Smart v. Cent. Maine Long Term Care Inc.

• Court: Superior Court of Maine
• Decided: June 10, 2010
• Docket: ANDcv-09-146
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT ANDROSCOGINN, ss. DOCKET NO. RE-09-14p CO£)- AND5 v 0;;1)/:LD/ 0 NICOLE SMART,

Plaintiff ORDER

v.

CENTRAL MAINE LONG TERM CARE INC., d/b/a BOLSTER RECEIV&D & FILED RESIDENTIAL CARE FACILITY, JUN 102010 Defendant. S~~~?~~g8tlk~ DECISION AND ORDER

The Defendant, Central Maine Long Term Care, Inc., d/b/ a/ Bolster

Heights Residential Care Facility ("Bolster" or "Defendant"), has brought this

motion for partial summary judgment before the court.

FACTUAL BACKGROUND

The following facts are drawn from the parties' statements of material

facts. Only those facts that are material to the Defendant's partial motion for

summary judgment on the Plaintiff's Maine Family Medical Leave Requirements

Act ("MFMLA") and defamation claims are presented.

The Plaintiff was employed by Bolster from March 3, 2007 through March

14,2008 as a Personal Support Specialist on a per diem basis. Plaintiff's rate of

pay was $8.29 per hour with a late shift differential pay of $1.25-$1.75. Plaintiff's

supervisor was Barbara Roberts, Bolster's Resident Care Director.

On March I, 2008, Plaintiff reported to work at 10:38 p.m. After punching

in for her shift, Plaintiff experienced abdominal pain. As a result, the charge nurse on duty told Plaintiff to go to the emergency room. Plaintiff called Ms.

Roberts at home and told her that she was experiencing abdominal pain and may

need to go to the emergency room. Ms. Roberts told Plaintiff that if she felt she

needed to go to the emergency room, she should leave work and do so. Plaintiff

then left her shift and went to the emergency room at Central Maine Medical

Center. Plaintiff received 7.5 hours of IV treatment and was diagnosed with

constipation and suspected gas pain. She was discharged from the emergency

room that same night and was not admitted to the hospital. Upon discharge,

Plaintiff was instructed to take milk of magnesia, increase her fiber intake, and

follow up with her primary physician the next day. Plaintiff did not return to

work that night, nor did she follow up with her physician the next day.

As a per diem employee, Plaintiff had no set schedule and was not

guaranteed a minimum number of hours each week. Bolster prepares its staff

work schedules two weeks in advance. Plaintiff's shift beginning Sunday, March

1,2008, was the last shift for the two-week work period of February 17, 2008

through March 1,2008. There is a dispute of fact as to whether the Plaintiff was

scheduled to work during the weeks of March 2,2008 and March 9,2008. The

Defendant contends that the Plaintiff was not placed on the schedule, while the

Plaintiff contends that her name was originally on the schedule but that when

she called in she was told she was not needed. (D.5.M.F.

After her emergency room visit Plaintiff called Bolster on several

occasions to ask when she was going to be placed on the work schedule, and was

repeatedly told that there were no hours available for her, and as a per diem

employee there was no guarantee of hours. On or about March 14, 2008, Plaintiff

was told that her employment with Bolster was terminated. Following her

2 termination, Plaintiff applied for and received unemployment benefits from the

State of Maine. In response to an inquiry from the Bureau of Unemployment

Compensation, Bolster reported that the reason for Plaintiff's termination was

lack of hours. However, in response to Plaintiffs request, through her attorney,

for a written reason why she was terminated pursuant to 26 M.R.S.A. § 630

(2009), Bolster responded that she was "terminated for performance that did not

meet our standards." In support of this, Roberts contends that on at least one

occasion she and a co-worker verbally counseled Plaintiff about complaints

received from residents regarding the quality of Plaintiffscare. (DS.M.F. CJ[ 4.)

Plaintiff denies the statement on the basis that there is no record of such

discussions in Plaintiff's personnel file. (P.O.s.M.F.

Plaintiff argues that her defamation claim is valid because one could infer

that since the Defendant made a poor performance statement to her, it is likely

that it made similar to statements to third parties, which may have caused her

struggle to secure similar employment since her termination. Bolster denies ever

making any such statements, and in fact has a policy where only the dates of

employment are given in response to inquiries from prospective employers

about former employees. Plaintiff admits that she was not forced to self-publish

any alleged defamatory statements to third parties.

Plaintiff claims she is entitled to MFMLA protections because she suffered

from a serious health condition that required continuing medical treatment. As

evidence of her treatment, Plaintiff notes that she saw Kristin Schroeder, N.P., for

a routine follow-up for pain associated with a 2005 right knee injury on March

14, 2008. While there Schroeder noted the Plaintiff's constipation problem and

her emergency room visit 2 weeks prior. Plaintiff saw Schroeder again on April

3 17, 2008 regarding her knee injury. Again, Schroeder noted that the Plaintiff was

to continue with Miralax and Senna to treat her constipation. Plaintiff also states

that she has been taking Miralax continuously since April 2008, and has received

ongoing treatment for her constipation problems. The Defendant, however,

disputes this allegation and claims the Plaintiff has produced no medical

evidence that she received treatment or prescriptions between April 17, 2008 and

March 20,2009. (P.A.S.M.F.9I 9I 9, 13, 14.) The Defendant also argues that

beyond informing Ms. Roberts that she may need to go to the emergency room

on March I, 2008, the Plaintiff never gave notice to Bolster of any alleged need

for family medical leave.

Plaintiff's controlling complaint contains three counts: (Count I) violation

of the MFMLA for employment termination due to missing work because of a

serious health condition; (Count II) Defamation for reporting to third parties that

her job performance was "sub-par;" and (Count III) Violation of Maine wage and

hour laws pursuant to 26 M.R.S.A. §§ 621-A and 626. 1 The Defendant answered,

generally denying the claims. On May 3, 2010, the Defendant filed the disputed

motion for summary judgment that is currently before the court.

DISCUSSION

1. Summary Judgment Standard.

Summary judgment is proper where there exist no genuine issues of

material fact such that the moving party is entitled to judgment as a matter of

law. M.R. Civ. P. 56(c); see also Levine v. R.B.K. Caly Corp., 2001 ME 77, 9I 4, 770

A.2d 653, 655. "Summary judgment is warranted when the statement of material

facts and pleadings, depositions, answers to interrogatories, admissions on file,

1 Count III is not subject to the motion currently before the court.

4 and affidavits, if any, cited in the statement of material facts establish that there

is no genuine issue of material fact and that a party is entitled to a judgment as a

matter of law." Darling's v. Ford Motor Co., 2003 ME 21,14,817 A.2d 877,

879 (citing M. R. Civ. P. 56(c), (h». A party wishing to avoid summary judgment

must present a prima facie case for the claim or defense that is asserted. Reliance

National Indemnity v. Knowles Industrial Services, 2005 ME 29, 1 9, 868 A.2d 220,

224-25.

A genuine issue is raised "when sufficient evidence requires a fact-finder

to choose between competing versions of the truth at trial." Parrish v. Wright,

2003 ME 90, 1 8, 828 A.2d 778, 781. A material fact is one that has "the potential

to affect the outcome of the suit." Burdzel v. Sobus, 2000 ME 84, 16, 750 A.2d 573,

575. "If material facts are disputed, the dispute must be resolved through fact­

finding." Curtis v. Porter, 2001 ME 158, 1 7, 784 A.2d 18, 21-22. At this stage, the

facts are reviewed "in the light most favorable to the nonmoving party."

Lightfoot v. Sch. Admin. Dist. No. 35, 2003 ME 24, 16, 816 A.2d 63, 65.

II. Maine FMLA

Plaintiff claims she was terminated in violation of the NIFMLA. The

Defendant claims that the Plaintiff did not qualify for family medical leave

because she did not suffer from a "serious health condition" as contemplated by

the Act, she was not terminated because of any alleged health condition, and she

failed to give the required notice of her alleged need for leave.

The MFMLA states that '" [f]amily medical leave' means leave requested

by an employee for ... [a s]erious health condition." 26 M.R.S.A. § 843(4).

"'Serious health condition' means an illness, injury, impairment or physical or

mental condition that involves: A. Inpatient care in a hospital, hospice or

5 residential medical care facility; or B. Continuing treabnent by a health care

provider." 26 M.R.S.A. § 843 (6). In order to obtain family medical leave an

"employee must give at least 30 days' notice of the intended date upon which

family medical leave will commence and terminate, unless prevented by medical

emergency from giving that notice." 26 M.R.S.A. § 844 (l)(A).

As there is little Maine law on point, the court can "look to analogous

federal statutes, regulations, and case law for guidance" in interpreting the

MFMLA. See Gordon v. Maine Cent. RR, 657 A.2d 785,786 (Me. 1995). The

United States Deparbnent of Labor defines a serious health condition involving

continuing treabnent by a health care provider as the following:

(a) Incapacity and treabnent. A period of incapacity of more than three consecutive, full calendar days, ...

(b) Pregnancy or prenatal care....

(c) Chronic conditions. Any period of incapacity or treabnent for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:

(1) Requires periodic visits (defined as at least twice a year) for treabnent by a health care provider ...; (2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and (3) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

(d) Permanent or long-term conditions. A period of incapacity which is permanent or long-term due to a condition for which treabnent may not be effective ...

(e) Conditions requiring multiple treabnents. Any period of absence to receive multiple treabnents (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider ....

29 CFR 825.115 (2009).

6 The federal regulations also provide guidance in interpreting the notice

provision of the federal FMLA in its statement that "[w]hen the approximate

timing of the need for leave is not foreseeable, an employee must provide notice

to the employer as soon as practicable under the facts and circumstances of the

particular case," but "the employee need not explicitly assert rights under the

FMLA or even mention the FMLA" to require the employer to determine

whether leave is covered by the FMLA. 29 c.F.R. § 825.303(a) and (b) (2009).

However, in interpreting the federal regulations, the Eighth Circuit has noted:

Because a serious health condition is a prerequisite for FMLA leave, an employee must provide information to the employer to suggest that his health condition could be serious. The employer must be made aware that the absence is due to a serious illness so the employer can distinguish it from ordinary "sick-days," or even malingering, as a type of unusual and privileged absence. To hold otherwise would create an unreasonable burden for employers, requiring them to investigate virtually every absence to ensure that it does not qualify for FMLA leave.

Rnsk v. Fresenius Med. Care N. America, 509 F.3d 466,471-72 (8th Cir. 2007)

(internal citations and quotations omitted).

The court finds that the Plaintiff has failed to establish that she qualifies

for MFMLA protections?

First, the court concludes that the Plaintiff has not adequately alleged facts

demonstrating that she has a "serious health condition" as defined by the Act.

The Plaintiff's illness did not involve inpatient care, nor has she sufficiently

alleged that she suffered from a serious health condition requiring continuing

treatment by a health care provider. See 26 M.R.S.A. § 843(6). The Plaintiff's

attempt to prove ongoing treatment for her abdominal pain by bootstrapping it

2 The court notes that although there are credibility issues with both parties, specifically

regarding whether the Plaintiff was ever verbally disciplined and why she was terminated, they are not material or relevant to this motion for summary judgment.

7 to her already scheduled knee appointments does not establish her claim. Ms.

Schroeder made only limited references to the Plaintiff's constipation problem in

the March 14, 2008 and April 17, 2008 visit notes. Plaintiff's only other evidence3

of continuing medical treatment is a reference to a Miralax prescription

medication, which the court concludes is not tantamount to "continuing

treatment by a health care provider." In addition, the Plaintiff's condition does

not fall within any of the categories provided by the federal regulations defining

"continuing medical treatment." See 29 CFR 825.115 (2009). She was not

incapacitated for three days or for an extended period of time as evidenced by

the fact that she requested to return to work immediately, nor has she alleged

that she suffers from a long-term condition or one that requires multiple

treatments. See e.g. Bauer v. Varity Dayton-Walther Corp., 118 F.3d 1109, 1112 (6th

Or. 1997) (finding that Plaintiff's claim was not a "serious health condition" as

defined by the FMLA).

The court also finds that even if the Plaintiff were able to demonstrate that

she suffered from a serious health condition covered by the Act, the Plaintiff did

not give the Defendant the required notice to obtain the Act's protections.

Although Plaintiff was not required to give the Defendant 30 days advance

notice of her claim as it was a medical emergency requiring an emergency room

visit, the Plaintiff still had a duty to provide Bolster with reasonable notice that

she intended to use family medical leave. See 26 M.R.S.A. § 844(l)(A); see also

Rask, 509 F.3d at 471-72. Calling Ms. Roberts and telling her that she may have to

3 The Plaintiff's treatment by Dr. Buckberg for constipation and abdominal pain did not begin until November 2009. This treatment is too far in time to be considered continuing medical treatment from the March I, 2008 emergency room incident. This also holds true for records relating to treatment on March 20, 2009-well over a year after the emergency room incident.

8 go to the emergency room for abdominal pain was simply not enough to put

Bolster on notice. This is especially true considering the Plaintiff testified that

she called Bolster on numerous occasions after her emergency room visit to find

out when she was next scheduled for work. It is unreasonable to expect an

employer to assume an employee expects to use family medical leave in this type

of situation.

III. Defamation

Defendant has also moved for summary judgment on the Plaintiff's

defamation claim. Defamation requires a showing of a false and defamatory

statement concerning another, an unprivileged publication to a third party, fault

amounting at least to negligence on the part of the publisher, and actionability

irrespective of special harm or the existence of special harm caused by the

publication. Cole v. Chandler, 2000 ME 104,

Christnia Corp. v. Stanley, 487 A.2d 264, 267 (Me. 1985).

The Plaintiff alleges that Bolster's statement to Plaintiff that she was

"terminated for performance that did not meet our standards," "suggests that

agents of Defendant may have made similar remarks to other third parties."

(P1.'s Opp'n to Def.'s Mot. Summ. J. at 6.) The Plaintiff asks the court to infer that

because the Defendant made this statement to the Plaintiff it may be making the

statement to other parties, which may be the reason Plaintiff has not been able to

obtain employment. The court declines to make this inference, as it is tenuous at

best. The Plaintiff has not alleged adequate facts to sustain her defamation claim;

in fact she has not even provided evidence that a defamatory statement was

made. The court not only concludes that summary judgment is warranted, but

cautions counsel in bringing a claim such as this that is virtually meritless.

9 CONCLUSION

The Plaintiff's motion for partial summary judgment is GRANTED.

The clerk shall incorporate this Order into the docket by reference

pursuant to M.R. Civ. P. 79(a).

DATED: CD/I D / 10

10 NICOLE SMART - PLAINTIFF SUPERIOR COURT ANDROSCOG<£rnA'JSEl. OF MAINE Attorney for: NICOLE SMART Docket No AUBSC-CV-2009-00146 SONIA J BUCK - RETAINED 07/21/2009 LINNELL CHOATE & WEBBER LLP 83 PLEASANT STREET DOCKET RECORD PO BOX 190 AUBURN ME 04212-0190

vs CENTRAL MAINE LONG TERM CARE INC - DEFENDANT

Attorney for: CENTRAL MAINE LONG TERM CARE INC MICHAEL POULIN - RETAINED 08/03/2009 SKELTON TAINTOR & ABBOTT 95 MAIN STREET PO BOX 3200 AUBURN ME 04212-3200

Attorney for: CENTRAL MAINE LONG TERM CARE INC KELLY L TURNER - RETAINED 01/05/2010 SKELTON TAINTOR & ABBOTT 95 MAIN STREET PO BOX 3200 AUBURN ME 04212-3200

Filing Document: COMPLAINT Minor Case Type: OTHER STATUTORY ACTIONS Filing Date: 07/21/2009

Docket Events: 07/21/2009 FILING DOCUMENT - COMPLAINT FILED ON 07/21/2009

07/21/2009 Party(s): NICOLE SMART ATTORNEY - RETAINED ENTERED ON 07/21/2009 Plaintiff's Attorney: SONIA J BUCK

07/21/2009 CERTIFY/NOTIFICATION - CASE FILE NOTICE SENT ON 07/21/2009

07/21/2009 Party(s): CENTRAL MAINE LONG TERM CARE INC SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 07/21/2009 THROUGH CAROL MORIN

07/21/2009 Party(s): CENTRAL MAINE LONG TERM CARE INC SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 07/21/2009

07/23/2009 Party(s): NICOLE SMART SUPPLEMENTAL FILING - AMENDED COMPLAINT FILED ON 07/23/2009

08/03/2009 Party(s): CENTRAL MAINE LONG TERM CARE INC ATTORNEY - RETAINED ENTERED ON 08/03/2009 Defendant's Attorney: MICHAEL POULIN

08/03/2009 party(s): CENTRAL MAINE LONG TERM CARE INC RESPONSIVE PLEADING - ANSWER & AFFIRMATIVE DEFENSE FILED ON 08/03/2009 Page 1 of 4 Printed on: 06/10/2010 AUBSC-CV-2009-00146 STATE OF MklCNEr RECORD

TO AMENDED COMPLAINT

08/03/2009 ORDER - SCHEDULING ORDER ENTERED ON 08/03/2009 THOMAS E DELAHANTY II, JUSTICE ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO PARTIES/COUNSEL

08/03/2009 DISCOVERY FILING - DISCOVERY DEADLINE ENTERED ON 04/03/2010

08/03/2009 ASSIGNMENT - SINGLE JUDGE/JUSTICE ASSIGNED TO JUSTICE ON 08/03/2009 THOMAS E DELAHANTY II, JUSTICE

10/05/2009 ADR - NOTICE OF ADR PROCESS/NEUTRAL FILED ON 10/02/2009 ADR IS SCHEDULED FOR 11/12/09 WITH SHARI BRODER, ESQ. AS MEDIATOR

11/19/2009 Party(s): NICOLE SMART MOTION - MOTION TO AMEND PLEADING FILED ON 11/19/2009 WITH MEMORANDUM OF LAW, DRAFT ORDER,

11/20/2009 ORDER - REPORT OF ADR CONF/ORDER ENTERED ON 11/19/2009 ROBERT W CLIFFORD , ASSOCIATE JUSTICE ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO PARTIES/COUNSEL

11/20/2009 ORDER - REPORT OF ADR CONF/ORDER UNRESOLVED ON 11/19/2009 ROBERT W CLIFFORD , ASSOCIATE JUSTICE

12/28/2009 party(s): NICOLE SMART MOTION - MOTION TO AMEND PLEADING GRANTED ON 12/24/2009 THOMAS E DELAHANTY II, JUSTICE COPIES TO PARTIES/COUNSEL

01/05/2010 Party(s): CENTRAL MAINE LONG TERM CARE INC RESPONSIVE PLEADING - ANSWER TO AMENDED PLEADING FILED ON 01/05/2010 TO SECOND AMENDED COMPLAINT

04/15/2010 Party(s): NICOLE SMART OTHER FILING - WITNESS & EXHIBIT LIST FILED ON 04/14/2010

04/15/2010 OTHER FILING - STATEMENT OF TIME FOR TRIAL FILED ON 04/14/2010

04/15/2010 Party(s): CENTRAL MAINE LONG TERM CARE INC DISCOVERY FILING - RULE 26(G) LETTER FILED ON 04/15/2010 DEF'S

04/21/2010 party(s): CENTRAL MAINE LONG TERM CARE INC OTHER FILING - WITNESS & EXHIBIT LIST FILED ON 04/20/2010 DEF'S

04/21/2010 ORDER - ORDER COMPEL INTERROG/DOCUMENT ENTERED ON 04/21/2010 THOMAS E DELAHANTY II. JUSTICE ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO PARTIES/COUNSEL page 2 of 4 Printed on: 06/10/2010 AUBSC-CV-2009-00146 STATE OF ~JEr RECORD

04/23/2010 Party(s): NICOLE SMART LETTER - FROM PARTY FILED ON 04/21/2010 REQUEST FOR SETTLEMENT CONFERENCE. REQUEST SENT TO TINA 4-23-10

05/04/2010 Party(s): CENTRAL MAINE LONG TERM CARE INC MOTION - MOTION SUMMARY JUDGMENT FILED ON 05/03/2010 WITH MEMORANDUM OF LAW, DRAFT ORDER, NOTICE OF HEARING REC'D ON 5/20/10 PLT'S OPPOSITION WITH OPPOSING STATEMENT OF FACTS & AFFIDAVIT OF NICOLE SMART REC'D ON 5/27/10 DEF'S REPLY TO MOTION FOR S/J AND REPLY TO STATEMENT OF ADDITIONAL MATERIAL FACTS.

05/05/2010 ORDER - PRETRIAL/STATUS ENTERED ON 05/05/2010 THOMAS E DELAHANTY II, JUSTICE ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO PARTIES/COUNSEL

05/05/2010 TRIAL - JURY TRIAL SCHEDULED FOR 06/29/2010

05/17/2010 HEARING - SETTLEMENT CONFERENCE SCHEDULED FOR 06/15/2010 CARL 0 BRADFORD , JUSTICE TO BE HELD AT CUMBERLAND COUNTY COURTHOUSE

05/17/2010 Party(s): CENTRAL MAINE LONG TERM CARE INC ATTORNEY - RETAINED ENTERED ON 01/05/2010 Defendant's Attorney: KELLY L TURNER

OS/20/2010 Party(s): NICOLE SMART MOTION - MOTION TO CONTINUE FILED ON 05/18/2010 PLT'S MOTION TO CONTINUE TMC

OS/21/2010 Party(s): NICOLE SMART MOTION - MOTION TO CONTINUE GRANTED ON OS/21/2010 THOMAS E DELAHANTY II, JUSTICE TRIAL MANAGMENT CONFERENCE TO BE SET FOR 6/3/10 AT 10:30 A.M.

OS/21/2010 HEARING - TRIAL MANAGEMENT CONFERENCE SCHEDULED FOR 06/03/2010 @ 10:30 NOTICE TO PARTIES/COUNSEL

OS/25/2010 HEARING - TRIAL MANAGEMENT CONFERENCE NOT HELD ON OS/25/2010 THOMAS E DELAHANTY II, JUSTICE ORDER DATED 5/21/10 IS VACATED TMC TO BE SET AT CALL OF COURT IT WAS NOT SCHEDULED FOR 6/8/10.

OS/28/2010 HEARING - MOTION SUMMARY JUDGMENT SCHEDULED FOR 06/10/2010

OS/28/2010 HEARING - MOTION SUMMARY JUDGMENT NOTICE SENT ON OS/28/2010

06/10/2010 HEARING - MOTION SUMMARY JUDGMENT HELD ON 06/10/2010 CARL 0 BRADFORD , JUSTICE Defendant's Attorney: KELLY L TURNER Plaintiff's Attorney: SONIA J BUCK TAPE 357 INDEX 3334-4117 Page 3 of 4 Printed on: 06/10/2010 AUBSC-CV-2009-00146 STATE OF MA:il:N!H' RECORD

06/10/2010 party(s): CENTRAL MAINE LONG TERM CARE INC MOTION - MOTION SUMMARY JUDGMENT GRANTED ON 06/10/2010 CARL 0 BRADFORD , JUSTICE PARTIAL SUMMARY JUDGMENT COPIES TO PARTIES ON 6-10-10

A TRUE COPY ATTEST: Clerk

Page 4 of 4 Printed on: 06/10/2010