Employment – Retaliation – FLSA

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Where a plaintiff has alleged that he was retaliated against after making several complaints to his superiors about his entitlement to overtime wages, the defendant’s motion for summary judgment should be denied with respect to the plaintiff’s retaliation claim under the Fair Labor Standards Act, as a jury could reasonably find that the plaintiff engaged in protected activity.

“Plaintiff Scott Cullinane previously worked as a grounds specialist for the Town of Concord, the defendant in this action. In October 2017, after responding to two after-hours calls to remove fallen trees, Cullinane made several complaints to his superiors about his entitlement to overtime wages for that work. Five weeks later, the Town referred Cullinane to the Concord Police Department over allegations that he stole the Town’s scrap metal, and that referral precipitated Cullinane’s arrest and placement on administrative leave. After eventually resigning his position, Cullinane filed suit, bringing claims of retaliation in violation of the Fair Labor Standards Act (‘FLSA’), wrongful termination in violation of public policy, and violations of his First Amendment speech and Fourteenth Amendment due process rights. Pending before the Court is the Town’s motion for summary judgment on all counts. For the reasons that follow, the motion will be granted with respect to Cullinane’s wrongful termination and constitutional claims, but his retaliation claim under the FLSA may proceed to trial. …

“Cullinane asserts that after he complained about the Town’s refusal to pay overtime wages due to him under the Fair Labor Standards Act, the Town retaliated against him by using the scrap metal episode to spur a police investigation into him and place him on administrative leave. …

“… Although Cullinane did not specifically point to the FLSA in these conversations, a jury could reasonably find that his requests for eight hours of overtime pay were ‘sufficiently clear and detailed’ to put a reasonable employer on notice that he was invoking the protection of that statute. … A reasonable jury could find such pointed complaints sufficient to put the Town on notice that Cullinane was asserting his right to overtime pay under the FLSA. …

“The Town disagrees, contending that it always intended to pay Cullinane four hours of overtime pay, and that the only dispute was whether it would pay him eight hours of overtime pay. But the question is not, as the Town contends, whether the employer intended to comply with the FLSA. The question is whether ‘a reasonable, objective person would have understood the employee to have put the employer on notice that the employee [was] asserting statutory rights under the Act.’ … And a reasonable, objective person could, on these facts, have understood Cullinane to put the Town on notice of his assertion of his right to overtime wages under the FLSA. … And whether he was in fact entitled to four or eight hours of overtime pay under the FLSA is not dispositive, because the antiretaliation provision ‘also protects employees who articulate a good faith, though unproven, belief that the employer is violating their rights under the FLSA.’ … Viewed in the light most favorable to Cullinane, this record could lead a jury to find that Cullinane engaged in protected activity because his complaints reasonably put the Town on notice that he was invoking his rights to be paid overtime wages he believed he was owed under the FLSA.

“The Town does not dispute, with respect to the second element, that Cullinane was subject to adverse employment actions when it referred him to the Concord Police Department in connection with the scrap metal episode and then placed him on paid administrative leave. And, with respect to the third element, a reasonable jury could find that these adverse employment actions would not have occurred but for Cullinane’s protected conduct. The temporal proximity between these events — about five weeks between Cullinane’s October 30, 2017 complaints and the Town’s December 7, 2017 decision to refer him to the police and place him on leave — can give rise to an inference of causation. … The record also contains evidence that shortly after Cullinane voiced his overtime pay complaints, the Town deviated from its standard practice of allowing employees to repurpose trashed scrap metal and other town materials by initiating the police investigation and placing him on leave. … Seen in the light most favorable to Cullinane, the Town’s adverse actions could reasonably be construed as retaliation for Cullinane’s protected conduct. The Town’s motion will, accordingly, be denied as to Cullinane’s FLSA retaliation claim.”

Other counts

“Cullinane next asserts that the Town wrongfully terminated his employment in violation of public policy. Although an at-will employee like Cullinane traditionally can ‘be terminated for any reason or for no reason,’ Harrison v. NetCentric Corp., 433 Mass. 465, 478 (2001), the ‘public policy exception’ to this rule protects employees who are fired for ‘asserting a legally guaranteed right,’ ‘doing what the law requires,’ ‘refusing to do what which the law forbids,’ and ‘performing important public deeds, even though the law does not absolutely require the performance of such a deed.’ … Seeking to invoke this exception, Cullinane contends that the Town constructively discharged him from his job because he asserted his right to overtime pay. …

“Cullinane’s shifting accounts of his reasons for resigning cannot create a dispute of material fact that justifies resolution by the jury, because the standard for constructive discharge is objective, not subjective. … And this record, viewed in the light most favorable to Cullinane, does not demonstrate that his working conditions in May 2018 had become so intolerable that a reasonable employee in his place would have felt forced to resign. Because Cullinane was not constructively discharged, but rather resigned voluntarily from his position, the Town is entitled to summary judgment on his wrongful termination claim. …

“Cullinane’s final claim against the Town, brought under 42 U.S.C. §1983, asserts violations of his First Amendment right against retaliatory arrest and Fourteenth Amendment due process rights. His claim is premised on three distinct theories. First, invoking procedural due process, he contends that he was entitled to an opportunity to be heard by Town officials before they referred his potential theft of scrap metal to the Concord Police Department. Second, invoking substantive due process, he argues that the Town failed to properly train its employees on the contours of the FLSA. Third, invoking the First Amendment, he contends that he was subject to an arrest in retaliation for his speech — specifically, his complaints regarding overtime pay. The Court agrees with the Town that each of these theories fails as a matter of law.”

Cullinane v. Town of Concord (Lawyers Weekly No. 02-519-25) (22 pages) (Kobick, J.) (Docket No. 1:23-cv-11526-JEK) (Sept. 23, 2025).

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