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Cole v. State, Office of Information Technology

United States District Court, D. Maine

September 25, 2018

KAYLA MARIE COLE and TERESA L. GORDON, Plaintiffs,
v.
STATE OF MAINE, OFFICE OF INFORMATION TECHNOLOGY, Defendant.

          ORDER ON MOTION FOR SUMMARY JUDGMENT

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         Two 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.

         I. PROCEDURAL HISTORY

         On 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).

         On 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).

         II. STATEMENT OF FACTS[1]

         A. Background

         1. The Parties

         OIT 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).[2] OIT promoted Ms. Gordon to Project Manager in April 2015. DSMF ¶ 2; PRDSMF ¶ 2.

         OIT 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.[3] DSMF ¶ 6; PRDSMF ¶ 6.

         In a 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.[4] 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.

         On 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.

         2. Agile Wave

         Effective 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.

         3. The Pega Enterprise Agreement

         The Pega Enterprise Agreement is an $8 million sole source contract negotiated “confidentially” by Jim Smith and Doug Averill.[5] 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.[6] 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.

         When 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.[7] 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.[8] 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 fit.[9] 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.

         B. Interactions between Mr. Karstens, Ms. Cole, and Ms. Gordon

         On 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.[10] 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.[11] 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.

         Male 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.[12] 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.[13] DSMF ¶ 30; PRDSMF ¶ 30.

         On 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.[14] 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.

         Generally, 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 ¶ 148.

         C. Ms. Cole's and Ms. Gordon's Reports to Management about Mr. Karstens

         On or 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.

         Tammy 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 ¶ 162.

         On 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.[15] PSAMF ¶ 166; DRPSAMF ¶ 166.

         On 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.[16] 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.

         Ms. 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.[17] 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.

         Ms. 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.

         Ms. 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.

         They 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.

         Ms. 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.

         Ms. 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.

         Ms. 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.

         Ms. 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.

         Ms. 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.”[18] 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.[19] 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.

         On 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.[20] DSMF ¶ 103; PRDSMF ¶ 103. Mr. Karstens had no knowledge before February 24, 2016, of Ms. Gordon's and Ms. Cole's complaints against him.[21] 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.[22] DSMF ¶ 106; PRDSMF ¶ 106; DSMF ¶ 107; PRDSMF ¶ 107.

         D. Time and Attendance Claims Against Ms. Gordon and Ms. Cole

         On 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.

         Ms. 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.[23] 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 ¶ 49.

         When 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.

         On February 22, 2016, Ms. Gordon's calendar showed Ms. Cole to be out on vacation but showed several meetings scheduled for Ms. Gordon.[24] 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.[25] 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.[26] 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.

         Mr. 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.[27] 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.[28] 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.

         Though 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.[29] 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.[30] DSMF ¶ 69; PRDSMF ¶ 69.

         Mr. 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.[31] DSMF ¶ 70; PRDSMF ¶ 70. At the time Ms. Gordon made the request, she was working for Doug Birgfeld.[32] DSMF ¶ 71; PRDSMF ¶ 71.

         On 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.

         On 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.[33] 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.[34]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 ¶ 112.

         On 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.[35] 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.[36] 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 ¶ 174.

         Between 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.[37] 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”.[38] PSAMF ¶ 176; DRPSAMF ¶ 176.

         E. OIT's Investigation

         On 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.”[39] PSAMF ¶ 181; DRPSAMF ¶ 181.

         On 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?”[40] 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.

         Ms. 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 ¶ 117.

         On 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.[41] 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.

         Ms. 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.[42] DSMF ¶ 124; PRDSMF ¶ 124.

         In 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.[43] DSMF ¶ 130; PRDSMF ¶ 130.

         On June 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.[44] 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.[45] PSAMF ¶ 171; DRPSAMF ¶ 171.

         Ms. 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.[46] 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.[47] DSMF ¶ 131; PRDSMF ¶ 131. Ms. Shippee found Ms. Gordon's responses not credible during the investigation.[48] DSMF ¶ 135; PRDSMF ¶ 135.

         Following the investigation, Mr. Smith recommended what level of discipline against Ms. Gordon and Ms. Cole was appropriate.[49] 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.[50] DSMF ¶ 134; PRDSMF ¶ 134.

         A 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.[51] 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.

         Ms. 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.[52] 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.

         Ms. Cole submitted her resignation effective January 18, 2017.[53] 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.[54] 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.

         F. The Plaintiffs' Discrimination Claims

         According 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.[55] 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 ¶ 155.

         III. THE ...


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