McGowen v. Four Directions Dev. Corp.

Decision Date10 March 2014
Docket Number1:12-cv-00109-JAW
CourtU.S. District Court — District of Maine

Barbara McGowen alleges that her former employer, Four Directions Development Corporation (FDDC), and her former supervisor, Susan Hammond, committed one federal and a variety of state civil wrongs related to Ms. McGowen's employment and termination from FDDC. She alleges violations of the Federal Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (FLSA); the state of Maine's wage and hour law, ME. REV. STAT. tit. 26, §§ 664 et seq.; the Maine Whistleblower Protection Act, ME. REV. STAT. tit. 26, §§ 831 et seq. (MWPA); and the Maine common law of defamation and tortious interference with a business relationship. Before the Court is the Defendants' motion for summary judgment as to Counts I, III, and V of the Amended Complaint and for partial summary judgment as to Counts II and IV. The summary judgment record shows no genuine dispute of material fact as to Count I, the FLSA claim; Ms. McGowen met both the "salary basis test" and the"duties test" for classification as an employee exempt from the FLSA's overtime pay requirements. The Court grants summary judgment as to Count I and dismisses the remaining state law claims without prejudice to allow Ms. McGowen to proceed, if she wishes, with the state claims in state court.


Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "'A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party.'" Rodriguez-Rivera v. Federico Trilla Reg'l Hosp., 532 F.3d 28, 30 (1st Cir. 2008) (quoting Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008)). "A fact is material if it has the potential of determining the outcome of the litigation." Maymi v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2005).

The party moving for summary judgment must demonstrate an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether this burden is met, the Court must view the record in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences in its favor. Santoni v. Potter, 369 F.3d 594, 598 (1st Cir. 2004). Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must "'produce specific facts, in suitable evidentiary form, to . . . establish the presence of a trialworthy issue.'" Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (quotingMorris v. Gov't Dev. Bank of P.R., 27 F.3d 746, 748 (1st Cir. 1994)). "'[A]s to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party.'" In re Spiegel, 260 F.3d 27, 31 (1st Cir. 2001) (quoting Century 21 Balfour Real Estate v. Menna, 16 F.3d 7, 9 (1st Cir. 1994)).

A. Procedural Posture

Ms. McGowen filed her first Complaint on May 2, 2012, Compl. (ECF No. 1), and an Amended Complaint on June 6, 2013. Am. Compl. (ECF No. 42). Count I alleges a violation of the FLSA, id. at 11; Count II alleges a violation of Maine's minimum wage and hour law, id. at 12; Count III a violation of the MWPA, id. at 12; Count IV common law defamation, id. at 13; and Count V "tortious interference" with a contract or business relationship. Id. at 14. The Defendants answered on July 19, 2013. Answer. (ECF No. 47).

On August 9, 2013, the Defendants moved for summary judgment on Counts I, III, and V, and partial summary judgment on Counts II and IV. Mot. for Summ. J. (ECF No. 51) (Def.'s Mot.). As to Count II, the Defendants ask for summary judgment for the period from June, 2008 to April, 2011. Def.'s Mot. 16. As to Count IV, they ask for summary judgment regarding seven specific, allegedly defamatory statements. Id. at 20. The Defendants accompanied their motion with a statement of material facts, Def.'s Rule 56(g) Statement of Material Facts (ECF No. 52) (DSMF), and a number of exhibits.

Ms. McGowen responded in opposition to the motion on September 13, 2013. Pl.'s Opp'n to the Def.'s Mot. for Summ. J. (ECF No. 57) (Pl.'s Opp'n). With the opposition came a reply to the Defendants' statement of material facts and a statement of additional material facts. Pl.'s Opposing and Additional Statement of Material Facts in Opp'n to Summ. J. (ECF No. 58) (PRDSMF) (PSAMF). The Defendants replied to Ms. McGowen's opposition on September 27, 2013, Def.'s Reply Mem. of Law (ECF No. 61) (Def.'s Reply). They also filed an opposition to Ms. McGowen's requests to strike, under District of Maine Local rule 56(e), and a reply to Ms. McGowen's Statement of Additional Material Facts. Def.'s Resp. to Pl.'s Objections and Reply Statement of Material Facts (ECF No. 62) (Rule 56(e) Resp.) (DRPSAMF).

On September 26, 2013, Ms. McGowen moved to supplement the record. Pl.'s Mot. for Leave to File Supplemental R. in Opp'n to Summ. J. (ECF No. 60). On October 17, 2013, FDDC filed a response to the motion for leave to file supplemental record. Resp. of Defs. To Mot. of Pl. for Leave to File Supplemental R. (ECF No. 65). On November 8, 2013, the Court also granted Ms. McGowen leave to supplement the summary judgment record, Order Granting Mot. for Leave to File Supplemental Record (ECF No. 66), and Ms. McGowen submitted supplemental materials on November 12, 2013. Pl.'s Supplemental R. in Opp'n to Def.'s Mot. for Summ. J. (ECF No. 67) (Supplemental R.). However, on December 14, 2013, FDDC filed a supplemental citation, consisting of a citation to Winslow v. Aroostook County, 736 F.3d 23 (1st Cir. 2013), a case the First Circuit decided on November 15, 2013.Supplemental Citation by Defs. on Mot. for Summ. J. (ECF No. 69). On January 6, 2014, Ms. McGowen filed a response to FDDC's supplemental citation filing.1 Pl.'s Resp. in Opp'n to Defs.'Supplemental Citation on Summ. J. (ECF No. 70).

B. Summary Judgment Facts2
1. The Defendants' Facts
a. Background Facts

Four Directions Development Corporation ("FDDC") is a Maine nonprofit corporation with an office in Orono, Maine. DSMF ¶ 1; PRDSMF ¶ 1.3 FDDC was formed under sponsorship by the Penobscot Indian Nation, with support from other Maine tribes, the Passamaquoddy Tribe, the Houlton Band of Maliseet Indians, and the Aroostook Band of Micmacs, to provide affordable housing and economic development services to the tribes and to tribal members. DSMF ¶ 2; PRDSMF ¶ 2. FDDC is a community development corporation and a Community Development Financial Institution. DSMF ¶ 3; PRDSMF ¶ 3. In the period of 2006 to 2011, it had a housing program, a business program, and other activities. DSMF ¶ 3;PRDSMF ¶ 3. It engaged in lending for housing and business development purposes to tribal members and member-owned businesses. DSMF ¶ 3; PRDSMF ¶ 3.

Susan Hammond, a member of the Penobscot Indian Nation, has served as Executive Director of FDDC from 2001 to present. DSMF ¶ 4; PRDSMF ¶ 4. FDDC receives funding from a variety of grant sources, public and private. DSMF ¶ 5; PRDSMF ¶ 5. FDDC had twelve employees in fiscal year 2010 and thirteen in fiscal year 2011. DSMF ¶ 6; PRDSMF ¶ 6.4

Rachel Grivois, C.P.A., is an outside accountant who serves as Chief Financial Officer for FDDC. DSMF ¶ 7; PRDSMF ¶ 7. FDDC uses several outside grant consultants, including Helen Scalia, James Hanna, and Chris Shrum. DSMF ¶ 8; PRDSMF ¶ 8. FDDC uses an outside personnel consultant, Peter Chavonelle, for personnel and human resource matters. DSMF ¶ 9; PRDSMF ¶ 9.5

b. Ms. McGowen's Status as an Employee

FDDC employed Ms. McGowen from November 2006 to April 11, 2011. DSMF ¶ 10; DRPSMF ¶ 10. From November 2006 until at least June 2008, Ms. McGowen held a position as an Administrative Assistant. DSMF ¶ 11; PRDSMF ¶ 11.6 From April 2007—when the former Business Program Coordinator, Patricia Kontur, left FDDC—to June 2008, Ms. McGowen became increasingly involved in the Business Program. DSMF ¶ 12; PRDSMF ¶ 12. Among the duties Ms. McGowen assumed were working with outside consultants to complete a commercial loan. DSMF ¶ 13; PRDSMF ¶ 13. This included meeting with the client, collecting the information needed to compile a loan file, and reviewing the documents prepared for the loan committee. DSMF ¶ 13; PRDSMF ¶13.7 Ms.McGowen also worked with tribal communities to organize necessary training in order to qualify for grants. DSMF ¶ 14; PRDSMF ¶ 14.8

In June 2008 Ms. Hammond promoted Ms. McGowen to Business Program Coordinator. DSMF ¶ 15; PRDSMF ¶ 15.9 Although Ms. McGowen performed some unlisted tasks as assigned, the FDDC job description for the Business Program Coordinator is an accurate summary of the job duties Ms. McGowen regularly performed while she held that position. DSMF ¶ 16; PRDSMF ¶ 16.10 Those dutiesconsisted primarily of office and non-manual work. DSMF ¶ 17; PRDSMF ¶ 17. Ms. McGowen exercised a fair amount of judgment and discretion in her position of Business Program Coordinator. DSMF ¶ 18; PRDSMF ¶ 18.11 Ms. McGowen was responsible for significant matters in this position, such as preparing loans and preparing information on loans for FDDC's Loan Committee. DSMF ¶ 19; PRDSMF ¶ 19.12 Ms. McGowen's duties also included working one-on-one with FDDC clients and assisting them in utilizing the various services provided by FDDC. DSMF ¶ 20; PRDSMF ¶ 20.13

Ms. McGowen was paid weekly for forty hours pay times a stated hourly rate from June 2008 through the end of her employment. DSMF ¶ 22; PRDSMF ¶ 22.14 Ms. McGowen is not aware of any...

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