United States District Court, D. Maine
March 26, 2015
STEPHANIE M. FERRANTE, Plaintiff,
MAS MEDICAL STAFFING, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
JOHN A. WOODCOCK, Jr., District Judge.
Stephanie M. Ferrante brought this lawsuit under the Maine Human Rights Act (MHRA) alleging that MAS Medical Staffing (MAS), her former employer, wrongfully discriminated against her on the basis of sex, wrongfully retaliated against her, and constructively discharged her. Having considered the muchdisputed record, the Court concludes that under Federal Rule of Civil Procedure 56, there are genuine issues of material fact that require jury resolution on the retaliation but not the sex discrimination claim. The Court also concludes that constructive discharge under the MHRA does not exist as an independent theory of action and the Court grants judgment on that count.
I. STATEMENT OF FACTS
A. Procedural Posture
On May 20, 2013, Ms. Ferrante filed a complaint against MAS in Cumberland County Superior Court, alleging that MAS had unlawfully discriminated against her on the basis of sex, and alleging that MAS had wrongfully retaliated against and constructively discharged her. State Ct. R. Attach. 2, Compl. at 2-3 (ECF No. 2-2) ( Compl. ). On June 6, 2013, MAS removed the case to this Court. Notice of Removal (ECF No. 1). MAS answered the complaint on June 7, 2013. Answer (ECF No. 5). On June 24, 2013, MAS filed a motion to stay on the ground that its pending Motion for Additional Findings/Motion to Amend before the Superior Court could resolve the entire federal case. Motion to Stay (ECF No. 7). On September 9, 2013, the Superior Court denied MAS's motion, and on September 17, 2013, the Magistrate Judge determined that the Motion to Stay was moot. Report of Hr'g and Order Re: Scheduling (ECF Nos. 20, 21).
On April 3, 2014, MAS filed a notice of intent to file a motion for summary judgment. Notice of Intent to File Summ. J. Mot. & Need for Pre-Filing Conference (ECF No. 31). In anticipation of a Local Rule 56(h) Conference, MAS filed a preconference memorandum on April 11, 2014, Local Rule 56(h) Pre-Conference Filing Mem. (ECF No. 35), and Ms. Ferrante responded on May 9, 2014, Pl.'s Resp. to Def.'s Intent to File a Mot. for Summ. J. (ECF No. 36). On May 16, 2014, the Court held a Local Rule 56(h) conference with counsel. Local Rule 56(h) Pre-Filing Conference (ECF No. 37).
On June 13, 2014, MAS moved for summary judgment with a supporting statement of material facts. Def.'s Mot. for Summ. J. (ECF No. 38) ( Def.'s Mot. ); MAS's Statement of Material Facts Regarding Summ. J. (ECF No. 39) (DSMF). On June 30, 2014, Ms. Ferrante responded to MAS's motion, filed a statement opposing MAS's statement of material facts, and filed her own statement of material facts. Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. (ECF No. 45) ( Pl.'s Opp'n ); Pl.'s Opp'n to Def.'s Statement of Material Facts (ECF No. 42) (PRDSMF); Pl.'s Statement of Material Facts (ECF No. 43) (PSAMF). On July 10, 2014, MAS filed a reply to Ms. Ferrante's opposition and to her statement of material facts. Def.'s Reply to Pl.'s Opp'n to Mot. for Summ. J. (ECF No. 49) ( Def.'s Reply ); Def.'s Resp. to Pl.'s Statement of Material Facts (ECF No. 50) (DRPSAMF).
B. Summary Judgment Facts
1. Ms. Ferrante's Employment History with MAS
MAS, founded in 2002, is a company that provides staff relief to health care facilities in Maine, New Hampshire, and Rhode Island. DSMF ¶¶ 1, 3; PRDSMF ¶¶ 1, 3. There are two divisions in the Westbrook, Maine MAS office: Elder Services and Children's Services. DSMF ¶ 13; PRDSMF ¶ 13.
MAS has a sexual harassment policy that provides in part:
MAS Medical Staffing and Home Care of Maine wants to ensure that its employees can work without being subjected to sexual harassment. Sexual harassment is unwanted attention of a sexual nature, often with an underlying element of threat or coercion. It can also include sexist remarks or verbal abuse directed towards a person or a gender.
DSMF ¶ 5; PRDSMF ¶ 5. MAS has a practice of educating employees about its sexual harassment policy. DSMF ¶ 8; PRDSMF ¶ 8. There are posters on employee's rights and responsibilities in MAS's Westbrook office. DSMF ¶12; PRDSMF ¶12. Although Ms. Ferrante began working for MAS on May 9, 2011, she received the company's sexual harassment policy on July 20, 2011. DSMF ¶¶ 6, 9; PRDSMF ¶¶ 6, 9.
MAS hired Ms. Ferrante as a scheduling coordinator in its Elder Services division at the Westbrook office. DSMF ¶¶ 6, 7; PRDSMF ¶¶ 6, 7. Ms. Ferrante's supervisor in Elder Services was Pamela Wing. Def.'s Mot. at 1. Ms. Ferrante believed she "thrived" as a scheduler. DSMF ¶ 10, PRDSMF ¶ 10. During her time as an employee at MAS, she was never disciplined for poor job performance or put on a performance improvement plan. DSMF ¶ 108; PRDSMF ¶ 108. Ms. Ferrante documented her tasks, experiences, and feelings from July to December of 2011 including removal of job duties and feelings of ostracism, in written Memoranda for Records (MFR); the memoranda are not a complete list of those experiences, however. DSMF ¶ 100; PRDSMF ¶ 100.
The atmosphere in Elder Services was different from Children Services, and Ms. Ferrante described Elder Services as "chaotic". DSMF ¶13; PRDSMF ¶ 13. Ms. Ferrante would typically eat lunch at her desk in her cubicle, but would eat lunch in the conference room if Ken Johnson, co-founder and vice president of MAS, visited the office. DSMF ¶¶ 1, 2, 11; PRDSMF ¶¶ 1, 2, 11.
On either June 28 or 29, 2011, Ms. Ferrante met with Ms. Joy of Human Resources to discuss her concerns about the conduct of her supervisor, Ms. Wing. DSMF ¶ 34, PRDSMF ¶ 34. On July 5, 2011, Ms. Ferrante met with Ms. Joy about the possibility of transferring. DSMF ¶ 45; PRDSMF ¶ 45. On July 6, 2011, MAS temporarily transferred Ms. Ferrante for thirty days to the Children's Services division where she would report to Kim Proulx. DSMF ¶¶ 47, 49; PRDSMF ¶¶ 47, 49. On July 14, 2011, Ms. Ferrante was hired for the Director's Assistant position at a higher rate of pay; this position reported to Ms. Proulx. DSMF ¶¶ 52, 59; PRDSMF ¶¶ 52, 59. Her office remained in the same place after the transition to her new position. DSMF ¶ 109; PRDSMF ¶ 109.
On December 2, 2011, Ms. Ferrante submitted a request for time off from 2:45 p.m. until the end of the day, citing "workplace harassment", and on December 5, 2011, Ms. Ferrante sent a document to Ms. Proulx stating, "This letter serves as official notification of my forced resignation because of the harassment and retaliation which I have endured and continue to endure without any sign of abatement." DSMF ¶¶ 110, 111; PRDSMF ¶¶ 110, 111.
2. The Content and Frequency of Ms. Ferrante's Supervisor's Remarks Either to Ms. Ferrante or in Ms. Ferrante's Presence
Beginning when Ms. Ferrante joined MAS and continuing on an almost-daily basis until at least July 17, 2011, Ms. Ferrante's supervisor, Ms. Wing, made sexually inappropriate comments at work. PSAMF ¶¶ 1-3, 34. Ms. Wing was the only MAS employee who made comments that Ms. Ferrante characterizes as sexually inappropriate. DSMF ¶ 14; PRDSMF ¶ 14. Shortly after Ms. Ferrante began working at MAS, Ms. Wing mentioned that Ms. Ferrante had to be Italian because Ms. Ferrante had "dick-sucking lips." DSMF ¶ 15; PRDSMF ¶ 15. On June 1, 2011, Ms. Wing stated that she had to leave early to go "home to give her husband a nooner." DSMF ¶ 16; PRDSMF ¶ 16; PSAMF ¶ 5; DRPSAMF ¶ 5. In response, Ms. Ferrante was disgusted and expressed her shock; she asked Ms. Wing if she was kidding, and Ms. Wing responded, "you think I am kidding?" DSMF ¶ 17, PRDSMF ¶ 17. This made Ms. Ferrante feel "disgusted" and "totally uncomfortable." DSMF ¶ 17; PRDSMF ¶ 17. Ms. Ferrante was able to return to work and get her work done that day, however. DSMF ¶ 18; PRDSMF ¶ 18.
On June 2, 2011, Ms. Wing was standing with another employee behind Ms. Ferrante's cubicle and mentioned going home and giving her husband "another episode like yesterday." DSMF ¶ 19; PRDSMF ¶ 19; PSAMF ¶ 7; DRPSAMF ¶ 7. In response, Ms. Ferrante said to Ms. Wing, "please don't talk like that around me... I don't want you to talk like that in front of me." DSMF ¶ 19; PRDSMF ¶ 19; PSAMF ¶ 8; DRPSAMF ¶ 8. Again, Ms. Ferrante was able to return to work and complete her work that afternoon. DSMF ¶ 20; PRDSMF ¶ 20.
Ms. Wing talked about being intimate with her husband on more occasions than those Ms. Ferrante documented, and only made the sexual comments in the presence of women; almost all of the employees at the Westbrook office were women, however. PSAMF ¶¶ 4, 18; DRPSAMF ¶ 4, 18. On one occasion, Ms. Ferrante asked Ms. Wing to "stop the inappropriateness". PSAMF ¶16; DRPSAMF ¶ 16. Ms. Wing continued to make comments while standing behind Ms. Ferrante's desk, which Ms. Ferrante felt was a direct response to her request for the behavior to stop. PSAMF ¶17; DRPSAMF ¶ 17.
On June 3, 2011, Ms. Wing shared with co-workers that her husband is nicknamed "Scuba Steve" because he suggested that a caregiver "put on some scuba gear and dive down with a scrub brush in a large woman's fat rolls and clean her cooter.'" DSMF ¶¶ 21, 22; PRDSMF ¶¶ 21, 22. In front of other employees, Ms. Wing asked Ms. Ferrante for the Italian translation of "vagina" and when Ms. Ferrante did not respond, Ms. Wing coaxed her for an answer. DSMF ¶¶ 23, 24; PRDSMF ¶¶ 23, 24; PSAMF ¶ 12; DRPSAMF ¶ 12. In response, Ms. Ferrante put her head on her desk and said, "this is so inappropriate... I need to work." PSAMF ¶ 13; DRPSAMF ¶ 13.
In 2011, only two men worked at the MAS Westbrook office and as of July 8, 2011, only one man, Duane Manning, worked at that office. DSMF ¶¶ 25, 26; PRDSMF ¶¶ 25, 26. Mr. Manning's office was on the opposite end of the office from where Ms. Ferrante, Ms. Wing, and Ms. Proulx worked. DSMF ¶ 27; PRDSMF ¶ 27. Male employees were "few and far between", but Ms. Wing would sometimes comment on their attractiveness. DSMF ¶ 28; PRDSMF ¶ 28; PSAMF ¶ 14; DRPSAMF ¶ 14. At one point she said that one of the field employees was "hot" and that if she had some baby oil she could "teach him a thing or two." DSMF ¶ 29; PRDSMF ¶ 29; PSAMF ¶ 15; DRPSAMF ¶ 15.
On June 17, 2011, Ms. Ferrante went out after work to a bar with co-workers. DSMF ¶ 30; PRDSMF ¶ 30. At the bar, Ms. Wing began discussing how she and her husband watch pornography and learned that "some women can squirt' when they are having an orgasm." DSMF ¶ 31; PRDSMF ¶ 31; PSAMF ¶ 11; DRPSAMF ¶ 11. Ms. Ferrante's coworkers discussed this and said they would go home to try it with their respective partners; this made Ms. Ferrante uncomfortable. DSMF ¶ 32; PRDSMF ¶ 32. This was the final sexually inappropriate incident that Ms. Ferrante documented and can remember, but Ms. Wing's sexual comments continued after June 17, 2011 "nearly every day." DSMF ¶ 33; PRDSMF ¶ 33.
3. Ms. Ferrante Reports Issues to MAS Human Resources
On either June 28 or June 29, 2011, Ms. Ferrante discussed concerns she had regarding her supervisor with Ms. Allyson Joy, the director of Human Resources of MAS. DSMF ¶ 34; PRDSMF ¶ 34. Ms. Ferrante discussed the sexual nature of Ms. Wing's comments. Ms. Joy encouraged Ms. Ferrante to put her concerns in writing; after their meeting, Ms. Joy called Mr. Johnson regarding Ms. Ferrante's complaint. DSMF ¶¶ 35, 36; PRDSMF ¶¶ 35, 36; PSAMF ¶¶ 25, 28; DRPSAMF ¶¶ 25, 28.
After Ms. Ferrante emerged from her meeting with Ms. Joy, she was met with "a lot of glares" from some of the employees in Elder Services, and Ms. Wing began to "badger" her with questions about why she had spoken with Human Resources. DSMF ¶ 41; PRDSMF ¶ 41; PSAMF ¶ 26; DRPSAMF ¶ 26. Ms. Ferrante found this "pretty intimidating." PSAMF ¶ 26; DRPSAMF ¶ 26. Ms. Ferrante felt ostracized by some of her co-workers and Ms. Wing, and felt that her co-workers stopped being as helpful, especially when Ms. Wing was nearby. DSMF ¶ 42; PRDSMF ¶ 42; PSAMF ¶ 27; DRPSAMF ¶ 27. On June 29, 2011, which was either the same day or the day after Ms. Ferrante's meeting with Ms. Joy, Ms. Wing brought Ms. Ferrante into her office and told Ms. Ferrante that she was doing her job incorrectly. DSMF ¶ 43; PRDSMF ¶ 43.
After the June 28 or June 29 meeting with Ms. Joy, Ms. Ferrante summarized her concerns in a letter dated July 1, 2011 addressed to Ms. Joy. DSMF ¶ 37; PRDSMF ¶¶ 37, 38; PSAMF ¶ 22; DRPSAMF ¶ 22. The letter does not expressly discuss the sexual nature of Ms. Wing's comments, but alludes to her "inappropriate" conversation. DSMF ¶ 39; PRDSMF ¶ 39.
4. Ms. Ferrante's Transfer and MAS's Initial Internal Investigation
On July 5, 2011, Ms. Ferrante met with Ms. Joy and Ms. Proulx regarding the letter and the possibility of transferring. DSMF ¶ 45; PRDSMF ¶ 45. Following the meeting, MAS temporarily transferred Ms. Ferrante for thirty days to a position working for Ms. Proulx, to begin the next day. DSMF ¶¶ 47-49; PRDSMF ¶¶ 47-49. On July 6, 2011, Ms. Ferrante's work location was moved to share Ms. Proulx's office. DSMF ¶ 50; PRDSMF ¶ 50.
5. Ms. Ferrante's Meeting with MAS's Vice President
On July 8, 2011, Mr. Johnson met with Ms. Ferrante, and Mr. Johnson "apologized for [Ms. Wing's] behavior and said action would be taken and thanked [Ms. Ferrante] for bringing it forward to him and the company would be better for it." DSMF ¶¶ 54, 55; PRDSMF ¶¶ 54, 55. Ms. Ferrante told him that she "had Ms. Ferrante, the Court accepts her contention that her allusion to inappropriate conversations was a reference to Ms. Wing's sexual comments. never seen anyone so unprofessional" and Mr. Johnson agreed with her and said that "if [Ms. Ferrante] thought [Ms. Wing] was bad now that [she] should have seen her six months ago." PSAMF ¶ 29; PRDSMF ¶ 54. Mr. Johnson gave Ms. Ferrante his cell phone number and asked her to call him if she had any other issues. DSMF ¶ 56; PRDSMF ¶ 56.
Mr. Johnson also met with approximately ten to twelve MAS employees on July 8, 2011 at the Westbrook office to investigate Ms. Ferrante's complaints. DSMF ¶¶ 57, 58; PRDSMF ¶¶ 57, 58; PSAMF ¶ 30; DRPSAMF ¶ 30. According to MAS, Mr. Johnson did not ask about the sexual nature of the comments.
6. Ms. Ferrante Transitions to Director's Assistant Role
Ms. Ferrante interviewed for and was hired for the Director's Assistant position where she received a higher rate of pay and reported to Ms. Proulx. DSMF ¶ 52; PRDSMF ¶ 52. The Director's Assistant position was a newly-created role at MAS; Ms. Proulx did not previously have an assistant but the divisions at MAS were growing and Mr. Johnson had approved the hiring of an assistant for Ms. Proulx. DSMF ¶ 53; PRDSMF ¶ 53. The job description identified thirty-one specific tasks. PSAMF ¶ 54; DRPSAMF ¶ 54. On July 14, 2011, Ms. Ferrante was officially offered the Children's Services Director's Assistant role. DSMF ¶ 59; PRDSMF ¶ 59. She accepted the position, the transition was announced by Ms. Proulx via email on July 15, 2011, and she received an official letter on July 18, 2011 that memorialized the transfer and increased pay. DSMF ¶ 59; PRDSMF ¶ 59; PSAMF ¶ 53; DRPSAMF ¶ 53.
After Ms. Ferrante's transition to her new role, her former coworkers in Elder Services were not working as closely with her as they had before the transition, but her new coworkers in Children's Services were talking and working with her. DSMF ¶ 63; PRDSMF ¶ 63. Also, at some point in the middle of July 2011, while Ms. Proulx was on vacation, Ms. Wing took Ms. Proulx's company checkbook from her office to write a check for one of the employees; Ms. Ferrante was the only person that Ms. Proulx authorized to write checks. DSMF ¶ 62; PRDSMF ¶ 62.
7. Ms. Ferrante's EEOC Charge and MAS Management Response
On July 17, 2011, Ms. Ferrante wrote a letter to the EEOC notifying the Commission of the sexually hostile work environment. DSMF ¶ 60; PRDSMF ¶ 60; PSAMF ¶ 35; DRPSAMF ¶ 35. The submission made reference to the "enduring hostile work environment", and the "pervasive unprofessional and chaotic work environment" that caused her to "respectfully request the implementation and enforcement of an anti-harassment and retaliation policy complaint procedure as a remedy". PSAMF ¶ 24; DRPSAMF ¶ 24. Ms. Ferrante's EEOC submission did not make specific reference to the sexual nature of Ms. Wing's comments. DSMF ¶ 61; PRDSMF ¶ 61.
On July 26, 2011, Ms. Ferrante signed her EEOC and MHRC charge in which she alleged both discrimination based upon sex and retaliation. PSAMF ¶ 36; DRPSAMF ¶ 36.
On August 9, 2011, Ms. Joy asked to talk with Ms. Ferrante in order to make sure everything was okay, because Mr. Johnson had received Ms. Ferrante's EEOC charge the previous day. DSMF ¶ 64; PRDSMF ¶ 64; PSAMF ¶ 37; DRPSAMF ¶ 37. Ms. Joy asked Ms. Ferrante why she had checked the sex discrimination box". DSMF ¶ 65. Ms. Ferrante responded that the consultant said she needed to mark something so they picked the sex box. DSMF ¶ 65; PRDSMF ¶ 65. Ms. Ferrante complained to Ms. Joy that she believed that MAS "is unwilling to acknowledge the lack of a coherent sexual harassment and retaliation policy" and that when she came to work "half of the staff in the office does not acknowledge [her] existence when [her] former supervisor Pam Wing is around", and that she "wasn't satisfied with the way Ken investigated Pam's fear and intimidation tactics." PSAMF ¶¶ 38, 39, 40; DRPSAMF ¶¶ 38, 39, 40. Ms. Ferrante indicated she had no intention of withdrawing her complaint. PSAMF ¶ 41; DRPSAMF ¶ 41.
On August 17, 2011, Ms. Joy and Ms. Proulx met with Ms. Ferrante to talk about her claim. DSMF ¶ 67; PRDSMF ¶ 67. MAS states that neither woman asked Ms. Ferrante to withdraw her charge; however, Ms. Ferrante felt like they were pressuring her to withdraw it. DSMF ¶ 68; PRDSAMF ¶ 68; PSAMF ¶ 42; DRPSAMF ¶ 42.
Ms. Ferrante, Ms. Joy, and Ms. Proulx met again on August 18, 2011. DSMF ¶ 69; PRDSMF ¶ 69. Again, MAS states that Ms. Joy and Ms. Proulx did not ask Ms. Ferrante to withdraw her charge; however, they implied to Ms. Ferrante that they wanted her to withdraw it. DSMF ¶ 69; PRDSMF ¶ 69; PSAMF ¶ 43; DRPSAMF ¶ 43. Ms. Ferrante expressly stated to them that she was not withdrawing her charge. PSAMF ¶ 44; DRPSAMF ¶ 44. Ms. Joy and Ms. Proulx wanted to set up a conference call with Mr. Johnson for August 19, 2011, but Ms. Ferrante refused and did not want to discuss her claim any further. DSMF ¶ 70; PRDSMF ¶ 70. Following the meeting, Ms. Joy told Ms. Ferrante that she wanted to keep the lines of communication open and checked to see how Ms. Ferrante was doing. DSMF ¶ 71; PRDSMF ¶ 71. There was also discussion by Ms. Joy or Ms. Proulx during one of the meetings (August 17 or 18) about mediating the claim. DSMF ¶ 72; PRDSMF ¶ 72.
On August 17, 2011, MAS began to reduce Ms. Ferrante's responsibilities and duties. PSAMF ¶ 46; DRPSAMF ¶ 46. Ms. Ferrante identified fifteen tasks in her job description that she believed were taken away from her between August 17, 2011 and December 3, 2011. DSMF ¶ 101; PRDSMF ¶ 101.
On August 19, 2011, Mr. Johnson sent Ms. Joy an email, and copied Ms. Ferrante and Ms. Wing, with an attached letter regarding his investigation into Ms. Ferrante's allegations. DSMF ¶ 73; PRDSMF ¶ 73. The letter documented his investigative findings, indicated that employees thought the office environment could be improved, and mentioned a general rift between Elder Services and Children's Services. DSMF ¶ 74; PRDSMF ¶ 74. Employees confirmed a busy, chaotic environment, but no one mentioned any harassment, sexual harassment, or discrimination; Mr. Johnson did not ask about sexual misconduct. Id. Mr. Johnson also indicated in his letter that he attempted to speak on the phone with Ms. Ferrante to see if there was additional information he may have been unaware of, but that Ms. Ferrante declined the invitation. DSMF ¶ 75; PRDSMF ¶ 75. It was his opinion that the charge of sexual discrimination was "completely baseless and reckless" and he felt Ms. Ferrante should "withdraw the charge immediately". Id.
On August 22, 2011, Ms. Ferrante completed an intake questionnaire for the EEOC alleging that Ms. Joy and Ms. Proulx had attempted to force her to withdraw her EEOC charge. DSMF ¶ 76; PRDSMF ¶ 76.
On September 6, 2011, Mr. Johnson sent Ms. Ferrante an email regarding her charges of harassment and discrimination. Ms. Ferrante did not think she had anything new to report to him. DSMF ¶ 77; PRDSMF ¶ 77.
Two days later, on September 8, 2011, MAS terminated Ms. Wing's employment. DSMF ¶ 78; PRDSMF ¶ 78. That same day, Ms. Ferrante met with Mr. Johnson and Ms. Joy; neither asked Ms. Ferrante to withdraw her claim. DSMF ¶ 79; PRDSMF ¶ 79. Ms. Ferrante felt that Mr. Johnson's meetings regarding her claim, his request to have a conference call with her, and his August 19, 2011 email, were retaliatory. DSMF ¶ 80; PRDSMF ¶ 80. On September 12, 2011, Mr. Johnson sent Ms. Ferrante a letter memorializing their meeting on September 8, 2011. DSMF ¶ 81; PRDSMF ¶ 81. The letter indicated that Ms. Ferrante had given him no new information as to any ongoing problems as to ongoing sexual harassment. DSMF ¶ 82; PRDSMF ¶ 82.
8. Ms. Ferrante's Co-Worker Loses His Job After Complaining to Human Resources
On August 22, 2011, Duane Manning, then a human resources assistant at MAS, sent a letter to Ms. Joy complaining that on August 17, 2011, he heard Ms. Joy and Ms. Proulx "make a vigorous attempt to compel co-worker Stephanie Ferrante into withdrawing her charge of discrimination. PSAMF ¶ 47; DRPSAMF ¶ 47. That same day, Mr. Johnson sent an email to Ms. Joy stating that "[i]n the current economic climate we need to make some hard choices", that MAS "need[s] to reduce overhead", and that the human resources department "has to be reduced by 1 person"; although he left the decision to Ms. Joy, he suggested that Mr. Manning be laid off "based on seniority". PSAMF ¶ 48; DRPSAMF ¶ 48. Ms. Joy terminated Mr. Manning's employment that day. PSAMF ¶ 49; DRPSAMF ¶ 49. Also, MAS advertised on JobsInMe.com for a human resources clerk in September 2011, and MAS did not notify Mr. Manning about this posting. PSAMF ¶¶ 50, 51; DRPSAMF ¶¶ 50, 51. The human resources clerk position was filled on October 3, 2011 by Shawna Frechette, who did not have experience "in a human resource department, but [did have] experience in an office setting." PSAMF ¶ 52; DRPSAMF ¶ 52.
9. The Hiring and Scope of Courtney McLain's Role as Ms. Proulx's Administrative Assistant
On September 1, 2011, MAS posted a help wanted ad on JobsInMe.com for an office assistant who would report to the Director of Children's Services. PSAMF ¶ 55; DRPSAMF ¶ 55. That same month, Ms. Proulx hired Courtney McLain as her administrative assistant. PSAMF ¶¶ 57-59. Ms. McClain was already an employee at MAS, and she learned of the job opening through an internal posting before it was posted online. PSAMF ¶ 56. She approached Ms. Joy about her interest in the role. PSAMF ¶ 58; DRPSAMF ¶ 58. She began to take over some of the job duties in late September and early October, and eventually fully transferred to the new role, in which she understood that her work would primarily be assisting Ms. Proulx as well as others in the office. PRDSMF ¶ 85; PSAMF ¶¶ 57, 59; DRPSAMF ¶ 57, 59.
The scope of Ms. McLain's responsibilities in the administrative assistant role is the source of some dispute between the parties. MAS asserts that Ms. McLain performed work for the entire Westbrook office, and that she completed elder care assignments. DSMF ¶ 89. In support of its position, MAS cites Ms. McLain's deposition testimony:
Q. What percent of your work was dedicated to assisting Kim as opposed to the rest of the office?
[MR. BROOKS: Object to the form of the question. If you understand, you can answer.]
A. I feel that it was 100 percent for the office because Kim is part of the office. There were some duties that I took over that Kim used to do and there were several other things that I assisted with the office that I would assist other people in the office, so I don't know what a percentage would be.
Q. What were your responsibilities as the administrative assistant?
A. It grew over time because we were just trying to figure out what my duties would be and I also had a caseload until the end of November, so I didn't have 40 hours a week to do that. I started with payroll and I also tallied group supervision and then there were other things. I helped assist with the quarterly visit reports for elder home care. I assisted with - with cleaning up the elder home care chart room, filing, I spent a couple weeks doing that, so there were several other things.
McLain Dep. at 20:5-25.
Ms. Ferrante denies that Ms. McLain performed work for the entire Westbrook office and that she assisted with other tasks. PRDSMF ¶ 89. In support of her position, Ms. Ferrante points to Ms. McLain's deposition testimony that she understood her work would primarily be assisting Ms. Proulx. PRDSMF ¶ 89. As presented by the parties, the record regarding the scope of Ms. McLain's role is somewhat limited, but both parties' statements regarding scope can coexist. It is possible Ms. McLain's role was to primarily assist Ms. Proulx, but also encompassed completing tasks for others in the Westbrook office. Therefore, the Court includes both parties' statements regarding the scope of Ms. McLain's role.
10. Ms. McLain's Overlapping Responsibilities and its Impact on Ms. Ferrante's Role
In Ms. Ferrante's view, her job responsibilities changed significantly after MAS hired Ms. McLain in September. PRDSMF ¶ 85. Ms. Ferrante asserts that either by September or October 2011,  Ms. McLain began to take over some of her administrative duties, and began to take over her day to day responsibilities. PSAMF ¶¶ 60, 61; DRPSAMF ¶¶ 60, 61. In October 2011, Ms. Ferrante noticed that Ms. McLain was doing a lot of the things that Ms. Ferrante typically did during her workday. PSAMF ¶ 71; DRPSAMF ¶ 71. On November 30, 2011, Ms. Ferrante noticed that Ms. McLain had filled out part of an intake form, a task that Ms. Ferrante was previously responsible for. PSAMF ¶ 88.
11. General Changes to Ms. Ferrante's Role
Ms. Ferrante's position description as Ms. Proulx's administrative assistant listed thirty-one duties, including large and small projects. PSAMF ¶ 54; DRPSAMF ¶ 54; PRDSMF ¶ 88. During her employment at MAS, Ms. Ferrante never received a memo regarding a change to her job description, nor was she told that her job description or her responsibilities were changing. DSMF ¶ 90; PRDSMF ¶ 90. One of the primary functions of Ms. Ferrante's job was maintaining client charts. DSMF ¶ 103; PRDSMF ¶ 103. Ms. Ferrante's position description also included general office duties, and if Ms. Proulx did not ask her to do those duties, she felt was losing her responsibility for that line item on her job description. PRDSMF ¶ 91.
Ms. Ferrante acknowledges that in mid-October 2011, she had work to do, was productive, gainfully employed, and was completing tasks outlined in her job description. DSMF ¶¶ 96, 97; PRDSMF ¶¶ 96, 97. However, when she completed her projects, "they were done." PSAMF ¶ 73; DRPSAMF ¶ 73.
On November 2, 2011, Ms. Proulx gave Ms. McLain a list of tasks to complete while Ms. Proulx was away on vacation, tasks previously Ms. Ferrante's responsibility. PSAMF ¶ 75; DRPSAMF ¶ 75. On or around December 2, 2011, Ms. Ferrante wrote that, "[m]y job is being reduced to nothing." PSAMF ¶ 90; DRPSAMF ¶ 90. By December 2, Ms. Ferrante was "a photocopy and file person, and that was the extent of [her] duties"; all of her responsibilities had been taken away. PSAMF ¶ 92; DRPSAMF ¶ 92. Ms. Ferrante feared that her job performance was being scrutinized and singled out. PSAMF ¶ 95; DRPSAMF ¶ 95.
12. Muriel Blanc's Discussions with Kim Proulx Regarding Stephanie Ferrante's Claim
On or about September 14, 2011, Ms. Proulx informed Ms. Blanc, a coworker of Ms. Ferrante's, that Ms. Ferrante had filed a hostile environment lawsuit, and that Ms. Proulx and Ms. Joy had "looked it up" and discovered that Ms. Ferrante could receive $300, 000. PSAMF ¶ 62; DRPSAMF ¶ 62. Ms. Proulx then warned Ms. Blanc that she was "not allowed to talk to Stephanie". PSAMF ¶ 63; DRPSAMF ¶ 63.
Ms. Blanc did not heed Ms. Proulx's warning, however. On or about September 16, 2011, Ms. Blanc told Ms. Ferrante that it was wrong and illegal for MAS to harass her because of the lawsuit and to prohibit co-workers from speaking to her. PSAMF ¶ 64; DRPSAMF ¶ 64. On one occasion after Ms. Blanc spoke to Ms. Ferrante, Ms. Proulx "stormed into" Ms. Ferrante's cubicle, demanding some paperwork. PSAMF ¶ 65; DRPSAMF ¶ 65. On or about September 20, 2011, Ms. Ferrante said good morning to Ms. Blanc, who in turn complimented Ms. Ferrante on her boots; a couple of minutes later, Ms. Proulx asked Ms. Blanc what she and Ms. Ferrante were talking about. PSAMF ¶ 66; DRPSAMF ¶ 66. On or about October 4, 2011, Ms. Blanc said hello to Ms. Ferrante, prompting Ms. Proulx to "immediately badger" Ms. Blanc as to what they were talking about. PSAMF ¶ 67; DRPSAMF ¶ 67.
As Ms. Blanc continued to maintain contact with Ms. Ferrante, management "began to retaliate" against Ms. Blanc; for example, she was not granted promised time off, and Ms. Proulx was rude to Ms. Blanc when she would see her talk with Ms. Ferrante. PSAMF ¶¶ 68, 69, 70; DRPSAMF ¶¶ 68, 69, 70.
13. Ms. Ferrante Becomes Increasingly Isolated
Beginning either late June or early July, 2011, Ms. Ferrante began to feel ostracized by her co-workers, especially when Ms. Wing was present. PSAMF ¶ 27; DRPSAMF ¶ 27. MAS management discouraged employees from speaking with Ms. Ferrante. PRDSMF ¶ 98; see also PSAMF ¶ 63. She cites a MHRC complaint filed by Muriel Blanc, another former coworker of Ms. Ferrante's. See Blanc MHRC Compl. In her complaint, Ms. Blanc stated that on September 14, 2011, Ms. Proulx told her that Ms. Ferrante had filed a hostile environment lawsuit, and that she was "not allowed to talk to" Ms. Ferrante. Id. ¶ 3. On or about December 2, 2011, Ms. Ferrante wrote that, "[t]he majority of my coworkers do not talk to me, those that do know they may be reprimanded for doing so... I feel like I am totally alone. I am happy the weekend is near though, because it has been a long, horrible week here at MAS and I am drained physically and emotionally." PRDSMF Attach. 12, Dec. 2, 2011 Mem. for Record, PageID # 665 (ECF No. 42-12) ( Dec. 2 MFR ). Ms. Ferrante submitted a request for leave, citing "workplace harassment" as the reason. DSMF ¶ 110; PRDSMF ¶ 110.
On November 2, 2011, Ms. Ferrante was not involved or invited to a "Section 28" meeting with supervisors. PSAMF ¶ 75; DRPSAMF ¶ 75.
On November 4, 2011, Ms. Ferrante did not want to go to work because of the stress. PSAMF ¶ 76; DRPSAMF ¶ 76. At work, she discovered that Ms. McClain had taken over audits from her and Ms. Ferrante wrote that Ms. McClain "is doing my job and they are trying to hide it. I feel like am going to throw up." Id.
On November 8, 2011, Ms. Ferrante entered Ms. Proulx's office and Ms. Proulx and Ms. McLain were there; no one acknowledged Ms. Ferrante. PSAMF ¶ 78; DRPSAMF ¶ 78.
On November 11, 2011, Ms. Ferrante documented that she did not want to go to work because her duties had been taken away from her and wrote, "I honestly really don't know what I am going to do today." PSAMF ¶ 79; DRPSAMF ¶ 79.
Finally, MAS says that the "remainder of the statements in the MFR [is] speculation, not fact." DRPSAMF ¶ 76. However, to the extent Ms. Ferrante's memoranda for record contain speculation, the Court has characterized the statements as her perceptions.
On November 14, 2011, Ms. Proulx told Ms. Ferrante to bring in her keys so that Ms. McLain could also use them. PSAMF ¶ 80; DRPSAMF ¶ 80. Ms. Ferrante feared she would be terminated the following day. Id.
On November 15, 2011, Ms. Ferrante learned that Ms. McLain was now doing payroll. PSAMF ¶ 81; DRPSAMF ¶ 81. Later that morning, she noticed the MAS Christmas party sheet; she did not have an invitation and Ms. McClain had taken over Ms. Ferrante's duties to organize such events. PSAMF ¶ 81; DRPSAMF ¶ 81. Ms. Ferrante thought that organizing events of that type was one of her duties, and felt "reduced to a file clerk", "worthless and upset", and felt "tears welling up" in her eyes. PSAMF ¶ 81; DRPSAMF ¶ 81.
On November 16, 2011, Ms. Proulx falsely blamed Ms. Ferrante for misfiling. PSAMF ¶ 82; DRPSAMF ¶ 82. On November 17, 2011, Ms. McClain asked Ms. Ferrante whether she would be part of a Secret Santa [gift] exchange and give money to Mr. Johnson and others in the NH office for gifts. PSAMF ¶ 83; DRPSAMF ¶ 83. When Ms. Ferrante refused, MAS quickly posted her response, thus publicizing it to all employees. PSAMF ¶ 83; DRPSAMF ¶ 83. On November 18, 2011, Ms. Proulx emailed Ms. Ferrante and falsely accused her of making filing errors. PSAMF ¶ 84; DRPSAMF ¶ 84. Ms. Ferrante responded to Ms. Proulx's email, complaining to her of continued "harassment and retaliation". PSAMF ¶ 85; DRPSAMF ¶ 85.
On November 28, 2011, everyone in the office ate lunch in the conference room, but no one asked Ms. Ferrante if she wanted to join them. PSAMF ¶ 86; DRPSAMF ¶ 86.
On November 29, 2011, Ms. Ferrante found a staff roster on a photocopier that did not have her name on it, and brought the omission to Ms. Proulx's attention. PSAMF ¶ 87; DRPSAMF ¶ 87.
On November 30, 2011, a Section 28 meeting was held that Ms. Proulx attended and Ms. Ferrante was not included. PSAMF ¶ 88; DRPSAMF ¶ 88. That day, Mr. Johnson arrived at the office and nearly all staff had lunch together in the conference room, but Ms. Ferrante was not invited to join them. PSAMF ¶ 88; DRPSAMF ¶ 88.
On December 1, 2011, Ms. Proulx distributed a winter call chart and staff roster to the entire office, and Ms. Ferrante's name was not on the staff roster. PSAMF ¶ 89; DRPSAMF ¶ 89. Ms. Proulx distributed an updated chart a short time later that still did not include Ms. Ferrante's name. PSAMF ¶ 89; DRPSAMF ¶ 89.
On December 2, 2011, Ms. Ferrante arrived at the MAS office feeling anxious. PSAMF ¶ 90. She felt "totally alone", that her "job [was] reduced to nothing", that she was "getting blamed for all mistakes occurring within the Children's Service charts", and recorded that the majority of her coworkers were not talking to her. PSAMF ¶ 90. At 2:45 p.m. that day, Ms. Ferrante requested leave because of "workplace harassment." PSAMF ¶ 91; DRPSAMF ¶ 91.
14. Ms. Ferrante was not Trained on Six Tasks in Her Job Description
Ms. Ferrante identified six tasks in her job description that she believed she did not receive adequate training for. DSMF ¶ 83; PRDSMF ¶ 83. After August 17, 2011, Ms. Ferrante believes that she did not get job training she had hoped to receive, including: (1) how Ms. Proulx liked her minutes; (2) discharging clients in "Home Trak"; (3) audit procedures; (4) printing off APS forms and getting into the APS system; (5) payroll and billing training; (6) monthly supervision memos; and (7) following government laws and company policies. DSMF ¶ 84; PRDSMF ¶ 84.
On September 19, 2011, Ms. Proulx offered to provide Ms. Ferrante with more training on how to file, but Ms. Ferrante did not accept her offer because she felt she already knew how to file. DSMF ¶ 92; PRDSMF ¶ 92. Ms. Ferrante did not request additional training for the items on her list. DSMF ¶ 93; PRDSMF ¶ 93.
15. The October 2011 Quarterly Audit
In October 2011, Ms. Proulx asked Ms. McLain and Ms. Jess Arnold to perform the quarterly audit. DSMF ¶ 94; PRDSMF ¶ 94. Ms. Proulx asked them to do it because "it was getting too close to the time it was due and was not done". DSMF ¶ 94. Ms. Ferrante "asked about the audit and [she] was never given any answers about the audit to everyone [she] asked." PRDSMF ¶¶ 94, 95. She saw coworkers with audit sheets and asked them what they were doing but no one would tell her. PRDSMF ¶¶ 94, 95 (citing Ferrante Dep. 7 at 193: 3-6).
16. Leave Requests
On or about October 26, 2011, Ms. Ferrante placed a request in Ms. Proulx's office bin to take time off on November 3, 2011 to attend a medical appointment. DSMF Additional Attachs. Attach. 2, Oct. 31, 2011 Mem. for Record, PageID # 482 (ECF No. 41-2) ( Oct. 31 MFR ). On October 31, Ms. Proulx sent an email to MAS staff that stated "a lot of staff" were taking vacation in November, included a list of those with approved leave, and stated that she could not approve any more time off that month. PRDSMF Attach. 11, Oct. 31, 2011 Email from Kim Proulx to MAS Staff, Page ID# 648 (ECF No. 42-11) ( Oct. 31 Proulx Email ). Ms. Ferrante's name was not on the list of approved leave. PSAMF ¶ 74; DRPSAMF ¶ 74; Oct. 31 MFR. Ms. Ferrante emailed Ms. Proulx asking for clarification, and Ms. Proulx asked to see her in her office. Oct. 31 MFR. Ms. Proulx said that she did not receive the request slip; Ms. Ferrante found it in one of Ms. Proulx's office bins and handed it to her for approval, which she granted. Oct. 31 MFR.
17. Ms. Ferrante Resigns
Ms. Ferrante resigned on December 5, 2011, and in her view, her resignation was caused by months of harassment and retaliation, bringing her to the point where she could not take it any longer. PSAMF ¶ 96; DRPSAMF ¶ 96.
II. THE PARTIES' POSITIONS
A. Count I: Sex Discrimination
1. MAS's Motion
MAS's position is, in essence, that Ms. Ferrante's claim fails as a matter of law because she cannot make out a prima facie case for a sexually hostile work environment. Def.'s Mot. at 2. Specifically, MAS argues she has failed to establish (1) that harassment was based on her sex, (2) that the harassment was so severe or pervasive to alter the conditions of her work environment, or (3) that some basis for employer liability exists. Def.'s Mot. at 3-10.
MAS contends that Ms. Ferrante cannot prove that the "harassment occurred because she was a woman, instead, the evidence shows that the alleged statements of a sexual nature were generally made to groups of women and not directed at Ms. Ferrante...." Id. at 3. MAS argues that because Ms. Ferrante "was part of an allfemale team supervised by a female, " she has to meet the "high burden of proof in same-sex hostile work environment cases" set forth in Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998). Id.
MAS concedes that Ms. Wing's statements "maybe have been unprofessional and vulgar, " but argues that "there is no evidence Ms. Wing made them because of' [Ms. Ferrante's], or anyone else's, sex." Id. at 5. MAS asserts that Ms. Ferrante's claim fails under the Oncale test because Ms. Ferrante (1) "has not alleged, nor is there evidence to support, a conclusion that Ms. Wing is homosexual or any of her alleged conduct was motivated by sexual desire", (2) "has not alleged, nor is there any evidence to support, Ms. Wing was motivated by a general hostility toward women", and (3) has offered "no comparative evidence that Ms. Wing treated men and women differently." Id. at 4-5. On the third point, MAS argues that Ms. Ferrante "cannot offer direct comparative evidence to support a same-sex sexual harassment claim" because the workplace was not mixed-sex. Id. at 5.
Next, MAS contends that "the behavior alleged was not sufficiently severe or pervasive to alter the conditions of employment." Id. MAS maintains that Ms. Ferrante has identified only six comments during May and June 2011, and that the comments "are insufficient to support [Ms. Ferrante's] sexually hostile work environment claim" because (1) "the comments were infrequent; the record reveals six comments over approximately fifty (50) days when Ms. Ferrante reported to Ms. Wing, with only five allegedly occurring at work", (2) "Ms. Wing's comments in no way impaired [Ms. Ferrante's] ability to effectively complete her job, nor altered the terms and conditions of her employment". Id. at 6-7. Specifically, MAS notes, Ms. Ferrante "admits that after Ms. Wing shared her scuba Steve' story[, ]... [Ms. Ferrante] went back to work", and points out that Ms. Ferrante "could voluntarily remove herself from the allegedly objective conduct" at the restaurant after work on June 17, 2011, but "chose not to." Id. at 7-8.
Finally, MAS argues that "Ms. Ferrante's sexual harassment claim fails because there is no basis for employer liability." Id. at 8. MAS notes that it "has a policy against unlawful harassment, provides employee training, and... has [the policy] posted in the workplace". Id. at 9. MAS maintains that, prior to receiving the EEOC charge on August 9, 2011, it had no notice that Ms. Wing's comments were sexual in nature. Id. at 8. Moreover, MAS argues, it responded to Ms. Ferrante's complaint "prompt[ly] and effective[ly] with a job change only a few days later" and gave Ms. Ferrante "a temporary (later permanent) transfer to another job with a different supervisor and a pay raise." Id. at 9. MAS asserts that it "conducted an immediate investigation of [Ms. Ferrante's] complaints, and ultimately terminated the employment of Ms. Wing on September 8, 2011." Id. at 9. MAS also characterizes Ms. Ferrante's behavior after her transfer as "refusal to engage MAS to provide additional evidence" of the alleged sexual harassment, and as "unreasonable". Id.
2. Ms. Ferrante's Opposition
In response, Ms. Ferrante insists that she was harassed based upon sex when Ms. Wing made the offensive sexual comments, Ms. Ferrante "presented evidence of her discomfort" to Ms. Wing, and in response Ms. Wing not only did not "curb the offensive behavior, but she increased the sex-specific commentary right at Ms. Ferrante's cubicle." Pl.'s Opp'n at 11. Additionally, she maintains that Oncale actually supports her position, and that the "holdings in Oncal[e ] also make clear a trier of fact could reasonably infer the harassment was based on sex." Id. Specifically, she points out that the Oncale Court held that Title VII does not bar same-sex discrimination cases, and that the harassing conduct "need not be motivated by sexual desire". Id. She asserts that a trier of fact "could reasonably [infer] that Ms. Wing's offensive sexual comments did amount to harassment based on sex given the use of sex-specific language directed in the presence of Ms. Ferrante and with knowledge that such behavior created a hostile work environment for Ms. Ferrante". Id.
Next, Ms. Ferrante disputes MAS's argument that the harassment at issue was not sufficiently pervasive, and asserts that a triable issue exists regarding whether the harassment was sufficiently pervasive. Id. at 12. She contends that she testified that the sexual comments by Ms. Wing "took place on a daily basis from the outset of her employment... and continued... [for] a period of over two months". Id.
Finally, Ms. Ferrante insists that a triable issue of fact exists with respect to employer liability. Pl.'s Opp'n at 12. She argues that MAS has not satisfied either prong of the so-called Faragher affirmative defense. Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). She contends that a triable issue of fact exists with respect to the first prong because she "denies ever receiving notice or training of the sexual harassment policy prior to making her complaint". Id. She also points out that "Mr. Johnson admits he did not even investigate the sexual harassment aspect of the complaint." Id. Ms. Ferrante argues that she "did present evidence of speaking to Ms. Joy on June 28th and complaining of the sexual comments", that she "gave notice of the sexual misconduct in her statement dated July 5, 2011, describing it as a hostile work environment", and that she "repeated what she had told Ms. Joy" when she spoke to Mr. Johnson on July 7, 2011. Id. at 13. She contends that "a trier of fact could reasonably infer [she] did give notice of the sexual harassment to MAS in June and July, but MAS did not investigate the entirety of the claim". Id.
3. MAS's Reply
In reply, MAS argues that Ms. Ferrante "offers no evidence that the alleged comments by Wing were because of [Ms. Ferrante's] gender" and that Ms. Ferrante has failed to show that "Wing was hostile to the presence of women in the workplace." Def.'s Reply at 3-4 (emphasis in original). MAS insists that "the mere use of language regarding sex is insufficient to state a claim" of sex-based harassment. Id. at 4. MAS also notes that Ms. Ferrante failed "to even acknowledge that [she] worked in an all-female environment, [which] render[ed] inapplicable any consideration of comparative evidence". Id.
Next, MAS argues that Ms. Ferrante's arguments regarding the pervasiveness of the harassment are merely "[t]estimony reiterating allegations" which are insufficient to create genuine issues of material fact "without providing specific factual information.'" Id. (citing In re Light Cigarettes Marketing Sales Practices Litigation, 751 F.Supp.2d 196, 202 (D. Me. 2010)). MAS asserts that such "nonspecific allegations of frequent harassment (especially in the face of [Ms. Ferrante's] extensive memoranda for record, ' that records only a handful of incidents) are insufficient as a matter of law." Id. at 4.
Additionally, MAS disputes Ms. Ferrante's argument regarding employer liability. Id. MAS acknowledges that there is a dispute as to whether Ms. Ferrante was trained on the company's sexual harassment policy, but insists that issue "is not material as [Ms. Ferrante] was aware of her rights considering the MHRC rights posting, as well as her knowledge that talking to Ms. Joy was the appropriate course." Id. at 4 n.13 (internal citation omitted). Moreover, MAS asserts, "[i]n small work environments, as at issue here, there is no genuine dispute that MAS took reasonable steps to inform employees of their rights." Id.
Finally, MAS disputes Ms. Ferrante's assertion that it cannot satisfy the elements of a Faragher affirmative defense. Id. at 4. MAS contends that the Maine Law Court has not adopted the Faragher standard, and instead employs the standard set in Watt v. UniFirst Corp., 2009 ME 47, ¶ 47, 969 A.2d 897, 904, that the employer action taken must be "immediate and appropriate." Id. at 5. Applying that standard, MAS contends that "as soon as" Ms. Ferrante complained, "immediate steps were taken", and that MAS "attempted to further determine whether [Ms. Ferrante] was experiencing ongoing issues", despite Ms. Ferrante's "refus[al] to cooperate with the efforts." Id.
B. Count II: Retaliation
1. MAS's Motion
MAS argues that Ms. Ferrante "experienced no unlawful retaliation and instead her claim rests entirely on perceived slights that are insufficient to establish a retaliation claim under the MHRA as a matter of law." Def.'s Mot. at 10. As a threshold matter, MAS insists that Ms. Ferrante "did not exhaust her administrative remedies with regard to any alleged act of retaliation after filing her charge with the EEOC on July 26, 2011, and thus she is not entitled to damages or attorney[']s fees for those claims". Id. at 11 (citing 5 M.R.S. § 4611, "[a]n aggrieved person... may file a complaint under oath with the commission stating the facts concerning the alleged discrimination, except that a complaint must be filed with the commission not more than 300 days after the alleged act of unlawful discrimination").
MAS argues that the Court should only consider events occurring prior to July 26, 2011 because that was the date Ms. Ferrante filed her EEOC charge. Id. at 10. MAS contends that the retaliatory activity "involved discrete acts", Id. at 13, and that Ms. Ferrante's retaliation claims are not "like or reasonably related to the allegations raised in her administrative charge'". Id. at 13 n.7. Thus, MAS argues, the Court should not consider an intake questionnaire that Ms. Ferrante signed and completed on August 22, 2011, which alleged that meetings on August 17 and August 18 were attempts to coerce her into dropping her charge. Id. at 10-11. MAS maintains that "an intake questionnaire form is not signed under oath, and therefore, is not considered to be a charge of discrimination'". Id. at 11 (quoting Frank v. L.L. Bean, Inc., No. Civ. 04-221-P-S, 2006 WL 47557, at *6 (D. Me. Jan. 9, 2006)). Thus, MAS contends, the Court can only consider the facts covered in Ms. Ferrante's EEOC charge. Id. at 13.
Next, MAS argues that Ms. Ferrante "cannot make out a prima facie case of retaliation as her complaint to MAS's Human Resources Manager on June 28, 2011, about non-specific chaotic, hostile, and threatening' work environment in Ms. Wing's department was not protected activity." Id. at 14. MAS maintains that Ms. Ferrante "[a]t no time" mentioned "any facts that could reasonably lead Ms. Joy or anyone else at MAS to believe that [Ms. Ferrante] was complaining about a sexually' hostile work environment." Id. at 14-15. MAS notes that it "was careful" to have Ms. Ferrante put her concerns in writing, and although MAS acknowledges that Ms. Ferrante used the "familiar buzzword hostile'", the word "sex" was "conspicuously absent." Id. at 15. MAS maintains that Ms. Ferrante "failed to relay any of the ribald comments she now attributes to Ms. Wing" when she "had every opportunity... to be specific." Id. at 15. Thus, MAS concludes, Ms. Ferrante's "failure to give any notice to MAS that she was complaining about a potentially unlawful sexual conduct renders her June 28 complaint to MAS unprotected" and, because the retaliation claim is tethered to the unprotected MHRA complaint, bars Ms. Ferrante's retaliation claim. Id. at 15.
Further, MAS argues that Ms. Ferrante cannot prove that MAS took adverse action against her. Id. at 15. Ms. Wing's statement to Ms. Ferrante that "her job was being done incorrectly", in the absence of other action, is not retaliatory conduct, MAS contends. In fact, MAS points out, "the evidence only points to positive job actions: a desirable transfer, a new supervisor, and a higher rate of pay." Id. at 16. Additionally, MAS argues, none of the other actions Ms. Ferrante points to-MAS's attempts to discuss her EEOC charge, removal of job duties, and "shunning" of Ms. Ferrante-either individually or collectively qualify as adverse actions as a matter of law. Id. at 16-19. Moreover, MAS contends, even if MAS asked her to withdraw her charge, such a request is not retaliatory conduct. Id. at 16 (citing Torres v. Pisano, 116 F.3d 625, 640 (2nd Cir. 1997)).
Finally, MAS argues that even if Ms. Ferrante can prove an adverse employment action, she cannot prove that the adverse employment action was causally related to Ms. Ferrante's protected activity. Id. at 20. MAS insists that the EEOC charge and Ms. Ferrante's resignation four months later "did not occur in close proximity' and there is no evidence [MAS] was attempting to terminate [Ms. Ferrante] or force her to quit because she had filed the Charge". Id. at 20.
2. Ms. Ferrante's Opposition
Ms. Ferrante maintains that she can prove all of the prima facie elements of a retaliation claim: (1) that she engaged in protected activity, (2) that she was subjected to an adverse employment action, and (3) that a causal link exists between the protected activity and the adverse action. Pl.'s Opp'n at 14 (citing Bowen v. Dep't of Human Servs., 606 A.2d 1051, 1054 (Me. 1992)).
Ms. Ferrante states that "it is undisputed that Ferrante filed a verified administrative complaint under oath alleging that she had been the victim of sex discrimination and retaliation....[and] that [MAS] received notice of the administrative complaint." Id. at 14. Ms. Ferrante contends that MAS has failed to establish as a matter of law that she did not engage in protected activity because MAS's motion "does not address the administrative complaint", which Ms. Ferrante asserts is the protected activity at issue. Id.
Next, Ms. Ferrante asserts that she has presented "overwhelming evidence of the adverse actions" taken against her after she filed her administrative charges. Id. at 16. She contends that MAS's position regarding the scope of activity that the Court can consider has been rejected, and that "adverse employment actions arising out of the original discrimination complaint and occurring after the initial agency filing do not have to be exhausted." Id. at 17. Ms. Ferrante asserts that her "additional allegations of adverse actions simply flow chronologically... after her administrative complaint." Id. She argues that the "discrete acts" approach discussed in Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), does not apply, and that the controlling precedent is Clockedile. Id. (citing Clockedile v. New Hampshire Dep't of Corrs., 245 F.3d 1, 6 (1st Cir. 2001)). Ms. Ferrante also disputes MAS's position that she cannot show MAS took adverse actions against her, asserting that "adverse actions include those which could dissuade an employee or former employee' from making complaints of retaliation.'" Id. at 17-18 (quoting Thayer Corp. v. Reed, 2011 U.S. Dist. LEXIS 74229, at *62 (D. Me. July 11, 2011)).
Finally, Ms. Ferrante argues that she has presented evidence that a causal link exists between her administrative complaint and her constructive discharge. Id. at 19. She asserts that MAS began "pressuring [her] to withdraw her complaint, reducing her responsibilities, advertising for her replacement[, ] and hiring Ms. Mc[L]ain" within days of receiving notice of the protected activity. Id. This, she states, is sufficient for a trier of fact to reasonably infer that "the temporal link was less than thirty days." Id.
3. MAS's Reply
First, in response to Ms. Ferrante's assertion that "it is undisputed that Ferrante filed a verified administrative complaint under oath alleging that she had been the victim of sex discrimination", MAS states that Ms. Ferrante "never filed a charge under oath' with the MHRC". Def.'s Reply at 1. MAS notes that the Maine Human Rights Act provides that an "aggrieved person... may file a complaint under oath with the commission" and that Maine Human Rights Commission regulations provide that "[c]omplaints must be sworn to under oath before a Notary Public or other person authorized by law to administer oaths, or before a representative of the EEOC and HUD...." Id. at 1; see 5 M.R.S. § 4611; Me. Human Rights Comm'n R. 2.02(E). MAS then points to Ms. Ferrante's July 26, 2011 charge, stating that although Ms. Ferrante "appears to have signed in the place on the form where she swears' that the charge is true, there is no signature from a notary or other authorized person on the form." Def.'s Reply at 2. MAS argues that Ms. Ferrante cannot cure this omission because the MHRC already dismissed her complaint, and thus Ms. Ferrante has not administratively exhausted her MHRA claims, is not entitled to any damages provided for in 5 M.R.S. § 4613, is not entitled to injunctive relief, and can recover no remedies under the MHRA. Id.
Next, MAS insists that the Court cannot consider any retaliatory action that occurred after July 26, 2011 because Ms. Ferrante never amended her charge, "thereby denying MAS an opportunity to address before the EEOC her allegations of ostracism and elimination of job duties." Id. at 5. MAS insists that Ms. Ferrante's reliance on Clockedile is misplaced, and that even if the Court accepts the "relaxed standard" set forth in Clockedile, the Court could still not consider activity after July 26, 2011 because of the "dissimilar nature of the allegations in the charge versus the allegations brought later". Id. (citing Clockedile, 245 F.3d at 6). MAS maintains that it took prompt steps to ensure that Ms. Wing "would never bother [Ms. Ferrante] again", and that Ms. Ferrante's current claim is "so distinct from her original charge that it cannot be said to have arisen out of the original' complaint". Id.
Finally, MAS maintains that Ms. Ferrante did not experience an adverse employment action, points to Ms. Ferrante's MFRs as evidence that "no reasonable person could conclude that MAS subjected [Ms. Ferrante] to an adverse employment action" and disputes that Ms. Ferrante was ostracized or stripped of her job responsibilities. Id. at 6-7. MAS concludes by arguing that even if the retaliation was causally connected to the adverse employment action, that alone is insufficient to generate a genuine issue of material fact. Id. at 7.
C. Count III: Constructive Discharge
1. MAS's Motion
MAS argues that Ms. Ferrante's constructive discharge claim fails as a matter of law because the Maine Law Court has held that constructive discharge is not an independent cause of action. Id. at 20 (citing Levesque v. Androscoggin Cnty., 2012 ME 114, ¶¶ 8-9, 56 A.3d 1227, 1229).
2. Ms. Ferrante's Opposition
Ms. Ferrante maintains that "the claims for sexual harassment and retaliation are not subject to summary judgment, and thus neither is the claim for constructive discharge". Pl.'s Opp'n at 20.
D. Failure to Exhaust Administrative Remedies
Ms. Ferrante stated in her opposition brief that she filed a "verified administrative complaint under oath". Id. at 14. MAS pounced on this, contending that because Ms. Ferrante's July 26, 2011 charge does not contain a signature from a notary or other authorized person, the complaint does not satisfy the "under oath" requirements of the MHRC Rules and Regulations, and thus that Ms. Ferrante never administratively exhausted her claims under the MHRA, making her claims moot. Def.'s Reply at 2.
A. Summary Judgment Standard
Summary judgment is appropriate only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A fact is "material" if it "has the potential to change the outcome of the suit." Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir. 2011) (quoting Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010)). A dispute is "genuine" if "a reasonable jury could resolve the point in favor of the nonmoving party." Id. (quoting McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995)).
Once this evidence is supplied by the moving party, the nonmovant must "produce specific facts, in suitable evidentiary form, to... establish the presence of a trialworthy issue.'" Triangle Trading Co., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (quoting Morris v. Gov't Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994)). In other words, the non-moving party must "present enough competent evidence' to enable a factfinder to decide in its favor on the disputed claims." Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002) (quoting Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir. 1993)).
The Court then "views the facts and draws all reasonable inferences in favor of the nonmoving party." Ophthalmic Surgeons, Ltd. v. Paychex, Inc., 632 F.3d 31, 35 (1st Cir. 2011). However, the Court "afford[s] no evidentiary weight to conclusory allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative.'" Tropigas, 637 F.3d at 56 (quoting Rogan v. City of Boston, 267 F.3d 24, 27 (1st Cir. 2001)); accord Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir. 2009).
B. Failure to Exhaust Administrative Remedies
To place MAS's position in context, on July 26, 2011, Ms. Ferrante filed a single Charge of Discrimination with both the EEOC and the MHRC. Def.'s Reply Attach. 2, Charge of Discrimination ( Ferrante Charge ). In the charge Ms. Ferrante sets forth three paragraphs, the first describing the events underlying her charge, the second stating that she was holding the supervisor as responsible for the actions occurring within the office that made it a hostile work environment, and the third alleging that she had been discriminated against because of her sex/gender and sexually harassed. Id. at 1. The form contains the following affirmation on the bottom left:
I declare under penalty of perjury that the above is true and correct. Id. Ms. Ferrante signed that declaration and dated it July 26, 2011. Id.
To the right of this declaration is a box that says: "NOTARY - When necessary for State and Local Agency Requirements." Id. The affirmation reads:
I swear or affirm that I have read the above charge and that it is true to the best of my knowledge, information and belief.
Id. The signature line above this affirmance is blank. Id. In the place where a notary public would place the seal, confirming that Ms. Ferrante had subscribed and sworn to the statement, Ms. Ferrante's signature appears, but there is no signature or seal of a notary public. Id.
First, the Court observes that Ms. Ferrante's charge would meet the verification requirements of federal law. Under 42 U.S.C. § 2000e-5(b), Title VII mandates that a charge be "in writing under oath or affirmation" and EEOC regulations require that a charge "shall be in writing and signed and shall be verified." 29 C.F.R. § 1601.9. The EEOC regulations define "verified" to mean "sworn to or affirmed before a notary public, designated representative of the [EEOC] or other person duly authorized by law..., or supported by an unsworn declaration in writing under penalty of perjury." 29 C.F.R. § 1601.3. Federal law further provides that, with some unrelated exceptions, whenever a federal law requires a "sworn declaration, verification, certificate, statement, oath or affidavit, in writing of the person making the same (other than a deposition, or oath of office, or an oath required to be taken before a specified official other than a notary public)", an unsworn declaration under penalty of perjury satisfies this requirement. 28 U.S.C. § 1746 (emphasis supplied). Federal courts have held that an unsworn declaration under penalty of perjury, such as the one Ms. Ferrante executed, satisfies the verification requirement. See Green v. Liberty Healthcare Sys., LLC, No. 10-0413, 2010 U.S. Dist. LEXIS 105481, at *9-10 (W.D. La. Oct. 1, 2010); Cobb v. Marshall, 481 F.Supp.2d 1248, 1256 (M.D. Ala. 2007); Fultz v. B.A. Mullican & Mfg. Co., 197 F.Supp.2d 523, 525 (W.D. Va. 2002) ("Fultz complied with the statute by signing and dating the charge underneath the perjury language, again as prescribed").
However, MAS observes that, even though Ms. Ferrante initiated a Title VII claim, she decided not to pursue a federal theory of action and instead decided to proceed only under the MHRA. The MHRA provides:
Any aggrieved person... may file a complaint under oath with the commission stating the facts concerning the alleged discrimination....
5 M.R.S. § 4611. In the Court's view, Ms. Ferrante's declaration meets Maine's statutory requirement. If false, even without a notary public swearing, Ms. Ferrante's declaration under penalty of perjury would likely provide a basis for a criminal prosecution under 17-A M.R.S. § 451 or § 452 for perjury or false swearing.
Nevertheless, MAS contends that Ms. Ferrante's sworn declaration does not comply with the regulatory requirement of MHRC rules:
Complaints must be sworn to under oath before a Notary Public or other person authorized by law to administer oaths, or before a representative of the EEOC and HUD pursuant to work sharing agreements signed between the Commission and the EEOC....Commission staff will reduce the information to writing on the appropriate complaint form and send it to the aggrieved party to be notarized and filed with the Commission.
Me. Human Rights Comm'n R. 2.02(E). MAS demands that the entire complaint be dismissed for failure to comply with this provision.
The Court disagrees. Even though Ms. Ferrante technically violated the MHRC rule-as opposed to the statute-by failing to have her charge notarized, the question remains what remedy should be imposed as a consequence of the violation. MAS cited no case addressing this issue in Maine and no case in which a court has dismissed a case where an aggrieved person declared the truth of the facts under penalty of perjury but neglected to have the statement sworn before a notary. Here, where Ms. Ferrante substantially complied with the "under oath" requirement, the Court will not infer that the failure to swear to the truth of the claim mandates the draconian remedy of dismissal. To the contrary, the Court concludes that equitable defenses are available to this omission and that, applying those equitable defenses, MAS has waived this issue and has demonstrated no prejudice from the omission. Accordingly the Court declines to sanction Ms. Ferrante for the omission.
First, the Court observes that the statement that MAS wants notarized is less assertive than Ms. Ferrante's sworn declaration. The statement that MAS wishes notarized reads:
I swear or affirm that I have read the above charge and that it is true to the best of my knowledge, information and belief.
Ferrante Charge at 1. By contrast, Ms. Ferrante declared under penalty of perjury that the facts in her claim were "true"-with no "best of my knowledge, information and belief" equivocation. Id. The sworn declaration of truth is more meaningful than the notarized swearing of truth to the best of knowledge, information and belief.
MAS argues that Merchant v. Prince George's County, 948 F.Supp.2d 515, 523 (D. Md. May 31, 2013) addresses a similar situation. Def.'s Reply at 2, n.3. It does not. In Merchant, the claimant "never filed a verified, formal charge of discrimination with the EEOC." Merchant, 948 F.Supp.2d at 520. Instead, she claimed that an intake questionnaire satisfied the verification requirement, but the Merchant Court concluded that an intake questionnaire does not meet the verification requirement. Id. at 519-24. The same is true of Frank v. L.L. Bean, Inc., where the employee submitted to the MHRC only a completed intake questionnaire, not "a verified charge (sworn or attested to under penalty of perjury)" until after the limitations period had run. Frank v. L.L. Bean, Inc., 2006 U.S. Dist. LEXIS 867, at *29-30.
MAS cites other federal cases that it claims reached the conclusion that the court enforced the verified charge requirement. See Def.'s Reply at 2, n.3. However, in each of the cited cases the claimant filed no verified statement at all. See Id. at 2, n.3 (citing Balazs v. Liebenthal, 32 F.3d 151, 156 (4th Cir. 1994) ("the filing of a sworn charge of discrimination with the EEOC is a mandatory prerequisite to the validity of the charge")); Danley v. Book of the Month Club, Inc., 921 F.Supp. 1352, 1354 (M.D. Pa. 1996) (employee sent the EEOC an unsworn letter). As the Court noted earlier, Ms. Ferrante's declaration under penalty of perjury would have met the verification requirement under federal law and MAS's cited cases do not stand for a different proposition.
Turning to the MHRA, the Maine Supreme Judicial Court has reiterated that it looks to federal law in general in interpreting the provisions of the MHRA, Batchelder v. Realty Res. Hospitality, LLC, 2007 ME 17, ¶ 15, 914 A.2d 1116, and the United States Supreme Court has ruled that the Title VII time limits are not jurisdictional. See Union P. R.R. v. Bhd. of Locomotive Eng'rs & Trainmen Gen. Comm. of Adjustment, 558 U.S. 67, 82 (2009) (describing the timely complaint requirement in Title VII cases as "nonjurisdictional and forfeitable"); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). In fact, the First Circuit cited Zipes in emphasizing that "the exhaustion requirement is not a jurisdictional prerequisite, but rather is subject to waiver, estoppel, and equitable tolling." Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18, 33 (1st Cir. 2007) (citing Zipes, 455 U.S. at 393). The verification requirement appears to fall within the same rubric. See Maillet v. TD Bank U.S. Holding Co., 981 F.Supp.2d 97, 102 n.6 (D. Mass. 2013) ("The Supreme Court reasoned that EEOC time limits on administrative filings were not jurisdictional because the Title VII jurisdiction provision did not mention time limits, which, like the verification requirement, appeared instead as an entirely separate provision' and did not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts'") (emphasis supplied).
This means that MAS's claim of non-compliance is subject to waiver. Here, the Court concludes that MAS waived any claim that Ms. Ferrante failed to comply with the verification requirement under Maine law in filing her MHRC complaint. Ms. Ferrante filed the charge with the MHRC in late July, 2011 and MAS waited until July 2014, in a reply memorandum, to raise the issue. MAS is too late. EEOC v. World's Finest Chocolate, Inc., 701 F.Supp. 637, 639 (N.D. Ill. 1988) ("[E]ven if § 1746 does require a dated signature, WFC has waived this argument by not raising it until two years after it received the Charge"). Had MAS raised the issue when Ms. Ferrante first filed the charge, she could have readily cured the defect by submitting a notarized affidavit.
Next, to the extent the policy underlying the oath requirement is to deter false and frivolous claims by forcing the aggrieved party to make the charge under oath, this policy has been satisfied by Ms. Ferrante's sworn declaration. MAS has claimed no prejudice resulting from the failure of Ms. Ferrante to swear to the contents of the charge before a notary public and the Court can fathom none. Indeed, if MAS were concerned that Ms. Ferrante failed to affirm the facts underlying her charge under oath before a Notary Public, it cured that concern on September 21, 2012 when its counsel deposed Ms. Ferrante under oath from 10:15 a.m. to 5:26 p.m., Ferrante Dep. 1:12-16, 206:17, a deposition where Ms. Ferrante was "duly sworn by the Notary Public", id. at 5:5-6, and runs 206 pages in length. Id.
The Court declines to dismiss Ms. Ferrante's MHRA complaint based on MAS's late raising of a technical flaw in her charge under MHRC regulations.
C. Count I: Sexual Harassment based on a Hostile Work Environment
The MHRA prohibits employers from discriminating against an employee "because of race or color, sex, sexual orientation, physical or mental disability, religion, age, ancestry or national origin...." 5 M.R.S. § 4572. To succeed on an employment-related claim of sexual harassment based on a hostile work environment, a plaintiff must establish:
(1) That she (or he) is a member of a protected class; (2) she was subjected 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 did in fact perceive it to be so; and (6) that some basis for employer liability has been established.
Watt, 2009 ME 47 ¶, 22, 969 A.2d 897 (quoting Forrest v. Brinker Int'l Payroll Co., 511 F.3d 225, 228 n. 1 (1st Cir. 2007)). "Application of the hostile work environment test requires an assessment of the totality of 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.'" Valentin-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006) (quoting Harris v. Forklift Sys., 510 U.S. 17, 33 (1993)). Although harassment that occurred on only one occasion may be actionable, "the inappropriate conduct must be severe enough to cause the workplace to become hostile or abusive." Doyle v. Dep't of Human Servs., 2003 ME 61 ¶, 23, 824 A.2d 48 (citing Nadeau v. Rainbow Rugs, Inc., 675 A.2d 973, 976 (Me. 1996)). Nevertheless, the elements of the test are intended to be "sufficiently demanding to ensure that Title VII does not become a general civility code.'" Faragher, 524 U.S. 775, 788 (1998) (quoting Oncale, 523 U.S. at 81).
Ms. Ferrante contends that Ms. Wing created a hostile work environment by continuously commenting on women's and men's bodies or discussing topics of a sexually explicit nature on a daily basis for a period of over two months, and which continued despite Ms. Ferrante asking Ms. Wing to stop. MAS does not admit that Ms. Wing made each of the statements alleged by Ms. Ferrante, but the Court credits Ms. Ferrante's version of the events for the purposes of summary judgment. Specifically, MAS contests elements (3), (4), and (6) of Ms. Ferrante's claim. The Court examines each element in turn.
1. Whether Ms. Wing's Harassment Was Based Upon Ms. Ferrante's Sex
In Oncale v. Sundowner , the Supreme Court set the standard for determining employer liability in same-sex hostile work environment claims, and stressed that such claims under Title VII are actionable as long as the " discrimination [was]... because of... sex." Oncale 523 U.S. at 80 (emphasis in original). The Court stated, "[w]e have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words have used sexual content or connotations." Id. at 80. Instead, the critical issue "is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Id. at 80. The Court offered three potential evidentiary paths by which a same-sex plaintiff may show the conduct was based on or because of sex: (1) where the harassment was "motivated by sexual desire"; (2) where the victim is "harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by a general hostility to the presence of women in the workplace"; and (3) direct comparative evidence about how the harasser treated "members of both sexes in a mixed-sex workplace." Id. at 80.
In this case, Ms. Ferrante has not alleged that Ms. Wing was motivated by a sexual desire toward Ms. Ferrante. Nor has Ms. Ferrante presented evidence or argued that Ms. Wing was motivated by a general hostility to the presence of women in the workplace. The dispute between the parties is over whether Ms. Ferrante has provided sufficient direct comparative evidence to satisfy the third evidentiary path laid out by the Supreme Court.
MAS asserts that Ms. Ferrante has presented no evidence to support the conclusion that Ms. Wing treated men and women differently. Def.'s Mot. at 4-5. MAS also contends that the all-female workplace prevents Ms. Ferrante from offering direct comparative evidence to support her claim. Id. at 5. Ms. Ferrante argues that she has at least generated a triable issue of material fact as to "whether Ms. Wing made the sexually offensive comments to all different groups of people" because Ms. Ferrante has presented evidence that Ms. Wing "only made the offensive sexual comments in the presence of women." Pl.'s Opp'n at 11.
Ms. Ferrante has not cited, nor has the Court been able to locate, case law that addresses sexual harassment claims in entirely same-sex workplaces where the plaintiff has not alleged that the harasser is motivated by sexual desire or by a general hostility to the presence of those of her sex in the workplace, nor has she provided direct evidence about how the alleged harasser treated men and women differently. The Court concludes that Ms. Ferrante has failed to meet her burden because she has neither offered nor alleged any direct comparative evidence about how Ms. Wing treated men and women differently. Although the Court certainly does not believe that Ms. Wing's comments and behavior constitute "genuine but innocuous differences in the ways men and women routinely interact with members of the same sex", see Oncale at 81, Ms. Ferrante has failed to show that the comments, while vulgar and offensive, were directed at her because of her sex. Therefore, MAS is entitled to summary judgment as regards Ms. Ferrante's harassment claim.
D. Count II: Retaliation Claim
The MHRA prohibits retaliation whenever an "individual has opposed any act or practice that is unlawful under [the MHRA] or because that individual made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under [the MHRA]." 5 M.R.S. § 4633(1). Where there is no direct evidence of the defendant's retaliatory animus, courts rely on the McDonnell Douglas burden-shifting framework to allocate and order the parties' evidentiary burdens. Dudley v. Augusta Sch. Dep't, 23 F.Supp.2d 85, 92 (D. Me. Nov. 9, 1998). "To establish a prima facie case of retaliation, the employee must show that she engaged in statutorily protected activity; her employer made an employment decision that adversely affected her; and that there was a causal link between the protected activity and the adverse employment action.'" Doyle, 2003 ME 61, ¶ 20, 824 A.2d 48 (quoting Bard v. Bath Iron Works Corp., 590 A.2d 152, 154 (Me. 1991)).
If the employee establishes a causal link by showing that the adverse employment action happened in "close proximity" to the protected conduct, the burden shifts to the employer "to produce some probative evidence to demonstrate a nondiscriminatory reason for the adverse employment action." DiCentes v. Michaud, 1998 ME 227, ¶¶ 14-16, 719 A.2d 509. "Once that evidence has been offered, the burden remains with the employee to persuade the factfinder that there was, in fact, a causal connection between the protected activity and the adverse employment action." Id .; see also Watt, 2009 ME 47 ¶ 35, 969 A.2d 897 ("Because [the employer] has articulated a legitimate reason for the action, the burden remains with [the plaintiff] to persuade the fact-finder that there was, in fact, a causal connection between the protected activity and the adverse employment action." (quotation omitted)).
1. Timeliness of Ms. Ferrante's Charge
Under both Title VII and the Maine Human Rights Act, a timely claim of retaliation must be filed not more than 300 days after the alleged unlawful employment practice occurred. See 42 U.S.C. § 2000e-5(e)(1); 5 M.R.S. § 4611. As the Supreme Court explained, "[t]he timely filing provision only requires that a Title VII plaintiff file a charge within a certain number of days after the unlawful practice happened. It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period." Morgan, 536 U.S. at 117.
The undisputed facts here establish that Ms. Ferrante filed a charge of discrimination on July 26, 2011. The Court concludes that Ms. Ferrante filed a timely claim because the adverse actions complained of occurred within 300 days of filing her charge.
Next, the Court addresses whether it can consider facts related to a retaliation claim not made to the MHRC. The First Circuit has stated:
A claim of retaliation for filing an administrative charge with the EEOC is one of the narrow exceptions to the normal rule of exhaustion of administrative remedies. Such a claim may ordinarily be bootstrapped onto the other Title VII claim or claims arising out of the administrative charge and considered by the district court, even though it has not been put through the administrative process. This is so because such a claim of retaliation is "reasonably related to and grows out of the discrimination complained of to the [EEOC]." In other words, the retaliation claim survives what would otherwise be a failure to exhaust administrative remedies by virtue of its close relation to and origins in the other Title VII discrimination claims.
Franceschi v. U.S. Dept. of Veterans Affairs, 514 F.3d 81, 86-87 (1st Cir. 2008) (quoting Clockedile, 245 F.3d at 6) (internal citations omitted).
MAS leans heavily on the Supreme Court's decision in Morgan, arguing that Ms. Ferrante's charge alleged only one discrete act of retaliation - the comment by Ms. Wing that Ms. Ferrante was doing her job incorrectly - and that MAS's actions after July 26, 2011 should not be considered because they were not included in Ms. Ferrante's July 26 charge and are dissimilar in nature from the only act of retaliation she alleged. Def.'s Mot. at 11-13.
Ms. Ferrante responds that Morgan is inapplicable and that the First Circuit has unequivocally held that retaliatory adverse employment actions arising out of the original discrimination complaint and occurring after the initial agency filing do not have to be exhausted. Pl.'s Opp'n at 16-17 (citing Clockedile, 245 F.3d at 6).
MAS responds that Clockedile is inapplicable, and that even if it applied to this case that the "dissimilar nature of the allegations in the charge" compared to the allegations brought later is insufficient to demonstrate that the retaliation claim can reasonably be seen as having "arisen out of the original" charge. Def.'s Reply at 5-6.
The allegations in Ms. Ferrante's charge included: (1) her supervisor made comments regarding sex with her husband in front of Ms. Ferrante and others, comments which she continued after Ms. Ferrante told her she should stop; (2) Ms. Ferrante met with human resources on or around June 28, 2011 to voice opposition to what she felt was a "pervasive and unprofessional work environment"; (3) her supervisor questioned her about her meeting with human resources and told her not to go to human resources under any circumstances without informing her first; (4) a meeting on June 29, 2011 held by her supervisor where she said that she "would not be going anywhere"; (5) her supervisor told her on July 1, 2011 that her work was being done incorrectly; (6) Ms. Ferrante requested and received a transfer to a different department; (7) Ms. Ferrante had a meeting with a vice president of the company who apologized for her supervisor's behavior; (8) her supervisor made the office a hostile work environment; and (9) she believed that she had been discriminated against because of her sex and sexually harassed. See Ferrante Charge.
In the Court's view, MAS's argument that Ms. Ferrante failed to exhaust her administrative remedies is misplaced. It is undisputed that Ms. Ferrante did not expressly invoke the MHRA's anti-retaliation provision in her charge, nor do the parties dispute that she did not seek to file an amended charge. However, Ms. Ferrante checked the "Retaliation" box on the charge form, and expressly alleged retaliatory conduct - her supervisor's comment that her work was being done incorrectly - in the body of the charge.
The acts by MAS's agents and employees after July 26, 2011 that Ms. Ferrante complains of, among other things, are: pressure from MAS management to withdraw her charge, being told via email by a vice president at the company that the charge was "completely baseless and reckless", being ostracized by her coworkers, seeing a coworker terminated for speaking on her behalf, and having her job duties removed. When viewed in their totality, the Court concludes, these actions are reasonably related to Ms. Ferrante's charge. See Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 21-22 & n.7 (1st Cir. 2014) (finding that the same factual allegations that formed the basis of plaintiff's discrimination claim also supported her claim that the employer retaliated against her because she filed a sex discrimination EEOC charge).
Having determined that Ms. Ferrante's claims are timely and encompass conduct occurring both before and after she filed her charge, the Court analyzes each of the elements in Ms. Ferrante's prima facie retaliation claim.
2. The Prima Facie Case
i. Whether Ms. Ferrante Engaged in Statutorily Protected Activity
"An employee has engaged in activity protected by Title VII if she has either (1) opposed any practice made an unlawful employment practice' by Title VII or (2) made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII." Fantini v. Salem State Coll., 557 F.3d 22, 32 (1st Cir. 2009) (quoting Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir.1996)) (internal quotations omitted). "[I]n determining whether conduct is protected opposition-the first step, a court must balance the setting in which the activity arises and the interests and motivations of both employer and employee." Hochstadt v. Worcester Found. for Experimental Biology, 545 F.2d 222, 232 (1st Cir. 1976); cf. Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 175 (1st Cir. 2003) ("[T]he employment activity or practice that [plaintiff] opposed need not be a Title VII violation so long as [plaintiff] had a reasonable belief that it was, and [s]he communicated that belief to [her] employer in good faith"). "Protected conduct includes not only the filing of administrative complaints, but also complaining to one's supervisors." Valentin-Almeyda, 447 F.3d at 94 (internal citation omitted) (citing Benoit, 331 F.3d at 175).
Ms. Ferrante filed her charge on July 26, 2011, and MAS received notice of that charge on August 8, 2011. MAS argues only that the complaint was not "protected activity" because Ms. Ferrante "at no time... mention[ed] any facts that could reasonably lead Ms. Joy or anyone else at MAS to believe that [Ms. Ferrante] was complaining about a sexually' hostile work environment. Def.'s Mot. at 15. MAS asserts that it had no notice of potentially unlawful sexual conduct, and argues that the July 26 complaint is therefore not protected activity. Id. at 15.
The parties do not dispute that Ms. Ferrante met with Ms. Joy on June 28 or 29 to discuss concerns she had about Ms. Wing and that she filed a charge on July 26. Although the Court concludes that Ms. Ferrante's sex discrimination charge does not survive summary judgment, it nevertheless determines that Ms. Ferrante had at least a reasonable belief that she was subjected to unlawful sex-based discrimination and retaliation. Ms. Ferrante has offered evidence that Ms. Wing made embarrassing sexual remarks to or in front of Ms. Ferrante on a daily basis for approximately two months, and sometimes in the presence of Ms. Ferrante's coworkers. Ms. Wing continued the comments after Ms. Ferrante asked her to stop. Ms. Ferrante's deposition testimony and memoranda, along with other record evidence, reveal that Ms. Wing's harassment caused Ms. Ferrante to suffer psychologically and emotionally. She requested leave to go home early on December 2, 2011, citing "workplace harassment." Additionally, her resignation letter on December 5, 2011 cited harassment and retaliation as causes for leaving her job. See Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 48 (1st Cir. 2010) ("This is not a case in which the challenged conduct amounted to a single, mild incident or offhand comment, such that no reasonable person could have believed that this conduct violated Title VII.").
Finally, even though MAS properly cites Medina-Rivera v. MVM, Inc., 713 F.3d 132, 138 (1st Cir. 2013), for the proposition that the First Circuit has required an employee to put the employer on notice of the sexual nature of the harassment, Def.'s Mot. at 14, there is a genuine dispute between the parties regarding whether Ms. Ferrante told Ms. Joy about the sexual nature of Ms. Wing's conduct in their meeting. Accordingly, the Court may not conclude as a matter of law that MAS had no notice of the sexual harassment. Regardless, Ms. Ferrante checked the "Retaliation" box in her charge and had a good faith, reasonable belief that the actions of her employer violated the law. A jury could find that it was not unreasonable to believe that Ms. Wing's conduct amounted to sexual harassment. Therefore, the Court finds that Ms. Ferrante met her burden of demonstrating that she engaged in protected activity.
ii. Whether Ms. Ferrante Suffered an Adverse Employment Action
To satisfy the second element of a prima facie MHRA retaliation claim, the employment action taken must be "materially adverse" such that it would have "dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). In Maine, constructive discharge can satisfy this element, as it can in MHRA discrimination claims ( see Levesque, 2012 ME 114, ¶ 8, 56 A. 3d 1227 ("In Maine, a plaintiff may use the doctrine of constructive discharge to satisfy the elements of "discharge" or "adverse employment action" in an otherwise actionable claim pursuant to section 4572 of the Maine Human Rights Act.")). First Circuit case law also provides that although a typical adverse employment action "involves a discrete change in the terms and conditions of employment (say, a discharge, demotion, or reduction in pay)", "workplace harassment, if sufficiently severe or pervasive, may in and of itself constitute an adverse employment action sufficient to satisfy the second prong of the prima facie case for Title VII retaliation cases." Noviello v. City of Boston, 398 F.3d 76, 88, 89 (1st Cir. 2005). Although the Law Court has not specifically addressed whether a retaliatory hostile work environment can serve as an adverse employment action where the plaintiff was constructively discharged, a recent decision in this District suggests that the theory is viable. See Ramsdell v. Huhtamaki, 992 F.Supp.2d 1, 18 (D. Me. Jan. 15, 2014) (applying retaliatory hostile work environment analysis in context of constructive discharge claim).
MAS argues that its managers' and employees' conduct fails to qualify as an adverse employment action as a matter of law. MAS contends that "attempting to discuss [Ms. Ferrante's] EEOC charge with her" is not retaliatory, and that Ms. Ferrante "only imagined" that MAS representatives pressured her to withdraw her charge. Def.'s Mot. at 16. Next, MAS argues that "shunning, ostracism or unpleasant treatment by coworkers in and of itself is not an adverse action." Id. at 17. Further, MAS argues that the "evolution" of Ms. Ferrante's job responsibilities was likewise not retaliatory. Id. MAS maintains that her position was "brand-new in a company that was quickly growing" and that changes to Ms. Ferrante's job duties were the "product of an evolving business." Id. at 17-18. Moreover, MAS asserts, Ms. Ferrante alleges that job responsibilities were taken from her, but has presented "no evidence that she previously performed any of the job duties at issue...." Id. at 18. MAS acknowledges that Ms. Ferrante can show that the Fall 2011 audit was reassigned, but maintains that task "cannot in and of itself serve as a form of adverse action as it did not change any of the conditions of her employment, result in a pay decrease, demotion, or any other action." Id. Finally, MAS asserts that Ms. Ferrante's allegations in sum do not rise to the level of a hostile work environment culminating in constructive discharge. Id.
Ms. Ferrante remains steadfast in her conviction that MAS retaliated against her. She states that reassignment of duties in and of itself can be considered a materially adverse employment action. Pl.'s Opp'n at 15. With respect to her former coworkers' and supervisors' conduct, she states that rudeness and ostracism, when considered collectively with other retaliatory actions, can rise to the level of an adverse employment action. Id. The totality of the adverse actions taken against her, she maintains, amount to "overwhelming evidence" of adverse actions. Id.
Ms. Ferrante has offered evidence of the following alleged retaliatory acts:
(1) On June 29, either the same day or the day after Ms. Ferrante first complained to human resources, her supervisor told her she was doing her job incorrectly.
(2) On August 17 and 18 of 2011, Ms. Ferrante's supervisor and a human resources representative met with her to discuss her charge, and Ms. Ferrante felt in both meetings that they were pressuring her to withdraw her charge.
(3) On August 17, MAS began to reduce Ms. Ferrante's responsibilities.
(4) After August 17, Ms. Ferrante believes she did not get adequate training on six tasks in her job description.
(5) On August 19, Mr. Johnson sent an email to human resources and copied Ms. Ferrante, documenting his investigative findings and saying that the charge was "completely baseless and reckless" and he felt Ms. Ferrante should "withdraw the charge immediately."
(6) On August 22, a coworker who overheard Ms. Ferrante's supervisor and a human resources representative "make a vigorous attempt" to compel Ms. Ferrante to withdraw her charge was laid off.
(7) On September 1, MAS posted a help wanted ad for an administrative assistant who would report to Ms. Ferrante's supervisor.
(8) Ms. Ferrante felt that Ms. McLain, who was hired as the administrative assistant, had overlapping responsibilities.
(9) Starting in mid-August, some of Ms. Ferrante's responsibilities were taken away and given to other employees, and Ms. Ferrante's job responsibilities changed significantly after Ms. McLain was hired in September, despite the fact that she did not receive a memo regarding a change in her job description.
(10) In October, Ms. Ferrante's supervisor asked Ms. McLain and another MAS employee to perform a quarterly audit, which Ms. Ferrante had done in the past.
(11) On October 26, Ms. Ferrante submitted a leave request to her supervisor, and on October 31, her supervisor sent an email to MAS staff listing employees with approved leave; Ms. Ferrante's name was not on the list.
(12) On November 2, Ms. Ferrante's supervisor gave Ms. McLain a list of tasks to complete while she was on vacation, tasks which had previously been Ms. Ferrante's responsibility.
(13) Ms. Ferrante's supervisor warned at least one of Ms. Ferrante's coworkers that she was not allowed to talk to Ms. Ferrante. That coworker faced opposition from management after she continued to have contact with Ms. Ferrante.
(14) On November 8, Ms. Ferrante entered her supervisor's office, where her supervisor and coworker were seated; neither acknowledged her presence.
(15) On November 14, Ms. Ferrante's supervisor asked her to bring in her keys so that Ms. McLain could also use them.
(16) On November 16, Ms. Ferrante's supervisor blamed Ms. Ferrante for misfiling charts.
(17) On November 28, everyone in the office ate together but did not invite Ms. Ferrante.
(18) Ms. Ferrante was not involved in planning a holiday party for the office, which she believed was one of her responsibilities.
(19) On November 29, Ms. Ferrante's name was omitted from the staff roster.
(20) On November 30, Ms. Ferrante was not included in a Section 28 supervisor's meeting that she believed she was supposed to attend.
(21) On December 1, Ms. Ferrante's supervisor circulated a staff roster, and Ms. Ferrante's name was omitted. She circulated an updated roster shortly thereafter and Ms. Ferrante's name was omitted from that one as well.
Viewed in the light most favorable to Ms. Ferrante, the sum of these actions is sufficient to deny MAS summary judgment on the issue of adverse employment action. Ms. Ferrante has presented evidence that after MAS received notice of her charge alleging sex discrimination and retaliation, MAS management told her coworkers not to talk to her, that she was subject to unwarranted reprimands, was pressured by management to withdraw her charge, had many of her job responsibilities taken away, was left off of staff rosters, which could be an implication or threat of being terminated, and made a request for leave that was ignored. This is sufficient to deter a reasonable worker from supporting a charge of discrimination.
MAS hangs its hat on the fact that it transferred Ms. Ferrante into a new role with a new supervisor and a higher pay rate. However, for purposes of MAS's motion for summary judgment, this is insufficient to counterbalance the numerous other actions MAS management took against Ms. Ferrante within two weeks of discovering that she had filed an EEOC charge and that she was not planning to withdraw it. The Court concludes that the evidence in this case, viewed in the light most favorable to Ms. Ferrante, would allow, but not compel a reasonable jury to find that Ms. Ferrante was subjected to a retaliatory hostile work environment.
iii. Whether the Adverse Employment Action Happened in Close Proximity to the Protected Conduct
To establish the third element of her prima facie case of retaliation under the MHRA, Ms. Ferrante must demonstrate a causal link existed between her protected activity and the adverse employment action. See Bowen, 606 A.2d 1051, 1054 (Me. 1992). The Supreme Court has held that "[t]he text, structure, and history of Title VII demonstrate that a plaintiff making a retaliation claim under [42 U.S.C.] § 2000e-3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer." Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2534 (2013). Regarding that causal link, the Supreme Court has stated that "[t]he cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close.'" Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (citation omitted). "Three and four month periods have been held insufficient to establish a causal connection based on temporal proximity." Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 25 (1st Cir. 2004) (citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir.1997); Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th Cir.1992). However, the Maine Law Court determined that less than two months is sufficient proximity to satisfy the causal link for the purposes of a prima facie retaliation claim. Fuhrmann v. Staples Office Superstore East, Inc., 2012 ME 135, ¶16, 58 A.3d 1083.
MAS argues that Ms. Ferrante cannot prove temporal proximity between her protected activity and the adverse employment action because her EEOC charge and subsequent resignation occurred approximately four months apart. Def.'s Mot. at 20. Ms. Ferrante argues that she has set forth sufficient evidence that show that she suffered adverse employment action within thirty days of MAS receiving notice of Ms. Ferrante's EEOC charge. Pl.'s Opp'n at 19.
The undisputed facts establish that Ms. Ferrante filed her charge on July 26, 2011, and MAS received it by August 9, 2011. There was a steady stream of action taken against Ms. Ferrante starting within two weeks of MAS receiving notice of her charge, which rose to the level of adverse employment action within two months. The Court concludes that Ms. Ferrante suffered adverse employment action in close proximity to her protected conduct.
3. The Existence of a Legitimate, Nondiscriminatory Reason for MAS's Conduct
MAS offers only two nondiscriminatory reasons for instances of conduct Ms. Ferrante argues are retaliatory. Specifically, MAS asserts that 1) Ms. Ferrante was not invited to the Section 28 meeting because she was not a Section 28 supervisor, DRPSAMF ¶¶ 75, 88; and 2) Ms. Ferrante was not invited to a MAS Christmas party because the invitation was for "clients and BHP/BHP-RC's so no invitation would go to Ms. Ferrante". DRPSAMF ¶ 81. Regarding the Section 28 meeting, the Court addressed that issue in footnote 68 above and concluded that it is a reasonable inference that Ms. Ferrante thought she should have been included in the meeting and was not invited due to an ongoing pattern of harassment. The same is true of the invitation to the Christmas party.
MAS also explains that the changes to Ms. Ferrante's job duties and responsibilities were the product of a growing business. Def.'s Mot. at 15 (citing DSMF ¶ 53). This assertion, however, is not supported by the record. The evidence in the record supports only the fact that Ms. Proulx was authorized to hire Ms. Ferrante because the business was growing and she needed additional support. It does not provide a legitimate explanation for the reason Ms. Ferrante's job duties changed.
The Court concludes that MAS has not satisfied its burden of presenting evidence of a legitimate, nonretaliatory reason for its conduct. Even if the Court considers MAS's explanations regarding the Section 28 meeting and the Christmas party to be legitimate, nondiscriminatory reasons for its conduct, Ms. Ferrante still has other evidence of retaliatory conduct sufficient to overcome those explanations.
4. Whether a Causal Connection Exists Between the Protected Activity and the Adverse Employment Action
Because MAS was unable to establish a legitimate, nonretaliatory reason for its conduct following its discovery of Ms. Ferrante's charge and subsequent indication that she was not going to withdraw her charge, the Court concludes that a causal connection exists between Ms. Ferrante's protected activity and the adverse employment action for purposes of the motion for summary judgment.
Accordingly, the Court denies MAS's motion with respect to Ms. Ferrante's retaliation claim.
E. Count III: Constructive Discharge Claim
Under Maine law, "discharge" includes a situation in which "the employee has no reasonable alternative to resignation because of intolerable working conditions." King v. Bangor Fed. Credit Union, 611 A.2d 80, 82 (Me. 1992). "Constructive discharge" is a theory of relief that enhances the damages a plaintiff may recover when the plaintiff has chosen to resign without actually being terminated by the employer. See Levesque, 2012 ME 114, ¶ 8, 56 A.3d 1227. Constructive discharge can satisfy the element of "discharge" or "adverse employment action" in an otherwise actionable claim pursuant to section 4572 of the MHRA. See 5 M.R.S. § 4572; Levesque, 2012 ME 114, ¶ 8, 56 A.3d 1227. However, the Maine Law Court has held that "constructive discharge does not exist as an independent cause of action under Maine statutory or common law." Levesque, 2012 ME 114, ¶ 8, 56 A.3d 1227. MAS is entitled to summary judgment on Count III.
The Court has concluded that Ms. Ferrante failed to prove her hostile work environment claim; because a constructive discharge is tantamount to an additional element of her prima facie case, Ms. Ferrante cannot establish constructive discharge without first showing that her work environment was hostile. Furthermore, Ms. Ferrante's constructive discharge evidence is insufficient to overcome the summary judgment hurdle. MAS is entitled to summary judgment on Count III but the theory survives in Counts I and II.
The Court GRANTS in part and DENIES in part MAS Medical Staffing's Motion for Summary Judgment (ECF No. 38). The Court GRANTS MAS Medical Staffing's Motion for Summary Judgment as to Counts I and III, but DENIES its Motion for Summary Judgment as to Count II.