Margaret Handlin v. Broadreach Public Relations, LLC

2022 ME 2, 265 A.3d 1008

• Court: Supreme Judicial Court of Maine
• Decided: January 6, 2022
• Status: Published

Opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2022 ME 2 Docket: Cum-21-90 Argued: November 4, 2021 Decided: January 6, 2022

Panel: STANFILL, C.J., and MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

MARGARET HANDLIN

v.

BROADREACH PUBLIC RELATIONS, LLC

MEAD, J.

[¶1] Margaret Handlin appeals from a summary judgment entered in the

Superior Court (Cumberland County, Kennedy, J.) in favor of Broadreach Public

Relations, LLC, (Broadreach) on Handlin’s complaint alleging unlawful

discrimination, retaliation, and discharge in violation of the Whistleblowers’

Protection Act (WPA), 26 M.R.S. §§ 831-840 (2021); the Maine Human Rights

Act, 5 M.R.S. §§ 4551-4634 (2020);1 and 26 M.R.S. § 570 (2021), which prohibits

discrimination against an employee who reports or participates in an

investigation regarding an occupational safety or health hazard. Handlin also

1 Portions of the Maine Human Rights Act have been amended since the operative time of this

action, but not in any way that affects the present appeal. E.g., P. L. 2021, ch. 366, (effective Oct. 18, 2021) (titled “An Act To Improve Consistency in Terminology and within the Maine Human Rights Act”). 2

appeals from the court’s denial of her M.R. Civ. P 60(b) motion for relief from

judgment. We affirm the judgment.

I. BACKGROUND

[¶2] The following facts are drawn from Broadreach’s statement of

material facts2 and the summary judgment record and are viewed in the light

most favorable to Handlin as the nonprevailing party. See Stanley v. Hancock

Cnty. Comm’rs, 2004 ME 157, ¶ 13, 864 A.2d 169.

[¶3] Handlin worked as a client manager at Broadreach from

March 2018 until January 2019. In her capacity as a client manager, Handlin

worked with the AC Hotel Portland Downtown (AC Hotel), a client of

Broadreach’s. On November 10, 2018, the majority owner and president of

Broadreach held a private party at the AC Hotel that was unrelated to the hotel’s

business relationship with Broadreach. On December 3, 2018, Handlin

reported to her co-worker the substance of a conversation she had recently had

with her client contact at the AC Hotel. Handlin told her co-worker that her

contact criticized Broadreach’s president for her conduct at the November 10th

2 Handlin failed to properly respond to Broadreach’s statement of material facts. See M.R. Civ. P. 56(h)(2). As a result, the court deemed Broadreach’s facts admitted. See M.R. Civ. P. 56(h)(4); see also Dyer v. Dep’t of Transp., 2008 ME 106, ¶ 15, 951 A.2d 821 (“Failure to properly respond to a statement of material facts permits a court to deem admitted any statements not properly denied or controverted.”). 3

party and indicated that she, the contact, did not want to work with the

president. At a later deposition, Handlin could not recall the exact words that

her contact used nor the exact words that she herself used when reporting

these comments to her co-worker. Handlin’s report was conveyed by her

co-worker to Broadreach’s vice president—who was also Handlin’s

supervisor—and the vice president subsequently conveyed the report to

Broadreach’s president.

[¶4] Upon hearing the report, the president met with the general

manager of the AC Hotel on December 4, 2018. The general manager

contradicted Handlin’s report and told the president that neither her private

party nor her alleged conduct at the party had any relevance to the business

relationship between the AC Hotel and Broadreach. In January 2019, the

president of Broadreach also met with Handlin’s contact, who had been on

leave during the president’s December meeting with the general manager. The

contact assured the president that she had never suggested to Handlin that the

president’s party or conduct had any relevance to the business relationship

between the AC Hotel and Broadreach. Later that month, Handlin was offered

a choice between signing a final written warning or a release and separation 4

agreement. Handlin’s counsel ultimately informed Broadreach that Handlin

would pursue separation.

[¶5] On February 21, 2020, after receiving a “right-to-sue” letter from

the Maine Human Rights Commission, 5 M.R.S. § 4612(6), Handlin filed a

complaint in the Superior Court alleging that after she made the report to her

co-worker about Broadreach’s president, she was targeted for warnings,

counseling, and discipline that culminated in her termination from Broadreach.

Handlin alleged that Broadreach was liable for retaliation against her for

making a whistleblower complaint (Count 1), and for intentional and negligent

infliction of emotional distress caused by the retaliation (Counts 2 and 3).

[¶6] On December 18, 2020, Broadreach moved for a summary judgment

on all counts of Handlin’s complaint, asserting that Handlin’s report to her

co-worker did not constitute a protected report pursuant to 26 M.R.S.

§ 833(1)(A) and, as such, Handlin was not entitled to the protections afforded

whistleblowers. Broadreach served its motion for summary judgment and

supporting record on Handlin electronically via email to her attorney. See

M.R. Civ. P. 5(b). Handlin did not file an opposition to Broadreach’s motion for

summary judgment. On February 8, 2021, after the deadline for filing an

opposition had passed, Handlin moved for an enlargement of the deadline to 5

respond to Broadreach’s motion for summary judgment. In her motion,

Handlin claimed her “counsel’s failure to see the electronic service of

[Broadreach’s] Motion for Summary Judgment was inadvertent and

unintentional” and that “sufficient good cause or excusable neglect exists to

permit [Handlin] the opportunity to oppose [Broadreach’s motion].”

[¶7] On February 9, 2021, the court granted Broadreach a summary

judgment on all counts of Handlin’s complaint, and on February 18, 2021, the

court denied Handlin’s motion to enlarge her response deadline. Handlin

timely filed a motion for relief from judgment pursuant to M.R. Civ. P. 60(b).

While awaiting the court’s decision on her motion, Handlin filed a notice of

appeal from the court’s February 9 order granting summary judgment to

Broadreach with respect to Count 1 of her complaint. See M.R. App. P. 2A,

2B(c)(1). The court denied Handlin’s motion for relief from judgment on

March 17, 2021. Handlin then filed a second notice of appeal, appealing from

the denial of her motion for relief from judgment, and we consolidated her

appeals. See M.R. App. P. 2A, 2B(c)(1). 6

II. DISCUSSION

A. Summary Judgment

[¶8] “We review a grant of summary judgment de novo, viewing the facts

and any inferences that may be drawn from them in the light most favorable to

the nonprevailing party to determine if the statements of material facts and

referenced record evidence generate a genuine issue of material fact.” Cookson

v. Brewer Sch. Dep't, 2009 ME 57, ¶ 11, 974 A.2d 276. “An issue is genuine if

there is sufficient evidence supporting the claimed factual dispute to require a

choice between the differing versions; an issue is material if it could potentially

affect the outcome of the matter.” Brown Dev. Corp. v. Hemond, 2008 ME 146,

¶ 10, 956 A.2d 104. Because Handlin did not oppose Broadreach’s motion for

summary judgment, and because all facts asserted in Broadreach’s statement

of material facts are supported by appropriate record citations, those facts

“must be deemed admitted.” Halliday v. Henry, 2015 ME 61, ¶ 8, 116 A.3d 1270.

[¶9] Because there are no genuine issues of material fact in dispute, we

review de novo the trial court’s interpretation and application of the relevant

statutes, and we evaluate whether Broadreach is entitled to a summary

judgment as a matter of law. See Remmes v. Mark Travel Corp., 2015 ME 63,

¶¶ 18-19, 116 A.3d 466. “Summary judgment is properly granted when the 7

plaintiff fails to establish a prima facie case for each element of [her] cause of

action.” Doe v. Williams, 2013 ME 24, ¶ 10, 61 A.3d 718 (quotation marks

omitted).

[¶10] Handlin alleges that Broadreach violated the WPA and the Maine

Human Rights Act and discriminated against her by targeting her for “warnings,

counseling[,] and discipline, culminating in [her] termination” in “retaliation”

for her report about Broadreach’s president’s alleged conduct. See 5 M.R.S.

§§ 4551-4634; 26 M.R.S. §§ 570, 831-840.

1. Whistleblower Protection

[¶11] “The WPA protects an employee against retaliation for making a

good faith report to the employer of what the employee has reasonable cause

to believe is a violation of a law.” Nadeau v. Twin Rivers Paper Co., LLC,

2021 ME 16, ¶ 26, 247 A.3d 717. The WPA provides, in relevant part:

1. Discrimination prohibited. No employer may discharge, threaten or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because:

A. The employee, acting in good faith . . . reports orally or in writing to the employer . . . what the employee has reasonable cause to believe is a violation of a law or rule adopted under the laws of this State, a political subdivision of this State or the United States. 8

26 M.R.S. § 833(1)(A).3 “The Maine Human Rights Act provides a right of action

to employees discharged because of protected activity.” Stewart-Dore v.

Webber Hosp. Ass’n, 2011 ME 26, ¶ 9, 13 A.3d 773; 5 M.R.S. §§ 4572(1)(A),

4621.4

[¶12] To prevail on her WPA claim, Handlin must show that “(1) she

engaged in activity protected by the WPA; (2) she experienced an adverse

employment action; and (3) a causal connection existed between the protected

activity and the adverse employment action.” Stewart-Dore, 2011 ME 26, ¶ 10,

13 A.3d 773 (alterations and quotation marks omitted); see Costain v. Sunbury

Primary Care, P.A., 2008 ME 142, ¶ 6, 954 A.2d 1051. Therefore, if Handlin’s

report to her co-worker was not an activity protected by the statute, her entire

claim fails.

[¶13] The unopposed and supported facts establish that Handlin’s report

to her co-worker concerned conduct of a Broadreach employee that occurred

during nonwork hours at a private party while the employee was not engaged

3 The legislative history of the WPA is clearly in accord with the plain language of the statute. Its

sponsors stated, “This bill protects employees from being fired for reporting violations of law by their employers and for refusing to follow a directive that violates a law.” L.D. 736, Statement of Fact (111th Legis. 1983). Although Handlin cited to the entirety of the WPA in her initial complaint, the summary judgment record and her brief do not allege any alternative theory under the WPA.

4Title 5 M.R.S. § 4572(1)(A) was amended in 2021, although the amendments are not relevant in the present appeal. See P.L. 2021, ch. 366, § 5 (effective Oct. 18, 2021) (to be codified at 5 M.R.S. § 4572(1)(A)). 9

in work for Broadreach. Even when viewing the facts in the light most favorable

to Handlin and assuming that Handlin did have reasonable cause to believe that

the president’s conduct at her private party was a violation of a rule or law,

Handlin has failed to demonstrate that her report concerned behavior that was

in any way associated with her employer—Broadreach. The record presents

Handlin’s conversation with her co-worker as a gossipy account of the boss’s

party and not a whistleblowing account of a perceived violation of a law.

Sharing a story with a co-worker about the boss’s alleged behavior at her

nonwork event is not the exposure of wrongdoings the WPA was intended to

protect. Because the summary judgment record established that Handlin’s

report was not an activity protected by the WPA, Handlin cannot establish a

prima facie case for unlawful retaliation pursuant to the Maine Human Rights

Act, and Broadreach is entitled to a summary judgment on Count 1 of the

complaint. See Bonin v. Crepeau, 2005 ME 59, ¶ 8, 873 A.2d 346.

2. Discrimination

[¶14] Handlin also contends that Broadreach discriminated against her

in violation of 26 M.R.S. § 570. Section 570 prohibits discrimination against an

employee “because that employee has filed any complaint concerning an

alleged occupational safety or health hazard or has testified or is about to testify 10

in any proceeding relating to employee safety and health or because of the

exercise by the employee on behalf of the employee or others of any right under

[Chapter 6, entitled ‘Occupational Safety Rules’].” 26 M.R.S. § 570. Based on the

admitted facts and summary judgment record, Handlin’s report about the

alleged conduct of her boss at a private party does not fall within the plain

meaning of section 570 because the alleged conduct did not concern an

occupational safety or health hazard, or otherwise relate to employee safety

and health.

[¶15] Because the evidence in the light most favorable to Handlin does

not establish a prima facie case of retaliation, termination, or discrimination

pursuant to the WPA, the Maine Human Rights Act, or 26 M.R.S. § 570, summary

judgment in favor of Broadreach on Count 1 as a matter of law was appropriate.

B. Motion for Relief from Judgment

[¶16] Handlin contends that Broadreach used ineffective service for its

“voluminous summary judgment records” that deprived her of due process,

namely, the opportunity to participate and be heard in opposition to the

summary judgment. Handlin argues that M.R. Civ. P. 5(b) excludes summary

judgment records in excess of fifty pages from electronic service and that the 11

court’s summary judgment in favor of Broadreach is thus void as the term is

used in M.R. Civ. P. 60(b)(4).5

[¶17] We review the court’s ruling on the alleged due process violation

de novo because there is no room for a court to exercise discretion if a judgment

is void as the term is used in M.R. Civ. P. 60(b)(4). Reliable Copy Serv., Inc. v.

Liberty, 2011 ME 127, ¶ 8, 32 A.3d 1041; Foley v. Adam, 638 A.2d 718, 719

(Me. 1994).

[¶18] Contrary to Handlin’s contention, M.R. Civ. P. 5(b) does not

prohibit a party moving for summary judgment from serving summary

judgment records over fifty pages by electronic transmission. The rule permits

service of documents “to the last known electronic mail address provided to the

court” and provides that “any record in support of summary judgment in excess

of 50 pages . . . [is] not required to be produced or transmitted in electronic

format.” M.R. Civ. P. 5(b)(2) (emphasis added). The rule does not provide that

electronic transmission is not permitted for a summary judgment record in

excess of fifty pages. Broadreach chose to serve Handlin with the summary

judgment record electronically pursuant to this permissive rule. As such,

5 Although momentarily raised at oral argument, Handlin failed to brief her contention that the

court erred in finding that her failure to see or read the electronic filing from Broadreach was not excusable neglect. We decline to consider this unbriefed issue. See Mehlhorn v. Derby, 2006 ME 110, ¶ 11, 905 A.2d 290; Holland v. Sebunya, 2000 ME 160, ¶ 9 n.6, 759 A.2d 205. 12

Broadreach’s electronic service was “complete when transmitted, . . . presumed

to have been received by the intended recipient, and [had] the same legal effect

as the service of an original paper document.” M.R. Civ. P. 5(b)(2). The

court did not err in denying Handlin’s motion for relief pursuant to

M.R. Civ. P. 60(b)(4) because Broadreach’s electronic service did not violate

Handlin’s right to due process.

The entry is:

Judgment affirmed.

Jeffrey Bennett, Esq. (orally), Legal-Ease, LLC, South Portland, for appellant Margaret Handlin

Carol I. Eisenberg, Esq. (orally), Richardson, Whitman, Large & Badger, Portland, for appellee Broadreach Public Relations, LLC

Cumberland County Superior Court docket number CV-2020-98 FOR CLERK REFERENCE ONLY