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Galouch v. State, Department of Professional and Financial Regulation

Superior Court of Maine, Kennebec

July 22, 2014



Michaela Murphy, JUSTICE.

Before the Court is Defendant's Motion for Summary Judgment with respect to Patricia Galouch's (" Galouch") Complaint alleging violations of the Maine Human Rights Act, 5 M.R.S.A. § § 4551-4633 and the Maine Whistleblowers' Protection Act (" WPA"), 26 M.R.S.A. § 831 et seq . Defendant, the State of Maine Department of Professional & Financial Regulation (the " State"), pursuant to M.R. Civ. P. 56 is seeking judgment as a matter of law on the grounds that the evidence is insufficient to establish a prima facie case under the WP A, and that Galouch has failed to point to enough admissible evidence to create a factual issue for trial on the question of pretext.


On May 15, 2013, the State moved for summary judgment seeking judgment as a matter of law on the ground that the arbitrator's findings were sufficient to establish that the State terminated Galouch's employment for legitimate, non-retaliatory reasons.[1] By the time the State moved for summary judgment, no discovery had taken place on the issue of pretext. Therefore, for this and other reasons the Court concluded in its December 17, 2013 Order that Defendant's motion for summary judgment was premature. The parties then engaged in discovery which is now complete, and the State has moved for summary judgment anew.


Summary judgment is appropriate when the Court's review of the parties' statements of material fact and cited record evidence indicates that there are no genuine issues of disputed material fact, and that the moving party is entitled to judgment as a matter of law. See Dyer v. Dep't of Transp ., 2008 ME 106, ¶ 14, 951 A.2d 821 (citation omitted). Courts consider such evidence in the light most favorable to the non-moving party. See Beal v. Allstate Ins. Co ., 2010 ME 20, ¶ 11, 989 A.2d 733. A fact is material if it has the potential to impact the outcome of the case. See Parrish v. Wright , 2003 ME 90, ¶ 8, 828 A.2d 778 (citation omitted). An issue of fact is genuine when " sufficient evidence requires a fact-finder to choose between competing versions of the truth at trial." Id.

At the summary judgment stage, evaluation of employment discrimination claims made pursuant to the Maine Human Right Act[2] involves a three-step, burden-shifting analysis. Daniels v. Narraguagus Bay Health Care Facility , 2012 ME 80, ¶ ¶ 14-15, 45 A.3d 722 (citing Cookson v. Brewer School Dep't , 2009 ME 57, ¶ 14, 974 A.2d 276; Whitney v. Wal-Mart Stores, Inc ., 2006 ME 37, ¶ 9, 895 A.2d 309). First, an employee must establish a prima facie case of discrimination. Id. Specifically, the employee must show: (1) that she engaged in activity protected by the WPA, (2) that she experienced an adverse employment action, and (3) that a causal connection existed between the protected activity and the adverse employment action. Blake v. State , 2005 ME 32, ¶ 6, 868 A.2d 234, 237 (citation omitted). Once the plaintiff has established a presumption of discrimination, the burden of production, but not of persuasion, " shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action." Doyle v. Dep't Of Human Servs ., 2003 ME 61, ¶ 15, 824 A.2d 48, 54 (quoting Gillen v. Fallon Ambulance Serv., Inc ., 283 F.3d 11, 30 (1st Cir. 2002)). " After the defendant has articulated a nondiscriminatory reason, the burden shifts back to the plaintiff to demonstrate that the nondiscriminatory reason is pretextual or irrelevant and that the unlawful discrimination brought about the adverse employment action." Id.


First, the State argues that Galouch failed to establish a prima facie case for discrimination because: 1) she did not engage in protected activity under WPA; and 2) she failed to establish a causal connection between her alleged protected activity and her termination. The State's argument that Galouch did not engage in protected activity under WPA is based on the premise that WPA requires Galouch to have reasonably perceived the reported activity to be a violation of the law.

Claim of Protected Activity

The relevant portion of the WPA defines protected activity as follows:

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.

In its February 15, 2012 Order denying the State's motion to dismiss, this Court noted that the Law Court has not directly held that a contract violation could never, as a matter of law, constitute an illegal or dangerous activity under WPA. In Bard v. BIW , 590 A.2d 152 (Me. 1991) an employee who was an inspector in the quality assurance program at BIW argued at a non-jury trial that he feared that flaws in BIW's quality assurance programs were contrary to provisions in BIW's contracts with the Navy. The trial court at the close of the employee's case ruled under M.R. Civ. P. 50(d) that the employee failed as a matter of law to establish that he believed that BIW was acting any way illegally. The Court stated that the employee failed to introduce any evidence that the alleged contract violation was also a violation of a federal law or regulations. Id. at 154. He also introduced " no evidence to show that he even subjectively believed that BIW had violated a law or rule as opposed to a mere contract provision." (emphasis added). Id. at 154. Finally, the Court noted that the WPA also requires a plaintiff to produce evidence that " a reasonable person might have believed that the employer was acting illegally." Id. at 155.

In Galouch v. State of Maine , CV-12-175, at 10 (Me. S.Ct. Feb. 15, 2013) this Court essentially concluded that the State's position in the motion to dismiss relied too heavily on the result in Bard , which this Court did not interpret as ruling out as a matter of law the possibility that reporting a contract violation could ever, depending on the circumstances, qualify as protected activity. The Court also held that while the complained-of conduct need not actually be illegal, Galouch had the burden to produce some ...

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