United States District Court, D. Maine
RECOMMENDED DECISION ON DEFENDANT'S MOTION FOR
Rich III United States Magistrate Judge
defendant, General Dynamics-OTS, Inc., moves for summary
judgment as to all claims asserted against it in this age
discrimination in employment action. For the reasons that
follow, I recommend that the court grant the motion.
Applicable Legal Standards
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. University 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 the potential of
determining the outcome of the litigation.”
Id. (quoting Maymi 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) (quoting Clifford v.
Barnhart, 449 F.3d 276, 280 (1st Cir. 2006) (emphasis
omitted)); Fed.R.Civ.P. 56(c). “As 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)
(citation and internal punctuation 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 additional statement of
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 fact.” 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 address another party's
assertion of fact as required by Rule 56(c), the court may .
. . consider the fact undisputed for purposes of the
parties' statements of material facts, credited to the
extent that they are either admitted or supported by record
citations in accordance with Local Rule 56, with disputes
resolved in favor of the plaintiff as the nonmovant, reveal
defendant, which changed its name from General Dynamics
Armament and Technical Products to General Dynamics-OTS, Inc.
(“GD-OTS”) in August 2013, operates a
manufacturing facility in Saco, Maine, where it manufactures
military weapons for the United States Department of Defense.
Defendant General Dynamics-OTS, Inc.'s Statement of
Material Facts in Support of Motion for Summary Judgment
(“Defendant's SMF”) (ECF No. 32) ¶ 1;
Plaintiff's Opposing Statement of Material Facts
(“Plaintiff's Responsive SMF”) (ECF No. 39)
¶ 1. In 2013, hourly production workers at GD-OTS,
including the plaintiff, were represented by Local 406 New
England Joint Board, UNITE HERE (the “Union”),
and were subject to a collective bargaining agreement
(“the CBA”) between GD-OTS and the union, dated
November 5, 2012. Id. ¶ 2. The hourly workers
were also subject to the defendant's Work Rules &
Policies and General Dynamic's Standards of Business
Ethics and Conduct. Id.
has an established policy that prohibits all forms of
unlawful harassment, discrimination, and retaliation,
including on the basis of age. Id. ¶ 3. This
policy is distributed to all of its employees. Id.
GD-OTS also provides regular training to all of its employees
regarding its policy against unlawful harassment,
discrimination, and retaliation, including instruction on
what constitutes unlawful harassment, discrimination, and
retaliation and how to make a complaint of harassment,
discrimination, or retaliation. Id.
attended ethics training while employed at GD-OTS, which
included training on GD-OTS's policy against sexual
harassment. Id. ¶ 4. He also received General
Dynamics' Standard of Business and Ethics Conduct.
Id. Other than Pepin's complaint of age
discrimination, GD-OTS has not had a complaint of age
discrimination since GD-OTS acquired Saco Defense Corp. in
May 2000. Id. ¶ 5.
was hired by Saco Defense Corp., GD-OTS's corporate
predecessor, o August 13, 1979, as an assembler. Id.
¶ 6. In 1984, he became an NC miller. Id.
GD-OTS acquired Saco Defense Corp. on or about May 11, 2000,
and Pepin became an employee of GD-OTS. Id. ¶
7. In 2004, Pepin became a metal removal specialist and
remained in that position throughout his tenure with GD-OTS.
Id. In June 2013, GD-OTS had a reduction in force
and laid off approximately 110 employees at the Saco
location. Id. ¶ 8. Pepin was not selected for
August 12, 2013, Pepin had a verbal altercation with a
co-worker, Neil Lagasse. Id. ¶ 9. The
altercation was loud and profane. Id. As a result of
the altercation, on August 15, 2013, GD-OTS gave Pepin and
Lagasse each a one-day suspension without pay, for
unacceptable workplace behavior. Id. ¶ 11. The
union did not grieve the suspension. Id. On August
19, 2013, GD-OTS gave Pepin a three-day suspension without
pay for failure, on August 16, 2013, to gauge parts at the
required frequency to make sure that they met customer
specifications. Id. ¶ 14. The union did not
grieve this suspension. Id.
August 19, 2013, Lagasse told Chuck Bates, Manager, Staff
Development, that Pepin had sexually harassed Sally Bartlett,
a former employee, while she was employed at GD-OTS.
Id. ¶ 15. On or about August 19, 2013, Bates
spoke with Bartlett about the allegations. Id.
¶ 16.Bartlett told Bates that she felt sexually
harassed by Pepin while she worked with him, and that he
showed her pictures of his penis and of his girlfriend
masturbating. Id. She suggested that Bates speak to
Patty Borton, one of her former co-workers. Id. She
told Bates that she did not complain about Pepin while she
worked at GD-OTS because she was afraid that Pepin would
retaliate against her. Id. ¶ 17. She decided
not to return to work at GD-OTS because of Pepin.
spoke with Borton on August 19, 2013. Id. ¶ 18.
She said that she had felt sexually harassed by Pepin.
Id. She said that Pepin would show her pictures of
his penis on his cell phone, sat so that his penis was
exposed to her, and often made sexual comments or gestures
that made her very uncomfortable and caused her a lot of
emotional distress. Id. Borton told Bates that she
did not complain about Pepin because she was afraid of losing
her job and that Pepin would retaliate against her.
Id. ¶ 19.
of GD-OTS's investigation into the complaints against
Pepin, on August 19, 2013, Bates also interviewed Rick Morin,
CNC operator, Lagasse, and Mark Lessard, CNC operator, all of
whom had worked in the same area as Bartlett and Borton at
the relevant time. Id. ¶ 20. Morin told Bates
that he was reluctant to participate in the investigation for
fear of retaliation from Pepin, but acknowledged knowing
about the sexually explicit photos that Pepin was allegedly
showing at work. Id. ¶ 21. He stated that he
remembered Bartlett telling Pepin to “get away from
me[.] I don't want to see pictures of your penis.”
told Bates that he was aware of the photos that Pepin was
allegedly showing at work. Id. ¶
He also said that he knew about Pepin's use of
inappropriate language and comments that Pepin made about
Bartlett's sexual orientation. Id. Lessard told
Bates that he was aware of the sexually explicit photos that
Pepin was allegedly showing to people at work. Id.
¶ 23. He also said that Pepin directed
inappropriate conduct at Bartlett, who did not deserve it.
his investigation, Bates concluded that Pepin had made
inappropriate sexual comments, used inappropriate sexual
language and pictures, and made inappropriate gestures in the
workplace for several years, through at least December 2012.
Id. ¶ 26. Based on his findings, Bates
recommended that Pepin be terminated from employment.
Id. ¶ 27. On August 20, 2013, Bates prepared a
Request for Termination based on the results of his
investigation of Pepin's conduct. Id. ¶ 28.
He also prepared a memorandum summarizing the results of his
investigation and the reason for termination. Id.
August 20, 2013, Bates notified Denise Bailey, secretary of
the union, that a sexual harassment complaint had been filed
against Pepin by some of his female co-workers, and that
GD-OTS would be suspending Pepin pending discharge.
Id. ¶ 29. On August 21, 2013, the operations,
human resources, and legal departments of GD-OTS approved the
termination of Pepin's employment. Id. ¶
30. On that day, Bates sent a suspension discharge notice to
Pepin by certified mail with a copy to the union.
Id. ¶ 31. According to the notice, the
suspension became an automatic discharge on the seventh
regularly scheduled workday after the date of the notice,
unless notification to the contrary was provided by GD-OTS.
August 22, 203, Bates and Marc Parent, president of the
union, met with Pepin to give him the notice of disciplinary
action. Id. ¶ 32. During the meeting, Pepin
denied engaging in any of the conduct identified in the
notice. Id. Pepin, Parent, and Bates signed the
notice. Id. On or about August 26, 2013, the union
filed a grievance regarding Pepin's discharge.
Id. ¶ 33. Pepin told Parent and the union his
side of the story, denied sexually harassing his co-workers,
and denied engaging in any of the conduct listed in the
notice of disciplinary action. Id.
August 28, 2013, Bobbi Courtois, another of Pepin's
co-workers, told Bates that, years before, Pepin had reached
down her blouse and touched her breast. Id. ¶
Sally Bartlett, Patty Borton, and Bobbi Courtois each later
signed an affidavit verifying the information provided to
Bates during the investigation of the complaints against
Pepin. Id. ¶ 35.
about August 28, 2013, Bailey began an investigation of the
allegations of sexual harassment against Pepin, which
included vulgar language in the workplace, showing sexual
pictures to other employees, inappropriately showing private
body parts to another employee, and discussing the sexual
orientation of other employees. Id. ¶ 36. On or
about September 11, 2013, Bailey spoke with Bartlett, a
former machine operator for GD-OTS, about her complaints
against Pepin. Id. ¶ 37. Bartlett told
Bailey that Pepin routinely used vulgar language, and showed
her pictures of his penis and of his girlfriend masturbating.
Id. Bartlett told Bailey that she decided not to
return to work at GD-OTS because of Pepin's conduct.
about September 12, 2013, Bailey spoke with Patty Borton, an
inspector for GD-OTS, about her complaints against Pepin.
Id. ¶ 38. Borton told Bailey that Pepin talked
about sex all the time and showed her pictures of his penis.
Id. She also told Bailey that Pepin showed her his
penis through the bottom of his shorts while he sat at his
work station. Id. Bartlett and Borton did not report
Pepin's conduct sooner because they feared retaliation.
Id. ¶ 39.
on the results of Bailey's investigation, the union
withdrew the grievance regarding Pepin's discharge.
Id. ¶ 40.
August 2013, the average age of GD-OTS's employees was
50.25. Id. ¶ 41. In May 2014, nearly 60% of
GD-OTS's employees were in their 50s, 60s, and 70s.
Id. In May 2014, the average age of GD-OTS's
employees was 50.18. Id. ¶ 42. In ...