MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2015 ME 143 Docket: And-14-444 Argued: May 14, 2015 Decided: November 10, 2015
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
GERARD BRADY
v.
CUMBERLAND COUNTY
HJELM, J.
[¶1] Gerard Brady appeals from a summary judgment entered by the
Superior Court (Androscoggin County, Mills, J.) in favor of Cumberland County
on Brady’s claim for employment retaliation pursuant to the Maine
Whistleblowers’ Protection Act (WPA), 26 M.R.S. §§ 831-840 (2014). Brady
contends that the court erred when it concluded that he failed to present a prima
facie case of retaliation because he had not produced evidence that disciplinary
action taken against him was motivated by complaints he made about the
investigation of an incident at the Cumberland County jail. Because the record on
summary judgment contains evidence on which a jury could reasonably find that
the adverse employment action taken against him by the County was substantially
motivated at least in part by retaliatory intent, and because we now conclude that
the compartmentalized three-step process set out in McDonnell Douglas Corp. v. 2
Green, 411 U.S. 792, 802-05 (1973), is not an appropriate tool to adjudicate
summary judgment motions in WPA retaliation cases, we vacate the judgment.
I. BACKGROUND
[¶2] The summary judgment record contains the following evidence seen in
the light most favorable to Brady as the non-moving party. See Angell v. Hallee,
2014 ME 72, ¶ 16, 92 A.3d 1154. Brady has been a detective with the Cumberland
County Sheriff’s Department’s Criminal Investigation Division (CID) since 1994.
In late 2002 or early 2003, Brady became licensed to conduct polygraph
examinations in Maine. In addition to conducting polygraph examinations in the
course of his duties at the Sheriff’s Department, Brady started a private polygraph
examination company called Forensic Polygraph Services (FPS). He signed a
written agreement with the Sheriff’s Department that allowed him to conduct the
private polygraph business outside of work hours as long as he complied with
certain conditions, including not using his County vehicle or other County-owned
equipment in connection with FPS.
[¶3] In May 2010, a court officer showed Brady and another detective “a
video of an inmate being choked out” by a Cumberland County corrections officer
at the Cumberland County Jail. Brady was “very surprised” that a corrections
officer would use a chokehold, and he commented to the others watching the video
with him that “it looks like somebody is going to jail.” Approximately two weeks 3
later, Brady brought up the video again in a CID meeting, questioning why nothing
had been done about the corrections officer’s actions and why the matter had not
been referred to CID for investigation. His supervisors, Lieutenant Donald Foss
and Sergeant James Estabrook, were present at the meeting, and Foss told Brady
that the Department’s Internal Affairs Division was conducting an investigation.
[¶4] Following the meeting, Brady continued to voice concerns about the
incident to his coworkers, and within a week of the meeting, he raised the issue
again with Estabrook. Brady believed that the Sheriff’s Department was covering
up the corrections officer’s actions because of the upcoming election for Sheriff.
For the most part, Brady did not recall to whom specifically he voiced that theory,
but he did remember telling Detective Brian Ackerman that he thought the
Department was not investigating the assault because of the election. Brady
described Ackerman’s response as “something to the effect of you should keep
your mouth shut or you’re going to get in trouble.” Brady also spoke with
Lieutenant Joel Barnes, who is in charge of internal affairs investigations for the
Department, to discuss the incident and why a criminal investigation had not been
opened. Brady did not recall ever speaking to Sheriff Mark Dion, then-Chief
Deputy Sheriff Kevin Joyce,1 or Chief Deputy Sheriff Naldo Gagnon about his
1 Joyce was elected Sheriff in November 2010 and became Sheriff in January 2011. Prior to becoming Sheriff, Joyce was Chief Deputy to Sheriff Mark Dion. When Joyce was elected Sheriff, 4
concerns. Brady does not recall making any complaints about the incident after
approximately July 2010.
[¶5] Prior to 2011, Brady had annually reported his polygraph examination
statistics to the Department, including the number of examinations he conducted
both for the County and as part of his private business. In late 2010, however, after
receiving Brady’s statistics for that year, Foss told Brady that, going forward, he
only wanted him to report the number of examinations that he conducted for the
County. In accordance with that directive, at the end of 2011 Brady submitted
only his County polygraph statistics, resulting in a significantly lower number of
examinations than he had reported in previous years. Foss noticed the decrease in
the number of Brady’s reported examinations and told Estabrook about the low
numbers. Foss and Estabrook then met with Gagnon and Joyce, leading to further
scrutiny of Brady’s use of County time and resources to conduct polygraph
examinations for FPS. On February 8, 2012, Joyce placed Brady on administrative
leave and directed that Foss commence a criminal investigation into whether Brady
had violated the law by using County resources to conduct his private business.
[¶6] At the conclusion of the investigation, Foss determined that on at least
one occasion Brady had used a County vehicle to deliver polygraph results to an
Gagnon became his Chief Deputy. The events that are relevant to this case occurred when Dion was Sheriff and Joyce was his Chief Deputy. 5
FPS client and that Brady administered a private polygraph examination on a day
when he had called in sick. He also found that Brady had used his “unmanaged
comp time” to conduct polygraph examinations for FPS while being paid by the
County.2 Foss concluded, however, that these departmental policy violations did
not amount to probable cause to charge Brady with a crime. Despite that
recommendation, Joyce directed that the case be referred to the District Attorney’s
office for review and possible criminal prosecution. After reviewing the case and
seeking input from the Attorney General’s office, the District Attorney declined to
prosecute Brady. Joyce also submitted Brady’s case to the Maine Criminal Justice
Academy for review of Brady’s law enforcement officer certification, but the
Academy declined to take any action.
[¶7] Joyce then directed Barnes, who conducts all of the Cumberland
County Sheriff’s Department’s internal affairs investigations, to conduct an
investigation into whether Brady violated any Department policies. Barnes
determined that Brady had violated his written agreement with the Sheriff’s
Department and also had funneled revenue away from the County by failing to
notify other law enforcement agencies that the Sheriff’s Department could perform
2 Unmanaged comp time was an informal practice at the Sheriff’s Department whereby salaried employees who worked extra hours on nights or weekends then would take time off during the workday to compensate for the extra time worked. Brady testified that he received permission to take unmanaged comp time from his supervisors, but that he did not inform them he was using that time to conduct polygraph examinations. 6
polygraph examinations at a lower cost than FPS, but Barnes also concluded that
Brady’s conduct was not criminal. Following a disciplinary hearing where Brady
was represented by a union agent and an attorney, Joyce demoted Brady to the
position of patrol officer.
[¶8] Brady challenged the demotion through the union grievance process,
and in March 2013, an arbitration hearing was held. On May 3, 2013, the
arbitrator issued an award, finding that the County had just cause to discipline
Brady but ordering that he be reinstated to his detective position with back pay.
On May 23, 2013, the County terminated Brady’s employment because he had
been on medical leave for more than a year. The same arbitrator reversed that
decision, finding that “at least a portion of the year he was absent . . . may not have
occurred but for the behavior of the County,” and extending the time within which
Brady was required to submit medical documentation supporting his fitness to
return to duty. Brady returned to work in late August 2013.
[¶9] Brady filed a complaint with the Maine Human Rights Commission in
September 2012. After receiving a right-to-sue letter in April 2014, see 5 M.R.S.
§ 4612(6) (2014), he filed a complaint against the County in the Superior Court
(Androscoggin County) for (1) violation of the Maine Whistleblowers’ Protection
Act, 26 M.R.S. §§ 831-840; (2) violation of the Maine Civil Rights Act, 5 M.R.S.
§§ 4681-4685 (2014); (3) defamation; and (4) interference with advantageous 7
relationship. He also filed a complaint against Joyce and Gagnon in Superior
Court (Cumberland County) with the same claims except for the WPA claim. The
two actions were consolidated in Androscoggin County. The defendants moved
for summary judgment, and, on October 6, 2014, the court granted the motion,
entering judgment for all defendants on all counts. Brady timely appealed,
challenging the order granting summary judgment on his WPA claim against the
County.3
II. DISCUSSION
[¶10] “We review the grant of a motion for summary judgment de novo,”
viewing the evidence “in the light most favorable to the party against whom the
summary judgment has been granted in order to determine if there is a genuine
issue of material fact.” Budge v. Town of Millinocket, 2012 ME 122, ¶ 12,
55 A.3d 484 (quotation marks omitted). “A genuine issue of material fact exists
when the factfinder must choose between competing versions of the truth.” Dyer
v. Dept. of Transp., 2008 ME 106, ¶ 14, 951 A.2d 821 (quotation marks omitted).
[¶11] In our previous WPA retaliation cases, we applied the three-step
burden-shifting analysis set out in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-05 (1973). See, e.g., Trott v. H.D. Goodall Hosp., 2013 ME 33,
3 Brady has not appealed the summary judgment issued in favor of Joyce and Gagnon, or the summary judgment issued in favor of the County on the remaining counts of his complaint against the County. 8
¶ 15, 66 A.3d 7 (applying the McDonnell Douglas burden-shifting analysis to a
summary judgment motion); DiCentes v. Michaud, 1998 ME 227, ¶¶ 14-17,
719 A.2d 509 (applying the McDonnell Douglas burden-shifting analysis to the
trial context). Pursuant to that analysis, the employee must first produce evidence
sufficient to generate a prima facie case of retaliation. Trott, 2013 ME 33, ¶ 15,
66 A.3d 7. Then, the burden of production shifts to the employer to present
evidence of a legitimate, non-retaliatory reason for the adverse employment action.
Id. Once the employer has done so, “the burden shifts back to the employee to
produce evidence that the employer’s proffered reason is a pretext to conceal an
unlawful reason for the adverse employment action.” Id.
[¶12] Brady contends that the court erred when it concluded that he had not
established a prima facie case of retaliation because he had not produced evidence
of a causal link between his complaints and the disciplinary action taken against
him. The County contends that the court did not err, but that, even if Brady has
made out a prima facie case, the County is still entitled to summary judgment
because Brady has not produced evidence that the reason given by the County for
the disciplinary action was pretextual. In response, Brady argues that in the
context of summary judgment motion practice for retaliation cases, we should
dispense with the particularized McDonnell Douglas burden-shifting framework
and instead use the more general standard that allows a case to proceed if the 9
plaintiff has succeeded in generating a dispute of material fact as to each element
of the cause of action. See M.R. Civ. P. 56(c).
[¶13] We therefore must address two questions on this appeal: (1) whether
Brady has succeeded in establishing a prima facie case of retaliation; and (2) if he
has, whether, when analyzing a WPA retaliation claim in the summary judgment
context, there is a justification for continuing to use the burden-shifting framework
prescribed by McDonnell Douglas. We conclude that the record on summary
judgment is sufficient to establish Brady’s prima facie case of retaliation. We
further conclude that, by itself, an employee’s production of evidence to support a
prima facie case of WPA retaliation is sufficient to defeat an employer’s motion
for summary judgment, without the need to shift the burden of production pursuant
to the second and third steps of the McDonnell Douglas analysis. We address
these issues separately.
A. Prima facie case
[¶14] As a general matter, to make out a case of unlawful retaliation under
Maine’s WPA and thereby satisfy the first step in the McDonnell Douglas
approach, a plaintiff must show that “(1) [he] engaged in activity protected by the
WPA; (2) [he] experienced an adverse employment action; and (3) a causal
connection existed between the protected activity and the adverse employment
action.” Walsh, 2011 ME 99, ¶ 24, 28 A.3d 610; see 26 M.R.S. § 833 (2014). 10
These elements therefore collectively constitute a prima facie case for purposes of
the summary judgment analysis. Fuhrmann v. Staples Office Superstore East, Inc.,
2012 ME 135, ¶ 15, 58 A.3d 1083. Cf. Corey v. Norman, Hanson & DeTroy,
1999 ME 196, ¶ 7, 742 A.2d 933 (“To survive a defendant’s motion for summary
judgment, a plaintiff must produce evidence that, if produced at trial would be
sufficient to resist a motion for a judgment as a matter of law.” (quotation marks
omitted)). In the context of the summary judgment analysis, the employee’s
burden of proving a prima facie case of retaliation is “relatively light,” Murray v.
Kindred Nursing Ctrs. W. LLC, No. 2:13-cv-00341-JDL, 2014 U.S. Dist. LEXIS
124776, at *21 (D. Me. Sept. 8, 2014) (quotation marks omitted), and requires only
“a small showing that is not onerous and is easily made,” Boyd v. England,
393 F. Supp. 2d 58, 62 (D. Me. 2005) (quotation marks omitted).
[¶15] Here, the trial court determined that Brady produced evidence that he
had engaged in a protected activity, namely, complaining about the County’s
failure to respond appropriately to the alleged assault in the jail. The court also
determined that Brady had presented evidence that he suffered an adverse
employment action, namely being demoted. The court concluded, however, that
Brady failed to create a triable issue of fact that there was a causal connection
between his protected activity and the adverse employment action taken by the
County. Brady contends that this conclusion was erroneous and that the record on 11
summary judgment contains sufficient circumstantial evidence of causation to
allow him to meet his burden of production at the prima facie stage.
[¶16] A causal connection exists when the alleged retaliation “was a
substantial, even though perhaps not the only, factor motivating” the adverse
employment action. See Fuhrmann, 2012 ME 135, ¶ 21, 58 A.3d 1083 (quotation
marks omitted). When considering whether a plaintiff has produced evidence
sufficient to establish a prima facie case of causation, the court may consider any
and all evidence that tends to show a causal link, even if that evidence would also
be relevant to show pretext at the third stage of the McDonnell Douglas
framework. Id. ¶¶ 16, 19 (considering the same evidence at both the prima facie
and pretext stages of the McDonnell Douglas analysis); Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 255 n.10 (1981); Farrell v. Planters Lifesavers
Co., 206 F.3d 271, 286 (3d Cir. 2000) (“[N]othing about the McDonnell Douglas
formula requires us to ration the evidence between one stage or the other.”). In
other words, pretext evidence can also serve as causation evidence that bears on a
plaintiff’s prima facie case. We therefore consider all of the evidence produced by
Brady and determine whether, cumulatively, it would allow a reasonable jury to
infer that he was disciplined in part due to his protected activity.
[¶17] We conclude that Brady has produced evidence demonstrating the
existence of a dispute of material fact on the causation element of his prima facie 12
case. Brady has met his burden of production here because of the combined effect
of evidence of (1) differential treatment of Brady in the workplace, from which a
reasonable jury could find that he was singled out and disciplined for violations
that were commonplace in the Department but did not lead to discipline against
other employees; (2) a disproportionate response to Brady’s alleged violation, as
measured by the results of the initial investigation into Brady’s alleged
wrongdoing; and (3) communication channels involving the subject of Brady’s
protected complaints that would naturally allow those complaints to reach the
decision-makers. We consider these categories of evidence in turn.
[¶18] First, Brady has produced evidence that he was treated differently
than other detectives at the Sheriff’s Department. The record supports the trial
court’s statement that the County “acknowledge[d] that many Sheriff’s Department
employees have used unmanaged comp time for personal reasons such as running
errands, attending ballgames, and drinking alcohol,” yet they have never been
criminally investigated for their use of that time. Additionally, Brady produced
evidence that other detectives and higher ranking officers in the Sheriff’s
Department used County vehicles to conduct personal business (although not
income-producing activity), including going to baseball games and bars, and were
never disciplined for it. The summary judgment record includes evidence that
Joyce was “aware of” one instance where a lieutenant in the Department drove 13
from Portland to Logan Airport in Boston in a County vehicle to deliver a passport
that a commander embarking on a personal international trip had left behind at his
house.
[¶19] From this evidence, a jury could reasonably infer that the Department
had at least an ad hoc standard of tolerance toward the violation of policies
regarding employee leave and use of County resources, where many infractions did
not lead to investigations, much less employee discipline. On this basis, a
reasonable jury could then conclude that even though Brady’s violation of internal
policies was arguably comparable to violations committed by other County
employees, he was subjected to an unusual response from the County and was
singled out because of his prior complaints.4 See Mesnick v. Gen. Elec. Co.,
950 F.2d 816, 828 (1st Cir. 1991) (stating that “evidence of differential treatment
in the workplace” is a type of circumstantial evidence that “can demonstrate
retaliation in a way sufficient to leap the summary judgment or directed verdict
hurdles”); Osher v. Univ. of Me. Sys., 703 F. Supp. 2d 51, 68 (D. Me. 2010)
4 While we recognize that unlike the other employees conducting personal business, Brady was engaged in income-producing activity, it is the province of the jury to determine whether the actions taken against Brady constituted a disproportionate and retaliatory response. 14
(stating that circumstantial evidence of causation may include “evidence of
differential treatment in the workplace” (quotation marks omitted)).5
[¶20] Second, although a jury could find it to be less compelling, Brady has
produced evidence that the actions taken against him may have been unreasonably
disproportionate to the violations that he committed. Foss’s initial investigation
concluded that there was no probable cause to charge Brady with a crime, an
assessment that was shared by Barnes, who conducted the internal affairs
investigation. Nonetheless, Joyce referred the case to the District Attorney’s office
for possible prosecution. Joyce also referred the case for review by the Maine
Criminal Justice Academy, even though such a review may not have been
required.6 Finally, Joyce demoted Brady to the position of patrol officer, a
punishment that an arbitrator later found to be too harsh for the violations that
Brady committed. Although a reasonable jury could agree with Joyce’s
contentions that these actions were taken in order to ensure a thorough review of
Brady’s case, a reasonable jury could alternatively find that they were
5 Federal jurisprudence addressing employment retaliation claims carries weight because “[o]ur construction of the . . . WPA has been guided by federal law.” Currie v. Indus. Sec., Inc., 2007 ME 12, ¶ 13, 915 A.2d 400. 6 Cumberland County asserts that it was required by statute to refer the case to the Maine Criminal Justice Academy. See 25 M.R.S. § 2807 (2012) (Section 2807 was amended in 2013 in respects that are not pertinent here. See 2013 P.L., ch. 147, § 40 (codified at 25 M.R.S. § 2807 (2014))). The statute, however, merely requires that criminal convictions and other serious misconduct, which may not include policy violations of the type committed by Brady, be reported to the Academy. See 25 M.R.S. §§ 2806-A, 2807 (2014). 15
disproportionate in relation to Brady’s violations of internal policies, particularly
when others who were generally similarly situated were not investigated or
disciplined, and that, when viewed along with the other evidence favorable to
Brady, Joyce was motivated to impose discipline on Brady in response to his
complaints. See Kirouac v. Donahoe, No. 2:11-cv-00423-JAW, 2013 U.S. Dist.
LEXIS 82349, at *136 (D. Me. June 11, 2013) (finding that a reasonable juror
could have inferred that a supervisor’s “target[ing]” of the plaintiff for “harsher
enforcement” of rules was evidence of causation).
[¶21] Third, on this record, although there was no direct evidence that Joyce
knew about Brady’s complaints, a reasonable jury could attribute Joyce’s alleged
disproportionate response to a retaliatory motivation because it could infer that
Joyce had learned of Brady’s complaints. At the time Brady made his complaints,
Joyce was chief deputy sheriff, and Lieutenant Foss and Lieutenant Barnes both
reported to him. In particular, a jury could find that Barnes, as the lieutenant in
charge of internal affairs investigations, would have communicated with Joyce
about the internal affairs investigation into the very incident about which Brady
complained. Brady complained to both Barnes and Foss about the Department’s
lack of response to the incident. A reasonable jury could conclude that at least one
of them would have mentioned Brady’s complaints to Joyce as part of the same
matter about which Barnes reported directly to Joyce. 16
[¶22] Based on this cumulative evidence, Brady has generated sufficient
evidence to allow a jury to determine whether the adverse employment action that
the County took against Brady was substantially motivated at least in part by his
protected activity.
[¶23] In its order granting the County’s motion for summary judgment, the
trial court considered the gap in time between when Brady complained about the
prisoner assault incident in May 2010 and when he was placed on paid
administrative leave and investigated in early 2012, concluding that “[t]he timing
of events in this case is plaintiff’s greatest obstacle to demonstrating a prima facie
case.” It is true that “[t]emporal proximity . . . may serve as the causal link for
purposes of a prima facie case” by supporting an inference of causation. Daniels v.
Narraguagus Bay Health Care Facility, 2012 ME 80, ¶ 21, 45 A.3d 722. The
inverse, however, is not true: the lack of temporal proximity, although potentially
persuasive, is not dispositive, and in the context of a summary judgment motion it
does not compromise a plaintiff’s prima facie case. See Murphy v. United States
Dep’t of Veterans Affairs, No. 1:12-cv-379-DBH, 2013 U.S. Dist. LEXIS 119869,
at *20 (D. Me. Aug. 23, 2013) (stating that “the lapse of time alone is not a basis
for summary judgment”). At trial, the fact-finder would be entitled to find that the
passing of a significant amount of time between an employee’s protected activity
and subsequent adverse employment action diminishes the likelihood that the two 17
were causally connected. A jury, in other words, may reject an employee’s
contention that the employer was merely lying in wait. That, however, is a
question of how much weight to assign to the evidence, which is necessarily a
determination that can be made only at trial. Thus, even though a significant
period of time elapsed between Brady’s complaints and his demotion, on a motion
for summary judgment the lack of temporal proximity is not, as a matter of law, a
dispositive factor. Instead, Brady has the burden of producing some evidence from
which a reasonable jury could find a causal link—a burden that he has met here.
[¶24] We therefore conclude that, even without the evidentiary benefit of
temporal proximity, Brady has produced sufficient circumstantial evidence to
generate a triable claim of a causal relationship, and, in combination with evidence
of protected activity and adverse employment action, he therefore has made out a
prima facie case of retaliation in the workplace.
B. Application of McDonnell Douglas to WPA Claims
[¶25] The County contends that, even if Brady succeeded in making out a
prima facie case, it is entitled to summary judgment pursuant to the McDonnell
Douglas framework because Brady has not produced sufficient evidence that the
County’s proffered non-retaliatory reason for disciplining him was pretextual.
Brady contends that the McDonnell Douglas framework lacks utility for deciding
motions for summary judgment in WPA retaliation cases and that we should no 18
longer apply that approach in this context. We agree and conclude that in a
summary judgment motion in a WPA retaliation case, it is unnecessary to shift the
burden of production pursuant to McDonnell Douglas once the plaintiff—as she
must do to present a prima facie case—has presented the requisite evidence that the
adverse employment action was motivated at least in part by retaliatory intent. In
analyzing this issue, we first consider the origins and purpose of the McDonnell
Douglas analysis. We then evaluate the suitability of applying that analysis to
WPA cases governed by Maine law.
1. McDonnell Douglas
[¶26] The McDonnell Douglas case addressed the parties’ burdens of
production at trial, rather than on summary judgment, for racial discrimination
claims brought under Title VII of the Civil Rights Act of 1964. See McDonnell
Douglas Corp., 411 U.S. at 797. Under that analysis, in order to establish a prima
facie case, the plaintiff need only show “(i) that he belongs to a racial minority; (ii)
that he applied and was qualified for a job for which the employer was seeking
applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after
his rejection, the position remained open and the employer continued to seek
applicants from persons of complainant’s qualifications.” Id. at 802.
[¶27] McDonnell Douglas was intended to create a procedure that was
thought to be favorable to plaintiffs in Title VII cases who face difficulty in 19
presenting evidence of the employer’s discriminatory animus. See Trans World
Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985); Wells v. Colorado Dept. of
Transp., 325 F.3d 1205, 1224 (10th Cir. 2003) (Hartz, J., concurring). That
difficulty is both foreseeable and understandable because of the challenges
inherent in proving an employer’s discriminatory intent. Trans World Airlines,
469 U.S. at 121 (“The shifting burdens of proof set forth in McDonnell Douglas
are designed to assure that the [employee] has his day in court despite the
unavailability of direct evidence.” (quotation marks omitted)); Lapsley v.
Columbia Univ.—Coll. of Physicians & Surgeons, 999 F. Supp. 506, 514
(S.D.N.Y. 1998). The McDonnell Douglas framework constitutes “an
information-forcing device by requiring employers to explain arguably suspicious
activity.” Lapsley, 999 F. Supp. at 514. Therefore, in the first step of the
McDonnell Douglas three-step process, the four elements of a Title VII prima facie
case do not include a requirement that the plaintiff produce evidence of unlawful
motivation. Rather, presentation of a prima facie case as defined in McDonnell
Douglas merely “raises an inference of discrimination only because we presume
these acts, if otherwise unexplained, are more likely than not based on the
consideration of impermissible factors.” Furnco Constr. Corp. v. Waters,
438 U.S. 567, 577 (1978) (emphasis added). 20
[¶28] The standard for a prima facie case created in McDonnell Douglas is
therefore limited in its effect: it creates a “legally mandatory, rebuttable
presumption,” Burdine, 450 U.S. at 254 n.7, but it falls short of a body of evidence
that would be sufficient to permit a finder of fact to conclude that the employer
acted unlawfully. See id. In this way, a “prima facie case” within the meaning of
the McDonnell Douglas analysis is different than a “prima facie case” that more
generally describes a collection of evidence that is sufficient to withstand a motion
for summary judgment. See, e.g., Budge, 2012 ME 122, ¶ 12, 55 A.3d 484
(referring to the plaintiff’s burden to produce evidence of a prima facie case for
each element of a claim to defeat a motion for summary judgment).
[¶29] Under McDonnell Douglas, if the employee succeeds in presenting
evidence of a prima facie case, the burden of production then shifts to the employer
to articulate the explanation for the adverse employment action—in other words, to
produce evidence of an explanation that will cause the disappearance of the initial
“inference of discrimination,” which arose only because of the absence of a
legitimate explanation, and then “the factual inquiry proceeds to a new level of
specificity.” Burdine, 450 U.S. at 255. Under the McDonnell Douglas framework
as applied to a summary judgment motion, it is only at this point that the employee
must point to evidence in the record on summary judgment that would allow a
reasonable jury to conclude that the employer’s conduct was motivated at least in 21
part by unlawful considerations, thereby creating a triable issue about the
employer’s proffered explanation. The employee is not called on to present
evidence of causation unless and until the employer raises the issue by presenting
some evidence of a legitimate, non-discriminatory reason for its actions.
[¶30] In most cases, the employer will counter the employee’s evidence of
retaliatory intent by producing evidence that it acted for legitimate, non-retaliatory
reasons.7 Brady v. Office of the Sergeant at Arms, 520 F.3d. 490, 493
(D.C. Cir. 2008); Lapsley, 999 F. Supp. at 514 (“Of course, the employer in every
case will articulate a nondiscriminatory reason for its action.”). This has the effect
of negating the “inference of discrimination,” because the employer’s actions are
no longer unexplained. Therefore, under McDonnell Douglas, the real
battleground in summary judgment motions is in the application of the third step,
where a court is called to examine whether the employee has presented evidence
responsive to the employer’s articulation of a legitimate, non-discriminatory reason
for the action it took against the employee. Brady, 520 F.3d at 494; Lapsley,
999 F. Supp. at 514 (observing that as McDonnell Douglas is often applied, “[t]he
first two steps, for all practical purposes, have fallen out of the equation”).
Although McDonnell Douglas created a compartmentalized analysis with internal
7 If the employer does not present evidence of such a non-retaliatory motive, then the employee may become entitled to a summary judgment based on evidence in a prima facie case that is not placed in material dispute by the employer. 22
shifting burdens of production, courts applying that process have recognized that in
the specific context of summary judgment motions, the ultimate question really is
whether the record on summary judgment contains evidence that the adverse
employment action taken against an employee was motivated at least in part by
unlawful considerations.8 Brady, 520 F.3d at 494; Fields v. New York State Office
of Mental Retardation and Developmental Disabilities, No. 96-7523,
1997 U.S. App. LEXIS 19794, at *10 (2d Cir. May 23, 1997); Peterson v. City
Coll., 32 F. Supp. 2d 675, 683 (S.D.N.Y. 1999). This is the issue that is addressed
in the third step of the McDonnell Douglass process.
[¶31] With this understanding of the reasons underlying the development
and application of the McDonnell Douglas process, we now examine its suitability
to a motion for summary judgment filed in a WPA retaliation action under Maine
law.
8 While federal courts remain bound to follow the McDonnell Douglas jurisprudence, some have not been reticent to express critical views about the doctrine and its ongoing usefulness. See, e.g., Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (noting that the formulation of the prima facie case is “a largely unnecessary sideshow . . . spawning enormous confusion and wasting litigant and judicial resources”); Wells v. Colorado Dep’t. of Transp., 325 F.3d 1205, 1221, 1224 (10th Cir. 2003) (Hartz, J., concurring) (stating that McDonnell Douglas has created “wasted judicial effort and greater opportunity for judicial error” and that it causes courts to “focus on the isolated components of the McDonnell Douglas framework, losing sight of the ultimate issue”); Peterson v. City Coll., 32 F. Supp. 2d 675, 683 (S.D.N.Y. 1999) (describing the McDonnell Douglas model as “confusing and unworkable”); Lapsley v. Columbia Univ.—Coll. of Physicians & Surgeons, 999 F. Supp. 506, 514 (S.D.N.Y. 1998) (noting a “legion” of criticisms of the “cumbersome” doctrine and quoting characterizations by courts and commentators as a “‘yo-yo rule,’ ‘befuddling,’ ‘replete with confusion,’ and ‘incomprehensible’”). 23
2. WPA Claims
[¶32] Under Maine law, the cause of action for whistleblower retaliation
consists of three elements: (1) that the employee engaged in a protected activity;
(2) that the employer took adverse employment action against the employee; and
(3) that there was a causal connection between the two. Walsh, 2011 ME 99, ¶ 24,
28 A.3d 610. Therefore, at trial an employee asserting a WPA retaliation claim
must present evidence that would allow a fact-finder to reasonably find each of the
three elements of the claim. Id. That standard is the same in assessing an
employee’s case that is challenged through a motion for summary judgment. See
Corey, 1999 ME 196, ¶ 7, 742 A.2d 933. In both situations, the employee must
present evidence that would allow the fact-finder “to rule in the [plaintiff’s] favor.”
Lougee Conservancy v. CitiMortgage, Inc., 2012 ME 103, ¶ 12, 48 A.3d 774
(quotation marks omitted).
[¶33] Because of the way a WPA claim is defined under Maine law, in a
summary judgment motion—just as at trial—the employee must not only produce
evidence that she engaged in protected activity and later suffered an adverse
employment action, but in the first instance she must also produce some evidence
of the employer’s unlawful motivation. Walsh, 2011 ME 99, ¶ 24, 28 A.3d 610.
Without evidence of a causal connection between the protected activity and the
adverse employment action, the employee has not presented a prima facie case for 24
WPA retaliation, and the employer is entitled to summary judgment.
Alternatively, if the employee presents evidence of a causal connection between
protected activity and adverse employment action, then the employee has created a
record sufficient to defeat an employer’s motion for summary judgment.
[¶34] This requirement serves to distinguish WPA retaliation cases from
Title VII cases. Under McDonnell Douglas, the employee with a Title VII claim
does not have an obligation to produce evidence of causation—that is,
discriminatory animus—until after the employer satisfies the second step of the
process by producing evidence of a lawful explanation for the adverse employment
action. In a WPA case, on the other hand, even before the burden of production
would shift to the employer under the McDonnell Douglas model, the employee
would already have been required to present evidence of causation. When an
employee has presented evidence of (1) protected activity, (2) an adverse
employment action, and (3) a causal relationship between the two, she has already
presented a case that would be sufficient to go to a jury, and therefore one that is
sufficient to defeat the employer’s motion for summary judgment.
[¶35] Once the employee has presented evidence covering the elements of a
WPA retaliation claim, the employer’s evidence of a lawful reason for the adverse
employment action, presented as the second step of the McDonnell Douglas
analysis, merely creates a dispute of material fact and precludes the court from 25
granting summary judgment to the employee, because it is evidence that the
employer may use to contradict or otherwise call into question the employee’s
evidence that the employer acted with a retaliatory motivation. In other words, it
is evidence presented by the employer to dispute the truth of the employee’s
evidence of wrongful conduct in the workplace. Similarly, any evidence
presented by the employee at the third step of the McDonnell Douglas analysis,
that the legally benign explanation offered by the employer to explain its action
was actually a pretext, does not affect the fact that with her initial showing, she
had already presented sufficient evidence for the jury to conclude that the
employer’s conduct was actionable.
[¶36] Therefore, the second and third phases of the McDonnell Douglas
model require an analysis that, on a summary judgment motion in a WPA
retaliation case, is duplicative. In summary judgment proceedings in WPA
retaliation cases, if the employee presents evidence encompassing the three
elements of a WPA claim, there is no reason to shift the burdens according to
McDonnell Douglas, because the evidence that must be produced by the employee
in the first instance is by itself sufficient to defeat a motion for summary
judgment. See Farrell, 206 F.3d at 286; Henderson v. Jantzen, Inc.,
719 P.2d 1322, 1324 (Or. Ct. App. 1986) (“A plaintiff’s prima facie case does not 26
disappear merely because a defendant asserts a non-discriminatory reason which
may or may not persuade the trier of fact.”).
[¶37] Elimination of the burden-shifting process does not limit the scope of
the evidence presented in summary judgment motion practice in WPA retaliation
cases, when compared to the evidence that would be presented under the
McDonnell Douglas model. With or without the McDonnell Douglas
burden-shifting process, the question of whether the record on summary judgment
contains evidence of causation requires the court to recognize any evidence that
the employer had a lawful reason for the adverse action taken against the
employee, and any evidence that that proffered reason is merely a pretext.
Accordingly, the evidence that would be presented in the second and third stages
of the McDonnell Douglas framework will still fall within the analytical
framework applicable to summary judgment motions in WPA retaliation cases
because that evidence still bears on the allegation of causation. Causation is an
essential element of a claim of WPA retaliation, and so the parties are entitled to
present evidence of the reasons for the employer’s action, but without any need to
follow the McDonnell Douglas burden-shifting structure. Without McDonnell
Douglas, the court will now consider that evidence in a unitary way and simply
determine whether the record as a whole would allow a jury to reasonably 27
conclude that the adverse employment action was motivated at least in part by
retaliatory intent.
[¶38] Eliminating the burden-shifting analysis set out in McDonnell
Douglas for WPA retaliation claims is analytically similar to the approach taken
by some federal courts in Title VII cases, which are directly governed by that
case. Those courts essentially presume that the employee has presented evidence
sufficient to make out a prima facie case and that the employer has articulated a
lawful reason for its actions. They then focus almost exclusively on the question
of whether the record could reasonably sustain an argument of causation. E.g.,
Brady, 530 F.3d at 494; Lapsley, 999 F. Supp. at 514-15. Thus, that approach
functionally diminishes the first two steps of McDonnell Douglas almost to the
point of invisibility, thereby eliminating the burden-shifting exercise, and instead
proceeds directly to the question of causation. The effect of that approach is the
same as we prescribe here, which is to examine the record as a whole to determine
simply whether the employee has presented evidence that could support a finding
that the adverse employment action was motivated at least in part by protected
activity.
[¶39] For these reasons, we are now convinced that application of the
McDonnell Douglas framework to the summary judgment stage of WPA
retaliation cases, which would shift the burden of production back and forth after 28
the employee had made out a case for retaliation, is unnecessary and only serves to
complicate a proper analysis of the employee’s claim.9 See Trott, 2013 ME 33,
¶ 28, 66 A.3d 7 (Silver, J. concurring) (stating that the “rigid and artificial
trifurcation of the causation analysis confuses rather than clarifies the ultimate
issue in employment discrimination cases: whether there is evidence of
discrimination” (quotation marks omitted)). Instead, we hold that at the summary
judgment stage in WPA retaliation cases, the parties are held to the same standard
as in all other cases. The employer has the burden to “show that there is no
genuine issue as to any material fact,” M.R. Civ. P. 56(c), and that “the evidence
fails to establish a prima facie case for each element of the cause of action,” Budge,
2012 ME 122, ¶ 12, 55 A.3d 484 (quotation marks omitted). As part of that
process, the employee must produce evidence generating a triable issue on each of
those elements. Lougee Conservancy, 2012 ME 103, ¶ 12, 48 A.3d 774. If the
evidence in the summary judgment record would allow a jury to find for the
9 Because this case reaches us on summary judgment, it does not present us with occasion to consider whether the McDonnell Douglas burden-shifting structure should still be treated as a useful analytical device at trial. Compare Maine Human Rights Comm’n. v. Auburn, 408 A.2d 1253, 1261 (Me. 1979) (“The special rules developed by the federal courts provide a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” (quotation marks omitted)), and Gossett v. Tractor Supply Co., 320 S.W.3d 777, 784 (Tenn. 2010) (approving “the McDonnell Douglas framework . . . to permit the trier of fact to better evaluate the evidence as to whether the employer was motivated by a discriminatory or retaliatory intent”), with Palmquist v. Shinseki, 689 F.3d 66, 71 (1st Cir. 2012) (indicating that at trial, “the McDonnell Douglas framework, with its intricate web of presumptions and burdens, becomes an anachronism”). 29
employee on each element of the employee’s case, then the employer is not
entitled to summary judgment.
[¶40] Here, Brady produced evidence sufficient to generate a genuine issue
of material fact on each of the three elements of his claim for retaliation, including
the element that his demotion was motivated at least in part by retaliation.
Accordingly, the County is not entitled to judgment as a matter of law.
Determinations of the weight to be given to that evidence, including whether Brady
can prove that the County’s explanation for the adverse employment action was
pretext for a retaliatory motive, are necessarily left for a fact-finder’s decision at
trial. For these reasons, we vacate the summary judgment entered in favor of the
County and remand for further proceedings.
The entry is:
Judgment vacated. Remanded to the Superior Court for further proceedings consistent with this opinion.
On the briefs:
Jonathan M. Goodman, Esq., and William K. McKinley, Esq., Troubh Heisler, PA, Portland, for appellant Gerard Brady
Peter T. Marchesi, Esq., and Cassandra S. Shaffer, Esq., Wheeler & Arey, PA, Waterville, for appellee Cumberland County 30
At oral argument:
Jonathan M. Goodman, Esq., for appellant Gerard Brady
Peter T. Marchesi, Esq., for appellee Cumberland County
Androscoggin County Superior Court docket number CV-2013-56 FOR CLERK REFERENCE ONLY