KEMPTON v. DELHAIZE AMERICA SHARED SERVICES GROUP LLC et al

Filing 38

ORDER granting 21 Motion for Summary Judgment By JUDGE JON D. LEVY. (jgw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
NICOLE KEMPTON,
Plaintiff,
v.
DELHAIZE AMERICA SHARED
SERVICES GROUP LLC, et al.,
Defendants.

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2:14-cv-00494-JDL

ORDER ON THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff Nicole Kempton has sued her former employer, Delhaize America
Shared Services Group LLC, and Hannaford Bros. Co. (collectively, “Hannaford”),
alleging that it interfered with her rights under the Family and Medical Leave Act
(“FMLA”), 29 U.S.C.A. § 2601 et seq. (2015). Kempton also alleges that Hannaford
retaliated against her in violation of the FMLA and the Maine Whistleblowers’
Protection Act (“WPA”), 26 M.R.S.A. § 831 et seq. (2015). Hannaford has moved for
summary judgment as to all claims. ECF No. 21. For the reasons set forth below,
Hannaford’s motion is granted.
I. FACTUAL BACKGROUND
Nicole Kempton worked for Hannaford at the company’s store in Winthrop,
Maine, from 2009 to 2012 as an Assistant Customer Service Manager. ECF No. 22
at 1; ECF No. 28 at 1, ¶ 1. She had no disciplinary problems until 2012. ECF No. 28
at 14, ¶ 1, ¶ 1; ECF No. 32 at 1, ¶ 1. Kempton’s immediate supervisor was the store’s
Customer Service Manager, Ron Douglas. ECF No. 22 at 1, ¶ 1; ECF No. 28 at 1, ¶

1. Kempton’s other supervisor was the store’s Associate Relations Manager, John
Wellwood. Wellwood’s assistant was Lisa Buzzell.
A.

Relevant Hannaford Policies
It is undisputed that in 2012, when most of the events at issue in this case

occurred, Hannaford had an employee discipline policy known as its “performance
counseling” policy, ECF No. 22 at 6, ¶ 32; ECF No. 28 at 6, ¶ 32, and a separate, but
related, attendance and punctuality policy, ECF No. 28-21; ECF No. 22 at 5, ¶ 27;
ECF No. 28 at 4, ¶ 27.
The performance counseling policy consisted of four progressive steps: Step
One consisted of verbal counseling, ECF No. 22 at 6, ¶ 32; Step Two consisted of the
employee’s first written notice, id.; Step Three consisted of the employee’s final
written notice, id.; and Step Four consisted of the “[f]inal [d]isciplinary [a]ction (up
to and including termination).” Id.
The parties do not dispute that the attendance and punctuality policy forbids
unauthorized absences, leaving a shift early, or taking breaks early or late. ECF No.
22 at 5, ¶ 28; ECF No. 28 at 4-5, ¶ 28. However, they do dispute whether coming to
work before the beginning of a shift constitutes tardiness under the policy—
Hannaford contends that such an occurrence would count as tardiness, while
Kempton contends that the policy does not include coming to work early as an
occurrence or tardiness and therefore does not support Hannaford’s interpretation.
Id.

2

B.

Kempton’s FMLA Request
In 2011, Kempton’s husband contracted Lyme Disease and suffered various

complications as a result.

ECF No. 28 at 14, ¶¶ 2, 3.

Kempton was granted

intermittent FMLA leave in December 2011 in order to care for him. ECF No. 22 at
2, ¶ 5; ECF No. 28 at 1, ¶ 5. Hannaford first sent her a preliminary approval letter
dated December 2, 2011, which stated that her FMLA leave was to begin on
November 6, 2011, and end on November 6, 2012. ECF No. 22-2 at 1. Hannaford
subsequently sent Kempton a second approval letter, dated December 21, 2011, which
stated that the company had received certain required medical documentation and
that as a result, it was amending the approved period of intermittent FMLA leave to
six months, from November 6, 2011 to May 1, 2012. ECF No. 22-2 at 10.
In August 2012, Kempton received a third FMLA authorization letter from
Hannaford. ECF No. 22-5; ECF No. 22 at 4, ¶ 17; ECF No. 28 at 3, ¶ 17; ECF No. 2823 at 4, ¶ 14. However, this letter omitted the dates indicating when the period of
leave would begin or end. ECF No. 22-5. Kempton asked Lisa Buzzell about the
letter and was told that her FMLA leave for her husband was still in place and that
no action was required. ECF No. 28-23 at 4, ¶ 14.
Although Hannaford’s December 21, 2011, approval letter stated only a sixmonth leave period, Kempton nevertheless utilized intermittent FMLA leave to care
for her husband from December 2011 until shortly before her termination in
November 2012, as evidenced by her deposition testimony, ECF No. 22-1 at 21, and
multiple “call-in reports” which are written records dating from between May 2012
and October 2012 that reflect Kempton’s absences from work, ECF No. 28-36 at 33;
3

ECF No. 28-37 through 28-44. The call-in reports contain either a notation stating
“FMLA” or reference Kempton’s husband’s illness as the reason for her absence. See
id.
On October 11, 2012, Kempton stopped by Buzzell’s office to inform her that
she would not be staying to work her shift that day and asked Buzzell to “get the
papers for her to extend her FMLA.”

ECF No. 36-34.

Buzzell refused, telling

Kempton that she “could not do that for her[,]” and instead gave Kempton a card
containing the telephone number for Hannaford’s Associate Service Center, which
Kempton could call directly in order to request the necessary documents. Id.; ECF
No. 28 at 29, ¶ 51; ECF No. 36-36 at 2-3. On October 16, 2012, Buzzell informed
Kempton that her FMLA leave had expired. ECF No. 28-30; ECF No. 28-23 at 4, ¶
15.
C.

Kempton’s Workplace Discipline
Kempton and Hannaford disagree about many of the pertinent facts

surrounding the workplace discipline that Hannaford imposed upon her in 2012.
Kempton alleges that in July 2012, she began receiving written discipline for utilizing
FMLA time and for attendance issues that had never previously raised any concerns,
such as arriving early for her shift and leaving early from her shift.1 ECF No. 27 at
4 (citing ECF No. 28 at 15-16, ¶¶ 6-11). Hannaford asserts that the attendance and
punctuality policy changed on February 5, 2012, in the midst of Kempton’s FMLA
leave, and that the reason for Kempton’s employee discipline was the fact that she

Hannaford’s written records indicate that Kempton received her Step One verbal counseling on
August 21, 2012 and her Step Two first written notice on September 3, 2012. ECF No. 22-13 at 1.
1

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was leaving her shift early, not that she was arriving early. ECF No. 32 at 2-4, ¶¶ 7,
9.
Kempton also maintains that she was disciplined for infractions for which
other employees were not disciplined. ECF No. 27 at 5. For example, Kempton
maintains that other employees with similar attendance records received discipline
after seven to twelve absences, whereas she was disciplined after only five absences.
ECF No. 28 at 25, ¶ 41.

Hannaford states that simply counting absences per

employee is not as straightforward as it seems because under its attendance policy,
“a multi-day, consecutive absence is only counted as a single occurrence if the absence
is for the same reason.” ECF No. 32 at 22-23, ¶ 41. Hannaford also notes that at
least one other employee received Step One counseling after five absences in a twelvemonth period, and received Step Two counseling after six absences in a twelve-month
period. Id. (citing ECF No. 22-25 at 3).
Kempton also asserts that in late August 2012, Douglas met privately with her
after she had requested an “accommodation for her schedule” related to her FMLA
leave. ECF No. 27 at 5.2 At the meeting, Kempton claims that Douglas complained
about the FMLA time she had taken and told her that it was creating problems with
other Hannaford employees. Id. She also claims that Douglas threatened to withhold
his recommendation in the event that she tried to transfer to another Hannaford store
located in Gardiner. ECF No. 28 at 20, ¶ 20.

Kempton does not cite to the summary judgment record with regard to this allegation, so it is not
possible to ascertain what sort of accommodation she requested.
2

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Following the one-on-one meeting with Douglas, Kempton called “ISHARE,”
Hannaford’s human resources hotline, and complained that Douglas had spoken to
her without a witness present. ECF No. 27 at 19-20; ECF No. 28 at 20, ¶ 21.
Kempton maintains that she believed that conducting such a meeting without a
witness present was a violation of company policy and illegal. Id. Immediately after
registering her complaint via ISHARE, Kempton claims, she suffered further
discipline and was prevented from taking FMLA leave to care for her husband. Id.
Hannaford denies that Kempton suffered any retaliation because of her complaint.
ECF No. 32 at 12-13, ¶ 21.
Kempton further claims that she was subject to “adverse employment actions”
insofar as she received “criticism of her leaving early for FMLA issues, criticism of
her interactions with other employees, criticism of her interactions with customers,
changing schedules to make things difficult for [Kempton], repeatedly telling
[Kempton] that nobody respected her, repeating hearsay without giving her specific
examples of criticism, specifically not recommending [Kempton] for another position,
making [Kempton] do work that other employees in the same position were not
required to do, hyper review of [Kempton’s] attendance, and refusal to allow personal
time which was within the manager’s discretion.” ECF No. 28 at 16, ¶ 12.
On October 8, 2012, Kempton received her Step Three final written notice at a
meeting Douglas held with her, John Wellwood, and Assistant Store Manager Patti
Therrien. ECF No. 28-31; ECF No. 28 at 18, ¶ 17; ECF No. 22-13. Douglas wrote an
internal memorandum memorializing the meeting, ECF No. 28-31, which states that
Kempton was being disciplined for leaving work early on October 3, 2012. Kempton
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asserts that she did not work on October 3, ECF No. 28 at 18, ¶ 17, and cites this as
an example of Hannaford’s retaliation for her taking FMLA leave, ECF No. 27 at 10,
¶ 11 (“Plaintiff was disciplined for leaving work on a day she didn’t even work.”).
Hannaford explains that Douglas’ reference to October 3 was a typographical error,
and that she was disciplined for leaving work early on October 4, as reflected in the
Step Three performance counseling form that Kempton received at the October 8
meeting. ECF No. 32 at 19-20, ¶ 35 (citing ECF No. 22-13 (stating that Kempton
“worked less than ½ her shift . . . [on] 10/04/12”)).
More generally, Kempton also asserts that the Associate Resources Manager,
John Wellwood, told her that the decision to take FMLA time was hers and that she
simply needed to tell him when she wished to take such leave. ECF No. 28 at 27, ¶
47. However, according to Kempton, Ron Douglas required that she tell subordinates,
such as the store “shift leader,” why she had to leave early or else her absence would
not be authorized. Id. Kempton asserts that this placed her in the position of
violating her privacy in order to avail herself of FMLA leave. Id.
Kempton’s Statement of Material Facts does not address the facts surrounding
her termination, other than a reference to the fact that it occurred in November 2012.
See id. at 30, ¶ 54. Hannaford’s Statement of Material Facts asserts that the store
manager, Lenny Plourde, met with Kempton on November 5, 2012, and told her that
her employment was terminated in part for violations of the attendance policy but
also for a breach of confidentiality, based upon Kempton allegedly having improperly
spoken to an hourly employee regarding the termination of a cashier for excessive till
shortages. ECF No. 22 at 10, ¶¶ 50, 51 (citing ECF No. 22-1 at 16). Kempton offered
7

qualified responses to Hannaford’s statement of material facts 50 and 51, asserting
that “Kempton stated that the reason for dismissal was attendance,” ECF No. 28 at
9, ¶ 50 (citing ECF No. 22-1), and that “Kempton does not admit to violating company
policy, yet that was one allegedly pre-textual reason given[,]” Id. at ¶ 51 (citing ECF
No. 28 at 24, ¶ 38; ECF No. 28-23 at 12, ¶ 38).
II. SUMMARY JUDGMENT STANDARD
A.

Federal Rule of Civil Procedure 56
Summary judgment is appropriate only 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); see Ahmed v. Johnson, 752 F.3d 490, 495 (1st
Cir. 2014). In making that determination, a court must view the evidence in the light
most favorable to the non-moving party. Johnson v. Univ. of P.R., 714 F.3d 48, 52
(1st Cir. 2013). “[A] judge’s function at summary judgment is not to weigh the
evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (citation and
quotations omitted).
B.

Local Rule 56
Local Rule 56 defines the evidence that this court may consider in deciding

whether genuine issues of material fact exist for purposes of summary judgment.
First, the moving party must file a statement of material facts that it claims are not
in dispute, with each fact presented in a numbered paragraph and supported by a
specific citation to the record. See Loc. R. 56(b).

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Second, the non-moving party must submit its own short and concise
statement of material facts in which it admits, denies, or qualifies the facts alleged
by the moving party, making sure to reference each numbered paragraph of the
moving party’s statement and to support each denial or qualification with a specific
citation to the record. Loc. R. 56(c). The non-moving party may also include its own
additional statement of facts that it contends are not in dispute. Id. These additional
facts must also be presented in numbered paragraphs and be supported by a specific
citation to the record. Id.
Third, the moving party must then submit a reply statement of material facts
in which it admits, denies, or qualifies the non-moving party’s additional facts, if any.
Loc. R. 56(d). The reply statement must reference each numbered paragraph of the
non-moving party’s statement of additional facts and each denial or qualification
must be supported by a specific citation to the record. Id.
The court may disregard any statement of fact that is not supported by a
specific citation to the record, Loc. R. 56(f), and the court has “no independent duty
to search or consider any part of the record not specifically referenced in the parties’
separate statement of facts.” Id.; see also, e.g., Borges ex rel. S.M.B.W. v. SerranoIsern, 605 F.3d 1, 5 (1st Cir. 2010); Fed. R. Civ. P. 56(e)(2). Properly supported facts
that are contained in a statement of material or additional facts are deemed admitted
unless properly controverted. Loc. R. 56(f).

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III. LEGAL ANALYSIS
Kempton’s complaint contains three counts: (1) interference with her FMLA
rights; (2) retaliation for taking FMLA leave; and (3) whistleblower retaliation in
violation of the WPA, 26 M.R.S.A. § 831 et seq. (2015). ECF No. 9-3.
A.

Count One - FMLA Interference Claim
In order to make out a prima facie case for FMLA interference, a plaintiff must

show that (1) she was eligible for the FMLA’s protections; (2) her employer was
covered by the FMLA; (3) she was entitled to leave under the FMLA; (4) she gave her
employer notice of her intention to take leave; and (5) her employer denied her FMLA
benefits to which she was entitled. Carrero–Ojeda v. Autoridad de Energía Eléctrica,
755 F.3d 711, 722 n.8 (1st Cir. 2014). Motive is generally irrelevant to an interference
claim. See Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998). “The
issue is simply whether the employer provided its employee the entitlements set forth
in the FMLA—for example, a twelve-week leave or reinstatement after taking a
medical leave.” Id. “To meet his or her burden in an interference with substantive
rights claim, a plaintiff need only show, by a preponderance of the evidence,
entitlement to the disputed leave[.]” Colburn v. Parker Hannifin/Nichols Portland
Div., 429 F.3d 325, 331 (1st Cir. 2005).
(1)

The Notice Requirement

Hannaford does not dispute the first four elements. See ECF No. 21; ECF No.
31. Nevertheless, Kempton focuses her interference argument on the fourth element,
the notice requirement, arguing that she put Hannaford on notice that she required
an extension of her approved intermittent FMLA leave beyond May 2012 when she
10

continued to take approved absences to care for her husband, as evidenced by the
numerous “call-in reports” dating from as late as August 2012 to October 2012. ECF
No. 27 at 16 (citing ECF No. 28-37 to ECF No. 28-44). Since Hannaford does not
dispute that Kempton satisfies the FMLA notice requirement element, see ECF No.
31 at 1-2, I consider it satisfied for summary judgment purposes, and my focus is on
the fifth element regarding whether Kempton was denied FMLA benefits to which
she was entitled.3
(2)

Denial of FMLA Benefits

Kempton cannot establish the fifth prima facie element, i.e., that Hannaford
denied her FMLA benefits to which she was entitled. Kempton admitted multiple
times during her deposition that Hannaford granted her FMLA leave whenever she
needed it, including after her leave period expired in May 2012:
Q: [I]s it fair to say that after going through your various requests in
2011 and 2012 for FMLA leave that you became familiar with the
procedures of the company and what documents were necessary to be
submitted?
A: Yes.
Q: Okay. And it is also fair to say that [Hannaford] approved your FMLA
leaves in each one of those instances?
A: Yes.
ECF No. 22-1 at 9;
Although the notice requirement typically contemplates notice flowing from the employee to the
employer, see Carrero–Ojeda, 755 F.3d at 722 n.8, Kempton also accuses Hannaford of failing to notify
her of her right to an extension of her intermittent FMLA leave in violation of the Department of Labor
regulations that accompany the FMLA, 29 C.F.R. § 825.300(b)(1). ECF No. 27 at 18-19 (quoting
Bellone v. Southwick-Tolland Reg’l Sch. Dist., 748 F.3d 418, 422 (1st Cir. 2014) (an employer with
knowledge that an employee’s leave may be for an FMLA-qualifying reason must notify the employee
of the employee’s FMLA eligibility within five business days)). Assuming, for the sake of argument,
that Hannaford did commit a notice violation under § 825.300(b)(1), such a violation did not result in
any harm to Kempton because, by her own admission, she continued to take FMLA leave “up until the
time that [she] left the company.” ECF No. 22-1 at 21. Thus, any presumed notice violation did not
constitute FMLA interference since “[l]ate or inadequate notices . . . are not actionable unless they
harm the employee.” Bellone, 748 F.3d at 423 (citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S.
81, 90-91 (2002)).
3

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Q: [I]t looks like it was John Wellwood [who] reminded you that if any
of your absences or early leaves were for your husband while you are on
FMLA leave for him that you need to make them aware of that right
when you know that[,] so that everyone knows if you have to miss time
for that reason, is that right?
A: Yes, if I had to leave, if my husband called and I had to leave, I went
to a manager and said, I have to go. It is something with my husband.
Id. at 14;
Q: Okay. And if I understand correctly, every time that you did take
time off under the FMLA, the company recognized and credited you with
that time off under the FMLA?
A: Yes.
Id. at 19;
Q: And if I understand correctly, between July 27 . . . up until the time
that you left the company, there are numerous days off that you were
allowed to take in whole or in part to care for your husband?
A: Yes.
Q: And those—all those days were still considered to be FMLA leave
days if I understand correctly?
A: Yes.
Id. at 21.
Despite her testimony, Kempton contends that Hannaford frustrated her
attempts to obtain FMLA leave by (1) sending her the August 2012 FMLA letter
which omitted the dates of the approved leave, and (2) refusing to assist her in
entering a request for an extension of her FMLA leave on October 11, 2012. ECF No.
27 at 16-17 (citing ECF No. 28 at 28-29, ¶¶ 51, 52).

These contentions are

unpersuasive for two reasons.
First, in August 2012, after receiving an FMLA approval letter which she did
not request and which omitted the pertinent dates, Kempton approached Lisa Buzzell
for clarification. ECF No. 28-23 at 4, ¶ 14; ECF No. 22-1 at 8. Buzzell told Kempton
12

that she did not need to recertify or extend her FMLA leave, nor provide additional
medical documentation, and stated that Kempton was “all set” into November of
2012. ECF No. 28-23 at 4-5, ¶¶ 14, 15. Buzzell was incorrect, and in fact, Kempton’s
approved intermittent FMLA leave had actually expired in May 2012. ECF No. 22-2
at 10. Nevertheless, there is no record evidence that Buzzell’s erroneous information
had any effect on Kempton’s continued use of FMLA leave. Kempton testified that
she was permitted to take days off in whole or in part to care for her husband, up
until the time that she was terminated from Hannaford. ECF No. 22-1 at 21. This
is further evidenced by the call-in reports which reflect that Kempton continued to
take intermittent FMLA leave during the rest of August 2012, throughout September
2012, and into October 2012. See ECF No. 28-37 through ECF No. 28-44 (call-in
reports dated August 15, 2012 through October 12, 2012); see also ECF No. 27 at 16
(“The Defendants . . . continued to mark the time that she left for her husband . . . on
call in reports from May through October.”).
Second, on October 11, 2012, Kempton stopped by Buzzell’s office to inform her
that she would not be staying to work her shift that day and asked Buzzell to “get the
papers for her to extend her FMLA.”

ECF No. 36-34.

Buzzell refused, telling

Kempton that she “could not do that for her[,]” and instead gave Kempton a card
containing the telephone number for Hannaford’s Associate Service Center, which
Kempton could call directly in order to request the necessary documents. 4 Id.; ECF
4 At paragraph 51 of her statement of material facts, Kempton alleges that on October 11, 2012,
Buzzell told her that she was “all set into November of 2012 for FMLA, and was currently under FMLA
protection.” ECF No. 28 at 29, ¶ 51 (citing Kempton’s deposition testimony, ECF No. 22-1 at 8;
Kempton’s declaration, ECF No. 28-23 at 4, ¶¶ 14, 15).

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No. 28 at 29, ¶ 51; ECF No. 36-36 at 3. Kempton characterizes this interaction as
Hannaford’s failure to “process the paperwork,” ECF No. 27 at 19, and claims that
Buzzell refused “to enter information or assist [her] in continuing the FMLA[,]” ECF
No. 28-23 at 4, ¶ 14.
Kempton’s assertion that she could not request an extension of her FMLA leave
without Buzzell’s assistance is undermined by her admission that she was familiar
with the required procedures and documents for submitting an FMLA request. ECF
No. 22-1 at 9 (“Q: [I]s it fair to say that after going through your various requests in
2011 and 2012 for FMLA leave that you became familiar with the procedures of the
company and what documents were necessary to be submitted? A: Yes.”).
Accordingly, Kempton has not established the fifth prima facie element of her
FMLA interference claim because she has not asserted facts supported by admissible
cited evidence that would allow a reasonable jury to conclude that Hannaford denied
her FMLA benefits. Hannaford’s motion for Summary Judgment as to Count One of
Kempton’s complaint is granted.

However, there is no evidence to support the claim that this conversation took place in October
2012. Rather, the record suggests that it took place in August 2012, shortly after Kempton received
the “in blank” FMLA authorization letter dated August 17, 2012. ECF No. 22-5; ECF No. 28-23 at 4,
¶ 14 (Kempton’s declaration stating that “[i]n August of 2012, I received a letter granting me FMLA
time, ‘in blank’ meaning the start and end time was not listed. I asked Lisa Buzzell . . . about the
letter, and she told me I did not need to recertify or extend the FMLA [leave][.]”); ECF No. 22-1 at 8
(Kempton’s deposition testimony that she approached Buzzell and asked her about the letter “within
the week” of the date of the letter.); ECF No. 28-23 at 4, at ¶ 15 (asserting that Buzzell’s assurances
regarding the “in blank” FMLA letter took place in August).
If Kempton’s allegations were supported by the record, then her FMLA interference claim would
be bolstered by the fact that on October 11, 2012, Buzzell both refused to get the papers for Kempton
to extend her FMLA leave while also telling her that an extension was unnecessary. Since the
allegation is contrary to the record evidence, I disregard it.

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B.

Count Two – FMLA Retaliation
Although the FMLA does not explicitly reference “retaliation,” see 29 U.S.C.A.

§ 2601 et seq., it is “universally recognized” that the FMLA prohibits retaliation
against employees who take FMLA leave. Pagán-Colón v. Walgreens of San Patricio,
Inc., 697 F.3d 1, 8-9 (1st Cir. 2012) (citing Colburn, 429 F.3d at 331 & n.2). In order
to state a prima facie case of FMLA retaliation, a plaintiff must show that she (1)
availed herself of a protected right under the FMLA; (2) was adversely affected by an
employment decision; and (3) there was a causal connection between the protected
conduct and the adverse employment action. Id. at 9 (citing Orta-Castro v. Merck,
Sharp & Dohme Química P.R., Inc., 447 F.3d 105, 113-14 (1st Cir. 2006); Colburn,
429 F.3d at 335)).
Hannaford makes no argument with regard to the first two elements of
Kempton’s FMLA retaliation claim, but argues that her claim fails on the third
element because she has not presented evidence of a “but-for” causal connection
between her use of FMLA leave and her termination. ECF No. 21 at 13. Kempton,
by contrast, argues that she has presented direct evidence of but-for causation by
“constructing a convincing mosaic of circumstantial evidence[.]” ECF No. 27 at 8-9
(quoting Ridings v. Riverside Med. Ctr., 537 F.3d 755, 771 (7th Cir. 2008)).
FMLA retaliation claims that do not feature direct evidence are analyzed
under the McDonnell Douglas burden-shifting framework, with the plaintiff carrying
the initial burden of establishing a prima facie case. Colburn, 429 F.3d at 335-36. If
the plaintiff meets this burden, then the defendant must articulate a legitimate, nonretaliatory reason for the adverse employment action. See Pagán-Colón, 697 F.3d at
15

9 (citation and quotation omitted). If the defendant satisfies its burden, the plaintiff
retains the ultimate burden of establishing that the employer’s stated reason was in
fact a pretext for retaliation. Id.
(1) Causal Connection
In the retaliation claim context, a causal connection can be shown by a
temporal proximity between the protected conduct and the adverse action: “temporal
proximity alone can suffice to meet the relatively light burden of establishing a prima
facie case of retaliation.” DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir. 2008) (quoting
Mariani-Colón v. Dep’t of Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 224 (1st Cir.
2007)) (quotation marks omitted). In Mariani-Colón, 511 F.3d at 224, a timespan of
two months was held to be sufficiently close to establish causation.
Here, the call-in reports identified by Kempton evidence her use of FMLA leave
throughout September and as late as October 2012, less than one month before her
termination. ECF No. 28-37 through ECF No. 28-44. Thus, on the basis of temporal
proximity alone, I conclude that Kempton has met the burden of establishing a causal
connection between her availment of a right under the FMLA and an adverse
employment action. Therefore, she has established a prima facie case of FMLA
retaliation.
2) Pretext
Hannaford argues that it terminated Kempton’s employment due to her poor
attendance and punctuality.

ECF No. 21 at 15-16.

This justification satisfies

Hannaford’s McDonnell-Douglas burden of articulating a legitimate, non-retaliatory

16

reason for the adverse employment action. Benoit v. Tech. Mfg. Corp., 331 F.3d 166,
174 (1st Cir. 2003); Pagano v. Frank, 983 F.2d 343, 348 (1st Cir. 1993).
The focus and burden of proof thus turn to Kempton to establish that
Hannaford’s reason for disciplining and terminating her for poor attendance and
punctuality is a pretext and that its real reason was because she took FMLA leave.
Pagán-Colón, 697 F.3d at 9 (quotation omitted). Kempton may demonstrate pretext
either indirectly by showing that Hannaford’s stated reasons for terminating her
were not credible, or directly by showing that that action was more likely motivated
by a discriminatory reason. Hodgens, 144 F.3d at 168 (citing Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 256 (1981)). One way Kempton may succeed is to
show

“such

weaknesses,

implausibilities,

inconsistencies,

incoherencies,

or

contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them unworthy of credence and with or
without additional evidence and inferences properly drawn therefrom infer that the
employer did not act for the asserted non-discriminatory reasons.” Id. (quoting
Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)) (quotation marks
omitted). In evaluating the sufficiency of Kempton’s asserted facts to withstand
summary judgment, I must consider them in combination, “not each standing alone.”
Id. at 170.
Hannaford argues that Kempton has not pointed to any evidence that her
employee discipline and eventual termination were actually related to her FMLA
leave. ECF No. 21 at 15-16. In response, Kempton argues that “a plaintiff should
not be required to produce ‘smoking-gun’ evidence before prevailing in a
17

discrimination suit[,]” and that “[t]here are many veins of circumstantial evidence
that may be mined by a plaintiff to this end.” ECF No. 27 at 12-13 (quoting Mesnick
v. Gen. Elec. Co., 950 F.2d 816, 824 (1st Cir. 1991)). She claims to have shown, if not
a “smoking gun,” then “at the very least, an extremely hot barrel.” Id. at 13.
a) Employee Discipline
Kempton claims that she was “counseled” on August 13, 2012, not to leave work
early and shortly thereafter was disciplined for taking FMLA leave on August 15,
2012, when she left work early to care for her husband. ECF No. 27 at 13 (citing ECF
No. 28 at 25, ¶ 41). She cites a call-in report which reflects that she indeed left work
early on August 15, 2012, and which contains the notation “3.05 hrs FMLA.” ECF
No. 28-37. Yet the call-in report itself makes no mention of Kempton having been
disciplined as a result. See id. Furthermore, in her deposition testimony, Kempton
made no mention of her FMLA leave being discussed at the August 13 counseling
discussion. See ECF No. 22-1 at 11-12. Rather, Kempton testified that Ron Douglas
told her that “if [she] needed to leave for an emergency, that [she] could just simply
advise them and then they would make that accommodation[.]” Id.
Kempton also cites a Step One performance counseling form from her
personnel file dated August 21, 2012, which states that Kempton “continued to punch
in early and leave early[,]” and on several occasions she left early for personal reasons
and adjusted her schedule without approval, despite the fact that she was “counseled”
on August 13 that she should work her scheduled hours. ECF No. 36-50 (cited at
ECF No. 28 at 25, ¶ 41). While the performance counseling form is evidence of

18

employee discipline, it contains no reference to her absence on August 15, or any other
FMLA-related absence. See id.
Finally, Kempton cites to a spreadsheet entitled “Index of EE Performance
Issues,” which consists of a list of anonymous employees who were disciplined
between 2010 and 2015, along with the dates of discipline and the reasons given.
ECF No. 36-58. The spreadsheet contains no names, and August 15, 2012, is not one
of the dates listed. See id. The date of Kempton’s memorialized Step One verbal
performance counseling—August 21, 2012—is also missing from the spreadsheet.
See id.
Considered as a whole and viewed in the light most favorable to Kempton, the
record evidence of employee discipline against her that she cites does not permit a
reasonable conclusion that Hannaford’s stated reasons for terminating Kempton for
non-FMLA absenteeism are pretextual. Kempton admitted that Ron Douglas, while
counseling her on August 13, told her that she needed to check in with a manager or
assistant manager when she was going to be leaving for the day, or if she needed to
leave for an emergency. ECF No. 22-1 at 11. Even if one of the “several occasions”
that Kempton left work early without approval was for an FMLA-related reason, such
as on August 15, Kempton could not establish that Hannaford’s reasons for
terminating her were pretextual because the record is replete with instances in which
Kempton left her shift without authorization. ECF No. 28-36 at 17, 23, 29, 30, 32,
34. An employer’s need to maintain control over when and how employees come and
go from the workplace is a legitimate reason for subjecting employees to workplace
discipline.
19

b) Direct Complaints Concerning FMLA Leave
Kempton also claims that she can establish pretext on the basis of Ron Douglas’
“direct complaints” about her FMLA leave. ECF No. 27 at 13; ECF No. 28 at 28, ¶
50. She asserts that she attended a “closed door, private meeting” with Douglas in
late August 2012, where she requested “an accommodation for her schedule,” and
claims that Douglas responded by “complain[ing] about the FMLA time she took off
and that it was creating problems with other employees.” ECF No. 27 at 5. The sole
item of record evidence supporting Kempton’s allegation is her declaration. See id.
at 6 (citing ECF No. 28 at 28, ¶ 50 (citing ECF No. 28-23 at 8, ¶ 21)). Her declaration
is, however, inconsistent with her deposition testimony.
Kempton testified at her deposition about her request for a schedule
accommodation at the late August 2012 meeting with Douglas. ECF No. 22-1 at 12
(responding to question about a meeting with Douglas on or about August 26, 2012).
When asked how Douglas responded to her, Kempton testified only that he agreed to
the schedule change and she made no mention of any complaints by Douglas or any
other manager regarding her FMLA leave. Id. at 12-13.
Kempton’s contradictory characterizations of her meeting with Douglas are
noteworthy because “[w]hen an interested witness has given clear answers to
unambiguous questions, [s]he cannot create a conflict and resist summary judgment
with an affidavit that is clearly contradictory, but does not give a satisfactory
explanation of why the testimony is changed.” Colantuoni v. Alfred Calcagni & Sons,
Inc., 44 F.3d 1, 4-5 (1st Cir. 1994). Accordingly, I disregard Kempton’s assertion,

20

made in her declaration, that Douglas criticized her for taking FMLA leave when she
approached him about changing her schedule.
c) The “Dismissive View” of Management
As further circumstantial evidence of pretext, Kempton points to “the
dismissive view that management took when Kempton took FMLA leave[,]” ECF No.
27 at 13 (citing ECF No. 28 at 30, ¶ 53), quoting an October 8, 2012, email from John
Wellwood to Linda Shute, an associate relations specialist, in which the two discussed
Kempton’s employee discipline for attendance and punctuality:
“The early leaves [leading to Kempton’s discipline] listed here are not
tied in to the FMLA for her husband. She has specified that reason for
leaving early on some occasions. She is well aware of the pass she gets
when she claims time off for her husband.”
ECF No. 28-32 at 2.
Viewing the email in the light most favorable to Kempton, a fact-finder might
reasonably interpret Wellwood’s use of the word “pass” as dismissive. Yet even
assuming such a characterization, Wellwood’s email also contains contemporaneous
statements that indicate that Kempton was being disciplined for reasons other than
her intermittent FMLA leave, i.e., “[t]he early leaves listed here are not tied in to the
FMLA for her husband.” Id. Thus, Wellwood’s email cannot reasonably be said to
establish pretext.
d) Hostility by Other Employees
Kempton cites “hostility that management allowed other employees to have
when Kempton took FMLA leave” as more evidence that Hannaford’s reasons for
terminating her are pretextual. ECF No. 27 at 13 (citing ECF No. 28 at 27-28, ¶¶ 48,
21

49). The exhibits she cites do not support her contention. For example, Kempton
relies upon an email “between [John] Wellwood and other managers,” ECF No. 28 at
27, ¶ 48 (quoting ECF No. 28-32 (the “Wellwood email”)), yet because the email is
between managers only, it contains no evidence of hostility by other employees. Even
if the Wellwood email were relevant, Kempton selectively quotes it. She includes the
following excerpt in her statement of material fact: “Nicole ‘tells’ service leaders she
is leaving early. Early leaves are not based on business needs. They are based on
her own desire to leave early for one personal reason or another (she just says she is
leaving).” Id. (quoting ECF No. 28-32 at 2). Kempton omits the following excerpt
from the very same email: “The early leaves listed here are not tied in to the FMLA
for her husband.” ECF No. 28-32 at 2. Thus, in addition to conveying no information
about employee attitudes toward Kempton, the Wellwood email suggests, through the
omitted quote, that Wellwood’s concerns about her alleged absenteeism were based
on her non-FMLA absences and undercuts Kempton’s reliance on it.
Kempton’s other allegations concerning employee hostility also fall short of
establishing pretext. She claims that Hannaford failed to properly instruct associates
and shift leaders regarding “privacy concerns” and failed to instruct subordinate
employees about the “rights” of managers like Kempton to leave work early for
personal reasons. ECF No. 28 at 28, ¶ 49. None of Kempton’s cited record evidence
supports either allegation. Kempton cites notes from an October 2, 2012, meeting
between Ron Douglas, herself, and other Hannaford managers at which Douglas told
her that she gave the impression “that you can come and go as you please and this
upsets the frontend [sic],” and that “[y]ou have created many negative waves on the
22

front end with your absences.” ECF No. 36-45. Neither statement relates to whether
Hannaford instructed its associates regarding “privacy concerns” of any kind.
Additionally, the fact that Douglas referred to negative sentiment among subordinate
employees with regard to Kempton’s absences does not support her assertion that
Hannaford owed her a duty to train lower-level employees about its leave policy for
managers, and Kempton has cited no legal authority for this point. Furthermore,
another Wellwood email states that “Nicole’s unreliability continues to cause moral
[sic] issues on the Front End as she appears to be being held to a lower standard than
the other Front End Associates . . . These Absences and Tardies are not related to the
FMLA she is on for her husband. These are in addition to those missed shifts and
early leaves[.]” ECF No. 28-32 at 4. This statement disentangles the low morale of
subordinate “front end” employees from Kempton’s FMLA leave.5
(e) Refusal to Assist Kempton in Continuing FMLA Leave
As further evidence of pretext, Kempton points to Hannaford’s “refusal to
assist in continuing FMLA leave,” ECF No. 27 at 13 (citing ECF No. 28 at 28-29, ¶¶
51, 52), and references the October 11, 2012, incident in which Kempton stopped by
Buzzell’s office and asked Buzzell to “get the papers for her to extend her FMLA.”
ECF No. 28 at 28-29, ¶ 51; ECF No. 36-34. Buzzell told Kempton that she “could not
do that for her,” and instead gave Kempton a card containing the telephone number

Kempton also cites Paragraph 47 of her own Declaration (ECF No. 28-23 at 15, ¶ 47), which in turn
cites the October 2, 2012, meeting notes discussed above (ECF No. 36-45). Paragraph 47 of Kempton’s
Declaration also contains the conclusory and unsupported allegation that other employees were
jealous when they saw her leave early for shifts. ECF No. 28-23 at 15, ¶ 47. Also, Paragraph 47 cites
to “Kempton Deposition Exhibit 17,” which does not appear in the evidentiary record filed by Kempton.
See id.
5

23

for Hannaford’s Associate Service Center, where Kempton could call directly in order
to request the necessary documents. ECF No. 36-34; ECF No. 28 at 29, ¶ 51 (“Buzzell
refused to enter the documentation, instead basically telling Kempton to do it herself
by giving her a number to call.”).
Kempton also cites John Wellwood’s deposition testimony, which contradicts
Buzzell insofar as Wellwood stated that it was his job to enter a new FMLA request
for an associate electronically so that the request would be received by Hannaford’s
benefits department. ECF No. 28 at 29, ¶ 52 (citing ECF No. 36-60 at 1-2).
The contradiction between (1) what Buzzell told Kempton and (2) what
Wellwood testified to regarding the procedure for requesting FMLA time establishes,
at most, that Buzzell was incorrect when she told Kempton that she “could not” give
her the papers for an FMLA extension. It does not evidence any retaliatory animus
because, as Buzzell’s contemporaneous written memorandum and her deposition
testimony both indicate, she directed Kempton to Hannaford’s Associate Service
Center and gave her a card with the service center’s telephone number on it. ECF
No. 36-34; ECF No. 36-36 at 2-3. Kempton admits that Buzzell gave her the telephone
number for the Associate Service Center, see ECF No. 28 at 29, ¶ 51, and is silent
regarding whether the service center assisted employees with paperwork related to
FMLA leave requests, see ECF No. 28. Thus, Hannaford’s alleged “refusal to assist
in continuing FMLA leave” does not constitute circumstantial evidence of pretext.
(f) Defendants’ Emails Discussing FMLA Leave
Kempton also claims that she can show circumstantial evidence of pretext by
reference to the “personal emails” of Hannaford’s managers. ECF No. 27 at 13 (citing
24

ECF No. 28 at 17-18, ¶¶ 15, 15A, 15B). She asserts that the emails show that the
managers discovered after the fact that her intermittent FMLA leave had expired in
May 2012, and then fired her for the FMLA absences she took after May that were
related to her husband’s illness.6
The emails between Wellwood and other Hannaford managers reflect a
mounting impatience with Kempton’s absences and early departures from work, as
well as confusion about when her approved intermittent FMLA leave ended. See ECF
No. 28-32; ECF No. 28-55. However, the emails Kempton points to also explicitly
state that the absences and early departures at issue were not related to her
intermittent FMLA leave. ECF No. 28-55 at 4 (“These Absences and Tardies are not
related to the FMLA she is on for her husband.”); ECF No. 28-32 at 2 (“The early
leaves listed here are not tied in to the FMLA for her husband.”); id. at 5 (“The only
absences we have dealt with so far are for reasons other than FMLA.”).
One of the cited emails, sent from John Wellwood to Linda Shute on October
12, 2012, might have supported Kempton’s allegation that once Hannaford discovered
that her intermittent FMLA leave had possibly expired, it used that to fire her for
absences related to her husband’s illness. ECF No. 28-55 at 5 (“So . . . do we deal

6 Local Rule 56 details the process by which the parties present the facts to be considered in deciding
a motion for summary judgment. Pursuant to this local rule, the nonmoving party is required to
submit with its opposition a “separate, short, and concise” statement of material facts that it contends
are not in dispute, each supported by a specific record citation. Loc. R. 56(c). Kempton’s statement of
material fact number 15 (ECF No. 28 at 17-18, ¶¶ 15, 15A, 15B), is one of several of Kempton’s
statements of material fact which are neither short nor concise, and which contain several distinct
facts organized into an argumentative narrative. See ECF No. 28. Furthermore, two factual assertions
in statement of material fact number 15 do not contain citations to the record.

Despite the fact that many of her statements of material facts do not fully satisfy Local Rule 56(c)’s
requirements, I have closely reviewed and considered all of Kempton’s factual allegations and have
given every favorable inference she is due as the nonmovant at summary judgment.

25

with her absences this week as regular absences, give her a Step 4 and term her?”).
However, this email demonstrates that these managers were assessing her absences,
not that they had concluded that the absences were FMLA-related.

Moreover,

Kempton cites the email in isolation from subsequent emails, because the email
between Wellwood and Shute also states that they should “wait to see what” Diane
Waterhouse, a benefits administrator, had to say about whether Kempton had
remaining FMLA leave. ECF No. 28-32 at 5. Thus, whatever weight the October 12
email might have had as evidence of pretext is significantly diminished. Additional
subsequent emails between Wellwood and other Hannaford managers bolster this
conclusion because they evidence the managers’ attempts to comply with their
obligations under the FMLA. ECF No. 28-32 at 1-2 (“If she was under a doctor’s care
. . . that might be FMLA[.]”) (“I would let her know where she stands with absences
and ask her if she needs any accommodations to avoid any further violations.”) (“I
would explain to her if she feels any absences are FMLA, she can contact the ASC to
initiate an FMLA.”); ECF No. 28-55 at 3 (“Can you tell me if she is communicating
with anyone the need to leave early and if so, what are the reasons? Are they FMLA
protected?”).
Kempton also cites an unsigned, handwritten note, dated October 12, 2012,
that was added to her personnel file by an unknown person or persons, stating that
she was “not protected by FMLA” and that “any further absences will result in
termination.” ECF No. 28 at 18, ¶ 15B (citing ECF No. 28-27). Yet Kempton omitted
the fact that the note added, “Does she need any further accommodation other than
what Ron has already given [her],” which evidences an attempt to comply with FMLA
26

obligations and undercuts Kempton’s argument that Hannaford managers sought to
terminate her for absences related to her husband’s illness once they discovered that
her intermittent FMLA leave had expired. Kempton’s argument is further
contradicted by an October 17, 2012, email between Wellwood and Linda Shute which
observed that Kempton’s intermittent FMLA leave ended in May 2012, but that
Hannaford did not count absences relating to her husband as contributing to her
employee discipline. ECF No. 28-32 at 5-6 (“Did we count absences after 5/6/12
relating to her husband that resulted in a step? No. The only absences we have dealt
with so far are for reasons other than FMLA.”).
Despite the correspondence discussed above, Kempton avers that she “was not
made aware” that her intermittent FMLA leave had expired and that she “missed
work for her husband several times since that point, ultimately being fired.” ECF
No. 28 at 18, ¶ 15B (citing ECF No. 28-29). Kempton cites a handwritten October 13,
2012, note written by a fellow employee that states that after receiving a telephone
call from her husband, Kempton evinced a need to speak to a person named Judy
about leaving early. ECF No. 28-29. I find for summary judgment purposes that
Kempton in fact left work early on October 13, 2012, in order to care for her husband.
Nevertheless, whatever weight this note lends to Kempton’s pretext argument is
undercut by the October 17, 2012, email between Wellwood and Linda Shute stating
that Hannaford did not count absences relating to her husband as contributing to her
employee discipline. ECF No. 28-32 at 5-6.

27

g) Inconsistent Application of the Attendance and Punctuality Policy
Kempton also alleges that she can establish pretext on the basis that
Hannaford’s attendance and punctuality policy was inconsistently applied, and that
she was the only employee who received a written warning after four alleged
violations and was the only employee who was disciplined for arriving early for her
shift. ECF No. 27 at 13-14 (citing ECF No. 28 at 22, ¶ 31; ECF No. 28 at 24-25, ¶¶
40, 41). This argument fails for several reasons.
First, Kempton’s assertion that she received a written warning after her fourth
absence is misleading because it implies that she was formally disciplined after four
absences. Instead, she received a written notice after her fourth absence noting that
she had called in sick on four occasions and that any further absences prior to March
7, 2013, would result in “Step Counseling” under Hannaford’s attendance policy. ECF
No. 22 at 7, ¶ 35 (citing ECF No. 22-7). Kempton does not dispute that she received
the notice, and does not assert in her statement of material facts that the notice was
a form of written discipline. ECF No. 28 at 6, ¶ 35.
Second, Kempton admits that she received Step One performance counseling
upon her fifth absence. ECF No. 28 at 23, ¶ 33. She contends, however, that the fifth
absence was FMLA-related because she left early to care for her husband. ECF No.
28-23 at 11, ¶ 33 (citing ECF No. 36-30). Yet this contention is undermined by the
fact that Kempton did not dispute Hannaford’s statement of material fact asserting
that the occurrences that formed the basis of discipline imposed on her were
exclusively for her own illness. ECF No. 28 at 12, ¶ 64.

28

Kempton’s assertion that she was the only employee disciplined upon her fifth
absence also is not supported by the record. Hannaford has introduced evidence of at
least one other employee who received Step One performance counseling upon their
fifth absence. ECF No. 22-25 at 3; see Fong v. American Airlines, Inc., 626 F.2d 759,
762 (9th Cir. 1980) (no inference of discrimination where plaintiff was in a category
where other employees were disciplined for similar behavior).
h) Conclusion
Viewing the disputed and undisputed facts in the light most favorable to
Kempton, she has not met her burden to show that Hannaford’s proffered legitimate
reasons for terminating her were actually a “sham intended to cover up [its] real
motive.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 9 (1st Cir. 1990).
Kempton failed to dispute Hannaford’s statement of material fact that “[t]he
occurrences which were used as the basis of discipline that was imposed on Ms.
Kempton were all associated with her own personal sickness.” ECF No. 22 at 12, ¶
64; see also ECF No. 28 at 12, ¶ 64. Hannaford’s statement of material fact number
64 is supported by Kempton’s deposition testimony:
Q:

A:
Q:
A:
Q:
A:

And if I understand correctly, between July 27 . . . up until the
time that you left the company, there are numerous days off that
you were allowed to take in whole or in part to care for your
husband?
Yes.
And . . . all those days were still considered to be FMLA days if I
understand correctly?
Yes.
And the days . . . which were the basis of the discipline . . . were
all days associated with your own personal sickness?
Yes.

29

ECF No. 22-1 at 21. Although an employee “may not be penalized for exercising her
rights under the [FMLA], an employee may nevertheless be discharged . . . for
independent reasons during or after her taking of FMLA leave.” Carrero-Ojeda, 755
F.3d at 719.
Furthermore, the issue in assessing pretext in a McDonnell Douglas burdenshifting case is not whether the reason for firing the plaintiff was real, but rather,
whether the defendant believed it was real. Smith v. Heritage Salmon, Inc., 180 F.
Supp. 2d 208, 218 (D. Me. 2002) (citing Feliciano de la Cruz v. El Conquistador Resort
and Country Club, 218 F.3d 1, 7 (1st Cir. 2000); Mulero-Rodríguez v. Ponte, Inc., 98
F.3d 670, 674 (1st Cir. 1996)). Kempton, herself, expressed uncertainty as to whether
FMLA retaliation was the real reason for her termination, because she agreed in her
deposition testimony that the days that were the basis of her employee discipline
were all days associated with her own personal sickness, as opposed to FMLA leave
to care for her husband. ECF No. 22-1 at 21.
Accordingly, I conclude that Kempton has not met her burden of establishing
that her managers believed her FMLA leave to be the real reason for her termination,
particularly in light of direct evidence of her non-FMLA absenteeism and her
admissions at deposition. Consequently, Hannaford’s motion for summary judgment
as to Count Two of Kempton’s complaint is granted.
C.

Count Three - Whistleblower Retaliation
Kempton contends that Ron Douglas retaliated against her after she

complained to the Hannaford ISHARE network immediately after attending a
“closed[-]door, private meeting” with him in “late August, 2012.” ECF No. 27 at 5-6.
30

Kempton claims that she believed such a private, closed door meeting to be a violation
of company policy, ECF No. 28 at 28, ¶ 50, and illegal, ECF No. 28-23 at 8, ¶ 21. She
asserts that the retaliation consisted of Douglas becoming “even more critical” of her
attendance and refusing to approve additional time off. Id.
The WPA states that:
No employer may discharge, threaten or otherwise discriminate against
an employee . . . because . . . [t]he employee, acting in good faith . . .
reports orally or in writing to the employer . . . what the employee has
reasonable cause to believe is a violation of a law or rule adopted under
the laws of this State[.]
26 M.R.S.A. § 833(1) (A) (2015). To prevail on an MHRA claim for whistleblower
discrimination, Kempton must show that (1) she engaged in activity protected by the
WPA; (2) she experienced an adverse employment action, and (3) a causal connection
exists between the protected activity and the adverse action. Fuhrmann v. Staples
Office Superstore East, Inc., 2012 ME 135, ¶ 15, 58 A.3d 1083 (citing Currie v. Indus.
Sec., Inc., 2007 ME 12, ¶ 12, 915 A.2d 400).
The Maine Law Court recently dispensed with applying the familiar
McDonnell Douglas burden-shifting framework to the summary judgment stage of
WPA retaliation cases. Brady v. Cumberland Cty., 2015 ME 143, ¶ 39, 126 A.3d 1145;
Cormier v. Genesis Healthcare LLC, 2015 ME 161, ¶ 8 n.2, 129 A.3d 944. Under the
new approach prescribed by Brady, the employee must still produce evidence
generating a triable issue on each of the prima facie elements of a WPA retaliation
claim. Brady, 2015 ME 143, ¶ 39, 126 A.3d 1145. If the court determines that the
evidence in the summary judgment record would allow a jury to find for the employee

31

on each prima facie element of her case, then summary judgment for the employer
should be denied. Id.
1) Protected Activity
Although Kempton cites no legal authority whatsoever in her argument
regarding whistleblower retaliation, see ECF No. 27 at 19-21, she nevertheless argues
that her ISHARE complaint was protected activity under the WPA because she had
a “good-faith, objective belief that meeting alone with her was illegal[.]” Id. at 20; see
also ECF No. 28-23 at 8, ¶ 21 (“I was told that there was no policy against meeting
with me alone, something I thought illegal.”).
Hannaford, on the other hand, argues that “no reasonable person would have
believed” that a supervisor meeting alone with a subordinate was a violation of law,
ECF No. 21 at 18, and cites Galouch v. Dep’t of Prof’l & Fin. Reg., 2015 ME 44, ¶¶ 1415, 114 A.3d 988, for the proposition that an employee’s subjective belief alone is
insufficient to meet the WPA’s reasonable cause requirement. ECF No. 21 at 17-18.
To establish that an employee has engaged in protected activity, the WPA
requires, first, that “an employee . . . prove that a reasonable person might have
believed that the employer was acting unlawfully[,]” and, secondly, it requires
evidence that the employee subjectively believed that the employer violated a law or
rule. Bard v. Bath Iron Works Corp., 590 A.2d 152, 154-55 (Me. 1991); see also
Stewart-Dore v. Webber Hosp. Ass’n, 2011 ME 26, ¶ 11, 13 A.3d 773 (“The reasonable
cause requirement is met only when the employee presents evidence showing that . .
. the belief was objectively reasonable in that ‘a reasonable person might have
believed that” a dangerous condition existed.”) (discussing 26 M.R.S.A. § 833(1)(B)).
32

Kempton has satisfied the second half of this requirement by offering her
declaration as evidence of her subjective belief that the private meeting between her
and Douglas was illegal. ECF No. 28-23 at 8, ¶ 21. However, she has not argued that
her belief was reasonable, nor cited any evidence tending to prove that a reasonable
person would believe that Douglas was acting unlawfully by meeting with her alone.
See ECF No. 27; ECF No. 28. Instead, Kempton offers conclusory assertions—again,
with no citation to legal authority—to the effect that her “belief that the private
meeting was the illegality in question shows good faith,” and that “[a] mistaken good
faith belief that something is illegal is trumped by an actual, objective, illegal action
such as FMLA interference or retaliation.” ECF No. 27 at 20. At one point, Kempton
actually undermines her reasonableness argument by admitting that “the context of
the conversations was the real issue . . . not the fact that they were done in private[.]”
Id. at 21.
Kempton’s admission that the private nature of the meetings was not “the real
issue,” id. at 21, combined with her failure to cite either legal authority or evidence
in support of her reasonableness argument, and her conclusory circumlocutions on
the same, are all fatal to her ability to establish the first prima facie element of her
WPA claim—that her ISHARE report constituted protected activity under the WPA.
2) Causal Connection
Even if Kempton could establish that her ISHARE report was protected
activity, she did not allege or address the causal connection element of her WPA
claim. See ECF No. 27 (Opposition to Summary Judgment); ECF No. 3-2 at 4 (Count
III of the Complaint); ECF No. 28 (Kempton’s Statement of Material Facts). Despite
33

this omission, I consider the central question of whether the summary judgment
record contains evidence that would allow a jury to reasonably find that Douglas
disciplined or terminated Kempton as retaliation for her ISHARE report.

See

Cormier, 2015 ME 161, ¶ 18, 129 A.3d 944.
There is no direct evidence that Douglas was aware of Kempton’s ISHARE
report, nor does Kempton explicitly allege that he was—she simply stated in her
declaration that Douglas was even more critical of her attendance after she made the
report, and that he would no longer approve any time off or allow her to leave early.
ECF No. 28-23 at 8, ¶ 21. The latter allegation—that Douglas refused to approve
additional leave or allow Kempton to leave early after her ISHARE report—is
contradicted by Kempton’s deposition testimony, in which she testified that she was
permitted to take FMLA leave “up until the time that [she] left the company[.]” ECF
No. 22-1 at 21. It is also contradicted by numerous call-in reports, dated September
17, 2012, through October 12, 2012, which reflect that Kempton took multiple days
off after making the late August ISHARE report, both for FMLA leave and for other
reasons. ECF No. 28-38 through ECF No. 28-44.
Kempton also alleges that she was disciplined with a “Step 3” performance
counseling for leaving early on October 3, despite evidence that she was not scheduled
to work that day. ECF No. 27 at 20 (citing ECF No. 28 at 18, ¶ 17 (citing ECF No.
28-23 at 6, ¶ 17 (citing ECF No. 28-31; ECF No. 28-33))). Viewing this statement in
the light most favorable to Kempton, it could be interpreted to mean that she suffered
an adverse employment action within approximately one month to six weeks of her
ISHARE report, which by her own account took place “immediately” after the late34

August 2012 meeting. ECF No. 27 at 5; see Daniels v. Narraguagus Bay Health Care
Facility, 2012 ME 80, ¶ 21, 45 A.3d 722. (“Temporal proximity of an employer’s
awareness of protected activity and the alleged retaliatory action may serve as the
causal link for purposes of a prima facie case.”).

However, the performance

counseling form that documents Kempton’s Step Three counseling indicates that she
was actually disciplined for leaving early on October 4, a day on which she does not
deny that she left early. ECF No. 22-13 (performance counseling form stating that
Kempton “worked less than ½ her shift . . . [on] 10/04/12[.]”). This constitutes a “clear,
specific reason[]” for the adverse employment action taken against Kempton that has
nothing to do with retaliation against her for protected conduct, and it provides
legitimate justification for disciplinary action “untainted by retaliatory animus.”
Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 26 (1st Cir. 2004).
I conclude that the evidence in the summary judgment record would not allow
a reasonable jury to find for Kempton on either the protected activity or the causal
connection elements of her WPA claim. See Brady, 2015 ME 143, ¶ 39, 126 A.3d 1145.
Accordingly, summary judgment for Hannaford on Count Three is granted.
IV. CONCLUSION
For the foregoing reasons, Hannaford’s Motion for Summary Judgment (ECF
No. 21) is GRANTED. Kempton’s complaint (ECF No. 9-3) is DISMISSED.
SO ORDERED.
Dated this 17th day of March, 2016.
/s/ Jon D. Levy
U.S. DISTRICT JUDGE
35