Filed: Jun. 10, 2015
Latest Update: Mar. 02, 2020
Summary: Guptill met with Bethany Gage (a nurse who worked at the facility).diverted drugs.of her, as compared to Doe, constitutes evidence of pretext.4, The record does not bear out Murray's belated attempt to, characterize her complaints about Doe as complaints involving both, drug use and drug diversion.
United States Court of Appeals
For the First Circuit
No. 14-1943
DENISE MURRAY,
Plaintiff, Appellant,
v.
KINDRED NURSING CENTERS WEST LLC,
d/b/a Kindred Transitional Care and Rehabilitation-Kennebunk,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.
Guy D. Loranger, with whom Law Office of Guy D. Loranger was
on brief, for appellant.
James R. Erwin, with whom Michelle Y. Bush and Pierce Atwood
LLP were on brief, for appellee.
June 10, 2015
SELYA, Circuit Judge. Denise Murray portrays herself as
a whistleblower and charges that her quondam employer, Kindred
Nursing Centers West LLC (Kindred), fired her on that account.
Kindred denies this charge, asserting that it terminated Murray's
employment for a legitimate, nondiscriminatory reason: suspected
drug diversion. The district court assiduously sorted through the
evidence supporting these dueling allegations and entered summary
judgment in favor of Kindred. After careful consideration, we
affirm.
I. BACKGROUND
We rehearse the relevant facts in the light most
favorable to the plaintiff, drawing all reasonable inferences to
her behoof. See Kearney v. Town of Wareham, 316 F.3d 18, 19 (1st
Cir. 2002).
During the relevant time frame, Kindred operated a
nursing facility in Kennebunk, Maine, offering short-term and long-
term rehabilitation care. In March of 2011, Kindred hired Murray
as a licensed practical nurse. On four occasions during the first
three months of 2012, Murray claims to have reported concerns about
one of her supervisors (a registered nurse whom we shall call
Melissa Doe). According to Murray, Doe sometimes appeared to be
under the influence of drugs while on duty and once had admitted
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taking a "Xanabar" before coming to work.1 Murray also claims to
have reported that Doe once asked to be the person assigned to
"take care of" oxycodone that needed to be destroyed.
Murray claims to have made these reports to Kindred's
director of nursing, Dawn Guptill, and Murray says that Guptill
agreed to look into her allegations. In response to her last
report, Murray says that Guptill "snapped" at her and stated "I
will handle it my own way." Guptill denies much of Murray's
account, and there is no written record either of Murray's
complaints or of an investigation by Guptill.
On March 9, 2012 (about a week after the fourth report),
Guptill met with Bethany Gage (a nurse who worked at the facility).
Gage informed Guptill that Murray had documented administering
oxycodone (a powerful pain medication) to Resident 1 the previous
day when, to Gage's knowledge, Resident 1 had not been in pain for
quite some time.2 Gage further noticed that Murray had documented
administering oxycodone to Resident 1 on several occasions over the
previous few weeks even though no other nurse had done so. When
Gage asked Resident 1 if he either had been in pain or had received
pain medication lately, he replied in the negative.
1
According to Murray, "Xanabar" is a slang term denominating
four Xanax pills taken together.
2
To protect the patients' privacy, we refer to them — as did
the district court — by number rather than name.
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After receiving this distressing news, Guptill surveyed
other patients' records. Upon inquiry, Resident 2 denied having
received oxycodone at the time Murray had recorded administering it
to him. Guptill similarly learned that Murray had documented
administering medication to Resident 3 several hours after
Resident 3 had been discharged from the facility. On another
occasion, after medication was "punched in error," Murray failed
either to indicate what was done with the medication or to obtain
the required second signature of a witness to its destruction.
Guptill discovered other irregularities as well: for example,
Murray listed a February 2 administration of medication beneath
entries describing medication administrations on February 3 and
February 4 — a sequence demonstrating that Murray's February 2 note
was entered at least two days in arrears. On another patient's
chart, Murray had altered the time of administration of a drug by
an hour. And, finally, Murray's signature varied widely within and
between documents and was sometimes totally illegible.
Within a matter of hours after speaking with Gage,
Guptill had concluded that Murray was diverting drugs from
patients. Guptill promptly informed Murray that she was terminated
for drug diversion. Murray denied the charge and requested a
meeting, but Guptill refused to see her.
As required by law, Guptill reported Murray's dismissal
to the Maine State Board of Nursing (the Board) and the suspected
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drug diversion to the Maine Department of Health and Human Services
(DHHS). See Me. Rev. Stat. tit. 24, § 2506; 10-144-110 Me. Code R.
§ 17.D.10. Murray entered into a consent agreement with the Board
in which she admitted that she was properly disciplined for
"illegible and substandard documentation, particularly concerning
narcotic administration" in violation of state law and Board rules.
DHHS's investigation into the matter proved inconclusive, although
it noted that medication errors persisted at the facility even
after Murray's discharge.
After these administrative proceedings wrapped up, Murray
repaired to a state court and accused Kindred of violating Maine's
Whistleblowers' Protection Act (WPA), Me. Rev. Stat. tit. 26,
§§ 831-840. The gravamen of her suit was an allegation that
Kindred had cashiered her for complaining about Doe. Citing
diversity of citizenship and the existence of a controversy in the
requisite amount, Kindred removed the action to the federal
district court. See 28 U.S.C. §§ 1332(a), 1441.
During pretrial discovery, it came to light that Murray
had filed for bankruptcy in 2009 but had not amended the
appropriate bankruptcy schedule to disclose her whistleblower claim
as an asset. See 11 U.S.C. § 521(a)(1)(B)(i); see also id.
§§ 541(a)(7), 1306(a)(1). Kindred later moved for summary judgment
on two grounds. It maintained that Murray's failure to schedule
her claim in the bankruptcy court judicially estopped her from
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suing on that claim, see, e.g., Guay v. Burack, 677 F.3d 10, 17
(1st Cir. 2012); and in all events, that Murray's claim failed on
the merits. The district court rejected Kindred's judicial
estoppel theory but granted summary judgment on the merits in its
favor. See Murray v. Kindred Nursing Ctrs. W. LLC, No. 13-341,
2014 WL 4411044 (D. Me. Sept. 8, 2014). The court premised its
ruling on Murray's failure to make out a trialworthy issue on her
claim that Kindred had ousted her because of her role as a
whistleblower. See
id. at *9-11. This timely appeal ensued.
II. ANALYSIS
Summary judgment is "a means of avoiding full-dress
trials in unwinnable cases, thereby freeing courts to utilize
scarce judicial resources in more beneficial ways." Mesnick v.
Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991). We review the
district court's disposition of a summary judgment motion de novo,
"scrutiniz[ing] the evidence in the light most agreeable to the
nonmoving party, giving that party the benefit of any and all
reasonable inferences." Noviello v. City of Bos.,
398 F.3d 76, 84
(1st Cir. 2005). To prevail, the movant must demonstrate that
"there is no genuine dispute as to any material fact" and that it
"is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a).
Consistent with this praxis, the nonmovant can forestall
summary judgment by "present[ing] definite, competent evidence"
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demonstrating the existence of a genuine dispute about a material
fact. Mesnick, 950 F.2d at 822. Such evidence must be
sufficiently probative that, if it is credited, a factfinder could
resolve the case in favor of the nonmovant. See
Kearney, 316 F.3d
at 22. "The mere existence of a scintilla of evidence in support
of the plaintiff's position will be insufficient; there must be
evidence on which the jury could reasonably find for the
plaintiff." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252
(1986).
Against this backdrop, we turn to the legal structure
underlying Murray's claim. The WPA prohibits discrimination
against an employee who makes a good-faith report of, among other
things, "a condition or practice that would put at risk the health
or safety of" any person. Me. Rev. Stat. tit. 26, § 833(1)(B); see
id. § 833(1)(E) (providing protection for employees who report "an
act or omission that constitutes a deviation from the applicable
standard of care for a patient by an employer charged with the care
of that patient"). Maine law provides a private right of action
for a violation of the WPA. See
id. tit. 5, §§ 4572(1)(A), 4621;
see also Costain v. Sunbury Primary Care, P.A.,
954 A.2d 1051, 1053
& n.2 (Me. 2008).
With respect to claims brought pursuant to the WPA, Maine
courts employ the familiar three-part McDonnell Douglas framework.
See Stanley v. Hancock Cnty. Comm'rs, 864 A.2d 169, 174 (Me. 2004)
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(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973)). Under that framework, the plaintiff must make out a prima
facie case through a showing that "(1) she engaged in activity
protected by the WPA; (2) she experienced an adverse employment
action; and (3) a causal connection existed between the protected
activity and the adverse employment action." Walsh v. Town of
Millinocket,
28 A.3d 610, 616 (Me. 2011). Once this prima facie
showing is made, the burden shifts to the defendant to "produce
some probative evidence to demonstrate a nondiscriminatory reason
for the adverse employment action." DiCentes v. Michaud,
719 A.2d
509, 515 (Me. 1998). When that light burden of production is met,
the burden shifts back to "the employee to persuade the factfinder
that there was, in fact, a causal connection between the protected
activity and the adverse employment action."
Id.
In the case at hand, Murray made out her prima facie
case. She reported a supervisory nurse for behavior indicative of
impairment, thereby engaging in a protected activity; she
experienced an adverse employment action (the loss of her job); and
those two events occurred in a relatively compact time frame.
Under Maine law, close temporal proximity between the protected
activity and the adverse action is a sufficient showing of
causation for the purpose of establishing a plaintiff's prima facie
case. See
Stanley, 864 A.2d at 175. This put the ball in
Kindred's court, and Kindred identified a legitimate,
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nondiscriminatory reason for firing Murray: suspected drug
diversion. Thus, the case — at the summary judgment stage — boiled
down to whether Murray adduced sufficient evidence to support a
finding that drug diversion was a pretext and, concomitantly, that
her claimed whistleblowing activity "was the 'true reason or
motive' for [her] dismissal." Kearney, 316 F.3d at 23 (quoting
Hoeppner v. Crotched Mt. Rehab. Ctr., Inc.,
31 F.3d 9, 14 (1st Cir.
1994)).
The district court thought not, see Murray, 2014 WL
4411044, at *9-11, and we agree. "To demonstrate a causal link,
the plaintiff must show that the protected activity
(whistleblowing) 'was a substantial, even though perhaps not the
only, factor motivating the employee's dismissal.'" Caruso v.
Jackson Lab.,
98 A.3d 221, 226 (Me. 2014) (quoting
Walsh, 28 A.3d
at 616-17). Put simply, "her protected whistleblowing activity
must be a but-for cause of the employer's decision to terminate the
employment."
Id. at 227.
Appraisal of the record as a whole discloses an absence
of any significantly probative evidence sufficient to support a
finding that Murray's firing would not have occurred but for her
whistleblowing activity. Murray admitted to the Board that her
documentation practices violated state law and fell well below
professional standards. What is more, she does not meaningfully
contest that the problems identified by Guptill in her
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investigation might have led Guptill to believe (or, at least, to
suspect) that Murray was engaged in drug diversion. Drug diversion
in a nursing home is a serious matter, and — given Guptill's
supportable findings — Murray's discharge was not only objectively
justified but also inevitable. See Kearney, 316 F.3d at 24. Once
those findings were in hand, it is hard to imagine how Murray's
employment could have endured.
In an effort to blunt the force of this reasoning, Murray
strives to show that Guptill's drug diversion rationale was a
pretext. To this end, she assembles an array of facts designed to
show pretext. At the outset, Murray notes that she was terminated
for "drug diversion" but that, in the course of this litigation,
Kindred cited "suspected drug diversion" as the reason for her
termination. In her view, this shifting rationale evidenced
pretext. See, e.g., Domínguez-Cruz v. Suttle Caribe, Inc., 202
F.3d 424, 432 (1st Cir. 2000). But in this case, the distinction
between "drug diversion" and "suspected drug diversion" is without
a difference. Both descriptions capture the same notion, which
Kindred has consistently articulated: at the time of Murray's
firing, Kindred reasonably concluded that she engaged in drug
diversion. Whether she actually diverted drugs is of no moment.
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Kindred's reasonable suspicion was sufficient to justify
terminating Murray's employment.3
In a similar vein, Murray submits that because there is
no direct proof that she actually diverted drugs, a rational jury
could conclude that Kindred fired her for some reason unrelated to
drug diversion. See Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 147 (2000) (noting that, in some circumstances, the
falsity of a proffered explanation may give rise to an inference
"that the employer is dissembling to cover up a discriminatory
purpose"). In support, she labors to explain away each piece of
evidence upon which Guptill relied: the two patients who denied
receiving medication were not always lucid; some of the seemingly
irregular entries may have been misread by Guptill; and other
irregular entries were indicative only of careless recordkeeping.
In addition, Guptill's investigation spanned only a few hours and
did not include any input from Murray. Consequently, the
investigation signaled a "rush to judgment."
Admittedly, Murray's parsing of the evidence may suffice
to create a genuine factual dispute about whether she actually
diverted drugs. But that is beside the point: evidence of a
decisionmaker's mistaken judgment is not dispositive of the
question of pretext unless that evidence would permit the
3
We add, moreover, that this is quite plainly a tempest in
a teapot. Contemporaneous reports written by Guptill refer to
"suspected drug diversion" as the basis for her actions.
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factfinder to conclude that the stated nondiscriminatory
justification for the adverse employment action was either
knowingly false or made in bad faith. See Jordan v. Summers, 205
F.3d 337, 343 (7th Cir. 2000) ("In order to show pretext, [the
plaintiff] must demonstrate that [the defendant's] proffered reason
is a lie or completely lacks a factual basis." (footnote omitted));
see also Morgan v. Mass. Gen. Hosp., 901 F.2d 186, 191 (1st Cir.
1990). Here, then — even assuming for argument's sake that Murray
never actually diverted drugs — Murray has proffered no evidence
sufficient to support an inference that Guptill was unjustified in
believing that she did. Nor has she proffered any evidence
sufficient to support an inference that a more thorough
investigation would have led to that conclusion. The short of it
is that nothing in this record suffices to support a finding of
either knowing falsity or bad faith. Casting aspersions is not
enough. See Medina-Munoz v. R.J. Reynolds Tobacco Co.,
896 F.2d 5,
8 (1st Cir. 1990).
Murray soldiers on. She claims that Guptill's treatment
of her, as compared to Doe, constitutes evidence of pretext. In
support, Murray notes that there is no record of any investigation
of Doe's alleged drug use despite Murray's multiple reports; yet
when Murray was reported for drug diversion, Guptill's reaction was
swift and decisive.
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We agree with Murray's premise: in appropriate
circumstances, pretext may be inferred from proof that similarly
situated employees "were not discharged while the plaintiff was."
Morgan, 901 F.2d at 191. However, we disagree with Murray's ipse
dixit that she and Doe were similarly situated. "No valid
comparison can be drawn between two incidents for the purpose of
proving disparate treatment if 'differentiating or mitigating
circumstances' distinguish either the employee's conduct or the
employer's response to it." Conward v. Cambridge Sch. Comm.,
171
F.3d 12, 21 (1st Cir. 1999) (quoting Perkins v. Brigham & Women's
Hosp.,
78 F.3d 747, 751 (1st Cir. 1996)). So it is here: Doe was
suspected of drug use, while Murray was suspected of drug
diversion.
We do not doubt that drug use by a nurse is a
consequential matter. But the means, mode, and method of
investigating suspected drug use are considerably more complicated
than those available for investigating suspected drug diversion (in
the latter instance, as here, a simple check of records often will
suffice). Moreover, both state regulations and company policy
recognize drug diversion as a problem uniquely worthy of prompt
investigation and decisive sanction (up to and including
dismissal).
Specifically, state regulations required Kindred to
notify DHHS within 72 hours "when there is suspicion that a
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medication has been tampered with or stolen," and this notification
must be followed by a written report. 10-144-110 Me. Code R.
§ 17.D.10 (emphasis supplied). State law imposed no similar
notification-and-report requirement on Kindred for suspected drug
use by employees.4
This distinction is also borne out by Kindred's employee
handbook (the Handbook), which places great emphasis on the
seriousness of diverting drugs from patients. The Handbook states
that "Kindred will take disciplinary action, up to and including
separation of employment, when it has a reasonable belief that an
employee has sought to obtain medications from the facility that
are intended for resident use." There is no comparable provision
relating to drug use: although the Handbook expressly prohibits
employees from working while under the influence of alcohol, drugs,
or medication, it contains no parallel provision mandating
discipline.
In a last-ditch effort to salvage her differential
treatment argument, Murray makes two additional points. First, she
suggests that other nurses' signatures varied or were illegible,
4
The record does not bear out Murray's belated attempt to
characterize her complaints about Doe as complaints involving both
drug use and drug diversion. Although she reported that Doe
invited her on one occasion to let Doe "take care of" oxycodone
that needed to be discarded, Murray declined that invitation and
the oxycodone was appropriately destroyed. No matter how one
characterizes this incident, it was not the type of incident that
required DHHS notification and reporting.
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yet those nurses suffered no discipline. The record contains no
evidence, though, that any of these signature-related problems in
any way implicated drug diversion or otherwise violated either
state law or company policy.
Second, Murray suggests that Guptill's failure to
investigate another nurse who documented administering drugs to
Resident 2 when he was allegedly not in pain is evidence of
differential treatment. This suggestion confuses Resident 2 with
Resident 1. Resident 1 denied experiencing pain; Resident 2 only
denied receiving medication at the time that Murray — not the other
nurse — recorded its administration.
III. CONCLUSION
We need go no further.5 In the last analysis, Murray's
litigation position hinges on her insistence that Guptill was
looking for a reason to rid herself of Murray and her complaints.
But under Maine law, proof of retaliatory animus alone does not
suffice to demonstrate the causal connection required to make out
a claim for whistleblower protection. See DiCentes, 719 A.2d at
516; see also
Kearney, 316 F.3d at 25-26. In other words, "by
engaging in a protected activity an employee does not acquire
5
This appeal was consolidated for argument with Appeal No.
14-2072. The latter is an appeal by Kindred (probably an
unnecessary precaution) from the district court's rejection of its
judicial estoppel theory. See Murray, 2014 WL 4411044, at *7. We
do not reach the judicial estoppel issue and, by separate order, we
today dismiss that appeal as moot.
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immunity from the same risks that confront virtually every employee
every day in every work place." Blackie v. Maine, 75 F.3d 716,
723-24 (1st Cir. 1996). At a minimum, the plaintiff must "adduce
some significantly probative evidence that the [defendant's]
retaliatory animus played a materially causal role in the
termination of [her] employment."
Kearney, 316 F.3d at 26. Here,
there is nothing from which a reasonable factfinder could infer
that Murray's firing would not have occurred but for her
whistleblowing activity.
Affirmed.
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