JON D. LEVY, District Judge.
The United States Magistrate Judge filed his Recommended Decision (ECF No. 124) with the court on April 1, 2014, pursuant
I have carefully reviewed and considered the Magistrate Judge's Recommended Decision, together with the entire record; I have made a de novo determination of all matters adjudicated by the Magistrate Judge's Recommended Decision; and I concur with the recommendations of the United States Magistrate Judge for the reasons set forth in his Recommended Decision.
It is therefore
JOHN H. RICH III, United States Magistrate Judge.
Hartt Transportation Systems, Inc. ("Hartt") moves for summary judgment as to former employee John Stark's three claims against it, for (i) disability-based discrimination and breach of confidentiality in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. (Count I), (ii) retaliation in violation of the Surface Transportation Assistance Act of 1982 ("STAA"), 49 U.S.C. § 31105 (Count II), and (iii) retaliation in violation of the Maine Whistleblower's Protection Act ("MWPA"), 26 M.R.S.A. § 861 et seq., as enforced through the Maine Human Rights Act ("MHRA"), 5 M.R.S.A. § 4551 et seq. (Count III). See Complaint (ECF No. 1) ¶¶ 1, 110-15; Defendant's Motion for Partial Summary Judgment (ADA/Confidentiality Claim) ("Defendant's S/J Motion/Confidentiality") (ECF No. 87) at 1, 10; Defendant's Motion for Partial Summary Judgment (ADA Discrimination/MWPA/STAA Claims) ("Defendant's S/J Motion/Remaining Claims") (ECF No. 86) at 1, 30.
In connection with its motions, Hartt also seeks to preclude Stark from relying, in opposing summary judgment, on facts set forth in his opposing statement of material facts that are not set forth in his additional statement of material facts. See Defendant's Expedited Motion Requesting Order Prohibiting Plaintiff From Relying on Any Additional Facts Contained in His Opposing Statement of Material Facts That Do Not Appear in His Additional Statement of Material Facts ("Defendant's Motion/Facts") (ECF No. 106).
Stark cross-moves for summary judgment on his claim of violations of ADA confidentiality provisions but not on causation, acknowledging that there is a triable issue as to whether those alleged violations caused Hartt to terminate his employment. See Plaintiffs Motion for Partial Summary Judgment ("Plaintiff's S/J Motion") (ECF No. 84) at 1-2, 10.
For the reasons that follow, I grant in part and deny in part the Defendant's Motion/Facts and recommend that the court (i) grant the Plaintiff's S/J Motion as to Count I to the extent that Stark alleges that disclosures made on December 13 and 15, 2010, violated ADA confidentiality provisions, but otherwise deny it, (ii) grant the Defendant's S/J Motion/Confidentiality as to Count I to the extent that Stark alleges that the disclosure made on October 7, 2010, violated ADA confidentiality provisions and that there was any violation of the ADA examination provisions, but otherwise deny it, and (iii) grant the Defendant's S/J Motion/Remaining Claims as to Count III, Stark's claim of retaliation in violation of the MWPA, and Count I to the extent that Stark alleges discrimination based on a record of disability in violation of the ADA, but otherwise deny it.
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." Rodriguez-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 out-come 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 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); Fed.R.Civ.P. 56(c). "As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party." In re Spigel, 260 F.3d 27, 31 (1st Cir.2001) (citation and internal punctuation omitted).
"This framework is not altered by the presence of cross-motions for summary judgment." Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir.2003). "[T]he court must mull each motion separately, drawing inferences against each movant in turn." Id. (citation omitted); see also, e.g., Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir.1996) ("Cross motions for summary judgment neither alter the basic Rule 56 standard, nor warrant the grant of summary judgment per se. Cross motions simply require us to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed. As always, we resolve all factual disputes and any competing, rational inferences in 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[.]").
The parties' statements of material facts, credited to the extent that they are either admitted or supported by record citations in accordance with Local Rule 56, with disputes resolved in favor of Hartt as the nonmovant, reveal the following.
Stark was employed by Hartt from October 8, 2010, until December 17, 2010, as an over-the-road ("OTR") driver, based out of Hartt's Auburn terminal. Plaintiffs Statement of Undisputed Material Facts ("Plaintiff's SMF") (ECF No. 85) ¶ 1; Defendant
On October 6, 2010, Stark underwent a U.S. Department of Transportation ("DOT") physical examination, conducted by Dr. Kevin Flanigan at Concentra in Lewiston, Maine. Plaintiff's SMF ¶ 2; Defendant's Opposing SMF ¶ 2.
On October 7, 2010, Stark went to Central Maine Conditioning Clinic ("CMCC") for a separate post-offer, pre-employment job placement assessment ("JPA"). Id. ¶ 5. During pre-employment physicals, CMCC classifies individuals into three color categories based upon its JPA. Id. ¶ 6.
The October 7, 2010, examination of Stark by CMCC was different from a DOT examination and was not a DOT examination. Id. ¶ 8.
During the course of the October 7, 2010, assessment, Stark also completed a medical questionnaire and a signature page, and a CMCC employee completed a job placement questionnaire based on information that he provided. Id. ¶ 14.
CMCC faxed the results of the JPA to Hartt, and Hartt Human Resources Assistant Rose Rogers received them. Id. ¶¶ 17, 19.
On or about December 9, 2010, Stark informed two of Hartt's employees that he was planning to see his Veterans Administration ("VA") doctor in connection with reports of pain during the prior week. Id. ¶ 21.
On or about December 13, 2010, at Hartt's request, Stark underwent a medical examination at CMCC to ensure that he was fit to return for duty, and was cleared to return to work that same day. Id. ¶ 22. The same day, CMCC sent a fax to Rogers regarding Stark that Rogers received. Id. ¶ 23. The fax included a report provided to CMCC by Stark in connection with the fitness-for-duty examination that Hartt had Stark attend. Id. ¶ 25. It was Hartt's normal procedure to have the company completing a fit-for-duty evaluation provide a report to Hartt like the one Hartt received on December 13, 2010, regarding Stark. Id. ¶ 26.
Hartt referred Stark for the December 13, 2010, fitness-for-duty examination to make sure that he was cleared to perform the functions of his job. Id. ¶ 30. In the memorandum from CMCC employee Melissa Bilodeau included with the December 13, 2010, fax, she indicated, "As a result of John's present strength and range of motion, I do believe he can return to work safely." Id. ¶ 31. CMCC staff did not indicate anywhere in the December 13, 2010, fax that Stark required reasonable accommodations or restrictions in connection with performing his job duties for Hartt. Id. ¶ 32.
The fax also contained references to Stark's October 7, 2010, pre-employment physical and the results of that physical. Id. ¶ 33. The fax stated, "It should be noted that [Stark] never mentioned any cervical injuries at his original pre-employment assessment." Id. ¶ 34. After receiving the fax, Rogers showed it to Murphy. Id. ¶ 35. One of the things that Rogers and Murphy discussed when reviewing the fax was that Stark had not provided information on his pre-employment assessment. Id. ¶ 36.
Murphy decided that she needed to contact Bob Brainerd, owner of CMCC, because she wanted to know why subsequently disclosed information had not been brought forward during Stark's pre-employment assessment. Id. ¶ 37.
During the call, Rogers wrote down, "Bob said sign form whether pre-existing or not and failed to disclose the info. We are concerned that you failed to disclose info and we would not have hired you for a job that could have aggravated your condition. . . could have been red." Id. ¶ 42. Rogers testified that she wrote down, "We are concerned that you failed to disclose info and we would not have hired you for a job that could have aggravated your condition" because it was a statement made during the call. Id. ¶ 43.
Murphy's notes of the call state, "Discussed with Bob Brainerd, did fully disclose medical history which can be caused for termination. Protruding disc is symptomatic — currently it is now non symptomatic. He can do the job function, but is symptomatic." Id. ¶ 46.
The decision to terminate Stark was made the next day, December 16, 2010. Id. ¶ 50.
When Rogers received the results of Stark's October 7, 2010, JPA, she noted that his JPA had been completed and placed the information in his driver qualification file. Defendant's Statement of Additional Material Facts ("Defendant's Additional SMF"), commencing on page 14 of Defendant's Opposing SMF, ¶ 50; Rogers Dep. at 16-17. The only individuals who have access to the driver qualification file are employees in Hartt's Human Resources Department. Defendant's Additional SMF ¶ 50; Supplemental Affidavit of Rick Parisien ("Suppl. Parisien Aff.") (ECF No. 98-1), attached thereto, ¶ 3.
The parties' statements of material facts, credited to the extent that they are either admitted or supported by record citations in accordance with Local Rule 56, with disputes resolved in favor of Stark as the nonmovant, reveal the following.
Hartt is a national, family owned and managed dry goods motor carrier service that has been in business since 1948. Statement of Material Facts in Support of Defendant's Motions for Partial Summary Judgment ("Defendant's SMF") (ECF No. 88) ¶ 1; Plaintiff's Opposing Statement of Material Facts ("Plaintiff's Opposing SMF") (ECF No. 96) ¶ 1. Its main office is located in Bangor, Maine, and it has terminals in Auburn, Maine, Sumter, South Carolina, and Fulton, Kentucky. Id. Hartt has been recognized for its superior safety record by the American Trucking Association's Safety Management Council, the Maine Motor Transport Association, and Reliance Insurance Company each year beginning in 1991. Id. ¶ 2.
Stark worked as an owner-operator of his own tractor-trailer rig for four years. Plaintiff's Statement of Additional Material Facts ("Plaintiff's Additional SMF"), commencing on page 63 of Plaintiffs Opposing SMF, ¶ 1; Defendant's Reply to Plaintiffs Opposing Statement of Material Facts and Plaintiff's Statement of Additional Facts ("Defendant's Reply SMF") (ECF No. 112) ¶ 1. The work that Stark performed as a driver for other companies prior to starting as an employee for Hartt and as an owner-operator required a commercial driver's license ("CDL") and a DOT card, and Stark had both at all times that that he was driving commercial vehicles. Id. ¶ 2.
Hartt maintains a comprehensive employee handbook ("Handbook") that it refers to as its "Human Resource Directive: Company Drivers." Id. ¶ 3. Prior to beginning work, all Hartt drivers go through an intensive eight-hour driver orientation. Id. ¶ 4. On October 8, 2010, Stark attended Hartt's driver orientation. Id. During orientation, he received a copy of the Handbook. Id.
The Handbook contains Hartt's Employee Conduct and Disciplinary Action Policy, which includes the following relevant provisions:
The foregoing examples are not all inclusive, and there are many other grounds upon which disciplinary action, up to and including termination of employment, may be imposed.
Defendant's SMF ¶ 6; Plaintiff's Opposing SMF ¶ 6.
Stark understood that failure to comply with Hartt's policies and rules could be grounds for termination. Id. ¶ 8. He also understood that dishonesty could be grounds for termination, as could excessive absenteeism, tardiness, or any absence without notice from work. Id.
The Handbook also contains Hartt's Vehicle and Equipment Use Policy:
Id. ¶ 10.
The Handbook also contains Hartt's Position Objective and Responsibilities Policy:
Id. ¶ 12. On October 8, 2010, Stark acknowledged that he received, read, and understood Hartt's Position Objective and Responsibilities Policy. Id. ¶ 13. He understood that he was responsible for following all of Hartt's policies. Id. ¶ 14.
The Handbook also contains an entire Safety Manual providing detailed information to drivers about how to safely operate their trucks and how to properly complete Driver's Inspections Report ("DIR") forms, also called Vehicle Inspection Reports ("VIRs"). Id. ¶ 15. The Safety Manual contains a "Pre-Trip and Post-Trip Vehicle Safety Inspections" policy, which states that all drivers must "check each safety aspect of the vehicle prior to taking it out on the road," should "mak[e] management and maintenance aware of [any] problem," and should also complete a post-trip inspection after each trip as well. Id. The manual also includes a checklist and detailed procedure for both inspections. Id. The Safety Manual also provides a sample DIR form and states that "[a]nytime you find damage or defects to the equipment, not only must it be written on the VIR but you must call the shop to get the defects repaired immediately." Id.
Stark acknowledged that he received driver safety orientation, which includes a review of the Safety Manual, on October 8, 2010. Id. ¶ 16. Stark was well aware of the process for completing pre-trip inspections and filling out DIR forms, as he had worked as a driver of commercial vehicles for several years prior to his employment at Hartt. Id. ¶ 17.
The Handbook also contains an entire Maintenance Manual providing detailed information to drivers about how to properly operate and maintain the trucks they are driving, the fact that drivers are not allowed to repair their own trucks, and procedures for obtaining repairs both on-site at Hartt's terminals and on the road. Id. ¶ 18. The Maintenance Manual also includes the "Vehicle Inspection Reports" policy, which provides that "[a]ll company drivers . . . are required by law to complete a [Vehicle Inspection Report] for each tractor and trailer combination" and, "[i]f you haul the same trailer for consecutive days you need to fill one out for each day." Id. ¶ 19. Stark acknowledged that he received driver orientation by the Maintenance Department on October 8, 2010. Id. ¶ 20.
Stark understood that he was required to "operate vehicles and equipment in a safe responsible manner and in compliance with federal and state laws and regulations governing vehicle use." Id. ¶ 21. Stark also understood that he was "expected to inspect vehicles or equipment before operating to ensure that the vehicle equipment will function in a safe manner." Id. He was aware of whom he needed to call at Hartt if he needed repairs while he was out on the road. Id. Finally, he understood that Hartt's policy is that "when a driver fails to perform proper maintenance of a vehicle it will result in appropriate disciplinary action." Id.
Stark also attended Northeast Technical Institute in Scarborough, Maine, where he studied to obtain his CDL. Id. ¶ 22. As part of that schooling, he studied Maine's Commercial Driver License Manual ("CDL Manual"), published by Maine's Bureau of Motor Vehicles. Id. The CDL Manual contains all of the information regarding pre-trip and post-trip inspections that is contained in Hartt's Handbook. Id.
As per the policies contained in the Maintenance Manual portion of the Handbook,
Stark drove Unit 9478 while he was employed by Hartt. Id. ¶ 32. If Stark noticed a defect during his pre-trip inspection, and it was serious enough, he would not take his truck out. Id. ¶ 35. Instead, he would go right to the Maintenance Department to have it fixed. Id. Stark admits that a driver with a CDL is not permitted to drive a vehicle that he or she knows has a mechanical defect unless he or she has been instructed to drive it somewhere for repairs. Id. ¶ 36. Stark never went out on the road with his vehicle when he knew it had a mechanical defect. Id. If he discovered issues on the road, he would immediately fix the defect or call Hartt's Maintenance Department to get it fixed. Id.
Stark believes that Hartt did not repair two mechanical issues, involving an exhaust leak and a broken bunk heater, in a timely manner. Id. ¶ 38. Stark's expert, Jan Stetson Reynolds, opined that a broken bunk heater would not constitute a violation of either the FMCSR or Maine's Motor Vehicle Inspection Rules ("MMVIR"). Id. ¶ 39. Stark reported the exhaust leak to the Maintenance Department at Hartt and told them, "I have an exhaust leak and you should look at it." Id. ¶ 40. He claims that he reported the exhaust leak two or three times but does not recall when he reported it or when it was fixed. Id. Exhaust leaks are frequently
Stark's driver logs and DIR forms give no indication that he reported an exhaust leak. Id. ¶ 41. However, on December 8, 2010, Hartt's Repair Order Detail form for Stark's truck shows that, at Stark's request, Hartt's Maintenance Department looked for an exhaust leak and was unable to find one, although it did replace the cab filter. Id.
As an OTR driver, Stark was required by law to maintain a CDL and a current DOT medical certificate. Id. ¶ 47. Prior to scheduling an OTR driver for driver orientation, Hartt schedules each driver for (i) the physical examination required by the DOT, (ii) the drug test required by the DOT, and (iii) a JPA to ensure that the driver is able to perform the essential functions of the job. Id. ¶ 48.
As part of the separate JPA, Stark was required to provide the examiner with his medical history through CMCC's Health History Questionnaire. Id. ¶ 55. CMCC uses the information provided on the Health History Questionnaire to assess whether a person can safely perform the JPA itself and the physical demands of the job of OTR driver, and whether it needs to obtain any information from the person's health care providers to make those determinations. Defendant's SMF ¶ 56; Brainerd Dep. at 22-24.
Stark was required to disclose, on the Health History Questionnaire, whether he had (i) a work or non-occupational injury that placed restrictions on him at work, (ii) any current or chronic orthopedic/musculoskeletal joint pain limitations, (iii) an injury that might interfere with his ability to perform the job safely, (iv) pain sometimes upon performing certain activities, and whether he then had, or had had in the past, (i) back trouble, back pain, or back injury, (ii) depression, (iii) nervous or mental problems, (iv) neck injury or whiplash, or (v) hernia, rupture. Defendant's SMF ¶ 57; Plaintiffs Opposing SMF ¶ 57. The only medical issue that Stark disclosed on his Health History Questionnaire was his 2009 inguinal hernia repair. Defendant's SMF ¶ 58; Exh. 2 to Brainerd Dep. at 19-20.
Defendant's SMF ¶ 59; Plaintiff's Opposing SMF ¶ 59.
On or about December 6, 2010, Stark left a voicemail for Rogers, Hartt's Human Resources Assistant, indicating the he was interested in switching from his position as an OTR driver to a position as a regional
On or about December 9, 2010, Stark informed Cote, Hartt's Safety Coordinator, that he was planning to go see his VA doctor. Defendant's SMF ¶ 68; Cote Dep. at 50. Cote emailed Rogers and Roberta Murphy, Hartt's Safety Manager who handled workers' compensation claims, to inform them about Stark's injury. Defendant's SMF ¶ 68; Exh. 9 to Parisien Dep. Rogers responded that Stark would need to be cleared to return to work. Id.
On December 10, 2010, Stark provided Hartt with a doctor's note stating that he would be out of work for just three days, from December 9-11, 2010. Id. ¶ 73. Because Rogers now had Stark's return to work date, she scheduled Stark for a fitness-for-duty examination on December 13, 2010, at CMCC to ensure that he could safely perform the essential functions of his position. Id.
On December 13, 2010, Stark went to his fitness-for-duty evaluation at CMCC. Id. ¶ 75. Hartt referred Stark for the December 13, 2010, fitness-for-duty evaluation to make sure that he was cleared to perform the functions of his job. Plaintiff's Additional SMF ¶ 27; Defendant's Reply SMF ¶ 27.
The same day, CMCC faxed Rogers a letter containing the results of the examination, including, among other things, that Stark was cleared to return to work. Defendant's SMF ¶ 75; Plaintiff's Opposing SMF ¶ 75. In the memorandum from CMCC employee Bilodeau included with the December 13, 2010, fax, she stated, "As a result of John's present strength and range of motion, I do believe he can return to work safely." Plaintiffs Additional SMF ¶ 28; Defendant's Reply SMF ¶ 28. The letter also stated that Stark believed that he had aggravated a previous neck injury of a protruding disk when he was driving his vehicle in the snow for three days. Defendant's SMF ¶ 75; Plaintiffs Opposing SMF ¶ 75. Finally, the letter stated that Stark "never mentioned any cervical injuries at his original pre-employment assessment." Id. Parisien does not know whether anyone informed Stark after he passed the December 13, 2010, fitness-for-duty examination that he was cleared to return to work. Plaintiff's Additional SMF ¶ 29; Defendant's Reply SMF ¶ 29.
During Rogers' and Murphy's December 15, 2010, telephone call with Brainerd, Brainerd stated, among other things, that Stark was cleared to return to work and could perform all of the essential functions of his position. Defendant's SMF ¶ 78; Plaintiff's Opposing SMF ¶ 78.
Stark denies that he ever told anyone, including his doctors, that he had a "herniated disk." Id. ¶ 80. Stark also denies being aware that he had any type of "neck problem." Id. He merely acknowledges that he may have questioned whether he might have a herniated disk. Id.
On Friday, December 17, 2010, Wiles informed Stark that his employment had been terminated. Defendant's SMF ¶ 85; Wiles Dep. at 60-61. During the termination meeting, Wiles said nothing about Stark's reporting of the exhaust leak or any other mechanical issues. Defendant's SMF ¶ 85: Stark Dep. at 173-75.
During the period that Stark worked as a commercial driver for Hartt, he was able to perform the physical and mental functions of the job. Plaintiffs Additional SMF ¶ 6; Stark Aff. ¶ 6.
Since his termination from Hartt, Stark has continued to work as a commercial truck driver. Plaintiff's Additional SMF ¶ 10; Defendant's Reply SMF ¶ 10. In particular, Stark worked for K & K Excavation driving a dump truck from May 2011 until he was laid off in December 2011, and then again from March 2012 until he was laid off in January 2013. Id. Stark was hired by Perry Transport in the summer of 2013 as a commercial driver and has driven for Perry Transport as a full-time commercial driver to the present. Id. His current job requires a CDL and a DOT card, and Stark maintains both of these things. Id.
Hartt's expert Dr. Curtis, a physician who has performed DOT examinations throughout his career, has opined that Stark failed to disclose certain medical conditions during his DOT physical examination that would have influenced his ability to be certified to drive. Defendant's SMF ¶ 61; Curtis Dep. at 26. Specifically, Dr. Curtis opined that the information Stark provided on his DOT Physical Examination Report was "inaccurate" when compared with his medical records because the "medical records revealed conditions that were not identified" in the DOT report. Defendant's SMF ¶ 61; Exh. 3 (ECF No. 77-6) to Curtis Dep. at 8. Dr. Curtis also noted in his report that the "medical records provided had large bodies of the record redacted," with references to issues that were not disclosed on his DOT history, and that "[t]hese medical conditions could likely impact his ability to safely operate a commercial motor vehicle[.]" Id. These medical conditions included the hernia and cervical pain with a degenerative and/or herniated cervical disk with left-sided radiculopathy and arm numbness and weakness. Defendant's SMF ¶ 61; Curtis Dep. at 26-27.
Given that Stark's medical records are heavily redacted, Dr. Curtis cannot determine whether his mental health condition(s), or any prescription medications that he had to take as a result of those condition(s), would have disqualified him from driving. Defendant's SMF ¶ 63; Plaintiffs Opposing SMF ¶ 63. Stark's failure to disclose this information disqualifies him from obtaining his DOT medical certificate. Id. ¶ 64.
In response to questions regarding any evidence of symptoms or weakness associated with Stark's history of hernia repair and neck/shoulder condition, Dr. Curtis acknowledges that Stark performed the essential job requirements during the course of the October 7, 2010, JPA. Plaintiff's Additional SMF ¶ 22; Defendant's Reply SMF ¶ 22.
According to Dr. Curtis, the next appropriate step would be for Stark to be reassessed by a DOT examiner to determine
Dr. Curtis admits that he does not know whether there is anything in terms of Stark's medical conditions that would have rendered him, in Dr. Curtis' opinion, unsafe to drive. Id. ¶ 38.
Stark alleges in Count I of his complaint that Hartt not only unlawfully discriminated against him on the basis of a perceived disability, in violation of the ADA, but also violated "the examination and confidentiality provisions of the ADA." Complaint ¶ 111.
The ADA permits covered entities to "require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant" if, inter alia:
The purpose of the ADA confidentiality provisions is to "protect disabled employees from job discrimination by ensuring the results of job-related medical examinations would not be kept in their personnel files." Yoder v. Ingersoll-Rand Co., 31 F.Supp.2d 565, 569 (N.D.Ohio 1997), aff'd, 172 F.3d 51 (6th Cir.1998).
Stark moves for summary judgment on the elements of an ADA breach of confidentiality claim other than causation, namely, that (i) he was subjected to a pre-employment examination as defined by section 12112(d)(3) on October 7, 2010, and a fitness-for-duty evaluation as defined by section 12112(d)(4)(B) on December 13, 2010, and (ii) Hartt violated the confidentiality requirements of section 12112(d)(3)(B) when protected information was provided to its managers via fax on October 7, 2010, via fax on December 13, 2010, and during a conversation between the owner of CMCC and Hartt's managers on December 15, 2010. See Plaintiffs S/J Motion at 1-2. He concedes that there is a triable issue as to whether these asserted breaches of confidentiality caused his termination and damages resulting therefrom. See id. at 1.
Hartt does not contest the applicability of section 12112(d) to Stark's October 7, 2010, and December 13, 2010, examinations; however, it contends that the disclosures at issue comported with ADA confidentiality requirements. See Defendant's Opposition to Plaintiff's Motion for Partial Summary Judgment ("Defendant's S/J Opposition") (ECF No. 97) at 2-8. It cross-moves for summary judgment both on that basis and on the basis that any alleged violation caused Stark no damages. See Defendant's S/J Motion/Confidentiality at 6-10.
Stark's argument is straightforward. He contends that (i) section 12112 is clear that there are only three scenarios in which information obtained during a medical examination may be disclosed, (ii) only the first scenario is arguably applicable, and (iii) Hartt cannot show that the disclosures at issue fit the first scenario because no information obtained in either examination indicated that he had restrictions or required accommodations. See Plaintiff's S/J Motion at 4. He elaborates that:
1. CMCC's fax to Rogers on October 7, 2010, indicated that Stark was classified as "green" and able to perform the duties of his job. See id. at 5. In any event, even had Stark been noted to have restrictions
2. CMCC's fax to Rogers on December 13, 2010, indicated that Stark was fit to return to duty. See id. at 5-6. In any event, even had Stark been noted to have restrictions or require accommodations, CMCC again transmitted considerably more detail than would have been permissible, in particular its notation that Stark "never mentioned any cervical injuries during his pre-employment assessment." Id.
Rogers and Murphy scheduled the December 15, 2010, telephone call with CMCC's Brainerd precisely because of their concerns over the disclosure that Stark had not mentioned his neck condition during his October 7, 2010, pre-employment physical. See id. at 8. This topic was discussed in some detail during that teleconference. See id.
As Stark points out, see id. at 6-7, in Blanco v. Bath Iron Works Corp., 802 F.Supp.2d 215 (D.Me.2011), this court denied a defendant employer's motion to dismiss for failure to state a claim when it concluded that "a company physician's disclosure to the employer of an alleged omission in an employee's employment entrance examination questionnaire potentially violate[d] 42 U.S.C. § 12112(d)(3)(B)[,]" Blanco, 802 F.Supp.2d at 216. The court observed:
Id. at 223. The court rejected the defendant employer's argument that disclosure of an employee's untruthfulness on a medical questionnaire did not constitute a violation of the ADA confidentiality provisions, reasoning:
Id. at 224.
Stark posits that precisely the same violation occurred in this case on December 13 and 15, 2010, when CMCC disclosed to Hartt human resources managers confidential information regarding his asserted omission of information during his pre-employment examination. See Plaintiff's S/J Motion at 8. Stark also analogizes this case to Downs v. Massachusetts Bay Transp. Auth., 13 F.Supp.2d 130 (D.Mass. 1998), in which the plaintiffs employer fired him after learning during the course of investigating a workers' compensation claim that he had given false responses to two questions asked during a pre-employment medical examination. See id. at 9-10; Downs, 13 F.Supp.2d at 132. The Downs court held, inter alia, that the employer's release of the plaintiff's medical file to its workers' compensation claims representative did not fall within any of the permissible uses of that confidential
Hartt rejoins that Stark ignores the existence of an exception to the ADA confidentiality requirement for disclosures regarding potential work-related injuries for workers' compensation purposes and the existence of a defense that its challenged actions were required or necessitated by another federal law or regulation, namely, DOT regulations regarding drivers' fitness to drive a commercial motor vehicle. See Defendant's S/J Opposition at 2-3.
It adds that:
1. CMCC's disclosure of the results of the October 7, 2010, JPA to Rogers did not violate the ADA confidentiality provision because there is no evidence that the information was shared with anyone but Rogers, who obtained it as part of the hiring process, simply noted that the JPA had been completed, and placed it in Stark's driver qualification file, separate from his personnel file. See id. at 3-4. Hartt contends that, in any event, the disclosure on that date caused Stark no damages: he was hired and commenced work as a commercial truck driver. See id. at 4.
2. CMCC's disclosures of December 13 and 15, 2010, were made only to Parisien, Hartt's Director of Human Resources and Director of Safety, Rogers, its Human Resources Assistant, and Murphy, its Safety Manager, all of whom needed to be aware of the issue to determine any necessary accommodations for Stark, whether Hartt needed to file a report of occupational injury form for workers' compensation purposes, whether Stark could safely perform his job duties in compliance with DOT requirements, and whether Stark was qualified to hold a commercial driver's license. See id. at 4-5. Hartt notes that, despite the fact that the fitness-for-duty evaluation concluded that Stark could return safely, it also stated that he believed he had aggravated a previous neck injury of a protruding disk when driving his vehicle in the snow for three days. See id. at 5. It argues that this makes it clear that the disclosure is covered under the exception for potential work-related injuries for workers' compensation purposes and raised questions whether Stark was qualified to hold a commercial driver's license under the DOT regulations. See id.
Hartt distinguishes Blanco on the basis that it did not involve an employer's supervening duties pursuant to the DOT regulations, and Downs on the basis that the workers' compensation claims representative was permitted unlimited access to the employee's entire medical file, which went beyond the scope of the release he had signed, and the question that the employee had answered inaccurately during his pre-employment examination was an impermissible question as to whether he had filed previous claims for workers' compensation. See id. at 6-7. Hartt reasons that, to find that it violated the ADA confidentiality provisions in this case would mean that DOT drivers could routinely lie on pre-employment DOT physical examinations without potential consequence, implicating public safety. See id. at 7-8.
Stark rejoins that Hartt fails to establish that its actions fit within the confines of any recognized exception to the ADA confidentiality provisions. See Plaintiff's S/J Opposition/Confidentiality at 1-7.
For the reasons that follow, I conclude that Stark is entitled to summary judgment as to the December 13 and 15, 2010, disclosures, but not as to the October 7, 2010, disclosure, with respect to which Hartt is entitled to summary judgment.
There is no dispute that Rogers, a Hartt Human Resources Assistant, received CMCC's October 7, 2010, fax of Starks' JPA and placed it in a "driver qualification file" to which only Human Resources employees had access. See Defendant's Additional SMF ¶ 50; Suppl. Parisien Aff. ¶ 3.
CMCC's October 7, 2010, disclosure of the JPA results to an appropriate Hartt employee, who placed them in a segregated file, did not constitute a violation of the ADA's confidentiality provisions.
I reach a different conclusion with respect to the December 13 and 15, 2010, disclosures. In both instances, CMCC disclosed confidential information from Stark's post-offer, pre-employment physical — that he had not then reported a prior neck injury — without any permissible purpose.
First, the disclosures do not fit within the only arguably applicable ADA exception, the informing of supervisors and managers of "necessary restrictions on the work or duties of the employee and necessary accommodations[.]" 42 U.S.C. § 12112(d)(3)(B)(i). Hartt argues that the disclosures were made only to Parisien, Rogers, and Murphy, all of whom needed to be aware of the neck injury for purposes, inter alia, of determining any necessary accommodations for Stark. See Defendant's S/J Motion/Confidentiality at 8. However, CMCC noted no restrictions and no need for any accommodations for Stark during either the October 7, 2010, pre-employment examination or the December 13, 2010, fitness-for-duty evaluation.
Second, Hartt fails to make a persuasive case that, in these circumstances, there was an exception to the ADA confidentiality provision for workers' compensation purposes. Hartt reasons that because the December 13, 2010, fax noted that Stark believed he had aggravated a previous neck injury of a protruding disk while driving his vehicle in the snow for three days, it clearly fell within the exception for potential work-related injuries for workers' compensation injuries. See Defendant's S/J Opposition at 5. It states that the three Hartt employees with whom the information was shared, Parisien, Rogers, and Murphy, needed to be aware of Stark's neck injury to determine whether Hartt needed to file an Employer's First Report of Injury or Disease form for workers' compensation purposes. See id.
In its papers, Hartt relied generally on EEOC Notice No. 915.002, EEOC Enforcement Guidance: Workers' Compensation and the ADA (Sept. 6, 1996) ("EEOC Guidance") in support of this proposition. See Defendant's S/J Opposition at 4; Defendant's S/J Motion/Confidentiality at 6-7. At oral argument, its counsel specifically cited Questions 7 and 8 and Footnote 8 of the EEOC Guidance. Those sections
However, the EEOC Guidance cautions, with respect to Question 7, that "the questions and examinations must not exceed the scope of the specific occupational injury and its effect on the employee's ability, with or without reasonable accommodation, to perform essential job functions or to work without posing a direct threat[,]" and with respect to Question 8, that "the questions and examinations must be consistent with the state law's intended purpose of determining an employee's eligibility for workers' compensation benefits[,]" may not be used "as an opportunity to ask far-ranging disability-related questions[,]" and "must be limited in scope to the specific occupational injury and its impact on the individual[.]" Id. ¶¶ 7-8.
Hartt does not explain, and the evidence does not show, how CMCC's disclosure of Stark's failure during his pre-employment examination on October 7, 2010, to report his neck injury was necessary to ascertain the extent of its workers' compensation liability or the extent of Stark's ability to perform essential job functions. Indeed, CMCC concluded on December 13, 2010, that he could perform essential job functions safely.
Third, on this record, Hartt fails to make a persuasive case of entitlement to summary judgment on the basis of a DOT defense. As Hartt observes, the ADA provides that it may be a defense to a charge of discrimination "that a challenged action is required or necessitated by another Federal law or regulation[,]" including safety rules and regulations. Defendant's S/J Motion/Confidentiality at 7 (quoting 29 C.F.R. § 1630.15(e)) (emphasis added by Hartt omitted). See also Albertson's Inc. v. Kirkingburg, 527 U.S. 555, 573, 119 S.Ct. 2162,
Neither Albertson's nor Campbell concerned a clash between a federal safety rule and ADA confidentiality provisions. In Albertson's, the Supreme Court held that, pursuant to the ADA, an employer who required as a job qualification that an employee meet DOT vision standards need not justify enforcing the regulation solely because the DOT standard could be waived individual cases. See Albertson's, 527 U.S. at 558-60, 119 S.Ct. 2162. In Campbell, the United States District Court for the District of Maryland held that a job applicant's inability to power grasp the steering wheel of a motor vehicle as required by DOT standards rendered him unqualified, for purposes of the ADA, to perform the essential functions of the job of Federal Express courier. See Campbell, 918 F.Supp. at 920.
In Big Ridge, the court did address a purported clash between ADA confidentiality provisions and federal safety regulations: specifically, a demand by the Federal Mine Safety and Health Administration ("MHSA"), pursuant to the Federal Mine Safety & Health Act of 1977 ("Mine Safety Act"), that 39 mine operators permit MHSA inspectors to review employee medical and personnel records to verify that the mines had not been underreporting miners' injuries and illnesses. See Big Ridge, 715 F.3d at 633-34, 655-56. The court held that there was no clash, given that the privacy of the underlying records would be protected by the MHSA and, in any event, if the mine operators were sued for a breach of confidentiality in providing the information, they could raise the defense that the Mine Safety Act required them to permit MHSA agents to inspect and copy employee medical records relevant to mine-related illnesses and injuries. See id. at 655-56.
Hartt argues that the disclosures in December 2010 were "required or necessitated" by DOT regulations in that:
1. DOT regulations bar employers from knowingly permitting a driver to operate a commercial motor vehicle if he or she does not have a current commercial driver's license or is disqualified to drive such a vehicle, and the provision by a driver of false information during a DOT physical examination is grounds for immediate revocation of his or her DOT medical certificate. See Defendant's S/J Motion/Confidentiality at 8 (citing 49 C.F.R. §§ 391.37(a), 391.45, 391.51(2); Defendant's SMF ¶¶ 62, 65).
2. Stark voluntarily disclosed his preexisting neck injury to Cote and Rogers, and Parisien, Rogers, and Murphy all needed to be aware of both his reported neck injury and his failure to disclose his preexisting neck injury to determine whether he could safely perform his job duties in compliance with DOT requirements. See id. (citing Pouliot v. Town of Fairfield, 226 F.Supp.2d 233 (D.Me.2002), for the proposition that an employer did not violate the ADA's confidentiality provisions
Nonetheless, as Stark points out, see Plaintiff's S/J Opposition/Confidentiality at 1-2, CMCC's pre-employment examination was not a DOT physical examination. Stark underwent a separate DOT physical examination. Thus, the challenged disclosures were not required for the purpose of determining whether Stark was disqualified as a commercial motor vehicle driver based on the provision of falsified information during his DOT physical examination.
Nor did Stark voluntarily disclose the confidential information at issue, which was generated during the course of required pre-employment and fitness-for-duty examinations. See id. at 6. In Pouliot, by contrast, the court held the ADA confidentiality provisions inapplicable when the plaintiff voluntarily disclosed the very medical information that he complained was disseminated by his employer. See Pouliot, 226 F.Supp.2d at 246.
Finally, Hartt falls short of demonstrating the existence of a triable issue as to whether the December 2010 disclosures were made for the purpose of determining whether Stark could safely perform his job duties in compliance with DOT requirements. Hartt had required that Stark submit to a fitness-for-duty examination precisely for the purpose of determining whether he could safely return to work. CMCC had determined that he could, despite its notation that he had not disclosed a preexisting neck injury during his pre-employment examination. Moreover, the focus of the December 15, 2010, teleconference was on disciplinary consequences for Stark's asserted failure to disclose his neck injury to CMCC.
Here, as in Blanco, "[t]he ADA clearly protects the confidentiality of [Stark's] response if truthful and the ADA still protects its confidentiality if not." Blanco, 802 F.Supp.2d at 224. There is no triable issue as to whether CMCC's disclosures of information in December 2010 fit any of the three enumerated statutory exceptions or constitute appropriate disclosures for workers' compensation or DOT regulatory purposes.
Hartt alternatively seeks summary judgment as to the three disclosures at
With respect to the first disclosure in October 2010, I have recommended that the court find that there was no ADA confidentiality violation. However, if the court disagrees, I conclude that summary judgment is warranted on the alternative basis that Stark fails to generate a triable issue as to any damages flowing therefrom. At that time, Stark was classified as green and was hired and began working for Hartt. He identifies no negative consequence until CMCC made additional disclosures in December 2010. Indeed, at oral argument, Stark's counsel conceded that his client makes no showing of damages stemming from the October 2010 disclosure.
With respect to the December 2010 disclosures, Hartt argues that, even if it terminated Stark's employment for his failure to disclose his medical conditions during his DOT physical examination and his JPA — which it specifically denies — it would not be liable for damages under the ADA because it took that action in accordance with DOT regulations. See Defendant's S/J Motion/Confidentiality at 10. For this proposition, Hartt cites Talbot v. Maryland Transit Admin., Civil Action No. WMN-12-1507, 2012 WL 5839945 (D.Md. Nov. 15, 2012), McCroskey v. United Parcel Serv., Inc., No. 3:09-CV-71 (CDL), 2010 WL 5437257 (M.D.Ga. Dec. 22, 2010), and Barnes v. United Parcel Serv., 366 F.Supp.2d 612 (W.D.Tenn.2005). See id. None of these cases involve the interplay of the ADA confidentiality provisions and DOT regulations. See Talbot, 2012 WL 5839945 (prospective employee sued for disability discrimination when employer refused to hire him after he failed DOT medical examination); McCroskey, 2010 WL 5437257, at *11 (employee sued for disability discrimination when employer refused, inter alia, to promote him when he did not have a DOT card or DOT exemption on file with employer); Barnes, 366 F.Supp.2d at 613-14 (employee sued for racial discrimination after employer fired him for falsifying expiration date of his DOT card).
As discussed above, Hartt fails to demonstrate entitlement to summary judgment on the basis that the December 2010 disclosures of information reported during a non-DOT pre-employment physical examination were required to ensure compliance with DOT regulations.
For the foregoing reasons, I recommend that the court grant the plaintiff's motion as to disclosures made on December 13 and 15, 2010, but otherwise deny it, and grant the defendant's motion as to the disclosure made on October 7, 2010, and any claim of violation of the ADA examination provisions, but otherwise deny it.
As a threshold matter, I grant in part and deny in part Hartt's motion to prohibit
To the extent that Stark refers, in the Plaintiff's S/J Opposition/Remaining Claims, to facts set forth solely in his opposing statement of material facts, I have considered them solely for the purpose for which Stark offered them — to controvert or qualify specific facts set forth by Hartt. I have otherwise disregarded them. To the extent that Stark wished to set forth affirmative facts in support of his opposition to summary judgment, he should have set them forth in his statement of additional material facts, permitting Hartt a chance to admit, deny, or qualify them. See Loc. R. 56(c)-(d). If facts set forth solely in an opposing statement of material facts could be generally considered in opposition to summary judgment, it would render superfluous those sections of Local Rule 56 providing for the filing of a statement of additional facts by a nonmovant and a reply to that statement by the movant. See id.
Stark alleges in Count II of his complaint that Hartt unlawfully retaliated against him in violation of the STAA and in Count III that Hartt unlawfully retaliated against him in violation of the MWPA, as enforced through the MHRA. See Complaint ¶¶ 112-15. Hartt seeks summary judgment as to both claims on the bases that Stark did not engage in protected activity pursuant to either the MWPA or the STAA and that, even if he makes out a triable case that he did, he fails to establish a causal relationship between the alleged protected activity and his employment termination. See Defendant's S/J Motion/Remaining Claims at 16-22. Stark rejoins that his conduct constituted protected activity under both the MWPA and the STAA and that there is a triable issue as to causation. See Plaintiff's S/J Opposition/Remaining Claims at 16-25. For the reasons that follow, I conclude that Hartt is entitled to summary judgment as to Stark's MWPA claim but not his STAA claim.
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 to the protected activity." Id. at 65. "The burden of making out a prima facie case is not onerous." Daigle v. Stulc, 794 F.Supp.2d 194, 237 (D.Me.2011) (citations and internal quotation marks omitted).
"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).
Hartt argues that Stark cannot show that he engaged in protected activity pursuant to the MWPA because (i) he merely made reports required by Hartt's own policies and DOT regulations, (ii) he did not report to anyone at Hartt that he believed that Hartt had violated a law or rule or that he had a safety concern, and (iii) when he reported the alleged mechanical issues that he was having with his truck, Hartt mechanics immediately inspected and, to the extent necessary, repaired his truck. See Defendant's S/J Motion/Remaining Claims at 16-20. I conclude that Hartt is correct that Stark did not engage in protected activity for purposes of the MWPA.
It is undisputed that Stark was required, pursuant to Hartt's Position Objective and Responsibilities Policy, to check his equipment daily by doing a pre-trip inspection, report any unsafe equipment or working conditions to his supervisor, and report any needed repairs or special maintenance to the Maintenance Department.
As Hartt points out, see Defendant's S/J Motion/Remaining Claims at 18, this court in Capalbo v. Kris-Way Truck Leasing, Inc., 821 F.Supp.2d 397 (D.Me.2011), and Winslow v. County of Aroostook, No. 1:11-cv-162-GZS, 2013 WL 594762 (D.Me. Feb. 15, 2013), aff'd, 736 F.3d 23 (1st Cir.2013), held that reports made at the direction of an employer did not constitute protected activity for purposes of the MWPA. See Capalbo, 821 F.Supp.2d at 419; Winslow, 2013 WL 594762, at *12-*13.
Stark distinguishes Capalbo on the basis that, there, the employee merely made reports at his employer's direction that he was approaching the maximum number of hours permitted by DOT regulations but never complained when his work hours exceeded the maximum. See Plaintiff's S/J Opposition/Remaining Claims at 21-22. Therefore, Stark reasons, the court held that the employee had not reported anything unlawful and granted summary judgment on that basis. See id. at 22. Stark distinguishes Winslow on the basis that, there, at her supervisor's request, the employee merely drafted and disseminated notes regarding federal monitors' visit and findings, which the monitors themselves made publicly available. See id. at 20-21. Stark asserts that he was the only person to bring forward deficiencies with his equipment and did not merely reiterate information that was widely known or publicly available. See id. at 21. He contends that his case is closer to Parks v. City of Brewer, 56 F.Supp.2d 89 (D.Me.1999), which the Winslow court distinguished, and which he characterizes as rejecting an argument that an employee's report of a violation of a city ordinance was not protected because making such reports was part of his job. See id. at 19, 21.
Stark finally contends that Hartt's construction of the MWPA creates an exception not found within the four corners of the statute for reports that are incidentally required as part of one's job. See id. at 19. He reasons that the recognition of such an exception not only contravenes the plain meaning of the unambiguous statute but also leads to the "absurd and illogical" result of treating employees whose jobs require monitoring or reporting unlawful or unsafe conditions differently from those whose jobs do not. Id. at 19-20.
Stark's efforts to distinguish Capalbo and Winslow and to align his case with Parks fall flat. Just as the employee in Capalbo complied with his employer's directive that he notify his supervisor when he was in danger of violating DOT regulations regarding his maximum number of hours, see Capalbo, 821 F.Supp.2d at 419, and the employee in Winslow complied with her employer's directives to memorialize and disseminate federal monitors' findings, see Winslow, 2013 WL 594762, at *12-*13, Stark complied with Hartt's directive to report his vehicle's mechanical problems to Hartt, both through DIRs and orally.
Finally, as Hartt notes in its reply, see Defendant's Reply to Plaintiff's Opposition to Defendant's Motion for Partial Summary Judgment (ADA Discrimination/MWPA/STAA Claims) ("Defendant's S/J Reply/Remaining Claims") (ECF No. 111) at 1-2, the First Circuit issued a decision affirming Winslow on November 15, 2013 — subsequent to the filing of Hartt's motion and Stark's response — in which it observed: "Though there may be exceptions, the usual rule in Maine is that a plaintiffs reports are not whistleblowing if it is part of his or her job responsibilities to make such reports, particularly when instructed to do so by a superior[,]" Winslow, 736 F.3d at 32 (citing, inter alia, Capalbo). The First Circuit added, "Similarly, in the Fair Labor Standards Act context, we have held that an employee who reports violations of laws or other requirements as part of his job is not engaging in protected activity for the purposes of an anti-retaliation provision." Id. (emphasis in original). In its reply, Hartt also cites Hall v. Mid-State Mach. Prods., Docket No.: 11-CV-068, 2013 WL 5510308, 2013 Me.Super. LEXIS 169 (Me.Super.Ct. Sept. 4, 2013). See Defendant's S/J Reply/Remaining Claims at 1-2. In Hall, the Maine Superior Court, citing, inter alia, Capalbo, applied what it termed a "manager rule," holding that a supervisor who reported wrongdoing through normal company channels could not "recover under the MWPA for making a report that was within his normal job duties[,]" Hall, 2013 WL 5510308, at *7, 2013 Me.Super. LEXIS 169, at *21. While Stark was not a manager, neither was the employee in Capalbo, which the Hall court cited with favor. See id.; Capalbo, 821 F.Supp.2d at 419.
Contrary to Stark's argument, see Plaintiffs S/J Opposition/Remaining Claims at 20, this construction of the MWPA does not lead to absurd or illogical results. In Kidwell v. Sybaritic, Inc., 784 N.W.2d 220 (Minn.2010), a case cited with approval in both Winslow and Capalbo, see Winslow, 736 F.3d at 32; Capalbo, 821 F.Supp.2d at 419, the Minnesota Supreme Court construed the phrase "good faith" in a state whistleblower protection statute similar to Maine's to mean that "the report that is claimed to constitute whistle-blowing must be made for the purpose of exposing an illegality and not a vehicle, identified after the fact, to support a belated whistle-blowing claim." Kidwell, 784 N.W.2d at 227 (citation and internal quotation marks omitted). The Kidwell court held that the Minnesota WPA did not contain "a job duties exception"; however, it observed that "[a]n examination of the employee's
Id. at 228-29 (citations omitted). In this case, Stark's reports were part and parcel of his assigned job duties, and he conveyed them through normal channels.
I reach a different conclusion with respect to whether Stark engaged in protected activity pursuant to the STAA. Hartt argues that he did not because (i) the STAA requires that a plaintiff report a specific violation of a specific DOT regulation, and he reported only routine mechanical issues, and (ii) he cannot claim to have reported a "violation" when he testified that he never went out on the road when he knew his truck had a mechanical defect, and he had any defects immediately repaired when he discovered them. See Defendant's S/J Motion/Remaining Claims at 20-21. Hartt cites Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 19 (1st Cir.1998), and BSP Trans Inc. v. U.S. Dep't of Labor, 160 F.3d 38, 49 (1st Cir. 1998), for the proposition that Stark's reports were not specific enough to constitute protected activity. See id.
As Stark rejoins, see Plaintiffs S/J Opposition/Remaining Claims at 17, Hartt misinterprets the STAA in arguing that an employee is not protected from retaliation
In Clean Harbors, the First Circuit rejected an employer's argument that the STAA does not cover complaints that are purely internal to an employer, holding that the U.S. Department of Labor Administrative Review Board had reasonably construed "[a]n employee's internal complaint to superiors conveying his reasonable belief that the company was engaging in a violation of a motor vehicle safety regulation" as a "protected activity" for purposes of the STAA. Clean Harbors, 146 F.3d at 19 (citation and internal quotation marks omitted). The First Circuit observed:
Id. at 22. While, in Clean Harbors, the employee had complained to his superiors that their actions would result in regulatory violations, see id., the First Circuit did not hold that a complaint must be made in that fashion to constitute protected activity for purposes of the STAA. See id. BSP Trans is not to the contrary. The First Circuit there had "no occasion to identify [the] exact locus" at which an employee's internal complaints are sufficiently definite to constitute protected activity for purposes of the STAA. See BSP Trans, 160 F.3d at 49.
As Stark points out, see Plaintiffs S/J Opposition/Remaining Claims at 17, this court had occasion to explore that question in Manske v. UPS Cartage Servs., Inc., 870 F.Supp.2d 185 (D.Me.2012). This court determined that a driver's reports to his employer constituted protected activity for purposes of the STAA when those reports were mandated pursuant to DOT regulations either because they concerned listed vehicle conditions or because they concerned issues that "would affect the safety of operation of the vehicle or result in its mechanical breakdown." Manske, 870 F.Supp.2d at 203 (citation and internal quotation marks omitted). The court observed: "Congress recognized that by performing ordinary and routine job duties, drivers are often best able to detect safety violations, and Congress therefore mandated reporting requirements." Id. at 204 (citation and internal quotation marks omitted).
Hartt contends that Manske is distinguishable in that, there, (i) the driver reported several "safety issues" on DIRs, orally on multiple occasions, and during meetings with management, (ii) he specifically stated that he was concerned with his own safety and that of the public, (iii) he believed that the issues that he reported constituted violations of the DOT regulations
Stark has the better argument. The Manske court did not base its holding that the driver in that case had engaged in protected activity on a finding that he had gone beyond normal channels and/or his normal job duties. The court deemed the STAA "a very different statute" from the federal Whistleblower Protection Act, emphasizing that, "in making the required report [pursuant to DOT regulations], 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." Manske, 870 F.Supp.2d at 204 (citation and internal quotation marks omitted). The court noted that conduct held by other courts to constitute protected activity pursuant to the STAA included a driver's completion of a DVIR [Equipment Daily Inspection and Condition Report]. See id. at 205. Moreover, to the extent that Hartt argues that an employee must report a specific violation of a specific DOT regulation, there is no indication that the driver in Manske did so. See id. at 189-95.
Hartt's second argument — that Stark did not engage in protected activity because there was no underlying violation of DOT regulations for him to report, see Defendant's S/J Motion/Remaining Claims at 20-21 — also is unavailing. Stark disputes Hartt's underlying premise that he never drove his truck when he knew it had a mechanical defect. See Plaintiff's S/J Opposition/Remaining Claims at 18; Defendant's SMF ¶ 36; Plaintiffs Opposing SMF ¶ 36.
Hartt fails to demonstrate its entitlement to summary judgment as to Stark's STAA claim on the basis that Stark did not engage in protected conduct.
Hartt next seeks summary judgment as to Stark's STAA and MWPA whistleblower claims on the bases that Stark cannot establish that retaliation for his reports of vehicle maintenance issues was a "but for" cause of his employment termination or that Hartt treated Stark less favorably than other similarly situated individuals because of his protected status. See Defendant's S/J Motion/Remaining Claims at 21-22. Stark rejoins that there
As a threshold matter, Hartt wrongly asserts that Stark must show that he was treated less favorably than other similarly situated individuals. Caselaw that it cites for that proposition, see Defendant's S/J Motion/Remaining Claims at 21-22, pertains to the showing necessary to make out a claim of discrimination on a disparate treatment theory, not a claim of retaliation, see Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 259, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Cham v. Station Operators, Inc., 685 F.3d 87, 97 (1st Cir. 2012); Garcia v. Bristol-Myers Squibb Co., 535 F.3d 23, 31 (1st Cir.2008); Thomas v. Digital Equip. Corp., 702 F.Supp. 22, 25 (D.Mass.1988), aff'd 880 F.2d 1486 (1st Cir.1989). As the First Circuit noted in the context of a Title VII anti-retaliation claim:
DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir.2008).
For purposes of establishing that his protected activity was a "but for" cause of his termination, Stark relies heavily on evidence that is set forth only in his opposing statement of material facts. See Plaintiff's S/J Opposition/Remaining Claims at 24-25; Plaintiff's Opposing SMF ¶¶ 28, 33-34, 81-84. Nonetheless, as his counsel suggested at oral argument, even disregarding that evidence (except for purposes of denial or qualification of specific statements by Hartt), there is sufficient evidence to raise a triable issue on the point.
There is no dispute that (i) Stark believes that Hartt did not timely repair two mechanical issues, involving an exhaust leak and a broken bunk heater, see Defendant's SMF ¶ 38; Plaintiff's Opposing SMF ¶ 38, (ii) he claims that he reported the exhaust leak two or three times, although he does not recall when he reported it or when it was fixed, see id. ¶ 40, and (iii) Hartt's Repair Order Detail form for Stark's truck shows that, at Stark's request, Hartt's Maintenance Department looked for an exhaust leak on December 8, 2010, and was unable to find one, although it did replace the cab filter, see id. ¶ 41. Stark disputes Hartt's statements that it did not permit its drivers to drive trucks with mechanical defects or other safety issues and that, for every problem reported by Stark, it immediately had its mechanics investigate the problem and, to the extent necessary, make repairs. See Defendant's SMF ¶¶ 28, 33; Plaintiff's Opposing SMF ¶¶ 28-33. Stark also qualifies Hartt's statement that Stark never went out on the road with his vehicle when he knew it had a mechanical defect, see Defendant's SMF ¶ 36, asserting that, when he reported mechanical issues from the road, Hartt required him to drive with them and finish his route rather than pay to have them repaired while he was on the road, see Plaintiff's Opposing SMF ¶ 36.
There is no dispute that Hartt fired Stark on December 17, 2010. See Defendant's SMF ¶ 85; Plaintiffs Opposing SMF ¶ 85. Hartt states that it did so because Stark abandoned his job by failing from December 14-16, 2010, either to return to work or to return his supervisor's calls, see Defendant's SMF ¶¶ 81-85; however, Stark denies this, see Plaintiff's Opposing SMF ¶ 81-85.
On this evidence, a reasonable fact-finder could infer that Hartt terminated Stark's employment because Stark reported
Hartt next seeks summary judgment as to Stark's claim that it discriminated against him because it regarded him as having a disability or a record of disability, in violation of the ADA. See Defendant's S/J Motion/Remaining Claims at 22-29.
"To prevail on a disability discrimination claim, a plaintiff must show by a preponderance of the evidence that he (1) has a disability within the meaning of the ADA; (2) is qualified to perform the essential functions of the job, with or without reasonable accommodations; and (3) was subject to an adverse employment action based in whole or part on his disability." Ramos-Echevarria v. Pichis, Inc., 659 F.3d 182, 186 (1st Cir.2011).
Hartt contends that Stark cannot prove any prong of the three-part test because (i) his neck injury was transitory and minor, (ii) he cannot affirmatively prove that he was physically qualified to drive a commercial motor vehicle under the DOT regulations, and (iii) he cannot prove that Hartt terminated his employment because of his alleged disability. See Defendant's S/J Motion/Remaining Claims at 22-29. Stark disputes all of those points. See Plaintiff's S/J Opposition/Remaining Claims at 6-15. For the reasons that follow, I conclude that Hartt fails to demonstrate its entitlement to summary judgment as to this claim.
A person is "disabled," for purposes of the ADA, if he or she has "a physical or mental impairment that substantially limits one or more major life activities of such individual;" has "a record of such an impairment;" or is "regarded as having such an impairment[.]" 42 U.S.C. § 12102(1). Pursuant to the ADA as amended by the ADA Amendments Act of 2008 ("ADAAA"), "[a]n individual meets the requirement of `being regarded as having such an impairment' if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." Id. § 12102(3)(A). However:
29 C.F.R. § 1630.15(f); see also 42 U.S.C. § 12102(3)(B) (the "regarded as" prong does "not apply to impairments that are transitory and minor").
Hartt argues that Stark's neck injury was transitory and minor given that he was out of work for only five days, from December 9 to 13, 2010, as a result of that injury, had been cleared to return to work at the time of his job termination, and has described the injury as a "medical instant" rather than a "medical condition." See Defendant's S/J Motion/Remaining Claims at 23.
To establish that he or she is a qualified individual with a disability, a plaintiff "must demonstrate, first, that [he or] she had the necessary skill, experience, education, and other job-related requirements for the . . . position and, second, that [he or] she was able to perform the essential functions of the position with or without reasonable accommodation." Richardson v. Friendly Ice Cream Corp., 594 F.3d 69, 75 (1st Cir.2010) (citations and internal quotation marks omitted). As Hartt points out, see Defendant's S/J Motion/Remaining Claims at 25, DOT regulations bar individuals from driving commercial
Id. § 391.41(b). Every two years, a physician must certify that the driver is physically qualified to operate a commercial motor vehicle. See id. § 391.45.
Hartt argues that Stark cannot affirmatively show that he was qualified as a commercial vehicle driver pursuant to DOT regulations because (i) he has designated no expert to so testify and is not qualified to offer lay testimony on that subject, (ii) Hartt's medical expert, Dr. Curtis, testified that several of the conditions listed in Stark's medical records would have disqualified him from receiving his DOT certificate on October 6, 2010, and (iii) Dr. Curtis also stated that Stark's failure to disclose his full medical and mental health history invalidated the DOT certificate that he obtained on that date. See Defendant's S/J Motion/Remaining Claims at 27-28. Hartt cites Seegert v. Monson Trucking, Inc., 717 F.Supp.2d 863, 873 (D.Minn.2010), for the proposition that, if a plaintiff failed to disclose known medical conditions during his DOT physical examination, he was not qualified for his position. See id. at 28. Hartt also cites several cases for the general proposition that an individual is not considered a "qualified" individual with a disability for ADA purposes if he or she is unable to meet DOT certification requirements. See id. at 26 (citing Bay v. Cassens Transport Co., 212 F.3d 969, 976 (7th Cir.2000); Ward v. Skinner, 943 F.2d 157 (1st Cir.1991); Tate v. NC Pepsi-Cola Bottling Co. of Charlotte, Inc., No. 3:09cv36, 2011 WL 3813175 (W.D.N.C. Aug. 29, 2011), recon. denied, 2011 WL 5101731 (W.D.N.C. Oct. 26, 2011), aff'd, 473 Fed.Appx. 245 (4th Cir. 2012); and Ortiz v. Elgin Sweeping Servs., Inc., No. 10 C 0936, 2011 WL 1930693 (N.D.Ill. May 17, 2011)).
Stark argues that the caselaw cited by Hartt is distinguishable and that he generates sufficient evidence to defeat its bid for summary judgment, including his own testimony regarding his fitness to perform commercial driving, the findings by CMCC during both his pre-employment and fitness-for-duty evaluations that he was fit for duty, and various concessions by Dr. Curtis. See Plaintiffs S/J Opposition/Remaining Claims at 8-11.
I conclude that there is a triable issue as to whether Stark was a "qualified" individual. Unlike the employees or job applicants in Bay, Ward, Tate, and Ortiz, Stark was issued a DOT certificate following his DOT examination on October 6, 2010. Compare Bay, 212 F.3d at 974; Ward, 943 F.2d at 159; Tate, 2011 WL 3813175, at *2; Ortiz, 2011 WL 1930693, at *1. In Seegert, as in this case, the employer contended that the employee was not a "qualified" individual with a disability for purposes of the ADA because he would not have obtained a DOT certification if he had
Stark also musters sufficient evidence to raise a triable issue as to whether he was qualified under the ADA. I have overruled Hartt's objection that Stark is not competent to testify as to whether he was able to perform the physical and mental functions of his commercial driving jobs. He avers that he was able to do so both prior to and during his employment with Hartt, but for three days during he took leave in December 2010. See Plaintiff's Additional SMF ¶¶ 3, 6, 8; Stark Aff. ¶¶ 3, 6, 9. Since being fired from Hartt, he has continued to work as a commercial truck driver. See Plaintiff's Additional SMF ¶ 10; Defendant's Reply SMF ¶ 10. His current job requires a CDL and a DOT card, and he maintains both. See id.
Moreover, Dr. Curtis acknowledges that Stark performed the essential job requirements during the course of the October 7, 2010, JPA, Plaintiff's Additional SMF ¶ 22; Defendant's Reply SMF ¶ 22, and has no disagreement with the conclusion by CMCC in December 2010 that Stark was fit for duty, id. ¶ 49. Hartt points out that Dr. Curtis testified that (i) a JPA is not the same as a DOT physical examination because it is a functional assessment and only one piece of the DOT examination, and (ii) Stark failed to disclose certain medical conditions during his DOT examination that would have influenced his ability to be certified to drive. See Defendant's Reply SMF ¶ 22; Curtis Dep. at 26, 105-08. Yet, Dr. Curtis admits that he does not know whether there is anything in terms of Stark's medical conditions that would have rendered him, in Dr. Curtis's opinion, unsafe to drive. See Plaintiffs Additional SMF ¶ 38; Defendant's Reply SMF ¶ 38. While Dr. Curtis would have disqualified Stark because he falsified his medical history and his medical conditions may have disqualified him from driving a commercial motor vehicle, Defendant's SMF ¶ 62; Exh. 3 to Curtis Dep. at 8-9, the next step would have been to be reassessed by a DOT examiner to determine whether he was able to get another DOT card, Plaintiff's Additional SMF ¶ 52; Defendant's Reply SMF ¶ 52.
This evidence, taken as a whole, raises a triable issue as to whether Stark was a "qualified" individual as of December 6, 2010, defeating Hartt's bid for summary judgment on that prong.
Hartt finally seeks summary judgment as to Stark's claim of unlawful discrimination in violation of the ADA on the basis that he fails to generate a triable issue on causation. See Defendant's S/J Motion/Remaining Claims at 28-29.
Hartt argues that (i) Stark has "not produced any facts which give rise to an inference of discrimination based on disability" and (ii) "even if Hartt did terminate [Stark's] employment because of his perceived or recorded medical conditions or disabilities, which Hartt adamantly denies, it was not unlawful because these issues disqualified him as a commercial vehicle driver under the DOT regulations." Id. In response, Stark contends that he produced ample evidence, both direct and indirect, that he was fired based on a
Hartt replies that Stark's "lengthy pretext argument misses the point[,]" Hartt having argued that "Stark cannot prove causation because he ultimately must prove that Hartt terminated his employment for an `unlawful reason[,]'" and "even if Hartt did terminate [Stark's] employment because of his perceived medical conditions, or because he failed to disclose these medical conditions on his DOT Physical Examination Report, which Hartt adamantly denies, it was not unlawful because these issues disqualified him as a commercial vehicle driver under the DOT regulations." Defendant's S/J Reply/Remaining Claims at 7. Hartt theorizes, "Perhaps because [Stark] realizes that this is true, he did not respond to Hartt's argument in this regard." Id.
To the contrary, as discussed above, Stark argues persuasively that there is a triable issue whether he was qualified as a commercial vehicle driver pursuant to DOT regulations. While he made that argument in the context of contending that he was a qualified individual with a disability, see Plaintiff's S/J Opposition/Remaining Claims at 8-11, it applies with equal force here.
Turning to the issue of causation, Stark's "lengthy pretext argument" relies heavily on citation to facts that are set forth solely in his opposing statement of material facts. See Plaintiffs S/J Opposition/Remaining Claims at 11-15. Nonetheless, as his counsel suggested at oral argument, even disregarding that evidence (except for purposes of denial or qualification of specific statements by Hartt), there is sufficient evidence to raise a triable issue as to whether Hartt terminated Stark based on a perceived disability.
This includes evidence that:
1. Hartt seemingly had no issues with Stark as of December 6, 2010. As of that date, Wiles was willing to grant Stark's request to switch positions from an OTR driver to a regional driver, see Defendant's SMF ¶ 25; Plaintiff's Opposing SMF ¶ 25, and Parisien had no issues with Stark during the period of time between his orientation and December 6, 2010, see Plaintiff's Additional SMF ¶ 7; Defendant's Reply SMF ¶ 7.
2. On December 9, 2010, Stark informed Cote that he was planning to go see his VA doctor. See Defendant's SMF ¶ 68; Cote Dep. at 50. On December 10, 2010, Stark provided Hartt with a doctor's note stating that he would be out of work from December 9-11, 2010. See Defendant's SMF ¶ 73; Plaintiff's Opposing SMF ¶ 73. Rogers scheduled a fitness-for-duty evaluation of Stark for December 13, 2010, at CMCC. See id.
3. Hartt only refers drivers for fitness-for-duty evaluations if it concludes that the condition in question would be a "disqualifier" for their DOT card and to make sure that the employee is not going to injure himself or herself. See Plaintiffs Additional SMF ¶ 63; Rogers Dep. at 34. Rogers required that Stark have a fitness-for-duty evaluation because she alleges that he disclosed that he had a herniated disk, and gel was leaking. See Plaintiffs Additional SMF ¶ 64; Defendant's Reply SMF ¶ 64.
4. On December 13, 2010, CMCC faxed Rogers a letter stating that Stark was cleared to return to work but noting that Stark (i) believed that he had aggravated a previous neck injury of a protruding disk when he was driving his vehicle in the snow for three days and (ii) never mentioned any cervical injuries at his original pre-employment assessment. See Defendant's SMF ¶ 75; Plaintiff's Opposing SMF ¶ 75; Plaintiff's Additional SMF ¶ 28; Defendant's Reply SMF ¶ 28. Rogers and
5. Two days later, on December 17, 2010, Wiles terminated Stark's employment. Defendant's SMF ¶ 85; Wiles Dep. at 60-61. Hartt states that Wiles did so because Stark abandoned his job by failing to return to work or return Wiles' calls from December 14-16, 2010, see Defendant's SMF ¶¶ 81-85; but Stark disputes this, see Plaintiffs Opposing SMF ¶¶ 81-85.
A reasonable fact-finder crediting Stark's evidence and drawing inferences in his favor could conclude that Hartt terminated his employment based on a perceived disability, given that, (i) as of December 6, 2010, Hartt evidently had no issues with Stark, (ii) Stark took a three-day medical leave of absence commencing on December 9, 2010, (iii) although, on December 13, 2010, Stark was medically cleared to return to duty, Rogers and Murphy convened a conference call with Brainerd on December 15, 2010, during which they discussed Stark's failure to disclose his neck injury, including the possible consequence of termination of employment, (iv) Stark was fired two days later, and (v) Stark disputes Hartt's explanation for his firing. See, e.g., Zapata-Matos, 277 F.3d at 45; Willinghan, 847 F.Supp.2d at 190.
Stark having confirmed that he does not press his claim of disability discrimination based on having a record of disability, summary judgment should be entered as to that claim. Hartt otherwise fails to demonstrate that it is entitled to summary judgment on Stark's claim of disability discrimination.
Hartt finally seeks summary judgment on Stark's bid for punitive damages. See Defendant's S/J Motion/Remaining Claims at 29-30. It argues that Stark cannot meet the applicable standard for purposes of both his ADA and MHRA claims of demonstrating that Hartt engaged in discriminatory conduct in the face of a perceived risk (i.e., almost certainly knowing) that it was violating the law or that it acted with malice or reckless indifference. See id. at 30; see also, e.g., 42 U.S.C. § 1981a(a)(2) & (b)(1) (complaining party may recover punitive damages under the ADA "if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual"); 5 M.R.S.A. § 4613(2)(B)(8)(c) (complaining party may recover punitive damages under the MHRA "if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the rights of an aggrieved individual protected by this Act"); Kolstad v. American Dental Ass'n, 527 U.S. 526, 536, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999) (pursuant to 42 U.S.C. § 1981a, "an employer must at least discriminate in the face of a perceived risk that its actions will violate federal law to be liable in punitive damages").
Hartt adds that, in any event, it meets the requisites of the affirmative defense recognized in Kolstad for employers who make good-faith efforts to comply with the requirements of antidiscrimination laws. See Defendant's S/J Motion/Remaining Claims at 30; Kolstad, 527 U.S. at 544-45, 119 S.Ct. 2118.
As Stark further contends, see Plaintiff's S/J Opposition/Remaining Claims at 26-27, Hartt fails to demonstrate its entitlement to the good-faith defense as a matter of law. Hartt points to the facts that it had an established policy prohibiting unlawful discrimination and provided training regarding that policy to all of its employees during driver orientation, including to Stark. See Defendant's S/J Motion/Remaining Claims at 30; Defendant's SMF ¶¶ 4-9. However, the First Circuit, applying Kolstad, has held that "a written statement, without more, is insufficient to insulate an employer from punitive damages liability[,]" and "[a] defendant must also show that efforts have been made to implement its anti-discrimination policy, through education of its employees and active enforcement of its mandate." Romano v. U-Haul Int'l, 233 F.3d 655, 670 (1st Cir.2000).
Hartt, like the employer in Romano, "did not put forth evidence of an active mechanism for renewing employees' awareness of the policies through either specific education programs or periodic re-dissemination or revision of [its] written materials[,]" that "supervisors were trained to prevent discrimination from occurring[,]" or that it could point to "examples in which [its] anti-discrimination policies were successfully followed." Id.
Hartt fails to demonstrate that it is entitled to summary judgment as to Stark's request for punitive damages.
For the reasons that follow, I
Dated this 31st day of March, 2014.
