Shaffer v. IEP Technologies, LLC

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

MARK SHAFFER, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO.

) 18-10160-DPW

IEP TECHNOLOGIES, LLC, RANDY, )

DAVIS in his capacity as )

President, & BURKE DESAUTELS, )

in his capacity as Manager, )

)

Defendants. )

MEMORANDUM AND ORDER

August 16, 2021

The Fair Labor Standards Act of 1938 (the “FLSA”), 29

U.S.C. § 215(a)(3), prohibits certain employers from retaliating

against employees for conduct protected under the FLSA because

it advances the statute’s regulatory enforcement purposes. The

First Circuit has not to date drawn bright lines definitively

identifying the outer limits of temporal proximity — between an

employee’s protected conduct and an employer’s adverse

employment action — sufficient to support an inference of

retaliation.

The record submitted in connection with this renewed motion

for summary judgment can fairly be read to present the question

whether a time span of slightly more than three months between

the filing of an FLSA litigation complaint by an employee and

that employee’s termination is sufficiently proximate to provide

the foundation for a retaliation case. In light of

corroborating causal evidence found in the summary judgment

record before me, I conclude that a gap of just over three

months is sufficiently proximate to justify permitting the case

proceed to resolution by a factfinder.

I. BACKGROUND

The Plaintiff employee brought this action against his

former employer and two of the employer’s senior supervisors,

alleging in Count I, as a collective action,1 violations of the

1 The FLSA expressly authorizes an employee to sue “for and in

behalf of himself . . . and other employees similarly situated,”

29 U.S.C. § 216(b), which allows employee-plaintiffs “the

advantage of lower individual costs to vindicate rights by the

pooling of resources,” Hoffman-La Roche Inc. v. Sperling, 493

U.S. 165, 170 (1989). Conditional certification of the

plaintiffs as a collective action does not, by contrast to a

putative class certified under Federal Rule of Civil Procedure

23, produce a class with an independent legal status. See

Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75 (2013).

Rather, “[t]he sole consequence of conditional certification is

the sending of court-approved written notice to employees, who

in turn become parties to a collective action only by filing

written consent with the court.” Id. (internal citation

omitted).

The following plaintiffs have consented to suit: Colin

Andrews [Dkt. No. 52], Tom Aguilar [Dkt. No. 49], Tanner Weimer

[Dkt. No. 29], Alexander Marchena [Dkt. No. 28], David

Bevilacqua [Dkt. No. 27], Michael Bingaman [Dkt. No. 26], Taylor

Ford [Dkt. No. 25], Sam Toller [Dkt. No. 24], Robert C. Mitchell

[Dkt. No. 23], Ricky Rogers [Dkt. No. 22], Matthew Hampson [Dkt.

No. 21], Donald Norton [Dkt. No. 20], Julian Pierce [Dkt. No.

19], Joseph Hrezo Jr. [Dkt. No. 18], John Gaines [Dkt. No. 17],

Ulises Arteaga [Dkt. No. 16], Steven Reece [Dkt. No. 15],

Michael Piasecki [Dkt. No. 14], Matthew Camper [Dkt. No. 13],

Lawrence Tolo [Dkt. No. 12], Joey Gaines [Dkt. No. 11], Erik

Ascher [Dkt. No. 10], Edward Schultz [Dkt. No. 9], David Hornik

wage and labor provisions of the FLSA, 29 U.S.C. § 207, and

alleging in Count II, individually, employment retaliation, id.

§ 215(a)(3). Remaining before me2 is the employer’s renewed

Motion [Dkt. No. 73] for Summary Judgment with respect to Count

II, the employee’s individual retaliation claim. I consider the

summary judgment record compiled by the parties in the light

most favorable to the employee, as the non-moving party. See

Ramírez-Lluveras v. Rivera-Merced, 759 F.3d 10, 13 (1st Cir.

2014).

A. Parties

Defendant IEP designs, manufactures, and services explosion

suppression systems. Defendant Randy Davis is the President of

IEP. Defendant Burke Desautels is IEP’s Vice-President of

After-Market Engineering.

Plaintiff Mark Shaffer worked for IEP as a Field Service

Engineer from October 2014 to May 2018.

B. Factual Background

1. Field Service Engineer Operations at IEP

IEP employed Field Service Engineers to install and service

explosion suppression systems at customer jobsites. IEP

[Dkt. No. 8], and Allan Peacock [Dkt. No. 7]. These twenty-six

plaintiffs are Field Service Engineers at IEP.

2 The parties report that Count I, the substantive wage-and-hour

collective action claim, has been settled since the Defendants

first moved for summary judgment on all counts. [Dkt. No. 63].

See generally infra note 15.

provided schedules instructing Field Engineers to travel to

certain jobsites on specified dates to perform assigned work.

Field Engineers were responsible for making their own travel

arrangements but often booked their travel through Atlas Travel,

a company provided by IEP.

Field Engineers were required to complete an inspection and

then prepare a field service report certifying the inspection

and noting the condition of the system. Field engineers were

also required to discuss system discrepancies with the customer

and to obtain the customer’s signature on the report.3 IEP

supervisors considered report accuracy when determining job

performance.

2. IEP’s Timesheet Policy for Field Engineers

Since December 1, 2016, Field Engineers have reported their

hours in a time sheet submitted weekly to a supervisor for

review.4 The time sheet breaks down the hours worked into

3 Mr. Shaffer contends that there is a genuine dispute of

material fact over whether IEP Engineers were required to

discuss any discrepancies in the explosion suppression system

with customers and to have the customer sign the service report.

However, this purported dispute is not evident in the record

before me. In his deposition testimony, Mr. Shaffer himself

confirmed that both the discussion of discrepancies and the

procurement of the customer’s signature following that

discussion are “requirement[s].” See Deposition of Mark Shaffer

(“Shaffer Depo.”) at 101:3–22.

4 Mr. Shaffer disputes whether supervisors approved time sheets

submitted to them. See Deposition of Ulises Arteaga at 91:13–

92:6 [Dkt. No. 78, Ex. 3]. The dispute is not material to the

motion at hand.

several categories: in-plant time; office/miscellaneous

(including administrative time); driving time; and flying and

airport wait time within certain hours of the day.

The parties dispute – and the record is unclear on this

issue – whether IEP discouraged Field Engineers from reporting

more than one hour of administrative time per day. IEP points

to its Time Sheet Standard Operating Procedure (“SOP”), which

instructed Field Engineers “to accurately record their hours

worked through this system. Honesty is expected at all times,”

and “[n]o employee or supervisor has the authority to deviate

from this SOP.”5 [Dkt. No. 78, Ex. 15].

By contrast, Mr. Shaffer contends that Mr. Desautels sent a

written memorandum to Field Engineers instructing them that “if

[they] put down more than one hour of [administrative time],

then [they] would have to spend time with [their] supervisor and

5 Mr. Shaffer contends that a material dispute exists over

whether the SOP was disseminated for the purpose of instructing

field service engineers to record their time accurately. There

is evidence in the record that IEP Engineers felt pressured by

IEP managers to underreport their administrative time. See,

e.g., Deposition of Edward Schultz at 97:2–5 [Dkt. No. 78, Ex.

11] (testifying that his supervisor “told” him not to exceed an

hour per day on his time sheet); Deposition of Joey Gaines at

22:13–23:4 [Dkt. No. 78, Ex. 10] (testifying that Engineers

“were led to believe that . . . we had to put [certain] hours on

our time sheet administration wise” during conversations with

supervisors). However, Mr. Shaffer fails to cite any evidence

in the record that the SOP itself was disseminated for any other

purpose than to give instruction on reporting hours. I find

that the asserted dispute in this respect is not based in the

summary judgment record.

that [they] were considered not efficient enough.” Deposition

of Mark Shaffer (“Shaffer Depo”) at 184:12–185:5 [Dkt. No. 78,

Ex. 2] (discussing the memorandum from Mr. Desautels, which is

otherwise not included in the record). And on at least one

occasion, according to Mr. Desautels, Mike Dubois, an IEP field

service manager, “crossed out” a Field Engineer’s reported

administrative time of 11.75 and replaced it with 2 hours of

administrative time on the basis that “[he] didn’t believe it

was accurate . . . because it’s a high amount of office time.”

Deposition of Burke Desautels at 135:6-13 [Dkt. No. 78, Ex. 9].

The record reflects contradictory instruction from IEP with

respect to the reporting of administrative time. Three Field

Engineers testified in the Hall litigation, a parallel lawsuit

against IEP, to underreporting their administrative time on the

basis that IEP discouraged them from reporting more than an hour

of administrative time per day. See Deposition of Joey Gaines

(“Joey Gaines Depo.”) at 19:23–23:17 [Dkt. No. 78, Ex. 10];

Deposition of Edward Schultz (“Schultz Depo.”) at 100:19–101:4

[Dkt. No. 78, Ex. 11]; Shaffer Depo. at 184:4-5. But Mr.

Schultz, who has submitted a consent to suit in this litigation,

also testified that, on at least one occasion, he was instructed

by his supervisor, Matthew Hampson, who himself has filed a

consent to suit here, not to underreport his administrative time

and to record the full amount of hours he worked. See Schultz

Depo. at 95:19-24.

Mr. Shaffer appears to be the only engineer who was ever

issued a formal written reprimand for reporting too much

administrative time. While Joey Gaines testified that he

underreported his administrative time because of “[f]ear from

getting a phone call from my manager,” he also noted that he has

never actually been reprimanded for reporting more than one hour

of administrative time per day. See Joey Gaines Depo. at 19:23–

23:17. Similarly, Mr. Schultz testified that he was told that

he would receive a call from his manager and have to do

additional training if he reported more than an hour of

administrative time per day, but he did not state that he had

been told he would be otherwise reprimanded. See Schultz Depo.

at 97:2–4.

3. Mr. Shaffer’s Course of Employment and Ultimate

Discharge from IEP

Mr. Shaffer began his employment with IEP as a Field

Service Engineer on October 20, 2014. On his first day, he

raised concerns about overtime due Field Engineers with Brian

Baillargeon, the Field Service Commercial Manager. In the fall

of 2014, he raised the issue with his then-supervisor, Mr.

Schultz, and, separately, with Mr. Dubois, a Field Service

Manager who reported directly to the Defendant, Mr. Desautels.

a. Mr. Shaffer’s Participation in the Hall FLSA

Litigation Against IEP

In April 2016, Will Hall, a former Field Service Engineer,

sued IEP in this court for unpaid overtime. See Complaint, ECF

No. 1, Hall v. IEP Techs. LLC, No. 1:16-cv-10662-JCB (D. Mass.

Apr. 5, 2016). In his January 5, 2017 deposition in that

action, Mr. Hall testified that he contacted the Department of

Labor about potential FLSA violations at IEP because he “had

been having some conversations with Mark Schaefer [sic] about

overtime that was owed.” Mr. Hall remained the sole plaintiff

throughout the Hall litigation where no separate consents to

suit were filed, but Mr. Shaffer has asserted in this litigation

that he was subpoenaed twice in the Hall litigation. On

February 27, 2017, he received a subpoena duces tecum. On May

2, 2017, he received a subpoena for trial deposition testimony.

Mr. Shaffer responded to the records subpoena but the Hall

litigation was resolved before he could give his anticipated

deposition testimony. On May 31, 2017, the Hall parties advised

the court that a settlement was reached. See Joint Statement,

ECF No. 40, Hall v. IEP Techs., LLC, No. 1:16-cv-10662-JCB (May

31, 2017). On August 8, 2017, the court accepted the parties’

formal settlement agreement, which had been proffered under seal

during in camera proceedings in June. See Order, ECF No. 48,

Hall v. IEP Techs., LLC, No. 1:16-cv-10662-JCB (Aug. 8, 2017).6

Meanwhile, in early 2017, with the Hall litigation ongoing,

IEP conducted a “time study” of the time spent by Engineers on

administrative activities. Mr. Desautels has testified that

“[i]t became apparent to management that [Mr.] Shaffer was

spending far too much time on alleged administrative activities”

because for some weeks his administrative time “far exceeded

that of his counterparts.” Mr. Shaffer thereafter began

receiving weekly phone calls from his supervisor Ricky Rogers

warning him about the issue and in some calls instructing him to

provide additional documentation detailing the administrative

activities he performed.

6 The parties dispute whether Mr. Shaffer was the only IEP

Engineer who received a subpoena duces tecum in the Hall case.

IEP contends that at least five Field Service Engineers, other

than Mr. Shaffer, were subpoenaed because its counsel received

service copies of five identical subpoenas duces tecum addressed

to the following Plaintiff–Field Engineers who have filed

consents to suit in this case: Mr. Schultz, Joey Gaines, John

Gaines, Lawrence Tolo, and Sam Toller. However, IEP concedes in

its briefing that it does not know which of these five, if any,

were actually served by Mr. Hall’s counsel in that litigation.

Mr. Shaffer presents declarations from all five stating that

they, in fact, never received subpoenas. See Declaration of

Lawrence Tolo ¶ 5 [Dkt. No. 78, Ex. 14]; Declaration of Sam

Toller ¶ 5 [Dkt. No. 78, Ex. 14]; Declaration of Edward Schultz

¶ 5 [Dkt. No. 78, Ex. 14]; Declaration of Joey Gaines ¶ 5 [Dkt.

No. 78, Ex. 14]; Declaration of John Gaines ¶ 5 [Dkt. No. 78,

Ex. 14]. I find that the direct record of percipient witness

testimony establishes that Plaintiffs Schultz, Joey Gaines, John

Gaines, Tolo, and Toller did not receive subpoenas for records

in the Hall litigation. Consequently, I decline to consider

IEP’s contention for lack of a basis in the actual summary

judgment record.

Prior to March 2017, Mr. Shaffer had received only positive

performance reviews. He received his last good performance

review in February 2017. No date is given in the record for

that performance review, which occurred in the same month, on

the second to last day of which (on February 27, 2017), Mr.

Shaffer contends he received the subpoena duces tecum in the

Hall litigation.

b. The Simultaneous Delivery of Three Written

Warnings and Reprimands

Mr. Shaffer contends that between February and June 2017,

following his subpoenaed participation in the Hall litigation,

IEP assigned him to more multi-man crews and to fewer jobs in

Ohio.

On October 2, 2017, nearly two months after the formal

settlement of the Hall litigation and more than seven months

after IEP became aware in February 2017 that Mr. Shaffer was

being called to provide deposition testimony for that

litigation, Mr. Shaffer emailed his supervisor, Ricky Rogers, a

memorandum entitled, “The Elephant in the Room.” In the

memorandum, he expressed concern that he was “being pursued and

persecuted and bullied and pressured” due to his involvement in

the Hall litigation. See Shaffer Depo. at 274:23–275:16

(discussing contents of the Elephant in the Room memorandum,

which is not otherwise included in the record). Nine days

later, on October 11, 2017, IEP delivered Mr. Shaffer three

written warnings. Although delivered on October 11, all of the

warnings bore earlier dates.

In the collection delivered October 11, 2017, the written

warning dated September 29, 2017, addressed Mr. Shaffer’s

submission of administrative hours that exceeded those reported

by other Engineers. The reprimand also criticized Mr. Shaffer’s

submission of “excessive detail” with respect to the tasks

completed during his billed hours. The record reflects that Mr.

Shaffer was the only Engineer ever warned in writing about

submitting excessive administrative time.

The September 29 warning also addressed Mr. Shaffer’s

travel delay in getting to a customer’s emergency service call.

The parties dispute the facts underlying this portion of the

warning, which revolves around potential miscommunications among

Atlas Travel, IEP, and Mr. Shaffer. On that day, Mr. Dubois

instructed Mr. Shaffer to travel directly from Dayton to Roanoke

to address a customer’s emergency service call. According to

Mr. Desautels, Mr. Dubois had information – either from Atlas

Travel or from his own research, the record is not clear on this

matter – that a direct flight existed between Dayton and

Roanoke. According to Mr. Shaffer, Atlas Travel stated that no

direct flight existed from any of the surrounding airports in

Ohio and that he would have to drive to the airport in Detroit

and take a connecting flight. He did as Atlas recommended and

drove to the airport in Detroit. As a consequence, Mr. Shaffer

arrived a day later than instructed by his supervisor. The

September 29 reprimand concluded that Mr. Shaffer had chosen not

to follow his supervisor’s instructions to take a direct flight

to the customer site and that this failure constituted

insubordination.

The second written warning, dated October 2 but delivered

on October 11, concerned Mr. Shaffer’s travel delay in getting

to a customer site when he decided to return to his hotel to

shower rather than join his coworkers in traveling directly to

the next customer site.

The third written warning, delivered on October 11 but also

dated October 2, concerned Mr. Shaffer’s failure to travel to an

emergency customer call on October 1, 2017. On that day at 6:54

PM, Mr. Shaffer was in church without his phone when Bill

Merriam, a Senior Design Engineer, called him to arrange travel

on the first flight the next morning to a customer site. After

Mr. Shaffer didn’t answer his phone, Mr. Merriam called Mr.

Shaffer’s home phone and spoke with Mr. Shaffer’s wife who

stated that he would be at church until after midnight. Mr.

Merriam told her that Mr. Shaffer would still need to take the

first flight out of Ohio the next morning. At 1:52 AM, on

October 2, Mr. Shaffer emailed Mr. Rogers and Mr. Dubois that he

would be unable to make the first morning flight because he was

too tired. IEP was required to send a different Engineer, which

resulted in a delay in service to the customer. This Third

Written Warning advised that discharge was the next step in the

disciplinary process. Id.7

c. Termination

Mr. Shaffer’s termination occurred on April 18, 2018, more

than seven months after discharge was threatened by the delivery

on October 11, 2017, of the second October 2, 2017 warning and

reprimand. On that day, Mr. Shaffer inspected the explosion

suppression system of customer Innovative Fabrications and took

note of a wiring discrepancy. Nevertheless, in his field

service report, Mr. Shaffer certified that the explosion

suppression system was in proper working condition and he

secured the signature of the customer’s representative on that

report. On that day, after leaving the customer site, Mr.

Shaffer sent an email to Defendant Dubois and Plaintiffs Rogers

7 Another disciplinary incident occurred in late October 2017.

Mr. Shaffer was at a hotel doing his laundry when he received an

emergency call from IEP Supervisor Steve Haskell, directing him

to go to a customer site. Mr. Shaffer checked out and started

driving within twenty minutes of the call. After about two

hours of driving, Mr. Dubois called to inform Mr. Shaffer that

he was suspended and would be terminated pending further

investigation for allegedly refusing to answer the emergency

call. Mr. Shaffer explained the circumstances of the story to

Mr. Dubois and he was not disciplined on the basis of this

warning.

and Arteaga discussing the wiring discrepancy.8 See Email from

Mark Shaffer to Michael Dubois, Ricky Rogers, and Ulises Arteaga

(“Wiring Discrepancy Email”) (Apr. 18, 2018, 12:40 PM) [Dkt. No.

75, Ex. 16].

According to that email, Mr. Shaffer had completed

inspections at the Innovative Fabrications facility twice before

and on each of those occasions, he had taken note of the same

wiring discrepancy that affected how the customer’s explosion

suppression system tested fire for alarm. Id.9 According to the

8 The only description of this wiring discrepancy appears in this

April 18, 2018 email that Mr. Shaffer sent to the Defendant Mr.

Dubois and to Plaintiffs Rogers and Arteaga following his

inspection of the Innovative Fabrications site. See Email from

Mark Shaffer to Michael Dubois, Ricky Rogers, and Ulises Arteaga

(“Wiring Discrepancy Email”) (Apr. 18, 2018, 12:40 PM) [Dkt. No.

75, Ex. 16]. IEP states that it terminated Mr. Shaffer because

of the April 18, 2018 inspection and the Wiring Discrepancy

Email. See Letter from Burke Desautels to Mark Shaffer (May 8,

2018) (“May 8, 2018 Termination Letter”) [Dkt. No. 75, Ex. 17].

In the email, Mr. Shaffer describes the issue with the

customer’s explosion suppression system as follows:

The system consists of a sole EX200 control panel, two

pairs of static detectors installed on opposite

corners. All four static detectors test fire back to

the EX200 control panel correctly for fault

conditions. However, the specific pair mounted on

each dust collector does not test fire for alarm.

Yet, the two front static detectors on the separate

dust collectors test fire for alarm conditions. Also,

the two rear static detectors on the separate dust

collectors test fire for alarm conditions.

Wiring Discrepancy Email (emphasis in original).

9 This customer plant changed ownership during the relevant time

period at issue. From at least October 16, 2015 through January

2017, the plant was operated under a different name, which is

not provided in the record. See Wiring Discrepancy Email. From

January 2017 to January 2018, the plant was closed. Id. In

email, Mr. Shaffer had first noted the wiring discrepancy on

October 16, 2015. Id. On that day, Mr. Shaffer called Mr.

Baillargeon, IEP’s Field Service Commercial Manager, and left a

message detailing the discrepancy. Id. Apparently, Mr.

Baillargeon returned the call on the same day at 1:00 PM and

left a voice message “commending [Mr. Shaffer] for a nice

catch.” Id. According to the April 18, 2018 email, Mr.

Baillargeon called again on October 16, 2015, at 1:04 PM and

left another voice message explaining the source of the

technical issue10 but, as relevant here, concluding that Mr.

Shaffer should simply “mark the prints up.” Id. Mr. Shaffer

then spoke to an IEP design engineer (whose name is omitted from

the April 18, 2018 email)11 who further clarified that, “because

January 2018, the plant reopened under the name Innovative

Fabrications. Id. For clarity, I will refer to the plant as

Innovative Fabrications throughout because that is how Mr.

Shaffer’s April 18, 2018 email – the primary source of

information about this relevant chronology of inspections

preceding his termination on May 8, 2018 – refers to the

customer site. Id.

10 Specifically, according to the April 18, 2018 email, Mr.

Baillargeon explained to Mr. Shaffer “that page one of the

prints [of the design of the customer’s explosion suppression

system] appeared correct and that page two shows an error with

[static] detectors 1 and 1A on separate dust collectors and to

mark the prints up.” See Wiring Discrepancy Email.

11 In Mr. Shaffer’s filings in this case, he adds two facts

relating to the October 16, 2015 inspection and cites to a

portion of his deposition testimony as the evidentiary basis in

the summary judgment record. See Pl.’s Response to Defs.’

Statement of Undisputed Material Facts ¶ 109 (citing Shaffer

Depo. 280:13–289:3). First, he identifies the IEP design

engineer as Mark Hughes. Id. Second, he asserts that Mr.

the dust collectors share a common duct work, it would be fine.”

Id.

In the two days following his inspection of the Innovative

Fabrications site, Mr. Shaffer marked the prints for the

customer’s explosion suppression system according to the

instructions of Mr. Baillargeon, scanned the prints, and sent

the scans to IEP’s management office alongside a drawing that he

had made of the wiring discrepancy. Id. (describing attached

files dated October 17, 2015, at 7:19 PM and October 18, 2015,

at 8:13 PM).

Mr. Shaffer inspected the Innovative Fabrications system

again on December 7, 2016. Id. According to the April 18, 2018

email, Mr. Shaffer discovered the same wiring discrepancy during

his second inspection. Id. He looked at the prints for the

explosion suppression system and noted that they “had not been

changed yet.” Id. According to the email, he called IEP

management and again “was told [that] because the separate

vessels share a common duct work, it would be fine.” Id. He

was also told that the customer was “closing their doors

indefinitely” in January 2017, so “it would be OK.” Id. The

Baillargeon told him the discrepancy was just “a labeling

problem.” Id. However, the record does not actually include

the relevant cited portions of Mr. Shaffer’s deposition

testimony. Accordingly, I cannot find that these specific facts

have been established by the record actually before me.

April 18, 2018 email does not identify who Mr. Shaffer spoke to

in this December 7, 2016 call to IEP management.

Mr. Shaffer’s third and final inspection of the Innovative

Fabrications explosion suppression system on April 18, 2018,

precipitated his termination on May 8, 2018. The Wiring

Discrepancy Email explains that, although Innovative

Fabrications did shut down in January 2017, it reopened in

January 2018, which required an inspection of the customer’s

explosion suppression system. Id. As discussed, Mr. Shaffer

completed the inspection, certified in the service report that

the system was in proper working condition, and secured the

signature of the customer’s representative on that report. Id.

However, according to the Wiring Discrepancy Email, Mr. Shaffer,

after leaving the customer’s site, “kept thinking about the

strange way the [static] detectors were test firing” and called

the IEP office to relate his concerns. Id. He spoke with

Sawyer Hamlin, who told him that “although the detectors test

fired for alarm conditions according to the drawings [made by

Mr. Shaffer on his first visit in October 2016], the prints [of

the explosion suppression system], in fact, were incorrect and

the wiring needed to be changed.” Id. Mr. Shaffer agreed,

turned his car around and headed back to the customer site. He

told the customer he needed to reinspect the system. He tried

to remedy the issue, but was unable to do so.

That evening, Mr. Shaffer sent the April 18, 2018 Wiring

Discrepancy Email to Mr. Dubois, Mr. Rogers, and Mr. Arteaga.

After recounting the chronology stated above with respect to Mr.

Shaffer’s prior two inspections of the Innovative Fabrications

system, he explained in detail why he had been unable to fix the

wiring discrepancy that afternoon.12 He concluded that, “[i]n

order to correct this scenario, new wiring may have to be

pulled,” and that “[n]one of this [information about the wiring

discrepancy] has been conveyed to the customer. They think we

may return very soon with different labels, prints, etc, to

correct what they see as a small overlook.” Id. Mr. Shaffer

ended the email with his suggestion on how IEP could “get back

into the plant, correct the wiring, and save face.” Id.

12 Specifically, Mr. Shaffer explained:

Unfortunately, there is no main junction panel, only a

sole 3/4" threaded ridgid [sic] conduit running from the

EX200 controller to the first vessel, then to the second

vessel, then back to the first vessel once again. This

solid home run has several threaded LB fittings and Tees.

Please see my attached drawing to clearly show more

detail. Also, the sole conduit contains 6 separate

insulated conductors, which are listed as:

 Two conductors for the actuation circuit, terminals

44-45.

 Two conductors for the detector 1 circuit,

terminals 16-19.

 Two conductors for the detector 2 circuit,

terminals 20-23.

The customer has absolutely no electricians, electrical

department, wire, or equipment. This is due to the

building being stripped of everything upon closing its

doors over a year ago.

Wiring Discrepancy Email.

It was for the purported offense of certifying an

incomplete field service report on April 18, 2018 – as distantly

foreshadowed in the second October 2, 2017 warning delivered on

October 11, 2017 – that IEP says it discharged Mr. Shaffer on

May 8, 2018. The termination letter states:

To summarize, on April 18, 2018, you completed your

field service report certifying that the test fire

capabilities of the Innovative Fabrications system

were in “proper working condition.” Then, you

subsequently sent an email to Mike Dubois, Ricky

Rogers, and Ulises Arteaga at roughly the same time

stating that you found a “wiring discrepancy” in the

system and indicated that two of the detectors did not

properly test fire.

You should have indicated on the field service report

that further work was necessary and provided these

details on page 3 of the report. You should have

further explained to the customer your concerns before

leaving the job site. Your failure to take these

steps led the customer to believe that its system was

fine when you apparently did not believe that to be

the case.

See May 8, 2018 Termination Letter.

According to Mr. Desautels, the system was reinspected by

Mr. Hampson at some point after April 18, 2018. See Desautels

Depo. 209:4–9. Mr. Hampson reported, as Mr. Shaffer had, that

the client’s explosion suppression system was in proper working

condition. Id. And in its briefing, IEP now concedes that “the

customer’s system was functional” during the April 18, 2018

inspection. Def.’s Reply Memorandum to Pl.’s Opp. to Renewed

Mot. for Partial Summary Judgment 5 [Dkt. No. 81].

Nevertheless, the parties dispute the point at which Mr.

Shaffer understood that “a wiring discrepancy” was irrelevant to

the proper functioning of the explosion suppression system. IEP

contends that it was an “after-the-fact discovery,” id., but Mr.

Shaffer states that he had verbally discussed the discrepancy

with IEP management in his two prior inspections of the

customer’s system and was told the system “would be fine” by

other IEP personnel.13

C. Procedural History

Mr. Shaffer filed his own litigation on January 26, 2018

against IEP, Mr. Davis, and Mr. Desautels alleging in Count I

that IEP owed him unpaid overtime under the FLSA essentially

covering the timeframe from January 26, 2015 through January 26,

2018 and alleging in Count II a separate count of retaliation

under the FLSA against all Defendants.

On April 2, 2018, the Defendants moved to dismiss under

Federal Rule of Civil Procedure 12(b)(6). I found that motion

13 Confusingly, in the same breath that IEP contends that its

realization that the wiring discrepancy did not affect the

proper functioning of the explosion suppression system, it also

states that IEP “was correct in its assessment two years

earlier” – presumably referencing Mr. Shaffer’s first inspection

on October 16, 2015, when Mr. Baillargeon informed Mr. Shaffer

that, despite the noted wiring discrepancy, the customer’s

system “would be fine.” Def.’s Reply Memorandum to Pl.’s Opp.

to Renewed Mot. for Partial Summary Judgment 5 [Dkt. No. 81].

IEP’s assertion that it “was correct in its assessment two years

earlier” thus appears to support the proposition that Mr.

Shaffer alerted IEP to the wiring discrepancy in 2016.

moot after Mr. Shaffer filed an Amended Complaint on May 15,

2018 — a week after his termination on May 8, 2018. Discovery

proceeded as to the Amended Complaint in accordance with a

scheduling order entered May 24, 2018.

Eight months later, on March 15, 2019, the parties jointly

moved to stay the case pending mediation, and I granted that

motion. During the period of the stay, the scheduling order was

modified and extended.

When mediation proved unsuccessful, the stay was lifted and

the parties initiated summary judgment practice. After a

hearing on February 24, 2021, I denied the cross-motions without

prejudice.14 At the end of April, the parties gave notice that

they had settled the FLSA claim (Count I).15 The Defendants16 had

14 On June 9, 2021, I ordered [Dkt. No. 82] Mr. Shaffer to submit

an amended complaint by June 30, 2021, addressing concerns

raised at the February 24, 2021 hearing. Mr. Shaffer has yet to

make that submission, so I proceed to consider the pending

motion based on the summary judgment record as it stands.

15 The parties reported on April 30, 2021, that they were in the

process of preparing a Joint Motion to Approve Settlement

concerning the claims in Count I, [Dkt. No. 74 at 2 n.1], but

they have yet to do so.

16 As a formal matter, the motion for summary judgment before me

regarding Count II is presented only by Defendant IEP and not by

the individual Defendants, who are represented by the same

counsel. Presumably this presentation of the motion as being

brought only by IEP is framed in that way because the individual

Defendants cannot be held liable if IEP itself is not held

liable. In any event, in this Memorandum, I will reference

contentions regarding summary judgment as to Count II as being

made by the Defendants in the plural. My disposition of the

motion will be applicable to all three Defendants.

also moved for summary judgment as to the sole remaining claim

against all Defendants for retaliation under the FLSA (Count

II). It is the motion as to that remaining claim that I take up

here.

II. SUMMARY JUDGMENT AS TO RETALIATION

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

“genuine” dispute is one as to which, based on the record, “a

reasonable [factfinder] could resolve the point in the favor of

the non-moving party.” Sanchez v. Alvarado, 101 F.3d 223, 227

(1st Cir. 1996) (quoting Rivera-Muriente v. Agosto-Alicea, 959

F.2d 349, 352 (1st Cir. 1992)). A “material” fact is one that

has “the potential to affect the outcome of the suit under the

applicable law.” Id. (quoting One Nat’l Bank v. Antonellis, 80

F.3d 606, 608 (1st Cir. 1996)). If further “inquiry into the

facts is . . . desirable to clarify the application of the law,”

summary judgment is not appropriate. Mandel v. Bos. Phoenix,

Inc., 456 F.3d 198, 205 (1st Cir. 2006) (quoting Stevens v.

Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950)).

A. Retaliation Under the FLSA

Defendants have moved, see supra notes 2, 15 & 16, for

summary judgment against Mr. Shaffer’s individual claim of

retaliation in Count II on the basis that Mr. Shaffer has failed

to establish (1) changes to his assignments and certain warnings

and reprimands are adverse employment actions, and (2) the

requisite causal link between any adverse employment action

presented in the summary judgment record and his FLSA protected

activity.

The FLSA prohibits employers within its scope from

retaliating against an employee who has “filed any complaint or

instituted or caused to be instituted any proceeding under or

related to” the FLSA, “or has testified or is about to testify

in any such proceeding.” 29 U.S.C. § 215(a)(3).17

17 The FLSA prohibits retaliation by “any person” and defines

“person” to mean “an individual, partnership, association,

corporation, business trust, legal representative, or any

organized group of persons.” 29 U.S.C. § 203(a). Thus,

employer liability for retaliation is contemplated by the

statute. However, courts have also recognized that managers may

be subject to individual liability based on their

responsibilities and authority at the company. See, e.g., Moore

v. Appliance Direct, Inc., 708 F.3d 1233, 1237 (11th Cir. 2013)

(upholding personal liability for retaliation claim where

individual is considered “employer”); Pineda v. Skinner Servs.,

Inc., No. 16-12217-FDS, 2020 WL 5775160, at *24 (D. Mass. Sept.

28, 2020) (allowing anti-retaliation claims under the FLSA to

proceed against individual defendants).

Here, Mr. Shaffer brought his claim of retaliation in

violation of the FLSA against IEP as well as against Mr. Davis

and Mr. Desautels in their capacities as President and a Manager

of IEP, respectively. See Amended Complaint ¶¶ 67 & 68 (Count

II) [Dkt. No. 43]. Only IEP has formally moved for summary

judgment on Count II. See Renewed Motion for Summary Judgment

[Dkt. No. 73]. However, for the purpose of this motion for

summary judgment, the Defendants’ defenses against liability

under the anti-retaliation provision will rise or fall together.

See supra note 16. Accordingly, I refer to the Defendants in

the plural throughout this Memorandum.

Where, as here, the plaintiff does not allege direct

evidence of unlawful retaliatory animus, his claim is analyzed

under the three-step burden-shifting analysis articulated in

McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).18

Under the McDonnell approach, a plaintiff must first set forth a

prima facie case supporting an inference of retaliation. Id. at

802. Second, the burden of production shifts to the employer to

articulate a legitimate, nonretaliatory reason for the

termination. Id. Third, “if the employer produces evidence of

a legitimate nonretaliatory reason, the plaintiff must assume

the further burden of showing that the proffered reason is a

pretext calculated to mask retaliation.” Harrington v.

Aggregate Indus.-Ne. Region, Inc., 668 F.3d 25, 31 (1st Cir.

2012).

While “[t]his burden-shifting framework is a useful

screening device in the summary judgment milieu, . . . courts

typically put it aside once the third step is reached,” and

18 The parties do not dispute that the framework articulated by

the Supreme Court in McDonnell Douglas Corporation v. Green, 411

U.S. 792 (1973), for the Title VII context applies as well to a

retaliation claim in the FLSA context. In this connection, I

note that First Circuit caselaw “regard[s] Title VII, ADEA,

ERISA, and FLSA as standing in pari passu and endorse[s] the

practice of treating judicial precedents interpreting one such

statute as instructive in decisions involving another.”

Serapion v. Martinez, 119 F.3d 982, 985 (1st Cir. 1997). Cf.

Harrington v. Aggregate Indus.-Ne. Region, Inc., 668 F.3d 25, 31

(1st Cir. 2012) (holding that the McDonnell framework applies in

retaliation claims under the False Claims Act).

“look[] to the record as a whole to determine whether there is

sufficient evidence of ‘pretext and retaliatory animus’ to make

out a [triable] question.” Id. (quoting Mesnick v. Gen. Elec.

Co., 950 F.2d 816, 827 (1st Cir. 1991)). The question is “not

whether a reasonable [factfinder] could find that [the employer]

would have [taken adverse employment action against the

employee] even in the absence of retaliatory intent. Rather,

the question pertinent to . . . summary judgment is whether no

reasonable [factfinder] could find otherwise.” Travers v.

Flight Servs. & Sys., Inc., 737 F.3d 144, 148 (1st Cir. 2013).

B. Discussion

The Amended Complaint alleges that IEP retaliated against

Mr. Shaffer by: (1) assigning him to fewer jobs in his home

state of Ohio and, separately, to more multi-person crews, (2)

giving him three written disciplinary warnings, and, although

not expressly alleged in the Amended Complaint,19 (3) terminating

him on a pretextual basis.

19 Inexplicably, although Mr. Shaffer’s Amended Complaint was

filed after his termination, it does not expressly allege his

termination as an adverse employment action [See Dkt. No. 43 ¶

67]. Nevertheless, the discovery proceeded thereafter to

address the grounds for termination and the parties in their

briefing make argument regarding whether the asserted grounds

were pretextual. Under the circumstances, although Plaintiff’s

counsel has not been timely in response to my directive to

submit a conforming second amended complaint, I will address

termination as an adverse employment action. However, to

encourage Plaintiff’s counsel at last to submit appropriate

pleadings, I will, as will appear below, deny the Defendants’

Under the first step of McDonnell Douglas, a prima facie

case of retaliation under the FLSA requires the plaintiff to

show that “(1) [he] engaged in a statutorily protected activity,

and (2) his employer thereafter subjected him to an adverse

employment action (3) as a reprisal for having engaged in

protected activity.” Claudio-Gotay v. Becton Dickinson Caribe,

Ltd., 375 F.3d 99, 102 (1st Cir. 2004). The parties do not

dispute that Mr. Shaffer’s receipt of a subpoena duces tecum in

the Hall FLSA litigation on February 27, 2017, and his

prospective testimony in the Hall litigation in May 2017, as

well as the filing of his own FLSA suit against IEP on January

26, 2018, could each constitute protected activity. See 29

U.S.C. § 215(a)(3). The parties do dispute — at least partially

— whether either or both the second prong (adverse employment

action) and/or the third prong (motivated by reprisal) of the

McDonnell Douglas framework is supported by the record. I will

address the forms of retaliation implicated by Mr. Shaffer’s

pleading and the record before me before determining whether any

viable claims of adverse employment action may be said to have

been motivated by the intent to engage in reprisal for protected

activity.

motion for summary judgment without prejudice to reconsideration

upon Defendants’ motion of resubmittal and likely consequent

allowance if no appropriate conforming pleading is filed by

Plaintiff’s counsel on or before August 31, 2021.

1. Adverse Employment Action

a. Changes to Mr. Shaffer’s Job Assignments

Mr. Shaffer contends that, after participating in the Hall

litigation, he began to receive (i) fewer assignments in his

home-state of Ohio and (ii) more group assignments. Both

contentions fail to constitute adverse employment actions.

i. Fewer Assignments in Ohio

Mr. Shaffer’s claim that he was assigned to fewer jobs in

Ohio fails because the record demonstrates that his Ohio

assignments actually increased during the relevant period. He

worked 52 jobs in Ohio in 2015. He worked 71 Ohio assignments

in 2016, and 78 such jobs in 2017. Mr. Shaffer has failed as a

matter of law to establish the asserted adverse employment

action as to the Ohio assignment contention.

ii. More Group Assignments

The claim that Mr. Shaffer was assigned to more multi-

person assignments fails because the record does not establish

that these assignments were adverse employment actions.

While adverse employment actions are not necessarily

limited to such ultimate adversities as terminations, they must

also involve more than “[m]inor disruptions in the workplace,

including ‘petty slights, minor annoyances, and simple lack of

good manners.’” Morales-Vallellanes v. Potter, 605 F.3d 27, 36

(1st Cir. 2010) (quoting Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 68 (2006)). The standard for judging harm

is objective. Id. Thus, to state an adverse employment action,

a plaintiff must typically establish that the employer:

either (1) [took] something of consequence from the

employee, say, by discharging or demoting [him],

reducing [his] salary, or divesting [him] of significant

responsibilities, or (2) with[eld] from the employee an

accouterment of the employment relationship, say, by

failing to follow a customary practice of considering

[him] for promotion after a particular period of

service.

Blackie v. Maine, 75 F.3d 716, 725 (1st Cir. 1996) (internal

citations omitted).

Reassignments of job duties are “not automatically

actionable.” Billings v. Town of Grafton, 515 F.3d 39, 53 (1st

Cir. 2008) (quoting Burlington N., 548 U.S. at 71). Whether a

reassignment constitutes an adverse employment action depends

upon all of the circumstances viewed from “the perspective of a

reasonable person in the plaintiff’s position.” Id. (quoting

Burlington N., 548 U.S. at 71). Thus, transferring an employee

to a less prestigious position or a role requiring “far less

skill and significantly harsher working conditions” may

constitute a materially adverse employment action. Rodriguez-

Vives v. P.R. Firefighters Corps. of P.R., 743 F.3d 278, 286

(1st Cir. 2014) (quoting Tart v. Ill. Power Co., 366 F.3d 461,

473 (7th Cir. 2004)).

In a post-hearing submission I solicited, I permitted Mr.

Shaffer to direct me specifically to record support for his

contention that group assignments were adverse employment

actions. Mr. Shaffer submitted that multi-person jobs were less

desirable because, when he worked these assignments, he would

often agree to prepare the field service reports, which took up

to five hours of administrative time to complete.

However, Mr. Shaffer does not allege that the preparation

of a field service report was a requirement of his assignment to

multi-person jobs. Rather, he admits that he “was asked, never

instructed or told” by IEP to complete these reports and that he

“was never put on any type of pressure to do them.” The record

supports that he could simply have refused to perform the

reports at any time without repercussion. That Mr. Shaffer

often “ended up” performing these reports merely because “he

never refused the request” does not transform the assignment

itself into an adverse employment action. Indeed, he does not

allege that he expressed any preference at any time to IEP to be

assigned to single-person jobs.

In other words, even if the assignment to group jobs

strikes Mr. Shaffer now or even struck him then as subjectively

undesirable, he fails to allege that multi-person assignments

were objectively undesirable such that the assignments could

“well dissuade a reasonable worker from making or supporting a

charge of discrimination.” Billings, 515 F.3d at 54 (quoting

Burlington N., 548 U.S. at 57). “[A]n employee’s displeasure at

a personnel action cannot, standing alone, render it materially

adverse.” Billings, 515 F.3d at 53. Workplaces are “rarely

idyllic retreats, and the mere fact that an employee is

displeased by an employer’s act or omission does not elevate

that act or omission to the level of a materially adverse

employment action.” Morales-Vallellanes, 605 F.3d at 35

(quoting Marrero v. Goya of P.R., Inc., 304 F.3d 7, 23 (1st Cir.

2002)).

Mr. Shaffer has failed to show that he had a right to

single-person assignments, that single-person assignments are

objectively more desirable, or that his shift to more multi-

person assignments failed to follow any customary practices.

His multi-person assignment contention fails as a matter of law

to establish an objectively adverse employment action sufficient

to support a retaliation claim under the FLSA.

b. The Simultaneous Delivery of Three Written

Warnings and Reprimands on October 11, 2017

The First Circuit has recognized that a reprimand may

constitute an adverse action where it carries tangible

employment consequences, such as termination, suspension, or a

change in compensation and other benefits. See Billings, 515

F.3d at 54–55. However, when, as here, a formal reprimand does

not, itself, execute tangible consequences, but is “merely

directed at correcting some workplace behavior that management

perceive[s] as needing correction,” the reprimand generally does

not constitute an adverse employment action. Bhatti v. Trs. of

Bos. Univ., 659 F.3d 64, 73 (1st Cir. 2011). One exception to

this general rule appears to exist where the reprimand itself

directly relates to the protected conduct at issue.

In Billings, the First Circuit considered a retaliation

claim under Title VII and held that “a formal investigation and

reprimand[,] including a threat of ‘further, more serious

discipline,’” constituted an adverse employment action where it

was likely to have the effect of persuading the employee to

“choose not to proceed with the litigation in the first place.”

515 F.3d at 54–55. The court found that the written reprimand

at issue there was likely to have that effect because it was

justified by the supervisor through references to the employee’s

pending discrimination suit. The court emphasized that the

employer’s justification for the reprimand was that the employee

was “being insufficiently careful ‘[i]n light of [her] pending

litigation.’” Id. at 55 (alterations in original). The court

explained that a jury could reasonably find that an employee who

received discipline on a basis related to her pending

discrimination suit against her employer “knows that, [by filing

a complaint of employment discrimination], she risks a formal

investigation and reprimand . . . [and] might well choose not to

proceed with the litigation in the first place.” Id. at 54–55.20

By contrast, the reprimands at issue here were prototypical

criticisms of an employee’s specific work. Whether or not they

were justified based on Mr. Shaffer’s performance, they did not

have the critical characteristic of the reprimand in Billings

that directly implicated the employee’s pursuit of statutorily

protected activity and therefore could reasonably support an

inference of retaliation.

The reprimands at issue here are akin to the “tamer beasts”

described in Bhatti. 659 F.3d at 73. There, the reprimands

also warned of further disciplinary actions, up to and including

termination, as the plaintiff contended to the Court of Appeals.

See Brief for Plaintiff-Appellant, Bhatti v. Trs. of Bos. Univ.,

659 F.3d 64 (1st Cir. 2011) (No. 10-2342), 2011 WL 970412, at

*38. And there, the Court of Appeals agreed with the plaintiff

20 On appeal in Billings, the First Circuit also observed that

the formal reprimand was uniquely severe with respect to usual

disciplinary processes because the supervisor was reacting to

the presence of the pending FLSA litigation against him. See

generally Billings v. Town of Grafton, 515 F.3d 39 (1st Cir.

2008). The First Circuit, echoing an observation by the

district court, itself observed that the supervisor conceded

that, “in the absence of the discrimination charge [filed by the

plaintiff-employee against him], he would have handled the

incident differently,” either by leaving the issue unaddressed

or addressing it in a less formal manner. Id. at 42; see also

Billings v. Town of Grafton, 441 F. Supp. 2d 227, 237 (D. Mass.

2006), overruled on other grounds 515 F.3d 39 (1st Cir. 2008).

that the reprimands were “undeserved.” Bhatti, 659 F.3d at 73.

However, the court also emphasized that the plaintiff’s “working

conditions were never altered” in negative aspects. Id.

Because, as a matter of law, “a criticism that carries with it

no consequences is not materially adverse and therefore not

actionable,” the court found that the reprimands did not suffice

to form the foundation of a retaliation claim. Id.

Similarly here, Mr. Shaffer provides no evidence that any

of the three written reprimands he received on October 11, 2017,

“‘materially change[d] the conditions’ of [his] employment and

thus [provides] no reason to think that [these reprimands] alone

qualified as an ‘adverse employment action.’” Micheo-Acevedo v.

Stericycle of P.R., Inc., 897 F.3d 360, 365 n.3 (1st Cir. 2018)

(alterations in original) (quoting Gu v. Bos. Police Dep’t, 312

F.3d 6, 14 (1st Cir. 2002)). Mr. Shaffer cannot allege that the

reprimands affected his participation in the Hall suit, because

the parties in that litigation had announced their agreement to

settle the suit five months earlier in May 2017. Nor does Mr.

Shaffer allege that the reprimands dissuaded him from pursuing

his own FLSA litigation against IEP, which he filed

approximately three months later in January 2018. More

importantly, Mr. Shaffer does not allege that the reprimands had

any tangible effect on his work conditions until his termination

in May 2018 – seven months later.21

I find that the three formal reprimands — individually or

together — cannot, as a matter of law, be found to constitute a

materially adverse employment action because they carried no

consequences to Mr. Shaffer’s employment.

c. Termination on May 8, 2018

By contrast, there can be no dispute that termination is

the quintessential adverse employment act. See 29 U.S.C. §

215(a)(3) (unlawful “to discharge . . . any employee because such

employee has filed any complaint” under the FLSA). Thus,

causation becomes the next step to consider in determining

whether Mr. Shaffer has established on the summary judgment

record a prima facie case of retaliation. In other words, to

survive summary judgment, Mr. Shaffer must demonstrate a genuine

issue of material fact as to whether retaliation was IEP’s real

intent underlying his termination. He undertakes to do so in

21 In light of the lack of concrete adverse actions in the seven

months separating the formal written reprimands delivered on

October 11, 2017 and Mr. Shaffer’s ultimate termination in May

2018, I find as a matter of law that the disciplinary events are

too attenuated to consider the latter a causal consequence of

the former. Even where a reprimand warns of future disciplinary

actions, it cannot constitute adverse employment action when

more than seven months of employment subsequently pass without

repercussion. That said, I do consider the formal written

reprimands as evidentiary in my consideration of the question of

pretext in connection with Mr. Shaffer’s ultimate termination.

reliance upon the temporal proximity between his termination and

the protected activity of filing this FLSA action.

2. Motivated by Reprisal

Circumstantial evidence, such as temporal proximity,

“alone[,] can suffice to ‘meet the relatively light burden of

establishing a prima facie case of retaliation.’” DeCaire v.

Mukasey, 530 F.3d 1, 19 (1st Cir. 2008) (quoting Mariani-Colón

v. Dep’t of Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 224

(1st Cir. 2007)). But “[t]he cases that accept mere temporal

proximity between an employer’s knowledge of protected activity

and an adverse employment action as sufficient evidence of

causality to establish a prima facie case uniformly hold that

the temporal proximity must be ‘very close.’” Clark Cty. Sch.

Dist. v. Breeden, 532 U.S. 268, 274 (2001) (per curiam) (quoting

O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir.

2001)).

Thus, the Supreme Court in Breeden made clear that twenty

months, considered alone, is too long a time period to support

an inference of retaliation under the FLSA. 532 U.S. at 274.

For its part, the First Circuit further tightened this stand-

alone outer limit when it held that “a gap of several months

cannot alone ground an inference of a causal connection between

a complaint and an allegedly retaliatory action.” Ahern v.

Shinseki, 629 F.3d 49, 58 (1st Cir. 2010) (holding a six-month

gap too attenuated without corroborative evidence of causation).

a. Temporal Proximity Between the Hall Litigation

and Termination

Setting aside the October 11, 2017 warnings, which I have

determined are not adverse employment actions in and of

themselves,22 the parties set forth different milestones with

respect to Mr. Shaffer’s involvement in the Hall litigation from

which to measure temporal proximity supporting an inference of

retaliation.

The shortest timeline is proposed by Mr. Shaffer, who

contends that I should look to the settlement of the Hall

litigation on August 7, 2017.23 As an initial matter, it is not

22 For this reason, I do not consider Mr. Shaffer’s contention

that his prima facie case rests on the two months separating the

final formal August 2017 settlement of the Hall litigation and

the October 11, 2017 delivery of written formal warnings. While

a two-month time span would likely support an inference of

retaliation and a prima facie case, see Mariani-Colón v. Dep’t

of Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 224 (1st Cir.

2007) (holding that temporal proximity of two months suffices to

establish a prima facie case of retaliation), I have already

determined, see supra note 21 and accompanying text, that the

October 2017 reprimands are too attenuated from Mr. Shaffer’s

ultimate termination in May 2018 to infer that the former could

be causative of the latter. Thus, I look to the reprimands only

as evidence of pretext and not as adverse employment actions in

and of themselves.

23 For its part, IEP sets forth a far more distant milestone that

does not merit extended discussion. It argues that the clock

started when Mr. Shaffer began complaining to IEP management

about potential FLSA violations within days of his hire in 2014.

Accepting this asserted span of nearly four years would put Mr.

Shaffer’s claim far outside the limits of retaliatory inference

clear that I should look to the district court’s order adopting

the parties’ proposed settlement in August 2017, rather than to

the parties’ announcement of proposed settlement in May 2017.

The First Circuit rejected a similar argument in Abril-Rivera v.

Johnson, where it held that the dismissal of a class complaint

by a decision of the U.S. Equal Employment Opportunity

Commission “cannot be construed as protected activity on the

part of the plaintiffs.” 806 F.3d 599, 609 (1st Cir. 2015)

(emphasis in original). Rather, the court found that the last

protected activity on the part of the plaintiffs for the purpose

of measuring temporal proximity supporting an inference of

retaliation was the filing of the complaints of discrimination.

Id. Similarly here, I cannot fairly say that Mr. Shaffer’s

involvement was active throughout the Hall litigation. It

appears to have begun as reactive isolated participation in the

under the FLSA. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S.

268, 274 (2001) (per curiam). IEP fails to adduce authority

holding that federal courts should measure temporal proximity

from the very first colorable FLSA-protected activity, rather

than from the latest FLSA-protected activity preceding the

adverse employment action. I see no reason to adopt IEP’s

approach.

For the same reason, I reject IEP’s argument that I should

measure from January 2017, when it deposed Mr. Hall and became

aware of Mr. Shaffer’s indirect involvement in the Hall

litigation. Mr. Shaffer’s subsequent receipt of a subpoena

duces tecum constituted the statutorily protected conduct under

the FLSA and is therefore the earliest proper milestone for

determining temporal proximity with respect to his participation

in the Hall litigation.

form of receiving a subpoena duces tecum in February 2017.

The span of over a year between Mr. Shaffer’s participation

in the Hall FLSA litigation in February 2017 and his termination

in May 2018 is too distant to support a prima facie case of

retaliation. See Mesnick v. Gen. Elec. Co., 950 F.2d 816, 828

(1st Cir. 1991) (holding that the nine-month period between the

protected conduct and the alleged retaliation undermined the

inference of causation); Murray v. Warren Pumps, LLC, 821 F.3d

77, 88 (1st Cir. 2016) (“[C]omplaints occurred six months to a

year prior to his termination, which is too remote in time from

the adverse employment action to establish a retaliation nexus .

. . .”).

b. Timespan Between Mr. Shaffer’s Filing of an FLSA

Suit and Termination

Mr. Shaffer does not expressly allege or clearly argue that

I should determine temporal proximity based on the time span of

slightly less than three and a half months separating his filing

of this FLSA suit on January 26, 2018, and his termination on

May 8, 2018. Rather than finding that his attorney’s indolent

pleading and cursorily crafted briefing ends the matter, I will

address the question as the foundation for entering a procedural

order requiring him to conform the operative pleading by the end

of this month or suffer dismissal. See supra note 19.

Temporal proximity can support an inference of causation,

but this inference weakens with the passage of time. Case law

finding that temporal proximity alone supported an inference of

retaliation has permitted a gap of just a few months between an

employee’s protected conduct and adverse employment action

against him. See, e.g., Calero-Cerezo v. U.S. Dep’t of Justice,

355 F.3d 6, 25 (1st Cir. 2004) (one month); Mariani-Colón, 511

F.3d at 224 (two months). Mr. Shaffer relies upon a gap of just

over three months. The longest period that the First Circuit

has held supported a prima facie case on summary judgment

appears to be three months. See Sánchez-Rodríguez v. AT & T

Mobility P.R., Inc., 673 F.3d 1, 15 (1st Cir. 2012).

Nevertheless, three months appears to present the uncertain

borderline of temporal proximity that alone supports an

inference of retaliation. See Pena v. Honeywell Int’l, Inc.,

923 F.3d 18, 32 (1st Cir. 2019) (“The gap of four months, on its

own, is not ‘very close’ for establishing causality.” (quoting

Cherkaoui v. City of Quincy, 877 F.3d 14, 29 (1st Cir. 2017));

Calero-Cerezo, 355 F.3d at 25 (noting that “[t]hree and four

month periods have been held insufficient to establish a causal

connection based on temporal proximity”); Colburn v. Parker

Hannifin/Nichols Portland Div., 429 F.3d 325, 337–38 (1st Cir.

2005) (finding no “inference of retaliatory motive” where

plaintiff “began to take leave [under the FMLA] . . . and was

not terminated until almost four months later”). But see

Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 25

(1st Cir. 2014) (holding that a five-month gap is sufficiently

proximate to survive a motion to dismiss).

Ultimately, an inference of retaliation can survive a lack

of close proximity when the passage of time “is merely one

factor relevant to causation.” Id. And where a longer time

span does not independently raise an inference of retaliation,

it may nevertheless be “reinforced by other evidence”

corroborating an inference of retaliation. Trainor v. HEI

Hospitality, LLC, 699 F.3d 19, 28 (1st Cir. 2012); see also

Shinseki, 629 F.3d at 58 (same). Because “the significance of

any given act of retaliation will often depend upon the

particular circumstances[,] [c]ontext matters.” Planadeball v.

Wyndham Vacation Resorts, Inc., 793 F.3d 169, 178 (1st Cir.

2015) (quoting Burlington N., 548 U.S. at 69).

Here, Mr. Shaffer had received only positive performance

reviews up through February 2017. After his participation in

the Hall litigation became known on February 27, the pattern of

positive reviews for his performance began to deteriorate with

unexpected criticism from IEP supervisors escalating into a

series of reprimands that finally culminated in his termination.

The Defendants, for their part, have not attempted to explain

why all three reprimands were delivered at the same time,

October 11, 2017, when each bore earlier dates, one at least

nine days prior. The post-dated delivery of the reprimand

suggests development of pretext.

The written reprimands that rained down on Mr. Shaffer were

delivered to him just a week after he emailed the Defendants a

memorandum entitled, “The Elephant in the Room.” That

memorandum unambiguously raised his concerns that he was “being

pursued and persecuted and bullied due to his involvement in the

Hall litigation.”

Other disciplinary activity Mr. Shaffer confronted,

following the October 11, 2017 warnings and reprimands, does not

dissipate the developing cloud of retaliatory animus. For

example, in late October 2017, IEP undertook to discipline Mr.

Shaffer by suspending him (as a preliminary step in the

termination process) for allegedly “refusing to answer an

emergency call.” However, after an internal investigation, IEP

determined that it lacked a factual basis for that disciplinary

action and rescinded the suspension. It was not until the final

reprimand some six months later in April 2018, for failing to

flag what could be termed a labeling problem in an inspection

report, that IEP implemented the cognizable adverse employment

action of termination. The circumstances of the termination

itself suggest retaliatory animus because a different IEP Field

Service Engineer subsequently agreed with Mr. Shaffer’s

assessment – and IEP now concedes that Mr. Shaffer’s report was

correct if incomplete.

To survive summary judgment, Mr. Shaffer must show specific

admissible facts “from which a reasonable factfinder could infer

that the employer retaliated against him for engaging in the

protected activity.” Blackie, 75 F.3d at 723. He has done so

here. In light of the strong suggestions of pretext arising

from the string of warnings and reprimands that IEP relied on to

justify Mr. Shaffer’s termination, I find that the gap of less

than three and half months between his filing of the instant

FLSA suit and his termination suffices to establish a prima

facie case in the summary judgment record now before me.

3. Facially Legitimate Non-Retaliatory Reason

At the summary judgment phase, the “juxtaposition of the

[employee’s] prima facie case with [the employer’s] proffered

reason makes further use of the burden-shifting framework

unnecessary.” Harrington, 668 F.3d at 32. At this point, the

question becomes whether a reasonable factfinder could infer

that Mr. Shaffer was fired for his FLSA activities, rather than

for inefficiencies or errors at work.

Although a “properly supported summary judgment motion

cannot be defeated by relying upon conclusory allegations,

improbable inferences, acrimonious invective, or rank

speculation,” id. at 33 (quoting Shinseki, 629 F.3d at 54), the

First Circuit has warned that “[c]ourts should be especially

cautious before granting summary judgment when pretext and

retaliatory animus are at issue,” id.

Here, the parties present two competing arguments regarding

the facts leading up to the adverse employment action of

termination. The conflicting narratives underscore a genuine

dispute of material fact that precludes summary judgment.

“[W]here the issue at bottom comes down to a determination of

[an employer’s] motive and intent, the court’s mandate is to

defer to the [factfinder].” Mogilevsky v. Wellbridge Club

Mgmt., Inc., 905 F. Supp. 2d 405, 413 (D. Mass. 2012) (internal

quotation marks omitted).

I need not proceed to the third step of the McDonnell

Douglas analysis because I have observed that the record

presents factual issues concerning pretext that necessarily

foreclose a summary judgment disposition.

* * * *

IEP’s motives for terminating Mr. Shaffer are adequately

disputed on the record before me and must be decided by a

factfinder. I will deny the Defendants’ motion for summary

judgment on Count II.

III. CONCLUSION

For the reasons set forth more fully above, I DENY the

Defendants’ renewal of the Motion [Dkt. No. 73] for Summary

Judgment, without prejudice to its reconsideration upon

Defendants’ motion of resubmittal and likely consequent

allowance if the Plaintiff does not, on or before August 31,

2021, in accordance with this Memorandum and Order and a

Procedural Order to be issued separately later today, file an

amended complaint conforming to the evidence, including an

express claim that he suffered adverse employment action by

termination.

/s/ Douglas P. Woodlock_______

DOUGLAS P. WOODLOCK

UNITED STATES DISTRICT JUDGE