“All Roads Lead to Rome” When It Comes to Summary Judgment on Maine Whistleblower Claims, Says First Circuit

The First Circuit Court of Appeals recently affirmed summary judgment in a retaliation suit under the Maine Whistleblowers’ Protection Act (WPA), finding no merit to the employee’s claim that her termination was motivated by complaints she had made about a coworker’s workplace behavior. Before getting to the merits in Theriault v. Genesis Healthcare LLC, though, the First Circuit addressed Maine’s new framework for analyzing WPA claims and clarified that, although the framework may have changed the way evidence of retaliation is presented at the summary judgment stage, it did not change the level of proof needed to defeat summary judgment. 

Central to the dispute in Theriault was the import of the Law Court’s 2015 decision in Brady v. Cumberland County. In Brady, the Law Court announced that it would no longer use the three-part McDonnell Douglas burden-shifting framework to analyze WPA claims on summary judgment. Instead, the Law Court explained that WPA claims should be analyzed in a unitary way to determine whether the evidence, as a whole, would allow a jury to conclude that an adverse action was motivated by retaliatory intent. 

The question in Theriault was whether the Law Court’s new framework, which collapsed the way evidence of retaliation is presented at the summary judgment stage, also collapsed the scope of evidence to be considered on summary judgment. Theriault argued that it did. She argued that, after Brady, a plaintiff need only establish a “prima facie” case of retaliation to survive summary judgment and that a court should therefore only consider a plaintiff’s evidence when faced with an employer’s summary judgment motion. The First Circuit rejected that argument and found that Brady’s elimination of the burden-shifting framework in no way limited the scope of evidence to be considered on summary judgment in WPA retaliation cases. It explained that, although the new “Maine-specific retaliation paradigm” requires plaintiffs to establish a prima facie case of retaliation, the prima facie showing that must be made is not the minimal prima facie case that plaintiffs had to show under McDonnell Douglas, but rather a body of evidence that is “sufficient to withstand a motion for summary judgment.” A court in a WPA retaliation case may therefore recognize any evidence that the employer had a lawful reason for taking an adverse action, as well as any evidence that the proffered reason is pretext. In short, said the Court, “all roads lead to Rome” under Maine’s new retaliation paradigm and a plaintiff must “adduce precisely the same quantum of proof that she would have had to adduce to defeat summary judgment under the McDonnell Douglas framework.”

Turning to the merits of Theriault’s retaliation claim, the First Circuit found that the trial court appropriately followed Maine’s analytic framework for WPA retaliation cases and, based on an appraisal of the entire record that included evidence from Genesis Healthcare about its reasons for termination, agreed with the trial court that Theriault failed to produce sufficient evidence from which a jury could conclude that her termination was motivated by retaliatory intent.

First Circuit Retaliation Update: Timing of Adverse Action Isn’t Enough to Impute Knowledge of Protected Activity to Employer

Retaliation cases often focus on the timing between an employee’s protected activity and an adverse employment action. The closer they are in time, the more likely it is that a jury could infer that the protected activity caused the adverse action (but not always). This causal link makes sense if there’s evidence that the employer actually knew about the protected activity when it took the adverse action. But what if that evidence doesn’t exist? Can the timing of an adverse action be used to infer that the employer knew about the protected activity and took action because of it? 

The First Circuit Court of Appeals recently tackled this question and answered it with a “no.” In Delaney v. Town of Abington, a police officer alleged that the Town of Abington retaliated against him because of a report he had made to the Massachusetts Attorney General’s office about the town’s traffic ticketing system. The district court granted summary judgment for the town because there was no evidence showing that the town knew about the officer’s report at the time of the alleged adverse actions. 

On appeal to the First Circuit, the officer pointed to evidence that he received a particular work assignment the same day he filed his report. He argued that the assignment was an adverse employment action and that a jury could have inferred that the town “knew that he had filed the report from the fact of this assignment.” 

The First Circuit disagreed. It noted that temporal proximity may be sufficient to establish causation where the “record independently provide[s] a basis from which a jury could reasonably conclude that the employer knew of the employee’s protected conduct at the time that the adverse employment action allegedly occurred.” But it rejected the officer’s argument that the temporal proximity of an adverse action can be used to infer that the employer knew about the protected activity and took action because of it.