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Costa v. Cumberland Farms, Inc.

United States District Court, District of Maine

May 31, 2014

L. JAMES COSTA, Plaintiff
v.
CUMBERLAND FARMS, INC., Defendant

Plaintiff L JAMES COSTA represented by GUY D. LORANGER LAW OFFICE OF GUY D. LORANGER LEAD ATTORNEY ATTORNEY TO BE NOTICED.

Defendant CUMBERLAND FARMS INC represented by DAVID A. STROCK, PHILIP J. MOSS FISHER & PHILLIPS, LLP LEAD ATTORNEY ATTORNEY TO BE NOTICED.

RECOMMENDED DECISION ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

John H. Rich III United States Magistrate Judge.

The defendant, Cumberland Farms, Inc. (“Cumberland Farms”), moves for summary judgment in its favor on the plaintiff, its former employee, L. James Costa’s, remaining claims against it, alleging (i) age-based discrimination in violation of the Maine Human Rights Act (“MHRA”), 5 M.R.S.A. § 4551 et seq., and (ii) retaliation in violation of the Maine Whistleblowers’ Protection Act (“MWPA”), 26 M.R.S.A. § 831 et seq. See Defendant Cumberland Farms, Inc.’s Motion for Summary Judgment (“Motion”) (ECF No. 32) at 1-2; Plaintiff’s Complaint for Hostile Work Environment, Retaliation, Medical Discrimination (“Complaint”) (ECF No. 2-2), attached to Notice of Removal (ECF No. 2).[1] Cumberland Farms also seeks summary judgment on Costa’s request for punitive damages. See Motion at 20-21.

For the reasons that follow, I recommend that the court grant the Motion with respect to Costa’s MWPA claim and request for punitive damages, and otherwise deny it.

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, 369 F.3d 594, 598 (1st Cir. 2004). “A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party.” Rodríguez-Rivera v. Federico Trilla Reg’l Hosp. of Carolina, 532 F.3d 28, 30 (1st Cir. 2008) (quoting Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008)). “A fact is material if it has the potential of determining the outcome of the litigation.” Id. (quoting Maymi v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008)).

The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether this burden is met, the court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Santoni, 369 F.3d at 598. Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (citation and internal punctuation omitted); Fed.R.Civ.P. 56(c). “As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party.” In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (citation and internal punctuation omitted).

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 Loc. R. 56. The moving party must first file a statement of material facts that it claims are not in dispute. See Loc. R. 56(b). Each fact must be set forth in a numbered paragraph and supported by a specific record citation. See 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[.]” Loc. 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 Loc. 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.” Loc. 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., 527 F.3d 209, 213-14 (1st Cir. 2008); Fed.R.Civ.P. 56(e)(2) (“If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion[.]”).

II. Factual Background

The parties’ statements of material facts, credited to the extent that they are either admitted or supported by record citations in accordance with Local Rule 56, with disputes resolved in favor of Costa as the nonmovant, reveal the following.[2]

Costa graduated from South Portland High School in 1966 and served in the Marine Corps from 1966 to 1968. Plaintiff’s Separate Statement of Material Facts (“Plaintiff’s Additional SMF”) (ECF No. 38) ¶ 1; Defendant Cumberland Farms, Inc.’s Reply to Additional Statement of Fact (“Defendant’s Reply SMF”) (ECF No. 40) ¶ 1. Costa, who has lived in Hollis, Maine, since 1986, worked as a driver for Cumberland Farms from December 1975 until August 2000. Defendant Cumberland Farms, Inc.’s Statement of Material Facts (“Defendant’s SMF”) (ECF No. 33) ¶ 1; Plaintiff’s Opposition to Defendant’s Material Facts (“Plaintiff’s Opposing SMF”) (ECF No. 37) ¶ 1. He then worked as a transportation supervisor until January 4, 2012. Id.

Transportation supervisors are responsible for overseeing Cumberland Farms’ transportation operations and drivers at one or more terminals, as well as having temporary supervisory responsibilities for other terminals when transportation supervisors are on a leave of absence. Id. ¶ 2. The drivers transport petroleum to stores and gas stations. Id.

During Costa’s employment, Cumberland Farms had operations at terminals in South Portland, Maine; Chelsea, Massachusetts; Providence, Rhode Island; Albany (or Rensselaer), New York; Linden, New Jersey; New Haven, Connecticut; Woodbury, New Jersey; Brooklyn, New York; Holtsville, New York; Tampa, Florida; Cape Canaveral, Florida; Fort Lauderdale, Florida; and East Boston, Massachusetts. Id. ¶ 4. Cumberland Farms has employed the following individuals as transportation supervisors, in addition to Costa: Jerry Backus, Anthony Ritz, Joseph Becker, David Campbell, Austin Burke, Joseph Lech, Stephen Palumbo, and Bruce Twombly. Id. ¶ 5.

When Costa became a transportation supervisor, he took over supervision of both the Chelsea and South Portland drivers. Plaintiff’s Additional SMF ¶ 4; Defendant’s Reply SMF ¶ 4. When Costa became a transportation supervisor, the company had 11 terminals. Id. ¶ 5. When his employment was terminated, the company had 13 terminals. Id.

In September 2008, Dennis (“Greg”) Scott was hired as the vice-president of transportation for Cumberland Farms. Id. ¶ 6. In the summer of 2010, Scott became the vice-president of terminal operations and the transportation group. Defendant’s SMF ¶ 7; Plaintiff’s Opposing SMF ¶ 7. At that time, Costa was the oldest transportation supervisor. Plaintiff’s Additional SMF ¶ 23; Defendant’s Reply SMF ¶ 23. In June 2010, Edward Potkay moved from his position as fleet administration manager to become the director of fleet operations. Defendant’s SMF ¶ 6; Plaintiff’s Opposing SMF ¶ 7. The fleet administration manager is in charge of company vehicles and maintenance. Id. As the director of fleet operations, Potkay supervised Manuel Estevez, who had supervised the transportation supervisors since 2006 to 2007. Id. Prior to June 2010, Potkay had worked for Cumberland Farms for almost 30 years. Id.

Cumberland Farms’ employee handbook contains its equal employment opportunity and anti-harassment policies, together with a procedure that employees should use to report any perceived harassment or retaliation. Defendant’s SMF ¶ 76; Exh. A (ECF No. 33-15) to Affidavit of Michelle Hayes (“Hayes Aff.”) (ECF No. 33-14), attached to Defendant’s SMF. The company regularly distributes these policies to its employees. Defendant’s SMF ¶ 76; Hayes Aff. ¶ 3.

A. Friction Between Costa and Potkay

Prior to June 2010, Costa and Potkay had “butted heads” many times during their employment at Cumberland Farms. Defendant’s SMF ¶ 31; Plaintiff’s Opposing SMF ¶ 31. In fact, prior to June 2010, Costa and Potkay had several heated discussions about a variety of subjects, such as Potkay’s use of outside vendors, his allocation of expenses to the terminals, and his attitude toward drivers and mechanics. Id. Costa felt that, prior to June 2010, Potkay was abusive and disrespectful toward the drivers. Id.

Costa described an example of the longstanding personality conflict between himself and Potkay involving a heated discussion in 2005 about a company car that Potkay had ordered for Costa. Id. ¶ 32. Potkay, who was responsible for purchasing Costa’s company car, refused to get the features that Costa requested. Id. The day after their heated discussion, Costa suffered a heart attack for which he required hospitalization. Id. After Costa left the hospital, he contacted Potkay’s supervisor about the dispute, and Potkay bought Costa the company car he wanted. Id. According to Costa, his relationship with Potkay was never the same after the events in 2005; “he was so angry that he had to order another car for me that he made it very, very obvious. And it was just downhill.” Id.[3]

Before Potkay became Costa’s direct supervisor, “[i]t was well known that [Potkay] and [Costa] did not have a great working relationship.” Id. ¶ 62. Costa believed that Potkay was “offensive to almost everyone who ever worked for him” and “watched him for years intimidate people.” Id.

B. Controversy Over Food and Bar Bill Tabs

Costa had concerns about alleged “fraudulent billing practices.” Plaintiff’s Additional SMF ¶ 38; Defendant’s Reply SMF ¶ 38.[4] The fraudulent billing practices involved Scott, “Harwood” (presumably, Carl Wood), Estevez, and Potkay putting excessive liquor bills or bar tabs on the personal credit cards of the supervisors so that the charges would not appear on their own credit cards and be subject to disclosure to upper management. Id. ¶ 39.[5] They told Costa, “if we put it on our credit card, then we have to submit it to our boss and we can’t do that.” Id. ¶ 40.[6] The bar bills were excessive, greater than $400 to $500. Id. ¶ 42.[7]

The transportation supervisors, Safety Manager Wayne Thornhill, and Scott, Potkay, and Estevez had quarterly meetings. Defendant’s SMF ¶ 8; Costa Dep. at 97.[8] Beginning in 2008 or 2009, Scott and Potkay requested that one of the transportation supervisors or Thornhill pay for group charges or tabs, including liquor charges, with their personal credit card. Defendant’s SMF ¶ 8; Costa Dep. at 93-94.[9] The stated reason for this practice was that Scott or Potkay wanted to control the reimbursement approval process rather than submitting the expense to one of their supervisors for approval. Defendant’s SMF ¶ 9; Backus Dep. at 25-26. The managers used the phrase, “it is better to approve, than to be approved.” Id. The group bills or tabs that were paid with personal credit cards were always reimbursed. Defendant’s SMF ¶ 9; Costa Dep. at 94.

An incident occurred in Connecticut in 2011 at a company quarterly meeting in which Scott and Potkay asked Costa to put the excessive alcohol tab on his personal credit card, with Potkay explaining, “look, you put it on your credit card and we ok it no questions asked. We don’t put it on ours because we don’t want it to turn up above. That’s when I said, you know, I’m not comfortable with that. And then I can’t remember – I’m almost sure it was Ed, Ed said, how about putting it on your room, and I said, if that’s what you want put it on my room, but I don’t feel comfortable putting it on my credit card. They then put it on my hotel room.” Plaintiff’s Additional SMF ¶ 44; Defendant’s Reply SMF ¶ 44.[10]

At the time of the event, it was a common practice for transportation supervisors to use a personal credit card to pay for expenses. Defendant’s SMF ¶ 13; Costa Dep. at 91; Backus Dep. at 39.[11] Cumberland Farms did not issue company credit cards to the transportation supervisors. Id. After Costa declined to use his personal credit card to pay for the group’s bill or tab, neither Potkay nor Scott treated him differently. Defendant’s SMF ¶ 14; Costa Dep. at 99-101.[12]

Other transportation supervisors, including Backus, had been asked to pay for group expenses with their personal credit cards. Defendant’s SMF ¶ 15; Backus Dep. at 24-25. Backus did not believe that he would get in trouble for using his personal credit card to pay for group expenses, even though he felt that the expenses sometimes were excessive. Id.[13]

Prior to the event at which Costa declined to use his personal credit card to pay for the group’s bill, several other transportation supervisors had informed Scott and Potkay that they did not feel that it was appropriate for the transportation supervisors to use their personal credit cards to pay for the group’s tab, including Polumbo, Backus, Campbell, and Lech. Defendant’s SMF ¶ 16; Plaintiff’s Opposing SMF ¶ 16. These concerns were raised by transportation supervisors in group meetings and individually. Id. Thornhill complained on several occasions that he felt it was inappropriate to be asked to pay for the group’s bill with his personal credit card and that the amount of the expenses was excessive. Id. ¶ 17.

On November 30, 2010, Potkay participated in a telephone conference with Costa and Estevez regarding an email exchange between Potkay and Costa the prior day. Id. ¶ 26. In the email exchange, Costa expressed concern about the tone of an email written by Potkay. Id. During the telephone conference, Potkay said that “[Costa] was going to listen and he was going to talk.” Id. ¶ 27. Potkay also criticized Costa’s attitude toward him. Id. When Costa asked Potkay to “hang on a minute” because what he was saying was “completely wrong, ” Potkay told Costa not to speak to him in that manner. Id. Potkay continued, “Let me tell you something, you want to shut your mouth, this is going to be a one-way conversation, do you understand me?” Id.

Costa, who felt that Potkay misunderstood a sequence of events, asked if Potkay had read his email in which Costa attempted to explain the correct sequence of events. Id. ¶ 28. Potkay responded that he did not bother to read it and terminated the conversation. Id.

After the conference call ended, Costa called Estevez to complain about Potkay’s conduct toward him during the call. Defendant’s SMF ¶ 29; Costa Dep. at 105. Costa told Estevez that Potkay’s conduct on the telephone conference had created a “hostile work environment.” Id. He also complained to Estevez that he did not feel it was appropriate that Potkay had asked him to pay for the group’s tab with his personal credit card. Defendant’s SMF ¶ 29; Costa Dep. at 103-04.[14]

After complaining about the “fraudulent billing practices, ” Costa requested that Estevez inform the Human Resources Department: “I wanted him to know that I had had enough of that and [Potkay’s] practices, and I wanted those specifics to go to HR. And that was the total conversation and then I hung up.” Id. ¶ 49. The next day, Estevez called Costa and indicated that he had not gone to Human Resources but had only spoken to Potkay. Id. ¶ 50. Costa testified:

. . . I said wait a minute, you didn’t take this to HR, and he said, no, he said, I talked to Ed about it. And I said, Manny, I specifically asked that this go to HR because I have had it, I have had it with this. And he said, Jimmy, I talked to Ed and that’s the end of it. And I reiterated that what I said and he shot right back at me, Jimmy, I said that’s the end of it right here, it ends here. He said, it ends here.

Id.[15] Costa also complained to Backus, Campbell, Scott, and Potkay himself about the use of credit cards and the alcohol expenses. Id. ¶ 46.[16]

After the November 30, 2010, discussion with Estevez, Costa did not raise his concerns about Potkay’s conduct during the conference call or the expense reimbursement issue with Estevez or any other supervisor until after he was laid off on January 4, 2012. Defendant’s SMF ¶ 30; Costa Dep. at 118.[17]

On November 30, 2010, when Costa spoke with Estevez, Costa did not know whether Potkay’s conduct during the earlier conference call violated any law. Defendant’s SMF ¶ 34; Costa Dep. at 120-21.[18] However, Costa testified that he felt a lot of things were illegal. Id. ¶ 53.[19]

The reference to Potkay’s “fraudulent billing practices” contained in paragraph 12 of the Complaint is Costa’s complaint to Estevez on November 30, 2010, concerning Potkay’s request that Costa use his personal credit card to pay for expenses incurred during a meeting of transportation supervisors and their managers. Defendant’s SMF ¶ 35; Plaintiff’s Opposing SMF ¶ 35.[20] Costa had “no idea” whether the reimbursement practice violated a law regarding theft or stealing. Defendant’s SMF ¶ 35; Costa Dep. at 95.[21]

Costa explained that he did not know whether Potkay had requested that he engage in illegal conduct but that he felt the request was not appropriate:

I didn’t know whether it was illegal or not, but my feeling was don’t do it, so my gut feeling was yeah, there is something wrong here. When management is telling you that if you put it on your credit card, they can okay it, but they don’t want it to go further than their pay grade, then something is wrong here, and that’s why I refused to do it.

Defendant’s SMF ¶ 36; Costa Dep. at 181.

When asked what he thought might be illegal about Potkay’s practice of asking transportation supervisors to put alcohol charges on their personal credit cards, Costa compared the request to a request to jump off a bridge:

Just the fact that I was being asked to do something they didn’t want to do themselves. That gives you a clue that something is wrong here. If somebody says how about jumping off the bridge and you say, well, you jump first, no, that’s all right, you go ahead first, you think maybe something is wrong. I mean let’s use common sense.

Defendant’s SMF ¶ 37; Costa Dep. at 181-82.[22]

Costa had no idea whether the reimbursement practice was against company policies. Defendant’s SMF ¶ 38; Costa Dep. at 94-95, 99-100.[23] He felt that it was not appropriate for Potkay to ask him to use his personal credit card to pay for reimbursable business expenses because Cumberland Farms took too long to reimburse him for them. Defendant’s SMF ¶ 38; Costa Dep. at 102-03.[24]

Estevez did not report the complaint about reimbursement issues made by Costa during their November 30, 2010, telephone call to the Human Resources Department because he decided that the concerns were not serious enough to warrant such a report. Defendant’s SMF ¶ 40; Estevez Dep. at 62.[25] Estevez did not investigate the complaints made by Costa during that telephone call because he was already well aware of their factual basis and did not feel that they warranted further action. Defendant’s SMF ¶ 41; Estevez Dep. at 61-62.[26]

In December 2010, Costa spoke to Wayne Thornhill, the safety manager. Plaintiff’s Additional SMF ¶ 54; Defendant’s Reply SMF ¶ 54. Costa told Thornhill of his conversation with Potkay. Id. ¶ 55. Costa testified that Thornhill “told me to be very careful, that I had a bull’s eye on my back. And I said what are you talking about and he said, I just wanted to tell you that you have to be careful about what you say and keep your cool. And I said, where is this coming from, and he said, it’s coming from above, and I said, Ed and Greg[], and he said yes.” Id. The conversation with Thornhill was within days of the phone conversation with Potkay and Estevez on November 30. Id. ¶ 56.

C. Costa’s Job Is Restructured

In July 2010, Cumberland Farms decided to move the East Boston terminal to Chelsea. Id. ¶ 24. The move would take place in October 2010. Id. As a result, Costa and Backus were to share responsibility for the Chelsea terminal. Plaintiff’s Additional SMF ¶ 24; Costa Dep. at 57.[27]Costa was not happy with having to ...


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