Crabtree v. Central Maine Medical Center

STATE OF MAINE SUPERIOR COURT
ANDROSCOGGIN, ss. CIVIL ACTION
DOCKET NO. CV-19-10

AUG 30 '21 PH2: lll
HELEN CRABTREE,
ANDRO SUPERIOR COUR
Plaintiff

V. ORDER ON OUTSTANDING
MOTIONS
CENTRAL MAINE MEDICAL
CENTER,

Defendant

There are two pending motions before the court. One is Defendant Central Maine

Medical Center's ("CMMC") dual motion to enforce a settlement agreement and motion for

summary judgment. The other is Plaintiff Helen Crabtree's motion for partial summary

judgment. For the following reasons, both motions will be denied.

Factual Background

Ms. Crabtree is a Seventh Day Adventist. (Pl.'s Add. S.M.F. ,r 1.) On August 19, 2015,

Ms. Crabtree applied for a Certified Nursing Assistant ("CNA'') trainee position with CMMC in

connection with Central Maine Healthcare Corporation's ("CMH") "Earn While You Learn"

("EWYL") program. (Def. 's Supp.'g S.M.F. if 1; PL 's Add. S.M.F. if 25.) The EWYL program

is an arrangement whereby CMH would pay tuition and fees for the Maine College of Health

Professionals ("MCHP") CNA training course and would compensate CNA trainees $10.20 per

hour while they worked part-time at CMMC. (Id ,r 6.) Successful applicants to MCHP could

apply to participate in the EWYL program. (Id ,r 18.)

Ms. Crabtree had two interviews with CMMC after applying to the EWYL program. (Id

,r 26.) At some point during these interviews, Ms. Crabtree informed CMMC that, as a Seventh

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Day Adventist, she observes the Sabbath from sundown Friday to sundown Saturday and would

not be available to work during that period. (Def.'s Supp.'g S.M.F. ~ 9.) CMMC has a weekend

schedule protocol that requires CNAs to work a Saturday and Sunday shift every third weekend.

(Id.~ 10.)

One of Ms. Crabtree's points of contact with CMMC during the interview process was

Tricia Raymond, nurse manager of CMMC' s Med/Surg Tl unit. (Id. ~ 7.) Once Ms. Raymond

became aware of Ms. Crabtree's religious conflict with Saturday shifts, she spoke with one of

her unit's coordinators to determine whether they could avoid scheduling Ms. Crabtree for

Saturday shifts. (Id. ~ 11.) Ms. Raymond proposed the following accommodation: Ms. Crabtree

would not be scheduled for any shifts that conflicted with the Sabbath until the following Spring,

at which point, due to a higher need for CNAs, Ms. Crabtree would have to use the hospital's

voluntary shift swap procedure to avoid working any Saturday shifts she was assigned. (Id. ~ 12.)

Ms. Raymond was under the impression that Ms. Crabtree wished to proceed with a CNA trainee

position after their conversation, and recommended that human resources make Ms. Crabtree an

offer. (Id. ~ 14; Pl. 's Add. S.M.F. ~ 31.)

On September 15, 2015, Ms. Dingley, as a representative of CMMC's Human Resources

Department, contacted Ms. Crabtree via telephone to make her an offer. (Def.'s Supp.'g S.M.F. ~

15.) The parties dispute what was said during this call, but they agree that the issue of weekend

scheduling came up. (Id. ~~ 15-17; Pl. 's Add. S.M.F. ~~ 33-41.) Ms. Crabtree avers that Ms.

Dingley informed her, for the first time, that she would be responsible to find someone to work

her shift if she was scheduled to work on a Saturday. (Id. ~~ 35-36.) Ms. Crabtree also avers that

she told Ms. Dingley that she could not ask another person to work on Saturday because she was

unqualified to take on that responsibility and because doing so would violate her religious

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convictions. (Id. '\l 38.) CMMC denies that Ms. Crabtree stated that she had a religious objection

to asking a coworker to cover her Saturday shifts during her call with Ms. Dingley. (Def. 's Opp.

to Pl.'s Add. S.M.F. '\l 38.)

Ms. Dingley suggested that Ms. Crabtree discuss the shift swapping issue with Ms.

Raymond to address her concerns. (Def.'s Supp.'g S.M.F. '\l 17.) Ms. Crabtree declined to do so.

(Id. '\l 18.) Ms. Crabtree avers that she declined to have a second conversation with Ms. Raymond

because she believed that nothing she could say to Ms. Raymond would change matters. (Pl.' s

Add. S.M.F. '\l 41.) Ms. Dingley called Ms. Crabtree back after conferring with a nurse manager

and advised Ms. Crabtree that CMMC would be rescinding the offer of employment. (Pl.'s Add.

S.M.F. '\l 46.; Def.'s Opp. to Pl.'s Add. S.M.F. '\l 46.) Ms. Crabtree asked Ms. Dingley to rescind

the offer in writing, whereupon Ms. Dingley sent Ms. Crabtree an email stating that the offer was

rescinded because Ms. Crabtree was not able to commit to the scheduling requirements of the

position. (Pl.'s Add. S.M.F. '\l 47.)

Ms. Crabtree filed a complaint with the Maine Human Rights Commission ("MHRC")

alleging religious discrimination against CMMC. This complaint ended in a conciliation

agreement signed by Ms. Crabtree, CMMC and the MHRC. (Def.'s Ex. 14.) The conciliation

agreement states that Ms. Crabtree and CMMC have reached a private settlement agreement. 1

Ms. Crabtree and CMMC also signed a handwritten "Conciliation Term Sheet," which

enumerated certain obligations of the parties:

1 CMMC's statement of material facts includes the following statement:

"The Conciliation Agreement states that the parties had reached a private settlement agreement and that the
agreement becomes effective upon signing by all parties." (Def. 's Supp. 'g S.M.F. 'if 77.)

This statement is supported insofar as it means that the conciliation agreement itself becomes effective upon signing
by all parties. (Def.'s Ex. 14, at *4.) The conciliation agreement does not contain any express tenns which state that
the private settlement agreement between Ms. Crabtree and CMMC becomes effective upon signing of the
Conciliation Agreement. (Def.'s Ex. 14.)

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1. [CMMCJ agrees to pay [Ms. Crabtree] [redacted]. [Ms. Crabtree J's attorney
to communicate allocation to [CMMC]'s attorney.

2. [CMMCJ agrees to issue letter of apology, drafted by Atty. Messerschmidt
and Atty. McFarland, as agreed upon.

3. Both payment and letter are part of a confidential private agreement.

4. Agreements will be listed on [MHRCJ agenda of 10/22/18 and check(s) will
be mailed to [Ms. Crabtree] following [MHRC]'s approval

(Def.'s Ex. 15.) No other agreements between Ms. Crabtree and CMMC are part of the record on

this summary judgment motion.

Procedural Background

Ms. Crabtree filed a complaint alleging employment discrimination in Superior Court on

January 18, 2019. Following some discovery, CMMC filed a dual motion to enforce the

settlement agreement and motion for summary judgment on November 16, 2020. Ms. Crabtree

filed an objection to CMMC's motion on December 21, 2020. CMMC replied to this objection

on January 19, 2021.

Ms. Crabtree also filed a motion for partial summary judgment on November 16, 2020.

C:MMC filed an opposition to the motion on December 21, 2020. Ms. Crabtree filed her reply on

January 19, 2021. 2

2
CMMC filed responses to Ms. Crabtree's denials and qualifications of CMMC's statements of material fact on
both motions. CMMC cites M.R. Civ. P. 56(h)(3) as the basis for responding to Ms. Crabtree's denials and
qualifications ofCMMC's statements of material fact on its own summary judgment motion and cites M.R. Civ. P.
56(i)(2) as the basis for its filing similar responses to Ms. Crabtree's denials and qualifications of CMMC's
additional statements of material fact in opposition to Ms. Crabtree's motion for partial summary judgment. Rule
56(h)(3) allows a party moving for summary judgment to respond to the opposing party's additional statements of
material fact with admissions, denials or qualifications. Rule 56(i)(2) grants parties the right to file responses to any
objection an opposing party makes with respect to factual assertions. Neither filing is supported by the rules, so the
court will disregard them.

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Standard

Summary judgment is granted to a moving party where "there is no genuine issue as to

any material fact" and the moving party "is entitled to judgment as a matter oflaw." M.R. Civ. P.

56( c). "A material fact is one that can affect the outcome of the case, and there is a genuine issue

when there is sufficient evidence for a fact-finder to choose between competing versions of the

fact." Lougee Conservancy v. City Mortgage, Inc., 2012 ME 103, ,r 11, 48 A.3d 774 (quotation

omitted).

"Facts 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). In order to controvert an opposing party's factual statement, a party must

"support each denial or qualification by a record citation." M.R. Civ. P. 56(h)(2). "Assertion of

material facts must be supported by record references to evidence that is of a quality that would

be admissible at trial." HSBC Mortg. Servs. v. Murphy, 2011 ME 59, ,r 9, 19 A.3d 815.

Decisions by the federal co mis construing provisions of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000e et seq., provide significant guidance to Maine Courts in the

construction of the Maine Human Rights Act ("Maine Act"), 5 M.R.S. §§ 4551 et. seq. Maine

Human Rights Comm 'n v. United Paperworkers Int'/ Union, 383 A.2d 369,375 (Me. 1978).

MHRC interpretations of the Maine Act are entitled to great deference. Id. at 378.

Discussion

The court must address the following issues:

1.) is there an enforceable settlement agreement discharging Ms. Crabtree's claims against
CMMC?

2.) is there a question of material fact as to whether CMMC offered Ms. Crabtree a
reasonable accommodation?

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3.) is there a question of material fact as to whether reasonable accommodation is possible
without undue hardship?

4.) is there a question of material fact as to whether punitive damages are available?

5.) is there a question of material fact as to whether substantially equivalent alternative
positions were available to Ms. Crabtree?

Settlement Agreement

CMMC argues that the conciliation agreement and terms sheet Ms. Crabtree signed

effected a binding release of all claims related to Ms. Crabtree's religious discrimination

allegations. Ms. Crabtree argues that the issue is not properly raised because CMMC failed to

file a counterclaim seeking to enforce the settlement. Ms. Crabtree also argues that CMMC has

failed to establish the existence of a settlement agreement.

"Settlement agreements are analyzed as contracts, and the existence of a binding

settlement agreement is a question of fact." Brochu v. McLeod, 2016 ME 146,136, 148 A.3d

1220. If a contract is unambiguous its interpretation is a matter of law and the court interprets it

according to plain meaning of the language used. Camden Nat'/ Bank v. S.S. Navigation Co.,

2010 ME 29, 1 16, 991 A.2d 800. A contract is ambiguous if it is reasonably susceptible to

different interpretations. Id

Neither the term sheet nor the conciliation agreement state that Ms. Crabtree has agreed

to release her claims against CMMC. Neither document contains an express term stating that Ms.

Crabtree agreed to release her claims in exchange for consideration. The term sheet states that

the payment and letter referred to therein are "part of a confidential private agreement," but it

does not state that this agreement would contain a promise from Ms. Crabtree to release all of her

claims against CMMC. (Def.'s Ex. 15.) The conciliation agreement also refers to a private

settlement agreement between Ms. Crabtree and CMMC, but that agreement, if it exists, is not in

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the record. (Def. 's Ex. 14, at* 2.) To the extent that CMMC is inviting the court to read an

implied release of all claims into the provisions of the terms sheet and conciliation agreement

themselves, the court declines.

It is irrelevant whether the purported settlement agreement is enforceable or properly

raised. There is nothing in the record to suggest that Ms. Crabtree agreed to release her claims

against CMMC, so the motion to enforce the settlement agreement must be denied.

Reasonable Accommodation

To establish a prima facie case on a claim for religious discrimination, Ms. Crabtree must

show:

(1) a bona fide religious practice conflicts with an employment requirement;

(2) she brought the practice to CMMC's attention; and

(3) that the religious practice was the basis for an adverse employment action.

Sanchez-Rodriguez v. AT&T Mobility Puerto Rico, Inc., 673 F.3d 1, 8 (1st Cir. 2012). If Ms.

Crabtree establishes a prima facie case of religious discrimination, CMMC must show that it

offered a reasonable accommodation or that a reasonable accommodation would be an undue

burden. Id. CMMC concedes for the purposes of its summary judgment motion that there is an

issue of material fact as to whether Ms. Crabtree can establish a prima facie case of religious

discrimination. (Def.'s Mot. Summ. J. 8, n.3.)

A reasonable accommodation means simply that the employer makes an exception to

allow the plaintiff to engage in her religious practice despite the employer's normal rules to the

contrary. EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2032 n.2 (2015). "[A]ny

reasonable accommodation by the employer is sufficient to meet its accommodation obligation."3

3
11HRC regulations provide that "when there is more than one m·eans of accommodation which would not cause
undue hardship, the employer must offer the alternative which least disadvantages the individual with respect to his

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Ansonia Bd ofEduc. v. Philbrook, 479 U.S. 60, 68 (1986). "[C]ases involving reasonable

accommodation tum heavily upon their facts and an appraisal of the reasonableness of the

parties' behavior." Rocafort v. IBM Corp., 334 F.3d 115, 120 (1st Cir. 2003). When analyzing

whether an employer offered a reasonable accommodation, a court should take the totality of the

circumstances into account and consider whether the combination of accommodations offered by

the employer was reasonable. Sanchez-Rodriguez, 673 F.3d at 12.

The accommodation offered in this case is not in dispute. CMMC offered to avoid

scheduling Ms. Crabtree for Saturday shifts until the following Spring, at which point she would

have to use CMMC's shift swap procedure to find a co-worker willing to substitute for her on

Saturdays she was scheduled to work. Ms. Crabtree avers that she told CMMC that she has a

religious objection to soliciting a co-worker to replace her. CMMC does not dispute the

authenticity of this religious belief for the purpose of this summary judgment motion, but denies

that Ms. Crabtree told CMMC that she had this belief during the hiring process. (Def.' s Opp. to

Pl.'s Add. S.M.F. ,r 38.) As such, there is an issue of material fact as to whether CMMC's

proposed accommodation was reasonable in light of Ms. Crabtree' s stated religious objection to

soliciting others to work on Saturdays.

CMMC argues that even if Ms. Crabtree had informed CMMC of a religious objection to

finding her own replacement, the accommodation it offered was still reasonable. CMMC argues

that Ms. Crabtree would have had sufficient time to get to know her co-workers and figure out

how to arrange coverage of her prospective Saturday shifts without violating her religious

beliefs. It is unclear how additional time would help Ms. Crabtree to arrange coverage for herself

in a manner that did not constitute soliciting others to work on the Sabbath, and therefore violate

or her employment orunion opportunities." 94-348 C.M.R. ch. 3, § 14(2)(B)(2)(b) (2014). This issue has not been
raised, as Ms. Crabtree is arguing that no reasonable accommodation was offered.

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her religious beliefs. However, even assuming Ms. Crabtree could hypothetically avail herself of

CMMC's shift-swapping procedure without violating her religious beliefs, this hypothetical

possibility still leaves an issue of material fact as to whether she could have done so in this case.

There is an issue of material fact as to whether CMMC offered an accommodation that

would allow Ms. Crabtree to continue "to engage in her religious practice despite the employer's

normal rules to the contrary." Abercrombie & Fitch, 135 S. Ct. at 2032 n.2. The fact that Ms.

Crabtree had time before she would need to avail herself of CMMC's shift-swapping procedure

does not entitle CMMC to judgment as a matter of law. See Tabura v. Kellogg USA, 880 F .3d

544, 550 (10th Cir. 2018) (an accommodation is not reasonable if it only provides an opportunity

to delay termination). The court's analysis of reasonable accommodation could, in theory, stop

here. However, the court will briefly discuss the reasonableness of CMMC's shift-swapping

procedure as an accommodation for Ms. Crabtree's religious conflict with working Saturday

shifts.

The MHRC has promulgated regulations interpreting whether a voluntary swap is a

reasonable accommodation for an employee's religious conflict with their work schedule.

According to the MHRC:

Reasonable accommodation without undue hardship is generally possible where a
voluntary substitute with substantially similar qualifications is available. One
means of substitution is the voluntary swap. In a number of cases, the securing of
a substitute has been left entirely up to the individual seeking the accommodation.
The Commission believes that the obligation to accommodate requires that
employers facilitate the securing of a voluntary substitute with substantially
similar qualifications. Some means of doing this that employers should consider
are: to publicize policies regarding accommodation and voluntary substitution; to
promote an atmosphere in which such substitutions are favorably regarded; to
provide a central file, bulletin board or other means for matching voluntary
substitutes with positions for which substitutes are needed.

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94-348 C.M.R. ch. 3, § 14(2)(C)(l)(a) (2014). CMMC avers that it promoted and encouraged use

of its existing shift-swapping procedure. (Def.'s S.M.F. 132.) Ms. Crabtree avers that CMMC

placed all responsibility for finding a replacement for any Saturday shifts with her. (Pl.'s Add.

S.M.F. 145.)

The court cannot conclude on this record that CMMC offered Ms. Crabtree a reasonable

accommodation as a matter of law. The degree to which CMMC facilitated shift-swapping, and

whether that procedure would have been sufficient to allow Ms. Crabtree to work without

violating her religious convictions, are determinations properly left to the factfinder. See Tabura,

880 F.3d at 554 ("[U]ltimately the question of whether an accommodation is reasonable must be

made on a case-by-case basis, grounded on the specific facts presented by a particular

situation.") There remain issues of material fact as to whether CMMC offered Ms. Crabtree a

reasonable accommodation.

Undue Hardship

An employer is only obligated to make reasonable accommodations for its employees'

religious practices if doing so would not constitute an undue hardship. United Paperworkers Int'/

Union, 383 A.2d at 376; see also 94-348 C.M.R. ch. 3, § 14(2)(A). "An accommodation

constitutes an undue hardship if it would impose more than a de minimis cost on the employer."

Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 134 (1st Cir. 2004) (quotations omitted).

These costs can be economic, "such as lost business or having to hire additional employees to

accommodate a Sabbath observer," or non-economic, "such as compromising the integrity of a

seniority system." Id. The MHRC, for its part, interprets undue hardship in the following

manner:

The Commission will determine what constitutes "more than a de minimis cost"
with due regard given to the identifiable cost in relation to the size and operating

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cost of the employer, and the number of individuals who will in fact need a
particular accommodation. In general, the Commission interprets this phrase ...
to mean that costs similar to the regular payment of premium wages of substitutes
... would constitute undue hardship. However, the Commission will presume that
the infrequent payment of premium wages for a substitute or the payment of
premium wages while a more permanent accommodation is being sought are costs
which an employer can be required to bear as a means of providing a reasonable
accommodation. Further, the Commission will presume that generally, the
payment of administrative costs necessary for providing the accommodation will
not constitute more than a de minimis cost.

94-348 C.M.R. ch. 3, § 14(2)(D)(l). The MHRC will also find undue hardship when

accommodating an employee's religious practices would require the employer to deny another

employee his or her job or shift preference guaranteed by a bona fide seniority system. 94-348

C.M.R. ch. 3, § 14(2)(D)(2); see also TWA v. Hardison, 432 U.S. 63, 80 (1977).

CMMC points to Sanchez-Rodriguez v. AT&T Wireless, 728 F.Supp. 2d 31 (D.P.R.

2010), in which the U.S. District Court for the District of Puerto Rico applied the case law

stemming from Supreme Court's decision in Hardison to scheduling systems more generally.

The District Court held that the cases suggested that "compromising a scheduling system that is

meant to accommodate the shift preferences of employees would clear the de minimis threshold

and constitute an undue hardship."4 Id. at 43. In another case from the District of Puerto Rico,

the District Court held that an employer "would suffer undue hardship if it were required to

change its scheduling system because of the difficulty of finding a replacement employee of

comparable skill, experience, and qualifications; because other employees would be required to

work more often during the weekend; and because [the employerJ would incur substantial

payroll expenses to give [the employee] all Sundays off." Rojas v. GMD Airlines Services, 254

F. Supp. 3d 281, 297-98 (D.P.R. 2015).

4
CMMC erroneously cites this case as a First Circuit case. (See Def 's Mot. Summ. J. 14.) The First Circuit did not
reach the issue of undue hardship on appeal. See Sanchez-Rodriguez, 673 F.3d at 12-13.

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CMMC argues that any accommodation that would have allowed Ms. Crabtree to avoid

working Saturday shifts would have compromised its scheduling system. CMMC argues that it

could not avoid scheduling Ms. Crabtree for Saturday shifts because "other employees may be

required to work two Saturday shifts in a three-week period as opposed to completing the

weekend shift requirement over one weekend." (Def.'s Mot. Summ. J. 17.) CMMC argues that

this would not be a popular option for CNAs who prefer to have their weekends off and would be

equally unpopular with CNAs that prefer weekend shifts because they might be removed from

weekend shifts to accommodate Ms. Crabtree. CMMC argues that this would impact morale

among Ms. Crabtree's co-workers.

There is no evidence in the record that CMMC's scheduling system is meant to

accommodate the shift preferences of employees. See Sanchez-Rodriguez, 728 F.Supp. 2d at 43.

CNA is an entry level position; there is no indication from the record that it would be difficult to

find an employee to replace Ms. Crabtree for Saturday shifts. See Rojas, 254 F. Supp. 3d at 298.

CMMC has not demonstrated that it would incur significant payroll expenses by scheduling Ms.

Crabtree for two S1mday shifts on different weeks as opposed to consecutive Saturday and

Sunday shifts on a single weekend. See Id. CMMC's primary argument is that accommodating

Ms. Crabtree would be unpopular with other employees and would therefore damage morale. It

is questionable that a decrease in employee morale resulting from an accommodation made to

allow an employee to practice her religion qualifies as a hardship at all. However, the court need

not reach that issue because any effect on employee morale is speculative. See Cloutier, 390 F.3d

at 135 ("Courts are somewhat skeptical of hypothetical hardships that an employer thinks might

be caused by an accommodation that never has been put into practice."). There are still issues of

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material fact as to whether a disruption to CMMC's scheduling rules qualifies as an undue

hardship.

CM:MC fmiher argues that its nurse leaders cannot facilitate shift-swapping for Ms.

Crabtree. Put simply, CMMC argues that its nurse leaders are too busy to facilitate the process.

In CMMC's words:

Facilitating shift swaps for Ms. Crabtree would involve more than a simple email
blast~nurse leaders would need to examine each schedule, identify which CNAs
were not scheduled for that shift, and select someone with comparable experience
and skill to meet the unit's needs. There would then be a dialogue with that person
to determine whether they willing and available to swap, and if so, a follow up
conversation with Ms. Crabtree to ensure that she was available to work that
employee's original shift. The nurse leader is fmiher constrained by budget
concerns and must avoid scheduling employees who would be pushed into
overtime by taking an additional shift.

(Def.'s Mot. Summ. J. 18.)

CM:MC seems to think that facilitating a voluntary shift swap is a far more involved

process than the MHRC has defined it. According to the MHRC, even a simple bulletin board

and a favorable attitude towards shift-swapping can be enough to facilitate voluntary swaps. See

94-348 C.M.R. ch. 3, § 14(2)(C)(l)(a). Even if these more limited efforts would be insufficient

to accommodate Ms. Crabtree in light of her religious belief that precludes her from soliciting

her replacement, there are still issues of fact as to whether greater nurse leader involvement in

the shift-swapping process for Ms. Crabtree would constitute an undue hardship. 5 The MHRC

assumes that the administrative costs necessary for accommodating an employee's religious

practice generally do not constitute more than a de minimis cost to an employer. 94-348 C.M.R.

ch. 3, § 14(2)(D)(l). CMMC asserts that its nurse leaders do not have the time to facilitate shift

swapping, but CMMC does not explain how much time it would take a nurse leader to secure a

5
CMMC also argues that greater nurse leader involvement could hurt employee morale. This argument fails for the
reasons stated previously.

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voluntary swap for one CNA, nor does it account for the possibility of securing a long-term

swapping arrangement between Ms. Crabtree and another employee.

Despite claiming that facilitating shift-swapping would be an undue hardship, CMMC

acknowledges that it already facilitates shift-swapping for at least one other Seventh-day

Adventist employee who is uncomfortable soliciting others to swap shifts with him. (Def.' s

S.M.F. 48.) The court cannot grant sumrnaiy judgment on this record, which amounts to each of

the parties advancing their version of the facts they likely plan to present at trial. Undue hardship

in this context is a question properly left to the factfinder. There are still issues of material fact as

to whether accommodating Ms. Crabtree would be an undue hardship.

Punitive Damages

Under the Maine Act, punitive damages are available if Ms. Crabtree "demonstrates that

[CMMC] engaged in a discriminatory practice or discriminatory practices with malice or with

reckless indifference to the rights of an aggrieved individual protected by this Act." 5 M.R.S. §

4613(2)(B)(8)(c) (2021). The standard of proof applicable to Ms. Crabtree's punitive damages

claim is "clear and convincing evidence." Batchelder v. Realty Res. Hospitality, LLC, 2007 ME

17, ,r 22, 914 A.2d 1116.

CMMC argues that even if Ms. Crabtree succeeds on her religious discrimination claim,

there is no evidence in the record of malice or reckless indifference. Ms. Crabtree avers that she

informed CMMC that she had a religious belief that precluded her from soliciting someone else

to work on Saturday. Ms. Crabtree avers that CMMC told her that she would be responsible for

finding her own replacement for Saturday shifts regardless. A jury could reasonably conclude

that this reflects at least a reckless indifference towards Ms. Crabtree's rights.

There are still issues of material fact as to punitive damages.

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Substantially Equivalent Employment

Ms. Crabtree has moved for partial summary judgment against CMMC as well. Ms.

Crabtree contends that she is entitled to summary judgment on CMMC's affirmative defense of

failure to mitigate damages.

Back pay rewarded as relief for an employment discrimination claim is reduced by

"actual earnings on another job during the pertinent period or by whatever amount the victim

could with reasonable diligence have earned during that time." Walsh v. Town ofMillinocket,

2011 ME 99, 1 34, 28 A.3d 610. The employer has the burden to prove that the employee could

have mitigated damages by finding other employment. LeBlond v. Sentinel Serv., 635 A.2d 943,

945 (Me. 1993). "As long as the claimant has made some effort to secure other employment, the

burden to prove failure to mitigate normally resides with the defendant-employer, which then

must show that (i) though substantially equivalent jobs were available in the relevant geographic

area, (ii) the claimant failed to use reasonable diligence to secure suitable employment." Quint v.

A.E. Staley Mfg. Co., 172 F.3d 1, 16 (1st Cir. 1999).

Ms. Crabtree's motion is based on one argument: that CMMC has failed to produce any

evidence that substantially equivalent jobs were available to Ms. Crabtree. A recent Federal

Court for the District of Maine decision provides a helpful discussion for what employment

qualifies as "substantially equivalent:"

The comparability of other jobs turns on numerous factors-e.g.[,] stature,
amount of compensation, job responsibilities, and working conditions. A
wrongfully discharged employee need not go into another line of work, accept a
demotion, or take a demeaning position, and it is well-established that he need not
accept employment that is located an unreasonable distance from his home.

Mullen v. New Balance Athletics, Inc., No. l:l 7-cv-194-NT, 2019 U.S. Dist. LEXIS 30967, at

*19 (D. Me. Feb. 27, 2019) (citations and quotations omitted).

15
Here, the parties do not dispute that Ms. Crabtree made some effort to find employment,

at least prior to 2019. Therefore, it is CMMC's burden to show that there were substantially

equivalent jobs in the relevant geographical area. CMMC contends that Ms. Dingley informed

Ms. Crabtree that there were alternative positions at CMMC that Ms. Crabtree could apply for,

and encouraged her to do so. (Def.'s Add. S.M.F., 35.) Ms. Crabtree testified that she explored

other CNA training opportunities at nearby healthcare facilities. (Id. ,, 14-15.) Finally, CMMC

proffers Maine Department of Labor reports indicating that the demand for workers in healthcare

and social assistance was "above-average" in Central and Western Maine as of 2016, and that

there were 687 vacant healthcare support positions in those regions at the same time. (Id. ,, 25­

26.)

CMMC has produced enough evidence to generate an issue of material fact as to the

availability of substantially equivalent employment. Ms. Crabtree argues that none of this

evidence speaks to the availability of substantially equivalent employment because CMMC has

not produced evidence of a position that offered paid, tuition-free training to become a CNA like

CMMC's EWYL program did. CNA is an entry level healthcare position. While an employee

need not accept a demotion or go into another line of work to mitigate their damages, this does

not mean that substantially equivalent employment is limited to alternative positions with

identical benefits. CMMC's EWYL program is part of its compensation package, and would

certainly be a factor for the jury to consider in determining whether substantially equivalent

positions were available. However, it would not be irrational for a jury to conclude that

substantially equivalent jobs were available when a CNA position is, at bottom, an entry level

healthcare support position and other entry level healthcare support positions were seemingly

available.

16
There remain issues of material fact as to whether Ms. Crabtree mitigated her damages.

Plaintiffs motion will be denied.

The entry is

Defendant Central Maine Medical Center's Motion to
Enforce a Settlement Agreement aud Motion for Summary
Judgment is DENIED.

Plaintiff Helen Crabtree's Motion for Partial Summary
Judgment is DENIED.

The Clerk is directed to enter this order into the docket by
reference pursuant to M.R.Civ.P. 79(a).

Date: '6 / 3() '2021 '(
Harold Stewart, II
Justice, Superior Court

17
HELEN CRABTREE - PLAINTIFF SUPERIOR COURT
272 MAIN STREET ANDROSCOGGIN, ss.
AUBURN ME 04210 Docket No AUBSC-CV-2019-00010
Attorney for: HELEN CRABTREE
JOHN P GAUSE - RETAINED I 1/01/2019
EASTERN MAINE LAW, LLC, PA DOCKET RECORD
23 WATER STREET, SUITE202
BANGORME04401

v.
CENTRAL MAINE MEDICAL CENTER - DEFENDANT

Attorney for: CENTRAL MAINE MEDICAL CENTER
MICHAEL MESSERSCHMIDT - REfAINED 04/11/2019
PRETI FLAHERTY BELIVEAU PACHIOS LLP
ONE CITY CENTER
PO BOX9546
PORTLAND ME 04112-9546

Attorney for: CENTRAL MAINE MEDICAL CENTER
LAURA RIDEOUT - RETAINED 09/18/2019
PRETI FLAHERTY BELIVEAU PACHIOS LLP
ONE CITY CENTER
PO BOX9546
PORTLAND ME 04112-9546

Filing Document: COMPLAINT Minor Case Type: CONST!TUTIONAUCIVIL RIGHTS
Filing Date: 01/18/2019

Docket Events:
01/18/2019 FILING DOCUMENT- COMPLAINT FILED ON 01/18/2019

01/18/2019 Party(s): HELEN CRABTREE
ATTORNEY - RETAINED ENTERED ON 01/18/2018

01/18/2019 Party(s): HELEN CRABTREE
MOTION - MOTION PROCEED W/0 FEE FILED WITH AFFIDAVIT ON 01/18/2019

01/23/2019 Party(s): HELEN CRABTREE
MOTION - MOTION PROCEED W/0 FEE GRANTED ONOI/23/2019
MARY GAY KENNEDY , JUSTICE
COPIES TO PARTIES/COUNSEL

03/13/2019 Party(s): CENTRAL MAINE MEDICAL CENTER
SUMMONS/SERVICE -ACK OF RECEIPT OF SUMM/COMP SERVED ON03/12/2019
THROUGH LOIS DOWNS

03/13/2019 Party(s): CENTRAL MAINE MEDICAL CENTER
SUMMONS/SERVICE - ACK OF RECEIPT OF SUMM/COMP FILED ON 03/12/2019

04/02/2019 Party(s): HELEN CRABTREE
MOTION - MOTION FOR WITHDRAWAL OF CNSL FILED ON 03/28/2019
WITH MEMORANDUM OF LAW AND PROPOSED ORDER

Party(s): CENTRAL MAINE MEDICAL CENTER