STATE OF MAINE SUPERIOR COURT PENOBSCOT, SS. CIVIL ACTION DOCKET NO CV-07-154 lA/f)/- vv r· 9'" , ) , /, .-, t IV~' rll r. 10/0' j
MARY WALSH,
Plaintiff, v. ORDER TOWN OF MILLINOCKET,
Defendant.
Hearing was held and memoranda filed concerning potential equitable remedies
in this case by September 25,2009. The plaintiff was present and represented by
counsel, Arthur Greif, Esq., while the defendant was present and represented by
counsel, Melissa Hewey, Esq. On August 20, 2009 the jury that had been selected to
decide this whistleblower case returned a verdict for the plaintiff, awarding her
compensatory damages in the amount of $30,000. In this Order, the Court will address
the issues of reinstatement, back pay, and front pay.
After losing her job with the town of Millinocket in July of 2005 as a result of the
activities that were the subject of this lawsuit, Ms. Walsh was unable to find substitute
employment for the remainder of that year. Had she continued working for Millinocket
as recreation director, she would have earned $29,702.18 that year, but in fact earned
only $17,681 for the entire year. In January of 2006, she began working for Microdyne in
Orono, Maine where she earned $17,546 for the entire year. While at Microdyne, she
was promoted and then demoted, in title only, with no decrease in pay. Because of her
lengthy commute, 60 miles each way, and her fear of a moose collision, Ms. Walsh
terminated her employment at Microdyne in June of 2007 and began working at an
Econo Lodge motel in Millinocket in June of that year. Her total income for 2007 was
$15,342. In September of 2007, she moved to Lincoln, Maine to reside with her boyfriend, but continued to commute to her work at the motel in Millinocket where she
continued to be employed until October of 2008 when she ceased working at that
location for reasons that are not clear. She then began to seek work in the Lincoln area
and has been working at Daigle Oil Co. since June 4, 2009 as a cashier / pump attendant,
having averaged three employment inquiries each week until being hired at Daigle. In
2008 she earned $4,624 at Econo Lodge and Daigle Oil and in 2009 her income for the
first nine months was $3,353.
Reinstatement
The major objective of the equitable remedy in a case such as this is to make
whole the victim of unlawful employment activity and the choice of remedy is vested in
the discretion of the Court. Whitney v. Wal-mart Stores, Inc., 2006 ME 37, <]I 15, 895 A.2d
309, 313. The Court should not order reinstatement if it is inappropriate, such as when
there is no position available or the employer-employee relationship is pervaded by
hostility. Williams v. Pharmacia, Inc., 137 F.3d 944,952 (;rth Gr. 1998). The Court is not
ordering reinstatement in this case because the position to which the plaintiff would be
reinstated no longer exists. The recreation department outsourcing contract with East
Millinocket was still in effect at the time of trial in this case and the court assumes, with
no evidence to the contrary, that it still remains in effect. Although it would be possible
to order reinstatement at the expiration of the present contract, the Court will not do so
because it is predictable that the employer-employee relationship in this small
workplace will remain hostile. Instead, the court will consider front pay and now turns
to the issues of back pay and front pay.
Back Pay - Front Pay
The parties agree that the plaintiff is entitled to back pay, but differ as to
amount. Clearly, the amount to be awarded in back pay is to be reduced by the amount actually earned during the relevant period or by whatever amount the plaintiff could
have earned during that period. Maine Human Rights Commission v. City of Auburn, 425
A.2d 990, 999 (Me. 1981). The burden is on the employer to prove facts to enable the
court to determine the appropriate deduction.
First, the Court will address defendant's argument that the back pay claim
should be cut off by the renewal of the shared services contract with east Millinocket
and Milo in July of 2007. If this were considered a separate, independent action
resulting in the elimination of Ms. Walsh's position, then back pay would cease with the
elimination of the position, because a victim of such discrimination is not entitled to
back pay if she would have lost her job notwithstanding the discrimination. See Williams
at 953. Since the 2007 contract renewal was similar to a general ratification of the prior
actions that resulted in plaintiff's loss of employment and does not constitute a new
event that caused the elimination of the position, the Court does not view the event as
one in which plaintiff would have lost her job notwithstanding the discrimination.
The Court is satisfied that the plaintiff diligently sought employment in 2005
after losing her position with the town. The Court also finds that employment at
Microdyne was the highest paying employment that she could find in 2006, despite
diligent efforts to locate higher paying employment closer to home. The fact that
plaintiff drove 600 miles each week to this lower paying job indicates how difficult it
was for her to find employment closer to Millinocket. The Court also does not fault her
for resigning in 2007 primarily because of the long and expensive commute and also
finds that becoming employed at the local Econo Lodge was a reasonable choice under
the circumstances. The Court finds, however, that after moving in with her boyfriend in
Lincoln later in 2007, plaintiff no longer made reasonable efforts to locate suitable
employment because she unduly limited the scope of her search, which impaired her ability to apply for reasonable employment opportunities. Having moved closer to the
Bangor - Brewer - Orono - Old Town area, plaintiff should have made reasonable
efforts to seek employment there yet there is scant evidence that she made a serious
effort in that regard. The Court bases this conclusion on the lack of specificity in the
plaintiff's testimony that she searched in this area in general, and the undisputed fact
that in 2008 she failed to look in the employment section of the weekend edition of the
only mass circulation newspaper in the area. As a result she was not aware of at least
three advertised openings for municipal recreation administrators in that area and did
not apply for those positions. It is the Court's belief that any serious search for
employment in that part of the state would include perusal of the weekend Bangor
Daily News. The Court is aware of the burden placed on the defendant in this regard by
Maine Human Rights Commission v. Department of Corrections, 474 A.2d 860 (Me. 1984),
but finds that there is a huge difference between expecting a person from Springvale to
accept employment in Skowhegan and expecting a person from Lincoln to pursue
employment in greater Bangor. Because her search for employment became extremely
limited in 2008, the Court finds that from that point on plaintiff did not make
reasonable efforts to find employment.
In computing back pay the Court finds that had plaintiff remained employed
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STATE OF MAINE SUPERIOR COURT PENOBSCOT, SS. CIVIL ACTION DOCKET NO CV-07-154 lA/f)/- vv r· 9'" , ) , /, .-, t IV~' rll r. 10/0' j
MARY WALSH,
Plaintiff, v. ORDER TOWN OF MILLINOCKET,
Defendant.
Hearing was held and memoranda filed concerning potential equitable remedies
in this case by September 25,2009. The plaintiff was present and represented by
counsel, Arthur Greif, Esq., while the defendant was present and represented by
counsel, Melissa Hewey, Esq. On August 20, 2009 the jury that had been selected to
decide this whistleblower case returned a verdict for the plaintiff, awarding her
compensatory damages in the amount of $30,000. In this Order, the Court will address
the issues of reinstatement, back pay, and front pay.
After losing her job with the town of Millinocket in July of 2005 as a result of the
activities that were the subject of this lawsuit, Ms. Walsh was unable to find substitute
employment for the remainder of that year. Had she continued working for Millinocket
as recreation director, she would have earned $29,702.18 that year, but in fact earned
only $17,681 for the entire year. In January of 2006, she began working for Microdyne in
Orono, Maine where she earned $17,546 for the entire year. While at Microdyne, she
was promoted and then demoted, in title only, with no decrease in pay. Because of her
lengthy commute, 60 miles each way, and her fear of a moose collision, Ms. Walsh
terminated her employment at Microdyne in June of 2007 and began working at an
Econo Lodge motel in Millinocket in June of that year. Her total income for 2007 was
$15,342. In September of 2007, she moved to Lincoln, Maine to reside with her boyfriend, but continued to commute to her work at the motel in Millinocket where she
continued to be employed until October of 2008 when she ceased working at that
location for reasons that are not clear. She then began to seek work in the Lincoln area
and has been working at Daigle Oil Co. since June 4, 2009 as a cashier / pump attendant,
having averaged three employment inquiries each week until being hired at Daigle. In
2008 she earned $4,624 at Econo Lodge and Daigle Oil and in 2009 her income for the
first nine months was $3,353.
Reinstatement
The major objective of the equitable remedy in a case such as this is to make
whole the victim of unlawful employment activity and the choice of remedy is vested in
the discretion of the Court. Whitney v. Wal-mart Stores, Inc., 2006 ME 37, <]I 15, 895 A.2d
309, 313. The Court should not order reinstatement if it is inappropriate, such as when
there is no position available or the employer-employee relationship is pervaded by
hostility. Williams v. Pharmacia, Inc., 137 F.3d 944,952 (;rth Gr. 1998). The Court is not
ordering reinstatement in this case because the position to which the plaintiff would be
reinstated no longer exists. The recreation department outsourcing contract with East
Millinocket was still in effect at the time of trial in this case and the court assumes, with
no evidence to the contrary, that it still remains in effect. Although it would be possible
to order reinstatement at the expiration of the present contract, the Court will not do so
because it is predictable that the employer-employee relationship in this small
workplace will remain hostile. Instead, the court will consider front pay and now turns
to the issues of back pay and front pay.
Back Pay - Front Pay
The parties agree that the plaintiff is entitled to back pay, but differ as to
amount. Clearly, the amount to be awarded in back pay is to be reduced by the amount actually earned during the relevant period or by whatever amount the plaintiff could
have earned during that period. Maine Human Rights Commission v. City of Auburn, 425
A.2d 990, 999 (Me. 1981). The burden is on the employer to prove facts to enable the
court to determine the appropriate deduction.
First, the Court will address defendant's argument that the back pay claim
should be cut off by the renewal of the shared services contract with east Millinocket
and Milo in July of 2007. If this were considered a separate, independent action
resulting in the elimination of Ms. Walsh's position, then back pay would cease with the
elimination of the position, because a victim of such discrimination is not entitled to
back pay if she would have lost her job notwithstanding the discrimination. See Williams
at 953. Since the 2007 contract renewal was similar to a general ratification of the prior
actions that resulted in plaintiff's loss of employment and does not constitute a new
event that caused the elimination of the position, the Court does not view the event as
one in which plaintiff would have lost her job notwithstanding the discrimination.
The Court is satisfied that the plaintiff diligently sought employment in 2005
after losing her position with the town. The Court also finds that employment at
Microdyne was the highest paying employment that she could find in 2006, despite
diligent efforts to locate higher paying employment closer to home. The fact that
plaintiff drove 600 miles each week to this lower paying job indicates how difficult it
was for her to find employment closer to Millinocket. The Court also does not fault her
for resigning in 2007 primarily because of the long and expensive commute and also
finds that becoming employed at the local Econo Lodge was a reasonable choice under
the circumstances. The Court finds, however, that after moving in with her boyfriend in
Lincoln later in 2007, plaintiff no longer made reasonable efforts to locate suitable
employment because she unduly limited the scope of her search, which impaired her ability to apply for reasonable employment opportunities. Having moved closer to the
Bangor - Brewer - Orono - Old Town area, plaintiff should have made reasonable
efforts to seek employment there yet there is scant evidence that she made a serious
effort in that regard. The Court bases this conclusion on the lack of specificity in the
plaintiff's testimony that she searched in this area in general, and the undisputed fact
that in 2008 she failed to look in the employment section of the weekend edition of the
only mass circulation newspaper in the area. As a result she was not aware of at least
three advertised openings for municipal recreation administrators in that area and did
not apply for those positions. It is the Court's belief that any serious search for
employment in that part of the state would include perusal of the weekend Bangor
Daily News. The Court is aware of the burden placed on the defendant in this regard by
Maine Human Rights Commission v. Department of Corrections, 474 A.2d 860 (Me. 1984),
but finds that there is a huge difference between expecting a person from Springvale to
accept employment in Skowhegan and expecting a person from Lincoln to pursue
employment in greater Bangor. Because her search for employment became extremely
limited in 2008, the Court finds that from that point on plaintiff did not make
reasonable efforts to find employment.
In computing back pay the Court finds that had plaintiff remained employed
with Millinocket through 2007, she would have received a 3% increase, as she had in the
past. The Court also finds that it is reasonable to supplement her earnings for the time
she was working at Microdyne with a mileage adjustment. For 2005, plaintiff is entitled
to $12,021. For 2006, the difference between actual and Millinocket earnings was
$13,047, to be increased by mileage computed at the federal rate of $13,884, for a total of
$26,931. For 2006, The Court will make an award for the entire year, but the mileage component will only relate to 21 weeks because she only worked at Microdyne for that
period of time. The award, then, is $16,169 plus $6,11l.
Because the Court's findings with regard to mitigation also apply to front pay,
The Court is not making a front pay award. Additionally, as a matter of equity, four
years and seven months have transpired since the plaintiff was discharged by the Town
and the Court concludes that the back pay award, if it were not stopped in 2008, would
have approximated the benefit that plaintiff would have received had she been
reinstated. The equitable remedy, therefore, is an award of $61,232.
The Entry Shall be:
Upon the jury's verdict as well as the Court's Order on equitable remedies,
judgment is entered for the plaintiff in the amount $91,232 (consisting of $30,000 in
non-pecuniary damages as awarded by the jury and back pay of $61,232 awarded by
the Court), plus interest at the statutory rate and costs.
Dated: February 10, 2010
WILLIAM ANDERSON
JUSTICE, SUPERIOR COURT MARY WALSH VS MILLINOCKET TOWN OF UTN:AOCSsr -2007-0070154 CASE #:BANSC-CV-2007-00154
MARY WALSH GREIF, ARTHUR --------- PL 82 COLUMBIA ST PO BOX 2339 BANGOR ME 04402-2339
MILLINOCKET TOWN OF _ _ _ _ _ _ _ _ _ _ _ _ ::;..DE;;;;.F"' _ HEWEY, MELISSA 84 MARGINAL WAY SUITE 600 PORTLAND ME 04101
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