MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2020 ME	23

Docket: Ken-19-201

Argued: December	4,	2019

Decided: January	30,	2020

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

Majority: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	and	HUMPHREY,	JJ.

Dissent: JABAR,	J.

ROLAND	PUSHARD	III

v.

RIVERVIEW	PSYCHIATRIC	CENTER

ALEXANDER,	J.

[¶1]		Roland	Pushard	III	appeals	from	a	summary	judgment	entered	by	

the	 Superior	 Court	 (Kennebec	 County,	 Stokes,	 J.)	 in	 favor	 of	 Riverview	

Psychiatric	 Center	 on	 Pushard’s	 complaint	 alleging	 a	 violation	 of	 the	

Whistleblowers’	Protection	Act,	26	M.R.S.	§§	831-840 (2018).		Pushard	argues

that	there	are	genuine	issues	of	material	fact	regarding whether	he	is entitled	

to	whistleblower	protection	based	on	complaints	he	made, while	employed	at	

Riverview,	about (1) Riverview’s staffing	policies;	(2)	his	supervisor’s	alleged	

mistreatment	 of another	 employee;	 and	 (3)	 a	 potential	 violation of	 patient	
2

confidentiality	pursuant	to	the	Health	Insurance	Portability	and	Accountability	

Act	(HIPAA), see	45	C.F.R.	§§	164.500-.534	(2019).		We	affirm	the	judgment.1

I.		CASE	HISTORY

[¶2]		Viewed	in	the	light	most	favorable	to	Pushard,	as	the	party	against	

whom	summary	judgment	has	been	granted,	 the	 following	material	 facts	are	

undisputed.		See	Berry	v.	Mainestream	Finance,	2019	ME	27,	¶	6,	202	A.3d	1195.

[¶3]		Pushard	was	the	director	of	nursing	at	Riverview.		His	supervisor	

was	 Jay	 Harper,	 the	 superintendent	 of	 Riverview.	 	 As	 director	 of	 nursing,	

Pushard	 often disagreed	 with	 Harper’s staffing	 decisions	 and	 policies.	 	 The	

parties	 agree	 that	 “[u]nderstaffing was	 a	 persistent,	 ongoing	 problem	 at	

Riverview	for	years.”		The	issue	was	publicly	known	and	had	been	discussed	by

the	media	and	the	Legislature.		

[¶4]		To	address	Riverview’s	staffing	problems,	Harper instituted	several	

new	 policies,	 including replacing mental	 health	 workers	 with	 acuity	

specialists.2	 	 Pushard	 disagreed	 with	 this	 decision	 and	 told	 Harper	 that	 he	

 1		To	the	extent	that	Pushard	raises	arguments	not	discussed	in	this	opinion,	we	are	unpersuaded.

2		The	statement	of	material	facts	does	not	explain	with	any	detail	the	difference	between	a	mental	

health	worker	and	an	acuity	specialist.		The	statement	of	material	facts	says	only	that	Pushard	“felt	

tha[t]	non-CNAs	could	not	provide	the	range	of	hands-on care	to	patients	 that	CNAs	could.”		“As	a	

central	tenet	of	summary	judgment	motion	practice,	‘[f]acts	not	set	forth	in	the	statement	of	material	

facts	 are	 not	 in	 the	 summary	 judgment	 record,	 even	 if	 the	 fact	 in	 question	 can	 be	 gleaned	 from	

affidavits	or	other	documents	attached	to,	and	even	referred	to	in	portions	of,	a	statement	of	material	
3

believed	the	decision threatened	the	safety	of	patients	and	employees because	

acuity	 specialists	could	not	perform	all	 the	 tasks	 that	mental	health	workers	

could.		

[¶5]		Harper	also	moved two	full-time	nurse	educators	to	administrative	

roles. Although Harper	allowed	Pushard	to	hire two	new	employees to	fill	the	

vacant	 positions,	 Pushard eventually hired	 two	 part-time	 nurse	 educators	

because	 no	 one	who	 applied	 for	 the	 positions	was	willing	 to	work full-time.		

Pushard	 told	 Harper	 that	 he	 disagreed	 with	Harper’s	 decision	 to	 move the	

full-time	 nurse	 educators because	 he	 believed	 that	 replacing	 them	 with

part-time	 employees would	 result	 in	 nurse	 educators spending	 less	 time	

assisting	 with	 patient	 management,	 which	 in	 turn	 would	 create	 unsafe	

conditions	for patients	and	employees.		

[¶6]		The	record	demonstrates	that	Pushard “did	not	believe	that	he	was	

making	Harper	or	anyone	else	[at	Riverview] aware	of	anything	they	were	not	

already	aware	of” when	he made	complaints about	Harper’s	decisions	to	hire	

acuity	specialists	and	to	move	the	full-time	nurse	educators	to	administrative	

roles.

 

fact.’”		Berry	v.	Mainestream	Finance,	2019	ME	27,	¶	7,	202	A.3d	1195	(alteration	in	original)	(quoting	

HSBC	Bank	USA,	N.A.	v.	Gabay,	2011	ME	101,	¶	22,	28	A.3d	1158).		
4

[¶7]		The	assistant	director	of	nursing	lodged complaints	similar	to	those	

made	 by	 Pushard.	 	Around	 the	 time	 that	 Pushard	 and	 the	 assistant	 director

made	 these	 complaints,	Harper	 took	 away	 the	 assistant	director’s office	 and	

assigned	 it	 to	 another	 employee.	 	 Pushard	 also	 perceived that	 Harper	 had	

treated the	 assistant	 director in	 a	 disrespectful	 manner during	 meetings.		

Pushard	 complained	 to	 Harper, explaining	 that	 he	 thought	 Harper	 was	

retaliating	 against	 the	 assistant	 director because	 of	 her	 complaints	 about	

Harper’s	staffing decisions.		

[¶8]	 	 In	 early	 2015,	 Pushard	 reported	 to	 Harper	 that	 a	 Riverview	

employee	had sent internal	hospital	documents	to	a	former	employee.		Pushard	

was	concerned that the	documents contained	patient	information	and	that	the	

release	 of	 the information	 violated	HIPAA.	 	Harper	 reviewed	 the	 documents	

that	were	sent	to	the	former	employee	and	referred	the	matter	to	Riverview’s	

risk	management	office.		The	risk	management office did	not	advise Harper	that	

a	HIPAA	violation	had	occurred.		

[¶9]	 	 In	 December	 2014,	 a nurse	 under	 Pushard’s	 supervision	 sent	

Pushard	an	email	detailing her	concerns	about	another	nurse, referred	to	in	the	

record	as “Nurse	A.”		By	April	2015,	several	employees	had	reported	that	Nurse	

A	 was	 having	 difficulty	 performing	 her	 duties	 because	 of	 tiredness	 or	
5

impairment	and	that	Nurse	A	was	diverting	patient	medication.		At	least	three	

nurses	 made these allegations directly	 to	 Pushard.	 	 Pushard	 discounted	 the	

reports	because	he	believed	they	originated	from	an	employee who	did	not	like	

Nurse	A.		Nevertheless,	Pushard	instructed	the	assistant	director to	investigate.		

The	 assistant	 director did	 not	 find	 evidence	 that	 Nurse	 A	 had	 diverted	

medication.		Pushard	never	made	Harper	 or	the Riverview human	 resources

staff aware	of	the	allegations	against	Nurse	A.		

[¶10]	 	 Another	 employee eventually	 reported	 Nurse	 A	 directly	 to the

human	resources staff.		This	report	led	to	an	investigation	of Nurse	A,	who	was	

terminated	after	Riverview	substantiated	allegations	that	she	had	been	sleepy	

and	 inattentive	 on	 duty and	 that	 she	 had	 been	 overstaying	 her	 scheduled	

breaks	because	she	would	use	that	time	to	sleep	in	her	car.		Pushard	was	placed	

on	administrative	leave	pending	an	investigation	into	whether	he	knew of	the	

concerns	about	Nurse	A and whether	he	acted	improperly	by failing	 to	relay	

those	concerns	to	Harper	or	to	human	resources.		

[¶11]	 	 After	 completing	 its investigation of Pushard’s	 conduct,	

Riverview’s	 Human	 Resources	 Department concluded the	 following in	 a	

written	report:

Although	 he	 took	 some	 action, Mr.	 Pushard	 did	 not	 report	 these	

matters	to	management	above	him,	follow	up	on	the	action	he	had	
6

taken	 in	 January	 2015,	 or	 more	 closely	 monitor	 the	 on-going	

situation	involving	Nurse	 A	 to	ensure	 that	 the	issues	were	being	

appropriately	addressed.		Mr.	Pushard	asserted	that	he	knew	Nurse	

A	was	sickly,	for	which	he	made	adjustments	to	her	job	in	January	

2015	and	May	2015,	but	did	not	know	there	were	concerns	she	was	

impaired	by	drugs	at	work.		However,	he	didn't	follow	up	on	these	

adjustments	or	any	other	concerns	after	January	2015	nor	did	he	

have	other	nursing	managers	actively	monitor	the	situation.

[¶12]	 	 Ricker	 Hamilton,	 the	 deputy	 director	 of	 DHHS,	 reviewed	 this

report	 and	 informed	 Pushard	 that	 he	 was	 recommending	 Pushard’s	

termination.		At	a	Loudermill	hearing,	Pushard’s	termination	was	upheld.		See	

Cleveland	 Bd.	 of	 Education v.	 Loudermill,	 470 U.S.	 532	 (1985) (holding	 that	

certain	public	sector	employees	have	a	due	process	right	 to	a	hearing	before	

their	employment	is	terminated).		

[¶13]	 	 Pushard	 filed	 a	 complaint	 with	 the	 Maine	 Human	 Rights	

Commission	 and	 received	 notice	 of	 his	 right	 to	 sue.	 	 See 5	 M.R.S.	 §	 4612(6)	

(2018).		Pushard	then	filed	the	instant	action.		The	court	granted	Riverview’s	

motion	for	summary	judgment, and	Pushard	timely	appealed.		See M.R.	App.	P.	

2B(c)(1).

II.		LEGAL	ANALYSIS

[¶14]		We review	de	novo	the	grant	of	a	motion	for	summary	judgment.		

See	Brady	v.	Cumberland	County,	2015	ME	143,	¶	10,	126	A.3d	1145.		Summary	

judgment	is	proper	if	the	moving	party	is	entitled	to	judgment	as	a	matter	of	
7

law	because,	considering	the	evidence	“in	the	light	most	favorable	to	the	party	

against	whom	the	summary	judgment	has	been	granted,”	there	is	no	“genuine	

issue	of	material	fact”	for	a	jury	to	decide.		Id.			

[¶15]	 	 A	 WPA	 claim	 consists	 of	 three	 elements:	 “(1)	 [the	 employee]	

engaged	in	activity	protected	by	the	WPA;	(2)	[the	employee]	experienced	an	

adverse	employment	action;	and	(3)	a	causal	connection	existed	between	the	

protected	 activity	 and	 the	 adverse	 employment	 action.”	 	 Id. ¶	 14;	

see 26 M.R.S. § 833(1).		“If	the	evidence	in	the	summary	judgment	record	would	

allow	a	jury	to	find	for	the	employee	on	each	element	of	the	employee’s	case,	

then	the	employer	is	not	entitled	to	summary	judgment.” Brady,	2015 ME 143,	

¶	39,	126	A.3d	1145.		

[¶16]		Pushard asserts	that	he	engaged	in	three protected	activities	that	

entitled	 him	 to	whistleblower	 protection from	 adverse	 employment	 actions:	

(1)	 complaining about	 Harper’s	 staffing	 decisions;	 (2)	 complaining	 about

Harper’s	treatment	of	the assistant	director;	and	(3)	reporting a	possible	HIPAA	

violation.		Only	the	first	and	third	of	these	claims	merit	a	full	discussion.3

 3		Pushard’s argument	that	he	engaged	in	protected	activity	when	he	complained	to	Harper	about	

Harper’s	mistreatment	of	the	assistant	director	of	Nursing	contends	that	(1)	the	assistant	director	

engaged	in	protected	activity	when	she	complained	about	Harper’s	staffing decisions;	 (2)	Harper	

violated	the	WPA	when	he	retaliated	against	the	assistant	director	by	taking	away	her	private	office	

space	 and	 treating	 her	 discourteously	 in	 meetings;	 and	 (3)	 Pushard’s	 complaint	 about	 Harper’s	

conduct	 was	 a	 whistleblower	 report	 of	 his	 employer’s	 violation	 of	 law	 pursuant	 to	 26	 M.R.S.	
8

A. Complaints	About	Staffing	

[¶17]		As	relevant	to	Pushard’s	claim,	the	WPA	applies	where	

[t]he	employee,	acting	in	good	faith,	or	a	person	acting	on	behalf	of	

the	employee,	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.	§	833(1)(B).		In	Cormier	v.	Genesis	Healthcare	LLC,	2015	ME	161,	¶	11,	

129	A.3d	944,	we	explained	that “[a]lthough	this	provision	is	not	triggered	by	

every	complaint	that	relates	to	safety,	it	protects employees	who,	in	good	faith,	

make	safety-related	complaints	when	the	employee	reasonably	believes	that	a	

dangerous	 condition	 or	 practice	 exists.”	 	 To	 satisfy	 the	 reasonable	 cause	

requirement,	 an	 employee	 must	 show	 that	 he	 has	 both	 “a	 subjective	 and	

objectively	reasonable	belief	that	a	dangerous	condition	or	practice	exists.”		Id.;	

see	Stewart-Dore	v.	Webber	Hosp.	Ass’n,	2011	ME	26,	¶	11,	13 A.3d	773.

 

§ 833(1)(A)	 (2018)	 (making	 it	 unlawful	 for	 an	 employer	 to	 take	 an	 adverse	 employment	 action	

against	an	employee	who	reports	a	violation	of	the	law).		

We	find	no	merit	to	Pushard’s	contention.		As	we	will explain,	see	infra ¶¶	17-22,	neither	Pushard’s	

nor	 the	 assistant	 director’s	 complaints	 about	 understaffing	 qualify	 as	 protected	 activity.	 	 Even	 if	

Pushard	subjectively	believed	 that	he	was	 reporting	a	 violation	of	 the	WPA	when	 he	 complained	

about	Harper’s	mistreatment	 of	 the	assistant	director,	 this	is	not	enough	 to	bring	him	within	 the	

WPA’s	scope.		See	Galouch	v.	Dep’t	of	Prof’l	&	Fin.	Reg.,	2015	ME	44,	¶¶	13-15,	114	A.3d	988	(explaining	

that	a	“subjective	belief	alone	is	insufficient	to	meet	the	WPA’s reasonable	cause	requirement”).
9

[¶18]		Pushard	argues	that	he	made	whistleblower	protected	complaints	

when	 he	 told	 Harper	 that	 replacing	 mental	 health	 workers	 with	 acuity	

specialists4 and	 replacing	 two	 full-time	 nurse	 educators	 with	 two-part	 time	

nurse	educators compromised	patient	and	employee safety.		

[¶19]		Pushard’s	staffing	complaints were	not	whistleblower	protected	

activity	 because he	 was	 not	 exposing	 a	 concealed	 or	 unknown	 safety	 issue.		

Instead, he was	simply	giving	his	opinion concerning	his	supervisor’s	attempts	

to	address well-known problems	related	to	staffing. In	Cormier,	2015	ME	161,	

¶	 12,	 129	 A.3d	 944,	we	 explained	 that	 an	 employee	 had	 presented	 evidence	

sufficient	to	survive	a	motion	for	summary	judgment	because	she	had	shown	

facts	 “sufficient	 to	 support	 a	 finding	 that	 [she]	 held	 a	 reasonable	 belief	 that	

staffing	levels	compromised	the	safety	of	the	residents	and	that	her	complaints	

would	bring	the	safety	issue	to	[her	employer’s]	attention.”		(Emphasis	added.)		

[¶20]		Similarly,	the	First	Circuit	has	explained	that	the	WPA	applies	only	

if	an	 employee’s	 “report	was	made	to	 shed	light	 on	 and	 ‘in	 opposition	 to’”	 an	

illegal	act	or	unsafe	condition.		Harrison	v.	Granite	Bay	Care,	Inc.,	811	F.3d	36,	

 4 Pushard	argued in	his	brief	and	at	oral	argument	that	acuity	specialists	are	harder	to	recruit	

than	 are	 mental	 health	 workers	 and	 that	 the	 resultant	 delay	 in	 hiring	 contributed	 to	 unsafe	

conditions	caused	by	understaffing.		However,	there	is	no	support	in	the	statement	of	material	facts	

for	this proposition.		We	must	therefore	disregard	Pushard’s	assertion.		See	Berry,	2019	ME	27,	¶	7,	

202	A.3d	1195.
10

51 (1st	Cir.	2016) (emphasis	added). Cormier and	Harrison thus	support the	

proposition	that	an	employee	does not	enjoy	whistleblower	protection	simply	

because	he disagrees with	his employer	about	whether	the	employer’s	policy	

decisions	cause	safety	concerns.		Instead,	a	“report”	under	the	WPA	is	one	that	

“would	 bring	 the	 safety	 issue	 to	 the	 [the	 employer’s]	 attention,”	 Cormier,	

2015 ME	161,	¶	12,	129	A.3d	944,	or	is	“made	to	shed	light	on	and ‘in	opposition	

to’”	a	safety-related	concern.	 Harrison,	811	F.3d	at	51.

[¶21]		Pushard’s	conduct	does	not	meet	 that	 standard	because	he	was	

simply	engaged	in	a	policy	dispute	with	his	employer	about	how	best	to	handle	

Riverview’s	staffing	issues.		That	Riverview	was	understaffed	was	known	to	the	

public,	the	Legislature,	and	Riverview employees.		Even	if	the	specific	staffing	

decisions about	 which	 Pushard	 complained were	 not	 widely known,	 it	 is

uncontroverted	 that	Pushard	“did	not	believe	 that	he	was	making	Harper	 or	

anyone	else	aware	of	anything	they	were	not	already	aware	of.”		For	this	reason,	

Pushard	was	not	reporting;	he	was	complaining.

[¶22]	 	Because	 Pushard’s	 complaints	 about	Harper’s staffing	decisions

fall	well	short	of	being “reports” as	that	term	is	used	in	the	WPA, we	have	no	

occasion	here	 to articulate a	comprehensive	 standard	 for	what	qualifies	as	 a

protected report.		In	particular,	we	decline	to adopt	an	“initial	reporter” rule	for	
11

WPA	 cases,	 as	 urged	 by	 Riverview.

5	 	Under	 the	 particular	 facts	 of	 this	 case,

summary	judgment	was proper	because	there	is no	genuine	issue	of	material	

fact	as	 to	whether Pushard	intended,	at	 the	 time	he	made	his	complaints,	 to	

expose	an	unknown	or	concealed	safety	issue.		See Cormier,	2015	ME	161,	¶	12,	

129	A.3d	944;	Harrison,	811	F.3d	at	48-51.

B. HIPAA	Violation

[¶23]	 	 Pushard also challenges	 the	 court’s	 determinations that (1) his	

report	of	a	possible	HIPAA	violation was	not	protected	activity and	(2)	even	if	

it	 was protected,	 summary	 judgment	 was	 also	 warranted	 on	 the	 causation	

element	of	Pushard’s	claim.		Assuming,	without	deciding,	 that the	report	of	a	

potential	HIPAA	violation	was protected	activity, Pushard	has	not	established	

any genuine	dispute	as	to material	fact	regarding causation.

[¶24]		An	employee	 satisfies	 the	causation	element	 of	a	WPA	claim	by	

showing	that	his	protected	activity	“was	a	substantial,	even	though	perhaps	not	

the	 only,	 factor	 motivating	 the	 employee’s	 dismissal.”	 	 Walsh	 v.	 Town	 of	

Millinocket,	 2011	 ME	 99,	 ¶	 25,	 28	 A.3d	 610.	 	 The appropriate inquiry	 is	

 5		In	Currie	v.	Indus.	Sec.,	Inc.,	2007	ME	12,	¶	26	&	n.7,	915	A.2d	400, we	noted,	without	resolving,	

the	 argument	 that	an	 employee	 cannot	maintain	a	WPA	 claim	if	 that	 employee	is	 not	 the	 “initial	

reporter,”	that	is,	if	the	employer	has	already	learned	of	the	unsafe	condition	or	practice	from	some	

other	source.
12

“whether	the	record	as	a	whole	would	allow a	jury	to	reasonably	conclude	that	

the	adverse	 employment	action	was	motivated	 at	least	in	part	by	 retaliatory	

intent.”		Brady,	2015	ME	143,	¶	37,	126	A.3d	1145.

[¶25]	 	 Pushard	 argues	 that	 (1)	 the	 temporal	 proximity	 between	 his	

report	 of	 a	 HIPAA	 violation and	 his	 suspension	 and	 termination suffices	 to	

survive	 a	 summary	 judgment	 motion	 on	 the	 issue	 of	 causation	 and	 (2)	

Riverview	should	have	concluded that	he	did	nothing	wrong	in	his	handling	of	

the	reports	about	Nurse	A,	and	therefore	the	reason	given	by	Riverview	for	his	

termination	was	pretextual.		

[¶26]	 	 Pushard’s pretext	 argument	 misses	 the	 mark.	 	 In Murray	 v.	

Kindred Nursing	Ctrs. West	LLC,	789	F.3d	20,	27	(1st	Cir.	2015),	the	First	Circuit	

explained—and	 we	 agree—that “evidence	 of	 a	 decisionmaker’s	 mistaken	

judgment	 is	 not	 dispositive	 of	 the	 question	 of	 pretext	 unless	 that	 evidence	

would	 permit	 the	 factfinder	 to	 conclude	 that	 the	 stated	 nondiscriminatory	

justification	for	the	adverse	employment	action	was	either	knowingly	false	or	

made	 in	 bad	 faith.”	 	 See	 also Johnson	 v.	 York	 Hospital,	 2019 ME	 176,	

¶ 25, --- A.3d ---.		Pushard does	not	argue	that	Hamilton	knew	that	the	human	

resources	 report	 contained	 false	 information,	 that	 Hamilton	 relied	 on	 the	

report	in	bad	 faith,	or	 that	 those	who	created	 the	report	were	biased	against	
13

Pushard because	of	his	report	of	a	HIPAA	violation.		Moreover,	Pushard	has	not	

offered any	evidence	that	would	allow	a	factfinder	to	reasonably	conclude	that	

Harper,	Hamilton,	or	anyone	else	at	Riverview	wanted	to	manufacture	a	reason	

for	Pushard’s	termination	because	of	his	report	of	a	potential	HIPAA	violation.		

For	this	reason,	Pushard’s	pretext argument	falls	short.

[¶27]	 	 Therefore, to	 survive	 the	 summary	 judgment	 motion	 as	 to	

causation,	 Pushard	 must	 rely	 solely	 on	 the	 temporal	 proximity	 between	 his	

report	 of	 a	 HIPAA	 violation	 and	 his	 termination.	 	 In	 Theriault	 v.	 Genesis	

Healthcare	LLC,	890	F.3d	342,	352	(1st Cir. 2018),	the	First	Circuit	rejected	a	

similar argument,	explaining	that	temporal	proximity	“is	not	sufficient,	by	itself,	

to	forge	a	causal	link	strong	enough	to	create	an	inference	of	causation	and	thus	

satisfy	[the	standard	set	forth	in	Brady]	in	the	face	of	an	employer’s	asserted	

legitimate	 non-retaliatory	 reason	 for	 the	 adverse	 employment	 action.”	 	 We	

similarly	 conclude	 that,	 in	 light	 of	 Riverview’s	 asserted	 non-retaliatory	

justification for	its	 termination	decision—specifically,	Pushard’s	mishandling	

of	the	reports	about	Nurse	A—Pushard	has	failed	to	demonstrate	the	existence

of	a	triable	issue	of	fact	as	to	the	element	of	causation.

The	entry	is:

Judgment	affirmed.	
14

JABAR,	J.,	dissenting.

[¶28]		I	respectfully	dissent	because	I	believe	there	are	genuine	issues	of	

material	 fact	 regarding	 whether	 Pushard	 engaged	 in	 protected	 activity	 and	

whether	there	was	a	causal	connection	between	his	protected	activity	and	his	

termination. See 26	M.R.S.	§§	831-840	(2018).

[¶29]		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. Stewart-Dore	v.	Webber	Hosp.	Ass’n,	2011	ME	26,	¶	8,	13	

A.3d	 773.	 	 A	 genuine	 issue	 of	 material	 fact	 exists	 when	 the	 factfinder	 must	

choose	between	competing	versions	of	the	truth.		Id.		When	the	party	moving	

for	summary	judgment	is	the	defendant,	the	burden	rests	on	that	party	to	show	

that	the	evidence	fails	to	establish	a	prima	facie	case	for	the	claim.	 Cormier	v.	

Genesis	Healthcare	LLC,	2015	ME	161,	¶	7,	129	A.3d	944.

[¶30]	 	 The	 facts	 set	 forth	 by	 the	 parties	 in	 their	 nearly	 100	 pages	 of	

statements	 of	 material	 facts portray	 different	 versions	 of	 the	 events	 taking	

place	between	June	2014,	when	Pushard	was	hired	as	director	of	nursing, and	

June 2015,	when	he	was	suspended	from	his	position.	
15

I.		PROTECTED	ACTIVITY

[¶31]	 	 A	 claim	 for	 violation of	 rights	 established	 under	 the	 Maine	

Whistleblowers’ Protection	Act	(WPA), 26	M.R.S.	§§	831-840,	consists	of	three	

elements:	 (1)	 that	 the	 employee	 engaged	 in	 activity	 protected	 by	 the	 WPA,

(2) that	the	employee experienced	an adverse	employment	action,	and	(3)	that	

there	was	a	causal	connection	between	the	protected	activity	and	the	adverse	

employment	action. Brady	v.	Cumberland	Cty., 2015	ME	143,	¶	14,	126	A.3d	

1145;	see 26	M.R.S.	§	833(1).		The	Court	focuses	on	the	first	element—whether

the	 employee	 was	 involved	 in	 protected	 activity.	 The	 Court	 places	 great	

emphasis	 on	 Riverview’s	 assertion	 that	 the	 complaints	 that	 Pushard	 made	

about	 the	 staffing	 levels	 at	 Riverview	 were well	 known and	 that	 therefore	

Pushard’s	complaints	cannot	be	determined	 to	be	“protected	activity” within	

the	meaning	of	the	WPA.		See	Cormier,	2015	ME	161,	¶	10,	129	A.3d	944.	

A. Complaints	Regarding	Staffing

[¶32]	 	 In	 his	 response	 to	 Riverview’s	 statements	 of	 material	 facts,	

Pushard asserts	 that	 he	 repeatedly	 complained	 that	the	 continuation	 of	 the	
16

staffing	 approach	 by	 administrator	 Harper	 and	 others	 in	 management	

endangered	both	patient	and	employee	health	and	safety.6

[¶33]		Pushard	told	Harper	that	he	was	concerned	that	nurses	were	being	

placed	in	 administrative	 roles	instead	 of	on	 the	 floor.	 	 Specifically,	 Pushard	

complained	that	removing	Nurses	Orange	and	Cote	from	the	patient	floor	was	

endangering	 both	 patient	 and	 employee	 health	 and	 safety	 in	

already-dangerous	work	 situations.		He	 complained	 that	 the	 replacement	 of	

two	 full-time	nurse	educators	with	part-time	nurse	educators	decreased	 the	

availability	of	nurses	on	the	patient	floors.		Pushard	also	argued	for	the	hiring	

of	more	mental	health	workers	 rather	 than	acuity	 specialists,	because there	

was	 no	 provision	 for	 acuity	 specialists	 rather	 than	 mental	 health	 workers	

under	the	consent	decree that	governs	Riverview’s	operations.		He	continued	

to	report	and	argue	for	more	mental	health	workers	because	there	was	a	ratio	

of	nurses	and	mental	health	workers	that	needed	to	be	maintained	under	the	

consent	decree.		

 6 In	 Pushard’s response	 to	 Paragraph	 16	 of	 Riverview’s	 statement	 of	 material	 facts	 (“In	 his	

conversations	with	Harper	and	others	at	Riverview	about	staffing	issues,	Pushard	did	not	believe	that	

he	was	making	Harper	or	anyone	else	aware	of	anything	they	were	not	already	aware	of.”),	Pushard	

stated	 that	 he	 was	 more	 outspoken	 than	 other	 employees	 and	 “particularly	 stressed	 that	 the	

continuation	of	the	staffing	approach	by	Harper	and	others	in	management	endangered	both	patient	

and	employee	health	and	safety.”	
17

[¶34]		In	Cormier,	we	addressed	whether	complaints	about	understaffing	

at	healthcare	facilities	may	be	protected	by	the	WPA:	

Although	this	provision	is	not	triggered	by	every	complaint	

that	 relates	 to	 safety,	 it	 protects	 employees	 who,	 in	 good	 faith,	

make	 safety-related	 complaints when	 the	 employee	 reasonably	

believes	that	a	dangerous	condition	or	practice	exists.		A	complaint	

is	 made	 in	 good	 faith	 if	 the	 employee’s	 motivation	 is to	 stop	 a	

dangerous	 condition.	 	 A	 complaint is	 supported	 by	 reasonable	

cause	 when	 the	 employee	 has	 a	 subjective	 and	 objectively	

reasonable	belief	that	a	dangerous	condition	or	practice	exists.			

2015	ME	161,	¶	11,	129	A.3d	944 (citation	omitted)(quotation	marks	omitted).

[¶35]	 	 The	 Court	 states	 that	 “Pushard’s	 staffing	 complaints	 were	 not	

whistleblower	protected	activity	because	he	was	not	exposing	a	concealed	or	

unknown	 safety	issue.		 Instead, he	was	 simply	giving	his	 opinion	concerning	

. . . well-known	 problems	 related	 to	 staffing,”	 Court’s	 Opinion	 ¶	 19,	 and	 that	

“Pushard	 was	 not	 reporting;	 he	 was	 complaining.”	 	 Court’s	 Opinion	 ¶ 21.	 	I	

disagree.	

[¶36]		First,	complaints	concerning	safety	may	be	protected	activity,	and	

the	complaints	do	not	need	to	be	in	the	form	of	a	report	in	order	for	them	to	be	

protected.		We	made	it	very	clear	in	Cormier that complaints about	safety	issues	

may	constitute	protected	activity.		Cormier,	2015	ME	161,	¶¶ 10-16,	129	A.3d	

944;	see also 26	M.R.S.	§	833(1)(B).		Second,	 that	 the	conditions	about	which	
18

Pushard	 complained	 were	 publicly	 known	 does	 not	 preclude	 Pushard	 from	

convincing	a	jury	that	his	complaints	are	protected	by	the WPA.	

[¶37]	 	 The	 proposition	 that	 complaints	 about	 publicly	 known	 safety	

issues	 can	 never	 be	 protected	 activity	 has	 been	 expressly	 overruled	 by	

Congress.	 	 5	 U.S.C.S	 §	 2302(f)(1)(B)	 (LEXIS	 through	 Pub.	 L.	 No.	 116-91)	 (“A	

disclosure	shall	not	be	excluded	from	subsection	(b)(8)	[listing	WPA	protected	

activities]	 because	 .	 .	 .	 the	 disclosure	 revealed	 information	 that	 had	 been	

previously	 disclosed.”);	see	 also	 Hartzman	 v.	 Wells	 Fargo	 &	 Co.,	 1:14CV808,	

2016	U.S.	Dist.	LEXIS	18733	at	*25-26	(M.D.N.C.	Feb.	17,	2016).		In Hartzman,	

the	court	refuted	the	defendant’s	contention	that	the	plaintiff’s	activity	was	not	

protected	because	the	plaintiff	raised	public	information.		The	court	noted	that	

Congress	had	clearly	expressed	its	intent	to	the	contrary:	

Further,	several	of	those	cases	have	since	been	in	effect	overruled	

by	Congress.	For	example,	Meuwissen	v.	Department	of	Interior,	234	

F.3d	 9	 (Fed.	 Cir.	 2000),	 held	 that	 a	 public	 employee	 was	 not	

protected	under	the	Whistleblower	Protection	Act	of	1989	(“WPA”)	

when	 disclosing	 information	 that	 was	 already	 publicly	 known.		

After	 this	 holding,	 Congress	 expressly	 overruled	 this	 case	 and	

amended	the	statute	to	specifically	include	disclosures	of	already	

public	information.	
19

Hartzman,	 1:14CV808,	 2016	 U.S.	 Dist.	 LEXIS	 18733	 at *25-26	 (citation	

omitted).7	 	 The	 WPA	 protects	 Pushard’s	 complaints	 regarding	 staffing	 and	

safety,	whether	the	alleged	understaffing	was	publicly	known	or	not.	

[¶38]	 	 Furthermore,	 the	 content	 of	 Pushard’s	 complaints	 was	 not	

necessarily	publicly	known.		The	public	may	have	known	that	Riverview	was	

operating	under	a	consent	decree,	and	that	there	were	staffing	issues,	but	the	

public may	not	have	necessarily	known that	Riverview	was	not	complying	with	

the	 consent	 decree,	 and	thereby	 was	 creating	 safety	 issues for	 patients	 and	

staff.		

[¶39]	 	 The	 Court	 fails	 to	 take	 into	 consideration	 that Riverview	 was	

operating	pursuant	to	a	consent	decree	with	the	State	regarding	management	

and	staffing. Pushard’s complaints	regarding	understaffing	and	patient	safety	

take	 on	 special	 significance	 because	 of	 the	 existence	 of	 the	 consent	 decree.		

Even	 though	 Riverview	 was	 under	 close	 scrutiny	 by	 the	 courts	 because	 of	

staffing	issues,	it	does	 not	 follow	 that	Riverview’s	 failure	 to	comply	with	 the

consent	 decree	 was	 publicly	 known	 and	 that	 noncompliance	 created	 safety	

 7 See Whistleblower Protection	Enhancement	Act	of	2012,	Pub.	L.	No.	112-199,	§	101(b)(2)(C)	

(2012)(codified	 at	 5 U.S.C.S § 2302(f)(1)(B) (LEXIS	 through	 Pub.	 L.	 No.	 116-91)).	 	 The	 Maine	

Whistleblowers’	Protection	Act	is	comparable	to	its	federal	counterpart,	5	U.S.C.	§	2302.	 Me. Human	

Rights	Comm’n	v.	Me. Dep’t	of	Veterans’	Servs.,	627	A.2d	1005,	1007	(Me.	1993).
20

issues	 for	 staff	and	patients.	 The	issue	is	not	whether	Riverview	in	 fact	was	

violating	 the	consent	decree	and	creating	safety	issues	 for	patients	and	staff;	

the	issue	is	whether	Pushard	had	a	good	faith	belief	of	said	safety	issues	and	

complained	about	them	to	the	administration.

[¶40]		Pushard’s	version	of	the	facts	paints	a	completely	different	picture	

than	 the	 version	 accepted	 as	 fact	 by	 the	 Court.	 	 It is	 up	 to	 a	 jury	 to	 decide	

whether	Pushard’s	complaints	constituted	protected	activity.		See,	e.g., Cormier,	

2015	ME	161,	¶¶ 9,	16,	129	A.3d	944 (stating	that	whether	a	complaint	rises	to	

the	level	of	a	protected	activity	is	a	question	of	fact	for	the	jury	to	resolve).		

B. Complaints	Regarding	Treatment	of	Cutler

[¶41]	 	In	 addition	 to	 Pushard’s	 direct	 complaints	 of	 understaffing	 and	

related	safety	concerns made	to	the	administrator,	Harper, he also	complained	

about	the	mistreatment	of his	assistant	director	of	nursing,	Colleen	Cutler, after	

she	complained	about	the	same	staffing	problems.	 Pushard	told	Harper	that	he	

believed	 that	 Harper’s	 mistreatment	 of	 Cutler	 was	 in	 retaliation	 for	 her	

complaints	 about	 staffing	 problems.	 	 Pushard	 complained	 to	 Harper	 that	 he	

thought	 Harper	 had	 taken	 away	 Cutler’s	 office	 in	 retaliation	 for	 Cutler’s

complaints	about	Harper’s staffing	practices. When	Pushard	moved	Cutler	into	

his	office,	Harper	told	Pushard	that	he	disapproved	of	the	move.		The	complaint	
21

regarding	the	mistreatment	of	his	assistant	who	joined	him	in	his	complaints	is	

part	and	parcel	of	Pushard’s	complaints	about	the	staffing	levels	at	Riverview.	

The	action	taken	by	the	administration	against	Cutler must	be	considered	along	

with	her	relationship	to	Pushard; the	content	of	her	complaints, which	were	the	

same	 as	 Pushard’s	 complaints; and	 the	 administration’s	 displeasure	 with	

Pushard’s	attempt	to	support	his assistant.

[¶42]	 	 On	 these	 facts, a	 jury	 could	 find	 that	 Pushard	 was	 involved	 in	

protected	activity.		See	Cormier,	2015	ME	161,	¶¶	9,	16,	129	A.3d	944.		A	jury	

could	easily	infer	that	Pushard	was	engaged	in	protected	activity because	his	

complaints	 were	 related	 to	 patient	 and	 employee	 safety	 and	 the	 complaints	

involved	Riverview’s	failure	to	comply	with	the consent	decree.		Pushard	has	

raised	 issues	 surrounding	 the	 question	 of	 protected	 activity	 that	 should	 be	

submitted	to	a	jury.		

C. Reported	HIPAA	Violation

[¶43]		The	Court	decided	that	there	was	no	causal	connection between	

Pushard’s	reporting	of	a	possible	HIPAA	violation	and	his	termination.	 Court’s	

Opinion	¶	27.		For	purposes	of	 this	issue	 the	Court	assumed	 that	 the	activity	

was	protected	activity.	 The	Court	held	 that	Pushard	“must	rely	solely	on	 the	

temporal	 proximity	 between	 his	 report	 of	 a	 HIPAA	 violation	 and	 his	
22

termination	 to	 establish	 causation.”	 Court’s	Opinion	 ¶	 27.	 	The	 Court	 never	

definitively	 decided	 that	 the	 reporting	 of	 the	HIPAA	 violation	was	 protected	

activity.

[¶44]		However,	this	issue	surrounding	the	reporting	of	a	HIPAA	violation	

cannot	be	considered	in	isolation—it	must	be	considered	in	the	context	of	all	

that	was	going	on	during	the	12 months	that	Pushard	was	director	of	nursing	

before	his	suspension	and	ultimate	termination.		More	importantly,	Pushard’s	

reporting	of	the	HIPAA	violation,	combined	with	his	complaints	regarding	the	

staffing	 levels	 and	 his	 complaints	 about	 the	 retaliatory	 treatment	 of	 his	

assistant	who	was	also	complaining	about	the	staffing	levels,	are	all	facts	upon	

which	a	jury	could	find	that	he	was	involved	in	protected	activity.			

II.		CAUSATION

[¶45]	 	 The	 trial	 court	 and	 the	 Court	 on	 appeal	 did	 not	 address	 the	

causation	 issue	 except	 as	 it	 applies	 to	 the	 reporting	 of	 the	 HIPAA	 violation.	

Court’s	Opinion	¶¶	26-27.		The	administrative	actions	 taken	against	Pushard	

raise	 disputes	 of	 fact	 related	 to	 the	 causal	 connection	 between	 Pushard’s	

protected	activity	and	his	suspension	and	termination.		

[¶46]	 	“Temporal	 proximity	 of	 an	 employer’s	 awareness	 of	 protected	

activity	 and	 the	 alleged	 retaliatory	 action	 may	 serve	 as	 the	 causal	 link	 for	
23

purposes	of	a	prima	facie	case.”		Daniels	v.	Narraguagus	Bay	Health	Care	Facility,	

2012	ME	80,	¶	21,	45	A.3d	722;	see	also Noviello	v.	City	of	Boston,	398	F.3d	76,	

86	(1st	Cir.	2005) (applying	both	federal	and	state	employment	discrimination	

law	and	reasoning	that	an	adverse	condition	of	employment	that	“follows	hard	

on	the	heels	of	protected	activity	.	.	.	often	is	strongly	suggestive	of	retaliation”);	

Oliver	v.	Dig.	Equip.	Corp.,	846	F.2d	103,	110	(1st	Cir.	1988)(interpreting	federal	

employment	 discrimination	 law	 and	 stating	 that	 evidence	 that	 adverse	

employment	 action	 occurred	 “soon	 after” the	 employee’s	 known	 protected	

activity	is	 circumstantial	 proof	 of	 a	 causal	 connection	“because	it	is	 strongly	

suggestive	of	retaliation.”).	

[¶47]	 	 We	 have	 previously	 held	 that	 temporal	 proximity	 between	

protected	activity	and	an	adverse	employment	decision	may	be	sufficient	for	a	

WPA	claim	to	survive	a	motion	for	summary	judgment.		See	Currie	v.	Indus.	Sec.,	

Inc.,	2007	ME	12,	¶	28,	915	A.2d	400 (holding	that	temporal	proximity	between	

protected	activity	and	termination	would	be	sufficient	to	infer	causation	where	

the	protected	activity	and	the	termination	occurred	within	one	month	of	one	

another);	see	 also Brady,	 2015	 ME	 143,	 ¶	 23,	 126	 A.3d	 1145 (“[T]he	 lack of	

temporal	proximity,	although	potentially	persuasive,	is	not	dispositive,	and	in	
24

the	context	of	a	summary	judgment	motion	it	does	not	compromise	a	plaintiff’s	

prima	facie	case.”).	

[¶48]	 	 Temporal	 proximity,	 however,	 is	 not	 the	 only	 circumstantial	

evidence	 of	causation	 that	Pushard	has	asserted	in	his	 statement	 of	material	

facts.		He	also	alleges	that	he	was	subject	to	poor	treatment	by	Harper,	a	pattern	

that	built	in	intensity	and	culminated	in	his	suspension	and	termination.		In	the	

context	 of	 WPA	 claims,	 where	 causation	 must	 often	 be	 proved	 by	 way	 of	

circumstantial	evidence	and	inference,	these	are	the	type	of	facts	that	may	form	

the	basis	of	a	prima	facie	case.		See	Mesnick	v.	Gen. Elec. Co.,	950	F.2d	816,	828	

(1st	 Cir.	 1991) (“There	 are	 many	 sources	 of	 circumstantial	 evidence	 that,	

theoretically,	 can	 demonstrate	 retaliation	 in	 a	 way	 sufficient	 to	 leap	 the	

summary	 judgment	 or	 directed	 verdict	 hurdles.	 These	 include,	 but	 are	 not	

limited	to,	evidence	of	differential	treatment	in	the	workplace.”);	see	also	Osher	

v.	 Univ.	 of	 Me.	 Sys.,	 703	 F. Supp. 2d	 51,	 68	 (D.	 Me.	 2010) (“Changes	 in	 an	

employer’s	treatment	of	its	employee	after	the	protected	conduct	can	reveal	a	

causal	connection.”).	

[¶49]	 	 Pushard	 was	 hired	 as director	 of	 nursing	 in	 June	 2014.	 His	

repeated	complaints	to	Harper	began	shortly	thereafter. The	first	sign	of	the	

administration’s	 attitude	 toward	Pushard	 surfaced	in	November 2014,	when	
25

Pushard’s	 assistant	 director’s office	 was	 taken	 away	 from	 her	 without	 any	

explanation. In	February	2015,	Pushard	was	removed	 from	decision-making	

regarding	the	hiring	of	nurses.	 To	the	displeasure	of	Harper,	Pushard	allowed	

his	 assistant	 director to	 share	 his	 office	 beginning	 in	 March 2015.	 He	 was	

placed	on	leave	in	June	2015,	approximately	one year	after his	hiring,	and	his	

employment	 was	 terminated	 in	 October	 2015. Pushard	 asserts	 that	 the	

administration’s	 purported	 reason	 for	 the	 termination—failure	 to	 report	

Nurse A—was	pretextual. Harper	directed	the	human	resources	department	at	

Riverview	to	launch	an	investigation	of	Pushard.		

[¶50]		Pushard	has	asserted	sufficient	facts	from	which	a	jury	could	find	

that	Harper’s	purported	reason	for	terminating	Pushard	was	mere	pretext.		See	

Trott	 v.	 H.D.	 Goodall	 Hosp.,	 2013	 ME	 33,	 ¶	 20,	 66	 A.3d	 7 (“[W]hen	 judges	

evaluate	a	summary	judgment	record,	they	should	be	mindful	that	what	might	

initially	appear	to	be	a	weak	case	of	pretext	is	not	the	same	as	no	case.”);	see	

also	 Stanley	 v.	Hancock	 Cty.	 Comm’rs,	2004	ME	 157,	 ¶¶	 20-21,	 864	 A.2d	 169

(stating that	a	defendant	is	entitled	to	rely	on	circumstantial	evidence	of	pretext	

in	making	out	a	prima	facie	case	for	a	WPA	claim).	

[¶51]		There	are	many	facts	presented	in	the	statements	of	material	facts

that	support	Pushard’s	assertion	that	the	stated	reason	for	his	termination	was	
26

pretextual.		Pushard	asserts	 that	he	 took	all	 reasonable	 steps	 to	monitor	 the	

activity	of	Nurse	A,	and	in	 the	end	 the	claims	against	Nurse	A—the	nurse	he	

allegedly	failed	to	supervise,	monitor	and	report	to	the	administration—were

only	partially	substantiated.		

III.		CONCLUSION

[¶52]	 	In	 his	 statement	 of	material	facts, Pushard presents many	 facts	

from	which	a	jury	could	infer	that	his	termination	resulted	from his repeated	

complaints	about	staffing	and	safety	issues	related	to	the	consent	decree	and	

his	 reporting	 of	a	 possible	HIPAA	 violation.	 Because	Pushard	has	 presented	

facts	 that,	 if	 true,	 would	 establish	 a	 prima	 facie	 case	 that	 he	 engaged	 in	

protected	 activity	 and	 that	 he	 was	 terminated	 because	 of	 that	 activity, we	

should	 not	 decide	 these	 issues	 as	 matters	 of	 law.	 	 In	 deciding	 a	 motion	 for	

summary	 judgment,	 all	 reasonable	 inferences	 must	 be	 given	 to	 the	 moving	

party,	and	when	reasonable	inferences	raise	issues	of	material	fact,	the	issues	

must	be	decided	by	a	jury.

[¶53]		I	would	vacate	the	trial	court’s	entry	of	summary	judgment	in	favor	

of	Riverview	and	remand	for	a	jury	trial.		
27

Arthur	J.	Greif,	Esq. (orally),	Gilbert	&	Greif,	P.A.,	Bangor,	for	appellant	Roland	

Pushard	III

Aaron	M.	Frey,	Attorney	General,	and	Valerie	A.	Wright,	Asst.	Att.	Gen. (orally),	

Office	 of	 the	 Attorney	 General,	 Augusta,	 for	 appellee	 Riverview	 Psychiatric	

Center

Kennebec	County	Superior	Court	docket	number	CR-2017-134

For	Clerk	Reference	Only