Manske v. UPS Cartage Servs., Inc.

870 F.Supp.2d 185

Dennis MANSKE, Plaintiff,

v.UPS CARTAGE SERVICES, INC., Defendant.

No. 2:10–cv–00320–JAW.

United States District Court, D. Maine.

May 4, 2012.

Chad T. Hansen, Peter L. Thompson, Maine Employee Rights Group, Portland, ME, for Plaintiff.

Richard G. Moon, Verrill Dana LLP, Portland, ME, Barry J. Waters, Murtha Cullina LLP, New Haven, CT, James F. Radke, Murtha Cullina LLP, Boston, MA, for Defendant.

ORDER ON MOTION FOR SUMMARY JUDGMENT

JOHN A. WOODCOCK, JR., Chief Judge.

Concluding that the complaints of a trucking company employee to the company about the condition of its trucks may constitute protected conduct under the Surface Transportation Assistance Act, the Court denies the employer's motion for summary judgment.

I. STATEMENT OF FACTSA. Procedural Background

On July 30, 2010, Dennis Manske filed a complaint against UPS Cartage Services, Inc. (Cartage), alleging that Cartage violated the Surface Transportation Assistance Act (STAA), the Maine Human Rights Act (MHRA), and the Maine Whistleblowers' Protection Act (MWPA).¹Pl.'s Compl. and Demand for Jury Trial Inj. Relief Sought (Docket # 1). Cartage answered on October 21, 2010. Ans. and Aff. Defenses of Def. UPS Cartage Servs., Inc. (Docket # 8). On September 21, 2011, Cartage moved for summary judgment and filed a statement of material facts. Def.'s Mot. for Summ. J. (Docket # 46) ( Def.'s Mot.); Statement of Material Facts (Docket # 47) (DSMF). On October 12, 2011, Mr. Manske responded with an opposing memorandum and statement of material facts, which included responses to Cartage's statement of facts and a set of additional facts. Pl.'s Opp'n to Def.'s Mot. for Summ. J. (Docket # 54) ( Pl.'s Opp'n ); Pl.'s Opposing Statement of Material Facts; Pl.'s Additional Statement of Material Facts (Docket # 55) (PRDSMF; PSAMF). On November 7, 2011, Cartage replied with a memorandum and responsive statement of material facts. Def.'s Reply Mem. in Support of its Mot. for Summ. J. (Docket # 61) ( Def.'s Reply ); Def.'s Resp. to Pl.'s Additional Statement of Material Facts (Docket # 62) (DRPSAMF).²

B. Statement of Facts³

1. Cartage

Cartage is incorporated in the state of Delaware and has a principal place of businessin the state of Georgia. DSMF ¶ 1; PRDSMF ¶ 1. Cartage is a subsidiary of United Parcel Service, Inc. (UPS), which operates a package delivery system throughout the world. DSMF ¶ 2; PRDSMF ¶ 2. UPS Supply Chain Solutions, Inc. (Supply Chain Solutions) is a subsidiary company of UPS that specializes in the transportation of heavy air freight for customers around the world, which is often transported using large tractor trailer trucks and aircraft. DSMF ¶ 3; PRDSMF ¶ 3.

Cartage is a company that picks up and delivers heavy air freight on behalf of Supply Chain Solutions. DSMF ¶ 4; PRDSMF ¶ 4. UPS has acquired a number of businesses over the years related to the package delivery industry and acquired a company known as Menlo Forwarding (Menlo) in December 2004, which operated from a facility located at 470 Riverside Street, Portland, Maine. DSMF ¶ 5; PRDSMF ¶ 5. UPS integrated the Menlo business into the business of Cartage and continued to operate from the Portland, Maine facility until Cartage closed that facility on May 13, 2011. DSMF ¶ 6; PRDSMF ¶ 6.

Cartage's operation in Portland involved picking up heavy air freight from commercial customers of Supply Chain Solutions in local package trucks and transporting that freight in large tractor-trailer trucks from the Portland facility to distribution points in either Manchester, New Hampshire or Poughkeepsie, New York. DSMF ¶ 7; PRDSMF ¶ 7. Cartage also transported freight from the distribution points in Manchester and Poughkeepsie back to Portland for local delivery to customers of Supply Chain Solutions. DSMF ¶ 8; PRDSMF ¶ 8. In the summer of 2008, Cartage employed approximately thirteen commercial vehicle drivers at the Portland facility. DSMF ¶ 9; PRDSMF ¶ 9.

Unionized drivers at the Portland facility were members of the International Brotherhood of Teamsters Local 340 (Union) and operated pursuant to a collective bargaining agreement (CBA) with Cartage. DSMF ¶ 10; PRDSMF ¶ 10. As provided in Article 6 of the CBA, new drivers hired by Cartage worked under the CBA but were subject to a thirty-day probationary period before they could become members of the Union, at which point the rights of the CBA would attach. DSMF ¶ 11; PRDSMF ¶ 11. Article 6 of the CBA further permitted Cartage to extend the probationary period for an additional thirty days for any reason. DSMF ¶ 12; PRDSMF ¶ 12. Although the CBA provided that Cartage could not terminate Union members without “just cause,” the CBA did not restrict Cartage's ability to terminate probationary employees for any lawful reason. DSMF ¶¶ 13–14; PRDSMF ¶¶ 13–14.

Before June 2008, Cartage hired a third-party vendor to transport freight on the so-called line-haul route, which consisted of shipping freight by truck between Cartage's facility in Portland, Maine and the Boston–Manchester Regional Airport in Manchester, New Hampshire. DSMF ¶ 15; PRDSMF ¶ 15. Cartage began using its own drivers to drive the line-haul route in late June 2008. DSMF ¶ 16; PRDSMF ¶ 16.

2. Management at Cartage Portland

As of August 2008, Marie “Lynn” Easler was General Manager of Cartage's Portland center and three supervisors, Jaye Smith, Jamie Lovejoy, and Darren Chipman, reported to her as General Manager. PSAMF ¶ 1; DRPSAMF ¶ 1. Ms. Easler was responsible for overseeing the profitability, the service index scores, the Human Resources part of Cartage's employee base, and the entire profit and loss statement. Id. Ms. Easler did not routinely receive reports of safety problems with the trucks and did not directly address these problems; however, the supervisors reported to her on safety-related issues and, as General Manager, she had ultimate responsibility for safety.⁴ PSAMF ¶¶ 2–3; DRPSAMF ¶¶ 2–3. During a recorded conversation on August 16, 2008 between Mr. Manske and Ms. Easler, Ms. Easler indicated to him that she was not the person at Cartage who had the power to address reports regarding equipment and how it should be “specked.” PSAMF ¶ 5; DRPSAMF ¶ 5.

Darren Chipman, as Operations Supervisor, was responsible for ensuring that drivers were properly inspecting the trucks and, as a supervisor, he was responsible for equipment, maintenance on the equipment, driver write-ups, and getting equipment repaired.⁵ PSAMF ¶¶ 6–7; DRPSAMF ¶¶ 6–7.

3. Driver Duties and Cartage Policies

At all relevant times, in accordance with 49 C.F.R. § 396.11, Cartage required drivers, after each trip, to inspect the condition of the vehicles they drove, including specific vehicle parts and operating systems listed in that regulation. DSMF ¶ 19; PRDSMF ¶ 19. At all relevant times, in accordance with 49 C.F.R. § 396.11, Cartage further required drivers to document the results of their post-trip vehicle inspections as the “reporting driver” on a form known as Equipment Daily Inspection and Condition Reports (also known as DVIRs) listing “any defect or deficiency ... which would affect the safety or operation of the vehicle or result in a mechanical breakdown.” DSMF ¶ 20; PRDSMF ¶ 20. To permit them to carry out these duties, Cartage provided each driver with the necessary DVIR form to be used each day for each covered truck, which form contained a list of inspection items required by 49 C.F.R. § 396.11 and provided space for driver comments.⁶ DSMF ¶ 21; PRDSMF ¶ 21. At all relevant times, in accordance with 49 C.R.F. § 396.13, Cartage required that, before each trip, drivers inspect the vehicles they were going to drive, including specific vehicle parts and operating systems. DSMF ¶ 23; PRDSMF ¶ 23.

Generally, before each trip, drivers were required to review the DVIR completed by the prior driver and sign the report as the “reviewing driver” to certify that any deficiency noted in the DVIR by the reporting driver had been repaired or deferred, that the vehicle had not been taken out of service, and that the vehicle was safe to drive; however, Cartage never instructed Mr. Manske regarding the completion of DVIRs.⁷ DSMF ¶ 23; PRDSMF ¶ 23. It is a routine occurrence for vehicles used at Cartage, and in trucking operations generally, to require repairs for deficiencies and for drivers to report those conditions. DSMF ¶ 24; PRDSMF ¶ 24. At the same time, the other drivers who worked at the Cartage Portland branch did not always write up deficiencies with the trucks; during Mr. Manske's first probationary period, he was identifying issues with the trucks on his DVIRs that had not been identified by other drivers.⁸ DSMF ¶ 24; PRDSMF ¶ 24.

4. Dennis Manske and his Complaints

Cartage hired Dennis Manske as a driver/dockworker on or about June 30, 2008 with the expectation that he would drive the line-haul route, although his job would become subject to the bidding procedures of the CBA if and when Mr. Manske became a member of the Union. DSMF ¶ 17; PRDSMF ¶ 17. Part of Mr. Manske's job duties on a typical day included driving the line-haul route on the evening shift. DSMF ¶ 18; PRDSMF ¶ 18.

On various occasions during the month of July 2008, while employed at Cartage, Mr. Manske recorded in DVIRs that several of the trucks he was required to drive had deficiencies and submitted those DVIRs to his supervisors. DSMF ¶ 29; PRDSMF ¶ 29. Specifically, he reported a number of issues with a number of the pieces of equipment that he operated during the first thirty days of his employment with Cartage by completing and submitting pre- and post-trip DVIRs to Cartage management. PSAMF ¶ 8; DRPSAMF ¶ 8. Mr. Manske also had a number of oral discussions with his supervisors and with Ms. Easler in which he reported deficiencies. DSMF ¶ 30; PRDSMF ¶ 30; PSAMF ¶ 9; DRPSAMF ¶ 9. Mr. Manske submitted DVIRs to Cartage as either the reporting or reviewing driver before and after each trip that he made on...