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Webb v. Town of Orono

United States District Court, D. Maine

November 25, 2015

NORMAN E. WEBB, Plaintiff,
v.
TOWN OF ORONO, Defendant

MEMORANDUM [1] OF DECISION ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

JOHN C. NIVISON U.S. MAGISTRATE JUDGE

In this action, Plaintiff Norman Webb alleges that Defendant Town of Orono unlawfully terminated his employment. More specifically, Plaintiff maintains that Defendant terminated his employment because of his age and physical disability, and because he filed an administrative discrimination claim.

The matter is before the Court on Defendant’s Motion for Summary Judgment. (Motion, ECF No. 33.) Through its motion, Defendant contends that the record does not support any of Plaintiff’s claims. Following a review of the record, and after consideration of the parties’ arguments, the Court grants in part and denies in part the motion.

Background

Plaintiff Norman Webb worked for the Defendant from August 1983 to June 14, 2012. (Pl.’s Statement of Additional Material Facts (PSAMF) ¶ 49.)[2] On his last day of work for Defendant, Plaintiff was 61 years of age. (Id. ¶ 50.) At the end of his employment, Plaintiff was serving as Chief of the Fire Department in accordance with a written contract that provided for a term of December 21, 2009, through December 31, 2012. (Id. ¶ 5.)

Defendant’s Town Manager, Sophia Wilson, began working in that capacity on April 1, 2011. (Def.’s Statement of Material Facts (DSMF) ¶ 1.)[3] Because Ms. Wilson believed that the Defendant’s Town Council hired her to be a “hands-on” manager, she was involved in the day-today operations of the Town, worked closely with the department heads, held the department heads accountable for the responsibilities of their positions, and tried to stay informed about developments in all of the departments. (Id. ¶ 2.)

In April 2011, after some emergency medical service records were determined to be missing, Plaintiff was notified that “notice of counseling” by which notice Ms. Wilson informed Plaintiff that he must review the Fire Department’s HIPPA policies and procedures. (Id. ¶ 12.)[4]Ms. Wilson subsequently authorized Plaintiff to place a lock on the administrative wing of the Fire Station, provided that he always informed her and the police chief of the current code to ensure that they could access the Fire Station. (Id.)

In or around January 2012, with the term of Plaintiff’s employment agreement set to expire in approximately 11 months, Ms. Wilson met with Plaintiff, and asked him how much longer he planned to work as Fire Chief. Plaintiff advised that he wanted to work until he was 66 years old. (Id. ¶ 6.) Ms. Wilson maintains that she did not know Plaintiff’s age at that time, and asked Plaintiff about his plans for the purpose of succession planning. (Id. ¶ 7.) She did not mention succession planning in her meeting with Plaintiff.[5] (Id.) During the meeting, when it was obvious that Plaintiff was having difficulty walking, Ms. Wilson asked Plaintiff about his difficulty, and he informed her that he needed to have his knees replaced. (Id. ¶ 8.) Plaintiff’s condition did not render him unable to perform his job and he could satisfy the physical requirements of the annual physical. (PSAMF ¶¶ 54 – 55.) In April 2012, when they were walking together, Ms. Wilson said to Plaintiff, “You’re walking kind of rough, your knees must be in bad shape.” (Id. ¶ 56.)

On May 26, 2012, Police Sergeant Wilcox reported that one of the Fire Department’s employees acted inappropriately while responding to an automobile accident on the Main Street bridge (the bridge incident). (DSMF ¶ 9.) Ms. Wilson met with Plaintiff and Police Chief Gary Duquette to discuss the bridge incident, and she instructed Plaintiff to conduct an investigation. (Id. ¶ 10; PSAMF ¶ 58.) Plaintiff learned of the bridge incident five minutes prior to the meeting. (PSAMF ¶ 60.) At the bridge incident, six police officers and two firefighters were present. Following the meeting, Plaintiff received reports from the other firefighter EMT who was on the scene, and from the employee under investigation; Plaintiff provided copies of the reports to Ms. Wilson and Chief Duquette. (Id. ¶ 61.)

On or about June 4, 2012, after an evening meeting with the Town Council, Ms. Wilson attempted to enter the Fire Station, but could not access the station because her code for the key panel lock was no longer valid. (Id. ¶ 11.) On June 5, Plaintiff and Ms. Wilson met for their regular weekly meeting, and Ms. Wilson asked Plaintiff the reason for her inability to access with the code the administrative wing of the Fire Station. (Id. ¶ 14.) Plaintiff advised that he changed the code on June 1, without informing Ms. Wilson or Chief Duquette, because he did not believe that probation and parole should be able to access and use the conference room in the Fire Department’s administrative wing. (Id. ¶ 15.)

At the same meeting, Ms. Wilson asked Plaintiff about his investigation into the bridge incident. Plaintiff reported that he had not found any wrongdoing on behalf of the Fire Department’s employees, that he believed the Police Department personnel should have intervened if there was an issue, and that he had not prepared a written report regarding the investigation.[6](DSMF ¶ 16.) At the time, Plaintiff had obtained statements from the two EMTs at the scene, and had asked the medical director and the fire chief of Old Town to review the EMS run sheets; they had reported nothing amiss.[7] (Id. ¶ 17.)

On June 6, Plaintiff met with Ms. Wilson and a human resources consultant. Ms. Wilson explained her concerns about Plaintiff’s work performance, including her concerns about conduct that she believed amounted to insubordination. (Id. ¶ 18.)[8] Ms. Wilson never provided Plaintiff with any written disciplinary action other than with respect to the HIPPA matter. (PSAMF ¶ 69.) Ms. Wilson also did not raise any issues regarding the operation of the Fire Department. (Id. ¶ 72.)

Ms. Wilson specifically discussed Plaintiff’s refusal to work cooperatively with Police Chief Duquette, and his derogatory comments about the police department to Sergeant Wilcox as part of his investigation of the bridge incident. (DSMF ¶ 19.)[9] Chief Duquette is several years younger than Plaintiff. (PSAMF ¶ 109.) Because the day before Plaintiff spoke with Sergeant Wilcox, Ms. Wilson met with Plaintiff and Chief Duquette to emphasize that it was important for them to work together in connection with the bridge incident, Ms. Wilson interpreted Plaintiff’s derogatory remarks as defiant of her directive to work collaboratively.[10] (DSMF ¶ 20.) Plaintiff and Ms. Wilson also discussed Plaintiff’s unilateral decision to change the lock on the Fire Station, including her belief that his actions constituted insubordination. During the discussion, Ms. Wilson learned that Plaintiff still had not given the new code to the police chief. (Id. ¶ 21.)

At the conclusion of the June 6 meeting, Ms. Wilson directed Plaintiff to develop a concrete plan to restore her confidence in his ability to lead the Fire Department.[11] (Id. ¶ 23.) Plaintiff committed to work on his relationship with the police chief, talk with Ms. Wilson more often, and provide Ms. Wilson with more details about the Fire Department’s operations and any issues that he might have to address within the Fire Department. (Id. ¶ 24.) Ms. Wilson and the consultant informed Plaintiff that he needed to provide specific, quantifiable steps that could be evaluated, and that broad statements about ill-defined goals were not acceptable. (Id. ¶ 25.) At the conclusion of the meeting, Plaintiff understood that Ms. Wilson had given him a list of matters that he needed to work on, that his job was in jeopardy, and that she wanted to meet the next day, June 7, to discuss his concrete plan. (Id. ¶ 26.) Ms. Wilson asked Plaintiff to provide specific ways that he planned to change. (Id. ¶ 29.) Plaintiff maintains that he “had no idea what Ms. Wilson was looking for” and “had no idea what was wrong” other than the access code and his discord with the police chief. (PSAMF ¶ 73.)

On June 7, Ms. Wilson met with Plaintiff to afford him an opportunity to present his specific plan to restore her confidence in his ability to lead the Fire Department. (DSMF ¶ 27.) Plaintiff appeared at the meeting with some notes, but he did not present a written plan.[12] When Ms. Wilson asked him for the specific measures that he planned to implement, Plaintiff said that he was going to work on his relationship with the police chief and talk with Ms. Wilson more often. (Id. ¶ 28.) Ms. Wilson told Plaintiff that she would think about the situation over the upcoming weekend, and that they would meet again the following week. (Id. ¶ 31.)

On June 12, Plaintiff and Ms. Wilson met for their regular weekly meeting. (Id. ¶ 32.) According to Ms. Wilson, they discussed the status of Plaintiff’s investigation into the bridge incident. (Id.)[13] Ms. Wilson informed Plaintiff that his report that the Fire Department did not engage in any wrongdoing and that the matter was closed did not constitute a sufficient investigative report. (Id. ΒΆ 33.) At the end of the meeting, Ms. Wilson told Plaintiff ...


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