Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Porietis v. Tradesmen International LLC

United States District Court, D. Maine

January 3, 2017

KIMIS A. PORIETIS, ET AL., Plaintiffs,



         Before the Court are Defendant's Motion for Summary Judgment (ECF No. 28) and Plaintiffs' Motion for Partial Summary Judgment (ECF No. 29). As explained herein, the Court DENIES both motions.


         Generally, a party is entitled to summary judgment if, on the record before the Court, it appears “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). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). An issue is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. A “material fact” is one that has “the potential to affect the outcome of the suit under the applicable law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993).

         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. Santoni v. Potter, 369 F.3d 594, 598 (1st Cir. 2004).

         Once the moving party has made this preliminary showing, the nonmoving party must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Triangle Trading Co., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (internal quotation marks and punctuation omitted); see also Fed.R.Civ.P. 56(e). “Mere allegations, or conjecture unsupported in the record, are insufficient.” Barros-Villahermosa v. United States, 642 F.3d 56, 58 (1st Cir. 2011) (quoting Rivera-Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34, 37 (1st Cir. 1993)); see also Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir. 2011) (“A properly supported summary judgment motion cannot be defeated by conclusory allegations, improbable inferences, periphrastic circumlocutions, or rank speculation.”). “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 for the moving party.” In re Ralar Distribs., Inc., 4 F.3d 62, 67 (1st Cir. 1993).

         District of Maine Local Rule 56 prescribes a detailed process by which the parties are to place before the Court the “material facts . . . as to which the moving party contends there is no genuine issue.” D. Me. Loc. R. 56(b). The Rule further requires each statement of material fact to be followed by a “record citation[] . . . to the specific page or paragraph of identified record material supporting the assertion.” D. Me. Loc. R. 56(f). Although Local Rule 56 does allow parties to indicate in response to a particular statement of fact that the statement “should be stricken, ” the party making such a request must still admit, deny, or qualify the statement of fact. D. Me. Loc. R. 56(e). Ultimately, in constructing the narrative of undisputed facts for purposes of summary judgment, the Court deems any statement with a supporting record citation admitted but “may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment.” D. Me. Loc. R. 56(f); see also 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 motion[.]”).

         The existence of cross-motions for summary judgment does not change the standard for constructing the undisputed facts.[1] Rather, the Court is required to “view each motion separately and draw all reasonable inferences in favor of the respective non-moving party.” Roman Catholic Bishop of Springfield v. City of Springfield, 724 F.3d 78, 89 (1st Cir. 2013).


         Tradesmen International, LLC (“Tradesmen”) is a Delaware corporation that maintains its corporate headquarters in Ohio and has an office in Portland, Maine. Tradesmen advertises itself as a full-service, construction labor support company that provides skilled labor to its clients, which are primarily construction companies located throughout North America. As of 2014, Frederick Orne was in charge of the Portland office and was the highest-ranking Tradesmen employee in the office.[2] Orne hired Plaintiff Kimis Porietis as a part-time recruiter on June 6, 2014. Orne also hired Plaintiff Michael LeDuc as a field representative on June 11, 2014. At the time of their hire, Plaintiffs acknowledged their receipt, review, and understanding of Tradesmen's Office Employee Manual, which sets forth the company's policies and procedures, including as they relate to unlawful discrimination, retaliation, and discrimination in the workplace. Plaintiffs also acknowledged their receipt, review, and understanding of Tradesmen's Zero Tolerance Workplace Harassment Policy & Procedures, which states that an employee can be discharged for making a false harassment complaint.

         On September 26, 2014, Orne offered Porietis complimentary admission passes to a strip club, in the presence of another male employee. Porietis declined the passes by telling Orne, “if my wife would return these, you're not going to like where she wants to put them, ” and that Orne “would not appreciate getting the cards back from [Porietis's] wife.”[3] (Deposition of Kimis A. Porietis (“Porietis Dep.”) (ECF No. 32) at 58-59.)[4] Orne seemed “shocked” by the refusal, but he did not discuss the issue further with Porietis. (Porietis Dep. at 59.) Unbeknownst to Porietis, Orne subsequently told LeDuc that Porietis was “a pain in the ass, ” “that we need to . . . find a way to get rid of him, ” and that Orne was going to cut Porietis's hours based on his refusal to accept the strip club passes. (Deposition of Michael LeDuc (“LeDuc Dep.”) (ECF No. 33) at 49-50.) Orne told LeDuc that Porietis said he refused the passes because “he was a Christian man and that he would never do such a thing, he would never hurt his wife.” (Id.) Orne also asked LeDuc to “spy” on Porietis and report back anything that Porietis might say. (LeDuc Dep. at 50.)

         On October 2, 2014, Orne met with Porietis and informed him that he would be reducing his hours. Orne stated that the reduction in hours was a reflection of a seasonal decline in Tradesmen's business.[5] At no point between being offered the strip club passes and having his hours reduced did Porietis tell Orne that he was going to make a complaint about the offer. Other than one female employee's stated concern to Porietis about Orne's suggestion to put strip club passes in field employees' paychecks, Porietis was not aware of any Tradesmen employees who felt offended or harassed by Orne's offering of the passes to other male employees.

         On October 3, 2014, Porietis contacted Tradesmen's then corporate counsel, Kristin Erenburg. He told her that Orne was not following proper procedures for processing new field employees at the Portland office and that Orne had offered him strip club passes. Specifically, Porietis told Erenburg, “I didn't think that [offering the passes] was correct behavior in a workplace for-that women would have to work around that, and-and that was I thought very unprofessional. I thought it was, you know, embarrass[ing] to the company.” (Porietis Dep. at 56.) Porietis also told Erenburg that he was going to contact the Maine Human Rights Commission concerning his belief that Orne had retaliated against him for refusing the passes by cutting his hours. That same day, Porietis did call the Commission, reported Orne's alleged retaliatory action, and filled out the Commission's intake form. Tradesmen investigated the strip club passes issue over the following week. During the investigation, Orne admitted that he had offered passes to Porietis and to two other male employees outside the office. Tradesmen disciplined Orne. The corrective action form detailing the discipline for this incident is dated October 16, 2014.

         During this period of time, Orne told LeDuc that he believed Porietis was filing a lawsuit about his alleged retaliatory action. Orne also reiterated to LeDuc over multiple conversations that Orne thought Porietis was a “troublemaker” because he did not accept the passes and that Orne wanted to “get rid of him.” (LeDuc Dep. at 55.) Erenburg also called LeDuc and asked him to report on Porietis, saying that she was in agreement with what she understood to be Orne's attempt to get rid of Porietis by cutting his hours because Porietis was a “problem.” (LeDuc Dep. at 62-63.)

         On October 15, 2014, Porietis, LeDuc, and another Tradesmen employee, Bernie Mailloux, represented Tradesmen at a job fair at a shopping mall in Bangor, Maine. Next to the table reserved for Tradesmen were two other job fair participants, one of which was the Bangor Police Department. The Bangor Police Department's table was approximately 18 to 24 inches away from Tradesmen's table and was staffed by two uniformed police officers.

         Mailloux drove Porietis part of the way to the job fair. Mailloux was not happy to attend the fair, and during the drive from Portland, he informed Porietis that he was only going to take him as far as Topsham, Maine, repeatedly screamed at Porietis about not being a “team player, ” and drove erratically. (Porietis Dep. at 79-83.) Porietis transferred from Mailloux's vehicle to LeDuc's in Topsham. Porietis told LeDuc during the remainder of the drive to Bangor that he had thought he was going to be killed due to Mailloux's erratic driving, that Mailloux is a “whack, [a] wing nut, ” and that Mailloux had been “really aggressive” with him. (Porietis Dep. at 84-85.)

         Later, at Tradesmen's table at the job fair, Mailloux, who is a “big guy, ” began aggressively and loudly berating LeDuc about standing in front of Tradesmen's table sign. (Porietis Dep. at 93-94; LeDuc Dep. at 101.) During this first altercation, Porietis “just rolled [his] eyes, like this is getting a little crazy, ” and LeDuc “blew it off because [he] was with” job applicants. (Porietis Dep. at 98; LeDuc Dep. at 101.) Mailloux left the table and LeDuc told Orne via text message that Mailloux was being negative, without realizing that Mailloux was included on the chain of text messages. Mailloux returned, informed LeDuc that he had seen the text about him, and was angry. LeDuc tried to discuss with Mailloux who would drive Porietis back to Portland after the fair because LeDuc had an appointment in Lewiston, Maine. Mailloux aggressively and profanely told LeDuc that he was going to have to take Porietis back to Portland at the end of the fair, stood over the table, “got in [LeDuc's] face, ” and started “spitting” and cursing at him. (Porietis Dep. at 105-06, 110; LeDuc Dep. at 103.) During this altercation, Porietis was afraid for LeDuc's safety and LeDuc “started to think [Mailloux] might even hit [him], because he was crunching his fists.” (Porietis Dep. at 110; LeDuc Dep. at 103.) Mailloux again stepped away from the table for some period of time, then returned, cursed at LeDuc and Porietis, told them he was leaving, and pushed the table. At least one job applicant was at the table when Mailloux first got in LeDuc's face and when Mailloux pushed the table.

         After Mailloux left, LeDuc called Orne and told him what had happened. LeDuc reported to Orne that the incident “was violent and [he] said [he] was also afraid [Mailloux] was going to hit [him].” (LeDuc Dep. at 105.) LeDuc was afraid to return to the office because of Mailloux's behavior and told Orne, “You better take care of it because I'm not going to go back in the office with a guy that's treating me like this, okay.” (LeDuc Dep. at 123.) Porietis was “really upset” about the incident and LeDuc was “upset and nervous and really scared” and felt “threatened” by Mailloux's behavior. (LeDuc Dep. at 106-07.) Neither Porietis nor LeDuc reported Mailloux's behavior to the police officers. Porietis returned to the Portland office later that day to drop off the job fair participant applications but went into the office with his wife to ensure that Mailloux did not “try to start anything.” (Porietis Dep. at 117.)

         On October 17, 2014, Porietis called the Portland office and indicated that he wanted to make an incident report about what happened at the job fair and that he “didn't feel safe with” Mailloux. (See Rule 30(b)(6) Deposition of Jeannie Woodall (“Tradesmen Dep.”) (ECF No. 34) at 68.) Erenburg subsequently called Porietis and he told her about the incident, referring to it as “the brawl at the mall.” (Porietis Dep. at 120.) Porietis also talked to Frank Muscarella, Tradesmen's Area Manager for New England, on the phone. Porietis told Muscarella about the incident, as well as perceived ongoing violations of company regulations occurring in the Portland office, and Muscarella told him that he was being placed on administrative leave pending a full investigation of the job fair incident. At some point, Porietis contacted the Bangor Police Department to see if the police officers or anyone else had reported anything.

         Meanwhile, in the days after the job fair, LeDuc repeatedly asked Orne if he had done anything about Mailloux, but Orne “kept putting [him] off.” (Aff. of Michael LeDuc (ECF No. 36-2) ¶ 6.) LeDuc also had two conversations with Erenburg about the incident. During the first conversation, LeDuc denied that anything serious had happened and told Erenburg that he did not “want to get involved.” (See Ex. 1 to Aff. of Kristin Erenburg (ECF No. 28-6), Page ID #s 177-78.) During the second conversation, however, he told Erenburg that in fact Mailloux had “freaked out” and that he had been afraid Mailloux was going to hit him. (Tradesmen Dep. at 82.) LeDuc also called Tradesmen's Human Resources Department to report the incident because he “was scared to come into the office [because of Mailloux] . . . [a]nd Orne didn't follow through with his agreement with [him] to take care of the problem, ” but he was referred back to Erenburg. (LeDuc Dep. at 134.)

         To conduct its investigation of the October 15, 2016, incident, Tradesmen spoke with or contacted Porietis, LeDuc, Mailloux, the job fair organizer, the job fair sponsor, and at least one of the Bangor police officers who manned the Police Department's table at the job fair.[6] Mailloux denied that there was any altercation or scene at the job fair. The job fair organizer and the job fair sponsor reported that they did not receive any complaints or hear about any inappropriate or unusual conduct occurring at Tradesmen's table from anyone at the mall or from any of the job fair participants.[7] The police officers did not see anything unusual occur at Tradesmen's table during the job fair. However, the officers may not have been manning the table at all times. (See Porietis Dep. at 130; LeDuc Dep. at 116-17; cf. Affidavit of Jason McAmbley (ECF No. 28-7); Affidavit of James Hassard (ECF No. 38-2).) Tradesmen did not contact any of the job applicants who had completed forms at Tradesmen's table.

         Based on the results of its investigation, Erenburg made the decision to terminate Porietis and LeDuc on October 22 or 23, 2014. Both men were terminated on October 23 for making a false report in violation of company policy.[8] Tradesmen subsequently issued employment-related paperwork indicating that each man had been terminated for filing a false report and made this paperwork available to, among others, persons in the Human Resources and payroll departments. Tradesmen also represented to the Maine Human Rights Commission that Porietis and LeDuc had been terminated for making a false report, and represented to Equifax, the Maine Department of Labor, and Labor Ready, a potential employer of LeDuc, that LeDuc had been terminated for misconduct.[9]

         LeDuc applied for unemployment benefits with the State of Maine Department of Labor, Bureau of Unemployment Compensation. Tradesmen disputed his claim on the basis that LeDuc had been terminated for misconduct. Following a fact-finding process, the Department found that Tradesmen had failed to show that LeDuc had engaged in misconduct and awarded him benefits. Tradesmen appealed, appeared at the appeals hearing through Muscarella, offered exhibits and witness testimony, and was allowed to cross-examine both LeDuc and Porietis. On January 8, 2015, the Department of Administrative Hearings affirmed the decision, stating, in part,

The employer has failed to meet its burden of establishing that the claimant engaged in either culpable misconduct or in a pattern of irresponsible behavior. The employer terminated the claimant for making a false report. The employer's investigation found that the claimant and his co-worker did not argue at all. The employer found that nothing of consequence occurred at the job fair whatsoever. However, the claimant credibly testified otherwise. The claimant and a witness to the event [Porietis] testified that an incident occurred between the claimant and the field representative that included yelling and cursing. Although parties at the event told the employer that they did not witness anything, that is not enough to conclude the argument never happened. The police officers at the table nearby could have been away from their area at the time. It was a job fair so it seemingly was not a quiet event to begin with. Moreover, the event coordinator could have been busy with something somewhere away from the claimant.
The employer did not have witnesses with first-hand knowledge of the event at the hearing to testify. The employer representative testified about what the claimant said to his supervisor and to their legal counsel. However, they were not available to testify. There is no record evidence to show the claimant's testimony was not credible. There is no evidence of any motive for the claimant to make a false claim. Therefore, [there] is ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.