Schott v. Kindred Healthcare Operating, Inc.
| Decision Date | 27 July 2018 |
| Docket Number | No. 2:16-cv-00515-JAW,2:16-cv-00515-JAW |
| Parties | POTITSA SCHOTT, Plaintiff, v. KINDRED HEALTHCARE OPERATING, INC., et al., Defendants. |
| Court | U.S. District Court — District of Maine |
Concluding that there are genuine issues of material fact that require resolution by a factfinder, the Court denies a motion for summary judgment by a nursing center that terminated its executive director for accepting and transcribing a doctor's order to discontinue a medication for a resident and thereby violating Maine regulations, which limit those individuals who may accept a telephonic physician order to start or discontinue prescribed medicine to registered nurses and pharmacists. The plaintiff denies accepting and transcribing the physician's order, which creates a genuine issue of material fact.
The plaintiff also claims that one of the nursing center's managerial employees defamed her by falsely informing third parties that the nursing center had no choice but to terminate her because she had acted in a clinical manner without being licensed to do so. The Court also denies the defendants' motion for summary judgment on the plaintiff's defamation count, because the defamation count is premised on the truth of the manager's comment, a fact the plaintiff denies.
On October 5, 2016, Potitsa Schott filed a complaint in this Court against Kindred Healthcare Operating, Inc., Kindred Nursing Centers West, LLC, and Maine Assisted Living, LLC, d/b/a Monarch Center,1 alleging that the Kindred Defendants violated the Maine Human Rights Act, 5 M.R.S. §§ 4551 et seq. (MHRA) and the Maine Whistleblowers' Protection Act, 26 M.R.S. §§ 831 et seq. (MWPA) and defamed her under common law. Compl. (ECF No. 1). The Kindred Defendants filed an answer on December 5, 2016, denying the essential allegations of the Complaint. Answer to Compl. (ECF No. 4).
On September 28, 2017, after the completion of discovery, the Kindred Defendants filed a motion for summary judgment, a stipulation of facts, and a statement of uncontested material facts. Defs.' Mot. for Summ. J. (ECF No. 38) (Defs.' Mot.); Stip. Statement of Material Facts (ECF No. 39) (Stip.); Defs.' Statement of Material Facts (ECF No. 40) (DSMF). On October 23, 2017, Ms. Schott filed a response, opposing the motion, together with an opposing statement of material facts and a statement of material facts. Pl.'s Opposition to Defs.' Mot. for Summ. J. (ECF No. 45) (Pl.'s Opp'n); Pl.'s Opposing Statement of Material Fact and Statement of Additional Material Facts (ECF No. 46) (PRDSMF; PSAMF). On October 30, 2017, the Kindred Defendants filed their reply and a response to the Plaintiff's statement of facts. Defs.' Reply in Support of Mot. for Summ. J. (ECF No. 50) (Defs.' Reply); Defs.' Reply to Pl.'s Statement of Additional Material Facts (ECF No. 51) (DRPSAMF).
On November 2, 2017, Ms. Schott filed a sur-reply in opposition to the Kindred Defendants' motion for summary judgment.2 Pl.'s Sur-Reply in Opp'n to Defs.' Mot. for Summ. J. (ECF No. 56) (Pl.'s Sur-Reply). The Kindred Defendants filed a response to the Plaintiff's sur-reply on November 13, 2017.
On October 31, 2017, the Kindred Defendants moved for oral argument on the motion for summary judgment. Req. for Oral Argument on Defs.' Mot. for Summ. J. (ECF No. 52). On November 20, 2017, the Court granted the request, Order Granting Req. for Oral Argument/Hr'g, and held oral argument on July 17, 2018.
At oral argument, the Court invited the parties to file memoranda by July 20, 2018, regarding the Kindred Defendants' assertion that Ms. Schott is bound by the contents of her first sworn declaration to the Maine Human Rights Commission and may not rely on subsequent sworn declarations that differently describe the same events. Ms. Schott and the Kindred Defendants filed supplemental memoranda on July 20, 2018. Pl.'s Suppl. Br. in Opp'n to Defs.' Mot. for Summ. J. (ECF No. 61) ; Defs.' Suppl. Mem. on Whether Pl. May Contradict Her Own Prior Sworn Statement to Create a Genuine Issue of Material Fact (ECF No. 62) .
Potitsa Schott is a resident of Biddeford, York County, state of Maine. Compl. ¶ 1; Answer ¶ 1. Kindred Healthcare Operating, Inc. is a Delaware corporation headquartered in Louisville, Kentucky and the parent organization for Kindred Nursing Centers West, LLC. Compl. ¶ 2; Answer ¶ 2. Defendant Nursing Centers West, LLC is a Delaware limited liability company headquartered in Louisville, Kentucky and wholly owns Maine Assisted Living, LLC, which owns and operates the Monarch Center. Compl. ¶ 3; Answer ¶ 3. Maine Assisted Living, LLC is a Maine limited liability company with a principal place of business in Saco, York County, Maine. Compl. ¶ 4; Answer ¶ 4. Monarch Center is now called Kindred Living at Monarch. Stip. ¶ 1.
Potitsa Schott worked at the Monarch Center, the Kindred Defendants' assisted living facility in Saco, Maine for approximately two and a half years, first as the Admissions Coordinator and then, beginning in October 2013, as the Executive Director. Stip. ¶ 1. Ms. Schott's primary job duties as Executive Director were tooperate the facility efficiently and profitably, and comply with Kindred and state policies. PSAMF ¶ 1; DRPSAMF ¶ 1. As Executive Director of the Monarch Center, Ms. Schott was responsible for the overall operation of the Monarch Center.5 DSMF ¶ 1; PRDSMF ¶ 1. Ms. Schott supervised all employees in the Monarch Center and reported issues at the facility, including clinical, human resources, and performance issues, to one or more regional Kindred employees, Vice President of Assisted Living Brian Newman, District Director of Clinical Operations Mary Yesue, and/or District Director of Human Resources Gregg Hanscom.6 DSMF ¶ 2; PRDSMF ¶ 2. Ms.Schott's direct supervisor was Regional Vice President of Assisted Living Brian Newman. PSAMF ¶ 3; DRPSAMF ¶ 3. Ms. Schott is not a licensed or registered nurse. Stip. ¶ 3.
During the time, Ms. Schott worked as Executive Director, Laura Tardif (now Walton) was the Director of Nursing Services (DNS) at the Monarch Center and reported to Ms. Schott. Stip. ¶ 2. Ms. Tardif was responsible for clinical oversight of the facility. PSAMF ¶ 4; DRPSAMF ¶ 4. Although Ms. Tardif denied that the Director of Nursing job description accurately summarized her duties at the Monarch Center, she was unable to articulate how the job description did not apply to her.7 PSAMF ¶ 5; DRPSAMF ¶ 5. Among other duties, the Director of Nursing is responsible for:
[O]versight of the daily clinical and administrative operations of the nursing department to assure that each resident receives the necessary care and services to attain or maintain the highest practicable physical, mental and psychosocial well being. . . . [A]dvocate for the residents and staff under his/her direction; Remains knowledgeable about the residents and their conditions through mechanisms such as making daily rounds and discussion with charge nurse and promotes person-centered care; Promotes and evaluates residents and family satisfaction with nursing services; Advocates for and assists with smooth transitions of care from one setting to another through effective communication and discharge planning activities; Promotes an environment where residents' rights are protected and residents are free from abuse and neglect; and Communicates effectively, actively listens and functions effectively as part of the team.
PSAMF ¶ 6; DRPSAMF ¶ 6. Among relevant qualifications for the Director of Nursing position are: certification as a director of nursing or nursing executive/administrator in long term care preferred and a valid RN license in the state employed.8 PSAMF ¶ 7; DRPSAMF ¶ 7. Ms. Tardif did not hold a certification as a director of nursing executive/administrator and did not have a RN license. PSAMF ¶ 7; DRSAMF ¶ 7.
In September 2014, Ms. Schott drafted a Performance Improvement Plan (PIP) outlining a number of her concerns about Ms. Tardif's performance and attitude. PSAMF ¶ 8; DRPSAMF ¶ 8. Ms. Schott's ability to supervise or discipline Ms. Tardif was severely limited, and Mr. Newman prohibited Ms. Schott from issuing Ms. Tardif a PIP in 2014.9 PRDSMF ¶ 2; PSAMF ¶ 9; DRPSAMF ¶ 9. Also, Ms. Yesue interfered with Ms. Schott's ability to manage the facility, especially with regard to Ms. Tardif. Id. Several employees told Ms. Schott that Ms. Tardif approached them to join with her to complain about Ms. Schott because Ms. Tardif opposed Ms. Schott's appointment as the Executive Director.10 PSAMF ¶ 10; DRPSAMF ¶ 10. In 2014and early 2015, Ms. Tardif told several Monarch Center employees that Ms. Schott would soon be fired.11 PSAMF ¶ 11; DRPSAMF ¶ 11.
On March 4, 2015, Brian Newman and Gregg Hanscom issued Ms. Schott a "final written warning PIP [performance improvement plan]." PSAMF ¶ 12; DRSAMF ¶ 12. Ms. Schott did not sign the PIP because she opposed any such warning absent a first, second, and/or third warning as required under Kindred personnel policies and because the PIP contained several false and misleading allegations.12 PSAMF ¶ 13; DRPSAMF ¶ 13. At his deposition, Mr. Newman was unable to explain how any of the issues that he labeled "dishonest" in the March 3, 2015 PIP actually constituted "dishonesty."13 PSAMF ¶ 14; DRPSAMF ¶ 14. Mr. Newman was unable to explain what gave rise to, or triggered, the issuing the March 4, 2015 PIP to Ms. Schott.14 PSAMF ¶ 15; DRPSAMF ¶ 15.
During the meeting with Mr. Newman and Mr. Hanscom, and separately with Ms. Yesue, Ms. Schott reported two specific concerns about Ms. Tardif's professional incompetence and actions that jeopardized the health and safety of Monarch Center residents.15 PSAMF ¶ 16; ...
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