MULLIN v. NORTHEAST TECHNICAL INSTITUTE

Filing 71

DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT denying in part 51 Motion for Summary Judgment. By JUDGE D. BROCK HORNBY. (mnw)

STATES DISTRICT COURT
DISTRICT OF MAINE
WAYNE MULLIN,
PLAINTIFF
V.

NORTHEAST TECHNICAL
INSTITUTE,
DEFENDANT

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CIVIL NO. 2:14-CV-174-DBH

DECISION AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT AND ORDER TO SHOW CAUSE
This case involves a terminated employee’s retaliation claims under the
federal False Claims Act (“FCA”), the federal Fair Labor Standards Act (“FLSA”),
and the Maine Whistleblowers’ Protection Act (“MWPA”) (enforced through the
Maine Human Rights Act). I DENY the defendant’s motion for summary judgment
on the FCA and MWPA claims (Counts I and III).1 I am skeptical of the plaintiff’s
FLSA retaliation claim given some of the cases the plaintiff has cited, however,
and I ORDER him to show cause by July 24, 2015, why I should not grant
summary judgment against him on Count II.2

The plaintiff has withdrawn his own motion for partial summary judgment on an affirmative
defense. See Pl.’s Notice of Withdrawal of Mot. for Partial Summ. J. (ECF No. 63).
2 I give this opportunity because the argument I discuss below was not explicitly addressed in
the briefing, although it is prominent in the cases that the plaintiff cited.
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Counts I and III, the FCA and MWPA Retaliation Claims

Although the defendant argues strenuously for summary judgment on all
counts, after applying the McDonnell Douglas burden-shifting framework3

I

conclude that there are genuine issues of material fact on when the termination
decision was made, whether the reasons given were pretextual, and who made
or influenced the decision. On the summary judgment record, a factfinder could
conclude that the plaintiff was engaged in protected activities under the FCA and
the MWPA; that the plaintiff’s superiors were upset with his challenge to a
student attendance record deletion; that record-keeping of this sort bore upon
the defendant’s eligibility for federally backed student loans; that the plaintiff’s
belief about the illegality of the defendant’s actions was objectively reasonable;
and that it was the plaintiff’s engagement in activities that might have led to
evidence of FCA violations that caused his termination.
Count II, the FLSA Retaliation Claim

The FLSA prohibits an employer from discharging an employee “because
such employee has filed any complaint or instituted or caused to be instituted
any proceeding under or related to this chapter.” 29 U.S.C. § 215(a)(3). Oral as
well as written complaints are protected.

See Kasten v. Saint-Gobain

Performance Plastics Corp., 131 S. Ct. 1325, 1329 (2011).
According to Valerio v. Putnam Associates, Inc., 173 F.3d 35, 44 (1st Cir.
1999), however, under the FLSA “not all abstract grumblings will suffice to

The burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
applies to FCA and MWPA claims. See Harrington v. Aggregate Indus. Ne. Region, Inc., 668 F.3d
25, 31 (1st Cir. 2012) (FCA claims); Fuhrmann v. Staples Office Superstore E., Inc., 2012 ME
135, ¶ 13, 58 A.3d 1083 (MWPA claims); Murray v. Kindred Nursing Centers W. LLC, No. 2:13cv-00341-JDL, 2014 WL 4411044, at *8 (D. Me. Sept. 8, 2014) (same).
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constitute the filing of a complaint” and support a retaliation claim. For the
FLSA, the Supreme Court has stated that “the phrase ‘filed any complaint’
contemplates some degree of formality, certainly to the point where the recipient
has been given fair notice that a grievance has been lodged and does, or should,
reasonably understand the matter as part of its business concerns.” Kasten,
131 S. Ct. at 1334. According to the Supreme Court, “a complaint is ‘filed’ when
‘a reasonable, objective person would have understood the employee’ to have ‘put
the employer on notice that [the] employee is asserting statutory rights under
the [Act].’” Id. at 1335 (quoting and agreeing with the government’s position in
that case at oral argument) (alteration in original).

“[A] complaint must be

sufficiently clear and detailed for a reasonable employer to understand it, in light
of both content and context, as an assertion of rights protected by the statute
and a call for their protection.” Id. Simply put, there “is a point at which an
employee’s concerns and comments are too generalized and informal to
constitute ‘complaints’ that are ‘filed’ with an employer within the meaning of”
the FLSA. Valerio, 173 F.3d at 44 (citation omitted); see also Manfield v. Alutiiq
Int’l Solutions, Inc., 851 F. Supp. 2d 196, 206 (D. Me. 2012) (stating that a
plaintiff must “put his employer on notice of his actions and intentions,” and
rejecting

retaliation

claim

where

the

plaintiff’s

“limited

and

informal

communications with the Defendants failed to inform them of any intent to
institute an FLSA action.”).
According to the plaintiff’s statement of facts in this case, about two weeks
before his termination, Pl.’s Additional Statement of Material Facts (“PASMF”)
¶ 30 (ECF No. 57), he learned that the defendant had decided to reclassify certain
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of its employees from salaried (exempt from FLSA overtime requirements) to
hourly (covered by FLSA overtime requirements).

He asked the defendant’s

general manager why the change was being made and stated that “for the
employees who were now being classified as non-exempt it would seem that they
would be entitled to overtime premiums for overtime that they had worked in the
past for which they had not received overtime pay or overtime premiums.”
PASMF ¶ 31. The plaintiff says that the general manager “did not respond to
[this] statement.” Id. ¶ 32.4 That appears to have been the extent of the plaintiff’s
communications to management on this matter. He did not claim overtime for
himself. See Pl.’s Opposing Statement of Material Facts ¶ 76 (ECF No. 57). He
never asked any of the other employees if they felt that they should have been
paid overtime, and none of them ever suggested to him that they were entitled to
overtime. Id. ¶¶ 71-72. I invite the plaintiff, therefore, to demonstrate how his
statement regarding overtime got beyond the stage of “abstract grumblings,” if it
even reached that stage.
The plaintiff shall respond by July 24, 2015. If the defendant needs to
reply, it shall do so by July 31, 2015.
SO ORDERED.
DATED THIS 13TH DAY OF JULY, 2015

/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

The plaintiff gave a slightly different version in his deposition, stating that the general manager
responded to his query about why the change was being made and his comment about overtime
with the statement that the defendant did not have to pay the re-classified workers for past
overtime and that the re-classification “was just a change [the defendant] needed to make.” See
Mullin Dep. at 236:2-7 (ECF No. 52-1).
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