Stanley v. Hancock County Commissioners

2004 ME 157, 864 A.2d 169, 22 I.E.R. Cas. (BNA) 462, 2004 Me. LEXIS 189

• Court: Supreme Judicial Court of Maine
• Decided: December 23, 2004
• Status: Published

Opinions

LEVY, J.

[¶ 1] Ronald Stanley appeals from the entry of a summary judgment by the Superior Court (Hancock County, Hjelm, J.) in favor of the Hancock County Commissioners. Stanley’s complaint alleges that he was terminated from his job as a maintenance worker for Hancock County in violation of the Whistleblowers’ Protection Act, 26 M.R.S.A. §§ 831-840 (1988 & Supp.2004), because he had complained to the County about its use of unlicensed workers to perform electrical work. The dispositive issue on appeal is whether Stanley adequately controverted statements in the Commissioners’ statement of material facts regarding their nondiscriminatory reasons for terminating his employment. We affirm the judgment because there are no genuine issues of material fact regarding the absence of a causal connection between Stanley’s protected report to his employer and his termination. We also address the requirement in M.R. Civ. P. 56(h)(1), (2), and (3) that the facts set forth in supporting and opposing statements of material fact be “separate, short, and concise.”

I. BACKGROUND

[¶ 2] We consider the facts contained in the summary judgment record in the light most favorable to Stanley. Hancock County employed Ronald Stanley in its maintenance department from October 1994 to March 2001. In February 2000, the Commissioners hired Perley Urquhart as the County’s facilities director. Urquhart is a licensed electrician and was authorized to contract electrical work to outside contractors. His duties included supervising Stanley.

[¶ 3] Stanley asserts that during his employment he was required to perform electrical work and that he had complained, first to the county clerk and then to Urquhart, that it was illegal and unsafe for him to perform electrical work because he was not a licensed electrician. In February 2001, Urquhart ordered Stanley to rewire floodlights. Stanley initially refused, but at Urquhart’s insistence, he performed the work.

[¶ 4] In December 2000, Urquhart conducted a formal performance review of Stanley. In a memo addressed to the County Commissioners dated January 19, 2001, Urquhart described problems he had been having with Stanley and recommended that Stanley’s employment be terminated. The memo stated that Stanley (1) failed to perform tasks assigned to him, including certain carpentry and painting jobs; (2) failed to comply with the County’s personnel policies governing the use of the telephone for personal calls, breaks, tardiness, lunch breaks, and attendance; (3) failed to comply with directions and to complete work orders; and (4) lacked the knowledge or capacity to perform various tasks.

[¶ 5] The Commissioners conducted a hearing on Urquhart’s recommendation in March 2001. Stanley was informed of Urquhart’s recommendation to the Commissioners the morning of the hearing. At the hearing, Urquhart spoke first and stated his reasons for recommending that Stanley be terminated as outlined in the January 19 memorandum. Stanley spoke next and informed the Commissioners that he had recently been required to perform electrical work for the County (rewiring the floodlights) even though he was not licensed to do the work. He also showed the Commissioners several work orders for other electrical projects that, he claimed, Urquhart expected him to complete.¹ After the hearing, the Commissioners voted 3-0 to accept Urquhart’s recommendation that Stanley’s employment be terminated.

[¶ 6] Stanley filed a discrimination complaint with the Maine Human Rights Commission, alleging that his termination had been in retaliation for his complaints about unsafe and illegal employment practices. See 26 M.R.S.A. § 834-A (1988) (authorizing an employee who has complied with provisions of the Whistleblowers’ Protection Act to bring a complaint before the Maine Human Rights Commission). The Human Rights Commission gave Stanley a right-to-sue letter, and this action followed. See 5 M.R.S.A. § 4612(6) (2002).

[¶ 7] After the completion of discovery, the Commissioners filed a motion for a summary judgment. The Commissioners’ motion was supported by a statement of material facts pursuant to M.R. Civ. P. 56(h)(1) containing 191 separate facts, several of which repeated the same facts in various forms two or more times. This apparently occurred because the statement was organized to correspond roughly to the three affidavits and Stanley’s deposition, which were cited in support of the 191 facts.

[¶ 8] Stanley responded with an opposing statement of facts pursuant to M.R. Civ. P. 56(h)(2) that (1) admitted many of the Commissioners’ points; (2) disputed or qualified many of the Commissioners’ points with appropriate affirmative statements and record references; and (8) conceded many of the Commissioners’ points with the following statement and case citation:

Plaintiff admits that this is what is contained in [the named person’s] affidavit [cited in support of the fact],² but notes that, to the extent this statement reflects the affiant’s state of mind or opinion, the Judge is free to completely disregard this self-serving statement, as it is not from a disinterested witness. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, [150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105] (2000) (citations omitted).

[¶ 9] Separate from his response to the Commissioners, Stanley filed a statement of additional facts pursuant to M.R. Civ. P. 56(h)(2). This statement asserted forty-nine additional facts supported by record references. Among other things, these additional facts alleged that Stanley discussed “the issue of [Stanley] performing electrical work without a license” with county officials as early as October 1997, and that “Urquhart told Stanley shortly after he started with the County that the Commissioners had told him to find a reason to fire Stanley.” The Commissioners filed a reply statement to Stanley’s statement pursuant to M.R. Civ. P. 56(h)(3) that largely denied Stanley’s proffered facts regarding the timing and substance of many communications concerning electrical work between Stanley, Urquhart, and the Commissioners.

[¶ 10] The Superior Court granted the Commissioners’ motion for a summary judgment. It determined that Stanley failed to controvert the Commissioners’ assertion that his complaints about performing electrical work did not contribute to the Commissioners’ decision to terminate his employment. Stanley appeals from this decision.

II. DISCUSSION

A. Whistleblowers’ Protection Act

[¶ 11] “To prevail on a claim of unlawful retaliation pursuant to the [Whistleblowers’ Protection Act], an employee must show (1) that she engaged in activity protected by the WPA, (2) that she experienced an adverse employment action, and (3) that a causal connection existed ’ between the protected activity and the adverse employment action.” DiCentes v. Michaud, 1998 ME 227, ¶ 14, 719 A.2d 509, 514; see also 26 M.R.S.A. § 883(1), (2) (1988 & Supp. 2004).

[¶ 12] We evaluate WPA claims with the “shifting burdens” analysis articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). DiCentes, 1998 ME 227, ¶ 14, 719 A.2d at 514. Under that formula, after the WPA claimant establishes a prima facie case, the defendant assumes the burden of producing evidence that there was a legitimate, nondiscriminatory reason for the adverse employment action. Maine Human Rights Comm’n v. City of Auburn, 408 A.2d 1253, 1262 (Me.1979). If the defendant produces evidence of a legitimate, nondiscriminatory reason for the employment action, the employee has the burden to show that the reason offered by the defendant was pretextual; that is, “that there was, in fact, a causal connection between the protected activity and the adverse employment action.” DiCentes, 1998 ME 227, ¶ 16, 719 A.2d at 515. In the summary judgment context, a plaintiff can meet that final burden and survive a defense motion for a summary judgment by establishing a factual dispute as to whether a causal connection exists between the report protected by the WPA and the adverse employment action.

B. Summary Judgment Analysis

[¶ 13] Entry of a summary judgment is appropriate only if the portions of the evidentiary record “referred to in the statements [of material facts] show that there is no genuine issue as to any material fact set forth in those statements and that any party is entitled to a judgment as a matter of law.” M.R. Civ. P. 56(c); see also Botka v. S.C. Noyes & Co., 2003 ME 128, ¶ 18, 834 A.2d 947, 952-53. A party’s opposing statement of material facts “‘must explicitly admit, deny, or qualify facts by reference to each numbered paragraph, and a denial or qualification must be supported by a record citation.’ ” Doyle v. Dep’t of Human Servs., 2003 ME 61, ¶ 10, 824 A.2d 48, 52-53 (quoting Levine v. R.B.K. Caly Corp., 2001 ME 77, ¶ 6 n. 5, 770 A.2d 653, 655); see also M.R. Civ. P. 56(h)(2). “Facts contained in á supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted.” M.R. Civ. P. 56(h)(4).

The existence of a dispute of material facts and entry of summary judgment are questions of law which we review de novo, considering the evidence in the light most favorable to the party against whom judgment has been entered, to decide whether the parties’ statements of material facts and the referenced record evidence reveal a genuine issue of material fact, and whether the moving party was entitled to judgment as a matter of law.

Botka, 2003 ME 128, ¶ 18, 834 A.2d at 952-53.

[¶ 14] We turn to consider the summary judgment record in this case as it pertains to (1) Stanley’s prima facie case of employment discrimination; (2) the Commissioners’ nondiscriminatory reasons for Stanley’s termination; and (3) proof of motive in employment discrimination cases.

1. Prima Facie Case of Employment Discrimination

[¶ 15] The Commissioners concede that Stanley required an electrician’s license at least with regard to the floodlight project. They also concede that Stanley told Urquhart that he was not authorized to perform that work. It is also undisputed that Stanley was terminated from employment a short time after he made the WPA-protected report.

[¶ 16] These facts establish a prima facie case for discrimination pursuant to 26 M.R.S.A. § 833(1)(A), (B), or (D). See DiCentes, 1998 ME 227, ¶ 16, 719 A.2d at 514-15 (“Proof of conduct protected by the WPA ... followed in close proximity by an adverse employment action, gives rise to an inference that a causal connection is established _”). Thus, under the McDonnell Douglas burden-shifting framework, the Commissioners were obliged to produce evidence of a legitimate, nondiscriminatory reason for terminating Stanley’s employment. DiCentes, 1998 ME 227, ¶ 16, 719 A.2d at 515. Accordingly, we examine the undisputed facts that establish a nondiscriminatory reason for Stanley’s termination, and the absence of a causal connection between Stanley’s termination and his complaints regarding the electrical work.

2. Nondiscriminatory Reasons for Adverse Employment Action

[¶ 17] The Commissioners asserted in paragraphs 38, 66, 99, and 179 of their statement of material facts that they terminated Stanley’s employment for the nondiscriminatory reasons that he abused break and lunch time policies, came in late and left early without permission, poorly performed his work, and was rude and argumentative. The Commissioners also asserted in paragraphs 13, 49, 53, and 180 of their statement of material facts that Stanley’s complaints about electrical work were irrelevant to their decision.

[¶ 18] Stanley responded to paragraphs 38, 49, 66, 99, 179, and 180, as follows:

Plaintiff admits that this is what is contained in [the] affidavit, but notes that, to the extent this statement reflects the affiant’s state of mind or opinion, the Judge is free to completely disregard this self-serving statement, as it is not from a disinterested witness. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, [150-51, 120 S.Ct. 2097] (2000) (citations omitted).

Stanley’s responses failed in several respects to dispute the nondiscriminatory reasons asserted by the Commissioners for his termination. First, the responses fail to “admit, deny, or qualify the facts.” M.R. Civ. P. 56(h)(2). Second, by not expressly admitting the facts, Stanley was required, but failed, to “support each denial or qualification by a record citation.” Id. Moreover, by failing to controvert properly the Commissioners’ asserted facts, Stanley admitted those facts. M.R. Civ. P. 56(h)(4).³

[¶ 19] Stanley cannot avoid admitting a fact that he failed to controvert properly by inviting the court to disbelieve a sworn affidavit because it contains “self-serving statements” by a witness who is not “disinterested.” The Rules permit parties to rely on the affidavits of interested witnesses, including themselves, to establish or dispute a material fact. A cornerstone of the rationale for having a summary judgment process is that a trial is not warranted if a party cannot identify admissible evidence that establishes an actual factual dispute. If we were to interpret the Rule as Stanley suggests, Rule 56 would be rendered a nullity. As applied here, Stanley’s approach would compel us to disregard the facts he asserted in his additional statement of material facts because the statement is based on his own affidavit and deposition, both of which can be characterized as self-serving statements by a witness who is not disinterested. We reject this approach.

[¶ 20] Stanley’s reliance on the Reeves opinion in his responses is misplaced. Reeves addressed an age discrimination claim in which the employer had rebutted the employee’s prima facie case of discrimination at trial with the legitimate, nondiscriminatory explanation that the employee was terminated for “shoddy record keeping.” Reeves, 530 U.S. at 142-43, 120 S.Ct. 2097 (quotation marks omitted). In response, the employee introduced evidence that he had properly maintained the records in question, id. at 144-45, 120 S.Ct. 2097, thereby creating a. jury issue as to the falsity of the employer’s explanation. Id. at 151, 120 S.Ct. 2097. Similarly, in Desert Palace, Inc. v. Costa, the United States Supreme Court held that an employee is not required to “present direct evidence of discrimination in order to obtain a mixed-motive instruction under Title VII of the Civil Rights Act of 1964,” 539 U.S. 90, 92, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), and may instead rely on circumstantial evidence, including circumstantial evidence “that a defendant’s explanation for an employment practice is ‘unworthy of credence.’” Id. at 100, 123 S.Ct. 2148 (quoting Reeves, 530 U.S. at 147, 120 S.Ct. 2097).

[¶ 21] The principles enunciated in Reeves and Desert Palace, with which we agree, do not assist Stanley because Stanley’s responses failed to create a factual dispute regarding the Commissioners’ nondiscriminatory explanation for their decision to terminate his employment. Stanley could have generated a factual dispute by simply denying the Commissioners’ assertions and, as required by Rule 56(h)(2), supporting his denials with record citations to circumstantial evidence that the Commissioners’ nondiscriminatory explanation was unworthy of credence. Contrary to the view expressed by our dissenting colleagues, the principles addressed in Reeves and Desert Palace are entirely consistent with our conclusion regarding Stanley’s responses and with the established requirements of summary judgment practice: To create a jury question as to whether an employer’s nondiscriminatory explanation is believable, the employee must deny the material facts that establish the nondiscriminatory explanation and support the denials with record citations to admissible evidence. That did not occur here.

[¶22] Stanley also failed to effectively controvert the factual assertions made in paragraphs 13 and 53 of the Commissioners’ statement of material facts, but for reasons different than those applicable to paragraphs 38, 49, 66, 99, 179, and 180. In each instance, Stanley expressly disputed the Commissioners’ assertion that they thought the electrical work issue was irrelevant. Stanley supported his responses inadequately, however, with record citations that established only that he raised the electrical work issue at the hearing, not that the Commissioners treated the issue as relevant to their decision to terminate his employment.⁴

[¶ 23] Stanley’s responses to the Commissioners’ statement of material facts established that the Commissioners had legitimate reasons for terminating his employment. Accordingly, the Commissioners established a nondiseriminatory reason for the adverse employment action. This shifts the burden of persuasion to Stanley to show that the nondiseriminatory reasons offered by the Commissioners are pretextual. Stanley cannot meet this burden because his responses to the Commissioners’ statement of material facts also failed to controvert that what he believed to be the real reason for his termination— his complaints regarding electrical-related job assignments — was irrelevant to the Commissioners’ decision.⁵ Nowhere in his opposing statement of material facts did Stanley assert that his poor work performance reports, relied on by the Commissioners, were untrue, or that even if true, were not the cause for his termination.

[¶24] Under the McDonnell Douglas burden-shifting framework, a plaintiff can meet her or his final burden and survive a defense motion for a summary judgment by establishing a factual dispute as to whether - a causal connection exists between the report protected by the WPA and the adverse employment action. Stanley failed to do this because pursuant to Rule 56(h)(4) he admitted that he was terminated for his poor work performance and that his complaints regarding the electrical work were not the cause of the Commissioners’ decision. The fact that there is a factual dispute about the extent to which he complained about having to perform electrical work even before Urquhart’s 2001 memo, or whether Urquhart told him that the Commissioners had asked Urquhart to find a reason for firing him, does not satisfy his burden of demonstrating the required causal connection between his “whistleblowing” and his termination.⁶ See Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, ¶ 9, 711 A.2d 842, 845 (stating that a motion for a summary judgment is properly granted “[w]here a plaintiff will have the burden of proof on an essential issue at trial, and it is clear that the defendant would be entitled to a judgment as a matter of law at trial if the plaintiff presented nothing more than was before the court at the hearing on the motion for a summary judgment.”).

3. Proof of Motive

[¶25] Stanley contends that employment discrimination cases are unsuitable for summary judgments because any statements by a defendant related to motive or intent should be subjected to a credibility determination at trial. Although at least one court has suggested caution in the use of summary judgment practice to decide issues of motive or intent in employment discrimination cases, see Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 40 (1st Cir.2003), the presence of the issue of motivation or intent does not relieve the plaintiff of her or his burden of producing evidence sufficient to create a question of fact on that issue. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 524, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Chapman v. AI Transp., 229 F.3d 1012, 1024-26 (11th Cir.2000).

[¶ 26] Regardless of whether extra caution is warranted on the issue of motivation when applying the summary judgment framework in employment discrimination cases, the summary judgment record in this case establishes that there is no genuine dispute of material fact central to one of the three required elements of a WPA claim: “that a causal connection existed between the protected activity and the adverse employment action.” DiCentes, 1998 ME 227, ¶ 14, 719 A.2d at 514. Stanley conceded that the adverse employment action was motivated by legitimate reasons that are unrelated to his complaints regarding electrical work. He therefore failed to establish a genuine dispute of material fact as to whether the reasons cited by the Commissioners to justify his termination were pretextual. See id. ¶ 17, 719 A.2d at 515.

C. Rule 56(h)(l)’s Requirement That Statements of Material Fact be “Separate, Short and Concise”

[¶ 27] Rule 56(h)(1) requires that “[a] motion for summary judgment shall be supported by a separate, short, and concise statement of material facts, set forth in numbered paragraphs.” Although the question of whether the Commissioners’ 191-paragraph statement of material facts comports with this requirement was not raised before the Superior Court or before us, we take this opportunity to address the Rule’s brevity requirement because of its importance to the management of cases in the trial courts.

[¶ 28] The filing of unnecessarily long or repetitive statements of material facts needlessly complicates the summary judgment process. If a statement of a particular fact is supported by several record citations, the fact should be stated once with a reference to each of the several record citations that support the fact. In addition, statements of material facts should be organized in a logical order to present in a meaningful fashion the “story” revealed by the material facts. For example, parties may organize facts, in whole or in part, (1) in order of chronology; (2) to correlate with the elements of the cause or causes of action; or (3) as was possible here, to correspond to the shifting burdens of proof imposed by settled law. We discourage organizing statements of material facts by tracking the averments made in several affidavits submitted in support of the statements, where such organization results in the same fact being repeated multiple times.

[¶ 29] If a party submits an unnecessarily long, repetitive, or otherwise convoluted statement of material facts that fails to achieve the Rule’s requirement of a “separate, short, and concise” statement, the court has the discretion to disregard the statement and deny the motion for summary judgment solely on that basis.

D. Conclusion

[¶ 30] We affirm the summary judgment because, as the Superior Court properly concluded, “the record on summary judgment establishes that any prior reports made by [Stanley] regarding the lawfulness of policies and practices in the maintenance of county buildings were not a cause of the [Commissioners’] decision to terminate his employment.”

The entry is:

Judgment affirmed.

SAUFLEY, C.J., concurs and files an opinion joined by CLIFFORD, J.

ALEXANDER, J., dissents and files an opinion joined by DANA and CALKINS, JJ.

1 . The work orders were not specifically directed to Stanley. The Commissioners contend that Urquhart told them at the hearing that he had mistakenly thought that Stanley could do the floodlight job under his license. Stanley disagrees, contending that Urquhart erroneously told the Commissioners at the hearing that Stanley was authorized to perform the floodlight job under his license.

2 . The individual affiant was named in each such statement. Otherwise, the statements were identical.

3 . Amendments to the Civil Rules effective January 1, 2004, added the additional requirement that a party’s opposing statement of material facts must begin each statement "with the designation 'Admitted,' ‘Denied,’ or ‘Qualified’ (and, in the case of an admission, shall end with such designation).’’ M.R. Civ. P. 56(h)(2).

4 . The Commissioners' assertions and Stanley's responses are as follows:

13. The Commissioners thought [the report regarding electrical work] was irrelevant to the issues brought up by Urquhart in his January 19, 2001 memo, and voted 3-0 to terminate Stanley's County employment. [County Clerk] Bickford Aff. ¶ 4.

13. Disputed. The Commissioners considered Stanley’s complaint regarding being requested to perform electrical work, but were satisfied by Mr. Urquhart’s erroneous statement that Stanley could work under his license. See Stanley aff. ¶¶ 21, 22.

53. The issue of electrical work was not a consideration in the Commissioners’ decision, as it had nothing to do with Urquhart’s complaints and recommendations, and Stanley had shown nothing to the Commissioners to show that it had anything to do with the January 19, 2001 recommendation. Brown Aff. ¶ 8.

53. Disputed. Plaintiff had provided the Commissioners with five work orders which reflected that electrical work needed to he done and Stanley stated to the Commissioners that he could not legally do the electrical work. See Stanley depo. pg. 97 lines 5-9.

Stanley’s responses are insufficient because his assertions of facts associated with his complaints and his characterization of them as having been considered by the Commissioners fail to controvert the Commissioners' statement that the complaints were irrelevant to the decision to terminate.

5 . Stanley asserts for the first time on appeal that the affidavits relied on by the Commissioners were deficient because they contain inadmissible hearsay. See M.R. Civ. P. 56(e). The failure of a summary judgment respondent to object to evidentiary matters at the trial level effectuates a procedural waiver of those objections. See Peoples Heritage Sav. Bank v. Pease, 2002 ME 82, ¶ 25, 797 A.2d 1270, 1277 ("If a party fails to object to an improper affidavit as unsupported by the affi-ant’s personal knowledge, the issue is not preserved for appellate review.”).

6 . We note parenthetically that the Commissioners did not contend that Stanley failed to voice any complaints about electrical work prior to 2001. Rather, they asserted that at the hearing in March 2001, "Stanley did not address any electrical work other than being asked to fix some flood[ jlights in late February 2001. Bickford Aff. ¶ 4." Stanley disputed this assertion by explaining that he had ”[o]n many occasions ... addressed electrical work other than being asked to fix some flood lights in late February, 2001.” Accordingly, Stanley’s response and record citations were unresponsive to the Commissioners' assertion that at the hearing, the only electrical work Stanley addressed pertained to February 2001, and therefore the Commissioners’ assertion was effectively admitted.