By Nicole D. Prysby, J.D.
While Maine’s Whistleblower Protection Act (WPA) does not have a three-part burden-shifting approach like the McDonnell Douglas approach, the First Circuit noted that in the final analysis, the state-specific retaliation paradigm requires the same “quantum of proof,” and it found no error in a determination that a certified nursing assistant failed to provide enough evidence of causation to avoid summary judgment. Temporal proximity between her termination and her complaint about a coworker’s cell phone use was not enough. Moreover, the mere fact that she complained about her coworker shortly before her termination “does not shield her from the consequences of her own actions,” noted the appeals court, and she failed to discredit the employer’s proffered evidence that she was fired over allegations that she was mistreating and threatening patients (Theriault v. Genesis Healthcare LLC, May 16, 2018, Selya, B.).
The employee was a certified nursing assistant who worked at a residential care facility. She had disagreements with a coworker and was told to submit her grievances in writing. Meanwhile, the coworker took her own grievances to management, presenting a list of work violations by the employee, including shaking a resident and making comments about using weapons on residents. Management took the coworker’s concerns seriously and suspended the employee. The employee then presented her list of grievances about the coworker, which included instances where the coworker had been rude and had texted on her cell phone while dispensing medication, in violation of workplace policy.
Management investigated the grievances against the employee, found they were credible, and fired her. Filing suit under Maine’s WPA, she claimed her termination was in retaliation for complaining about the coworker. Summary judgment was granted for the employer and the employee appealed.
Applicable framework. The parties agreed that the district court was obliged to apply Maine substantive law and federal procedural law. There was also no doubt that her complaint about the coworker texting while dispensing medication was activity protected by the WPA and that her termination was an adverse employment action. The remaining issue was whether there was a causal connection between the two.
The parties disagreed about what evidence of causation should have been considered at the summary judgment stage: the employee argued that under Maine law, only the employee’s evidence may be considered in a WPA retaliation case, while the employer argued that the court should consider all of the evidence. The district court had sided with the employer and considered all of the evidence; the employee asserted that this was an incorrect application of the McDonnell Douglas framework, and that the applicable framework should have been determined by state substantive law.
Unlike the three stages of the McDonnell Douglas framework, in the Maine framework, the employee must demonstrate causation up front. The employee interpreted this to mean that only her evidence should have been considered. But the First Circuit sided with the district court, finding that it correctly applied the Maine framework and that under the Maine framework, the employer’s evidence must be considered at the summary judgment stage when determining whether the causation element has been met.
Fired for suspected patient abuse, not for whistleblowing. On the merits, the employee argued that the temporal proximity of her complaint about the coworker’s texting and her termination warranted an inference of causation. The court disagreed, finding that temporal proximity alone is not sufficient to create a causal link. The employee also argued that the employer’s stated reason for her termination—she was seen grabbing a brain injured patient by the shirt and shaking him and made comments, purportedly in jest, about harming patients—was pretextual, because a reasonable fact-finder could have concluded she did not commit patient abuse.
Again, the court rejected this argument, as there was nothing in the record that would demonstrate that the decision to fire the employee was made in bad faith. Although an inquiry eventually determined that no patient abuse occurred, this did not equate to a finding that the employer acted in bad faith, given that it had confirmation from a neutral witness to the alleged abuse. In addition, the patient-shaking incident was not the only reason for the termination.
The employee also argued that the fact that she was terminated and her coworker was not constituted evidence of disparate treatment. But the court found that the allegations were not similar enough to demonstrate disparate treatment, as the allegations against the coworker did not involve patient abuse and were found to be unsubstantiated.
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