The Maine Whistleblowers' Protection Act prohibits an employer from discriminating against an employee because the employee, acting in good faith and after first bringing an alleged unsafe condition or practice to the attention of the employer and allowing the employer a reasonable opportunity to correct the condition or practice, "reports to the employer or a public body, orally or in writing, what the employee has reasonable cause to believe is a condition or practice that would put at risk the health or safety of that employee or any other individual." 26 M.R.S.A. §833. In the case of DiCentes v. Michaud, 1998 ME 227 (October 7, 1998), the Maine Law Court rejected an employee's claim arising under this statute.

     The DiCentes case involved a public school teacher whose teaching contract was not renewed after a school year. There was no dispute in the case that the teacher had, in fact, engaged in statutorily protected activity. She had voiced concerns to her superiors and subsequently to State officials about what she thought was inadequate and unsafe ventilation in a chemistry lab and an adjacent chemical storage room. Also, there was no dispute in the case that the teacher's contract had not been renewed a few months after she had voiced these concerns. However, the school district denied discriminating against the teacher and claimed that the teacher's contract was not renewed as part of a district-wide reduction-in-force caused by budgetary problems. The teacher claimed that her principal had recommended against her position and that he had done so because of her protected activity. The main issue in the case was whether the teacher could prove that her contract was not renewed because of her protected activity. After a trial, the court found that although the principal had unlawfully recommended against the teacher's position because of her protected activity, the decision to not renew the teacher's contract was made for lawful reasons and not because of the principal's recommendation or in retaliation for the teacher's protected activity. The Maine Law Court affirmed that finding.

     In its decision, the Law Court first held (1) that there is no right to a jury trial on claims arising under the Maine Whistleblowers' Protection Act, (2) that an employer is normally liable under the Act for the acts of the employer's agents, and (3) that claims under the Act should be litigated under the normal McDonnell Douglas framework (under which the employee first must prove a prima facie case, then the employer must articulate and provide some probative evidence of a legitimate and non-discriminatory reason for the action taken, and then "the employee at all times retains the final burden of persuasion on the issue of causation [and other disputed issues]"). The Law Court then affirmed the trial court's finding that the teacher had failed to prove her discrimination claim. Competent evidence in the record supported the trial court's finding that the decision to not renew the teacher's contract was made by the School Committee based on legitimate budget considerations for the reduction-in-force and not based on the principal's tainted recommendation.

     The Law Court's most important holding in the DiCentes case is that the principal's tainted recommendation against the teacher did not make the district or the principal liable to the teacher. The trial court found as a fact that the principal's tainted recommendation did not cause or motivate the non-renewal decision, and therefore the principal's tainted recommendation was not the cause of the teacher's employment loss. The principal was not the decision-maker, the School Committee was. The Committee made the non-renewal decision independently of and unrelated to the principal's recommendation. This case thus shows that evidence against a non-decision-maker is not dispositive proof against a decision-maker. In order to prevail on a discrimination claim, the claimant must prove that the adverse employment decision made by the decision-maker was unlawful, not just that a non-decision-maker had an unlawful motivation or that a non-decision-maker took an action unrelated to the adverse employment decision.

     Finally, the Law Court also held that a failure to give the teacher a letter of recommendation was not a violation of the Act. "The refusal to recommend [the teacher] for future employment simply did not affect the compensation, terms, conditions, location, or privileges of [the teacher's] then existing employment," which is all the Act protects. This is a good holding for employers under the Maine Whistleblowers' Protection Act, but employers should be aware that under other laws, such as the federal employment discrimination laws, the rule may be the opposite. See, Robinson v. Shell Oil Co., 519 U.S. 337 (1997)(former employee may sue a former employer under Title VII's anti-retaliation provision for a negative reference).

DISCLAIMER: All information is provided for educational or promotional purposes only and not as legal advice on a particular matter. The information is provided AS IS with no warranties of accuracy, completeness, merchantability, or fitness for a particular purpose. Providing this information DOES NOT create an attorney-client relationship between Lawrence C. Winger, Esq. and the reader. All information is Copyright (c) Lawrence C. Winger, Esq. 2000 All Rights Reserved.

Dated: January, 2000
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