Pushard v. Riverview Psychiatric Ctr.

224 A.3d 1239

Roland PUSHARD III

v.RIVERVIEW PSYCHIATRIC CENTER

Docket: Ken-19-201

Supreme Judicial Court of Maine.

Argued: December 4, 2019

Decided: January 30, 2020

Arthur J. Greif, Esq. (orally), Gilbert & Greif, P.A., Bangor, for appellant Roland Pushard III

Aaron M. Frey, Attorney General, and Valerie A. Wright, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee Riverview Psychiatric Center

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.

Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and HUMPHREY, JJ.

Dissent: JABAR, J.

ALEXANDER, J.

[¶1] Roland Pushard III appeals from a summary judgment entered by the Superior Court (Kennebec County, Stokes, J. ) in favor of Riverview Psychiatric Center on Pushard's complaint alleging a violation of the Whistleblowers' Protection Act, 26 M.R.S. §§ 831 - 840 (2018). Pushard argues that there are genuine issues of material fact regarding whether he is entitled to whistleblower protection based on complaints he made, while employed at Riverview, about (1) Riverview's staffing policies; (2) his supervisor's alleged mistreatment of another employee; and (3) a potential violation of patient confidentiality pursuant to the Health Insurance Portability and Accountability Act (HIPAA), see 45 C.F.R. §§ 164.500 - .534 (2019). We affirm the judgment.¹

I. CASE HISTORY

[¶2] Viewed in the light most favorable to Pushard, as the party against whom summary judgment has been granted, the following material facts are undisputed. See Berry v. Mainestream Finance , 2019 ME 27, ¶ 6, 202 A.3d 1195.

[¶3] Pushard was the director of nursing at Riverview. His supervisor was Jay Harper, the superintendent of Riverview. As director of nursing, Pushard often disagreed with Harper's staffing decisions and policies. The parties agree that "[u]nderstaffing was a persistent, ongoing problem at Riverview for years." The issue was publicly known and had been discussed by the media and the Legislature.

[¶4] To address Riverview's staffing problems, Harper instituted several new policies, including replacing mental health workers with acuity specialists.² Pushard disagreed with this decision and told Harper that he believed the decision threatened the safety of patients and employees because acuity specialists could not perform all the tasks that mental health workers could.

[¶5] Harper also moved two full-time nurse educators to administrative roles. Although Harper allowed Pushard to hire two new employees to fill the vacant positions, Pushard eventually hired two part-time nurse educators because no one who applied for the positions was willing to work full-time. Pushard told Harper that he disagreed with Harper's decision to move the full-time nurse educators because he believed that replacing them with part-time employees would result in nurse educators spending less time assisting with patient management, which in turn would create unsafe conditions for patients and employees.

[¶6] The record demonstrates that Pushard "did not believe that he was making Harper or anyone else [at Riverview] aware of anything they were not already aware of" when he made complaints about Harper's decisions to hire acuity specialists and to move the full-time nurse educators to administrative roles.

[¶7] The assistant director of nursing lodged complaints similar to those made by Pushard. Around the time that Pushard and the assistant director made these complaints, Harper took away the assistant director's office and assigned it to another employee. Pushard also perceived that Harper had treated the assistant director in a disrespectful manner during meetings. Pushard complained to Harper, explaining that he thought Harper was retaliating against the assistant director because of her complaints about Harper's staffing decisions.

[¶8] In early 2015, Pushard reported to Harper that a Riverview employee had sent internal hospital documents to a former employee. Pushard was concerned that the documents contained patient information and that the release of the information violated HIPAA. Harper reviewed the documents that were sent to the former employee and referred the matter to Riverview's risk management office. The risk management office did not advise Harper that a HIPAA violation had occurred.

[¶9] In December 2014, a nurse under Pushard's supervision sent Pushard an email detailing her concerns about another nurse, referred to in the record as "Nurse A." By April 2015, several employees had reported that Nurse A was having difficulty performing her duties because of tiredness or impairment and that Nurse A was diverting patient medication. At least three nurses made these allegations directly to Pushard. Pushard discounted the reports because he believed they originated from an employee who did not like Nurse A. Nevertheless, Pushard instructed the assistant director to investigate. The assistant director did not find evidence that Nurse A had diverted medication. Pushard never made Harper or the Riverview human resources staff aware of the allegations against Nurse A.

[¶10] Another employee eventually reported Nurse A directly to the human resources staff. This report led to an investigation of Nurse A, who was terminated after Riverview substantiated allegations that she had been sleepy and inattentive on duty and that she had been overstaying her scheduled breaks because she would use that time to sleep in her car. Pushard was placed on administrative leave pending an investigation into whether he knew of the concerns about Nurse A and whether he acted improperly by failing to relay those concerns to Harper or to human resources.

[¶11] After completing its investigation of Pushard's conduct, Riverview's Human Resources Department concluded the following in a written report:

Although he took some action, Mr. Pushard did not report these matters to management above him, follow up on the action he had taken in January 2015, or more closely monitor the on-going situation involving Nurse A to ensure that the issues were being appropriately addressed. Mr. Pushard asserted that he knew Nurse A was sickly, for which he made adjustments to her job in January 2015 and May 2015, but did not know there were concerns she was impaired by drugs at work. However, he didn't follow up on these adjustments or any other concerns after January 2015 nor did he have other nursing managers actively monitor the situation.

[¶12] Ricker Hamilton, the deputy director of DHHS, reviewed this report and informed Pushard that he was recommending Pushard's termination. At a Loudermill hearing, Pushard's termination was upheld. See Cleveland Bd. of Education v. Loudermill , 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (holding that certain public sector employees have a due process right to a hearing before their employment is terminated).

[¶13] Pushard filed a complaint with the Maine Human Rights Commission and received notice of his right to sue. See 5 M.R.S. § 4612(6) (2018). Pushard then filed the instant action. The court granted Riverview's motion for summary judgment, and Pushard timely appealed. See M.R. App. P. 2B(c)(1).

II. LEGAL ANALYSIS

[¶14] We review de novo the grant of a motion for summary judgment. See Brady v. Cumberland County , 2015 ME 143, ¶ 10, 126 A.3d 1145. Summary judgment is proper if the moving party is entitled to judgment as a matter of law because, considering the evidence "in the light most favorable to the party against whom the summary judgment has been granted," there is no "genuine issue of material fact" for a jury to decide. Id.

[¶15] A WPA claim consists of three elements: "(1) [the employee] engaged in activity protected by the WPA; (2) [the employee] experienced an adverse employment action; and (3) a causal connection existed between the protected activity and the adverse employment action." Id. ¶ 14 ; see 26 M.R.S. § 833(1). "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." Brady , 2015 ME 143, ¶ 39, 126 A.3d 1145.

[¶16] Pushard asserts that he engaged in three protected activities that entitled him to whistleblower protection from adverse employment actions: (1) complaining about Harper's staffing decisions; (2) complaining about Harper's treatment of the assistant director; and (3) reporting a possible HIPAA violation. Only the first and third of these claims merit a full discussion.³

A. Complaints About Staffing

[¶17] As relevant to Pushard's claim, the WPA applies where

[t]he employee, acting in good faith, or a person acting on behalf of the employee, 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. § 833(1)(B). In Cormier v. Genesis Healthcare LLC , 2015 ME 161, ¶ 11, 129 A.3d 944, we explained that "[a]lthough this provision is not triggered by every complaint that relates to safety, it protects employees who, in good faith, make safety-related complaints when the employee reasonably believes that a dangerous condition or practice exists." To satisfy the reasonable cause requirement, an employee must show that he has both "a subjective and objectively reasonable belief that a dangerous condition or practice exists." Id. ; see Stewart-Dore v. Webber Hosp. Ass'n , 2011 ME 26, ¶ 11, 13 A.3d 773.

[¶18] Pushard argues that he made whistleblower protected complaints when he told Harper that replacing mental health workers with acuity specialists⁴ and replacing two full-time nurse educators with two-part time nurse educators compromised patient and employee safety.

[¶19] Pushard's staffing complaints were not whistleblower protected activity because he was not exposing a concealed or unknown safety issue. Instead, he was simply...