Searching over 5,500,000 cases.


searching
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.

Charette v. St. John Valley Soil and Water Conservation District

United States District Court, D. Maine

August 17, 2018

DIANE M. CHARETTE, Plaintiff,
v.
ST. JOHN VALLEY SOIL AND WATER CONSERVATION DISTRICT, et al., Defendants.

          ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

          GEORGE Z. SINGAL UNITED STATES DISTRICT JUDGE.

         Before the Court is a Motion for Summary Judgment by Defendants St. John Valley Soil and Water Conservation District, Duane Theriault, and Kurt Coulombe (ECF No. 67) (“Joint Motion”) and a Motion for Summary Judgment by Defendant David Potter (ECF No. 68) (“Potter's Motion”). After careful review of the record and the parties' briefs, the Court GRANTS IN PART and DENIES IN PART the Joint Motion and GRANTS IN PART and DENIES IN PART Potter's Motion, for the reasons outlined below.

         I. LEGAL STANDARD

         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. See 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) (quotation marks and internal ellipsis 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). “However, summary judgment is improper when the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side.” Morales-Melecio v. United States (Dep't of Health and Human Servs.), 890 F.3d 361, 368 (1st Cir. 2018) (quotation marks omitted).

         II. FACTUAL BACKGROUND

         Having reviewed the record and the statements of material fact in accordance with Local Rule 56, “the Court constructs the following narrative from the undisputed facts as well as the disputed material facts viewed in the light most favorable to the non-movant, ” here, Charette. Ramsdell v. Huhtamaki, Inc., 992 F.Supp.2d 1, 5 (D. Me. 2014).[1] The St. John Valley Soil and Water Conservation District (the “District”) is a state agency created by statute, with the purpose of, among other things, carrying out preventive and control measures with respect to flood prevention and the conservation, development, utilization, and disposal of water within the district, and of providing information, education, and technical assistance needed to help protect and enhance natural resources and to use them wisely.[2] The District occupies space in an office leased by the United States Department of Agriculture, Natural Resources Conservation Service (“NRCS”) in Fort Kent.[3]

         The District is governed by a five-member, volunteer Board of Supervisors, who are either elected or appointed by the Commissioner of the Maine Department of Agriculture, Conservation and Forestry (“DACF”), and an Associate Supervisor appointed by the Board of Supervisors. During 2015 and 2016, the District's Board of Supervisors consisted of Defendant David Potter, Defendant Duane Theriault, Defendant Kurt Coulombe, John “Gene” Desjardin, Peter Smith, and an Associate Supervisor, Thomas Schneck.[4] At all relevant times, Potter was self-employed as the sole employee of his Fort Kent farm. Theriault was self-employed on the farm he owns with his father in St. Agatha. Coulombe was employed as an equipment operator by a contractor in Madawaska. The Board of Supervisors elected Potter as Chair of the Board in March 2014. The Board generally meets on a monthly basis. Board meetings are open to the public.[5] Unless otherwise noted, the District had a sole employee, a District Coordinator, during the periods at issue.

         In 2014, after the previous District Coordinator left the position, the Supervisors undertook a hiring process. Although the exact mechanics of the hiring process and how many people were offered the position is ambiguous, it appears that the District's first choice after interviews was a woman who ultimately rejected the offer. (Joint Stipulated Record (“SR”) 216-17; 285-86.)[6]Eventually, when Plaintiff Diane Charette was under consideration as a potential hire, Potter was opposed to hiring her because he believed she lacked qualifications. (SR 286.) Theriault was also opposed to hiring her because he thought she was not the right person for the job. (SR 376.) Smith believes that Potter had wanted to hire what Smith considered to be a less-qualified man. (SR 347-48.) In the end, however, the District hired Charette as District Coordinator as of August 26, 2014. As District Coordinator, Charette's job responsibilities included acting as receptionist for the District office; attending and reporting at monthly Board meetings; working closely with the Board to implement the District's Long Range Plan; carrying out the directives of the Board of Supervisors as conveyed at its meetings; communicating weekly with the Board Chair; performing office administrative and business management duties; carrying out administrative functions such as maintaining minutes of the Board meetings, reporting monthly activities, and keeping balance sheets and profit/loss statements; attending other meetings as approved by the Board Chair; developing media relations and producing press releases; communicating with District members and recruiting new members; engaging in fundraising activities associated with specific projects and programs; maintaining eligibility for federal grants; and other projects and assignments as assigned by the Board. Charette's job responsibilities also included providing office support to NRCS staff pursuant to an Operational Agreement, working on certain projects for the NRCS pursuant to a Contribution Agreement, and complying with USDA security requirements, which included obtaining a LincPass. A LincPass is required, in connection with security clearance, to access the U.S. government's computer systems. Previous District Coordinators Casey Cote and Sigrid Houlette regularly attended monthly Board meetings; reported to the Board members on various issues, including projects in progress; took notes; and prepared the Board meeting minutes for the public record. Cote, who was District Coordinator from May 2008 until December 2010, has stated,

An important part of my job was to report directly to the Board members at the meetings about District business. I took notes during the meetings and prepared the minutes for the public record. It was a central part of my duties as District Coordinator to attend Board meetings and meet with the Board Chair as my supervisor.

(SR 411.) Houlette, who was District Coordinator from February 2011 until April 2014 has stated,

As the District Coordinator, I attended the monthly meetings of the Board of Supervisors. At these meetings, I reported to the Board members on various issues, including the projects I was working on and the progress I had made on tasks that the Board has assigned to me at the prior month's Board meeting. I also took notes during the meetings and prepared the minutes for the public record. Attending Board meetings and communicating with the Board Chair at and between meetings was an integral part of my job as District Coordinator.

(SR 412.)

         Charette received a copy of, and read, the District's Personnel Policy and the District Coordinator job description before she started working for the District. Pursuant to the District's Personnel Policy, Charette was an employee at-will, subject to a six-month probationary period that could be extended. Charette worked a flex schedule of thirty-two hours per week, which allowed her to choose the specific hours she worked. Although the Board is responsible for hiring and general long-term supervision of the District Coordinator, the Board Chair is responsible for supervising the District Coordinator on a daily or weekly basis, as needed.

         During the majority of her time as District Coordinator until she went out on a leave of absence, Charette was the District's sole employee. During her first two weeks on the job, however, Anthony Tardif, who had served the District as a temporary employee between District Coordinators, helped orient her to the office. During this period, Charette noticed a difference between the way Potter interacted with Tardif and how Potter interacted with her. (SR 172.) Potter was more patient with Tardif, and his tone of voice with Tardif was softer than it was with Charette. (Id.)[7] Theriault and Coulombe did not work with, supervise, or have workplace interactions with Tardif while he was orienting Charette to the office at the start of her employment.

         Potter was Charette's direct supervisor, but his in-person contact with her was generally limited because he continued to own and maintain his farm. The frequency of their in-person office interactions varied from a couple of times a week to every other week, with each encounter ranging in duration from five or ten minutes to an hour-and-a-half. Potter otherwise communicated with Charette by email and phone. Theriault and Coulombe were present in the District office only occasionally and for brief periods of time because they also maintained their separate occupations. Charette had in-person contact with all of the Supervisors during monthly Board meetings.[8]

         On a day in October or November 2014, Potter visited the District office and Charette asked him about obtaining updated office equipment. Potter sat at Charette's desk and informed her that the previous Board Chair (Craig Troeger, a man) and the previous District Coordinator (Houlette, a woman) had a very close relationship, which he insinuated was probably closer than it should have been. Potter said that he and Charette would not have that kind of relationship and angrily informed her, “you're not going to get your way, not even if you dance naked on the table.”[9] (SR 128.) Charette was shocked and highly offended by the comment and described her reaction as follows: “[W]hat I felt was I was female and I was not going to be getting my way, and it wasn't just that I wasn't going to get my way for one issue, I was not going to get my way for any issues. . . . I was insulted.” (SR 129.) Robert Bills, then a District Conservationist for the NRCS in the Fort Kent office, was present when Potter made the “dance naked” comment, noticed that Charette was taken aback by the comment, was himself shocked by the comment, and thought that Charette should speak about it with Seth Jones, another District Conservationist in the Fort Kent office. (Id.)[10]

         On a different day prior to the November 2014 Board meeting, Potter asked Charette to research a state surplus property program to find out how it worked. Specifically, Potter asked Charette to research the program, get the paperwork started for the District's possible participation, and follow up with Dave Rocque, a liaison for the District with the DACF. The District did not have any projects planned or underway to use equipment it could purchase through the surplus property program. At this point, Charette did not think that any of the tasks Potter asked her to perform were unlawful. Potter did not ask Charette to try to purchase property through the program or to sell any property obtained through the program.

         The District is authorized by statute to buy and sell agricultural and engineering machinery and equipment as well as to “make available” such equipment to “land occupiers within the district . . . as will assist such land occupiers to carry on operations upon their lands” in a manner consistent with the District's mission. 12 M.R.S.A. § 6(3)-(4). The parties contest what specific surplus property program Charette, Potter, or the other Supervisors had in mind in November 2014 and during their subsequent discussions concerning surplus equipment, and the record is not entirely clear on this issue. However, the surplus property program administrated by the State Agency for Federal Surplus Property creates a variety of conditions and restrictions on the District's ability to acquire, retain, and resell surplus equipment. (See Statement of Material Facts (ECF No. 66) ¶ 31.)

         Due to some confusion on her part and bureaucratic impediments, Charette was initially unable to obtain a “donee number, ” which would be required for the District to participate in the surplus property program. However, she was in the process of filling out the paperwork for the District to participate at the time of the Board's November meeting. In researching the program, she learned that it was possible for a qualified entity to purchase equipment worth $40, 000 to $50, 000 for as little as $2, 000 to $3, 000, or equipment worth $40, 000 to $80, 000 for as little as $10, 000 to $15, 000, and she may have shared this information with Potter. The District had approximately $85, 000 or $90, 000 available in a savings account.

         At the November 12, 2014, monthly Board meeting, the Supervisors asked Charette about the status of her research into the surplus property program, but she did not have any new information to provide. Potter stated that the District could make money by acquiring equipment at a reduced price though the surplus property program and then reselling it. The discussion turned to questions about how long the District would have to keep property it purchased before reselling it and whether Supervisors could personally buy any resold equipment from the District. Theriault stated that he wanted a dump truck for himself and that “it would be a great deal.” (SR 124.)

         Desjardins then stated that the District had learned in the past through communications between the previous District Coordinator and Rocque that it was illegal to purchase equipment through the surplus property program without a purpose for it other than reselling. Desjardins also described his experience with a different organization that had purchased property through the surplus property program and had been told to stop buying property with the purpose of reselling or had been advised that it is unlawful to resell property before the donee has held the property for at least 18 months; Desjardins said something to the effect of “we've done this in the past until we were told that we had to stop doing it.” (SR 124, 168-69.) At the time, Charette misunderstood and believed that Desjardins was stating that the District had previously been told to stop reselling surplus equipment. Potter responded to Desjardins, “then we're going to continue doing it until they tell us to stop, ” presumably meaning that the District would pursue the purchase of surplus equipment for resale until told not to do so. (SR 124.) Charette responded, “I am not going to do anything illegal” or “no, I'm not going to do it, it's illegal, I'm not going to do that, you can't make me do anything illegal.” (SR 125, 385.) Potter became agitated and said, “I suppose now you're going to start telling me how to do my job.” (SR 127.) Charette responded, “[N]o, I'm just going to say how I'm going to do my job.” (Id.) Potter replied in part, “[W]ell, you have to do it, even if it's illegal.” (SR 386.)[11]

         Before the meeting adjourned, Potter and the other Supervisors instructed Charette to continue researching the District's potential participation in the surplus property program. Charette believed that what was being proposed regarding the surplus property program was illegal and that she was being asked to participate in illegal activity herself. At the conclusion of the meeting, Charette thought that Potter “was extremely angry, very agitated.” (SR 172.) The November Board meeting minutes, which were drafted by Charette, do not make any mention of a discussion concerning surplus property. (See SR 105-06.)

         The next morning, on November 13, 2014, Potter came in to the District office in the same mood as when he had left the Board meeting the night before, angry and agitated. He told Charette that he had been looking at home for the resignation letter of the former District Coordinator so that he could respond to her request for unemployment benefits. Potter then discovered that District files had been moved and the file cabinets rekeyed during a recent office renovation. Charette tried to explain to Potter that he had taken his files home before the renovation, but Potter believed she was being evasive and had moved his files without his knowledge or permission. He began yelling and angrily accused her, with his fists clenched, of taking his files.[12] Bills was present and Potter also became angry at him about the files. Potter later found the resignation letter he was looking for at home, but he did not apologize to Charette for his outburst.[13]

         Over some period of time between the November 13th “missing files” incident and the Board meeting on January 14, 2015, Charette told all of the Supervisors about Potter's conduct regarding the files and the “dance naked” comment. When she told Coulombe, his reaction was that he did not want to deal with it, but that her complaints should be addressed by the Board. (SR 132, 217.) When she told Theriault, he said that he did not know how to handle the situation, but that he would look into it. Coulombe told Potter that Charette had approached him with her concerns.[14] At some point, Potter talked with Theriault about wanting to resign in part because he was unhappy at himself for his outburst regarding the files.

         From the very beginning of her employment, Charette felt that Potter did not like women based on his tone towards her, her sense that there was very little she could do that he would find acceptable, and how he interacted with Tardif compared to how he interacted with her. She had been in business for a long time and he was the first man she had come across who made her feel that way. Potter had spoken to Charette in a stern and aggressive tone of voice since the beginning of her employment. After the November Board meeting, however, he became more hostile. Each time they interacted, Potter was confrontational, belligerent, and arrogant. His hostile tone was serious enough to alarm and frighten Charette; she became more withdrawn and would cower around him. Potter also began intensely scrutinizing her work by asking her questions and reviewing documentation, her timesheets, her tasks, and how she was communicating.

         At unspecified times, Charette was told by Desjardins, Rocque, and the prior Board Chair Troeger, that Potter had “serious problems with women.” (SR 143-44.) Specifically, Desjardins told her that Potter had “been hard on” the prior female District employees and that this had led him to believe that Potter had problems with women. (SR 143, 173.) Rocque told her that he believed Potter had issues with women because the female District employees kept leaving. (SR 173.) Troeger told Charette that Cote had complained about Potter and that Troeger had told the Supervisors to only have contact with Cote during Board meetings. (SR 143-44.) Beyond this information, Charette did not know the specific nature of Potter's “problems” with the prior employees. (Id.)

         Desjardins had been a Supervisor for the past ten years and had seen Potter treat women differently than men, in his estimation. (SR 247.)[15] Houlette had complained to Desjardins that she was “harassed” by Potter in that Potter was “picking on her.” (SR 260.) Annette DeCroix, a previous administrative assistant with the District, had also complained to Desjardins that she was being “harassed” by Potter but did not provide any specifics and Desjardins did not investigate further. (Id.) Desjardins also understood that Cote had complained to Troeger that Potter “would ask I need this and this and this.” (Id.) In general, Desjardins understood that Potter had been “pushing, ” that is, being demanding of, the previous female District employees. (SR 247.)[16]

         Desjardins was concerned about the way Potter treated Charette during Board meetings; he was very rude and would shout numbers at her. Potter also frequently referred to Charette as being a probationary employee, which Desjardins understood to be a threat that her days with the District were numbered. (SR 246, 262.) Desjardins and Potter themselves did not get along and Potter would often ignore him. For Desjardins, there was “not much to like” about Potter. (SR 259.)

         Smith had been a Supervisor since the time Charette was hired. Smith “leaned towards” thinking that Potter has problems with women based on his history of conflict with District female employees. (SR 355.) Smith observed that Potter “was always on [Charette's] case, ” telling her that she was not doing things as they should be done and repeatedly reminding her that she was a probationary employee. (SR 347.) Desjardins and Smith both believed that Charette was getting a “bum deal” and that Potter was micromanaging her to the point that she was becoming stressed. (SR 354.)

         Typically, either Bills or Jones was present in the NRCS office or at Board meetings when Potter interacted with Charette. Jones thought that Potter could be loud and pushy but did not observe any conduct or interactions between Potter and Charette that he thought were inappropriate. Bills considered Potter's normal style to be aggressive and abrupt-he sometimes used a loud voice, and he could have a challenging, stern, dismissive, or accusatory tone with people, including with Bills. Bills observed that Potter was professional with Jones and usually with the other Supervisors. Bills also observed that Potter never challenged Tardif in the same way that he challenged Charette. From Bills' perspective, Potter's hostile and accusatory tone towards Charette was serious enough to alarm and frighten her.

         Indeed, Charette began experiencing anxiety due to her interactions with Potter. She was afraid to be alone in the office with him and requested to Jones and Bills that one of them be in the office with her at all times. On three occasions (presumably when Potter was present), Charette had to leave the office to go to the restroom because she could not handle the stress and needed time alone to cry and regain her self-control. On another occasion, Charette called Desjardins at his home and informed him, crying, that she was going to leave her job because Potter had emailed her that he would be coming in to the office. Desjardins called Rocque, and Rocque immediately called Charette. Rocque asked her not to leave, told her that “they” were aware of the situation, and told her that it would be taken care of. (See SR 639-40.)

         On November 17, 2014, Charette attempted to contact Potter to have him sign her paycheck but received no response to her calls and emails. Charette then contacted Coulombe, who was able to reach Potter right away. Coulombe told Charette that Potter said he could not make it in to the office, so Coulombe signed her paycheck. Charette felt that Potter had purposefully refused to sign. It is possible that Potter signed Charette's paycheck on subsequent occasions, as did Coulombe.

         Potter was absent from the December 9, 2014, monthly Board meeting for unexplained reasons. At this meeting, the Board discussed the surplus property program “as a means to make money for the District.” (SR 108.) Charette said that she would continue to look into the program and volunteered to get more information from a contact at the Madawaska town office. Charette no longer objected to researching the surplus property program because she understood at the time of the December meeting that the District was considering using surplus equipment for two District projects. Charette also wanted to bring in her contact from Madawaska to explain the program's legalities.

         On December 11, 2014, Charette sent an email to Potter, Theriault, and Coulombe explaining that she was having “major issues” with the existing word processing program on the District laptop and requesting an upgrade. (SR 54.) Charette had access to two computers in the District office: a District laptop and an NRCS desktop. At the September Board Meeting, the Board had voted that all District work was to be done on the District laptop and that any work done on the NRCS computer would need to be backed up to the District's laptop. (SR 176, 766.) Potter forwarded Charette's email to Schneck with the question, “[t]hink we should put this in the 2015 budget?” (SR 53.) Schneck responded with his support for the proposal. Potter then replied: “I agree that we should update the software on our laptop next year. But, I see no reason why the work can't be done now on the NRCS computer. It[']s right there in front of her. What am I missing?” (Id.) Schneck replied: “I am in total agreement with you. Next year would be good to update the system.” (Id.) Charette did not bring the matter up further. The Board's budget for the next year began on January 1, 2015, a few weeks after the email exchange.[17]

         During the period that Charette was District Coordinator, she worked from home twice due to snow storms. The Personnel Policy at the time did not explicitly prohibit the District Coordinator from working from home, but there also was no formal policy regarding working from home. Charette did not seek permission from the Board or let Potter or any of the other Supervisors know that she was going to be working from home. Prior to both days she worked from home, Jones had informed Charette that there was a storm coming and that the NRCS would possibly close the office. Charette responded to Jones that she was working on the District website, which was a major project, and would therefore work from home on the District laptop rather than travelling in to the office and risk having to return home early. On one of the days Charette worked from home, the NRCS ended up keeping the office open; on the other day, the office closed early at 11:30 a.m.

         On December 29, 2014, Potter angrily confronted Charette about working from home. Charette responded by explaining that she had only worked from home on two days during snowstorms, that she was unaware it was impermissible, and that she would not do so in the future without permission. On December 30, 2014, Potter circulated a “memo” by email to Charette and the other Supervisors “as follow-up to our discussion yesterday.” (SR 733.) The memo stated:

Diane. I just wanted to restate that working at home and including these hours when submitting payroll hours is not acceptable and you are, therefore, required to stop this practice immediately.
For clarification: As you know, you are an hourly employee not a salaried employee and you were specifically hired for office coverage. As a new employee, you are still within the six month probationary period.
The Board of Supervisors does try to keep our Personnel Policies clear and up to date and we will include this matter on [the] January agenda. I appreciate your cooperation as we improve the clarity of our Personnel Policies.

(SR 734.)

         Charette responded by email to Potter and the other Supervisors in relevant part as follows:

I am a bit surprised to receive this email from you regarding my staying home and working. Your memo makes it appear as though I am working from home on a regular basis. As discussed yesterday, this is not the case. Since starting my employment here in August I have spent two days working from home and both of these days were snow days. I had a lot of work to do and realized the evening before the snowstorm that my workload was quite high and I did not want to lo[]se an 8 hour day, so I brought my laptop home with me in case the weather would not permit me to come in. On both these days, as I informed you, I worked on recreating the pages to our website and taking a tutorial on youtube on how to do this. I informed you then that I am aware that working from home on regular days is not part of my job description and I have never done this. The discussion we had was concerning snow days. As there is currently nothing in the personnel policy that states how snow days are to be handled you stated that this would be discussed and voted on at our next meeting and this is on the next meeting agenda. I have no problem with this, as I would like clarification on how to handle snow days. As far as your reminding me that I am in my probationary period, I find this very threatening and uncalled for . . . I am aware that as I have been only working here for 4 months that there will be times when I will need direction on how to do things. I would appreciate this correction being done in a manner that promotes training and education and not in a threatening manner. I would be very thankful to receive advice and information that would make my job easier and in a tone of voice that promotes a positive working environment.

(SR 735.)

         On January 2, 2015, Potter replied by email, including the other Supervisors, as follows:

Diane: First and foremost my email was not intended to be threatening, but merely to state the fact that you are a new employee and to document that the issue was discussed. As your immediate supervisor, I found it to be very bad judgment to claim this privilege (working from home) without first seeking permission, irrespective of what the personnel policies say or don't say. I disagree that the context of our conversation was exclusive to snow days. In fact our conversation had as much to do with NRCS office closures around holidays. You will need to verify that the office was closed by Seth [Jones] for “snow days” on the days you worked from home. This is so the Supervisors can keep the issue in context and make the best amendment to the policies.
As for your defensiveness regarding your performance, please remember some of what you accomplished is the result of the Supervisor[s'] decisions and direction I and others provided. Let's give credit where it[']s due. The Probationary Period allows you, the employee, I, your immediate supervisor and we, the Board of Supervisors the opportunity to decide if the person and the position are right for each other. Your email seems to suggest that you are not happy with the level of guidance you're receiving. As far as I know, you have unlimited access to me and the other Supervisors, but, unfortunately, the initiative to communicate needs to come from you because the rest of us are volunteers. This fact was made very clear during your interview.
The reality is that we are all still getting to know each other and we need to work together for the best interest of the organization and the people we serve. Realistically, six months probably is not enough given how infrequently we get to interact. I think things will get better.

(SR 736.)

         Charette could have made up any hours that she stayed at home because of snow by working in the office at other times. The Board had approved Houlette to work from home for some period of time on a trial basis because of a family situation. Houlette also worked from home on days when the NRCS office was closed during snow storms. On days that it was snowing but the office was open, Houlette reported to work in the office.

         On January 5, 2015, another NRCS employee, Chris Jones, forwarded to Seth Jones and Potter a December 11, 2014, email from Charette. The email was from her personal email address rather than her work email address. Apparently, Charette had received a work-related notification from Chris Jones addressed to her personal email address. Charette wrote in relevant part:

Would you be able to send these notifications to me at [her work email address] instead of Dave Potter. He forwards it to me, but for some reason he's been forwarding it to my home e-mail. You can forward any other info to me at this e-mail rather than to Dave.

(SR 52.) In a January 6, 2015 email addressed to Chris Jones, and including Seth Jones and the other Supervisors, Potter wrote in relevant part:

Did Diane provide you with her home email address and ask that communication be sent there? Or did she communicate with you via her home email address in the past? This is unacceptable. Please let me know. . . . I have never forwarded any [District] business communications to Diane's personal email, as she misrepresents in her email to you . . . It may have happened by mistake but, I don't think so. I'd like to clear up how you came to use Diane's personal email address for district business.

(SR 51.) There were no further communications from any party regarding this matter before Charette went on leave.

         On January 7, 2015, Potter approached Charette at her desk and sternly asked her where the applicants' files were for her position. He reminded her to be sure to retain all the applicant files because she was still on probation.

         On January 14, 2015, the Board held its regularly scheduled monthly meeting. Charette attended the meeting along with her then-attorney, Ted Smith, and her husband. At the start of the meeting, Attorney Smith asked to address the Board on Charette's behalf and made a brief statement that Potter had been sexually harassing Charette.[18] (See SR 252; 651-52.) Any further direct discussion of the issue was tabled until the end of the meeting.

         During the meeting, the Board discussed revisions to the Personnel Policy, a topic which was on the printed meeting agenda as “Personnel Policy Clarification(s).” (SR 620.) The revisions, which were moved and seconded by Theriault and Coulombe and adopted by the Board, included: clarifying that full-time employees, including probationary period employees, are expected to work in the office; adding a provision that the District Coordinator could work from home sixteen hours per year during authorized office closings; adding an Electronic Communications/Social Media policy; and removing a provision allowing non-probationary employees to take administrative leave based on the administrative leave granted to federal employees.[19] Potter also recommended a clarification to the Personnel Policy, moved and seconded by Theriault and Coulombe, that benefits are only available to permanent (i.e., non-probationary) full and part-time employees. The following relevant revisions were made to the text of the Personnel Policy, with additions underlined and deletions noted as such:

Hours/Place of Operation A permanent full time employee is expected to work at the place of business during the core office hours of 7:30 am to 4:30 pm, Monday-Friday, unless otherwise authorized by the District Board. This includes probationary period employees. Additional hours may be required for travel to meetings, conferences, etc., and will be duly compensated for.
. . .
Electronic Communications/Social Media The use of email, FAX and social media is a vital part of the District communication system. Its use must be done in an appropriate and respectful manner. All communications to the District's email, Facebook and other accounts are the property of the District. As such, each Supervisor may access these accounts at any time to monitor activity. Usernames and passwords shall be made available to all Supervisors and changes shall be immediately reported to the Board Chairman. Employee use of the District's Facebook page and any other social media is restricted to two hours per week. This does not apply to email. Employee use of personal email and social media while at work is prohibited.
EMPLOYEE BENEFITS
The St. John Valley SWCD is committed to providing quality and up to date benefits to all its permanent, full and part-time employees when at all possible. The District will provide Social Security Contributions, Workers' Compensation Insurance and State of Maine Vehicle Liability, for work related use only, at no cost to all paid employees. Unfortunately, at this time, employees shall be responsible for their own health, life, dental, disability, and automobile insurance, and that of any dependents, as well as their own retirement package, beyond that of Social Security.
In addition, the following benefits apply to permanent, full-time and part-time employees only and not to any employees during a probationary period: (administrative leave)delete, annual leave, bereavement leave, compensatory time, family and medical leave, holidays, jury duty, leave without pay, military leave, and sick leave. Permanent part-time employees will be compensated on a pro-rated basis.
(Administrative Leave)delete section All employees will follow the same Administrative Leave as the federal employees who work in the same building. Administrative Leave may be granted for inclement weather conditions, national, state, or local emergencies or other situations as deemed appropriate or necessary.

(SR 36-37, 38.)

         At the time of the January Board meeting, Potter was considering recommending an extension of Charette's probationary period. As a probationary employee, Charette was not entitled to receive holiday pay, as stated in the Personnel Policy. (See SR 38, 40.) However, Charette had submitted her hours to get paid for holidays and had been paid for Labor Day, Columbus Day, Veterans Day, Thanksgiving, Christmas, and New Year's Day due to an oversight by the Board. When the Board discovered its mistake, they did not ask her to repay the money. If Charette had been entitled to holiday pay during her six-month probationary period she would also have been eligible for holiday pay on Martin Luther King, Jr. Day (January 19, 2015) and Presidents Day (February 16, 2015).

         During the January 14th Board meeting, the Board also addressed renewal of the Contribution Agreement with the NRCS. The Contribution Agreement in effect at the time was due to expire by June 2015 and a signed application to support a new Contribution Agreement had to be submitted by January 16. Under the existing Contribution Agreement, Charette had been working about ten hours per week for the NRCS reorganizing the office. Any new Contribution Agreement would have gone into effect in June 2015, and the NRCS would have paid approximately $5, 000 for Charette's work on special projects. This money would have contributed to Charette's salary if the Agreement had gone into effect, but the District had sufficient money in its savings account to cover her salary in full. Even if there was no Contribution Agreement in place, Charette still would have been able to work in the shared office space and answer phones and greet visitors for the NRCS under the separate Operational Agreement. Charette also had enough District work to fill her thirty-two hour work week. In general, the District Coordinator does not have to rely on working on projects for the NRCS to stay busy and has the ability and responsibility to generate her own work, beyond certain standard duties, by initiating ideas for District projects and implementing them. At the time of the January Board meeting, the NRCS was experiencing a reduced workload, but Seth Jones had told Charette there were tasks she was going to be working on later in the year for them.[20]

         Charette had worked extensively on the new Contribution Agreement and brought it and the application with her to the Board meeting. She did not previously have authority to sign the Agreement or the application on behalf of the District. Prior to the meeting, someone with the District told Charette that she would be given the authority to sign the application, [21] and her signature line was on the version she brought to the meeting. However, at some point during the meeting, Potter stated that she would not be given signing authority, struck her signature line from the application, and initialed the change, along with Theriault.[22]

         When the Supervisors proposed February 2nd for the next monthly Board meeting, Charette asked if they could choose another date because she had scheduled that day to attend an erosion control workshop and pick up her LincPass in Bar Harbor. Because the District laptop did not have an internet connection for some period of Charette's employment, she had to use the NRCS computer for anything requiring an internet connection, including sending emails. She also had a separate NRCS email account for communicating with NRCS staff as part of the work she did for them. The NRCS had allowed Charette to work on their computer without a LincPass, but they had told her that she needed to get a LincPass as soon as possible. Charette had received general approval to attend the erosion control workshop at the September 9, 2014 Board Meeting. (See SR 768.)

         The Supervisors suggested that Charette could not go pick up her LincPass on February 2nd because there was “not enough trust yet” (SR 653), presumably between the Supervisors and her, and because the Supervisors were unclear as to who would pay for her travel to Bar Harbor. The meeting minutes indicate that someone raised the question of whether the “NRCS [will] pay for Linc Pass” (SR 104), presumably referring to the cost of Charette's travel considering that there was no other cost involved in picking up the LincPass. Potter asked Seth Jones if the NRCS was willing to pay for Charette's travel and Jones responded that he was confident there would be no issue with the NRCS covering half the cost. The Board did not state that Charette would never be able to obtain a LincPass.[23]

         At some point during the January 14th meeting, the Board also requested that Charette provide the Supervisors with her passwords to the District's computer and online sites. Charette refused to provide them her passwords during the meeting because she was concerned that individual Supervisors would be able to access District files outside her presence and that files might be lost or otherwise compromised.

         At the meeting's conclusion, Attorney Smith announced that he planned to file a complaint of sexual harassment against the District and Potter and handed each Supervisor a letter with the subject line “Allegations of Harassment and Sexual Harassment.” The letter, directly addressed to Potter and signed by Attorney Smith, stated:

I have been retained and represent Diane Charette concerning issues and allegations of sexual harassment and harassment as defined in the St. John Valley Soil and Water Conservation District Personnel Policy as it pertains to her employment as District Coordinator.
My initial evaluation has revealed evidence of inappropriate conduct by you on more than one occasion causing a hostile or offensive working environment and interfering with Mrs. Charette's work performance.
Consideration will be given to the next steps necessary to prevent any and all harassment. This includes filing a complaint with the Maine Human Rights Commission against the District and individually against you, the Chairman of the Board[.]
You may wish to provide this notice to the District's liability insurer and your personal insurer to obtain legal representation.

(SR 13.) Attorney Smith also circulated a “Grievance Report, ” drafted by Charette, in which she detailed the incidents of alleged harassment described above.[24]

         In general, portions of the Board meeting were highly contentious. Theriault commented that Charette had “brought [her] bouncer, ” referring to her husband; Charette's husband called Potter “a fucking prick, ” threatened Theriault, and led Desjardins to believe that he might strike or grab Potter. (SR 145, 181, 252-53, 297, 375, 379-80, 426.) For the first time in their professional relationship, Theriault and Coulombe became hostile towards Charette and would not look at or speak to her. (SR 145.) Throughout the meeting, Potter mentioned approximately twelve times that Charette was a probationary employee.

         After the meeting, Coulombe refused to sign the new Contribution Agreement (or application), telling Charette that “because of this situation I no longer want to do this.” (SR 231, 653.) Potter subsequently refused to sign the application, in part because he was “reeling from the complaint.” (SR 320, 653.) Theriault also did not sign it. (SR 389.)[25]

         Charette had a severe panic attack on January 15, 2015; she thought she was having a heart attack, and her husband took her to the emergency room. The next day, she followed up with her primary care provider, Dr. Silwana Sidorczuk, who diagnosed her with situational anxiety due to her treatment at work and prescribed medication to treat her anxiety and panic attack. Dr. Sidorczuk removed Charette from work, initially for two weeks, but after that continuously until Charette's resignation. Dr. Sidorczuk believed that it was emotionally unsafe for Charette to return to work and be in contact with Potter.[26]

         After the January 14th meeting, Desjardins and Smith wrote a letter to Rocque, stating:

We are writing to tell you of recent events that have happened of concern in the District. As you know, the District has had difficulty maintaining district coordinators.
Earlier, Diane Charette was hired to fill a vacancy. Since very early in her working for the District, Mrs. Charette shared complaints with both of us and other members concerning statements and conduct by David Potter towards her. At our monthly meeting on Wednesday night, Mrs. Charette formally advised us of her harassment allegations without any details. Next week, we are supposed to hold a meeting to discuss the allegations in detail. We both request your presence at this meeting for guidance and oversight. Otherwise, we fear Mrs. Charette will not be treated fairly.
Secondly, there has been discussion about obtaining State surplus property so that it may be made available to our region's individuals. Is this appropriate?
Further, if the property is not used for a period of time, would this property be available for purchase ...

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.