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Alagic v. University of Maine System

Superior Court of Maine, Cumberland

November 17, 2017

SUAD ALAGIC et als., Plaintiffs

          Attorney for Plaintiffs: Donald Fontaine, Esq. Law Offices of Donald Fontaine.

          Attorney for Defendant: Glenn Israel, Esq. Bernstein Shur Sawyer & Nelson.


          A. M. Horton, Justice.

         Plaintiffs' Motion for Partial Summary Judgment and Defendant's Opposition and cross-motion for summary judgment came before the court for oral argument November 8, 2017.

         In this case, Plaintiffs seek remedies under the Maine wage payment statute, including an award of unpaid wages, an additional amount equal to twice the amount of such wages, and costs of suit, including reasonable attorney fees. See 26 M.R.S.A. §§ 626, 626-A. Defendant claims to have paid Plaintiffs everything they are entitled to within the time required by the statute.

         Based on the entire record, the court grants the Plaintiffs' Motion.


         The thirteen Plaintiffs[1] were formerly employed as tenured professors by the Defendant University of Maine System. Their salaries were fixed according to the terms of various contracts, which called for them to work during the nine months of the academic year (but not during the three-month summer recess). (Supp'g S.M.F. ¶¶ 4a, 38.) Pursuant to University policy, the earnings plaintiffs accrued during the course of their nine-month academic appointments would be disbursed over a twelvemonth pay period, resulting in each plaintiff receiving a monthly check for 1l/l2th of their nine-month salary. (Id. ¶ 36).

         At all relevant times, the Plaintiffs were members of a collective bargaining unit represented by Associated Faculties of the University of Maine (AFUM). (Id. ¶¶ 3, 39.) At all relevant times, a series of collective bargaining agreements (CBA) between AFUM and the Defendant have been in effect, governing the terms and conditions of Plaintiffs' employment. (Id.) The applicable CBA permitted the Defendant to "retrench", i.e. terminate, the Plaintiffs as employees on appropriate notice, and called for "total compensation" equal to 18 months' salary to be paid following retrenchment. (See CBA art. 17).

         Plaintiffs performed their professional responsibility as professors during the fall semester of the 2014-15 academic year. In a retrenchment letter dated October 28, 2014, Defendant notified each of the Plaintiffs that their positions would be discontinued effective December 31, 2014 and that they would have no professional obligations to Defendant after that date. (Supp'g S.M.F. ¶ 1.) The Plaintiffs were paid l/l2 of their salary each month during September through December 2014. Each of the Plaintiffs began receiving the 18 months of retrenchment pay in January 2014; this pay continued through June 2016. (Id. ¶ 4.)

         On September 28, 2015, the attorney for AFUM sent an e-mail to Defendant's attorney, asserting that the Plaintiffs were owed an additional two months' pay for the fall of 2014, because they had earned half of their contracted annual pay by working through the first of the two semesters of the 2014-15 academic year, but had only received one-third of their annual pay, for the four months of the fall semester. (Supp'g S.M.F. ¶¶ 11, 36.)

         In response to the request, Defendant on September 29, 2015 declined to pay Plaintiffs any further amounts for work performed between September and December 2014. (Id. ¶ 23.) Defendant's position was essentially that, because the CBA referred to the 18 months of retrenchment pay as "total compensation, " Plaintiffs were not entitled to any payment after their last day of work, other than retrenchment pay.

         On October 18, 2015, AFUM filed a written grievance on behalf of the Plaintiffs for the additional pay they claimed to be owed for the fall 2014 semester. (Id. ¶ 12.) A grievance hearing was held November 15 and December 8, 2016. (Id. ¶¶ 16-17.) Before and at the grievance hearing, Plaintiffs made formal demand for the additional pay they claimed to be owed for the fall 2014 semester. (Id. ¶¶ 14-17.)

         In an initial arbitration award dated January 12, 2017, the arbitrator noted that the arguments presented by Plaintiffs and Defendant were "plausible, and the intersection of wages for work performed before the retrenchment period commenced, and the [retrenchment] terms of Article 17 has no precedent." Arbitration Award at 12 (Jan. 12, 2017). The initial award determined that the AFUM grievance was untimely, but noted that the Plaintiffs had shown they were due pay for the fall 2014 semester beyond the four months (or 4/12) of annual pay they had received, albeit not all that they were demanding. Id. at 15, 16-18. The arbitrator found that they were entitled to be paid 4/9 of their annual pay, not the 6/12 of annual pay that the Plaintiffs had sought. Id. at 11.

         On January 18, 2017, the Plaintiffs filed their Complaint in this case.

         On January 20, 2017, Plaintiffs' attorney requested, via e-mail and letter to Defendant's attorney, that Defendant determine the amount of wages that remain unpaid to each of the grievants. [Id. ¶ 19.) The request included a demand for payment of the wages due to each grievant plus an amount equal to twice the wages for liquidated damages. (Id.)

         On February 1, 2017, the arbitrator amended the award by changing her finding about timeliness-the amended award determined that the grievance was timely and ordered Defendant to make Plaintiffs whole for the difference between the 4/12 of their annual salary that they were paid for the fall semester in 2014 and the 4/9 to which they were entitled. (Id. at ¶ 20.) See Amended Award at 1, 19-20 (Feb. 1, 2017).

         On February 3, 2017, following receipt of the arbitrator's amended award, Defendant made payment to each of the Plaintiffs for what the arbitrator had awarded. (Def's A.S.M.F. ¶ 8.) The amount of the payment was based on a formula that Defendant has used in the past, and continues to use, to provide compensation for "accrued salary" to other academic-year employees who cease to be employed at the end of a calendar year rather than at the end of an academic year. (Id. ¶ 9.) The total additional amount paid to all of the Plaintiffs was approximately $148, 000. (Id. ¶ 10.)

         Plaintiffs were not satisfied with the payment and asked the arbitrator to order Defendant to pay them the difference between what they were paid on February 3, 2017 and the two additional months of salary they initially demanded. (Id. ¶ 11.) This request was denied by the arbitrator in a decision dated June 29, 2017. (Id. ¶ 12.)

         Mark Schmelz, director of labor relations for Defendant, asserts that in prior cases where an arbitrator has interpreted the CBA in a way that results in additional compensation being owed to a member of the AFUM, Defendant has made payment shortly after receipt of the decision. (Id. ¶ 6.) No claim for the statutory remedies of double damages and attorney fees has ever been made by the AFUM or any of its members based on an argument that Defendant is obligated to pay disputed wages prior to receipt of an arbitrator's decision interpreting the language of the CBA. (Id. ¶7.)

         Standard of Review

         "The function of a summary judgment is to permit a court, prior to trial, to determine whether there exists a triable issue of fact or whether the question [s[] before the court [are[] solely ... of law." Bouchard v. American Orthodontics, 661 A.2d 1143, 44 (Me. 1995). "[Summary judgment is appropriate when the portions of the record referenced in the statements of material fact disclose no genuine issues of material fact and reveal that one party is entitled to judgment as a matter of law." Currie v. Indus. Sec, Inc., 2007 ME 12, ¶ 11, 915 A.2d 400. "A material fact is one that can affect the outcome of the case, and a genuine issue exists when there is sufficient evidence for a fact finder to choose between competing versions of the fact." Lougee Conservancy v. City-Mortgage, Inc., 2012 ME 103, ¶ 11, 48 A.3d 774 (quotation omitted).


         1. The Issue Before the Court

         Clarification of what issue is before the court is appropriate before any discussion of the merits.

         Plaintiffs have filed a partial motion for summary judgment that asks for a determination that Plaintiffs can seek an award of the double damages and attorney fees and costs that are allowed for violation of the Maine wage payment law. See 26 M.R.S. §§ 626, 626-A.[2]

         Accordingly, what the Plaintiffs ask is for the court to decide that they are entitled to the statutory remedies of double damages and attorney fees, and to establish the amount of their award.

         Defendant's responsive cross-motion seeks summary judgment in full on the Plaintiffs' claims. In other words, Defendant asks the court to determine that the Plaintiffs have been paid everything they are owed, and that they are not entitled to the statutory remedies.

         The sole issue before the court, therefore, is whether the Plaintiffs are entitled to the statutory remedies in sections ...

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