Delude v. Fletcher Allen Health Care, Inc.

Delude v. Fletcher Allen Health Care, Inc, (2001-090); 174 Vt. 74;
807 A.2d 390

[Filed 28-Jun-2002]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                No. 2001-090


  Sharon and Robert Dulude	                 Supreme Court

                                                 On Appeal from
       v.	                                 Chittenden Superior Court

  	
  Fletcher Allen Health Care, Inc.	         January Term, 2002
      
        
  Matthew I. Katz, J.
       
  Francis X. Murray, South Burlington, for Plaintiff-Appellant.
      
  Andre D. Bouffard and Steven P. Crowther of Downs Rachlin & Martin PLLC,
    Burlington, for Defendant-Appellee.


  PRESENT:  Amestoy, C.J., Dooley, Johnson and Skoglund, JJ.

        
       SKOGLUND, J.   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 argues that there are
  genuine issues of material fact as to: (1) whether FAHC's communications
  and personnel manual altered her employment from at-will to just cause; (2)
  whether FAHC had just cause for discharging her; (3) whether FAHC made
  promises to Dulude for just cause employment on which Dulude reasonably
  relied; (4) whether FAHC violated public policy in terminating Dulude's
  employment; (5) whether FAHC's actions were outrageous and caused her
  extreme emotional distress and whether such claim

 

  is time-barred; and (6) whether FAHC defamed Dulude and whether such claim
  is time-barred.  We affirm.

       The material facts are as follows.  Dulude was employed as a nurse
  with FAHC (FN1)  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 patient's 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 (FN2) 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: "[f]ailure
  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 (FN3) was written for
  Dulude's failure to comply with the letter of understanding of May 17,
  1993.  Dulude, who was required to seek supervision and approval when
  dispensing medications, requested a non-support person to sign both the
  controlled substance record and the patient flow sheet while Dulude
  administered the medication.  FAHC stated that continued employment was
  contingent on Dulude's compliance with the hospital policy with respect to
  controlled substances.

       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 designee on April 12, 1995.  She received a
  certified letter from the designee on April 20, 1995, informing her that
  her appeal had been denied.

       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 emotion 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., 164 Vt. 13,
  17-18, 665 A.2d 580, 582 (1995).  Summary judgment is appropriate only when
  the moving party establishes that there is no genuine issue of material
  fact and that the party is entitled to judgment as a matter of law. 
  Samplid Enters., Inc. v. First Vt. Bank, 165 Vt. 22, 25, 676 A.2d 774, 776
  (1996).  The nonmoving party may survive the motion if it responds with
  specific facts raising a triable issue and is able to demonstrate
  sufficient evidence to support a prima facie case.  State v. G.S. Blodgett
  Co., 163 Vt. 175, 180, 656 A.2d 984, 988 (1995).  If the nonmoving party
  fails to establish an essential element of its case on which it has the
  burden of proof at trial, the moving party is entitled to summary judgment
  as a matter of law.  Id.  In the present action, FAHC is entitled to
  summary judgment as a matter of law on all counts.


                                     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., 161 Vt. 457,
  462, 652 A.2d 466, 470-71 (1993).  Dulude 

 

  can overcome this presumption by presenting evidence that FAHC unilaterally
  modified her at-will status with an express or implied contract of
  employment that provided for termination only for cause.  Id.  Even if we
  assume, however, that a just cause term of employment was implied from the
  FAHC handbook or employment policy, we conclude, upon review of the
  existing record, that there is no genuine issue of material fact as to the
  reasons for FAHC's decision to terminate Dulude and that those reasons
  amounted to just cause as a matter of law for Dulude's discharge.   

       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, 135 Vt. 563, 568, 382 A.2d 204, 207 (1977) (internal quotations omitted).  The ultimate criterion of
  just cause is whether the employer acted reasonably in discharging the
  employee because of misconduct.  Id.  To be upheld, discharge for just
  cause must meet two criteria of reasonableness: one, that it is reasonable
  to discharge the employee because of certain conduct, and the other, that
  the employee had fair notice, express or fairly implied, that such conduct
  would be grounds for discharge.  Id., 382 A.2d at 207-08; Nadeau v. Imtec,
  Inc., 164 Vt. 471, 475, 670 A.2d 841, 844 (1995).   This case does not
  present an issue of whether the employee had adequate notice.  Thus, the
  Court is concerned only with the determination that there existed just
  cause for Dulude's termination.  
   
       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., 158 Vt. 566, 571, 613 A.2d 1277, 1280
  (1992).  We need not address this claim.  Even if an at-will contract was
  modified in the instant case, either by unilateral modification by the
  employer or by promissory estoppel, Dulude still failed to show there was a
  genuine issue of material fact relating to a breach of an implied just
  cause employment contract.

                                    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, 147 Vt. 488, 491, 520 A.2d 586, 588 (1986).  In Vermont, under an at-will employment contract, an
  employee may be discharged at any time with or without cause, "unless there
  is a clear and compelling public policy against the reason advanced for the
  discharge."  Jones v. Keogh, 137 Vt. 562, 564, 409 A.2d 581, 582 (1979)
  (emphasis in original).  Dulude claims that a discharge from employment on
  the basis of her alleged aberrant narcotic administration contravenes a
  clear and compelling public policy that providers who properly medicate
  their patients will not be discharged for complying with a duty to do just
  that.  We disagree.
   
       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."  147 Vt. at 492, 520 A.2d  at 588 (quoting Pittsburgh,
  Cincinnati, Chicago & St. Louis Ry. v. Kinney, 115 N.E. 505, 507 (Ohio
  1916)).  As a matter of law, Dulude's professional disagreements are
  insufficient to support a public policy claim.  As a licensed hospital in
  Vermont, FAHC has the ultimate responsibility to provide for, and protect,
  its patients, 

 

  and to set its own standards for safeguarding the life and health of the
  people of this state.  Its decision to terminate Dulude's employment due to
  failure to comply with hospital policy cannot support her public policy
  claim.  Even if Dulude was properly medicating her patients, we cannot find
  that her termination is so contrary to society's concern for providing
  equity and justice that there is a clear and compelling public policy
  against it.  See Aiken v. Employer Health Serv., Inc., No. 95-3196, 1996 WL
  134933, at *6 (10th Cir. March 23, 1996) (stating that there is no "public
  policy which prohibits an employer from terminating a health care employee
  over a disagreement or difference of professional judgment where the
  judgment of each is within the bounds of reasonable care") (internal
  quotation marks omitted).  We conclude that FAHC is entitled to judgment as
  a matter of law on Dulude's claim of wrongful discharge in violation of
  public policy.

                                     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., 164 Vt. 488, 497,
  671 A.2d 1249, 1256 (1995) (citing Denton v. Chittenden Bank, 163 Vt. 62,
  66, 655 A.2d 703, 706 (1994)).  A plaintiff's burden on a claim of IIED is
  "a heavy one."  Gallipo v. City of Rutland, 163 

 

  Vt. 83, 94, 656 A.2d 635, 643 (1994).  The conduct must be 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 and be regarded as
  atrocious and utterly intolerable.  Denton, 163 Vt. at 66, 655 A.2d  at 706. 
  It is for the court to determine as a threshold question whether a jury
  could reasonably find that the conduct at issue meets this test.  Jobin v.
  McQuillen, 158 Vt. 322, 327, 609 A.2d 990, 993 (1992) (citing Restatement
  (Second) of Torts § 46, comment h (1965)).

       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-à-vis plaintiff, it may provide grounds for the
  tort action."  Crump v. P & C Food Markets, Inc., 154 Vt. 284, 296, 576 A.2d 441, 448 (1990); see also Goosens v. AT&T Corp., No. EP-00-CA-002-DB,
  2000 WL 33348222, at *3 (W.D.Tex. April 3,  2000) (simply terminating an
  employee without more cannot amount to IIED).  Dulude's allegations, taken
  as true, fail to demonstrate that FAHC's actions during the actual
  grievance procedure and termination process were extreme and outrageous. 
  See Crump, 154 Vt. at 296-97, 576 A.2d  at 449 (holding that there was
  sufficient evidence to go to a jury on an IIED claim when an employee with
  eighteen years of service was summarily fired after being falsely accused
  of theft, kept in a three hour meeting with no opportunity to leave or eat
  lunch, and badgered to sign a confession).

       This Court has held that absent at least one incident of behavior that
  transcends the ignoble and vast realm of unpleasant and often stressful
  conduct in the workplace, incidents that are themselves insignificant
  should not be consolidated to arrive at the conclusion that the overall
  conduct was outrageous.  Denton, 163 Vt. at 67, 655 A.2d  at 706.  Even were
  we to view FAHC's conduct in its entirety, we conclude that a reasonable
  jury with proper instruction on the law could not find FAHC's behavior to
  be outrageous.  Accordingly, we affirm the grant of summary judgment on
  this claim.

 
   
                                     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, 394 N.Y.S.2d 1, 2 (N.Y. App. Div. 1977);   Digital Design Group,
  Inc. v. Info. Builders, Inc., 24 P.3d 834, 839 (Okla. 2001).  Some
  jurisdictions, however, hold that the accrual of a cause of action in
  defamation may be deferred until the plaintiff discovers or, through the
  exercise of reasonable care and diligence, should have discovered the
  nature of the defamatory communication.  See Marshall Field Stores, Inc. v.
  Gardiner, 859 S.W.2d 391, 394 (Tex. App. 1993).  These courts tend to apply
  this "discovery rule" in limited situations, such as  when the publication
  is likely to be concealed from the plaintiff or published in a secretive
  manner.  Digital Design Group, Inc., 24 P.3d  at 839.  In keeping with this
  Court's well-settled rule governing the accrual of actions in general, see
  Agency of Natural Resources v. Towns, 168 Vt. 449, 452, 724 A.2d 1022, 1024
  (1998) (a cause of action is generally said to accrue upon the discovery of
  facts constituting the basis of the cause of action or the existence of
  facts sufficient to put a person of ordinary intelligence and prudence on
  inquiry which, if pursued, would lead to the discovery), we too choose to
  apply the discovery rule to defamation claims.
   
       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 have
  discovered the second republication until the discovery deposition of the
  patient on January 22, 1999, because FAHC had erected an "intervening
  screen" which hid any wrongdoing.  Dulude relies on Jones v. Pinkerton's
  Inc., 700 S.W.2d 456, 459 (Mo. Ct. App. 1985).  In Jones, the employer
  expressly prevented the plaintiff from learning about an investigation and
  report, and the court held that such factors that are outside of the
  plaintiff's control may prevent the plaintiff from knowing he or she had
  suffered a legal harm.  Id. at 457, 460.  In the instant case, FAHC took no
  steps to hide any report or patient complaint and specifically referenced
  this particular patient in its termination letter on February 9, 1995.  In
  addition, Dulude interviewed the patient involved in January 1995 and had
  the opportunity at that time to discover facts that would lead to the
  discovery of the present claim.  Through the 

 

  exercise of reasonable care and diligence, Dulude should have discovered
  the nature of the defamation claim before April 17, 1995.  Her claim,
  therefore, is time-barred.

       Dulude also maintains that the defamatory statements were repeated to
  a 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., 161 F. Supp. 2d 596, 607-09 (D. Md. 2001) (holding that references to the "rumor mill,"
  created by the plaintiff's former peer's sheer speculation as to the
  grounds for her termination, without more, is insufficient to establish a
  claim of defamation against employer); Elicier v. Toys "R" Us, Inc., 130 F. Supp. 2d 307, 311 (D. Mass. 2001) (holding that the mere fact that some
  Toys "R" Us employees may have heard a rumor that the Plaintiff was
  terminated for dealing drugs does not prove reckless publication).

       Affirmed.


                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice



------------------------------------------------------------------------------
                                  Footnotes


FN1.  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.

FN2.  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(s).  In a progressive format this step
  would follow a verbal counseling or, for a more serious situation, could be
  the starting point.

FN3.  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.