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LaBranche v. Frisbie Memorial Hospital

United States District Court, D. New Hampshire

August 17, 2016

Karen LaBranche
Frisbie Memorial Hospital, et al. Opinion No. 2016 DNH 197


          Paul Barbadoro, United States District Judge.

         Karen 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.

         I. BACKGROUND

         Karen 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.

         In 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.

         The 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.

         A few 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 5.

         Six 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.[1] 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.

         Throughout 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.” Id.

         In 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.

         Soon 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.

         Just 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.

         Six 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.

         In 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.[2]Doc. No. 19-17 at 3.

         Roughly 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 [sic].[3]

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.[4] Id. at 8.

         To 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 9.[5] See Doc. No. 19-1 at 7.

         After 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.

         For her 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. See id.

         Several 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.


         Summary 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).

         A party 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.

         III. ...

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