MURRAY v. WAL-MART STORES INC et al

Filing 246

DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT AND THE PLAINTIFF'S OBJECTION TO ORDER ON MOTION TO SEAL - granting 196 Motion for Summary Judgment; denying as moot 227 Motion for Partial Summary Judgment; affirming Magistrate Judge's order re 243 Objection. By JUDGE D. BROCK HORNBY. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DAVID E. MURRAY,
PLAINTIFF
V.

WALMART STORES INC.,

ET AL.,

DEFENDANT

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CIVIL NO. 2:15-CV-00484-DBH

DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
AND THE PLAINTIFF’S OBJECTION TO ORDER ON MOTION TO SEAL
This is an employment discrimination case.

The plaintiff-employee,

David E. Murray (Murray), alleges that his employer (the defendants whom I refer
to collectively as Walmart) retaliated against him for engaging in protected
activity and discriminated against him on account of his age and disability. He
seeks relief under Title VII of the Civil Rights Act of 1964, the Americans With
Disabilities Act (ADA), the Maine Whistleblowers’ Protection Act (MWPA), and the
Maine Human Rights Act (MHRA). He also demands unpaid wages and benefits
under Maine labor law.1 Walmart filed a motion for summary judgment on all
claims; Murray requested partial summary judgment on Walmart’s failure-tomitigate defense. I GRANT Walmart’s motion for summary judgment. That ruling
MOOTS Murray’s motion for partial summary judgment.

He also refers to 42 U.S.C. § 1981, but he is not a member of a minority group and therefore
cannot seek relief under that statute.
1

Murray also objects to the Magistrate Judge’s order granting in part and
denying in part Walmart’s motion to seal its summary judgment papers and
exhibits.

I AFFIRM the Magistrate Judge’s order because it is not clearly

erroneous or contrary to law.
PROCEDURAL HISTORY
This case has been pending over four years. Murray cycled through two
sets of lawyers before representing himself, requested and received numerous
extensions of time, and attempted multiple amendments to his complaint. In
August 2015, while Murray was still a Walmart employee, his lawyers filed this
case in Maine Superior Court (Cumberland County). See Complaint (ECF No. 11). Walmart removed it to this court on November 24, 2015, asserting both
federal question and diversity of citizenship jurisdiction. 28 U.S.C. §§ 1331,
1332; Defs.’ Notice of Removal (ECF No. 1).

Walmart then answered the

complaint and discovery began. Defs.’ Ans. (ECF No. 11); Scheduling Order (ECF
No. 12).
In October 2016, Walmart fired Murray, prompting him to file an amended
complaint the following month that incorporated allegations related to his
termination. Report of Hearing and Order (ECF No. 33); First Am. Compl. (ECF
No. 36).

As discovery continued, Murray’s lawyers terminated their

representation in May 2017, citing “professional considerations” under Maine
Rule of Professional Conduct 1.16. Pl.’s Counsels’ Mot. for Leave to Withdraw
(ECF No. 71). Murray missed a court-ordered deadline for retaining new counsel,
but he requested an extension and explained that because of his medical
conditions, “there was no way that [he] could represent [him]self Pro Se.” Pl.’s
2

Mot. to Extend Time (ECF No. 74). He successfully retained a new lawyer in
early July 2017. Notice of Appearance on Behalf of Murray (ECF No. 79).
Murray’s new lawyer obtained multiple deadline extensions, one of them
because the parties were engaged in settlement negotiations that they
anticipated completing within 30 days. Joint Mot. to Stay Proceedings (ECF No.
87). A month and a half later, Murray’s lawyer reported that the parties had
been unable to reach a settlement. On November 29, 2017, he requested to
withdraw his representation because of “[a]n irretrievable breakdown in the
attorney-client relationship.” Mot. to Withdraw (ECF No. 91); Order re: Status
Conference (ECF No. 92).

A Magistrate Judge gave Murray 30 days to find

successor counsel or choose to proceed pro se. Order Granting Mot. to Withdraw
(ECF No. 93). But Murray requested additional time, explaining that he was
having difficulty retaining new counsel and attaching letters from his doctors in
support of his claim that his medical conditions precluded him from representing
himself. Pl.’s Mot. to Extend All Deadlines (ECF No. 94). On February 7, 2018,
the Magistrate Judge—noting that the case by then was in its third year,
following “numerous extensions,” and it was “thus unsurprising that he has had
difficulty retaining new counsel”—granted Murray a further extension, allowing
him a total of 90 days to find a new lawyer after his prior counsel’s withdrawal.
Order Granting in Part & Denying in Part Mot. to Amend (ECF No. 100). As it
turned out, Murray did not secure new counsel.
Next, proceeding pro se, Murray requested a settlement conference. Letter
Requesting Settlement Conf. (ECF No. 101). The parties met with a Magistrate
Judge for two days, followed by two additional meetings by phone and one more
3

in person. See Minute Entries re: Confs. (ECF Nos. 106, 107, 109, 112 & 117).
They were unable to reach a settlement. At a conference in July 2018, a different
Magistrate Judge denied Murray’s request for additional time to secure a lawyer,
and he set remaining pretrial deadlines. Order re: Non-Final Pretrial Conf. (ECF
No. 123).
With the failure of the settlement conferences, the parties resumed
discovery and motion practice. Denying an additional request from Murray for
another stay while he continued to look for counsel, a Magistrate Judge noted
that, as of August 24, 2018, “the parties jointly or separately requested and were
granted 22 extensions. Six of those extensions stemmed from Murray’s search
for successor counsel. . . . This court has made every reasonable attempt to
accommodate Murray’s efforts to find first one successor counsel and then
another.” Mem. Dec. & Order on Mots. at 2, 5 (ECF No. 129). I denied Murray’s
objection to the Magistrate Judge’s order, explaining that the Court had already
been “very accommodating in allowing numerous extensions of deadlines” and
that Murray had failed to give any indication that his condition was “likely to
improve in the foreseeable future” or that he had “a plan for engaging counsel
following his lack of success so far.” Order Denying Obj. to Mem. Dec. & Order
at 2 (ECF No. 155).
Murray filed a second amended complaint on September 26, 2018, adding
factual allegations and state law claims for unpaid salary, paid time off, and
executive compensation benefits. See Second Am. Compl. (ECF No. 159). On
the same day, he moved to file a third amended complaint. Mot. to Amend Am.
Compl. (ECF No. 160). The Magistrate Judge denied that motion, concluding
4

that Murray did not demonstrate good cause for his substantial delay in seeking
to amend his complaint further and, to the extent he did have good cause, the
claim he proposed was futile. Mem. Dec. & Order on Mot. to Amend (ECF No.
181).
Walmart filed its motion for summary judgment and supporting statement
of material facts on April 29, 2019. Redacted Mot. for Summ. J. (ECF No. 196);
Redacted Stmt. of Facts (ECF No. 197). Murray requested additional time for
filing his response to the summary judgment motion, which the Magistrate Judge
granted. Pl.’s Mot. to Extend Time (ECF No. 202); Order Granting Mot. to Extend
Time (ECF No. 207). A day later, Murray filed a motion to stay all deadlines and,
three weeks after that, submitted another motion for an extension. Mot. to Stay
(ECF No. 211); Mot. to Extend Time (ECF No. 215).

The Magistrate Judge

ultimately granted Murray a further extension on July 12, 2019. Order Granting
Mot. to Extend Time (ECF No. 222). But the day before, Murray filed a motion
for partial summary judgment on Walmart’s affirmative defense of failure to
mitigate damages. Mot. for Partial Summ. J. & associated filings (ECF Nos. 22427). Then, on the same day that the Magistrate Judge granted his motion for an
extension, Murray filed a partial response to Walmart’s statement of facts along
with a statement of additional facts. Response to Stmt. of Facts with Stmt. of
Add’l Facts (ECF No. 228).

Murray’s response addressed Walmart’s facts

numbered 1 through 173 but did not address facts 174 through 274. See id.
Since he submitted his filings the day before and the same day as the Magistrate
Judge granted his request for more time, the Magistrate Judge gave Murray the
option of withdrawing those filings and submitting his responses by the newly
5

extended deadline or foregoing the extended deadline and standing by his
existing responses. Order re: Resp. to Mot. for Summ. J. (ECF No. 231). Murray
chose to stick with what he had already filed. Pl.’s Status Report at 4-5 (ECF
No. 232).
The parties proceeded to submit replies and responses to the cross
motions for summary judgment and accompanying statements of facts, although
Murray has never filed a brief in opposition to Walmart’s motion for summary
judgment (despite submitting a partial response to Walmart’s Statement of
Material Facts) or a response to Walmart’s facts numbered 174 through 274.
See Defs.’ Reply in Support of Mot. for Summ. J. (ECF No. 233); Defs.’ Reply to
Stmt. of Add’l Facts (ECF No. 234); Defs.’ Opp. to Mot. for Partial Summ. J. &
accompanying exhibits (ECF Nos. 235 & 236); Pl.’s Reply in Support of Mot. for
Partial Summ. J. (ECF No. 239); Pl.’s Response to Defs.’ Stmt. of Facts &
accompanying exhibits (ECF Nos. 240 & 241). The cross-motions for summary
judgment are now fully briefed and ready for decision.2

2 It is apparent from Murray’s many filings that he believes that his lawyers and this Court have
treated him unfairly. As I have written previously, Murray’s complaints about his lawyers are
not part of this lawsuit and not Walmart’s responsibility. Order on Pl.’s Mot. for Continuance &
Stay at 2-3 (ECF No. 174). Whether or not Murray has any legitimate complaints against his
previous lawyers, those complaints cannot affect the decision in his case against Walmart. I
regret that Murray believes that this Court has given him insufficient time as a pro se litigant
afflicted with medical issues. But the record I have recited shows that the Court has granted
Murray many accommodations, and Murray and his doctors are unable to predict when Murray
may achieve a recovery that will enable him to handle his lawsuit better. Ultimately, the Court
must treat all parties fairly; defendants are entitled to timely justice, just as plaintiffs are. I
cannot justify further indefinite delays. Indeed, the Civil Justice Reform Act of 1990 requires
public reporting of the “names of cases that have not been terminated within three years of filing.”
28 U.S.C. § 476(a)(3), a sign of Congress’s view of delay.

6

UNDISPUTED FACTS
Here is a broad outline of the facts in this case. I provide further details
in the appropriate sections of the legal analysis. When the facts are properly
disputed, I take Murray’s version since he is the nonmoving party. See SantiagoRamos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 50 (1st Cir. 2000).
Murray began working for Walmart in October 1993.

Defs.’ Stmt. of

Material Facts (SMF) ¶ 1 (ECF No. 198-2); Pl.’s Resp. to SMF (Resp.) ¶ 1 (ECF
No. 228). From February 2006 until he began a leave of absence in January
2015, Murray was a market manager, charged with overseeing eight to ten stores
(the exact number changed as Walmart conducted internal realignments on
occasion) in Central Maine and New Hampshire. Pl.’s Stmt. of Add’l Material
Facts (SAMF) ¶ 276 (ECF No. 228). Murray was responsible for as many as 3,300
Walmart employees and more than $500 million in annual sales. Pl.’s Ans. to
Interrogs. at 18 (ECF No. 198-3); Defs.’ SMF ¶¶ 5-6; Pl.’s Resp. ¶¶ 5-6. As a
market manager, Murray had to be on the road almost every day to travel from
store to store, checking on the stores’ performance and meeting with Walmart
personnel. He worked seventy to eighty hours each week. Pl.’s Ans. to Interrogs.
at 7. In a typical month, he spent only a couple of days in his own office. Murray
Dep. at 177:7-18 (ECF No. 198-5).
Murray’s neighboring market managers play important roles in his claims
against the company. In the territory to the north of Murray’s market, Alan
Heinbaugh was the market manager. Defs.’ SMF ¶¶ 25-27; Pl.’s Resp. ¶¶ 25-27.
Kevin Robinson oversaw the market to the south. Defs.’ SMF ¶¶ 28-30; Pl.’s
Resp. ¶¶ 28-30. Each of the three markets had its own set of stores, which the
7

market managers ran without help from their neighboring managers. Murray
Dep. at 181:13-16. The three men did not supervise one another or influence
each other’s salaries or annual reviews. Id. at 181:5-12. Instead, they reported
to a regional manager, Paul Busby, who oversaw several markets in the region.
Defs.’ SMF ¶¶ 31-32; Pl.’s Resp. ¶¶ 31-32.
Murray made his first formal claim of wrongdoing in September 2013 when
he submitted a complaint to Walmart’s internal ethics team. See Sept. 29, 2013,
email from Murray (ECF 198-10). As detailed further below, Murray claimed that
he felt harassed and undermined by Heinbaugh and that Busby had failed to act
when alerted to Murray’s complaints. Id. at 2. Murray made largely the same
claims in an eleven-page document he submitted to Walmart leadership in
October 2013. Oct. 11, 2013, email from Murray (ECF 198-11).
In January 2014, Murray sent a note to a Walmart investigator alleging
that Heinbaugh and Robinson created a hostile work environment through
repeated offensive sexual and racial comments about others in the workplace.
Message addressed to “Brandie” at 1-2 (ECF No. 198-12); see Murray Dep. at
118:12-17 (ECF No. 198-5) (explaining Brandie Patton was “a Wal-Mart global
investigator”). In June 2014, Murray filed a Charge of Discrimination with the
Maine Human Rights Commission and the federal Equal Employment
Opportunity Commission that made the same claims. Charge of Discrimination
at 3-4 (ECF 198-8).

He claimed that Walmart inadequately investigated his

allegations and that his supervisors and coworkers were retaliating against him
by, among other things, responding more slowly to his messages and requests.
Id. at 5-13.
8

Murray took a leave of absence for medical reasons beginning on
January 20, 2015, citing several physical and mental health conditions. Request
for Leave of Absence, Edwards Dep. Ex. 3 (ECF No. 198-22). Murray stated that
he would return to work April 7, 2015, unless circumstances changed.

Id.

Unfortunately, his health apparently worsened; Murray filed requests to extend
his leave of absence to May 26, 2015, then to April 5, 2016, then to October 5,
2016, then to March 22, 2017, each time including statements from his doctor
attesting to his increasingly long list of conditions.

Requests for Leave of

Absence, Edwards Dep. Exs. 4-7 (ECF Nos. 198-23, 24, 25, 26). On April 16,
2015, Walmart told Murray that his protected medical leave had expired (he had
previously used some of his protected Family and Medical Leave Act time in 2013
and 2014, Murray Dep. at 242:9-18 (ECF No. 198-5)), and that it would begin
looking for a replacement to fill Murray’s position. Email from David Minsky,
Busby Decl. Ex. J at 3-4 (ECF No. 199-17). Murray asked to be permitted to
continue as market manager, perhaps by working part-time or remotely, but
Walmart said that his job was “business critical” and it needed someone working
full-time who could travel to the various stores in person. Id. at 2-3; Tr. of call
1660, Albert Decl. Ex. N at 3-4 (ECF No. 200-24).3
In August 2015, Murray filed this lawsuit.

Walmart fired Murray in

October 2016. It gave two reasons: Murray’s requests for ongoing leave with no
reasonably anticipated return date, and Walmart’s learning that Murray had

At his deposition in June 2016, Murray stated that his health conditions still prevented him
from returning to work as a market manager, and he did not know when he would be able to do
so. Murray Dep. at 33:1-9 (ECF No. 198-5).
3

9

recorded more than 100 phone calls with Walmart employees related to Walmart
business, without the other call participants’ consent. Morris Termination Letter
(ECF No. 228-4); see Murray Dep. at 138:6-25, 169:19-170:23.

A Walmart

official notified Murray on October 4, 2016, that he was fired, but his termination
was not entered into Walmart’s payroll system until January 23, 2017.
McChristian Decl. ¶¶ 2-3 (ECF No. 200-7); see also Murray Dep. (second) at 6:2022 (ECF No. 198-15).
ANALYSIS
Murray brings retaliation, discrimination, and wage claims. He says that
Walmart retaliated against him for reporting what he believed was discrimination
and a hostile work environment in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq.; the Americans With Disabilities Act (ADA), 42
U.S.C. § 12101 et seq.; Section 1981, 42 U.S.C. § 1981; the Maine Human Rights
Act (MHRA), 5 M.R.S.A. § 4551 et seq.; and the Maine Whistleblowers’ Protection
Act (MWPA), 26 M.R.S.A. § 831 et seq. He claims that Walmart discriminated
against him on the basis of his age and disability, violating the ADA, the MHRA,
and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. He also says
that Walmart failed to pay him what he was owed within two weeks of his request
that it do so, in violation of 26 M.R.S.A. § 626.
Walmart seeks summary judgment on all of Murray’s claims.
1. Legal Standard

On Walmart’s motion for summary judgment, I consider the undisputed
facts. Where facts are disputed, I take the version most favorable to Murray as

10

the non-moving party. See Santiago-Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46, 50 (1st Cir. 2000).
Under this District’s local rules, if a party does not file a written objection
to his opponent’s motion, he is “deemed to have waived objection.” Local Rule
7(b). In the context of summary judgment, that means that if the moving party’s
statement of fact is supported by record citations and not properly controverted,
I take the statement as undisputed. Local Rule 56(f). Murray did not file a
memorandum opposing Walmart’s motion for summary judgment, and he did
not respond to more than a third of Walmart’s statements of fact. See Pl.’s Resp.
¶¶ 174-274 (blank responses). “Pro se litigants are not excused from complying
with the Federal Rules of Civil Procedure or the Local Rules of this district,”
Philbrick v. Maine Dept. of Health and Human Servs., 616 F. Supp. 2d 123, 126
n.3 (D. Me. 2009), and Murray has demonstrated that he is aware of these rules
by, among other things, responding to Walmart’s first 173 statements of fact.
Judges reviewing summary judgment motions “must be able to rely on
procedural rules so as to avoid becoming the lawyer for the unrepresented
plaintiff or devoting an excessive portion of their time to such cases.” Clarke v.
Blais, 473 F. Supp. 2d 124, 129 (D. Me. 2007).
Even so, “in certain cases, the Court has approached summary judgment
disputes involving a pro se party with some leniency.” Tinkham v. Perry, 2015
WL 2092513, at *2 (D. Me. May 5, 2015). In this case, Murray has asserted that
he was unable to comply with the rules because of his physical and mental
health limitations. Murray Aff. ¶ 4 (ECF No. 224-1). Therefore, despite Murray’s
noncompliance with the summary judgment rules, I have not automatically
11

accepted Walmart’s arguments and properly supported statements of fact, but
rather have reviewed the broader record to satisfy myself that it supports what
Walmart asserts. See Szillery v. Career Sys. Dev. Corp., 2008 WL 2789492, at *2
(D. Me. Jul. 17, 2008) (“[E]ven if the pro se plaintiff fails to respond to the
statements of material fact, the court is still required to inquire whether the
moving party has met its burden to demonstrate undisputed facts entitling it to
summary judgment as a matter of law.”); Fed. R. Civ. P. 56(e)(4) advisory
committee’s note to 2010 amendment (“[T]he court may seek to reassure itself
by some examination of the record before granting summary judgment against a
pro se litigant.”).
I review Murray’s contentions claim by claim, beginning with his
retaliation allegations, followed by his disability discrimination claim, age
discrimination claim, and finally his claim for unpaid wages.
2. Retaliation

Murray alleges illegal retaliation under both federal and state law, claiming
that Walmart retaliated against him for reporting what he believed to be unlawful
discrimination. The federal and state statutes require different analyses, and I
discuss them separately.
A. Title VII

Title VII of the Civil Rights Act of 1964 makes it “unlawful for employers to
retaliate against persons who complain about unlawfully discriminatory
employment practices.” Noviello v. City of Boston, 398 F.3d 76, 88 (1st Cir.
2005); see 42 U.S.C. § 2000e–3(a). At the summary judgment stage, claims of
retaliation under Title VII are evaluated using the McDonnell Douglas burden12

shifting framework. Theriault v. Genesis HealthCare LLC, 890 F.3d 342, 350
(1st Cir. 2018); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804
(1973). The framework has three steps. First, the plaintiff must “make out a
‘prima facie case’ which requires only ‘the production of admissible evidence,
which, if uncontradicted, would justify a legal conclusion of [retaliation].’”
Theriault, 890 F.3d at 350 (quoting Sanchez v. P.R. Oil Co., 37 F.3d 712, 719
(1st Cir. 1994)). If the plaintiff successfully demonstrates this prima facie case,
the burden shifts to the defendant, who “must articulate a legitimate, nonretaliatory reason for its employment decision.” Valentin-Almeyda v. Mun. of
Aguadilla, 447 F.3d 85, 95 (1st Cir. 2006) (quoting Calero–Cerezo v. U.S. Dep’t
of Justice, 355 F.3d 6, 26 (1st Cir. 2004)). Finally, if the defendant meets its
burden, “the plaintiff must now show that the proffered legitimate reason is in
fact a pretext and that the job action was the result of the defendant's retaliatory
animus.” Id.4

4 Walmart argues that some of Murray’s allegations are time-barred under both Title VII and the
Maine Human Rights Act, Mot. for Summ. J. at 35-37 (ECF No. 198-1), because they occurred
outside the 300-day period leading up to Murray’s charge of discrimination with the Maine
Human Rights Commission and the Equal Employment Opportunity Commission. See 42 U.S.C.
§ 2000e-5(e)(1) (requiring charge under Title VII be filed “within three hundred days after the
alleged unlawful employment practice occurred”); 5 M.R.S.A. § 4611 (“[A] complaint must be filed
with the commission not more than 300 days after the alleged act of unlawful discrimination.”);
Ayala v. Shinseki, 780 F.3d 52, 56 (1st Cir. 2015) (“If a claimant fails to [file an administrative
complaint within the 300-day period], discrete discriminatory acts will be time-barred, and thus
not actionable, even if they are related to acts alleged in timely filed charges.”). Thus, Walmart
contends that any acts that took place before August 6, 2013—300 days before Murray filed his
administrative complaint on June 2, 2014, see Charge of Discrimination (ECF No. 198-8)—
cannot support Murray’s claims. I conclude that Murray’s retaliation claim is not time-barred.
As discussed in text, the adverse employment actions arguably supporting his claim are his 2014
performance review, which occurred during the 300-day period, and his termination, which
occurred after he filed the administrative complaint.

13

i.

Step One: Prima Facie Case

At step one, then, the question is whether Murray can point to sufficient
evidence to make out a claim for retaliation. “A retaliation claim requires a
showing that (1) the plaintiff engaged in protected conduct; (2) [he] was subjected
to an adverse employment action; and (3) there was a causal connection between
the first and second elements.” Id. at 94. In his prima facie case, Murray can
successfully show that he engaged in protected conduct and was subjected to an
adverse employment action. However, he has not produced evidence showing a
causal connection between the two. Without that causal connection, Murray’s
Title VII claim fails at the prima facie stage.
(a) Protected Conduct

Walmart does not seem to dispute that Murray engaged in protected
conduct. Complaining to supervisors about perceived discrimination counts as
protected conduct, Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 175 (1st Cir. 2003),
and so does filing a formal complaint, Noviello v. City of Boston, 398 F.3d 76, 88
(1st Cir. 2005).
The record demonstrates that Murray engaged in protected conduct on at
least three occasions.
In a January 2014 message addressed to a Walmart internal investigator,
Murray alleged that Heinbaugh, Robinson, and Busby were engaged in
“unlawfully discriminatory actions.”

Message Addressed to “Brandie” at 1-2

(ECF No. 198-12); see Murray Dep. at 118:12-17 (ECF No. 198-5) (explaining
Brandie Patton was “a Wal-Mart global investigator”). He alleged that Heinbaugh
and Robinson created a hostile work environment by repeatedly making offensive
14

sexual comments about women in the workplace and, in Robinson’s case, also
making racially offensive comments about President Obama and other African
Americans.5 Murray also claimed that Busby said Murray was “too old to be
shoveling snow,” called Murray “Bill Clinton and Slick Willie,”6 and discussed, in
front of other people, what Murray described as an “ADA accommodation for
severe Sleep Apnea”—a private hotel room the company provided him during a
business trip so that he would not have to share a room with another employee.
Message Addressed to “Brandie” at 3 (ECF No. 198-12). For a complaint to
constitute protected activity, any event it described “need not be a Title VII
violation so long as [the complainant] had a reasonable belief that it was.”
Benoit, 331 F.3d at 175. Murray made clear in the message that he believed the
behavior he described constituted unlawful discrimination based on race, sex,
age, and disability. Message Addressed to “Brandie” at 1, 3 (ECF No. 198-12).
For purposes of this summary judgment decision, I will assume that his belief
was reasonable and this message was therefore a protected activity. SantiagoRamos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 50 (1st Cir. 2000) (I view
the record in the light most favorable to the nonmovant at the summary
judgment stage).

Heinbaugh and Robinson, who are not parties to this lawsuit, denied in their depositions that
they made such comments.
6 It is not clear whether Murray sees this name calling as discriminatory in some way or as
retaliatory. It does not appear to be discriminatory against Murray. And it does not constitute
the kind of adverse employment action required to support a retaliation claim—the standards
for which are set out below—because it is not so severe that it “might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Burlington N. and
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
5

15

In June 2014, Murray filed a Charge of Discrimination with the Maine
Human

Rights

Commission

and

the

Equal

Employment

Opportunity

Commission in which he made the same allegations regarding Heinbaugh,
Robinson and Busby. Charge of Discrimination (ECF No. 198-8).
Then in August 2015, Murray filed this lawsuit. See Lewis v. Am. Sugar
Refining, Inc., 325 F. Supp. 3d 321, 357 (S.D.N.Y. 2018) (“Plaintiff participated
in a protected activity by . . . filing the present lawsuit.”).
The message to the Walmart investigator, the formal Charge of
Discrimination, and the filing of this lawsuit all constitute protected conduct,
since

Murray

was

reporting

activities

that

he

believed

violated

anti-

discrimination and retaliation laws.7 See Benoit, 331 F.3d at 175.
Murray made other complaints claiming that he felt harassed, bullied, and threatened by his
colleagues, but these do not constitute protected conduct under Title VII because he did not
indicate that he believed any of those behaviors were discriminatory against a protected class;
in other words, there is no evidence from the complaints that he believed any of the acts he
described violated Title VII. Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 175 (1st Cir. 2003) (for an
employee’s complaint to constitute protected conduct, he must have at least “a reasonable belief”
that the activity he opposes violated Title VII).
In one of these complaints, submitted to the Walmart Ethics Team in September 2013,
Murray stated he felt threatened by Busby because, among other things, Busby had not followed
up on Murray’s concerns about harassment he felt from Heinbaugh, who made unannounced
visits to Murray’s stores, took pictures inside, and told employees that the stores would be
assigned to Heinbaugh in Walmart’s next realignment. Murray Compl. to Ethics Team at 2-3
(ECF No. 198-10). Murray also complained that Julie Murphy, a Walmart executive who
supervised Busby, visited two of Murray’s stores unannounced while he was on vacation,
identified many problems and blamed them on Murray’s leadership, and then did not offer
Murray an opportunity to explain the reasons for some of those problems. Id. at 2.
In October 2013, Murray sent Walmart leadership an eleven-page description of the
harassment he believed he was experiencing. Oct. 11, 2013, email from Murray (ECF 198-11).
It described the same events that were in his Ethics Team complaint, plus others, but again did
not allege that any of the behavior discriminated against any protected class. Instead, the events
Murray described amounted to the kind of “petty slights or minor annoyances that often take
place at work” and that are nonactionable. Burlington N. and Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006).
As discussed in text, Murray filed a Charge of Discrimination with the Maine Human
Rights Commission in June 2014 in which he said that Heinbaugh and Robinson created a
hostile work environment with a series of racist and sexist comments. The Charge claimed that
Murray reported those concerns to Walmart in his September and October 2013 complaints.
Charge of Discrimination ¶ 8 (ECF No. 198-8). In fact, those 2013 complaints made no mention
7

16

(b) Adverse Employment Action

There is no dispute that Murray received at least one adverse employment
action: his termination on October 4, 2016.

To be an adverse employment

action, the event must have been significant enough that it “might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006). “This is an objective test and should be judged from the perspective of a
reasonable person in the plaintiff’s position, considering all the circumstances.
Examples of adverse employment actions in the retaliation context include
termination of employment, a demotion evidenced by a decrease in wage or
salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices that might be unique to a
particular situation.” Morales-Vallellanes v. Potter, 605 F.3d 27, 36 (1st Cir.
2010) (internal quotation marks and citations omitted). Murray’s termination
qualifies as an adverse employment action.
Murray claims that his 2014 performance evaluation was also an adverse
action. See Second Am. Compl. ¶ 38 (ECF No. 159). That evaluation gave him
the same overall rating as he received the previous year. Performance Eval.
Compendium at 20 (summary of 2014 evaluation), 26-27 (summary of 2013
evaluation) (ECF No. 198-14). Murray’s salary, benefits, and responsibilities
were not affected, and he was not disciplined. Busby Decl. ¶¶ 5, 16 (ECF No.
199-7); see Defs.’ SMF ¶ 110; Pl.’s Resp. ¶ 110. The evaluation did not constitute

of racist or sexist comments. See Murray Compl. to Ethics Team (ECF No. 198-10); Oct. 11,
2013, email from Murray (ECF 198-11).
17

the kind of adverse action that “might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Burlington Northern, 548
U.S. at 68; see also Morales-Vallellanes, 605 F.3d at 36.
Murray attempts to overcome this assessment with an argument that his
2014 evaluation should have been higher than 2013’s and, if it had been, his
salary would have increased.8

See Pl.’s Resp. ¶ 110.

This argument is not

supported by the record. The overall evaluation was made up of many individual
“competency areas,” each of which was scored on a five-level scale.
Performance Eval. Compendium at 1, 20 (ECF No. 198-14).

See

Murray’s

“competency area” ratings were all the same in 2014 as in 2013 except for the
“results leadership: execution and results” category, in which Murray was
downgraded two levels. Defs.’ SMF ¶¶ 105-06; Pl.’s Resp. ¶¶ 105-06. In a selfevaluation, Murray had downgraded himself in the same category, although only
by one level. Defs.’ SMF ¶ 107; Pl.’s Resp. ¶ 107. In another category, “diversity
and inclusion,” Murray claims that he should have received a higher rating in
2014 because he followed all the instructions he had received the year before
regarding how to boost his performance in that area. Pl.’s Resp. ¶ 114. He
contends that the higher “diversity and inclusion” rating, combined with a
smaller downgrade in the “results leadership” category, would have increased
his overall rating and thus increased his pay. Pl.’s Resp. ¶¶ 104, 110, 114. But

Murray also claims that Busby retaliated against him by writing in the 2014 performance
evaluation that Murray was in the 0.00 percentile for market managers. Second Am. Compl.
¶ 38 (ECF No. 159). Busby testified at deposition that this was a typo that occurred on multiple
employees’ evaluations. Busby Dep. at 267:25-268:14 (ECF No. 198-20). Murray cites no
evidence to the contrary. And there is no evidence that this erroneous percentile disadvantaged
Murray in any way.
8

18

Murray does not cite evidence showing that he did all that was required for a
higher “diversity and inclusion” rating, or that those two changes would have
resulted in a higher salary.
Murray additionally claims that Walmart “constructively discharged” him
in April 2015. Second Am. Compl. ¶ 52 (ECF No. 159). This allegation appears
to refer to Walmart’s decision to fill Murray’s market manager position with
someone else after he had exhausted his protected medical leave time and
remained on unpaid leave. See Email from David Minsky, Busby Decl. Ex. J at
3-4 (ECF No. 199-17); Tr. of call 1660, Albert Decl. Ex. N at 3-4 (ECF No. 20024). Under Supreme Court caselaw, however, Murray was not constructively
discharged because he did not resign from Walmart but remained an employee.
Green v. Brennan, 136 S. Ct. 1769, 1777 (2016) (in a claim for constructive
discharge, “[a] plaintiff must . . . show that he actually resigned”).
A number of other events that Murray cites similarly do not rise to the level
of adverse employment action.9 The Supreme Court has made clear that adverse
action requires “material adversity,” and it distinguishes “significant from trivial
harms.” Burlington Northern, 548 U.S. at 68 (emphasis in original). “Minor
disruptions in the workplace, including petty slights, minor annoyances, and
simple lack of good manners, fail to qualify” as adverse employment actions.
Morales-Vallellanes, 605 F.3d at 36. I detail these other events here.
Market Realignment. Murray claims that a “market realignment” in early

2014 was retaliation against him. Second Am. Compl. ¶¶ 36-37 (ECF No. 159).

Some of these events are outside the 300-day period permitted by Title VII and the Maine
Human Rights Act and are therefore time-barred. See note 4, supra.
9

19

Walmart occasionally realigned the boundaries of its internal markets, changing
which stores were supervised by which market manager. In 2014, it eliminated
a market that included stores in New Hampshire and Vermont, distributed those
stores into other markets, and made various other changes. Busby Decl. ¶¶ 1819 (ECF No. 199-7). Murray’s market gained two stores in New Hampshire and
lost two in Maine. Id. ¶ 18. He claims this realignment adversely affected his
market and benefited his neighboring market managers, Heinbaugh and
Robinson, but he neither explains nor cites any evidence showing why or how
this alignment adversely affected him. See Pl.’s Resp. ¶ 43. For all the record
shows, the addition of these two stores might have been a positive for Murray,
offering him opportunities he did not have before; there is simply no evidence
either way. The record does not show that this was an adverse action.
Unannounced Visit. In another act of alleged retaliation, Murray said that

Julie Murphy, a Walmart executive who supervised Busby, visited at least one of
Murray’s stores unannounced on September 22, 2013, while he was on vacation.
Pl.’s SAMF ¶ 287. Murphy identified many problems with the store and appeared
to blame them on Murray’s leadership. See Email from Murphy, Busby Decl. Ex.
B (ECF No. 199-9). Murray claims Murphy did not offer him an opportunity to
explain, or attempt to understand the reasons for, some of those problems. Pl.’s
SAMF ¶ 287. But while Murray may have been unhappy with the visit, the
evidence does not show that the visit led to any ill effects in the long run. On
the same day as Murphy’s visit, Murray submitted a plan to address the
problems she identified and “assur[ed]” her that he would “keep the focus” on
the problems. Busby Decl. Ex. E (ECF No. 199-12). Murphy thanked him for
20

following up. Id. Murray was not disciplined, and his overall rating in his next
evaluation (the 2014 evaluation discussed above) did not change. Murray does
not point to any evidence of negative effects resulting from Murphy’s visit. See
Paquin v. MBNA Mktg. Sys., Inc., 233 F. Supp. 2d 58, 67 (D. Me. 2002) (“[N]ot
everything that makes an employee unhappy constitutes an actionable adverse
action.”).
Vendor Payment. Murray also cites an instance when Walmart delayed

paying a vendor.

In the spring of 2014, one of Murray’s stores was being

remodeled, and Murray needed to hire temporary staff to help. The staffing
agency he used had not been pre-approved by Walmart—a requirement before
Walmart would pay the vendor. Busby Decl. ¶¶ 39-40 (ECF No. 199-7). Murray
contends that Busby had authority to approve the vendor quickly but Walmart
instead sent the request through a slower corporate channel in retaliation for
Murray’s complaints.

Pl.’s SAMF ¶ 296.

Murray says the delayed vendor

payment hurt his professional reputation and caused him a stress reaction. Pl.’s
Resp. ¶ 166. The vendor was eventually approved and paid, but several weeks
later than it might have been had the process moved faster. Defs.’ SMF ¶ 164;
Pl.’s Resp. ¶ 164. This delay did not affect Murray’s performance evaluations or
his market’s financial metrics. Busby Decl. ¶ 42; see also Defs.’ SMF ¶ 166; Pl.’s
Resp. ¶ 166. And Murray does not support his claim about his reputational
damage and stress with any evidence. See Pl.’s Resp. ¶ 166. Even if they were
supported by evidence, those effects are closer to “petty slights or minor
annoyances” than the kind of “material adversity” that constitutes an adverse
employment action. Burlington Northern, 548 U.S. at 68.
21

Discrimination Investigation.

Murray says that Walmart retaliated by

dragging its feet in investigating his discrimination complaint, noting that he
filed his initial internal complaint in September 2013 but the investigation did
not begin until December 2013 or January 2014. See Pl.’s Ans. to Interrogs. at
18 (ECF No. 198-3). He cites no evidence to show that the delay caused him any
actual harm.10
Markdown Investigation. Murray claims that he faced retaliation in the

form of an internal investigation into the markdown practices of the store in
Waterville, Maine. Murray Dep. at 200:25-201:8 (ECF No. 198-5). This store
had been in Murray’s market until it was moved to Heinbaugh’s in the 2014
realignment.

Upon taking over management of the store, Heinbaugh raised

concerns that inventory that should have been marked down (because it was
unsellable for various reasons) had not been. Heinbaugh Dep. at 90:18-91:11
(ECF No. 199-4). Walmart initiated an investigation of the store’s markdown
practices, and Murray was interviewed as part of the inquiry. Murray claims
that Walmart knew at the time of this interview that Murray was represented by
counsel but did not inform him his attorney could be present. Pl.’s Resp. ¶ 138.
He does not cite record evidence for this statement. Regardless, Murray admitted
at his deposition that he was never disciplined in connection with the markdown
investigation and no one told him he did anything wrong. Murray Dep. at 201:9-

Walmart claims that its Global Investigation office did not begin an inquiry sooner because
Murray’s initial complaints did not make clear he was raising concerns about harassment and
discrimination. Defs.’ SMF ¶ 237. This explanation accords with the record, which demonstrates
that Murray’s September and October 2013 complaints said nothing about discrimination on the
basis of any protected class; he did not allege race or sex discrimination until his January 2014
message. See note 7, supra.
10

22

14 (ECF No. 198-5). The record does not show that he suffered any negative
effects.
Deposited Funds.

Murray claims he suffered continued retaliation in

January 2017 when Walmart deposited and then withdrew $3,776.09 from
Murray’s bank account. Pl. Aff. ¶ 5 (ECF No. 224-1). Walmart’s senior director
of payroll services stated that the company had paid Murray this amount as his
final paycheck (although it later determined he was not entitled to this money
because he had been on unpaid leave, as explained further in the section below
on Murray’s claim for unpaid wages). McChristian Decl. ¶¶ 7-8 (ECF No. 2007). The “amount was direct deposited automatically” into Murray’s account, just
as his wages had been before he began his leave. Id. ¶ 8. But then, while the
money was “in transit,” Walmart said it “reversed the direct deposit” and paid
the $3,776.09 to Murray by check instead. Id. ¶¶ 9, 14. Murray acknowledged
receiving the check. Pl.’s Resp. to Defs.’ Request for Admissions at 2 (ECF No.
226-5).

It is not clear how Murray believes he was disadvantaged by these

events, and the evidence does not show that Walmart deprived Murray of
anything of value.
Parking Lot Death. Murray claims that Walmart retaliated against him “for

reporting violations of the law” after a woman was hit and killed by a truck in
the parking lot of one of Murray’s stores in 2014. Murray Aff. ¶ 7 (ECF No. 2241). Neither the woman nor the truck was associated with Walmart, and Murray
was not at the store when the woman was killed. Richard Decl. ¶¶ 11-12 (ECF

23

No. 200). Murray does not explain how Walmart retaliated against him regarding
this incident, and there is no evidence in the record that it did.11
While each of these allegations, assuming they are true, may “indicate that
the plaintiff's workplace was not an idyllic retreat,” Martin v. Inhabitants of City
of Biddeford, 261 F. Supp. 2d 34, 38 (D. Me. 2003), they are not so severe that
they “might have dissuaded a reasonable worker from making or supporting a
charge of discrimination,” Burlington Northern, 548 U.S. at 68. Individually or
collectively, they are not adverse employment actions that would support a claim
of retaliation.
That leaves three instances of protected conduct—the internal report
Murray filed in January 2014, his formal Charge of Discrimination in June 2014,
and this lawsuit in August 2015—and one adverse employment action: Murray’s
termination in October 2016.
(c) Causation

To show causation in a Title VII retaliation case, a plaintiff-employee must
establish that his protected conduct was a “but-for” cause of the adverse
employment action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362
(2013). In this case, that means Murray must point to evidence that he would
not have been fired but for his protected conduct.

Showing only that his

protected conduct was a “motivating” factor—possibly one of several factors—is
not enough. Id. at 360; see also Ponte v. Steelcase Inc., 741 F.3d 310, 321 (1st

There is also no evidence that Murray reported anything illegal. His affidavit cites two
documents—a note to Busby and a transcript of a call between the two—that only show Murray
doubted statements from the police that the woman was not intoxicated. See Murray Aff. ¶ 7
(ECF No. 224-1); Note to Busby (ECF No. 226-3); Tr. of call 1665 (ECF No. 226-4).
11

24

Cir. 2014) (recognizing the Supreme Court “rejected the less stringent standard
that the plaintiff must show only that retaliation was a ‘motivating’ factor”).
Sometimes “[v]ery close temporal proximity between protected activity and
an adverse employment action” can support causation. Sanchez-Rodriguez v.
AT&T Mobility Puerto Rico, Inc., 673 F.3d 1, 15 (1st Cir. 2012) (finding a threemonth gap between the plaintiff’s EEOC complaint and his adverse employment
action “close enough to suggest causation, especially given the inferences we
must draw in [the plaintiff’s] favor” at the summary judgment stage).

Here,

however, Murray was fired 33 months after he first reported his concerns about
discrimination and a hostile work environment, and more than a year after he
filed this lawsuit. That timing does not support causation based on temporal
proximity.
Murray could also satisfy his causation burden by pointing to other kinds
of evidence, direct or circumstantial, that Walmart fired him because of his
protected activities. But the record provides no direct evidence—no emails, for
example, between Walmart executives saying they planned to get rid of Murray
because of his complaints.

There is also no circumstantial evidence—no

indications that Walmart officials were angered or irritated, for example, by
Murray’s reports. To the contrary, they appear to have taken the allegations
seriously, instituting an investigation into Murray’s claims that involved
interviewing witnesses and reviewing emails and text messages. Patton Dep. at
49:18-50:2 (ECF No. 199).

25

I conclude that Murray has failed to make a prima facie case that his
protected conduct was a “but-for” cause of his termination. As a result, Murray
is unable to maintain his claim under Title VII.
ii. Step Two: Legitimate Nondiscriminatory Reasons

Even if Murray had made a prima facie case, Walmart has cited multiple
nondiscriminatory reasons for its termination of Murray.

Walmart’s stated

reasons for firing Murray were his surreptitious recordings of phone
conversations with colleagues and his requests for ongoing leave with no
reasonably anticipated return date. Termination Letter From Morris (ECF No.
228-4).

These are two legitimate, non-discriminatory reasons for Murray’s

termination. Walmart satisfies its burden at step two. See Valentin-Almeyda v.
Mun. of Aguadilla, 447 F.3d 85, 95 (1st Cir. 2006).
iii. Step Three: Pretext

If I reached this stage, Murray would have to “show that the proffered
legitimate reason is in fact a pretext and that the job action was the result of the
defendant's retaliatory animus.” Id. Murray’s filings do not expressly state a
pretext argument.

However, he is a pro se party, and while I must “avoid

becoming the lawyer for the unrepresented plaintiff,” Clarke v. Blais, 473
F. Supp. 2d 124, 129 (D. Me. 2007), I may still “seek to reassure [my]self by some
examination of the record before granting summary judgment against a pro se
litigant,” Fed. R. Civ. P. 56(e)(4) advisory committee’s note to 2010 amendment.
This flexibility coincides with my general obligation at step three of the
McDonnell Douglas framework to “look at the total package of proof offered by
the plaintiff,” Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 174 (1st Cir. 2003),
26

“having in mind that courts should exercise particular caution before granting
summary judgment for employers on such issues as pretext,” Santiago-Ramos
v. Centennial P.R. Wireless Corp., 217 F.3d 46, 54 (1st Cir. 2000). After review,
I find that the evidence cannot support a conclusion that Walmart’s reasons are
pretextual.
There are several ways to demonstrate pretext. “One method is to show
that discriminatory comments were made by the key decisionmaker or those in
a position to influence the decisionmaker.” Id. at 55. Phil Morris, the Walmart
human resources executive who signed the letter informing Murray that he was
fired, offered uncontradicted deposition testimony that he made the ultimate
termination decision. Morris Dep. at 6:25-7:1 (ECF No. 199-6). Murray offers
no evidence that Morris made any comments or took any actions indicating
discriminatory or retaliatory intentions. Murray also offers no evidence to show
that the Walmart employees he accuses of discrimination and retaliation
influenced Morris’s decision.
“Another method of establishing pretext is to show that [the defendant’s]
nondiscriminatory

reasons

were

after-the-fact

justifications,

provided

subsequent to the beginning of legal action.” Santiago-Ramos, 217 F.3d at 56.
The two reasons Walmart now offers for firing Murray—his surreptitious
recordings and indefinite leave—are the same reasons Morris gave when he told
Murray he was fired.

Termination Letter From Morris (ECF No. 228-4).

Walmart’s story has stayed the same.
Finally, Murray could “also establish pretext by showing weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
27

employer’s proffered legitimate reasons such that a factfinder could infer that
the employer did not act for the asserted non-discriminatory reasons.” SantiagoRamos, 217 F.3d at 56 (internal quotation marks omitted).

The summary

judgment record demonstrates no such problems with Walmart’s explanation.
Murray admitted to recording phone calls with his colleagues, often during
internal business discussions, more than 100 times. Murray Dep. at 138:6-25
(ECF No. 198-5). Walmart claims those recordings violated its policies against
“record[ing] the company’s confidential or proprietary data” or recording phone
conversations with employees without their consent. Defs.’ SMF ¶¶ 242-45.
Walmart also states that Murray’s multiple extensions of his leave of
absence amounted to a request for indefinite leave and were unreasonable. Mot.
for Summ. J. at 20 (ECF No. 198-1). After initially requesting a leave of absence
in January 2015, Murray extended the leave four times, without offering any
concrete reason to believe he would likely be able to return to work at a definite
time. In his deposition for this case, in June 2016, Murray testified that he did
not know when he would be capable of returning to work at Walmart and that,
at that time, he did not believe he was able to work in any occupation. Murray
Dep. at 33:1-9, 39:2-5 (ECF No. 198-5). His doctor testified that the date of
return listed in Murray’s leave request was not based on any “clear diagnosis”
and was instead rooted in “hope spring[ing] eternal.” Edwards Dep. at 113:1521 (ECF No. 198-21). Walmart thus points to his continuing absence as a second
reason for firing Murray.

Neither of Walmart’s two reasons appears to be

pretextual.
28

In conclusion, Murray has not satisfied his burden under the McDonnell
Douglas framework. At step one, he has not shown causation—the evidence
does not support a conclusion that his termination was caused by his protected
activities. But even if he could show causation, Walmart satisfies step two and
Murray fails at step three because he is unable to show that Walmart’s
explanations for firing him were merely pretextual.

Therefore, Walmart is

entitled to summary judgment on Murray’s federal (Title VII) retaliation claim.
B. Maine Whistleblowers’ Protection Act

Murray claims retaliation in violation of two state laws: the Whistleblowers’
Protection Act (MWPA) and the Maine Human Rights Act (MHRA). I analyze these
laws together, since “the MWPA itself provides no private right of action,” leaving
complainants to “file a civil action under the MHRA” instead. Tripp v. Cole, 425
F.3d 5, 9 n.4 (1st Cir. 2005); see also Osher v. Univ. of Maine Sys., 703
F. Supp. 2d 51, 64 n.13 (D. Me. 2010) (“Although the MWPA provides no private
right of action, plaintiffs may file a civil action under the MHRA.”); Sullivan v. St.
Joseph’s Rehab. and Residence, 143 A.3d 1283, 1285 n.2 (Me. 2016) (“The Maine
Human Rights Act prohibits discrimination in violation of the Whistleblowers'
Protection Act, and provides employees with an avenue through which to obtain
damages as a result of retaliation under the WPA.”).
For an alleged whistleblower to prevail on a claim of retaliation, “the
plaintiff must demonstrate that ‘(1) [he] engaged in activity protected by the WPA;
(2) [he] experienced an adverse employment action; and (3) a causal connection
existed between the protected activity and the adverse employment action.’”
Theriault v. Genesis HealthCare LLC, 890 F.3d 342, 349 (1st Cir. 2018) (quoting
29

Walsh v. Town of Millinocket, 28 A.3d 610, 616 (Me. 2011)). Although the Law
Court has held that the McDonnell Douglas framework does not apply to
retaliation claims under the Maine Whistleblowers’ Protection Act, Brady v.
Cumberland Cnty., 126 A.3d 1145, 1158 (Me. 2015), the conclusions I reached
above apply equally to Murray’s state-law claims. Specifically, Murray engaged
in protected activity when he filed an internal report in January 2014, a Charge
of Discrimination in June 2014, and this lawsuit in August 2015, and his
termination was an adverse employment action. But the facts in the record do
not show that there was a causal connection between the activity and the adverse
action.
“To demonstrate a causal link sufficient to defeat a summary judgment
motion” on a retaliation claim under the MWPA, Murray must make a sufficient
evidentiary showing that his protected activity “was a substantial, even though
perhaps not the only, factor motivating [his] dismissal.” Theriault, 890 F.3d at
349; see also Brady, 126 A.3d at 1154 (requiring the plaintiff to show “the
adverse employment action was motivated at least in part by retaliatory intent”).
Although this is a more permissive standard than the “but-for” causation
required under Title VII, the result is the same. Murray was fired more than a
year after his last protected activity. He has provided no direct or circumstantial
evidence of retaliatory intent.

Murray has failed to show that his protected

activity “was a substantial . . . factor motivating [his] dismissal.” Theriault, 890
F.3d at 349. Walmart is entitled to summary judgment on Murray’s state-law
retaliation claims.
30

3. Disability Discrimination

Murray asserts claims for disability discrimination under the Americans
With Disabilities Act (ADA) and the Maine Human Rights Act.12 Second Am.
Compl. ¶ 60 (ECF No. 159). While the ADA analysis involves the McDonnell
Douglas burden-shifting framework, Tobin v. Liberty Mut. Ins. Co., 433 F.3d
100, 104 (1st Cir. 2005), it is unclear whether the MHRA requires the same
framework, see Bachelder v. MjjM Enter., Inc., 2019 WL 921443, at *14 (D. Me.
Feb. 25, 2019); see also Brady, 126 A.3d at 1158 (abandoning McDonnell
Douglas framework in MHRA retaliation case).

Ultimately, the distinction is

irrelevant in this case because Murray is unable to prevail either way.13
To carry his initial burden at step one of the ADA burden-shifting, Murray
must establish “that (1) he suffers from a disability or handicap, as defined by
the ADA . . ., that (2) he was nevertheless able to perform the essential functions
of his job, either with or without reasonable accommodation, and that (3) [the
defendant] took an adverse employment action against him because of, in whole
or in part, his protected disability.” Tobin, 433 F.3d at 104. Those are essentially
the same elements required of him to defeat summary judgment on his MHRA

12 Murray also brought a claim for disability discrimination under Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794. Second Am. Compl. ¶ 60 (ECF No. 159). Section
504 “prohibits discrimination against any qualified handicapped individual in ‘any program or
activity receiving Federal financial assistance.’” U.S. v. Hersom, 588 F.3d 60, 65 (1st Cir. 2009)
(quoting 29 U.S.C. § 794). Murray has presented no evidence that Walmart receives the requisite
federal financing. Regardless, even if the Rehabilitation Act applied to Walmart, my analysis
under that statute would be the same as under the ADA. See Pollack v. Reg’l Sch. Unit 75, 886
F.3d 75, 80 n.2 (1st Cir. 2018) (“Because courts have interpreted the relevant parts of the two
statutes consistently, and because plaintiffs make no argument that any difference between the
two statutes is relevant to this appeal, we focus our analysis on the ADA.”).
13 Since I conclude that the evidence does not show Murray suffered discrimination under the
MHRA, his claims that Walmart aided and abetted unlawful discrimination and interfered with
his exercise and enjoyment of the rights protected by the MHRA, see Second Am. Compl. ¶ 60
(ECF No. 159), also fail.

31

claim.

Whitney v. Wal-Mart Stores, Inc., 895 A.2d 309, 312 (Me. 2006)

(superseded by statute on other grounds) (“An employee plaintiff pursuing a
claim for disability discrimination must establish that first, he suffers from a
disability; second, he is otherwise qualified, with or without reasonable
accommodations, and is able to perform the essential functions of the job; and
third, he was adversely treated by the employer based in whole or in part on his
disability.”).
It is uncontested that Murray suffers from a disability, as his doctors
repeatedly attested in Murray’s requests for leaves of absence from Walmart and
motions for time extensions in this Court. But Murray fails to satisfy the second
element. He testified at his deposition that he did not believe he was well enough
to return to work as a market manager—or any other job in any occupation,
Murray Dep. at 39:2-5 (ECF No. 198-5)—and he did not know when he would be
able to. Id. at 33:1-9. At the time of his deposition, he said he was not driving
(necessary, as part of his job, to visit the stores for which he was responsible)
because of safety concerns related to his medical conditions. Id. at 44:3-45:14.
Murray’s last request to extend his leave said that he would return to work on
March 23, 2017, but his doctor testified that that date was not based on any
“clear diagnosis” and was instead rooted in “hope spring[ing] eternal.” Edwards
Dep. at 113:15-21 (ECF No. 198-21). While Murray asked to work part-time or
from home, which he described as “reasonable accommodations,” Email from
Murray, Busby Decl. Ex. J at 2-3 (ECF No. 199-17), Walmart responded without
contradiction that a person cannot do the market manager job effectively without
32

working full-time and traveling to the various stores in the market, Tr. of call
1660, Albert Decl. Ex. N at 3-4 (ECF No. 200-24); Mot. at 34-35.
Because the evidence does not show that Murray was “able to perform the
essential functions of his job, either with or without reasonable accommodation,”
Tobin, 433 F.3d at 104, Walmart is entitled to summary judgment on Murray’s
disability discrimination claims.14
4. Age Discrimination

Murray’s complaint does not explicitly allege age discrimination, see
Second Am. Compl. ¶ 60 (ECF No. 159), but as a whole it suggests he intends to
bring such a claim, id. ¶ 45; see also id. ¶ 59 (repeating the allegations in all
proceeding paragraphs); Tinkham v. Perry, 2015 WL 2092513, at *2 (D. Me.
May 5, 2015) (the court may approach “summary judgment disputes involving a
pro se party with some leniency”).

I will presume that, like his disability

discrimination claim, his age discrimination claim is based on the MHRA.15 The

Although I need not reach the question whether Walmart treated Murray adversely “based in
whole or in part on his disability,” Whitney, 895 A.2d at 312, I note that Murray also appears to
argue that Busby exhibited discriminatory animus regarding Murray’s sleep apnea. In one
instance, Murray says that Busby discussed, in front of other people, what Murray describes as
an “ADA accommodation for severe Sleep Apnea”—a hotel room the company obtained for him
during a business trip so that he would not have to share a room with another employee. Pl.’s
Ans. to Interrogs. at 27 (ECF No. 198-3). In another, after Murray joined a morning conference
call late and announced himself, Busby replied, “Oh okay then, I thought you were asleep.” Tr.
of call 1657 at 3 (ECF No. 200-23). The night before, Murray had told Busby that he was getting
home late from work and would start the next morning “a little later to get some rest.” Email
from Murray (ECF No. 198-13). Neither of these events shows discriminatory animus. The hotel
room discussion appears to be an isolated incident, and there is nothing in the record to show
what Busby said or to whom he said it. Busby himself has sleep apnea. Busby Dep. at 309:1825 (ECF No. 198-20). Busby’s comment on the conference call was clearly responding to
Murray’s previous message.
15 Walmart assumes that Murray is basing his claim on the Age Discrimination in Employment
Act of 1967, 29 U.S.C. § 621 et seq. See Mot. at 2. But unlike the MHRA—which Murray cites
repeatedly in his second amended complaint and which protects against discrimination based
on age as well as disability, 5 M.R.S.A. § 4571—nowhere does he mention the ADEA.
14

33

record does not contain evidence to support a claim that Murray suffered age
discrimination.
Murray points to two instances of alleged age discrimination. First, he
cites a 2010 email chain in which Murray wrote that he would be late to work
because he was clearing snow, and Busby replied “Your [sic] getting too old to
shovel snow; don’t be cheap, hire a snow plow man !!! :-)” Second Am. Compl.
¶ 45 (ECF No. 159); Email from Busby, Murray Dep. Ex. 12 (ECF No. 198-9).
This statement cannot support Murray’s discrimination claim because it
occurred more than 300 days before he filed his complaint with the Maine
Human

Rights

Commission

and

the

Equal

Employment

Opportunity

Commission on June 2, 2014. See 42 U.S.C. § 2000e-5(e)(1); 5 M.R.S.A. § 4611;
Ayala v. Shinseki, 780 F.3d 52, 56 (1st Cir. 2015) (“If a claimant fails to [file an
administrative complaint within the 300-day period], discrete discriminatory
acts will be time-barred, and thus not actionable, even if they are related to acts
alleged in timely filed charges.”). Even if this email were not time-barred, it does
not show discrimination. The three exclamation points, followed by a smiley
face, show that Busby (who is older than Murray, Defs.’ SMF ¶ 34; Pl.’s Resp.
¶ 34) was joking.
Second, Murray cites a comment Busby made to him in August 2014
regarding older cashiers in Murray’s stores. Busby told him to place the “college
kids,” who “were twice as productive as those cashiers that had tenure,” on the
speedy checkout lanes and to place the cashiers who have “been around 20
years, 25 years” on the non-speedy checkout lanes. Tr. of call 1621 (ECF No.
200-22). Murray admits that Busby’s comment did not reference Murray’s age.
34

Murray Dep. at 110:4-8. It does not support a claim that Walmart discriminated
against Murray based on his age.16
5. Other Discrimination

Murray asserts a claim under 42 U.S.C. § 1981, Second Am. Compl. ¶ 60
(ECF No. 159), a statute that “prohibits both public and private racial
discrimination in certain specified activities.” Garrett v. Tandy Corp., 295 F.3d
94, 98 (1st Cir. 2002); see 42 U.S.C. § 1981(a) (“All persons within the
jurisdiction of the United States shall have the same right [in a variety of
situations] . . . as is enjoyed by white citizens.”). “To state a claim under this
statute, a plaintiff must show (1) that he is a member of a racial minority, (2) that
the defendant discriminated against him on the basis of his race, and (3) that
the discrimination implicated one or more of the activities enumerated in the
statute.” Garrett, 295 F.3d at 98. Murray is not a member of a racial minority.
Murray Dep. at 85:1-6 (ECF No. 198-5). He also does not allege that Walmart
discriminated against him based on his race. Id. at 86:11-21. His claim under
42 U.S.C. § 1981 therefore fails.
6. Unpaid Wages

In addition to his retaliation and discrimination claims, Murray makes a
claim under 26 M.R.S.A. § 626 for unpaid salary and earned vacation time.
Second Am. Compl. ¶ 60B (ECF No. 159).

Murray’s complaint says that he

demanded those payments on June 16, 2017, and Walmart failed to make them

Busby’s comment does not appear to discriminate against anyone based on age, since the
cashiers with “tenure” suffered no ill effects; they were simply moved to different registers.
16

35

within the period required by statute. Id.17 But nowhere does Murray allege
what Walmart owed him. His complaint claims only that Walmart “failed to pay
Murray for his unpaid salary and earned paid vacation time.” Id.
Walmart contends that it owes nothing to Murray, and that it actually
overpaid him. Although Murray was fired October 4, 2016, Walmart failed to
enter his termination into its payroll and benefits system until January 23, 2017.
McChristian Decl. ¶ 3 (ECF No. 200-7). That delay caused Walmart to compute
Murray’s paid time off incorrectly, calculating that he had accrued additional
paid time off in the period after October 4—when, in fact, he was no longer
working at the company.

Id. at ¶ 5.

It paid Murray for that unused (and

unearned) paid time off. Id. Additionally, when Walmart terminated Murray
from its system, the fact that Murray had been on unpaid leave when he was
fired created complications; because of the way the system was set up, it required
that he be “returned to work” before he could be terminated. Id. at ¶ 7. The
administrator entered him as “returned to work,” but then delayed 11 days
before terminating him, causing the system to generate a regular earnings
payment of $6,448.65 for Murray. Id. In total, Walmart says, Murray received
$13,892.90—the net amount of the paid time off and wages—to which he was
not entitled. Id. at ¶ 14. Walmart does not seek recovery of that money.

At the time Murray was fired, 26 M.R.S.A. § 626 required an employee to make a demand of
his employer for unpaid wages, and it gave the employer two weeks from the demand in order to
pay them. 26 M.R.S.A. § 626 (1995). The statute was revised effective November 1, 2017, to
eliminate the demand requirement. Under the revised statute, the employer must pay any money
owed by the employee’s next established payday, regardless of whether the employee made a
demand. 26 M.R.S.A. § 626 (2017).
17

36

Since Murray has filed no opposition to Walmart’s motion for summary
judgment, I do not have the benefit of whatever argument Murray might make
in opposition to Walmart’s claim that he was overpaid. Murray’s complaint refers
to a demand he sent Walmart in June 2017, Second Am. Compl. ¶ 60B (ECF No.
159), which presumably would have explained what he believed he was owed
then and why, but neither party has entered that document into the record.18 A
Walmart request for admission asked Murray to identify the amount he claims
Walmart failed to pay him in violation of 26 M.R.S.A. § 626; Murray responded
only that he “has never received a comprehensive worksheet” detailing the
violation. Pl.’s Resp. to Defs.’ Request for Admissions at 20-21 (ECF No. 226-5).
In short, Murray has provided no evidence of unpaid wages.
Since there is no evidence in the record to support Murray’s claim for
unpaid wages, Walmart is entitled to summary judgment on that issue.
MOTION TO SEAL
The final issue I must decide involves Walmart’s motion to seal many of its
summary judgment filings. Defs.’ Mot. to File Under Seal (ECF No. 198). Murray
opposed the motion, and the parties fully briefed the issue. See Pl.’s Obj. to Mot.
to Seal (ECF No. 201); Defs.’ Reply in Support of Mot. to Seal (ECF No. 204); Pl.’s
Opp. to Defs.’ Reply (ECF No. 212). The Magistrate Judge, after an in camera
review, granted much of Walmart’s motion to seal but denied the motion with
respect to three documents: the motion itself (ECF No. 198) and two email chains

Parts of this letter were read in Murray’s second deposition, but not enough of it to understand
what specific arguments the letter may have made. See Murray Dep. (second) at 24:25-38:2
(ECF No. 198-15). Murray testified that the dollar amount demanded in the letter was no longer
accurate, and he declined to provide an accurate number. Id. at 25:13-26:3.
18

37

between Murray and Busby (ECF Nos. 198-9 & 198-13). Mem. Dec. & Order on
Mot. to Seal at 1 (ECF No. 242). The Magistrate Judge found the remaining
documents contained confidential business, personal, or third-party information
that warranted protection, at least at the pre-trial stage. Id. at 3-4. Walmart refiled the three non-protected documents on the public docket.

Defs.’ Add’l

Attachments (ECF Nos. 244, 244-1 & 244-2). Murray objected to the Magistrate
Judge’s decision, Obj. to Order on Mot. to Seal (ECF No. 243), and Walmart filed
a response, Response to Obj. (ECF No. 245).
Murray’s objection to the order rests on the same argument he made in
opposing Walmart’s original motion to seal: that the public has both a common
law and First Amendment right of access to Walmart’s filings. While Murray
correctly recounts the caselaw regarding the public’s right of access in general,
he does little to explain why the Magistrate Judge’s order—which expressly cited
and considered that caselaw—was incorrect with respect to the particular
documents at issue here. He does not explain why the Magistrate Judge was
wrong when he found that the protected documents contained confidential
business, personal, or third-party information—or why the public’s right of
access should overcome the documents’ confidentiality.
The Federal Rules require that I set aside the Magistrate Judge’s order only
if it “is clearly erroneous or is contrary to law.” Fed. R. Civ. Pro. 72(a). Murray
has not shown that the order was clearly erroneous or contrary to law.
CONCLUSION
After viewing the facts in the light most favorable to Murray, I conclude
that the evidence would not permit a jury to find that Walmart fired him because
38

of his protected activities or that it discriminated against him based on his age
or disability. Likewise, Murray has provided no evidence of the amount of any
unpaid wages or benefits Walmart owed him.

For these reasons, I GRANT

Walmart’s motion for summary judgment. I DENY

AS MOOT

Murray’s motion for

partial summary judgment. I AFFIRM the Magistrate Judge’s order on Walmart’s
motion to seal.
SO ORDERED.
DATED THIS 6TH DAY OF DECEMBER, 2019
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

39