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Digiacomo v. Kennebec County

United States District Court, D. Maine

March 19, 2019

KENNEBEC COUNTY, et al., Defendants.



         This 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.

         Now 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.


         Before 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.

         First, the individual Defendants[1] seek judgment on the Plaintiff's employment discrimination claims (Counts IV, V, VIII, IX & X)[2] 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).

         With 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[3] 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).[4] 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 & X).

         Next, 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 XIII-XV.

         Therefore, 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.


         A. Legal Standard

         Generally, a party is entitled to summary judgment if, on the record before the Court, it appears “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). An issue is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. A “material fact” is one that has “the potential to affect the outcome of the suit under the applicable law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993).

         The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether this burden is met, the Court must view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. See Santoni v. Potter, 369 F.3d 594, 598 (1st Cir. 2004).

         Once the moving party has made this preliminary showing, the nonmoving party must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Triangle Trading Co., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (quotation marks and internal ellipsis omitted); see also Fed.R.Civ.P. 56(e). “Mere allegations, or conjecture unsupported in the record, are insufficient.” Barros-Villahermosa v. United States, 642 F.3d 56, 58 (1st Cir. 2011) (quoting Rivera-Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34, 37 (1st Cir. 1993)); see also Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir. 2011) (“A properly supported summary judgment motion cannot be defeated by conclusory allegations, improbable inferences, periphrastic circumlocutions, or rank speculation.”). “As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment for the moving party.” In re Ralar Distribs., Inc., 4 F.3d 62, 67 (1st Cir. 1993). “However, summary judgment is improper when the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side.” Morales-Melecio v. United States (Dep't of Health and Human Servs.), 890 F.3d 361, 368 (1st Cir. 2018) (quotation marks omitted).

         B. Factual Background

         Defendant Kennebec County[5] 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.

         Defendant 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.

         Within 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, 2017.
• 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 January 2014.
• 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.

         In 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.

         According 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.)

         Against this backdrop, Plaintiff Diedre DiGiacomo (“DiGiacomo”)[6] began working as a corrections officer for Kennebec County on November 4, 2013. As part of her orientation, she received sexual harassment training.[7] 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.

         Digiacomo's Counseling and Disciplinary Action History

         During 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.

         Second, on July 14, 2014, Sergeant Peabody gave DiGiacomo a written reprimand for refusing an “order in” on June 12, 2014.[8] On June 12, DiGiacomo was working a shift when a rash she already had became severe.[9] 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.[10] 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 future.[11]

         Third, 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.)

         DiGiacomo 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.[12]

         DiGiacomo's Work Environment at KCCF

         DiGiacomo's 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.)

         DiGiacomo 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.

         DiGiacomo 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.)

         Soon 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 # 402.)

         In 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.

         On June 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.

         On July 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.)[13]

         LaChance's 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.[14] However, LaChance did take the opportunity to reference another incident involving DiGiacomo, which was ...

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