JOHN A. WOODCOCK, JR., Chief Judge.
Concluding that an employee has raised sufficient evidence to withstand a motion for summary judgment under the Maine Whistleblowers Protection Act (MWPA), the Court denies the employer's motion for summary judgment.
On November 30, 2009, Thomas Halkett filed suit in Penobscot County Superior Court against his former employer, Correctional Medical Services, Inc. (CMS), alleging that CMS violated the Maine Whistleblower Protection Act (MWPA), 26 M.R.S. § 831 et seq., and the Maine Human Rights Act (MHRA), 5 M.R.S. 4551 et seq., by terminating his employment after he complained to CMS about its practices, which he reasonably believed were illegal. Notice of Removal (Docket # 1) Attach. 1 (Compl). On December 22, 2009, CMS removed the action to this Court based on its diversity jurisdiction. Notice of Removal. On June 22, 2010, CMS moved for summary judgment. Def.'s Mot. for Summ. J. (Docket # 16) (Def.'s Mot.). On August 16, 2010, Mr. Halkett responded. Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. (Docket # 23) (Pl.'s Opp'n). On August 30, 2010, CMS replied. Def.'s Br. in Reply to Pl.'s Objection to Def.'s Mot for Summ. J. (Docket # 27) (Def.'s Reply).
In its Reply to Mr. Halkett's Statement of Additional Material Facts, CMS objects to paragraph 155 on the ground that it violates Local Rule 56(c) by positing "two distinct statements of fact each with a distinct record citation." Def.'s Am. and Corrected Reply to Pl.'s Statement of Additional Material Facts ¶ 155 n. 1 (Docket # 29) (DRPSAMF). See D. ME. LOC. R. 56(c). Local Rule 56(c) requires that a party opposing a motion for summary judgment submit with its opposition "a separate, short, and concise statement of material facts." D. ME. LOC. R. 56(c). It allows the opposing party to submit additional facts, "each set forth in a separately numbered paragraph and supported by a record citation." Id. At the same time, the Court does not require that each paragraph contain only a single assertion. Randall v. Potter, 366 F.Supp.2d 120, 122 (D.Me.2005) ("[T]he requirement of `separately numbered paragraphs' does not mean each paragraph must contain only one sentence."); Capozza Tile Co. v. Joy, 223 F.Supp.2d 307, 313 n. 2 (D.Me.2002) (denying a motion to strike a statement of material facts "replete with multiple allegations set forth in the same numbered paragraph" because a response "would not be unduly burdensome"). The Court has reviewed Plaintiff's paragraph 155 and has concluded that it does not violate Local Rule 56(c). The Court overrules CMS's
In his Statement of Additional Material Facts, Mr. Halkett provided some of his educational and professional background. Pl.'s Statement of Additional Material Facts ¶¶ 150-51 (Docket # 22) (PSAMF). CMS objects on the basis that his background and experience is not material to the motion. DRPSAMF ¶¶ 150-51. The Court overrules CMS's objection.
Thomas Halkett is a licensed clinical professional counselor with a bachelor of arts degree in philosophy and a master's degree in divinity. PSAMF 150; DRPSAMF ¶ 150. Mr. Halkett has maintained a private counseling practice since the late 1980s, has been employed as an assistant professor of philosophy at the University of Maine at Machias since 1994, and had worked as a vicar at St. Aidan's Episcopal Church in Machias, Maine. PSAMF ¶ 151; DRPSAMF ¶ 151. Mr. Halkett worked with inmates at the Washington County Jail from 1985 to the mid-1990s. PSAMF ¶ 152; DRPSAMF ¶ 152. In January 2004, Mr. Halkett gave up his position as vicar at St. Aidan's.
In March 2006, Mr. Halkett was allowing inmates to make telephone calls from his office to people outside the prison. DSMF ¶ 71; Pl.'s Resp. to Def.'s Statement of Undisputed Material Facts ¶ 71 (Docket # 22) (PRDSMF). Specifically, Mr. Halkett was treating an inmate, "C.M.," for mental health issues. DSMF ¶ 72; PRDSMF ¶ 72. During this same time, Carol Geel, a licensed social worker and correctional caseworker for the Maine Department of Corrections (MDOC) at the Downeast Correctional Facility (DCF), was C.M.'s MDOC caseworker. DSMF ¶¶ 72-73; PRDSMF ¶¶ 72-73. Ms. Geel believed that C.M. had been convicted of domestic abuse and was a batterer who had remained obsessed about his girlfriend's whereabouts, and Ms. Geel had refused to authorize C.M.'s requests to telephone his girlfriend.
In the spring of 2006, Ms. Geel learned that Mr. Halkett had allowed C.M. to contact his girlfriend.
In March 2006, Mr. Halkett thought it was entirely appropriate for C.M. to initiate telephone calls to his girlfriend. DSMF ¶ 91; PRDSMF ¶ 91. During the winter of 2006, Mr. Halkett believed that if he thought it was appropriate to do so, in certain circumstances, such as where there were family issues, where someone was incredibly distraught, or occasionally if the person needed to speak to a lawyer, inmates could place telephone calls from his office. DSMF ¶ 87; PRDSMF ¶ 87. He also believed that if a person outside prison was on an inmate's visiting list, and if that person sent mail to the prisoner, the inmate faced no restrictions against initiating telephone calls to that person so long as the inmate was "not in a domestic violence situation." DSMF ¶ 89; PRDSMF ¶ 89. Although C.M.'s girlfriend was on an approved list of his visitors, whether she visited him was her decision, based exclusively on her initiation, and as a result of Mr. Halkett's actions, although she could have terminated the conversation by hanging up, the girlfriend did not have the same freedom of choice with respect to telephone calls initiated by C.M.
After learning about Mr. Halkett and C.M., on June 20, 2006, Mr. Pennell prepared a memorandum and submitted it to Mr. Halkett. DSMF ¶ 93; PRDSMF ¶ 93. MDOC Policy 21.3, which had an effective date of May 14, 2002, covers the right of inmates to make telephone calls to persons outside the prison. DSMF ¶ 94, 96; PRDSMF ¶ 94, 96. Mr. Halkett says, however, that there is a separate MDOC policy that defines rules for when a mental health worker can place a phone call on behalf of an inmate.
Kimberly Partridge, who was Mr. Halkett's direct supervisor at CMS, did not discipline Mr. Halkett for the incident involving C.M. but she issued a memorandum. DSMF ¶ 103; PRDSMF ¶ 103; PSAMF ¶ 159; DRPSAMF ¶ 159. Although Ms. Partridge considered the memorandum a counseling step, the memorandum itself does not say it was intended as a counseling step and Ms. Partridge did not consider it to be a written warning. DSMF ¶ 103; PRDSMF ¶ 103.
On October 26, 2007, Mr. Halkett allowed an inmate, "A.B.," whom he had been treating, to leave a voicemail message with his probation officer, Christopher Arbour, from Mr. Halkett's office at DCF. DSMF ¶¶ 104, 106; PRDSMF ¶¶ 104, 106. A.B.'s voicemail to Probation Officer Arbour informed the Officer that A.B. would contact his supervisor if he did not return the call.
In late October 2007, Ms. Partridge became aware of the telephone incident involving A.B. from Mark Caton, the Director of the DCF, and from Mr. Pennell on October 30, 2007.
Mr. Halkett was away for a two-week leadership training session but upon his return on November 15, 2007, Ms. Partridge notified him that allowing A.B. to leave a voicemail message was unacceptable and that CMS was "not sure that [Halkett] would be allowed to work [at DCF] anymore." DSMF ¶ 114; PRDSMF 1114. Ms. Partridge made it clear to Mr. Halkett that she was investigating the telephone incident involving A.B. and she asked him to prepare a written statement. DSMF ¶ 115; PRDSMF ¶ 115. During their conversation, Ms. Partridge gave Mr. Halkett an opportunity to clarify whether he had allowed an inmate to make a telephone call or whether he had helped the inmate make a call from his office. DSMF
Ms. Partridge prepared a memorandum dated November 15, 2007, following her conversation with Mr. Halkett. DSMF ¶ 118; PRDSMF ¶ 118. She also called Mr. Caton on November 15, 2007, and told him that Mr. Halkett denied making a call to a probation officer or allowing A.B. to make the call.
After reviewing his progress notes, Mr. Halkett recalled that A.B. had come to him on October 26, 2007, and was extremely agitated, frightened, and obsessed about his pending release from prison. PSAMF ¶ 190; DRPSAMF ¶ 190. A.B. was very worried about where he was going to live and was very fearful that his probation officer was out to get him and would move quickly to revoke his probation. Id. Mr. Halkett was very concerned about A.B.'s mental state and the potential for A.B. to become violent. PSAMF ¶ 191; DRPSAMF ¶ 191. He therefore made the decision that it would be of great therapeutic value for Mr. Halkett to call A.B.'s probation officer in A.B.'s presence to attempt to assuage A.B.'s concerns. PSAMF ¶ 192; DRPSAMF ¶ 192.
Mr. Halkett prepared a written statement about the A.B. telephone incident and submitted it to her on November 16, 2007. DSMF ¶ 122; PRDSMF ¶ 122. In the statement, Mr. Halkett conceded that he:
DSMF ¶ 123; PRDSMF ¶ 123. He went on to write that "once in a while for therapeutic reasons, I have pushed the edge on this phone call prohibition," but he emphasized that these instances are "exceptional and from an institutional point of view, may be security problems, or in the parlance of our institution, disobeying a direct order. But I don't think so and would enjoy talking with you and Mark about that." DSMF ¶¶ 124-25; PRDSMF ¶¶ 124-25. He thought that allowing A.B. to leave a voicemail message was completely different from allowing A.B. to make a phone call, and that he had not violated the spirit of Mr. Pennell's June 20, 2006 letter. DSMF ¶ 126; PRDSMF ¶ 126. At the same time, he conceded that
Mr. Halkett understood from his first conversation with Ms. Partridge that CMS considered what he had done to be very serious, and in fact, Ms. Partridge informed him that he might be terminated. DSMF ¶ 130-31; PRDSMF ¶ 130-31. She told Mr. Halkett that he was being "locked out" of the DCF because of the A.B. telephone incident. DSMF ¶ 132; PRDSMF ¶ 132. On December 5, 2007, Ms. Partridge recommended to Mr. Amberger and CMS's Human Resources representative that Mr. Halkett be terminated. DSMF ¶ 138-39; PRDSMF ¶ 138-39. Ms. Partridge consulted with Sterling Price, a human resources specialist, who only indicated that the conduct was "terminable," and with her superior, Mr. Amberger. PSAMF ¶ 204; DRPSAMF ¶ 204.
Mr. Amberger accepted Ms. Partridge's recommendation to terminate Mr. Halkett. DSMF ¶ 141; PRDSMF ¶ 141. On December 7, 2010, Ms. Partridge called Mr. Halkett and told him that CMS was terminating him because of the A.B. incident. DSMF ¶ 143-44; PRDSMF ¶ 143-44. Mr. Halkett believes that CMS applied the telephone policy selectively against him, since he was told by Patty Murphy, a fellow counselor, that she had been allowing inmates to make phone calls from her office ever since she started working there.
In October 2006, Mr. Halkett became aware that his counseling records for an inmate, Brian, were missing from Brian's chart. PSAMF ¶ 159; DRPSAMF ¶ 159. Mr. Halkett expressed his concern about the missing records to Ms. Partridge, particularly since the absence of treatment records for an inmate who was required to undergo mental health treatment could adversely affect the inmate.
In the fall of 2006, Mr. Halkett also became aware that a letter he had written for an inmate, "D.B.," concerning his progress in counseling with a goal to gain minimum security status within DCF, was missing from D.B.'s file. PSAMF ¶ 161; DRPSAMF ¶ 161. Mr. Halkett had given D.B. a copy of the letter and D.B. told him that his cell had been searched and the letter was missing from his cell after the search was completed.
When Mr. Halkett brought these missing records to Ms. Partridge's attention, she suggested that the missing records for both Brian and D.B. were only a problem of misfiling, not intentional removal. PSAMF ¶ 163; DRPSAMF ¶ 163. Mr. Halkett felt he had never received a satisfactory explanation for why the records were missing. Id.
In the spring of 2007, Mr. Halkett emailed Ms. Partridge regarding a breach of confidentiality involving counseling records, which Mr. Halkett considered a violation of state and federal law. PSAMF ¶ 164; DRPSAMF ¶ 164.
Mr. Halkett claims that "W.B.," an inmate, had filed complaints with the Board of Nursing against Ms. Partridge and Michelle Snow over their mishandling of a confidential medical discussion as well as other issues, including allowing a known narcotics addict to inject his own medicine.
Mr. Halkett raised his concerns with Ms. Partridge and when she failed to respond, he went over her head and on May 8, 2007, sent a letter to David Wilkinson, the Regional Manager of CMS, complaining about the breach of inmate confidentiality by Ms. Partridge and Ms. Snow.
On July 19, 2007, Mr. Halkett wrote another letter to Ms. Partridge complaining that an inmate's counseling records were not being kept confidential as he had seen a caseworker, Carol Geel, take an inmate's chart.
On September 14, 2007, Mr. Halkett called and left a message for Ms. Partridge about another breach of inmate confidentiality. PSAMF ¶ 175; DRPSAMF ¶ 175. He informed Ms. Partridge that the records of an inmate, "F.B.," had been mishandled and that another inmate's records had been included in F.B.'s chart. PSAMF ¶ 175; DRPSAMF ¶ 175. When Ms. Partridge did not reply, Mr. Halkett followed up with a memorandum dated September 19, 2007 to Ms. Partridge with copies to Jeff Morin, the Director of the Charleston Correctional Facility (CCF), Judy Bailey, the Unit Manager of CCF, Larry Amberger, the Regional Director of CMS, and Joe Fitzpatrick, the Director of Mental Health for the Maine Prison System. PSAMF ¶ 175; DRPSAMF ¶ 175. In his September 19, 2010, memorandum, Mr. Halkett stated:
PSAMF ¶ 176; DRPSAMF ¶ 176. On September 27, 2007, Mr. Halkett sent Ms. Partridge a follow-up letter, reiterating that he wanted to talk to her about the confidentiality issue. PSAMF ¶ 177; DRPSALF ¶ 177. Mr. Halkett never did get to speak to Ms. Partridge about these concerns nor did anyone at CMS or DOC address his concerns. PSAMF ¶ 178; DRPSAMF ¶ 178. Although Ms. Partridge may have discussed confidentiality protocols with CMS management after September 19, 2007, she does not recall
Ms. Partridge did not investigate how the notes of one inmate ended up in another inmate's chart. PSAMF ¶ 181; DRPSAMF ¶ 181. If a records request had been made, it would have been the responsibility of the on duty nurse to locate and copy records, and that nurse should have discovered the presence of another inmate's notes within the chart.
On September 18, 2007, Mr. Halkett was served with a subpoena to testify at a trial on behalf of inmate "M.T.," and he provided Ms. Partridge with a copy of the subpoena. PSAMF ¶ 183; DRPSAMF ¶ 183. Ms. Partridge told Mr. Halkett that she would prefer he not testify on behalf of M.T. because it could be problematic for Mr. Halkett and CMS.
On November 16, 2007, Mr. Halkett received a telephone call from Chris Taintor, a lawyer representing CMS in a lawsuit brought by inmate "W.B." PSAMF ¶ 185;
CMS first contends that Mr. Halkett failed to satisfy the prima facie elements of a MWPA claim. Def.'s Mot. at 9-14. It says that Mr. Halkett cannot demonstrate that he engaged in protected activity or that there was a causal connection between the activity and his termination. Id. at 10. Focusing on the definition of protected activity in 26 M.R.S. § 833(1)(A) and (B), CMS says that Mr. Halkett's complaints to CMS do not survive a "reasonableness" inquiry. Id. at 11. CMS insists that Mr. Halkett failed to identify any state or federal law, rule or regulation that CMS supposedly violated. Id. at 11-12. Even if Mr. Halkett held a subjective belief that CMS was violating the law, CMS says that to present a prima facie case in a MWPA claim, the employee must satisfy an objective component for the reasonableness of his belief. Id. at 11-14. It concludes that Mr. Halkett's belief cannot be deemed both subjectively and objectively reasonable. Id.
CMS contends that, even if Mr. Halkett survives the protected activity element of his MWPA claim, he has failed to present evidence that would satisfy his burden to establish a causal connection between his protected activity and his termination. Id. at 14-17. CMS says that of Mr. Halkett's four complaints, only two occurred within three months of his termination and the other two were "quite attenuated in time." Id. at 15. Even as to the latter two instances, CMS claims that "[n]either . . . provide the type of immediate temporal proximity which, standing alone, would be `strongly suggestive' of retaliation." Id. Furthermore, CMS asserts that Mr. Halkett's September 19, 2007, "broadside" was too vague to credit as the cause of his dismissal, especially in light of his serious violation of the CMS prisoner telephone policy. Id. at 16.
CMS says that, should the Court conclude that Mr. Halkett has sustained his prima facie case, it should also conclude that CMS has met the McDonnell Douglas burden to present a non-retaliatory reason for his termination. Id. at 17-18. As proof, CMS cites the facts surrounding Mr. Halkett's allowance of inmate phone calls from his office. Id.
Mr. Halkett first observes that CMS failed to address 26 M.R.S. § 833(1)(C), which extends the scope of protected activity to an employee's participation in an investigation, hearing or inquiry held by that public body or in a court action. Pl.'s Opp'n at 8-9. He contends that he was required to respond to the subpoena and testify on behalf of inmate M.T. and was designated as an expert witness by inmate W.B. and that his participation in those activities is protected conduct under section 833(1)(C). Id.
Regarding his complaints about confidentiality violations, Mr. Halkett says that the question is not whether the violations were in fact illegal but whether a reasonable person might have believed the practices were illegal. Id. at 9. Mr. Halkett goes on to assert that he was not merely reasonable in believing that the five instances of confidentiality breaches were illegal, "he was right." Id. at 11.
Addressing the causation issue, Mr. Halkett stresses that the question is whether there is sufficient evidence in this record to permit a factfinder to find that "there was differential treatment in an employment action and that the adverse employment decision was caused at least in part by a forbidden type of bias." Id. at 12. Finally, as regards his ultimate burden of proof, Mr. Halkett says that the temporal closeness of his protected activity and termination, the weaknesses, inconsistencies and contradictions in CMS's explanations, its failure to follow its progressive discipline policy, and its decision to allow the person against whom Mr. Halkett had complained to make the termination decision creates a factual question that can only be resolved by a factfinder. Id. at 11-20.
In its Reply, CMS disputes much of what Mr. Halkett contended in his Response. CMS begins with the facts, challenging Mr. Halkett's characterization of the events surrounding the handling of inmate treatment records and concluding that Mr. Halkett's argument requires the Court to "ignore the relationship between the inmates whose records were at issue and the specific duties of the employees who were in possession of those records." Def.'s Reply at 2-4. CMS then explains why the records were accessed. Id.
CMS next observes that Mr. Halkett's attempts to provide legal authority for his view of inmate confidentiality failed to account for (or even cite) the Maine statute that specifically addresses confidentiality among inmates: 34-A M.R.S. § 1216(1)(B). Id. at 4-5. CMS says that a review of section 1216(1)(B) confirms that Mr. Halkett's belief that CMS had violated laws protecting inmate confidentiality was simply incorrect. Id. at 5. It also says that Mr. Halkett's assumptions
CMS disputes Mr. Halkett's rendition of the facts in this case. First, it recites the facts which, according to CMS, preclude an inference of pretext or animus by CMS. Id. at 6-9. Second, it emphasizes the facts supposedly discrediting Mr. Halkett's judgment, specifically his view that C.M. was not a perpetrator of domestic violence. Id. at 10.
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).
To prevail on his MWPA claim, Mr. Halkett 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 ("[A]s 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)." Le-Page v. Bath Iron Works Corp., 2006 ME 130, ¶ 19, 909 A.2d 629, 635-36. 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."
The First Circuit has explained that "[u]nder the MWPA, the complained-of conduct need not actually be illegal, but the employee must prove that a reasonable person might have believed that it was." Tripp v. Cole, 425 F.3d 5, 9, (1st Cir.2005) (emphasis in original) (internal punctuation and citation omitted); accord Bard v. Bath Iron Works Corp., 590 A.2d 152, 155 (Me. 1991). Armed with this understanding of the MWPA, the Court considers the reasonableness of Mr. Halkett's beliefs in the violations of inmate confidentiality.
The Court turns first to the statutory language and whether a reasonable person might have believed there were ongoing violations of inmate confidentiality. Assuming that CMS is correct that the applicable Maine statute regarding an inmate's right of confidentiality is 34-A M.R.S. § 1216(1)(B), this statute does not eliminate the individual right of confidentiality because he is an inmate. To the contrary, the Maine statute begins with the premise that inmate records are confidential. 34-A M.R.S. § 1216(1)(B) (providing that "[a]ll . . . medical . . . records. . . and facts contained in them, pertaining to any person receiving services from the department must be kept confidential and may not be disclosed to any person"). The statute allows for the disclosure of medical and other records "[t]o any state agency if necessary to carry out the statutory functions of the agency." 34-A M.R.S. § 1216(1)(B).
Mr. Halkett's complaints to CMS about misfiled and missing mental health care notes raised questions about whether CMS was complying with its statutory obligation as a contracting agency to the DOC under Maine law to protect inmate confidentiality. See id. Furthermore, if Ms. Partridge and Ms. Snow accessed an inmate's chart in order to obtain confidential information to assist them in their defense of a complaint the inmate had filed against them before the Board of Nursing, their access to the inmate chart would not have been consistent with accessing the records to perform "the statutory functions" of the DOC and its contractors. Id.
The Maine Supreme Judicial Court has stated that "if a Maine employee reports a suspected violation of federal law to his employer in compliance with the Act, he is protected by the Act." Bard, 590 A.2d at 156. The same applies to suspected violations of state law. Tripp, 425 F.3d at 9 (observing that the employee contended that the employer had violated a Maine statute). Here, the Court concludes—even accepting the DOC's position as to the applicable Maine statute—that the facts viewed in the light most favorable to Mr. Halkett show he had a "reasonable belief" that CMS's handling of confidential inmate records had "cross[ed] the line" and that he had "communicated that belief to his employer in good faith." Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261-62 (1st Cir.1999).
The Court also finds that there are sufficient facts from which a jury could reasonably perceive a temporal relationship between Mr. Halkett's complaints and
Under the McDonnell Douglas burden-shifting framework, CMS has the burden of "articulating a legitimate, nondiscriminatory reason for the adverse employment decision." Mesnick, 950 F.2d at 823. CMS has amply sustained its burden, and Mr. Halkett does not argue it has not.
"At the final stage, the plaintiff is required to show, unassisted by the original inference of discrimination, that the employer's proferred reason is actually a pretext for discrimination of the type alleged." Id. at 823-24. In DeCaire v. Mukasey, the First Circuit explained the plaintiff's burden of proof at this final stage: "it is permissible for a trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's discrimination." 530 F.3d at 19. (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). A plaintiff is not required to produce direct evidence of pretext and may rely on circumstantial evidence to make his case. Id. at 20. In Collazo v. Bristol-Myers Squibb Mfg., 617 F.3d 39, 50 (1st Cir.2010), the First Circuit reiterated that to withstand summary judgment, a plaintiff need not "prove by a preponderance of the additional evidence that [retaliation] was in fact the motive for the action taken. All a plaintiff has to do is raise a genuine issue of fact as to whether [retaliation] motivated the adverse employment action." (quoting Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 433 (1st Cir.2000)).
CMS's arguments may eventually carry the day before a jury; Mr. Halkett's stubborn repetitive violation of CMS and DOC policies regarding telephone contact
As an initial matter, CMS's contention that there is no evidence that it treated Mr. Halkett differently than other similarly situated employees is disputed. Id. Mr. Halkett alleges that Patty Murphy, a Washington County Psychotherapy Associates employee who worked with DCF inmates, allowed inmates to make telephone calls, but there was no evidence she had been disciplined. Furthermore, CMS's decision to terminate Mr. Halkett, rather than to apply progressive discipline, suggests that it treated him differently than typical employees.
Moreover, a factfinder could infer that CMS's termination was pretextual based upon the number, frequency and nature of Mr. Halkett's complaints preceding his termination. Mr. Halkett's September 19, 2007 complaint was only the latest in a string of similar complaints, repeatedly accusing his fellow workers and supervisor of confidentiality violations and documenting potential violations of law and regulation. Mr. Halkett's punctiliousness in applying rules against others stands in marked contrast to his refusal to obey rules himself. A jury could reasonably conclude that CMS simply had enough of Mr. Halkett and his constant complaining.
CMS also emphasizes the context within which Mr. Halkett's confidentiality complaints occurred. According to CMS, all the persons who allegedly violated inmate confidentiality were involved with inmate care since they were employees at either CMS or DOC. CMS reasons that they must have, therefore, acted in accordance DOC policy. Def.'s Reply at 3-4. This point goes to the reasonableness of Mr. Halkett's complaints. However, the legal standard is not whether the activity was actually illegal but whether a reasonable person might have believed the activity was illegal. Tripp, 425 F.3d at 9. Moreover, if Ms. Partridge and Ms. Snow had reviewed an inmate's file to obtain information to defend a pending complaint, CMS must concede that this access would not have been appropriate and would cause a reasonable person to believe that a violation might have occurred.
Taken as a whole, the Court concludes that Mr. Halkett has raised genuine issues of material fact. The sum of Mr. Halkett's evidence is:
These factors, taken together and viewed in the light most favorable to Mr. Halkett, are sufficient to withstand summary judgment.
The Court DENIES Correctional Medical Services, Inc.'s Motion for Summary Judgment (Docket # 16).
SO ORDERED.
In its reply to Mr. Halkett's similar response to statement of material fact paragraph 98, CMS says that "[n]o such MDOC policy has been offered by Mr. Halkett for the Court's review, nor does any such policy appear in the discovery record." DRPSAMF ¶ 98. It goes on to say that "[n]o admissible documentary evidence has been offered to support Mr. Halkett's qualification in this Response, or to support the statement offered in Mr. Halkett's deposition on this issue." Id. At this stage, the Court is required to view the record in the light most favorable to Mr. Halkett and therefore will take his assertion at face value. Whether MDOC has such a written policy is presumably ascertainable. If it does not, Mr. Halkett and his counsel will owe this Court an explanation.
Neither party's position is supported by the record. Although at one point the question is objected to, Partridge Dep. 62:9-15, later during her deposition, Ms. Partridge effectively answered the question:
Id. 73:19-22.
