Last week the Maine Supreme Judicial Court issued a decision in Brady v. Cumberland County, 2015 ME 143, in which it declared that it was moving away from a long-held test for summary judgment motions, and thereby easing the burden on employees to proceed to a full trial in discrimination cases.
The case involved a detective with the Cumberland County Sheriff’s Department who alleged that he was demoted for blowing the whistle on a video that was shown to him involving a corrections officer placing an inmate in a chokehold. He argued that his discrimination was unlawful discriminatory retaliation under the Maine Whistleblower’s Protection Act. The detective worked in the Criminal Investigative Division and regularly conducted polygraph examinations. The employer argued that the demotion was a result of discipline based on the detective’s use of county equipment and vehicles and sick time from his position with the County to conduct business for his own private polygraph firm.
Before the trial, the employer moved for summary judgment arguing that the detective had failed to demonstrate sufficient evidence of retaliation, among other claims, to proceed to trial. The Court granted the summary judgment, and the detective appealed the decision to the Supreme Judicial Court.
Typically in employment discrimination cases, the Maine Supreme Judicial Court has applied the test articulated by the U.S. Supreme Court in a case called McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The test requires the court to consider the discrimination claim in three steps, with the burden shifting between the employee and employer as follows:
- First, the employee must provide “prima facie” evidence of retaliation;
- Second, the burden shifts to the employer to show a legitimate nondiscriminatory reason for the adverse employment action; and
- Third, the burden then shifts back to the employee to show that the employer’s “legitimate” reasons are pretextual.
In Brady, the Supreme Judicial Court announced that it would no longer use the three-part analysis of McDonnell Douglas in whistleblower cases. The Court reasoned that this was because a whistleblower claim under Maine law already requires an employee to demonstrate that the employer’s adverse employment action was causally related to the employee’s protected (whistleblowing) activity. As the Court and other commentators have noted, summary judgment in discrimination cases nearly always turns on the third prong of the McDonnell Douglas analysis—whether the employer’s reasons for the adverse employment action were “pretextual.”
What the Maine Supreme Judicial Court has said in Brady is that employees no longer need to provide evidence of a “pretext” in order to prevail in summary judgment motions. Although the court may still consider pretext when determining causation, it is no longer a separate element, and causation can be determined by a number of factors.
What does this decision mean for employers? It will now be easier for employees to defeat summary judgment motions filed by an employer defendant before trial. The Brady opinion explains at length that it is a unique feature of whistleblower cases that makes the McDonnell Douglas test redundant and unnecessary. It remains to be seen whether the Court will do the same with other, non-whistleblower discrimination cases.
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