United States District Court, D. New Hampshire
R. Lacey Colligan
Mary Hitchcock Memorial Hospital, et al.
William E. Christie, Esq. Natalie J. Laflamme, Esq. Timothy
John McLaughlin, Esq. William D. Pandolph, Esq. Christopher
James Pyles, Esq.
A. DiClerico, Jr. United States District Judge.
Lacey Colligan brought suit against Mary Hitchcock Memorial
Hospital and Dartmouth Hitchcock Clinic
(“Dartmouth-Hitchcock”), alleging discrimination
based on her disability, post-traumatic stress disorder, and
state law claims for negligent and intentional infliction of
emotional distress, defamation, and invasion of privacy.
Dartmouth-Hitchcock moves for summary judgment. Colligan
judgment is appropriate when the moving party “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 genuine issue of material fact
only exists if a reasonable factfinder . . . could resolve
the dispute in that party's favor.” Town of
Westport v. Monsanto Co., 877 F.3d 58, 64-65 (1st Cir.
2017) (internal quotation marks omitted). The court must take
the facts and draw all reasonable inferences in the light
most favorable to the nonmoving party. McGunigle v. City
of Quincy, 835 F.3d 192, 202 (1st Cir. 2016). However,
“[a]n inquiring court is not obliged either ‘to
draw unreasonable inferences or credit bald assertions [or]
empty conclusions.'” Theriault v. Genesis
HealthCare LLC, 890 F.3d 342, 348 (1st Cir. 2018)
(quoting Cabán Hernández v. Phillip Morris
USA, Inc., 486 F.3d 1, 8 (1st Cir. 2017)).
a medical doctor specializing in pediatric medicine, began
suffering from PTSD after her daughter died unexpectedly in
2012. Soon afterward, Colligan ended her practice of clinical
medicine and formed a limited liability company, Sharp End
2014, Colligan and her husband, John Colligan, moved to
Hanover, New Hampshire, where Colligan began working for
Dartmouth-Hitchcock through a contract with Sharp End
Advisory. The American Medical Association awarded
Dartmouth-Hitchcock funding to conduct a study, and Dr.
George Blike, a department head at Dartmouth-Hitchcock, hired
Colligan to head the team conducting the study. In addition,
Colligan assisted Dartmouth-Hitchcock in obtaining a $3.9
million federal grant.
Dartmouth-Hitchcock and Blike would have preferred to hire
Colligan as an employee, Colligan preferred to work as an
independent contractor through Sharp End
Advisory. While discussing the possibility and
nature of her employment with Dartmouth-Hitchcock, Colligan
told Blike that she had PTSD as a result of her
the same time that it hired Colligan as an independent
contractor, Dartmouth-Hitchcock's executive vice
president, Dr. John Birkmeyer, became the face of a
restructuring program that required layoffs. Because of these
layoffs, Birkmeyer grew unpopular among
Dartmouth-Hitchcock's staff. Birkmeyer held “town
hall meetings” with Dartmouth-Hitchcock staff about the
restructuring that were often contentious. Although she was
not subject to Dartmouth-Hitchcock's restructuring and
layoffs, Colligan understood that Birkmeyer was unpopular
among the hospital's staff.
September 1, 2015, while driving to work, Colligan passed
Birkmeyer's home, which was close to her own. In her
deposition, Colligan testified that she saw a
“Suburban-like” SUV parked across from
Birkmeyer's house, with a man sitting inside taking
photographs of the house. Colligan later identified the man
as a disgruntled physician whom Birkmeyer had fired.
by the presence of the SUV and the man taking photographs,
Colligan parked her car nearby and went to Birkmeyer's
front door. Nancy Birkmeyer, John Birkmeyer's wife,
answered. Colligan informed Nancy Birkmeyer that she thought
she had seen a former Dartmouth-Hitchcock employee taking
pictures of the home, although the large SUV had left by the
time of their conversation.
testified at her deposition that she then began experiencing
“flooding”, a symptom of PTSD that manifests as a
loud pulsing in the ears. Colligan, therefore, could not hear
or recall what she said after she warned Nancy Birkmeyer
about the SUV and the man inside.
told or intended to tell Nancy Birkmeyer that she did not
want to be a “nosy neighbor.” Nancy Birkmeyer,
however, testified that she heard Colligan say that she was a
“nosy employee.” Doc. 36-14 at 6. Birkmeyer also
heard Colligan state that she wanted Birkmeyer “to know
that everyone knows where you live.” Id.
Birkmeyer asked Colligan about her meaning, and Colligan
responded by “talking about” John Birkmeyer and
the restructuring issues discussed at the town hall meetings.
Nancy Birkmeyer became uncomfortable and excused herself from
the conversation, which had lasted approximately five
Birkmeyer thought that Colligan was threatening her because
of the restructuring plan. She believed that Colligan had
said, essentially, “We [the Dartmouth-Hitchcock
employees] know where you live.” Nancy Birkmeyer
received Colligan's comments as thinly-veiled threats,
not as bona fide concerns for the Birkmeyers' safety from
a third party.
Birkmeyer, who thought that Colligan seemed
“agitated”, “crazy”, and
“mentally ill, ” reported the encounter and
Colligan's statements “verbatim” to her
husband, John Birkmeyer. Doc. 36-14 at 8-9. John Birkmeyer
relayed the information provided to him by his wife to John
Malanowski, Dartmouth-Hitchcock's Chief Human Resources
Colligan purchased flowers for the Birkmeyers and wrote an
apology note. Colligan returned to the Birkmeyers' home
the same morning and left the flowers and note on their
doorstep. Nancy Birkmeyer, who saw Colligan leave the flowers
on her doorstep, described this act as
“frightening”. Doc. 36-14 at 18. Nancy Birkmeyer
reported Colligan's second appearance to her husband.
identifying Colligan as the person who had made the alleged
threats, John Birkmeyer contacted Blike, Colligan's
supervisor, who told Birkmeyer that there was no reason that
Colligan would be mad. He also told Birkmeyer about
Colligan's daughter's death.
Birkmeyer, Malanowski, Blike, as well as Karen Aframe,
Dartmouth-Hitchcock's Director of Employee Relations,
discussed terminating Colligan's contractual relationship
with Dartmouth-Hitchcock. Based on the information provided
by Nancy Birkmeyer, Malanowski and Aframe recommended that
Dartmouth-Hitchcock terminate the relationship. Blike, who
had the final responsibility in deciding whether to terminate
the contract, agreed with Malanowski and Aframe's
explained that he and Aframe recommended that Blike terminate
Dartmouth-Hitchcock's contract with Colligan because she
appeared “at a senior executive's house,
unannounced, and threaten[ed] the wife and family of a senior
leader.” Doc. 32-3 at 64. Birkmeyer likewise understood
that Dartmouth-Hitchcock was terminating Colligan because
“she came to [his] house not once but twice and
approached [his] family and said things that were interpreted
at the time and in retrospect as threatening.” Doc.
48-10 at 29. Although he agreed with it, Birkmeyer did not
participate in the decision to terminate Colligan's
Dartmouth-Hitchcock made the decision to terminate
Colligan's contract, John Birkmeyer contacted the Hanover
Police Department, informing them about the incident and
indicating that Colligan had “psychological problems
lately due to an unknown issue.” Doc. 42-19 at 2. John
Birkmeyer also informed the police that Colligan had
delivered an apology note and he and his wife were,
therefore, less concerned about any potential threat.
and Blike informed Colligan about the termination on the
afternoon of September 1, 2015. They also referred Colligan
to the New Hampshire Professionals Help Program, which
provides support services for mental health and psychiatric
same evening, David Luther, head of security at
Dartmouth-Hitchcock, sent an e-mail to Malanowski and Aframe,
discussing potential options for reducing any security threat
posed by Colligan. Luther noted that John Birkmeyer had
stated that he was “not overly concerned” about
Colligan “at the moment” because “she has
not been threatening in any way.” Doc. 48-21 at 2. He
added that a restraining order may not be an option
“due to the lack of threats . . . .” Id.
Luther noted, however, that Birkmeyer was “happy”
about Dartmouth-Hitchcock's decision to increase security
patrols near his office and that “he was comfortable
with just having the police department conducting extra
patrols in the area.” Id.
addition to terminating the contractual relationship,
Dartmouth-Hitchcock barred Colligan from accessing its
campus. Dartmouth-Hitchcock permitted Colligan to use its
public medical facility for “genuine medical
emergenc[ies]” and for scheduled appointments with a
medical care provider, with the caveat that Colligan contact
security before arriving for a scheduled appointment.
also informed the Geisel School of Medicine, which had
appointed Colligan as an unpaid adjunct professor, about
Colligan's encounter with Nancy Birkmeyer. The Geisel
School of Medicine terminated Colligan's adjunct
occasion soon after her exclusion from
Dartmouth-Hitchcock's premises, Colligan attempted to
access the public medical facility for a scheduled medical
appointment. As required, Colligan informed the
hospital's security team before her appointment. An
individual with Dartmouth-Hitchcock's security team
informed Colligan, incorrectly, that she needed to check in
with them when she arrived for the appointment and that she
required an escort.
Colligan filed this lawsuit, the Valley News, a local
newspaper, published an article detailing Colligan's
allegations and Dartmouth-Hitchcock's response. In the
article, a Dartmouth-Hitchcock spokesperson was quoted as
denying Colligan's discrimination allegations and stating
that Colligan “was terminated after she appeared at a
colleague's home early in the morning, acting in an
inappropriate and threatening manner that called for a police
response.” Doc. 36-10 at 1. The Valley News article
further detailed the basis for Colligan's lawsuit,
including Colligan's assertion that she went to the
Birkmeyers' home to warn them about a person taking
pictures of their home.
with the embarrassment arising from the publicization of the
September 1, 2015, incident, Colligan and her husband moved
to Massachusetts in August 2017. Colligan, however, maintains
that she would like to move back to Hanover in the future.
lawsuit, Colligan brings claims against Dartmouth-Hitchcock
for disability discrimination under the Rehabilitation Act,
29 U.S.C. § 794; public accommodation discrimination
under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12182, and N.H. Rev.
Stat. Ann. (“RSA”) 354-A:17; interference with an
attempt to exercise a protected right under the ADA, 42
U.S.C. § 12203(b) and RSA 354-A:11; intentional and
negligent infliction of emotional distress; defamation; and
invasion of privacy. Colligan also seeks recovery of her
attorneys' fees, costs, and enhanced compensatory
moves for summary judgment on all of Colligan's claims.
In response, Colligan asserts that material facts are in
dispute which precludes summary judgment. ...