MEMORANDUM DECISION AND ORDER ON MOTION FOR SUMMARY JUDGMENT
Defendant Kris-Way Truck Leasing, Inc. (“Kris-Way”) moves for summary judgment as to all of plaintiff Kevin Capalbo’s claims of whistleblower retaliation in violation of the Maine Whistleblowers’ Protection Act (“MWPA”), 26 M.R.S.A. §§ 831-40, and the Surface Transportation Assistance Act (“STAA”), 49 U.S.C. § 31105. See Defendant’s Motion for Summary Judgment (“Motion”) (Docket No. 21) at 1-2; Complaint (Docket No. 1). For the reasons that follow, I grant the Motion in part and deny it in part.
I. Applicable Legal Standards
A. Federal Rule of Civil Procedure 56
Summary judgment is appropriate “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); Santoni v. Potter,
The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett,
B. Local Rule 56
The evidence that the court may consider in deciding whether genuine issues of material fact exist for purposes of summary judgment is circumscribed by the local rules of this district. See Loe. R. 56. The moving party must first file a statement of material facts that it claims are not in dispute. See Loe. R. 56(b). Each fact must be set forth in a numbered paragraph and supported by a specific record citation. Sée id. The nonmoving party must then submit a responsive “separate, short, and concise” statement of material facts in which it must “admit, deny or qualify the facts by reference to each numbered paragraph of the moving party’s statement of material facts[.]” Loe. R. 56(c). The nonmovant likewise must support each denial or qualification with an appropriate record citation. See id. The nonmoving party may also submit its own additional statement of material facts that it contends are not in dispute, each supported by a specific record citation. See id. The movant then must respond to the nonmoving party’s statement of additional facts, if any, by way of a reply statement of material facts in which it must “admit, deny or qualify such additional facts by reference to the numbered paragraphs” of the nonmovant’s statement. See Loe. R. 56(d). Again, each denial or qualification must be supported by an appropriate record citation. See id.
Failure to comply with Local Rule 56 can result in serious consequences. “Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted.” Loe. R. 56(f). In addition, “[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment” and has “no independent duty to search or consider any part of the record not specifically referenced in the parties’ separate statement of fact.” Id.; see also, e.g., Sánchez-Figueroa v. Banco Popular de P.R.,
II. Factual Background
As a threshold matter, I note that, in their statements of material facts, the parties dispute certain points of law, including whether, pursuant to applicable United States Department of Transportation (“DOT”) regulations, Capalbo was required to maintain daily driver logbooks while employed as a so-called “yard jockey” by Kris-Way. Compare, e.g., Defendant’s Statement of Material Facts (“Defendant’s SMF”) (Docket No. 22) ¶¶ 3, 26 with Plaintiffs Responses to [] Defendant’s Statement of Material Facts (“Plaintiffs Opposing SMF”) ¶¶ 3, 26; compare also, e.g., Plaintiffs Statement of Facts (“Plaintiffs Additional SMF”) (Docket No. 35) ¶¶36, 81-82 with Defendant’s Response to Plaintiffs Statement of Facts (“Defendant’s Reply SMF”) (Docket No. 39) ¶¶36, 81-82. The parties’ conflicting interpretations of DOT regulations or other legal requirements are not “facts.” Hence, I omit them from my factual recitation. By contrast, the following are “facts”: (i) statements
With that clarification, the parties’ statements of material facts, credited to the extent that they are admissible over any objection and are either admitted or supported by record citations in accordance with Local Rule 56, with disputes resolved in favor of Capalbo as nonmovant, reveal the following relevant facts.
A. Kris-Way’s Business
Kris-Way is a Maine-based company providing truck rentals and leasing, dedicated contract carriage, and contract maintenance services. Defendant’s SMF ¶ 1; Affidavit of James Ryan (“Ryan Aff.”) (Docket No. 24) ¶ 1. It has its own trucks and drivers, leases trucks to other companies and individuals, and repairs trucks and trailers. Id. Its largest facility is in South Portland, where it employs approximately 136 drivers, mechanics, and administrative personnel. Id. It has a total of 214 employees and has been in business since 1978. IcL
B. Nature of Capalbo’s Job
Capalbo was employed by Kris-Way as a commercial truck driver from July 2006 through August 20, 2008. Defendant’s SMF ¶ 4; Plaintiffs Opposing SMF ¶ 4. He was hired to do two jobs: yard work and over-the-road work. Plaintiffs Additional SMF ¶3; Defendant’s Reply SMF ¶ 3.
During his employment with Kris-Way, Capalbo worked primarily as a “yard jockey” at the Country Kitchen warehouse terminals in Lewiston, Maine. Defendant’s SMF ¶ 24; Plaintiffs Opposing SMF ¶24. Yard work involved moving trailers between and around the bakery yards. Plaintiffs Additional SMF ¶ 4; Defendant’s Reply SMF ¶ 4. The two yards are about a half mile apart. M
Country Kitchen determines the yard jockey’s starting and ending times on any given day. Defendant’s SMF ¶ 27; Plaintiffs Opposing SMF ¶ 27. When working as a yard jockey, Capalbo was Kris-Way’s only employee assigned full time to Country Kitchen’s terminals. Defendant’s SMF ¶ 28; First Farrin Aff. ¶ 3.
C. Kris-Way’s Policies and Forms
The DOT regulates truck drivers involved in interstate commerce, including regulating how many hours a truck driver may work and how hours are logged. Plaintiffs Additional SMF ¶ 74; Defendant’s Reply SMF ¶ 74. Kris-Way has written policies that require all of its drivers to maintain driver’s logs mandated by the DOT. Defendant’s SMF ¶ 2; First Farrin Aff. ¶ 6.
Kris-Way provides all of its drivers with logbooks in which to record one month of work. Defendant’s SMF ¶ 3; First Farrin Aff. ¶ 9.
Capalbo had training in, and was familiar with, the DOT regulations governing daily and weekly hours that a driver may spend working and driving. Defendant’s SMF ¶ 5; Plaintiffs Opposing SMF ¶5. Capalbo was familiar with the DOT regulations requiring the maintenance of daily logs recording all of the driver’s activities, whether driving, working but not driving, inspecting the vehicle, taking breaks, or being off duty. Id. ¶ 6.
Capalbo understood that it was a federal crime to violate the DOT regulations concerning maintaining accurate driving logs and not exceeding allowed work hours and to falsify those logs. Defendant’s SMF ¶ 9; Plaintiffs Opposing SMF ¶ 9.
Kris-Way provided Capalbo with the Kris-Way Driver’s Handbook, which described the number of hours a driver could work and could drive during a day and a week and required that the driver know and comply with the DOT regulations governing such restrictions. Defendant’s SMF ¶ 15; First Farrin Aff. ¶ 6; Capalbo Dep. at 38.
D. Capalbo’s January 2008 Maine Department of Labor Complaint
In January 2008, Capalbo filed a complaint with the Maine Department of Labor (“MDOL”) concerning inadequate pay for overtime. Plaintiffs Additional SMF ¶ 13; Defendant’s Reply SMF ¶ 13. Capalbo believed that he deserved to be paid for hours worked in excess of 40 per week because he drove locally. Id. ¶ 14.
Kris-Way was aware that Capalbo had filed a complaint with the MDOL. Defendant’s SMF ¶ 32; Plaintiffs Opposing SMF ¶ 32. The MDOL investigated Kris-Way concerning Capalbo’s wage complaint, concluded that he was being properly paid, and informed both Kris-Way and Capalbo of its conclusion. Defendant’s SMF ¶ 33; First Farrin Aff. ¶ 18. Kris-Way had reviewed the yard jockey position in 2006 and had found it to be in compliance with MDOL regulations and exempt from overtime. Id.
E. Capalbo’s Use of Logs
From July 2006 to January 2008, Capalbo never turned in a log. Plaintiffs Additional SMF ¶ 2; Defendant’s Reply SMF ¶ 2.
Sidney Lord also worked as a yard jockey for Kris-Way. Id. ¶ 19.
Capalbo injured himself and damaged a truck in February 2008. Defendant’s SMF ¶ 66; Capalbo Dep. at 31-34.
Heath Edwards, another Kris-Way driver, filled in as a yard jockey in February 2008. Plaintiffs Additional SMF ¶35; Defendant’s Reply SMF ¶ 35. Although his timecard reflects that, on February 10, 2008, he worked 13 hours as a yard jockey, he did not log any hours worked for that day. Id.
Capalbo was the only driver employed by Kris-Way who, during the period that he worked for Kris-Way, did not regularly turn in required DOT driver’s logs. Defendant’s SMF ¶20; First Farrin Aff. ¶25.
F. Capalbo’s Reports to Supervisors Regarding Hours Worked
Capalbo worked a significant number of hours as a yard jockey, often beginning his day at 4 a.m. and not leaving until 6 p.m., working up to and in excess of 14 hours per day. Plaintiffs Additional SMF ¶ 76; Defendant’s Reply SMF ¶76.
At no time did Capalbo refuse or fail to complete his yard jockey work at Country Kitchen, regardless of the hours he was working. Id. ¶36. There were many times when Capalbo exceeded the number of hours that he was allowed to work in a day. Plaintiffs Additional SMF ¶ 5; Defendant’s Reply SMF ¶ 5.
When Capalbo was approaching the limit in hours he was allowed to work in a day he would call Clayton Farrin or Fred Wheeler, who were both dispatching. Plaintiffs Additional SMF ¶ 6; Capalbo Dep. at 52.
Lord would also notify Farrin when he was approaching the limit on his hours, and Farrin would tell him to do his job. Plaintiffs Additional SMF ¶ 24; Lord Dep. at 75.
At no time did Capalbo complain to any entity, such as the MDOL or the DOT, that he was required to work in excess of the federally allowed work time. Defendant’s SMF ¶ 37; Plaintiffs Opposing SMF ¶ 37. There is no record of Capalbo advising Kris-Way that he was approaching or about to exceed the federally permitted work hours or that he ever raised any complaint of any kind with anyone about working in excess of the federally permitted work hours. Defendant’s SMF ¶ 38; First Farrin Aff. ¶ 8.
Capalbo’s time records show that virtually all of the days on which he claimed that he worked in excess of the 14 hours allowed by the DOT occurred in the middle of 2007 and, on average, he worked about one excess hour on those days. Defendant’s SMF ¶ 63; First Farrin Aff. ¶ 37.
Farrin claims that, throughout Capalbo’s employment, Capalbo had trouble observing DOT hour limitations. Plaintiffs Additional SMF ¶ 45; Defendant’s Reply SMF ¶ 45. However, Farrin never disciplined Capalbo for not observing DOT hour limitations. Id.
G. 2008 DOT Audits
In May 2008, the DOT notified Kris-Way that it would conduct a compliance review of Kris-Way’s South Portland truck operations based upon a computer-generated accident frequency report. Defendant’s SMF ¶ 39; First Farrin Aff. ¶ 25. Kris-Way was surprised, as it has a very good safety record. Id. During the audit, both Kris-Way and the DOT determined that most of the recorded accidents giving rise to the audit were not those of .Kris-Way’s drivers, but of drivers of trucks leased from Kris-Way, which were recorded under Kris-Way’s DOT number because Kris-Way owned the trucks. 7d
In preparing for the DOT’S compliance review, Kris-Way reviewed the status of its South Portland-based drivers’ logs. Defendant’s SMF ¶ 40; First Farrin Aff. ¶ 25. Farrin performed the review because the dispatcher, whose job it was to obtain, enter, and monitor logs on a weekly
The DOT conducted its audit of Kris-Way’s South Portland office and gave Kris-Way a satisfactory rating based on the audit, indicating that Kris-Way has adequate safety management controls as required by federal law. Defendant’s SMF ¶ 41; Plaintiffs Opposing SMF ¶41.
In August 2008, the DOT notified Country Kitchen that it would conduct a compliance review of Country Kitchen’s operations on September 3, 2008, at its Auburn and Lewiston facilities. Id. ¶42. As a result, Country Kitchen notified Kris-Way that it needed to have available Kris-Way’s records for its drivers who worked for Country Kitchen for the prior six months. Id.
Farrin admits that he did not provide the DOT with the logs of all of Kris-Way’s drivers. Plaintiffs Additional SMF ¶ 55; Defendant’s Reply SMF ¶ 55. Farrin, however, claims in his affidavit that at the time he fired Capalbo, he was already in the process of making all of Kris-Way’s records available to the DOT. Id. ¶ 56. Farrin knew that one of the purposes of the DOT audit was to make sure that all of the logs were accurate. Id. ¶ 57. He did not turn in any records that were not requested by the DOT, regardless of whether they were accurate or inaccurate. Id.
H. Capalbo’s Discharge From Employment
In early August 2008, Capalbo turned in his log for the first part of August. Plaintiffs Additional SMF ¶ 50; Capalbo Dep. at 120. He turned the logs into the office box. Id. He does not know what Kris-Way did with his log entries after he turned them in. Id.
Farrin first asked Capalbo to recreate six months of logs. Plaintiffs Additional SMF ¶ 40; Capalbo Dep. at 108. Farrin then requested that Capalbo recreate only the logs for the previous weeks in August 2008. Plaintiffs Additional SMF ¶ 41; Capalbo Dep. at 108-09.
On August 19, 2008, Farrin reported to his supervisor, Ryan, Kris-Way’s Vice-President of Operations, that Capalbo was the only Auburn driver who had not been regularly filling out and turning in his daily logs. Defendant’s SMF ¶ 47; First Farrin Aff. ¶¶ 27-28; Ryan Aff. ¶¶ 10-11. Farrin told Ryan that Capalbo had said that he had turned in his daily logs for the first two weeks of August but that Farrin had looked and had not found any logs from Capalbo. Id. Farrin also reported to Ryan that, because he had had to speak to Capalbo in the past about not turning in his daily logs, he doubted that Capalbo had turned in the August daily logs. Id.
At the meeting, Ryan asked Capalbo if he had his logs for the first two weeks of August. Id. ¶ 51. Capalbo replied that he did, that they were in his truck, and that he would get them. Id. Capalbo went to his truck, returned, and delivered to Ryan a logbook that he represented contained his logs for the first 20 days of August 2008. Id. ¶ 52. The logbook contained both the first and second pages for each day, meaning that none of the logs had been turned into Kris-Way as Capalbo had stated. Id.
Ryan did a quick comparison of the logs Capalbo had given him against the time-cards Capalbo had turned in for his work on the same days. Id. ¶ 58. The logs for the first two weeks of August did not match Capalbo’s time records for those weeks. Id. ¶ 54. Capalbo had indicated in his daily logs that he had been doing work and working during hours and at locations that differed from those he had indicated on his timecards for the same days. Id. Ryan asked Capalbo why there was a difference, and Capalbo stated that he had recreated the logs that he had given to Ryan. Id. ¶ 55.
Ryan advised Capalbo that falsifying his DOT-required logs was a serious violation of federal law and a very serious matter both for him and Kris-Way if he should have an accident and be found to have improperly documented logs. Defendant’s SMF ¶ 56; First Farrin Aff. ¶ 33; Ryan Aff. ¶ 19. Capalbo admitted that he had created the new logs. Defendant’s SMF ¶ 57; First Farrin Aff. ¶ 32; Ryan Aff. ¶ 18. Ryan terminated Capalbo’s employment for turning in false logs and representing them as his actual logs. Defendant’s SMF ¶ 58; Ryan Aff. ¶ 20; Capalbo Dep. at 16, 110.
In January 2008, Farrin began keeping a secret file on Capalbo. Plaintiffs Additional SMF ¶ 16; Defendant’s Reply SMF ¶ 16.
Although Farrin claims that in 2008 he had many problems with Capalbo regarding logs and had spoken to him many
Capalbo is the only yard jockey whom Kris-Way has fired for falsifying logs. Plaintiffs Additional SMF ¶ 75; Defendant’s Reply SMF ¶ 75. Yet, there are also discrepancies between the logbooks and timecards of Lord. Plaintiffs Additional SMF ¶ 78; Exh. 7 (Docket No. 34-6) to Loranger Aff. On January 6, 2008, Lord logged that he was off duty. Id. Yet, his timecard shows that he was working as a yard jockey for Country Kitchen. Id. The same inaccuracy occurred on February 17, February 18, February 24, February 25, March 19, April 9, April 16, April 23, May 7, May 8, May 19, May 26, July 20, and July 21. Id. In fact, from January to August 2008, Lord did not once log his hours worked as a yard jockey. M
Prior to 2001, James Ryan was the Transportation Manager and was responsible for Kris-Way’s drivers. Defendant’s SMF ¶ 10; Ryan Aff. ¶ 1. In that role, Ryan had previously terminated four other drivers for falsifying logbooks. Defendant’s SMF ¶ 10; Ryan Aff. ¶ 6.
Capalbo filed a complaint with the Maine Human Rights Commission (“MHRC”) that he had been illegally terminated from Kris-Way. Plaintiffs Additional SMF ¶ 37; Defendant’s Reply SMF ¶ 37. He believed that he was wrongly fired because Farrin had asked him to recreate his logs and then fired him for recreating them. Plaintiffs Additional SMF f 38; Capalbo Dep. at 103.
Capalbo did not know why or when the DOT’S audit of Kris-Way’s records was to be conducted. Defendant’s SMF ¶ 60; Capalbo Dep. at 111, 12 l.
Lord had heard rumors that Capalbo had gone to the DOT to complain about Kris-Way’s violations of DOT rules. Plaintiffs Additional SMF ¶ 59; Defendant’s Reply SMF 59.
At the meeting in the pickup truck, Farrin handed Lord a piece of paper with dates highlighted. Plaintiffs Additional SMF ¶ 63; Lord Dep. at 118-19. Farrin told Lord that he needed to recreate logs for the highlighted dates when he was working in the yard because the DOT was coming down on Kris-Way. Id.
III. Discussion
Capalbo claims that he was fired for engaging in protected activity, in violation of the MWPA (Count One) and the STAA
He alleges that Kris-Way terminated his employment “because he had complained about [Kris-Way’s] illegal activity; because he had filed a complaint with [the] MDOL; because [Kris-Way] believed that he had reported it to [the] DOT; because [Kris-Way] believed that he was about to cooperate with the DOT in its upcoming audit; and/or because [Kris-Way] believed that he was about to file a complaint with the DOT.” Id. ¶ 12.
Kris-Way seeks summary judgment as to each of four “theories for recovery”: that Capalbo was fired because (i) Kris-Way believed that he was “about to report” violations to the DOT and was “about to cooperate” with a pending DOT audit (the “DOT theory of recovery”), (ii) he had filed the MDOL complaint (the “MDOL theory of recovery”), (iii) he complained to his supervisor that he was working hours in excess of DOT regulations (the “excessive hours theory of recovery”), and (iv) he refused to recreate six months of logs and complained to his supervisors that fraudulently completing logbooks was illegal (the “logbook theory of recovery”). See Motion at 1-2; Defendant’s Reply to Plaintiffs Opposition to Motion for Summary Judgment (“Reply”) (Docket No. 40) at 2.
A. The Elements of an MWPA Case The MWPA provides, in relevant part:
1. Discrimination prohibited. No employer may discharge, threaten or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because:
A. The employee, acting in good faith, or a person acting on behalf of the employee, reports orally or in writing to the employer or a public body what the employee has reasonable cause to believe is a violation of a law or rule adopted under the laws of this State, a political subdivision of this State or the United States[.]
26 M.R.S.A. § 833.
“The MWPA prohibits an employer from taking adverse action against an employee who reports a suspected violation of a law or rule.” LePage v. Bath Iron Works Corp.,
“To establish a prima facie case of unlawful retaliation under state and federal law, [a plaintiff] must show that (1) she engaged in an activity protected by the applicable statute; (2) she suffered an adverse employment action; and, (3) the adverse employment action was causally eon
“Following the shifting burdens analysis described in McDonnell Douglas Corp. v. Green,
B. The Elements of an STAA Case
The STAA provides, in relevant part:
a) Prohibitions. — (1) A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because—
(A)(i) the employee, or another person at the employee’s request, has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard, or order, or has testified or will testify in such a proceeding; or (ii) the person perceives that the employee has filed or is about to file a complaint or has begun or is about to begin a proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard, or order; [or]
(D) the employee cooperates, or the person perceives that the employee is about to cooperate, with a safety or security investigation by the Secretary of Transportation, the Secretary of Homeland Security, or the National Transportation Safety Board[.]
49 U.S.C. § 31105. The STAA “was enacted in 1983 to encourage employee reporting of noncompliance with safety regulations governing commercial motor vehicles.” Brock v. Roadway Express, Inc.,
The showings required of employees and employers pursuant to the STAA are similar to those required pursuant to the MWPA:
A prima facie case of unlawful termination under the STAA requires a showing that the employee engaged in protected activity, that the employee was subjected to adverse employment action, and that there was a causal connection between the protected activity and the adverse action. If a complainant makes out a prima facie case, the employermay rebut that showing with evidence of a legitimate, non-retaliatory reason for the adverse employment action. The burden then shifts back to the complainant to prove that the proffered reason is actually a pretext for unlawful retaliation.
R & B Transp., LLC v. United States Dep’t of Labor, Admin. Review Bd.,
C. First Theory: About To Report or Cooperate
Kris-Way seeks summary judgment as to Capalbo’s first theory of recovery, the DOT theory, on grounds that (i) the MWPA provides no protection for employees who are about to report but have not actually done so, and (ii) the STAA provides no protection unless an employee is both on the verge of reporting a violation and his or her employer perceives that he is about to do so, neither of which Capalbo can establish. See Motion at 14-15; Reply at 5-6.
1. MWPA
Capalbo does not dispute that the DOT theory of recovery is not cognizable pursuant to the MWPA. See Opposition at 2, 8. In any event, Kris-Way is correct. The MWPA expressly protects actual, not anticipated, oral or written reports to the employer or a public body. See 26 M.R.S.A. § 833; see also, e.g., Costain v. Sunbury Primary Care, P.A.,
Kris-Way accordingly is entitled to summary judgment as to Count One to the extent predicated on Capalbo’s first theory of recovery, the DOT theory.
2. STAA
I reach a different conclusion with respect to the viability of Capalbo’s DOT theory of recovery pursuant to the STAA. Kris-Way contends that, in order to claim the protections of the STAA, an employee must show both that (i) he or she was “on the verge” of reporting a violation and (ii) the employer was aware that he or she was about to do so. See Motion at 9. It seeks summary judgment as to the DOT theory of recovery on the bases that Capalbo cannot prove that he was “on the verge” of making a report to, or coopei’ating with, the DOT, see id. at 2, or that Kris-Way had any concern that he was about to report to the DOT, see id. at 15.
Kris-Way acknowledges that there is no caselaw construing the meaning of the “about to file” provision of the STAA. See id. at 9. However, it argues that this court should interpret that provision in the same manner as courts construing a “nearly identical” provision in the Seaman’s Protection Act and an “about to report” provision in the Michigan Whistle-Blowers’ Protection Act. See id. at 9-11.
Kris-Way’s argument is unpersuasive. The relevant portion of the Seaman’s Protection Act applies in circumstances in which “the seaman in good faith has reported or is about to report to the Coast Guard or other appropriate Federal agency or department that the seaman believes that a violation of a maritime safety law or regulation prescribed under that law or regulation has occurred[.]” 46 U.S.C. § 2114(a)(1)(A). Similarly, the Michigan Whistle-Blowers’ Protection Act applies, in relevant part, in circumstances in which an employee or a person acting on his or her behalf “reports or is about to report, verbally or in writing, a violation or a
The STAA is materially distinguishable, affording protection in circumstances in which an employer “perceives that the employee has filed or is about to file a complaint or has begun or is about to begin a proceeding related to a violation[.]” 49 U.S.C. § 31105(a)(l)(A)(ii) (emphasis added). The statute is devoid of language requiring that an employee actually have filed, or even have been on the verge of filing, a report or complaint.
A reasonable trier of fact crediting Capalbo’s evidence and drawing all reasonable inferences therefrom could conclude that Kris-Way (through supervisor Farrin) perceived that Capalbo had filed a complaint with the DOT, see Plaintiffs Additional SMF ¶ 60; Lord Aff. ¶ 3, and/or that Capalbo was about to file a complaint and cooperate with the DOT audit, in view of the earlier perceived complaint triggering the audit, see id., and Capalbo’s complaint on August 18, 2008, two days before his discharge and shortly before the DOT audit, that the requested recreation of his logbooks was illegal, see Plaintiffs Additional SMF ¶ 42; Capalbo Aff. ¶ 2.
Accordingly, Kris-Way’s bid for summary judgment as to Count Two, to the extent predicated on Capalbo’s first theory of recovery, the DOT theory, must be denied.
D. Second Theory: Filing of MDOL Complaint
Kris-Way seeks summary judgment as to Capalbo’s second theory of recovery, the MDOL theory, on grounds that (i) he cannot make out a prima facie case of a causal link between his filing of an MDOL complaint and his firing and (ii) a wage complaint is not a protected activity pursuant to the STAA. See Motion at 15-17; Reply at 2-4.
1. MWPA
As Kris-Way points out, see Motion at 16, seven months elapsed between the filing of Capalbo’s MDOL wage complaint, of which Kris-Way was aware, and Capalbo’s discharge, see Plaintiffs Additional SMF ¶ 13; Defendant’s Reply SMF ¶ 13; Defendant’s SMF ¶ 32; Plaintiffs Opposing SMF ¶32; Defendant’s SMF ¶ 58; Ryan Aff. ¶ 20. This is too great a lapse in time to permit an inference of retaliatory termination based on timing alone. See, e.g., Ahern v. Shinseki,
Capalbo does not dispute this point of law, but rejoins that Kris-Way subjected him not only to the adverse action of employment termination in August 2008 but also to a series of adverse disciplinary actions commencing the month after the filing of the MDOL complaint. See Opposition at 11. He cites, inter alia, Valentín-Almeyda v. Municipality of Aguadilla,
As Kris-Way observes, see Reply at 3, Capalbo confronts an insurmountable obstacle in relying on those alleged disciplinary actions: he denies that they occurred, see Plaintiffs Additional SMF ¶ 18; Defendant’s Reply SMF ¶ 18; Plaintiffs Additional SMF ¶ 48; Farrin Dep. at 61. Taking him at his word, he was subjected to no adverse disciplinary actions until his discharge in August 2008. Therefore, he falls short of demonstrating the existence of a triable issue as to whether he was discharged for filing an MDOL wage complaint in January 2008, warranting summary judgment in Kris-Way’s favor on Count One to the extent predicated on Capalbo’s second theory of recovery, the MDOL theory.
2. STAA
As Kris-Way points out, and Capalbo does not dispute, wage complaints are not within the sphere of protected activities for purposes of the STAA. See Motion at 16; Opposition at 14-17; 49 U.S.C. § 31105(a)(l)(A)(i)-(ii) (protecting activity or perceived activity “related to a violation of a commercial motor vehicle safety or security regulation, standard, or order”); Zurenda v. United States Dep’t of Labor, No. 98-4298,
Thus, even if Capalbo had made out a triable issue of a causative link between his filing of his MDOL complaint and his discharge, summary judgment still would be warranted as to Count Two, to the extent predicated on Capalbo’s second theory of recovery, the MDOL theory, on the ground that he fails to make out a prima facie case that, in filing his MDOL complaint, he engaged in a protected activity for purposes of the STAA.
Kris-Way accordingly is entitled to summary judgment as to Counts One and Two to the extent predicated on Capalbo’s second theory of recovery, the MDOL theory.
E. Third Theory: Complaint About Excess Hours
Kris-Way seeks summary judgment as to Capalbo’s third theory of recovery, the excessive hours theory, on the basis, inter alia, that the reports in question were made in conformity with Kris-Way’s job requirements rather than constituting protected activity for purposes of either the MWPA or the STAA. See Motion at 17-21; Reply at 4-5.
1. MWPA
Kris-Way cites caselaw interpreting the federal Whistleblower Protection Act, other states’ whistleblower protection
Without confronting the force of Kris-Way’s argument, Capalbo contends that, pursuant to the plain language of the MWPA, his evidence concerning his reports that he was approaching his maximum allowable hours suffices to create a triable issue of fact as to whether he engaged in protected activity. See Opposition at 9-10.
I find no case considering whether the making of a required report constitutes a protected activity for purposes of the MWPA. Nonetheless, the Law Court has stated that its “construction of the MHRA and [MJWPA has been guided by federal law[.]” Currie v. Industrial Sec., Inc.,
It is undisputed that Kris-Way told Capalbo in writing and orally that he shared responsibility for monitoring his hours and that he was to notify his supervisor whenever he was in danger of violating DOT regulations regarding the maximum hours of work. See Defendant’s SMF ¶ 17; Plaintiffs Opposing SMF ¶ 17. Capalbo’s evidence reveals that he did just that, variously notifying Farrin, Wheeler, Ryan, and his immediate supervisors at the bakery yard that he was about to exceed his maximum hours. See, e.g., Plaintiffs Additional SMF ¶¶ 6-10; Capalbo Dep. at 52-54, 113; Defendant’s Reply SMF ¶ 10. There is no evidence that, on those occasions that Capalbo was directed to continue working beyond his maximum hours, he complained to anyone about the illegality of that directive. He never refused or failed to complete his yard jockey work at Country Kitchen, regardless of the hours that he was working. See Defendant’s SMF ¶ 36; Plaintiffs Opposing SMF ¶ 36. Indeed, he states that he had to work excessive hours to support his family. See Plaintiffs Additional SMF ¶ 9; Capalbo Dep. at 54.
No reasonable trier of fact could conclude that the reports described by Capalbo, which Kris-Way required of him, constituted conduct in opposition to an unlawful employment practice of Kris-Way. Hence, they were not protected activity for purposes of the MWPA. Kris-Way accordingly demonstrates its entitlement to summary judgment as to Count One to the extent predicated on Capalbo’s third theory of recovery, the excessive hours theory.
2. STAA
Capalbo does not dispute that his reports that he was about to exceed his maximum hours were not protected activity under the STAA. See Opposition at 14-17. In any event, for the reasons dis
F. Fourth Theory: Complaint Concerning Logbooks
Capalbo contends that he marshals sufficient evidence to raise a triable issue that he was discharged in violation of both the MWPA and the STAA for refusing to carry out Farrin’s illegal directive that he recreate six months’ worth of logbooks. See Opposition at 9, 15-16. Kris-Way seeks summary judgment as to this fourth theory of recovery, the logbook theory, on grounds that (i) Capalbo’s assertion that Farrin demanded that he recreate six months’ worth of logs is inherently incredible, (ii) Capalbo fails to demonstrate that Kris-Way’s reason for discharging him was pretextual, and (iii) his allegations of pretext fail, in any event, because Ryan, rather than Farrin, made the decision to discharge him. See Reply at 7-10.
1. Showing of Protected Activity
As a threshold matter, Kris-Way argues that no reasonable fact-finder could find that Capalbo refused Farrin’s alleged request to recreate six months’ worth of logs. See Reply at 7-8. It asserts that (i) Capalbo should have had copies of his logbooks for the first two weeks of August if, as he contends, he turned them in, (ii) Capalbo initially testified that he was asked to recreate only two weeks’ worth of logs and then altered his testimony, but was unable to provide any explanation for the change, (iii) it is incredible that Kris-Way would demand that Capalbo recreate six months’ worth of logs when Capalbo allegedly had turned in three months’ worth of logs, (iv) if Farrin wanted six months’ worth of logs for the DOT audit, he would have provided Capalbo his time-cards so that the DOT would not easily discover the fabrication, and (v) the fact that Capalbo did recreate two weeks’ worth of logs, also an illegal act, undermines his claim that he refused to recreate six months’ worth. See id.
Kris-Way makes a strong case; however, I do not find Capalbo’s version of events so inherently incredible as to present no triable issue as to whether he engaged in protected activity. A reasonable fact-finder, crediting his version of events and drawing reasonable inferences therefrom, could conclude that (i) Kris-Way never required Capalbo to fill out logs for yard jockey work, see Plaintiffs Additional SMF ¶ 29; Capalbo Dep. at 80, (ii) Farrin had affirmatively directed yard jockeys not to keep logbooks, see Plaintiffs Additional SMF ¶ 20; Defendant’s Reply SMF ¶20, (iii) Farrin knew that one of the purposes of the Auburn audit was to review the past six months’ worth of Country Kitchen yard jockeys’ logbooks for accuracy, see Defendant’s SMF ¶ 42; Plaintiffs Opposing SMF ¶ 42; Plaintiffs Additional SMF ¶ 57; Defendant’s Reply SMF ¶ 57, (iv) Farrin knew that Kris-Way did not have six months’ worth of Capalbo’s logbooks, see Defendant’s SMF ¶ 44; Plaintiffs Opposing SMF ¶44, and (v) Farrin accordingly directed Capalbo to recreate six months’ worth of logbooks and, when Capalbo protested the illegality of doing so, asked him to recreate only two weeks’ worth, see Plaintiffs Additional SMF ¶¶ 41^12; Capalbo Dep. at 108-09; Capalbo Aff. ¶2.
2. Showing of Pretext
Kris-Way next argues that its demand that Capalbo maintain logs cannot be viewed as the product of a retaliatory animus because Capalbo was in fact required to maintain logs, and his arguments otherwise are predicated on a misreading of applicable law. See Reply at 8-9. In so arguing, however, Kris-Way oversimplifies Capalbo’s pretext theory. Even assuming
1. Kris-Way in general, and Farrin in particular, had been confused about DOT logbook requirements. Kris-Way’s description of the job of yard jockey does not contain a requirement that yard jockeys maintain logbooks. See Plaintiffs Additional SMF ¶ 12; Defendant’s Reply SMF ¶ 12. Ryan, Kris-Way’s Vice-President of Operations, did not believe, prior to January 2008, that yard jockeys were required to maintain logbooks. See id. ¶ 11. Farrin affirmatively instructed yard jockeys not to maintain logbooks for yard jockey work. See id. ¶ 20.
2. While Farrin contends that Capalbo had problems maintaining logbooks, Capalbo’s employment file is devoid of reference to any disciplinary action for such an offense. See id. ¶¶47, 68. Kris-Way had a “secret file” allegedly maintained by Farrin commencing in January 2008 documenting warnings to Capalbo concerning his failure to maintain logbooks. See id. ¶ 16. However, in January 2009, Kris-Way did nothing to ensure that other yard jockeys were filling out logs. See id. ¶ 17. In addition, Capalbo denies that the “secret file” warnings ever were given. See, e.g., id. ¶ 18. A reasonable fact-finder crediting Capalbo’s evidence could conclude that (i) Kris-Way was not concerned, until the imminent DOT audit, about Capalbo’s maintenance of logbooks or yard jockeys’ maintenance of logbooks in general, and (ii) Farrin created the “secret log” to buttress Kris-Way’s case for Capalbo’s discharge, possibly, as Capalbo suggests, see Opposition at 7, subsequent to his discharge.
3. Farrin knew that one of the purposes of the DOT audit was to review the prior six months of logbooks of Country Kitchen workers for accuracy. See Defendant’s SMF ¶ 42; Plaintiffs Opposing SMF ¶ 42; Plaintiffs Additional SMF ¶ 57; Defendant’s Reply SMF ¶ 57. Farrin, who had affirmatively instructed yard jockeys not to maintain logbooks, had reason to be concerned that Kris-Way would be found in noncompliance with respect to yard jockeys’ logbooks. Tellingly, although Farrin stated in his affidavit that, at the time of Capalbo’s discharge, he was in the process of making all of Kris-Way’s records available to the DOT, he admits that he provided only those logbooks that were requested by the DOT. See Plaintiffs Additional SMF ¶¶ 55-56; Defendant’s Reply SMF ¶¶ 55-56.
5. Farrin directed Capalbo, on August 18, 2008, to recreate initially six months’ worth of logbooks, and then only those for the first two weeks of August. See Plaintiffs Additional SMF ¶¶ 40-41; Capalbo Dep. at 108-09.
6. After Capalbo balked and complained that recreating a logbook was illegal, see Plaintiffs Additional SMF ¶ 42; Capalbo Aff. ¶ 2, Farrin engineered his discharge by (i) refusing to provide him with copies of his timecards, which would have made his recreation of his logbooks more accurate, see Plaintiffs Additional SMF ¶¶ 43-44; Capalbo Dep. at 104-05, 119, (ii) complaining the following day to Ryan, who was Farrin’s supervisor, about Capalbo’s asserted logbook problems, see Defendant’s SMF ¶ 47; First Farrin Aff. ¶¶ 27-28; Ryan Aff. ¶¶ 10-11, and (iii) participating in a meeting on August 20, 2008, during which Ryan compared Capalbo’s recreated logbooks against his timecards, predictably finding discrepancies, see Defendant’s SMF ¶¶ 50-54; Plaintiffs Opposing SMF ¶¶ 50-54. Per Kris-Way’s written policies, falsifying logbooks was an offense serious enough to warrant immediate termination. See Defendant’s Reply SMF ¶ 68; Second Farrin Aff. ¶ 13 & Exh. 3 thereto.
7. Although Capalbo’s fellow yard jockey, Lord, turned in logbooks, they were not properly completed with respect to days in which Lord worked in the yard. See Plaintiffs Additional SMF ¶ 78; Exh. 7 to Loranger Aff. Yet, there is no evidence that Kris-Way took any disciplinary action against Lord.
A reasonable-fact finder crediting this evidence could infer that Farrin engineered Capalbo’s discharge because Capalbo balked at recreating six months’ worth of logbooks and complained that doing so was illegal.
3. Ryan as Decision-Maker
Kris-Way finally seeks summary judgment as to Capalbo’s fourth theory of recovery, the logbook theory, on the basis that Capalbo ignores the fact that Ryan, rather than Farrin, made the decision to discharge him, rendering Farrin’s alleged knowledge and motives irrelevant. See Reply at 9-10 (quoting Thompson,
Nonetheless, a reasonable fact-finder could trace Ryan’s decision to discharge Capalbo to Farrin’s alleged retaliatory animus. As this court has noted:
[A]n employer may be held liable if the decisionmaker who discharged the plaintiff merely acted as a rubber stamp, or the “cat’s paw,” for a subordinate employee’s prejudice, even if the decision-maker lacked discriminatory intent. It is appropriate to tag the employer with an employee’s [retaliatory] animus if the evidence indicates that the worker possessed leverage, or exerted influence over, the titular decisionmaker. To invoke the cat’s paw analysis, a plaintiff must submit evidence sufficient to establish two conditions: (1) that the nondecisionmaker exhibited discriminatory animus; and, (2) the final decisionmaker acted as the conduit of the nondecisionmaker’s prejudice.
Donahue v. Clair Car Connection, Inc.,
Kris-Way’s request for summary judgment as to Counts One and Two, to the extent predicated on Capalbo’s fourth theory of recovery, the logbook theory, accordingly is denied.
IV. Conclusion
For the foregoing reasons, I GRANT Kris-Way’s motion for summary judgment as to Count One, to the extent predicated on Capalbo’s first, second, and third theories of recovery, his DOT, MDOL, and excessive hours theories, and as to Count Two, to the extent predicated on his second and third theories of recovery, his MDOL and excessive hours theories, and otherwise DENY it. Remaining for trial are Count One, to the extent predicated on Capalbo’s fourth theory of recovery, his logbook theory, and Count Two, to the extent predicated on his first and fourth theories of recovery, his DOT and logbook theories.
SO ORDERED.
Notes
. Pursuant to 28 U.S.C. § 636(c), the parties have consented to have me conduct all proceedings in this case, including trial, and to order the entry of judgment.
. To the extent that I have incorporated one party’s qualification into the statement of the other, I have determined that the qualification is supported by the record citation(s) given. In addition, to the extent that I have determined that Capalbo denies statements of Kris-Way, I have determined that the denial is supported by the record citation(s) given.
. I omit the final sentence of Defendant’s SMF ¶ 1, which Capalbo denies, Plaintiff's Opposing SMF ¶ 1.
. My recitation incorporates Kris-Way’s qualification.
. I omit Kris-Way’s further statement that yard jockeys spend less than half of a day's work time driving, Defendant’s SMF ¶ 25, which Capalbo denies, Plaintiff’s Opposing SMF ¶ 25.
. I omit the remainder of Defendant's SMF ¶ 28, which Capalbo denies, Plaintiff’s Opposing SMF ¶ 28.
. I omit Defendant’s SMF ¶ 30, which Capalbo denies, Plaintiff's Opposing SMF ¶ 30.
. Although Capalbo denies this paragraph, Plaintiff’s Opposing SMF ¶ 2, his assertions do not controvert the portion set forth above.
. I omit portions of Defendant’s SMF ¶ 3 that are not supported by the citation given.
. I omit Capalbo’s qualification, Plaintiff's Opposing SMF ¶ 12, which is not supported by the citation given.
. Capalbo in effect qualifies paragraph 13, Plaintiff's Opposing SMF ¶ 13, asserting that Kris-Way never required him to fill out a log for his yard jockey work, but only when he went "on the road[,]” Deposition of Kevin J. Capalbo ("Capalbo Dep.”) (Docket No. 22-1), attached to Defendant's SMF, at 80.
. Capalbo qualifies this statement, asserting that Kris-Way did not require yard jockeys to record time spent while working in the "yard.” Plaintiff’s Opposing SMF ¶ 6; Transcript of Deposition of Sidney P. Lord (“Lord Dep.”) (Docket No. 34-10), Exh. 12 to Affidavit of Guy Loranger ("Loranger Aff.”) (Docket No. 34), at 49, 52-53; Capalbo Dep. at 80.
. I have modified Defendant’s SMF ¶ 7 to reflect that, in the cited portion of his deposition, Capalbo acknowledged that this requirement applied when he was "over the road[J” Capalbo Dep. at 94. Although Capalbo denies paragraph 7, Plaintiff's Opposing SMF ¶ 7, the material that he cites fails to controvert the statement as modified. I omit Defendant’s SMF ¶ 8, which is neither admitted nor supported by the citations given.
. Although Capalbo denies this paragraph, Plaintiffs Opposing SMF ¶ 26, the material that he cites fails to controvert the portion set forth above.
. Capalbo qualifies this statement, asserting, in cognizable part, that when he called Farrin to inform him that he was approaching working 14 hours, Farrin told him to keep working. Plaintiff’s Opposing SMF ¶ 9; Capalbo Dep. at 53. His qualification is otherwise unsupported by the citations given.
. Although Capalbo denies this, Plaintiff's Opposing SMF ¶ 15, his assertions do not controvert it.
. Capalbo qualifies this statement, asserting, in cognizable part, that when he informed Farrin that he was approaching his limit on work hours in a day, Farrin told him that he had to stay at the yard because there was no one else to replace him at the yard. Plaintiff’s Opposing SMF ¶ 17; Capalbo Dep. at 53.
. I omit Plaintiff's Additional SMF ¶ 15, which is neither admitted nor supported by the citation given.
. I omit the remainder of Defendant’s SMF ¶ 33, as well as Defendant’s SMF ¶ 34, which Capalbo denies. Plaintiff's Opposing SMF ¶¶ 33-34.
. I omit Capalbo’s further statements that (i) throughout his employment, he did not maintain a log for the work he did as a yard jockey, Plaintiff's Additional SMF ¶ 27, and (ii) he only recorded a log when he was driving over-the-road, because yard work did not require him to fill out a log, id. ¶ 28. While he cites his deposition testimony in
. Kris-Way denies this, Defendant's Reply SMF ¶ 29, but I view the evidence in the light most favorable to Capalbo as nonmovant.
. My recitation incorporates Kris-Way's qualification.
. Kris-Way qualifies this statement, Defendant's Reply SMF If 19, asserting that Lord worked as a yard jockey on and off, but not consistently, and was primarily an over-the-road driver who filled in on yard jockey responsibilities sometimes in 2008 and after Capalbo was fired. Defendant's Reply SMF ¶ 19; Second Farrin Aff. ¶ 6.
. Kris-Way qualifies this statement, asserting that Lord testified that Farrin told him "that I was not to keep a logbook while I worked as a yard jockey because he did not think DOT rules required me to keep one.” Defendant's Reply SMF ¶ 20; Lord Dep. at 112. Lord also testified that he had to do logs whenever he was engaged in interstate commerce or was driving a "big rig.” Defendant’s Reply SMF ¶ 20; Lord Dep. at 21, 53. He admits that he turned in a log for every day he drove as a yard jockey. Defendant's SMF ¶ 20; Lord Dep. at 27, 114.
. Kris-Way denies this, Defendant’s Reply SMF ¶ 21, but I view the evidence in the light most favorable to Capalbo as nonmovant.
. Kris-Way denies this, Defendant’s Reply SMF ¶ 22, but I view the evidence in the light most favorable to Capalbo as nonmovant.
. Kris-Way denies this, Defendant's Reply SMF ¶ 23, but I view the evidence in the light most favorable to Capalbo as nonmovant.
. I omit Kris-Way’s further assertion that these injuries and damages were due to Capalbo's negligence, Defendant’s SMF ¶ 66, which is neither admitted nor supported by the citation given. Capalbo testified that he rolled his truck over, an occurrence that may or may not have been attributable to any negligence on his part. Capalbo Dep. at 31.
. I omit Kris-Way’s further assertion that Capalbo could have been, but was not, termi
. Kris-Way qualifies paragraph 32, stating that Capalbo did not say that he was working too many hours in the yard, Second Farrin Aff. ¶ 18, and that Capalbo's records disclose that he drove over the road at least five days in March, six days in April, 10 days in May, and three days in August 2008, Exh. 1 (Docket No. 42-1) to Second Farrin Aff.
. Kris-Way objects to this statement on the basis that Capalbo submitted an errata sheet in which he inappropriately attempted to alter his direct testimony that on many days when he drove over the road, he failed to keep logs. Defendant’s Reply SMF ¶ 34. The objection is overruled. Capalbo cites to his deposition testimony, not to his errata sheet. Plaintiff's Additional SMF ¶ 34. Kris-Way alternatively denies the statement, Defendant’s Reply SMF ¶ 34, but I view the evidence in the light most favorable to Capalbo as nonmovant.
. Although Capalbo denies this statement, Plaintiff's Opposing SMF ¶ 20, the materials that he cites fail to controvert it.
. Although Capalbo denies this statement, Plaintiff's Opposing SMF ¶21, the materials that he cites fail to controvert it.
. I omit Defendant’s SMF ¶ 18, which Capalbo denies, Plaintiff’s Opposing SMF ¶ 18, as well as Plaintiff’s Additional SMF ¶ 58, which is neither admitted nor supported by the citation given.
. Although Capalbo denies this, Plaintiff’s Opposing SMF ¶ 19, the materials that he cites fail to controvert the portion set forth above.
. Kris-Way qualifies this statement, asserting that Capalbo did frequently work significant hours in a workday but did not frequent
. Capalbo further asserts that he complained to Farrin that he had to work hours in excess of the legal limit in a day. Plaintiff's Additional SMF ¶ 25. In the cited portion of his deposition testimony, Capalbo agreed with an attorney’s statement that he had testified earlier that he complained to Farrin “about having to work hours in excess of the legal limit in a day[.]” Capalbo Dep. at 112. However, as Kris-Way notes, Defendant’s Reply SMF ¶ 25, the underlying testimony was that Capalbo would report to Farrin that he was approaching his limit in allowable hours, and Farrin would direct Capalbo to keep working because Kris-Way had no one to replace him, Capalbo Dep. at 53.
. Kris-Way denies this, Defendant's Reply SMF ¶ 6, but I view the evidence in the light most favorable to Capalbo as nonmovant.
. Kris-Way denies paragraph 7, Defendant’s Reply SMF ¶ 7, but I view the evidence in the light most favorable to Capalbo as nonmovant.
. Kris-Way denies paragraph 8, Defendant’s Reply SMF ¶ 8, but I view the evidence in the light most favorable to Capalbo as nonmovant.
. Kris-Way denies this, Defendant’s Reply SMF ¶ 9, but I view the evidence in the light most favorable to Capalbo as nonmovant.
. Kris-Way qualifies this statement, Defendant’s Reply SMF ¶ 10, asserting that Capalbo never contacted Farrin regarding exceeding legally-allowed work hours, Second Farrin Aff. ¶ 3.
. Kris-Way denies this, Defendant’s Reply SMF ¶ 24, but I view the evidence in the light most favorable to Capalbo as nonmovant.
. Kris-Way denies this, Defendant's Reply SMF ¶ 67; however, I view the evidence in the light most favorable to Capalbo as nonmovant.
. Although Capalbo denies this, Plaintiff’s Opposing SMF ¶ 38, his assertions do not controvert that there is no record of such complaints.
. Although Capalbo denies this, Plaintiff's Opposing SMF ¶ 63, his assertions do not controvert that his time records showed this.
. Kris-Way mistakenly repeats paragraph number 59 between paragraph numbers 63 and 64, albeit with a different substantive content. Defendant’s SMF at 10-11. For the sake of clarity, I have renamed its second paragraph 59 "59-1.”
. Capalbo both admits and denies this statement. Plaintiff’s Opposing SMF ¶ 64. Assuming that he meant to deny it, none of his allegations controvert it.
. Capalbo denies that the audit was trigr gered by a computer-generated accident frequency report, stating that the DOT remarked that "the review was initiated due to the fact that the company was subject of a complaint.” Plaintiff’s Opposing SMF ¶ 39. However, the material that he cites does not support that proposition. Exh. 4 (Docket No. 34-3) to Loranger Aff.
. I omit Kris-Way’s further statement that it determined that all South Portland-based drivers had regularly turned in their daily driving logs for the preceding six months, Defendant’s SMF ¶ 40, which Capalbo denies, Plaintiff’s Opposing SMF ¶ 40.
. I omit Capalbo’s qualification of this statement, Plaintiff's Opposing SMF ¶ 41, which is not supported by the citation given.
. I omit Defendant's SMF ¶ 43, which Capalbo denies, Plaintiff's Opposing SMF ¶ 43, as well as Plaintiff's Additional SMF ¶ 53, which is neither admitted nor supported by the citation given.
. Kris-Way denies this in part, Defendant's Reply SMF ¶ 54, but I view the evidence in the light most favorable to Capalbo as nonmovant.
. My recitation incorporates Kris-Way’s qualifications.
. Kris-Way denies paragraph 50, Defendant’s Reply SMF ¶ 50, however, I view the evidence in the light most favorable to Capalbo as nonmovant.
. Kris-Way complains that Capalbo tries with his errata sheet to reverse his sworn testimony that he did not even prepare logs for several of the days when he was driving over the road. Defendant’s Reply SMF ¶ 51. However, Kris-Way identifies no basis for striking the underlying statement. Id. In any event, as a general matter, it is not impermissible on summary judgment to rely on a revision of sworn deposition testimony set forth in an errata sheet prepared in accordance with the requirements of Federal Rule of Civil Procedure 30(e), even if the original answer
. Although Capalbo denies paragraph 46, Plaintiff's Opposing SMF ¶ 46, his assertions do not controvert the portions set forth above.
. Kris-Way complains of inconsistencies in Capalbo’s sworn deposition testimony but identifies no basis on which to strike paragraphs 40 and 41. Defendant's Reply SMF ¶¶ 40-41. To the extent that Kris-Way denies the statements, id.., I view the evidence in the light most favorable to Capalbo as nonmovant.
. Kris-Way denies this, Defendant’s Reply SMF ¶ 42, but I view the evidence in the light most favorable to Capalbo as nonmovant.
. Kris-Way denies this, Defendant's Reply SMF ¶ 43, but I view the evidence in the light most favorable to Capalbo as nonmovant.
. I omit the balance of paragraph 44, Plaintiff's Additional SMF ¶ 44, which is neither admitted nor supported by the citation given. Kris-Way denies this paragraph, Defendant’s Reply SMF ¶ 44, but I view the evidence in the light most favorable to Capalbo as nonmovant.
. Kris-Way denies this, Defendant's Reply SMF ¶ 49, however, I view the evidence in the light most favorable to Capalbo as nonmovant.
. Capalbo in effect qualifies this statement, denying that (i) he failed to turn in required
. Capalbo in effect qualifies this statement, denying that any issue existed as to his not keeping his log. Plaintiff’s Opposing SMF ¶ 48. He asserts, in cognizable part, that Kris-Way did not require him to turn in logs, so he did not, and that, when working on the road, he kept logs. Id.; Lord Dep. at 49, 53; Capalbo Dep. at 80, 95.
. I omit Defendant’s SMF ¶ 49, which Capalbo denies, Plaintiff's Opposing SMF ¶ 49.
. Capalbo qualifies paragraphs 51 and 52, asserting that he retrieved the logs that he had recreated at Farrin’s request, which were not the originals that he had already passed in, and that he had asked Farrin to provide him with timecards so that it would be easier to correctly redo his logs, but Farrin refused his request. Plaintiffs Opposing SMF ¶¶ 51-52; Capalbo Dep. at 104-05.
. Capalbo in effect qualifies paragraphs 56, 57, and 58, denying that he falsified his log and asserting that he recreated the log at Farrin’s order and made a couple of mistakes because Farrin would not let him see time-cards to recreate the log. Plaintiff's Opposing SMF ¶¶ 56-58; Capalbo Dep. at 104-05.
. I omit Capalbo's further statement that, after Farrin and Ryan reviewed the recreated logs, Farrin fired Capalbo for falsifying the logs. Plaintiff’s Additional SMF ¶ 72; see also id. ¶ 80; Plaintiff's Opposing SMF ¶ 58. As Kris-Way points out, Defendant’s Reply SMF ¶¶ 72, 80, this is not supported by the citations given. The cited portions of Capalbo’s deposition do not address his firing. Ca
. Kris-Way qualifies paragraphs 68 and 69, asserting that its policies provide that it may elect to use any or none of several different forms of discipline, including immediate termination, which is the disciplinary measure listed for falsification of logbooks. Defendant's Reply SMF ¶¶ 68-69; Second Farrin Aff. ¶ 13 & Exh. 3 (Docket No. 42-3) thereto at 13. Capalbo admits that he received and read these policies. Defendant's Reply SMF V 68; Capalbo Dep. at 37. I omit Plaintiff's Additional SMF ¶ 73, which is neither admitted nor supported by the citation given.
. Kris-Way qualifies this statement, asserting that Farrin had been advised by Kris-Way’s dispatcher that Capalbo was not timely filling out or turning in his driver log records. Defendant's Reply SMF ¶ 16; Farrin Dep. at 40, 59-60. I omit Kris-Way’s further qualification that, although the contemporaneous computer entries were not shared with Capalbo, the information was no secret because Farrin spoke on each occasion with Capalbo concerning the facts that were subsequently recorded, Defendant’s Reply SMF ¶ 16, which Capalbo elsewhere denies, Plaintiff's Opposing SMF ¶ 30.
. Kris-Way qualifies this statement, asserting that it is undisputed that all other yard jockeys were turning in logs for all work that they were engaged in. Defendant’s Reply SMF ¶ 17; First Farrin Aff. ¶¶ 21, 25.
. I omit Kris-Way’s qualifications, Defendant’s Reply SMF ¶ 18, which Capalbo denies, Plaintiff's Additional SMF ¶ 18; see also Plaintiff’s Opposing SMF ¶ 30.
. Although Capalbo states that Farrin did not document what was said "during any of the alleged conversations” between them, Plaintiff’s Additional SMF ¶ 48, the cited portion of Farrin’s deposition transcript refers only to Farrin’s failure to document what Capalbo said during an alleged May 1, 2008,
. ICris-Way qualifies paragraph 79, Defendant's Reply SMF ¶ 79, asserting that Farrin’s statements, made in a form provided by Capalbo to assist Capalbo in his efforts to buy his own tractor, were made before Farrin learned that Capalbo had not submitted any logs for June, July, or the first part of August and after Capalbo had started submitting logs in early May, Second Farrin Aff. ¶ 15.
. Kris-Way denies paragraph 78, but does not contest the existence of the recited discrepancies between Lord’s logs and time-cards. Defendant's Reply SMF ¶ 78. Instead, it asserts that Lord turned in logs every day that he worked as a yard jockey, Lord Dep. at 114, and that his failure to record his time properly was not discovered by Farrin or Ryan until Kris-Way reviewed all yard jockeys’ logs in preparing its response to Capalbo's MHRC complaint, which was filed on October 28, 2008, more than two months after Capalbo's discharge, First Farrin Aff. ¶ 41; Ryan Aff. ¶ 21.
. Capalbo denies this sentence on the bases that Ryan’s statement in his affidavit is conclusory and that when, in discovery, Kris-Way was asked to identify employees who had been terminated for the same reason as Capalbo, it stated that it had “not terminated any other employee for falsifying time records and lying about having previously submitted logs.” Plaintiff's Opposing SMF ¶ 10; Defendant's Revised Responses to Plaintiff's Interrogatories (Docket No. 34-2), Exh. 3 to Loranger Aff., ¶ 17. The statement in question is not conclusory and is not necessarily inconsistent with the discovery response. Ryan avers that he had terminated four other employees for falsifying logbooks, whereas Kris-Way stated that it had not terminated any other employees for both falsifying time records and lying about having previously submitted logs.
. Although Capalbo denies paragraph 59, Plaintiff's Opposing SMF ¶ 59, his assertions do not controvert the underlying statement.
. I have changed the word ''illegally[,] Plaintiff’s Additional SMF ¶ 38, to "wrongly” to conform with the cited material.
. Although Capalbo denies this, Plaintiff's Opposing SMF ¶ 60, the material that he cites fails to controvert it.
. Kris-Way qualifies this statement, Defendant’s Reply SMF ¶ 59, asserting that it was clear that there was no basis for such a rumor, given that Capalbo admits that he never went to the DOT or was contemplating going to the DOT about Kris-Way, Capalbo Dep. at 110, 124.
. Kris way denies this, Defendant's Reply SMF ¶ 60; however, I view the evidence in the light most favorable to Capalbo as nonmovant.
. Kris-Way denies paragraph 61, Defendant's Reply SMF ¶ 61; however, I view the evidence in the light most favorable to Capalbo as nonmovant.
. Kris-Way denies paragraph 62, Defendant's Reply SMF ¶ 62; however, I view the evidence in the light most favorable to Capalbo as nonmovant.
. Kris-Way denies paragraph 63, Defendant’s Reply SMF ¶ 63; however, I view the evidence in the light most favorable to Capalbo as nonmovant.
. Kris-Way denies paragraph 64, Defendant's Reply SMF ¶ 64; however, I view the evidence in the light most favorable to Capalbo as nonmovant.
. While Kris-Way raised its argument concerning the fourth theory of recovery, the logbook theory, for the first time in its reply brief, I do not consider it waived. Kris-Way’s failure to discern this fourth theory from the complaint is understandable: Capalbo was not clear that he considered this incident a distinct protected activity. See Complaint ¶ 12. In addition, Kris-Way joined issue, in its reply, with Capalbo's argument concerning the logbook theory of recovery. See Plaintiff's Memorandum of Law in Opposition to Defendant’s Motion for Summary Judgment ("Opposition”) (Docket No. 31) at 2, 9, 15-16; Reply at 7-8. Both parties thus have had an opportunity to brief this issue.
. "The MWPA analysis is guided by federal case law construing analogous statutes.” Halkett v. Correctional Med. Servs., Inc.,
. Kris-Way argues that Lord's testimony that Farrin told him that he (Farrin) believed that Capalbo had made a complaint that triggered the DOT audit is “incredible” and insufficient to stave off summary judgment in view of Kris-Way’s undisputed evidence that Capalbo neither made nor told anyone that he planned to make a complaint to the DOT and that Kris-Way knew from the DOT that the audits in South Portland and Auburn had been triggered by something other than a complaint. See Motion at 15; Reply at 5-6. Nonetheless, it is not self-evident that a reasonable fact-finder could only conclude that Lord’s testimony on this point is false. It is possible that, despite the DOT’s official explanation for the audit, Farrin could have perceived that Capalbo had triggered it by filing a complaint.
. Capalbo acknowledges that, to the extent that he drove "over the road,” he was required to keep that day's logbook plus the previous seven days’ worth of logbooks available for inspection. See Defendant's SMF ¶ 7; Capalbo Dep. at 94-95. However, he argues that, as a yard jockey, he qualified for the so-called short-haul operations exemption from the daily logbook requirement. See Opposition at 3; see also 49 C.F.R. §§ 395.1(e); 395.8. Kris-Way disputes that he qualified for that exemption, pointing out that a driver must meet several criteria, see Reply at 9, one of which is that he or she "returns to the work reporting location and is released from work within 12 consecutive hours!,]” 49 C.F.R. § 395.1(e)(1)(h). Kris-Way notes that Capalbo maintains, and his records reveal, that he frequently worked shifts longer than 12 hours while employed as a yard jockey. See Reply at 9. Kris-Way appears to have the better argument. However, for purposes of summary judgment, I need not definitively resolve this point.
. For purposes of Capalbo's first theory of recovery, the DOT theory, a reasonable fact-finder could also find that Farrin engineered Capalbo’s discharge at least in part because he perceived that Capalbo had filed a complaint with the DOT and/or feared that Capalbo was about to cooperate with the pending DOT audit.