United States District Court, D. Maine
KRISTIN A. KING, Plaintiff,
STATE OF MAINE, DEPARTMENT OF CORRECTIONS, et al., Defendants.
KRISTIN A KING, Plaintiff, represented by DAVID G. WEBBERT,
JOHNSON WEBBERT & YOUNG LLP & CAROL GARVAN, JOHNSON WEBBERT &
DEPARTMENT OF CORRECTIONS, Defendant, represented by KELLY L.
MORRELL, OFFICE OF THE ATTORNEY GENERAL & SUSAN P. HERMAN,
ASSISTANT ATTORNEY GENERAL.
D GARRISON, Defendant, represented by KELLY L. MORRELL,
OFFICE OF THE ATTORNEY GENERAL & SUSAN P. HERMAN, ASSISTANT
ORDER[*] ON DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT
LEVY, District Judge.
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. Â§ 2000e et seq. (2016), and Title I of the
Civil Rights Act of 1991, 42 U.S.C.A. Â§ 1981a (2016), and the
Maine Human Rights Act, 5 M.R.S.A. Â§Â§ 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. King also sues her former supervisor,
David D. Garrison, under 42 U.S.C.A. Â§ 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.
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
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, Â¶Â¶ 137-39. 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, Â¶ 15
and 42, Â¶ 138.
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, Â¶Â¶ 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, Â¶ 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, Â¶ 52.
her shift on November 10 and 11, 2010, King made multiple
errors related to the inmate count. Id. at 16, Â¶Â¶
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, Â¶Â¶ 58-59 and 18, Â¶Â¶
65-66. 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, Â¶ 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, Â¶ 69. Following the
fact-finding hearing, the facility's director, Director
Scott Jones, suspended King for two shifts. Id. at
23, Â¶ 71. The union did not grieve King's suspension
under the collective bargaining agreement. Id. at
24, Â¶ 74.
January 16, 2011, King committed an error in an inmate count.
Id. at 24-25, Â¶Â¶ 76-80. 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, Â¶Â¶ 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, Â¶ 76 (response). A fact-finding
hearing related to the error was held by Colonel Daniels on
February 3, 2011. Id. at 25-26, Â¶ 81. On February 8,
before a decision was issued, King committed another error in
recording inmate counts. Id. at 27, Â¶Â¶ 83, 85.
Garrison reported the error to Colonel Daniels. Id.
at 27, Â¶ 88 (citing ECF No. 84-4 at 184, Â¶ 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, Â¶Â¶ 89, 92 and 33, Â¶ 115.
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, Â¶ 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, Â¶Â¶ 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, Â¶ 94. King was placed on
family medical leave from February 13 through May 11, 2011.
Id. at 29, Â¶ 96.
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,
Â¶ 97. There were, however, no positions available at the
facility that would guarantee that these restrictions were
met. Id. at 30, Â¶ 98. Ultimately, King was placed on
an unpaid medical leave of absence beginning on May 12, 2011.
Id. at 31, Â¶ 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, Â¶Â¶ 104,
107. King did not return the ADA paperwork. Id. at
32, Â¶ 109.
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, Â¶Â¶ 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, Â¶ 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, Â¶ 133.
fact-finding hearing related to the February 8 errors was
held on September 8, 2011. Id. at 33, Â¶ 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, Â¶ 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, Â¶Â¶ 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, Â¶Â¶ 127-28, 130-31.
SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56
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 MaymÃ v. P.R.
Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008)).
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).
Local Rule 56
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.
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 ...