MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2019	ME	54	
Docket:	   Oxf-18-248	
Argued:	   February	6,	2019	
Decided:	  April	11,	2019	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                       MICHAEL	A.	LEE	
                                             	
                                            v.	
                                             	
                                     TOWN	OF	DENMARK	
	
	
SAUFLEY,	C.J.		

       [¶1]		Michael	A.	Lee	appeals	from	a	summary	judgment	entered	by	the	

Superior	Court	(Oxford	County,	Stokes,	J.)	in	favor	of	his	employer,	the	Town	of	

Denmark,	 on	 Lee’s	 claim	 that	 the	 Town	 violated	 Maine’s	 Whistleblowers’	

Protection	Act	(WPA),	26	M.R.S.	§§	831-40	(2018),1	by	suspending	Lee	after	he	

engaged	 in	 WPA	 “protected	 activity.”	 	 Lee	 argues	 that	 the	 court	 erred	 as	 a	

matter	of	law	in	concluding	that	Lee	did	not	engage	in	protected	activity	when	

he	informed	the	Town	that	it	had	breached	his	employment	contract	and	in	so	




    1		The	court	also	granted	summary	judgment	to	the	Town	on	Lee’s	defamation,	slander,	and	unpaid	

wages	claims,	see	26	M.R.S.	§§	664,	670	(2018).		Lee	does	not	appeal	these	portions	of	the	judgment,	
and	we	do	not	discuss	them	further.		See	Holland	v.	Sebunya,	2000	ME	160,	¶	9	n.6,	759	A.2d	205	(“The	
failure	to	mention	an	issue	in	the	brief	or	at	argument	is	construed	as	.	.	.	failure	to	preserve	that	
issue.”).	
2	
     	
doing	 had	 violated	 Maine	 statutes	 and	 the	 Town’s	 charter.	 	 We	 affirm	 the	

judgment.			

         [¶2]	 	 The	 pertinent	 facts	 in	 this	 case	 are	 not	 complicated	 and	 are	

undisputed.		We	draw	the	facts	from	the	parties’	statements	of	material	facts,	

all	 of	 which	 are	 supported	 by	 references	 to	 the	 evidentiary	 record,	 viewing	

them	in	the	light	most	favorable	to	Lee	as	the	nonprevailing	party.		See	Remmes	

v.	Mark	Travel	Corp.,	2015	ME	63,	¶	3,	116	A.3d	466.		

         [¶3]	 	 From	 2003	 to	 2014,	 Lee	 worked	 under	 a	 written	 employment	

contract	with	the	Town	to	serve	as	a	part-time	Code	Enforcement	Officer	(CEO).		

The	contract	provided	that	Lee	was	to	“perform	all	duties	as	specified	by	the	

Law	and	ordinance	and	to	perform	such	other	proper	duties	.	.	.	as	assigned	by	

the	Board	of	Selectmen.”		(Emphasis	added.)			

         [¶4]		In	September	2014,	the	Town’s	newly	hired	Town	Manager	directed	

Lee	to	report	directly	to	him	as	the	Town	Manager,	rather	than	to	the	Board.2		

Lee	 complained	 to	 the	 Town	 Manager	 and	 the	 Board	 that	 the	 directive	 was	

“illegal	and	a	violation”	of	Lee’s	employment	contract	with	the	Town	because	

he	interpreted	the	contract	to	require	that	he	report	to	the	Board,	not	the	Town	


     2		The	dispute	appears	to	have	been	precipitated	by	the	new	Town	Manager’s	request	that,	as	CEO,	

Lee	should	arrange	to	be	available	to	the	public	during	certain	predictable	office	hours	during	each	
month.		Lee	objected	to	that	requirement.		
3	
     	
Manager.		Lee	also	asserted	that	the	CEO	position	was	controlled	by	the	laws	of	

the	State	of	Maine.		See	30-A	M.R.S.	§§	2601,	2601-A,	4451	(2018).			

         [¶5]	 	 In	 April	 2015,	 the	 Board	 of	 Selectmen	 approved	 a	 new	 job	

description	for	the	CEO	position,	which	was	offered	to	Lee.		Lee	objected	to	the	

new	 job	 description,	 stating	 that	 it	 breached	 his	 contract	 and	 “to	 change	 the	

CEO	[j]ob	description,	[the	Town]	would	need	to	form	a	Charter	Commission	

and	then	have	a	public	meeting	to	call	a	special	election.”			

         [¶6]		In	May	2015,	the	Town	Manager	placed	Lee	on	paid	administrative	

leave,	 later	 changing	 it	 to	 leave	 without	 pay	 and	 recommending	 Lee’s	

termination,	 pending	 an	 investigation	 into	 whether	 Lee	 had	 falsified	 work	

hours.		Shortly	thereafter,	the	Town	Manager	resigned,	and	the	Denmark	Board	

of	Selectmen	voted	unanimously	to	rescind	Lee’s	suspension	upon	finding	that	

he	had	not	falsified	his	hours.			

         [¶7]	 	 Lee	 filed	 a	 complaint	 with	 the	 Maine	 Human	 Rights	 Commission	

and,	after	receiving	a	right-to-sue	letter,	see	5	M.R.S.	§	4612(6)	(2018),	he	filed	

a	 complaint	 against	 the	 Town	 in	 the	 Superior	 Court	 (Oxford	 County)	 for	 a	

violation	 of	 the	 Maine	 WPA,	 26	 M.R.S.	 §§	 831-40.	 	 The	 Town	 moved	 for	

summary	 judgment	 pursuant	 to	 M.R.	 Civ.	 P.	 56,	 and	 the	 court	 granted	 the	

Town’s	motion,	concluding	that	Lee	had	not	engaged	in	WPA-protected	activity,	
4	
     	
a	 necessary	 element	 to	 succeed	 in	 a	 WPA	 claim.3	 	 See	 26	 M.R.S.	 §	833(1)(A)	

(2018).		Lee	timely	filed	a	notice	of	appeal.		M.R.	App.	P.	2B(c)(1).	

         [¶8]		Because	the	material	facts	are	not	in	dispute,	we	review	the	court’s	

interpretation	of	the	WPA	de	novo.		See	Remmes,	2015	ME	63,	¶	19,	116	A.3d	

466. To	satisfy	the	first	element	of	a	WPA	claim,	the	record	must	establish	that	

Lee	reported	to	his	employer	what	he	had	reasonable	cause	to	believe	was	his	

employer’s	unlawful	activity.4		See	Galouch	v.	Dep’t	of	Prof’l	&	Fin.	Regulation,	

2015	 ME	44,	 ¶	12,	114	A.3d	988.		“The	 reasonable	cause	requirement	is	met	

only	when	the	employee	presents	evidence	showing	she	had	a	subjective	belief”	

that	 the	 employer	 engaged	 in	 illegal	 activity	 and	 the	 “belief	 was	 objectively	

reasonable	 in	 that	 a	 reasonable	 person	 might	 have	 believed”	 illegal	 activity	

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

(quotation	marks	omitted).	




     3		To	establish	a	prima	facie	claim	of	retaliation	under	section	833	of	the	WPA,	an	employee	must	

“show	 that	 (1)	 he	 engaged	 in	 activity	 protected	 by	 the	 WPA;	 (2)	 he	 experienced	 an	 adverse	
employment	 action;	 and	 (3)	 a	 causal	 connection	 existed	 between	 the	 protected	 activity	 and	 the	
adverse	employment	action.”		Galouch	v.	Dep’t	of	Prof’l	&	Fin.	Regulation,	2015	ME	44,	¶	12,	114	A.3d	
988	(quotation	marks	omitted).		
     4		Here,	the	court	reached	only	the	first	element	in	concluding	that	Lee	did	not	establish	a	prima	

facie	case	of	retaliation,	and	because	we	agree	with	the	court’s	conclusion	on	that	element,	we	also	
do	not	reach	the	second	or	third	element.	
5	
      	
          [¶9]	 	 Notwithstanding	 the	 absence	 of	 explicit	 language	 in	 the	 contract	

regarding	 an	 alleged	 “reporting”	 requirement,5	 Lee	 argues	 that	 the	 Town	

breached	 his	 employment	 contract	 by	 requiring	 him	 to	 report	 to	 the	 Town	

Manager	 as	opposed	to	the	Board	and	by	suggesting	that	a	new	employment	

contract	would	be	imposed	to	clarify	his	reporting	responsibilities,	and	that	“he	

reasonably	believed”	these	alleged	breaches	were	illegal.		He	argues,	in	essence,	

that	 three	 sections	 of	 statute—30-A	 M.R.S.	 §§	2601,	 2601-A,	 4451—and	 the	

CEO	job	description,	formed	by	the	Town’s	charter,	neither	of	which	identifies	

the	person	or	entity	to	whom	the	CEO	must	report,	demonstrate	the	presence	

of	an	illegality.			

          [¶10]	 	 His	 argument	 fails.	 	 As	 we	 have	 previously	 held,	 to	 satisfy	 the	

reasonable	cause	requirement,	the	employee	must	report	something	other	than	

an	 ordinary	 breach	 of	 an	 employment	 contract	 to	 bring	 himself	 within	 the	

provisions	 of	 the	 Whistleblower	 Protection	 Act.	 	 See	 Galouch,	 2015	 ME	 44,	

¶¶	15-16,	114	A.3d	988;	Bard	v.	Bath	Iron	Works	Corp.,	590	A.2d	152,	153-54	




     5	
   	 Pursuant	 to	 the	 contract,	 the	 Board	 has	 the	 authority	 to	 assign	 such	 other	 duties	 to	 Lee.		
(Emphasis	added.)		It	does	not	necessarily	follow	that	the	contract	requires	Lee	to	report	to	the	Board.		
6	
     	
(Me.	 1991).	 	 A	 dispute	 over	 the	 interpretation	 of	 an	 employment	 contract,	

without	more,	as	is	the	case	here,	does	not	constitute	a	report	of	illegal	activity.6	

          [¶11]		Moreover,	even	if	Lee	subjectively	believed	that	the	Town’s	action	

violated	 Maine	 law	 or	 the	 Town’s	 charter,	 his	 “subjective	 belief	 alone	 is	

insufficient	to	meet	the	WPA’s	‘reasonable	cause’	requirement”	because	neither	

the	law	nor	the	charter,	“by	any	reasonable	reading,”	makes	the	Town’s	actions	

unlawful.	 	 See	 Galouch,	 2015	 ME	 44,	 ¶¶	15,	 15	 n.4,	 114	 A.3d	 988	 (quoting	

26	M.R.S.	§	833(1)(A)).		We	affirm	the	court’s	judgment.	

          The	entry	is:	

                            Judgment	affirmed.	

	     	      	      	      	     	
	
Guy	D.	Loranger,	Esq.	(orally),	and	Danielle	Quinlan,	Esq.,	Old	Orchard	Beach,	
for	appellant	Michael	A.	Lee	
	
Tyler	J.	Smith,	Esq.	(orally),	and	Timothy	J.	O’Brien,	Esq.,	Libby	O’Brien	Kingsley	
&	Champion,	LLC,	Kennebunk,	for	appellee	Town	of	Denmark	
	
	
Oxford	County	Superior	Court	docket	number	CV-2016-65	
FOR	CLERK	REFERENCE	ONLY	




     6	 	 This	 does	 not	 mean	 that	 a	 breach	 of	 an	 employment	 contract	 cannot	 also	 constitute	 “illegal	

activity”	for	purposes	of	a	WPA	claim.		For	example,	the	employer’s	breach	of	an	employment	contract	
that	results	in	requiring	the	employee	to	engage	in	a	crime	could	provide	a	basis	for	a	Whistleblower	
action.		This,	however,	is	not	one	of	those	circumstances.		
