Vargas v. Riverbend Management, LLC

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO. CV-21-439

TIFFANY VARGAS, and
ERIKA ACEVEDO,
Plaintiffs,
ORDER
V.

RIVERBEND MANAGEMENT, LLC,
Defendant

Before the court is Plaintiffs' motion for bench trial, which Riverbend opposes. For the

following reasons, the court grants Plaintiffs' motion.

Discussion

Plaintiffs initially requested a jury trial in this case and that request was granted by the

court. Plaintiffs now ask that the court hold a bench trial. They explain that they had assumed

that their claim carried a jury right and have since discovered that it does not. Riverbend opposes

the instant motion. It argues that the motion is untimely, the parties have consented to a jury trial,

and it is entitled to a jury trial because Plaintiffs seek only legal relief.

Maine Rule of Civil Procedure 38 allows plaintiffs to make jury trial demands and

prevents plaintiffs from later withdrawing their demands without the consent of all parties.

However, Rule 39 allows that "[w]hen a trial by jury has been demanded as provided in Rule

38 ... the trial of all issues so demanded shall be by jury, unless ... (2) the court upon motion or of

its own initiative finds that a right of trial by jury of some or all of those issues does not exist

under the Constitution or statutes of the State of Maine."

Here, the court finds that Plaintiffs' claim does not carry a right of trial by jmy. The Law

I
Comi on several occasions has stated that actions under the Maine Human Rights Act

("MHRA") do not carry a jury trial right. Me. Hum. Rts. Comm 'n v. Auburn, 408 A.2d 1253,

1261 (Me. 1979) ("An action arising under the Human Rights Act is equitable in nature, and any

relief thereunder is granted only through the exercise of the sound discretion of the Superior

Comi justice."); Me. Hum. Rts. Comm 'n v. Auburn, 425 A.2d 990, 995 (Me. 1981) (same);

Rozanski v. A-P-A Transport, Inc., 512 A.2d 335,342 n.l (Me. 1986) (reaffinning the ruling in

Me. Hum. Rts. Comm 'n, 408 A.2d 1253); DiCentes v. Michaud, 1998 ME 227, ,i,i 8-10, 719 A.2d

509 (reexamining the rule that MHRA claims do not give rise to a jury trial right in light of

differing federal precedent and declining to stray from prior rulings).'

Riverbend's attempt to distinguish DiCentes based on the various remedies sought does

not persuade the court. The DiCentes decision stated,

Although the Act authorizes both legal and equitable relief, see 5 M.R.S.A. §
4613(2)(B), it explicitly provides the court with broad equitable authority to hear
claims, determine liability, and award relief. See Maine Human Rights Comm 'n,
408 A.2d at 1261 n.11. Accordingly, here, where the cause of action itself sounds
in equity, the nature of the relief sought is not dispositive on the question of
availability of jury trial.

1998 ME 227, ,i 10, 719 A.2d 509. In addition, the Court, id. ,i 9, explicitly declined to follow

Abbott v. Bragdon, which held that a plaintifrs "claim under the MHRA, for the imposition of

civil penalties, (wa ]s legal in nature" and therefore carried a jury trial right. 882 F. Supp. 181,

183 (D. Me. 1995).

Riverbend also argues that the court should not consider the merits of Plaintiffs' motion

because the parties had already consented to a jury trial and Riverbend would be unfairly

'Plaintiffs cite lo 5 M.R.S. § 4613(2)(8)(8)(g) (1998), a provision oflhe MHRA that specifies that a jury can be
demanded by either party in cases of intentional employment discrimination by employers with more than foutteen
employees. The MHRA docs not mention such a right with respect to public acconunodations or other MHRA
claims. The court concludes that this provision does not affect the applicability of DiCentes and like precedent to the
case at bar.

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prejudiced if the court granted the motion. The court first notes that Rule 39(a) gives the court

authority to conve1i a jury trial to a bench trial upon motion or by its own initiative. In this case,

while Plaintiffs may have initially requested a jury trial, it is clear that they no longer consent to

a jmy trial. Moreover, Riverbend has not shown prejudice. While the court appreciates that time

and resources have been lost in preparing for a jmy trial, that fact alone does not indicate that

Riverbend will be prejudiced by the shift to a bench trial.

The entty is:

Plaintiffs' Motion for Bench Trial is GRANTED.

The clerk shall enter this order on the docket by reference. M.R. Civ. P. 79(a).

/11' ··;v,'.(,..
Signed:
~--'-'
· /'
-------------~

Thomas R. McKean
Justice, Maine Superior Court

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STATE OF MAINE SUPERJOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO. CV-21-439

TIFFANY VARGAS, and
ERJKA ACEVEDO,
Plaintiffs,
COMBINED ORDER ON
V. PENDING MOTIONS

RJVERBEND MANAGEMENT, LLC,
Defendants

Before the court are Defendant's Motion to Amend Answer and Affirmative Defenses to

Plaintiffs Complaint and Defendant's Motion for Summary Judgment on all counts in Plaintiffs'

Complaint.

ill Motion to Amend
Defendant requests leave of the court to amend its answer to include an additional

affirmative defense. Specifically, Defendant states that Plaintiffs have suggested that it has

waived the statutory damages cap by not asserting it as an affirmative defense. Defendant

requests leave to add this defense to its answer, despite disagreeing with Plaintiffs' asse1tion on a

legal basis. Plaintiffs oppose the motion, arguing that it has been delayed, and pending any

dispositive motions, the case is otherwise ready for trial.

Plaintiffs point to Bell v. 0 'Reilly Auto Enterprises, which held that the defendant must

have raised the statutory damage cap in its answer to avoid waiver. No. I: I 6-cv-00501-JDL,

2022 U.S. Dist. LEXIS 45802, at *4-8 (D. Me. Mar. 15, 2022) (citing Knapp Shoes, Inc. v.

Sylvania Shoe Mfg. Co., 15 F.3d 1222, 1226 (1st Cir. 1994)). The Bell decision relied on the First

Circuit's holding in Knapp Shoes that "a statutory provision limiting damages to a fixed sum

constitute[s] an affirmative defense for purposes of [Fed. R. Civ. P.] 8(c)." 15 F.3d at 1226.

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Plaintiffs argue that because Defendant's counsel is employed by the same firm that represented

O'Reilly Auto in Bell, Defendant should be charged with constructive knowledge of the ruling,

which was issued eight months before the deadline to amend pleadings.

The standard for granting leave to amend the answer comes from M.R. Civ. P. 15,

governing amended pleadings. 1 Rule 15 instructs the court to grant leave "freely ... when justice

so requires." The cases cited by Plaintiffs apply to the Federal Rules of Civil Procedure, whereas

the case at bar is governed by the Maine Rules. There is a colorable argument that Maine courts

would not apply the holding in Bell under the Maine Rules. The court concludes that Defendant's

delay in requesting this amendment was neither undue, caused by a lack of diligence, nor caused

by bad faith. Paul v. Town ofLiberty, 2016 ME 173, ,r 9, 151 A.3d 924 (citing Montgomery v.

Eaton Peabody, LLP, 2016 ME 44, ,r 13, 135 A.3d 106). The amendment does not prejudice the

Plaintiffs. The court concludes that justice requires that Defendant is allowed to amend its

pleadings to avoid an unintentional waiver of the statutory cap. The court grants the motion to

amend.

ill Motion for Summary Judgment
Background

The following facts, undisputed unless otherwise noted, appear in the summary judgment

record.

Defendant Riverbend Management, LLC ("Riverbend") operated the McDonald's

restaurant franchise at 1208 Forest Avenue in Portland, Maine. Supp.'g S.M.F. ("SMF") ,r 1.

Plaintiff Tiffany Vargas is an individual of African~American, Portuguese, and Native American

1 The court disagrees with Plaintiffs that Rule I6(a)(2) governs this motion for leave. Defendant is not asking the

court to amend deadlines in the scheduling order but is asking for leave to make a single particular amendment to its
answer.

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heritage, and Plaintiff Erika Acevedo is a Dominican-born Latina. ,r,r 2-3. Scott Lydick is owner

and sole member of Riverbend, which took over the McDonald's franchise on Forest Avenue in

2011. ,r,r 4, 6, 8. Lydick owns and operates a single McDonald's, which is Riverbend's only

asset. ,r,r 7, 9. The McDonald's location employs 37 people, who as employees review

Riverbend's zero-tolerance policy for discrimination and harassment in the workplace. ,r,r 10, 13.

Andrew Mosely was a crew member at the Forest Avenue McDonald's and was a

manager-in-training. ,r,r 19-20. As of August 16, 2020, he had been employed by Riverbend for

19 months and had worked beside Lydick during that time. ,r,r 22-3. Mosely would staff the

drive-thru, including taking and delivering customers' orders. ,r 21. Prior to August 16, 2020,

Riverbend had not received a complaint about Mosely's behavior from a customer or coworker

and had no reason to question Mosely's character. ,r,r 25-6.

Plaintiffs Vargas and Acevedo visited the McDonald's and purchased an iced coffee from

the drive-thru window on August 16, 2020. In her many visits to the McDonald's Vargas had

never been mistreated before. ,r,r 30-1. At the pick-up window, Mosely handed Vargas, in the

driver's seat, the iced coffee she had ordered. ,r,r 28, 34. She asked for a separate cup of ice, and

Mosely refused, stating she would have to get back in line because he could not take the other

drinks "out of rotation." ,r,r 35-7. Vargas asked for Mosely's name, and he replied "Bubba" and

walked away from the pick-up window. ,r,r 38-9. Within seconds, a second employee,

Mohammed Muhee came to the window, gave Vargas a cup of ice, and told her that Mosely's

name was "Andrew." ,r 40. Vargas then pulled away from the window and stopped the car. ,r 43.

Mosely was outside delivering another order, and as he went back into the restaurant Vargas said

to him, "Have a great day, Andrew." ,r,r 42, 44. Mosely responded by yelling profanities at

Plaintiffs, which Plaintiffs claim included a racial slur. ,r,r 45-6; Opp. S.M.F. ("OSMF") ,r,r 45-6

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(qualifying the statements by specifying that Mosely yelled "Fuck you, niggers!"). Mosely went

back into the restaurant and Vargas drove away. SMF ,r 47. Vargas grew up with the

understanding that a Caucasian's use of the word Bubba in relation to racial minorities refers to a

slave master. OSMF ,r 4.

Vargas spoke with a McDonald's corporate representative the following day and was

informed that someone would reach out to her regarding her experience. SMF ,r,r 48-9. Lydick

learned of the occurrence on August 18, 2020 and forwarded the email to the general manager at

his location. ,r,r 50, 52. The same day, Lydick emailed Vargas and left her a voicemail, and he

terminated Mosely's employment. ,r,r 56-8, 60. 2

On February 9, 2021 both Vargas and Acevedo filed complaints with the Maine Human

Rights Commission, alleging discrimination based on race and national origin. SMF ,i,r 62-3.

Discussion

1. Vicarious liability for race discrimination.

The parties dispute whether Riverbend is vicariously liable for the conduct of its

employee who allegedly committed the discrimination~ Andrew Mosely. Specifically, it

disputes whether the public accommodations sections of the Maine Human Rights Act

("MHRA") should be read to assign liability to the public accommodation itself or instead to a

discriminating employee. 3

In the context of public accommodation discrimination, it is unlawful

[f]or any public accommodation or any person who is the owner, lessor, lessee,
proprietor, operator, manager, superintendent, agent or employee of any place of
public accommodation to ... discriminate against ... any person, on account of

2 The court agrees with Plaintiffs that some of Defendant's statements of fact regarding the contents ofan
investigation rely on inadmissible hearsay, and to the extent they are not evidence of the type that would be
admissible at trial, the court omits them from the record.
3 Despite Plaintiffs' arguments, Fuhrmann v. Staples the Off. Superstore E., 2012 ME 135, 58 A.3d 1083, does not

govern the case at hand.

4
race or color, sex, sexual orientation or gender identity, age, physical or mental
disability, religion, ancestry or national origin ....

5 M.R.S. 4592(1). A person having experienced discrimination under the MHRA "may file a

civil action in the Superior Court against the person or persons who committed the unlawful

discrimination." 5 M.R.S. § 4621. 4

Plaintiffs argue that respondeat superior liability exists under the public accommodation

statutes. Defendant argues that the "person who committed the unlawful discrimination" was the

employee and not the owner of the business. See§ 4621. The comi concludes based on the plain

meaning of the MHRA that a public accommodation may be liable for the actions of its

employees.

First, the court does not read the above statutes to abrogate the common law principles of

agency, which comis presume remain intact unless clearly derogated. Wilmington Sav. Fund

Soc y v. Needham, 2019 ME 42, ,r 16, 204 A.3d 1277; see Restatement (Third) of Agency§ 7.03.

Nothing in section 4592(1) indicates vicarious liability does not apply. Second, the statutory

scheme clearly contemplates vicarious liability of employers. For example, section 4553(1 O)(E)

states that in "determining whether a person is acting as an agent or employee of another person

so as to make such other person responsible for that person's acts, the question of whether.the

specific acts performed were actually authorized or subsequently ratified is not controlling."

(emphasis added). Section 4553(4) defines "employer" as including "any person acting in the

interest of any employer, directly or indirectly, such that the person's actions are considered the

4 '"Person' includes one or more individuals, partnerships, associations, organizations, corporations, municipal
corporations, legal representatives, trustees, trustees in bankruptcy, receivers and other legal representatives, labor
organizations, mutual companies, joint-stock companies and unincorporated organizations and includes the State
and all agencies thereof." 5 M.R.S. § 4553(7).

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actions of the employer for purposes of liability." These provisions in the definitions section

apply to the whole MHRA.

Defendant also argues that because Mosely' s discriminatory act was an intentional act,

Riverbend should not be liable. The court could locate no law in Maine that states that vicarious

liability does not extend to intentional discriminatory acts. Further, the MHRA expressly directs

courts not to consider whether an employee's acts were "actually authorized or subsequently

ratified" when it considers whether a person is acting as an agent, creating vicarious liability. C.f

Restatement (Third) of Agency § 7.03 (imposing liability where an agent acts with actual

authority or a principal ratifies the agent's conduct). This language suggests that even acts

outside the scope of employment may create employer liability. The court cannot conclude that

operators of public accommodations are not liable for the actions of their employees as a matter

of law. Therefore, the court denies the motion for summary judgment to the extent the claim is

based on racial discrimination.

2. Gender discrimination.

Riverbend also argues that Plaintiffs are not entitled to a remedy for gender

discrimination claims because they have not exhausted remedies with the Maine Human Rights

Commission ("MHRC"). Although Plaintiffs did file a complaint with the MHRC based on the

incident of alleged racial discrimination, Plaintiffs did not assert a claim based on gender

discrimination. Pursuant to the MHRC:

Attorney's fees under section 4614 and civil penal damages or compensatory damages
and punitive damages under section 4613 may not be awarded to a plaintiff in a civil
action under this Act unless the plaintiff alleges and establishes that, prior to the filing of
the civil action, the plaintiff first filed a complaint with the commission ...

5 M.R.S. § 4622.

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The court could find no law on whether a plaintiff, after satisfying the requirement of

filing before the MHRC on one form of discrimination, can expand the subsequent civil action to

include a different form of discrimination, and recover civil penal damages, actual damages, or

attorneys fees even though they failed to assert that theory before the MHRC. While there may

be an argument to that effect, the Plaintiffs did not make it in their response to summary

judgment. See York Cnty. v. Propertylnfo Corp., 2019 ME 12, 113 n.4, 200 A.3d 803.

There was no reason for the Defendant to create a factual record on whether sex

discrimination occurred because that was not the basis of its motion for summary judgment.

The only fact at issue was whether the claim was asserted before the MHRC and that was

admitted.

Therefore, the court concludes that section 4522 precludes any recovery for civil or

compensatory damages for gender or sex discrimination. Because no other relief for gender

discrimination is requested in the complaint, 5 the court dismisses any claim for gender

discrimination as moot. See Gordon v. Cummings, 2000 ME 68, 11 11 ~ 12, 756 A.2d 942, 944-

45 (although Section 4622 precludes only the recovery of damages but not the civil action itself,

the action becomes moot because a decision on the merits would not afford the plaintiff any real

or practical relief).

The court grants summary judgment to the extent Plaintiffs assert a claim based on

gender or sex discrimination.

The entry is

Defendant's Motion to Amend its Answer is GRANTED.
Defendant's Motion for Summary Judgment is GRANTED IN PART and DENIED IN
PART. Summary judgment on Plaintiffs' claim based on race is DENIED, but summary
judgment on Plaintiffs' claim based on gender is GRANTED.

5 The Plaintiffs do not allege gender discrimination at all. Because the Defendant raised the issue, the court
rules on the motion as though they did.

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The clerk is directed to incorporate this Order on the docket by reference. M.R. Civ. P. 79(a).

''J/L,! ! L 3
Date Thomas R. McKean
Justice, Maine Superior Court

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