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Colligan v. Mary Hitchcock Memorial Hospital

United States District Court, D. New Hampshire

December 17, 2018

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.


          Joseph A. DiClerico, Jr. United States District Judge.

         R. 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 objects.

         Standard of Review

         Summary 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)).


         Colligan, 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 Advisory.

         In 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.

         Although 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.[1] While discussing the possibility and nature of her employment with Dartmouth-Hitchcock, Colligan told Blike that she had PTSD as a result of her daughter's death.

         Around 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.

         On 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.

         Concerned 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.

         Colligan 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.

         Colligan 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 minutes.

         Nancy 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.

         Nancy 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 Officer.

         Meanwhile, 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.

         After 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.

         John 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 recommendation.

         Malanowski 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 contract.

         After 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.

         Aframe 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 issues.

         The 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.

         In 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.

         Dartmouth-Hitchcock 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 professor position.

         On one 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.

         After 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.

         Faced 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.

         In this 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 damages.


         Dartmouth-Hitchcock moves for summary judgment on all of Colligan's claims. In response, Colligan asserts that material facts are in dispute which precludes summary judgment. ...

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