PERKEREWICZ v. SUGARLOAF MOUNTAIN CORPORATION

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

JESSICA M. PERKEREWICZ, )

)

PLAINTIFF )

)

V. ) CIVIL NO. 1:20-CV-273-DBH

)

SUGARLOAF MOUNTAIN )

CORPORATION, ET AL., )

)

DEFENDANTS )

DECISION AND ORDER ON DEFENDANTS’ MOTION

FOR PARTIAL SUMMARY JUDGMENT

INTRODUCTION

The plaintiff asserts that her former employer, a supervisor, and a

subordinate created a hostile work environment, engaged in or permitted sex

discrimination and sexual assault against her, and retaliated against her for

complaining about her treatment. (Not all counts apply to all defendants.) The

defendants have moved for summary judgment1 on the plaintiff’s common law

tort claims, arguing that they are either preempted by the exclusivity of the

Workers’ Compensation Act, or are redundant of her statutory claims.2 The

1 The defendants’ only statement of material fact is that the employer has workers’ compensation

insurance coverage, which the plaintiff admits. Defs.’ Statement of Material Fact (ECF No. 20).

In responding to the motion, the plaintiff states additional facts about the underlying incident.

Pl.’s Opposing Statement of Material Facts and Additional Facts (ECF No. 24). For purposes of

the summary judgment motion, the defendants do not dispute them. Defs.’ Reply to Pl.’s

Statement of Additional Material Facts (ECF No. 28).

2 Because the plaintiff amended her complaint after the summary judgment motion was filed,

some of the arguments no longer apply. See Defs.’ Reply at 1 n.1 (ECF No. 27). The plaintiff

withdrew her separate count seeking punitive damages, and she created a new Count III, a sex

discrimination claim. References to Counts in this decision are to this second Amended

plaintiff’s statutory claims (both state and federal) of sexually hostile

environment, retaliation, and sex discrimination (Counts I, II, and III) will

continue.3 But I GRANT summary judgment against the plaintiff on her tort

claims (Counts IV through VIII).4

ANALYSIS

The plaintiff alleges serious mistreatment based upon her sex and her

complaints; her state and federal statutory claims, Counts I through III, will

proceed to trial. Those claims are not precluded by the Workers’ Compensation

Act and the defendants do not argue otherwise.5

What they do argue is that the plaintiff is limited to her statutory claims

and I agree. The Second Amended Complaint confusingly adds additional counts

(IV through VIII) where she repeats the statutory violations, but seems to claim

common law tort damages as well. Her briefing on the motion confirms that

such was her intent.

The Maine Law Court has made clear that where there is Workers

Compensation Act insurance coverage (there is here), no tort relief is available.6

Complaint, filed Nov. 13, 2020 (ECF No. 26), referred to here as the “Second Amended

Complaint.”

3 Count I is sexually hostile work environment under both the Maine Human Rights Act and Title

VII of the Federal Civil Rights Act. Count II is retaliation under both statutes. Count III is sex

discrimination that claims, in addition to hostile work environment, that the plaintiff “was treated

less favorably than her male counterparts.” Second Am. Compl. ¶ 62.

4 Count IV alleges sexual assault by her supervisor. Count V alleges sexual harassment. Count

VI alleges harassment that goes beyond sexual harassment and alleges physical assault by an

employee under the plaintiff’s supervision. Count VII alleges intentional infliction of emotional

distress. Count VIII alleges negligent infliction of emotional distress.

5 The defendants do seek summary judgment on Count III, but I conclude that, as reworked by

the plaintiff, it contains a claim of disparate treatment based on sex that is more than Count I’s

sexually hostile work environment claim.

6 The Maine Workers’ Compensation Act provides that such an employer “is exempt from civil

actions . . . at common law,” 39-A M.R.S.A. § 104, and the employee “is deemed to have waived

“It is much too late to argue that [these sections] do not bar common law tort

actions against employers who have undertaken the obligations of the Workers’

Compensation Act.” Beverage v. Cumberland Farms Northern, Inc., 502 A.2d

486, 488-89 (Me. 1985). This Court has applied that conclusion in an

employment discrimination case. Frank v. L.L. Bean, Inc., 352 F. Supp. 2d 8,

11-12 (D. Me. 2005), applying the holding of Knox v. Combined Ins. Co. of Am.,

542 A.2d 363 (Me. 1988) (sexual assault and sexual harassment torts may be

compensable under the Workers’ Compensation Act if sufficiently work-related).

The fact the conduct is intentional does not change that conclusion. See

Searway v. Rainey, 1998 ME 86, ¶¶ 1, 3, 709 A.2d 735; Li v. C.N. Brown Co.,

645 A.2d 606, 608 (Me. 1994).

In addition, the federal and state anti-discrimination statutes have their

own remedies, and the Law Court has made clear that when there is a statutory

right and remedy, a plaintiff cannot seek common law relief. “[W]here a statutory

right and remedy are provided, there is no need to recognize a redundant tort.”

Bard v. Bath Iron Works Corp., 590 A.2d 152, 156 (Me. 1991); accord Paquin v.

MBNA Mktg. Sys., Inc., 195 F. Supp. 2d 209, 211 (D. Me. 2002) (rejecting as

redundant a common law tort for negligence in a discrimination case).

The plaintiff has one count (Count VI) that is independent of the anti-

discrimination statutes, but the incidents she alleges there occurred in the

course of her employment and therefore are subject to the exclusivity of Workers’

Compensation Act insurance coverage.

She also argues that some inappropriate email messages were sent to her

Compensation Act exclusivity. Pl.’s Opp’n at 5 (ECF No. 23). She does not

include that assertion in her statement of material facts, and I could therefore

ignore it. See D. Me. Loc. R. 56(f). I do find it in her Declaration, but the conduct

seems clearly related to work: “Throughout my time working at Sugarloaf with

Upham as my supervisor, Upham would also send me inappropriate, sexually-

charged text messages, both while at work and outside of work . . . .” Pl.’s Decl.

at 2 ¶ 16 (ECF 24-1). In any event, if some of the messages are not covered by

the exclusivity of the Workers’ Compensation Act because they were received at

home, they certainly are covered by the anti-discrimination statutes. A tort

remedy therefore would be redundant.

The defendants’ motion for summary judgment on Counts IV through VIII

is GRANTED.

SO ORDERED.

DATED THIS 23RD DAY OF DECEMBER, 2020

/S/D. BROCK HORNBY

D. BROCK HORNBY

UNITED STATES DISTRICT JUDGE