Halkett v. Corr. Med. Serv. Inc.

763 F.Supp.2d 205

Thomas HALKETT, Plaintiff,

v.CORRECTIONAL MEDICAL SERVICES, INC., Defendant.

No. 1:09–cv–00637–JAW.

United States District Court, D. Maine.

Feb. 4, 2011.

Arthur J. Greif, Julie D. Farr, Gilbert & Greif, P.A., Bangor, ME, for Plaintiff.Matthew J. Lamourie, Michael Messerschmidt, Preti, Flaherty, Beliveau, Pachios & Haley, LLP, Portland, ME, for Defendant.

ORDER ON MOTION FOR SUMMARY JUDGMENT

JOHN A. WOODCOCK, JR., Chief Judge.

Concluding that an employee has raised sufficient evidence to withstand a motion for summary judgment under the Maine Whistleblowers Protection Act (MWPA), the Court denies the employer's motion for summary judgment.

I. STATEMENT OF FACTSA. Procedural History

On November 30, 2009, Thomas Halkett filed suit in Penobscot County Superior Court against his former employer, Correctional Medical Services, Inc. (CMS), alleging that CMS violated the Maine Whistleblower Protection Act (MWPA), 26 M.R.S. § 831 et seq. , and the Maine Human Rights Act (MHRA), 5 M.R.S. 4551 et seq., by terminating his employment after he complained to CMS about its practices, which he reasonably believed were illegal. Notice of Removal (Docket # 1) Attach. 1 ( Compl ). On December 22, 2009, CMS removed the action to this Court based on its diversity jurisdiction. Notice of Removal. On June 22, 2010, CMS moved for summary judgment. Def.'s Mot. for Summ. J. (Docket # 16) ( Def.'s Mot.). On August 16, 2010, Mr. Halkett responded. Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. (Docket # 23) ( Pl.'s Opp'n ). On August 30, 2010, CMS replied. Def.'s Br. in Reply to Pl.'s Objection to Def.'s Mot for Summ. J. (Docket # 27) ( Def.'s Reply ).

B. Preliminary Objections

1. CMS's Objection to Plaintiff's Statement of Material Fact Paragraph 155

In its Reply to Mr. Halkett's Statement of Additional Material Facts, CMS objects to paragraph 155 on the ground that it violates Local Rule 56(c) by positing “two distinct statements of fact each with a distinct record citation.” Def.'s Am. and Corrected Reply to Pl.'s Statement of Additional Material Facts ¶ 155 n. 1 (Docket # 29) (DRPSAMF). See D. Me. Loc. R.. 56(c). Local Rule 56(c) requires that a party opposing a motion for summary judgment submit with its opposition “a separate, short, and concise statement of material facts.” D. Me. Loc. R.. 56(c). It allows the opposing party to submit additional facts, “each set forth in a separately numbered paragraph and supported by a record citation.” Id. At the same time, the Court does not require that each paragraph contain only a single assertion. Randall v. Potter, 366 F.Supp.2d 120, 122 (D.Me.2005) (“[T]he requirement of ‘separately numbered paragraphs' does not mean each paragraph must contain only one sentence.”); Capozza Tile Co. v. Joy, 223 F.Supp.2d 307, 313 n. 2 (D.Me.2002) (denying a motion to strike a statement of material facts “replete with multiple allegations set forth in the same numbered paragraph” because a response “would not be unduly burdensome”). The Court has reviewed Plaintiff's paragraph 155 and has concluded that it does not violate Local Rule 56(c). The Court overrules CMS's objection to Plaintiff's Statement of Additional Material Fact paragraph 155.

2. CMS Objections to Background Facts

In his Statement of Additional Material Facts, Mr. Halkett provided some of his educational and professional background. Pl.'s Statement of Additional Material Facts ¶¶ 150–51 (Docket # 22) (PSAMF). CMS objects on the basis that his background and experience is not material to the motion. DRPSAMF ¶¶ 150–51. The Court overrules CMS's objection.

C. Thomas Halkett and CMS

1. Thomas Halkett's Background and Employment

Thomas Halkett is a licensed clinical professional counselor with a bachelor of arts degree in philosophy and a master's degree in divinity. PSAMF 150; DRPSAMF ¶ 150. Mr. Halkett has maintained a private counseling practice since the late 1980s, has been employed as an assistant professor of philosophy at the University of Maine at Machias since 1994, and had worked as a vicar at St. Aidan's Episcopal Church in Machias, Maine. PSAMF ¶ 151; DRPSAMF ¶ 151. Mr. Halkett worked with inmates at the Washington County Jail from 1985 to the mid–1990s. PSAMF ¶ 152; DRPSAMF ¶ 152. In January 2004, Mr. Halkett gave up his position as vicar at St. Aidan's.¹ PSAMF ¶ 153; DRPSAMF ¶ 153. Mr. Halkett has some background on inmate confidentiality through his experience and his work as a professor.² PSAMF ¶ 154; DRPSAMF ¶ 154.

2. Mr. Halkett, C.M., and the Telephone

In March 2006, Mr. Halkett was allowing inmates to make telephone calls from his office to people outside the prison. DSMF ¶ 71; Pl.'s Resp. to Def.'s Statement of Undisputed Material Facts ¶ 71 (Docket # 22) (PRDSMF). Specifically, Mr. Halkett was treating an inmate, “C.M.,” for mental health issues. DSMF ¶ 72; PRDSMF ¶ 72. During this same time, Carol Geel, a licensed social worker and correctional caseworker for the Maine Department of Corrections (MDOC) at the Downeast Correctional Facility (DCF), was C.M.'s MDOC caseworker. DSMF ¶¶ 72–73; PRDSMF ¶¶ 72–73. Ms. Geel believed that C.M. had been convicted of domestic abuse and was a batterer who had remained obsessed about his girlfriend's whereabouts, and Ms. Geel had refused to authorize C.M.'s requests to telephone his girlfriend.³ DSMF ¶¶ 75–78; PRDSMF ¶¶ 75–78.

In March 2006, Mr. Halkett allowed C.M. to telephone his girlfriend from Mr. Halkett's office because C.M. was not allowed to make calls from Ms. Geel's office and because C.M. had no telephone of his own. DSMF ¶ 79; PRDSMF ¶ 79. Mr. Halkett believed that there were no MDOC regulations that prohibited these calls. DSMF ¶ 80; PRDSMF ¶ 80.

In the spring of 2006, Ms. Geel learned that Mr. Halkett had allowed C.M. to contact his girlfriend.⁴ DSMF ¶ 81; PRDSMF ¶ 81; PSAMF ¶ 155; DRPSAMF ¶ 155. Ms. Geel believed that by allowing C.M. to telephone his girlfriend, Mr. Halkett was violating MDOC policy, and she notified Ralph Pennell, the Programs Manager at DCF, that she believed that Mr. Halkett had violated MDOC Policy 21.3. DSMF ¶¶ 85, 93–94; PRDSMF ¶¶ 85, 93. Ms. Geel considered Mr. Halkett's actions to be particularly serious because he had allowed an inmate who had been convicted of domestic assault to telephone his victim.⁵ DSMF ¶ 86; PRDSMF ¶ 86.

In March 2006, Mr. Halkett thought it was entirely appropriate for C.M. to initiate telephone calls to his girlfriend. DSMF ¶ 91; PRDSMF ¶ 91. During the winter of 2006, Mr. Halkett believed that if he thought it was appropriate to do so, in certain circumstances, such as where there were family issues, where someone was incredibly distraught, or occasionally if the person needed to speak to a lawyer, inmates could place telephone calls from his office. DSMF ¶ 87; PRDSMF ¶ 87. He also believed that if a person outside prison was on an inmate's visiting list, and if that person sent mail to the prisoner, the inmate faced no restrictions against initiating telephone calls to that person so long as the inmate was “not in a domestic violence situation.” DSMF ¶ 89; PRDSMF ¶ 89. Although C.M.'s girlfriend was on an approved list of his visitors, whether she visited him was her decision, based exclusively on her initiation, and as a result of Mr. Halkett's actions, although she could have terminated the conversation by hanging up, the girlfriend did not have the same freedom of choice with respect to telephone calls initiated by C.M.⁶ DSMF ¶ 90; PRDSMF ¶ 90.

3. June 2006: MDOC Informs Mr. Halkett About Its Inmate Telephone Policy

After learning about Mr. Halkett and C.M., on June 20, 2006, Mr. Pennell prepared a memorandum and submitted it to Mr. Halkett. DSMF ¶ 93; PRDSMF ¶ 93. MDOC Policy 21.3, which had an effective date of May 14, 2002, covers the right of inmates to make telephone calls to persons outside the prison. DSMF ¶ 94, 96; PRDSMF ¶ 94, 96. Mr. Halkett says, however, that there is a separate MDOC policy that defines rules for when a mental health worker can place a phone call on behalf of an inmate.⁷ PRDSMF ¶ 94, 98. When Mr. Pennell informed Mr. Halkett in June 2006 that he was restricted from placing phone calls on behalf of inmates, this policy was contrary to what Mr. Halkett believed the MDOC allowed. PRDSMF ¶ 97. Mr. Halkett believes that restrictions went into place in June or July 2006 following the episode involving C.M.⁸ DSMF ¶ 97; PRDSMF ¶ 97. As of late June 2006, Mr. Halkett understood that he was not to make any telephone calls for inmates from his office or to allow prisoners to make any telephone calls from his office. DSMF ¶ 101; PRDSMF ¶ 101. However, Mr. Halkett wrote a written response to Mr. Pennell's memorandum, citing a MDOC policy that allowed mental health workers to assist prisoners to facilitate contact with family and outside agencies when necessary.⁹ PSAMF ¶ 157; DRPSAMF ¶ 157.

Kimberly Partridge, who was Mr. Halkett's direct supervisor at CMS, did not discipline Mr. Halkett for the incident involving C.M. but she issued a memorandum. DSMF ¶ 103; PRDSMF ¶ 103; PSAMF ¶ 159; DRPSAMF ¶ 159. Although Ms. Partridge considered the memorandum a counseling step, the memorandum itself does not say it was intended as a counseling step and Ms. Partridge did not consider it to be a written warning. DSMF ¶ 103; PRDSMF ¶ 103.

4. October 26, 2007: Mr. Halkett Facilitates An Inmate Telephone Call From His Office

On October 26, 2007, Mr. Halkett allowed an inmate, “A.B.,” whom he had been treating, to leave a voicemail message with his probation officer, Christopher Arbour, from Mr. Halkett's office at DCF. DSMF ¶¶ 104, 106; PRDSMF ¶¶ 104, 106. A.B.'s voicemail to Probation Officer Arbour informed the Officer that A.B. would contact his supervisor if he did not return the call.¹⁰ DSMF ¶ 106; PRDSMF ¶ 106. On Monday, October 29, 2007, Officer Arbour listened to A.B.'s voicemail and he returned A.B.'s call and explained that he could not do any probation planning...