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Alterio v. Almost Family, Inc.

United States District Court, D. Connecticut

December 20, 2019

LORI ALTERIO, Plaintiff,
v.
ALMOST FAMILY, INC., Defendant.

          RULING AND ORDER ON MOTION TO DISMISS

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

         After 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.

         Almost Family has moved to dismiss this lawsuit again. Mot. to Dismiss, ECF No. 39 (Apr. 8, 2019).

         For the reasons set forth below, the Defendant's motion to dismiss is GRANTED with prejudice.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Allegations

         For 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.

         “The 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.

         Ms. 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.

         In June 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. ¶ 42.

         Ms. 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.

         In 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.

         Ms. 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.

         On 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 of Rights.

Id. ¶ 142.

         B. Procedural History

         On 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).

         On 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).

         On March 9, 2018, Almost Family moved to dismiss the case. Mot. to Dismiss, ECF No. 10 (Mar. 9, 2018).

         On 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”).

         On 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.

         On April 8, 2019, Almost Family moved to dismiss Ms. Alterio's amended complaint. Mot. to Dismiss.

         On 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).

         On May 6, 2019, Almost Family filed a reply to Ms. Alterio's opposition. Def.'s Reply, ECF No. 41 (May 6, 2019).

         On November 21, 2019, the Court held a hearing on the motion to dismiss. Minute Entry, ECF No. 49 (Nov. 21, 2019).

         Following 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. ...


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