Labor & Employment Law Daily Wrap Up, RETALIATION—D. Mass.: Employee’s FLSA retaliation claim survives employer’s summary judgment motion, but other claims dismissed, (Sep 29, 2025)

By Ronald Miller, J.D.

The court determined that a reasonable jury could find that the employee’s three conversations with city officials regarding overtime for two call outs was sufficient to put the employer on notice that he was asserting his right to overtime pay under the FLSA.

An employer was denied its motion for summary judgment against an employee’s claim for FLSA retaliation stemming from a theft investigation of scrap metal that was instituted after he complained to superiors about his entitlement to overtime wages after responding to two after-hours calls, ruled a federal district court in Massachusetts. On the other hand, the court granted the employer’s motion for summary judgment with respect to the employee’s claims for wrongful termination, First Amendment retaliation, and violation of due process rights. Because the employee was not constructively discharged, but rather resigned voluntarily from his position, the employer was entitled to summary judgment on his wrongful termination claim. Further, the employee failed on his Constitutional claims asserting violations of his First Amendment right against retaliatory arrest and Fourteenth Amendment due process rights (Cullinane v. Town of Concord, No. 1:23-cv-11526-JEK (D. Mass. Sept. 23, 2025)).

The employee began working for the employer’s Department of Public Works (DPW) in 1997. He was employed as a grounds specialist whose responsibilities included tree maintenance and removal, grounds work, and aerial lift operation work. His position required him to be on call for emergencies, including tree removal due to storm damage.

Emergency call outs. On October 29, 2017, the employee received two separate after-hours calls for the emergency removal of fallen trees. He worked no more than four hours between the two calls.

For emergency calls such as these, the employer’s bylaws provided that he would be compensated “a minimum of four (4) hours pay for such work when the assignment or recall was made less than eight (8) hours prior to the scheduled start time.” There is no dispute that both tree removal calls were made less than eight hours before the start time of the employee’s next shift on the morning of October 30, 2017, and that these tree removal calls were overtime work eligible for payment at the overtime rate. The employee assumed that pursuant to the bylaws and past practice, he would be paid at an overtime rate for eight hours—that is, four hours for each of the two calls he received that night.

The next morning, the assistant superintendent of the department declared that he would not pay the employee. After his conversation, the employee complained to the supervisor of public works that he was entitled to pay for two callbacks. He later spoke with the HR director about his overtime complaint. Ultimately, no later than November 15, 2017, the employer informed the employee that it would pay him for eight hours, or two callbacks, at the overtime rate.

2017 Arrest. On December 6, 2017, DPW conducted a cleanup at its yard. The employee was tasked with cleaning up piles of scrap metal that the employer was throwing in the trash. After inquiring about the disposition of the scrap metal, the employee used his lunch break to load items on the bed of his truck.

On December 7, 2017, the police department received a report that the employee was stealing scrap metal from the DPW yard. Later that day, the employee was arrested for stealing from DPW. Ultimately, no criminal charges were pursued.

The employee was placed on administrative leave and issued a no trespass order, pending an investigation into the allegations that he had stolen DPW property. Ultimately, the employee resigned his employment.

Lawsuit. On October 15, 2020, the employee filed suit in state court against the employer alleging retaliation under the Massachusetts Wage Act, M.G.L. c. 149, § 148A. On September 13, 2022, the Massachusetts Appeals Court held that the Wage Act’s antiretaliation provision does not waive the sovereign immunity of governmental employers.

The employee’s amended complaint asserted several new claims: wrongful termination; retaliation in violation of the FLSA; and violations of the employee’s First Amendment right against retaliatory arrest and Fourteenth Amendment procedural and substantive due process rights. The case was removed to federal court and the employer moved for summary judgment.

FLSA retaliation claim. The employee asserted that after he complained about the employer’s refusal to pay overtime wages due to him, it retaliated against him by using the scrap metal episode to spur a police investigation into him and place him on administrative leave.

Under the FLSA’s anti-retaliation provision, an employer may not “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to” the FLSA. A plaintiff asserting a claim of unlawful retaliation under the FLSA must demonstrate that “(1) [he] engaged in a statutorily protected activity, and (2) his employer thereafter subjected him to an adverse employment action (3) as reprisal for having engaged in protected activity.”

Here, the court determined that a reasonable jury could find that the employee’s three conversations with city officials regarding overtime for the two call outs was sufficient to put the employer on notice that he was asserting his right to overtime pay under the FLSA. Moreover, the employer did not dispute that the employee was subject to adverse employment actions when it referred him to the police department in connection to the scrap metal episode.

Thus, the employer’s adverse actions could reasonably be construed as retaliation for the employee’s protected conduct. Accordingly, the employer was denied its motion for summary judgment as to his FLSA retaliation claim.

Wrongful termination claim. However, the employee did not fare as well on his other claims. Next the employee asserts that the employer wrongfully terminated his employment in violation of public policy. Seeking to invoke the “public policy exception,” the employee contended that the employer constructively discharged him from his job because he asserted his right to overtime pay.

Under Massachusetts and federal law, a constructive discharge occurs where “‘working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.’” “The test is met if, based on an objective assessment of the conditions under which the employee has asserted he was expected to work, it could be found they were so difficult as to be intolerable.”

Here, the record shows that, at the time of his resignation on May 10, 2018, the employee had not performed his job for five months. The employer made multiple attempts to contact him, both directly and via counsel, regarding his medical status and availability, but he did not respond to this outreach or request a continuation of his leave. Thus, a reasonable jury could not conclude that these working conditions were so intolerable as to compel an objectively reasonable employee in the employee’s shoes to resign. Because the employee was not constructively discharged, but rather resigned voluntarily from his position, the employer was entitled to summary judgment on his wrongful termination claim.

Constitutional claims. The employee’s final claims asserted 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 contended that he was entitled to an opportunity to be heard before officials referred his potential theft of scrap metal to the police department. Second, he argued that the employer failed to properly train its employees on the contours of the FLSA. Third, he contended that he was subject to an arrest in retaliation for his speech—his complaints regarding overtime pay.

Here, the court agreed with the employer that each of these theories failed as a matter of law. With respect to the employee’s first and third theories of liability, he failed to identify any municipal policy that caused the alleged procedural due process or First Amendment violations. With respect to his second theory, the court rejected his assertion that the employer’s failure to train its employees on the FLSA amounted to official municipal policy that deprived him of his rights. Thus, the employer was entitled to summary judgment on this theory.

The case is No. 1:23-cv-11526-JEK.

Judge: Kobick, J.

Attorneys: Lisa Brodeur-McGan (Brodeur-McGan, P.C.) for Scott Cullinane. Daniel G. Skrip (Pierce Davis & Perritano) for Town of Concord.

Companies: Town of Concord

Cases: Retaliation Discharge IndividualRights WageHour WorkingTime Overtime MassachusettsNews