Theriault v. Genesis Healthcare LLC

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Bruce M. Selya, Appellate Judge and David J. Barron, Appellate Judge. Published. [17-1717]

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Date Filed: 05/16/2018

Entry ID: 6170471

United States Court of Appeals
For the First Circuit
No. 17-1717
PATRICIA THERIAULT,
Plaintiff, Appellant,
v.
GENESIS HEALTHCARE LLC,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]

Before
Howard, Chief Judge,
Selya and Barron, Circuit Judges.

Guy D. Loranger, with whom Danielle M. Campbell and Law Office
of Guy D. Loranger were on brief, for appellant.
James R. Erwin, with whom Elizabeth B. Rao and Pierce Atwood
LLP were on brief, for appellee.

May 16, 2018

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SELYA,

Circuit

Page: 2

Judge.

Date Filed: 05/16/2018

Plaintiff-appellant

Entry ID: 6170471

Patricia

Theriault bills this case as one in which the district court
ignored the teachings of the Maine Supreme Judicial Court (known
in its appellate capacity as the Law Court) and improperly relied
on the McDonnell Douglas framework, see McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), when granting her employer's motion
for summary judgment.

At first blush, this billing seems to

suggest a nuanced question as to whether the McDonnell Douglas
framework is procedural (and, thus, should be applied by a federal
court when adjudicating a state-law cause of action in a diversity
case, regardless of whether the state court would apply it) or
substantive (and, thus, should not be applied by a federal court
when adjudicating a state-law cause of action in a diversity case,
so long as a state court would not apply it).

See Gasperini v.

Ctr. for the Humanities, 518 U.S. 415, 427 (1996); Hanna v.
Plummer,

380

U.S.

460,

465-66

(1965).

Appearances

can

be

deceiving, though, and the presumed need to answer this nuanced
question vanishes upon a careful reading of the Maine cases: the
district court did not rely on the McDonnell Douglas framework
but, rather, followed the prescriptions of the Law Court, went
directly

to

the

issue

of

whether

Theriault

had

made

out

a

cognizable claim for retaliation under state law, and determined
that she had not.

See Theriault v. Genesis HealthCare LLC, No.

15-cv-530, 2017 WL 1403162, at *8 (D. Me. Apr. 19, 2017).

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We

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affirm,

leaving

the

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inquiry

into

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the

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procedural/substantive

dichotomy for another day.
I.

BACKGROUND
We glean the facts from the summary judgment record.

Theriault, a certified nursing assistant (CNA), began working in
1997 at RiverRidge, a nursing facility located in Kennebunk, Maine,
licensed by the Maine Department of Health and Human Services
(DHHS).

The defendant, Genesis HealthCare LLC (Genesis), is the

parent company of Kennebunk Operations LLC, which owns and operates
RiverRidge.

Most of the patients at RiverRidge are in assisted

living, and many suffer from neurological deficits.

As a licensed

nursing facility, RiverRidge is required by law to report any
allegations of patient abuse as soon as it learns of them.

See

Me. Rev. Stat. Ann. tit. 22, § 3477(1).
Theriault

worked

at

RiverRidge

alongside

Cheyenne

Wagner, who was both a CNA and a certified residential medication
assistant.

On November 11, 2014, Wagner approached Elizabeth

Moore, the director of human resources at RiverRidge, to complain
about

Theriault

peering

into

medications she was taking.

Wagner's

purse

and

asking

what

Wagner also lamented that Theriault

had engaged in harassing behavior on Facebook.

As a result of

Wagner's complaint, Theriault was reassigned to a different unit
so that the two women would not have to work together.

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Six days later, Theriault asked Moore why her work
schedule

had

complaints

been

but

changed.

simply

told

Moore

did

Theriault

not

that

mention

employee

varied based on staffing needs in particular areas.

Wagner's
schedules

During this

conversation, Theriault griped about Wagner, expressing her view
that Wagner had been rude because Wagner had refused to discuss
personal problems while at work. Moore cautioned Theriault against
trying to engage in personal conversations in the workplace.
Theriault

then

approached

Sarah

Louise

Corson,

the

director of nursing at RiverRidge, to remonstrate about Wagner.
Corson responded that she had no time for a meeting and asked
Theriault to submit her grievances in writing.
Moore and Corson worried that Theriault's conflict with
Wagner might lead Wagner to leave RiverRidge.
2014,

Moore,

Corson,

and

Robert

On November 20,

Straznitskas

(RiverRidge's

administrator) met with Wagner to discuss her concerns.
brought

a

handwritten

note

to

the

meeting,

listing

Wagner
several

incidents of worrisome behavior on Theriault's part. For instance,
Wagner's note mentioned seeing Theriault grab a resident by the
front of his shirt and shake him.

It also mentioned several

untoward comments allegedly made by Theriault. One time, Theriault
had asked another coworker for a gun "to handle" a difficult
resident. On another occasion, Theriault asked a pharmacy employee
if he had a baseball bat to use on a resident. Similarly, Theriault

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once told the family of a resident that she had "a noose and a
bucket" ready for his use.

Wagner reported that this statement

was very upsetting to the family.
The management team (Corson, Moore, and Straznitskas)
found Wagner's account troubling and thought that the incident in
which Theriault was said to have shaken a resident might well
amount to patient abuse.1

As required by RiverRidge policy, Corson

reported the incident to DHHS, and Theriault was immediately
suspended pending an investigation.

In addition, Corson scheduled

a meeting with Theriault for the next day to discuss the insights
furnished by Wagner.

According to Theriault, she was not told of

the allegations against her and assumed that she would be meeting
to discuss her grievances against Wagner.
When she showed up for the scheduled meeting, Theriault
brought with her a written summary of her concerns regarding
Wagner's

workplace

behavior.

episodes

in

Wagner

which

The

summary

supposedly

was

described

rude

to

several

Theriault,

including once when Theriault asked if "anything was going on that
I should know about" to which Wagner responded "no not really" in
a "very rude[]" manner.

Theriault's summary also complained that,

as Wagner "walked by [Theriault,] she turned away and stuck her

1

In Maine, patient "abuse" is defined as "the infliction of
injury . . . or cruel punishment that causes or is likely to cause
physical harm or pain or mental anguish."
Me. Rev. Stat. Ann.
tit. 22, § 3472(1).

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nose up in the air."

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Later that same evening, Wagner responded

rudely when Theriault asked her if she was going on a break.

After

Wagner returned in about twenty minutes, Theriault thought that
she was in a much more pleasant mood.2
Theriault
texting

on

her

medications.

also

wrote

that

she

cell

phone

"many

times"

Texting

while

distributing

had

observed

while

Wagner

distributing

medications

is

(for

obvious reasons) considered unsafe and is prohibited by RiverRidge
policies.
Corson, Straznitskas, and a Genesis executive were in
attendance at the November 21 meeting.

They perused Theriault's

written summary, but quickly turned to the allegations that had
earlier been leveled against her.

Theriault acknowledged that she

may have made the three statements attributed to her by Wagner,
but insisted that they were made in jest.

With respect to the

claim that she had shaken a resident, she conceded that she might
have grabbed him by the front of his shirt but only to prevent him
from falling.
Moore

and

Corson

investigated

Theriault had shaken the resident.

the

allegation

that

They interviewed the resident

himself (who has a serious brain injury and memory loss) as well

2

Theriault now claims that this behavior led her to suspect
that Wagner was abusing drugs. Such a claim, however, comes as a
bolt from the blue: Theriault never mentioned such a suspicion to
management at any time during her tenure at RiverRidge.

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as his roommates, but unearthed no corroboration.

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They also

interviewed Rosa Vasquez (a CNA), who stated that she had seen
Theriault grab the resident by the shirt and shake him during a
moment

of

wheelchair.

frustration

while

moving

the

resident

into

his

Vasquez intervened, told Theriault to take a break,

and completed the transfer.

She did not report the incident

contemporaneously, but told Wagner about it at a later date.
Moore and Corson found Vasquez's account to be credible
and concluded that Theriault had grabbed the resident in a "nonclinical manner."
highly

They also concluded that she had made the three

inappropriate

statements

attributed

to

her

by

Wagner.

Citing these four findings, Moore asked the company's regional
headquarters for permission to fire Theriault.

That permission

was forthcoming, and Theriault was terminated on November 25, 2014.
The DHHS subsequently conducted its own investigation into the
shaking incident and determined that no patient abuse had occurred.
Theriault did not go quietly into this bleak night.
Asserting that her dismissal was in retaliation for her complaints
against Wagner, she filed a claim with the Maine Human Rights
Commission and received a right-to-sue letter.
Ann. tit. 5, § 4612.

See Me. Rev. Stat.

She then proceeded to invoke diversity

jurisdiction, see 28 U.S.C. § 1332(a), and sued Genesis in Maine's

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federal district court.3

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Her complaint alleged that Genesis had

flouted the Maine Whistleblower Protection Act (WPA), Me. Rev.
Stat. Ann. tit. 26, § 833, and had defamed her.

Following

extensive pretrial discovery, Genesis moved for summary judgment.
See Fed. R. Civ. P. 56(a).

The district court determined that

Theriault had failed to make out genuine issues of material fact
sufficient to bring either of her causes of action to trial.

See

Theriault, 2017 WL 1403162 at *9, *10.
This timely appeal ensued.

In it, Theriault challenges

only the adverse judgment on her WPA claim.
II.

ANALYSIS
"The role of summary judgment is to pierce the pleadings"

and probe the proof to ascertain whether a need for trial exists.
Kearney v. Town of Wareham, 316 F.3d 18, 21 (1st Cir. 2002).

Our

review of the district court's entry of summary judgment is
plenary, and we must take the facts in the light most hospitable
to the nonmoving party, "indulging all reasonable inferences in
that party's favor."
Cir. 1990).

Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st

Summary judgment is appropriate when the evidence of

record "show[s] that there is no genuine issue as to any material

3

Although Genesis is the sole defendant named in this action,
it has not questioned Theriault's allegation that it should be
treated as her employer in connection with her WPA claim.

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fact and that the moving party is entitled to judgment as a matter
of law."

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A swing of the summary judgment axe can be averted if

the nonmoving party adduces competent evidence demonstrating the
existence of a genuine dispute about a material fact.

See Murray

v. Kindred Nursing Ctrs. W. LLC, 789 F.3d 20, 25 (1st Cir. 2015).
"Such evidence must be sufficiently probative that, if it is
credited, a factfinder could resolve the case in favor of the
nonmovant."

Id.

An inquiring court is not obliged either "to

draw unreasonable inferences or credit bald assertions [or] empty
conclusions."

Cabán Hernández v. Philip Morris USA, Inc., 486

F.3d 1, 8 (1st Cir. 2007); see Medina-Munoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
With this rudimentary backdrop in place, we turn first
to the analytic framework that governs the analysis of Theriault's
WPA retaliation claim.
A.

We then consider the merits.
The Analytic Framework.

Sitting in diversity jurisdiction, a district court is
obliged to apply state substantive law and federal procedural law.
See Gasperini, 518 U.S. at 427.

In this case, the parties agree

that Maine law supplies the substantive rules of decision.
The WPA prohibits retaliation against an employee who
makes a "good-faith report of . . . 'a condition or practice that
would put at risk the health or safety of' any person."

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Murray,

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789 F.3d at 25 (quoting Me. Rev. Stat. Ann. tit. 26, § 833(1)(B)).
Maine law confers a private right of action for a violation of
this statutory imperative.

See id.

To prevail on a WPA claim,

the plaintiff must demonstrate that "(1) she engaged in activity
protected by the WPA; (2) she experienced an adverse employment
action; and (3) a causal connection existed between the protected
activity and the adverse employment action."

Walsh v. Town of

Millinocket, 28 A.3d 610, 616 (Me. 2011).
In the case at hand, the first two of these predicate
elements are not in dispute.

Theriault's complaint that Wagner

was texting while distributing medications is plainly protected
activity in the form of a report about a "practice that would put
at risk the health or safety" of the residents, Me. Rev. Stat.
Ann. tit. 26, § 833(1)(B), and Theriault's ouster was unarguably
an adverse employment action. The battleground, then, is the third
element, that is, whether Theriault sufficiently demonstrated the
requisite causal nexus between her protected activity and her
discharge.
summary

To demonstrate a causal link sufficient to defeat a

judgment

evidentiary

motion,

showing

that

Theriault
her

must

protected

make

activity

a

sufficient

(her

alleged

whistleblowing) "was a substantial, even though perhaps not the
only, factor motivating [her] dismissal."

Caruso v. Jackson Lab.,

98 A.3d 221, 226 (Me. 2014) (quoting Walsh, 28 A.3d at 615).

Put

another way, Theriault must make a sufficient evidentiary showing

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that her protected whistleblowing activity was a but-for cause of
her dismissal.

See id. at 227.

The parties hotly dispute what evidence of causation
should

have

been

considered

at

the

summary

judgment

stage.

Theriault argues that under Maine law a court, when faced with an
employer's summary judgment motion in a WPA retaliation case, may
consider only the plaintiff's evidence.

Genesis takes a contrary

position, contending that the court was obliged to consider all of
the

evidence

(including

its

evidence

about

its

reasons

for

terminating Theriault) when determining whether to grant summary
judgment.

Because

the

district

court

rejected

Theriault's

understanding of Maine law and instead considered all of the
evidence, Theriault exhorts us to find that the court applied (at
least

functionally)

erred.

the

McDonnell

Douglas

framework

and

thus

On its own terms, Theriault's argument fails.4

4

As framed, Theriault's argument presumes that the choice of
what framework should be used to analyze a WPA retaliation claim
at the summary judgment stage is a matter of state substantive
law, not a matter of federal procedure. While it can be argued
that the McDonnell Douglas framework is procedural, see, e.g.,
Buytendorp v. Extendicare Health Servs., Inc., 498 F.3d 826, 834
(8th Cir. 2007); Snead v. Metro Prop. & Cas. Ins. Co., 237 F.3d
1080, 1094 (9th Cir. 2001), and therefore should have been invoked
by the district court when adjudicating the summary judgment
motion,
Theriault
has
not
advocated
that
proposition.
Consequently, she has waived any such contention, see United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990), and we express no
opinion as to whether the McDonnell Douglas framework should be
regarded as substantive or procedural.

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Some background is helpful to put Theriault's argument
into perspective.
McDonnell

Douglas

As a general rule, federal courts employ the
burden-shifting

framework

when

analyzing

employment retaliation claims at the summary judgment stage. Under
that framework, the burden is on the plaintiff to make out a "prima
facie case" which requires only "the production of admissible
evidence,

which,

if

uncontradicted,

conclusion of [retaliation]."
712, 719 (1st Cir. 1994).

would

justify

a

legal

Sanchez v. P.R. Oil Co., 37 F.3d

The burden of production then shifts to

the defendant to identify a legitimate reason for the adverse
employment action.

See Murray, 789 F.3d at 25.

Once this minimal

burden of production is satisfied, the burden reverts to the
plaintiff to show that the proffered reason was not the real reason
for the adverse employment action but, rather, was a pretext for
retaliation.

See id.

In Brady v. Cumberland County, the Law Court shelved the
tripartite McDonnell Douglas burden-shifting framework in favor of
a singular inquiry: "whether the record as a whole would allow a
jury to reasonably conclude that the adverse employment action was
motivated at least in part by retaliatory intent."
1158 (Me. 2015).

126 A.3d 1145,

When answering this question, Brady directs a

trial court to collapse the more intricate McDonnell Douglas
framework and, in a seamless inquiry, "recognize any evidence that
the employer had a lawful reason for the adverse action taken

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against the employee, and any evidence that the proffered reason
is merely a pretext."

Id. at 1157-58.

Still, the Law Court did

not regard this change in focus as a sea change in the law. Rather,
it anticipated that "the evidence that would be presented in the
second and third stages of the McDonnell Douglas framework will
still fall within the analytical framework applicable to summary
judgment motions in WPA retaliation cases because that evidence
still bears on the allegation of causation."

Id. at 1158.

The upshot is that when the Brady court shelved the
McDonnell Douglas framework, it perforce jettisoned McDonnell
Douglas's prima facie case requirement, which it criticized as
"limited in . . . effect" and "fall[ing] short of [requiring] a
body of evidence that would be sufficient to permit a finder of
fact to conclude that the employer acted unlawfully." Id. at 1155.
In

its

place,

retaliation

the

paradigm.

court

established

Under

this

a

new,

Maine-specific

Maine-specific

paradigm,

a

plaintiff must present evidence of causation up front, not wait
for the defendant to introduce evidence of its legitimate reason
for terminating her.

See id. at 1157.

Only if the plaintiff in

a WPA retaliation case satisfies this new paradigm will she be
able to survive the defendant's motion for summary judgment.

See

Cormier v. Genesis Healthcare LLC, 129 A.3d 944, 948 n.2 (Me.
2015).

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The
retaliation
requirement.

Law

Court

paradigm

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has

as

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described

embodying

See, e.g., id.

a

this

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Maine-specific

"prima

facie

case"

It has made pellucid, though, that

"a 'prima facie case' within the meaning of the McDonnell Douglas
analysis is different" than the "prima facie case" contemplated
under the new paradigm that it has fashioned for adjudicating WPA
retaliation cases.

Brady, 126 A.3d at 1155, 1158; see Cormier,

129 A.3d at 948 n.2 (explaining that "the term 'prima facie' merely
describes the evidence that 'is sufficient to withstand a motion
for

summary

judgment'

generally,

rather

than

a

specialized

categorization of evidence that does not directly track the three
elements of the claim" (quoting Brady, 126 A.3d 1155)).5
interest

of

articulated

clarity,
by

Brady

we
and

refer
its

throughout

progeny

as

to
the

the

In the

framework

"Maine-specific

retaliation paradigm," not as a "prima facie case" requirement.
Notwithstanding Maine's new paradigm, all roads lead to
Rome:

in the final analysis, the Maine-specific retaliation

paradigm obligates the plaintiff to adduce precisely the same
quantum of proof that she would have had to adduce to defeat
summary judgment under the McDonnell Douglas framework. See Brady,

5

There is a puzzling footnote in Carnicella v. Mercy
Hospital, 168 A.3d 768, 772 n.2 (Me. 2017), which refers to the
"first of the three steps" in the analytic framework.
But
Carnicella is not itself a WPA retaliation case, and in all events
the footnote is dictum. Thus, we do not attempt to decipher the
meaning of the Carnicella footnote.

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126 A.3d at 1157-58.
way.

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The proof is simply arranged in a different

This seems to be what the Law Court meant when it stated

that "[e]limination of the burden-shifting process does not limit
the scope of the evidence presented in summary judgment motion
practice in WPA retaliation cases, when compared to the evidence
that would be presented under the McDonnell Douglas model."
at 1157.

Id.

It follows that, "at the summary judgment stage in WPA

retaliation cases, the parties are held to the same standard as in
all other cases."

Id. at 1158.

To be sure, Theriault resists this conclusion.

She

interprets Brady to mean that a court, faced with a defendant's
summary judgment motion in a WPA retaliation case, may consider
only the plaintiff's evidence.
incorrect:

Theriault's interpretation is

Brady's new approach simply means that, at summary

judgment, "the parties are entitled to present evidence of the
reasons for the employer's action, but without any need to follow
the McDonnell Douglas burden-shifting structure."
We now come full circle.

Id.

Once Brady's Maine-specific

retaliation paradigm is properly understood, it becomes readily
evident that the court below grasped the essence of Brady and was
faithful to it, explicitly eschewing any reliance on the McDonnell
Douglas framework.

See Theriault, 2017 WL 1403162, at *7 n.14.

Consistent with Brady, the court focused on whether the record,
construed in the light most favorable to Theriault, sufficed to

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support an inference "that the adverse employment action was
motivated at least in part by protected activity."
A.3d at 1158.

Brady, 126

Under Brady, this was the decisive question.

Consequently, we reject Theriault's claim that the district court
applied the wrong analytic model and proceed to the substance of
the district court's determination.
B.

The Merits.

Having determined that the court below did not employ
the McDonnell Douglas framework but, rather, employed the analytic
framework prescribed by the Law Court for use in WPA retaliation
cases, we turn to the merits of its summary judgment ruling.
Following an appraisal of the record as a whole, we agree with the
district court that Theriault has failed to adduce sufficient
evidence to make out a genuine issue of material fact on causation.
We explain briefly.
Theriault claims, in essence, that during the course of
RiverRidge's
motivations

investigation
changed

from

into

her

legitimate

complained about Wagner's texting.

alleged
to

misconduct,

retaliatory

when

its
she

Building on this foundation,

she says that this retaliatory motive prompted her firing.

This

finding of causation, Theriault suggests, can be supported in three
ways.

We examine her three suggestions sequentially.
To

begin,

Theriault

argues

that

the

close

temporal

relationship between her November 21 "texting" complaint against

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Wagner and her firing a few days later is enough, in and of itself,
to warrant an inference of causation.6

The case law repudiates

this argument: while Theriault's dismissal followed closely on the
heels of her protected activity, "that fact, standing alone, is
not

enough

to

trigger

an

inference

withstand summary judgment.

of

causation"

that

Kearney, 316 F.3d at 23.

will

Though

temporal proximity may be sufficient to satisfy the first element
of the McDonnell Douglas framework, see Murray, 789 F.3d at 25
(citing Stanley v. Hancock Cty. Comm'rs, 846 A.2d 169, 175 (Me.
2004)), it is not sufficient, by itself, to forge a causal link
strong enough to create an inference of causation and thus satisfy
Brady's new, Maine-specific retaliation paradigm in the face of an
employer's asserted legitimate non-retaliatory reason for the
adverse employment action.
Theriault disagrees, relying principally on the Law
Court's decision in Cormier.

That reliance is mislaid.

In

Cormier, the Law Court determined that temporal proximity between
the protected activity and the adverse employment action could
create a triable issue of fact as to whether Cormier's employer

6

Here, the temporal relationship upon which Theriault's
argument depends is undermined to some extent by the fact that
RiverRidge suspended Theriault for her reported actions and
comments before Theriault made any complaint about Wagner's
alleged texting. For summary judgment purposes, however, we assume
that the relevant temporal relationship was between Theriault's
protected activity and her firing without regard to the timing of
her suspension.

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See Cormier, 129 A.3d at 951.

The Law Court went on to say, however, that the "combined effect"
of temporal proximity and other evidence — not temporal proximity
only — could give rise to an inference of causation sufficient to
withstand summary judgment.

Id.

This holding is consistent with earlier Maine cases.
See, e.g., Stanley, 864 A.2d at 174-77 (upholding summary judgment
for employer even though employee was terminated "a short time
after" making his complaint); Doyle v. Dept. of Human Servs., 824
A.2d 48, 56 (Me. 2003) (upholding summary judgment for employer
notwithstanding "close proximity" between protected activity and
adverse employment action); DiCentes v. Michaud, 719 A.2d 509,
514-15 (Me. 1998) (acknowledging that close temporal proximity
between protected activity and adverse employment action does not
end the matter).

It is also consistent with federal case law.

See, e.g., Murray, 789 F.3d at 26; Mariani-Colon v. Dep't of
Homeland Sec., 511 F.3d 216, 224 (1st Cir. 2007); Kearney, 316
F.3d at 23.

Finally, it is consistent with the way in which WPA

retaliation cases are litigated under Maine law:

on a "summary

judgment motion — just as at trial — the employee must not only
produce evidence that she engaged in protected activity and later
suffered an adverse employment action, but in the first instance
she must also produce some evidence of the employer's unlawful
motivation."

Brady, 126 A.3d at 1156.

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If the employer puts forth

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evidence of a legitimate non-retaliatory reason, the employee must
adduce some evidence that the employer's proffered reason is
pretextual.
Next, Theriault argues that there was evidence in the
record from which a jury could find her employer's stated reasons
for firing her pretextual.

This argument amounts to nothing more

than a post-hoc rationalization.
A

plaintiff

may

show

pretext

by

establishing

"weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate reasons" for
the challenged employment action.

Cookson v. Brewer Sch Dept.,

974 A.2d 276, 282 (Me. 2009) (quoting Billings v. Town of Grafton,
515 F.3d 39, 55-56 (1st Cir. 2008)); see Trott v. H.D. Goodall
Hosp., 66 A.3d 7, 15 (Me. 2013).

Here, Theriault asserts that

even if she grabbed the resident by the front of his shirt, the
incident would not have amounted to abuse and, thus, could not
have justified RiverRidge's decision to cashier her.

She reasons

that because a trier of fact could conclude that the incident did
not amount to abuse, the trier likewise could conclude that
RiverRidge's claim that it dismissed her based on the incident was
pretextual.
Leaving to one side the fact that the "shaking" incident
was not the sole reason for Theriault's dismissal, there is
something to be said for Theriault's premise.

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As Theriault

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suggests, the evidence may be such as to create a factual dispute
about whether patient abuse actually occurred.

But the conclusion

that Theriault would have us draw from this premise — that a
finding of pretext would likewise be permissible — does not follow.
"[E]vidence

of

a

decisionmaker's

mistaken

judgment

is

not

dispositive of the question of pretext unless that evidence would
permit

the

factfinder

to

conclude

that

the

stated

nondiscriminatory justification for the adverse employment action
was either knowingly false or made in bad faith."

Murray, 789

F.3d at 27; see Fuhrmann v. Staples Office Superstore E., 58 A.3d
1083, 1093 (Me. 2012).

There is nothing in the summary judgment

record that would allow a factfinder to conclude that the decision
to fire Theriault for perceived misconduct was either knowingly
false or undertaken in bad faith.

Theriault admits that she

grabbed the resident by the shirt (although she claims that she
did so to prevent him from falling).
reported

that

it

appeared

to

them

Other witnesses, though,
that

Theriault

had

grown

frustrated with the resident and had grabbed his shirt to shake
him.

There is not a shred of evidence that would support an

inference that RiverRidge acted inappropriately in resolving this
conflict by crediting the account of a neutral witness (Vasquez).7

7

Indeed, Theriault herself does not contend that Vasquez
lied. She only contends that Vasquez mis-judged the intent behind
Theriault's actions.

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Theriault cannot make out a genuine issue of material fact with
respect to pretext simply by challenging the "objective veracity"
of an employer's conclusions.

Morgan v. Mass. Gen. Hosp., 901

F.2d 186, 191 (1st Cir. 1990).
It is true, of course, that DHHS eventually concluded
that no patient abuse occurred.

It does not follow, though, that

RiverRidge acted in bad faith in concluding that Theriault's
actions were inappropriate.

Theriault has identified no facts

that

basic

contradict

Genesis's

defense:

that

RiverRidge

administrators conducted an investigation into the allegations of
misconduct made against Theriault, found those allegations to be
substantiated in material part, and based the decision to terminate
her employment on that finding.
(attributing

decretory

See Kearney, 316 F.3d at 23

significance

to

employee's

failure

to

discredit employer's investigative process).
If more were needed — and we doubt that it is — Moore's
request

for

Theriault's
residents.

authorization
inappropriate

to

discharge

comments,

Theriault

which

also

threatened

The comments themselves are jarring.

cited

harm

to

Theriault once

asked a nurse for a gun "to handle" a resident; on another
occasion, she asked for a baseball bat to use on a different
resident; and on yet a third occasion, she told a resident's family
that she had a "noose and a bucket" ready for his use.

Theriault

attempts to minimize these statements by saying that they were

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made in jest and, thus, could not have grounded a good-faith
decision to fire her.
Theriault's appraisal is incorrect.

It is common ground

that inappropriate statements may constitute a basis on which to
terminate an employee even if supposedly made in jest.

See Pina

v. Children's Place, 740 F.3d 785, 797 (1st Cir. 2014).

Words can

be hurtful, see, e.g., Franchina v. City of Providence, 881 F.3d
32, 37 (1st Cir. 2018), and a speaker's demurrer that she was "just
kidding" does not lessen the harm that inappropriate statements
may have caused, see Pina, 740 F.3d at 797.

Here, for example,

Wagner reported that Theriault's "noose and a bucket" statement,
when

uttered,

was

very

upsetting

to

the

resident's

family.

Although Theriault may have thought these comments humorous, she
has adduced no evidence to suggest that RiverRidge acted in bad
faith when it found them far out of line and determined that the
comments,

together

with

the

shaking

incident,

warranted

Theriault's dismissal.
Theriault's final argument rests on a claim of disparate
treatment: she posits that the fact that she was terminated and
Wagner was not is sufficient to ground an inference of pretext.
In support, she cites cases holding that pretext may be inferred
from

proof

differently.

that

similarly

situated

employees

were

treated

See, e.g., Murray, 789 F.3d at 27; Conward v.

Cambridge Sch. Comm., 171 F.3d 12, 20 (1st Cir. 1999).

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The rub,

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however, is that a jury could not find Theriault and Wagner to
have been similarly situated.
The relevant question is whether a reasonable person,
looking objectively at the two incidents, would think them roughly
equivalent and the two employees similarly situated.

See Ray v.

Ropes & Gray LLP, 799 F.3d 99, 114 (1st Cir. 2015).

Wagner was

accused

of

texting

on

her

cell

phone

while

distributing

medications; Theriault was accused of shaking a resident and making
inappropriate comments about inflicting harm on residents.

The

allegations against Wagner were made by Theriault, denied by
Wagner, not corroborated by any third party, investigated by the
employer, and found to be apocryphal. By contrast, the allegations
against

Theriault,

though

originally

made

by

Wagner,

were

confirmed by the employer's investigation, largely admitted by
Theriault, and corroborated in part by a neutral party (Vasquez).
Comparing these two situations is like comparing eels to elephants
— there are many more differences than similarities.

See Morgan,

901 F.2d at 191. Thus, the fact that Wagner's employment continued
while Theriault's did not does not aid Theriault's quest to prove
that

RiverRidge's

stated

reasons

for

her

termination

were

pretextual.
To sum up, Theriault has attempted to discredit her
employer's stated reasons for terminating her, but she has not
succeeded in impugning them.

"Casting aspersions is not enough."

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As both the Law Court and this court

agree, "an employee's assertion of . . . animus on the part of an
employer will not survive summary judgment if she or he relies on
mere

'conclusory

allegations,

unsupported speculation.'"

improbable

inferences,

and

Cookson, 974 A.2d at 283 (quoting

Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218
F.3d 1, 5 (1st Cir. 2000)).

RiverRidge's reasons have remained

plausible, consistent, and coherent.

The mere fact that Theriault

made a complaint about Wagner shortly before Theriault's ouster
does not shield her from the consequences of her own actions.

See

Blackie v. Maine, 75 F.3d 716, 723-24 (1st Cir. 1996) (explaining
that "by engaging in a protected activity, an employee does not
acquire immunity from the same risks that confront virtually every
other employee every day in every work place").
Theriault

has

pointed

to

no

significantly

On this record,

probative

evidence

adequate to support a finding that a causal connection existed
between her protected activity and her dismissal.
III.

CONCLUSION
We summarize succinctly.

The district court faithfully

followed the teachings of the Law Court, applied that court's new,
Maine-specific retaliation paradigm to Theriault's WPA retaliation
claim, and granted summary judgment in favor of Genesis.

Bearing

in mind that the issue of whether the McDonnell Douglas framework
applies to a WPA retaliation claim in a diversity case is not

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before us, see supra note 4, we discern no error either in the
district court's analysis or in its evaluation of the summary
judgment record.
We need go no further.

The entry of summary judgment in

favor of Genesis is

Affirmed.

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