February 16, 2013

Gardiner nurse takes prison-job firing before court

By Betty Adams badams@centralmaine.com
Staff Writer

A Gardiner nurse will get to tell a jury why she feels she was a victim of retaliation when she was escorted from her job at the Maine State Prison on Oct. 17, 2008, and ultimately fired.

Katherine Kelley sued Correctional Medical Services, Inc., of St. Louis, Mo., about her firing, claiming it was a violation of her rights under the Americans with Disabilities and the Maine Human Rights acts.

A three-judge panel of the U.S. First Circuit Court of the Appeals ruled recently that the case should go to trial. However, that ruling is still subject to appeal.

"I am very ecstatic because someone believed me," Kelley said.

The circuit court panel overturned a U.S. district court judge's decision dismissing the lawsuit in favor of Correctional Medical Services at the summary judgment stage.

"We have to have a trial of the facts," said Kelley's attorney, Guy Loranger. Kelley's lawsuit was filed in federal court Nov. 1, 2010. It was originally filed in Knox County Superior Court.

Loranger said he expects the case to go on the trial calendar this spring, depending on whether Correctional Medical Services appeals the three-judge decision to the full U.S. First Circuit Court of Appeals.

"She was ecstatic, and rightfully so," Loranger said. "She went through a lot. It was very difficult to hear the court say she had no case."

Attorney Matthew J. LaMourie, who argued on behalf of Correctional Medical Services, Inc., said he could not comment on the decision because the case is still "active litigation."

Kelley, a licensed practical nurse, started working for Correctional Medical Services at the prison in spring 2007, and court documents show she was earning almost $49,000 annually.

She shattered her pelvis in July 2007, and when she returned to work using first crutches and then a cane to get around, she sought an accommodation for her medical disability.

The decision, authored by Circuit Judge Kermit Lipez, outlined a series of encounters between Kelley and a supervisor, Teresa Kesteloot, who required Kelley to bring a doctor's note about her need for a cane and work-hour limitations.

On Oct. 17, 2008, Kelley, who was on vacation, agreed to cover a shift in an emergency. She was placed in the main clinic, where she would be required to respond to emergencies and carry equipment, including a stretcher, something she said she would find difficult.

After several attempts to shuffle jobs among several nurses, Kelley told the supervisor she "did not feel 'comfortable with the physical responsibilities,'" and mentioned leaving work. She also refused to do a narcotics count, saying two other nurses already had done it.

Two security officers escorted her out of the prison at midnight at Kesteloot's direction.

"Under these circumstances, a reasonable fact-finder could conclude that Kelley's refusal to obey an instruction of Kesteloot served as a convenient pretext for eliminating an employee who had engaged in ADA-protected conduct one too many times," Lipez wrote.

After being fired as a prison nurse, Kelley said she worked only part time.

Now 52, she has been disabled and unable to work since July 2009. Part of the reason, Kelley said, is that she had to delay a second surgery when she lost her medical insurance along with her job.

"I've always been a real workaholic. I literally worked until my leg gave out," Kelley said.

Before working for Correctional Medical Services, she had worked at the Veterans Administration Medical and Regional Office Center at Togus and for agencies in the Portland area.

Betty Adams -- 621-5631
badams@centralmaine.com

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