JOHN A. WOODCOCK, JR., Chief Judge.
Concluding that the complaints of a trucking company employee to the company about the condition of its trucks may constitute protected conduct under the Surface Transportation Assistance Act, the Court denies the employer's motion for summary judgment.
On July 30, 2010, Dennis Manske filed a complaint against UPS Cartage Services, Inc. (Cartage), alleging that Cartage violated the Surface Transportation Assistance Act (STAA), the Maine Human Rights Act (MHRA), and the Maine Whistleblowers' Protection Act (MWPA).
Cartage is incorporated in the state of Delaware and has a principal place of business
Cartage is a company that picks up and delivers heavy air freight on behalf of Supply Chain Solutions. DSMF ¶ 4; PRDSMF ¶ 4. UPS has acquired a number of businesses over the years related to the package delivery industry and acquired a company known as Menlo Forwarding (Menlo) in December 2004, which operated from a facility located at 470 Riverside Street, Portland, Maine. DSMF ¶ 5; PRDSMF ¶ 5. UPS integrated the Menlo business into the business of Cartage and continued to operate from the Portland, Maine facility until Cartage closed that facility on May 13, 2011. DSMF ¶ 6; PRDSMF ¶ 6.
Cartage's operation in Portland involved picking up heavy air freight from commercial customers of Supply Chain Solutions in local package trucks and transporting that freight in large tractor-trailer trucks from the Portland facility to distribution points in either Manchester, New Hampshire or Poughkeepsie, New York. DSMF ¶ 7; PRDSMF ¶ 7. Cartage also transported freight from the distribution points in Manchester and Poughkeepsie back to Portland for local delivery to customers of Supply Chain Solutions. DSMF ¶ 8; PRDSMF ¶ 8. In the summer of 2008, Cartage employed approximately thirteen commercial vehicle drivers at the Portland facility. DSMF ¶ 9; PRDSMF ¶ 9.
Unionized drivers at the Portland facility were members of the International Brotherhood of Teamsters Local 340 (Union) and operated pursuant to a collective bargaining agreement (CBA) with Cartage. DSMF ¶ 10; PRDSMF ¶ 10. As provided in Article 6 of the CBA, new drivers hired by Cartage worked under the CBA but were subject to a thirty-day probationary period before they could become members of the Union, at which point the rights of the CBA would attach. DSMF ¶ 11; PRDSMF ¶ 11. Article 6 of the CBA further permitted Cartage to extend the probationary period for an additional thirty days for any reason. DSMF ¶ 12; PRDSMF ¶ 12. Although the CBA provided that Cartage could not terminate Union members without "just cause," the CBA did not restrict Cartage's ability to terminate probationary employees for any lawful reason. DSMF ¶¶ 13-14; PRDSMF ¶¶ 13-14.
Before June 2008, Cartage hired a third-party vendor to transport freight on the so-called line-haul route, which consisted of shipping freight by truck between Cartage's facility in Portland, Maine and the Boston-Manchester Regional Airport in Manchester, New Hampshire. DSMF ¶ 15; PRDSMF ¶ 15. Cartage began using its own drivers to drive the line-haul route in late June 2008. DSMF ¶ 16; PRDSMF ¶ 16.
As of August 2008, Marie "Lynn" Easler was General Manager of Cartage's Portland center and three supervisors, Jaye Smith, Jamie Lovejoy, and Darren Chipman, reported to her as General Manager.
Darren Chipman, as Operations Supervisor, was responsible for ensuring that drivers were properly inspecting the trucks and, as a supervisor, he was responsible for equipment, maintenance on the equipment, driver write-ups, and getting equipment repaired.
At all relevant times, in accordance with 49 C.F.R. § 396.11, Cartage required drivers, after each trip, to inspect the condition of the vehicles they drove, including specific vehicle parts and operating systems listed in that regulation. DSMF ¶ 19; PRDSMF ¶ 19. At all relevant times, in accordance with 49 C.F.R. § 396.11, Cartage further required drivers to document the results of their post-trip vehicle inspections as the "reporting driver" on a form known as Equipment Daily Inspection and Condition Reports (also known as DVIRs) listing "any defect or deficiency ... which would affect the safety or operation of the vehicle or result in a mechanical breakdown." DSMF ¶ 20; PRDSMF ¶ 20. To permit them to carry out these duties, Cartage provided each driver with the necessary DVIR form to be used each day for each covered truck, which form contained a list of inspection items required by 49 C.F.R. § 396.11 and provided space for driver comments.
Generally, before each trip, drivers were required to review the DVIR completed by the prior driver and sign the report as the "reviewing driver" to certify that any deficiency noted in the DVIR by the reporting driver had been repaired or deferred, that the vehicle had not been taken out of service, and that the vehicle was safe to drive; however, Cartage never instructed Mr. Manske regarding the completion of DVIRs.
Cartage hired Dennis Manske as a driver/dockworker on or about June 30, 2008 with the expectation that he would drive the line-haul route, although his job would become subject to the bidding procedures of the CBA if and when Mr. Manske became a member of the Union. DSMF ¶ 17; PRDSMF ¶ 17. Part of Mr. Manske's job duties on a typical day included driving the line-haul route on the evening shift. DSMF ¶ 18; PRDSMF ¶ 18.
On various occasions during the month of July 2008, while employed at Cartage, Mr. Manske recorded in DVIRs that several of the trucks he was required to drive had deficiencies and submitted those DVIRs to his supervisors. DSMF ¶ 29; PRDSMF ¶ 29. Specifically, he reported a number of issues with a number of the pieces of equipment that he operated during the first thirty days of his employment with Cartage by completing and submitting pre- and post-trip DVIRs to Cartage management. PSAMF ¶ 8; DRPSAMF ¶ 8. Mr. Manske also had a number of oral discussions with his supervisors and with Ms. Easler in which he reported deficiencies. DSMF ¶ 30; PRDSMF ¶ 30; PSAMF ¶ 9; DRPSAMF ¶ 9. Mr. Manske submitted DVIRs to Cartage as either the reporting or reviewing driver before and after each trip that he made on the line-haul route during his employment with Cartage. DSMF ¶ 25; PRDSMF ¶ 25.
On one occasion, Mr. Manske showed Ms. Easler the truck that Mr. Manske was being asked to drive for Cartage to highlight his concerns and Ms. Easler responded that the truck was "disgusting" and "should be sent to the junkyard." PSAMF ¶ 15; DRPSAMF ¶ 15.
During a meeting with Ms. Easler and supervisors Mr. Lovejoy and Mr. Chipman, Mr. Manske said that he believed that one of Cartage's trucks was set up as a city tractor and was not suitable for the line-haul route due to perceived limitations on the truck's speed and acceleration. DSMF ¶ 31; PRDSMF ¶ 31. Ms. Easler recalls that Mr. Manske complained to her that the truck he was assigned was a "City truck" that lacked the power and acceleration of a road truck. PSAMF ¶ 17; DRPSAMF ¶ 17.
Mr. Manske reported to Ms. Easler that there was a wire coming out of the seat in one of the vehicles and Ms. Easler believes that the wire coming out of the seat, if not addressed, was a safety issue. PSAMF ¶ 16; DRPSAMF ¶ 16. Mr. Manske also asked whether Cartage would install a higher seatback in one of its vehicles because the low seatback in the truck left nothing between his head and the glass window directly behind his head and he was worried that if he were rear-ended, his head could snap back and hit the glass, leading to serious injury.
Mr. Manske reported to Cartage that a truck he was asked to drive had an exhaust leak that was resulting in fumes coming into the truck's cab.
Mr. Manske reported to Ms. Easler in early August 2008 that he had written up a Cartage truck for having a loose U-bolt and that if the police inspected the truck in question they would put it out of service.
Mr. Manske, along with fellow driver Alan Thomas, asked Ms. Easler and supervisor Mr. Chipman whether Cartage would add additional mirrors to the fenders of one of the Cartage vehicles. DSMF ¶ 32; PRDSMF ¶ 32. Mr. Manske told Ms. Easler that he felt it would be safer if the trucks had spot mirrors.
Mr. Manske raised a concern to Ms. Easler that one or more of the tractors he drove on the line-haul route did not have air conditioning.
Mr. Chipman recalls that a so-called rebranded truck started in service on July 30, 2008 at the Portland facility. PSAMF ¶ 22; DRPSAMF ¶ 22. Mr. Manske inspected the rebranded truck as of the time it arrived at the Portland center after being rebranded and a few days before the truck went into service.
After Mr. Manske brought these issues with the rebranded truck to Cartage management's attention, his superiors — Ms.
Ms. Easler believes that Mr. Manske subjectively believed that the equipment issues he raised were safety concerns. PSAMF ¶ 38; DRPSAMF ¶ 38. Mr. Chipman believes that the issues that Mr. Manske raised about the so-called Boston and rebranded trucks were warranted.
Cartage's expert Darry Stuart opined that Mr. Manske appropriately reported problems with the condition of the Cartage equipment in a timely way to Cartage. PSAMF ¶ 41; DRPSAMF ¶ 41. Mr. Stuart believes that there was nothing inappropriate about Mr. Manske bringing these issues about the vehicles he was operating to management's attention and that Mr. Manske diligently brought to Cartage equipment issues that he deemed needed repair on the vehicle. PSAMF ¶ 42; DRPSAMF ¶ 42. Mr. Stuart concedes that some of the conditions that Mr. Manske brought to Cartage's attention were "technical violations" of DOT regulations; he defined "technical violation" to mean vehicle conditions not specifically covered by DOT regulations but could nonetheless provide a basis for a driver to determine that the vehicle was unsafe to drive under his discretion.
Although Cartage maintained an official "Open Door Policy," which encouraged employees to bring any concerns to any member of management, in Mr. Manske's case, managers expressed anger and yelled at him when he brought complaints forward, told him that his complaints were not made in good faith, took issue with his reported concerns about the vehicles, and extended his probationary period due to his reports about his equipment.
Mr. Manske never reported to his supervisors at Cartage that he believed that the
On July 30, 2008, Cartage notified the Union business agent that it was electing to extend Mr. Manske's probation for thirty days. DSMF ¶ 46; PRDSMF ¶ 46. According to Mr. Chipman, there had been no basis for disciplinary action against Mr. Manske up to the point of deciding to extend his probation.
In its January 8, 2009 submission to the Maine Human Rights Commission, Cartage stated:
PSAMF ¶ 47; DRPSAMF ¶ 47. In fact, the issue with access to the airport was promptly resolved and Mr. Manske was only unable to do the long haul route for
According to Mr. Chipman, the decision to extend Mr. Manske's probation was based on the fact that "we had all these write-ups on these vehicles, that he possibly was getting, you know, a bad taste for UPS in the sense that, you know, things weren't — the company wasn't to what he expected, I guess, is how to say it so we were trying to get all the issues resolved and then start fresh over." PSAMF ¶ 59; DRPSAMF ¶ 59. The "issues" that Mr. Chipman referred to are the problems with the trucks that Mr. Manske noted on his DVIRs. PSAMF ¶ 60; DRPSAMF ¶ 60. Regarding the extension of Mr. Manske's probation, Mr. Chipman says, "I advocated for him to extend his period but it was the basis of basically on the attitude. We wanted to make sure that clear slate going forward and things would change" and Mr. Chipman's view was that Mr. Manske's attitude involved the equipment and the job not meeting his expectations. PSAMF ¶ 61; DRPSAMF ¶ 61. Mr. Chipman was also concerned that Mr. Manske's expressing dissatisfaction could spread to other employees.
According to Ms. Easler, Mr. Manske's probation was extended on July 30, 2008 because it was Ms. Easler's "fear" that his "attitude was one of confrontation and
Following the extension of his probation, Mr. Manske began to secretly bring a small digital audio recorder to work and to tape record conversations with his superiors without their knowledge, specifically on August 4, 2008 and August 16, 2008. DSMF ¶¶ 47-48; PRDSMF ¶¶ 47-48. During one of the recorded conversations between Mr. Manske and Ms. Easler on August 4, 2008, Mr. Manske told her that Kris-Way was in the process of "getting the issues taken care of with the replacement truck."
Article 30 of the CBA required that drivers take a thirty-minute break between the third and sixth hours of work. DSMF ¶ 52; PRDSMF ¶ 52. On or about August 13, 2008, Ms. Easler told Mr. Manske that he needed to take a thirty-minute break by 8:30 p.m., which was required by the CBA. DSMF ¶ 53; PRDSMF ¶ 53. Mr. Manske explained to Ms. Easler that he was not able to take a break at 8:30 p.m. because of his schedule and because he was not aware of a place to park his truck.
On or about August 16, 2008, Ms. Easler told Mr. Manske that at the end of the probationary period Cartage wanted someone who is "able to fit in, be able to take direction a lot of times without a whole lot of input. Case in point is the equipment. I can listen to you all day, Dennis, about equipment and how it should be specked, and how there should be a power mirror, power window on the passenger side. I cannot affect the change in that. So it's a waste of my time to even listen to you." PSAMF ¶ 54; DRPSAMF ¶ 54. Most of the examples Ms. Easler could think of regarding Mr. Manske being challenging and condescending all related to his reports regarding the Cartage equipment he was asked to use.
On August 25, 2008, before the end of his extended probationary period, Cartage decided that it would not retain Mr.
Mr. Manske's "prior history of all these complaints and the constant desire to have equipment other than what our company provided" were factors in Ms. Easler's decision to terminate his employment.
Cartage contends that it is entitled to summary judgment on each of Mr. Manske's claims because he "cannot demonstrate that he engaged in protected activity" under the STAA, the MWPA, or the MHRA. Def.'s Mot. at 10. As Mr. Manske "did nothing more than what was required of him by Cartage and by federal law," namely "notify the company of [d]eficiencies that he observed with the vehicles that he was asked to drive so that Cartage could make the necessary repairs," Cartage says the whistleblower statutes do not apply because they "do not protect reports made as a required part of an employee's job duties." Id. It explains that "no public policy is implicated when an employee reports
Cartage says that the same legal standard applies to all three causes of action and each statute provides that "[a]n employee who makes a required report is only doing what his employer expects of him and pays him to do and is therefore not in the class of employees that whistleblower statutes were enacted to protect." Id. at 13. For this point, Cartage relies heavily on two decisions from the Federal Circuit, Willis v. Department of Agriculture, 141 F.3d 1139 (Fed.Cir.1998) and Huffman v. Office of Personnel Management, 263 F.3d 1341 (Fed.Cir.2001). In Willis, the Federal Circuit rejected a whistleblower claim from a federal employee who "did no more than carry out his required everyday job responsibilities." 141 F.3d at 1144. Similarly in Huffman, the Federal Circuit held that "reports made as part of an employee's assigned normal job responsibilities are not covered by the WPA when made through normal channels." 263 F.3d at 1344.
Cartage claims that if the whistleblowing statutes are interpreted to encompass the types of complaints that Mr. Manske made to Cartage, "thousands of drivers in the trucking industry alone, who are subject to state and federal trucking industry regulations, would automatically establish a prima facie case of whistleblower activity whenever a disciplinary action is taken against them simply by doing their jobs." Def.'s Mot. at 15. Cartage adds that its position "does not mean that whistleblower statutes can never protect employees like Manske who are required to report maintenance issues." Id. Rather, it says, "it simply means that the reporting of [d]eficiencies through ordinary channels, which is required by law and by Cartage, is not protected." Id.
Mr. Manske responds by employing the McDonnell Douglas burden-shifting analysis to the facts in his STAA and MWPA claims. Pl.'s Opp'n at 6-8. To make out a prima facie case for these claims, he says, he must establish that he engaged in protected activity, that he was subjected to an adverse employment action, and that there is a causal connection between the two. Id. at 6-7. Then the burden shifts to the employer to produce evidence of a legitimate, non-retaliatory reason for the adverse employment action and finally back to the employee to demonstrate that the proffered reason is a pretext. Id. at 7.
Mr. Manske then turns to the main point of Cartage's motion: its claim that Mr. Manske's complaints were not protected conduct because he was only doing his job. Id. at 8-16. Contrary to Cartage's contentions, Mr. Manske maintains that internal reports to an employer do fall within conduct protected by the STAA and the MWPA. Id. at 8-9, 11-15. Furthermore, he says that protecting employees who report illegal and unsafe conditions is consistent with the purpose of the federal and state statutes. Id. at 9-11, 15-16. Finally, he distinguishes Willis and Huffman as applying a "different law to a different set of facts." Id. at 16-20.
In its reply, Cartage contends that Mr. Manske's position is "based on a fundamental fallacy that is unsupported by the undisputed facts of this case: that Manske was in any way involved in disclosing wrongdoing on the part of Cartage." Def.'s Reply at 1 (emphasis in original). Cartage emphasizes that, as it is in the trucking business, automotive repairs are in the ordinary course of its business, that Mr. Manske's complaints about the trucks were entirely routine, and that Cartage promptly responded to his complaints by
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). A fact is "material" if it "has the potential to change the outcome of the suit." Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir.2011) (quoting McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995)). An issue is genuine if "a reasonable jury could resolve the point in favor of the nonmoving party." Tropigas, 637 F.3d at 56 (quoting McCarthy, 56 F.3d at 315).
Once this evidence is supplied by the moving party, the nonmovant must "produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999) (citation and internal punctuation omitted). In other words, the non-moving party must "present `enough competent evidence' to enable a factfinder to decide in its favor on the disputed claims." Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir.2002) (quoting Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir.1993)). The Court then "views the facts and draws all reasonable inferences in favor of the nonmoving party." Ophthalmic Surgeons, Ltd. v. Paychex, Inc., 632 F.3d 31, 35 (1st Cir.2011). However, the Court "afford[s] no evidentiary weight to `conclusory allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative.'" Tropigas, 637 F.3d at 56 (quoting Rogan v. City of Boston, 267 F.3d 24, 27 (1st Cir.2001)); accord Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir.2009); Carroll, 294 F.3d at 236-37.
The nub of the parties' dispute is whether Mr. Manske's complaints to Cartage amount to protected conduct under the law. The Court turns to the STAA; which reads in part:
49 U.S.C. § 31105(a). In Brock v. Roadway Express, Inc., 481 U.S. 252, 107 S.Ct. 1740, 95 L.Ed.2d 239 (1987), the United States Supreme Court observed that Congress enacted the STAA "in 1983 to encourage employee reporting of noncompliance with safety regulations governing commercial motor vehicles." Id. at 258, 107 S.Ct. 1740. The Brock Court noted that "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 STAA, the Supreme Court explained, "reflects a careful balancing of the relative interests of the Government, employee, and employer." Id. at 259, 107 S.Ct. 1740. The balance is between the "Government's interests in promoting highway safety and protecting employees from retaliatory discharge" and the employer's "interest in controlling the makeup of its work force." Id. at 262-63, 107 S.Ct. 1740.
The DOT has promulgated regulations to guide the enforcement of the STAA. Under 49 C.F.R. § 396.3(a), "[e]very motor carrier ... must systematically inspect, repair, and maintain, or cause to be systematically inspected, repaired, and maintained, all motor vehicles ... subject to its control." 49 C.F.R. § 396.3(a). The DOT imposes an obligation on the drivers "to report" and "every driver shall prepare a report in writing at the completion of each day's work on each vehicle operated." 49 C.F.R. § 396.11(a)(1). Among the equipment the DVIR must "at least" cover are windshield wipers, wheels and rims, and rear vision mirrors. 49 C.F.R. § 396.11(a)(1). The regulations mandate that the report "identify the vehicle and list any defect or deficiency discovered by or reported to the driver which would affect the safety of operation of the vehicle or result in its mechanical breakdown." 49 C.F.R. § 396.11(b). The regulations also require "corrective action": "Prior to requiring or permitting a driver to operate a vehicle, every motor carrier ... shall repair any defect or deficiency listed on the driver vehicle inspection report which would be likely to affect the safety of operation of the vehicle" and "[e]very motor carrier ... shall certify on the original driver vehicle inspection report ... that the defect or deficiency has been repaired or that repair is unnecessary before the vehicle is operated again." 49 C.F.R. § 396.11(c).
Viewing the evidence in the light most favorable to Mr. Manske, there is enough evidence in this record for the Court to find that Mr. Manske's reports to Cartage concerning the condition of its vehicles fit within either the listed conditions for which a report is mandatory, 49 C.F.R. § 396.11(a)(1), or the regulation's broader requirement that the driver report "any defect or deficiency" that "would affect the safety of operation of the vehicle or result in its mechanical breakdown." 49 C.F.R. § 396.11(b).
The question narrows to the issue posed by the parties: whether Mr. Manske's
Willis, 141 F.3d at 1142 (quoting 5 U.S.C. § 2302(b)(8)). With this definition in mind, the Willis Court concluded that Mr. Willis's complaints to his supervisors after a number of his field findings were reversed on appeal did not amount to conduct protected under the WPA. Id. at 1143-44. The Willis Court held that an employee who makes disclosures as part of his normal duties cannot claim the protection of the WPA. Id. at 1144.
In 2001, the Federal Circuit in Huffman concluded that an employee's complaint to a supervisor about that supervisor's conduct did not constitute a "disclosure" under the WPA. 263 F.3d at 1350 ("When an employee reports or states that there has been misconduct by a wrongdoer to the wrongdoer, the employee is not making a `disclosure' of misconduct"). But the Huffman Court refined Willis to include within the protection of the WPA disclosures made by an employee "outside of normal channels" and disclosures by an employee that are not part of the employee's "normal duties." Id. at 1354. Thus, in Willis and Huffman, the Federal Circuit clarified that when employee disclosures rise above an employee's ordinary and routine job duties, they merit the protection of the WPA.
The STAA is a very different statute. Presumably because of the direct impact of commercial vehicles on public safety, in enacting the STAA, Congress eliminated much of the ambiguity in the WPA. Congress recognized that by performing ordinary and routine job duties, drivers "are often best able to detect safety violations," Brock, 481 U.S. at 258, 107 S.Ct. 1740, and Congress therefore mandated reporting requirements. Furthermore, as the DOT regulations make clear, in making the required report, it is the employee's determination of whether a "defect or deficiency... would affect the safety of operation of the vehicle or result in its mechanical breakdown." 49 C.F.R. § 396.11(b). Unlike the "disclosure" requirement of the WPA, the STAA protects employees who have "filed a complaint" or are "about to file a complaint." 49 U.S.C. § 31105(a)(1)(2).
In Clean Harbors Environmental Services v. Herman, 146 F.3d 12 (1st Cir. 1998), the First Circuit rejected an argument similar to the one Cartage is making here. In Clean Harbors, the employer contended that "the STAA anti-retaliation protection is available only to employees who file complaints with a government
Other circuits have reached the same conclusion. In Dalton v. United States Department of Labor, 58 Fed.Appx. 442 (10th Cir.2003), the Tenth Circuit concluded that a driver who had been fired after refusing to operate a truck due to his concerns about the safety of the truck's cables had made a complaint to his supervisor that was protected under the STAA. In Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th Cir.1987), the Sixth Circuit noted that driver reports to a superior about defective conditions in a company truck were protected activity under the STAA. Similarly, in Yellow Freight Systems, Inc. v. Reich, 38 F.3d 76 (2d Cir. 1994), a driver's complaint about the truck's lack of adequate power "constituted activity protected by the `because' clause of the STAA" and the Court held that the employer "discharged him as a result of his engagement in this protected activity." Id. at 85. Significantly, in Dalton, Moon, and Yellow Freight, the drivers reported the defective conditions to their supervisor or manager and in Yellow Freight, the driver completed a DVIR. Dalton, 58 Fed.Appx. at 443-44; Moon, 836 F.2d at 228; Yellow Freight, 38 F.3d at 78-79.
The Court rejects Cartage's attempt to infuse WPA standards into an STAA cause of action.
Confident of victory on the STAA count, Cartage blankly asserts that "[t]he anti-retaliation provisions of the MWPA and the MHRA are modeled after the STAA and protect similar reporting activities." Def.'s Mot. at 11. Cartage assumed that once the Court ruled in its favor on the STAA, the state statutory counts would fall of their own weight, and it made no separate argument about whether it was entitled to judgment on the state statutory counts. The state statutes have not been quoted or analyzed; no Maine case law has been cited. Because any claim that Cartage may have against the application of the MWPA and the MHRA has not been properly developed, the Court has not reached those issues.
The Court DENIES the Defendant's Motion for Summary Judgment as to Count I and DISMISSES without prejudice the Defendant's Motion for Summary Judgment as to Counts II and III. (Docket #46).
SO ORDERED.
In his paragraph 4, Mr. Manske asserts that Ms. "Easler claims that employees never brought equipment safety issues to her attention." PSAMF ¶ 4. Cartage denied this assertion as not supported by the record. DRPSAMF ¶ 4. The Court agrees with Cartage that the record does not support Mr. Manske's assertion and has not included paragraph 4 in its recitation.
Easler Dep. 42:6-23. Again, in view of Ms. Easler's testimony, Cartage's denial of Mr. Manske's paragraph 19 is inexplicable and frivolous.
PSAMF Attach. 4, Videotaped Dep. of Marie Lynn Easler, at 34:8-15 (Easler Dep.). In view of Ms. Easler's testimony, Cartage's denial of Mr. Manske's paragraph 18 is inexplicable and frivolous.
PSAMF Attach. 11, Dep. of Darry W. Stuart, at 112:6-9. In view of Mr. Stuart's unequivocal response, the Court refuses to accept Cartage's qualified response and deems Mr. Manske's paragraph 44 admitted.
Chipman Dep. 105:19-106:3. Mr. Chipman's deposition testimony is sufficient record support for paragraph 49. The Court declines to accept Cartage's denial and deems the paragraph admitted.
In its paragraph 50, Cartage asserted that in each of the secretly recorded conversations, Ms. Easler reminded and instructed Mr. Manske that it was his job to write up any maintenance or safety-related issues with the trucks he was asked to drive and instructed him to continue to write up any concerns he had from his inspections. DSMF ¶ 50. Mr. Manske denied Cartage's paragraph 50, saying that its citations do not support the statements and that Ms. Easler told him that she had extended his probation because of his reports about the equipment. PRDSMF ¶ 50. In support of the paragraph, Cartage cited Ms. Easler's affidavit and the transcripts in Exhibits D and E of James Radke's affidavit. DSMF ¶ 50. Paragraph thirty-three of Ms. Easler's affidavit states only that during a conversation on August 4, 2008, she "encouraged Mr. Manske to continue to document any maintenance issues that he observed." Aff. of Marie L. Easler ¶ 33 (Docket #49) (Easler Aff.). The cited portion of the August 4, 2008 conversation does not support Cartage's statement. Aff. of James F. Radke (Docket #48) Attach. 4, Transcription of Conversation on Aug. 4, 2008. The Court has not included this part of paragraph 50 in its statement of facts. The cited portion of the August 16, 2008 recording does support the statement but only as regards the conversation in which Ms. Easler told Mr. Manske that "[his] job is to keep writing out the PMs." Id. Attach. 5, Transcription of Conversation on Aug. 4, 2008, at 27:5-12. The Court has included the portion of Cartage's paragraph 50 that is supported by the record but has eliminated the portion that is not. Further, as the Court is obligated to view the record in the light most favorable to Mr. Manske, it has included his clarification of Cartage's paragraph 50. PRDSMF ¶ 50.
The Court reviewed the cited portion of Mr. Manske's transcript and has included what is reflected in his testimony. PSAMF Attach. 2, Continued Dep. of Dennis Manske, at 200:7-20.
PSAMF Attach. 7, Transcription of Conversation on Aug. 16, 2008, at 26:2-3. In view of this unequivocal statement from Ms. Easler, it is difficult to understand how Cartage could deny this statement in good faith. The Court has included it in its recitation.
