Theriault v. Hi Tech Insulation Svs.

Maine Superior

Theriault v. Hi Tech Insulation Svs.

Superior Court of Maine·Decided January 5, 2011·No. ANDcv-10-049·Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT ANDROSCOGGIN, ss. DOCKET NO. CV-IO-049 ~J1 (

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DAVID THERIAULT,

Plaintiff ORDER

v.

HI TECH INSULATION SERVICES, REeD AUBSC 01/06/11

Defendant.

This matter came before the court on Defendant's, Hi Tech Insulation Services, motion for summary judgment pursuant to M.R. Civ. P. 56. Hearing was held on the matter on January 4,2011.

The core of the Plaintiff's claim is that the Defendant subjected him to an adverse employment action, namely termination, because he complained to his supervisor about the brakes in a company truck and that he left the job site so that he would not have to ride in said vehicle. The Defendant argues that the Plaintiff's WPA claim fails as a matter of law because the evidence is insufficient to support an argument that he engaged in an activity protected under the WPA and that there is insufficient evidence that the adverse employment action was caused by any such conduct.

FACTUAL BACKGROUND

In 2004, Plaintiff, David Theriault ("Plaintiff"), was hired by the Defendant as an insulation installer. Thomas Estes is the President and owner of Hi Tech with the authority to hire and terminate employees. Mr. Estes maintains

a fleet of trucks with assigned drivers, plus an additional two to three spare trucks. It is undisputed that Mr. Estes takes care of his equipment, has regular oil changes on the trucks, and takes pride in how they look. The Plaintiff knew that Mr. Estes would bring a substitute truck to crewmembers at a jobsite if the primary truck was not running right, and also knew that Truck Repair Forms and Problem Reports were widely available to all crewmembers to alleviate the need for emergency truck substitution. (P.R.S.M.F. «j[«j[ 10-13.) In fact, prior to the event in question, the Plaintiff never experienced Mr. Estes doing anything he felt was unsafe. (P.R.S.M.F. «j[ 9).

Mr. Estes allows crewmembers to take company trucks home. Ever since the Plaintiff lost his driver's license for an OUI on April 16, 2006, and with it his access to an assigned truck. Mr. Estes has arranged for another driver to take Plaintiff to and from work every day. This was not done for anyone else. The drivers who do not take a truck home select any available truck each work morning.

Prior Disciplinary Actions On March 6,2007, Plaintiff was given a warning after he continued to

smoke in a truck driven by a co-worker who did not want to be around smoke. On August 2, 2007, the Plaintiff was counseled about "running his mouth" at job sites. On January 17, 2008, Plaintiff received a warning for speaking negatively to other company's employees.

The Incident On July 17 and 18,2008, Plaintiff was assigned to ride with his co-worker,

Dan Lowe, from the Defendant's place of business in New Gloucester to a job site in Portland. Mr. Lowe did not take a truck home each day, and therefore

selected a truck each morning. Mr. Lowe picked Truck #3 from the Defendant's fleet of trucks on both July 17 and 18, 2008.

The Plaintiff claims that during the ride to Portland the truck exhibited signs of brake problems. Upon arriving at the job site, however, Plaintiff did not call Mr. Estes to arrange for the delivery of a substitute truck, despite the presence of an available phone. During the morning break the Plaintiff again rode in the truck, despite the vibrating brakes. Plaintiff also rode in the truck during the lunch break. At the end of the day Plaintiff rode in the truck back to New Gloucester. The Plaintiff never informed Mr. Estes of the brake problem, nor did he fill out a Problem Report Form. Plaintiff does allege that he overheard Mr. Lowe tell Mr. Estes that the brakes were bad in Truck #3.

On July 18, 2008, the Plaintiff reported to work and was assigned to travel again with Mr. Lowe. Mr. Lowe again chose Truck #3, despite its alleged brake problem. Plaintiff agrees that it would not make sense for Mr. Lowe to choose truck #3 if it had brake problems.

When the Plaintiff learned of his vehicle assignment he told 1 Mr. Estes that he did not think that the brakes were safe. The Plaintiff did not request a spare truck to get to Portland. Mr. Estes responded that they had recently been repaired, and that the brakes may have been rusty, as the truck had been sitting for a while. Plaintiff then told Mr. Estes to take Truck #3 for a test drive, which Mr. Estes, who was busy getting ready for the work day, declined to do at that moment. Mr. Estes then announced to all employees within hearing distance

1The Plaintiff states that he calmly told Mr. Estes of the brake problem. Mr. Estes claims that Plaintiff screamed, swore, and yelled at him when he informed the Plaintiff that the brakes on the work truck had recently been repaired. Although there is an issue of fact as to when the parties began to yell, this is not a material fact such that summary judgment is precluded.

that no one was to give Plaintiff rides to and from work in company vehicles any longer. The conversation escalated, and Plaintiff alleges that Mr. Estes told him to get in the truck and get to Portland. Plaintiff eventually declared he was leaving the work site. Mr. Estes warned Plaintiff that if he walked off the job "he was all done." (D.5.M.F. 150.) Plaintiff left the job site. When the Plaintiff next reported to work, he was told that he no longer had a job because he had abandoned it the previous workday.

Plaintiff claims that the Defendant terminated his employment for refusing to ride in the work vehicle, in violation of both 26 M.R.S.A. § 833(l)(B) and (D), as well as 5 M.R.S.A. § 4572(l)(A).

Plaintiff filed a claim with the Maine Human Rights Commission and was issued a Right to Sue Letter. Plaintiff filed the current complaint against Defendant on March 15, 2010. On June 21,2010, this court denied the Defendant's motion to dismiss, finding that further discovery was necessary to provide clarity regarding the events leading up to the Plaintiff's termination. The Defendant filed the pending motion for summary judgment on October 26, 2010.

DISCUSSION

I. Standard of Review.

"Summary judgment is appropriate when review of the parties'

statements of material facts and the referenced record evidence, considered in the light most favorable to the non-moving party, indicates that no genuine issue of material fact is in dispute." Blue Star Corp. v. CKF Props. LLC 2009 ME 101, 123, 980 A.2d 1270, 1276 (citing Dyer v. Dep't ofTransp., 20081VIE 106, 114,951 A.2d 821,825; Stanley v. Hancock County Comm'rs, 2004 ME 157, <JI 13, 864 A.2d 169,

174); see also M. R. Civ. P. 56. A party wishing to avoid summary judgment must present a prima facie case for the claim or defense that is asserted. Reliance National Indemnity v. Knowles Industrial Services, 2005 ME 29, <[ 9, 868 A.2d 220, 224-25.

A genuine issue is raised "when sufficient evidence requires a fact-finder to choose between competing versions of the truth at trial." Parrish v. Wright, 2003 ME 90, <[ 8, 828 A.2d 778, 781. A material fact is a fact that has "the potential to affect the outcome of the suit." Burdzel v. Sobus, 2000 ME 84, <[6,750 A.2d 573,575. "If material facts are disputed, the dispute must be resolved through fact-finding." Curtis v. Porter, 2001 ME 158, <[7, 784 A.2d 18,21-22.

II. Plaintiff's Claims The Plaintiff claims that the Defendant violated the Whistleblowers'

Protection Act ("WPA) and the Maine Human Rights Act ("MHRA") in its termination of the Plaintiff. See 26 M.R.S.A. § 833(1)(B) and (D); 5 M.R.S.A § 4572(1)(A).

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