The opinion
STATE OF MAINE SUPERIOR COURT
WALDO, SS. DOCKET NO. CV-15- 14
MADELINE SULLIVAN )
Plaintiff )
)
V. )
) DECISION & JUDGMENT
RANDALL-COLLINS POST )
3108 DEPT. OF MAINE )
VETERANS OF FOREIGN )
WARS OF U .S. )
Defendant )
The Plaintiff had filed a two count Complaint asserting claims for relief
under the Maine Human Rights Act. This matter came before the Court for
trial on August 30, 2016. Subsequent to the trial, the parties submitted
written closing arguments for the Court's further review.
Based upon the evidence presented at trial, the Court makes the following
findings.
For a relatively brief period of time from September to November 2013, the
Plaintiff was employed by the Defendant as a bar server in the Defendant's
VFW Hall. The Plaintiff accepted the job offer in order to supplement her
primary employment with the Belfast Harbor Inn.
The Plaintiff generally worked four shifts per week from 11 AM to 5 PM.
Scott Cilley was the bar manager and a supervisor over the Plaintiff. Mr.
Cilley was responsible for making out the Plaintiff's work schedule, and
ultimately was the individual who communicated the Employer's
termination decision to the Plaintiff.
Soon after the Plaintiff began working for the Defendant, Mr. Cilley began a
pattern of harassing behavior which included poking the Plaintiff in her ribs,
grabbing her around her waist, swatting her with a fly swatter and talking
about her breasts. Mr. Cilley also touched the Defendant's legs above her
knee. Mr. Cilley told the Plaintiff he would take her to his bed and made
comments to her about her having a nice butt and squeezing her breasts
which he described as squeezable melons.
The Plaintiff repeatedly rebuffed Mr. Cilley's advances telling him to knock
it off on numerous occasions and slapping his hand when he touched her.
The Plaintiff testified that Mr. Cilley's conduct made her feel disgusting and
cheap.
The Commander of the VFW at the time, Steve Brown, observed some of
the conduct by Mr. Cilley as described above. Mr. Brown failed to take
effective action to stop Mr. Cilley's conduct.
During the course of the Plaintiffs employment, the Defendant experienced
some difficulty with the Plaintiff's work performance. In particular, the
Plaintiff was never able to properly reconcile "pull ticket" sales, thereby
leaving for other employees the task of reconciling these type sales with the
register proceeds. The Defendant employer was also receiving customer
complaints regarding Plaintiff's failure to timely serve the customers.
Finally, the Plaintiff was also responding negatively regarding the
performance of some of her job duties such as the cleaning of bathrooms.
The operations of the Defendant VFW were managed by a House
Committee. One week prior to the Plaintiff's actual termination from
employment, the House Committee voted to terminate the Plaintiff's
employment. The House Committee was not made aware of Mr. Cilley's
harassing behavior toward the Plaintiff prior to or at the time of its'
discussions regarding the termination of Ms. Sullivan.
Mr. Brown instructed Mr. Cilley to inform the Plaintiff of her termination.
The Defendant delayed the actual termination of the Plaintiff for one week
in order to try to find a replacement worker. On the day the Plaintiff was
terminated, early in the shift, the Plaintiff acknowledged that she was
approached by Mr. Cilley who informed her that he needed to speak with her
later that day.
During that same shift, after Mr. Cilley had informed the Plaintiff that they
would need to talk later that day, Mr. Cilley engaged in another incident of
harassing behavior towards the Plaintiff. Specifically, the Plaintiff testified
that Mr. Cilley slapped her in the butt really hard. This incident occurred
while Mr. Cilley was behind the bar and other customers were present.
At the end of that shift, approximately two hours after the slapping incident,
Mr. Ci Iley approached the Plaintiff and informed her that she was being
fired. The Plaintiff was not provided with a specific reason for her
termination.
ANALYSIS
The Plaintiffs Complaint asserts a claim for unlawful employment
discrimination based upon sexual harassment, as set forth in Count 1, and a
claim based upon unlawful retaliation, as set forth in Count 2.
A claim for unlawful employment discrimination may be based on sexual
harassment sufficiently severe or pervasive enough that it creates a hostile
work environment. Watt v. UniFirst C01p., 2009 ME 47. To prevail in a
claim based upon a hostile work environment, the Law Court, in Watt, noted
that the plaintiff must demonstrate:
( l) that she is a member of a protected class; (2) that she was subject
to unwelcome sexual harassment; (3) that the harassment was based
upon sex; ( 4) that the harassment was sufficiently severe or pervasive
so as to alter the conditions of plaintiffs employment and create an
abusive work environment; (5) that sexually 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. Id. at~ 22.
The conduct by the Defendant's employer, Scott Cilley, the supervisor of the
Plainti ff, created a hostile work environment for the Plaintiff which this
Court finds to be actionable under the Maine Human Rights Act.
Count 2 of the Complaint alleges the Defendant retaliated against the
Plaintiff in violation of Title 5 MRSA §4572(1 )(E). This section of law
prohibits an employer from discriminating in any manner against individuals
because they have opposed a practice that would be a violation of the tvlaine
Human Rights Act.
As the Law Court in Doyle v. Department of Human Services, 2003 ME 61,
~20 noted, in part,
To establish a prima facie claim of retaliation, the employee must
show that she engaged in statutorily protected activity; her employer
made an employment decision that adversely affected her; and that
there was a causal link between the protected activity and the adverse
employment action. [Internal citations omitted].
As in this case, when the adverse employment action (Plaintiffs termination)
occurred in close proximity to the protected conduct (Plaintiffs complaint
about the harassing behavior) the burden shifts to the employer to produce
probative evidence of a nondiscriminatory reason for the adverse
employment action. The Comi concludes the House Committee's
consideration of the Plaintiff's poor work performance formed the
nondiscriminatory basis for this Plaintift1s termination from employment.
Accordingly, the Plaintiff has failed to meet her burden of proof in
establishing a causal link between her protected activity and the subsequent
termination.
CONCLUSION
Based upon the findings and analysis set forth above, the Court hereby
renders Judgment in favor of the Plaintiff with respect to the Count 1 claim
of unlawful employment discrimination based on sexual harassment, and
further renders Judgment in favor of the Defendant with respect to the Count
2 claim based upon unlawful retaliation.
With respect to the Count 1 claim, the Plaintiff seeks an award of a civil
penalty against the Defendant in accordance with 5 MRSA §4613(2)(B)(7).
This section authorizes an award of civil penal damages not to exceed
$20,000. The purpose of an award of civil penal damages under this
provision of the Maine Human Rights Act is to penalize wrongdoing by the
employer.
Again, based on the findings noted above, this Court hereby orders the
Defendant to pay Plaintiff civil penal damages in the amount of $15,000 for
its failure to effectively address the hostile work environment to which the
Plaintiff was subjected. The Court also awards the Plaintiff recove1y of her
reasonable attorneys' fees and costs pursuant to 5 MRSA §4614.
The Clerk is directed to incorporate this Decision and Judgment, by
reference, in accordance with MRCivP 79(a).