Gammon v. Crisis

• Decision Date: 19 January 2011
• Docket Number: No. 1:09–cv–00236–JAW.,1:09–cv–00236–JAW.
• Parties: Ellen GAMMON, Plaintiff,v.CRISIS AND COUNSELING CENTERS, INC., Defendant.
• Court: U.S. District Court — District of Maine

762 F.Supp.2d 165

Ellen GAMMON, Plaintiff,

v.CRISIS AND COUNSELING CENTERS, INC., Defendant.

No. 1:09–cv–00236–JAW.

United States District Court, D. Maine.

Jan. 19, 2011.

Guy D. Loranger, Nichols, Webb & Loranger, P.A., Saco, ME, for Plaintiff.David A. Strock, Eric J. Uhl, Fisher & Phillips, LLP, Portland, ME, for Defendant.

ORDER ON MOTION FOR SUMMARY JUDGMENT

JOHN A. WOODCOCK, JR., Chief Judge.

The Court concludes that a former employee of a mental health services company produced sufficient evidence to generate genuine issues of material fact as to whether the Defendant violated the Maine Whistleblower Protection Act (MWPA) by taking an adverse employment action against her in retaliation for her protected activity. Accordingly, the Court denies the Defendant's motion for summary judgment.

I. STATEMENT OF FACTSA. Procedural History

On June 9, 2009, Ellen Gammon filed a complaint against her former employer, Crisis and Counseling Centers, Inc. (Crisis & Counseling), alleging a violation of the MWPA, 26 M.R.S. § 831 et. seq.¹ Compl. ¶ 1 (Docket # 1). On July 28, 2010, Crisis & Counseling moved for summary judgment. Def. Crisis and Counseling Center's Mot. for Summ. J. (Docket # 28) ( Def.'s Mot.). On August 23, 2010, Ms. Gammon responded to Crisis & Counseling's motion for summary judgment. Pl.'s Resp. in Opp'n. to Def.'s Mot. for Summ. J. (Docket # 38) ( Pl.'s Resp.). On September 10, 2010, Crisis & Counseling replied to Ms. Gammon's response. Def.'s Reply Mem. in Supp. of Mot. for Summ. J. (Docket # 45) ( Def.'s Reply ).

B. Quibbles

The parties raised a number of issues regarding the facts the Court should consider for summary judgment purposes.

1. District of Maine Local Rule 56(b)

Ms. Gammon requests that the Court strike a number of paragraphs in Crisis & Counseling's statement of material facts on the ground that they contain more than one alleged fact in violation of the District's Local Rule 56(b). Pl.'s Resp. to Def.'s Statement of Material Facts ¶¶ 1, 10, 11, 14–16, 23, 24, 27, 28, 31–35, 38, 48 (Docket # 39) (PRDSMF). The Court has previously explained that Local Rule 56(b) does not require that each paragraph include only a single assertion. D. Me. Loc. R.. 56(b); Randall v. Potter, 366 F.Supp.2d 120, 122 (D.Me.2005); Capozza Tile Co., Inc. v. Joy, 223 F.Supp.2d 307, 313 n. 2 (D.Me.2002). Furthermore, “conducting an intensive line-by-line review of [the alleged] violations of Local Rule 56 would do little to assist the court in achieving the goals of this local rule or resolving the merits of the pending [motion].” Burchill v. Unum Life Ins. Co. of Am., 327 F.Supp.2d 41, 43 (D.Me.2004). The Court denies Ms. Gammon's request to strike.

2. Ms. Gammon's Post–Deposition Affidavit

Crisis & Counseling argues that the Court cannot consider any of Ms. Gammon's statements of fact that rely on her post-deposition affidavit. Def.'s Reply at 1. It argues that the affidavit “contradicts her own deposition testimony” and “attempts to create the appearance of triable issues of fact.” Id.

Crisis & Counseling is correct that “[w]hen an interested witness has given clear answers to unambiguous questions, [s]he cannot create conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed.” Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4–5 (1st Cir.1994). However, that rule does not bar all statements in a post-deposition affidavit. “A subsequent affidavit that merely explains, or amplifies upon, opaque testimony given in a previous deposition is entitled to consideration in opposition to a motion for summary judgment.” ² Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 26 (1st Cir.2002).

Crisis & Counseling's first request to strike on this ground responds to paragraph twenty-one of Ms. Gammon's Statement of Additional Material Facts. DRPSAMF ¶ 21; Pl.'s Statement of Additional Material Facts ¶ 21 (Docket # 40) (PSAMF). Paragraph twenty-one asserts that Ms. Gammon went online to confirm that Crisis & Counseling's billing practices were illegal and cites websites she says confirmed her belief. PSAMF ¶ 21. Consistent with this statement, Ms. Gammon testified in her deposition that she went online at the office and found something to suggest that Crisis & Counseling's billing practices violated licensing rules. Def. Crisis & Counseling Center's Statement of Material Fact in Support of its Mot. for Summ. J. (Docket # 29) (DSMF) at Attach. 1 ( Gammon Dep.) at 169:16–25. However, Ms. Gammon also stated that she could not remember where she found this information. Gammon Dep. at 170:2–5. In her affidavit, Ms. Gammon mentions specific websites she says confirmed that the Maine law and regulation required transportation to be billed separately from assessments. Aff. of Ellen Gammon ¶ 5 (Docket # 41) ( Gammon Aff.). She thus recalled in her affidavit what she could not recall during her deposition. To fully comply with Colantuoni, Ms. Gammon should have explained why her memory was refreshed, but it seems apparent that she later located the government websites she could not immediately recall at the deposition. Since the inference is obvious and since the import of the statement is not the truth of the content of the website, but whether Ms. Gammon had a reason for believing Crisis & Counseling was acting inappropriately, paragraph twenty-one amplifies her deposition testimony. The Court will not disregard it. The Court denies Crisis & Counseling's request to strike paragraph twenty-one.

Crisis & Counseling also requests to strike Ms. Gammon's statement that she complained about billing practices to her team leader, Christy Labonte. DRPSAMF ¶ 24; PSAMF ¶ 24. Most of the deposition testimony Crisis & Counseling claims is contradicted by her affidavit deals with whether Ms. Gammon had sufficient knowledge of billing practices to make a complaint, not whether she made a complaint at all. The only testimony Crisis & Counseling cites that could be conceivably construed as contradicting her assertion that she complained to Ms. Labonte is testimony that Ms. Gammon sought clarification about the law because she was not positive whether the billing practices were illegal. DSMF ¶¶ 47 (citing Gammon Dep. 166:9–13, 168:18–20, 170:6–7, 177:22–25, 178:1). Asking for clarification at one time does not rule out making a complaint at another, and unfamiliarity with a law does not rule out a valid suspicion of its violation. Furthermore, Ms. Gammon explicitly said in her deposition that she spoke with Christy Labonte about the billing practices. Gammon Dep. 170:8–10. Crisis & Counseling cites nothing to clarify the nature of this conversation. The Court denies Crisis & Counseling's request to strike paragraph twenty-four of Ms. Gammon's statement of additional facts.

Next, Crisis & Counseling seeks to strike Ms. Gammon's statement that she complained about billing for travel time within weeks of her termination. DRPSAMF ¶ 25; PSAMF ¶ 25. Again, her affidavit is more specific than her deposition testimony. Crisis & Counseling cites deposition testimony in which Ms. Gammon says that she could not recall exactly when she spoke with her supervisor, Don Williams, or her team leader, Christy Labonte. DSMF ¶¶ 39, 47 (citing Gammon Dep. 169:4–13, 170:11–14). In her affidavit, however, she states that she “made the above complaints about billing for travel time up to within weeks of my termination.” Gammon Aff. ¶ 5. Ms. Gammon's inability at her deposition to recall the timing of two specific conversations does not directly contradict her later general statement that she complained about billing for travel time within weeks of her termination.³ The Court denies Crisis & Counseling's request to strike paragraph twenty-five of Ms. Gammon's statement of additional material facts.

Crisis & Counseling also seeks to strike Ms. Gammon's statement that, based on her training and experience, she understood it to be fraud to charge for an assessment when a client refused to be assessed and an assessment was not done. DRPSAMF ¶ 27; PSAMF ¶ 27. Ms. Gammon said both in her deposition and in her affidavit that she understood this billing practice to be fraud. Gammon Dep. 171:7–13; Gammon Aff. ¶ 6. Crisis & Counseling fails to direct the Court to any contradiction between that deposition testimony and her affidavit. The Court denies Crisis & Counseling's request to strike paragraph twenty-seven of Ms. Gammon's statement of additional material facts.

Crisis & Counseling objects to Ms. Gammon's statement that she complained about the company charging for crisis follow-up when no crisis follow-up occurred. DRPSAMF ¶ 32; PSAMF ¶ 32. Again, Crisis & Counseling fails to direct the Court to any contradiction. Instead, it cites testimony that Ms. Gammon did not know what was on the final bills that Crisis & Counseling sent out to its clients, attempting to undercut Ms. Gammon's foundation for making a complaint. DRPSAMF ¶ 32 (citing DSMF ¶¶ 44–47). Ms. Gammon's ignorance of the specific contents of client bills does not contradict her contention that she complained about the company charging for crisis follow-up when no follow-up occurred. The Court denies Crisis & Counseling's request to strike paragraph thirty-two of Ms. Gammon's statement of additional material facts.

Crisis & Counseling also seeks to strike Ms. Gammon's statement that she complained to Don Williams about the company's failure to follow a certain safety practice within the last six months of her employment. DRPSAMF ¶ 41; PSAMF ¶ 41. Crisis & Counseling cites nothing in the record to support that there is a contradiction between the deposition testimony and affidavit. The Court denies this request to strike.

Finally, Crisis & Counseling seeks to strike Ms. Gammon's statement that during the monthly group supervision meetings up to the time of her termination, Ms. Gammon...