Brown v. Benchmark Cleaning & Supply, Inc.

• Court: Superior Court of Maine
• Decided: January 17, 2012
• Docket: CUMcv-10-579
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION D:~~et ~01 • ~'! -10-~79_ I_ /J ' '· I 1 ~.../ . i) . -, ('..

VELVET BROWN,

Plaintiff

v. :r. ,;h' ORDER · · ~J:'fice

BENCHMARK CLEANING & SUPPLY, INC.

Defendant.

In this case plaintiff Velvet Brown seeks damages from defendant Benchmark

Cleaning & Supply Inc. for employment discrimination. Brown alleges that Benchmark

condoned sexual harassment in the form of a hostile work environment that resulted in

her constructive discharge. Before the court is defendant's motion for summary

judgment.

Summary judgment should be granted if there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law. In considering a

motion for summary judgment, the court is required to consider only the portions of the

record referred to and the material facts set forth in the parties' Rule 56(h) statements.

11g., Johnson v. McNeil, 2002 ME 99 c_[ 8, 800 A.2d 702, 704. The facts must be

considered in the light most favorable to the non-moving party. Id. Thus, for purposes

of summary judgment, any factual disputes must be resolved against the movant.

Nevertheless, when the facts offered by a party in opposition to summary judgment

would not, if offered at trial, be sufficient to withstand a motion for judgment as a matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997_ME

99 ~ 8, 694 A.2d 924, 926.

A claim of unlawful employment discrimination may be based on sexual

harassment that is sufficiently severe and pervasive as to create a hostile work

environment. Watt v. Unifirst Corp., 2009 ME 47 ~ 22, 969 A.2d 897, 902. To prevail on

such a claim, a plaintiff must demonstrate:

(1) that she (or he) is a member of a protected class; (2) that she was subject to unwelcome sexual harassment; (3) that the harassment was based upon sex; (4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of plaintiff's employment and create an abusive work environment; (5) that sexually objectionable conduct was both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive it to be so; and (6) that some basis for employer liability has been established.

In this case the court agrees with defendant that some of the factual assertions

made by Brown in opposition to the pending motion for summary judgment are

unsupported and that some of the evidence tendered by Brown is not admissible for

purposes of summary judgment pursuant to Rule 56(e). For instance, although Brown's

statement of material facts suggests that one of her supervisors 1 repeatedly swore at her

using the "£-word," the summary judgment record supports only one such occasion.

Moreover, although the record would support a finding that the alleged supervisor

acted in an extremely unpleasant manner, it also reflects (and plaintiff acknowledged)

that he acted unpleasantly to both males and females. Finally, although Brown relies

upon a letter authored by Bruce Carver, no affidavit was ever obtained from Carver and

1 There is also a factual dispute as to whether, and to what extent, this individual qualified as a supervisor.

2 it is also impossible to discern if the statements in Carver's letter were the result of his

own observations or whether he is only interpreting what others allegedly told him.

Nevertheless, the court concludes that there is a sufficient factual dispute in this

case to generate a factual issue for trial. Primarily this stems from Brown's deposition

testimony that in addition to what she describes as threatening behavior and

demeaning comments directed at women, the alleged supervisor on four occasions

entered the women's restroom even though he knew Brown was there and in each case

did not leave immediately but remained for approximately 30 seconds despite her

entreaties that he leave.

The court realizes that Benchmark and the alleged supervisor (since terminated

for an incident that did not involve any allegation of sexual harassment) have cast

doubt on the above testimony, but that testimony is sufficient to preclude summary

judgment. Summary judgment is not an opportunity to make determinations as to

credibility. There is also a factual dispute as to whether management was ever informed

as to Brown's complaint of restroom incursions, and there is a factual dispute as to

whether reasonable person in Brown's position facing the conditions she experienced

would have felt compelled to resign. King v. Bangor Federal Credit Union, 611 A.2d 80,

82 (Me. 1992).

The entry shall be:

Defendant's motion for summary judgment is denied. The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: January I1 2012 ~~ Thomas D. Warren Justice, Superior Court

3 VELVET BROWN VS BENCHMARK CLEANING AND SUPPLY INC UTN:AOCSsr -2010-0119990 CASE #:PORSC-CV-2010-00579

01 0000002171 KRAFT PETER 10 MOULTON STREET 6TH FLOOR PORTLAND ME 04101 F BENCHMARK CLEANING AND SUPPLY INC DEF RTND 12/02/2010

02 0000009294 LORANGER GUY D 110 MAIN ST., SUITE 1520 SACO ME 04072 F VELVET BROWN PL RTND 11/12/2010