Suit: Mary Wade Fired Whistleblower

A lawsuit by a Mary Wade Home nurse accuses the Fair Haven nursing home of firing her in retaliation for speaking up about unsafe workplace conditions during the early months of the Covid-19 pandemic.

That lawsuit was filed in state court on Aug. 10 by Janell Smalls, a former licensed practical nurse at the Clinton Avenue elderly care facility.

In the legal complaint, Smalls and her Hartford-based attorney, Matthew Paradisi, claim that Mary Wade Home made up charges of insubordination and ultimately fired her at the end of July.

That disciplinary action allegedly took place after Smalls brought concerns to management in mid-May about Covid-dangerous behavior by her registered nurse supervisor. Smalls alleges that the supervisor showed up to work visibly sick after testing positive for Covid-19, did not wear a mask while working in the Covid-negative wing of the facility, and assigned Smalls, who was Covid-negative, to work in the Covid-positive section of the facility.

When Smalls complained to top Mary Wade administrators about her supervisor’s alleged behavior, the lawsuit states, Smalls was charged with insubordination. Two months later, according to the suit, she was fired for an unrelated matter — for allegedly not giving an accurate report at the conclusion of a shift, and for failing to document a resident’s fall during a shift.

The lawsuit argues the consequences of Mary Wade’s alleged inaction in response to her complaint were potentially fatal.

“Due to Defendant’s failures to implement, maintain, and abide by its own quarantine measures and those advised by governmental agencies or other authoritative entities, such as those Plaintiff sought to enforce on or about May 15, 2020, a host of Defendant’s previously COVID-19 negative residents contracted the disease,” Paradisi wrote in the legal complaint. ​“Between May 14, 2020 and July 30, 2020, the percentage of its residents with confirmed COVID-19 diagnoses approached 100%, and an additional thirteen residents died.”

Smalls is seeking monetary damages, reinstatement or front pay, ​“treble damages” per state statute, attorney’s fees and costs, and punitive damages, according to the suit.

Mary Wade officials declined to comment on the suit for this article, while emphasizing their commitment to public health and safety (see more below).

The ​“Squeaky Wheel”

Paradisi, Smalls’s lawyer, emphasized that point during a phone interview with the Independent Thursday afternoon.

“Nursing homes have an obligation to take care of their patients and they also have an obligation to listen to the staff who are in the trenches and on the ground working with these people and caring for these people to great risk of their own health,” he said.

He said that Smalls had no problem working in a Covid-positive wing, as she understood that to be her obligation as a healthcare worker employed at a nursing home during a pandemic.

What his client took issue with, he said, is her supervisor allegedly showing up to work sick after testing positive for Covid, not wearing a mask, and treating healthy, elderly residents who had been deliberately segregated to minimize their exposure to the virus.

“I think that was an eminently reasonable and admirable thing to do to stand up for the residents,” he said. He blamed Mary Wade for ​“firing the squeaky wheel.”

“I think what they did was wrong morally but also it’s in violation of really strong statutes,” he said. ​“To bury your head in the proverbial sand is not the way to deal with a pandemic.”

CEO: ​“Health And Safety” Always Come First

Mary Wade CEO David Hunter declined to respond to the specifics of the lawsuit, citing the nursing home’s policy not to comment on pending litigation.

Instead, Hunter emphasized the Fair Haven nursing home’s commitment to the well-being of its staff and residents, the challenges presented by the Covid-19 pandemic to all New Haveners, and the nursing home’s successful compliance with state and federal safety guidelines.

“Mary Wade values the contributions of all its employees and always places the health and safety of its residents above all other considerations,” he wrote. ​“During the COVID era Mary Wade was consistently out front in the adoption and implementation of operational strategies to implement those aims, sometimes in advance of guidance from the state and federal government. These were unprecedented and extremely challenging times for all of us in New Haven.”

Praising the nursing home’s healthcare team, he said that Mary Wade has ​“passed all inspections successfully that were conducted by the Department of Public Health and CDC personnel in the last six months.”

(Update: In an email statement provided to the Independent Friday afternoon, Hunter stated again that Mary Wade would not comment on pending litigation. He also reiterated how the nursing home over the past six months of the pandemic has been ​“particularly attuned to the concerns of our staff given the uncertainty of the virus and its effects, and we have consistently worked to accommodate their needs, all the while maintaining our primary focus of keeping residents healthy and safe.” Click here to download the full statement.)

In a previous story from this summer about Mary Wade Home’s struggles during the early part of the pandemic, Mary Wade Home Executive Director Stan DeCosta also stressed the success of the facility’s comprehensive Covid-19 testing and cohorting plans at protecting residents and staff.

State Department of Public Health data show that home has experienced a cumulative total of 29 Covid-related deaths among elderly residents at its 94-bed facility — the highest fatality number of any nursing home in the city. Almost all of the resident fatalities occurred by the end of May. The Fair Haven nursing home hasn’t experienced any new infections or Covid-related deaths in months.

Mary Wade Home administrators and New Haven’s top official told the Independent in this article from July that they believe Mary Wade suffered such a strong outbreak of the novel coronavirus in the early weeks of the pandemic this spring because of an asymptomatic healthcare worker, a bathroom shared by seniors, and wavering national public health guidance on how best to protect vulnerable seniors living in a shared facility.

Across the state, 8,777 nursing home residents have tested positive for Covid-19 and 2,849 have died as of Sept. 10. That’s out of a total of 55,166 confirmed positive cases and 4,487 Covid-19 associated deaths statewide, as of Wednesday.

An interim report published in August by a policy research consulting company hired by the state found that a lack of testing and slow adoption of mask mandates early on in the pandemic contributed to Connecticut’s nursing home and elderly care residents suffering so greatly.

Complaint: ​“Retaliatory And Discriminatory Intent”

The lawsuit states that Smalls first started working at Mary Wade Home in 2014 as a licensed practical nurse.

On March 10, the suit points out, Gov. Ned Lamont declared public health and civil preparedness emergencies around the global Covid-19 pandemic. On March 12, he issued Executive Order No. 7, which restricted access to nursing home facilities due to the unique threat posed by the virus to people over 60 and those with chronic health conditions.

On April 3, the federal Centers for Disease Control and Prevention recommended that nursing homes separate, or cohort, Covid-positive residents from Covid-negative residents. And on April 11, Lamont issued Executive Order No. 7Y, which recognized the ​“critical need” of housing and caring for Covid-positive residents at long-term care facilities while reducing the risk of infection to residents who have not been exposed or diagnosed with Covid-19.

“This was a disease that was known to be deadly to this particular population” by April and May, Paradisi told the Independent.

The suit states that Smalls was hired into a new 32-hour per week position on April 9, constituting an increase in hours in her work at Mary Wade.

“Subsequent to her hire into the aforesaid position, Plaintiff was often required to care for COVID-19 positive patients within Defendant’s Mary Wade Home facility,” the suit reads. ​“Understanding her role as a nurse and her obligations to the patients and residents, Plaintiff did so willingly, and without question.”

The suit continues by saying that, subsequent to April 9, and in line with the CDC’s guidance, Mary Wade Home set established a ​“K‑1” floor deemed the ​“COVID-19 Negative” unit, and a ​“K‑2” floor deemed the ​“COVID-19 Positive” floor. ​“The protocol followed an initial outbreak of COVID-19 at Mary Wade, which had resulted in a number of its geriatric patients contracting COVID-19, leading to the unfortunate deaths of eight residents by April 24, 2020,” the suit reads.

The lawsuit states that Mary Wade administrators assigned healthcare personnel who were confirmed negative for the virus to the ​“K‑1” negative floor, and personnel who had previously tested positive for Covid-19 to the ​“K‑2” positive floor.

Smalls, the complaint reads, consistently tested negative for the virus through May 15.

As of May 14, the lawsuit continues, Smalls’s RN supervisor had tested positive for Covid-19.

At around that same time, Smalls saw that supervisor ​“vomiting into a garbage receptacle during the course of her shift, and was further showing signs of extreme lethargy and other symptoms known to be associated with symptomatic COVID-19.”

Smalls said she also saw that same supervisor walking around the ​“K‑1” negative floor without a mask.

“In response, Plaintiff reported the foregoing observations to Defendant’s Infection Control Nurse,” leeting her know that the supervisor should not be in or around the ​“K‑1” floor given her visible symptoms and the vulnerability of the residents.

According to the lawsuit, to the best of Smalls’s understanding, Mary Wade Home admins took no action in response to her complaint.

On or around the evening of May 15, the lawsuit continues, Smalls was scheduled to work an overnight shift from 11 p.m. to 7 a.m. Upon arrival, she reported to the ​“K‑1” negative floor, where she had recently been assigned, but was told instead by her supervisor that the ​“K‑2” nurse had called out and that Smalls would need to work on the Covid-positive floor. The supervisor who was sick, meanwhile, would work on the Covid-negative floor, according to the lawsuit.

“Given the risks of exposing dozens of additional geriatric and vulnerable residents to Covid-19,” the suit states, Smalls refused to switch units with her supervisor. The suit states that Smalls’s supervisor called Mary Wade’s director of clinical services, whom Smalls reiterated her concerns to. That conversation led to no changes, Smalls’s suit reads, and Smalls remained assigned to the positive floor and her supervisor remained assigned to the negative floor.

On May 19, the suit reads, Small attended a meeting with the director of clinical services and the director of human resources. They presented Smalls ​“with a disciplinary letter, wherein Defendant accused her of insubordination for refusing an assignment of a supervisor. Defendant, at the conclusion of the meeting, suspended Plaintiff for a period of three days.”

The lawsuit states that Mary Wade Home ​“persisted in a pattern of retaliatory conduct” towards Smalls, culminating with the termination of her employment on July 31. The suit states that the nursing home administration issued Smalls ​“false, fabricated, and/or unjustified disciplines on June 18, 2020, June 20, 2020, and June 25, 2020.”

She was placed on a ​“Performance Improvement Plan” on July 23, according to the suit, and then fired on July 31 for allegedly failing to give an accurate report at the conclusion of her shift and allegedly failing to properly document a resident’s fall during her shift.

“Defendant’s proffered reasons for the termination of Plaintiff’s employment were false, and were pretext to mask its unlawful retaliatory and discriminatory intent.”

The lawsuit subsequently charges Mary Wade Home with one count of retaliation in violation of Smalls’s state statute-protected right to ​“voice grievances and recommend changes in policy” and ​“the right to advocate for better resident care and increase accountability.” It also charges the nursing home with one count of violating Smalls’s state statute-protected right to speak ​“on matters of public concern in refusing to engage in unsafe, unethical conduct ad directed by Defendant”.

As a result of Mary Wade’s alleged actions, the suit states, Small has sustained lost wages and benefits of employment, suffered significant emotional distress, and will incur attorney’s fees and costs.