Walsh v. Town of Millinocket.

• Decision Date: 08 September 2011
• Docket Number: Docket No. Pen–10–478.
• Citation: 32 IER Cases 1504,28 A.3d 610,2011 Me. 99
• Parties: Mary WALSHv.TOWN OF MILLINOCKET.
• Court: Maine Supreme Court

28 A.3d 610

32 IER Cases 1504

2011 ME 99

Mary WALSH

v.TOWN OF MILLINOCKET.

Docket No. Pen–10–478.

Supreme Judicial Court of Maine.

Argued: June 14, 2011.Decided: Sept. 8, 2011.

Melissa A. Hewey, Esq.(orally)Kaighn Smith, Esq., Elek A. Miller, Esq., Drummond Woodsum, Portland, ME, for the Town of Millinocket.ArthurJ. Greif, Esq.(orally) Julie D. Farr, Esq., Gilbert & Greif, P.A., Bangor, ME, for Mary Walsh.Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.ALEXANDER, J.

[¶ 1] In this case, a jury has found, twice, that a Town Councilor exhibited discriminatory animus towards Mary Walsh because she had engaged in statutorily-protected conduct, and that this discriminatory animus was a cause or a motivating factor for the Millinocket Town Council's decision to eliminate Mary Walsh's position and thus terminate her employment with the Town.Walsh contends that discriminatory animus expressed by one member of the Town Council can be found to be a cause or a motivating factor for an adverse employment action approved by a vote of a Town Council.The Town contends that the lack of evidence of discriminatory animus by any other member of the Town Council insulates the Town from liability in Walsh's discrimination action, despite the jury's findings of causation.

[¶ 2] Resolution of these divergent views of the law of causation in a discrimination action is the central issue in this appeal.We conclude that our established jurisprudence for discrimination actions, placing the burden on the plaintiff to prove, by a preponderance of the evidence, causation of an adverse employment action by a discriminatory act or discriminatory animus, is sufficient to govern such actions.No change in a plaintiff's burden of pleading or proof is required when it is alleged that a discriminatory act or discriminatory animus of one or a minority of members of a multi-member decision-making body was a motivating factor for an adverse employment action.

I.APPEAL SUMMARY

[¶ 3] The Town of Millinocket appeals and Mary Walsh cross-appeals from the judgment and order of the Superior Court(Penobscot County, Anderson, J.) entered following a retrial at which the jury found that Walsh, the former Town Recreation Director, had engaged in activities protected by Maine's Whistleblowers' Protection Act, 26 M.R.S. 831–840(2010),¹ when she reported to the Maine Department of Conservation unsafe conditions on Town-owned snowmobile trails, and that those protected activities were a substantial motivating cause for the Town's decision to eliminate her position.The jury awarded Walsh $30,000 in compensatory damages, and, on issues left for the court, the court awarded Walsh back pay of more than $60,000, as well as attorney fees and costs.

[¶ 4] The Town argues that (1) it cannot be held liable on Walsh's claim because there is no dispute that the majority of the seven-person Town Council was not motivated by discriminatory animus when it voted to eliminate Walsh's position; and (2)the court's causation instruction was erroneous because it did not require the jury to find that Walsh's protected conduct was the substantial motivating factor for the votes of a majority of the Town Council.In her cross-appeal, Walsh contends that the court erred in (1) determining the amount of back pay to which she was entitled; (2) declining to order reinstatement to her position; and (3) refusing to award Walsh front pay until reinstatement to her former position was possible.We affirm the trial court's judgment.

II.CASE HISTORY

[¶ 5] When a jury has found in favor of the plaintiff on her claim for employment discrimination, we review the facts in the light most favorable to the plaintiff.SeeSullivan v. Porter,2004 ME 134, ¶ 2, 861 A.2d 625;Staub v. Proctor Hospital,––– U.S. ––––, 131 S.Ct. 1186, 1189, 179 L.Ed.2d 144(2011).

[¶ 6] In 1993, Mary Walsh began working for the Town of Millinocket's recreation department.In 2000, she was promoted to recreation director.One of Walsh's responsibilities was to be the grant administrator for State grants to support maintenance of the Town's snowmobile trails.The Town contracted with the Twin Pines Snowmobile Club to maintain and groom the trails.To perform the grooming functions, Twin Pines utilized employees from New England Outdoor Center, a business owned and operated by Millinocket Town CouncilorMatthew Polstein, who also served as Twin Pines' president.

[¶ 7] In the winter of 2004–2005, Walsh complained repeatedly about the condition of the snowmobile trails to both the Town Manager and Polstein.She asserted that the corners of the trails had been banked too high, that trail surfaces were “washboarded”(severely uneven), and that inadequate signage had been placed on the trails.Because Walsh believed that the Town and Polstein were not responding adequately to her concerns, she complained to a snowmobile division director within the Maine Department of Conservation.Polstein was aware of Walsh's contact with the Department of Conservation.

[¶ 8] In February 2005, Walsh had lunch with friends at a local restaurant.She told them that she was frustrated that Polstein was not taking her concerns seriously.Walsh also told her companions that she would not have a problem “calling the state on anyone who wasn't doing their job.”Two days later, Walsh received an email from Polstein that read, in part, “Mary, you should be careful about how loud you talk when you're out on the town, talking town politics, i.e. eating at the [restaurant]!The walls always have ears in this town, as you should know.”

[¶ 9] In March, outside the same restaurant, Polstein blocked the car in which Walsh was sitting with his car so that she could not leave.Polstein then shouted, “Mary, what did I tell you about having lunch at [the restaurant]?”Polstein asked Walsh what her problem was and became “visibly angry” when Walsh informed him that she had reported the trail maintenance problem to the Department of Conservation.As a result of these incidents, Walsh felt threatened and believed that her job was in jeopardy, given Polstein's position as a Town Councilor.

[¶ 10] In May 2005, a proposal that would lead to the outsourcing of the Town's recreation services to another town was presented to the Town Council for a vote.At the council meeting, only one local citizen—Polstein's wife—spoke in favor of the proposal, which would eliminate Walsh's position entirely.Several citizens spoke against the proposal.On June 23, 2005, the Town Council voted four to three in favor of outsourcing; Polstein was a member of the majority.As a result of the vote, Walsh's position was eliminated.

[¶ 11] Walsh filed a complaint of discrimination with the Maine Human Rights Commission, pursuant to 5 M.R.S. 4611(2008)and26 M.R.S. 834–A(2010).After review, the Commission issued her a “right-to-sue” letter, pursuant to 5 M.R.S. 4612(6)(2010).

[¶ 12] In June 2007, Walsh filed a complaint against the Town in the Superior Court, pursuant to 5 M.R.S. 4621(2010), claiming a violation of the Maine Whistleblowers' Protection Act (WPA), 26 M.R.S. 831–840.The Town filed a motion for summary judgment based on its claim that because only one councilor possessed discriminatory animus against Walsh, the council's decision could not be causally connected to that discrimination.The court denied the motion.

[¶ 13] A jury trial began on September 8, 2008.On September 10, 2008, the jury returned a verdict for Walsh and awarded her $25,000.After the verdict, the Town filed a motion for a new trial.The court granted the motion, concluding that it had erred in not allowing the Town to present testimony from the other members of the Town Council who had voted on the position elimination proposal.

[¶ 14] The second trial was held from August 17 to 20, 2009.The facts discussed above are derived from the evidence presented at the second trial.During the trial, as the Town prepared to present the other Town Council members to testify, Walsh offered to stipulate that the other Town Council members who voted on the position elimination proposal were free of any discriminatory animus at the time.Walsh's stipulation offer was not accepted by the court, and two other Town Council members testified.No evidence was presented indicating that any Town Councilor, other than Polstein, held any discriminatory animus toward Walsh for her engaging in the protected conduct of reporting her concerns about the condition of the Town snowmobile trails to the Department of Conservation.

[¶ 15] After the conclusion of the evidence and closing arguments, the court instructed the jury.On the liability issue the court advised the jury that Walsh had to prove that three elements of her discrimination claim against the Town were established to the preponderance of the evidence, a more likely than not, standard of proof.For the first element, the court advised the jury that Walsh had to prove that she engaged in conduct that was protected by the WPA.For the second element, the court advised the jury that Walsh had to prove that the Town subjected her to an adverse employment action.While issues regarding these elements were contested at trial, no issue is raised on appeal contesting the jury's findings regarding these first two elements.Thus, the propriety of the court's instructions and the jury's findings on these points is assumed for purposes of this appeal.

[¶ 16] Causation was the principal issue at trial and is the principal issue on appeal.On the causation question, the court instructed the jury that Walsh had to prove “a causal connection between her protected conduct and the adverse employment action that she suffered.”Describing the question for the jury further, the court advised: “There is a causal connection if Ms. Walsh's protected conduct was a substantial, even though perhaps not the only, factor motivating Ms....