Little v. Saint Joseph's Manor

• Court: Superior Court of Maine
• Decided: July 23, 2010
• Docket: CUMcv-09-330
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. CV-09)30 ~ r:: • ... ( l.-- ._" -1" '-.... _ i.,1 _,/. 11, 'j•... '1jJ/"" '.. ' I ~ / rL,)U") _,' _. ') __ ~

TRUDY LIT"TLE, Plaintiff STATE OF MAIt'J~fflce cumberland, 55, Clerks ORDER ON DEFENDANT'S JUL 23 20i0 MOTION FOR SUMMARY v. l JUDGMENT

SAINT JOSEPH'S MANOR, RECEIVED Defendant

BEFORE THE COURT

Defendant Saint Joseph's Manor (hereinafter "SJM" or "Defendant") has

filed a motion for summary judgment pursuant to M.R. Civ. P. 56 on Plaintiff

Trud y Little's (hereinafter "Li ttle" or "Plaintiff") Complaint.

PROCEDURAL BACKGROUND On June 4, 2009, Little filed a Complaint alleging workplace

discrimination in violation of the Civil Rights Act,l the Rehabilitation Act/ the

Americans with Disabilities Act (hereinafter "ADA"), 42 USc. §§ 12131-12134,

and the Maine Human Rights Act (hereinafter "MI-IRA"), 5 M.R.S. §§ 4551-4651,

specifically alleging sex discrimination (Count 0, hostile work environment

J Little does not specify whether her claims under the Civil Rights Act are based on the Federal Civil Rights Act, 42 U.S.c. ~~ 1981-2000h-6, or the Maine Civil Rights Act,S M.R.S. ~~ 4681-4683. For the purposes of this summary judgment order, this Court evaluates Little's claim based on the Maine Civil Rights Act. 2 It is not clear whether Little asserts claims under the Federal Rehabilitation Act, 29 U.S.c. ~ 794 et seq. (2010), or the Maine Rehabilitation Act 26 M.R.S. §§ 1411-1421. For the purposes of this motion the court evaluates Little's claim based on the Maine Rehabilitation Act. While the Maine Rehabilitation Act requires the Commissioner of Labor to adopt a grievance procedure for discrimination on the basis of a disability, unlike the Federal Rehabilitation Act. 29 USC ~ 794, the Maine Rehabilitation Act does not specifically provide a cause of action for dlscrimination. Because the Federal District Court for the District of Maine dispensed with Plaintiffs federal claims, this court will only address Plaintiffs claims based on Maine law. harassment (Count II); constructive discharge (Count II!), and disclosure of

confidential information (Count IV). On June 30, 2009, the case was removed to

the United States District Court for the District of Maine upon the Defendant's

motion. The parties proceeded wi th discovery consistent with the terms of the

scheduling order issued by the Federal District Court. Upon completion of

discovery, the Defendant filed a motion for summary judgment in the federal

court. The motion was fully briefed by both parties, and the Federal District

Court heard oral argurnent on the motion on March 26, 201 O. The Honorable

Judge D. Brock Hornby of the Federal District Court entered by oral order

summary judgment for SJM on the Plaintiff's federal claims, and rernanded the

case to the State Superior Court for the remaining state clairrls.

FACTUAL BACKGROUND 3

Little was employed by SJM as a cook supervisor between May 29, 2006

and July 28, 2007. During Little's employment, Mary Cote (hereinafter "Cote")

was SJM's Human Resources Manager. Cote provided Little with her new

employee orientation on June 20, 2006, and as part of orientation Little received a

copy of SJM's employee handbook. During her employment, Little was directly

supervised by Food Services Director Adaln Barrows (herei nafter "Barrows")

and Assistant Food Director Till N. Bookataub (hereinafter "Bookataub"). As tIle

Assistant Food Director, Bookataub had some supervisory authority over the

cooks and food service workers, however Bookataub had no authority to fire,

} [n response to SJM's motion for summary judgmcnt. Little filed a two paragraph affidavit signed on February 9_ 2010. The affidavit will be disregardcd because it contradicts former testimony. see Schindler v. Nilsen, 2001 ME 58 ~ 9. 770 A.2d 638. 641-42 (stating that a pat1y may not submit an affidavit attempting to create disputes of fact by making statements contrary to that party's prior testimony), and because it is unsworn, in violation of M.R. Civ. P 56(e). which requires affidavits submitted in support of summary judgment to be sworn or certified.

2 discipline, or take other actions that might affect the terms and conditions of

employment of the cooks and food service workers, including Little. Little

understood that she vvas to go to Barrowscl or Bookataub with any complaints

ilbout her job. Also during Little's employm.ent, Filith Stilphen (hereinafter

"Stilphen") was SJM's Director of Nursing. Stilphen did not supervise Little, but

she was a supervisor of other departments at SJM, and testified during her

deposition that she felt she had a duty to respond to possible violations of S]M's

sexual harassment policy.

At all rclevilnt times, Joe Mitchell (hereinafter "Mitchell") was a cook

supervisor at SJM. He did not supervise Little, except for when Little worked on

Thursdays as the spare cook. Mitchell did not have the authority to affect the

terms and conditions of Little's employment, nor did he exercise the authority to

hire or terminate any employee during Little's employment. According to SJM,

Mi tchell is gay, which SJM asserts was made known to Little during the first

week of her enl.ployment. Little argues that the evidence does not support that

Mi tchell is gay, and thClt his conduct rClises questions about whether he is

sexually interested in women.

SJM's employee hml.dbook contClins Cl seXltClI hilrClssmen t policy wi th clear

guidml.ce to employees who believe they hClve been subjected to harassment.

SJM's sexual harassment policy states that SJM "will not tolerClte any form of

sexual harassment by supervisors and co-workers." The "policy is intended to

prohibit offensive conduct, either physical or verbCll, that threatens human

dignity and employee morale, and which interferes vlith a positive ilnd

-IBarrows attended harassment/ sexual harassment training sessions provided by SJM to its supervisors on May 4, 2005 and on December 6, 2007. productive work environment." During Little's employment, SJM used a formal

grievance procedure, which instructed employees to direct issues involving their

employnicnt to Cote's department in writing. SJM's sexual harassment policy

states: "Supervisors and managers are responsible for monitoring behavior

which can be construed to be harassment and for initiating necessary action to

eliminate such behavior." Under the policy, any SJM employee who feels that he

or she is a victim of sexual harassment may immediately report the matter to his

or her supervisor, or the Human Rights Director. The policy further states that

SJM "will immediately investigate any complaints of sexual harassment and

where warranted, take disciplinary action against any employee engaging in

sexual harassment."

1. Mitchell's Conduct

In July of 2006, Mitchell gave Little a handwritten note to give to her

boyfriend George Asali, whom Mitchell had never met. In the note, Mitchell

wrote "George - Bring me home some good Shiraz [and1 I'll stop doing Trudy in

the cooler! She likes to finger my ass! Then smell it! Love Joey." (Little Depo,

Ex.4). Little did not discuss this note with Stilphen and Barrows more than one

time. After the first note, Mitchell sent Little several text messages." Some of the

text messages included sexual content, such as "Trudy has big ones, takes up the

whole kitchen;" "Send me a pic of your tit;" and "Did Serri in the middle room

twice." The only co-worker Little told about the text messages was Sherry

Poitras, who is not a supervisor. Little never discussed or showed Mitchell's text

messciges to any SJM supervisor. A couple of months after the first note, Mi tchell

5 The parties dispute ho\v many of the text messages were work related, and how many were sex-specific.

4 gave Little another note to give to George in which Mitchell bragged about

masturbating at work. (Little Depo, Ex. 5). Little never showed this note to

anybody at SJM.

In December 2006, Mitchell gave Little a Christmas card to deliver to her

adult son, in which Mitchell claims to have had sex with Little t\vice. (Little

Depo, Ex. 7). Little testified tbat when she confronted Mitchell about the

Christmas card and told him that she did not appreciate it, Mitchell responded

by saying "it's a fucking joke, Trudy." Little testified that she complained to

Stilphen about the note Mitchell sent to George and the Christmas card. Little

testified that she had several conversations with Stilphen about Mitchell's

inappropriate conduct, although she does not recall exactly how many. Stilphen

felt that Barrows, as Little's supervisor, needed to known about the Christmas

card. Stilphen reported to Barrows that Little was upset by the card, and made it

clear that there were sexual connotations to it. Stilphen offered to be prese~1t

with Barrmvs when Barrows met with Mitchell about the card, however Barrows

declined saying that Mitchell was on vacation and that he would speak with both

Mitchell and Little. Barrows testified that after speaking with Stilphen about the

Christmas card he did not do anything to look into the issue. Stilphen testified

that vvhen she followed up with Barrows about the card, Barrows told her he had

taken care of the issue.

SJM claims that Little did not say anything about this card to anyone at

SJM other than Mitchell and Stilphen. Little testified that Bookataub also knew

about the card. SJM claims that when Stilphen "checked in" with Little following

discussions about the Christmas card, Little assured her that things were fine.

Little denies ever assuring Stilphen that "things were fine". The parties dispute

5 the nurnber of sex-related notes Mitchell gave to Little, but Little estimates that

there were three to four additional sex-related handwritten notes, although Little

does not remember exactly what they said. SJM argues, and Mitchell testified in

his deposi tion, that Mitchell wrote the notes and text messages as a joke and that

Little encouraged him to write notes that were bizarre to make her boyfriend

laugh.

In addition to the text messages and handwritten notes, Mitchell made

comments directly to Little about her breasts and breast size, and made other

commcnts that had sexual connotations that Little thought were offensive and

hurtful. On one occasion at the end of a meeting and in the presence of

supervisors Bookataub and Barrows, as Little stood up to leave Mi tchell fell back

and said "get those fucking things out of my face, Trudy," referring to Little's

breasts. Little claims that this made her extremely embarrassed. Barrows was

prescnt when Mitchell made this remark at the meeting, and he perceived that

Little and Mitchell were laughing and joking around. He responded by telling

Little and Mitchell "that's enough." Bookataub testified that she heard Mitchell

make sexual comments to Little, including comments about Little's breasts.

Bookataub did not take any action in response to Mitchell's comments to Little

because she perceived tl1at Mitchell and Little were joking. Bookataub also

testified during her deposition that two or three times Mitchell commented on

her (Bookataub's) breasts if she ,vas wearing a revealing top.

Little states that Mitchell referred to her as "ugly" "all the time." On one

occasion, Little was excited about getting contact lenses, and Mitchell said to her

"Don't bother, Trudy, you can't hide ugly." On another occasion, Little came to

work with her daughter-in-law and two grandchildren to show them where she

6 worked, and in the presence of ller farnily, Mitchell came by and commented to

Little that she was still ugly. S]M disputes the frequency with \vhich Mitchell

called Little ugly, pointing out that Little was only able to support this assertion

with evidence of two instances in which Mitchell referred to her as ugly.

Little complained to Barrows about lvfitchell calling her ugly when she

was getting contact lenses. Little testified that Barrows confronted Mitchell in

her presence over the incident, and that Mitchell declared, "fuck her if she can't

take a joke ... I call it as I see it, Adam." Little testified that in response Barrows

did not say anything to Mitchell and returned to his office, leaving Little

embarrassed. Little also testified that Barrows was present when Mitchell called

her ugly in front of her family, and then when Barrows confronted Mitchell,

Mitchell again responded, "fuck her if she can't take a joke."

Barrows tells a different story. Barrows testified that he was not present

when Mitchell called Little ugly after she announced she was getting contact

lenses. Barrows stated that Little did report this incident to him, but that she did

not want Barrows to address Mitchell about the situation. Barrows told Little

that he would pay attention to Mitchell and address the issue with him if it ever

happened again. Barrows stated that when Little brought her grandchild to SJM,

he overheard Mitchell say "how can someone so ugly produce a beautiful baby

like that." Barrows claims that Little laughed in response, and that when Little

left, he confronted I\1itchell and told Mitchell his comment was inappropriate.

Barrows stated that Mitchell responded by saying he was kidding.

According to Little, Mitchell frequently made comments to her and others

about his genitals and about their sexual activity. According to Little, on one

occasion Mitchell was upset with Nadine Nyder, a female a co-worker, so in

7 Little's presence, Mitchell took Nyder's coffee cup, stuck his hands down his

pants, and then rubbed his hands on the lip of the co-worker's cup. Little

testi bed that when she told ~/li tche11 what he did was horrible, Mi tchell

responded with laughter. Little testified during her deposition that on four to

five occasions, Mitchell told Bookataub that he would love to go to bed with her.

Little acknowledges that Mitchell's comments to Bookataub ,,,,'ere part of an on­

going banter. h DeL's Response to Pl.'s SAMF, err 26 citing Little Dep. p. 131.

However, Little testified that these comments made her feel uncomfortable

beG1USe the sexual topics were inappropriate for the workplace. (Little Oep. pp.

131-132). SJM claims that Mitchell referred to his genitalia at work only once

while Little was employed by SJM. In April or May of 2007, Sue LaRoche, the

cook supervisor for the evening shift, complained to Barrows that ~1i tchell was

(, The following questions and answers are from Little's deposition. Q (Attorney LaMourie): They - they saw Mr. Mitchell - they saw this­ they saw his behavior in connection with you every day? Is that your testimony? A (Little): Not necessarily with me, in particular. They did see a lot that was to do with me. But his behavior on a daily basis in front of the bosses was never - they never did anything. [t was accepted. [t was accepted behavior. He used to say to Jill [Bookataub 1, I'd love to go to bed \\lith you tonight or - and she'd give it right back. Why would [ say something to these people if they were involved in it? Q: So Mr. Mitchell used to say that to Jill? A: To Jill, yeah, all the time. Q: I low often did you hear him make that comment? A: Probably four or five times. Q: And how - how would she respond? A: She'd laugh and say, come on, Joe, Jet's go 01'­ Q: Did you ever say to Jill that it made you uncomfortable to hear those comments? A: No. What would be the point. She thought they were funny. You know [ had already complained to Adam, which I'm sure he told Jill. They all just thought 1 was - couldn't take ajoke. Little Del' .. 13 I :4-23.

8 talking about his penis and/ or erection while at work. Tn response Barrows

spoke to Mitchell and Mitchell apologized.

Little had troubles with anxiety and panic attacks. She claims that

Barrows and Stilphen were the only people she told about her panic disorder at

SJM. Li ttle testi fied that a few days before giving her notice of resignation,

Barrows called Li ttle into his office because she seemed more nervous and Li ttle

told Barrows of her panic attacks. Little further testified that Mitchell made her

panic disorder worse. According to Little, the day after she spoke with Barrows,

she went to work and Mitchell got in her face and asked "how her mental

condition was." Little stated that Mitchell then \vent to people \-vhom she

supervised and told them to be nice to her tonight because she is crazy_ Little

believes Mitchell learned of her panic disorder through Barrows. Little states

that she had to leave her job at SJM because of Mitchell's harassment, and

because Barrows told Mitchell about her panic disorder. Little says a few days

after leaving her employment at SJj'vf, Mitchell called her to ask why she left.

Little testified that she told Mitchell that Barrows disclosure of her medical

condition was the last straw and that she could not continue to work with

Mitchell.

Barrows testified that Little had discussed wi th him having anxiety on

severe,l occClsions. Barrow clClims that he never told Mitchell abou t Li ttle' s anxiety

disorder. Mitchell testified that he knew about Little's anxiety because they got

along and shared things with each other. Mitchell says that Little told him

shortly after she started at SJM that she suffered from anxiety and a panic

disorder. Additionally, Mitchell testified that when he spoke with Li ttle on the

9 phone after she left SJM, Little told hinl she quit because she could not stand

Barrows or Bookataub.

2. Co-Workers' Observations of Little and Mitchell and Co-Workers' Interactions with Mitchell

According to SJM, at least five SJM employees recall that they observed

Mitche1l and Little talking, teasing, and joking with each other on numerous

occasions, and that Mitchell and Little appeared to be friends and acted friendly

towards each other. According to Barrows, he often observed Li ttle and Mi tchell

laugh and share jokes, and he perceived that they were friends. Bookataub

testified that she never observed Little seem uncomfortable in Mitchell's

presence, nor did she get any indication that Mitchell's conduct toward her was

unwelcome. Stilphen also testified that she had the impression that Mitchell and

Little got along. Little claims that she and Mitchell were not friends, and that she

complained to Mitchell and made complaints to management about his conduct.

According to SJM, Mitchell's other co-workers, both male and female, got along

with him and had no problems or issues with him at work, and Mitchell was

helpful to Little and to all the other male and female employees who worked in

the ki tchen at SJTv'L

Mitchell testified during his deposition that he did not think his actions

were hurtful or offensive. Mitchell stated during his deposition that he got along

with Little. He stated that he interacted with Little in the manner he did because

they were friends who joked with each other.

3. Notice of Complaint

According to SJM, during Little's employment at SJM, SJM's Director of

Human Relations Mary Cote spoke with Little and interacted with her on many

10 occaSlOns. Cote stated that Little never made any verbal or written complaints to

her about Mitchell. Cote also stated that no employee ever brought a complaint

to her clttention involving inappropriate behavior by :tv1itchell directed at Little.

During Little's employment, Cote was never shown any documents, notes, or

records written by Mitchell that were given to Little. According to Cote, Little

did not utilize the complaint procedure set forth in SJM's employee handbook

pertuining to sexuul harassment. Cote states that she first learned of Little's

complaints about Mitchell when she received a copy of Little's filing with the

Maine Human Rights Comrnission after Little had resigned. Cote began her

investigation immediately after she received a copy of the filing. Cote did not

become aware of the handwritten notes Mitchell gave to Little until after copies

of them were provided to the Maine Human Rights Commission, at which point

she took action to investigate them. Cote states that her investigation concluded

that Mi tchell' s other co-workers perceived Mitchell and Li ttle were friends, and

none of the co-workers felt that Mitchell engaged in behavior that created a

sexually hostile work environment. Following Cote's investigation, Mitchell was

subject to disci plinary action.

Barrows testified that during Little's employment he heard that Little had

complaints about work, und that he responded by "checking in" with Little on

four or five occasions. Barrows used these "check-ins" as an opportunity to see

how Little was doing and to give her an opportunity to share any specific issues

she might be having at work. Barrows testified that during these "check-ins"

Little told him she was unhappy with her job. Barrows observed that Little never

seemed uncomfortable in Mitchell's presence, and that he never sa\v Little object

to anything Mitchell said or did, with the exception of a time vvhen Mitchell

11 called Li ttle ugly. Barrows testified that at no time did Little complain to him

that Mitchell was a cause of her anxiety.

In contrast, Little states that Barrows received frequent notice that

Mitchell was sexually harassing her. Little further responds that she did use the

S]M's procedure for reporting sexual harassment claims because she complained

to supervisors - Stilphen and Barrows - about the notes, the Christmas card, and

Mitchell's conduct. Little testified that a few days before she left her

cmployrnent she told Barrows that Mitchell's harassment was exacerbating her

panic disorder. She further points out that Barrows testified that it was his

responsibility under SJM's procedure to pass notice of possible sexual

harassment to Cote. Little claims that if Barrows followed SJM's procedure, then

Cote knew / should have known about her complaints about Mi tchell's conduct,

and about the notes when Stilphen and Barrows initially brought them to Cote's

attention. Little claims that Mitchell was disciplined following Cote's

investigation because the evidence establishes that he sexuall y harassed her.

Little never: (1) wrote down her concerns about Mitchell's behavior in

order to share them with anyone; (2) asked anyone at S]M if her shift could be

changed so that she would not have contact with Mitchell; (3) asked anyone at

SJM if she could move her work station away from Mitchell; (4) never talked to

Bookataub about Mitchell's behavior, or told Bookataub that Mitchell's conduct

made her feel unco1l1fortable; and (5) never showed Bookataub any notes or

documents that she had received from Mitchell. Additionally, no other S]M

employee approached Bookataub to report or complain about Mitchell's

behavior directed at Little.

12 lj ttle' s resignation letter was left in Barrow's mailbox on Ju ly 28, 2007.

(Little Depo, Ex. 6)? While the resignation note refers to Mitchell, it milkes no

allegation of misconduct by him. Little did not meet with Cote in advance of her

rcsignZltion for any reason. Barrows claims that Li ttle made no attempt to give

him notice that she intended to Cluit her job: Little also never gave Bookataub

notice that she would be leaving. Additionally, Stilphen testified that Little

never gave her a reason for leaving her employm.ent, except that she wc1llted to

"vork where it was air conditioned. In contrast, Little testified that she met with

Barrows and gave him three days notice. Little states that she told Stilplwn the

last straw occurred when Barrows told Mitchell of her anxiety disorder, and

Mitchell made fun of her medical condition. Little decided to file a charge of

harassment against SJM approximately three weeks after she resigned, because

her sisters encouraged her to do so.

DISCUSSION

1. Standard of Review

In a motion for summary judgment, the court views the evidence in the

light most favorable to the nonmoving party to decide whether the parties'

statements of material facts and the referenced record material reveal a genuine

issue of material fact. Rogers v. JacksolZ, 2002 ME 140, err 5, 804 A.2d 379, 380

(citations omitted). The court gives the party opposing summary judgment the

benefit of any inferences that might reasonably be drawn from the bcts

presented. ClZrtis v. Porter, 2001 ME 158, err 9, 784 A.2d 18, 22. If the record

7 The resignation letter states: --I really hate to do this to you guys, but 1 feel I have no alternative. My "condition" as .foe [Mitchell] so eloquently put it, is getting too much for me to handle right now. I can't seem to control it this time. so I have found a part time job with a lot less stress ... -,

13 reveals no genuine issue of material fact then sumrnary judgment is proper. Id.

at

A contested fact is "material" if it could potentially affect the outcome of

the sui t under the governing law. 171kel v. LiviJZf{StOIl, 2005 ME 42, ([ 4, 869 A.2d

745, 747. A fact is "genuine" if there is sufficient evidence supporting the

claimed fact to require a fact-finder to choose between competing versions of

facts at trial. ld. For the purposes of summary judgment, factual disputes and

ambiguities 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. Rodrif{ue v. Rodrigue, 1997 ME 99, 9[ 8, 694

A.2d 924, 926. A defendant moving for summary judgment has the burden to

assert those elements of the cause of action for which the defendant contends

there is no genuine issue to be tried. Corey v. NOr/l1f7ll, Hmzsoll [-t OeTroy, 1999 ME

196, 9[ 9, 742 A.2d 933, 938. "A party seeking summary judgment always bears

the initial responsibility of informing the ... court of the basis for its motion." Id.

citillg Cclotex Corp. v. Cntrett, 477 U.s. 317, 323, 106 S. Ct. 2548 (1986).

2. Sex Based / Gender Based Discrimination and Sexual Harassment

Count I of Little's Complaint is pled as sex/ gender based discrimination

in violation of the Maine Human Rights Act (hereinafter "MHRA").H

x The Maine ~IlIman Rights Act prohibits employment discrimination on the basis of sex and physical or mental handicap as follows: It shall be unlawful employment discrimination in violation of this Act ... A. For any employer to fail or refuse to hire or otherwise discriminate against any applicant for employment because of ... sex, sexual orientation, physical or mental handicap . . . or because of any such reasons to discharge an employee or discriminate with respect to hire, tenure, promotion,

14 Hmvever, in their summary judgment briefs the parties treat Count 1 as a "hostile

sexual environment harassment" claim. (PI's Opp. to Oef.'s M. for Summ.]. at 3).

Because the facts in the record do not support a claim for gender-based

discrimination,9 the court addresses Little's claim as a claim for sexual

harassment.

S]M argues that it is entitled to summary judgment on Little's sex/ gender

discrimination claim "because Little has advanced no evidence to demonstrate

she was subjected to harassment based upon or because of her sex and cannot

establish a basis for employer liability." (Oef.'s Mot. for Summ. J. at 4). The

MHRA authorizes employment-related claims of sexual harassment based on a

hostile work environment. See 5 M.R.S. § 4572(1)(A); see also Watt v. UII(first Corp.,

2009 ME 47, 9I 22, 969 A.2d 897, 902-03 (stating that both the federal Ci viI Rights

Act and the MHRA recognize unlawful employment discrimination based on

sexual harassment sufficiently severe or pervasive to create a hostile work

environment). 10 To succeed on such a claim, the First Circuit has required that,

pursuant to the MHRA, a plaintiff must demonstrate:

transfer, compensation, terms, conditions or privileges or employment, or any other matter directly or indirectly related to employment. ... 5 M.R.S. § 4572( I )(A). () Generally in an employment discrimination claim based on gender, the plainti fr must make a prima facie case that shows disparate treatment between men and v./omen. lv[aine Human Righls C0I11111 'n v. Dep 'I aj'Corrections, 474 A.2d 860, 865 (Me. 1(83). In such cases. the plaintiff makes a prima facie showing of disparate impact "where an employer's practice (such as a written or oral test, or a particular job requirement) is t~lCially neutral but in fact affects more harshly one group than another." ILl. citing Maine Human Riglhs COI11I11 'n v. Auhurn, 408 A.2d 1253. 1264 (Me. 1979).

10 It is appropriate for the court to look to analogous federal case law for guidance in the

interpretation of the Maine Human Rights Act. See Bowen v. Dep 'I ofHUll IOn Sen's., 606 A.2d 1051, 1053 (Me. 1992). In Moine Human Righls CO/11/11 'n v. Loco/ 1361, Me., the

15 (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 severc or pervasive so as to alter the conditions of plaintiff's employment and create an abusive vvork environment; (5) that sexually objectionable conduct was both objectively and subjectively offensive, such that a reasonable person would find it hostilc or abusive and the victim in fact did perceive it to be so; and (6) that some basis for employer liability has been established.

Wntt, (1122,969 A.2d at 903-02. "For sexual harassment to be actionable, it 111.Ust

be sufficiently severe or pervasivc, 'to alter the conditions of [the victim's]

employment and create an abusive working environment."' Mentor Snv. Bnnk,

FSB v. Vinson, 477 U.S. 57, 67 (1986) (alteration in original) quoting HellSOIl v. City

(~f DIIlldee, 682 F.2d 897, 904 (11 til Cir. 1982); scc nlso BOWCll v. Dep't of HIII/lnll Servs.,

606 A.2d 1051 (Me. 1991).

The inquiry in a sexual harassment hostile work environment claim is fact

intensive. A hostile work environment claim requires an examination of "all the

circumstances, including the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee's work

performance." Doyle v. Dep' t ~f HIl771nll Servs., 2003 ME 61, ~ 23, 824 A.2d 48, 56

(quotation marks omitted). Whether the conduct is so severe as to cause the

environment to become hostile or abusive is left to the determination of the trier

of fact. Nndenll v. T<.ni71bmu Rugs, I7Ic., 675 A.2d 973, 976 (Me. 1996). Even if a

hostile work environment exists, an employer may evade liability if "it exercised

Law Court noted that "structural and linguistic similarities" between the Maine I-Iuman Rights Act and the federal Civil Rights Act suggested ··the employment discrimination provisions in [the MHRA] were intended to be the state counterparts of the Federal Act. 383 A.2d 369 (1978). The Law Court concluded that decisions by federal courts interpreting the federal statute provided significant guidance in the construction of Maine's statute. lei.

16 reasonable care to prevent and correct" the alleged harassrnent and if the

plaintiff "unreasonably failed to take advantage of" the employer's preventative

or corrective measures. Scc Famgllcr v. City of Bom Rato/l, 524 U.s. 775, 807 (1998).

Generally, a "hostile environment harassment claim involves a pattern of

inappropriate conduct, [however] there is no requirement that harassnlent occur

more than one time in order to be actionable." Nadcflll, 675 A.2d at 976. For

example, in Nadeal/ the Law Court found support for a sexual harassment claim

when an employer offered money for sex to an employee on one occasion, left

the offer on the table, and requested that the employee subsequently lie about

their interactions to employees. [d. In contrast, vulgar and inappropriate

language alone has been found insufficient to support a sexual harassment claim.

Sce Fontal/ez-Nul/ez v. [al/scscl/ Ort/w, LLC, 447 F.3d 50, 57 (lst Cir. 2(06) (where

the court found that a co-worker's vulgar language and behavior was

inappropriate in the workplace and completely unprofessional, but that the

conduct was not related to the reasons the plaintiff's employment was

terminated and did not unreasonably interfere with or alter the plaintiff's work

conditions).

a. Mitchell's Harassment Was Based on Sex

It is undisputed that Little is a member of a protected class because she is

a female and she claims she was subjected to sexual harassment in the

workplace. The court now addresses whether Little was subject to unwelcome

sexual harassment based on sex. Citing Ol/mlc v. SUlIdowl/er O.fJsllOre Scrvs., S]M

claims that Little cannot show that Mitchell's conduct ,vas based on sex. Ol/mlc,

523 U.s. 75, 80-81 (1997). SJM claims that the fact that Mitchell is gay (a fact

Little disputes) precludes Little from making the inference that Mitchell's

17 statements were motivated by a sexual desire, and SJM further claims that Little

cannot show that Mitchell's conduct was based on some general hostility toward

the presence of a \'\1oman in the workplace. Oncale, 523 U.s. at 80-81.

The court disagrees. In Oncale, the u.s. Supreme Court held that same-sex

sexual harassment in the workplace was actionable under Title VII of the Civil

Rights Act. Ollcale, 523 U.s. at 79 citing 42 U.s.c. § 2000e-2(a)(1). The core of the

Supreme Court's holding in Oncale can be broken into two prongs: A p1J.inti ff

alleging sexual harassment needs to show that (1) the discrirnination was

"because of sex," II and (2) that the harasser's conduct was so objectively

offensive as to alter the conditions of the victim's employment." Oncale, 523 U.s.

at 81. The fact that Mitchell may be gay and that Little is a female has no bearing

on whether Mitchell's conduct may be considered sexual harassment. The Oncale

court held that sexual harassment does not need to be motivated by a sexual

desire and may involve members of the same sex. Oncale, 523 U.S. at 79. As the

U.S. Supreme Court acknowledged in Oncale, the "many facets of human

rnotivation" make it nearly impossible to establish conclusive presumptions

about discriminatory acts. Oncalc, 523 U.s. at 78. A plaintiff in a sexual

harassment case may show that harassment was because of sex by offering

"comparative evidence about how the alleged harasser treated members of both

sexes in a mixed-sex workplace." Oncalc, 523 U.s. at 80-81.

Whether Mitchell's conduct was discriminatory because of sex is an issue

of fact. SJM argues that there is no evidence that Mi tchell treated men and

II The Supreme Court's conclusion was supported by the broad language ot'Title VIr of

the Civi I Rights Act which prohibits "discrimination ... because of ... sex" in the terms or conditions of employment. Jd. citing 42 U.S.c. § 2000e-2(a)(]). This language is similar to the language of the MI-lRA.

]8 women differently, and there is no evidence that other female employee found

rvti tchell's conduct created a sexually hostile environment. However, the

evidence suggests that Mitchell discriminated because of sex because he onl y

targeted women with his conduct. Aside from the fact that Mitchell gave notes

to Little to deliver to her boyfriend, and gave a Christmas card to deliver to her

son, there is no evidence that Mitchell targeted men with his conduct. Moreover,

it appears that the content of one of the notes (Li ttle Depo, Ex. 4) and the card

aimed to embarrass Little. [n addition to harassing Little, the evidence shows

that Mitchell also directed his comments toward Bookataub, Sherry Poitras, and

Sue LaRoche, and possibly towards Nadine Nyder. This pattern of conduct

directed at female co-workers suggests that Mitchell's discriminatory conduct

was because of sex.

b. Mitchell's Conduct was Both Objectively and Subjectively Offensive

The sexually objectionable conduct must be both objectively and

subjectively offensive - such that a reasonable person would find it hostile or

abusive, and the victim did in fact perceive it to be so. Sexual harassment "can

take a 111yriad of forms including everything from excessive sexually-oriented

"joking to demands for sexual favors." Mail/c Statc Acadcmy of Hair Dcsigl/ v.

COlIl/llereia[ Ullioll II/s. Co., 1997 ME 188,

draw the fine line between tasteless jokes and sexual harassment. The MHRA,

like the federal Civil Rights Act, is not intended to provide a general civility

code. Ol/ca[c, 523 U.s. at 81, 118 S. Ct. at 1002. The U.S. Supreme Court's analysis

of Title VII of the Civil Rights Act provides guidance:

Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at "discrimi7latio7l ... because of ...

19 sex." We have never held that workplace harassment, even harassment betvveen men and women, is automatically discrimination because of sex merely because the words Llsed have sexual content or connotations.

Ol/cn/c, 523 U.s. at 80, 118 S. Ct. at 1002. The requirement of an objectively hostile

and abusive work environment "ensurefs] that courts and juries do not mistake

ordinary socializing in the workplace - such as male-on-male horseplay or

intersexual flirtation - for discriminatory condi tions of employment." 01lc(1/c,

523 U.s. at 81, 118 S. Ct. at 1003. There is no question that Li ttle was subjected to

conduct that was objectively offensive. Mitchell gave Little two notes to deliver

to her boyfriend and a Christmas card to deliver to her son, which alleged he

engaged in sexual acts at the workplace with Little; he sent Little a text message

commenting on the size of her breasts and another text message requesting a

picture of her breasts; he made comments at work about Little's breasts; he

talked about his genitals and other peoples' sexual activity at work; and he called

Little "ugly."

Whether Mitchell's conduct was subjectively offensive to Little and

altered Little's work environment is an issue of fact. SJM points out that co­

workers observed Little's and Mitchell's relationship as friendly, and that they

would joke and tease each other. According to SJM, Mitchell's conduct was

simply sexual banter, and was not harassment. The fads show that Little never

requested to have her hours or work station changed to avoid Mitchell.

However, Little disputes SJM's characterization of her relationship with Mitchell,

claims they were not friends, and that she had complained about Mitchell's

conduct to Barrows and Stilphen. She claims that Mitchell's conduct contributed

to her panic disorder, and was ultimately the reason she left her employment at

20 SJM. \Vhether Little's work environment was altered remains a question for the

Jury.

c. Employer Liability

SJM argues that it should not be liable because there is no evidence from

which a reasonable jury could infer that SJM management had notice of the

harassment Little alleges. (Def.'s M. for Summ. J. at 9). Tn Wntt v. Uilifirst Corp.,

the Law Court adopted the regulation issued by the Maine Human Rights

Commission governing employer liability for the acts of co-workers. Wnff, 9[ 26,

969 A.2d at 904 citing 11 C.M.R. 94348003-6 § 3.06(1)(3) (2007). Under that

standard "employers may be liable for the sexual harassment of an employee by

a co-worker or workers under a hostile environment claim where the employer

kncw or should hnvc kllOWll of the charged sexual harassment and failed to take

immediate and appropriate corrective action." Wnff, 9I 27, 969 A.2d at 904

(emphasis added). Under SJM's sexual harassment policy, employees may file a

formal grievance with the SJM's Human Rights Director, or they may report

suspected sexual harassment to a supervisor or the Human Rights Director.

Addi bonally, the policy provides that "[s]upervisors and managers are

responsible for monitoring behavior which can be construed to be harassment

and for initiating necessary action to eliminate such behavior."

Whether SJM had notice of Mitchell's harassment towards Little is a

question of fact. The evidence shows that Little (1) never made a formal

complaint to Cote, the Human Rights Director, (2) never made a complaint in

writing, and (3) never talked to Bookataub about Mitchell's conduct.

Addi tionally, Barrows"checked in" wi th Li ttle on several occasions and he

testified that Little never objected to Mitchell's conduct, with the exception of

21 calling her "ugly." However, the evidence also shows that Stilphen and Barrows

were both avvare of the Christmas card, and that Barrows never follmved up with

Mi tchel1 abou t the card even though Stilphen told him Little had complained to

her. The evidence also shows that Bookataub and Barrows witnessed Mitchell

comment on Little's breasts, that Barrows was aware that Mitchell had caned her

"ugly," and that Bookataub also was subjected to Mitchell's conduct, even if she

perceived it to be a joke. A reasonable juror could find that under these

CirCU1l1stances the S]M's supervisors knew or should have known of Mitchell's

conduct.

3. Constructive Discharge Claim

The test for a constructive discharge claim is whether a reasonable person

facing such unpleasant workplace conditions would feel compelled to resign.

King v. Brlllgor Fed. Credit Ullioll, 611 A.2d 80,82 (Me. 1992). If there is no hostile

work environment there is no constructive discharge. See Miller v. E. Maille

Medicnl Or., Mem-09-169 (Oct. 13, 2009) citing Pa. State Police v. Sliders, 542 U.s.

129, 147 (2004) (noting that facts that cannot support a hostile work environment

claim cannot support a claim for hostile environment constructive discharge).

Accordingly, the fate of this claim hinges on the outcome of the sexual

harassment hostile work environment claim.

4. Disability Discrimination / Harassment Claim

Count IV of Little's Complaint alleges disclosure of confidential medical

information in violation of the MHRA and the Rehabilitation Act. Neither the

MHRA nor the Rehabilitation Act appear to provide a cause of action for

disclosure of confidential information. S]lvi addressed Count IV as a claim for

disability discrimination. It appears that Little has abandoned her claim under Count IV because she has failed to counter SJM's motion for summary judgment

on this claim.

If Count IV were construed as a claim for disability discrimination, it is

insufficient to survive sU1T1mary judgment. In order to make a claim that she was

subjected to harassment based on her disability under the ADA or tIle iVIHRA

Little must show that (1) she was disabled, (2) she was subjected to a hostile

work environment and (3) that the hostility was directed at her because of her

disabili ty. Quiles-Quiles v. Henderson, 439 F.3d 1,5 (lst Cir. 2006). To establish a

hostile work environment based on her disability, Little must show that she was

subjected to "repeated or intense harassment sufficiently severe or pervasive to

create an abusive working environment." Doyle, 9I 23, 824 A.2d at 57. Among

the factors examined to determine whether an actionable hostile work

environment claim exists are the frequency and severity of the harassment and

whether it unreasonably interferes with the employee's work performance. [d.

Little stated during her deposition that Mitchell first learned about her

panic disorder only a few days before resigning. Even assuming Little \vas

disabled within the meaning of the MHRA the ADA or the Rehabilitation Act

her claim fails because she cannot show that Mitchell's conduct regarding her

panic disorder was severe, frequent or affected her work performance.

Additionally, there is no evidence that Little reported any incidents in which

Mitchell harassed her based on her disability before she decided to resign.

Therefore summary judgment is granted on Count IV of Little's Complaint. Therefore, the entry is:

Summary judgment is DENIED on Counts I, II, and III. Summary

judgment is GRANTED on Count IV.

Dated at Portland, Maine this 23 M day of ~ ,2010.

~

24 TRUDY LITTLE - PLAINTIFF SUPERIOR COURT CUMBERLAND, 88. Attorney for: TRUDY LITTLE Docket No PORSC-CV-2009-00330 GUY D LORANGER - RETAINED 06/04/2009 NICHOLS WEBB & LORANGER PA 110 MAIN ST., SUITE 1520 DOCKET RECORD SACO ME 04072

V8 SAINT JOSEPHS MANOR - DEFENDANT 1133 WASHINGTON AVENUE PORTLAND ME 04103 Attorney for: SAINT JOSEPHS MANOR MATTHEW J LAMOURIE - RETAINED 03/29/2010 PRETI FLAHERTY BELIVEAU PACHIOS & HALEY ONE CITY CENTER PO BOX 9546 PORTLAND ME 04112-9546

Attorney for: SAINT JOSEPHS MANOR ELIZABETH OLIVIER - RETAINED 03/29/2010 PRETI FLAHERTY BELIVEAU PACHIOS & HALEY ONE CITY CENTER PO BOX 9546 PORTLAND ME 04112-9546 STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION ~O~{

TRUDY LITTLE,

Plaintiff

v. JUDGMENT ..­

SAINT JOSEPH'S MANOR, 'L~tf)Ct~

,. Defendant I ~J ~ I

. FIj"' it"\, , '''.;'.' ::::. ~-;: BACKGROUND

On June 4, 2009, the plaintiff filed a four-count complaint and alleged sex

discrimination, count I; hostile work environment, count II; constructive discharge,

count III; and disclosure of confidential information, count IV. She based her

allegations on the Civil Rights Act, the Americans with Disabilities Act, the

Rehabilitation Act, and the Maine Human Rights Act.

On June 30, 2009, the case was removed to the United States District Court for the

District of Maine. The defendant filed a motion for summary judgment. The motion

was granted on all of the plaintiff's federal claims. On March 26, 2010, the case was

remanded to this court for the plaintiff's remaining state claims.

On July 23, 2010, this court issued an order on the defendant's motion for

summary judgment. The court determined that the facts in the record did not support a

claim for gender-based discrimination and considered the plaintiff's claims in counts I

and II as one for sexual harassment based on a hostile work environment. (MSJ Order

at 15-16.) The court determined that the plaintiff was a member of a protected class and

that she was subjected to conduct that was objectively offensive. ago at 17, 20.) The court determined that the remaining requirements for the plaintiff's claim for sexual

harassment based on hostile work environment were questions of fact. ag. 18, 20-22.)

The court further determined that the allegations of constructive discharge in

count III could not be considered absent a determination of the sexual harassment

hostile work environment claim. The court granted the defendant's motion for

summary judgment on count IV of the plaintiff's complaint.

Jury-waived trial was held on December 14-15, 2010. The court has considered

the evidence, including the testimony of the plaintiff's eleven witnesses, the defendant's

three witnesses, the parties' stipulations, the parties' exhibits, the LaRoche and Witmer

depositions, and the defendant's interrogatory answer #20, read into the record,

plaintiff's exhibit 17.

FINDINGS

In 1999, the plaintiff was diagnosed with anxiety disorder with panic attacks and

began receiving disability benefits. l (Stip. <[ 12.) She has been on medication, which

helps her condition, since that time. She will take this medicine for the rest of her life.

The panic attacks are very difficult to endure. She shakes, her heart races and skips

beats, and she feels like she will die. She described her panic attacks as "torture." She

has learned techniques to deal with these panic attacks.

The plaintiff also has had difficult periods in her personal life. She was abused

by her father and aunt. She was abused also by her ex-husband, to whom she was

married for eleven years and who was arrested on several occasions for domestic

violence. (Def.'s Ex. 24 at 2-3.) She finally left her husband when he hit one of her

children and lived in a shelter for a period of time. ag. at 3.)

I The plaintiff's various Social Security records were admitted into evidence. (Def.'s Exs. 12-26.)

2 Because work serves as a distraction, the plaintiff tried to return to work. If she

is comfortable in her environment, she is able to work. She worked at a pizza store one

day per week. She was unemployed for three years because of her condition before she

began working as a cook at Ruski's in late 2001 or early 2002. (Stip. errerr 13-14.) She

worked two days per week up to six hours per day. (rd. err 13.)

The plaintiff applied for a job at the defendant, Saint Joseph's Manor (SJM), in

2006. The job included benefits, which were attractive to her. At this time, her anxiety

disorder was under control.

The plaintiff was employed by SJM from May 29, 2006 to July 28, 2007 as a cook

supervisor. The annual benefits provided by SJM totaled $8,101.93. (Pl.'s Ex. 17.) Based

on her last paycheck, she had earned $17,294.20 for 2007 when she left her employment

at SJM. (Pl.'s Ex. 14.)

At the beginning of her employment, the plaintiff received a general orientation

and the SJM policy handbook from Mary Cote, SJM's Human Resources Manager.

(Def.'s Ex. 2.) The plaintiff worked in the kitchen near Joe Mitchell, a cook supervisor at

SJM. (Def.'s Exs. 4, 31.) Their shifts overlapped four days per week; she worked from

11:30 a.m. to 8:00 p.m. and Mr. Mitchell's shift ended at 1:00 p.m.

Mr. Mitchell began working at SJM in 1982. He became a cook supervisor in the

early 1990s. He has no authority to hire or fire kitchen employees, such as the plaintiff.

He reports to Adam Barrows and Jill Bookataub.

Mr. Mitchell read but was not trained on SJM's sexual harassment policy. (Pl.'s

Ex. 1 at 3, errerr 2 & 10-11; DeL's Ex. 9.) He testified first that he did not understand that

he had any obligation to enforce the policy. He believed the administration and

management had to enforce the policy. He was then shown, during his testimony, the

language requiring supervisors' responsibility for "monitoring behavior which can be

3 construed to be harassment and for initiating necessary action to eliminate such

behavior." (Pl.'s Ex. 1 at 11.) He then testified that he did have a duty to make sure the

policy is followed but also stated it was not up to him to decide if there was a violation.

Instead, he would report to Mr. Barrows. He had never reported an incident of sexual

harassment at SJM. Ms. Cote also had to refresh her recollection of the reporting

requirements of the SJM sexual harassment policy while she was on the witness stand.

(Def.'s Ex. 9.)

According to Mr. Mitchell, the plaintiff and he discussed family, boyfriends, sex,

and the plaintiff's breasts. He agreed he made sexual comments but did not know if

they were offensive. He agreed he sent the texts to the plaintiff. (Pl.'s Exs. 2-7.) He did

not consider these texts a violation of the SJM policy. He agreed he told her the plaintiff

was ugly but testified that he did not say this in a mean way; he thought it was funny.

She laughed but he later learned she was really hurt. He agreed he might have said to

the plaintiff, "Fuck it. I call it as I see it." He agreed that he wrote notes to the plaintiff

and thought they were funny. (Pl.'s Exs. 8-10.)

Mr. Mitchell testified that the plaintiff called him her special little Joe-Joe, called

him "a fag," called him "pee-pee puffer," and swore frequently, using the "F word" often.

He testified that the plaintiff's response to the texts was, "my God, you are funny" and

her fiance's response to the note was that Mr. Mitchell was "a crazy shit.' (Pl.'s Exs. 8,

10.) Mr. Mitchell testified that the plaintiff discussed her son's penis size and said it

would be "awesome" and "funny" if Mr. Mitchell sent a card and underwear to her son.

Mr. Mitchell stated he received texts from the plaintiff but deleted them. He received

no notes from her.

No one from SJM discussed the notes with Mr. Mitchell while the plaintiff was

employed at SJM. After she left, management discussed his inappropriate behavior.

4 Mr. Mitchell was suspended for three days. He has received a total of three written

warnings during his employment at SJM. In retrospect, Mr. Mitchell testified that he

does not think his conduct was funny.

The plaintiff agreed that she and Mr. Mitchell engaged in banter but denied

sexual connotations. During her first week at work at SJM, she sprayed water around

her work area. Mr. Mitchell said to her, "you are so fucking stupid." As a result, she

felt hurt and stupid. She did not say anything because she did not know him. During a

thunderstorm, Mr. Mitchell threw his arms around the plaintiff and said he was

terrified of storms.

During the first weeks of her employment, there was no discussion between the

plaintiff and Mr. Mitchell about the plaintiff's fiance, George Asali, or her intimate life.

Eventually Mr. Mitchell began to engage in conduct the plaintiff found offensive. He

talked about sexual things to the plaintiff and others that she found inappropriate. He

folded an offensive and vulgar letter on wax paper and told the plaintiff to give the

letter to her fiance. (Pl.'s Ex. 10.) The plaintiff read the letter and was shocked and

began having problems with panic attacks. She showed the letter to co-worker Melissa

Libby, who was disgusted.

The plaintiff next showed the letter to Faith Stilphen, the SJM Director of Nursing

from 1997 to 2009. Ms. Stilphen advised the plaintiff to show the letter to Mr. Barrows,

the SJM Food Service Director and direct supervisor of the plaintiff and Mr. Mitchell.

The plaintiff spoke to Mr. Barrows about the letter and believed she showed him the

letter. She told him that she was offended and upset. She explained her panic disorder

to him and told him she was having a hard time dealing with the incident. Mr. Barrows

said he would take care of it.

5 The plaintiff knew Ms. Cote, who had conducted the plaintiff's orientation. The

plaintiff had never worked previously in any place that had a human relations

department. The plaintiff thought she should report the problems with Mr. Mitchell to

Mr. Barrows, her direct supervisor.

The next day, the plaintiff told Mr. Mitchell that she thought the letter was

disgusting. He replied that she could not take a joke and that the letter was a joke. She

continued to try to maintain a civil relationship with Mr. Mitchell because she had to

work with him.

During the next day, Mr. Mitchell inquired regarding the plaintiff's mental

condition. The plaintiff admitted she swore at Mr. Mitchell. He then told other SJM

employees to be nice to the plaintiff because of her mental condition. 3 She told him

again that his conduct was disgusting.

Mr. Mitchell gave the plaintiff another offensive letter and told her to give it to

Mr. Asali. (Pl.'s Ex. 8.) Once again, she read the letter and was disgusted. She had not

encouraged Mr. Mitchell to write letters. She did not complain to management because

nothing had been done about the first letter.

Just prior to Christmas, Mr. Mitchell gave a present to the plaintiff and a present

for her son, Scott. She thought that Mr. Mitchell's giving a present to her son was odd

but it looked like the boxes of chocolates Mr. Mitchell was giving everyone else. The

present was an offensive card and underwear. (Pl.'s Ex. 9.)

The plaintiff had discussed her son with her co-workers in general terms. The

plaintiff asked Mr. Mitchell what he was thinking when he sent the card. He replied

2 The plaintiff was not sure of the order in which the letters were given.

3 3 Mr. Mitchell testified that Ms. Stilphen and the plaintiff told him about the plaintiff's mental disorders. He agreed he could have said that people should be nice to the plaintiff because she is "crazy."

6 that he and Ms. Bookataub/ who was a member of management, thought it was funny

and it was a joke. The plaintiff complained about the card to Ms. Stilphen. Ms. Stilphen

agreed that the plaintiff complained to Ms. Stilphen about a Christmas card with sexual

connotations sent by Mr. Mitchell to the plaintiff's son. Ms. Stilphen determined that

SJM's policies required further action. She spoke to Mr. Barrows and told him what the

plaintiff had told her. Ms. Stilphen made clear that the plaintiff was upset and

embarrassed about the sexual nature of the card.s Mr. Barrows later told Ms. Stilphen

that he had taken care of the issue. During his testimony, Mr. Barrows did not recall

hearing about the card containing sexual references. He agreed that if he had, he would

have had a duty to investigate and pass the information on the Human Resources. He

did not recall seeing the card to plaintiff's son. Nothing was done by management

regarding this card.

Mr. Mitchell began telling the plaintiff she was ugly and that she could not "hide

ugly." She complained to Mr. Barrows that this was embarrassing and mean. Mr.

Mitchell then called her ugly in front of Mr. Barrows, who spoke to Mr. Mitchell and

told him to "knock it off." Mr. Mitchell responded that it was not his fault that the

plaintiff could not take a "fucking joke." He said he calls it like he sees it, he always has,

and Mr. Barrows knows that.

The plaintiff brought photographs of her children and grandchildren to show co­

workers. Mr. Mitchell showed the photos to others and asked them how someone so

ugly could have such good-looking kids and grandchildren. The plaintiff was

embarrassed by these comments.

4Ms. Bookataub did not testify. 5Mr. Barrows denied this conversation. In fact, Mr. Barrows had little recall of events at 5JM during the plaintiff's employment.

7 Mr. Mitchell referred to the plaintiff's breasts as big and told her she looked like a

"floozie." He told the plaintiff to get her breasts out of his face at a meeting in front of

other employees. Mr. Barrows witnessed this incident. Mr. Mitchell commented on the

breasts of others, including Ms. Bookataub.

Mr. Mitchell sent texts to the plaintiff two or three times per week. Some had

sexual connotations. (Pl.'s Exs. 2-6.) He once lay on the floor and said he would stick a

broom handle "up his butt."

Mr. Mitchell made a statement to Sue LaRoche regarding a penis. She

complained to Mr. Barrows and Ms. Bookataub. Ms. Bookataub told Mr. Mitchell to

stop. (LaRoche Dep. at 6.)

Mr. Mitchell sent a text about Sherry Poitras. (Pl.'s Ex. 7.) The plaintiff showed

the text to Ms. Poitras, who did not seem upset and stated, "that's Joe." He referred to

having sex with Ms. Bookataub in front of her and the plaintiff. Ms. Bookataub joked

about it and did not seem offended.

At some point, the plaintiff had a house-warming party. She put an invitation on

the wall for everyone at work. Mr. Mitchell attended the party. Neither the plaintiff

nor Mr. Asali confronted Mr. Mitchell about his conduct.

Several current employees of SJM testified, in general, that nothing amiss

occurred between the plaintiff and Mr. Mitchell and that he was a good person to work

with. Most of the SJM employees who testified appeared concerned about the

ramifications of their testimony. The court found Mr. Mitchell, in particular, to be not

credible and Mr. Barrows had either a selective memory or no memory at all regarding

the events at SJM during the plaintiff's employment.

In spite of that theme, some current employees' testimony supported the

plaintiff's allegations. Sally Butland worked with the plaintiff and Mr. Mitchell. Ms.

8 Butland did not hear the plaintiff make sexual comments at work or to Mr. Mitchell.

Ms. Poitras, a reluctant witness, was shown the letter from Mr. Mitchell to the plaintiff's

son. (Pl.'s Ex. 9.) Ms. Poitras was not surprised to see the letter based on the way Mr.

Mitchell joked at work. Herbert Dick did recall some sexual comment about the

plaintiff's son. Henry Witmer heard Mr. Mitchell call the plaintiff ugly but emphasized

Mr. Witmer has a "terrific" relationship with Mr. Mitchell. Amanda Irving recalled that

the plaintiff's feelings were hurt when Mr. Mitchell said she was ugly.

The plaintiff's level of anxiety increased and toward the end of her employment,

she was having panic attacks frequently. (Def.'s Ex. 24 at 1.) During one panic attack,

the plaintiff asked one of the cooks if she could arrive at work early to relieve the

plaintiff but the cook was unable to do so. At one point, the plaintiff thought she was

having a heart attack. She called one of the SJM nurses, who talked the plaintiff

through the episode. The plaintiff eventually was examined by a cardiologist to confirm

she was not having heart problems. (Def.'s Ex. 6.)6

Mr. Barrows called the plaintiff to his office and said that she was acting quiet

and nervous. She told him she could not deal with Mr. Mitchell's conduct and

statements any longer. Although she had learned techniques to deal with anxiety, she

collid not control her anxiety at this time.

Donna Correll, the plaintiff's sister and a credible witness, recalled the plaintiff

was very excited about the job at SJM. The plaintiff was doing well when she began the

job and, notably, was able to seek full-time employment. Ms. Correll recalled the

plaintiff calling several times about Mr. Mitchell's conduct, including the letters and the

6 Mr. Mitchell was not mentioned in the report of Dr. Haag, the cardiologist who examined the plaintiff on July 9, 2007. (Def.'s Ex. 6.) The plaintiff also did not discuss with Dr. Haag her grandson's illness and the problems with her tenants, which were other sources of stress in her

9 text messages. The plaintiff was upset and her panic attacks were becoming more

difficult. The plaintiff did not, however, follow her sister's advice and call her

supervisor after each incident.

Ms. Correll describes her sister as having suffered from anxiety all her adult life,

although she tried to keep it hidden. She was also someone who has allowed herself to

be treated poorly for her entire life.

Andrea Trynor-Kenney, a credible witness, is a good friend of the plaintiff. They

are each other's safe person when one is having a panic attack and have learned to talk

each other "off the edge." When the plaintiff began working at SJM, she was in the best

place Ms. Trynor-Kenney had seen the plaintiff in years. As the job continued, the

plaintiff called Ms. Trynor-Kenney regarding Mr. Mitchell's conduct. The plaintiff's

emotional state was disintegrating. Mr. Asali, also a credible witness, described the

plaintiff as a "basket case" at the end of her employment at SJ11. (See Def.'s Ex. 18.)

The plaintiff decided to leave her employment at SJM. She wrote a letter dated

July 28, 2007 to Mr. Barrows and Ms. Bookataub. (Pl.'s Ex. 11.) This was a difficult

decision for the plaintiff because she considers her employment at SJM to have been the

best job she ever had. She lost her benefits when she left. (Pl.'s Ex. 17.) Except for her

treatment by Mr. Mitchell, she liked her job, her co-workers, and the residents, although

she was unhappy about scheduling on occasion, as were most SJM employees. No one

from SJM management contacted her after she submitted her letter.

Ms. Cote learned of the plaintiff's difficulties at SJM when she received a letter

from the Maine Human Rjghts Commission. Ms. Cote testified the letter was vague and

she did not understand it. During her testimony, she was unwilling to state whether

life. She saw Dr. Hoag because she was in the midst of a panic episode and thought she was dying. The report, dated July 9, 2007, documents her increased anxiety and panic.

10 the information from the MHRC provided a basis for a violation of SJM's sexual

harassment policies. She testified that she needed more information to comment.

After her investigation, including discussions with Mr. Mitchell and other

employees, SJM determined that interaction between Mr. Mitchell and the plaintiff was

"mutual," although Ms. Cote was not aware of anyone, except Mr. Mitchell, who

substantiated that the plaintiff engaged in sexual discussions. During the investigation,

Mr. Barrows confirmed that the plaintiff complained about Mr. Mitchell's calling her

ugly. Because Mr. Barrows "was not clear" on the Christmas card issue, Ms. Stilphen

was consulted. Ms. Stilphen agreed the plaintiff had complained about the card and

Ms. Stilphen spoke to Mr. Barrows about the need to follow up. Ms. Cote testified that

she did not know that Mr. Barrows did not follow up on the card and that he said he

had followed up. In fact, Mr. Barrows testified he did not recall a conversation about

the plaintiff being upset about the card's sexual references and he did not see the card.

When asked whether Mr. Barrows violated the sexual harassment policy,

assuming he was told that the plaintiff was upset about the sexual references in the card

and did not follow up with the plaintiff or HR, Ms. Cote testified that she would not say

he violated the policy but that he did not follow the policy. This is a distinction without

a difference and illustrates the defendant's approach to the environment at SJM.

After leaving SJM, the plaintiff next worked at a restaurant, Bruno's as a cook in

August 2007. (Stip. err 1.) She could not do the work because of panic attacks. She left in

September 2007, reapplied for disability, and was evaluated by Christopher Muncie,

Psy.D? (Id. errerr 3-4; Def.'s Ex. 24.) She was approved for disability in December 2007

7 The parties stipulated that Mr. Mitchell was not mentioned in the report of Dr. Muncie's evaluation of the plaintiff on 11/5/07. (Def.'s Ex. 24.) The report provides that the plaintiff "stated that she recently had to leave her former place of employment in the end of June 2007 due to the increasing symptoms of panic." (Def.'s Ex. 24 at 1.)

11 based on anxiety related disorders with panic attacks. (Stip. <[<[ 5-6.) She was

unemployed until she returned to work part-time at Bruno's Restaurant in November

2008. (Id. <[<[ 4, 8.) She stopped working at Bruno's in June and July 2009 because of

tendinitis. (Id. <[ 10.) She returned to Bruno's in August 2009 and worked one day per

week, six hours per day. (Id. <[ 11.)

The plaintiff's adjusted gross income for calendar year ending 12/31/07 was

$17,294.00. (Id. <[ 2; DeL's Exs. 10-11.) Her adjusted gross income for calendar year

ending 12/31/08 was $1,034.67. (Stip. <[ 9; DeL's Ex. 10.)

Her current job at Bruno's Restaurant is hard work. The open kitchen is in plain

view of the public. She cooks now for the public, which is more stressful to her than the

SJM work. She eventually wants to work full-time, however; it is important that she

work so she does not become agoraphobic again.

A. Sexual Harassment

"Beginning in 1986, the Supreme Court has recognized that a claim for unlawful

employment discrimination under Title VII of the Civil Rights Act may be based on

sexual harassment sufficiently severe or pervasive that it creates a hostile work

environment." Watt v. Unifirst Corp., 2009 ME 47, <[ 22, 969 A.2d 897, 902 (citing

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66-67, 73 (1986)). The Maine Human

Rights Act (MHRA) "also authorizes employment-related claims of sexual harassment

based on a hostile work environment." Watt, 2009 ME 47, <[ 22, 969 A.2d at 902 (citing 5

M.R.S. § 4572(1)(A); 11 C.M.R. 94 348 003-6 § 3.06(I)(1)(c) (2007) (regulations issued by

the Maine Human Rights Commission)); see also Nadeau v. Rainbow Rugs, Inc., 675

A.2d 973, 976-77 (Me. 1996); Forrest v. Brinker Int'l Payroll Co., 511 F.3d 225, 228 n.2 (1st

Cir.2007).

12 "To succeed on such a claim, the First Circuit has required that, pursuant to the

MHRA, concurrent with Title VII, 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.

Watt, 2009 ME 47,

appropriate to look to analogous federal case law for guidance in the interpretation of

the MHRA. Watt, 2009 ME 47,

Human Servs., 606 A.2d 1051, 1053 (Me. 1992)).

B. Hostile Work Environment

"A hostile work environment claim requires an examination of 'all the

circumstances, including the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee's work performance.'" Watt, 2009

ME 47,

23, 824 A.2d 48,56 (citation omitted)). To establish hostile work environment, a plaintiff

must show harassing behavior "sufficiently severe or pervasive to alter the conditions of

[the plaintiff's] employment and create an abusive working environment and creates an

abusive working environment." Meritor Savings Bank, 477 U.s. at 67 (citation and

quotation omitted). The United States Supreme Court has stated:

But Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees' psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the

13 very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their ... gender ... offends Title VII's broad rule of workplace equality.

Harris v. Forklift Systems, Inc., 510 U.s. 17,22 (1993).

C. Constructive Discharge

With regard to constructive discharge as unlawful employment discrimination,

the MRHA is interpreted according to Title VII. See 5 M.R.S.A. § 4572(1)(A) (2009); Title

VII, Civil Rights Act of 1964, 42 U.S.c. § 2000e-2(a) (2010). Under the comparable

federal act, "discharge" includes situations "where, although not formally discharged

by the employer, the employee has no reasonable alternative to resignation because of

intolerable working conditions." King v. Bangor Federal Credit Union, 611 A.2d 80, 82

(1992). "The test is whether a reasonable person facing such unpleasant conditions

would feel compelled to resign." Id. This is the test used by the First Circuit. See

Greenberg v. Union Camp Corp., 48 F.3d 22, 27 (1st Cir. 1995) ("evidence must support

a finding that ... working conditions would have been so difficult or unpleasant that a

reasonable person in the employee's shoes would have felt compelled to resign"). To

establish constructive discharge, the plaintiff

must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response. An employer may defend against such a claim by showing both (1) that it had installed a readily accessible and effective policy for reporting and resolving complaints of sexual harassment, and (2) that the plaintiff unreasonably failed to avail herself of that employer-provided preventive or remedial apparatus.

Pa. State Police v. Suders, 542 U.s. 129, 133-34 (2004).

CONCLUSIONS

The defendant's position appears to be that only the plaintiff was required to

conduct herself in a reasonable and mature fashion while employed at SJM. It is

undisputed on this record that Mr. Mitchell engaged in regrettable, demeaning,

14 sexually harassing conduct that he believed was funny. Yet the defendant argues that

the plaintiff is at fault for not dealing with this conduct appropriately while the

defendant's management did not deal with this conduct at all.

The defendant makes much of the fact that the plaintiff made an effort to

maintain a working relationship with Mr. Mitchell and did not confront him when he

appeared at her party. This is a woman who was abused for significant periods of her

life and who acquiesced. She does not confront; she appeases. As her sister observed,

the plaintiff has allowed people to treat her badly for her entire life. Mr. Mitchell was

just one of many.

A. Sexual Harassment Hostile Work Environment

a. Unwelcome Sexual Harassment Based on Sex

It is undisputed on this record that Mr. Mitchell made gestures and comments,

and sent notes and texts, to the plaintiff. He also made sexually degrading comments to

other female employees. The use of "sexually degrading, gender-specific epithets"

constitutes harassment based on sex. s Forrest, 511 F.3d at 229. The plaintiff did not

welcome Mr. Mitchell's conduct and found it offensive.

b. Harassment Sufficiently Pervasive

Mr. Mitchell's conduct was sufficiently pervasive to create an abusive work

environment. This was not "simple teasing, offhand comments, and isolated incidents."

Crowley v. L.L. Bean, Inc., 2001 U.s. Dist. LEXIS 11039, at * 52 (D. Me. May 8,2001). This

involved vulgar, frequent statements, written and verbal, and gestures directed toward

the plaintiff or other women in her presence.

8 The fact that Mr. Mitchell embarrassed the plaintiff about her emotional problems, a gender­ neutral act, does not negate his other conduct based on sex.

15 c. Conduct Subjectively Offensive

The plaintiff was disgusted, offended, and humiliated by Mr. Mitchell's conduct.

She found her environment to be hostile and abusive. Crowley, 2001 U.s. Dist. LEXIS

11039, at * 54.

d. Basis for Employer Liability

Finally, a basis for employer liability has been established. Mr. Mitchell's

regrettable conduct was well known to the SJM employees and members of

management, including Mr. Barrows and Ms. Bookataub. No action was taken except

to tell Mr. Mitchell to "knock it off" or "stop." Although Mr. Barrows was informed of

the Christmas card and that the plaintiff was offended by the sexual references, he did

not follow through as required. Mr. Barrows witnessed Mr. Mitchell telling the

plaintiff to get her breasts out of his face at a meeting in front of other employees. Mr.

Mitchell commented on the breasts of others, including Ms. Bookataub. Management

took no action. Mr. Mitchell discussed having sex with Ms. Bookataub in front of her

and the plaintiff. Ms. Bookataub did nothing except joke. SJM knew about the sexual

harassment and "failed to implement prompt and appropriate corrective action." Id. at

*57.

B. Constructive Discharge

The "constructive discharge standard is more onerous than the hostile work

environment standard." Bodman v. Me., Dep't of HHS, 720 F. Supp. 2d 115, 123 (D. Me.

2010). The plaintiff must suffer from "working conditions so intolerable that a

reasonable person would have felt compelled to resign." Id. (quoting Pa. State Police,

542 U.s. at 147). This is an objective standard as opposed to a subjective standard.

Based on her particular circumstances, the plaintiff perhaps felt compelled to resign.

16 Mr. Mitchell's conduct would not, however, have mandated the resignation of a

reasonable person. "[U]n1ess conditions are beyond 'ordinary' discrimination, a

complaining employee is expected to remain on the job while seeking redress." Pa. State

Police, 542 US. at 147 (quoting Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th

Or. 1997).

C. Damages

a. Compensatory Damages

The MHRA provides for compensatory damages for "emotional pain, suffering,

inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary

losses." 5 M.R.S. § 4613(2)(B)(8)(e); Kopenga v. Davric Maine Corp., 1999 ME 65,

727 A.2d 906, 910. Through learned techniques and medicine, the plaintiff's anxiety

disorder and panic attacks were under control at the time she applied for a full-time job

and began work at SJM. Her anxiety levels increased significantly during her

employment at SJM; she was having panic attacks frequently toward the end of her

employment. At one point, the plaintiff thought she was having a heart attack and a

SJM nurse talked the plaintiff through the episode. She sought an evaluation from a

cardiologist because of concerns of heart problems. Certainly the plaintiff's

psychological difficulties did not begin at SJM but the environment there caused a

serious exacerbation of her panic attacks.

b. BackPay

Where there is no actual discharge, a plaintiff must prove that she was

constructively discharged to receive "damages flowing from the loss of her job (most

notably back pay and front pay)." Bodman, 720 F. Supp. 2d at 123; Ginn v. Kelley

Pontiac-Mazda, Inc., 2004 ME 1,

17 Co Punitive Damages

The plaintiff is not entitled to punitive damages. She has not proved by clear and

convincing evidence that the defendant "engaged in a discriminatory practice or

discriminatory practices with malice or with reckless indifference to the rights of an

aggrieved individual." Batchelder v. Realty Res. Hospitality, LLC, 200711E 17, crrcrr 13-14,

914 A.2d 1116, 1121-22.

The entry is

Judgment is entered in favor of the Plaintiff Trudy Little and against the Defendant Saint Joseph's Manor on Counts I and II of the Plaintiff's Complaint in the amount of $20,000.00 plus prejudgment interest at the rate of 3.40% and post­ judgment interest at the rate of 6.30% plus costs.

Judgment is entered in favor of the Defendant Saint Joseph's Manor and against the Plaintiff Trudy Little on Counts III and IV of the Plaintiff's Complaint.

Date: April 22, 2011 4~· Justice, Superior Court

18 TRUDY LITTLE VS SAINT JOSEPHS MANOR UTN:AOCSsr -2009-0060064 CASE #:PORSC-CV-2009-00330

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03 00000092 94 =L.=.O=.. :RA=N..;:G=E=.. :R..L.,--..::;G.=.U.=.Y. . ;;;,D _ 110 MAIN ST., SUITE 1520 SACO ME 04072 F TRUDY LITTLE PL RTND 06/04/2009