Murray v. Kindred Nursing Centers West LLC

United States Court of Appeals
For the First Circuit

No. 14-1943

DENISE MURRAY,

Plaintiff, Appellant,

v.

KINDRED NURSING CENTERS WEST LLC,
d/b/a Kindred Transitional Care and Rehabilitation-Kennebunk,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Jon D. Levy, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.

Guy D. Loranger, with whom Law Office of Guy D. Loranger was
on brief, for appellant.
James R. Erwin, with whom Michelle Y. Bush and Pierce Atwood
LLP were on brief, for appellee.

June 10, 2015
 SELYA, Circuit Judge. Denise Murray portrays herself as

a whistleblower and charges that her quondam employer, Kindred

Nursing Centers West LLC (Kindred), fired her on that account.

Kindred denies this charge, asserting that it terminated Murray's

employment for a legitimate, nondiscriminatory reason: suspected

drug diversion. The district court assiduously sorted through the

evidence supporting these dueling allegations and entered summary

judgment in favor of Kindred. After careful consideration, we

affirm.

I. BACKGROUND

We rehearse the relevant facts in the light most

favorable to the plaintiff, drawing all reasonable inferences to

her behoof. See Kearney v. Town of Wareham, 316 F.3d 18, 19 (1st

Cir. 2002).

During the relevant time frame, Kindred operated a

nursing facility in Kennebunk, Maine, offering short-term and long-

term rehabilitation care. In March of 2011, Kindred hired Murray

as a licensed practical nurse. On four occasions during the first

three months of 2012, Murray claims to have reported concerns about

one of her supervisors (a registered nurse whom we shall call

Melissa Doe). According to Murray, Doe sometimes appeared to be

under the influence of drugs while on duty and once had admitted

-2-
taking a "Xanabar" before coming to work.1 Murray also claims to

have reported that Doe once asked to be the person assigned to

"take care of" oxycodone that needed to be destroyed.

Murray claims to have made these reports to Kindred's

director of nursing, Dawn Guptill, and Murray says that Guptill

agreed to look into her allegations. In response to her last

report, Murray says that Guptill "snapped" at her and stated "I

will handle it my own way." Guptill denies much of Murray's

account, and there is no written record either of Murray's

complaints or of an investigation by Guptill.

On March 9, 2012 (about a week after the fourth report),

Guptill met with Bethany Gage (a nurse who worked at the facility).

Gage informed Guptill that Murray had documented administering

oxycodone (a powerful pain medication) to Resident 1 the previous

day when, to Gage's knowledge, Resident 1 had not been in pain for

quite some time.2 Gage further noticed that Murray had documented

administering oxycodone to Resident 1 on several occasions over the

previous few weeks even though no other nurse had done so. When

Gage asked Resident 1 if he either had been in pain or had received

pain medication lately, he replied in the negative.

1
According to Murray, "Xanabar" is a slang term denominating
four Xanax pills taken together.
2
To protect the patients' privacy, we refer to them — as did
the district court — by number rather than name.

-3-
 After receiving this distressing news, Guptill surveyed

other patients' records. Upon inquiry, Resident 2 denied having

received oxycodone at the time Murray had recorded administering it

to him. Guptill similarly learned that Murray had documented

administering medication to Resident 3 several hours after

Resident 3 had been discharged from the facility. On another

occasion, after medication was "punched in error," Murray failed

either to indicate what was done with the medication or to obtain

the required second signature of a witness to its destruction.

Guptill discovered other irregularities as well: for example,

Murray listed a February 2 administration of medication beneath

entries describing medication administrations on February 3 and

February 4 — a sequence demonstrating that Murray's February 2 note

was entered at least two days in arrears. On another patient's

chart, Murray had altered the time of administration of a drug by

an hour. And, finally, Murray's signature varied widely within and

between documents and was sometimes totally illegible.

Within a matter of hours after speaking with Gage,

Guptill had concluded that Murray was diverting drugs from

patients. Guptill promptly informed Murray that she was terminated

for drug diversion. Murray denied the charge and requested a

meeting, but Guptill refused to see her.

As required by law, Guptill reported Murray's dismissal

to the Maine State Board of Nursing (the Board) and the suspected

-4-
drug diversion to the Maine Department of Health and Human Services

(DHHS). See Me. Rev. Stat. tit. 24, § 2506; 10-144-110 Me. Code R.

§ 17.D.10. Murray entered into a consent agreement with the Board

in which she admitted that she was properly disciplined for

"illegible and substandard documentation, particularly concerning

narcotic administration" in violation of state law and Board rules.

DHHS's investigation into the matter proved inconclusive, although

it noted that medication errors persisted at the facility even

after Murray's discharge.

After these administrative proceedings wrapped up, Murray

repaired to a state court and accused Kindred of violating Maine's

Whistleblowers' Protection Act (WPA), Me. Rev. Stat. tit. 26,

§§ 831-840. The gravamen of her suit was an allegation that

Kindred had cashiered her for complaining about Doe. Citing

diversity of citizenship and the existence of a controversy in the

requisite amount, Kindred removed the action to the federal

district court. See 28 U.S.C. §§ 1332(a), 1441.

During pretrial discovery, it came to light that Murray

had filed for bankruptcy in 2009 but had not amended the

appropriate bankruptcy schedule to disclose her whistleblower claim

as an asset. See 11 U.S.C. § 521(a)(1)(B)(i); see also id.

§§ 541(a)(7), 1306(a)(1). Kindred later moved for summary judgment

on two grounds. It maintained that Murray's failure to schedule

her claim in the bankruptcy court judicially estopped her from

-5-
suing on that claim, see, e.g., Guay v. Burack, 677 F.3d 10, 17

(1st Cir. 2012); and in all events, that Murray's claim failed on

the merits. The district court rejected Kindred's judicial

estoppel theory but granted summary judgment on the merits in its

favor. See Murray v. Kindred Nursing Ctrs. W. LLC, No. 13-341,

2014 WL 4411044 (D. Me. Sept. 8, 2014). The court premised its

ruling on Murray's failure to make out a trialworthy issue on her

claim that Kindred had ousted her because of her role as a

whistleblower. See id. at *9-11. This timely appeal ensued.

II. ANALYSIS

Summary judgment is "a means of avoiding full-dress

trials in unwinnable cases, thereby freeing courts to utilize

scarce judicial resources in more beneficial ways." Mesnick v.

Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991). We review the

district court's disposition of a summary judgment motion de novo,

"scrutiniz[ing] the evidence in the light most agreeable to the

nonmoving party, giving that party the benefit of any and all

reasonable inferences." Noviello v. City of Bos., 398 F.3d 76, 84

(1st Cir. 2005). To prevail, the movant must demonstrate that

"there is no genuine dispute as to any material fact" and that it

"is entitled to judgment as a matter of law." Fed. R. Civ. P.

56(a).

Consistent with this praxis, the nonmovant can forestall

summary judgment by "present[ing] definite, competent evidence"

-6-
demonstrating the existence of a genuine dispute about a material

fact. Mesnick, 950 F.2d at 822. Such evidence must be

sufficiently probative that, if it is credited, a factfinder could

resolve the case in favor of the nonmovant. See Kearney, 316 F.3d

at 22. "The mere existence of a scintilla of evidence in support

of the plaintiff's position will be insufficient; there must be

evidence on which the jury could reasonably find for the

plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986).

Against this backdrop, we turn to the legal structure

underlying Murray's claim. The WPA prohibits discrimination

against an employee who makes a good-faith report of, among other

things, "a condition or practice that would put at risk the health

or safety of" any person. Me. Rev. Stat. tit. 26, § 833(1)(B); see

id. § 833(1)(E) (providing protection for employees who report "an

act or omission that constitutes a deviation from the applicable

standard of care for a patient by an employer charged with the care

of that patient"). Maine law provides a private right of action

for a violation of the WPA. See id. tit. 5, §§ 4572(1)(A), 4621;

see also Costain v. Sunbury Primary Care, P.A., 954 A.2d 1051, 1053

& n.2 (Me. 2008).

With respect to claims brought pursuant to the WPA, Maine

courts employ the familiar three-part McDonnell Douglas framework.

See Stanley v. Hancock Cnty. Comm'rs, 864 A.2d 169, 174 (Me. 2004)

-7-
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973)). Under that framework, the plaintiff must make out a prima

facie case through a showing that "(1) she engaged in activity

protected by the WPA; (2) she experienced an adverse employment

action; and (3) a causal connection existed between the protected

activity and the adverse employment action." Walsh v. Town of

Millinocket, 28 A.3d 610, 616 (Me. 2011). Once this prima facie

showing is made, the burden shifts to the defendant to "produce

some probative evidence to demonstrate a nondiscriminatory reason

for the adverse employment action." DiCentes v. Michaud, 719 A.2d

509, 515 (Me. 1998). When that light burden of production is met,

the burden shifts back to "the employee to persuade the factfinder

that there was, in fact, a causal connection between the protected

activity and the adverse employment action." Id.

In the case at hand, Murray made out her prima facie

case. She reported a supervisory nurse for behavior indicative of

impairment, thereby engaging in a protected activity; she

experienced an adverse employment action (the loss of her job); and

those two events occurred in a relatively compact time frame.

Under Maine law, close temporal proximity between the protected

activity and the adverse action is a sufficient showing of

causation for the purpose of establishing a plaintiff's prima facie

case. See Stanley, 864 A.2d at 175. This put the ball in

Kindred's court, and Kindred identified a legitimate,

-8-
nondiscriminatory reason for firing Murray: suspected drug

diversion. Thus, the case — at the summary judgment stage — boiled

down to whether Murray adduced sufficient evidence to support a

finding that drug diversion was a pretext and, concomitantly, that

her claimed whistleblowing activity "was the 'true reason or

motive' for [her] dismissal." Kearney, 316 F.3d at 23 (quoting

Hoeppner v. Crotched Mt. Rehab. Ctr., Inc., 31 F.3d 9, 14 (1st Cir.

1994)).

The district court thought not, see Murray, 2014 WL

4411044, at *9-11, and we agree. "To demonstrate a causal link,

the plaintiff must show that the protected activity

(whistleblowing) 'was a substantial, even though perhaps not the

only, factor motivating the employee's dismissal.'" Caruso v.

Jackson Lab., 98 A.3d 221, 226 (Me. 2014) (quoting Walsh, 28 A.3d

at 616-17). Put simply, "her protected whistleblowing activity

must be a but-for cause of the employer's decision to terminate the

employment." Id. at 227.

Appraisal of the record as a whole discloses an absence

of any significantly probative evidence sufficient to support a

finding that Murray's firing would not have occurred but for her

whistleblowing activity. Murray admitted to the Board that her

documentation practices violated state law and fell well below

professional standards. What is more, she does not meaningfully

contest that the problems identified by Guptill in her

-9-
investigation might have led Guptill to believe (or, at least, to

suspect) that Murray was engaged in drug diversion. Drug diversion

in a nursing home is a serious matter, and — given Guptill's

supportable findings — Murray's discharge was not only objectively

justified but also inevitable. See Kearney, 316 F.3d at 24. Once

those findings were in hand, it is hard to imagine how Murray's

employment could have endured.

In an effort to blunt the force of this reasoning, Murray

strives to show that Guptill's drug diversion rationale was a

pretext. To this end, she assembles an array of facts designed to

show pretext. At the outset, Murray notes that she was terminated

for "drug diversion" but that, in the course of this litigation,

Kindred cited "suspected drug diversion" as the reason for her

termination. In her view, this shifting rationale evidenced

pretext. See, e.g., Domínguez-Cruz v. Suttle Caribe, Inc., 202

F.3d 424, 432 (1st Cir. 2000). But in this case, the distinction

between "drug diversion" and "suspected drug diversion" is without

a difference. Both descriptions capture the same notion, which

Kindred has consistently articulated: at the time of Murray's

firing, Kindred reasonably concluded that she engaged in drug

diversion. Whether she actually diverted drugs is of no moment.

-10-
Kindred's reasonable suspicion was sufficient to justify

terminating Murray's employment.3

In a similar vein, Murray submits that because there is

no direct proof that she actually diverted drugs, a rational jury

could conclude that Kindred fired her for some reason unrelated to

drug diversion. See Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 147 (2000) (noting that, in some circumstances, the

falsity of a proffered explanation may give rise to an inference

"that the employer is dissembling to cover up a discriminatory

purpose"). In support, she labors to explain away each piece of

evidence upon which Guptill relied: the two patients who denied

receiving medication were not always lucid; some of the seemingly

irregular entries may have been misread by Guptill; and other

irregular entries were indicative only of careless recordkeeping.

In addition, Guptill's investigation spanned only a few hours and

did not include any input from Murray. Consequently, the

investigation signaled a "rush to judgment."

Admittedly, Murray's parsing of the evidence may suffice

to create a genuine factual dispute about whether she actually

diverted drugs. But that is beside the point: evidence of a

decisionmaker's mistaken judgment is not dispositive of the

question of pretext unless that evidence would permit the

3
We add, moreover, that this is quite plainly a tempest in
a teapot. Contemporaneous reports written by Guptill refer to
"suspected drug diversion" as the basis for her actions.

-11-
factfinder to conclude that the stated nondiscriminatory

justification for the adverse employment action was either

knowingly false or made in bad faith. See Jordan v. Summers, 205

F.3d 337, 343 (7th Cir. 2000) ("In order to show pretext, [the

plaintiff] must demonstrate that [the defendant's] proffered reason

is a lie or completely lacks a factual basis." (footnote omitted));

see also Morgan v. Mass. Gen. Hosp., 901 F.2d 186, 191 (1st Cir.

1990). Here, then — even assuming for argument's sake that Murray

never actually diverted drugs — Murray has proffered no evidence

sufficient to support an inference that Guptill was unjustified in

believing that she did. Nor has she proffered any evidence

sufficient to support an inference that a more thorough

investigation would have led to that conclusion. The short of it

is that nothing in this record suffices to support a finding of

either knowing falsity or bad faith. Casting aspersions is not

enough. See Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5,

8 (1st Cir. 1990).

Murray soldiers on. She claims that Guptill's treatment

of her, as compared to Doe, constitutes evidence of pretext. In

support, Murray notes that there is no record of any investigation

of Doe's alleged drug use despite Murray's multiple reports; yet

when Murray was reported for drug diversion, Guptill's reaction was

swift and decisive.

-12-
 We agree with Murray's premise: in appropriate

circumstances, pretext may be inferred from proof that similarly

situated employees "were not discharged while the plaintiff was."

Morgan, 901 F.2d at 191. However, we disagree with Murray's ipse

dixit that she and Doe were similarly situated. "No valid

comparison can be drawn between two incidents for the purpose of

proving disparate treatment if 'differentiating or mitigating

circumstances' distinguish either the employee's conduct or the

employer's response to it." Conward v. Cambridge Sch. Comm., 171

F.3d 12, 21 (1st Cir. 1999) (quoting Perkins v. Brigham & Women's

Hosp., 78 F.3d 747, 751 (1st Cir. 1996)). So it is here: Doe was

suspected of drug use, while Murray was suspected of drug

diversion.

We do not doubt that drug use by a nurse is a

consequential matter. But the means, mode, and method of

investigating suspected drug use are considerably more complicated

than those available for investigating suspected drug diversion (in

the latter instance, as here, a simple check of records often will

suffice). Moreover, both state regulations and company policy

recognize drug diversion as a problem uniquely worthy of prompt

investigation and decisive sanction (up to and including

dismissal).

Specifically, state regulations required Kindred to

notify DHHS within 72 hours "when there is suspicion that a

-13-
medication has been tampered with or stolen," and this notification

must be followed by a written report. 10-144-110 Me. Code R.

§ 17.D.10 (emphasis supplied). State law imposed no similar

notification-and-report requirement on Kindred for suspected drug

use by employees.4

This distinction is also borne out by Kindred's employee

handbook (the Handbook), which places great emphasis on the

seriousness of diverting drugs from patients. The Handbook states

that "Kindred will take disciplinary action, up to and including

separation of employment, when it has a reasonable belief that an

employee has sought to obtain medications from the facility that

are intended for resident use." There is no comparable provision

relating to drug use: although the Handbook expressly prohibits

employees from working while under the influence of alcohol, drugs,

or medication, it contains no parallel provision mandating

discipline.

In a last-ditch effort to salvage her differential

treatment argument, Murray makes two additional points. First, she

suggests that other nurses' signatures varied or were illegible,

4
The record does not bear out Murray's belated attempt to
characterize her complaints about Doe as complaints involving both
drug use and drug diversion. Although she reported that Doe
invited her on one occasion to let Doe "take care of" oxycodone
that needed to be discarded, Murray declined that invitation and
the oxycodone was appropriately destroyed. No matter how one
characterizes this incident, it was not the type of incident that
required DHHS notification and reporting.

-14-
yet those nurses suffered no discipline. The record contains no

evidence, though, that any of these signature-related problems in

any way implicated drug diversion or otherwise violated either

state law or company policy.

Second, Murray suggests that Guptill's failure to

investigate another nurse who documented administering drugs to

Resident 2 when he was allegedly not in pain is evidence of

differential treatment. This suggestion confuses Resident 2 with

Resident 1. Resident 1 denied experiencing pain; Resident 2 only

denied receiving medication at the time that Murray — not the other

nurse — recorded its administration.

III. CONCLUSION

We need go no further.5 In the last analysis, Murray's

litigation position hinges on her insistence that Guptill was

looking for a reason to rid herself of Murray and her complaints.

But under Maine law, proof of retaliatory animus alone does not

suffice to demonstrate the causal connection required to make out

a claim for whistleblower protection. See DiCentes, 719 A.2d at

516; see also Kearney, 316 F.3d at 25-26. In other words, "by

engaging in a protected activity an employee does not acquire

5
This appeal was consolidated for argument with Appeal No.
14-2072. The latter is an appeal by Kindred (probably an
unnecessary precaution) from the district court's rejection of its
judicial estoppel theory. See Murray, 2014 WL 4411044, at *7. We
do not reach the judicial estoppel issue and, by separate order, we
today dismiss that appeal as moot.

-15-
immunity from the same risks that confront virtually every employee

every day in every work place." Blackie v. Maine, 75 F.3d 716,

723-24 (1st Cir. 1996). At a minimum, the plaintiff must "adduce

some significantly probative evidence that the [defendant's]

retaliatory animus played a materially causal role in the

termination of [her] employment." Kearney, 316 F.3d at 26. Here,

there is nothing from which a reasonable factfinder could infer

that Murray's firing would not have occurred but for her

whistleblowing activity.

Affirmed.

-16-