The opinion
STATE OF MAINE SUPERIOR COURT
Penobscot, SS. Docket No. CV-2015-0046
Beth McPherson, )
Plaintiff, )
)
)
v. ) D_ccision and Order
)
)
Penobscot Aerie No. 3177 FOE, )
Defendant. )
Introduction
Plaintiff seeks relief for gender discrimination in violation of the Maine Human Rights
Act. Her COH'1plaint presents two grounds f r relief in a single count: first, t·hat she was
subjected to sexual harassment while employed by Defendant and, sec nd, that her
employment wa · t nninaled on im.permissable gender-based grounds. Trial was he ld
on Mc1y 10 and May 25, 2016. Th cou rt heard testimony from Plaintiff, Martin Panther,
Howard 8arne tt, George Crouse, Kathy McDonald, and Lawrence Dawson. Following
trial, counsel submitted written arguments.
The court thanks counsel for an efficient presentation at trial and for helpful post-trial
memoranda. The case is now in order for decision.
Evidentiary Ruling
B "for l>laintiff filed her complaint, her concerns were br ught to the attention of the
Maine T uman [{ights Com rnission (MIIRC). At trial, the court accepted de bene
Defendant's Exhibit 1 (the MHRC investigator's report) and Exhibit 2 (the MHRC's
Statement of Finding). Following review of the xhibits and counsel's arguments, the
court excludes the contents of both exhibits as inadmissablc hearsay not subject to the
business records exception. M.R.Evid. 803 (8); Jiemaqn v . Saptarelli !;:n tcr rises In .
486 A.2 126, 131 (Mc. 1984). Both exhibits are admitted for the limited purpose of
proving Plaintiff's compliance with the Maine l-Iurnan Rights Act. 5 M.R.S. § 4622.
Analysis
Defendant hired Plainliff as assistant manag r of its op ra li n in Brewer, Maine, in
February, 2011. The club provides a social setting for, among oth r aclivili -s,
cons umption of alcoholic b 'verage . Plaintiff worked und er the manag r, Chari s
Duncan, until he departed in D comb 'r f 20'! 1, at which Ume Plaintiff was hired to
succeed him as manager. Plaintiff's employment was terminated at a meeting of
Defendant's Board of Trustees in January of 2013. Immediately thereafter, her position
was filled by a man.
• Gendel' Discrimination
Plaintiff argues her claim for gender discrimination is established by both direct and
circumstantial evidence. The court first considers the circumstantial claim, which is
more difficult to establish. In a case based on circumstantial evidence, a plaintiff must
fulfill an initial burden to show the following:
1. Sh- belongs to a protected class;
2. She performed her job satisfactorily;
3. She suffered adverse employment action; and
4. h · emp loye r continu d to have the duties performed by a comparably qualified
person (or still needed to l'rnve the duties performed).
Patten v. Wa1Mart, 300 P.3d 21, 24-25 (1~ Cir. 2002).
In this case, factors l, 3, and 4 are not h, dispute: Plaintiff is a womun, she was fi red
from her job, and the duties were immed iate ly assumed by a man. She testified that she
fulfilled all of h er mploymcnt du tic. and supported her claim with a favorable written
review of her performance as assistant manager (Pl. Ex. 5) as well as with the absence
of any adverse reviews or job actions during her tenure as manager.
In addition to her own testimony, Plaintiff called as witnesses Mr. Panther and Mr.
Crouse who, as members of the Iloard of Trustees, were involved in her dismissal. Mr.
Panther testified that dming Plainliff's tenure as manager Trustee Leo Cookson made
frequ nt, nega tive, gend r-based comments about her job performance. He further
Leslified that the board v t cl a number of times during 2012 on the issue of whether
Plaintiff should be retained in her position. These votes resulled in repeated 3 to 2
decisions to retain Plaintiff. Al the meeting in which Plaintiff's e mploym nl wa
actually terminated, Mr. Crouse left the me ting b ause he did not, gree with the
decision he thought was about to be made. Although the vote was recorded as having
been unanimous, Mr. Panther testified no actual vote had been taken; instead, he sa id,
the trustees had "thrown up lheir hands."
Based on the above, Plaintiff has fulfilled her initial burden of establishing gender
discrimination. The burden therefore shifts to Defendant, to establish gender-neutral
reasons for ils action.
Defendant's proposed gender-neutral reasons for Plaintiff's termination are not
persuasive. All are undermined by the absence of any evidehce showing an adv rse job
review or job action during Plaintiff's tenure as manager. Sh was never warned,
disciplined, or offered a plan of remediation for any alleged shortcomings in her
performance.
One of Defendant's asserted reasons for Plaintiff's termination arose from an event in
which two bnnds. howcd up at the club to play c1t the same time on a Friday evening.
Notwith tt1nding tlrnt the error lny with one of the bands, which had gotten the date
wrong, Plaintiff was thereafter required to work on Friday and Saturday evenings lo
2
preve nt a recurrenc . l laintiff thought this was llnnccessary and resisted lhe directive.
She did, however, comply for a month. In the absence of any wrilten record to the
contrary, Plaintiff's version of the resolution of this dispute, that after about a month
she was allowed to revert to her former schedule, is more persuasive than Defendant's
version, which is that Plaintiff simply refused to work the new schedule.
Defendant's second asserted reason is that Plaintiff was sometimes drunk on the job.
The evidence on this s ubje l was murky at best. l laintiff is a member of the club and,
given the dispute outlined in the preceding parngraph, migh t have been present as a
member on nights in which one or more trus tees thought she shmild have been
working. Further, there was undisputed testimony that another member of the board
actually bought a drink for Plaintiff during working hours (Plaintiff testified she took
one sip, then declined the drink). Finally, once again, there was no evidence of any
disciplinary action having been taken.
Defendant's final asserted reason, that the club was suffering financial hardship from
Plrlintiff's mismanagement, was unsupported by any documentation. To the extent any
such erosion in receipts may have occurred, it was explained by increased competition
from Hollywood Slots and other venues competing for the ame business.
Plaintiff was a good witness. Mr. Panther carried considerable baggage both from his
own disputes with Defendant and from his own harassing actions toward Plaintiff (see
below). His current zeal for Plaintiff's cause is disproportionate to his alleged efforts to
support her during the rneeting in which she was fired. The court concludes on the
whole, however, that Mr. Panther' version of the terms in which Plaintiff was
discussed al board meetings was truthful.
Based on all of the above, Plaintiff has fulfilled her burden of proof. The same
conclusion results when her claim is analyzed in terms of direct evidence of a
dis riminal ry motive. Refer n s to Plaintiff's gender in meetings of the tru st •cs, in
conjunction with complaints about her job performance, establish that Plaintiff's
termination was based at least in part on her gender. Febres v. Challen er Caribbean
Corp., 214 F.3d 57, 60 (1~ Cir. 2000). Based on all the evidence presented, the court does
not believe Dafcndant would have taken the same action had Plaintiff been a man. See
Patten., 300 F.3d at 25.
Analy't.ing the evidence in terms of either direct or circumstantial proof, lhe court
concludes Plaintiff has es tablished her employment wns terminated as a result of
gender discrimination.
• Sexual Harassment
To preva il on her ccond theory of recovery, Plaintiff must prove six things. Watt v.
_UnifiJs LCorp'I 2009 M E 47122 (internal citations omitted). Each is examined in order.
1. She must prove s he is a member of a prolected class. Plaintiff is a woman and
therefore has established this element.
3
2. She must prove she was subject to unwelcome harassment. Plaintiff testified she
was. ubjccted to exually provocative inquiries and directives from two
men1bc1·s of the Board of Trustees (including II Are we going to get naked?" and
"Get on your knees" as well as repeated requests for a kiss and a reference to
kissing in front of third party). One trustee, Mr. Panther, acknowledged his
r le in some of these events. Another trustee denied the events had occurred. In
support of its denial that the events occurred, D fendant provided evidence of its
well-articu.lated and publicized prohibitions of this type of conduct.
(Defen.dant's policy is discussed furth ·'r bel w.) Notwithstanding the policy, the
court finds, based on the weight of p rsuasive testimony, that the events did
occur. Plaintiff has proved this element of her claim.
3. Plaintiff must prove the offensive conduct was based on sex. If the events
occurred, as the court concludes they did, they were unambiguously based on
Plaintiff's gender.
4. She must show the events were severe enough to alter the conditions of
employment and create rm abu ive environment. Plaintiff's testimony that she
found the conduct dislJessing was persuasive. The court concludes the degree of
distress lhe conduct generated all red the conditions of Plaintiff's employment
and, particularly because it was caused by the trw;tces who had the authority to
hire and fire her, created an abusive environment.
5. Plaintiff must show th conduct was both objectively and subjectively
unreasonable. The court concludes it was both.
6. , he must prove that there in a basis for employer liability. The evidence shows,
as noted above, that Defendant has c1n explicit poli.cy prohibiting sexunlly
h, rassing b havior. The prohibition is posted prominently within the club's
physical plant. The prohibition is enforceable by a conscientiously designed
process for challenging and <'Ill viating such onduct. The court does not doubt
the sincerity of the policy or that Defendant's membership as, whole
disapproves of harassing conduct. The evidence shows, however, that the policy
was not effective in preventing the conduct directed toward Plaintiff. She was
not legally required to employ Defendant's internal process in order to file h r
civil nction. Her failure to do so is understandable, given that both of the men
bothering h r were mernbe rs of the 13oard of Tn1 tees charged wHh responsibllily
fm enforcing the policy. See Chambcrli11 v. 101 Realt Inc. 915 F.2d 777, 784 (1 •
Cir. 1990). Purth r, the court notes that Plaintiff did not r sign h "r position and
cotnplc,in of harassment later (although she may have developed a bad altilud :
the evidence suggests she made an obscene and combative comment after after
being lold the trustees wanted her to resume working on Friday and Salu relay
··ven1ngs). Instead, Plaintiff's complaints emerg cl only after IJef ·•ndant had
fired her.
Plaintiff has proved all six elements of her claim for sex discriminalion.
4
Following her discharg , Plaintiff was unable to secure employment that paid her at the
rate h received as Defendant's mc1nager. Her damages for lost earnings were shown
to far xcecd the statutory maximum of $20,000. She is th r for entitled to an award in
that amount. She is also entitled to an award of legal fe s.
Order
Following assessment of legal fees, judgment shall enter in Plaintiff's favor in the
amount of $20,000. Plaintiff's counsel hall submit an affidavit supporting her claim for
legal fees no later than 21 days from the date of this order. Defend,mt's counsel may
respond within ten days thereafte1·.
The clerk is directed to incorporate this order on the docket by reference.
Dated: August 9, 2016
13r c C. Mallonee
sticc, Maine Superior Cou ·
5