United States District Court, D. Connecticut
RULING AND ORDER ON MOTION TO DISMISS
A. BOLDEN UNITED STATES DISTRICT JUDGE
the dismissal of her original Complaint, Lori Alterio
(“Plaintiff”) has filed an Amended Complaint
against her former employer, Almost Family, Inc.
(“Defendant” or “Almost Family”), Am.
Compl., ECF No. 38 (Mar. 25, 2019), and alleged that her
termination violated her rights under the First Amendment as
well as the implied covenant of good faith and fair dealing.
Id. ¶¶ 125-249.
Family has moved to dismiss this lawsuit again. Mot. to
Dismiss, ECF No. 39 (Apr. 8, 2019).
reasons set forth below, the Defendant's motion to
dismiss is GRANTED with prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
more than twenty years, Ms. Alterio allegedly worked for
Almost Family, “a provider of home health nursing,
rehabilitation and personal care services.” Am. Compl.
¶¶ 11, 16. During her employment, Ms. Alterio held
“positions of increasing responsibility[.]”
Id. ¶ 12. In October of 2016, Ms. Alterio
allegedly agreed to serve as the Director of Professional
Services for Almost Family's Trumbull, Connecticut
Willcare Agency. Id. ¶ 14. Almost Family
allegedly assured Ms. Alterio “that it would provide
her with the necessary training and support to perform her
duties and responsibilities.” Id. ¶ 15.
In this position, Ms. Alterio allegedly was responsible for
Almost Family's compliance with federal and state laws
and regulations. Id. ¶ 25.
year following [her] employment as the Director of
Professional Services, ” Ms. Alterio and Kelly
O'Brien, allegedly Medical Record Specialist for Almost
Family, allegedly initiated an audit of personnel records.
Id. ¶ 27. Ms. Alterio allegedly discovered that
staff at Almost Family's Watermark Assisted Living
Facility and Sunrise of Stamford facility were not complying
with federal and state requirements “regarding proper
documentation being placed in patients' and
employees' files” or regarding transitioning those
files to electronic format. Id. ¶ 28. Ms.
Alterio allegedly attempted to obtain the documents necessary
to come into compliance with federal and state law from
Lindsey Deleo, Almost Family's Rehab Manager for
Connecticut. Id. ¶ 31. Ms. Alterio and Ms.
O'Brien allegedly had to return the documents to Ms.
Deleo to be re-submitted a second time because they were not
completed correctly. Id. ¶ 32.
Alterio allegedly discussed her concerns about Ms.
Deleo's alleged non-compliance to Brent Piepenbring,
Almost Family's Executive Director for Connecticut, and
Sippy Olarsch, Almost Family's Northeast Regional Rehab
Director. Id. ¶ 33.
2017, a Home Health Aide Supervisor for Almost Family
allegedly resigned, leaving vacant a position that Ms.
Alterio allegedly believed had to be filled in order for
Almost Family to comply with state law. Id.
¶¶ 35-37. Ms. Alterio allegedly informed Almost
Family's previous Executive Director, Nicole Lavin, and
later Northeast Regional Clinical President, Sheryl
Rossingnol, that the company needed to appoint a new Home
Health Aide Supervisor to comply with Connecticut state
requirements. Id. ¶¶ 38-39. Ms. Rossingnol
allegedly told Ms. Alterio that a registered nurse from
another branch had been designated as the new Home Health
Supervisor for Connecticut. Id. ¶ 40. Ms.
Alterio allegedly considered these actions insufficient to
bring Almost Family into compliance with state law because
Almost Family's “Trumbull, CT Willcare Agency
[allegedly] held its own provider number which separated it
from the [D]efendant's other offices.” Id.
¶ 41. Ms. Rossignol allegedly told Ms. Alterio to
address the issue with Mr. Piepenbring. Id. ¶
Alterio allegedly sent an e-mail to Mr. Piepenbring about her
concerns, but he allegedly never responded. Id.
¶ 43. She allegedly expressed her concerns again with
Mr. Piepenbring in July and September of 2017, but allegedly
no one ever addressed this issue while she worked with Almost
Family. Id. ¶¶ 44-45.
October of 2017, Ms. Alterio also allegedly raised concerns
about Raymond Baldwin, an Almost Family account executive, to
Mr. Piepenbring. Id. ¶ 49. Mr. Baldwin
allegedly “would overstep the legal boundaries of his
position and participate in the clinical decision-making
process, in violation of the regulations of the State of
Connecticut.” Id. ¶ 46. Mr. Baldwin also
allegedly “would directly consult with medical
professionals concerning their patients' plan of care,
” “instruct . . . clinical staff regarding the
performance of their professional duties, ” and
otherwise engage with patients, ignoring federal and state
regulations, in order to generate business for Almost Family.
Id. ¶ 47-61.
Alterio allegedly shared her “various complaints”
about Mr. Baldwin's alleged misconduct with Mr.
Piepenbring, id. ¶ 49, including an incident
where Mr. Baldwin had allegedly deceived a patient and the
patient's family about what type of therapy would be
covered under Medicare “solely to obtain their
agreement to have [Almost Family] provide the patient with
home care services, ” id. ¶¶ 59-61.
November 3, 2017, Almost Family allegedly ended Ms.
Alterio's employment. Id. ¶ 11. In her
view, Ms. Alterio lost her job
on account [of her] legitimate and honest efforts to assure
compliance by the [D]efendant and its personnel with
federal and state law as well as federal and state
administrative regulations mandating that the [D]efendant
maintain proper medical records, appoint proper supervisory
personnel, keep a separation between clinical and
non-clinical staff in communicating with a patient's
physician when developing a patient's healthcare plan,
and adhere to the provisions of the Connecticut Patient Bill
Id. ¶ 142.
January 30, 2018, Ms. Alterio filed a complaint in
Connecticut Superior Court, Judicial District of Fairfield,
against Almost Family, alleging a termination in violation of
the public policy of the state of Connecticut and the
covenant of good faith and fair dealing. Compl., ECF No. 1-1
(Jan. 30, 2018).
March 2, 2018, Almost Family removed the case on diversity
grounds under 28 U.S.C. §§ 1441 and 1446, alleging
that Almost Family is incorporated in Delaware with a
principal place of business in Kentucky, and that the amount
in controversy exceeds $75, 000. Notice of Removal from State
Court ¶¶ 6-14, ECF No. 1 (Mar. 2, 2018).
March 9, 2018, Almost Family moved to dismiss the case. Mot.
to Dismiss, ECF No. 10 (Mar. 9, 2018).
March 6, 2019, the Court granted Almost Family's motion
to dismiss without prejudice to Ms. Alterio filing an Amended
Complaint. Order Granting Mot. to Dismiss and Leave to File
Am. Compl., ECF No. 37 (Mar. 6, 2019) (“Order on First
Mot. to Dismiss”).
March 25, 2019, Ms. Alterio filed an Amended Complaint,
claiming that Almost Family unlawfully discharged her in
violation of her rights under the First Amendment and in
breach of an implied covenant of good faith and fair dealing.
Am. Compl. ¶¶ 125-248.
April 8, 2019, Almost Family moved to dismiss Ms.
Alterio's amended complaint. Mot. to Dismiss.
April 22, 2019, Ms. Alterio filed a memorandum in opposition
to the motion to dismiss. Pl.'s Mem. Opp., ECF No. 40
(Apr. 22, 2019).
6, 2019, Almost Family filed a reply to Ms. Alterio's
opposition. Def.'s Reply, ECF No. 41 (May 6, 2019).
November 21, 2019, the Court held a hearing on the motion to
dismiss. Minute Entry, ECF No. 49 (Nov. 21, 2019).
the hearing, the Court granted the Defendant until November
27, 2019, “to respond to the case raised by
Plaintiff's counsel during oral argument: Dighello v.