MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 ME	179

Docket: Cum-19-39

Argued: November	5,	2019

Decided: December	30,	2019

Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

KATHLEEN	WAUGH

v.

GENESIS	HEALTHCARE	LLC	et	al.

GORMAN,	J.

[¶1]		Kathleen	Waugh appeals	from a	summary	judgment	entered	in	the	

Superior	Court	(Cumberland	County,	Horton,	J.)	in	favor	of	Genesis	Healthcare

LLC	and	Westbrook	Operations,	LLC, d/b/a	Springbrook	Center	(Springbrook)	

on	 Waugh’s	 complaint	 for	 defamation	 and	 “slander/libel	 per	 se.”	 	 Waugh	

contends	 that the	court	erred	by	concluding	 that	 the	 statements	at	issue	are	

subject	to	a	conditional	privilege.		We	affirm	the	judgment.

I.		BACKGROUND

[¶2]	 	 In	 2017,	 Kathleen	 Waugh	 filed	 a	 complaint	 against	 Genesis	

Healthcare	 and	 Springbrook	 (collectively,	 Genesis)	 in	 the	 Superior	 Court	

alleging	 defamation and	 slander or	 libel	 per	 se,	 for	 which	 she	 sought	
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compensatory	and	punitive	damages.1		Waugh	alleged	that	Genesis	terminated	

her	contract	as	a	registered	nurse	at	Springbrook	based	on	false	allegations	of	

patient	abuse.2		

[¶3]		Genesis	moved	for	a	summary	judgment,	and	Waugh	opposed	the	

motion.		Viewing	the	supported	statements	of	material	facts	in	the	light	most	

favorable	to	Waugh,	as	the	nonprevailing	party,	the	summary	judgment	record	

establishes	the	following.		See	Oceanic	Inn,	Inc.	v.	Sloan’s	Cove, LLC, 2016	ME	34,	

¶	25,	133	A.3d	1021.			

[¶4]		Springbrook	provides	care	services	to	incapacitated	and	dependent	

adults.3		Waugh	is	a	registered	nurse	who	worked	 for	a	staffing	agency,	Core	

Medical	Group,	from	April	of	2015	through	August	of	2016.		In	January	of	2016,	

Core	 placed	Waugh to	work	 as	 a	 nurse	 at	 Springbrook.	 	On	 July	 30,	 2016,	 a	

 1		Waugh	also	asserted	a	claim	 for	interference	with	advantageous	economic	relations.		Waugh	

does	not	challenge	the	court’s	(L.	Walker,	J.)	dismissal	of	that	count	pursuant	to	M.R.	Civ.	P.	12(b)(6)

for	failure	to	state	a	claim.		

2		Waugh	alleged	in	her	complaint	that	she	was	terminated	by	Springbrook	in	retaliation	for	her	

reports	to	management	that	understaffing	had	created	unsafe	conditions	for	residents	and	staff	at	

the	facility	and	that	Genesis’s	“actions	amount[ed] to	reckless	disregard	for	[Waugh’s]	rights	under	

the	[Whistleblowers’	Protection	Act (WPA),	26	M.R.S.	§§	831-840	(2018),]	and	 the	[Maine	Human	

Rights	Act,	5 M.R.S.	§§	4551-4634	(2018)],”	but	she	did	not	allege	a	violation	of	either	statute	as	a	

cause	of	action	in	her	complaint.		

3		The	summary	judgment	record	does	not	disclose	whether	or on	what	basis	Genesis	Healthcare	

LLC	is	a	proper	defendant	in	this	matter.		The	only	suggestion	of	Genesis	Healthcare’s	relationship	to	

Waugh	or	Springbrook	was	in	Waugh’s	statements	of	material	 facts,	which	were	properly	denied.		

Genesis	 Healthcare	 has	 not	 moved	 to	 dismiss	 the	 complaint	 on	 that	 ground,	 however,	 and	 it	

otherwise	appears	to	have	aligned	its	interest	with	that	of	Springbrook.			
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Springbrook	resident	reported	to	another	nurse	that,	on	the	previous	evening,	

Waugh	had	“ripped	 the	call	bell	off	 [his]	shirt”	and	placed	it	out	of	his	reach,	

stated	“how	do	you	like	 that?”	 to	him,	and	 told	him that	he	would	instead	be	

checked	 on	 at	 regular	 intervals.	 The	 resident	 explained	 that	 Waugh	 had	

accused	 him	 of	 calling	 for	 assistance	 too	 often.	 In	 response	 to	 that	 report,	

Springbrook	began	an	investigation	that	included	speaking	to	the	resident	and	

to	Springbrook	employees	who	had	been	on	duty on	the	evening	of	July	29.		The	

investigation	showed	that	the	resident	repeated	his accusation	about	Waugh	to	

other	 staff	 members.	 	 Springbrook	 employees,	 including	 certified	 nursing	

assistants	(CNAs),	provided	witness	reports	about	the	evening	of	the	incident	

and	 the	 resident’s	 allegations.	 	 Springbrook	 also	 asked	 Waugh	 about	 the	

resident’s	claim,	and	she	denied	having	removed	the	resident’s	call	bell.		

[¶5]		While	it was	conducting	its	investigation,	Springbrook—through	its	

director	 of	 nursing—sent	 Core	 a	 form	 document	 entitled	 “Travel	 Employee	

Performance	Counsel	Notice.”		In	that	notice,	the	director	of	nursing	described

the	incident	at	issue by	writing,	“[The	resident]	alleges	neglect	and	informed	

DHHS.”		In	response	to	a question	posed	on	the	form,	“Were	there	witnesses	to	

the	 above	 incident?”	 Springbrook’s	 director	 of	 nursing	 checked	 the	 box	
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indicating	 “Yes”	 and	 stated,	 “Staff	 provided	 statements	 along	 with	 [the]

resident.”		

[¶6]	 	 From its investigation,	 Springbrook	 concluded	 that	 Waugh’s	

conduct	violated	the	call	bell	policy,	did	not	provide	an	acceptable	level	of	care	

to	 the	 resident,	 and	was	 inconsistent	with	 Springbrook’s	mission	 to	 provide	

quality	care	and	protect	residents	from	potential	or	actual	abuse	or	neglect.		On	

August	 3,	 2016,	 Springbrook’s	 human	 resources	 manager emailed	 Genesis	

Healthcare’s	 regional	 human	 resources	 manager	 to	 request	 approval	 to	

terminate	 Waugh’s	 contract.	 	 In	 that	 email,	 Springbrook’s	 human	 resources	

manager	 wrote,	 “[Waugh] denies	 taking	 the	 call	 bell	 away,	 but	 this	 is	 not	

supported	by	 the	CNA	 and	 resident	interviews.”		Based	 on	its	determination	

that	 Waugh	 had	 violated	 its	 policy,	 Springbrook	 terminated	 Waugh’s	

assignment	 to	 its	 facility.	 	 Core	then	 declined	 to	 give	 Waugh	 any additional	

assignments.		

[¶7]	 	 By	 judgment	 dated	 December	 18,	 2018,	 the	 court	 granted	 a	

summary	judgment	in	favor	of	Genesis	as	to	both	counts.		Waugh	appeals.		

II.		DISCUSSION

[¶8]	 	 Waugh	 contends	 that	 the	 court	 erred	 by	 granting	 a	 summary	

judgment	in	favor	of	Genesis	on	her	claims	of	defamation	and	slander or	libel	
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per	 se	 as	 to	 two	 statements:4 (1)	 Springbrook’s	 human	 resources	manager’s

August	3,	2016,	email,	in	which	the	manager stated	that	“[Waugh]	denies	taking	

the	call	bell	away,	but	this	is	not	supported	by	the	CNA	and	resident	interviews”	

and	 (2) the	 notice	 sent	 to	 Core	 in	 which	 Springbrook’s	 director	 of	 nursing

stated,	“[The	resident]	alleges	neglect	and	informed	DHHS”	and	answered	the	

question,	 “Were	 there	witnesses	 to	 the	above	incident?”	by	checking	 the	box	

marked	“Yes”	and	stating,	“Staff	provided	statements	along	with	[the] resident.”		

[¶9]		We	review	de	novo	the	grant	of	a	summary	judgment	by	considering	

all	 of	 the	undisputed	 facts	and	 reasonable	inferences	 from	 the	 statements	 of	

material	facts	in	the	light	most	favorable	to	Waugh,	as	the	nonprevailing	party.		

See Drilling	&	Blasting	Rock	Specialists,	Inc.	v.	Rheaume,	2016 ME	131,	¶¶	14,	29,	

147	 A.3d	 824;	 Oceanic	 Inn,	 Inc.,	 2016	 ME	 34,	 ¶	 25,	 133	 A.3d	 1021.	 	 As	 the	

defendant	moving	for	a	summary	judgment,	it	was	Genesis’s	initial	burden	to	

establish	 that	 there	 was	 no	 genuine	 dispute	 of	 material	 fact	 and	 that	 the	

undisputed	facts	entitled	it	to	a	judgment	as	a	matter	of	law.		See	Oceanic	Inn,	

Inc.,	2016	ME	34,	¶	26,	133	A.3d	1021.		It	was	then	Waugh’s	burden	to	make	out	

 4		We	do	not	consider	Waugh’s	assertion	that	Core	also	published	defamatory	statements	because	

Core	is	not	a	defendant	in	this	matter.		We	also	do	not	consider	the	other	statements	that	Waugh	

identified	as	defamatory	before	the	trial	court	that	she	does	not	press	on	appeal.		
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a	prima	 facie	case	 for	 each	claim	and	demonstrate	 that	a	genuine	dispute	 of	

material	fact	exists	as	to	each.		See	id.

[¶10]		Defamation	requires	proof,	by	a	preponderance	of	the	evidence,	of	

(1)	a	false	and	defamatory	statement	concerning	another;

(2)	an	unprivileged	publication	to	a	third	party;

(3)	 fault	 amounting	 at	 least	 to	 negligence	 on	 the	 part	 of	 the	

publisher;	[and]

(4)	 either	 actionability	 of	 the	 statement	 irrespective	 of	 special	

harm	or	the	existence	of	special	harm	caused	by	the	publication.

Rippett	 v.	 Bemis,	 672	 A.2d	 82,	 86	 (Me.	 1996)	 (quotation	 marks	 omitted);	

see Lester	 v.	 Powers,	 596	 A.2d	 65,	 69	 (Me.	 1991);	see also Staples	 v.	 Bangor	

Hydro-Elec. Co.,	629	A.2d	601,	604	(Me.	1993);	Restatement	(Second)	of	Torts	

§ 558	(Am.	Law	Inst.	1977).		

[¶11]		“Special	harm” in	 the	context	 of	defamation	means	economic	 or	

pecuniary	 harm. Withers	 v.	 Hackett,	 1998	 ME	 164,	 ¶	 9,	 714	 A.2d	 798;	

Restatement	(Second)	of	Torts	§	575	cmt. b (Am.	Law	Inst.	1977).	A	defamatory	

communication	 may	 be	 actionable	 without	 special	 harm	 if	 the	 defamatory	

communication	 would	 adversely	 affect	 the	 plaintiff	 in	 her	 business	 or	

profession,	 either	 through	 spoken	words	 (slander	per	 se)	 or	in	written	 form	
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(libel	per	se).	 See Cookson	v.	Brewer	Sch. Dep’t,	2009	ME	57, ¶	27,	974	A.2d	276;	

Ballard	v.	Wagner,	2005	ME	86, ¶	10,	877	A.2d	1083.

[¶12]		We	agree	with	the	Superior	Court	that	Waugh	failed	to	establish	in	

the	summary	judgment	record	at	least	one	of	these	elements	for each	cause	of	

action.	 	 More	 particularly,	 even	 assuming	 that	 Waugh	 met	 her	 prima	 facie	

burden	as	to the	falsity	of	the	statements	at	issue,	negligence	in	the	publication	

of	 the	statements,	and	special	harm	suffered	as	a	 result	of	 the	publication or	

actionability	regardless	of	special	harm (the	first,	third,	and	fourth	elements	of	

defamation),	we	conclude	that	Waugh	did	not	meet	her	burden	to	establish,	on	

a	 prima	 facie	 basis,	 that	 the	 statements	 were	 unprivileged	 publications	 to	 a	

third	party (the	second	element	of	defamation).		See	Rippett,	672 A.2d	at	86;	see	

also	Plante	v.	Long,	2017	ME	189,	¶ 9,	170	A.3d	243.		

[¶13]	 	 The	 unprivileged	 publication element	 requires	 a plaintiff	 to	

establish	 that	 the	defendant’s	 statement	 to	a	 third	person	is	not	 subject	 to	a	

conditional	 privilege.	 	 Rippett,	 672	 A.2d	 at	 86-87.	 	 “A	 conditional	 privilege	

against	liability	for	defamation	arises in	settings where	society	has	an	interest	

in	 promoting	 free,	 but	 not	 absolutely	 unfettered,	 speech.”	 	 Lester,	 596	 A.2d	

at 69.		Genesis	enjoys	a	conditional	privilege	concerning the	statements	of	the	

human	resources	manager and	the	director	of	nursing as	“[s]tatements	made	
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in	 the	 course	 of	 an	 investigation	 into	 an	 employee’s	 actions	 for	 disciplinary	

purposes.”		Morgan	v.	Kooistra,	2008	ME	26,	¶	35,	941	A.2d	447.			

[¶14]		When	a	conditional	privilege	does	exist,	 the	defendant	loses	 the	

privilege—and	subjects	itself to	liability	for	defamation—only	if	it abuses	the	

privilege	by	making	 the	 statement	when	it either	 knows	 the	 statement	 to	be	

false	or	acts	in	reckless	disregard	of	its	truth	or	falsity	(also	known	as	“actual	

malice”)	or	when	it	“act[s] entirely	out	of	ill	will	toward	[the	plaintiff].” Staples,	

629 A.2d	at	604.

[¶15]		Waugh	argues	that	because	Genesis	admits	that	no	CNA	verified

that	 Waugh	 had,	 in	 fact,	 taken	 the	 resident’s	 call	 bell—i.e.,	 because	 Genesis	

admits	the	falsity	of	any	statement	that	the	call	bell	incident	was	verified	by	a	

CNA—that necessarily	 means	 that	 Genesis	 acted	 with	 knowledge	 of	 or	 in	

reckless	disregard	of	 the	 falsity	of	 the	allegations	or	with	ill	will	in	reporting

that	the	resident’s	account	was	verified.5		She	also	contends	that	ill	will	can	be	

 5 Waugh	asserts	that	the	statement	made	by	Springbrook’s	human	resources	manager—“[Waugh]	

denies	taking	the	call	bell	away,	but	this	is	not	supported	by	the	CNA	and	resident	interviews”—is	a	

false	 statement	 because	 it	 was	 intended	 to suggest	 that	 the	 resident’s	 complaint	 of	 the	 call	 bell	

incident	had	been verified	by	a	CNA.		For	purposes	of	this	opinion,	we	accept	that	assertion,	although	

an	equally	credible	reading	of	the	statement	is	that	Waugh’s	denial of	the	occurrence	could	not	be	

verified	by	any	of	the	CNAs.		Other	than	the	resident	and	Waugh, no	one	was	present	in	the	resident’s	

room	at	the	time	of	the	challenged	events,	and	no	witness	other	than	Waugh	and	the	resident	claimed	

to	have	heard	their conversation.		
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inferred	 from	 the	 evidence	 regarding	her prior	 complaints	 that	 Springbrook	

was	understaffed	and	unsafe.		We	disagree.

[¶16]	 	The	 only	 evidence	 in	 the	 summary	 judgment	 record	 of	 Genesis	

acknowledging	that	no	CNA	had	verified	the	resident’s	version	of	the	call	bell	

incident	came	from	deposition	testimony	given	in	the	course	of	this	litigation.		

The	fact	that	Genesis,	more	than	two	years	after	the	call	bell	incident	and	the	

statements	at	issue	were	made,	agreed	that	no	CNA	confirmed	that	Waugh	took	

away	the	call	bell	may	be	relevant	to	the	falsity	of	the	facts	pursuant	to	the	first	

element	of	defamation,	but,	by	itself,	it	has	no	bearing	on	whether	the	human	

resources manager	 or	 director	 of	 nursing entertained	 any	 doubts	 about	 the	

truthfulness	of	the	statements	at	the	time	the	statements	were	made.	 See Plante,	

2017	ME	189,	¶	12,	170	A.3d	243 (distinguishing	the	falsity	element	in	a	libel	

claim	from	the	element	of	malice).		

[¶17]	 	 Further,	 although	 Waugh	 included	 in	 her	 summary	 judgment	

filings	more	 than	 fifty	statements of	 fact regarding	her	complaints	about	 the	

conditions	 at	 Springbrook that	 she	 asserted	were	 “material”	 to	 the	case,	 she	

offered	no	evidence	to	link	those	reports	to	her	defamation	or	slander or	libel	

per	 se	 claims	 beyond	 mere	 speculation.6	 	 See Lester,	 596	 A.2d	 at	 72	 (“Even	

 6	 	 Waugh’s	 reliance	 on	 Cormier	 v.	 Genesis	 Healthcare	 LLC,	 is	 also	 unfounded.	 	 2015	 ME	 161,	

129 A.3d	944.		In	Cormier,	we	determined	that	the	reasonable	inferences	that	could	be	drawn	from	a	
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though	[the	plaintiff]	is	entitled	to	the	full	benefit	of	all	favorable	inferences	that	

may	 be	 drawn	 from	 the	 evidence,	 [she] is	 not	 entitled	 to	 the	 benefit	 of	

unsupported	 speculation.”	(alteration	 omitted)	(citation	 omitted)	 (quotation	

marks	omitted)).		

[¶18]		As	a	matter	of	law,	Waugh	has	produced	no	evidence	from	which	

a	fact-finder	could	infer	that	either	of	the	Springbrook	representatives,	when	

they	 made	 the	 statements	 alleging	 improper	 patient	 care,	 knew	 that	 their	

statements	were	untrue,	acted	in	reckless	disregard	of	their	truth	or	falsity,	or	

acted	solely out	of	ill	will	toward	Waugh.7		See Staples,	629	A.2d	at	604;	Lester,	

596 A.2d	at	69	&	n.7.	 In	the	absence	of	such	prima	facie	evidence	that	Genesis	

abused	 the	 conditional	 privilege	 that	 otherwise	 protects	 the	 statements,	

Genesis	 was	 entitled	 to	 a	 summary	 judgment	 in	 its	 favor	 as	 to	 Waugh’s	

defamation	claim.		In	addition,	because	Waugh’s	claims	for	slander or	libel	per

 

CNA’s	complaints	about	staffing	levels,	made	shortly before	she	was	suspended	and	later	discharged	

from	her	employment	in	a	nursing	home,	were	sufficient	to	generate	an	issue	of	fact	as	to	whether	

the	employer	violated	the	WPA.		Id. ¶¶	17-23.		Waugh	asserts	that	Cormier thereby	allows	 for	“an	

inference	of	retaliation.”		Retaliation	was	an	element	of	the	WPA	claim	in	Cormier,	but	Waugh	did	not	

assert	a	WPA	claim,	and	retaliation	is	not	an	element	of	defamation.		Id. ¶	8;	Rippett v.	Bemis,	672	A.2d	

82,	86	(Me.	1996);	see	supra n.2.		

7		What	Waugh	truly	appears	to	challenge	is	Genesis’s	evaluation	of	the	information	it	gathered	in	

its	investigation	of	the	call	bell	incident	and	its	decision	to	discharge	Waugh	on	that	basis—i.e.,	that	

Genesis	believed	the	resident’s	version	of	events	and not Waugh’s—rather	than	the	substance	of	the	

statements	that	Genesis	made	about its	decision	to	discharge	Waugh.		Whether	Genesis	may	have	

misjudged	the	credibility	of	 those	involved	in	the	incident	is	not	 relevant	 to	Waugh’s	defamation	

claims.
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se	also	depend	on	proof	of	the	same	element,	Genesis	was	entitled	to	a	summary	

judgment	in	its	favor	as	to	those	causes	of	action as	well.	 See Cookson,	2009	ME	

57,	¶	27,	974	A.2d	276;	Ballard,	2005	ME	86,	¶	10,	877 A.2d	1083.		

The	entry	is:

Judgment	affirmed.	

Guy	D.	Loranger,	Esq. (orally),	Law	Office	of	Guy	D.	Loranger,	P.A.,	Old	Orchard	

Beach,	for	appellant	Kathleen	Waugh

James	R.	 Erwin,	Esq. (orally),	and	Elizabeth	B.	 Rao,	 Esq.,	Pierce	 Atwood	 LLP,	

Portland,	for	appellees	Genesis	Healthcare	LLC and	Westbrook	Operations,	LLC

Cumberland	County	Superior	Court	docket	number	CV-2017-339

FOR	CLERK	REFERENCE	ONLY