Theriault v. Genesis Healthcare LLC

United States Court of Appeals
For the First Circuit

No. 17-1717

PATRICIA THERIAULT,

Plaintiff, Appellant,

v.

GENESIS HEALTHCARE LLC,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Howard, Chief Judge,
Selya and Barron, Circuit Judges.

Guy D. Loranger, with whom Danielle M. Campbell and Law Office
of Guy D. Loranger were on brief, for appellant.
James R. Erwin, with whom Elizabeth B. Rao and Pierce Atwood
LLP were on brief, for appellee.

May 16, 2018
 SELYA, Circuit Judge. Plaintiff-appellant Patricia

Theriault bills this case as one in which the district court

ignored the teachings of the Maine Supreme Judicial Court (known

in its appellate capacity as the Law Court) and improperly relied

on the McDonnell Douglas framework, see McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), when granting her employer's motion

for summary judgment. At first blush, this billing seems to

suggest a nuanced question as to whether the McDonnell Douglas

framework is procedural (and, thus, should be applied by a federal

court when adjudicating a state-law cause of action in a diversity

case, regardless of whether the state court would apply it) or

substantive (and, thus, should not be applied by a federal court

when adjudicating a state-law cause of action in a diversity case,

so long as a state court would not apply it). See Gasperini v.

Ctr. for the Humanities, 518 U.S. 415, 427 (1996); Hanna v.

Plummer, 380 U.S. 460, 465-66 (1965). Appearances can be

deceiving, though, and the presumed need to answer this nuanced

question vanishes upon a careful reading of the Maine cases: the

district court did not rely on the McDonnell Douglas framework

but, rather, followed the prescriptions of the Law Court, went

directly to the issue of whether Theriault had made out a

cognizable claim for retaliation under state law, and determined

that she had not. See Theriault v. Genesis HealthCare LLC, No.

15-cv-530, 2017 WL 1403162, at *8 (D. Me. Apr. 19, 2017). We

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affirm, leaving the inquiry into the procedural/substantive

dichotomy for another day.

I. BACKGROUND

We glean the facts from the summary judgment record.

Theriault, a certified nursing assistant (CNA), began working in

1997 at RiverRidge, a nursing facility located in Kennebunk, Maine,

licensed by the Maine Department of Health and Human Services

(DHHS). The defendant, Genesis HealthCare LLC (Genesis), is the

parent company of Kennebunk Operations LLC, which owns and operates

RiverRidge. Most of the patients at RiverRidge are in assisted

living, and many suffer from neurological deficits. As a licensed

nursing facility, RiverRidge is required by law to report any

allegations of patient abuse as soon as it learns of them. See

Me. Rev. Stat. Ann. tit. 22, § 3477(1).

Theriault worked at RiverRidge alongside Cheyenne

Wagner, who was both a CNA and a certified residential medication

assistant. On November 11, 2014, Wagner approached Elizabeth

Moore, the director of human resources at RiverRidge, to complain

about Theriault peering into Wagner's purse and asking what

medications she was taking. Wagner also lamented that Theriault

had engaged in harassing behavior on Facebook. As a result of

Wagner's complaint, Theriault was reassigned to a different unit

so that the two women would not have to work together.

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 Six days later, Theriault asked Moore why her work

schedule had been changed. Moore did not mention Wagner's

complaints but simply told Theriault that employee schedules

varied based on staffing needs in particular areas. During this

conversation, Theriault griped about Wagner, expressing her view

that Wagner had been rude because Wagner had refused to discuss

personal problems while at work. Moore cautioned Theriault against

trying to engage in personal conversations in the workplace.

Theriault then approached Sarah Louise Corson, the

director of nursing at RiverRidge, to remonstrate about Wagner.

Corson responded that she had no time for a meeting and asked

Theriault to submit her grievances in writing.

Moore and Corson worried that Theriault's conflict with

Wagner might lead Wagner to leave RiverRidge. On November 20,

2014, Moore, Corson, and Robert Straznitskas (RiverRidge's

administrator) met with Wagner to discuss her concerns. Wagner

brought a handwritten note to the meeting, listing several

incidents of worrisome behavior on Theriault's part. For instance,

Wagner's note mentioned seeing Theriault grab a resident by the

front of his shirt and shake him. It also mentioned several

untoward comments allegedly made by Theriault. One time, Theriault

had asked another coworker for a gun "to handle" a difficult

resident. On another occasion, Theriault asked a pharmacy employee

if he had a baseball bat to use on a resident. Similarly, Theriault

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once told the family of a resident that she had "a noose and a

bucket" ready for his use. Wagner reported that this statement

was very upsetting to the family.

The management team (Corson, Moore, and Straznitskas)

found Wagner's account troubling and thought that the incident in

which Theriault was said to have shaken a resident might well

amount to patient abuse.1 As required by RiverRidge policy, Corson

reported the incident to DHHS, and Theriault was immediately

suspended pending an investigation. In addition, Corson scheduled

a meeting with Theriault for the next day to discuss the insights

furnished by Wagner. According to Theriault, she was not told of

the allegations against her and assumed that she would be meeting

to discuss her grievances against Wagner.

When she showed up for the scheduled meeting, Theriault

brought with her a written summary of her concerns regarding

Wagner's workplace behavior. The summary described several

episodes in which Wagner supposedly was rude to Theriault,

including once when Theriault asked if "anything was going on that

I should know about" to which Wagner responded "no not really" in

a "very rude[]" manner. Theriault's summary also complained that,

as Wagner "walked by [Theriault,] she turned away and stuck her

1 In Maine, patient "abuse" is defined as "the infliction of
injury . . . or cruel punishment that causes or is likely to cause
physical harm or pain or mental anguish." Me. Rev. Stat. Ann.
tit. 22, § 3472(1).

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nose up in the air." Later that same evening, Wagner responded

rudely when Theriault asked her if she was going on a break. After

Wagner returned in about twenty minutes, Theriault thought that

she was in a much more pleasant mood.2

Theriault also wrote that she had observed Wagner

texting on her cell phone "many times" while distributing

medications. Texting while distributing medications is (for

obvious reasons) considered unsafe and is prohibited by RiverRidge

policies.

Corson, Straznitskas, and a Genesis executive were in

attendance at the November 21 meeting. They perused Theriault's

written summary, but quickly turned to the allegations that had

earlier been leveled against her. Theriault acknowledged that she

may have made the three statements attributed to her by Wagner,

but insisted that they were made in jest. With respect to the

claim that she had shaken a resident, she conceded that she might

have grabbed him by the front of his shirt but only to prevent him

from falling.

Moore and Corson investigated the allegation that

Theriault had shaken the resident. They interviewed the resident

himself (who has a serious brain injury and memory loss) as well

2 Theriault now claims that this behavior led her to suspect
that Wagner was abusing drugs. Such a claim, however, comes as a
bolt from the blue: Theriault never mentioned such a suspicion to
management at any time during her tenure at RiverRidge.

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as his roommates, but unearthed no corroboration. They also

interviewed Rosa Vasquez (a CNA), who stated that she had seen

Theriault grab the resident by the shirt and shake him during a

moment of frustration while moving the resident into his

wheelchair. Vasquez intervened, told Theriault to take a break,

and completed the transfer. She did not report the incident

contemporaneously, but told Wagner about it at a later date.

Moore and Corson found Vasquez's account to be credible

and concluded that Theriault had grabbed the resident in a "non-

clinical manner." They also concluded that she had made the three

highly inappropriate statements attributed to her by Wagner.

Citing these four findings, Moore asked the company's regional

headquarters for permission to fire Theriault. That permission

was forthcoming, and Theriault was terminated on November 25, 2014.

The DHHS subsequently conducted its own investigation into the

shaking incident and determined that no patient abuse had occurred.

Theriault did not go quietly into this bleak night.

Asserting that her dismissal was in retaliation for her complaints

against Wagner, she filed a claim with the Maine Human Rights

Commission and received a right-to-sue letter. See Me. Rev. Stat.

Ann. tit. 5, § 4612. She then proceeded to invoke diversity

jurisdiction, see 28 U.S.C. § 1332(a), and sued Genesis in Maine's

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federal district court.3 Her complaint alleged that Genesis had

flouted the Maine Whistleblower Protection Act (WPA), Me. Rev.

Stat. Ann. tit. 26, § 833, and had defamed her. Following

extensive pretrial discovery, Genesis moved for summary judgment.

See Fed. R. Civ. P. 56(a). The district court determined that

Theriault had failed to make out genuine issues of material fact

sufficient to bring either of her causes of action to trial. See

Theriault, 2017 WL 1403162 at *9, *10.

This timely appeal ensued. In it, Theriault challenges

only the adverse judgment on her WPA claim.

II. ANALYSIS

"The role of summary judgment is to pierce the pleadings"

and probe the proof to ascertain whether a need for trial exists.

Kearney v. Town of Wareham, 316 F.3d 18, 21 (1st Cir. 2002). Our

review of the district court's entry of summary judgment is

plenary, and we must take the facts in the light most hospitable

to the nonmoving party, "indulging all reasonable inferences in

that party's favor." Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st

Cir. 1990). Summary judgment is appropriate when the evidence of

record "show[s] that there is no genuine issue as to any material

3Although Genesis is the sole defendant named in this action,
it has not questioned Theriault's allegation that it should be
treated as her employer in connection with her WPA claim.

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fact and that the moving party is entitled to judgment as a matter

of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

A swing of the summary judgment axe can be averted if

the nonmoving party adduces competent evidence demonstrating the

existence of a genuine dispute about a material fact. See Murray

v. Kindred Nursing Ctrs. W. LLC, 789 F.3d 20, 25 (1st Cir. 2015).

"Such evidence must be sufficiently probative that, if it is

credited, a factfinder could resolve the case in favor of the

nonmovant." Id. An inquiring court is not obliged either "to

draw unreasonable inferences or credit bald assertions [or] empty

conclusions." Cabán Hernández v. Philip Morris USA, Inc., 486

F.3d 1, 8 (1st Cir. 2007); see Medina-Munoz v. R.J. Reynolds

Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

With this rudimentary backdrop in place, we turn first

to the analytic framework that governs the analysis of Theriault's

WPA retaliation claim. We then consider the merits.

A. The Analytic Framework.

Sitting in diversity jurisdiction, a district court is

obliged to apply state substantive law and federal procedural law.

See Gasperini, 518 U.S. at 427. In this case, the parties agree

that Maine law supplies the substantive rules of decision.

The WPA prohibits retaliation against an employee who

makes a "good-faith report of . . . 'a condition or practice that

would put at risk the health or safety of' any person." Murray,

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789 F.3d at 25 (quoting Me. Rev. Stat. Ann. tit. 26, § 833(1)(B)).

Maine law confers a private right of action for a violation of

this statutory imperative. See id. To prevail on a WPA claim,

the plaintiff must demonstrate 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).

In the case at hand, the first two of these predicate

elements are not in dispute. Theriault's complaint that Wagner

was texting while distributing medications is plainly protected

activity in the form of a report about a "practice that would put

at risk the health or safety" of the residents, Me. Rev. Stat.

Ann. tit. 26, § 833(1)(B), and Theriault's ouster was unarguably

an adverse employment action. The battleground, then, is the third

element, that is, whether Theriault sufficiently demonstrated the

requisite causal nexus between her protected activity and her

discharge. To demonstrate a causal link sufficient to defeat a

summary judgment motion, Theriault must make a sufficient

evidentiary showing that her protected activity (her alleged

whistleblowing) "was a substantial, even though perhaps not the

only, factor motivating [her] dismissal." Caruso v. Jackson Lab.,

98 A.3d 221, 226 (Me. 2014) (quoting Walsh, 28 A.3d at 615). Put

another way, Theriault must make a sufficient evidentiary showing

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that her protected whistleblowing activity was a but-for cause of

her dismissal. See id. at 227.

The parties hotly dispute what evidence of causation

should have been considered at the summary judgment stage.

Theriault argues that under Maine law a court, when faced with an

employer's summary judgment motion in a WPA retaliation case, may

consider only the plaintiff's evidence. Genesis takes a contrary

position, contending that the court was obliged to consider all of

the evidence (including its evidence about its reasons for

terminating Theriault) when determining whether to grant summary

judgment. Because the district court rejected Theriault's

understanding of Maine law and instead considered all of the

evidence, Theriault exhorts us to find that the court applied (at

least functionally) the McDonnell Douglas framework and thus

erred. On its own terms, Theriault's argument fails.4

4
As framed, Theriault's argument presumes that the choice of
what framework should be used to analyze a WPA retaliation claim
at the summary judgment stage is a matter of state substantive
law, not a matter of federal procedure. While it can be argued
that the McDonnell Douglas framework is procedural, see, e.g.,
Buytendorp v. Extendicare Health Servs., Inc., 498 F.3d 826, 834
(8th Cir. 2007); Snead v. Metro Prop. & Cas. Ins. Co., 237 F.3d
1080, 1094 (9th Cir. 2001), and therefore should have been invoked
by the district court when adjudicating the summary judgment
motion, Theriault has not advocated that proposition.
Consequently, she has waived any such contention, see United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990), and we express no
opinion as to whether the McDonnell Douglas framework should be
regarded as substantive or procedural.

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 Some background is helpful to put Theriault's argument

into perspective. As a general rule, federal courts employ the

McDonnell Douglas burden-shifting framework when analyzing

employment retaliation claims at the summary judgment stage. Under

that framework, the burden is on the plaintiff to make out a "prima

facie case" which requires only "the production of admissible

evidence, which, if uncontradicted, would justify a legal

conclusion of [retaliation]." Sanchez v. P.R. Oil Co., 37 F.3d

712, 719 (1st Cir. 1994). The burden of production then shifts to

the defendant to identify a legitimate reason for the adverse

employment action. See Murray, 789 F.3d at 25. Once this minimal

burden of production is satisfied, the burden reverts to the

plaintiff to show that the proffered reason was not the real reason

for the adverse employment action but, rather, was a pretext for

retaliation. See id.

In Brady v. Cumberland County, the Law Court shelved the

tripartite McDonnell Douglas burden-shifting framework in favor of

a singular inquiry: "whether the record as a whole would allow a

jury to reasonably conclude that the adverse employment action was

motivated at least in part by retaliatory intent." 126 A.3d 1145,

1158 (Me. 2015). When answering this question, Brady directs a

trial court to collapse the more intricate McDonnell Douglas

framework and, in a seamless inquiry, "recognize any evidence that

the employer had a lawful reason for the adverse action taken

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against the employee, and any evidence that the proffered reason

is merely a pretext." Id. at 1157-58. Still, the Law Court did

not regard this change in focus as a sea change in the law. Rather,

it anticipated that "the evidence that would be presented in the

second and third stages of the McDonnell Douglas framework will

still fall within the analytical framework applicable to summary

judgment motions in WPA retaliation cases because that evidence

still bears on the allegation of causation." Id. at 1158.

The upshot is that when the Brady court shelved the

McDonnell Douglas framework, it perforce jettisoned McDonnell

Douglas's prima facie case requirement, which it criticized as

"limited in . . . effect" and "fall[ing] short of [requiring] a

body of evidence that would be sufficient to permit a finder of

fact to conclude that the employer acted unlawfully." Id. at 1155.

In its place, the court established a new, Maine-specific

retaliation paradigm. Under this Maine-specific paradigm, a

plaintiff must present evidence of causation up front, not wait

for the defendant to introduce evidence of its legitimate reason

for terminating her. See id. at 1157. Only if the plaintiff in

a WPA retaliation case satisfies this new paradigm will she be

able to survive the defendant's motion for summary judgment. See

Cormier v. Genesis Healthcare LLC, 129 A.3d 944, 948 n.2 (Me.

2015).

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 The Law Court has described this Maine-specific

retaliation paradigm as embodying a "prima facie case"

requirement. See, e.g., id. It has made pellucid, though, that

"a 'prima facie case' within the meaning of the McDonnell Douglas

analysis is different" than the "prima facie case" contemplated

under the new paradigm that it has fashioned for adjudicating WPA

retaliation cases. Brady, 126 A.3d at 1155, 1158; see Cormier,

129 A.3d at 948 n.2 (explaining that "the term 'prima facie' merely

describes the evidence that 'is sufficient to withstand a motion

for summary judgment' generally, rather than a specialized

categorization of evidence that does not directly track the three

elements of the claim" (quoting Brady, 126 A.3d 1155)).5 In the

interest of clarity, we refer throughout to the framework

articulated by Brady and its progeny as the "Maine-specific

retaliation paradigm," not as a "prima facie case" requirement.

Notwithstanding Maine's new paradigm, all roads lead to

Rome: in the final analysis, the Maine-specific retaliation

paradigm obligates the plaintiff to adduce precisely the same

quantum of proof that she would have had to adduce to defeat

summary judgment under the McDonnell Douglas framework. See Brady,

5
There is a puzzling footnote in Carnicella v. Mercy
Hospital, 168 A.3d 768, 772 n.2 (Me. 2017), which refers to the
"first of the three steps" in the analytic framework. But
Carnicella is not itself a WPA retaliation case, and in all events
the footnote is dictum. Thus, we do not attempt to decipher the
meaning of the Carnicella footnote.

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126 A.3d at 1157-58. The proof is simply arranged in a different

way. This seems to be what the Law Court meant when it stated

that "[e]limination of the burden-shifting process does not limit

the scope of the evidence presented in summary judgment motion

practice in WPA retaliation cases, when compared to the evidence

that would be presented under the McDonnell Douglas model." Id.

at 1157. It follows that, "at the summary judgment stage in WPA

retaliation cases, the parties are held to the same standard as in

all other cases." Id. at 1158.

To be sure, Theriault resists this conclusion. She

interprets Brady to mean that a court, faced with a defendant's

summary judgment motion in a WPA retaliation case, may consider

only the plaintiff's evidence. Theriault's interpretation is

incorrect: Brady's new approach simply means that, at summary

judgment, "the parties are entitled to present evidence of the

reasons for the employer's action, but without any need to follow

the McDonnell Douglas burden-shifting structure." Id.

We now come full circle. Once Brady's Maine-specific

retaliation paradigm is properly understood, it becomes readily

evident that the court below grasped the essence of Brady and was

faithful to it, explicitly eschewing any reliance on the McDonnell

Douglas framework. See Theriault, 2017 WL 1403162, at *7 n.14.

Consistent with Brady, the court focused on whether the record,

construed in the light most favorable to Theriault, sufficed to

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support an inference "that the adverse employment action was

motivated at least in part by protected activity." Brady, 126

A.3d at 1158. Under Brady, this was the decisive question.

Consequently, we reject Theriault's claim that the district court

applied the wrong analytic model and proceed to the substance of

the district court's determination.

B. The Merits.

Having determined that the court below did not employ

the McDonnell Douglas framework but, rather, employed the analytic

framework prescribed by the Law Court for use in WPA retaliation

cases, we turn to the merits of its summary judgment ruling.

Following an appraisal of the record as a whole, we agree with the

district court that Theriault has failed to adduce sufficient

evidence to make out a genuine issue of material fact on causation.

We explain briefly.

Theriault claims, in essence, that during the course of

RiverRidge's investigation into her alleged misconduct, its

motivations changed from legitimate to retaliatory when she

complained about Wagner's texting. Building on this foundation,

she says that this retaliatory motive prompted her firing. This

finding of causation, Theriault suggests, can be supported in three

ways. We examine her three suggestions sequentially.

To begin, Theriault argues that the close temporal

relationship between her November 21 "texting" complaint against

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Wagner and her firing a few days later is enough, in and of itself,

to warrant an inference of causation.6 The case law repudiates

this argument: while Theriault's dismissal followed closely on the

heels of her protected activity, "that fact, standing alone, is

not enough to trigger an inference of causation" that will

withstand summary judgment. Kearney, 316 F.3d at 23. Though

temporal proximity may be sufficient to satisfy the first element

of the McDonnell Douglas framework, see Murray, 789 F.3d at 25

(citing Stanley v. Hancock Cty. Comm'rs, 846 A.2d 169, 175 (Me.

2004)), it is not sufficient, by itself, to forge a causal link

strong enough to create an inference of causation and thus satisfy

Brady's new, Maine-specific retaliation paradigm in the face of an

employer's asserted legitimate non-retaliatory reason for the

adverse employment action.

Theriault disagrees, relying principally on the Law

Court's decision in Cormier. That reliance is mislaid. In

Cormier, the Law Court determined that temporal proximity between

the protected activity and the adverse employment action could

create a triable issue of fact as to whether Cormier's employer

6Here, the temporal relationship upon which Theriault's
argument depends is undermined to some extent by the fact that
RiverRidge suspended Theriault for her reported actions and
comments before Theriault made any complaint about Wagner's
alleged texting. For summary judgment purposes, however, we assume
that the relevant temporal relationship was between Theriault's
protected activity and her firing without regard to the timing of
her suspension.

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knew about her protected activity. See Cormier, 129 A.3d at 951.

The Law Court went on to say, however, that the "combined effect"

of temporal proximity and other evidence — not temporal proximity

only — could give rise to an inference of causation sufficient to

withstand summary judgment. Id.

This holding is consistent with earlier Maine cases.

See, e.g., Stanley, 864 A.2d at 174-77 (upholding summary judgment

for employer even though employee was terminated "a short time

after" making his complaint); Doyle v. Dept. of Human Servs., 824

A.2d 48, 56 (Me. 2003) (upholding summary judgment for employer

notwithstanding "close proximity" between protected activity and

adverse employment action); DiCentes v. Michaud, 719 A.2d 509,

514-15 (Me. 1998) (acknowledging that close temporal proximity

between protected activity and adverse employment action does not

end the matter). It is also consistent with federal case law.

See, e.g., Murray, 789 F.3d at 26; Mariani-Colon v. Dep't of

Homeland Sec., 511 F.3d 216, 224 (1st Cir. 2007); Kearney, 316

F.3d at 23. Finally, it is consistent with the way in which WPA

retaliation cases are litigated under Maine law: on a "summary

judgment motion — just as at trial — the employee must not only

produce evidence that she engaged in protected activity and later

suffered an adverse employment action, but in the first instance

she must also produce some evidence of the employer's unlawful

motivation." Brady, 126 A.3d at 1156. If the employer puts forth

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evidence of a legitimate non-retaliatory reason, the employee must

adduce some evidence that the employer's proffered reason is

pretextual.

Next, Theriault argues that there was evidence in the

record from which a jury could find her employer's stated reasons

for firing her pretextual. This argument amounts to nothing more

than a post-hoc rationalization.

A plaintiff may show pretext by establishing

"weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate reasons" for

the challenged employment action. Cookson v. Brewer Sch Dept.,

974 A.2d 276, 282 (Me. 2009) (quoting Billings v. Town of Grafton,

515 F.3d 39, 55-56 (1st Cir. 2008)); see Trott v. H.D. Goodall

Hosp., 66 A.3d 7, 15 (Me. 2013). Here, Theriault asserts that

even if she grabbed the resident by the front of his shirt, the

incident would not have amounted to abuse and, thus, could not

have justified RiverRidge's decision to cashier her. She reasons

that because a trier of fact could conclude that the incident did

not amount to abuse, the trier likewise could conclude that

RiverRidge's claim that it dismissed her based on the incident was

pretextual.

Leaving to one side the fact that the "shaking" incident

was not the sole reason for Theriault's dismissal, there is

something to be said for Theriault's premise. As Theriault

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suggests, the evidence may be such as to create a factual dispute

about whether patient abuse actually occurred. But the conclusion

that Theriault would have us draw from this premise — that a

finding of pretext would likewise be permissible — does not follow.

"[E]vidence of a decisionmaker's mistaken judgment is not

dispositive of the question of pretext unless that evidence would

permit the factfinder to conclude that the stated

nondiscriminatory justification for the adverse employment action

was either knowingly false or made in bad faith." Murray, 789

F.3d at 27; see Fuhrmann v. Staples Office Superstore E., 58 A.3d

1083, 1093 (Me. 2012). There is nothing in the summary judgment

record that would allow a factfinder to conclude that the decision

to fire Theriault for perceived misconduct was either knowingly

false or undertaken in bad faith. Theriault admits that she

grabbed the resident by the shirt (although she claims that she

did so to prevent him from falling). Other witnesses, though,

reported that it appeared to them that Theriault had grown

frustrated with the resident and had grabbed his shirt to shake

him. There is not a shred of evidence that would support an

inference that RiverRidge acted inappropriately in resolving this

conflict by crediting the account of a neutral witness (Vasquez).7

7
Indeed, Theriault herself does not contend that Vasquez
lied. She only contends that Vasquez mis-judged the intent behind
Theriault's actions.

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Theriault cannot make out a genuine issue of material fact with

respect to pretext simply by challenging the "objective veracity"

of an employer's conclusions. Morgan v. Mass. Gen. Hosp., 901

F.2d 186, 191 (1st Cir. 1990).

It is true, of course, that DHHS eventually concluded

that no patient abuse occurred. It does not follow, though, that

RiverRidge acted in bad faith in concluding that Theriault's

actions were inappropriate. Theriault has identified no facts

that contradict Genesis's basic defense: that RiverRidge

administrators conducted an investigation into the allegations of

misconduct made against Theriault, found those allegations to be

substantiated in material part, and based the decision to terminate

her employment on that finding. See Kearney, 316 F.3d at 23

(attributing decretory significance to employee's failure to

discredit employer's investigative process).

If more were needed — and we doubt that it is — Moore's

request for authorization to discharge Theriault also cited

Theriault's inappropriate comments, which threatened harm to

residents. The comments themselves are jarring. Theriault once

asked a nurse for a gun "to handle" a resident; on another

occasion, she asked for a baseball bat to use on a different

resident; and on yet a third occasion, she told a resident's family

that she had a "noose and a bucket" ready for his use. Theriault

attempts to minimize these statements by saying that they were

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made in jest and, thus, could not have grounded a good-faith

decision to fire her.

Theriault's appraisal is incorrect. It is common ground

that inappropriate statements may constitute a basis on which to

terminate an employee even if supposedly made in jest. See Pina

v. Children's Place, 740 F.3d 785, 797 (1st Cir. 2014). Words can

be hurtful, see, e.g., Franchina v. City of Providence, 881 F.3d

32, 37 (1st Cir. 2018), and a speaker's demurrer that she was "just

kidding" does not lessen the harm that inappropriate statements

may have caused, see Pina, 740 F.3d at 797. Here, for example,

Wagner reported that Theriault's "noose and a bucket" statement,

when uttered, was very upsetting to the resident's family.

Although Theriault may have thought these comments humorous, she

has adduced no evidence to suggest that RiverRidge acted in bad

faith when it found them far out of line and determined that the

comments, together with the shaking incident, warranted

Theriault's dismissal.

Theriault's final argument rests on a claim of disparate

treatment: she posits that the fact that she was terminated and

Wagner was not is sufficient to ground an inference of pretext.

In support, she cites cases holding that pretext may be inferred

from proof that similarly situated employees were treated

differently. See, e.g., Murray, 789 F.3d at 27; Conward v.

Cambridge Sch. Comm., 171 F.3d 12, 20 (1st Cir. 1999). The rub,

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however, is that a jury could not find Theriault and Wagner to

have been similarly situated.

The relevant question is whether a reasonable person,

looking objectively at the two incidents, would think them roughly

equivalent and the two employees similarly situated. See Ray v.

Ropes & Gray LLP, 799 F.3d 99, 114 (1st Cir. 2015). Wagner was

accused of texting on her cell phone while distributing

medications; Theriault was accused of shaking a resident and making

inappropriate comments about inflicting harm on residents. The

allegations against Wagner were made by Theriault, denied by

Wagner, not corroborated by any third party, investigated by the

employer, and found to be apocryphal. By contrast, the allegations

against Theriault, though originally made by Wagner, were

confirmed by the employer's investigation, largely admitted by

Theriault, and corroborated in part by a neutral party (Vasquez).

Comparing these two situations is like comparing eels to elephants

— there are many more differences than similarities. See Morgan,

901 F.2d at 191. Thus, the fact that Wagner's employment continued

while Theriault's did not does not aid Theriault's quest to prove

that RiverRidge's stated reasons for her termination were

pretextual.

To sum up, Theriault has attempted to discredit her

employer's stated reasons for terminating her, but she has not

succeeded in impugning them. "Casting aspersions is not enough."

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Murray, 789 F.3d at 27. As both the Law Court and this court

agree, "an employee's assertion of . . . animus on the part of an

employer will not survive summary judgment if she or he relies on

mere 'conclusory allegations, improbable inferences, and

unsupported speculation.'" Cookson, 974 A.2d at 283 (quoting

Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218

F.3d 1, 5 (1st Cir. 2000)). RiverRidge's reasons have remained

plausible, consistent, and coherent. The mere fact that Theriault

made a complaint about Wagner shortly before Theriault's ouster

does not shield her from the consequences of her own actions. See

Blackie v. Maine, 75 F.3d 716, 723-24 (1st Cir. 1996) (explaining

that "by engaging in a protected activity, an employee does not

acquire immunity from the same risks that confront virtually every

other employee every day in every work place"). On this record,

Theriault has pointed to no significantly probative evidence

adequate to support a finding that a causal connection existed

between her protected activity and her dismissal.

III. CONCLUSION

We summarize succinctly. The district court faithfully

followed the teachings of the Law Court, applied that court's new,

Maine-specific retaliation paradigm to Theriault's WPA retaliation

claim, and granted summary judgment in favor of Genesis. Bearing

in mind that the issue of whether the McDonnell Douglas framework

applies to a WPA retaliation claim in a diversity case is not

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before us, see supra note 4, we discern no error either in the

district court's analysis or in its evaluation of the summary

judgment record.

We need go no further. The entry of summary judgment in

favor of Genesis is

Affirmed.

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