United States District Court, D. Maine
LORRAINE SCAMMAN, THERESA CHARETTE, DOROTHY RILEY, PETER HARRIMAN, and DEBORAH LINCOLN, Plaintiffs,
SHAWS SUPERMARKETS, INC. Defendant.
Jeffrey Neil Youne Jeffrey Neil Young Carol J. Garvan JOHNSON, WEBBERT & YOUNG, LLP Attorneys for Plaintiffs
K.. Joshua Scott Martha Van Oot JACKSON LEWIS P.C. Attorneys for Defendant
CERTIFICATE OF QUESTION OF STATE LAW TO THE MAINE SUPREME JUDICIAL COURT SITTING AS THE LAW COURT
JON D. LEVY U.S. DISTRICT JUDGE
This case involves the following question of law of the State of Maine that may be determinative of the cause and for which there are no clear controlling precedents in the decisions of the Maine Supreme Judicial Court:
Is a claim for disparate impact age discrimination under the Maine Human Rights Act, 5 M.R.S.A. § 4572(1)(A), evaluated under the "reasonable factor other than age" standard, see Smith v. City of Jackson, 544 U.S. 228 (2005); the "business necessity" standard, see Maine Human Rights Comm'n v. City of Auburn, 408 A.2d 1253 (1979); or some other standard?
The plaintiffs, Lorraine Scamman, Theresa Charette, Dorothy Riley, Peter Harriman, and Deborah Lincoln, are five former full-time employees of the defendant, Shaw's Supermarkets, Inc. ("Shaw's"). In November 2012, Shaw's terminated their employment as part of a reduction-in-force that it claims was necessary due to poor economic conditions. At the time of their termination, all of the plaintiffs were in their fifties. They assert that Shaw's facially neutral reduction-in-force policy violated the Maine Human Rights Act ("MHRA"), 5 M.R.S.A. §§ 4551-4634 (2015), because it laid off only full-time employees who were disproportionately older than the part-time employees who were not laid off and who retained their jobs. Accordingly, the plaintiffs assert that the policy had a disparate impact on Shaw's older employees. Plaintiffs seek to have their complaint certified as a class action. A stipulated statement of facts showing the nature of the case and the circumstances out of which the question of law arose is attached as Appendix A. See M.R. App. P. 25(b).
The parties disagree as to the legal standard that applies to plaintiffs' disparate impact age discrimination claim. Plaintiffs contend that the applicable standard is the "business necessity" standard, which applies in cases brought under Title VII of the Civil Rights Act of 1964, 42 U.S.CA. §§ 2000e-2000e-17 (2015). They argue that the operative language of the MHRA, 5 M.R.S A. § 4572(1)(A) (2015), is similar to the corresponding language of Title VII, 42 U.S.CA. § 2000e-2(a)(l). Shaw's contends that the applicable standard is the "reasonable factor other than age" standard, which applies in cases brought under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.A. § 623(f)(1) (2015). Shaw's argues that this is the applicable standard for an age discrimination claim under the MHRA because Maine generally follows federal law when construing provisions of the MHRA that correspond to federal law. The plaintiffs' memorandum of law supporting their position regarding the certified question is attached as Appendix B and Shaw's memorandum of law supporting its position regarding the certified question is attached as Appendix C.
The question of law certified by this Order satisfies the criteria of M.R. App. P. 25(a). The answer to the question may be determinative of the cause and there are no clear controlling precedents in the decisions of the Maine Supreme Judicial Court. As recognized in Dinan v. Alpha Networks, Inc., 2013 ME 22, J 12, 60 A.3d 792 (quoting White v. Edgar, 320 A.2d 668, 675 (Me. 1974)), federal-state comity is promoted where "the state court of last resort [is] given opportunity to decide state law issues on which there are no state precedents which are controlling or clearly indicative of the developmental course of the state law." Accordingly, I respectfully submit this certification to the Maine Supreme Judicial Court pursuant to 4 M.R.S.A. § 57 (2015) and M.R. App. P. 25(a), and I suggest that the plaintiffs be treated as the appellants in the proceedings before the Maine Supreme Judicial Court.
The Clerk of this Court is DIRECTED to cause twelve (12) copies of this Order and the Appendices to be certified, under official seal, to the Maine Supreme Judicial Court sitting as the Law Court. It is further ORDERED that the Clerk of this Court is authorized and directed to provide, without any costs to the Law Court, upon written request of the Chief Justice or the Clerk thereof, copies of any and all filings of the parties herein and of the docket entries pertaining to this case.
JOINT STATEMENT WITH STIPULATED FACTS
Defendant Shaw's Supermarkets, Inc. ("Defendant") and Plaintiffs Lorraine Scamman et al., on behalf of themselves and all others similarly situated ("Plaintiffs") (collectively the "Parties"), hereby jointly file this joint statement.
In support of their joint statement, the Parties state as follows:
1. The Defendant is a grocery retailer operating in five New England states. As of November 2, 2012 the Defendant had approximately 18, 000 employees.
2. As of November 2, 2012, the Defendant's operations were divided into nine regional districts; District 4 included all of the Defendant's Maine store locations.
3. The Plaintiffs were employed at the Defendant's locations in Maine on a full-time basis prior to November 2, 2012, when they were terminated as part of a reduction of force.
4. Plaintiff Lorraine Scamman was born in March of 1957. She began working for the Defendant in the 1970s, while she was still in high school. She returned to die Defendant's employment in 1978 and worked for the company continuously for the next 34 years. During her 36 years of employment widi the Defendant, Charrette worked at a variety of their locations, more recently as a full-time service desk/nonfood clerk in the Sanford, Maine store. She performed her job satisfactorily throughout her career with
5. Plaintiff Theresa Charrette was born in July of 1956. She began working for the Defendant in the early 1970s. During her 31 years of employment with the Defendant, Charette worked in a number of store locations, most recently as a full-time bakery clerk in the Westbrook, Maine store. She performed her job satisfactorily throughout her career widi the Defendant.
The November 2, 2012, Reduction in Force
6. On November 2, 2012, the Defendant implemented a reduction in force uiroughout its New England locations. On that date, the Defendant notified both Scamman and Charrette that their employment was terminated effective immediately.
7. In selecting associates for termination in Maine, the Defendant implemented a policy excluding part-time employees from consideration for termination. Based on mis policy, on November 2, 2012, the Defendant terminated sixty-six full-time employees in Maine as part of its reduction of force, including Scamman and Charrette.
8. The Defendant did not terminate any part-time employees in Maine in the November 2, 2012 reduction of force.
9. As of November 2, 2012, the Defendant's part-time employees in Maine were, on average, younger than the Defendant's full-time employees in Maine. As a result, the Defendant's specific policy of excluding part-time employees from consideration for termination caused the November 2, 2012, reduction of force to adversely affect a statistically significant higher proportion of older qualified employees, including Scamman and Charrette, as compared to younger qualified employees.
10. As of November 2, 2012, the Defendant's part-time employees in Maine earned, on average, significantly less per hour than the Defendant's full-time employees in Maine, and worked, on average, significantly fewer hours per week than the Defendant's full-time employees.
11. The Defendant states that it implemented the November 2, 2012, reduction of force because business imperatives made it necessary for it to cut costs by at least $550, 000 per week, ...