Yesterday, the U.S. District Court of Maine held that Granite Bay Care, Inc., could legally retaliate against an employee who made a mandated report to the Maine Department of Health and Human Services (DHHS) that the company abused and/or neglected some of its clients.
Granite Bay, based in Portland, provides services to adult clients with cognitive and physical disabilities. Torrey Harrison worked for Granite Bay as its Training Director from March to December 2010. During Harrison’s time working for Granite Bay, she filed complaints with DHHS about Granite Bay allegedly neglecting and/or abusing its clients. For instance, she filed a complaint with DHHS because she believed Granite Bay failed to pay the electricity bill for two of the homes where its disabled clients lived resulting in the electricity being shut off. Granite Bay subsequently fired Harrison allegedly because she had filed these complaints with DHHS. Harrison sued Granite Bay under Maine’s Whistleblower Protection Act (MWPA).
Granite Bay argued that it could legally retaliate against Harrison for filing her complaints with DHHS because filing complaints with DHHS was part of her job duties. The District Court, relying on Winslow v. Aroostook County, a misguided decision of the First Circuit Court of Appeals that we’ve previously discussed, held that since “the job duties of every employee of [Granite Bay] included reporting abuse, neglect, and exploitation to her supervisors and to DHHS,” Granite Bay was free to retaliate against Harrison because she reported the company’s abuse and neglect of its clients to DHHS.
The Court indicated that it was bound by the Winslow decision but the Court failed to recognized that the Winslow case differed from this case in at least one important respect—Winslow did not involve mandated reports of neglect and abuse to DHHS. The MWPA has a special provision designed to protect mandated reporters when they report abuse, neglect, or exploitation to DHHS. That special provision states as follows:
“An employee required to report suspected abuse, neglect or exploitation under Title 22, section 3477[, which requires reporting of abuse, neglect, or exploitation of incapacitated or dependent adults to DHHS,] or 4011-A, [which is similar to section 3477 but protects children, instead of adults,] shall follow the requirements of those sections under those circumstances. No employer may discharge, threaten or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because the employee followed the requirements of those sections.” 26 M.R.S.A. § 833(3).
There was no dispute in this case that Harrison, as a mandated reporter under Maine law, had to report Granite Bay’s alleged abuse and neglect of its disabled clients to DHHS. In return for complying with her obligations as a mandated reporter, she was supposed to have protection under the MWPA from retaliation; that is what the provision of the MWPA above says. By stripping this protection away from Harrison and other mandated reporters, the Court essentially wrote the provision above out of the MWPA.
The consequences of the Court’s decision in this case could be serious. The Court noted that every employee that worked at Granite Bay was required to report neglect or abuse of the company’s clients to DHHS. This is likely true of many other health care companies as well. So, according to the Court, whenever any employee of Granite Bay or another similar health care provider reports alleged neglect or abuse to DHHS, the employer is free to fire that employee in retaliation. Due to the Court’s decision, mandated reporters now must choose between potentially losing their jobs and making a mandated report. Obviously, permitting this type of retaliation will dissuade employees from reporting abuse, neglect, and exploitation to DHHS and place these companies’ clients, like the disabled adults who Granite Bay cares for, at greater risk of being abused, neglected, or exploited.