United States District Court, D. Maine
ORDER ON MOTION TO DISMISS
LEVY, U.S. DISTRICT JUDGE
Plaintiff, Donato Apon, is a former employee of Defendant ABF
Freight Systems, Inc. (“ABF”). Apon claims that
ABF terminated his employment because he refused to sign a
form acknowledging certain legal requirements related to
ABF's trucking business. In his Amended Complaint, Apon
alleges violations of the Maine Whistleblowers'
Protection Act, 26 M.R.S.A. § 831, et seq.
(2018) (“MWPA”), and the Maine Human Rights Act,
5 M.R.S.A. § 4551, et seq. (2018)
(“MHRA”). ABF has moved to dismiss Apon's
Amended Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief may
be granted (ECF No. 7). For the reasons that follow,
ABF's motion is GRANTED in part and
DENIED in part.
worked for ABF from 1986 until his termination on February
19, 2016. On February 16, 2016, Apon's immediate
supervisor, Derek Bell, instructed Apon to sign a document
entitled “Leadership Responsibility Hours of Service
and Meal Break Compliance Form” (the “Leadership
Form”). The Leadership Form acknowledges the
signatory's responsibility for enforcing certain hours of
service and meal break requirements contained in the Federal
Motor Carrier Safety Act (“FMCSA”). 49 U.S.C.A.
§ 31131, et seq. (2018). The Leadership Form
states that “[c]ompliance must be achieved through
oversight, enforcement, and leadership of the Branch
Managers and Linehaul Managers.” ECF No.
6 at 1 (emphasis added). The Leadership Form refers to Branch
Managers and Linehaul Managers throughout, but makes no
mention of Apon's job title: Operations Supervisor.
Id. at 1-2.
Amended Complaint asserts that Apon refused to sign the
Leadership Form because he believed that as an Operations
Supervisor, and not a Branch Manager or Linehaul Manager, his
signature on the form would violate state or federal
transportation laws, rules, or regulations. Apon asked Bell
for clarification about the Leadership Form, and asked to
discuss the issue with Bell's supervisor. Bell offered no
clarification and refused to contact his supervisor. Bell
again asked Apon to sign the form, and when Apon refused,
Bell sent him home.
went on medical leave on February 16 and returned to work on
February 29, at which time he was informed that his
employment had been terminated effective February 19, 2016.
ABF's termination letter to Apon states that he was
terminated for his failure to sign the Leadership Form. ECF
No. 5 at ¶ 24; ECF No. 6 at 3.
MOTION TO DISMISS STANDARD
moves to dismiss the Amended Complaint for failure to state a
claim upon which relief may be granted. See Fed. R.
Civ. P. 12(b)(6). To survive a motion to dismiss, the
complaint “must contain sufficient factual matter to
state a claim to relief that is plausible on its face.”
Rodríguez-Reyes v. Molina-Rodríguez,
711 F.3d 49, 53 (1st Cir. 2013) (internal quotation marks
omitted). In evaluating a motion to dismiss, the Court will
accept all well-pleaded facts as true and draw all reasonable
inferences in the Plaintiff's favor. Id. at
52-53. Determining the plausibility of a claim is a
context-specific task that requires the court “to draw
on its judicial experience and common sense.”
Id. at 53 (quoting Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009)).
establish a prima facie claim for retaliation under
the MWPA, an employee must demonstrate that “(1) she
engaged in activity protected by the statute; (2) she
suffered an adverse employment action; and (3) there was a
causal link between the protected activity and the adverse
employment action.” Harrison v. Granite Bay Care,
Inc., 811 F.3d 36, 46 (1st Cir. 2016) (citing
Costain v. Sunbury Primary Care, P.A., 954 A.2d
1051, 1053 (Me. 2008)). “[T]he employee's burden of
proving a prima facie case of retaliation is relatively
light, and requires only a small showing that is not onerous
and is easily made.” Brady v. Cumberland Cty.,
126 A.3d 1145, 1151 (Me. 2015) (internal quotation marks and
citations omitted). “[T]he Court's role in a motion
to dismiss is to determine only whether [the plaintiff] has
surmounted the much lower bar of plausibly narrating a claim
for relief.” Levitt v. Sonardyne, Inc., 918
F.Supp.2d 74, 85 (D. Me. 2013) (internal quotation marks,
alterations, and citation omitted). This is a relatively
light burden. Brady, 126 A.3d at 1151.
Amended Complaint contains a single count, which asserts two
grounds of unlawful retaliation under the MWPA. First, that
terminating Apon's employment in response to his refusal
to sign the Leadership Form - when he believed that his
signing the form was contrary to state or federal
transportation laws - violated § 833(1)(D)
(“Section D”) of the MWPA. Second, the Amended
Complaint asserts that ABF terminated Apon in violation of
§ 833(1)(A) (“Section A”) of the MWPA based
on his report to Bell, his supervisor, of what he reasonably
believed was a violation of transportation laws. ABF argues
that the Amended Complaint fails to plead (1) a refusal to
act that was protected by Section D because Apon has not
identified what law he was directed to violate; and (2) a
“report” protected by Section A because
Apon's verbal refusal to sign the Leadership Form does
not constitute a “report” protected by the MWPA.
For the reasons that follow, I conclude that Apon has stated
a plausible report claim under Section A, but not a plausible
refusal to act claim under Section D of the MWPA.
Amended Complaint also alleges a third basis for relief: that
ABF's retaliation violated § 4633 of the MHRA
(“Prohibition against Retaliation and Coercion”).
5 M.R.S.A. § 4633. In response to ABF's motion to
dismiss, however, Apon concedes that there is no additional
MHRA whistleblower liability authorized by § 4633 beyond
what is authorized specifically by the MWPA, and he does not
oppose ABF's Motion to Dismiss as to that asserted basis
for relief. See Costain, 954 A.2d at 1053 (the MHRA
provides the right of action for MWPA whistleblowers who have
suffered retaliatory discharge or other adverse employment
actions in violation of the MWPA). Accordingly, I grant the
motion to dismiss as to the portion of Count I in the Amended
Complaint that requests relief under § 4633 of the MHRA.
Good Faith Refusal to Comply (Section D)
challenges whether the Amended Complaint sufficiently alleges
that Apon engaged in activity protected by Section D. Section
D provides, in relevant part, that an employer may not
discharge an employee where “[t]he employee acting in
good faith has refused to carry out a directive to engage in
activity that would be a violation of a law or rule adopted
under the laws of this State, a political subdivision of this
State or the United States . . . .” 26 M.R.S.A. §
833(1)(D). ABF contends that because the Amended Complaint
does not identify a particular law or rule ...