Theriault v. Genesis Healthcare LLC
Opinion
Plaintiff-appellant Patricia Theriault bills this case as one in which the district court ignored the teachings of the Maine Supreme Judicial Court (known in its appellate capacity as the Law Court) and improperly relied on the
McDonnell Douglas
framework,
see
*346
McDonnell Douglas Corp.
v.
Green
,
I. BACKGROUND
We glean the facts from the summary judgment record. Theriault, a certified nursing assistant (CNA), began working in 1997 at RiverRidge, a nursing facility located in Kennebunk, Maine, licensed by the Maine Department of Health and Human Services (DHHS). The defendant, Genesis HealthCare LLC (Genesis), is the parent company of Kennebunk Operations LLC, which owns and operates RiverRidge. Most of the patients at RiverRidge are in assisted living, and many suffer from neurological deficits. As a licensed nursing facility, RiverRidge is required by law to report any allegations of patient abuse as soon as it learns of them.
See
Theriault worked at RiverRidge alongside Cheyenne Wagner, who was both a CNA and a certified residential medication assistant. On November 11, 2014, Wagner approached Elizabeth Moore, the director of human resources at RiverRidge, to complain about Theriault peering into Wagner's purse and asking what medications she was taking. Wagner also lamented that Theriault had engaged in harassing behavior on Facebook. As a result of Wagner's complaint, Theriault was reassigned to a different unit so that the two women would not have to work together.
Six days later, Theriault asked Moore why her work schedule had been changed. Moore did not mention Wagner's complaints but simply told Theriault that employee schedules varied based on staffing needs in particular areas. During this conversation, Theriault griped about Wagner, expressing her view that Wagner had been rude because Wagner had refused to discuss personal problems while at work. Moore cautioned Theriault against trying to engage in personal conversations in the workplace.
Theriault then approached Sarah Louise Corson, the director of nursing at RiverRidge, to remonstrate about Wagner. Corson responded that she had no time for a meeting and asked Theriault to submit her grievances in writing.
Moore and Corson worried that Theriault's conflict with Wagner might lead Wagner to leave RiverRidge. On November 20, 2014, Moore, Corson, and Robert Straznitskas (RiverRidge's administrator) met with Wagner to discuss her concerns. Wagner brought a handwritten note to the *347 meeting, listing several incidents of worrisome behavior on Theriault's part. For instance, Wagner's note mentioned seeing Theriault grab a resident by the front of his shirt and shake him. It also mentioned several untoward comments allegedly made by Theriault. One time, Theriault had asked another coworker for a gun "to handle" a difficult resident. On another occasion, Theriault asked a pharmacy employee if he had a baseball bat to use on a resident. Similarly, Theriault once told the family of a resident that she had "a noose and a bucket" ready for his use. Wagner reported that this statement was very upsetting to the family.
The management team (Corson, Moore, and Straznitskas) found Wagner's account troubling and thought that the incident in which Theriault was said to have shaken a resident might well amount to patient abuse. 1 As required by RiverRidge policy, Corson reported the incident to DHHS, and Theriault was immediately suspended pending an investigation. In addition, Corson scheduled a meeting with Theriault for the next day to discuss the insights furnished by Wagner. According to Theriault, she was not told of the allegations against her and assumed that she would be meeting to discuss her grievances against Wagner.
When she showed up for the scheduled meeting, Theriault brought with her a written summary of her concerns regarding Wagner's workplace behavior. The summary described several episodes in which Wagner supposedly was rude to Theriault, including once when Theriault asked if "anything was going on that I should know about" to which Wagner responded "no not really" in a "very rude[ ]" manner. Theriault's summary also complained that, as Wagner "walked by [Theriault,] she turned away and stuck her nose up in the air." Later that same evening, Wagner responded rudely when Theriault asked her if she was going on a break. After Wagner returned in about twenty minutes, Theriault thought that she was in a much more pleasant mood. 2
Theriault also wrote that she had observed Wagner texting on her cell phone "many times" while distributing medications. Texting while distributing medications is (for obvious reasons) considered unsafe and is prohibited by RiverRidge policies.
Corson, Straznitskas, and a Genesis executive were in attendance at the November 21 meeting. They perused Theriault's written summary, but quickly turned to the allegations that had earlier been leveled against her. Theriault acknowledged that she may have made the three statements attributed to her by Wagner, but insisted that they were made in jest. With respect to the claim that she had shaken a resident, she conceded that she might have grabbed him by the front of his shirt but only to prevent him from falling.
Moore and Corson investigated the allegation that Theriault had shaken the resident. They interviewed the resident himself (who has a serious brain injury and memory loss) as well as his roommates, but unearthed no corroboration. They also interviewed Rosa Vasquez (a CNA), who stated that she had seen Theriault grab the resident by the shirt and shake him *348 during a moment of frustration while moving the resident into his wheelchair. Vasquez intervened, told Theriault to take a break, and completed the transfer. She did not report the incident contemporaneously, but told Wagner about it at a later date.
Moore and Corson found Vasquez's account to be credible and concluded that Theriault had grabbed the resident in a "non-clinical manner." They also concluded that she had made the three highly inappropriate statements attributed to her by Wagner. Citing these four findings, Moore asked the company's regional headquarters for permission to fire Theriault. That permission was forthcoming, and Theriault was terminated on November 25, 2014. The DHHS subsequently conducted its own investigation into the shaking incident and determined that no patient abuse had occurred.
Theriault did not go quietly into this bleak night. Asserting that her dismissal was in retaliation for her complaints against Wagner, she filed a claim with the Maine Human Rights Commission and received a right-to-sue letter.
See
This timely appeal ensued. In it, Theriault challenges only the adverse judgment on her WPA claim.
II. ANALYSIS
"The role of summary judgment is to pierce the pleadings" and probe the proof to ascertain whether a need for trial exists.
Kearney
v.
Town of Wareham
,
A swing of the summary judgment axe can be averted if the nonmoving party adduces competent evidence demonstrating the existence of a genuine dispute about a material fact.
See
Murray
v.
Kindred Nursing Ctrs. W. LLC
,
With this rudimentary backdrop in place, we turn first to the analytic framework *349 that governs the analysis of Theriault's WPA retaliation claim. We then consider the merits.
A. The Analytic Framework .
Sitting in diversity jurisdiction, a district court is obliged to apply state substantive law and federal procedural law.
See
Gasperini
,
The WPA prohibits retaliation against an employee who makes a "good-faith report of ... 'a condition or practice that would put at risk the health or safety of' any person."
Murray
,
In the case at hand, the first two of these predicate elements are not in dispute. Theriault's complaint that Wagner was texting while distributing medications is plainly protected activity in the form of a report about a "practice that would put at risk the health or safety" of the residents,
The parties hotly dispute what evidence of causation should have been considered at the summary judgment stage. Theriault argues that under Maine law a court, when faced with an employer's summary judgment motion in a WPA retaliation case, may consider only the plaintiff's evidence. Genesis takes a contrary position, contending that the court was obliged to consider all of the evidence (including its evidence about its reasons for terminating Theriault) when determining whether to grant summary judgment. Because the district court rejected Theriault's understanding of Maine law and instead considered all of the evidence, Theriault exhorts us to find that the court applied (at least functionally) the McDonnell Douglas framework and thus erred. On its own terms, Theriault's argument fails. 4
*350
Some background is helpful to put Theriault's argument into perspective. As a general rule, federal courts employ the
McDonnell Douglas
burden-shifting framework when analyzing employment retaliation claims at the summary judgment stage. Under that framework, the burden is on the plaintiff to make out a "prima facie case" which requires only "the production of admissible evidence, which, if uncontradicted, would justify a legal conclusion of [retaliation]."
Sanchez
v.
P.R. Oil Co.
,
In
Brady
v.
Cumberland County
, the Law Court shelved the tripartite
McDonnell Douglas
burden-shifting framework in favor of a singular inquiry: "whether the record as a whole would allow a jury to reasonably conclude that the adverse employment action was motivated at least in part by retaliatory intent."
The upshot is that when the
Brady
court shelved the
McDonnell Douglas
framework, it perforce jettisoned
McDonnell Douglas
's prima facie case requirement, which it criticized as "limited in ... effect" and "fall[ing] short of [requiring] a body of evidence that would be sufficient to permit a finder of fact to conclude that the employer acted unlawfully."
The Law Court has described this Maine-specific retaliation paradigm as embodying a "prima facie case" requirement.
See
,
e.g.
,
Notwithstanding Maine's new paradigm, all roads lead to Rome: in the final analysis, the Maine-specific retaliation paradigm obligates the plaintiff to adduce precisely the same quantum of proof that she would have had to adduce to defeat summary judgment under the
McDonnell Douglas
framework.
See
Brady
,
To be sure, Theriault resists this conclusion. She interprets
Brady
to mean that a court, faced with a defendant's summary judgment motion in a WPA retaliation case, may consider only the plaintiff's evidence. Theriault's interpretation is incorrect:
Brady
's new approach simply means that, at summary judgment, "the parties are entitled to present evidence of the reasons for the employer's action, but without any need to follow the
McDonnell Douglas
burden-shifting structure."
We now come full circle. Once
Brady
's Maine-specific retaliation paradigm is properly understood, it becomes readily evident that the court below grasped the essence of
Brady
and was faithful to it, explicitly eschewing any reliance on the
McDonnell Douglas
framework.
See
Theriault
,
B. The Merits .
Having determined that the court below did not employ the McDonnell Douglas framework but, rather, employed the analytic framework prescribed by the Law Court for use in WPA retaliation cases, we turn to the merits of its summary judgment ruling. Following an appraisal of the record as a whole, we agree with the district court that Theriault has failed to adduce sufficient evidence to make out a genuine issue of material fact on causation. We explain briefly.
Theriault claims, in essence, that during the course of RiverRidge's investigation into her alleged misconduct, its motivations changed from legitimate to retaliatory when she complained about Wagner's texting. Building on this foundation, she says that this retaliatory motive prompted *352 her firing. This finding of causation, Theriault suggests, can be supported in three ways. We examine her three suggestions sequentially.
To begin, Theriault argues that the close temporal relationship between her November 21 "texting" complaint against Wagner and her firing a few days later is enough, in and of itself, to warrant an inference of causation.
6
The case law repudiates this argument: while Theriault's dismissal followed closely on the heels of her protected activity, "that fact, standing alone, is not enough to trigger an inference of causation" that will withstand summary judgment.
Kearney
,
Theriault disagrees, relying principally on the Law Court's decision in
Cormier
. That reliance is mislaid. In
Cormier
, the Law Court determined that temporal proximity between the protected activity and the adverse employment action could create a triable issue of fact as to whether Cormier's employer knew about her protected activity.
See
Cormier
,
This holding is consistent with earlier Maine cases.
See
,
e.g.
,
Stanley
,
Next, Theriault argues that there was evidence in the record from which a jury *353 could find her employer's stated reasons for firing her pretextual. This argument amounts to nothing more than a post-hoc rationalization.
A plaintiff may show pretext by establishing "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons" for the challenged employment action.
Cookson
v.
Brewer Sch. Dept.
,
Leaving to one side the fact that the "shaking" incident was not the sole reason for Theriault's dismissal, there is something to be said for Theriault's premise. As Theriault suggests, the evidence may be such as to create a factual dispute about whether patient abuse actually occurred. But the conclusion that Theriault would have us draw from this premise-that a finding of pretext would likewise be permissible-does not follow. "[E]vidence of a decisionmaker's mistaken judgment is not dispositive of the question of pretext unless that evidence would permit the factfinder to conclude that the stated nondiscriminatory justification for the adverse employment action was either knowingly false or made in bad faith."
Murray
,
It is true, of course, that DHHS eventually concluded that no patient abuse occurred. It does not follow, though, that RiverRidge acted in bad faith in concluding that Theriault's actions were inappropriate. Theriault has identified no facts that contradict Genesis's basic defense: that RiverRidge administrators conducted an investigation into the allegations of misconduct made against Theriault, found those allegations to be substantiated in material part, and based the decision to terminate her employment on that finding.
See
Kearney
,
If more were needed-and we doubt that it is-Moore's request for authorization to discharge Theriault also cited Theriault's *354 inappropriate comments, which threatened harm to residents. The comments themselves are jarring. Theriault once asked a nurse for a gun "to handle" a resident; on another occasion, she asked for a baseball bat to use on a different resident; and on yet a third occasion, she told a resident's family that she had a "noose and a bucket" ready for his use. Theriault attempts to minimize these statements by saying that they were made in jest and, thus, could not have grounded a good-faith decision to fire her.
Theriault's appraisal is incorrect. It is common ground that inappropriate statements may constitute a basis on which to terminate an employee even if supposedly made in jest.
See
Pina
v.
Children's Place
,
Theriault's final argument rests on a claim of disparate treatment: she posits that the fact that she was terminated and Wagner was not is sufficient to ground an inference of pretext. In support, she cites cases holding that pretext may be inferred from proof that similarly situated employees were treated differently.
See
,
e.g.
,
Murray
,
The relevant question is whether a reasonable person, looking objectively at the two incidents, would think them roughly equivalent and the two employees similarly situated.
See
Ray
v.
Ropes & Gray LLP
,
To sum up, Theriault has attempted to discredit her employer's stated reasons for terminating her, but she has not succeeded in impugning them. "Casting aspersions is not enough."
Murray
,
III. CONCLUSION
We summarize succinctly. The district court faithfully followed the teachings of the Law Court, applied that court's new, Maine-specific retaliation paradigm to Theriault's WPA retaliation claim, and granted summary judgment in favor of Genesis. Bearing in mind that the issue of whether the McDonnell Douglas framework applies to a WPA retaliation claim in a diversity case is not before us, see supra note 4, we discern no error either in the district court's analysis or in its evaluation of the summary judgment record.
We need go no further. The entry of summary judgment in favor of Genesis is
Affirmed .
In Maine, patient "abuse" is defined as "the infliction of injury ... or cruel punishment that causes or is likely to cause physical harm or pain or mental anguish."
Theriault now claims that this behavior led her to suspect that Wagner was abusing drugs. Such a claim, however, comes as a bolt from the blue: Theriault never mentioned such a suspicion to management at any time during her tenure at RiverRidge.
Although Genesis is the sole defendant named in this action, it has not questioned Theriault's allegation that it should be treated as her employer in connection with her WPA claim.
As framed, Theriault's argument presumes that the choice of what framework should be used to analyze a WPA retaliation claim at the summary judgment stage is a matter of state substantive law, not a matter of federal procedure. While it can be argued that the
McDonnell Douglas
framework is procedural,
see
,
e.g.
,
Buytendorp
v.
Extendicare Health Servs., Inc.
,
There is a puzzling footnote in
Carnicella
v.
Mercy Hospital
,
Here, the temporal relationship upon which Theriault's argument depends is undermined to some extent by the fact that RiverRidge suspended Theriault for her reported actions and comments before Theriault made any complaint about Wagner's alleged texting. For summary judgment purposes, however, we assume that the relevant temporal relationship was between Theriault's protected activity and her firing without regard to the timing of her suspension.
Indeed, Theriault herself does not contend that Vasquez lied. She only contends that Vasquez mis-judged the intent behind Theriault's actions.
Reference
- Full Case Name
- Patricia THERIAULT, Plaintiff, Appellant, v. GENESIS HEALTHCARE LLC, Defendant, Appellee.
- Cited By
- 127 cases
- Status
- Published