HAVERLY-JOHNDRO v. BATH & BODY WORKS LLC

Filing 43

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re:denying 24 Motion for Summary Judgment By JUDGE JON D. LEVY. (mjlt)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
PATRICIA HAVERLY-JOHNDRO,
Plaintiff,
v.
BATH & BODY WORKS, LLC,
Defendant.

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) Docket No. 1:13-cv-00108-JDL
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ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Pending before the Court is Bath and Body Works, LLC’s (“BBW”) Motion for
Summary Judgment (ECF No. 24).

After careful consideration, I deny BBW’s

motion.
I. SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56 provides that the Court shall grant
summary judgment if the movant shows “that there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “A ‘genuine’ issue is one that could be resolved in favor of either
party, and a ‘material fact’ is one that has the potential of affecting the outcome of
the case.” Calero-Carezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir. 2004)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986)).

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To demonstrate a genuine issue of material fact, Haverly-Johndro “must
point to concrete, admissible evidence. Mere allegations, or conjecture unsupported
in the record, are insufficient.” Rivera-Marcano v. Normeat Royal Dane Quality,
998 F.2d 34, 37 (1st Cir. 1993) (citations omitted).

“So long as the plaintiff’s

evidence is both cognizable and sufficiently strong to support a verdict in her favor,
the factfinder must be allowed to determine which version of the facts is most
compelling.” Calero-Carezo, 355 F.3d at 19.
The “ground rules for summary judgment leave ‘no room for credibility
determinations, no room for the measured weighing of conflicting evidence such as
the trial process entails, no room for the judge to superimpose his own ideas of
probability and likelihood (no matter how reasonable those ideas may be)’ on the
cold pages of the record.” Rodriguez v. Municipality of San Juan, 659 F.3d 168, 175
(1st Cir. 2011) (quoting Greenburg v. P.R. Mar. Shipping Auth., 835 F.2d 932, 936
(1st Cir. 1987)). The record must be construed in the light most favorable to the
non-movant and all reasonable inferences must be resolved in that party’s favor.
See Sensing v. Outback Steakhouse of Florida, LLC, 575 F.3d 145, 153 (1st Cir.
2009).
II. FACTUAL BACKGROUND
The parties’ submissions make it apparent that there are disputed material
facts concerning nearly every aspect of Plaintiff Patricia Haverly-Johndro’s
(“Haverly-Johndro”) claims. This is evidenced by the following factual recitations,
many of which are derived from Haverly-Johndro’s Statement of Additional Fact,

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that were properly supported with record references, and which are disputed by
BBW.
BBW is a nationwide retailer specializing in personal care products and gift
items.

ECF No. 34-1 at ¶1.

The company operates stores across the country,

including in Maine. Id. at ¶2. Each store is led by a Store Manager who is assisted
by members of a Store Leadership Team comprised of Co-Managers and Sales
Leaders. Id. at ¶¶3, 4. Each Store Manager reports to a District Manager. Id. at
¶5.
Patricia Haverly-Johndro was hired as the Store Manager for BBW’s Bangor,
Maine store on May 10, 2010, after being interviewed by District Manager Colin
Miller. Id. at ¶21. Soon after Haverly-Johndro was hired, she interviewed Ian
Burke and Paula Graham as candidates for a Co-Manager position at the Bangor
store. Id. at ¶¶34, 35. She selected Graham for the position because Graham had
over 20 years of experience compared with Burke’s year and a half of experience.
Id. at ¶123.

Miller had encouraged Haverly-Johndro to hire Burke and was

unhappy when she hired Graham instead. Id. at ¶124.
Miller told Haverly-Johndro that the store’s other Co-Manager, Carlie
Moscone, “needed to go” and that Haverly-Johndro should look for an opportunity to
put her on a performance improvement plan (“PIP”). Id. at ¶130. Haverly-Johndro
followed his instructions, put Moscone on a PIP, and soon thereafter Moscone
resigned. Id. at ¶131. Burke was then hired, id. at ¶ 39; Miller approved a starting
annual salary of $41,500 for Burke. Id. at ¶133, Haverly-Johndro Dep., ECF No.

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29-1 at 3, 9.

The more experienced Graham was hired at an annual salary of

$36,000. ECF No. 34-1 at ¶133.
Haverly-Johndro claims that Miller treated her inappropriately in a number
of ways. She asserts that, after she was hired in May 2010, Miller told others that
“I found my girl.” Id. at ¶115. In June, Miller stated to Haverly-Johndro, “who is
the sexy, attractive new Store Manager in Bangor?” and then gave her a big,
unwanted, hug. Id. at ¶¶46, 127. Miller constantly hugged her and other female
employees, and continued to hug Haverly-Johndro after she told him that she did
not want to be hugged and wanted a handshake instead. Id. at ¶¶54, 128.
Haverly-Johndro contends that Miller favored Burke over female employees
by not permitting Haverly-Johndro to discipline Burke for violating company
policies, while requiring her to discipline female employees for less serious
infractions. Id. at ¶135. On September 21, 2010, Miller told Haverly-Johndro,
regarding Ian Burke, “Ian knows you hired [Graham] as Co-manager over him. Ian
will listen to me because I’m male. Ian will not listen to you because you are a
female.” Id. at ¶142.
In October 2010, Haverly-Johndro was seated at a training session when
Miller came up behind her, put his head on her shoulder and slid his face down onto
her left breast, and whispered something to the effect of “do you need anything, is
everything okay?” Id. at ¶¶58, 146. Around Halloween 2010, Miller saw a bikini on
a mannequin in front of the Hot Topic store and asked Haverly-Johndro, “Are you
going to wear this as your Halloween costume?” Id. at ¶¶47, 148. On or about

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October 28, 2010, Miller told Haverly-Johndro that he “cherish[ed] her.” Id. at
¶¶48, 149.
Haverly-Johndro claims that Miller often leered at her, looking at her up and
down as if he was mentally undressing her. Id. at ¶¶60-62, 150. Further, HaverlyJohndro claims that Miller made numerous comments about how she was dressed.
Id. at ¶151. On one occasion, Miller told Haverly-Johndro that her husband and the
husbands of two other employees all “married up. I could never afford one of you.”
Id. at ¶¶49, 149.
In April 2011, Haverly-Johndro was given a performance evaluation by Miller
that rated her as “does not meet expectations” on her ability to “coach and develop
team members.” Id. at ¶156. Haverly-Johndro challenged the rating because Miller
had prevented her from coaching Burke. Id.
In May 2011, the Company transferred Miller to Minnesota for an
assignment that was to last approximately four months. Id. at ¶157. Lyndsay
Stafford (“Stafford”), the manager of another BBW store, was named the Acting
District Manager. Id. at ¶158. Stafford and Miller had worked together for two
years and Miller described Stafford as a “good friend” with whom he worked closely
and for whom he served as a mentor. Id. at ¶¶159, 160.
After Stafford assumed her new position, Haverly-Johndro learned from
Desinti Bates (“Bates”), the Store Manager of another BBW store, that Stafford was
inquiring about the operations of the Bangor store. Id. at ¶68. On June 7, 2011,
the night before Stafford visited the Bangor store, Haverly-Johndro called the

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Company’s ethics hotline having been told by Bates that she should do so to protect
herself.

Id. at ¶¶69, 164.

Haverly-Johndro reported a number of grievances,

including that (1) Burke was paid more than Graham, id. at ¶74; (2) Miller had told
her numerous times that Burke will listen to him because he is a male, but will not
listen to her because she is a female, id. at ¶76; (3) male employees were receiving
preferential treatment over the females and that she was told to give female
employees performance improvement plans for less significant performance issues,
id. at ¶167; and (4) Miller had put his head on her shoulder and slid his face onto
her left breast during a training session. Id. at ¶166. BBW’s HR Manager Kasey
Elliott (“Elliott”) received a copy of the written report that resulted from HaverlyJohndro’s call to the company’s ethics hotline, id. at ¶77, and subsequently had a
lengthy phone conversation with Haverly-Johndro about it on June 13, 2011. Id. at
¶¶80, 169.
Also in June, Haverly-Johndro sought Bates’ assistance regarding how to
code the hours for the newly-promoted Bangor BBW store Sales Leader Casey
Snowman (“Snowman”). Id. at ¶¶82, 170. When Haverly-Johndro was first hired,
Bates instructed her how to “re-code” employee hours from “productive time”
involving sales to “onboarding time” involving training or meetings.1 Id. at ¶¶117,
118.

Based on the direction she received from Bates, Haverly-Johndro recoded

BBW objects to the factual allegations regarding Bates’ instruction to Haverly-Johndro as being
hearsay. Because the summary judgment record supports the view that Bates’ instructions to
Haverly-Johndro on how to code employee hours related to a matter within the scope of Bates’ duties
as an employee, the instructions are not hearsay. See Fed. R. Evid. 801(d)(2)(D); see also Union Mut.
Life Ins. Co. v. Chrysler Corp., 793 F.2d 1, 8 (1st Cir. 1986) (noting statements by a non-managerial
employee are encompassed by Fed. R. Evid. 801(d)(2)(D) when made on matters within the scope of
her agency.).
1

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Snowman’s and Graham’s hours regarding two work days in June. Id. at ¶¶171,
172.
Stafford visited the Bangor BBW store on June 16, 2011, and found timesheet
reports reflecting that Haverly-Johndro had re-coded employee hours. Id. at ¶91.
Stafford met with Haverly-Johndro and concluded that Haverly-Johndro had
violated BBW policy by re-coding the hours and was untruthful by claiming that her
actions were consistent with what she had been taught, was something she had
done every week, and was the same practice as employed by other stores. Id. at
¶¶178-181.

After first conferring with Elliott by phone, Stafford terminated

Haverly-Johndro’s employment. Id. at ¶182; Stafford Dep., ECF No. 25-15 at 12.
Stafford testified that BBW has three levels of discipline for different types of
infractions, beginning with a conversation, followed by written documentation,
followed by termination. Id. at 8. Haverly-Johndro protested her firing and told
Stafford that she assumed that Stafford was aware of her call to the Ethics Hotline.
ECF No. 34-1 at ¶¶183, 184. Stafford indicated that she was not.2 Id. at ¶184.
III. DISCUSSION
Haverly-Johndro alleges that BBW discriminated against her on the basis of
sex in violation of the Maine Human Rights Act by subjecting her to a hostile

Haverly-Johndro asserts that she asked generally whether Stafford knew of her call to the ethics
hotline. See ECF No. 29-1 (“[I] made the statement, and I presented it in a question format, that, I
assume that you – you are aware of my call to the ethics hotline? Lyndsay Stafford’s response was,
no, I’m not. And I said, really? Okay.”) BBW disputes this point, citing Stafford’s deposition
testimony wherein she claims Haverly-Johndro made a more specific assertion. See ECF No. 25-15 at
12 (“And when walking out she turned around and said to me, I know you know that I called ethics
and you know what I said. And I said, no, I don’t actually, and she walked out.”). At her deposition,
Stafford confirmed that Elliott told her Haverly-Johndro had filed an ethics hotline complaint, but
denied knowing the substance of the complaint. See Stafford Dep., ECF No. 25-15 at 11.
2

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workplace (Count I).

She also claims that BBW retaliated against her for

complaining of sexual harassment in violation of the Maine Human Rights Act and
the Maine Whistleblower’s Protection Act (Count II), and she asserts an unpaid
wages claim pursuant to 26 M.R.S. § 626 (2013). Haverly-Johndro’s claims arise
primarily from the actions and comments of her immediate supervisor, District
Manager Colin Miller (“Miller”). BBW’s Motion for Summary Judgment challenges
the legal sufficiency of Haverly-Johndro’s claims, arguing that she has failed to
prove a prima facie case of hostile work environment, unlawful retaliation, or her
unpaid wages claim.

Even if her underlying claims survive, BBW argues that

Haverly-Johndro’s claims for punitive damages must be dismissed.
1. Sexual Harassment Claim
The Maine Human Rights Act (“MHRA”), 5 M.R.S. §§ 4551-4634 (2013),
provides that it is unlawful employment discrimination for an employer to
discriminate against an employee on the basis of sex “with respect to hire, tenure,
promotion, transfer, compensation, terms, conditions or privileges of employment.”
5 M.R.S. § 4572(1)(A) (2013). The Law Court has cited the following elements for
analyzing a sex discrimination claim based on a hostile work environment brought
pursuant to the MHRA. The plaintiff must demonstrate:
(1) that she (or he) is a member of a protected class; (2) that she 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

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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, 903. While the conduct may
be both severe and pervasive, Haverly-Johndro need only prove one of these
qualities in order to prevail. See Nadeau v. Rainbow Rugs, Inc., 675 A.2d 973, 976
(Me. 1996) (“The severity of the conduct may vary inversely with its pervasiveness.
Whether the conduct is so severe as to cause the environment to become hostile or
abusive can be determined only by considering all the circumstances, and this
determination is left to the trier of fact.”).
There is no dispute that the actions Haverly-Johndro complains of were
subjectively offensive to her. Determining whether conduct is objectively hostile or
abusive is not a mathematically precise test but
must be answered by reference to 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. Subject to some policing at the outer bounds, it is for the
jury to weigh those factors and decide whether the harassment was of
a kind or to a degree that a reasonable person would have felt that it
affected the conditions of her employment.
Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 18-19 (1st Cir. 2002) (citations and
internal quotation marks omitted).

The First Circuit has clarified that while

“behavior like fondling, come-ons, and lewd remarks is often the stuff of hostile
environment claims . . . no particular types of behavior are essential to a hostile
environment claim.” Billings v. Town of Grafton, 515 F.3d 39, 48 (1st Cir. 2008)
(internal citations omitted). Previous cases in which the First Circuit concluded

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that a reasonable juror could find that the workplace was objectively hostile “do not
establish a baseline that subsequent plaintiffs must reach in order to prevail.” Id. at
49 (internal citation omitted).
BBW’s motion primarily attacks the third, fourth, and fifth elements of the
hostile work environment test. BBW disputes whether and to what extent Miller’s
remarks and conduct actually occurred, but argues that in any event, the acts do
not rise to the level of actionable sexual harassment. Even if Haverly-Johndro’s
sexual harassment claim survives, BBW argues the record does not contain
evidence of actual malice and her punitive damages claim should be dismissed.
Haverly-Johndro responds that BBW takes an unfairly selective view of the
evidence and urges the Court to consider the totality of the alleged harassment.
The various incidents testified to by Haverly-Johndro portray a situation
where her position as Store Manager was negatively affected because of her status
as a woman, and that Miller’s alleged conduct was subjectively and objectively
hostile and abusive. For instance, Haverly-Johndro asserts that Miller asked her
“who is the sexy, attractive new Store Manager in Bangor?” ECF No. 34-1 at ¶46;
asked her whether she was going to wear a bikini as her Halloween costume, id. at
¶¶47, 148; made numerous other comments about how she was dressed, id. at ¶151;
told her that he “cherish[ed] her” id. at ¶¶48, 149; and would frequently leer at her
up and down as if he was mentally undressing her. Id. at ¶¶60-62, 150.
In addition to Miller’s alleged sexualized references to her appearance and
clothing, Haverly-Johndro asserts that he constantly hugged her and other female

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employees, even after she objected and asked for a handshake instead, id. at ¶¶54,
128, and that on one occasion Miller put his head on her shoulder, slid his face down
onto her left breast, and whispered to her. Id. at ¶¶58, 146. Additionally, HaverlyJohndro asserts that Miller interfered with her supervisory authority by not
permitting her to discipline Burke for violating company policies, while requiring
that she discipline female employees for less serious violations. Id. at ¶135.
Taken together, such sexual comments, unwanted physical touching, and
interference with Haverly-Johndro’s work performance could lead a reasonable jury
to find the existence of a pervasive hostile work environment. See O’Rourke v. City
of Providence, 235 F.3d 713, 729 (1st Cir. 2001) (“Evidence of sexual remarks,
innuendoes, ridicule, and intimidation may be sufficient to support a jury verdict for
a hostile work environment.”); but cf. Marrero, 304 F.3d at 19 (“The workplace is not
a cocoon, and those who labor in it are expected to have reasonably thick skins.”).
Determining the severity or pervasiveness of the alleged pattern of conduct involves
questions that inevitably turn on credibility determinations and the weighing of
disputed testimony. Applying the Watt standard to the largely disputed facts, I
conclude that summary judgment is not in order.
2. Retaliation Claim
Under the Maine Whistleblowers’ Protection Act (“MWPA”), “no employer may
discharge . . . or otherwise discriminate against an employee . . . because[] the
employee, acting in good faith, . . . reports orally or in writing to the employer or a
public body what the employee has reasonable cause to believe is a violation of a

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law.” 26 M.R.S. § 833(1)(A) (2013).3 To demonstrate a prima facie case of unlawful
retaliation in violation of the MHRA and the MWPA, 26 M.R.S. §§ 831-840 (2013),
Haverly-Johndro must demonstrate:
[T]hat she engaged in statutorily protected activity; her employer
made an employment decision that adversely affected her; and that
there was a causal link between the protected activity and the adverse
employment action.
Further, if the adverse employment action
happens in close proximity to the protected conduct, the burden shifts
to the employer to produce some probative evidence to demonstrate a
nondiscriminatory reason for the adverse employment action.
Watt, 2009 ME 47, ¶33, 969 A.2d at 906. (Citations omitted). If BBW articulates a
legitimate reason for the adverse employment action, “the burden remains with
[Haverly-Johndro] to persuade the fact-finder that there was, in fact, a causal
connection between the protected activity and the adverse employment action.” Id.
at ¶47.
BBW argues that neither Stafford nor Elliott knew of or had reason to know
that Haverly-Johndro had engaged in any protected activity. BBW asserts that
even if she could prove a prima facie case of retaliation, it has articulated a
legitimate, non-discriminatory reason for terminating Haverly-Johndro – namely,
she falsified employee time records. Thus, despite the close temporal proximity
between her call to the Ethics Hotline and her termination, BBW asserts that
Haverly-Johndro cannot show that the stated reason for her termination was
pretextual.

Although the MWPA itself provides no private right of action, complainants may, after
appropriate administrative process, file a civil action under the MHRA. See Schlear v. Fiber
Materials, Inc., 574 A.2d 876, 878-79 (Me. 1990).
3

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Viewing the facts in the light most favorable to Haverly-Johndro, a jury could
reasonably conclude that her call to the Ethics Hotline ten days before she was fired
was statutorily-protected activity. Contrary to BBW’s argument, the fact that the
written record of the call does not quote her as having used the words “sex
discrimination” or “sexual harassment” is not determinative of whether the call
constituted a protected activity.

The written record of the phone call reflects that

Haverly-Johndro reported Miller’s statement that “Burke will listen to him because
he is a male, but will not listen to HAVERLY-JOHNDRO because she is a female[;]”
ECF No. 25-7 at 1; the pay disparity between the more experienced female comanager hired by Haverly-Johndro and Burke; and she feared retaliation and that
“the situation has become intolerable.” Id. at 2. Haverly-Johndro asserts that she
specifically informed the person who received the call that male employees were
receiving preferential treatment over female employees. ECF No. 34-1 at ¶¶165,
167.
On these facts, a jury could conclude that Haverly-Johndro made “an oral
report of what the employee has reasonable cause to believe is a violation of a law or
rule adopted under the laws of [Maine]” and was protected activity for purposes of
the Maine Human Rights Act. 26 M.R.S. § 833(1)(A) (2013). In addition, based on
the close temporal proximity between her protected conduct and the adverse
employment action, a reasonable jury might conclude that Haverly-Johndro’s report
to the Ethics Hotline was the primary motivation for the termination of her
employment.

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BBW vigorously disputes any causal connection between the call and
Haverly-Johndro’s

termination

ten

days

later,

emphasizing

that

Stafford

terminated Haverly-Johndro for violating BBW’s policy governing the coding of
employee hours. BBW also asserts that Stafford was only aware of the existence of
the Ethics Hotline report at the time she terminated Haverly-Johndro, but had not
received any other information regarding the report.
Notwithstanding BBW’s position, Haverly-Johndro has produced evidence
that could establish that: she re-coded the hours in the manner she had been
instructed; ECF No. 34-1 at ¶117; she believed that she was following the approach
utilized at every store; id. at ¶121; the re-coded hours resulted in no adverse
financial consequences for BBW; id. at ¶189; and she never received a written
warning or other progressive discipline before being fired for this single violation of
policy. Id. at ¶188.4 Whether BBW followed a progressive disciplinary policy that it
deviated from is a dispute of material fact which will factor into Haverly-Johndro’s
claim of pretext. See Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 143
(1st Cir. 2012) (“Evidence that standard procedure was not followed is directly
relevant to [plaintiff’s] burden of demonstrating pretext.”).
Moreover, Haverly-Johndro produced evidence that Elliott told her that
Stafford knew about her call to the ethics hotline at the time Stafford met with her,
although Stafford denied knowing of the call. ECF No. 34-1 at ¶185. In addition,
Stafford’s testimony regarding BBW’s progressive disciplinary policy, see ECF No. 25-15 at 8,
seemingly contradicts the guide and code of conduct BBW adhered to. See ECF No. 25-3 at 5. (“All
violations of our Code or company policies – no matter how trivial they may seem at the time – are
harmful to the interests of the company and will be treated accordingly. Associates who violate the
Code or other company policy are subject to disciplinary action up to and including termination of
employment.”)
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Elliott, who had previously had a lengthy phone conversation with Haverly-Johndro
concerning the Ethics Hotline report, advised Stafford to terminate HaverlyJohndro’s employment minutes before Stafford terminated Haverly-Johndro. Id. at
¶¶169, 190; Stafford Dep., ECF No. 25-15 at 43. Combined with the aforementioned
circumstantial evidence, this evidence could support a jury determination that
BBW’s

stated

reason

for

Haverly-Johndro’s

termination

was

pretextual.

Accordingly, summary judgment is denied as to Haverly-Johndro’s retaliation claim.
3. Punitive Damages
Haverly-Johndro seeks punitive damages for both the sex discrimination and
whistleblowing claims. The Maine Human Rights Act provides that a complaining
party may recover punitive damages if she demonstrates that the defendant
engaged in a discriminatory practice “with malice or with reckless indifference to
the rights of an aggrieved individual protected by this Act.”
4613(2)(B)(8)(c) (2013).

5 M.R.S. §

Malice or implied malice must be proven by clear and

convincing evidence. See Batchelder v. Realty Resources Hospitality, LLC, 2007 ME
17, ¶ 27, 914 A.2d 1116, 1124.
BBW argues that that record contains no evidence of actual or implied
malice, asserting that Haverly-Johndro has not alleged that any statements
evincing ill will were made concerning her Ethics Hotline call or termination. ECF
No. 24-1 at 20. Further, BBW claims that Haverly-Johndro’s sexual harassment
allegations are a series of off-hand, trite statements that are obviously not
malicious. Id. Haverly-Johndro posits that a jury could find actual malice based on

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the temporal proximity between her protected activity and termination, coupled
with Stafford and Elliott’s discussion of that activity prior to making the
termination decision. ECF No. 29 at 18. Alternatively, Haverly-Johndro argues
that BBW acted with reckless disregard to her rights by allowing her to be sexually
harassed and by terminating her in retaliation for her complaints.
As indicated above, I conclude that a jury must determine whether BBW’s
explanation for Haverly-Johndro’s termination was pretextual. Should a jury find
that BBW’s termination of Haverly-Johndro’s employment was pretextual it could
conclude that, in combination with all of the other relevant circumstances, there is
clear and convincing evidence that BBW acted with malice or reckless indifference.
Accordingly, summary judgment is denied as to this claim.
4. Unpaid Wage Claim
Maine’s wage payment statute provides a cause of action for former
employees to seek payment of unpaid wages from their employers upon severance of
the employment relationship. See 26 M.R.S. § 626 (2013).

Haverly-Johndro’s

unpaid wage claim relates to one day of vacation that she claims she was entitled to
be paid for upon her termination from employment. The summary judgment record
reflects a factual dispute as to whether Miller had previously agreed that HaverlyJohndro would be entitled to carry over eight hours of unused vacation time from
2010 to 2011. See ECF No. 34-1 at ¶¶194, 196. Accordingly, I cannot resolve the
question of whether BBW should not have charged against Haverly-Johndro’s 2011
vacation time the 8 hours of vacation time she used in March 2011.

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IV. CONCLUSION
For the foregoing reasons, BBW’s Motion for Summary Judgment is DENIED.
SO ORDERED.
DATED THIS 30th DAY OF JUNE, 2014

__/s/ Jon D. Levy_____________________
JON D. LEVY
UNITED STATES DISTRICT JUDGE

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