MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 20 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	ar gues 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	 patient2 confidentiality	pursuant	to	the	Health	Insurance	Portability	and	Accountability Act	(HIPAA) , s ee 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 d irector	of n u rsing	at	Riverview.		His	supervisor was	 Jay	 Harper,	 the s uperintendent	 of	 Riverview. As d irector	 of n ursing, 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 replac ing 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	o ther	documents	attached	to,	and	even	referred	to	in	portions	of,	a	statement	of	material3 believed the	decision threatened	the	safety	of	patients	and	employees because acuity	 specialists	could	not	perform	all	 the	 tasks	 that	mental	heal th	workers could

. [¶ 5 ] Harper	also	move d 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	 on e	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 ] T he	record	demonstrates	that	Pushard “ did	not	believe	that	he	was making	Harper	or	anyone	else [ at	Riverview ] a ware	of	anything	they	were	not already	aware	of ” w hen 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	Fin ance ,	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 a ssistant d irector	of n ursing lodged complaints	similar	to	those made	 by	 Pushard. Around	 the	 time	 that	 Pushard	 and	 the a ssistant d irector made	 these	 complaints ,	Harper	 took	 away	 the a ssistant d irector’s office	 and assigned	 it	 to	 another	 employee.	 	 Pushard also perceived that	 Harper	 had

trea ted the a ssistant d irector in	 a	 disrespectful	 manner during	 meetings

. Pushard	 complained	 to	 Harper , explaining	 that	 he	 thought	 Harper	 was retaliating	 against	 the a ssistant d irector because	 of	 her	 complaints	 about Harper’s staffing decisions

. [¶ 8 ]	 	 In	 ea rly	 2015,	 Pushard	 reported	 to	 Harper	 that	 a	 Riverview employee had se nt internal	hospital	documents	to	a	former	employee.		Pushard was	concerned that the	documents contained	patient	information	and	that	the release	 of	 th e information	 violated	HIPAA.	 	Harpe r	 reviewed	 the	 documents that	were	sent	to	the	former	employee	and	referred	the	matter	to	Riverview’s

r isk m anagement	office. The r isk m anagement 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	 or5 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	a n	employee who	did	not	like
Nurse	A.		Ne verth e le s s,	Pushard	instructed	the a ssistant d irector to	investigate. The a ssistant d irector 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	Nur se	A. [¶1 0 ]	 	 A nother	 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 im properly by failing	 to	relay those	concerns	to	Harper	or	to	human	resources. [¶1 1 ] After	 completing its investigation of Pushard ’s	 conduct , Riverview’s H uman R esources D epartment 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	had6 taken	 in	 January	 20 1 5,	 or	 more	 closely	 monitor	 the	 on

- going situation	involving	Nurse	 A	 to	ensure	 that	 the	issues	were	being appropriately	addressed.		Mr.	Pus hard	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	co ncerns	after	January	2015	nor	did	he have	other	nursing	managers	actively	monitor	the	situation. [¶1 2 ]	 	 Ricker	 Hamilton,	 the d eputy d irector	 of	 DHHS,	 reviewed	 th is report	 and	 informed	 Pushard	 that	 he	 was	 recommending	 Pushard’s
termination.		At	a Loudermill hearing,	Pushard’s	termination	was	upheld. See Cleveland	 Bd.	 of	 Educ ation 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)

. [¶1 3 ] Pu shard	 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	a ppealed. See M.R.	App. P. 2B(c) (1)

. II. LEGAL	ANALYSIS [¶1 4 ] 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	of7 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. [¶1 5 ] 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	c ausal	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	c ase, then	the	employer	is	not	entitled	to	summary	judgment.” Brady ,	2015 ME 143, ¶	39,	126	A.3d	1145. [¶1 6 ]		Pushard asserts	that	he	engaged	in	three protected	activities	that entitled	 him	 to	whistleblower	 protection from	 adverse	 employment	 actions : (1)	 complain ing about	 Harper’s	 staffing	 decisions;	 (2)	 complain ing	 about Harper’s	treatment	of the a ssistant d irector ;	and	(3)	report ing 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 Staffi ng [¶1 7 ] 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	protect s employees	who,	in	good	faith, make	safety

- related	complaints	when	the	employee	reasonably	believes	that	a dangerous	 condition	 or	 practice	 exists.” To	 satis fy	 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 wi ll 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 [¶1 8 ] Pushard	argues	that	he	made	whistleblower protected complaints when	 he	 told	 Harper	 that replacing	 mental	 health	 workers	 with	 acuity specialists 4 and	 replacing	 two	 full

- time	 nurse	 educators	 with	 two

- part	 time nurse	educators compromised	patient	and	employee safety

. [¶1 9 ] 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]	 he ld	 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	understaffin g.		However,	there	is	no	support	in	the	statement	of	material	facts for	th is proposition.		We	must	therefore	disregard	Pushard’s	assertion. See	Berry ,	2019	ME	27,	¶	7, 202	A.3d	1195.10 51 (1st	Cir.	2016) (emphas is	added)

. Cormier and Harrison thus support the proposition	that	an	employee	do es not	enjoy	whistleblower	protection	simply because he disagree s with his employer	about	whether	the	employer’s	policy decisions cause	safety	concerns.		Instead,	a	“report”	u nder	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. [¶ 2 1] 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	t his	reason, Pushard	was	not reporting ;	he	was	complaining. [¶ 22 ] Because	 Pushard’s	 complaints	 about Harper’s staffing decisions fall	well	short	o f	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	for11 WPA	 cases ,	 as	 urged	 by	 Riverview

. 5 U nder	 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	 determination s 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

. A ssuming ,	wi thout	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	tha t	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	Ri verview	for	his
termination wa s	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	 mis taken 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.” S ee	 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	against13 Pushard because	of	his report	of	a	HIPAA	violation

. Moreover,	Pushard	has	not offered any	evi dence	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 ]	 	 T herefore , 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	decisio n — 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	respectf ully	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. Stew art
- 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	re sts	on	that	party	to	show that	the	evidence	fails	to	establish	a	prima	facie	case	for	the	claim. Cormier	v.
Genesis	Hea l thcare	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	 materi al	 facts portray	 different	 versions	 of	 the	 events	 taking place	between	June	2014,	when	Pushard	was	hired	as d irector	of n ursing , and June 2015,	when	he	was	suspended	from	his	position.15 I.		PROTECTED	ACTIVITY [¶ 3 1] 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	employe e 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	 w as	 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	“pr otected	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 con tinuation	 of	 the16 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

- ti me	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	 specia lists	 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	maintaine d	under	the consent	decree.

6 In	 Pushard’s response	 to	 Paragraph	 16	 of	 Riverview’s s tatement	 of m aterial f acts	 (“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 i s	 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	M E	161,	¶	1 1 ,	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	 s imply	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	ac tivity. Cormier ,	2015	ME	161,	¶ ¶ 10

- 16 ,	129	A.3d
944 ; see also 26	M.R.S.	§	833(1 )(B).		Second,	 that	 the	conditions	about	which18 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	fr om	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,	201 6).		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,	sever al	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	 disc losing	 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. Th e	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 know n 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 Whist le blower P rotection	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	sta ff; 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, 1 6 ,	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 [¶ 4 1] In	 addition	 to Pushard’s	 direct complaints	 of	 understaffing	 and related	safety	concerns made	to	the	administrator,	Harper, he also com plained about	the mis treatment	of his	a ssistant d irector	of n ursing , 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	 abo ut	 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	disa pproved	of	the	move. The	complaint21 regarding	the mis treatment	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	 saf ety	 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	tha t	there	was	no causal	connection between Pushard’s	reporting	of	a	possible	HIP A A	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	“mus t	rely	solely	on	 the temporal	 proximity	 between	 his	 report	 of	 a	 HIP A A	 violation	 and	 his22 termination	 to	 establish	 causation.” Court’s	Opinion	 ¶ 27

. The	 Court	 never definitively	 decided	 that	 the	 reporting	 of	 the	HIPAA	 violation	was	 protected activity. [¶ 4 4 ] However,	this	issue	surrounding	the	reporting	of	a	HIP A A	violation cannot	be	considered	in	isolation

— it	must	be	considered	in	the	context	of	all that	was	going	on	during	the	1 2 months	that	Pushard	was	director	of	nursing before	his suspension	and	ultim ate	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	level s,	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	 HIP A A	 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	 aware ness	 of	 protected activity	 and	 the	 alleged	 retaliatory	 action	 may	 serve	 as	 the	 causal	 link	 for23 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	7 6, 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	 cau sal	 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	jud gment. 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	in24 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	 circums tantial 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

contex t	 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	workpla ce .”); 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	 a s d irector	 of n ursing	 in	 June	 20 14. His repeated complaints	to	Harper	began	shortly	thereafter. The	first	sign	of	the administration’s	 attitude	 toward	Pushard	 surfaced	in	November 2014,	when25 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, approximate ly	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
Ri verview	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	reaso n	for	his	termination	was26 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 s tatement	 of m aterial f acts , 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	HIP A A	 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	jur y. [¶ 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,	Attorn ey	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