Appellant Sharon Dulude appeals a ruling of the Chittenden Superior Court granting Fletcher Allen Health Care’s (FAHC) motion for summary judgment on claims of breach of contract, promissory estoppel, discharge in violation of public policy, intentional infliction of emotional distress (IIED), and defamation. Dulude
The material facts are as follows. Dulude was employed as a nurse with FAHC 1 from July 1,1991, to April 20,1995. Dulude did not sign a contract of employment, and the duration of her employment was open-ended. In the fall of 1992, FAHC terminated Dulude for allegedly diverting narcotics, falsifying her patients’ medical records, and failing to meet the standard of practice regarding the administration of medication. A medication and narcotic audit was performed by a committee comprised of the Head of Pharmacy at FAHC, the Vice President of Nursing, the Nurse Manager, and the Head of Human Resources. Based on their audits, the committee felt there was enough evidence to substantiate the fact that Dulude’s narcotic practice was significantly different from her coworkers’. Dulude appealed her termination to FAHC’s Vice President of Nursing, and FAHC reinstated her on November 23,1992.
Dulude’s letter of reinstatement noted that her pattern of medicating patients was distinctly different from other professional nurses on her unit and that she, as an individual, repeatedly signed out and documented the use of as many Percocet in twenty-four hours as all unit nurses combined. The letter acknowledged that Dulude and FAHC had discussed Dulude’s philosophy of pain medication and that her return to work would be premised on specific conditions requiring her to receive supervision and education in the administration of narcotic drugs.
On April 12,1993, a patient complained that Dulude repeatedly and strongly urged him to accept Percocet for pain, despite his refusal, to the point of making him feel harassed. The complaint resulted in a letter of understanding 2 dated May 17,1993, which outlined a protocol requiring Dulude to discuss patients’ pain medication needs with a support person and gain the support person’s consent prior to administering any controlled substance. The letter concluded: “[flailure to comply with any aspect of this letter will result in further disciplinary action and may result in termination.”
On June 25,1993, a decision-making leave
3
was written for Dulude’s failure to
On October 29, 1993, a second letter of understanding noted Dulude’s compliance with the decision-making leave of June 1993 and her general improvement in pain management skills. The letter stated that: “Any change in her pattern of administration which is deemed aberrant or any questionable issues surrounding the administration of controlled substances for pain will be evaluated----This may lead to further investigations and a reinstatement of restrictions.” All restrictions were then removed.
On March 23, 1994, a third letter of understanding addressed a second incident where Dulude, who came on duty at 11:20 p.m., administered Percocet to a patient at 11:30 p.m. and again at 3:30 a.m. The patient was extremely nauseated and exhausted the next day. Dulude’s nurse manager noted that these medication interventions were not appropriate. This third letter of understanding also referred to another audit that was done on Dulude’s unit, the results of which showed that Dulude consistently administered more Percocet than any other nurse. The letter strongly suggested that she get help in understanding her method of administering pain medication. Dulude agreed to consult with an outside counselor regarding her “reasons for” and her “method of’ administering pain medication.
In September 1994, Dulude’s shift supervisor stated that there was still concern over Dulude’s aberrant controlled substance administration pattern and advised Dulude that all nurses on the shift, including Dulude, should administer no more than fifteen to thirty-five percent of the total pain medication administered on the unit. In November 1994, FAHC called Dulude and informed her that her figures for a given week were at seventy-two percent and that she needed to lower her numbers.
On December 11, 1994, a third patient complained that his Tylenol had been substituted for Percocet on two occasions. Dulude argues that she never substituted Tylenol for Percocet and any suggestion that she did would never have occurred but for the fact that her reputation had been ruined by false accusations in 1992. Dulude contends that had FAHC conducted a competent investigation of the 1994 episode, it would have discovered that no substitution ever occurred.
Finally, by letter dated February 9, 1995, FAHC notified Dulude that her employment would be terminated effective February 15, 1995. The letter outlined the several instances of patient complaints discussed above. The letter also referred to various audits performed by nurse clinicians, managers and administrators, which confirmed that Dulude had continually dispensed and administered more Percocet than any other nurse on her unit. FAHC noted in the letter that none of their attempts to counsel and educate Dulude produced more than a temporary improvement in her narcotic administration practices and that Dulude’s practices created a level of patient risk that could not be tolerated at FAHC.
Dulude appeared before the grievance panel on March 9,1995. The grievance panel denied her grievance on March 13, 1995. Dulude appealed this denial to the president and met with the president’s
On April 17,1998, Dulude filed a wrongful employment termination action and related tort claims in superior court against FAHC. The case was removed to federal court because of two federal constitutional claims: denial of due process and equal protection. These two claims were disposed of by the federal district court before the case was remanded to the superior court for resolution of Dulude’s state claims. The issues presented to the superior court for resolution included: breach of contract, promissory estoppel, discharge in violation of public policy, intentional infliction of emotional distress, defamation, and loss of consortium.
On January 9,2001, the superior court granted FAHC’s motion for summary judgment on the breach of contract, promissory estoppel and defamation issues. FAHC filed a motion to amend the summary judgment decision, and the court made a later entry on March 8,2001, dismissing Dulude’s remaining claims of intentional infliction of emotional distress and discharge in violation of public policy. The superior court also dismissed the loss of consortium claim as a derivative claim that failed upon dismissal of the primary claims. Dulude then appealed the decision granting summary judgment to FAHC, except with respect to the loss of consortium claim.
In reviewing a grant of summary judgment, this Court applies the same standard as the trial court.
Ross v. Times Mirror, Inc.,
I.
Dulude first argues that the court erred in deciding on summary judgment the question of whether the employee manual and certain oral assurances made by FAHC amounted to modification of her at-will employment status to the effect of prohibiting her termination without cause. The court held that Dulude’s evidence did not show, as a matter or law, that a modification had occurred. She claims that the question should have been submitted to a jury for determination.
As an employee hired for an indefinite period, Dulude is presumed to have been an at-will employee.
Taylor v. Nat’l Life Ins. Co.,
In a case governed by a specific just cause clause in a collective bargaining agreement, this Court defined “just cause” for employment termination as some “substantial shortcoming detrimental to the employer’s interests, ... which the law and a sound public opinion recognize as a good cause for his dismissal.”
In re Brooks,
It is undisputed that Dulude was terminated for performance reasons related to her questionable narcotic administration practices and patient complaints. Dulude does not claim that the reasons stated by FAHC for the termination decision were not the employer’s true motivating factors. Rather, she simply claims that her narcotic administration practices were more appropriate. From this assertion she claims that there exists a question of material fact as to whether or not FAHC had just cause to dismiss her and that she is entitled to have a jury make this factual determination.
The undisputed facts in this case establish that FAHC, under an objective good faith standard, had just cause to terminate Dulude’s employment. FAHC, concerned at the very least with Dulude’s failure to comply with the multiple letters of understanding, and with a potential threat to patient safety looming, warned Dulude repeatedly that her narcotic administration practices were inconsistent with accepted practices. In addition, there were three patient complaints, all relating to Dulude’s narcotic administration, which raised questions about her competence in this area. These long-standing performance issues, made known to Dulude through letters of understanding and conversations with her supervisors, coupled with a series of incidents involving questionable narcotic administration, constitute substantial evidence to support FAHC’s decision to terminate her. Dulude does not dispute that she knew FAHC was concerned with her narcotic administration practices and that failure to change her methods would put her employment with FAHC at risk. Nor does she deny she was warned. She simply continues to assert that her philosophy of narcotic administration is best. Dulude has raised no issue of material fact concerning FAHC’s reasonable belief that her administration of narcotics was faulty. As the employer with ultimate responsibility, FAHC may, indeed must, set its own standards for drug administration.
II.
Dulude next argues that the court erred by granting summary judgment on her promissory estoppel claim. We have held that the doctrine of promissory estoppel may modify an employment contract that is otherwise terminable at will and provide a remedy for a wrongful discharge.
Foote v. Simmonds Precision Prods. Co.,
III.
Dulude also claims that her termination constituted a wrongful discharge in violation of public policy. We have held that an at-will employee can maintain a separate, independent claim for wrongful discharge in violation of public policy.
Payne v. Rozendaal,
In
Payne,
this Court defined public policy as “the community common sense and common conscience, extended and applied throughout the state to matters of public morals, public health, public safety, public welfare, and the like.”
IV.
Dulude’s next claim is that FAHC’s actions, which caused Dulude’s wrongful discharge, were outrageous and caused her severe emotional injury. The trial court ruled that this claim had no merit. FAHC contends that Dulude’s claim for IIED filed on April 17,1998, . is time-barred, or in the alternative, that there is insufficient evidence to support a claim that its conduct was outrageous. We affirm the trial court’s decision to grant summary judgment to FAHC on this issue.
A claim for IIED exists when the defendant’s extreme and outrageous conduct, done intentionally or with reckless disregard of the possibility of causing emotional distress, causes the plaintiff to suffer extreme emotional distress.
Farnum v. Brattleboro Retreat, Inc.,
Dulude has made the following claims in support of her action for IIED. Viewed in a light most favorable to her, she contends that FAHC acted outrageously when it: (1) allowed a nurse with a known chemical dependency to supervise and discharge Dulude in 1992; (2) turned a patient’s general concern about Tylenol being substituted for his Percocet into a complaint against Dulude; (3) terminated Dulude in 1995 because its quota method of assessing Dulude’s medication administration was unprofessional and unreasonable; and (4) conducted the disciplinary proceedings leading up to the discharge and finally discharged her.
FAHC’s alleged conduct falls far short of being so outrageous in character and so extreme in degree as to go beyond all possible bounds of decent and tolerable conduct in a civilized community. First, Dulude has failed to present any evidence that offers a causal connection between her discharge and resulting emotional distress and her nurse manager’s chemical dependency problem in 1992. She offers no evidence to suggest that the 1992 nurse manager’s investigation and Dulude’s subsequent termination were not the result of the manager’s duty to investigate reports of improper narcotic administration practices. As a matter of law, such action by the nurse manager and FAHC was not unreasonable nor was it outrageous. Second, FAHC’s investigation into a patient complaint about drug administration on Dulude’s unit is not only reasonable, but expected of a licensed hospital. Third, any termination of Dulude for failure to conform her narcotic administration practices to FAHC’s requirements does not amount to a violation of an implied just cause employment contract, let alone behavior that is so severe a reasonable person should not be expected to endure it.
Finally, this Court has also held that mere termination of employment will not support an emotional distress claim, but if “the manner of termination evinces circumstances of oppressive conduct and abuse of a position of authority vis-a-vis plaintiff, it may provide grounds for the tort action.”
Crump v. P & C Food Markets, Inc.,
V.
Finally, Dulude appeals the trial court’s grant of summary judgment on her defamation claim and argues that such claim is not
time-barred. The parties are in agreement that a defamation claim must be brought within three years after the cause of action accrues. 12 V.S.A. § 512(3). A cause of action in defamation is generally said to accrue on the date of publication or circulation. See
Fleischer v. Inst. for Research in Hypnosis,
Dulude argues that FAHC first defamed her in November 1992 when her supervisor published a false report that stated that Dulude diverted narcotics and falsified records. FAHC then allegedly republished this defamatory statement to a patient and nurse in December 1994. Dulude filed her defamation claim on April 17, 1998. Dulude’s claim will therefore be time-barred if, prior to April 17,1995, she had discovered facts constituting the basis for a claim of defamation, or facts existed that were sufficient to put a person of ordinary intelligence on inquiry which, if pursued, would lead to the discovery of such facts.
On March 9, 1995, in her written submission to the grievance panel, Dulude stated that “her reputation was ruined in 1992 and 1993 by the false statements of ... my unit supervisor.” Dulude was admittedly aware of the alleged defamatory statements made in 1992 more than three years before she filed this present action, and therefore her claim with respect to this alleged defamation is time-barred.
In her submission to the grievance panel, Dulude also stated that the nurse who worked with the patient to whom the statement was
allegedly republished purposely solicited a complaint from him because “she was aware of my reputation caused by ... false accusations against me in 1992 and 1993.” Dulude argues, however, that it was reasonable for her not to
Dulude also maintains that the defamatory statements were repeated to á fellow nurse on their unit and that she could not have discovered such defamatory statements until the nurse’s deposition on May 18,1999. On that date, the nurse testified that she learned of the reason for Dulude’s termination “from what was said on the unit.” We find that such rumors regarding Dulude’s termination are insufficient to establish a claim of defamation against FAHC. See
Szot v. Allstate Ins. Co.,
Affirmed.
Notes
Fletcher Allen Health Care (FAHC) was still known as the Medical Center Hospital of Vermont (MCHV) when Dulude was first terminated in 1992. MCHV became FAHC just prior to Dulude’s second termination in 1995. To avoid confusion, all reference herein will be to FAHC.
A letter of understanding, according to FAHC’s Employee Relations Corrective Action policy F-6, is a letter or document regarding poor performance or policy violation©. In a progressive format this step would follow a verbal counseling or, for a more serious situation, could be the starting point.
A decision-making leave or day is a day off without pay, during which the employee should assess his/her commitment to the job and whether they are meeting performance expectations. The employee receives a letter documenting the poor performance and must then indicate his/her intention to meet the expectations or resign from the position.