In Brady v. Cumberland County, 2015 ME 143 (November 19, 2015), the Maine Law Court has made it significantly more difficult for employers to get dismissal at the summary judgment stage for retaliation claims brought under the Maine Whistleblowers’ Protection Act (MWPA), increasing exposure to a jury trial.
In Brady v. Cumberland County, 2015 ME 143 (November 19, 2015), the Court unanimously rejected the burden-shifting analysis that it historically has used to evaluate claims brought under the Maine Whistleblowers’ Protection Act at the summary judgment stage. Under the so-called McDonnell Douglas analysis, developed by the U.S. Supreme Court in the context of claims brought under Title VII and other employment discrimination laws, to survive summary judgment a MWPA claimant has had to show some evidence that the legitimate reason given by the employer for adverse action against an employee was a “pretext” for retaliation. In Brady the Court rejected this “compartmentalized” analysis. Now whistleblower claimants can get to a jury simply by making out a prima facie case on the basic elements of their claim – a light burden and short path to a jury trial.
Three key takeaways from the Brady decision:
- It will now be easier for MWPA claimants to defeat summary judgment motions filed by employers. MWPA claims will need to be analyzed and valued on the assumption that claimants will be able to get to a jury.
- It’s now all the more important for employers to be aware of and respond promptly and seriously to any complaint of illegal workplace activity or unsafe or unhealthy working conditions. Of course, documentation at every step is crucial.
- In evaluating discipline or other adverse action against an employee who has made a whistleblower complaint (even if, as in Brady, the complaint was not recent), employers should carefully consider how comparable employees who have not engaged in whistleblower activity have been treated in similar circumstances.
Brady is carefully limited to MWPA claims at the summary judgment stage. But the Court went out of its way to cite stinging criticism of the McDonnell Douglas test by some federal courts in Title VII and other employment discrimination cases. Will the Court eventually apply its reasoning in Brady to other employment discrimination cases, further exposing employers to jury verdicts? That remains to be seen.
Brady v. Cumberland County
Gerard Brady, a detective with the Cumberland County Sheriff’s Department, alleged that he was demoted to a patrol position for voicing concerns based on a video that was shown to him in which a corrections officer placed an inmate in a chokehold. Brady ultimately complained about the correction officer’s actions and alleged that he was told in effect to keep quiet. Two years later Brady was demoted. Brady argued (among other claims) that his demotion was in retaliation for his MWPA-protected complaints about the chokehold and that he had been treated more harshly than others in comparable circumstances. The County argued that Brady was demoted because he used county equipment and vehicles and took sick leave to conduct his private polygraph examination business in competition with the County. In support of its position the County argued that there was no evidence that the decision-makers in the demotion action knew about Brady’s complaint about inmate treatment; that there was no causal connection because two years had passed between the complaint and the demotion decision; and that the comparators relied on by Brady involved different circumstances.
The Superior Court granted summary judgment to the County, concluding that Brady failed to meet his burden under the McDonnell Douglas test. On appeal the Law Court vacated the judgment, holding that (1) Brady produced sufficient evidence to allow a jury to find that the adverse employment action taken against him was substantially motivated at least in part by retaliatory intent; and (2) the McDonnell Douglas test is not appropriate at the summary judgment stage of MWPA cases.
As the Court explained, under the McDonnell Douglas test claimants of employment discrimination must establish enough evidence to make out a threshold or prima facie case on each element of the claim. The burden then shifts to the employer to produce evidence of a legitimate, non-discriminatory reason for the adverse action. Assuming that both parties have met their burden at the first two stages (as is typically the case), the burden then shifts again to the employee to show evidence that the employer’s proffered legitimate reason is a “pretext” sufficient to generate an issue of fact to be decided by a jury. In Brady the Court said that the burden-shifting analysis was needlessly “compartmentalized” when applied to MWPA claims at the summary judgment stage. According to the Court, the causal link between whistleblower retaliation and adverse action should be an issue for the jury, as long as the claimant has made out a prima facie case – which is, as the Court acknowledged, a relatively light burden. In finding that Brady had made out a prima facie case under the MWPA, the Court said that a jury could make an inference that the managers who made the decision to demote him knew of his earlier complaints, even though there was no direct evidence of such knowledge. The Court also said that the two year gap between Brady’s complaint and the demotion decision was not enough to warrant summary judgment in favor of the County.