Cole v. Maine, 1:17-cv-00071-JAW

KAYLA MARIE COLE and TERESA L. GORDON, Plaintiffs, v. STATE OF MAINE, OFFICE OF INFORMATION TECHNOLOGY, Defendant.

1:17-cv-00071-JAW

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

September 25, 2018

ORDER ON MOTION FOR SUMMARY JUDGMENT

Two former employees allege that their state-agency employer harassed, discriminated, and retaliated against them in violation of the Maine Whistleblowers' Protection Act, Title VII, and the Maine Human Rights Act. Concluding that there are genuine issues of material fact regarding the claims of retaliation under the Maine Whistleblowers' Protection Act, Title VII and the Maine Human Rights Act and regarding the hostile work environment claims under Title VII and the Maine Human Rights Act, the Court denies the state agency's motion for summary judgment on those claims, but the Court grants summary judgment on the disparate treatment theory underlying the Title VII and Maine Human Rights Act sex discrimination claims.

I. PROCEDURAL HISTORY

On February 23, 2017, Kayla Marie Cole and Teresa L. Gordon filed suit in this Court against the state of Maine Office of Information Technology (OIT), alleging that the OIT, their former employer, violated the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq, (Title VII), the Maine Human Rights Act, 5 M.R.S. §§ 4551 et seq. (MHRA), and the Maine Whistleblowers' Protection Act, 26 M.R.S. §§ 831, et seq. (WPA). Compl. (ECF No. 1). OIT answered the Complaint on May 19, 2017, denying its essential allegations and raising affirmative defenses. Answer to Compl. (ECF No. 5). On August 11, 2017, OIT filed an Amended Answer. Am. Answer to Compl. (ECF No. 11).

On December 21, 2017, OIT filed a motion for summary judgment and a statement of material facts. Def.'s Redacted Mot. for Summ. J. (ECF No. 27) (Def.'s Mot.); Def.'s Redacted Statement of Fact (ECF No. 28) (DSMF). On February 9, 2018, Ms. Cole and Ms. Gordon filed a response, opposing the motion, together with an opposing statement of material facts with a statement of additional material facts. Pls.' Resp. to Def.'s Mot. for Summ. J. (ECF No. 38) (Pls.' Resp.); Pls.' Opposing Statement of Material Fact and Additional Facts (ECF No. 39) (PRDSMF; PSAMF). On March 7, 2018, OIT filed a reply to the Plaintiffs' response with a reply to Plaintiffs' statement of material facts. Def.'s Reply to Resp. to Def.'s Mot. for Summ. J. (ECF No. 42) (Def.'s Reply); Def.'s Reply to Additional Statement of Facts (ECF No. 43) (DRPSAMF).

II. STATEMENT OF FACTS¹

A. Background

1. The Parties

OIT employed Kayla Cole first as a Business Analyst, and later as a Project Manager in its Project Management Office (PMO). DSMF ¶ 1; PRDSMF ¶ 1. OIT also employed Teresa Gordon as a Business Analyst, where she performed all duties of the position, including administrative duties for the then-Director of the PMO (Male Employee).² OIT promoted Ms. Gordon to Project Manager in April 2015. DSMF ¶ 2; PRDSMF ¶ 2.

OIT employed Joshua Karstens during this time, but before September 29, 2014, he worked as a project manager, and neither Ms. Gordon nor Ms. Cole reported to him as their supervisor. DSMF ¶ 3; PRDSMF ¶ 3. Between September 29, 2014, and October 8, 2015, Mr. Karstens became the Agile Program Manager in the PMO. DSMF ¶ 4; PRDSMF ¶ 4. During that time, Mr. Karstens was Ms. Cole's direct supervisor and completed her performance evaluations. DSMF ¶ 5; PRDSMF ¶ 5. Over the same period, both Ms. Gordon and Mr. Karstens reported to Male Employee.³ DSMF ¶ 6; PRDSMF ¶ 6.

In a performance evaluation for the period September 2, 2014 to February 8, 2015, Mr. Karstens gave Ms. Cole an overall performance rating of "outstanding."DSMF ¶ 7; PRDSMF ¶ 7. On November 4, 2014, Ms. Cole emailed Mr. Karstens, informing him that she felt disrespected by an Instant Message he had sent and his statement that she was "just as smart" as a male colleague, and in response, Mr. Karstens stated that he thought Ms. Cole was the top performer on the team.⁴ DSMF ¶ 8; PRDSMF ¶ 8. Similarly, in a performance evaluation for the period of February 9 to August 8, 2015, Mr. Karstens gave Ms. Cole an overall performance rating of "exceeds expectations." DSMF ¶ 9; PRDSMF ¶ 9. Neither evaluation by Mr. Karstens included any statements critical of Ms. Cole's performance. DSMF ¶ 10; PRDSMF ¶ 10. In September 2014, Mr. Karstens nominated Ms. Cole to be Employee of the Month. DSMF ¶ 11; PRDSMF ¶ 11. In September 2015, Mr. Karstens was part of the panel that promoted Ms. Cole to the position of Agile Project Manager. DSMF ¶ 12; PRDSMF ¶ 12.

On October 8, 2015, OIT promoted Mr. Karstens to the position of Director of the Business Process Management Office (BPM). DSMF ¶ 13; PRDSMF ¶ 13. Between October 8, 2015, and February 16, 2016, Male Employee and Mr. Karstens were peers, and both Ms. Gordon and Ms. Cole reported directly to Male Employee. DSMF ¶ 14; PRDSMF ¶ 14.

2. Agile Wave

Effective September 1, 2015, Ms. Gordon and Male Employee were also partners in their own business called Agile Wave. DSMF ¶ 65; PRDSMF ¶ 65. Between May and October 2016, Ms. Cole performed work for Agile Wave. DSMF ¶ 66; PRDSMF ¶ 66. On September 3, 2015, Ms. Gordon told Mr. Karstens that she and Male Employee were planning to leave OIT to start their own business. DSMF ¶ 15; PRDSMF ¶ 15. Ms. Gordon also told Mr. Karstens that she and Male Employee could not leave without him, and that once the venture was underway, Mr. Karstens would have a position at Agile Wave. DSMF ¶ 16; PRDSMF ¶ 16. However, Mr. Karstens declined the offer to join Ms. Gordon and Male Employee in their proposed business venture. DSMF ¶ 17; PRDSMF ¶ 17. As evidenced by these interactions, Ms. Gordon did not have an issue with Mr. Karstens until sometime after September 3, 2015. DSMF ¶ 18; PRDSMF ¶ 18.

3. The Pega Enterprise Agreement

The Pega Enterprise Agreement is an $8 million sole source contract negotiated "confidentially" by Jim Smith and Doug Averill.⁵ PSAMF ¶ 156; DRPSAMF ¶ 156. Jim Smith knew in August 2015 that Doug Averill's employment with Pegasystems Inc. was not in accordance with the contract between the state and Pegasystems nor compliant with the state procurement policy.⁶ PSAMF ¶ 157;DRPSAMF ¶ 157. Mr. Karstens, Mr. Smith, and Ms. Perkins knew on October 23, 2015 that Mark Lutte, Director of Purchases, said the Pega Enterprise Agreement did not get signed off or seen by Purchases as required. PSAMF ¶ 158; DRPSAMF ¶ 158.

When there is an extension amendment for an OIT contract for more than $10,000, it is treated like a sole source contract, and must be approved by the State Procurement Review Committee. Amendments in excess of $3 million must be reviewed by the Attorney General's office. PSAMF ¶ 159; DRPSAMF ¶ 159. The State Procurement Review Committee did not sign off on the Pega Enterprise Agreement. PSAMF ¶ 160; DRPSAMF ¶ 160. In Ms. Cole's and Ms. Gordon's view, the Pega Enterprise Agreement did not go through the proper procurement process and the circumstances surrounding it were inappropriate and unlawful.⁷ PSAMF ¶ 161; DRPSAMF ¶ 161. Ms. Cole and Ms. Gordon raised concerns about the lawfulness of the Pega Systems contract with Mr. Karstens directly on November 10, 2015, and Ms. Gordon raised the issue previously as well.⁸ DSMF ¶ 105; PRDSMF ¶105. During Ms. Gordon's and Ms. Cole's February 22, 2016 meeting with Pat Beaudoin, HR Director, regarding issues with Mr. Karstens, they reported to Ms. Beaudoin that employees of the PMO were being asked to use a software tool obtained under a contract they did not think had gone through the right process and that was illegal. DSMF ¶ 97; PRDSMF ¶ 97. Ms. Gordon and Ms. Cole further reported that they attended a meeting on November 10, 2015 with Mr. Karstens in which they and a contractor were being pressured to "push" the Pega contract and sell licenses to agencies even if it did not feel like a good fit.⁹ DSMF ¶ 89; PRDSMF ¶ 89. Ms. Beaudoin did not mention Ms. Cole's and Ms. Gordon's alleged concerns about OIT's contract with Pega Systems to Mr. Smith or to anyone else. DSMF ¶ 31; PRDSMF ¶ 31.

B. Interactions between Mr. Karstens, Ms. Cole, and Ms. Gordon

On December 2, 2015, Ms. Cole attended an offsite holiday party at a bowling alley with a group of male and female coworkers, including Mr. Karstens. DSMF ¶ 19; PRDSMF ¶ 19. According to Ms. Cole, during the outing, Mr. Karstens was showing the group an x-ray of his knee because there was an item in between his legs showing up on the x-ray and he was telling people that is how big his penis was.¹⁰DSMF ¶ 20; PRDSMF ¶ 20. During the bowling outing, Mr. Karstens asked several people, including Ms. Cole, to take a picture of him posing. DSMF ¶ 21; PRDSMF ¶ 21. Ms. Cole took a picture with her cellphone of Mr. Karstens posing in a sexually suggestive manner.¹¹ DSMF ¶ 21; PRDSMF ¶ 21. Ms. Cole showed the picture to her attorney but did not show it to anyone in Human Resources. DSMF ¶ 22; PRDSMF ¶ 22. Mr. Karstens denies he ever made comments or jokes about his penis. DSMF ¶ 186; PRDSMF ¶ 186.

Male Employee left State employment on February 8, 2016. DSMF ¶ 27; PRDSMF ¶ 27. On February 16, 2016, Jim Smith sent a general announcement to OIT employees that Mr. Karstens had been asked to assume "management responsibility for both BPM and PMO; Ms. Gordon and Ms. Cole received this email on February 17, 2018.¹² DSMF ¶ 28; PRDSMF ¶ 28. The Chief Information Officer of OIT, Jim Smith, was out of state on vacation during the week of February 15, 2016. DSMF ¶ 29; PRDSMF ¶ 29. On February 17, 2017, HR Director Pat Beaudoin called Mr. Smith and told him about Ms. Gordon's and Ms. Cole's report of the alleged barincident that occurred two years prior; she also told him about their complaints about a hostile work environment and that they felt Mr. Karstens had been treating them unfairly.¹³ DSMF ¶ 30; PRDSMF ¶ 30.

On February 19, 2016, Mr. Karstens held his first staff meeting as the PMO Director, with approximately ten to...