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Stark v. Hartt Transp. Systems, Inc.

United States District Court, D. Maine

August 11, 2014

JOHN STARK, Plaintiff,

Ordered Filed April 1, 2014

Decided March 31, 2014

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[Copyrighted Material Omitted]

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For Hartt Transportation Systems Inc, Defendant: MELINDA J. CATERINE, SHILOH D. THEBERGE, LEAD ATTORNEYS, FISHER & PHILLIPS, LLP, Portland, ME USA.

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Jon D. Levy, United States District Judge.

The United States Magistrate Judge filed his Recommended Decision (ECF No. 124) with the court on April 1, 2014, pursuant

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to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b). The defendant filed Objections to the Recommended Decision on April 18, 2015. (ECF No. 128.) The Plaintiff filed his Response to Defendant's Objection on May 5, 2014 (ECF No. 130), the Defendant filed its Reply on May 23, 2014 (ECF No.133), and the Plaintiff filed his Surreply on May 29, 2014. (ECF No. 135.) A hearing was held on the objections on July 31, 2014. Chad T. Hansen, Esq., appeared for Plaintiff, and Melinda Caterine, Esq., appeared for Defendant.

I have carefully reviewed and considered the Magistrate Judge's Recommended Decision, together with the entire record; I have made a de novo determination of all matters adjudicated by the Magistrate Judge's Recommended Decision; and I concur with the recommendations of the United States Magistrate Judge for the reasons set forth in his Recommended Decision.

It is therefore ORDERED that the Recommended Decision of the Magistrate Judge is hereby ACCEPTED.



John H. Rich III, United States Magistrate Judge.

Hartt Transportation Systems, Inc. (" Hartt" ) moves for summary judgment as to former employee John Stark's three claims against it, for (i) disability-based discrimination and breach of confidentiality in violation of the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12101 et seq. (Count I), (ii) retaliation in violation of the Surface Transportation Assistance Act of 1982 (" STAA" ), 49 U.S.C. § 31105 (Count II), and (iii) retaliation in violation of the Maine Whistleblower's Protection Act (" MWPA" ), 26 M.R.S.A. § 861 et seq., as enforced through the Maine Human Rights Act (" MHRA" ), 5 M.R.S.A. § 4551 et seq. (Count III). See Complaint (ECF No. 1) ¶ ¶ 1, 110-15; Defendant's Motion for Partial Summary Judgment (ADA/Confidentiality Claim) (" Defendant's S/J Motion/Confidentiality" ) (ECF No. 87) at 1, 10; Defendant's Motion for Partial Summary Judgment (ADA Discrimination/MWPA/STAA Claims) (" Defendant's S/J Motion/Remaining Claims" ) (ECF No. 86) at 1, 30.

In connection with its motions, Hartt also seeks to preclude Stark from relying, in opposing summary judgment, on facts set forth in his opposing statement of material facts that are not set forth in his additional statement of material facts. See Defendant's Expedited Motion Requesting Order Prohibiting Plaintiff From Relying on Any Additional Facts Contained in His Opposing Statement of Material Facts That Do Not Appear in His Additional Statement of Material Facts (" Defendant's Motion/Facts" ) (ECF No. 106).[1]

Stark cross-moves for summary judgment on his claim of violations of ADA confidentiality provisions but not on causation, acknowledging that there is a triable issue as to whether those alleged violations caused Hartt to terminate his employment. See Plaintiff's Motion for Partial Summary Judgment (" Plaintiff's S/J Motion" ) (ECF No. 84) at 1-2, 10.

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Oral argument was held before me on the parties' cross-motions for summary judgment on March 25, 2014.

For the reasons that follow, I grant in part and deny in part the Defendant's Motion/Facts and recommend that the court (i) grant the Plaintiff's S/J Motion as to Count I to the extent that Stark alleges that disclosures made on December 13 and 15, 2010, violated ADA confidentiality provisions, but otherwise deny it, (ii) grant the Defendant's S/J Motion/Confidentiality as to Count I to the extent that Stark alleges that the disclosure made on October 7, 2010, violated ADA confidentiality provisions and that there was any violation of the ADA examination provisions, but otherwise deny it, and (iii) grant the Defendant's S/J Motion/Remaining Claims as to Count III, Stark's claim of retaliation in violation of the MWPA, and Count I to the extent that Stark alleges discrimination based on a record of disability in violation of the ADA, but 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." Rodriguez-Rivera v. Federico Trilla Reg'l Hosp., 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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).

" This framework is not altered by the presence of cross-motions for summary judgment." Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir. 2003). " [T]he court must mull each motion separately, drawing inferences against each movant in turn." Id. (citation omitted); see also, e.g., Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996) (" Cross motions for summary judgment neither alter the basic Rule 56 standard, nor warrant the grant of summary judgment per se. Cross motions simply require us to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed. As always, we resolve all factual disputes and any competing, rational inferences in the

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light most favorable to the [nonmovant]." ) (citations 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

A. Plaintiff's S/J Motion

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 Hartt as the nonmovant, reveal the following.[2]

1. Stark Undergoes Two Pre-Employment Physical Examinations

Stark was employed by Hartt from October 8, 2010, until December 17, 2010, as an over-the-road (" OTR" ) driver, based out of Hartt's Auburn terminal. Plaintiff's Statement of Undisputed Material Facts (" Plaintiff's SMF" ) (ECF No. 85) ¶ 1; Defendant

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Hartt Transportation Systems, Inc.'s Response to Plaintiff John Stark's Statement of Undisputed Material Facts (" Defendant's Opposing SMF" ) (ECF No. 98) ¶ 1.

On October 6, 2010, Stark underwent a U.S. Department of Transportation (" DOT" ) physical examination, conducted by Dr. Kevin Flanigan at Concentra in Lewiston, Maine. Plaintiff's SMF ¶ 2; Defendant's Opposing SMF ¶ 2.[3] Dr. Flanigan concluded that Stark met the DOT standard, and Stark was issued a two-year DOT medical certificate. Id. ¶ 4.[4]

On October 7, 2010, Stark went to Central Maine Conditioning Clinic (" CMCC" ) for a separate post-offer, pre-employment job placement assessment (" JPA" ). Id. ¶ 5. During pre-employment physicals, CMCC classifies individuals into three color categories based upon its JPA. Id. ¶ 6.[5] Green means that the individual demonstrates the physical demands of the job. Id. Yellow means that he or she demonstrates the physical demands of the job, but there is some relevant history. Id. Red means that he or she did not safely demonstrate the physical demands of the job, and CMCC thinks the person would be unsafe to be hired. Id. Based on the results of the JPA, CMCC classified Stark as " green." Id. ¶ 7.[6]

The October 7, 2010, examination of Stark by CMCC was different from a DOT examination and was not a DOT examination. Id. ¶ 8.[7] As of July 2010, Hartt had started a pilot project with CMCC relating to the post-offer, pre-employment process. Id. ¶ 10. According to the pilot project, when a driver was offered a job at Hartt's Auburn office from July 2010 through December 2010, the offer would be contingent on meeting the requirements of the DOT physical and the JPA. Id. ¶ 11.[8] The DOT physical and the JPA were two separate requirements. Id. ¶ 12.[9] Stark did not complete a DOT examination with CMCC. Id. ¶ 13. Rather, he completed a JPA with CMCC, which is a separate pre-employment

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medical examination. Id.[10]

During the course of the October 7, 2010, assessment, Stark also completed a medical questionnaire and a signature page, and a CMCC employee completed a job placement questionnaire based on information that he provided. Id. ¶ 14.[11] CMCC uses the information provided on the medical questionnaire to assess whether a person can safely perform the JPA itself and the physical demands of the job of OTR driver, and whether it needs to obtain any information from the person's health care providers to make those determinations. Id. ¶ 16.[12]

2. CMCC Sends Fax to Hartt on October 7, 2010

CMCC faxed the results of the JPA to Hartt, and Hartt Human Resources Assistant Rose Rogers received them. Id. ¶ ¶ 17, 19.[13] The JPA results dated October 7, 2010, did not indicate that Stark required any reasonable accommodations or had any restrictions. Id. ¶ 20.

On or about December 9, 2010, Stark informed two of Hartt's employees that he was planning to see his Veterans Administration (" VA" ) doctor in connection with reports of pain during the prior week. Id. ¶ 21.[14]

3. CMCC Sends Fax to Hartt on December 13, 2010

On or about December 13, 2010, at Hartt's request, Stark underwent a medical examination at CMCC to ensure that he was fit to return for duty, and was cleared to return to work that same day. Id. ¶ 22. The same day, CMCC sent a fax to Rogers regarding Stark that Rogers received. Id. ¶ 23. The fax included a report provided to CMCC by Stark in connection with the fitness-for-duty examination that Hartt had Stark attend. Id. ¶ 25. It was Hartt's normal procedure to have the company completing a fit-for-duty evaluation provide a report to Hartt like the one Hartt received on December 13, 2010, regarding Stark. Id. ¶ 26.[15] Roberta Murphy, who was Hartt's safety manager at that time, testified that in her mind there was nothing unusual from a procedural standpoint about the fact that Rogers received a copy of the December 13, 2010, report from CMCC. Id. ¶ 28; Deposition of Roberta Murphy (" Murphy Dep." ) (ECF No. 77-7), attached to Index, at 5-6,

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29.[16] Rogers testified that she scheduled the fitness-for-duty examination for Stark because either he had informed her that he was ready to return to work or she had somehow been informed of that fact. Plaintiff's SMF ¶ 29; Defendant's Opposing SMF ¶ 29.[17]

Hartt referred Stark for the December 13, 2010, fitness-for-duty examination to make sure that he was cleared to perform the functions of his job. Id. ¶ 30. In the memorandum from CMCC employee Melissa Bilodeau included with the December 13, 2010, fax, she indicated, " As a result of John's present strength and range of motion, I do believe he can return to work safely." Id. ¶ 31. CMCC staff did not indicate anywhere in the December 13, 2010, fax that Stark required reasonable accommodations or restrictions in connection with performing his job duties for Hartt. Id. ¶ 32.[18]

The fax also contained references to Stark's October 7, 2010, pre-employment physical and the results of that physical. Id. ¶ 33. The fax stated, " It should be noted that [Stark] never mentioned any cervical injuries at his original pre-employment assessment." Id. ¶ 34. After receiving the fax, Rogers showed it to Murphy. Id. ¶ 35. One of the things that Rogers and Murphy discussed when reviewing the fax was that Stark had not provided information on his pre-employment assessment. Id. ¶ 36.

4. Hartt Personnel Discuss Stark with CMCC on December 15, 2010

Murphy decided that she needed to contact Bob Brainerd, owner of CMCC, because she wanted to know why subsequently disclosed information had not been brought forward during Stark's pre-employment assessment. Id. ¶ 37.[19] On December 14, 2010, Rogers emailed Anne Tolman, an assistant at CMCC, to request a call with Brainerd to discuss the December 13, 2010, fax. Id. ¶ 38.[20] Rogers, Murphy, and Brainerd spoke by telephone on December 15, 2010. Id. ¶ 39. During the call, they discussed Stark's alleged failure to disclose medical information during his October 7, 2010, pre-employment examination. Id. ¶ 40.[21] Brainerd stated

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that Stark had not disclosed any information about his " back condition" during his pre-employment assessment. Id. ¶ 41.[22]

During the call, Rogers wrote down, " Bob said sign form whether pre-existing or not and failed to disclose the info. We are concerned that you failed to disclose info and we would not have hired you for a job that could have aggravated your condition . . . could have been red." Id. ¶ 42. Rogers testified that she wrote down, " We are concerned that you failed to disclose info and we would not have hired you for a job that could have aggravated your condition" because it was a statement made during the call. Id. ¶ 43.[23]

Murphy's notes of the call state, " Discussed with Bob Brainerd, did fully disclose medical history which can be caused for termination. Protruding disc is symptomatic -- currently it is now non symptomatic. He can do the job function, but is symptomatic." Id. ¶ 46.[24] In his notes of the conversation, Brainerd wrote, " Telephone conversation with Roberta and Rose at Hartt Transportation. Discussion about if John had disclosed any pre-injury during pre-employment." Id. ¶ 49.[25]

The decision to terminate Stark was made the next day, December 16, 2010. Id. ¶ 50.[26]

When Rogers received the results of Stark's October 7, 2010, JPA, she noted that his JPA had been completed and placed the information in his driver qualification file. Defendant's Statement of Additional Material Facts (" Defendant's Additional SMF" ), commencing on page 14 of Defendant's Opposing SMF, ¶ 50; Rogers Dep. at 16-17. The only individuals who have access to the driver qualification file are employees in Hartt's Human Resources Department. Defendant's Additional SMF ¶ 50; Supplemental Affidavit of Rick Parisien (" Suppl. Parisien Aff." ) (ECF No. 98-1), attached thereto, ¶ 3.

B. Defendant's S/J Motions

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 Stark as the nonmovant, reveal the following.[27]

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1. Hartt

Hartt is a national, family owned and managed dry goods motor carrier service that has been in business since 1948. Statement of Material Facts in Support of Defendant's Motions for Partial Summary Judgment (" Defendant's SMF" ) (ECF No. 88) ¶ 1; Plaintiff's Opposing Statement of Material Facts (" Plaintiff's Opposing SMF" ) (ECF No. 96) ¶ 1. Its main office is located in Bangor, Maine, and it has terminals in Auburn, Maine, Sumter, South Carolina, and Fulton, Kentucky. Id. Hartt has been recognized for its superior safety record by the American Trucking Association's Safety Management Council, the Maine Motor Transport Association, and Reliance Insurance Company each year beginning in 1991. Id. ¶ 2.[28]

2. Stark

Stark worked as an owner-operator of his own tractor-trailer rig for four years. Plaintiff's Statement of Additional Material Facts (" Plaintiff's Additional SMF" ), commencing on page 63 of Plaintiff's Opposing SMF, ¶ 1; Defendant's Reply to Plaintiff's Opposing Statement of Material Facts and Plaintiff's Statement of Additional Facts (" Defendant's Reply SMF" ) (ECF No. 112) ¶ 1. The work that Stark performed as a driver for other companies prior to starting as an employee for Hartt and as an owner-operator required a commercial driver's license (" CDL" ) and a DOT card, and Stark had both at all times that that he was driving commercial vehicles. Id. ¶ 2.[29] During the period leading up to his employment with Hartt, Stark never had any issues with the mental or physical functions of his commercial driving jobs. Plaintiff's Additional SMF ¶ 3; Affidavit of John Stark (" Stark Aff." ) Exh. 6 (ECF No. 96-6) to Plaintiff's Opposing SMF, ¶ 3.[30]

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Prior to becoming a Hartt employee, Stark drove for Hartt for a brief period as an owner-operator. Defendant's SMF ¶ 23; Plaintiff's Opposing SMF ¶ 23. He voluntarily ceased driving for Hartt because he wanted to be home more often. Id. In October 2010, Hartt hired Stark as an OTR truck driver. Id. ¶ 24. Stark was dispatched out of Hartt's terminal in Auburn, Maine. Id. An OTR driver generally drives for two weeks at a time before returning to the terminal. Id.

3. Hartt's Policies, Procedures, and Driver Orientation

Hartt maintains a comprehensive employee handbook (" Handbook" ) that it refers to as its " Human Resource Directive: Company Drivers." Id. ¶ 3. Prior to beginning work, all Hartt drivers go through an intensive eight-hour driver orientation. Id. ¶ 4. On October 8, 2010, Stark attended Hartt's driver orientation. Id. During orientation, he received a copy of the Handbook. Id.[31] During orientation, Hartt reviews its policies with the drivers regarding compliance with the laws pertaining to disabilities and whistleblower protection. Defendant's SMF ¶ 5; Parisien Dep. at 7-9. Hartt also tells its drivers that they should report any and all work-related issues and that there will be no repercussions for doing so. Defendant's SMF ¶ 5; Parisien Dep. at 8.[32]

The Handbook contains Hartt's Employee Conduct and Disciplinary Action Policy, which includes the following relevant provisions:

Employee Conduct and Work Rules. The following are example of infractions of rules of conduct that may result in disciplinary action, up to and including termination of employment:

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o Dishonesty

o Falsification of timekeeping records or other Hartt Transportation Systems, Inc. documents

o Failure to comply with Hartt Transportation Systems, Inc. policies and rules

o Excessive absenteeism, tardiness or any absence without notice

The foregoing examples are not all inclusive, and there are many other grounds upon which disciplinary action, up to and including termination of employment, may be imposed.

Attendance and Punctuality. To maintain a safe and productive work environment, Hartt Transportation Systems, Inc. expects employees . . . to be reliable and to be punctual in reporting for scheduled work. You are expected to be at work, on time, each business day.


If you do not report to work for three consecutive days without prior notification, Hartt Transportation Systems, Inc. will consider this an abandonment of your position and that you have voluntarily resigned your employment.

Abandonment of Position. An employee . . . who is absent three consecutive workdays and has not contacted his/her supervisor is considered to have abandoned their position and employment will be terminated.

Overview of Prohibited Discrimination and Harassment: Any decision or action granting or denying employment . . . benefits as to an individual . . . is in violation of this policy when such decision or action is based, in whole or in part, upon the . . . disability, or any other legally protected characteristic of such individual . . . .

Defendant's SMF ¶ 6; Plaintiff's Opposing SMF ¶ 6.[33]

Stark understood that failure to comply with Hartt's policies and rules could be grounds for termination. Id. ¶ 8. He also understood that dishonesty could be grounds for termination, as could excessive absenteeism, tardiness, or any absence without notice from work. Id.[34]

The Handbook also contains Hartt's Vehicle and Equipment Use Policy:

Maintenance. Please notify a supervisor if any . . . vehicle appears to be damaged, defective, or in need of repair. Prompt reporting of damages, defects, and the need for repairs could prevent deterioration of equipment and possible injury to employees or others.

Id. ¶ 10.[35]

The Handbook also contains Hartt's Position Objective and Responsibilities Policy:

Safety and Maintenance. Safety and maintenance involves delivering freight safely, following regulations, and safely operating and maintaining your commercial motor vehicle.

o Check your equipment daily by doing a pre-trip inspection.

o Report any unsafe equipment or working conditions to your supervisor.

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o Report any needed repairs or special maintenance to the Maintenance Department.

Id. ¶ 12. On October 8, 2010, Stark acknowledged that he received, read, and understood Hartt's Position Objective and Responsibilities Policy. Id. ¶ 13. He understood that he was responsible for following all of Hartt's policies. Id. ¶ 14.

The Handbook also contains an entire Safety Manual providing detailed information to drivers about how to safely operate their trucks and how to properly complete Driver's Inspections Report (" DIR" ) forms, also called Vehicle Inspection Reports (" VIRs" ). Id. ¶ 15. The Safety Manual contains a " Pre-Trip and Post-Trip Vehicle Safety Inspections" policy, which states that all drivers must " check each safety aspect of the vehicle prior to taking it out on the road," should " mak[e] management and maintenance aware of [any] problem," and should also complete a post-trip inspection after each trip as well. Id. The manual also includes a checklist and detailed procedure for both inspections. Id. The Safety Manual also provides a sample DIR form and states that " [a]nytime you find damage or defects to the equipment, not only must it be written on the VIR but you must call the shop to get the defects repaired immediately." Id.

Stark acknowledged that he received driver safety orientation, which includes a review of the Safety Manual, on October 8, 2010. Id. ¶ 16. Stark was well aware of the process for completing pre-trip inspections and filling out DIR forms, as he had worked as a driver of commercial vehicles for several years prior to his employment at Hartt. Id. ¶ 17.

The Handbook also contains an entire Maintenance Manual providing detailed information to drivers about how to properly operate and maintain the trucks they are driving, the fact that drivers are not allowed to repair their own trucks, and procedures for obtaining repairs both on-site at Hartt's terminals and on the road. Id. ¶ 18. The Maintenance Manual also includes the " Vehicle Inspection Reports" policy, which provides that " [a]ll company drivers . . . are required by law to complete a [Vehicle Inspection Report] for each tractor and trailer combination" and, " [i]f you haul the same trailer for consecutive days you need to fill one out for each day." Id. ¶ 19. Stark acknowledged that he received driver orientation by the Maintenance Department on October 8, 2010. Id. ¶ 20.

Stark understood that he was required to " operate vehicles and equipment in a safe responsible manner and in compliance with federal and state laws and regulations governing vehicle use." Id. ¶ 21. Stark also understood that he was " expected to inspect vehicles or equipment before operating to ensure that the vehicle equipment will function in a safe manner." Id. He was aware of whom he needed to call at Hartt if he needed repairs while he was out on the road. Id. Finally, he understood that Hartt's policy is that " when a driver fails to perform proper maintenance of a vehicle it will result in appropriate disciplinary action." Id.

Stark also attended Northeast Technical Institute in Scarborough, Maine, where he studied to obtain his CDL. Id. ¶ 22. As part of that schooling, he studied Maine's Commercial Driver License Manual (" CDL Manual" ), published by Maine's Bureau of Motor Vehicles. Id. The CDL Manual contains all of the information regarding pre-trip and post-trip inspections that is contained in Hartt's Handbook. Id.

4. Stark Reports Problems With His Truck

As per the policies contained in the Maintenance Manual portion of the Handbook,

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Hartt drivers are required to conduct pre-trip and post-trip inspections of their trucks using specific procedures. Id. ¶ 29. Drivers who have concerns about the safety of their vehicles are required to report their concerns to Hartt. Id.[36] During each day of a trip, the driver also must complete a DIR form containing information on any maintenance issues that arise with the truck. Id. ¶ 30. Drivers turn these DIR forms into the Maintenance Department at Hartt at the end of each trip. Id. Stark was familiar with these requirements when he was hired by Hartt because he previously held jobs as a commercial truck driver, including a brief stint for Hartt as an owner-operator. Id. ¶ 31. He also understood that, while he was employed by Hartt, he was required to complete pre-trip safety inspections on his truck and report any unsafe equipment or working conditions to his supervisor. Id. He reported the mechanical defects with his truck because that was his job. Id.[37]

Stark drove Unit 9478 while he was employed by Hartt. Id. ¶ 32. If Stark noticed a defect during his pre-trip inspection, and it was serious enough, he would not take his truck out. Id. ¶ 35. Instead, he would go right to the Maintenance Department to have it fixed. Id. Stark admits that a driver with a CDL is not permitted to drive a vehicle that he or she knows has a mechanical defect unless he or she has been instructed to drive it somewhere for repairs. Id. ¶ 36. Stark never went out on the road with his vehicle when he knew it had a mechanical defect. Id. If he discovered issues on the road, he would immediately fix the defect or call Hartt's Maintenance Department to get it fixed. Id.[38]

Stark believes that Hartt did not repair two mechanical issues, involving an exhaust leak and a broken bunk heater, in a timely manner. Id. ¶ 38. Stark's expert, Jan Stetson Reynolds, opined that a broken bunk heater would not constitute a violation of either the FMCSR or Maine's Motor Vehicle Inspection Rules (" MMVIR" ). Id. ¶ 39. Stark reported the exhaust leak to the Maintenance Department at Hartt and told them, " I have an exhaust leak and you should look at it." Id. ΒΆ 40. He claims that he reported the exhaust ...

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