JOHN A. WOODCOCK, JR., District Judge.
Two former employees allege that their state-agency employer harassed, discriminated, and retaliated against them in violation of the Maine Whistleblowers' Protection Act, Title VII, and the Maine Human Rights Act. Concluding that there are genuine issues of material fact regarding the claims of retaliation under the Maine Whistleblowers' Protection Act, Title VII and the Maine Human Rights Act and regarding the hostile work environment claims under Title VII and the Maine Human Rights Act, the Court denies the state agency's motion for summary judgment on those claims, but the Court grants summary judgment on the disparate treatment theory underlying the Title VII and Maine Human Rights Act sex discrimination claims.
On February 23, 2017, Kayla Marie Cole and Teresa L. Gordon filed suit in this Court against the state of Maine Office of Information Technology (OIT), alleging that the OIT, their former employer, violated the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq, (Title VII), the Maine Human Rights Act, 5 M.R.S. §§ 4551 et seq. (MHRA), and the Maine Whistleblowers' Protection Act, 26 M.R.S. §§ 831, et seq. (WPA). Compl. (ECF No. 1). OIT answered the Complaint on May 19, 2017, denying its essential allegations and raising affirmative defenses. Answer to Compl. (ECF No. 5). On August 11, 2017, OIT filed an Amended Answer. Am. Answer to Compl. (ECF No. 11).
On December 21, 2017, OIT filed a motion for summary judgment and a statement of material facts Def.'s Redacted Mot. for Summ. J. (ECF No. 27) (Def.'s Mot.); Def.'s Redacted Statement of Fact (ECF No. 28) (DSMF). On February 9, 2018, Ms. Cole and Ms. Gordon filed a response, opposing the motion, together with an opposing statement of material facts with a statement of additional material facts. Pls.' Resp. to Def.'s Mot. for Summ. J. (ECF No. 38) (Pls.' Resp.); Pls.' Opposing Statement of Material Fact and Additional Facts (ECF No. 39) (PRDSMF; PSAMF). On March 7, 2018, OIT filed a reply to the Plaintiffs' response with a reply to Plaintiffs' statement of material facts. Def.'s Reply to Resp. to Def.'s Mot. for Summ. J. (ECF No. 42) (Def.'s Reply); Def.'s Reply to Additional Statement of Facts (ECF No. 43) (DRPSAMF).
OIT employed Kayla Cole first as a Business Analyst, and later as a Project Manager in its Project Management Office (PMO). DSMF ¶ 1; PRDSMF ¶ 1. OIT also employed Teresa Gordon as a Business Analyst, where she performed all duties of the position, including administrative duties for the then-Director of the PMO (Male Employee).
OIT employed Joshua Karstens during this time, but before September 29, 2014, he worked as a project manager, and neither Ms. Gordon nor Ms. Cole reported to him as their supervisor. DSMF ¶ 3; PRDSMF ¶ 3. Between September 29, 2014, and October 8, 2015, Mr. Karstens became the Agile Program Manager in the PMO. DSMF ¶ 4; PRDSMF ¶ 4. During that time, Mr. Karstens was Ms. Cole's direct supervisor and completed her performance evaluations. DSMF ¶ 5; PRDSMF ¶ 5. Over the same period, both Ms. Gordon and Mr. Karstens reported to Male Employee.
In a performance evaluation for the period September 2, 2014 to February 8, 2015, Mr. Karstens gave Ms. Cole an overall performance rating of "outstanding." DSMF ¶ 7; PRDSMF ¶ 7. On November 4, 2014, Ms. Cole emailed Mr. Karstens, informing him that she felt disrespected by an Instant Message he had sent and his statement that she was "just as smart" as a male colleague, and in response, Mr. Karstens stated that he thought Ms. Cole was the top performer on the team.
On October 8, 2015, OIT promoted Mr. Karstens to the position of Director of the Business Process Management Office (BPM). DSMF ¶ 13; PRDSMF ¶ 13. Between October 8, 2015, and February 16, 2016, Male Employee and Mr. Karstens were peers, and both Ms. Gordon and Ms. Cole reported directly to Male Employee. DSMF ¶ 14; PRDSMF ¶ 14.
Effective September 1, 2015, Ms. Gordon and Male Employee were also partners in their own business called Agile Wave. DSMF ¶ 65; PRDSMF ¶ 65. Between May and October 2016, Ms. Cole performed work for Agile Wave. DSMF ¶ 66; PRDSMF ¶ 66. On September 3, 2015, Ms. Gordon told Mr. Karstens that she and Male Employee were planning to leave OIT to start their own business. DSMF ¶ 15; PRDSMF ¶ 15. Ms. Gordon also told Mr. Karstens that she and Male Employee could not leave without him, and that once the venture was underway, Mr. Karstens would have a position at Agile Wave. DSMF ¶ 16; PRDSMF ¶ 16. However, Mr. Karstens declined the offer to join Ms. Gordon and Male Employee in their proposed business venture. DSMF ¶ 17; PRDSMF ¶ 17. As evidenced by these interactions, Ms. Gordon did not have an issue with Mr. Karstens until sometime after September 3, 2015. DSMF ¶ 18; PRDSMF ¶ 18.
The Pega Enterprise Agreement is an $8 million sole source contract negotiated "confidentially" by Jim Smith and Doug Averill.
When there is an extension amendment for an OIT contract for more than $10,000, it is treated like a sole source contract, and must be approved by the State Procurement Review Committee. Amendments in excess of $3 million must be reviewed by the Attorney General's office. PSAMF ¶ 159; DRPSAMF ¶ 159. The State Procurement Review Committee did not sign off on the Pega Enterprise Agreement. PSAMF ¶ 160; DRPSAMF ¶ 160. In Ms. Cole's and Ms. Gordon's view, the Pega Enterprise Agreement did not go through the proper procurement process and the circumstances surrounding it were inappropriate and unlawful.
On December 2, 2015, Ms. Cole attended an offsite holiday party at a bowling alley with a group of male and female coworkers, including Mr. Karstens. DSMF ¶ 19; PRDSMF ¶ 19. According to Ms. Cole, during the outing, Mr. Karstens was showing the group an x-ray of his knee because there was an item in between his legs showing up on the x-ray and he was telling people that is how big his penis was.
Male Employee left State employment on February 8, 2016. DSMF ¶ 27; PRDSMF ¶ 27. On February 16, 2016, Jim Smith sent a general announcement to OIT employees that Mr. Karstens had been asked to assume "management responsibility for both BPM and PMO; Ms. Gordon and Ms. Cole received this email on February 17, 2018.
On February 19, 2016, Mr. Karstens held his first staff meeting as the PMO Director, with approximately ten to fifteen people in attendance, both male and female, including Ms. Gordon and Ms. Cole. DSMF ¶ 32; PRDSMF ¶ 32. During the meeting, Mr. Karstens expressed concern about complaints he had received regarding unprofessional behavior within the group, including employees whispering and talking about each other. DSMF ¶ 34; PRDSMF ¶ 34. During the meeting, Mr. Karstens raised his voice and told the Plaintiffs that everyone would be held accountable.
Generally, OIT meetings attended by Ms. Cole with Mr. Karstens included three to twenty men and women. DSMF ¶ 145; PRDSMF ¶ 145. According to Ms. Cole, Mr. Karstens would get red in the face, raise his voice, and ball his fists at those meetings. DSMF ¶ 146; PRDSMF ¶ 146. According to Ms. Cole, Mr. Karstens directed his anger at everyone in the room. DSMF ¶ 147; PRDSMF ¶ 147. According to Ms. Cole, Mr. Karstens "called her out" and directed his criticism toward her during six or seven meetings occurring over the course of about six months. DSMF ¶ 148; PRDSMF ¶ 148.
On or about February 10, 2016, Ms. Gordon contacted OIT's Chief Technology Officer and expressed concerns about Mr. Karstens becoming Ms. Cole's supervisor following Male Employee's departure from OIT. DSMF ¶ 23; PRDSMF ¶ 23. The Chief Technology Officer advised Ms. Gordon to report her concerns to Human Resources. DSMF ¶ 24; PRDSMF ¶ 24. Ms. Gordon called Human Resources on or about February 11, 2016, and spoke with Human Resources Generalist Tammy Sturtevant. DSMF ¶ 25; PRDSMF ¶ 25. Ms. Gordon and Ms. Cole reported concerns about Mr. Karstens supervising them, and reported an incident that allegedly occurred after hours at a bar in Hallowell two years earlier involving Ms. Cole and Mr. Karstens. DSMF ¶ 26; PRDSMF ¶ 26.
Tammy Sturtevant's recorded recollection of her phone call with Terry Gordon on February 15 or 16, 2016 says that Ms. Gordon's voice was "shaky like she was upset" and that Ms. Gordon had a "very serious concern" about Mr. Karstens, how sexual gestures he made towards Ms. Cole in the past were affecting the work environment, and that Mr. Karstens was complaining about Ms. Cole's work and belittling her in meetings. PSAMF ¶ 162; DRPSAMF ¶ 162.
On February 17, 2016, Ms. Beaudoin informed Mr. Smith about "a sensitive matter" involving Mr. Karstens. PSAMF ¶ 163; DRPSAMF ¶ 163. On February 18, 2016 at 9:04 a.m., Ms. Gordon informed Mr. Karstens she was home sick. PSAMF ¶ 164; DRPSAMF ¶ 164. On that same day, Ms. Beaudoin spoke on the phone with Ms. Gordon. PSAMF ¶ 165; DRPSAMF ¶ 165. Ms. Beaudoin's notes include "she didn't report it in the first place because she thought she would be punished" and "bullying her" and "I'm nervous for her" and "he has a temper hit a table at one time." PSAMF ¶ 165; DRPSAMF ¶ 165. Ms. Beaudoin told Ms. Gordon not to go to work the next day.
On February 22, 2016, Ms. Gordon and Ms. Cole met with HR Director Beaudoin and reported the following issues regarding Mr. Karstens. DSMF ¶ 72; PRDSMF ¶ 72.
Ms. Cole also reported that she had taken pictures of Mr. Karstens posing at two events, which showed Mr. Karstens posing in a sexually suggestive manner.
Ms. Cole and Ms. Gordon reported that Mr. Karstens nominated Ms. Cole as Employee of the Month in September 2014 and had no issues with her performance then. DSMF ¶ 75; PRDSMF ¶ 75. Ms. Cole and Ms. Gordon reported that Ms. Cole was promoted to Project Manager in February 2015 and that Mr. Karstens stated that he was responsible for her promotion. DSMF ¶ 76; PRDSMF ¶ 76. They also reported that Mr. Karstens complained to Ms. Gordon about Ms. Cole's performance after Ms. Cole was promoted. DSMF ¶ 77; PRDSMF ¶ 77.
Ms. Cole and Ms. Gordon reported that in the summer of 2015, Mr. Karstens spoke with Ms. Cole about concerns that she was getting too friendly with a contractor. DSMF ¶ 78; PRDSMF ¶ 78. They further stated that in early September 2015, Mr. Karstens called Ms. Cole into a room and gave her a verbal warning for giving someone "attitude." DSMF ¶ 83; PRDSMF ¶ 83. Ms. Cole and Ms. Gordon reported that Mr. Karstens changed the project manager on one of the projects without discussing it with the team and put a project in "warning" status. DSMF ¶ 81; PRDSMF ¶ 81. They also reported that Ms. Cole and Ms. Perkins had had a disagreement, and Mr. Karstens was pushing Ms. Cole to have coffee with Ms. Perkins to "clear the air." DSMF ¶ 82; PRDSMF ¶ 82.
They also reported that Mr. Karstens would "drill" Ms. Cole with questions at meetings but did not "drill" other scrum masters. DSMF ¶ 84; PRDSMF ¶ 84. They reported that Mr. Karstens was angry because Ms. Cole came up with the right answers in meetings. DSMF ¶ 85; PRDSMF ¶ 85. The Plaintiffs further reported that Mr. Karstens raised his voice and clenched his fists in a meeting. DSMF ¶ 86; PRDSMF ¶ 86. They reported that Mr. Karstens would not make eye contact with Ms. Cole at meetings. DSMF ¶ 96; PRDSMF ¶ 96. They also reported that Ms. Gordon told Ms. Cole not to talk in meetings because she felt Mr. Karstens would get upset when Ms. Cole made suggestions. DSMF ¶ 87; PRDSMF ¶ 87.
Ms. Cole and Ms. Gordon reported that in contrast, Male Employee did not have any issues with Ms. Cole's performance at the time. DSMF ¶ 79; PRDSMF ¶ 79. Ms. Cole and Ms. Gordon reported that Ms. Gordon started writing emails on behalf of Ms. Cole because Ms. Cole could "do no right" in Mr. Karstens' eyes. DSMF ¶ 80; PRDSMF ¶ 80.
Ms. Cole and Ms. Gordon reported that in October 2015, Mr. Karstens asked Ms. Gordon if she wanted to go to Panera Bread for lunch with him. DSMF ¶ 88; PRDSMF ¶ 88. They reported that in December 2015, males and females from the OIT group, including Mr. Karstens, attended an off-site bowling event, during which Karstens made a joke about his penis to the group. DSMF ¶ 90; PRDSMF ¶ 90.
Ms. Cole and Ms. Gordon reported to Ms. Beaudoin that during a meeting of the OIT group on February 19, 2016, Mr. Karstens stated: "if you are going to be divisive, there is no place for you here." DSMF ¶ 91; PRDSMF ¶ 91. They also reported that during the meeting, Mr. Karstens said he was going to hold each person accountable. DSMF ¶ 92; PRDSMF ¶ 92. They reported that during the meeting, Mr. Karstens was upset and emotional. He "paced the room," was "red in the face," and clenched his fists. DSMF ¶ 93; PRDSMF ¶ 93. They reported that during the meeting, Mr. Karstens told everyone that they would start with a "clean slate." DSMF ¶ 94; PRDSMF ¶ 94.
Ms. Cole and Ms. Gordon also reported to Ms. Beaudoin that there was tension among the Project Management Office, the Business Process Management Office, and Applications Development. DSMF ¶ 95; PRDSMF ¶ 95. Ms. Cole and Ms. Gordon further reported that Mr. Karstens was trying to take away Ms. Cole's direct reports and move them to the BPM office. DSMF ¶ 98; PRDSMF ¶ 98.
Ms. Cole and Ms. Gordon reported another incident to Ms. Beaudoin on February 22, 2016. Ms. Beaudoin's notes from the meeting do not indicate the parties to whom each statement in her notes refers, but read: "sexual touch me—put hand the back of my pants. I tried to get away. Leaned in and hard on me . . . get a motel room. . . I said no, you're married three kids . . . he leaned on me. . . I said no . . . He was getting jealous . . . escalated . . . He kept drilling her . . . TG said you're clearly getting upset, red faced. JK raised his voice beet red clenching his fist . . . He didn't like the way we were moving forward. It was Kayla's idea he didn't like it. . . If KC said something he would get upset . . . paced the room red in the face clenching his fists. Shaking . . . He's aggressive—TG scared. He was angry. TG I think he is threatened by Kayla because she knows her stuff. He makes it a hostile environment. Concerned about retaliation. It's stressful. My heart starts to race. Pacing, red faced, clenching his fists."
On February 24, 2016, at a regularly scheduled one-on-one meeting, Mr. Smith informed Mr. Karstens of the complaints made against him by Ms. Gordon and Ms. Cole.
On February 19, 2016, Mr. Karstens sent an email to employees of the PMO, including to Ms. Cole and Ms. Gordon, summarizing the staff meeting and reminding them that Ms. Perkins would be their direct supervisor. DSMF ¶ 40; PRDSMF ¶ 40. Part of Ms. Perkins' responsibility as supervisor was to review the timesheets of her direct reports. DSMF ¶ 42; PRDSMF ¶ 42. Ms. Perkins also reviewed the electronic time and attendance records of those employees who had requested approval to take vacation time in the future to determine whether they had sufficient accrued time on the books. DSMF ¶ 45; PRDSMF ¶ 45. On February 17, 2016, Mr. Karstens advised administrative assistant Brenda M. of this change, and asked her to update the timesheet approval information for employees that Ms. Perkins would be supervising in the time and attendance system. Brenda M. completed this change on February 19, 2016. DSMF ¶ 41; PRDSMF ¶ 41.
Ms. Perkins was on vacation the week of February 15, 2016 and returned to the office on February 22, 2016. DSMF ¶ 43; PRDSMF ¶ 43. Upon returning to the office, Ms. Perkins reviewed for approval the timesheets submitted by Ms. Gordon and Ms. Cole for the payroll period ending February 27, 2016.
When Ms. Perkins reviewed Ms. Gordon's and Ms. Cole's timesheets, the time and attendance system displayed a warning that Ms. Gordon and Ms. Cole's vacation accruals were nearing the accrual limit, and that they would soon start losing vacation time. DSMF ¶ 50; PRDSMF ¶ 50. Ms. Perkins was concerned and puzzled about the "over-the-limit" accrual warning because she was aware that Ms. Gordon had recently taken a vacation. DSMF ¶ 51; PRDSMF ¶ 51. Mr. Karstens had previously approved Ms. Cole for a vacation in Mexico from February 22, 2018 through March 4, 2016. DSMF ¶ 52; PRDSMF ¶ 52. Ms. Perkins was aware that Ms. Cole had previously requested and been approved to take vacation during the week of February 22, 2016. DSMF ¶ 53; PRDSMF ¶ 53.
On February 22, 2016, Ms. Gordon's calendar showed Ms. Cole to be out on vacation but showed several meetings scheduled for Ms. Gordon.
Mr. Karstens contacted CIO Smith the morning of February 22, 2016, and he reported the concerns regarding the timesheets. DSMF ¶ 61; PRDSMF ¶ 61. Mr. Karstens and Sandy Saunders, the Director of Communications, then reviewed Ms. Gordon's and Ms. Cole's past calendars and emails.
Though Mr. Karstens also discovered that Ms. Gordon did not record vacation time on her timesheet for the payroll period ending January 2, 2016, Ms. Gordon worked on December 21 and 22, 2015, and attended a work holiday lunch on the December 22, 2015. DSMF ¶ 67; PRDSMF ¶ 67. Ms. Gordon took December 23, 2015 as a sick day, December 24, 2015 as Administrative Leave, and December 25, 2015 as Holiday Pay.
Mr. Karstens also discovered that in November 2015, Ms. Gordon wrote to Human Resources to request a waiver of maximum vacation accruals for her and for Ms. Cole, stating that she and Ms. Cole were working on high-profile Business Process Management projects, as well as assuming some additional job duties, and could not take vacation time until at least after the first of the year.
On February 23, 2016, Ms. Perkins contacted Ms. Beaudoin to schedule a meeting to discuss the timesheet and calendar discoveries involving Ms. Cole and Ms. Gordon. DSMF ¶ 101; PRDSMF ¶ 101. On February 24, 2016, Mr. Karstens, Ms. Perkins, and Ms. Saunders met with Ms. Beaudoin and presented the information they had discovered regarding Ms. Gordon's and Ms. Cole's timesheets and calendars. DSMF ¶ 102; PRDSMF ¶ 102.
On February 29, 2016, Ms. Gordon and Ms. Cole were each notified that they were being placed under investigation for (1) falsifying time and attendance for themselves and others; (2) providing false justification for waiving maximum vacation accrual limits; and (3) inappropriately using time and other State resources for personal business. DSMF ¶ 108; PRDSMF ¶ 108. Male Employee was not investigated because he was no longer employed by the State.
On February 22, Ms. Beaudoin told Mr. Smith she had spoken to Ms. Cole and "there is more to the story." PSAMF ¶ 167; DRPSAMF ¶ 167. On or about February 22, 2016, Mr. Smith authorized Mr. Karstens to lock the Plaintiffs out of the state computer system and collect evidence against them.
Between February 24 and February 25, 2016, OIT employee Mark T. told Ms. Beaudoin via email that Ms. Gordon is "not dramatic" and "not in her nature to be spooked" but that Mr. Karstens' behavior was causing her to be physically ill and that she was afraid to even see his truck.
On February 24, 2016, Mr. Smith told Ms. Shippee or Ms. Beaudoin that "based on the emails and calendar entries, it is time to talk to Joyce and Legal about a criminal investigation." PSAMF ¶ 177; DRPSAMF ¶ 177. On February 29, 2016 at 8:37 AM, Mr. Karstens told Ms. Beaudoin and Ms. Shippee "Cole is contacting staff to try to determine what is going on. You ok with me informing them that if she or Terry calls for them to just inform her to contact myself or Cassandra Perkins?" PSAMF ¶ 178; DRPSAMF ¶ 178. On February 29, 2016, at 9:27 a.m., Mr. Karstens told Ms. Beaudoin and Ms. Shippee that he received no requests from the Plaintiffs for time off on February 17 and February 18. PSAMF ¶ 179; DRPSAMF ¶ 179. On February 29, 2016, at 10:05 a.m., Ms. Gordon told Ms. Beaudoin, "my state email has been suspended I feel vulnerable and like I'm being retaliated against." PSAMF ¶ 180; DRPSAMF ¶ 180. On February 29, 2016, at 10:21 a.m., Ms. Shippee told Ms. Beaudoin that until the notice of investigation went out to Ms. Cole and Ms. Gordon, calls from Ms. Cole "can be referred to Josh."
On February 29, 2016, at 10:42 a.m., Ms. Beaudoin told Mr. Karstens, "I will be changing Terry's time once I get updated information from you. Is Kayla's time okay as reported?"
Ms. Cole was on medical leave from March 7, 2016, through June 17, 2016. DSMF ¶ 113; PRDSMF ¶ 113. Ms. Gordon was on medical leave from February 19, 2016 through June 19, 2016. DSMF ¶ 114; PRDSMF ¶ 114. Both Ms. Cole and Ms. Gordon were placed on paid administrative leave effective June 20, 2016. DSMF ¶ 115; PRDSMF ¶ 115. The State EEO Officer, Laurel Shippee, was assigned to conduct the investigation of the allegations against Ms. Gordon and Ms. Cole. DSMF ¶ 116; PRDSMF ¶ 116. Human Resources manager Doreen Brown was assigned to conduct the investigation of Ms. Cole's and Ms. Gordon's complaints against Mr. Karstens. DSMF ¶ 117; PRDSMF ¶ 117.
On March 23, 2016, Ms. Beaudoin wrote to Ms. Gordon and Ms. Cole and asked whether they would be willing to be interviewed while on medical leave regarding their complaints against Mr. Karstens. DSMF ¶ 118; PRDSMF ¶ 118. Ms. Gordon's and Ms. Cole's union representative advised Ms. Shippee that Ms. Gordon and Ms. Cole were unwilling to be interviewed while on medical leave regarding their complaints against Mr. Karstens.
Ms. Gordon and Ms. Cole filed a joint discrimination charge with the Maine Human Rights Commission on June 20, 2016. DSMF ¶ 120; PRDSMF ¶ 120. On June 21, 2016, Ms. Beaudoin wrote Ms. Gordon and Ms. Cole to schedule interviews with Ms. Brown and Ms. Shippee for June 27, 2016, regarding their complaints against Mr. Karstens. DSMF ¶ 123; PRDSMF ¶ 123. Ms. Gordon and Ms. Cole, through their attorney, declined to be interviewed regarding their complaints.
In conducting the investigations of Ms. Cole and Ms. Gordon, Ms. Shippee interviewed at least thirteen witnesses in addition to Ms. Cole and Ms. Gordon. DSMF ¶ 125; PRDSMF ¶ 125. CIO Jim Smith was not interviewed as part of the investigations of Ms. Cole or Ms. Gordon. DSMF ¶ 126; PRDSMF ¶ 126. Ms. Shippee completed the investigation of Ms. Gordon and issued a report on September 15, 2016, substantiating all three allegations against her. DSMF ¶ 127; PRDSMF ¶ 127. Ms. Shippee found Ms. Gordon's responses not credible during the investigation.
On June 21, 2016, Ms. Shippee told Mr. Smith that it was not appropriate for her to be communicating with Mr. Karstens about the investigation since he is a witness.
Ms. Shippee completed the investigation of Ms. Cole and issued a report on October 4, 2016, substantiating the allegations that Ms. Cole falsified time and attendance for others and inappropriately used time and other State resources for personal business.
Following the investigation, Mr. Smith recommended what level of discipline against Ms. Gordon and Ms. Cole was appropriate.
A Loudermill hearing was scheduled on the proposed termination of Ms. Gordon on September 23, 2016, and DAFS Deputy Commissioner David Lavway presided over the Loudermill hearing.
Ms. Cole served her suspension and returned to work on December 27, 2016. DSMF ¶ 139; PRDSMF ¶ 139. Upon her return to work, Ms. Cole was assigned to a new supervisor, Technology Business Consultant Nathan Willigar, in the chain of command under Associate CIO Victor Chakravarty.
Ms. Cole submitted her resignation effective January 18, 2017.
According to Ms. Gordon, Mr. Smith discriminated against her when he failed to take her to lunch when she was named Employee of the Month but took Ms. Cole to lunch for a similar occasion. DSMF ¶ 150; PRDSMF ¶ 150. Ms. Gordon does not know if Mr. Karstens discriminated against her but thinks that he discriminated against Ms. Cole by implying that she was "just as smart as a man." DSMF ¶ 151; PRDSMF ¶ 151. According to Ms. Cole, Mr. Karstens discriminated against her when he made a statement to the effect that she was just as smart as a man; when he insinuated to others that Ms. Cole was too friendly with a male contractor, and when he said that he got Ms. Cole her promotion. DSMF ¶ 152; PRDSMF ¶ 152. Mr. Smith never did or said anything inappropriate to Ms. Cole.
OIT contends that the Plaintiffs' sex discrimination claims under Title VII and the MHRA must fail as the Plaintiffs cannot make a prima facie case of discrimination. Def.'s Mot. at 1. OIT says that the Plaintiffs identified four different acts that they say qualify as unlawful discrimination: (1) that Mr. Smith discriminated against Ms. Gordon when he failed to take her to lunch when she was named employee of the month, but did take Ms. Cole to lunch for a similar occasion; (2) that Mr. Karstens discriminated against Ms. Cole when he stated that she was just as smart as a man; (3) that Mr. Karstens further discriminated against Ms. Cole when he insinuated to others that she was too friendly with a male contractor; and (4) that Mr. Karstens discriminated against Ms. Cole when he said that he got Ms. Cole her promotion.
OIT says that the Plaintiffs cannot meet their prima facie case because they cannot establish that they were treated differently from similarly situated men. OIT contends that the Plaintiffs "cannot point to any male employee of OIT who engaged in the same conduct for which Plaintiffs were investigated and disciplined who was treated more favorably." Id. at 7. OIT also contends that OIT's disciplinary actions against the Plaintiffs do not meet the definition of "adverse action" for the purposes of a discrimination claim, because the Plaintiffs do not offer minimally sufficient evidence of pretext and discriminatory animus in OIT's actions against the Plaintiffs. Id. at 6.
OIT says that Plaintiffs' hostile work environment claim consists of twentytwo instances of conduct on the part of OIT. Id. at 10-12. It argues that the Plaintiffs have not shown, subjectively and objectively, that the conduct of OIT employees was severe and pervasive, as is required to make a prima facie case of a hostile work environment. Id. at 9.
OIT says that the Plaintiffs also report an incident in a bar in March 2014, in which Mr. Karstens allegedly made unwanted sexual advances toward Ms. Cole. Id. at 12. OIT argues that the incident should not be considered as part of the Plaintiffs' hostile work environment claim because it is barred by the 300-day statute of limitations outlined in 5 M.R.S. § 4611, and does not meet the definition of a continuing violation, because (1) the incident involved Ms. Cole, but not Ms. Gordon, (2) the incident was not part of a series of discriminatory acts, and (3) "Ms. Cole's awareness and duty to complain about the alleged incident was triggered when she knew or could have formed a reasonable belief that the earlier violations may have been discriminatory", which was in March 2014. Id. at 12-13.
OIT further argues that even if the March 2014 incident were considered to determine whether subsequent alleged conduct was based on sex, the Plaintiffs' hostile work environment claim would fail, because the majority of the subsequent conduct alleged was directed generally at both male and female employees. Id. at 13. OIT contends that the Plaintiffs cannot prove that the conduct at issue was not "merely tinged with sexual connotations, but actually constituted discrimination because of sex." Id.
It reiterates that the conduct does not rise to the level of severe or pervasive, citing examples in caselaw. To support its contention that the conduct was not subjectively offensive, OIT highlights "the fact that Gordon invited Karstens to join her business venture in September 2015 suggests that Gordon did not find Karstens' alleged conduct offensive." Id. at 17.
Finally, OIT argues that it is not liable for the actions of its employees because it took reasonable care to promptly respond to the Plaintiffs' complaints, and therefore was not negligent. Id.
OIT says that the Plaintiffs allege that the investigation and subsequent discipline against them was in retaliation for reporting "unlawful sexual harassment, a hostile work environment, and discrimination and for blowing the whistle on the Pega contract" in violation of the WPA, 26 M.R.S. § 831. Id. at 18.
OIT argues that the Plaintiffs cannot establish a causal link between their protected activity and the investigation and resulting disciplinary action, so their claim must fail. Id. at 21. OIT highlights the sequence of events that led to the investigation of Ms. Cole and Ms. Gordon, which began with Ms. Perkins' review of their timesheets, which they had signed and submitted one week before the end of the payroll reporting period. Id. OIT also notes that there is no evidence in the record that Mr. Karstens was involved in the initial discovery of the timesheet irregularities that led to the investigation. Id. According to OIT, without knowledge of protected activity, there can be no causal connection to the alleged adverse action. Id. at 23-24 (citing Medina-Rivera v. MVM, Inc., 713 F.3d 132, 140 (1st Cir. 2013)).
To support its contention that no causal link existed, OIT points to the fact that the investigation was conducted by the State EEO Officer, not OIT employees, and that not all allegations against Ms. Cole were substantiated. Id. at 24. It also highlights that it considered taking action against other individuals involved in the "AW meetings" as further evidence that the Plaintiffs were not subjected to an adverse action as a result of protected activity. Id. at 25.
In response, the Plaintiffs first state that the Defendant has not moved for summary judgment on the Plaintiffs' claim under the WPA, 26 M.R.S. § 833. Pls.' Resp. at 1. The Plaintiffs then say that "there are questions of material fact related to their WPA claims regarding the Pega Enterprise agreement that preclude summary judgment, so it makes sense the defendant has not moved." Id. at 3. The Plaintiffs contend that Mr. Smith had discriminatory motive, evidenced by his dismissal of the Plaintiffs based on "trumped-up de minimis infractions immediately on the heels of them asserting their rights." Id. at 4.
With regard to the sex discrimination claim, the Plaintiffs state that Ms. Cole, "a member of a protected group and competent at her job", was "denied equal opportunity to thrive at work because she didn't want a sexual relationship with Karstens." Id. The Plaintiffs contend that they have made a prima facie case of sex discrimination, because both "plaintiffs are women, Ms. Gordon was terminated, and Ms. Cole given a two-week suspension, while comparably qualified persons continued to perform their work responsibilities." Id. at 7.
The Plaintiffs state: "a reasonable jury could find that Ms. Cole rejected the sexual advances of a drunk, volatile and married supervisor and Ms. Gordon tried to protect her from his wrath." Id. at 6. They also contend that a reasonable jury could find Ms. Shippee's investigation so tainted by the discriminatory bias of Mr. Karstens and Mr. Smith that a causal connection exists between Mr. Karstens' and Mr. Smith's discriminatory bias and Ms. Shippee's findings of conduct. Id. at 7. In support of their contentions, the Plaintiffs cite Awugah v. Key Bank, N.A., No. 2:12-cv-97-DBH, 2013 WL 950694, 2013 U.S. Dist. LEXIS 33859 (D. Me. Mar. 12, 2013), Harlow v. Potter, 353 F. Supp. 2d. 109 (D. Me. 2005), and Cote v. T-Mobile, 168 F.Supp.3d 313 (D. Me. 2016). Id. at 7. The Plaintiffs also claim that almost all of the information relied upon by Ms. Shippee was provided by Mr. Karstens. Id. at 7-8. The Plaintiffs contend that "the temporal proximity between plaintiffs' reports to HR and Karstens' sudden investigation is so close causation can be inferred. Id. at 8 (citing Furhman v. Staples Office Superstore East, Inc., 58 A.3d 1083, 1093 (Me. 2012)). Finally, as evidence of discriminatory animus, the Plaintiffs point to evidence that Mr. Karstens wished to terminate them, and Mr. Smith wanted to engage a criminal investigation. Id. at 9.
In its reply, OIT first contends that the Plaintiffs' response does not comply with Local Rule 56(f), because it recites purported statements of facts not included in any of the parties' statements of facts, and are not otherwise supported by record citations, and, with two exceptions, does not contain citations to the parties' statements of facts. Def.'s Reply at 1. OIT argues that the Court should not consider any of the facts in the Plaintiffs' response that do not comply with Rule 56. Id. at 2.
Second, OIT reiterates that it is entitled to summary judgment on the Plaintiffs' sex discrimination claim because the Plaintiffs have not established their prima facie case, in that they have not established that a similarly situated male employee was treated more favorably. Id. OIT also says that the Plaintiffs have not shown that OIT's reasons for taking adverse action were pretextual. Id. OIT notes that the Plaintiffs contend that they have made their prima facie case because "both plaintiffs are women. Gordon was terminated, and Cole was given a two-week suspension while comparably qualified persons continued to perform their work responsibilities." Pls.' Resp. at 7. OIT points out that the Plaintiffs have not offered any evidence about "comparably qualified persons." Id. at 2-3.
OIT also contends that the Plaintiffs have not shown that they were subjected to a hostile work environment, because Mr. Karstens' behavior was not targeted at the Plaintiffs or at women in general. OIT also says that the Plaintiffs have not established that the conduct was either subjectively or objectively offensive, or severe and pervasive.
With regard to the Plaintiffs' retaliation claims under the WPA and the MHRA, OIT points out that the Plaintiffs were incorrect in their statement that OIT has not moved for summary judgment on these claims. Id. at 5. OIT states that it has moved for summary judgment on the Plaintiffs' WPA claim in its entirety. Id. OIT clarifies that it has chosen, for purposes of summary judgment, not to dispute the Plaintiffs' good faith belief that the Pega contract was illegal, or that they engaged in protected activity for the purposes of the WPA, because the belief that the reported practice is illegal is sufficient to be protected activity under the WPA, as long as the report is made in good faith. Id. (citing Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261-62 (1st Cir. 1999)). OIT reiterates its earlier contention that the Plaintiffs have not established a causal connection between any protected activity and the adverse action, and pretext has not been established, because the evidence establishes that OIT's belief that the Plaintiffs engaged in the alleged misconduct was reasonable. Id. at 5-7.
Summary judgment is appropriate "if the movant shows that 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 fact is "material" if it "has the potential to change the outcome of the suit." Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir. 2011) (quoting Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010)). A dispute is "genuine" if "a reasonable jury could resolve the point in favor of the nonmoving party." Id. (quoting McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995)).
Once the moving party has supplied this evidence, the non-movant must "produce `specific facts, in suitable evidentiary form, to . . . establish the presence of a trialworthy issue.'" Triangle Trading Co., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (quoting Morris v. Gov't Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994)). In other words, the non-moving party must "present `enough competent evidence' to enable a factfinder to decide in its favor on the disputed claims." Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002) (quoting Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir. 1993)). The Court then "views the facts and draws all reasonable inferences in favor of the nonmoving party." Ophthalmic Surgeons, Ltd. v. Paychex, Inc., 632 F.3d 31, 35 (1st Cir. 2011). However, the Court "afford[s] no evidentiary weight to `conclusory allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative.'" Tropigas, 637 F.3d at 56 (quoting Rogan v. City of Boston, 267 F.3d 24, 27 (1st Cir. 2001)); accord Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir. 2009).
The Defendant raises the procedural issue of whether the factual statements in Plaintiffs' response to its motion for summary judgment are unsupported, failing to comply with Local Rule 56(f). See Def.'s Reply at 1-2. Specifically, the Defendant states that the Plaintiffs' brief (1) "recites purported statements of facts that are not set forth in any of the parties' separate statements of material facts and are not otherwise supported by record citations", and (2) with two exceptions, does not contain citations to the parties' statements of facts. Id. at 1.
The Defendant argues that Local Rule 56(f) states that "[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment. The Court shall have no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of fact." For further support, the Defendant cites Stark v. Hartt Transp. Systems, Inc., 37 F.Supp.3d 445, 451 (D. Me. 2014). Def.'s Reply at 1. The Defendant also contends that "[f]acts recited in the body of a brief, without citation to a statement of material facts, are not cognizable on summary judgment. The court should not be expected to parse [a party's] statement of material facts to determine whether the untethered facts presented in its brief also appear in its statement of material facts." Id. at 1-2 (citing O'Brien v. Thunder Bay, Inc., 2008 A.M.C. 2625, 2008 WL 4104181, at *7 (D. Me. Aug 28, 2018)). The Defendant avers that "the Court should not consider any facts contained in Plaintiffs' memorandum of law that are not contained in the separate statements of material facts filed by the parties and that are not supported by a citation thereto." Id. at 2.
The Court agrees. To survive the Defendant's motion, the non-movant must "produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Triangle Trading Co., 200 F.3d at 2. A number of factual statements in the Plaintiffs' response are not in suitable evidentiary form as they are unsupported by record citations.
An employee alleging discrimination or retaliation "must file an administrative claim with the EEOC or with a parallel state agency before a civil action may be brought." Thornton v. United Parcel Serv., Inc., 587 F.3d 27, 31 (1st Cir. 2009). "When filed with a state agency, the administrative [charge] must be filed within 300 days after the alleged unlawful employment practice occurred." Id. at 31 (citing 42 U.S.C. § 2000e-5(e)(1)); Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). "Maine antidiscrimination and whistleblower protections laws contain the same administrative exhaustion requirement and 300-day time limitation." Burnett v. Ocean Properties, Ltd., No. 2:16-cv-00359-JAW, 2018 WL 2925126, at *24 (D. Me. June 11, 2018) (citing 5 M.R.S. §§ 4611, 4622).
The Defendant contends that to the extent the Plaintiffs' claims are based on the March 2014 incident in which Mr. Karstens allegedly sexually assaulted Ms. Cole, they must be dismissed because the Plaintiffs did not timely raise and exhaust their claim in administrative proceedings.
The Plaintiffs allege that OIT's investigation and subsequent discipline of them was in retaliation for their reporting "unlawful sexual harassment, a hostile work environment and discrimination for blowing the whistle on the Pega contract." (Compl. ¶ 52). They claim retaliation specific to the WPA
Under the MWPA, `[n]o employer may discharge or otherwise discriminate against an employee" when:
26 M.R.S. § 833(1)(A)-(B). 42 U.S.C. § 2000e-3a prohibits employer retaliation when [an employee] has opposed . . . an unlawful discrimination practice . . . or . . . made a Title VII charge due to an individual opposing any act or practice that is unlawful under this Act." Similarly, section 4633 of the MHRA makes it unlawful for an employer to "discriminate against any individual because that individual has opposed any act or practice that is unlawful under this act. . . ."
To establish a claim of either general retaliation under Title VII/MHRA or specific retaliation under the MWPA, the Plaintiffs must make a prima facie case that (1) they engaged in protected conduct; (2) they suffered an adverse employment action; and (3) there was a causal connection between the protected conduct and the adverse employment action. Valle-Arce 20 v. Puerto Rico Ports Auth., 651 F.3d 190, 198 (1st Cir. 2011); see also Tripp, 425 F.3d at 9; Walsh v. Town of Millinocket, 2011 ME 99, ¶ 24, 28 A.3d 610. An employee's report "is supported by reasonable cause when the employee has a subjective and objectively reasonable belief that a dangerous condition or practice exists." Cormier v. Genesis Healthcare LLC, 129 A.3d 944, 948 (Me. 2015). "Both general MHRA and WPA retaliation claims require butfor causation, meaning that the adverse action must have been substantially motivated by the employee's protected activity." Charette v. St. John Valley Soil & Water Conservation Dist., No. 1:17-cv-35-GZS, 2018 WL 3966250, at *25, 2018 U.S. Dist. LEXIS 139547, at *72 (D. Me. Aug. 17, 2018) (citing Theriault v. Genesis Healthcare LLC, 890 F.3d 342, 349 (1st Cir. 2018) (WPA)); Ramsdell v. Huhtamaki, Inc., 992 F.Supp.2d 1, 21 (D. Me. 2014) (MHRA)).
Whether the Plaintiffs have made a prima facie case of unlawful retaliation differs slightly for WPA claims. Brady v. Cumberland Cty., 2015 ME 143, ¶ 16, 126 A.3d 1145, as corrected (Mar. 8, 2016). Rather than following the McDonnell Douglas burden-shifting framework traditionally used to analyze unlawful retaliation claims, the Maine Supreme Judicial Court collapsed the framework into one step. Id. at 1154-55. Described as the "Maine-specific retaliation paradigm," the First Circuit explained that "the Law Court shelved the tripartite McDonnell Douglas burden-shifting framework in favor of a singular inquiry: `whether the record as a whole would allow a jury to reasonably conclude that the adverse employment action was motivated at least in part by retaliatory intent.'" Theriault v. Genesis Healthcare LLC, 890 F.3d 342, 350 (1st Cir. 2018) (quoting Brady, 126 A.3d at 1158). In other words, the inquiry "includes consideration of whether an employer's purported nonretaliatory reason for its employment action is pretextual." Theriault v. Genesis Healthcare LLC, No. 2:15-CV-530-GZS, 2017 WL 1403162, at *7 (D. Me. Apr. 19, 2017) (citing Brady, 126 A.3d at 1156). Yet, as the First Circuit has written, "all roads lead to Rome," and the Maine-specific paradigm "obligates the plaintiff to adduce precisely the same quantum of proof that she would have had to adduce to defeat summary judgment under the McDonnell Douglas framework." Theriault, 890 F.3d at 351.
The Plaintiffs allege in Count One of their Complaint that they were retaliated against for reporting what they believed was the unlawful Pega contract, and for refusing to carry out a directive to engage in activity that would be unlawful by exclusively using the contract "even when it was not the best product for their state agency customers." Compl. at 5, 9. The Defendant concedes that Ms. Cole's suspension and Ms. Gordon's termination are adverse employment actions for the purposes of the WPA analysis but contests that OIT's placement of Ms. Cole and Ms. Gordon on paid administrative leave pending the outcome of the investigation meets the threshold for an "adverse action" for the purpose of the WPA. Def.'s Mot. at 21. The Defendant also challenges that there was a causal connection between the activity and the subsequent adverse actions taken by OIT. Id. at 18.
The WPA "requires an employee to prove that a reasonable person might have believed that the employer was acting unlawfully." Bard v. Bath Iron Works Corp., 590 A.2d 152, 154-55 (Me. 1991) (finding no reasonable cause to establish protected activity when an employee's testimony showed "no more than that he believed that a violation of contract provisions might have occurred"). The evidence in this record suggests that OIT entered into a sole source contract with Pega Enterprise in contravention of state of Maine policies. The Pega Enterprise contract was an $8 million dollar contract and the record indicates that a contract of this size should have been approved by the State Procurement Review Committee and reviewed by the state of Maine Attorney General's Office. PSAMF ¶¶ 156-61. In addition, the Plaintiffs reported to Ms. Beaudoin that "they were being pressured to `push' the Pega contract and sell licenses to agencies even if it did not feel like a good fit." PRDSMF ¶ 88.
Viewing the evidence in the light most favorable to the Plaintiffs, the Court finds that a reasonable factfinder could find this evidence to be sufficient to support an objective or subjectively reasonable belief that unlawful activity had occurred. The focus of the protected activity inquiry, however, is not whether the contract was illegal, or whether other employees knew it was illegal, but whether the Plaintiffs had a reasonable belief that it was illegal. Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261-62 (1st Cir. 1999). Here, the Court concludes that the Plaintiffs generated a jury question as to whether they engaged in protected conduct when they asserted that the Pega Enterprise contract was illegal. The unorthodox bidding process combined with agency pressure to use Pega Enterprise's product, even though the Plaintiffs thought the Pega product was not a good fit for the agency are sufficient to give the Plaintiffs a reasonable belief of impropriety.
The Defendant concedes that the Plaintiffs' suffered an adverse employment action when OIT suspended Ms. Cole and terminated Ms. Gordon, but contests that OIT's placement of the Plaintiffs on paid administrative leave constitutes an adverse action for the purposes of the causal connection analysis. Def.'s Mot. at 21 n.2. The Defendant argues that since the paid administrative leave was not an adverse action, the date that Mr. Karstens learned of the Plaintiffs' complaints to Human Resources is not material to the causal connection analysis. Id. This issue is a red herring.
Adverse actions under the WPA are those that adversely affect the employee's compensation, terms or other conditions of employment. DiCentes v. Michaud, 1998 ME 227, ¶ 21, 719 A.2d 509, 514. The Defendant contends that: "at the summary judgment phase, placement on paid administrative leave does not constitute an adverse action for purposes of a WPA claim." Def.'s Mot. at 21 (quoting Testa v. Town of Madison, 2005 WL 2365319, at *11 (D. Me. Sept. 26, 2005)). It is true that there is authority that the placement of an employee on paid administrative leave pending the results of an investigation does not constitute an adverse employment action. Jones v. SEPTA, 796 F.3d 323, 326 (3d Cir. 2015); Joseph v. Leavitt, 465 F.3d 87, 90-91 (2d Cir. 2006); Singletary v. Mo. Dep't of Corr., 423 F.3d 886, 892 (8th Cir. 2005); Peltier v. United States, 388 F.3d 984, 986, 988 (6th Cir. 2004); Von Gunten v. Maryland, 243 F.3d 858, 869 (4th Cir. 2001); Breaux v. City of Garland, 205 F.3d 150, 154-55 (5th Cir. 2000). There is countervailing authority that placement on administrative leave may constitute an adverse employment action. Dahlia v. Rodriguez, 735 F.3d 1060, 1078 (9th Cir. 2013) (en banc). The First Circuit has not directly addressed the issue.
In United States ex rel. Herman v. Coloplast Corp., 295 F.Supp.3d 37 (D. Mass. 2018), the District Court set forth a useful analysis. In Herman, after noting the divergence of Circuit authority and the absence of First Circuit precedent, the Court observed that in Lockridge v. University of Maine System, 597 F.3d 464, 472 (1st Cir. 2010), the First Circuit wrote that "employment actions are less susceptible to categorical treatment when it comes to the question of whether they are or are not materially adverse." Herman, 295 F. Supp. 3d at 43. The Herman Court noted that "whether a challenged action is materially adverse is `an objective test and "should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances.'" Id. (quoting Lockridge, 597 F.3d at 472 (quoting Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53, 71 (2006)).
The record reflects that Ms. Gordon and Ms. Cole complained directly to Mr. Karstens about the Pega Enterprise contract on November 10, 2015, and Ms. Gordon had raised the issue earlier. Ms. Gordon and Ms. Cole next raised the issue on February 22, 2016, when they spoke with Ms. Beaudoin. OIT began an investigation of Ms. Gordon and Ms. Cole's time sheets on the same day. Assuming that the placement of the Plaintiffs on paid administrative leave was not an adverse action, the record still shows that the investigation, which resulted in admitted adverse action by the Defendant against the Plaintiffs, was initiated the same day that they reported their concerns regarding the Pega Contract. Removing the paid administrative leave as an adverse action does not change the evidence in the record regarding timing and causation. The fact that the Defendant placed the Plaintiffs on paid administrative leave before it terminated one and suspended another is immaterial to their claims, which are based on undeniably adverse employment actions.
The Court turns to causation. The Maine Supreme Judicial Court has held that "[t]emporal proximity of an employer's awareness of protected activity and the alleged retaliatory action may serve as the causal link for purposes of a prima facie case." Fuhrmann v. Staples the Officer Superstore East, Inc., 2012 ME 135, ¶ 16, 58 A.3d 1091 (quoting Daniels v. Narraguagus Bay Health Care Facility, 2012 ME 80, ¶ 21, 45 A.3d 722). Here, if the date of the employer's awareness of protected activity (to someone in authority other than Mr. Karstens) is February 22, 2016, the employer initiated its investigation of their alleged misconduct the very same day. Although the timing between the protected conduct and the employer's action may be purely coincidental, the Court must view the facts in the light most favorable to the Plaintiffs and will not assume that the employer did not know of the protected conduct when it initiated and continued its investigation, leading to the suspension of one complainant and the termination of the other. At least, there is a question of fact on this issue that must be resolved by a jury. This is enough to meet the Plaintiffs' prima facie burden to demonstrate causation. Thus, in the Court's view, the Plaintiffs sustained their burden to meet the three elements for a WPA claim.
Included in the mix is the Defendant's justification for its disciplinary actions against Ms. Gordon and Ms. Cole. See Brady, 126 A.3d at 1158 ("[T]he evidence that would be presented in the second and third stages of the McDonnell Douglas framework will still fall within the analytical framework applicable to summary judgment motions in WPA retaliation cases because the evidence still bears on the allegation of causation"). Here, the question is whether the Defendant's justification overrides the temporal link between receipt of the Plaintiffs' concerns about Pega Enterprises and the initiation and maintenance of the investigation that led to their discipline. The Court views the countervailing positions on this issue between the Plaintiffs and the Defendant as fodder for jury resolution.
The standard for a WPA claim in Maine is, as the First Circuit and the Maine Law Court have articulated it, "a singular inquiry: `whether the record as a whole would allow a jury to reasonably conclude that the adverse employment was motivated at least in part by retaliatory intent." Theriault v. Genesis Healthcare LLC, 890 F.3d at 350 (quoting Brady, 126 A.3d at 1158). Applying this standard, the Court concludes that there is sufficient evidence for the Plaintiffs to survive summary judgment on their WPA claim.
Count Two of the Plaintiffs' Complaint claims general discrimination under 42
U.S.C.A. § 20003 and 5 M.R.S. § 4663, based on Ms. Cole's and Ms. Gordon's allegation that they were retaliated against by their employer for reporting sexual harassment and a hostile work environment.
The analysis of a Title VII claim of retaliation largely mirrors that of a WPA claim with the same three elements of a prima facie case. Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 38 (1st Cir. 2003); Benoit v. Technical Mfg. Corp., 331 F.3d 166, 175 (1st Cir. 2003); Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir. 1994). As a matter of law, the Plaintiffs' retaliation claim may be viable even if their underlying discrimination claim is not. Benoit, 331 F.3d at 174; Mesnick v. General Electric, 950 F.2d 816, 827 (1st Cir. 1991); Petitti v. New England Tel. & Tel. Co., 909 F.2d 28, 33 (1st Cir. 1990). The employment activity or practice that the Plaintiffs opposed need not be a Title VII violation as long as they had a reasonable belief that it was and they communicated that belief to their employer in good faith. Benoit, 331 F.3d at 174-75; Higgins, 194 F.3d at 262.
The Defendant argues that the "Plaintiffs cannot demonstrate that they had a good faith, reasonable belief that OIT engaged in employment practices made unlawful by [the] Maine Human Rights Act or Title VII . . . because no reasonable person could objectively believe that the conduct Plaintiffs' reported to Human Resources (1) occurred because of their status as women; or (2) was severe or pervasive enough to constitute sexual harassment under the MHRA or Title VII." Def.'s Mot. at 20.
The Court disagrees. The record confirms that the Plaintiffs had a good faith belief that Ms. Cole had been discriminated against and subjected to a hostile work environment by Mr. Karstens. In February 2016, Ms. Gordon reported Mr. Karstens' behavior to CIO Jim Smith, to HR Representative Ms. Sturtevant, and Ms. Cole and Ms. Gordon together reported this activity to HR Director Beaudoin on February 22, 2016.
The record reflects, and the Defendant does not contest, that OIT took "adverse employment action" against Ms. Cole and Ms. Gordon under Title VII. Under the Title VII analysis, the Plaintiffs need only show that the action taken "would have been materially adverse to a reasonable employee or applicant." Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 54 (2006). As the Court has discussed, the actions of OIT—placing Ms. Cole and Ms. Gordon on paid administrative leave pending the outcome of the investigation, then subsequently terminating Ms. Gordon and suspending Ms. Cole—are adverse under Title VII.
The last element is a causal connection between the protected activity and the adverse action. The Defendant argues that the Plaintiffs have not established a causal connection because Ms. Perkins, who was unaware of the Plaintiffs' reports against Mr. Karstens, first noticed discrepancies on Ms. Cole's and Ms. Gordon's timesheets on February 22, 2016, which she brought to Mr. Karstens' attention, who brought the issues to Mr. Smith's attention that same morning. The Defendant contends that the "Plaintiffs cannot establish that they would not have been investigated and ultimately disciplined but for OIT's desire to retaliate against them for their reports to Human Resources." Def.'s Mot. at 25. In response, the Plaintiffs argue that "the temporal proximity between plaintiffs' reports to HT and Karstens' sudden `investigation' is so close causation can be inferred." Pls.' Resp. at 8 (citing Furhman v. Staples Office Superstore East, Inc., 58 A.3d 1083, 1093 (Me. 2012)).
In Mesnick v. General Electric Company, the First Circuit elucidated on the types of evidence that can be sufficient for the purposes of summary judgment:
950 F.2d 816, 828 (1st Cir. 1991) (internal citations omitted). "Under clear First Circuit precedent, [] close temporal proximity can be sufficient to sustain the Plaintiff's prima facie burden in her retaliation claim." Rhoades v. Camden Nat. Corp., 575 F.Supp.2d 260, 262 (D. Me. 2008) (citing Wright v. CompUSA, Inc., 352 F.3d 472, 478 (1st Cir. 2003)). In Rhoades, the Court found a timeframe of twelve days between the Plaintiff's complaint and her termination to be "particularly compelling." Id.
Here, the temporal proximity between the protected activity and the adverse action is similarly persuasive. Ms. Gordon's first report of unlawful activity was on February 10, 2016. Ms. Cole and Ms. Gordon met with Ms. Beaudoin together on February 22, 2016. That same day, Ms. Perkins reported irregularities on Ms. Cole's and Ms. Gordon's timesheets to Mr. Karstens, who reported them the same day to Mr. Smith. The record also shows that Mr. Karstens provided a significant proportion of documents informing the investigation. It is true that Mr. Karstens was not aware of the allegations against him until February 24, 2016, two days after he reported the timesheet irregularities to Mr. Smith. But if—as the Plaintiffs allege—Mr. Karstens had been engaging in a campaign of sexual harassment against Ms. Cole, the fact that he spent hours during the evenings of Monday, February 22, 2016 and Tuesday, February 23, 2016, poring over Ms. Cole's and Ms. Gordon's timesheets is consistent with his using the pretext of an investigation to continue to harass Ms. Cole and Ms. Gordon, Ms. Cole's supporter. Furthermore, whether Mr. Karstens continued to support the investigation against the Plaintiffs by providing evidence and documentation to Ms. Shippee after he learned of the Plaintiffs' allegations against him is disputed by the parties and is a question for a jury. The Court finds that a reasonable jury could determine the existence of a causal connection between the protected activity and the investigation and subsequent disciplinary action against the Plaintiffs.
Under the McDonnell Douglas burden-shifting framework, the Plaintiffs have sustained their burden to establish a prima facie case of retaliation. McDonnell Douglas requires that the burden then shifts to OIT to show a legitimate, nondiscriminatory reason for its actions. According to the Defendant, the Court must look to "whether the employer believed that its profferred reason was credible," Def.'s Reply at 7 (citing Ruiz v. Posadas de San Juan Assoc., 124 F.3d 243, 248 (1st Cir. 1997)), and the Plaintiffs "must do more than cast doubt on the rationale proffered by the employer." Id. The Defendant contends that "much more evidence beyond the documentation that Karstens provided was considered in substantiating the allegations against Plaintiffs. Ms. Shippee interviewed at least thirteen witnesses, in addition to Plaintiffs, and Plaintiffs were interviewed at least five times each." Id. The Court concludes that there are triable issues as to whether OIT's adverse actions against Ms. Cole and Ms. Gordon were legitimate or whether Mr. Karstens' involvement in the investigation tainted its outcome. The Court, therefore, denies the Defendant's motion for summary judgment as to Plaintiffs' Title VII and MHRA general retaliation claims.
In Count Two of their Complaint, the Plaintiffs allege that they were the victims of sex discrimination under Title VII and the MHRA under a disparate treatment theory.
The Defendant argues that the Plaintiffs' prima facie case for gender discrimination fails because the Plaintiffs have not shown that they were not treated differently from similarly situated men. Accordingly, the Court narrows its inquiry to the issue raised by the Defendant.
The Plaintiffs contend that Ms. Cole was "denied equal opportunity to thrive at work because she didn't want a sexual relationship with Karstens." Pls.' Resp. at 4. However, the Plaintiffs have not offered evidence that similarly situated men were not or would not have been subjected to the adverse actions of OIT. The evidence most relevant to the issue is whether a male employee who was also allegedly using work time and other state resources for personal business was also placed under investigation. The male employee was not investigated, however, as he was no longer employed by the State when the alleged misconduct was discovered. These circumstances make the male employee an unhelpful comparator. Similarly, although OIT considered taking action against the contract employees, both male and female, who were included in some of the meeting invitations for Ms. Cole's and Ms. Gordon's personal business venture, it was determined that they did not charge their time to OIT for these meetings, and no action was taken. Viewing the evidence in the light most favorable to the Plaintiffs, the record is insufficient for a reasonable factfinder to find for the Plaintiffs on their Title VII and MHRA discrimination claim, and the Court accordingly grants the Defendant's motion for summary judgment on this issue.
In Count Two of their Complaint, the Plaintiffs put forth a claim of "sex discrimination, harassment, and retaliation" under Title VII and the MHRA. Compl. at 10.
Although there is no formula to determine whether a plaintiff has presented enough evidence that a hostile work environment exists under Title VII and the MHRA, the plaintiffs must first establish that they are members of a protected class, that they were subjected to unwelcome sexual harassment, and that the harassment was based upon sex. O'Rourke, 235 F.3d at 729. "The pattern of conduct complained of must be "characterized by intimidation, ridicule and insult, not just minor unpleasantness or criticism, (2) offensive to the complainant precisely because of his or her membership in a protected class, and (3) sufficiently burdensome to materially alter the conditions of the complainant's employment." Ricci, 301 F. Supp. 2d at 53 (citing White v. New Hampshire Dep't of Corrections, 221 F.3d 254, 259-60 (1st Cir. 2000)). The discriminatory harassment must be "severe or pervasive," based on the all the circumstances. These include "the frequency and severity of the discriminatory conduct, whether the conduct was physically threatening or humiliating, whether the conduct unreasonably interfered with the employee's work performance, and the effect of the conduct on the employee's psychological well-being." Che v. Mass. Bay Trans. Auth., 342 F.3d 31, 40 (1st Cir. Aug. 26, 2003). "Generally, "pervasiveness and severity are questions of fact." Flood v. Bank of Am. Corp., 780 F.3d 1, 10 (1st Cir. 2015); therefore, "[a]s a general matter, these are questions best left for the jury." Che, 342 F.3d at 40.
It is undisputed that the Plaintiffs are members of a protected class and that Ms. Cole considered Mr. Karstens' conduct unwelcome. The Defendant contests, however, that the harassment was based on sex. The Defendant also argues that the Plaintiffs failed to establish that the conduct was `severe or pervasive' or `subjectively or objectively offensive'. While the Court finds the evidence offered by the Plaintiffs on these issues underwhelming, it concludes that the determination of whether the behavior of Mr. Karstens' constituted a hostile work environment at OIT is "best left for the jury." Id. at 40. This evidence includes Mr. Karstens' prior instances of acting up, his anger and belligerence during office meetings, his refusal to make eye contact with Ms. Cole, his singling out Ms. Cole for "drilling," his warning to Ms. Cole about being too friendly with a contractor, his verbal warning to her about giving someone "attitude," and her inability to do anything right in his eyes. These cumulative facts and others convince the Court that the Plaintiffs have raised a proper question for jury resolution. Accordingly, the Court denies the Defendant's motion for summary judgment on the Plaintiffs' hostile work environment claim.
The Court DENIES the Defendant's Motion for Summary Judgment (ECF No. 27) on Count I (Claim of Retaliation under the Maine Whistleblowers' Act), GRANTS in part and DENIES in part the Defendant's Motion for Summary Judgment on Count II. Specifically, the Court GRANTS the Defendant's Motion for Summary Judgment on the disparate treatment theory underlying Count II, but DENIES the general retaliation and hostile work environment theories underlying Count II.
SO ORDERED.
In addition, citing Ms. Cole's deposition, Mr. Karstens' deposition, and page fifty-nine of the Stipulated Record, the Defendant denies the statement based on evidence that Ms. Gordon and Ms. Cole did go to work the next day. DRPSAMF ¶ 166 (citing Cole Dep. 43:1-12; Karstens Decl. ¶ 17; Stip. R. at 59). The Court rejects this basis for the Defendant's denial because whether Ms. Gordon and Ms. Cole in fact went to work the next day does not address whether Ms. Beaudoin told Ms. Gordon (or for that matter Ms. Cole) not to go to work.
The Plaintiffs' qualification to the Defendant's paragraph 72 asserts additional facts regarding Ms. Cole and Ms. Gordon reporting workplace concerns to Mr. Beaudoin and to other HR personnel earlier in February before the February 22, 2016 meeting among Mr. Beaudoin, Ms. Cole, and Ms. Gordon. The Court declines to include additional facts not directly responsive to the Defendant's statement.
The second part of the qualification says: "Beaudoin's notes from her meeting on 2/22/16 speak for themselves. `sexual touch me—put hand the back of my pants. I tried to get away. Leaned in and hard on me. . . get a motel room. . . I said no, you're married three kids. . . he leaned on me. . . I said no. . . He was getting jealous. . . escalated . . . He kept drilling her . . . TG said you're clearly getting upset, red faced. JK raised his voice beet red clenching his fist . . . He didn't like the way we were moving forward. It was Kayla's idea he didn't like it. . . If KC said something he would get upset . . . paced the room red in the face clenching his fists. Shaking . . . He's aggressive—TG scared. He was angry. TG I think he is threatened by Kayla because she knows her stuff. He makes it a hostile environment. Concerned about retaliation. It's stressful. My heart starts to race. Pacing, red faced, clenching his fists.'" PRDSMF Attach. 10 (ECF No. 39-10). The Court amended the Defendant's paragraph 99 to include the directly responsive statement that Ms. Cole and Ms. Gordon reported other concerns to Ms. Beaudoin on February 16, 2016. The Court interprets the Plaintiffs' unhelpful second statement to mean that Ms. Cole and Ms. Gordon reported other issues, including instances of sexual harassment, to Ms. Beaudoin during the February 22, 2016 meeting. The Court amended the Defendant's statement to include Ms. Beaudoin's notes regarding Ms. Cole's and Ms. Gordon's report of an incident involving sexual advances.
The second part of Plaintiffs' qualification states: "and
The Defendant also objects to the Plaintiffs' paragraph 176 on hearsay grounds. The Plaintiffs filed a response to the Defendant's request to strike, arguing that the Plaintiffs' paragraph 176 should be admitted, because it is being offered to show the reputations of Ms. Gordon and Mr. Karstens, not the truth of the matter asserted. Pl.'s Local Rule 56(e) Resp. to Def.'s Requests to Strike and Correction (ECF No. 49). The Plaintiffs miscite the correct rule of evidence, referring to Rule 804(21), instead of Rule 803(21). See id. at 1. The Court disagrees with the Plaintiffs that Mr. T.'s observations of Mr. Karstens constitute proper reputation evidence. As the advisory committee noted, Rule 803(21) only addresses whether reputation evidence is hearsay, but such evidence must still conform to other rules of evidence, including Rules 404 and 608. FED. R. EVID. 803(21) advisory committee's note to 1972 proposed rules. This evidence, to the extent it is reputation evidence, would not be admissible under either Rule 404 or Rule 608. Even so, the Court concludes that Mr. T.'s personal observations of Mr. Karstens are not hearsay and are admissible because Mr. T.'s statements are based on his own observations of Mr. Karstens. The Court DENIES the Defendant's request to strike Plaintiff's paragraph 176 on hearsay grounds.
Even though the Plaintiffs cite Ms. Cole's and Ms. Gordon's safety concerns, they present no evidence that these safety concerns were the reason for their refusal to participate in either investigation while on medical leave. Furthermore, the qualification does not directly contradict the Defendant's paragraph 119. The Court rejects the Plaintiffs' qualification.
Whether Ms. Shippee's credibility determination is otherwise admissible is not before the Court and the Court expresses no view on the question.
The Plaintiffs interpose a qualified response, stating: "Smith and Karstens pressured Shippee and made it clear they expected plaintiffs to be fired before an investigation was completed." PRDSMF ¶ 132. The Plaintiffs cite an email exchange between Mr. Smith and Ms. Gordon as support for the qualification. However, the email exchange in Exhibit 19 does not support the contention that Mr. Smith or Mr. Karstens made it clear that the Plaintiffs should be terminated. In the email discussion in Exhibit 19, Mr. Karstens and Mr. Smith discuss moving Ms. Gordon into another department pending the outcome of the investigation against Mr. Karstens, but there is no evidence of a discussion of termination in Exhibit 19. PRDSMF, Attach. 17 Gordon Unemployment Decision (ECF No. 39-6). The Court declines to include the Plaintiffs' qualification. See PRDSMF, Attach. 6 Beaudoin "punitive" Email (ECF No. 39-6).
The Court is confused. To be judicially noticed, the fact must be "not subject to reasonable dispute." FED. R. EVID. 201(b). The Defendant denied the essential allegations in the Plaintiffs' Complaint. Am. Answer at 1-10. Controverted allegations in a complaint are hardly the stuff for Rule 201 admissibility. The Court overrules the Plaintiffs' qualified response.
Pls.' Resp. at 1-2. There is nothing in paragraphs 156 through 161 that supports most of these statements. Kirsten Figueroa is not mentioned in paragraphs 156 through 161 and there is no evidence at all that "shortly afterwards," Mr. Averill "got a big cushy job at Pegasystems." In fact, the statements of fact do not clearly reveal who Doug Averill is, whether he once worked for the State, when he joined Pega Enterprises, the relationship, if any, between CIO Smith and Mr. Averill. If the Plaintiffs have such evidence, they should have put it in their statements of material fact and not engaged in rhetorical arguments based on evidence not before the Court.
These statements and other factual arguments in the Plaintiffs' responsive memorandum fail to comply with Local Rule 56(h)(4), which states that "[the] court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment. The court shall have no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of fact."
The Court outlined the Plaintiffs' contentions in this section but in making its decision, the Court will not consider unsupported statements of fact contained only in the Plaintiffs' legal memorandum.
