JOHN H. RICH III, United States Magistrate Judge.
Defendant Kris-Way Truck Leasing, Inc. ("Kris-Way") moves for summary judgment as to all of plaintiff Kevin Capalbo's claims of whistleblower retaliation in violation of the Maine Whistleblowers' Protection Act ("MWPA"), 26 M.R.S.A. §§ 831-40, and the Surface Transportation Assistance Act ("STAA"), 49 U.S.C. § 31105. See Defendant's Motion for Summary Judgment ("Motion") (Docket No. 21) at 1-2; Complaint (Docket No. 1). For the reasons that follow, I grant the Motion in part and deny it in part.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Santoni v. Potter, 369 F.3d 594, 598 (1st Cir.2004). "A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the nonmoving party." Rodríguez-Rivera v. Federico Trilla Reg'l Hosp. of Carolina, 532 F.3d 28, 30 (1st Cir.2008) (quoting Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir.2008)). "A fact is material if it has the potential of determining the outcome of the litigation." Id. (quoting Maymi v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir.2008)).
The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether this burden is met, the court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Santoni, 369 F.3d at 598. Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must "produce specific facts, in suitable evidentiary form, to establish the
The evidence that the court may consider in deciding whether genuine issues of material fact exist for purposes of summary judgment is circumscribed by the local rules of this district. See Loc. R. 56. The moving party must first file a statement of material facts that it claims are not in dispute. See Loc. R. 56(b). Each fact must be set forth in a numbered paragraph and supported by a specific record citation. See id. The nonmoving party must then submit a responsive "separate, short, and concise" statement of material facts in which it must "admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts[.]" Loc. R. 56(c). The nonmovant likewise must support each denial or qualification with an appropriate record citation. See id. The nonmoving party may also submit its own additional statement of material facts that it contends are not in dispute, each supported by a specific record citation. See id. The movant then must respond to the nonmoving party's statement of additional facts, if any, by way of a reply statement of material facts in which it must "admit, deny or qualify such additional facts by reference to the numbered paragraphs" of the nonmovant's statement. See Loc. R. 56(d). Again, each denial or qualification must be supported by an appropriate record citation. See id.
Failure to comply with Local Rule 56 can result in serious consequences. "Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted." Loc. R. 56(f). In addition, "[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment" and has "no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of fact." Id.; see also, e.g., Sánchez-Figueroa v. Banco Popular de P.R., 527 F.3d 209, 213-14 (1st Cir.2008); Fed. R.Civ.P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion[.]").
As a threshold matter, I note that, in their statements of material facts, the parties dispute certain points of law, including whether, pursuant to applicable United States Department of Transportation ("DOT") regulations, Capalbo was required to maintain daily driver logbooks while employed as a so-called "yard jockey" by Kris-Way. Compare, e.g., Defendant's Statement of Material Facts ("Defendant's SMF") (Docket No. 22) ¶¶ 3, 26 with Plaintiff's Responses to [ ] Defendant's Statement of Material Facts ("Plaintiff's Opposing SMF") ¶¶ 3, 26; compare also, e.g., Plaintiff's Statement of Facts ("Plaintiff's Additional SMF") (Docket No. 35) ¶¶ 36, 81-82 with Defendant's Response to Plaintiff's Statement of Facts ("Defendant's Reply SMF") (Docket No. 39) ¶¶ 36, 81-82. The parties' conflicting interpretations of DOT regulations or other legal requirements are not "facts." Hence, I omit them from my factual recitation. By contrast, the following are "facts": (i) statements
With that clarification, the parties' statements of material facts, credited to the extent that they are admissible over any objection and are either admitted or supported by record citations in accordance with Local Rule 56, with disputes resolved in favor of Capalbo as nonmovant, reveal the following relevant facts.
Kris-Way is a Maine-based company providing truck rentals and leasing, dedicated contract carriage, and contract maintenance services. Defendant's SMF ¶ 1; Affidavit of James Ryan ("Ryan Aff.") (Docket No. 24) ¶ 1. It has its own trucks and drivers, leases trucks to other companies and individuals, and repairs trucks and trailers. Id. Its largest facility is in South Portland, where it employs approximately 136 drivers, mechanics, and administrative personnel. Id. It has a total of 214 employees and has been in business since 1978. Id.
Capalbo was employed by Kris-Way as a commercial truck driver from July 2006 through August 20, 2008. Defendant's SMF ¶ 4; Plaintiff's Opposing SMF ¶ 4. He was hired to do two jobs: yard work and over-the-road work. Plaintiff's Additional SMF ¶ 3; Defendant's Reply SMF ¶ 3.
During his employment with Kris-Way, Capalbo worked primarily as a "yard jockey" at the Country Kitchen warehouse terminals in Lewiston, Maine. Defendant's SMF ¶ 24; Plaintiff's Opposing SMF ¶ 24. Yard work involved moving trailers between and around the bakery yards. Plaintiff's Additional SMF ¶ 4; Defendant's Reply SMF ¶ 4. The two yards are about a half mile apart. Id.
Country Kitchen determines the yard jockey's starting and ending times on any given day. Defendant's SMF ¶ 27; Plaintiff's Opposing SMF ¶ 27. When working as a yard jockey, Capalbo was Kris-Way's only employee assigned full time to Country Kitchen's terminals. Defendant's SMF ¶ 28; First Farrin Aff. ¶ 3.
The DOT regulates truck drivers involved in interstate commerce, including regulating how many hours a truck driver may work and how hours are logged. Plaintiff's Additional SMF ¶ 74; Defendant's Reply SMF ¶ 74. Kris-Way has written policies that require all of its drivers to maintain driver's logs mandated by the DOT. Defendant's SMF ¶ 2; First Farrin Aff. ¶ 6.
Kris-Way provides all of its drivers with logbooks in which to record one month of work. Defendant's SMF ¶ 3; First Farrin Aff. ¶ 9.
Capalbo had training in, and was familiar with, the DOT regulations governing daily and weekly hours that a driver may spend working and driving. Defendant's SMF ¶ 5; Plaintiff's Opposing SMF ¶ 5. Capalbo was familiar with the DOT regulations requiring the maintenance of daily logs recording all of the driver's activities, whether driving, working but not driving, inspecting the vehicle, taking breaks, or being off duty. Id. ¶ 6.
Capalbo understood that it was a federal crime to violate the DOT regulations concerning maintaining accurate driving logs and not exceeding allowed work hours and to falsify those logs. Defendant's SMF ¶ 9; Plaintiff's Opposing SMF ¶ 9.
Kris-Way provided Capalbo with the Kris-Way Driver's Handbook, which described the number of hours a driver could work and could drive during a day and a week and required that the driver know and comply with the DOT regulations governing such restrictions. Defendant's SMF ¶ 15; First Farrin Aff. ¶ 6; Capalbo Dep. at 38.
In January 2008, Capalbo filed a complaint with the Maine Department of Labor ("MDOL") concerning inadequate pay for overtime. Plaintiff's Additional SMF ¶ 13; Defendant's Reply SMF ¶ 13. Capalbo believed that he deserved to be paid for hours worked in excess of 40 per week because he drove locally. Id. ¶ 14.
Kris-Way was aware that Capalbo had filed a complaint with the MDOL. Defendant's SMF ¶ 32; Plaintiff's Opposing SMF ¶ 32. The MDOL investigated Kris-Way concerning Capalbo's wage complaint, concluded that he was being properly paid, and informed both Kris-Way and Capalbo of its conclusion. Defendant's SMF ¶ 33; First Farrin Aff. ¶ 18. Kris-Way had reviewed the yard jockey position in 2006 and had found it to be in compliance with MDOL regulations and exempt from overtime. Id.
From July 2006 to January 2008, Capalbo never turned in a log. Plaintiff's Additional SMF ¶ 2; Defendant's Reply SMF ¶ 2.
Sidney Lord also worked as a yard jockey for Kris-Way. Id. ¶ 19.
Capalbo injured himself and damaged a truck in February 2008. Defendant's SMF ¶ 66; Capalbo Dep. at 31-34.
Heath Edwards, another Kris-Way driver, filled in as a yard jockey in February 2008. Plaintiff's Additional SMF ¶ 35; Defendant's Reply SMF ¶ 35. Although his timecard reflects that, on February 10, 2008, he worked 13 hours as a yard jockey, he did not log any hours worked for that day. Id.
Capalbo was the only driver employed by Kris-Way who, during the period that he worked for Kris-Way, did not regularly turn in required DOT driver's logs. Defendant's SMF ¶ 20; First Farrin Aff. ¶ 25.
Capalbo worked a significant number of hours as a yard jockey, often beginning his day at 4 a.m. and not leaving until 6 p.m., working up to and in excess of 14 hours per day. Plaintiff's Additional SMF ¶ 76; Defendant's Reply SMF ¶ 76.
At no time did Capalbo refuse or fail to complete his yard jockey work at Country Kitchen, regardless of the hours he was working. Id. ¶ 36. There were many times when Capalbo exceeded the number of hours that he was allowed to work in a day. Plaintiff's Additional SMF ¶ 5; Defendant's Reply SMF ¶ 5.
When Capalbo was approaching the limit in hours he was allowed to work in a day he would call Clayton Farrin or Fred Wheeler, who were both dispatching. Plaintiff's Additional SMF ¶ 6; Capalbo Dep. at 52.
Lord would also notify Farrin when he was approaching the limit on his hours, and Farrin would tell him to do his job. Plaintiff's Additional SMF ¶ 24; Lord Dep. at 75.
At no time did Capalbo complain to any entity, such as the MDOL or the DOT, that he was required to work in excess of the federally allowed work time. Defendant's SMF ¶ 37; Plaintiff's Opposing SMF ¶ 37. There is no record of Capalbo advising Kris-Way that he was approaching or about to exceed the federally permitted work hours or that he ever raised any complaint of any kind with anyone about working in excess of the federally permitted work hours. Defendant's SMF ¶ 38; First Farrin Aff. ¶ 8.
Capalbo's time records show that virtually all of the days on which he claimed that he worked in excess of the 14 hours allowed by the DOT occurred in the middle of 2007 and, on average, he worked about one excess hour on those days. Defendant's SMF ¶ 63; First Farrin Aff. ¶ 37.
Farrin claims that, throughout Capalbo's employment, Capalbo had trouble observing DOT hour limitations. Plaintiff's Additional SMF ¶ 45; Defendant's Reply SMF ¶ 45. However, Farrin never disciplined Capalbo for not observing DOT hour limitations. Id.
In May 2008, the DOT notified Kris-Way that it would conduct a compliance review of Kris-Way's South Portland truck operations based upon a computer-generated accident frequency report. Defendant's SMF ¶ 39; First Farrin Aff. ¶ 25. Kris-Way was surprised, as it has a very good safety record. Id. During the audit, both Kris-Way and the DOT determined that most of the recorded accidents giving rise to the audit were not those of Kris-Way's drivers, but of drivers of trucks leased from Kris-Way, which were recorded under Kris-Way's DOT number because Kris-Way owned the trucks. Id.
In preparing for the DOT's compliance review, Kris-Way reviewed the status of its South Portland-based drivers' logs. Defendant's SMF ¶ 40; First Farrin Aff. ¶ 25. Farrin performed the review because the dispatcher, whose job it was to obtain, enter, and monitor logs on a weekly
The DOT conducted its audit of Kris-Way's South Portland office and gave Kris-Way a satisfactory rating based on the audit, indicating that Kris-Way has adequate safety management controls as required by federal law. Defendant's SMF ¶ 41; Plaintiff's Opposing SMF ¶ 41.
In August 2008, the DOT notified Country Kitchen that it would conduct a compliance review of Country Kitchen's operations on September 3, 2008, at its Auburn and Lewiston facilities. Id. ¶ 42. As a result, Country Kitchen notified Kris-Way that it needed to have available Kris-Way's records for its drivers who worked for Country Kitchen for the prior six months. Id.
Farrin admits that he did not provide the DOT with the logs of all of Kris-Way's drivers. Plaintiff's Additional SMF ¶ 55; Defendant's Reply SMF ¶ 55. Farrin, however, claims in his affidavit that at the time he fired Capalbo, he was already in the process of making all of Kris-Way's records available to the DOT. Id. ¶ 56. Farrin knew that one of the purposes of the DOT audit was to make sure that all of the logs were accurate. Id. ¶ 57. He did not turn in any records that were not requested by the DOT, regardless of whether they were accurate or inaccurate. Id.
In early August 2008, Capalbo turned in his log for the first part of August. Plaintiff's Additional SMF ¶ 50; Capalbo Dep. at 120. He turned the logs into the office box. Id. He does not know what Kris-Way did with his log entries after he turned them in. Id.
Farrin first asked Capalbo to recreate six months of logs. Plaintiff's Additional SMF ¶ 40; Capalbo Dep. at 108. Farrin then requested that Capalbo recreate only the logs for the previous weeks in August 2008. Plaintiff's Additional SMF ¶ 41; Capalbo Dep. at 108-09.
On August 19, 2008, Farrin reported to his supervisor, Ryan, Kris-Way's Vice-President of Operations, that Capalbo was the only Auburn driver who had not been regularly filling out and turning in his daily logs. Defendant's SMF ¶ 47; First Farrin Aff. ¶¶ 27-28; Ryan Aff. ¶¶ 10-11. Farrin told Ryan that Capalbo had said that he had turned in his daily logs for the first two weeks of August but that Farrin had looked and had not found any logs from Capalbo. Id. Farrin also reported to Ryan that, because he had had to speak to Capalbo in the past about not turning in his daily logs, he doubted that Capalbo had turned in the August daily logs. Id.
At the meeting, Ryan asked Capalbo if he had his logs for the first two weeks of August. Id. ¶ 51. Capalbo replied that he did, that they were in his truck, and that he would get them. Id. Capalbo went to his truck, returned, and delivered to Ryan a logbook that he represented contained his logs for the first 20 days of August 2008. Id. ¶ 52. The logbook contained both the first and second pages for each day, meaning that none of the logs had been turned into Kris-Way as Capalbo had stated. Id.
Ryan did a quick comparison of the logs Capalbo had given him against the timecards Capalbo had turned in for his work on the same days. Id. ¶ 53. The logs for the first two weeks of August did not match Capalbo's time records for those weeks. Id. ¶ 54. Capalbo had indicated in his daily logs that he had been doing work and working during hours and at locations that differed from those he had indicated on his timecards for the same days. Id. Ryan asked Capalbo why there was a difference, and Capalbo stated that he had recreated the logs that he had given to Ryan. Id. ¶ 55.
Ryan advised Capalbo that falsifying his DOT-required logs was a serious violation of federal law and a very serious matter both for him and Kris-Way if he should have an accident and be found to have improperly documented logs. Defendant's SMF ¶ 56; First Farrin Aff. ¶ 33; Ryan Aff. ¶ 19. Capalbo admitted that he had created the new logs. Defendant's SMF ¶ 57; First Farrin Aff. ¶ 32; Ryan Aff. ¶ 18. Ryan terminated Capalbo's employment for turning in false logs and representing them as his actual logs. Defendant's SMF ¶ 58; Ryan Aff. ¶ 20; Capalbo Dep. at 16, 110.
In January 2008, Farrin began keeping a secret file on Capalbo. Plaintiff's Additional SMF ¶ 16; Defendant's Reply SMF ¶ 16.
Although Farrin claims that in 2008 he had many problems with Capalbo regarding logs and had spoken to him many
Capalbo is the only yard jockey whom Kris-Way has fired for falsifying logs. Plaintiff's Additional SMF ¶ 75; Defendant's Reply SMF ¶ 75. Yet, there are also discrepancies between the logbooks and timecards of Lord. Plaintiff's Additional SMF ¶ 78; Exh. 7 (Docket No. 34-6) to Loranger Aff. On January 6, 2008, Lord logged that he was off duty. Id. Yet, his timecard shows that he was working as a yard jockey for Country Kitchen. Id. The same inaccuracy occurred on February 17, February 18, February 24, February 25, March 19, April 9, April 16, April 23, May 7, May 8, May 19, May 26, July 20, and July 21. Id. In fact, from January to August 2008, Lord did not once log his hours worked as a yard jockey. Id.
Prior to 2001, James Ryan was the Transportation Manager and was responsible for Kris-Way's drivers. Defendant's SMF ¶ 10; Ryan Aff. ¶ 1. In that role, Ryan had previously terminated four other drivers for falsifying logbooks. Defendant's SMF ¶ 10; Ryan Aff. ¶ 6.
Capalbo filed a complaint with the Maine Human Rights Commission ("MHRC") that he had been illegally terminated from Kris-Way. Plaintiff's Additional SMF ¶ 37; Defendant's Reply SMF ¶ 37. He believed that he was wrongly fired because Farrin had asked him to recreate his logs and then fired him for recreating them. Plaintiff's Additional SMF ¶ 38; Capalbo Dep. at 103.
Capalbo did not know why or when the DOT's audit of Kris-Way's records was to be conducted. Defendant's SMF ¶ 60; Capalbo Dep. at 111, 12 1.
Lord had heard rumors that Capalbo had gone to the DOT to complain about Kris-Way's violations of DOT rules. Plaintiff's Additional SMF ¶ 59; Defendant's Reply SMF 59.
At the meeting in the pickup truck, Farrin handed Lord a piece of paper with dates highlighted. Plaintiff's Additional SMF ¶ 63; Lord Dep. at 118-19. Farrin told Lord that he needed to recreate logs for the highlighted dates when he was working in the yard because the DOT was coming down on Kris-Way. Id.
Capalbo claims that he was fired for engaging in protected activity, in violation of the MWPA (Count One) and the STAA
He alleges that Kris-Way terminated his employment "because he had complained about [Kris-Way's] illegal activity; because he had filed a complaint with [the] MDOL; because [Kris-Way] believed that he had reported it to [the] DOT; because [Kris-Way] believed that he was about to cooperate with the DOT in its upcoming audit; and/or because [Kris-Way] believed that he was about to file a complaint with the DOT." Id. ¶ 12.
Kris-Way seeks summary judgment as to each of four "theories for recovery": that Capalbo was fired because (i) Kris-Way believed that he was "about to report" violations to the DOT and was "about to cooperate" with a pending DOT audit (the "DOT theory of recovery"), (ii) he had filed the MDOL complaint (the "MDOL theory of recovery"), (iii) he complained to his supervisor that he was working hours in excess of DOT regulations (the "excessive hours theory of recovery"), and (iv) he refused to recreate six months of logs and complained to his supervisors that fraudulently completing logbooks was illegal (the "logbook theory of recovery"). See Motion at 1-2; Defendant's Reply to Plaintiff's Opposition to Motion for Summary Judgment ("Reply") (Docket No. 40) at 2.
The MWPA provides, in relevant part:
26 M.R.S.A. § 833.
"The MWPA prohibits an employer from taking adverse action against an employee who reports a suspected violation of a law or rule." LePage v. Bath Iron Works Corp., 2006 ME 130, ¶ 19, 909 A.2d 629, 635. "Although the MWPA provides no private right of action, plaintiffs may file a civil action under the MHRA [Maine Human Rights Act]." Osher v. University of Me. Sys., 703 F.Supp.2d 51, 64 n. 13 (D.Me.2010).
"To establish a prima facie case of unlawful retaliation under state and federal law, [a plaintiff] must show that (1) she engaged in an activity protected by the applicable statute; (2) she suffered an adverse employment action; and, (3) the adverse employment action was causally connected
"Following the shifting burdens analysis described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), once the plaintiff has shown a protected activity followed in close proximity by an adverse employment action, this gives rise to an inference that a causal connection is established; the employer, then, will be required to produce some probative evidence to demonstrate a nondiscriminatory reason for the adverse employment action." LePage, 2006 ME 130, ¶ 19, 909 A.2d at 636 (citations and internal punctuation omitted). "The final burden to prove the existence of the causal nexus remains with the plaintiff." Id. "[U]nder First Circuit authority, the Court may not consider the employer's alleged nondiscriminatory reason for taking an adverse employment action when analyzing the prima facie case." Daigle, 794 F.Supp.2d at 237 (citations and internal quotation marks omitted).
The STAA provides, in relevant part:
49 U.S.C. § 31105. The STAA "was enacted in 1983 to encourage employee reporting of noncompliance with safety regulations governing commercial motor vehicles." Brock v. Roadway Express, Inc., 481 U.S. 252, 258, 107 S.Ct. 1740, 95 L.Ed.2d 239 (1987). "Congress recognized that employees in the transportation industry are often best able to detect safety violations and yet, because they may be threatened with discharge for cooperating with enforcement agencies, they need express protection against retaliation for reporting these violations." Id.
The showings required of employees and employers pursuant to the STAA are similar to those required pursuant to the MWPA:
R & B Transp., LLC v. United States Dep't of Labor, Admin. Review Bd., 618 F.3d 37, 46 (1st Cir.2010) (citations and internal quotation marks omitted).
Kris-Way seeks summary judgment as to Capalbo's first theory of recovery, the DOT theory, on grounds that (i) the MWPA provides no protection for employees who are about to report but have not actually done so, and (ii) the STAA provides no protection unless an employee is both on the verge of reporting a violation and his or her employer perceives that he is about to do so, neither of which Capalbo can establish. See Motion at 14-15; Reply at 5-6.
Capalbo does not dispute that the DOT theory of recovery is not cognizable pursuant to the MWPA. See Opposition at 2, 8. In any event, Kris-Way is correct. The MWPA expressly protects actual, not anticipated, oral or written reports to the employer or a public body. See 26 M.R.S.A. § 833; see also, e.g., Costain v. Sunbury Primary Care, P.A., 2008 ME 142, ¶ 8, 954 A.2d 1051, 1054 ("Subsections (1)(A), (1)(C), and (2) of section 833, when read together, unambiguously limit the protection afforded by the [M]WPA to (1) employees (2) who report to an employer (3) about a violation (4) committed or practiced by that employer.") (footnote omitted).
Kris-Way accordingly is entitled to summary judgment as to Count One to the extent predicated on Capalbo's first theory of recovery, the DOT theory.
I reach a different conclusion with respect to the viability of Capalbo's DOT theory of recovery pursuant to the STAA. Kris-Way contends that, in order to claim the protections of the STAA, an employee must show both that (i) he or she was "on the verge" of reporting a violation and (ii) the employer was aware that he or she was about to do so. See Motion at 9. It seeks summary judgment as to the DOT theory of recovery on the bases that Capalbo cannot prove that he was "on the verge" of making a report to, or cooperating with, the DOT, see id. at 2, or that Kris-Way had any concern that he was about to report to the DOT, see id. at 15.
Kris-Way acknowledges that there is no caselaw construing the meaning of the "about to file" provision of the STAA. See id. at 9. However, it argues that this court should interpret that provision in the same manner as courts construing a "nearly identical" provision in the Seaman's Protection Act and an "about to report" provision in the Michigan Whistle-Blowers' Protection Act. See id. at 9-11.
Kris-Way's argument is unpersuasive. The relevant portion of the Seaman's Protection Act applies in circumstances in which "the seaman in good faith has reported or is about to report to the Coast Guard or other appropriate Federal agency or department that the seaman believes that a violation of a maritime safety law or regulation prescribed under that law or regulation has occurred[.]" 46 U.S.C. § 2114(a)(1)(A). Similarly, the Michigan Whistle-Blowers' Protection Act applies, in relevant part, in circumstances in which an employee or a person acting on his or her behalf "reports or is about to report, verbally or in writing, a violation or a
The STAA is materially distinguishable, affording protection in circumstances in which an employer "perceives that the employee has filed or is about to file a complaint or has begun or is about to begin a proceeding related to a violation[.]" 49 U.S.C. § 31105(a)(1)(A)(ii) (emphasis added). The statute is devoid of language requiring that an employee actually have filed, or even have been on the verge of filing, a report or complaint.
A reasonable trier of fact crediting Capalbo's evidence and drawing all reasonable inferences therefrom could conclude that Kris-Way (through supervisor Farrin) perceived that Capalbo had filed a complaint with the DOT, see Plaintiff's Additional SMF ¶ 60; Lord Aff. ¶ 3, and/or that Capalbo was about to file a complaint and cooperate with the DOT audit, in view of the earlier perceived complaint triggering the audit, see id., and Capalbo's complaint on August 18, 2008, two days before his discharge and shortly before the DOT audit, that the requested recreation of his logbooks was illegal, see Plaintiff's Additional SMF ¶ 42; Capalbo Aff. ¶ 2.
Accordingly, Kris-Way's bid for summary judgment as to Count Two, to the extent predicated on Capalbo's first theory of recovery, the DOT theory, must be denied.
Kris-Way seeks summary judgment as to Capalbo's second theory of recovery, the MDOL theory, on grounds that (i) he cannot make out a prima facie case of a causal link between his filing of an MDOL complaint and his firing and (ii) a wage complaint is not a protected activity pursuant to the STAA. See Motion at 15-17; Reply at 2-4.
As Kris-Way points out, see Motion at 16, seven months elapsed between the filing of Capalbo's MDOL wage complaint, of which Kris-Way was aware, and Capalbo's discharge, see Plaintiff's Additional SMF ¶ 13; Defendant's Reply SMF ¶ 13; Defendant's SMF ¶ 32; Plaintiff's Opposing SMF ¶ 32; Defendant's SMF ¶ 58; Ryan Aff. ¶ 20. This is too great a lapse in time to permit an inference of retaliatory termination based on timing alone. See, e.g., Ahern v. Shinseki, 629 F.3d 49, 58 (1st Cir.2010) ("Without some corroborating evidence suggestive of causation — and there is none here — a gap of several months cannot alone ground an inference of a causal connection between a
Capalbo does not dispute this point of law, but rejoins that Kris-Way subjected him not only to the adverse action of employment termination in August 2008 but also to a series of adverse disciplinary actions commencing the month after the filing of the MDOL complaint. See Opposition at 11. He cites, inter alia, Valentín-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 97 (1st Cir.2006), id., which stands for the proposition that certain disciplinary actions short of discharge, such as letters of admonishment, can constitute adverse employment actions, Valentín-Almeyda, 447 F.3d at 97.
As Kris-Way observes, see Reply at 3, Capalbo confronts an insurmountable obstacle in relying on those alleged disciplinary actions: he denies that they occurred, see Plaintiff's Additional SMF ¶ 18; Defendant's Reply SMF ¶ 18; Plaintiff's Additional SMF ¶ 48; Farrin Dep. at 61. Taking him at his word, he was subjected to no adverse disciplinary actions until his discharge in August 2008. Therefore, he falls short of demonstrating the existence of a triable issue as to whether he was discharged for filing an MDOL wage complaint in January 2008, warranting summary judgment in Kris-Way's favor on Count One to the extent predicated on Capalbo's second theory of recovery, the MDOL theory.
As Kris-Way points out, and Capalbo does not dispute, wage complaints are not within the sphere of protected activities for purposes of the STAA. See Motion at 16; Opposition at 14-17; 49 U.S.C. § 31105(a)(1)(A)(i)-(ii) (protecting activity or perceived activity "related to a violation of a commercial motor vehicle safety or security regulation, standard, or order"); Zurenda v. United States Dep't of Labor, No. 98-4298, 1999 WL 459775, at *2 (2d Cir. June 22, 1999) (upholding dismissal of STAA complaint when complainant supportably was found to have been discharged not because of protected activity but rather for refusing to drive to a certain location after expressing dissatisfaction with his wages and living conditions at a company apartment).
Thus, even if Capalbo had made out a triable issue of a causative link between his filing of his MDOL complaint and his discharge, summary judgment still would be warranted as to Count Two, to the extent predicated on Capalbo's second theory of recovery, the MDOL theory, on the ground that he fails to make out a prima facie case that, in filing his MDOL complaint, he engaged in a protected activity for purposes of the STAA.
Kris-Way accordingly is entitled to summary judgment as to Counts One and Two to the extent predicated on Capalbo's second theory of recovery, the MDOL theory.
Kris-Way seeks summary judgment as to Capalbo's third theory of recovery, the excessive hours theory, on the basis, inter alia, that the reports in question were made in conformity with Kris-Way's job requirements rather than constituting protected activity for purposes of either the MWPA or the STAA. See Motion at 17-21; Reply at 4-5.
Kris-Way cites caselaw interpreting the federal Whistleblower Protection Act, other states' whistleblower protection
Without confronting the force of Kris-Way's argument, Capalbo contends that, pursuant to the plain language of the MWPA, his evidence concerning his reports that he was approaching his maximum allowable hours suffices to create a triable issue of fact as to whether he engaged in protected activity. See Opposition at 9-10.
I find no case considering whether the making of a required report constitutes a protected activity for purposes of the MWPA. Nonetheless, the Law Court has stated that its "construction of the MHRA and [M]WPA has been guided by federal law[.]" Currie v. Industrial Sec., Inc., 2007 ME 12, ¶ 13, 915 A.2d 400, 404. In addition, this court has noted that, for purposes of the MWPA, a protected activity "is broadly defined as conduct by the plaintiff that is in opposition to an unlawful employment practice of the defendant." Osher, 703 F.Supp.2d at 66 (citations and internal punctuation omitted).
It is undisputed that Kris-Way told Capalbo in writing and orally that he shared responsibility for monitoring his hours and that he was to notify his supervisor whenever he was in danger of violating DOT regulations regarding the maximum hours of work. See Defendant's SMF ¶ 17; Plaintiff's Opposing SMF ¶ 17. Capalbo's evidence reveals that he did just that, variously notifying Farrin, Wheeler, Ryan, and his immediate supervisors at the bakery yard that he was about to exceed his maximum hours. See, e.g., Plaintiff's Additional SMF ¶¶ 6-10; Capalbo Dep. at 52-54, 113; Defendant's Reply SMF ¶ 10. There is no evidence that, on those occasions that Capalbo was directed to continue working beyond his maximum hours, he complained to anyone about the illegality of that directive. He never refused or failed to complete his yard jockey work at Country Kitchen, regardless of the hours that he was working. See Defendant's SMF ¶ 36; Plaintiff's Opposing SMF ¶ 36. Indeed, he states that he had to work excessive hours to support his family. See Plaintiff's Additional SMF ¶ 9; Capalbo Dep. at 54.
No reasonable trier of fact could conclude that the reports described by Capalbo, which Kris-Way required of him, constituted conduct in opposition to an unlawful employment practice of Kris-Way. Hence, they were not protected activity for purposes of the MWPA. Kris-Way accordingly demonstrates its entitlement to summary judgment as to Count One to the extent predicated on Capalbo's third theory of recovery, the excessive hours theory.
Capalbo does not dispute that his reports that he was about to exceed his maximum hours were not protected activity under the STAA. See Opposition at 14-17. In any event, for the reasons discussed
Capalbo contends that he marshals sufficient evidence to raise a triable issue that he was discharged in violation of both the MWPA and the STAA for refusing to carry out Farrin's illegal directive that he recreate six months' worth of logbooks. See Opposition at 9, 15-16. Kris-Way seeks summary judgment as to this fourth theory of recovery, the logbook theory, on grounds that (i) Capalbo's assertion that Farrin demanded that he recreate six months' worth of logs is inherently incredible, (ii) Capalbo fails to demonstrate that Kris-Way's reason for discharging him was pretextual, and (iii) his allegations of pretext fail, in any event, because Ryan, rather than Farrin, made the decision to discharge him. See Reply at 7-10.
As a threshold matter, Kris-Way argues that no reasonable fact-finder could find that Capalbo refused Farrin's alleged request to recreate six months' worth of logs. See Reply at 7-8. It asserts that (i) Capalbo should have had copies of his logbooks for the first two weeks of August if, as he contends, he turned them in, (ii) Capalbo initially testified that he was asked to recreate only two weeks' worth of logs and then altered his testimony, but was unable to provide any explanation for the change, (iii) it is incredible that Kris-Way would demand that Capalbo recreate six months' worth of logs when Capalbo allegedly had turned in three months' worth of logs, (iv) if Farrin wanted six months' worth of logs for the DOT audit, he would have provided Capalbo his timecards so that the DOT would not easily discover the fabrication, and (v) the fact that Capalbo did recreate two weeks' worth of logs, also an illegal act, undermines his claim that he refused to recreate six months' worth. See id.
Kris-Way makes a strong case; however, I do not find Capalbo's version of events so inherently incredible as to present no triable issue as to whether he engaged in protected activity. A reasonable fact-finder, crediting his version of events and drawing reasonable inferences therefrom, could conclude that (i) Kris-Way never required Capalbo to fill out logs for yard jockey work, see Plaintiff's Additional SMF ¶ 29; Capalbo Dep. at 80, (ii) Farrin had affirmatively directed yard jockeys not to keep logbooks, see Plaintiff's Additional SMF ¶ 20; Defendant's Reply SMF ¶ 20, (iii) Farrin knew that one of the purposes of the Auburn audit was to review the past six months' worth of Country Kitchen yard jockeys' logbooks for accuracy, see Defendant's SMF ¶ 42; Plaintiff's Opposing SMF ¶ 42; Plaintiff's Additional SMF ¶ 57; Defendant's Reply SMF ¶ 57, (iv) Farrin knew that Kris-Way did not have six months' worth of Capalbo's logbooks, see Defendant's SMF ¶ 44; Plaintiff's Opposing SMF ¶ 44, and (v) Farrin accordingly directed Capalbo to recreate six months' worth of logbooks and, when Capalbo protested the illegality of doing so, asked him to recreate only two weeks' worth, see Plaintiff's Additional SMF ¶¶ 41-42; Capalbo Dep. at 108-09; Capalbo Aff. ¶ 2.
Kris-Way next argues that its demand that Capalbo maintain logs cannot be viewed as the product of a retaliatory animus because Capalbo was in fact required to maintain logs, and his arguments otherwise are predicated on a misreading of applicable law. See Reply at 8-9. In so arguing, however, Kris-Way oversimplifies Capalbo's pretext theory. Even assuming
1. Kris-Way in general, and Farrin in particular, had been confused about DOT logbook requirements. Kris-Way's description of the job of yard jockey does not contain a requirement that yard jockeys maintain logbooks. See Plaintiff's Additional SMF ¶ 12; Defendant's Reply SMF ¶ 12. Ryan, Kris-Way's Vice-President of Operations, did not believe, prior to January 2008, that yard jockeys were required to maintain logbooks. See id. ¶ 11. Farrin affirmatively instructed yard jockeys not to maintain logbooks for yard jockey work. See id. ¶ 20.
2. While Farrin contends that Capalbo had problems maintaining logbooks, Capalbo's employment file is devoid of reference to any disciplinary action for such an offense. See id. ¶¶ 47, 68. Kris-Way had a "secret file" allegedly maintained by Farrin commencing in January 2008 documenting warnings to Capalbo concerning his failure to maintain logbooks. See id. ¶ 16. However, in January 2009, Kris-Way did nothing to ensure that other yard jockeys were filling out logs. See id. ¶ 17. In addition, Capalbo denies that the "secret file" warnings ever were given. See, e.g., id. ¶ 18. A reasonable fact-finder crediting Capalbo's evidence could conclude that (i) Kris-Way was not concerned, until the imminent DOT audit, about Capalbo's maintenance of logbooks or yard jockeys' maintenance of logbooks in general, and (ii) Farrin created the "secret log" to buttress Kris-Way's case for Capalbo's discharge, possibly, as Capalbo suggests, see Opposition at 7, subsequent to his discharge.
3. Farrin knew that one of the purposes of the DOT audit was to review the prior six months of logbooks of Country Kitchen workers for accuracy. See Defendant's SMF ¶ 42; Plaintiff's Opposing SMF ¶ 42; Plaintiff's Additional SMF ¶ 57; Defendant's Reply SMF ¶ 57. Farrin, who had affirmatively instructed yard jockeys not to maintain logbooks, had reason to be concerned that Kris-Way would be found in noncompliance with respect to yard jockeys' logbooks. Tellingly, although Farrin stated in his affidavit that, at the time of Capalbo's discharge, he was in the process of making all of Kris-Way's records available to the DOT, he admits that he provided only those logbooks that were requested by the DOT. See Plaintiff's Additional SMF ¶¶ 55-56; Defendant's Reply SMF ¶¶ 55-56.
5. Farrin directed Capalbo, on August 18, 2008, to recreate initially six months' worth of logbooks, and then only those for the first two weeks of August. See Plaintiff's Additional SMF ¶¶ 40-41; Capalbo Dep. at 108-09.
6. After Capalbo balked and complained that recreating a logbook was illegal, see Plaintiff's Additional SMF ¶ 42; Capalbo Aff. ¶ 2, Farrin engineered his discharge by (i) refusing to provide him with copies of his timecards, which would have made his recreation of his logbooks more accurate, see Plaintiff's Additional SMF ¶¶ 43-44; Capalbo Dep. at 104-05, 119, (ii) complaining the following day to Ryan, who was Farrin's supervisor, about Capalbo's asserted logbook problems, see Defendant's SMF ¶ 47; First Farrin Aff. ¶¶ 27-28; Ryan Aff. ¶¶ 10-11, and (iii) participating in a meeting on August 20, 2008, during which Ryan compared Capalbo's recreated logbooks against his timecards, predictably finding discrepancies, see Defendant's SMF ¶¶ 50-54; Plaintiff's Opposing SMF ¶¶ 50-54. Per Kris-Way's written policies, falsifying logbooks was an offense serious enough to warrant immediate termination. See Defendant's Reply SMF ¶ 68; Second Farrin Aff. ¶ 13 & Exh. 3 thereto.
7. Although Capalbo's fellow yard jockey, Lord, turned in logbooks, they were not properly completed with respect to days in which Lord worked in the yard. See Plaintiff's Additional SMF ¶ 78; Exh. 7 to Loranger Aff. Yet, there is no evidence that Kris-Way took any disciplinary action against Lord.
A reasonable-fact finder crediting this evidence could infer that Farrin engineered Capalbo's discharge because Capalbo balked at recreating six months' worth of logbooks and complained that doing so was illegal.
Kris-Way finally seeks summary judgment as to Capalbo's fourth theory of recovery, the logbook theory, on the basis that Capalbo ignores the fact that Ryan, rather than Farrin, made the decision to discharge him, rendering Farrin's alleged knowledge and motives irrelevant. See Reply at 9-10 (quoting Thompson, 522 F.3d at 178 ("[T]he discriminatory intent of which a plaintiff complains must be traceable to the person or persons who made the decision to fire him.") (citation and internal quotation marks omitted)).
Nonetheless, a reasonable fact-finder could trace Ryan's decision to discharge Capalbo to Farrin's alleged retaliatory animus. As this court has noted:
Donahue v. Clair Car Connection, Inc., 736 F.Supp.2d 294, 320 (D.Me.2010) (citations and internal punctuation omitted). As discussed above, Capalbo adduces sufficient evidence to demonstrate discriminatory animus on Farrin's part and his active engineering, using Ryan as his "cat's paw," of Capalbo's discharge.
Kris-Way's request for summary judgment as to Counts One and Two, to the extent predicated on Capalbo's fourth theory of recovery, the logbook theory, accordingly is denied.
For the foregoing reasons, I
