The opinion
STATE OF MAINE SUPERIOR COURT
HANCOCK, SS. CIVIL ACTION
Docket No. CV-02-23 .
A
se
Ronald Stanley,
Plaintiff
V. Order (Defendant’s Motion
for Summary Judgment)
prey Fad
Hancock County Commissioners,
Defendants
AUG 1 i 2003
Pending before the court is the defendant’s motion for summary judgment on the
complaint, in which the plaintiff alleges that he was wrongfully terminated from
employment because, in doing so, the defendants violated his rights under the
Whistleblower’s Protection Act (WPA), 26 M.R.S.A. § 831 ef seg., and under the Maine
Human Rights Act (MHRA), 5 M.R.S.A. § 4551 et seg. The MHRA claim is not
independent but rather is the conduit for the WPA claim. See 5 M.R.S.A. § 4572(1)(A).
On their motion, the defendants argue that the record on summary judgment does not
generate genuine issues of material fact in support of the WPA and MHRA claims. The
defendants also contend that the plaintiff is not entitled to recover damages for emotional
distress arising from his termination, because the defendants are immunized from liability
for such damages under the Worker’s Compensation Act. The court has reviewed the
parties’ written argument and the other materials they have filed in conjunction with the
motion at bar.!
” As part of their reply to the plaintiff’s opposition to the summary judgment motion, the
defendants filed an “additional statement of material facts in support of motion for
summary judgment.” The rules do not provide for such a submission, see M.R.Civ.P
56(h), perhaps because the motion opponent (here, the plaintiff) has no opportunity to
respond to it. Thus, the court disregards the plaintiff’s “additional statement of material
facts.”
Summary judgment is proper only if the record on summary judgment shows that
there are no genuine issues of material fact and that the movant is entitled to judgment as
a matter of law. See M.R.Civ.P. 56. To survive a motion for a summary judgment, the
opposing party must produce evidence that, if produced at trial, would be sufficient to
resist a motion for a judgment as a matter of law; "[t]he plaintiff must establish a prima
facie case for each element of the cause of action." Rodrigue v. Rodrigue, 1997 ME 99,
78, 694 A.2d 924, 926. "'A fact is material when it has the potential to affect the outcome
of the suit."" Prescott v. State Tax Assessor, 1998 ME 250, ] 5, 721 A.2d 169, 172. If the
evidence favoring the nonmoving party is “merely colorable, or is not significantly
probative, a summary judgment may be granted.” See Green v. Cessna Aircraft Co., 673
A.2d 216, 218 (Me. 1996) (citation and internal punctuation omitted).
The parties argue their positions under the burden-shifting framework adopted
from federal law in DiCentes v. Michaud, 1998 ME 227, 719 A.2d 509. Under that
formula, a WPA claimant establishes a prima facie case by demonstrating that (1) he
engaged in an activity that is protected under the WPA, (2) he suffered an adverse
employment action, and (3) there was a causal connection between the protected activity
and the adverse employment action. The defendant then bears the burden of producing
evidence that the adverse employment action was based on a legitimate, non-
discriminatory reason. Finally, the plaintiff bears the burden of persuasion to show that
the reason offered by the defendant was pretextual. Id.,] 14,719 A.2d at 514.2 For
purposes of this case, an activity protected by the WPA occurs when the claimant-
employee, “acting in good faith. . reports orally or in writing to the employer or a public
body what the employee has reasonable cause to believe is a violation of a law or [state]
tule....” 26 M.R.S.A, § 833(1)(A). The record may also trigger the provisions of
The court also notes that it would be difficult to characterize the defendants’ 20
page, 191 paragraph statement of material facts as “short, and concise. ...” See
M.R.Civ.P. 56(h). Although there are many facts that are material to the motion at bar,
the amount of duplication within the defendant’s statement of material fact has made it
much longer than necessary,
* Although DiCentes did not get past the burdens associated with the prima facie case, the
Law Court has made clear that the remainder of the burden-shiftin g approach rooted in
McDonnell Douglas v. Green, 411 U.S. 792 (1973) applies to claims brought under
Maine’s WPA. DiCentes, 1998 ME 227, J 14, n.10, 719 A.2d at 514.
sections 833(1)(B) and (C), which are based the employee’s good faith reports of
conditions or practices that place at risk his or another’s health or safety, or the
employee’s good faith refusal to carry out a directive that would expose him or another to
a condition that would result in serious bodily injury or death, after a correction of the
condition has been sought.* The WPA protections are triggered only if the employee first
brings the alleged violation to an employment supervisor, and the employer has a
reasonable opportunity to correct the violation. Id., § 833(b).
The core of the plaintiff’s claim is that the defendants subjected him to an adverse
employment action (namely, termination) at least in part because he had complained to
his supervisor, Perley Urquhart, that neither he (the plaintiff) nor several third parties
were authorized or competent to perform certain electrical work at a county facility and
because he declined to perform certain tasks that he claims were assigned to him. The
defendant argues here that the plaintiff’s WPA claim fails as a matter of law because the
evidence is insufficient to support an argument that he engaged in an activity protected
under that law and that there is insufficient evidence that the adverse employment action
was caused by any such conduct.
When the record is viewed in the light most favorable to the plaintiff, it reveals
the following factual contentions.
Until his termination on March 13, 2001, the plaintiff was the maintenance
supervisor for Hancock County building facilities. Defendant’s Statement of Material
Fact (DSMF) { 56. His supervisor was Perley Urquhart, who was the county’s facilities
director. DSMF 455. In that capacity, Urquhart had the responsibility to recommend the
termination of any employee who he felt was not performing adequately. DSMF { 59.4
*In light of the reasons for the court’s order on the motion at bar, there is no need to
examine whether the present record generates a factual argument that all three of these
forms of protected activities are implicated in this case.
* The plaintiff disputed this — and a number of other statements of material fact submitted
by the defendant — on the ground that although the proposed statement correctly reflects
the contents of the record, “the Judge is free to completely disregard this self-serving
statement, as it is not from a disinterested witness.” The plaintiff has invoked this basis,
without more, for denying such assertions as, “Bickford stamped that memo on February
23° and forwarded copies to the Commissioners,” see POSMF { 6, and “Stanley did not
deny many of the things set forth in Urquhart’s memos,” see POSMF { 99.
In May and August 2000, Urquhart wrote two memoranda that were critical of the
plaintiffs performance of his work duties. DSMF { 68-71. In those reports, Urquhart
found fault with the plaintiff’s level of productivity, his use of time and his hostile
attitude toward Urquhart himself. See exhibits A and B attached to DSMF. In October
2000, the plaintiff filed a grievance and requested that the May and August reports be
The proffered basis for this approach is the following passage:
In doing so [analyzing the record on summary judgment], however, the
court must draw all favorable inferences in favor of the nonmoving party, and it
may not make credibility determinations or weigh the evidence. . . .’ Credibility
determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.”. . .Thus,
although the court should review the record as a whole, it must disregard all
evidence favorable to the moving party that the jury is not required to believe
....That is, the court should give credence to the evidence favoring the
nonmovant as well as that ‘evidence supporting the moving party that is
uncontradicted and unimpeached, at least to the extent that that evidence comes
from disinterested witnesses.’”
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-51, 147 L.Ed.2d 105,
122 (2000) (citations omitted).
Maine’s rules on summary judgment require that if a supporting statement is
material fact is denied, then that denial must be supported by a record citation.
M.R.Civ.P. 56(h)(2). Maine caselaw ratifies this requirement. See, e.g., Levine v. R.B.K.
Caly Corp., 2001 ME 77, [ 6, 770 A.2d 653, 655-56. Thus, here, where the plaintiff’ s
denials of the defendant’s statements of material fact are not supported by a record
reference, then the defendant’s assertions must be treated as admitted. The court
recognizes the concept that a factfinder is rarely obligated to accept a witness’ testimony
as truthful, regardless of whether that witness is interested or disinterested. However, if
this approach were integrated into the summary judgment motion practice, then the
motion’s opponent could defeat the motion simply by noting that a factfinder might
choose to reject the testimony of the witness who is the source of the moving party’s
statement of material fact. In Maine, summary judgment motion practice is more
rigorous.
Further, an opponent to a summary judgment motion retains recourse on this
issue, because in support of a specific denial, the opponent has full opportunity to draw
the court’s attention to those specific parts of the record that demonstrate, directly or
inferentially, that the movant’s statement of material fact is subject to genuine dispute.
For example, despite a defendant-employer’s articulation of a lawful explanation for an
adverse employment action, a plaintiff-employee may deny that assertion and support the
denial with specific facts, such as temporal proximity between the employee’s protected
conduct and the employment action. See DiCentes v. Michaud, 1998 ME 227, F 16, 719
A.2d 509, 514-15. Thus, when the credibility of a witness is in issue, an opposing party
has both the opportunity and obligation to challenge that witness’s statements on the
basis of specific record references.
expunged from his personnel file. DSMF {J 74-75. After meeting with Urquhart and the
plaintiff, the defendants found that the information in Urquhart’s reports was
“appropriate” and “factual,” and the defendants denied the plaintiff’s grievance. DSMF
qi 4, 78-79.
In January 2001, Urquhart wrote a report to the defendants, recommending that
they discharge the plaintiff from employment. DSMF ] 86. In that report, Urquhart
wrote that the plaintiff was “unable and/or unwilling to make a successful change to his
new position within the Maintenance Department. ...” See exhibit E to DSMF. Among
other criticisms, Urquhart reported that “[t]here are many tasks that he will not perform.”
Id. Urquhart mentioned several specific examples that involved carpentry and painting --
although not electrical work, but also noted, “There are many other situations in which he
continues on this course of failure to comply with directions or to complete work orders.”
Id. Urquhart delivered that written recommendation to the county commissioners on
February 23, 2001. DSMF { 5.
The defendants considered Urquhart’s letter at its March 13, 2001, meeting.
DSMF 7 9. Both Urquhart and the plaintiff were present at and participated in the
meeting. See, e.g., DSMF J 40. Urquhart first covered the issues that he had raised in his
January report. DSMF {J 37-38. In his memorandum and in his comments at the March
13 meeting, Urquhart did not specifically refer to any incidents, either specifically or
generally, when the plaintiff refused to perform electrical work. DSMF J 39. However,
one of the broad complaints expressed by Urquhart was the plaintiff’s unwillingness to
do some tasks that were assigned to him. Plaintiff’s Opposing Statement of Material Fact
(POSMF) { 39. After Urquhart made his presentation to the defendants, the plaintiff told
the defendants that Urquhart had asked him to do electrical work that he was not licensed
to perform. DSMF { 11; POSMF J 10-11. The plaintiff showed the defendants several
work orders for which the plaintiff was responsible. POSMF J 43-44. Urquhart then told
the defendants that in February 2001 (after he had written the memorandum
recommending the plaintiff's termination), he had asked the plaintiff to rewire some
lights, believing that the plaintiff was authorized to do that work under Urquhart’s own
electrician’s license. DSMF {J 47-48. This was not true, and the plaintiff was not given
an Opportunity to challenge this comment. POSMF { 10.° The defendants then voted
unanimously to terminate the plaintiff’s employment. DSMF f 13, 52.
One of the central issues in this case, as the parties have framed the issues, is
whether the defendants’ decision to terminate the plaintiff’s employment was motivated
in part by the plaintiff’ s alleged whistleblower conduct (or, putting it conversely, whether
the plaintiff’s protected conduct was a cause of the termination decision). On this issue,
the defendants have included the following assertion in their statement of material fact:
“Based on the comments of both Stanley and Urquhart, the memo from Urquhart written
more than a month before the flood light work, and the work forms that didn’t even
mention Stanley, the Commissioners thought that Stanley’s statements regarding
electrical work was [sic] irrelevant and had nothing to do with the recommendation that
Stanley’s employment be terminated,” DSMF { 49. The record reference supporting this
assertion is to an affidavit filed by one of the commissioners who voted on Urquhart’s
recommendation. In his opposing rule 56 statement, the plaintiff denied this assertion,
stating, “Plaintiff admits that this is what is contained in Mr. Brown’s affidavit, but notes
that, to the extent this statement reflects the affiant’s state of mind or opinion, the J udge
is free to completely disregard this self-serving statement, as it is not from a disinterested
witness.” POSMF 49. If in fact the defendant’s assertion has not been properly
controverted, then it is deemed admitted. In that event, the record on summary judgment
would foreclose a genuine factual contention that the plaintiff’s refusal to perform certain
electrical work was a cause of the defendant’s decision to terminate his employment.
The resulting question is whether the plaintiff's denial is adequate to place the
defendants’ assertion in issue. From an historical perspective, the reasons for a decision
are factual in nature; they are no lon ger present opinions, but rather they are states of
mind that either did or did not exist in the past. Thus, the assertion that the
Commissioners had a particular “thought” is an assertion of historical fact: the
Commissioners either held that belief, or they did not. Here, the basis for the plaintiff’ s
denial of this assertion is merely that a factfinder might choose not to accept that
* In their statement of material fact, the defendants assert that Urquhart told them that in
fact his license did not authorize the plaintiff to rewire the lights and that his earlier
contrary belief was incorrect. DSMF 4 48. For purposes of this motion, however, the
court construes the record favorably to the plaintiff.
evidence as truthful; the plaintiff has not provided a record reference or affirmative
factual basis to support this denial. For the reasons discussed above, see note 3, the court
concludes that this is not a sufficient basis to controvert a statement of material fact.
The court notes that several other assertions of material fact in the defendants’
submission address the reasons for the defendants’ decision. For example, in paragraph
13 of the defendant’s statement of material fact and the plaintiff's opposing statement of
material fact, the defendant claims that they found the issue of electrical work to be
irrelevant. The plaintiff disputes this assertion, but his record reference fails to
substantiate that challenge: in the portion of his affidavit cited in his response, he states
only that he told the defendants that he was not permitted to perform the electrical work,
that Urquhart told the defendants that he could do so, and that the defendants voted to
terminate him. In light of the direct statement in paragraph 49 — deemed admitted by the
plaintiff ~ that the electrical job issue was not relevant to the employment decision, the
plaintiff’s response fails to create any factual issue regarding the reasons for that action. °
Further, paragraph 53 of the defendants’ rule 56 statement also yields to the assertion
regarding the reasons for the defendants’ decision as stated directly in paragraph 49,
because the plaintiff addresses only the nature of his presentation to the commissioners at
the March meeting.
Consequently, the record on summary judgment establishes that any prior reports
made by the plaintiff regardin g the lawfulness of policies and practices in the
maintenance of county buildings were not a cause of the defendants’ decision to
terminate his employment. The defendants are therefore entitled to summary judgment.
The entry shall be:
For the foregoing reasons, the defendants’ motion for summary judgment is
granted. Summary judgment is entered for the defendants. The defendants are awarded
their costs of court.
FILED &
Dated: August 1, 2003 ENTERED hi vw
Justice, Cl Supe ior Court
AUG 06 2003
SUPERIOR c URT
HANCOCK COUNTY