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King v. State, Department of Corrections

United States District Court, D. Maine

July 12, 2016

KRISTIN A. KING, Plaintiff,





          JON D. LEVY, District Judge.

         Kristin A. King was employed as a correctional officer at the Downeast Correctional Facility ("DCF") from September 2004 until her termination in September 2011. ECF No. 41 at 1, 3, 10 (First Amended Complaint). At the time she was terminated, King was the only female and the only openly gay uniformed officer working at the facility. ECF No. 73 at 2. King brings this action against her former employer, the State of Maine, Department of Corrections, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. (2016), and Title I of the Civil Rights Act of 1991, 42 U.S.C.A. § 1981a (2016), and the Maine Human Rights Act, 5 M.R.S.A. §§ 4551-4634 (2016), by (1) subjecting her to intentional discrimination based on her sex and sexual orientation; (2) subjecting her to a hostile work environment on the basis of her sex and sexual orientation; and (3) retaliating against her in response to her charge of discrimination. ECF No. 41 at 3, 11.[1] King also sues her former supervisor, David D. Garrison, under 42 U.S.C.A. § 1983 (2016), alleging that he deprived her of rights guaranteed by the First and Fourteenth Amendments to the United States Constitution. ECF No. 41 at 3, 12-13.

         The Department and Garrison seek summary judgment on all of King's claims pursuant to Federal Rule of Civil Procedure 56. ECF No. 64. For the reasons I will explain, I deny their motion.


         During the period of King's employment as a correctional officer, the DCF was a minimum to medium security prison with approximately 150 male inmates. ECF No. 64 at 2. King's annual performance evaluations were positive and offered praise as to how she performed her duties. ECF No. 83 at 41-42, ¶¶ 137-39.[2] The most recent and final evaluation was completed in October 2010 and was signed by Garrison, who was then a sergeant at the facility. Id. at 3, ¶ 15 and 42, ¶ 138.

         In January of 2010, King received a formal written counseling slip from Garrison for two errors that she made during a single shift in connection with the inmate count. Id. at 14-15, ¶¶ 50-51. King admits that she neglected to take a formal count after a mass movement of inmates in one of the dorms, and that during the same shift, she made an error in recording a count for another dorm. Id. at 15, ¶ 51. A counseling slip is not considered to be a form of discipline, but is instead a means of improving an employee's job performance. Id. at 15, ¶ 52.

         During her shift on November 10 and 11, 2010, King made multiple errors related to the inmate count. Id. at 16, ¶¶ 54-55; ECF No. 60-7 at 14. The errors were discovered by another officer; they were reported to Garrison and one error was reported to a sergeant, Darrell Daniels, who was not her direct supervisor and resulted in the facility undertaking an emergency count. ECF No. 83 at 16-17, ¶¶ 58-59 and 18, ¶¶ 65-66.[3] A disciplinary fact-finding hearing regarding the November 10 and 11 errors was conducted by Colonel David Daniels, the Chief of Security, on November 30, 2010. Id. at 18, ¶ 68. Although King did not dispute that she had committed the errors, her union representative asserted that King was being unfairly singled out for discipline. Id. at 22, ¶ 69. Following the fact-finding hearing, the facility's director, Director Scott Jones, suspended King for two shifts. Id. at 23, ¶ 71. The union did not grieve King's suspension under the collective bargaining agreement. Id. at 24, ¶ 74.

         On January 16, 2011, King committed an error in an inmate count. Id. at 24-25, ¶¶ 76-80.[4] The parties dispute how the error was discovered and corrected. See id. The Department contends that Garrison discovered the error and that after he questioned King, she inappropriately changed the count sheet without having first conducted a required verification count. Id. at 24-25, ¶¶ 76, 78, 79. King contends that she discovered her error and immediately corrected and initialed the error as she had been trained to do. Id. at 24, ¶ 76 (response). A fact-finding hearing related to the error was held by Colonel Daniels on February 3, 2011. Id. at 25-26, ¶ 81. On February 8, before a decision was issued, King committed another error in recording inmate counts. Id. at 27, ¶¶ 83, 85. Garrison reported the error to Colonel Daniels. Id. at 27, ¶ 88 (citing ECF No. 84-4 at 184, ¶ 31; ECF No. 84-5 at 4). A fact-finding hearing regarding the February 8 error was scheduled for February 14, and then rescheduled for February 28, but, as will be explained, was not held until September 8. Id. at 28-29, ¶¶ 89, 92 and 33, ¶ 115.

         King claims that she "began to experience significant stress and anxiety in 2011 as a result of management singling her out and treating her differently than other officers." Id. at 77, ¶ 239. On February 11, 2011, King called in sick and delivered a doctor's note to the Department stating that she could not work through February 16. Id. at 28-29, ¶¶ 90-91. On February 16, King called the facility's director and told him that she had another doctor's note stating that she could not work until further notice. Id. at 29, ¶ 94. King was placed on family medical leave from February 13 through May 11, 2011. Id. at 29, ¶ 96.

         In mid-March, the Department received an M-1 workers' compensation form that stated that King could return to work with the following restrictions: "minimally stressful work environment, low auditory, low visual, low stimulation area such as solitary confinement." Id. at 29, ¶ 97. There were, however, no positions available at the facility that would guarantee that these restrictions were met. Id. at 30, ¶ 98. Ultimately, King was placed on an unpaid medical leave of absence beginning on May 12, 2011. Id. at 31, ¶ 105. She was advised of her right to request an accommodation under the Americans with Disabilities Act ("ADA") and was provided the required paperwork, as well as the required paperwork for an unpaid sick leave of absence pursuant to the union's collective bargaining agreement. Id. at 31, ¶¶ 104, 107. King did not return the ADA paperwork. Id. at 32, ¶ 109.

         In June 2011, King wrote to the Department stating that she could return to work in a light-duty capacity in the Main Control office, and in August her health care provider wrote that she was able to return to work in the Main Control office. Id. at 32, ¶¶ 111, 113. Because of the pending disciplinary proceedings related to the January 16 and February 8 count errors, the Department wrote to King on August 31, 2011, to advise her that she was being placed on paid administrative leave pending the completion of the fact-finding hearing previously scheduled for February 28. Id. at 32-33, ¶ 114. King filed a charge of discrimination with the Maine Human Rights Commission on June 30, 2011, and the Department became aware of it in August 2011. Id. at 40-41, ¶ 133.

         The fact-finding hearing related to the February 8 errors was held on September 8, 2011. Id. at 33, ¶ 115. Neither King nor her union representative disputed the facts or the record regarding her February 8 count errors, but both King and the union representative again asserted that King was being singled out for discipline because of her sex and sexual orientation. Id. at 33, ¶ 116; ECF No. 84-4 at 152. Following the fact-finding hearing, the facility's director terminated King's employment on September 20, 2011. ECF No. 83 at 33, ¶¶ 117-18. The union grieved King's termination under the collective bargaining agreement, but the arbitrator found that the Department had just cause to terminate King's employment and that the union had failed to prove that King was treated differently or less favorably than other correctional officers with histories similar to King's. Id. at 39-40, ¶¶ 127-28, 130-31.


         A. Federal Rule of Civil Procedure 56

         Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). "A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in favor of the non-moving party.'" Johnson v. Univ. of P.R., 714 F.3d 48, 52 (1st Cir. 2013) (quoting Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008)). "A fact is material if it has potential to determine the outcome of the litigation." Id. (citing Maymí v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008)).

         The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether this burden is met, the court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Johnson, 714 F.3d at 52. Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must "produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Brooks v. AIG SunAmerica Life Assur. Co., 480 F.3d 579, 586 (1st Cir. 2007) (citing Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006)) (internal quotation marks and emphasis omitted); Fed.R.Civ.P. 56(c). "[A]s to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party." In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (internal quotation and citation omitted).

         B. Local Rule 56

         The evidence that the court may consider in deciding whether genuine issues of material fact exist for purposes of summary judgment is circumscribed by the local rules of this district. See Loc. R. 56. The moving party must first file a statement of material facts that it claims are not in dispute. See Loc. R. 56(b). Each fact must be set forth in a numbered paragraph and supported by a specific record citation. See id. The nonmoving party must then submit a responsive "separate, short, and concise" statement of material facts in which it must "admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts[.]" Loc. R. 56(c). The nonmovant likewise must support each denial or qualification with an appropriate record citation. See id. The nonmoving party may also submit its own statement of additional material facts that it contends are not in dispute, each supported by a specific record citation. See id. The movant then must respond to the nonmoving party's statement of additional facts, if any, by way of a reply statement of material facts, in which it must "admit, deny or qualify such additional facts by reference to the numbered paragraphs" of the nonmovant's statement. See Loc. R. 56(d). Again, each denial or qualification must be supported by an appropriate record citation. See id.

         Local Rule 56 directs that "[f]acts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted." Loc. R. 56(f). In addition, "[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment" and has "no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of facts." Id .; see also, e.g.,Borges ex rel. S.M.B.W. v. Serrano-Isern,605 F.3d 1, 5 (1st Cir. 2010); Fed.R.Civ.P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly ...

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