Dubeau v. Dartmouth Hitchcock Medical Center et al

Filing 32

ORDER granting 18 Motion for Summary Judgment as to Count One and Count Two is dismissed. Signed by District Judge J. Garvan Murtha on 5/25/2012. (kak)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
ALAN A. DUBEAU,

:
:
Plaintiff,
:
:
v.
: File No. 1:11-cv-255-jgm
:
DARTMOUTH HITCHCOCK MEDICAL CENTER :
and MARY HITCHCOCK MEMORIAL
:
HOSPITAL,
:
:
Defendants.
:
__________________________________ :
RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(Doc. 18)
Defendants Dartmouth Hitchcock Medical Center (“DHMC”) and
Mary Hitchcock Memorial Hospital (“MHMH”) move for summary
judgment (Doc. 18) on the first two of five counts asserted in
Plaintiff Alan A. Dubeau’s Amended Complaint (Doc 26).

For the

reasons that follow, Defendants are entitled to summary judgment
on Count One, which alleges illegal retaliation under Vermont’s
whistleblower protection statute, title 21, section 507 of the
Vermont Statutes Annotated.

Because Dubeau represents he does

not intend to pursue Count Two, which alleges negligent and
intentional infliction of emotional distress, Count Two will be
dismissed.
I.

BACKGROUND
Mr. Dubeau, who resides in Woodstock, Vermont, was employed

by Mary Hitchcock Memorial Hospital in the Central Sterile
Reprocessing (“CSR”) department from May 17, 2001 to January 6,

2012.

(Dubeau Aff. ¶ 1 (Doc. 28-2); King Decl. ¶ 5 (Doc. 18-4).)

MHMH is a hospital in Lebanon, New Hampshire and is licensed in
that state.

(King Decl. ¶ 4; Castaldo Decl. ¶ 3 (Doc. 18-3).)

DHMC is a New Hampshire non-profit corporation, with its
principal place of business in Lebanon, New Hampshire.

It

provides a forum for discussion among Dartmouth College, MHMH,
Dartmouth Hitchcock Clinic, and the Vermont Veterans Hospital,
but it is not a hospital, has no corporate or operational control
over any organizations, and no employees.

(Castaldo Decl. ¶¶ 5-

8.)
Dubeau’s Complaint alleges that during his tenure in the
CSR, he became alarmed that the sterilization processes for
reusable medical devices and equipment had become inadequate and
dangerous.

Amended Compl. ¶ 8.

Dubeau complained to superiors

and department heads about mislabeling and ethylene oxide gas
sterilization of human body parts at the Vermont VA Hospital, and
surgical instrument washers running for months without enzymatic
detergent for sterilization, resulting in an outbreak of patient
infections.

He also reported that he would support his

supervisor’s legal action alleging retaliation against her for
reporting similar violations.

Id. ¶¶ 14-22.

Defendants

allegedly did not take action to address the inadequate processes
until September 2011, when they faced an accreditation
inspection. Id. ¶ 24.

Dubeau alleges Defendants retaliated

against him, by ordering him to stop complaining and to cease
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issuing corrective actions to employees, threatening him with
physical harm, wrongfully accusing him of inappropriate sexual
conduct, causing him to relinquish a higher management position,
and, ultimately, firing him.

Id. ¶¶ 27-36.

The Amended

Complaint also alleges the retaliation amounted to either
intentional or reckless infliction of emotional distress.

Id. ¶

40-44.
II.

DISCUSSION
Summary judgment is proper if the record shows “no genuine

dispute as to any material fact” such that the moving party “is
entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

Defendants are entitled to summary judgment on Count One
because neither is subject to the Vermont whistleblower
protection statute.

Section 507 of the statute, which prohibits

health care employers from retaliating against employees for any
of several protected activities, defines an “employer” subject to
the statute as “a hospital as defined in subdivision 1902(1) of
Title 18,” of the Vermont Statutes.
507.

Vt. Stat. Ann. tit. 21, §

Subdivision 1902(1), in turn, defines the term “hospital”

as it is used in the statutory provisions governing licensure of
Vermont hospitals.

Vt. Stat. Ann. tit. 18, § 1902(1).

It is undisputed that neither Defendant is a hospital
licensed in Vermont – DHMC is a New Hampshire non-profit
corporation and not a hospital, and MHMH is a non-profit hospital
licensed in New Hampshire.

Furthermore, Dubeau is employed only
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by MHMH; DHMC is an entity that has no employees.

Defendants

also point out that the legislative history of section 507 makes
clear its enactment was intended to apply only to Vermont
hospitals.

See Defendants’ Br. at 5-6.

There is no indication

the statute has, or is meant to have, an extra-territorial effect
outside Vermont.

Therefore, summary judgment for Defendants on

Count One is proper.
Defendants also seek summary judgment on Count Two, in which
Dubeau asserts he suffered emotional distress as a result of
Defendants’ conduct.

They argue this claim is barred by the New

Hampshire Workers’ Compensation Act.

Plaintiff’s Opposition to

the Motion for Summary Judgment makes no argument in support of
Count Two, and in a footnote, indicates he does not intend to
pursue this claim.

(Doc. 28 at 15.)

Therefore, the Court will

dismiss Count Two.
III. CONCLUSION
Defendants are entitled to summary judgment on Count One,
and Count Two is dismissed.
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 25th
day of May, 2012.
/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge

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