APON v. ABF FREIGHT SYSTEMS INC, 2:17-cv-00335

Background

Donato Apon worked for ABF Freight for ~30 years as an Operations Supervisor and reported to Branch Manager Derek Bell.
ABF circulated a "Leadership Responsibility Hours of Service and Meal Break Compliance" form in 2016 for leadership to acknowledge DOT/FMCSA compliance obligations; the form referenced Branch/Linehaul Managers but not Apon’s title.
On Feb. 16, 2016, Bell asked Apon to sign the form; Apon told Bell he "had an issue with the form," said he was not a manager, sought clarification, and asked to speak to higher management.
Apon did not tell Bell that he believed signing the form would be illegal or fraudulent, though he later claimed that was his private belief.
Bell sent Apon home and Apon was terminated while on medical leave; Apon sued under the Maine Whistleblowers’ Protection Act (26 M.R.S.A. § 833(1)(A)), alleging unlawful discharge for reporting an alleged directive to commit an illegal act.
The district court granted ABF’s motion for summary judgment, holding Apon failed to engage in MWPA-protected activity because he never communicated a belief that the requested act was illegal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Apon engaged in MWPA-protected activity by "reporting" a suspected illegal act	Apon argues his refusals and requests for clarification amounted to a report that he reasonably believed signing the form would be illegal	ABF argues Apon never communicated any belief that signing would be illegal, so he made no protected report	Court held Apon did not engage in protected activity because he never communicated a belief the request was unlawful
Whether an employee must explicitly communicate a belief an act is illegal to invoke MWPA	Apon contends his statements and refusal implied concern about legality	ABF contends MWPA requires communication that the employee reasonably believes a law was violated	Court held MWPA protection requires communication that the employee believed the act was illegal; mere ‘‘issue’’ or request for clarification is insufficient
Whether a reasonable employer would have understood Apon's statements as reporting illegality	Apon argues circumstances would alert a reasonable employer to his legal concern	ABF argues a reasonable employer would view the statements as title/role concerns, not a claim of illegality	Court held a reasonable employer would not have understood Apon’s comments as alleging a legal violation
Whether summary judgment is appropriate on this basis	Apon urges genuine dispute as to motive and protected activity	ABF urges undisputed facts show no protected report, so judgment as a matter of law is proper	Court granted summary judgment for ABF because Apon failed the first element of a prima facie MWPA claim

Key Cases Cited

Rando v. Leonard, 826 F.3d 553 (1st Cir. 2016) (summary judgment standard; materiality and genuine dispute principles)
Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1 (1st Cir. 2010) (definition of genuine issue for trial)
Braga v. Genlyte Group, Inc., 420 F.3d 35 (1st Cir. 2005) (construe facts in nonmovant’s favor at summary judgment)
Brady v. Cumberland Cty., 126 A.3d 1145 (Me. 2015) (elements of MWPA retaliation claim; McDonnell Douglas framework not applied)
Bard v. Bath Iron Works Corp., 590 A.2d 152 (Me. 1991) (MWPA purpose and remedial scheme)
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999) (employee’s reasonable belief suffices but must be communicated)
Bodman v. Maine, Dep’t of Health & Human Servs., 787 F. Supp. 2d 89 (D. Me. 2011) (MWPA does not protect every complaint; must report belief of illegality)
Cluff-Landry v. Roman Catholic Bishop of Manchester, 156 A.3d 147 (N.H. 2017) (report exists only if a reasonable employer would understand the complaint to allege a violation of law)