MAINE SUPREME JUDICIAL COURT                                                  Reporter of Decisions
Decision: 2014 ME 27
Docket:   Was-13-214
Argued:   November 19, 2013
Decided:  February 25, 2014

Panel:       SAUFLEY, C.J., and ALEXANDER, LEVY, MEAD, GORMAN, and JABAR, JJ.


                                  RICHARD C. HICKSON

                                                v.

                                VESCOM CORPORATION

SAUFLEY, C.J.

         [¶1] Vescom Corporation, which provided private security services at a

paper mill owned by Domtar,1 appeals from a judgment of the Superior Court

(Washington County, R. Murray, J.) entered in favor of Richard C. Hickson after a

jury found that Vescom had violated the Whistleblowers’ Protection Act, 26 M.R.S.

§§ 831-840 (2013), by terminating Hickson’s employment as a security officer

stationed at the mill. Vescom argues that Hickson failed to make a protected

whistleblower’s report because he reported only the actions of Domtar or

government officials and not the actions of his employer, Vescom. We affirm the

judgment.




   1
    Domtar is referred to in the record alternately as Domtar Maine Corporation; Domtar Maine LLC;
Domtar Industries, Inc.; and Domtar Pulp & Paper. We refer to the entity as Domtar in this opinion.
2

                               I. BACKGROUND

      [¶2] The following facts are taken both from the trial evidence, viewed in

the light most favorable to supporting the jury’s verdict, and from the additions to

the record that were properly effectuated by a court order pursuant to M.R.

App. P. 5(e). See Beane v. Me. Ins. Guar. Ass’n, 2005 ME 104, ¶ 11, 880 A.2d

284; Sullivan v. Porter, 2004 ME 134, ¶ 2, 861 A.2d 625.

      [¶3] In July 2006, Vescom Corporation provided security at the Domtar mill

in Baileyville pursuant to a contract between Vescom and Domtar.           Hickson

worked for Vescom at the mill. He was a shift supervisor who worked at the gate.

In that capacity, he was responsible for performing duties related to both security

and safety. Vescom adopted Domtar’s safety policies verbatim, and Vescom’s

employees were responsible for following and enforcing those policies. Included

among these policies was a requirement that visitors carry respirators and wear

protective footwear. Open-toed shoes were not allowed to be worn anywhere on

the premises.

      [¶4] On Saturday, July 8, 2006, Hickson was on duty in the afternoon when

then-Governor John Baldacci was visiting the mill with a State Representative and

others. Scott Beal, Domtar’s environmental health and safety manager at the time,

was with the Governor and his party. The Governor’s party did not check in at the

gate as was customary for visitors, and Hickson noticed when the party walked by
                                                                                   3

at about 1:30 p.m. that the Representative was wearing open-toed sandals, the

Governor and others were wearing street shoes, and no one in the group was

carrying a respirator. Hickson did not leave his post to interrupt the tour but wrote

in the Vescom log book, which his Vescom supervisor, David Norman, usually

reviewed each morning, “Governor + group in Mill—safety concern—No sign in

by anyone—improper footwear.”

      [¶5]     When Norman reviewed the book, he told Hickson that it was

“Domtar’s way.” Beal then spoke with Hickson on July 14 and told Hickson that

he had recognized the issue with the sandals and shoes during the tour, and had

tried to “herd” the members of the group so that they would be safe. Later,

Norman asked Hickson sarcastically if he had gotten the Governor “all

straightened up,” to which Hickson replied, “No.”

      [¶6]     On July 25, Hickson sent Governor Baldacci an email from his

personal email account expressing his concerns about the safety issues that he

noticed.     In the email, he acknowledged that the Governor’s group had been

accompanied by Domtar employees but pointed out that compliance with the safety

standards would assist security officers in the event of an emergency. Although he

noted that he was sending the email from his personal account, he signed the email,

“Sgt. R.C. Hickson Vescom Security.”
4

        [¶7] The Governor’s staff contacted Domtar to inform it about the email.

Upon learning of the email from Domtar, Vescom terminated Hickson’s

employment on July 26. Vescom based its decision in part on the email and

Hickson’s failure to go up the chain of command before sending it, and in part on

two earlier incidents that did not result in formal discipline and were never

recorded in Hickson’s personnel file.

        [¶8] Hickson filed a complaint in the Superior Court on December 8, 2010,

alleging that Vescom had terminated his employment in violation of the

Whistleblowers’ Protection Act.2 After the claim survived Vescom’s motion for

summary judgment, the matter proceeded to a three-day jury trial, held in March

2013. At the close of Hickson’s case-in-chief, Vescom moved for judgment as a

matter of law, and, after all evidence had been presented, the court denied the

motion.

        [¶9] Based on a theory that Hickson’s complaint addressed only a violation

by Domtar or the government officials, Vescom requested the following jury

instructions:

        The Whistleblower Protection Act provides that no employer may
        discharge an employee because the employee, acting in good faith,

    2
      Hickson also alleged that Vescom had illegally failed to provide him with a copy of his personnel
file within ten days after receiving his request in violation of 26 M.R.S. § 631 (2013). Hickson did not,
however, pursue this claim at trial after the court granted summary judgment on the count in Vescom’s
favor. The court interpreted the statute not to provide for an individual right of action and to only
potentially support a claim for equitable relief or attorney fees.
                                                                                5

      reports orally or in writing to the employer or a public body what the
      employee has reasonable cause to believe is a violation of law or rule
      committed or practiced by the employer. Thus, in order to determine
      whether the Plaintiff was discharged in violation of this provision of
      the Whistleblower Protection Act, you must determine two things: one,
      was the employee acting in good faith; and two, did the employee
      report what he reasonably believed to be a violation of law committed
      or practiced by his employer, Vescom Corporation. Reporting a
      violation of law committed by another corporation or by an individual
      unrelated to Vescom is not protected activity.

      The second relevant provision of the Whistleblower Protection Act
      provides that no employer may discharge an employee because the
      employee, acting in good faith, reports to the employer or a public
      body, what the employee has reasonable cause to believe is a
      condition or practice of the employer that would put at risk the health
      or safety of that employee or any other individual. Again, this
      provision requires that you make two determinations: first whether the
      employee was acting in good faith, as I will define that term for you;
      and second, whether the employee reported what he reasonably
      believed to be a condition or practice of the employer, Vescom
      Corporation, that would put the health or safety of any person at risk.
      Reporting an unsafe condition or practice created by another
      corporation or by an individual unrelated to Vescom is not protected
      activity.

(Emphasis added.)

      [¶10] The court declined to give the instructions requested by Vescom.

Instead, the court instructed the jury as follows regarding the Whistleblowers’

Protection Act:

      To prevail upon his Whistleblower Protection Act claim against
      Vescom Corporation, Mr. Hickson must prove each of the following:

             One, that Mr. Hickson made a legally protected whistleblower
      report or reports;
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          And, two, that Mr. Hickson’s legally protected whistleblower
    reports were a substantial motivating factor in . . . Vescom
    Corporation’s decision to terminate his employment on July 25th,
    2006.

           Now in this case the parties do not dispute that Mr. Hickson
    was terminated from his employment with Vescom Corporation and
    that the email he sent to the Governor on July 25, 2006 was a
    substantial motivating factor leading to his termination.

           To find Mr. Hickson made legally protected whistleblower
    reports, he must prove that he had a reasonable, good faith belief that
    he was reporting, orally or in writing, to his employer or to a public
    body what he had a reasonable cause to believe was either: One, a
    violation of a law or rule of this state or the United States; or, two, a
    condition or practice that would put at risk the health or safety of
    Mr. Hickson or any other individual.

           To find that Mr. Hickson engaged in legally protected
    whistleblower activity in sending his July 25, 2006 email to the office
    of the Governor, you must also find that Mr. Hickson first brought the
    alleged violation, condition, or practice to the attention of a person
    having supervisory authority with his employer, and that he allowed
    the employer a reasonable opportunity to correct any such alleged
    violation, condition, or practice. Such prior notice to Mr. Hickson’s
    employer would not be required if Mr. Hickson proves that he had a
    specific reason to believe that reports to his employer would not result
    in promptly correcting the alleged violation, condition, or practice.

           Not every complaint that relates to safety is necessarily a
    legally protected report under the Whistleblower Protection Act. The
    law protects only complaints made in good faith, and only reports
    made with reasonable cause to believe a dangerous condition or
    practice exists. The requirement that a report be made in good faith
    may be met when a report is motivated by a desire to stop the
    dangerous condition or to expose an illegal or unsafe practice. A
    reasonable cause requirement is met only when the employee presents
    evidence showing that he had a subjective belief that a dangerous
                                                                                   7

      condition or practice existed, and that the belief was objectively
      reasonable in that a reasonable person might have believed that a
      dangerous condition or practice existed.

      [¶11] The jury deliberated and returned a unanimous verdict in favor of

Hickson.   The jury awarded Hickson compensatory damages of $35,000 and

punitive damages of $175,000. Vescom again moved for judgment as a matter of

law, asserting again that Hickson’s email was not a legally protected whistleblower

report because it did not address a practice of Vescom. The court denied that

motion and, in the same order, reduced the judgment by the amount of a previous

settlement involving two other parties.     The court entered a judgment in the

amount of $182,747.09 plus interest, costs, and attorney fees.

      [¶12] Vescom timely appealed to us, and the parties agreed to supplement

the record due to some electronic recording or transcription inadequacies. The

court entered an order pursuant to M.R. App. P. 5(e) that added facts to the record.

                                 II. DISCUSSION

A.    Motion for Judgment as a Matter of Law

      [¶13] Vescom contends that it was entitled to a judgment as a matter of law

because the conduct that Hickson reported was not undertaken by Hickson’s

employer, Vescom, and therefore the Act did not apply.

      [¶14] “We review the denial of a motion for judgment as a matter of law to

determine if any reasonable view of the evidence and those inferences that are
8

justifiably drawn from that evidence supports the jury’s verdict.” Budzko v. One

City Ctr. Assocs. Ltd. P’ship, 2001 ME 37, ¶ 9, 767 A.2d 310 (quotation marks

omitted). Here, the question of whether the law entitled Vescom to a judgment in

its favor turns on the interpretation of the Whistleblowers’ Protection Act. We

interpret the statute de novo. Cent. Me. Power Co. v. Devereux Marine, Inc., 2013

ME 37, ¶ 8, 68 A.3d 1262.

      [¶15] “The primary purpose in statutory interpretation is to give effect to the

intent of the Legislature.” Id. (quotation marks omitted). “We examine the plain

meaning of the statutory language seeking to give effect to the legislative intent,

and we construe the statutory language to avoid absurd, illogical, or inconsistent

results.” Id. (quotation marks omitted). In doing so, we “construe the whole

statutory scheme of which the section at issue forms a part so that a harmonious

result, presumably the intent of the Legislature, may be achieved.” Id. (quotation

marks omitted). “All words in a statute are to be given meaning, and no words are

to be treated as surplusage if they can be reasonably construed.” Id. (quotation

marks omitted). Only if the statute is ambiguous do we examine “legislative

history or other extraneous aids in interpretation of a statute.” Id.

      [¶16]    In relevant part, the Whistleblowers’ Protection Act provides as

follows:
                                                                                     9

      No employer may discharge, threaten or otherwise discriminate
      against an employee regarding the employee’s compensation, terms,
      conditions, location or privileges of employment because:

                A. The employee, acting in good faith, or a person acting on
                behalf of the employee, 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, a political subdivision of this State or the
                United States; [or]

                B. The employee, acting in good faith, or a person acting on
                behalf of the employee, reports to the employer or a public
                body, orally or in writing, what the employee has reasonable
                cause to believe is a condition or practice that would put at risk
                the health or safety of that employee or any other individual.
                The protection from discrimination provided in this section
                specifically includes school personnel who report safety
                concerns to school officials with regard to a violent or
                disruptive student . . . .

26 M.R.S. § 833(1).

      Subsection 1 does not apply to an employee who has reported or
      caused to be reported a violation, or unsafe condition or practice to a
      public body, unless the employee has first brought the alleged
      violation, condition or practice to the attention of a person having
      supervisory authority with the employer and has allowed the employer
      a reasonable opportunity to correct that violation, condition or practice.

Id. § 833(2).

      [¶17] Thus, as we have summarized, “To prevail on a [Whistleblowers’

Protection Act] claim, an employee must show that (1) he engaged in activity

protected by the WPA; (2) he experienced an adverse employment action; and (3) a
10

causal connection existed between the protected activity and the adverse

employment action.” Currie v. Indus. Sec., Inc., 2007 ME 12, ¶ 12, 915 A.2d 400.

         [¶18]    Because the statute requires that the conduct must have been

something that the employer would have “a reasonable opportunity to correct” if it

were notified of the conduct before the report to a public body, 26 M.R.S. § 833(2),

it is evident that the Legislature intended that the offending conduct must be

connected to the actions of the employer.                    We stated in Costain v. Sunbury

Primary Care, P.A., 2008 ME 142, 954 A.2d 1051: “Subsections (1)(A), (1)(C),

and (2) of section 833, when read together, unambiguously limit the protection

afforded by the [Act] to (1) employees (2) who report to an employer (3) about a

violation (4) committed or practiced by that employer.” Id. ¶ 8 (footnote omitted).3

         [¶19]    In Costain, a medical office terminated the employment of a

rehabilitation aide because she had, years before she became an employee of the

office, participated in an investigation of a doctor who had worked for the office.

Id. ¶¶ 2-3. We held that the aide’s earlier participation in the investigation was not

a protected action because it “bore no relationship to the employment in which she

was engaged at the time of the investigation. There was no violation alleged

against her then employer.” Id. ¶ 9.

     3
      Subsection (1)(C) of section 833, which was at issue in Costain but is not at issue here, prohibits
discrimination against an employee who “is requested to participate in an investigation, hearing or inquiry
held by that public body, or in a court action.” 26 M.R.S. § 833(1)(C) (2013).
                                                                                11

      [¶20] Vescom argues that Costain must be understood to require that the

offending conduct had to have been committed solely and directly by the employer.

Given the context in which we decided Costain, however, Vescom reads the

language of our decision too narrowly. Neither our opinion nor the statute limits a

whistleblower claim to those reports that are exclusively related to an affirmative

action of the employer. Rather, the relevant provisions of the Act require that the

report must address violations, conditions, or practices that the employer has the

ability and authority to correct, and those violations, conditions, or practices

complained of must bear a direct relationship to the employee’s current employer.

See 26 M.R.S. § 833(1)(A), (B), (2); Costain, 2008 ME 142, ¶¶ 8-9, 954 A.2d 1051.

In other words, the reported offending conduct must be reported by a person who is

then an employee and must be connected to the employer in such a way that the

employer could take corrective action to effectuate a relevant change.

      [¶21] Here, Hickson’s report occurred while he was employed by Vescom

and did bear a “relationship to the employment in which []he was engaged at the

time” of his report. Costain, 2008 ME 142, ¶ 9, 954 A.2d 1051. Hickson reported

a concern about safety that arose when his employer, Vescom, was under contract

to perform safety and security functions at the mill. The evidence before the jury,

and before the court on Vescom’s motion for judgment as a matter of law,

demonstrates that Vescom adopted Domtar’s safety standards for Vescom
12

employees to follow and enforce, and that Hickson was fired in part because he

failed to go further up the chain of command to, as Vescom’s northeast regional

manager testified, “give his supervisor a chance to fix it.” See 26 M.R.S. § 833(2)

(requiring that an employee who makes a report to a public body first report the

issue to a person having supervisory authority with the employer and allow the

employer “a reasonable opportunity to correct” the situation). In this context,

Hickson’s report concerning Vescom falls directly under the Act.

      [¶22] Thus, taking a reasonable view of this evidence and any justifiable

inferences that arise from it, there is adequate support for the jury’s determinations

that the email constituted a legally protected whistleblower report, that Vescom

was in charge of security and safety at the mill, that Vescom’s involvement in the

lapse of security and safety on the date in question was a subject of the email, and

that Hickson brought his concerns to a Vescom supervisor and afforded Vescom “a

reasonable opportunity to correct” the situation. 26 M.R.S. § 833(2); see Budzko,

2001 ME 37, ¶ 9, 767 A.2d 310. The court did not err in denying Vescom’s

motion for judgment as a matter of law.

B.    Jury Instructions

      [¶23] Vescom argues that the court erred in failing to instruct the jury using

the language requested by Vescom.
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      [¶24] On appeal, a party can demonstrate entitlement to a requested jury

instruction if “the instruction was requested and not given by the court and it:

(1) states the law correctly; (2) is generated by the evidence in the case; (3) is not

misleading or confusing; and (4) is not otherwise sufficiently covered in the court’s

instructions.” Clewley v. Whitney, 2002 ME 61, ¶ 8, 794 A.2d 87. “In addition,

the refusal to give the requested instruction must have been prejudicial to the

requesting party.” Id. Because Vescom’s requested instructions were based on an

overly restrictive reading of Costain, 2008 ME 142, ¶ 8, 954 A.2d 1051, and

because the court’s instructions sufficiently covered the statutory language, we

affirm the resulting judgment. See Clewley, 2002 ME 61, ¶ 8, 794 A.2d 87.
14

        The entry is:

                           Judgment affirmed.

____________________________________

On the briefs:

        Arthur J. Greif, Esq., and Julie D. Farr, Esq., Gilbert & Greif,
        P.A., Bangor, for appellant Vescom Corporation

        David G. Webbert, Esq., Johnson & Webbert, LLP, Augusta,
        for appellee Richard C. Hickson


At oral argument:

        Arthur J. Greif, Esq., for appellant Vescom Corporation

        David G. Webbert, Esq., for appellee Richard C. Hickson



Washington County Superior Court docket number CR-2010-34
FOR CLERK REFERENCE ONLY
