Maine’s Law Court Blows the Whistle on McDonnell Douglas

Maine’s highest court has closed out the year with two notable decisions involving the state’s Whistleblowers’ Protection Act (WPA).  The decisions revise the method for analyzing WPA cases on summary judgment and, as a result, are likely to have impacts that are more procedural than substantive. 

When a party files a motion for summary judgment, they are essentially arguing that no factual dispute exists with respect to the key aspects of the case and that a court can therefore decide the case as a matter of law, without having to go to a trial.  In employment discrimination cases, courts have for years relied on a framework developed by the U.S. Supreme Court to determine whether or not a factual dispute exists that would prevent summary judgment from being awarded. The framework, known as McDonnell Douglas, generally sets out a procedure for presenting evidence of discrimination.  The procedure involves shifting burdens, where the employee must first establish a prima facie case of discrimination, which the employer must then rebut with an explanation as to why it had legitimate reasons for any actions it took.  Assuming the employer provides that explanation, the burden then shifts back to the employee to point to sufficient evidence in the record that would allow a jury to conclude that the employer’s conduct was nonetheless motivated, at least in some measure, by discrimination. 

In Brady v. Cumberland County (November 10, 2015) and Cormier v. Genesis Healthcare, LLC (December 15, 2015), the Law Court announced that it would no longer use the McDonnell Douglas framework for adjudicating WPA cases on summary judgment.  In brief, the Law Court noted that because of the way a WPA claim is defined under Maine law, an employee must produce evidence of causation—i.e. evidence that the employer had an unlawful motive for taking an adverse action—as part of his or her prima facie case.  This is in contrast to claims under Title VII, where employees are not required to produce evidence of causation until the third step of the McDonnell Douglas framework—after the employer has produced a legitimate non-discriminatory explanation for its actions. Noting this difference between the WPA and Title VII, the Law Court concluded that, for WPA cases, the second and third steps of the McDonnell Douglas framework are duplicative.  Consequently, rather than employing the McDonnell Douglas burden-shifting framework, the Law Court explained that when analyzing WPA cases on summary judgment, it will consider evidence in a “unitary way and simply determine whether the record as a whole would allow a jury to reasonably conclude that the adverse employment action was motivated at least in part by retaliatory intent.” 

In a sense, then, the Brady and Cormier decisions do not signal a significant change.  In WPA cases, employees and employers will still need to present the same evidence to prevail on summary judgment; the difference is that the Law Court will not go through the exercise (or require the parties to through the exercise) of sorting that evidence through a burden-shifting framework.  Instead, in a nod to judicial efficiency, the Court will simply consider all the evidence at once to determine whether there is sufficient evidence to suggest that an adverse employment action was motivated at least in part by protected activity.

First Circuit Finds No Whistleblowing Where Employee's Report was Part of the Job

Here’s a zen koan for today:  “What is the sound of a whistleblower whose job it is to blow the whistle?”  According to the First Circuit U.S. Court of Appeals, which recently meditated on this question, the sound is kind of like one hand clapping.  In Winslow v. Aroostook County, the Court explained that an employee’s report is not whistleblowing if making the report is part of his or her job duties.

The plaintiff in this case, Winslow, was the executive director of a federally-funded state workforce investment board (WIB).  Aroostook County was the grant sub-recipient for the WIB and acted as the fiscal agent for the grant.  As fiscal agent, the County hired Winslow and paid her salary, and Winslow reported to the County.  However, there was no explicit fiscal agent agreement between the WIB and the County.

In November 2009, federal monitors from the Department of Labor undertook a compliance review of its grants in Maine, including the WIB, and determined that it was improper for Winslow to report to the County rather than to the WIB in the absence of an express agreement.  Winslow participated in the compliance review and was directed by her supervisor at the County to prepare a report on the federal monitors’ findings.  Winslow prepared the report and then, at the direction of her supervisor, sent it to members of the WIB.  As a result of the compliance review, the WIB entered into an agreement with a new fiscal agent.  The County then terminated Winslow’s employment, as the County was no longer involved in the administration of the grant.  Although Winslow applied for the position of executive director with the new fiscal agent, she did not get the job.

Winslow then sued the County and claimed that she was terminated in retaliation for blowing the whistle on the absence of a formal fiscal agent agreement.  The First Circuit disagreed and found that Winslow made the report regarding the federal monitors’ findings as part of her job duties and at the request of her supervisor.  Noting that the usual rule in Maine is that “a plaintiff’s reports are not whistleblowing if it is part of his or her job responsibilities to make such reports, particularly when instructed to do so by a superior,” the Court concluded that Winslow had not blown the proverbial whistle.