accurate patient records. (Ferris Aff. ~ 17). Plaintiff claims she was

4 told her employment was being terminated because of her performance at code. (Rothaus

dep. 98: 1-9). Defendant sent Plaintiff a letter regarding her termination from employment

and a letter to the Nursing Board reporting the reasons for the termination. (DS11F ~~ 63,

64).

Plaintiff has brought this action for Whistle Blower Discrimination, Disability

Discrimination and Retaliation in Violation of the MHRA against Defendant. Defendant

now moves for Summary Judgment.

II. Standard

When a defendant moves for summary judgment, "the plaintiff must establish a

prima facie case for each element of [the] cause of action that is properly challenged in

the defendant's motion." Flaherty v. Muther, 2011 :ME 32, ~38, 171 A.3d 640, 652-653.

The burden then shifts to the defendant to show that there is no genuine issue of material

fact. Summary judgment is appropriate where no genuine issue of material fact exists and

the moving party is entitled to judgment as a matter of law. Beal v. Allstate Ins. Co., 98 9

A. 2d 733, 738 (Me. 2010); Dyer v. Department of Transportation, 951 A.2d 821, 825

(Me. 2008). When reviewing a motion for summary judgment, the Court reviews the

parties' statements of material facts and the cited record evidence in the light most

favorable to the non-moving party. Id.

A genuine issue of material fact exists where the fact finder must make a

determination between differing versions of the truth. Reliance National Indemnity v.

Knowles Industrial Services Corp., 2005 .ME 29, ~7, 868 A.2d 220, 224, citing Univ. of

Me. Found. V Fleet Bank ojMe., 2003 :ME 20, ~20, 817 A.2d 871, 877. Furthermore, "a

fact is material if it could potentially affect the outcome ofthe case." Id.

5 The Court applies a three-part burden shifting analysis to evaluate employment

discrimination claims at the summary judgment stage. "[T]o determine whether (1) the

employee has presented prima facie evidence of discrimination; (2) the employer has

presented prima facie evidence of a legitimate, non-discriminatory reason for the adverse

action; and, in response, (3) the employee has presented prima facie evidence that the

employer's proffered reason is pretextual or untrue." Fuhrmann v. Staples the Office

Superstore East, Inc., 2012 :ME 135, ,-r13, 58 A.3d 1083, citing Daniels v. Narraguagus

Bay Health Care Facility, 2012 :ME 80, ,-r,-r 14-1, 45 A.3d 722. Plaintiff has the burden of

production, not persuasion.

Ill. Discussion

a. Whistle Blower Claim

In order to show a valid claim for Whistleblower Discrimination under the

Whistleblower Protection Act (WP A), Plaintiff must show "(1) that [the employee]

engaged in activity protected by the WPA, (2) that [the employee] experienced an

adverse employment action, and (3) that a causal connection existed between the

protected activity and the adverse employment action." DiCentes v. Michaud, 1998 :ME

227, ,-r 14, 719 A.2d 509.

The Court finds that Plaintiff whether Plaintiff engaged in a protected activity

when she reported the cell phone usage of other nurses in October 201 0 is a genuine

question of material fact. An employee engages in a protected activity when:

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

6 26 M.R.S. § 833(1)(B). Plaintiff contends that she reported concerns about the care and

safety of patients as a result of nurses' cell phone usage. Defendant denies that Plaintiff

reported concerns about the care and safety of the patients. There is a genuine issue of

material fact of the nature of the report and whether it comports to the standards of a

protected activity under the Whistleblower Protection Act.

A plaintiff may survive summary judgment on the issue of causation if the

plaintiff can make a showing from which a jury could conclude that either "(1) the

circumstances underlying the employer1s articulated reason are untrue, or (2) even if true,

those circumstances were not the actual cause of the employment decision." Cookson v.

Brewer Sch. Dep't, 2009 :ME 57 ~16; See Stanley v: Hancock County Comm'rs, 2004l\1E

157, P 23, 864 A.2d 169, 177. In order to meet this burden, a plaintiff needs to point out

"weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the

employer1s proffered legitimate reasons for its action that a reasonable factfinder could

rationally find them unworthy of credence and ... infer that the employer did not act for

the asserted non-discriminatory reasons. '1 Cookson, 2009 :ME 57, ~17 (quotation marks

omitted). A plaintiff must show that the reasons given are "pretextual" and "that there

was, in fact, a causal connection between the protected activity and the adverse

employment action." Stanley v. Hancock Cnty. Comm 'rs, 2004 :ME 157, ~ 12, 864 A.2d

169 (quoting DiCentes, 1998 :ME 227, ~ 16, 719 A.2d 509).

Plaintiff asserts that she was fired as a result of her report of excessive cell phone

usage by other nurses. The Law Court has held that proximity in time between the report

and adverse employment action is sufficient to show a connection for the purposes of

retaliation claims. Daniels, 2012 :ME 80, ~ 21; Fuhrmann 2012 :ME 135, ~ 16. In the

7 current case, Plaintiffs initial report occurred in October 2010. Plaintiff alleges that she

brought the cell phone usage to the attention of her supervisor again on November 24,

2010. Plaintiff was fired on January 7, 2011. Plaintiffs employment was terminated

within two months of her second report of the cell phone usage. This raises a genuine

issue of material fact as to whether Plaintiff's employment was terminated because of her

report of the excessive cell phone usage by other nurses at Goodall.

Defendant asserts that the true reason Plaintiffs employment was terminated was

because of her persistent failure to enter complete, timely, and accurate documentation in

patient's medical records. Plaintiff raises a genuine question of material fact as to

whether Defendant's stated reason for Plaintiffs termination from employment was

pretextual. Plaintiff contends that at the time of the firing, Plaintiff was informed that she

was being fired for her performance at code. Plaintiff argues that this reason is pretextual

because she was told that she performed well at the code by her supervisor Ms. Bolduc.

Defendant also cites to Plaintiffs past documentation issues and the documentation ofthe

code occurrence as reasons for termination of Plaintiff's employment. Plaintiff argues

that her documentation was not the true reason for her firing. Plaintiff was spoken to once

about her documentation issues. Plaintiff contends that on the day of the code occurrence

Ms. Bolduc told her to only document the initial evaluation at the beginning of her shift

for the patient who experienced the code. Finally, Plaintiff contends that Ms. Ferris had

told her that her documentation had improved since the November 24th meeting. Viewing

the evidence in the light most favorable to the non-moving party, the Court finds a

genuine issue of material fact concerning whether the Defendant's stated reason for

8 terminating Plaintiffs employment was pretextual. Summary Judgment is inappropriate

at this time.

b. Disability Discrimination

Plaintiff claims Goodall failed to make reasonable accommodations to her

disability after she made requests and therefore discriminated against her pursuant to the

Maine Human Rights Act (MHRA). 5 M.R.S. § 4572 (2012); C.M.R. 94 348 3.08(D)(l) 1

In order to beat a motion for summary judgment, "an employee must first establish a

prima facie case that (1) [s]he has a disability; (2) [s]he is otherwise qualified, with or

without reasonable accommodations, to perform the essential functions of his job; and (3)

[her] employer adversely treated [her] based in whole or in part on [her] disability."

Daniels v. Narraguagus Bay Health Care Facility, 2012 :ME 80, ~ 14, 45 A.3d 722, citing

Whitney v. Wal-Mart Stores, Inc., 2006 ME 37, P 9, 895 A.2d 309.

The Court does not have to reach the second or third parts of the three-part,

burden-shifting test because Plaintiff has not provided a prima facie showing that

Defendant adversely treated Plaintiff based in whole or in part on her disability. Plaintiff

has presented evidence creating a question of fact concerning whether Plaintiff has a

disability, and whether Plaintiff is otherwise qualified for her job. However, Plaintiff has

not presented evidence that the reason her request for the accommodation of switching

shifts was denied was due to Plaintiffs disability. Plaintiff asserts that she informed her

employer of her Grave's Disease and her need to switch to an earlier shift in her

interview and again within the first few months of her employment. Plaintiff's medical

1 "It is an unlawful employment practice for an employer to fail or refuse to make reasonable accommodations to the physical or mental limitations of otherwise qualified employees or applicants for employment, unless the employer can demonstrate that a reasonable accommodation does not exist or that an accommodation would impose an undue hardship on the conduct of the employer's business." C.M.R. 94 348 3.08(D)(1).

9 provider also sent a letter requesting an accommodation for health reasons. However,

when Defendant sent Plaintiff's medical provider a form to fill out she failed to fill it out

and return it. Plaintiff did not provide Defendant with the necessary information

concerning her disability and how her disability could be reasonably accommodated.

Without this information, Defendant was not was not obligated to accommodate Plaintiff

in the manner requested. An employer is required by law to provide reasonable

accommodation where the employee has shown the employer proof of the disability and

that a reasonable accommodation can be granted without undue burden to the employer. 5

M.R.S. § 4572 (2012); C.M.R. 94 348 3.08(D)(1)(2008). An employer is not required to

grant accommodation where the employee has not offered proof of the disability or

information on the needed accommodation. Defendant is entitled to judgment as a matter

of law on this claim.

c. Retaliation in Violation oflv1HRA

Plaintiff claims that her firing was retaliation for her request for accommodation

of her disability in violation ofthe Maine Human Rights Act. 5 M.R.S. § 4572 (2012). In

order to defeat a motion for summary judgment a plaintiff must first make a prima facie

showing that she requested a reasonable accommodation, that there was an adverse

employment activity, and that there is a causal connection between the request and the

adverse employment activity.

Plaintiff has made a prima facie showing. Plaintiff claims that she gave Defendant

notice of her disability at her interview, and again within her first few months of

employment. Plaintiff alleges that she requested to be placed on an earlier shift on both of

those occasions. Plaintiff's health care provider, Nancy Marshall, sent a letter received on

10 December 23, 2010, stating Plaintiff's ailments and that they would be alleviated by

being scheduled on an earlier shift. Plaintiffs employment was terminated on January 7,

2011, fifteen days after Defendant received the letter from Plaintiffs healthcare provider.

Similar to Plaintiffs whistle blower claim, the proximity in time of Plaintiffs request for

the accommodation of an earlier shift to the termination of Plaintiffs employment is

sufficient for a showing of causation for the purposes of summary judgment. Daniels,

2012 ME 80, ~ 21; Fuhrmann, 2012 J\1E 135, ~ 16.

Defendant's given reasons for firing Plaintiff are Plaintiffs performance at the

code occurrence and her documentation issues. Defendant has offered evidence of the

November 24th meeting between Plaintiff, Ms. Ferris and Ms. Deveau. Nonetheless,

Plaintiff has raised sufficient doubt concerning the true reason for Plaintiff's firing.

Plaintiff was fired just over two weeks after her medical provider sent a letter suggesting

that Plaintiff be switched to an earlier shift for health reasons. Plaintiff has offered

evidence of a conflicting version of what occurred at the code occurrence and denies

documentation problems after the November 24th meeting, casting doubt on Defendant's

given reasons. Viewing the evidence in the light most favorable to the non-moving party,

Plaintiff has raised a genuine issue of material concerning whether Defendant's given

reason for firing Plaintiff was pretextual. Summary Judgment is not appropriate at this

time.

IV. Conclusion

Defendant's Motion for Summary Judgment is GRANTED as to Plaintiffs claim

for Disability Discrimination. Defendant's Motion for Summary Judgment is DENIED as

11 to Plaintiff's claims of Whistleblower Retaliation and Retaliation in Violation of the

MHRA.

Date: John O'Neil, Jr. Justice, Superior Court

ATTORNEY FOR PLAINTIFF: GUY D LORANGER LAW OFFICE OF GUY D LORANGER ONE GRANNY SMITH COURT SUITE 3 OLD ORCHARD BEACH ME 04064

ATTORNEYS FOR DEFENDANT: KATHARINE I RAND JAMES R ERWIN PIERCE ATWOOD MERRILLS WHARF 254 COMMERCIAL STREET PORTLAND ME 04101