Maine Employment Lawyer Blog

An investigator with the Maine Human Rights Commission (MHRC) has found that On the Edge Chipping in Phillips, Maine unlawfully fired Daniel Harnden, a skidder operator, because Mr. Harnden complained about charges the company put on his personal John Deere account. Mr. Harnden complained to On the Edge about the charges on December 4, 2009 and called John Deere on January 15, 2010 to tell it that On the Edge made charges to his account. Days later, On the Edge fired Mr. Harnden allegedly for performance issues.

The MHRC investigator found that most of the alleged performance issues On the Edge claimed it fired Mr. Harnden for stemmed from incidents that occurred long before Mr. Harnden complained about On the Edge making charges to his John Deere account. If On the Edge was really going to fire Mr. Harnden for those incidents, it would have done so long before Mr. Harnden made his complaints about the John Deere charges.

The MHRC will vote whether to adopt or reject the investigator's recommendation at its next meeting on October 31, 2011. If the MHRC agrees with the investigator, and finds reasonable grounds to believe that On the Edge violated Mr. Harnden's rights, the MHRC will attempt to facilitate a settlement between Mr. Harnden and On the Edge. If there is no settlement, a lawsuit could ensue.

Today, the U.S. District Court in Portland, Maine denied Lincare, Inc.'s motion to dismiss a claim of retaliation under the False Claims Act (FCA). The anti-retaliation provisions of the FCA protect whistleblowers from retaliation when they "pursue, investigate, or contribute to an action exposing fraud against the [federal] government."

Former Lincare employee Adam Jewell filed his FCA retaliation claim after Lincare terminated his employment. Mr. Jewell's lawsuit alleges that Lincare terminated his employment because he reported to Lincare that his immediate supervisor was forging signatures on documents and backdating documents that Lincare submitted to the government for Medicare and Medicaid reimbursements. Lincare argued that terminating an employee for blowing the whistle on his supervisor's practice of forging and backdating Medicare and Medicaid reimbursement documents does not violate the FCA. The Court rejected this argument. It held that Lincare could not terminate Mr. Jewel for reporting his supervisor because his reports "concerned Lincare's fraudulent billing practices."

Attorneys Peter Thompson, Chad T. Hansen, and Allison Gray, of the Maine Employee Rights Group, represent Mr. Jewell in this lawsuit.

The Maine Employee Rights Group is currently representing two whistleblowers in a lawsuit against Alutiiq, LLC and some related companies (collectively referred to here as Alutiiq). Alutiiq entered into a contract with the Navy and began to provide security services at the Portsmouth Naval Shipyard (PNSY) in 2009. Shortly after, Alutiiq employees Craig Manfield and Janice Hendricks, the two whistleblowers who have brought this lawsuit, began to oppose Alutiiq's unlawful activity.

Among other things, Mr. Manfield opposed Alutiiq's attempts to bring firearms and ammunition onto PNSY grounds without proper authorization. He later complained about the fact that Alutiiq armed security guards with ammunition that was not as lethal as the Navy contract required. He also complained about shoddy gear which negatively impacted the safety of him and his co-workers.

Ms. Hendricks, among other things, opposed Alutiiq's failure to pay employees for overtime they worked. Ms. Hendricks, a gay woman, also experienced discrimination because of her sex and/or sexual orientation. She reported this discrimination to the company as well.

Due to their opposition to Alutiiq's unlawful activity, and in Ms. Hendricks' case her sex and/or sexual orientation, Alutiiq took adverse actions against them. Among other discriminatory and retaliatory acts, Alutiiq fired Mr. Manfield and disciplined Ms. Hendricks for illegitimate reasons.

The Maine Employee Rights Group is currently representing a whistleblower in a lawsuit against Praxair, Inc., one of its subsidiaries, and a company it acquired named Sermatech International. The whistleblower, Roger Lehoux, worked for Sermatech in Biddeford before Praxair acquired it.

While employed at Sermatech, Mr. Lehoux worked on the airplane parts that the company manufactured. His job was plasma sprayer. Mr. Lehoux repeatedly complained about management cutting corners to increase production at the expense of safety. For instance, he opposed the practice of cutting pieces off of blasting cabinets to increase production. Silica dust leaked out of the blasting cabinets because these pieces were cut off of them. Employees had to inhale this dust and it also collected on the airplane parts. Due to the dust, the anti-corrosive paint did not properly adhere to the parts. Through its corner cutting, the company put employee health in danger, violated OSHA regulations, and violated FAA regulations.

The lawsuit alleges that Sermatech fired Mr. Lehoux because of his repeated complaints about the company's unlawful and unsafe practices. Sermatech claimed that it "laid off" Mr. Lehoux due to lack of work. This alleged layoff resulted in one person losing his job--Mr. Lehoux. The "layoff" occurred less than 2 weeks after Mr. Lehoux spoke up about his safety concerns during a training session held to address the fact that some airplane parts were failing inspection and being sent back to the company. Sermatech's claim that there was a lack of work was not true. At the time of his "layoff" there was a back log of work in Mr. Lehoux's department and employees from other areas in the facility had to come in to help out because of the back log.

After it fired him, Mr. Lehoux filed a complaint with the Occupational Safety and Health Administration (OSHA). An OSHA investigator went to the Biddeford facility and found four "serious" violations of employee health and safety regulations. He also found that some of the unsafe corner cutting Mr. Lehoux complained about was still ongoing.

Manske v. UPS Cartage Services Inc.

Chief Judge John A. Woodcock of the United States District Court of Maine in Bangor recently ruled in favor of whistleblower plaintiff Dennis Manske, by upholding Magistrate Judge John Rich's decision to allow Mr. Manske and his counsel to delay production of certain audio recordings, made by him of conversations he had with his supervisors, until after Mr. Manske's attorneys has an opportunity to question those supervisors about their conduct in deposition.

Mr. Manske, who is represented by Maine Employee Rights Group ("MERG") filed suit in U.S. District Court against his former employer UPS Cartage Services, Inc. on July 30, 2010. In his complaint, Mr. Manske alleges that his managers extended his probationary period and forestalled his union rights in July 2008 and then terminated his employment in August 2008 after Mr. Manske repeatedly wrote up mechanical and safety issues with the trucks he was being asked to drive. Mr. Manske alleges that the extension of his probation and termination if his employment were in retaliation for his reports about the mechanical and safety issues with his trucks and that this retaliation violates the federal Surface Transportation Assistant Act ("STAA") and well as the Maine Whistleblowers' Protection Act ("MWPA") and the Maine Human Rights Act ("MHRA").

The STAA protects employees who report violations, refuse to commit violations, or participating in proceedings relating to possible violations of the federal regulations relating to trucking from retaliation by their employers and provide employees who have been retaliated against with a number of remedies including back pay, reinstatement, compensatory damages, and punitive damages.

The MWPA and MHRA prohibit employers from retaliating against employees who, among other things, report what the employee reasonably believes to be a violation of law or condition that endangers the health or safety of the employee or another. Like the STAA, the MWPA and MHRA permit aggrieved employees to recover back pay, reinstatement, compensatory damages, and punitive damages.

During the course of litigation, the existence of the recordings was brought to the attention of the defendant. While Mr. Manske, through his attorneys, argued he had a right to withhold those recordings until after his attorneys could depose the supervisors recorded, UPS Cartage argued Mr. Manske had no such right and argued he must hand over the recordings immediately. Judge Rich determined it was within the court's discretion, and within the Federal Rules of Evidence, to grant Mr. Manske's counsel the opportunity to hold back those recordings until after his attorneys could question the defendant's supervisors, about their reasons for the extension of Mr. Manske's probation, and Judge Woodcock readily agreed in a June 8, 2011 opinion.

The Decision preserves the impeachment value of this type of evidence. As set out by Judge Woodcock in the Decision, "[i]n employment cases, where shifting explanations for adverse employment action may evince retaliatory motive, preventing management witnesses from tailoring their testimony to prior comments is of particular importance to a plaintiff's case." Manske v. UPS Cartage Services, Inc. --- F.Supp.2d ----, 2011 WL 2259243 (D.Me. 2011).

On April 11, 2011, the Maine Human Rights Commission (MHRC) found that the moving and storage company Parker K. Bailey & Sons, Inc. of Waterville fired Rodney Witham because he blew the whistle on the company's illegal deductions from employees' pay. According to Mr. Witham and another witness, he complained to the company about these illegal deductions and, when the company did not change its practices, he complained to the Maine Department of Labor (MDOL). In response to Mr. Witham's complaint, MDOL investigated Parker K. Bailey & Sons and found that it had, in fact, illegally deducted money from employees' paychecks. A couple months later, Parker K. Bailey & Sons terminated Mr. Witham claiming that it had to eliminate his truck driver position due to financial considerations.

In finding against the company, the MHRC found it noteworthy that Parker K. Bailey & Sons advertised that it was looking to hire new truck drivers shortly after it terminated Mr. Witham. According to a witness, the General Manager said that the company was looking for a driver to replace Mr. Witham. This evidence contradicted Parker K. Bailey & Sons' claim that it eliminated Mr. Witham's position. Furthermore, a secretary for the company told a witness after Mr. Witham contacted MDOL that Mr. Witham should "watch himself" because management was looking for a reason to fire him.

Under Maine's Whistleblower Protection Act, an employer may not retaliate against an employee because he complains about the employer's unlawful activity. If you believe your employer has discriminated against you because you complained about its unlawful activity, you should contact an experienced employment lawyer to discuss your rights.

On February 4, 2011, Judge Woodcock, of the U.S. District Court in Bangor, ruled that a jury could reasonably find that Correctional Medical Services, Inc. fired a whistleblower named Thomas Halkett because he blew the whistle on Correctional Medical Services' (CMS) allegedly unlawful activity.

CMS provides health care to prison inmates across the country. It is headquartered in St. Louis, Missouri. Mr. Halkett is a licensed clinical professional counselor. In connection with his employment at CMS, he provided mental health care to inmates from Downeast Correctional Facility in Machiasport, Maine.

Throughout the course of his employment, Mr. Halkett repeatedly complained about what, he believed to be, illegal breaches of confidentiality laws. For instance, he complained that some nurses illegally removed documents from the medical file of an inmate. He alleged that these nurses removed the documents in order to defend themselves against a complaint filed with the Maine Board of Nursing. Judge Woodcock held that there was enough evidence for a jury to reasonably conclude that CMS fired Mr. Halkett because of his opposition to these illegal activities. CMS denies these allegations. As such, a jury will likely have to decide what actually happened.

On January 19, 2011, Judge Woodcock, of the U.S. District Court in Bangor, ruled that a jury could reasonably find that Crisis & Counseling Centers, Inc. fired a whistleblower named Ellen Gammon because she blew the whistle on Crisis & Counseling's allegedly illegal and unsafe business practices.

Crisis & Counseling provides counseling services, crisis interventions, substance abuse counseling, and related educational services for clients and families at its residential and outpatient crisis facilities. Ms. Gammon worked for Crisis & Counseling as a crisis worker in its mobile crisis unit. The mobile crisis unit provided 24-hour telephone and walk-in counseling services as well as off-site mental health assessments and evaluations, which often occurred in clients' homes.

Ms. Gammon claims that she opposed Crisis & Counseling's fraudulent practice of billing clients for work it did not do. She also claims that she opposed unsafe practices such as ignoring safety concerns about certain clients. Judge Woodcock held that there was enough evidence for a jury to reasonably conclude that Crisis & Counseling fired Ms. Gammon because of her opposition to these, and other, illegal and/or unsafe activities. Crisis & Counseling denies these allegations. As such, a jury will likely have to decide what actually happened.

Before Ms. Gammon filed this case in court, she brought it before the Maine Human Rights Commission (MHRC). The MHRC investigated Ms. Gammon's case and found that there were reasonable grounds to believe that Crisis & Counseling fired her because she blew the whistle on these allegedly illegal and/or unsafe practices.

Nurses at Eastern Maine Medical Center ("EMMC") went on strike November 22, 2010 because they and EMMC have not reached agreement on a new collective bargaining agreement. The nurses' union and hospital management cannot reach agreement on the issue of staffing levels. The nurses believe that EMMC has dangerously cut back on staffing levels, putting patients' safety at risk.

"They cut back the total number of nurses, then they cut back the hours," said nurse Bobbi Coombs, who has worked at EMMC for 23 years. "It is getting harder and harder to provide the care we want to give."

While these nurses have chosen collective action to oppose what they believe are threats to patient safety, other nurses oppose threats to patient safety on their own. If you are a nurse and your employer retaliates against you because you expressed concerns about patient safety, either through collective action or on your own, you should contact an experienced employment lawyer to learn about your rights.

Fred Cyr, the former chief operator of Gardiner's waste-water treatment plant, claims that the city forced him out of his job because he complained about health and safety issues at the plant. More specifically, he claims that he complained about vandalism which, in some instances, caused raw sewage to leak out into the Kennebec River. According to Mr. Cyr, the Director of the city's Wastewater and Public Works Department created a hostile work environment and took adverse actions against him because of his complaints. The city maintains that Mr. Cyr's whistleblower claim is "baseless."

Mr. Cyr's whistleblower claim is currently pending with the Maine Human Rights Commission (MHRC). The MHRC is the state agency charged with enforcing Maine's Whistleblower Protection Act (MWPA). The MHRC typically conducts an investigation before it decides whether reasonable grounds exist to believe that an employer has violated the MWPA. The MHRC has not completed its investigation in this case yet.

On October 13, 2010, the U.S. Supreme Court heard oral argument in Kasten v. St. Gobain Performance Plastics Corp. In Kasten, the Seventh Circuit Court of Appeals, in Chicago, held that St. Gobain did not violate the law when it retaliated against Mr. Kasten because he complained about St. Gobain's violations of the Fair Labor Standards Act (FLSA). FLSA is the federal law that requires employers to pay employees overtime pay and a minimum wage. FLSA has a whistleblower protection section which prohibits employers from retaliating against employees who "file" complaints about violations of FLSA.

The Seventh Circuit held that St. Gobain could retaliate against Mr. Kasten because he failed to put his complaint about FLSA violations in writing. It reasoned that a complaint is not "filed" unless it is in writing. The U.S. Supreme Court will resolve a disagreement between various federal appeals courts over this issue. Some courts have found that employers may not retaliate against employees who make oral complaints. Some courts, like the Seventh Circuit, have found that employees are only protected from retaliation if they make written complaints.

Not all whistleblower protection laws require employees to make written complaints but some may. To be safe, you should contact an experienced employment lawyer before you blow the whistle on your employer's unlawful activities.

On May 24, 2010, a Cumberland County Superior Court jury awarded Michael Afthim $1,015,000 in damages in connection with Mr. Afthim's lawsuit against his former employer, Alternative Labor Resources ("ALR") for violating Mr. Afthim's rights under the Maine Whistleblowers' Protection Act and defamation.

Mr. Afthim was a superintendent employed by ALR. Mr. Afthim became concerned about a number of safety issues in the warehouse that he ran including the lack of ventilation, the company's decision to use cheaper cotton gloves instead of splinter resistant leather gloves, and the insufficient staffing on the second shift. Mr. Afthim noted that the ventilation was so poor in the warehouse that his employees were inhaling significant amounts of dust and dirt. Mr. Afthim made multiple reports and complaints to ALR's management about the ventilation issue but ALR did nothing. Mr. Afthim also noted that the company's switch to cotton gloves from leather gloves was leading to significant splinters for his employees who spent their days constructing and repairing wooden pallets. Mr. Afthim also brought this concern to ALR without an adequate response. Mr. Afthim then noticed that due to understaffing that the workers on the second shift were rushing to keep up with their duties and he became very concerned that this would inevitably lead to a serious injury such as a fall or an accident with the fork lift. Once again, Mr. Afthim brought his concerns to ALR management and they expressed frustration with him for his complaints. ALR then fired Mr. Afthim for his complaints.

ALR subsequently lied about its reasons for terminating Mr. Afthim's employment and told the Department of Labor and the Maine Human Rights Commission that Mr. Afthim had been terminated for poor performance. Also, Mr. Afthim was forced to disclose ALR's false explanation for his termination to potential employers who would routinely ask why he had been terminated from his last place of employment. As a result Mr. Afthim suffered significant lost wages.

The first step in pursuing a whistleblower retaliation case in Maine is to file a Charge of Discrimination with the Maine Human Rights Commission. Mr. Afthim filed a Charge of Discrimination with the assistance of his attorneys. The Maine Human Rights Commission assigned an investigator and after investigating the case concluded that ALR had unlawfully retaliated against Mr. Afthim.

Mr. Afthim then filed his case in court. The court concluded that 1) Mr. Afthim had been terminated because of his reports about his employees' safety in violation of the Maine Human Rights Act ("MHRA") and the Maine Whistleblowers' Protection Act and then defamed Mr. Afthim which made it all the more difficult for him to find other work. The Court also ALR's actions violated the ("MWPA"), and Maine's common law prohibitation on defamation.

On May 24, 2010, the jury concluded that Mr. Afthim was entitled to $115,000 for lost wages, $200,000 for compensatory damages, and $700, 000 for punitive damages.

Maine's Whistelblower Protection Act, 26 M.R.S.A. Sec. 831 et. seq., prohibits employers from terminating or otherwise retaliating against their employees for making good faith complaints about things that the employee believes to be unlawful and conditions that they reasonably believe put at risk the health and safety of individuals. The Act also protects employees who refuse to carry out directives from their employers that they believe to be unlawful or that they reasonably believe create a risk of serious injury or death to themselves or others. The Act also prohibits employers from retaliating against employees for participating in a public investigation, hearing, or trial. Last, the Act protects workers in the health care field from reporting what they reasonably believe to be deviations from the applicable standard of care.

When a jury finds that an employer has violated an employee's rights in the Maine Whistleblowers' Protection Act, they may award the employee their lost wages and benefits, their attorneys fees, litigation costs, compensatory damages to compensate the employee for the harms and losses associated with the retaliation, and punitive damages to punish an employer.

Mr. Afthim was represented by Peter Thompson & Associates.

There are federal and state laws that protect truck drivers in Maine who refuse to operate illegally. For instance, if you have refused to drive longer than the DOT allows, refused to doctor your logbook, refused to drive an unsafe truck, or complained about violations of DOT regulations, the law prohibits your employer from retaliating against you. (Incidentally, that was not an exhaustive list of illegal reasons for an employer to retaliate against you, just some examples.) The federal law that protects you is the Surface Transportation Assistance Act (STAA). In Maine, the Whistleblower Protection Act (WPA) also protects you.

While it is illegal for employers to retaliate against truck drivers who refuse to violate the law, or complain about violations of the law, it is sometimes hard to prove such retaliation took place. It is even harder to prove retaliation took place if you do not have a good lawyer on your side. So, if you believe that your employer is going to retaliate against you, or has already retaliated against you, you should contact an experienced employment lawyer who is knowledgeable about the STAA and Maine's WPA.

The Maine Supreme Court issued its decision in a whistleblower case, Maine Human Rights Commission et al. v. Saddleback, Inc. et al., on July 16, 2009. The Maine Human Rights Commission (MHRC) brought this case against Saddleback claiming that Saddleback had violated Maine's Whistleblower Protection Act (MWPA). The MWPA prohibits employers from retaliating against employees when they report unsafe or unlawful activities. The case centered around the termination of Robert Duggan, Jr.'s employment. (For those who are not from Maine, Saddleback is a ski area in central Maine.)

The relevant facts of the case, according to the Superior Court, were as follows:

Saddleback contracted with Mr. Duggan's employer, Integrity Electrical Installation & Service, Inc. (Integrity), to work on the installation of some snowmaking equipment. As an employee of Integrity, Mr. Duggan worked on this project as an electrician and foreman. During the course of his work, Mr. Duggan observed Saddleback employees working in an unlawful and unsafe manner. He observed Saddleback employees drinking on the job. They were performing electrical work with high voltage electrical lines even though they did not have the proper licenses to do that kind of work. On one occasion, Mr. Duggan witnessed Saddleback employees backfilling boulders and debris on top of high voltage lines in violation of the Electrical Code.

Mr. Duggan complained about this unlawful and unsafe behavior to representatives of Saddleback and Integrity. Mr. Duggan warned Integrity that he intended to report this unlawful and unsafe behavior to the Maine State Electrician's Examining Board; which he subsequently did. Saddleback became aware that Mr. Duggan had called the State to report them and, in retaliation, told Integrity to terminate Mr. Duggan. Integrity complied with Saddleback's wishes and terminated Mr. Duggan. The MHRC argued that Integrity complied with Saddleback's wishes because it was concerned about losing its contract with Saddleback.

Saddleback argued that it did not violate the MWPA because it did not employ Mr. Duggan. It argued that employees may only bring claims against their own employers under the MWPA. The Superior Court and the Maine Supreme Court rejected this argument. The courts concluded that a company like Saddleback may be held liable under the MWPA if it coerces another company to illegally retaliate against an employee.

The courts' decisions in this case appear to be inconsistent with a case the Maine Supreme Court decided in 2008, Costain v. Sunbury Primary Care, P.A. In Costain, the Maine Supreme Court ruled that the MWPA does not protect an employee from retaliation unless she complains about her own employer's unlawful activities. In Mr. Duggan's case, he did not complain about his own employer's unlawful activities--he complained about Saddleback's unlawful activities. As a Maine employment law firm, it will be interesting to see how courts in the future will attempt to reconcile these cases.