Catalfo v.Kindred Nursing CV-01-365-M 05/30/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Donna Catalfo, Plaintiff

v. Civil N o . 01-365-M Opinion N o .

Kindred Nursing Centers West, LLC, d/b/a Dover Rehabilitation & Living Center, formerly known as Vencor Nursing Centers West, LLC, d/b/a Dover Rehabilitation and Living Center, Defendant

O R D E R

Donna Catalfo has sued her former employer, Kindred Nursing

Centers West, LLC, d/b/a Dover Rehabilitation & Living Center

(“defendant”), in six counts, seeking to recover for: wrongful

termination (Count I ) ; breach of contract (Count I I ) ; negligent

misrepresentation (Count I I I ) ; negligent training (Count I V ) ;

negligent supervision (Count V ) ; and negligent infliction of

emotional distress (Count V I ) . Before the court is defendant’s

motion for summary judgment (document n o . 1 9 ) . Plaintiff objects

in part. For the reasons given below, defendant’s motion for

summary judgment is granted. Standard of Review

Summary judgment is appropriate when the record reveals “no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law.” FED. R . CIV. P .

56(c). “To determine whether these criteria have been met, a

court must pierce the boilerplate of the pleadings and carefully

review the parties’ submissions to ascertain whether they reveal

a trialworthy issue as to any material fact.” Perez v . Volvo Car

Corp.,

(1st Cir. 2001) (citing Grant’s Dairy-

Me., L L C v . Comm’r of M e . Dep’t of Agric., Food & Rural Res.,

, 14 (1st Cir. 2000)).

In defending against a motion for summary judgment, “[t]he

non-movant may not rely on allegations in its pleadings, but must

set forth specific facts indicating a genuine issue for trial.”

Geffon v . Micrion Corp.,

9 , 34 (1st Cir. 2001) (citing

Lucia v . Prospect S t . High Income Portfolio, Inc.,

7 0 ,

174 (1st Cir. 1994)). When ruling upon a party’s motion for

summary judgment, the court must “scrutinize the summary judgment

record ‘in the light most hospitable to the party opposing

summary judgment, indulging all reasonable inferences in that

2 party’s favor.’” Navarro, 261 F.3d at 94 (quoting Griggs-Ryan v .

Smith,

1 2 , 115 (1st Cir. 1990)).

Background

In brief, and presented in the light most favorable to

Catalfo, the pertinent facts are as follows.

In April 1997, Catalfo was hired by Vencor to serve as

Rehabilitation Services Manager at Dover Rehabilitation & Living

Center (“Dover Rehab.”). Shortly thereafter, her position was

renamed “Ancillary Program Manager.” In December 1997, Catalfo

received a positive performance evaluation, a large pay raise, a

bonus, and assurance from her supervisor, Nancy Treadwell, that

her job was secure.

Three months later, in March of 1998, Treadwell put Celeste

Bentley in the Ancillary Program Manager position, demoting

Catalfo to the position of Assistant Ancillary Program Manager.

In her new position, as Bentley’s assistant, Catalfo retained her

former duties, salary, benefits, and bonuses. When Catalfo asked

Treadwell why Bentley had been given the Ancillary Program

3 Manager job, Treadwell told her that she had reassigned Bentley

because Vencor was eliminating Bentley’s position and Treadwell

did not want to lose Bentley as an employee.

In July 1998, defendant laid off approximately 1500

employees. But, at that time, Treadwell assured Catalfo that her

employment was secure. Catalfo also received a pay raise and a

bonus. On September 4 , 1998, defendant terminated Catalfo’s

employment.

Catalfo filed this action on the theory that she was

terminated in violation of an “anti-bumping” policy set out not

in the employee handbooks she was issued, but in a human

resources management manual used by defendant. In a section

titled “Layoff or Reduction in Hours,” that manual states:

When a need to reduce staff or eliminate job classifications occurs, Vencor will endeavor to transfer affected employees into available openings for which they qualify based on merit, ability, licensure/ certification status and length of service. Affected staff members, however, will not be allowed to “bump” other employees.

4 According to Catalfo, she was employed under a contract that

included the foregoing provision. Defendant, plaintiff claims,

breached her employment contract when Treadwell “bumped” her in

favor of Bentley (Count I I ) . Plaintiff also says defendant is

liable to her, in tort, for negligent training (Count I V ) ,

negligent supervision (Count V ) , and negligent infliction of

emotional distress (Count V I ) , because failures in training and

supervision caused Treadwell and Bentley to act in a manner that

breached plaintiff’s employment contract and caused her severe

emotional distress.

Discussion

Defendant moves for summary judgment on several grounds. In

addition to arguing that each of plaintiff’s claims fails on the

merits, defendant asserts the statute of limitations as a defense

to Counts I-IV, and the workers’ compensation exclusivity

provision as a defense to Counts III-VI. In response, plaintiff:

(1) affirmatively waives her objection to (i.e., concedes)

summary judgment on Count I ; (2) objects to defendant’s statute

of limitations and workers’ compensation bar arguments; and (3)

objects to summary judgment on the merits as to Counts II and

5 III. Plaintiff does not, however, counter defendant’s arguments

that it is entitled to judgment as a matter of law on Counts IV-

VI.

I. Count II

Defendant is entitled to summary judgment on Count II

because, on the undisputed factual record, plaintiff was an

employee at will.

“[W]here there is a disputed question of fact as to the

existence and terms of a contract it is to be determined by the

trier of the facts, provided there is any evidence from which it

could be found there was a contract between the parties.”

Harrison v . Watson,

1 0 , 511 (1976). Here, there is no

evidence from which it could be found that there was an

employment contract between the parties beyond plaintiff’s status

as an at-will employee.

It is undisputed that plaintiff’s initial letter of

employment from Vencor, two employee handbooks provided to her,

and two handbook acknowledgment forms signed by her, all stated,

6 in one way or another, that there was no contract of employment

between plaintiff and defendant.1 Plaintiff nonetheless contends

that she had an employment contract that included the “anti-

bumping” provision in the human resources manual. Specifically,

she argues that because one of the two acknowledgment forms she

signed did not explicitly state that other company documents

cannot create an employment contract, and because she was

required to read and follow the human resources manual, she is

entitled to enforce the manual’s anti-bumping provision as a term

of her employment contract.

As noted, plaintiff places considerable reliance upon the

first (Hillhaven) handbook acknowledgment form. The second

(Vencor) acknowledgment form states that “nothing contained in

the Handbook, any personnel policy, procedure or document issued

by Vencor, or any statement of supervisors or managers, either

verbal or written, is intended to create or suggest a contract

between Vencor and me . . . .” The first form, however, lacks

1 Shortly after plaintiff was hired by Vencor in April, 1997, she received an employee handbook and signed an acknowledgment form prepared by Hillhaven, a previous owner of Dover Rehab. In August 1997, she received a second employee handbook and signed a second acknowledgment form prepared by Vencor.

7 specific language relating to other personnel documents, stating

simply:

I also understand this Employee Handbook should not be construed a s , and does not constitute, a contract, express or implied, or a promise of employment for any specific duration.

That acknowledgment form also contains the following relevant

provision:

I also understand that no supervisor, manager or representative of Hillhaven other than the President has the authority to enter into any agreement, either oral or written, with me for employment for any specified period of time or make any promises or commitments contrary to the foregoing. Further, I understand that any employment agreement entered into by the President shall not be effective unless it is in writing.

Plaintiff’s theory is that because the first paragraph quoted

above does not specifically state that other company documents,

such as the human resources manual, cannot create an employment

contract, a jury could find that the anti-bumping provision in

the manual amounted to an enforceable contract right.

Plaintiff’s argument is undercut by the second quoted paragraph,

which specifies that an employee’s at-will status can be

superseded by an employment contract only by means of a written

8 agreement entered into by the President. No such agreement is

alleged here.

In short, there is simply no evidence from which it could be

found that plaintiff had an employment contract. Certainly, it

could be found that Vencor followed an anti-bumping policy and

that plaintiff was obligated to know and follow the instructions

set out in the manual describing that policy, but there is no

factual basis for finding that plaintiff had an employment

contract of any sort, much less one that entitled her to enforce

the anti-bumping policy should her employer decide not to follow

it. As a matter of law, plaintiff was an at-will employee.

Because she was an at-will employee, she was subject to discharge

for any reason, with limited exceptions not pertinent here. See

Harper v . Healthsource N.H., Inc.,

7 0 , 774 (1996)

(citing Cloutier v . Great Atl. & Pac. Tea Co.,

(1981)). Accordingly, defendant is entitled to summary judgment

on Count I I .

9 II. Count III

In Count I I I , plaintiff claims that defendant is liable for

negligent misrepresentation because Treadwell repeatedly told her

that her job was secure, and then terminated her. The false

statement on which plaintiff’s claim rests may be characterized

as either a failed prediction or a broken promise that

plaintiff’s employment would not be terminated by the company in

the future. Defendant is entitled to judgment as a matter of law

because plaintiff has produced no evidence to create a triable

issue as to the existence of a misrepresentation by defendant.

“The elements of [negligent misrepresentation] are a

negligent misrepresentation of a material fact by the defendant

and justifiable reliance by the plaintiff.” Snierson v . Scruton,

3 , 78 (2000) (citing Hydraform Prods. Corp. v . Am.

Steel & Alum. Corp.,

8 7 , 200 (1985)). 2 As for the

statement plaintiff claims to have been a misrepresentation,

2 Negligence, in this context, is the failure of “one who volunteers information to another not having equal knowledge, with the intention that he [or she] will act upon i t , to exercise reasonable care to verify the truth of his [or her] statements before making them.” Snierson,

(quoting Patch v . Arsenault,

(1995)) (alteration in the original).

10 a promise is not a statement of fact and hence cannot, as such, give rise to an action for misrepresentation, [but] a promise can imply a statement of material fact about the promisor’s intention and capacity to honor the promise. Hydraform Prods. Corp.,

. A promise, therefore, will only give rise to a claim of misrepresentation i f , at the time it was made, the defendant had no intention to fulfill the promise. Id. at 201.

Thompson v . The H.W.G. Group, Inc.,

9 8 , 700-01 (1995)

(parallel citations omitted).

Here, plaintiff does not claim that Treadwell ever told her

that her job was secure while simultaneously intending to

terminate her employment. And indeed, the September 4 , 1998,

statement by Treadwell on which plaintiff relies, to the effect

that Treadwell was being forced by Vencor’s financial troubles to

go back on her word to plaintiff, bespeaks a promise sincere when

made, but later broken as a result of changed conditions, rather

than an insincere promise made with no intention of keeping i t .

Unfortunately for plaintiff, only the second kind of broken

promise – one that was false when made – is actionable as

misrepresentation. Because no such promise is alleged (or

11 supported) here, defendant is entitled to judgment as a matter of

law on plaintiff’s negligent misrepresentation claim.

III. Counts IV, V , and VI

Defendant is also entitled to judgment as a matter of law on

Counts IV, V , and V I . While those counts assert tort claims,

this case i s , in substance, a contract action. See Antoniou v .

Kenick,

(1984) (quoting French v . R.S. Audley,

Inc.,

(1983)) (“The determination of whether an

action is a contract or a tort action is not controlled by the

form of the action[,] but by its substance.”). Here, plaintiff

asserts that defendant’s negligent training and supervision

caused two of its employees to act in a manner that breached her

employment contract and that the alleged breach caused her

emotional distress. Thus, this case is a contract action.

Moreover, “the facts constituting the breach of the contract [do

not] also constitute a breach of a duty owed by the defendant to

the plaintiff independent of the contract.” Lawton v . Great

Southwest Fire Ins. Co.,

0 7 , 613 (1978) (citing Busick

v . Home Owners Loan Corp.,

5 7 , 258 (1941); Dustin v .

Curtis,

(1907)). Accordingly, plaintiff’s tort

12 claims must fail as a matter of law. See

(“a breach of

contract standing alone does not give rise to a tort action”)

(citing Barrett v . New Eng. Tel. & Tel. Co.,

(1922));

see also Ellis v . Robert C . Morris, Inc.,

5 8 , 363

(1986), overruled on other grounds by Lempke v . Dagenais,

(1988).

Conclusion

For the reasons given, defendant’s motion for summary

judgment (document n o . 19) is granted. The Clerk of Court shall

enter judgment in accordance with this order and close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

May 3 0 , 2003

cc: William A . Mulvey, Jr., Esq. Jeffrey S . Brody, Esq.

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