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Sawyer v. Kindred Healthcare, Inc.

United States District Court, D. Massachusetts

May 16, 2016

JENNIFER SAWYER, Plaintiff,
v.
KINDRED HEALTHCARE, INC., Defendant.

MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION IN LIMINE AND CROSS-MOTIONS FOR SUMMARY JUDGMENT

F. Dennis Saylor IV United States District Judge

This is an action alleging retaliation and wrongful termination of employment. Jurisdiction is based on diversity of citizenship. Plaintiff Jennifer Sawyer was employed by defendant Kindred Healthcare, Inc. as the Director of Nursing Services at Seacoast Nursing and Rehabilitation Center in Gloucester, Massachusetts. Sawyer alleges that she was unlawfully terminated from her position in retaliation for reporting patient abuse.

Defendant has moved for summary judgment on all counts. Plaintiff has cross-moved for partial summary judgment as to liability and causation, and has also moved to preclude Kindred from relying on statements that she characterizes as inadmissible hearsay. For the reasons described below, plaintiff’s motion in limine and motion for partial summary judgment will be denied, and defendant’s motion for summary judgment will be granted.

I. Factual Background

The following facts are undisputed unless otherwise noted.

Seacoast Nursing and Rehabilitation Center is a skilled nursing facility that provides short-term rehabilitation services and long-term care. (Doyle Dep. 24). At all relevant times, Seacoast was owned by Northeast Health System, Inc. (“NHS”); defendant Kindred Healthcare, Inc. managed Seacoast pursuant to a management contract between NHS and Kindred. (Id. at 56). From January 24, 2006, to May 21, 2012, plaintiff Jennifer Sawyer was employed by Kindred as the Director of Nursing Services (“DON”) at Seacoast. (PSMF ¶¶ 3, 12).[1]

As the DON, Sawyer was responsible for Seacoast’s clinical operations, including, among other things, managing the nursing staff at the facility. (Doyle Dep. 28). In her role as DON, Sawyer was supervised by the Executive Director of Seacoast, Stephen Doyle, who is also a Kindred employee. (Sawyer Dep. I-22).[2] Doyle’s responsibilities as Executive Director extended to overseeing all day-to-day operations at Seacoast. (Doyle Dep. 13-14). Other than Sawyer and Doyle, who were technically employees of Kindred Healthcare, all other personnel at Seacoast were employed by NHS. (Sawyer Dep. I-60).

In the six years prior to her termination, Sawyer received consistent praise from Kindred executives for her positive performance, including from several different executive directors. In a December 18, 2007 performance review, then-Executive Director Stanley Trocki wrote, “We made a great choice in picking [DON Jennifer Sawyer] . . . . She is on top of her department. She is well liked and respected.” (Pl. Ex. A). In a 2008 review, Trocki wrote that Sawyer was “a great partner and an asset to Kindred.” (Pl. Ex. E). In a January 6, 2010 evaluation, a second Executive Director, Richard Poumliau, wrote that “Jen is a tremendous asset to Seacoast and we are pleased to have her in our employ. (Pl. Ex. B). Kindred also awarded Sawyer a bonus in 2010 in recognition of Seacoast’s achieving two consecutive “zero deficiency” Licensure and Certification surveys. (Pl. Ex. D). Sawyer never received any written warnings concerning her job performance prior to the incidents underlying her termination in May 2012.

During Sawyer’s employment with Kindred at Seacoast, she reported more than 20 incidents of suspected patient abuse to the Massachusetts Department of Public Health. (Sawyer Dep. I-65).

On March 17, 2012, a Seacoast nurse called Sawyer to report that a certified nursing assistant and Seacoast employee named Alexis Hartwell had physically assaulted an elderly resident. (Id. at I-96-99). Sawyer initiated an internal investigation into the incident when she arrived at work on Monday, March 19, 2012. (Id. at I-100).[3] Sawyer submitted a written preliminary report to the Massachusetts Department of Public Health on March 20, 2012, followed by a final report on March 22, 2012; the report concluded that Hartwell had punched a resident in the chest during a transfer. (Pl. Exs. F, G; Sawyer Dep. I-110). Together, Sawyer and Doyle made the decision to terminate Hartwell’s employment with Seacoast. (Id.).

Following receipt of Sawyer’s reports, the Department of Public Health conducted its own investigation into the incident in mid-April and issued a final report on May 15, 2012. (Pl. Ex. H). Ultimately, the DPH found deficiencies at Seacoast that amount to “substandard quality of care, ” and recommended that Seacoast’s participation in Medicare and Medicaid be terminated unless “significant corrections” were made. (Id. at 3). Specifically, the DPH investigation found that despite earlier warnings about Hartwell’s behavior, Sawyer had failed to develop a plan to monitor and address Hartwell’s performance. (Def. Ex. K, “Statement of Deficiencies” at 20-21). DPH also found that Sawyer had failed to timely investigate three other allegations of misconduct by Hartwell that came to light during Sawyer’s original investigation in March 2012. (Statement of Deficiencies at 12-13).

On May 17, 2012, following the DPH report, Executive Director Doyle issued a written warning to Sawyer. (Def. Ex. L; Doyle Dep. 63-64). As the Executive Director, Doyle had the authority to choose from a range of disciplinary actions with regard to Sawyer. (Id. at 80). Doyle testified that, as of the time he issued the warning, he had not decided to terminate Sawyer from her position and felt that a written warning was sufficient in light of her previous work history. (Id. at 64, 81). Doyle also notified Sawyer that the two would attend a meeting on Monday, May 21, 2012, with NHS officials to review the DPH findings. (Sawyer Dep. II-54). However, Doyle contacted Sawyer the day before the meeting to inform her that she would not be allowed to attend. (Id. at II-57).

The meeting was held as scheduled on May 21. Doyle was present, along with three other Kindred officials. Northeast Health System was represented by its CEO, Ken Hanover, and two other officials. (Doyle Dep. 56-59). The meeting was run by Hanover.

One item on NHS’s agenda for the meeting stated that Sawyer would be terminated as Seacoast’s Director of Nursing Services. (Id. at 81-82). Doyle testified that, among other things, Hanover questioned Doyle regarding his decisions to take certain employment actions in response to the DPH findings, expressed his desire for a “culture change” at the facility, and then stated that he (Hanover) wanted Sawyer and four other employees terminated. (Id. at 61, 83).[4]According to Doyle, Hanover said that he “want[ed] to send a clear message that abuse will not be tolerated, ” and that NHS wanted a zero-tolerance abuse policy. (Id. at 83).[5]

After the meeting, Doyle called Sawyer to inform her that he had been given a directive that she “[could not] come back ...


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