Attorney for Plaintiffs: Donald Fontaine, Esq. Law Offices of
Attorney for Defendant: Glenn Israel, Esq. Bernstein Shur
Sawyer & Nelson.
ORDER ON PENDING MOTIONS
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.
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.
on the entire record, the court grants the Plaintiffs'
thirteen Plaintiffs 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).
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.
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.)
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.)
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.
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.)
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.
January 18, 2017, the Plaintiffs filed their Complaint in
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.
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).
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.)
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.
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.
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).
The Issue Before the Court
of what issue is before the court is appropriate before any
discussion of the merits.
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.
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.
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.
sole issue before the court, therefore, is whether the
Plaintiffs are entitled to the statutory remedies in sections