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Ferrante v. Mas Medical Staffing

United States District Court, D. Maine

March 26, 2015

STEPHANIE M. FERRANTE, Plaintiff,
v.
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]

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.[2] 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.[3] 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.[4] 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.[5] 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.[6] 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."[7] 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?"[8] 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.[9] 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.[10] PSAMF ¶17; DRPSAMF ¶ 17.[11]

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.'"[12] 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.[13] 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.[14] 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."[15] 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."[16] 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.[17] 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.[18] 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.[19]

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.[20] 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.[21] 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.[22] 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."[23] 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."[24] 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.[25] 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.[26]

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.[27] 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".[28] PSAMF ¶ 24; DRPSAMF ¶ 24. Ms. Ferrante's EEOC submission did not make specific reference to the sexual nature of Ms. Wing's comments.[29] 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.[30] 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".[31] DSMF ¶ 65. Ms. Ferrante responded that the consultant said she needed to mark something so they picked the sex box.[32] 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.[33] 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.[34] 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.[35] 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.[36] 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.[37] 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.[38] 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.[39] 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.[40] 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".[41] PSAMF ¶ 48; DRPSAMF ¶ 48. Ms. Joy terminated Mr. Manning's employment that day.[42] 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.[43] 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."[44] 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.[45] PSAMF ¶ 55; DRPSAMF ¶ 55. That same month, Ms. Proulx hired Courtney McLain as her administrative assistant.[46] 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.[47] 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.[48] 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, [49] Ms. McLain began to take over some of her administrative duties, and began to take over her day to day responsibilities.[50] 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.[51] 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.[52] 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.[53] 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.[54] PSAMF ¶ 75; DRPSAMF ¶ 75. On or around December 2, 2011, Ms. Ferrante wrote that, "[m]y job is being reduced to nothing."[55] 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.[56] PSAMF ¶ 92; DRPSAMF ¶ 92. Ms. Ferrante feared that her job performance was being scrutinized and singled out.[57] 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.[58] PSAMF ¶ 62; DRPSAMF ¶ 62. Ms. Proulx then warned Ms. Blanc that she was "not allowed to talk to Stephanie".[59] 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.[60] 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.[61] 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.[62] 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.[63] 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.[64] 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.[65] PSAMF ¶ 27; DRPSAMF ¶ 27.[66] 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 ...


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