Scamman v. Shaw's Supermarkets, Inc.

157 A.3d 223

Lorraine SCAMMAN et al.

v.SHAW'S SUPERMARKETS, INC.

Docket: Fed–16–31

Supreme Judicial Court of Maine.

Argued: October 25, 2016

Decided: March 7, 2017

Corrected: March 23, 2017

Jeffrey Neil Young, Esq., Carol J. Garvan, Esq., and Max I. Brooks, Esq. (orally), Johnson, Webbert & Young, LLP, Augusta, for appellant Lorraine Scamman et al.

K. Joshua Scott, Esq. (orally), Jackson Lewis P.C., Portsmouth, NH, for appellee Shaw's Supermarkets, Inc.

Barbara Archer Hirsch, Esq., Maine Human Rights Commission, Augusta, for amicus curiae Maine Human Rights Commission

Richard L. O'Meara, Esq., Murray Plumb & Murray, Portland, for amicus curiae AARP

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

HUMPHREY, J.

[¶ 1] Pursuant to 4 M.R.S. § 57 (2016), the United States District Court for the District of Maine has certified to us the following question of state law:

Is a claim for disparate impact age discrimination under the Maine Human Rights Act, 5 M.R.S.A. § 4572(1)(A), evaluated under the "reasonable factor other than age" standard, see Smith v. City of Jackson , 544 U.S. 228, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005) ; the "business necessity" standard, see Maine Human Rights Comm'n v. City of Auburn , 408 A.2d 1253 (1979) ; or some other standard?

We answer the certified question as follows: "A claim for disparate impact age discrimination pursuant to the Maine Human Rights Act, 5 M.R.S. § 4572(1)(A), is evaluated according to the 'business necessity' framework."

I. BACKGROUND

[¶ 2] The facts and procedural history are undisputed. Lorraine Scamman and others similarly situated (collectively, the plaintiffs) worked at various Shaw's Supermarkets locations in Maine as full-time employees when their employment was terminated in 2012 as part of a reduction in force. Pursuant to a policy Shaw's implemented to carry out the reduction in force, only full-time employees were terminated. Because full-time employees were, on average, older than part-time employees, the reduction in force affected more older employees, including the plaintiffs, than younger employees. Shaw's explained that "business imperatives made it necessary ... to cut costs by at least $550,000 per week, company-wide, and the reduction in force allowed it to do so."

[¶ 3] After the plaintiffs filed complaints with the Maine Human Rights Commission alleging age discrimination in violation of the Maine Human Rights Act (MHRA), 5 M.R.S. §§ 4551 –4634 (2012),¹ a Commission investigator recommended that the Commission find reasonable grounds to believe that Shaw's had violated the MHRA by discriminating based on age pursuant to a disparate impact theory.² The investigator applied the three-step, burden-shifting "business necessity" framework to analyze the plaintiffs' allegations. See Albemarle Paper Co. v. Moody , 422 U.S. 405, 425, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) ; Griggs v. Duke Power Co. , 401 U.S. 424, 429–35, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) ; Me. Human Rights Comm'n v. City of Auburn , 408 A.2d 1253, 1264–68 (Me. 1979). The Commission voted unanimously to adopt the investigator's analysis and recommendations.

[¶ 4] The plaintiffs then filed a complaint in the Superior Court (Androscoggin County), alleging unlawful employment discrimination based on age pursuant to the MHRA.³ See 5 M.R.S. § 4572(1)(A) (2016). After Shaw's removed the case to the United States District Court for the District of Maine, the court, upon a joint request by the parties, certified to us the question of what framework of proof applies to a claim of disparate impact age discrimination brought pursuant to the MHRA. See Scamman v. Shaw's Supermarkets, Inc. , No. 2:15-cv-00295-JDL, 2016 WL 1366758, 2016 U.S. Dist. LEXIS 10271 (D. Me. Jan. 26, 2016).

[¶ 5] Shaw's argues that a provision of the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C.S. §§ 621 –634 (LEXIS through Pub. L. No. 114–328 ), known as the "reasonable factor other than age" (RFOA) defense, should apply to MHRA claims of disparate impact age discrimination. The parties agree that if the RFOA defense applies pursuant to Maine law, Shaw's is entitled to a judgment as a matter of law on the plaintiffs' age discrimination claim. They also agree that if the Commission was correct to apply the "business necessity" framework instead, further discovery will be necessary to develop the issues of (1) whether the reduction in force was actually motivated by a business necessity and (2) if so, whether less-discriminatory alternatives would have served those business needs.

II. DISCUSSION

A. Acceptance of the Certified Question of State Law

[¶ 6] We must first decide whether to accept and answer the certified question. See 4 M.R.S. § 57 ; Alexander, Maine Appellate Practice § 25.1 at 194 (4th ed. 2013) ("Consideration of the merits of a certified question is not automatic.").

[W]herever reasonably possible, the state court of last resort should be given opportunity to decide state law issues on which there are no state precedents which are controlling or clearly indicative of the developmental course of the state law because this approach (1) tend[s] to avoid the uncertainty and inconsistency in the exposition of state law caused when federal [c]ourts render decisions of [s]tate law which have an interim effectiveness until the issues are finally settled by the state court of last resort; and (2) minimize[s] the potential for state-federal tensions arising from actual, or fancied, federal [c]ourt efforts to influence the development of [s]tate law.

Bankr. Estate of Everest v. Bank of Am., N.A. , 2015 ME 19, ¶ 14, 111 A.3d 655 (quotation marks omitted).

[¶ 7] "Title 4 M.R.S. § 57 authorizes, but does not require, us to consider a certified question of state law posed by a federal court in certain circumstances." Id. ¶ 13 (quotation marks omitted); see M.R. App. P. 25(a). We may consider the merits of a certified question when three criteria are met: "(1) there is no dispute as to the material facts at issue; (2) there is no clear controlling precedent; and (3) our answer, in at least one alternative, would be determinative of the case." Everest , 2015 ME 19, ¶ 13, 111 A.3d 655 (quotation marks omitted).

[¶ 8] In this case, all three requirements are met. First, the material facts are undisputed. Second, there is no clear controlling precedent—although we have made clear that the business necessity test applies in MHRA disparate impact cases based on sex discrimination, see City of Auburn , 408 A.2d at 1261–68, we have not yet expressly articulated what framework applies in age-based disparate impact employment discrimination cases pursuant to the MHRA.⁴ Finally, the plaintiffs agree that if the ADEA's RFOA defense does apply, Shaw's is entitled to a judgment as a matter of law. In one alternative, therefore, our answer to the certified question would be determinative of the case. Because all three criteria are met, we elect to consider and answer the certified question.

B. Legal Background

1. Disparate Impact Discrimination Claims

[¶ 9] The law recognizes at least two theories of liability upon which a plaintiff may prove a claim of employment discrimination: "disparate treatment" and "disparate impact." See EEOC v. Abercrombie & Fitch Stores, Inc. , ––– U.S. ––––, 135 S.Ct. 2028, 2032, 192 L.Ed.2d 35 (2015) ; City of Auburn , 408 A.2d at 1261–63. In a disparate impact claim, such as the suit at issue in this case, the plaintiff alleges that he or she is a member of a protected group that is disproportionately affected by an employer's practice. E.g. , City of Auburn , 408 A.2d at 1264–68. Statistical evidence is the "primary method" by which a plaintiff supports this type of claim.⁵ Id. at 1264.

2. The Business Necessity Framework

[¶ 10] The business necessity framework, pursuant to which the Commission analyzed the disparate impact claim in this case, consists of a three-step burden-shifting scheme:

First, the plaintiff must establish a prima facie case of disparate impact by identifying a facially neutral practice that affects one group more harshly than another. Second, if the plaintiff meets her burden in the first step, the defendant must present prima facie evidence that its practice is justified by a business necessity. Finally, if the defendant meets its burden in the second step, the plaintiff must present prima facie evidence that the defendant's proffered justification is pretextual or that other practices would have a less discriminatory impact.

Dussault v. RRE Coach Lantern Holdings, LLC , 2014 ME 8, ¶ 24, 86 A.3d 52 (citations omitted).

[¶ 11] The federal courts apply the business necessity framework to disparate impact claims brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. §§ 2000e to 2000e–17 (LEXIS through Pub. L. No. 114–328 ), which prohibits discrimination in employment on the basis of various characteristics not including age. See 42 U.S.C.S. § 2000e–2(a) ; Albemarle , 422 U.S. at 425, 95 S.Ct. 2362 ; Griggs , 401 U.S. at 429–35, 91 S.Ct. 849. In City of Auburn , we applied the business necessity framework to an MHRA claim of disparate impact sex discrimination. 408 A.2d at 1264–68.

3. The RFOA Defense

[¶ 12] Although Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of various characteristics other than age, the ADEA is the federal statutory scheme that proscribes age discrimination in employment. See 29 U.S.C.S. § 623(a).⁶ The ADEA also specifies, however, that "[i]t shall not be unlawful for an employer ... to take any action otherwise prohibited under subsection[ ] (a) ... where the differentiation is based on reasonable factors other than age." 29 U.S.C.S. § 623(f)(1). This is the RFOA defense.

[¶ 13] In light of the RFOA defense, courts analyzing disparate impact age discrimination claims filed pursuant to the ADEA do not apply the business necessity framework. Meacham v. Knolls Atomic Power Lab. , 554 U.S. 84,...