United States District Court, D. Massachusetts
GAYLE M. ARCHAMBAULT, Plaintiff,
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
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). 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
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.
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.
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).
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.
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.
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.
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.
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 ...