MACDONALD v. BREWER SCHOOL DEPARTMENT

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

MICHELLE MACDONALD, )

)

Plaintiff, )

)

v. ) Docket No. 1:22-cv-00024-NT

)

BREWER SCHOOL DEPARTMENT, )

et al., )

)

Defendants. )

ORDER ON DEFENDANTS’ MOTIONS TO DISMISS

Before me are the Defendants’ motions to dismiss the Plaintiff’s Complaint.

For the reasons stated below, Defendant Brewer School Department’s motion to

dismiss (ECF No. 8) is GRANTED IN PART and DENIED IN PART. The motion

to dismiss (ECF No. 9) of Defendants Gregg Palmer, Cheri Towle, Brent Slowikowski,

Renita Ward-Downer, Paul Wellman, and Breanne Pelletier (together, the

“Individual Defendants”) is GRANTED IN PART and DENIED IN PART.

FACTUAL BACKGROUND1

The Plaintiff, Michelle MacDonald, has worked as an English teacher at

Brewer High School since 2007. First Am. Compl. ¶¶ 1, 10, 41 (ECF No. 14-1). In

addition to teaching, MacDonald also served as the Curriculum Leader—a

1 Seeing no objection from the Defendants, and in the interest of justice, I GRANT the Plaintiff

leave to amend her Complaint. Pl.’s Mot. to Amend Compl. (ECF No. 14); see Fed. R. Civ. P. 15(a)(2)

(“[A] party may amend its pleading only with the opposing party’s written consent or the court’s leave.

The court should freely give leave when justice so requires.”). These facts are thus drawn from the

allegations in the Plaintiff’s First Amended Complaint (ECF No. 14-1), which I take as true for the

purpose of deciding a motion to dismiss. Alston v. Spiegel, 988 F.3d 564, 571 (1st Cir. 2021).

department chair—for seven years and as the co-advisor for the school’s Gender and

Sexuality Alliance (“GSA”). First Am. Compl. ¶¶ 42, 44. MacDonald has a

transgender child who attends a different school. First Am. Compl. ¶ 43. MacDonald

states that she “is well known for her advocacy on behalf of LGBTQ+[2] students,” and

alleges that, beginning in 2017, she started experiencing pushback, hostility, and

even retaliation in response to that advocacy. First Am. Compl. ¶¶ 1, 44, 47–158.

On January 20, 2017, MacDonald met with Defendant Superintendent Cheri

Towle to discuss concerns about the treatment of transgender students at the school,

including MacDonald’s concern that some teachers were using students’

“deadnames”3 and former pronouns instead of their correct names and preferred

pronouns. First Am. Compl. ¶¶ 16–17, 48. Towle “appeared uncomfortable and

defensive with the conversation” and questioned whether younger students had the

right to go by their preferred gender pronouns because the students could “change

their mind.” First Am. Compl. ¶¶ 50–52.

In March of 2017, students approached MacDonald with concerns that the GSA

was being excluded from the yearbook. First Am. Compl. ¶ 53. MacDonald contacted

Defendant Breanne Pelletier, another English teacher at the school who served as

the yearbook advisor and decided which clubs were included in the yearbook. First

2 LGBTQ+ is “[a]n acronym for ‘lesbian, gay, bisexual, transgender and queer’ with a ‘+’ sign to

recognize the limitless sexual orientations and gender identities used by members of [the LGBTQ+]

community.” Human Rights Campaign, Glossary of Terms, https://www.hrc.org/resources/glossary-of-

terms (last visited Jan. 12, 2023).

3 A “deadname” is “the name that a transgender person was given at birth and no longer uses

upon transitioning.” Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/

deadname (last visited Jan. 12, 2023).

Am. Compl. ¶¶ 24–25, 54. Pelletier told MacDonald that the GSA was not going to be

included in the yearbook because it was a “support group” and did not do “anything

worth taking pictures of.” First Am. Compl. ¶ 55. After MacDonald reported the issue

to the Brewer School Department, Pelletier was told that the GSA must be included

in the yearbook. First Am. Compl. ¶ 56. Subsequently, Pelletier, with whom

MacDonald had previously gotten along, began giving MacDonald “dirty looks,” called

her a “drama queen,” stopped responding to MacDonald’s emails, spoke negatively

about her to students, and was rude and hostile to her in meetings. First Am. Compl.

¶¶ 47, 57.

In June of 2017, MacDonald requested that the GSA advisor position be paid

a stipend, consistent with other club advisors at the school. First Am. Compl. ¶ 58. A

few months later, on September 17, 2017, MacDonald reported to Defendant

Principal Brent Slowikowski some comments made by a colleague regarding this

request. First Am. Compl. ¶¶ 18–19, 59. That colleague, Defendant Paul Wellman,

another English teacher, had expressed that the GSA advisor position should not be

paid because it was “like a religion” and that MacDonald was “influencing students

with her beliefs.” First Am. Compl. ¶¶ 22–23, 59, 61. Wellman also told MacDonald

that he viewed people in the LGBTQ+ community as “unnatural” and as “mutations

of nature.” First Am. Compl. ¶ 61. When reporting the comments, MacDonald also

requested that Slowikowski implement more LGBTQ+ rights and awareness training

for staff. First Am. Compl. ¶ 62.

A few weeks later, on October 6, 2017, Slowikowski intervened in a heated

discussion between MacDonald and Wellman about what MacDonald and some

students perceived as a culture of hostility toward LGBTQ+ people in Wellman’s

classroom. First Am. Compl. ¶¶ 63–66. MacDonald stated that a student had recently

transferred from Wellman’s classroom to MacDonald’s because they had come out and

were uncomfortable with Wellman’s known opposition to LGBTQ+ rights. First Am.

Compl. ¶ 67. MacDonald also said that comments made by Wellman made her

uncomfortable because she was the parent of a transgender child. First Am. Compl.

¶ 69. Slowikowski told MacDonald that she was “too close to the issue” because of her

transgender child. First Am. Compl. ¶ 70.

On January 17, 2018, MacDonald informed Slowikowski that Pelletier was

refusing to respond to her work-related emails and that her conduct appeared to be

in retaliation for MacDonald’s opposition to Pelletier excluding the GSA from the

yearbook. First Am. Compl. ¶ 73. On March 15, 2018, Slowikowski called a meeting

with MacDonald, the assistant principal, and Pelletier about the GSA’s yearbook

photos. First Am. Compl. ¶ 78. Notably, MacDonald’s co-advisor for the GSA was not

asked to attend. First Am. Compl. ¶ 80. At the meeting, Pelletier asserted that

MacDonald was making it difficult to get the necessary pictures of the group for the

yearbook, while MacDonald explained that she had simply asked, for the safety of the

student members of the GSA, that any photographs of the students be taken only

with their consent. First Am. Compl. ¶¶ 79–81. Pelletier stated repeatedly during the

meeting that she did not like MacDonald and there was nothing MacDonald could do

to change her mind. First Am. Compl. ¶ 85. Neither Slowikowski nor the assistant

principal did anything to address Pelletier’s statements. First Am. Compl. ¶ 86.

In April of 2018, MacDonald filed an affirmative action complaint with the

Brewer School Department alleging that she was being subjected to a hostile work

environment. First Am. Compl. ¶ 89. In connection to settling a union grievance with

MacDonald, the school agreed—after multiple requests from MacDonald—to hold an

LGBTQ+ rights training for staff members. First Am. Compl. ¶ 90. The school

administration, however, chose to hold the training after classes ended on the last

day of school in June of 2018—a day when teachers are usually permitted to leave at

12:30 pm. First Am. Compl. ¶¶ 90–91.

During the following school year, MacDonald reported several student-related

incidents to Slowikowski and the vice principal, including combative, anti-LGBTQ+

remarks made by students during class and a student tearing down a “Gender 101”

poster, making a derogatory comment about it, and stomping on it. First Am. Compl.

¶¶ 92, 94–97. Following at least one of those occasions, Slowikowski refused to tell

the student that his behavior was unacceptable. First Am. Compl. ¶ 95. On June 3,

2019, a student—who MacDonald believed had gotten angry during a class

conversation where transgender issues were mentioned—yelled at MacDonald, “Mrs.

MacDonald is a f*ing bitch!” First Am. Compl. ¶¶ 96, 102. MacDonald reported the

incident to the vice principal via email, but it is not clear if any action was taken.

First Am. Compl. ¶ 102.

At the end of the 2018–2019 school year, Pelletier and Wellman spearheaded

an effort to file an internal complaint against MacDonald. First Am. Compl. ¶ 103.

On June 13, 2019, thirteen Brewer School Department employees, including Pelletier

and Wellman, submitted a complaint about MacDonald to Principal Slowikowski.

First Am. Compl. ¶ 105. The complaint accused MacDonald of being hostile toward

religious people and people she does not agree with, and of bullying staff members.

First Am. Compl. ¶ 107. During an internal investigation into the complaint, twenty-

four employees were interviewed. First Am. Compl. ¶ 108. In those interviews in

which a staff member reported a hostile interaction with MacDonald, almost every

example of “hostility” focused on MacDonald’s advocacy related to LGBTQ+ issues.

First Am. Compl. ¶ 109. The results of the internal investigation concluded that she

had not violated “any Brewer School Department policies, rules, or procedures.” First

Am. Compl. ¶ 129. Despite that finding, the interim superintendent wrote to

MacDonald that she had exhibited “unprofessional” behavior and that she was

“ultimately responsible for the way her colleagues perceive her actions.” First Am.

Compl. ¶ 130. The interim superintendent stated that “[w]hile I understand that you

did not realize you were coming across as unprofessional or rude, it is clear that the

perception amongst your colleagues is that, at times, you are overly confrontational.”

First Am. Compl. ¶ 130.

That spring, MacDonald reapplied for the Curriculum Leader position that she

had held for seven years. First Am. Compl. ¶¶ 42, 114–15. The Curriculum Leader

position is a yearly role that comes with a salary enhancement. First Am. Compl.

¶ 114. Though it had never done so before, the school administration decided to

interview different applicants for the job. First Am. Compl. ¶¶ 114, 116. Ultimately,

Defendants Towle, Slowikowski, and Renita Ward-Downer, the school’s Director of

Instruction, hired Pelletier as Curriculum Leader. ¶¶ 20–21, 120–21. Slowikowski

told MacDonald that Pelletier was hired because they “chose to offer the position to a

teacher they believed would be better able to communicate with colleagues about

student needs.” First Am. Compl. ¶ 122. In the winter of 2019, however, Pelletier had

told MacDonald that she received a poor performance evaluation for “communication

issues” with colleagues. First Am. Compl. ¶ 123. MacDonald filed a union grievance

and was ultimately given the position of Co-Curriculum Leader with Pelletier. First

Am. Compl. ¶ 124.

On July 1, 2019, MacDonald requested a room change to the other side of the

building so that she would not have to interact with Wellman and Pelletier on a daily

basis. First Am. Compl. ¶ 125. Slowikowski initially denied her request, but, after his

decision was overruled by the interim superintendent, Slowikowski assigned

MacDonald to a small, special education room, even though larger classrooms were

available and MacDonald had larger class sizes. First Am. Compl. ¶¶ 126–28.

On July 23, 2019, MacDonald told Slowikowski that the transgender flag had

been torn down in the cafeteria and stuffed between the microwave and the wall.

First Am. Compl. ¶ 131. MacDonald received no response and filed an internal

complaint. First Am. Compl. ¶¶ 131–32.

On October 29, 2019, MacDonald filed a complaint with the Maine Human

Rights Commission (“MHRC”) and the Equal Employment Opportunity Commission

(“EEOC”) against Brewer School Department, Wellman, and Pelletier. First Am.

Compl. ¶ 135. After that, colleagues, including Pelletier, Slowikowski, and Ward-

Downer, appeared to shut MacDonald out of curriculum- and school-related

discussions completely. First Am. Compl. ¶¶ 137–40, 142, 145.

Other attempts by MacDonald to get support from the school administration

were also unsuccessful. In March of 2020, for example, MacDonald met with

Defendant Gregg Palmer, who had replaced Towle as the superintendent by that

point, and Slowikowski to discuss the issues she was having with Pelletier, which she

stated were making her job difficult “and her work environment unsafe.” First Am.

Compl. ¶¶ 14–15, 146. According to MacDonald, however, “instead of exercising

reasonable care to prevent and correct promptly the harassing behavior, the Brewer

School Department . . . minimized and dismissed her concerns . . . .” First Am. Compl.

¶ 157. Adding insult to injury, in June of 2020, MacDonald once again applied to be

Curriculum Leader, but, again, Pelletier was hired instead of her. First Am. Compl.

¶¶ 147–49. MacDonald alleges that, to this day, she “continues to experience hostility

from her coworkers, difficulty with communication affecting her ability to perform

her duties, and continues to hear discriminatory comments by students.” First Am.

Compl. ¶ 156.

Earlier this year, MacDonald brought suit against the Brewer School

Department and the Individual Defendants, alleging violations of her state and

federal rights. Compl. (ECF No. 1). Now, the Defendants move to dismiss the

Plaintiff’s Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure. Defendant Brewer School Department moves to dismiss the claims

against it (Counts I and II) and the claims against the school employees in their

official capacities (Counts IV, V, VI, VII, X, XI, XII, and XIII). Def. Brewer School

Department’s Mot. to Dismiss for Failure to State a Claim (“Brewer School Dep’t’s

MTD”) (ECF No. 8). The Individual Defendants move to dismiss the claims against

them in their individual capacities (Counts III, IV, V, VI, VII, VIII, IX, X, XI, XII,

XIII, XIV, and XV). Mot. to Dismiss for Failure to State a Claim of Defs. Gregg

Palmer, Cheri Towle, Brent Slowikowski, Renita Ward-Downer, Paul Wellman, and

Breanne Pelletier (“Individual Defs.’ MTD”) (ECF No. 9).

LEGAL STANDARD

The Defendants have moved to dismiss all counts of the Plaintiff’s Complaint

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Rule 12(b)(6)

requires dismissal when a complaint fails to state a claim upon which relief can be

granted. Fed. R. Civ. P. 12(b)(6). When evaluating a motion to dismiss, I take “as true

all well-pleaded facts alleged in the complaint and draw all reasonable inferences

therefrom in the pleader’s favor.” Alston v. Spiegel, 988 F.3d 564, 571 (1st Cir. 2021)

(quoting Santiago v. Puerto Rico, 655 F.3d 61, 72 (1st Cir. 2011)). “[A] complaint will

survive a motion to dismiss when it alleges ‘enough facts to state a claim to relief that

is plausible on its face.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). A claim is “plausible” if the facts alleged give rise to a reasonable inference

of liability. Id. “Plausible” means “more than merely possible.” Germanowski v.

Harris, 854 F.3d 68, 71 (1st Cir. 2017) (quoting Schatz v. Republican State Leadership

Comm., 669 F.3d 50, 55 (1st Cir. 2012)).

DISCUSSION

I. Statutory Claims

Counts I and II of the Plaintiff’s First Amended Complaint assert claims

against Defendant Brewer School Department pursuant to the Maine Human Rights

Act (the “MHRA”) (Count I) and Title VII of the Civil Rights Act of 1964 (“Title VII”)

(Count II). First Am. Compl. ¶¶ 168–75. Defendant Brewer School Department moves

to dismiss these counts on the grounds that some of the claims are untimely and that

the Plaintiff has failed to allege a cognizable associational discrimination claim,

plausibly plead a claim for hostile environment harassment, or adequately allege a

retaliation claim. Below I first address the issue of timeliness, then I analyze the Title

VII claims, and then I turn to the MHRA claims.

A. Timeliness of Allegations Occurring before December 13, 2018

Both the MHRA and Title VII require that a charge of an unlawful employment

practice must be filed within 300 days after the alleged unlawful employment practice

occurred. See 5 M.R.S. § 4611; 42 U.S.C. § 2000e-5(e)(1). The Brewer School

Department argues that because some of the alleged unlawful events in the First

Amended Complaint occurred more than 300 days prior to when MacDonald filed her

charge with the MHRC, that all such events should be disregarded as time-barred.

Brewer School Dep’t’s MTD 7.4 The Plaintiff responds that otherwise untimely

allegations should be allowed in under the “continuing violation doctrine.” Pl.’s Obj.

to Def. Brewer School Department’s Mot. to Dismiss (“Pl.’s Obj. to Brewer School

Dep’t’s MTD”) 2–3 (ECF No. 12).

“The continuing violation doctrine is an equitable exception to Title VII’s 300-

day time limit and ‘allows an employee to seek damages for otherwise time-barred

allegations if they are deemed part of an ongoing series of discriminatory acts and

there is some violation within the statute of limitations period that anchors the

earlier claims.’ ” Ramsdell v. Huhtamaki, Inc., 992 F. Supp. 2d 1, 18 (D. Me. 2014)

(quoting Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 474 (1st Cir. 2010)); Ayala v.

Shinseki, 780 F.3d 52, 57 (1st Cir. 2015) (“Under the continuing violation doctrine, a

plaintiff may obtain recovery for discriminatory acts that otherwise would be time-

barred so long as a related act fell within the limitations period.” (quoting Tobin v.

Liberty Mut. Ins. Co., 553 F.3d 121, 130 (1st Cir. 2009) (internal quotation marks

omitted))). “However, this doctrine does not apply to ‘discrete acts’ of alleged

discrimination that occur on a ‘particular day,’ ” such as “termination, failure to

promote, denial of transfer,” denial of reasonable accommodation, transfer to another

office, and/or the failure to assign work to an employee. Id.

4 The parties disagree as to whether the 300-day look-back period began on December 13, 2018,

300 days before MacDonald filed her intake questionnaire with the Maine Human Rights Commission

(the “MHRC”), or on January 3, 2019, 300 days before MacDonald filed a complaint with the MHRC.

I need not adjudicate this dispute because the Plaintiff does not allege any relevant conduct that

occurred between December 13, 2018, and January 3, 2019. For simplicity’s sake, I use the earlier

date, December 13, 2018, as the beginning of the look-back period.

The continuing violation doctrine is most obviously applicable to hostile work

environment claims: “[B]ecause hostile work environment claims typically involve

patterns of conduct and so ‘cannot be said to occur on any particular day,’ a court may

consider ‘the entire time period of the hostile environment’ so long as any ‘act

contributing to the claim occured within the filing period.’ ” Lee v. Me. Pub. Emps.

Ret. Sys., No. 1:21-cv-00219-LEW, 2022 WL 612396, at *2 (D. Me. March 2, 2022)

(quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115–17 (2002)). Any

type of discrimination claim, however, could be covered by the doctrine, provided that

the claim is one that “by [its] nature, take[s] time to materialize.” Ayala, 780 F.3d at

58. In all cases, the “[a]llegedly discriminatory or hostile conduct that predates the

filing period must substantially relate to later allegations of abuse such that all of the

allegations can fairly be said to constitute the same actionable . . . practice.” Lee, 2022

WL 612396, at *2 (internal quotation marks and citations omitted).

Here, I find that the continuing violation doctrine covers the Plaintiff’s

discrimination claims. The hostile acts alleged to have occurred prior to the look-back

period are all substantially related to the later allegations of abuse because all share

the common denominator of anti-LGBTQ+ sentiments and hostility toward

MacDonald because of her association with the LGBTQ+ community. Similarly, to

the extent that some of the facts underlying the Plaintiff’s retaliation claim occurred

prior to the look-back period, these facts are asserted to show the motive for the later

retaliatory conduct. Moreover, as relates to both the hostile work environment and

retaliation claims, none of the pre-look-back period events could be said to be a

“discrete act” that would have triggered the running of the statute of limitations. For

these reasons, I conclude that the continuing violation doctrine is applicable to the

Plaintiff’s claims.

B. Title VII Claims

Count II of the Plaintiff’s First Amended Complaint asserts claims of

discrimination, hostile work environment harassment, and retaliation against

Brewer School Department pursuant to Title VII. First Am. Compl. ¶¶ 174–77.

Before diving into these claims, I pause to briefly introduce Title VII, which

prohibits certain types of discrimination and retaliation in the employment context.

Here, the Plaintiff’s Title VII claims implicate three specific provisions of the statute:

42 U.S.C. § 2000e-2(a), 42 U.S.C. § 2000e-2(m), and 42 U.S.C. § 2000e-3(a).

Sections 2000e-2(a) and 2000e-2(m) both fall under the header of “unlawful

employment practices,” and each describes prohibited discriminatory conduct.

Section 2000e-2(a) makes it an unlawful employment practice “to discriminate

against any individual with respect to h[er] compensation, terms, conditions, or

privileges of employment, because of such individual’s . . . sex . . . .” 42 U.S.C. § 2000e-

2(a)(1). By contrast, § 2000e-2(m) states that “an unlawful employment practice is

established when the complaining party demonstrates that . . . sex . . . was a

motivating factor for any employment practice, even though other factors also

motivated the practice.” Id. at § 2000e-2(m). The potential import of the difference in

wording will be explained in more detail below, but for now it suffices to note that a

successful § 2000e-2(m) claim is not entitled to the full spectrum of relief awarded to

claims under Section 2000e-2(a). See id. § 2000e-5(g)(2)(B); Tanca v. Nordberg, 98

F.3d 680, 682 (1st Cir. 1996).

The third relevant provision, § 2000e-3(a), prohibits employer retaliation

against an employee for certain activities. Specifically, § 2000e-3(a) makes it “an

unlawful employment practice for an employer to discriminate against any of [its]

employees . . . because [the employee] has opposed any practice made an unlawful

employment practice by this subchapter, or because [the employee] has made a

charge, testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a).

In the following pages, I evaluate each of the Plaintiff’s Title VII claims in light

of these provisions.

1. Associational Discrimination

The Plaintiff alleges that she was discriminated against “because of sex” in

violation of Title VII. First Am. Compl. ¶ 176. In Bostock v. Clayton County, 140 S.

Ct. 1731 (2020), the Supreme Court recognized that Title VII’s prohibition on sex

discrimination covers discrimination on the basis of sexual orientation and gender

identity. Id. at 1737. The catch here is that the Plaintiff does not allege that she was

discriminated against because of her own sexual orientation or gender identity;

rather, she says that she was discriminated against because of her association with,

and advocacy for, members of the LGBTQ+ community. Pl.’s Obj. to Brewer School

Dep’t’s MTD 3. Defendant Brewer School Department attacks the Plaintiff’s

discrimination claim on the ground that Title VII does not contemplate the type of

associational discrimination asserted by the Plaintiff. Brewer School Dep’t’s MTD 8–

10.

The Defendant is partially correct. Recently, in Frith v. Whole Foods Market,

Inc., 38 F.4th 263 (1st Cir. 2022), the First Circuit acknowledged the viability of

associational discrimination claims under Title VII, but emphasized that “to

constitute unlawful [ ] discrimination under [§ 2000e-2(a)(1)], an employment action

must have been taken ‘because of’ the [protected characteristic] of the individual

plaintiff.” Id. at 271. Thus, relying heavily on a textual reading of the provision, the

First Circuit concluded that it would recognize associational discrimination claims

pursuant to § 2000e-2(a)(1) only where the plaintiff has been discriminated against

because of his, her, or their protected characteristic. Id. at 271–74. For example, a

white male employee married to a Black woman who was fired because of his

employer’s disapproval of interracial marriage was fired because of his race. Id. at

272. Similarly, where an employer fires a gay man because of the belief that men

should not be attracted to other men, that employer discriminates on the basis of the

employee’s sex. Id. By contrast, the Frith Court rejected the argument that if the

plaintiff is advocating on behalf of a person with a protected characteristic, that

characteristic is “imputed” to the plaintiff for the purpose of satisfying § 2000e-

2(a)(1)’s requirement that the discrimination be because of the plaintiff’s protected

characteristic. Id. at 273.

Unfortunately, Frith was decided after the parties completed briefing on these

motions to dismiss. Not having had the benefit of Frith, the Plaintiff’s Title VII

discrimination claim rests partially on the assertion that she can establish a claim

under § 2000e-2(a)(1) by showing that the sexual orientation and gender identity of

the group MacDonald advocates on behalf of can be imputed to her. See Pl.’s Obj. to

Brewer School Dep’t’s MTD 4.5 This argument is clearly foreclosed by Frith and, as

such, the Plaintiff’s § 2000e-2(a)(1) claim must be dismissed.

Frith, however, addressed only a § 2000e-2(a)(1) claim, which, as previously

discussed, makes it an unlawful employment practice to discriminate against any

individual “because of such individual’s . . . sex . . . .” 42 U.S.C. § 2000e-2(a)(1)

(emphasis added). The Frith Court did not address associational discrimination in

the context of § 2000e-2(m), which provides that “an unlawful employment practice

is established when the complaining party demonstrates that . . . sex . . . was a

motivating factor for any employment practice, even though other factors also

motivated the practice.” 42 U.S.C. § 2000e-2(m) (emphasis added). Indeed, the First

Circuit in Frith put considerable weight on the “because of such individual’s

[protected characteristic]” language, and that language is entirely absent from

§ 2000e-2(m). See Frith, 38 F.4th at 271 (“[T]o constitute unlawful racial

discrimination under Title VII, an employment action must have been taken ‘because

of’ the race of the individual plaintiff.”). “[W]here Congress includes particular

language in one section of a statute but omits it in another section of the same Act, it

is generally presumed that Congress acts intentionally and purposely in the disparate

5 The brief filed by the United States similarly urges me to recognize the type of advocacy

discrimination claim rejected by the First Circuit in Frith. See Statement of Interest of the United

States of America 3–7 (ECF No. 17).

inclusion or exclusion.” Tanca, 98 F.3d at 683 (quoting Russello v. United States, 464

U.S. 16, 23 (1983)).

It is therefore possible, as the Plaintiff contends, see Pl.’s Obj. to Brewer School

Dep’t’s MTD 4–5, that the omission of the qualifying phrase “because of such

individual’s” from § 2000e-2(m) indicates that a plaintiff could succeed on an

associational or advocacy theory under that provision without a showing that the

discrimination was “because of” her own protected characteristic. Although caselaw

on this question is sparse, the Fifth Circuit suggested this very idea in Carter v.

Luminant Power Services Co., 714 F.3d 268, 273 (5th Cir. 2013), where the court

mused that Section 2000e-2(m)’s exclusion of the “because of such individual’s”

language could mean that the provision prohibits discrimination based on association

or advocacy for persons in a protected class.

The Defendant offers no retort to the Plaintiff’s argument that her

associational discrimination claim should survive under § 2000e-2(m), and the First

Circuit does not appear to have addressed the issue of whether advocacy-based

associational discrimination claims might succeed in such a situation. Further

briefing might clarify the extent to which the wording differences in various

provisions of Title VII affect protected class status, but based on a textual reading, I

find that the Plaintiff’s associational discrimination claim can proceed under § 2000e-

2(m).

2. Hostile Work Environment Harassment

Count II of the Plaintiff’s First Amended Complaint asserts a hostile work

environment claim against the Brewer School Department under Title VII.6 To

succeed on a hostile work environment claim under Title VII, a plaintiff must

establish:

“(1) that she . . . is a member of a protected class; (2) that she was

subjected to unwelcome . . . harassment; (3) that the harassment was

based upon [protected conduct or traits]; (4) that the harassment was

sufficiently severe or pervasive so as to alter the conditions of plaintiff's

employment and create an abusive work environment; (5) that [the]

objectionable conduct was both objectively and subjectively offensive,

such that a reasonable person would find it hostile or abusive and the

victim in fact did perceive it to be so; and (6) that some basis for employer

liability has been established.”

O’Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001); Rivera v. P.R.

Aqueduct & Sewers Auth., 331 F.3d 183, 189 (1st Cir 2003); see also Noviello v. City

of Boston, 398 F.3d 76, 92 (1st Cir. 2005) (explaining elements of hostile work

environment claim in retaliatory harassment context). Defendant Brewer School

Department challenges the Plaintiff’s hostile work environment claim on the grounds

that the alleged conduct was not severe or pervasive and that the Plaintiff has failed

6 The Plaintiff appears to bring her federal hostile work environment claim pursuant to three

separate provisions of Title VII. See Pl.’s Obj. to Def. Brewer School Department’s Mot. to Dismiss 7

(ECF No. 12) (citing 42 U.S.C §§ 2000e-2(a)(1), 2000e-2(m), and 2000e-3(a)). I have already found that

the Plaintiff’s claims under 42 U.S.C. § 2000e-2(a) must be dismissed because that provision does not

recognize the type of associational discrimination alleged by the Plaintiff. As for the Plaintiff’s claim

under § 2000e-2(m), there is some caselaw that suggests that hostile work environment claims can

never be brought under this provision—which seemingly contemplates both permissible and

impermissible motivations for conduct—because “[a]n employer could never have a legitimate reason

for creating a hostile work environment.” Stacks v. Sw. Bell Yellow Pages, Inc., 27 F.3d 1316, 1326

(8th Cir. 1994). The Defendants, however, do not address this possibility and I therefore reserve

judgment on the issue.

to plead any facts to plausibly support a finding of employer liability. Brewer School

Dep’t’s MTD 11, 13. I analyze each of these issues below.

a. Severity and Pervasiveness

As explained above, a viable hostile work environment harassment claim

requires a showing that “the harassment was sufficiently severe or pervasive so as to

alter the conditions of plaintiff's employment and create an abusive work

environment.” O’Rourke, 235 F.3d at 728; see also Noviello, 398 F.3d at 92 (“In order

to prove a hostile work environment, a plaintiff must show that she was subjected to

severe or pervasive harassment that materially altered the conditions of her

employment.”). “There is no ‘mathematically precise test’ for determining when

harassment becomes sufficiently severe or pervasive.” Pérez v. Horizon Lines, Inc.,

804 F.3d 1, 6 (1st Cir. 2015) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 22

(1993)). Rather, I must “consider all of the ‘attendant circumstances including the

frequency of the discriminatory conduct; its severity; whether it was physically

threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interfered with an employee’s work performance.’ ” Id. (quoting

Pomales v. Celulares Telefónica, Inc., 447 F.3d 79, 83 (1st Cir. 2006)). “A hostile work

environment generally is not created by a ‘mere offensive utterance,’ nor does it arise

from ‘simple teasing, offhand comments, and isolated incidents.’ ” Kosereis v. Rhode

Island, 331 F.3d 207, 216 (1st Cir. 2003) (internal citations omitted). “The thrust of

this inquiry is to distinguish between the ordinary, if occasionally unpleasant,

vicissitudes of the workplace and actual harassment.” Noviello, 398 F.3d at 92.

Here, the Plaintiff has alleged sufficient facts to allow a plausible inference

that the conduct was severe and pervasive, in that it occurred frequently during the

time period described in the First Amended Complaint and it went beyond a mere

offensive utterance. For example, MacDonald describes numerous incidents in which

school employees and administrators declined to respond after students made

inappropriate and combative comments about transgender people in MacDonald’s

classroom, tore down and stomped on a poster about gender, and ripped down a

transgender flag. First Am. Compl. ¶¶ 94–96, 131–32. In addition, on one occasion, a

student yelled at MacDonald that she was a “f*ing bitch.” First Am. Compl. ¶ 102.

Although it is not clear that all of these statements and actions were directed at

MacDonald personally, these allegations do provide support for MacDonald’s

assertion that the school was rife with anti-LGBTQ+ sentiment. Moreover, while

none of these statements or actions were explicitly physically threatening, it is

possible to perceive a threatening undercurrent—especially in the incident where a

student yelled directly at MacDonald.

In addition, the Complaint plausibly alleges that the conduct unreasonably

interfered with MacDonald’s work performance. MacDonald alleges that, at various

points, she was undermined and ostracized by colleagues, denied classroom

resources, and forced out of leadership positions. Cf. O’Rourke, 235 F.3d at 730

(explaining that “work sabotage, exclusion, denial of support, and humiliation[,] can

in context contribute to a hostile work environment”). For example, the First

Amended Complaint alleges that Pelletier refused to reply to work emails from

MacDonald, inappropriately spoke badly of MacDonald in front of students, and

responded to a work-related conflict about the GSA’s yearbook photo by stating that

she did not like MacDonald and there was nothing MacDonald could do to change her

mind. First Am. Compl. ¶¶ 73, 83, 85. The First Amended Complaint further alleges

that Slowikowski assigned MacDonald to a small classroom, despite the fact that

bigger classrooms were available and she had larger class sizes. First Am. Compl.

¶¶ 126–28. Finally, the First Amended Complaint alleges that school leadership

pushed MacDonald out of her long-held role as Curriculum Leader. First Am. Compl.

120–21, 147–49. While more factual development will be necessary to determine how

and to what extent these events impacted MacDonald’s work performance, I find that

MacDonald has plausibly alleged conduct that would unreasonably interfere with the

work of someone in MacDonald’s position.

b. Employer Liability

To make a cognizable hostile work environment harassment claim, the

Plaintiff must also establish employer liability. “A plaintiff must satisfy different

standards for establishing employer liability in a hostile work environment case

depending on whether the harasser is a supervisor or co-employee.” Wilson v.

Moulison N. Corp., 639 F.3d 1, 7 (1st Cir. 2011) (quoting Crowley v. L.L. Bean, Inc.,

303 F.3d 387, 401 (1st Cir. 2002)). “When a supervisor creates a hostile work

environment, the employer is vicariously liable for it, subject, however, to a possible

affirmative defense.” Noviello, 398 F.3d at 94. “When coworkers, rather than

supervisors, are responsible for the creation and perpetuation of a hostile work

environment[,] an employer can only be liable if the harassment is causally connected

to some negligence on the employer’s part.” Wilson, 639 F.3d at 7 (quoting Noviello,

398 F.3d at 95). “In other words, the plaintiff must demonstrate that the employer

knew or should have known about the harassment yet failed to take prompt and

appropriate remedial action.” Id.

In this case, MacDonald seeks to establish employer liability through actions

taken by her supervisors/superiors and by her coworkers. There is no question that

the Brewer School Department would be vicariously liable for the actions allegedly

taken by MacDonald’s supervisors. However, some of the instances that MacDonald

recounts regarding her coworkers cannot support a finding of employer liability

because the school did take prompt and appropriate remedial action. For example,

after MacDonald reported Pelletier’s refusal to include the GSA in the yearbook,

Pelletier was told that she must include the group. First Am. Compl. ¶ 56. And the

school agreed to host an LGBTQ+ rights training for staff, albeit at a non-ideal time

and only after MacDonald requested such a training several times and then filed a

union grievance. First Am. Compl. ¶ 90.

In other instances, though, MacDonald’s superiors and the Brewer School

Department are alleged to have turned a blind eye to pervasive hostility toward

MacDonald. MacDonald reported to the vice principal and to Slowikowski several

different instances of inappropriate and combative behavior by students, which the

school administration allegedly did nothing to address. First Am. Compl. ¶¶ 94–99,

102. In addition, MacDonald reported to Slowikowski that Pelletier was refusing to

respond to her emails, and Pelletier said, in Slowikowski’s presence, that she did not

like MacDonald. First Am. Compl. ¶¶ 73, 85. It does not appear that Slowikowski or

other members of the school administration ever took steps to address Pelletier’s

behavior. These instances of hostility and school inaction suffice to establish employer

liability at this stage, and the Plaintiff may proceed on her hostile work environment

harassment claims.

3. Retaliation

Count II of the Plaintiff’s Complaint also includes a claim for retaliation

pursuant to 42 U.S.C. § 2000e-3(a). To establish a prima facie case of unlawful

retaliation under this provision, a plaintiff must show that “(1) [s]he engaged in

protected conduct; (2) [s]he suffered an adverse employment action; and (3) that a

causal nexus exists between the protected conduct and the adverse action.”

Henderson v. Mass. Bay Transp. Auth., 977 F.3d 20, 39 (1st Cir. 2020) (quoting

Carlson v. Univ. of New Eng., 899 F.3d 36, 43 (1st Cir. 2018)).

“Protected conduct” under § 2000e-3(a) includes “participation activity,” or

direct engagement with Title VII proceedings, as well as “oppositional conduct,” or

“informally opposing an employment activity that might violate Title VII.” See Ray v.

Ropes & Gray LLP, 799 F.3d 99, 107–08 (1st Cir. 2015). Participation activity

includes filing a Title VII complaint, informally filing or defending a charge of

discrimination, testifying as a witness in a proceeding, or helping a coworker assert

her rights. Id. at 107. By contrast, oppositional conduct includes “responding to an

employer’s inquiries about inappropriate behavior, writing letters protesting an

employer’s allegedly unlawful actions, or picketing and boycotting an employer.” Id.

at 108. To show protected oppositional conduct, a plaintiff need only show she

possessed a good faith, reasonable belief that what she opposed was an illegal

employment practice. Id. at 110; Henderson, 977 F.3d at 39 n.25; see also Frith, 38

F.4th at 277 (“[E]mployees who seek the protection of Title VII’s retaliation provision

must allege opposition to some aspect of their employment or the conduct of their

employer.”). Here, the Plaintiff plausibly alleges that she engaged in protected

participation and oppositional conduct by engaging with the Title VII process, filing

internal and external complaints, and opposing conduct she believed, in good faith,

to be illegal—namely discriminatory and hostile conduct aimed at her. See, e.g., First

Am. Compl. ¶¶ 67–68, 89, 124–27, 132, 135, 143, 146, 153–54.

I also consider the second and third prongs of the retaliation analysis—adverse

employment action and causation. “An adverse employment action ‘typically involves

discrete changes in the terms of employment, such as reassignment with significantly

different responsibilities, or a decision causing significant change in benefits.’ ”

Henderson, 977 F.3d at 41 (quoting Garmon v. Nat’l R.R. Passenger Corp., 844 F.3d

307, 314 (1st Cir. 2016)). “[C]ausation may be inferred from a very close temporal

relationship between the protected activity and the adverse action” where the

decisionmaker knew of the plaintiff’s protected conduct at the time the adverse action

was taken. Valazquez-Ortiz v. Vilsack, 657 F.3d 64, 72 (1st Cir. 2011). Here, the

Plaintiff plausibly alleges that she suffered adverse employment actions—such as

losing her role as Curriculum Leader, being moved to a smaller classroom, and being

reprimanded—and that the adverse employment actions were taken because the

people making those decisions resented the Plaintiff’s internal and external

complaints about what she believed to be unlawful employment practices. See, e.g.,

¶¶ 120–21, 128, 130, 148–51.

Defendant Brewer School Department opposes the Plaintiff’s retaliation claim

on the ground that she has failed to allege that any of the parties involved with the

decision not to appoint MacDonald as Curriculum Leader “acted with discriminatory

animus.” Brewer School Dep’t’s MTD 17. However, the Defendant cites no authority

for the proposition that a plaintiff must plead “discriminatory animus” to make out a

cognizable retaliation claim. Even assuming that there is such a requirement,

“ ‘[s]moking gun’ proof of discrimination is rarely available, especially at the pleading

stage.” Grajales v. P.R. Ports Auth., 682 F.3d 40, 49 (1st Cir. 2012). Thus, such proof

is not required to survive a motion to dismiss; rather, “[t]he plausibility threshold

‘simply calls for enough fact to raise a reasonable expectation that discovery will

reveal evidence of the illegal conduct.’ ” Id. (quoting Ocasio-Hernàndez v. Fortuño-

Burset, 640 F.3d 1, 17 (1st Cir. 2011)). Here the Complaint allows for a plausible

inference of discriminatory and/or retaliatory animus on the part of at least some of

the decisionmakers. Specifically, the Complaint alleges that Plaintiff held the

position of Curriculum Leader for seven years, with strong performance evaluations,

and that she was only stripped of the role after she engaged in oppositional conduct.

First Am. Compl. ¶¶ 42, 120–22, 147–51.

Finally, the Defendant’s argument deals only with the decision not to make the

Plaintiff a Curriculum Leader, but the Plaintiff points to other retaliatory actions—

including the room change and the reprimand—to which the Defendant offers no

reply. Accordingly, the Defendant’s motion to dismiss the Plaintiff’s retaliation claims

is denied.

C. MHRA Claims

1. MHRA Claims against Brewer School Department

Count I asserts claims of associational discrimination, hostile work

environment harassment, and retaliation against the Brewer School Department

pursuant to the MHRA. As for the Plaintiff’s associational discrimination claim, the

analysis under the MHRA is far more straightforward than under Title VII. That is,

as the Plaintiff points out, and the Defendant concedes, the MHRA explicitly covers

discrimination “based on [a] person’s known relationship or association with a

member of a protected class.” 5 M.R.S. § 4553(1-D). Moreover, the MHRA does not

incorporate Title VII’s “because of such individual’s” language. See id. at § 4572(1).

Thus, the Plaintiff’s MHRA associational discrimination claim survives at this stage.

As to the hostile work environment and retaliation claims, the “same analytical

framework” applies to each under Title VII and the MHRA. Osher v. Univ. of Maine

Sys., 703 F. Supp. 2d 51, 64 n.12 (D. Me. 2010); see also Roy v. Correct Care Sols., 914

F.3d 52, 62 (1st Cir. 2019) (“A hostile work environment claim under the MHRA is

‘concurrent with Title VII.’ ” (quoting Watt v. UniFirst Corp., 2009 ME 47, ¶ 22, 969

A.2d 897)). As such, for the same reasons that the Plaintiff’s Title VII hostile work

environment and retaliation claims survive, so too do her parallel MHRA claims.

2. MHRA Claim Against Pelletier

In Count III of her Complaint, the Plaintiff asserts an MHRA claim against

Pelletier on the ground that she “interfered with MacDonald’s right to be free from

discrimination and retaliated against MacDonald because she opposed unlawful

practices under the MHRA.” First Am. Compl. ¶¶ 178–79. The Individual Defendants

assert that Count III should be dismissed because individual liability is not available

under the MHRA. Individual Defs.’ MTD 7–8. The Defendants cite Fuhrmann v.

Staples Office Superstore East, Inc., 2012 ME 135, 53 A.3d 1083, where the Maine

Supreme Judicial Court held that, under the MHRA, “there is no individual

supervisor liability for employment discrimination.” Id. ¶ 35. The Plaintiff

acknowledges Fuhrmann’s holding but argues that the case is distinguishable. Pl.’s

Obj. to Individual Defs.’ MTD 4–5.

I agree with the Plaintiff that Fuhrmann does not control here. Fuhrmann

concerned the MHRA’s core antidiscrimination provision, 5 M.R.S. § 4572(1), which

prohibits employment discrimination by an “employer,” defined by the statute as a

“person . . . employing any number of employees” or an agent of the employer whose

“actions are considered the actions of the employer for purposes of liability,” 5 M.R.S.

§ 4553(4). Taking into consideration the text of the statute as well as legislative

intent, the Fuhrmann Court concluded that, “[p]ursuant to [the MHRA’s] statutory

definition of ‘employer,’ there is no individual supervisor liability for employment

discrimination.” Fuhrmann, 2012 ME 135, ¶ 35, 58 A.3d 1083.

In this case, however, the Plaintiff brings her MHRA claim against Pelletier

under 5 M.R.S §§ 4633(1) and 4633(2), the retaliation and interference provisions, not

§ 4572. As the First Circuit recently explained in a case addressing the liability of

non-employer third parties for discrimination that occurs in the workplace:

Fuhrmann never mentioned § 4633, and several significant differences

between § 4572 and § 4633 undercut [the] argument that Fuhrmann’s

holding extends to bar [plaintiff’s] claims. First, § 4572 prohibits

discrimination by an “employer,” and what Fuhrmann interpreted was

the MHRA’s definition of that term. In contrast, § 4633 prohibits

discrimination by any “person.” Second, § 4633 appears in the

miscellaneous section of the MHRA, while Fuhrmann interpreted

provisions in the MHRA’s employment discrimination section. Third,

the provisions have different histories, and the enactment of § 4633

more than twenty years after § 4572 is a strong indication that the

provisions have different intents.

Roy, 914 F.3d at 66 (internal citation omitted).

While the Law Court has yet to address the specific question of whether

individual liability is available under the MHRA’s retaliation and interference

provisions, several pieces of evidence suggest that it is. First and foremost is the text

of the statute: while Fuhrmann centered on the ambiguity of the term “employer,”

§§ 4633(1) and 4633(2) prohibit retaliation and interference by a “person,” a term that

is defined broadly as including “one or more individuals.” 5 M.R.S. § 4553(7). I do not

see how the term “person” is ambiguous, nor am I persuaded that Pelletier would not

be considered a “person” under the plain language of the statute.

Even assuming, arguendo, that the provisions in question are ambiguous, the

MHRC—the agency charged with administering the MHRA—interprets §§ 4633(1)

and 4633(2) as allowing for individual liability. See Me. Hum. Rts. Comm’n,

Individual Liability after Fuhrmann v. Staples (April 11, 2013),

https://www.maine.gov/mhrc/sites/maine.gov.mhrc/files/pdfs/20130411 g.pdf. Under

Maine law, courts “defer to the agency’s interpretation of a statute that is within its

area of expertise unless it is unreasonable, that is, unless the statute plainly compels

a contrary result.” Fuhrmann, 2012 ME 135, ¶ 29, 58 A.3d 1083 (quoting Allied Res.,

Inc. v. Dep’t of Pub. Safety, 2010 ME 64, ¶ 21, 999 A.2d 940).

The Defendants point out other cases in which courts have rejected the

argument that §§ 4633(1) and 4633(2) encompass individual liability, and they urge

me to adopt the same conclusion here. See Reply in Supp. of Individual Defs.’ Mot. to

Dismiss 2–3 (ECF No. 16). But several of those cases were decided before Roy, and

they followed much of the same analysis that the First Circuit rejected there. See,

e.g., United States ex rel. Worthy v. E. Me. Healthcare Sys., No. 2:14-cv-00184-JAW,

2017 WL 211609, at *32 (D. Me. Jan. 18, 2017) (holding that, under Fuhrmann,

“[o]nly an employer can be liable under the MHRA for retaliation . . .”); 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) (holding that individual liability is not

available under §§ 4633(1) and 4633(2) on the ground that Fuhrmann “essentially

addressed” the meaning of the word “person” as used in those provisions).

Various cases decided after Roy continued to employ the same flawed

reasoning, discounting Roy’s persuasive power by reading it narrowly. See Huard v.

Kennebec Cnty., No. 1:16-cv-00473-GZS, 2019 WL 1264864, at *2 n.4 (D. Me. March

19, 2019) (explaining that Roy “open[ed] the door to § 4633 claims ‘against third

parties not alleged to be agents of the employer’ ” but concluding that Roy does not

apply to claims against individual employees)7; Furrow v. Hannaford Bros. Co., LLC,

7 An opinion was issued in a related case that contained an identical analysis of Roy. See

DiGiacomo v. Kennebec Cnty., No. 1:18-cv-163-GZS, 2019 WL 1270927, at *1 n.4 (March 19, 2019).

No. CV-22-0008, at 8 n.4 (Me. Super. Ct., Pen. Cnty., May 16, 2022) (“In Roy, the

federal appellate court, applying Maine law, held that the MHRA provides a remedy

for unlawful employment discrimination that is perpetrated by a third-party entity

to which the plaintiff’s employer has instructed plaintiff to provide services. The

Court does not find Roy to be persuasive in regard to the wholly separate issue of

whether a MHRA plaintiff can hold their own employer’s individual supervisory

employees personally liable for employment discrimination.”). I do not read Roy the

same way. While that case specifically concerned non-employer third-party liability

under the MHRA, its reasoning casts doubt on the notion that Fuhrmann necessarily

addressed the MHRA’s retaliation and interference provisions, or that those

provisions must inevitably be interpreted the same way as the distinctly worded

antidiscrimination provision. And it is difficult to shake the impression that the

courts that have decided that § 4633 does not provide for a claim against an individual

are relying on what they think the statute must mean rather than what it plainly

states.

Whether to recognize individual liability for a coworker like Pelletier is a

difficult decision with significant policy implications, and I am not going to make the

final determination on the briefing that I have before me, which merely scratches the

surface of this knotty area of the law.8 For now, I am following what I believe is the

8 Several key questions are yet to be resolved. For example, the parties have not provided any

analysis of the legislative history of 5 M.R.S. § 4633, and they do not address how remedies available

under the MHRA could apply to individuals. Moreover, the parties do not address whether a mere

coworker—as opposed to a supervisor—can ever be held liable under § 4633(1) and § 4633(2). Nor do

the parties address whether MHRA retaliation and/or interference claims require an adverse

employment action element, and, if so, when, if ever, a coworker’s actions qualify as an adverse

plain meaning of §§ 4633(1) and 4633(2), as guided by the First Circuit’s decision in

Roy, and I accept at this stage that these provisions may provide for individual

liability.

II. Constitutional Claims

Counts IV, V, VI, VII, VIII, IX, X, XI, XII, XIII, XIV, and XV assert violations

of the First Amendment and the Equal Protection Clause against the Individual

Defendants—Gregg Palmer (the superintendent), Cheri Towle (the former

superintendent), Brent Slowikowski (the principal), Renita Ward-Downer (the

director of instruction), Paul Wellman (a fellow English teacher), and Breanne

Pelletier (another fellow English teacher)—pursuant to 42 U.S.C. § 1983. The claims

against Palmer, Towle, Slowikowski, and Ward-Downer (together, the “Official

Defendants”) are brought in these Defendants’ official capacities and in their

individual capacities, while the claims against Wellman and Pelletier are brought

only in those Defendants’ individual capacities. First Am. Compl. 1.

In general, “Section 1983 ‘affords a private right of action in favor of persons

whose federally assured rights are abridged by state actors.’ ” Parker v. Landry, 935

F.3d 9, 14 (1st Cir. 2019) (quoting Kando v. R.I. State Bd. of Elections, 880 F.3d 53,

58 (1st Cir. 2018)). But the distinction between an official-capacity and individual-

capacity suit in § 1983 is a meaningful one: while an individual-capacity suit asserts

liability against the individual, an official-capacity suit “is tantamount to a suit

employment action. Further factual development and briefing on these issues may help clarify whether

the Plaintiff’s MHRA claim against Pelletier is a viable one.

against the entity of which the official is an agent,” and thus attaches liability to the

municipal entity. Burrell v. Hampshire Cnty., 307 F.3d 1, 7 (1st Cir. 2002). Here, the

Defendants have filed two separate motions to dismiss to address the Plaintiff’s two

different types of claims. Defendant Brewer School Department moves to dismiss the

official-capacity claims against the Official Defendants, while the Individual

Defendants move to dismiss the individual-capacity claims against themselves.

Below, I analyze the Plaintiff’s constitutional claims. First, I consider whether

the Plaintiff has asserted sufficient facts to establish that a First Amendment

violation occurred. I then address the issues of municipal liability and qualified

immunity because the Defendants raised these potential defenses in the context of

the Plaintiff’s First Amendment claims. Second, I consider whether the Plaintiff has

successfully alleged an equal protection claim.

A. First Amendment

1. Alleged Violations

“Government actors offend the First Amendment when they retaliate against

an individual for constitutionally protected speech.” González-Droz v. González-

Colón, 660 F.3d 1, 16 (1st Cir. 2011).9 “In order to establish a prima facie case of First

Amendment retaliation, a plaintiff must show: (1) that ‘he or she engaged in

constitutionally protected conduct’; (2) that ‘he or she was subjected to an adverse

action by the defendant’; and (3) that ‘the protected conduct was a substantial or

9 The First Amendment applies to the states through the Due Process Clause of the Fourteenth

Amendment. See Gitlow v. New York, 268 U.S. 652, 666 (1925).

motivating factor in the adverse action.’ ” Pollack v. Reg’l Sch. Unit 75, Docket No.

2:13-cv-109-NT, 2016 WL 335860, at *5 (D. Me. Jan. 27, 2016) (quoting D.B. ex rel.

Elizabeth B. v. Esposito, 675 F.3d 26, 41 (1st Cir. 2012)), vacated on other grounds,

660 Fed. Appx. 1 (1st Cir. 2016).

In this case, the Plaintiff asserts that the Individual Defendants violated her

First Amendment rights “by failing to stop the retaliation against MacDonald for

complaining about matters of public concern” and by “retaliating against MacDonald

for complaining about matters of public concern.” First Am. Compl. ¶¶ 181, 183, 185,

187, 189, 191. The Defendants argue that the Plaintiff’s First Amendment claims

should fail because she did not engage in constitutionally protected speech activity

and she has not shown that any of the Individual Defendants took an adverse

employment action against her that was motivated by that protected speech activity.

Brewer School Dep’t’s MTD 18–19; Individual Defs.’ MTD 11–13.

In evaluating the Plaintiff’s First Amendment claims, I turn first to the

protected-conduct prong. A public employee’s speech is protected by the First

Amendment when “the employee spoke as a citizen and . . . the speech was on a matter

of public concern.” Curran v. Cousins, 509 F.3d 36, 45 (1st Cir. 2007). “Speech involves

matters of public concern ‘when it can be fairly considered as relating to any matter

of political, social, or other concern to the community, or when it ‘is a subject of

legitimate news interest; that is, a subject of general interest and of value and concern

to the public.’ ” Lane v. Franks, 573 U.S. 228, 241 (2014) (quoting Snyder v. Phelps,

562 U.S. 443, 453 (2011)). “If [a] plaintiff’s speech is not on a matter of public concern,

there is no First Amendment cause of action. . . . Therefore, it is vital for any claim to

clearly present the protected activity on which it is premised.” Rosaura Bldg. Corp.

v. Mun. of Mayagüez, 778 F.3d 55, 66–67 (1st Cir. 2015).

Here, the Plaintiff asserts that her “LGBTQ+ advocacy, protected oppositional

conduct and reporting, WPA-protected activity, [and] MHRC and EEOC complaints

raised matters of public concern.” First Am. Compl. ¶ 159. In particular, the

Plaintiff’s Complaint alleges that MacDonald repeatedly advocated for LGBTQ+

students and on LGBTQ+-related issues, that she reported what she perceived to be

discriminatory conduct on numerous occasions, including conduct that she believed

to be directly targeting herself and students, and that she filed a complaint of

employment discrimination with the relevant state body. These allegations easily

satisfy the first prong of a prima facie First Amendment retaliation suit—it is well-

established that speech regarding discrimination and/or discriminatory practices can

be protected citizen speech that raises matters of public concern. See, e.g., Roy, 914

F.3d at 73 (finding that an employee’s complaints “made to supervisors and public

officials about sexual harassment and safety at public agencies can be protected

citizen speech on matters of public concern”); Cannell v. Corizon, LLC, Docket No.

1:14-cv-405-NT, 2015 WL 8664209, at *9 (D. Me. Dec. 11, 2015) (holding that

complaints of racially derogatory remarks involve a matter of public concern); King

v. Me. Dep’t of Corr., No. 1:13–cv–00163–JDL, 2015 WL 2092526, at *5 (D. Me. May

5, 2015) (finding that complaints of sexual orientation discrimination are a matter of

public concern). Moreover, the fact that much of the Plaintiff’s conduct took place

internally at Brewer High School does not negate the public implications of the

speech. See id. at *5 n.6 (“[S]tatements made only inside the workplace may support

a claim [for First Amendment retaliation] even though they are not shared with the

general public.”).

The next issue is whether any or all of the Individual Defendants took an

adverse employment action against the Plaintiff that was substantially motivated by

the Plaintiff’s protected activity. Here, I look to the claims asserted against each

Individual Defendant:

Gregg Palmer, Cheri Towle, and Renita Ward-Downer: The Plaintiff alleges

that Ward-Downer, Superintendent Towle in 2019, and Superintendent Palmer in

2020 each participated in the decisions not to select the Plaintiff as Curriculum

Leader because of the Plaintiff’s protected speech activities. First Am. Compl. ¶¶ 121,

150. Put another way, the Complaint alleges that Ward-Downer, Towle, and Palmer

denied the Plaintiff a benefit in retaliation for her exercise of First Amendment

rights. This is precisely the type of adverse conduct that the First Amendment is

meant to guard against. See Barton v. Clancy, 632 F.3d 9, 23 (1st Cir. 2011) (“As a

general matter, the government may not deprive an individual of a ‘valuable

government benefit’ in retaliation for his or her exercise of First Amendment rights.”)

(quoting Lynch v. City of Boston, 180 F.3d 1, 13–14 (1st Cir. 1999)). Furthermore,

while there is no direct, smoking-gun evidence of Palmer’s, Towle’s, or Ward-

Downer’s unlawful motivations, the Plaintiff’s alleged facts do support an inference

that the stated reason Pelletier got the job instead of her—Pelletier’s superior

communication skills—was disingenuous, given that Pelletier had previously

received a poor performance evaluation because of her “communication issues.” First

Am. Compl. ¶¶ 122–23. At this stage, such evidence suffices to support the Plaintiff’s

First Amendment retaliation claims against Palmer, Towle, and Ward-Downer.

Brent Slowikowski: Principal Slowikowski was also allegedly involved with the

decision not to rehire the Plaintiff as Curriculum Leader, and, for the reasons

explained above, the Plaintiff has thus stated a viable First Amendment retaliation

claim against him. In addition, however, the Plaintiff alleges that Slowikowski

assigned the Plaintiff to a small classroom when she asked to be moved to a different

part of the building to prevent interactions with hostile coworkers, even though larger

classrooms were available. First Am. Compl. ¶¶ 126–28. I find that this action, too,

constitutes an adverse action that can support a First Amendment retaliation claim.

See Lockridge, 597 F.3d at 472 (“We think that, under certain circumstances, the

denial of an employee’s request for office space could dissuade a reasonable person

from making or supporting a charge of discrimination.”). While discovery may shed

more light on the motivations for Slowikowski’s actions and the effect that they had

on the Plaintiff, at this stage I am satisfied that the Plaintiff has stated a viable First

Amendment claim against Slowikowski.

Breanne Pelletier and Paul Wellman: Finally, the Plaintiff alleges that

Pelletier and Wellman each engaged in hostile behavior aimed at MacDonald.

According to the Plaintiff’s First Amended Complaint, after MacDonald insisted that

the GSA be included in the yearbook, Pelletier began giving MacDonald “dirty looks,”

called her a “drama queen,” stopped responding to MacDonald’s work-related emails,

spoke negatively about her to students, and was rude and hostile to her in meetings.

First Am. Compl. ¶¶ 47, 57. And, after MacDonald expressed concern about

Wellman’s treatment of LGBTQ+ students and issues, Wellman joined Pelletier in

filing an internal complaint against MacDonald. First Am. Compl. ¶¶ 103–07. I need

not address whether these activities constitute adverse actions sufficient to support

a First Amendment retaliation claim; as explained below, I find that Pelletier and

Wellman are entitled to qualified immunity. See Mitchell v. Miller, 790 F.3d 73, 77

(1st Cir. 2015) (explaining that “courts have the discretion, where warranted, to

proceed directly to the second prong” of the qualified immunity analysis without

determining whether a constitutional violation necessarily occurred).

2. Municipal Liability

As explained above, an official-capacity suit “is tantamount to a suit against

the entity of which the official is an agent.” Burrell, 307 F.3d at 7. Importantly,

however, municipal entities “are not vicariously liable under section 1983 for the

actions of their non-policymaking employees[; t]hey are responsible only for their own

unconstitutional acts.” Haley v. City of Boston, 657 F.3d 39, 51 (1st Cir. 2011)

(internal citation omitted). “Thus, a plaintiff who brings a section 1983 action against

a municipality bears the burden of showing that, through its deliberate conduct, the

[municipal entity] was the moving force behind the injury alleged.” Id. (internal

quotation marks and emphasis omitted). Such a plaintiff must show that “the entity

followed a policy or custom” that was unconstitutional. Burrell, 307 F.3d at 7. “When

an official policy exists that is unconstitutional on its face, the inquiry is

straightforward.” Alston v. Town of Brookline, 308 F. Supp. 3d 509, 533 (D. Mass.

2018). “A plaintiff can establish the existence of an official policy by showing that the

alleged constitutional injury was caused . . . by a person with final policymaking

authority.” Welch v. Ciampa, 542 F.3d 927, 941 (1st Cir. 2008). In the absence of an

official policy, “[a] plaintiff may also show an ‘unconstitutional municipal custom so

well settled and widespread that the policymaking officials of the municipality can be

said to have either actual or constructive knowledge of it yet did nothing to end the

practice.’ ” Fincher v. Town of Brookline, 26 F.4th 479, 485 (1st Cir. 2022) (quoting

Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir. 1989)).

In this case, the Plaintiff does not specify on what grounds she asserts

municipal liability, but there are two potential avenues for such liability evident in

her Complaint. The first possibility is that at least some of her injuries were caused

by a person or persons with final decision-making authority. For example, it is

possible that Palmer and Towle, as superintendents, had final policymaking

authority over the Curriculum Leader position, and/or that Slowikowski, as principal,

had final policymaking authority over classroom assignments. See, e.g., Charette v.

Me. Sch. Admin. Dist. No. 27, No. Civ.05-20-B-W, 2005 WL 914763, at *4 (D. Me. Jan.

31, 2005) (recommending denial of motion to dismiss because the plaintiff adequately

“allege[d] that it is the [municipal entity’s] custom and usage to place final

policymaking authority in [the superintendent]—its top administrator—and that it

in fact delegated that authority to [the superintendent]”), R. & R. adopted by 2005

WL 1126853. But see, e.g., Craig v. Me. Sch. Admin. Dist. # 5, 350 F. Supp. 2d 294,

297 & n.2 (D. Me. 2004) (granting motion to dismiss where the plaintiff did not allege

that the school board “specifically delegated its policymaking functions to” the

superintendent). Defendant Brewer School Department does not address the

question of liability based on final policymaking authority, and I therefore leave for

another day whether this is a viable theory.

The second possibility is that the Plaintiff’s injuries were a result of a

widespread custom of constitutional violations among Brewer School Department

employees and officials. Defendant Brewer School Department attacks this basis for

municipal liability on the ground that the Plaintiff has failed to establish a causal

connection between a school policy or custom and the Plaintiff’s injuries. Brewer

School Dep’t’s MTD 19. But the facts alleged by the Plaintiff, viewed in the light most

favorable to her, do support an inference that there was a widespread practice of

hostility and discrimination toward members of the LGBTQ+ community as well as

a practice of retaliation against those advocating on behalf of that community. In

addition, the Complaint supports a plausible inference—based on the fact, for

example, that the Plaintiff repeatedly reported hostile behavior to her superiors—

that the Brewer School Department could be said to have actual or constructive

knowledge of the culture at the school and yet did little or nothing to end the practice.

See Bordanaro, 871 F.2d at 1156. Of course, there are facts that may also work

against the Plaintiff on this point, such as the fact that the school did eventually hold

an LGBTQ+ rights training for staff. At this stage, however, I am satisfied that the

Plaintiff’s suit against the Brewer School Department—vis-á-vis her claims against

the Official Defendants—should live to see another day.

3. Qualified Immunity

Even if the Plaintiff has adequately alleged the elements of her First

Amendment retaliation claim, the Individual Defendants may nonetheless be entitled

to qualified immunity. “Qualified immunity shields a public official from suit when

he [or she] makes a decision that, even if constitutionally deficient, reasonably

misapprehends the law governing the circumstances he [or she] confronted.” Charette

v. St. John Valley Soil & Water Conservation Dist., 332 F. Supp. 3d 316, 363–64 (D.

Me. 2018) (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)). “Therefore, to

determine whether a defendant is entitled to qualified immunity, a court must

consider whether the constitutional right the defendant allegedly violated was

‘clearly established’ at the time of the violation.” Id. at 364 (quoting Morales v.

Chadbourne, 793 F.3d 208, 220 (1st Cir. 2015)). “A right is ‘clearly established’ if ‘the

state of the law at the time of the alleged violation gave the defendant fair warning

that his particular conduct was unconstitutional.’ ” Guadalupe-Báez v. Pesquera, 819

F.3d 509, 517 (1st Cir. 2016) (quoting Maldonado v. Fontanes, 568 F.3d 263, 269 (1st

Cir. 2009)).

In this case, qualified immunity does not protect Defendants Palmer, Towle,

Slowikowski, or Ward-Downer from suit on First Amendment grounds because it is

clearly established that the First Amendment protects complaints about

discrimination, and that retaliation for such speech is unlawful. See Roy, 914 F.3d at

73 (“Complaints like Roy’s made to supervisors and public officials about sexual

harassment and safety at public agencies can be protected citizen speech on matters

of public concern.”); Cannell, 2015 WL 8664209, at *9 (“Cannell’s allegations of daily

offensive racially derogatory remarks—made by state employees at a state-operated

facility—involve a matter of public concern.”); King, 2015 WL 2092526, at *5 (finding

that complaints of sexual orientation discrimination are protected speech). Moreover,

while a recent First Circuit case casts doubt on the denial of qualified immunity

where an employee was retaliated against for purely internal complaints of

discrimination, see Roy, 914 F.3d at 73, in this case the Plaintiff’s complaints were

made internally and externally—both to various school officials and to the relevant

state agency.

I find, however, that Defendants Wellman and Pelletier are entitled to

qualified immunity. It is true that “even ‘relatively minor events’ can give rise to

liability for retaliation under § 1983” and that “a campaign of harassment can support

a First Amendment retaliation claim if the harassment would deter a reasonably

hardy individual in the exercise of his or her First Amendment rights.” Barton, 632

F.3d at 30 (internal citation omitted). But qualified immunity is still appropriate

where a defendant lacks “fair warning that his particular conduct was

unconstitutional.” Id. (quoting Maldonado, 568 F.3d at 269). In this case, Wellman

and Pelletier are alleged to have made rude and offensive comments to MacDonald

and to have jointly filed an internal complaint against her, based largely, it seems,

on their annoyance with MacDonald’s advocacy for LGBTQ+ students and rights.

That said, it is not clear that a reasonable official in Wellman’s or Pelletier’s shoes

would have understood that his or her conduct would deter a reasonably hardy

individual in the exercise of her rights. Counts VIII and IX, asserting First

Amendment claims against Wellman and Pelletier, are therefore dismissed.

B. Equal Protection

The Fourteenth Amendment provides that no State shall “deny to any person

. . . the equal protection of the laws.” U.S. Const. amend. XIV. To state a claim for a

violation of her rights under the Equal Protection Clause, a plaintiff must allege that

(1) she “was treated differently than others similarly situated,” and (2) “such

difference was based on an impermissible consideration, such as race.” Ayala-

Sepúlveda v. Mun. of San Germán, 671 F.3d 24, 32 (1st Cir. 2012) (quoting Lopera v.

Town of Coventry, 640 F.3d 388, 402 (1st Cir. 2011)). “Some evidence of actual

disparate treatment is a threshold requirement of a valid equal protection claim.” Id.

(internal quotation marks omitted).

In this case, the Plaintiff asserts that Defendant Brewer School Department

and each of the Individual Defendants violated her rights to equal protection by

“discriminating against MacDonald because of sex, failing to stop the retaliation

against MacDonald for complaining about sex discrimination, and by [themselves]

retaliating against MacDonald for complaining about sex discrimination.” First Am.

Compl. ¶¶ 193, 195, 197, 199, 201, 203. The Defendants seek dismissal of the

Plaintiff’s equal protection claims on the ground that she has failed to allege facts

that establish the threshold requirement of actual disparate treatment. See Brewer

School Dep’t’s MTD 20; Individual Defs.’ MTD 8.

The Plaintiff’s Complaint, however, alleges two incidents that support her

equal protection claim. First, the Plaintiff alleges that Pelletier was chosen over

MacDonald for the Curriculum Leader position, even though the Plaintiff had held

that position for years (with consistently strong performance evaluations) and

Pelletier had received a poor performance review for communication issues. First Am.

Compl. ¶¶ 42, 120, 123, 148–49. Second, the Plaintiff alleges that she was subjected

to an internal investigation and labeled “unprofessional” because of her LGBTQ+

advocacy and association with LGBTQ+ individuals. First Am. Compl. ¶¶ 103–11,

129–30, 166. Viewed in the light most favorable to the Plaintiff, I find that these

allegations suffice to establish that she was denied a job, subjected to special scrutiny,

and ultimately treated differently than others similarly situated because of her

association with and advocacy for LGBTQ+ individuals.

CONCLUSION

For the reasons stated above, the Court GRANTS IN PART and DENIES IN

PART the Defendants’ motions to dismiss. Defendant Brewer School Department’s

motion is GRANTED IN PART as to Count II, insofar as that count asserts a claim

under 42 U.S.C. § 2000e-2(a). The remaining claims asserted in Count II survive. The

Individual Defendants’ motion is GRANTED as to Counts VIII and IX. Both motions

are DENIED as to all other counts.

SO ORDERED.

/s/ Nancy Torresen

United States District Judge

Dated this 12th day of January, 2023.