hoingeNOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as 

formal revision before publication in the Vermont Reports. Readers are requested to notify the 

Reporter of Decisions by email at: JUD.Reporter@vtcourts.gov or by mail at: Vermont Supreme 

Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections 

may be made before this opinion goes to press.

2024 VT 31

No. 23-AP-067

P. Mark Potanas Supreme Court

On Appeal from

 v. Superior Court, Washington Unit,

Civil Division

Department of Corrections January Term, 2024

Robert A. Mello, J.

Alison J. Bell of Langrock Sperry & Wool, LLP, Burlington, for Plaintiff-Appellee.

Charity R. Clark, Attorney General, and Laura C. Rowntree, Assistant Attorney General1,

Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples,2JJ.

¶ 1. EATON, J. The Department of Corrections (DOC) appeals from a jury verdict in 

favor of plaintiff P. Mark Potanas on his claim under the State Employee Whistleblower Act, 3 

V.S.A. § 973. DOC argues that plaintiff did not engage in any “protected activity” under the Act, 

and thus, the trial court should have granted its request for judgment as a matter of law. We agree,

and we therefore reverse the trial court’s ruling and remand for the court to vacate the jury’s verdict 

and enter judgment for DOC. Given our conclusion, we do not reach DOC’s remaining argument 

1

 Eleanor L.P. Spottswood, Solicitor General, and Emma Sandberg, Legal Intern, were on 

the appellant’s brief. David A. Boyd substituted as counsel and was on the appellant’s reply brief. 

Laura Rowntree substituted as counsel for David Boyd. 

2

 Justice Waples was present for oral argument but did not participate in this decision. 
2

that the court erred in admitting comparator evidence, nor do we set forth below the evidence 

related to that issue. For the same reason, we do not respond to the dissent’s analysis of this issue. 

I. Proceedings Below

¶ 2. The record indicates the following. Plaintiff was employed by DOC as the 

superintendent of Southern State Correctional Facility (SSCF). In January 2017, DOC terminated 

plaintiff from his position for cause after finding that he engaged in misconduct and gross 

misconduct. DOC determined that plaintiff “intimidated a health services professional into 

changing [her] clinical recommendations” for a seriously functionally impaired inmate from 

“segregation is contra-indicated” to “segregation is contraindicated for more than 14 days.” He

treated the health-services professional in a demeaning manner. DOC further found that plaintiff

was unprofessional and disrespectful to the health-services professional’s supervisor and had, on 

multiple occasions, attempted to assert control over the supervisor’s staff’s professional mental 

health assessments, which was outside the scope of plaintiff’s authority. DOC considered this an 

example of a larger pattern of unprofessional behavior. It added that plaintiff’s actions clearly 

influenced supervisors to also engage in behavior that had been determined as misconduct. DOC 

had no confidence in plaintiff’s ability to perform his duties as superintendent. For these and other 

reasons, DOC terminated plaintiff from his position. 

¶ 3. Plaintiff sued DOC, arguing that DOC improperly fired him in retaliation for 

engaging in activity protected by 3 V.S.A. § 973. That law prohibits the State from retaliating 

against an employee for:

providing to a public body a good faith report . . . that alleges an 

entity of State government, a State employee or official, or a person 

providing services to the State under contract has engaged in a 

violation of law or in waste, fraud, abuse of authority, or a threat to 

the health of employees, the public, or persons under the care of the 

State. 

Id. § 973(a)(1). Plaintiff sought reinstatement and damages. 
3

A. Legal Framework

¶ 4. To place plaintiff’s trial arguments in context, we begin with the legal framework 

governing his claim. To establish a prima facie case, plaintiff needed to show “that [he] suffered 

an adverse employment action under circumstances [that] give rise to an inference of unlawful 

[retaliation].” Hammond v. Univ. of Vt. Med. Ctr., 2023 VT 31, ¶ 25, __ Vt. __, 308 A.3d 421

(quotation omitted) (applying burden-shifting test set forth in McDonnell Douglas Corp. v. Green, 

411 U.S. 792 (1973), in context of Vermont’s Fair Employment Practices Act); Griffis v. Cedar 

Hill Health Care Corp., 2008 VT 125, ¶ 12, 185 Vt. 74, 967 A.2d 1141 (applying McDonnell

Douglas test under whistleblower protection statute for healthcare employees). Plaintiff could do 

so by showing that: “(1) [he] [was] engaged in a protected activity, (2) [his] employer was aware 

of that activity, (3) [he] suffered an adverse employment action, and (4) there was a causal 

connection between the protected activity and the adverse employment action.” Hammond, 2023 

VT 31, ¶ 38 (brackets omitted); Griffis, 2008 VT 125, ¶ 12 (recognizing that plaintiff’s prima facie 

case for retaliation must be established by preponderance of evidence). If plaintiff establishes a 

prima facie case, the burden shifts to DOC to provide a legitimate, nonretaliatory reason for the 

adverse employment action. Hammond, 2023 VT 31, ¶ 25. If DOC does so, the burden shifts

back to plaintiff to show “that the proffered reason is a mere pretext for retaliation.” Id. (quotations

omitted); Griffis, 2008 VT 125, ¶ 12. 

B. Trial Proceedings

¶ 5. At trial, plaintiff alleged that DOC retaliated against him based on his engagement 

in two activities. First, he argued that he was retaliated against for notifying the State of an 

opportunity to save money on a building renovation project in 2016. That project, carried out by 

a contractor, involved replacing the potable water pipes in SSCF’s buildings. Plaintiff had 

operational oversight of the project for DOC. The project was funded by the Legislature and 

scheduled to be performed in two different budget years. The first step was replacing the pipes in 
4

three living units, which was to be followed by replacing the pipes in the “main core” of the prison 

facility. The contractor completed the initial stage of the project ahead of schedule, and asked if 

it could be provided the funds (approximately $500,000) to complete its work that year. The 

contractor indicated that if it could finish its work that year, rather than leaving and returning, it 

would save the State at least $250,000 to $300,000. 

¶ 6. Plaintiff relayed this information to the director of SSCF, who thought it sounded 

like a good idea. The director later told plaintiff that they did not have the funds to finish the 

project that year; the DOC Commissioner similarly told plaintiff that they would not be “spending 

the money on that.” Plaintiff then bumped into the commissioner of the Department of Finance 

and Management and told him about the potential for savings. The finance commissioner thought 

there were discretionary funds available and asked plaintiff to “send him the numbers.” Plaintiff 

provided this information in an email to the SSCF director, the commissioners of DOC, Buildings 

and General Services, and Finance, and other involved parties. Some email recipients were outside 

of plaintiff’s chain of command. Within two weeks, plaintiff learned that the funds had been 

provided and that the project would be completed that year. Around this same time, the incident 

that formed the basis of the disciplinary investigation against plaintiff occurred, as did plaintiff’s 

subsequent termination. 

¶ 7. Plaintiff also claimed that he was retaliated against for advocating for more health 

staff at SSCF. Plaintiff testified to a staffing proposal that he was working on in August 2016, 

around the time that he was terminated. He testified to other instances when he had advocated for 

more mental health staff as well. 

¶ 8. DOC moved for judgment as a matter of law at the close of plaintiff’s case. It 

asserted that plaintiff was not a whistleblower with respect to the pipe replacement project because 

there was no “actual waste” in the project. Plaintiff agreed that he made a “report of potential 

waste,” but maintained that “[t]he fact that [waste] didn’t happen [wa]s not relevant to his report.” 
5

DOC also argued that plaintiff was not a whistleblower with respect to the level of mental health 

staffing at SSCF because it was a “widely known issue that people were paying attention to,” he 

was expected to report on staffing issues, and “[i]t was a matter of [plaintiff’s] opinion that there 

was insufficient staffing.” 

¶ 9. The court denied the motion, finding the evidence sufficient to allow the jury to 

return a verdict in plaintiff’s favor. With respect to the pipe project, the court reasoned that it 

would have been a waste not to take into consideration the potential to save money. It thus found 

plaintiff’s report of potential waste sufficient to meet the definition of “protected activity” under 

the Act. The court further found that plaintiff presented evidence that he complained to his 

superiors about the inadequacy of mental health staffing. He made these complaints “over a 

significant period of time” and “right up until the time of his discharge.” 

¶ 10. DOC renewed its decision for judgment as a matter of law at the close of the 

evidence, which the court denied. The case was submitted to the jury, which returned a verdict for 

plaintiff. This appeal followed.

II. Arguments on Appeal

¶ 11. DOC argues that it was entitled to judgment as a matter of law because plaintiff did 

not engage in protected activity under the Whistleblower Act. It maintains that reporting on 

potential waste, rather than actual waste, is not a protected activity. DOC further asserts that 

reporting on a known problem, or disagreeing over how to resolve a known problem, is not 

protected activity. 

¶ 12. We review the trial court’s ruling de novo, applying the same standard as the trial 

court. Schaad v. Bell Atl. NYNEX Mobile, Inc., 173 Vt. 629, 631, 800 A.2d 455, 458 (2002) 

(mem.) (quotation omitted). Judgment as a matter of law is appropriate when, “taking the evidence 

“in the light most favorable to the nonmoving party, [and] excluding the effect of modifying 

evidence,” “there is no legally sufficient evidentiary basis for a reasonable jury to find for [the 
6

nonmoving] party.” Vincent v. DeVries, 2013 VT 34, ¶ 9, 193 Vt. 574, 72 A.3d 886. We agree 

with DOC that plaintiff failed to show that he engaged in protected activity under the 

Whistleblower Act. DOC was therefore entitled to judgment as a matter of law. 

¶ 13. As indicated above, the Whistleblower Act prohibits the State from retaliating 

against an employee for providing to a public body a good-faith report:

that alleges an entity of State government, a State employee or 

official, or a person providing services to the State under contract 

has engaged in a violation of law or in waste, fraud, abuse of 

authority, or a threat to the health of employees, the public, or 

persons under the care of the State. 

3 V.S.A. § 973(a)(1). 

¶ 14. Our goal in construing this statute is to implement the Legislature’s intent, and 

“[t]he definitive source of legislative intent is the statutory language, by which we are bound unless 

it is uncertain or unclear.” In re Bennington Sch., Inc., 2004 VT 6, ¶ 12, 176 Vt. 584, 845 A.2d 

332 (mem.). We adhere to the “ordinary and usual meaning” of statutory terms unless “the 

objective of the legislation would be defeated by literal enforcement of statutory provisions.” 

Town Sch. Dist. of Town of St. Johnsbury v. Town Sch. Dist. of Town of Topsham, 122 Vt. 268, 

271, 169 A.2d 352, 354 (1961). 

A. Reports of Potential Waste

¶ 15. The plain language of § 973(a)(1) does not encompass reports about the possibility 

of future waste. It applies to good-faith reports made to a public body alleging that a person or 

entity “has engaged . . . in waste.” Id. (emphasis added). The verb tense used by the Legislature 

“expresses an action or state begun in the past and completed at the time of speaking . . . or

continuing in the present.” Present Perfect, Merriam-Webster Online Dictionary, 

https://www.merriam-webster.com/dictionary/present%20perfect [https://perma.cc/K43DFZ5G]. In other words, there must be actual waste that has occurred at the time of the report, 
7

which the employee is exposing. Plaintiff acknowledged below that he was seeking to avoid future 

waste and that any waste was in fact avoided.3 

¶ 16. It makes sense that the Legislature considered an employee who exposes a past or 

ongoing wrong more likely to be subject to retaliation, and thus entitled to protection, than one 

who identifies potential waste or other potential wrongs that may still be avoided. By using the 

present-perfect tense, the Legislature chose to impose a clear limit on the reach of the statute. 

¶ 17. The Idaho Supreme Court reached a similar conclusion in Van v. Portneuf Medical 

Center, 212 P.3d 982 (Idaho 2009), where it considered a retaliation claim under Idaho’s 

Whistleblower Act. That Act defines protected activities in relevant part to include 

communications made in good faith about “the existence of any waste of public funds” and 

requires that the communication “be made at a time and in a manner [that] gives the employer 

reasonable opportunity to correct the waste.” Id. at 988 (quotation omitted). 

¶ 18. The employee in Van reported, among other things, that a proposed helicopter 

maintenance contract had “several loopholes by which [the vendor] could escape its maintenance 

responsibilities,” and that “entering into the . . . contract amounted to a waste of public funds.” Id. 

at 985. The court held that this was not protected activity because the employee’s “focus was on 

potential future waste, rather than past or present waste.” Id. at 989. It found that “this distinction 

is important because the relevant statute . . . [spoke] of the ‘existence’ of any waste of public funds, 

meaning an existing or present waste, not a potential future waste.” Id. The court expressed its 

3

 On appeal, plaintiff asserts that DOC did engage in waste when it refused his initial 

request to provide discretionary funds to complete the project, even though the funds were in fact 

made available. He conceded below, however, that he made a report of “potential waste,” and we 

thus do not address this argument, which is both at odds with plaintiff’s position below and appears 

to be raised for the first time on appeal. See In re White, 172 Vt. 335, 343, 779 A.2d 1264, 1270 

(2001) (explaining that “[t]o properly preserve an issue for appeal a party must present the issue 

with specificity and clarity in a manner which gives the trial court a fair opportunity to rule on it” 

and “[w]e have repeatedly stressed that we will not address arguments not properly preserved for 

appeal”).
8

concern about the far-reaching consequences of holding that the law protected “employee 

communications regarding potential waste that may occur in the future based on an employee’s 

subjective beliefs.” Id. 

¶ 19. We share this concern and reach a similar conclusion based on the language of our 

law. To be afforded protection under the Act, the law plainly requires that an employee report that 

a person or entity “has engaged . . . in waste.” That requirement was not satisfied here.4 

¶ 20. Our conclusion is consistent with the statement of legislative purpose set forth in 3 

V.S.A. § 971 (“A State employee, as a trustee and servant of the people, shall be free to report, in 

good faith and with candor, waste, fraud, abuse of authority, violations of law, or a threat to the 

health of employees, the public, or persons under the care of the State without fear of reprisal, 

intimidation, or retaliation.”). This provision does not vary the plain language of § 973, and it 

does not extend the protection of the Act, as plaintiff posits, to all employees who “speak up ‘with 

candor’ whenever and wherever they thought, in good faith, that the public trust was at risk.” We 

must give effect to the language used by the Legislature in § 973, which limits the scope of such 

protection to specific enumerated issues in the workplace.

¶ 21. Plaintiff urges us to read § 973 to encompass reports of “known, specific, and 

imminent” waste based on the broad policy purposes of the Act. We decline to read new language 

into the law, however, because it is not “necessary to make the statute effective.” In re 204 N. 

Ave. NOV, 2019 VT 52, ¶ 6, 210 Vt. 572, 218 A.3d 24 (quotation omitted)). The statutory 

language here is clear and unambiguous, and, as indicated above, implementation of the plain 

language does not undermine the purpose of the statute. The fact that the statute references “good 

faith” reports, moreover, does not establish that it encompasses reports of potential waste, as 

4

 The statutory language does not support the dissent’s proposed interpretation, cf. post, 

¶ 48 n.6, and we must respect the Legislature’s clear choice on the issue of potential rather than

actual waste. 
9

plaintiff argues. Under the law, one must have a good-faith belief that waste “has” occurred. The 

fact that plaintiff may have reported the cost-saving potential to others outside his chain of 

command does not change this result. Given the particular language of our statute, we find 

unpersuasive the federal Whistleblower Act cases cited by plaintiff in support of his argument that 

reports of “real and immediate” or “imminent” harm should be protected. We conclude that the 

report made here about potential savings on the pipe project did not constitute protected activity 

under the Whistleblower Act. 

B. Mental Health Staffing Levels

¶ 22. We reach a similar conclusion with respect to plaintiff’s complaints about mental 

health staffing. We find persuasive decisions from other states holding that reporting on a known 

problem, or disagreeing about how to resolve a known problem, is not protected whistleblower 

activity. 

¶ 23. The Maine Supreme Court considered an issue similar to that presented here in 

Pushard v. Riverview Psychiatric Center, 2020 ME 23, 224 A.3d 1239. Specifically, it considered 

whether an employee’s complaints about staffing decisions and policies constituted protected 

activity under the state whistleblower statute. The Maine whistleblower law protects an 

“employee, acting in good faith . . . [who] reports . . . 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.” Id. ¶ 17 (quotation omitted). The employee there was the director of nursing at 

a psychiatric center who often disagreed with the staffing decisions made by his supervisor, the 

director of the facility. “The parties agree[d] that [u]nderstaffing was a persistent, ongoing 

problem at [the facility] for years,” and “[t]he issue was publicly known and had been discussed 

by the media and the Legislature.” Id. ¶ 3 (second alteration in original). The employee argued 

that he engaged in protected activity when he told his supervisor that “replacing mental health 
10

workers with acuity specialists and replacing two full-time nurse educators with two part-time 

nurse educators compromised patient and employee safety.” Id. ¶ 18 (footnote omitted). 

¶ 24. The court rejected this argument, concluding that the employee’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 superior’s 

attempts to address well-known problems related to staffing.” Id. ¶ 19. The court explained 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 [Maine Whistleblower Protection Act] is one that 

would bring the safety issue to the employer’s attention, or is made 

to shed light on and in opposition to a safety-related concern.

 

Id. (quotations omitted). 

¶ 25. The court concluded that the employee’s conduct “d[id] not meet that standard 

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

[the facility’s] staffing issues.” Id. As referenced above, the fact that the facility “was understaffed 

was known to the public, the Legislature, and [the facility’s] employees,” and “[e]ven if the 

specific staffing decisions about which [the employee] complained were not widely known, it 

[was] uncontroverted that [the employee] did not believe that he was making [his supervisor] or 

anyone else aware of anything they were not already aware of.” Id. ¶ 21 (quotations omitted). 

“For this reason,” the court concluded that the employee “was not reporting; he was complaining.” 

Id. 

¶ 26. Other courts have reached similar conclusions. See Forrester v. Ga. Dep’t of Hum.

Servs., 708 S.E.2d 660, 667 (Ga. Ct. App. 2011) (concluding that “to the extent the appellants 

claim to have disclosed something that was already widely known . . . this is [not] the type of 

communication encompassed by the whistle-blower statute”); Baptiste v. Mann, 861 S.E.2d 212, 

218 (Ga. Ct. App. 2021) (citing Forrester for proposition that “[i]f the violation or noncompliance 
11

is already widely known . . . the employee’s disclosure of it does not constitute whistleblowing 

and is not protected by the [Georgia Whistleblower Act]”); Harper v. Univ. of Louisville, 559 

S.W.3d 796, 802 (Ky. 2018) (similarly recognizing that “ ‘disclosure’ of information which is 

public information or otherwise already widely known within the organization cannot qualify as a 

whistleblower disclosure” and Kentucky law “protects the whistleblower who exposes information 

not generally known”). 

¶ 27. We find these cases compelling here and hold that an employee who broadly 

discusses a widely known job-related issue is not making the type of report that the Whistleblower 

Act is designed to “encourage and protect.”5 Willis v. Dep’t of Agric., 141 F.3d 1139, 1143 (Fed. 

5

 This holding places a logical and reasonable limit on the reach of 3 V.S.A. § 973. A 

discussion of well-known work-related issues with various stakeholders, and the press, in the 

context of one’s employment is not the type of activity that the Legislature sought to protect under 

the Whistleblower Act. Cf. post, ¶ 44. The dissent’s approach would cast too wide a net; it would 

appear to apply to every employee who participated with plaintiff in discussions about staffing 

levels in prison facilities. 

Plaintiff did not argue below that he was making corroborating reports and the cases cited 

by the dissent are inapposite. Post, ¶¶ 48-49. The primary cases on which the dissent relies involve 

factually distinct whistleblower provisions. Significantly, the laws discussed there reached only 

reports or disclosures of illegal acts. This limitation was cited by one of the courts as a reason why 

its interpretation of the law would not “convert everyday workplace disputes into whistleblower 

cases.” People ex rel. Garcia-Brower v. Kolla’s Inc., 529 P.3d 49, 59 (Cal. 2023) (quotation 

omitted). The court explained that the protections offered under the California law “apply only 

where the disclosing employee ‘has reasonable cause to believe that the information discloses a 

legal violation.’ ” Id. (brackets omitted). Thus, it continued, “[t]his clause imposes a requirement 

of objective reasonableness and excludes from whistleblower protection disclosures that involve 

only disagreements over discretionary decisions, policy choices, interpersonal dynamics, or other 

nonactionable issues.” Id. 

Texas law similarly requires a “good faith report of a violation of law,” as discussed in City 

of Ft. Worth v. Pridgen, 653 S.W.3d 176, 178 (Tex. 2022) (brackets omitted). The court 

emphasized that, to fall within its statute, reports must “convey information that exposes or 

corroborates a violation of law or otherwise provide relevant, additional information that will help 

identify or investigate illegal conduct.” Id. at 184. It requires the conveyance of “information” 

and “fact,” not “mere opinions or suppositions.” Id. In that case, the court held that even if it was 

true that the employees in question were the first to bring a fellow employee’s misconduct to their 

supervisor’s attention, “the record show[ed] that at most [the employees] voiced an opinion to 

[their supervisor] about broadly known (indeed public) and easily verifiable information. 

Accordingly, there were no facts for [the employees] to expose or corroborate . . . . Since 
12

Cir. 1998) (explaining that purpose of federal Whistleblower Protection Act “is to encourage 

government personnel to disclose government wrongdoing to persons who may be in a position to 

remedy the problem without fearing retaliatory action by their supervisors or those who might be 

harmed by the disclosures,” but this does not include “[d]iscussion and even with disagreement 

with supervisors over job-related activities,” which “is a normal part of most occupations”). 

¶ 28. The record here shows that the mental health staffing issues were widely known 

and discussed. Plaintiff advocated for more mental health staff throughout his time as 

superintendent, as did others. Plaintiff’s supervisors shared his concerns and expressed support 

for a strong long-term mental health team. Plaintiff’s supervisors sought out more information 

from plaintiff about his mental health staffing concerns at SSCF and scheduled meetings about the 

issue at his request. Plaintiff prepared and presented a slideshow about mental health staffing 

needs. Plaintiff recalled that some of the attendees, including the medical director, were pleased 

with the presentation. The Legislature was also concerned about meeting the mental health needs 

‘reporting’ under the [Texas act] require[d], at a minimum, provision of information regarding 

illegal conduct, this type of communication [did] not suffice.” Id. at 188. 

As stated above, the staffing concerns in prison facilities, including SSCF, were wellknown and shared by many, including plaintiff’s supervisors. Addressing these concerns 

presented a complicated policy issue. See Edwards v. Commonwealth, 174 N.E.3d 1153, 1165 

(Mass. 2021) (recognizing “that, in many routine policy disagreements, any given position might 

be characterized as creating a risk to public health, safety or the environment”) (quotations

omitted) (citing Chambers v. Dep’t of Interior, 515 F.3d 1362, 1368 (Fed. Cir. 2008) (noting that 

“any policy decision related to the allocation or distribution of law enforcement funding . . . could 

potentially be said to create a risk to public safety”)); see also Johnson v. Dist. of Columbia, 225 

A.3d 1269, 1275 (D.C. 2020) (explaining that, while whistleblower act seeks to protect employees 

who report “waste, fraud, abuse of authority, violations of law, or threats to public health and 

safety,” “the statute is not meant to be a weapon in arguments over policy or a shield for 

insubordinate conduct”; instead, “purported whistleblower must disclose such serious errors by 

the agency that a conclusion that the agency erred is not debatable among reasonable people”)

(quotations and citations omitted). As the Johnson court recognized, “[m]ere differences of 

opinion between an employee and an agency supervisor as to the proper approach to a particular 

problem or the most appropriate course of action do not rise to the level of gross mismanagement.” 

Id. at 1277 (quotation omitted). These types of policy disagreements are not the type of “protected 

activity” that the Legislature sought to protect in the Whistleblower Act. 
13

of incarcerated individuals during plaintiff’s tenure as superintendent. Plaintiff spoke to the press 

about the issue as well. 

¶ 29. Others within DOC also advocated for more mental health staff, including the 

former director of mental health services for DOC, the director of nursing services, the medical 

director, and other prison superintendents. These efforts included meeting and communicating 

with the director of facilities and the DOC Commissioner. There was also evidence that it could 

be difficult to find mental health staffers and questions about whether an increase in staff would 

necessarily translate into better care. 

¶ 30. Plaintiff does not appear to take issue with the proposition that the staffing 

shortages were widely known and discussed. He instead argues that his reports were uniquely 

informed given his position as superintendent for a facility designed to house inmates with 

significant medical and mental health needs. Plaintiff’s complaints about staffing levels were one 

of many voices on this subject, however, and the fact that he may have brought a unique 

perspective to this discussion does not undermine the conclusion that this issue was widely known, 

and therefore outside the scope of the Whistleblower Act. Because plaintiff failed to show that he 

engaged in protected activity under the law, DOC was entitled to judgment as a matter of law. 

The trial court’s denial of the Department of Corrections’ motion for judgment as a matter 

of law is reversed and the case is remanded for the court to vacate the jury’s verdict and enter 

judgment for the Department of Corrections. 

FOR THE COURT:

Associate Justice

¶ 31. COHEN, J., dissenting. The Court holds that a uniquely-situated employee’s

report of an ongoing threat to the health of individuals is not protected by the State Employee 

Whistleblower Act if the gist of the threat is “widely known.” Ante, ¶ 27. In my view, this 

conclusion severely chills an employee’s ability to report the extent to which conduct or inaction 
14

will threaten the safety of the public, other state employees, or persons under the state’s care. With 

the responsible public body deprived of the benefit of reports detailing how a generally known 

threat will materialize, it cannot make a properly informed decision on how to best address that 

threat. I cannot endorse this outcome. To implement a core purpose of the Act, good-faith reports 

that fall under its ambit should constitute protected activity even if those reports are corroborative. 

Therefore, I would hold that plaintiff engaged in protected activity when he repeatedly reported 

how inadequate mental health staffing led to ongoing and particularized threats to his staff and the 

inmates under the state’s care. And because the jury issued a general verdict that did not 

distinguish between that protected activity and plaintiff’s reports of waste, the judgment below 

must be affirmed. For these reasons, I respectfully dissent.

I. Plaintiff’s Reports of Threats to Safety Caused by Inadequate Staffing

¶ 32. Before examining the merits of this appeal, it is imperative to provide context on 

plaintiff’s employment and his reports on mental health staffing in a manner consistent with the 

governing standard of review. In an appeal brought from a motion for judgment as a matter of law 

under V.R.C.P. 50(a)(1), this Court must “consider the evidence in the light most favorable to 

[plaintiff], excluding the effect of modifying evidence.” Foti Fuels, Inc. v. Kurrle Corp., 2013 VT 

111, ¶ 10, 195 Vt. 524, 90 A.3d 885 (quotation omitted). So long as the evidence “may fairly and 

reasonably support all elements of the nonmoving party’s claim, judgment as a matter of law is 

improper.” Lasek v. Vt. Vapor, Inc., 2014 VT 33, ¶ 14, 196 Vt. 243, 95 A.3d 447 (quotation 

omitted).

¶ 33. Plaintiff began his employment with the Department of Corrections (DOC) in 1997 

as a corrections officer. After holding various positions with DOC, plaintiff was eventually 

promoted in 2011 to superintendent of Southern State Correctional Facility (SSCF), having held 

various roles at SSCF since 2003.
15

¶ 34. SSCF was itself a unique facility. It was designed to house inmates with mental 

health issues as well as inmates experiencing other medical problems. Many individuals 

incarcerated at SSCF were experiencing mental health crises and posed a danger not only to 

themselves but also to others. During his time at SSCF, plaintiff became intimately familiar with 

the needs of the inmates and the staff servicing and treating those individuals. Over the course of 

many years at SSCF, including nearly six years as superintendent, plaintiff learned how inadequate 

staffing morphed into a developing and continuous threat to both inmates and staff.

¶ 35. Overall, plaintiff worked in various capacities at SSCF for nearly fourteen years. 

He was uniquely positioned to understand how insufficient mental health staffing threatened safety 

given his experience, background, and his status as superintendent. It follows that considerable 

weight could be assigned to his insight and perspectives regarding the operations of SSCF.

¶ 36. Plaintiff repeatedly sent reports to his superiors outlining the developing and 

ongoing threats posed by the lack of adequate mental health staffing. For instance, plaintiff

reported to his direct supervisor about a staff assault at SSCF which, according to plaintiff, was a 

result of the absence of mental health clinicians. In another instance, plaintiff held a meeting with 

approximately twenty individuals to discuss the ongoing threat to safety posed by the lack of 

necessary mental health staff. During that meeting, he presented a year’s worth of information he 

had gathered as SSCF superintendent and detailed how the lack of mental health staffing was 

continually jeopardizing the safe operation of the facility.

¶ 37. In a report sent to a number of individuals only months before his termination, 

plaintiff warned about the already-stretched mental health services that inmates were receiving 

after one mental health staff member was fired by DOC’s contractor. The mental health staff were 

already “working at an unreasonable pace with no relief in sight.” This followed another report to 

many of those same individuals, where plaintiff detailed the current status of inmates’ mental 

health needs, the inadequacy of the staff to service those needs, and the number of deaths at SSCF 
16

over several years. Plaintiff stated that the lack of adequate staffing would, “in my opinion, put 

the entire inmate population at risk.”

¶ 38. Contrary to the majority’s contention, much of these reports did not simply 

regurgitate the generally known issue that SSCF lacked adequate staff. Instead, many of plaintiff’s 

reports detailed not only the specific threats posed by the lack of mental health staffing, but also 

the failure of DOC’s contractors to provide SSCF with that necessary staff.

II. Scope of Protected Activity Under § 973

¶ 39. Claims under 3 V.S.A. § 973 are governed by the familiar burden-shifting 

framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). At the initial 

stage, a plaintiff must establish a prima facie retaliation claim by showing that: “(1) the plaintiff 

engaged in a protected activity; (2) the employer was aware of the activity; (3) the plaintiff suffered 

adverse employment consequences as result of the activity; and (4) there was a causal connection 

between the activity and the consequences.” Griffis v. Cedar Hill Health Care Corp., 2008 VT 

125, ¶ 12, 185 Vt. 74, 967 A.2d 1141 (applying burden-shifting framework of McDonnell Douglas

to whistleblower claim under 21 V.S.A. § 507). If a plaintiff establishes their prima facie case, 

“the burden of production shifts to the defendant, who must state legitimate, nonretaliatory reasons 

for the adverse employment action.” Id. Should the defendant meet that burden, the analysis 

enters a third burden-shifting stage requiring the plaintiff “to prove by a preponderance of the 

evidence that the [defendant’s] articulated reasons are pretextual.” Id.

¶ 40. The majority’s resolution of this appeal focuses on the very first element of the first 

stage—whether plaintiff’s reports about ongoing and developing threats posed by mental health 

staff shortages were “protected activity.”

¶ 41. Given that 3 V.S.A. § 973 is the operative source of what is “protected activity,” 

whether reports are protected necessarily involves interpreting that statute. Our goal in doing so 

is to “determine the intent of the Legislature and implement that intent.” Flint v. Dep’t of Lab., 
17

2017 VT 89, ¶ 5, 205 Vt. 558, 177 A.3d 1080. The starting point of that inquiry is the statute’s 

plain language. Id. The relevant portion of § 973 provides: 

A State agency, department, appointing authority, official, or 

employee shall not engage in retaliatory action against a State 

employee because the State employee . . . [p]rovide[s] to a public 

body a good faith report or good faith testimony that alleges an 

entity of State government, a State employee or official, or a person 

providing services to the State under contract has engaged in 

violation of law or in waste, fraud, abuse of authority, or a threat to 

the health of employees, the public, or persons under the care of the 

State.

3 V.S.A. § 973(a)(1).

¶ 42. The plain language governing when a report is protected is unmistakably clear. 

Broken down into core elements, a report must (1) be made in “good faith,” (2) be provided to a 

“public body” as defined in 3 V.S.A. § 972(3), and (3) allege that one of the enumerated entities 

has, inter alia, engaged in conduct that threatens the health of employees, the public, or persons 

under the state’s care.

¶ 43. Section 973 does not impose any additional showing beyond these three 

components. For instance, it does not require that a report must pertain to a threat not already 

known to the public body. Rather, § 973’s plain terms give no indication that the Legislature 

intended to exclude reports merely because the report touches upon a well-known issue.

¶ 44. This interpretation of § 973 fits squarely within the Legislature’s express intent to 

provide considerable protections to state employees. The Legislature made clear that the purpose 

of § 973 was broad and all-encompassing: As “a trustee and servant of the people,” a state 

employee “shall be free to report, in good faith and with candor, waste, fraud, abuse of authority, 

violations of law, or a threat to the health of employees, the public, or persons under the care of 

the State without fear of reprisal, intimidation, or retaliation.” 3 V.S.A. § 971. Reporting on the 

extent of such a threat, even if the general threat is already known to a public body, furthers the 

stated legislative objective. State Agency of Nat. Res. v. Parkway Cleaners, 2019 VT 21, ¶ 16, 
18

209 Vt. 620, 210 A.3d 445 (requiring Court when interpreting statute to consider “[a]ll relevant 

parts of the applicable statutory scheme to create . . . a harmonious whole” (quotation omitted)).

¶ 45. A further reason to favor a broad interpretation is the remedial purpose of § 973. 

There is no doubt that the Act is remedial, especially in light of the Legislature’s stated intent 

contained in § 971. Accord Harrison v. Granite Bay Care, Inc., 811 F.3d 36, 51 (1st Cir. 2016) 

(observing that Maine’s whistleblower protection statute was “a remedial scheme to vindicate” 

against discharge in retaliation for reporting illegal acts); Killgore v. SpecPro Prof. Servs., LLC, 

51 F.4th 973, 985 (9th Cir. 2022) (construing California Whistleblower Protection Act in manner 

“consistent with [its] broad remedial purpose” that “reflects the broad public policy interest in 

encouraging whistle-blowers to report unlawful acts without fearing retaliation” (quotation 

omitted)). As such, § 973 must be “liberally construed to accomplish [its] remedial purpose.” 

Parkway Cleaners, 2019 VT 21, ¶ 16 (quotation omitted). Interpreting § 973 to include plaintiffs’ 

reports on the threat posed by mental health staffing issues neatly conforms to that principle.

¶ 46. This should mark the end of the interpretative analysis of § 973. See In re 204 N.

Ave. NOV, 2019 VT 52, ¶ 5, 210 Vt 572, 219 A.3d 24 (“If the plain language is clear and 

unambiguous, we enforce the statute according to its terms.” (quotation omitted)). Under that 

statute’s plain terms, any report that meets its basic requirements satisfies the “protected activity” 

element under McDonnell Douglas. There is nothing within the statute’s language indicating that 

the Legislature intended to exclude reports detailing the extent to which a well-known issue risks 

the health of the public or persons under the state’s care. Imposing such a limitation is atextual 

and at odds with how this Court typically interprets remedial statutes.

¶ 47. This plain reading is also, practically speaking, logical. Other courts have 

delineated prudential reasons for why a legislature would intend to protect all reports of threats to 

the safety of state employees or individuals under the state’s care, even if the information is 

corroborative.
19

¶ 48. In People ex rel. Garcia-Brower v. Kolla’s, Inc., 529 P.3d 49 (Cal. 2023), the 

California Supreme Court addressed whether an employee who reported a potential wage law 

violation was protected under California’s whistleblower retaliation statute, even though that 

information was already known to the employer. In answering that question, the court highlighted 

the importance of corroborating reports.6 It explained that if multiple disclosures lacked the 

necessary antiretaliation protection, “employers and government agencies would miss out on 

potentially corroborating information that may be valuable in investigating and confirming 

violations of the law.” Id. at 57. And absent that protection, “an employee who knows that his or 

her coworker has already disclosed a violation may be hesitant to disclose the same violation.” Id. 

That stood in contrast to the benefits of protecting corroborating reports, as “an employee may 

reasonably feel more willing to approach an employer about workplace safety hazards, unpaid 

wages, or overtime violations knowing that his or her coworkers were also disclosing the same 

unlawful activity.” Id. When multiple employees make corroborating reports of a specific threat 

or legal violation, an employer will “be more likely to ameliorate violations, and less able to sweep 

them under the rug.” Id.

¶ 49. The value of corroborating reports was also examined in City of Fort Worth v. 

Pridgen, where the Texas Supreme Court interpreted a statute that, like § 973, protects a public 

employee “who in good faith reports” a violation of law. 653 S.W.3d 176, 183 (Tex. 2022). The 

Pridgen court rejected the defendant’s argument that “consistent reports add no benefit” and 

instead concluded that corroborative reports “may be equally helpful in ferreting out government 

6

 Notably, the court in Kolla’s also looked to the plain language of its statute, focusing on 

the operative term “disclose.” 529 P.3d at 53. It observed that “[a]lthough the term ‘disclose’ 

often refers to sharing previously unknown information, the word also means bringing into view 

in a particular context a type of information to which the discloser tends to have special access.” 

Id. This term could include a report “that calls attention to a legal violation or potential violation 

in the workplace,” which is “the type of information to which an employee tends to have special 

access, whether or not any particular recipient of such information has prior knowledge.” Id. at 

54.
20

mismanagement to protect the public.” Id. at 185 (quotation omitted). The court explained that 

corroboration “is eminently valuable when evaluating the reliability of an informant’s tip.” Id. “It 

is also common sense. Three consistent accounts of misconduct from three different sources 

represent far more compelling evidence of wrongdoing than a single report.” Id. at 186. Thus, 

excluding such reports that may possess “additional evidence” from whistleblower protection 

would chill employees from sharing such information out of fear of retaliation. Id.

¶ 50. Applying those principles here, I would conclude that plaintiff’s reports on 

inadequate mental health staffing held inherent value that warrant protection under § 973. As 

superintendent of SSCF and having worked at SSCF in various capacities for eight years before 

reaching that position, plaintiff held “special access” to the unique information concerning the 

ongoing threats posed by the lack of adequate mental health staffing. Kolla’s, 529 P.3d at 54. 

Plaintiff was in an exceptional position to report on these threats given his access, experience, and 

grasp on the details of how these specific threats continued to materialize. His reports were not 

only valuable “additional evidence” but also compelling under the circumstances. Pridgen, 653 

S.W.3d at 186 (holding corroborative reports are valuable evidence and warrant protection under 

Texas’ whistleblower protection statute). Even assuming plaintiff’s reports merely corroborated 

the well-known mental health staffing crisis, they could very well be invaluable to guiding the 

responsible public body to best address the resulting threat.

¶ 51. To reach a contrary conclusion, the majority relies on cases that are either 

unpersuasive or inapposite. The majority primarily relies on Pushard v. Riverview Psychiatric 

Center, where the Supreme Judicial Court of Maine examined a somewhat similar issue under 

Maine’s whistleblower-protection act. 2020 ME 23, ¶¶ 17-19, 224 A.3d 1239. Pushard involved 

a plaintiff who made complaints that specific staffing decisions compromised patient and 

employee safety. The court concluded that these reports were not protected activity because the 

plaintiff “was not exposing a concealed or unknown safety issue.” Id. ¶ 19. It pointed to the fact 
21

that understaffing “was known to the public, the [l]egislature, and [his employer’s] employees.” 

Id. And it further observed that even if the specific staffing decisions which the plaintiff disagreed 

with were not “widely known,” the plaintiff did not believe that he was reporting information that 

was not already known to the recipient. Id.

¶ 52. I remain unconvinced by Pushard’s reasoning. Its holding—reports that do not 

expose a concealed or unknown safety issue are not protected activity—relies solely on two 

statements from two separate cases. The first comes from Cormier v. Genesis Healthcare LLC, 

2015 ME 161, 129 A.3d 944. As noted in Pushard, Cormier “explained that an employee had 

presented evidence 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.” Pushard, 2020 ME 23, ¶ 19 (quoting Cormier, 2015 ME 161, ¶ 12) (alteration and 

emphasis in original). But whether a report brings a safety issue to an employer’s attention is 

separate and distinct from the originality of the information itself. Repeatedly reporting a safety 

concern brings as much attention to that issue as the first report. For every report that a staffing 

issue is compromising safety, an employer must turn its attention to that issue. Moreover, repeated 

reports draw even more attention to the issue at hand. See Pridgen, 653 S.W.3d at 186 (observing 

that multiple reports of misconduct provide more credibility than isolated report).

¶ 53. Pushard also cites to a single sentence from Harrison, 811 F.3d at 51. Harrison

addressed whether reporting misconduct as a part of an employee’s normal job duties was 

protected under Maine’s whistleblower protection act. Pushard merely relied on Harrison’s 

summation of Maine case law: Maine’s whistleblower protection act applies only to reports that 

were “made to shed light on and in opposition to an illegal act or unsafe condition.” Pushard, 2020 

ME 23, ¶ 20 (quoting Harrison, 811 F.3d at 51) (emphasis omitted). But a report that sheds light 

on, and is made in opposition to, an unsafe condition can certainly include a report that pertains to 
22

a well-known unsafe practice. Common sense dictates that a report can “shed light on” a widely 

known issue in many respects, such as expanding on how threats are developing and the extent to 

which the threat affects, in real time, the safety of staff and inmates. Pushard makes no attempt to 

explain why, as a matter of law, corroborating reports can never “shed light on” a publicly known 

issue.

¶ 54. There is yet an additional problem with Pushard, which was highlighted in Justice 

Jabar’s dissent. Maine’s construction of its whistleblower protection statute “has been guided by 

federal law.” Currie v. Industrial Sec., Inc., 2007 ME 12, ¶ 13, 915 A.2d 400. As such, Justice 

Jabar noted Congress’s 2012 amendment to the federal whistleblower statute which expressly 

provides that a disclosure is not excluded as “protected activity” merely because it “revealed 

information that had been previously disclosed.” 5 U.S.C. § 2302(f)(1)(B); see Whistleblower 

Protection Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat. 1465, 1466; Pushard, 2020 

ME 23, ¶ 37 (Jabar, J., dissenting). Thus, “[t]he proposition that complaints about publicly known 

safety issues can never be protected activity has been expressly overruled by Congress.” Pushard, 

2020 ME 23, ¶ 37 (Jabar, J., dissenting).

¶ 55. The majority further relies on cases from the Georgia Court of Appeals and the 

Kentucky Supreme Court, where those courts interpreted their respective state whistleblower 

statutes to exclude disclosures of widely known information. See Forrester v. Ga. Dep’t of Hum.

Servs., 708 S.E.2d 660, 667 (Ga. Ct. App. 2011); Harper v. Univ. of Louisville, 559 S.W.3d 796, 

802 (Ky. 2018). These cases are problematic for primarily two reasons.7

7

 There are other reasons why these cases are unpersuasive. For instance, the court in 

Forrester performed no legal analysis as to why “widely known” issues did not as a matter of law 

fall under its whistleblower statute. Instead, the court engaged in a perfunctory inquiry consisting 

of a single paragraph which concluded with the statement that it “[could not] say that this type of 

communication” was protected activity. 708 S.E.2d at 667. Likewise, in Baptiste v. Mann, the 

court did nothing more than rely on Forrester’s single-sentence conclusion. 861 S.E.2d 212, 218 

(Ga. Ct. App. 2021).
23

¶ 56. First, Harper’s holding on this topic is heavily dependent on a federal case that is 

no longer good law. Harper determined that the purpose of the Kentucky Whistleblower Act is to 

protect “employees who possess knowledge of wrongdoing that is concealed or not publicly 

known, and who step forward to help uncover and disclose that information.” 559 S.W.3d at 801 

(quoting Davidson v. Com., Dep’t of Mil. Affs., 152 S.W.3d 247, 255 (Ky. Ct. App. 2004)). 

Davidson, in turn, reached that conclusion by first observing that Kentucky looks to federal 

precedent for its own whistleblower statute. The Davidson court then adopted the holding of 

Meuwissen v. Department of Interior, 234 F.3d 9 (Fed. Cir. 2000): “ ‘[a] disclosure of information 

that is publicly known is not a disclosure.’ ” Davidson, 152 S.W.3d at 255 (quoting Meuwissen, 

234 F.3d at 13). Harper also relied on Moss v. Kentucky State University, 465 S.W.3d 457 (Ky. 

Ct. App. 2014), for the proposition that “the ‘disclosure’ of information which is public 

information or otherwise widely known within the organization cannot qualify as a whistleblower 

disclosure. The statute protects the whistleblower who exposes information not generally known.” 

Harper, 559 S.W.3d at 802. Moss, in turn, relied on Davidson, and concluded without citation that 

an employee is protected only if they are the initial reporter. Moss, 465 S.W.3d at 459-60.

¶ 57. The common theme is Meuwissen, which is at the center of Harper’s holding. The 

problem, however, is that Congress expressly repudiated Meuwissen when it enacted the 

Whistleblower Protection Enhancement Act, labeling Meuwissen as “contrary to congressional 

intent for the [Whistleblower Protection Act].” S. Rep. No. 112-155, at 5 (2012), as reprinted in

2012 U.S.C.C.A.N. 589, 593; see also supra, ¶ 24. Both federal and state courts have recognized 

“that Congress (in passing the [Whistleblower Protection Enhancement Act]) explicitly superseded 

Meuwissen’[s holding]” that “disclosures of information already known are not protected.” 

Daniels v. Merit Sys. Prot. Bd., 832 F.3d 1049, 1055 (9th Cir. 2016) (quotation omitted); see also 

O’Donnell v. Merit Sys. Prot. Bd., 561 Fed. App’x 926, 930 (Fed. Cir. 2014) (unpub. per curiam) 

(observing that enactment of Whistleblower Protection Enhancement Act, as codified in 5 U.S.C. 
24

§ 2302(f)(1), represented Congress’s “objection to the holding in Meuwissen . . . that disclosures 

of information already known are not protected” (quotation omitted)); Craig v. Not for Profit Hosp. 

Corp., 626 F. Supp. 3d 87, 105 n.12 (D.D.C. 2022) (same); Kolla’s, 529 P.3d at 54-55 (same). 

Harper fails to reconcile this problem, and it provides no persuasive reasoning beyond citing to 

cases entirely reliant on Meuwissen.

¶ 58. Second, Harper and the other cases cited by the majority interpreted the term 

“disclosure” as contained in their respective statutes, a term absent from § 973. See Ga. Code 

Ann. § 45-1-4(d)(2) (2012) (“No employer shall retaliate against a public employee for disclosing

a violation of or noncompliance with a law, rule, or regulation.” (emphasis added)); Harper, 559 

S.W.3d at 801-803 (interpreting “disclosure” as that term is defined in Ky. Rev. Stat. Ann. 

§ 61.103(1)(a) (West 2024) and used in Ky. Rev. Stat. Ann. § 61.102 (West 2024)). “Disclosure” 

and “report” have materially distinct meanings. A “report” is defined as a “written account,” a 

“[a] formal oral or written presentation of facts or a recommendation for action,” Report, Black’s 

Law Dictionary (11th ed. 2019), or simply “a usually detailed account or statement,” Report, 

Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/report

[https://perma.cc/3APT-CBYA]. See In re Vt. Permanency Initiative, Inc. Denial, 2023 VT 65, 

¶¶ 13-14, __ Vt. __, 312 A.3d 491 (looking to dictionary definition of term not defined in statute 

to ascertain term’s plain and ordinary meaning). In contrast, “disclosure” has a far more limited 

reach: “[t]he act or process of making known something that was previously unknown; a revelation

of facts.” Disclosure, Black’s Law Dictionary (11th ed. 2019) (emphasis added). As Pridgen

observed, the definitional difference between the two terms is significant, leaving cases that define 

“disclosure” in a restrictive manner to be of little use in interpreting Vermont’s statute. 653 S.W.3d 

at 185.

¶ 59. The distinction between these two terms is important given that the Vermont 

Legislature contemplated using “disclosure” in § 973. In the first draft of the Act, “disclosure” 
25

appeared as the original term in place of “report.” See H. Jour. 490, 2007-2008 Gen. Assem., 

Bien. Sess. (Vt. Apr. 1, 2008) (defining “protected activity” as “[p]roviding or disclosing 

information” of conduct that state employee reasonably believes is “a threat to the health of 

employees, the public or persons under the care of the state”). But eventually, the Legislature 

abandoned the “disclosure” language and replaced it with “report.” This conscious decision was 

no mistake, especially given the presence of “disclosure” in other whistleblower statutes. See 21 

V.S.A. § 507(b)(1) (prohibiting employer from retaliating against employee who “[d]iscloses or 

threatens to disclose . . . any activity . . . that the employee reasonably believes constitutes 

improper quality of patient care”); see also 9 V.S.A. § 5617(j)(1)(D) (prohibiting employer from 

retaliating against employee who makes “disclosures to a person with supervisory authority over 

the employee”). The Legislature’s deliberate choice of “report” in enacting § 973 must be given 

effect by the courts. See Northfield Sch. Bd. v. Washington S. Ed. Ass’n, 2019 VT 26, ¶ 15, 210 

Vt. 15, 210 A.3d 460 (“[W]e presume that the Legislature chose its words advisedly.” (quotation 

omitted) (alteration in original)); see also 2B N. Singer & J. Singer, Sutherland Statutory 

Construction § 51:2 (7th ed. 2007) (observing that “[c]ourts assume that a legislature always has 

in mind previous statutes relating to the same subject when it enacts a new provision” and that 

“[g]enerally . . . where a legislature inserts a provision in only one of two statutes that deal with a 

closely related subject, courts construe the omission as deliberate rather than inadvertent”).

¶ 60. In sum, I am convinced that § 973 protects reports of threats to state employees or 

persons under the state’s care, even if the threat or its underlying cause is well known. By 

submitting reports that inadequate mental health staffing posed an appreciable and ongoing threat 

to the safety of SSCF staff and inmates, plaintiff engaged in protected activity. That is true 

notwithstanding the fact that the staffing issues were already known. Protecting these 

corroborative reports (to the extent to they were purely corroborative) conforms to the plain 

language of § 973, reflects the Legislature’s intent, and furthers § 973’s public policy.
26

III. Sufficiency of Comparator

¶ 61. Given my conclusion that plaintiff engaged in protected activity, I now turn to 

DOC’s argument concerning the final stage of the burden-shifting framework under McDonnell 

Douglas—whether plaintiff proved by a preponderance of the evidence that DOC’s stated reasons 

for terminating plaintiff were pretextual.8 Griffis, 2008 VT 125, ¶ 12. DOC contends plaintiff 

could not establish pretext because the individual he identified as a “comparator” did not engage 

in conduct of comparable seriousness. DOC argues that the trial court erred in admitting the 

comparator evidence. 

¶ 62. When a defendant gives a legitimate and nonretaliatory reason for an adverse 

employment decision, a plaintiff can point to the defendant’s different treatment of a similarly 

situated individual as a “comparator” to show that the reason is pretextual. See Iuorno v. DuPont 

Pharm. Co., 129 Fed. App’x 637, 640-41 (2d Cir. 2005) (summary order) (observing that use of 

comparator is one method for establishing pretext). As McDonnell Douglas explained, evidence 

of disparate treatment between employees who allegedly engaged in conduct of “comparable 

seriousness” is “[e]specially relevant” to showing pretext. 411 U.S. at 804. A plaintiff can 

therefore establish pretext by “showing that the employer subjected [them] to disparate treatment, 

that is, treated [them] less favorably than a similarly situated employee outside of [their] protected 

group.” Graham v. Long Island R.R., 230 F.3d 34, 38-39 (2d Cir. 2000).

¶ 63. A plaintiff may use a fellow employee as a comparator only if that employee is 

“similarly situated to the plaintiff in all material respects.” Radwan v. Manuel, 55 F.4th 101, 132 

(2d Cir. 2022) (quotation omitted). Whether two persons are so situated “in all material respects” 

8

 On appeal, DOC challenges only the “protected activity” element of plaintiff’s prima 

facie claim for lack of legally sufficient evidence. No other prima facie element under McDonnell 

Douglas is at issue. See Griffis, 2008 VT 125, ¶ 12. There is also no argument that defendant 

failed to articulate a legitimate and nondiscriminatory reason for terminating plaintiff. Therefore, 

the only remaining dispute concerns DOC’s final claim on appeal—whether plaintiff adduced 

legally sufficient evidence to show that DOC’s reasons for terminating plaintiff were pretextual.
27

is case specific and involves a two-part inquiry: “(1) whether the plaintiff and those [s]he maintains 

were similarly situated were subject to the same workplace standards and (2) whether the conduct 

for which the employer-imposed discipline was of comparable seriousness.” Id. (quotation 

omitted) (alteration in original).

¶ 64. The following additional facts are relevant to plaintiff’s application of the 

comparator theory. At trial, DOC proffered legitimate reasons for terminating plaintiff. Ante, ¶ 2. 

Primarily, DOC explained that it terminated plaintiff for intimidating a health services professional 

into changing her recommendation of a seriously functionally impaired inmate from “segregation 

is contraindicated” to “segregation is contraindicated for more than [fourteen] days.” This conduct 

potentially placed the inmate “at further risk of harm.” DOC found that plaintiff engaged in 

conduct that was intimidating, coercive, unprofessional, and demeaning, as well as improperly 

“expressing concerns or frustrations in the presence of subordinate employees.” It concluded that 

plaintiff violated two Work Rules: Work Rule 6, which prohibits an employee from engaging in 

demeaning, harassing, or insulting behavior towards other employees or offenders, and Work Rule 

9, which prohibits an employee from comporting themselves “in a manner that reflects discredit 

on the DOC.” DOC reasoned that plaintiff’s conduct warranted immediate termination under 

DOC’s Human Resources Policy 9.1.

¶ 65. To counter DOC’s rationale, plaintiff introduced comparator evidence related to 

plaintiff’s successor as superintendent, Edward Adams. Much of that evidence came through the 

testimony of Caroline Marsh, who served as the assistant superintendent under Adams and 

plaintiff. Marsh recounted numerous incidents where Adams engaged in behavior that was 

demeaning, harassing, bullying, intimidating, homophobic, and sexist.

¶ 66. In one such incident, Marsh felt physically threatened by Adams as he screamed at 

her and her colleagues for having raised safety and security concerns. In another, Adams instructed 

Marsh and another female staff member to deal with an individual heard crying “because dealing 
28

with emotions was women’s work.” Adams also physically threatened Marsh after she resisted 

his efforts to order new televisions in violation of an agency directive. In one episode of 

harassment, Adams threw objects at Marsh while raging about a caseworker’s work performance. 

That particular area of frustration led Adams to ask Marsh if he “need[ed] to unzip his pants” in 

order for the caseworker to follow his instructions. In fact, Adams told Marsh that he “got hard at 

the idea of firing people.” Marsh was also the subject of Adams’s homophobic innuendos, with 

Adams targeting her sexuality and mocking the sexuality of an inmate.

¶ 67. After accepting another job, Marsh reported these incidents to DOC in a written 

report and verbally during her exit interview with DOC officials. Although Adams was walked 

out of SSCF the day after Marsh’s exit interview, he remained employed with DOC. 

¶ 68. DOC argues that, as a matter of law, plaintiff was not similarly situated to Adams 

because plaintiff engaged in more serious misconduct.9 However, this Court has explained that 

“in comparing employment discipline decisions, precise equivalence in culpability between the 

employees is not required.” In re Grievance of Butler, 166 Vt. 423, 431, 697 A.2d 659, 665 (1997) 

(quotation omitted). We have instead set a lenient standard for determining whether two 

individuals are legally comparable in the employment context. “The test is whether a prudent 

person, looking objectively at the incidents, would think them roughly equivalent and the 

protagonists similarly situated.” Id. (quotation omitted) (emphasis added).

¶ 69. This standard reflects the broad agreement that the “similarly situated” inquiry is 

fact specific and should be left to the factfinder. As such, “the question [of] whether two 

employees are similarly situated is a question of fact for the jury.” Radwan, 55 F.4th at 132 

(quoting Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003)); Brown v. Daikan Am. 

9

 The parties appear to agree that both plaintiff and Adams were subject to the same 

workplace standards, thus satisfying the first prong of the “similarly situated” inquiry. See 

Radwan, 55 F.4th at 132.
29

Inc., 756 F.3d 219, 230-31 (2d Cir. 2014) (reversing dismissal for failure to state a claim because 

whether plaintiff and comparators were similarly situated was question of fact, not law). A court 

should not displace the jury’s role as the factfinder so long as the evidence provides “an objectively 

identifiable basis for comparability.” Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 54 (2d 

Cir. 2014) (quotation omitted).

¶ 70. Plaintiff met that threshold here. DOC found that plaintiff engaged in conduct that 

violated Work Rules 6 and 9, both of which largely concerned plaintiff’s behavior towards a fellow 

staff member and the effects it could have on an inmate’s health. However, at the center of 

plaintiff’s termination was his abusive, coercive, and harassing conduct towards other staff. 

Plaintiff offered evidence that Adams likewise engaged in conduct that exhibited all of these traits. 

A rational juror could therefore conclude that plaintiff and Adams engaged in conduct of similar 

seriousness.

¶ 71. To be sure, DOC notes that plaintiff’s conduct posed a possible risk to an inmate’s 

health.10 It points out that placing a seriously functionally impaired inmate in segregation could 

cause that inmate’s mental health to worsen and possibly lead to self-harm. But there was also 

evidence that the poor morale of the staff likewise posed a safety risk to SSCF operations. Plaintiff 

testified about how low morale among correctional staff could create an environment leading to a 

higher risk of jeopardizing the health of inmates. Marsh followed up on that evidence by testifying 

how Adams created that intolerable environment with his abusive behavior. Regardless of how 

DOC labels their conduct, both Adams and plaintiff arguably risked the health of inmates based 

10

 Indeed, DOC attempts to distinguish plaintiff from Adams by noting that plaintiff’s 

conduct also violated Work Rule 3, which prohibits any behavior that endangers a member of the 

public, and a DOC directive which governs placing an inmate with a mental illness in segregation. 

But DOC did not find that plaintiff’s conduct rose to the level of violating either of those 

provisions. To the extent that DOC speculates plaintiff violated those provisions, it has no bearing 

on DOC’s stated reasons for terminating plaintiff and is therefore irrelevant for the comparator 

inquiry.
30

on the evidence. Dotson v. City of Syracuse, 763 Fed. App’x 39, 41 (2d Cir. 2019) (summary 

order) (“[T]he different labels given to the two infractions . . . obscure their similar underlying 

facts.”). It is, of course, debatable if the effects of that misconduct were of equal seriousness. But 

that debate was for the jury.

¶ 72. DOC also contends that, unlike Adams, plaintiff induced another to commit 

misconduct when he directed an employee to convince the health services professional to change 

her assessment of the inmate’s suitability for segregation. But Adams likewise tried to induce 

Marsh into committing misconduct. According to the evidence, Adams sought to force Marsh into 

purchasing televisions for a particular unit of SSCF, which Marsh believed violated a DOC 

directive. Regardless of how convincing that comparison is, that task must be left to the finder of 

fact.

¶ 73. In all, the record evidence is enough for a rational jury to conclude that plaintiff 

and Adams were engaged in conduct of comparable seriousness. This is not to say that plaintiff’s 

conduct could not be distinguished from Adams’s, or that plaintiff’s evidence was exceptionally 

strong. While differences do exist between plaintiff and Adams, they “are not so significant that 

a reasonable juror would be precluded from deciding that these employees engaged in conduct of 

comparable seriousness.” Berube v. Great Atl. & Pac. Tea Co., 348 Fed. App’x 684, 687 (2d Cir. 

2009) (summary order). The trial court properly left this ultimate question of fact for the jury. 

Based on the evidence before it, the jury concluded that the two were similarly situated. That 

determination should remain undisturbed.

IV. Future Waste as Protected Activity and Effect of General Verdict

¶ 74. The remaining question is how to properly resolve this appeal from a general 

verdict. Plaintiff proffered two theories that he engaged in protected activity under § 973: his 

reports of potential waste and his reports of inadequate mental health staffing. The general verdict 
31

here did not distinguish between the two. But given the above, plaintiff could prevail on at least 

the latter theory. As a result, the judgment must be affirmed.

¶ 75. This Court has addressed the impact of a general verdict when an appeal from that 

verdict involves multiple theories for liability. “When the party seeking appellate reversal of a 

judgment against it has failed to request a special verdict or interrogatories which would shed light 

on the jury’s treatment of multiple theories, that failure is significant.” Contractor’s Crane Serv., 

Inc. v. Whey Abatement Auth., 147 Vt. 441, 446, 519 A.2d 1116, 1170 (1986). This significance 

reflects the appellant’s obligation to “demonstrate[] both error and prejudice.” Id. In civil cases 

involving multiple independent theories of liability, defendants who lose at trial must either “show 

error affecting all theories of recovery or error affecting the theory upon which the jury relied.” 

John A. Russell Corp. v. Bohlig, 170 Vt. 12, 18, 739 A.2d 1212, 1218 (1999). When there is no 

special verdict or interrogatories, an appealing defendant must “establish error that undermines all 

theories of liability submitted to the [factfinder]. If any single theory of recovery is untainted by 

error, we will affirm the lower court’s judgment.” Contractor’s Crane Serv., 148 Vt. at 446, 519 

A.2d at 1171.

¶ 76. Such is the case here, and in my view, it is fatal to DOC’s appeal. The jury returned 

a general verdict for plaintiff wherein it found that DOC terminated plaintiff’s employment in 

relation for protected activity. That finding was followed by the jury’s award of $605,000 to 

plaintiff. The jury also found that DOC’s retaliatory conduct was not willful, intentional, or 

egregious. The jury provided us with no other information in the general verdict. We therefore 

are unable to ascertain which activity—reports of waste or reports of inadequate mental health 

staffing—the jury relied upon to reach a verdict in plaintiff’s favor. Stated differently, we “cannot 

determine from the general verdict whether the jury was convinced” by the theory that plaintiff’s 

reports of potential waste was protected activity under § 973 since “[i]t could just as well have 
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been convinced under the alternative theory” that § 973 protected plaintiff’s reports on inadequate 

mental health staffing. John A. Russell Corp., 170 Vt. at 19, 739 A.2d at 1218.

¶ 77. Accordingly, there is no need to address DOC’s claim that plaintiff’s reports of 

potential waste were not protected.11 Plaintiff could prevail in his § 973 whistleblower claim under 

11

 While I agree with the majority that plaintiff’s reports of potential waste were not 

protected activity, I would reach that conclusion on different grounds. The majority relies on the 

statute’s use of the present perfect phrase “has engaged in” to conclude that § 973 encompasses 

only reports of waste that has already taken place, not waste that will occur. Ante, ¶¶ 15-21. True, 

the use of the present perfect phrase “has engaged in” would normally refer to an act that has been 

completed or is ongoing. See Barrett v. United States, 423 U.S. 212, 216 (1976) (observing that 

Congress used present perfect tense to “denot[e] an act that has been completed”); see also 

Dobrova v. Holder, 607 F.3d 297, 302 (2d Cir. 2010) (relying on Chicago Manual Style ¶ 5.119 

(15th ed. 2003)). But the terms surrounding “waste” in § 973 are similarly limited by the “has 

engaged in” qualifier. See United States v. Lockhart, 749 F.3d 148, 152 (2d Cir. 2014), aff’d, 577 

U.S. 347 (2016) (observing that under “series qualifier” canon of statutory construction, “a 

modifier at the beginning or end of a series of terms modifies all the terms” (quotation omitted)). 

The majority’s temporal limitation therefore necessarily extends to reports of violations of law, 

fraud, and abuses of authority.

Respectfully, the majority’s interpretation of § 973 would lead to an untenable outcome. 

Fraser v. Sleeper, 2007 VT 78, ¶ 12, 182 Vt. 206, 933 A.2d 246 (“We interpret statutes to avoid 

absurd and illogical results such as this in favor of reasonable construction when a plain reading 

of the statute would produce a result demonstrably at odds with any conceivable legislative 

purpose.” (quotation omitted)). It leaves an employee unable to prevent a potential fraud, abuse 

of power, or violation of the law by prophylactically raising the issue before the harm materializes. 

I cannot accept that the Legislature wanted employees to sit on their hands instead of potentially

preventing the commission of fraud, abuses of power, or violations of law. Cf. Reid v. Merit Sys. 

Prot. Bd., 508 F.3d 674, 678 (Fed. Cir. 2007) (“The government is far better served by having the 

opportunity to prevent illegal, wasteful, and abusive conduct than by notice that it may only act to 

reduce the adverse consequences from such conduct that has already occurred.”).

Instead, I believe plaintiff’s reports on waste were not protected under § 973 because, based 

on the facts and surrounding circumstances, they merely reflected a policy dispute. Plaintiff’s 

reports of waste were, at their core, concerns about DOC paying more if it failed to find funds to 

finish a project in the near term. The Act was not designed to insulate employees engaged in 

policy disputes over available funds to finish a construction project within a more ideal timeframe. 

See Johnson v. District of Columbia, 225 A.3d 1269, 1275 (D.C. 2020) (“[T]he [District of 

Columbia Whistleblower Protection Act] is not meant to be a weapon in arguments over policy.” 

(quotation omitted)). That is true even if plaintiff’s preferred policy might eventually extend to 

the safety of SSCF. “In many routine policy disagreements, any given position might be 

characterized as creating a risk to public health [or] safety.” Edwards v. Commonwealth, 174 

N.E.3d 1153, 1165 (Mass. 2021) (quotation omitted).
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the theory that his reports of insufficient mental health staffing was protected activity. The 

judgment should be affirmed on that basis. Respectfully, I dissent.

Associate Justice