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Archambault v. Kindred Rehab Services, Inc.

United States District Court, D. Massachusetts

August 31, 2016

GAYLE M. ARCHAMBAULT, Plaintiff,
v.
KINDRED REHAB SERVICES, INC. D/B/A REHABCARE; KINDRED HEALTHCARE INC.; JENNIFER MORRISON; PATRICIA CINCOTTA; STEPHEN HAGGERTY; and STEPHEN ESDALE, Defendants.

          MEMORANDUM AND ORDER

          ALLISON BURROUGHS, U.S. DISTRICT COURT JUDGE

         Plaintiff Gayle M. Archambault brings this action against her former employer, Kindred Rehab Services, Inc. (“Kindred”) and four individuals who served in supervisory roles during her employment at Kindred. Archambault alleges that the defendants terminated her employment in retaliation for her use of medical leave protected under the Family Medical Leave Act, 29 U.S.C. § 2601, et seq. (“FMLA”) (Count I). She further asserts that her termination constituted discrimination in violation of both the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”) (Count II), and the Massachusetts Fair Employment Act, Mass. Gen. L. Ch. 151B (“Chapter 151B”) (Count III). Finally, Archambault brings a count against the individual defendants for intentional infliction of emotional distress (Count V).[1] Presently before the Court is the defendants' motion for summary judgment. [ECF No. 34]. For the reasons set forth herein, the Motion is GRANTED in its entirety and the Complaint is dismissed.

         I. BACKGROUND

         a. Procedural History

         Archambault filed her complaint in this action on April 4, 2014. [ECF No. 1 (“Compl.”)]. Defendants jointly answered on August 14, 2014 [ECF No. 12], and the parties conducted discovery through August 21, 2015. [ECF No. 25]. The defendants then filed a motion for summary judgment, as well as a memorandum of law in support and a statement of undisputed facts, on December 14, 2015. [ECF Nos. 34-36]. Archambault filed her memorandum in opposition on February 11, 2016, as well as objections to defendants' statement of undisputed facts and a statement of disputed facts. [ECF Nos. 47, 48]. The defendants replied on March 10, 2016 [ECF No. 53], and the Court heard oral argument on the motion for summary judgment on March 31, 2016.

         On April 5, 2016, Archambault filed a motion for leave to submit additional evidence in opposition to the pending summary judgment motion. [ECF No. 55]. She requested leave to submit the testimony of Suzanne Houlihan, Archambault's supervisor from January 2008 to December 2010, via affidavit or deposition. On June 8, 2016, the Court granted that motion [ECF No. 60], and the parties have since deposed Houlihan and filed supplemental briefs regarding her testimony. [ECF Nos. 65, 66].

         b. Factual Background

         Here, the Court reviews the facts in the light most favorable to the plaintiff, who opposes summary judgment. Crete v. City of Lowell, 418 F.3d 54, 56 (1st Cir. 2005).

         Defendant Kindred is a corporation that provides rehabilitation services to nursing homes. Compl. ¶ 2. Archambault is a speech pathologist who worked for Kindred from November 13, 2006 to January 23, 2013. Id. ¶¶ 1, 9. Archambault provided speech pathology services to elderly residents at the Newton Wellesley Center for Alzheimer's Care (“NWCAC”), one of Kindred's nursing home clients. Id. ¶¶ 2-4, 9. Kindred or its corporate affiliates also employed the individual co-defendants in this action. Id. ¶¶ 5-8. Defendant Jennifer Morrison was an Area Rehab Director for Kindred, and was responsible for supervising Kindred's Rehab Managers, including the plaintiff's last two immediate supervisors, Defendants Patricia Cincotta and Stephen Haggerty. [ECF No. 36 (“Def. Facts”) ¶ 3]. Cincotta worked primarily at another facility but occasionally filled in at NWCAC, where she acted as Archambault's interim supervisor until the spring of 2011. Id. ¶¶ 4, 13. Haggerty served as Archambault's immediate supervisor at NWCAC from March 2011 until Archambault's termination in January 2013. Id., ¶¶ 5, 13. Finally, Defendant Stephen Esdale was the Executive Director of the NWCAC facility, as of May 6, 2011. Id. ¶ 6.

         Starting in 2008, Archambault reported that she was experiencing negative allergic reactions to the cleaning fluids being used at the NWCAC facility. [ECF No. 48 (“Plaintiff's Facts”) ¶ 3; Def. Facts ¶ 8]. In December 2009, as a result of these ongoing allergic reactions, she filed a request to take intermittent medical leave under the FMLA. Plaintiff Facts ¶ 8; Def. Facts ¶ 9. Kindred approved her request. [ECF No. 48-14 at 29; Def. Facts ¶ 9]. Thereafter, Archambault applied on an annual basis to renew her FMLA eligibility rights, and each time, Kindred approved her renewal requests. Def. Facts ¶ 9. Archambault took intermittent FMLA leave over the course of her employment at Kindred. Id. ¶ 15.

         Archambault alleges that starting in 2009, she was “subjected to extreme scrutiny, unjust disciplinary actions, harassment, retaliation and discrimination largely orchestrated by Defendant, Jennifer Morrison who had complained to Plaintiff that her taking of intermittent Family Medical Leave was inconvenient for the facility.” Compl. ¶ 15. Her Complaint details a series of incidents, culminating in her suspension and termination, which Archambault claims were retaliation for taking FMLA leave and/or discrimination based on her disability. Id. ¶¶ 15-25.

         Kindred suspended Archambault on November 8, 2012, based upon concerns that she was engaging in improper billing practices and that she was providing treatment for patients who did not have an ongoing need for the treatment. Def. Facts ¶¶ 25-26; Plaintiff Facts ¶ 22. At the time Archambault was suspended, Morrison reported concerns about Archambault's conduct to Kindred's compliance hotline. Def. Facts ¶ 26. On January 23, 2013, with the investigation ongoing, Kindred informed Archambault by letter that her employment had been terminated due to “an egregious violation of [Kindred's] Documentation Protocol” that had been uncovered over the course of the investigation. [ECF No. 48-14 at 47-48 (Ex. 22)]. The investigation revealed that Archambault had billed for over 40 sessions with 13 patients without completing the appropriate progress notes. The letter, signed by Morrison, stated in relevant part:

While our investigation is ongoing in certain areas, we have made the decision to terminate your employment with [Kindred] effective immediately based on our findings to date. Of particular concern is the number [of] therapy records that you failed to document to support the services you reportedly provided. The investigation revealed several instances where you billed time for therapy sessions for which there was no corresponding clinical note to support the time entry. In the five weeks leading up to your suspension alone, you billed for over 40 therapy sessions with 13 patients for which you failed to complete appropriate progress notes. The magnitude of your failure to properly and timely complete clinical documentation is an egregious violation of [Kindred] Documentation Protocol. Moreover, a review of the clinical records for your patients revealed that the duration of services rendered in many cases was not adequately supported or documented. Specifically, in many instances there was no noted progress throughout your treatment and/or no specific treatment techniques or strategies suggested by you for improvement. All of this has led to the conclusion that you did not exercise proper discretion and judgment in carrying out your responsibilities.

Id.

         Plaintiff claims that she had an exemplary record of completing clinical notes in a timely manner, that she had completed the missing documentation prior to being suspended, and that Kindred suspended and ...


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