AWUGAH v. KEY BANK NATIONAL ASSOCIATION

Filing 35

PROCEDURAL ORDER - Set Deadlines: Plaintiff's filing by 1/25/2013. Defendant's reply due by 2/1/2013. By JUDGE D. BROCK HORNBY. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
SUSAN AWUGAH,
PLAINTIFF
v.
KEY BANK NATIONAL
ASSOCIATION,
DEFENDANT

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NO. 2:12-CV-97-DBH

PROCEDURAL ORDER
In this Maine Whistleblower Protection Act claim, the defendant has
moved for summary judgment.

In her response, the plaintiff seizes on the

defendant’s statement in its moving papers that it is moving for summary
judgment because the plaintiff cannot make her prima facie case. Def.’s Mot.
for Summ. J. at 3 (ECF No. 22). On the causation issue, the plaintiff responds
that she has made the prima facie case on account of the timing of her
termination and that she does not need to show pretext in the prima facie case.
Pl.’s Mem. in Opp’n to Def.’s Mot. for Summ. J. at 16-17 (ECF No. 28). Some of
the cases support the plaintiff’s argument that she need not demonstrate
pretext in the prima facie case. “[W]e cannot ‘consider the employer’s alleged
nondiscriminatory reason for taking an adverse employment action when
analyzing the prima facie case.’” Meléndez v. Autogermana, Inc., 622 F.3d 46,
51 (1st Cir. 2010). Maine’s Law Court, however, has recently clarified the Maine

approach:

“When

evaluating

employment

discrimination

claims

at

the

summary judgment stage, we apply a three-step, burden-shifting analysis to
determine whether (1) the employee has presented prima facie evidence of
discrimination; (2) the employer has presented prima facie evidence of a
legitimate, non-discriminatory reason for the adverse action; and, in response,
(3) the employee has presented prima facie evidence that the employer’s
proffered reason is pretextual or untrue. . . . This analysis addresses the
parties’ burdens of production, not persuasion.” Fuhrmann v. Staples Office
Superstore E., Inc., 2012 WL 6124120, at *3 (Me. Dec. 11, 2012).
In this case, the defendant in fact argued the need to show pretext, Def.’s
Mot. for Summ. J. at 7, and cited cases recognizing that inquiry as belonging to
the third stage of the summary judgment inquiry, id. at 8 (citing Mesnick v.
Gen. Elec. Co., 950 F.2d 816, 822-25 (1st Cir. 1991); DeCaire v. Mukasey, 530
F.3d 1, 19-20 (1st Cir. 2008)). In its reply brief the defendant makes clear that
its summary judgment motion is not limited to the first step of the prima facie
case.

Def.’s Reply in Support of Its Mot. for Summ. J. at 3 (ECF No. 32).

Moreover, Fuhrmann talks about this third stage as involving the presentation
of “prima facie evidence” of pretext or falsity.
I think it is fair, therefore, to treat the defendant as arguing not only that
the plaintiff cannot make her prima facie case at stage one, but also as arguing
that even if she has met that burden, the record shows that the defendant has
articulated a legitimate nondiscriminatory reason for the termination (stage
2

two) and that the plaintiff therefore must show prima facie evidence of pretext
or falsity (stage three) to avoid summary judgment. Because the plaintiff was
perhaps confused by the defendant’s moving summary judgment brief and
because Fuhrmann is so recent, I will allow the plaintiff to make an additional
filing on this issue by January 25, 2013. The defendant may make any further
reply by February 1, 2013.
SO ORDERED.
DATED THIS 13TH DAY OF JANUARY, 2013
/s/D. Brock Hornby
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

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