United States District Court, D. Maine
DECISION AND ORDER ON DEFENDANT'S MOTION FOR
BROCK HORNBY, UNITED STATES DISTRICT JUDGE
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 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.
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.
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.” 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.
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.
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.
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. Def.'s SMF ¶ 43;
Pl.'s SMF ¶ 43; Faye Berube Dep. Tr. 192:15-20 (ECF
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. 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.
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).
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. 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, ...