Ferrante v. Mas Med. Staffing
| Decision Date | 26 March 2015 |
| Docket Number | 2:13-cv-00211-JAW |
| Parties | STEPHANIE M. FERRANTE, Plaintiff, v. MAS MEDICAL STAFFING, Defendant. |
| Court | U.S. District Court — District of Maine |
Stephanie M. Ferrante brought this lawsuit under the Maine Human Rights Act (MHRA) alleging that MAS Medical Staffing (MAS), her former employer, wrongfully discriminated against her on the basis of sex, wrongfully retaliated against her, and constructively discharged her. Having considered the much-disputed record, the Court concludes that under Federal Rule of Civil Procedure 56, there are genuine issues of material fact that require jury resolution on the retaliation but not the sex discrimination claim. The Court also concludes that constructive discharge under the MHRA does not exist as an independent theory of action and the Court grants judgment on that count.
On May 20, 2013, Ms. Ferrante filed a complaint against MAS in Cumberland County Superior Court, alleging that MAS had unlawfully discriminated against her on the basis of sex, and alleging that MAS had wrongfully retaliated against andconstructively discharged her. State Ct. R. Attach. 2, Compl. at 2-3 (ECF No. 2-2) (Compl.). On June 6, 2013, MAS removed the case to this Court. Notice of Removal (ECF No. 1). MAS answered the complaint on June 7, 2013. Answer (ECF No. 5). On June 24, 2013, MAS filed a motion to stay on the ground that its pending Motion for Additional Findings / Motion to Amend before the Superior Court could resolve the entire federal case. Motion to Stay (ECF No. 7). On September 9, 2013, the Superior Court denied MAS's motion, and on September 17, 2013, the Magistrate Judge determined that the Motion to Stay was moot. Report of Hr'g and Order Re: Scheduling (ECF Nos. 20, 21).
On April 3, 2014, MAS filed a notice of intent to file a motion for summary judgment. Notice of Intent to File Summ. J. Mot. & Need for Pre-Filing Conference (ECF No. 31). In anticipation of a Local Rule 56(h) Conference, MAS filed a pre-conference memorandum on April 11, 2014, Local Rule 56(h) Pre-Conference Filing Mem. (ECF No. 35), and Ms. Ferrante responded on May 9, 2014, Pl.'s Resp. to Def.'s Intent to File a Mot. for Summ. J. (ECF No. 36). On May 16, 2014, the Court held a Local Rule 56(h) conference with counsel. Local Rule 56(h) Pre-Filing Conference (ECF No. 37).
On June 13, 2014, MAS moved for summary judgment with a supporting statement of material facts. Def.'s Mot. for Summ. J. (ECF No. 38) (Def.'s Mot.); MAS's Statement of Material Facts Regarding Summ. J. (ECF No. 39) (DSMF). On June 30, 2014, Ms. Ferrante responded to MAS's motion, filed a statement opposing MAS's statement of material facts, and filed her own statement of material facts. Pl.'sMem. of Law in Opp'n to Def.'s Mot. for Summ. J. (ECF No. 45) (Pl.'s Opp'n); Pl.'s Opp'n to Def.'s Statement of Material Facts (ECF No. 42) (PRDSMF); Pl.'s Statement of Material Facts (ECF No. 43) (PSAMF). On July 10, 2014, MAS filed a reply to Ms. Ferrante's opposition and to her statement of material facts. Def.'s Reply to Pl.'s Opp'n to Mot. for Summ. J. (ECF No. 49) (Def.'s Reply); Def.'s Resp. to Pl.'s Statement of Material Facts (ECF No. 50) (DRPSAMF).
MAS, founded in 2002, is a company that provides staff relief to health care facilities in Maine, New Hampshire, and Rhode Island. DSMF ¶¶ 1, 3; PRDSMF ¶¶ 1, 3. There are two divisions in the Westbrook, Maine MAS office: Elder Services and Children's Services. DSMF ¶ 13; PRDSMF ¶ 13.
MAS has a sexual harassment policy that provides in part:
MAS Medical Staffing and Home Care of Maine wants to ensure that its employees can work without being subjected to sexual harassment. Sexual harassment is unwanted attention of a sexual nature, often with an underlying element of threat or coercion. It can also include sexist remarks or verbal abuse directed towards a person or a gender.
DSMF ¶ 5; PRDSMF ¶ 5. MAS has a practice of educating employees about its sexual harassment policy. DSMF ¶ 8; PRDSMF ¶ 8. There are posters on employee's rights and responsibilities in MAS's Westbrook office.2 DSMF ¶12; PRDSMF ¶12. AlthoughMs. Ferrante began working for MAS on May 9, 2011, she received the company's sexual harassment policy on July 20, 2011. DSMF ¶¶ 6, 9; PRDSMF ¶¶ 6, 9.
MAS hired Ms. Ferrante as a scheduling coordinator in its Elder Services division at the Westbrook office. DSMF ¶¶ 6, 7; PRDSMF ¶¶ 6, 7. Ms. Ferrante's supervisor in Elder Services was Pamela Wing. Def.'s Mot. at 1. Ms. Ferrante believed she "thrived" as a scheduler. DSMF ¶ 10, PRDSMF ¶ 10. During her time as an employee at MAS, she was never disciplined for poor job performance or put on a performance improvement plan. DSMF ¶ 108; PRDSMF ¶ 108. Ms. Ferrante documented her tasks, experiences, and feelings from July to December of 2011 including removal of job duties and feelings of ostracism, in written Memoranda for Records (MFR); the memoranda are not a complete list of those experiences, however.3 DSMF ¶ 100; PRDSMF ¶ 100.
The atmosphere in Elder Services was different from Children Services, and Ms. Ferrante described Elder Services as "chaotic". DSMF ¶13; PRDSMF ¶ 13. Ms. Ferrante would typically eat lunch at her desk in her cubicle, but would eat lunch inthe conference room if Ken Johnson, co-founder and vice president of MAS, visited the office. DSMF ¶¶ 1, 2, 11; PRDSMF ¶¶ 1, 2, 11.
On either June 28 or 29, 2011, Ms. Ferrante met with Ms. Joy of Human Resources to discuss her concerns about the conduct of her supervisor, Ms. Wing. DSMF ¶ 34, PRDSMF ¶ 34. On July 5, 2011, Ms. Ferrante met with Ms. Joy about the possibility of transferring. DSMF ¶ 45; PRDSMF ¶ 45. On July 6, 2011, MAS temporarily transferred Ms. Ferrante for thirty days to the Children's Services division where she would report to Kim Proulx.4 DSMF ¶¶ 47, 49; PRDSMF ¶¶ 47, 49. On July 14, 2011, Ms. Ferrante was hired for the Director's Assistant position at a higher rate of pay; this position reported to Ms. Proulx.5 DSMF ¶¶ 52, 59; PRDSMF ¶¶ 52, 59. Her office remained in the same place after the transition to her new position. DSMF ¶ 109; PRDSMF ¶ 109.
On December 2, 2011, Ms. Ferrante submitted a request for time off from 2:45 p.m. until the end of the day, citing "workplace harassment", and on December 5,2011, Ms. Ferrante sent a document to Ms. Proulx stating, "This letter serves as official notification of my forced resignation because of the harassment and retaliation which I have endured and continue to endure without any sign of abatement." DSMF ¶¶ 110, 111; PRDSMF ¶¶ 110, 111.
Beginning when Ms. Ferrante joined MAS and continuing on an almost-daily basis until at least July 17, 2011, Ms. Ferrante's supervisor, Ms. Wing, made sexually inappropriate comments at work.6 PSAMF ¶¶ 1-3, 34. Ms. Wing was the only MAS employee who made comments that Ms. Ferrante characterizes as sexually inappropriate. DSMF ¶ 14; PRDSMF ¶ 14. Shortly after Ms. Ferrante began working at MAS, Ms. Wing mentioned that Ms. Ferrante had to be Italian because Ms. Ferrante had "dick-sucking lips." DSMF ¶ 15; PRDSMF ¶ 15. On June 1, 2011, Ms. Wing stated that she had to leave early to go "home to give her husband a nooner."7DSMF ¶ 16; PRDSMF ¶ 16; PSAMF ¶ 5; DRPSAMF ¶ 5. In response, Ms. Ferrante was disgusted and expressed her shock; she asked Ms. Wing if she was kidding, and Ms. Wing responded, "you think I am kidding?" 8 DSMF ¶ 17, PRDSMF ¶ 17. This made Ms. Ferrante feel "disgusted" and "totally uncomfortable." DSMF ¶ 17; PRDSMF ¶ 17. Ms. Ferrante was able to return to work and get her work done that day, however. DSMF ¶ 18; PRDSMF ¶ 18.
On June 2, 2011, Ms. Wing was standing with another employee behind Ms. Ferrante's cubicle and mentioned going home and giving her husband "another episode like yesterday." DSMF ¶ 19; PRDSMF ¶ 19; PSAMF ¶ 7; DRPSAMF ¶ 7. In response, Ms. Ferrante said to Ms. Wing, "please don't talk like that around me . . . I don't want you to talk like that in front of me." DSMF ¶ 19; PRDSMF ¶ 19; PSAMF ¶ 8; DRPSAMF ¶ 8. Again, Ms. Ferrante was able to return to work and complete her work that afternoon. DSMF ¶ 20; PRDSMF ¶ 20.
Ms. Wing talked about being intimate with her husband on more occasions than those Ms. Ferrante documented, and only made the sexual comments in the presence of women; almost all of the employees at the Westbrook office were women, however.9 PSAMF ¶¶ 4, 18; DRPSAMF ¶ 4, 18. On one occasion, Ms. Ferrante askedMs. Wing to "stop the inappropriateness". PSAMF ¶16; DRPSAMF ¶ 16. Ms. Wing continued to make comments while standing behind Ms. Ferrante's desk, which Ms. Ferrante felt was a direct response to her request for the behavior to stop.10 PSAMF ¶17; DRPSAMF ¶ 17.11
On June 3, 2011, Ms. Wing shared with co-workers that her husband is nicknamed "Scuba Steve" because he suggested that a caregiver "put on some scuba gear and dive down with a scrub brush in a large woman's fat rolls and clean her'cooter.'"12 DSMF ¶¶ 21, 22; PRDSMF ¶¶ 21, 22. In front of other employees, Ms. Wing asked Ms. Ferrante for the Italian translation of "vagina" and when Ms. Ferrante did not respond, Ms. Wing coaxed her for an answer. 13 DSMF ¶¶ 23, 24; PRDSMF ¶¶ 23, 24; PSAMF ¶ 12; DRPSAMF ¶ 12. In response, Ms. Ferrante put her head on her desk and said, "this is so inappropriate . . . I need to work." PSAMF ¶ 13; DRPSAMF ¶ 13.
In 2011, only two men worked at the MAS Westbrook office and as of July 8, 2011, only one man, Duane Manning, worked at that office. DSMF ¶¶ 25, 26; PRDSMF ¶¶ 25, 26. Mr. Manning's office was on the opposite end of the office from where Ms. Ferrante, Ms. Wing, and Ms. Proulx worked. DSMF ¶ 27; PRDSMF ¶ 27. Male employees were "few and far...
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