ORDER ON DEFENDANTS' MOTION FOR SUMMARY
Horton Justice, Superior Court
Custom Hearing, LLC (d/b/a Miracle Ear, LLC) and Frasier
Enterprises have moved for summary judgment on Plaintiff Roy
Buitrago's claim for unlawful retaliation pursuant to the
Maine Human Rights Act ("MHRA") and the Maine
Whistleblower's Protection Act ("WPA"). The
court elects to decide the motion without oral argument.
on the entire record, Defendants' motion for summary
judgment is denied.
following facts are established for purposes of the
Defendants' motion for summary judgment.
Custom Hearing, LLC (d/b/a Miracle Ear, LLC) is in the
business of dispensing, fitting, and selling hearing aids
from a number of locations in Maine, including a store in
South Portland. (Defs. Supp. S.M.F. ¶ 1; Pl. Opp.
S.M.F. ¶ 1.) Carl Case is an employee of Custom Hearing,
LLC who manages the South Portland store remotely from
Johnstown, New York. (Pl. Add'l S.M.F. ¶¶ 5-6;
Defs. Reply S.M.F. ¶¶ 5-6.) Shawn MacDonald is a
licensed hearing aid dispenser who at relevant times oversaw
the daily operations of the South Portland store. (Defs.
Supp. S.M.F. ¶ 2; Pl. Opp. S.M.F. ¶ 2.) Nancy
MacDonald, Mr. Mac Donald's wife, was the office
assistant for the South Portland store. [Id. ¶
Roy Buitrago began working at the South Portland store as a
"trainee" in January 2014. (Pl. Add'l S.M.F.
¶ 9; Defs. Reply S.M.F. ¶ 9.) Mr. Case made the
decision to hire Plaintiff. [Id. ¶ 8.) The
Maine Board of Speech Audiology and Hearing
("BSAH") oversees the licensing of hearing aid
dealers and fitters in Maine, including Custom Hearing, LLC.
[Id. ¶ 12.) Under BSAH regulations, trainees
are allowed to test, fit, and assist with hearing aids only
under the supervision of another licensed individual.
[Id. ¶¶ 22-23, 27.) Plaintiff was training
under the license of Mr. MacDonald. [Id. ¶ 29.)
Plaintiff could not sell or service any hearing aids without
Mr. MacDonald present. [Id. ¶¶ 20, 24.)
Mr. MacDonald was to provide Plaintiff with training and
maintain a training log as part of Plaintiff s application
for licensure as a hearing aid dealer and fitter.
[Id. ¶ 16.)
Mr. MacDonald only worked at the South Portland store three
days per week. [Id. ¶ 32.) Mr. MacDonald would
work at other locations in Maine on other weekdays.
[Id. ¶ 33.) Plaintiff alleges that Mr.
MacDonald never oversaw Plaintiffs treatment of customers and
that he would service customers' hearing aids without Mr.
MacDonald present. (Pl. Add'l S.M.F. ¶¶ 35-36.)
2014, Plaintiff complained to Ms. MacDonald regarding his
lack of training and Mr. MacDonald's failure to supervise
his training. (Pl. Add'l S.M.F. ¶¶ 46-47; Defs.
Reply S.M.F. ¶¶ 46-47.) About a week later,
Plaintiff spoke to Mr. MacDonald. [Id. ¶ 62.)
Plaintiff told Mr. MacDonald that he needed supervision, that
he would no longer dispense hearing aids without Mr.
MacDonald present, and that he should not be selling hearing
instruments or making adjustments with Mr. MacDonald present.
(Id. ¶¶ 64-65.)
29, 2014, Mr. MacDonald met with Plaintiff and informed him
that his employment had been terminated. (Id. ¶
73.) Defendants assert that Mr. Case made the decision to
terminate Plaintiff because he was not making sales at
expected levels. (Defs. Supp. S.M.F. ¶¶ 32-33.)
March 27, 2015, Plaintiff filed a one-count complaint for
unlawful retaliation pursuant to the MHRA and the WPA.
Plaintiff subsequently filed an amended complaint on May 21,
2015, and a second amended complaint on November 19, 2015.
Defendants moved for summary judgment on February 29, 2016.
After an enlargement of time, Plaintiff filed its opposition
on April 8, 2016. Defendants filed their reply on April 22,