Stone v. Northeast Publ'g Co.

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, SS. CIVIL ACTION

Docket No. CV-01,-197,

Kenneth E. Stone,

Plaintiff

V.

for Summary Judgment)

Northeast Publishing Co., LRA seo

Defendant Py

WAR 31 2003

Pending before the court is the defendant’s motion for summary judgment on each

of the three counts of the complaint. The court has considered the parties’ written .

arguments and other submissions associated with the motion at bar.

Between 1992 and 2000, the plaintiff was an employee of the defendant, which

publishes a weekly publication. The plaintiff sold advertising for the publication. He

claims here that he suffered an adverse employment action in October 2000 as a result of

his allegations that the defendant acted unlawfully in failing to pay him and other

employees the amounts due to them as compensation. He also claims that he was placed

on unpaid leave in October 2000 as the result of the defendant’s perception that he was

disabled. These allegations have been channeled into claims under the Maine

Whistleblower Protection Act (WPA), 26 M.R.S.A. § 831 ef seq. (count 1) and the Maine

Human Rights Act (MHRA), 5 MLR.S.A. 8 4551 et seq. (count 2). In his third count, the

plaintiff alleges that the defendant is liable to him for unpaid wages and statutory

damages under 26 M.R.S.A. § 626.

Summary judgment is proper only if the record on summary judgment shows that

there are no genuine issues of material fact and that the movant is entitled to judgment as

a matter of law. See M.R.Civ.P. 56. To survive a motion for a summary judgment, the

opposing party must produce evidence that, if produced at trial, would be sufficient to

resist a motion for a judgment as a matter of law; "[t]he plaintiff must establish a prima

facie case for each element of the cause of action." Rodrigue v. Rodrigue, 1997 ME 99,

q8, 694 A.2d 924, 926. "'A fact is material when it has the potential to affect the outcome

of the suit." Prescott v. State Tax Assessor, 1998 ME 250, 5, 721 A.2d 169, 172. If the

evidence favoring the nonmoving party is “merely colorable, or is not significantly

probative, a summary judgment may be granted.” See Green v. Cessna Aircraft Co., 673

A.2d 216, 218 (Me. 1996) (citation and internal punctuation omitted).

A. Whistleblower’s Protection Act (count 1)

The parties argue their positions under the burden-shifting framework adopted

from federal law in DiCentes v. Michaud, 1998 ME 227, 719 A.2d 509. Under that

formula, a WPA claimant establishes a prima facie case by demonstrating that (1) he

engaged in an activity that is protected under the WPA, (2) he suffered an adverse

employment action, and (3) there was a causal connection between the protected activity

and the adverse employment action. The defendant then bears the burden of producing

_ evidence that the adverse employment action was based on a legitimate, non-

discriminatory reason. Finally, the plaintiff bears the burden of persuasion to show that

the reason offered by the defendant was pretextual. Id., | 14,719 A.2d at 514.’ The

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evidence is insufficient to support an argument that he engaged in an activity protected

under that law and that there is insufficient evidence that the adverse employment action

was caused by any such conduct. The court is satisfied that the record on summary

judgment generates a factual basis for these elements of the plaintiff’s claim.

The record indicates that while the plaintiff was employed by the defendant, his

compensation was based on a combination of salary and commissions for newspaper

advertising that he soid. “On a variety of occasions,” he complained that he did not

receive full payment of the commissions to which he felt entitled. Defendant’s Statement

of Material Fact (DSMF) J 11. As a result of these reports, he received some of that

money. Jd. The plaintiff talked to some of the other employees about this issue and

conveyed their complaints to the defendant. Plaintiff’ s Opposing Statement of Material

Fact (POSMF) J 45. The defendant wanted him to stop, and this led to a meeting heldin —

' Although DiCentes did not get past the burdens associated with the prima facie case, the

Law Court has made clear that the remainder of the burden-shifting approach rooted in

McDonnell Douglas v. Green, 411 U.S. 792 (1973) applies to claims brought under

Maine’s WPA. DiCentes, 1998 ME 227, { 14, n.10, 719 A.2d at 514.

June 2000. Jd, At that meeting, the plaintiff advised his supervisor, J ohn Browning, that

he thought the defendant’s failure to make full payments of the commissions was illegal.

POSMF { 15 (citing Browning deposition at p. 48). Browning notified his own

supervisor, Pam Lynch, of this accusation. DSMF { 15. The next day, Browning, Lynch

and the plaintiff met. Zd., 16. The plaintiff apologized for his accusation that the

defendant was stealing money (i.e., the commissions). Id. He also pointed out what he

believed to be specific computational errors in the commission and made complaints

about the method by which the defendant computed those commissions. Jd.,{17. The

plaintiff was told that if he did not like those policies, he could leave or seek employment

elsewhere. Id., ] 17; POSMEF J 17. Subsequent to the second meeting, including in

September and as late as mid-October 2000 — only several weeks prior to the adverse

employment action --, the plaintiff continued to make complaints about the commission

calculations, although the defendant may have corrected some of those calculations.

DSMF J 14, 18; POSMF {[ 18. In late October, following a meeting at which the parties

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a severance package or taking a six-month leave with the right to reapply for

employment. DSMF { 31. The plaintiff did not choose between the two, and the —

defendant imposed the latter. Id., q 34.

If an employee makes a report to an employer of what the employee has

reasonable cause to believe is a violation of law, then the employee engages ina

protected activity for purposes of the WBA, provided that the employer is given a

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reasonabie opportunity to correct any such vioiation or actionable practice. 26 M.R.S.A.

§ 833. Here, the plaintiff told several of the defendant’s supervisory personnel that he

believed that the defendant’s practices regarding commission payments were unlawful.

The law implicated by his accusation includes criminal violations (e.g., 17-A MLR.S.A. §

351 et seq.) and civil misconduct (e.g., 26 MLR.S.A. § 621-A et seq.). Those practices

predated the communication, but the record also supports an argument that they

continued even after the plaintiff made the complaint. The record also indicates that in

response to the plaintiff's complaints, the defendant sometimes made adjustments to its

commission computations. Under these circumstances, the record is adequate to support

a factual argument that the plaintiff had both an actual belief and reasonable cause to

believe that the defendant was engaging in unlawful practices by withholding amounts of

the commissions to which the plaintiff and perhaps other employees were entitled. The

plaintiff's apology of June 27 is a matter that affects the weight of evidence supporting

his claim and does not undermine it as a matter of law.

The evidence also generates an argument that the plaintiff’s complaint was a

cause, see DiCentes, 1998 ME 227, { 17, 719 A.2d at 515, of the adverse employment

action taken against him in October. A factfinder would not be compelled to accept the

defendant’s explanation for its decision to place the plaintiff on leave. The defendant had

a hostile reaction to the plaintiff’s complaint and the manner in which he handled the

issue. The plaintiff was told that he could find a job elsewhere if he found the

commission payment practice unacceptable. Although this remark can be taken as a

statement of fact (that is, simply reminding the plaintiff of his options), it also could be

construed as a threat. That issue is for the factfinder to resolve. The plaintiff continued

to make several more similar complaints, and later that year, he was placed on

invoiuniary leave. Evidence of the pattern

response to it and the timing of the adverse employment action is sufficient to support an

inference that the defendant’s employment decision was caused at least in part by the

plaintiffs arguably protected conduct. The duration of time surrounding these events and

the explanation offered by the defendant do not undermine the existence of a factual

argument that the defendant violated the provisions of the WPA.

B. Maine Human Rights Act (count 2)

The federal burden-shifting analysis applies to claims of employment

discrimination under the MHRA, just as it does to WPA actions. Maine Human Rights

Commission v. City of Auburn, 408 A.2d 1253, 1261-62 (Me. 1979). Therefore, on his

MHRA action, the parties agree that the plaintiff must demonstrate that (1) he was

disabled within the meaning of the MHRA, (2) he was qualified to perform the essential

functions of his job either with or without a reasonable accommodation for his disability

and (3) he was the subject of an adverse employment action because of his disability.

With such proof, the defendant bears the burden or producing evidence of a legitimate,

non-discriminatory reason for the action it took regarding the plaintiff’s employment.

Finally, the plaintiff has the ultimate burden of establishing that the proffered explanation

is a pretext and that the employer engaged in unlawful discrimination. In its motion, the

defendant argues that the record does not reveal a genuine factual argument in support of

any of the elements of the plaintiff’s prima facie case.

Of the several legal concepts of “physical disability,” the plaintiff here predicates

his claim on allegations that the defendant “regarded” him as having a physical

impairment that substantially limits one or more of his major life activities. See Winston

y. Maine Technical College System, 631 A.2d 70, 74 (Me. 1993); see generally 5

MLR.S.A. § 4553(7-A); see also Plaintiffs Memorandum of Law in Opposition to

Defendant’s Motion for Summary Judgment at 9, n.5.

The plaintiff's MHRA claim arises from an episode in August 2000 where he lost

consciousness while driving, resulting in a motor vehicle accident. DSMF { 19. The

cause of the medical problem is not known. Id. { 23. Under state law, the plaintiff then

was not permitted to drive for six months from the date of the incident. Id.,] 25. The

plaintiff’s physician did not impose any other restrictions on the plaintiff’s activities. Id.;

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POSMF 4 26. The defendant was aware of the extent of the restriction imposed by the

plaintiff’s physician. Id., 27. It also learned that the plaintiffs condition did not make

him eligible under the Family Medical Leave Act because he did not have a serious

health condition that would require him to leave work. DSMF § 28; Plaintiff’s Statement

of Additional Material Fact (PSAMF) {{ 62.

After his driving privileges were suspended, in order to discharge his work

responsibilities, several people drove him around. DSMEF { 26. These people included

several co-empioyees and ihe plaintiffs wife. fd. The plaintiff was satisfied that ne .

could continue his sales work by walking, getting rides from other people and using the

telephone and facsimile machines. POSMF { 30. The record supports a factual

contention that the plaintiff in fact did carry out his work duties in those and other ways,

such as by delivery services and drop-offs at the defendant’s office. PSAMF 57."

2 The defendant has denied the plaintiff’s assertion in paragraph 57 of his statement of

additional material fact. There are two bases for the defendant’s denial. The first is the

plaintiff’s deposition transcript, which does not appear to provide a basis on which to

deny this assertion. The second is a bald statement in Lynch’s deposition that the

plaintiff could not perform his work duties. At the very least, there is consequently a

After the defendant learned that the plaintiff’s situation did not bring him within

the FMLA, the defendant gave him a choice of termination of employment with

severance benefits or a six month leave with the right to apply for employment with the

defendant. DSMF 31. The defendant had concluded that it was entitled to present this

option to the plaintiff because of the physician’s opinion that the plaintiff’s condition did

not trigger the protections of the FMLA. Defendant’s Reply Statement of Material Fact

(DRSMF) { 52. The defendant gave the plaintiff this choice because of the six month

prohibition against driving. Id.; POSMF J 31. When the plaintiff conferred with Pam

Lynch the day after the defendant communicated its position to the plaintiff, she said that

his job required him to drive and that he was unable to perform his job duties because of

the driving restriction. DSMF { 33. Lynch also expressed her belief that “85%” of the

plaintiff’s job involved driving. Id.

The evidence is sufficient to make out an argument that the plaintiff had a

physical disability in the legal sense that forms the basis for his MHRA claim. Although

no one, including the defendant and even the plaintiff’s physician, has provided a medical

explanation for the August 2000 blackout, the facts remains that the plaintiff did lose

consciousness and the defendant was fully aware of the incident. As a result of the

episode, the plaintiff was prohibited from driving for a six month period commencing

with the date of the incident. More than a month later, Lynch inquired of the plaintiff’ s

physician if, in effect, the plaintiff suffered from a serious medical condition. She was

advised that he did not. Nonetheless, several days later, Lynch sent the plaintiff’s

physician a form that would help establish if the plaintiff was protected under the FMLA.

The physician responded that he dia not qualify.

The plaintiff does not argue here that his condition and its effects on him in fact

substantially limited one or more of his major life activities. Rather, the plaintiff argues

that the defendant treated it as such, regardless of its actual seriousness. The record on

summary judgment is sufficient to generate an argument that based on the defendant’s

perception of the plaintiff’s medical condition, the defendant deemed him incapable of .

performing work responsibilities that involved expectations of independent traveling.

genuine issue of material fact on the question of whether the plaintiff adequately

performed his job notwithstanding the prohibition against driving.

The defendant argues on this motion that the ability to drive is essential to the plaintiff's

employment and that it placed the plaintiff on unpaid leave because he was unable to

perform that function. On this record, the plaintiff may legitimately argue that one of his

major life activities is his employment in sales. Because the defendant argues that the

plaintiff’s ability to travel independently is essential to carrying out that life activity, his

inability to drive means that, at least from the defendant’s perspective, his ability to carry

out that life activity is substantially limited. Because, based on the defendant’s own

argument, the ability and right to drive is a major life activity of marketing, and because

the plaintiff’ s established employment history is in that field, there is a genuine factual

issue underlying the plaintiff’s fundamental allegation that he was disabled within the

meaning of the MHRA.

Next, the evidence generates an argument that the plaintiff was qualified to

continue his sales work for the defendant’s publication. The record indicates that while

the plaintiff was prohibited from driving, he still maintained contact with his clients and

continued to transact with them. Therefore, there is a genuine issue of factual dispute

ight to drive was essential to the plaintt nt position.

The parties dispute the reasons why the defendant had concerns about any liability

exposure that might be created when someone drove the plaintiff to his appointments.

However, that is one factual issue that bears on the reasonableness of that possible

accommodation, and it cannot be resolved in the context of a motion for summary

judgment.

In light of the existence of evidence that the plaintiff was able to perform his job

even wiihouut driving himself, there is a factual argument that his disability, rathcr than

the driving restriction, was a cause of the adverse employment action.

C. Unpaid wage claim (count 3)

In count 3, the plaintiff alleges that the defendant is liable to him because it did

not make timely payments based on commissions generated by advertising he sold. The

record on summary judgment makes clear that the compensation at issue is based on

advertising revenues that the defendant received after the plaintiff no longer worked

there. DSMF { 38. Those commissions are ordinarily paid to the salesperson when the

defendant the customer’s payment for the advertising. DSMF { 12.° The record also

establishes that employees who receive income based in part on commission are not

entitled to receive those commission payments if the payment for the advertising is

received when the that salesperson is no longer employed by the defendant. DSMF 37.*

Therefore, the record on summary judgment does not generate a factual basis on which

the plaintiff can argue that he is entitled to the commission payments that form the entire

predicate for his unpaid wage claim.

The entry shall be:

For the foregoing reasons, the defendant’s motion for summary judgment is

granted in part and denied in part. Summary judgment is entered for the defendant on

count 3 of the complaint. Beyond this, the motion for summary judgment is denied.

|

Dated: March 26, 2003 Winx

Justice, Maine Superior Court

* The parties dispute whether the employee remains entitled to a commission when the

advertising fee is paid more than 180 days after that payment is due. See | DSMF 12;

‘POSMEF 12. That dispute is not material to the circumstances of this case.

“In his response to the defendant’s factual assertion on this point, he states that he was

not aware of that limitation. See POSMF {J 12, 37. Without more, the nature and extent

of his subjective understanding of this arrangement is not sufficient to create a genuine

issue of material fact regarding the payment policy.

Date Filed

10/9/01

CV-2001-197

Penobscot Docket No.

Action

County

Civil - Damages

KENNETH E. STONE vs.

ASSIGNED TO JUSTICE JEFFREY L. HJELM

NORTHEAST PUBLISHING CO.

Plaintiff's Attorney

Gilbert & Greif

P O Box 2339

Bangor ME 04402-2339

BY: Arthur Greif, Esq.

Defendant’s Attomey

EATON PEABODY

FLEET CENTER, 80 EXCHANGE STREET

P O BOX 1210 *

BANGOR, ME 04402-1210

BY: Glen L. Porter, Esq.

Date of

Entry

10/9/01 Complaint filed. Exhibit A attached.

10/10/01 Case File Notice Postcard forwarded to Plaintiff's Counsel.

10/25/01 Acceptance of Service by Glen L. Porter, Esq on behalf of Northeast

Publishing Co. filed..(s.d..10/23/01)

11/13/01 | Affirmative Defenses and Answer filed.

11/15/01 Scheduling Order (M.R.Civ.P. 16(a) filed. The entry will be:

Scheduling Order filed. Discovery deadline is August 1, 2002. (Hjelm, J.)

Copy forwarded to all attorneys of record.

12/4/01 Plaintiff's Jury Trial Demand filed. ($300.00 trial fee paid)

12/13/01 | Notification of Discovery Service filed by Defendant, 1. Interrogatories

to Plaintiff and 2. Request for Production of Documents to Plaintiff.

1/14/02 Notification of Discovery Service filed by Plaintiff: Plaintiff's Answers

to Interrogatories. Plaintiff's Responses to Defendant's First Request for

Production of Documents.

2/8/02

Plaintiff's Expert ued Designation filed.

Continue

In Mejis

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, SS, CIVIL ACTION

ee Docket No. CV-01-197

i

Kenneth E. Stone,

Plaintiff I

i

V. ~~. cision and Judgment

DONALD 1 CAST SCAT

sae LAY: Le oe

Northeast Publishing Co.,

Defendant

wAP 3 9004

On July 30, 2003, a jury returned a verdict finding the defendant liable on the

plaintiffs claims of employment discrimination and awarding him compensatory and

punitive damages. On September 2, 2003, a hearing was held on the equitable forms of

relief sought by the plaintiff, The plaintiff appeared with counsel, and the defendant

appeared through counsel. The court has considered the parties’ post-hearing

memoranda.

First, the court finds that the defendant was actually or constructively discharged

from employment in October 2000. The defendant unilaterally placed him on a six

month leave of absence and gave him merely the right to reapply for his former job. This

is little or no better than the Position someone with no connection to the defendant would

have had, and it amounts to a separation from employment with no assurance or

expectation of renewed employment after the six months had passed.

The plaintiff received employment income from the defendant through October

27, 2000. He does not seek backpay subsequent to October 28, 2002, because as of that

latter date he was unable to work due to a medical condition. When the plaintiff’s

employment earnings for 2000 are projected for the full year, his annualized income

would have been $37,500. The court accepts this as the best evidence of the rate of

earnings he would have received had he not been terminated from employment in

October 2000.

The central question raised by the parties relates to the date when the computation

of the plaintiff’s backpay comes to an end. The plaintiff argues that he is entitled to

backpay up to the time when he was medically unable to work, namely, October 28,

2002. The defendant contends that one of several earlier dates marks the terminus of the

calculation.

First, the defendant urges that a position became available to him with the

defendant when another member of the sales staff, Sandy Violette, left The Weekly (the

weekly publication issued by the defendant and for which the plaintiff had worked as an

outside sales representative) in February 2001. The defendant argues that the plaintuff

could have applied to fill that position and that his failure to do so demonstrates his

failure to mitigate his damages. However, the court concludes that the plaintiff acted

reasonably in not pursuing further employment from the defendant who, as the jury has

established, had illegally discriminated against him. The defendant itself never reached

out to the plaintiff to offer him a job, even in the face of his strong sales record and the

availability of a position created by Violette’s departure. In fact, the defendant never

filled that position at all.

The defendant bears the burden of proving that a claim for backpay should be

reduced by some sum to account for a plaintiffs actual earnings generated elsewhere

during the relevant time frame, or to account for a plaintiff’s failure to seek alternative

employment income with reasonable dili gence. Maine Human Rights Commission v.

Department of Corrections, 474 A.2d 860, 869 (Me. 1984). When the defendant attempts

to prove that the plaintiff failed to exercise reasonable dili gence in looking for work, it

must prove “that the course of conduct plaintiff actually followed was so deficient as to

constitute an unreasonable failure to seek employment. The range of reasonable conduct

is broad and the injured plaintiff must be given the benefit of every doubt in assessing her

conduct.” Jd. (citation omitted). Under these circumstances at bar, the plaintiff’s

remedies for backpay do not end when a sales position merely became open in February

2001.

The defendant next argues that the plaintiff’s equitable remedy cannot be

predicated on backpay that he claims for the period of time after October 2001. In

October 2001, the defendant stopped publishing The Weekly. Without missing any

issues, however, The Weekly began to be published by the Bangor Publishing Company

(BPC) as part of the Thursday editions of the Bangor Daily News. Of the three outside

salespeople still working on The Weekly for the defendant in October 2001, two were

hired by Bangor Publishing Company to sell advertising for The Weekly, which the

company now published. The company had decided not to hire more than two, because

more than two salespeople were not needed to cover and generate accounts for The

Weekly, and because additional sales personnel would not have justified that extra

personnel expense. One of those two people was a sales supervisor, and the other was a

salesperson with a strong sales track record. The third salesperson who had worked for

The Weekly, whose sales record was not as strong, was not hired by Bangor Publishing

Company. Thus, the question arises whether in the absence of the defendant’s unlawful

termination of the plaintiff, Bangor Publishing Company would have offered the plaintiff

a sales position with The Weekly after October 2001. As is noted above, on this issue,

the defendant bears the burden of proof. Department of Corrections, 474 A.2d at 869;

see also LeBlond v. Sentinel Service, 635 A.2d 943, 945 (Me. 1993); Maine Human

Rights Commission v. City of Auburn, 425 A.2d 990, 999 (Me. 1981). Consequently, the

plaintiff is entitled to equitable relief based on backpay subsequent to October 2001,

unless the defendant proves that Bangor Publishing Company would not have hired the

plaintiff. If the defendant fails in its proof on this issue, then the defendant is the liable

party.’ See Weaver v. Casa de Gallardo, Inc., 922 F.2d 1515, 1526 (11° Cir. 1991),?

At the September 2 hearing, Wayne Lawton, the advertising director of Bangor

Publishing Company, testified that in October 2001, he hired The Weekly’s advertising

supervisor (John Browning) and one standard salesperson (David Warwick). Browning

was attractive as anew BPC employee because of the supervisory position he held at The

Weekly. Lawton further testified that he hired Warwick because of Warwick’ s good

sales history and because of his seniority. However, the evidence establishes that in 1999

In this case, the defendant does not argue that Bangor Publishing Company would be

the responsible party under a theory of successor lability.

* Although the defendant challenges the applicability of Weaver here, the defendant’s

director of operations testified that The Weekly’s assets were transferred to BPC. This

establishes the factual predicate to the legal principle found in Weaver’s holding.

and perhaps in 2000, the plaintiff’s sales exceeded those of the other sales representatives

at The Weekly. Further, when asked to address the relative importance of seniority when

making his hiring decisions, Lawton testified that sales performance was more important

that seniority. This observation makes sense, because a sales record is more probative

than longevity of the prospects for sales productivity. Lawton further testified that recent

sales performance is more important than more remote data, when the qualities of a

salesperson are assessed. Here, the plaintiff had greater recent success in sales for The

Weekly compared to Warwick, although Warwick had been more successful in the past.

Inevitably, there is some level of guesswork whenever one is asked to address a

hypothetical situation (here, whether BPC would have hired the plaintiff in October 2001,

if the plaintiff had still been in the defendant’s employment at that time). However, a

critical examination of Lawton’s hiring principles raises significant questions about his

bald statement that he would not have hired the plaintiff even if the plaintiff worked at

The Weekly in fall 2001. When Lawton’s hiring criteria are brought to bear on the

circumstances that existed then, the plaintiff should and would have been a candidate for

employment who was at least as attractive as Warwick. From this, the court concludes

that the defendant has not proven that BPC would not have hired the plaintiff in the

absence of the defendant’s unlawful termination a year earlier.

Next, the defendant contends that the plaintiff’s job search slowed down in the

beginning of 2002 and that, from that point, it was insufficient to support an award of

backpay. The evidence reveals that the plaintiff’ job search was more intensive prior to

early 2002. See, e.g., plaintiffs exhibit 10 (list of potential employers contacted by the

plaintiff). That search went well beyond pure sales positions and included such jobs as

cooking and such employers as convenience stores. Additionally, the plaintiff registered

with an unemployment service. He earned a small amount of income from one business

(the plaintiff agree that those wages would offset his award of backpay), and he turned

down one job offer from a printing company because the expenses he would have

incurred would have exceeded his prospective income. Although in 2002 the plaintiff

ratcheted down the extent of his formal application efforts, he still looked for work.

Particularly in light of the vigorous and wide search conducted by the plaintiff through

2001, the court does not find that his efforts between J anuary and August 2002 slowed

down to the point where, based on this record, he missed a job opening that would have

resulted in gainful employment.

Finally, the defendant contends that the calculations of the plaintiff's backpay

should end in August 2002. That was the time when BPC terminated David Warwick’s

employment, because it felt that Warwick’s sales performance was not adequate. The

court views the plaintiff’s sales competence as comparable to that of Warwick. Both

were valued members of The Weekly’s sales staff ; Warwick had a long history of

superior sales production; when viewed over the long term, Warwick’s sales performance

was stronger than the plaintiff’s; but, in 1999, the plaintiff topped Warwick’s and became

The Weekly’s best producer. Thus, on this record, the court finds no evidence that

Warwick was a measurably more preferable member of a publication’s sales staff than

the plaintiff, or vice versa.’ Thus, if Warwick’s sales record was unacceptable to BPC in

August 2002, there is no reason to believe that the plaintiff would have done any better.

Additionally, when Warwick was terminated then, another former salesperson with The

Weekly lost her job. Thus, the only remaining alumnus of The Weekly’s sales staff was

Browning, who, because he had been a supervisor and a salesperson, must be seen as

having different standing than the plaintiff. The significance of Warwick’s departure also

must be seen in light of BPC’s initial hiring strategy, which was to hire only a limited

number of salespeople because of BPC’s economic assessment that only a few new

employees could be justified financially. Thus, based on Warwick’s employment fate,

the court finds that the best conclusion allowed by the evidence is that the plaintiff would

not have maintained any employment with BPC after August 31, 2002.*

* It is this equipoise that underlies the court’s conclusion, discussed earlier in the text, that

if the plaintiff has been an employee at The Weekly in October 2001, BPC would have

hired Warwick over him. Because of the allocation of the burden of proof, on that issue

the court can only find against the defendant.

* The evidence indicated that BPC shut down the Summer Street offices where The

Weekly had done business, and terminated Warwick, in August 2002. Because the

record does not reveal the date in August, and because the defendant bears the burden of

proof on issues limiting the plaintiff’s damages, the court uses the last day of August as

the date when the plaintiff’s claim for backpay is deemed to end.

The period of time between October 27, 2000, and August 31, 2002, covered 96

weeks. The plaintiff’s weekly income, when derived from annual income of $37,500,

was $721. His gross backpay claim therefore amounts to $69,216. The defendant is

entitled to an offset of $110 for other income earned by the plaintiff during the relevant

time period. It is also entitled to the amount it paid to the plaintiff for vacation time that

he would not use due to his termination. That amount was $2,077. Thus, the plaintiff is

entitled to equitable relief based on lost income in the net amount of $67,029.

The last issue raised by the parties is whether the plaintiff is entitled to pre-suit

interest based on his argument that the administrative complaint filed with the Maine

Human Rights Commission is tantamount to a notice of claim under 14 M.R.S.A. §

1602.° Section 1602 triggers the accrual of pre-judgment interest, even prior to the

commencement of an action in court, if the claimant serves a notice of claim, which sets

“forth under oath the cause of action... .” The notice must be served on the respondent

either personally or by registered or certified mail. Here, as part of the process of

initiating an administrative action before the MHRC, the plaintiff sent the defendant, by

certified mail, a copy of the administrative complaint, the original of which was filed

with the MHRC. The complaint identified the cause of action (employment

discrimination based on “Failure to Reasonably Accommodate a Disability”) and the

factual basis supporting that claim. The plaintiff signed the complaint under oath. See

plaintiff’s exhibits A and B. The notice served on the defendant thus includes the

elements that are required in a section 1602 notice of claim.

The defendant contends that the administrative complaint should not be treated as

a section 1602 notice of claim because the complaint did not refer to section 1602 and

* The defendant failed to address this issue in its written argument that responded to the

plaintiff’s memorandum, which clearly did raise the claim for pre-judgment interest

discussed in this order. Rather, the defendant addressed the merits of this issue only

when it filed a supplemental argument outside of the briefing schedule. Although the

defendant notes that it did not view the interest issue as an element of the equitable relief

sought by the plaintiff, the purpose of the parties’ submissions was to create an

Opportunity to address those issues that would be included in the court’s judgment. The

date on which pre-judgment interest begins to accrue certainly can be seen as an issue

that a judgment should cover. Thus, there is merit to the plaintiffs argument that the

defendant waived its objection to his claim for pre-suit interest. However, because the

parties now have addressed the issue fully, the court reaches its merits.

that the defendant thus did not construe the complaint as a mechanism to trigger the

accrual of interest under that statute. However, a section 1602 notice is not required to

cite that statutory provision, and it is not required to state that it has the effect of

commencing the accrual of interest. Thus, the defendant argues that the filing should

have included more information, but the controlling provision does not impose that

requirement.

Further, more generally, the purpose of a notice of claim is to advise a prospective

defendant of the existence of the claim and of the substance of that claim, and the oath

requirement is intended to signify the seriousness of the claimant’s intention to pursue the

claim and to subject that claimant to penalties for any false or inflated statements that are

contained in the instrument. See, e. 8., Paradis v. Webber Hospital, 409 A.2d 672, 675

(Me. 1979) (notice of claim under Maine Health Security Act). Here, the complaint filed

by the plaintiff and served on the defendant achieved all of those objectives. Irrespective

of whether the defendant was placed on actual notice of the potential consequences of the

swom complaint, the complaint in fact satisfied the necessary and sufficient conditions

imposed by section 1602, and nothing about the complaint compromised the effects that

it should have had on a party in the defendant’s circumstances.

The entry shall be:

Based on the jury’s verdict retumed on J uly 30, 2003, judgment is entered for the

plaintiff and against the defendant. The plaintiff is awarded compensatory damages for

non-pecuniary losses and punitive damages in the combined amount of $ 50,000. See 5

M.R.S.A. § 4613(2)(B)(8)(e)(i). In addition to and separate from that award, the plaintiff

is awarded $ 67,029 as equitable relief in the form of backpay. The plaintiff is awarded

pre-judgment interest, accruing from December 14, 2000, at the annual rate of 6.471%,

and he is awarded post-judgment interest at the annual rate of 7.53%. See 14 M.RS.A.

8§ 1602-B, 1602-C (eff. July 1, 2003).

The plaintiff is awarded reasonable attorney’s fees and costs of court. See 5

MLR.S.A. § 4614.

|

i, .

Dated: November 29, 2003 (ti 7 a

Justice’ Maine Superior Court

Jeffrey L. Hjelm

KENNETH E STONE - PLAINTIFF

SUPERIOR COURT

PENOBSCOT, ss.

Attorney for: KENNETH E STONE

ARTHUR GREIF

Docket No BANSC-CV-2001-00197

GILBERT & GREIF

82 COLUMBIA ST

DOCKET RECORD

PO BOX 2339

BANGOR ME 04402-2339

Vs

NORTHEAST PUBLISHING CO - DEFENDANT

Attorney for: NORTHEAST PUBLISHING CO

GLEN L PORTER

EATON PEABODY

80 EXCHANGE ST

PO BOX 1210

BANGOR ME 0

Filing Document: COMPLAINT

4402-1210

Minor Case Type: CONSTITUTIONAL/CIVIL RIGHTS

Filing Date: 10/09/2001

Docket E

05/09/2002

05/09/2002

05/09/2002

05/09/2002

05/22/2002

07/11/2002

07/11/2002

07/24/2002

vents:

FILING DOCUMENT - COMPLAINT FILED ON 10/09/2001

NOTE - PRIOR ENTRIES IN MANUAL DOCKET ENTERED ON 10/09/2001

Party(s): KENNETH E STONE

ATTORNEY - RETAINED ENTERED ON 10/09/2001

Plaintiff's Attorney: ARTHUR GREIF

Party(s): NORTHEAST PUBLISHING co

ATTORNEY - RETAINED ENTERED ON 11/13/2001

Defendant's Attorney: GLEN L PORTER

ASSIGNMENT - SINGLE JUDGE/JUSTICE ASSIGNED TO JUSTICE ON 11/15/2001

JEFFREY L HJELM , JUSTICE

Party(s): NORTHEAST PUBLISHING Co

DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 05/22/2002

FILED BY DEFENDANT: 1. NOTICE TO TAKE ORAL DEPOSITION OF KENNETH STONE; NOTICE TO TAKE

ORAL DEPOSITION OF MARVIN EISENGART, M.D.; 3. NOTICE TO TAKE ORAL DEPOSITION OF HENRY M.

GLOVER, D.O.

Party(s): KENNETH E STONE

DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 07/11/2002

BY PLAINTIFF: NOTICE TO TAKE DEPOSITION OF PAM LYNCH; NOTICE TO TAKE DEPOSITION OF JOHN

BROWNING.

Party(s): KENNETH E STONE

DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 07/11/2002

BY PLAINTIFF: REQUEST FOR PRODUCTION OF DOCUMENTS,

Party(s): KENNETH E STONE

Page 1 of 12 Printed on: 12/01/2003