Sullivan v. St. Joseph's Rehab. & Residence

143 A.3d 1283

2016 ME 107

Danielle SULLIVAN

v.ST. JOSEPH'S REHABILITATION AND RESIDENCE et al.

Docket No. Cum–15–6.

Supreme Judicial Court of Maine.

Argued: Dec. 10, 2015.

Decided: July 12, 2016.

Guy D. Loranger, Esq. (orally), Law Office of Guy D. Loranger, P.A., Old Orchard Beach, on the briefs, for appellant Danielle Sullivan.

James B. Haddow, Esq., Gerald F. Petruccelli, Esq. (orally), and Kimberly A. Watson, Esq., Petruccelli, Martin & Haddow, LLP, Portland, on the briefs, for appellee St. Joseph's Rehabilitation and Residence.

Katharine I. Rand, Esq., and Nolan L. Reichl, Esq. (orally), Pierce Atwood, Portland, on the briefs, for appellee Catholic Health East, Inc.

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.

SAUFLEY, C.J.

[¶ 1] In 2012, Danielle Sullivan resigned from her job as director of nursing at St. Joseph's Rehabilitation and Residence, and in 2013, she filed a two-count complaint against St. Joseph's¹ seeking relief pursuant to the Whistleblowers' Protection Act, 26 M.R.S. §§ 831 –840 (2015). One count of the complaint asserted a specific claim for relief based on an allegation of constructive discharge. The court (Cumberland County, Cole, C.J. ) granted a summary judgment for St. Joseph's on Sullivan's constructive discharge claim, and a jury trial was then held on Sullivan's remaining WPA claim.² The jury found against Sullivan on that claim. Sullivan now appeals from the court's entry of a summary judgment in favor of St. Joseph's on the constructive discharge claim. We affirm the judgment.

I. BACKGROUND

[¶ 2] Sullivan's complaint included two counts asserted pursuant to the WPA—“retaliation” and “constructive discharge.” St. Joseph's moved for summary judgment on both counts and prevailed as to the constructive discharge claim. Because Sullivan appeals only from the court's grant of summary judgment, the following facts are drawn from the summary judgment record.³ See Budge v. Town of Millinocket, 2012 ME 122, ¶ 12, 55 A.3d 484. Recognizing that these facts may have been disputed in the context of the constructive discharge count had it gone to trial, we are nonetheless bound to consider the facts drawn from the summary judgment record in the light most favorable to Sullivan. Id.

[¶ 3] In December 2009, St. Joseph's Rehabilitation and Residence, a Maine nonprofit corporation, hired Danielle Sullivan as director of nursing. In November 2010, Sullivan and others at St. Joseph's were asked to reduce staff to cut expenses. Sullivan was concerned that the cost-cutting measures would affect the health of the residents, resulting in negative outcomes or potential negative outcomes for the residents. Sullivan complained about the cost-cutting measures to her superiors. She also emailed the chair of the Board of Directors. Afterwards, she complained to the human resources department because she felt like her job had been “almost threatened.”

[¶ 4] Beginning in September or October 2011, Sullivan raised concerns on multiple occasions about admissions. She complained about the admission of certain patients who had needs she felt St. Joseph's could not meet and about the admission process in general, including her perception that St. Joseph's was, on occasion, admitting patients without the requisite paperwork and/or background information.

[¶ 5] In February 2012, a new clinical consultant was assigned to conduct an audit and prepare a marketing plan for St. Joseph's. In February or March 2012, a new admissions director was appointed. Sullivan believed that admissions problems continued after the new director was hired. The director sometimes sent Sullivan emails telling her how to do her job. Sullivan complained about the emails. Sullivan also complained that the director engaged in bullying behavior.

[¶ 6] In April 2012, the clinical consultant began to work on site at St. Joseph's. Also in April, a new administrator joined St. Joseph's. The new administrator and the clinical consultant worked together on a “master plan,” which was completed in early May. The purpose of the master plan was to increase revenue through increasing the number of residents. Sullivan felt that she was being alienated, as her concerns were not being addressed. The clinical consultant and the admissions director were excessively critical of Sullivan's skills and job performance, and communicated criticisms in a harsh and rude manner. Sullivan complained to the administrator about the clinical consultant's behavior.

[¶ 7] The administrator, the clinical consultant, and the admissions director excluded Sullivan from two or three meetings and from decision-making processes. In May, Sullivan's admissions responsibilities were moved to the administrator. The clinical consultant and the administrator arranged a meeting with Sullivan and accused Sullivan of being “not on board with the changes” at St. Joseph's. Sullivan felt uncomfortable working at St. Joseph's in May 2012.

[¶ 8] On Friday, May 18, 2012, Sullivan told the administrator that she wanted to resign. Her desire to resign was motivated in part by the admissions process, her exclusion from meetings, and unwarranted criticism from the others. The administrator encouraged Sullivan not to resign.

[¶ 9] On May 21, the clinical consultant's superior met with Sullivan and presented her with a thirty-day performance plan. The plan, which addressed eight areas in which he and the clinical consultant believed Sullivan needed to improve her job performance, was issued to Sullivan in writing on May 22. The performance plan informed Sullivan that she could be terminated if progress in those areas was not achieved within thirty days. Sullivan believed that the performance plan was a form of retaliation for expressing her formal complaints and concerns because she felt nothing in the plan was warranted or accurate. Sullivan had issued similar notices to employees that she supervised, however, and she did not consider those notices to be a form of retaliation.

[¶ 10] Sullivan complained to the administrator about the plan. Sullivan felt that she was going to be terminated and felt compelled to resign. Sullivan tendered her resignation on May 23, 2012, one day into the thirty-day performance plan, to be effective in thirty days. A few days later, the clinical consultant told Sullivan that she was no longer authorized to make certain management-level decisions about nursing staff and told the administrator that he should escort Sullivan from the building.

[¶ 11] At no time during her employment at St. Joseph's was Sullivan's pay reduced, nor was she ever demoted, transferred, or discharged from her employment. She received regular pay increases and worked full time until she resigned.

[¶ 12] On the basis of those allegations, the court denied the motion for summary judgment on the retaliation claim and granted a summary judgment on the separate count alleging constructive discharge.

II. WHISTLEBLOWERS' PROTECTION ACT AND CONSTRUCTIVE DISCHARGE⁴

[¶ 13] The Whistleblowers' Protection Act prohibits employers from retaliating against employees who report or refuse to commit certain acts, including acts that employees believe to be illegal or unsafe. 26 M.R.S. § 833(1). Specifically, the WPA states that employers may not “discharge, threaten or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location or privileges of employment” because of an employee's engagement in the specified acts. Id.

[¶ 14] To establish a prima facie case of a violation of the WPA, an employee must provide evidence of the three components of the claim. She must show that (1) she “engaged in activity protected by the statute,” (2) she “was the subject of adverse employment action,” and (3) “there was a causal link between the protected activity and the adverse employment action.” Bard v. Bath Iron Works Corp., 590 A.2d 152, 154 (1991). An adverse employment action is an action that materially changes the conditions of an employee's employment. Higgins v. TJX Cos., Inc., 331 F.Supp.2d 3, 6–7 (D.Me.2004).

[¶ 15] Because a discharge or termination from employment materially changes the conditions of employment, a plaintiff may satisfy the element of “adverse employment action” by proving that she was discharged from her employment. See 26 M.R.S. § 833(1). Pertinent here, that element may be proved when the employee is not actually discharged but is “constructively” discharged. Levesque v. Androscoggin Cty., 2012 ME 114, ¶ 8, 56 A.3d 1227. Constructive discharge may be found when, due to the actions of the employer, an employee's “working conditions were so difficult or unpleasant that a reasonable person in [the employee's] shoes would have felt compelled to resign.” Lee–Crespo v. Schering–Plough Del Caribe, Inc., 354 F.3d 34, 45 (1st Cir.2003) (quotation marks omitted).

[¶ 16] Constructive discharge is not, however, a freestanding claim under the Whistleblower's Protection Act. Levesque, 2012 ME 114, ¶ 6, 56 A.3d 1227. To effectively claim a violation of the WPA based on a constructive discharge, an employee must establish all three elements of a WPA claim: protected activity, adverse employment action—in the form of “constructive” rather than actual discharge, which requires proof of two elements—and a causal connection between the two. See Bard, 590 A.2d at 154 ; Levesque, 2012 ME 114, ¶ 8, 56 A.3d 1227.

[¶ 17] Specifically, when an employee who has resigned claims that an adverse employment action occurred in the form of a constructive discharge, the employee has the additional burden of proving the constructive discharge. See Landrau–Romero v. Banco Popular De Puerto Rico, 212 F.3d 607, 613 (1st Cir.2000) (“Alleging constructive discharge presents a ‘special wrinkle’ that amounts to an additional prima facie element.”); Bodman v. Me. Dep't of Health & Human Servs., 720 F.Supp.2d 115, 123 (D.Me.2010) (characterizing constructive discharge as a “compoun...