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Bubar v. Nordx

United States District Court, D. Maine

February 4, 2018

NORDX, Defendant



         Following a four-day trial, a jury found NorDx liable for whistleblower retaliation against its former employee Anne-Marie Bubar, awarding her $50, 000 in lost pay and benefits and $450, 000 in punitive damages. See Verdict Form (ECF No. 75); Amended Judgment (ECF No. 90). NorDx moves for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b) or, in the alternative, for a new trial pursuant to Federal Rule of Civil Procedure 59(a)(1)(A) or remittitur of damages pursuant to Federal Rule of Civil Procedure 59(e), see NorDx's Renewed Motion for Judgment as a Matter of Law, or, in the Alternative, Motion for New Trial on Plaintiff's Unsupported Whistleblower Retaliation Claim, or for Remittitur (“Defendant's Motion”) (ECF No. 84) at 1, and Bubar moves to amend the judgment pursuant to Rule 59(e) to add awards of front pay and prejudgment interest, see Plaintiff's Post-Trial Motion To Alter or Amend Judgment (“Plaintiff's Motion”) (ECF No. 83). For the reasons that follow, I deny NorDx's motion, grant Bubar's motion in part to the extent that I award prejudgment interest, albeit in the sum of $1, 635 rather than $3, 230, and otherwise deny it.

         I. NorDx's Post-Trial Motion

         A. Rule 50(b) Motion for Judgment as Matter of Law

         1. Applicable Legal Standard

         To succeed on a renewed motion for judgment as a matter of law, a party must demonstrate that “the facts and inferences are such that no reasonable factfinder could have reached a verdict against the movant.” Webber v. Int'l Paper Co., 326 F.Supp.2d 160, 165 (D. Me. 2004). The court must not “consider the credibility of witnesses, resolve conflicts in testimony, or evaluate the weight of the evidence.” Guilloty Perez v. Pierluisi, 339 F.3d 43, 50 (1st Cir. 2003) (citation and internal quotation marks omitted). Instead, the court must “view the evidence in the light most favorable to the nonmoving party, drawing all reasonable inferences in its favor.” McMillan v. Mass. Soc'y for Prevention of Cruelty to Animals, 140 F.3d 288, 299 (1st Cir. 1998) (citation and internal quotation marks omitted).

         A jury verdict should not be set aside as a matter of law “unless there was only one conclusion the jury could have reached.” Id. Specifically, the court's review “is weighted toward preservation of the jury verdict[, ]” which the court must uphold “unless the evidence was so strongly and overwhelmingly inconsistent with the verdict[ ] that no reasonable jury could have returned [it].” Rodowicz v. Mass. Mut. Life Ins. Co., 279 F.3d 36, 41-42 (1st Cir. 2002) (citation and internal quotation marks omitted). See also, e.g., Climent-García v. Autoridad de Transporte Marítimo y Las Islas Municipio, 754 F.3d 17, 20 (1st Cir. 2014) (“The tide runs strongly against a litigant seeking to overturn a jury verdict.”).

         2. Discussion

         To make out a case of whistleblower retaliation pursuant to the Maine Whistleblowers' Protection Act (“WPA”), 26 M.R.S.A. §§ 831-40, an employee must show that “(1) . . . [she] engaged in a protected activity; (2) . . . the employer took adverse employment action against [her]; and (3) . . . there was a causal connection between the two.” Brady v. Cumberland Cty., 2015 ME 143, ¶ 32, 126 A.3d 1145, 1156 (as corrected Mar. 8, 2016). Activities protected pursuant to the WPA include the following:

The employee, acting in good faith, . . . reports orally or in writing to the employer . . . what the employee has reasonable cause to believe is a violation of a law or rule adopted under the laws of this State, a political subdivision of this State or the United States[.]

26 M.R.S.A. § 833(1)(A).

         “Neither [Maine] nor federal law requires that the reported condition, activity, or practice actually be unsafe or illegal; under either scheme, an employee's reasonable belief that it crosses the line suffices, as long as the complainant communicates that belief to his employer in good faith.” Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261-62 (1st Cir. 1999) (emphasis in original).

         Pursuant to the three-step burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), once an employee has made out a prima facie case, the burden shifts to her employer to proffer “a legitimate, nonretaliatory reason for the [adverse action].” Id. at 262. If the employer does so, the burden then shifts to the employee to “adduce significantly probative evidence showing both that the proffered reason is pretextual and that a retaliatory animus sparked [her] dismissal.” Id.[1]

         NorDx moves for judgment as a matter of law on the bases that the jury lacked sufficient evidence to find that (i) Bubar made out a prima facie case of whistleblower retaliation, (ii) Bubar was fired as a pretext for whistleblower retaliation, or (iii) NorDx's conduct warranted punitive damages, which in any event are excessively high. See Defendant's Motion at 2-21. For the reasons that follow, NorDx fails to surmount the hurdle of demonstrating, as to any of these points, that “the evidence was so strongly and overwhelmingly inconsistent with the verdict[ ] that no reasonable jury could have returned [it].” Rodowicz, 279 F.3d at 41-42 (citation and internal quotation marks omitted).

         a. Prima Facie Case

         NorDx first contends that the jury lacked sufficient evidence to find that Bubar met either the first or third prongs of her prima facie case of whistleblower retaliation (that is, that she engaged in protected activity or that there was a causal connection between any such activity and her discharge from NorDx's employment). See Defendant's Motion at 3-12.

         i. First Prong: Activity Protected by WPA

         NorDx identifies three instances of conduct on which it presumes Bubar relied to demonstrate that she engaged in protected activity, see id. at 4-5:

         1. On October 17, 2012, Bubar emailed Human Resources (“HR”) Supervisor Tracy Cote, stating, “I am in a situation right now that I am feeling harassed and threatened. I need your guidance.” Plaintiff's Exh. 16; Transcript of Testimony of Anne-Marie Bubar (“Bubar Tr.”), Vol. I (ECF No. 79) at 46-47. Cote wrote back that she was unavailable that day and that Bubar should contact HR Director Maria Gagnon as soon as possible to discuss her concerns. Id. Bubar called Gagnon, leaving a message to return her call, which she described as “important[.]” Bubar Tr., Vol. I at 47. Gagnon never did so. Id. See also id. at 36-37.

         2. About six months later, in March 2013, Bubar met with Cote, after which Bubar wrote to her on March 25, 2013, “Thank you for the meeting, it did clear the air as I was feeling a bit pressured. Very helpful.” Dft's Exh. 232; Bubar Tr., Vol. II (ECF No. 80) at 6-7. Bubar testified that this pressure was from her supervisor, Shirley Lewis, and that she had “mentioned that multiple times.” Bubar Tr., Vol. II at 7.

         3. The next year, at a December 10, 2014, meeting with HR Partner Rachel Roy and NorDx employee Pat Burner, Bubar stated that she was feeling harassed by Lewis. Id., Vol. I at 33 & Vol. II at 43. Roy responded, “[N]o, she is a nice lady, she wouldn't be harassing you.” Id.

         NorDx underscores that, although Bubar reported to Cote in 2012 that she was being harassed and threatened, she never stated that she believed this conduct was occurring for an illegal reason, and, in following up with a voicemail to Gagnon, she merely stated that her call was “important.” Defendant's Motion at 5. It contends that, in 2013, Bubar simply reported to Cote that she was feeling pressured, and Cote addressed her concerns. See id. at 6. Finally, it asserts that Bubar never testified that, in complaining to Roy in 2014 that she was being harassed by Lewis, she was reporting that she believed Lewis was doing something illegal. See id. at 7. Indeed, NorDx notes, Bubar testified that she did not know how to answer the question whether she thought Lewis was harassing her in a way that violated NorDx's Employee Handbook and denied that Lewis called her names or made any comment that was sexual in nature or concerned her gender or national origin. See id. at 8-9; Bubar Tr., Vol. II at 46-47.

         NorDx argues that there was no evidence from which a reasonable jury could conclude that Bubar harbored the requisite subjective belief that the harassment of which she complained was illegal or, if she did, that any such belief was objectively reasonable. See Defendant's Motion at 9-10. It contends that both the Law Court and the First Circuit have found that no reasonable belief existed in cases in which the illegality was “much more plausible than [in] the case at hand.” Id. at 10-12 (discussing Galouch v. Dep't of Prof'l & Fin. Regulation, 2015 ME 44, 114 A.3d 988, Bard v. Bath Iron Works Corp., 590 A.2d 152 (Me. 1991), and Higgins).

         Nonetheless, as Bubar counters, see Plaintiff's Opposition to Defendant's Renewed Rule 50 Motion, Motion for a New Trial, and Motion for Remittitur (“Plaintiff's Opposition”) (ECF No. 88) at 4-10, the jury had sufficient evidence to find that she subjectively believed that the harassment that she had reported was unlawful and that her belief was objectively reasonable.

         NorDx terminated Bubar's employment effective February 18, 2015, when she was 66 years old and had taken short-term disability leave that had ended approximately five months earlier, following which she had provided doctor's notes barring her performance of phlebotomy indefinitely effective October 29, 2014, and permitting her to perform phlebotomy only one hour per week effective January 9, 2015. See Plaintiff's Exhs. 51, 60, 66; Bubar Tr., Vol. I at 6-7, 84, 87, 102-03. There was evidence, including the following, from which the jury reasonably could have found that Bubar subjectively believed that the reported harassment was based on age and/or disability discrimination and that this belief was objectively reasonable:

         1. Bubar had received very positive performance evaluations for the first 25 years of her employment, see Bubar Tr., Vol. I at 7, was considered a role model in phlebotomy skills, see id. at 41, and was never disciplined prior to the year 2008, see id. at 13, 129.

         2. Bubar was “harassed by Shirley Lewis for a long time.” Id., Vol. II at 46. For example, on numerous occasions, Lewis asked Bubar when she was going to retire. See id., Vol. I at 11-12; see also id., Vol. II at 47 (Lewis “multiple times asked me when I was going to retire[, ]” making Bubar “wonder why does she keep asking me that? . . . I am not ready to retire.”).

         3. Bubar felt harassed by Lewis's repeated questioning as to when she was going to retire. See id., Vol. II at 69.

         4. Even though Bubar was a “very good” and “conscientious” worker, Lewis asked a much younger employee, in his early 20s, to check her work and see if she made mistakes. Id., Vol. I at 32-33.

         5. Bubar did not believe that Lewis treated her fairly when she received a two-day suspension without pay for something that this younger employee did all the time. See id. at 58-59.

         6. Victoria Babb, a former Group Leader at NorDx, testified at trial that Lewis had favorites, favored younger people at times, could be tough or not, depending on the person, and did not like Bubar.

         7. Bubar felt pressured by Lewis after she suffered a work-related back injury in December 2012. See id. at 47-49; Plaintiff's Exh. 18. An outside entity, WorkWell, concluded that Bubar had a permanent restriction against drawing blood in awkward positions. See Plaintiff's Exh. 18. Following a team meeting in March 2013, NorDx approved the restriction, and Cote suggested that Bubar apply for FMLA leave if need be as a result of her back injury. See id.; Bubar Tr., Vol. II at 8. Bubar testified that her “FMLA situation[, ]” not her harassment by Lewis, was resolved at that time. Id.

         8. Bubar was approved for a short-term disability leave from June 16, 2014, through September 15, 2014, following a traumatic incident in which a nursing home reported her of suspected elder abuse following a failed blood draw in April 2014, as a result of which Lewis and Burner informed her that NorDx was suspending her from work pending an investigation. See id., Vol. I at 64-67, 84-85. She was cleared of wrongdoing, although she learned only informally from another employee at an employee awards event that her suspension from work had ended. See id. at 67.

         9. Bubar's return to work was rough. Her preexisting anxiety condition was exacerbated to the point that, despite increases in medication dosages, she had difficulty performing her job and felt she was being singled out and her work was being scrutinized more closely than that of others. See id. at 68-69, 73-74. She had developed a mental block against drawing blood. See id. at 79. Asked if she felt Lewis supported her through her difficult situation, she testified: “I didn't feel like I got any support. I just felt like I was a criminal. I had caused a problem.” Id. at 69. With Bubar's doctor's support, she went on approved short-term disability leave on June 16, 2014. See id. at 74.

         10. Prior to September 15, 2014, Bubar returned to work two days a week with a restriction against any performance of phlebotomy. See id. at 78-79, 84-85. She increased her hours to 32 per week as of September 15, 2014. See id. at 85. She provided NorDx a doctor's note stating that, effective October 29, 2014, she was not able to perform phlebotomy indefinitely. See id. at 87.

         11. NorDx informed Bubar that it could not accommodate that restriction because phlebotomy was an essential function of her job. See id. at 98-99. During Bubar's December 10, 2014, meeting with Roy and Burner, Roy outlined three options: Bubar could work with her healthcare provider to increase her ability to perform phlebotomy on a gradual basis, apply for a NorDx position that did not require phlebotomy as an essential function, or terminate her employment with NorDx. See id. at 100-01. She chose the first option, see id. at 100, and submitted a doctor's note permitting her performance of phlebotomy beginning January 9, 2015, for a total of one hour per week in an outpatient setting, see id. at 103.

         12. Bubar sent an email to Roy on January 11, 2015, inquiring whether Roy had received a voicemail she had left her. See id. at 105; Plaintiff's Exh. 64. Roy responded that she had received Bubar's doctor's note, was catching up on voicemails left the prior week, and did not recall Bubar's voicemail. See id. Roy never followed up with a call to Bubar. See Bubar Tr., Vol. 1 at 106.

         13. Bubar did not feel that NorDx followed its own policy regarding reports of harassment in response to her October 17, 2012, email to Cote, see id. at 33, 46-47, her follow-up voicemail to Gagnon shortly afterward, see id. at 36-37, or her December 10, 2014, report ...

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