LORRAINE SCAMMAN et al.
SHAWS SUPERMARKETS, INC.
Argued: October 25, 2016
Jeffrey Neil Young, Esq., Carol J. Garvan, Esq., and Max I.
Brooks, Esq. (orally), Johnson, Webbert & Young, LLP,
Augusta, for appellant Lorraine Scamman et al.
Joshua Scott, Esq. (orally), Jackson Lewis P.C., Portsmouth,
New Hampshire, for appellee Shaw's Supermarkets, Inc.
Barbara Archer Hirsch, Esq., Maine Human Rights Commission,
Augusta, for amicus curiae Maine Human Rights Commission
Richard L. O'Meara, Esq., Murray Plumb & Murray,
Portland, for amicus curiae AARP
SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY,
Pursuant to 4 M.R.S. § 57 (2016), the United States
District Court for the District of Maine has certified to us
the following question of state law:
Is a claim for disparate impact age discrimination under the
Maine Human Rights Act, 5 M.R.S.A. § 4572(1)(A),
evaluated under the "reasonable factor other than
age" standard, see Smith v. City of Jackson,
544 U.S. 228 (2005); the "business necessity"
standard, see Maine Human Rights Comm'n v. City of
Auburn, 408 A.2d 1253 (1979); or some other standard?
answer the certified question as follows: "A claim for
disparate impact age discrimination pursuant to the Maine
Human Rights Act, 5 M.R.S. § 4572(1)(A), is evaluated
according to the 'business necessity'
The facts and procedural history are undisputed. Lorraine
Scamman and others similarly situated (collectively, the
plaintiffs) worked at various Shaw's Supermarkets
locations in Maine as full-time employees when their
employment was terminated in 2012 as part of a reduction in
force. Pursuant to a policy Shaw's implemented to carry
out the reduction in force, only full-time employees were
terminated. Because full-time employees were, on average,
older than part-time employees, the reduction in force
affected more older employees, including the plaintiffs, than
younger employees. Shaw's explained that "business
imperatives made it necessary ... to cut costs by at least
$550, 000 per week, company-wide, and the reduction in force
allowed it to do so."
After the plaintiffs filed complaints with the Maine Human
Rights Commission alleging age discrimination in violation of
the Maine Human Rights Act (MHRA), 5 M.R.S. §§
4551-4634 (2012),  a Commission investigator recommended that
the Commission find reasonable grounds to believe that
Shaw's had violated the MHRA by discriminating based on
age pursuant to a disparate impact theory. The investigator
applied the three-step, burden-shifting "business
necessity" framework to analyze the plaintiffs'
allegations. See Albemarle Paper Co. v. Moody, 422
U.S. 405, 425 (1975); Griggs v. Duke Power Co., 401
U.S. 424, 429-35 (1971); Me. Human Rights Comm'n v.
City of Auburn, 408 A.2d 1253, 1264-68 (Me. 1979). The
Commission voted unanimously to adopt the investigator's
analysis and recommendations.
The plaintiffs then filed a complaint in the Superior Court
(Androscoggin County), alleging unlawful employment
discrimination based on age pursuant to the
MHRA. See 5 M.R.S. § 4572(1)(A)
(2016). After Shaw's removed the case to the United
States District Court for the District of Maine, the court,
upon a joint request by the parties, certified to us the
question of what framework of proof applies to a claim of
disparate impact age discrimination brought pursuant to the
MHRA. See Scamman v. Shaw's Supermarkets, Inc.,
No. 2:15-cv-00295-JDL, 2016 U.S. Dist. LEXIS 10271 (D. Me.
Jan. 26, 2016).
Shaw's argues that a provision of the federal Age
Discrimination in Employment Act (ADEA), 29 U.S.C.S.
§§621-634 (LEXIS through Pub. L. No. 114-328),
known as the "reasonable factor other than age"
(RFOA) defense, should apply to MHRA claims of disparate
impact age discrimination. The parties agree that if the RFOA
defense applies pursuant to Maine law, Shaw's is entitled
to a judgment as a matter of law on the plaintiffs' age
discrimination claim. They also agree that if the Commission
was correct to apply the "business necessity"
framework instead, further discovery will be necessary to
develop the issues of (1) whether the reduction in force was
actually motivated by a business necessity and (2) if so,
whether less-discriminatory alternatives would have served
those business needs.
Acceptance of the Certified Question of State Law
We must first decide whether to accept and answer the
certified question. See 4 M.R.S. § 57;
Alexander, Maine Appellate Practice § 25.1 at
194 (4th ed. 2013) ("Consideration of the merits of a
certified question is not automatic").
[W]herever reasonably possible, the state court of last
resort should be given opportunity to decide state law issues
on which there are no state precedents which are controlling
or clearly indicative of the developmental course of the
state law because this approach (1) tend[s] to avoid the
uncertainty and inconsistency in the exposition of state law
caused when federal [c]ourts render decisions of [s]tate law
which have an interim effectiveness until the issues are
finally settled by the state court of last resort; and (2)
minimize[s] the potential for state-federal tensions arising
from actual, or fancied, federal [c]ourt efforts to influence
the development of [s]tate law.
Bankr. Estate of Everest v. Bank of Am., N.A., 2015
ME 19, ¶ 14, 111 A.3d 655 (quotation marks omitted).
"Title 4 M.R.S. § 57 authorizes, but does not
require, us to consider a certified question of state law
posed by a federal court in certain circumstances."
Id. ¶ 13 (quotation marks omitted);
see M.R. App. P. 25(a). We may consider the merits
of a certified question when three criteria are met:
"(1) there is no dispute as to the material facts at
issue; (2) there is no clear controlling precedent; and (3)
our answer, in at least one alternative, would be
determinative of the case." Everest, 2015 ME
19, ¶ 13, 111 A.3d 655 (quotation marks omitted).
In this case, all three requirements are met. First, the
material facts are undisputed. Second, there is no clear
controlling precedent- although we have made clear that the
business necessity test applies in MHRA disparate impact
cases based on sex discrimination, see City of
Auburn, 408 A.2d at 1261-68, we have not yet expressly
articulated what framework applies in age-based disparate
impact employment discrimination cases pursuant to the
MHRA. Finally, the plaintiffs agree that if the
ADEA's RFOA defense does apply, Shaw's is entitled to
a judgment as a matter of law. (A. 19.) In one alternative,