JOHN A. WOODCOCK, JR., Chief Judge.
The Court concludes that a former employee of a mental health services company produced sufficient evidence to generate genuine issues of material fact as to whether the Defendant violated the Maine Whistleblower Protection Act (MWPA) by taking an adverse employment action against her in retaliation for her protected activity. Accordingly, the Court denies the Defendant's motion for summary judgment.
On June 9, 2009, Ellen Gammon filed a complaint against her former employer, Crisis and Counseling Centers, Inc. (Crisis & Counseling), alleging a violation of the MWPA, 26 M.R.S. § 831 et. seq.
The parties raised a number of issues regarding the facts the Court should consider for summary judgment purposes.
Ms. Gammon requests that the Court strike a number of paragraphs in Crisis & Counseling's statement of material facts on the ground that they contain more than one alleged fact in violation of the District's Local Rule 56(b). Pl.'s Resp. to Def.'s Statement of Material Facts ¶¶ 1, 10, 11, 14-16, 23, 24, 27, 28, 31-35, 38, 48 (Docket # 39) (PRDSMF). The Court has previously explained that Local Rule 56(b) does not require that each paragraph include only a single assertion. D. ME. LOC. R. 56(b); Randall v. Potter, 366 F.Supp.2d 120, 122 (D.Me.2005); Capozza Tile Co., Inc. v. Joy, 223 F.Supp.2d 307, 313 n. 2 (D.Me.2002). Furthermore, "conducting an intensive line-by-line review of [the alleged] violations of Local Rule 56 would do little to assist the court in achieving the goals of this local rule or resolving the merits of the pending [motion]." Burchill v. Unum Life Ins. Co. of Am., 327 F.Supp.2d 41, 43 (D.Me.2004). The Court denies Ms. Gammon's request to strike.
Crisis & Counseling argues that the Court cannot consider any of Ms. Gammon's statements of fact that rely on her post-deposition affidavit. Def.'s Reply at 1. It argues that the affidavit "contradicts her own deposition testimony" and "attempts to create the appearance of triable issues of fact." Id.
Crisis & Counseling is correct that "[w]hen an interested witness has given
Crisis & Counseling's first request to strike on this ground responds to paragraph twenty-one of Ms. Gammon's Statement of Additional Material Facts. DRPSAMF ¶ 21; Pl.'s Statement of Additional Material Facts ¶ 21 (Docket # 40) (PSAMF). Paragraph twenty-one asserts that Ms. Gammon went online to confirm that Crisis & Counseling's billing practices were illegal and cites websites she says confirmed her belief. PSAMF ¶ 21. Consistent with this statement, Ms. Gammon testified in her deposition that she went online at the office and found something to suggest that Crisis & Counseling's billing practices violated licensing rules. Def. Crisis & Counseling Center's Statement of Material Fact in Support of its Mot. for Summ. J. (Docket # 29) (DSMF) at Attach. 1 (Gammon Dep.) at 169:16-25. However, Ms. Gammon also stated that she could not remember where she found this information. Gammon Dep. at 170:2-5. In her affidavit, Ms. Gammon mentions specific websites she says confirmed that the Maine law and regulation required transportation to be billed separately from assessments. Aff. of Ellen Gammon ¶ 5 (Docket # 41) (Gammon Aff.). She thus recalled in her affidavit what she could not recall during her deposition. To fully comply with Colantuoni, Ms. Gammon should have explained why her memory was refreshed, but it seems apparent that she later located the government websites she could not immediately recall at the deposition. Since the inference is obvious and since the import of the statement is not the truth of the content of the website, but whether Ms. Gammon had a reason for believing Crisis & Counseling was acting inappropriately, paragraph twenty-one amplifies her deposition testimony. The Court will not disregard it. The Court denies Crisis & Counseling's request to strike paragraph twenty-one.
Crisis & Counseling also requests to strike Ms. Gammon's statement that she complained about billing practices to her team leader, Christy Labonte. DRPSAMF ¶ 24; PSAMF ¶ 24. Most of
Next, Crisis & Counseling seeks to strike Ms. Gammon's statement that she complained about billing for travel time within weeks of her termination. DRPSAMF ¶ 25; PSAMF ¶ 25. Again, her affidavit is more specific than her deposition testimony. Crisis & Counseling cites deposition testimony in which Ms. Gammon says that she could not recall exactly when she spoke with her supervisor, Don Williams, or her team leader, Christy Labonte. DSMF ¶¶ 39, 47 (citing Gammon Dep. 169:4-13, 170:11-14). In her affidavit, however, she states that she "made the above complaints about billing for travel time up to within weeks of my termination." Gammon Aff. ¶ 5. Ms. Gammon's inability at her deposition to recall the timing of two specific conversations does not directly contradict her later general statement that she complained about billing for travel time within weeks of her termination.
Crisis & Counseling also seeks to strike Ms. Gammon's statement that, based on her training and experience, she understood it to be fraud to charge for an assessment when a client refused to be assessed and an assessment was not done. DRPSAMF ¶ 27; PSAMF ¶ 27. Ms. Gammon said both in her deposition and in her affidavit that she understood this billing practice to be fraud. Gammon Dep. 171:7-13; Gammon Aff. ¶ 6. Crisis & Counseling fails to direct the Court to any contradiction between that deposition testimony and her affidavit. The Court denies Crisis & Counseling's request to strike paragraph twenty-seven of Ms. Gammon's statement of additional material facts.
Crisis & Counseling objects to Ms. Gammon's statement that she complained about the company charging for crisis follow-up when no crisis follow-up occurred. DRPSAMF ¶ 32; PSAMF ¶ 32. Again, Crisis & Counseling fails to direct the Court to any contradiction. Instead, it cites testimony that Ms. Gammon did not know what was on the final bills that Crisis & Counseling sent out to its clients, attempting to undercut Ms. Gammon's foundation
Crisis & Counseling also seeks to strike Ms. Gammon's statement that she complained to Don Williams about the company's failure to follow a certain safety practice within the last six months of her employment. DRPSAMF ¶ 41; PSAMF ¶ 41. Crisis & Counseling cites nothing in the record to support that there is a contradiction between the deposition testimony and affidavit. The Court denies this request to strike.
Finally, Crisis & Counseling seeks to strike Ms. Gammon's statement that during the monthly group supervision meetings up to the time of her termination, Ms. Gammon complained to her team leaders, including Mr. Williams, about the billing and safety issues. DRPSAMF ¶ 47; PSAMF ¶ 47. Specifically, Crisis & Counseling objects to the assertion that she made such a complaint "up to the time of her termination". DRPSAMF ¶ 47. It cites a great deal of deposition testimony in which Ms. Gammon is unable to remember the dates of her specific complaints. See DSMF ¶¶ 47, 48. At the same time, Crisis & Counseling acknowledges that Ms. Gammon stated in her deposition that she made complaints within the last six months of her employment. DRPSAMF ¶¶ 47. Stating that something occurred within one month does not contradict with stating that it occurred within six months. The Court denies Crisis & Counseling's request to strike paragraph forty-seven of Ms. Gammon's statement of additional material facts.
On April 1, 2010, Crisis & Counseling served Ms. Gammon with a set of seventeen requests for admission. Decl. of Sally Morris in Support of Crisis & Counseling Centers. Inc.'s Mot. for Summ. J. (Docket # 32) (Morris Decl.) at Ex. 1, Def.'s First Set of Requests for Admission (Requests for Admission). According to Attorney Sally Morris' Declaration, Ms. Gammon had failed to respond to the requests for admission as of late July 2010. Morris Decl. ¶ 4. Specifically, citing the unanswered Requests for Admission, Crisis & Counseling says that Ms. Gammon admitted:
Def.'s Reply at 3. In its Reply, Crisis & Counseling argues that by failing to respond to the Requests for Admission, Ms. Gammon admitted she voluntarily left employment and in effect that she has no case. Def.'s Reply at 2-3.
Because of the way Crisis & Counseling raised this question, the Court can only surmise Ms. Gammon's response. In its motion for summary judgment, Crisis & Counseling posited the unanswered Requests for Admission as authority for some of its Statements of Material Fact. DSMF ¶¶ 28-31. In her response, Ms. Gammon treated the Statements of Material Fact based on the unanswered Requests for Admission as if the facts were not deemed admitted, denying some, qualifying her response to others, and admitting some. PRDSMF ¶¶ 28-31. But Crisis & Counseling did not argue the preclusive effect of the admissions until its Reply, and as there is no provision for a sur-reply, Ms. Gammon has never been heard as to why she failed to respond to the Requests for Admission or why the Court should not treat the facts as admitted.
A careful review, however, leads to the conclusion that the Re quests for Admission, even if deemed admitted, do not change the outcome of this motion. First, the breadth of the admissions that Crisis & Counseling would like to apply to Ms. Gammon substantially exceeds the facts in its Statement of Material Facts based on the Requests for Admission. Thus, for example, Crisis & Counseling says that Ms. Gammon has admitted that "[n]o Supervisor or Administrator at Crisis & Counseling told [Ms.] Gammon, at any time, that she was being targeted for termination because she was a trouble maker." Def.'s Reply at 3. But even though these statements appear in its Requests for Admission, they do not appear in its Statements of Material Fact. The Court will not consider discovery responses that have not been properly placed before the Court in accordance with Local Rule 56(c). D.ME. LOC. R. 56(c).
Crisis & Counseling has placed just a few Statements of Material Fact before the Court that are based on its unanswered Requests for Admission:
DSMF ¶¶ 28-31 (citations omitted). In her response, Ms. Gammon attempted to deny paragraph 28 and a portion of paragraph 31 and effectively admitted paragraphs 29, 30, and the rest of paragraph 31.
Requests for Admission ¶ 5. Since Request for Admission 5 does not directly support Crisis & Counseling's contention that Ms. Gammon "voluntarily left work" on June 12, 2007, Ms. Gammon was free to deny that aspect of Statement of Material Fact paragraph 28.
The admissions properly before the Court for purposes of this motion do not change the result because regardless of the admissions, Ms. Gammon has placed sufficient facts before the Court to generate genuine issues of material fact. Ms. Gammon says that when she met with Mr. Williams on June 12, 2007, he placed her on a corrective action plan, which consisted of indefinite probation and prohibited her from complaining to any team leaders and from asking questions or she would be fired. Pl.'s Resp. at 7. Ms. Gammon says that because she became upset, Mr. Williams "told her to go home while he would try to figure out what was going on." Id. at 8. She claims that when she called him the next day, Mr. Williams informed her that "the action plan was off the table. Management wanted Gammon gone, and the company would be offering her a severance package." Id.
Ms. Gammon has effectively denied that she voluntarily left work on June 12, 2007 and she says Crisis & Counseling fired her the very next day. Even if she is held to admit that she cleaned out her locker and left the workplace on June 12 with all her belongings without any intention of returning, whether Crisis & Counseling fired her on June 13 remains a question of fact, which the Court must view in the light most favorable to Ms. Gammon.
Crisis & Counseling is a non-profit agency that provides counseling services, crisis interventions, substance abuse counseling, and related educational services for clients and families at its residential and outpatient crisis facilities. DSMF ¶ 1; PRDSMF ¶ 1. Ms. Gammon worked for Crisis & Counseling as a crisis worker from November 1998 until June 2007. PSAMF ¶ 3; DRPSAMF ¶ 3. In 2004, Ms. Gammon began to work in Crisis & Counseling's mobile crisis unit. DSMF ¶ 14;
The mobile crisis unit provides twenty-four-hour telephone and walk-in counseling services as well as off-site mental health assessments and evaluations, which often occur in the client's home. DSMF ¶ 3; PRDSMF ¶ 3. Off-site and in-home assessments are necessary to fulfill Crisis & Counseling's objective to provide the least intrusive means possible to de-escalate a client in crisis. DSAMF ¶ 3; PRDSMF ¶ 3. Clients receive services when they are experiencing mental health crises, during which time many clients are also abusing substances. DSMF ¶ 4; PRDSMF ¶ 4. Because the needs of its clients change frequently, each presentation to Crisis & Counseling requires an "individualized and clinical assessment of how to serve [the] client." DSMF ¶ 5; PRDSMF ¶ 5. Some clients with very serious or violent histories may present mildly for a particular assessment and may need only minor help accessing services in the community. DSMF ¶ 6; PRDSMF ¶ 6. Before sending workers to an in-home assessment, crisis workers conduct a verbal screening of the client to determine whether the client has consumed any substances, has any weapons in the home, or has the potential for violence, as well as other safety factors. DSMF ¶ 8; PRDSMF ¶ 8.
Pursuant to its policy on "Individual Protocols," Crisis & Counseling uses "Green Sheets" as a repository of information about the individual or special needs of clients. DSMF ¶ 10; PRDSMF ¶ 10. Information covered in Green Sheets may include contact parameters for high users of crisis services and clients with special or acute needs, diagnostic information, or actions that may make a crisis worse for a particular client. DSMF ¶ 10; PRDSMF ¶ 10. Green Sheets are not meant to be irrevocable rules for contact with a particular client, and they are to be reviewed regularly to assess their effectiveness and to consider the need for modifications given the circumstances of the particular client. DSMF ¶ 11; PRDSMF ¶ 11.
Ms. Gammon's job as a crisis worker required her to evaluate clients, speak to them about their needs, and formulate a plan to best meet those needs. PSAMF ¶ 7; DRPSAMF ¶ 7. Like other crisis workers, she was required to consult with Team Leaders or Clinical Supervisors to determine the best way to assess a client. DSMF ¶ 12; PRDSMF ¶ 12. She was also responsible for keeping an accurate account of her time spent with the individuals in crisis and filling out billing statements. PSAMF ¶ 5; DRPSAMF ¶ 5; PSAMF ¶ 9; DRPSAMF ¶ 9.
During her employment at Crisis & Counseling, Ms. Gammon complained about certain Crisis & Counseling billing practices. Crisis & Counseling required
Ms. Gammon was also required to write assessments for billing purposes even when clients refused assessments. PSAMF ¶ 26. She thought this too amounted to fraud. PSAMF ¶ 27
Ms. Gammon further complained about perceived safety concerns at Crisis & Counseling. PSAMF ¶ 33. She thought that Crisis & Counseling was not following the management protocols it had put in place to keep workers safe. PSAMF ¶ 34. Ms. Gammon also complained to Ms. Karczewski that safety issues listed in Green Sheets were ignored. PSAMF ¶¶ 37-38. Crisis & Counseling had a flashing light outside of its office that could be used to warn individuals of potentially dangerous situations in the office. PSAMF ¶ 39; DRPSAMF ¶ 39. Ms. Gammon complained to Mr. Williams within the last six months of her employment that Crisis & Counseling failed to follow the flashing light safety practice. PSAMF ¶¶ 40-41. Mr. Williams responded that management did not want to hear about such complaints. PSAMF ¶¶ 42-43. Lastly, Ms. Gammon complained to Mr. Williams and
Every year from 2001 to 2006, Ms. Gammon's evaluations counseled her to improve in one or more of the following areas: teamwork, presentation, manner of expressing her opinions, interpersonal relationships with co-workers, and attitude. DSMF ¶ 15; PRDSMF ¶ 15.
In June 2007, Ms. Gammon printed from work computers a newspaper article involving a couple who went out to dinner and were violently hijacked. DSMF ¶ 21; PRDSMF ¶ 21. She distributed the article among triage workers and discussed the events in the article at work. DSMF ¶ 21; PRDSMF ¶ 21. Later that month, Ms. Gammon was involved in a confrontation with a co-worker. DSMF ¶ 22; PRDSMF ¶ 22. The co-worker got angry and yelled at Ms. Gammon who "just stepped back as she hadn't said anything" to the co-worker. PSAMF ¶ 59.
During a regularly scheduled supervision meeting on June 12, 2007, Ms. Gammon's supervisor, Donald Williams, explained to Ms. Gammon that she would be placed on a corrective action plan and probation. DSMF ¶ 26; PRDSMF ¶ 26. Ms. Gammon disagreed with the conditions of the probation and objected to the corrective action plan. DSMF ¶ 27; PRDSMF ¶ 27. She testified that the conditions of the probation prohibited her from asking questions or making complaints about billing, client care, or safety. PRDSMF ¶ 27. Ms. Gammon was given no information about what she had done wrong. PSAMF ¶ 68. After leaving work that day, she
During a phone call the next day, Mr. Williams told Ms. Gammon that she was being put on the corrective action plan because of her alleged negativity. PSAMF ¶ 71; DRPSAMF ¶ 71.
On June 18, 2007, Ms. Gammon met with Mr. Moore and Ms. Karczewski. DSMF ¶ 32; PRDSMF ¶ 32; PSAMF ¶ 75; DRPSAMF ¶ 75.
Sandy Rudman called Ms. Gammon on June 18, 2007. PSAMF ¶ 86; DRPSAMF ¶ 86.
On June 20, 2007, Sandy Rudman, the Director of Operations, with Ms. Karczewski and Mr. Moore present, again called Ms. Gammon. DSMF ¶ 35; PRDSMF ¶ 35; PSAMF ¶ 77; DRPSAMF ¶ 77. The parties again reviewed the severance package. PSAMF ¶ 77; DRPSAMF ¶ 77. Ms. Gammon admitted to Ms. Rudman that she had told the co-worker with whom she had had a confrontation: "He was lucky I did not rip his face off." DSMF ¶ 35; PRDSMF ¶ 35.
On June 27, 2007, Ms. Tuttle sent a letter to Ms. Gammon informing her that her employment was terminated effective
Crisis & Counseling argues that to establish a prima facie case under the MWPA, Ms. Gammon must show that "(1) she engaged in activity protected by the MWPA; (2) she was the subject of an adverse employment action; and (3) there was a causal link between the protected activity and the adverse employment action." Def.'s Mot. at 9.
Crisis & Counseling argues that Ms. Gammon has failed to establish that she engaged in protected activity. Id. It contends that, for Ms. Gammon to prove that she engaged in protected activity under the MWPA, she must prove:
Id. at 9-10 (citing Tripp v. Cole, 425 F.3d 5, 8 (1st Cir.2005); Higgins v. New Balance Shoe, Inc., 194 F.3d 252, 261 (1st Cir.1999); and 26 M.R.S. § 833(1)(A) and (B)). Crisis & Counseling argues that Ms. Gammon cannot prove she engaged in protected activity because there are no facts to suggest that she "had a reasonable basis to believe that Crisis & Counseling was engaging in conduct that was illegal or created a risk to health and safety," id. at 10, and because she did not act in good faith. Id. at 16.
Turning first to the "reasonable cause to believe" element, Crisis & Counseling asserts that Ms. Gammon had no reasonable cause to believe that a violation of law occurred in connection with Crisis & Counseling's billing practices. Id. Citing Tripp and Testa v. Town of Madison, Docket No. 04-185-B-W, 2005 WL 2365319, 2005 U.S. Dist. LEXIS 44531 (D.Me. September 26, 2005), Crisis & Counseling argues that to satisfy the reasonable cause element, a plaintiff must be able to point to specific behavior that violates a specific law. Id. at 10-11. It argues that Ms. Gammon "cannot point to any specific billing practice or other activity that she reported or complained of that amounted to any known violation of any existing law or billing regulation." Id. at 11. It further argues that Ms. Gammon could not have had a reasonable basis because she was not ultimately responsible for the bills sent out to clients and did not know what was billed. Id. It contends that Ms. Gammon merely claims that she questioned and sought clarification regarding billing, which does not amount to "a report involving specific conduct which would give rise to a legitimate and legally recognized violation in the mind of a reasonable person." Id. at 12.
Crisis & Counseling also argues that Ms. Gammon did not have a reasonable basis to believe that Crisis & Counseling was engaging in conduct that created a risk to health and safety. Id. at 14. First, it contends that Ms. Gammon never complained about the failure to follow Green Sheets. Second it contends that "even if she made such a safety complaint, no reasonable person would have believed that Crisis & Counseling's practices led to any safety risks which were not an inherent part of [Ms.] Gammon's job." Id. Crisis & Counseling argues that Ms. Gammon's claim that ignoring information in Green Sheets created a safety risk reflects a "fundamental misunderstanding of the policy and the process of determining how an assessment should occur." Id. It contends that Green Sheets merely serve as guidelines when working with a client. Id. at 15. It characterizes Green Sheets as one of several tools available "to clinically assess how the client should be handled." Id. Crisis & Counseling argues that "no reasonable person would have believed that a case-by-case determination as to how to best assess a client in crisis would have created an untenable safety risk." Id.
Crisis & Counseling also argues that Ms. Gammon did not engage in protected activity because she cannot establish that she acted in good faith or that she made a report or complaint. Id. at 16. Crisis & Counseling states that "[c]ourts recognize a distinction between `blowing the whistle' and complaining about one's job." Id. at 16 (citing Horton v. Dep't. of Navy, 66 F.3d 279, 282 (Fed.Cir.1995); Willis v. Dep't. of Agric., 141 F.3d 1139, 1143 (Fed. Cir.1998); and Montgomery v. E. Corr. Inst., 377 Md. 615, 835 A.2d 169, 180 (2003)). It argues that the good faith requirement focuses on the reporter's purpose in making the report; the purpose must be to expose a wrongdoing for the benefit of the public or some other third party. Id. at 16-17. It contends that "complaints about practices that were purely internal in nature and not related to the purposes of the whistleblower provisions of the law could not be the basis of an objectively reasonable complaint." Id. (citing Day v. Staples, Inc., 555 F.3d 42, 58 (1st Cir.2009)). Crisis & Counseling says that Ms. Gammon's complaints "at most. . . raised issues regarding Crisis & Counseling's purely internal practices, and not any concerns regarding safety or illegal activities that were outside the scope of the agency's regular practices." Id. (emphasis in original). It characterizes her complaints as simply griping about a difficult profession, "akin to a firefighter who complains that entering a burning building is un safe." Id. at 17-18. Furthermore, Crisis & Counseling notes that Ms. Gammon failed to use the agency's Grievance Policy to make her billing and safety complaints even though she was aware the policy existed and had used it with satisfactory results in the past. Id. at 18-19.
Crisis & Counseling also argues that Ms. Gammon cannot establish that she was subject to an adverse employment action. Id. at 19. It asserts that Ms. Gammon stormed out of work and refused to return after meeting with her supervisors about
Crisis & Counseling next argues that Ms. Gammon cannot establish that she was constructively discharged. Id. at 21-22. It contends that constructive discharge "presents a high evidentiary hurdle" for a plaintiff and requires an objective showing "that she was subjected to arduous and ho stile working conditions that were so intolerable that a reasonable person under her circumstances would have felt compelled to resign." Id. at 21 (citing Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 26 (1st Cir.1997); Anderson, 2010 WL 323530, at *8, 2010 U.S. Dist. LEXIS 4538, at *23-24; King v. Bangor Federal Credit Union, 611 A.2d 80, 82 (Me.1992)).
Crisis & Counseling argues that Ms. Gammon has offered no evidence to meet this standard. According to Crisis & Counseling, at most "she was told `not to ask questions' and was placed on a corrective action plan." Id. at 22. Crisis & Counseling characterizes her problems at the agency as subjective dissatisfaction with a difficult job, which does not amount to constructive discharge. Id. It further argues that her constructive discharge claim is undercut by the "significant periods of time after her alleged protected activity" that she stayed on the job. Id.
Finally, Crisis & Counseling contends that Ms. Gammon cannot establish any causal link between her alleged protected activity and an adverse employment action. Id. It says that to satisfy this element, Ms. Gammon must demonstrate some discriminatory animus on the part of Crisis & Counseling or a temporal relationship between the protected activity and the adverse employment action. Id. at 22-23. It asserts that Ms. Gammon has proffered no evidence of discriminatory animus. Id. at 23. It further argues that Ms. Gammon cannot show any temporal relationship. Observing that her alleged protected activity began years before the alleged adverse employment action, it argues that courts have found spans as short as three months too long to establish a causal connection. Id. at 23-24 (citing Calero-Cerezo v. United States Dep't. of Justice, 355 F.3d 6, 25 (1st Cir.2004)). Crisis & Counseling further argues that even if the temporal proximity were close enough, the larger picture of Ms. Gammon's repeated workplace transgressions "undercuts any claim of causation." Id. at 23 (quoting Wright v. CompUSA, Inc., 352 F.3d 472, 478 (1st Cir.2003)).
Ms. Gammon agrees that to prove a violation of the MWPA, she must prove the three elements cited by Crisis & Counseling. Pl.'s Resp. at 10. However, she argues that triable issues of fact exist as to each element, thus precluding summary judgment.
Ms. Gammon argues that a triable issue exists as to whether she had reasonable cause to believe Crisis & Counseling's billing practices violated a rule or law. Id. She first notes that she disputes the facts cited by Crisis & Counseling as relevant to reasonable cause. Id. at 11. She further contends that her additional statement of material facts "contain[s] evidence from which a reasonable jury may infer that [she] had reasonable cause to believe that the billing practices were a violation of the licensing agreements with the State, illegal, and/or fraudulent." Id.
Ms. Gammon similarly argues that a triable issue exists as to whether she had reasonable cause to believe a condition or practice existed that would put at risk her health or safety or that of another. Id. Again, she notes that she disputes the facts cited by Crisis & Counseling as relevant to this issue. Id. Furthermore, she argues that, contrary to Crisis & Counseling's position, she has provided evidence that she complained about the failure to follow Green Sheets and other safety issues. Id. She contends that her supervisor, Mr. Williams, candidly admitted that she complained. Id. at 11-12. She asserts that such complaints fall within the plain language of the MWPA. Id. at 12.
Ms. Gammon maintains that there is a triable issue as to whether she acted in good faith in making her complaints. Id. She contends that she has presented evidence that, she had not merely complained about her job, but had "complained to all levels of management about [Crisis & Counseling]'s policy of overbilling and failure to adhere to safety practices thus increasing the threat to its workers." Id.
Turning to the second element of a MWPA action, Ms. Gammon notes simply that Crisis & Counseling conceded that termination is an adverse employment action, that whether she was terminated is a fact in dispute, and that she has presented evidence that she was in fact terminated. Id. at 13.
Ms. Gammon argues that Crisis & Counseling "ignores the conflicting evidence which clearly establishes a direct link between [her] protected activity and the adverse action." Id. She asserts that she presented evidence that she complained about billing and safety issues "up to her termination." Id. She further asserts that these complaints were met with accusations that she was "being `negative' and a `troublemaker'" and that she was warned to stop making complaints. Id. She argues Crisis & Counseling's negative reaction to her complaints is further reflected in its admission that team leader meetings were dominated by discussions about her negative comments and its decision to put her on a corrective action plan "to address her inappropriate comments and negative behavior." Id. at 14. Ms. Gammon characterizes the corrective action plan as retaliation for her complaints. Id. She argues that the terms of the corrective action plan provide further evidence of a causal link because they put her on indefinite probation and prohibited her from engaging in conversations with others and bringing complaints to team leaders. Id. She says that when she questioned the reasons for the probation, the corrective action plan
Ms. Gammon says that the causal link is strengthened when Crisis & Counseling's proffered reasons for the probation and corrective action plan are examined. She argues that she did nothing wrong in either of the June 2007 incidents that led to the proposed plan. Id. First, she asserts that there was nothing "inappropriate or unusual" about her printing a news article and sharing it with other employees. Id. Second, she argues that there is no evidence that she instigated or did anything wrong in connection with the June 2007 confrontation with a co-worker. Id. at 15. Third, she disputes that she engaged in the workplace transgressions cited by Crisis & Counseling. Id. She argues that Crisis & Counseling proffers these reasons as a pretext for its retaliatory animus. Id. at 15-17.
Crisis & Counseling reiterates its assertion that Ms. Gammon did not have a reasonable cause to make her complaints. Def.'s Reply at 4. It says that she "cannot identify a single specific complaint which she reasonably believed was a violation of the law or an unsafe condition or practice." Id. (emphasis in reply). It argues that Ms. Gammon's attempts to dispute the material facts it presented are "cursory" and "not serious" and that Ms. Gammon fails to respond to the legal contentions in its motion for summary judgment, specifically, its analyses of the Tripp and Testa cases. Id.
Crisis & Counseling also contends that Ms. Gammon "cannot satisfy her burden of proving that she acted `in good faith' by complaining about practices or conditions that Crisis & Counseling could actually address and correct, as opposed to way[s] the agency conducted its business." Id. at 5. It again says that Ms. Gammon failed to dispute or address the cases it cited on this point in its motion for summary judgment. Id. It asserts that those cases are "dispositive and show that Gammon did not engage in protected whistleblower [activity] by complaining about the purely internal aspects of her own job or the agency's business." Id.
On the causation issue, Crisis & Counseling restates its position that "there simply are not facts to support the standard imposed by courts to show a causal nexus between any such activity and the hypothetical termination of Gammon's employment." Id. at 6. After initially stating that "a corrective action plan is not an adverse employment action as a matter of law," it asserts that there is no evidence that the proposed corrective action plan had anything to do with her alleged complaints. Id. at 6-7. Instead, it says that "the purpose of the corrective action plan was to address Gammon's disruptive behavior during the course of dealing with clients in crisis...." Id. at 7.
Finally, Crisis & Counseling argues that Ms. Gammon cannot show that its actions were pretextual. It characterizes her reference to the June 2007 confrontation as a "strawman," as it was "only a single incident in a long line of concerns regarding [Ms.] Gammon's negative and disruptive behavior." Id. It says that Crisis & Counseling had been planning a corrective action plan for her before that incident. Id. It further argues that Ms. Gammon cannot establish temporal proximity between protected activity and an adverse action because she "cannot identify a single specific protected complaint that she made within any temporal proximity of her alleged termination." Id. Finally, it argues that, even if she could establish such temporal proximity, that "does not establish causation when, as here `the larger picture undercuts
Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(a). For summary judgment purposes, "`genuine' means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party, and a `material fact' is one which might affect the outcome of the suit under the governing law." Buchanan v. Maine, 469 F.3d 158, 166 (1st Cir.2006) (quoting Seaboard Sur. Co. v. Town of Greenfield, 370 F.3d 215, 218-19 (1st Cir.2004)) (internal quotation marks omitted). "Neither conclusory allegations [nor] improbable inferences are sufficient to defeat summary judgment." Carroll v. Xerox Corp., 294 F.3d 231, 236-37 (1st Cir.2002) (citation and internal quotation marks omitted).
To prevail on her MWPA claim, Ms. Gammon must prove three elements: "(1) the employee engaged in activity protected by the statute; (2) the employee was the subject of an adverse employment action; and, (3) there was a causal link between the protected activity and the adverse employment action." Costain v. Sunbury Primary Care, P.A., 2008 ME 142, ¶ 6, 954 A.2d 1051, 1053.
The MWPA analysis is guided by federal case law construing analogous statutes. Currie v. Indus. Sec., Inc., 2007 ME 12, ¶ 12, 915 A.2d 400, 404; see also Maine Human Rights Comm'n. v. City of Auburn, 408 A.2d 1253, 1261 ("As we have previously held, the Maine legislature by adopting provisions that generally track the federal antidiscrimination statutes intended the courts to look to the federal case law to provide significant guidance in the construction of our statute." (internal quotation marks omitted)). Specifically, the statutory scheme follows "the shifting burdens analysis described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)." LePage v. Bath Iron Works Corp., 2006 ME 130, ¶ 19, 909 A.2d 629, 636. Pursuant to that analysis, if the plaintiff can establish a temporal relationship between the protected activity and the adverse employment action, "the employer, then, will be required to produce some probative evidence to demonstrate a nondiscriminatory reason for the adverse employment action.'" Id. (citing DiCentes v. Michaud, 1998 ME 227 ¶ 14, 719 A.2d 509, 514). "The final burden to prove the existence of the causal nexus remains with the plaintiff." Id. (citing DiCentes, ¶ 16, 719 A.2d at 515). "[A] plaintiff can meet [this] final burden and survive a defense motion for a summary judgment by establishing a factual dispute as to whether a causal connection exists between the report protected by the [M]WPA and the adverse employment action." Stanley v. Hancock Cty. Com'rs., 2004 ME 157, ¶ 24, 864 A.2d 169, 177.
Here, the parties' dispute comes down to whether Ms. Gammon has presented sufficient facts to establish each of the three elements.
The relevant portion of the MWPA defines protected activity:
26 M.R.S. § 833(1). Ms. Gammon alleges that her complaints about billing practices were protected activity under subpart (A) and that her complaints about safety were protected activity under subpart (B). Crisis & Counseling argues that Ms. Gammon's complaints lacked the required "good faith" and "reasonable cause to believe" elements.
Crisis & Counseling's argument that Ms. Gammon did not act in good faith boils down to an assertion that her complaints amounted to griping about the difficulty of her job rather than exposing un safe and illegal practices for the benefit of other workers and the general public. See Def.'s Mot. at 16-19. The law it cites on good faith is generally geared towards an assessment of whether the purported whistleblower made her complaints for the purpose of exposing illegal or unsafe practices. The Court is unaware of a more precise standard.
If it were to believe Ms. Gammon's testimony, a reasonable jury could find that Ms. Gammon made her complaints to expose illegal or unsafe practices. With regards to billing, she complained that she thought it was unjust and fraudulent for Crisis & Counseling to charge for work that was not being done. A reasonable jury could construe these complaints as an effort to protect clients or reimbursers from illegal billing practices.
With regards to safety, Ms. Gammon complained that safety concerns listed in clients' Green Sheets were ignored, that crisis workers were required to travel in unsafe conditions, and that the flashing light protocol to warn employees of potential emergencies at the office was disregarded.
Crisis & Counseling relies on Tripp and Testa to argue that Ms. Gammon did not have reasonable cause to believe that a violation of law occurred in connection with Crisis & Counseling's billing practices. See Def.'s Mot at 10-14.
In Tripp, a plaintiff police officer complained that a town manager violated a specific statute regarding obstruction of government administration. 425 F.3d at 9-10. The alleged violation was the town manager's request that the police officer ask the district attorney to drop a criminal charge against a local citizen. Id. at 7. The First Circuit upheld the trial court's finding that the plaintiff did not have reasonable cause to believe the town manager's request violated the statute. It noted that "in virtually all of the reported cases
In Testa, a plaintiff complained about activities relating to the inner-workings of a municipal government. See Testa, Docket No. 04-185-B-W, 2005 WL 2365319, at *8-9, 2005 U.S. Dist. LEXIS 44531, at *26-28 (D.Me. September 26, 2005). The District Court found that the plaintiff failed to present any evidence of a violation of law and had no reason to believe that one had taken place. Id. at 28-36. Instead, the Court concluded that the plaintiff's complaints reflected her own personal dissatisfaction with her job. Id.
Tripp and Testa are both inapposite to the facts in this case when viewed in the light most favorable to Ms. Gammon. In both cases, the plaintiffs tried to apply specific laws to conduct they disagreed with. However, they were unable to explain how the law applied to the conduct or why it was reasonable to consider the conduct a violation of law.
By contrast, Ms. Gammon complained about conduct that is unjust on its face. Ms. Gammon says she complained that Crisis & Counseling was billing clients for assessments that had not been made. To bill for services that were never provided would be manifestly illegal. See 17-A M.R.S. § 354 (criminalizing "theft by deception"). Individuals need not cite specific statutes to know that it would be improper for a service business not to perform the service but to charge the client as if it had been done. Indeed, to be considered protected activity, the MWPA does not require that the "reported condition, activity, or practice actually be unsafe or illegal; ... an employee's reasonable belief that it crosses the line suffices, as long as the complainant communicates that belief to this employer in good faith." Higgins, 194 F.3d at 261-62 (emphasis in original). Therefore, if a jury believes Ms. Gammon's testimony that she was required to record assessment time on billing statements when no assessment took place, it could find that she had reasonable cause to believe that a violation of law was taking place.
Crisis & Counseling also argues that Ms. Gammon could not have had a reasonable basis because she admitted she was not responsible for drafting final bills or sending them out to clients. This argument is unavailing. Ms. Gammon testified that she was responsible for preparing billing statements and that she received instructions on how to fill out those billing statements. Gammon Dep. at 81:11-82:18. It is reasonable for an employee to believe that a company's instructions to its employees regarding billing statements are related to the company's ultimate billing practices.
Turning to Ms. Gammon's safety complaints, she testified that she complained about specific issues at Crisis & Counseling. She testified that safety protocols adopted by management were not followed, that safety concerns listed in the Green Sheets regarding specific clients were ignored, and that crisis workers were required to drive to meet with clients in dangerous weather conditions. Crisis & Counseling's only argument is that Ms. Gammon misunderstands the Green Sheets. It says that they were only guidelines to help workers conduct a case-by-case analysis for proper client assessment. Crisis & Counseling's decision not to treat the warnings in its Green Sheets as evidence
There is a genuine issue of fact as to whether Ms. Gammon was the subject of an adverse employment action. Job termination is an adverse employment action under the MWPA. LePage, 2006 ME 130, ¶ 20, 909 A.2d 629, A.2d at 636. Here, the parties present a genuine dispute as to whether Ms. Gammon was terminated.
Finally, there are genuine issues of fact as to whether there is a causal link between the alleged protected activity and the alleged adverse employment action. "Proof of conduct protected by the WPA... followed in close proximity by an adverse employment action, gives rise to an inference that a causal connection is established." DiCentes, 1998 ME 227 ¶ 16, 719 A.2d 509, 515. The First Circuit has held one month is close enough proximity to raise that inference. Calero-Cerezo, 355 F.3d at 25. Ms. Gammon has presented evidence that she engaged in protected activity in monthly meetings up to the time of her termination. She has thus made out a prima facie case on causation.
Although Crisis & Counseling maintains that it never subjected Ms. Gammon to an adverse employment action, it anticipates the next step of the McDonnell Douglas framework by proffering non-retaliatory reasons for terminating Ms. Gammon. It asserts that even if it "had decided to terminate [Ms.] Gammon ... such a decision was completely unrelated to any protected activity." Def.'s Mot. at 24. In support, it cites negative comments in her evaluations from 2001 through 2006, her attendance problems, and other alleged "workplace transgressions." Id. at 23-24.
Ms. Gammon responds that those reasons are a mere pretext for Crisis & Counseling's retaliatory decision. She notes that Mr. Williams repeatedly told her that her complaints were perceived as negative and that her negativity and inappropriate comments were cited as reasons to put her on probation and a corrective action plan. She further notes that the terms of her corrective action plan prohibited her from making further complaints or asking further questions. While admitting there were negative comments in her evaluations,
Based on this record, Crisis and Counseling has satisfied its obligation to "produce some probative evidence to demonstrate a nondiscriminatory reason for the adverse action." LePage, 2006 ME 130, ¶ 19, 909 A.2d at 636. The burden shifts back to Ms. Gammon to establish "a factual dispute as to whether a causal connection exists between the report protected by the [M]WPA and the adverse employment action." Stanley, 2004 ME 157, ¶ 24, 864 A.2d at 177.
The Court is satisfied that Ms. Gammon has established a factual dispute as to whether a causal link exists. The Court is mindful that it should "exercise caution in resolving issues of pretext on summary judgment." Cookson v. Brewer Sch. Dept., 2009 ME 57, ¶ 17, 974 A.2d 276. 974 A.2d 276, 282; see also Billings v. Town of Grafton, 515 F.3d 39, 56 (1st Cir.2008) (stating that "where a plaintiff in a discrimination case makes out a prima facie case and the issue becomes whether the employer's stated nondiscriminatory reason is a pretext for discrimination, courts must be particularly cautious about granting the employer's motion for summary judgment." (internal quotation marks omitted)). Ms. Gammon need only create a genuine factual dispute as to whether Crisis & Counseling's reasons for taking action against her were pretexts. She may do so by demonstrating "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action." Cookson, 2009 ME 57, ¶ 17, 974 A.2d 276, 282 (quoting Billings, 515 F.3d at 55-56) (internal quotations omitted). Ms. Gammon's evidence establishes inconsistencies and contradictions in the tone of her evaluations and the events surrounding the June 2007 incidents. She has further alleged that by citing "negativity" as a reason for termination, Crisis & Counseling makes a veiled reference to her complaints. Given the dispute surrounding the facts and motives underlying Crisis & Counseling's actions, resolution of the causation issue is best left for a fact finder. See Petitti v. New England Tel. & Tel. Co., 909 F.2d 28, 34 (1st Cir.1990).
Ellen Gammon has generated genuine issues of material fact regarding each of the three elements of her MWPA claim. Accordingly, summary judgment is inappropriate.
The Court DENIES Crisis and Counseling Centers, Inc.'s Motion for Summary Judgment (Docket # 28).
SO ORDERED.
