7/ cc i 
New York State Boordfor Professional Medical Conduct
4?33 River Street, Suite 3113 - 't't'ov. New York 0130?3299 0 (5M) 

 

Richard F. Domes. NJ). Hendrick A. Sears. ALB.

'nmmissr'oner 'tmtr

Department ?armeta Tot-rem"
James W1 (True. Jr. lice ("tinn-

Executive {Jenna JD.
Keith IV. Sen-tit. Director [iterative Secretory

fitting tltertr'cut t' 

April I4, EDIO
CERTIFIED MAIL-RE TURN RECEIPT REQUESTED

Jaroslav P. Stulc. MI).

Re: License No. 1
Dear Dr. Stulc:

Enclosed is a copy ofOrdcr BPMC #10451 ofthc New York State Board for Professional
Medical Conduct. This order and any penalty provided therein goes into effect April 2 2010.

If the penalty imposed by this Order is a surrender, revocation or suspension, you are
required to deliver your license and registration within ?ve days of receipt of this Order to:
Of?ce ofl?rofessional Medical Conduct, c/o Physician Monitoring Unit, New York State
Department of Health. 433 River Street, Suite 303, Troy, NY [2180-2299.

If the documentts) are lost, misplaced or destroyed, you are required to submit to this of?ce an

af?davit to that effect. Enclosed for your convenience is an af?davit. Please complete and sign the
affidavit before a notary public and return it to the Of?ce of Professional Medical Conduct.

Sincerely.

Katherine A. Hawkins, M.D., JD.
Executive Secretary
Board for Professional Medical Conduct

Enclosure

 

STATE OF NEW YORK DEPARTMENT OF HEALTH
STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT

 

IN THE MATTER SURRENDER
OF ORDER
JAROSLAV PETER STULC, M.D. BPMC No . 10?61

00-09-06-3972-A

 

Upon the application of JAROSLAV PETER STULC, M.D., (Respondent), to Surrender
his license to practice medicine in the State of New York, which is made a part of this Surrender
Order, it is

ORDERED, that the Surrender, and its terms, are adopted and it is further
ORDERED, that Respondent's name be stricken from the roster of physicians in the
State of New York; it is further

ORDERED. that this Surrender Order shall be effective upon issuance by the Board.
either by mailing of a copy of this Surrender Order, either by ?rst class mail to Respondent at
the address in the attached Surrender of License or by certi?ed mail to Respondent's attorney. or

upon facsimile transmission to Respondent or Respondent?s attorney, whichever is ?rst.

SO ORDERED.



 

DATE: 7?1 3 I 
KENDRICK A. SEARS, M. o.
Chair

State Board for Professional Medical Conduct

 

 

 

STATE OF NEW YORK DEPARTMENT OF HEALTH
STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT

 

IN THE MATTER SURRENDER
0F OF
JAROSLAV PETER MD. LICENSE



 

JAROSLAV PETER STULC, M.D., (Respondent). representing that all of the following

statements are true, deposes and says:

That on or about April 9, 1984. I was licensed to practice medicine in the State of New

York and issued license number 157911 by the New York State Education Department.
My current address is

i understand that the New York State Board for Professional Medical Conduct has

charged me with two (2) Speci?cations of professional misconduct.

A copy of the Statement of Charges. marl-ted as Exhibit  is attached to and part of

this Surrender of License.

I am applying to the State Board for Professional Medical Conduct for permission to
surrender my license to practice medicine in the State of New York on the grounds that i do not

contest the two (2) Speci?cations.

I ask the Board to accept the surrender of my license, and I agree to be bound by all of

the terms set forth in attached Exhibit 

I understand that if the Board does not accept my Surrender of License none of its terms
shall bind me or constitute an admission of any of the acts of alleged misconduct; this Surrender

of License shall not be used against me in any way and shall be kept in strict con?dence; and

 

 

 

the Board's denial shall be without prejudice to the pending disciplinary proceeding and the

Board's final determination pursuant to the Public Health Law.

i agree that. if the Board accepts the surrender of my license, the Chair of the Board
shall issue a Surrender Order in accordance with its terms. agree that the Surrender Order
shall take effect upon its issuance by the Board, either by mailing of a copy of the Surrender
Order by first class mail to me at the address in this Surrender of License, or to my attorney by
certified mail. or upon facsimile transmission to me or my attorney, whichever is first. The
Surrender Order, this Surrender of License, and all attached Exhibits shall be public documents,
with only patient identities, if any, redacted. As public documents, they may be posted on the

Department's website.

ask the Board to accept this Surrender of License, which i submit of my own free will
and not under duress, compulsion or restraint. in consideration of the value to me of the
Board's acceptance of this Surrender of License, allowing me to resolve this matter without the
various risks and burdens of a hearing on the merits, knowingly waive my right to contest the
Surrender Order for which I apply, whether administratively orjudicially, and I agree to be bound

by the Surrender Order.

I understand and agree that the attorney for the Department of Health, the Director of the
Of?ce of Professional Medical Conduct, and the Chair of the State Board for Professional
Medical Conduct each retain complete discretion either to enter into the proposed Surrender of
License and Surrender Order, or to decline to do so. 1 further understand and agree that no

prior or separate written or oral communication can limit that discretion.

Beam. 2010  -. -
JARO PETER STULC, M.D.

Re ondent

 

 

 

 

The undersigned agree to Respondent's attached Surrender of License and to its
proposed penalty, terms and conditions.


Date:  .2010 

ROBERT I3on 

Associate Counsel
Bureau of Professional Medical Conduct

Date: Zr .2010

 

w. SERyis? 
Director, Of?ce of Professional
Medical Conduct

 

 

 

 

 

 

 

 

STATE OF NEW YORK DEPARTMENT OF HEALTH
STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT

 

IN THE MATTER STATEMENT
OF 0F
JAROSLAV PETER STULC, MD. CHARGES

CO-09-06-3972-A

 

JAROSLAV PETER STULC, M.D., Respondent, was authorized to practice medicine in
New York state on April 9, 1984. by the issuance of license number 157911 by the New York
State Education Department.

 

FACTUAL ALLEGATIONS

A. On or about June 9. 2009. the Maine State Board of Licensure in Medicine
(hereinafter "Maine Board"), by a Decision and Order (hereinafter "Maine Order").
IMMEDIATELY REVOKED Respondent's license to practice medicine. based on fraud or deceit
in obtaining a license. incompetence. and unprofessional conduct.

B. The conduct resulting in the Maine Board disciplinary action against Respondent
would constitute misconduct under the laws of New York State, pursuant to the following
sections of New York State law:

1 New York Education Law ?6530( 1) (obtaining the license fraudulently);

2. New York Education Law (practicing the profession fraudulently);

3 New York Education Law ?6530(20} (moral un?tness);

4. New York Education Law ?653D(2?l) (willfully making or ?ling a false report
required by law or by the department of health or the education department); andfor

5. New York Education Law ?6530(31) (willfully harassing. abusing or intimidating a
patient).

 

 

SPECIFICATIONS
FIRST SPECIFICATION

Respondent violated New York State Education Law ?6530(9)(b) having been found
guilty of improper professional practice or professional misconduct by a duty authorized
professional disciplinary agency of another state. where the conduct upon which the finding was
based would. if committed in New York state, constitute professional misconduct under the laws
New York state. in that Petitioner charges:

1. The facts in Paragraphs A andior B.

SECOND SPECIFICATION

Respondent violated New York State Education Law ?5530(9)(d) by having his license
to practice medicine revoked andior having other discipline action taken by a duly authorized
professional disciplinary agency of another state. where the conduct resulting in the revocation
andfor other disciplinary action would. if committed in New York state. constitute professional
misconduct under the laws of New York state. in that Petitioner charges:

2. The facts in Paragraphs A andior B.

DATED: mudg? 7T 2010 r- 

Albany. New York PETER o. 
Deputy Counsel
Bureau of Professional Medical Conduct

 

 

EXHIBIT 

REQUIREMENTS FOR CLOSING A MEDICAL PRACTICE FOLLOWING A
REVOCATION, SURRENDER OR SUSPENSION (ofsix months or more)
OF A MEDICAL LICENSE

Respondent shall immediately cease and desist from engaging in the practice of
medicine (in New York State) in accordance with the terms of the Order. In addition.
Respondent shall refrain from providing an opinion as to professional practice or its
application and from representing himself as being eligible to practice medicine.

Respondent shall have delivered, to OPMC at Hedley Park Place, 433 River Street Suite
303. Troy, NY 12180-2299. Respondent's original license to practice medicine in New
York State and current biennial registration within ?ve (5) days of the effective date of
the Order.

Respondent shall within ?fteen (15) days of the Order, notify all patients of the cessation
of his medical practice and will refer all patients to another licensed practicing physician
for their continued care. as appropriate.

Respondent shall make arrangements for the transfer and maintenance of the medical
records of his patients. Within thirty days of the effective date of the Order, Respondent
shall notify 0PMC of these arrangements including the appropriate and acceptable

service rendered to a patient or. in the case of a minor. for at least six years after the last
date of service or three years after the patient reaches the age of majority, whichever
time period is longer. Records shall be maintained in a safe and secure place that is
reasonably accessible to former patients. The arrangements shall include provisions to
ensUre that the information on the record is kept con?dential and made available only to
authorized persons. When a patient andror his/her authorized representative requests a
copy of the patient's medical record, or requests that the original medical record be
forwarded to another health care provider, a copy of the record shall be 
provided or forwarded at a reasonable cost to the patient (not to exceed seventy-?ve
cents per page.) Radiographic, sonographic. and like materials shall be provided at
cost. A quali?ed person shall not be denied access to patient information solely because
of his/her inability to pay.

Respondent shall within ?fteen (15) days of the Order's effective date, return any unused
New York State of?cial prescription forms to the Bureau of Narcotic Enforcement, New
York State Department of Health at 433 River Street, Suite 303, Troy. NY 12180-2299.
Respondent shall cause all prescription pads bearing hislher name to be destroyed. If
no other licensee is providing services at Respondent's practice location, all medications
shall be properly disposed of.

 

 

 

10.

Respondent shall not share, occupy or use of?ce space in which another licensee
provides health care services. Respondent shall cause all signs to be removed within
fifteen (15} days and stop all advertisements, professional listings whether in telephone
directories, on the internet or otherwise, professional stationery or billings by which
hislher eligibility to practice is represented.

Respondent shall not charge. receive or share any fee or distribution of dividends for
professional services rendered (by Respondent or others) while barred from engaging in
the practice of medicine. Respondent may be compensated for the reasonable value of
services lawfully rendered and disbursements incurred on a patient's behalf prior to the
effective date of this Order.

If Respondent is a shareholder in any professional service corporation organized to
engage in the practice of medicine and if Respondent's license is revoked, surrendered
or suspended for a term of six months or more under the terms of this Order.
Respondent shall divest himselfiherself of all ?nancial interest in the professional

Respondent is the sole shareholder in a professional services corporation, the
corporation must be dissolved or sold within ninety (90) days of the effective date of this
Order.

Failure to comply with the above directives may result in a civil penalty or further criminal
penalties as may be authorized pursuant to the law. Under Section 5512 of the
Education Law it is a Class Felony, punishable by imprisonment of up to 4 years, to
practice the profession of medicine when such professional license has been
suspended, revoked or annulled. Such punishment is in addition to the penalties for
professional misconduct set forth in Section 230-a of the Public Health Law, which
includes fines of up to $10,000 for each speci?cation of charges of which Respondent is
found guilty and may include revocation of a suspended license.

 

 

 

MAINE STATE BOARD OF LICENSURE IN MEDICINE

  areslav P. Stale, MD.- - 
Licensure Disciplinary Action DECISION AND ORDER
Complaints CR-08-030 and CR08-052 

I. PROCEDURAL HISTORY

Per-sum to the authority found in 32 M.R.S. Sec. 3-282-A, et seq, 5 MRS. Sec. 9051, e:
seq. and 10 MRS. Sec. 8001, et seq, the Board of Licensure in Medicine" (Board) met in public
session at the Board?s of?ces located in Augusta, Maine on May" 12, 2009 at 1:00 pm. The purpose
of the meeting was to conduct a consolidated adjudicatory hearing to decide Whether Jaroslav P.
Stulo, MD. violated Board statutes and Rules as alleged in the Notice of Hearing. A quorum of the
Board was in attendance during all stages of the proceedings. Participating and voting Board
members were Chairman Sheridan R. Oldh?arri, M.D., Bettsanne Holmes, (public member), Gary R.
Hatfield, M-.D., Cheryl Clukey (public member), David Nyberg, Ph. D., (public member), 
K. Onion, M.D., Maroulla S. Gleattm, M.D., and David H. Dumont, MD. Dennis Smith, Aes't.
Attorney General, presented the State's case. Dr. Stale appeared and was not represented by an
attorriey? although he had been previously advised of his right to retain counsel. James E. Smith,
Esq. served as Presiding Of?cer. 

The Board convened the hearing and first determined that there were no con?icts of interest
or bias on behalf of. any Board member. The Boa-rd then took: administrative notice of its statutes
and Rules. State?s exhibits 1-20 and Respondent?s exhibits l~4 were admitted into the Record.
Subsequent to the parties? opening statements, the taking of testimony, exhibits, and closing
arguments, the Board deliberated and made the following ?ndings of fact by a preponderance of

the credible evidence.

II. FINDINGS  1T .eC-o'mnlaint Gil-084.052

1. ar'o'sla'v P. Stale, M.D., was ?rst licensed as a physician in 1973. He became a surgeon and
eventually developed a specialty in surgical onCo?lOgy. Dr. Stulc was employed as a surgeon by the
Trover- FOundatiOn in 1.990,- with snrgical privileges at the Trover Feundation Regional Hospital in
Madison'yille, Kentucky. In 20.00, he becaine a solo practitioner- until 2007 when he departed from

Kentucky to establish a practice in Maine.

2. Orr-or about June 27, 2007, the Maine Board of Li'censure in Medicine received an application
from Dr. Stu'lc for a Permanent Maine medical license. On June 21, 2007,. Dr; Stulc executed an

af?davit as part of the application, which read in part:

I have carefully read. the questions in this application and have ansWered them

completely. Without reservations of any kind, and declare under penalties of perjury that my
answers and all statements made by me herein are true and correct. Sherild I fumis'h any
false i'nforlnatiOn in this .application,_l_ hereby agree that such act shalleonstitute grounds
for the denial, suspension or revocation of my license to practiCe medicine and surgery in
the State of Maine, or other discipline as the Board may determine.

3. On his application for a Permanent medical license, Dr. Stulc answered ?No? to the
following question: ?Have you EVER had your hospital, HMO, or other health care entity
privileges revoked, suspended, restricted, limited in any Way, or withdraWn involuntarily??

(emphasis added)

4. On or about August 20, 2007, While still in the process of obtaining information regarding Dr.
Stulc?s application for a Pennanent Maine medical license, the Board received an application from
him for an Emergency (100 day) medical license. Unlike a Permanent medical license, the Board

- may issue an Emergency medical license Without having all verifying background information
regarding the applicant. On August 18, 2007, Dr. Stulc executed an af?davit as part of that

application, which read in part:

I have carefully read the queStiOIls in this application and have answered them
Committee-awithout reset-attics?! 9f  kind. and declare under penal-ties of perjury
that-my answers  all Statements made by me herein are 'true'_- and_._eorrect, Should
I furnish any false information-TIEthisapplication shall
wietitutesr?wncis forth? denial? WSW-each or revocation Ofl'iseaseto practice
medicine and surgery in the State of Maine, or other discipline as the Board may
determine.

 

5. On the application for an Emergency mediCal license, Dr. Stul-?c answered ?No? to the
following question: ?Have you EVER had your hospital, HMO, or other health care entity
privileges revoked, suspended, restricted, limited in any way, or withdrawn involuntarily??

(emphasis added)

On August 20, 2007,- based upon Dr. Stulc?s representations on his application, the Board
staff issued Dr. Stulc an Emergency (100 day) medical liCense, which would not have been issued

without review by the entire Board if Dr. Stulc had answered ?Yes? to the above question.

7. On January 22, 2008, based upon Dr. Stulc?s representations on his application, the Board
staff issued Dr. Stulc a Permanent medical license, which would not have been issued

Without review by the entire Board if Dr. Stulc had answered ?Yes? to the above question.

8. On or about January 24, 2008, the Beard received inferniatio'n indicating that:

A. On May 20, 1996, Teresa Vincent, R.N., C.-N.O.R. of the Madisonville Health
Technology Center in Madisonville, Kentucky, sent a letter to Mohan Rao, M.D., of Trover Clinic
in Madisonville, Kentucky regarding inappropriate comments and actions allegedly attributed to
Dr. Stulc. The allegations involved three different surgical technology students, including: Student
#1 who complained that Dr. Stulc attempted to secure an Allis Clainp on the breast area of her
gown. Student #2 alleged that Dr. Stulc squirted saline from the Aspeto on the left breast area of
her gown. Student #3 Student complained that she accidentally brushed up against. Dr. Stulc during
a procedure. Dr. Stale stated, ?Are you playing with me.? The Student replied, ?No Sir, I. am not.?
Dr. Stulc replied,- ?Would you like to play with me.? The Student replied, ?No sir, but I will hold

this rake for you.? The rake was for retractiOn at the Operative site. The letter concluded by stating,

 would like to stress at this time the above incidents are just inappropriate. Attached is the
Kentucky Tech Sexual. Harassment Policy.?

B. On or about April 19, 2006., Dr. Stulc?s clinical privileges at Trover Foundation
Regional Hospital in Madisonville, Kentucky were renewed with the following

restrictions/limitations:

 

1. That he undergo a evaluation.

2. That failure to complete the evaluation or comply with. other recommendations of the

 

medical exec'utiVe committee would resultin the precautionary suspension of his ?medical staff
privileges.? A

3. That he comply with a performance improvement plan for one year with ?zero tolerance
for Validated behavioral The performance improvement plan required Dr. Stulc to:

a. ?Conduct himself in a profeSsiOnal manner at all times, ensuring appropriate
communicatiOri- and inter-actions With- patients, visitor-s, colleagues, and staff?

b. ?Be consistently available to hospital staff, colleagues, and for. patient interactions while
on call/on duty, and will respond in a timely and appropriate manner.?

0. ?Adhere to all safety standards and patient safety protocols.?

9. On or about February 27, 2007, Dr. Stulc received a letter from the Medical Executive
Committee of the Trover Foundation Regional Medical Center located in Mad-isonville, Kentucky,
which stated in part: ?The undersigned haVe received credible information that yen have violated
the terms of your Medical Staff Pl (Performance Improvement) Plan entered into March 13, 2006
by making. inapprOpriate, rude or offensive communications, behavior, or actions with any medical
or hospital staff member. Specifically, on February 24, 2007. .. you in an unprofessional manner,
loudly raised your voice (yelled) at a hospital nurse who had telephoned you for instructions
concerning pain medication administration to your patient. Violation of your Performance
Improvement Plan has been considered to be disruptive to the Orderly operations of the hospital.
Pursuant to the terms of said Performance Improvement Plan, any validated breech of expectatioiis,
actions, or' described behaviors will result in immediate precautionary suspension and after due
consideration, the undersigned have determined that such suSpension is warranted. This,
precautionary suspension shall become effective immediately, shall be deemed an interim

precautionary act-ion and not a professionalreview action, and shall not imply any final

finding of responsibility for the situation that caused the suspension; This precautionary
suspension shall remain in effect, unless or Until. modi?ed by. the Chief Executive Officer or Board

of Directors.

10. On or about March 23, 2007, Dr. Stulc received a letter from the Medical ExeCutive Committee
of the Trover Foundation Regional Medical Center located in Madisonville?, Kentucky, which
stated in part: ?[T]he Committee has received additionalE credible information that you have
violated the terms of'your Medical Staff PI (Performance IinproVement) Plan entered into Morel}
13, 2006 as Well as the Medical Staff Values and Experiences. Speci?cally, two complaints: have
been received. The first complaint asserts that you visited an employee while she was a maternity
patient following delivery in the hospital who was not your patient During the visit,- it is reported
that. you kissed. her on the cheek, put yOur hands under the sheet and mashed around on her-
stomach, and prior to" leaving the room, kissed her on the forehead, Upon the employee?s return to
work, over the course of'tir'ne, she asserts that you" have rubbed your privates up against her, as Well
as rubbed your rear end across hers, smacked her on the behind with your hand several times. . .The
second complaint asS'erts that you repeatedly centacted a patient, also an employee, and repeatedly
requested of the employee. ., to be present during her urethropexy surgiCal procedure. In addition,-
the employee states that you have taken pictures of her backside with your cell phone, and brushed
up" against her. Such actions are considered of a sexual: nature constituting; sexual harassment and-
violate the terms of yodr MediCal Staff PI (Performance Improvement) Plan entered into March 13,
2006 as well as the Medical Staff Values and Expectations. Violation of your Performance
Improvement Plan is considered to be disruptive to the orderly Operations of the hospital. Pursuant
to the terms of said Performance Improvement Plan, any validated breech of expectations, actions,
or described behaviors will result in immediate precautionary suspension and after due
consideration, the undersigned have determined that such suspension is Warranted. 
precautionary s'u'spensitm shall become effective immediately, shall be deemed an interim I
precautionary action and not a professional review action, and shall not imply any final
finding of responsibility for the situation that caused the suspension. This precautionary
suspension shallreinain in effect, unless or until. modi?ed by. the Chief Executive OffiCer or Board

of DirectOrs.

11. On or about May 3-0, 2007, Dr. Stulc, while. represented by legal counsel, received a letter from
an attorney representing Trover FoundatiOn Regional MediCal Center, which indicated that the
precautionary suspension of his clinical privileges was lifted. subject. to the following
1. That Dr. Stulc undergo a eValuatiOn. 2-. That Dr. Stulc enter
the Kentucky Physicians Health Foundation. 3. That Dr. Stulc attend and complete a formal
educational course in ?Maintaining Preper Boundaries.? 4. That a strong letter of private
admonition be. issued to Dr.- Stulc. 5. That D'rt. Stule have a chaperone accompany him ?at all times
while he is in the hospital. The validated failure to ensure accompaniment by a chap'erone While
in the hOSpita'l will result in irnrnediate precautionary suspension and shall be grounds for
termination. 6. That Dr. Stale avoid unnecessary centact with hospital employees. 7. That Dr. Stulc-
be prohibited from taking pictores with his camera- phone or any other device Within the hospital. 8.
That Dr. Stulc remain on a ?performance improvement plan for an inde?nite period of time with
zero tolerance for validated behavioral occurrences. .. Any validated behavioral occurrences shall
result in a minimum 31 day su-spenisi-ion and shall be reported to the National Practitioner Data
That Dr. Stale ?shall tender" his resignation from the Medical Staff of Regional Medical
Center to become effective September 1, 2007 and shall agree not to reapply for privileges
inde?nitely.? 10. The records of Trover Health System re?ect that Dr. Stulc was placed. on a work
improvement plan. An investigation into his conduct Was completed. No ?nal adverse action was

taken again-st Dr. Stulc-?s privileges which therefOre were in good standing at that time.

12. The Maine Board found that the language in the above paragraph 1.0 amounted to a quidpro

quo in order to secure Dr. Stulc?s resignation.

13. On June 10, 2007, Dr. Stulc submitted an application as a physician to Redington~FairvieW
General Hospital. In that application, he responded ?Yes? to the following question: ?Have you
ever had your clinieal privileges or employment at any hospital or any other health care facility
limited, suspended, revoked, not renewed or made subject to probationary conditions or otherwise
adversely affected?? Dr. Stulc stated therein that voluntarily accepted a probationary status last
year at Regional Medical Center due to anger management issues. . .I sought 

evaluation for anxiety, stress and anger therapy. . Dr. Stulc neglected to mention any sexually-

related complaints or the course on. Maintaining Proper Beundagries which he was ordered to

complete,

14. On or about June 3, 2008, the Board received a response from. Dr. Stulc to complaint CR 
052. In his response, Dr; Stulc indicated that, through therapy, he came to understand ?a pattern of
sel-?deception. and denial of deeply rooted behavioral issues? and stated, I now. realize and accept-
that the complaints raised at. Trever-were not entirely unfOunded and the proceedings were
signi?cant .eVen?ts- that I should haVe fully disclosed on my applications for licensure. It was not my
intent to deceive the. Board, but I had deceiVed myself into believing these events were not

important.

15. Dr. Stale further admitted. that he ?sprayed all of- the students present male and female? with

saline but denied any ?sexual connotatiOn.?

1'6. Dr; Stu'lc additionally con?rmed that, prior to coming to Maine, Trotter Hospital in Kentucky
had imposed ?preCautionar'y suspensions? of his clinical privileges, placed him on a performance
improvement plan, and required that he obtain counseling for anger management. Dr. 
admitted that, While at Trover, he ?had inappropriately brushed up two women in a
?irtatious manner,? that ?there was an air of constant ?irtation? [at Troyer], and that he did not

maintain proper boundaries with staff.

17. Dr. Stulc repeatedly denied that he had intended to practice fraud or deceit in obtaining his
Maine medical license and preliminarily focnSed the blame for this omission on the Board?s
application form. He argued that the application did not contain the word ?provisionally.? In other
words, the applicatiOn?s language did not ask: ?Have you EVER had your hospital, HMO, or other
health care entity privileges revoked, PROVISIONALLY Suspended, PROVISIONALLY

restricted, limited. in any way, or withdrawn involuntarily??

 

18. Dr. Stole farther testi?ed that he was led to believe that his practice problems at Trover were
not reportable to the National Practitioner Data Bank, and. that the investigation at Trover did not

result in any adVerse action against his privileges. Therefore, he did not report the adrn'inistr'atiVe

 action taken against him at Troyer despite being ordered to: undergo} a evaluation; to
attend and complete a formal educational course in ?Maintaining Proper Boundaries;? to be the
subject of a strong letter of private admcnition; and to be restriCted by having a chaperone
accompany him ?at all times while he. is" in the hespital. .. The validated failure to ensure I
accompaniment by a chaperone while in the hospital will reSul?t in immediate precautionary"
suspension and shall be grounds for terininatioii.? Dr. Stulc testified that. he currently would not

answer the same question on his applicatiOn with the previous answer.
CONCLUSIONS C-R-08.-.-.052

The Board found Dr. Stulc?s reasoning to be fa'llacious and incredible, and accordingly
determined by a vote of 8~0, that based on the above cited evidence, Dr. Stulc violated the
provisions of 32 M.R-.S. practice of fraud or deceit in obtaining a. license under-
this chapter). Additionally, other examples of'misleading or deceptive answer's occurred throughout
this hearing. For instanCe, Dr. Stu'lc?s Curriculum Vitae listed him as the editor of the ?Kentucky?
Medical Association Journal,? whereas he Was actually the scienti?c editor of that publication.
AdditiOnally, several articles were listed in his Curriculum Vitae under the heading ?Publications,?
whereas the articles had not. been published. Some had languished for more than 20 years and Dr.
Stale was unaware of the ?nal dispbsition of those articles. In reSponse, Dr. Stulc testified that he
had not updated his Curriculum Vitae sir-"ice 2007. That testimony was also false in that he listed in

that document his research and professional experience from 2008 ferward.
IV. FINDINGS OF FACT ?Complaint CIR-08480

1. Prior to moving to Maine in late August 2007, Dr.- Stulc had attended a three-day course in
?Professional Boundaries Ethics Program? in Atlanta, Georgia. The three-day course, held on
August 17-19, 2007, included lectures and discussions on the following topics: (1) Ethics and the
Hippocratic Oath~Betraying Professional Trust; Boundary theory and boundary dynamics; (3)
Differentiating boundary drifts, crossings- and Violations; (4) Defining non?sexual and sexual
boundary violations; (5) P-sy'ch'odynamicS of violations; (6) Laws and Legal Censequences of

Boundary Violations; Relapse Prevention; (8) Enac?tment Dynamics and Sexual Mi'sconduc't; (9)

Victimization, Victim Impact and Victim Empathy; and (10) Implementing your Boundary

Protection Plan.

2-. Dr. Stulc- began his employment as a surgeon at RedingtOn?Fairview General Hospital

(RedingtonwFairview) for one week in August 2007 and on September 19 of that year.

3. On or about September 24, 2007, while di-anssing a- colonoscopy procedure with a male patient,-
and in the presence of medical assistant Danielle Gagn?en, an employee of Redin'gtomFairview
General Hospital, Dr. Stale made a sexualized cornr'nent to the patient, to wit: ?about going where?

his wife hadn?t (meaning the patient) and stating? that he allows his wife to go there.?

That on or about September 26, 2-007, Dr. Stulc screamed at medical assistant Danielle Gagnon,
?Why do you people keep. calling me? I know where Pm supposed to be? after she had paged him
becauSe he was  hour late for a patient appointment. Dr. subsequently arrived at the of?ce

and Was very hostile and rude to mediCal assistant Daniele Gagnon.

5. That on or about October 1, 2007, Dr. Stulc stated oat lead, while Walking by a female patient
who was being taken from the medical of?ce by paramedics to the hospital, that ?she is nothing but
a whiner baby.? This comment was overheard by medical of?ce manager Tanya Daigle and
medical assistant Danielle Gagnon. The patient was being transferred due to low blood sugar and

being cold with clammy skin.

6. Dr. Stulc ?rst testi?ed that he never Used. the word ?whiner baby? but later admitted that he may

have used it onetime.

7. That on or about October 10, 2007, while using the medical office computer at Redington
Medical Primary Care, medical of?ce of Redington~FairView, Dr. Stulc downloaded and printed

out pomegraphic images of?wOmen.

8. Dr. Stu?lc performs breast examinations, perineum examinations, and other examinations on

female patients.

.9. That on or about October 10, 2007, Dr. Stulc viewed pomegraphic images using the medical 
of?ce computer at Redington Medical Primary Care both before and after seeing patients

(including women) of Redington~Fairview.

10. The medical of?ce computer Used by Dr;- to download pornographic images was also used
by female empleyees of Redington-Fairview (Tanya Daigle and Danielle Gag'n'o'ii), who were
exposed to the pornographic images, including raw images of sexual act-s,i down-?loaded or printed

by Dr.- Stulc, including:

a. Observing the pornographic images on the medical of?ce computer screen at the time Stale
was using the computer; 

b. InadVertently discovering cepies of pornographic images which Were face-up in his desk
drawer. In this-regard, Dr. Stulc?s- testimony at ?rst focused not On his actions but rather
challenged the witness as to why she was Opening his desk drawer. The reason was that Dr.
Stulc had requested that she depcsit a receipt and change in that draWer'.

c. Discovering copies of pornographic images on the back?side of patient terms when using the

office printer (Le. the porno graphic images were placed in the paper tray of the of?ce printer).I

ll. Tanya Dai?gle and Daniele Gagnon subsequently reported Dr. Stulc?s pornographic downloads

to the medical director at Redington-Fairview.

12. Thatch or about October 12, 2007, Dr. Stale admitted to the medical director of Redington?
Fairview, that while using the medical of?ce computer, he had been downloading and Viewing
pornographic images of women during of?ce hours. He stated at that meeting words to the effect
that ?I?m just a guy? in order to explain his actions. His apology, according to Ms. G-agnon, did not

appear to be sincere.

13. On or about October 15, 2007, Dr. Stulc was advised by the administration of RedingtOn-
Fairview that it would have ?zero tolerance? for using the medical of?ce computer to download

and View porno graphic images of women during office hours.

 

1 There Was no evidence to suggest that Dr. Stale intended for the pomegraphic'materials to be viewed by Others.

10

14-. On or- about October 26, 2007, Dr. Stale, stated to a. 15 year-old female patient, ?boy, they sure
didn?t make?em' like that when I was younger? (Referring to the fact that the young girl?s breast-s
were Wellvdevelo'ped for her age). The girl?s mother was present and told Diane Gagnon? that she

felt ?uncomfortable.?

15. Between on or about NoVember 13, 2007 and November 20, 2007, Dr. Stulc made rude and
inappropriate comments towards medical staff, including stating to Tanya Daig?le in front of.

patients in a ?degrading tone of Voice,? that she ?needed to go back to school.?

16. On or about Nevember 20', 2007, Dr'. Stulc, while using the medical of?ce computer during
office- hours and prior to perfOrming a procedure on a female patient, downloaded and Viewed

pornographic images of women.-

17.- On or about Nevember 2-1, 2007, Tanya Daigle accessed the medical of?ce computer used by
Dr; Stulc to the medical dictation from the previous day. When Ms. Daigle moved the
computer mouse, she observed the following image: a medical procedure room. with a worn-an in a
oh?n'ny sitting and posing p'rov'ocatiVely on the eXam table. The caption over the Woman was



18. On or about November 21, 2007, Tanya Daigle contacted the medical director at Redington-
Fairview Concerning the above image on the of?ce computer used by Dr. Stulc. The medical
director carne to the of?ce and viewed the image. At that time, Tanya Daigle and Danielle Gagnon
also observed on the computer screen ?a side bar of latest websites [and] there were Several nude

and raw pornography photos.?

19. On November 26, 2007, Dr. Stulc was noti?ed by letter from Redington-Fa?irview that he was
under investigation for downloading pornography for a second time and that the hospital was
?Suspending his employment with. pay, effective immediately.? Dr. Stulc did not report this to the

Board.
20. On December 2, 2007, the Emergency Medical License issued to Dr. Stul'c eXpi?red. He filed an

11

amendment to his Permanent LiCens'e applicatiOn on January 3-, 2008,- in which be corrected his
previous ?No? answer regarding ,a medical malpractice question but did not correct or update his?
answer to number 9 regarding the suspension of his hospital privileges, even though his privileges

had been suspended at Redington?Fairview fiVe Weeks before.

21. From December 12 DeCern'ber 19, 2007, Dr. Stulc underwent an. evaluation at the
Professional Renewal'Center (Center) in Lawrence, Kansas. He was thereafter treated at the Center
from January 2, 2-008 until February 15, 2008. He was diagnosed with low level depression with
borderline personality traits, including obsessive and narcissistic traits. He made significant
progress regarding his anger management and sexual maladaptiVe behaViOr- although Dr. Stulc had
a tendency to say what he thought the staff and others wanted to hear and that he had a tendency to
blame others fOr his misfortunes. On discharge, the Center?s staff decided on 16 recommendations.
In the Center?s opinion, Dr. Stale would be eligible to return to work as a physician if he complied

with these recommendations.

22'. Tanya Daigle, following Dr. Stulc?s suSpension from RedingtonuFairview, was Cleaning out a

closet which. Dr. Stale shared with former locum tenen's practitioners. While performing that chore,
she noticed several overturned boXes and more pornographic pictures. On cross-examination at this
hearing, Dr. Stulc attempted to place the blame for these pictures on Ms. Daigle due to her- cleaning

out the closet.

23. On or about May 8, 2-008, the Board. received a letter from Redin?gton?Fairview indicating that
Dr. Stulc had formally resigned from the medical staff at the hospital. while. under investigation
?regarding possible failure to be forthright on his initial application for Medical Staff membership

and privileges regarding prior disciplinary action. and unprofessional behavior.?

24-. On or about June 9, 2008, the Board. received a response from Dr. Stulc to Complaint CR 08-
030. Dr. Stnl'c admitted that, while on duty and at work as a physician at Redington-Fa-irview, he
downloaded, and in some instances printed, pictures of nude and semi-nude women. Dr. Stulc
admitted that he continued to engage in this conduct, deSpite female employees? knowledge of his

conduct and after being confrointe'd about the inappropriateness of this conduct by hospital

12

administration. In addition, Dr. Stale admitted that one of the images he kept on his computer in
the hospital was the image of a Woman in a' hospital gown sitting. on an exam table with the Words
?casual sex? pested onto the image. AlthOugh Dr. Stille- indicated that this image was e?r?nailed to

him by a colleague, he failed: to delete the image.

25. Atthis hearing, Dr.- stated that he had not practiced medicine for many months and had no

interest to returning to his professiOn except in at non-clinical Capacity.
V. CONCLUSIONS OF LAW  

The Board, exercising its knowledge, experience, and training, regarding this complaint
concluded. by the votes noted in parentheses that Dr. aresla'v Stulc violated the follovving provisions

of?Boar-d statutes and Rules, ex'cept for allegation 4.

1. 32 M.R.S. Incompetence: By engaging in conduct that evidences a lack of
ability or fitness to discharge the duty owed bv the licensee to a client or patient or to the general

public. (7-1)

2. 32 MRS. Unprofessional conduct: By violating a standard of professional
behavior, including engaging in disruptive behavior, that has been established in the practice of
medicine. ?Disruptive behavior? means aberrant behavior that interferes with or is likely to

interfere with the delivery of care. (8-0)

3. 32 M.R.S. (Unprofessional conduct: By violating a standard of professional
behavior, including engaging in disruptive behavior, that has been established in the practice of
medicine. The violated standard is f0und as follows in the Code of Medical Ethics of the American
Medical Association, Principles of Medical Ethics:

A. A physician shall be dedicated to providing competent medical care, with compassion
and respect for human dignity and rights.

B. A physician shall uphold the standards of professionalism, be honest in all professional

interactions, and. strive to report physicians de?cient in character or competence, or engaging in
fraud" or deception.- to appropriate. entities.

C. A physician Shall respect the rights of patients, col-'leag'LIes,  other health care.
professionals. .

D. A physician shall, whilecating for a patient, regard responsibility to the patient as

Param0unt. 

4.- 32 M.R.S. A. Violation of the Board?s statutes? or rules;
1. Board Rule, Chapter 10, Sexual MisoondItet:

Section 1(3) ?Physician sexual misconduct? is behavior that exploits the physician-
pati'ent relationship in a SeXua?l way. This behavior is non-diagnostic and?or noiith'erapeutie, may be
verbal or physical, and may include expressions or gestures that hate a sexual connotation. Or that a
reasonable per-son Would construe as such. Sexual misconduct is censide'red inCOInpetenee and
unprofessional conduct as de?ned  32 MRS. 

b. Section ?Se'Xual. impropriety? is" behavior, gestures, or expressions by the
physician that are seductive, seXual'ly suggestive, or sexually demeaning to a patient, including but
not limited to:

i. S'ubjeeting a patient to an examination in the preSenee of another when the physician
has not obtained the Verbal consent of the patient or Where the consent has been withdraw.-

ii. Inappropriate corn-merits about" or to the patient, including but not limited to making
sexual comments about a patie?nt?s body or underclothing; making sexualized or sexually
demeaning comments to a (8-0).

5. 32 MRS. professional diagnosis of a mental or physieal condition that has
resulted or may result in the licensee performing services in a manner that endangers the health or

safety of patients). This allegatiOn was diSmissed by a vote of 6-2.

VI. SANCTION-S

As the result of the above Findings" and Conclusions, the Board by the vote of 8?0 ordered
that Dr. Stuic?s license be IMMEDIATELY REVOKE-D.2 The Board considered the fact that Dr.

 

2 Dr. Stuic was adVised following the hearing ?co-explore the possibility of appiying' for an administrative license".

14.

Stulc?s competency as a surgeon Was not challenged, HoWever, 10 M.R.S.. Sec. 8008 states the

purpose of occupational and professional regulatory boards to be as follows:

?The sole purpose of an occupat-iOnal and professional regulatory board is to protect the public
health and welfare. A- board carries out this purpose by ensuring that the public is served by
competent and honest practitioners and by establishing minimum standards of proficiency in the
regulated profession-s by examining, licensing, regulating and disciplining practitioners of those
regulated professiOns; Other goals or objectives may not supersede this purpose.? The Board found

it abundantly clear that Dr. Stu?lc Was neither honest in his practice of medicine nor trustworthy.
So Ordered.

Dated: nne 9, 2009

 

  

Gary Hat?eld, M.D., Secretary - . 
Maine Board of Licen?sure in Medicine-

VII. APPEAL RIGHTS

Pursuant to the provisions of 5 MRS. Sec. 10051.3 and 10 MRS. Sec. 8003 and
any party that appeals this Decision and Order must ?le a Petition for Review in the District
Court within 30 days of receipt of this Order. The petition shall specify the person seeking review,
the manner in which. they are aggrieved and the final agency action which they wish reviewed. It
shall also contain a concise statement as to the nature of the action or inaction to be reviewed, the
grounds upon which relief is sought. and a demand for relief. Copies of the Petition for Review
shall be served by Certi?ed Mail, Return Receipt Requested upon the Maine State Board of

Licensure in Medicine, all parties to the agency proceedings and the Attorney General.

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Case 1:09-cv-00353-JAW Document 82 Filed 06/27/11 Page 1 of 83

PageID #: 1441

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
TANYA DAIGLE,
Plaintiff,
v.
JAROSLAV P. STULC, et al.,
Defendants.

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)
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)
)
)
)
)
)

1:09-cv-00353-JAW

ORDER ON MOTION FOR SUMMARY JUDGMENT
In an action by a nurse against a hospital alleging a hostile work
environment under Title VII and the Maine Human Rights Act, and retaliation
under Title VII, the Maine Human Rights Act and the Maine Whistleblower's
Protection Act, the hospital moves for summary judgment. The Court concludes
that summary judgment is appropriate as to the hostile work environment claims
because the hospital took the nurse's sexual harassment complaints seriously and
acted promptly and appropriately. The Court concludes that summary judgment is
not appropriate as to the retaliation claims because there remains a question of fact
as to whether the nurse's termination was pretextual. The Court also concludes
that summary judgment is not appropriate as to the nurse's demand for punitive
damages.
I.

STATEMENT OF FACTS
A.

Procedural History

On August 6, 2009, Tanya Daigle filed a complaint in this Court against

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Jaroslav P. Stulc and Redington-Fairview General Hospital (-Redington-Fairview?),
alleging that Jason Stulc, a physician who was a member of the Medical Staff of
Redington-Fairview, has sexually harassed her and that Redington-Fairview
provided a hostile work environment for her and retaliated against her by firing her
when she complained.1

Compl. (Docket # 1).

Ms. Daigle later amended the

Complaint to include Dr. Stulc as a defendant.2 Am. Compl. (Docket # 25). The
Amended Complaint claims the hospital created a hostile work environment in
violation of the Maine Human Rights Act (MHRA) and Title VII (Count IV),
retaliated against her under the MHRA and Title VII (Count V), violated the
Whistleblower's Protection Act (Count VI), engaged in impermissible gender
discrimination under 42 U.S.C. ?? 2000e-2, 2000e-3, and 1981a (Count VII), and
violated the Maine Human Rights Act (Count VIII). Am. Compl. 40-44.
Redington-Fairview contends that it terminated Ms. Daigle's employment
because she violated hospital rules, not for impermissible reasons. On November
12, 2010, Redington-Fairview moved for summary judgment. Def.'s Mot. for Summ.
J. (Docket # 63) (Def.'s Mot.). Ms. Daigle responded on December 17, 2010. Pl.'s
Objection to Def.'s Mot. for Summ. J. (Docket # 70) (Pl.'s Resp.). Redington-Fairview
replied on January 10, 2011. Def. Redington-Fairview Gen. Hosp.'s Reply Mem. in
Support of Mot. for Summ. J. (Docket # 80) (Def.'s Reply).

On March 17, 2010, the Court affirmed a Recommended Decision, dismissing one of the original
defendants, Trover Clinic Foundation Incorporated, on jurisdictional grounds. Order Affirming the
Recommended Decision of the Magistrate Judge and Denying Pl.'s Mot. for Jurisdictional Disc.
(Docket # 42).
2 After Dr. Stulc filed a suggestion of a pending Chapter 7 bankruptcy proceeding, the Court on
December 21, 1008 ordered the matter stayed as to him. Order. (Docket # 28)
1

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B.

PageID #: 1443

Statement of Facts
1.

Statements of Material Fact, Objections, and Qualified
Responses

Local Rule 56 requires the parties to present -a separate, short, and concise
statement of material facts? with their motion, opposition, and reply. D. ME. LOC. R.
56(b)-(d). Here, Redington-Fairview led off with 202 separate material facts. Def.'s
Statement of Undisputed Material Facts ?? 1-202 (Docket # 64) (DSMF).

Ms.

Daigle responded with 288 additional facts.3 Pl.'s Opposing Statement of Material
Facts (Docket # 71) (PODSMF). All told, the parties presented -separate, short and
concise? statements containing 490 paragraphs.
That is not all. With few exceptions, each party liberally disputed the other's
supposedly undisputed material facts. Of the Defendant's 202 material facts, Ms.
Daigle admitted 155, objecting to, qualifying or denying the remaining 47. Of Ms.
Daigle's 288 additional facts, Redington-Fairview outright admitted only 57,
objecting to, qualifying, or denying all or a portion of the remaining 231.

Def.

Redington-Fairview Gen. Hosp.'s Resp. to Pl.'s Opposing Statement of Material Fact
(Docket # 81) (DRPSAMF). When presented with such an unwieldy and contentious
record on a motion for summary judgment, the Court is left with few good options.
It does not bode well for the movant who must demonstrate that there are no
genuine issues of material fact to present such a highly disputatious set of combined
facts; by filling the record with hundreds of facts, great and small, and by denying,
Plaintiff's Statement of Additional Material Facts contains two paragraph 458s, so the actual
number of paragraphs differs from the numbering. PSAMF ?? 203-489. The Statement of
Additional Material Facts also repeats nearly verbatim ten paragraphs. PSAMF ?? 415-24, 426,
431-41,
3

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PageID #: 1444

objecting, or qualifying so much of the non-movant's additional material facts, the
movant effectively proves his opponent's point. At the same time, the non-movant's
tactical choice to load the record with tangential facts and legal argument in the
guise of facts does not create material facts where none exists.
2.

The Undisputed Facts

In accordance with the -conventional summary judgment praxis,? the Court
recounts the facts in the light most favorable to the non-movant's theory of the case,
consistent with record support. Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11,
17 (1st Cir. 2002).
a.

Tanya Daigle

Redington-Fairview employed Tanya Daigle as a medical secretary from
January 22, 2007 through November 12, 2008. DSMF ?? 15-16; PODSMF ?? 15-
16.

Redington-Fairview initially employed Ms. Daigle in Redington-Fairview

Primary Care, one of its satellite offices and in April 2007, it transferred her to its
newly-formed general surgery office. DSMF ?? 16-17; PODSMF ?? 16-17. From
April 2007 to September 2007, Ms. Daigle worked in general surgery performing
medical assisting work for various locum tenens surgeons as well as certain office
managerial duties, and during this period, the general surgery office was staffed
exclusively by the locum tenens surgeons and Ms. Daigle.
PODSMF ?? 18-19.

DSMF ?? 18-19;

On September 19, 2007, Redington-Fairview hired Dr.

Jaroslav Stulc as a general surgeon, and Dr. Stulc continued to work there until
November 21, 2007.

DSMF ?? 20-21; PODSMF ?? 20-21; PSAMF ? 412;

DRPSAMF ? 412. Between November 21, 2007 and February 2008, Ms. Daigle
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helped fill in for other offices as Redington-Fairview recruited a new general
surgeon. DSMF ? 21; PODSMF ? 21. In February 2008, Dr. Shankar, a general
surgeon, began working at Redington-Fairview's general surgery office. DSMF ?
22; PODSMF ? 22. As of February 1, 2008, Redington-Fairview had a medical
secretary and a medical assistant working in the general surgery office. DSMF ?
23; PODSMF ? 23.
b.

The Redington-Fairview Witnesses

The Redington-Fairview witnesses to this case include: 1) Richard Willett,
the Chief Executive Officer (CEO) at Redington-Fairview; 2) Dana Kempton, the
Chief Financial Officer (CFO) at Redington-Fairview; 3) Deborah Buckingham, the
Director of Human Resources at Redington-Fairview; 4) Raymond Leadbetter, the
Practice Manager at Redington-Fairview until March 12, 2008 and Ms. Daigle's
direct supervisor; 5) Linda Caron, the Practice Manager at Redington-Fairview
from April 2008 through November 3, 2008 and Ms. Daigle's direct supervisor from
April to May 2008; 6) Lisa Rice, Office Manager of General Surgery at RedingtonFairview, effective May 29, 2008; 7) Virginia Farley, Manager of the Post
Anesthesia Care Unit (PACU) and Day Surgery at Redington-Fairview; 8) Gretchen
Keany, primary charge nurse until January 2001 and since then, the Operating
Room (OR) Manager at Redington-Fairview; 9) Sherry Rogers, Chief Nursing
Officer at Redington-Fairview; 10) Danielle Gagnon, Registered Nurse at
Redington-Fairview General Surgery from September 10, 2007 through February 5,

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2009;4 and, 11) Dr. Roger Renfrew, Medical Director of Redington-Fairview. DSMF
?? 1-12, 14; PODSMF ?? 1-12, 14.
c.

Dr. Jaroslav Stulc

Approximately September 1, 2007, Dr. Jaroslav Stulc began working at
Redington-Fairview as a locum tenens on a per diem basis. DSMF ? 24; PODSMF ?
24. From September 1, 2007 to September 19, 2007, his work was exemplary and
on September 19, 2007, he began working in Redington-Fairview's general surgery
office. DSMF ? 24; PODSMF ? 24. As a condition of employment, before he became
employed at Redington-Fairview, Dr. Stulc applied for membership on its Medical
Staff.

DSMF ? 25; PODSMF ? 25.

To review his Medical Staff application,

Redington-Fairview, through its Medical Staff, verified information about Dr. Stulc,
including his education, qualifications, experience, work history, and background,
checked with the National Practitioner Data Bank and his previous hospitals, and
interviewed him. DSMF ? 26; PODSMF ? 26.
d.

The Redington-Fairview Hiring Process for Dr.
Stulc

On June 2, 2007, Dr. Jaroslav P. Stulc applied to the Maine Board of
Licensure in Medicine for a license to practice medicine in the state of Maine.5 Pl.'s

Ms. Daigle described Ms. Gagnon as a Registered Nurse. PSAMF ? 218. Redington-Fairview
objected and stated that Ms. Gagnon has been a medical secretary. DRPSAMF ? 218. Although the
Court suspects Redington-Fairview is correct, because it is required to view the facts in the light
most favorable to Ms. Daigle, the Court for purposes of this motion accepts her assertion that Ms.
Gagnon was a Registered Nurse.
5 In response to a number of Ms. Daigle's additional material facts, Redington-Fairview objected to
documents attached to her affidavit on the ground that Ms. Daigle does not have the personal
knowledge to establish a proper foundation for admissibility. See DRPSAMF ?? 203-07. For
example, Ms. Daigle asserts in her statement of additional material facts number 203 that Dr. Stulc
applied to the Maine Board of Licensure of Medicine on June 2, 2007 for a license to practice
medicine in the state of Maine. PSAMF ? 203. She bases this statement on her affidavit, which
4

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Separate Statement of Additional Facts ? 203 (Docket # 71) (PSAMF); DRPSAMF ?
203. As a part of his application, Dr. Stulc signed under penalties of perjury an
-Affidavit of Applicant,? which affirmed that all of his statements were true. 6
PSAMF ? 204; DRPSAMF ? 204. In his application, Dr. Stulc was asked: -Have you
EVER had your hospital, HMO, or other healthcare entity privileges revoked,
suspended, restricted, limited in any way, or withdrawn involuntarily?? PSAMF ?
205 (capitalization in original); DRPSAMF ? 205. Dr. Stulc circled -No,? which was
false. PSAMF ?? 205, 206; DRPSAMF ?? 205, 206. The application also asked:
-Have you EVER voluntarily surrendered privileges or resigned from staff
membership during peer review or investigation or to avoid peer review or
investigation?? PSAMF ? 207; DRPSAMF ? 207 (capitalization in original). Dr.
Stulc circled -No,? which was false. PSAMF ?? 207, 208; DRPSAMF ?? 207, 208.
Dr. Stulc committed perjury while applying to the Maine Board of Licensure in
Medicine in order to practice medicine and surgery in the state of Maine. PSAMF ?
209; DRPSAMF ? 209.
By contrast, in his application for Medical Staff privileges at Redington-

attached a copy of what appears to be Dr. Stulc's June 1, 2007 license application to the Maine Board
of Licensure of Medicine. Permanent MD License Application at 3-4 (Docket # 73). The evidentiary
standard for the authentication is a low bar; the proponent must satisfy the Court that the -the
matter in question is what its proponent claims.? FED. R. EVID. 901(a). Here, for purposes of the
pending motion, the doctor's application has sufficient indicia of authenticity to meet this low hurdle.
The Court overrules all the Defendant's objections to the exhibits attached to Ms. Daigle's affidavit.
6 In its response to this portion of Ms. Daigle's additional material facts, Redington-Fairview has
interposed a number of objections to the paragraph and has denied the statements. See DRPSAMF
?? 204-13. For example, Redington-Fairview denied that the application contained the questions
and answers that Ms. Daigle alleged. DRPSAMF ? 205, 207. Ms. Daigle filed a copy of the
application with the Court and the questions and answers clearly appear as quoted in the
application. The Court does not consider Redington-Fairview's denial of what is an evident fact in
good faith and it treats these statements as admitted. In any event, the Court is required at this
stage to view the facts in the light most favorable to the non-movant consistent with record support.

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Fairview, Dr. Stulc acknowledged that his clinical privileges or employment at a
hospital or other facility had been limited, suspended, revoked, or renewed, or made
subject to probationary conditions or otherwise adversely affected. PSAMF ? 211;
DRPSAMF ? 211. If Redington-Fairview reviewed both Dr. Stulc's application to
the Board of Licensure in Medicine and his application for Medical Staff privileges,
it would have known or should have known that he had lied on his application for a
medical license. PSAMF ? 212; DRPSAMF ? 212.
During his interviews and pre-employment meetings, Dr. Stulc advised
Messrs. Willett and Kempton and Dr. Renfrew that he had voluntarily obtained
treatment for anger management at Trover Regional Medical Center, where he
previously worked.7

DSMF ? 27; PODSMF ? 27.

Later, Redington-Fairview

received information from a psychologist that Dr. Stulc had made significant
progress with his anger issues and the psychologist had no reservations about his
ability to function appropriately.8

DSMF ? 28; PODSMF ? 28.

After a

recommendation from the Medical Staff, a review of the background material,

Ms. Daigle asserts in her additional material fact paragraph 215 that Mr. Willett -knew [Dr.] Stulc
was suspended for anger management issues before he was hired.? PSAMF ? 215. RedingtonFairview objected on the ground that the testimony cited by Ms. Daigle does not support the
assertion. DRPSAMF ? 215. The Court agrees with Redington-Fairview and strikes Plaintiff's
paragraph 215 as not supported by the record. The next proffered fact, paragraph 216, assumes the
truth of paragraph 215 and to that extent the Court also strikes Plaintiff's paragraph 216. Further,
Redington-Fairview objects to paragraph 216 on the ground that the testimony cited by Ms. Daigle
does not support the assertion. DRPSAMF ? 216. First, the record citation by Ms. Daigle does not
support the assertion. Second, as Redington-Fairview pointed out, the statement is contradicted by
other portions of Mr. Willett's testimony. The Court strikes Plaintiff's material fact paragraph 216.
8 Ms. Daigle cryptically objected to this material fact, stating only -hearsay; not admissible.?
PODSMF ? 28. The Court overrules the objection. The statement from the psychologist is not for
the truth of the matter but reflects Redington-Fairview's due diligence and actual knowledge of Dr.
Stulc's propensities, matters squarely raised by Ms. Daigle's charge that Redington-Fairview was
negligent in hiring Dr. Stulc. As Ms. Daigle has not denied the paragraph, the Court accepts the
statement of fact for purposes of this motion.
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personal meetings and interviews with Dr. Stulc, and discussions with Dr. Renfrew,
Mr. Willett, the Redington-Fairview CEO, decided to hire Dr. Stulc. DSMF ? 29;
PODSMF ? 29.
e.

Redington-Fairview Sexual Harassment Training

Redington-Fairview Hospital provides all employees with a copy of its sexual
harassment policy and it trains all employees on this policy during their initial
orientation. DSMF ? 30; PODSMF ? 30. Further, Redington-Fairview requires all
employees to take harassment training through e-learning on an annual basis.
DSMF ? 31; PODSMF ? 31. After Redington-Fairview first hired Ms. Daigle, she
was given a copy of the sexual harassment policy, received sexual harassment
training, and undertook annual reviews. DSMF ?? 33-35; PODSMF ?? 33-35.
f.

Tanya Daigle's Initial Problems

Either during the last week of September or the first week of October, 2007, a
few weeks after Dr. Stulc began working at Redington-Fairview, Ms. Daigle began
to experience problems with him.

DSMF ? 36; PODSMF ? 36.

Her first

uncomfortable encounter took place when Dr. Stulc yelled at her and told her not to
second guess him when she called to the Hospital to find out when he would return
to the office. DSMF ? 37; PODSMF ? 37. The Monday after the incident, Ms.
Daigle reported her concern about Dr. Stulc's verbal abuse to Mr. Leadbetter, her
direct supervisor, and Dr. Renfrew, and Mr. Leadbetter assured her that he would
address it with the doctor. DSMF ?? 38-39; PODSMF ?? 38-39. Dr. Renfrew asked
Ms. Daigle to set up a meeting among Dr. Stulc, Virginia Farley, himself and
herself to work out expectations. DSMF ? 40; PODSMF ? 40.
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About one month later, however, Dr. Stulc became upset when Ms. Daigle
told him that she could not read a word of what he had written on a form, and he
told her she should go back to school. DSMF ? 41; PODSMF ? 41. Ms. Daigle
observed that Dr. Stulc is a very vocal man and he interacted this way with both
men and women. DSMF ? 42; PODSMF ? 42.
g.

October 10, 2007: Pornographic Images and the
Hospital's Response

On October 10, 2007, while putting change back into Dr. Stulc's desktop
drawer, Ms. Daigle discovered printouts of several pornographic images. DSMF ?
43; PODSMF ? 43.

That same day, Ms. Daigle and Ms. Gagnon both found

pornography on the hospital computer in Dr. Stulc's office.9

PSAMF ? 218;

DRPSAMF ? 218. Ms. Daigle alerted Mr. Leadbetter who immediately came to the
office and after Mr. Leadbetter viewed the printouts, he had Ms. Daigle copy them
and went to the Hospital to report the incident to his supervisor, Dana Kempton.
DSMF ?? 44-45; PODSMF ?? 44-45. This was the first time Ms. Daigle reported
to management concerns about whether Dr. Stulc was viewing inappropriate
images in his office at Redington-Fairview. DSMF ? 47; PODSMF ? 47.
When Mr. Kempton came to the general surgery office, Ms. Daigle and Ms.
Gagnon told Mr. Leadbetter that they had witnessed a lot of inappropriate sexual
behavior from Dr. Stulc, including sexually touching female patients, such as
caressing their faces with the back of his hand, patting their buttocks, and rubbing
Ms. Daigle's material fact paragraph 218 states that they found -raw? pornography on Dr. Stulc's
hospital computer. PSAMF ? 218. Redington-Fairview objected to her characterization of the
pornography. DRPSAMF ? 218. The Court agrees that the adjective -raw? is too vague and too
subjective to be considered as a fact for purposes of the pending motion.
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their buttocks with his hand. PSAMF ? 219; DRPSAMF ? 219.
Ms. Gagnon also told Mr. Kempton about what she considered to be
inappropriate verbal sexual conduct with a male patient, who was being seen for
rectal bleeding.10 PSAMF ? 220; DRPSAMF ? 220. They reported that Dr. Stulc
had said to the man: -You know, we're going to go places where no one has gone.
Not even your wife--even though I let my wife go there. (chuckle).? Id. Ms. Gagnon
complained that as a female medical assistant, Dr. Stulc's comments made her feel
very embarrassed and uncomfortable.

PSAMF ? 221; DRPSAMF ? 221.

Ms.

Gagnon had informed Redington-Fairview of this conduct shortly after it occurred.11
PSAMF ? 233; DRPSAMF ? 233.
Dr. Stulc was not in the office that day. DSMF ? 46; PODSMF ? 46. Mr.
Kempton and Mr. Leadbetter met with Dr. Stulc, showed him the images, and Dr.
Stulc admitted he had printed them. DSMF ? 48; PODSMF ? 48. Mr. Kempton
told Dr. Stulc that Redington-Fairview would not tolerate this type of behavior.
DSMF ? 49; PODSMF ? 49.
On October 12, 2007, Mr. Kempton and Mr. Leadbetter met with both Ms.
Daigle and Ms. Gagnon and Mr. Kempton apologized to Ms. Daigle and assured her
that the Hospital would not retaliate against her for reporting Dr. Stulc. 12 DSMF ?

Redington-Fairview objects to this paragraph on evidentiary grounds. DRPSAMF ? 220. The
Court overrules the objection.
11 Redington-Fairview objects to this paragraph on evidentiary grounds. DRPSAMF ? 233. The
Court overrules the objection.
12 Redington-Fairview's material fact paragraph 53 states that Mr. Kempton told Ms. Daigle that
there would be no retaliation for coming forward with her concerns. DSMF ? 53. Ms. Daigle's
response was limited to: -Denied (Daigle Aff. ?? 36-48).? This is not a proper response. The Court
has no obligation to search through a party's reference to multiple paragraphs in an affidavit to
ferret out the basis of the party's objection. Ricci v. Applebee's Ne., Inc., 297 F. Supp. 2d 311, 321 (D.
10

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51-53; PSAMF ? 223; DRPSAMF ? 223. In fact, Redington-Fairview management
had always instructed Ms. Daigle that if she were to witness something that was
ethically wrong, she should report it to management as she did to Mr. Leadbetter,
and Ms. Daigle signed an ethical statement to that effect on November 16, 2007. 13
PSAMF ? 231; DRPSAMF ? 231.
Mr. Kempton informed them that Dr. Stulc admitted to looking up
pornography during office hours and that he was remorseful.

PSAMF ? 223;

DRPSAMF ? 223. On October 12, 2007, Mr. Kempton wrote that he was concerned
that Dr. Stulc was viewing pornography at work, even though he expressed
remorse, there was -such a disconnect between expressed remorse and something so
obviously wrong? as viewing pornography while at work before examining female
patients. PSAMF ? 241; DRPSAMF ? 241. Ms. Daigle and Ms. Gagnon told Mr.
Kempton that they felt they could continue to work with Dr. Stulc if he was
remorseful and if he promised not to engage in similar behavior again. DSMF ? 54;
PODSMF ? 54. Believing that a mediator would be present, Ms. Daigle and Ms.
Gagnon agreed to meet with Dr. Stulc. DSMF ? 55; PODSMF ? 55; PSAMF ? 223;
DRPSAMF ? 223.
At the October 12, 2007 meeting, Ms. Daigle informed Mr. Kempton and Mr.
Leadbetter that Dr. Stulc had verbally threatened her and had placed her in fear in

Me. 2003) (-Local Rule 56 was designed to halt the former summary judgment practice of submitting
a voluminous record and leaving to the court the duty to comb the record in search of material
facts?). Moreover, in reviewing the cited paragraphs of the Daigle affidavit, the Court could find no
statement contradicting Redington-Fairview's material fact paragraph 53. The Court treats the
paragraph as admitted by Ms. Daigle.
13 Ms. Daigle's additional material fact paragraph 231 continues with a legal argument, not a
statement of fact and the Court has not considered the third and fourth sentences of paragraph 231.

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her own office.14

PSAMF ? 223; DRPSAMF ? 223.

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Mr. Kempton excused the

doctor's conduct saying that Dr. Stulc was under a lot of stress. PSAMF ? 223;
DRPSAMF ? 223.
Mr. Kempton and Mr. Leadbetter met with Dr. Stulc and told him that he
must meet with Ms. Daigle and Ms. Gagnon. DSMF ? 56; PODSMF ? 56. On
October 15, 2007, Ms. Daigle and Ms. Gagnon went to Mr. Kempton's office.
PSAMF ? 224; DRPSAMF ? 224.

There was no mediator present and Ms.

Buckingham was not present either. PSAMF ? 224; DRPSAMF ? 224. In fact, Ms.
Buckingham was not aware of the meeting. PSAMF ? 239; DRPSAMF ? 239. The
meeting took place among Dr. Stulc, Ms. Daigle, Ms. Gagnon, Mr. Kempton, and
Mr. Leadbetter. DSMF ? 57; PODSMF ? 57. Ms. Daigle felt intimidated and found
it difficult to speak because there was no mediator or female management personnel
present. PSAMF ?? 224, 229; DRPSAMF ?? 224, 229.
At the October 15, 2007 meeting, Dr. Stulc said, -Well, I guess I have been a
bad, bad boy? and -I am just a guy.?15 PSAMF ? 225; DRPSAMF ? 225. Mr.
Kempton chuckled at the doctor's remark. PSAMF ? 225; DRPSAMF ? 225. Dr.
Stulc excused his behavior by saying that he and his wife viewed computer
pornography all the time, that he was used to having his own private practice, and
that he did not see any harm in what he was doing. PSAMF ? 225; DRPSAMF ?

Redington-Fairview denies this part of Plaintiff's additional material fact paragraph 223.
DRPSAMF ? 223. Because the Court is required to view the record evidence in the light most
favorable to Ms. Daigle, the Court has considered the paragraph as true for purposes of the pending
motion.
15 Redington-Fairview objected to this statement on evidentiary grounds. DRPSAMF ? 223. The
Court overrules Redington-Fairview's objection.
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225. Nevertheless, Dr. Stulc apologized for his behavior and said he would like to
continue to work with Ms. Daigle and Ms. Gagnon. DSMF ? 59; PODSMF ? 59.
Although Mr. Kempton thought Dr. Stulc was genuinely sorry, Ms. Daigle did not.
DSMF ? 60; PODSMF ? 60; PSAMF ? 225; DRPSAMF ? 225. In Ms. Daigle's
presence, Mr. Kempton told Dr. Stulc that downloading pornography on the office
computer, where Ms. Gagnon and Ms. Daigle could be exposed to it, would not be
tolerated and constituted sexual harassment.16 PSAMF ? 226; DRPSAMF ? 226.
Mr. Kempton and Mr. Leadbetter told Dr. Stulc that the Hospital had a -zero
tolerance? policy against conduct of a sexual nature and looking at pornography
before and after he examined female patients is ethically wrong and would not be
tolerated.17 PSAMF ? 230; DRPSAMF ? 230.
At the same meeting, however, Dr. Stulc said that he -doesn't like to be
second-guessed and cannot have that in my office.?18 PSAMF ? 227; DRPSAMF ?
227. When Dr. Stulc said that a lot of what he does in the office setting is -his

Redington-Fairview objected to the portion of this paragraph in which Mr. Kempton is alleged to
have told Dr. Stulc that downloading pornography would constitute sexual harassment. DRPSAMF
? 226. The Court is required to view the evidence in the light most favorable to Ms. Daigle and
assumes the truth for purposes of this motion of the objected to portion of Ms. Daigle's paragraph.
17 Redington-Fairview made an evidentiary objection to this paragraph. DRPSAMF ? 230. The
Court overrules the Hospital's objection.
18 Redington-Fairview made an evidentiary objection to Dr. Stulc's statement. DRPSAMF ? 227.
The Court overrules the Hospital's objection. In her additional material fact paragraph 227,
however, Ms. Daigle goes on to say that -[t]his statement was an implied threat against Ms. Daigle's
employment, and an expression by [Dr.] Stulc of the power he perceived himself to have, as a male
doctor, over Plaintiff and Danielle Gagnon, in the form of power to prevent Plaintiff and Danielle
Gagnon from bringing [Dr.] Stulc's inappropriate behavior and the hostile work environment it
created to the attention of [Redington-Fairview's] management. Neither Mr. Kempton, the Chief
Financial Officer, nor Mr. Leadbetter, both male members of management, disputed [Dr.] Stulc's
threat, a failure which Plaintiff reasonably believed constituted acquiescence by [RedingtonFairview], and, as such, another component of the sexually hostile work environment. PSAMF ?
227. The Court strikes the latter assertions: they do not posit facts; they make legal arguments in
the guise of facts.
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style,? for example, caressing female patients, neither Mr. Kempton nor Mr.
Leadbetter told him that -his style? was unethical and violated state and federal
law.19 PSAMF ? 228; DRPSAMF ? 228. Furthermore, although Ms. Daigle had
asked Mr. Leadbetter and Mr. Kempton to tell Dr. Stulc not to verbally abuse her,
they failed to mention to him that such abuse or hostility is against Hospital
policy.20 PSAMF ? 229; DRPSAMF ? 229.
For a few weeks, Dr. Stulc was fine and things went smoothly in general
surgery. DSMF ? 63; PODSMF ? 63. Even so, after the images were found in his
drawer, Mr. Kempton made arrangements for Dr. Stulc to meet with a psychologist
because he was concerned that even though Dr. Stulc was remorseful, there could
have been some underlying issues that precipitated his viewing inappropriate
images at work. DSMF ? 64; PODSMF ? 64.
h.

October 15-November 19, 2007: Additional
Problems21

On October 18, 2007, Dr. Stulc falsely told one of Ms. Daigle's co-workers that
Ms. Daigle -obviously didn't know what time the surgeries are, and that is why he is

Redington-Fairview made an evidentiary objection to Dr. Stulc's statement and the lack of
response from Hospital administration. DRPSAMF ? 228. The Court overrules RedingtonFairview's objection. By the same token, the Court has not included a portion of the Plaintiff's
paragraph that is argument, not fact.
20 Redington-Fairview objected to and denied this statement. DRPSAMF ? 229. The Court overrules
the objection and, viewing the evidence in the light most favorable to Ms. Daigle, accepts the truth of
the paragraph for purposes of this motion.
21 In her additional material facts, Ms. Daigle presents evidence of other misconduct by Dr. Stulc
that continued directly after the October 15, 2007 meeting. PSAMF ?? 242-43. The Court finds
these allegations difficult to square with Ms. Daigle's other admission that -[d]uring the few weeks
after this meeting, Dr. Stulc was fine, and things in the general surgery office went smoothly.?
DSMF ? 63; PODSMF ? 63.
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late all of the time.?22 PSAMF ? 242; DRPSAMF ? 242. Of all the doctors, Dr. Stulc
was the only one who was consistently late and who complained about Ms. Daigle's
scheduling. PSAMF ? 242; DRPSAMF ? 242.
Sometime after October 15, 2007, Dr. Stulc performed a pre-operative
examination on a teenaged female and afterwards, he inappropriately patted her
buttocks with his hand.23 PSAMF ? 243; DRPSAMF ? 243.
On October 19, 2007, Ms. Daigle told Mr. Leadbetter, her supervisor, that she
had felt intimidated by the circumstances of the October 15, 2007 meeting in Mr.
Kempton's office and that she had been under the impression on October 12, 2007,
there would be a mediator at that meeting so she could speak freely. PSAMF ? 244;
DRPSAMF ? 244. Mr. Leadbetter replied that -Dr. Stulc is not going anywhere and
if [you cannot] work with the doctor,? he would -find another position? for her.
PSAMF ? 244; DRPSAMF ? 244.
On October 26, 2007, Dr. Stulc stated in the presence of a 15 year old female
while raising his eyebrows, -Boy, they don't make them like that anymore,? and
-They never made them like that when I was younger.? PSAMF ? 258; DRPSAMF
? 258.
On November 13, 2007, Dr. Renfrew gave Dr. Stulc his five-week review.24

Redington-Fairview objected to this statement on evidentiary grounds. DRPSAMF ? 242. The
Court overrules Redington-Fairview's objection.
23 Redington-Fairview objected to this statement on evidentiary grounds. DRPSAMF ? 243. The
Court overrules Redington-Fairview's objection
24 Redington-Fairview objects on evidentiary grounds to this statement. DRPSAMF ? 246. The
Hospital says that Dr. Renfrew met with Dr. Stulc in early November to discuss his five week
evaluation but never completed it. Id. From the Court's perspective, whether Dr. Renfrew began or
completed his five-week evaluation of Dr. Stulc on November 13, 2007 is not material to the pending
motion. Redington-Fairview also objects about what Ms. Daigle recalled Dr. Stulc said about the
22

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PSAMF ? 246; DRPSAMF ? 246. Dr. Stulc told Ms. Daigle that the Hospital had
said he was doing a wonderful job and to keep up the good work. PSAMF ? 246;
DRPSAMF ? 246. Dr. Stulc appeared happy with the review and was bragging
about it in the office. PSAMF ? 246; DRPSAMF ? 246. He made no mention of any
comments about his violation of Redington-Fairview ethical policies respecting
female employees and patients. PSAMF ? 246; DRPSAMF ? 246.
On November 14, 2007, Dr. Stulc made rude and inappropriate comments of
a sexual nature, and each day thereafter, Dr. Stulc subjected Ms. Daigle to verbal
abuse and an uncomfortable work environment.25 PSAMF ? 247; DRPSAMF ? 247.
On that same day, Dr. Stulc was scheduled to see patients at 1:00 p.m. but at about
1:15 p.m. called the general surgery office to inform them he was going to be late.
PSAMF ? 248; DRPSAMF ? 248. Ms. Daigle asked Dr. Stulc when they could
expect him and he replied, as soon as -[I am] done saving lives.? Id. As more time
passed, Ms. Daigle began to reschedule patients. PSAMF ? 248; DRPSAMF ? 248.
Dr. Stulc arrived at 3:30 p.m. PSAMF ? 248; DRPSAMF ? 248. After the last
patient left, Ms. Daigle asked Dr. Stulc to have someone call if he knew he was
going to be late so that they could call the patients to reschedule. PSAMF ? 248;
review. Id. This objection is overruled since Ms. Daigle is not offering Dr. Stulc's comments for their
truth but for her perception of how Redington-Fairview was handling her complaints against Dr.
Stulc. Finally, the Court will not consider the fifth and sixth statements in Plaintiff's additional
material fact paragraph 246 since they make arguments, and do not posit facts.
25 Redington-Fairview objects on evidentiary grounds to this statement. DRPSAMF ? 247. The
Hospital cites Ziehm v. RadioShack Corp., No. 09-69-P-S, 2010 U.S. Dist. LEXIS 13782, at *6 (D. Me.
May 22, 2010), for the proposition that a plaintiff cannot manufacture a genuine issue of material
fact by submitting an affidavit during summary judgment that contradicts earlier clear and
unambiguous testimony. However, the Court has reviewed the deposition testimony the Hospital
has cited and concludes that there is an insufficient conflict between the deposition testimony and
Plaintiff's additional material fact paragraph 247 to call the Ziehm rule into play. Finally, Ms.
Daigle's reference to a sexually hostile work environment is a legal question and the Court has not
considered it.

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DRPSAMF ? 248. Dr. Stulc told Ms. Daigle not to tell him how to run his practice.
PSAMF ? 248; DRPSAMF ? 248.
On November 15, 2007, after Dr. Stulc had written an illegible word on a
patient consent form, Ms. Daigle asked him what the word was. PSAMF ? 249;
DRSAMF ? 249. In a degrading tone in front of patients in the waiting area, Dr.
Stulc told Ms. Daigle what the word was and loudly stated that she needed to go
back to school, embarrassing her in front of the patients. PSAMF ? 249; DRSAMF
? 249. The problem, however, had been Dr. Stulc's penmanship, not Ms. Daigle's
education. PSAMF ? 249; DRSAMF ? 249.
Also on November 15, 2007, another patient called before her follow-up
appointment to state that she was in so much pain due to the procedure Dr. Stulc
had performed on November 8, 2007, she had been up all night. PSAMF ? 250;
DRPSAMF ? 250. Upon questioning, the patient said her pain was a 20 on a scale
of 1 to 10 and that she was running a fever of 102. PSAMF ? 250; DRPSAMF ? 250.
Ms. Gagnon advised the patient to go to the emergency room.

PSAMF ? 250;

DRPSAMF ? 250. When Dr. Stulc arrived, he said that -the whiner baby is in the
emergency room.? PSAMF ? 250; DRPSAMF ? 250. When Ms. Daigle told Dr.
Stulc and she and Ms. Gagnon had sent the patient to the emergency room because
of what she had told them, Dr. Stulc replied that was ridiculous. PSAMF ? 250;
DRPSAMF ? 250.
On November 16, 2007, Dr. Stulc examined a patient for removal of an
abscess on her arm. PSAMF ? 251; DRPSAMF ? 251. After he examined her, he

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directed that she be scheduled for removal of the abscess during the next week and,
after she left, he said that -he could have done the removal that day, but we needed
to get the maximum money for visits to the office.? PSAMF ? 251; DRPSAMF ?
251.
On November 20, 2007, Dr. Stulc was again late for his appointments and
Ms. Daigle and Ms. Gagnon rearranged his schedule. PSAMF ? 252; DRPSAMF ?
252. When he arrived, he noticed that his last patient was scheduled for 3:30 p.m.
and asked Ms. Daigle to see if the patient could come in early. PSAMF ? 252;
DRPSAMF ? 252.

The patient arrived at the office at 2:15 p.m. and was

immediately prepped and made ready for the procedure. PSAMF ? 252; DRPSAMF
? 252. Dr. Stulc was notified that the patient was ready at 2:20 p.m. but he was at
his computer and on the phone with his cellular company, trying to have his phone
repaired. PSAMF ? 252; DRPSAMF ? 252. When Ms. Daigle glanced into his
office, she observed pornography on his computer screen. PSAMF ? 252; DRPSAMF
? 252. Dr. Stulc did not enter the procedure room until 3:00 p.m. PSAMF ? 252;
DRPSAMF ? 252. Ms. Daigle reported this conduct to Mr. Leadbetter and she
requested a meeting. PSAMF ? 253; DRPSAMF ? 253. The meeting never took
place because it was overtaken by the events of November 21, 2007. PSAMF ? 253;
DRPSAMF ? 253.
i.

November 20, 2007: Operational Concerns

On or about November 20, 2007, Ms. Daigle emailed Mr. Leadbetter,
describing several operational issues of concern with Dr. Stulc and the general
surgery office. DSMF ? 78; PODSMF ? 78. These issues included claims that Dr.
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Stulc did not always answer his pages, that he was making patients wait to see
him, and that he was not a team player.

DSMF ? 78; PODSMF ? 78.

Mr.

Leadbetter shared the email with Mr. Kempton and a meeting was scheduled for
Tuesday, November 27, 2007 to discuss these concerns. DSMF ? 79; PODSMF ? 79.
But the November 27, 2007 never happened because by then, Redington-Fairview
had placed Dr. Stulc on administrative leave. DSMF ? 80; PODSMF ? 80.
j.

November 21, 2007: The Exam of "Jane Doe" and
the PERTS Report

On November 21, 2007, two Operating Room (OR) Nurses reported to
Gretchen Keaney, the OR manager at Redington-Fairview, that, prior to a surgical
procedure, Dr. Stulc had examined a patient's rectal and vaginal area without
wearing gloves while the patient was under general anesthesia.

DSMF ? 85;

PODSMF ? 85; PSAMF ? 285; DRPSAMF ? 285. Ms. Keaney reported the incident
to Sherry Rogers, the Chief Nursing Office at Redington-Fairview. DSMF ? 86;
PODSMF ? 86. Although Dr. Stulc violated standard precautions and infection
control practices, a physical examination was appropriate before surgery. DSMF ??
87-88; PODSMF ?? 87-88. The nursing staff held the view that Dr. Stulc had
violated Jane Doe while she was about to have surgery and they were extremely
uncomfortable witnessing Dr. Stulc perform this examination.26 PSAMF ? 287;
DRPSAMF ? 287.
Ms. Rogers reported the incident to Dr. Renfrew, who told Dr. Stulc he was
never to do that again.

DSMF ? 89; PODSMF ? 89.

At Ms. Rogers'

Redington-Fairview raised an evidentiary objection to Plaintiff's additional material fact
paragraph 287. DRPSAMF ? 287. The Court overrules the Hospital's objection.
26

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recommendation, Redington-Fairview prepared a Patient Event Reporting and
Tracking System (PERTS) report regarding the incident.

DSMF ?? 90-91;

PODSMF ?? 90-91. A PERTS report is a system in place at Redington-Fairview to
document, report, trend, and handle unexpected events or events that could have
happened. DSMF ? 91; PODSMF ? 91. The PERTS report did not address sexual
misconduct, but addressed the doctor's failure to properly glove himself during the
examination. DSMF ? 92; PODSMF ? 92. According to Redington-Fairview policy,
a PERTS report, like the one involving Dr. Stulc, does not warrant administrative
leave, disciplinary action, or termination.27 PSAMF ?? 312-14; DRPSAMF ?? 312-
14.
Ms. Daigle viewed the incident as sexual abuse. PSAMF ? 289; DRSAMF ?
289. She recognized the patient as having been an 18 year old female, the same
patient whose buttocks Dr. Stolc had patted in the office. PSAMF ? 289; DRSAMF
? 289. These incidents made Ms. Daigle fear allowing Dr. Stulc to examine female
patients.28 PSAMF ? 292; DRPSAMF ? 292. At no time did Redington-Fairview
notify the patient who was the subject of the PERTS report. PSAMF ?? 307, 311;

Ms. Daigle asserts that under Redington-Fairview policy, the conduct underlying the PERTS
report did not warrant administrative leave, discipline, or termination. PSAMF ?? 312-14.
Redington-Fairview posited a qualified response, noting that the record support--deposition
testimony of Mr. Willett--was that a PERTS report in general did not warrant such action.
DRPSAMF ?? 312-14. The Court has reviewed the cited deposition testimony of Mr. Willett and
concludes it is unclear whether he was saying that the conduct underlying the PERTS report in Dr.
Stulc's case did not warrant administrative action against the doctor or saying that PERTS reports
in general never trigger administrative action against physicians. The Court has therefore quoted
the actual question to which Mr. Willett responded.
28 Redington-Fairview objects to this statement on the ground that because Dr. Stulc never worked
at the Hospital after November 21, 2007, Ms. Daigle could not have been placed in such fear.
DRPSAMF ? 292. The Court overrules the Hospital's objection. Ms. Daigle could not have known as
of November 21, 2007 whether Dr. Stulc was going to be allowed to remain on the RedingtonFairview Medical Staff and whether, if he left, he would be allowed to return.
27

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DRSAMF ?? 307, 311.

PageID #: 1462

Redington-Fairview did not notify the National

Practitioners Data Bank or state authorities about the events underlying the
PERTS report; it did later report Dr. Stulc to the Maine Board of Licensure in
Medicine. PSAMF ?? 308-10; DRPSAMF ?? 308-10.
If a nurse at Redington-Fairview has a sexual harassment complaint, the
Hospital protocol dictates that she would go to her direct supervisor, who would
then contact Deborah Buckingham, the Director of Human Resources. PSAMF ?
320; DRPSAMF ? 320. Ms. Buckingham was not made aware of the PERTS report
against Dr. Stulc.29 PSAMF ? 322; DRPSAMF ? 322.
k.

November 21, 2007: Pornographic Images and the
Hospital's Response

On November 21, 2007, Ms. Daigle saw inappropriate images of naked
women on Dr. Stulc's computer at the general surgery office. DSMF ? 65; PODSMF
? 65. Specifically, when she arrived at work at 8:00 a.m., she was required to
download dictation from Dr. Stulc from the previous day that was on his computer.
PSAMF ? 254; DRPSAMF ? 254. When she moved the mouse, an image appeared
29

Plaintiff's additional material fact paragraph 322 states:
Deborah Buckingham was not made aware of the PERTS report against Dr. Stulc for
sexual misconduct, despite the fact that two nurses felt he had -violated? the young
female patient in their presence, which made them uncomfortable.

PSAMF ? 322. Redington-Fairview objected on the ground that the statement is not supported by
the record reference. DRPSAMF ? 322. The Court agrees with Redington-Fairview. The cited
testimony from Ms. Buckingham is:
Q. Okay. Were you made aware of a PERT's report against Dr. Stulc?
A. No, I was not.
DSMF Attach. 3, Dep. of Deborah Buckingham at 26:4-6. The Court limited the statement to the
contents of the cited record evidence. The remainder of Plaintiff's additional material fact paragraph
322 is argument.

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PageID #: 1463

on the screen that showed a woman clad only in a johnny gown, sitting on a table
under the caption, -Casual Sex.? PSAMF ? 254; DRPSAMF ? 254. Recalling the
-zero tolerance? directive, she called Mr. Leadbetter and asked him to come to the
office. PSAMF ? 254; DRPSAMF ? 254. Mr. Leadbetter observed this image and
when he scrolled down the side of the screen, there were several images of nude
women and pornography. PSAMF ? 254; DRPSAMF ? 254.
After Mr. Leadbetter viewed the images, he quickly called the Hospital and
told Ms. Daigle and Ms. Gagnon to lock the door and meet him there. DSMF ? 68;
PODSMF ? 68. Ms. Daigle and Ms. Gagnon met Mr. Leadbetter, Ms. Buckingham,
Mr. Kempton, and Mr. Willett in Mr. Willett's office the same day. DSMF ? 69;
PODSMF ? 69. At this meeting, Ms. Daigle and Ms. Gagnon not only reported that
Dr. Stulc had been looking at pornography on his computer but also voiced concerns
about his interactions with patients. DSMF ? 70; PODSMF ? 70. They mentioned
that while Dr. Stulc was in his office viewing pornography, he was making patients
wait for long periods of time. PSAMF ? 254; DRPSAMF ? 254.
During this November 21, 2007 meeting, Ms. Daigle and Ms. Gagnon
reported that things had been going well up to approximately one week before this
meeting.30 DSMF ? 71; PODSMF ? 71. Ms. Gagnon and Ms. Daigle were asked if

Defendant's material fact paragraph 71 contains what must be a typographical error, referring to a
November 21, 2010 meeting. DSMF ? 71. The Court assumes the reference is to the November 21,
2007 meeting and has amended the paragraph. Redington-Fairview supported this statement with a
record reference to Mr. Kempton's deposition. The actual testimony from Mr. Kempton was that
-they,? not Ms. Daigle alone, had reported that -things had been going well up until like a week
before.? DSMF Attach. 2, Dep. of Dana Kempton at 19:21-20:1 (Docket # 64). To be accurate, the
Court amended the paragraph to reflect Mr. Kempton's actual testimony. Ms. Daigle denied this
statement, pointing to Kempton Exhibits 7-8 and Mr. Kempton's deposition at page 81, line 19
through page 84, line 12. PODSMF ? 71. The cited portion of the Kempton deposition is
30

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PageID #: 1464

they would meet with a counselor who had seen Dr. Stulc after the first reported
incident, and they agreed to do so. PSAMF ? 255; DRPSAMF ? 255. Mr. Willett
told Ms. Gagnon and Ms. Daigle not to -jump ship? and that they would address the
situation, and Ms. Gagnon and Ms. Daigle agreed to finish out the day so that
patients who had scheduled appointments could be seen.

DSMF ?? 72-73;

PODSMF ?? 72-73. Dr. Stulc remained in the office the rest of the day, seeing
patients; the parties disagree as to whether this was the last day he worked at
Redington-Fairview.31

DSMF ?? 74-75; PODSMF ?? 74-75.

On Monday,

November 26, 2007, Redington-Fairview placed Dr. Stulc on administrative leave
and prohibited him from returning to the general surgery office.
PODSMF ? 81.

DSMF ? 81;

When it placed Dr. Stulc on administrative leave, Redington-

Fairview did not inform the Maine Board of Licensure in Medicine of that fact.
PSAMF ? 315; DRPSAMF ? 315.
l.

Dr. Stulc's Administrative Leave

After Redington-Fairview placed Dr. Stulc on administrative leave, Mr.
Kempton had the Redington-Fairview Director of Information Technology remove

indecipherable. The Kempton deposition exhibits imply that Ms. Daigle's and Ms. Gagnon's
problems with Dr. Stulc had started before the week before November 21, 2007 but do not contradict
Mr. Kempton's assertion that the two women told him at the November 21, 2007 meeting that things
had been going well until about a week before. The Court deems Redington-Fairview's material fact
paragraph 71 admitted.
31 Redington-Fairview says that November 21, 2007 was the last day Dr. Stulc worked there. DSMF
? 75. The Hospital says that the office was closed on November 22 and 23 for Thanksgiving and that
he was placed on administrative leave on November 26, 2007, the next day he was scheduled to
work. DSMF ? 77. Ms. Daigle says that she believes he performed surgery on November 26, 2007.
PODSMF ? 75. Redington-Fairview objects to Ms. Daigle's qualified response on the ground that
Ms. Daigle's qualified response failed to make a record citation in accordance with Local Rule 56(c).
DRPOSMF at 5. Redington-Fairview is correct; nevertheless, since whether Dr. Stulc left the
Hospital on Wednesday November 21 or Monday November 26, 2007 is not decisive, the Court has
included reference to both positions.

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PageID #: 1465

the computer from Dr. Stulc's office and bring it to his office. DSMF ? 93; PODSMF
? 93. During the week of November 26, 2007, Mr. Kempton viewed nude images on
Dr. Stulc's computer but no pornography. DSMF ? 94; PODSMF ? 94. After Ms.
Daigle's and Ms. Gagnon's complaints and after viewing the second batch of sexual
images, Mr. Kempton conducted no further investigation and concluded that Dr.
Stulc's conduct had been unprofessional. PSAMF ?? 278-279; DRPSAMF ?? 278-
279. Mr. Kempton learned that to bring Dr. Stulc back to Redington-Fairview, Dr.
Stulc would have to have a mentor, would have to make full disclosure to the entire
medical community, and would have to maintain constant counseling. PSAMF ?
280; DRPSAMF ? 280.
Although Ms. Daigle never observed the scope of the sexual images on Dr.
Stulc's computer, the Redington-Fairview forensic investigation of the computer
revealed numerous additional images of naked women, resulting in a discovery
document that showed about four images of naked women on every page of an 847
page exhibit. PSAMF ? 263; DRPSAMF ? 263.
On November 26, 2007, Ms. Daigle and Ms. Gagnon met separately with Phil
Smith, Ph.D., a clinical psychologist, and told him about their experiences with Dr.
Stulc. 32 PSAMF ? 256; DRPSAMF ? 256. Dr. Smith told Ms. Daigle that no one
should be subjected to such behavior and it would be his recommendation to
Redington-Fairview to immediately remove Dr. Stulc from the Hospital. PSAMF ?
Redington-Fairview objected to the portion of Plaintiff's additional material facts paragraph 256
that described what she told Dr. Smith on the ground that Ms. Daigle did not have the requisite
personal knowledge to make the statements. DRPSAMF ? 256. The Court overrules the objection.
The information Ms. Daigle gave to Dr. Smith is not received for the truth, but to explain Dr. Smith's
response.
32

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PageID #: 1466

256; DRPSAMF ? 256.
As of November 26, 2007, Redington-Fairview would have had the
contractual right to terminate Dr. Stulc's employment contract. PSAMF ?? 274,
316; DRPSAMF ?? 274, 316.

Instead of terminating Dr. Stulc at that point,

Redington-Fairview consulted with the group within the Maine Medical Association
that deals with impaired physicians.

PSAMF ? 275; DRPSAMF ? 275.

After

consulting a psychologist and the Maine Medical Association's Physician's Health
Program, Mr. Willett and Mr. Kempton urged Dr. Stulc to enroll in a treatment
program in Kansas City, Missouri and Dr. Stulc attended the recommended
program.33

DSMF ?? 95-97; PODSMF ?? 95-97.

Redington-Fairview

management made it clear to Dr. Stulc that any chance of continued employment at
the Hospital depended on his enrolling in such a program, but they did not
guarantee his continued employment if he decided to attend.

PSAMF ? 276;

DRPSAMF ? 276. During this period, Redington-Fairview placed Dr. Stulc on paid
leave. PSAMF ? 317; DRPSAMF ? 317.
Although Redington-Fairview management thought there was something
wrong with Dr. Stulc, they never received a formal diagnosis from him. PSAMF ?
265; DRPSAMF ? 265. During the time that Redington-Fairview was considering
allowing Dr. Stulc to return, the Hospital took into account that he was a gifted
surgeon, that it was unusual to recruit a surgeon with such gifts to a rural hospital,
Redington-Fairview posited that -Dr. Stulc attended a treatment program in Kansas City,
Missouri.? DSMF ? 97. Ms. Daigle's response was solely: -Not admissible, hearsay.? PODSMF ? 97.
In positing this fact, Redington-Fairview cited the deposition testimony of Dana Kempton, who
testified that he had conferred with the director of the clinic and confirmed that Dr. Stulc was
attending. DSMF ? 97. The Court overrules Ms. Daigle's objection.
33

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PageID #: 1467

that it might be worth the time and expense to give him the chance to turn the
situation around, but that to do so would require mentoring, disclosure, and
counseling. PSAMF ? 281; DRPSAMF ? 281. Redington-Fairview never formally
determined whether to bring Dr. Stulc back since through Ms. Daigle, it learned
information about his employment at Trover Regional Medical Center (-Trover?),
where Dr., Stulc had previously worked, that caused the Medical Staff to reevaluate
its initial credentialing of Dr. Stulc. DSMF ? 106; PODSMF ? 106; PSAMF ? 283;
DRPSAMF ? 283.
During Dr. Stulc's administrative leave, the Hospital informed Ms. Daigle
that the doctor was -unavailable.?34 DSMF ? 98; PODSMF ? 98. After Dr. Stulc
left in November, 2007 until February 2008, locum tenens surgeons worked in the
general surgery office and during this time, things progressed smoothly. DSMF ??
103-04; PODSMF ?? 103-04.
m.

Events Leading to Dr. Stulc's Resignation

On approximately January 28, 2008, Deborah Buckingham received a letter
from Daniel Bates, attorney for Ms. Daigle, advising her that he had filed a charge
of sexual harassment on Ms. Daigle's behalf against the Hospital. DSMF ? 106;
PODSMF ? 106.

Mr. Bates enclosed documents he had received from Trover

reflecting problems Dr. Stulc had experienced there. DSMF ? 106; PODSMF ? 106.
Ms. Buckingham shared the Trover attachment with Mr. Willett; they were each

Redington-Fairview says it informed Ms. Daigle that Dr. Stulc had been placed on administrative
leave. DSMF ? 98. Ms. Daigle denies this and says that she was only told he was -unavailable? and
more particularly, was never informed whether he might be returning to work. PODSMF ? 98. The
Court has recounted the facts in the light most favorable to Ms. Daigle.
34

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PageID #: 1468

disturbed about this new information. DSMF ?? 108-09; PODSMF ?? 108-09.
Although Dr. Stulc had not yet resigned from the Medical Staff at RedingtonFairview, he was no longer practicing there. DSMF ? 113; PODSMF ? 113.
After reviewing the Trover documents, Mr. Willett became concerned about
whether Dr. Stulc had been forthright in his Redington-Fairview application for
privileges. DSMF ? 114; PODSMF ? 114. Dr. Renfrew submitted a request to the
President of the Redington-Fairview Medical Staff to appoint an ad hoc committee
to investigate the matter, and the President of the Medical Staff appointed an ad
hoc committee. DSMF ?? 120-21; PODSMF ?? 120-21. The ad hoc committee met
a few times in March 2008, both before and after meeting Dr. Stulc, but on April 17,
2008, before the Medical Staff made a recommendation, Dr. Stulc resigned his
Medical Staff membership and Hospital privileges at Redington-Fairview, an act
that also terminated his Hospital employment. DSMF ?? 121-22, 125; PODSMF
?? 121-22, 125.

On August 4, 2009, Redington-Fairview reported Dr. Stulc's

voluntary resignation to the Maine Board of Licensure in Medicine, referring
specifically to the fact that he resigned while under investigation for a failure to be
forthright in his application for Medical Staff membership. 35

PSAMF ? 303;

The parties disagree about whether Redington-Fairview reported the necessary information about
Dr. Stulc to the appropriate authorities. PSAMF ? 303; DRPSAMF ? 303. Even viewing the
evidence in the light most favorable to Ms. Daigle, the record is not sufficient for the Court to include
a statement about the Hospital's compliance with the Health Care Quality Improvement Act and its
implementing regulations. The Court has set forth what appears as a matter of record on this point.
The parties also disagree about whether Dr. Stulc applied for a license to practice medicine in the
commonwealth of Massachusetts. PSAMF ? 304, 470; DRPSAMF ? 304, 470. Although Ms. Daigle
asserts he did so, the Court cannot conclude that this is correct based on the cited evidence. Ms.
Daigle points first to portions of Mr. Kempton's deposition that do not confirm the Massachusetts
application. She then references a deposition exhibit to Mr. Kempton's deposition. Kempton Dep.
Ex. 11. The exhibit is a Maine Board of Licensure of Medicine form, which was notarized in
35

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PageID #: 1469

DRPSAMF ? 303.
n.

Post-November 26, 2007 Hostility Against Tanya
Daigle

After Redington-Fairview placed Dr. Stulc on administrative leave, Ms.
Daigle was told he was on administrative leave but to tell patients only that he was
-unavailable.?36 PSAMF ?? 323-26; DRPSAMF ?? 323-26. Redington-Fairview's
failure to inform Ms. Daigle that Dr. Stulc had been discharged or would not
otherwise return to the Hospital caused Ms. Daigle concern because if Dr. Stulc
returned, she was worried how he would react to her reporting on him and how she

Massachusetts. The exhibit does not support the contention that Dr. Stulc applied for a license to
practice medicine in Massachusetts.
36 The parties dispute whether the Hospital told Ms. Daigle that Dr. Stulc was on administrative
leave. PSAMF ? 323; DRPSAMF ? 323. Citing Mr. Willett's testimony, Ms. Daigle contends she was
only told that he was -unavailable.? PSAMF ? 323 (citing DSMF Attach. 1 (Willett Dep.) at 64:23-
67:7). Mr. Willett testified that Ms. Daigle contacted him and asked him what she should tell
patients about Dr. Stulc and Mr. Willett told her to tell patients only that Dr. Stulc was
-unavailable.? Willett Dep. at 65:5-9. He confirmed that all that was said to Ms. Daigle was that Dr.
Stulc was -unavailable.? Id. at 66:20-25. However, he also said that he was not aware what Mr.
Leadbetter might have told Ms. Daigle. Id. at 67:1-7. This testimony seems to justify Ms. Daigle's
assertion that she was only told that Dr. Stulc was -unavailable.? However, as Redington-Fairview
points out, Ms. Daigle's position contradicts her own testimony. DRPSAMF ? 323 (citing DSMF
Attach. 10, Dep. of Tanya Daigle at 69:1-12). In her testimony, Ms. Daigle acknowledged that she
knew Dr. Stulc was on administrative leave:
Q. Did Mr. Leadbetter talk to you at all about the photos or the situation at any time
after that day?
A. Nope. They just said that they would be addressing it and that we were to tell
people that he - - Dr. Stulc was temporarily unavailable.
Q. And was it your understanding that Dr. Stulc was on some sort of leave at that
time?
A. Yes.
Q. Had you been told he was on an administrative leave?
A. Yes.
Daigle Dep. at 69:1-12. The Court takes Ms. Daigle at her word and views the Plaintiff's contention
that she only knew that Dr. Stulc was unavailable, not that he was on administrative leave, as an
attempt to generate an issue where none exists. Ms. Daigle's overall contention--that she did not
know whether Dr. Stulc would return--remains valid either way.

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would react to his renewed examinations of female patients.37

PageID #: 1470

PSAMF ? 327;

DRPSAMF ? 327. During the time between November 26, 2007 and April 17, 2008,
Dr. Stulc's personal items remained in his office, within the office Ms. Daigle
managed, again leading her to believe that he would be returning to work in her
office. PSAMF ? 328; DRPSAMF ? 328. The fact that Redington-Fairview had not
discharged Dr. Stulc for his sexual misconduct and for his treatment of employees
and patients and the thought that he might be coming back to work and carry out
threats against Ms. Daigle and her job, caused her such anxiety that she went to
her primary care physician, Dr. Lanoi, who is a Redington-Fairview employee, and
he prescribed anti-anxiety medication for her and told her to see a counselor. 38
PSAMF ? 329; DRPSAMF ? 329. Ms. Daigle began to see a counselor in December
2007 and her complaint to the counselor was that her nerves were in terrible shape
because she did not know when Dr. Stulc would be returning and could not believe
that Redington-Fairview had not fired him for all his misconduct. PSAMF ? 329;
DRPSAMF ? 329.
In November or December 2007, Redington-Fairview hired Jessica Campbell
to assist the office where Ms. Daigle and Ms. Gagnon worked.

PSAMF ? 330;

DRPSAMF ? 330. After her five-week performance review by Mr. Leadbetter in
Ms. Daigle has posited paragraph 327 in an argumentative fashion, contending that these facts
amount to the continuation of a hostile work environment for her. PSAMF ? 327. The Hospital has
properly objected on the ground that the statement is a conclusory argument, not a statement of fact.
DRPSAMF ? 327. The Court sustains the Hospital's objection to an extent. Instead, the Court has
rewritten the statement to reflect Ms. Daigle's stated concern about Dr. Stulc's potential return,
which is important to her defense of this motion, and is consistent with her supporting affidavit. See
Aff. of Tanya Daigle ? 79 (Docket # 72).
38 Redington-Fairview denied the first portion of this statement on the ground that it is in the nature
of argument, not a statement of facts. DRPSAMF ? 329. The Court disagrees, overrules the
Hospital's objection, and treats the paragraph as admitted for purposes of the motion.
37

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PageID #: 1471

late December 2007 or early January 2008, Ms. Campbell returned shaken and
annoyed.39 PSAMF ? 330; DRPSAMF ? 330. She informed Ms. Daigle that Mr.
Leadbetter had questioned her about both Ms. Daigle and Ms. Gagnon and
specifically asked her about what they had told her about Dr. Stulc. PSAMF ? 330;
DRPSAMF ? 330. Ms. Campbell responded that they had only told her that Dr.
Stulc was not available. PSAMF ? 331; DRPSAMF ? 331. He also asked whether
Ms. Daigle had ever made her feel intimidated. PSAMF ? 330; DRPSAMF ? 330.
Ms. Campbell told Mr. Leadbetter that Ms. Daigle had not made her feel
intimidated. PSAMF ? 331; DRPSAMF ? 331. Ms. Daigle believed that during his
performance evaluation of Ms. Campbell, Mr. Leadbetter was seeking information
to use against her. PSAMF ? 330; DRPSAMF ? 330.
After January 2008, Ms. Daigle's mental distress and trauma were such that,
every morning at work, she checked the internet to see whether Dr. Stulc was still
licensed to practice medicine in the state of Maine, concerned that he might return
to the Hospital, renew his unwelcome and hostile conduct and cause her employer
to act against her.40 PSAMF ? 332; DRPSAMF ? 332. From January 2008 until her
termination on November 12, 2008, the internet indicated that Dr. Stulc retained
his license to practice medicine in the state of Maine, a fact that caused Ms. Daigle

Redington-Fairview moved to strike this and other statements in Plaintiff's additional material
facts paragraphs 330 and 331. DRPSAMF ?? 330-31. The Court denies the Hospital's motions to
strike in part. What Ms. Campbell told Ms. Daigle about Mr. Leadbetter's performance evaluation is
not admissible for the truth but for the impact it had on Ms. Daigle. The Court strikes the last
sentence of Plaintiff's additional material fact paragraph 331 as argument, not fact.
40 Redington-Fairview denied this paragraph and moved to strike it on the ground that it is
argument, not fact. DRPSAMF ? 332. The Court denies the Hospital's motion to strike and
considered its denial of Ms. Daigle's paragraph not to be in good faith. The Court deems the
statement in paragraph 332 of Plaintiff's additional material facts admitted.
39

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continuing stress, anxiety, and fear.41 PSAMF ? 333; DRPSAMF ? 333. Following
the incident involving Jane Doe, Ms. Daigle experienced distress, anxiety, and
mental anguish from the prospect of having to place female patients in positions of
vulnerability and peril.42 PSAMF ? 335; DRPSAMF ? 335.43 In June 2009, the
internet confirmed that Dr. Stulc's license to practice medicine in the state of Maine
was suspended or revoked. PSAMF ? 365; DRPSAMF ? 365.
o.

Redington-Fairview Warns Tanya Daigle

After November 26, 2007, when Redington-Fairview placed Dr. Stulc on
administrative leave, Ms. Daigle and Ms. Gagnon were moving supplies to a closet

Redington-Fairview denied Ms. Daigle's additional material fact paragraph 333 and moved to
strike on the ground that it is argument, not fact, and on the additional ground that what the
internet may have said is inadmissible hearsay. DRPSAMF ? 333. The Court strikes so much of
paragraph 333 as states as a fact that Ms. Daigle's discharge was wrongful and pretextual on the
ground that these statements are argument, not fact. The Court denies the Hospital's motion to
strike what the internet revealed. The statement is not offered for the truth but for its impact on
Ms. Daigle. The Court deems the statement about what the internet showed to have been admitted.
Redington-Fairview also moved to strike paragraph 334 on the ground that it is argument, not fact.
The Court agrees and strikes Plaintiff's Statement of Additional Material Fact paragraph 334.
42 Redington-Fairview denied this statement and moved to strike it based on Ms. Daigle's description
of Dr. Stulc's examination as an assault. DRPSAMF ? 335. The Court agrees that the description of
Dr. Stulc's examination as an assault is in the nature of argument, not a factual contention, and
strikes that portion of the statement. However, the remainder of the statement is proper and,
viewed in the light most favorable to Ms. Daigle, the Court accepts the statements for purposes of
this motion.
43 Plaintiff's Statement of Material Fact paragraph 336 reads:
41

After Plaintiff's internal Complaints against Stulc, her complaint to the Board of Licensure
in Medicine, her Charge with the Maine Human Rights Commission and EEOC, [RedingtonFairview] retaliated against her by creating sustained hostility towards her, ostracization,
stripping her of her job duties as office manager, disciplining her by a warning that had no
basis in fact nor in the policies of [the Hospital] and ultimately discharging Ms. Daigle from
employment and engaging in dishonesty in order to deprive her of her rights under the
Unemployment Compensation Statutes of the State of Maine.
PSAMF ? 336. Ms. Daigle cites as record support her own affidavit, which tracks this statement. Id.
(citing Daigle Aff. ? 159). Redington-Fairview objects on the ground that paragraph 336 is
argument, not fact. The Court agrees with Redington-Fairview. The Court strikes Plaintiff's
Statement of Additional Material Fact paragraph 336 in its entirety.

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and came across several boxes of paperwork and medical manuals and books.44
DSMF ? 126; PODSMF ? 126. There was an open box in the closet with papers
strewn both inside and outside the box in plain view. PSAMF ? 337; DRPSAMF ?
337.

As Ms. Daigle began organizing the material, she observed that some

documents mentioned issues Dr. Stulc had with Trover.

DSMF ?? 127-28;

PODSMF ?? 127-28. Specifically, the documents revealed that while Dr. Stulc was
at Trover, he had preyed upon female patients and employees, had created a
sexually hostile environment for females, and engaged in sexual and discriminatory
misconduct that required Trover twice to suspend his Medical Staff privileges and
finally to terminate him.45 PSAMF ? 337; DRPSAMF ? 337.
Ms. Daigle retrieved and photocopied certain documents, including the
Trover Hospital documents, including assertions that Dr. Stulc had engaged in
inappropriate behavior at Trover. DSMF ? 128; PODSMF ? 128. Ms. Daigle gave
copies of these documents to her attorney without initially telling the Hospital
administration about them. Ms. Daigle and Ms. Gagnon agreed that Ms. Daigle
should seek legal counsel because they feared for their jobs if they reported this

In her additional material fact paragraph 337, Ms. Daigle claims she was asked to clean out the
closet where she found Dr. Stulc's personal papers. PSAMF ? 337. Redington-Fairview objects,
pointing out that Ms. Daigle testified she was asked to move supplies into that closet. DRPSAMF ?
337. The Court reviewed Ms. Daigle's testimony on this point. Daigle Dep. 85:16-22. The Court
agrees with Redington-Fairview that Ms. Daigle testified she was asked to move supplies into the
closet, although it is also logical to infer that if--as Ms. Daigle claimed--the closet was a mess, she
would be also required to clean it up before storing supplies there. The Court overrules RedingtonFairview's objection.
45 Redington-Fairview moves to strike and denies this paragraph on evidentiary grounds.
DRPSAMF ? 337. The Court denies the Hospital's motion to strike and deems the paragraph
admitted.
44

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additional wrongdoing to the Redington-Fairview administration.46 PSAMF ? 338;
DRPSAMF ? 338. Ms. Daigle also reviewed the Hospital's Confidentiality Policy
and concluded that it did not apply to these documents since the documents did not
refer to any Redington-Fairview patients or any Redington-Fairview proprietary
information.47

PSAMF ?? 339-40; DRPSAMF ?? 339-40.

Her attorney also

reviewed the Redington-Fairview Confidentiality Policies and concluded that
providing the documents to the Maine Board of Licensure in Medicine would not
violate any Redington-Fairview policies.48 PSAMF ? 341; DRPSAMF ? 341.
Her attorney later provided the documents to Redington-Fairview, and on
February 6, 2008, Ms. Daigle, through her attorney, notified Redington-Fairview
that she disclosed the Stulc information to the Maine Board of Licensure in
Medicine -pursuant to the immunities and protections of 42 U.S.C. ? 11111(a)(2)
and 24 M.R.S.A. ?? 2505 and 2511.?
PSAMF ? 368; DRPSAMF ? 368.

DSMF ?? 129-30; PODSMF ?? 129-30;

In the February 6, 2008 letter, Ms. Daigle's

attorney quoted a provision in Dr. Stulc's application to the Maine Board of

Redington-Fairview denied this statement based on other testimony in Ms. Daigle's deposition,
which it contends contradicts this statement. DRPSAMF ? 338. The Court reviewed the other
testimony and concludes it does not clearly contradict this statement. Accordingly, the Court deems
this paragraph admitted.
47 Redington-Fairview moved to strike and denied the statement in paragraph 339 on the ground
that Ms. Daigle is not competent to interpret the Hospital's Confidentiality Policy. DRPSAMF ? 339.
Ms. Daigle is not claiming, however, that her interpretation of the Confidentiality Policy was
definitive. She is only explaining why she handed over the documents to her attorney. The Court
denies the Hospital's motion to strike and deems this paragraph to have been admitted.
48 Redington-Fairview moves to strike this paragraph and denies it on the ground that it is
inadmissible hearsay. DRPSAMF ? 341. The Court disagrees and denies the motion to strike and
deems the paragraph admitted. The paragraph is not being considered for its truth but to explain
Ms. Daigle's conduct.
46

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Licensure in Medicine that authorized the release of his information to the Board.49
PSAMF ? 369; DRPSAMF ? 369. In Dr. Stulc's application to the Maine Board of
Licensure in Medicine, he swore out a statement that affirmed that if he furnished
any false information in the application, such act shall constitute cause for denial,
suspension or revocation of his license to practice medicine and surgery in the state
of Maine.50 PSAMF ? 371; DRPSAMF ? 371.
Ms. Daigle's attorney reviewed these documents, Dr. Stulc's application for
medical licensure in the state of Maine, and certain laws establishing a privilege for
filing a complaint against a doctor who had obtained his state of Maine medical
license by fraud or perjury. PSAMF ? 342; DRPSAMF ? 342. Ms. Daigle's attorney
advised her that (1) from his review of Dr. Stulc's application to practice medicine in
Maine, combined with the documents showing the suspensions for sexual
misconduct and anger-related misconduct against employees and patients at
Trover, Dr. Stulc had lied to obtain his license to practice medicine in Maine; (2)
that Dr. Stulc had waived his rights to any hospital that offered him a position or
that was considering doing so; and that (3) both state and federal law protected
people who reported doctors who had acted inappropriately to the Board of

Redington-Fairview denies and moves to strike Plaintiff's additional material fact paragraph 370
on the ground that it is argument, not fact. DRPSAMF ? 370. The Court agrees and strikes
Plaintiff's additional material fact paragraph 370. The statement says that Ms. Daigle's attorney
provided Redington-Fairview with evidence that Dr. Stulc lied in this application to the Maine Board
of Licensure in Medicine. PSAMF ? 370. But it does not say what that evidence was. As such, the
statement is not evidence but a view of the significance of the evidence; in effect, argument.
50 Redington-Fairview objects on foundational grounds to this paragraph. DRPSAMF ? 371. The
Court overrules that objection. Redington-Fairview objects to the second sentence of Plaintiff's
additional material fact paragraph 371 on the ground that it is argumentative. Id.; PSAMF ? 371.
The Court sustains the Hospital's objection to the second sentence of Plaintiff's additional material
fact paragraph 371 and strikes that sentence.
49

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Licensure of Medicine.51 PSAMF ? 343; DRPSAMF ? 343.
Ms. Buckingham and Mr. Leadbetter met with Ms. Daigle to discuss the fact
she had retrieved, copied, and removed documents from the Hospital without
informing management.52 DSMF ? 131; PODSMF ? 131. On February 18, 2008,
the Hospital issued Ms. Daigle a written warning because she went through Dr.
Stulc's personal belongings without authority, copied sensitive documents, and
removed them from the Hospital without notifying the Hospital administration.
DSMF ? 132; PODSMF ? 132. On February 20, 2008, Redington-Fairview issued
the annual performance evaluation for Ms. Daigle and she received a generally
favorable evaluation, except for two criteria involving confidentiality based on her
handling of Dr. Stulc's documents.53 DSMF ? 137; PODSMF ? 137.
Ms. Daigle considers Redington-Fairview's actions in imposing discipline
against her to be false and contrived.54 PSAMF ? 353; DRPSAMF ? 353. She

51Redington-Fairview

moves to strike this statement and denies it on the ground that it is
inadmissible hearsay. DRPSAMF ? 343. The Court disagrees and denies the motion to strike and
deems the statement admitted. The statement is not being considered for its truth but to explain
Ms. Daigle's conduct.
52 Redington-Fairview moves to strike three sentences in Plaintiff's additional material fact
paragraph 372 on the ground that they are argumentative. DRPSAMF ? 372; PSAMF ? 372. The
Court agrees and strikes those three sentences. Once those three sentences are struck, the
remaining sentence that Redington-Fairview has no context and the Court has not included it.
53 Redington-Fairview denied Plaintiff's additional material fact paragraph 404 as not supported by
the record citation. PSAMF ? 404; DRPSAMF ? 404. In paragraph 404, Ms. Daigle asserts that the
-finding of the Stulc information was the only reason for Deborah Buckingham giving Tanya Daigle
two ?not met' grades on her performance evaluation.? PSAMF ? 404. The Court agrees with the
Hospital that this paragraph does not properly characterize Ms. Buckingham's testimony. Ms.
Buckingham did not testify that the only reason she gave Ms. Daigle two not met grades was that
she found the Stulc material. She testified that the reason she gave Ms. Daigle the two not met
grades is what Ms. Daigle did with the material after she found it. The Court strikes Plaintiff's
additional material fact paragraph 404.
54 Redington-Fairview denied and moved to strike this paragraph and the statement in paragraph
354 as phrased. DRPSAMF ? 353. The Court agrees with Redington-Fairview that Ms. Daigle has
stated her legal contentions as facts. At the same time, the Court views the statement as Ms.
Daigle's perception of the discipline against her that Redington-Fairview imposed and her perception

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contends that Dr. Stulc had no privacy rights to these documents and that
Redington-Fairview's discipline of her on that basis was pretextual and contrived.
PSAMF ? 354; DRPSAMF ? 354.

The Hospital acknowledges that but for Ms.

Daigle's bringing the Stulc material to Mr. Willett's attention, he would not have
known about Dr. Stulc's dishonesty.55

PSAMF ? 395; DRPSAMF ? 395.

Ms.

Buckingham acknowledged that if Ms. Daigle and Ms. Gagnon had not found the
Stulc information, she may never have known about it.56 PSAMF ? 405; DRPSAMF
? 405. Ms. Daigle told Hospital management that she was only trying to protect the
best interest of the hospital in protecting its female patients from Dr. Stulc's sexual
misconduct, but Redington-Fairview refused to remove the warning from her
personnel file.57 PSAMF ? 356; DRPSAMF ? 356.
Mr. Willett, the Hospital CEO, testified that Ms. Daigle was issued a written
warning because she did not have any right to go through Dr. Stulc's personal
belongings; however, he also said that he would have reported Dr. Stulc to the

of the legitimacy of the discipline. The Court has reframed the statement to narrow its permissible
impact.
55 In her additional material fact paragraphs 392 through 394, Ms. Daigle has framed the
paragraphs in such an argumentative fashion that they add little to the substance of the motion.
PSAMF ?? 392-94. The substance of these facts is, however, found elsewhere and the Court
declines to hunt for contested facts hidden in argument.
56 Redington-Fairview posited a qualified response to Plaintiff's additional material fact paragraph
405 on the ground that it misstates Ms. Buckingham's testimony. PSAMF ? 405; DRPSAMF ? 405.
The Plaintiff says that but for Ms. Daigle's counsel's letter to Ms. Buckingham, the Hospital -never
would have found out about Stulc's past misconduct and dishonesty in order to obtain his license to
practice medicine.? PSAMF ? 405. Ms. Buckingham was asked whether -if it [the Stulc information]
had not been found by Tanya Daigle and Danielle Gagnon, you may never have known about it,
correct?? She answered, -Correct.? Buckingham Dep. 49:14-17. The Court agrees that the
Plaintiff's additional material fact paragraph 405 slightly misstates the record and the Court alters
the statement to conform to the testimony.
57 Redington-Fairview denied and moved to strike the second sentence in Plaintiff's additional
material fact paragraph 356 on the ground that it is in the nature of argument. DRPSAMF ? 356.
The Court agrees and strikes the second sentence of Plaintiff's additional material fact paragraph
356.

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Maine Board of Licensure in Medicine if Ms. Daigle had made the Hospital aware of
these documents before she reported it.58 PSAMF ?? 357, 389; DRPSAMF ?? 357,
389. Ms. Buckingham also confirmed that if Ms. Daigle had not reported Dr. Stulc
to the Board, the Hospital would have done so.59 PSAMF ? 400; DRPSAMF ? 400.
Before the Hospital issued the written warning, Mr. Willett never interviewed Ms.
Daigle about the circumstances under which she found the Trover documents.60
PSAMF ? 390; DRPSAMF ? 390.
Ms. Buckingham admitted that anyone who discovers information should be
able to provide it to the Board of Licensure in Medicine if the information shows
that a doctor lied to obtain a license to practice medicine.61
DRPSAMF ? 408.

PSAMF ? 408;

Ms. Buckingham also acknowledged that if Ms. Daigle had

turned over the Stulc information to her, it would have been appropriate for Mr.

Redington-Fairview denied and moved to strike Plaintiff's statement of additional material fact
paragraph 358 as not supported by the record citation. DRPSAMF ? 358. The Court agrees with the
Hospital that Ms. Daigle's citation of Mr. Willett's deposition testimony does not support the
contents of the statement and that Ms. Daigle's affidavit mischaracterizes his deposition testimony.
The Court grants the Hospital's motion to strike Plaintiff's additional material fact paragraph 358.
Redington-Fairview qualified its response to Plaintiff's additional material fact paragraph 389.
PSAMF ? 389; DRPSAMF ? 389. To obviate any controversy, the Court has consulted and used Mr.
Willett's actual testimony.
59 Redington-Fairview interposed qualified objection to Plaintiff's additional material fact paragraph
400 on the ground that it states that she -reiterated Richard Willett's testimony.? PSAMF ? 400;
DRPSAMF ? 400. The Court agrees with the Hospital that there is no support for the proposition
that Ms. Buckingham was reiterating Mr. Willett's testimony as opposed to offering her own view.
The Court strikes that portion of Plaintiff's additional material fact paragraph 400.
60 Redington-Fairview qualified its response to Plaintiff's Statement of Material Fact paragraph 390.
PSAMF ? 390; DRPSAMF ? 390. To obviate any controversy, the Court has consulted and used Mr.
Willett's actual testimony.
61 Redington-Fairview qualified its response to Plaintiff's additional material fact paragraph 408 on
the ground that Ms. Buckingham added that the reporting individual needs to respect the proper
reporting steps. PSAMF ? 408; DRPSAMF ? 408. This qualification, however, does not deny the
truth of the statement.
58

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Willett to report the information to the Board of Licensure in Medicine.62 PSAMF ?
409; DRPSAMF ? 409. In fact, Ms. Buckingham -absolutely? agreed that it would
have been appropriate for Mr. Willett to have reported the Stulc information to the
Board despite the fact it was confidential.63 PSAMF ? 410; DRPSAMF ? 410. Ms.
Buckingham also stated that it was apparent with the information Ms. Daigle found
that Dr. Stulc had lied to obtain his license to practice medicine. PSAMF ? 429;
DRPSAMF ? 429. Although Ms. Buckingham was thankful that the information
about Dr. Stulc was brought to her attention, she never thanked Ms. Daigle for
doing so.64 PSAMF ? 430; DRPSAMF ? 430.
In finding the material about Dr. Stulc's prior misconduct and in disclosing
the material to the Board of Licensure in Medicine, Ms. Daigle had not violated any
written Redington-Fairview policy.65 PSAMF ?? 391, 402; DRPSAMF ?? 391, 402.
The Redington-Fairview confidentiality policies pertain to patient confidentiality

Redington-Fairview makes a technical qualification to Plaintiff's additional material fact
paragraph 409. PSAMF ? 409; DRPSAMF ? 409. The qualified response does not contradict the
essence of the statement and therefore the Court deems the paragraph admitted.
63 Redington-Fairview interposed a qualified response to Plaintiff's additional material fact
paragraph 410 on the ground that the paragraph did not accurately reflect Ms. Buckingham's
testimony. PSAMF ? 410; DRPSAMF ? 410. The Court has reviewed Ms. Buckingham's testimony,
which Ms. Daigle cited in support of its material fact, and agrees that the Hospital's qualified
response more accurately reflects Ms. Buckingham's testimony and has altered the paragraph to
reflect its record support.
64 Redington-Fairview interposed a qualified response to Plaintiff's additional material fact
paragraph 430 on the ground that Ms. Daigle did not bring the information about Dr. Stulc to Ms.
Buckingham's attention and that she received the information from Attorney Bates. DRPSAMF ?
430. However, the paragraph does not assert that Ms. Daigle brought the information to Ms.
Buckingham and it accurately reflects Ms. Buckingham's testimony. PSAMF ? 430; Buckingham
Dep. 70:24-25; 71:1-4. The Court overrules the qualified objection and deems the paragraph
admitted.
65 Redington-Fairview qualified its response to Plaintiff's additional material fact paragraph 391.
PSAMF ? 391; DRPSAMF ? 391. To obviate any controversy, the Court has consulted and used Mr.
Willett's actual testimony.
62

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and the confidentiality of hospital records and information.66
DRPSAMF ? 399.

PageID #: 1480

PSAMF ? 399;

Because the materials had to do with Dr. Stulc's tenure at

Trover before he became a Redington-Fairview employee, Ms. Daigle's taking and
photocopying these records did not violate the part of the Redington-Fairview
confidentiality policy dealing with Hospital records. 67 PSAMF ? 401; DRPSAMF ?
401.

This written warning was listed as a reason for Ms. Daigle's later

termination.68 PSAMF ? 355; DRPSAMF ? 355. On February 20, 2008, after the
February 18, 2008 written warning, Ms. Buckingham crossed out the word
-orthopedic? and substituted the word -general? to the warning report. PSAMF ?
465; DRPSAMF ? 465.
p.

Tanya Daigle Files a Complaint with the Board of
Registration of Medicine and the Maine Attorney
General

On January 25, 2008, based on information in Dr. Stulc's Trover file that she
copied at Redington-Fairview, Ms. Daigle filed a complaint against Dr. Stulc with
the Maine Board of Licensure in Medicine. DSMF ?? 138-39; PODSMF ?? 138-39.
In the complaint, Ms. Daigle alleged that Dr. Stulc had lied in order to obtain his
The parties dispute whether the Redington-Fairview confidentiality policies apply to the type of
information in the papers in Dr. Stulc's office closet. PSAMF ? 399; DRPSAMF ? 399. The Court is
required to view the facts in the light most favorable to the Plaintiff and assumes for purposes of the
motion that the Hospital's confidentiality policy did not extend to Dr. Stulc's records.
67 Redington-Fairview denied Plaintiff's additional material fact paragraph 401 on the ground that
the Hospital policy had to do with patient confidentiality and the cited testimony from Ms.
Buckingham did not support the assertion. PSAMF ? 401; DRPSAMF ? 401. The Court views the
cited testimony as ambiguous and at this stage the ambiguity favors Ms. Daigle. The Court deems
the paragraph admitted. By contrast, the Court strikes Plaintiff's additional material fact
paragraph 403 as argument, not fact. PSAMF ? 403; DRPSAMF ? 403.
68 Redington-Fairview denied and moved to strike this paragraph as an inaccurate reflection of the
personnel documents relating to Ms. Daigle's discharge. DRPSAMF ? 355. As the Court is required
to view the evidence in the light most favorable to Ms. Daigle consistent with record support, the
Court denies the Hospital's motion to strike and deems the statement admitted for purposes of this
motion.
66

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state of Maine medical license.69 PSAMF ?? 344, 449; DRPSAMF ?? 344, 449. Ms.
Daigle filed the complaint to protect Redington-Fairview's female patients and other
female patients in the state of Maine.70 PSAMF ? 345; DRPSAMF ? 345. Before
she filed the complaint, Ms. Daigle's attorney had advised her that in reporting Dr.
Stulc's misconduct and perjury to the Maine Board of Licensure in Medicine, she
was protected by both state and federal law and through her counsel, she informed
Redington-Fairview of these protections. PSAMF ? 346; DRPSAMF ? 346.
Before she filed the complaint, Ms. Daigle did not inform the Hospital that
she was planning to file it or that she had obtained information about Dr. Stulc's
employment problems at Trover. DSMF ? 140; PODSMF ? 140. One of the reasons
she did not give the Hospital prior knowledge of the complaint is that she was
concerned that the Hospital would not pursue the issue with the Maine Board of
Licensure in Medicine.71 PSAMF ? 359; DRPSAMF ? 359. However, Ms. Daigle's

Redington-Fairview denied and moved to strike a portion of Plaintiff's additional material fact
paragraph 344, which read that the documents -demonstrated that Dr. Stulc had lied in order to
obtain his license to practice medicine in the State of Maine, under penalties of perjury.? DRPSAMF
? 344; PSAMF ? 344. The Court has adjusted the statement to reflect that this was Ms. Daigle's
allegation, not a statement of fact.
70 Redington-Fairview denied and moved to strike this paragraph on the ground that it is
argumentative and lacks foundation. DRPSAMF ? 345. The Court denies the Hospital's motion to
strike and deems the paragraph admitted for purposes of this motion. The paragraph reflects Ms.
Daigle's motivation in filing the complaint and is neither argumentative nor without foundation.
Redington-Fairview later denied a companion statement in Plaintiff's additional material fact
paragraph 400, which asserted that Ms. Daigle told Ms. Buckingham that the reason she filed the
complaint with the Board was for the protection of patients at the Hospital. PSAMF ? 400;
DRPSAMF ? 400. The basis of Redington-Fairview's denial of this portion of paragraph 400 is that
Ms. Daigle's citation of Ms. Buckingham's testimony does not support the assertion. The Court has
reviewed the cited portion of Ms. Buckingham's testimony and agrees that it does not support the
first sentence of Plaintiff's material fact paragraph 400 and the Court strikes the paragraph.
71 Redington-Fairview denied and moved to strike sentences one and three of Plaintiff's additional
material fact paragraph 359 on the ground that they are argument, not facts. DRPSAMF ? 359.
The Court agrees with the Hospital and strikes sentences one and three from Plaintiff's additional
material fact paragraph 359.
69

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attorney sent Ms. Buckingham a copy of the complaint. PSAMF ? 347; DRPSAMF
? 347. She also provided the Trover documents to the state of Maine Attorney
General for possible prosecution of Dr. Stulc. PSAMF ? 349; DRPSAMF ? 349.
When she first met with Dennis Smith, the Assistant Attorney General who
prosecuted the complaint against Dr. Stulc before the Maine Board of Licensure in
Medicine, Ms. Daigle informed him about Ms. Keaney's report of what Ms. Daigle
considered to be sexual misconduct in the OR that led to the PERTS report.72
PSAMF ? 350; DRPSAMF ? 350.

Immediately upon receipt of the Trover

documents, the Maine Attorney General's Office prosecuted the revocation of Dr.
Stulc's license before the Maine Board of Licensure in Medicine.73 PSAMF ? 352;
DRPSAMF ? 352.
On May 12, 2009, Dennis Smith, Esq., an Assistant Maine Attorney General
Redington-Fairview makes the same objection about Plaintiff's additional material facts
paragraphs 360 and 361. The Court agrees with the Hospital and strikes Plaintiff's additional
material facts paragraphs 360 and 361.
Redington-Fairview objects to Plaintiff's additional material fact paragraph 362 for the same
reason it objected to Plaintiff's additional material fact paragraphs 312-14. See supra n.26. The
Court sustains the Hospital's objection for the same reason reflected in footnote 26. Id.
Redington-Fairview moves to strike Plaintiff's additional material fact paragraph 363
because the Plaintiff's record citation does not support the statement. DRPSAMF ? 363. The Court
agrees and strikes Plaintiff's additional material fact paragraph 363.
Redington-Fairview moves to strike Plaintiff's additional material fact paragraph 364
because it is argumentative. DRPSAMF ? 364. The Court agrees. The paragraph is, in essence, an
argumentative summary of facts that appear elsewhere in Plaintiff's additional material facts. The
Court strikes Plaintiff's additional material fact paragraph 364.
72 Redington-Fairview posited a qualified response to Plaintiff's additional material fact paragraph
350, observing that although Ms. Daigle may have told AAG Smith that Dr. Stulc engaged in sexual
misconduct in the OR with the young female patient, the Hospital contends that Dr. Stulc's ungloved
examination violated standard precautions and infection control procedures and was not a sexual
violation. DRPSAMF ? 350. Maybe so. However, the Plaintiff's statement reflected what she told
the AAG. The Court deems Plaintiff's material fact paragraph 350 admitted.
Redington-Fairview objected to Plaintiff's additional material fact paragraph 351 on the
ground that it is an argumentative narrative. DRPSAMF ? 351; PSAMF ? 351. The Court agrees
and strikes Plaintiff's material fact paragraph 351.
73 Redington-Fairview denied this statement of additional material fact and moved to strike it on the
ground that Ms. Daigle lacks personal knowledge for the statement. DRPSAMF ? 352. The Court
denies the Hospital's motion to strike and deems the statement admitted.

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(AAG), presented the case against Dr. Stulc before the Maine Board of Licensure in
Medicine.

PSAMF ?? 350, 352, 378; DRPSAMF ?? 350, 352, 378.

The State

alleged that Dr. Stulc had engaged in fraud and deceit in obtaining a permanent
license to practice medicine in the state of Maine and in obtaining an emergency
license to practice medicine in Maine, that he had engaged in unprofessional
conduct and incompetence, had committed violations of the American Medical
Association's Principles of Medical Ethics and sexual impropriety, and had made
sexually suggestive and sexually demeaning comments to patients.74 PSAMF ? 379;
DRPSAMF ? 379. The primary components of the State's case against Dr. Stulc
were the records Ms. Daigle and Ms. Gagnon found, evidencing numerous
suspensions of Dr. Stulc's staff privileges when he was at Trover, Ms. Daigle's, Ms.
Gagnon's and Ms. Keaney's testimony about his sexual misconduct at RedingtonFairview, and his lies to the Maine Board of Licensure in Medicine that his license
had never been suspended.75 PSAMF ? 380; DRPSAMF ? 380. On May 12, 2009,
Ms. Daigle testified at length before the Board of Licensure in Medicine concerning
her view that Dr. Stulc had created a hostile work environment for women at
Redington-Fairview by his numerous sexual improprieties.76

PSAMF ? 381;

Redington-Fairview objects to and denies Plaintiff's additional material fact paragraph 379 on the
ground that Ms. Daigle has not presented a sufficient foundation for the paragraph. DRPSAMF ?
379. The Court overrules the Hospital's objection and deems the paragraph admitted.
75 Redington-Fairview objects to and denies Plaintiff's material fact paragraph 380 on the ground
that Ms. Daigle has not presented a sufficient foundation for the paragraph. DRPSAMF ? 380. The
Court overrules the Hospital's objection and deems the paragraph admitted.
76 Redington-Fairview objects to and denies Plaintiff's material fact paragraph 381 on the ground
that Ms. Daigle has not presented a sufficient foundation for the paragraph. DRPSAMF ? 381. The
Court agrees that, as phrased, the statement asserts as a fact a contested matter, namely whether
there was a hostile work environment at Redington-Fairview. The Court has altered the assertion to
74

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DRPSAMF ? 381. Also on May 12, 2009, Ms. Keaney testified about Dr. Stulc's
ungloved examination of the female patient in the OR.77 PSAMF ? 382; DRPSAMF
? 382. On June 9, 2009, the Maine Board of Licensure in Medicine unanimously
ordered that Dr. Stulc's license be immediately revoked on the basis of fraud, deceit,
and his improper conduct toward Ms. Daigle, Ms. Gagnon, and Jane Doe as well as
other employees and patients.78 PSAMF ?? 384, 387; DRPSAMF ?? 384, 387. In
its Order, the Board cited 10 M.R.S. section 8008 and found -it abundantly clear
that Dr. Stulc was neither honest in his practice of medicine nor trustworthy.?79
PSAMF ?? 385-86; DRPSAMF ?? 385-86.
Redington-Fairview had no dispute with the Board's revocation of Dr. Stulc's
license to practice medicine in Maine.

PSAMF ? 406; DRPSAMF ? 406.

The

Board's revocation of Dr. Stulc's medical license helped protect patients at the
Hospital.80 PSAMF ? 407; DRPSAMF ? 407.

reflect that Ms. Daigle's testimony reflected her view that there was a hostile work environment
there; the Court otherwise overrules the Hospital's objection and deems the paragraph admitted.
77 Redington-Fairview objects to and denies Plaintiff's material fact paragraph 382 on the ground
that Ms. Daigle has not presented a sufficient foundation for the paragraph. DRPSAMF ? 382. The
Court overrules the Hospital's objection and deems the paragraph admitted. Redington-Fairview
objects to and denies Plaintiff's material fact paragraph 383 to the extent it alleges that the ungloved
examination was a -sexual assault on Jane Doe.? DRPSAMF ? 383. The Court strikes that portion
of Plaintiff's material fact paragraph 383 on the ground that it is argument, not fact.
78 Redington-Fairview objects to and denies Plaintiff's material fact paragraph 384 on the ground
that Ms. Daigle has not presented a sufficient foundation for the statement. DRPSAMF ? 384. The
Court overrules the Hospital's objection and deems the paragraph admitted
79 Redington-Fairview objects to and denies Plaintiff's material fact paragraph 386 on the ground
that Ms. Daigle has not presented a sufficient foundation for the statement. DRPSAMF ? 386. The
Court overrules the Hospital's objection and deems the statement admitted. Redington-Fairview
objects to and denies Plaintiff's Statement of Material Facts paragraph 388 in which Ms. Daigle
characterizes the Board's views. PSAMF ? 388; DRPSAMF ? 388. The Court agrees that Ms.
Daigle's view of the Board's view is not admissible and the Court strikes Plaintiff's Statement of
Material Fact paragraph 388.
80 Redington-Fairview interposed a qualified response to this material fact, saying that Ms.
Buckingham actually testified that she thinks the revocation helped protect Redington-Fairview
patients. PSAMF ? 407; DRPSAMF ? 407. The Court overrules the Hospital's qualified response

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q.

PageID #: 1485

Tanya Daigle Warns Redington-Fairview

On or about January 25, 2008, Ms. Daigle's attorney wrote to Deborah
Buckingham, informing her, among other things, that (1) Dr. Stulc had confronted
Ms. Daigle angrily after she had complained about his sexual improprieties, by
saying -I will not be second guessed!,? a threat that Ms. Daigle took as a retaliatory
threat against her job; (2) Ms. Daigle feared for her job, and accordingly sought
counseling for the stress and mental distress caused by the conduct and presence of
Dr. Stulc and the prospect of his return; (3) in reviewing the application of Dr. Stulc
with the state of Maine Board of Licensure in Medicine, she had filed a complaint
against Dr. Stulc's Maine license to practice medicine; (4) her counselor was
extremely concerned over her safety should Dr. Stulc return to the employ of the
Hospital, given the records disclosed regarding Dr. Stulc's past, along with the fact
she had reported him to the Maine Board of Licensure in Medicine. PSAMF ? 366;
DRPSAMF ? 366.
On January 31, 2008, Ms. Daigle's attorney sent Redington-Fairview's lawyer
a letter stating that (1) Ms. Daigle and Ms. Gagnon felt compelled to file with the
Maine Human Rights Commission for their job protection as well as for the
protection of patients at the Hospital, (2) their disclosure of Dr. Stulc's issues before
his employment at the Hospital do not violate the -Confidentiality and Computer
Use Statement? Ms. Daigle signed, (3) Ms. Daigle's report and complaint to the

and deems the paragraph admitted. It is a logical inference that the Board's revocation of the license
of a physician the Board found was -neither honest in his practice of medicine nor trustworthy?
helped protect the patients at Redington-Fairview from a potentially dishonest and untrustworthy
physician.

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Maine Board of Licensure in Medicine of Dr. Stulc's pre-employment documents
were handed to the Attorney General's Office and to the Board of Licensure in
Medicine for the protection of the patients and employees of the Hospital, (4) the
statutes make it clear that both the Hospital and its employees (such as Ms. Daigle
and Ms. Gagnon) were absolutely immune from liability by Ms. Daigle's handing
over to the Board of Licensure in Medicine the documents she found, and (5) Ms.
Daigle would regard any adverse employment consequence against her or Ms.
Gagnon to be pretextual.81 PSAMF ? 367; DRPSAMF ? 367.
Ms. Daigle's attorney followed up the January 31, 2008 letter with a
February 14, 2008 letter to Redington-Fairview.82 PSAMF ? 372; DRPSAMF ? 372.
In the second letter, Ms. Daigle's attorney provided Ms. Daigle's detailed written
version of her inquiry to Mr. Willett in which she said she was only trying to
understand what the coverage situation would be while Dr. Stulc was -unavailable.?
PSAMF ? 372; DRPSAMF ? 372. The letter also informed Redington-Fairview of
Ms. Daigle's reaction to the February 18, 2008 written warning for -breaching
confidentiality.? PSAMF ? 373; DRPSAMF ? 373. Ms. Daigle's attorney pointed
Redington-Fairview posits a qualified objection, stating that Ms. Daigle has no personal knowledge
as to whether the Hospital received the letter her lawyer wrote to its lawyer. DRPSAMF ? 367. The
Court strikes the qualified objection on that basis and deems the paragraph admitted since notice to
an attorney is notice to the client. At the same time, the Court allows the qualified response to the
extent that Redington-Fairview emphasized that its acknowledgment of its receipt of Ms. Daigle's
attorney's letter does not reflect its admission of the truth of its contents.
82 The Court admits confusion about the date of this letter. Ms. Daigle says the letter was dated
February 14, 2008; however, she also says that the letter complained about the February 18, 2008
written warning. PSAMF ?? 372-73.
Redington-Fairview objects to and denies the first, third and fourth sentences of Plaintiff's
material fact paragraph 372. DRPSAMF ? 372. The Hospital contends the paragraphs are
argument, not fact. Id. The Court overrules the Hospital's objection to the first sentence; the Court
sustains the objection to the phrase -events of hostility? in the third sentence and strikes that phrase
as argumentative; and, the Court sustains the objection to the fourth sentence and strikes it as
argumentative.
81

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out that Ms. Daigle had told Ms. Buckingham and Mr. Leadbetter that her purpose
in bringing this information to the Board of Licensure in Medicine and then to
Redington-Fairview was in the Hospital's best interest and allowed the Hospital to
make informed decisions about Dr. Stulc based on information the Hospital would
not otherwise have known. PSAMF ? 373; DRPSAMF ? 373. The attorney further
informed the Hospital that the information helped it protect its employees and
patients.83 PSAMF ? 373; DRPSAMF ? 373.
r.

Redington-Fairview Does Not Hire Tanya Daigle As
Office Manager

While Ms. Daigle worked in the general surgery office at Redington-Fairview,
she performed some tasks typically performed by office managers; however, she was
never formally appointed to the position, never received a change of pay for
performing some office manager functions, and there is nothing in her personnel file
that states she was employed or evaluated as the office manager of the general
surgery office. DSMF ?? 141-44, 146; PODSMF ?? 141-44, 146. Ms. Daigle's job
title was never changed to office manager and she did no billing while she was
employed at Redington-Fairview. DSMF ?? 147-48; PODSMF ?? 147-48.
At the same time, even though not formally employed as office manager, Ms.
Daigle was acting office manager in the remote office where she and Ms. Gagnon
worked. PSAMF ? 413; DRPSAMF ? 413. When Dr. Stulc began working at the
Hospital, Mr. Leadbetter introduced Ms. Daigle to him as the office manager.
Redington-Fairview objects to and denies Plaintiff's material fact paragraph 374 on the ground
that it is argument, not fact. DRPSAMF ? 374. The Court agrees and strikes Plaintiff's Statement
of Material Facts paragraph 374. For the same reason, the Court strikes Plaintiff's Statement of
Material Facts paragraphs 375-77.
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PSAMF ?? 415, 431; DRPSAMF ?? 415, 431. When Dr. Stulc wrote to and testified
before the Board of Licensure in Medicine, he identified Ms. Daigle as the office
manager.84 PSAMF ?? 416-17, 432-33; DRPSAMF ?? 416-17, 432-33. When Mr.
Leadbetter introduced Ms. Daigle to Ms. Gagnon, he introduced her as office
manager, and at the adjudicatory hearing before the Board, Ms. Gagnon testified
that Ms. Daigle was the office manager during the time that Dr. Stulc was at
Redington-Fairview.85 PSAMF ?? 418-19, 434-35; DRPSAMF ?? 418-19, 434-35.
As part of her managerial duties, Ms. Daigle attended management meetings at the
Hospital, signed off on time cards for Dr. Stulc and Ms. Gagnon, approved requests
for time off from office employees, identified herself in emails as office manager, and
participated in Ms. Gagnon's five-week employee evaluation. PSAMF ?? 420-424,
436-440; DRPSAMF ?? 420-424; 436-440.

Ms. Buckingham admitted that

between September 2007 when the Hospital hired Dr. Stulc and April 2008, when it
hired May Lisa Rice as office manager, Ms. Daigle performed some of the office
managerial duties, such that she was -acting manager? of the office.86 PSAMF ??
425, 428; DRPSAMF ?? 425, 428.
Redington-Fairview denies Plaintiff's material facts paragraphs 416 and 432 and 417 and 433
(which are virtually identical) on the ground that the paragraphs rely on Ms. Daigle's affidavit for
this proposition. PSAMF ?? 416-17, 432-33; DRPSAMF ?? 416-17, 432-33. The Court overrules
the Hospital's denials and deems the paragraphs admitted.
85 Redington-Fairview denied Plaintiff's material facts paragraphs 419 and 435 (which are
substantially identical), which say that, when she testified before the Board, Ms. Gagnon identified
Ms. Daigle as the office manager during Dr. Stulc's period at the Hospital. PSAMF ?? 419, 425;
DRPSAMF ?? 419, 425. The Hospital objects on foundational and hearsay grounds. The Court
overrules both objections and deems the paragraphs admitted.
86 Redington-Fairview qualified Plaintiff's additional material facts paragraph 425 on the ground
that Ms. Buckingham testified that Ms. Daigle assumed some, not all of the roles as office manager.
PSAMF ? 425; DRPSAMF ? 425. The Court reviewed the cited testimony and agrees with the
Hospital that Ms. Buckingham said that Ms. Daigle -assumed some of those roles.? Buckingham
Dep. 71:24-25; 72:1. She also said that Ms. Daigle was acting office manager of that office. Id.
78:10-12. The Court amended the paragraph to reflect Ms. Buckingham's testimony.
84

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When Redington-Fairview expanded the general surgery practice to two
physicians, Linda Caron, the Practice Manager, posted an office manager position
for the general surgery office. DSMF ? 149; PODSMF ? 149. Before it posted the
position, the Hospital did not inform Ms. Daigle that it was posting the office
manager position and Ms. Daigle learned about the positing when a co-employee
emailed her about the posting and asked whether she was leaving. PSAMF ?? 426-
5, 427, 441; DRPSAMF ?? 426-27, 441. After the posting, Ms. Daigle was told that
she could apply for the office manager position and, along with two other
candidates, she was interviewed for the position. DSMF ?? 150-52; PODSMF ??
150-52.
Redington-Fairview did not hire Ms. Daigle for the office manager job;
instead, it hired Lisa Rice.87 DSMF ? 155; PODSMF ? 155. Ms. Rice had worked as
an office manager for another Redington-Fairview physician and had more coding
qualifications than Ms. Daigle; Ms. Daigle agrees that Ms. Rice is qualified for the
office manager position. DSMF ?? 157-58; PODSMF ?? 157-58. Upon hiring Ms.
Rice, Redington-Fairview did not demote Ms. Daigle and did not reduce her pay.
DSMF ?? 160-61; PODSMF ?? 160-61.
s.

Redington-Fairview Terminates Tanya Daigle's
Employment88

Ms. Daigle asserts in her additional material fact paragraph 427 that Redington-Fairview did not
hire her in retaliation for her blowing the whistle on Dr. Stulc. PSAMF ? 427. Redington-Fairview
objected and moved to strike on the ground that this paragraph is argument, not fact. DRPSAMF ?
427. The Court agrees and strikes paragraph 427 of the Plaintiff's material facts paragraph 427.
88 Ms. Daigle's additional material facts paragraphs 442 through 469 are generally problematic.
First, many paragraphs attempt to frame her allegations as undisputed facts and thereby generate a
genuine issue for summary judgment purposes. For example, paragraph 442 states:
87

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In her performance evaluation dated November 16, 2007, Richard
Leadbetter, her supervisor, found that Ms. Daigle had met all her standards.
PSAMF ? 396; DRPSAMF ? 396. Her February 18 through 20, 2008 performance
evaluation by Mr. Leadbetter and Ms. Buckingham concluded that two statistics
were not met: (1) that Ms. Daigle -ensures patient and hospital confidentiality?; and
(2) that Mr. Daigle -maintains confidentiality - assures that guest/hospital
confidential information is not discussed outside of job responsibility.? PSAMF ?
397; DRPSAMF ? 397. Both of these statistics were marked as -unmet.? PSAMF ?
397; DRPSAMF ? 397. According to Ms. Buckingham, the only reason Ms. Daigle
received -not met? scores was that she had removed information from Dr. Stulc's
office that was very highly sensitive and confidential. PSAMF ? 398; DRPSAMF ?
Plaintiff was discharged by [Redington-Fairview] in retaliation for blowing the whistle on Dr.
Stulc. No policy was violated by her.
PSAMF ? 442. However, these -facts? track the causes of action in Counts VII--Retaliation and
VIII--Whistleblower's Protection Act--and amount to legal conclusions, not facts; this lawsuit is
about whether Ms. Daigle was fired because she reported violations to the state of Maine Board of
Licensure in Medicine and placing her theory of recovery before the Court in affidavit form does not
generate a genuine issue of material fact that survives summary judgment. Compl. ?? 187-98.
Otherwise, all plaintiffs could avoid summary judgment simply by filing a verified complaint or an
affidavit reciting the allegations in the complaint.
Second, the phrasing of these -facts? is highly conclusory and argumentative: -This alleged
?reason' for Tanya Daigle's discharge was false and pretextual,? PSAMF ? 445, -In the Department of
Labor Unemployment Insurance Division, [Redington-Fairview] lied in order to deprive Tanya
Daigle of her rights, warranting punitive damages,? PSAMF ? 443, and -[Redington-Fairview]'s
retaliation against Tanya Daigle, by engaging in the conduct and acts described above, constituted
retaliation by (sic) the Maine Human Rights Act, Title VII and the Maine Workers' Protection Act,?
PSAMF ? 448. As Ms. Daigle knows perfectly well, Redington-Fairview strenuously disputes these
allegations; they are not undisputed facts. Learnard v. Inhabitants of Van Buren, 182 F. Supp. 2d
115, 119 (D. Me. 2002) (-[M]any of Plaintiff's numbered facts are far from ?short and concise' and
contain several distinct facts organized into a brief, argumentative narrative?).
Third, whether Ms. Daigle has generated a genuine issue of material fact as to whether
Redington-Fairview engaged in a pretextual discharge is the heart of the motion for summary
judgment and instead of providing facts, Ms. Daigle has made argument. In fairness to both parties,
the Court has tried to pick through the advocacy to see whether the rhetoric cloaks a real factual
dispute. In doing so, it has addressed only those material facts that are true facts, not argument. To
the extent the Court has not set forth the contents of a paragraph between material facts 442 and
469, it has sustained objections to the argumentative and unproductive nature of these statements.

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398.
From February 18, 2008, when she received the written warning, to
November 12, 2008, when she was terminated, Ms. Daigle did not receive any
warnings or discipline. DSMF ?? 162, 200-01; PODSMF ?? 162, 200-01. During
this interval, Ms. Buckingham stated that she received no reports of problems with
Ms. Daigle's performance.89 PSAMF ? 411; DRPSAMF ? 411. Although RedingtonFairview claims things went pretty smoothly at work during this period and that
Ms. Daigle did not feel she was working in a hostile work environment, Ms. Daigle
says that she had felt ostracized between November 26, 2007, when Dr. Stulc left
work, and April 17, 2008, when he resigned, for blowing the whistle on Dr. Stulc
and that during that period, she was nervous that Dr. Stulc might return to
Redington-Fairview. DSMF ? 163; PODSMF ? 163.
On November 9, 2008, Ms. Daigle was handed an Informed Consent form
that had been completed and signed by Dr. Shankar and a patient. DSMF ? 165;
PODSMF ? 165. On the form, Dr. Shankar had listed the surgical procedure of
colotomy. DSMF ? 166; PODSMF ? 166. Ms. Daigle thought the procedure might
have been a colostomy and she asked Ms. Gagnon, the Medical Assistant, whether
Dr. Shankar might have intended the procedure to be a colostomy; Ms. Gagnon
replied that she did not know but suggested that Ms. Daigle ask the doctor. DSMF

Redington-Fairview interposed a qualified objection to Plaintiff's material fact paragraph 411 on
the ground that it did not accurately reflect Ms. Buckingham's testimony. PSAMF ? 411; DRPSAMF
? 411. The Court has reviewed the testimony Ms. Daigle cited to support this paragraph and the
Court agrees that the Hospital's formulation more accurately reflects Ms. Buckingham's actual
testimony. Buckingham Dep. 53:2-7. The Court has revised the paragraph to reflect the record
support.
89

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?? 167, 169; PODSMF ?? 167, 169. Ms. Daigle did not, however, ask the doctor;
instead she added an -s? to the word, changing the procedure from a colotomy to a
colostomy. DSMF ?? 167, 170; PODSMF ?? 167, 170. In changing the consent
form, Ms. Daigle did not intend to injure the patient. PSAMF ? 458; DRPSAMF ?
458. She also contacted day surgery at Redington-Fairview and booked a colostomy
for the patient, and sent to day surgery the original form, identifying the procedure
as a colostomy. DSMF ? 174; PODSMF ? 174.
There is a radical difference between a colotomy and a colostomy: a colotomy
is a surgical procedure in which an incision is made in the colon to excise a lesion
inside the colon; a colostomy creates an opening in the colon to form an alternative
channel for feces to leave the body and often requires the attachment of an
appliance or bag.

DSMF ? 171; PODSMF ? 171.

Depending on when it was

disclosed, the improper booking of a colostomy instead of a colotomy could have
triggered administrative and legal problems for the Hospital and a range of
potential health and safety issues for the patient.90 DSMF ? 172; PODSMF ? 172.
Dr. Shankar discovered that the wrong procedure had been booked and he

In her response to the Defendant's material fact number 172, Ms. Daigle denies the paragraph,
referring to eight paragraphs of her affidavit and a number of pages of Ms. Buckingham's affidavit.
PODSMF ? 172. The Court rejects Ms. Daigle's denial. To support the denial, Ms. Daigle cites
paragraphs from her own affidavit, which do not contradict Defendant's material fact paragraph 173.
She also cites portions of Ms. Buckingham's deposition, none of which contradicts the Defendant's
paragraph. The Hospital's statement--that -the improper booking of a colotomy as a colostomy
could have triggered both administrative and legal problems for the Hospital and a range of
potential health and safety issues for the patient, depending on when the improper booking was
disclosed?--is self-evident and cannot be denied in good faith. If, because of an administrative error,
a patient undergoes the wrong surgical procedure, particularly one that--like a colostomy--is
invasive and inherently risky, it cannot be denied that the error would pose legal risks to the
hospital and medical risks to the patient.
90

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called Ms. Daigle and told her that the procedure should have been a colotomy.91
DSMF ? 175; PODSMF ? 175; PSAMF ? 444; DRPSAMF ? 444. At this point,
because Ms. Daigle had already sent the original form to day surgery, she only had
a copy of the form. DSMF ? 178; PODSMF ? 178. She crossed out the -s? on the
photocopy of the consent form, writing -error? on the consent form and left the
photocopy on the top of her materials so that her mistake would be rectified. DSMF
?? 175, 178-79; PODSMF ?? 175, 178-79; PSAMF ? 444; DRPSAMF ? 444. Ms.
Daigle also called day surgery and told them that the procedure should have been a
colotomy; however, she did not mention that she had changed the consent form.
DSMF ? 176; PODSMF ? 176. Ms. Daigle did not tell Dr. Shankar that she had
changed the form; however, the fact she had done so was obvious.92 DSMF ? 177;
PODSMF ? 177. Ms. Daigle asked Ms. Gagnon if she would call the patient and
have her come into the office and sign a new consent form. DSMF ? 183; PODSMF
? 183.
Ms. Daigle was aware that an audit was being conducted of the files in the
general surgery office on Monday, November 11, 2008. DSMF ? 182; PODSMF ?

It appears that Dr. Shankar first discovered the error and notified Ms. Daigle, who then changed
the form. PSAMF ? 444; DRPSAMF ? 444.
92 Defendant's material fact number 177 reads: -Ms. Daigle did not tell Dr. Shankar she changed the
consent form.? DSMF ? 177. Ms. Daigle denies the statement, stating in part that -Ms. Daigle did
not tell Dr. Shankar she changed the consent form because it was obvious in their discussion that
she had changed the consent form; Dr. Shankar knew that she had changed the consent form, and
that Ms. Daigle would responsibly correct the consent form, and that she would make sure that the
operating room at the hospital would receive a corrected form. Dr. Shankar understood when he
spoke to her that the mistake would be rectified by Ms. Daigle and that there was three weeks before
surgery.? PODSMF ? 177. The Court strikes Ms. Daigle's denial and deems the paragraph
admitted. The Defendant's paragraph only asserts that Ms. Daigle did not tell Dr. Shankar that she
changed the form. After denying the paragraph, Ms. Daigle explains why she did not tell Dr.
Shankar she changed the form. The denial is not in good faith and is contradicted by her own
response.
91

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182.

PageID #: 1494

An auditor from Medical Mutual, Redington-Fairview's insurance carrier,

discovered the consent form with the word -error? on it and brought this to the
attention of Ms. Rice, the general surgery office manager. DSMF ? 184; PODSMF ?
184. Ms. Rice informed Ms. Buckingham that Ms. Daigle had altered a consent
form that had been signed by a patient and a physician and had changed the
procedure the physician had written on the form from colotomy to colostomy.
DSMF ? 185; PODSMF ? 185.

Ms. Buckingham was also informed that Ms.

Gagnon had told Ms. Daigle to discuss the form with the surgeon before changing it
and that Ms. Daigle had asked Ms. Gagnon to contact the patient to come to the
hospital to sign a new consent form. DSMF ? 187; PODSMF ? 187. When Ms. Rice
questioned Ms. Daigle about the consent form, Ms. Daigle attempted to place blame
for what she had done on Ms. Gagnon.93

DSMF ? 188; PODSMF ? 188.

Ms.

Buckingham also contacted Virginia Farley, Manager of the Post Anesthesia Care
Unit (PACU) and Day Surgery at Redington-Fairview, to obtain the consent form on
file at the Hospital and Ms. Farley confirmed that the consent form at the Hospital
described the procedure as a -colostomy,? not a -colotomy,? and that the consent
form at the Hospital differed from the consent form Ms. Rice had from general
surgery. DSMF ? 189; PODSMF ? 189.
Ms. Buckingham brought the matter to the attention of Mr. Willett and they
agreed that Redington-Fairview should terminate Ms. Daigle's employment. DSMF

Ms. Daigle denies this assertion. PODSMF ? 188. However, in the denial she references her
deposition testimony page 146, line 6 through page 163, line 8. Id. (citing Daigle Dep. 146:6-163:8).
The Court has no obligation to wade through pages of a deposition to determine whether the denial
is supported by the record and treats the assertion as admitted.
93

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?? 191-92; PODSMF ?? 191-92. Ms. Buckingham discussed the termination with
counsel because Ms. Daigle had a sexual harassment claim against the Hospital
pending before the Maine Human Rights Commission and Ms. Buckingham was
concerned that Ms. Daigle would claim that the Hospital's termination decision was
retaliatory.94 DSMF ? 195; PODSMF ? 195. Ms. Buckingham did not ask Tanya
Daigle her side of the story until after she had prepared the termination
documents.95

PSAMF ? 457; DRPSAMF ? 457.

Ms. Buckingham, who first

recommended that Ms. Daigle be terminated for the error, did not look to find out
whether her conduct violated any Redington-Fairview policy.

PSAMF ? 462;

DRPSAMF ? 462.
Mr. Willett did not discuss the termination decision with anyone, including
Dr. Shankar, other than Ms. Buckingham and possibly Mr. Kempton before
discharging Ms. Daigle.96 DSMF ?? 196-97; PODSMF ?? 196-97. Specifically, Mr.
Willett did not speak with Ms. Daigle before approving the discharge recommended
by Ms. Buckingham. PSAMF ? 466; DRPSAMF ? 466. Ms. Buckingham did not
inform Mr. Willett that Ms. Daigle had violated any particular written Redington-

Ms. Daigle admitted the truth of this paragraph but states that it is -inadmissible.? PODSMF ?
195. The Court disagrees and deems the paragraph admitted.
95 Redington-Fairview qualifies its response to Plaintiff's material fact paragraph 457 but its
response explains and does not deny the assertion. DRPSAMF ? 457.
96 In her material fact paragraph 452, Ms. Daigle asserts that the only two persons involved in the
termination decision were Lisa Rice and Richard Willett. PSAMF ? 452. The record citation for this
assertion is a portion of Mr. Willett's testimony. Willett Dep. 23:24-25:6. During this testimony, Mr.
Willett does not mention Ms. Rice. This assertion contradicts the assertion in paragraph 456 that
the only persons who determined that the mistake warranted termination were Mr. Willett and Ms.
Buckingham. PSAMF ? 456. Furthermore, Ms. Daigle admitted Redington-Fairview's assertion
that Mr. Willett did not discuss the termination decision with anyone other than Ms. Buckingham,
and possibly Mr. Kempton, before Ms. Daigle was discharged. DSMF ? 196; PODSMF ? 196. The
Court concludes that Ms. Daigle's assertion that Ms. Rice was involved in the decision to terminate
her is not supported by the record.
94

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Fairview policy. PSAMF ? 469; DRPSAMF ? 469. Mr. Willett's involvement was
limited to hearing what Ms. Buckingham said happened and concurring with her
recommendation; this part of the process was -pretty brief.?97

PSAMF ? 467;

DRPSAMF ? 467.
Neither Ms. Buckingham nor Dr. Shankar was aware of any other situation
in which an employee had done something similar to what Ms. Daigle had done--
i.e. changed a procedure a physician had documented in a consent form, and Ms.
Buckingham was not aware of any other incident involving the inappropriate
completion or handling of a consent form by a Redington-Fairview employee. DSMF
?? 198-99; PODSMF ? 199.98

Other than Ms. Daigle, Redington-Fairview has

never disciplined an employee for changing a consent form.

PSAMF ? 460;

DRPSAMF ? 460.
On November 12, 2008, Ms. Rice and Ms. Buckingham met with Ms. Daigle.
DSMF ? 200; PODSMF ? 200. Ms. Buckingham showed Ms. Daigle the two consent
forms and asked her if she had changed them.99 Ms. Daigle admitted she had
altered the forms, and had made a mistake. DSMF ? 200; PODSMF ? 200; PSAMF
? 444; DRPSAMF ? 444.

Ms. Daigle was informed that her employment was

Ms. Daigle's material fact asserts that Mr. Willett said it was probably five minutes. PSAMF ?
467. Redington-Fairview qualified its response on the ground that Mr. Willett only said it was
-brief.? The Court reviewed the cited testimony and agrees with the Hospital that Mr. Willett did
not admit that his involvement lasted only five minutes but did say that it was -brief? and -pretty
brief.? Willett Dep. 55:20-56:1. The Court altered the assertion to reflect the record support.
98 Ms. Daigle did not respond to Defendant's material fact paragraph 198; the paragraph is deemed
admitted.
99 Ms. Daigle posits a qualified response to this paragraph, noting there was -only one form and one
mistake.? PODSMF ? 200. Based on her prior admissions, however, it is clear that there were two
forms, an original form that went to day surgery and a photocopy that remained in general surgery.
DSMF ?? 175-79; PODSMF ?? 175-79. Ms. Daigle changed the photocopy of the form, which had
remained in general surgery. Id.
97

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terminated effective that day.100 DSMF ? 201; PODSMF ? 201. On the -Warning
Report? in which Ms. Buckingham implemented the decision to immediately
terminate Ms. Daigle on November 12, 2008, Ms. Buckingham noted that Ms.
Daigle had previously been warned. PSAMF ? 464; DRPSAMF ? 464.
t.

Tanya Daigle's Punitive Damages Claim

In addition to the facts underlying her primary claims, Ms. Daigle is seeking
punitive damages against Redington-Fairview and, in response to RedingtonFairview's motion for summary judgment, she posited facts that she contends
generate triable issues.101 Ms. Daigle generally asserts that Redington-Fairview

In her additional material fact paragraph 305, Ms. Daigle asserts that she was demoted and
discharged in retaliation for blowing the whistle on Dr. Stulc and makes similar argumentative
assertions. PSAMF ? 305. The Court strikes all but the last sentence of Plaintiff's Statement of
Material Facts paragraph 305 because the facts are buried in argument.
101 As previously, in this section, Ms. Daigle's material facts are highly argumentative and
problematic. The Court has done its best to ignore the rhetoric and set forth the facts that Ms.
Daigle contends defeat the Hospital's motion. To the extent the Court has not set forth Ms. Daigle
version of the -facts,? it is because those facts are not facts at all, but argument. Learnard, 182 F.
Supp. 2d at 119. Regarding material fact paragraphs 470, 471, 475, PSAMF ?? 470-471, 475, 478;
DRPSAMF ?? 470-71, 475, 478, 489, the Court earlier rejected Ms. Daigle's assertions that Dr. Stulc
applied for a license to practice medicine in the commonwealth of Massachusetts and that the
Hospital failed to comply with the Health Care Quality Improvement Act and its regulations. Supra
fn. 34. Regarding material fact paragraph 473, Ms. Daigle failed to include a record citation and
therefore the Court strikes it. PSAMF ? 473; DRPSAMF ? 473. Plaintiff's material fact paragraph
474 is both argumentative and a legal conclusion and the Court strikes it. PSAMF ? 474; DRPSAMF
? 474. Plaintiff's material fact paragraph 477 cites Exhibit 12, PSAMF ? 477; Redington-Fairview
objected on the ground there is no Exhibit 12 in the summary judgment record. DRPSAMF ? 477.
The only Exhibit 12 the Court could locate is Exhibit 12 to Ms. Daigle's deposition, which was
attached to the Hospital's material facts. DSMF Attach. 12, Ex. 12. But Exhibit 12 to Ms. Daigle's
deposition does not support the assertion in paragraph 477 of her material facts. The Court strikes
paragraph 477 as unsupported by the record citation. In material facts paragraphs 478 and 479, Ms.
Daigle says that the Hospital never reported Dr. Stulc to the Board of Licensure in Medicine and to
the National Practitioners Data Bank. PSAMF ?? 478-79. The Hospital objects on the ground that
the cited evidence does not support the assertion and it proffers its view that it did file the reports
with both the Board and the Data Bank. DRPSAMF ? 478--79. The Court agrees with the Hospital
that the record citation does not support the assertion. Ms. Daigle cited the testimony of Mr. Willett
and during the cited portion of his deposition, Mr. Willett was being asked about whether the
Hospital informed the Board or the Data Bank about the PERTS reports. Willett Dep. 38:12-39:2.
Ms. Daigle's more general assertion that the Hospital never expressly reported Dr. Stulc's alleged
misbehavior at Redington-Fairview to the Board or the Data Bank may be true, but it is not
supported by this record citation. In her material fact paragraph 481 and 483, Ms. Daigle asserts
100

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has had a history of discriminating against females in a number of respects as
evidenced by a number of incidents. PSAMF ? 472; DRPSAMF ? 472. In 2007, a
male physician, Dr. Raxi Saydjari, a general surgeon, complained to the Board of
Trustees of Redington-Fairview that the Hospital was treating female physicians
less favorably than male physicians.102

PSAMF ? 476; DRPSAMF ? 476.

The

Hospital never gave the Board of Licensure in Medicine the PERTS report. PSAMF
? 480; DRPSAMF ? 480.

In Mr. Willett's May 6, 2008 letter to the Board of

Licensure in Medicine, he informed the Board that Dr. Stulc had resigned but did
not inform the Board that the Hospital had concluded that he had clearly lied when
he denied the allegations that he had viewed pornography.

PSAMF ? 482;

DRPSAMF ? 482. In addition, Mr. Willett's May 6, 2008 letter did not mention the
that despite the fact that the Hospital wrote to the Board about Dr. Stulc, it -mentioned nothing
regarding his sexual perverse and predatory misconduct.? PSAMF ? 481, 483. In support, she cites
Exhibit 2 of Mr. Kempton's deposition, which is his May 6, 2008 letter to the Board concerning Dr.
Stulc. Sealed Document Ex. 2. The document is under seal; however, the Court has reviewed it and
concludes that the letter does not support Ms. Daigle's assertions. In her material fact paragraph
484, Ms. Daigle says that the Hospital did not inform the Board that Dr. Stulc's privileges had been
suspended. PSAMF ? 484. The Hospital objects on the ground that there is no evidence the Hospital
had suspended Dr. Stulc's medical staff privileges during that interval. DRPSAMF ? 484. The
Court agrees with the Hospital. The Hospital had suspended Dr. Stulc's pay but not his medical
staff privileges and therefore it is immaterial that it did not inform the Board of something it had not
done. The Court sustains the Hospital's objection to material fact paragraph 485 because it is
argumentative. PSAMF ? 485; DRPSAMF ? 485. In her material fact paragraph 488, Ms. Daigle
says that the August 4, 2009 letter from Donna Bickford of Redington-Fairview to the Board of
Licensure in Medicine regarding the reason Dr. Stulc resigned his privileges was -untrue? because it
mentioned only his failure to be forthright in his application for Medical Staff membership and
privileges and did not mention the allegations of his misconduct at Redington-Fairview. PSAMF ?
488. The Hospital objects on the ground that it is argument, not fact. DRPSAMF ? 488. The Court
disagrees with the Hospital regarding the contents of the letter itself, but it agrees with the Hospital
about the assertion that the statement was untrue.
102 Plaintiff's material fact paragraph 476 says that Dr. Saydjari reported to the Board at RedingtonFairview that women physicians were treated less favorably than men physicians, including with
respect to employment agreements. PSAMF ? 476. The Hospital denied the assertion on the ground
that Dr. Saydjari's cited testimony said only that he complained to the Board that female doctors
were treated less favorably than male doctors. DSPRSAMF ? 476. The Court reviewed the cited
testimony and agrees with the Hospital that the cited testimony does not mention employment
agreements. Willett Dep. 72:21-73:20. The Court reframed Ms. Daigle's paragraph to accurately
reflect the record.

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allegation that Dr. Stulc had violated a young female patient in the OR. PSAMF ?
486; DRPSAMF ? 486. The Hospital withheld information on August 4, 2009 when
it confirmed that Dr. Stulc had resigned his privileges at Redington-Fairview
effective April 17, 2008. PSAMF ? 487; DRPSAMF ? 487. It reported that Dr. Stulc
had resigned his Redington-Fairview privileges while under investigation for his
failure to be forthright on the application for Medical Staff membership and
privileges at the Hospital. PSAMF ? 488; DRPSAMF ? 488.
II.

THE PARTIES' POSITIONS
A.

The Motion: An Overview

Of the eight counts in her Amended Complaint, Tanya Daigle posited five
counts against Redington-Fairview.

Am. Comp.

Redington-Fairview moves for

judgment on each: 1) Count IV--Hostile Work Environment--Maine Human Rights
Act and Title VII; 2) Count V--Retaliation--Maine Human Rights Act and Title
VII; 3) Count VI--Whistleblower's Protection Act; 4) Count VII--Discrimination
Based on Gender--Title VII; and, 5) Count VIII--Discrimination Based on
Gender--Maine Human Rights Act. Def.'s Mot. at 2.
B.

Redington-Fairview's Position

Redington-Fairview says that even though Ms. Daigle divided her claims into
different counts, her legal claims can be divided into two basic theories: hostile
environment sexual harassment under Title VII and the Maine Human Rights Act
(MHRA);

and

retaliation

under

Title

VII,

the

MHRA,

and

the

Maine

Whistleblower's Protection Act. Id. The Hospital asserts that it is not responsible

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for the hostile environment sexual harassment set of claims because 1) Dr. Stulc
was not a supervisory employee, 2) the Hospital took prompt remedial action, and 3)
the facts are not sufficiently severe or pervasive to constitute actionable sexual
harassment. Id. at 3-12; Def.'s Reply at 1-5. The Hospital then claims it is not
responsible for retaliation because 1) Ms. Daigle failed to first bring the alleged
violation to her employer, 2) Ms. Daigle did not sustain an adverse employment
action, and 3) she failed to demonstrate a causal nexus between her complaints and
her discharge. Def.'s Mot. at 12-25. Finally, Redington-Fairview contends it is
entitled to judgment on the punitive damages claim. Id. at 25-26.
C.

Tanya Daigle's Response

Ms. Daigle disputes the Hospital's positions that Dr. Stulc did not have de
facto authority over her employment and that the Hospital's response was
sufficiently remedial or effective.

Pl.'s Resp. at 3-7.

She asserts that she was

subjected to severe and pervasive sexual harassment and hostility. Id. at 8-15.
Turning to the retaliation theory, Ms. Daigle claims she was engaged in protected
activity, that her warning, demotion, and termination constituted adverse
employment actions, and that she has demonstrated a causal link between her
whistleblowing and the adverse employment actions. Id. at 15-19. Finally, she
contends she has presented sufficient evidence to generate a punitive damage claim
against the Hospital. Id. at 19.
III.

DISCUSSION

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A.

PageID #: 1501

The Summary Judgment Standard103

Summary judgment is appropriate -if the movant 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 fact is -material? if it -has the potential to
change the outcome of the suit under the governing law if the dispute over it is
resolved favorably to the nonmovant.? McCarthy v. Nw. Airlines, Inc., 56 F.3d 313,
315 (1st Cir. 1995); accord Buchanan v. Maine, 469 F.3d 158, 166 (1st Cir. 2006);
Seaboard Sur. Co. v. Town of Greenfield, 370 F.3d 215, 218-19 (1st Cir. 2004). An
issue is genuine if -the evidence about the fact is such that a reasonable jury could
resolve the point in favor of the nonmoving party.? McCarthy, 56 F.3d at 315
(quoting United States v. One Parcel of Real Prop. with Bldgs., Appurtenances, and
Improvements, Known As Plat 20, Lot 17, Great Harbor Neck, New Shoreham,
Rhode Island, 960 F.2d 200, 204 (1st Cir. 1992)); accord Seaboard Sur. Co., 370 F.3d
at 218-19. Once this evidence is supplied by the moving party, the nonmovant
-must point to ?competent evidence' and ?specific facts' to stave off summary
judgment.? Tropigas de Puerto Rico, Inc., 637 F.3d at 56; accord ATC Realty, LLC
v. Town of Kingston, 303 F.3d 91, 94 (1st Cir. 2002).
The Court -afford[s] no evidentiary weight to ?conclusory allegations, empty
On December 1, 2010, while this motion was pending, an amended version of Rule 56 of the
Federal Rules of Civil Procedure became effective. See Farmers Ins. Exch. v. RNK, Inc., 632 F.3d
777, 782 n.4 (1st Cir. 2011). Applying the amended version of Rule 56 to this case is -just and
practicable? and would not -work a manifest injustice? because the amendments -do not change the
summary judgment standard or burdens.? Id. See also Tropigas de Puerto Rico, Inc. v. Certain
Underwriters At Lloyds Of London, 637 F.3d 53, 56 n.5 (1st Cir. 2011) (stating that -[t]he
substantive standard for summary judgment remains unchanged?); Ophthalmic Surgeons, Ltd. v.
Paychex, Inc., 632 F.3d 31, 35 n.4 (1st Cir. 2011) (same); Del Toro Pacheco v. Pereira, 633 F.3d 57, 62
n.6 (1st Cir. 2011) (same); Hartford Fire Ins. Co. v. CNA Ins. Co. (Eur.), 633 F.3d 50, 54 n.6 (1st Cir.
2011) (same).
103

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rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than
significantly probative.'? Tropigas de Puerto Rico, Inc., 637 F.3d at 56 (quoting
Rogan v. City of Boston, 267 F.3d 24, 27 (1st Cir. 2001)); accord Sutliffe v. Epping
Sch. Dist., 584 F.3d 314, 325 (1st Cir. 2009); Carroll v. Xerox Corp., 294 F.3d 231,
236-37 (1st Cir. 2002).

Rather, the non-moving party must -present ?enough

competent evidence' to enable a factfinder to decide in its favor on the disputed
claims.? Carroll, 294 F.3d at 237 (quoting Goldman v. First Nat'l Bank of Boston,
985 F.2d 1113, 1116 (1st Cir. 1993)). The Court then -views the facts and draws all
reasonable inferences in favor of the nonmoving party.? Ophthalmic Surgeons, Ltd.,
632 F.3d at 35; accord Merchs. Ins. Co. of N.H., Inc. v. United States Fid. & Guar.
Co., 143 F.3d 5, 7 (1st Cir. 1998).
B.

Hostile Work Environment
1.

Legal Standards

One way of violating Title VII is -requiring people to work in a
discriminatorily hostile or abusive environment.? Valentin-Almeyda v. Municipality
of Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006) (quoting Harris v. Forklift Sys., 510
U.S. 17, 21 (1993)). As a general proposition, a plaintiff may recover on a hostile
work environment theory when -the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive working environment.?
Wilson v. Moulison N. Corp., 639 F.3d 1, 6-7 (1st Cir. 2011) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993)); O'Rourke v. City of Providence, 235 F.3d

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713, 728 (1st Cir. 2001) (same). -[T]he hostile work environment test requires an
assessment of the totality of the circumstances, including ?the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee's work performance.'? Valentin-Almeyda, 447 F.3d at 94 (quoting
Harris, 510 U.S. at 23).

The work environment -must be both objectively and

subjectively offensive, one that a reasonable person would find hostile or abusive,
and one that the victim in fact did perceive to be so.? Id. at 7 (quoting Faragher v.
City of Boca Raton, 524 U.S. 775, 787 (1998)). In addition, the plaintiff must show
-that the employer is liable either for creating or for tolerating that atmosphere.?
Id. Furthermore, -whether the misconduct actually occurred and whether it created
an actionably hostile work environment are questions for the trier of fact, not for
the court.? Id.
2.

Dr. Stulc: Supervisor or Co-Employee

-A plaintiff must satisfy different standards for establishing employer
liability in a hostile work environment case depending on whether the harasser is a
supervisor or co-employee of the victim.? Crowley v. L.L. Bean, Inc., 303 F.3d 387,
401 (1st Cir. 2002). An employer is -vicariously liable if [its] supervisor . . . created
a hostile work environment.? Torres-Negron v. Merck & Co., 488 F.3d 34, 40 (1st
Cir. 2007).

-When co-workers, rather than supervisors, are responsible for the

creation and perpetuation of a hostile work environment . . . an employer can only
be liable if the harassment is causally connected to some negligence on the

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employer's part.? Wilson, 639 F.3d at 7 (quoting Noviello v. City of Boston, 398 F.3d
76, 95 (1st Cir. 2005)). In other words, the plaintiff must demonstrate that -the
employer knew or should have known about the harassment yet failed to take
prompt and appropriate remedial action.? Id. (citing Crowley, 303 F.3d at 401).
However, -notice alone is not enough. Liability only attaches if the employer, after
receiving notice, fails to take prompt and appropriate ameliorative action.? Id. at 8.
Summary judgment will lie -when the undisputed facts show that a reasonable jury
could not help but conclude that the employer's response was both timely and
appropriate.? Id. Although the law requires the employer to respond, it does not
require the employer to respond in any particular way and the law recognizes that
-the imposition of employee discipline is not a rote exercise, and an employer must
be accorded some flexibility in selecting condign sanctions for particular instances of
employee misconduct.? Id.
-[T]he determination of whether an employee is a de facto supervisor . . . is
-factual in nature.? Id. at 17. Nonetheless, -a minimum factual predicate must be
present to avoid summary judgment on such an issue.? Id. at 9. -[S]tanding alone,
a [plaintiff's] subjective belief is insufficient to create a triable issue of material fact
about a coworker's status.? Id. at 10. A supervisor is one who has -the authority to
affect the terms and conditions of . . . employment.? Id. at 9 (quoting Noviello, 398
F.3d at 96). This authority -primarily consists of the power to hire, fire, demote,
promote, transfer, or discipline an employee.? Id. (quoting Noviello, 398 F.3d at 96).
Depending on the context, a supervisor's responsibilities must -include the duty to

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forward harassment complaints up the line (that is, to upper management).? Id.
With these principles in mind, there is scant evidence in this record that Dr.
Stulc was Ms. Daigle's supervisor. There is no evidence that he was involved in
hiring her, setting her hourly wage, determining her work schedule, disciplining
her, promoting her (or not), or that he had the authority to fire her. There is no
evidence that Dr. Stulc was a person to whom Ms. Daigle was required to make a
complaint of sexual harassment and there is substantial evidence that she
complained about his actions through a chain of command that did not include him.
In short, the Court concludes that there is no evidence that Dr. Stulc had the
authority to affect the terms and conditions of Ms. Daigle's employment.
This is not to say that the economic and power relationship between a
general surgeon and a medical secretary is equal. It is decidedly not. There may be
a case where a low-level hospital employee could prove that a physician,
particularly an employed physician, had such influence over the hospital
administration that he effectively had supervisory authority over her. But this is
not that case. The only evidence that buttresses Ms. Daigle's argument is Mr.
Leadbetter's comment in mid-October 2007 that -Dr. Stulc is not going anywhere
and if [you cannot] work with the doctor,? he would -find another position? for her.
PSAMF ? 244; DRPSAMF ? 244. This comment does not establish that Dr. Stulc
was Ms. Daigle's supervisor.

Instead, it emphasizes that the individual with

decision-making authority was Mr. Leadbetter, not Dr. Stulc, since Mr. Leadbetter
said he would reassign Ms. Daigle.

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On this record, the Court concludes that Ms. Daigle failed to present -a
minimum factual predicate . . . to avoid summary judgment on [this] issue.? Wilson,
639 F.3d at 9. Ms. Daigle also points to the positive five-week review that Dr. Stulc
received, but she does not explain why the Hospital's positive review of the doctor
makes him her supervisor. There is no genuine issue of material fact as to whether
Dr. Stulc was Ms. Daigle's supervisor: he was not.
3.

The Work Environment at Redington-Fairview

As Dr. Stulc was a co-employee, Ms. Daigle's hostile environment sexual
harassment claim must demonstrate that -the employer knew or should have
known about the harassment yet failed to take prompt and appropriate remedial
action.? Id. at 7. There is the overwhelming evidence in this record that when Ms.
Daigle complained about Dr. Stulc, the Hospital took her complaints seriously and
took prompt action. Following her complaints about Dr. Stulc, the Hospital warned
him about his conduct and put him on a leave of absence, and ultimately terminated
him.
From September 1, 2007 to September 19, 2007, Dr. Stulc worked at
Redington-Fairview as a locum tenens and on September 19, 2007, the Hospital
hired him as a general surgeon. Ms. Daigle's problems with Dr. Stulc began either
during the last week of September or the first week of October and the Hospital
placed him on administrative leave on November 26, 2007.

Ms. Daigle's first

problem occurred when Dr. Stulc yelled at her and told her not to second guess him.
Ms. Daigle reported his conduct to Mr. Leadbetter and Dr. Renfrew and, in

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response, Dr. Renfrew asked her to set up a meeting among Dr. Stulc, Virginia
Farley, himself and herself to work out expectations.104
Ms. Daigle's second problem with Dr. Stulc occurred on October 10, 2007
when she discovered the pornographic printouts.

When Mr. Kempton came to

investigate, Ms. Daigle and Ms. Gagnon told him about Dr. Stulc's inappropriate
conduct around female patients and Ms. Gagnon mentioned his inappropriate
comments to a male patient. Shortly thereafter, the administration met with Dr.
Stulc and told him that the Hospital would not tolerate this type of behavior. After
Dr. Stulc appeared remorseful, Mr. Leadbetter met with Ms. Daigle (and Ms.
Gagnon) and assured them that the Hospital would not retaliate against them for
making the complaint, instructed them to report anything they witnessed that was
unethical, and confirmed that Dr. Stulc admitted looking at pornography.

Ms.

Daigle said that she felt she could continue to work with Dr. Stulc if he was
remorseful and promised not to engage in this behavior.
In addition to meeting with Dr. Stulc, the Hospital arranged for a meeting
among Mr. Kempton, Mr. Leadbetter, Dr. Stulc, Ms. Daigle, and Ms. Gagnon. The
meeting took place on October 12, 2007. Although Ms. Daigle has criticized the
meeting as being without a mediator, without the presence of a female
administrator, and not addressing all her issues the way she preferred, the law
gives an employer a range of discretion as to how to respond to harassment

Although Ms. Daigle said that about one month later--either late October or early November--
Dr. Stulc became upset when she could not read a word he had written on a form and he told her she
should go back to school, there is no indication that she complained to the administration about this
comment.
104

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complaints and it is not necessary that in doing so, the employer must satisfy the
complainant's view of how it should proceed.105 See id. at 8-9 (discussing the need
to accord the employer some flexibility in selecting the correct sanction).
Next is Dr. Stulc's physical examination of a female patient in the OR on
November 21, 2007. The Court assumes that even though the incident did not
directly involve Ms. Daigle, the doctor's actions could have contributed to an overall
atmosphere of sexual harassment.

Here, the nurses in the OR informed the

Hospital administration and the Hospital generated a PERTS Report. The Hospital
did not treat the incident as one of sexual misconduct; instead, it treated the
incident as a violation of standard precautions and infection control practices. Dr.
Renfrew told Dr. Stulc that he was never to do this again. Here, the record reflects
that the Hospital acted promptly, that Dr. Stulc's actions were the subject of an
internal investigation and report, and that the Medical Director verbally
reprimanded Dr. Stulc. This is sufficient under the law. See id. at 8 (dismissing a
plaintiff's argument that -a verbal reprimand and warning constituted too mild a
sanction? and that harassing coworkers' speech -should have resulted in their
immediate discharge?).

Again, Ms. Gagnon assumed a different view of the

Although Ms. Daigle has developed a list of instances of Dr. Stulc's asserted misconduct from
October 15, 2007 to November 19, 2007, there is no evidence that Ms. Daigle (or anyone else)
informed anyone in administration about his misbehavior during this interval. Thus, there is no
evidence that -the employer knew or should have known about the harassment.? Id. at 11.
On November 20, 2007, Ms. Daigle emailed Mr. Leadbetter describing several operational
issues of concern about Dr. Stulc, including that he did not always answer his pages, that he was
forcing patients to wait, and that he was not a team player. However, none of these operational
concerns touches on sexual harassment. Furthermore, Mr. Leadbetter had scheduled another
meeting to discuss these concerns for Tuesday, November 27, 2007 but the meeting never took place
because the Hospital placed Dr. Stulc on administrative leave by then.
105

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incident, seeing it as part of Dr. Stulc's pattern of sexual misconduct, and she says
that as sexual misconduct, the OR complaint should have triggered a report to the
National Data Bank, to the Board of Licensure in Medicine, and to Ms.
Buckingham, the Director of Human Resources. However, as the Court has noted,
the employer is not required to accept the complainant's view of the nature of a coemployee's actions or the proper remedy. In any event, within a week, the Hospital
had placed Dr. Stulc on administrative leave.
The fourth incident also occurred on November 21, 2007, when Ms. Daigle
discovered additional pornography on Dr. Stulc's office computer. She complained
to Mr. Leadbetter and he immediately came to the office, viewed the images, and
met with Ms. Daigle and other employees.

After confirming the existence of

inappropriate images on his computer, the Hospital placed Dr. Stulc on
administrative leave and prohibited him from working there effective Monday,
November 26, 2007, the very next working day. Although Ms. Daigle objects to the
Hospital's attempts between November 26, 2007 and April 17, 2008 to require him
to undergo counseling, her complaint runs to an area of employer discretion. Here,
the Hospital suspended Dr. Stulc and as the First Circuit noted in Wilson, Title VII
-does not invariably require termination or suspension as a response to harassment
(even serious harassment).? Id. at 8.
Ms. Daigle's concern during the period from November 26, 2007 to April 17,
2008, that Dr. Stulc might return and that she was told to tell patients only that Dr.
Stulc was -unavailable? is essentially a disagreement with her employer about its

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selected sanction; it amounts to a contention that the Hospital had to terminate Dr.
Stulc, not suspend him, and could not legally seek less draconian sanctions, such as
mentoring and counseling. If the Hospital had allowed Ms. Daigle to do what she
wanted to do--inform the general public that a general surgeon had been suspended
for sexual impropriety--it would have been exceedingly difficult to bring Dr. Stulc
back to work at Redington-Fairview.

However, the First Circuit recently

commented that -there is no legal rule that requires treating [a violation of Title
VII] as the workplace equivalent of a capital offense.? Id.
Ms. Daigle contends that the Hospital's later handling of Dr. Stulc's
resignation perpetuated an atmosphere of sexual harassment. She complains that
the Hospital should have reported Dr. Stulc's sexual misconduct to the Maine Board
of Licensure in Medicine and to the National Data Bank, and that it should not
have relied on the misrepresentations in his Medical Staff application to institute
the investigation that led to his resignation.

However, as with the other

complaints, Ms. Daigle's disagreement with the Hospital on this point is a
disagreement with her employer's choice of remedy.
Finally, although Ms. Daigle attempts to weave into her sexual harassment
claim the Hospital's disciplinary process that led to the written warning on
February 18, 2008, the causal link between the Hospital's action and the
maintenance of an abusive work environment is extremely attenuated. By the time
the Hospital disciplined Ms. Daigle, Dr. Stulc had not worked there for 2  1/2  months,
was the subject of Ms. Daigle's pending complaint before the Board of Licensure in

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Medicine, and Ms. Daigle herself had discovered evidence that led to Dr. Stulc's
resignation from the Redington-Fairview Medical Staff and to the Board's
revocation of his license to practice medicine in Maine.

Ms. Daigle has never

asserted that anyone at the Hospital other than Dr. Stulc engaged in sexually
inappropriate behavior and the connection between the Hospital's February 2008
written warning and an allegedly abusive working environment from a physician
who had been long suspended, never to return to work, is a step too far.
If Ms. Daigle's chronology of events states a cause of action, it must be as a
retaliation claim, and the Court turns next to that issue.
C.

Retaliation
1.

Legal Standards

To make out a claim for retaliation, a plaintiff must point to specific facts
that show: (1) she engaged in protected conduct protected by statute; (2) she was
subjected to an adverse employment action after the protected conduct occurred;
and (3) there was a causal link between the protected conduct and the adverse
employment action. Collazo v. Bristol-Myers Squibb Mfg., 617 F.3d 39, 46 (1st Cir.
2010); Valentin-Almeyda, 447 F.3d at 94. The same criteria apply to a MWPA
claim. Costain v. Sunbury Primary Care, P.A., 2008 ME 142, ? 6, 954 A.2d 1051,
1053. -Protected conduct includes not only the filing of administrative complaints
but also complaining to one's superiors.?
(internal citation omitted).

Valentin-Almeyda, 447 F.3d at 94

-[T]o be adverse, an employment action ?must

materially change the conditions' of the plaintiff's employment; examples include

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?disadvantageous transfers or assignments' and ?unwarranted negative job
evaluations.'? Id. at 95 (quoting Gu v. Boston Police Dep't, 312 F.3d 6, 14 (1st Cir.
2002)).
Under the McDonnell Douglas burden-shifting framework, once a plaintiff
has made a prima facie showing of retaliation, the defendant must articulate a
legitimate, non-retaliatory reason for its employment decision, and if the defendant
meets this burden, the plaintiff must show that the proffered legitimate reason is in
fact a pretext and that the job action was the result of the defendant's retaliatory
animus. Collazo, 617 F.3d at 46 (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792, 801-03 (1973)). The defendant's burden is one of production only; the burden of
persuasion remains on the plaintiff. Valentin-Almeyda, 447 F.3d at 95. The Title
VII analytic framework applies to retaliation claims under the MWPA.106
2.

The Prima Facie Case

Ms. Daigle has the initial undemanding task of making a prima facie case of
unlawful retaliation.

Melendez v. Autogermana, Inc., 622 F.3d 46, 51 (1st Cir.

2010); Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991) (-The burden of
making out a prima facie case is ?not onerous'? (quoting Texas Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 253, 253 (1981))). Furthermore, under First Circuit authority,
the Court may not -consider the employer's alleged nondiscriminatory reason for
taking an adverse employment action when analyzing the prima facie case.?

More precisely, the claim must be that Redington-Fairview violated the Maine Human Rights Act,
5 M.R.S. ? 4572(1)(A) by subjecting Ms. Daigle to an adverse employment action for exercising her
rights under the MWPA. Tripp v. Cole, 425 F.3d 5, 9 n.4 (1st Cir. 2005); Roussel v. St. Joseph Hosp.,
257 F. Supp. 2d 280, 285 (D. Me. 2003).
106

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Melendez, 622 F.3d at 51 (quoting Wexler v. White's Fine Furniture, Inc., 317 F.3d
564, 574 (6th Cir. 2003)).
a.

Protected Activity

Redington-Fairview first contends that Ms. Daigle's retaliation claim must
fail because she limited her retaliation claim to state law and she failed to bring the
alleged violation to a person at the Hospital with supervisory authority as required
by the Maine Whistleblowers Protection Act (MWPA), 26 M.R.S. ? 833(2). Def.'s
Mot. at 13-14, 14 n.9. The Hospital then says that to be actionable, a retaliation
claim must be based on the plaintiff's opposition to an employment practice made
unlawful by either the MWPA or Title VII, and as Ms. Daigle did not complain to
the Board of Licensure in Medicine about an employment practice at RedingtonFairview, neither statute applies. Id. at 14. Ms. Daigle implicitly responds that she
is maintaining a Title VII retaliation claim as well as a MWPA claim. Pl.'s Resp. at
15-16.

She also claims that her report of Dr. Stulc to the Board constituted

protected conduct. Id. at 16.
The Court agrees with Ms. Daigle. First, the Court does not conclude that
Ms. Daigle waived her right to proceed under both federal and state law.

As

regards the state law claim, the MWPA provides that actions protected from
discrimination include an employee:
acting in good faith . . . report[ing] orally or in writing to . . . a public
body what the employee has reasonable cause to believe is a violation
of a law or rule adopted under the laws of this State, a political
subdivision of this State or the United States;
[or]

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acting in good faith and consistent with state and federal privacy laws,
report[ing] . . . to the appropriate licensing, regulating or credentialing
authority, orally or in writing, what the employee has reasonable cause
to believe is 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.
26 M.R.S. ? 833(1)(A), (E).
Redington-Fairview argues that Ms. Daigle cannot seek shelter under the
MWPA -[b]ecause the [Board of Licensing in Medicine] Complaint did not concern
an unlawful employment practice of Ms. Daigle's employer.?
(emphasis in Def.'s Mot.).

Def.'s Mot. at 14

The plain language of the statute contains no such

limitation, referring only generally to -violation of a law or rule adopted under the
laws of this State or the United States.? 26 M.R.S. ? 833(1)(A). What is more, the
line between complaints about an employer's practice and coworker's violation of a
rule or law is a fluid one; coworkers' actions are often intertwined with conditions of
employment. Thus, in Currie v. Industrial Security, Inc., 2007 ME 12, ? 15-17, 20,
915 A.2d 400, 405-06, the Maine Supreme Judicial Court viewed as a protected
activity, complaints made to the Border Patrol about the ability of two coworkers to
work. Under the MWPA, Ms. Daigle's complaints to the Medical Board regarding
Dr. Stulc's license to work as a physician deserve similar protection.
Nonetheless, the Court need not go so far as to consider whether reporting
Dr. Stulc's omissions to the Board in his licensing application is a protected activity.
Although Ms. Daigle's complaint to the Board of Licensure in Medicine may have
been initially prompted by her discovery of Dr. Stulc's omissions, the context of Ms.
Daigle's complaint about Dr. Stulc to the Board of Licensure in Medicine is that

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from her perspective, she brought serious allegations of sexual harassment of both
employees and patients to the Hospital administration and Redington-Fairview
took insufficient remedial action, thereby endangering the employees and patients
at the Hospital. Her complaint to the Board about Dr. Stulc was therefore grounded
on the facts underlying her complaints to the Hospital about his creation of a hostile
work environment at Redington-Fairview based on her gender.
Redington-Fairview's related point is that -[t]o come under the MWPA's
protection, the employee must first bring the alleged violation to the attention of a
person with supervisory authority with the employer, and allow the employer a
reasonable opportunity to correct the violation.?

Def.'s Mot. at 14 (citing 26

M.R.S.A. ? 833(2). Redington-Fairview is correct that the MWPA's protection:
does not apply to an employee who has reported or caused to be
reported a violation, or unsafe condition or practice to a public body,
unless the employee has first brought the alleged violation, condition
or practice to the attention of a person having supervisory authority
with the employer and has allowed the employer a reasonable
opportunity to correct that violation, condition or practice.
26 M.R.S.A. ? 833(2). However, the requirement that the employee first involve the
employer -is not required if the employee has specific reason to believe that reports
to the employer will not result in promptly correcting the violation, condition or
practice.?

Id. The Court concludes that Redington-Fairview's treatment of Ms.

Daigle's previous complaints establishes a genuine issue of material fact as to
whether she had reason to believe that the Hospital would not promptly correct the
substance of her complaint to the Medical Board. For instance, after the November
21, 2007 incident with Jane Doe, Redington-Fairview did not notify the patient, the

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National Practitioners Data Bank, or state authority, and did not address the
allegedly sexual nature of the incident. From this, Ms. Daigle could have come to
believe that Redington-Fairview desired to keep Dr. Stulc's transgressions internal
and to treat them as professional, not sexual abuse issues. Further supporting Ms.
Daigle's belief was Redington-Fairview's initial decision not to terminate Dr. Stulc
and Mr. Leadbetter's previous comment to Ms. Daigle that --Dr. Stulc is not going
anywhere and if [you cannot] work with the doctor,? he would -find another
position? for her. PSAMF ? 244; DRPSAMF ? 244.
Ms. Daigle's position is not without controversy since at the time Ms. Daigle
made the report to the Maine Board of Licensure in Medicine, Redington-Fairview
had suspended Dr. Stulc. Nevertheless, accepting Ms. Daigle's version of the facts,
she has raised a genuine issue of material fact as to whether she had -specific
reason to believe that reports to the employer will not result in promptly correcting
the violation.? 26 M.R.S. ? 833(2). Ms. Daigle's assertion that Redington-Fairview
failed to act to protect its employees and patients is sufficient to make out a prima
facie case bringing her within Title VII and the MHRA's prohibition against
retaliation based on a plaintiff's opposition to its employment practice.
b.

Adverse Employment Action

Redington-Fairview asserts that Ms. Daigle claims she suffered adverse
employment actions consisting of ostracization by co-employees and management,
the February 18, 2008 written warning, the removal of her job duties as office
manager, her discharge, and the Hospital's engaging in dishonesty to deny her

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unemployment benefits. Def.'s Mot. at 14-15. The Hospital contends she cannot
make out a prima facie case based on these allegations. Id. The Court disagrees.
Ms. Daigle says that as a consequence of her complaint about Dr. Stulc, the
Hospital issued her a written warning, refused to promote her to the position of
office manager, removed her job duties as acting office manager, and then fired her
for a mistake, taking into account her written warning.

All of this--written

warnings, failure to promote, altering job duties, and termination--is sufficient to
carry Ms. Daigle's prima facie burden.
c.

Causation

Redington-Fairview next contends that Ms. Daigle failed to make out a prima
facie case that there is a causal connection between her complaint and its adverse
employment actions.

Viewing the evidence in the light most favorable to Ms.

Daigle, she has established: 1) that Dr. Stulc had acted inappropriately while
employed at Redington-Fairview, 2) that although the Hospital suspended him, it
had not terminated him, that he had lied about his prior employment history in his
application to the Board of Licensure in Medicine for a license to practice medicine
in the state of Maine, 3) that Ms. Daigle complained directly about Dr. Stulc to the
Board, 4) that Ms. Daigle's complaint to the Board is statutorily protected, 5) that
the Hospital issued her a written warning for invading an employee's privacy and
for failing to notify management about the Stulc information before filing with the
Board, 6) that the Hospital then not only failed to promote her but removed her job
duties as the acting office manager, 7) that it fired her when she made an error on a

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medical record and in so doing, considered its earlier written warning, and 8) that it
challenged her right to unemployment benefits. This string of evidence is sufficient
to make out a prima facie case of a causal connection between her complaint and
the Hospital's adverse employment actions.
d.

Prima Facie Case Conclusion

The Court concludes that Ms. Daigle produced sufficient evidence to make
out a case of retaliation under the MWPA.
3.

Legitimate Non-Retaliatory Reasons

Under McDonnell Douglas, the burden now shifts to Redington-Fairview to
-articulate[e] a legitimate, nondiscriminatory reason for the adverse employment
action.? Mesnick, 950 F.2d at 823. The Hospital has amply sustained its burden. It
says it sanctioned Ms. Daigle not for her complaint to the Maine Board of Licensure
in Medicine, but for her violation of co-employee privacy and her failure to follow
internal procedures before lodging her complaint, that it hired another person as
office manager because she was better qualified, that it fired Ms. Daigle because she
had committed a terminable act. The Court readily concludes that the Hospital has
sustained its burden of production in the burden-shifting framework.
4.

Pretext
a.

Legal Standards

Once an employer has met its burden of production, the burden shifts to the
employee -to show, unassisted by the original inference of discrimination, that the
employer's proffered reason is actually a pretext for discrimination of the type

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alleged.? Id. In other words, the -ultimate burden falls on the plaintiff to show that
the proffered legitimate reason is in fact a pretext and that the job action was the
result of the defendant's retaliatory animus.? Fennell v. First Step Designs, Ltd., 83
F.3d 526, 535 (1st Cir. 1996).
To meet this burden, the First Circuit has explained that -evidence of
retaliation can be direct or circumstantial.? DeCaire v. Mukasey, 530 F.3d 1, 20 (1st
Cir. 2008). Also, that an employer's action falls within an area of discretion does
not necessarily justify its action since -[d]iscretion may be exercised in ways which
are discriminatory or retaliatory.? Id. To withstand summary judgment, a plaintiff
need not -prove by a preponderance of the additional evidence that [retaliation] was
in fact the motive for the action taken. All a plaintiff has to do is to raise a genuine
issue of fact as to whether [retaliation] motivated the adverse employment action.?
Collazo, 617 F.3d at 50 (quoting Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d
424, 433 (1st Cir. 2000)) (alterations in Collazo). At the same time, the First Circuit
said that -Courts may not sit as super personnel departments, assessing the merits
- or even the rationality - of employers' nondiscriminatory business decisions.?
Mesnick, 950 F.2d at 825.
b.

Evidence of Pretext

The first question is whether Ms. Daigle has established a temporal
relationship between her complaint and the adverse employment action. The First
Circuit has repeatedly observed that -[a] showing of [an adverse employment
action] soon after the employee engages in an activity specifically protected by

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section 704 (a) of Title VII, 42 U.S.C. ? 2000e-3(a), is indirect proof of a causal
connection between the firing and the activity because it is strongly suggestive of
retaliation.? Oliver v. Digital Equipment Corp., 846 F.2d 103, 110 (1st Cir. 1988).
Ms. Daigle filed the complaint about Dr. Stulc with the Board of Licensure in
Medicine on January 25, 2008 and she received a written warning on February 18,
2008, an interval of less than one month. This interval is sufficient to allow a factfinder to conclude there is a causal connection between the complaint and the
adverse employment action. Calero-Cerezo v. United States Dep't of Justice, 355
F.3d 6, 25-26 (1st Cir. 2004) (finding a causal connection when the employer
disciplined the employee -roughly a month? after she filed an EEO complaint);
Mariani-Colon v. Dep't of Homeland Sec., 511 F.3d 216, 224 (1st Cir. 2007) (finding
a causal connection between allegations of discrimination in June 2002 and
termination in August 2002).
The next links in Ms. Daigle's causation chain include her April 2008 failure
to obtain the office manager position, the resulting reduction of her job duties, and
her November 2008 termination. Any argument that the causal chain has been
broken is contravened by Ms. Buckingham's testimony that the written warning
was a factor in the Hospital's decision to terminate Ms. Daigle. Thus, temporal
proximity suggests that the Hospital's actions in terminating Ms. Daigle were
influenced by her complaint to the Board.
Even so, -chronological proximity does not by itself establish causality,
particularly if the ?larger picture undercuts any claim of causation.'?

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CompUSA, Inc., 352 F.3d 472, 478 (1st Cir. 2003) (quoting Soileau v. Guilford of
Me., Inc., 105 F.3d 12, 16 (1st Cir. 1997)). Here, there is substantial evidence from
which a jury could well conclude that Redington-Fairview's actions from January
2008 onward were wholly unrelated to her complaint to the Board. First, there is
no direct evidence of retaliation--no hints from any written or oral statements from
the Hospital that confirm Ms. Daigle's position.
Second, the Hospital has presented a strong case that it did not sanction Ms.
Daigle for reporting Dr. Stulc. In fact, Hospital management said that based on the
Stulc records, they would have reported him too.

Rather, Redington-Fairview

clarified that it disciplined Ms. Daigle because she invaded a co-employee's privacy
and failed to inform the Hospital about Dr. Stulc's records before she filed the
complaint with the Board. Moreover, there is no suggestion in this record that the
Hospital disagreed at all with the substance of Ms. Daigle's complaint to the Board.
It separately commenced a disciplinary action against Dr. Stulc under the due
process provisions of its Medical Staff Bylaws, and Dr. Stulc's resignation, which
Ms. Daigle's complaint helped precipitate, avoided what might have been a
contentious and protracted series of hearings.
Third, regarding the hiring of Ms. Rice, Ms. Daigle concedes that Ms. Rice is
qualified to act as office manager and, in fact, Ms. Rice possessed some skills that
made her more qualified than Ms. Daigle. Furthermore, other than transferring
her managerial job duties to the new office manager, Redington-Fairview did not
otherwise act against Ms. Daigle until November 2008.

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Finally, Ms. Daigle made an extremely serious error in altering an informed
consent form without obtaining clarification from the physician. When combined
with her response, Redington-Fairview has a compelling argument that her actions
independently justified termination.
Nevertheless, at this stage, the Court is not acting as fact-finder and the
question is whether there are genuine issues of material fact that justify allowing
this case to proceed to a jury. The Court concludes there are.
D.

Punitive Damages Claim

Although Redington-Fairview strenuously contends that, even viewing the
evidence in the light most favorable to Ms. Daigle, the evidence would not permit a
punitive damages award, the short answer is that to reach the issue of punitive
damages, a jury would have had to conclude that Redington-Fairview retaliated
against Ms. Daigle because she complained to the Board of Registration in Medicine
about a predatory physician. Notwithstanding the Hospital's defenses, the Court
concludes that Ms. Daigle has raised genuine issues of material fact that preclude
summary judgment on her claim for punitive damages.
IV.

CONCLUSION
The Court GRANTS in part and DENIES in part Redington-Fairview

General Hospital's Motion for Summary Judgment.

The Court GRANTS

Redington-Fairview General Hospital's Motion for Summary Judgment as to Counts
IV and VIII and as to Count VII insofar as it is based upon allegations of a hostile
work environment. The Court DENIES the Motion as to Counts V and VI, and as to

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Count VII insofar as it is based upon allegations of retaliation. Finally, the Court
DENIES the Motion as to Tanya Daigle's punitive damages claim.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 27th day of June, 2011

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 465
. Case Document 24-1 Filed 12/08/09 Page 1 of3

LOGAN, MORTON RATLIFF
ATTORNEYS-AT-LAW

P.0. BOX 429'49 UNION STREET

MADISONVILLE. KY 42431
TELEPHONE meal-ms
mammal

LEW C. WILLIAM MORTON

0935-1999)

May 30, 2007-

VIA Facsimile

270-685-6879
Hon. David Yewell

221 West Second Street
Owenshoro. KY 42303

Re: Jarcslav P. Stole, MD.

Dear David:

I. have reviewed and discussed your letters of May 22 and May 25. 2007 with Dr.
Mark Browne, Vice President of Medical Affairs, Trover Health Systems.

In consideration of your ellent?s proposals and our telephone conference
concerning same, Dr. Browne and are agreeable to recommend the foll0wing provisions

respecting Dr. Stu lc's medical to the Board of Directors for ?nal approve! 
to settle and conclude the corrective actions.

1. Dr. Stole must undergo a evaluation at his own expense through
the Kentucky Physicians Health Foundation and should be under a program instituted by
them. Routine reports concerning Dr. Stulc's treatment should be provided to the
Medical Executive Committee and the Board of Directors. The MEG :lz'urther reserves the
right to modify requirements and monitoring as warranted.

2. Dr. Stole shall attend in person a funnel educational course ?Maintaining
Proper Boundaries? that is recommended by the Kentucky Physicians Health Foundation.
Completion of the course should be done in a timely manner and within the ?rst two
months following Dr. Smlc?s evaluation by the Kentucky Physicians Health Foundation.

3. A streng' letter ofprivate admonition should be issued to Dr. Stulc.
4. Dr. Stulc?a precautionary suspension  immediately lifted as the
Kentucky Physician Health Foundation has established a program that will assist Dr.

Suite in avoiding further behavior that would be deemed inappropriate. and a monitorlug
system has also been instituted consisdng of a chaperonc who will accompany Dr. Stale

EXHIBIT
A

 466
. Case Document 24-1 Filed 12/08/09 PageZofS

at all times while he is in the hospital. This chaperone shall be any one of the following
three persons: his wife, Dr. Diana Stale. Jennifer Boedigheirner of Dr. Stnle?s of?ce or
Deborah Oldharn of Dr. Stule?s of?ce, who should accompany him at all times while he
is in the hospital, the cost of which shall be born by Dr. Stole.

5. Dr. Slule must refrain Eton: further contact with complainants unless in the
context of patient care and any contact should be conducted in a public forum with the
chapetone present. The Complainants shall be identi?ed by Leizl? C. Ratliff to David 
chell who may inform Dr. Stulc of their identity on or after September 1, 2007.
Except for his wife Dr. Diana Dr. Stulc shall not communicate about this

identi?cation to any other person; and he shall not approach those taro persons for any
reason.

6. Dr. Stale must avoid unnecessary contact with hospital employees and
Spending idle time in their hospital work areas.

7. Dr. Stole should be prohibited from taking pictures with his camera phone or
any other device within the hospital. -

8. Dr. Smie should remain on a performance improvement plan for an
inde?nite period of time with Zero tolerance for validated behavioral occurrences. A
review of Dr. Stulc?s compliance with his performance improvement plan will be
conducted at least annually. Any Validated behavioral occurrences shall result in a
minimum of a 31 day suspension and shall be reported to the National Practitioner Data
Bank in accordance with federal regulations. To this date. no action regarding Dr. Stale
has been reported to the National Practitioner Data Bank. Any validated (by sworn
starement(s) of the alleged victim(s) allegations-ofsmual harassment will result in an
immediate precautionary suspension. Upon ?nal action by the Foundation Board of
Directors, any validated complaint of sexual harassment shall result in termination of
hospital privileges. The validated failure to ensure accompaniment by a cheperone while

in the hospital will result in immediate precautionary suspension and shall be grounds for
termination.

9. Dr. Stule's behavior will be monitored on a basis by the Vice
President of Medical Affairs. including reView o'lz? ongoing behavior modification
counseling and any other treatment that may be recommended following his
evaluation. Dr. Stale will be responsible for submitting reports to
and scheduling meetings with the Vice-President of Medical Affairs. Failure to comply
with this requirement would result in sanctions outlined in #8 above.

10. Should Trover received an inquiry?es) from another health care

provider(s) as to the status of the clinical privileges of Dr. Stale with Trover. the sole
response ol? Trotter shall be:

The records of 'l?rover Health SyStem re?ect that Dr. Stulc was placed on a
work improvement plan. An investigation into his conduct was completed. No 'i?inal

may?meettease-tenet teammate-i. Filed OB/Oili?wi?ege??ee   467

Case Document 24-1 Filed 12/08/09 Page 3 of 3

adverse action was taken againSt Dr. Stuic?s privileges. 

i . . 

39% prim Vere; A 529 d7 Jf??hd?vy ML 154% 2%
11. Dr. Stuic shall not directly or indirectly make derogatory or negative I

remarks or comments about Trover Health System. its directors, o??teers. management,

employees. or physicians to any third parties. Any validated occurrence shall result in

appropriate disciplinary action pursuant to the provisions of the Medical Staff bylaws.

12. Within seven (7) days of notice to 'Dr. Stuic (or his legal counsel, 'Mr.
Yeweii) of the approvi by Trotter Health Systems ot? this agreement Dr. Stulc shall meet
with the Vice-President of Medical Affairs or his dcsignce to address issues related to
completion of patient charts. Patient charts will be completed in a timely manner in
accordance with hospital policy.

13. Simultaneously with the approval of the foregoing by Trevor Health
Systems, Dr. Stule shall tender his resignation from the Medical Staff of Regional
Medical Center to become effective September 1. 2007 and shall agree not to reapply for
privileges inde?nitely.

if this is agreeable to your client, please no advise and we will attend to the
necessary calling olz?a Special meeting of the Board 01" Directors to consider this matter.

Very truly yours.

    

k0

TOTAL P.04