UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Karen Cook

v. Civil Action No. 06-cv-58-JD

Opinion No. 2007 DNH 132

CTC Communications Corp.

O R D E R

In her amended complaint, Karen Cook alleges that she was

wrongfully terminated by CTC Communications Corp. (“CTC”) in

violation of New Hampshire law (Count I), and that she was

discharged in retaliation for raising concerns that CTC was not

in compliance with the Uniformed Services Employment and

Reemployment Rights Act (“USERRA”)(Count II), the Fair Labor

Standards Act (“FLSA”)(Count III), and the Family and Medical

Leave Act (“FMLA”)(Count IV). CTC has moved for summary judgment

on all of Cook’s claims. Cook objects to summary judgment. CTC

filed a reply.

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Standard of Review

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). On a motion for summary judgment, the moving party has

the burden of showing the absence of any genuine issue of

material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). If the movant does so, the court must then determine

whether the non-moving party has demonstrated a triable issue. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). In

ruling on a motion for summary judgment, the court must view the

facts in the light most favorable to the non-moving party,

drawing all reasonable inferences in that party’s favor. E.g.,

J.G.M.C.J. Corp. v. Sears, Roebuck & Co., 391 F.3d 364, 368 (1st

Cir. 2004); Poulis-Minott v. Smith, 388 F.3d 354, 361 (1st Cir.

2004).

Background

 In May 2005, CTC acquired Lightship Telecom, which resulted

in the addition of more than two hundred employees. Lightship

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used different payroll and benefits systems causing the

integration of the two companies to be slow. To help ease the

transition, CTC hired Cook as a human resources manager on July

29, 2005.

Cook was based in CTC’s branch office in Bedford, New

Hampshire. She reported to the Vice President of Human

Resources, Tracy Bradstreet. Her territory included former

Lightship locations throughout New England. Cook’s job

responsibilities included assisting employees and managers with

issues concerning benefits and compensation. One of her duties

was to ensure that CTC complied with employment laws. Cook

interacted frequently with all of the members of the CTC human

resources department, including Jawanna Benjamin, who began her

employment as a temporary employee before becoming a full time

employee responsible for CTC payroll. 

Because of the difficulties with the Lightship integration,

Cook faced a myriad of issues and problems within the human

resources department. She brought many of her concerns to the

attention of Bradstreet. 

In August of 2005, Cook received a call from a manager in

Buffalo who wanted to terminate an employee, Craig Smith, because

he “had been out a couple of times . . . and he wasn’t able to

ramp up . . . and be able to deliver because he had . . . been

Case 1:06-cv-00058-JD Document 117 Filed 10/30/07 Page 3 of 36
1For all cites to the record, the court uses the exhibit

number referenced by the parties in their motion and objection. 

4

called out on military leave.” Cook Obj. to CTC Mot. Sum. J.

(“Cook Obj.”), Ex. 1, at 50.1 Cook told the manager that CTC

could not fire Smith because he was protected under USERRA. The

manager responded that Bradstreet had already approved the

termination. Cook told the manager to wait and that Cook would

speak with Bradstreet. 

Cook spoke with Bradstreet, telling her that the employee

was protected under USERRA. According to Cook, “[Bradstreet]

became very angry with me,” at which point Cook told her that “we

can’t go forward with this.” Id. at 51. Bradstreet reviewed the

USERRA issue and decided that Smith was indeed protected. 

Bradstreet told Cook to tell the manager to move forward in an

“appropriate way.” Id. 

Cook told the manager that Smith was protected by USERRA. 

The manager responded that Bradstreet already had spoken with

her, telling her that “she didn’t know what she was thinking, yes

[Smith] is protected by USERRA but that she talked with outside

legal counsel and they had said that there’s probably some

loopholes that we can find and if there were some performancerelated issues and . . . but that [Bradstreet] was going to dig

into that some more and get back to [the manager].” Id. at 52. 

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Cook told the manager that in her opinion, there were no

performance issues but that Smith’s military leave had caused him

“to never really be able to get the traction he needed” upon his

return. Id. The manager agreed with Cook’s assessment but was

concerned about meeting quotas and “making the numbers” and asked

for temporary help, which Cook told her was possible. Id. Smith

was not terminated. 

According to Cook, after her initial discussion with

Bradstreet about whether to fire Smith, they discussed this

employee at least two more times. During these conversations,

Bradstreet directed Cook “to fish for reasons to terminate”

Smith. Id. at 56. Cook refused. 

Bradstreet has a different recollection of the conversations

concerning Smith and the reason for his possible termination. In

July of 2005, the manager from Buffalo had expressed concern to

Bradstreet that Smith had performance issues prior to his

military leave, and that Smith was using his leave as a shield to

“avoid actions the company might take.” Cook Obj., Ex. 2, at

173. In August, the problem was still “hanging,” and Bradstreet

handed it over to Cook. Id. After Cook spoke with the manager,

Cook came to Bradstreet with a different version of events and

Bradstreet was “befuddled . . . how we [could both] have such a

different interpretation of what had taken place.” Id. at 173-

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174. Bradstreet’s assessment of Smith was that he had

performance issues and told Cook to go back to the manager to

research this issue. Cook became upset and said “this is

breaking the law. You can’t let someone go if they’re returning

from military leave.” Id. at 174. Bradstreet told Cook to go

back and have another conversation with the manager to make sure

Cook had all of the facts because Bradstreet had a very different

understanding as to why Smith should be terminated. Cook refused

with a “defensive response” saying, “I won’t support this, I’m

not going to go along with this, this is illegal.” Id. at 185. 

Bradstreet told her, “look just go back to [the manager] and you

guys work it out and come up with something that’s acceptable,

but make sure you’ve covered the ground on performance . . . and

get [Smith] on a program so that he can improve his performance.” 

Id. According to Bradstreet, Cook and Bradstreet did not discuss

Smith again. 

Cook also raised concerns with Bradstreet as to whether

certain employees were exempt from the requirements of FLSA. On

August 30, 2005, Cook emailed Bradstreet and asked “[a]re the

Service Delivery Representatives . . . exempt or non-exempt

positions?” Cook Obj., Ex. 1 at Ex. 3 to Cook’s Deposition. 

Bradstreet replied, “right now they are exempt. [A]t some future

point we need to complete an FLSA audit to assure ourselves they

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are properly classified.” Id. Based on this email exchange,

Cook questioned whether CTC was in compliance with FLSA and

called the Department of Labor hotline for guidance. Cook

concluded that Bradstreet’s instructions were incorrect and

refused to implement Bradstreet’s direction regarding the

exemption classification because “it was against the law.” Cook

Obj., Ex. 1, at 100. According to Cook, Bradstreet was angry

with her for raising these concerns.

 Cook also discussed FMLA compliance issues with Bradstreet. 

In August of 2005, Cook spoke with Bradstreet about the impending

termination of an employee named Lisa Mayo. Bradstreet told Cook

that Mayo was out on FMLA leave but had performance problems

prior to going out on leave. Bradstreet told Cook that she

planned to backdate Mayo’s termination letter to the end of

Mayo’s FMLA leave. Cook was not “comfortable with making a

termination retroactive and handling [it] that way.” Id. at 79. 

Once Bradstreet decided that she wanted to fire Mayo, she told

Benjamin, who, at that time, was only a contract payroll

specialist and not a full time employee at CTC, to sign Mayo’s

termination letter. Cook “thought it was odd that a

nonrepresentative, a contractor [sic] would be asked to sign a

termination letter to an employee.” Id. at 83. After Mayo

retained an attorney, Bradstreet told Cook that she had

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instructed the managers to tell Mayo’s lawyers that Mayo’s

replacement was a “transitional hybrid and that [CTC] didn’t

already replace [Mayo] and to be sure they [the managers]

understood that.” Id. at 84. Cook “listened, but . . . really

didn’t make comment to [Bradstreet] one way or the other.” Id.

Cook believed that Bradstreet “was coaching the managers on what

to say.” Id. at 85. Cook was not asked about Mayo again.

In addition to Mayo, Cook disagreed with a manager’s

decision to terminate an employee named John Torkelson who was on

FMLA leave. Cook told the manager that she would not falsify

reasons for Torkelson’s termination. Cook testified that she did

not discuss Torkelson with any one else besides the manager. 

Torkelson was not terminated. 

In September of 2005, Cook complained to Ray Allieri, the

CEO of CTC, about Bradstreet, and at the same time, expressed

concern that CTC was violating various employment laws. 

Specifically, in a September 21, 2005, telephone call with

Allieri, Cook told Allieri that the company was being exposed to

liability and that she was being “asked to do things that . . .

[she] felt that [she] had a professional and ethical obligation .

. . to alert him and to share that information with him.” Id.

at 110. Cook told Allieri about problems with wage and hour

compliance. When Cook was asked at her deposition to specify

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which wage and hour compliance issues she raised with Allieri,

and whether she was referring to exempt versus nonexempt

classifications, Cook responded that “there were [sic] that, but

then there were issues with people not receiving their overtime

pay and their on-call pay.” Cook Obj., Ex. 1, at 111. 

At Allieri’s deposition, he testified that he kept notes in

his daily planner concerning the September 21, 2005, conversation

with Cook. In his notes, Allieri wrote that Cook raised issues

related to COBRA notices, 401K, short-term disability, and

terminations. As to the terminations, his notes include a

reference that Cook complained that certain terminated employees

did not receive “process.” Cook Obj., Ex. 6, at 50. 

On September 26, 2005, Cook and Allieri met in person. Cook

represents that during this meeting, they discussed many issues

in the human resources department, including Cook’s concern that

Bradstreet’s actions were violating USERRA. Specifically, Cook

told Allieri that she did not feel comfortable with Bradstreet’s

instruction to “sneak around” to find performance issues about an

employee, Craig Smith, who had been out on protected military

leave. Cook Obj., Ex. 1, at 116. Cook and Allieri also

discussed Bradstreet’s tendency to become very angry and

contentious when she did not like the answers she was given.

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Allieri also kept notes from this September 26, 2005,

meeting. He wrote that Cook raised concerns related to: (1)

benefit eligibility, (2) 401K, (3) her disagreement with how CTC

was handling potential terminations of an employee on military

leave, (4) an employee who had not been properly paid, and (5)

Bradstreet’s negative reactions when confronted by Cook. Allieri

also testified that “it’s clear from the notes that [Cook] was

being asked to, so she says . . . to dig for performance issues,”

and that “she was not willing to do that digging.” Cook Obj.,

Ex. 6, at 68-69. Allieri also testified that Cook expressed a

concern that Bradstreet would retaliate and set Cook up to fail. 

On October 11, 2005, Cook called Allieri and told him that

conditions were deteriorating in the Bedford office, noting

problems with 401K, payroll, and benefits. In this conversation,

Cook also told Allieri that she believed she had a responsibility

to notify the Department of Labor and other governmental agencies

of legal violations if CTC had no intention of addressing the

issues. In November, Cook emailed Allieri twice, outlining

problems with payroll, 401K, Flexible Spending Account

deductions, and CTC’s failure to honor wage garnishments. In one

email, Cook wrote that she was very concerned that CTC was “in

violation of various regulations and was being exposed to

potential liability at the hands of various governmental

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agencies.” Cook Obj., Ex. 6, at Ex. 1 to Allieri Deposition

(November 3, 2005, email).

During the first few months of Cook’s employment at CTC,

Bradstreet questioned Cook’s performance, her willingness to

attend meetings away from the New Hampshire office, and her

refusal to travel to CTC sites in Maine, Vermont, New Hampshire,

Western Massachusetts, and New York. Bradstreet was particularly

unhappy with Cook’s perceived inability to work with others and

her “abrasive,” “rude,” “negative,” and “abusive” demeanor toward

her co-workers. CTC Mot. Sum. J., Ex. C, at 158-161. In

addition to Bradstreet, Benjamin complained about Cook. Benjamin

testified that Cook once cursed and yelled at her. Benjamin also

believed Cook was advocating for employees against the company. 

She testified that Cook was motivated by the best interests of

the employees and that “it seemed like any issue frustrated her,

it didn’t matter how small. . . . It didn’t matter what kind of

problem it was, they were all . . . life-changing events.” Cook

Obj., Ex. 4, at 132. 

In the middle of October of 2005, after a series of

complaints from employees in the human resources department, and

after several confrontations with Cook, Bradstreet approached

Allieri and told him that Cook had “gone local,” meaning “she was

not representing the needs of the corporation, she was more

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representing the needs of the local employees.” Cook Obj., Ex.

6, at 78. 

 After Bradstreet complained to Allieri about Cook, and

after Cook complained to Allieri about Bradstreet, Allieri asked

CTC’s in-house counsel, James Prenetta, to investigate. As a

result of his investigation, Prenetta recommended that Cook be

terminated because of her negative relationship with the other

employees in the human resources department. CTC fired

Bradstreet because of her poor performance on October 27, 2005,

but this decision was not announced until November 10, 2005. CTC

informed Cook that she was terminated on November 10, 2005. 

Discussion

Cook contends that the termination of her employment

violated the retaliation provisions of FLSA, FMLA, and USERRA and

that she was wrongfully terminated in violation of New Hampshire

law. CTC moves for summary judgment on the ground that the

undisputed evidence does not support Cook’s claims. 

A. Retaliation under FLSA

Cook contends that CTC terminated her employment in

retaliation for issues and concerns she raised about CTC's

compliance with FLSA. CTC asserts that Cook cannot prove her

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2See Desert Palace, Inc. v. Costa, 539 U.S. 90, 93

(2003)(explaining mixed motive in Title VII case).

3Cases decided under Title VII are instructive in deciding

FLSA cases. Serapion v. Martinez, 119 F.3d 982, 985 (1st Cir.

1997). Other courts have used the McDonnell Douglas framework in

deciding retaliation claims under FLSA. Kanida v. Gulf Coast

Med. Pers. LP, 363 F.3d 568, 577 (5th Cir. 2004); Dennett v. Anne

Arundel County 213 F.3d 631, 631 (4th Cir. 2000) (per curiam);

Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1394 (10th Cir.

1997); Brock v. Casey Truck Sales, Inc., 839 F.2d 872, 876 (2nd

Cir. 1988); Cheng v. IDEAssociates, Inc., 2000 WL 1029219, at *5

(D.Mass July 6, 2000). 

13

retaliation claim because her job, as a human resources manager,

required her to raise compliance issues. CTC also asserts that

Cook cannot show that her protected activity played any part in

Allieri’s decision to terminate her. 

To prove a retaliation claim under FLSA, the plaintiff must

establish "(1) [he] engaged in statutorily protected activity,

(2) his employer thereafter subjected him to an adverse

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

protected activity." Blackie v. State of Maine, 75 F.3d 716, 722

(1st Cir. 1996). When neither party asserts a mixed motive2,

“the McDonnell Douglas burden-shifting framework is used to

allocate and order the burdens of producing evidence.” Fennell

v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996)

(applying McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803

(1973) burden shift to Title VII retaliation claim).3 “Once a

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prima facie showing has been made, the burden shifts to the

defendant to articulate a legitimate, non-retaliatory reason for

its employment decision.” Fennell, 83 F.3d at 535; Bishop v.

Bell Atl. Corp., 299 F.3d 53, 58 (1st Cir. 2002). If the

defendant meets its burden, “the ultimate burden falls on the

plaintiff to show that the proffered legitimate reason is in fact

a pretext and that the job action was the result of the

defendant's retaliatory animus.” Id. 

1. Protected Activity

Cook argues that she engaged in protected conduct when she:

(1) informed Allieri that CTC was violating FLSA for incorrectly

classifying employees and for failing to properly pay employees

for overtime, (2) warned Allieri that she would notify the

Department of Labor and other agencies that CTC was violating

FLSA, and (3) refused to follow Bradstreet’s instructions to

classify all the service delivery representatives as exempt from

FLSA’s overtime requirements. CTC argues that it was Cook’s job

to raise all of these issues and for this reason, she was not

protected under FLSA. 

For purposes of a retaliation claim under FLSA, to engage in

protected activity, the plaintiff must "step outside his or her

role of representing the company and file an action adverse to

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the employer, actively assist other employees in asserting FLSA

rights, or otherwise engage in activities that reasonably could

be perceived as directed towards the assertion of rights

protected by the FLSA." Claudio-Gotay v. Becton Dickinson

Caribe, Ltd, 375 F.3d 99, 102 (1st Cir. 2004) (internal quotation

marks omitted). "[T]he hallmark of protected activity under

[FLSA]" is asserting statutory rights "by taking some action

adverse to the company." Id. In order to be protected under 

FLSA, an employee must take an action beyond mere “abstract

grumblings.” Id. at 103 (quoting Valerio v. Putnam Assocs., 173

F.3d 35, 44 (1st Cir. 1999)). The requirement of “stepping

outside a normal role is satisfied by a showing that the employee

took some action against a . . . policy . . . and that the action

was based on a reasonable belief that the employer engaged in 

. . . conduct contrary to the FLSA.” Id. at 102; EEOC v. HBE

Corp., 135 F.3d 543, 554 (8th Cir. 1998) (plaintiff protected

when he refused to follow company policy that he reasonably

believed was illegal). 

Cook’s threat to Allieri that she had a responsibility to

call the Department of Labor and other governmental authorities

to report FLSA violations is evidence of acting outside the scope

of her duties. In addition, taking the facts in the light most

favorable to Cook, she has offered evidence that when she raised

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FLSA concerns to Bradstreet, she was advocating on behalf of

employees and not in furtherance of CTC’s goals. For example,

Bradstreet complained that Cook had “gone local” meaning “she was

not representing the needs of the corporation, she was more

representing the needs of the local employees.” Cook Obj., Ex.

6, at 78. Benjamin also believed Cook was advocating for

employees against the company. 

Cook also asserts that when Bradstreet directed her to

classify all service delivery representatives as exempt from FLSA

requirements, she was imposing a CTC policy that violated FLSA. 

Cook contends that when she refused to comply with that policy,

she was acting outside of her job duties. CTC contends that it

did not have such a policy, and if it did, that Cook did not defy

any order to classify employees as exempt because she made her

own classification decisions without input from Bradstreet. 

Taking the facts in the light most favorable to Cook,

however, Bradstreet’s email to Cook admits that some employees

may have been improperly classified as FLSA exempt. Cook

contends that she refused to follow Bradstreet’s instruction on

classifications because she believed they violated FLSA. As

such, Cook arguably refused to follow company policy she believed

was illegal, and a factual issue remains about whether Cook’s

activity was protected under FLSA.

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2. Causal Connection

CTC argues that Cook cannot establish a causal connection

between her termination and protected activities under FLSA

because Cook never explicitly told Allieri that she believed CTC

was violating the Act. CTC also maintains that it terminated

Cook for a legitimate reason - her inability to work with others.

Cook argues that she did tell Allieri about the statutory

violations and that she was fired soon after, which is evidence

of a causal connection. Cook also contends CTC’s stated reason

for her termination was a pretext.

To prove a FLSA retaliation claim, the plaintiff must

establish that she was terminated as a reprisal for having

engaged in the protected activity, that is, “that a causal

connection existed between the protected conduct and the adverse

action.” Blackie, 75 F.3d at 722. To establish this causal

connection, the plaintiff bears the burden of proving that the

protected activity was the “true reason or motive” for the

termination decision. Kearney v. Town of Wareham, 316 F.3d 18,

23 (1st Cir. 2002); see also Cheng v. IDEAssociates, Inc., 2000

WL 1029219, at *5 (D.Mass July 6, 2000). “[T]emporal proximity

of an employee's protected activity to an employer's adverse

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action” provides circumstantial evidence of retaliation. Mesnick

v. Gen. Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991); see also

Oliver v. Digital Equip. Corp., 846 F.2d 103, 110 (1st Cir. 1988)

(discharge soon after protected conduct is strongly suggestive of

retaliation); Cheng, 2000 WL 1029219, at *4 (“[A] showing of

adverse action soon after an employee engages in protected

activity [under FLSA] is evidence that there is a causal

connection between the adverse action and the protected

activity.”).

CTC argues that there is no causal connection here because

Cook did not tell Allieri that CTC was violating FLSA. The

record includes evidence, however, that Cook told Allieri about

wage and hour compliance issues, including FLSA exempt versus

nonexempt classifications, and that employees were not receiving

their overtime and on-call pay. At his deposition, Allieri

acknowledged speaking to Cook about FLSA compliance issues. 

Therefore, there is evidence that supports Cook’s claim that she

informed Allieri about FLSA violations.

CTC also asserts that Cook has produced no evidence that

Allieri retaliated against her for raising concerns. Cook was

terminated, however, within a month and a half of initially

telling Allieri about various compliance issues, including FLSA

concerns, and one week after her final email to Allieri that

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4In its memorandum of law in support of summary judgment,

CTC suggests additional reasons for Cook’s termination: her

refusal to attend off-site meetings in Waltham and her refusal to

visit other CTC sites away from her New Hampshire office. CTC

Mot. Summ. J. at 3. “[A]n employer's shifting explanations for

discharging an employee may themselves serve either to ground or

to reinforce a finding of pretext.” E.C. Waste, Inc. v. N.L.R.B.,

359 F.3d 36, 44 (1st Cir. 2004).

19

repeated her complaints. The close temporal proximity between

the protected activity and the termination is some evidence of a

causal connection.

CTC contends that Cook was fired for a legitimate reason

after Prenetta’s investigation: her inability to work with others

in the human resources department.4 Cook argues that CTC’s

stated reason for terminating her was a pretext, that Prenetta’s

investigation of her was inadequate, and that the investigation

was used to “suggest that Cook was creating a ‘hostile work

environment.’” Cook Obj. at 12. 

Prenetta testified that he was asked by Allieri to

investigate Cook, in part, because Bradstreet told Allieri that

Cook should be fired. Prenetta also testified that Allieri did

not share all of the details as to why Bradstreet wanted Cook

terminated. Prenetta did not interview Cook and did not consult

Cook’s personnel file in connection with his inquiry. In

conducting his investigation, Prenetta asked witnesses one

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question: “can you just describe for me, and explain to me, the

difficulties that you are having or the issues that you have with

[Cook.]” Cook Obj., Ex. 5, at 152. 

 Prenetta testified that the employees he interviewed,

including Dan Desmond and Jawanna Benjamin, complained about

Cook. As a result, he believed CTC would lose members of the

human resources department if Cook remained at CTC. Desmond

testified, however, that he had no problems with Cook and that he

never raised any complaints about her. Benjamin testified that

she never suggested to Prenetta that Cook was creating a hostile

environment or that she would resign if Cook remained at CTC. 

Taking the facts in the light most favorable to Cook, a jury

question remains as to whether CTC’s reason for terminating Cook

was a pretext. Cook offers evidence that Prenetta’s

investigation could be viewed as biased, that Bradstreet told

Allieri to fire Cook after Cook raised FLSA compliance issues,

and that Cook was terminated one week after raising FLSA concerns

with Allieri. The outcome of this case depends on CTC’s motive

and intent when it terminated Cook, “issues least suited for a

determination on a motion for summary judgment.” Ruffino v.

State Street Bank and Trust Co., 908 F. Supp. 1019, 1028 (D.Mass.

1995). The record shows sufficient dispute about the reasons for

Cook’s termination to avoid summary judgment on Cook’s claims

under FLSA.

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B. USERRA

Cook contends that Allieri terminated her employment because

she advocated for an employee's rights under USERRA. CTC

responds that Cook was not protected by USERRA because she was

acting in her capacity as a CTC human resources manager, because

CTC did not violate USERRA, and because the Act only protects

those who served in the military. CTC also argues that Cook

cannot show that a USERRA issue played any part in Allieri's

decision to terminate her employment.

 In pertinent part, USERRA "protects anyone who assists in

enforcing its provisions from employer retaliation." Pittman v.

Dep't of Justice, 486 F.3d 1276, 1284 n.2 (Fed. Cir. 2007); see

38 U.S.C. § 4311(b). An employee's informal and internal

complaints about USERRA violations may constitute enforcement of

rights under the Act. Gagnon v. Sprint Corp., 284 F.3d 839, 854-

55 (8th Cir. 2002) (abrogated on other grounds by Desert Palace

v. Costa, 539 U.S. 90 (2003)). An employer's action against an

employee is prohibited under USERRA if the employee's effort to

enforce a protection under the Act "is a motivating factor in the

employer's action, unless the employer can prove that the action

would have been taken in the absence of [the] enforcement

action." 38 U.S.C. § 4311(c)(2).

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1. Protected Activity

CTC contends that, as in the case of FLSA, USERRA only

protects activities that are taken outside of the scope of the

plaintiff's employment, but acknowledges that it found no cases

to support that theory. Cook, relying on Garcetti v. Ceballos,

126 S. Ct. 1951 (2006), argues that the scope of employment

limitation established in Claudio-Gotay does not apply to USERRA. 

In Garcetti, however, the Supreme Court considered the First

Amendment right of public employees to speak out on matters of

public concern and held "that when public employees make

statements pursuant to their official duties, the employees are

not speaking as citizens for First Amendment purposes, and the

Constitution does not insulate their communications from employer

discipline." Id. at 1960. As such, Garcetti does not support

Cook's theory but instead suggests that complaints made within an

employee's job cannot form the basis of a retaliation claim.

The reasoning in Claudio-Gotay is persuasive in the context of

USERRA, because it also applies in other employment retaliation

contexts. See id., 375 F.3d at 102 (citing EEOC v. HBE Corp.,

135 F.3d 543, 554 (8th Cir. 1998) (Title VII case)); see also Van

Portfliet v. H & R Block Mortgage Corp., 2007 WL 2773995 at *8

(M.D. Fla. Sept. 21, 2007) (Title VII); Johnson v. County of

Nassau, 480 F. Supp. 2d 581, 601 (E.D.N.Y. 2007); Vidal v.

Ramallo Bros. Printing, Inc., 380 F. Supp. 2d 60, 62 (D.P.R.

Case 1:06-cv-00058-JD Document 117 Filed 10/30/07 Page 22 of 36
23

2005). Therefore, to show she engaged in protected activity,

Cook must produce evidence that she acted outside her role as a

human resources manager when she advocated on behalf of an

employee's USERRA rights. 

Cook raised the issue of USERRA in the context of a branch

manager's question about terminating an employee, who had been on

military leave, for poor performance. Cook told Bradstreet that

the employee could not legally be terminated because of the

protections afforded him under USERRA. Cook stated that when she

raised the USERRA issue, Bradstreet became very angry but later

agreed that the employee was covered. Bradstreet then directed

Cook to dig for performance issues as a means of avoiding

USERRA's restrictions. 

Cook told Bradstreet that she believed digging for

performance issues concerning an employee who had been on

military leave was illegal and refused to follow Bradstreet’s

direction. Cook also complained to Allieri about Bradstreet’s

handling of the USERRA issue. Although CTC contends that

Bradstreet followed Cook's advice, Cook presents a different

version of events, which raises a factual dispute as to whether

she stepped outside her role as a human resources manager, by

refusing to follow Bradstreet's direction and advocating on

behalf of the employee against CTC.

Case 1:06-cv-00058-JD Document 117 Filed 10/30/07 Page 23 of 36
24

CTC also contends that Cook is not protected under USERRA

because the Act only protects military employees. 38 U.S.C. §

4311(b)(4) states that “the prohibition in this subsection shall

apply with respect to a person regardless of whether that person

has performed service in the uniformed services.” Therefore,

Cook's lack of military status does not affect her protection

under USERRA.

CTC further argues that Cook's claim is barred because CTC

did not violate USERRA. In other employment retaliation cases, a

plaintiff need not prove an underlying violation but only that

she had a reasonable and good faith belief that a violation of

the applicable statute occurred. See, e.g., Benoit v. Tech. Mfg.

Corp., 331 F.3d 166, 174-75 (1st Cir. 2003) (Title VII); Wright

v. CompUSA, Inc., 352 F.3d 472, 477 (1st Cir. 2003); Mesnick v.

Gen. Elec. Co., 950 F.2d 816, 827 (1st Cir. 1991) (ADEA). The

same rule applies here. Therefore, lack of evidence that CTC

violated USERRA does not defeat Cook's retaliation claim.

2. Motivating Factor

CTC argues that Cook cannot establish that she was

terminated because of the USERRA issue. To prove her claim, Cook

must show that her action in support of the other employee's

USERRA rights was a substantial or motivating factor in CTC's

decision to terminate her. 38 U.S.C. § 4311(c)(2); see

Case 1:06-cv-00058-JD Document 117 Filed 10/30/07 Page 24 of 36
25

Velazquez-Garcia v. Horizon Lines Of Puerto Rico, Inc., 473 F.3d

11, 17 (1st Cir. 2007) (construing same language in §

4311(c)(1)). If Cook makes that showing, CTC must prove, by a

preponderance of the evidence, that she would have been

terminated despite her advocacy. Id.

Cook's evidence that the USERRA issue was a motivating or

substantial factor in the decision to terminate her is weak, at

best. She relies on the temporal proximity between her complaint

to Allieri, which she asserts included a discussion of the USERRA

dispute with Bradstreet, and the decision to terminate her

employment. She also raises suspicions about the validity of

Prenetta's investigation of the complaints about her. Taken in

the light most favorable to her, Cook's evidence could show a

dispute as to whether her complaint about the USERRA issue was a

motivating factor.

Because CTC is both the moving party and the party with the

burden of proving that Cook would have been terminated despite

her complaint about the USERRA issue, it must carry its burden of

proof with conclusive evidence. See EEOC v. Union Independiente

de la Autoridad de Acueductos y Ancantarillados de P.R., 279 F.3d

49, 55 (1st Cir. 2002). While the question is close, the

evidence that CTC terminated Cook for legitimate reasons, taken

in the light most favorable to her, is not sufficient to support

summary judgment.

Case 1:06-cv-00058-JD Document 117 Filed 10/30/07 Page 25 of 36
26

C. FMLA

 Cook contends that Allieri terminated her employment because

she advocated for employees’ rights under FMLA. CTC responds

that Cook was not protected by FMLA because Cook never took an

action that was adverse to the company and because she was acting

in her capacity as a human resources manager. 

 CTC contends that, as in the case of FLSA and USERRA, FMLA

only protects activities that are taken outside of the scope of

the plaintiff's employment, but acknowledges that it found no

cases to support that theory. CTC argues that the logic

underlying Claudio-Gotay applies to a FMLA retaliation claim and

cites Richmond v. Oneok, Inc., 120 F.3d 205 (10th Cir. 1997), to

show that the requirements for a prima facie claim of retaliation

is the same for FLSA and FMLA. Cook contends, correctly, that

Oneok does not address the scope of employment issue, but offers

no case suggesting that Claudio-Gotay’s scope of employment

analysis should not apply to FMLA retaliation claims.

In cases of Title VII and FLSA retaliation, the plaintiff’s

activity is protected only if she was acting outside the scope of

her employment. Claudio-Gotay, 375 F.3d 102. The retaliation

provision in FMLA is the same as in Title VII, protecting those

employees who oppose any practice under each statute. The

similarity of the language used in Title VII and FMLA supports a

Case 1:06-cv-00058-JD Document 117 Filed 10/30/07 Page 26 of 36
27

conclusion that the adverse action requirement, as used in

Claudio-Gotay, applies to a FMLA retaliation claim. 

CTC argues that Cook did not take action adverse to her

employer as to FMLA because she merely questioned Bradstreet

about a potential FMLA termination, disagreed with a manager’s

rationale for firing an employee named John Torkelson, and never

discussed FMLA violations with Allieri. Cook argues that even if

FLSA’s scope of employment analysis applies to FMLA, Cook was

protected because when she refused to falsify reasons for

Torkelson’s termination, she stepped outside her normal role. 

Cook also contends that she was protected because she opposed

Bradstreet’s termination of another employee, Lisa Mayo, who was

out on FMLA leave, and because Cook raised her belief of unlawful

and unethical terminations to Allieri.

Taking the facts in the light most favorable to Cook, she

raised a concern with Bradstreet about her decision to backdate

Mayo’s termination letter because Cook believed this action was

illegal. Cook admits she never actively refused to follow

Bradstreet’s instructions. Instead, Cook “listened, but . . .

really didn’t make comment to [Bradstreet] one way or the other.” 

Cook Obj., Ex. 1, at 85. In addition, as to Torkelson, Cook

admitted that she only communicated with the manager and no one

else. She never complained to Allieri about Bradstreet’s

handling of the Mayo matter or about the manager’s actions

Case 1:06-cv-00058-JD Document 117 Filed 10/30/07 Page 27 of 36
28

related to Torkelson. Cook spoke to Allieri only generally about

unlawful terminations. Therefore, Cook cannot show that she

“stepp[ed] outside a normal role . . . by t[aking] some action

against a . . . policy” that she reasonably believed violated

FMLA. Claudio-Gotay, 375 F.3d at 102. Her conversations with

Bradstreet and Allieri do not rise above “abstract grumblings,”

and thus, Cook has failed as a matter of law to show that she

took action adverse to the company to support her FMLA claims. 

See id. at 103. Therefore, summary judgment is proper for Cook’s

FMLA retaliation claim. 

D. Reasonable Belief

CTC argues that Cook cannot establish her retaliation claims

because she has not demonstrated that when she raised concerns to

Allieri, she had a reasonable belief that CTC had violated the

law. CTC contends that Cook’s belief was unreasonable because

the conduct she opposed was not illegal, and as a human resources

professional, she would have known that the company had not

violated the law. 

The FLSA retaliation provision has been interpreted to

require that an employee has a reasonable belief that the

employer engaged in conduct that violated FLSA. Claudio-Gotay,

375 F.3d at 102. There is no case law interpreting USERRA in

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5CTC also argues that Cook cannot maintain a retaliation

claim because the actions that Cook complains about are not

required by statute. CTC is merely restating the same argument

that Cook cannot state a retaliation claim because CTC never

violated the law. As described, Cook’s belief must only be

reasonable and her retaliation claims can survive even if CTC’s

conduct that she complained about was not illegal.

29

this regard, but the parties have offered no argument to suggest

that USERRA should be interpreted differently. 

 CTC argues that Cook’s belief cannot be reasonable because

the conduct she complained of was not illegal, which Cook should

have known based on her training and expertise as a human

resources manager.5 As evidence that her belief was

unreasonable, CTC points to the fact that Cook never

misclassified any employees under FLSA and was not aware that any

employee did not receive required overtime. Similarly, CTC

argues that the USERRA-protected employee that Cook complained

about was never fired. Cook testified, however, that she

believed that CTC was violating FLSA because employees were not

getting paid overtime and because of Bradstreet’s instruction to

classify all service delivery representatives as FLSA exempt. 

Cook also testified that she believed that Bradstreet’s

instructions to dig for performance issues about an employee on a

military leave violated USERRA. She told Allieri about her

concerns.

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30

 Besides Cook’s subjective belief, Cook has offered an email

indicating that Bradstreet believed that some employees may have

been improperly classified as exempt under FLSA. Cook called the

Department of Labor hotline and confirmed that Bradstreet’s

classification was not correct. In addition, Bradstreet’s order

to dig for performance issues about an employee on military leave

could be objectively construed as a pretext to justify firing a

USERRA-protected employee. Cook has raised a factual issue about

whether she reasonably believed CTC was violating FLSA and

USERRA. 

E. Reasonableness of Cook’s Complaints

CTC argues that Cook cannot establish a statutory

retaliation claim because she raised her complaints in an abusive

and hostile manner. To be protected by the retaliation

provisions of FLSA and USERRA, an employee must raise complaints

in a reasonable and non-disruptive fashion. See Hochstadt v.

Worcester Found. for Experimental Biology, 545 F.2d 222, 231 (1st

Cir. 1976); Velez v. Jansenn Ortho LLC, 389 F. Supp. 2d 253,

260-261 (D.P.R. 2005) (“the manner in which the employee chooses

to oppose an unlawful employment practice must be reasonable and

not disruptive”). “Some conduct, even if in sincere opposition

to unlawful employment practices under Title VII, may be so

disruptive or inappropriate as to fall outside [its]

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31

protections.” Jones v. Flagship Intern., 793 F.2d 714, 728 (5th

Cir. 1986); see also Burns v. Blackhawk Mgmt. Corp., 494 F. Supp.

2d 427, 433 (S.D.Miss. 2007)(assessing reasonableness of

complaints under FLSA).

Here, there is no dispute that Cook’s conversations with

Allieri, at least, were civil. There are disputed facts as to

the circumstances surrounding Cook’s interactions with

Bradstreet. Cook’s alleged hostile relationship with her coworkers in the human resources department is irrelevant to

whether Cook raised her complaints to Allieri and Bradstreet in a

reasonable fashion. See Hochstadt, 545 F.2d at 231; Velez, 389

F. Supp. 2d at 260-261. 

F. Wrongful Termination

In order to prevail on a wrongful termination claim under

New Hampshire law, a plaintiff must establish two elements: one,

“that the employer terminated the employment out of bad faith,

malice, or retaliation; and two, that . . . the employment [was

terminated] because the employee performed acts which public

policy would encourage or . . . refused to perform acts which

public policy would condemn.” Lacassse v. Spaulding Youth Ctr.,

154 N.H. 246, 248 (2006). 

CTC argues that Cook cannot establish the public policy

element of her wrongful termination claim because: (1) it was

Case 1:06-cv-00058-JD Document 117 Filed 10/30/07 Page 31 of 36
32

part of Cook’s job responsibilities to bring employment-related

concerns to Bradstreet and Allieri; (2) Cook merely disagreed

with the internal policies set by her supervisor; and (3) the 

public policies that Cook relies on to support her wrongful

termination claim have statutory remedies and thus are preempted

by federal statutes. In addition, CTC argues that Cook cannot

show a causal connection between her protected activity and her

termination.

1. Public Policy

Public policy for purposes of a wrongful discharge claim may

be based on statutory or non-statutory policies. Cilley v. N.H.

Ball Bearings, Inc., 128 N.H. 401, 406 (1986). A plaintiff may

not, however, rely on a statutory policy if the legislature

clearly intended to replace the common law remedy of wrongful

discharge with a statutory remedy. Wenners v. Great St.

Beverages, Inc., 140 N.H. 100, 103 (1995). Whether an employee's

actions were protected by public policy is a factual issue. 

Cloutier v. Great Alt. & Pac. Tea Co., Inc., 121 N.H. 915, 924

(1981). 

a. Part of her job.

CTC contends that an employee who is cooperating with her

employer and doing her job is not engaging in activities that

Case 1:06-cv-00058-JD Document 117 Filed 10/30/07 Page 32 of 36
33

public policy would encourage because such actions are merely

routine. Instead, CTC argues, Cook must show that she was

engaging in activities that were intended to be for the public

good, were against her employer's wishes, and revealed previously

unknown issues. CTC acknowledges that it has found no New

Hampshire cases that require a plaintiff to show that her actions

were taken outside of the scope of her employment but urges that

theory nevertheless.

New Hampshire cases suggest that a wrongful discharge claim

need not be based on actions taken outside the scope of

employment. In Short v. Sch. Admin. Unit No. 16, 136 N.H. 76, 85

(1992), the plaintiff asserted that he was fired for refusing to

publicly criticize his supervisor. Without indicating that

activities supported by public policy must be outside of the

plaintiff's scope of employment, the New Hampshire Supreme Court

held only that public policy does not support loyalty to a

supervisor that contravenes loyalty to the employer. Id. In

Cloutier, the plaintiff, the manager of an A&P, claimed that he

was fired because he refused to have his assistant manager

deliver cash from the grocery store to the bank without police

protection, which was necessary for his safety. 121 N.H. at 923. 

The court held that his action was one that public policy would

encourage, although it was part of his job. Id.

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34

In addition, Cook does not base her wrongful discharge claim

on "disclosures" of unknown problems as in Daly v. Univ. of N.H.,

2001 WL 1326585 (D.N.H. Sept. 19, 2001), which CTC cites. 

Instead, Cook asserts that she was discharged because she opposed

certain practices in the human resources department which she

believed violated federal laws and because she threatened to

report violations to the Department of Labor and other agencies. 

Cook notes that Bradstreet thought she was advocating for the

rights of individual employees instead of promoting CTC's

interests. As such, Cook has raised a factual issue about

whether she was terminated because she engaged in an activity

that public policy would encourage. 

b. Internal not public policy.

CTC also contends that Cook's complaints about Bradstreet

were aimed at internal policies not public policy. CTC relies on

Bourque v. Town of Bow, 736 F. Supp. 398, 402-03 (D.N.H. 1990),

which held that an employee's complaints against his supervisor

raised a managerial issue, not a matter of public policy. In

this case, however, Cook contends she was terminated for raising

issues and concerns about actions that she believed violated

federal laws, not because she complained about Bradstreet’s

management. Cf. Short, 136 N.H. at 86 ("[A]n employee's

expression of disagreement with a management decision is not an

Case 1:06-cv-00058-JD Document 117 Filed 10/30/07 Page 34 of 36
35

act protected by public policy."). A factual issue remains as to

the reasons for Cook's termination.

c. Statutory remedy.

CTC argues that Cook's wrongful discharge claim is preempted

by remedies available under Massachusetts General Laws chapters

148 and 149, the Employee Retirement and Income Security Act, the

FLSA, the FMLA, and the USERRA. CTC provides no developed

preemption analysis to support that theory, which is required to

successfully show that a wrongful discharge claim is barred by

another remedy. Scannell v. Sears Roebuck & Co., 2006 WL 2570601

at *3 (D.N.H. Sept. 6, 2006) (citing Bliss v. Stow Mills, Inc.,

146 N.H. 550, 553-54 (2001)). Therefore, that defense is deemed

to be waived. United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990).

2. Retaliation

CTC also contends that Cook cannot prove that she was

terminated in retaliation for protected conduct. As is more

fully discussed in the context of Cook's federal claims, factual

issues remain as to whether CTC terminated her because of the

issues and concerns she raised or because she could not get along

with her fellow employees.

Case 1:06-cv-00058-JD Document 117 Filed 10/30/07 Page 35 of 36
36

 Conclusion

For the foregoing reasons, the defendant's motion for

summary judgment (doc. no. 47) is granted as to the plaintiff's

claim of retaliation under the FMLA (Count IV) and is otherwise

denied. In light of this ruling, counsel and the parties should

step back, make an objective evaluation of their cases, and

undertake good faith efforts to resolve this matter by agreement

before additional resources are expended on a lengthy trial. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

October 30, 2007

cc: Heather M. Burns, Esquire

Samantha C. Halem, Esquire

Lauren S. Irwin, Esquire

Mary L. Marshall, Esquire

Case 1:06-cv-00058-JD Document 117 Filed 10/30/07 Page 36 of 36