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Buitrago v. Custom Hearing, LLC

Superior Court of Maine, Cumberland

July 6, 2016

ROY BUITRAGO, Plaintiff,
v.
CUSTOM HEARING, LLC d/b/a MIRACLE EAR, LLC and FRASIER ENTERPRISES, Defendants.

         

          ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          A.M. Horton Justice, Superior Court

         Defendants 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.

         Based on the entire record, Defendants' motion for summary judgment is denied.

         I. Background

         The following facts are established for purposes of the Defendants' motion for summary judgment.

         Defendant 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.[1] (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. ¶ 3.)

         Plaintiff 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.)

         However, 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.)

         In May 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.)

         On May 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.)

         On 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, 2016.

         II. Analysis

         A. Stand ...


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