MAINE SUPREME JUDICIAL COURT                                          Reporter of Decisions
Decision: 2019 ME 176
Docket:   Yor-18-513
Argued:   October 8, 2019
Decided:  December 30, 2019

Panel:       SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.



                                  DARREN JOHNSON

                                            v.

                                   YORK HOSPITAL


HJELM, J.

         [¶1] Darren Johnson, a former employee of York Hospital, appeals from

a summary judgment entered in favor of the hospital by the Superior Court

(York County, O’Neil, J.) on Johnson’s claims of a hostile work environment and

gender discrimination prohibited by the Maine Human Rights Act and unlawful

retaliation in violation of the Maine Whistleblower’s Protection Act. Johnson

contends that the court erred when it concluded that he failed to present

evidence that (1) he had been subjected to a hostile work environment arising

from sexual harassment; (2) he was terminated from the hospital in retaliation

for complaints he had made about hospital employees; and (3) he was the

victim of gender-based discrimination.           We find no error and affirm the

judgment.
2

                              I. BACKGROUND

      [¶2] We draw the following account of this case from both the procedural

record and the record on summary judgment, which we view in the light most

favorable to Johnson as the nonmoving party. See Grant v. Foster Wheeler, LLC,

2016 ME 85, ¶ 12, 140 A.3d 1242.

      [¶3] In August of 2011, the hospital hired Johnson as a part-time MRI

technician.   When he was hired, Johnson was not promised full-time

employment but believed that he would be able to work more hours or be

placed in a full-time position if the opportunity arose. In 2013, a CAT scan

technician position became available at the hospital. The position was not

advertised, and Johnson did not apply for it, but he found out later that the

position was filled by someone with less experience than he had. The record

does not indicate the gender or any other characteristics of the person who was

hired for the position.

      [¶4] In June of 2013, Johnson learned that a complaint had been made

against him by a co-worker arising from an interaction between them while the

co-worker was a patient at the hospital. Johnson denied any wrongdoing.

Nonetheless, because of the incident, a representative of the hospital’s human
                                                                                                       3

resources office requested that the co-worker be assigned a parking space close

to the hospital building because of “the unpredictability of Johnson’s actions.”

        [¶5] In February of 2014, Johnson met with his supervisor for an annual

performance evaluation. At the meeting, the supervisor told Johnson that he

needed “to work on” his communication style, act less defensively, and improve

his relationships with other staff members. Johnson did not agree with that

assessment. According to Johnson, during the meeting the supervisor told him,

“I can’t stand talking to you anymore. You remind me of my ex-husband.” The

supervisor later explained to Johnson that he reminded her of her ex-husband

because Johnson had been yelling at her.1 After the meeting, Johnson and his

supervisor had very limited contact with each other, and Johnson does not

contend that the supervisor engaged in any other inappropriate conduct.

        [¶6] Three months after the performance evaluation, Johnson became

involved in a disagreement with a nurse about a patient’s care. Following the

incident, Johnson overheard the nurse tell a third person that she would like to

“smack” Johnson.

        [¶7] On May 30, 2014, Johnson met with a human resources officer and

complained about the statements made by the supervisor and the nurse.


  1   Johnson admits that the supervisor explained this to him but denied that he had yelled at her.
4

Approximately ten days later, Johnson clarified to the human resources

department that he felt he was the victim of retaliation and had been sexually

harassed by his supervisor because of her “ex-husband” comment. Given his

allegations, Johnson was advised several times to submit his complaint to the

hospital president through a formal grievance process, but he never did so.

      [¶8] A member of the human resources staff thoroughly investigated

Johnson’s complaint and interviewed several people about Johnson’s

interactions with staff and patients. Among other things, the investigator

interviewed a physician who described an incident in which Johnson had acted

“inappropriate[ly] and aggressive[ly]” toward the nurse who he claimed

wanted to “smack” him, to the point where the physician intervened by

escorting Johnson from the scene. The report concluded that Johnson had

engaged in an “ongoing pattern of inappropriate behavior,” although Johnson

denied having acted improperly.

      [¶9] On June 19, Johnson met with his supervisor and the hospital’s

“Leader of Staff Experiences,” which is a position within the human resources

office. Based on this meeting and the investigation that had been conducted

into Johnson’s complaints, the Leader concluded that “Johnson was creating a

hostile work environment” at the hospital.         As a result, the Leader
                                                                                                       5

recommended to the hospital’s president “that Johnson’s employment with

York [Hospital] be terminated based upon safety concerns relating to patients

and staff.”2 Johnson was terminated on July 5, 2014.

        [¶10] During the time he was employed at the hospital, Johnson did not

consider quitting his job because of any conduct by co-workers; he did not

refrain from going to work because of any concern for harassment or hostility

by others; and he wanted to continue working at the hospital for as long as

possible.

        [¶11] After the hospital terminated Johnson’s employment, he filed a

discrimination complaint against the hospital with the Maine Human Rights

Commission.         See 5 M.R.S. § 4611 (2018).                  The Commission ultimately

determined that there were no reasonable grounds to find that the hospital had

discriminated against Johnson on the basis of sex, that he had been subjected

to a hostile work environment, or that the termination was retaliatory. See

5 M.R.S. § 4612(1), (2) (2018).



   2 This assertion is contained in the hospital’s statement of material fact. See M.R. Civ. P. 56(h)(1).
Johnson’s response was a qualification, see M.R. Civ. P. 56(h)(2), but the accompanying explanation
states only that, while this was the hospital’s stated reason for termination, he disputes the accuracy
of the complaints gathered during the HR investigation “and maintains that his complaints against
others and [his supervisor’s] dislike of him were the driving forces behind his termination.” Johnson
offered no record citations for this response, and the hospital’s assertion is therefore deemed
admitted. See M.R. Civ. P. 56(h)(4).
6

      [¶12] In January of 2017, Johnson filed a complaint against the hospital

in the Superior Court alleging that the hospital had created a sexually

objectionable, hostile work environment in violation of the Maine Human

Rights Act (MHRA), 5 M.R.S. §§ 4551-4634 (2018); that the hospital had

retaliated against Johnson in violation of the Maine Whistleblowers’ Protection

Act (WPA), 26 M.R.S. §§ 831-840 (2018); and that the hospital had fired Johnson

on the basis of his sex also in violation of the MHRA.

      [¶13] The hospital moved for entry of a summary judgment on all of

Johnson’s claims. See M.R. Civ. P. 56. After holding a hearing, the court granted

the motion.    Applying the proper standard for evaluating the record on

summary judgment, the court concluded that, as a matter of law, the incidents

underlying Johnson’s claim of a hostile work environment did not rise to the

level necessary to support such a claim; that Johnson’s WPA claim failed

because there was no evidence of a causal connection between Johnson’s

complaints about his co-workers’ conduct and the hospital’s decision to

terminate him; and that Johnson had not presented evidence that the adverse

employment action instituted by the hospital was based in whole or in part on

his gender.
                                                                               7

      [¶14] From the judgment, Johnson filed a timely appeal. See 14 M.R.S.

§ 1851 (2018); M.R. App. P. 2B(c)(1).

                                II. DISCUSSION

      [¶15] We review the summary judgment de novo to determine if the

record generates any genuine issue of material fact, viewing the evidence in the

record and all reasonable inferences in favor of Johnson as the nonmoving

party. Grant, 2016 ME 85, ¶ 12, 140 A.3d 1242. “A fact is material if it has the

potential to affect the outcome of the suit, and a genuine issue of material fact

exists when a fact-finder must choose between competing versions of the truth,

even if one party’s version appears more credible or persuasive.” Angell v.

Hallee, 2014 ME 72, ¶ 17, 92 A.3d 1154 (quotation marks omitted). A defendant

who moves for a summary judgment bears the burden of establishing, on the

basis of facts that are not subject to genuine dispute, that it is entitled to

judgment as a matter of law. Oceanic Inn, Inc. v. Sloan’s Cove, LLC, 2016 ME 34,

¶ 26, 133 A.3d 1021.

A.    Hostile Work Environment

      [¶16]    Johnson’s claim that he was subjected to a hostile work

environment arising from sexual harassment is based on evidence of two

incidents: his supervisor’s comment that she could not “stand” talking to him
8

because he reminded her of her ex-husband; and, more than three months later,

a co-worker’s statement to a third person that she wanted to “smack him.”

Johnson contends that the court erred by concluding as a matter of law that

these alleged statements did not combine to create a hostile work environment

based on sexual harassment within the meaning of the MHRA.

      [¶17] In pertinent part, the MHRA states, “It is unlawful employment

discrimination, in violation of this Act, . . . [f]or any employer to . . . discharge an

employee or discriminate with respect to . . . terms, conditions . . . or any other

matter directly or indirectly related to employment . . . because of [the

employee’s] . . . sex . . . .” 5 M.R.S. § 4572(1)(A). Therefore, a claim of

discrimination based on a hostile work environment created by sexual

harassment comprises the following elements:

      (1) that [the plaintiff] is a member of a protected class; (2) that [the
      plaintiff] was subject to unwelcome sexual harassment; (3) that the
      harassment was based upon sex; (4) that the harassment was
      sufficiently severe or pervasive so as to alter the conditions of
      plaintiff’s employment and create an abusive work environment;
      (5) that sexually objectionable conduct was both objectively and
      subjectively offensive, such that a reasonable person would find it
      hostile or abusive and the victim in fact did perceive it to be so; and
      (6) that some basis for employer liability has been established.

Watt v. UniFirst Corp., 2009 ME 47, ¶ 22, 969 A.2d 897.
                                                                                9

      [¶18] The question of whether a work environment is actionably hostile

requires a consideration of “all the circumstances, including the frequency of

the discriminatory conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.” Doyle v. Dep’t of Human

Servs., 2003 ME 61, ¶ 23, 824 A.2d 48 (quotation marks omitted). To be

actionable, the discriminatory conduct must be “sufficiently severe or

pervasive [to create] a hostile or abusive working environment.” Nadeau v.

Rainbow Rugs, Inc., 675 A.2d 973, 976 (Me. 1996). “The standard requires an

objectively hostile or abusive environment—one that a reasonable person

would find hostile or abusive—as well as the victim’s subjective perception that

the environment is abusive.” Id.; see also Faragher v. City of Boca Raton, 524

U.S. 775, 786-88 (1998) (discussing claims of workplace sexual harassment

that violates the applicable provisions of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-2(a)(1) (LEXIS through Pub L. No. 116-77)).

      [¶19] Even when the evidence is viewed in the light most favorable to

Johnson, the two separate incidents underlying his discrimination claim do not,

as a matter of law, rise to the level of sexual harassment that resulted in an

actionably hostile or abusive work environment. The second incident, when
10

Johnson overheard a co-worker tell someone that she wanted to “smack”

Johnson, was not even arguably connected to Johnson’s gender.

      [¶20] That leaves only the first incident. An isolated incident may result

in workplace discrimination, but only if that incident is “extremely serious.”

Faragher, 524 U.S. at 788; see also Rivera-Rivera v. Medina & Medina, Inc., 898

F.3d 77, 93 (1st Cir. 2018). The single comment of Johnson’s supervisor that

she could not tolerate talking with him and that he reminded her of her former

husband is not of that magnitude.

      [¶21]   For these reasons, the court correctly granted a summary

judgment in favor of the hospital on Johnson’s discrimination claim based on

allegations of sexual harassment.

B.    Whistleblower Retaliation

      [¶22] Johnson next contends that the court erred when it concluded that

the record on summary judgment did not include evidence that the hospital’s

decision to terminate his employment was in retaliation for complaints he had

made about other employees’ conduct toward him and therefore was in

violation of the WPA. See 26 M.R.S. § 833(1)(A)-(B).

      [¶23] To establish a prima facie case for retaliation pursuant the WPA,

an employee must show that (1) he “engaged in activity protected by the
                                                                               11

statute, (2) [he] was the subject of adverse employment action, and (3) there

was a causal link between the protected activity and the adverse employment

action.” Sullivan v. St. Joseph’s Rehab. & Residence, 2016 ME 107, ¶ 14, 143 A.3d

1283 (quotation marks omitted). “In the context of the summary judgment

analysis, the employee’s burden of proving a prima facie case of retaliation is

relatively light, and requires only a small showing that is not onerous and is

easily made.” Brady v. Cumberland Cty., 2015 ME 143, ¶ 14, 126 A.3d 1145

(citation omitted) (quotation marks omitted). An employee’s protected activity

is causally connected to the adverse employment action “when the alleged

retaliation was a substantial, even though perhaps not the only, factor

motivating the adverse employment action.”          Id. ¶ 16 (quotation marks

omitted).   Any relevant evidence, including temporal proximity, may be

considered in determining whether there is an arguable causal nexus. See

Cormier v. Genesis Healthcare LLC, 2015 ME 161, ¶ 22, 129 A.3d 944; Brady,

2015 ME 143, ¶ 16, 126 A.3d 1145; Daniels v. Narraguagus Bay Health Care

Facility, 2012 ME 80, ¶ 21, 45 A.3d 722.

      [¶24] The record on summary judgment affirmatively establishes the

hospital’s stated reason for terminating Johnson’s employment—specifically,

“safety concerns relating to patients and staff” as created by Johnson’s behavior.
12

The termination decision followed a “thorough” investigation of Johnson’s own

complaints—an investigation that revealed that Johnson himself had engaged

in an “ongoing pattern of inappropriate behavior.” A human resources officer

at the hospital (the Leader of Staff Experiences) relied on the results of the

investigation, concluded that Johnson had created a “hostile work

environment,” and recommended to the hospital’s president that Johnson be

fired because Johnson posed “safety concerns” for patients and staff. Johnson’s

employment was then terminated.

      [¶25]    In his summary judgment filings, Johnson disputed the

truthfulness of the accounts of his own behavior provided to the hospital’s

investigator. That dispute, however, does not transform the hospital’s rationale

for its decision to terminate Johnson’s employment into one that was illegal.

Rather, on this record, as the trial court astutely observed, Johnson’s dispute

shows only that the reports of Johnson’s intolerable behavior may have been

incorrect. Thus, it remains established that Johnson was terminated not for

retaliatory reasons but based on investigated reports of his own untoward

conduct.   Therefore, the record does not generate a prima facie case of
                                                                                                    13

retaliation, and the court correctly entered a summary judgment against

Johnson on his WPA claim.3

C.       Sex Discrimination

         [¶26] Johnson finally contends that the court erred by granting a

summary judgment on his claim of workplace sex discrimination that resulted

in his discharge from employment. As framed by Johnson, the factual predicate

for this claim consists of the hospital’s 2013 decision to fill a CAT technician

position with another person and his supervisor’s comment in February 2014,

when she disparagingly compared Johnson to her ex-husband. In its order

granting a summary judgment for the hospital, the court concluded that the

former aspect of Johnson’s claim was time-barred and that the latter did not

reflect gender-based animus.

         [¶27] Set out in the MHRA, the legal basis for Johnson’s claim of gender

discrimination is the same as the law that underlies his claim of a hostile work




     3To the extent that Johnson suggests that there is evidence of causation based on the temporal
proximity between the date of his complaints and the date he was fired, that argument fails on this
record because, as we discuss in the text, the evidence establishes that the hospital terminated his
employment for other reasons, namely, the reports of Johnson’s own behavior that the hospital
received from other employees. We therefore need not address whether temporal proximity alone
is sufficient to generate a dispute of material fact as to causation, allowing a plaintiff to survive a
motion for summary judgment. See Theriault v. Genesis HealthCare LLC, 890 F.3d 342, 352 (1st. Cir.
2018) (collecting Maine cases and construing Maine law to require more than temporal proximity to
make out a prima facie case of causation in WPA retaliation cases).
14

environment: “It is unlawful employment discrimination, in violation of this

Act, . . . [f]or any employer to . . . discharge an employee . . . because of [the

employee’s] . . . sex . . . .” 5 M.R.S. § 4572(1)(A).

      [¶28] In claims of sex discrimination, Maine law is still based on the

burden-shifting model announced in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802-803 (1973). See Me. Human Rights Comm’n v. Dep’t of Corr., 474 A.2d

860, 866-67 (Me. 1984); Me. Human Rights Comm’n. v. Auburn, 408 A.2d 1253,

1261-62 (Me. 1979). Pursuant to that framework, the plaintiff has the initial

burden of production and must present evidence that he or she is a member of

a protected class, was qualified for the position at issue, and was adversely

treated by the employer based on gender. Me. Human Rights Comm’n v. Dep’t of

Corr., 474 A.2d at 867. If, in the context of summary judgment motion practice,

the employee meets the burden of production for “these three elements, the

burden then shifts to the employer to produce evidence of a legitimate,

nondiscriminatory basis for its action.” Daniels, 2012 ME 80, ¶ 15, 45 A.3d 722.

Finally, if the employer presents such evidence, “the burden shifts back to the

plaintiff to demonstrate that the nondiscriminatory reason is pretextual or

irrelevant and that the unlawful discrimination brought about the adverse

employment action.” Doyle, 2003 ME 61, ¶ 15, 824 A.2d 48.
                                                                                15

      [¶29] In the context of summary judgment motions in claims of WPA

retaliation, we have dispensed with the McDonnell Douglas framework because

once a plaintiff produces evidence that satisfies the three elements of the initial

step in that process, there is no reason to go further; the plaintiff has then made

out a prima facie case, and the remaining steps are useful only at trial where

the burden of persuasion is at issue, and not the burden of production, which is

the dispositive question raised in a summary judgment motion. See Brady,

2015 ME 143, ¶¶ 35-36, 126 A.3d 1145. We have not had occasion to consider

whether there is any reason not to disengage the McDonnell Douglas paradigm

from sex-based discrimination claims. This case also does not create such an

occasion because, as we now explain, the record on summary judgment does

not allow Johnson to satisfy even the initial requirements of that framework.

      [¶30] The record is not sufficient to generate a triable contention that

Johnson was terminated from employment by the hospital because he is male.

As we have discussed above, the record establishes the basis for that adverse

employment action, namely, Johnson’s seriously concerning and disruptive

conduct, which created a hostile work environment for other employees and

concerns for the safety of others—patients and staff alike.
16

         [¶31] Beyond that, regarding the specific factual grounds for this claim,

the record is devoid of any evidence suggesting that, when the hospital filled

the CAT technician position in 2013, it passed over Johnson because of his

gender. The record reveals nothing more than that the person selected by the

hospital was less qualified than Johnson. On that meager evidence, a fact-finder

could not conclude that Johnson’s sex had anything to do with the hospital’s

hiring decision.4

         [¶32] With respect to the second factual aspect of this claim, as we have

noted, the court concluded that the supervisor’s comment that Johnson

reminded her of her former husband could not demonstrate that the ultimate

termination decision was based in whole or in part on gender.                               At oral

argument, the hospital conceded that, for purposes of a summary judgment

analysis, the supervisor’s statement could be viewed as reflective of sex-based

animus. Even so, the question is whether the record contains evidence of a

causal connection between that isolated statement and Johnson’s discharge five

months later.




     The hospital argues alternatively, and the court concluded, that this part of Johnson’s claim was
     4

time-barred. See 5 M.R.S. § 4613(2)(C) (2018). Because there is no evidence of sex-based
discrimination in the first place when the hospital decided to assign someone other than Johnson to
the CAT technician position, we need not and do not reach that issue.
                                                                                                17

       [¶33] The record contains no such evidence. Johnson was fired because

a member of the hospital’s human resources department reviewed the results

of a thorough personnel investigation that revealed information about

Johnson’s disruptive and unacceptable workplace behavior, and then, because

of the safety concerns revealed by the investigation, recommended to the

hospital’s president that Johnson be terminated. Further, there is no evidence

that Johnson’s immediate supervisor, who had made the comment, played any

role in the decision-making process that led to Johnson’s termination.5

       [¶34] In concluding that the record does not generate a prima facie case

of sex-based discrimination, we remain “mindful that discrimination claims in

general are often difficult to assess at the summary judgment stage, and

particularly that the issue of whether an employee has generated an issue of

fact regarding an employer’s motivation or intent is one heavily dependent on

the individual facts before the court.” Daniels, 2012 ME 80, ¶ 15, 45 A.3d 722

(quotation marks omitted); see Cummings v. Standard Register Co., 265 F.3d 56,


   5  The “cat’s-paw” theory of employer liability may allow an employer to be held liable for
employment discrimination even if the decision-maker was unaware of the employee’s protected
activity or status. Cormier v. Genesis Healthcare LLC, 2015 ME 161, ¶ 18 n.4, 129 A.3d 944. That
theory “requires evidence that an agent of the employer with a retaliatory motive intentionally
influenced another agent, who is unaware of the protected activity, to take adverse employment
action against the employee. The improper motive is thereby imputed to the decision-maker as
evidence of a causal connection between the protected activity and the adverse action.” Id. Johnson
does not invoke that theory, and this record on summary judgment would not support it in any event.
18

63 (1st Cir. 2001) (recognizing that “discrimination is often subtle and

pervasive,” so plaintiffs must be able to rely on circumstantial evidence to show

discrimination); Conway v. Electro Switch Corp., 825 F.2d 593, 597 (1st Cir.

1987) (same). Nonetheless, the record in this case does not generate a triable

contention that Johnson was fired because he is male.

                                      III. CONCLUSION

        [¶35] In summary, the court did not err by granting a summary judgment

in favor of York Hospital on all of Johnson’s claims of discrimination in the

workplace.

        The entry is:

                           Judgment affirmed.



Sarah A. Churchill, Esq. (orally), Nichols & Churchill, P.A., Portland, for appellant
Darren Johnson

Mark V. Franco, Esq., and Jeana M. McCormick, Esq. (orally), Drummond
Woodsum, Portland, for appellee York Hospital


York County Superior Court docket number CV-2017-25
FOR CLERK REFERENCE ONLY
