# Stanley v. Hancock County Commissioners

> Supreme Judicial Court of Maine · December 23, 2004 · 864 A.2d 169

URL: https://www.frixlaw.com/law-library/cases/9691904

## Case

- **Full name:** Ronald STANLEY v. HANCOCK COUNTY COMMISSIONERS
- **Court:** Supreme Judicial Court of Maine
- **Decided:** December 23, 2004
- **Citations:** 864 A.2d 169; 22 I.E.R. Cas. (BNA) 462; 2004 ME 157; 2004 Me. LEXIS 189
- **Precedential status:** Published
- **Opinion:** Dissent by Alexander
- **Judges:** Saufley, Clifford, Rudman, Dana, Alexander, Calkins, Levy
- **Cited by:** 117 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9691904

## How later opinions describe it (automated extraction)

- stating that nonmoving party may generate factual dispute about pretext by denying moving party’s assertions and supporting denials “with record citations to circumstantial evidence that the ... nondiscriminatory explanation was unworthy of credence”
- stating that a defendant is entitled to rely on circumstantial evidence of pretext in making out a prima facie case for a WPA claim
- recognizing that “self-serving” statements and circumstantial evidence can be used to establish or dispute a material fact
- holding that a party’s failure to properly controvert statements of material fact results in admission of those facts

## Opinion text

ALEXANDER, J.,
with whom DANA and CALKINS, JJ., join, dissenting.
[¶ 35] I respectfully dissent. The Court today holds that a disputed issue of intent or motivation may be decided by a summary judgment as a question of law. It does so by ignoring the developing law that, in mixed motives discrimination cases, a plaintiff may rely on circumstantial evidence to allow a fact-finder to disbelieve a defendant’s proffered nondis-eriminatory explanation for an employment action and leave the disputed issue of motivation for decision by the fact-finder. The court reaches this result by rigorously applying the rules of summary judgment practice against the plaintiff in a case where both parties failed to follow proper summary judgment practice. By its action the Court rewards a flagrant violation of our rules and promotes focus on technicality reminiscent of the rigors of common law pleading, leading to trial by paper canceling the right to trial by jury.
*180 [¶ 36] In this case, one subjective issue is presented for determination — whether there is a dispute as to the material fact that Stanley’s termination was motivated in whole or in part by his complaints about violations of the electrical code. Addressing factual determinations of intent or motivation issues, we have held that, “There is rarely, if ever, direct evidence of a defendant’s mental state .... Of necessity, the mental state must be proven by circumstantial evidence.” State v. McEachern, 431 A.2d 39, 42 (Me.1981). 7 A factual determination of a motivation issue is heavily dependent on inferences, circumstantial evidence, and credibility determinations that do not easily allow resolution by summary judgment. The United States Supreme Court has confirmed that use of circumstantial evidence is appropriate in determining whether a plaintiffs protected class or status may have been a motivating factor for an adverse employment action that is at issue in a civil rights case. Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-102 , 123 S.Ct. 2148 , 156 L.Ed.2d 84 (2003).
[¶ 37] The Court’s approach, treating a question of motivation or intent in a civil rights case as an issue of law, resolvable by summary judgment, joins some other respected appellate and trial courts. 8 However, in its opinion the Court ignores the observation in Desert Palace that, in a mixed motives case, “evidence that a defendant’s explanation for an employment practice is ‘unworthy of credence’ is ‘one form of circumstantial evidence’ that is probative of intentional discrimination.” 539 U.S. at 100 , 123 S.Ct. 2148 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 , 120 S.Ct. 2097 , 147 L.Ed.2d 105 (2000) (emphasis in original)). Other recent precedent also recognizes that, in employment discrimination cases, summary judgment may be avoided by reliance on circumstantial evidence that a fact-finder could disbelieve a defendant’s proffered nondiscriminatory explanation for an employment action, and that such determinations are best left to a jury. See Che v. Massachusetts Bay Transp. Auth., 342 F.3d 31 (1st Cir.2003), in which the First Circuit denied a motion for judgment as a matter of law in an employment discrimination case, stating that “[t]his court has consistently held that determinations of motive and intent, particularly in discrimination cases, are questions better suited for the jury, as proof is generally *181 based on inferences that must be drawn, rather than on the proverbial ‘smoking gun.’ ” Id. at 40 9 (quoting Petitti v. New England Tel. & Tel. Co., 909 F.2d 28, 34 (1st Cir.1990)). See also Ricci v. Applebee’s Northeast, Inc., 297 F.Supp.2d 311 (D.Me.2003), recons. granted, 301 F.Supp.2d 51 (D.Me.2004) (granting motion for reconsideration and clarification, but denying defendant’s substantive claims). In the Ricci case, after finding that Ricci had established the prima facie case and that Applebee’s had articulated a legitimate nondiscriminatory reason for the adverse employment action, id. at 318-25 , the District Court analyzed whether Ricci provided sufficient proof of pretext to survive summary judgment, id. at 325-26 . In so doing, the court did not look at whether Ricci properly responded to the specific statements of material fact that established the legitimate reasons for Ap-plebee’s actions. Id. Instead, the court looked at the record as a whole to determine if it contained sufficient evidence of pretext. Id. at 326 . The Court stated: “[I]t suffices to say that the evidence taken as a whole, if believed, would allow a reasonable fact[-]finder to conclude that Ap-plebee’s acted with discriminatory animus against Ms. Ricci in its action....” Id. at 326 .
[¶ 38] Recently, liberal use of summary judgment practice to resolve factual disputes regarding motivation or intent — almost always in favor of a defendant — has been sharply criticized as violative of both the basic purpose of the summary judgment rule and the essential right to a trial by jury guaranteed by our state and federal constitutions 10 and our civil rules. 11 Arthur R. Miller, one of the preeminent civil practice scholars of our time, observes that: “Overly enthusiastic use of summary judgment means that trialworthy cases will be terminated pretrial on motion papers, possibly compromising the litigants’ constitutional rights to a day in court and jury trial.” Arthur R. Miller, The Pretrial Rush to Judgment: Are the “Litigation Explosion,” “Liability Crisis,” and Efficiency Cliches Eroding Our Day In Court and Jury Trial Commitments ? 78 N.Y.U. L. Rev. 982 , 1071 (2003).
[¶ 39] Nearly sixty years ago, Second Circuit Judge Jerome N. Frank, deciding against summary judgment in a case involving a highly implausible copyright infringement claim, stated that a plaintiff “must not be deprived of the invaluable privilege of cross-examining the defendant — the ‘crucial test of credibility’ — in the presence of the jury.” Arnstein v. Porter, 154 F.2d 464, 469-70 (2d Cir.1946). Accord Subin v. Goldsmith, 224 F.2d 753, 758-59 (2d Cir.1955). This was the conventional wisdom of summary judgment practice on credibility and subjective judgment issues in the years immediately following the 1938 adoption of the Federal Rules of Civil Procedure.
[¶ 40] The 1980s and 1990s saw a newer standard of judicial relativism adopted by some courts that would grant summary judgment in cases viewed as having a very limited chance of success despite the existence of some disputes as to material facts. See supra note 8. Thus, the First Circuit *182 observed: “Summary judgment is a device that ‘has proven its usefulness as a means of avoiding full-dress trials in unwinnable cases, thereby freeing courts to utilize scarce judicial resources in more beneficial ways.’ ” Mullin v. Raytheon Co., 164 F.3d 696, 698 (1st Cir.1999) (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.1991)). Writing in 1990, Judge Richard A. Posner stated that scheduling and docket pressure “makes appellate courts reluctant to reverse a grant of summary judgment merely because a rational fact-finder could return a verdict for the non-moving party, if such a verdict is highly unlikely as a practical matter because the plaintiffs case ... is marginal.” Shager v. Upjohn Co., 913 F.2d 398, 403 (7th Cir.1990) (emphasis in original).
[¶ 41] The Court’s opinion today effectively adopts this relativist approach to determination of fact disputes in summary judgment cases. In so doing, it changes Maine law.
[¶ 42] We have continued to review statements of material facts and referenced record evidence to determine if that record reveals a genuine issue of material fact. Rogers v. Jackson, 2002 ME 140, ¶ 5 , 804 A.2d 379, 380 . A genuine issue of material fact remains any time the evidence “requires a fact[-]finder to choose between competing versions of the truth at trial.” MP Assocs. v. Liberty, 2001 ME 22, ¶ 12 , 771 A.2d 1040, 1044 . Any ambiguities must be resolved in favor of the nonprevailing party, Beaulieu v. The Aube Corp., 2002 ME 79, ¶ 2 , 796 A.2d 683, 685 , and, up until now, summary judgment has been precluded if there remain any disputes as to material facts.
[¶ 43] While the Court moves toward a relativist standard for summary judgment review, current legal thought may be moving in the other direction. Justice Thomas’s opinion in Desert Palace emphasizes the importance of leaving questions of motivation, almost always a circumstantial evidence issue, to the fact-finder. Professor Miller’s article, The Pretrial Rush to Judgment, makes a compelling case for respecting the right to jury trial and limiting summary judgment to cases where there are no disputes as to material facts. In a 2002 opinion, In re High Fructose Corn Syrup Antitrust Litigation, 295 F.3d 651 (7th Cir.2002), Judge Posner seemed to be moving away from his prior relativist position, writing that in summary judgment practice, courts must not weigh conflicting evidence, id. at 655-56 , and that plaintiffs’ presentation of “some evidence,” id. at 660 , on a material issue was enough to avoid summary judgment, even if a competing hypothesis may seem more plausible, id. at 662, 666 . Miller notes that Posner’s view “projects sensitivity toward the need to differentiate fact and law, what is determinable on a pretrial motion and what should be left for trial, and the respective roles of judges and juries.” Miller, The Pretrial Rush to Judgment, 78 N.Y.U. L. Rev. at 1093.
[¶ 44] Turning to the record of the present case, the Court and the parties agree that Stanley established a prima facie case for illegal discrimination. The Court then concludes that, on the motivation issue, Stanley failed to adequately rebut the County Commissioners’ proffered nondiscriminatory reasons for his termination. The Court’s conclusion is heavily dependent on Stanley’s failure to comply with the rules governing summary judgment practice in his responses to the County Commissioners’ lengthy statement of material facts.
[¶ 45] Because summary judgment is intended to promote prompt and simplified resolution of cases, entry of a summary judgment is appropriate only if the portions of the evidentiary record “referred to *183 in the statements [of material fact] show that there is no genuine issue as to any material fact set forth in those statements and that any party is entitled to a judgment as a matter of law.” M.R. Civ. P. 56(c); Botka v. S.C. Noyes & Co., 2003 ME 128, ¶ 18 , 834 A.2d 947, 952-53 . Consistent with the objective that summary judgment be a simple and efficient process, Rule 56 requires that the moving party’s statement of material facts must be “separate, short, and concise.” M.R. Civ. P. 56(h)(1). The same is required of any nonmoving party’s opposing statement, M.R. Civ. P. 56(h)(2), and any reply statement, M.R. Civ. P. 56(h)(3).
[¶46] A party’s opposing statement of material facts “ ‘must explicitly admit, deny, or qualify facts by reference to each numbered paragraph, and a denial or qualification must be supported by a record citation.’ ” Doyle v. Dep’t of Human Servs., 2003 ME 61, ¶ 10 , 824 A.2d 48, 52 (quoting Levine v. R.B.K. Caly Corp., 2001 ME 77 , ¶ 6 n. 5, 770 A.2d 653, 655 ); M.R. Civ. P. 56(h)(2). “Pacts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted.” M.R. Civ. P. 56(h)(4).
[¶ 47] The summary judgment practices employed by both parties in this case deviated considerably from these requirements. As noted above, only one narrow issue is in dispute: whether Stanley’s WPA-protected complaints were a motivation for his discharge. The statement of material facts submitted by the Commissioners in support of their motion was a flagrant violation of M.R. Civ. P. 56(h)(1). Instead of addressing the one narrow issue in a “separate, short, and concise” statement, the Commissioners filed a disorganized and repetitive statement listing 191 separate points, with similar or identical statements being repeated often two and, occasionally, three times.
[¶ 48] In determining how to respond to this seriously disorganized, extensive, and repetitive statement in violation of Rule 56(h)(1), Stanley faced a dilemma. He might have objected and moved to strike some or all of the Commissioners’ statement of material facts as violative of M.R. Civ. P. 56(h)(1), requiring that statements be separate, short, and concise. Such a tactic would have led to a collateral proceeding, generating more expense and paperwork, probably without any real prospect of a result that might significantly benefit any move toward resolution of the litigation. Alternatively, Stanley could have undertaken the considerable effort and expense required to respond individually, with appropriate record citations, to each of the 191 statements of material fact. Such a response would have generated a large amount of work for Stanley and risked violating the rule that his opposition to the statement of material facts must be “separate, short, and concise.” M.R. Civ. P. 56(h)(2). Instead, Stanley opted for a third alternative. He responded by admitting, denying, or qualifying with appropriate record citations, as the rules require, the specific factual claims made in the Commissioners’ statement of material facts. For those statements of material fact that include subjective or judgmental claims or statements regarding the state of mind of interested parties, Stanley responded with the statement noting that, to the extent that the statement reflected a comment about state of mind or opinion of an individual, the court was free to disregard it.
[¶ 49] In addition to his response to the County Commissioners’ statement of material facts, and as authorized by M.R. Civ. P. 56(h)(2), Stanley provided his own separate statement of additional facts that was *184 generally compliant with the rules, being separate, short, concise, adequately organized, and nonrepetitive. By this approach, Stanley indicated his acceptance or disagreement with precise facts stated in the Commissioners’ statements, and he indicated nonacceptance of the subjective, judgmental, or state of mind opinions indicated in the Commissioners’ statements. He then, separately, laid out the facts in support of his claim rather than have his opposition and points he wished to make lost in the many responses to the disorganized and repetitive statement by the Commissioners.
[¶ 50] Had the Commissioners filed a proper, short, and concise statement of material facts, I would agree with the Court that Stanley’s responses calling on the Court to disregard the subjective, judgmental, or state of mind opinions were inadequate and should cause those statements to be deemed admitted pursuant to M.R. Civ. P. 56(h)(4) because they were not properly controverted. However, I do not concur that Stanley’s responses should be deemed to admit the subjective, judgmental, or opinion statements within the excessive statement of material facts submitted by the Commissioners in this case. Stanley’s response made his opposition to such statements evident. His response recognized that a fact-finder may disbelieve such statements even if uncontradict-ed, In re Heather G., 2002 ME 151, ¶ 9 , 805 A.2d 249 , 251 and, perhaps, most importantly, Stanley then put forward a properly organized statement of material facts .supporting his claim. Both parties violated the rules for proper summary judgment practice in this ease. One party should not profit from this violation while the other is penalized.
[¶ 51] The key elements of Stanley’s additional statement of facts were as follows:
8. Commencing in October 1997, Bick-ford and the Plaintiff met daily and discussed various issues. Among the issues discussed was the -issue of Plaintiff performing electrical work without a license. See Bickford dep. Pg. 18 lines 2-24.
9. Bickford recalls specific conversations that he had with Mr. Stanley after Mr. Urquart was hired by the County in which the Plaintiff expressed to Mr. Bickford his concern that he was directed to do certain electrical work. See Bickford dep. Pg. 19 lines 17-25, pg. 21 lines 1-17.
30. Stanley had made oral complaints of persons doing electrical jobs who were not licensed to perform such tasks and complains that he could not perform certain electrical jobs as he was not a licensed electrician. See Stanley dep. Pg. 97, lines 20-25.
33. Urquart told Stanley shortly after he started with the County that the Commissioners had told him to find a reason to fire Stanley. See Stanley dep. Pg. 125, lines 1-7.
36. There were a number of occasions in which Stanley complained to the Commissioners, through the County Clerk, that he was being asked or expected to perform electrical work which required an electrician’s license. See Stanley aff. ¶ 4.
38. . Prior to Perley Urquart being hired, Stanley would meet with the County Clerk on an almost daily basis to discuss the facilities and concerns Stanley may have. Stanley expressed frequently that he was being asked to perform electrical work which required an electrician’s license. See Stanley aff. ¶ 6.
39. Stanley still continued to meet with the County Clerk but on a somewhat less frequent basis after Mr. Urquart *185 was hired by the County. He let the clerk know that he was being asked and expected to perform electrical wiring tasks which required an electrician’s license. See Stanley aff. ¶ 7.
[¶ 52] The court concludes that summary judgment was appropriate because Stanley failed to generate a dispute as to material fact as to whether there was a causal connection between his complaint that unlicensed individuals were being asked to perform electrical work and his termination. In this analysis, the Court is engaging in the process, criticized by Miller, of evaluating the significance of Stanley’s evidence and its likelihood of success before a jury. Stanley’s additional statements of fact, quoted above, establish at least a dispute as to material fact as to the timing of the adverse employment reviews in relation to Stanley’s complaints regarding unlicensed electrical work and whether there was a causal connection between those complaints and the motivation for his dismissal.
[¶ 53] Stanley asserts that his new supervisor told him that the County Commissioners wanted to fire him, and had directed Stanley’s supervisor to find an excuse to fire him. He was fired soon after making the most recent of his WPA-protected complaints. It extends logic to find, as the Court does, that there can be no dispute as to material fact that the entity that wanted to fire Stanley, and had told his supervisor to find an excuse to fire him, was not motivated, at least in part, by his protected complaints when he was fired soon after his most recent complaint.
[¶ 54] A motion for summary judgment must be denied if there remains for resolution by the fact-finder any dispute as to the material facts. See MP Assocs., 2001 ME 22, ¶ 12 , 771 A.2d at 1044 . Here, there is a dispute as to material facts as to the timing of Stanley’s complaints in relation to his adverse employment reviews and whether the motivation of the adverse employment actions was irrelevant to Stanley’s complaints.
[¶ 55] Stanley may have a difficult case to prove to a fact-finder in light of other evidence of inadequate job performance. Certainly, a fact-finder could find, and perhaps would find, that no causal connection existed between Stanley’s complaints and his dismissal. But that is a decision that must be reached after trial. The evidence here, including evidence of Stanley’s complaints of unlicensed electrical work preceding his adverse employment reviews and his dismissal, and evidence that his supervisor told Stanley that he had been directed to find a way to fire him, creates at least a dispute as to material fact on these points. It certainly does not establish, beyond dispute, that there was no causal connection between Stanley’s complaints and his discharge. Accordingly, I would vacate the judgment of the Superior Court and remand for a trial.
. See also Maine Jury Instruction Manual § 6-39 at 6-53 (4th ed. 2004) (“Intent or mental state ordinarily cannot be proved directly, because there is rarely direct evidence of the operations of the human mind. But you may infer a person’s intent or state of mind from the surrounding circumstances.”).
. See Ann C. McGinley, Credulous Courts and the Tortured Trilogy: The Improper Use of Summary Judgment in Title VII and ADEA Cases, 34 B.C. L. REV. 203, 208 (1993). See also Lewis v. City of Boston, 321 F.3d 207, 211-13, 220 (1st Cir.2003) (holding temporal proximity between employee’s public criticism of school district and the elimination of his position insufficient to overcome evidence of neutral reasons for the position elimination that included budget-required reductions in force); Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760 (7th Cir.2002) (affirming holding that evidence presented by plaintiff could not support conclusion that defendant had acted with deliberate indifference); Saxton v. Am. Tel. & Tel. Co., 10. F.3d 526, 533-35 (7th Cir.1993) (holding that plaintiff failed to establish hostile work environment for purposes of sexual harassment claim); Moore v. Nutrasweet Co., 836 F.Supp. 1387, 1389-1404 (N.D.Ill.1993) (finding that employer had legitimate, nondiscriminatoiy reason for excluding plaintiff from bonus program and terminating plaintiff in action alleging race and sex discrimination); Bernard v. Bethlehem Steel Corp., 837 F.Supp. 215 (E.D.Tex.1993) (holding that plaintiff failed to show that employer's reason for terminating him was pre-textual).
. As indicated in Lewis , however, the First Circuit had, earlier in 2003, allowed summary judgment in an employment discrimination case where intent was at issue. Lewis, 321 F.3d at 220 .
. Cf. U.S. Const. amend. VII; Me. Const. art. I. § 6.
. Fed. R. Civ. P. 38(a); M.R. Civ. P. 38(a). M.R. Civ. P. 38(a) states: "The right of trial by jury as declared by the Constitution of the State of Maine or as given by a statute shall be preserved to the parties inviolate.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9691904. Public record. Not legal advice.