PAQUIN v. MBNA MARKETING SYSTEMS

233 F. Supp.2d 58 (2002) | Cited 0 times | D. Maine | November 22, 2002

ORDER

Plaintiff has brought an action against her former employer alleginghostile work environment sexual harassment and retaliation inviolation of federal and state law. Presently before the Court isDefendants' Motion for Summary Judgment (Docket #11). For the reasonsdiscussed below, the Court GRANTS Defendants' Motion for SummaryJudgment.

I. STANDARD OF REVIEW

The Court grants a motion for summary judgment "if the pleadings,depositions, answers to interrogatories, and admissions on file, togetherwith the affidavits, if any, show that there is no genuine issue as toany material fact and that the moving party is entitled to a judgment asa matter of law." Fed.R.Civ.P. 56(c). An issue is genuine for thesepurposes if "the evidence is such that a reasonable jury could return averdict for the nonmoving party." Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248 (1986). A material fact is one that has "the potentialto affect the outcome of the suit under the applicable law."Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993).Facts may be drawn from "the pleadings, depositions, answers tointerrogatories, and admissions on file, together with the affadavits."Fed.R.Civ.P. 56(c). The Court views the record in the light mostfavorable to the nonmoving party, drawing all reasonable inferences inthat party's favor. McCarthy v. Northwest Airlines, Inc., 56 F.3d 313,315 (1st Cir. 1995).

II. BACKGROUND

Plaintiff Karen Paquin ("Paquin") began working at MBNA MarketingSystems, Inc. ("MBNA") on August 3, 1999, as a telemarketer under thesupervision of William Appel ("Appel"). During the time Paquin workedat MBNA, Appel's behavior made Paquin feel uncomfortable. Appel, forexample, approached Paquin, who had previously been employed as apersonal care attendant, and asked if she would perform "personal care" onhim; responded to another representative's comment about eating by saying"I'd eat you"; showed Paquin a picture of a naked man; made references toa customer named "Harry Dick"; and jokingly told Paquin that her husbandhad called and wanted her to come home to watch pornographic movies withhim. (See Pl.'s Statement of Material Facts at Vol. II ("Paquin Dep.")(Docket #15).)

Beginning in October 1999, Paquin reported Appel's behavior to MBNA'spersonnel department on several different occasions. After Paquininitiated her complaints, Paquin says she was turned down for the awardof "Rookie of the Month," excluded from a specialized training session,denied approval for a transfer to MBNA's Belfast office, labeled a"complainer," reprimanded and forced to move to a new seat that"isolated" herfrom others on her team. (See Pl.'s Statement of MaterialFacts at Vol. II ("Paquin Dep.") (Docket #15).)

On May 2, 2000, Paquin submitted her resignation to MBNA's personneldepartment. In response, MBNA offered Paquin the option of workingwith a new supervisor and informed her that she had until May 10, 2000,to accept or decline the offer. According to Paquin, MBNA processed herresignation papers and terminated her employment, even after she properlynotified MBNA's personnel department of her decision to accept theoffer and stay employed with the company. MBNA disputes this fact bysaying that it did not receive notice of Paquin's decision to stayemployed until after the agreed upon deadline had passed.

On November 7, 2000, Paquin filed a charge with the Maine Human RightsCommission ("MHRC"). The MHRC found that there were no reasonablegrounds on which to believe any unlawful discrimination had occurred.

On January 11, 2002, Paquin filed a nine count complaint in thisCourt against MBNA, MBNA America Bank, N.A., and MBNA Corporation(erroneously sued as MBNA America Corporation) (collectively"Defendants"). The complaint alleged the following: unlawfuldiscrimination and retaliation in violation of the Maine Human RightsAct (Counts I and III, respectively); unlawful discrimination andretaliation in violation of Title VII (Count II and IV, respectively);negligent supervision (Count V); negligent retention (Count VI);negligent training (Count VII); punitive damages (Count VIII); andunlawful withholding of wages (Count IX). In a previous order, the Courtgranted Defendants' motion to dismiss Counts V, VI and VII. Presentlybefore the Court is Defendants' motion for summary judgment as to CountsI, II, III, IV and IX. The Court first discusses Plaintiff's sexualharassment counts then moves on to consider Plaintiff's retaliationand unpaid wages counts.

III. DISCUSSION

A. Hostile Work Environment Sexual Harassment

1. Title VII

Title VII of the Civil Rights Act ("Title VII") of 1964,42 U.S.C. § 2000e et seq., makes it unlawful "for an employer . . .to discriminate against any individual with respect to his compensation,terms, conditions, or privileges of employment, because of suchindividual's race, color, religion, sex, or national origin."42 U.S.C. § 2000e-2(a)(1). Sexual harassment is a form of genderdiscrimination actionable under Title VII. Meritor Sav. Bank, FSB v.Vinson, 477 U.S. 57, 66 (1986); Provencher v. CVS Pharmacy, Div. ofMelville Corp., 145 F.3d 5, 13 (1st Cir. 1998).

a. Time Limitation

Pursuant to Title VII's administrative filing requirements, a plaintiffmust file a charge with the Equal Employment Opportunity Commission("EEOC") "within one hundred and eighty days after the alleged unlawfulemployment practice occurred" before filing a Title VII action in thefederal district court. 42 U.S.C. § 2000e-5(e). In "deferralstates" such as Maine, where the state has its own anti-discriminationlaws and agency, that period is extended to 300 days. Id.; Marrero v.Goya of P.R., Inc., 304 F.3d 7, 16 (1st Cir. 2002).

Here, Plaintiff filed her administrative complaint with the MHRC andthe EEOC on November 7, 2000. Thus, Defendants argue Plaintiff canrecover only for events that occurred within the 300 day period afterJanuary 12, 2000. In response, Plaintiff contends the Supreme Court'srecent decision in Nat'l R.R.Passenger Corp. v. Morgan, 122 S.Ct. 2061(2002), allows her to reach back to events that occurred before January12, 2000, because those acts comprise part of the overall hostile workenvironment and relate to events that occurred within the limitationsperiod. In an effort to anchor her untimely allegations, Plaintiffalleges numerous acts that occurred within the timely filing period,including: 1) Appel's favoritism of attractive women; 2) Appel'sinappropriate behavior towards various female employees on his team; 3)Appel's mistreatment of Plaintiff after she complained to MBNA about hisconduct; 4) MBNA's refusal to allow Plaintiff to switch managers; 5)Appel's decision to move Plaintiff to a new seat; 6) MBNA's labeling ofPlaintiff as a "complainer"; and 7) MBNA's casual dismissal ofPlaintiff's complaints.

Morgan, however, does not stand for the proposition that any timelyallegation can properly anchor untimely allegations. Rather, pursuantto Morgan, a plaintiff's untimely allegations may be considered for thepurposes of determining liability only if an act contributing to thehostile environment claim occurs within the filing period. Morgan, 122S.Ct. at 2075 (stating that an employee cannot recover for untimely actsthat have no relation to the timely acts); see also Crowley v. L.L.Bean, Inc., 303 F.3d 387, 395-96 (1st Cir. 2002). Here, none of thealleged anchoring acts, even if timely, constitute instances of harassingconduct sufficient to support a sexual harassment claim. Only thoseallegations that took place before January 12, 2000, can fairly be arguedto contribute to a claim for hostile work environment sexual harassment.As such, Plaintiff's entire claim is time-barred.

b. Prima Facie Case

Even assuming Plaintiff's claim is not time-barred, Plaintiff fails toallege facts severe or pervasive enough to constitute actionablehostile work environment sexual harassment. In order to prove a primafacie case of hostile work environment sexual harassment, Plaintiff mustshow that the harassment was "sufficiently severe or pervasive to alterthe conditions of [her] employment." Conto v. Concord Hosp., Inc.,265 F.3d 79, 82 (1st Cir. 2001) (internal quotations and citationsomitted).

There is no "mathematically precise test" for determining when conductin the workplace moves beyond the "merely offensive" and enters the realmof unlawful discrimination. Harris v. Forklift Sys., Inc., 510 U.S. 17,21-22 (1993). Rather, the question whether the environment isobjectively hostile or abusive must be answered by reference to all thecircumstances, including the "frequency of the discriminatory conduct;its severity; whether it is physically threatening or humiliating, or amere offensive utterance; and whether it unreasonably interferes with anemployee's work performance." Id. at 23; Oncale v. Sundowner OffshoreServ., Inc., 523 U.S. 75, 80 (1998) (stating that the conduct must beextreme to amount to a change in the terms and conditions of employmentso as not to turn Title VII into a "general civility code").

Plaintiff's claim encompasses, at most, five separate incidents ofinappropriate behavior by Appel over a span of approximately four monthsbetween August 1999 and November 1999.1 Theseallegations includeAppel's request that Plaintiff perform "personal care" on him; hiscomment to another representative that he'd "eat" her; Appel's "HarryDick" comment; his dirty movie comment; and the picture of the nakedman. (See Pl.'s Statement of Material Facts at Vol. II ("Paquin Dep.")(Docket #15).) Even construing the evidence in the light most favorableto Plaintiff, such behavior cannot be considered so physicallythreatening or humiliating as to unreasonably interfere with Plaintiff'sjob performance. Compare Black v. Zaring Homes, Inc., 104 F.3d 822,823-24 (6th Cir. 1997) (finding conduct over a four-month periodinsufficiently severe or pervasive where conduct involved, inter alia,repeated sexual jokes; sexual comments made to plaintiff while lookingat her in a sexually suggestive manner; laughing at plaintiff whenshe mentioned the name Dr. Paul Busam (pronounced "bosom"); and tellingplaintiff she was "paid great money for a woman"), with Hall v. GusConstr. Co., 842 F.2d 1010, 1012 (8th Cir. 1988) (sexual harassmentestablished with evidence that female employees were held down so thatother employees could touch their breasts and legs).

Furthermore, while Plaintiff may have felt that Appel's behavior andcomments created an undignified or unpleasant working environment, fiveinstances of inappropriate conduct fall well short of the frequencyrequired to amount to an abusive working environment. See e.g., Marrerov. Goya of P.R., Inc., 304 F.3d 7, 19 (1st Cir. 2002) (finding hostilework environment where harassment was "more or less constant" fromplaintiff's first day of work in April 1995, until she left in November1996); White v. New Hampshire Dep't of Corr., 221 F.3d 254, 260-61 (1stCir. 2000) (finding hostile work environment where, inter alia,"disgusting comments" and conversations occurred "everyday"); Chamberlinv. 101 Realty, Inc., 915 F.2d 777, 783 (1st Cir. 1990) (expressing doubtas to whether five sexual comments made over the course of a four to fiveweek period constitutes harassment severe or pervasive enough to create ahostile work environment).

2. Maine Human Rights Act

The Maine Human Rights Act ("MHRA"), 5 M.R.S.A. § 4551 et seq.(2002), provides that it is unlawful employment discrimination for anemployer to discriminate against an employee on the basis of sex "withrespect to hire, tenure, promotion, transfer, compensation, terms,conditions or privileges of employment." 5 M.R.S.A. § 4572(1)(A)(2002). Maine courts have relied on federal case law surrounding TitleVII for the purpose of construing and applying the provisions of theMHRA. Bowen v. Dep't of Human Servs., 606 A.2d 1051, 1053 (Me. 1992).Accordingly, the Court finds that the discussion above regardingPlaintiff's Title VII sexual harassment claim applies with equal forceto Plaintiff's MHRA claim.

B. Retaliation

1. Title VII

Title VII makes it unlawful for an employer to retaliate against anemployee because they have "made a charge, testified, assisted, orparticipated in any manner in an investigation, proceeding, or hearingunder this subchapter." 42 U.S.C. § 2000e-3(a).

a. Time Limitation

In contrast to hostile environment claims that involve an aggregationof hostile acts extending over a period of time, each discretediscriminatory act of retaliation "starts a new clock for filing chargesalleging that act." Nat'l R.R. Passenger Corp. v. Morgan, 122 S.Ct.2061, 2072 (2002). Thus, discrete acts such as termination, failure topromote, denial of transfer, or refusal to hire "are not actionable iftime barred, even when they are related to acts alleged in timely filedcharges." Id. at 2072. A party must file a charge within 300 days ofthe act's occurrence or lose the ability to recover. Id. at 2071.

Plaintiff alleges a number of discrete acts as part of her retaliationclaim. For instance, Plaintiff alleges: 1) MBNA labeled her as a"complainer"; 2) MBNA casually dismissed her complaints about Appel,thereby forcing her to endure an on-going hostile work environment; 3)MBNA denied Plaintiff the "Rookie of the Month" award; 4) Appel preventedher from participating in a specialized training session; 5) Appel deniedher request to transfer to Belfast; 6) Appel mistreated her in front ofothers after he found out she had complained to MBNA's personneldepartment about him and moved her seat to a more "isolated" location;and 7) MBNA refused to allow her to get reassigned to a new managerbefore terminating her. In light of Morgan, however, only those actsthat occurred on or after January 12, 2000, 300 days before Plaintifffiled her charge, are timely filed. Therefore, Plaintiff's claims thatshe was wrongfully denied the award for "Rookie of the Month" in November1999; excluded from the specialized training session in October 1999; andreprimanded in front of others in October 1999, and early January 2000,are not actionable. See id. (suggesting that denials of awards,exclusions from training, and individual instances of inappropriatebehavior in front of others constitutes discrete discriminatory actsbecause each act can be said to have occurred on a particular day, asopposed to a series of days or years).2 The Court, therefore, onlyreviews

Plaintiff's remaining allegations.3

b. Prima Facie Case

To establish a prima facie case of retaliation in the workplace, aplaintiff must demonstrate that: 1) she engaged in protected conduct underTitle VII; 2) she suffered an adverse employment action; and 3) theadverse action is causally connected to the protected activity. Fennellv. First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996).

In this case, there is no argument that Plaintiff engaged in protectedconduct. Defendants, however, dispute that Plaintiff is able to show thatMBNA engaged inadverse employment actions or that there are causalconnections between the alleged adverse actions and the protectedactivity.

Whether an employment action is "adverse" and, therefore, actionableunder Title VII, is gauged by an objective standard. Blackie v. Maine,75 F.3d 716, 725 (1st Cir. 1996). "Work places are rarely idyllicretreats, and the mere fact that an employee is displeased by anemployer's act or omission does not elevate that act or omission to thelevel of a materially adverse employment action." Id. The First Circuithas noted that adverse employment actions include a variety of types ofconduct, such as "demotions, disadvantageous transfers or assignments,refusals to promote, unwarranted negative job evaluations, and tolerationof harassment by other employees." Hernandez-Torres v.ContrerasIntercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir.1998); Blackie, 75 F.3d at 726 (finding that depriving an employee of aprivilege of employment that he has reason to anticipate constitutes anadverse employment action).

Several types of circumstantial evidence can demonstrate a causal linkbetween the protected act and the adverse act, such as evidence ofdifferential treatment in the workplace, temporal proximity between theprotected act and the adverse act, statistical evidence showing disparatetreatment, and comments by the employer which intimate a retaliatorymindset. Mesnick v. Gen. Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991).Similarly, changes in an employer's treatment of its employee after theprotected conduct can reveal a causal connection. Simas v. FirstCitizens' Fed. Credit Union, 170 F.3d 37, 51 (1st Cir. 1999).

i. Labeling Plaintiff as a "Complainer"

Plaintiff alleges she suffered an adverse employment action becauseMBNA labeled her as a "complainer" in retaliation for filingcomplaints against Appel. Plaintiff's only factual support, however, isthat Heidi Sharpe ("Sharpe"), Appel's Department Manager, considered herto be a complainer. Without more, one person's opinion is not enough toamount to an adverse employment action. Cf., Manning v. Met. Life Ins.Co., Inc., 127 F.3d 686, 693 (8th Cir. 1997) (holding that evidence of"disrespect and ostracization by her supervisors" did not establish anadverse employment action). Furthermore, there is no evidence thatSharpe treated Plaintiff any differently from similarly situatedemployees because of her opinion. Plaintiff, therefore, fails to showthat Sharpe's opinion constituted an adverse employment action.

ii. Casual Dismissal of Plaintiff's Complaints

Plaintiff next alleges she suffered an adverse employment actionbecause MBNA subjected her to an on-going hostile work environment bycasually dismissing her complaints about Appel. Plaintiff's only factualsupport, however, is that Bobbi-Lyn Reed ("Reed"), an MBNA representativewho started working on Appel's team after Plaintiff had already quit,thought that nothing was ever done with regard to Plaintiff's complaintsabout Appel. As stated above, one person's opinion, without more, isinsufficient to support an allegation of adverse employment action.4

iii. Denial of Transfer to Belfast

Plaintiff also alleges she suffered an adverse employment actionbecause Appel denied her request to transfer to MBNA's Belfast office.Specifically, Plaintiff says she talked to Appel about a possible transferto Belfast because she felt that the move would benefit her family.Plaintiff alleges Appel responded by saying she could not go to Belfastwithout manager approval and that he would not provide her with onebecause they did not have a good relationship.

Typically, in order to constitute an adverse employment action, theemployer must either take something of consequence from the employee, or"withhold from the employee an accouterment of the employmentrelationship, say, by failing to follow a customary practice ofconsidering her for promotion after a particular period of service."Blackie, 75 F.3d at 725. The employment action Plaintiff complains ofdoes not fall into either category. Even assuming Appel had aretaliatory motive behind his comment, Plaintiff has not shown that shewas deprived in any way of a benefit or privilege that was "part andparcel" of the employment relationship. Hishon v. King & Spalding,467 U.S. 69, 75 (1984). Nowhere does Plaintiff allege that a permanenttransfer for personal reasons is a common enough practice at MBNA thatan employee can reasonably anticipate obtaining approval once a requestis submitted. As a result, Plaintiff fails to sufficiently allege anadverse employment action.

iv. New Seating Assignment

Plaintiff further alleges she suffered an adverse employment actionbecause Appel assigned her to a new seat before she resigned. Theparties dispute whether this new seating arrangement isolated Plaintifffrom her co-workers. Even assuming the new seating arrangement did, infact, isolate Plaintiff from others, however, not everything that makesan employee unhappy constitutes an actionable adverse action. Smart v.Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). Plaintiff does notallege that her duties changed in any way or that she lost any tangiblebenefits due to the reassignment. As a result, Plaintiff does notsufficiently allege an adverse employment action.

v. Refusal to Re-Assign to a New Manager

Finally, Plaintiff alleges she suffered an adverse employment actionbecause MBNA terminated her employment without allowing her theopportunity to exercise her option of switching to a new manager.

Because Defendants terminated Plaintiff's employment, Plaintiff clearlysuffered an adverse employment action. Roberts v. Roadway Express, Inc.,149 F.3d 1098, 1104 (10th Cir. 1998). In addition to proving shesuffered an adverse employment action, however, Plaintiff must prove theexistence of a causal link between the protected activity and the allegedretaliatory treatment in order to establish a prima case. Fennell v.First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996).

Here, the parties dispute whether Plaintiff properly notified MBNA ofher decision to withdraw her resignation. On the one hand, Plaintiffalleges her husband notified MBNA of Plaintiff's decision to stay withthe company under a new manager. On the other hand, Defendants deny theyever received such notice. Even assuming Defendants received thetelephone call, the Court finds Plaintiff fails to establish a sufficientcausal link between the adverse employment action and the protectedactivity. For example, Plaintiff fails to allege that MBNA treated hersituation differently from other similarsituations or that anyone inMBNA's personnel department made any comments intimating a retaliatorymindset that may have contributed to their decision.

More importantly, Plaintiff fails to allege sufficient temporalproximity between her protected activity and the adverse action. WhilePlaintiff complained in October 1999, MBNA terminated her employment inMay 2000. Without more, a span of approximately seven months is too longto reasonably infer that one event is causally related to the other. Seee.g., Filipovic v. K & R Express Sys., Inc., 176 F.3d 390, 398-99(7th Cir. 1999) (four month span between initial EEOC filing andtermination insufficient to show causal connection); Yartzoff v. Thomas,809 F.2d 1371, 1376 (9th Cir. 1987) (sufficient evidence existed whereadverse actions occurred less than three months after complaint filed,two weeks after charge first investigated, and less than two months afterinvestigation ended). Therefore, Plaintiff fails to establish a primafacie case of retaliation.

c. Constructive Discharge

Finally, Plaintiff claims she suffered a constructive discharge whenshe took a temporary leave of absence in February 2000, and when MBNAterminated her employment in May 2000. A "discharge" under42 U.S.C. § 2000e-3(a) may be constructive as well as a directfiring. Hernandez-Torres v. Intercontinental Trading, Inc., 158 F.3d 43,47 (1st Cir. 1998). To prove a retaliatory constructive discharge, aplaintiff must establish that her work environment was hostile. Id. at 48(citing Smith v. Bath Iron Works Corp., 943 F.2d 164, 166 (1st Cir.1991)).

The mere existence of a hostile work environment, however, is often notenough to support a finding of a constructive discharge. See Landgrafv. USI Film Prods., 968 F.2d 427, 430 (5th Cir. 1992). In fact, aplaintiff must also show that the conditions were "so difficult orunpleasant that a reasonable person in [the plaintiff's] shoes would havefelt compelled to resign." Marrero v. Goya of P.R., Inc., 304 F.3d 7, 28(1st Cir. 2002) (internal quotations and citations omitted); see alsoKeeler v. Putnam Fiduciary Trust Co., 238 F.3d 5, 10 (1st Cir. 2001)(stating that the working conditions must be so unpleasant that stayingon the job while seeking redress would have been intolerable). Thestandard is an objective one; it "cannot be triggered solely by theemployee's subjective beliefs, no matter how sincerely held." Marrero,304 F.3d at 28 (internal quotations and citations omitted).

Plaintiff argues she was forced to leave MBNA on two differentoccasions (February 2000 and May 2000) due to Appel's conduct. Becausea number of other MBNA employees left for the same reason in the past,Plaintiff argues there is at least a fact question as to whether thehostile work environment created by Appel became intolerable. TheCourt does not agree.

First, Plaintiff's short leave of absence in February can hardly besaid to have been a "discharge" in light of the fact that she was stillemployed. See Pedro-Cos v. Contreras, 976 F.2d 83, 85 (1st Cir. 1992)(no constructive discharge where the plaintiff is still employed). Evenassuming Plaintiff's leave of absence could be considered a discharge,Plaintiff's argument still fails.

In order to prove a constructive discharge, a plaintiff must show thatthe work environment triggering the departure was more severe andpervasive than the minimum required to prove a hostile workingenvironment. See Landgraf, 968 F.2d at 430 (internal citationsomitted). Here, Plaintiff took a leave of absence in February 2000,because of the incidents alleged as part of her hostile work environmentsexual harassment claim. As the Court stated above, however, theseincidents fail to even constitute a work environment severe orpervasive enough to be actionable under Title VII. Thus, the workingconditions could not have been so hostile as to force a constructivedischarge.

Plaintiff also fails to prove she was constructively discharged in May2000. Notwithstanding the fact that Defendants terminated Plaintiff'semployment, the record shows that Plaintiff actually wanted to stay atMBNA (i.e., but for Defendants' decision to terminate Plaintiff'semployment, Plaintiff would have continued to work at MBNA). In light ofthese undisputed facts, the working conditions could not have been sohostile such that a reasonable person would have found it intolerable tostay on the job while seeking redress. The Court, therefore, findsPlaintiff was not constructively discharged in May 2000.

2. Maine Human Rights Act

The MHRA prohibits an employer from discriminating against individualsbecause "they have made a charge, testified or assisted in anyinvestigation, proceeding or hearing under this Act." 5 M.R.S.A. §4572(1)(E) (2002). The language and intent of the MHRA generally followsfederal anti-discrimination statutes under Title VII; Maine's SupremeJudicial Court has ruled that federal precedent guides in interpretingthe statute. See Winston v. Maine Technical Coll. Sys. 631 A.2d 70,74-75 (Me. 1993); see also Morrison v. Carleton Woolen Mills, Inc.,108 F.3d 429, 436 n. 3 (1st Cir. 1997) ("The Maine courts have relied onthe federal case law surrounding Title VII for the purpose of construingand applying the provisions of the Maine Human Rights Act.").Accordingly, the Court finds that the discussion above surroundingPlaintiff's Title VII retaliation claim applies with equal force toPlaintiff's MHRA claim.

C. Unpaid Wages

Under Count IX, Plaintiff claims a violation of Maine law regardingpayment of wages alleging that MBNA failed to pay her for all hoursworked. It is not clear whether she seeks to recover under 26 M.R.S.A.§ 626 (1990), which provides a remedy for unpaid wages, or 26M.R.S.A. § 670 (1990) for unpaid minimum wages. In any event, theCourt grants summary judgment on this count because Plaintiff failed tobrief the issue in response to Defendants' motion for summary judgment.

IV. CONCLUSION

For the above stated reasons, the Court hereby GRANTS Defendants'Motion for Summary Judgment on Counts I, II, III, IV and IX (Docket#11). Likewise, Plaintiff's only remaining count, Count VIII forpunitive damages, is also dismissed as it pertains only to damages andcannot stand alone.

SO ORDERED

1. Even assuming Plaintiff's claim is timely filed, the Court findsPlaintiff's claim is limited to incidents that occurred after August1999. Despite Plaintiff's arguments to the contrary, the Court refusesto look at incidents that occurred in 1996, 1997, 1998 and early 1999,considering those incidents occurred before Plaintiff even startedworking at MBNA. Crowley v. L.L. Bean, Inc., 303 F.3d 387, 395 (1stCir. 2002) (finding that a plaintiff must subjectively perceive her workenvironment as hostile in order to establish a prima facie case ofhostile work environment sexual harassment).

2. Defendant argues the "effective date" of Plaintiff's suit forstatute of limitations purposes under the MHRA is November 8, 2001,pursuant to a tolling agreement between Plaintiff and MBNA. (See Def.'sMot. for Summ. J. at 6 (Docket #11).) The Court disagrees. The tollingagreement provides that if Plaintiff files a civil action after November21, 2001, the agreement "will become void and of no effect." (See Decl.of James Erwin at Ex. A (Docket #12).) Because Plaintiff filed heraction in this Court on January 11, 2002, the Court finds the tollingagreement is void. Furthermore, only acts that occurred on or afterJanuary 11, 2000, are timely for purposes of the MHRA, which has a twoyear statute of limitations period. 5 M.R.S.A. § 4613(2)(C) (2002).As such, Plaintiff's claims that she was wrongfully denied the award for"Rookie of the Month" in November 1999, and reprimanded in early January2000, are untimely under both Title VII and the MHRA.

3. In addition to reviewing Plaintiff's timely filed allegations, theCourt reviews those allegations for which the date of occurrence isunclear or unknown.

4. In addition to failing to provide sufficient facts to prove anadverse employment action, Plaintiff fails to accurately portray theevents as they actually occurred. Specifically, Plaintiff's argumentignores that the undisputed facts show that, rather than casually dismissPlaintiff's complaints, MBNA responded to them by conducting aninvestigation in January 2000, that involved interviewing eachrepresentative on Appel's team.

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