GLADSTONE O. LEWIS, Plaintiff
GOODWILL INDUSTRIES OF NORTHERN NEW ENGLAND, Defendant.
ORDER ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY
E. Walker, Justice
the Court is Defendant Goodwill Industries of Northern New
England's ("Goodwill") motion for partial
summary judgment. Plaintiff Gladstone Lewis
("Lewis") has opposed this motion. The Court has
considered the parties' filings, and for the following
reasons, the motion is granted in part and denied in part.
following facts, which are material to the present motion,
are drawn from Goodwill's Statement of Material Facts and
are undisputed by Lewis. Lewis was hired by Goodwill in 2002
as a primary advocate, or, as his position was titled at the
time of his termination, a direct support professional. (Def
s. S .M.F. ¶ 1.) In that position, he was responsible
for providing support to adult residents in Goodwill's
residential program, primarily through aiding residents with
activities of daily living. (Id. ¶ 2.) Lewis
was placed on administrative leave beginning February 28,
2016, pending completion of an investigation into allegations
that Lewis had engaged in client abuse. (Id. ¶
4.) Following the investigation, Lewis's employment was
terminated effective March 3, 2016. (Id. ¶ 5.)
at least 2007, Lewis has also been a shared living provider
for Residential Resources Inc. (Id. ¶ 10.) In
this role, Lewis hosts an adult client in his home and
provides meals, transportation, and other support.
(Id.) In exchange for providing this service, Lewis
receives an annual stipend of $27, 000 and approximately $600
per month for room and board. (Id.) Since his
departure from Goodwill, Lewis has obtained employment as a
commissary representative, distributing commissary to
prisoners for approximately five hours per week.
(Id. ¶¶ 13-14.)
February 27, 2017, Lewis filed a complaint in this Court
against Goodwill for racial discrimination and retaliation.
Goodwill filed the present motion on May 9, 2018.
Goodwill's primary purpose in bringing this motion is to
request Lewis be precluded from pursuing a claim for front
pay and back pay due to his alleged failure to mitigate his
damages. Goodwill also requests Lewis's jury demand be
stricken because Lewis did not pay the jury deposit fee.
Standard of Review
judgment is appropriate if, based on the parties'
statements of material facts and the cited record, there is
no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. M.R. Civ. P. 56(c);
Dyer v. Dep't of Transp., 2008 ME 106, ¶
14, 951 A.2d 821. "A material fact is one that can
affect the outcome of the case. A genuine issue of material
fact exists when the factfinder must choose between competing
versions of the truth." Dyer, 2008 ME 106,
¶ 14, 951 A.2d 821 (internal citation and quotation
marks omitted). When deciding a motion for summary judgment,
the court reviews the evidence in the light most favorable to
the non-moving party. Id.
as here, the party with the burden moves for summary
judgment, the movant has the burden of establishing each
element of its claim without dispute as to any material fact
in the record. See Cach, LLC v. Kulas, 2011 ME 70,
¶ 8, 21 A.3d 1015. If the motion for summary judgment is
properly supported, the burden shifts to the non-movant to
respond with specific facts indicating a genuine issue for
trial. See M.R. Civ. P. 56(e). If the non-movant
fails to properly respond, the movant's factual
assertions will not be deemed admitted merely because of the
non-movant's failure to respond. Cach, LLC, 2011
ME 70, ¶ 9, 21 A.3d 1015. The movant must still properly
support each factual assertion with citation to the record
and therefore still has the burden of establishing the
absence of a genuine issue of material fact. M.R. Civ. P.
56(h)(4); Cach, LLC, 2011 ME 70, ¶ 9, 21 A.3d
brings this motion under the theory that Lewis has failed to
properly mitigate his damages, contending that Lewis has
willfully removed himself from the job market in the field of
direct support services during the pendency of this
litigation and has not made a reasonable effort to find
employment in any other field. (Def.'s Mot. Summ. J. 2.)
Consequently, Goodwill moves this Court to grant partial
summary judgment against Lewis by finding Lewis is precluded
from pursuing damages of back pay or front pay.
(Id.) Lewis's position is that he has diligently
applied for employment, but that a number of factors have
affected his employability, including his age, his time
constraints due to his position as a shared living provider,
and the fact that he was terminated from Goodwill following
allegations of abuse. (Pl's Opp'n to Mot. Summ. J.
employment discrimination case, front and back pay are
subject to reduction by the amount of "actual earnings
on another job during the pertinent period or by whatever
amount the victim could with reasonable diligence have earned
during that time." Me. Human Rights Comm 'n v.
Dep't of Corrs., 474 A.2d 860, 869 (Me. 1984)
(internal quotations and alterations omitted). In requesting
that Lewis be precluded from pursuing front and back pay as
damages, Goodwill essentially characterizes this issue as an
all-or-nothing analysis. (See Def.'s Mot. Summ.
J. 2.) However, a mitigation of damages analysis occurs on a
continuum and requires consideration of not only whether or
not a plaintiff attempted to mitigate their damages, but the
extent to which they made such an effort. Furthermore, if the
plaintiff did fail to some extent to mitigate their damages,
it is the defendant's burden "to prove facts to
enable the court to determine the appropriate
deduction." Me. Human Rights Comm 'n, 474
A.2d at 869. As the Law Court has repeatedly recognized,
defendant's burden of proving lack of diligence is not
satisfied merely by a showing that there were further actions
that plaintiff could have taken in pursuit of employment.
Rather, defendant must show that the course of conduct
plaintiff actually followed was so deficient as to constitute
an unreasonable failure to seek employment. The range of
reasonable conduct is ...