United States District Court, D. New Hampshire
MEMORANDUM AND ORDER
Barbadoro, United States District Judge.
LaBranche was terminated from her job as an operating room
nurse at Frisbie Memorial Hospital in Rochester, NH.
LaBranche claims that when she was terminated, she was on
medical leave protected by the Family Medical Leave Act
(FMLA). She now brings a lawsuit against the hospital and
three hospital employees, alleging that the defendants
interfered with her rights under the FMLA; retaliated against
her for exercising those rights; defamed her after she left
the hospital; and negligently caused her emotional distress.
The defendants have filed a motion for summary judgment,
which I grant in part and deny in part.
LaBranche began work as an operating room nurse at Frisbie
Memorial Hospital in November 2008, and remained in that
position until her termination on January 9, 2014. Doc. No. 1
at 2, 6-7. During her first few years at Frisbie, from 2009
to 2011, LaBranche underwent four performance evaluations.
The evaluations were generally positive, although she was
admonished for engaging in “emotional outbursts”
with other staff. See Doc. No. 19-20 at 4. She was
also told, among other things, to “not allow her
emotions to affect job performance” and to “work
on communication with other staff, particularly when angry or
upset.” Id. at 3-4, 10. On her November 2010
evaluation, LaBranche commented that she had “developed
a 180 [degree] turn in my attitude - Honestly wasn’t
aware of how I came off.” Id. at 17. Other
aspects of her evaluations were quite positive, including
praise of her “circulating skills, ”
availability, experience, and ability to function in
emergency situations. Id. at 2-3, 7.
September 2011, LaBranche took medical leave to repair a
meniscus tear in her left knee. Doc. No. 19-1 at 4. Four days
after commencing leave, she received a letter from Pamela
Lord, Frisbie’s benefits manager, stating that her
leave was conditionally approved as FMLA leave, provided that
LaBranche submit a certification from her doctor that she had
a “serious health condition.” Id. The
certification form is known as a “WH-380-E Form.”
Id. Included with Lord’s letter was a
“Notice of Eligibility and Rights &
Responsibilities form, ” also known as a “WH-381
Form, ” which provided information about
LaBranche’s rights and responsibilities under the FMLA.
Id. In response to the request for certification,
LaBranche’s orthopedic surgeon, Dr. Robert Harrington,
sent a copy of his treatment notes from the surgery, which
Frisbie accepted in lieu of a completed WH-380-E Form.
Id. After several weeks spent recovering from
surgery, LaBranche returned to work. Id.
next year, in November 2012, LaBranche had another
performance evaluation. Although she
“[e]xceed[ed]” expectations in several
categories, LaBranche also received a “Needs
Improvement” with respect to “[d]evelop[ing] and
maintain[ing] a professional relationship with physicians,
peers, patients, and families.” Doc. No. 19-20 at 26.
In addition, she was warned not to “project [her] mood
onto others” and told to “[l]et go of grudges and
move on from altercations.” Id. at 28.
LaBranche disputed that evaluation and refused to sign it
until the following year, when she was allegedly told that
she needed to sign the form to receive a pay raise. See
id. at 29, 35; Doc. Nos. 12-3 at 15; 19-10 at 3-5.
months later, on January 24, 2013, LaBranche took another
medical leave to have a second knee surgery. Doc. No. 19-1 at
4. Like LaBranche’s previous leave, she received a
letter from Lord, the benefits manager, notifying her that
her absence would be conditionally approved as FMLA leave
provided that she submit a certification from her doctor.
Id. at 4-5. Lord again included a WH-381 Form with
her letter that notified LaBranche of her rights and
responsibilities under the FMLA. Id. at 5. This
notice stated, among other things, that LaBranche had
“a right under the FMLA for up to 12 weeks of unpaid
leave in a 12-month period, ” calculated on a
“rolling” basis. Doc. No. 19-7 at 4. Like her
previous leave, LaBranche had her surgeon send Frisbie a copy
of the treatment notes from the surgery, and Frisbie accepted
them in lieu of a completed WH-380-E Form. Doc. No. 19-1 at
weeks after leaving work, on March 8, 2013, LaBranche’s
doctor cleared her to “return to work on a graduated
basis.” Doc. No. 19-8 at 17. The parties agree that she
returned to work sometime after March 8, but the exact date
is unclear. See Doc. No. 12-4 at 9, 15-16.
The parties also agree, however, that LaBranche used up
“at least six weeks” of FMLA leave during this
absence. See id. at 9.
2013, LaBranche claims that Frisbie’s Director of
Surgical Services, Dianne O’Connell, a named defendant,
“antagonized” her. Doc. No. 1 at 4.
O’Connell allegedly called LaBranche into her office
“to advise her that others were complaining about
her.” Id. O’Connell also allegedly
“threatened that she had a suspension-from-work form in
LaBranche’s file.” Id. When LaBranche
asked for more information about the alleged complaints and
O’Connell’s apparent threat to suspend her,
O’Connell “could not substantiate those claims
with examples of who had said what, when, or why.”
November 2013, LaBranche was suspended from work for four
days following an altercation where she said “fuck
you” to a co-worker in the operating room. Doc. No.
12-3 at 15-16. She later received a “Report of
Counseling Interview” which indicated, among other
things, that she “does not communicate with several
co-workers” and that “[h]er inability to
communicate appropriately with staff is not conducive to
effective team work and poses a risk for patient
safety.” Doc. No. 12-1 at 6. LaBranche was warned that
“[a]ny subsequent incidents of unprofessional behavior
. . . will result in immediate termination of
employment.” Id. LaBranche admitted that her
behavior “was very unprofessional and it was not
appropriate.” Doc. No. 12-3 at 16.
after her suspension, on December 11, 2013, LaBranche began
another medical leave to receive treatment for mental health
issues. Doc. No. 19-1 at 5. In response, Lord again sent a
letter granting conditional approval for FMLA leave, provided
that LaBranche submit certification from her doctor.
Id. at 5-6. Lord’s letter also contained the
same eligibility notice as previously provided informing
LaBranche of her rights and responsibilities under the FMLA.
Id. This notice informed LaBranche that she was
eligible for FMLA leave and had a right under the FMLA for
“up to 12 weeks of unpaid leave in a 12-month period,
” calculated on a “rolling” basis. Doc. No.
19-11 at 3-4. The notice also stated the following:
You must be reinstated to the same or an equivalent job with
the same pay, benefits, and terms and conditions of
employment on your return from FMLA-protected leave. (If your
leave extends beyond the end of your FMLA entitlement, you do
not have return rights under FMLA.)
Id. at 4.
over a week later, on December 19, 2013, LaBranche’s
primary care physician, Dr. Deborah Harrigan, submitted a
completed WH-380-E Form to Frisbie. Doc. No. 19-13. The form
stated that LaBranche’s medical condition began on
December 11, 2013 and would last for “~ 2 mos.”
Id. at 4. Harrigan noted that LaBranche was
“unable to work at all at present.” Id.
at 3. The form did not provide a specific date on which
LaBranche planned to return to work. See id. at 4.
days later, on December 24, 2013, Lord sent an email to
O’Connell, the Director of Surgical Services. Lord
wrote: “Provider is putting her out for 2 months
starting 12/11/13. I’ll send her STD forms and
we’ll take action on 1/9/14. I’ve put it on my
calendar.” Doc. No. 19-14 at 2. That same day, Lord
sent LaBranche another letter. This letter notified LaBranche
of her eligibility for short-term disability benefits, but
made no mention of her FMLA leave. Doc. No. 19-15 at 2.
addition to Lord’s letter addressing LaBranche’s
right to disability benefits, Frisbie asserts that it also
sent LaBranche a “Form WH-382” stating that her
FMLA leave request had been approved. See Doc. Nos.
12-1 at 8; 12-4 at 13; 19-1 at 6. LaBranche claims, however,
that she never received the form.Doc. No. 19-17 at 3.
two weeks later, on January 9, 2014, LaBranche was
terminated. In a letter dated that day, Frisbie Vice
President of Human Resources Carol Themelis, another named
defendant, wrote to LaBranche:
Your FMLA and its associated job protection ended on January
9, 2013 [sic] and your provider has indicated that you remain
totally disabled. After examining the staffing needs of
Surgical Services it has been determined that the position
you held as an RN in the Operating Room must be filled.
Therefore, this letter confirms your separation from
employment effective today, January 9, 2013
Doc. No. 19-3 at 2. After receiving the letter, LaBranche
called Lord to tell her that she still had FMLA time
remaining and wished to return to work, pending clearance
from her doctor. Doc. No. 19-1 at 7. Lord told LaBranche that
it was too late and the decision to terminate her had been
made. Id. at 8.
justify the termination, Lord asserted that she had been
“carefully tracking” LaBranche’s FMLA leave
and determined that it had expired on January 9, 2014. Doc.
No. 12-4 at 20. During discovery, however, LaBranche obtained
a Frisbie payroll document with handwritten notations that
Lord admitted were hers. Doc. Nos. 19-12 (document); 12-4 at
19 (Lord admission). The notes on the document state, among
other things, that LaBranche was “out 12/11/13”
and “176.25 FMLA remains until 1/24/14.” Doc. No.
19-12. According to LaBranche, this document shows that she
had FMLA leave remaining when she was fired on January
See Doc. No. 19-1 at 7.
her termination, LaBranche applied for other nursing
positions, and in March 2014 she took a job as a travel nurse
at a facility in Colorado. Doc. No. 19-1 at 9. Four months
later, however, she returned to New Hampshire to seek
employment closer to home, and worked with a placement agency
to find nursing positions. Id. During her job
search, a placement agency associate named Jean Beauchamp
informed LaBranche that her reference from Frisbie could not
be used because Frisbie nurse Amanda Peaslee, a named
defendant, had told Beauchamp on the phone that LaBranche
“was not Frisbie’s standard of a good
nurse” and was not eligible for rehire. Id.
LaBranche asked Beauchamp if she would put her recollection
of Beauchamp’s conversation with Peaslee in writing,
but Beauchamp declined, citing company policy. Doc. No. 12-3
at 24. Peaslee’s comments made LaBranche
“[s]hocked and upset” and caused her to remove
Frisbie as a reference source. Doc. No. 19-1 at 10.
part, Peaslee denies that she told Beauchamp that LaBranche
“was not a good example of Frisbie’s standard of
a good nurse.” Doc. No. 12-1 at 18. She claims instead
that she “was asked if [LaBranche’s] nursing
skills were ‘excellent, standard, or poor’ and I
stated standard, or some similar language with options
provided by the recruiter.” Id. at 18-19.
“Jean then asked me, ” Peaslee stated, “if
[LaBranche] was eligible for rehire and I stated she was
not.” Id. at 19. According to Peaslee, that
was the substance of her conversation about LaBranche.
months later, in December 2014, LaBranche brought this
lawsuit against Frisbie, Themelis, O’Connell, and
Peaslee, for FMLA violations, defamation, and negligent
infliction of emotional distress.
STANDARD OF REVIEW
judgment is appropriate when 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). The
court must consider the evidence submitted in the light most
favorable to the nonmoving party, drawing all reasonable
inferences in its favor. See Navarro v. Pfizer
Corp., 261 F.3d 90, 94 (1st Cir. 2001).
seeking summary judgment must first show that there is no
genuine dispute of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). A material fact
“is one ‘that might affect the outcome of the
suit under the governing law.’” United States
v. One Parcel of Real Prop. with Bldgs., 960 F.2d 200,
204 (1st Cir. 1992) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). If the moving party
satisfies this burden, the nonmoving party must then
“produce evidence on which a reasonable finder of fact,
under the appropriate proof burden, could base a verdict for
it; if that party cannot produce such evidence, the motion
must be granted.” Ayala-Gerena v. Bristol
Myers-Squibb Co., 95 F.3d 86, 94 (1st Cir. 1996);
see Celotex, 477 U.S. at 323.