Employee's Wrongful Employment Termination And Intentional Infliction Of Mental Distress Claims Fail

Sharon Dulude was employed as a nurse with Fletcher Allen Health Care (FAHC) 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. 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 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 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 deemd 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 filed a wrongful employment termination action and related tort claims including breach of contract, promissory estoppel, discharge in violation of public policy, intentional infliction of emotional distress and defamation. The trial court granted FAHC's motion for summary judgment on all claims. On appeal, the Supreme Court of Vermont affirmed, holding that that there were no genuine issues of material fact as to: (1) whether FAHC's communications and personnel manual altered Dulude's 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 (6) whether FAHC defamed Dulude.

Dulude v. Fletcher Allen Health Care

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