MAINE SUPREME JUDICIAL COURT                                         Reporter of Decisions
Decision: 2020 ME 23
Docket:   Ken-19-201
Argued:   December 4, 2019
Decided:  January 30, 2020

Panel:      SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.
Majority:   SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and HUMPHREY, JJ.
Dissent:    JABAR, J.



                               ROLAND PUSHARD III

                                           v.

                        RIVERVIEW PSYCHIATRIC CENTER


ALEXANDER, J.

       [¶1] Roland Pushard III appeals from a summary judgment entered by

the Superior Court (Kennebec County, Stokes, J.) in favor of Riverview

Psychiatric Center on Pushard’s complaint alleging a violation of the

Whistleblowers’ Protection Act, 26 M.R.S. §§ 831-840 (2018). Pushard argues

that there are genuine issues of material fact regarding whether he is entitled

to whistleblower protection based on complaints he made, while employed at

Riverview, about (1) Riverview’s staffing policies; (2) his supervisor’s alleged

mistreatment of another employee; and (3) a potential violation of patient
2

confidentiality pursuant to the Health Insurance Portability and Accountability

Act (HIPAA), see 45 C.F.R. §§ 164.500-.534 (2019). We affirm the judgment.1

                                         I. CASE HISTORY

          [¶2] Viewed in the light most favorable to Pushard, as the party against

whom summary judgment has been granted, the following material facts are

undisputed. See Berry v. Mainestream Finance, 2019 ME 27, ¶ 6, 202 A.3d 1195.

          [¶3] Pushard was the director of nursing at Riverview. His supervisor

was Jay Harper, the superintendent of Riverview. As director of nursing,

Pushard often disagreed with Harper’s staffing decisions and policies. The

parties agree that “[u]nderstaffing was a persistent, ongoing problem at

Riverview for years.” The issue was publicly known and had been discussed by

the media and the Legislature.

          [¶4] To address Riverview’s staffing problems, Harper instituted several

new policies, including replacing mental health workers with acuity

specialists.2 Pushard disagreed with this decision and told Harper that he



    1   To the extent that Pushard raises arguments not discussed in this opinion, we are unpersuaded.
    2The statement of material facts does not explain with any detail the difference between a mental
health worker and an acuity specialist. The statement of material facts says only that Pushard “felt
tha[t] non-CNAs could not provide the range of hands-on care to patients that CNAs could.” “As a
central tenet of summary judgment motion practice, ‘[f]acts not set forth in the statement of material
facts are not in the summary judgment record, even if the fact in question can be gleaned from
affidavits or other documents attached to, and even referred to in portions of, a statement of material
                                                                                                    3

believed the decision threatened the safety of patients and employees because

acuity specialists could not perform all the tasks that mental health workers

could.

         [¶5] Harper also moved two full-time nurse educators to administrative

roles. Although Harper allowed Pushard to hire two new employees to fill the

vacant positions, Pushard eventually hired two part-time nurse educators

because no one who applied for the positions was willing to work full-time.

Pushard told Harper that he disagreed with Harper’s decision to move the

full-time nurse educators because he believed that replacing them with

part-time employees would result in nurse educators spending less time

assisting with patient management, which in turn would create unsafe

conditions for patients and employees.

         [¶6] The record demonstrates that Pushard “did not believe that he was

making Harper or anyone else [at Riverview] aware of anything they were not

already aware of” when he made complaints about Harper’s decisions to hire

acuity specialists and to move the full-time nurse educators to administrative

roles.



fact.’” Berry v. Mainestream Finance, 2019 ME 27, ¶ 7, 202 A.3d 1195 (alteration in original) (quoting
HSBC Bank USA, N.A. v. Gabay, 2011 ME 101, ¶ 22, 28 A.3d 1158).
4

      [¶7] The assistant director of nursing lodged complaints similar to those

made by Pushard. Around the time that Pushard and the assistant director

made these complaints, Harper took away the assistant director’s office and

assigned it to another employee. Pushard also perceived that Harper had

treated the assistant director in a disrespectful manner during meetings.

Pushard complained to Harper, explaining that he thought Harper was

retaliating against the assistant director because of her complaints about

Harper’s staffing decisions.

      [¶8]   In early 2015, Pushard reported to Harper that a Riverview

employee had sent internal hospital documents to a former employee. Pushard

was concerned that the documents contained patient information and that the

release of the information violated HIPAA. Harper reviewed the documents

that were sent to the former employee and referred the matter to Riverview’s

risk management office. The risk management office did not advise Harper that

a HIPAA violation had occurred.

      [¶9] In December 2014, a nurse under Pushard’s supervision sent

Pushard an email detailing her concerns about another nurse, referred to in the

record as “Nurse A.” By April 2015, several employees had reported that Nurse

A was having difficulty performing her duties because of tiredness or
                                                                              5

impairment and that Nurse A was diverting patient medication. At least three

nurses made these allegations directly to Pushard. Pushard discounted the

reports because he believed they originated from an employee who did not like

Nurse A. Nevertheless, Pushard instructed the assistant director to investigate.

The assistant director did not find evidence that Nurse A had diverted

medication. Pushard never made Harper or the Riverview human resources

staff aware of the allegations against Nurse A.

      [¶10] Another employee eventually reported Nurse A directly to the

human resources staff. This report led to an investigation of Nurse A, who was

terminated after Riverview substantiated allegations that she had been sleepy

and inattentive on duty and that she had been overstaying her scheduled

breaks because she would use that time to sleep in her car. Pushard was placed

on administrative leave pending an investigation into whether he knew of the

concerns about Nurse A and whether he acted improperly by failing to relay

those concerns to Harper or to human resources.

      [¶11]       After completing its investigation of Pushard’s conduct,

Riverview’s Human Resources Department concluded the following in a

written report:

      Although he took some action, Mr. Pushard did not report these
      matters to management above him, follow up on the action he had
6

     taken in January 2015, or more closely monitor the on-going
     situation involving Nurse A to ensure that the issues were being
     appropriately addressed. Mr. Pushard asserted that he knew Nurse
     A was sickly, for which he made adjustments to her job in January
     2015 and May 2015, but did not know there were concerns she was
     impaired by drugs at work. However, he didn't follow up on these
     adjustments or any other concerns after January 2015 nor did he
     have other nursing managers actively monitor the situation.

     [¶12] Ricker Hamilton, the deputy director of DHHS, reviewed this

report and informed Pushard that he was recommending Pushard’s

termination. At a Loudermill hearing, Pushard’s termination was upheld. See

Cleveland Bd. of Education v. Loudermill, 470 U.S. 532 (1985) (holding that

certain public sector employees have a due process right to a hearing before

their employment is terminated).

     [¶13]    Pushard filed a complaint with the Maine Human Rights

Commission and received notice of his right to sue. See 5 M.R.S. § 4612(6)

(2018). Pushard then filed the instant action. The court granted Riverview’s

motion for summary judgment, and Pushard timely appealed. See M.R. App. P.

2B(c)(1).

                            II. LEGAL ANALYSIS

     [¶14] We review de novo the grant of a motion for summary judgment.

See Brady v. Cumberland County, 2015 ME 143, ¶ 10, 126 A.3d 1145. Summary

judgment is proper if the moving party is entitled to judgment as a matter of
                                                                                                  7

law because, considering the evidence “in the light most favorable to the party

against whom the summary judgment has been granted,” there is no “genuine

issue of material fact” for a jury to decide. Id.

       [¶15] A WPA claim consists of three elements: “(1) [the employee]

engaged in activity protected by the WPA; (2) [the employee] experienced an

adverse employment action; and (3) a causal connection existed between the

protected activity and the adverse employment action.”                                Id. ¶ 14;

see 26 M.R.S. § 833(1). “If the evidence in the summary judgment record would

allow a jury to find for the employee on each element of the employee’s case,

then the employer is not entitled to summary judgment.” Brady, 2015 ME 143,

¶ 39, 126 A.3d 1145.

       [¶16] Pushard asserts that he engaged in three protected activities that

entitled him to whistleblower protection from adverse employment actions:

(1) complaining about Harper’s staffing decisions; (2) complaining about

Harper’s treatment of the assistant director; and (3) reporting a possible HIPAA

violation. Only the first and third of these claims merit a full discussion.3



   3 Pushard’s argument that he engaged in protected activity when he complained to Harper about
Harper’s mistreatment of the assistant director of Nursing contends that (1) the assistant director
engaged in protected activity when she complained about Harper’s staffing decisions; (2) Harper
violated the WPA when he retaliated against the assistant director by taking away her private office
space and treating her discourteously in meetings; and (3) Pushard’s complaint about Harper’s
conduct was a whistleblower report of his employer’s violation of law pursuant to 26 M.R.S.
8

A.     Complaints About Staffing

       [¶17] As relevant to Pushard’s claim, the WPA applies where

       [t]he 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.

26 M.R.S. § 833(1)(B). In Cormier v. Genesis Healthcare LLC, 2015 ME 161, ¶ 11,

129 A.3d 944, we explained that “[a]lthough this provision is not triggered by

every complaint that relates to safety, it protects employees who, in good faith,

make safety-related complaints when the employee reasonably believes that a

dangerous condition or practice exists.”                  To satisfy the reasonable cause

requirement, an employee must show that he has both “a subjective and

objectively reasonable belief that a dangerous condition or practice exists.” Id.;

see Stewart-Dore v. Webber Hosp. Ass’n, 2011 ME 26, ¶ 11, 13 A.3d 773.




§ 833(1)(A) (2018) (making it unlawful for an employer to take an adverse employment action
against an employee who reports a violation of the law).

   We find no merit to Pushard’s contention. As we will explain, see infra ¶¶ 17-22, neither Pushard’s
nor the assistant director’s complaints about understaffing qualify as protected activity. Even if
Pushard subjectively believed that he was reporting a violation of the WPA when he complained
about Harper’s mistreatment of the assistant director, this is not enough to bring him within the
WPA’s scope. See Galouch v. Dep’t of Prof’l & Fin. Reg., 2015 ME 44, ¶¶ 13-15, 114 A.3d 988 (explaining
that a “subjective belief alone is insufficient to meet the WPA’s reasonable cause requirement”).
                                                                                                 9

       [¶18] Pushard argues that he made whistleblower protected complaints

when he told Harper that replacing mental health workers with acuity

specialists4 and replacing two full-time nurse educators with two-part time

nurse educators compromised patient and employee safety.

       [¶19] Pushard’s staffing complaints were not whistleblower protected

activity because he was not exposing a concealed or unknown safety issue.

Instead, he was simply giving his opinion concerning his supervisor’s attempts

to address well-known problems related to staffing. In Cormier, 2015 ME 161,

¶ 12, 129 A.3d 944, we explained that an employee had presented evidence

sufficient to survive a motion for summary judgment because she had shown

facts “sufficient to support a finding that [she] held a reasonable belief that

staffing levels compromised the safety of the residents and that her complaints

would bring the safety issue to [her employer’s] attention.” (Emphasis added.)

       [¶20] Similarly, the First Circuit has explained that the WPA applies only

if an employee’s “report was made to shed light on and ‘in opposition to’” an

illegal act or unsafe condition. Harrison v. Granite Bay Care, Inc., 811 F.3d 36,



   4 Pushard argued in his brief and at oral argument that acuity specialists are harder to recruit

than are mental health workers and that the resultant delay in hiring contributed to unsafe
conditions caused by understaffing. However, there is no support in the statement of material facts
for this proposition. We must therefore disregard Pushard’s assertion. See Berry, 2019 ME 27, ¶ 7,
202 A.3d 1195.
10

51 (1st Cir. 2016) (emphasis added). Cormier and Harrison thus support the

proposition that an employee does not enjoy whistleblower protection simply

because he disagrees with his employer about whether the employer’s policy

decisions cause safety concerns. Instead, a “report” under the WPA is one that

“would bring the safety issue to the [the employer’s] attention,” Cormier,

2015 ME 161, ¶ 12, 129 A.3d 944, or is “made to shed light on and ‘in opposition

to’” a safety-related concern. Harrison, 811 F.3d at 51.

      [¶21] Pushard’s conduct does not meet that standard because he was

simply engaged in a policy dispute with his employer about how best to handle

Riverview’s staffing issues. That Riverview was understaffed was known to the

public, the Legislature, and Riverview employees. Even if the specific staffing

decisions about which Pushard complained were not widely known, it is

uncontroverted that Pushard “did not believe that he was making Harper or

anyone else aware of anything they were not already aware of.” For this reason,

Pushard was not reporting; he was complaining.

      [¶22] Because Pushard’s complaints about Harper’s staffing decisions

fall well short of being “reports” as that term is used in the WPA, we have no

occasion here to articulate a comprehensive standard for what qualifies as a

protected report. In particular, we decline to adopt an “initial reporter” rule for
                                                                                                    11

WPA cases, as urged by Riverview.5 Under the particular facts of this case,

summary judgment was proper because there is no genuine issue of material

fact as to whether Pushard intended, at the time he made his complaints, to

expose an unknown or concealed safety issue. See Cormier, 2015 ME 161, ¶ 12,

129 A.3d 944; Harrison, 811 F.3d at 48-51.

B.       HIPAA Violation

         [¶23] Pushard also challenges the court’s determinations that (1) his

report of a possible HIPAA violation was not protected activity and (2) even if

it was protected, summary judgment was also warranted on the causation

element of Pushard’s claim. Assuming, without deciding, that the report of a

potential HIPAA violation was protected activity, Pushard has not established

any genuine dispute as to material fact regarding causation.

         [¶24] An employee satisfies the causation element of a WPA claim by

showing that his protected activity “was a substantial, even though perhaps not

the only, factor motivating the employee’s dismissal.”                        Walsh v. Town of

Millinocket, 2011 ME 99, ¶ 25, 28 A.3d 610. The appropriate inquiry is




     In Currie v. Indus. Sec., Inc., 2007 ME 12, ¶ 26 & n.7, 915 A.2d 400, we noted, without resolving,
     5

the argument that an employee cannot maintain a WPA claim if that employee is not the “initial
reporter,” that is, if the employer has already learned of the unsafe condition or practice from some
other source.
12

“whether the record as a whole would allow a jury to reasonably conclude that

the adverse employment action was motivated at least in part by retaliatory

intent.” Brady, 2015 ME 143, ¶ 37, 126 A.3d 1145.

      [¶25] Pushard argues that (1) the temporal proximity between his

report of a HIPAA violation and his suspension and termination suffices to

survive a summary judgment motion on the issue of causation and (2)

Riverview should have concluded that he did nothing wrong in his handling of

the reports about Nurse A, and therefore the reason given by Riverview for his

termination was pretextual.

      [¶26]   Pushard’s pretext argument misses the mark.           In Murray v.

Kindred Nursing Ctrs. West LLC, 789 F.3d 20, 27 (1st Cir. 2015), the First Circuit

explained—and we agree—that “evidence of a decisionmaker’s mistaken

judgment is not dispositive of the question of pretext unless that evidence

would permit the factfinder to conclude that the stated nondiscriminatory

justification for the adverse employment action was either knowingly false or

made in bad faith.”      See also Johnson v. York Hospital, 2019 ME 176,

¶ 25, --- A.3d ---. Pushard does not argue that Hamilton knew that the human

resources report contained false information, that Hamilton relied on the

report in bad faith, or that those who created the report were biased against
                                                                                 13

Pushard because of his report of a HIPAA violation. Moreover, Pushard has not

offered any evidence that would allow a factfinder to reasonably conclude that

Harper, Hamilton, or anyone else at Riverview wanted to manufacture a reason

for Pushard’s termination because of his report of a potential HIPAA violation.

For this reason, Pushard’s pretext argument falls short.

      [¶27]    Therefore, to survive the summary judgment motion as to

causation, Pushard must rely solely on the temporal proximity between his

report of a HIPAA violation and his termination.             In Theriault v. Genesis

Healthcare LLC, 890 F.3d 342, 352 (1st Cir. 2018), the First Circuit rejected a

similar argument, explaining that temporal proximity “is not sufficient, by itself,

to forge a causal link strong enough to create an inference of causation and thus

satisfy [the standard set forth in Brady] in the face of an employer’s asserted

legitimate non-retaliatory reason for the adverse employment action.” We

similarly conclude that, in light of Riverview’s asserted non-retaliatory

justification for its termination decision—specifically, Pushard’s mishandling

of the reports about Nurse A—Pushard has failed to demonstrate the existence

of a triable issue of fact as to the element of causation.

      The entry is:

                   Judgment affirmed.
14




JABAR, J., dissenting.

      [¶28] I respectfully dissent because I believe there are genuine issues of

material fact regarding whether Pushard engaged in protected activity and

whether there was a causal connection between his protected activity and his

termination. See 26 M.R.S. §§ 831-840 (2018).

      [¶29] We review the grant of a motion for summary judgment de novo,

viewing the evidence in the light most favorable to the party against whom the

summary judgment has been granted in order to determine if there is a genuine

issue of material fact. Stewart-Dore v. Webber Hosp. Ass’n, 2011 ME 26, ¶ 8, 13

A.3d 773. A genuine issue of material fact exists when the factfinder must

choose between competing versions of the truth. Id. When the party moving

for summary judgment is the defendant, the burden rests on that party to show

that the evidence fails to establish a prima facie case for the claim. Cormier v.

Genesis Healthcare LLC, 2015 ME 161, ¶ 7, 129 A.3d 944.

      [¶30] The facts set forth by the parties in their nearly 100 pages of

statements of material facts portray different versions of the events taking

place between June 2014, when Pushard was hired as director of nursing, and

June 2015, when he was suspended from his position.
                                                                          15

                          I. PROTECTED ACTIVITY

     [¶31]   A claim for violation of rights established under the Maine

Whistleblowers’ Protection Act (WPA), 26 M.R.S. §§ 831-840, consists of three

elements: (1) that the employee engaged in activity protected by the WPA,

(2) that the employee experienced an adverse employment action, and (3) that

there was a causal connection between the protected activity and the adverse

employment action. Brady v. Cumberland Cty., 2015 ME 143, ¶ 14, 126 A.3d

1145; see 26 M.R.S. § 833(1). The Court focuses on the first element—whether

the employee was involved in protected activity. The Court places great

emphasis on Riverview’s assertion that the complaints that Pushard made

about the staffing levels at Riverview were well known and that therefore

Pushard’s complaints cannot be determined to be “protected activity” within

the meaning of the WPA. See Cormier, 2015 ME 161, ¶ 10, 129 A.3d 944.

A.   Complaints Regarding Staffing

     [¶32]   In his response to Riverview’s statements of material facts,

Pushard asserts that he repeatedly complained that the continuation of the
16

staffing approach by administrator Harper and others in management

endangered both patient and employee health and safety.6

         [¶33] Pushard told Harper that he was concerned that nurses were being

placed in administrative roles instead of on the floor. Specifically, Pushard

complained that removing Nurses Orange and Cote from the patient floor was

endangering         both      patient     and      employee        health     and      safety     in

already-dangerous work situations. He complained that the replacement of

two full-time nurse educators with part-time nurse educators decreased the

availability of nurses on the patient floors. Pushard also argued for the hiring

of more mental health workers rather than acuity specialists, because there

was no provision for acuity specialists rather than mental health workers

under the consent decree that governs Riverview’s operations. He continued

to report and argue for more mental health workers because there was a ratio

of nurses and mental health workers that needed to be maintained under the

consent decree.




     6In Pushard’s response to Paragraph 16 of Riverview’s statement of material facts (“In his
conversations with Harper and others at Riverview about staffing issues, Pushard did not believe that
he was making Harper or anyone else aware of anything they were not already aware of.”), Pushard
stated that he was more outspoken than other employees and “particularly stressed that the
continuation of the staffing approach by Harper and others in management endangered both patient
and employee health and safety.”
                                                                             17

      [¶34] In Cormier, we addressed whether complaints about understaffing

at healthcare facilities may be protected by the WPA:

            Although this provision is not triggered by every complaint
      that relates to safety, it protects employees who, in good faith,
      make safety-related complaints when the employee reasonably
      believes that a dangerous condition or practice exists. A complaint
      is made in good faith if the employee’s motivation is to stop a
      dangerous condition. A complaint is supported by reasonable
      cause when the employee has a subjective and objectively
      reasonable belief that a dangerous condition or practice exists.

2015 ME 161, ¶ 11, 129 A.3d 944 (citation omitted)(quotation marks omitted).

      [¶35] The Court states that “Pushard’s staffing complaints were not

whistleblower protected activity because he was not exposing a concealed or

unknown safety issue. Instead, he was simply giving his opinion concerning

. . . well-known problems related to staffing,” Court’s Opinion ¶ 19, and that

“Pushard was not reporting; he was complaining.” Court’s Opinion ¶ 21. I

disagree.

      [¶36] First, complaints concerning safety may be protected activity, and

the complaints do not need to be in the form of a report in order for them to be

protected. We made it very clear in Cormier that complaints about safety issues

may constitute protected activity. Cormier, 2015 ME 161, ¶¶ 10-16, 129 A.3d

944; see also 26 M.R.S. § 833(1)(B). Second, that the conditions about which
18

Pushard complained were publicly known does not preclude Pushard from

convincing a jury that his complaints are protected by the WPA.

      [¶37] The proposition that complaints about publicly known safety

issues can never be protected activity has been expressly overruled by

Congress. 5 U.S.C.S § 2302(f)(1)(B) (LEXIS through Pub. L. No. 116-91) (“A

disclosure shall not be excluded from subsection (b)(8) [listing WPA protected

activities] because . . . the disclosure revealed information that had been

previously disclosed.”); see also Hartzman v. Wells Fargo & Co., 1:14CV808,

2016 U.S. Dist. LEXIS 18733 at *25-26 (M.D.N.C. Feb. 17, 2016). In Hartzman,

the court refuted the defendant’s contention that the plaintiff’s activity was not

protected because the plaintiff raised public information. The court noted that

Congress had clearly expressed its intent to the contrary:

      Further, several of those cases have since been in effect overruled
      by Congress. For example, Meuwissen v. Department of Interior, 234
      F.3d 9 (Fed. Cir. 2000), held that a public employee was not
      protected under the Whistleblower Protection Act of 1989 (“WPA”)
      when disclosing information that was already publicly known.
      After this holding, Congress expressly overruled this case and
      amended the statute to specifically include disclosures of already
      public information.
                                                                                                19

Hartzman, 1:14CV808, 2016 U.S. Dist. LEXIS 18733 at *25-26 (citation

omitted).7 The WPA protects Pushard’s complaints regarding staffing and

safety, whether the alleged understaffing was publicly known or not.

         [¶38]    Furthermore, the content of Pushard’s complaints was not

necessarily publicly known. The public may have known that Riverview was

operating under a consent decree, and that there were staffing issues, but the

public may not have necessarily known that Riverview was not complying with

the consent decree, and thereby was creating safety issues for patients and

staff.

         [¶39] The Court fails to take into consideration that Riverview was

operating pursuant to a consent decree with the State regarding management

and staffing. Pushard’s complaints regarding understaffing and patient safety

take on special significance because of the existence of the consent decree.

Even though Riverview was under close scrutiny by the courts because of

staffing issues, it does not follow that Riverview’s failure to comply with the

consent decree was publicly known and that noncompliance created safety




   7 See Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, § 101(b)(2)(C)
(2012)(codified at 5 U.S.C.S § 2302(f)(1)(B) (LEXIS through Pub. L. No. 116-91)). The Maine
Whistleblowers’ Protection Act is comparable to its federal counterpart, 5 U.S.C. § 2302. Me. Human
Rights Comm’n v. Me. Dep’t of Veterans’ Servs., 627 A.2d 1005, 1007 (Me. 1993).
20

issues for staff and patients. The issue is not whether Riverview in fact was

violating the consent decree and creating safety issues for patients and staff;

the issue is whether Pushard had a good faith belief of said safety issues and

complained about them to the administration.

      [¶40] Pushard’s version of the facts paints a completely different picture

than the version accepted as fact by the Court. It is up to a jury to decide

whether Pushard’s complaints constituted protected activity. See, e.g., Cormier,

2015 ME 161, ¶¶ 9, 16, 129 A.3d 944 (stating that whether a complaint rises to

the level of a protected activity is a question of fact for the jury to resolve).

B.    Complaints Regarding Treatment of Cutler

      [¶41] In addition to Pushard’s direct complaints of understaffing and

related safety concerns made to the administrator, Harper, he also complained

about the mistreatment of his assistant director of nursing, Colleen Cutler, after

she complained about the same staffing problems. Pushard told Harper that he

believed that Harper’s mistreatment of Cutler was in retaliation for her

complaints about staffing problems. Pushard complained to Harper that he

thought Harper had taken away Cutler’s office in retaliation for Cutler’s

complaints about Harper’s staffing practices. When Pushard moved Cutler into

his office, Harper told Pushard that he disapproved of the move. The complaint
                                                                            21

regarding the mistreatment of his assistant who joined him in his complaints is

part and parcel of Pushard’s complaints about the staffing levels at Riverview.

The action taken by the administration against Cutler must be considered along

with her relationship to Pushard; the content of her complaints, which were the

same as Pushard’s complaints; and the administration’s displeasure with

Pushard’s attempt to support his assistant.

      [¶42] On these facts, a jury could find that Pushard was involved in

protected activity. See Cormier, 2015 ME 161, ¶¶ 9, 16, 129 A.3d 944. A jury

could easily infer that Pushard was engaged in protected activity because his

complaints were related to patient and employee safety and the complaints

involved Riverview’s failure to comply with the consent decree. Pushard has

raised issues surrounding the question of protected activity that should be

submitted to a jury.

C.    Reported HIPAA Violation

      [¶43] The Court decided that there was no causal connection between

Pushard’s reporting of a possible HIPAA violation and his termination. Court’s

Opinion ¶ 27. For purposes of this issue the Court assumed that the activity

was protected activity. The Court held that Pushard “must rely solely on the

temporal proximity between his report of a HIPAA violation and his
22

termination to establish causation.” Court’s Opinion ¶ 27. The Court never

definitively decided that the reporting of the HIPAA violation was protected

activity.

      [¶44] However, this issue surrounding the reporting of a HIPAA violation

cannot be considered in isolation—it must be considered in the context of all

that was going on during the 12 months that Pushard was director of nursing

before his suspension and ultimate termination. More importantly, Pushard’s

reporting of the HIPAA violation, combined with his complaints regarding the

staffing levels and his complaints about the retaliatory treatment of his

assistant who was also complaining about the staffing levels, are all facts upon

which a jury could find that he was involved in protected activity.

                                II. CAUSATION

      [¶45] The trial court and the Court on appeal did not address the

causation issue except as it applies to the reporting of the HIPAA violation.

Court’s Opinion ¶¶ 26-27. The administrative actions taken against Pushard

raise disputes of fact related to the causal connection between Pushard’s

protected activity and his suspension and termination.

      [¶46] “Temporal proximity of an employer’s awareness of protected

activity and the alleged retaliatory action may serve as the causal link for
                                                                                    23

purposes of a prima facie case.” Daniels v. Narraguagus Bay Health Care Facility,

2012 ME 80, ¶ 21, 45 A.3d 722; see also Noviello v. City of Boston, 398 F.3d 76,

86 (1st Cir. 2005) (applying both federal and state employment discrimination

law and reasoning that an adverse condition of employment that “follows hard

on the heels of protected activity . . . often is strongly suggestive of retaliation”);

Oliver v. Dig. Equip. Corp., 846 F.2d 103, 110 (1st Cir. 1988) (interpreting federal

employment discrimination law and stating that evidence that adverse

employment action occurred “soon after” the employee’s known protected

activity is circumstantial proof of a causal connection “because it is strongly

suggestive of retaliation.”).

      [¶47]    We have previously held that temporal proximity between

protected activity and an adverse employment decision may be sufficient for a

WPA claim to survive a motion for summary judgment. See Currie v. Indus. Sec.,

Inc., 2007 ME 12, ¶ 28, 915 A.2d 400 (holding that temporal proximity between

protected activity and termination would be sufficient to infer causation where

the protected activity and the termination occurred within one month of one

another); see also Brady, 2015 ME 143, ¶ 23, 126 A.3d 1145 (“[T]he lack of

temporal proximity, although potentially persuasive, is not dispositive, and in
24

the context of a summary judgment motion it does not compromise a plaintiff’s

prima facie case.”).

      [¶48] Temporal proximity, however, is not the only circumstantial

evidence of causation that Pushard has asserted in his statement of material

facts. He also alleges that he was subject to poor treatment by Harper, a pattern

that built in intensity and culminated in his suspension and termination. In the

context of WPA claims, where causation must often be proved by way of

circumstantial evidence and inference, these are the type of facts that may form

the basis of a prima facie case. See Mesnick v. Gen. Elec. Co., 950 F.2d 816, 828

(1st Cir. 1991) (“There are many sources of circumstantial evidence that,

theoretically, can demonstrate retaliation in a way sufficient to leap the

summary judgment or directed verdict hurdles. These include, but are not

limited to, evidence of differential treatment in the workplace.”); see also Osher

v. Univ. of Me. Sys., 703 F. Supp. 2d 51, 68 (D. Me. 2010) (“Changes in an

employer’s treatment of its employee after the protected conduct can reveal a

causal connection.”).

      [¶49] Pushard was hired as director of nursing in June 2014. His

repeated complaints to Harper began shortly thereafter. The first sign of the

administration’s attitude toward Pushard surfaced in November 2014, when
                                                                                25

Pushard’s assistant director’s office was taken away from her without any

explanation. In February 2015, Pushard was removed from decision-making

regarding the hiring of nurses. To the displeasure of Harper, Pushard allowed

his assistant director to share his office beginning in March 2015. He was

placed on leave in June 2015, approximately one year after his hiring, and his

employment was terminated in October 2015.             Pushard asserts that the

administration’s purported reason for the termination—failure to report

Nurse A—was pretextual. Harper directed the human resources department at

Riverview to launch an investigation of Pushard.

      [¶50] Pushard has asserted sufficient facts from which a jury could find

that Harper’s purported reason for terminating Pushard was mere pretext. See

Trott v. H.D. Goodall Hosp., 2013 ME 33, ¶ 20, 66 A.3d 7 (“[W]hen judges

evaluate a summary judgment record, they should be mindful that what might

initially appear to be a weak case of pretext is not the same as no case.”); see

also Stanley v. Hancock Cty. Comm’rs, 2004 ME 157, ¶¶ 20-21, 864 A.2d 169

(stating that a defendant is entitled to rely on circumstantial evidence of pretext

in making out a prima facie case for a WPA claim).

      [¶51] There are many facts presented in the statements of material facts

that support Pushard’s assertion that the stated reason for his termination was
26

pretextual. Pushard asserts that he took all reasonable steps to monitor the

activity of Nurse A, and in the end the claims against Nurse A—the nurse he

allegedly failed to supervise, monitor and report to the administration—were

only partially substantiated.

                                III. CONCLUSION

      [¶52] In his statement of material facts, Pushard presents many facts

from which a jury could infer that his termination resulted from his repeated

complaints about staffing and safety issues related to the consent decree and

his reporting of a possible HIPAA violation. Because Pushard has presented

facts that, if true, would establish a prima facie case that he engaged in

protected activity and that he was terminated because of that activity, we

should not decide these issues as matters of law. In deciding a motion for

summary judgment, all reasonable inferences must be given to the moving

party, and when reasonable inferences raise issues of material fact, the issues

must be decided by a jury.

      [¶53] I would vacate the trial court’s entry of summary judgment in favor

of Riverview and remand for a jury trial.
                                                                                27

Arthur J. Greif, Esq. (orally), Gilbert & Greif, P.A., Bangor, for appellant Roland
Pushard III

Aaron M. Frey, Attorney General, and Valerie A. Wright, Asst. Att. Gen. (orally),
Office of the Attorney General, Augusta, for appellee Riverview Psychiatric
Center


Kennebec County Superior Court docket number CR-2017-134
For Clerk Reference Only
