Mank v. MSAD 15

C STATE OF MAINE

umbertand, ss, Clefk's Office

STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss. SEP ~ 4 2015 CIVIL ACTION

DOCKETNO. CV-14-320

RECEIVED

NIELSMANK,

Plaintiff

v. ORDER

MSAD 15,

Defendant

Before the court is defendant M.S.A.D. 15's motion for summary judgment.

Summary judgment should be granted if there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law. In considering a motion for

summary judgment, the court is required to consider only the portions of the record referred to

and the material facts set forth in the parties' Rule 56(h) statements. E.g., Johnson v. McNeil,

2002 ME 99 ~ 8, 800 A.2d 702. The facts must be considered in the light most favorable to the

non-moving party. Id. Thus, for purposes of summary judgment, any factual disputes must be

resolved against the movant. Nevertheless, when the facts offered by a party in opposition to

summary judgment would not, if offered at trial, be sufficient to withstand a motion for judgment

as a matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME 99 ~

8, 694 A.2d 924.

In this case plaintiff Niels Mank has brought a one-count complaint alleging that his

position as Manager of Transportation and Facilities at MSAD 15 was eliminated and his

contract was not renewed in violation of the Maine Whistle blowers Protection Act (MWP A), 26

(

M.R.S. § 833, which provides that an employer may not discharge or otherwise discriminate

against an employee because

The 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 rule adopted under the

laws of this State ....

26 M.R.S. § 833(1)(A).

In order to set forth a prima facie case under the MWPA, a plaintiff must show (1) that he

engaged in activity protected by the Act, (2) that he experienced an adverse employment action,

and (3) that there was a causal connection between the protected activity and the adverse

employment action. Hickson v. Vescom Corp., 2014 ME 27 ~ 17, 87 A.3d 704. In its motion for

summary judgment MSAD 15 argues that the summary judgment record does not demonstrate

that there are disputed issues for trial on ( 1) whether the reports made by Mank constituted

protected activity and (2) whether there was any causal connection between the reports he made

and the elimination of his position.

1. Protected Activity

Mank alleges that he reported to his superiors at MSAD 15 that he was being subjected to

hazing and harassment by certain of his subordinates, in violation of 20-A M.R.S. § 6553(2),

which provides as follows:

The school board shall adopt a policy which establishes that

"injurious hazing," either on or off school property, by any student,

staff member, group or organization affiliated with the public

school is prohibited.

"Injurious hazing" is defined as

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any action or situation, including harassing behavior, that

recklessly or intentionally endangers the mental or physical health

of any school personnel or a student enrolled in a public school.

20-A M.R.S. § 6553(1)(A).

This case may constitute a stretch of both the concept of hazing and the Whistleblowers

Protection statute.' However, Mank has offered evidence that in August and September of 2012

he reported to his superiors that he had been bullied, intimidated, hazed, defamed, and harassed

by one of his subordinates, Margaret Litrocapes (the local union president). In his report Mank

specifically invoked the anti-hazing statute and policy under 20-A M.R.S. § 6553. He reported,

among other things, that Litrocapes had researched his private life activities in order to publicly

humiliate him, that she continually attacked his character and credibility, and that she had

defamed his character in the community. He reported that she was intentionally inflicting

emotional pain on him and he had sought medical treatment for stress as a result.

Contrary to MSAD IS's argument, protected activity under the MWPA is not limited to

reports of alleged violations of law or rules by the employer. Reports of violations by other

employees may still be protected. See Hickson v. Vescom Corp., 2014 ME 27 ~ 20.

MSAD 15 also argues that all of Litrocapes' s alleged hazing would constitute protected

union activity under the Municipal Public Employees Labor Relations Law. There is very little

doubt that a lot of the alleged conduct complained of by Mank - most notably Litrocapes' s

criticism of Mank' s managerial performance and her solicitation of negative feedback from other

employees - falls within the scope of rights protected by 26 M.R.S. §§ 963 and 964(1)(A).

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It is not clear that the legislative requirement in 20-A M.R.S. § 6553 that schools adopt a policy against

hazing was intended to cover behavior by school employees directed at one of their supervisors. MSAD

15 does not, however, raise this argument, and the plain words of the statute appear to cover hazing

directed at school personnel regardless of the source of the hazing. MSAD 15 also does not contest that

where the Legislature has mandated an anti-hazing policy, a violation of that policy would constitute the

violation of a "rule adopted under the laws of this State" within the meaning of 26 M.R.S. § 833(1 )(A).

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However, the court cannot find on this record that it is undisputed that all of the alleged hazing

which Mank reported would have fallen within the scope of protected union activity. 2 Viewed in

the light most favorable to Mank, there is a disputed issue for trial as to whether some of

Litrocapes' s alleged conduct crossed the line and became vindictive harassment that violated

MSAD 15 's anti-hazing policy - notwithstanding her right to engage in union activity under 26

M.R.S. § 963 and the prohibition in § 964(1)(A) on any interference by the school district with

her right to engage in protected union activity.

Even if all of Litrocapes's conduct was m fact protected umon activity, Mank's

complaints about that conduct would fall within the MWP A if Mank had "reasonable cause to

believe" that Litrocapes's conduct constituted injurious hazing. Tripp v. Cole, 425 F.3d 5, 9 (1st

Cir. 2005) ("Under the MWP A, the complained-of conduct need not actually be illegal, but the

employee must 'prove that a reasonable person might have believed' that it was.") (emphasis in

original). There is a disputed issue for trial on this issue.

MSAD 15 also contends that because Mank was Litrocapes's supervisor, he had the

responsibility to manage and discipline her and his admitted inability to perform that function

cannot constitute the basis of a MWP A claim. The problem with this argument is that Mank has

offered evidence that the District repeatedly failed to back him in his attempts to manage,

supervise, and discipline Litrocapes. The superintendent acknowledged that none of the union

grievances that were brought against Mank were justified. Moreover, it appears to have been the

2

MSAD argues that some of the evidence that Mank has proffered with respect to the alleged hazing by

Litrocapes is derived from an unsworn attachment to unsworn answers to interrogatories. However, Mank

signed a declaration that his answers to interrogatories were "under penalty ofpeijury," which the court

finds sufficient under 28 U.S.C. § 1746. Moreover, the attachment to his interrogatories was declared

(under penalty of perjury) to be a "summary of the harassment and hazing" he experienced. Under these

circumstances, the court is not prepared to disregard the summary in question.

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superintendent's responsibility - not Mank's - to enforce the anti-hazing policy. As a result,

there are disputed issues of fact on this issue as well.

2. Causal Connection

MSAD 15 contends that Mank cannot demonstrate the existence of a causal connection

between his reports of hazing and the District's adverse employment decision. Although it is true

that Mank's specific hazing complaints occurred August and September 2012 and the decision to

eliminate his job and terminate his contract occurred in February 2013, Mank sent an email to his

supervisor in late January that - although it did not expressly mention "hazing" and also

discussed "huge work load expectations" that Mank could not meet - pretty clearly referred to

the complaints that Mank had previously made about personal attacks and public humiliation at

the hands of "Margaret and the Union." Construed in the light most favorable to Mank, the

January email was a reiteration of his hazing complaint.

There is also evidence that the email was forwarded to the Superintendent shortly before

the latter made the decision to eliminate Mank's job and not to renew his contract. Under

Fuhrmann v. Staples the Office Superstore East Inc., 2012 ME 135 ~ 16, 58 A.3d 1083, temporal

proximity is sufficient to demonstrate the existence of a prima facie causal connection for

purposes of defeating a motion for summary judgment.

The entry shall be:

Defendant's motion for summary judgment is denied. The clerk is directed to incorporate

this order in the docket by reference pursuant to Rule 79(a).

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Dated: Septemberfl, 2015

Thomas D. Warren

Justice, Superior Court

6

MICHAEL BUESCHER, ESQ.

DRUMMOND WOODSUM

84 MARGINAL WAY, SUITE 600

PORTLAND, ME. 04101

MELISSA HEWEY, ESQ.

DRUMMOND WOODSUM

84 MARGINAL WAY, SUITE 600

PORTLAND,ME.04101

GUY D. LORANGER, ESQ.

ONE GRANNY SMITH COURT, SUITE 3

OLD ORCHARD BEACH, ME. 04064