ORDER ON DEFENDANT'S MOTION FOR SUMMARY
HORTON JUSTICE, SUPERIOR COURT
State of Maine has filed a Motion For Summary Judgment on
plaintiff Michelle Young's Complaint for retaliation in
violation of the Maine Whistleblower Protection Act
("MWPA") (Count I); creation of a hostile work
environment (Count II); and retaliation under the Maine Human
Rights Act ("MHRA") (Count III). Plaintiff opposes
defendant's Motion For Summary Judgment as to Counts I
and III, but does not oppose the Motion as
to Count II.
argument was held on June 1, 2017. Based on the parties'
arguments, the summary judgment record, and the reasons
discussed below, the court grants defendant's Motion for
Summary Judgment as to Count II of plaintiffs complaint, and
denies defendant's Motion for Summary Judgment as to
Counts I and III.
was employed on a seasonal basis as a park ranger at Mt. Blue
State Park every summer from 2007 through 2014, usually from
late May to late August. In the summer of 2014, a new
customer representative assistant was hired to work at Mt.
Blue State Park. Prior to August 7, 2014, this new employee
engaged in conduct toward plaintiff that she found strange,
but not threatening. (Def's Supp'g S.M.F. ¶ 37.)
On August 7, 2014?, however, the new employee offered
plaintiff some almonds and made a sexual comment.
(Id. ¶ 43.) Following this incident, plaintiff
reported some of the employee's conduct, including the
sexual comment of that day and a previous incident where the
employee put his arms around plaintiffs neck, to her
supervisor, Bruce Farnham, the park manager. (Id.
receiving the plaintiffs complaint, Farnham contacted his
supervisor and human resources personnel who promptly
investigated plaintiffs allegations. (Id.
¶¶ 81-82, 91-93.) In Farnham's email reporting
the incident, he stated that Jason Cuthbertson, the head
ranger at the Park, made a comment to Farnham "that he
could see a sexual harassment situation developing and that
[plaintiff] made some questionable comments to £the new
employee] as well." (Ex. 1 to Farnham Dep.) Farnham
writes that he was not aware of the specific comments, but
that plaintiff informed him Cuthbertson was present on the
occasion when the new employee grabbed plaintiffs neck.
the investigation, the Department of Agriculture,
Conservation and Forestry ("Department") issued a
written reprimand to the employee plaintiff had complained
about. (Def's Supp'g S.M.F. ¶ 97.) Immediately
after the written reprimand, Daryl Touchette, a Human
Resources Manager for the State's Natural Resource
Service Center conducted a one-on-one training session with
the employee about the State's workplace harassment
policy. (Id. ¶ 104.)
testified that after she reported the claim, Farnham's
tone towards her changed and Farnham would avoid her. (Young
Dep. 168.) She opined that Farnham likely avoided her because
he was uncomfortable about what happened and that it was an
uncomfortable situation. (Id.) She testified that
Farnham stopped his periodic practice of coming by to where
she was working for informal conversation. (Id. at
168-169.) Plaintiff further testified that when she told
Farnham she was going to take vacation time after her
complaint, he seemed relieved. (Id. at 174.)
Plaintiff speculates that Farnham was relieved because he
wouldn't have to deal with plaintiffs situation while she
was on vacation. [Id.)
August 19, 2014, Farnham wrote plaintiffs seasonal
performance evaluation in which he assessed her performance
as satisfactory and meeting expectations, and recommended her
to receive a merit increase. (Def.'s Supp'g S.M.F.
¶ 108.) Gary Best, then acting regional manager, and Ron
Hunt, then acting director of operations, also signed and
approved plaintiffs performance evaluation in January 2015.
(Id. ¶ 109.)
the off-season, Farnham and Cuthbertson would discuss who
would be returning on staff for the upcoming summer.
(PL's A.S.M.F. ¶ 26.) Cuthbertson and Farnham worked
together consistently for the last eight years. (Id.
¶ 25.) Early in the following year, often in February,
the Department sent letters to employees who are on seasonal
layoff asking them to respond and indicate whether they
intend to return to their jobs for the next season.
Def.'s Supp'g S.M.F. ¶ 111.) As a seasonal
employee, Plaintiff received such letters each year from 2008
to 2015. (Id. ¶ 112.) Generally, the letters
did not include a proposed schedule for the upcoming season.
(See Farnham Dep. 38.) Indeed, Farnham testified
that over the years he may have sent out a proposed schedule
with the letters to seasonal employees on one or two
instances, but otherwise did not do so. (Id. at 40.)
2015, the first page of the letter plaintiff received, dated
February 4, 2015, was identical in form to the letters she
had received in prior years. (Def.'s Supp'g S.M.F.
¶ 119.) The second page of the letter, however, included
a proposed schedule for the upcoming season and was sent only
to plaintiff and another seasonal ranger who also was a
teacher. (Id. ¶ 129; see Farnham Dep.
60-61).) The letter offered plaintiff the opportunity to
return to work for the 2015 season, specified that her season
would be 13 weeks long, would start on May 31, 2015, and end
on August 29, 2015. (Id. ¶ 120.) The proposed
schedule was not sent to other park employees on seasonal
testified that the proposed schedules were sent in 2015
because the year before the other seasonal ranger who worked
as a teacher suddenly said she would not be available for
most of the first three weeks due to her teaching schedule.
(See Farnham Dep. 41-42.) Usually Farnham would make
a schedule accommodation for a week or possibly two where the
employee worked some evenings, worked the weekends, and used
some accumulated vacation time that resulted in an adjustment
of only a day or two. (Id. at 42.) In 2014, however,
the other seasonal ranger who worked as a teacher had to take
three weeks off at the start of the season and only wanted to
work a couple days during that time. (Id.) Farnham
further testified that he believes he told the other seasonal
ranger towards the end of the season that her schedule could
become a problem. (Id.) He testified that the other
seasonal ranger was aware of the problem because she had a
friend who faced the same problem a few years ago.
(Id. at 42-43.)
plaintiff received the February 4, 2015 letter, she already
knew she would not be able to work during school hours for at
least the first two weeks of June 2015, and possibly longer,
because the last day of school is determined based on the
number of snow days occurring during the school year.
(Def.'s S.M.F. ¶ 121.) Nevertheless, plaintiffs
response to the letter indicated she would be able to work
the full season as specified in the letter. (Id.
testified that she called Farnham in the spring of 2015 to
tell him that while she indicated she could work the full
season in the letter, "I can't obviously work it
because I'm in school...." (Young Dep. 160.)
Plaintiff testifies that she told Farnham she could probably
work on "June 9th or beyond that" and that she was
"willing to come in after seven hours and work an
eight-hour shift, I begged him, I'm willing to do
whatever it takes... to keep this job." (Id.)
Farnham asked plaintiff ...