Wingard v. Eastern Maine Medical Center

STATE OF MAINE SUPERIOR COURT
PENOBSCOT, SS. Docket No. CV-17-145

JENNIFER WINGARD )
Plaintiff, )
)
)
v. ) ORDER
)
)
EASTERN MAINE MEDICAL CENTER )
Defendant. )

This employment discrimination case was tried to a jury in August, 2019. The jury determined
that Ms. Wingard had engaged in activities protected by Maine's Whistleblowers' Protection
Act, and that those protected activities were a substantial motivating factor in Eastern Maine
Medical Center's (EMMC) decision to terminate her employment as a per diem/pool care
manager. The jury awarded the Plaintiff$ 20,000.00 in compensatory damages. On October 30,
2019, the Court held a hearing regarding reinstatement, back pay and front pay. On November
20, 2019, both parties submitted arguments on the issues now before the Court.

Reinstatement, back pay, and front pay are all equitable remedies. While the Court has used
some degree of precision in certain mathematical calculations, it has also, given the equitable
nature of the award, rounded numbers and made estimations in some instances to reach an
equitable result.

Back Pay

Before her employment was terminated, Plaintiff was in a pool/per diem position at EMMC as a
care manager. Plaintiffs employment was terminated on December 19, 2016.

Ms. Wingard was earning$ 40.79 per hour, plus $1.00/$1.50 per hour differential for
weekend/night work. Thus, her wages would have been approximately as follows:

12/19/16 to 4/30/17 - $40.79 per hour plus the differential= $41.79 (the court
finds that Ms. Wingard primarily worked weekends)

Over the six month period of time prior to December 19, 2019, Ms. Wingard worked 12.38 hours
per week on average. Over the 50 weeks prior to December 19, 2019, she worked approximately
6.4 hours per week on average 1.

1 Earnings during the first six months of2016 ~ $6,712.00 and this was before at least one of her 2016 raises.

Earnings for the last six months of2016 ~ $13,797.00.
1
The Court is satisfied that the last six months of Ms. Wingard' s employment was a time during
which EMMC was particularly short of care managers. Ms. Wingard's hours were dependent on
EMMC being understaffed or otherwise needing to cover care manager shifts. By the spring of
2017, EMMC revised its staffing to significantly decrease the pool/per diem opportunities for
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care managers. The Court is satisfied that the shortage was alleviated by April of 2017 •

Ms. Wingard, who has a great deal of experience in nursing, exerted very little effort to find
employment to replace the per diem work she had been doing at EMMC. She did not apply to
any advertised per diem/pool positions in the nursing field between December 19, 2016 and the
present. The Court is satisfied that there is a nursing shortage and Ms. Wingard would have been
hired for a per diem/pool nursing position at EMMC or elsewhere if she pursued such
oppo1tunities. EMMC has had open per diem positions from December, 2016 through the
present. Plaintiff has been "in good standing" with EMMC this entire period. Yet, Plaintiff has
failed to apply to any open position at EMMC or anywhere in the Northern Light system or
anywhere else. During the first three months of 2017, Plaintiff: a) made an unsolicited inquiry at
St. Joseph's Hospital about a position as a care manager and was told there were no weekend
positions available, and b) sent her resume to 6 insurance/health care entities inquiring about per
diem utilization review positions (unsolicited). These were the only efforts Plaintiff made during
this time to find replacement work and none of these efforts were in response to any advertised
or otherwise known open positions. The Court is satisfied that had Ms. Wingard applied to the
various open positions at EMMC or other area health providers, she would have been hired for
one or more of them. From March, 2017 to the present (33 months), Plaintiff has made only three
more documented attempts and perhaps an additional attempt to find replacement work. Again,
these attempts were not applying to any known open positions. In April, 2019, Ms. Wingard
changed her full-time employment and began working for Kindred Hospice.

The Comt awards Ms. Wingard$ 9,975.00 in back pay:
12.5 hours per week for 19 weeks 3 at$ 42.004 per hour= $9,975.00

The Court limits the amount of back pay because of Plaintiffs failure to exercise reasonable
diligence to find alternative work. Prior to April 30, 2017, Plaintiff made 7 unsolicited inquires
into pool/per diem work; however, she did not apply for any advertised or otherwise known open
position5• Between March, 2017 and December, 2017, she exerted no efforts at all to find
pool/per diem work. Between 12/19/16 and the present, Plaintiff has not applied for any open
advertised/known position. She, in effect, removed herself from finding replacement work.

2 Had the Court awarded back pay after 4/30/17, it would have substantially reduced the number of hours going
forward from 4/1/17. Additionally, since October, 2018, there has not been any pool/per diem utilization review
work available.
3 12/19/16to4/30/17
4 The Court has rounded up to approximate those hours when Ms. Wingard would have worked at night and

received the $1.50 differential instead of the $1.00 differential.
5 "[B]ack pay awarded as relief for unlawful employment discrimination is to be reduced by actual earnings on

another job during the pertinent period, or by whatever amount [the victim] could with reasonable diligence have
earned during that time." Walsh v. Town ofMillinocket, 2011 ME 99, ,r 34, quoting Maine Human Rights Comm 'n v.
Dept. ofCorrections, 474 A.2d 860, 869 (Me. 1984). Had the Defendant established the amount of money plaintiff
could have earned at other health care jobs, the Court probably would not have awarded Plaintiff more than a month
or so of back pay, but since Defendant did not do so, the Comt has found it equitable to award back pay to the
Plaintiff though one month beyond when she last made a very minimal effort to find replacement income.
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Reinstatement and Front Pay

The Court does not order reinstatement or front pay.

On April 1, 2019, Plaintiff accepted a position at Kindred Hospice as the Director of Operations.
She now is in charge of the Kindred hospice program. At trial, Plaintiff testified that her
acceptance of this position created a conflict of interest with the duties she had been performing
at EMMC when her employment was terminated. The only part of her prior duties she could
perform at EMMC while being the Director of Operations at Kindred Hospice, would be
utilization review duties. However, there are no longer any pool/per diem positions to perform
utilization review. The elimination of the pool/per diem positions was the result ofEMMC
putting into place a new model of integrated care management and the creation of the "resource
center."

Additionally, the Court does not award front pay in that it finds that Ms. Wingard woefully failed
to diligently pursue alternative employment opportunities 6 • The Court is satisfied that there is a
nursing shortage and Ms. Wingard could quite easily be reemployed in a pool/per diem position
at EMMC or elsewhere if she pursued such opportunities.

The Clerk shall enter this Order awarding Plaintiff$ 9,975.00 in back pay upon the record by
reference.

Judgment is entered for the Plaintiff in the total amount of$ 29,975.00 ($20,000.00 jury award
of compensatory damages plus $9,975.00 back pay award). The Clerk shall further enter upon
this Judgment upon the docket by reference.

December 19, 2019
NnnM. Murray, Justice
Maine Superior Court

6While the Court awarded Ms. Wingard back pay despite her lack of effort to mitigate her damages, it does not do
so for front pay. The Court does not find it equitable to award front pay to someone who has not made an earnest
attempt to find per diem work between 12/16/2016 and 12/2019.
3