United States District Court, D. Maine
KAYLA MARIE COLE and TERESA L. GORDON, Plaintiffs,
STATE OF MAINE, OFFICE OF INFORMATION TECHNOLOGY, Defendant.
ORDER ON MOTION FOR SUMMARY JUDGMENT
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
former employees allege that their state-agency employer
harassed, discriminated, and retaliated against them in
violation of the Maine Whistleblowers' Protection Act,
Title VII, and the Maine Human Rights Act. Concluding that
there are genuine issues of material fact regarding the
claims of retaliation under the Maine Whistleblowers'
Protection Act, Title VII and the Maine Human Rights Act and
regarding the hostile work environment claims under Title VII
and the Maine Human Rights Act, the Court denies the state
agency's motion for summary judgment on those claims, but
the Court grants summary judgment on the disparate treatment
theory underlying the Title VII and Maine Human Rights Act
sex discrimination claims.
February 23, 2017, Kayla Marie Cole and Teresa L. Gordon
filed suit in this Court against the state of Maine Office of
Information Technology (OIT), alleging that the OIT, their
former employer, violated the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e, et seq, (Title VII), the
Maine Human Rights Act, 5 M.R.S. §§ 4551 et
seq. (MHRA), and the Maine Whistleblowers'
Protection Act, 26 M.R.S. §§ 831, et seq.
(WPA). Compl. (ECF No. 1). OIT answered the
Complaint on May 19, 2017, denying its essential allegations
and raising affirmative defenses. Answer to Compl.
(ECF No. 5). On August 11, 2017, OIT filed an Amended Answer.
Am. Answer to Compl. (ECF No. 11).
December 21, 2017, OIT filed a motion for summary judgment
and a statement of material facts. Def.'s Redacted
Mot. for Summ. J. (ECF No. 27) (Def.'s
Mot.); Def.'s Redacted Statement of Fact
(ECF No. 28) (DSMF). On February 9, 2018, Ms. Cole and Ms.
Gordon filed a response, opposing the motion, together with
an opposing statement of material facts with a statement of
additional material facts. Pls.' Resp. to Def.'s
Mot. for Summ. J. (ECF No. 38) (Pls.'
Resp.); Pls.' Opposing Statement of Material
Fact and Additional Facts (ECF No. 39) (PRDSMF; PSAMF).
On March 7, 2018, OIT filed a reply to the Plaintiffs'
response with a reply to Plaintiffs' statement of
material facts. Def.'s Reply to Resp. to Def.'s
Mot. for Summ. J. (ECF No. 42) (Def.'s
Reply); Def.'s Reply to Additional Statement of
Facts (ECF No. 43) (DRPSAMF).
STATEMENT OF FACTS
employed Kayla Cole first as a Business Analyst, and later as
a Project Manager in its Project Management Office (PMO).
DSMF ¶ 1; PRDSMF ¶ 1. OIT also employed Teresa
Gordon as a Business Analyst, where she performed all duties
of the position, including administrative duties for the
then-Director of the PMO (Male Employee). OIT promoted Ms.
Gordon to Project Manager in April 2015. DSMF ¶ 2;
PRDSMF ¶ 2.
employed Joshua Karstens during this time, but before
September 29, 2014, he worked as a project manager, and
neither Ms. Gordon nor Ms. Cole reported to him as their
supervisor. DSMF ¶ 3; PRDSMF ¶ 3. Between September
29, 2014, and October 8, 2015, Mr. Karstens became the Agile
Program Manager in the PMO. DSMF ¶ 4; PRDSMF ¶ 4.
During that time, Mr. Karstens was Ms. Cole's direct
supervisor and completed her performance evaluations. DSMF
¶ 5; PRDSMF ¶ 5. Over the same period, both Ms.
Gordon and Mr. Karstens reported to Male
Employee. DSMF ¶ 6; PRDSMF ¶ 6.
performance evaluation for the period September 2, 2014 to
February 8, 2015, Mr. Karstens gave Ms. Cole an overall
performance rating of “outstanding.” DSMF ¶
7; PRDSMF ¶ 7. On November 4, 2014, Ms. Cole emailed Mr.
Karstens, informing him that she felt disrespected by an
Instant Message he had sent and his statement that she was
“just as smart” as a male colleague, and in
response, Mr. Karstens stated that he thought Ms. Cole was
the top performer on the team. DSMF ¶ 8; PRDSMF ¶ 8.
Similarly, in a performance evaluation for the period of
February 9 to August 8, 2015, Mr. Karstens gave Ms. Cole an
overall performance rating of “exceeds
expectations.” DSMF ¶ 9; PRDSMF ¶ 9. Neither
evaluation by Mr. Karstens included any statements critical
of Ms. Cole's performance. DSMF ¶ 10; PRDSMF ¶
10. In September 2014, Mr. Karstens nominated Ms. Cole to be
Employee of the Month. DSMF ¶ 11; PRDSMF ¶ 11. In
September 2015, Mr. Karstens was part of the panel that
promoted Ms. Cole to the position of Agile Project Manager.
DSMF ¶ 12; PRDSMF ¶ 12.
October 8, 2015, OIT promoted Mr. Karstens to the position of
Director of the Business Process Management Office (BPM).
DSMF ¶ 13; PRDSMF ¶ 13. Between October 8, 2015,
and February 16, 2016, Male Employee and Mr. Karstens were
peers, and both Ms. Gordon and Ms. Cole reported directly to
Male Employee. DSMF ¶ 14; PRDSMF ¶ 14.
September 1, 2015, Ms. Gordon and Male Employee were also
partners in their own business called Agile Wave. DSMF ¶
65; PRDSMF ¶ 65. Between May and October 2016, Ms. Cole
performed work for Agile Wave. DSMF ¶ 66; PRDSMF ¶
66. On September 3, 2015, Ms. Gordon told Mr. Karstens that
she and Male Employee were planning to leave OIT to start
their own business. DSMF ¶ 15; PRDSMF ¶ 15. Ms.
Gordon also told Mr. Karstens that she and Male Employee
could not leave without him, and that once the venture was
underway, Mr. Karstens would have a position at Agile Wave.
DSMF ¶ 16; PRDSMF ¶ 16. However, Mr. Karstens
declined the offer to join Ms. Gordon and Male Employee in
their proposed business venture. DSMF ¶ 17; PRDSMF
¶ 17. As evidenced by these interactions, Ms. Gordon did
not have an issue with Mr. Karstens until sometime after
September 3, 2015. DSMF ¶ 18; PRDSMF ¶ 18.
The Pega Enterprise Agreement
Pega Enterprise Agreement is an $8 million sole source
contract negotiated “confidentially” by Jim Smith
and Doug Averill. PSAMF ¶ 156; DRPSAMF ¶ 156. Jim
Smith knew in August 2015 that Doug Averill's employment
with Pegasystems Inc. was not in accordance with the contract
between the state and Pegasystems nor compliant with the
state procurement policy. PSAMF ¶ 157; DRPSAMF ¶ 157.
Mr. Karstens, Mr. Smith, and Ms. Perkins knew on October 23,
2015 that Mark Lutte, Director of Purchases, said the Pega
Enterprise Agreement did not get signed off or seen by
Purchases as required. PSAMF ¶ 158; DRPSAMF ¶ 158.
there is an extension amendment for an OIT contract for more
than $10, 000, it is treated like a sole source contract, and
must be approved by the State Procurement Review Committee.
Amendments in excess of $3 million must be reviewed by the
Attorney General's office. PSAMF ¶ 159; DRPSAMF
¶ 159. The State Procurement Review Committee did not
sign off on the Pega Enterprise Agreement. PSAMF ¶ 160;
DRPSAMF ¶ 160. In Ms. Cole's and Ms. Gordon's
view, the Pega Enterprise Agreement did not go through the
proper procurement process and the circumstances surrounding
it were inappropriate and unlawful. PSAMF ¶ 161; DRPSAMF
¶ 161. Ms. Cole and Ms. Gordon raised concerns about the
lawfulness of the Pega Systems contract with Mr. Karstens
directly on November 10, 2015, and Ms. Gordon raised the
issue previously as well. DSMF ¶ 105; PRDSMF ¶ 105.
During Ms. Gordon's and Ms. Cole's February 22, 2016
meeting with Pat Beaudoin, HR Director, regarding issues with
Mr. Karstens, they reported to Ms. Beaudoin that employees of
the PMO were being asked to use a software tool obtained
under a contract they did not think had gone through the
right process and that was illegal. DSMF ¶ 97; PRDSMF
¶ 97. Ms. Gordon and Ms. Cole further reported that they
attended a meeting on November 10, 2015 with Mr. Karstens in
which they and a contractor were being pressured to
“push” the Pega contract and sell licenses to
agencies even if it did not feel like a good
DSMF ¶ 89; PRDSMF ¶ 89. Ms. Beaudoin did not
mention Ms. Cole's and Ms. Gordon's alleged concerns
about OIT's contract with Pega Systems to Mr. Smith or to
anyone else. DSMF ¶ 31; PRDSMF ¶ 31.
Interactions between Mr. Karstens, Ms. Cole, and Ms.
December 2, 2015, Ms. Cole attended an offsite holiday party
at a bowling alley with a group of male and female coworkers,
including Mr. Karstens. DSMF ¶ 19; PRDSMF ¶ 19.
According to Ms. Cole, during the outing, Mr. Karstens was
showing the group an x-ray of his knee because there was an
item in between his legs showing up on the x-ray and he was
telling people that is how big his penis was. DSMF ¶
20; PRDSMF ¶ 20. During the bowling outing, Mr. Karstens
asked several people, including Ms. Cole, to take a picture
of him posing. DSMF ¶ 21; PRDSMF ¶ 21. Ms. Cole
took a picture with her cellphone of Mr. Karstens posing in a
sexually suggestive manner. DSMF ¶ 21; PRDSMF ¶
21. Ms. Cole showed the picture to her attorney but did not
show it to anyone in Human Resources. DSMF ¶ 22; PRDSMF
¶ 22. Mr. Karstens denies he ever made comments or jokes
about his penis. DSMF ¶ 186; PRDSMF ¶ 186.
Employee left State employment on February 8, 2016. DSMF
¶ 27; PRDSMF ¶ 27. On February 16, 2016, Jim Smith
sent a general announcement to OIT employees that Mr.
Karstens had been asked to assume “management
responsibility for both BPM and PMO; Ms. Gordon and Ms. Cole
received this email on February 17, 2018. DSMF ¶
28; PRDSMF ¶ 28. The Chief Information Officer of OIT,
Jim Smith, was out of state on vacation during the week of
February 15, 2016. DSMF ¶ 29; PRDSMF ¶ 29. On
February 17, 2017, HR Director Pat Beaudoin called Mr. Smith
and told him about Ms. Gordon's and Ms. Cole's report
of the alleged bar incident that occurred two years prior;
she also told him about their complaints about a hostile work
environment and that they felt Mr. Karstens had been treating
them unfairly. DSMF ¶ 30; PRDSMF ¶ 30.
February 19, 2016, Mr. Karstens held his first staff meeting
as the PMO Director, with approximately ten to fifteen people
in attendance, both male and female, including Ms. Gordon and
Ms. Cole. DSMF ¶ 32; PRDSMF ¶ 32. During the
meeting, Mr. Karstens expressed concern about complaints he
had received regarding unprofessional behavior within the
group, including employees whispering and talking about each
other. DSMF ¶ 34; PRDSMF ¶ 34. During the meeting,
Mr. Karstens raised his voice and told the Plaintiffs that
everyone would be held accountable. DSMF ¶ 34; PRDSMF
¶ 34. Mr. Karstens told the group that their divisive
behavior needed to stop. DSMF ¶ 35; PRDSMF ¶ 35. He
also stated that each person was starting with a clean slate
at that point but would be held accountable for his or her
behavior and performance moving forward. DSMF ¶ 36;
PRDSMF ¶ 36. According to Ms. Cole, Mr. Karstens told
the group that they were immature and unprofessional. DSMF
¶ 37; PRDSMF ¶ 37. Ms. Cole felt that Mr. Karstens
was being hostile toward the entire group. DSMF ¶ 38;
PRDSMF ¶ 38. Ms. Cole also felt that Mr. Karstens was
singling out individuals who were asking questions, including
male employee Kirk H. DSMF ¶ 39; PRDSMF ¶ 39. At
the meeting, Mr. Karstens also advised the group that Deputy
Director Cassandra Perkins would now be their direct
supervisor, and that Ms. Perkins would report to him. DSMF
¶ 33; PRDSMF ¶ 33.
OIT meetings attended by Ms. Cole with Mr. Karstens included
three to twenty men and women. DSMF ¶ 145; PRDSMF ¶
145. According to Ms. Cole, Mr. Karstens would get red in the
face, raise his voice, and ball his fists at those meetings.
DSMF ¶ 146; PRDSMF ¶ 146. According to Ms. Cole,
Mr. Karstens directed his anger at everyone in the room. DSMF
¶ 147; PRDSMF ¶ 147. According to Ms. Cole, Mr.
Karstens “called her out” and directed his
criticism toward her during six or seven meetings occurring
over the course of about six months. DSMF ¶ 148; PRDSMF
Ms. Cole's and Ms. Gordon's Reports to Management
about Mr. Karstens
about February 10, 2016, Ms. Gordon contacted OIT's Chief
Technology Officer and expressed concerns about Mr. Karstens
becoming Ms. Cole's supervisor following Male
Employee's departure from OIT. DSMF ¶ 23; PRDSMF
¶ 23. The Chief Technology Officer advised Ms. Gordon to
report her concerns to Human Resources. DSMF ¶ 24;
PRDSMF ¶ 24. Ms. Gordon called Human Resources on or
about February 11, 2016, and spoke with Human Resources
Generalist Tammy Sturtevant. DSMF ¶ 25; PRDSMF ¶
25. Ms. Gordon and Ms. Cole reported concerns about Mr.
Karstens supervising them, and reported an incident that
allegedly occurred after hours at a bar in Hallowell two
years earlier involving Ms. Cole and Mr. Karstens. DSMF
¶ 26; PRDSMF ¶ 26.
Sturtevant's recorded recollection of her phone call with
Terry Gordon on February 15 or 16, 2016 says that Ms.
Gordon's voice was “shaky like she was upset”
and that Ms. Gordon had a “very serious concern”
about Mr. Karstens, how sexual gestures he made towards Ms.
Cole in the past were affecting the work environment, and
that Mr. Karstens was complaining about Ms. Cole's work
and belittling her in meetings. PSAMF ¶ 162; DRPSAMF
February 17, 2016, Ms. Beaudoin informed Mr. Smith about
“a sensitive matter” involving Mr. Karstens.
PSAMF ¶ 163; DRPSAMF ¶ 163. On February 18, 2016 at
9:04 a.m., Ms. Gordon informed Mr. Karstens she was home
sick. PSAMF ¶ 164; DRPSAMF ¶ 164. On that same day,
Ms. Beaudoin spoke on the phone with Ms. Gordon. PSAMF ¶
165; DRPSAMF ¶ 165. Ms. Beaudoin's notes include
“she didn't report it in the first place because
she thought she would be punished” and “bullying
her” and “I'm nervous for her” and
“he has a temper hit a table at one time.” PSAMF
¶ 165; DRPSAMF ¶ 165. Ms. Beaudoin told Ms. Gordon
not to go to work the next day. PSAMF ¶ 166; DRPSAMF
February 22, 2016, Ms. Gordon and Ms. Cole met with HR
Director Beaudoin and reported the following issues regarding
Mr. Karstens. DSMF ¶ 72; PRDSMF ¶ 72. Ms. Cole and
Ms. Gordon reported that on March 14, 2014, at an after-hours
business/social event, Mr. Karstens made unwanted sexual
advances on Ms. Cole, including groping, putting his hand
inside the back of her pants and asking her to accompany him
to a hotel room. Neither Ms. Gordon nor Ms. Cole reported
this incident to Human Resources or management before
February 2016. DSMF ¶ 73; PRDSMF ¶ 73. Mr. Karstens
denies he sexually assaulted Ms. Cole in March 2014. DSMF
¶ 184; PRDSMF ¶ 184.
Cole also reported that she had taken pictures of Mr.
Karstens posing at two events, which showed Mr. Karstens
posing in a sexually suggestive manner. DSMF ¶
74; PRDSMF ¶ 74. Mr. Karstens refused to answer
questions about whether he was intoxicated on March 14, 2014,
instead invoking his Fifth Amendment rights under the United
States Constitution. DSMF ¶ 185; PRDSMF ¶ 185.
Cole and Ms. Gordon reported that Mr. Karstens nominated Ms.
Cole as Employee of the Month in September 2014 and had no
issues with her performance then. DSMF ¶ 75; PRDSMF
¶ 75. Ms. Cole and Ms. Gordon reported that Ms. Cole was
promoted to Project Manager in February 2015 and that Mr.
Karstens stated that he was responsible for her promotion.
DSMF ¶ 76; PRDSMF ¶ 76. They also reported that Mr.
Karstens complained to Ms. Gordon about Ms. Cole's
performance after Ms. Cole was promoted. DSMF ¶ 77;
PRDSMF ¶ 77.
Cole and Ms. Gordon reported that in the summer of 2015, Mr.
Karstens spoke with Ms. Cole about concerns that she was
getting too friendly with a contractor. DSMF ¶ 78;
PRDSMF ¶ 78. They further stated that in early September
2015, Mr. Karstens called Ms. Cole into a room and gave her a
verbal warning for giving someone “attitude.”
DSMF ¶ 83; PRDSMF ¶ 83. Ms. Cole and Ms. Gordon
reported that Mr. Karstens changed the project manager on one
of the projects without discussing it with the team and put a
project in “warning” status. DSMF ¶ 81;
PRDSMF ¶ 81. They also reported that Ms. Cole and Ms.
Perkins had had a disagreement, and Mr. Karstens was pushing
Ms. Cole to have coffee with Ms. Perkins to “clear the
air.” DSMF ¶ 82; PRDSMF ¶ 82.
also reported that Mr. Karstens would “drill” Ms.
Cole with questions at meetings but did not
“drill” other scrum masters. DSMF ¶ 84;
PRDSMF ¶ 84. They reported that Mr. Karstens was angry
because Ms. Cole came up with the right answers in meetings.
DSMF ¶ 85; PRDSMF ¶ 85. The Plaintiffs further
reported that Mr. Karstens raised his voice and clenched his
fists in a meeting. DSMF ¶ 86; PRDSMF ¶ 86. They
reported that Mr. Karstens would not make eye contact with
Ms. Cole at meetings. DSMF ¶ 96; PRDSMF ¶ 96. They
also reported that Ms. Gordon told Ms. Cole not to talk in
meetings because she felt Mr. Karstens would get upset when
Ms. Cole made suggestions. DSMF ¶ 87; PRDSMF ¶ 87.
Cole and Ms. Gordon reported that in contrast, Male Employee
did not have any issues with Ms. Cole's performance at
the time. DSMF ¶ 79; PRDSMF ¶ 79. Ms. Cole and Ms.
Gordon reported that Ms. Gordon started writing emails on
behalf of Ms. Cole because Ms. Cole could “do no
right” in Mr. Karstens' eyes. DSMF ¶ 80;
PRDSMF ¶ 80.
Cole and Ms. Gordon reported that in October 2015, Mr.
Karstens asked Ms. Gordon if she wanted to go to Panera Bread
for lunch with him. DSMF ¶ 88; PRDSMF ¶ 88. They
reported that in December 2015, males and females from the
OIT group, including Mr. Karstens, attended an off-site
bowling event, during which Karstens made a joke about his
penis to the group. DSMF ¶ 90; PRDSMF ¶ 90.
Cole and Ms. Gordon reported to Ms. Beaudoin that during a
meeting of the OIT group on February 19, 2016, Mr. Karstens
stated: “if you are going to be divisive, there is no
place for you here.” DSMF ¶ 91; PRDSMF ¶ 91.
They also reported that during the meeting, Mr. Karstens said
he was going to hold each person accountable. DSMF ¶ 92;
PRDSMF ¶ 92. They reported that during the meeting, Mr.
Karstens was upset and emotional. He “paced the room,
” was “red in the face, ” and clenched his
fists. DSMF ¶ 93; PRDSMF ¶ 93. They reported that
during the meeting, Mr. Karstens told everyone that they
would start with a “clean slate.” DSMF ¶ 94;
PRDSMF ¶ 94.
Cole and Ms. Gordon also reported to Ms. Beaudoin that there
was tension among the Project Management Office, the Business
Process Management Office, and Applications Development. DSMF
¶ 95; PRDSMF ¶ 95. Ms. Cole and Ms. Gordon further
reported that Mr. Karstens was trying to take away Ms.
Cole's direct reports and move them to the BPM office.
DSMF ¶ 98; PRDSMF ¶ 98.
Cole and Ms. Gordon reported another incident to Ms. Beaudoin
on February 22, 2016. Ms. Beaudoin's notes from the
meeting do not indicate the parties to whom each statement in
her notes refers, but read: “sexual touch me-put hand
the back of my pants. I tried to get away. Leaned in and hard
on me . . . get a motel room. . . I said no, you're
married three kids . . . he leaned on me. . . I said no . . .
He was getting jealous . . . escalated . . . He kept drilling
her . . . TG said you're clearly getting upset, red
faced. JK raised his voice beet red clenching his fist . . .
He didn't like the way we were moving forward. It was
Kayla's idea he didn't like it. . . If KC said
something he would get upset . . . paced the room red in the
face clenching his fists. Shaking . . . He's
aggressive-TG scared. He was angry. TG I think he is
threatened by Kayla because she knows her stuff. He makes it
a hostile environment. Concerned about retaliation. It's
stressful. My heart starts to race. Pacing, red faced,
clenching his fists.” DSMF ¶ 99; PRDSMF ¶
99. At the end of the meeting, Ms. Beaudoin said she would
speak to the CIO, Jim Smith; Ms. Beaudoin's notes
indicate she spoke to Mr. Smith on February 17,
2016. DSMF ¶ 100; PRDSMF ¶ 100. Ms.
Cole never reported Mr. Karstens' behavior to Mr. Smith,
Male Employee, or Human Resources before the beginning of
2016. DSMF ¶ 149; PRDSMF ¶ 149.
February 24, 2016, at a regularly scheduled one-on-one
meeting, Mr. Smith informed Mr. Karstens of the complaints
made against him by Ms. Gordon and Ms. Cole. DSMF ¶
103; PRDSMF ¶ 103. Mr. Karstens had no knowledge before
February 24, 2016, of Ms. Gordon's and Ms. Cole's
complaints against him. DSMF ¶ 104; PRDSMF ¶ 104.
Neither Ms. Cole nor Ms. Gordon has any knowledge of when Mr.
Karstens learned of their complaints to Human Resources about
him. DSMF ¶ 106; PRDSMF ¶ 106; DSMF
¶ 107; PRDSMF ¶ 107.
Time and Attendance Claims Against Ms. Gordon and Ms.
February 19, 2016, Mr. Karstens sent an email to employees of
the PMO, including to Ms. Cole and Ms. Gordon, summarizing
the staff meeting and reminding them that Ms. Perkins would
be their direct supervisor. DSMF ¶ 40; PRDSMF ¶ 40.
Part of Ms. Perkins' responsibility as supervisor was to
review the timesheets of her direct reports. DSMF ¶ 42;
PRDSMF ¶ 42. Ms. Perkins also reviewed the electronic
time and attendance records of those employees who had
requested approval to take vacation time in the future to
determine whether they had sufficient accrued time on the
books. DSMF ¶ 45; PRDSMF ¶ 45. On February 17,
2016, Mr. Karstens advised administrative assistant Brenda M.
of this change, and asked her to update the timesheet
approval information for employees that Ms. Perkins would be
supervising in the time and attendance system. Brenda M.
completed this change on February 19, 2016. DSMF ¶ 41;
PRDSMF ¶ 41.
Perkins was on vacation the week of February 15, 2016 and
returned to the office on February 22, 2016. DSMF ¶ 43;
PRDSMF ¶ 43. Upon returning to the office, Ms. Perkins
reviewed for approval the timesheets submitted by Ms. Gordon
and Ms. Cole for the payroll period ending February 27,
2016. DSMF ¶ 44; PRDSMF ¶ 44. Ms.
Gordon and Ms. Cole were the only two employees supervised by
Ms. Perkins who signed and submitted their timesheets for
approval in advance of the end of the payroll reporting
period ending February 27, 2016. DSMF ¶ 46; PRDSMF
¶ 46. On February 16, 2016, both Ms. Gordon and Ms. Cole
electronically signed their respective timesheets for the
payroll reporting period ending February 27, 2016. DSMF
¶ 47; PRDSMF ¶ 47; DSMF ¶ 48; PRDSMF ¶
48. Both Ms. Gordon's and Ms. Cole's timesheets
reflected that they worked forty “regular” hours
during the week of February 22, 2016. DSMF ¶ 49; PRDSMF
Ms. Perkins reviewed Ms. Gordon's and Ms. Cole's
timesheets, the time and attendance system displayed a
warning that Ms. Gordon and Ms. Cole's vacation accruals
were nearing the accrual limit, and that they would soon
start losing vacation time. DSMF ¶ 50; PRDSMF ¶ 50.
Ms. Perkins was concerned and puzzled about the
“over-the-limit” accrual warning because she was
aware that Ms. Gordon had recently taken a vacation. DSMF
¶ 51; PRDSMF ¶ 51. Mr. Karstens had previously
approved Ms. Cole for a vacation in Mexico from February 22,
2018 through March 4, 2016. DSMF ¶ 52; PRDSMF ¶ 52.
Ms. Perkins was aware that Ms. Cole had previously requested
and been approved to take vacation during the week of
February 22, 2016. DSMF ¶ 53; PRDSMF ¶ 53.
February 22, 2016, Ms. Gordon's calendar showed Ms. Cole
to be out on vacation but showed several meetings scheduled
for Ms. Gordon. DSMF ¶ 54; PRDSMF ¶ 54. Ms.
Perkins was also aware that Ms. Gordon had called in sick
during some of the payroll period ending February 27, 2016.
DSMF ¶ 55; PRDSMF ¶ 55. Ms. Perkins was concerned
that Ms. Gordon and Ms. Cole had completed and turned in
their timesheets a week before the end of the payroll
reporting period. DSMF ¶ 56; PRDSMF ¶ 56. Ms.
Perkins took her concerns to Mr. Karstens the morning of
February 22, 2016. DSMF ¶ 57; PRDSMF ¶ 57. On
February 22, 2016, Ms. Perkins was not aware of Ms. Gordon
and Ms. Cole's complaints against Mr. Karstens. DSMF
¶ 58; PRDSMF ¶ 58. Mr. Karstens and Ms. Perkins
reviewed past timesheets for Ms. Gordon and Ms. Cole and
learned that they had been approving each other's
timesheets. DSMF ¶ 59; PRDSMF ¶ 59. Based
on her “Managing in State Government” supervisory
training, Ms. Perkins understanding was that it was not
appropriate for co-workers to be approving each other's
timesheets. DSMF ¶ 60; PRDSMF ¶ 60.
Karstens contacted CIO Smith the morning of February 22,
2016, and he reported the concerns regarding the timesheets.
DSMF ¶ 61; PRDSMF ¶ 61. Mr. Karstens and Sandy
Saunders, the Director of Communications, then reviewed Ms.
Gordon's and Ms. Cole's past calendars and
emails. DSMF ¶ 62; PRDSMF ¶ 62. Mr.
Karstens and Ms. Saunders discovered that Ms. Gordon's
and Ms. Cole's calendars contained regular weekly or
bi-weekly meetings, scheduled with Outlook invitations to Ms.
Gordon, Ms. Cole, and Male Employee, beginning October 16,
2015, for meetings at Ms. Gordon's house for one- to
five-hour blocks during workdays related to the subject
“AW.” DSMF ¶ 63; PRDSMF ¶ 63. Mr.
Karstens also discovered that several meeting invitations
were subsequently cancelled through Outlook, both
retroactively and prospectively, after Mr. Karstens, Ms.
Perkins, and Ms. Saunders reported Ms. Gordon's and Ms.
Cole's time issues to Human Resources. DSMF ¶
64; PRDSMF ¶ 64. Most of the meetings were cancelled
before February 22, 2016, the date of Mr. Karstens'
alleged discovery. DSMF ¶ 64; PRDSMF ¶ 64.
Mr. Karstens also discovered that Ms. Gordon did not record
vacation time on her timesheet for the payroll period ending
January 2, 2016, Ms. Gordon worked on December 21 and 22,
2015, and attended a work holiday lunch on the December 22,
2015. DSMF ¶ 67; PRDSMF ¶ 67. Ms. Gordon took
December 23, 2015 as a sick day, December 24, 2015 as
Administrative Leave, and December 25, 2015 as Holiday
Pay. DSMF ¶ 67; PRDSMF ¶ 67. Both
Ms. Perkins and Mr. Karstens believed that Ms. Gordon was on
vacation during that period, visiting her sister in the
Carolinas. DSMF ¶ 68; PRDSMF ¶ 68. According to OIT
computer records relied on by State EEO Officer Laurel
Shippee during the investigation of Ms. Gordon, Ms. Gordon
did not log onto the State computer system between December
22, 2015 and December 29, 2015; however, an email Ms. Gordon
sent using the state system on December 22, 2015 is not
reflected in these records. DSMF ¶ 69; PRDSMF ¶
Karstens also discovered that in November 2015, Ms. Gordon
wrote to Human Resources to request a waiver of maximum
vacation accruals for her and for Ms. Cole, stating that she
and Ms. Cole were working on high-profile Business Process
Management projects, as well as assuming some additional job
duties, and could not take vacation time until at least after
the first of the year. DSMF ¶ 70; PRDSMF ¶ 70. At
the time Ms. Gordon made the request, she was working for
Doug Birgfeld. DSMF ¶ 71; PRDSMF ¶ 71.
February 23, 2016, Ms. Perkins contacted Ms. Beaudoin to
schedule a meeting to discuss the timesheet and calendar
discoveries involving Ms. Cole and Ms. Gordon. DSMF ¶
101; PRDSMF ¶ 101. On February 24, 2016, Mr. Karstens,
Ms. Perkins, and Ms. Saunders met with Ms. Beaudoin and
presented the information they had discovered regarding Ms.
Gordon's and Ms. Cole's timesheets and calendars.
DSMF ¶ 102; PRDSMF ¶ 102.
February 29, 2016, Ms. Gordon and Ms. Cole were each notified
that they were being placed under investigation for (1)
falsifying time and attendance for themselves and others; (2)
providing false justification for waiving maximum vacation
accrual limits; and (3) inappropriately using time and other
State resources for personal business. DSMF ¶ 108;
PRDSMF ¶ 108. Male Employee was not investigated because
he was no longer employed by the State. DSMF ¶
109; PRDSMF ¶ 109. Had Male Employee still been employed
by OIT after February 22, 2016, he would have been placed
under investigation, along with Gordon and Cole, for
inappropriately using time and other State resources for
personal business.DSMF ¶ 110; PRDSMF ¶ 110. OIT
also considered whether to take action against the
contractors, both male and female, who were included in some
of the meeting invitations for “AW” meetings.
DSMF ¶ 111; PRDSMF ¶ 111. After conducting an
initial review, however, it was determined that it did not
appear that the contractors charged their time for attending
“AW” meetings. DSMF ¶ 112; PRDSMF ¶
February 22, Ms. Beaudoin told Mr. Smith she had spoken to
Ms. Cole and “there is more to the story.” PSAMF
¶ 167; DRPSAMF ¶ 167. On or about February 22,
2016, Mr. Smith authorized Mr. Karstens to lock the
Plaintiffs out of the state computer system and collect
evidence against them. PSAMF ¶ 168; DRPSAMF ¶ 168.
CIO Smith gave his authorization in consultation with Human
Resources, after Mr. Karstens had gone to him on February 22,
2016 with the initial information that Ms. Perkins, Ms.
Saunders, and he had discovered regarding Plaintiffs'
possible falsification of time and attendance records. PSAMF
¶ 168; DRPSAMF ¶ 168. On February 23, 2016, Ms.
Saunders expressed her concern to Mr. Smith that Ms. Gordon
and Ms. Cole were working to clean up their email and she
stated that she thought it would be a good idea to get
permission from Human Resources to get access to their email.
PSAMF ¶ 168; DRPSAMF ¶ 168. Mr. Karstens spent
hours on the evenings of Monday, February 22, and Tuesday,
February 23, creating spreadsheets and compiling
evidence against the Plaintiffs, which he later gave to Ms.
Beaudoin and/or Ms. Shippee. PSAMF ¶ 169; DRPSAMF
¶ 169. On February 23, 2016 at 3:31 a.m., Ms. Gordon
told Ms. Beaudoin “this is one of the hardest things I
have ever had to do in my career-this is very
stressful” and that she and Ms. Cole had a
“concern with Jim's ability to make the best
decision for Kayla's safety.” PSAMF ¶ 170;
DRPSAMF ¶ 170. On February 23, 2016, Ms. Beaudoin met
with Mr. Smith, who told her “Josh has been going
through emails” and mentioned a “smoking
gun” related to Agile Wave, and that Kayla and Terry
“missupp” and “falsify t.” PSAMF
¶ 172; DRPSAMF ¶ 172. On February 23, 2016, at 7:52
PM, Mr. Karstens told Mr. Smith he had “cross checked
the TAMS for Kayla and Terry” and found 29 instances
where they allegedly scheduled meetings for Agile Wave and
falsified TAMS. PSAMF ¶ 173; DRPSAMF ¶ 173. On
February 23, 2016, at 10:20 PM, Mr. Karstens forwarded his
research to Ms. Perkins. PSAMF ¶ 174; DRPSAMF ¶
February 24 and February 25, 2016, OIT employee Mark T. told
Ms. Beaudoin via email that Ms. Gordon is “not
dramatic” and “not in her nature to be
spooked” but that Mr. Karstens' behavior was
causing her to be physically ill and that she was afraid to
even see his truck. PSAMF ¶ 175; DRPSAMF ¶ 175.
Mark T. also told Ms. Beaudoin that he personally observed
Mr. Karstens where a “stiff, argumentative, almost
belligerent aura comes over him, almost like a hum radiating
through him”. PSAMF ¶ 176; DRPSAMF ¶ 176.
February 24, 2016, Mr. Smith told Ms. Shippee or Ms. Beaudoin
that “based on the emails and calendar entries, it is
time to talk to Joyce and Legal about a criminal
investigation.” PSAMF ¶ 177; DRPSAMF ¶ 177.
On February 29, 2016 at 8:37 AM, Mr. Karstens told Ms.
Beaudoin and Ms. Shippee “Cole is contacting staff to
try to determine what is going on. You ok with me informing
them that if she or Terry calls for them to just inform her
to contact myself or Cassandra Perkins?” PSAMF ¶
178; DRPSAMF ¶ 178. On February 29, 2016, at 9:27 a.m.,
Mr. Karstens told Ms. Beaudoin and Ms. Shippee that he
received no requests from the Plaintiffs for time off on
February 17 and February 18. PSAMF ¶ 179; DRPSAMF ¶
179. On February 29, 2016, at 10:05 a.m., Ms. Gordon told Ms.
Beaudoin, “my state email has been suspended I feel
vulnerable and like I'm being retaliated against.”
PSAMF ¶ 180; DRPSAMF ¶ 180. On February 29, 2016,
at 10:21 a.m., Ms. Shippee told Ms. Beaudoin that until the
notice of investigation went out to Ms. Cole and Ms. Gordon,
calls from Ms. Cole “can be referred to
Josh.” PSAMF ¶ 181; DRPSAMF ¶ 181.
February 29, 2016, at 10:42 a.m., Ms. Beaudoin told Mr.
Karstens, “I will be changing Terry's time once I
get updated information from you. Is Kayla's time okay as
reported?” PSAMF ¶ 182; DRPSAMF ¶ 182.
Underlying Ms. Beaudoin's comment was initial confusion
as to whether Ms. Cole and Ms. Gordon had worked on February
17 and 18 or whether they had called in sick. PSAMF ¶
182; DRPSAMF ¶ 182. Ms. Beaudoin contacted Ms. Gordon by
email on February 29, 2016 to determine her status on those
dates. PSAMF ¶ 182; DRPSAMF ¶ 182. Ms. Gordon had
trouble remembering whether she had actually worked on those
dates. PSAMF ¶ 182; PRDSMF ¶ 182. Based on her
communications with Ms. Gordon, Ms. Beaudoin agreed to adjust
the timesheet in Ms. Gordon's favor. PSAMF ¶ 182;
DRPSAMF ¶ 182. In any event, the time and attendance
records and calendar entries for February 17 and 18 were not
the subject of the personnel investigations. PSAMF ¶
182; DRPSAMF ¶ 182. At 10:54 a.m. on February 29, 2016,
Mr. Karstens asked Ms. Beaudoin, “Did you get the email
I sent explaining the sick time and the time she was out of
the office without any notification.” PSAMF ¶ 183;
DRPSAMF ¶ 183.
Cole was on medical leave from March 7, 2016, through June
17, 2016. DSMF ¶ 113; PRDSMF ¶ 113. Ms. Gordon was
on medical leave from February 19, 2016 through June 19,
2016. DSMF ¶ 114; PRDSMF ¶ 114. Both Ms. Cole and
Ms. Gordon were placed on paid administrative leave effective
June 20, 2016. DSMF ¶ 115; PRDSMF ¶ 115. The State
EEO Officer, Laurel Shippee, was assigned to conduct the
investigation of the allegations against Ms. Gordon and Ms.
Cole. DSMF ¶ 116; PRDSMF ¶ 116. Human Resources
manager Doreen Brown was assigned to conduct the
investigation of Ms. Cole's and Ms. Gordon's
complaints against Mr. Karstens. DSMF ¶ 117; PRDSMF
March 23, 2016, Ms. Beaudoin wrote to Ms. Gordon and Ms. Cole
and asked whether they would be willing to be interviewed
while on medical leave regarding their complaints against Mr.
Karstens. DSMF ¶ 118; PRDSMF ¶ 118. Ms.
Gordon's and Ms. Cole's union representative advised
Ms. Shippee that Ms. Gordon and Ms. Cole were unwilling to be
interviewed while on medical leave regarding their complaints
against Mr. Karstens. DSMF ¶ 119; PRDSMF ¶ 119.
Ms. Shippee subsequently interviewed Ms. Gordon and Ms. Cole
at least five times each with respect to the allegations
against them. DSMF ¶ 121; PRDSMF ¶ 121. During at
least one of those interviews, Ms. Shippee asked Ms. Gordon
and Ms. Cole whether they would agree to be interviewed
regarding their complaints against Mr. Karstens. DSMF ¶
122; PRDSMF ¶ 122.
Gordon and Ms. Cole filed a joint discrimination charge with
the Maine Human Rights Commission on June 20, 2016. DSMF
¶ 120; PRDSMF ¶ 120. On June 21, 2016, Ms. Beaudoin
wrote Ms. Gordon and Ms. Cole to schedule interviews with Ms.
Brown and Ms. Shippee for June 27, 2016, regarding their
complaints against Mr. Karstens. DSMF ¶ 123; PRDSMF
¶ 123. Ms. Gordon and Ms. Cole, through their attorney,
declined to be interviewed regarding their
complaints. DSMF ¶ 124; PRDSMF ¶ 124.
conducting the investigations of Ms. Cole and Ms. Gordon, Ms.
Shippee interviewed at least thirteen witnesses in addition
to Ms. Cole and Ms. Gordon. DSMF ¶ 125; PRDSMF ¶
125. CIO Jim Smith was not interviewed as part of the
investigations of Ms. Cole or Ms. Gordon. DSMF ¶ 126;
PRDSMF ¶ 126. Ms. Shippee completed the investigation of
Ms. Gordon and issued a report on September 15, 2016,
substantiating all three allegations against her. DSMF ¶
127; PRDSMF ¶ 127. Ms. Shippee found Ms. Gordon's
responses not credible during the
investigation. DSMF ¶ 130; PRDSMF ¶ 130.
21, 2016, Ms. Shippee told Mr. Smith that it was not
appropriate for her to be communicating with Mr. Karstens
about the investigation since he is a witness. PSAMF ¶
187; DRPSAMF ¶ 187. On September 23, 2016, Mr. Karstens
told Ms. Shippee he wanted to start the process to replace
the Plaintiffs and retrieve state equipment in their
possession. PSAMF ¶ 171; DRPSAMF ¶ 171.
Shippee completed the investigation of Ms. Cole and issued a
report on October 4, 2016, substantiating the allegations
that Ms. Cole falsified time and attendance for others and
inappropriately used time and other State resources for
personal business. DSMF ¶ 128; PRDSMF ¶ 128. Ms.
Shippee did not substantiate the allegations against Ms. Cole
that she falsified her own time and attendance or that she
provided false justification for waiving maximum vacation
accrual limits. DSMF ¶ 129; PRDSMF ¶ 129. Ms.
Shippee found Ms. Cole's responses not credible with
regard to the allegation that Ms. Cole allowed others to
falsify their time and the allegation that Ms. Cole
inappropriately used State time and resources. DSMF ¶
131; PRDSMF ¶ 131. Ms. Shippee found Ms. Gordon's
responses not credible during the
investigation. DSMF ¶ 135; PRDSMF ¶ 135.
the investigation, Mr. Smith recommended what level of
discipline against Ms. Gordon and Ms. Cole was
appropriate. DSMF ¶ 132; PRDSMF ¶ 132. Mr.
Smith initially recommended that both Ms. Gordon and Ms. Cole
be terminated. DSMF ¶ 133; PRDSMF ¶ 133.
Ultimately, OIT, Ms. Cole, and Ms. Cole's union agreed
that in lieu of termination, a two-week unpaid suspension
would be served from December 12, 2016 to December 23, 2016.
The agreement states that Ms. Cole admitted no wrongdoing and
she reserved her right to pursue claims of harassment and
retaliation. DSMF ¶ 134; PRDSMF ¶ 134.
Loudermill hearing was scheduled on the proposed
termination of Ms. Gordon on September 23, 2016, and DAFS
Deputy Commissioner David Lavway presided over the
Loudermill hearing. DSMF ¶ 136; PRDSMF ¶
136. Ms. Gordon attended the hearing with her union
representative. DSMF ¶ 137; PRDSMF ¶ 137. Following
the hearing, Deputy Commissioner Lavway upheld the proposed
termination of Gordon's employment, effective September
30, 2016. DSMF ¶ 138; PRDSMF ¶ 138.
Cole served her suspension and returned to work on December
27, 2016. DSMF ¶ 139; PRDSMF ¶ 139. Upon her return
to work, Ms. Cole was assigned to a new supervisor,
Technology Business Consultant Nathan Willigar, in the chain
of command under Associate CIO Victor
Chakravarty. DSMF ¶ 140; PRDSMF ¶ 140.
Although Ms. Cole did not have any communication with Mr.
Karstens after her return to work, she was assigned to work
approximately thirty feet from Mr. Karstens and in his chain
of command, making her very uncomfortable. DSMF ¶ 141;
PRDSMF ¶ 141. Furthermore, Ms. Cole was not given the
proper equipment to do her job. DSMF ¶ 141; PRDSMF
¶ 141. In addition, her new supervisor made a comment
suggesting that her return to work was an unpleasant
surprise. DSMF ¶ 141; PRDSMF ¶ 141.
Cole submitted her resignation effective January 18,
2017. DSMF ¶ 142; PRDSMF ¶ 142. Ms.
Cole did not give a reason for her resignation at the time
she submitted it, but in her exit interview, she stated she
felt uncomfortable working in such close proximity to Mr.
Karstens and that the State did not address her complaints of
harassment and retaliation. DSMF ¶ 143; PRDSMF ¶
143. Specifically, the handwritten notes of the exit
interview state in part: “Jim said they would be on
different floors -- he owns this one -- are you kidding?
Kelly is not going to like this.” DSMF ¶ 143;
PRDSMF ¶ 143. Ms. Cole began a new job outside State
government on or about January 30, 2017. DSMF ¶ 144;
PRDSMF ¶ 144.
The Plaintiffs' Discrimination Claims
to Ms. Gordon, Mr. Smith discriminated against her when he
failed to take her to lunch when she was named Employee of
the Month but took Ms. Cole to lunch for a similar occasion.
DSMF ¶ 150; PRDSMF ¶ 150. Ms. Gordon does not know
if Mr. Karstens discriminated against her but thinks that he
discriminated against Ms. Cole by implying that she was
“just as smart as a man.” DSMF ¶ 151; PRDSMF
¶ 151. According to Ms. Cole, Mr. Karstens discriminated
against her when he made a statement to the effect that she
was just as smart as a man; when he insinuated to others that
Ms. Cole was too friendly with a male contractor, and when he
said that he got Ms. Cole her promotion. DSMF ¶ 152;
PRDSMF ¶ 152. Mr. Smith never did or said anything
inappropriate to Ms. Cole. DSMF ¶ 153; PRDSMF ¶
153. Ms. Cole never personally witnessed Mr. Smith make any
sexual comments. DSMF ¶ 154; PRDSMF ¶ 154. Both Ms.
Gordon and Ms. Cole received a copy of the State's Policy
Prohibiting Workplace Harassment during their employment and
received training on the policy. DSMF ¶ 155; PRDSMF