Pushard v. Riverview Psychiatric Center

ST ATE OF MAINE AUGUSTA SUPERIOR COURT
KENNEBEC, ss. DOCKET NO.: AUGSC-CV-17~134

ROLAND E. PUSHARD, III )
)
Plaintiff, )
)
V. ) ORDER ON DEFENDANT'S
) MOTION FOR SUMMARY
RIVERVIEW PSYCHIATRIC ) JUDGMENT
CENTER )
)
Defendant. )

This matter is before the court on the Defendant's Motion for Summary Judgment.

BACKGROUND

This case involves the alleged retaliation by the Riverview Psychiatric Center

("Riverview" or "Defendant"), against its former employee Roland Pushard ("Pushard"

or "Plaintiff"). After Pushard made a variety of complaints to his supervisor at Riverview,

it allegedly engaged in an adverse action against Pushard by terminating him. Pushard

brought an administrative action before the Maine Human Rights Commission against

Riverview. The action was dismissed after the Commission issued Pushard a right to sue

letter on May 11, 2017. Subsequently, Pushard filed a Complaint with this court on June

28, 2017, alleging a violation of the Whistleblowers' Protection Act ("VVPA"). On February

1, 2018, the Complaint was amended over Riverview's objection to add a second count of

unpaid wages. Riverview moved to dismiss Count It arguing that it was barred by

sovereign immunity and that Pushard failed to exhaust his administrative remedies in

seeking payment of the wages allegedly due to him. On June 6, 2018, the court agreed

with Riverview and dismissed Count II of the Amended Complaint. Riverview now

moves for summary judgment on the remaining Count.

1
The following facts are taken from the parties' Statement of Material Facts ("SMF")

and are undisputed unless otherwise noted.

Pushard was employed with Riverview as a nurse from October 2006 through

October 2015. (Defendant's S:tvIF ("DSMF") <j[9I 1-2.} Pushard became the Director of

Nursing ("DON") around June 2014. (DSMF 91 10.) His supervisor was Jay Harper

("Harper"), the Superintendent of Riverview. (DSMF 9191 11-12.) It has been publicly

known for years that Riverview has been historically understaffed. (DSlvIF 9191 14-15.)

Riverview was, and still is, under a consent decree with the State regarding its

management and staffing. (Plaintiff's Additional SMF ("PASMF") 91 136.) Pushard and

Harper had discussions about this understaffing and disagreed about whether mental

health workers or acuity specialists were more appropriate to hire. 1 (DSMF <JI9I 17-18.)

Harper and Pushard also disputed the appropriate role of nurse educators; Pushard

wanted them to be more hands-on and "on the floor" with the patients as opposed to a

more administrative setting. (DS:MF <JI 20, PAS:MF <JI 142.) Pushard was outspoken about

staffing issues. (PASMF 9I 260.)

Colleen Cutler was the Assistant Director of Nursing("ADON") during this time

and held opinions similar to Pushard's regarding staffing and the role of nurse educators

that she expressed to Harper. (DS:tv1F <JI 24, PAS:tv1F 9I 150.) Around November 2014,

during Cutler's time as ADON, Pushard believed that Harper treated her disrespectfully

and took her office from her. (DSMF 19I 25-26.) Pushard told Harper that that he thought

the way he was treating the ADON was wrong. (DS:tv1F 911 28-29.) Pushard never

specifically said that he thought these actions were illegal, but he did describe them as

1 Mental health workers are usually Certified Nursing Assistants ("CNAs") who can also help
out with hands-on patient care. Acuity specialists are not usually CNAs but have more formal
education that they use to keep patients from acting out.

2
"retaliatory" to Harper. (DSMF <n 30, PAS:MF <JI 30.) Ultimately, a few months after he

began complaining about her treatment to Harper, Pushard moved the ADON into his

office, and although Harper did not approve, he did not move her out of Pushard's office.

(DSMF <JI<JI 32-35.)

In early 2015, Pushard reported to Harper that someone had told him that Nurse

B may have sent paperwork outside of Riverview concerning a patient. (DS:rvfF <JI<JI 37-38.)

Pushard did not know for sure if anything had been sent, or what might have been sent,

but was concerned that it could have been a HIPAA violation. (DS:MF <JI'iI 39-40.) After

receiving Pushard's report, Harper found out what information Nurse B sent outside

Riverview and had Risk Management review it. (DSMF 9I 46.) Risk Management did not

find that it was a HIP AA violation. (DSrviF 9I 46.) Pushard and Harper never spoke about

the transmittal of information after Pushard reported it. (DS:rvffl <JI 43.)

Pushard was aware that Riverview had policies mandating reports of any out-of-

the-ordinary incidents and allegations of patient mistreatment. (DSMF <][<j[ 47, 51.) These

policies, in their essence, describe that anything out of the ordinary, or that could

potentially be a harm to patients, whether by affirmative action or omission of action,

were to be reported through an Incident Report. A determination would then be made as

to whether an investigation was warranted.2 (DS:rvfF 919149-52.) The patient mistreatment

policy highlighted that abuse or neglect could occur unintentionally, and that abuse or

neglect could occur even when the patient suffered no harm. (DSMF <][ 53.) All employees

were subject to the policies which required them to immediately report "abuse, neglect

2 Pushard objects to the policies as being inadmissible hearsay. The court determines that with an
appropriate foundation these policies would fall under the business records exception to hearsay
and therefore may be appropriately considered on this summary judgment record.

3
and exploitation, which they have witnessed or have knowledge of" to the appropriate

person on duty. (DSMF <JI 55.)

In March or April 2015, Pushard heard rumors that Nurse A was tired, having

difficulty performing her job, and may have been diverting patients' medication. (DSMF

Cf[ 60.) Pushard was aware that Nurse A slept in her car on breaks. (PAS:MF CJI 193.)

Pushard did not report these rumors to Harper because he thought they were unfounded

as they originated with a nurse who didn't like Nurse A, but he did ask the ADON to

look into them. (DSMF <JI 62.) Pushard states that he checked with the pharmacy to see if

any drugs were missing, but none were. (P ASMF <JI 184.) The ADON reported this same

information to him. (DSMF 9I 63.) Pushard and the ADON thought Nurse A was working

too many hours and was tired, so he took her off the mandated overtime list.

(DSMF (jl 65.) He also gave her sick leave and told her not to be in the medication room.

(PASMF 9165.) Sometime between February and April 2015 Pushard became aware that

Nurse A had been disciplined by the Board of Nursing in the past, but he did not know

for what. (S:MF3 9[ 69.) Pushard did not report any of these allegations against Nurse A to

anyone listed in the policies addressing out-of-the-ordinary incidents or patient

mistreahnent. (DS:MF <JI 67.)

In late May 2015, a psychiatrist and nurse supervisor at Riverview submitted

written incident reports regarding Nurse A. (DSNIF <JI 72.) Within a few days of this

report, Pushard emailed Nurse A telling her not to take any overtime as she had been

tired, and for the same reason to refrain from giving patients medication. (DS:MF 9I«JI 73-

74.) On May 28, 2015, Nurse A was placed on administrative leave pending investigation.

(DSMF 9I 75.) Ultimately, the allegation against Nurse A for diverting medications was

3 DSMF, P ASMF, and the replies of the parties.

4
not substantiated, but the allegation of inattentiveness and/ or sleeping on duty was

substantiated and she was terminated from Riverview. (DSMF 9I9I 121-23.)

Pushard and the ADON were placed on paid administrative leave on June 8, 2015,

pending an investigation of allegations that they had prior knowledge of the concerns

about Nurse A, failed to respond appropriately, and failed to appropriately report those

concerns. (DSMF 9191 77-78.) As part of its investigation, Human Resources reviewed

emails and interviewed employees who said they reported concerns to Pushard as early

as January 2015. (DSMF 9I9I 79-88, 94.) When Human Resources interviewed Pushard, he

said he did not remember if anyone had reported to him that Nurse A seemed impaired

while on duty or suggested any other course of action than what he took. 4 (DS1v1F <JI<_[ 82,

84.) The investigators did not find Pushard's failure to remember reports from employees

credible.5 DSMF <j[ 108. The report concluded that Pushard failed to appropriately report

and act on the safety concerns reported to him, including failing to create a plan to

monitor the safety issue but instead impermissibly relied on subordinate staff, the

ADON, to do it. (DS:MF 1109.)

4 Pushard objects to these facts as hearsay and claims that because some of these reports were
unsubstantiated they are not relevant. The court disagrees. They fall with.in an exception to
hearsay because they are business records, or not hearsay at all be,cause they are not offered for
the truth of the matter, but instead to show the basis of the investigation and why the decision-
maker acted as he did. Further, even ff the reports are unsubstantiated, that does not negate the
fact that by policy, they were required to be reported so a decision could be made whether to
investigate.

5 Pushard again objects to this on hearsay and relevance grounds and denies it as inconsistent
with other sections of the report that detailed the actions he did take. Many of the next facts are
objected to and denied on these same bases. Given the court's conclusion in this case, however,
these facts are not materiaL

5
Shortly after Pushard was put on administrative leave, on June 12, 2015, Harper

initiated a Root Cause Analysis ("RCA"). (DS:MF 9196.) The purpose of an RCA is to look

at barriers to reporting information within Riverview, whether nursing leadership

promoted any of those barriers, and whether any information was covered up. (DS:tvIF

9I 96.) The RCA was completed in July 2015. (DS:MF <JI 95.) On August 26, 2015, after

reviewing the investigative report and the RCA, then-Deputy Commissioner Ricker

Hamilton ("Hamilton") recommended that Pushard be terminated. (DSMF /DSRMF

<JI9I 110-11.) Throughout Pushard's employment and investigation, Harper had weekly

meetings with Hamilton and Pushard would often come up as a topic at these meetings.

(PAS:MF 9191132;.33.)

Pushard attended a "Loudermill" hearing with his attorney on September 17, 2015,

and a separate director, Barry MacMillan, heard the information presented by Pushard

and his attorney and reviewed it alongside the investigative report prepared by Human

Resources. 6 (DSMF «Jl<JI 113-14.) On October 9, 2015, MacMillan informed Pushard that

she deemed his termination just and appropriate and his employment was terminated

the same day. (DS:tvIF «[<[ 115-16.) Pushard became employed with Maine General

Hospital as a nurse in November 2015 but he does not supervise anyone there. (DS:MF

91124, 128.} Since 1995 he has held supervisory nursing positions. (DSMF 1<JI 4-9.)

DISCUSSION

Summary judgment is appropriate on a WP A claim if the employer shows that

there is no genuine issue of any material fact and that the employee's evidence does not

establish a prima facie case for the elements of a VvPA claim. Brady v. Cumberland Cty.,

6 Despite Pushard's objection, this fact is relevant to show that an impartial person reviewed the
information and found that Pushard's termination was just and appropriate.

6
2015 ME 143, <j[ 39, 126 A.3d 1145. To create a genuine dispute, the employee must present

evidence creating a "triable issue" on each element. Id. "If the evidence in the summary

judgment record would allow a jury to find for the employee on each element of the

employee's case, then the employer is not entitled to summary judgment." Id. The

evidence in the statements of fact and record references are viewed in the light most

favorable to the non-moving party. M.R. Civ. P. 56(a), {c); Platz Assocs. v. Finley, 2009 ME

55, 9I 10, 973 A.2d 743 (internal citations omitted). A fact is material if "it has the potential

to affect the outcome of the suit." Id. For purposes of summary judgment, the employee

has a "relatively light" burden of proving a prima fade case of retaliation. Brady, 2015 J\1E

143, 9I 14, 126 A.3d 1145.

I. Retaliation in Violation of the Maine Whistleblowers' Protection Act

An employee plaintiff must show three elements to succeed in an action for

whistleblower retaliation: (1) that he engaged in protected activity; (2) that the employer

took adverse employment action against him; and (3) that there was a causal connection

between the protected activity and adverse employment action. Id. «n 32. If the employee

makes a prima facie showing of all three elements, then "the employer's evidence of a

lawful reason for the adverse employment action ... merely creates a dispute of material

fact and precludes the court from granting summary judgment to the employee." Id. 9I 35.

It is appropriate for the court to seek guidance from federal jurisprudence to guide its

analysis of WPA Claims. Id. <JI 19 n.5.

A. Are Pushard's Complaints Protected Activity Under the WPA?

The WPA provides that no employer is permitted to

discharge, thr~aten or otherwise discriminate against an employee
regarding the employee's compensation, terms, conditions, location or
privileges of employment because .. . [t]he employee, acting in good faith .
. . reports orally or in writing to the employer ...what the employee has
reasonable cause to believe is a violation of a law [or] what the employee

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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)(A)-(B). The reported condition, activity, or practice does not

have to "actually be unsafe or illegal; ... an employee's reasonable belief that it

crosses the line suffices, as long as the complainant communicates that belief to his

employer in good faith." Higgins v. New Balance Ath. Shoe, Inc., 194 F.3d 252, 261-

62 (1st Cir. 1999). Protected activity has been found when the employee believes

that she is bringing the issue to the employer's attention. Cormier v. Genesis

Healthcare LLC, 2015 ME 161, 9112, 129 A.3d 944.
Riverview argues that Pushard did not engage in any activity that was protected

by the WP A for three main reasons. First1 his conversations with Harper regarding

staffing and his requests for hands-on nurse educators did not unearth or expose an

unsafe practice and therefore do not amount to protected activity. Second, his objections

to his supervisor's treatment of the ADON were not made under the reasonable belief

that his supervisor's actions were illegal, therefore he carmot establish the required "good

faith belief" to be protected under the WP A. Lastly, his lack of a good faith belief that

confidential information constituting a HIP AA violation was sent outside of Riverview

denies him protection under the WPA. Def.'s Mot. Summ. J. 11-14.

In response, Pushard argues that he was the most frequent and outspoken in

opposition to Harper's decisions regarding staffing at Riverview and that he made

specific objections to his supervisor's staffing decisions. Pl.'s Opp'n Summ. J. 1-2. Further,

he asserts that he need not use legal terms to be protected by the WP A. He contends that

his opposition of the treatment of the ADON as "retaliatory" is sufficient to fall within

the ,tVPA' s protection, and that reporting a potential release of"confidential" information

is enough to be protected under the WPA. Pl.'s Opp'n Summ. J. 12-13.

8
B. Did Pushard Expressing His Concerns to Harper Regarding Hiring
Acuity Specialists Instead of Mental Health Workers and that the Nurse
Educators Should Have Been More Hands-On Instead of Academic or
Administrative Amount to Activity that is Protected by the WP A?

Whether Pushard voicing his differing opinion about how Riverview should have

been staffed arnoW1ts to protected activity boils down to whether the vVPA was designed

to protect this type of "reporting." As Riverview points out, the fact that it was

understaffed was commonly discussed within its four walls, at the State Legislature, and

within the media. Riverview alleges that Pushard "did not believe that he was making

anyone aware of anything they did not already know." Def.'s Mot. Summ. J. 2. Riverview

advances this same argument in regard to Pushard's discussions with Harper about the

nurse educators and where and how they should spend their time. Def.'s :tviot. Summ. J.

2. Riverview asserts that Pushard cannot show he held a reasonable belief that a danger

or illegality existed and that his report would bring the safety issue to Riverview's

attention. Def.'s Mot. Summ. J. 11.

Riverview first cites to Cormier v. Genesis Healthcare LLC, 2015 ME 161, 129 A.3d

944 for support. There, after the employer reduced the number of Certified Nursing

Assistants (''CNAs") on each shift, but still kept the required number of staff on per the

regulations, the CNAs were not able to get to patients promptly when they called for

assistance. Id. 9I 2. The plaintiff CNA "believed that these delays put residents at a higher

risk for falls because they would try to get out of bed by themselves." Id. Cormier made

multiple reports of her concerns to the Director of Nursing, charge nurses, and a nurse

educator. Id. 9I 3.

The Law Court held that the Superior Court correctly determined that these

reports were "protected activity" under§ 833(1)(B) specifically. Id. <JI<]I 15-16. Cautioning

9
that although not every complaint that relates to safety triggers that provision, it clarified

that section 833(1)(B)

protects employees who, in good faith, make safety-related complaints
when the employee reasonably believes that a dangerous condition or
practice exists. A complaint is made in good faith if the employee's
motivation is to stop a dangerous condition. A complaint is supported by
reasonable cause when the employee has a subjective and objectively
reasonable belief that a dangerous condition or practice exists.

Id. <]I 11 (internal citations omitted). Cormier's presentation of evidence that she

complained to supervisors about the understaffing conditions, coupled with the evidence

that some patients were "harmed or exposed to harm" from the slowed response time

due to the understaffing was "sufficient to support a finding that Cormier 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] a ttention." Id. <]I 12 (emphasis

added).

Here, Riverview points to the general knowledge of the public, media, and

employees that Riverview had issues with being understaffed. Pushard's complaints

touched on health and safety issues, but that is not the only requirement necessary to

blow the whistle under the WP A. Pushard was not necessarily making Riverview aware

of something that it did not know already, namely that there were staffing problems and

a number of different approaches to take to solve those problems. Protected activity must

be a report of a violation of law or an unsafe condition, and it must make the employer

aware of something that it did not previously know. Otherwise the employee is not

"blowing the whistle." That Riverview was aware of the staffing issues is made clear by

the fact that it was subject to a consent decree regarding staffing.

In Harrison v. Granite Bay Care, Inc., 811 F.3d 36, 48 (1st Cir. 2016), the First Circuit

summarized the key facts in Winslow v. Aroostook County, 736 F.3d 23 (1st Cir. 2013) to

10
provide guidance to litigants in 'WPA cases. In Winslow, the First Circuit determined that

the government itself, not the plaintiff, had uncovered potential violations of federal

policies and brought that to the attention of both the alleged whistleblower and her

supervisor. Harrison, 811 F.3d at 48. Based on that notification and under her supervisor's

direction, the plaintiff sent out an email notifying the appropriate parties of the potential

violation. Id. In addressing whether the plaintiff engaged in protected activity the First

Circuit focused on the plaintiff's lack of intent to "expose an illegality" and instead

focused on the fact that she was following her supervisor's orders. Id.

The plaintiff alleged that a second email, sent a few weeks after the first, and

expressing her thoughts and concerns on the potential violation, was protected activity.

Id. The First Circuit rejected this claim. Id. It held that this was not protected activity

because "[b]y the time she sent the second email, the problem had been discussed in a

public forum and the minutes of the meeting had been posted online for all the world to

see." Id. Also important to the court was that her employer was not trying to "bury the

problem of the violation/' but instead to "acknowledge and deal with it." Id. (quoting

Winslow v. Aroostook County, 736 F.3d 23, 32 (1st Cir. 2013)). Because her second email was

addressed to people "who were already (or who easily could have become) aware of the

problem [it] was clearly not intended to expose a potential illegality. Rather, [her] intent

was to make sure her voice was heard and her opinion considered." Harrison, 811 F.3d at

48.

In the case at bar there is no dispute that Pushard "argued for the hiring of more

mental health workers rather than acuity specialists," or that he was "actively involved

in discussions with Harper regarding acuity specialist hiring." The same goes for his

opinion that nurse educators should have been utilized on the floor with the patients and

not in a classroom setting. Pushard does not show, however, that he was blowing the

11
whistle on, bringing to light, or exposing an unsafe condition or practice, or a violation

of law. Pushard was merely voicing his opiruons and had a policy disagreement with his

supervisor.

This case is similar to Winslow v. Aroostook County, except that Riverview's staffing

problems was more widely known and publicized than the violation of law that the

plaintiff in ll\linslow attempted to report and claimed was protected activity. The staffing

problems at Riverview could not have been subjected to a more public forum as the issue

was addressed by the employees of Riverview itself, the Legislature, and the media. The

courts even addressed the situation through a consent decree, supervised or monitored

by a Court Master. Moreover, to the extent that Pushard alleges he was bringing to light

a violation of law because it was unclear whether acuity specialists could be hired in place

of mental health workers, the record reflects that Riverview was actively seeking

guidance from the court to be sure that it complied with the consent decree on that very

issue. 7 In short, Pushard blew no whistle nor shed light on any unsafe practice or violation

of law.

To allow Pushard's conduct to amount to "protected activity" under the WPA,

would invite litigation when employees have a differing opinion on a workplace problem

and would undermine employers that are actively seeking a solution to that problem.

Riverview and its employees, the Legislature, the courts, and the public were aware of

the problem. Riverview was actively working under the consent decree to remedy it.

7 Although not listed in either parties' Statement of Material Facts, in his deposition Harper
indicated that acuity specialists were not addressed in the consent decree. Harper Dep. 22:20.
During his time at Riverview, however, he was in the process of negotiating acuity specialists
into the consent decree with the special master charged with enforcing the decree. Harper Dep.
23:20-23. This supports the view that Riverview was attempting to solve the staffing problem, not
to hide it, but disagreed with the method Pushard believed was best.

12
Pushard, however, believed that his solution would be better. This is a policy

disagreement, not a report of an unsafe condition or a violation of law. Pushard did not

report a health or safety condition or a violation of law, but instead voiced his opinion on

how to address a problem that was well known and thoroughly discussed by Riverview.

Therefore, his disagreement with Harper on whether to hire acuity specialists or mental

health workers and how nurse educators should be utilized does not amount to protected

activity under the WPA. Since Pushard has not met his burden to show a prima facie case

of protected activity, this court need not address whether there was a causal connection

between Pushard's complaints and his termination.

C. Were Pushard's Objections to Harper's Allegedly Retaliatory Treatment
of the ADON Protected Activity Under the WPA?

Riverview argues that although Pushard objected to what he perceived as

Harper's retaliation against the ADON by "(1) treating her in a disrespectful ma.IU1er and

(2) taking away her dedicated office space," that even if Pushard told Harper that those

actions were wrong, he did not say or subjectively believe that they were illegal, and it

would not have been reasonable for him to hold a good faith belief that those actions were

illegal. Def.'s Mot. Summ. J. 13-14. In response, Pushard maintains that under the WPA

he only had to report the condition, but not necessarily report that it was illegal. Pf's

Opp'n Summ. J. 12. He further argues that "[t]he only question is whether the employee,

himself, reasonably thought that the practice was illegal" and that Pushard's use of the

words "retaliatory" clearly indicates that he thought it was illegal.
11
A complaint is supported by reasonable cause when the employee has a

subjective and objectively reasonable belief that a dangerous condition or practice exists."

Cormier v. Genesis Healthcare LLC, 2015 ME 161, <JI 11, 129 A.3d 944 (emphasis added).

Caselaw is clear that the employee's subjective belief that a violation is occurring must

13
also be objectively reasonable. There is no dispute that both Pushard and the ADON

discussed with, and complained to, Harper about the understaffing issues at Riverview

and specifically his preference for acuity specialists rather than mental health workers.

There is also no dispute that Pushard subjectively believed Harper "retaliated" against

the ADON by treating her disrespectfully and depriving her of her own office. As

discussed above in Section B, Pushard's complaints to Harper were not protected activity

as he was not "blowing the whistle" because he did not shed light on or expose any unsafe

condition. The ADON made the same complaints as Pushard.

Despite what Pushard subjectively h,elieved, he could not have had an objectively

reasonable belief that Harper was doing something illegal, namely retaliating against the

ADON by acting cool towards her and reassigning her office space because the activity

she engaged in was not protected activity. Just as Pushard was not bringing anything to

light, neither was the ADON. This is reinforced by just how well-known the staffing

problems at Riverview were. Because of that, it was not objectively reasonable to believe

that Harper's actions towards the ADON were illegal, or "retaliatory." Since Pushard did

not have an objectively reasonable belief that Harper acted illegally towards. the ADON,

his objection towards Harper's actions cannot amount to protected activity. Pushard has

not met his burden to show a prima fade case of protected activity and, accordingly, this

court need not address if there was a causal connection between his objections to Harper's

treatment of the ADON and his termination.

D. Was Pushard Telling Harper that a Riverview Employee Might Have
Transmitted Internal Hospital Information to a Former Employee, 'When
He Didn't Know if it Contained Confidential Information; Protected
Activity Under the WPA?

To survive summary judgment, Pushard must show that he reasonably believed

that an illegality occurred. See Galouch v. Dep't of Prof'l & Fin. Regulation, 2015 ME 44,

14
919114-15, 114 A.3d 988. Here, it is not disputed that Pushard reported to Harper that he

was concerned a nurse might have sent something outside of Riverview that could have

concerned a patient, and if it did, it could have been a violation of HIP AA. He did not

know what, if anything, had been sent outside of Riverview, or that patient information

had actually been released, and the knowledge that something might have been sent out

was second-hand knowledge. Based on this set of circumstances, it would be reasonable

for Pushard to have a good faith belief that an illegality, a HIPAA violation, may have

occurred. On these circumstances, however, Pushard could not have had a reasonable

belief that an illegality had actually occurred based on this roundabout information.

Therefore, Pushard' s report to Harper regarding the possible transmittal of information

that might have been confidential and therefore could have been a HIPAA violation is

not protected activity under the WP A.

Because Pushard has not met his burden to show a prima fade case of protected

activity, this court need not address whether there was a causal connection from his

report of information transmitted outside Riverview and his termination. 8 Since none of

Pushard's claims of protected activity survive summary judgment, whether Riverview is

8 Assuming arguendo that Pushard's report was protected activity, Riverview has conceded that
it terminated Pushard's employment effective October 9, 2015, and thatterminationis an adverse
employment action under the WPA. Def.'s Mot. Swnm. J. 10 n.2. Pushard still has not met his
burden that there was a causal connection between the report of a potential HIPAA violation and
his termination. Pushard lacks temporal proximity regarding this complaint. Pushard made this
report in early 2015, many months before his termination. After this report, Harper and Pushard
never spoke about the transmission of information ag~in. Haiper spoke to the nurse, got a copy
of what she sent out, and gave it to Risk Management to review. Harper presumably followed
protocol in passing along the potential violation to Risk Management and nothing further came
of the incident. Nothing in the record shows that Pushard' s report to Harper was part of his
investigation. No record evidence reflects that Harper reacted negatively to this report in any
way. Further, nothing in the record reflects that Hamilton, who ultimately terminated Pushard,
was aware that this report had even been made. For these reasons, even viewing the evidence in
the light most favorable to Pushard, no causal connection can be established from this early 2015
report of a potential HIP AA violation and his October 9, 2015, termination.

15
entitled to surrunary judgment on its affirmative defense that Pushard failed to mitigate

his damages need not be addressed.

CONCLUSION

The entry is:

The Defendant's Motion for Summary Judgment is GRANTED.

The Clerk is directed to enter this Order on the docket for this case by incorporaUJ·~,,v

reference. M.R. Civ. P. 79(a).

Dated: May 7, 2019
~~"o'\14+i+;;m:r1":. tokes
Maine Superior Court

16