Cormier v. Genesis Healthcare LLC

• Decision Date: 15 December 2015
• Docket Number: Docket No. Cum–14–216.
• Citation: 129 A.3d 944
• Parties: Karen CORMIER v. GENESIS HEALTHCARE LLC, et al.
• Court: Maine Supreme Court

129 A.3d 944

Karen CORMIER

v.GENESIS HEALTHCARE LLC, et al.

Docket No. Cum–14–216.

Supreme Judicial Court of Maine.

Argued: Feb. 10, 2015.

Decided: Dec. 15, 2015.

Guy D. Loranger, Esq. (orally), Law Office of Guy D. Loranger, P.A., Old Orchard Beach, for appellant Karen Cormier.

James R. Erwin, Esq. (orally), and Michelle Y. Bush, Esq., Pierce Atwood LLP, Portland, for cross-appellants Genesis HealthCare LLC and Scarborough Operations LLC.

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.

HJELM, J.

[¶ 1] In January 2012, Karen Cormier was discharged from employment as a certified nursing assistant (CNA) at a nursing home owned by Genesis Healthcare LLC. She commenced this action in the Superior Court (Cumberland County), alleging that she was terminated because she had made complaints about staffing and patient safety, and that Genesis thereby violated the Maine Whistleblowers' Protection Act (WPA), 26 M.R.S. §§ 831 –840 (2014). The court (Warren, J. ) granted Genesis's motion for summary judgment, concluding that although Cormier presented evidence that her complaints constituted protected activity, she failed to produce evidence of a causal relationship between the complaints and her termination. Cormier appealed, and Genesis cross-appealed. We conclude that the trial court correctly determined that the evidence is sufficient to allow a reasonable jury to find that Cormier's complaints were protected under the WPA. We also conclude, however, that the record on summary judgment could reasonably support a finding that the adverse employment action was substantially motivated at least in part by retaliatory intent. We therefore vacate the judgment and remand for further proceedings.

I. BACKGROUND

[¶ 2] The summary judgment record contains the following evidence as viewed in the light most favorable to Cormier, who is the non-moving party. See Angell v. Hallee, 2014 ME 72, ¶ 16, 92 A.3d 1154. Genesis is the parent company of Scarborough Operations, LLC, which owns Pine Point Center, a nursing home in Scarborough.¹ Cormier is a CNA who began working at Pine Point Center in 2002. Beginning in 2009, Genesis reduced staffing levels on Cormier's shift so that there were usually three or four CNAs working in her unit, rather than four or five. This meant that CNAs were sometimes unable to get to the residents promptly when they rang their call bells, causing delays both in helping residents use the bathroom and in transferring residents from their beds to chairs or wheelchairs. Cormier believed that these delays put residents at a higher risk for falls because they would try to get out of bed by themselves.

[¶ 3] In the spring of 2011, Cormier spoke to Michelle Dewitt, the Director of Nursing, regarding her concerns about the staffing levels, stating that she was worried that CNAs would not be able to promptly respond to call bells. Cormier also told a charge nurse "quite a few times" throughout 2011 that residents were upset that call bells were not being answered promptly, and she told two other charge nurses that she was frustrated trying to help all of the residents at the reduced staffing level. In particular, she reported to one charge nurse that she "was concerned about the safety of the residents if I was not able to get to them on time." Finally, on December 28, 2011, after the facility lost power when only three CNAs were working in Cormier's unit, Cormier complained to the nurse educator that there were not enough CNAs to help the residents get up for dinner while also dealing with the power outage.

[¶ 4] On December 31, 2011, soon after Cormier's most recent complaint, Cormier was approached by Michelle Dewitt because a charge nurse had overheard another CNA talking about Cormier hitting a resident on the hand while caring for her. After meeting with Dewitt, Cormier signed a statement reporting that on December 28, 2011, a resident became combative and that she tried to hold the resident's hand so that the resident could not hit her. Cormier was then informed that she was being suspended pending an investigation into the incident. Later, Cormier realized that she had not been assigned to that resident's wing on December 28 and called Dewitt to tell her that her statement was incorrect.

[¶ 5] Dewitt interviewed the CNA who had witnessed the incident, the resident's roommate, and the charge nurse who had overheard the discussion about the incident. Leslie Currier, the Pine Point Center Administrator, then reviewed Dewitt's investigative material and Cormier's personnel file. Following that review, Currier contacted Mary Norton, Genesis's Regional Human Resources Manager, to consult with her about the possibility of terminating Cormier. Norton supported Currier's conclusion that Cormier should be terminated, and on January 4, 2012, Dewitt and Currier met with Cormier. After Cormier reiterated that she was not working in the resident's wing on the day of the alleged incident, Currier informed her that she was being terminated due to that incident.

[¶ 6] In December 2012, Cormier filed a complaint in Superior Court alleging that her termination constituted retaliation in violation of the WPA. See 26 M.R.S. § 833. She alleged that her complaints about understaffing constituted protected activity pursuant to the WPA and that she was terminated in retaliation for making the complaints. Genesis moved for summary judgment, arguing both that Cormier's complaints were not protected activity and that her complaints were not causally related to her termination. The court concluded that there was a dispute of material fact as to whether Cormier's complaints were protected activity pursuant to the WPA, but it issued a summary judgment in favor of Genesis on the ground that Cormier had not "demonstrated that there is a triable issue of fact as to the existence of a causal connection between the staffing complaints she made and defendants' decision to terminate her after the alleged slapping incident." Cormier appealed, and Genesis cross-appealed.

II. DISCUSSION

[¶ 7] "We review the grant of a motion for summary judgment de novo," viewing the evidence "in the light most favorable to the party against whom the summary judgment has been granted in order to determine if there is a genuine issue of material fact." Budge v. Town of Millinocket, 2012 ME 122, ¶ 12, 55 A.3d 484 (quotation marks omitted). "A genuine issue of material fact exists when the factfinder must choose between competing versions of the truth." Dyer v. Dept. of Transp., 2008 ME 106, ¶ 14, 951 A.2d 821 (quotation marks omitted). When the party moving for summary judgment is the defendant, "the burden rests on that party to show that the evidence fails to establish a prima facie case" for the claim. Budge, 2012 ME 122, ¶ 12, 55 A.3d 484.

[¶ 8] A claim for violation of rights established under the Maine WPA consists of three elements: (1) that the employee engaged in activity protected by the WPA; (2) that the employer imposed adverse employment action against the employee; and (3) that there was a causal connection between the protected activity and the adverse employment action. See, e.g., Fuhrmann v. Staples Office Superstore East, Inc., 2012 ME 135, ¶ 15, 58 A.3d 1083 ; Walsh v. Town of Millinocket, 2011 ME 99, ¶ 24, 28 A.3d 610. There is no dispute that Cormier was the subject of an adverse employment action when she was terminated. We therefore are left with the question of whether the record on summary judgment is sufficient to generate triable claims that Cormier engaged in protected activity and that the adverse employment action was motivated at least in part by any such activity—in other words, whether Cormier has presented a prima facie case of all elements of her WPA claim. See Brady v. Cumberland Cty., 2015 ME 143, ¶ 14, 126 A.3d 1145.² We consider those contested issues separately.

A. Protected Activity

[¶ 9] First, in its cross-appeal, Genesis argues that the court erroneously determined that on this record, a jury could reasonably find that Cormier's complaints about the staffing levels at Genesis rose to the level of protected activity.

[¶ 10] The Legislature has defined the categories of employee conduct that are protected under the WPA. Here, the court concluded that, of those categories, Cormier generated a triable claim that her complaints about staffing levels satisfied the following statutory definition of protected activity:

The employee, acting in good faith, or a person acting on behalf of the employee, reports to the employer or a public body, orally or in writing, what the employee has reasonable cause to believe is a condition or practice that would put at risk the health or safety of that employee or any other individual.

26 M.R.S. § 833(1)(B).

[¶ 11] Although this provision is not triggered by every complaint that relates to safety, it protects employees who, in good faith, make safety-related complaints when the employee reasonably believes that a dangerous condition or practice exists. Stewart–Dore v. Webber Hosp. Ass'n, 2011 ME 26, ¶ 11, 13 A.3d 773. A complaint is made in good faith if the employee's motivation is to stop a dangerous condition. Id. A complaint is supported by reasonable cause when the employee has a subjective and objectively reasonable belief that a dangerous condition or practice exists. Id.

[¶ 12] Cormier presented evidence that she complained a number of times about understaffing at Genesis and the dangerous effect of those staffing practices on residents. She also presented evidence that some residents were harmed or exposed to harm by slow response time resulting from inadequate staffing levels. This evidence is sufficient to support a finding that Cormier held a reasonable belief that staffing levels compromised the safety of the residents and that her complaints would bring the safety issue to Genesis's attention.

[¶ 13] Genesis argues that because staffing levels are subject to state regulation,...