BROWN v. TOWN OF SOUTH THOMASTON et al

Filing 41

REPORT AND RECOMMENDED DECISION re 34 MOTION for Summary Judgment filed by PENELOPE ALLEY, TOWN OF SOUTH THOMASTON, JEFFREY NORTHGRAVES, JOHN SPEAR Objections to R&R due by 7/17/2009 By MAGISTRATE JUDGE JOHN H. RICH III. (lrc)

UNITED STATES DISTRICT COURT DISTRICT OF MAINE WAYNE BROWN, ) ) Plaintiff ) v. ) ) TOWN OF SOUTH THOMASTON, et al., ) ) Defendants )

Civil No. 08-308-P-H

MEMORANDUM DECISION ON MOTION TO STRIKE AND RECOMMENDED DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT In this employment action, the Town of South Thomaston ("South Thomaston" or "Town"), John Spear, Jeffrey Northgraves, and Penelope Alley move for summary judgment as to both counts of former South Thomaston Fire Chief Wayne Browns first amended complaint against them, alleging violations of the Maine Whistleblowers Protection Act ("MWPA"), 26 M.R.S.A. §§ 831-40, and of Browns federal constitutional rights to free speech and access to the courts. See Defendants Motion for Summary Judgment ("S/J Motion") (Docket No. 22) at 1; First Amended Complaint ("Amended Complaint") (Docket No. 4) ¶¶ 19-24.1 The defendants also move to strike a corrected responsive statement of material facts ("SMF") and supporting documents filed by Brown. See Defendants Motion Regarding Late-Filed Pleadings ("Motion To Strike") (Docket No. 38). For the reasons that follow, I grant in part and deny in part the Motion To Strike and recommend that the court grant the defendants motion for summary judgment as to Count II but deny it as to Count I.
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I have cited to sealed versions of the relevant papers. A redacted, public version of the defendants motion for summary judgment is contained at Docket No. 34.

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I. Summary Judgment Standards A. Federal Rule of Civil Procedure 56 Summary judgment is appropriate only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); 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 non-moving party." Rodríguez-Rivera v. Federico Trilla Reg'l Hosp. of Carolina, 532 F.3d 28, 30 (1st Cir. 2008) (quoting Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008)). "A fact is material if it has the potential of determining the outcome of the litigation." Id. (quoting Maymi v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008)). The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving partys case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (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(e). "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).

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B. Local Rule 56 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 partys 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 partys 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 nonmovants 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,

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213-14 (1st Cir. 2008). II. Factual Background A. Motion To Strike Before setting forth the properly-considered facts relevant to the resolution of the S/J Motion, I turn first to the defendants Motion To Strike. Browns deadline for filing his response to the defendants motion for summary judgment, following grant of a motion to extend time, was April 21, 2009. See Docket No. 16. On that day he filed both a memorandum of law and a responsive SMF, accompanied by two affidavits. See Docket Nos. 25-27. The defendants deadline for filing a reply brief and reply SMF was May 4. See Docket No. 25. On May 1, without leave of court, Brown filed a "corrected" responsive SMF accompanied by several additional evidentiary documents. See Docket Nos. 30-33. On May 4, the defendants filed their reply brief and reply SMF. See Docket Nos. 36-37. The following day, May 5, the defendants filed this Motion To Strike, asking the court to disregard Browns corrected responsive SMF and all evidentiary documents filed therewith save for redacted versions of the two affidavits timely filed on April 21. See Motion To Strike at 1-2, 4-5. The defendants sought this relief on grounds that (i) Browns May 1 filings were untimely, (ii) he failed to file a motion pursuant to Fed. R. Civ. P. 6 to further enlarge his deadline, (iii) he made no showing of excusable neglect, and (iv) the courts consideration of the corrected responsive SMF and newly-filed supporting documents would prejudice the defendants. See id. at 1-5. In support of the final point, the defendants represented that their counsel did not even become aware of the corrected and new documents until May 3, when she had already

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substantially completed the reply brief and reply SMF that were due the following day, and that she therefore was placed in the difficult position of either choosing to file a motion for enlargement of time to file those documents, despite the fact that Brown had neglected to do so himself, or relying on Browns original, timely filing. See id. at 3. She chose to do the latter. See id. Brown opposes the Motion To Strike, stating that (i) the defendants had prior access to all of the evidentiary materials filed on May 1 save for an affidavit of counsel that merely authenticates documents that were exchanged during discovery, (ii) most of the changes to the responsive SMF were stylistic, the only substantive changes being "primarily technical corrections to incorrect or missing cites to evidentiary materials already cited elsewhere[,]" (iii) Brown provided the defendants counsel a red-lined version of the changes made in the corrected responsive SMF and offered to consent to any extension that the defendants might want, but their counsel refused, (iv) the defendants are not unfairly prejudiced by any changes to Browns opposing statement of material facts because they have no right under Local Rule 56 to reply to such facts anyway, (v) the defendants are not unfairly prejudiced by any changes to Browns additional statement of material facts because those changes are "primarily technical corrections" and because the defendants counsel refused the offer to consent to an extension for the reply materials, and (vi) violations by the defendants of the local rules, including their failure to file short and concise statements of material facts, contributed in the first place to the need to file a corrected responsive SMF. See Plaintiffs Objection to Defendants Motion Concerning May 1, 2009 Filings of Plaintiff (Docket No. 40) at 1-4. After due consideration of both sides arguments, I GRANT the Motion To Strike insofar as it concerns the corrected responsive SMF and DENY it insofar as it concerns accompanying

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evidentiary documents.

"Under the excusable neglect rubric, courts are permitted, when Bennett v. City of

appropriate, to accept late filings caused by inadvertence or mistake."

Holyoke, 362 F.3d 1, 4 (1st Cir. 2004). "A trial courts determination as to whether an instance of neglect is (or is not) excusable has a significant equitable component and must give due regard to the totality of the relevant circumstances surrounding the movants lapse." Id. at 5. In the circumstances, I decline to take cognizance of the corrected responsive SMF. As early as March 23, Brown requested that the defendants narrow their SMF. See Docket No. 16. I directed the parties to contact the court before April 3 if that issue and/or a separate dispute regarding document redaction remained unresolved. See id. In addition, I granted the plaintiffs oral motion for a two-week extension of his deadline to file his opposition to the S/J Motion. See id. While the parties did contact the court for a further teleconference, they did so in regard to the redaction issue. See Docket No. 19. No further request was made by the plaintiff either to narrow the defendants SMF or for additional time to file his opposition. See id. On May 1, 10 days after timely filing his opposition, and without request for leave of court or the proffer of any excuse, Brown filed his corrected responsive SMF, just three days prior to the defendants deadline for filing their reply SMF. While a number of changes were stylistic, others were substantive. The defendants plausibly complain that they would have had to invest substantial additional time to alter their reply SMF to address the corrected responsive SMF. The equities in these circumstances tip in favor of the defendants.2 I reach the opposite conclusion with respect to the belatedly-tendered evidentiary documents. Apart from Browns counsels affidavit, which merely authenticates previously exchanged documents, none of these materials was new to the defendants.
2

Taking these

As it happens, my declination to take into consideration the corrected responsive SMF is not outcomedeterminative.

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materials into consideration, to the extent cited in the original, uncorrected SMF, benefits the court and causes no prejudice to the defendants. B. Relevant Facts The parties statements of material facts, credited to the extent either admitted or supported by record citations in accordance with Local Rule 56, with disputes in cognizable facts resolved in favor of the plaintiff as nonmovant, reveal the following facts relevant to this decision. 1. The Parties South Thomaston, Maine, is a small coastal municipality in Knox County, Maine. Defendants Statement of Material Facts ("Defendants SMF") (Docket No. 24) ¶ 1; Response to Defendant[s] Alleged Facts ("Plaintiffs Opposing SMF"), commencing on page 1 of Plaintiffs Response to Defendant[s] Statement of Material Facts ("Plaintiffs SMF Response") (Docket No. 27), ¶ 1. According to the most recent census, its population in 2000 was 1,416. Id. South Thomaston has a town meeting/selectmen form of government. Id. ¶ 2. The town meeting traditionally occurs on the last Tuesday in March. Id. The selectmen serve as the executive arm of government, administering, enforcing, and carrying out the municipal functions of the town as well as the decisions made at the town meeting. Id. Selectmen receive a stipend of $1,290 per year for performance of their official duties. Id. ¶ 3. Each selectman spends approximately 25 hours per month performing those duties. Id. Alley has been a selectman for the Town since 1999. Id. ¶ 4. Northgraves was first elected to the position of selectman by the citizens of South Thomaston in midsummer 2004 and has served in that capacity since. Id. ¶ 5. He also served the Town as a volunteer firefighter in the South Thomaston Fire Department ("Fire Department") from late 2001 until early 2005. Id.

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He took a leave of absence from the Fire Department because he felt that he would have to recuse himself from any discussions about Fire Department issues if he continued to fill both roles. Id. Spear was a selectman for the Town from 2003 until his term expired on March 31, 2009. Id. ¶ 6. He also had previously served for a three-year term beginning in the late 1990s. Id. Brown had a long and excellent work record for the Fire Department, for which he worked for 42 years. Plaintiffs Statement of Additional Material Facts ("Plaintiffs Additional SMF"), commencing on page 95 of Plaintiffs SMF Response, ¶ 1; Defendants Reply Statement of Material Facts ("Defendants Reply SMF") (Docket No. 37) ¶ 1. Browns father served as fire chief for many years. Defendants SMF ¶ 7; Deposition of Wayne A. Brown ("Brown Dep."), attached to Defendants SMF, at 165. Brown joined the Fire Department at the age of 16. Plaintiffs Additional SMF ¶ 2; Defendants Reply SMF ¶ 2. He served as its chief for 16 years and as its deputy chief for many years before that. Id. ¶ 3. Brown volunteered at many town fundraisers, including dances, food booths at fairs, and rummage sales. Id. ¶ 4. Brown also spent many hours writing grant applications for the Fire Department and obtained in excess of $150,000 for equipment. Id. ¶ 5. He also was successful in obtaining a $100,000 grant from a local company toward the purchase of a new $230,000 fire truck in 2003. Id. ¶ 6. Brown spent many hours raising money for the Fire Department to supplement its budget to help pay for much needed equipment without burdening the taxpayers. Id. ¶ 7. Although the Towns personnel policy requires progressive discipline, Brown never received any notice prior to 2006 of dissatisfaction with his performance or conduct. Plaintiffs Additional SMF ¶ 8; Declaration of Wayne A. Brown ("Brown Decl."), attached to Plaintiffs

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SMF Response, ¶ 9.3 2. Brown's Denial of 2002 Request To Move to Fire Police Position In 2002, A.G., a Fire Department member who had sustained a back injury, requested to be moved from a firefighter position to a fire police position. Defendants SMF ¶ 8; Plaintiffs Opposing SMF ¶ 8. Brown denied that request. Id. The June 2002 letter that Brown received from A.G. stated: "I am writing this letter to request to be transferred to Fire Police. I have done a lot for this department and the fire police position like driving and operating the fire apparatus does meet my restrictions." Id. ¶ 9. Brown informed A.G. that he would not transfer him to the fire police position because the department did not need additional personnel in that position. Id. In March 2003, A.G. and the Town reached a mediated settlement agreement of a 2002 Maine Human Rights Commission ("MHRC") charge of discrimination that A.G. filed based on Browns denial of his request to transfer to the fire police position. Id. ¶ 10. Without even consulting with the fire chief, in about October 2002, the selectmen entered into an agreement with A.G. to allow him to serve as a firefighter with the right to self-limit his duties. Plaintiffs Additional SMF ¶ 16; Defendants Reply SMF ¶ 16. It was not appropriate for the selectmen to reach an agreement with a member of the Fire Department about the terms of his or her employment without consulting the fire chief. Id. ¶ 17. Brown disagreed with the settlement agreement because he "wasnt involved with the settlement whatsoever." Defendants SMF ¶ 11; Plaintiffs Opposing SMF ¶ 11.4
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The defendants deny this, see Defendants Reply SMF ¶ 8; however, I view the evidence in the light most favorable to Brown as nonmovant. 4 Brown qualifies this statement, asserting that he disagreed with his lack of involvement in the settlement and felt that he should have been consulted, in his capacity as fire chief, about the safety issues it raised. See Plaintiffs Opposing SMF ¶ 11; Brown Decl. ¶ 47. He adds that the settlement placed an employee with serious medical disabilities in a firefighter position with the right to self-limit his duties without any safeguards to protect the firefighter, other members of the Fire Department, or the public from the potential safety hazards this raised. Plaintiffs Opposing SMF ¶ 11; Brown Decl. ¶ 48.

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Brown assumes that, on about March 6, 2003, in accordance with paragraph 3 of the settlement agreement, he received a report from A.G.s doctor. Id. ¶ 12.5 This document indicated that A.G. had "reached maximum medical improvement" and was restricted from "prolonged standing." Plaintiffs Additional SMF ¶ 9; Defendants Reply SMF ¶ 9.6 Neither A.G. nor his physician ever provided Brown with documentation releasing A.G. from this medical restriction or modifying it in any way. Id. ¶ 10.7 Brown believed that A.G. remained restricted from prolonged standing throughout Browns service as chief of the Fire Department because the documentation did not indicate that this restriction was temporary but instead stated that it was based on A.G.s reaching maximum medical improvement. Plaintiffs Additional SMF ¶ 11; Brown Decl. ¶ 13. Neither A.G. nor his physician ever indicated to Brown that the restriction on prolonged standing was no longer in effect. Plaintiffs Additional SMF ¶ 12; Brown Decl. ¶ 14.8 On June 14, 2003, Brown sent A.G. a letter stating that he had to set up a fitness for duty examination with Health Connections, an organization that evaluates the fitness for duty of public safety personnel. Defendants SMF ¶ 13; Plaintiffs Opposing SMF ¶ 13. Health

Connections completed a fitness for duty evaluation dated June 23, 2003, ("2003 Evaluation") stating that A.G. "may drive fire trucks, operate pumps, [and] assist with air bottle change-out," which were basically the functions that he was performing at that time. Defendants SMF ¶ 14;

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My recitation incorporates Browns qualification to the extent that it is supported by the citations given. The defendants qualify this statement, see Defendants Reply SMF ¶ 9, asserting, in cognizable part, that three months after A.G.s doctor made the quoted statements, a health care provider selected by Brown evaluated A.G.s fitness for duty to work as a firefighter and imposed no standing restrictions, see Brown Dep. at 231-32; Exh. 20 to Brown Dep. ("Brown Dep. Exh. 20"), attached to Defendants SMF. 7 The defendants purport to qualify this statement, see Defendants Reply SMF ¶ 10, but their qualification is not supported by the citation given and is on that basis disregarded. 8 The defendants deny paragraphs 11 and 12, see Defendants Reply SMF ¶¶ 11-12; however, I view the evidence in the light most favorable to Brown as nonmovant.

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Brown Dep. Exh. 20; Deposition of Jeffrey Northgraves ("Northgraves Dep."), attached to Defendants SMF, at 149. The 2003 Evaluation prohibited A.G. from climbing ladders or working with shovels, rakes, or axes, limited him to performing minimally, for no more than nine minutes per hour, the activities of pushing, pulling, twisting, bending, kneeling, crawling, stooping, and climbing on or off the truck, and limited him to lifting or carrying no more than 20 pounds for no more than 21 minutes an hour and working overhead for no more than 21 minutes an hour. Plaintiffs Additional SMF ¶ 13; Defendants Reply SMF ¶ 13.9 The list of restrictions contained in the 2003 Evaluation remained the same for the rest of the time that Brown was fire chief. Plaintiffs Additional SMF ¶ 14; Brown Dep. at 238.10 On August 6, 2003, Brown informed A.G. that he was not to report to fire calls or drills "until you are cleared for full duty as a firefighter." Defendants SMF ¶ 15; Plaintiffs Opposing SMF ¶ 15. 3. Brown's Denial of 2005 Request To Move to Fire Police Position As of 2005, Brown and other Fire Department members, including Bryan Calderwood and Colin Grierson, then both Fire Department captains, remained concerned that maintaining A.G. in a firefighter position posed a safety risk. Defendants SMF ¶¶ 18, 26-30; Plaintiffs Opposing SMF ¶¶ 18, 26-30; Plaintiffs Additional SMF ¶ 29; Declaration of Colin Grierson ("Grierson Decl."), attached to Plaintiffs SMF Response, ¶¶ 2-3. Relying on the 2003 Evaluation, Brown concluded that it was unsafe for A.G. to perform the firefighter duties in December 2005 because he "couldnt do the duties of a firefighter. He
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The defendants qualify this statement, see Defendants Reply SMF ¶ 13, asserting that the June 2003 evaluation imposed no restriction at all on standing, see Brown Dep. Exh. 20. 10 The defendants deny this, see Defendants Reply SMF ¶ 14; however, I view the evidence in the light most favorable to Brown as nonmovant.

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couldnt climb a ladder, he couldnt wear an air pack. I believe somewhere[] it says not to use axes and shovels, and those are all equipment and things thats necessary to do the duties of a firefighter." Defendants SMF ¶ 18; Plaintiffs Opposing SMF ¶ 18. Brown felt that it was dangerous for both A.G. and other firefighters to have A.G. in the firefighter position because he could fall off a ladder and because the weight of an air pack exceeded the June 23, 2003, weight restriction. Id. ¶ 19. He also felt that A.G.s physical limitations made it difficult for him to "work as a team." Id. The "worst case scenario" as a result of A.G.s inability to perform firefighter duties at the scene of a fire was that "somebody is going to get hurt." Id. ¶ 20. If A.G.s physical limitations had been removed, Brown would have allowed him to come back to duty as a firefighter notwithstanding the allegations A.G. made against Brown. Plaintiffs Additional SMF ¶ 34; Defendants Reply SMF ¶ 34. The Town was aware that, after the March 3, 2003, settlement agreement, Brown was concerned that A.G.s employment as a firefighter could result in injury to A.G. or another firefighter, given his medical condition. Id. ¶ 35. Brown reported to the selectmen that it was a safety risk to allow A.G. to remain in the firefighter position and that he did not think A.G. could safely perform the duties of a firefighter without creating a likely risk of serious injury to A.G. or others. Id. ¶ 36. At times after the March 3, 2003, settlement agreement, Brown directed A.G. not to participate in fire calls or drills because of his concerns about A.G.s ability to safely perform the duties of a firefighter. Id. ¶ 37. As of January 20, 2006, the Town considered it to be a legitimate concern that A.G.s medical restrictions prohibited him from performing the essential functions of a firefighter and conveyed this to the MHRC. Id. ¶ 39. In a letter to the MHRC dated January 20, 2006, the

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Town admitted that it was aware that Brown had indicated that A.G. was a safety concern as a firefighter and that Brown had at times directed him not to participate in fire calls or drills because A.G. was a safety concern as a firefighter. Id. ¶ 40. In 2005, A.G. again requested to be moved from a firefighter position to a fire police position, and Brown again denied the request. Defendants SMF ¶ 16; Plaintiffs Opposing SMF ¶ 16. Brown reported to the selectmen that it would be a safety risk to allow A.G. to work as a fire police officer and that he did not think A.G. could safely perform the duties of a fire police officer without creating a likely risk of serious injury to A.G. or others. Plaintiffs Additional SMF ¶ 57; Defendants Reply SMF ¶ 57. Brown agrees that keeping A.G. in a firefighter position did not pose less of a safety risk than moving him to the fire police position. Defendants SMF ¶ 22; Plaintiffs Opposing SMF ¶ 22. Brown believes that transferring A.G. from the firefighter position to the fire police position presented "the same risk." Id. ¶ 23.11 A fire police officer directs traffic and performs other critical safety functions at the scene of a fire and takes care of equipment following the fire, including the removal of heavy fire hoses. Plaintiffs Additional SMF ¶ 41; Defendants Reply SMF ¶ 41. This is an important position that protects the safety of the public and the firefighters alike. Id. The position is designed to assist the fire chief in carrying out his duty to suppress disorder and tumult at the scene of a fire and generally to direct all operations to prevent further destruction and damage. Id.12 In order to meet the requirements of the Towns written job description in effect at the
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Calderwoods concern in 2005, when he was a Fire Department captain, that A.G. could not safely perform firefighter duties would have been alleviated if A.G. had been transferred from a firefighter position to a fire police position. Defendants SMF ¶ 30; Plaintiffs Opposing SMF ¶ 30. 12 The defendants qualify this statement, see Defendants Reply SMF ¶ 41, asserting that Browns declaration is consistent with the written job description but not with the actual practices of the Fire Department in 2005 and 2006, see Deposition of Bryan Calderwood ("Calderwood Dep."), attached to Defendants SMF, at 39-40, 58-61.

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time for the fire police officer position, an employee must at a minimum be able to stand continuously for extended periods of time directing traffic and performing crowd control functions and clean up fire scenes, including moving debris and fire hoses, which weigh 40 pounds or more. Id. ¶ 19.13 Both fire police members of the Fire Department were able to perform all of the essential functions of the fire police position described in the written job description. Id. ¶ 20.14 Based on his medical restrictions, A.G. could not perform all of the essential functions of the fire police position set forth in the written job description. Id. ¶ 21. In order to perform the position of fire police officer without endangering other fire department employees or the public, an employee would at a minimum have to be able to move fire hoses, which weigh considerably more than 20 pounds, and stand continuously for extended periods of time directing traffic and performing crowd control functions. Id. ¶ 25.15 The Fire Departments fire police officers have to stand for extended periods of time. Plaintiffs Additional SMF ¶ 47; Grierson Decl. ¶ 7. A fire police officer sometimes had to stand and direct traffic for as many as five consecutive hours. Plaintiffs Additional SMF ¶ 48; Grierson Decl. ¶ 7.16 Both of the Fire Departments longtime fire police officers, Elbert Burton and George Kibitz, stood continuously for an hour or longer in order to perform their duties as
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The defendants qualify this statement, see Defendants Reply SMF ¶ 19, asserting that Browns declaration is consistent with the written job description but not with the actual practices of the Fire Department in 2005 and 2006, see Calderwood Dep. at 39-40, 58-61. 14 The defendants qualify this statement, see Defendants Reply SMF ¶ 20, asserting that Brown did not require the existing fire police to undergo a fitness for duty evaluation and concluded that they were able to perform the essential functions of the job because they were doing it, did not have any objections, and did not ask for any accommodations, see Brown Dep. at 183, yet Brown did not allow A.G. to try the fire police job and see if he could do it without objections or accommodations, see id. at 179. 15 The defendants qualify this statement, see Defendants Reply SMF ¶ 25, asserting that Browns declaration is consistent with the written job description but not with the actual practices of the Fire Department in 2005 and 2006, see Calderwood Dep. at 39-40, 58-61. 16 The defendants deny paragraphs 47 and 48, see Defendants Reply SMF ¶¶ 47-48; however, I view the evidence in the light most favorable to Brown as nonmovant.

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fire police officers. Plaintiffs Additional SMF ¶ 49; Defendants Reply SMF ¶ 49. 17 Fire hoses can weigh up to and over 40 pounds. Id. ¶ 50. A.G. was medically restricted from lifting more than 20 pounds during the 2005-2006 timeframe. Id. During Browns service as fire chief, an inability to lift fire hoses weighing 40 pounds made it impossible to perform the fire police officer job. Id.18 Spear equated the level of risk involved in putting A.G. in the fire police position with "being shot in the head with a . . . BB gun." Id. ¶ 52. A.G.s medical restrictions as communicated to Brown by medical professionals who evaluated him prevented A.G. from standing for prolonged periods and lifting more than 20 pounds. Plaintiffs Additional SMF ¶ 42; Brown Dep. Exh. 20; Exh. 48 to Brown Dep., attached to Defendants SMF.19 Brown expressed to Grierson at the time that a serious injury would likely occur if A.G. was placed in the fire police position. Plaintiffs Additional SMF ¶ 43; Grierson Decl. ¶ 6. Brown expressed concern that A.G.s medical restrictions did not allow him to stand for hours at a time, something a fire police officer must be able to do in order to perform the position safely. Plaintiffs Additional SMF ¶ 44; Grierson Decl. ¶ 6.20 A.G.s inability to stand for prolonged periods exposed A.G., other Fire Department members, and the public to serious injury if traffic was not controlled at the fire scene, if a firefighter or firefighters had to be called away from firefighting duties to control traffic, or if A.G. exceeded his medical limitations and injured himself. Plaintiffs Additional SMF ¶ 45;
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I omit the defendants purported qualification of this statement, see Defendants Reply SMF ¶ 49, which consists of argument rather than fact. 18 The defendants qualify paragraph 50, see Defendants Reply SMF ¶ 50, asserting that Browns declaration is consistent with the written job description but not with the actual practices of the Fire Department in 2005 and 2006, see Calderwood Dep. at 39-40, 58-61. 19 The defendants deny this, see Defendants Reply SMF ¶ 42; however, I view the evidence in the light most favorable to Brown as nonmovant. 20 The defendants objections to paragraphs 43 and 44 on the ground that they offer inadmissible hearsay, see Defendants Reply SMF ¶¶ 43-44, are overruled. I construe the statements as being offered not for the truth of the matter asserted by Brown to Grierson, but rather for the fact that Brown expressed certain concerns, however wellfounded, at a certain point in time.

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Brown Decl. ¶ 25.21 Brown was concerned that A.G.s inability to perform this function of the fire police position would likely lead to a serious injury and that, as fire chief, he could be personally liable for failing to prevent such an injury. Plaintiffs Additional SMF ¶ 46; Grierson Decl. ¶ 6.22 In an emergency situation, if a fire police officer could not perform a duty such as standing to direct traffic, in order to rotate him out either a firefighter would have to be called away from the fire to perform that duty for him or traffic would not be directed. Plaintiffs Additional SMF ¶ 55; Brown Decl. ¶ 29. In either case, both the public and other Fire

Department employees would be placed at risk of serious injury. Id. In an emergency situation involving interior firefighting, if a fire police officer could not perform a duty such as standing to direct traffic, multiple firefighters would have to be called out of a burning building or away from firefighting duties so that one of them could relieve the fire police officer. Plaintiffs Additional SMF ¶ 56; Brown Decl. ¶ 30.23 The fire chief in South Thomaston legitimately was concerned about the safety of firefighters. Plaintiffs Additional SMF ¶ 23; Defendants Reply SMF ¶ 23. Ensuring the safety of the Fire Departments operations probably was, and should have been, the fire chiefs top
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The defendants objection to this statement on the ground that Browns declaration contains insufficient detail to permit the court to evaluate whether a genuine issue of fact exists, see Defendants Reply SMF ¶ 45, is overruled. The statement contains sufficient detail to qualify as a statement of fact rather than a conclusory assertion. Compare, e.g., Boyajian v. Starbucks Corp., 587 F. Supp.2d 295, 301 (D. Me. 2008) ("Even in employment discrimination cases where elusive concepts such as motive or intent are at issue, summary judgment is appropriate if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculations.") (citation and internal quotation marks omitted). 22 The defendants objection to this statement on the ground that it offers inadmissible hearsay, see Defendants Reply SMF ¶ 46, is overruled. I construe the statement as being offered not for the truth of the matter asserted by Brown to Grierson, but rather for the fact that Brown held certain beliefs, regardless of whether accurate or not, at a certain point in time. 23 The defendants objections to paragraphs 55 and 56 on the ground that Browns declaration contains insufficient detail to permit the court to evaluate whether a genuine issue of fact exists, see Defendants Reply SMF ¶¶ 55-56, is overruled. The statements contain sufficient detail to qualify as statements of fact rather than as conclusory assertions. Compare, e.g., Boyajian, 587 F. Supp.2d at 301.

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duty. Id. Brown determined whether A.G. could safely perform the firefighter or fire police positions by comparing A.G.s physical restrictions, as they were communicated to Brown by medical professionals who had evaluated him, with the essential functions required to safely perform those positions. Plaintiffs Additional SMF ¶ 24; Brown Decl. ¶ 19. Brown did not rely on Health Connections evaluation of whether A.G. was fit for duty as a firefighter in determining whether he was fit for duty as a fire police officer. Plaintiffs Additional SMF ¶ 26; Brown Decl. ¶ 15.24 If a fire chief receives written medical restrictions for a fire police officer from a medical provider, he or she has to go by those. Plaintiffs Additional SMF ¶ 27; Defendants Reply SMF ¶ 27. The fire chief would have to defer to medical expertise on the medical restrictions of an employee. Id. ¶ 28.25 Brown offered A.G. another position within the police department that he could safely perform within his medical limitations, the newly-created administrative assistant position, but A.G. refused it. Id. ¶ 32. A.G. held the secretary-treasurer position and a maintenance position with the Fire Department, but he resigned from those positions. Id. ¶ 33. The accommodations that Brown offered to A.G. in response to his request for a fire police position were administrative positions and included taking him off active duty. Defendants SMF ¶ 40; Plaintiffs Opposing SMF ¶ 40. Brown felt that: In the end it was inevitable, as far as I was concerned, for the betterment of the fire department that [A.G.] should be removed. But I could not do that during the time of this human rights claim. It needed to be resolved. Because if I had fired him during, I felt, during this process, the Maine Human Rights Commission, then I would definitely be retaliating against him, but that is not the case. I bent over
24

The defendants deny paragraphs 24 and 26, see Defendants Reply SMF ¶¶ 24, 26; however, I view the evidence in the light most favorable to Brown as nonmovant. 25 The defendants objections to paragraphs 27 and 28 on the basis that Calderwoods testimony is not relevant in the circumstances presented, see Defendants Reply SMF ¶¶ 27-28, are overruled.

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backwards to accommodate [A.G.]. Id. ¶ 41.26 4. Selectmen's Reaction Brown believes that he was told he had to put A.G. into a fire police position rather than having him work as a firefighter. Id. ¶ 43. On November 13, 2005, attorney Linda McGill, retained by the Town to advise it with regard to A.G.s request for a transfer to the fire police position, advised Brown and the Town to transfer A.G. to that position. Id. ¶ 44. On November 27, 2005, Brown responded to McGills legal advice by stating that he disagreed with her interpretation and application of the law: [I]t would appear to me the issue is that I refused [A.G.s] request to put him into a position of fire police and the main topic of the meetings we have had is exactly that. So, why is the Town spending all of this money and time if there is no complaint or no complaint against me? *** If a claim were filed with the Human Rights Commission I feel I would be standing on solid ground. I feel that I have good standing with the Maine Human Rights Law and have followed the advice and referenced pertinent laws that are in the Maine Municipal Officers Manual. Again, some of the information in the manual is from your law firm. Keeping in mind, as I am sure you are aware, if you go to court in any matter, a positive outcome is not always assured. This is where people with your expertise come into play, hopefully, to have the outcome be in our favor. I feel that I have done the best that I can handle in this issue in a professional manner and at times with not much if any support from the municipal officers. I feel the South Thomaston fire department members and myself deserve to have this issue settled once and for all. If it ends up in a lawsuit, so be it. Let[s] base this thing on doing the right thing, not on fear and money.

26

Brown qualifies this statement, see Plaintiffs Opposing SMF ¶ 41, stating, inter alia, that the reason he thought it was inevitable that A.G. would be removed from the Fire Department was that he could not perform the duties of the firefighter or fire police positions safely but had declined the administrative assistant position and had resigned from secretary-treasurer and maintenance positions with the Fire Department, see Brown Decl. ¶ 45. Brown states that if A.G.s physical restrictions had been removed, his position would have been that A.G. should be allowed to come back to duty as a firefighter. See Plaintiffs Opposing SMF ¶ 41; Brown Dep. at 238.

18

Id. ¶ 45.27 McGill responded to Browns letter, informing him that she continued to recommend that he transfer A.G. to the fire police position. Defendants SMF ¶ 46; Exh. 58 to Brown Dep., attached to Defendants SMF.28 Brown has no legal education or training. Defendants SMF ¶ 47; Plaintiffs Opposing SMF ¶ 47.29 In late 2005, after Brown had received A.G.s letter requesting to be transferred to the fire police position, as well as the correspondence from McGill and a memorandum from a Town employee describing statements attributed to A.G., Brown believed "it got to the point where he needed to be probably removed from the department." Id. ¶ 48.30 The memorandum from the Town employee stated: [A.G.] stated this [a suggestion by Alley that he leave the Fire Department] was also a violation of his Human Rights. [A.G.] further stated he held Selectmen John Spear & Penelope Alley personally responsible for not taking any action. [A.G.] said he feels the Fire Chief was harassing him at drills, specifically he opened a pump deliberately during drill, in a mean & hurtful manner. [A.G.] stated he had requested the Chief place him in the position of Fire Police in the department. [A.G.] stated he was informed 2 ˝ weeks after the request by Deputy Chief Paul Rackliff that there were no openings for Fire Police within the Department. [A.G.] said he may have to take action that he really did not want to do. He stated it would "cost the Town a lot of money and put the Town in a very bad position." Defendants SMF ¶ 49; Exh. 54 to Brown Dep., attached to Defendants SMF.31
27 28

My recitation incorporates Browns qualification. See Plaintiffs Opposing SMF ¶ 45. I have set forth the portion of paragraph 46 that remains uncontroverted despite Browns denial. See Plaintiffs Opposing SMF ¶ 46. 29 Brown qualifies this statement, see Plaintiffs Opposing SMF ¶ 47, asserting, inter alia, that his years of experience as a Fire Department employee and extensive training in firefighting safety are relevant to evaluating whether a proposed resolution between a town and a disability discrimination claimant creates a risk of serious injury for members of the Fire Department or public and therefore is not an acceptable alternative to litigation, see Brown Decl. ¶ 10. 30 I omit portions of paragraph 48 that Brown effectively controverts. See Plaintiffs Opposing SMF ¶ 48. 31 I have set forth that portion of paragraph 49 that remains uncontroverted despite Browns denial. See Plaintiffs Opposing SMF ¶ 49.

19

The fire chief should have some control over his personnel, but employment decisions that involve risk of liability, going to court, or the Town being sued are the responsibility of the board of selectmen rather than of a department head. Defendants SMF ¶ 50; Northgraves Dep. at 42, 44.32 Northgraves could see why a fire chief or firefighter would be concerned with safety, if a firefighter had the medical restrictions that A.G. had in June 2003. Defendants SMF ¶ 51; Plaintiffs Opposing SMF ¶ 51. The board of selectmen tried to persuade Brown to create a third fire police position for A.G. in the fall of 2005. Id. ¶ 52. The board of selectmen felt an obligation to accommodate A.G.s disabilities based upon the letter and the spirit of the MHRC consent agreement. Id. ¶ 53. The board of selectmen also felt that it was not reasonable to remove A.G. from the Fire Department based upon his limitations when the department had accommodated several other individuals in the same position. Id.33 A confrontational meeting occurred on December 15, 2005, when Brown informed the board of selectmen that he had received a second charge of discrimination filed by A.G.. Id. ¶ 101. Brown believes that the "main cause of the concern" was the selectmens belief that Browns failure to assign A.G. to the fire police position was what caused A.G. to file the charge of discrimination. Id. ¶ 102. Neither Spear nor Alley has ever threatened to commit any act of physical violence against Brown. Id. ¶¶ 103-04. Brown considers conduct by Northgraves to have been

32

Browns objection to this statement on the ground that it concerns a legal issue and is beyond Northgraves expertise, see Plaintiffs Opposing SMF ¶ 50, is overruled. Brown does not explain why the division of power between town heads and selectmen would be beyond the ken of one of those selectmen. 33 Brown denies that the Fire Department did in fact accommodate several other individuals in the same position. See Plaintiffs Opposing SMF ¶ 53. He asserts that both of the Fire Departments fire police officers were able to perform all of the essential functions of the fire police position set forth in the written job description. See id.; Brown Decl. ¶ 22.

20

threatening. Id. ¶ 105. He felt threatened on December 15, 2005, when Northgraves partially stood up from his chair and, according to Brown, said: "If you had done what we requested, we wouldnt be in this situation now." Id.34 On about January 19, 2006, the selectmen sent Brown a letter warning him that his employment was in jeopardy because he did not follow "advice" to place A.G. in the fire police position. Id. ¶ 62; Plaintiffs Additional SMF ¶¶ 65, 69; Exh. 21 to Brown Dep., attached to Defendants SMF. The letter was a warning that if Brown did not "correct his behavior . . . his position was in jeopardy." Plaintiffs Additional SMF ¶ 62; Defendants Reply SMF ¶ 62. The letter stated: As you know, your one year appointment as Fire Chief expires in April 2006. The purpose of the letter is to notify you, as a matter of fairness and professional courtesy, of the current position of the Board of Selectmen regarding your status. The Board of Selectmen presently does not have confidence in your ability to effectively serve as Fire Chief. Consequently, you should not assume that you will be reappointed when your current term expires. The relationship between a part time Board and a department head, in a small town with no full time administrator or manager, inherently must be based on a high degree of trust. It is critical that the Board have full confidence that the department head will independently exercise prudent and mature judgment and will work cooperatively with, and when appropriate, take reasonable direction from the Board. Many of your actions over the past couple of years have degraded the level of trust that we expect and need to have with any department head. *** Specifically, the Board is extremely concerned that you ignored advice given to you by the town attorney Fred Newcomb, employment attorney specialist Linda McGill, . . . and the Board itself. The Board believes your failure to follow this highly qualified advice, which was amazingly consistent . . ., was inexcusable and
34

Brown qualifies this statement, see Plaintiffs Opposing SMF ¶ 105, asserting that his complete testimony as to what Northgraves said on that occasion was: "He threatened to basically fire me or implied that I would be fired. Like I said, he said if you had done what we requested, we wouldnt be in this situation now. Stuff like that[,]" Brown Dep. at 139.

21

borders on recklessness. While we do not think the pending charge had legal merit, the time, expense and risk of defending a lawsuit may have been avoided by administrative action and sound judgment on your part. Unfortunately, your actions in this regard are emblematic of your general attitude. . . . You seem to forget that the South Thomaston Fire Department is just that, a department of the town. Defendants SMF ¶ 76; Plaintiffs Opposing SMF ¶ 76. The Town admits that this letter "was a warning that [Brown] needed to correct his behavior" with regard to putting A.G. in the fire police position and that, if he did not, his position was in jeopardy. Plaintiffs Additional SMF ¶ 103; Defendants Reply SMF ¶ 103. Assessing the legal risk of an employment action and deciding whether or not to enter into a situation that would put the Town at risk for liability is the responsibility of the board of selectmen. Defendants SMF ¶ 79; Northgraves Dep. at 60.35 In response to the January 19, 2006, letter, the selectmen met with Brown and his attorney. Defendants SMF ¶ 80; Plaintiffs Opposing SMF ¶ 80. They communicated to Brown that the letter was not a termination letter. Id. Alley does not recall Browns attorney raising, during that meeting, concerns that the letter violated Browns rights under the Maine Human Rights Act ("MHRA"). Defendants SMF ¶ 81; Deposition of Penelope Alley ("Alley Dep."), attached to Defendants SMF, at 9. Alley "left that executive session thinking that we had conveyed our concerns and we were working toward a better place, and [she] did not believe [Brown] would resign." Defendants SMF ¶ 81; Alley Dep. at 10. At the conclusion of the meeting, Browns attorney said "something like I am glad were all on the same page now and we can work through this and go forward." Defendants SMF

35

Browns objection to this statement on the ground that it is a legal issue that Northgraves had no expertise to opine on, see Plaintiffs Opposing SMF ¶ 79, is overruled. Brown does not explain why the division of power between town heads and selectmen would be beyond the acumen of one of those selectmen.

22

¶ 82; Alley Dep. at 26. Browns lawyer indicated "that he understood that [the January 19, 2006, letter] wasnt a termination letter and we were looking to move forward and appoint [Brown] in April." Defendants SMF ¶ 82; Alley Dep. at 28. 5. Firefighting Ordinance Is Amended From February 25, 2003, until the Fire Departments municipal ordinance was amended in March 2006, the fire chief had authority to hire, appoint, and remove members of the Fire Department. Plaintiffs Additional SMF ¶ 71; Defendants Reply SMF ¶ 71. In a letter dated January 20, 2006, the Town told the MHRC that "[u]nder the ordinance [adopted effective February 25, 2003], the Selectmen appoint the Fire Chief; the Fire Chief has authority to hire, appoint and remove for cause members of the Department." Id. ¶ 72.36 In about January 2006, the selectmen sponsored amendments to the Towns Fire Department ordinance that removed the power of the fire chief to employ and remove all municipal firefighters, an important power of the position. Plaintiffs Additional SMF ¶ 73; Brown Decl. ¶ 37.37 In South Thomaston, there were two ways to get an item on the warrant for voting at a town meeting: a referendum from the public or a vote of the board of selectmen. Plaintiffs Additional SMF ¶ 74; Defendants Reply SMF ¶ 74. The selectmen chose to put the amendment to the Fire Department ordinance on the Town meeting warrant in direct response to Browns opposition to the directive of the board to place A.G. in a fire police position because the board felt that Brown "felt like he did not need to answer to the select board . . . in regards to

36

The defendants qualify paragraphs 71 and 72, see Defendants Reply SMF ¶¶ 71-72, asserting that Brown recites his position with respect to his authority, and that the selectmen, who understood that the board had ultimate authority to make termination decisions, did not share that view, see Alley Dep. at 4; Northgraves Dep. at 6, 8-9. 37 The defendants deny this, see Defendants Reply SMF ¶ 73; however, I view the evidence in the light most favorable to Brown as nonmovant.

23

employees of the fire department."

Id. ¶ 75.

Grierson believes that the changes were

recommended by the selectmen to make Brown resign from his fire chief position. Plaintiffs Additional SMF ¶ 76; Grierson Decl. ¶ 10.38 Brown felt threatened by the warrant article placing amendments to the Fire Department ordinance before the Towns voters at the 2006 town meeting. Defendants SMF ¶ 83; Plaintiffs Opposing SMF ¶ 83. He made statements to a reporter from the local newspaper, the Courier Gazette, regarding his opposition to the warrant article. Defendants SMF ¶ 84; Brown Dep. at 175. With the strong backing of the selectmen, the amendments were adopted on about March 26, 2006. Plaintiffs Additional SMF ¶ 77; Defendants Reply SMF ¶ 77.39 Brown spoke in opposition to the proposed amendments at the town meeting. Defendants SMF ¶ 85; Plaintiffs Opposing SMF ¶ 85. A couple of other individuals within the Fire Department supported the amendment. Id. ¶ 86. In 2002 and 2003, Brown had prepared an ordinance changing the Fire Department from an organization run by a constitution and bylaws to an organization organized pursuant to a municipal ordinance. Id. ¶ 88. The Fire Department ordinance was passed by a vote of the Towns citizens at the 2003 town meeting. Id. Brown believes that the 2006 amendments to the Fire Department ordinance that took "authority away from the fire chief for running the department and especially the personnel issues" were proposed in order to retaliate against him.

38

The defendants objection to this statement on the ground that it constitutes an inadmissible lay opinion pursuant to Federal Rule of Evidence 701, see Defendants Reply SMF ¶ 76, is overruled. The defendants do not explain how the cited testimony, which seemingly is based on Griersons perceptions rather than any specialized knowledge or expertise, fails to pass muster pursuant to Rule 701. 39 The defendants state, and Brown admits, that the amendments were adopted on a different date, March 28, 2006. See Defendants SMF ¶ 85; Plaintiffs Opposing SMF ¶ 85. I use the date set forth by Brown in his SMF. The precise date is in any event immaterial.

24

Id. ¶ 89.40 Grierson, who was employed by the Fire Department for 20 years and was deputy fire chief in 2006, did not think a fire chief could function effectively under the ordinance as revised in March 2006 because it was too restrictive of the powers of the fire chief. Plaintiffs

Additional SMF ¶ 80; Grierson Decl. ¶ 11. When Grierson found out that Brown was resigning, he did not seek the position of fire chief in part because he did not feel he could function effectively as a fire chief under the ordinance as revised. Id.41 Under the amended ordinance, the only options that Brown had to oppose a directive of the selectmen to place A.G. in a position that Brown felt was unsafe were to resign or "take[] it to court." Plaintiffs Additional SMF ¶ 81; Northgraves Dep. at 51-53.42 6. Brown Resigns The board of selectmen reappointed Brown in 2006 at the same meeting at which it made its other annual appointments. Defendants SMF ¶ 110; Plaintiffs Opposing SMF ¶ 110. Brown resigned effective May 1, 2006, shortly after he took his oath of office, "because of the conversation that Barbara Black made to me." Defendants SMF ¶¶ 7, 111; Brown Dep. at 172; Amended Complaint ¶ 15. Barbara Black is the administrative assistant to the board of selectmen. Defendants SMF ¶ 121; Northgraves Dep. at 22. Shortly before administering Brown the oath of office, Black, who is also the town clerk, and Brown had a conversation that Brown describes as follows:
40 41

My recitation incorporates Browns qualification. The defendants objections to paragraph 80 on the grounds that it constitutes inadmissible lay opinion and that Griersons reasons for not seeking the fire chief position are irrelevant, see Defendants Reply SMF ¶ 80, are overruled. The defendants do not explain how the cited testimony, which seemingly is based on Griersons perceptions rather than any specialized knowledge or expertise, fails to pass muster pursuant to Federal Rule of Evidence 701. Griersons perception of the impact of the amendments is relevant. 42 The defendants deny this, see Defendants Reply SMF ¶ 81; however, I view the evidence in the light most favorable to Brown as nonmovant.

25

Like I said, she said: Would you come into the back room of the Town Office. She said: I want to talk with you first. I said: Okay. We went into the back room and she starts to say ­ I cant remember the exact sequence of events, but she said: Ive heard that after you take the appointment that youre going to resign. I said: Who did you hear that from? She never said. So I said: You didnt hear it from me. So that was part of the conversation. She said: Weve had our issues or we have had problems in the past, she says, but I hope you dont resign. Then she said that she and the selectmen had contacted Maine Municipal and that if I were to resign that they would or could take legal action against me. Defendants SMF ¶ 112; Brown Dep. at 173. The board had asked the administrative assistant to tell Brown that, if he took the oath of office and then resigned, it could accept or decline to accept his resignation. Defendants SMF ¶ 134; Northgraves Dep. at 126. The board did not authorize her to tell Brown that it would take legal action against him if he tried to resign. Id. The board was not even considering taking such legal action. Id. Browns conversation with Black was a factor, but not the only factor, in Browns decision to resign. Defendants SMF ¶ 112; Brown Dep. at 173-74. In fact, Brown had discussed resigning with other members of the Fire Department. Defendants SMF ¶ 113; Plaintiffs Opposing SMF ¶ 113. He was not in favor of the amendments approved by the voters at the 2006 town meeting. Id. 7. Brown Files MHRC Charge, Then Lawsuit; Selectmen Publicly Respond On June 28, 2006, Brown filed a charge of Whistleblowers Protection Act retaliation with the MHRC against the Town. Plaintiffs Additional SMF ¶ 65; Defendants Reply SMF ¶ 65. It would have been a dereliction of duty for Brown to allow A.G. to serve as a firefighter or police officer and to ignore the safety hazard posed by an employee who was medically restricted from performing his duties safely. Id. ¶ 66.43
43

The defendants qualify this statement, see Defendants Reply SMF ¶ 66, admitting that it was a dereliction of (continued on next page)

26

Browns whistleblower claim is based on discussions he had with the Town involving transferring A.G. from a firefighter to a fire police position: "Essentially, they were requiring that I put him into a fire police position. That his physical limitations were in direct conflict with the job description requirements of that position. Therefore, it impacted his own personal safety, the safety of other firemen and jeopardized the Town." Defendants SMF ¶ 73; Plaintiffs Opposing SMF ¶ 73. Browns whistleblower claim is based on alleged "demands" that he "put [A.G.] into a fire police position." Id. ¶ 74.44 Brown filed the instant complaint, dated January 21, 2008, in Knox County Superior Court, asserting that the Town retaliated against him in violation of the MWPA. Defendants SMF ¶ 167; Complaint, attached to Notice of Removal (Docket No. 1). He later amended his complaint to add First Amendment claims. See Amended Complaint.45 The First Amendment claims, asserted against the Town and the selectmen as individuals, are based on two specific newspaper articles published on January 23, 2008, and February 15, 2008. Defendants SMF ¶ 178; Brown Dep. at 48-50. On January 23, 2008, a local newspaper published an article about Browns court complaint. Plaintiffs Additional SMF ¶ 83; Brown Dep. at 144. The article included a quote from Northgraves alleging that Brown "left the town in a precarious situation with no fire chief." Plaintiffs Additional SMF ¶ 84; Brown Dep. at 144. On February 15, 2008, the same newspaper published a letter signed by "South Thomaston selectmen" under the title, "South Thomaston selectmen respond to lawsuit." ________________________
duty to keep A.G. in the firefighter position but asserting that the safety hazard that Brown identified would have been eliminated by placing A.G. in a fire police position, see Calderwood Dep. at 67. Brown elsewhere contests the latter proposition. 44 Brown purports to qualify paragraphs 73 and 74, see Plaintiffs Opposing SMF ¶¶ 73-74, but his assertions are not supported by the citations given and are on that basis disregarded. 45 On September 16, 2008, the defendants removed the matter to this court. See Notice of Removal.

27

Plaintiffs Additional SMF ¶ 86; Defendants Reply SMF ¶ 86. The letter included allegations that Browns "abrupt resignation placed the Town in a potentially dangerous and precarious position" and "[a]lthough his resignation was not effective until May 1, then-Chief Brown did not respond to two fire calls on April 30." Id. ¶ 87. The public statements that Brown resigned abruptly and put the Town in a potentially dangerous and precarious position were "a direct response to . . . the filing of [this] lawsuit[.]" Plaintiffs Additional SMF ¶ 88; Northgraves Dep. at 91. Brown thinks that the newspaper articles retaliated against his exercise of his First Amendment right of free speech "[b]ecause they were deliberately done and it was in a hurtful manner that it was done and violated my constitutional rights." Defendants SMF ¶ 179; Brown Dep. at 50. His right to free speech was harmed "[b]ecause thats part of the constitution. It says that you shall not do that." Id. Brown believes that his right to access the court was affected by the two newspaper articles "[b]ecause I believe they were trying to imply that I should not be going to court." Defendants SMF ¶ 180; Brown Dep. at 50. Within seven months of the statements, Brown brought a claim in court based upon those statements. Defendants SMF ¶ 182; Brown Dep. at 50-51. There is no claim that Brown has been unable to bring because of the two statements on which his constitutional claim is based. Defendants SMF ¶ 183; Brown Dep. at 159. Brown cannot think of anything that he would have expressed, any speech that he would have made, or any statement that he would have made, that he did not make because of the conduct of the Town or the individual defendants. Defendants SMF ¶ 184; Brown Dep. at 159-60. Brown has lost no employment position, employment opportunity, promotion, or other opportunity for advancement because of the statements. Defendants SMF ¶ 185; Brown Dep. at 52.

28

Brown believes that the statements made in the letter to the editor affected his reputation because of "the fact that they stated I did not respond to fire calls, which was kind of an intentional slam at me, . . . [and] the other comment that I left the Town abruptly." Defendants SMF ¶ 190; Brown Dep. at 84. Brown can identify two people who made comments to him about leaving the Town "in a lurch," Ruth and Rich Liska. Defendants SMF ¶ 190; Brown Dep. at 85-87. Although Brown alleges that the statements violated his First Amendment rights and caused injury to his fire service career, he has not applied for any fire service related job since January 1, 2005. Defendants SMF ¶ 191; Brown Dep. at 88. Browns pay from the Maine Department of Corrections has not been reduced due to conduct on the part of the Town or the individual defendants. Defendants SMF ¶ 192; Brown Dep. at 118. Brown feels that a quote attributed to Northgraves stating that Brown "left the Town in a precarious situation with no fire chief" violated his constitutional rights because it was untrue and affected his reputation. Defendants SMF ¶ 193; Brown Dep. at 144-45. Brown believes the statement was untrue because he gave the Town two weeks notice of his resignation. Defendants SMF ¶ 193; Brown Dep. at 145. Brown believes the statement, "Mr. Browns abrupt resignation placed the Town in a potentially dangerous and precarious position[,]" violated his constitutional rights because it "reflects upon my reputation and causes me harm." Defendants SMF ¶ 194; Brown Dep. at 147. The harm is that people made statements about it. Defendants SMF ¶ 194; Brown Dep. at 14748. Brown does not think that his resignation put the Town in a potentially precarious position because "there were people in the department that could take over and we have an exceptionally good mutual aid system in this county." Defendants SMF ¶ 194; Brown Dep. at 149.46
46

Brown purports to qualify paragraph 194, see Plaintiffs Opposing SMF ¶ 194, but his qualification is (continued on next page)

29

III. Discussion A. Whistleblowers' Protection Act Claim (Count I) Brown alleges in Count I of his amended complaint that the Town reassigned, harassed, constructively discharged, and otherwise discriminated and retaliated against him in violation of the MWPA and the MHRA. See Amended Complaint ¶ 20. "The MHRA provides a right of action to persons who have been subject to unlawful discrimination, including whistleblowers who have suffered retaliatory discharge or other adverse employment actions." Costain v. Sunbury Primary Care, P.A., 2008 ME 142, ¶ 6, 954 A.2d 1051, 1053 (citations and footnote omitted). "There are three elements to a claim of unlawful retaliation: (1) the employee engaged in activity protected by the statute; (2) the employee was the subject of an adverse employment action; and (3) there was a causal link between the protected activity and the adverse employment action." Id.47 The MWPA protects an employee from adverse employment action taken in retaliation for engaging in conduct that fits within one of five classes of protected activity defined by the statute. See 26 M.R.S.A. § 833(1). Two classes are relevant here: B. The employee, acting in good faith, . . . reports to the employer . . ., orally or in writing, what the employee has reasonable cause to believe is a condition or practice that would put at risk the health or safety of that employee or any other individual. . . . ________________________
unsupported by the citation given and is on that basis disregarded. 47 The Law Court has explained the interplay between the MHRA and the MWPA as follows: "The MHRA refers to the [MWPA], providing that it is unlawful to discharge an employee for actions that are protected from discrimination under the [MWPA]. . . . [T]he term ,,protected action derives from the MHRA, but the requirements that must be met for an action to be afforded protection stem from the [MWPA]." Costain, 2008 ME 142, ¶ 6 n.2, 954 A.2d at 1053 n.2.

30

*** D. The employee acting in good faith has refused to carry out a directive to engage in activity . . . that would expose the employee or any individual to a condition that would result in serious injury or death, after having sought and been unable to obtain a correction of the . . . dangerous condition from the employer[.] Id. § 833(1)(B) & (D). For purposes of subsection (B), "good faith" is a subjective belief at the time of the report that a specified condition poses a risk to the health or safety of an