Potanas v. Dep't of Corr.

1

2024 VT 31

P. Mark Potanas v. Department of Corrections

No. 23-AP-067

Supreme Court of Vermont

June 7, 2024

On Appeal from Superior Court, Washington Unit, Civil Division 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 General ^[1] , Montpelier, for Defendant-Appellant.

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

EATON J.

¶ 1. 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 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.

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 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." 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 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...