Costain v. Sunbury Primary Care

(Maine Supreme Judicial Court)

• Opposing Expansion of Whistleblower Protection in Maine

The case of Costain v. Sunbury Primary Care, decided by the Maine Supreme Judicial Court on September 9, raised the question whether the Maine Whistleblower Protection Act, 26 M.R.S.        § 833, extends beyond a current employment relationship to protect an individual who participated in an investigation of a business before she became its employee.  The plaintiff, who alleged that she was fired by the defendant medical group after it was discovered that she had participated in an investigation of a physician in the group years before she was hired, argued even more broadly that the Act should protect an employee from adverse employment action based on any challenge the employee has ever made to the practices of any business that has employees.  If adopted, this interpretation of the Act would have prohibited employers from considering any activity of a job applicant or employee challenging their own or any other employer’s business practices, and would have protected even the career corporate gadfly from the exercise of normal employer prerogatives under the employment-at-will doctrine.  NELF’s amicus brief in support of the defendant argued that the Act, properly construed, is limited to protecting employees who challenge the business practices of their then employer, from whom they may fear reprisal, and the Court agreed.  The Court held that the Act “unambiguously limit[s] the protection afforded . . . to (1) employees (2) who report to an employer (3) about a violation (4) committed or practiced by that employer” and that the plaintiff’s participation in the investigation at issue here did not fit these parameters because the “investigation of the doctor bore no relationship to the employment in which she was engaged at the time of the investigation.”