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Berube v. UBS Financial Services, Inc.

United States District Court, D. Maine

December 12, 2016

FAYE BERUBE, Plaintiff
v.
UBS FINANCIAL SERVICES, INC., Defendant

          DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          D. BROCK HORNBY, UNITED STATES DISTRICT JUDGE

         The remaining issue in this lawsuit is whether Faye Berube, a former employee of UBS Financial Services, Inc. (UBS), suffered unlawful discrimination in her efforts to obtain business expense reimbursement after her termination. I previously ruled that Maine's statute of limitations barred Berube's disability claims against UBS for terminating her and the allegedly hostile work environment that preceded her termination (ECF No. 21). But Berube claims that, after terminating her and within the statute of limitations, UBS denied her access to the computer system in her office, which resulted in her inability to submit certain expense reports for reimbursement. I heard oral argument on UBS's motion for summary judgment on December 5, 2016. I now conclude that Berube has failed to produce evidence that UBS took adverse employment action against her. She has therefore failed to state a claim under Maine Human Rights Act (MHRA), 5 M.R.S.A. § 4572, and I Grant UBS's motion for summary judgment.

         Facts

         Where facts are disputed, I state them in the light most favorable to Berube, the non-moving party. UBS concedes many of the facts solely for purposes of its summary judgment motion.

         Faye Berube worked for UBS as a Complex Manager for nearly five years, beginning in May 2008. Def.'s Statement of Material Facts ¶¶ 4-5 (ECF No. 39) (Def.'s SMF); Pl.'s Resp. to Def.'s Statement of Material Facts ¶¶ 4-5 (ECF No. 41) (Pl.'s RSMF). In this position, her responsibilities included leading all operational, administrative, and supervisory functions and staff within UBS's Northern New England Complex. Def.'s SMF ¶¶ 2-3, 14; Pl.'s RSMF ¶¶ 2-3, 14; Complex Admin. Manager Job Description, Aff. of Francis X. Dee, Ex. E (ECF No. 39-6). In early 2011, she took a medical leave due to depression and anxiety. Pl.'s Statement of Material Facts ¶ 11 (ECF No. 41-1) (Pl.'s SMF); Def.'s Resp. to Pl.'s Statement of Material Facts ¶ 11 (ECF No. 43) (Def.'s RSMF). Upon her return to the office, she discussed her depression, anxiety, and medications with her supervisors on an ongoing basis. Pl.'s SMF ¶¶ 15, 17; Def.'s RSMF ¶¶ 15, 17.

         On April 3, 2013, Berube was asked to coordinate the staffing assignment of a Sales Assistant to a Financial Advisor. Def.'s SMF ¶ 17; Pl.'s RSMF ¶ 17. She subsequently became overwhelmed, beginning to cry and shake uncontrollably, and proceeded to leave the building. Def.'s SMF ¶¶ 16, 19; Pl.'s RSMF ¶¶ 16, 19. As she was exiting the building, she encountered Sean Steady, the Financial Advisor involved in her staffing assignment, and began to experience a breakdown. Def.'s SMF ¶¶ 19-21; Pl.'s RSMF ¶¶ 19-21. Berube contemporaneously informed Thomas Hanlon, her supervisor, “That was the last straw[.] I left because I am so f mad at hal and jad.”[1] Def.'s SMF ¶ 22; Pl.'s RSMF ¶ 22; Apr. 3, 2013 E-mail from Faye Berube to Thomas Hanlon, Aff. of Francis X. Dee, Ex. H (ECF No. 39-9). She did not return to the office. See Pl.'s SMF ¶¶ 24-25; Def.'s RSMF ¶¶ 24-25.

         After that incident, Berube was asked to meet UBS management in public at the Tim Horton's restaurant in South Portland, Maine. Pl.'s SMF ¶ 25; Def.'s RSMF ¶ 25. Berube met there with Hanlon and Judith Fenerty, Hanlon's supervisor, on April 11. Def.'s SMF ¶ 24; Pl.'s RSMF ¶ 24. They informed her that she was being terminated from UBS. Def.'s SMF ¶ 24; Pl.'s RSMF ¶ 24. When Berube asked why she was being terminated, Hanlon replied, “Faye, you can't keep flipping out in the office.” Def.'s SMF ¶ 25; Pl.'s RSMF ¶ 25. Berube was not allowed access to her office or her computer following this meeting. Pl.'s SMF ¶ 31; Def.'s RSMF ¶ 31. She also had to wait for a period of time to receive her personal belongings from the office. Pl.'s SMF ¶ 32; Def.'s RSMF ¶ 32. She received some of her belongings on April 26, 2013, and the remainder of her belongings sometime after May 3, 2013. Pl.'s SMF ¶¶ 32-34; Def.'s RSMF ¶¶ 32- 34.

         At the time of her termination, Berube had several outstanding charges on her corporate American Express card, Def.'s SMF ¶ 36; Pl.'s RMSF ¶ 36, the card she used for business expenses during her employment at UBS, Pl.'s SMF ¶ 26; Def.'s RSMF ¶ 26. As part of the application for her American Express card, Berube had affirmed that she would use the card for only business or commercial purposes, Def.'s SMF ¶¶ 34-35; Pl.'s RSMF ¶¶ 34-35, and that she would be liable to American Express for all charges, Pl.'s SMF ¶ 10; Def.'s RSMF ¶ 10. In submitting expense reports to UBS for reimbursement before her termination, Berube typically used UBS's CONCUR system, which electronically synchronized with her American Express card statement to create a prepopulated expense report without the need for paper documentation. Pl.'s SMF ¶¶ 27-28; Def.'s RSMF ¶¶ 27-28. She also used her computer's Outlook calendar to track her travels and note which days corresponded to which expenses. Pl.'s SMF ¶ 29; Def.'s RSMF ¶ 29.

         Following her termination, UBS provided Berube with a copy of the form to be used for submitting expenses for reimbursement. Def.'s SMF ¶ 38; Pl.'s RSMF ¶ 38. Berube accordingly submitted paper reimbursement requests for several outstanding business expenses and was fully reimbursed for all the expenses she submitted, Def.'s SMF ¶ 41-42; Pl.'s RSMF ¶¶ 41-42; Pl.'s SMF ¶ 30; Aff. of Hal Dursema ¶ 6 (ECF No. 39-12); Faye Berube Dep. Tr. 192:6-9 (ECF No. 41-4), although she waited at least a month for payment after submitting the paper reimbursement requests, Pl.'s SMF ¶ 30; Def.'s RSMF ¶ 30. Berube did not, however, submit reimbursement requests for approximately $1, 000 in charges on her American Express card.[2] Def.'s SMF ¶ 43; Pl.'s SMF ¶ 43; Faye Berube Dep. Tr. 192:15-20 (ECF No. 41-4).

         On May 3, 2013, Berube advised Roxanne Jodzio, a UBS Human Resources specialist, of her difficulty in submitting these remaining reimbursement requests because she was not allowed access to her office.[3] May 3, 2013 E-mail from Faye Berube to Roxanne Jodzio, Aff. of Sarah A. Churchill, Ex. E 1 (ECF No. 41-7). Although UBS did not physically allow Berube into her office to access her computer and personal belongings, Pl.'s SMF ¶ 31; Def.'s RSMF ¶ 31, Jodzio offered to help her locate relevant information for submitting her business expenses, Def.'s SMF ¶ 40; Pl.'s RSMF ¶ 40. On May 6, 2013, Jodzio sent the plaintiff an e-mail:

Regarding the expenses, I would hope that through receipts and the credit card statements, you would be able to [put] together the timeline of your branch visits. As you may recall, once an individual is terminated, Outlook is [no] longer available. As such, if there is some other way that I can help you to determine the timeframes, please let me know. If you would like me to check in with your former direct reports regarding specific dates in their branches, please let me know.[4]

Def.'s SMF ¶ 40; Pl.'s RSMF ¶ 40; May 6, 2013 E-mail from Roxanne Jodzio to Faye Berube, Aff. of Francis X. Dee, Ex. M (ECF No. 39-14).

         Jodzio subsequently contacted Berube regarding these outstanding charges on June 10 and June 12, 2013, reminding Berube that she had been provided with an expense reimbursement form and offering to “discuss further and assist in any way” that she could.[5] June 12, 2013 E-mail from Roxanne Jodzio to Faye Berube, Suppl. Aff. of Francis X. Dee, Ex. B (ECF No. 43-3). Berube responded to Jodzio that she did not “need you or anyone at UBS taking control of my financial responsibilities for me and consider this an invasion of privacy.” June 13, 2013 E-mail from Faye Berube to Roxanne Jodzio, ...


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