FAIRWEATHER v. FRIENDLY'S ICE CREAM LLC

Filing 49

ORDER denying 29 Defendant's Motion for Summary Judgment. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
SUSAN FAIRWEATHER,
Plaintiff,
v.
FRIENDLY’S ICE CREAM, LLC,
Defendant.

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2:13-cv-00111-JAW

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Susan Fairweather brought this lawsuit under the Maine Human Rights Act,
alleging that Friendly’s Ice Cream, LLC (Friendly’s), her employer, wrongfully
terminated her because of her age.

Friendly’s moved for summary judgment.

Viewing the evidence as a whole in the light most favorable to Ms. Fairweather, the
Court concludes she has raised genuine issues of material fact that must be resolved
by a jury and therefore denies Friendly’s Motion for Summary Judgment.
I.

LEGAL STANDARD
Ms. Fairweather’s claim of age discrimination sounds under the Maine Human

Rights Act, 5 M.R.S. §§ 4551 et seq. (MHRA). Notice of Removal Attach. 1 Pl.’s Compl.
for Age Discrimination, at ¶ 22 (ECF No. 1). Maine Courts interpret the MHRA by
“apply[ing] the burden-shifting analysis first described in McDonnell Douglas [Corp.
v. Green].” Cookson v. Brewer Sch. Dep’t, 2009 ME 57, ¶ 14, 974 A.2d 276 (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973)).

Although Maine statutory law supplies Ms. Fairweather’s substantive right to
be free from age discrimination and Maine caselaw determines the analytical
framework, this Court applies the summary judgment standards of the Federal Rules
of Civil Procedure and federal decisional law. See Hanna v. Plumer, 380 U.S. 460,
471-72 (1965). Under these federal standards, summary judgment is appropriate
when “the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). For
summary judgment purposes, “genuine” means that “a reasonable jury could resolve
the point in favor of the nonmoving party,” and a “material fact” is one whose
“existence or nonexistence has the potential to change the outcome of the suit.”
Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd’s of London, 637 F.3d 53, 56
(1st Cir. 2011) (internal quotations omitted). Once the moving party has made this
preliminary showing, the nonmoving party must “produce specific facts, in suitable
evidentiary form, to establish the presence of a trialworthy issue.” Triangle Trading
Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (internal quotations and
alterations omitted); see also FED. R. CIV. P. 56(e).
Although the Court “view[s] the evidence in the light most favorable to the
nonmovant, ‘as to any essential factual element of its claim on which the nonmovant
would bear the burden of proof at trial, its failure to come forward with sufficient
evidence to generate a trialworthy issue warrants summary judgment to the moving
party.’”

In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (internal alterations and

quotations omitted).

“Even in employment discrimination cases where elusive

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concepts such as motive or intent are at issue, summary judgment is appropriate if
the non-moving party rests merely upon conclusory allegations, improbable
inferences, and unsupported speculation.” Benoit v. Technical Mfg. Corp., 331 F.3d
166, 173 (1st Cir. 2003) (internal quotations omitted).
II.

FACTS
A.

Procedural Posture

Friendly’s moved for summary judgment on February 14, 2014. Def. Friendly’s
Ice Cream, LLC’s Mot. for Summ. J. (ECF No. 29) (Def.’s Mot.). Friendly’s filed with
its motion a statement of material facts. Statement of Material Facts in Support of
Def. Friendly’s Ice Cream, LLC’s Mot. for Summ. J. (ECF No. 30) (DSMF). The parties
also agreed to a small number of stipulations pursuant to District of Maine Local Rule
56(b). Stips. Pursuant to LR 56(b) (ECF No. 31) (Stips.).
Ms. Fairweather opposed Friendly’s motion on March 20, 2014. Pl.’s Opp’n to
Def.’s Mot. for Summ. J. (ECF No. 34) (Pl.’s Opp’n). Ms. Fairweather also filed a reply
statement to Friendly’s statement of material facts, Pl.’s Resp. to Def.’s Statement of
Material Facts (ECF No. 35) (PRDSMF), and her own statement of additional
material facts. Pl.’s Statement of Material Facts (ECF No. 36) (PSAMF). Guy D.
Loranger, counsel for Ms. Fairweather, filed an affidavit in support of her opposition.
Aff. of Guy D. Loranger (ECF No. 37) (Loranger Aff.) Friendly’s replied to Ms.
Fairweather’s opposition on March 31, 2014, Def. Friendly’s Ice Cream, LLC’s Reply
to Pl.’s Opp’n to Mot. for Summ. J. (ECF No. 42) (Def.’s Reply), and also replied to her
statement of additional material facts. Def.’s Reply to Pl.’s Statement of Material
Facts (ECF No. 43) (DRPSAMF).
3

B.

Summary Judgment Facts
1.

Ms. Fairweather’s
Friendly’s

Early

Employment

History

with

Friendly’s was founded in 1935 in Springfield, Massachusetts. Stips. ¶ 1.
From 1947 through 2011, Friendly Ice Cream Corporation operated the Friendly’s
system of restaurants. Id. ¶ 2.
Ms. Fairweather was born in 1957. DSMF ¶ 8; PRDSMF ¶ 8. Friendly Ice
Cream Corporation hired her on or about August 1, 1988 as a server at the Portland,
Maine Friendly’s restaurant. Stips. ¶ 6. Friendly’s employees usually referred to this
restaurant as the “Westgate” Friendly’s. Id. Cathy Dipietrantonio was born in 1958.
DSMF ¶ 10; PRDSMF ¶ 10.

Friendly Ice Cream Corporation hired Ms.

Dipietrantonio or about November 2, 1993 as a server at the Westgate Friendly’s.
Stips. ¶ 7.
Ms. Fairweather filled many roles, covered shifts, and would work late when
others called out. PSAMF ¶ 1; DRPSAMF ¶ 1.1 In the opinion of her daughter

Ms. Fairweather’s paragraph 1 states that “[Ms.] Fairweather did a lot for Friendly’s – she
filled many roles, covered shifts, would work late when others called out and put her life into
Friendlys.” PSAMF ¶ 1 (citing PSAMF Attach. 5 Dep. of Melissa Cressey, at 22:1-25 (ECF No. 37)
(Cressey Dep.)). Friendly’s objects that this assertion is supported only by hearsay, in the form of the
deposition testimony of Ms. Fairweather’s daughter Melissa Cressey. DRPSAMF ¶ 1. This is
incorrect. First, the statement reflects at least in part Ms. Cressey’s direct observations of her mother
from the time when Ms. Cressey was also a server at Westgate Friendly’s. See DRPSAMF Attach. 2
Dep. of Melissa Cressey, at 13:16-19 (ECF No. 43) (Cressey Dep. 2); Cressey Dep. at 20:9-12 (ECF No.
37) (Cressey Dep.). Also, these observations are consistent with what a daughter would know about
her mother’s work habits. The Court overrules the hearsay objection.
Friendly’s also objects to the foundation for the statement, but the Court also overrules this
objection for the same reasons; the statement is based on Ms. Cressey’s direct personal observations.
However, portions of the statement assert subjective and conclusory assertions as “fact,” and the Court
has reworded the statement to show that it reflects Ms. Cressey’s personal opinion. The Court deems
the modified assertion admitted under Local Rule 56(f), (g).
1

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Melissa Cressey, who also worked for a time at Friendly’s, Ms. Fairweather “did a lot
for Friendly’s” and “put her life into Friendly’s.” PSAMF ¶ 1; DRPSAMF ¶ 1.
2.

Ms. Fairweather’s Co-Workers and Managers During Her
Employment in the South Portland Friendly’s

When Friendly Ice Cream Corporation closed the Westgate restaurant in or
about December 2005, Stips. ¶ 8, both Ms. Fairweather and Ms. Dipietrantonio were
transferred to the South Portland, Maine Friendly’s restaurant.

Id. ¶ 9.

Ms.

Fairweather exclusively worked breakfast and lunch shifts and did not work the
evening shift. DSMF ¶ 78; PRSDMF ¶ 78. While she was at the South Portland
restaurant, the “regular” servers with whom she frequently worked the breakfast
shift were Ms. Dipietrantonio and Susan Kallio. DSMF ¶ 79; PRDSMF ¶ 79. Ms.
Kallio was born in 1956 and hired by Friendly’s in 1989. DSMF ¶ 80; PRDSMF ¶ 80.
Shortly after Ms. Fairweather transferred to South Portland, Bonnie Coutts
became the Training General Manager for the South Portland Friendly’s. Stips. ¶
10. Ms. Coutts was born in 1964.2 DSMF ¶ 14; PRDSMF ¶ 14. In addition to the
typical duties of a general manager, Ms. Coutts would also train employees to
eventually become general managers at Friendly’s. DSMF ¶ 13; PRDSMF ¶ 13.
Except for approximately three months beginning in or around October 2010, Ms.
Coutts was the Training General Manager for the South Portland restaurant during
the remainder of Ms. Fairweather’s employment with Friendly’s. Stips. ¶ 11. In this

The parties both spell Ms. Coutts’ first name “Bonny” and “Bonnie” at different times. Ms.
Coutts’ deposition transcripts use the name “Bonny” in their title, so the Court refers to them using
that spelling. The Court quotes deposition transcripts and other record materials using whatever
spelling of Ms. Coutts’ first name appears in the source material.
2

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capacity, and for the time both women were employed at the South Portland
Friendly’s, Ms. Coutts was Ms. Fairweather’s supervisor. PSAMF ¶ 2; DRPSAMF ¶
2.3 Ms. Fairweather describes as decent her relationship with Ms. Coutts, during the
first approximately four and a half years that Ms. Fairweather worked for Ms. Coutts.
DSMF ¶ 17; PRDSMF ¶ 17.
At the time of Ms. Fairweather’s termination on May 14, 2012, Ms. Coutts
reported to her District Manager, Patricia Newell. Stips. ¶ 12. Ms. Newell was born
in 1961. DSMF ¶ 15; PRDSMF ¶ 15. At that time, Ms. Newell reported to her
Regional Director, Todd Mosher. Stips. ¶ 13.
For approximately three months, beginning in or around October 2010, Ms.
Coutts was transferred to the Friendly’s restaurant in Waterville, Maine. DSMF ¶
18; PRDSMF ¶ 18. During this time, one D.K. Green4 was the General Manager of
the South Portland restaurant. DSMF ¶ 19; PRDSMF ¶ 19. Ms. Fairweather does
not believe that Mr. Green treated her differently than he otherwise would have
because of her age. DSMF ¶ 20; PRDSMF ¶ 20.
Ms. Coutts testified that “over the years” Ms. Dipietrantonio complained “a
couple” of times about how Ms. Fairweather talked to and treated her; however, Ms.
Coutts also testified that she did not document these incidents because there was

Ms. Fairweather’s paragraph 2 states that Ms. Coutts “supervised [Ms.] Fairweather from the
time she became the manager of the South Portland store in 2005 or 2006 until her [presumably Ms.
Fairweather’s] termination.” PSAMF ¶ 2. The Court has included those portions of this statement
that are not otherwise covered by Friendly’s statements of fact.
4
The record does not reveal what the initials D.K. stand for.
3

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“nothing to document.”

PSAMF ¶ 121; DRPSAMF ¶ 121.5 Ms. Coutts did not

personally witness Ms. Fairweather having issues with co-workers, but she received
a number of reports of such incidents that she was unable to corroborate. PSAMF ¶
122; DRPSAMF ¶ 122.6
3.

Friendly’s Procedures for Tracking Customer Complaints

The guest communications and complaints to Friendly’s are tracked by a
system formerly called the “WOW system,” now the “Guest Track System.” PSAMF
¶ 10; DRPSAMF ¶ 10.

The restaurant receives copies of the customer

communications and complaints. PSAMF ¶ 11; DRPSAMF ¶ 11. Ms. Coutts and the
managers at the restaurant check the customer complaints every day. PSAMF ¶ 12;
DRPSAMF ¶ 12. The District Manager will contact guests who want to be contacted,
but guests are not contacted unless they state they want to be contacted. PSAMF ¶
13; DRPSAMF ¶ 13. To appease a complaining customer, Ms. Newell will generally
give him or her a $15.00 gift certificate. PSAMF ¶ 29; DRPSAMF ¶ 29.

Ms. Fairweather’s paragraph 121 claims that “[Ms.] Coutts testified that over the years she
had seen only a couple of issues between [Ms.] Dipietrantonio and [Ms.] Fairweather, but the incidents
were not even worth documenting.” PSAMF ¶ 121 (citing DSMF Attach. 11 Dep. of Bonny S. Coutts
at 35:23-36:5) (ECF No. 30) (Coutts Dep.)). Friendly’s interposes a qualified response that the record
does not support that “the incidents were not even worth documenting.” DRPSAMF ¶ 121 (citing
Coutts Dep. at 35:14-36:5). Friendly’s point is a technical one. Ms. Coutts testified that she did not
document the incidents because “[t]here was nothing to document.” Id. 36:1-5. Friendly’s maintains
that the incidents may have been worth documenting. DRPSAMF ¶ 121. The Court overrules
Friendly’s quibble. Plaintiff’s paragraph 121 clearly states that Ms. Coutts testified that she did not
document these incidents because there was nothing to document. Paragraph 121 and the supporting
deposition testimony establish that Ms. Coutts was expressing her view as Friendly’s General
Manager of the South Portland store; Friendly’s may not disown its own manager’s testimony.
6
Ms. Fairweather’s paragraph 122 claims that “[Ms.] Coutts admits she never saw [Ms.]
Fairweather have any issues with any co-workers.” PSAMF ¶ 122 (citing Coutts Dep. at 37:4-6).
Friendly’s interposes a qualified response that Ms. Coutts received reports of incidents with Ms.
Fairweather that she could not corroborate. DRPSAMF ¶ 122 (citing Coutts Dep. at 36:13-37:15). The
record supports Friendly’s qualification, and omitting it would render paragraph 122 misleading. The
Court credits the qualification.
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Guest complaints result in some kind of documentation to the employee’s file.
PSAMF ¶ 14; DRPSAMF ¶ 14. The documentation involves speaking to the server to
coach him or her on how to handle the situation. PSAMF ¶ 15; DRPSAMF ¶ 15.
Friendly’s also tracks customer complaints through the Service Management
Group (“SMG”). PSAMF ¶ 16; DRPSAMF 16. Ms. Newell receives notice of the SMG’s
service results daily by logging in to a website. PSAMF ¶ 17; DRPSAMF ¶ 17. For
the nine stores she supervises, Ms. Newell receives a customer complaint, on average,
once a week. PSAMF ¶ 18; DRPSAMF ¶ 18.7 Negative comments from customers,
including complaints about servers being rude, are sometimes posted with the names
deleted. PSAMF ¶ 19; DRPSAMF ¶ 19.8 When the complaints arise about a food
server being rude, Ms. Coutts will speak to the server in a “one-on-one.” PSAMF ¶
20; DRPSAMF ¶ 20.9

Ms. Fairweather’s paragraph 18 omits the detail that Ms. Newell supervises nine stores, and
that her estimate of the average number of complaints she receives per week includes complaints from
all nine stores. PSAMF ¶ 18 (citing DSMF Attach. 12 Dep. of Patricia N. Newell, at 14:15-19 (ECF No.
30) (Newell Dep.)). Friendly’s interposes a qualified response to this effect. DRPSAMF ¶ 18 (citing
Newell Dep. at 8:21-9:10, 14:15-21). The Court agrees that the qualification renders the assertion of
paragraph 18 more precise, and includes it. The Court otherwise deems Ms. Fairweather’s paragraph
18 admitted under Local Rule 56(f), (g).
8
Friendly’s interposes a qualified response that, in Mr. Rupard’s experience, posted comments
about rude servers are rare. DRPSAMF ¶ 19 (citing PSAMF Attach. 4, Dep. of Steven C. Rupard, at
10:19-21:10 (ECF No. 36) (Rupard Dep. 2)). This qualification does not render the assertion of
paragraph 19 inaccurate or misleading. The Court deems Ms. Fairweather’s paragraph 19 admitted
under Local Rule 56(f), (g).
9
Friendly’s interposes a qualified response that Mr. Rupard, whose deposition testimony
supports Ms. Fairweather’s paragraph 20, does not know what happens in these meetings and has
never sat in on one. DRPSAMF ¶ 20 (citing Rupard Dep. 2 at 12:11-20). It is true that Mr. Rupard
testified to this effect, but it is also true that he made the statement reproduced in paragraph 20 in
his testimony, and it was based on his personal knowledge. See Rupard Dep. 2 at 12:11-20. Friendly’s
qualification does not render Ms. Fairweather’s paragraph 20 inaccurate or misleading, so the Court
deems it admitted under Local Rule 56(f), (g).
7

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Surveys “come in all the time saying [servers] are rude all the time.” PSAMF
¶¶ 21, 28; DRPSAMF ¶¶ 21, 28.10 Management will post the surveys on a board so
everyone can see them but will block out the server’s name. PSAMF ¶ 22; DRPSAMF
¶ 22.11 Customers make many different kinds of complaints, including about servers
being rude. PSAMF ¶ 24; DRPSAMF ¶ 24. Some customers go into detail and some

Plaintiff’s paragraph 21 states that “[s]urveys ‘come in all the time saying waitresses are rude
all the time.’” PSAMF ¶ 21. Ms. Fairweather supports paragraph 21 with a citation to page 124, line
9 through page 125, line 2 of her deposition. PSAMF ¶ 21 (citing “Fairweather dep. 124:19-125:2”).
The Court cannot locate page 124 of Ms. Fairweather’s deposition. Ms. Fairweather did not file a
transcript of her deposition. See PSAMF; Loranger Aff. The Fairweather transcript provided by
Friendly’s as “Exhibit B” to its statement of material facts, skips from page 122 to 129. See DSMF
Attach. 2 Dep. of Susan Fairweather (ECF No. 30) (Fairweather Dep.) In its reply statement of facts,
Friendly’s provided additional pages for Ms. Fairweather’s deposition, but these pages skip from 112
to 125. See DRPSAMF Attach. 3 Dep. of Susan Fairweather (ECF No. 43) (Fairweather Dep. 2). The
fragment of testimony on lines 1 and 2 of page 125, provided by Friendly’s, reads: “it, but those slips
come in all the time saying waitresses are rude all the time.” Fairweather Dep. 2 at 125:1-2. Drawing
all reasonable inferences in Ms. Fairweather’s favor, the Court concludes that this fragment refers to
the customer surveys and it has included paragraph 21.
Friendly’s interposes a qualified response: “[Ms. Fairweather] could not recall specifics of what
the allegedly rude servers’ conduct was, but generally stated that customers would complain about the
server not paying attention of the food taking too long.” DRPSAMF ¶ 21 (citing Fairweather Dep. 2 at
125:8-12, 126:21-127:25). Ms. Fairweather’s testimony in these passages supports the assertion of her
paragraph 21, and the qualification does not render the assertion inaccurate. The Court deems Ms.
Fairweather’s paragraph 21 admitted under Local Rule 56(f), (g).
Friendly’s also interposes a qualified response to Ms. Fairweather’s paragraph 28, but the
qualification does not render the assertion inaccurate or misleading. See DRPSAMF ¶ 28. The Court
has elsewhere noted the facts constituting the qualification, and deems paragraph 28 admitted under
Local Rule 56(f), (g).
11
In paragraph 23, Ms. Fairweather states that she testified “that a couple days before her
deposition she saw where an employee Melanie Sawyer put on her Facebook about a customer
complaining about her and that she was so sick and tired of it.” PSAMF ¶ 23 (citing Fairweather Dep.
2 at 127:3-6). Friendly’s objects that this is hearsay, DRPSAMF ¶ 23, and Ms. Fairweather does not
respond to the objection as permitted under Local Rule 56(e). Paragraph 23 is problematic. Ms.
Sawyer’s Facebook posting would have been made in August 2013, see Fairweather Dep. 2, more than
a year after Friendly’s terminated Ms. Fairweather. Evidence of an employee’s frustration with
customer complaints well after Ms. Fairweather left work does not meet Rule 403 standards of
admissibility. Next, there are some portions of the statement that would not be hearsay because they
would not be offered for the truth. For example, Ms. Fairweather is presumably not offering the
Facebook posting to prove that Ms. Sawyer was actually “sick and tired” of customer complaints.
Nevertheless, she is presenting the posting as evidence of the frequency of customer complaints. To
that extent, the statement is being offered for its truth and would be inadmissible hearsay. Finally,
the testimony about Ms. Sawyer’s Facebook posting is cumulative. For these reasons, the Court
declines to include Ms. Fairweather’s statement about Ms. Sawyer’s August 2013 Facebook posting.
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people insult their server. PSAMF ¶ 24; DRPSAMF ¶ 24.12 Ms. Fairweather testified
that there have been “hundreds” of such complaints. PSAMF ¶ 25; DRPSAMF ¶ 25.13
Friendly’s also tracks its guest complaints over a four week period. PSAMF ¶
31; DRPSAMF ¶ 31.

In one four week period for stores under Ms. Newell’s

supervision, she had 16.5 customer complaints per 100,000 customers. PSAMF ¶ 32;
DRPSAMF ¶ 32.14 Ms. Newell testified that this is an average number of complaints.
PSAMF ¶ 33; DRPSAMF ¶ 33.
Friendly’s also tracks how customers rate the friendliness of staff and the
attentiveness of the server. PSAMF ¶ 34; DRPSAMF ¶ 34. In one tracking, 21% of
the customers were not highly satisfied. PSAMF ¶ 35; DRPSAMF ¶ 35.15 Friendly’s

Friendly’s interposes the same qualified response to Ms. Fairweather’s paragraph 24 that it
offered for her paragraph 21: that Ms. Fairweather cannot recall the details but that people generally
complained about food being late or the server not paying attention. DRPSAMF ¶ 24 (citing
Fairweather Dep. 2 at 127:17-128:8). Ms. Fairweather did testify that customers frequently
complained about “rude” servers, Fairweather Dep. 2 at 127:4-12, and this supports the assertion of
paragraph 24. Friendly’s qualification does not render this assertion inaccurate or misleading, and so
the Court deems the paragraph admitted under Local Rule 56(f), (g).
13
In paragraph 25, Ms. Fairweather asserts that “There are hundreds [of] such complaints.”
PSAMF ¶ 25 (citing Fairweather Dep. 2 at 127:19). Friendly’s objects to this statement as “irrelevant
and immaterial.” DRPSAMF ¶ 25. The Court overrules this objection; it is relevant and material to
Ms. Fairweather’s claim of a pretextual discharge. The Court deems the paragraph admitted under
Local Rule 56(f), (g).
14
Ms. Fairweather’s paragraph 32 claims that the number was 16.5 customer complaints per
1,000 customers. PSAMF ¶ 32 (citing PSAMF Attachs. 1,2 Dep. of Patricia N. Newell, at 21:1-25 (ECF
No. 36) (Newell Dep. 2)). Friendly’s denies this statement, pointing out that Ms. Newell later corrected
her testimony to state that it was per 100,000 customers. DRPSAMF ¶ 32 (citing Newell Dep. 2 at
21:4-15, 58:22-59:4; and PSAMF Attach. 3 Complaints per 100K Guests, Recent 4-week trend (ECF No.
36) (Four-Week Complaints Trend)). Friendly’s is correct, and the Court has adjusted Ms.
Fairweather’s paragraph 32 to reflect that the measure is 16.5 complaints per 100,000 guests. The
Court deems the modified assertion admitted under Local Rule 56(f), (g).
15
Friendly’s objects on materiality, relevance and foundational grounds. DRPSAMF ¶ 35. The
foundation objection is frivolous. Ms. Newell, who was the manager of the district in which the South
Portland Friendly’s was located, identified the document as one that the restaurant generated every
week. Newell Dep. 2 at 26:2-14. The document is relevant and material to the extent it shows that
Friendly’s customers were hard to please and quick to complain. Friendly’s also interposes a qualified
response, but the qualification does not render the assertion of paragraph 35 incorrect or misleading.
The Court deems paragraph 35 admitted under Local Rule 56(f), (g).
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also tracks overall guest satisfaction for each store. PSAMF ¶ 36; DRPSAMF ¶ 36.
The nine stores under Ms. Newell’s management ranked at the bottom with a 28.6%
overall guest satisfaction and 71.4 % of the restaurants under her management was
not on target for guest satisfaction. PSAMF ¶¶ 37-38; DRPSAMF ¶¶ 37-38.16
4.

Instances of Customer Complaints

At some point in the two years before Ms. Fairweather’s termination, someone
noted a customer complaint as follows: “the guest stated that they had a server named
Joanne…was rude to the guest [sic].” PSAMF ¶ 49; DRPSAMF ¶ 49.17 During this

Friendly’s objected to these statistics as “immaterial, irrelevant, and lack[ing] a proper
foundation.” DRPSAMF ¶ 37. Regarding the foundational objection, Ms. Newell recognized the
exhibit that contained this data as the Overall Guest Satisfaction (OSAT) statistics from Friendly’s.
Newell Dep. 2 at 30:8-31:25. It is true that Ms. Newell did not know the period that the OSAT report
had been generated, but she recognized the document as relating to her period as a district manager.
The record does not establish the exact date that Ms. Newell became the district manager, but the
Court has approximated the date. See Newell Dep. at 4:3-5 (stating that Ms. Newell began working
for Friendly’s in December of 2004); id. at 8:17-20 (stating that Ms. Newell became a district manager
four years later). Thus, if she became the district manager in 2008, the report must have generated
between 2008 and the date of the deposition. The Court included the paragraph despite the lack of
direct evidence as to when it was generated. As to its materiality and relevance, the statistical
information is material and relevant for the reasons set forth previously. See supra note 15.
17
Ms. Fairweather’s paragraph 49 states: “A customer sent in a complaint stating ‘the guest
stated that they had a server named Joanne…was [sic] rude to the guest.’” PSAMF ¶ 49 (citing
Loranger Aff. Attach. 5, at FICL 001750 (ECF No. 37) (Customer Complaints)). Friendly’s raises a
relevance objection, DRPSAMF ¶ 49; the Court overrules this objection because the assertion is
relevant to Ms. Fairweather’s claim of pretextual discharge. The Court reworded the assertion to
reflect that this was written by someone other than the guest, because it refers to “the guest” in the
third person. The Court also adjusted the assertion to show that it occurred at some time during the
two years prior to Ms. Fairweather’s termination. See Loranger Aff. ¶ 4. The Court otherwise deems
Ms. Fairweather’s paragraph 49 admitted under Local Rule 56(f), (g).
In paragraphs 46 through 48, Ms. Fairweather refers to additional customer complaints.
These paragraphs cite (1) “D’s response to Pl’s document production set 2, #2, D’s [B]ate-stamp
document 001402-03”; (2) the same phrase but referring only to “D’s [B]ate-stamp document 001403”;
and (3) the same phrase but referring to “D’s [B]ate-stamp document 001729.” PSAMF ¶¶ 46-48.
Paragraph 46 purports to describe a customer complaint about Todd Woodsome and refers to pages
Bates-stamped 001402 and 001403. However, the Court cannot locate any page marked 001403 among
Exhibits 2 or 3 to Mr. Loranger’s affidavit (or anywhere else in the summary judgment record), while
FICL 001402 does not mention Todd Woodsome. See Loranger Aff. Attachs. 2-4, at FICL 001402 (ECF
No. 37) (Disciplinary Notices). Paragraph 47 expands on the alleged complaint about Mr. Woodsome,
citing a page Bates-stamped 001403; this page, as noted, is not available. Paragraph 48 purports to
quote another customer email complaint, citing a page Bates-stamped 001729. This page is available,
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time, another customer wrote to complain that she “spoke to the manager Amy [about
a problem] who said that she did not know what the guest expected her to do about it
and was extremely rude to the guest.” PSAMF ¶ 54; DRPSAMF ¶ 54.18 Amy Barter
was a supervisor at Friendly’s. DSMF ¶ 24; PRDSMF ¶ 24. Friendly’s terminated
Ms. Barter on January 13, 2012, four months before it terminated Ms. Fairweather.
DRPSAMF ¶ 54.
Before Ms. Fairweather’s termination, one customer wrote to complain that
“THE FOOD IS AWFUL, and the service by high school children and the circus
element was pathetic and the restaurant was dead – no excuses.” PSAMF ¶ 50;
DRPSAMF ¶ 50.19 Another customer complained that an employee “proceeded to
wait ten minutes and no one would help the guest but they were not busy and kept
looking at the guest.

She said there was no customer service at all from the

see Customer Complaints at FICL 001729, but it does not include the text of paragraph 48 or anything
close to it. Compare PSAMF ¶ 48 with Customer Complaints at FICL 001729. “The court shall have
no independent duty to search or consider any part of the record not specifically referenced in the
parties’ separate statement of facts.” D. ME. LOC. R. 56(f). Ms. Fairweather has not provided record
support for the assertions of paragraphs 46, 47, or 48, and the Court does not credit them. D. ME. LOC.
R. 56(b), (f).
18
Friendly’s raises a relevance objection to this assertion, arguing that “Amy” (presumably Amy
Barter, see DSMF ¶ 24) was not similarly situated to Ms. Fairweather. DRPSAMF ¶ 54 (citing
Cardona Jimenez v. Bancomerico de P.R., 174 F.3d 36, 42 (1st Cir. 1999)). The Court overrules the
relevance objection, but will consider this point in its legal analysis. Friendly’s also points out that
the employee that was the subject of the complaint was terminated by Friendly’s in early January of
2012. DRPSAMF ¶ 54 (citing Stips. ¶ 14 and Employee Census). The Court has included this
additional fact to clarify Ms. Fairweather’s paragraph 54. The Court otherwise deems paragraph 54
admitted under Local Rule 56(f), (g).
19
Friendly’s objects to this paragraph, claiming that it is not relevant because it does not relate
to rude behavior by a server to a guest and because the server is not identified. DRPSAMF ¶ 50. The
Court overrules this objection to the extent it shows that Friendly’s customers were hard to please and
quick to complain.

12

supervisor. She said she will never spend another penny at another Friendly’s.”
PSAMF ¶ 51; DRPSAMF ¶ 51.20 Another complaint stated that
I just had to let you know I was very dissatisfied with the service I
received the other day while eating at Friendly’s of South Portland, ME
. . . undercooked food, melted ice cream and a bill that we paid full price
for very poor service. We will not be returning to this Friendly’s again.
PSAMF ¶ 52; DRPSAMF ¶ 52.21 Another customer claimed that “when we arrived,
we sat in the lobby for five minutes before anyone came to welcome us . . . I probably
will not return to Friendly’s due to the service and food temperature.” PSAMF ¶ 53;
DRPSAMF ¶ 53.22 Other customer complaints identified slow service, inattention by
servers, inflexible menu options, and inaccuracies in their orders as sources of
frustration.

PSAMF ¶¶ 58, 60-62; DRPSAMF ¶¶ 58, 60-62.23

None of these

complaints identified the server, nor did any claim that a server was actually rude to
a guest. DRPSAMF ¶¶ 50-53. Friendly’s had no basis on which to identify an
employee to discipline as a result of these complaints. Id.
Some customers did complain of rudeness by servers in this period.

One

customer complained that “our waitress was extremely rude and we were made to
feel rushed and unwelcomed . . . we were so disgusted that we asked for our check

Friendly’s objects to Ms. Fairweather’s paragraph 51 as irrelevant, DRPSAMF ¶ 51, but the
Court overrules this objection. See supra note 19.
21
Friendly’s objects to Ms. Fairweather’s paragraph 52 as irrelevant, DRPSAMF ¶ 52, but the
Court overrules this objection. See supra note 19.
22
Friendly’s objects to Ms. Fairweather’s paragraph 53 as irrelevant, DRPSAMF ¶ 53, but the
Court overrules this objection. See supra note 19.
23
In paragraphs 58, 60, 61, and 62, Ms. Fairweather provides more instances of customer
complaints that do not allege rudeness by a server and do not identify the server by name. The Court
notes them and has read them, but they can be recounted in summary fashion without sacrificing
precision. Friendly’s objects on relevance grounds to each assertion, DRPSAMF ¶¶ 58, 60-62, but the
Court overrules these objections. See supra note 19.
20

13

and left, if we complained we would have been made to wait another forty minutes,
that was just not an option.” PSAMF ¶ 55; DRPSAMF ¶ 55.24 Another customer
wrote in to complain: “Joanne, the staff assigned to us[,] needs a class in being a
server. Rude as rude can be . . . a server who could care less about her customer.”
PSAMF ¶ 56; DRPSAMF ¶ 56.25 The only server with the first name “Joanne” in this
period was Joanne Roberge, who was older than Ms. Fairweather. DRPSAMF ¶ 56.
Friendly’s terminated Ms. Roberge in early January 2012. PSAMF ¶ 73; DRPSAMF
¶ 73.26
Another customer wrote:
[W]e waited an extended period of time to be seated. The staff seemed
to be angry and one server seemed to be airing her gripes about the
restaurant personnel to anyone who would listen. There did not seem
to be anyone in charge of the personnel. No one seemed concerned about
the customers.

Friendly’s raises a relevance objection to Ms. Fairweather’s paragraph 55. DRPSAMF ¶ 55.
It argues that without knowing the name of the server, Friendly’s had no basis on which to discipline
any employee. Id. However, the assertion establishes that Friendly’s was on notice, in the two years
before Ms. Fairweather’s termination, that at least one of its servers had been rude to a customer. As
managers, Ms. Coutts and Ms. Newell were charged with eliminating and preventing rudeness to
guests, and their notice of problems at the South Portland store is relevant to their motives for
terminating Ms. Fairweather. The Court overrules the relevance objection and deems Ms.
Fairweather’s paragraph 55 admitted under Local Rule 56(f), (g).
25
Friendly’s objects to the relevance of this assertion. DRPSAMF ¶ 56. It observes that the only
server with the first name “Joanne” in this period was Joanne Roberge. Id. (citing Employee Census
and Loranger Aff. Attach. 1 Charge of Discrimination (ECF No. 37)). Friendly’s observes that Ms.
Roberge was 63 when she was terminated, Charge of Discrimination, and because this is older than
Ms. Fairweather, complaints about Ms. Roberge cannot be relevant to whether Ms. Fairweather was
terminated because of her age. Id. The Court disagrees. If, as Ms. Fairweather contends, Ms. Roberge
was terminated because of her age, the fact that she was older than Ms. Fairweather does not make
the fact of her termination less relevant to Ms. Fairweather’s allegation that the same thing happened
to her. The Court overrules the relevance objection and deems paragraph 56 admitted under Local
Rule 56(f), (g). However, to avoid rendering paragraph 56 misleading, the Court has included the fact
that the only “Joanne” on staff was Joanne Roberge.
26
Friendly’s objects to this paragraph on the grounds of relevance and materiality. DRPSAMF
¶ 73. The Court overrules these objections.
24

14

PSAMF ¶ 59; DRPSAMF ¶ 59.27
5.

Friendly’s Progressive Discipline Policy and Harassment
Policy

Friendly’s maintains an Employee Manual that contains policies applicable to
Friendly’s employees, as well as Friendly’s disciplinary procedure. DSMF ¶ 72;
PRDSMF ¶ 72. Ms. Fairweather reviewed the manual and the discipline policy at
some point, but she could not recall when; it remained available and accessible to
employees in the South Portland restaurant during Ms. Fairweather’s employment
at Friendly’s. DSMF ¶ 73; PRDSMF ¶ 73.
Friendly’s uses a “progressive discipline policy.” PSAMF ¶ 6; DRPSAMF ¶ 6.
Severe incidents, such as stealing, swearing, and “guest incidents,” may warrant
immediate termination. PSAMF ¶ 7; DRPSAMF ¶ 7.28 For situations other than
severe incidents, the first step in the policy is a “Note-to-File” in which a manager
documents a conversation with an employee on a Friendly’s “Employee Disciplinary
Notice.” PSAMF ¶ 7; DRPSAMF ¶ 7. If the same non-severe infraction occurs again,

Friendly’s objects to Ms. Fairweather’s paragraph 59 as irrelevant, but the Court overrules
this objection. See supra note 24.
28
Ms. Fairweather’s paragraph 7 states that “[t]he first step in the [progressive discipline policy]
is a ‘Note-to-File’ the file in which a manage[r] document[s] a conversation with an employee on a
Friendly’s ‘Employee Disciplinary Notice.’” PSAMF ¶ 7 (citing DRPSAMF Attach. 4 Dep. of Bonny S.
Coutts, at 18:11-16, 19:2-6 (ECF No. 43) (Coutts Dep. 2) and Disciplinary Notices at FICL 001356).
Friendly’s interposes a qualified response that in some circumstances Friendly’s might impose harsher
discipline without a note to file. DRPSAMF ¶ 7 (citing Coutts Dep. 2 at 17:19-18:16; Fairweather Dep.
at 136:12-23; and Employee Manual at 4-5). In the passage cited by Ms. Fairweather, Ms. Coutts
testified that “you have situations where there’s no warrant for a final written warning, it leads right
to termination depending on the severity.” Coutts Dep. 2 at 18:3-6. These severe situations include
stealing money, swearing, and “guest incidents.” Id. at 18:8, 10. Ms. Coutts testified that the note to
file would be used for less severe situations. Id. at 18:11-23. In light of Ms. Fairweather’s own cited
record material, her paragraph 7 is inaccurate. The Court has adjusted it accordingly.
27

15

the second step in the policy would be a “Warning.” PSAMF ¶ 8; DRPSAMF ¶ 8.29
The third step is a “Final Warning.” PSAMF ¶ 9; DRPSAMF ¶ 9.30
Friendly’s maintains a policy mandating the respectful treatment of guests by
employees. DSMF ¶ 74; PRDSMF ¶ 74.31 Ms. Fairweather agrees that Friendly’s
policy regarding respectful treatment of guests is an important policy for Friendly’s.
DSMF ¶ 75; PRDSMF ¶ 75. She agrees that the policy includes treating guests with
respect, being friendly to guests, and being polite and thoughtful when
communicating with guests. DSMF ¶ 75; PRDSMF ¶ 75.
The Employee Manual also sets forth a “non-exclusive list of specific violations
that will likely result in termination of employment upon the first offense.” DSMF ¶
76; PRDSMF ¶ 76.32 The very first listed violation is “Discourteous treatment of a
restaurant Guest, including offensive or abusive language that can be overheard by

The Court qualifies Ms. Fairweather’s paragraph 8 to indicate that the progressive discipline
policy applies to non-severe incidents. See DRPSAMF ¶ 8; supra note 28 (discussing PSAMF ¶ 7).
30
Friendly’s interposes the same qualified response to Ms. Fairweather’s paragraph 9 that it
offered for her paragraphs 7 and 8. DRPSAMF ¶ 9. The Court notes the qualification.
31
Ms. Fairweather denies that “Friendly’s consistently enforces this policy. For instance,
Friendly’s allowed [Mr.] Rupard to harass [Ms.] Fairweather without repercussion.” PRDSMF ¶ 74
(citing PSAMF ¶¶ 139-58). This response is improper under Local Rule 56(d): “The reply statement
shall . . . support each denial . . . by a record citation as required by subsection (f) of this rule.”
Subsection (f) requires that “[a]n assertion of fact set forth in a statement of material facts shall be
followed by a citation to the specific page or paragraph of identified record material supporting the
assertion.” Local Rule 56(f). This requirement applies equally to denials of an opposing party’s
statement of fact.
However, even if it were properly supported, Ms. Fairweather’s paragraph 74 does not
controvert the assertion of Friendly’s paragraph 74. Ms. Fairweather was an employee, not a guest of
the restaurant. Whatever Mr. Rupard’s behavior to her might have been, it would not have violated a
rule mandating polite treatment of guests. The Court deems Friendly’s paragraph 74 admitted under
Local Rule 56(f), (g).
32
Ms. Fairweather denies “that discourteous treatment to a guest is a basis for termination.”
PRDSMF ¶ 76 (citing PSAMF ¶¶ 14-15, 20-30). This denial is not properly supported by a citation to
record material. D. ME. LOC. R. 56(d), (f). Furthermore, the record supports the assertion. DSMF
Attach. 8 Employee Manual at FICL 000216-217 (ECF No. 30) (Employee Manual). The Court deems
Friendly’s paragraph 76 admitted under Local Rule 56(f), (g).
29

16

a Guest.” DSMF ¶ 76; PRDSMF ¶ 76. Ms. Fairweather believes that being rude to a
guest could lead to a guest not coming back to Friendly’s, a loss of revenue to
Friendly’s, and, in some situations, should lead to a server’s termination. DSMF ¶
77; PRDSMF ¶ 77.
Friendly’s harassment policy prohibits verbal harassment toward a co-worker
or subordinate. PSAMF ¶¶ 139, 149; DRPSAMF ¶¶ 139, 149. The policy states that
“supervisors have a special responsibility to act immediately upon learning of any
harassment.” PSAMF ¶ 140; DRPSAMF ¶ 140. It also states that “it is company
policy to promptly and thoroughly investigate complaints.”

PSAMF ¶ 141;

DRPSAMF ¶ 141.
6.

Instances of Employee Discipline

Since becoming a district manager in or about 2009, Ms. Newell has only fired
“a couple of employees” for being rude to a customer. PSAMF ¶ 30; DRPSAMF ¶ 30.33
Ms. Newell testified that rudeness to a customer will always result in termination.
PSAMF ¶ 124; DRPSAMF ¶ 124.34
On February 18, 2011, Ms. Coutts issued a note to file to employee Michelle
Robertson.

PSAMF ¶ 40; DRPSAMF ¶ 40.35

On or about September 9, 2011,

Friendly’s interposes a qualified response, pointing out that Ms. Fairweather does not provide
any evidence of how long Ms. Newell has been a district manager. DRPSAMF ¶ 30. This does not
render the assertion of paragraph 30 inaccurate or misleading, and the Court deems Ms. Fairweather’s
paragraph 30 admitted under Local Rule 56(f), (g). However, for context the Court has inserted the
approximate date on which Ms. Newell became general manager. See Newell Dep. at 4:3-5 (stating
that Ms. Newell began working for Friendly’s in December of 2004); id. at 8:17-20 (stating that Ms.
Newell became a district manager four years later).
34
Ms. Fairweather’s paragraph 124 also contains an assertion related to the facts of Ms.
Fairweather’s termination; the Court recites this portion of paragraph 124 later.
35
Ms. Fairweather’s paragraph 39 asserts: “On 8/24/12 to [sic] Zachery Hutchins for
‘Insubordination’, ‘Use of offensive/abusive language’, ‘rude/discourteous treatment of Guests/co33

17

“management” issued a note to file to Steph Rosario for “rude/discourteous treatment
of guests/co-workers.” PSAMF ¶ 41; DRPSAMF ¶ 41.36 On December 31, 2011,
“management” issued a note to file to Dan Goodling for “rude/discourteous treatment
of guests/co-workers.” PSAMF ¶ 43; DRPSAMF ¶ 43.37 This “rude and discourteous
treatment of co-workers” resulted, according to the write-up, when he “got loud and
confrontational to Fairweather in front of customers. Tempers flared.” PSAMF ¶ 44;

workers/Manager.’” PSAMF ¶ 40 (citing “D’s response to Pl’s document production set 2, #4, Batestamp document FICL 001355”). The Court cannot locate the record material in this citation; Exhibit
2 to Mr. Loranger’s affidavit, which contains pages Bates-stamped between FICL 001356 and FICL
001408, does not contain a page stamped FICL 001355. Because Ms. Fairweather has not provided
record material to support the assertion of her paragraph 39, the Court does not credit it. D. ME. LOC.
R. 56(b), (f).
36
Friendly’s objects that this statement is irrelevant because Ms. Rosario was not disciplined for
being rude to a customer. DRPSAMF ¶ 41 (citing Disciplinary Notices at FICL 001370). Friendly’s is
correct that the “details” section of this disciplinary notice does not mention rudeness, but an arrow in
the written section indicates that additional detail has been provided elsewhere—likely on the back of
the sheet. See Disciplinary Notices at FICL 001370. The box titled “Rude/discourteous treatment of
Guests/co-workers” is checked, however. Id. Viewing this evidence in a light most favorable to Ms.
Fairweather, the Court concludes that Ms. Rosario was disciplined, in part, for “Rude/discourteous
treatment of Guests/co-workers,” and that the description of the rude behavior—to someone—
continued elsewhere. The Court overrules Friendly’s relevance objection and deems Ms. Fairweather’s
paragraph 41 admitted under Local Rule 56(f), (g).
In paragraph 42, Ms. Fairweather asserts that: “On 12/30/11 management issued a warning
to server Daniel Goodlin[g] for ‘behavior towards MOD and fellow staff members, short,
discourteous…service to customers seemed rushed. Need to slow down and be aware of your
surroundings, act in a friendly manner to co-workers.’” PSAMF ¶ 42 (citing “D’s response to Pl’s
document production set 2, #2, D’s bate-stamp document 001385”). Exhibit 2 to Mr. Loranger’s
affidavit includes pages with Bates-stamps in a range from FICL 001356 to FICL 001408, but it does
not contain a page stamped 001385. Because Ms. Fairweather has not provided record material to
support the assertion of her paragraph 42, the Court does not credit it. D. ME. LOC. R. 56(b), (f).
37
Friendly’s objects that this statement is irrelevant because Mr. Goodling’s discipline was
imposed, not for being rude to a customer, but for getting into a loud confrontation with his co-worker
Ms. Fairweather. DRPSAMF ¶ 43. Friendly’s also points out that Mr. Goodling was terminated less
than two weeks after this incident. Id. (citing Stips. ¶ 14(b) and Employee Census)). The Court
overrules the relevance objection; the assertion is relevant to Ms. Fairweather’s claim of pretextual
termination. However, to avoid rendering Ms. Fairweather’s paragraph 41 misleading, the Court
includes the additional point that Mr. Goodling was terminated shortly after the incident. Employee
Census. The Court otherwise deems Ms. Fairweather’s paragraph 44 admitted under Local Rule 56(f),
(g).

18

DRPSAMF ¶ 44.38 Mr. Goodlin was terminated less than two weeks later, though
the record does not reveal the reason for termination. DRPSAMF ¶ 43.39 In the two
years preceding Ms. Fairweather’s termination on May 14, 2012, management in the
South Portland restaurant only issued four instances of “Note-to-File” discipline in
response to all customer complaints received in that period.

PSAMF ¶ 162;

DRPSAMF ¶ 162.40
7.

Customer Complaints Regarding Ms. Fairweather in
South Portland

On October 19, 2010, Mr. Green filled out an Employee Discipline Notice
indicating that he had spoken with Ms. Fairweather “regarding the way she talks to
teammates.” DSMF ¶ 21; PRDSMF ¶ 21.41 Mr. Green wrote that “[s]he also did it

Friendly’s raises the same relevance objection to Ms. Fairweather’s paragraph 44 that it raises
to her paragraph 43. DRPSAMF ¶ 44. The Court overrules the objection for the same reasons. Supra
note 37 (discussing DRPSAMF ¶ 43).
39
In Ms. Fairweather’s paragraphs 45, she describes a warning note allegedly written to Todd
Woodsome. PSAMF ¶ 45 (citing “D’s response to Pl’s document production set 2, #2, D’s bate-stamped
document 001401”). The Court cannot locate in the record any page with a Bates-stamp of “001401”;
it is not among the apparently adjacent pages in Exhibit 2 to Mr. Loranger’s affidavit. See Disciplinary
Notices. Because Ms. Fairweather has not provided record material to support the assertion of her
paragraph 45, the Court does not credit it. D. ME. LOC. R. 56(b), (f).
40
Friendly’s interposes a qualified response:
38

Friendly’s produced all responsive documents that it was able to locate. That does not
mean, however, that other discipline was not issued during the relevant timeframe.
In addition, [Ms. Fairweather’s] request was limited to complaints regarding
employees in [her] job classification, not all employees in the restaurant.
DRPSAMF ¶ 162. The Court is required to view the evidence in a light most favorable to Ms.
Fairweather and draw all reasonable inferences in her favor. Friendly’s may not oppose Ms.
Fairweather’s factual assertion, otherwise supported by the record, by claiming that it could not locate
any other records within its own custody. The Court concludes that the four instances of “Note-toFile” discipline were all of those that resulted at the South Portland restaurant from customer
complaints in the period, and deems Ms. Fairweather’s paragraph 162 admitted under Local Rule
56(f), (g).
41
Friendly’s paragraph 21 states:

19

w/in guests’ ‘ear-shot’ near dining room.” DSMF ¶ 21; PRDSMF ¶ 21. Mr. Green
noted the reasons for Ms. Fairweather’s discipline as “use of offensive/abusive
language” and “rude/discourteous treatment of guests,” both of which were indicated
on the form as being “Suspendable/Dischargeable Actions.” DSMF ¶ 22; PRDSMF ¶
22.42 Ms. Fairweather does not recall this incident or the discussion with Mr. Green.
DSMF ¶ 23; PRDSMF ¶ 23.43
One month later, supervisor Amy Barter wrote a note to Ms. Fairweather’s file
stating: “I witnessed Sue F. talking inappropriately to another server in front of
customers. ‘Are you the one crying about not getting any tables.’ I did not approach

On October 19, 2010, Green filled out an Employee Discipline Notice indicating that
he spoke with Plaintiff “regarding the way she talks to teammates. She also did it w/
in guests’ ‘ear-shot’ near dining room.”
DSMF ¶ 21. Ms. Fairweather denied this paragraph, asserting that she did not engage in this
behavior, did not sign the acknowledgement form, and had never seen the form before her deposition.
PRDSMF ¶ 21 (citing Fairweather Dep. at 116, 117:21-118:25). In these passages, Ms. Fairweather
primarily testified that she did not recall the documented misbehavior and did not recall the
conversation with Mr. Green. See Fairweather Dep. at 117:21-118:21. She also denied outright that
she had “[]ever been at all abusive to co-workers.” Id. at 118:14-15.
However, Friendly’s paragraph 21 asserts that Mr. Green documented his interaction with Ms.
Fairweather, not that she engaged in the underlying conduct. See DSMF ¶ 21 (citing DSMF Attach.
5 Friendly’s Restaurant Employee Discipline Notice (ECF No. 30) (Oct. 19, 2010) (Green Discipline
Notice)). Friendly’s properly supports the assertion of its paragraph 21 with record material, Green
Discipline Notice, and Ms. Fairweather stipulated to the authenticity of that material. Stips. ¶ 14(b);
DSMF Attach. 13, at FICL 000056 (ECF No. 30) (Fairweather Personnel File). Ms. Fairweather has
also not shown any record material that controverts the assertion of Friendly’s paragraph 21. See
PRDSMF ¶ 21. The Court deems Friendly’s paragraph 21 admitted under District of Maine Local
Rule 56(f), (g).
42
Ms. Fairweather denies Friendly’s paragraph 22, but the record material she cites does not
controvert the assertion of paragraph 22. See PRDSMF ¶ 22; supra note 41 (discussing PRDSMF ¶
21). Furthermore, Friendly’s record material supports the assertion. Green Discipline Notice;
Fairweather Personnel File at FICL 000056. The Court deems Friendly’s paragraph 22 admitted under
Local Rule 56(f), (g).
43
Ms. Fairweather denies Friendly’s paragraph 23, but her denial does not controvert the
substance of paragraph 23. See PRDSMF ¶ 23. Friendly’s supports paragraph 23 with record
material, DSMF ¶ 23 (citing Fairweather Dep. at 117:21-118:21), and the Court therefore deems the
paragraph admitted under Local Rule 56(f), (g).

20

her at this time, will monitor behavior. DK is aware and has been notified.” DSMF
¶ 24; PRDSMF ¶ 24.44 Ms. Fairweather recalls an incident where she stated to
another server: “instead of crying about not getting any tables, why don’t you go seat
the door and get one,” but she is not positive that it is the same incident for which
Ms. Barter wrote her up. DSMF ¶ 26; PRDSMF ¶ 26.45 Ms. Fairweather does not
believe that Ms. Barter treated her differently than Ms. Barter otherwise would have
because of Ms. Fairweather’s age, and Ms. Fairweather “did not have any issues” with
Ms. Barter. DSMF ¶ 25; PRDSMF ¶ 25.
On March 15, 2011, Ms. Newell and Mr. Mosher received an email indicating
that an electronic complaint had been filed. DSMF ¶ 27; PRDSMF ¶ 27; PSAMF ¶¶
4-5; DRPSAMF ¶¶ 4-5.46 The contents of that complaint were:

Ms. Fairweather once again denies that she engaged in the behavior underlying the note to
file. PRDSMF ¶ 24 (citing Fairweather Dep. at 120:21-24; 122:1-3). She also denies that she “had any
such discussion with D.K. Green.” Id. (citing Fairweather Dep.at 118:19-21). The latter denial is
puzzling, as Friendly’s paragraph 24 does not assert that Ms. Fairweather had any interaction with
Mr. Green, and the cited portion of Ms. Fairweather’s deposition refers to the conversation that Mr.
Green documented in his write-up of October 19, 2010. The former denial does not controvert the
assertion of Friendly’s paragraph 24—that Ms. Barter wrote a note to the file with her observations.
Compare DSMF ¶ 24 with PRDSMF ¶ 24. The record material that Friendly’s cites supports
paragraph 24. DSMF Attach. 6 Note to file (ECF No. 30) (Nov. 18, 2010) (Note to File). Ms.
Fairweather’s cited material, on the other hand, goes to her own characterization of her interaction
with another waitress that may or may not have been the event underlying Ms. Barter’s note to file.
Fairweather Dep. at 120:14-122:17. However Ms. Fairweather may recall the interaction she describes
in her deposition, she does not challenge the authenticity of the note to file and provides no evidence
to controvert the assertion that Ms. Barter wrote it on November 18, 2010. The Court deems Friendly’s
paragraph 24 admitted under Local Rule 56(f), (g).
45
Ms. Fairweather denies Friendly’s paragraph 26 in terms identical to her denial of paragraph
24. Compare PRDSMF ¶ 26 with PRDSMF ¶ 24. In this case, Friendly’s paragraph 26 is partly a
direct quote from Ms. Fairweather’s deposition testimony, and the remainder finds direct support in
that testimony. Compare DSMF ¶ 26 with Fairweather Dep. at 121:14-15, 122:8-11. Ms. Fairweather’s
cited material does not controvert the assertion of Friendly’s paragraph 26, so the Court deems the
paragraph admitted under Local Rule 56(f), (g).
46
Ms. Fairweather denies paragraph 27, interposing her own characterization of her interactions
with the customer. PRDSMF ¶ 27 (citing Fairweather Dep. at 129:1-130:25). This record material
does not controvert any of the assertions of Friendly’s paragraph 27, which are (1) that Ms. Newell
and Mr. Mosher received a complaint email, and (2) the contents of that email. DSMF ¶ 27; DSMF
44

21

My grandson and I dined in your So. Portland restaurant on 3/10/11 and
was very disappointed in the service as well as the meal. Check #1253
server 320 Sue F. We were not greeted upon arriving and I had to ask
someone to be seated. Although I did not find the restaurant
particularly busy the wait for service was extremely long. I asked that
sauerkraut be omitted from my sandwich and it was not. They did offer
to remake it but I did not want to wait any longer since I had been in
the restaurant for 45 minutes already. I was told this particular meal
was on special for either 4.99 or 5.99 but when the bill finally arrived I
noticed that I had been charged 8.99. The bill was recalculated but all
of this takes TIME. I was in your restaurant for 1 1/2 hours. I have
eaten their (sic) before some time ago and did not experience this poor
service. I don't know if it is under new management but I can assure
you that I will not be revisiting this particular restaurant again. Thank
you for hearing me out.
DSMF ¶ 27; PRDSMF ¶ 27. Mr. Mosher forwarded the complaint to Ms. Coutts with
the message: “Aren’t we better than this? This is disappointing. Time. Urgency.
Speed . . . .” DSMF ¶ 28; PRDSMF ¶ 28.47 Ms. Coutts followed up with the customer
who had complained, and the customer indicated that Ms. Fairweather did not care
when the issue was brought to her attention. DSMF ¶ 29; PRDSMF ¶ 29.48 Ms.

Attach. 7 (ECF No. 30) (March 15 Complaint Email); Stips. ¶ 14(b); Fairweather Personnel File at
FICL 000051. The Court deems Friendly’s paragraph 27 admitted under Local Rule 56(f), (g).
In Ms. Fairweather’s paragraph 5, she claims that “[t]he incident involved a guest calling in
about their experience.” PSAMF ¶ 5 (citing Coutts Dep. at 22:14-23). Friendly’s interposes a qualified
response to the effect that the guest wrote in using Friendly’s electronic comment system. DRPSAMF
¶ 5. Ms. Coutts testified that “[w]hat happens is we have a commentary system and a guest can write
in about their experience.” Coutts Dep. at 22:19-21. Then, “the guest is called and we have a discussion
of what happened and then we go over it with employees.” Id. at 22:21-23. The passage cited by Ms.
Fairweather does not support her assertion that the guest called in the complaint; rather, it supports
Friendly’s qualification. Friendly’s paragraph 27 captures the substantive meaning of Ms.
Fairweather’s paragraphs 4 and 5.
47
Ms. Fairweather denies Friendly’s paragraph 28 with reasoning identical to her denial of
paragraph 27. See PRDSMF ¶ 28. However, the record material that Ms. Fairweather cites does not
controvert the assertion that Mr. Mosher forwarded the email to Ms. Coutts with the quoted
commentary, and Friendly’s supports this assertion with record material. March 15 Complaint Email.
The Court therefore deems Friendly’s paragraph 28 admitted under Local Rule 56(f), (g).
48
Ms. Fairweather denies Friendly’s paragraph 29, interposing her own version of the events
underlying the customer’s complaint. PRDSMF ¶ 29 (citing Fairweather Dep. at 129:1-130:25). Her
version does not controvert the assertion of paragraph 29, which is that Ms. Coutts followed up with
the customer and the customer told Ms. Coutts that Ms. Fairweather did not care about his issue.

22

Coutts reviewed the complaint with Ms. Fairweather, indicating that the customer
was upset, and Ms. Fairweather initialed the complaint. DSMF ¶ 30; PRDSMF ¶
30.49 This incident was the only time Ms. Coutts placed a “note to file” in Ms.
Fairweather’s personnel file before Ms. Fairweather’s termination. PSAMF ¶ 3;
DRPSAMF ¶ 3.50

DSMF ¶ 29. Friendly’s supports paragraph 29 with record material, id. (citing Coutts Dep. at 41:2242:10), and the Court therefore deems the paragraph admitted under Local Rule 56(f), (g).
49
Ms. Fairweather denies Friendly’s paragraph 30:
When asked at her deposition if she initialed the document at or around the complaint,
[Ms.] Fairweather responded, “I have no idea. I think we have a copy of this and I
don’t believe any of this in here.” (Fairweather dep. 129:16-21)[.] Regarding Coutts’
handwritten note, Fairweather testified “That’s not mine. I have never seen that.”
(Fairweather dep. 130:5-7).
PRDSMF ¶ 30.
This characterization of Ms. Fairweather’s deposition statements misses several important
points. First, when asked “are those your initials down at the bottom [of deposition Exhibit 10, here
Fairweather Personnel File at FICL 000051],” Ms. Fairweather replied “Yes.” Fairweather Dep. at
129:14-15. She later reaffirmed this answer. Id. at 130:3-4. She did indicate she could not tell the
date that she made the initials. Id. at 130:1-2. She did not state that “I don’t believe any of this in
here” as she now claims; what she actually said, in response to a question about the date, was “I have
no idea. I think we have a copy of this and I don’t believe any of this is in here.” Id. at 129:20-21
(emphasis added). The word “is” that Ms. Fairweather omitted in her quotation of the deposition
transcript substantially changes the meaning of the quote; rather than expressing denial of what was
then Exhibit 10, it simply shows that she did not believe she had previously seen the Exhibit. She also
admitted that “Bonnie [Coutts] talk[ed] to you . . . about this complaint.” Id.at 130:11-15.
Friendly’s cites this passage of Ms. Fairweather’s deposition, and also a passage from Ms.
Coutts’ deposition, in support of the assertion of paragraph 30. DSMF ¶ 30 (citing Fairweather Dep.
at 129:8-130:25; Fairweather Personnel File at FICL 000051; and Coutts Dep. at 22:4-23:1). In her
deposition, Ms. Coutts did not describe this specific incident, but did describe the general process that
she follows when handling a guest complaint. See Coutts Dep. at 22:4-26:25. However, Ms.
Fairweather’s own deposition and the Exhibit are sufficient to support the assertion of paragraph 30.
Because the assertion finds record support and Ms. Fairweather has not shown record material to
controvert it, the Court deems Friendly’s paragraph 30 admitted under Local Rule 56(f), (g).
50
Ms. Fairweather’s paragraph 3 states that during the time Ms. Coutts supervised Ms.
Fairweather she “testified she only placed one ‘Note-to-File’ pursuant to the [progressive discipline
policy] into [Ms.] Fairweather’s file.” PSAMF ¶ 3. Friendly’s interposes a qualified response, but the
qualification does not change the substance of the assertion. See DRPSAMF ¶ 3. The Court has
reworded Ms. Fairweather’s paragraph 3 slightly but otherwise deems it admitted under Local Rule
56(f), (g).

23

Ms. Coutts never previously issued discipline to Ms. Fairweather for “the way
she served the customers.”

PSAMF ¶ 135; DRPSAMF ¶ 135.51

Ms. Coutts

occasionally coached Ms. Fairweather on “speed of service, not making guests wait .
. . not cashing them out, . . . [and] not pre-bussing tables.” PSAMF ¶ 136; DRPSAMF
¶ 136; Coutts Dep. at 46:10-13.52 Ms. Fairweather recalls only one instance of being
“written up” at Friendly’s, which was the March 2011 incident. PSAMF ¶ 137;
DRPSAMF ¶ 137.53

Ms. Fairweather’s paragraph 135 states that “[Ms.] Coutts admits that she never previously
issue[d] discipline to [Ms.] Fairweather for customer service issues.” PSAMF ¶ 135 (citing Coutts Dep.
at 46:2-4). Friendly’s interposes a qualified response, pointing out that Ms. Coutts testified that she
never issued discipline to Ms. Fairweather “for the way she served the customers,” but earlier testified
that she had issued a note to file for the 2011 guest incident. DRPSAMF ¶ 135 (citing Coutts Dep. at
22:4-23, 41:22-42:10, 46:2-4). The Court has adjusted the language of paragraph 135 to accommodate
the first part of the qualification and has previously noted the fact of the earlier note to file. The Court
deems the modified version of paragraph 135 admitted under Local Rule 56(f), (g).
52
Ms. Fairweather’s paragraph 136 states that “[Ms.] Coutts admits that [she] had only
occasionally coached [Ms.] Fairweather on service but the coaching did not result in a ‘Note-to-File.’”
PSAMF ¶ 136 (citing “Coutts dep. 46:4:47:4-6,” which the Court takes to mean Coutts Dep. at 46:4-25
and Coutts Dep. 2 at 47:1-6). Friendly’s interposes a qualified response that the cited testimony does
not fully support the assertion. DRPSAMF ¶ 136 (citing Coutts Dep. at 46:2-25 and Coutts Dep. 2 at
47:1-6). In the cited passage, Ms. Coutts did not testify that her coaching had never resulted in a note
to file, and the Court does not credit that portion of the assertion. Coutts Dep. at 46:2-25; Coutts Dep.
2 at 47:1-6. The Court also earlier noted, as Friendly’s interposes, the fact of the March 2011 note to
file; however, this does not render the modified assertion of paragraph 136 inaccurate or misleading.
The Court deems paragraph 136, as modified, admitted under Local Rule 56(f), (g).
53
Ms. Fairweather’s paragraph 137 states that “[p]rior to the incident leading to [her]
termination, she had received only one verbal or written warning which occurred about a year before
where the customer received a Rueben sandwich with sauerkraut after ordering it without
sauerkraut.” PSAMF ¶ 137 (citing “Fairweather dep. 115-116:7”). Page 115 of Ms. Fairweather’s
deposition is not in the record; Friendly’s included page 116, but not page 115, in Exhibit B to its
statement of material facts. See Fairweather Dep. Friendly’s also included some supplemental pages
from Ms. Fairweather’s deposition in its reply to Ms. Fairweather’s statement of additional material
facts, Fairweather Dep. 2, but page 115 was not among them either. In the portion of the cited passage
on page 116, Ms. Fairweather had the following exchange with the questioner:
51

didn’t want sauerkraut or –
Q
So other than that, you don’t ever recall being written up?
A
I don’t think so.
Q
And you don’t recall any verbal warnings, any discussions with management?
A
That one I just said.

24

8.

Friendly’s Files for Bankruptcy

On October 5, 2011, Friendly Ice Cream Corporation filed a voluntary petition
under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for
the District of Delaware. Stips. ¶ 3. On January 9, 2012, the former Friendly Ice
Cream Corporation sold its assets to Friendly’s Ice Cream, LLC in an Order approved
by the Bankruptcy Court. Id. ¶ 4. One hundred and two restaurants were closed
during the bankruptcy, and approximately 2,500 employees were laid off. DSMF ¶ 5;
PRDSMF ¶ 5. All employees who continued to work for the newly-emerged Friendly’s
were rehired by Friendly’s Ice Cream, LLC. Stips. ¶ 5.
On January 2, 2012, before Friendly’s emerged from bankruptcy, the South
Portland Friendly’s terminated Ms. Roberge. PSAMF ¶ 66; DRPSAMF ¶ 66.54 Ms.

Fairweather Dep. at 116:1-7. The Court adjusted the paragraph to reflect approximately what Ms.
Fairweather said in these lines, viewing the evidence in a light most favorable to her and drawing all
reasonable inferences in her favor. Friendly’s also interposes a qualified response, but the Court has
elsewhere noted the facts of the qualification, and they do not render the modified assertion inaccurate
or misleading. See DRPSAMF ¶ 137. The Court deems the modified assertion admitted under Local
Rule 56(f), (g).
In her paragraph 138, Ms. Fairweather claims that “[Ms. Fairweather’s] termination did not
comply with [Friendly’s] progressive discipline policy.” PSAMF ¶ 138 (citing “Fairweather dep. ex. 5,
p. 3 answer to interrogatory 5”). Ms. Fairweather did not include Exhibit 5 to her deposition with her
statement of additional material facts. The Court does not credit her paragraph 138 because she did
not provide record support for the statement. D. ME. LOC. R. 56(c), (f).
More problematic, however, is Ms. Fairweather’s attempt to establish a legal conclusion as
“fact”: whether Friendly’s complied with its own discipline policy. This is improper. The non-moving
party may not “rest[] merely upon conclusory allegations,” Medina-Munoz v. R.J. Reynolds Tobacco
Co., 896 F.2d 5, 8 (1st Cir. 1990), and the Court is not required to credit bald legal argument as “fact”
or to controvert a factual assertion by the other side.
54
Ms. Fairweather’s paragraph 66 claims that “[i]n January 2012, the South Portland Friendly’s
also terminated older employee Joanne Roberge.” PSAMF ¶ 66 (citing Fairweather Dep. at 90). Ms.
Fairweather only testified that she would “characterize” Ms. Roberge as “an older worker.” The Court
has clarified the assertion to reflect this.
Friendly’s objects to this assertion claiming that (1) the termination occurred on January 2,
2012, when Friendly’s was still in bankruptcy, DRPSAMF ¶ 66 (citing Charge of Discrimination and
Stips. ¶¶ 4-5); and (2) Ms. Roberge had a history of disciplinary problems, including rudeness to guests.
Id. (citing Charge of Discrimination and Loranger Aff. Attach. 5, at FICL 001750, FICL 001814 (ECF
No. 37)). Friendly’s argues that this makes Ms. Roberge’s termination irrelevant to Ms. Fairweather’s

25

Roberge had a history of disciplinary problems, including rudeness to guests.
DRPSAMF ¶ 66. Friendly’s management claimed that Ms. Roberge had exceeded the
number of acceptable customer walk outs without paying. PSAMF ¶ 74; DRPSAMF
¶ 74.55 Ms. Roberge filed an age discrimination claim with the Maine Human Rights
Commission, claiming that other, younger waitresses had had more customers walk
out but were not terminated. PSAMF ¶ 74; DRPSAMF ¶ 74.
9.

Rude Behavior Toward Ms. Fairweather by Her CoWorkers

Ms. Fairweather believed that prior to her termination, management was
trying to “get rid of her” by checking all her slips at work, making her customers feel
uncomfortable, and making rude comments about her family.

PSAMF ¶ 85;

DRPSAMF ¶ 85. Beginning on or around July 2011, Ms. Coutts began making
comments and acting in a manner toward Ms. Fairweather that Ms. Fairweather
perceived as picking on her and trying to force her to quit. DSMF ¶ 31; PRDSMF ¶
31; PSAMF ¶ 86; DRPSAMF ¶ 86. Sometime after July 2011, Ms. Coutts “gave [Ms.
Fairweather] a hard time” about leaving her shift early to pick up a grandson. DSMF

charge of age discrimination. The Court disagrees; Ms. Roberge’s termination is relevant to Ms.
Fairweather’s charge of pretextual discharge. However, the Court has inserted these additional facts
as qualifications. The Court otherwise deems Ms. Fairweather’s paragraph 66 admitted under Local
Rule 56(f), (g).
55
In her paragraph 74, Ms. Fairweather claimed that Friendly’s management made these claims
in support of its termination of Ms. Roberge “[a]s a pretext to fire [her].” PSAMF ¶ 74. Friendly’s
raises a relevance objection to Ms. Fairweather’s paragraph 74. The statement as Ms. Fairweather
presented it is a legal conclusion, not creditable as fact. The Court has removed the legal conclusion
that Friendly’s made these claims against Mr. Roberge as a “pretext,” but acknowledges that,
according to Ms. Roberge’s complaint to the Maine Human Rights Commission, these were the reasons
that Friendly’s gave for firing her. See Loranger Aff. Attach. 1 Charge of Discrimination (ECF No. 37).
Reformulated as a statement of historical fact, the statement is relevant to Ms. Fairweather’s claim of
her own pretextual discharge, so the Court overrules Friendly’s objection.

26

¶ 32; PRDSMF ¶ 32. Toward the end of her employment, Ms. Coutts would also give
Ms. Fairweather a hard time about leaving when her shift was up. PSAMF ¶ 87;
DRPSAMF ¶ 87. She did not do that with other servers. PSAMF ¶ 87; DRPSAMF ¶
87. Ms. Coutts would also single out Ms. Fairweather for additional work, such as
wiping down all the shelves. PSAMF ¶ 88; DRPSAMF ¶ 88.56 In the year before her
termination on May 14, 2012, Ms. Coutts stated on two occasions that “if people were
too old to do their jobs, she would find somebody else who could.” DSMF ¶ 33;
PRDSMF ¶ 33; PSAMF ¶¶ 67-68; DRPSAMF ¶¶ 67-68.57
Ms. Coutts would, during the last six months to a year prior to Ms.
Fairweather’s termination, “give [Ms. Fairweather] a hard time” about leaving early;
ask her to do additional tasks; and check her section very closely to ensure that it was
clean and organized. DSMF ¶ 34; PRDSMF ¶ 34.58 In late 2011 or early 2012, Ms.

Ms. Fairweather’s paragraph 88 also claims that “[Ms.] Coutts did not have other employees
except for [Ms.] Fairweather.” PSAMF ¶ 88 (citing Fairweather Dep. at 60-61). The deposition
transcript does not support the assertion that Ms. Fairweather was Ms. Coutts’ only employee, or
even—reading the text of paragraph 88 liberally—that Ms. Coutts did not have other employees
perform extra tasks. See Fairweather Dep. at 60-61.
57
Friendly’s paragraph 33 asserts that Ms. Coutts “stated” this without specifying how many
times. DSMF ¶ 33. Ms. Fairweather denies the assertion to the extent it represents that Ms. Coutts
only made the statement once. PRDSMF ¶ 33. Ms. Fairweather testified to two specific occasions on
which Ms. Coutts made the statement, Fairweather Dep. at 107:13-17, and the Court has modified the
assertion of paragraph 33 to reflect this. The Court deems the modified assertion admitted under
Local Rule 56(f), (g).
Friendly’s qualifies Ms. Fairweather’s paragraph 68, noting that the other older employees
who heard this statement continue to work at Friendly’s. DRPSAMF ¶ 68 (citing Fairweather Dep. at
34:19-35:12; 91:3-9; 140:10-13; and Coutts Aff. ¶ 13). This is true, and the Court has noted it elsewhere,
but it does not render the assertion of Ms. Fairweather’s paragraph 68 inaccurate or misleading.
58
Ms. Fairweather interposes a qualified response, pointing to her deposition testimony that
“the behavior became worse ‘toward the end.’ Within the last six months of her employment.”
PRDSMF ¶ 34 (citing Fairweather Dep. at 59:1-60:25 and quoting Fairweather Dep. at 59:20). This
qualification does not demonstrate that the assertion of Friendly’s paragraph 34 is inaccurate or
misleading, nor does it demonstrate why Ms. Fairweather is otherwise unable to respond to paragraph
34. The Court deems Friendly’s paragraph 34 admitted under Local Rule 56(f), (g).
56

27

Coutts said to Ms. Fairweather: “[W]hy do you even bother to work, you don’t need
to.” DSMF ¶ 35; PRDSMF ¶ 35; PSAMF ¶¶ 75-76; DRPSAMF ¶¶ 75-76. In mid to
late January 2012, she said: “[L]isten up, all you older servers, you have to be on top
of your game now because I can no longer protect you.” DSMF ¶ 36; PRDSMF ¶ 36;
PSAMF ¶¶ 70, 72; DRPSAMF ¶¶ 70, 72.59 At least three people overheard this
comment, including Catherine Dipietrantonio and Susan Kallio.

DSMF ¶ 37;

PRDSMF ¶ 37. However, no one said anything in response, and Ms. Coutts did not
explain her comment further. DSMF ¶ 37; PRDSMF ¶ 37. In January 2012, Ms.
Coutts also stated to everyone who was present that “we are a whole new Friendly’s,
we are changing our image.”

DSMF ¶ 38; PRDSMF ¶ 38; PSAMF ¶¶ 63-64;

DRPSAMF ¶¶ 63-64.60

In Ms. Fairweather’s paragraph 71, she claims that “[Ms.] Coutts also told [Ms. Fairweather]
that Friendly’s was looking to change their image and wanted to hire younger wait staff.” PSAMF ¶
71 (citing “Fairweather dep. ex. 5, p. 3 answer to interrogatory 5”). Ms. Fairweather did not include
Exhibit 5 to her deposition with her statement of additional material facts. The Court does not credit
her paragraph 71 because she did not provide record support for the statement. D. ME. LOC. R. 56(c),
(f).
In Ms. Fairweather’s paragraph 73, she claims that “[Ms.] Coutts[’] admonition took place
shortly after Joanne Roberge, a server who was 63, was terminated in early January of 2012.” PSAMF
¶ 73. This sequence of events is clear from Ms. Fairweather’s statements that the Court has credited,
and repeating it as a separate statement of fact is unnecessary and repetitive. D. ME. LOC. R. 56(b).
A statement of facts is not the proper platform for Ms. Fairweather to make legal arguments.
60
In Ms. Fairweather’s paragraph 65, she claims that “[a]fter Coutts’ statement, the restaurant
started to hire younger servers and started to fire older servers.” PSAMF ¶ 65 (citing Fairweather
Dep. at 85:11-14). Ms. Fairweather did make this statement in her deposition, but it is both factually
and legally conclusory. Medina-Munoz, 896 F.2d at 8. To establish this conclusion as historical fact,
Ms. Fairweather would need to provide specific data points to support it. To establish it as a legal
conclusion, she would need to provide legal argument based on the historical facts. One conclusory
statement in her deposition is neither, and the Court does not credit it as fact. The Court will consider
her legal arguments in due course.
In Ms. Fairweather’s paragraph 69, she claims that “[Ms.] Coutts made comments reflecting
Friendly’s plan to get rid of older wait-staff as part of its desire to change its image.” PSAMF ¶ 69
(citing “Fairweather dep. ex. 5 p. 3 answer to interrogatory 5”). Ms. Fairweather did not include
Exhibit 5 from her deposition with her statement of additional material facts, so this assertion fails
under Local Rule 56(c), (f). Additionally, the statement is bald legal conclusion, not historical fact; the
Court would not credit it even if it were supported in some way. Medina-Munoz, 896 F.2d at 8. Finally,
59

28

In the months prior to her May 2012 termination, Ms. Coutts on two occasions
made Ms. Fairweather’s customers feel uncomfortable by checking the food that they
had ordered against what Ms. Fairweather had charged them. DSMF ¶ 39; PRDSMF
¶ 39; PSAMF ¶¶ 77-78; DRPSAMF ¶¶ 77-78. The two customers in question were
Ms. Fairweather’s husband and her close friend, Beth Mooney. DSMF ¶ 39; PRDSMF
¶ 39; PSAMF ¶¶ 77-78; DRPSAMF ¶¶ 77-78. In the second incident, Ms. Fairweather
claims that Ms. Coutts “screamed” at her for substituting sausage for bread on her
husband’s order. DSMF ¶ 40; PRDSMF ¶ 40; PSAMF ¶ 77; DRPSAMF ¶ 77. Ms.
Fairweather checked to see if Ms. Coutts was performing “random audits” throughout
the restaurant, but she only saw Ms. Coutts behaving that way towards Ms.
Fairweather’s tables. PSAMF ¶ 79; DRPSAMF ¶ 79.61
Steve Rupard became the shift supervisor and lead cook at the South Portland
restaurant in 2010 or 2011. PSAMF ¶ 142; DRPSAMF ¶ 142.62 Mr. Rupard was born
in 1966. DSMF ¶ 42; PRDSMF ¶ 42.63 During the year and a half prior to Ms.

Ms. Fairweather is not competent to testify to the state of mind of Friendly’s or any of its managers.
The Court does not credit her paragraph 69.
61
In paragraphs 80 through 83, Ms. Fairweather supports four assertions by citation to
“Fairweather dep. ex. 5, p. 3 answer to interrogatory 5.” PSAMF ¶¶ 80-83. The Court cannot locate
the record material to which Ms. Fairweather cites; neither party has supplied an Exhibit 5 to Ms.
Fairweather’s deposition transcript. The Court does not credit any of these paragraphs. D. ME. LOC.
R. 56(c), (f).
62
Friendly’s interposes a qualified response to Ms. Fairweather’s paragraph 142, asserting that
Mr. Rupard had no authority over Ms. Fairweather, including no authority to change her schedule or
terminate her employment. DRPSAMF ¶ 142 (citing Fairweather Dep. at 97:13-22 and Coutts Dep. at
33:12-22). The Court notes these facts elsewhere, which addresses the qualification. The Court deems
Ms. Fairweather’s paragraph 142 admitted under Local Rule 56(f), (g).
63
Friendly’s paragraph 45 states that “Plaintiff acknowledged that Rupard had no authority over
her, including the ability to terminate her or change her schedule.” DSMF ¶ 45 (citing Fairweather
Dep. at 97:13-22). Ms. Fairweather denies this statement, claiming that “Rupard was the shift
supervisor.” PRDSMF ¶ 45 (citing Rupard Dep. at 4:22-5:6). Ms. Fairweather denied that Mr. Rupard
had “any authority over you to, for example, terminate you, change your schedule, anything like that.”

29

Fairweather’s termination, Mr. Rupard called her names, including “Fairflogger,”
“Fairhooter,” and “Fairfucker.” DSMF ¶ 41; PRDSMF ¶ 41; PSAMF ¶¶ 143, 146;
DRPSAMF ¶¶ 143, 146. Ms. Fairweather complained to Ms. Coutts on two occasions,
at the end of 2011 and the beginning of 2012, which at least once caused the name
calling to subside for about a week. DSMF ¶ 43; PRDSMF ¶ 43; PSAMF ¶¶ 144, 148,
150-51, 154; DRPSAMF ¶¶ 144, 148, 150-51, 154. Despite this, Ms. Fairweather is
not aware of Ms. Coutts ever speaking to Mr. Rupard. PSAMF ¶ 153; DRPSAMF ¶
153.64 Ms. Fairweather also complained directly to Mr. Rupard about his behavior,
but he continued. PSAMF ¶¶ 145, 147; DRPSAMF ¶¶ 145, 147.65
The second time Ms. Fairweather complained to Ms. Coutts about the name
calling, Ms. Fairweather said that the behavior by Mr. Rupard had to stop or she
would file a complaint with Friendly’s corporate organization.

PSAMF ¶ 155;

DRPSAMF ¶ 155. Ms. Coutts then called Ms. Fairweather and Mr. Rupard into her

Fairweather Dep. at 97:19-22. At the same time, both Mr. Rupard and Ms. Fairweather identified Mr.
Rupard as a “shift supervisor.” Fairweather Dep. at 97:16-18; Rupard Dep. at 4:22-5:6. Neither
deponent explained what authority a “shift supervisor” had over Ms. Fairweather. The Court has not
included Friendly’s paragraph 45 because it is required to view the record evidence in the light most
favorable to Ms. Fairweather. The narrow issue is whether, as shift supervisor, Mr. Rupard’s actions
toward Ms. Fairweather may be attributable to Friendly’s. Looking at the evidence in the light most
favorable to her, the Court concludes that a “shift supervisor,” must have supervised the people on the
shift, including Mr. Fairweather.
64
Friendly’s objects to Ms. Fairweather’s paragraph 153 on the grounds that Ms. Fairweather’s
testimony cannot establish facts of which she was not aware, such as whether Ms. Coutts spoke to Mr.
Rupard. However, the assertion of paragraph 153 speaks precisely of what Ms. Fairweather knew,
not what actually happened. She is competent to testify to what she herself knew. FED. R. EVID. 602.
The Court overrules Friendly’s objection.
65
In her paragraph 145, Ms. Fairweather asserts that “[Ms.] Coutts also complained to [Mr.]
Rupard about his behavior but he continued.” PSAMF ¶ 145 (citing Fairweather Dep.at 27:1-5). The
cited portion of Ms. Fairweather’s deposition indicates that she herself complained to Mr. Rupard, not
that Ms. Coutts complained. See Fairweather Dep. at 27:1-5. The Court has adjusted the statement
to account for this.

30

office and told Mr. Rupard to stop the behavior. PSAMF ¶ 156; DRPSAMF ¶ 156.
After this meeting, Ms. Coutts thought that the behavior had stopped, but Mr.
Rupard continued to call Ms. Fairweather names. PSAMF ¶ 157; DRPSAMF ¶ 157.66
Ms. Coutts did not document her response to Ms. Fairweather’s complaint. PSAMF
¶ 158; DRPSAMF ¶ 158.67 Mr. Rupard also told Ms. Fairweather on four or five
occasions that she was so old that she probably served at the Last Supper. DSMF ¶
44; PRDSMF ¶ 44.
Ms. Fairweather claims that no one at Friendly’s other than Ms. Coutts and
Mr. Rupard treated her differently because of her age. DSMF ¶ 46; PRDSMF ¶ 46.68
While Ms. Fairweather believes that Ms. Coutts was trying to get her to quit, she
does not believe that Ms. Coutts was trying to force Ms. Dipietrantonio or Ms.

In her paragraph 157, Ms. Fairweather asserts that “[a]fter the second meeting, [Mr.] Rupard
continued with the name calling.” PSAMF ¶ 157 (citing Fairweather Dep. at 55:1-5). Friendly’s
interposes a qualified response that Ms. Fairweather does not claim Ms. Coutts was aware that the
name calling continued, and that Ms. Coutts herself testified that she thought it had stopped.
DRPSAMF ¶ 157 (citing Coutts Dep. at 53:4-24). The Court has adjusted paragraph 157 to include
this additional fact, and otherwise deems the paragraph admitted under Local Rule 56(f), (g).
67
Friendly’s interposes a qualified response to paragraph 158, pointing out again that Ms. Coutts
thought the situation was resolved. DRPSAMF ¶ 158. The Court has acknowledged this fact, but it
does not render the assertion of paragraph 158 inaccurate or misleading. The Court deems paragraph
158 admitted under Local Rule 56(f), (g).
68
Ms. Fairweather denies this assertion: “Friendly’s terminated Fairweather because of her
age.” PRDSMF ¶ 46 (citing PSAMF ¶¶ 1-170). There are several problems with this denial. First, it
cites for support 170 consecutive statements of material fact, which are not themselves record
material. This is improper under Local Rule 56(d). See supra note 31.
Ms. Fairweather’s attempt to controvert paragraph 46 also fails because her allegedly
controverting “fact” is actually a legal conclusion: that Friendly’s terminated her because of her age.
Ms. Fairweather may not establish a factual dispute by asserting a bald legal conclusion as “fact.”
Medina-Munoz, 896 F.2d at 8.
When asked at her deposition whether “anyone else at Friendly’s treated you differently
because of your age,” Ms. Fairweather replied “No.” Fairweather Dep. at 97:9-12. This is sufficient to
support the assertion of Friendly’s paragraph 46, and Ms. Fairweather has not produced any record
evidence to controvert her own statement. The Court deems paragraph 46 admitted under Local Rule
56(f), (g).
66

31

Kallio—servers who worked with Ms. Fairweather and were within a year of her
age—to quit. DSMF ¶ 47; PRDSMF ¶ 47.
10.

Ms. Fairweather’s Termination from Friendly’s

On May 10, 2012, Friendly’s received a guest complaint regarding Ms.
Fairweather through its online guest comment system. DSMF ¶ 48; PRDSMF ¶ 48.69
The complaint read:
I’d like to start off by saying that I've been coming to Friendly’s for years.
My waitress, Cathy, I have known for many years from when she used
to work at a different restaurant. Cathy is, and always was, a wonderful
waitress. She is attentive, kind, and very friendly. She is not the one
I’m complaining about today. We came in for breakfast today, like we
usually do, and as usual, we asked for Catherin [sic]. We were greeted
by another regular waitress there, Susan. First of all, she wasn’t very
friendly to us. We asked for Cathy, and she told us that it was not
Catherin’s [sic] “turn”. I suppose it was another waitresses [sic] turn?
Regardless, we asked for Cathy again. She, very rudely, pointed to I
guess Cathy’s area was and said out loud something about having a
“skip” on her all morning. I'm not sure what she meant, but it was VERY
clear to me that this Susan was not a pleasant person. It appeared very
much that she was bullying Catherin [sic], and I do not appreciate seeing
that. I asked Cathy why she puts up with this. She told me she didn't
want to cause a fuss. I don’t see why it should be a problem if I want to
sit in a particular waitresses [sic] area. I was very unhappy with how
Susan treated us.

Ms. Fairweather objects to paragraph 48 as hearsay and by reason of “authentication.”
PRDSMF ¶ 48. The Court denies the hearsay objection because the email is not offered for its truth
but to show Ms. Coutts’ knowledge and motive for terminating Ms. Fairweather. FED. R. EVID. 801(c).
Ms. Fairweather’s “authentication” objection is not well taken; she stipulated to the authenticity of
her personnel file, Stips. ¶ 14(b), and the complaint at issue here is in the file. DRPSAMF Attach. 1
(ECF No. 43).
Ms. Fairweather also denies Friendly’s paragraph 48, but her denial does not controvert the
assertion. See PRDSMF ¶ 48. Although Ms. Fairweather produces voluminous statements from Ms.
Fairweather, and one from Ms. Dipietrantonio, that dispute the substance of the customer’s complaint,
nothing she offers controverts the factual assertion that the customer sent the complaint as written
and Friendly’s received it. In other words, the fact that Ms. Fairweather disagrees with the customer’s
negative assessment of her behavior does controvert Friendly’s claim that the customer sent it. The
Court deems Friendly’s paragraph 48 admitted under Local Rule 56(f), (g).
69

32

We’ve known Catherin [sic] for many years. Cathy is a wonderful
waitress. She’s always kind, attentive, and is right there whenever we
need something.
DSMF ¶ 48; PRDSMF ¶ 48; PSAMF ¶¶ 102, 109; DRPSAMF ¶¶ 102, 109.
The incident reported in the complaint happened in the late morning of May
10, between 10:00 AM and 11:00 AM. DSMF ¶ 49; PRDSMF ¶ 49. Ms. Coutts was
at the restaurant at the time of the incident but testified that she did not see or hear
it. PSAMF ¶ 98; DRPSAMF ¶ 98. The customers who had sent the complaint were
a couple in their late 80s who had, in the months before the incident, become regulars
of Cathy Dipietrantonio and would eat at the South Portland Friendly’s
approximately once a week. DSMF ¶ 50; PRDSMF ¶ 50; PSAMF ¶ 112; DRPSAMF
¶ 112.70

While the incident was occurring at the front of the restaurant, Ms.

Dipietrantonio stood nearby. DSMF ¶ 51; PRDSMF ¶ 51.71 The same day, at the end
Friendly’s paragraph 50 reads: “The customers who had sent the complaint were a couple in
their seventies or eighties who were regulars of Cathy Dipietrantonio and would eat at Friendly’s
approximately once a week.” DSMF ¶ 50. Ms. Fairweather denies this assertion. PRDSMF ¶ 50
(citing DSMF Attach. 9 Dep. of Catherine L. Dipietrantonio, at 22:10-23:3, 23:11-12 (ECF No. 30)
(Dipietrantonio Dep.) and Fairweather Dep. at 78:7-9). Ms. Dipietrantonio testified that the man and
woman were in their “late ‘80s.” Dipietrantonio Dep. at 23:11-12. She testified that they had been
asking for her to be their waitress exclusively for “probably a couple of months.” Id. at 23:1-3. She
testified that he would come into the restaurant “[m]aybe once a week.” Id. at 23:4-7. Ms. Fairweather
agreed that the couple had not been coming to Friendly’s for “years” as the complaint claimed.
Fairweather Dep. at 78:3-9. However, Ms. Fairweather’s cited material does not otherwise controvert
the assertion. The Court has modified Friendly’s paragraph 50 to accommodate these qualifications,
and deems the modified assertion admitted under Local Rule 56(f), (g).
71
Friendly’s paragraph 51 states that “[Ms.] Dipietrantonio stood by silently, as she was afraid
of Plaintiff’s temper.” DSMF ¶ 51 (citing Dipietrantonio Dep. at 20:14-21:7). Ms. Fairweather denies
the assertion. PRDSMF ¶ 51 (citing Fairweather Dep. at 71:24-72:2, 72:7-12). In Ms. Fairweather’s
version of events, Ms. Dipietrantonio “screamed whatever, Sue” when Ms. Fairweather told her that
she had “three skips” on her following the encounter with the customers. Fairweather Dep. at 71:2472:2). Viewing this conflicting evidence in a light most favorable to Ms. Fairweather, the Court
concludes that it would be misleading to state that Ms. Dipietrantonio “stood by silently” because she
was “afraid of [Ms. Fairweather’s] temper.” DSMF ¶ 51. The Court has left those phrases out of
Friendly’s paragraph 51, and deems the modified assertion admitted under Local Rule 56(f), (g).
In paragraph 52, Friendly’s claims that “[a]fter the customers were seated, the husband asked
[Ms.] Dipietrantonio ‘Why did she treat me like that up there.’ Dipietrantonio responded ‘She is just
70

33

of her shift, Ms. Dipietrantonio complained to manager in training Katherine Burke
about this incident and asked Ms. Burke to relay her complaint to Ms. Coutts. DSMF
¶ 54; PRDSMF ¶ 54; PSAMF ¶¶ 99, 114-15; DRPSAMF ¶ 99, 114-15.72
Dipietrantonio wanted to talk to Ms. Coutts about it directly.

Ms.

PSAMF ¶ 115;

DRPSAMF ¶ 115. Ms. Burke relayed the incident to Ms. Coutts, and Ms. Coutts also
read the complaint submitted by the guest the next morning. DSMF ¶ 55; PRDSMF
¶ 55; PSAMF ¶ 101; DRPSAMF ¶ 101.73

mad at me today. She’s not mad at you. I’m really sorry she treated you like that.’” DSMF ¶ 52
(quoting Dipietrantonio Dep. at 26:9-17). In paragraph 53, Friendly’s claims that “[t]he customer also
noticed that Dipietrantonio was visibly upset and said to her ‘You shouldn’t have to put up with
somebody treating you like that at work.’” DSMF ¶ 53 (quoting Dipietrantonio Dep. at 33:11-17). Ms.
Fairweather objects to both of these statements as hearsay, PRDSMF ¶¶ 52-53, and Friendly’s does
not provide any explanation for why they are not. See Def.’s Reply; DRPSAMF. Hearsay statements
are not competent summary judgment evidence. Dávila v. Corporación de P.R. Para la Difusión
Pública, 498 F.3d 9, 17 (1st Cir. 2007). Because the husband’s statements, reported by Ms.
Dipietrantonio, appear to be out of court statements offered for the truth of the matter asserted, FED.
R. EVID. 801(c), not subject to any exceptions to the rule against hearsay, FED. R. EVID. 802-804, the
Court has not considered them.
72
Ms. Fairweather denies Friendly’s paragraph 54, claiming that “Burke did not even work May
10 or May 11.” PRDSMF ¶ 54 (citing Aff. of Guy D. Loranger Attach. 6 Print Schedule, at FICL 001176
(ECF No. 37) (Work Schedules)). Ms. Fairweather is correct that the work schedule does not show Ms.
Burke on either May 10 or May 11, 2012. However, Ms. Fairweather herself testified that Ms. Burke
was the management staff member present during the morning shift on May 10, 2012. Fairweather
Dep. 2 at 75:16-24. Even drawing all reasonable inferences in Ms. Fairweather’s favor, the Court
cannot conclude that the printed work schedule controverts Ms. Fairweather’s own testimony that Ms.
Burke was present. The Court deems Friendly’s paragraph 54 admitted under Local Rule 56(f), (g).
Friendly’s interposes a qualified response to Ms. Fairweather’s paragraph 99, but the
qualification does not render the assertion of either Ms. Fairweather’s paragraph 99 or Friendly’s
paragraph 58 inaccurate or misleading. See DRPSAMF ¶ 99. The Court deems Ms. Fairweather’s
paragraph 99, as rephrased above, admitted under Local Rule 56(f), (g).
Finally, the Court does not credit Ms. Fairweather’s paragraph 100, in which she claims that
“[Ms.] Burke could not have told [Ms.] Coutts what took place as she did not work on May 10th.”
PSAMF ¶ 100 (citing Work Schedules at FICL 001176).
73
Ms. Fairweather raises a hearsay objection to Friendly’s paragraph 55. PRDSMF ¶ 55. The
Court overrules this objection because the statement is offered, not for the truth, but to show how Ms.
Coutts came to learn of the complaint. Ms. Fairweather also denies paragraph 55, again arguing that
the work schedule does not show Ms. Burke working on May 10 or May 11. The Court has already
determined that Ms. Fairweather’s deposition testimony establishes that Ms. Burke did work the
morning shift on May 10, and the work schedule does not controvert that testimony. Supra note 72
(discussing PRDSMF ¶ 54). The Court deems Friendly’s paragraph 55 admitted under Local Rule
56(f), (g).

34

Ms. Newell and Mr. Mosher also read the guest complaint. DSMF ¶ 56;
PRDSMF ¶ 56. The following day, Ms. Coutts met with Ms. Newell and Mr. Mosher
during a district meeting, and they informed Ms. Coutts that she needed to look into
the incident. DSMF ¶ 57; PRDSMF ¶ 57; PSAMF ¶¶ 106-07; DRPSAMF ¶¶ 106-107.
Ms. Coutts next spoke with Ms. Dipietrantonio, because she was involved in the
incident, and Ms. Dipietrantonio confirmed the substance of the guest complaint.
DSMF ¶ 58; PRDSMF ¶ 58; PSAMF ¶ 108; DRPSAMF ¶ 108.74 Ms. Coutts spoke
with other employees who had been on that day, including Ms. Burke and Ms. Kallio;
none had seen anything, although Ms. Kallio had heard her name mentioned while
she walked past the podium. DSMF ¶ 59; PRDSMF ¶ 59; PSAMF ¶¶ 113, 116, 119;
DRPSAMF ¶¶ 113, 116, 119.75 Ms. Coutts did not speak with Ms. Fairweather about

Ms. Fairweather denies Friendly’s paragraph 58, arguing that Ms. Dipietrantonio’s account of
the conversation with Ms. Coutts is “inconsistent with the customer complaint.” PRDSMF ¶ 58. She
also claims that “[Ms.] Coutts’ testimony describing [Ms.] Dipietrantonio’s version of events is
inconsistent with [Ms.] Dipietrantonio’s testimony.” Id. The disputed testimony of Ms. Coutts, Coutts
Dep. at 32:5-17, and of Ms. Dipietrantonio, Dipietrantonio Dep. at 13:18-14:14, is too lengthy to
reproduce here. However, after review, the Court concludes that their testimony supports the
assertion that Ms. Dipietrantonio confirmed the “substance” of the complaint. Certain details vary—
mostly the length of time the customer had known Ms. Dipietrantonio—but the gist of the events of
May 10, 2010 is the same. Because Ms. Fairweather has not controverted the assertion of paragraph
58, the Court deems her denied response admitted under Local Rule 56(f), (g).
75
Friendly’s paragraph 59 asserts that “Ms. Coutts spoke with other employees who had been
on that day, including Mr. Rupard, Ms. Burke, and Ms. Kallio, but none of them had seen anything.”
DSMF ¶ 59 (citing Coutts Dep. at 33:12-22 and Dipietrantonio Dep. at 27:16-29:6, 35:14-17). Ms.
Fairweather denies Friendly’s paragraph 59. She continues to argue that Ms. Burke did not work on
May 10, 2010, but this denial fails for the reasons discussed above. Supra notes 72-73 (discussing
PRDSMF ¶¶ 54-55). Mr. Rupard testified that nobody asked him if he heard or witnessed anything
about the incident, Rupard Dep. 2 at 22:16-18, so the Court does not credit that portion of the assertion.
Ms. Fairweather also points out that Ms. Kallio “told [Ms.] Dipietrantonio that she didn’t hear the
incident except for her name being mentioned.” PRDSMF ¶ 59 (citing Dipietrantonio Dep. at 27:1628:5). The assertion of paragraph 59 is that “none of them had seen anything,” and the Court agrees
that this statement is slightly misleading without acknowledging that Ms. Kallio heard her name
being mentioned. The Court has adjusted paragraph 59 to include this detail, and otherwise deems
the modified assertion admitted under Local Rule 56(f), (g).
74

35

the incident, and Ms. Fairweather is not aware of Friendly’s undertaking any
investigation of the incident on May 10. PSAMF ¶ 117; DRPSAMF ¶ 117.76 Mr.
Rupard, who was working the grill the morning of the incident and was not in a
position to witness it, testified that no one asked if he had heard or witnessed
anything. PSAMF ¶ 118; DRPSAMF ¶ 118.77 After speaking with Ms. Dipietrantonio
and the other employees, Ms. Coutts spoke with Ms. Newell and informed her that
her investigation had confirmed the substance of the complaint.

DSMF ¶ 60;

PRDSMF ¶ 60; PSAMF ¶¶ 123-24; DRPSAMF ¶¶ 123-24.78 Ms. Coutts did not
document her investigation. PSAMF ¶ 120; DRPSAMF ¶ 120.
On Monday, May 14, 2012, Ms. Newell spoke with Ms. Dipietrantonio to
confirm the substance of the complaint. DSMF ¶ 64; PRDSMF ¶ 64.79 Ms. Coutts

Friendly’s interposes a qualified response that Ms. Coutts did speak with Ms. Fairweather
about the incident on May 14. DRPSAMF ¶ 117 (citing PSAMF ¶¶ 127, 129-31 and Fairweather Dep.
at 63:6-65:3, 67:5-18). The Court has noted this fact elsewhere, but it does not render the assertion of
Ms. Fairweather’s paragraph 117 inaccurate or misleading. The Court deems the paragraph admitted
under Local Rule 56(f), (g).
77
Ms. Fairweather’s paragraph 118 states that “Rupard, who also worked the morning of the
incident, testified no one asked if he had heard or witnessed anything.” PSAMF ¶ 118. Friendly’s
interposes a qualified response that Mr. Rupard was working the grill that morning and was not in a
position to witness the incident. DRPSAMF ¶ 118 (citing Rupard Dep. 2 at 20:13-21:8). Mr. Rupard’s
testimony supports this qualification, and omitting would render paragraph 118 slightly misleading.
The Court includes the qualification.
78
Ms. Fairweather denies that Ms. Coutts’ investigation “confirmed the substance of the
complaint.” PRDSMF ¶ 60 (citing DSMF ¶¶ 48, 58-59). This denial fails for two reasons. First, the
denial fails to cite record material, violating Local Rule 56(d), (f). It also fails because the Court has
already determined that Ms. Dipietrantonio did confirm the substance of the complaint. Supra note
74 (discussing PRDSMF ¶ 58).
79
Ms. Fairweather denies this statement, claiming that “[Ms.] Newell testified that she did not
recall if she spoke to [Ms.] Dipietrantonio.” PRDSMF ¶ 64 (citing Newell Dep. at 44:10-12). In the
passage cited by Ms. Fairweather, Ms. Newell had the following exchange with the questioner:
76

Q:
Okay. And you didn’t do anything personally that you recall to look into this
complaint?

36

and Ms. Newell then called Ms. Fairweather in to the restaurant on her day off.
PSAMF ¶ 125; DRPSAMF ¶ 125. Ms. Coutts and Ms. Newell informed her of the
incident. DSMF ¶ 61; PRDSMF ¶ 61; PSAMF ¶ 126; DRPSAMF ¶ 126. During this
meeting, Ms. Coutts presented Ms. Fairweather with a copy of the complaint and
asked her to explain it. DSMF ¶ 62; PRDSMF ¶ 62; PSAMF ¶ 127; DRPSAMF ¶ 127.
Ms. Fairweather also saw the termination paper on the folder on the table and
became very upset. PSAMF ¶ 128; DRPSAMF ¶ 128.
Ms. Fairweather responded that she had no idea what the complaint was
about. PSAMF ¶ 129; DRPSAMF ¶ 129. She told Ms. Coutts and Ms. Newell that
the incident did not happen. PSAMF ¶ 129; DRPSAMF ¶ 129. She also stated that
“it didn’t happen that way” and that “she didn’t talk to people like . . . that.” DSMF
¶ 62; PRSDMF ¶ 62; PSAMF ¶¶ 130-31; DRPSAMF ¶¶ 130-31; Coutts Dep. at 38:78, 14-15.80 At the end of the meeting, Ms. Fairweather was given her termination

A:
I actually talked to Cathy [Dipietrantonio]. Like I said, I believe I talked to
Cathy. I actually don’t remember. It was either me or Bonnie [Coutts].
Newell Dep. at 44:8-12. However, Ms. Dipietrantonio, when asked “[a]fter you spoke to Bonnie Coutts
about the incident, did you speak to anybody else in management about the incident?” responded:
“Patty Newell came in in the morning, one morning . . . and she called me in the office and she said, I
want to know what happened, and I told her, so I did talk to Patty Newell.” Dipietrantonio Dep. at
40:20-41:3. Even viewing this testimony in a light most favorable to Ms. Fairweather, the Court
concludes that Ms. Newell did, in fact, talk to Ms. Dipietrantonio about the incident. Ms. Newell’s
affirmative but slightly uncertain statement is bolstered by Ms. Dipietrantonio’s own testimony.
Because Ms. Fairweather has not controverted the assertion of Friendly’s paragraph 64, the Court
deems the paragraph admitted under Local Rule 56(f), (g).
80
Friendly’s paragraph 62 states that “[Ms. Fairweather] stated that she did not remember any
of it and failed to provide her side of the story to [Ms.] Coutts and [Ms.] Newell.” DSMF ¶ 62 (citing
Fairweather Dep. at 65:1-3, 67:5-18. Ms. Fairweather denies that she failed to give her side of the
story. PRDSMF ¶ 62 (citing Coutts Dep. at 38:5-15). Ms. Fairweather is correct that Ms. Coutts
testified she gave some qualification for the event (“it didn’t happen that way,” Coutts Dep. at 38:7-8;
“she didn’t talk to people like . . . that,” id. at 38:14-15), but Friendly’s is correct that Ms. Fairweather,
when asked “And you didn’t explain your side of the story at the time?” replied “No.” Fairweather Dep.
at 67:10-12. Viewing the passages together in a light most favorable to Ms. Fairweather, and drawing

37

notice. DSMF ¶ 63; PRDSMF ¶ 63; PSAMF ¶ 133; DRPSAMF ¶ 133. The reason
given for the termination was “Rude/discourteous treatment of Guests/co-workers.”
DSMF ¶ 63; PRDSMF ¶ 63. Ms. Coutts did not investigate the incident further.
PSAMF ¶ 132; DRPSAMF ¶ 132. Ms. Coutts performed the investigation, but Ms.
Newell ultimately made the decision to terminate Ms. Fairweather’s employment.
DSMF ¶ 65; PRDSMF ¶ 65.
Ms. Fairweather does not deny that the incident in question happened;
however, she has a different recollection of the incident. DSMF ¶ 66; PRDSMF ¶
66.81 At the beginning of the shift, Ms. Fairweather was the “supervisor server”; later
in the shift, that responsibility passed to Steve Rupard. PSAMF ¶ 90; DRPSAMF ¶
90.82 On May 10, 2012, the following employees worked the morning shift: Steve

all reasonable inferences in her favor, the Court concludes that she at least said the words that Ms.
Coutts recounted, and it would be inaccurate to state that she “failed to provide her side of the story.”
The Court has adjusted Friendly’s paragraph 62 to reflect what Ms. Coutts recounted from the
interview, and otherwise deems the paragraph admitted under Local Rule 56(f), (g).
81
Ms. Fairweather denies this statement, claiming that “[Ms.] Fairweather[] does deny that the
incident did occur as described by Dipietrantonio.” PRDSMF ¶ 66 (citing Fairweather Dep. at 70-72).
This is simply a rephrasing of assertion of Friendly’s paragraph 66, and does not controvert the
statement, nor does the record material that Ms. Fairweather cites. See Fairweather Dep. at 70-72.
Because Ms. Fairweather has not controverted the assertion of Friendly’s paragraph 66, the Court
deems the paragraph admitted under Local Rule 56(f), (g).
82
Ms. Fairweather’s paragraph 90 claims only that “[Ms.] Fairweather was breakfast server’s
supervisor.” PSAMF ¶ 90 (citing Rupard Dep. 2 15:13-25). Friendly’s interposes a qualified response,
asserting that Mr. Rupard became the supervisor after the first hour and a half of the shift. DRPSAMF
¶ 90 (citing Fairweather Dep. at 56:10-25 and Rupard Dep. 2 at 15:21-16:20). The testimony is
somewhat murky on this point, and the distinction does not appear to be highly relevant. However,
the Court has included the qualification.
In Ms. Fairweather’s paragraph 89, she claims that “[t]he morning core crew consisted of [Ms.]
Fairweather, [Ms.] Dipietrantonio[,] and [Ms.] Kallio. The morning core group got along great.”
PSAMF ¶ 89 (citing Rupard Dep. 2 at 16:23-17:2). The cited deposition testimony does not mention
any names other than Ms. Fairweather. Furthermore, Mr. Rupard did not testify that the “morning
core group” got along great; he testified that “I got along great,” but that Ms. Fairweather got along
“[s]ometimes good, sometimes not so good.” Rupard Dep. 2 at 17:2-5 (emphasis added). Ms.
Fairweather’s cited evidence does not support the assertion of her paragraph 89, and the Court does
not credit it. D. ME. LOC. R. 56(c), (f).

38

Rupard, manager of the day from 6:30 a.m. to 9:00 a.m. and on the grill from 9:00
a.m. to 2:00 p.m.; Ms. Dipietrantonio, server; Ms. Kallio, server; Ms. Fairweather,
server; Aaron Bourne, grill; Clinton Jackson, grill; and Ms. Coutts, manager of the
day from 9:00 a.m. to 6:00 p.m. PSAMF ¶ 91; DRPSAMF ¶ 91.83 Although Ms. Burke
was not scheduled to work on May 10, Ms. Fairweather and Ms. Dipietrantonio both
testified that Ms. Burke worked that morning. PSAMF ¶ 92; DRPSAMF ¶ 92.84
Ms. Fairweather claims that she greeted the complaining customers after they
came in and that they asked to sit in Ms. Dipietrantonio’s section. DSMF ¶ 67;
PRDSMF ¶ 67; PSAMF ¶ 93; DRPSAMF ¶ 93.85 She claims that her words to the
customers were: “She [Ms. Dipietrantonio] just got sat, would you care to try Sue

Friendly’s objects to Ms. Fairweather’s paragraph 91, claiming that the evidence has not been
properly authenticated. DRPSAMF ¶ 91. While that is technically true, the Rule 56 standard requires
a “party asserting that a fact cannot be . . . genuinely disputed must support the assertion by . . .
showing that . . . an adverse party cannot produce admissible evidence to support the fact.” FED. R.
CIV. P. 56(c)(1). Here, Friendly’s has not shown that Ms. Fairweather cannot produce the evidence in
admissible form; Ms. Fairweather could subpoena a Friendly’s records custodian to authenticate the
records. The Court overrules Friendly’s objection.
84
Friendly’s raises the same authentication objection that it proffered for Ms. Fairweather’s
paragraph 91, see DRPSAMF ¶ 92, and the Court overrules it for the same reason. See supra note 83
(discussing DRPSAMF ¶ 91).
In her paragraph 92, Ms. Fairweather claims that Ms. Burke did not work on May 10, 2012.
PSAMF ¶ 92 (citing Work Schedules at FICL 001176). Friendly’s denies this claim, pointing out that
Ms. Fairweather and Ms. Dipietrantonio both testified that Ms. Burke did actually work the morning
of May 10. DRPSAMF ¶ 92 (citing Fairweather Dep. at 70:3-12; Fairweather Dep. 2 at 75:16-22;
Dipietrantonio Dep. at 27:16-29:25, 38:2-39:16). The Court agrees; the deponents consistently testified
that Ms. Burke was working that morning. Even viewing all the evidence in a light most favorable to
Ms. Fairweather, the Court does not conclude that Ms. Burke did not work on the morning of May 10.
Rather, it concludes that she was not scheduled to work that morning, but did anyway, as managers
of a business often do. The Court has adjusted Ms. Fairweather’s paragraph 92 to reflect that.
85
Friendly’s interposes a qualified response to Ms. Fairweather’s paragraph 93, pointing out that
this is Ms. Fairweather’s version of events. PSAMF ¶ 93. This is true, but it does not require the
Court to adjust the assertion of Ms. Fairweather’s paragraph 93. The Court deems Ms. Fairweather’s
paragraph 93 admitted under Local Rule 56(f), (g).
83

39

Kallio, it’s her turn.” DSMF ¶ 67; PRDSMF ¶ 67; PSAMF ¶ 94; DRPSAMF ¶ 94.86
She claims that the customers responded: “No, we would really like to sit in Cathy’s
section.” DSMF ¶ 67; PRDSMF ¶ 67; PSAMF ¶ 95; DRPSAMF ¶ 95.87 She claims
that she then reached under the podium to grab the menus, and one of the customers
stated in a “hurry up and seat me” tone of voice: “We don’t need those.” DSMF ¶ 68;
PRDSMF ¶ 68; PSAMF ¶¶ 95-96; DRPSAMF ¶¶ 95-96.

According to Ms.

Fairweather, the customers started walking into the restaurant, and she said “Okay,
she’s that whole side over there.”

DSMF ¶ 69; PRDSMF ¶ 69; PSAMF ¶ 96;

DRPSAMF ¶ 96. In her version, as Ms. Dipietrantonio came around the podium, Ms.
Fairweather said to her “Cathy, you have three skips on you now,” and Ms.
Dipietrantonio screamed “Whatever, Sue.” DSMF ¶ 70; PRDSMF ¶ 70; PSAMF ¶ 97;
DRPSAMF ¶ 97.88
To the extent the complaining guest claimed to have been patronizing the
South Portland Friendly’s restaurant “for years,” his complaint is inaccurate.

Friendly’s interposes a qualified response to Ms. Fairweather’s paragraph 94, DRPSAMF ¶ 94,
but the Court deems the paragraph admitted under Local Rule 56(f), (g). See supra note 85 (discussing
DRPSAMF ¶ 93).
87
Friendly’s interposes qualified responses to Ms. Fairweather’s paragraphs 95 and 96,
DRPSAMF ¶¶ 95-96, but the Court deems the paragraphs admitted under Local Rule 56(f), (g). See
supra note 85 (discussing DRPSAMF ¶ 93).
88
Friendly’s paragraph 70 claims only that Ms. Dipietrantonio “responded ‘Whatever, Sue.’”
DSMF ¶ 70. Ms. Fairweather interposes a qualified response, pointing out that Ms. Fairweather
testified that Ms. Dipietrantonio “screamed” these words. PRDSMF ¶ 70 (citing Fairweather Dep. at
72:1-2). Since paragraph 70, like the preceding paragraphs, represents Ms. Fairweather’s recollection
of the events, the Court adjusted the paragraph to include the detail that Ms. Dipietrantonio
“screamed.” The Court otherwise deems Friendly’s paragraph 70 admitted under Local Rule 56(f), (g).
Friendly’s interposes a qualified response to Ms. Fairweather’s paragraph 97, DRPSAMF ¶ 97,
but the Court deems the paragraph admitted under Local Rule 56(f), (g). See supra note 85 (discussing
DRPSAMF ¶ 93).
86

40

PSAMF ¶ 103; DRPSAMF ¶ 103.89 In Ms. Fairweather’s opinion, the complaining
customer was also incorrect that she was not friendly. PSAMF ¶ 104; DRPSAMF ¶
104.90 Ms. Fairweather believes the customer was also incorrect that she “very rudely
pointed to [Ms. Dipietrantonio’s] area.” PSAMF ¶ 105; DRPSAMF ¶ 105.91 Ms.
Dipietrantonio does not know the name of the customer who asked for her, and
testified that the customer began asking for her personally a few months before the
incident. PSAMF ¶¶ 110-11; DRPSAMF ¶¶ 110-11.92

In paragraph 103, Ms. Fairweather claims that “[t]he assertion [of her paragraph ¶ 102, that
the complaining customer had been going to Friendly’s for years,] is inaccurate.” PSAMF ¶ 103 (citing
Fairweather Dep. at 78:7-9). Friendly’s objects to this statement as irrelevant, DRPSAMF ¶ 103, but
the Court overrules that objection. However, the assertion is broader than the record supports. In the
passage cited by Ms. Fairweather, she responded “No” when asked: “[G]iven your knowledge of the
guest, do you agree [that the guest had been coming to Friendly’s ‘for years’]?” Fairweather Dep. at
78:7-9. Even viewing this question and response in a light most favorable to Ms. Fairweather, the
Court cannot make conclusions about the guest’s activity beyond Ms. Fairweather’s personal
knowledge. The guest’s statement is ambiguous; he could have meant that he had been going to
Friendly’s franchise restaurants for years, or that he had been going to the South Portland Friendly’s
for years. The Court has rephrased the assertion of paragraph 103 to reflect that the statement was
inaccurate only insofar as it claimed that he had been going to the South Portland Friendly’s “for
years”—which is the extent of Ms. Fairweather’s personal knowledge. The Court deems the modified
assertion admitted under Local Rule 56(f), (g).
90
Ms. Fairweather’s paragraph 104 claims that “[t]he customer’s assertion that [Ms.]
Fairweather very rudely pointed to [Ms. Dipietrantonio’s] area is . . . not accurate.” PSAMF ¶ 104.
Friendly’s objects to Ms. Fairweather’s paragraph 104 as irrelevant. DRPSAMF ¶ 104. The Court
overrules the relevance objection, but the statement in its original form is conclusory. The Court has
rephrased the assertion to show that it is Ms. Fairweather’s subjective assessment of the incident, and
deems the modified assertion admitted under Local Rule 56(f), (g).
91
Ms. Fairweather’s paragraph 105 claims that “[t]he customer’s assertion that [Ms.]
Fairweather very rudely pointed to [Ms.] Dipietrantonio’s] area is also not accurate.” PSAMF ¶ 105
(citing Fairweather Dep. at 82). Friendly’s objects to Ms. Fairweather’s paragraph 105 on relevancy
grounds, DRPSAMF ¶ 105, but the Court overrules that objection. However, Ms. Fairweather’s
version of paragraph 105 is conclusory, so the Court has altered it to show that it is her subjective
perception. The Court deems the modified paragraph admitted under Local Rule 56(f), (g).
92
Friendly’s objects to Ms. Fairweather’s paragraph 110 and 111, arguing that Ms.
Dipietrantonio’s recollection of the customer’s name and the length of time he had been asking for her
are both immaterial to the analysis of whether Friendly’s terminated Ms. Fairweather because of her
age. DRPSAMF ¶¶ 110-11. What matters to the analysis, in Friendly’s view, is the fact that Ms.
Fairweather’s supervisors received a serious customer complaint—not whether the customer was
accurate in all the details of his complaint. Id. The Court acknowledges this distinction, and will give
these facts the appropriate weight in its legal analysis. There is at least a colorable argument that
the facts are somewhat relevant to whether Ms. Fairweather’s termination was pretextual, so the
89

41

This complaint, which resulted in Ms. Fairweather’s termination, was the only
customer

complaint

against

her alleging

rudeness,

received

through

the

computerized system, of which she was aware. PSAMF ¶ 27; DRPSAMF ¶ 27.93 At
the time of her termination, Ms. Fairweather was not on “final warning.” PSAMF ¶
134; DRPSAMF ¶ 134.94 She also thought that discourteous treatment of a guest
would not result in immediate termination. PSAMF ¶ 26; DRPSAMF ¶ 26.95 She

Court overrules the relevance objection and deems Ms. Fairweather’s paragraphs 110 and 111
admitted under Local Rule 56(f), (g).
93
Ms. Fairweather’s paragraph 27 claims that “[t]he complaint which resulted in her
termination was the only customer complaint [Ms.] Fairweather ever received regarding an allegation
of being rude.” PSAMF ¶ 27 (citing Fairweather Dep. 2 at 128:20-25 and Fairweather Dep. at 129:16). Friendly’s interposes a qualified response, claiming that the word “received” is ambiguous and that
Ms. Fairweather had been “written up on several occasions for rude behavior in the presence of
customers prior to this incident.” DRPSAMF ¶ 27 (citing Fairweather Dep. at 117:21-122:17; Note to
File; DSMF Attach. 5 Friendly’s Restaurant Employee Discipline Notice (ECF No. 30); Stips. ¶ 14; and
Fairweather Personnel File at FICL 000055-56). The Court agrees that “received” is vague, and that
Ms. Fairweather’s testimony spoke to rudeness complaints, received through the computerized system,
of which she was aware. Fairweather Dep. 2 at 128:20-25 and Fairweather Dep. at 129:1-6. The Court
has adjusted the assertion of Ms. Fairweather’s paragraph 27 to more precisely track the summary
judgment record, and deems the modified assertion admitted under Local Rule 56(f), (g).
94
Friendly’s interposes a qualified response that rudeness to a guest is grounds for immediate
termination without a “final warning.” DRPSAMF ¶ 134 (citing Fairweather Dep. at 136:12-23 and
Employee Manual at 4-5). The Court has elsewhere acknowledged this fact, but it does not render the
assertion of Ms. Fairweather’s paragraph 134 inaccurate or misleading. The Court deems paragraph
134 admitted under Local Rule 56(f), (g).
95
In Ms. Fairweather’s paragraph 26, she claims, as a fact, that “[d]iscourteous treatment to a
guest does not result in immediate termination.” PSAMF ¶ 26 (citing Fairweather Dep. at 136:24-25
and Fairweather Dep. 2 at 137:1-2). Friendly’s denies this statement. DRPSAMF ¶ 26 (citing
Fairweather Dep. at 136:24-25 and Fairweather Dep. 2 at 137:1-2). Ms. Fairweather was asked: “[D]id
you understand at the time of your termination that discourteous treatment to a guest could result in
immediate termination?” Fairweather Dep. at 136:24-25; Fairweather Dep. 2 at 137:1. Her response
to this query was: “No.” Fairweather Dep. 2 at 137:2. Elsewhere, Ms. Fairweather acknowledged that
she had reviewed the Employee Manual, Fairweather Dep. at 132:18-133:17, which stated
unequivocally that “[d]iscourteous treatment of a restaurant Guest, including offensive or abusive
language that can be overheard by a Guest” would “likely result in termination of employment upon
the first offense.” Employee Manual at 4. Viewing this evidence in a light most favorable to Ms.
Fairweather, and drawing all reasonable inferences in her favor, the Court concludes it was Ms.
Fairweather’s subjective belief that she would not be immediately terminated for discourteous
treatment a guest. However, the Court cannot conclude on this evidence alone that this was Friendly’s
actual policy, in word or in practice. The Court has modified paragraph 26 to reflect that it represents
Ms. Fairweather’s subjective belief.

42

believes that Ms. Dipietrantonio “trumped up” the complaint against her; though she
“[doesn’t] understand why she would say any of this,” she “think[s] maybe she wanted
my hours or her daughter wanted them.” DSMF ¶ 71; PRDSMF ¶ 71; Fairweather
Dep. at 66:9-10, 15-18.96
11.

Friendly’s Hiring Practices Following Ms. Fairweather’s
Termination; Former Co-Workers’ Perceptions of the
Work Environment

Following Ms. Fairweather’s termination, the “regular” servers who work the
breakfast and lunch shifts continue to be Ms. Dipietrantonio and Ms. Kallio, as well
as Nicole Dipietrantonio and Patrick Phippin. DSMF ¶ 81; PRDSMF ¶ 81; PSAMF
¶ 159; DRPSAMF ¶ 159.97 Nicole Dipietrantonio is Cathy Dipietrantonio’s twentythree year old daughter. DSMF ¶ 82; PRDSMF ¶ 82; PSAMF ¶ 160; DRPSAMF ¶
150. She was born in 1989, and Friendly’s hired her on February 27, 2012. DSMF ¶
82; PRDSMF ¶ 82; PSAMF ¶ 161; DRPSAMF ¶ 161. Mr. Phippin was born in 1971,
and Friendly’s hired him on November 15, 2001. DSMF ¶ 83; PRDSMF ¶ 83.

Friendly’s paragraph 71 claims that “[Ms.] Fairweather speculates that [Ms.] Dipietrantonio
manipulated the customers to get them to trump up the facts in the complaint so that [Ms.]
Dipietrantonio could get [Ms. Fairweather’s] hours either for herself or her [Ms.] Dipietrantonio’s
daughter, who was also employed at the restaurant.” DSMF ¶ 71 (citing Fairweather Dep. 66:9-67:4).
Ms. Fairweather denies this statement, claiming that she “testified that ‘I don’t understand why she
would say any of this.’” PRDSMF ¶ 71 (citing Fairweather Dep. at 66:15-16). The parties both cite the
same passage of Ms. Fairweather’s deposition transcript, and close examination reveals that each side
has selected fragments that support its own interpretation. The Court has recited portions of Ms.
Fairweather’s statements that fairly represent what she actually said in her deposition.
97
Ms. Fairweather denies that Mr. Phippin is a regular; she claims that the most recent work
schedules show him working only one morning per week. PRDSMF ¶ 81 (citing Work Schedules at
FICL 001233-35). However, Mr. Phippin’s name does not appear in the pages cited; page FICL 001234
is missing from the exhibit that Ms. Fairweather submitted with her reply statement of facts. The
missing page may indeed show that Mr. Phippin only works one day per week, but without the page
the Court is unable to determine whether it controverts the assertion of Friendly’s paragraph 81.
Friendly’s supports paragraph 81 with record material, DSMF ¶ 81 (citing Rupard Dep. 2 at 5:106:24), and the Court therefore deems the paragraph admitted under Local Rule 56(f), (g).
96

43

Ms. Fairweather believes that two younger servers were hired at the South
Portland Friendly’s in 2012 prior to her termination. DSMF ¶ 84; PRDSMF ¶ 84.
These servers were hired for the evening shift, not the breakfast/lunch shift that Ms.
Fairweather worked. DSMF ¶ 84; PRDSMF ¶ 84.98 No younger servers were hired
for the breakfast/lunch shift while Ms. Fairweather was still employed in 2012.
DSMF ¶ 84; PRDSMF ¶ 84. However, on at least two occasions, May 5 and 6, 2012,
Nicole Dipietrantonio worked a morning shift. DSMF ¶ 84; PRDSMF ¶ 84.
In 2012, the South Portland restaurant hired twenty-seven food servers.
PSAMF ¶ 84; DRPSAMF ¶ 84.99 Twenty-three of these were younger than thirty-five
years old, and twelve were between twenty and twenty-nine years old. PSAMF ¶ 84;
DRPSAMF ¶ 84.
While servers hired following Ms. Fairweather’s termination in 2012 were
generally younger than her, they were hired primarily for evening shifts, which Ms.

Ms. Fairweather denies the statement on the basis that Nicole Dipietrantonio worked two
morning shifts on May 5 and 6. PRDSMF ¶ 84 (citing Work Schedules at FICL 001179). The Court
has added a sentence acknowledging the May 5 and 6 shifts. However, the fact that the younger Ms.
Dipietrantonio worked them does not controvert Ms. Fairweather’s own assertion that the younger
workers hired during her employment were hired for evening shifts. Fairweather Dep. at 89:6-25,
90:3-17. Even viewed in a light most favorable to Ms. Fairweather, the evidence shows only that Ms.
Dipietrantonio “swung” into a morning shift on two occasions in May.
99
Ms. Fairweather’s paragraph 84 states: “In 2012, the South Portland restaurant hired 27 food
servers, 26 . . . of the 27 were younger than 35 years old and 24 of the 27 were in their twenties.”
PSAMF ¶ 84 (citing Employee Census). Friendly’s denies this paragraph because “[Ms. Fairweather’s]
math is wrong and deceptively stated.” DRPSAMF ¶ 84 (citing Employee Census). Close examination
of the records reveals that Friendly’s hired a total of twenty-seven employees in the “SW” job code,
which the Court takes to be a server. Employee Census. Twenty-three of these, not twenty-six, were
less than thirty-five years old. Id. Twelve, not twenty-four, were in their twenties. The Court has
adjusted the assertion of Ms. Fairweather’s paragraph 84 to reflect what the records supports.
Friendly’s also adds additional details about the number of employees fired in 2012, but these
additional numbers do not render Ms. Fairweather’s paragraph 84 inaccurate or misleading. The
Court deems the modified version of paragraph 84 admitted under Local Rule 56(f), (g).
98

44

Fairweather did not work. DSMF ¶ 85; PRDSMF ¶ 85.100 In the restaurant business,
it is typical that younger employees prefer to work night shifts, while older employees
prefer to work day shifts. DSMF ¶ 86; PRDSMF ¶ 86.101 Ms. Fairweather concedes
that this was the case at the South Portland restaurant and that the servers who
worked the evening shift were typically younger than those who worked the morning
shift. DSMF ¶ 86; PRDSMF ¶ 86. Ms. Dipietrantonio has not noticed any trend
towards hiring younger servers since 2012. DSMF ¶ 87; PRDSMF ¶ 87.102
Friendly’s continues to employ Ms. Kallio and Ms. Dipietrantonio. DSMF ¶
88; PRSDMF ¶ 88. In addition, the South Portland Friendly’s continues to employ as
servers Muriel Sanborn, born in 1953, and Patricia Chadbourne, born in 1950. DSMF
¶ 88; PRDSMF ¶ 88.103

Ms. Fairweather denies this statement; “[Twenty-three] year old Nicole Dipietrantonio took
over [Ms.] Fairweather’s position as a core member of the morning waitress crew.” PRDSMF ¶ 85
(citing Rupard Dep. 2 at 5:1-25). While that may be correct, the younger Ms. Dipietrantonio was hired
before Ms. Fairweather’s termination, not after. DSMF ¶ 82; PRSDMF ¶ 82. This fact does not
controvert the assertion that the younger servers, hired after Ms. Fairweather’s termination, were
hired primarily for the evening shifts. DSMF ¶ 85. Furthermore, Friendly’s provides record evidence
to support the assertion. Id. (citing Fairweather Dep. at 43:20-44:3, 90:3-11; Newell Dep. at 54:11-21;
and DSMF Attach. 14 Aff. of Bonny Coutts ¶ 12 (ECF No. 30) (Coutts Aff.)) Because Ms. Fairweather
has not shown record material that controverts the assertion of Friendly’s paragraph 85, the Court
deems the paragraph admitted under Local rule 56(f), (g).
101
Ms. Fairweather denies this statement, PRDSMF ¶ 86 (citing Rupard Dep. 2 at 5:1-25), but
her cited record material does not controvert any of the assertions of Friendly’s paragraph 86.
Compare id. with DSMF ¶ 86. The Court deems Friendly’s paragraph 86 admitted under Local Rule
56(f), (g).
102
Ms. Fairweather denies this statement, citing statistics about the ages of servers actually hired
by the South Portland Friendly’s in 2012. PRDSMF ¶ 87 (citing Employee Census). Accepting those
statistics as true, they do not controvert the assertion of paragraph 87, which has to do with Ms.
Dipietrantonio’s perception of hiring trends at her store. Compare id. with DSMF ¶ 87. Friendly’s
supports the assertion with record evidence, DSMF ¶ 87 (citing Dipietrantonio Dep. at 44:23-45:9), so
the Court deems Friendly’s paragraph 87 admitted under Local Rule 56(f), (g).
103
Ms. Fairweather interposes a qualified response, pointing out that “[Ms.] Chadbourne works
approximately 10 hours per week and [Ms.] Sanborn works 4 hours per week.” PRDSMF ¶ 88 (citing
Work Schedules at FICL 001233-1235). This fact does not render the assertion of Friendly’s paragraph
88 inaccurate or misleading. The Court deems the paragraph admitted under Local Rule 56(f), (g).
100

45

Ms. Kallio, who is a year older than Ms. Fairweather and worked with her for
many years, believed that Ms. Fairweather could be rude and bossy toward her coworkers. DSMF ¶ 89; PRDSMF ¶ 89.104 Ms. Dipietrantonio, who is a year younger
than Ms. Fairweather and worked with her for approximately twenty years,
characterizes Ms. Fairweather as very loud, particularly when she is upset. DSMF ¶
90; PRDSMF ¶ 90. Ms. Dipietrantonio characterizes the work environment following
Ms. Fairweather’s termination as “much nicer” and “easier.” DSFM ¶ 90; PRDSMF
¶ 90.105
III.

POSITION OF THE PARTIES
A.

Friendly’s Motion

Friendly’s basic position is that the customer complaint of March 10, 2014 was
a valid business reason to terminate Ms. Fairweather, and the summary judgment
record cannot create a reasonable inference that its reason was a pretext. Def.’s Mot.
at 10-20. Friendly’s first addresses the comments by Ms. Coutts and Mr. Rupard. Id.

Ms. Fairweather denies this assertion, citing Mr. Rupard’s testimony for the proposition that
“[t]he morning core group got along great.” PRDSMF ¶ 89 (citing Rupard Dep. 2 at 16:23-17:2). The
Court notes that Mr. Rupard testified that “I got along great” with the “core group,” id.at 16:25-17:1
(emphasis added), but then, when asked “[h]ow did Sue Fairweather seem to get along with the other
core waitresses, food servers,” he replied “[s]ometimes good, sometimes not so good.” Id. at 17:3-5.
Even drawing all reasonable inferences in Ms. Fairweather’s favor, this testimony hardly supports her
assertion that “the morning core group got along great.” PRDSMF ¶ 89. Even if Mr. Rupard had made
the statement Ms. Fairweather ascribes to him, however, it does not controvert the assertion of
Friendly’s paragraph 89, which goes to Ms. Kallio’s subjective perception of Ms. Fairweather. DSMF
¶ 89. The Court deems Friendly’s paragraph 89 admitted under Local Rule 56(f), (g).
105
Ms. Fairweather denies all of this assertion except that she has a loud voice. PRDSMF ¶ 90
(citing Rupard Dep. 2 at 16:23-17:2). Mr. Rupard’s testimony that he got along great with the morning
crew but Ms. Fairweather was “sometimes good, sometimes not so good,” see supra note 104 (discussing
PRDSMF ¶ 89), does not controvert the assertion of Friendly’s paragraph 90. The assertion goes to
Ms. Dipietrantonio’s history with Ms. Fairweather and her subjective perception of her work
environment following Ms. Fairweather’s termination. Dipietrantonio Dep. at 50:11-21. Because Ms.
Fairweather does not show record evidence that controverts this assertion, the Court deems Friendly’s
paragraph 90 admitted under Local rule 56(f), (g).
104

46

at 12. It urges the Court to disregard most of the comments, either because they were
made by Mr. Rupard, who had no role in Ms. Fairweather’s termination, or because
they were not age related. Id. at 12-14. This leaves two age-related comments by
Ms. Coutts. Id. at 14. Friendly’s argues that these comments are “the precise types
of stray comments that courts disregard in a pretext analysis.” Id. at 15 (citing
Bonefont-Igaravidez v. Int’l Shipping Corp., 659 F.3d 120, 125 (1st Cir. 2011)).
Because, in its view, the two comments by Ms. Coutts were “isolated,” they
“‘demonstrate nothing’ in a pretext analysis.” Id. (quoting Webber v. Int’l Paper Co.,
326 F. Supp. 2d 160, 170 (D. Me. 2004)). Friendly’s offers the case of Mello v. Calais
Regional Hosp., No. Civ. 99-0118-B, 2000 WL 762026 (D. Me. Mar. 8, 2000)
(unreported), aff’d, Order Affirming Recommended Decision (ECF No. 24), Mello v.
Calais Regional Hosp., No. 1:99-cv-00118-DBH (D. Me. May 4, 2000), as an example
of a case where two age-related comments, made within five months of an employee’s
termination, “lack[ed] sufficient temporal proximity . . . to the decision[-]making
process to demonstrate that discriminatory animus was the reason for termination.”
Id. (citing Mello, 2000 WL 762026, at *5, 7). Finally, on the topic of Ms. Coutts’
comments, Friendly’s also argues that the comments must be in some way “connected
to the decision[-]making process.” Id. at 15-16 (citing Mello, 2000 WL 762026, at *7;
Rivera-Aponte v. Rest. Metropol #3, Inc., 338 F.3d 9, 12 (1st Cir. 2003); and Ridge v.
Cape Elizabeth Sch. Dep’t, 77 F. Supp. 2d 149, 166-67 (D. Me. 1999)).
Friendly’s also disputes that Ms. Fairweather’s “demographic evidence”
supports her pretext claim. Id. at 16-17.

It contends that “[m]erely pointing to the

47

fact that younger individuals were retained or hired following [Ms. Fairweather’s]
discharge is insufficient evidence of pretext to survive summary judgment.” Id. at 16
(citing Mello, 2000 WL 762026, at *8 and Deslauriers v. Napolitano, 738 F. Supp. 2d
162, 183 (D. Me. 2010)). Furthermore, Friendly’s argues that the evidence that it
hired servers in their 30s in 2012 reflects the fact that it was hiring servers for
evening shifts, which are generally preferred by younger workers and disfavored by
older workers.

Id. at 17.

Friendly’s also places weight on the fact that Ms.

Dipietrantonio and Ms. Kallio, who were within one year of Ms. Fairweather’s age,
continue to work the breakfast shift at the South Portland Friendly’s. Id. It argues
that this “strongly undercuts any inference of discrimination.” Id. (citing RiveraAponte, 338 F.3d at 12).
Friendly’s vigorously opposes any suggestion that its investigation of Ms.
Fairweather, or its reason for terminating her, was insufficient, giving rise to an
inference of discrimination. Id. at 17-20. In its view, it had no reason to doubt the
customer’s complaint, and verified the substance of the complaint with the only
employee to witness the incident. Id. at 18. It also disagrees with Ms. Fairweather’s
view that its discipline of her was inconsistent with the progressive discipline policy;
it points out that its own Employee Manual indicated that rudeness to a guest was
grounds for immediate termination. Id. at 19. Friendly’s further points out that this
was not Ms. Fairweather’s first warning for rude or discourteous conduct. Id. It
views as irrelevant Ms. Fairweather’s disagreement about the facts of the incident;

48

what is important, in Friendly’s view, is that the customer made the complaint,
Friendly’s received it, and Ms. Coutts verified the basic details. Id. at 19-20.
B.

Ms. Fairweather’s Opposition

Ms. Fairweather begins by cautioning that pretext, in an employment
discrimination case, is an issue usually appropriate for a fact-finder. Pl.’s Opp’n at
12. She argues that there are “many evidentiary paths” to prove pretext, and points
out that the First Circuit has held that “‘there is no mechanical formula for finding
pretext.’” Id. at 13 (citing Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 39 (1st Cir.
2003)).106 For instance, she contends that “‘it is permissible for a trier of fact to infer
the ultimate fact of discrimination from the falsity of the employer’s [explanation].’”107
She also points out that “[p]retext may be demonstrated through weaknesses,
implausibilit[ies], inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons.” Id. at 13-14 (citing Boyajian v. Starbucks Corp., 587
F. Supp. 2d 295 (D. Me. 2008)).
Ms. Fairweather proffers a number of inferences that, she claims, the factfinder could reasonably reach to arrive at the ultimate conclusion that her firing was

Ms. Fairweather also quotes at length from what is apparently a decision of the Maine
Supreme Judicial Court, sitting as the Law Court. Pl.’s Opp’n at 12-13. Ms. Fairweather did not
provide the Court with a citation to accompany this lengthy quotation, but it appears to be from the
case of Trott v. H.D. Goodall Hosp., 2013 ME 33, ¶¶ 18-20, 66 A.3d 7.
107
Ms. Fairweather quotes this phrase as: “it is permissible for a trier of fact to infer the ultimate
fact of discrimination from the falsity of the employer’s discrimination.” Pl.’s Opp’n at 13 (citing
DeCaire v. Mukaskey, 530 F.3d 1, 19 (1st Cir. 2008)). This is a puzzling and circular statement, but
the Court in DeCaire did indeed write almost these exact words, and purported to quote them from the
Supreme Court case of Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000). The
original passage in Reeves reads, more sensibly: “it is permissible for the trier of fact to infer the
ultimate fact of discrimination from the falsity of the employer's explanation.” Reeves, 530 U.S. at 147.
The Court has adjusted the quotation to be true to the original source material, which is germane to
the legal analysis.
106

49

pretextual. Id. at 14-15. The fact-finder could infer, she contends, that the South
Portland Friendly’s “constantly” received customer complaints of rudeness but never
disciplined or terminated the accused, or only issued notes to file; this would render
the basis for Ms. Fairweather’s termination “weak and inconsistent and a departure
from policy.”

Id. at 14-15.

She contends that the fact-finder could reasonably

conclude that Ms. Newell’s claim, that complaints of rudeness always result in
termination, is false, or that Ms. Fairweather’s termination was a departure from the
progressive discipline policy. Id. at 15. She next argues that it would be reasonable
to conclude that Ms. Fairweather’s version of the incident is credible, and that
Friendly’s had no actual reason to terminate her. Id. at 15, 16. Alternatively, she
contends, the fact-finder could conclude that Ms. Coutts’ investigation was
insufficient and cursory. Id. at 15
Ms. Fairweather also sees in the summary judgment record a reasonable
inference that Friendly’s had a secret plan to create a new image for itself by hiring
younger servers and discharging older servers. Id. She sees further evidence of this
in the age related comments by Ms. Coutts and Mr. Rupard. Id. She also suggests
that Friendly’s hiring of a majority of servers under the age of thirty in 2012
strengthens this inference.

Id. at 16.

Ms. Fairweather suggests that her own

termination is also evidence to support this inference. Id.
Ms. Fairweather contends that it would be reasonable to infer that Ms. Coutts’
“differential treatment” of Ms. Fairweather in the months before her termination,

50

along with Coutts’ “refus[al] to take action to remedy the harassment,” is evidence
that Ms. Coutts was trying to force her to resign. Id.
C.

Friendly’s Reply

In reply, Friendly’s first argues that Ms. Fairweather’s own version of the facts
of the incident leading to her termination is immaterial to the pretext analysis. Id.
at 2. It renews its previous argument that what matters is Friendly’s notice of the
complaint and investigation, not what actually did or did not happen on May 10, 2012.
Id. at 2-3. Next, Friendly’s argues that Ms. Fairweather has not shown that similarly
situated, younger employees were disciplined for similar offenses in a manner
inconsistent with her. Id. at 4. Friendly’s disputes that there is any evidence of a
“plan” to eliminate older waitresses, particularly in light of the fact that Ms.
Dipietrantonio and Ms. Kallio continue to be retained by Friendly’s. Id. at 6. Finally,
Friendly’s disputes that Ms. Roberge’s “untested” claim against Friendly’s, filed while
it was laying off thousands of employees during bankruptcy, gives rise to an inference
of age discrimination against Ms. Fairweather. Id. at 7.
IV.

DISCUSSION
A.

Analytical Framework Under McDonnell Douglas

As the First Circuit recently wrote, the courts apply the McDonnell Douglas
burden-shifting analysis “to help the parties ‘sharpen the inquiry into the elusive
factual question’ of the employer’s motivation.” Ahmed v. Johnson, No. 13-1054, 2014
U.S. App. LEXIS 9454, *10-11 (1st Cir. May 21, 2014) (quoting Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 256 n.8 (1981)).

51

Under the McDonnell Douglas

framework, the plaintiff bears the initial burden to make a prima facie showing of
discrimination. Vélez v. Thermo King de P.R., Inc., 585 F.3d 441, 447 (1st Cir. 2009).
In the context of an [Age Discrimination in Employment Act] claim for
discriminatory firing, this requires a plaintiff to show that: 1) he was at
least 40 years old at the time he was fired; 2) he was qualified for the
position he had held; 3) he was fired, and 4) the employer subsequently
filled the position, demonstrating a continuing need for the plaintiff's
services.
Id.108

Once the plaintiff makes this showing, he generates an inference of

discrimination. Ahmed, 2014 U.S. App. LEXIS 9454, *11. The employer may rebut
the inference by producing evidence of a “legitimate, non-discriminatory reason” for
its decisions. Id. This is a burden of production only, not a burden of persuasion.
Mesnick v. General Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991).
Once the employer sustains this burden of production, the burden shifts back
to the plaintiff to prove that the proffered non-discriminatory reason was, in fact, a
pretext for illegal discrimination. Melendez v. Autogermana, Inc., 622 F.3d 46, 52 (1st
Cir. 2010).
It is not enough for a plaintiff merely to impugn the veracity of the
employer’s justification; he must “elucidate specific facts which would
enable a jury to find that the reason given is not only a sham, but a sham
intended to cover up the employer’s real motive: age discrimination.”
Mesnick, 950 F.2d at 824 (quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896
F.2d 5, 9 (1st Cir. 1990)). In the summary judgment context, “[t]he ultimate question
. . . is ‘whether or not the plaintiff has adduced minimally sufficient evidence to permit
a reasonable factfinder to conclude that he was fired because of his age.’” Vélez, 585
The Federal Age Discrimination in Employment Act of 1967, 81 Stat. 602 (codified at 29 U.S.C.
§§ 621 et seq.), also forbids age discrimination, and also uses the McDonnell Douglas burden shifting
framework. Vélez, 585 F.3d at 447.
108

52

F.3d at 452 (quoting Dávila v. Corporación de P.R. Para la Difusión Pública, 498 F.3d
9, 16 (1st Cir. 2007)).
B.

Ms. Fairweather’s Prima Facie Case and Friendly’s Legitimate,
Non-Discriminatory Reason for Her Termination
1.

The Prima Facie Case

The first two volleys in the McDonnell Douglas framework are straightforward
in this case. The fact-finder could readily and reasonably conclude that (1) Ms.
Fairweather was over forty years old when Friendly’s fired her, Section II.B.1, supra;
(2) she was qualified for the position she held, Sections II.B.1 to II.B.2, supra; (3)
Friendly’s fired her, Section II.B.10, supra; and (4) Friendly’s replaced her with the
twenty-three year old Nicole Dipietrantonio. Section II.B.11, supra. This meets Ms.
Fairweather’s burden to establish a prima facie case of age discrimination.
2.

The Legitimate Non-Discriminatory Reason

Even viewing the summary judgment record in the light most favorable to Ms.
Fairweather, a fact-finder could also reasonably conclude that Friendly’s had met its
burden to produce a legitimate, non-discriminatory reason to fire her. She had
records of several instances of discipline in her file (notwithstanding that she was
apparently aware of only one of them), Sections II.B.7, II.B.10, supra; a customer
reported an instance of serious rudeness by Ms. Fairweather, Section II.B.10, supra;
Ms. Coutts confirmed the substance of the complaint, id.; and Friendly’s disciplinary
policy allowed for immediate termination for an incident involving rudeness to a
guest. Section II.B.5, supra. This is a legitimate, non-discriminatory reason for
Friendly’s to have fired Ms. Fairweather, and it rebuts the inference of her prima

53

facie case. Consequently, the burden shifts back to her to show—with the benefit of
all evidence viewed in a light most favorable to her and all reasonable inferences—
that there is a genuine issue of material fact as to whether Friendly’s proffered reason
is a sham, and it actually terminated her because of her age. Mesnick, 950 F.2d at
824.
C.

Pretext

Whether Ms. Fairweather has shown that her termination was a pretext for
age discrimination is an extremely close and difficult question.

It requires an

evaluation of what inferences are reasonable for a fact-finder to draw based on the
historical facts of the summary judgment record. Ms. Fairweather supplies a variety
of inferences that, in her view, are reasonable on the record and would lead to a
finding of pretext.
Evaluating the reasonableness of these inferences is inevitably an evidenceintensive inquiry, and the Court begins with an examination of cases where summary
judgment of a pretext claim has and has not been held appropriate. To reiterate an
earlier point: although Maine law supplies the substantive right at issue here, federal
procedural law supplies the standard by which the Court evaluates the
reasonableness of Ms. Fairweather’s proposed inferences. Hanna, 380 U.S. at 47172. Therefore, the Court looks to federal summary judgment decisions on pretext in
discrimination cases.

54

1.

Select Comparable Cases
a.

Bonefont-Igaravidez v. International Shipping
Corp.

In Bonefont-Igaravidez, the First Circuit upheld a district court’s grant of
summary judgment to a defendant in an age discrimination case under the Federal
Age Discrimination in Employment Act (ADEA). 659 F.3d at 126-27. The plaintiff,
a stevedore, alleged that in the months before his termination his co-workers called
him “an old, sick man; asked him why he had not retired; told him that he was too
old to perform his job duties; and urged him to stay home to watch soap operas and
care for his grandchildren.” Id. at 122. None of the plaintiff’s supervisors made any
remarks about his age. Id. After several months, the plaintiff was terminated for
fighting with a co-worker. Id. at 123. He also alleged that there were inconsistencies
in his employer’s incident reports documenting the event. Id. at 124-25. Finally, he
alleged that other, younger co-workers had also fought each other and had not been
terminated. Id. at 126. The plaintiff argued that these events gave rise to an
inference of pretext. Id. at 124-26.
The First Circuit rejected all of these inferences. Id. First, it observed that
the inconsistencies in the employer’s documentation did “nothing to unveil any
ulterior, discriminatory motive.” Id. at 125. Second, it held that the disparaging
remarks by the plaintiff’s co-workers, though potentially relevant to pretext and close
in time to the termination, “were made by [the plaintiff’s] fellow stevedores in
circumstances unrelated to the altercation and subsequent termination.”

Id.

Furthermore, there was no evidence that the person who actually made the

55

termination decision “relied on information from any . . . employee who may have
demonstrably possessed a discriminatory animus.” Id. Finally, as to the different
treatment of younger workers, the Court held that “[f]or such disparate treatment to
be probative of a discriminatory motive, . . . it must be shown that the incidents were
‘similarly situated in material respects [to the proposed analogue].’”

Id. at 126

(quoting Vélez, 585 F.3d at 451).
The Bonefont-Igaravidez Court offered one further piece of guidance:
When assessing a claim of pretext in an employment discrimination
case, the court must focus on the motivations and perceptions of the
employer’s decision[-]maker. . . . Whether these perceptions are accurate
or not, and the motivations apt or inept, so long as they are not
discriminatory it is beyond the province of the court to act as a “super
personnel department,” second-guessing the process by which the
decision[-]maker has arrived at her conclusion and, in effect,
substituting its own business judgment for that of the employer.
Id. (internal quotations and citations omitted).
b.

Webber v. International Paper Co.

In Webber, the First Circuit upheld a district court’s grant of summary
judgment in a disability discrimination case, also applying the McDonnell Douglas
framework. 417 F.3d at 240-41. In that case, a manager in an engineering position
who lacked an engineering degree was terminated as part of a workforce reduction
initiative by his employer. Id. at 232-33. The employee had disabling injuries to his
knees that required the employer to make special accommodations for him in the
workplace. Id. The employer claimed that the plaintiff was terminated because he
lacked an engineering degree and had not produced work of sufficient quantity or
quality. Id. at 233. The employee, however, alleged disability discrimination, citing

56

disability-related comments and ridicule by his immediate supervisors four years
before his termination, and a query from his supervisor in the month before his
termination as to how long it would take him to heal from his latest surgery. Id. at
232-33. The decision to terminate the employee was made by his mill manager, not
his immediate supervisor, though the manager received input from the supervisors
who had ridiculed the employee. Id. at 233.
The First Circuit refused to allow an inference of pretext on these facts. The
Court found no evidence that the supervisors who had ridiculed the employee
“conveyed any alleged discriminatory animus to . . . the decision[-]maker of record.”
Id. at 236. Furthermore, although the manager consulted two of the supervisors who
had made comments, they merely remained silent as to the employee, declining to
give an opinion one way or another. Id. at 237. The Webber Court held that mere
acquiescence by the supervisors, who had made discriminatory comments, was not
enough to create an inference that the decision-maker terminated the employee for a
discriminatory purpose. Id. The Court also rejected the plaintiff’s allegation of a
covert, company-wide policy to get rid of disabled workers, based on a comment
among employees that “salaried people do not get hurt.” Id. at 239.
c.

Che v. Massachusetts Bay Transportation Authority

In Che, the First Circuit affirmed a district court’s denial of judgment as a
matter of law to the defendant state agency, following a jury verdict in favor an Asian
plaintiff who claimed his supervisor discriminated against him because of his race.

57

342 F.3d at 35-37.109 The defendant presented evidence that the supervisor had once
accused the employee of faking an illness, saying “I think the chink is faking it.” Id.
at 39. The supervisor had disciplined the employee for writing in an “assignment
block” used to track employee work shifts, but there was also testimony that other
employees had written in the block without discipline. Id. at 38. Some testimony
suggested that the supervisor withdrew his orders not to write in the assignment
block after learning that other employees had done so in the past without
punishment. Id. at 39. Furthermore, the supervisor disciplined the Asian employee
after getting into an argument with a co-worker, but did not discipline white
employees who got into similar arguments.

Id. Eventually, the agency, at the

supervisor’s prompting, demoted the Asian employee for insubordination, for a later
instance of writing in the assignment block. Id. at 36.
The Court found that this evidence could generate an inference of pretext in
one of two ways. First, the jury could reasonably have inferred that the Asian
employee received different treatment than similarly situated white employees
because of his race. Id. at 39. Second, the jury could have inferred that the employer’s
proffered reason for the demotion—insubordination—was “unworthy of credence” in
light of the evidence that the supervisor had later withdrawn his instruction not to
write in the assignment block. Id. The Court affirmed the district court’s denial of

Federal courts evaluate a motion for judgment as a matter of law using the same standard as
they apply in summary judgment cases, substituting the trial evidence for the summary judgment
record. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986).
109

58

judgment as a matter of law, holding that this evidence was sufficient to support the
jury’s verdict that the agency had discriminated. Id. at 39-40.
d.

Hall v. Mid-State Machine Products

In Hall, this Court granted summary judgment in favor of a defendant
company accused of age discrimination against one of its former employees in
violation of ADEA. 895 F. Supp. 2d at 246. The plaintiff, who was ostensibly fired
for permitting a mentally disabled employee under his supervision to be sexually
harassed for a year in violation of the company’s harassment policy, argued that this
was a sham reason designed to conceal the true reason for his termination—his age.
Id. at 274. The plaintiff conceded that no one at the company had ever made any
comments about his age but pointed out that another employee had sued the company
for age discrimination and argued that the employer’s investigation of the incident
was faulty and arbitrary. Id. at 274-75. Specifically, he alleged that the behavior of
his direct report employees who harassed the mentally disabled man was not “sexual
harassment” within the meaning of the company’s policy, that other employees who
were aware of and failed to report the harassment were not terminated, and that the
plaintiff’s own supervisor was also aware of the harassment and was not terminated.
Id.

The plaintiff urged the Court to find that he had generated a permissible

inference of pretext based on this evidence. Id.
This Court rejected all of those arguments. Id. at 275. It held that the evidence
was “consistent on the essential point” that the behavior of the plaintiff’s own direct
report employees was “lewd, dirty, vulgar, and inappropriate,” in violation of the
harassment policy. Id. It further held that, “[e]ven if [the plaintiff] were to show that
59

[the company’s] decision to fire him were ‘unfair or unwise,’ he would be entitled to
no relief under the ADEA because he has failed to raise a reasonable inference that
age discrimination was the real reason for his firing.”

Id.

The Court found it

particularly telling that the plaintiff had produced no evidence of references to his
age at all, much less in connection with his termination, nor had he produced any
“statistical evidence showing a correlation between age and the likelihood of
termination.” Id. at 276 (citing Phair v. New Page Corp., 708 F. Supp. 2d 57, 68 (D.
Me. 2010)).
2.

Ms. Fairweather’s Proposed Inferences of Pretext

The Court turns to Ms. Fairweather’s proposed inferences of pretext. Pretext,
to repeat, requires proof that both (1) Friendly’s proffered reason for termination was
a sham and (2) the actual reason for the termination was Ms. Fairweather’s age.
Mesnick, 950 F.2d at 824. Under appropriate factual circumstances, the second may
be implied from the first. DeCaire v. Mukasey, 530 F.3d 1, 19-20 (1st Cir. 2008).
a.

Inconsistent Discipline

Ms. Fairweather argues that the fact-finder could reasonably infer that the
South Portland Friendly’s “constantly” received customer complaints of rudeness but
never disciplined or terminated the accused, or only issued notes to file. Pl.’s Opp’n
at 14-15.

This, she contends, would render the basis for Ms. Fairweather’s

termination “weak and inconsistent and a departure from policy.” Id.
Viewing the evidence in the light most favorable to her, the record supports
Ms. Fairweather’s contention that Friendly’s received a fairly regular stream of
customer complaints. The customer survey reports, Guest Track System and SMG,
60

indicate that Friendly’s received a customer complaint about once per week and that
the district for which Ms. Newell was the manager, including the South Portland
store, did not fare well in the surveys. Sections II.B.3, II.B.4, supra. The Friendly’s
records also confirm, however, that customers complained about many things other
than the rudeness of the server, and, as is common in restaurants, the customers
occasionally blamed the server for the sins of the cook or for the restaurant’s inherent
inefficiencies. Id. For example, the Court does not view the complaint that “THE
FOOD IS AWFUL, and the service by high school children and that circus element
was pathetic and the restaurant was dead – no excuses” as a complaint about the
rudeness of the wait staff.

Section II.B.4, supra.

Other complaints, such as

inattention by servers, inflexible menu options, and inaccuracies in orders, are not
about rudeness. Id.
Focusing on server rudeness—as opposed to undercooked food, melted ice
cream, or slow service—there is more limited evidence of this subcategory of
complaint and Friendly’s response to such complaints. The record contains reference
to a complaint of rudeness involving “Joanne,” presumably Joanne Roberge, who was
63 in January 2012. PSAMF ¶ 49; DRPSAMF ¶ 49 (“the guest stated that they had
a server named Joanne . . . was (sic) rude to the guest”); PSAMF ¶ 73; DRPSAMF ¶
73. Friendly’s terminated Ms. Roberge’s employment in January 2012. PSAMF ¶ 73;
DRPSAMF ¶ 73.

The significance of Ms. Roberge’s employment history with

Friendly’s is complicated.

The record contains no information about when the

rudeness complaint took place, other than that it was at some time in the two-year

61

period before Ms. Fairweather’s termination. Therefore the Court has no basis to tie
the rudeness complaint to her termination. Furthermore, according to the record,
Friendly’s terminated Ms. Roberge because she exceeded the acceptable number of
customer walk-outs, PSAMF ¶ 74; DRPSAMF ¶ 74, not because of the rudeness
complaint. Accordingly, again viewing the evidence in the light most favorable to Ms.
Fairweather, Friendly’s failure to terminate Ms. Roberge for her rudeness to a
customer is some evidence that Friendly’s did not apply consistent standards for
dismissal. At the same time, this evidence is equivocal regarding Ms. Fairweather’s
claim that Friendly’s used the rudeness complaint to terminate her because of her
age; Friendly’s apparently did not terminate Ms. Roberge, a sixty-three year old
server, for rudeness to a customer.
A second rudeness incident, this time involving an employee named Daniel
Goodling, took place on December 30, 2011. PSAMF ¶ 43; DRPSAMF ¶ 43. Mr.
Goodling was around 34 at the time. Stip. Attach 1, at 2 (Employee Census). Mr.
Goodling was given a disciplinary notice for “[r]ude/discourteous treatment of
Guests/coworkers.” PSAMF ¶ 43; DRPSAMF ¶ 43. Ironically, the disciplinary notice
describes Mr. Goodling as having been “loud and confrontational to [Ms.] Fairweather
in front of customers. Tempers flared.” PSAMF ¶ 44; DRPSAMF ¶ 44. Friendly’s
terminated Mr. Goodling less than two weeks after this incident. DRPSAMF ¶ 44.
It is difficult to know what to make of this episode.

Although Friendly’s

terminated Mr. Goodling two weeks after this incident, Friendly’s does not say that
it terminated him because of the incident. Mr. Goodling’s loud and confrontational

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behavior was directed to a co-worker, not a customer, but it was in front of a customer.
Despite this behavior, at least from the summary judgment record, Mr. Goodling
received only a disciplinary write-up. Again, viewing the evidence in the light most
favorable to Ms. Fairweather, Friendly’s handling of the Goodling incident is some
evidence of an inconsistent application of discipline, favoring a younger worker, who
had engaged in inappropriate conduct.
A third rudeness complaint involved a manager with the first name Amy,
perhaps Amy Barter, a Friendly’s manager who was twenty-nine years old in 2012.
PSAMF ¶ 54; DRPSAMF ¶ 54; Employee Census at 2. A customer telephoned Ms.
Barter to complain about something that had happened at Friendly’s earlier that day,
and the customer later complained that Ms. Barter was rude on the phone. PSAMF
¶ 55; DRPSAMF ¶ 55.

Friendly’s terminated Ms. Barter on January 13, 2012.

DRPSAMF ¶ 54. Again, there is nothing in the record to establish when the rudeness
complaint was lodged against Ms. Barter and nothing to indicate that Ms. Barter was
terminated for this conduct. This apparently lenient treatment of twenty-nine year
old Ms. Barter is some evidence that it handled the rudeness complaint against fiftyfive year old Ms. Fairweather more harshly than that of her younger colleague.110

At oral argument on July 15, 2014, Friendly’s strenuously argued that Ms. Barter was not a
similarly situated employee to Ms. Fairweather because Ms. Barter was a supervisor at the time. But
this argument does not withstand analysis. Friendly’s repeatedly emphasized that—true to its
name—it prizes friendly and polite treatment of its customers. Here, Ms. Barter was rude in dealing
with a person who telephoned with a complaint. The notion that Friendly’s would allow its managers
to be rude to guests, but not its servers, simply makes no sense.
110

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Ms. Fairweather submitted statements about other employee misconduct and
the resulting discipline. For three, there is so little information about the incidents
and their comparability to Ms. Fairweather’s situation that the Court has not
considered them. On February 18, 2011, Bonnie Coutts issued a note to file to
employee Michelle Robertson.111 PSAMF ¶ 40; DRPSAMF ¶ 40. The document that
supports this paragraph indicates that Ms. Robertson was rude to Ms. Coutts, but
contains no detail. PSAMF ¶ 40.

Similarly, on September 9, 2011, management

issued a note to file for an employee named Steph Rosario for “rude/discourteous
treatment of guests/co-workers.” PSAMF ¶ 41; DRPSAMF ¶ 41. Here, there is no
description of what Ms. Rosario did to be rude or discourteous and to whom.112
PSAMF ¶ 41. Finally, on August 24, 2012, an employee named Zachery Hutchins
was cited for “Insubordination,” “Use of offensive/abusive language,” and
“rude/discourteous treatment of Guests/co-workers/Manager.”

PSAMF ¶ 39;

DRPSAMF ¶ 39.113 Mr. Hutchins, about 33 years old, was terminated on August 24,
2012. Employee Census at 2. Other than these general descriptions, there are no
details, however, and they do not weigh into the Court’s assessment of the motion for
summary judgment.

Oddly, Michelle Robertson’s name does not appear in the roster of employees from January 1,
2011 to the present that Ms. Fairweather and Friendly’s submitted by stipulation. See Employee
Census at 1-3. Ms. Robertson’s age is also not a matter of record.
112
Steph Rosario is not listed in the roster of employees either; her age is not a matter of record.
113
Friendly’s objected on the ground that the statement was not supported by the record.
DRPSAMF ¶ 39. Friendly’s is correct. Although Ms. Fairweather cites a Bate-stamped document, she
failed to supply it. Nevertheless, subject to its objection, Friendly’s has admitted the accuracy of the
paragraph, and for purposes of this motion, the Court has credited the paragraph.
111

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Ms. Fairweather also points to an incident involving a forty-four year old
employee, Todd Woodsome. PSAMF ¶¶ 45-47; DRPSAMF ¶¶ 45-47; Employee Census
at 3. On February 23, 2012, a customer sent a complaint about Mr. Woodsome to
Friendly’s, complaining about the food and Mr. Woodsome’s service.114 PSAMF ¶ 46;
DRPSAMF ¶ 46. Apparently, when told of the problems, Mr. Woodsome said, “Oh,
that’s too bad.” PSAMF ¶ 47; DRPSAMF ¶ 47. This description is too equivocal for
the Court to conclude that the customer thought that Mr. Woodsome was being rude,
only that he had offered poor service and, in the customer’s view, had failed to
properly respond when the customer complained. The Court has not considered the
discipline of Todd Woodsome in ruling on the motion for summary judgment.
Ms. Fairweather has set forth one other rudeness complaint. PSAMF ¶ 55;
DRPSAMF ¶ 55. But the server is not named and there is no information in the
record as to the server’s age and whether Friendly’s took disciplinary action against
the rude server.
Finally, Ms. Fairweather itemized a number of other customer complaints,
ranging from inattentiveness to long wait times to inaccurate orders. PSAMF ¶¶ 5762; DRPSAMF ¶¶ 57-62. These episodes are some evidence that customer complaints
were not all that uncommon, but they have minimal probative value for determining
whether Friendly’s terminated Mr. Fairweather due to her age.

Friendly’s objected on the ground that the statement was not supported by the record.
DRPSAMF ¶ 47. Again, Friendly’s is correct. Although Ms. Fairweather cites a Bate-stamped
document, she failed to supply it. Nevertheless, subject to its objection, Friendly’s has admitted the
accuracy of the paragraph, and for purposes of this motion, the Court has credited the paragraph.
114

65

Of the customer complaints proffered by Ms. Fairweather, four actually
alleged rudeness—one by a manager, and three by servers. See Section II.B.4, supra.
The record also demonstrates two discipline notices to employees’ files for rudeness.
Section II.B.6, supra.
Although hardly robust, the Court concludes that Ms. Fairweather has
produced some evidence that, when viewed in the light most favorable to her, could
generate an inference that her firing was pretextual.

Friendly’s customers

complained about the rudeness of Mr. Goodling and Ms. Barter and there is no
evidence in this record that Friendly’s took the same disciplinary action against these
employees that it took against Ms. Fairweather. Thus, she has produced evidence
that Friendly’s treated at least two “similarly situated” employees outside the
protected class more favorably than her.

Bonefont-Igaravidez, 659 F.3d at 126;

Deslauriers, 783 F. Supp. 2d at 180-81.
b.

First-Offense Termination

Ms. Fairweather claims that a fact-finder could reasonably infer that it was
not actually Friendly’s policy to immediately terminate an employee for rudeness on
the first offense. Pl.’s Opp’n at 15. In response, Friendly’s points to language in the
Employee Manual that warns its employees, including Ms. Fairweather, that rude
treatment of a guest was a violation of company policy and “could result in immediate
discharge on a first offense.” Def.’s Mot. at 19. Furthermore, Friendly’s asserts that
“this incident was not Plaintiff’s first warning for rude or discourteous treatment of
a guest.” Id. Friendly’s argument reveals a contradiction. Friendly’s did not enforce
its supposed “no tolerance” policy toward server rudeness to a guest when it gave Ms.
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Fairweather a warning for a prior episode of rudeness. At the same time, as will be
explained, the Court agrees with Friendly’s that Ms. Fairweather cannot
manufacture a genuine issue of material fact simply by denying that the conduct
underlying the documented personnel action ever actually took place.
c.

Ms. Fairweather’s Version of the Incident

Ms. Fairweather argues that a fact-finder could reasonably infer that the
incident did not actually take place as the customer said it did, and that Friendly’s
had no reason to terminate her. Pl.’s Opp’n at 15. This focuses on the wrong point.
The question, when determining whether there is an inference of pretext, is what the
employer knew and intended, not what actually happened. If what actually happened
impacted the employer’s knowledge, then it is relevant; if it did not, it is irrelevant.
The summary judgment record shows that Friendly’s received a complaint,
credible on its face, alleging rudeness to a customer by Ms. Fairweather. Section
II.B.10, supra. Ms. Coutts investigated the complaint and confirmed its “substance”
with Ms. Dipietrantonio, who witnessed the incident. Id. Ms. Coutts attempted to
interview other employees, but discovered no additional information. Id. She and
Ms. Newell gave Ms. Fairweather an opportunity to explain her version of events on
May 14, 2012, listened to what she had to say, and then decided to fire her anyway.
Id. Nothing in the record shows that it was patently unreasonably for them to believe
the customer and Ms. Dipietrantonio over Ms. Fairweather when making their
decision. This is not a case, as in Che, where the record shows that the supervisor
was actually aware of the inaccuracy of the alleged offense. Che, 342 F.3d at 38-39.

67

Ms. Fairweather may be entirely correct that her behavior was benign and
polite, that the customer was rude and unreasonable, and that Ms. Dipietrantonio
“screamed” at her at the podium. Section II.B.10, supra. Nothing about her own
recollection of events controverts the facts that Friendly’s received the complaint,
investigated, and decided to fire Ms. Fairweather after performing an investigation.
Nor do any later revelations that certain details of the customer’s complaint were
incorrect. Id. To raise an inference of pretext by showing that the customer’s and
Ms. Dipietrantonio’s versions were factually incorrect, Ms. Fairweather would have
to show evidence that the decision-maker or one influencing her—Ms. Newell or Ms.
Coutts—was actually aware that the incident did not occur as it was reported, or
could not reasonably have believed the evidence that led them to their final
conclusion. See Mello, 2000 WL 762026, at *5 (holding that information reported to
the decision-maker, later proved to be incorrect, does not generate an inference that
the decision-maker had the correct information at the time of the decision).115
Ms. Newell was not in the restaurant at the time of the incident and Ms. Coutts
did not personally witness it. Section II.B.10, supra. Ms. Coutts, whose investigation
influenced Ms. Newell’s decision, had credible evidence that the incident occurred as
the customer said it did.

Id.

Consequently, Ms. Fairweather cannot raise an

inference of pretext with evidence that the information on which Friendly’s relied was
factually incorrect.

Mello is an unreported decision, but the Court views it as rightly decided and treats it as
persuasive precedent.
115

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d.

Adequacy of Ms. Coutts’ Investigation

Ms. Fairweather also proposes an inference that Ms. Coutts’ investigation was
inadequate, which, she argues, supports the further inference of pretext. She claims
that Ms. Burke, who received the first corroborating complaint from Ms.
Dipietrantonio, did not actually work on May 10, Pl.’s Opp’n at 6—but the Court has
ruled that Ms. Fairweather has not established that fact. See Section II.B.10 & n.72,
supra. Ms. Fairweather also claims that the investigation was faulty because Ms.
Coutts did not interview Ms. Fairweather herself or Mr. Rupard. Id. at 6-7. She
attacks the factual accuracy of Ms. Dipietrantonio’s reported version of the events,
id. at 7, but the Court has already addressed that issue above. See Section IV.C.2.c,
supra. If there were factual inaccuracies in what Ms. Dipietrantonio told Ms. Coutts,
Ms. Fairweather has not shown that Ms. Coutts or Ms. Newell were aware of them
on or before May 14, 2012.
It is true that Friendly’s was limited by the fact that Ms. Dipietrantonio was
the only person to actually observe the incident. Section II.B.10, supra. Ms. Coutts
interviewed the other servers who were working that morning, who were in a position
to observe the incident. Id. Only Ms. Dipietrantonio witnessed it, and she confirmed
the substance of the complaint. Id. Ms. Coutts did not interview Mr. Rupard, but
this was at least a plausible decision, given that he was working behind the grill and
was not in a position to observe the podium. Id.
The more difficult issue is whether a question of pretext is generated by the
fact that Ms. Coutts did not interview Ms. Fairweather before writing up her
termination papers. Instead, Ms. Fairweather was called in on her day off and met
69

with both Ms. Coutts and Ms. Newell. When she sat down, the two women threw the
survey across the table at Ms. Fairweather and asked her to explain it.

Ms.

Fairweather saw the termination paper on the folder on the table and became very
upset. Ms. Fairweather said that the incident did not happen and that it did not
happen that way. She denied speaking rudely to the customer. Ms. Coutts and Ms.
Newell fired Ms. Fairweather.
Neither Ms. Fairweather nor Friendly’s has presented the Court with any
caselaw that holds an employer’s failure to interview an employee before terminating
her generates a material fact about the adequacy of an investigation sufficient to
escape summary judgment. The Court doubts that there is any such hard and fast
rule. For example, if numerous witnesses confirmed that an employee physically
assaulted a co-worker, the employer might well conclude that the offense justified
termination despite not hearing the assaulter’s side.
Here, the Court concludes that Ms. Fairweather has raised a genuine issue of
material fact as to whether Friendly’s conducted an adequate investigation. Ms.
Fairweather was, after all, a twenty-four year veteran employee of Friendly’s,
Friendly’s had interviewed only one confirming witness, and from the evidence, a jury
could conclude that before Ms. Coutts and Ms. Newell sat down with Ms.
Fairweather, they had decided to fire her. Again, although not the strongest case,
the Court concludes that a fact-finder could reasonably conclude that Friendly’s did
not conduct a proper investigation of the incident before terminating Ms.
Fairweather.

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e.

Conspiracy to Replace Older Servers With Younger
Servers

Ms. Fairweather argues that a fact-finder could infer that following Friendly’s
emergence from bankruptcy on January 9, 2012, its effort to change its image
included an unstated effort to shed older servers and hire younger ones. Pl.’s Opp’n
at 2-3, 15. She finds support for this inference in Ms. Coutts’ and Mr. Rupard’s
workplace comments about Ms. Fairweather’s age; demographics showing Friendly’s
hiring a number of young servers in 2012; the termination of Joanne Roberge; Ms.
Coutts’ “differential” treatment of Ms. Fairweather in the months prior to her
termination; Mr. Rupard’s harassment of Ms. Fairweather and Ms. Coutts’ response;
and Ms. Fairweather’s long tenure at Friendly’s. Id. at 15-16.
Certain of these bases for the inference of an internal conspiracy are thin. Ms.
Fairweather’s long-time employment at Friendly’s suggests that she must have
performed her job reasonably well for an extended period and that she must have had
some degree of institutional loyalty to her employer.

It is also true, however, that

even a long term employee can run into discipline problems, and a short term
employee, who happens to be over a certain age, may be terminated because of illegal
age discrimination.

Likewise, Ms. Roberge’s termination is not relevant to an

inference of a conspiracy; she was terminated before Friendly’s emerged from
bankruptcy, and she had a history of discipline problems including rudeness to
guests. Section II.B.8, supra.
In this case, the hiring demographics also do not contribute to any inference of
a plan to replace older servers with younger ones. Taking the demographics as true,

71

Section II.B.11, supra, Ms. Fairweather has shown no evidence that the 2012 hiring
demographics are different from the hiring demographics of the South Portland
Friendly’s restaurant at any other time in its existence. Without significantly more
detailed statistical analysis than Ms. Fairweather offers, a fact-finder could not
reasonably infer from one year worth of hiring data a nefarious plan to eliminate
older servers.
This leaves three categories of evidence to support the proposed inference: agerelated comments by Ms. Coutts and Mr. Rupard; hostile, non-age related comments
by Ms. Coutts and Mr. Rupard; and hostile behavior by Ms. Coutts. Section II.B.9,
supra. Like Ms. Roberge’s termination, many of these incidents occurred before the
emergence from bankruptcy, but some occurred after, and are potentially relevant.
The record suggests that Ms. Coutts developed an intense dislike of Ms.
Fairweather, and made her life difficult at Friendly’s. Id. It also suggests that Mr.
Rupard made a number of remarks plainly inappropriate for a professional
workplace.

Id.

However, although these words and actions directed to Ms.

Fairweather were hostile, the only one that was actually age related was Mr.
Rupard’s comment that Ms. Fairweather was “so old that she could have served the
Last Supper.” Id. These remarks and actions, targeted at Ms. Fairweather herself,
do not mesh logically with a conspiracy to eliminate older servers, because Ms.
Fairweather has not shown any evidence that other older servers were subjected to
similar abuse.

Indeed, Ms. Fairweather says repeatedly that Ms. Coutts’ poor

treatment of her stood out as unique; she did not treat any other servers in the same

72

way. Id. The record also shows that Ms. Coutts’ hostile behavior began in July 2011,
approximately six months before Friendly’s emerged from bankruptcy. Id. This
evidence would certainly support an inference that Ms. Coutts was trying to get rid
of Ms. Fairweather, but absent similar treatment of other older servers it supports
precisely the opposite inference with regard to the older servers as a group. In other
words, Ms. Coutts’ dispute seems to have been with Ms. Fairweather personally, not
with the older servers generally. Consequently, the Court discards from its analysis
the hostile, non-age related statements and behavior by Ms. Coutts and Mr. Rupard
toward Ms. Fairweather.
This leaves the age related comments. There were three squarely age-related
comments from Ms. Coutts and one from Mr. Rupard. Two of Ms. Coutts’ comments
were approximately the same, and occurred at some time in the year before Ms.
Fairweather’s termination: Ms. Coutts said that if people were too old to do their jobs,
she would find somebody else who could. Id. The third came in mid- to late January
2012, following the bankruptcy: “[L]isten up, all you older servers, you have to be on
top of your game now because I can no longer protect you.” Id. She did not elaborate
on any of these comments. Id. Mr. Rupard—who held some form of shift supervisor
role—also said that Ms. Fairweather was so old that she probably served at the Last
Supper. Id.
The question, as it boils down, is whether three age related comments by Ms.
Coutts in the year before Ms. Fairweather’s termination, and one by Mr. Rupard,
generate a reasonable inference of a company-wide—or perhaps region-wide, or

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district-wide—conspiracy to eliminate older servers.

Taken in isolation, these

comments alone would not support Ms. Fairweather’s conspiracy claim.116

The

question, which the Court addresses later, is whether the cumulative impact of these
comments and her discharge after years of service—together with other evidence—
generates a triable issue of discrimination for jury consideration.
3.

Direct Inference From Age Related Comments and
Mistreatment of Ms. Fairweather

The evidence discussed above with respect to an inference of conspiracy could
also conceivably support an inference that Ms. Coutts harbored age-based animus
against Ms. Fairweather personally, and imputed that animus to Ms. Newell’s
decision to terminate Ms. Fairweather.

See Dávila, 498 F.3d at 17 n.3.

Ms.

Fairweather did not squarely raise this argument in her opposition to the motion for
summary judgment, see Pl.’s Opp’n at 12-16, but the cases she cites implicate it. The
argument would run something like this:

Ms. Coutts made three age-related

comments in the year before Ms. Fairweather’s termination, and also used her
position as a supervisor to make Ms. Fairweather’s life difficult at work. This, the
argument would go, gives rise to an inference that Ms. Coutts wanted Ms.
Fairweather personally to be terminated because of her age (rather than to get rid of
older servers in general). Because Ms. Coutts had extensive input into Ms. Newell’s
decision to terminate Ms. Fairweather, this animus should be imputed to Ms. Newell.
Bonefont-Igaravidez, 659 F.3d at 125-26.

116

Ms. Fairweather’s counsel conceded as much during oral argument.

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Factually, Webber is somewhat similar to this case, but it is not close enough
to be decisive. As in Webber, where supervisors of the plaintiff had made
discriminatory remarks in the past and then had input into the decision-maker’s
choice to fire the plaintiff, 417 F.3d at 232-33, here Ms. Fairweather’s supervisor
made age-related remarks in the past and then had input into her termination. The
Webber Court noted that the plaintiff could not produce any evidence that the
supervisors who had made suspect remarks “affirmatively conveyed any alleged
discriminatory animus to . . . the decision[-] maker of record.” Id. at 236. The same
is true here.

The Webber Court then concluded that any inference that the

discriminating supervisor influenced the decision-maker would be “excessively
speculative”—despite the fact that one supervisor testified that “he ‘believed’ that he
could have changed [the decision-maker’s] mind regarding the termination.” Id. at
237.
The reason Webber is factually inapposite is that in Webber the decision-maker
had already made a decision before consulting the discriminating supervisor. Id.
Here, by contrast, Ms. Newell made her decision based on both the customer
complaint and Ms. Coutts’ follow-up investigation. Section II.B.10, supra. In Webber
the discriminating supervisor’s role was to supply additional facts that might
challenge a decision already reached by the ultimate decision-maker; he declined to
do so. Webber, 417 F.3d at 237. By contrast, Ms. Coutts supplied the facts of her
investigation to Ms. Newell, and Ms. Newell exercised her ultimate responsibility for
terminating Ms. Fairweather based largely on Ms. Coutts’ facts. Section II.B.10,

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supra. In sum, Webber does not require a result in Friendly’s favor based on the
relationship between Ms. Coutts and Ms. Newell, but it also does not forbid it.
The Court turns to the nature and timing of the age-related comments
themselves, rather than the relationship between Ms. Coutts and Ms. Newell, to
resolve this issue. The totality of the comments by both Ms. Coutts and Mr. Rupard
strongly suggests age-related bias against Ms. Fairweather: “If people are too old to
do their jobs, I will find somebody else who could”; “Why do you even bother to work,
you don’t need to”; “Listen up, all you older servers, you have to be on top of your
game now because I can no longer protect you”; “We are a whole new Friendly’s; we
are changing our image”; and four or five references to being so old that she probably
served the Last Supper.
The next question is when the comments took place in relationship to her
termination. Under Bonefont-Igaravidez and Mello, if the comments are “temporally
remote from the date of the employment decision in question,” they may not be
deemed “related to the employment decision.” Bonefont-Igaravidez, 659 F.3d at 125
(quoting McMillan v. Mass. Soc’y for Prevention of Cruelty to Animals, 140 F.3d 288,
301 (1st Cir. 1998)). In Mello, the plaintiff, a security guard, was fired for dereliction
of duty on May 18, 1996, and the age-related comments occurred in January and
February of that year. Mello, 2000 WL 762026, at *5, 7. The first occurred when the
plaintiff was working on stripping and polishing a floor, and the second when he
reported a complaint from another employee. Id. at *7. The Court in Mello held these
comments to be “not connected in any way . . . to the decision[-]making process.” Id.

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In Bonefont-Igaravidez, by contrast, the comments were “not temporally remote” from
the termination, but were made by “fellow [workers] in circumstances unrelated to
the . . . termination.” Bonefont-Igaravidez, 659 F.3d at 125.
Here, Ms. Coutts made the comments in either the six months or the year
before Ms. Fairweather’s termination, and the comments had, on their face, a
relationship to her employment. Ms. Coutts’ age-related comments occurred at the
latest about five months before Ms. Fairweather’s termination and are therefore of
approximately the same “temporal[] remote[ness]” as the comments in Mello, which
the Court held not to generate an inference of pretext. Mello, 2000 WL 762026, at *7.
The difference here is that following these comments, Ms. Coutts engaged in a
persistent and determined campaign to pester Ms. Fairweather. A jury would be
entitled, though not required, to infer that Ms. Coutts’ harassment of Ms.
Fairweather was related to the age-related bias Ms. Coutts demonstrated in her
earlier comments.
In sum, viewing all the evidence together in a light most hospitable to Ms.
Fairweather and drawing all reasonable inferences in her favor, the Court concludes
that, in the context of this case, the age-related comments support an inference that
the ostensible reason for her termination was a pretext to fire her for her age.
4.

Cumulative Evidence

This motion demonstrates the danger of breaking down and inspecting each
subpart of a plaintiff’s case, holding it up, poking at it, and finding it wanting without
treating the evidence—as a jury would—as a whole.

Here, even though Ms.

Fairweather does not have an overwhelming case of discrimination by Friendly’s,
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taken as a whole she has presented sufficient facts to survive summary judgment:
probative evidence of (1) inconsistent discipline, (2) inconsistent application of the
first offense termination policy, (3) an inadequate investigation by Friendly’s before
termination, and (4) age-related comments by supervisors followed by a prolonged
period of managerial harassment. Taking these together, the Court concludes that
Ms. Fairweather has presented sufficient evidence to be entitled to her day in court
before a jury.
V.

CONCLUSION
The Court DENIES Friendly’s Motion for Summary Judgment (ECF No. 29).
SO ORDERED.

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 24th day of July, 2014

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