United States District Court, D. Maine
ORDER ON DEFENDANTS' MOTION
Z. SINGAL, UNITED STATES DISTRICT JUDGE
case is one of three related cases brought by former female
corrections officers against Kennebec County and multiple
employees of Kennebec County alleging various discriminatory
and illegal practices at the Kennebec County Correctional
Facility. While originally brought as one case, Huard v.
Kennebec County et al., D. Me. Docket No.
1:16-cv-00473-GZS, the Court ordered the claims of the three
plaintiffs severed after the close of discovery.
before the Court is Defendants' Motion for Judgment on
the Pleadings and for Summary Judgment (ECF No. 13). For
reasons explained herein, the Court GRANTS IN PART AND DENIES
IN PART the Motion.
MOTION FOR JUDGMENT ON THE PLEADINGS
the Court turns its attention to Defendants' arguments
for summary judgment, the Court considers two discrete issues
for which Defendants seek judgment on the pleadings in
accordance with Federal Rule of Civil Procedure 12(c). In
considering these arguments, the Court has reviewed
Plaintiff's Amended Complaint (ECF No. 1) and accepted
all of her “well-pleaded factual averments” and
drawn “all reasonable inferences in her favor.”
Feliciano v. Rhode Island, 160 F.3d 780, 788 (1st
Cir. 1998). The Court recognizes at the outset that judgment
on the pleadings may be entered where the complaint fails to
“contain sufficient factual matter to state a claim to
relief that is plausible on its face.” Grajales v.
Puerto Rico Auth., , 682 F.3d 40, 44 (1st Cir. 2012)
(internal citations omitted). Indeed, “[t]o cross the
plausibility threshold a claim does not need to be probable,
but it must give rise to more than a mere possibility of
liability.” Id. at 44-45.
the individual Defendants seek judgment on the Plaintiff's
employment discrimination claims (Counts IV, V, VIII, IX
& X) arguing that there is no individual
liability under the respective federal and state statutes. On
this point, the Court agrees with Defendants. The First
Circuit has clearly held that “there is no individual
employee liability under Title VII.” Fantini v.
Salem State Coll., 557 F.3d 22, 30 (1st Cir. 2009).
respect to Maine's companion state statute, the Maine
Human Rights Act (“MHRA”), 5 M.R.S.A. § 4551
et seq., this Court has previously held,
“there is no individual liability under the
MHRA.” Charette v. St. John Valley Soil & Water
Conservation Dist., No. 1:17-CV-35-GZS, 2017 WL 2683951,
at *12 (D. Me. June 20, 2017) (discussing Fuhrmann v.
Staples Office Superstore East, Inc., 58 A.3d 1083 (Me.
2012)). While Plaintiff has cited a 2013 guidance memorandum
from the Maine Human Rights Commission as offering
support for individual liability after Fuhrmann, the
Court does not believe this memo can override the clear case
law that supports judgment as a matter of law in favor of the
individual Defendants named in this case. See, e.g.,
United States ex rel. Worthy v. E. Maine Healthcare
Sys., No. 14-cv-00184-JAW, 2017 WL 211609, at *32 (D.
Me. Jan. 18, 2017) (concluding that “only an employer
can be liable” for employment discrimination and
whistle-blowing retaliation); Fisk v. Mid Coast
Presbyterian Church, No. 16-cv-00490-JDL, 2017 WL
1755950, at *4-*5 (D. Me. May 4, 2017). Thus, the Court
concludes that each individual Defendant is entitled to
judgment on the pleadings as to Plaintiff's statutory
employment discrimination claims (Counts IV, V, VIII, IX
Defendants seek judgment on the pleadings as to Count XVI,
which Plaintiff's First Amended Complaint describes as
“criminal liability of Kennebec County, Kennebec County
Sheriff's Office and its Corrections Division, Kennebec
County Correction Facility, Kennebec County Commissioners and
Kennebec County Administrator” and cites 17-A M.R.S.A.
§ 60. (First Am. Compl. (ECF No. 1), PageID # 85). As
framed, this Count fails to state a claim upon which
Plaintiff could recover any relief in the context of this
civil case. See, e.g., Larrabee v. Penobscot
Frozen Foods, Inc., 486 A.2d 97, 101 (Me. 1984). To the
extent that Plaintiff has argued that Count XVI should be
read to state a plausible civil RICO claim, the Court notes
that Plaintiff's civil RICO claims are captured in Counts
the Court grants Defendants' request for judgment on the
pleadings as to all Defendants on Count XVI and as to the
individually named Defendants on Counts IV, V, VIII, IX &
X. The Court next considers Defendants' request for
summary judgment on Plaintiff's remaining claims.
MOTION FOR SUMMARY JUDGMENT
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).
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 draw all reasonable inferences in its favor.
See Santoni v. Potter, 369 F.3d 594, 598 (1st Cir.
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).
Kennebec County is ultimately overseen by three elected
county commissioners, Patsy Crockett, Nancy Rines, and George
Jabar, each of whom is named as a Defendant in this case in
both their individual and official capacities. The County
Commissioners promulgate and amend the Kennebec County
Administrative Regulations, which serve as the internal
policies for the county. The day-to-day administration of
Kennebec County is handled by County Administrator Bob Devlin
and Human Resources Manager Terry York, both of whom are
likewise named as individual Defendants in this case.
Kennebec County Sheriff's Office operates as a department
within the county government run by an elected Sheriff.
During the time period relevant to this case, Defendant
Randall Liberty was the Kennebec County Sheriff. Defendant
Ryan Reardon worked as the assistant corrections
administrator beginning in September 2011 and remained in
that position until July 1, 2013, when he became chief
deputy. Reardon became interim sheriff on September 28, 2015.
the Sheriff's Office, there is a Corrections Division
that operates the county jail, also known as the Kennebec
County Correctional Facility (“KCCF”). Various
KCCF employees make up the remainder of the individually
named Defendants in this case, including:
• Marsha Alexander, who began working for Kennebec
County in 1998 and worked as the jail administrator from
August 2011 until March 2017.
• Laura Briggs, who began working for Kennebec County in
September 2003 and was promoted to a corporal in February of
2012, then to a sergeant in November 2013, then a staff
sergeant in August 2015, and a lieutenant in October 2016.
Briggs left her employment with Kennebec County on January 6,
• Calista Campbell, who began working for Kennebec
County as a clerical specialist in November 2010. Campbell
was promoted to staff sergeant in February 2013 and then
again promoted to assistant corrections administrator in
• Jessica Quinn, who was hired as a clerical specialist
at KCCF in July 2011. Quinn then became a part-time
corrections officer in November 2012. In March 2016, she
became the KCCF programs director.
• Dan Cyr, who was employed as a sergeant at KCCF from
July 2011 through August 2016.
addition to the KCCF employees named as Defendants,
DiGiacomo's factual allegations refer to multiple fellow
corrections officers, including Officers Rocque, Nelson,
Underwood, Wilhoite, Simmons, and Cipriano. These KCCF
employees were DiGiacomo's co-workers and did not
supervise DiGiacomo's work. All told, between 2010 and
2016, the Kennebec County Correctional Facility employed 209
people; 57 of these employees were female and 152 of these
employees were male. During the time period relevant to this
case, all KCCF employees were required to follow the rules
laid out in the KCCF Policy & Procedures Manual, which
was subject to annual review and revision.
to at least one other employee, as the jail administrator,
“Marsha Alexander was running the show” inside
KCCF during this time period with “limited
supervision.” (Morin Dep. (ECF No. 18-7), PageID #
417.) Alexander, in turn, maintained personal friendships
with Briggs, Campbell, and Quinn, all of whom were
heterosexual. Because of these friendships, other employees
viewed all four women (Alexander, Briggs, Campbell &
Quinn) as having “certain perks” as well as the
ability to influence how the facility was run. (Heavey-Morin
Dep. (ECF No. 18-6), PageID # 412.) However, many other KCCF
employees were “worried about their jobs” and
“the number and the constant investigations that were
going on.” (Morin Dep., PageID # 416.)
this backdrop, Plaintiff Diedre DiGiacomo
(“DiGiacomo”) began working as a corrections officer
for Kennebec County on November 4, 2013. As part of her
orientation, she received sexual harassment
training. As a Jewish lesbian woman who had
relocated from New York, DiGiacomo expected “that there
would be some degree of light-hearted poking fun of her
accent, and her cultural differences.” (DiGiacomo Aff.
(ECF No. 18-1), PageID # 377.) But, she also hoped and
expected “that over time, once they got to know [her, ]
. . . they would accept [her] as part of the team.”
(Id., PageID # 377.) DiGiacomo fulfilled the
statutory probationary period for corrections officers on
November 4, 2014. After this date, she was a member of the
union at KCCF.
Counseling and Disciplinary Action History
her tenure, Kennebec County documented three instances in
which DiGiacomo received some form of counseling or
discipline. Each incident is captured on a Kennebec County
Sheriff's Office Counseling and Disciplinary Action Form.
First, on May 2, 2014, Sergeant Keith LaChance documented his
verbally counseling of DiGiacomo for having taken four sick
days between January 2014 and April 2014, which were
considered “unauthorized absences and abuse of sick
time.” (Def. Ex. 2 (ECF No. 14-8), PageID # 269.)
DiGiacomo's written response indicated that the absences
were due to her mother's health problems.
on July 14, 2014, Sergeant Peabody gave DiGiacomo a written
reprimand for refusing an “order in” on June 12,
2014. On June 12, DiGiacomo was working a shift
when a rash she already had became severe. KCCF medical
staff provided DiGiacomo medication, including Benadryl,
which made DiGiacomo feel sick and very drowsy. She contacted
Corporal Gardiner to report her medical issues and ask if she
could be relieved from her floor duties. No. relief was sent
to the floor. Instead, towards the end of the shift,
DiGiacomo was told by Sergeant Peabody she was being
“ordered in, ” which meant she was being required
to stay and work additional hours. In addition to her medical
issues, DiGiacomo also was unable to stay at work that day
because she could not secure last-minute child care for her
special needs children. As a result of her refusal of the
additional “order in” hours, she received a
write-up. However, DiGiacomo appealed the write-up. On July
23, 2014, DiGiacomo met with Lieutenant Campbell, along with
Union Steward Huard, to discuss her appeal. Ultimately,
Campbell downgraded DiGiacomo's written reprimand over
the “order in” to a verbal counseling and noted
that DiGiacomo would be obtaining a medical note to support
her request for no short notice order-ins in the
on September 10, 2014, DiGiacomo received verbal counseling
for violating a KCCF Policy that required all employees to
treat inmates with respect. The incident at issue took place
on May 31, 2014 when DiGiacomo “lost [her]
temper” with an inmate who sought service of a meal
from her meal cart in his underwear. (Def. Ex. 4 (ECF No.
14-10), PageID # 273.)
acknowledges that none of these reprimands resulted in her
losing pay or responsibilities. In fact, DiGiacomo never
experienced any unrequested change in job assignment or work
responsibilities while employed at KCCF.
Work Environment at KCCF
complaints focus on the work environment she experienced
during her eighteen months of employment at KCCF. After she
completed her initial field training, DiGiacomo began working
as a corrections officer on the midnight to 8 a.m. shift.
During these shifts she worked with Officer Rocque, who made
jokes and comments that DiGiacomo found “extremely
offensive.” (DiGiacomo Aff., PageID # 371.) On one
occasion, DiGiacomo was paired with Officer Rocque to
complete the rehanging of shower curtains. In response to
DiGiacomo suggesting to Rocque that he was making the task
harder than it might be if they hung the curtains
differently, Rocque responded that “the only thing that
should be making me hard in this shower is you.”
(7/17/17 DiGiacomo Dep. (ECF No. 18-2), PageID #s 393-394.)
initially responded to Rocque's offensive remarks using
the “officer respect” strategy she learned during
training, which encouraged her to approach fellow officers
directly and request that they stop the offending behavior.
However, by the end of January 2014, DiGiacomo was approached
by Sergeant LaChance, the immediate supervisor on the night
shift, who inquired about issues between Rocque and DiGiacomo
that he had heard about from other officers. At that time,
DiGiacomo verbally reported Rocque's inappropriate
comments, including the shower comment, to LaChance and
expressed her desire to handle the situation using officer
respect. Nonetheless, LaChance told DiGiacomo he would make
note of the issue and speak to Rocque about it.
also encountered comments from fellow officers that she
considered anti-Semitic. DiGiacomo took particular offense to
an officer who sarcastically compared the conditions inside
the jail to Auschwitz. Additionally, multiple officers would
mock DiGiacomo by repeating words she used with a
“Jewish phonetic pronouncement.” (DiGiacomo Aff.,
PageID # 376.)
after her initial discussion with LaChance, DiGiacomo began
keeping notes of comments and behaviors by her fellow
corrections officers that she considered offensive. By March
2014, Sergeant LaChance called DiGiacomo to the office to
specifically ask about her notetaking. LaChance indicated
that DiGiacomo “would get in trouble for keeping
notes.” (3/1/18 DiGiacomo Dep. (ECF No. 18-3), PageID #
April 2014, DiGiacomo moved to the 8 a.m. to 4 p.m. shift.
She believed this shift change would improve her work
environment and alleviate the offensive comments, which she
had mainly attributed to working with Rocque. However, on May
4, 2014, Rocque moved to this daytime shift and resumed
making inappropriate and offensive comments to DiGiacomo.
26, 2014, Officer Underwood told DiGiacomo “if you had
a sexy piece of chocolate like me, you wouldn't be a
lesbian.” (7/17/17 DiGiacomo Dep. (ECF No. 14-15),
PageID #s 303-304.) DiGiacomo reported this comment to
Campbell during the July 23, 2014 meeting regarding the
appeal of her second disciplinary write-up.
19, 2014, DiGiacomo met with LaChance and gave him a detailed
statement regarding a different incident with Officer
Underwood that occurred that same day. As relayed in
DiGiacomo's statement, Underwood called her a
“whiny bitch” after she complained about floor
conditions upon her arrival on shift. When Underwood
indicated an unwillingness to assist with the clean-up work,
DiGiacomo told him he was being “fucking lazy.”
(Pl. Ex. 11 (ECF No. 18-18), PageID #s 462-63.)
July 25, 2014 statement to Staff Sergeant Black acknowledged
meeting with DiGiacomo on July 19 and indicated a discussion
of multiple topics, including DiGiacomo “making
inappropriate comments to Officer Underwood” and proper
procedure for feeding and speaking with inmates. (Pl. Ex. 14
(ECF No. 18-21), PageID # 467.) LaChance's written
statement regarding the interactions between DiGiacomo and
Underwood does not include any mention of DiGiacomo being
subject to inappropriate comments by Underwood. However,
LaChance did take the opportunity to reference another
incident involving DiGiacomo, which was ...