United States District Court, District of New Hampshire
John G. Vanacore, Esq. Debra Weiss Ford, Esq.
Joseph N. Laplante United States District Judge
The central question in the case, like in many employment cases, turns on why the defendant fired the plaintiff--a question of state of mind that, while it does not necessarily preclude the remedy of summary judgment, see Fed.R.Civ.P. 56, calls for "particular cautio[n]" in its application. Stepanischen v. Merchants Despatch Transp. Co., 722 F.2d 922, 927 (1st Cir. 1983). The record in this case, like the record in many employment cases, is characterized by disputes over who said what to whom, and when, as interested witnesses have given their recollections of largely undocumented interactions that occurred several years ago. None of that, though, has stopped the defendant employer here--like the employer in many employment cases--from moving for summary judgment, arguing that the undisputed record evidence shows that it did not fire the plaintiff for, as she claims, performing acts that public policy would encourage.
Specifically, the plaintiff, Jeanne Grivois, claims that the defendant, Wentworth-Douglass Hospital, wrongfully terminated her for engaging in acts that public policy would encourage--her "expression of concern about Hospital policies which she believed had created the potential of harm to Hospital patients"--in violation of New Hampshire law. See Cloutier v. Great Atl. & Pac. Tea Co., 121 N.H. 915, 920 (1981) . Grivois has also sued the hospital's president and CEO, Gregory Walker, claiming that he defamed her when he told surgeons who had worked with her that she was "fired for engaging in a 'heinous act.'" The defendants have moved for summary judgment on that claim, too, as well as to exclude or limit the trial testimony of several of Grivois's expert witnesses.
Grivois, for her part, has filed a motion to amend her complaint, see Fed.R.Civ.P. 15(a)(2), seeking to add claims based on Walker's statement and the statement of another hospital employee who, Walker says, erroneously told him that Grivois had been fired for threatening to publicly say that her supervisor is gay (which the supervisor denies). This court has subject-matter jurisdiction under 28 U.S.C. § 1332(a)(1) (diversity), because Grivois is a citizen of Maine and Wentworth-Douglass and Walker are citizens of New Hampshire.
Following oral argument, the defendants' motion for summary judgment is denied, their motion to exclude or limit the testimony of Grivois's designated expert witnesses is granted in part and denied in part, and Grivois's motion to amend is denied. In moving for summary judgment on Grivois's wrongful discharge claim, the defendants argue that (1) her mere "''expressions of concern' that changes in training or different staffing patterns could create a potential risk to patient safety . . . were not, as a matter of law, protected acts, " (2) in any event, Grivois lacks evidence that she was fired for expressing those concerns, as opposed to the unrelated reason that the hospital gave for firing her, and (3) Grivois likewise lacks evidence that she was fired "out of bad faith, malice, or retaliation, " which she must also prove to prevail on her wrongful termination claim, Short v. Sch. Admin. Unit No. 16, 136 N.H. 76, 84 (1992). As fully explained below, see infra Part I.C.I, the court disagrees. Based on the record evidence (much of which the defendants have failed to address or glossed over in their briefing), a rational jury could find that (1) public policy encouraged Grivois to complain to her managers that their changes to training and staffing procedures had endangered patient safety, (2) the hospital fired Grivois for making such complaints, and (3) it acted out of bad faith, malice, or retaliation in doing so. As also fully explained below, the defendants are incorrect that Walker's statement that Grivois had been fired for (as one witness remembers the statement) "a heinous crime" was either inactionable or privileged as a matter of law. See infra Part I.C.2. The motion for summary judgment is denied.
Grivois's motion to amend is also denied, because, as fully discussed below, she filed it several months after the applicable deadline and has failed to show good cause for that delay. See infra Part II. Finally, the defendants' motion to exclude or limit the opinion testimony of Grivois's designated experts is denied insofar as it is based on the alleged untimeliness of her expert disclosures, see infra Part III.A, but is granted in part and denied in part insofar as the motion argues that the opinions are inadmissible, see infra Part III.B. The court will address the various motions in turn.
I. Summary judgment
A. Applicable legal standard
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A dispute is "genuine" if it could reasonably be resolved in either party's favor at trial by a rational fact- finder, and "material" if it could sway the outcome under applicable law. See Estrada v. Rhode Island, 594 F.3d 56, 62 (1st Cir. 2010). Importantly, in deciding summary judgment, the court "views all facts and draws all reasonable inferences in the light most favorable to the non-moving" party. Id.
The facts relevant to the defendants' summary judgment motion, set forth in the light most favorable to Grivois, are as follows. Grivois began working for Wentworth-Douglass as a surgical technologist in 1976 and, by the time of the events giving rise to this lawsuit, was acting as a "service coordinator" for the hospital's general surgeons.
In 2009, Wentworth-Douglass hired Christine Hamill as its assistant vice president of surgical and out-patient services, a position that included oversight of the operating room ("OR"). Hamill, in turn, hired Dale Spracklin as the OR's nurse manager, in or around June 2010.
1. Grivois's complaints to management
Hamill and Spracklin began to implement certain changes to staffing procedures in the OR. One of these changes was to relax the training required for new OR staffers. Previously, a new staff member could fully assume independent duties in the OR only after completing three months of training and convincing the "operating room educator, " Cindy Wyskiel, that the new hire was ready for that responsibility. If, based on feedback from more experienced staffers, Wyskiel determined otherwise, then the new staffer was not left alone to perform tasks for patients in the OR until he or she demonstrated the necessary proficiency. After Hamill took over, however, new staffers were given sole responsibility over those tasks solely by virtue of completing the three-month training period.
Grivois says that this led to several situations where patients were unnecessarily exposed to the risk of harm. She recalls one case of a laparoscopic abdominal surgery in which a new staff person could not readily identify an instrument that the surgeon had requested (a hemoclip), resulting in an interruption to the procedure and, ultimately, the need to remove the laparoscope so that blood could be cleared. Grivois says that this delay could have increased the potential for infection and tissue morbidity and that "[u]nder the former training procedure, the experienced staff person with whom [the new hire] would have been paired would have prevented this unnecessary delay." Grivois recalls that, in another case, a new staff member incorrectly positioned the cautery device, causing its foot pedal to jam underneath the operating table so that the device malfunctioned—which occasioned several minutes' delay as the cautery unit was reactivated. Grivois also recalls another incident in which a new staff member improperly repositioned an obese patient for a procedure, risking nerve damage.
At her deposition, Grivois said that she raised her concerns about the orientation of new staff--specifically, "the fear that something was going to happen to a patient"--to Wyskiel on "several" occasions. Grivois also testified that she also raised the issue "10, 12, multiple times" with Spracklin, as well as during "a long talk" with Hamill in the late spring of 2010. In addition, in her answers to the defendants' interrogatories, Grivois states that she told Spracklin "about all of the dangers that [Grivois] witnessed at [her] yearly evaluation, " which took place in or around September 2010.
Another change that Hamill and Spracklin had started to implement, in the fall of 2010, was to introduce a system called "PODS" (an acronym for "professional of designated speciality"). Under this system, each OR nurse works in just a few specific surgical specialities. This focus, in theory, enables the nurse to better familiarize himself or herself with the procedures common to those specialties. This differs from a more traditional staffing model, in which each nurse is expected to assist with all types of surgery, rather than specializing.
At her deposition, Grivois testified that she "saw flaws in the POD system which [she] stated to" Hamill and Spracklin, telling them that it was "a patient safety issue." Under the PODS regime, as Grivois states in her answers to the defendants' interrogatories, a surgeon "would train people who would then not be in his [operating] room [assisting] for a long time, then he would train more people[, ] then when the original people rotated back into his room, they had totally forgotten what he had taught them." Grivois states that "[t]his is not good patient care" because "[i]nexperienced staff make more mistakes." In addition, Grivois states, "[t]he service coordinators are not there" to guide the inexperienced staff because they "are in other rooms doing other POD services."
2. Grivois's suspension and firing
In September 2010, Hamill and Christi Blanchard, who held the title of "Human Resource Recruitment and Retention Officer" at Wentworth-Douglass, informed Spracklin that two nurses who had recently left the hospital's employ had complained about Grivois during their exit interviews. These nurses had said that "Grivois was mean to them, did not support the OR staff, and was an overall bad influence in the OR." Spracklin spoke to both of the nurses, who generally repeated the substance of what they had said in their exit interviews.
In an affidavit submitted with Grivois's objection to the summary judgment motion, Spracklin explains that she "found it easy to believe that people were quitting based on inappropriate behavior by Ms. Grivois, " because, among other reasons, Hamill and Blanchard had told Spracklin that "Grivois had a reputation for being a disruptive employee and there were perhaps multiple written warnings in her personnel file." In fact, Spracklin attests, Hamill and Blanchard "led [her] to believe that Ms. Grivois' complaints about the implementation of the POD system were just more examples of her disruptive behavior. I was told that I should, get rid of her.'" Spracklin further attests that Hamill and Blanchard told her, after Spracklin began working at Wentworth-Douglass in June 2010, that she "would have difficulty in implementing changes, " due in part to certain employees who "would be reluctant to change." Hamill and Blanchard identified Grivois as "one of those 'trouble' employees."
Spracklin (with the assistance of Hamill and Blanchard) took formal disciplinary action against Grivois, in the form of a "Level II Warning, " based on the outgoing nurses' complaints. At a one-on-one meeting in November 2010), Spracklin presented Grivois with the warning, but she refused to sign it. In disputing the accuracy of the nurses' complaints, Grivois told Spracklin, according to Spracklin's affidavit:
I shouldn't believe everything that I heard from OR staffer members. She then commented that I should hear what OR staff members said about me.
I asked her what was being said. She replied that others had said: that I had been fired from my last job, that I was going through a divorce, and that I was gay.
Spracklin assured Grivois that these stories were untrue. Spracklin then told Hamill what Grivois had said. On the next working day, Grivois apologized to Spracklin, who said she would be making a formal complaint about Grivois's comments.
To do so, Spracklin met with Erin Flanigan, the vice president of human resources at Wentworth-Douglass, on November 19, 2010. Flanigan, in turn, notified Grivois of Spracklin's complaint. When Flanigan met with Grivois, she admitted to making the inappropriate comments to Spracklin. Flanigan notified Grivois that she was being suspended.
On November 22, 2010, Hamill and Flanigan presented Grivois with written notice that, "[biased on [their] investigation of the recent complaint lodged against [her] and [her] admission of said complaint, " Grivois was immediately suspended without pay until December 13, 2010, and relieved of her role as the service coordinator for general surgery (she was reassigned to orthopedics). She was also warned that "[i]f improvement in these areas does not occur, further disciplinary action, up to and including termination, may occur." Grivois objected that the punishment was too harsh, and refused to sign the notice, asking for time to decide how to respond. After Flanigan agreed to give Grivois a week, Hamill left the room, and Flanigan asked Grivois whether she would talk to Spracklin. Grivois agreed.
After Spracklin entered, she told Grivois that she was being moved from her position in general surgery to orthopedics, but that "we're going to try to work things out." What happened next is a matter of some dispute. Flanigan has testified that Grivois "moved forward to the edge of her chair and actually leaned forward to" Spracklin to express "disagreement with the process around the Level II Warning" (which, as just discussed, had resulted from the complaints the two outgoing nurses had made about Grivois). In response, Flanigan recalls, Spracklin "got flustered, was actually sitting back, had a flushed face and was kind of looking at [Flanigan] very deer-in-the-headlights." So Flanigan "stopped the conversation, " because "in the course of a conversation where her manager was trying to get the employee focused on the future, it became clear . . . that this was not an employee who was open to hearing feedback from" Spracklin.
Spracklin's account of the meeting is that "obviously [Grivois] was upset" and "defensive" at the loss of her role as the service coordinator for general surgery, and "folded [her] arms and sighed, " but that "[t]he discussion was not heated" and that neither woman "became argumentative." Grivois, for her part, testified that she told Spracklin, "I would admit to something I did if I did it, but I didn't know what she said that I did .... I needed to see the complaint." Grivois stated that, in giving that message, she "used some hand motion" and may have been "leaning forward" but did not raise her voice. Grivois further recalled that Spracklin "didn't seem flustered." In fact, Grivois testified, after Flanigan "stopped the conversation and said this is going nowhere, " Grivois asked Flanigan, "was I unprofessional in my demanor to [Spracklin] at all?" and Flanigan said "no, you weren't." In any event, Flanigan ended the meeting. She then called Hamill and reported that Grivois "was not interested in improving her interpersonal relations with [Spracklin] or with people generally, and so it was [Flanigan's] recommendation that [Wentworth-Douglass] consider termination." Hamill agreed, and decided to fire Grivois. Spracklin was not consulted further. On November 23, 2010 (the day after Grivois's ...