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Hammer v. Defender Security Co.

United States District Court, D. Maine

April 22, 2015

MARK HAMMER, Plaintiff,


JON D. LEVY, District Judge.

The plaintiff, Mark Hammer has filed a single count complaint (the "Amended Complaint") against his former employer, the defendant, Defender Security Company ("Defender"), alleging he was unlawfully discharged in retaliation for protected whistleblowing activity in violation of the Maine Whistleblower's Protection Act, 26 M.R.S.A. § 831 et seq. ("WPA"). Defender has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. It contends that (1) Hammer's failure to plead in his complaint that he seeks relief pursuant to the Maine Human Rights Act, 5 M.R.S.A. § 4551, et seq. ("MHRA") and not simply the WPA requires dismissal of the complaint, and (2) even if the complaint is construed as properly stating an MHRA claim, Hammer has failed to present sufficient admissible evidence to establish that his alleged protected activity caused his termination. I deny the motion.


The summary judgment record, viewed in the light most favorable to Hammer as the non-moving party, reveals the following facts.

A. Hammer's Employment with Defender

Hammer, a master electrician, was employed by Defender as a security adviser from April 2012 to October 20, 2012. ECF No. 36 at 2. As a security adviser, Hammer sold and installed alarm systems in Maine. The job requirements explicitly required Hammer to provide his own reliable vehicle to get to and from customers' homes. ECF No. 38-3 at 14. At times, however, Hammer travelled to and from job sites in the vehicles of other Defender employees, including his supervisor John Brady. ECF No. 40 at 1.

B. Alleged Protected Activity

Hammer contends that he became concerned about the practice of Brady and other Defender employees installing alarms in Maine without holding a Maine electrician's license or without the supervision of a Maine licensed electrician. ECF No. 39 at 4. Hammer asked Brady to provide proof that he (Hammer) would not be held responsible for installation jobs that he did not perform. Id. Hammer also communicated with John Sorrell, the Defender employee responsible for researching licensing requirements in the New England states, about this issue. Id. at 7. Hammer also complained to Brady about (1) Defender's failure to obtain permits from local towns and cities, (2) Defender's sales persons misrepresenting products to customers, and (3) the failure of Defender's technicians to pay Maine income taxes associated with income earned on installations in Maine. Id. at 8-9. For purposes of its summary judgment motion only, Defender does not dispute that Hammer engaged in whistleblowing activity protected by the MWPA. ECF No. 36 at 9.

C. Hammer's Termination

Defender maintains that Hammer's employment was terminated on October 20, 2012, because he failed to report for three jobs assigned to him and he failed to maintain a reliable vehicle. ECF No. 35 at 2. According to Defender, the first of the three assigned jobs was scheduled for October 11, 2012. ECF No. 37 at 6. Brady called Hammer twice that morning and the calls were unanswered. ECF No. 38-4 at 31-32. When Brady arrived at Hammer's apartment to pick him up, Hammer was not there. Id. Hammer denies these allegations in all material respects. ECF No. 40 at 3-4.

The second of the three jobs was scheduled for October 13, 2012. ECF No. 37 at 6. Defender asserts that Brady called Hammer that morning and Hammer stated he could not go to his job that day because he had been in a bar fight the night before and was not presentable to be in front of a customer. ECF No. 38-4 at 27. Hammer denies having made the statement and that he failed to appear for a scheduled job on October 13. ECF No. 40 at 4.

The third of the three jobs was scheduled on October 20, 2012 in Waterville. ECF No. 37 at 9. Defender asserts that Brady called Hammer twice that morning to inform him of the assignment, but Hammer did not answer his phone. Id. Hammer denies this assertion, claiming instead that he and Brady did speak by phone, but that after Brady refused to provide Hammer with the customer's phone number which Hammer intended to use to make sure that the customer would be home for the service call, Brady fired Hammer, stating, "I don't need you anymore. All the complaining, I don't need you or you're [sic] complaining anymore. You're fired." ECF No. 40 at 6.

Defender asserts that Brady recommended to Kris Tompkins, a regional director, that Hammer be terminated, and that Tompkins approved the termination and recommended the same to Defender's human resources department. ECF No. 37 at 9-10. Misty Watson, an employee relations manager with the department, approved the termination. Id. at 10. Defender asserts that neither Tompkins nor Watson were aware at that time of any of the whistleblowing complaints Hammer had made regarding Defender's business practices. Id. at 11. Hammer denies that Tompkins and Watson had not been previously informed of Hammer's complaints. ECF No. 40 at 7.

With regard to the unreliability of Hammer's vehicle, Defender contends that Hammer's vehicle began having problems and became unreliable in September 2012. ECF No. 37 at 5. Hammer told Brady he could not drive to installations that were far away from his house because he did not have the money needed to fix his vehicle. Id. From that point on, Brady drove Hammer to job locations two ...

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