Kelley v. Corr. Med. Servs., Inc.

• Decision Date: 06 February 2013
• Docket Number: No. 11–2246.,11–2246.
• Citation: 707 F.3d 108
• Parties: Katherine KELLEY, Plaintiff, Appellant, v. CORRECTIONAL MEDICAL SERVICES, INC., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

707 F.3d 108

Katherine KELLEY, Plaintiff, Appellant,

v.CORRECTIONAL MEDICAL SERVICES, INC., Defendant, Appellee.

No. 11–2246.

United States Court of Appeals,First Circuit.

Feb. 6, 2013.

Guy D. Loranger, with whom Nichols, Webb & Loranger, P.A., was on brief, for appellant.

Matthew J. LaMourie, with whom Michael G. Messerschmidt and Preti, Flaherty, Beliveau & Pachios, LLP was on brief, for appellee.

Before LYNCH, Chief Judge, TORRUELLA and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Plaintiff Katherine Kelley appeals from the district court's grant of summary judgment in favor of defendant Correctional Medical Services, Inc. (“CMS”) on her retaliation claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12203(a), and the Maine Human Rights Act (“MHRA”), Me.Rev.Stat. Ann., tit. 5, § 4572(2). Kelley contends that the district court erred in finding that she had failed to raise a genuine dispute of material fact as to whether CMS's stated reason for her termination was a pretext for retaliatory animus. Concluding that Kelley has presented sufficient evidence to bring to a jury, we vacate the entry of summary judgment on her retaliation claims.¹

I.

The facts are drawn from the deposition testimony and affidavits, as well as documentary evidence. We recount the relevant events in the light most favorable to the nonmoving party, see Roman v. Potter, 604 F.3d 34, 38 (1st Cir.2010), and draw all reasonable inferences in her favor, see Acevedo–Parrilla v. Novartis Ex–Lax, Inc., 696 F.3d 128, 131–32 (1st Cir.2012).

A. The CMS Facilities and Kelley's Job Responsibilities

CMS provides medical staffing and health care services for the inmates at the Maine State Prison. Kelley is a licensed practical nurse and began employment with CMS at the prison in spring 2007.

CMS staff treats inmates at the prison in five locations. Three of these are relevant here: the main clinic, the infirmary, and the “close unit.” In the main clinic, inmates receive treatment for various medical issues. Patients similarly receive treatment in the infirmary, but can remain there for longer periods or overnight if they require constant monitoring. The close unit serves as a site for distributing medication to the inmates.

Nurses stationed at the main clinic bear responsibility for the narcotics count, also called “the count.” At the conclusion of each shift, the outgoing nurse and the incoming nurse count the narcotics stored at the clinic together, after which the outgoing nurse gives the keys to the clinic to the incoming nurse. The count and the handover of keys signal the transfer of responsibility for the main clinic from one nurse to the other.

Responsibility for the main clinic also includes the obligation to respond to medical emergencies, called “code blues.” A code blue typically requires personnel on duty to respond from their station to the place where the inmate was located within a certain time. Code blues sometimes require personnel to respond to locations physically distant from their stations, bringing with them emergency medical equipment, such as a stretcher. During a code blue, one staff member typically remains behind in the clinic to call a doctor and prison security, as well as pull the patient's charts.

During Kelley's employment, most of her regular shifts were in the close unit, but she worked at times in other locations, including the infirmary. She did not express a preference for working in one unit over another. Toward the end of her employment, her assignments sometimes changed on short notice. Kelley knew how to conduct the narcotics count as part of her responsibilities.

B. Kelley's Disability and Her Interactions with Kesteloot

In July 2007, Kelley shattered the right side of her pelvis during a horseback riding accident. As a result, she required surgery and took a leave of absence that lasted approximately six weeks.

Theresa Kesteloot, Kelley's supervisor, had been a CMS employee since July 2006, and was transferred to Maine State Prison sometime during Kelley's leave of absence. Before Kelley returned to work, a representative of CMS's Human Resources Department sent her an email stating that if she could not return to work after her leave of absence, she would be reduced to PRN status.² The email referred to Kesteloot having “an issue about her and PRN status,” and suggested that Kelley contact the Human Resources representative to discuss the matter further. Kelley also avers that during her leave of absence, Kesteloot told her on the phone that she would be fired if she did not work full time after her leave and that she did not want Kelley to return to work on an as needed basis.

On September 17, 2007, Kelley returned to work with a medical note outlining her restrictions. The note stated that she should use crutches for ambulation, she could not use her hands for lifting, and her ability to bend and squat was limited. The note also indicated that she could lift, push, and pull objects as long as she stayed seated.³

The first night Kelley returned to work, Kesteloot told her that her doctor's note regarding her medical restrictions had not been provided on the appropriate CMS form, and that Kelley could not commence working until she provided a doctor's note on the correct form. The director of nursing overruled Kesteloot and permitted Kelley to work her shift. As Kesteloot was providing Kelley with the proper form, however, she asked Kelley, “seriously, what are your expectations?” Kelley responded that she intended to return to work with the use of a cane.

During the first three months after Kelley returned to work, she worked primarily in the infirmary and the main clinic. Kelley “sometimes” responded to code blues if they were in other units; “once or twice” she used crutches to respond to code blues in the close or medium unit. After some time, Kelley returned to her pre-injury assignment in the close unit. She nonetheless worked in the main clinic when necessary.

Throughout 2008, Kelley's leg and health problems impeded her ability to work double shifts and she began using a cane at work. Kesteloot told her not to use the cane until and unless she obtained medical authorization to do so. ⁴ In response, Kelley procured notes from physicians stating that she should be permitted to use a cane; these notes also limited her to working only 10.5 hours at a time.⁵

Kelley avers that on several occasions after her return, Kesteloot suggested that she was misrepresenting the extent of her injuries and that she would be unable to walk if she had truly fractured her pelvis.⁶ Kesteloot also consistently criticized Kelley's job performance, and put written comments that she had not seen before in her employment file. Violet Hanson, a member of CMS management, told Kelley that Kesteloot “wanted [her] gone.”

In July 2008, Kelley's medical providers recommended that she have a second hip surgery, which would likely require another lengthy leave of absence. Kelley testified that she “believe[s] she had a discussion” with Kesteloot concerning her second surgery.

C. The October 17, 2008 Night Shift

On the night shift of October 17, 2008, which runs from 10 PM to 7:30 AM, matters came to a head between Kelley and Kesteloot. Although Kelley was on vacation on that date, she received a call asking her to take a shift in the close unit in place of another nurse who had been originally scheduled to staff the unit. She arrived for work at around 10 PM. By the time she arrived, however, a second employee also needed a substitute, requiring a staffing reshuffle. Since a nurse was not required to staff the close unit until it was time to set up the medications at around 3:30 or 4 AM, Kelley's assignment was changed to the main clinic without her knowledge.

Bruce Lumsden was the registered nurse on duty in the main clinic when Kelley arrived. Kelley noted the alteration in her assignment, and discussed the matter with Lumsden. Kelley told him of her mobility restrictions and stated that her leg was bothering her that day. She expressed concern about her ability to respond to a code blue, in part because she would have difficulty lifting the stretcher. She asked to switch responsibilities with Ann Voorhees, a nurse who was scheduled to work in the infirmary, since the infirmary was generally a lighter assignment than working in the clinic. Lumsden responded that Kelley should ask Voorhees to switch positions.

Kelley then approached Voorhees and requested the switch, but Voorhees initially refused. Lumsden then left Kelley in the main clinic alone and went to speak to Voorhees. Upon his return, he informed Kelley that he and Voorhees had spoken with Kesteloot via telephone, and that Voorhees had agreed to come out of the infirmary since that location did not require constant supervision. Pursuant to Kesteloot's instructions, Kelley and Voorhees were to staff the main clinic together, and the latter would do any “running around” that was needed. After this conversation, Lumsden did the narcotics count for the main clinic with another nurse, Deborah Hill, and left.

Contrary to the agreed-upon arrangement, Voorhees refused to leave the infirmary, stating that she had barely slept the night before and did not want to take on the additional clinic responsibilities. Kelley told Hill that she could not staff the clinic alone due to her leg problems and her lack of familiarity with the position. She further noted that responsibility for the main clinic would obligate her to respond to code blues and that staffing the clinic would be too stressful for her.⁷ Kelley stated that she wanted to go home rather than assume responsibility for the main clinic. Hill, who had already worked two shifts prior to the night shift, wanted to leave work, but could not do so until she did the narcotics count with another nurse, thereby transferring responsibility for the main clinic.

Kelley then called Kesteloot at home and...