A recent decision by the Maine Supreme Judicial Court stands to simplify the summary judgment process in whistleblower retaliation cases, and may make it easier for such claims to be heard by a jury.
Maine’s Whistleblower Protection Act (WPA) provides a remedy for employees who are fired or otherwise subjected to adverse employment action in retaliation for protected whistleblowing activity, such as reporting violations of law. For years, Maine courts have applied a burden-shifting standard in retaliation cases brought pursuant to the WPA. Under this burden-shifting standard, an employee must first produce evidence that he or she engaged in activity protected by the WPA and that the employer took adverse action against the employee because of the employee’s protected activity. The burden then shifts to the employer to present evidence of a legitimate, non-retaliatory reason for its actions. If the employer does so, the burden shifts back to the employee to produce evidence that the reasons offered by the employer are a mere pretext to conceal an unlawful retaliatory motive. This burden-shifting standard was adapted from the U.S. Supreme Court’s 1973 opinion in McDonnell Douglas Corporation v. Green, a racial discrimination case brought under Title VII of the Civil Rights Act of 1964.
In Brady v. Cumberland County, the Law Court reversed course and eliminated the McDonnell Douglas burden-shifting standard for summary judgment motions in WPA retaliation cases. The Court reasoned that the standard is “unnecessary and only serves to complicate a proper analysis of the employee’s claim.” The Court based its reasoning on differences in the plaintiff’s burden in a Title VII racial discrimination case compared to a WPA retaliation case. A plaintiff in a Title VII racial discrimination case must only produce evidence of causation—that is, the employer’s discriminatory motivation—after the employer has produced evidence of a lawful explanation for its adverse action in the second step of the McDonnell Douglas analysis. By contrast, an employee asserting a WPA retaliation claim must present evidence of the employer’s retaliatory motive as one of the elements of the employee’s prima facie case in the first step of the McDonnell Douglas analysis. The second and third steps of the McDonnell Douglas standard, which also focus on evidence of causation, are therefore duplicative in a WPA case.
To survive a motion for summary judgment in a WPA retaliation case after Brady, an employee need only produce sufficient evidence to create a triable issue as to whether the employer took adverse action against the employee because of the employee’s protected activity. In other words, the court is to view the evidence as a whole, rather than through the “compartmentalized” lens of McDonnell Douglas.
The Law Court did not decide whether courts should continue to apply the McDonnell Douglas standard at trial, as opposed to the summary judgment stage. The Court also did not address the continuing vitality of the McDonnell Douglas standard in other cases in which courts have applied it, such as employment discrimination cases brought under the Maine Human Rights Act.
The McDonnell Douglas standard had been criticized in the years leading up to the Law Court’s Brady decision. A minority of the Court, led by now-retired Justice Warren M. Silver, had advocated abandoning the McDonnell Douglas standard for several years. In a 2012 concurrence in Daniels v. Narraguagus Bay Health Care Facility, Justice Silver wrote for a minority of the Court that the McDonnell Douglas standard was “outdated, confusing, and unworkable” at the summary judgment stage, and reiterated this view in a 2013 concurrence in Trott v. H.D. Goodall Hospital.
The Law Court’s decision to abandon McDonnell Douglas may make it more difficult for employers to obtain a judgment short of trial in WPA cases. The decision, however, should ultimately benefit both employers and employees by doing away with a legal standard that had proven difficult for judges and lawyers to apply, and that in some instances had added a layer of extra cost and delay to the pretrial process.
