United States District Court, D. Maine
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
JOHN A. WOODCOCK, Jr., District Judge.
Brenda Pippin and Grace Parker brought separate lawsuits under the Maine Human Rights Act (MHRA) and Maine Whistleblower Protection Act (MWPA), alleging that Boulevard Motel Corp. (Boulevard Motel), their former employer, wrongfully retaliated against them. Boulevard Motel has moved for summary judgment on the ground that each former employee's claim falls under the "job duties" exception to these Acts. Despite reservations about the scope of and policy behind the "job duties" exception, the Court has applied the latest teaching from the First Circuit Court of Appeals, and having resolved issues regarding the disputed record, the Court concludes that there are no genuine disputes of material fact that require jury resolution on either claim and that Boulevard Motel is entitled to summary judgment on each.
I. STATEMENT OF FACTS
A. Procedural History
On March 21, 2014, Brenda Pippin and Grace Parker, former employees of Boulevard Motel, filed separate, simultaneous complaints in Cumberland County Superior Court for the state of Maine against Boulevard Motel. Decl. of Michelle Y. Bush Attach. 2 Compl. (ECF No. 3). They alleged that Boulevard Motel committed various violations of state and federal law by terminating them. Id. Specifically, Ms. Pippin alleged (1) two counts of unlawful retaliation under the MHRA; (2) one count of adverse employment action for activity protected by the MWPA; and (3) gender discrimination in violation of the MHRA. Id. ¶¶ 17-34 ( Pippin, 2:14-cv-00167-JAW) ( Pippin ). Likewise, Ms. Parker alleged the same three violations of law as Ms. Pippin, and also alleged (1) age discrimination in violation of the MHRA, and (2) age discrimination in violation of the Age Discrimination in Employment Act (ADEA). Id. ¶¶ 17-48 ( Parker, 2:14-cv-00169-JAW) ( Parker ). Boulevard Motel removed both cases to this Court on April 22, 2014. Notice of Removal (ECF No. 1). On May 2, 2014, Boulevard Motel filed its Answer to each Complaint. Answer to Compl. (ECF No. 5).
On January 13, 2015, the Plaintiffs moved to dismiss certain counts in each Complaint without prejudice. Am. Notice of Voluntary Dismissal of Count III, or in the Alt., Mot. to Dismiss Count III (ECF No. 23) ( Pippin ); Am. Notice of Voluntary Dismissal of Counts III-V, or in the Alt., Mot. to Dismiss Counts III-V (ECF No. 23) ( Parker ). The Court granted their motions on February 20, 2015. Order on Mots. to Dismiss (ECF No. 31). Each Plaintiff now brings one count of whistleblower retaliation under the MWPA and one count of retaliation under the MHRA.
On February 27, 2015, Boulevard Motel filed a motion for summary judgment as to both Ms. Pippin and Ms. Parker with a supporting statement of material facts. Def.'s Mot. for Summ. J. (ECF No. 32) ( Def.'s Mot. ); Def.'s Statement of Material Facts (ECF No. 33) (DSMF). Ms. Pippin and Ms. Parker responded to Boulevard Motel's motion and its statement of material facts, and filed a statement of additional material facts on March 16, 2015. Pls.' Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. (ECF No. 39) ( Pls.' Opp'n ); Pls.' Opposing Statement of Material Facts (ECF No. 40) (PRDSMF); Pls.' Statement of Additional Material Facts (ECF No. 40) (PSAMF). On March 26, 2015, Boulevard Motel filed a reply to Ms. Pippin and Ms. Parker's response and to their statement of additional material facts. Def.'s Reply in Support of Summ. J. (ECF No. 42) ( Def.'s Reply ); Def.'s Reply to Pls.' Statement of Additional Material Facts (ECF No. 43) (DRPSAMF). Finally, on June 4, 2015, the Court heard oral argument. Minute Entry (ECF No. 45).
B. Factual Background
1. The Parties and the Plaintiffs' Job Responsibilities
Boulevard Motel Corp. was the owner and operator of the Comfort Inn Hotel in South Portland, Maine ("Comfort Inn") in 2010 and 2011. DSMF ¶ 1; PRDSMF ¶ 1.
Plaintiff Brenda Pippin was employed by Boulevard Motel as the Executive Housekeeper at the Comfort Inn. DSMF ¶ 2; PRDSMF ¶ 2. Ms. Pippin worked at the Comfort Inn for over twenty-four years, though Boulevard Motel did not own or operate the Comfort Inn during that whole time period. PSAMF ¶ 1; DRPSAMF ¶ 1. She worked initially as a housekeeper for two years, then in laundry for approximately three years, and then became Executive Housekeeper. Id.  As Executive Housekeeper, Ms. Pippin was in charge of the housekeeping department and had responsibilities relating to hiring, firing, supervising and disciplining housekeeping employees. DSMF ¶ 3; PRDSMF ¶ 3. Ms. Pippin supervised Grace Parker and housekeeper Abinair Martin, among others. DSMF ¶ 12; PRDSMF ¶ 12.
Plaintiff Grace Parker was employed by Boulevard Motel as the Assistant Executive Housekeeper at the Comfort Inn. DSMF ¶ 4; PRDSMF ¶ 4. Ms. Parker worked for the Comfort Inn for eleven years (starting in 2000), beginning first as a housekeeper and laundry aide before becoming Assistant Executive Housekeeper several years later. PSAMF ¶ 2; DRPSAMF ¶ 2. As Assistant Executive Housekeeper, Ms. Parker had supervisory duties and was responsible for performing Ms. Pippin's responsibilities when Ms. Pippin was not at work, including overseeing daily tasks of the housekeeping staff, except Ms. Parker was unable to hire, fire, or discipline housekeeping employees. DSMF ¶ 5; PRDSMF ¶ 5; PSAMF ¶ 3; DRPSAMF ¶ 3. Ms. Parker supervised Abinair Martin when Ms. Pippin was not at work, but Ms. Parker did not have the authority to fire or discipline Ms. Martin. DSMF ¶ 13; PRDSMF ¶ 13.
2. Sexual Harassment Policy and Training
Ms. Pippin and Ms. Parker each received annual training entitled, "Preventing Sexual Harassment Supervisor Version." DSMF ¶ 6; PRDSMF ¶ 6. That annual training instructed supervisors such as Ms. Parker and Ms. Pippin to immediately report employee complaints of sexual harassment according to the reporting structure outlined in company policy. DSMF ¶ 7; PRDSMF ¶ 7. Boulevard Motel's sexual harassment policy contained in its employee handbook required that "any supervisor who sees or hears about conduct that may constitute harassment under this policy must immediately contact the Property Manager or Sunburst Hospitality's Corporate Human Resources Department." DSMF ¶ 8; PRDSMF ¶ 8.
Ms. Pippin and Ms. Parker each received copies of the employee handbook. DSMF ¶ 9; PRDSMF ¶ 9. Boulevard Motel's policy entitled, "Supervisor's Role During Sexual Harassment Investigation Procedures, " required Ms. Parker and Ms. Pippin to report to human resources any employee complaints about alleged harassment. DSMF ¶ 10; PRDSMF ¶ 10. Ms. Pippin and Ms. Parker each received a copy of the policy entitled, "Supervisor's Role During Sexual Harassment Investigation Procedures." DSMF ¶ 11; PRDSMF ¶ 11.
Boulevard Motel's sexual harassment policy instructed that employees with complaints of harassment could bring them to their supervisor, the hotel manager, or human resources. DSMF ¶ 36; PRDSMF ¶ 36.
3. April 21, 2010: The Alleged Sexual Harassment Incident Witnessed by Grace Parker
On or about April 21, 2010, Ms. Parker witnessed an incident between Ms. Martin and a maintenance employee, Randy Crabtree. DSMF ¶ 14; PRDSMF ¶ 14. On that day, Ms. Parker was supervisor of the housekeeping department, including Ms. Martin, because Ms. Pippin was not at work. DSMF ¶ 15; PRDSMF ¶ 15. Ms. Parker was in the break room when she overheard Mr. Crabtree call Ms. Martin "nipples." DSMF ¶ 16; PRDSMF ¶ 16.
Ms. Parker then went outside with Ms. Martin and asked her if Mr. Crabtree had said what she thought she heard; Ms. Martin answered that he had. DSMF ¶ 17; PRDSMF ¶ 17. Ms. Martin then told Ms. Parker that Mr. Crabtree had also stated that he heard that Brazilian women have big nipples and asked Ms. Martin, who is Brazilian, to lift her shirt and show him her nipples so he could suck them. DSMF ¶ 18; PRDSMF ¶ 18. Ms. Parker told Ms. Martin that she needed to document everything and that they should go to Beth Landergren, Hotel General Manager. DSMF ¶ 19; PRDSMF ¶ 19. Ms. Martin responded that she wanted to wait for Ms. Pippin to return to work so they could go to Ms. Landergren together. DSMF ¶ 20; PRDSMF ¶ 20.
4. April 24, 2010: Brenda Pippin Returns to Work
On or about April 24, 2010, when Ms. Pippin returned to work, Ms. Parker told Ms. Pippin that Ms. Martin had something to tell her. DSMF ¶ 21; PRDSMF ¶ 21. Ms. Martin, Ms. Parker and Ms. Pippin were having a lunch break when Ms. Martin told Ms. Pippin about the incident with Mr. Crabtree. DSMF ¶ 22; PRDSMF ¶ 22. Ms. Pippin told Ms. Martin that they needed to go talk to Ms. Landergren. DSMF ¶ 23; PRDSMF ¶ 23.
5. April 27, 2010: Brenda Pippin, Grace Parker, and Abinair Martin Speak with Beth Landergren; Ms. Landergren and Ms. Martin Report the Allegations to the Human Resources Department
On or about April 27, 2010, Ms. Pippin, Ms. Parker, and Ms. Martin went to talk to Ms. Landergren. DSMF ¶ 24; PRDSMF ¶ 24. Ms. Pippin told Ms. Landergren that Ms. Martin had an incident with Mr. Crabtree that she needed to tell to Ms. Landergren. DSMF ¶ 25; PRDSMF ¶ 25. Ms. Martin then proceeded to describe to Ms. Landergren the incident with Mr. Crabtree that had occurred on or about April 21, 2010. DSMF ¶ 26; PRDSMF ¶ 26.
Ms. Landergren said she "would believe" Ms. Martin's allegations if they had been directed toward another employee, Michael Cox, but not Mr. Crabtree, and she initially tried to dissuade Ms. Martin from pressing the matter by claiming Mr. Crabtree "doesn't fit the profile" and commented "are you sure he wasn't joking because he jokes around with everybody, " but Ms. Landergren then informed Ignacio Mello, Boulevard Motel's Human Resources Manager, about Ms. Martin's allegations. DSMF ¶ 27; PRDSMF ¶ 27; PSAMF ¶ 7; DRPSAMF ¶ 7.
In her initial April 27, 2010 statement, Ms. Landergren reported that Ms. Martin's "husband told her that she has to report and have something done about it. Her husband feels it is disrespectful and makes her feel badly about her body." PSAMF ¶ 8; DRPSAMF ¶ 8. That same day, Ms. Landergren revised her initial statement in which she recounted her meeting with Ms. Martin, Ms. Pippin and Ms. Parker. PSAMF ¶ 9; DRPSAMF ¶ 9. She stated that Ms. Martin told her what Mr. Crabtree had done to her, and that she (Ms. Landergren) said Mr. Crabtree "joked around with everyone." Id. According to Ms. Landergren, Ms. Martin "immediately burst out crying" and asked why Ms. Landergren would allow this to go on so that she would have to be the one to get hurt and make a formal complaint? Id. Ms. Landergren stated that she then told Ms. Martin that Mr. Crabtree "jokes around" with everyone, and Ms. Martin was the only one who he offended. Id.
Also on April 27, 2010, Ms. Parker assisted Ms. Martin in writing a statement of events to submit to Mr. Mello; Ms. Parker wrote on Ms. Martin's statement "this is written by Grace Parker because Abinair Martin cannot spell and write English very well." PSAMF ¶ 10; DRPSAMF ¶ 10.
6. April 29 and 30, 2010: Beth Landergren Speaks with Randy Crabtree Regarding Abinair Martin's Allegations
On April 29, 2010, Ms. Landergren had a meeting with Mr. Crabtree in which she outlined the allegations against him and asked for his response. PSAMF ¶ 11; DRPSAMF ¶ 11. The following day, Ms. Landergren had another meeting with Mr. Crabtree to follow up on the previous day's meeting about the allegations of harassment. PSAMF ¶ 12; DRPSAMF ¶ 12.
7. Approximately Early May 2010: Ignacio Mello Investigates Abinair Martin's Allegations
Mr. Mello arrived at the Comfort Inn approximately one week later to further investigate Ms. Martin's allegations. DSMF ¶ 28; PRDSMF ¶ 28. While Mr. Mello was at the Comfort Inn, he interviewed witnesses and gathered statements, including meeting with Ms. Parker and Ms. Pippin. DSMF ¶ 29; PRDSMF ¶ 29. Ms. Parker told Mr. Mello what she had heard and that she had written a statement, which Boulevard Motel had requested. DSMF ¶ 30; PRDSMF ¶ 30. Ms. Pippin also provided written statements at Boulevard Motel's request. DSMF ¶ 31; PRDSMF ¶ 31. Ms. Pippin never witnessed any of the behavior described by Ms. Martin or any other sexually inappropriate behavior by Mr. Crabtree. DSMF ¶ 32; PRDSMF ¶ 32. Ms. Martin submitted a statement in Portuguese with a translation by her son. DSMF ¶ 33; PRDSMF ¶ 33.
Mr. Mello told Ms. Parker, Ms. Pippin, and Ms. Martin "not to talk about [the harassment] at all" or they "would get written up or terminated." PSAMF ¶ 14; DRPSAMF ¶ 14. Mr. Mello believed Ms. Martin should not have spoken to Ms. Landergren regarding the investigation after the initial report. PSAMF ¶ 15; DRPSAMF ¶ 15.
8. Beth Landergren is Removed from the Investigation Process
Ms. Landergren was told by Mr. Mello that she was not to be involved in the investigation after Ms. Martin reported to him that she felt Ms. Landergren "was biased in the investigation and was taking Randy's side." PSAMF ¶ 16; DRPSAMF ¶ 16.
9. Boulevard Motel's Investigative Findings and Subsequent Actions as a Result of Those Findings
Following the completion of the investigation, Boulevard Motel determined that Mr. Crabtree had engaged in inappropriate conduct, as did Ms. Landergren during the investigation of Mr. Crabtree's conduct, but nonetheless concluded that the incidents did not rise to the level of unlawful sexual harassment. DSMF ¶ 34; PRDSMF ¶ 34. In Mr. Mello's view, Boulevard Motel took prompt and remedial action in (1) responding to Ms. Martin's allegations, (2) investigating the allegations, and (3) issuing discipline to Mr. Crabtree, which included a finding that he "exercised poor judgement, engaged in unprofessional and inappropriate workplace behavior, blurred the line between supervisor and friend, and that [he] may have violated Sunburst's sexual harassment policy, " and he was provided a written warning requiring him to complete additional harassment training. DSMF ¶ 35; PRDSMF ¶ 35.
Despite Boulevard Motel's conclusion that Mr. Crabtree's conduct violated company policy but did not rise to the level of unlawful sexual harassment, Ms. Parker and Ms. Pippin believed Mr. Crabtree's behavior to be a violation of law and company policy, as well as a health and safety risk to Ms. Martin and other employees at Comfort Inn South Portland. PSAMF ¶ 21; DRPSAMF ¶ 21.
10. Brenda Pippin and Grace Parker's Understanding of Protocol and Procedure
Ms. Pippin believes that Ms. Martin should have brought her concerns about Mr. Crabtree to Ms. Pippin's attention because Ms. Pippin was her boss. DSMF ¶ 37; PRDSMF ¶ 37. Ms. Pippin also believes that Ms. Parker should have told Ms. Pippin about Ms. Martin's concerns because Ms. Pippin was Ms. Parker's boss. DSMF ¶ 38; PRDSMF ¶ 38. Ms. Pippin agrees that she should have brought Ms. Martin's report to Ms. Landergren's attention. DSMF ¶ 39; PRDSMF ¶ 39. Ms. Pippin agrees that the report about Mr. Crabtree's behavior was made on Ms. Martin's behalf and was Ms. Pippin's report to make. DSMF ¶ 40; PRDSMF ¶ 40. Ms. Parker understood that, acting with some supervisory authority in Ms. Pippin's absence, if an employee had a problem or needed to report something like sexual harassment he or she could and should report to her. DSMF ¶ 41; PRDSMF ¶ 41. Ms. Parker and Ms. Pippin performed their job duties as supervisors pursuant to Boulevard Motel's policies in reporting Ms. Martin's complaint of allegedly sexually harassing behavior up the chain of command. DSMF ¶ 45; PRDSMF ¶ 45.
11. Randy Crabtree and Beth Landergren
Ms. Parker discussed with Ms. Martin her (Ms. Parker's) belief that Mr. Crabtree and Ms. Landergren were involved in a romantic relationship before making reports of Mr. Crabtree sexually harassing Ms. Martin. PSAMF ¶ 4; DRPSAMF ¶ 4. Ms. Parker heard Ms. Landergren call Mr. Crabtree "sunshine" at work. Id.  Ms. Parker believed Ms. Landergren and Mr. Crabtree flirted openly at work and spent personal time together outside of work. PSAMF ¶ 5; DRPSAMF ¶ 5. Although Ms. Pippin did not know whether Ms. Landergren and Mr. Crabtree had an affair, she also heard Ms. Landergren refer to Mr. Crabtree as "sunshine" at work. PSAMF ¶ 6; DRPSAMF ¶ 6. In addition, Mr. Mello was aware of allegations that Ms. Landergren and Mr. Crabtree were romantically involved. PSAMF ¶ 13; DRPSAMF ¶ 13. Mr. Mello asked Ms. Landergren and Mr. Crabtree if there was in fact a romantic relationship; they both denied having such a relationship. Id. 
On May 11, 2010, Ms. Landergren received Confidential Memorandum from Ned Heiss, Vice President of Operations, rebuking her for the way she handled the investigation and her inappropriate involvement therein. PSAMF ¶ 17; DRPSAMF ¶ 17. Mr. Crabtree also received a written reprimand from Mr. Heiss on May 11, 2010. Id. 
12. Subsequent Events in 2010
On June 2, 2010, Ms. Pippin faxed a handwritten statement to Mr. Mello in which she relates Ms. Martin was still very upset, and felt that Ms. Landergren only cared about saving Mr. Crabtree. PSAMF ¶ 18; DRPSAMF ¶ 18. Also on June 2, 2010, Ms. Parker faxed a statement to Mr. Mello reporting a conversation she had with Veronica Connolly, a front desk employee: "Veronica said she had a feeling that if she didn't go along with Beth about the Abinair situation that she felt like she would be fired." PSAMF ¶ 19; DRPSAMF ¶ 19.
On July 8, 2010, Ms. Landergren responded to an email from Mr. Mello, in which he stated a need to hire a laundry person that would "be Supervisor (not Asst. Exec Hskpr) on two days, pay differential on those days but that person would not have managerial privileges (no hiring or firing) but would open and close the department, inspects rooms, etc., on the days Exec[utive Housekeeper] is off." PSAMF ¶ 20; DRPSAMF ¶ 20. Ms. Landergren's response was "Ok, that's exactly what Grace does now." Id.
13. 2011 Incident Involving Michael Cox
In 2011, Ms. Parker witnessed another maintenance employee, Michael Cox, take his shirt off and approach the back of another housekeeper. DSMF ¶ 42; PRDSMF ¶ 42. Ms. Parker reported the incident to Ms. Landergren. DSMF ¶ 43; PRDSMF ¶ 43. Ms. Parker understood that reporting to Ms. Landergren what she had witnessed regarding Mr. Cox's actions was consistent with the policy regarding supervisor responsibility for harassment. DSMF ¶ 44; PRDSMF ¶ 44.
14. Brenda Pippin and Grace Parker are Terminated in 2011
On or about February 23, 2011, Boulevard Motel terminated Ms. Parker's employment purportedly for a critical offense: violation of the company's ethics policy. DSMF ¶ 46; PRDSMF ¶ 46. On or about July 5, 2011, Boulevard Motel terminated Ms. Pippin's employment purportedly for an accumulation of ...