Brady v. Cumberland Cnty.

• Decision Date: 10 November 2015
• Docket Number: Docket No. And–14–444.
• Citation: 126 A.3d 1145
• Parties: Gerard BRADY v. CUMBERLAND COUNTY.
• Court: Maine Supreme Court

126 A.3d 1145

Gerard BRADY

v.CUMBERLAND COUNTY.

Docket No. And–14–444.

Supreme Judicial Court of Maine.

Argued: May 14, 2015.

Decided: Nov. 10, 2015.

As Amended March 8, 2016.

Jonathan M. Goodman, Esq.(orally), and William K. McKinley, Esq., Troubh Heisler, PA, Portland, for appellantGerard Brady.

Peter T. Marchesi, Esq.(orally), and Cassandra S. Shaffer, Esq., Wheeler & Arey, PA, Waterville, for appelleeCumberland County.

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.

HJELM, J.

[¶ 1]Gerard Brady appeals from a summary judgment entered by the Superior Court(Androscoggin County, Mills, J. ) in favor of Cumberland County on Brady's claim for employment retaliation pursuant to the Maine Whistleblowers' Protection Act (WPA), 26 M.R.S. §§ 831 –840(2014).Brady contends that the court erred when it concluded that he failed to present a prima facie case of retaliation because he had not produced evidence that disciplinary action taken against him was motivated by complaints he made about the investigation of an incident at the Cumberland County jail.Because the record on summary judgment contains evidence on which a jury could reasonably find that the adverse employment action taken against him by the County was substantially motivated at least in part by retaliatory intent, and because we now conclude that the compartmentalized three-step process set out in McDonnell Douglas Corp. v. Green,411 U.S. 792, 802–05, 93 S.Ct. 1817, 36 L.Ed.2d 668(1973), is not an appropriate tool to adjudicate summary judgment motions in WPA retaliation cases, we vacate the judgment.

I.BACKGROUND

[¶ 2] The summary judgment record contains the following evidence seen in the light most favorable to Brady as the non-moving party.SeeAngell v. Hallee,2014 ME 72, ¶ 16, 92 A.3d 1154.Brady has been a detective with the Cumberland County Sheriff's Department's Criminal Investigation Division(CID) since 1994.In late 2002 or early 2003, Brady became licensed to conduct polygraph examinations in Maine.In addition to conducting polygraph examinations in the course of his duties at the Sheriff's Department, Brady started a private polygraph examination company called Forensic Polygraph Services (FPS).He signed a written agreement with the Sheriff's Department that allowed him to conduct the private polygraph business outside of work hours as long as he complied with certain conditions, including not using his County vehicle or other County-owned equipment in connection with FPS.

[¶ 3] In May 2010, a court officer showed Brady and another detective "a video of an inmate being choked out" by a Cumberland County corrections officer at the Cumberland County Jail.Brady was "very surprised" that a corrections officer would use a chokehold, and he commented to the others watching the video with him that "it looks like somebody is going to jail."Approximately two weeks later, Brady brought up the video again in a CID meeting, questioning why nothing had been done about the corrections officer's actions and why the matter had not been referred to CID for investigation.His supervisors, Lieutenant Donald Foss and Sergeant James Estabrook, were present at the meeting, and Foss told Brady that the Department's Internal Affairs Division was conducting an investigation.

[¶ 4] Following the meeting, Brady continued to voice concerns about the incident to his coworkers, and within a week of the meeting, he raised the issue again with Estabrook.Brady believed that the Sheriff's Department was covering up the corrections officer's actions because of the upcoming election for Sheriff.For the most part, Brady did not recall to whom specifically he voiced that theory, but he did remember telling Detective Brian Ackerman that he thought the Department was not investigating the assault because of the election.Brady described Ackerman's response as "something to the effect of you should keep your mouth shut or you're going to get in trouble."Brady also spoke with Lieutenant Joel Barnes, who is in charge of internal affairs investigations for the Department, to discuss the incident and why a criminal investigation had not been opened.Brady did not recall ever speaking to Sheriff Mark Dion, then-Chief Deputy Sheriff Kevin Joyce,¹ or Chief Deputy Sheriff Naldo Gagnon about his concerns.Brady does not recall making any complaints about the incident after approximately July 2010.

[¶ 5] Prior to 2011, Brady had annually reported his polygraph examination statistics to the Department, including the number of examinations he conducted both for the County and as part of his private business.In late 2010, however, after receiving Brady's statistics for that year, Foss told Brady that, going forward, he only wanted him to report the number of examinations that he conducted for the County.In accordance with that directive, at the end of 2011 Brady submitted only his County polygraph statistics, resulting in a significantly lower number of examinations than he had reported in previous years.Foss noticed the decrease in the number of Brady's reported examinations and told Estabrook about the low numbers.Foss and Estabrook then met with Gagnon and Joyce, leading to further scrutiny of Brady's use of County time and resources to conduct polygraph examinations for FPS.On February 8, 2012, Joyce placed Brady on administrative leave and directed that Foss commence a criminal investigation into whether Brady had violated the law by using County resources to conduct his private business.

[¶ 6] At the conclusion of the investigation, Foss determined that on at least one occasion Brady had used a County vehicle to deliver polygraph results to an FPS client and that Brady administered a private polygraph examination on a day when he had called in sick.He also found that Brady had used his "unmanaged comp time" to conduct polygraph examinations for FPS while being paid by the County.²Foss concluded, however, that these departmental policy violations did not amount to probable cause to charge Brady with a crime.Despite that recommendation, Joyce directed that the case be referred to the District Attorney's office for review and possible criminal prosecution.After reviewing the case and seeking input from the Attorney General's office, the District Attorney declined to prosecute Brady.Joyce also submitted Brady's case to the Maine Criminal Justice Academy for review of Brady's law enforcement officer certification, but the Academy declined to take any action.

[¶ 7] Joyce then directed Barnes, who conducts all of the Cumberland County Sheriff's Department's internal affairs investigations, to conduct an investigation into whether Brady violated any Department policies.Barnes determined that Brady had violated his written agreement with the Sheriff's Department and also had funneled revenue away from the County by failing to notify other law enforcement agencies that the Sheriff's Department could perform polygraph examinations at a lower cost than FPS, but Barnes also concluded that Brady's conduct was not criminal.Following a disciplinary hearing where Brady was represented by a union agent and an attorney, Joyce demoted Brady to the position of patrol officer.

[¶ 8] Brady challenged the demotion through the union grievance process, and in March 2013, an arbitration hearing was held.On May 3, 2013, the arbitrator issued an award, finding that the County had just cause to discipline Brady but ordering that he be reinstated to his detective position with back pay.On May 23, 2013, the County terminated Brady's employment because he had been on medical leave for more than a year.The same arbitrator reversed that decision, finding that "at least a portion of the year he was absent ... may not have occurred but for the behavior of the County," and extending the time within which Brady was required to submit medical documentation supporting his fitness to return to duty.Brady returned to work in late August 2013.

[¶ 9] Brady filed a complaint with the Maine Human Rights Commission in September 2012.After receiving a right-to-sue letter in April 2014, see5 M.R.S. § 4612(6)(2014), he filed a complaint against the County in the Superior Court (Androscoggin County) for (1) violation of the Maine Whistleblowers' Protection Act, 26 M.R.S. §§ 831 –840;(2) violation of the Maine Civil Rights Act,5 M.R.S. §§ 4681 –4685(2014);(3) defamation; and (4) interference with advantageous relationship.He also filed a complaint against Joyce and Gagnon in Superior Court (Cumberland County) with the same claims except for the WPA claim.The two actions were consolidated in Androscoggin County.The defendants moved for summary judgment, and, on October 6, 2014, the court granted the motion, entering judgment for all defendants on all counts.Brady timely appealed, challenging the order granting summary judgment on his WPA claim against the County.³

II.DISCUSSION

[¶ 10]"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."Budge v. Town of Millinocket,2012 ME 122, ¶ 12, 55 A.3d 484(quotation marks omitted)."A genuine issue of material fact exists when the factfinder must choose between competing versions of the truth."Dyer v. Dept. of Transp.,

2008 ME 106, ¶ 14, 951 A.2d 821(quotation marks omitted).

[¶ 11] In our previous WPA retaliation cases, we applied the three-step burden-shifting analysis set out in McDonnell Douglas Corp. v. Green,411 U.S. 792, 802–05, 93 S.Ct. 1817, 36 L.Ed.2d 668(1973).See, e.g., Trott v. H.D. Goodall Hosp.,2013 ME 33, ¶ 15, 66 A.3d 7(applying the McDonnell Douglas burden-shifting analysis to a summary judgment motion);DiCentes v. Michaud,1998 ME 227, ¶¶ 14–17, 719 A.2d 509(applying the McDonnell Douglas burden-shifting analysis to the...