High court allows whistleblower suit against Cumberland County to go to trial

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PORTLAND — The Maine Supreme Judicial Court has overturned an Androscoggin County Superior Court decision that a detective fired from the Cumberland County Sheriff’s Department did not have enough evidence to bring a whistleblower claim against Cumberland County and its two top officers before a jury.

Cumberland County Detective Gerard Brady of South Portland is now free to have his civil lawsuit heard in Superior Court. Defendants are Cumberland County, Sheriff Kevin Joyce and Chief Deputy Naldo Gagnon.

According to court records, Brady had worked as a detective at the Cumberland County Sheriff’s Office since 1994. In early 2003, he was licensed to conduct polygraph exams, which he did for the county. He also opened a private polygraph company – Forensic Polygraph Services – with the county’s permission, as long as he didn’t use his county vehicle or other county equipment for his private clients.

After being accused by the department of violating county policies, Brady was fired in May 2013. He claims the firing was retaliatory and motivated by complaints he made about an incident involving a prisoner being “choked out” by a corrections officer at the Cumberland County Jail in 2010.

An independent arbitrator later ordered the county to reinstate Brady, ruling that the county had taken excessive disciplinary action against the detective.

According to court records, after watching a video of a corrections officer using a chokehold against an inmate, Brady complained to his supervisors and was told the incident was under investigation. Brady continued to ask about the internal investigation, and why a criminal investigation had not been opened, and also openly questioned whether the county was not being vigorous because of the upcoming election for sheriff.

In 2012, after an internal investigation in Brady’s polygraph work, the detective was placed on administrative leave and the county launched a “criminal investigation into whether Brady had violated the law by using county resources to conduct his private business,” according to court records.

And, according to court records, “at the conclusion of that investigation, (the county) determined that on at least one occasion, Brady had used a county vehicle to deliver polygraph results to a (private) FPS client and that Brady administered a private polygraph examination on a day when he had called in sick.”

Joyce referred the case to the district attorney’s office, which declined to prosecute. Joyce also submitted Brady’s case “to the Maine Criminal Justice Academy for review of Brady’s law enforcement officer certification, but the academy declined to take any action,” according to court records.

Brady was demoted to the position of patrol officer for violating county policies.

Brady filed a complaint with the Maine Human Rights Commission, claiming he was disciplined for his whistleblower activities in reporting the chokehold incident.

In March 2013, Brady challenged his demotion, and although an arbitrator found cause to discipline Brady, the arbitrator ordered Brady be reinstated to his detective position with back pay.

Two months later, Brady was fired because he had been on medical leave for more than a year.

The same arbitrator reversed that decision, according to court records.

In April 2014, Brady received a right-to-sue letter from the Maine Human Rights Commission and filed a lawsuit against Cumberland County in Androscoggin County Superior Court, claiming violation of the Maine Whistleblower Protection Act, violation of the Maine Civil Rights Act, defamation and interference with his private company.

He filed a second lawsuit in Cumberland County, making many of the same claims against Joyce and Gagnon individually.

The cases were consolidated in Androscoggin County, and in October 2014, Justice Nancy Mills granted the defendants’ motion for summary judgment, dismissing the case.

In making his case before the Law Court, Brady contended that he was treated differently than other detectives in the department.

Specifically, he contended that other detectives used their county vehicles to run personal errands, including going to ball games and bars, and were never disciplined for it. And, in one instance, a lieutenant used a county vehicle to drive to Logan Airport to deliver a passport that a commander “embarking on a personal international trip had left behind at his house.”

“From this evidence,” according to the Law Court ruling, “a jury could reasonably infer that the department had at least an ad hoc standard of tolerance toward the violation of policies regarding employee leave and use of county resources, where many infractions did not lead to investigations, much less employee discipline.”

The Law Court also found that, while a jury may not find this as compelling, “Brady has produced evidence that the actions taken against him may have been unreasonably disproportionate to the violations that he committed.”

“Based on the cumulative evidence,” according to the Law Court, “Brady has generated sufficient evidence to allow a jury to determine whether the adverse employment action that the county took against Brady was substantially motivated at least in part by his protected activity,” that being the whistleblower complaint about the chokehold.

The 29-page decision concluded that Brady had provided sufficient facts to bring a claim before a jury “that his demotion was motivated at least in part by retaliation,” and that the Androscoggin County court had erred in applying a 1973 U.S. Supreme Court ruling, McDonnell Douglas Corp. v. Green, to dismiss the case in October 2014.

Brady is being represented by Portland attorney Jonathan Goodman. Cumberland County and its officers are being represented by attorney Peter Marchesi of Waterville.

In a news release issued after the court ruling, Goodman said, “We are of course pleased that Detective Brady will now be able to have his day in court, but it is especially gratifying that the Law Court’s decision will pave the way for many more whistleblower employees to get their cases into court and in front of a jury.”