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Judith Netherland v. WESCO Distribution, Inc.

Superior Court of Maine, Cumberland

June 5, 2015



Nancy Mills, Justice, Superior Court.

Before the court is defendant's motion for summary judgment. In her complaint, plaintiff alleges one count of sexual harassment based on a hostile work environment and one count of retaliation. For the following reasons, the motion is granted in part and denied in part.


The following facts are supported by the summary judgment record and presented in a light most favorable to plaintiff as the non-moving party.[1] Plaintiff began working for defendant WESCO Distribution, Inc. (WESCO) in 2007 as a temporary administrative employee. (Def.'s Supp. S.M.F. ¶ 2.) In June 2008, defendant hired plaintiff directly as an office associate. (Def.'s Supp. S.M.F. ¶ 3.) Plaintiff initially worked as an administrative assistant to Susan Landon, the administrative lead. (Def.'s Supp. S.M.F. ¶ 4.)

WESCO's disciplinary policy includes both a Performance Improvement Plan (PIP) and a Corrective Improvement Plan (CIP). (Def.'s Supp. S.M.F. ¶ 9.) A PIP is related to an employee's objectives, goals, and work performance and is issued to improve performance. (Def.'s Supp. S.M.F. ¶ 9.) A CIP is for conduct that cannot be repeated. (Def.'s Supp. S.M.F. ¶ 9.)

In May 2010, plaintiff complained to a WESCO Vice President that a vendor was acting "creepy." (Def.'s Supp. S.M.F. 12.) In response, Ms. Landon made physical changes to plaintiffs workspace and communicated with the vendor. (Def.'s Supp. S.M.F. ¶ 13.) The conduct never happened again. (Def.'s Supp. S.M.F. ¶ 14.)

Plaintiff and her co-worker John McAlevey did not get along. Plaintiff testified that Mr. McAlevey claimed he did not like her because she had told Ms. Landon that Mr. McAlevey was smoking at work. (Def.'s Supp. S.M.F. ¶ 18; Pl.'s Opp. S.M.F. ¶ 18.) In 2011, plaintiff complained to Ms. Landon multiple times about Mr. McAlevey's behavior. (Pl.'s Add. S.M.F. ¶¶ 17, 19-20.) Plaintiff complained that Mr. McAlevey was loud and in her face, ignored her when she asked a question, yelled at her, threatened her, and stood uncomfortably close to her. (Pl.'s Add. S.M.F. ¶¶ 3-6, 9, 24; Pl.'s Opp. S.M.F. ¶ 23.) Plaintiff also testified that Mr. McAlevey called her a bitch on multiple occasions and that she complained about it to her supervisors. (Pl.'s Opp. S.M.F. ¶ 26.) Ms. Landon admitted that plaintiff complained multiple times about Mr. McAlevey's behavior. (Def.'s Supp. S.M.F. ¶ 27; Pl.'s Opp. S.M.F. ¶ 27.)

In early February 2012, a meeting was held to discuss plaintiff's concerns with Mr. McAlevey. (Def.'s Supp. S.M.F. ¶ 19; Pl.'s Opp. S.M.F. ¶ 19.) Plaintiff, Mr. McAlevey, Ms. Landon, and Paul Perry, another supervisor, [2] were present at the meeting. (Def.'s Supp. S.M.F. ¶ 19.) During the meeting, Mr. McAlevey acted unprofessionally and inappropriately. (Def.'s Supp. S.M.F. ¶ 20; Pl.'s Opp. S.M.F. ¶ 20.) Mr. McAlevey yelled at plaintiff, called her a bitch, made her cry, and then made fun of her for crying. (Def.'s Supp. S.M.F. ¶ 21; Pl.'s Add. S.M.F. ¶¶ 7-8.) Mr. McAlevey told plaintiff that he is an angry person and that she would just have to live with it. (Pl.'s Add. S.M.F. ¶ 12.) He also referred to plaintiff as someone who thinks her "shit doesn't stink." (Pl.'s Add. S.M.F. ¶ 12; Def.'s Reply S.M.F. ¶ 12.) Plaintiff told Mr. McAlevey that she was afraid of him and that he was unprofessional. (Pl.'s Add. S.M.F. ¶ 13.) Plaintiff eventually left the meeting while Ms. Landon, Mr. Perry, and Mr. McAlevey remained. (Pl.'s Add. S.M.F. ¶ 14.)

At the meeting, Mr. Perry reprimanded Mr. McAlevey for making fun of plaintiff. (Def.'s Supp. S.M.F. ¶ 28; Pl.'s Opp. S.M.F. ¶ 28.) After the meeting, Mr. McAlevey was issued a CIP on February 17, 2012, but that CIP did not refer to any misconduct towards plaintiff. (Pl.'s Add. S.M.F. ¶ 32; Def.'s Supp. S.M.F. ¶ 34; Pl.'s Opp. S.M.F. ¶ 34.) In early February 2012, after the meeting, plaintiff called John Oliverio, HR Director for WESCO, about Mr. McAlevey's behavior at the meeting. (Pl.'s Add. S.M.F. ¶ 28; Def.'s Reply S.M.F. ¶ 28; Def.'s Supp. S.M.F. ¶ 30.) According to Mr. Oliverio, he decided not to connect Mr. McAlevey's discipline to plaintiff's complaints because it would only foster his resentment for plaintiff. (Def.'s Supp. S.M.F. ¶¶ 33-34.) Mr. Oliverio told plaintiff to continue to come forward if she had any future concerns about Mr. McAlevey. (Def.'s Supp. S.M.F. ¶ 35.)

Plaintiff testified that her supervisors failed to correct Mr. McAlevey's behavior and that it became worse after the February meeting. (Pl.'s Opp. S.M.F. ¶ 24; Pl.'s Add. S.M.F. ¶ 16.) For example, Mr. McAlevey ignored plaintiff when she asked him a question about a customer. (Pl.'s Add. S.M.F. ¶ 3.) Plaintiff continued to complain about Mr. McAlevey until he left WESCO. (Pl.'s Add. S.M.F. ¶ 23.) Mr. McAlevey eventually resigned from WESCO in August 2012. (Def.'s Supp. S.M.F. ¶ 37.)

Plaintiff testified that she noticed a change in Ms. Landon's attitude after the meeting. (Def.'s Supp. S.M.F. ¶¶ 39-41, 43-45; Pl.'s Opp. S.M.F. ¶¶ 39-41, 43-45.) Plaintiff was upset that Ms. Landon assigned her menial tasks to perform. (Def.'s Supp. S.M.F. ¶¶ 46-47; Pl.'s Opp. S.M.F. ¶¶ 46-47.) Plaintiff felt that Ms. Landon made personal attacks by giving her lower grades on work evaluations. (Def.'s Supp. S.M.F. ¶ 53.) After Mr. McAlevey resigned, Mr. Perry held weekly meetings to try to improve plaintiffs relationship with Ms. Landon. (Def.'s Supp. S.M.F. ¶ 58.)

Plaintiff testified that before 2012 she received only positive performance reviews. (Pl.'s Opp. S.M.F. ¶ 10.) Ms. Landon testified that she talked with plaintiff about performance issues from the time she started working. (Def.'s Supp. S.M.F. ¶10.)

In June 2012, a new position was created for plaintiff, which included a greater marketing role.[3] (Def.'s Supp. S.M.F. ¶¶ 60, 62.) Eventually, plaintiff spoke with Ms. Landon about feeling overwhelmed by her marketing duties. (Def.'s Supp. S.M.F. ¶ 64.) In October 2012, Ms. Landon sent plaintiff an email outlining a plan for improvement for plaintiff. (Def.'s Supp. S.M.F. ¶ 67.)

In November 2012, plaintiff complained about a temporary employee at WESCO because he referred to an inappropriate song title in her presence and it made her feel uncomfortable. (Def.'s Supp. S.M.F. ¶ 68.) She also complained that the employee came to her desk and made her feel uncomfortable. (Pl.'s Opp. S.M.F. ¶¶ 68-70.) After her complaint, the employee did not bother her again.[4] (Def.'s Supp. S.M.F. ¶¶ 69-70.)

In late 2012, Ms. Landon informed Mr. Oliverio that she had some concerns with plaintiff's performance. (Def.'s Supp. S.M.F. ¶ 72.) In January 2013, plaintiff was assigned more of an administrative role at WESCO. (Def.'s Supp. S.M.F. ¶ 73.) Plaintiff was upset that she was being reassigned and felt that she should be a project manager. (Def.'s Supp. S.M.F. ¶¶ 74-75; Pl.'s Opp. S.M.F. ¶ 75.) On January 26, 2013, plaintiff received a CIP that noted plaintiff's "inappropriate and unprofessional emails, " "does not listen to supervisor feedback, " "oversteps her authority, " and "tries to rally others to her position." (Def.'s Supp. S.M.F. ¶ 76; Pl.'s Opp. S.M.F. ¶ 76.) Plaintiff disagreed with the allegations in the CIP. (Pl.'s Opp. S.M.F. ¶ 76.)

From January to March 2013, plaintiff transitioned out of project management work. (Def.'s Supp. S.M.F. ¶ 77.) Plaintiff continued to receive the same hours, pay, and other benefits after the change in her duties. (Def.'s Supp. S.M.F. ¶ 78.) Plaintiff testified that she understood WESCO's marketing needs were minimal by March 2013. (Def.'s Supp. S.M.F. ¶ 79.) Nevertheless, plaintiff did not like the ...

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