July 22, 2014
PATRICIA GALOUCH, Petitioner,
STATE OF MAINE, DEPARTMENT OF PROFESSIONAL AND FINANCIAL REGULATION, Respondent
ORDER ON MOTION FOR SUMMARY JUDGMENT
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.
STATEMENT OFF ACTS
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. 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.
STANDARD OF REVIEW
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 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 evidence that a reasonable person might have believed that it was. Id. at 8 (citing Tripp v. Cole , 425 F.3d 5, 9 (1st Cir. 2005)).
The Court would emphasize that by denying the State's motion to dismiss, this Court gave Galouch the opportunity to develop and present some evidence that the alleged contract violation amounted to a violation of law or regulation, or why it was reasonable for Galouch to consider the conduct to be a violation of law. See generally Gammon v. Crisis & Counseling Centers, Inc ., 762 F.Supp.2d 165, 184 (D. Me. 2011) (explaining that in cases where the complained-of conduct is not unjust on its face, plaintiff has the burden to explain how the law applied to the conduct or why it was reasonable to consider the conduct a violation of law). The Court now concludes, after giving Plaintiff this opportunity to develop this evidence, that she failed to establish any such evidence.
The complained-of conduct, an alleged breach or violation by a court reporter of her contract with the State, is not necessarily illegal on its face. Cf. Currie v. Indus. Sec., Inc ., 2007 ME 12, ¶ ¶ 2, 20, 28, 915 A.2d at 402, 406, 407 (reporting employment of workers believed to be unauthorized to work in the United States); Gammon , 762 F.Supp.2d at 184 (reporting that clients were billed for services that had never been provided); Blake v. State , 2005 ME 32, ¶ 6, 868 A.2d 234, 237 (reporting co-worker's improper commingling of funds).
The only law or regulation alleged by Plaintiff to have been violated is Chapter 110 of the Rules For The Purchase Of Services and Awards, which outlines the procedures to be used in the purchase of services and the awarding of grants and contracts pursuant to 5 M.R.S.A. 1825-C. (S.M.F. ¶ 2.) In cases where the complained-of conduct is not manifestly illegal, the First Circuit in Tripp v. Cole , looked at whether the law alleged to have been violated could reasonably be interpreted to apply to the complained-of conduct. 425 F.3d at 10. Plaintiff has not even really attempted to explain how Chapter 110 makes an alleged violation of a court reporter's contract, by the court reporter, into illegal conduct by the employer.
Even more fundamentally, assuming for the sake of argument that Plaintiff subjectively believed the practices at issue were illegal, she has not presented the kind of evidence from which a fact-finder could draw a reasonable inference that it was reasonable for her to believe that unlawful activity was taken by the employer. For the foregoing reasons alone, the State is entitled to summary judgment.
Claim of Pretext
Even if the Court were to find that Galouch raised a triable issue of material fact on the question of whether she engaged in protected activity under WP A, the State's motion for summary judgment would nevertheless be granted because she has failed to show that the State's legitimate, non-retaliatory reasons for terminating her employment were merely pretextual.
Once an employer has articulated a legitimate, nondiscriminatory explanation for the employment decision, an employee can survive a motion for summary judgment by presenting sufficient evidence from which a jury could reasonably conclude that either (1) the circumstances underlying the employer's articulated reason are untrue, or (2) even if true, those circumstances were not the actual cause of the employment decision. Cookson v. Brewer Sch. Dep't , 2009 ME 57, ¶ 16, 974 A.2d 276, 282 (citing Stanley v. Hancock County Comm'rs , 2004 ME 157, ¶ 23, 864 A.2d 169, 177). Although trial courts should exercise caution in resolving issues of pretext on summary judgment in employment discrimination cases, " the presence of the issue of motivation or intent does not relieve the plaintiff of her or his burden of producing evidence sufficient to create a question of fact on that issue." Id. at¶ 17 (quoting Stanley , 2004 ME 157, ¶ 25, 864 A.2d at 178). The employee needs to assert sufficient facts, supported in the summary judgment record, from which a reasonable fact-finder could disbelieve the employer's proffered rationale and conclude that illegal discrimination was the true motivating factor. Id. at ¶ 23 (citations omitted).
Here, Galouch does not claim that the State's articulated reasons are untrue, instead she argues that the circumstances underlying the State's articulated reasons were not the actual cause of the decision to terminate her employment. In support of this argument, Galouch makes the following assertions. First, without citing to any evidence in the record, merely on the basis of her complaint, Galouch alleges that her reports of violations " angered supervisors, " complaints to the supervisors were the motivating factor for her suspension, and that there is a causal connection between Galouch's protected activity and adverse employment action. (Pl.'s Opp'n to Def.'s Mot. Summ. J. 10.) But an employee's assertion of discriminatory animus on the part of an employer will not survive summary judgment if she or he relies on mere " conclusory allegations, improbable inferences, and unsupported speculation." Id. at ¶ 22 (quoting Feliciano de la Cruz v. El Conquistador Resort & Country Club , 218 F.3d 1, 5 (1st Cir.2000)).
Second, Galouch argues that the arbitrator's finding that the State terminated Galouch without " just cause" evidences the State's discriminatory animus. However, the arbitrator's finding of no " just cause" was based purely on the State's failure to follow progressive discipline. In fact, the arbitrator's findings with respect to Galouch's inadequate performance are more relevant on the issue of whether the State's decision was motivated by discriminatory or legitimate reasons. Moreover, an arbitrator's finding of no just cause alone is insufficient to establish pretext for discrimination. Pearson v. Massachusetts Bay Transp. Auth ., 723 F.3d 36, 41 (1st Cir. 2013) Also, according to Galouch, the fact that the State failed to follow progressive discipline measures allows an inference that she was treated differently from her colleagues and that she was subjected to much harsher discipline for her complaints. However, she does not cite to any record evidence to support her claim that she was disciplined " much harsher" than her colleagues. Cf. id . (where an African-American plaintiff produced evidence that a white employee escaped discipline for the same misconduct plaintiff was disciplined for).
Third, as further evidence of pretext, Galouch refers this Court's attention to her 2007-09 performance evaluations, which state that she " met expectations." According to Galouch, these evaluations evidence that the State's claims of her poor performance are inaccurate. But her 2007-08 performance evaluations were revised pursuant to the March 2009 settlement agreement and the 2009 performance evaluation only covered the period from January 6, 2009 to March 15, 2009. (S.M.F. ¶ 15.)
Finally, Galouch asserts that the State's decision to place Galouch on administrative leave constituted " adverse employment action" and therefore, is evidence of the State's discriminatory animus. In Testa v. Town of Madison , the District Court held that a " suspension with pay pending an administrative investigation, or 'administrative leave, ' is generally regarded not to be an adverse employment action." 2005 WL 2365319 (D. Me. Sept. 26, 2005) (citing Singletary v. Mo. Dep't of Corr ., 423 F.3d 886, 891-92 (8th Cir. 2005)) (collecting opinions of the Fourth, Fifth and Sixth Circuits and agreeing with their holdings that paid administrative leave pending investigation is not itself an adverse employment action).
In sum, the evidence presented by Galouch does not get across the line to showing " minimally sufficient evidence" of pretext or discriminatory animus. Pearson v. Massachusetts Bay Transp. Auth ., 723 F.3d 36, 41 (1st Cir. 2013) (" [M]ere questions regarding the employer's business judgment are insufficient to raise a triable issue as to pretext.") (quotations omitted).
The entry will be:
Defendant's Motion for Summary Judgment is GRANTED.