331 F.Supp.2d 3 (2004) | Cited 2 times | D. Maine | August 19, 2004


The plaintiff, Lisa M. Higgins, has sued her former employer,The TJX Companies and the Concord Group, Inc., d/b/a A.J. Wright(hereinafter "A.J. Wright"). She claims that A.J. Wright sexuallyharassed and retaliated against her in violation of Title VII ofthe Civil Rights Act and the Maine Human Rights Act. Higgins alsoasserts claims for battery and intentional and negligentinfliction of emotional distress. I GRANT A.J. Wright's motionfor summary judgment.


On its motion for summary judgment, A.J. Wright submitted astatement of material facts supported by record citations inaccordance with Local Rule 56(b). Higgins responded with aso-called "Statement of Material Facts Disputed." Many of theparagraphs in Higgins' submission mirror, word for word, the paragraphs in A.J. Wright's statement of materialfacts. None of the paragraphs, however, admits, denies orqualifies A.J. Wright's assertions, as required by Local Rule56(c).1 Local Rule 56(e) provides that "[f]acts containedin a supporting . . . statement of material facts, if supportedby record citations as required by this rule, shall be deemedadmitted unless properly controverted." Since Higgins failed tocontrovert any of A.J. Wright's assertions, the facts stated byA.J. Wright are deemed admitted.

The A.J. Wright store, Portland, Maine, hired Higgins in May of2002. Defendant's Statement of Material Facts ("Def.s' SMF") ¶ 1.A.J. Wright hired Higgins to work approximately 24 hours perweek, though sometimes she worked more, depending on the store'sstaffing needs. Id. ¶ 3. Higgins was aware of A.J. Wright'ssexual harassment policy. The policy included a process forcomplaining about sexual harassment. Id. ¶ 8.

When Higgins started working at the store in May, a maleco-worker began making sexually charged comments to her. Id. ¶10. On one occasion, he put his arm around Higgins and tried totouch her leg. Id. ¶ 11. Some of Higgins' other co-workersobserved this behavior. Plaintiff's Statement of Material Facts("Pl.'s SMF") ¶ 10. In late May or early June, Higgins reportedthe male co-worker's conduct to her supervisor. Def.s' SMF ¶ 14. Store management initiated an investigation into the conductimmediately. Managers interviewed and obtained written statementsfrom Higgins and some of her co-workers. The worker in questionwas not permitted to return to the store while the investigationwas pending. Id. ¶¶ 16, 17. Store managers posted a notice toemployees stating that he would be arrested if he came to thestore. Id. ¶ 19. A.J. Wright terminated him on June 6, 2000.Id. ¶ 21.

During the investigation and thereafter, the worker in questiondid not enter the store. However, he was seen hanging around theparking lot in front of the store. Once, he and his girlfriendconfronted Higgins in the parking lot and threatened to "beat herup." Id. ¶¶ 20-21. A.J. Wright does not own the parking lot.Id. ¶ 20.

Higgins' Associate Record Card ("ARC") contains severalnotations regarding her work performance. On June 16, 2002,Higgins was cited for "poor performance" for "not staying in herwork area." Id. ¶ 24. Higgins does not remember which managercounseled her about staying in her work area. Id. ¶ 26. Higginswas also counseled by an unknown supervisor for misusing herbreak periods. Id. ¶ 29. In addition, Ms. Thibeault, one ofHiggins' supervisors, counseled Higgins for leaving the fittingroom unattended and for wearing open-toe shoes in violation ofthe company's dress code. Id. ¶¶ 28, 30.

Higgins claims that after she complained about the co-worker'sconduct, "everything just started getting on a bad start for[her]." Id. ¶ 45. On June 17, 2002, after the co-worker hadbeen fired, John Steinman was hired as a manager for the A.J. Wright store and became one of Higgins'supervisors. Id. ¶ 25. According to Higgins, Steinman "holleredat her" (but did not use obscene or threatening language) andwalked around the store with another employee and "stared ather." Id. ¶¶ 46, 47. Higgins admits that Steinman yelled atother employees and treated other employees the "same way" thathe treated her. Id. ¶ 43.

On June 30, 2002, Higgins arrived at work to find that she andone other employee were the only two employees working (otherscheduled employees had "called out") Id. ¶ 32. Higgins wasfrustrated and upset because Steinman remained in his office,rather than help customers. Id. ¶ 34. Eventually, anotheremployee arrived, and Higgins began working in the fitting roomarea. Id. ¶ 35. Higgins had a question about where an itembelonged in the store. She called the employee at the ServiceDesk to ask about it. Id. ¶ 36. Steinman saw Higgins on thephone and approached her to ask what was going on. When Higginsexplained, Steinman told Higgins that she should have asked him,not another employee, where the item belonged. Steinman toldHiggins that he was going to reduce her hours for being on thetelephone. Id. ¶¶ 37, 38. Higgins complained that she had beenworking for six hours without a break because the store wasshort-staffed. Steinman replied that he was "doing his best" tocall in more employees. Id. ¶ 38. Higgins then told Steinmanthat she was "out of here." She submitted a note to Steinman thatshe was quitting her job. Id. ¶¶ 39, 40. ANALYSIS

(1) Sexual Harassment2

In cases of co-worker sexual harassment, an employer is liableif it "knew or should have known of the charged sexual harassmentand failed to implement prompt and corrective action."3White v. New Hampshire Dep't of Corrections, 221 F.3d 254, 261(1st Cir. 2000) (quoting Blankenship v. Parke Care Ctrs.,Inc., 123 F.3d 868, 872 (6th Cir. 1997)). It is undisputedthat A.J. Wright management did not know about the harassingconduct until Higgins complained to a supervisor. Moreover, A.J.Wright immediately took appropriate corrective action bysuspending the co-worker pending an investigation, banning himfrom the store, and ultimately terminating hisemployment.4 That some of Higgins' co-workers observedthe harassment does not, as Higgins argues, entitle Higgins to"an inference that [the co-worker's] actions were known toeveryone in the store, including supervisors and managers . . ."Opp. Mem. at 2. The summary judgment record contains no evidence that supervisors witnessed or were made aware of theinappropriate conduct before Higgins complained about it.

If what Higgins claims is true, she was sexually harassed by aco-worker. Higgins' grievance, however, is with her harasser, nother employer. There is insufficient evidence to imposerespondeat superior liability on A.J. Wright for sexualharassment. A.J. Wright is therefore entitled to summary judgmenton Higgins' sexual harassment claim.

(2) Retaliation

To prove retaliation, Higgins must show that: (1) she engagedin protected conduct; (2) she experienced an adverse employmentaction; and (3) a causal connection existed between the protectedconduct and the adverse action. E.g., Gu v. Boston PoliceDep't, 312 F.3d 6, 14 (1st Cir. 2002). An adverse employmentaction is one that "materially change[s] the conditions ofplaintiffs' employ." Id. "Material changes include `demotions,disadvantageous transfers or assignments, refusals to promote,unwarranted negative job evaluations, and toleration ofharassment by other employees.'" Id. (quoting Hernandez-Torresv. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir.1998)).

In this case, Higgins complains that "she was `counseled' for anumber of relatively minor infractions of A.J. Wright rules,"Steinman and another employee "walked around the store togetherand stared at her while she working," Steinman "threatened thather hours (part-time) would be reduced," and Steinman "required [her] to put her resignation inwriting."5 Opp. Mem. at 3-4. I conclude that this allegedretaliatory conduct does not amount to an adverse employmentaction. Higgins does not claim that her hours were actuallyreduced, or her hourly wage decreased, or her jobresponsibilities changed after she complained about theharassment. Rather, she complains that she was counseled forviolating the rules, treated with personal animus by one of hersupervisors, and threatened that her hours would be reduced.These allegations, even if proven, are not enough to establish anadverse employment action. Accordingly, A.J. Wright is entitledto summary judgment on Higgins' retaliation claims.

(3) Battery

Maine's Workers' Compensation Act's exclusivity and immunityprovisions bar an employee from pursuing civil actions against anemployer for the employer's torts. E.g., Li v. C.N. BrownCo., 645 A.2d 606, 607-08 (Me. 1994). In Count III, Higginsasserts a claim for "intentional battery," presumably based onthe co-worker's unwelcome advances. Because this claim is basedupon workplace conduct, it is barred by the Workers' CompensationAct.6 (4) Emotional Distress

In Counts V and VI, Higgins asserts claims for intentional andnegligent infliction of emotional distress. To the extent thatthese counts are premised on workplace conduct, they are barredby the Worker's Compensation Act's exclusivity and immunityprovisions. Li v. C.N. Brown Co., 645 A.2d 606, 607-08 (Me.1994). In her opposition memorandum, however, Higgins claims thatA.J. Wright "inflicted emotional distress [upon her] long aftershe ended her employment by barring her from the store, andrefusing to hire her cousin." Opp. Mem. at 6. In fact, there isno record evidence that Higgins was ever "barred from" or askedto leave the A.J. Wright store. That leaves only the claim abouther cousin.

In order to recover for either intentional or negligentinfliction of emotional distress, Higgins must demonstrate thatshe suffered "severe" or "serious" emotional distress as a resultof A.J. Wright's conduct respecting her cousin. See Curtis v.Porter, 2001 ME 158, ¶ 10, 784 A.2d 18, 22; Gammon v.Osteopathic Hosp. of Maine, 534 A.2d 1282, 1285 (Me. 1987).Nowhere in her complaint, her memorandum, or her statement ofmaterial facts, does Higgins allege that she suffered severeemotional distress or describe the distress that she suffered asa result of A.J. Wright's decision not to hire her cousin.Moreover, to recover for intentional infliction of emotionaldistress, Higgins must show that A.J. Wright's conduct was "extreme and outrageous"and "regarded as atrocious [and] utterly intolerable in acivilized community." Curtis, 2001 ME 156 at ¶ 10. Failure tohire a former employee's relative, for whatever reason, simplydoes not rise to the level of extreme and outrageous contemplatedby the caselaw. A.J. Wright is entitled to summary judgment onCounts V and VI of Higgins' complaint.


The undisputed facts show that A.J. Wright took appropriateaction as soon as Higgins complained that she was being harassed.There is therefore no ground for imposing respondeat superiorliability on it for a co-worker's conduct. Higgins' battery claimis based entirely on workplace conduct and is therefore barred bythe exclusivity provision of the Workers' Compensation Act. Tothe extent that the emotional distress claims arise out ofworkplace conduct, they are also barred by the Workers'Compensation Act. To the extent the emotional distress claims arebased upon A.J. Wright's conduct after Higgins quit, there is noevidence that Higgins suffered emotional distress. Accordingly, IGRANT the defendant's motion for summary judgment on allcounts.


1. Not only did Higgins fail to comply with the technicalrequirement of Local Rule 56(e) that each statement "begin withthe designation `Admitted,' `Denied,' or `Qualified,'" but shealso failed to contradict a single one of A.J. Wright'sassertions. For example, A.J. Wright asserted that Higgins wasaware of its sexual harassment policy. Def.'s Statement ofMaterial Fact ("SMF") ¶ 8. Nowhere in her response statement offact did Higgins address, let alone contradict, this assertion.

2. Title VII and the Maine Human Rights Act ("MHRA") areinterpreted using the same analytical framework. See Forrestv. Stinson Seafood Co., 990 F. Supp. 41, 43-44 (D. Me. 1998)(listing Maine cases). The parties do not suggest that the MaineHuman Rights Act claims are subject to a different analysis.

3. In Counts I and II of her complaint, Higgins claims thatA.J. Wright discriminated against her "on the basis of sex" aswell as sexual harassment. To the extent that the complaint canbe construed to allege gender discrimination, A.J. Wright isentitled to summary judgment. Aside from the sexual harassmentallegations, there is no evidence that A.J. Wright treatedHiggins differently because she is a woman.

4. Higgins faults A.J. Wright for failing to keep theco-worker out of the parking lot and therefore failing to takecorrective action. She admits, however, that A.J. Wright did notown the parking lot and that A.J. Wright acted quickly ininvestigating and firing the co-worker. A.J. Wright's reaction toHiggins' complaint was immediate and appropriate under thecircumstances.

5. Higgins also asserts that "local managers at the storerefused to get other employees to assist her." Opp. Mem. at 2.However, the statements of material fact that she cites do notsupport this assertion. In addition, Higgins claims that, aftershe quit, a store manager commented that she should not beallowed to shop at the store and that her cousin, Brian Higgins,was denied employment allegedly because of his relation to her.Opp. Mem. at 3-4; Pl.'s SMF ¶¶ 36, 38. Neither the storemanager's comment nor the store's refusal to hire her cousinaffected Higgins' employment, however. Higgins suffered noadverse employment action.

6. In her complaint, Higgins claims both "intentional battery"(Count III) and "negligent battery" (Count IV). "Certainly theconcept of a negligent battery or a negligent assault is ananomalous one in a vast majority of American jurisdictions. Itseems almost unquestioned law in this country that a formedintention is an essential element of assault and battery and thatmere negligence is insufficient to support such an action." E.J.Spires, Scope of Limitation Statutes Specifically GoverningAssault and Battery, 90 A.L.R.2d 1230, § 11 (1963). See alsoW. Keeton, Prosser and Keeton on Torts, § 9, at 41 (5th ed.1984) ("Mere negligence . . . is not enough for battery.") NoMaine case recognizes the tort of "negligent battery" and Idecline to recognize it now. A.J. Wright is entitled to summaryjudgment on Count IV.

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