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Mugavero v. Arms Acres

January 14, 2010


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.


In this action, Plaintiff Leslie Mugavero seeks relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000 et seq. ("Title VII") and New York law for alleged retaliation by her former employer, Arms Acres, Inc. ("Arms Acres") and her former supervisor, Dr. Frederick Hesse. (Cmplt. Counts I, II, III, IV) Mugavero alleges that after she supported a co-worker's sexual harassment complaint, Defendants retaliated against her by, inter alia, issuing her written disciplinary warnings, reporting her to New York State's Office of Professional Discipline for professional misconduct, and ultimately terminating her employment. (Id.) Following an eight-day trial, a jury rendered a verdict in Mugavero's favor against both defendants, and awarded Mugavero a total of $764,183 in compensatory damages and $350,000 in punitive damages.

The Defendants have moved for judgment as a matter of law, for a new trial, for discovery sanctions and to vacate or reduce the damage awards. (Docket Nos. 105, 108, 110, and 112). For the reasons stated below, Defendants' motions for judgment as a matter of law and for a new trial (Docket Nos. 105, 108) are DENIED; Defendants' motion to vacate or reduce the damage awards (Docket No. 110) is GRANTED IN PART and DENIED IN PART; and Defendants' motion for discovery sanctions (Docket No. 112) is GRANTED, insofar as attorneys' fees and costs are awarded.



Defendant Arms Acres is a drug and alcohol rehabilitation facility. (Tr. 97:20-23) During the relevant time period, Mugavero was employed at Arms Acres as a nurse practitioner and was supervised by Defendant Hesse, who was Arms Acres' medical director. (Tr. 68:23-25, 69:14-16, 299:20-300:10, 302:6-9) Mugavero asserts that Hesse began retaliating against her in a variety of ways after she informed him in late April 2002 that Marie McArdle, an Arms Acres nurse, was going to make a sexual harassment complaint against the facility's Director of Psychiatry, Dr. Omar Gutierrez -- a complaint that Mugavero formally supported with a written statement on May 1, 2002. (Tr. 108:21-109:21, 687:17-688:2, 950:7-10, 952:2-25) Mugavero claims that Hesse's retaliation escalated over time and included (1) reporting her to the New York State Office of Professional Discipline ("OPD") for alleged professional misconduct in July 2002; and (2) instigating the termination of her Arms Acres employment in October 2002. (Tr. 1903:12-20, 1907:18-24)

The Court granted Defendants summary judgment on certain of Mugavero's claims in March 2009. Mugavero v. Arms Acres, Inc. et al., No. 03-Civ.-5724(PGG), 2009 WL 890063 (S.D.N.Y. Mar. 31, 2009). The case then proceeded to trial on Mugavero's claims that the following actions constituted unlawful retaliation under federal and New York law: (1) the removal of her on-call duties on the evening of April 24, 2002; (2) a May 2002 written warning; (3) an August 2002 written warning; (4) Hesse's oral and written requests in July and August 2002 that the OPD investigate her for professional misconduct; (5) Arms Acres placing her on administrative leave on October 1, 2002; and (6) Arms Acres terminating her employment effective October 25, 2002.*fn1 (See Tr. 154:25-155:18, 191:21-192:2, 585:21-24, 1966:6-15; JX 60 (May 2002 written warning); JX 62 (August 2002 written warning); JX 109 (written complaint to OPD))

The jury found that Mugavero proved all elements of her retaliation claim against both defendants with respect to each of the alleged adverse actions. (Tr. 2016:16-2017:14, 2018:12-2019:3, 2019:20-2020:16) The jury also found, however, that Arms Acres -- but not Hesse -- had proven an affirmative defense with respect to the removal of Mugavero's on-call duties and the two written warnings -- i.e., Arms Acres had proven that it would have taken the adverse actions regardless of any retaliatory motive. (Tr. 2017:15-2018:11, 2019:4-2019:19) The jury found that Hesse was directly liable under state law for the first four adverse actions and liable as an aider and abettor under state law for Mugavero's placement on administrative leave and the termination of her employment. (Tr. 2018:12-2019:3, 2019:20-2020:16)

With respect to damages, the jury found that Mugavero had not proven that she was entitled to compensation for the removal of her on-call duties or for the two written warnings. (Tr. 2020:17-2021:3) It awarded her the following compensatory damages for emotional distress relating to the three later adverse actions: $75,000 for Hesse's request that the OPD investigate Mugavero; $75,000 for placing Mugavero on administrative leave; and $100,000 for the termination of her employment. (Tr. 2021:8-2021:23) The jury also awarded Mugavero $468,183 in lost wages and $46,000 in lost fringe benefits. (Tr. 2021:24-2022:2) Finally, the jury awarded $350,000 in punitive damages with respect to the OPD investigation claim. (Tr. 2022:7-2022:24)


Defendants seek judgment as a matter of law with respect to Mugavero's claims that they unlawfully retaliated against her by placing her on administrative leave and terminating her employment. (Def. JMOL Br. (Docket No. 107) at 4-13) In addition, Arms Acres argues that it is entitled to judgment as a matter of law on Mugavero's retaliation claim concerning Hesse's report to OPD. (Id. at 13-14) Defendants argue that, in the alternative, they are entitled to a new trial on those retaliation claims. (Def. New Trial Br. (Docket No. 109) at 3-6)

The standard for granting judgment as a matter of law under Rule 50 is "well established":

Judgment as a matter of law may not properly be granted under Rule 50 unless the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in her favor. In deciding such a motion, the court must give deference to all credibility determinations and reasonable inferences of the jury, and it may not itself weigh the credibility of witnesses or consider the weight of the evidence. Thus, judgment as a matter of law should not be granted unless

(1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or

(2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [it].

Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 288 (2d Cir. 1998); see also Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 133-34 (2d Cir. 2008) (same).

In order for the Court "to order a new trial under Rule 59(a), it must conclude that the jury has reached a seriously erroneous result or . . . [that] the verdict is a miscarriage of justice, i.e., it must view the jury's verdict as against the weight of the evidence." Manley v. AmBase Corp., 337 F.3d 237, 245 (2d Cir. 2003) (internal quotations omitted). The Rule 59(a) standard is "less stringent" than the standard for granting judgment as a matter of law under Rule 50 "in two significant respects: (1) a new trial under Rule 59(a) may be granted even if there is substantial evidence supporting the jury's verdict, and (2) a trial judge is free to weigh the evidence himself, and need not view it in the light most favorable to the verdict winner."*fn2 Id. at 244-45 (internal quotations omitted). In weighing the evidence, however, the Court "should not ordinarily ignore the jury's role in resolving factual disputes" and assessing witness credibility. MacMaster v. City of Rochester, No. 05-Civ.-06509, 2009 WL 63045, at *6 (W.D.N.Y. Jan. 6, 2009).

A. Mugavero's Retaliatory Termination Claim

To prove a retaliation claim at trial under federal or state law, a plaintiff must show:

by a preponderance of the evidence that: (1) [the plaintiff] participated in a protected activity, (2) the defendant knew of the protected activity; (3) [the plaintiff] experienced an adverse employment action; and (4) a causal connection exists between the protected activity and the adverse employment action. Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001). The McDonnell Douglas burden shifting analysis applies to retaliation claims brought pursuant to Title VII. SeeTerry v. Ashcroft, 336 F.3d 128, 140-41 (2d Cir. 2003). Accordingly, if a plaintiff properly alleges a prima facie case of retaliation, and the employer proffers a legitimate, non-retaliatory reason for the challenged employment decision, the plaintiff must present evidence that would be sufficient to permit a rational jury to conclude that the employer's explanation is merely a pretext for impermissible retaliation. SeeCifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001)(citations omitted).*fn3

Jackson v. New York City Transit, No. 08-2021-cv, 2009 WL 3287558, at *2 (2d Cir. Oct. 14, 2009)(emphasis in original).Defendants argue that they are entitled to judgment as a matter of law or a new trial on Plaintiff's retaliatory termination claim because: (1) the evidence was insufficient for a jury to find that Hesse had retaliatory animus toward Plaintiff; and (2) even if the jury could have found that Hesse had retaliatory animus, the evidence did not show that Hesse played a sufficiently significant role in the decision to terminate Plaintiff's employment such that his retaliatory animus tainted that decision. (Def. JMOL Br. at 4; Def. New Trial Br. at 3) The record, however, contains ample evidence to support the jury's findings on both issues. Indeed, Defendants' post-trial motions merely re-argue contested issues of fact and credibility determinations that the jury resolved against the Defendants.

1. Hesse's Retaliatory Intent

The evidence concerning Hesse's retaliatory animus was three-fold: first, there was evidence supporting a finding that Hesse began taking adverse action against Mugavero within a few days of her complaining about an Arms Acres doctor's sexual harassment of nurse Marie McArdle; second, there was evidence that the stated reasons for the adverse actions were pretextual or that the actions were taken in bad faith; and third, there was evidence that Hesse felt "threaten[ed]" (Tr. 500:23-501:9) by Mugavero's decision to support McArdle's harassment complaint and solicited unfounded complaints against both Mugavero and McArdle.

a. Timing

As the jury was instructed -- without objection from Defendants -- retaliatory intent may be inferred when the plaintiff's protected activity is "followed closely in time" by an adverse action. (Tr. 1969:12-14; see also Tr. 1692-1713 (no objection from Defendants at charge conference; Tr. 1988:2-4 (no objection from Defendants after jury was charged))

Here, Mugavero's testimony indicated that she first engaged in protected activity early in the week of April 21, 2002, when she told Hesse that (1) McArdle was going to report Dr. Omar Gutierrez for sexual harassment; and (2) Mugavero had witnessed Gutierrez kissing McArdle at Arms Acres.*fn4 (Tr. 687:17-688:2, 950:7-10, 952:12-25) Dr. Gutierrez reported to Hesse and was the only other doctor employed at Arms Acres. (J.X. 1)It was undisputed that three days later, on April 24, 2002, Hesse relieved Mugavero of her on-call duties, which the jury found was a material adverse action.*fn5 Such a close temporal connection between a plaintiff's protected activity and an adverse action is sufficient to give rise to an inference of retaliatory intent. See Feingold v. New York, 366 F.3d 138, 156-7 (2d Cir. 2004) (holding that the "requirement that . . . [the plaintiff] show a causal connection between his complaints and his termination is satisfied by the temporal proximity between the two," which was two weeks); Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996) (plaintiff established fourth element of retaliation claim where adverse action occurred twelve days after protected activity). Defendants argue that any inference of retaliatory intent created by the timing of Mugavero's first protected activity and the first adverse action cannot, as a matter of law, be extended to the adverse actions that occurred months later, including her placement on administrative leave and termination in October 2002. (Def. JMOL Br. at 9-10) Their argument, however, is not supported by the case law. The cases Defendants cite arise in the summary judgment context and indicate that, where there is a gap of three or more months between the protected activity and the adverse action, the timing -- standing alone -- is insufficient to give rise to an inference of retaliation. (See Def. Br. at 10) Such cases are inapplicable here because, as discussed below, there was evidence other than timing to support such an inference. (See infra pp. 7-19)

Moreover, as the Court held in its summary judgment opinion, the six-month gap between Plaintiff's first protected activity and her termination is not fatal to her retaliation claim where there is evidence that Plaintiff's termination was the culmination of a series of retaliatory adverse actions that began within days of her protected activity. Mugavero, 2009 WL 890063, at *12-13. Mugavero presented such evidence at trial.

During the trial, it was undisputed that Hesse and Mugavero's relationship changed dramatically on or about April 24, 2002. Prior to that time, Hesse and Mugavero had a longstanding, close working relationship and personal friendship.*fn6 There was substantial evidence -- corroborated by several of their co-workers -- that immediately following April 24, 2002, Hesse's "attitude changed" and he was "cold" toward Mugavero. (Tr. 1501:23-1502:8 (testimony of co-worker Steven Herzenberg); see also Tr. 1460:8-13 (testimony of co-work Sofia Umali that after April 24, Hesse and Mugavero's relationship became "very formal," "almost terse and cold")) After April 24, Hesse and Mugavero also stopped socializing. (Tr. 523:1-17, 1502:13-21)

According to Mugavero, after April 24, 2002, Hesse also stopped informally discussing patient issues with her and began routinely criticizing her medical discharge summaries, an important part of her duties. (Tr. 667:12-668:7, 669:18-670:8, 313: 8-10) In contrast, Hesse's July 2001 written evaluation of Mugavero states that she had "excellent discharge summaries." (Tr. 612:7-613:2)

The evidence also demonstrates that Hesse was involved in a series of adverse actions that followed the April 24, 2002 removal of Mugavero's on-call duties:

* Hesse began drafting Mugavero's first written warning on April 30 and issued it to her on May 3, 2002 (see Tr. 125:9-22; JX 59 (April 30, 2002 draft warning); Tr. 130:4-7; JX 60 (May 3, 2002 final warning));

* Hesse first reported Mugavero's alleged professional misconduct to OPD in mid-July 2002 and sent a letter to OPD on August 19, 2002, formally asking the agency to investigate her (Tr. 571:16-573:25, 574:1-9, 585:21-24; JX 68 (draft letter to OPD dated July 25, 2002); JX 109 (final letter to OPD dated August 19, 2002);

* Hesse began drafting Mugavero's second written warning on July 25 and issued it to her soon after August 6, 2002 (Tr. 575:1-13; JX 62 (draft warning dated July 25, 2002); and

* Hesse reported to his supervisor, Executive Director Patrice Wallace-Moore in October 2002(Tr. 64:4-9, 68:21-25) that Mugavero had made an error in responding to a patient's positive pregnancy test and assisted in the investigation of the alleged error, which led to Mugavero being placed on administrative leave and then terminated.*fn7 (See Tr. 268:2-25, 269:1-12, 276:7-277:4)

Given the evidence that Hesse took adverse action against Mugavero three days after her first protected activity; that their close friendship and good working relationship ended at the time of her first protected activity; and that Hesse was responsible for or was involved in all of the adverse actions that were taken against Mugavero during the next six months, culminating in her termination, a rational jury could have inferred from the timing alone that the adverse actions were motivated at least in part by retaliatory intent.*fn8

b. Pretext

In addition to proximity between protected activity and an adverse action, a jury may infer retaliatory intent from evidence that the employer's stated reasons for adverse actions were pretextual, or that the employer took the actions in bad faith or exaggerated the seriousness of the conduct that allegedly justified the adverse action. (See, e.g., Ebanks v. The Neiman Marcus Group, Inc., 414 F. Supp. 2d 320, 331 (S.D.N.Y. 2006) (judgment as a matter of law inappropriate because there were genuine factual disputes as to whether employer's reasons for the adverse employment actions "were in part pretextual"); Rooney v. Capital Dist. Transp. Auth., 109 F. Supp. 2d 86, 98-99 (N.D.N.Y. 2000) (judgment as a matter of law inappropriate because there was "a sufficient basis for a trier of fact to conclude . . . that the reasons defendant offered for plaintiff's dismissal were at least partially pretextual").

The jury was instructed in accordance with the above case law, without objection from the Defendants. (Tr. 1969:8-16, 1970:19-1971:1; see also Tr. 1692-1713, 1988:2-4 (no objection from Defendants at charge conference or after jury was instructed)) There was sufficient evidence at trial for the jury to find both pretext and bad faith.

i. The Early Adverse Actions

As to pretext, Defendants argued at trial, as they do now, that Hesse's first adverse actions against Mugavero -- beginning on April 24, 2002 with the removal of her on-call duties and continuing through the two written warnings -- were a response to Executive Director Wallace-Moore's increasing pressure on Hesse to discipline Mugavero. (Def. JMOL Br. at 5) The jury heard evidence that Wallace-Moore had been urging Hesse since early 2001 to supervise Mugavero more closely and to take action with respect to repeated complaints Wallace-Moore had received about Mugavero's interactions with nurses and patients. (See, e.g., Tr. 78:25-79:22, 87:3-9; JX 39 (Wallace-Moore's notes from supervision meetings with Hesse))

There was also undisputed evidence, however, that despite Wallace-Moore's pressure, Hesse took no disciplinary action against Mugavero until April 24, 2002. In early 2001, Wallace-Moore told Hesse that he needed to address complaints regarding Mugavero's interactions with patients and staff, but as of October 2001, he had not done so. (Tr. 87:3-9; JX 39) In December 2001, Wallace-Moore told Hesse that if he "did not address [Mugavero's] professionalism [Wallace-Moore] would." (Tr. 87:25-88:7; JX 39 at Bates 497) Wallace-Moore's supervisory notes indicate that in January 2002 Hesse "[s]till struggle[d]" with supervising Mugavero, and he did not provide a requested log of Mugavero's behavior. (Tr. 89:12-23; JX 40 at Bates 498) Finally, on April 11, 2002, Wallace-Moore noted that while Mugavero's "work has been relative[ly] good," "her attitude towards other staff and patients ha[s] been questionable" and still "require[s] corrective action[]." (Tr. 91:7-15; JX 40 at Bates 500) Because of the undisputed evidence that Hesse had essentially ignored Wallace-Moore's instructions for more than a year, the jury could reasonably have concluded that when he did begin taking disciplinary action against Mugavero on April 24, 2002, he was not motivated by Wallace-Moore's concerns.

ii. The OPD Report

There was also evidence from which the jury could have found that Hesse acted vindictively, maliciously, and in bad faith in asking the OPD to investigate Mugavero, in that he purposely misrepresented the facts to the OPD in order to portray Mugavero in a more negative light. Because the OPD is the state agency responsible for licensing nurses (Tr. 572: 11-23), Hesse's report that Mugavero had engaged in professional misconduct threatened her license and her ability to perform her profession. After a year-long investigation, the OPD closed its file concerning Hesse's complaint with no disciplinaryaction against Mugavero. (Tr. 595: 14-24)

With respect to Hesse's misrepresentations, it was undisputed that when Hesse first contacted the OPD by telephone and drafted his letter to the agency, he had not given Mugavero any written warning concerning the alleged errors discussed in the letter. (Tr. 200:1-3, 571:20-573:25, 575:1-13; PX 62 (draft warning); PX 68 (letter to OPD dated July 25, 2002)) In the letter he drafted, however, Hesse wrote that Arms Acres had "completed investigation and discipline with a written warning," and that Mugavero had "not accepted supervision, and ha[d] been negative in her responses." (PX 68 at Bates 306) None of this was true. Hesse's letter also stated that he was requesting an investigation because he believed Mugavero's errors were part of "an increasing pattern of numbers and severity." (JX 109 at Bates 2189; JX 62 at 438-39 (referring repeatedly to an "increasing pattern" of errors)) The evidence, however, does not support this allegation of an "increasing pattern" of errors -- Wallace-Moore's supervisory notes state that any pre-May 2002 errors by Mugavero had "never been noticed," allegedly because of Hesse's poor supervision. (JX 40 at Bates 505 ("NP has however, been found to have many mistakes on her work. Such has never been noticed due to Dr. H's admittedly sporadic if any supervision of NP's work."))

Similarly, the jury could have inferred bad faith and malice from Hesse's description of a June 26, 2002 incident in which Mugavero allegedly abandoned a suicidal patient. (JX 109 at Bates 2188-89 (Hesse's August 19, 2002 letter to OPD)) Hesse's letter states that Mugavero left for lunch without taking steps to make sure that the patient was attended while she was gone, and that Mugavero merely "mentioned in passing in the hallway to nursing staff that she [had] examined a suicidal patient. . . ." (JX 109 at Bates 2188) It was undisputed, however, that the "nursing staff" Mugavero spoke to was nursing supervisor Cindy Lipton, the charge nurse who, under Arms Acres' policy concerning suicidal patients, was responsible for assigning one-on-one care to such patients. (JX 15 (policy); Tr. 162:2-4, 163:23-164:4, 1346:7-11) Psychiatric nurse practitioner Sofia Umali was also disciplined for her role in the suicidal patient incident -- because she had not returned promptly from lunch to evaluate the patient (DX CC) -- but Umali received her written warning two days after the incident, on June 28, 2002, whereas Mugavero was not given a written warning concerning the incident until nearly six weeks later, on August 6, 2002. While the prompt discipline imposed on Umali supported an inference that her misconduct was at least as serious as Mugavero's (Tr. 583:3-21; DX CC), only Mugavero, and not Umali, was reported to the OPD.

iii. Plaintiff's Termination

There was also evidence from which the jury could have concluded that the decisions to place Mugavero on administrative leave and later to terminate her employment were not made in good faith. According to Human Resources Director Beverly Berkowitz, who conducted the investigation and recommended Mugavero's termination, Mugavero had erred when she: (1) signed off on a lab report showing that a patient was pregnant without stopping the patient's opiate withdrawal protocol; and (2) later extended the protocol. (Tr. 268:19-21, 287:14-15; see also JX 70 (October 25, 2002 memo by Berkowitz stated that Mugavero had signed the lab report and later re-ordered the opiate withdrawal protocol without notifying anyone that the patient was pregnant))

Mugavero was placed on administrative leave on October 1, 2002, allegedly so that Berkowitz could investigate whether Mugavero in fact made errors that resulted in the pregnant patient taking opiate withdrawal medication after the medication should have been stopped. (Tr. 268:2-19, 269:10-12) The jury could reasonably have found, however, that Berkowitz's investigation was conducted in an unfair manner that undermined Mugavero's ability to respond and explain what had happened. On October 1, Berkowitz did not tell Mugavero why she was being placed on leave, except to say that Berkowitz needed to do an investigation. (Tr. 269:16-25) During her first investigative interview of Mugavero, Berkowitz asked about the general policy or protocol for treating a pregnant patient, but did not tell her about the particular patient whose treatment Berkowitz was investigating or provide the medical chart for that patient. (Tr. 273:11-275:16)

During a second interview, Berkowitz gave Mugavero excerpts of the patient's chart that Hesse had selected. (Tr. 276:7-277:4) Mugavero testified that it was not until after this litigation ensued -- when she obtained the patient's full chart -- that she realized that she had probably given the patient's lab report to nurse practitionerJoanne Callahan, who had -- as the full chart revealed -- initially examined the patient and ordered that she be placed on the opiate withdrawal protocol. (Tr. 725:18-726:12; see also Tr. 1170:5-10)Mugavero testified that it was her practice to review all lab reports when they were delivered in the morning, and to give any non-urgent reports concerning patients initially seen by Joanne Callahan to Callahan for follow-up. (Tr. 656:1-21) While Mugavero raised with Berkowitz the possibility that she had given Callahan the report, Berkowitz disregarded Mugavero's remark because there was no support for this claim in the medical records Berkowitz had consulted. (Tr. 290:16-23)

There was also evidence suggesting that Mugavero was less culpable than Defendants portrayed. While Berkowitz testified that Mugavero was terminated in part because she had re-ordered the pregnant patient's opiate withdrawal protocol, it was undisputed that Mugavero had extended the protocol by giving a voice order in response to a request from a nurse, without looking at the patient's chart. (Tr. 1153:19-1154:12) Physician Assistant Steven Herzenberg testified that it was standard practice at Arms Acres to give a voice order to extend a protocol at a nurse's request without looking at the chart, on the assumption that the protocol would not have been ordered in the first place if it was inappropriate. (Tr. 1500:13-23, 1528:14-20) Indeed, the medical records showed that Joanne Callahan had initially placed the pregnant patient on the opiate withdrawal protocol with a voice order given over the telephone at the request of a nurse. (Tr. 1769:23-1771:1) Hesse also testified that if a patient was admitted in the evening, the patient could receive medication on the basis of a voice order given to a nurse prior to being examined the following day.*fn9 (Tr. 453:1-13, 457:14-458:5)

c. Other Circumstantial Evidence of Retaliatory Intent

Finally, Plaintiff's claim that Hesse had acted out of retaliatory intent was supported by evidence that Hesse: (1) viewed Mugavero's report of Gutierrez's misconduct as a threat; and (2) solicited unfounded complaints against both Mugavero and McArdle after Mugavero told him that McArdle intended to report Dr. Gutierrez for sexual harassment.

With respect to Hesse's reaction to Mugavero's report concerning Dr. Gutierrez, Hesse testified that Mugavero "seemed to be threatening" him with the possibility of McArdle reporting Dr. Guttierez for sexual harassment. (Tr. 500: 23-501:9) With regard to Hesse's attempt to generate complaints against Mugavero and McArdle, Nurse Michelle DeMarco testified that almost immediately after Mugavero told him about McArdle's harassment complaint,*fn10 Hesse asked DeMarco to "write up a statement stating that [she] observed . . . Mugavero take a picture at the nursing station," which Hesse told DeMarco "was a breach of . . . patient confidentiality." (Tr. 1341:7-11) DeMarco refused, and reminded Hesse of two other occasions when employees had taken photos at the nursing station, including recently for "Take Your Daughter to Work Day." (Tr. 1341:12-1342:4) She also mentioned to Hesse that she had kept "for many years" a photo of herself, Hesse and several other nurses taken at the nursing station in the area of the board with patients' names written on it. (Tr. 1342:5-14) As she spoke, Hesse got "redder and redder" and "bec[ame] more irate" (Tr. 1343:17-19), and told her that if she refused to prepare the statement, she "was being insubordinate."*fn11 (Tr. 1342:16-18) DeMarco told him that she did not want to be involved in a "vendetta" against Mugavero. (Tr. 1343:2, 20-22) Hesse responded, in substance, that: "[If] this makes you so anxious maybe you shouldn't be working here." (Tr. 1343:22-25) At that point, DeMarco's supervisor, who was also present, told DeMarco that she could leave, and Hesse apologized for upsetting her. (Tr. 1341:3-5, 1344:8, 21-22)

The second incident involved Hesse soliciting a complaint against McArdle. Hesse testified that on September 6, 2002, he saw McArdle take a patient's blood pressure in an unusual way -- with her leg between his legs (Tr. 478:24-479:10, 480:6-8) -- and alerted the nursing supervisor, Cindy Lipton. (Tr. 479:12-19) Although he was not McArdle's supervisor, Hesse returned to the patient's room four or five hours later, to ask the patient if he "had any concerns" about how his blood pressure had been taken. (Tr. 482:6-16, 484:7-13) According to Hesse, the patient responded that "now that he mentioned it it was very odd." (Tr. 482:13-16) Hesse testified that he asked the patient if he "want[ed] to write something about it," and the patient "said yes." (Tr. 483:1-3) The patient then wrote a short statement, which Hesse took from him. (Tr. 485: 13-20) The patient subsequently told Wallace-Moore, however, ...

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