Dulude v. Fletcher Allen Health Care, Inc., 01-090.

• Decision Date: 28 June 2002
• Docket Number: No. 01-090.,01-090.
• Parties: Sharon and Robert DULUDE v. FLETCHER ALLEN HEALTH CARE, INC.
• Court: Vermont Supreme Court

807 A.2d 390

Sharon and Robert DULUDE v. FLETCHER ALLEN HEALTH CARE, INC.

No. 01-090.

Supreme Court of Vermont.

June 28, 2002.

Francis X. Murray, South Burlington, for Plaintiff-Appellant.

Andre D. Bouffard and Steven P. Crowther of Downs Rachlin & Martin PLLC, Burlington, for Defendant-Appellee.

Present: AMESTOY, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ.

SKOGLUND, J.

Appellant Sharon Dulude appeals a ruling of the Chittenden Superior Court granting Fletcher Allen Health Care's (FAHC) motion for summary judgment on claims of breach of contract, promissory estoppel, discharge in violation of public policy, intentional infliction of emotional distress (IIED), and defamation. Dulude argues that there are genuine issues of material fact as to: (1) whether FAHC's communications and personnel manual altered her employment from at-will to just cause; (2) whether FAHC had just cause for discharging her; (3) whether FAHC made promises to Dulude for just cause employment on which Dulude reasonably relied; (4) whether FAHC violated public policy in terminating Dulude's employment; (5) whether FAHC's actions were outrageous and caused her extreme emotional distress and whether such claim is time-barred; and (6) whether FAHC defamed Dulude and whether such claim is time-barred. We affirm.

The material facts are as follows. Dulude was employed as a nurse with FAHC¹ from July 1, 1991, to April 20, 1995. Dulude did not sign a contract of employment, and the duration of her employment was open-ended. In the fall of 1992, FAHC terminated Dulude for allegedly diverting narcotics, falsifying her patient's medical records, and failing to meet the standard of practice regarding the administration of medication. A medication and narcotic audit was performed by a committee comprised of the Head of Pharmacy at FAHC, the Vice President of Nursing, the Nurse Manager, and the Head of Human Resources. Based on their audits, the committee felt there was enough evidence to substantiate the fact that Dulude's narcotic practice was significantly different from her coworkers'. Dulude appealed her termination to FAHC's Vice President of Nursing, and FAHC reinstated her on November 23, 1992.

Dulude's letter of reinstatement noted that her pattern of medicating patients was distinctly different from other professional nurses on her unit and that she, as an individual, repeatedly signed out and documented the use of as many Percocet in twenty-four hours as all unit nurses combined. The letter acknowledged that Dulude and FAHC had discussed Dulude's philosophy of pain medication and that her return to work would be premised on specific conditions requiring her to receive supervision and education in the administration of narcotic drugs.

On April 12, 1993, a patient complained that Dulude repeatedly and strongly urged him to accept Percocet for pain, despite his refusal, to the point of making him feel harassed. The complaint resulted in a letter of understanding² dated May 17, 1993, which outlined a protocol requiring Dulude to discuss patients' pain medication needs with a support person and gain the support person's consent prior to administering any controlled substance. The letter concluded: "[f]ailure to comply with any aspect of this letter will result in further disciplinary action and may result in termination."

On June 25, 1993, a decision-making leave³ was written for Dulude's failure to comply with the letter of understanding of May 17, 1993. Dulude, who was required to seek supervision and approval when dispensing medications, requested a non-support person to sign both the controlled substance record and the patient flow sheet while Dulude administered the medication. FAHC stated that continued employment was contingent on Dulude's compliance with the hospital policy with respect to controlled substances.

On October 29, 1993, a second letter of understanding noted Dulude's compliance with the decision-making leave of June 1993 and her general improvement in pain management skills. The letter stated that: "Any change in her pattern of administration which is deemed aberrant or any questionable issues surrounding the administration of controlled substances for pain will be evaluated.... This may lead to further investigations and a reinstatement of restrictions." All restrictions were then removed.

On March 23, 1994, a third letter of understanding addressed a second incident where Dulude, who came on duty at 11:20 p.m., administered Percocet to a patient at 11:30 p.m., and again at 3:30 a.m. The patient was extremely nauseated and exhausted the next day. Dulude's nurse manager noted that these medication interventions were not appropriate. This third letter of understanding also referred to another audit that was done on Dulude's unit, the results of which showed that Dulude consistently administered more Percocet than any other nurse. The letter strongly suggested that she get help in understanding her method of administering pain medication. Dulude agreed to consult with an outside counselor regarding her "reasons for" and her "method of" administering pain medication.

In September 1994, Dulude's shift supervisor stated that there was still concern over Dulude's aberrant controlled substance administration pattern and advised Dulude that all nurses on the shift, including Dulude, should administer no more than fifteen to thirty-five percent of the total pain medication administered on the unit. In November 1994, FAHC called Dulude and informed her that her figures for a given week were at seventy-two percent and that she needed to lower her numbers.

On December 11, 1994, a third patient complained that his Tylenol had been substituted for Percocet on two occasions. Dulude argues that she never substituted Tylenol for Percocet and any suggestion that she did would never have occurred but for the fact that her reputation had been ruined by false accusations in 1992. Dulude contends that had FAHC conducted a competent investigation of the 1994 episode, it would have discovered that no substitution ever occurred.

Finally, by letter dated February 9, 1995, FAHC notified Dulude that her employment would be terminated effective February 15, 1995. The letter outlined the several instances of patient complaints discussed above. The letter also referred to various audits performed by nurse clinicians, managers and administrators, which confirmed that Dulude had continually dispensed and administered more Percocet than any other nurse on her unit. FAHC noted in the letter that none of their attempts to counsel and educate Dulude produced more than a temporary improvement in her narcotic administration practices and that Dulude's practices created a level of patient risk that could not be tolerated at FAHC.

Dulude appeared before the grievance panel on March 9, 1995. The grievance panel denied her grievance on March 13, 1995. Dulude appealed this denial to the president and met with the president's designee on April 12, 1995. She received a certified letter from the designee on April 20, 1995, informing her that her appeal had been denied.

On April 17, 1998, Dulude filed a wrongful employment termination action and related tort claims in superior court against FAHC. The case was removed to federal court because of two federal constitutional claims: denial of due process and equal protection. These two claims were disposed of by the federal district court before the case was remanded to the superior court for resolution of Dulude's state claims. The issues presented to the superior court for resolution included: breach of contract, promissory estoppel, discharge in violation of public policy, intentional infliction of emotion distress, defamation, and loss of consortium.

On January 9, 2001, the superior court granted FAHC's motion for summary judgment on the breach of contract, promissory estoppel and defamation issues. FAHC filed a motion to amend the summary judgment decision, and the court made a later entry on March 8, 2001, dismissing Dulude's remaining claims of intentional infliction of emotional distress and discharge in violation of public policy. The superior court also dismissed the loss of consortium claim as a derivative claim that failed upon dismissal of the primary claims. Dulude then appealed the decision granting summary judgment to FAHC, except with respect to the loss of consortium claim.

In reviewing a grant of summary judgment, this Court applies the same standard as the trial court. Ross v. Times Mirror, Inc., 164 Vt. 13, 17-18, 665 A.2d 580, 582 (1995). Summary judgment is appropriate only when the moving party establishes that there is no genuine issue of material fact and that the party is entitled to judgment as a matter of law. Samplid Enters., Inc. v. First Vt. Bank, 165 Vt. 22, 25, 676 A.2d 774, 776 (1996). The nonmoving party may survive the motion if it responds with specific facts raising a triable issue and is able to demonstrate sufficient evidence to support a prima facie case. State v. G.S. Blodgett Co., 163 Vt. 175, 180, 656 A.2d 984, 988 (1995). If the nonmoving party fails to establish an essential element of its case on which it has the burden of proof at trial, the moving party is entitled to summary judgment as a matter of law. Id. In the present action, FAHC is entitled to summary judgment as a matter of law on all counts.

I.

Dulude first argues that the court erred in deciding on summary judgment the question of whether the employee manual and certain oral assurances made by FAHC amounted to modification of her at-will employment status to the effect of prohibiting her termination without cause. The court held that Dulude's evidence did not show, as a matter or law, that a modification had occurred. She claims that the question should have been submitted to a jury for determination.

As an employee hired for an indefinite period, Dulude is presumed to have been an at-will...