The opinion
FILED AND ENTERED
OQURT
STATE OF MAINE BUPERIOR © SUPERIOR COURT
PENOBSCOT, SS. MAY 30 200) Decket No. CV-2000-17
boyy ”
A - pee - to patos
GLENNIS A. McSO LBENOBSOOT COUNTY
Plain thet, ’
}
)
V. ) RDER ON MOTION
} A SUMMARY J MENT
INHABITANTS OF THE )
TOWN OF CARMEL, )
Detendant. )
This matter is before the Court on Plaintiff's Motion for Partial
Summary Judgment (Count IV), Defendant's Cross-Motion for Partial
Summary Judgment pursuant to M.R. Civ. P. 56(b); and Defendant's Motion
for Summary Judgment. For the following reasons, Plaintiff's Motion for
Partial Summary Judgment is DENIED, Defendants Cross-Motion for
Partial Summary Judgment is GRANTED; and Defendants’ Motion is DENIED
in part and GRANTED in part.
FACTS
Glennis McSorley's complaint alleges as follows: Count I - Age
Discrimination; Count II - Wrongful termination because of sex; Count Ill -
Wrongful termination in violation of 26 M.R.5.A. § 833, Maine
Whistieblowers’ Protection Act (“MWPA") and Maine Human Rights Act
(MHRA; Count IV - Requests the Court to. Order Defendant to hold a
hearing pursuant to 30-A M.R.S.A. § 2633.
As early as 1950, the Town of Carmel had a Town Manager. The
Selectmen appointed McSorley as Town Manager in July, 1968 and yearly
thereafter. Plaintiff has alsa held the positions ef Tax Collector, Town
Treasurer, Agent to the Overseers Report, Road Commissioner, and
Registrar of Voters. On October 30, 1995, the Selectmen issued Glannis
McSorley {(“McSorley”) a warning letter as to her performance as Town
Manager and Road Commissioner. On April 28, 1997, McSorley signed an
employment contract with the town.’ McSorley Dep. at 28; Dep. Ex. 10.
The Contract provides for termination and severance pay." On May 5, 1997
1. The contract provided for a performance evaluation once a year
McSorley also received her town manager evaluations April 28, 1997. Her
2.87 rating fell between "2. Meets work performance standards,” and "3.
Marginally meets work performance standards.” The rating scale was 1
through 4 with 4 being the lowest. ({McSorley Dep. p. 16, Dep. Ex. 7}.
2, A. The Board may, in it's sole discretion, terminate this agreement
without cause. In the event of termination of the agreement without
cause, the Town Manager, shall be entitled to a lump sum payment of
thrae (3) months salary, less the appropriate deductions for
withholding taxes and the like.
B. The Town Manager may be removed or suspended from office for
cause pursuant to the provisions of 30-A M.R.S.A., Section 2633, or
such authority as may be in effect at the time of suspension or
removal. |f the Town Manager is removed for cause, he/she shall
not be entitled to any severance pay or benefits, except for
accumulated vacation time. . ..
McSorley received an “Annual Goal Setting” document setting out the
Selectmen's expectations. McSoriey received a written “warning of
unsatisfactory performance .. ..” on February 9, 1998 concerning her
efforts in obtaining an engineering estimate for bridge widening and
repairs. Her April 20, 1998 performance rating was 3.11.
MeSorley signed a second Employment Agreement on May 8, 1998.
That agreement stated that it commenced on May 6, 1998 and “shall
continue for a period of six (6} months, expiring on November 6, 1998,
unless sooner terminated pursuant te the terms of this Agreement.”* On
November 2, 1998, the Board voted to postpone her performance review
until November 9, 1998.* After the performance review on November 9,
1998, the Selectmen gave her a performance rating of 3.04. After
3. The Agreement provided for performance evaluations and included
a memo “Goals and Time Tables for Town Manager.” McSorley Dep. at 9-
12, Dep. Ex. 1 and 2.
4. Chairman, John Luce, asked Town Manager Glennis
McSorley, if she would stay until the issue is settled. (Town
Manager's Contract expires Friday, 11/06/98.) Glennis McSorley,
Town Manager, asked that the contract be legally extended.
After discussion, Glannis MeSorley, Town Manager said she
would be willing to work Monday, Nevember 09, 1998, one
business day after her contract expires.
_ Minutes Selectmen's Meeting, November 2, 1998.
A
discussing the evaluation, the Board voted to contact an attorney to draft |
a@ preliminary resolution. Selectman Luce then asked if she “was going to
stay on untit the matter was resolved.” She responded “she was not sure
what she is going to do.” Minutes Selectmen’s Meeting, November 9, 1998.
Tam Johnston, Eso.’s November 13, 1998 letter advised the town that
“[w]hile Ms. McSorley might claim that there was an expectation of
reappointment after six months which establishes a property interest in
reappointment and requires a due process hearing, we believe that the
signing of the six month contract, as well as the conditions under which it
was issued, made it apparent that McSorley could not expect to be
reappointed after the six month term,” and advised they had three choices
if it “wishes that Ms. McSorley not serve any longer as Town Manager.”
The options include:
(I) they could grant Ms. McSorley “a just cause” removal hearing
pursuant to 30-A M.R.S.A. § 2633; (ii) they could end Ms. McSorley’s
employment contemporaneocusly with the conclusion of her most
recent 6-menth employment contract, and create a written record of
their reasons for non-renewal pursuant ta 1 M.R.S.A. § 407; or {iii}
they could reach an amicable negotiation with Ms. McSorley as to
mutual releases and severance pay.
At the November 16, 1998 selectmen's meeting, tha Selectmen circulated
the preliminary resolution of removal drafted by Attorney Johnston based
on the events of April, 1998. The Selectmen took no action on the
5
resolution. The motion at the November 23 selectmen’s meeting for her to
stay on through the March Town Meeting did not pass. After several
motions, the motion that passed was for her to stay on through the hiring
process. She stayed on after January 4, 1999 to help the Town in breaking
In the new town manager. (McSorley Dep. at 36-38).° The new town
manager, Tom Richmond, commenced his duties on January 4, 1999. He
informed McSorley on January 25, 1999 that her services were no longer
needed.
On February 5, 1999, McSorley’s attorney requested that the Town
reinstate her as town manager and commence a removal proceeding under
30-A M.R.S.A. § 2633, On February 8, 1999, the Selectmen voted not to
reinstate McSorley or otherwise respond to her attorney’s letter.
McSorley Aff. 78; Ex. SJ5.
ANALYSIS
A party is entitled to summary judgment if no genuine issue of
material fact exists and the moving party is entitled to judgment as a
5.@. Okay. So you were assisting the town in breaking in the new
town manager; is that my understanding?
A. Yes.
Q. Okay, Did you agree to do that?
A. Yes.
matter of law. Burke v. Port Resort Realty Corp., 1998 ME 193, {?, 714
A.2d 837, 839. A genuine issue of material fact is present only when
“there is sufficient evidence supporting the claimed factual dispute to
require a choice between the parties’ differing versions of the truth at
trial.” Prescott v. State Tax Assessor, 1998 ME 250, 7 5, 721 A.2d 169,
171-72 {internal quotations omitted).
In determining whether to grant or deny a motion for a summary
judgment, the trial court "is to consider only the portions of the record
referred to, and the material facts set forth, in the Rule /(d) statements.”
Handy Boat Serv., Inc. v Professional Servs.. Inc., 1998 ME 134, 9 12, 711
A.2d 1306, 1310. if the parties’ Rule 7{d) statements, and the portions of
the record referred to, do not reveal a genuine issue regarding a material
fact, summary judgment is appropriate. Burdzel v. Sobus, 2000 ME 54, | 9,
750 A.2d 573, 576. A fact ts material if it has the potential to affect the
outcome of the case under governing law. ld. 7 6, 750 A.ed at 575. The
parties’ pleadings comply with the new rules except that Defendant's
additional statement of facts in opposition to Plaintiff's motion are not
set out in separate numbered paragraphs.®
6 The opposing statement may contain in a separate section
additional facts, set forth in separate numbered paragraphs and supported
by a record citation as required by paragraph (4) of this rule.
I. PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND
DEFENDANT'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT
Two primary issues are before the Court. First, has the Town of
Carmel adopted a “town manager plan” form of government pursuant to
statute such that 30-A M.R.S.A. §§ 2631 et seq. apply to McSoriey's
termination? Secondly, was McSorley terminated for cause and not
provided a hearing pursuant to 30-A M.R.S.A. § 2633 or did McSorley’s job
terminate according to the terms of her contract?
A. Town Manager Plan
Defendant first argues that because it never adopted a “Town
Manager Plan” pursuant to 30-A M.R.S.A. §§ 2631-2639’ that McSorley’s
M.R. Civ. P. 56(h)(2).
i The form of government provided in this subchapter shall be Known
as the “town manager plan" and, together with general law not
inconsistent, shall govern any town in which the voters have adopted
this plan at a meeting held at least 90 days before the annual
meeting.
30-A M.R.S.A. § 2931(1) (1996). Thomas Richmond states in his Affidavit
that none of the records of the Town of Carmel dating back to 1954,
indicate that the Fown of Carmel has adopted the Town Manager Pian
either as set forth in the current statute, or prior Statute.
due process rights under §2633 were not violated.® Plaintiff, however,
has produced 1950 town records showing that the Town of Carmel, acting
under R.S. ch. 80 § 16 had a town manager.” Defendant has not produced
any evidence that the town later voted not to have a town manager.
8. 30-A M.R.S.A. § 2633 provides:
1. Term. The town manager shall hold office for an indefinite term
unless otherwise specified by contract... .
3. Removal Suspension. The selectmen may remove or suspend
the town manager for cause in accordance with the following
procedures.
A. The selectmen shall file a written preliminary resolution with
the town clerk stating the specific reasons for the proposed
removal. A copy of that resolution shall be delivered to the
manager within 10 days of filing.
B. Within 20 days of receiving the resolution, the manager
may reply in writing and request a public hearing. .. .
30-A M.R.S.A. § 2633 (3) (1996).
9 RS. ch. 80. § 16 provides:
A vote of a town to employ a town manager for itself and not in
Union with one or more other towns shall persist in full force unttl
revoked at any legal special town meeting held at least 60 days
before any annual town meeting.
RS. ch. 80 § 16 (1944).
The earlier statutes were not repealed, only amended.’® The
starting point of statutory interpretation is the language of the statute.
Cummings v. Town of Oakland, 430 A.2d 826, 829 (1981). “it will not be
inferred that the Legislature, in revising and consolidating the laws,
intended to change their policy unless such an intention be clearly
expressed.” Muniz v. Hoffman, 422 U.S. 454, 470. (1975) (citations
omitted). The 1957 Amendment changed the wording from “may vote to
employ a town manager” to “may adopt a town management form of
government.”'' The 1969 revision simply named the town management
io. RS. 1954 ch. 91 §169 provides:
Any town at the annual town meeting... may vote to employ a town
manager or to form a union with one cr more other towns .... A vote
of a town to employ a town manager for itself and not in union with
one or more other towns shall persist in full force until revoked at
any legal special town meeting held at least GO days before any
annual town meeting. F.S. ch. 80, § 16 (1944).
R.S. ch. 91 § 169 (1954).
11. 1957 ch. 405 §41 provides that “A town may adopt the town
manager form of government at a meeting held at least 60 days
before the annual meeting.”
10
aie
form of government the "Town Management Pian. In order to give the
language of the statute meaning, and to follow the clear Legislative
intent, this Court concludes that the Legislature only revised the statutes
and did not intend for towns that had already voted to hire a town manager
under prior statutes to specifically adopt a “Town Management Plan” form
of government at town meeting. In fact, this intent is supported in (+) the
title of the 1969 revision, “An Act Revising the General Laws Governing
the Town Management Form of Government;” (2) 30-A M.R.S.A. § 2311 (3)
which provides that once adopted it remains in effect until revoked; and
(3) 30-A M.R.S.A. 2639 which provides: “All municipalities operating under
the repealed Title 30, chapter 213, subchapter il are deemed to have made
12 ©1969 ch. 438, An Act Revising the General Laws Governing
the Town Manager Form of Government, Sec. 1 F.S., T. 30 c.
213, sub.- C. 1A, additional, Chapter 213 of Title 30 of the RS
is amended by adding a new subch. |l-A, to read as follows:
§ 2311... .The form of government provided in this subchapter shall
be known as the “town manager plan” and shall, together with
general law not inconsistent, govern any town, the voters of which
have adopted this plan at a meeting held at least 66 days prior to the
annual meeting.... 3. Duration once adopted. The town management
plan remains in effect unti! revoked at a town meeting held at least
60 days prior to the annual meeting unless the voters of the town
adopt a charter.
30 MLR.S.A. § 2311 (1969).
11
the adoption under section §2631, subsection 1, as of October 1, 1969.”
Additional evidence that Carmel functions under the town manager
form of government is found in the following: (1) Defendant's April 28,
1997 Meme to McSorley concerning her micro-managing complaint stated:
“The ‘Town Manager Plan,’ described in state statutes gives you the
authority to act as the Chief Administrative Officer. ... We expect you to
carry out these duties in accordance with state law, town ordinances and
our policy. We do not intend to ‘micro manage’ your duties, We may offer
constructive criticism .. .."; (2) the letter from William Livengood to the
Town which stated:
It is my understanding that the Town of Carmel operates under the
statutory town manager form of government... . The Board of
Selectmen may not modify this relationship by ‘policy and
procedures’ which they adopt; any change in this format must be
adopted by the town's legislative body, town meeting. {It is my
understanding that the town meeting has not adopted any such
modifications;
(3) The 1897 and 1998 employment contracts provided that McSoarley
would “perform the duties and functions set forth in applicable state
statutes, including but net limited to 30-A M.A.S.A. Section 2636, . .."; and
(4) the fact that the Policy and Procedures Manual is not an ordinance
adopted by the town.: Accordingly, this Court finds that because the Town
of Carmel voted to hire a town manager in 1950, has continuously hired a
12
and because the amendments are only revisions which do not require a new
vote each time the statute is amended, that the provisions set out in 30-A
M.R.S.A. §§ 2631 et seq. apply to the Town of Carmel. Thus, this Court
analyzes McSorley'’s termination issues in view of the fact it finds the
town is acting under the “Town Management Plan” form of government
pursuant to 30-A M.A.S.A. 2631 et seq.
B. Termination for cause or by contract
Plaintiff contends that instead of following Attorney Johnston's
advice in November, 1998, they retained her as town manager and did not
advise her that her status had changed nor gave her any written notice of
termination until sometime prior to December, 1998 when they asked her
to advertise for a new town manager. MeSorley also stated in her
deposition testimony that she was asked to stay on through the March
meeting. McSorley Dep. at 36. McSoriey’s statement is not supported by
‘the minutes of the meeting. The motion concerning the March date was not
passed. On November 23 the selactmean passed a motion to keep McSorley
on “through the hiring process.”
Plaintiff argues that she is entitled to the full protection of
procedural due process pursuant to 30-A M.R.S.A. § 2633 (3} because the
extension was for “an indefinite term," so that no contract, written or
13
extension was for “an indefinite term,” so that no contract, written or
oral, ever established a definite term for McSorley's employment after
November 6, 1998. A contract is to be interpreted to effect the parties’
intentions as reflected in the written instrument, construed with regard
for the subject matter, motive, and purpose of the agreement, as well as
the object to be accomplished.” V.LP., Inc. y, First Tree Dev., LLO, 2001 ME
73 93, 770 A2d 95, 96 (citations omitted). A contract that provides for a
definite term generally continues until the expiration of the term. Burnell
v. Town of Kingfield, 686 A.2d 1072, 1073 (Me. 1996).19 “A duration term
need not specify a date or period of time; it can identify some event which
will signal termination, even if it is not clear, ex ante, when that event
will take place.” H.L. Miller Machine Tools, Inc. v. Acroloc Inc., 679 F.
Supp. 823, 826 (C.D. Ill. 1988) (citing First_Gommodiiy Traders v. Heinoid
13. In Burnell vy, Town of Kingfield, 686 A.2@d 1072 (Me. 1996) our Law
Court, citing H.L. Miller Machine Tools, Inc. v. Acrolocg, Inc., 879 F. Supp.
823 (C.D. !. 1988) which held that the duration of an employment
contract is definite if it is for a fixed period of time capable of
measurement, indicated that an employment agreement ending when
someone retires might be an ascertainable event, but because Burnell
assumed she would take over the retiree’s position, the contract was not a
contract for a definite term.
Burnell v. Town of Kingfield, 686 A.2d 1072 (Me, 1996).
14
Commodities, 591 F. Supp. 812, 815-16 (1984).'* In Buchanan v. Martin
Marietta Corp., 494 A.2d 677, 679 (Me. 1995), the Court found an oral
promise “through his retirement date in 1991” created a contract of
employment for a definite term. Id. at 678. The term “through the hiring
process” in issue in the case at bar is unambiguous and, accordingly,
interpretation is a matter of Jaw for the Court to decide. Burnell, 686
A.2d at 1073 (Me. 1996}. Under the circumstances of this case where
McSorley's contract which expired November 6, 1998 was not renewed and
the Selectmen voted to keap her on through the hiring of a town manager,
14. The Seventh Circuit, in reversing the illincis District Court's
grant of summary judgment based on its finding that the contract in issue
was terminable at will, found that the contract was for a definite term
because it appeared the intention of the parties was to have the contract
continue until the “happening of a specific event," breach of the contract.
First Commodity Traders v. Heinol ommodities, 766 F.2d 1007, 1012
{7th Cir. 1985).
In RALN. Corp. v. Connelly Food Prod., ing., 175 Ill. App.Gd 655, 659,
125 Ill. Dec. 108, 529 N.E.2d 1184, 1187 {ist. Dist. 1988), the court found
that “remain in effect for as long as Cannelly serves Rich's customers”
did not create a definite durationa! term because the termination of
service of RJN's customers “cannot be considered as an ‘objective event,’
that would have had the effect of making the contract sufficiently
definite in duration. Id. at 660.
The Court in Altrutech, Inc. v. Hooper Holmes, inc., 6 F. Supp. 2d 1269
(D. Kansas 1998}, however, in reviewing Illingis case law found that
breach of contract is a definite terminable event. Id. at 1276.
this Court finds that “through the hiring process” is an ascertainable
identifiable event. Plaintiff admits she stayed on after January 4, 1999
to assist the new town manager. Plaintiff has presented no evidence that
she was terminated for cause during the 1998 contract or the time ending
with the “hiring process.” —
Because the Court finds that the oral contract was for a definite
term, 30-A M.R.S.A. § 2633 (1)'° applies because the term “through the
hiring pracess” is definite and specified by contract. Any extension of
MecSorley’s 1998 “Employment Agreement” expired at the tarmination of
the “hiring process.” Accordingly, McSorley is not entitled to a hearing
pursuant to 30-A NV.A.S.A, § 2633 (3).
I. DEFENDANTS MOTION FOR SUMMARY JUDGMENT
Although the Court finds that the employment agreement controls
MecSorley’s due process rights under 30-A M.R.S.A. § 2633, that finding
does not prevent the Court from considering her discrimination claims.
Where the intent of one party is in question, as is often the case
with employment discrimination claims, the "court must be cautious about
15. The town manager shali hold office for an indefinite term unless
otherwise specified by contract.
30-A M.A.S.A. § 2633 (1),
16
granting summary judgment." Gallo v. Prudential Resi ial
Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). Because in the current
environment, employers rarely leave direct evidence of discriminatory
intent, courts must look for circumstantial evidence which undercuts the
employer's explanation for its actions, See id. at 1224. The Court must
consider the facts in the light most favorabie to the non-mevant, but make
no credibility determination or weigh any evidence. Reeves v. Sanderson
Plumbing Prod. 530 U.S. 133, 121, 120 S.Ct. 2097, 147 L.Ed. 2d 105 (2000).
Thus, any factual disputes must be resolved against the Town of Carmel.
asonic Communications & Systems Co. v. State of Maine, 1997 ME 483, J
10, 691 A.2d 190, 194.
It is unlawful employment discrimination “for any employer to fail
or refuse to hire or otherwise discriminate against an applicant for
employment because of race or color, sex, physical or mental disability,
religion, age, ancestry or national origin, because of the applicant's
previous assertion of a claim or right under former Title 39 or Title 39-A
or because of previous actions taken by the applicant that are protected
under Title 26, chapter 7, subchapter V-B....” 5 M.R.S.A. § 4572 (1}{A)
17
(1989 & Pamph. 2000).'® When interpreting MHAA, it is appropriate to
refer to federal law interpreting Age Discrimination in Employment Act
(ADEA). French v. Bath Iron Works, 45 F.Supp. 2d 69, 73 (D. Me. 1999).
A. Count | - Age Discrimination
To establish a prima facie case of age discrimination McSorley must
present evidence showing that:
1. The Plaintiff was over the age of 40,
2. Her work was sufficient to meet her employer's legitimate
expectations,
3. Her employer took adverse action against her, and
4. The employer sought a replacement with roughiy equivalent job
qualifications, thus revealing a continued need for the same services
and skills.
ick V | Electric Go., 950 F. 2d 816, 823 (1st Cir. 1991).
McSorley conceded at oral argument that no one told her she was being
terminated because of her age. McSorley’s evidence to support her age
discrimination claim primarily consists of: (1} the fact the town hired a
younger male and paid him more than she was receiving after his first
year as town manager; (2) her Statement of Material Fact (“PSMF") #15
14. Plaintiff must “present sufficient evidence to raise an inference
that her protected activity was the likely reason for the adverse action
and must show that her employer was aware she was engaged in the
protected activity.” Bowen v. Department of Human Services, 606 A.2d
1051, 1054 {Me. 1992) (citations omitted).
18
stating: "there were indications that her age was the reason for her
termination.” For example, the selecimen continually found fault with her
work and pressured her to do extra work, including preparing for and
attending workshops once a week in addition to the regular weekly
selectmen’'s meetings. McSorley Deposition at 44 - 47: (3) PSMF #16
stating that “In an open meeting, Douglas Small told Giannis McSorley that
she wasn’t acting normal anymore,” McSorley Dep. at 4g;'7 (4) PSMF #20
stating that “[i]n either 1997 or 1998, John Luce asked Glennis McSorley
how old she was, and whether she had ever considered retiring, Luce Dep.
at 9; and (5} PSMF #28 stating: “At selectrmen’s meetings, it was
discussed that Glennis McSorley should obtain Medicare benefits and be
taken off the town’s health insurance.” Small Dep. at 35. Defendant
contends that the only evidence to support McSorley’s age discrimination
claim is the hiring of younger man {at a lower salary for the first year and
a higher salary for the subsequent year) to replace her as Town Manager.
Cited deposition testimony indicates the Selectmen were dissatisfied
with McSorley’s performance. Small Dep. at 23; Luce Dep. at 8, 22; Dep. Ex.
4,5, 6,7 & 8 Although McSorley worked as town manager for years, she
i7, This comment is too ambiguous to raise a genuine issue of
material fact even when combined with other statements.
19
has presented no evidence that her recent job performance was sufficient
to meet the Selectmen's legitimate expectations. Accordingly, Plaintiff
has failed to meet requirement #2, and the Court grants Defendant's
Motion for Summary Judgment as to the age discrimination claim.
B. Count !I - Sex Discrimination
Plaintiff also claims she was discriminated against because of her
sex, An employee alleging sex discrimination must first establish a prima
facie case by showing that: {1) she belonged to a protected class, (2) she
performed her job satisfactorily, (3) her employer took an adverse
employment decision against her, and (4} her employer continued to have
her duties performed by a comparably qualified person. Santiago-Ramos v.
Centennial P.R. Wireless Corp., 217 F.3d 46, 54 (1st. Cir. 2000}.
To support her sex discrimination claim McSorley states a man was
hired and, although the Town paid him jess the first year, it paid him more
than she was being paid in his second year of employment. McSorley also
states that sometime between 1995 and 1997 Selectman, Jeffrey McGown,
gat irate on a workshop night and stated: “if you were a man, I'd poke you.
And | stood up and said, go toe it. But he didn’t." McSorley Dep. at 53.
McGown was not a selectman when the Selectmen did not renew her
contract. McSorley Dep. at 53, 54. “Stray remarks by non-decision-
20
makers or by decisionmakers .. . are rarely given great weight,
particularly if they were made temporally remote from the date of
decision.” See Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 5.Ct.
at 1804, 104 L.Ed. 2d 268 (1989). This remark, made at the latest in 1997
by one not in office in 1998 - 1999, is not given great weight.
Selectman Smali’s statement that “If you were a man, one or the
other of us would be on our backs on the floor,” was in response to
McSorley's remark, “If | was a man, you wouldn't be talking that way to
me.” Small Dep. at 39. These statements do not present sufficient direct
or circumstantial evidence to survive summary judgment.
Although the Court finds that McSorley belongs to a protected class
and that the town took an adverse employment decision against her when
it did not renew her contract, McSortey still has not met the second
element because she has produced no evidence to rebut. Defendant’s
allegations that she was not satisfactorily performing fer job. MecSorley
has also presented insufficient evidence as to McSorley’s and Richmond's
job qualifications.
Ii. Count Ill - Maine Whistleblowers’ Protection Act
McSorley next claims that the town retaliated against her because
she insisted the Selectmen were overstepping her statutory authority
21
pursuant to 30-A M.R.S.A. § 2636 in violation of the Maine Whistleblowers’
Protection Act. “Section 4572(1}(A) of the MHRA, makes it illega! for an
employer to discriminate against an employee in retaliation for the
employee's exercise of rights under the Maine Whistleblowers’ Protection
Act (MWPA}, 26 M.R.S.A. §§ 831-840. The MWPA, tn turn, protects an
amployee from discrimination when he has complained to the employer in
good faith about a workplace-related condition or activity that he
reasonably believes is illega!, unsafe, or unhealthy.” Higgins v. New
Balance Shoe, Inc., 194 F. 3d 252, 261 (D. Me. 1999}. Neither state nor
federal law requires that the reported condition, activity, or practice
actually be unsafe or illegal; under either scheme, an employee's
reasonable belief that it crosses the line suffices, as iong as the
complainant communicates that belief to his employer in good faith.” Id.
at 262.
Claims under MWPA are analyzed under the framework set out in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973). See DiGentes v. Michaud, 719 A.2d 509, 514 (Me.
1998}. To establish a prima facie case, McSorley must show (1) that she
engaged in a protected activity, (2) that her employer thereafter cashiered
her, and (3} that there was a causal nexus between the protected activity
22
and the adverse employment action. Bard v. Bath !ron Works Corp., 590
A.2d 152,154 (Me. 1991}. Here, McSorley primarily claims violations
because the Selectmen “micro-managed” her performance by insisting on
hiring the office personnel and interfering with activities for which the
town manager has statutory authority’? The May 3, 1995 letter from the
Maine Municipal Association ("MMA") to Selectman Bowers, cancerning its
review of the "Town of Carmel Policy and Procedures Manual,” stated a
flaw in the authority it provided Selectmen because it “is my
understanding that the Town of Carmel operates under the statutory town
manager form of government. Under the statutory “Town Manager Plan” it
is the Town Manager who “.. . shall appoint, supervise, and control all
town officials whom the municipal officers are required by law to appoint
.” {McSorley Dep. at 20, 21; Dep. Ex. 9).'° MeSorley states “there are
is. Q. Sir, you de agree that there were times that Glennis said
that that was her authority not the selectmen’s authority.
A. | do agree with that, yes....
Phillips Dep. at 9,
1% © 30-A M.R.S.A. § 2636 (2) provides that the town manager “(i]s
responsible to the selectmen for the administration of all departments
and offices over which the selectmen have control. Paragraph 5 provides
the town manager “[s]hall appoint, subject to confirmation by the
sélectmen, supervise and control the heads of departments under the
control of the selectmen when the department is not headed by the town
23
indications here from the attorney at MMA that several errors were
inconsistent with state law... They were taking those powers upon
themselves." McSorley Dep. at 55 - 56.°° John Luce agreed that there
were discussions about her powers versus the selectmen’s powers in
terms of managing town affairs. Luce Dep. at 13. Selectmen Small
admitted that authority problems existed for at least ten years. Small
manager under subsection 4. Paragraph 6 provides:
Uinless otherwise provided by town ordinance, shall appoint,
supervise and control all tewn officials whom the municipal
officers are required by law to appoint, except members of boards,
commissions, committees and single assessors; and appoint,
supervise and control all other officials, subordinates and
assistants, except that the town manager may delegate this
authority to a department head and report all appointments to the
beard of selectmen.
30-A M.A.S.A. § 2636 (2), (5) & (6) (1996).
20. As Road Commissioner “| was not allowed to go ahead and da
things at my discretion. Everything had to be written, brought to them for
approval. If it wasn't approved, it had to be changed and brought back to
them. .. .{f occurred weekly during the time that | was town manager.
McSorley Dep. at 55 - 56. “| am not saying it was illegal, but | was the
road commissioner, not the five selectmen. Id. at 58.
@. Do you have any cther specific examples?
A. Like | mentioned, hiring people. | just couldn't go ahead and hire
anybody to do anything without their sanction.
Q. And why is the Selectmen act of requiring you te get approval of
hiring illegal?
A. It is a duty of the town manager under statute.
24
Dep. at 22.
Viewing the evidence most favorable to McSorley and discarding
Defendant's evidence that a jury would not have to believe, this Court
finds that McSorley has established a prima facie case of a violation of
the MWPA. Under McDonald-Douglas, after the employee esiablisnes a
prima facie case of a violation of the MWPA, the employer has the burden
of production to present a legitimate, nonretaliatory reason for the
discharge. Here, the town has produced the legitimate nondiscriminatory
reasons that: (1) the Selectmen had problems with her performance as
town manager and (2) that her employment agreement ended by its own
terms. Non-renewal, however, can be an adverse employment action.
McSorley must now show that the town’s proffered reason is
pretextual and that retaliation prompted her non-renewal. See Mesnick,
950 F.2d at 827. This Court finds that in this town manager situation,
the continued authority conflict raises a genuine issue of material fact
for a factfinder as to whether the authority conflict or poor performance
was the underlying force leading to nonrenewal. Accordingly, Defendant's
Motion for Summary Judgment on the MWPA is denied.
The entry is:
Plaintiff's Motion for Partial Summary Judgment (Count IV} is
25
DENIED.
Defendant's Motion for Partial Summary Judgment (Count IV)
pursuant te Rule 56(b) is GRANTED.
Defendant's Motion for Summary Judgment is GRANTED as to
Counts | and ij, and DENIED as to Count Ill.
The Clerk is directed to incorporate this Order into the docket by
reference pursuant to M.R. Civ. P. 79(a).
Dated: 12% 2001
Hon. Francis C. Marsano,
JUSTICE, SUPERIOR COURT
¢
wo
Date Filed 1/21/2000 FENOBSCOT = acket Na, cV-2000-17
County
Action CIVIL ~ DAMAGES
ASSIGNED TQ JUSTICE FRAKCIS C. MARSANOD
GLENNIS A. MOSORLEY yy, INHABITAKTS OF THE TOWN OF CARMEL
Plaintiff's Attorney Defendant's Attorney
GILBERT LAW OFFICES BERNSTEIN SHUR SAWYER & NELSON
FO BOX 2339 P O BOX 5057 - 146 Capitol Street
BANGOR MAINE 04402 2339 AUGUSTA ME 04332-5057
BY: Arthur J. Grief, Esq. BY: Lee K. Brags, Esq.
Joseph Hahn, Esq.
Date of
Entry
17/24/00 Complaint filed.
1/24/00 Case File Notice Postcard forwarded to Plaintiff's Coungel.
2/7/00 Officer's Return of Service filed (s.d, 2/2/2000 by Thomas Richmond,
Town Glerk)
2/22/00 Answer and Affirmative Defenses filed by Defendant.
2/23/00 Scheduling Order filed. Discovery Deadline is November I, #7000,
(Marsano, J). Specially Assigned Justice.
Gopy forwarded to attorneys of record.
3/14/00 Jury Demand filed by Plainriff. Jury Trial Fee of $300.00 paid.
5/26/00 Notification of Discovery Service filed by Defendant, First Request for
Production of Documents.
6/78/00 Flaintiff's First Request for Fraduction of Documents filed,
6/28/00 Plaintiff's Response to Defendant's First Request for Production of
Documents filed.
6/28/00 Notification of Discovery Service filed by Plaintiff: Plaintiff's Firse
Request for Production of Bocuments; Plaintiff's Response to Defendant's
Request for Produetion of Documenta.
8/28/00 Kocification of Discovery Service filed by Defendant, Response to
Flainctiff's First Request for Production of Decuments,
10/6/00 Consent Motion to Enlarge Disrovery filed by Defendant.
10/6/00 Nocification of Discovery Service flled by Defendant, ‘Notice of Deposition
of Glennis A. MeSorley,