WPA claim in Maine

2021See Bard v. Bath Iron Works Corp., 590 A.2d 152, 156-157 (Me. 1991). 16 Dist.

2015In Bard, the employee brought a WPA claim alleging that he was fired after reporting to his supervisors that his employer had violated a clause in its contract with the Navy. 590 A.2d at 153 .

2005See, e.g., id. ¶ 18, 719 A.2d at 515 (failure to recommend an employee for future employment was insufficient to constitute a WPA violation); Nelson v. Univ. of Me., 923 F.Supp. 275, 283 (D.Me.1996) (criticism of a professor and a letter to her personnel file does not constitute a WPA violation); Paquin v. MBNA, 233 F.Supp.2d 58 (D.Me.2002) (failure to grant a reassignment is not an adverse employment action). [¶ 8] Blake also contends, however, that she experienced a hostile work environment, which she argues constitutes an adverse employment action under the second prong of the WPA claim.

2005See, e.g., id. ¶ 18, 719 A.2d at 515 (failure to recommend an employee for future employment was insufficient to constitute a WPA violation); Nelson v. Univ. of Me., 923 F.Supp. 275, 283 (D.Me.1996) (criticism of a professor and a letter to her personnel file does not constitute a WPA violation); Paquin v. MBNA, 233 F.Supp.2d 58 (D.Me.2002) (failure to grant a reassignment is not an adverse employment action). [¶ 8] Blake also contends, however, that she experienced a hostile work environment, which she argues constitutes an adverse employment action under the second prong of the WPA claim.

2020Sec., Inc., 2007 ME 12 , ¶ 26 & n.7, 915 A.2d 400 , we noted, without resolving, 5 the argument that an employee cannot maintain a WPA claim if that employee is not the “initial reporter,” that is, if the employer has already learned of the unsafe condition or practice from some other source. 12 “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.” Brady, 2015 ME 143, ¶ 37 , 126 A.3d 1145 . [¶25] Pushard argues that (1) the temporal proximity between his report of a HIPAA violation and

2020Sec., Inc., 2007 ME 12 , ¶ 26 & n.7, 915 A.2d 400 , we noted, without resolving, 5 the argument that an employee cannot maintain a WPA claim if that employee is not the “initial reporter,” that is, if the employer has already learned of the unsafe condition or practice from some other source. 12 “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.” Brady, 2015 ME 143, ¶ 37 , 126 A.3d 1145 . [¶25] Pushard argues that (1) the temporal proximity between his report of a HIPAA violation and

2020Id. [¶15] A WPA claim consists of three elements: “(1) [the employee] engaged in activity protected by the WPA; (2) [the employee] experienced an adverse employment action; and (3) a causal connection existed between the protected activity and the adverse employment action.” Id. ¶ 14; see 26 M.R.S. § 833(1).

2020Id. [¶15] A WPA claim consists of three elements: “(1) [the employee] engaged in activity protected by the WPA; (2) [the employee] experienced an adverse employment action; and (3) a causal connection existed between the protected activity and the adverse employment action.” Id. ¶ 14; see 26 M.R.S. § 833(1).

2022Ass’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 .

2022Ass’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 .

2021The court reasoned that this section required the court to interpret whether the CBA was 17 [¶32] In a subsequent decision, Carmichael v. Verso Paper, LLC, the Maine federal district court said, “Because the [WPA section 837] provision specifically require[d] the [c]ourt to interpret the CBA to determine whether the []WPA would diminish or impair rights under the CBA, [the plaintiff’s] []WPA claim [was] preempted.” 679 F. Supp. 2d at 136 . [¶33] In 2019, the Maine federal district court, citing Bishop and Carmichael, characterized section 301 as “necessarily” preempting any WPA claim when the

2021LEXIS 113266 , at *6 (emphasis added); see also Carmichael, 679 F. Supp. 2d at 136 (“[A]ny []WPA claim made by an employee working under a CBA is almost by definition intertwined with an interpretation of the CBA and therefore preempted.”). [¶52] The Bishop line of cases has, in effect, held that section 837 triggers federal preemption in all whistleblower claims made by union workers.

2020Corp., 846 F.2d 103, 110 (1st Cir. 1988) (interpreting federal employment discrimination law and stating that evidence that adverse employment action occurred “soon after” the employee’s known protected activity is circumstantial proof of a causal connection “because it is strongly suggestive of retaliation.”). [¶47] We have previously held that temporal proximity between protected activity and an adverse employment decision may be sufficient for a WPA claim to survive a motion for summary judgment.

2020Corp., 846 F.2d 103, 110 (1st Cir. 1988) (interpreting federal employment discrimination law and stating that evidence that adverse employment action occurred “soon after” the employee’s known protected activity is circumstantial proof of a causal connection “because it is strongly suggestive of retaliation.”). [¶47] We have previously held that temporal proximity between protected activity and an adverse employment decision may be sufficient for a WPA claim to survive a motion for summary judgment.

2019Id. ¶ 8; Rippett v. Bemis, 672 A.2d 82, 86 (Me. 1996); see supra n.2. 7What Waugh truly appears to challenge is Genesis’s evaluation of the information it gathered in its investigation of the call bell incident and its decision to discharge Waugh on that basis—i.e., that Genesis believed the resident’s version of events and not Waugh’s—rather than the substance of the statements that Genesis made about its decision to discharge Waugh.

2019Id. ¶ 8; Rippett v. Bemis, 672 A.2d 82, 86 (Me. 1996); see supra n.2. 7What Waugh truly appears to challenge is Genesis’s evaluation of the information it gathered in its investigation of the call bell incident and its decision to discharge Waugh on that basis—i.e., that Genesis believed the resident’s version of events and not Waugh’s—rather than the substance of the statements that Genesis made about its decision to discharge Waugh.

2018See Homeward Residential, Inc. v. Gregor , 2017 ME 128 , ¶ 9, 165 A.3d 357 (stating that an issue is waived for appeal if it was not timely presented in the trial court); Alexander, Maine Appellate Practice § 402(a) at 311 (5th ed. 2018) ("The Law Court will not reach an issue ... if the issue is raised for the first time on appeal.").

2018See Homeward Residential, Inc. v. Gregor , 2017 ME 128 , ¶ 9, 165 A.3d 357 (stating that an issue is waived for appeal if it was not timely presented in the trial court); Alexander, Maine Appellate Practice § 402(a) at 311 (5th ed. 2018) ("The Law Court will not reach an issue ... if the issue is raised for the first time on appeal.").

2016See Pa. State Police v. Suders, 542 U.S. 129, 148 , 124 S.Ct. 2342 , 159 L.Ed.2d 204 (2004) (“A constructive discharge involves both an employee’s decision to leave and precipitating conduct ....”) (emphasis added); cf. Landrau-Romero, 212 F.3d at 613 . [¶ 18] When proved along with the other elements of a WPA claim, a constructive discharge claim will allow the “discharged” employee the possibility of an award of damages as if she had, in fact, been discharged in violation of the WPA, such as back pay.

2016See Pa. State Police v. Suders, 542 U.S. 129, 148 , 124 S.Ct. 2342 , 159 L.Ed.2d 204 (2004) (“A constructive discharge involves both an employee’s decision to leave and precipitating conduct ....”) (emphasis added); cf. Landrau-Romero, 212 F.3d at 613 . [¶ 18] When proved along with the other elements of a WPA claim, a constructive discharge claim will allow the “discharged” employee the possibility of an award of damages as if she had, in fact, been discharged in violation of the WPA, such as back pay.

2016See Bard, 590 A.2d at 154 ; Levesque, 2012 ME 114, ¶ 8 , 56 A.3d 1227 . [¶ 17] Specifically, when an employee who has resigned claims that an adverse employment action occurred in the form of a constructive discharge, the employee has the additional burden of proving the constructive discharge.

2016See Bard, 590 A.2d at 154 ; Levesque, 2012 ME 114, ¶ 8 , 56 A.3d 1227 . [¶ 17] Specifically, when an employee who has resigned claims that an adverse employment action occurred in the form of a constructive discharge, the employee has the additional burden of proving the constructive discharge.

2015Nov. 1, 2005) (granting summary judgment on a WPA claim because “a reasonable person standing in [the plaintiff’s] shoes would not consider [the complained-of conduct] to be unlawful”); Tripp v. Cole, 425 F.3d 5, 9 (1st Cir. 2005) (affirming summary judgment on a WPA claim where “a reasonable person would not have considered [the defendant’s] request to be” illegal).

2015Nov. 1, 2005) (granting summary judgment on a WPA claim because “a reasonable person standing in [the plaintiff’s] shoes would not consider [the complained-of conduct] to be unlawful”); Tripp v. Cole, 425 F.3d 5, 9 (1st Cir. 2005) (affirming summary judgment on a WPA claim where “a reasonable person would not have considered [the defendant’s] request to be” illegal).

2015See Farrell, 206 F.3d at 286 ; Henderson v. Jantzen, Inc., 719 P.2d 1322, 1324 (Or.

2015See Farrell, 206 F.3d at 286 ; Henderson v. Jantzen, Inc., 719 P.2d 1322, 1324 (Or.

2015See Farrell, 206 F.3d at 286 ; Henderson v. Jantzen, Inc., 719 P.2d 1322, 1324 (Or.

2015See Farrell, 206 F.3d at 286 ; Henderson v. Jantzen, Inc., 719 P.2d 1322, 1324 (Or.

2005See, e.g., id. ¶ 18, 719 A.2d at 515 (failure to recommend an employee for future employment was insufficient to constitute a WPA violation); Nelson v. Univ. of Me., 923 F.Supp. 275, 283 (D.Me.1996) (criticism of a professor and a letter to her personnel file does not constitute a WPA violation); Paquin v. MBNA, 233 F.Supp.2d 58 (D.Me.2002) (failure to grant a reassignment is not an adverse employment action). [¶ 8] Blake also contends, however, that she experienced a hostile work environment, which she argues constitutes an adverse employment action under the second prong of the WPA claim.

2005See, e.g., id. ¶ 18, 719 A.2d at 515 (failure to recommend an employee for future employment was insufficient to constitute a WPA violation); Nelson v. Univ. of Me., 923 F.Supp. 275, 283 (D.Me.1996) (criticism of a professor and a letter to her personnel file does not constitute a WPA violation); Paquin v. MBNA, 233 F.Supp.2d 58 (D.Me.2002) (failure to grant a reassignment is not an adverse employment action). [¶ 8] Blake also contends, however, that she experienced a hostile work environment, which she argues constitutes an adverse employment action under the second prong of the WPA claim.