STATE OF MAINE SUPERIOR COURT ANDROSCOGGIN, ss. CIVIL ACTION Docket No. CV-10-061- i\ \.J' . /\ ' (\ /( M i '( .:..-· - '~ :' ~~ ' . -~ 0 I ~ .:·, 0:.- ·. __, '
LISA LEVESQUE
Plaintiff, ORDER ON PLAINTIFF'S v. MOTION FOR A NEW TRIAL
ANDROSCOGGIN COUNTY,
Defendant.
Before the Court is plaintiff Lisa Levesque's motion for new trial.l
BACKGROUND
In this action, plaintiff Lisa Levesque alleged that during her tenure as a
corrections officer at Androscoggin County Jail, her former employer, Androscoggin
County, committed numerous violations of the Maine Human Rights Act (MHRA).
The complaint specifically alleged that defendant committed unlawful gender
discrimination, retaliation and constructive discharge prior to plaintiffs resignation
in July 2009. Summary judgment was granted for the defendant on the gender
discrimination and the constructive discharge claims, and plaintiff proceeded to trial
on her claim of unlawful retaliation. A four-day jury trial was held in October 2011,
1 Despite defendant's assertion to the contrary, plaintiff quite obviously seeks a new
trial under M. R. Civ. P. 59, and therefore she was not required to move for a directed verdict before the case was submitted to the jury. See Reeves v. F. W Woolworth Co., 485 A.2d 230, 231 (Me. 1984) (ruling on defendant's motion for a new trial despite its "failure at the close of all the evidence to make a motion for a directed verdict"). which resulted in judgment for the defendant. Plaintiff filed a timely motion for a
new trial under M. R. Civ. P. 59(a), contending that there was no credible evidence
supporting the jury's verdict.
DISCUSSION
I. Motion for a New Trial under M. R. Civ. P. 59(a)
The court "may on motion grant a new trial to all or any of the parties and on
all or part of the issues for any of the reasons for which new trials have heretofore
been granted in actions at law or in suits in equity in the courts of this state." M. R.
Civ. P. 59(a).
In the instant motion, plaintiff maintains that no credible evidence admitted
at trial could sustain the jury's verdict granting judgment to the defendant on
plaintiffs claim of retaliation under the MHRA. Upon a motion for a new trial, the
moving party "must show that the jury verdict was so manifestly or clearly wrong
that it is apparent that the conclusion of the jury was the result of prejudice, bias,
passion, or a mistake of law or fact." Binette v. Deane, 391 A.2d 811, 813 (Me. 1978)
(quoting Kennebec Towage Co. v. State, 142 Me. 327, 334, 52 A.2d 166, 169 (1947)).
"Moreover, on a motion for a new trial, the evidence must be viewed in the light
most favorable to the successful party." !d. (quoting Fossett v. Durant, 150 Me. 413,
416, 113 A.2d 620, 622 (1955)). Because plaintiff had the burden of proof at trial,
Levesque can only succeed on her motion for a new trial "if she can establish that
the jury was compelled to find in her favor on each element of her claim." See Ma v.
Bryan, 2010 ME 55, ,-r 6, 997 A.2d 755.
2 II. Plaintiffs Retaliation Claim
There are three elements to a retaliation claim under the Maine Human
Rights Act. Plaintiff must show (1) that she engaged in statutorily protected activity;
(2) her employer made an employment decision that adversely affected her; and (3)
that there was a causal link between the protected activity and the adverse
employment action. Watt v. UniFirst Corp., 2009 ME 4 7, ~ 33, 969 A.2d 897.
A. Protected Activity
Under the MHRA, a protected activity is an action taken to oppose statutorily
prohibited discrimination or participation or assistance in any investigation,
proceeding or hearing under the Act. See 5 M.R.S. § 4572(1)(E).
The crux of plaintiffs argument is that the jury was compelled to find that an
e-mail sent from plaintiff to one of her supervisors on July 27, 2009 constituted a
protected activity under the MHRA. (Pl.'s Am. Mot. 1.) The e-mail was sent in
response to Lt. Jeffrey Chute's recommendation that plaintiff should have her car
inspected. (Pl.'s Am. Mot. 11.) According to plaintiff, the relevant portion of
Levesque's response stated, "are you and the administration targeting me once
again? ... I'm tired of being a target of the administration and I'm tired of being
messed with on a daily basis ... It is obvious you are bias [sic] against me." (Pl.'s Am.
Mot. 11, citing Pl.'s Trial Ex. 23.)
Plaintiff contends that the jury was required to conclude that this message
was a protected activity because it was a complaint about unlawful retaliation.
However, in the cited portion of the e-mail, Levesque did not allege that her gender
or her past complaints of sexual harassment provided the basis of the
3 administration's bias against her. Therefore, the jury reasonably could have
concluded that the e-mail did not constitute either a complaint about gender
discrimination or a complaint that· she was being targeted because of her past
reports of sexual harassment.
Plaintiff also argues that the trial testimony of Sheriff Guy Desjardins
effectively serves as an admission that Levesque's e-mail was a complaint about
retaliation. (Pl.'s Reply 4.) The relevant portion of Desjardins' testimony about thee-
mail included the following exchange between the witness and plaintiffs counsel:
Q: ... When you receive notice of harassment, discrimination or retaliation, it's your duty to look into it, correct? A: I didn't receive notice, sir. Q: You don't believe that this is notice of being targeted? A: This was e-mails going back and forth with Lieutenant Chute ... I looked into it and I didn't see where there was retaliation. Q: Okay, let me back up here. You understood, though, that she's complaining about retaliation? A: Yes.
(Desjardins Tr. 117:2-17.)
It is possible that the Sheriffs testimony could have supported a jury finding
that the e-mail was a protected activity under the MHRA, but alternative
interpretations of the Sheriffs testimony were equally plausible. The jury may have
discounted the term "retaliation" because this was the attorney's characterization of
the complaint, rather than a phrase chosen by the witness. Even though the witness
agreed with the attorney's description, his answer is inconsistent with his previous
statement that he did not receive notice of harassment, discrimination or retaliation.
Due to the lack of clarity in this testimony, the jury was not compelled to find that
Levesque's e-mail was a protected activity under the MHRA.
4 Even if plaintiff was entitled to a finding that she engaged in a protected
activity under the MHRA, she would still need to demonstrate that the jury was
compelled to find in her favor on the other two elements of her claim.
B. Adverse Employment Action
In order to establish an adverse employment action, the Plaintiff "must show
that a reasonable employee would have found the challenged action materially
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STATE OF MAINE SUPERIOR COURT ANDROSCOGGIN, ss. CIVIL ACTION Docket No. CV-10-061- i\ \.J' . /\ ' (\ /( M i '( .:..-· - '~ :' ~~ ' . -~ 0 I ~ .:·, 0:.- ·. __, '
LISA LEVESQUE
Plaintiff, ORDER ON PLAINTIFF'S v. MOTION FOR A NEW TRIAL
ANDROSCOGGIN COUNTY,
Defendant.
Before the Court is plaintiff Lisa Levesque's motion for new trial.l
BACKGROUND
In this action, plaintiff Lisa Levesque alleged that during her tenure as a
corrections officer at Androscoggin County Jail, her former employer, Androscoggin
County, committed numerous violations of the Maine Human Rights Act (MHRA).
The complaint specifically alleged that defendant committed unlawful gender
discrimination, retaliation and constructive discharge prior to plaintiffs resignation
in July 2009. Summary judgment was granted for the defendant on the gender
discrimination and the constructive discharge claims, and plaintiff proceeded to trial
on her claim of unlawful retaliation. A four-day jury trial was held in October 2011,
1 Despite defendant's assertion to the contrary, plaintiff quite obviously seeks a new
trial under M. R. Civ. P. 59, and therefore she was not required to move for a directed verdict before the case was submitted to the jury. See Reeves v. F. W Woolworth Co., 485 A.2d 230, 231 (Me. 1984) (ruling on defendant's motion for a new trial despite its "failure at the close of all the evidence to make a motion for a directed verdict"). which resulted in judgment for the defendant. Plaintiff filed a timely motion for a
new trial under M. R. Civ. P. 59(a), contending that there was no credible evidence
supporting the jury's verdict.
DISCUSSION
I. Motion for a New Trial under M. R. Civ. P. 59(a)
The court "may on motion grant a new trial to all or any of the parties and on
all or part of the issues for any of the reasons for which new trials have heretofore
been granted in actions at law or in suits in equity in the courts of this state." M. R.
Civ. P. 59(a).
In the instant motion, plaintiff maintains that no credible evidence admitted
at trial could sustain the jury's verdict granting judgment to the defendant on
plaintiffs claim of retaliation under the MHRA. Upon a motion for a new trial, the
moving party "must show that the jury verdict was so manifestly or clearly wrong
that it is apparent that the conclusion of the jury was the result of prejudice, bias,
passion, or a mistake of law or fact." Binette v. Deane, 391 A.2d 811, 813 (Me. 1978)
(quoting Kennebec Towage Co. v. State, 142 Me. 327, 334, 52 A.2d 166, 169 (1947)).
"Moreover, on a motion for a new trial, the evidence must be viewed in the light
most favorable to the successful party." !d. (quoting Fossett v. Durant, 150 Me. 413,
416, 113 A.2d 620, 622 (1955)). Because plaintiff had the burden of proof at trial,
Levesque can only succeed on her motion for a new trial "if she can establish that
the jury was compelled to find in her favor on each element of her claim." See Ma v.
Bryan, 2010 ME 55, ,-r 6, 997 A.2d 755.
2 II. Plaintiffs Retaliation Claim
There are three elements to a retaliation claim under the Maine Human
Rights Act. Plaintiff must show (1) that she engaged in statutorily protected activity;
(2) her employer made an employment decision that adversely affected her; and (3)
that there was a causal link between the protected activity and the adverse
employment action. Watt v. UniFirst Corp., 2009 ME 4 7, ~ 33, 969 A.2d 897.
A. Protected Activity
Under the MHRA, a protected activity is an action taken to oppose statutorily
prohibited discrimination or participation or assistance in any investigation,
proceeding or hearing under the Act. See 5 M.R.S. § 4572(1)(E).
The crux of plaintiffs argument is that the jury was compelled to find that an
e-mail sent from plaintiff to one of her supervisors on July 27, 2009 constituted a
protected activity under the MHRA. (Pl.'s Am. Mot. 1.) The e-mail was sent in
response to Lt. Jeffrey Chute's recommendation that plaintiff should have her car
inspected. (Pl.'s Am. Mot. 11.) According to plaintiff, the relevant portion of
Levesque's response stated, "are you and the administration targeting me once
again? ... I'm tired of being a target of the administration and I'm tired of being
messed with on a daily basis ... It is obvious you are bias [sic] against me." (Pl.'s Am.
Mot. 11, citing Pl.'s Trial Ex. 23.)
Plaintiff contends that the jury was required to conclude that this message
was a protected activity because it was a complaint about unlawful retaliation.
However, in the cited portion of the e-mail, Levesque did not allege that her gender
or her past complaints of sexual harassment provided the basis of the
3 administration's bias against her. Therefore, the jury reasonably could have
concluded that the e-mail did not constitute either a complaint about gender
discrimination or a complaint that· she was being targeted because of her past
reports of sexual harassment.
Plaintiff also argues that the trial testimony of Sheriff Guy Desjardins
effectively serves as an admission that Levesque's e-mail was a complaint about
retaliation. (Pl.'s Reply 4.) The relevant portion of Desjardins' testimony about thee-
mail included the following exchange between the witness and plaintiffs counsel:
Q: ... When you receive notice of harassment, discrimination or retaliation, it's your duty to look into it, correct? A: I didn't receive notice, sir. Q: You don't believe that this is notice of being targeted? A: This was e-mails going back and forth with Lieutenant Chute ... I looked into it and I didn't see where there was retaliation. Q: Okay, let me back up here. You understood, though, that she's complaining about retaliation? A: Yes.
(Desjardins Tr. 117:2-17.)
It is possible that the Sheriffs testimony could have supported a jury finding
that the e-mail was a protected activity under the MHRA, but alternative
interpretations of the Sheriffs testimony were equally plausible. The jury may have
discounted the term "retaliation" because this was the attorney's characterization of
the complaint, rather than a phrase chosen by the witness. Even though the witness
agreed with the attorney's description, his answer is inconsistent with his previous
statement that he did not receive notice of harassment, discrimination or retaliation.
Due to the lack of clarity in this testimony, the jury was not compelled to find that
Levesque's e-mail was a protected activity under the MHRA.
4 Even if plaintiff was entitled to a finding that she engaged in a protected
activity under the MHRA, she would still need to demonstrate that the jury was
compelled to find in her favor on the other two elements of her claim.
B. Adverse Employment Action
In order to establish an adverse employment action, the Plaintiff "must show
that a reasonable employee would have found the challenged action materially
adverse, which in this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination." Burlington Northern
& Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (internal citations omitted).
Plaintiff contends that when she was placed on paid administrative leave and
reassigned to the "B Shift," she suffered an adverse employment action because it
would have altered her job responsibilities and changed her hours. (Pl.'s Am. Mot. 1,
14-15.) According to plaintiff, the new hours would have disrupted her commute
and required her to adjust her childcare arrangements.
It is difficult to see how the court could hold that as a matter of law, the jury
was required to find that the transfer "well might have dissuaded a reasonable
worker from making or supporting worker from making or supporting a charge of
discrimination." There was testimony at the trial that Levesque had worked this
shift previously. Furthermore, the jury was not required to believe plaintiffs
testimony regarding the foreseeable adverse effects of the transfer. See Dionne v.
LeClerc, 2006 ME 34, ~ 15, 896 A.2d 923.
5 C. Causal Link
Even assuming arguendo that the jury was required to find that plaintiff
engaged in a protected activity and that she suffered an adverse employment action,
the jury would not have been compelled to conclude that there was a causal
relationship between the two events.
Sherriff Desjardins testified that he transferred Levesque to the different
assignment because she had frequently been subject to discipline and the Sherriff
believed that the different assignment would reduce her stress. (See Def. Opp. 3-4.)
He also testified that he thought Levesque would succeed under a different
supervisor. (Def. Opp. 3-4.) The jury was permitted to believe his direct testimony
regarding this motivation for the transfer.
Plaintiff is correct that if an adverse employment action occurs in close
proximity to the protected conduct, such temporal proximity "can serve as a
substitute for direct evidence of a causal connection between a complaint and an
adverse employment action." DeCaire v. Mukasey, 530 F.3d 1, 17-19 (1st Cir. 2008)
(emphasis added). This does not mean, however, that the jury was compelled to find
that the proximity between the two events superseded the employer's direct
testimony explaining the motivation for the transfer.
Plaintiff places a great deal of emphasis on the testimony of Sheriff
Desjardins, but over the course of the four-day trial the jury heard from
approximately one dozen witnesses and observed a large amount of documentary
evidence. The jury is permitted to draw all reasonable inferences from the
abundance of evidence that was presented. Garland v. Roy, 2009 ME 86, ~ 17, 976
6 A.2d 940. Even if the Sheriffs testimony was uncontroverted, the jury was not
required to accept one witness's version of the events if reasonable inferences
would support an alternative conclusion. See Ma v. Bryan, 2010 ME 55,~ 8, 997 A.2d
755. Based on the entirety of the evidence admitted at trial, the jury may have
reasonably inferred that defendant's decision to transfer Levesque was based
entirely on her job performance and was unrelated to any prior allegations of
harassment or discrimination.
CONCLUSION
In this complex case, both parties received vigorous representation from
skilled and experienced counsel. While the jury could have reached a different
result, the court cannot conclude that there was no credible evidence to support the
jury's verdict for the defendant.
The entry is:
Plaintiffs motion for a new trial is DENIED.
The clerk shall incorporate this Order into the docket by reference pursuant to M.R. Civ. P. 79(a).
7 LISA LEVESQUE - PLAINTIFF SUPERIOR COURT ANDROSCOGGIN, ss. Attorney for: LISA LEVESQUE Docket No AUBSC-CV-2010-00061 GUY D LORANGER - RETAINED NICHOLS WEBB & LORANGER PA 110 MAIN ST., SUITE 1520 DOCKET RECORD SACO ME 04072
vs ANDROSCOGGIN COUNTY - DEFENDANT
Attorney for: ANDROSCOGGIN COUNTY PETER MARCHESI - RETAINED 05/07/2010 WHEELER & AREY PA 27 TEMPLE ST PO BOX 376 WATERVILLE ME 04903-0376
Filing Document: COMPLAINT Minor Case Type: CONSTITUTIONAL/CIVIL RIGHTS Filing Date: 04/02/2010
Docket Events: 04/02/2010 FILING DOCUMENT - COMPLAINT FILED ON 04/02/2010
04/02/2010 Party(s): LISA LEVESQUE ATTORNEY - RETAINED ENTERED ON 04/02/2010 Plaintiff's Attorney: GUY D LORANGER
04/02/2010 CERTIFY/NOTIFICATION - CASE FILE NOTICE SENT ON 04/02/2010
04/02/2010 Party(s): ANDROSCOGGIN COUNTY SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 03/25/2010 THROUGH DALE FIFIELD
04/02/2010 Party(s): ANDROSCOGGIN COUNTY SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 03/29/2010
05/10/2010 Party(s): ANDROSCOGGIN COUNTY ATTORNEY - RETAINED ENTERED ON 05/07/2010 Defendant's Attorney: PETER MARCHESI
05/10/2010 Party(s): ANDROSCOGGIN COUNTY RESPONSIVE PLEADING - ANSWER & AFFIRMATIVE DEFENSE FILED ON 05/07/2010
05/10/2010 ORDER - SCHEDULING ORDER ENTERED ON 05/10/2010 THOMAS E DELAHANTY II, JUSTICE ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO PARTIES/COUNSEL
05/10/2010 DISCOVERY FILING - DISCOVERY DEADLINE ENTERED ON 01/10/2011
05/10/2010 ASSIGNMENT - SINGLE JUDGE/JUSTICE ASSIGNED TO JUSTICE ON 05/10/2010 THOMAS E DELAHANTY II, JUSTICE
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