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Federal Court rules in favor of whistleblower’s right to retain recordings of conversations with supervisors regarding their reasons for adverse employment action against him until after those supervisors are questioned about their reasons

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).

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