“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.

FMLA: Discipline Unrelated to Leave Is Not Retaliatory

The New Hampshire Federal Court issued a recent decision affirming that an employer may take disciplinary action against an employee who has taken FMLA leave, provided the information is accurate and unrelated to the leave.  The Court in Ameen v. Amphenol Printed Circuits, Inc. (Opinion No. 2013 D.N.H. 177) granted summary judgment for the employer against an employee claiming he was terminated in retaliation for taking FMLA leave, and noted “an employee may not immunize himself from being discharged for reasons unrelated to the FMLA simply by taking leave under that statute.”

The employee had taken approved leaves following the birth of his child, but upon his return it was reported that he had been violating the company lunch and break policy by the manner in which he had punched in and out for breaks.  An investigation determined he was receiving a fifteen minute paid break per day in violation of company policy and it had been occurring for two years.  The supervisor who decided to terminate the employee had no knowledge of the FMLA leave.  The Court declined the plaintiff’s invitation to apply the cat’s paw theory of imputing motive up the chain to that decision maker because the individuals who made the initial report and reported the results of the investigation produced accurate information.  The Court concluded that if it allowed accurate reporting of employee misconduct unrelated to the FMLA conduct to count as evidence of retaliatory animus, an employer’s ability to discharge an employee for reasons unrelated to the protected FMLA conduct would be “significantly constrained.”

Had the facts been different – for example, if the information reported to the decision maker was inaccurate – the result would likely have been different.  While this opinion affirms an employer may discharge an employee for legitimate reasons unrelated to protective FMLA activity, the decision maker must take care to ensure the accuracy of the information that serves as the basis for the adverse employment action and that it is truly unrelated to the leave.

Retaliation in Discrimination Matters: A View from the MCAD

Having spent seven years as Commissioner of the Massachusetts Commission Against Discrimination, I have come to the realization that the charge of retaliation can lead to big and perceived problems for an employer.  I am only going to discuss two of ways that retaliation can impact an employer.  The first relates to an employee who brings a sincere claim of discrimination, harassment or failure to accommodate to the employer's attention.  An employer’s first instinct may be defensive.  The employer is angry at being accused of discriminating against an employee, and takes an adverse employment action against the employee.  The employee then files a claim of discrimination and retaliation against the employer.  The Commission may find a lack of probable cause on the charge of discrimination, but a finding of probable cause on the retaliation.  In order for an employee to prevail on a charge of retaliation, there does not need to be a finding that the employee was discriminated against.  An employer who is confronted with a claim of discrimination, harassment or failure to provide a reasonable accommodation by an employee should listen to the employee’s complaint, conduct a prompt impartial investigation, and take appropriate action.  Following these three steps should reduce the chance of a claim of discrimination and retaliation being filed, and, if filed, increases the chances  the charge of retaliation will also be dismissed.

A second source of retaliation claims involves an employee who believes that he/she is about to be fired.  To protect from being fired, the employee goes to the employer, alleging discrimination, harassment or failure to provide a reasonable accommodate by the employer.  The employee knows that by alleging a claim of discrimination, that the employer could be faced with a claim of retaliation as well as claim of discrimination, if the employer terminates the employee after being informed that the employee believes that he/she exercising a protected activity.  This course of action by the employee does not mean that you still cannot move forward with the termination.  An employer’s best defense to avoid such a charge is to document, document, document.  If employer documents the issues it has with an employee and informs that employee of the problems informally throughout the employment and during the review processes, an employer may end up with a better employee and/or reduce the risk of having a charge of discrimination and relation filed against it.  It will also, if a charge of discrimination and retaliation is filed, increase the probability that the charges will be dismissed.