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MAINE SUPREME JUDICIAL COURT                                               Reporter of Decisions

Decision:       2005 ME 32

Docket:         Ken-04-211

Argued:        October 20, 2004

Decided:       February 23, 2005

Panel:   SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, and

LEVY, JJ.

VIRGINIA BLAKE

v.

CLIFFORD, J.

[¶1]  Virginia Blake appeals from a summary judgment entered in the Superior Court (Kennebec County, Marden, J.) in favor of the State of Maine.  Blake contends that the court erred in declaring that she had not presented evidence to create a genuine issue of material fact as to whether she suffered an adverse employment action pursuant to the Maine Whistleblowers' Protection Act (WPA), 26 M.R.S.A. §§ 831-840 (1988 & Supp. 2004), in particular, whether her evidence was sufficient to show that she was working in a hostile environment.  We find no error and we affirm the summary judgment. 

[¶2]  The facts viewed in the light most favorable to Blake, the non-moving party, may be summarized as follows: Blake worked as a caseworker for the Department of Behavioral and Developmental Services in Washington County.  Her work included providing support services and coordination of support services for adults with mental retardation or autism.  Curtis L. Johnson, who had been Blake's co-worker, was promoted and became Blake's supervisor. 

[¶3]  Blake's statement of material facts alleged that beginning in June of 2001, she had problems with Johnson in his role as supervisor, and she presented the following evidence: (1) Blake questioned whether Johnson observed proper boundaries with two of her clients, who had formerly been clients of Johnson, and when she met with Johnson regarding this matter he glared at her; (2) after Blake reported that Johnson had commingled funds when ordering cigarettes for clients from a mail order company, Johnson met with Blake behind closed-doors and acted in a "threatening" manner by folding his arms in front of him and glaring at her; (3) after Blake informed the office of the advocate that Johnson did not report the possible injury of a client, Johnson sent a memo criticizing Blake's use of a bulletin board to post union materials, and treated her in a rude and disrespectful manner when discussing these activities; (4) after Blake reported that a physician may have treated one of Blake's clients without the required consent, Johnson confronted Blake in a copy room with the door closed and told her that he planned to meet with both his supervisor and Blake to discuss Blake's behavior toward the physician; (5) Johnson and his supervisor met with Blake in a counseling session;  and (6) after the session, Blake had some clients transferred from her caseload.  Blake resigned on February 20, 2002, the same day that Johnson transferred some of her clients.

[¶4]  Blake contends that she presented sufficient facts to defeat the State's motion for a summary judgment.  We review the entry of a summary judgment de novo, "viewing the evidence in the light most favorable to the party against whom the judgment was entered."  Cole v. Chandler, 2000 ME 104, ¶ 4, 752 A.2d 1189, 1193 (internal quotation omitted).  In order to prevail on a motion for a summary judgment, "the plaintiff must establish a prima facie case for each element of her cause of action."  Doyle v. Dep't of Human Servs., 2003 ME 61, ¶ 9, 824 A.2d 48, 52.  If a plaintiff does not present sufficient evidence on the essential elements of her cause of action, the defendant is entitled to a summary judgment.  Id. 

[¶5]  The WPA provides in pertinent part:

No employer may discharge, threaten or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location or privileges of employment because:

A.     The employee, acting in good faith . . . reports orally or in writing to the employer or a public body what the employee has reasonable cause to believe is a violation of a law or rule adopted under the laws of this State, a political subdivision of this State or the United States;

B.     The employee, acting in good faith . . . reports to the employer or a public body, orally or in writing, what the employee has reasonable cause to believe is a condition or practice that would put at risk the health or safety of that employee or any other individual . . . .

26 M.R.S.A. § 833 (1988 & Supp. 2004).  In order to prevail on a claim of unlawful retaliation "pursuant to the WPA, an employee must show (1) that she engaged in activity protected by the WPA, (2) that she experienced an adverse employment action, and (3) that a causal connection existed between the protected activity and the adverse employment action."  DiCentes v. Michaud, 1998 ME 227, ¶ 14, 719 A.2d 509, 514.  Blake must establish all three elements of a WPA claim.  See id. 

[¶6]  As to the first prong of Blake's WPA claim, the trial court correctly concluded that an issue of material fact existed as to whether Blake's acts fall within the protection of the WPA, because Blake (1) reported Johnson's improper commingling of funds related to cigarette purchases for clients, (2) alleged that Johnson had improper interaction with her clients, (3) reported Johnson's failure to report suspected abuse, and (4) reported possible improper conduct by a service provider.  The evidence was sufficient to generate an issue of material fact that Blake engaged in an activity protected by the WPA. 

[¶7]  As to the second prong, the court found that the evidence of adverse employment action presented by Blake was insufficient to prevent the entry of a summary judgment against her, concluding that the incidents described by Blake were not the type of adverse actions contemplated by the WPA.  See, e.g., id. ¶ 18, 719 A.2d at 515 (failure to recommend an employee for future employment was insufficient to constitute a WPA violation); Nelson v. Univ. of Me., 923 F. Supp. 275, 283 (D. Me. 1996) (criticism of a professor and a letter to her personnel file does not constitute a WPA violation); Paquin v. MBNA, 233 F. Supp. 2d 58 (D. Me. 2002) (failure to grant a reassignment is not an adverse employment action).

[¶8]  Blake also contends, however, that she experienced a hostile work environment, which she argues constitutes an adverse employment action under the second prong of the WPA claim.  To demonstrate the presence of a hostile work environment, an employee must show "repeated or intense harassment sufficiently severe or pervasive to create an abusive working environment."  Doyle, 2003 ME 61, ¶ 23, 824 A.2d at 56.   When determining whether a hostile work environment claim exists, the court must "look to