MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 ME 179 Docket: Cum

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- 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	privileg e . 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	 sought2 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, ¶ 2 5,	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 20 1 6, Core	 placed Waugh to	work as	 a	 nur se 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	e ither	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 Waug h	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.3 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	Sprin gbrook	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	deni ed	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	nur sing	d escrib ed 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	 box4 indicating	 “Y es”	 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	ab use	or	neglect.		On August	 3,	 2016, Springbrook’s human	 resources	 manager emailed	 Genesis Healthcare’s	 r egional h uman r esources m anager	 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 a ny additional assignments

. [¶ 7 ] By	 judgment	 dated	 December	 18,	 2018,	 the	 court	 granted	 a summary	judgment	in	favor	of	Genesis	as	to	both	counts.		Waugh	appeal s . 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 libel5 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	no t	supported	by	the	CNA	and	resident	interviews” and	 (2) the no tice	 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?” b y	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
materi al	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	t hen	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	n ot	press	on	appeal.6 a	prima	 facie	case	 for	 each	claim	and	demonstrate	 that	a	genuine	dispute	 of material	fact	exists	as	to	each. See	id. [¶1 0 ] D efamation requires proof,	by	a	preponderance	of	the	evidence,	of (1)	a	false	and	defamatory	state ment	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.	 199 6 ) (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). [¶1 1 ] “ 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	 form7 (libel	per	se)

. See Cookson	v.	Brewer Sch

. D ep’t ,	2009	ME	57 , ¶	27,	974	A.2d	276 ; Ballard	v.	Wagner ,	2005	ME	86 , ¶	10,	877	A.2d	1083

. [¶1 2 ] We	agree	with	the	Superior	Court	that	Waugh	failed	to	establish	in the	summary	judgment	record	at	least	one	of	th es e	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 (th e	second element	of	defamation)

. See	Rippett ,	672 A.2d	at	86 ; see also	Plante	v.	Long ,	2017	ME	189,	¶ 9,	170	A.3d	243. [¶1 3 ] 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	made8 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. [¶1 4 ] 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. [¶1 5 ] 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	the ir co nversation.9 inferred	 from	 the	 evidence	 r egarding her prior	 complaints	 that	 Springbrook was	understaffed	and	unsafe.		We	disagree. [¶1 6 ] 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	d eposition	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	t he	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)

. [¶1 7 ] Further,	 a lthough	 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	a10 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)	 (quota tion marks	omitted)). [¶1 8 ] 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,	b ecause	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	r etaliation.”		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.	199 6 ) ; 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.11 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 F OR C LERK R EFERENCE O NLY