Michael A. Lee v. Town of Denmark , 2019 ME 54 ( 2019 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 54Docket: Oxf-18-248
Argued: February 6, 2019
Decided: April 11, 2019
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
MICHAEL A. LEE
v.
TOWN OF DENMARK
SAUFLEY, C.J.
[¶1] Michael A. Lee appeals from a summary judgment entered by the
Superior Court (Oxford County, Stokes, J.) in favor of his employer, the Town of
Denmark, on Lee’s claim that the Town violated Maine’s Whistleblowers’
Protection Act (WPA), 26 M.R.S. §§ 831-40 (2018),1 by suspending Lee after he
engaged in WPA “protected activity.” Lee argues that the court erred as a
matter of law in concluding that Lee did not engage in protected activity when
he informed the Town that it had breached his employment contract and in so
1 The court also granted summary judgment to the Town on Lee’s defamation, slander, and unpaid
wages claims, see 26 M.R.S. §§ 664, 670 (2018). Lee does not appeal these portions of the judgment,
and we do not discuss them further. See Holland v. Sebunya, 2000 ME 160, ¶ 9 n.6, 759 A.2d 205 (“The
failure to mention an issue in the brief or at argument is construed as . . . failure to preserve that
issue.”).
2
doing had violated Maine statutes and the Town’s charter. We affirm the
judgment.
[¶2] The pertinent facts in this case are not complicated and are
undisputed. We draw the facts from the parties’ statements of material facts,
all of which are supported by references to the evidentiary record, viewing
them in the light most favorable to Lee as the nonprevailing party. See Remmes
v. Mark Travel Corp., 2015 ME 63, ¶ 3, 116 A.3d 466.
[¶3] From 2003 to 2014, Lee worked under a written employment
contract with the Town to serve as a part-time Code Enforcement Officer (CEO).
The contract provided that Lee was to “perform all duties as specified by the
Law and ordinance and to perform such other proper duties . . . as assigned by
the Board of Selectmen.” (Emphasis added.)
[¶4] In September 2014, the Town’s newly hired Town Manager directed
Lee to report directly to him as the Town Manager, rather than to the Board.2
Lee complained to the Town Manager and the Board that the directive was
“illegal and a violation” of Lee’s employment contract with the Town because
he interpreted the contract to require that he report to the Board, not the Town
2 The dispute appears to have been precipitated by the new Town Manager’s request that, as CEO,
Lee should arrange to be available to the public during certain predictable office hours during each
month. Lee objected to that requirement.
3
Manager. Lee also asserted that the CEO position was controlled by the laws of
the State of Maine. See 30-A M.R.S. §§ 2601, 2601-A, 4451 (2018).
[¶5] In April 2015, the Board of Selectmen approved a new job
description for the CEO position, which was offered to Lee. Lee objected to the
new job description, stating that it breached his contract and “to change the
CEO [j]ob description, [the Town] would need to form a Charter Commission
and then have a public meeting to call a special election.”
[¶6] In May 2015, the Town Manager placed Lee on paid administrative
leave, later changing it to leave without pay and recommending Lee’s
termination, pending an investigation into whether Lee had falsified work
hours. Shortly thereafter, the Town Manager resigned, and the Denmark Board
of Selectmen voted unanimously to rescind Lee’s suspension upon finding that
he had not falsified his hours.
[¶7] Lee filed a complaint with the Maine Human Rights Commission
and, after receiving a right-to-sue letter, see 5 M.R.S. § 4612(6) (2018), he filed
a complaint against the Town in the Superior Court (Oxford County) for a
violation of the Maine WPA, 26 M.R.S. §§ 831-40. The Town moved for
summary judgment pursuant to M.R. Civ. P. 56, and the court granted the
Town’s motion, concluding that Lee had not engaged in WPA-protected activity,
4
a necessary element to succeed in a WPA claim.3 See 26 M.R.S. § 833(1)(A)
(2018). Lee timely filed a notice of appeal. M.R. App. P. 2B(c)(1).
[¶8] Because the material facts are not in dispute, we review the court’s
interpretation of the WPA de novo. See Remmes, 2015 ME 63, ¶ 19, 116 A.3d
466. To satisfy the first element of a WPA claim, the record must establish that
Lee reported to his employer what he had reasonable cause to believe was his
employer’s unlawful activity.4 See Galouch v. Dep’t of Prof’l & Fin. Regulation,
2015 ME 44, ¶ 12, 114 A.3d 988. “The reasonable cause requirement is met
only when the employee presents evidence showing she had a subjective belief”
that the employer engaged in illegal activity and the “belief was objectively
reasonable in that a reasonable person might have believed” illegal activity
occurred. Stewart-Dore v. Webber Hosp. Ass’n, 2011 ME 26, ¶ 11, 13 A.3d 773(quotation marks omitted).
3 To establish a prima facie claim of retaliation under section 833 of the WPA, an employee must
“show that (1) he engaged in activity protected by the WPA; (2) he experienced an adverse
employment action; and (3) a causal connection existed between the protected activity and the
adverse employment action.” Galouch v. Dep’t of Prof’l & Fin. Regulation, 2015 ME 44, ¶ 12, 114 A.3d
988 (quotation marks omitted).
4 Here, the court reached only the first element in concluding that Lee did not establish a prima
facie case of retaliation, and because we agree with the court’s conclusion on that element, we also
do not reach the second or third element.
5
[¶9] Notwithstanding the absence of explicit language in the contract
regarding an alleged “reporting” requirement,5 Lee argues that the Town
breached his employment contract by requiring him to report to the Town
Manager as opposed to the Board and by suggesting that a new employment
contract would be imposed to clarify his reporting responsibilities, and that “he
reasonably believed” these alleged breaches were illegal. He argues, in essence,
that three sections of statute—30-A M.R.S. §§ 2601, 2601-A, 4451—and the
CEO job description, formed by the Town’s charter, neither of which identifies
the person or entity to whom the CEO must report, demonstrate the presence
of an illegality.
[¶10] His argument fails. As we have previously held, to satisfy the
reasonable cause requirement, the employee must report something other than
an ordinary breach of an employment contract to bring himself within the
provisions of the Whistleblower Protection Act. See Galouch, 2015 ME 44,
¶¶ 15-16, 114 A.3d 988; Bard v. Bath Iron Works Corp., 590 A.2d 152, 153-54
5
Pursuant to the contract, the Board has the authority to assign such other duties to Lee.
(Emphasis added.) It does not necessarily follow that the contract requires Lee to report to the Board.
6
(Me. 1991). A dispute over the interpretation of an employment contract,
without more, as is the case here, does not constitute a report of illegal activity.6
[¶11] Moreover, even if Lee subjectively believed that the Town’s action
violated Maine law or the Town’s charter, his “subjective belief alone is
insufficient to meet the WPA’s ‘reasonable cause’ requirement” because neither
the law nor the charter, “by any reasonable reading,” makes the Town’s actions
unlawful. See Galouch, 2015 ME 44, ¶¶ 15, 15 n.4, 114 A.3d 988 (quoting
26 M.R.S. § 833(1)(A)). We affirm the court’s judgment.
The entry is:
Judgment affirmed.
Guy D. Loranger, Esq. (orally), and Danielle Quinlan, Esq., Old Orchard Beach,
for appellant Michael A. Lee
Tyler J. Smith, Esq. (orally), and Timothy J. O’Brien, Esq., Libby O’Brien Kingsley
& Champion, LLC, Kennebunk, for appellee Town of Denmark
Oxford County Superior Court docket number CV-2016-65
FOR CLERK REFERENCE ONLY
6 This does not mean that a breach of an employment contract cannot also constitute “illegal
activity” for purposes of a WPA claim. For example, the employer’s breach of an employment contract
that results in requiring the employee to engage in a crime could provide a basis for a Whistleblower
action. This, however, is not one of those circumstances.