# Shaffer v. IEP Technologies, LLC

> District Court, D. Massachusetts · August 16, 2021

URL: https://www.frixlaw.com/law-library/cases/10199670

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** August 16, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10199670

## How later opinions describe it (automated extraction)

- holding a six-month gap too attenuated without corroborative evidence of causation
- describing attached files dated October 17, 2015, at 7:19 PM and October 18, 2015, at 8:13 PM
- holding that the McDonnell framework applies in retaliation claims under the False Claims Act
- holding that the nine-month period between the protected conduct and the alleged retaliation undermined the inference of causation

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10199670. Public record. Not legal advice.