Makowski v. Maine Standards Co., LLC

• Court: Superior Court of Maine
• Decided: June 19, 2017
• Docket: CUMcv-16-276
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. CV-16-276

THOMAS MAKOWSKI,

Plaintiff V.

MAINE STANDARDS CO., LLC,

Defendant

Before the court is a motion by defendant Maine Standards Co., LLC to dismiss or

stay the above-captioned action and compel arbitration.

In his complaint plaintiff Thomas Makowski alleges that he was employed by Maine

Standards as a Sales Manager beginning on December 31, 2011. Among the terms of his

employment were that he could telecommute one day per week from his home in New

Hampshire.

Makowski alleges that after Maine Standards was acquired by an English company,

LGC Science Group Ltd., he signed an employment agreement in November 2015 that

included an arbitration clause providing in pertinent part:

All claims between the Company and Manager with respect to this Agreement shall be resolved by binding arbitration, with all proceedings conducted at the American Arbitration Association's Boston, Massachusetts Regional Office, administered under the rules and regulations of the American Arbitration Association with the Federal Rules of Evidence applicable in all respects thereto.

The employment agreement also contained a provision essentially specifying that

Makowski would be entitled to 36 months of severance if he were terminated without

cause. Makowski further alleges that he was terminated on April 1, 2016 for not appearing

at work although his absence was necessitated by the need to attend a medical

appointment. When he protested that his termination violated his employment agreement

and was illegal, he alleges that he was subsequently reinstated on April 25, 2016 but was

then subjected to various forms of retaliation for asserting his legal rights, which led to a

final termination on June 14, 2016.

He commenced this action on July 12, 2016. The first three causes of action in his

complaint are based on claims that Maine Standards breached the November 2015

employment agreement. Count IV of the complaint alleges that Maine Standards violated

the Maine Family Medical Leave Act, 26 M.R.S. § 843 et seq., by subjecting Makowski to

retaliation for exercising his rights under that Act. Count V of the complaint alleges that

Maine Standards also violated the federal Family and Medical Leave Act, 29 U.S.C. § 2601

et seq., based on the alleged retaliation.

Makowski does not contest that Counts I - III of the complaint are subject to

arbitration under his employment agreement. The issue before the court is whether

Counts IV and V also qualify as "claims with respect to [the employment agreement]" and

are therefore also subject to arbitration.

If Makowski's claims were factually severable, the court would be inclined to rule

that the agreement to arbitrate claims under Makowski's employment agreement does not

apply to separate statutory claims. The express terms of the agreement do not mention

statutory claims. On this issue, Makowski cites the First Circuit's decision in Rosenberg v.

Merrill Lynch, Pierce, Fenner & Smith Inc., 170 F. 3d 1, 21 (1st Cir. 1999), for the

proposition that an employee should have a minimal level of notice that statutory claims

2 are subject to arbitration. However, the First Circuit has since suggested that Rosenberg is

applicable to cases under Title VII, which contains language allowing arbitration where

"appropriate" and would not necessarily apply in other contexts. Awuah v. Coverall North

America Inc., 703 F.3d 36, 45 (1st Cir 2012).

In any event, the court finds Rosenberg to be distinguishable because Makowski's

state and federal Family Medical Leave Act claims are factually intertwined with his claims

under his employment agreement. As noted above, the complaint alleges that Makowski

was allowed to telecommute one day per week under the terms of his employment

beginning in 2011. Complaint ,r 5. All his claims for breach of his employment agreement

are based at least in part on action by Maine Standards to end the telecommuting

arrangement, which he contends violated the terms of his agreement. Complaint ,r,r 19, 39,

47, 57.

At the same time Makowski alleges that in May 2013, more than a year after his

telecommuting arrangement had been established, he had heart surgery requiring ongoing

medical follow up. Complaint § 6. Makowski alleges that he was originally terminated,

then reinstated, and then retaliated against because he remained away from the office on

one of the allegedly agreed telecommuting days - April 1, 2016 - in order to attend a

medical appointment. Complaint ,r,r 18, 29-30. 1 Makowski's memorandum in opposition

to the motion to stay or dismiss also argues that his preexisting telecommuting

1 This is not a typical claim under the Maine or federal Family Medical Leave statutes. Those statutes contemplate that medical leave - either taken in a block or intermittently - consists of unpaid leave unless paid medical leave (or under federal law, paid medical leave or paid vacation time), is used for all or part of the 10 weeks provided under state law or the 12 weeks provided under federal law. See 26 M.R.S. § 844(2); 29 U.S.C. § 2612(c), (d)(l), (d)(2)(A). In this case, as the court understands it, Makowski alleges that he was entitled to telecommute on April 1 for a

3 arrangement evolved into an accommodation under the family medical leave statutes to

allow him to attend medical appointments near his home in New Hampshire. Plaintiffs

Opposition Memorandum dated March 2, 2017 at 2.

Under these specific circumstances the court concludes that Makowski's claims

under the state and federal medical leave statutes are also claims "with respect to [the

employment agreement]" and that this action shall be stayed to allow arbitration.

The entry shall be:

Defendant's motion to stay this action pending arbitration is granted. The clerk is

directed to incorporate this order in the docket by reference pursuant to Ru le 79(a).

Dated: June-fl, 2017

Thomas D. Warren Justice, Superior Court

necessary medical appointment as part of his overall telecommuting arrangement, without using paid vacation, paid medical leave, or unpaid leave.

4 : OF COURTS 3rland County Street, Ground Floor 1d, ME 04101

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? l+(:' Coo.nse.l Sally Morris Esq Sally A. Morris Attorney at Law Six City Center 3rd Floor Portland ME 04101