Of (Lab) Mice and Men

Of (Lab) Mice and Men: Caruso v. Jackson Laboratory

In August of 2014, The Maine Supreme Judicial Court, sitting at the Law Court, issued its opinion in Caruso v. Jackson Laboratory, 2014 ME 101, 98 A.3d 221.  In a unanimous opinion, the Court held that Santina Caruso was not entitled to relief on her claim that her dismissal from Jackson Laboratory was retaliatory and thus illegal under the Whistleblowers’ Protection Act (WPA) as codified in 26 M.R.S.A. § 833(1)(A) (2013).  The Court reasoned that although the trial court erred in instructing the jury that Caruso could recover only if her whistleblowing “made a substantial difference . . . .”  in the decision of whether or not to terminate her employment, she had failed to carry her burden to show either that the error resulted in prejudice or, alternatively, that the error was so egregious that “the verdict must have been based on a misconception of the law.”  Id. ¶ 14.  While the issue raised on appeal challenged whether the court erred in instructing the jury as to the relevant law, rather than whether Caruso’s employment was terminated unlawfully in contravention of the WPA, the opinion raises an interesting and important question: In order to claim protection under the WPA, must one be a benevolent whistleblower?

26 M.R.S.A. § 833(1)(A) prohibits an employer from discharging an employee because “The employee, acting in good faith, reports . . . to the employer or a public body . . . what the employee has reasonable cause to believe is a violation of a law or rule adopted under the laws of this State . . . or the United States.”  26 M.R.S.A. § 833(1)(A) (2013).  Further, “the plaintiff must show that the protected activity (whistleblowing) ‘was a substantial, even though perhaps not the only, factor motivating the employee’s dismissal.’”  Caruso v. Jackson Laboratory, 2014 ME 101, ¶ 13,  98 A.3d 221 (quoting Wells v. Franklin Broad. Corp., 403 A.2d 771, 773 (Me. 1979)).  Here, Caruso aired legitimate concerns that the mice at Jackson Laboratory were being treated inhumanely. Caruso, 2014 ME 101, ¶ 4.  However, she was not tactful in the way that she raised concerns, was very difficult to work with, was rude to her bosses, and refused to discuss these issues at meetings.  Id. ¶ 5-6.  She was terminated and she filed a complaint that her termination was “retaliatory . . . in violation of the WPA.”  Id. ¶ 7.

While the Court did state that unlawful retaliation necessitated a showing of a “causal link between the protected activity and the adverse employment action,” Id. ¶ 11 (quoting Costain v. Sunbury Primary Care, P.A., 2008 ME 142, ¶ 5, 954 A.2d 1051), and that to demonstrate that link the plaintiff must show that “the protected activity . . . ‘was a substantial, even though perhaps not the only, factor motivating the employee’s dismissal,’” Id. ¶ 13 (quoting Walsh v. Town of Millinocket, 2011 ME 99, ¶ 25, 28 A.3d 610), it remains unclear whether Caruso’s termination was motivated by her attitude or by the fact that she aired her concerns to the Office of Laboratory Animal Welfare.  Id. ¶ 4.  While the issue raised in this case was whether the court erred in its jury instruction regarding the applicable law, the concern remains that there may not be a valid check on an employer’s ability to use any number of excuses to fire an employee who has spoken out against that employer’s policy.  In lieu of a more restrictive rule limiting an employer’s power to terminate an employee who has acted as a whistleblower, 22 M.R.S.A. § 833(1)(A) may be a statute without teeth.