DESCHAMBEAULT v. UBS FINANCIAL SERVICES INC

Filing 46

AMENDED ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - denying 26 Motion for Summary Judgment. By JUDGE D. BROCK HORNBY. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
SUSAN E. DESCHAMBAULT,

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PLAINTIFF
V.

UBS FINANCIAL SERVICES, INC.,
DEFENDANT

CIVIL NO. 2:14-CV-432-DBH

AMENDED ORDER ON DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT1
The defendant has moved for summary judgment. (ECF No. 26.) After
hearing oral argument on December 3, 2015, I DENY the defendant’s motion for
summary judgment. It is a close case, but I conclude that there are genuine
issues of material fact on (1) the reason for the plaintiff’s employment
termination, i.e., whether it was on account of age or solely based on her
performance;

(2) the

date

when

the

employer’s

alleged

discriminatory

termination decision attained the “degree of permanence” required to put the
employee on “unambiguous and authoritative notice” to trigger the statute of
limitations, see LePage v. Bath Iron Works Corp., 2006 ME 130, ¶¶ 11, 15, 909
A.2d 629 (quotation marks omitted); Kezer v. Central Me. Med. Ctr., 2012 ME
54, ¶ 17, 40 A.3d 955, given the continuance of the plaintiff’s pay and “active

In the earlier Order, language at the beginning of subsection (1) of the third sentence was
inadvertently omitted: “the reason for the plaintiff’s employment termination, i.e., whether it
was . . .”

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employee” status until May 10, 2013; (3) whether the employer’s statements were
defamatory (I reject the argument that the plaintiff’s deposition unambiguously
admitted that the reasons given for her termination on the Form U-5 were
accurate—the transcript can also be read as meaning that the plaintiff agreed
that the defendant’s lawyer accurately read the form); and (4) whether the
defendant made the statements in the Form U-5 knowing them to be false,
recklessly disregarding their truth or falsity, or “act[ing] with spite or ill will,”
Rippett v. Bemis, 672 A.2d 82, 87 (Me. 1996), thereby abusing the conditional
privilege protecting the defendant from liability for defamation, see id. (“Whether
a conditional privilege arises in a given circumstance is question of law. . . .
Whether a defendant so abused a conditional privilege is a question of fact.”).
SO ORDERED.
DATED THIS 7TH DAY OF DECEMBER, 2015
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

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