JOHN A. WOODCOCK, JR., Chief Judge.
In an action by a nurse against a hospital alleging a hostile work environment under Title VII and the Maine Human Rights Act, and retaliation under Title VII, the Maine Human Rights Act and the
On August 6, 2009, Tanya Daigle filed a complaint in this Court against Jaroslav P. Stulc and Redington-Fairview General Hospital ("Redington-Fairview"), alleging that Jason Stulc, a physician who was a member of the Medical Staff of Redington-Fairview, has sexually harassed her and that Redington-Fairview provided a hostile work environment for her and retaliated against her by firing her when she complained.
Redington-Fairview contends that it terminated Ms. Daigle's employment because she violated hospital rules, not for impermissible reasons. On November 12, 2010, Redington-Fairview moved for summary judgment. Def.'s Mot. for Summ. J. (Docket #63) (Def.'s Mot.). Ms. Daigle responded on December 17, 2010. Pl.'s Objection to Def.'s Mot. for Summ. J. (Docket #70) (Pl.'s Resp.). Redington-Fairview replied on January 10, 2011. Def. Redington-Fairview Gen. Hosp.'s Reply Mem. in Support of Mot. for Summ. J. (Docket # 80) (Def.'s Reply).
Local Rule 56 requires the parties to present "a separate, short, and concise statement of material facts" with their motion, opposition, and reply. D. Me. Loc. R. 56(b)-(d). Here, Redington-Fairview led off with 202 separate material facts. Def.'s Statement of Undisputed Material Facts ¶¶ 1-202 (Docket # 64) (DSMF). Ms. Daigle responded with 288 additional facts.
That is not all. With few exceptions, each party liberally disputed the other's supposedly undisputed material facts. Of the Defendant's 202 material facts, Ms. Daigle admitted 155, objecting to, qualifying or denying the remaining 47. Of Ms. Daigle's 288 additional facts, Redington-Fairview outright admitted only 57, objecting to, qualifying, or denying all or a portion of the remaining 231. Def. Redington-Fairview Gen. Hosp.'s Resp. to Pl.'s Opposing Statement of Material Fact (Docket #81) (DRPSAMF). When presented with such an unwieldy and contentious record on a motion for summary judgment, the Court is left with few good options. It does not bode well for the movant who must demonstrate that there are no genuine issues of material fact to present such a highly disputatious set of combined facts; by filling the record with hundreds of facts, great and small, and by denying, objecting, or qualifying so much of the non-movant's additional material facts, the movant effectively proves his opponent's point. At the same time, the non-movant's tactical choice to load the record with tangential facts and legal argument in the guise of facts does not create material facts where none exists.
In accordance with the "conventional summary judgment praxis," the Court recounts the facts in the light most favorable to the non-movant's theory of the case, consistent with record support. Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 17 (1st Cir.2002).
Redington-Fairview employed Tanya Daigle as a medical secretary from January 22, 2007 through November 12, 2008. DSMF ¶¶ 15-16; PODSMF ¶¶ 15-16. Redington-Fairview initially employed Ms. Daigle in Redington-Fairview Primary Care, one of its satellite offices and in April 2007, it transferred her to its newly-formed general surgery office. DSMF ¶¶ 16-17; PODSMF ¶¶ 16-17. From April 2007 to September 2007, Ms. Daigle worked in general surgery performing medical assisting work for various locum tenens surgeons as well as certain office managerial duties, and during this period, the general surgery office was staffed exclusively by the locum tenens surgeons and Ms. Daigle. DSMF ¶¶ 18-19; PODSMF ¶¶ 18-19. On September 19, 2007, Redington-Fairview hired Dr. Jaroslav Stulc as a general surgeon, and Dr. Stulc continued to work there until November 21, 2007. DSMF ¶¶ 20-21; PODSMF ¶¶ 20-21; PSAMF ¶ 412; DRPSAMF ¶ 412. Between November 21, 2007 and February 2008, Ms. Daigle helped fill in for other offices as Redington-Fairview recruited a new general surgeon. DSMF ¶ 21; PODSMF ¶ 21. In February 2008, Dr. Shankar, a general surgeon, began working at Redington-Fairview's general surgery office. DSMF ¶ 22; PODSMF ¶ 22. As of February 1, 2008, Redington-Fairview had a medical secretary and a medical assistant working in the general surgery office. DSMF ¶ 23; PODSMF ¶ 23.
The Redington-Fairview witnesses to this case include: 1) Richard Willett, the Chief Executive Officer (CEO) at Redington-Fairview; 2) Dana Kempton, the Chief Financial Officer (CFO) at Redington-Fairview; 3) Deborah Buckingham, the Director of Human Resources at Redington-Fairview; 4) Raymond Leadbetter, the Practice Manager at Redington-Fairview until March 12, 2008 and Ms. Daigle's direct supervisor; 5) Linda Caron, the Practice
Approximately September 1, 2007, Dr. Jaroslav Stulc began working at Redington-Fairview as a locum tenens on a per diem basis. DSMF ¶ 24; PODSMF ¶ 24. From September 1, 2007 to September 19, 2007, his work was exemplary and on September 19, 2007, he began working in Redington-Fairview's general surgery office. DSMF ¶ 24; PODSMF ¶ 24. As a condition of employment, before he became employed at Redington-Fairview, Dr. Stulc applied for membership on its Medical Staff. DSMF ¶ 25; PODSMF ¶ 25. To review his Medical Staff application, Redington-Fairview, through its Medical Staff, verified information about Dr. Stulc, including his education, qualifications, experience, work history, and background, checked with the National Practitioner Data Bank and his previous hospitals, and interviewed him. DSMF ¶ 26; PODSMF ¶ 26.
On June 2, 2007, Dr. Jaroslav P. Stulc applied to the Maine Board of Licensure in Medicine for a license to practice medicine in the state of Maine.
By contrast, in his application for Medical Staff privileges at Redington-Fairview, Dr. Stulc acknowledged that his clinical privileges or employment at a hospital or other facility had been limited, suspended, revoked, or renewed, or made subject to probationary conditions or otherwise adversely affected. PSAMF ¶ 211; DRPSAMF ¶ 211. If Redington-Fairview reviewed both Dr. Stulc's application to the Board of Licensure in Medicine and his application for Medical Staff privileges, it would have known or should have known that he had lied on his application for a medical license. PSAMF ¶ 212; DRPSAMF ¶ 212.
During his interviews and pre-employment meetings, Dr. Stulc advised Messrs. Willett and Kempton and Dr. Renfrew that he had voluntarily obtained treatment for anger management at Trover Regional Medical Center, where he previously worked.
Redington-Fairview Hospital provides all employees with a copy of its sexual harassment policy and it trains all employees on this policy during their initial orientation. DSMF ¶ 30; PODSMF ¶ 30. Further, Redington-Fairview requires all employees to take harassment training through e-learning on an annual basis. DSMF ¶ 31; PODSMF ¶ 31. After Redington-Fairview first hired Ms. Daigle, she was given a copy of the sexual harassment policy, received sexual harassment training, and undertook annual reviews. DSMF ¶¶ 33-35; PODSMF ¶¶ 33-35.
Either during the last week of September or the first week of October, 2007, a few weeks after Dr. Stulc began working at Redington-Fairview, Ms. Daigle began to experience problems with him. DSMF ¶ 36; PODSMF ¶ 36. Her first uncomfortable encounter took place when Dr. Stulc yelled at her and told her not to second guess him when she called to the Hospital to find out when he would return to the office. DSMF ¶ 37; PODSMF ¶ 37. The Monday after the incident, Ms. Daigle reported her concern about Dr. Stulc's verbal abuse to Mr. Leadbetter, her direct supervisor, and Dr. Renfrew, and Mr. Leadbetter assured her that he would address it with the doctor. DSMF ¶¶ 38-39; PODSMF ¶¶ 38-39. Dr. Renfrew asked Ms. Daigle to set up a meeting among Dr. Stulc, Virginia Farley, himself and herself to work out expectations. DSMF ¶ 40; PODSMF ¶ 40.
About one month later, however, Dr. Stulc became upset when Ms. Daigle told him that she could not read a word of what he had written on a form, and he told her she should go back to school. DSMF ¶ 41; PODSMF ¶ 41. Ms. Daigle observed that Dr. Stulc is a very vocal man and he interacted this way with both men and women. DSMF ¶ 42; PODSMF ¶ 42.
On October 10, 2007, while putting change back into Dr. Stulc's desktop drawer, Ms. Daigle discovered printouts of several pornographic images. DSMF ¶ 43; PODSMF ¶ 43. That same day, Ms. Daigle and Ms. Gagnon both found pornography on the hospital computer in Dr. Stulc's office.
Ms. Gagnon also told Mr. Kempton about what she considered to be inappropriate verbal sexual conduct with a male patient, who was being seen for rectal bleeding.
Dr. Stulc was not in the office that day. DSMF ¶ 46; PODSMF ¶ 46. Mr. Kempton and Mr. Leadbetter met with Dr. Stulc, showed him the images, and Dr. Stulc admitted he had printed them. DSMF ¶ 48; PODSMF ¶ 48. Mr. Kempton told Dr. Stulc that Redington-Fairview would not tolerate this type of behavior. DSMF ¶ 49; PODSMF ¶ 49.
On October 12, 2007, Mr. Kempton and Mr. Leadbetter met with both Ms. Daigle and Ms. Gagnon and Mr. Kempton apologized to Ms. Daigle and assured her that the Hospital would not retaliate against her for reporting Dr. Stulc.
Mr. Kempton informed them that Dr. Stulc admitted to looking up pornography during office hours and that he was remorseful. PSAMF ¶ 223; DRPSAMF ¶ 223. On October 12, 2007, Mr. Kempton wrote that he was concerned that Dr. Stulc was viewing pornography at work, even though he expressed remorse, there was "such a disconnect between expressed remorse and something so obviously wrong" as viewing pornography while at work before
At the October 12, 2007 meeting, Ms. Daigle informed Mr. Kempton and Mr. Leadbetter that Dr. Stulc had verbally threatened her and had placed her in fear in her own office.
Mr. Kempton and Mr. Leadbetter met with Dr. Stulc and told him that he must meet with Ms. Daigle and Ms. Gagnon. DSMF ¶ 56; PODSMF ¶ 56. On October 15, 2007, Ms. Daigle and Ms. Gagnon went to Mr. Kempton's office. PSAMF ¶ 224; DRPSAMF ¶ 224. There was no mediator present and Ms. Buckingham was not present either. PSAMF ¶ 224; DRPSAMF ¶ 224. In fact, Ms. Buckingham was not aware of the meeting. PSAMF ¶ 239; DRPSAMF ¶ 239. The meeting took place among Dr. Stulc, Ms. Daigle, Ms. Gagnon, Mr. Kempton, and Mr. Leadbetter. DSMF ¶ 57; PODSMF ¶ 57. Ms. Daigle felt intimidated and found it difficult to speak because there was no mediator or female management personnel present. PSAMF ¶¶ 224, 229; DRPSAMF ¶¶ 224, 229.
At the October 15, 2007 meeting, Dr. Stulc said, "Well, I guess I have been a bad, bad boy" and "I am just a guy."
At the same meeting, however, Dr. Stulc said that he "doesn't like to be second-guessed and cannot have that in my office."
For a few weeks, Dr. Stulc was fine and things went smoothly in general surgery. DSMF ¶ 63; PODSMF ¶ 63. Even so, after the images were found in his drawer, Mr. Kempton made arrangements for Dr. Stulc to meet with a psychologist because he was concerned that even though Dr. Stulc was remorseful, there could have been some underlying issues that precipitated his viewing inappropriate images at work. DSMF ¶ 64; PODSMF ¶ 64.
On October 18, 2007, Dr. Stulc falsely told one of Ms. Daigle's co-workers that Ms. Daigle "obviously didn't know what time the surgeries are, and that is why he is late all of the time."
Sometime after October 15, 2007, Dr. Stulc performed a pre-operative examination on a teenaged female and afterwards, he inappropriately patted her buttocks with his hand.
On October 19, 2007, Ms. Daigle told Mr. Leadbetter, her supervisor, that she had felt intimidated by the circumstances of the October 15, 2007 meeting in Mr. Kempton's office and that she had been under the impression on October 12, 2007, there would be a mediator at that meeting so she could speak freely. PSAMF ¶ 244; DRPSAMF ¶ 244. Mr. Leadbetter replied that "Dr. Stulc is not going anywhere and if [you cannot] work with the doctor," he would "find another position" for her. PSAMF ¶ 244; DRPSAMF ¶ 244.
On October 26, 2007, Dr. Stulc stated in the presence of a 15 year old female while raising his eyebrows, "Boy, they don't make them like that anymore," and "They never made them like that when I was younger." PSAMF ¶ 258; DRPSAMF ¶ 258.
On November 13, 2007, Dr. Renfrew gave Dr. Stulc his five-week review.
On November 14, 2007, Dr. Stulc made rude and inappropriate comments of a sexual nature, and each day thereafter, Dr. Stulc subjected Ms. Daigle to verbal abuse and an uncomfortable work environment.
On November 15, 2007, after Dr. Stulc had written an illegible word on a patient consent form, Ms. Daigle asked him what the word was. PSAMF ¶ 249; DRSAMF ¶ 249. In a degrading tone in front of patients in the waiting area, Dr. Stulc told Ms. Daigle what the word was and loudly stated that she needed to go back to school, embarrassing her in front of the patients. PSAMF ¶ 249; DRSAMF ¶ 249. The problem, however, had been Dr. Stulc's penmanship, not Ms. Daigle's education. PSAMF ¶ 249; DRSAMF ¶ 249.
Also on November 15, 2007, another patient called before her follow-up appointment to state that she was in so much pain due to the procedure Dr. Stulc had performed on November 8, 2007, she had been up all night. PSAMF ¶ 250; DRPSAMF ¶ 250. Upon questioning, the patient said her pain was a 20 on a scale of 1 to 10 and that she was running a fever of 102. PSAMF ¶ 250; DRPSAMF ¶ 250. Ms. Gagnon advised the patient to go to the emergency room. PSAMF ¶ 250; DRPSAMF ¶ 250. When Dr. Stulc arrived, he said that "the whiner baby is in the emergency room." PSAMF ¶ 250; DRPSAMF ¶ 250. When Ms. Daigle told Dr. Stulc and she and Ms. Gagnon had sent the patient to the emergency room because of what she had told them, Dr. Stulc replied that was ridiculous. PSAMF ¶ 250; DRPSAMF ¶ 250.
On November 16, 2007, Dr. Stulc examined a patient for removal of an abscess on her arm. PSAMF ¶ 251; DRPSAMF ¶ 251. After he examined her, he directed that she be scheduled for removal of the abscess during the next week and, after she left, he said that "he could have done the removal that day, but we needed to get the maximum money for visits to the office." PSAMF ¶ 251; DRPSAMF ¶ 251.
On November 20, 2007, Dr. Stulc was again late for his appointments and Ms. Daigle and Ms. Gagnon rearranged his schedule. PSAMF ¶ 252; DRPSAMF ¶ 252. When he arrived, he noticed that his last patient was scheduled for 3:30 p.m. and asked Ms. Daigle to see if the patient could come in early. PSAMF ¶ 252; DRPSAMF ¶ 252. The patient arrived at the office at 2:15 p.m. and was immediately prepped and made ready for the procedure. PSAMF ¶ 252; DRPSAMF ¶ 252. Dr. Stulc was notified that the patient was ready at 2:20 p.m. but he was at his computer and on the phone with his cellular company, trying to have his phone repaired. PSAMF ¶ 252; DRPSAMF ¶ 252. When Ms. Daigle glanced into his office, she observed pornography on his computer screen. PSAMF ¶ 252; DRPSAMF ¶ 252. Dr. Stulc did not enter the procedure room until 3:00 p.m. PSAMF ¶ 252; DRPSAMF ¶ 252. Ms. Daigle reported this conduct to Mr. Leadbetter and she requested a meeting. PSAMF ¶ 253; DRPSAMF ¶ 253. The meeting never took place because it was overtaken by the events of November 21, 2007. PSAMF ¶ 253; DRPSAMF ¶ 253.
On or about November 20, 2007, Ms. Daigle emailed Mr. Leadbetter, describing
On November 21, 2007, two Operating Room (OR) Nurses reported to Gretchen Keaney, the OR manager at Redington-Fairview, that, prior to a surgical procedure, Dr. Stulc had examined a patient's rectal and vaginal area without wearing gloves while the patient was under general anesthesia. DSMF ¶ 85; PODSMF ¶ 85; PSAMF ¶ 285; DRPSAMF ¶ 285. Ms. Keaney reported the incident to Sherry Rogers, the Chief Nursing Office at Redington-Fairview. DSMF ¶ 86; PODSMF ¶ 86. Although Dr. Stulc violated standard precautions and infection control practices, a physical examination was appropriate before surgery. DSMF ¶¶ 87-88; PODSMF ¶¶ 87-88. The nursing staff held the view that Dr. Stulc had violated Jane Doe while she was about to have surgery and they were extremely uncomfortable witnessing Dr. Stulc perform this examination.
Ms. Rogers reported the incident to Dr. Renfrew, who told Dr. Stulc he was never to do that again. DSMF ¶ 89; PODSMF ¶ 89. At Ms. Rogers' recommendation, Redington-Fairview prepared a Patient Event Reporting and Tracking System (PERTS) report regarding the incident. DSMF ¶¶ 90-91; PODSMF ¶¶ 90-91. A PERTS report is a system in place at Redington-Fairview to document, report, trend, and handle unexpected events or events that could have happened. DSMF ¶ 91; PODSMF ¶ 91. The PERTS report did not address sexual misconduct, but addressed the doctor's failure to properly glove himself during the examination. DSMF ¶ 92; PODSMF ¶ 92. According to Redington-Fairview policy, a PERTS report, like the one involving Dr. Stulc, does not warrant administrative leave, disciplinary action, or termination.
Ms. Daigle viewed the incident as sexual abuse. PSAMF ¶ 289; DRSAMF ¶ 289. She recognized the patient as having been an 18 year old female, the same patient whose buttocks Dr. Stulc had patted in the office. PSAMF ¶ 289; DRSAMF ¶ 289. These incidents made Ms. Daigle fear allowing
If a nurse at Redington-Fairview has a sexual harassment complaint, the Hospital protocol dictates that she would go to her direct supervisor, who would then contact Deborah Buckingham, the Director of Human Resources. PSAMF ¶ 320; DRPSAMF ¶ 320. Ms. Buckingham was not made aware of the PERTS report against Dr. Stulc.
On November 21, 2007, Ms. Daigle saw inappropriate images of naked women on Dr. Stulc's computer at the general surgery office. DSMF ¶ 65; PODSMF ¶ 65. Specifically, when she arrived at work at 8:00 a.m., she was required to download dictation from Dr. Stulc from the previous day that was on his computer. PSAMF ¶ 254; DRPSAMF ¶ 254. When she moved the mouse, an image appeared on the screen that showed a woman clad only in a johnny gown, sitting on a table under the caption, "Casual Sex." PSAMF ¶ 254; DRPSAMF ¶ 254. Recalling the "zero tolerance" directive, she called Mr. Leadbetter and asked him to come to the office. PSAMF ¶ 254; DRPSAMF ¶ 254. Mr. Leadbetter observed this image and when he scrolled down the side of the screen, there were several images of nude women and pornography. PSAMF ¶ 254; DRPSAMF ¶ 254.
After Mr. Leadbetter viewed the images, he quickly called the Hospital and told Ms. Daigle and Ms. Gagnon to lock the door and meet him there. DSMF ¶ 68; PODSMF ¶ 68. Ms. Daigle and Ms. Gagnon met Mr. Leadbetter, Ms. Buckingham, Mr. Kempton, and Mr. Willett in Mr. Willett's office the same day. DSMF ¶ 69; PODSMF ¶ 69. At this meeting, Ms. Daigle and Ms. Gagnon not only reported that Dr. Stulc had been looking at pornography on his computer but also voiced concerns about his interactions with patients. DSMF ¶ 70; PODSMF ¶ 70. They mentioned that while Dr. Stulc was in his office
During this November 21, 2007 meeting, Ms. Daigle and Ms. Gagnon reported that things had been going well up to approximately one week before this meeting.
After Redington-Fairview placed Dr. Stulc on administrative leave, Mr. Kempton had the Redington-Fairview Director of Information Technology remove the computer from Dr. Stulc's office and bring it to his office. DSMF ¶ 93; PODSMF ¶ 93. During the week of November 26, 2007, Mr. Kempton viewed nude images on Dr. Stulc's computer but no pornography. DSMF ¶ 94; PODSMF ¶ 94. After Ms. Daigle's and Ms. Gagnon's complaints and after viewing the second batch of sexual images, Mr. Kempton conducted no further investigation and concluded that Dr. Stulc's conduct had been unprofessional. PSAMF ¶¶ 278-279; DRPSAMF ¶¶ 278-279.
Although Ms. Daigle never observed the scope of the sexual images on Dr. Stulc's computer, the Redington-Fairview forensic investigation of the computer revealed numerous additional images of naked women, resulting in a discovery document that showed about four images of naked women on every page of an 847 page exhibit. PSAMF ¶ 263; DRPSAMF ¶ 263.
On November 26, 2007, Ms. Daigle and Ms. Gagnon met separately with Phil Smith, Ph.D., a clinical psychologist, and told him about their experiences with Dr. Stulc.
As of November 26, 2007, Redington-Fairview would have had the contractual right to terminate Dr. Stulc's employment contract. PSAMF ¶¶ 274, 316; DRPSAMF ¶¶ 274, 316. Instead of terminating Dr. Stulc at that point, Redington-Fairview consulted with the group within the Maine Medical Association that deals with impaired physicians. PSAMF ¶ 275; DRPSAMF ¶ 275. After consulting a psychologist and the Maine Medical Association's Physician's Health Program, Mr. Willett and Mr. Kempton urged Dr. Stulc to enroll in a treatment program in Kansas City, Missouri and Dr. Stulc attended the recommended program.
Although Redington-Fairview management thought there was something wrong with Dr. Stulc, they never received a formal diagnosis from him. PSAMF ¶ 265; DRPSAMF ¶ 265. During the time that Redington-Fairview was considering allowing Dr. Stulc to return, the Hospital took into account that he was a gifted surgeon, that it was unusual to recruit a surgeon with such gifts to a rural hospital, that it might be worth the time and expense to give him the chance to turn the situation around, but that to do so would require mentoring, disclosure, and counseling. PSAMF ¶ 281; DRPSAMF ¶ 281. Redington-Fairview never formally determined whether to bring Dr. Stulc back since through Ms. Daigle, it learned information
During Dr. Stulc's administrative leave, the Hospital informed Ms. Daigle that the doctor was "unavailable."
On approximately January 28, 2008, Deborah Buckingham received a letter from Daniel Bates, attorney for Ms. Daigle, advising her that he had filed a charge of sexual harassment on Ms. Daigle's behalf against the Hospital. DSMF ¶ 106; PODSMF ¶ 106. Mr. Bates enclosed documents he had received from Trover reflecting problems Dr. Stulc had experienced there. DSMF ¶ 106; PODSMF ¶ 106. Ms. Buckingham shared the Trover attachment with Mr. Willett; they were each disturbed about this new information. DSMF ¶¶ 108-09; PODSMF ¶¶ 108-09. Although Dr. Stulc had not yet resigned from the Medical Staff at Redington-Fairview, he was no longer practicing there. DSMF ¶ 113; PODSMF ¶ 113.
After reviewing the Trover documents, Mr. Willett became concerned about whether Dr. Stulc had been forthright in his Redington-Fairview application for privileges. DSMF ¶ 114; PODSMF ¶ 114. Dr. Renfrew submitted a request to the President of the Redington-Fairview Medical Staff to appoint an ad hoc committee to investigate the matter, and the President of the Medical Staff appointed an ad hoc committee. DSMF ¶¶ 120-21; PODSMF ¶¶ 120-21. The ad hoc committee met a few times in March 2008, both before and after meeting Dr. Stulc, but on April 17, 2008, before the Medical Staff made a recommendation, Dr. Stulc resigned his Medical Staff membership and Hospital privileges at Redington-Fairview, an act that also terminated his Hospital employment. DSMF ¶¶ 121-22, 125; PODSMF ¶¶ 121-22, 125. On August 4, 2009, Redington-Fairview reported Dr. Stulc's voluntary resignation to the Maine Board of Licensure in Medicine, referring specifically to the fact that he resigned while under investigation for a failure to be forthright in his application for Medical Staff membership.
After Redington-Fairview placed Dr. Stulc on administrative leave, Ms. Daigle was told he was on administrative leave but to tell patients only that he was "unavailable."
In November or December 2007, Redington-Fairview hired Jessica Campbell to assist the office where Ms. Daigle and Ms. Gagnon worked. PSAMF ¶ 330; DRPSAMF ¶ 330. After her five-week performance review by Mr. Leadbetter in late December 2007 or early January 2008, Ms. Campbell returned shaken and annoyed.
After January 2008, Ms. Daigle's mental distress and trauma were such that, every morning at work, she checked the internet to see whether Dr. Stulc was still licensed to practice medicine in the state of Maine, concerned that he might return to the Hospital, renew his unwelcome and hostile conduct and cause her employer to act against her.
After November 26, 2007, when Redington-Fairview placed Dr. Stulc on administrative leave, Ms. Daigle and Ms. Gagnon were moving supplies to a closet and came across several boxes of paperwork and medical manuals and books.
Ms. Daigle retrieved and photocopied certain documents, including the Trover Hospital documents, including assertions
Her attorney later provided the documents to Redington-Fairview, and on February 6, 2008, Ms. Daigle, through her attorney, notified Redington-Fairview that she disclosed the Stulc information to the Maine Board of Licensure in Medicine "pursuant to the immunities and protections of 42 U.S.C. § 11111(a)(2) and 24 M.R.S.A. §§ 2505 and 2511." DSMF ¶¶ 129-30; PODSMF ¶¶ 129-30; PSAMF ¶ 368; DRPSAMF ¶ 368. In the February 6, 2008 letter, Ms. Daigle's attorney quoted a provision in Dr. Stulc's application to the Maine Board of Licensure in Medicine that authorized the release of his information to the Board.
Ms. Buckingham and Mr. Leadbetter met with Ms. Daigle to discuss the fact she had retrieved, copied, and removed documents from the Hospital without informing management.
Ms. Daigle considers Redington-Fairview's actions in imposing discipline against her to be false and contrived.
Mr. Willett, the Hospital CEO, testified that Ms. Daigle was issued a written warning because she did not have any right to go through Dr. Stulc's personal belongings; however, he also said that he would have reported Dr. Stulc to the Maine Board of Licensure in Medicine if Ms. Daigle had made the Hospital aware of these documents before she reported it.
Ms. Buckingham admitted that anyone who discovers information should be able to provide it to the Board of Licensure in Medicine if the information shows that a doctor lied to obtain a license to practice medicine.
In finding the material about Dr. Stulc's prior misconduct and in disclosing the material to the Board of Licensure in Medicine, Ms. Daigle had not violated any written Redington-Fairview policy.
On January 25, 2008, based on information in Dr. Stulc's Trover file that she copied at Redington-Fairview, Ms. Daigle filed a complaint against Dr. Stulc with the Maine Board of Licensure in Medicine. DSMF ¶¶ 138-39; PODSMF ¶¶ 138-39. In the complaint, Ms. Daigle alleged that Dr. Stulc had lied in order to obtain his state of Maine medical license.
Before she filed the complaint, Ms. Daigle did not inform the Hospital that she was planning to file it or that she had obtained information about Dr. Stulc's employment problems at Trover. DSMF ¶ 140; PODSMF ¶ 140. One of the reasons she did not give the Hospital prior knowledge of the complaint is that she was concerned that the Hospital would not pursue the issue with the Maine Board of Licensure in Medicine.
When she first met with Dennis Smith, the Assistant Attorney General who prosecuted the complaint against Dr. Stulc before the Maine Board of Licensure in Medicine, Ms. Daigle informed him about Ms. Keaney's report of what Ms. Daigle considered to be sexual misconduct in the OR that led to the PERTS report.
Redington-Fairview had no dispute with the Board's revocation of Dr. Stulc's license to practice medicine in Maine. PSAMF ¶ 406; DRPSAMF ¶ 406. The Board's revocation of Dr. Stulc's medical license helped protect patients at the Hospital.
On or about January 25, 2008, Ms. Daigle's attorney wrote to Deborah Buckingham, informing her, among other things, that (1) Dr. Stulc had confronted Ms. Daigle angrily after she had complained about his sexual improprieties, by saying "I will not be second guessed!," a threat that Ms. Daigle took as a retaliatory threat against her job; (2) Ms. Daigle feared for her job, and accordingly sought counseling for the stress and mental distress caused by the conduct and presence of Dr. Stulc and the prospect of his return; (3) in reviewing the application of Dr. Stulc with the state of Maine Board of Licensure in Medicine, she had filed a complaint against Dr. Stulc's Maine license to practice medicine; (4) her counselor was extremely concerned over her safety should Dr. Stulc return to the employ of the Hospital, given the records disclosed regarding Dr. Stulc's past, along with the fact she had reported him to the Maine Board of Licensure in Medicine. PSAMF ¶ 366; DRPSAMF ¶ 366.
On January 31, 2008, Ms. Daigle's attorney sent Redington-Fairview's lawyer a letter stating that (1) Ms. Daigle and Ms. Gagnon felt compelled to file with the Maine Human Rights Commission for their job protection as well as for the protection of patients at the Hospital, (2) their disclosure of Dr. Stulc's issues before his employment at the Hospital do not violate the "Confidentiality and Computer Use Statement" Ms. Daigle signed, (3) Ms. Daigle's report and complaint to the Maine Board of Licensure in Medicine of Dr. Stulc's pre-employment documents were handed to the Attorney General's Office and to the Board of Licensure in Medicine for the protection of the patients and employees of the Hospital, (4) the statutes make it clear that both the Hospital and its employees (such as Ms. Daigle and Ms. Gagnon) were absolutely immune from liability by Ms. Daigle's handing over to the Board of Licensure in Medicine the documents she found, and (5) Ms. Daigle would regard any adverse employment consequence against her or Ms. Gagnon to be pretextual.
While Ms. Daigle worked in the general surgery office at Redington-Fairview, she performed some tasks typically performed by office managers; however, she was never formally appointed to the position, never received a change of pay for performing some office manager functions, and there is nothing in her personnel file that states she was employed or evaluated as the office manager of the general surgery office. DSMF ¶¶ 141-44, 146; PODSMF ¶¶ 141-44, 146. Ms. Daigle's job title was never changed to office manager and she did no billing while she was employed at Redington-Fairview. DSMF ¶¶ 147-48; PODSMF ¶¶ 147-48.
At the same time, even though not formally employed as office manager, Ms. Daigle was acting office manager in the remote office where she and Ms. Gagnon worked. PSAMF ¶ 413; DRPSAMF ¶ 413. When Dr. Stulc began working at the Hospital, Mr. Leadbetter introduced Ms. Daigle to him as the office manager. PSAMF ¶¶ 415, 431; DRPSAMF ¶¶ 415, 431. When Dr. Stulc wrote to and testified
When Redington-Fairview expanded the general surgery practice to two physicians, Linda Caron, the Practice Manager, posted an office manager position for the general surgery office. DSMF ¶ 149; PODSMF ¶ 149. Before it posted the position, the Hospital did not inform Ms. Daigle that it was posting the office manager position and Ms. Daigle learned about the positing when a co-employee emailed her about the posting and asked whether she was leaving. PSAMF ¶¶ 426-5, 427, 441; DRPSAMF ¶¶ 426-27, 441. After the posting, Ms. Daigle was told that she could apply for the office manager position and, along with two other candidates, she was interviewed for the position. DSMF ¶¶ 150-52; PODSMF ¶¶ 150-52.
Redington-Fairview did not hire Ms. Daigle for the office manager job; instead, it hired Lisa Rice.
In her performance evaluation dated November 16, 2007, Richard Leadbetter, her supervisor, found that Ms. Daigle had met all her standards. PSAMF ¶ 396; DRPSAMF ¶ 396. Her February 18 through 20, 2008 performance evaluation by Mr. Leadbetter and Ms. Buckingham concluded that two statistics were not met: (1) that Ms. Daigle "ensures patient and hospital confidentiality"; and (2) that Mr. Daigle "maintains confidentiality—assures that guest/hospital confidential information is not discussed outside of job responsibility." PSAMF ¶ 397; DRPSAMF ¶ 397. Both of these statistics were marked as "unmet." PSAMF ¶ 397; DRPSAMF ¶ 397. According to Ms. Buckingham, the only reason Ms. Daigle received "not met" scores was that she had removed information from Dr. Stulc's office that was very highly sensitive and confidential. PSAMF ¶ 398; DRPSAMF ¶ 398.
From February 18, 2008, when she received the written warning, to November 12, 2008, when she was terminated, Ms. Daigle did not receive any warnings or discipline. DSMF ¶¶ 162, 200-01; PODSMF ¶¶ 162, 200-01. During this interval, Ms. Buckingham stated that she received no reports of problems with Ms.
On November 9, 2008, Ms. Daigle was handed an Informed Consent form that had been completed and signed by Dr. Shankar and a patient. DSMF ¶ 165; PODSMF ¶ 165. On the form, Dr. Shankar had listed the surgical procedure of colotomy. DSMF ¶ 166; PODSMF ¶ 166. Ms. Daigle thought the procedure might have been a colostomy and she asked Ms. Gagnon, the Medical Assistant, whether Dr. Shankar might have intended the procedure to be a colostomy; Ms. Gagnon replied that she did not know but suggested that Ms. Daigle ask the doctor. DSMF ¶¶ 167, 169; PODSMF ¶¶ 167, 169. Ms. Daigle did not, however, ask the doctor; instead she added an "s" to the word, changing the procedure from a colotomy to a colostomy. DSMF ¶¶ 167, 170; PODSMF ¶¶ 167, 170. In changing the consent form, Ms. Daigle did not intend to injure the patient. PSAMF ¶ 458; DRPSAMF ¶ 458. She also contacted day surgery at Redington-Fairview and booked a colostomy for the patient, and sent to day surgery the original form, identifying the procedure as a colostomy. DSMF ¶ 174; PODSMF ¶ 174.
There is a radical difference between a colotomy and a colostomy: a colotomy is a surgical procedure in which an incision is made in the colon to excise a lesion inside the colon; a colostomy creates an opening in the colon to form an alternative channel for feces to leave the body and often requires the attachment of an appliance or bag. DSMF ¶ 171; PODSMF ¶ 171. Depending on when it was disclosed, the improper booking of a colostomy instead of a colotomy could have triggered administrative and legal problems for the Hospital and a range of potential health and safety issues for the patient.
Ms. Daigle was aware that an audit was being conducted of the files in the general surgery office on Monday, November 11, 2008. DSMF ¶ 182; PODSMF ¶ 182. An auditor from Medical Mutual, Redington-Fairview's insurance carrier, discovered the consent form with the word "error" on it and brought this to the attention of Ms. Rice, the general surgery office manager. DSMF ¶ 184; PODSMF ¶ 184. Ms. Rice informed Ms. Buckingham that Ms. Daigle had altered a consent form that had been signed by a patient and a physician and had changed the procedure the physician had written on the form from colotomy to colostomy. DSMF ¶ 185; PODSMF ¶ 185. Ms. Buckingham was also informed that Ms. Gagnon had told Ms. Daigle to discuss the form with the surgeon before changing it and that Ms. Daigle had asked Ms. Gagnon to contact the patient to come to the hospital to sign a new consent form. DSMF ¶ 187; PODSMF ¶ 187. When Ms. Rice questioned Ms. Daigle about the consent form, Ms. Daigle attempted to place blame for what she had done on Ms. Gagnon.
Ms. Buckingham brought the matter to the attention of Mr. Willett and they agreed that Redington-Fairview should terminate Ms. Daigle's employment. DSMF ¶¶ 191-92; PODSMF ¶¶ 191-92. Ms. Buckingham discussed the termination with counsel because Ms. Daigle had a sexual harassment claim against the Hospital pending before the Maine Human Rights Commission and Ms. Buckingham was concerned that Ms. Daigle would claim that the Hospital's termination decision was retaliatory.
Mr. Willett did not discuss the termination decision with anyone, including Dr. Shankar, other than Ms. Buckingham and possibly Mr. Kempton before discharging Ms. Daigle.
Neither Ms. Buckingham nor Dr. Shankar was aware of any other situation in which an employee had done something similar to what Ms. Daigle had done—i.e. changed a procedure a physician had documented
On November 12, 2008, Ms. Rice and Ms. Buckingham met with Ms. Daigle. DSMF ¶ 200; PODSMF ¶ 200. Ms. Buckingham showed Ms. Daigle the two consent forms and asked her if she had changed them.
In addition to the facts underlying her primary claims, Ms. Daigle is seeking punitive damages against Redington-Fairview and, in response to Redington-Fairview's motion for summary judgment, she posited facts that she contends generate triable issues.
Of the eight counts in her Amended Complaint, Tanya Daigle posited five counts against Redington-Fairview. Am. Comp. Redington-Fairview moves for judgment on each: 1) Count IV—Hostile Work Environment—Maine Human Rights Act and Title VII; 2) Count V— Retaliation—Maine Human Rights Act and Title VII; 3) Count VI—Whistleblower's Protection Act; 4) Count VII—Discrimination Based on Gender—Title VII; and, 5) Count VIII—Discrimination Based on Gender—Maine Human Rights Act. Def.'s Mot. at 2.
Redington-Fairview says that even though Ms. Daigle divided her claims into different counts, her legal claims can be divided into two basic theories: hostile environment sexual harassment under Title VII and the Maine Human Rights Act (MHRA); and retaliation under Title VII, the MHRA, and the Maine Whistleblower's Protection Act. Id. The Hospital asserts that it is not responsible for the hostile environment sexual harassment set of claims because 1) Dr. Stulc was not a supervisory employee, 2) the Hospital took prompt remedial action, and 3) the facts are not sufficiently severe or pervasive to constitute actionable sexual harassment. Id. at 3-12; Def.'s Reply at 1-5. The Hospital then claims it is not responsible for retaliation because 1) Ms. Daigle failed to first bring the alleged violation to her employer, 2) Ms. Daigle did not sustain an adverse employment action, and 3) she failed to demonstrate a causal nexus between her complaints and her discharge. Def.'s Mot. at 12-25. Finally, Redington-Fairview contends it is entitled to judgment on the punitive damages claim. Id. at 25-26.
Ms. Daigle disputes the Hospital's positions that Dr. Stulc did not have de facto authority over her employment and that the Hospital's response was sufficiently remedial or effective. Pl.'s Resp. at 3-7. She asserts that she was subjected to severe and pervasive sexual harassment and hostility. Id. at 8-15. Turning to the retaliation theory, Ms. Daigle claims she was engaged in protected activity, that her warning, demotion, and termination constituted adverse employment actions, and that she has demonstrated a causal link between her whistleblowing and the adverse employment actions. Id. at 15-19. Finally, she contends she has presented sufficient evidence to generate a punitive damage claim against the Hospital. Id. at 19.
Summary judgment is appropriate "if the movant shows that there is no genuine
The Court "afford[s] no evidentiary weight to `conclusory allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative.'" Tropigas de Puerto Rico, Inc., 637 F.3d at 56 (quoting Rogan v. City of Boston, 267 F.3d 24, 27 (1st Cir. 2001)); accord Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir. 2009); Carroll v. Xerox Corp., 294 F.3d 231, 236-37 (1st Cir. 2002). Rather, the non-moving party must "present `enough competent evidence' to enable a factfinder to decide in its favor on the disputed claims." Carroll, 294 F.3d at 237 (quoting Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir. 1993)). The Court then "views the facts and draws all reasonable inferences in favor of the nonmoving party." Ophthalmic Surgeons, Ltd., 632 F.3d at 35; accord Merchs. Ins. Co. of N.H., Inc. v. United States Fid. & Guar. Co., 143 F.3d 5, 7 (1st Cir. 1998).
One way of violating Title VII is "requiring people to work in a discriminatorily hostile or abusive environment." Valentin-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006) (quoting Harris v. Forklift Sys., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). As a general proposition, a plaintiff may recover on a hostile work environment theory when "the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Wilson v. Moulison N. Corp., 639 F.3d 1, 6-7 (1st Cir. 2011) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)); O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001) (same). "[T]he hostile work environment test requires an assessment of the totality of the circumstances, including `the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's
"A plaintiff must satisfy different standards for establishing employer liability in a hostile work environment case depending on whether the harasser is a supervisor or co-employee of the victim." Crowley v. L.L. Bean, Inc., 303 F.3d 387, 401 (1st Cir. 2002). An employer is "vicariously liable if [its] supervisor ... created a hostile work environment." Torres-Negron v. Merck & Co., 488 F.3d 34, 40 (1st Cir. 2007). "When co-workers, rather than supervisors, are responsible for the creation and perpetuation of a hostile work environment ... an employer can only be liable if the harassment is causally connected to some negligence on the employer's part." Wilson, 639 F.3d at 7 (quoting Noviello v. City of Boston, 398 F.3d 76, 95 (1st Cir. 2005)). In other words, the plaintiff must demonstrate that "the employer knew or should have known about the harassment yet failed to take prompt and appropriate remedial action." Id. (citing Crowley, 303 F.3d at 401). However, "notice alone is not enough. Liability only attaches if the employer, after receiving notice, fails to take prompt and appropriate ameliorative action." Id. at 8. Summary judgment will lie "when the undisputed facts show that a reasonable jury could not help but conclude that the employer's response was both timely and appropriate." Id. Although the law requires the employer to respond, it does not require the employer to respond in any particular way and the law recognizes that "the imposition of employee discipline is not a rote exercise, and an employer must be accorded some flexibility in selecting condign sanctions for particular instances of employee misconduct." Id.
"[T]he determination of whether an employee is a de facto supervisor ... is factual in nature." Id. at 9. Nonetheless, "a minimum factual predicate must be present to avoid summary judgment on such an issue." Id. at 9. "[S]tanding alone, a [plaintiff's] subjective belief is insufficient to create a triable issue of material fact about a coworker's status." Id. at 10. A supervisor is one who has "the authority to affect the terms and conditions of ... employment." Id. at 9 (quoting Noviello, 398 F.3d at 96). This authority "primarily consists of the power to hire, fire, demote, promote, transfer, or discipline an employee." Id. (quoting Noviello, 398 F.3d at 96). Depending on the context, a supervisor's responsibilities must "include the duty to forward harassment complaints up the line (that is, to upper management)." Id.
With these principles in mind, there is scant evidence in this record that Dr. Stulc was Ms. Daigle's supervisor. There is no evidence that he was involved in hiring her, setting her hourly wage, determining her work schedule, disciplining her, promoting her (or not), or that he had the authority to fire her. There is no evidence that Dr. Stulc was a person to whom Ms. Daigle was required to make a complaint of sexual harassment and there is substantial evidence that she complained about his
This is not to say that the economic and power relationship between a general surgeon and a medical secretary is equal. It is decidedly not. There may be a case where a low-level hospital employee could prove that a physician, particularly an employed physician, had such influence over the hospital administration that he effectively had supervisory authority over her. But this is not that case. The only evidence that buttresses Ms. Daigle's argument is Mr. Leadbetter's comment in mid-October 2007 that "Dr. Stulc is not going anywhere and if [you cannot] work with the doctor," he would "find another position" for her. PSAMF ¶ 244; DRPSAMF ¶ 244. This comment does not establish that Dr. Stulc was Ms. Daigle's supervisor. Instead, it emphasizes that the individual with decision-making authority was Mr. Leadbetter, not Dr. Stulc, since Mr. Leadbetter said he would reassign Ms. Daigle.
On this record, the Court concludes that Ms. Daigle failed to present "a minimum factual predicate ... to avoid summary judgment on [this] issue." Wilson, 639 F.3d at 9. Ms. Daigle also points to the positive five-week review that Dr. Stulc received, but she does not explain why the Hospital's positive review of the doctor makes him her supervisor. There is no genuine issue of material fact as to whether Dr. Stulc was Ms. Daigle's supervisor: he was not.
As Dr. Stulc was a co-employee, Ms. Daigle's hostile environment sexual harassment claim must demonstrate that "the employer knew or should have known about the harassment yet failed to take prompt and appropriate remedial action." Id. at 7. There is the overwhelming evidence in this record that when Ms. Daigle complained about Dr. Stulc, the Hospital took her complaints seriously and took prompt action. Following her complaints about Dr. Stulc, the Hospital warned him about his conduct and put him on a leave of absence, and ultimately terminated him.
From September 1, 2007 to September 19, 2007, Dr. Stulc worked at Redington-Fairview as a locum tenens and on September 19, 2007, the Hospital hired him as a general surgeon. Ms. Daigle's problems with Dr. Stulc began either during the last week of September or the first week of October and the Hospital placed him on administrative leave on November 26, 2007. Ms. Daigle's first problem occurred when Dr. Stulc yelled at her and told her not to second guess him. Ms. Daigle reported his conduct to Mr. Leadbetter and Dr. Renfrew and, in response, Dr. Renfrew asked her to set up a meeting among Dr. Stulc, Virginia Farley, himself and herself to work out expectations.
Ms. Daigle's second problem with Dr. Stulc occurred on October 10, 2007 when she discovered the pornographic printouts. When Mr. Kempton came to investigate, Ms. Daigle and Ms. Gagnon told him about Dr. Stulc's inappropriate conduct around female patients and Ms. Gagnon mentioned his inappropriate comments to a male patient. Shortly thereafter, the administration
In addition to meeting with Dr. Stulc, the Hospital arranged for a meeting among Mr. Kempton, Mr. Leadbetter, Dr. Stulc, Ms. Daigle, and Ms. Gagnon. The meeting took place on October 12, 2007. Although Ms. Daigle has criticized the meeting as being without a mediator, without the presence of a female administrator, and not addressing all her issues the way she preferred, the law gives an employer a range of discretion as to how to respond to harassment complaints and it is not necessary that in doing so, the employer must satisfy the complainant's view of how it should proceed.
Next is Dr. Stulc's physical examination of a female patient in the OR on November 21, 2007. The Court assumes that even though the incident did not directly involve Ms. Daigle, the doctor's actions could have contributed to an overall atmosphere of sexual harassment. Here, the nurses in the OR informed the Hospital administration and the Hospital generated a PERTS Report. The Hospital did not treat the incident as one of sexual misconduct; instead, it treated the incident as a violation of standard precautions and infection control practices. Dr. Renfrew told Dr. Stulc that he was never to do this again. Here, the record reflects that the Hospital acted promptly, that Dr. Stulc's actions were the subject of an internal investigation and report, and that the Medical Director verbally reprimanded Dr. Stulc. This is sufficient under the law. See id. at 8 (dismissing a plaintiff's argument that "a verbal reprimand and warning constituted too mild a sanction" and that harassing coworkers' speech "should have resulted in their immediate discharge"). Again, Ms. Gagnon assumed a different view of the incident, seeing it as part of Dr. Stulc's pattern of sexual misconduct, and she says that as sexual misconduct, the OR complaint should have triggered a report to the National Data Bank, to the Board of Licensure in Medicine, and to Ms. Buckingham, the Director of Human Resources. However, as the Court has noted, the employer is not required to accept the complainant's view of the nature of a co-employee's actions or the proper remedy. In any event, within a week, the Hospital had placed Dr. Stulc on administrative leave.
Ms. Daigle's concern during the period from November 26, 2007 to April 17, 2008, that Dr. Stulc might return and that she was told to tell patients only that Dr. Stulc was "unavailable" is essentially a disagreement with her employer about its selected sanction; it amounts to a contention that the Hospital had to terminate Dr. Stulc, not suspend him, and could not legally seek less draconian sanctions, such as mentoring and counseling. If the Hospital had allowed Ms. Daigle to do what she wanted to do—inform the general public that a general surgeon had been suspended for sexual impropriety—it would have been exceedingly difficult to bring Dr. Stulc back to work at Redington-Fairview. However, the First Circuit recently commented that "there is no legal rule that requires treating [a violation of Title VII] as the workplace equivalent of a capital offense." Id.
Ms. Daigle contends that the Hospital's later handling of Dr. Stulc's resignation perpetuated an atmosphere of sexual harassment. She complains that the Hospital should have reported Dr. Stulc's sexual misconduct to the Maine Board of Licensure in Medicine and to the National Data Bank, and that it should not have relied on the misrepresentations in his Medical Staff application to institute the investigation that led to his resignation. However, as with the other complaints, Ms. Daigle's disagreement with the Hospital on this point is a disagreement with her employer's choice of remedy.
Finally, although Ms. Daigle attempts to weave into her sexual harassment claim the Hospital's disciplinary process that led to the written warning on February 18, 2008, the causal link between the Hospital's action and the maintenance of an abusive work environment is extremely attenuated. By the time the Hospital disciplined Ms. Daigle, Dr. Stulc had not worked there for 2 ½ months, was the subject of Ms. Daigle's pending complaint before the Board of Licensure in Medicine, and Ms. Daigle herself had discovered evidence that led to Dr. Stulc's resignation from the Redington-Fairview Medical Staff and to the Board's revocation of his license to practice medicine in Maine. Ms. Daigle has never asserted that anyone at the Hospital other than Dr. Stulc engaged in sexually inappropriate behavior and the connection between the Hospital's February 2008 written warning and an allegedly abusive working environment from a physician who had been long suspended, never to return to work, is a step too far.
If Ms. Daigle's chronology of events states a cause of action, it must be as a retaliation claim, and the Court turns next to that issue.
To make out a claim for retaliation, a plaintiff must point to specific facts that show: (1) she engaged in protected conduct protected by statute; (2) she was subjected to an adverse employment action after the protected conduct occurred; and (3) there was a causal link between the protected conduct and the adverse employment action. Collazo v. Bristol-Myers Squibb Mfg., 617 F.3d 39, 46 (1st Cir. 2010); Valentin-Almeyda, 447 F.3d at 94. The same criteria apply to a MWPA claim. Costain v. Sunbury Primary Care, P.A., 2008 ME 142, ¶ 6, 954 A.2d 1051, 1053. "Protected conduct includes not only the filing of administrative complaints but also complaining to one's superiors." Valentin-Almeyda, 447 F.3d at 94 (internal citation omitted). "[T]o be adverse, an employment action `must materially change the conditions' of the plaintiff's employment; examples include `disadvantageous transfers or assignments' and `unwarranted negative job evaluations.'" Id. at 95 (quoting Gu v. Boston Police Dep't, 312 F.3d 6, 14 (1st Cir. 2002)).
Under the McDonnell Douglas burden-shifting framework, once a plaintiff has made a prima facie showing of retaliation, the defendant must articulate a legitimate, non-retaliatory reason for its employment decision, and if the defendant meets this burden, the plaintiff must show that the proffered legitimate reason is in fact a pretext and that the job action was the result of the defendant's retaliatory animus. Collazo, 617 F.3d at 46 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). The defendant's burden is one of production only; the burden of persuasion remains on the plaintiff. Valentin-Almeyda, 447 F.3d at 95. The Title VII analytic framework applies to retaliation claims under the MWPA.
Ms. Daigle has the initial undemanding task of making a prima facie case of unlawful retaliation. Melendez v. Autogermana, Inc., 622 F.3d 46, 51 (1st Cir. 2010); Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991) ("The burden of making out a prima facie case is `not onerous'" (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981))). Furthermore, under First Circuit authority, the Court may not "consider the employer's alleged nondiscriminatory reason for taking an adverse employment action when analyzing the prima facie case." Melendez, 622 F.3d at 51 (quoting Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 574 (6th Cir. 2003)).
Redington-Fairview first contends that Ms. Daigle's retaliation claim must fail because she limited her retaliation claim to state law and she failed to bring the alleged violation to a person at the Hospital with supervisory authority as required by the Maine Whistleblowers Protection Act (MWPA), 26 M.R.S. § 833(2). Def.'s Mot. at 13-14, 14 n. 9. The Hospital then says that to be actionable, a retaliation claim must be based on the plaintiff's opposition to an employment practice made unlawful by either the MWPA or Title VII, and as Ms. Daigle did not complain to the Board of Licensure in Medicine about an employment practice at
The Court agrees with Ms. Daigle. First, the Court does not conclude that Ms. Daigle waived her right to proceed under both federal and state law. As regards the state law claim, the MWPA provides that actions protected from discrimination include an employee:
26 M.R.S. § 833(1)(A), (E).
Redington-Fairview argues that Ms. Daigle cannot seek shelter under the MWPA "[b]ecause the [Board of Licensing in Medicine] Complaint did not concern an unlawful employment practice of Ms. Daigle's employer." Def.'s Mot. at 14 (emphasis in Def.'s Mot.). The plain language of the statute contains no such limitation, referring only generally to "violation of a law or rule adopted under the laws of this State or the United States." 26 M.R.S. § 833(1)(A). What is more, the line between complaints about an employer's practice and coworker's violation of a rule or law is a fluid one; coworkers' actions are often intertwined with conditions of employment. Thus, in Currie v. Industrial Security, Inc., 2007 ME 12, ¶ 15-17, 20, 915 A.2d 400, 405-06, the Maine Supreme Judicial Court viewed as a protected activity, complaints made to the Border Patrol about the ability of two coworkers to work. Under the MWPA, Ms. Daigle's complaints to the Medical Board regarding Dr. Stulc's license to work as a physician deserve similar protection.
Nonetheless, the Court need not go so far as to consider whether reporting Dr. Stulc's omissions to the Board in his licensing application is a protected activity. Although Ms. Daigle's complaint to the Board of Licensure in Medicine may have been initially prompted by her discovery of Dr. Stulc's omissions, the context of Ms. Daigle's complaint about Dr. Stulc to the Board of Licensure in Medicine is that from her perspective, she brought serious allegations of sexual harassment of both employees and patients to the Hospital administration and Redington-Fairview took insufficient remedial action, thereby endangering the employees and patients at the Hospital. Her complaint to the Board about Dr. Stulc was therefore grounded on the facts underlying her complaints to the Hospital about his creation of a hostile work environment at Redington-Fairview based on her gender.
Redington-Fairview's related point is that "[t]o come under the MWPA's protection, the employee must first bring the alleged violation to the attention of a person with supervisory authority with the employer, and allow the employer a reasonable opportunity to correct the violation." Def.'s Mot. at 14 (citing 26 M.R.S.A.
26 M.R.S.A. § 833(2). However, the requirement that the employee first involve the employer "is not required if the employee has specific reason to believe that reports to the employer will not result in promptly correcting the violation, condition or practice." Id. The Court concludes that Redington-Fairview's treatment of Ms. Daigle's previous complaints establishes a genuine issue of material fact as to whether she had reason to believe that the Hospital would not promptly correct the substance of her complaint to the Medical Board. For instance, after the November 21, 2007 incident with Jane Doe, Redington-Fairview did not notify the patient, the National Practitioners Data Bank, or state authority, and did not address the allegedly sexual nature of the incident. From this, Ms. Daigle could have come to believe that Redington-Fairview desired to keep Dr. Stulc's transgressions internal and to treat them as professional, not sexual abuse issues. Further supporting Ms. Daigle's belief was Redington-Fairview's initial decision not to terminate Dr. Stulc and Mr. Leadbetter's previous comment to Ms. Daigle that "Dr. Stulc is not going anywhere and if [you cannot] work with the doctor," he would "find another position" for her. PSAMF ¶ 244; DRPSAMF ¶ 244.
Ms. Daigle's position is not without controversy since at the time Ms. Daigle made the report to the Maine Board of Licensure in Medicine, Redington-Fairview had suspended Dr. Stulc. Nevertheless, accepting Ms. Daigle's version of the facts, she has raised a genuine issue of material fact as to whether she had "specific reason to believe that reports to the employer will not result in promptly correcting the violation." 26 M.R.S. § 833(2). Ms. Daigle's assertion that Redington-Fairview failed to act to protect its employees and patients is sufficient to make out a prima facie case bringing her within Title VII and the MHRA's prohibition against retaliation based on a plaintiff's opposition to its employment practice.
Redington-Fairview asserts that Ms. Daigle claims she suffered adverse employment actions consisting of ostracization by co-employees and management, the February 18, 2008 written warning, the removal of her job duties as office manager, her discharge, and the Hospital's engaging in dishonesty to deny her unemployment benefits. Def.'s Mot. at 14-15. The Hospital contends she cannot make out a prima facie case based on these allegations. Id. The Court disagrees.
Ms. Daigle says that as a consequence of her complaint about Dr. Stulc, the Hospital issued her a written warning, refused to promote her to the position of office manager, removed her job duties as acting office manager, and then fired her for a mistake, taking into account her written warning. All of this—written warnings, failure to promote, altering job duties, and termination—is sufficient to carry Ms. Daigle's prima facie burden.
Redington-Fairview next contends that Ms. Daigle failed to make out a prima facie case that there is a causal
The Court concludes that Ms. Daigle produced sufficient evidence to make out a case of retaliation under the MWPA.
Under McDonnell Douglas, the burden now shifts to Redington-Fairview to "articulate[e] a legitimate, nondiscriminatory reason for the adverse employment action." Mesnick, 950 F.2d at 823. The Hospital has amply sustained its burden. It says it sanctioned Ms. Daigle not for her complaint to the Maine Board of Licensure in Medicine, but for her violation of co-employee privacy and her failure to follow internal procedures before lodging her complaint, that it hired another person as office manager because she was better qualified, that it fired Ms. Daigle because she had committed a terminable act. The Court readily concludes that the Hospital has sustained its burden of production in the burden-shifting framework.
Once an employer has met its burden of production, the burden shifts to the employee "to show, unassisted by the original inference of discrimination, that the employer's proffered reason is actually a pretext for discrimination of the type alleged." Id. In other words, the "ultimate burden falls on the plaintiff to show that the proffered legitimate reason is in fact a pretext and that the job action was the result of the defendant's retaliatory animus." Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996).
To meet this burden, the First Circuit has explained that "evidence of retaliation can be direct or circumstantial." DeCaire v. Mukasey, 530 F.3d 1, 20 (1st Cir. 2008). Also, that an employer's action falls within an area of discretion does not necessarily justify its action since "[d]iscretion may be exercised in ways which are discriminatory or retaliatory." Id. To withstand summary judgment, a plaintiff need not "prove by a preponderance of the additional evidence that [retaliation] was in fact the motive for the action taken. All a plaintiff has to do is to raise a genuine issue of fact as to whether [retaliation] motivated the adverse employment action." Collazo, 617 F.3d at 50 (quoting Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 433 (1st Cir. 2000)) (alterations in Collazo). At the same time, the First Circuit said that
The first question is whether Ms. Daigle has established a temporal relationship between her complaint and the adverse employment action. The First Circuit has repeatedly observed that "[a] showing of [an adverse employment action] soon after the employee engages in an activity specifically protected by section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), is indirect proof of a causal connection between the firing and the activity because it is strongly suggestive of retaliation." Oliver v. Digital Equipment Corp., 846 F.2d 103, 110 (1st Cir.1988). Ms. Daigle filed the complaint about Dr. Stulc with the Board of Licensure in Medicine on January 25, 2008 and she received a written warning on February 18, 2008, an interval of less than one month. This interval is sufficient to allow a fact-finder to conclude there is a causal connection between the complaint and the adverse employment action. Calero-Cerezo v. United States Dep't of Justice, 355 F.3d 6, 25-26 (1st Cir.2004) (finding a causal connection when the employer disciplined the employee "roughly a month" after she filed an EEO complaint); Mariani-Colon v. Dep't of Homeland Sec., 511 F.3d 216, 224 (1st Cir.2007) (finding a causal connection between allegations of discrimination in June 2002 and termination in August 2002).
The next links in Ms. Daigle's causation chain include her April 2008 failure to obtain the office manager position, the resulting reduction of her job duties, and her November 2008 termination. Any argument that the causal chain has been broken is contravened by Ms. Buckingham's testimony that the written warning was a factor in the Hospital's decision to terminate Ms. Daigle. Thus, temporal proximity suggests that the Hospital's actions in terminating Ms. Daigle were influenced by her complaint to the Board.
Even so, "chronological proximity does not by itself establish causality, particularly if the `larger picture undercuts any claim of causation.'" Wright v. CompUSA, Inc., 352 F.3d 472, 478 (1st Cir.2003) (quoting Soileau v. Guilford of Me., Inc., 105 F.3d 12, 16 (1st Cir.1997)). Here, there is substantial evidence from which a jury could well conclude that Redington-Fairview's actions from January 2008 onward were wholly unrelated to her complaint to the Board. First, there is no direct evidence of retaliation—no hints from any written or oral statements from the Hospital that confirm Ms. Daigle's position.
Second, the Hospital has presented a strong case that it did not sanction Ms. Daigle for reporting Dr. Stulc. In fact, Hospital management said that based on the Stulc records, they would have reported him too. Rather, Redington-Fairview clarified that it disciplined Ms. Daigle because she invaded a co-employee's privacy and failed to inform the Hospital about Dr. Stulc's records before she filed the complaint with the Board. Moreover, there is no suggestion in this record that the Hospital disagreed at all with the substance of Ms. Daigle's complaint to the Board. It separately commenced a disciplinary action against Dr. Stulc under the due process provisions of its Medical Staff Bylaws, and Dr. Stulc's resignation, which Ms. Daigle's complaint helped precipitate, avoided what might have been a contentious and protracted series of hearings.
Third, regarding the hiring of Ms. Rice, Ms. Daigle concedes that Ms. Rice is qualified to act as office manager and, in fact, Ms. Rice possessed some skills that made
Finally, Ms. Daigle made an extremely serious error in altering an informed consent form without obtaining clarification from the physician. When combined with her response, Redington-Fairview has a compelling argument that her actions independently justified termination.
Nevertheless, at this stage, the Court is not acting as fact-finder and the question is whether there are genuine issues of material fact that justify allowing this case to proceed to a jury. The Court concludes there are.
Although Redington-Fairview strenuously contends that, even viewing the evidence in the light most favorable to Ms. Daigle, the evidence would not permit a punitive damages award, the short answer is that to reach the issue of punitive damages, a jury would have had to conclude that Redington-Fairview retaliated against Ms. Daigle because she complained to the Board of Registration in Medicine about a predatory physician. Notwithstanding the Hospital's defenses, the Court concludes that Ms. Daigle has raised genuine issues of material fact that preclude summary judgment on her claim for punitive damages.
The Court GRANTS in part and DENIES in part Redington-Fairview General Hospital's Motion for Summary Judgment. The Court GRANTS Redington-Fairview General Hospital's Motion for Summary Judgment as to Counts IV and VIII and as to Count VII insofar as it is based upon allegations of a hostile work environment. The Court DENIES the Motion as to Counts V and VI, and as to Count VII insofar as it is based upon allegations of retaliation. Finally, the Court DENIES the Motion as to Tanya Daigle's punitive damages claim.
SO ORDERED.
PSAMF ¶ 322. Redington-Fairview objected on the ground that the statement is not supported by the record reference. DRPSAMF ¶ 322. The Court agrees with Redington-Fairview. The cited testimony from Ms. Buckingham is:
DSMF Attach. 3, Dep. of Deborah Buckingham at 26:4-6. The Court limited the statement to the contents of the cited record evidence. The remainder of Plaintiff's additional material fact paragraph 322 is argument.
Daigle Dep. at 69:1-12. The Court takes Ms. Daigle at her word and views the Plaintiff's contention that she only knew that Dr. Stulc was unavailable, not that he was on administrative leave, as an attempt to generate an issue where none exists. Ms. Daigle's overall contention—that she did not know whether Dr. Stulc would return—remains valid either way.
PSAMF ¶ 336. Ms. Daigle cites as record support her own affidavit, which tracks this statement. Id. (citing Daigle Aff. ¶ 159). Redington-Fairview objects on the ground that paragraph 336 is argument, not fact. The Court agrees with Redington-Fairview. The Court strikes Plaintiff's Statement of Additional Material Fact paragraph 336 in its entirety.
Redington-Fairview makes the same objection about Plaintiff's additional material facts paragraphs 360 and 361. The Court agrees with the Hospital and strikes Plaintiff's additional material facts paragraphs 360 and 361.
Redington-Fairview objects to Plaintiff's additional material fact paragraph 362 for the same reason it objected to Plaintiff's additional material fact paragraphs 312-14. See supra n. 26. The Court sustains the Hospital's objection for the same reason reflected in footnote 26. Id.
Redington-Fairview moves to strike Plaintiff's additional material fact paragraph 363 because the Plaintiff's record citation does not support the statement. DRPSAMF ¶ 363. The Court agrees and strikes Plaintiff's additional material fact paragraph 363.
Redington-Fairview moves to strike Plaintiff's additional material fact paragraph 364 because it is argumentative. DRPSAMF ¶ 364. The Court agrees. The paragraph is, in essence, an argumentative summary of facts that appear elsewhere in Plaintiff's additional material facts. The Court strikes Plaintiff's additional material fact paragraph 364.
Redington-Fairview objected to Plaintiff's additional material fact paragraph 351 on the ground that it is an argumentative narrative. DRPSAMF ¶ 351; PSAMF ¶ 351. The Court agrees and strikes Plaintiff's material fact paragraph 351.
Redington-Fairview objects to and denies the first, third and fourth sentences of Plaintiff's material fact paragraph 372. DRPSAMF ¶ 372. The Hospital contends the paragraphs are argument, not fact. Id. The Court overrules the Hospital's objection to the first sentence; the Court sustains the objection to the phrase "events of hostility" in the third sentence and strikes that phrase as argumentative; and, the Court sustains the objection to the fourth sentence and strikes it as argumentative.
PSAMF ¶ 442. However, these "facts" track the causes of action in Counts VII—Retaliation and VIII—Whistleblower's Protection Act—and amount to legal conclusions, not facts; this lawsuit is about whether Ms. Daigle was fired because she reported violations to the state of Maine Board of Licensure in Medicine and placing her theory of recovery before the Court in affidavit form does not generate a genuine issue of material fact that survives summary judgment. Compl. ¶¶ 187-98. Otherwise, all plaintiffs could avoid summary judgment simply by filing a verified complaint or an affidavit reciting the allegations in the complaint.
Second, the phrasing of these "facts" is highly conclusory and argumentative: "This alleged `reason' for Tanya Daigle's discharge was false and pretextual," PSAMF ¶ 445, "In the Department of Labor Unemployment Insurance Division, [Redington-Fairview] lied in order to deprive Tanya Daigle of her rights, warranting punitive damages," PSAMF ¶ 443, and "[Redington-Fairview]'s retaliation against Tanya Daigle, by engaging in the conduct and acts described above, constituted retaliation by (sic) the Maine Human Rights Act, Title VII and the Maine Workers' Protection Act," PSAMF ¶ 448. As Ms. Daigle knows perfectly well, Redington-Fairview strenuously disputes these allegations; they are not undisputed facts. Learnard v. Inhabitants of Van Buren, 182 F.Supp.2d 115, 119 (D.Me. 2002) ("[M]any of Plaintiff's numbered facts are far from `short and concise' and contain several distinct facts organized into a brief, argumentative narrative").
Third, whether Ms. Daigle has generated a genuine issue of material fact as to whether Redington-Fairview engaged in a pretextual discharge is the heart of the motion for summary judgment and instead of providing facts, Ms. Daigle has made argument. In fairness to both parties, the Court has tried to pick through the advocacy to see whether the rhetoric cloaks a real factual dispute. In doing so, it has addressed only those material facts that are true facts, not argument. To the extent the Court has not set forth the contents of a paragraph between material facts 442 and 469, it has sustained objections to the argumentative and unproductive nature of these statements.
On November 20, 2007, Ms. Daigle emailed Mr. Leadbetter describing several operational issues of concern about Dr. Stulc, including that he did not always answer his pages, that he was forcing patients to wait, and that he was not a team player. However, none of these operational concerns touches on sexual harassment. Furthermore, Mr. Leadbetter had scheduled another meeting to discuss these concerns for Tuesday, November 27, 2007 but the meeting never took place because the Hospital placed Dr. Stulc on administrative leave by then.
