JOY B. HIKEL, Plaintiff
TOWN OF MADISON, Defendant.
Plaintiff JOY B HIKEL represented by ARTHUR J. GREIF GILBERT & GREIF, P.A., JULIE D. FARR GILBERT & GREIF, P.A.
Defendant TOWN OF MADISON represented by MARK V. FRANCO THOMPSON & BOWIE, LLP
REPORT AND RECOMMENDATION ON MOTION FOR SUMMARY JUDGMENT
John C. Nivison U.S. Magistrate Judge
In this case, Plaintiff Joy B. Hikel seeks to recover damages allegedly resulting from the conduct of Defendant Town of Madison in connection with Plaintiff’s employment with Defendant. In particular, Plaintiff maintains that Defendant discriminated against her on the basis of sex, and that Defendant retaliated against her for complaining of discrimination.
The matter is before the Court on Defendant’s Motion for Summary Judgment (ECF No. 22.) As explained below, because Plaintiff has failed to establish more than a prima facie case on her claim of sex discrimination, the recommendation is that the Court grant Defendant’s Motion for Summary Judgment on Count I. Because disputed factual issues remain with respect to the claims of retaliation in Counts II and III, the recommendation is that the Court deny Defendant’s Motion for Summary Judgment as to Counts II and III. Finally, because Plaintiff concedes that Defendant is entitled to judgment on Count IV, the recommendation is that the Court grant Defendant’s Motion for Summary Judgment on Count IV.
In her amended complaint (ECF No. 11), Plaintiff asserts four claims: sex discrimination (Count I), retaliation (Count II), whistleblower retaliation (Count III), and a claim for unpaid wages (Count IV). Plaintiff concedes that judgment should enter against her on Count IV. (Opposition at 17, ECF No. 27.) The facts set forth herein are derived from the parties’ Local Rule 56 statements of material facts, and are presented in the light most favorable to Plaintiff.
The Town of Madison appointed Plaintiff to the position of Economic Development Director effective November 3, 2008, with an annual salary of $42, 500. (DSF ¶ 2.) Plaintiff was selected after an interview with a panel that reviewed applicants for the position, which panel included a member of the Board of Selectmen. Based on the panel’s recommendation, Town Manager Norman Dean hired Plaintiff. (PSAF ¶ 98.)
In his October 16 letter of appointment, Dean notified Plaintiff that she would “come under the personnel policy.” (Id. ¶ 99; Hikel Dep. Ex. 2, ECF No. 26-4.) Plaintiff received the Madison Personnel Policy on October 22, 2008, and signed an acknowledgement form reflecting that she had received the policy. (DSF ¶ 4.) According to the form, by signing it, Plaintiff represented that she understood that the conduct or practice of the Town could not establish an implied contract regarding any term or condition of employment. (Id. ¶ 5.) The parties executed an employment agreement on July 1, 2009. The agreement provided, among other things that “[n]othing in this agreement shall prevent, limit or otherwise interfere with the right of the Town Manager to terminate the services of the employee at any time.” (Id. ¶ 3.) Prior to the incidents about which Plaintiff complains, Plaintiff did not grieve any matter regarding her employment with the Town. (Id. ¶ 6.)
At a Board meeting on February 28, 2011, Plaintiff and two other department heads, Police Chief Barry Moores and Road Commissioner Glen Mantor, proposed that the Board increase their pay and vacation time. (PSAF ¶ 100.) After an executive session, the Board voted to increase Plaintiff’s pay by $1.25 per hour, to give Police Chief Barry Moores a raise of $1.60 per hour and one additional week of vacation, and to increase Road Commissioner Glen Mantor’s compensation by $1.60 per hour. The $1.25 pay increase that Plaintiff received was the same raise given to all town employees. (DRSF ¶ 102.) Plaintiff requested, but was denied, more vacation time. (DSF ¶¶ 7-8.) At the time, Plaintiff had worked for the Town for a little less than three years, whereas the Police Chief and Road Commissioner had worked for the Town for approximately nine years. (DSF ¶¶ 12-13.) In addition to these three employees and the Town Manager, the Town employed a fourth department head, a part-time Fire Chief. (Id. ¶ 26.)
In a letter to the Board in March 2011, Plaintiff asserted that she was the victim of gender discrimination and requested that she receive the three step increases that she claimed she was owed under the Personnel Policy, and a week of vacation time commensurate with the vacation time given to the Police Chief. (Id. ¶ 10.) Plaintiff alleges that the Board members “reacted negatively and were not happy about [her] complaint.” (PSAF ¶ 103.) Plaintiff also called the Board Chair, Robert Hagopian, and expressed her view that she was the victim of gender discrimination. (Id. ¶ 105.) At a March board meeting, Hagopian suggested that Plaintiff was not subject to the Personnel Policy’s longevity pay provisions because of her employment agreement. (Id. ¶ 106; DRSF ¶ 106.) One board member stated, “We pay you enough.” (PSAF ¶ 106.)
Plaintiff complained of discrimination in another letter to the Board of Selectmen, dated March 29, 2011. (Hikel Dep. Ex. 7, ECF No. 26-8.) Plaintiff states that she wrote the letter when she did because no action was taken on her request at the March board meetings and she wished to reiterate her request. (PSAF ¶ 109.)
At a May 10, 2011, Board meeting, Plaintiff again requested an increase in her compensation. Selectperson Bruce Bristow made a motion, which carried, that the town attorney, Lee Bragg, review Plaintiff’s contract and the Personnel Policy to determine Plaintiff’s entitlement to salary step increases. (DSF ¶ 11; PSAF ¶ 110.) Previously, Mr. Bristow had voted against giving Plaintiff a raise beyond the $1.25 per hour that was given to all employees. (PSAF ¶ 107.) According to the then Town Manager, Norman Dean, the Board was confused about whether Plaintiff’s position was subject to the Personnel Policy because she was salaried and had a written employment contract. (DSF ¶ 14; PSAF ¶ 112; DRSF ¶ 112.) Sometime in June 2011, Dean likely notified the Board that Attorney Bragg’s opinion was that Plaintiff’s employment contract was subject to the Personnel Policy. (DSF ¶ 16; POSF ¶ 16; PSAF ¶¶ 113-114.) Mr. Bragg’s opinion letter is dated June 20, 2011. (Hikel Dep. Ex. 9, ECF No. 26-9.)
During Dean’s tenure as town manager, Plaintiff wrote a comprehensive plan for the Town of Madison. (PSAF ¶ 160.) She also wrote and helped form the Madison Business Alliance, which supplanted what Dean referred to as a dysfunctional Chamber of Commerce. (PSAF ¶ 116; Dean Dep. at 28-29, ECF No. 28-4.)
By the end of June 2011, Madison had a new Town Manager, Dana Berry. At some point after assuming the position, Berry became aware of the issue concerning Plaintiff’s pay and her request for a retroactive increase. (DSF ¶ 18.) Plaintiff’s possible salary increase was on the agenda for the first Board meeting that Berry attended (July 11, 2011). (Id. ¶¶ 19, 22.) Prior to the meeting, Berry twice told Plaintiff that she need not attend the executive session and that she could trust him to handle it for her. He did not, however, tell her she could not attend. (Id. ¶¶ 20-21; POSF ¶¶ 20-21.) Plaintiff elected not to attend the meeting. (PSAF ¶ 120.) As the result of the executive session on July 11, the Board voted to give Plaintiff $3, 690 in retroactive pay. (DSF ¶ 22.) In addition, the Board renewed her salary as of July 1, 2011, and recalculated the salary to $47, 388.64 per year. (Id. ¶ 24.) Some members of the Board did not want to give Plaintiff the raise, but when the Town’s attorney, Lee Bragg, advised that Plaintiff was entitled to the increase, the salary increase was considered to be a “done deal.” (PSAF ¶ 121.)
On July 21, 2011, Plaintiff learned that on behalf of the Town, Berry wanted to install stairs on a riverfront property that she owned, over which property the Town had a right-of-way. Evidently, the stairs would serve as a place for the public to remove canoes from the water. Berry claimed that the Town’s proposal was permissible. Plaintiff, however, advised that the installation was not possible because the proposed use was in a critical natural resource area. Berry then became “belligerent, ” and told Plaintiff that her opposition to the public use would put her job in jeopardy. (Id. ¶¶ 122-23; DRSF ¶¶ 122-23; DSF ¶ 29.)
When Berry became Town Manager, the Board instructed him that he was not to commit tax increment financing (“TIF”) money for downtown improvements without Board involvement and approval. (PSAF ¶ 117; see also Hikel Dep. Ex. 21, ECF No. 26-16.) According to Hagopian, the Board wanted to have prior knowledge of where money would be spent. (DRSF ¶ 117.)
In an August 2011 Board meeting, Dana Berry requested a $100, 000 increase in the Revolving Loan Fund (which had been originated by Plaintiff, who wrote the grant and the underwriting for the Fund) without any prior mention of his intention to Plaintiff. Plaintiff viewed this as “going behind her back.” (PSAF ¶ 125.)
At some point, the Board instructed Berry to move Plaintiff to a different office. (Id. ¶ 126.) Plaintiff never requested a different office. (Id. ¶ 127.) The prior Town Manager had allowed Plaintiff to work from home on Mondays for this reason, but Berry preferred to have Plaintiff in the office, and she was moved to a new office. (DRSF ¶¶ 126-27.) Berry never consulted Plaintiff about the planning or layout of her office. (PSAF ¶ 166.)
Berry admits that he yelled at Plaintiff on two or three occasions. (Id. ¶ 130.) Berry never yelled at the Police Chief or the Road Commissioner (the Commissioner says otherwise), and never yelled at any other female town employees. (Id. ¶ 131; DRSF ¶ 131.) One occasion on which Berry yelled at Plaintiff was when he asked her to give him all of the revolving loan files for selectman Al Veneziano to review. Berry also raised his voice with Plaintiff when she requested that her new office be carpeted. (PSAF ¶ 133.)
Berry and Hagopian made the decision to exclude Plaintiff from a meeting with the representatives of Kennebec Valley Gas Company regarding the pipeline project. Berry told Plaintiff that he and Hagopian decided not to involve her because the meeting was with the chief officers and she was not a chief officer. Plaintiff, however, had worked on the project from the start, and her knowledge of the project at that time exceeded the knowledge of Berry and Hagopian. (Id. ¶¶ 136-37.) Plaintiff raised her voice in a discussion with Berry on November 14, 2011, because Berry excluded her from the meeting with the principals of the Kennebec Valley Gas Company. (DSF ¶ 40.)
On November 15, 2011, Plaintiff filed a grievance against Berry. (Id. ¶ 27; PSAF ¶ 138.) She addressed her grievance to the Chairman of the Board of Selectmen, Robert Hagopian, and attached documentation of several incidents that took place over several months. Plaintiff claimed that Berry interfered with her job performance, engaged in inappropriate, improper, or unprofessional conduct, and/or acted inappropriately toward her. (Hikel Dep. Ex. 12, ECF No. 26-12.) In the grievance letter, Plaintiff did not allege sex or gender discrimination. Plaintiff, however, maintains that given her previous complaints, her grievance about Berry was “clearly” a complaint that she was being treated differently than the male department heads. (POSF ...