MURRAY v. KINDRED TRANSITIONAL CARE AND REHABILITATION
Filing
36
ORDER ON DEFENDANTS MOTION FOR SUMMARY JUDGMENT granting 22 Motion for Summary Judgment By JUDGE JON D. LEVY. (nwd)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DENISE MURRAY,
Plaintiff,
v.
KINDRED NURSING CENTERS
WEST LLC,
d/b/a KINDRED TRANSITIONAL
CARE & REHABILITATION
KENNEBUNK,
Defendant.
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) Docket No. 2:13-cv-00341-JDL
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ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter is before the court on Kindred Nursing Centers West, LLC’s
motion for summary judgment pursuant to Fed. R. Civ. P. 56.
I. BACKGROUND
Kindred operates a short- and long-term rehabilitation therapy and restorative
care center in Kennebunk. ECF No. 23 at 1. Denise Murray is a Licensed Practical
Nurse who was hired by Kindred in March 2011. Id. Murray’s employment was
terminated a year later in March 2012, following an investigation by Dawn Guptill,
Kindred’s Director of Nursing, in which Guptill concluded that Murray may have
diverted narcotic medicines in violation of Kindred’s policies. Id. at 6, ¶ 36.
Kindred reported the suspected drug diversion to the Maine Department of
Health and Human Services (DHHS) as required by law. Id., ¶ 40. In January 2013,
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Murray entered into a consent agreement with the Maine Board of Nursing by which
she acknowledged having committed “unprofessional conduct” based on “illegible and
substandard documentation, particularly concerning narcotic administration.”
DHHS’s investigation substantiated Kindred’s allegation of missing narcotics, but
DHHS concluded that the records “could not prove it was the result of one person and
medication errors continued after Ms. Murray’s termination.” ECF No. 21-1 at 6466. Accordingly, the consent agreement did not find, and Murray did not admit, that
she had diverted residents’ medications as Kindred had suspected.
While admitting to having made documentation errors, Murray contends that
the real reason her employment ended was in retaliation for reports she had made to
Guptill of her suspicions that another nurse (hereinafter, “Nurse D”) was under the
influence of drugs while at work. ECF No. 31 at 16. Murray asserts that Guptill took
no action in response to the reports. Id. at 3-4. By her amended complaint, Murray
alleges that she was unlawfully discriminated against by Kindred in violation of the
Maine Whistleblower Protection Act, 26 M.R.S. § 833 (2013), in retaliation for her
having reported conditions that negatively impacted the care of the facility’s residents.
ECF No. 1 at 2-3.
Kindred’s motion for summary judgment has two prongs.
First, Kindred
contends that Murray is judicially estopped from pursuing her whistleblower
retaliation claim because she failed to amend her bankruptcy schedules to disclose
the existence of the claim in her Chapter 13 bankruptcy case which was initiated in
May 2009 and remains pending. ECF No. 22 at 5-12. Second, Kindred argues that
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summary judgment is appropriate on Murray’s retaliation claim because she cannot
demonstrate a causal connection between her alleged protected activity—her reports
to Guptill regarding Nurse D—and her termination, either at the prima facie stage
or to establish that Kindred’s stated reason for her termination was pretextual. Id.
at 12-18.
II. LEGAL ANALYSIS
I proceed by (A) considering the applicable summary judgment standards, and
then turning to (B) the applicability of judicial estoppel, and (C) whether Kindred is
entitled to summary judgment on the merits of Murray’s whistleblower retaliation
claim.
A.
SUMMARY JUDGMENT STANDARD
1. Federal Rule of Civil Procedure 56
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir.
2014). “A dispute is genuine if ‘the evidence about the fact is such that a reasonable
jury could resolve the point in favor of the non-moving party.’” Johnson v. University
of Puerto Rico, 714 F.3d 48, 52 (1st Cir. 2013) (quoting Thompson v. Coca-Cola Co.,
522 F.3d 168, 175 (1st Cir. 2008)). “A fact is material if it has the potential of
determining the outcome of the litigation.” Id. (quoting Maymi v. P.R. Ports Auth.,
515 F.3d 20, 25 (1st Cir. 2008)).
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The party moving for summary judgment must demonstrate an absence of
evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). In determining whether this burden is met, the court must view the
record in the light most favorable to the nonmoving party and give that party the
benefit of all reasonable inferences in its favor. Johnson, 714 F.3d at 52. Once the
moving party has made a preliminary showing that no genuine issue of material fact
exists, the nonmovant must “produce specific facts, in suitable evidentiary form, to
establish the presence of a trialworthy issue.” Brooks v. AIG SunAmerica Life Assur.
Co., 480 F.3d 579, 586 (1st Cir. 2007) (citing Clifford v. Barnhart, 449 F.3d 276, 280
(1st Cir. 2006)); Fed. R. Civ. P. 56(c). “As to any essential factual element of its claim
on which the nonmovant would bear the burden of proof at trial, its failure to come
forward with sufficient evidence to generate a trialworthy issue warrants summary
judgment to the moving party.” In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (citation
and internal punctuation omitted).
2. Local Rule 56
The evidence that the court may consider in deciding whether genuine issues
of material fact exist for purposes of summary judgment is circumscribed by the local
rules of this district. See Loc. R. 56. The moving party must first file a statement of
material facts that it claims are not in dispute. See Loc. R. 56(b). Each fact must be
set forth in a numbered paragraph and supported by a specific record citation. See
id. The nonmoving party must then submit a responsive “separate, short, and concise”
statement of material facts in which it must “admit, deny or qualify the facts by
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reference to each numbered paragraph of the moving party’s statement of material
facts[.]”
Loc. R. 56(c).
The nonmovant likewise must support each denial or
qualification with an appropriate record citation. See id. The nonmoving party may
also submit its own additional statement of material facts that it contends are not in
dispute, each supported by a specific record citation. See id. The movant then must
respond to the nonmoving party’s statement of additional facts, if any, by way of a
reply statement of material facts in which it must “admit, deny or qualify such
additional facts by reference to the numbered paragraphs” of the nonmovant’s
statement. See Loc. R. 56(d). Again, each denial or qualification must be supported
by an appropriate record citation. See id.
Local Rule 56 directs that “[f]acts contained in a supporting or opposing
statement of material facts, if supported by record citations as required by this rule,
shall be deemed admitted unless properly controverted.” Loc. R. 56(f). In addition,
“[t]he court may disregard any statement of fact not supported by a specific citation
to record material properly considered on summary judgment” and has “no
independent duty to search or consider any part of the record not specifically
referenced in the parties’ separate statement of fact.” Id.; see also, e.g., Borges, ex rel.
S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010); Fed. R. Civ. P. 56(e)(2) (“If a
party fails to properly support an assertion of fact or fails to properly address another
party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact
undisputed for purposes of the motion[.]”).
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B.
JUDICIAL ESTOPPEL
1. Procedural Background
Murray and her husband initiated their Chapter 13 bankruptcy case in May
2009. ECF No. 31 at 11. As confirmed, the Murrays’ Chapter 13 plan required that
they make monthly payments of $440 for a term of 60 months, toward their secured
debts. ECF No. 23 at 10. The Plan also directed the Trustee to pay $2,063.45 of the
$80,781.20 in unsecured claims.
ECF No. 23 at 10, ¶ 69. In September 2013, the
Murrays moved the Bankruptcy Court to approve a modification of their mortgage
loan in order to “allow the Debtors to retain their home as the mortgage payments
will be lower.” ECF No. 23-1 at 26, ¶ 4. The court granted the motion by an order
dated September 18, 2013. Id. at 28.
This action against Kindred was initiated when Murray filed her complaint
with the Maine Superior Court in August 2013, and Kindred removed the action to
Federal Court in September 2013. ECF No. 31 at 11. Murray’s failure to disclose her
claim against Kindred to the Bankruptcy Court first surfaced during her deposition
in this case held in January 2014. ECF No. 21-1 at 36. Murray was asked whether
her mortgage lender had initiated foreclosure proceedings against her, to which
Murray responded that she was currently “in Chapter 13.” Id.
In March 2014, Kindred’s counsel informed Murray’s counsel that he believed
that Murray’s whistleblower claim was barred by the doctrine of judicial estoppel.
ECF No. 26-2, at 2. Soon thereafter, Murray’s bankruptcy attorney notified Peter
Fessenden, the Bankruptcy Trustee, of the existence of this action. In response,
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Fessenden estimated that if Murray recovered money as a result of her claim against
Kindred, and absent additional attorney fees associated with this action, he expected
that approximately $60,000 would be required to “fulfill all Chapter 13
requirements[,]” with any recovery above that amount going to Murray. ECF No. 271, at 1.
Kindred filed its motion for summary judgment on May 21, 2014. See ECF No.
22.
Murray filed an amended Schedule B to her Chapter 13 petition in the
Bankruptcy Court on June 10, 2014, which formally identified the whistleblower
claim as an asset of her bankruptcy estate. ECF No. 27-2. In her affidavit filed on
June 11, 2013, in opposition to Kindred’s motion for summary judgment, Murray
stated: “I had no idea of the need to disclose [this] present lawsuit to the Bankruptcy
Court. I had absolutely no intent to ever conceal the present lawsuit as an asset to
the Bankruptcy Court.” ECF No. 30 at 3.
2. The Parties’ Arguments
Kindred bases its judicial estoppel argument on Murray’s failure to disclose
her whistleblower claim to the U.S. Bankruptcy Court by failing to amend her filings
in the Chapter 13 proceeding once she first became aware of her claim against
Kindred at the time of her termination in March 2012. ECF No. 22 at 6-7. Because
Murray’s bankruptcy estate consists not only of non-exempt property she had as of
the commencement of the bankruptcy, but also after-acquired property, Murray was
under an “absolute duty to report whatever interests [she] hold[s] in property” and to
amend her bankruptcy schedules as her circumstances changed. See Wood v. Premier
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Capital, Inc. (In re Wood), 291 B.R. 219, 226 (B.A.P. 1st Cir. 2003). Kindred asserts
that Murray’s failure to amend her asset schedules to disclose her whistleblower
claim, and her simultaneous pursuit of the claim in this court, are directly
inconsistent positions. ECF No. 22 at 7-8.
Kindred further contends that the Bankruptcy Court necessarily accepted
Murray’s “position taken in the form of omissions from bankruptcy schedules,” Guay
v. Burack, 677 F.3d 10, 18 (1st Cir. 2012), as Murray’s Chapter 13 Plan remained in
effect and failed to account for this action as a potentially valuable asset, even after
Murray filed it in August 2013, and obtained additional relief from the Bankruptcy
Court in September 2013. ECF No. 22 at 8-10. Kindred contends that judicial
estoppel should be applied because Murray “stood to gain an unfair advantage by
concealing this claim from her creditors.” Id. at 10.
Murray does not dispute that she failed to amend her Chapter 13 asset
schedules prior to June 2014. She argues that judicial estoppel is unwarranted
because she acted unintentionally, there was no resulting prejudice to the bankruptcy
proceeding, and, if judicial estoppel is imposed, her bankruptcy estate will lose a
potentially valuable asset—any recovery resulting from this action—to the detriment
of her unsecured creditors, and Kindred will receive a windfall in the form of the
dismissal of this action without having had to defend it on the merits. ECF No. 31 at
18-19.
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3. Elements of Judicial Estoppel
As the parties agree, the First Circuit’s decision in Guay v. Burack, supra,
provides the framework for analyzing Kindred’s claim of judicial estoppel. In that
case, the Guays, a married couple, filed a Chapter 11 bankruptcy proceeding in
September 2008 that was converted to a Chapter 7 proceeding in June 2009. Id. at
13. In June and July 2009, the Guays filed separate suits under 42 U.S.C. § 1983
against a state police detective and other defendants in federal court. Id. at 14. The
Guays failed to disclose the existence of the federal suits in the Bankruptcy
proceeding until January 2010 in a report of unpaid Chapter 11 claims. Id. at 14-15.
The Chapter 7 Trustee filed a notice abandoning the lawsuits as burdensome and of
inconsequential value to the estate. None of the Guays’ creditors objected. Id. at 15.
In November 2010, the District Court, adopting the recommended decision of the
magistrate judge, granted summary judgment against the Guays on the basis of
judicial estoppel for their failure to disclose their claims in their bankruptcy
proceeding. Id.
The First Circuit affirmed the grant of summary judgment, explaining that
judicial estoppel prevents “a litigant from pressing a claim that is inconsistent with
a position taken by that litigant either in a prior legal proceeding or in an earlier
phase of the same legal proceeding.” Id. at 16 (quotations omitted). Judicial estoppel
“safeguard[s] the integrity of the courts by preventing parties from improperly
manipulating the machinery of the justice system[, and a] party is not automatically
excused from judicial estoppel if the earlier statement was made in good faith.” Id.
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(quotations omitted).
The court identified two required, and one discretionary
conditions relevant to the application of the judicial estoppel:
There are two generally agreed-upon conditions for the
application of judicial estoppel. First, the estopping position and the
estopped position must be directly inconsistent, that is, mutually
exclusive. Second, the responsible party must have succeeded in
persuading a court to accept its prior position. There is also a third oftconsidered factor that asks whether the party seeking to assert an
inconsistent position would derive an unfair advantage or impose an
unfair detriment on the opposing party if not estopped. We generally
have not required a showing of unfair advantage. Where unfair
advantage exists, however, it is a powerful factor in favor of applying
the doctrine.
Id. at 16-17 (citations and quotations omitted). The court specifically observed, “it is
well-established that a failure to identify a claim as an asset in a bankruptcy
proceeding is a prior inconsistent position that may serve as the basis for application
of judicial estoppel, barring the debtor from pursuing the claim in a later proceeding.”
Id. at 17 (quotations omitted).
a. Adoption of Inconsistent or Mutually Exclusive Positions
Applying the Guay conditions here, there is no doubt that Murray adopted
mutually exclusive positions in her bankruptcy proceeding and in this action by her
failure to disclose the existence of her whistleblower claim in her bankruptcy
proceeding at or near the time it arose in March 2012, and again when she filed her
charge of discrimination with the Maine Human Rights Commission in August 2012.
Murray’s failure to amend her asset schedules to disclose the whistleblower
retaliation claim to the Bankruptcy Court prior to June 2014, and her formal pursuit
of that claim beginning with her complaint to the Maine Human Rights Commission
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in August 2012, were directly inconsistent positions that satisfy the first condition of
judicial estoppel.
b. Judicial Acceptance of the Prior Position
A bankruptcy court is considered to have accepted “a position taken in the form
of omissions from bankruptcy schedules when it grants the debtor relief, such as
discharge, on the basis of those filings.” Guay, 677 F.3d at 18. Judicial acceptance of
a party’s prior position does not require “that the party against whom the judicial
estoppel doctrine is to be invoked must have prevailed on the merits. Rather, judicial
acceptance means only that the first court has adopted the position urged by the party,
either as a preliminary matter or as part of a final disposition.” Reynolds v. Comm’r
of Internal Revenue, 861 F.2d 469, 473 (6th Cir. 1988) (internal quotations omitted).
“[W]hen a bankruptcy court—which must protect the interests of all creditors—
approves a payment from the bankruptcy estate on the basis of a party’s assertion of
a given position, that . . . is sufficient judicial acceptance to estop the party from later
advancing an inconsistent position.” White v. Wyndham Vacation Ownership, Inc.,
617 F.3d 472, 479 (6th Cir. 2010) (internal quotations omitted).
Here, Murray’s Chapter 13 bankruptcy plan was confirmed by the Bankruptcy
Court in August 2009 based upon her and her husband’s assets and income at that
time, ECF No. 23-1 at 4, and was not subject to reconsideration based on the accrual
of her claim against Kindred in March 2012. See ECF No. 23-1. As was true in Guay,
Murray’s informal notification to the Bankruptcy Trustee of the claim in March 2014
did not relieve her of her duty to amend her asset schedules filed with the Bankruptcy
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Court. By failing to inform the Bankruptcy Court of her action against Kindred,
Murray effectively received bankruptcy relief in reliance on an earlier inconsistent
statement.
She received additional relief from the Bankruptcy Court, again in
reliance on her inconsistent statement, when she moved for and received the
Bankruptcy Court’s approval to modify her mortgage loan without having disclosed
the existence of this lawsuit, which had been filed the month before.
c. Unfair Advantage or Unfair Detriment
As explained in Guay, the third factor—whether the party seeking to assert an
inconsistent position would derive an unfair advantage or impose an unfair detriment
on the opposing party if not estopped—is not a required element, but is appropriately
considered. Guay at 16. Kindred contends that Murray stood to gain an unfair
advantage by concealing this claim from her creditors because she placed herself in a
position to retain any benefit, such as a settlement payment or judgment, to the
detriment of the bankruptcy estate and the unsecured creditors. ECF No. 22 at 10.
This unfairness was never realized, however, because Murray disclosed the existence
of this suit to the Bankruptcy Court before any actual benefit arose. See ECF No. 291. Accordingly, Murray does not stand to receive an unfair advantage if judicial
estoppel is not applied.
d. Other Equitable Considerations and Conclusion
Murray stresses that it would be inequitable to apply judicial estoppel on the
facts presented because she did not know that she had a duty to disclose this action
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to the Bankruptcy Court and, therefore, her adoption of inconsistent positions was
unintentional. ECF No. 31 at 19.
As framed in Guay, the required conditions giving rise to judicial estoppel do
not explicitly include whether the party’s adoption of an inconsistent position was
intentional, and the opinion observed that “deliberate dishonesty is not a prerequisite
to application of judicial estoppel.”
677 F.3d at 20, n.7 (1st Cir. 2012) (citing
Schomaker v. United States, 334 Fed. Appx. 336, 340 (1st Cir. 2009)). Other courts
have recognized that the “intentional contradictions, not simple error or inadvertence”
are required. Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1275 (11th Cir. 2010)
(quoting Am. Nat’l Bank of Jacksonville v. FDIC, 710 F.3d 1528, 1537 (11th Cir. 1983);
see also Ah Quin v. County of Kauai Dep’t of Transp., 733 F.3d 267, 276-77 (9th Cir.
2013). In Ah Quin, a divided panel of the Ninth Circuit concluded that where a
plaintiff-debtor fails to disclose a lawsuit in its bankruptcy petition, courts “must
determine whether the omission occurred by accident or was made without intent to
conceal [and the] relevant inquiry is not limited to the plaintiff’s knowledge of the
pending claim and universal motive to conceal a potential asset.” Id.; but see In re
Coastal Plains, Inc., 179 F.3d 179, 210 (5th Cir. 1999) (concluding that “the debtor’s
failure to satisfy its statutory duty is ‘inadvertent’ only when, in general, the debtor
either lacks knowledge of the undisclosed claims or has no motive for their
concealment.”).
In Guay, the Court also explicitly raised, but left unanswered whether parties
“who fail to identify a legal claim in bankruptcy schedules may escape the application
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of judicial estoppel if they can show that they ‘either lack[ed] knowledge of the
undisclosed claims or ha[d] no motive for their concealment.” Guay, 677 F.3d at 20
(quoting Eastman v. Union Pac. R.R. Co., 493 F.3d 1151, 1157 (10th Cir. 2007)). The
Court noted, however, that the District Court had found that the plaintiffs had a
“motive to conceal” their civil lawsuits from the Bankruptcy Court, and that the
District Court had “analogized the Guays’ conduct to that of the debtors in Payless
Wholesale Distribs., Inc. v. Alberto Culver (P.R.) Inc., 989 F.2d 570, 571 (1st Cir. 1993).”
Guay at 20, n.8.
In Payless, the plaintiff sought Chapter 11 Bankruptcy relief from its creditors
making no mention of its claims against the defendants, and then, two years later
filed a complaint against the defendants asserting that its bankruptcy was “‘a direct
result of the conspiratorial acts of defendants.’” 989 F.2d at 571. The Court observed
that “[e]ven a cursory examination of the claims shows that defendants should have
figured in both aspects of the Chapter 11 proceedings, and that Payless could not
have thought otherwise. The brazenness of its ambivalence is illustrated by its
present assertion that the statute of limitations had not run because it had been
tolled by the pendency of the Chapter 11.” Id. Judicial estoppel was required in view
of what was described as “an unacceptable abuse of judicial proceedings.” Id. See
also Schomaker v. U.S., 334 Fed. Appx. 336, 339-340 (1st Cir. 2009) (upholding
judicial estoppel where plaintiff had claimed in his bankruptcy petition that a
computer was exempt property because it was subject to civil forfeiture by the Federal
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government, and then sought damages against the Federal government based on its
seizure of the computer).
Judicial estoppel is a discretionary remedy.
Guay at 15-16.
Payless
demonstrates that when weighing whether an equitable remedy such as judicial
estoppel should be applied, it is difficult to avoid examining the nature and extent of
the offending party’s culpability. 989 F.2d 570. Whether a plaintiff-debtor made an
innocent mistake or an intentional omission may take on added significance where
there will be no unfair benefit or detriment if judicial estoppel is denied. Simple
fairness suggests that a court entertaining the dismissal of a potentially meritorious
claim on the basis of judicial estoppel should not turn a blind eye to whether the
plaintiff-debtor’s failure to disclose an after-acquired claim was intentional or not.
In this case, the two core conditions for judicial estoppel—an inconsistent
position and judicial reliance—are demonstrated. If that were the end of the analysis,
Murray’s complaint would properly be dismissed. However, I also conclude that no
unfair benefit or detriment will flow from the denial of judicial estoppel. In addition,
there is no direct evidence demonstrating that Murray’s failure to disclose was
intentional, nor am I persuaded that, on this record before me, there is sufficient
evidence from which to infer intentional conduct on her part. Because I conclude that
it would be unjust to dismiss Murray’s complaint on the basis of judicial estoppel, I
decline to do so.
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C.
MURRAY’S WHISTLEBLOWER RETALIATION CLAIM
To prevail on a claim of unlawful retaliation under the Whistleblower
Protection Act (“WPA”), Murray must prove 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, 2011 ME 99, ¶ 24, 28 A.3d 610; see also
Winslow v. Aroostook County, 736 F.3d 23, 30 (1st Cir. 2013). Summary judgment
motions involving WPA claims are evaluated with the “shifting burdens” analysis set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Thus, once Murray
presents prima facie evidence of the three elements, Kindred assumes the burden of
producing prima facie evidence of a legitimate, non-retaliatory reason for her
discharge, after which the burden returns to Murray to produce prima facie evidence
that the reason offered by Kindred is pretextual. See Fuhrmann v. Staples the Office
Superstore East, Inc., 2012 ME 135, ¶ 13, 58 A.3d 1083; Stanley v. Hancock County
Comm’rs, 2004 ME 157, ¶ 14, 864 A.2d 169.
Kindred acknowledges that, for purposes of summary judgment, there are
triable issues of fact concerning the first two of the three elements of Murray’s claim:
That she engaged in protected activity by allegedly reporting her concerns about
Nurse D to her supervisor, Dawn Guptill, and that her termination is an adverse
employment action. ECF No. 22 at 13. Kindred contends that summary judgment is
appropriate because Murray cannot demonstrate a causal connection between her
alleged protected activity and her termination at the prima facie stage, and that she
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cannot establish that Kindred’s legitimate reason for her termination was pretextual.
Id. at 13-14, 18.
1. Causal Connection Between the Protected Activity and the
Adverse Employment Action
To demonstrate a causal connection, Murray must show that her reports
regarding Dube were a “substantial factor” or a “motivating factor” in the elimination
of her position. See Walsh, 2011 ME 99, ¶ 24, 28 A.3d 610 (citing Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Stanley, 2004 ME 157, ¶¶
12, 24, 864 A.2d 169; see also Wells v. Franklin Broadcasting Corporation, 403 A.2d
771, 773 (Me. 1979) (stating that the inquiry in an employment discrimination claim
is whether the discrimination itself “was a substantial, even though perhaps not the
only, factor motivating the employee’s dismissal.”). Proof by an employer of other
reasonable grounds for an employee’s termination does not relieve the employer from
liability, but “the protected whistleblowing activity must be a but-for cause of the
employer’s decision to terminate employment.” Caruso v. The Jackson Laboratory,
2014 ME 101, ¶ 17, --- A.3d ---; (citing Walsh, 2011 ME 99, ¶ 25) (equating “the
motivating factor” and “substantial factor” standard with “but-for” causation under
WPA).
Temporal proximity alone is sufficient “to meet the relatively light burden of
establishing a prima face case of retaliation.” Halkett v. Corr. Med. Servs., Inc., 763
F. Supp.2d 205, 222 (D. Me. 2011) (collecting cases regarding the sufficiency of
temporal proximity in establishing a prima facie case of retaliation”). In addition,
the employer’s alleged nondiscriminatory reason for taking an adverse employment
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action is not considered when assessing the employee’s prima facie case. “To do so
would bypass the burden-shifting analysis and deprive the plaintiff of the opportunity
to show that the nondiscriminatory reason was in actuality a pretext designed to
mask discrimination.” Velez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441, 448
(1st Cir. 2001) (quotation omitted).
The Law Court has held that a temporal proximity of less than two months
between the protected activity and the adverse employment action is sufficient to
satisfy the causal link element at the prima facia stage. Fuhrmann, 2012 ME 135, ¶
16, 58 A.3d 1083. Here, the last protected activity alleged by Murray—her final
report regarding Nurse D to Guptill—took place about a week before her termination.
ECF No. 23 at 8, ¶ 54. Based on the temporal proximity between Murray’s last
alleged protected activity and the termination of her employment, Murray satisfies
the third required prima facie element.
2. Kindred’s Legitimate, Non-Retaliatory Reason for Murray’s
Termination
It is equally apparent that Kindred has met its burden of producing evidence
of a legitimate, non-retaliatory reason for Murray’s termination. The evidence, which
is largely undisputed, shows that Guptill received reports and reviewed records that
gave her a basis to conclude that Murray had diverted Oxycodone and/or failed to
properly document the administration of Oxycodone to several residents.1 In addition,
Guptill observed that Murray was the only nurse to have documented administering pain medication
to a Kindred resident (“Resident 1”) between Monday, February 20 and Friday, March 9, 2012. ECF
No. 22 at 3, ¶ 20. In addition, Murray documented that she had administered Oxycodone to another
resident (“Resident 2”) on March 8, 2012 at 5:30 p.m., but Resident 2 denied having received that
1
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Murray acknowledges that her documentation regarding the administration and
handling of those medications was substandard and warranted the discipline imposed
by the Board of Nursing. ECF No. 21-1 at 64-66. The burden therefore returned to
Murray to produce prima facie evidence that the reason offered by Kindred is a
pretext for unlawful retaliation.
3. Evidence of Pretext
Murray asserts that a reasonable fact-finder might disbelieve the lawful, nondiscriminatory reason given by Kindred for several reasons in addition to the
temporal proximity between her alleged whistleblowing and her termination. See
Hodgens v. General Dynamics Corp., 144 F.3d 151, 170 (1st Cir. 1993) (recognizing
“that temporal proximity may give rise to a ‘suggest[ion] of retaliation,’ [but] that
‘suggest[ion]’ is not necessarily conclusive[, and] that it is the employee’s burden to
show pretext, sufficient to survive summary judgment.”).
First, Murray contends that Kindred’s explanation for why it terminated her
has been inconsistent because she was originally told that she was terminated for
“drug diversion,” but Kindred has also characterized the reason as “suspected drug
medication. Id. at 4, ¶¶ 22, 23. Murray documented administering another resident (“Resident 3”)
medication at 18:00 (6:00 p.m.), at least three hours after Resident 3’s discharge earlier that day. Id.,
¶ 26. Murray documented administering medication to another resident (“Resident 4”) on February
2, 2012, but the two prior entries by other nurses showed that Resident 4 had received medication on
February 3 and 4, meaning that Murray’s documentation was out of sequence and she had to have
recorded the February 2 administration on or after February 4. Id. at 5, ¶ 30. Murray documented
having “punched” medication in error without obtaining the required second signature and without
indicating what was done with the wasted medication. Id. at 4-5, ¶ 27. In addition, Guptill observed
that Murray’s signature varied on documentation and that Murray had altered administration times
on resident records. Id. at 5, ¶ 28.
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diversion.” ECF No. 31 at 15. These explanations may be distinct, but they are not
substantially different and do not provide a reasoned basis for a finding of pretext.
Second, Murray contends that the information relied upon by Dawn Guptill to
conclude that Murray had diverted drugs is “extremely weak [and] filled with
disputed facts, such as the mental stability of Residents 1 and 2.” Id. at 15-16. She
contends that although Guptill testified that Residents 1 and 2 were alert and
oriented, she “has submitted evidence that Resident’s 1 and 2 were not alert and
orientated.
A jury could thus view the evidence as severely undermining the
assertion that Plaintiff engaged in drug diversion and thus further evidence of
pretext.” Id. at 16. Contrary to this contention, however, Murray testified at her
deposition that Residents 1 and 2 were both alert at times and not alert at other times.
ECF No. 21-1, at 31. Thus, Murray’s own testimony does not support her assertion
that neither Resident 1 nor Resident 2 could have been sufficiently alert to provide
information upon which Guptill relied. Even if Residents 1 and 2 were mistaken
when they denied having received medication from Murray, there is no evidence
which shows that Guptill was compelled to disbelieve them.
Third, Murray contends that “[a] trier of fact could thus reasonably conclude
that the drug diversion allegation is weak and further evidence of pretext.” ECF No.
31 at 16. Murray’s characterization of her documentation practices as merely “sloppy”
contradicts the undisputed fact that she entered into a consent agreement with the
Maine Board of Nursing in which she admitted that her documentation practices
20
violated State licensing laws, and that she was properly disciplined on that basis. See
ECF No. 21-1 at 64-65.
Fourth, Murray asserts that a reasonable fact-finder might find Kindred’s
explanation for her termination to be pretextual because the investigation performed
by DHHS did not substantiate Kindred’s conclusion that Murray had diverted drugs.
ECF No. 31 at 16. The DHHS investigation did not exonerate Murray, however, but
instead concluded that because there was evidence of drugs being diverted at
Kindred’s facility after Murray was terminated, the investigator did not find
sufficient evidence to conclude that Murray had committed any or all of the earlier
diversions.
ECF No. 21-2 at 15.
Most importantly, for purposes of summary
judgment, the fact that the diversion of drugs continued after Murray’s termination
is information that could not have been known by Guptill at the time she terminated
Murray and does not, therefore, suggest that her stated conclusion was knowingly
false and, therefore, a pretext for retaliation.
Fifth, Murray contends that evidence that Guptill took no actions in response
to her suspicions that Nurse D was working under the influence of drugs, could lead
a jury to reasonably conclude that Guptill terminated her employment in order to
protect Nurse D. ECF No. 31 at 16. Guptill explained that she took no action because
she never received most of the reports Murray claims to have made to her. ECF No.
25 at 3, ¶ 17. However, accepting Murray’s contentions as true, there is no reasonable
inference that can be drawn connecting Murray’s reports regarding Nurse D, to
Guptill’s decision to terminate Murray.
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The only indication in the summary
judgment record that suggests a connection between Murray’s termination and
Guptill’s alleged failure to act in response to Murray’s reports about Nurse D, appears
in paragraph 57 of Kindred’s Statement of Undisputed Material Facts, in which
Murray admitted: “Plaintiff speculated at her deposition that Ms. Guptill may have
wanted to protect [Nurse D] because she was the only second shift supervisor.” ECF
No. 23 at 9, ¶ 57. Speculation is, however, an insufficient basis to avoid summary
judgment. In opposing summary judgment, “a nonmovant cannot rely merely upon
conclusory allegations, improbable inferences, and unsupported speculation[,]” Pina
v. The Children’s Place, 740 F.3d 785, 796 (1st Cir. 2014) (internal quotations omitted).
Furthermore, “conjecture cannot take the place of proof in the summary judgment
calculus.” Id. at 799 (quoting Bennett v. Saint-Gobain Corp., 507 F.3d 23, 31 (1st Cir.
2007). Here, there is no evidentiary basis from which a fact-finder could rationally
infer that Guptill would fabricate a case of drug diversion against Murray in order to
protect Nurse D because Nurse D was the only second shift supervisor. Such an
inference assumes, without any factual support, that there was no other nurse
available to replace Nurse D on a temporary or permanent basis. In short, the
inferential leap required to connect Murray’s termination to Guptill’s failure to take
disciplinary action against Nurse D is far too great and, therefore, unreasonable.
Sixth, Murray contends that evidence that Guptill refused to meet with her in
person after informing her by telephone that she was terminated, is evidence of
discriminatory animus. ECF No. 31 at 16. There is no other evidence from which a
fact-finder might conclude that Guptill’s refusal to meet with Murray, an employee
22
she had just terminated, was unreasonable, or that Kindred treated Murray’s
termination any differently from the termination of other employees suspected of
diverting drugs.
Finally, Murray asserts that the medical records contained additional illegible
and inconsistent entries made by other nurses, and that there is no evidence Kindred
disciplined other nurses on this basis. Id. Murray does not identify, however, which
other entries qualify as illegible and inconsistent; whether they relate to the
administration of narcotic medications; and whether, as was the case with Murray,
the entries qualify as violations of professional licensing standards.
IV. CONCLUSION
For the foregoing reasons, Kindred’s Motion for Summary Judgment is GRANTED.
SO ORDERED.
DATED THIS 8TH DAY OF September, 2014
/s/ Jon D. Levy
United States District Judge
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