HUNT v. TODDLE INN DAY CARE INC
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S SPOLIATION MOTOIN granting 26 Motion for Summary Judgment; denying 32 Motion By JUDGE LANCE E. WALKER. (CJD)
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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
TODDLE INN DAYCARE INC.,
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
PLAINTIFF’S SPOLIATION MOTION
Susannah Hunt, Plaintiff, alleges in her First Amended Complaint (ECF No. 10)
that her former employer, Toddle Inn Daycare Inc., Defendant, subjected her to harassment
and other disparate treatment based on race.
Defendant filed its Motion for Summary Judgment (ECF No. 26) on April 9, 2021.
Plaintiff filed her “Spoliation Motion to Strike Testimony” (ECF No. 32) on April 30, 2021.
SUMMARY JUDGMENT FACTS
The following statement recites the disputed facts in the light most favorable to
Plaintiff Susannah Hunt.
Defendant Toddle Inn Daycare (“Toddle”) is a corporate entity headquartered in
Scarborough and operates six childcare centers in Southern Maine. Each center has a
director and assistant director who perform on-site operations management, including
employee supervision. These on-site management functions are overseen by staff at the
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company headquarters, where upper level managers and staff perform operational,
administrative, and human resource functions on a company-wide basis.
Susannah Hunt is an African American woman. She went to work for Toddle as a
full-time employee in September 2017 at its Westbrook childcare center. Her starting
position was known as a “floater.”
At all times relevant, Raelene Bodman was the director of the Westbrook center.
The center also had an assistant director. In 2017 and through a part of 2018, the assistant
director was Lindsay Vrabel. Sometime in 2018 – not later than November – and
continuing through the rest of Hunt’s employment, the assistant director was Monique
When Ms. Hunt started she signed a document (“Dear Staff” letter, Def.’s Ex. 6)
advising that “[i]f at any time” a staff member felt the need to speak with someone “about
concerns relating to [their] job such as co-workers, scheduling, etc.” they were to “use the
chain of command to report [their] concerns.” This document also advised staff members
to “talk to [their] management team first” but if their “concerns were not addressed/handled
to [their] satisfaction” to contact Danielle Foley, Toddle’s District Manager/HR. If staff
members still felt they needed to speak with someone regarding their concerns they were
to contact Beth LaSalle, Toddle’s Personnel Director. Finally, if concerns still were not
addressed, staff members were advised to contact Cheryl Carrier, Toddle’s owner.
Telephone numbers and email addresses were provided for on-site managers, as well as for
Foley, LaSalle, and Carrier.
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Ms. Hunt also received a copy of Toddle Inn Child Care Center’s Employee Policies
and Guidelines (Def.’s Ex. 5), which she reviewed during her employment. She also
attended a new hire orientation at which Toddle’s policies and guidelines were reviewed,
including its anti-discrimination and anti-harassment policies. Hunt reviewed the same,
initialed each page, and signed an acknowledgment indicating that she read and understood
Among Toddle’s policies is an equal employment policy. It states:
Discrimination against employees and applicants due to race, color, religion,
sex (including sexual harassment), marital status, sexual orientation, national
origin, ancestry, physical or mental disability, age, military, or veteran status,
or any other status or characteristic protected by law, is prohibited.
Employees who violate this policy will be subject to discipline, up to and
The document also states:
Harassment, discrimination, and retaliation of, or by, employees, vendors,
visitors, customers, and clients is unlawful. Toddle Inn prohibits these forms
of offensive conduct, regardless of whether they are motivated by gender,
race, color, nation origin, ancestry, religion, sexual orientation, age, marital
status, physical or mental disability, military or veteran status, or any other
status or characteristic protected by law. If you feel you are being harassed
or subject to discrimination or retaliation, in any manner, because of your
race, color, national origin, ancestry, religion, gender, sexual orientation, age,
marital status, physical or mental disability, military or veteran status, or any
other protected status or characteristic protected by law you are encouraged
to report and follow the complaint procedure ….
In terms of procedures, the policy instructed “[a]ny employee who believes he or
she has been discriminated against [to] immediately report any incidents to Human
Resources” and stated that “Toddle Inn will not tolerate retaliation against any employee
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who reports acts of discrimination or provides information in connection with any such
complaint.” Id. The policy further stated that any questions should be directed to Cheryl
Carrier and provided an email address for Ms. Carrier.
Toddle Inn’s Employee Policies and Guidelines address discipline, and state:
“[w]hen appropriate, progressive discipline will be used to enforce the disciplinary policy.”
Def.’s Ex. 5. Employees are first to receive a verbal warning where they are “advised of
the problem and how it can be corrected.” Id. This is documented with a “written memo as
to when the verbal warning took place, and for what reason.” Id. If a verbal warning does
not resolve the problem, the next step under the policy is to use a written warning. Finally,
the employee may be terminated if the written warning does not solve the problem.
At her four-week review, Ms. Hunt received positive feedback from Ms. Bodman,
including praise that she had “done an amazing job” and was “a great addition to [the]
family.” Shortly thereafter, in November, 2017, Ms. Hunt received an increase in pay from
$11.50 per hour to $11.75 per hour.
Early in her tenure with Toddle, Ms. Hunt listened to a co-worker make an offensive
statement outside of the workplace. According to Hunt – the account was disputed by the
person in question – the co-worker stated that she has a brother with big lips and her family
teases him and jokes that his mother must have “slept with a [N-word].” Although Hunt
made a point of telling the individual not to use the word due to its offensive nature, Hunt
did not report the incident to a supervisor at the Westbrook center or anyone else in
management at Toddle. Because there is no evidence that any manager at Toddle was aware
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of the incident, let alone evidence that it was even a workplace incident, Hunt’s case is not
supported by the incident.
The first incident that management had to consider occurred in January of 2018 and
involved a “communication issue” between Ms. Hunt and one of her co-workers (not the
above-mentioned individual). Ms. Bodman oversaw a meeting between the two employees
to attempt a resolution. At her deposition, Ms. Hunt agreed that the meeting was an
effective means of confronting the issue and finding a path forward. Nothing in the record
suggests that this initial workplace incident had anything to do with the issue of race.
The “harassment” incident
Later that month, on January 23, 2018, Ms. Hunt received a stern verbal warning
(memorialized in her file) after a co-worker complained to management and stated she was
thinking about quitting because Hunt texted her multiple times, came in early to return a
gift to her classroom, approached her in the hallway at work to discuss non-work-related
issues, and told her that she would meet her in the parking lot after work (Def’s Ex. 10).
There is no evidence that the issue between the women had anything to do with race. In the
paper account that went into Ms. Hunt’s file, Ms. Bodman wrote that the other employee
described Hunt’s behavior as “harassment.” Hunt believes this characterization betrayed
racial bias because she does not believe the other employee would have used the word
harassment and she feels it plays into a stereotype about people with her skin color being
Ms. Hunt never expressed her viewpoint at the time so that the matter might be
addressed then and there. Furthermore, neither party relies on a declaration or testimony
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by the co-worker in question. What can be gleaned from the record is simply that the coworker was sufficiently upset by Hunt’s conduct to bring the matter to management.
Eventually, Hunt and her co-worker worked things out and, in April 2018, they notified
Ms. Bodman of the fact. Bodman told Hunt she would update Hunt’s file to reflect the
same, but she failed to do so.
Ms. Hunt opines that the write up was a racially biased mischaracterization placed
in her file by Ms. Bodman. Hunt testified at her deposition both that she “feels” that the
coworker would not have phrased her complaints in the way Bodman wrote it and that the
woman told her she had not put it in that way. Hunt Dep. at 214. Ms. Hunt’s proposed
additions to the record related to what the co-worker told her succumb to the hearsay rule
and, therefore, do not support an inferential finding that Ms. Bodman falsely characterized
the woman’s complaints. 1 In any event, Ms. Hunt has conceded that the underlying conduct
occurred and she does not suggest that it was improper to warn her not to repeat the
conduct. Ms. Hunt otherwise relies on a subjective critique of the term harass, opining that
the term does not fit for two co-workers trying to work out an issue involving an aspect of
their off-work relationship and suggesting that the term reflects racial animus. However,
and again, Hunt signed the note memorializing the warning without offering any of these
critiques at the time.
After the January incident, Ms. Hunt emailed the corporate office to request an
assignment to a different Toddle center, but her request was not honored and was shared
Defendant presses the hearsay objection in opposition to Plaintiff’s characterization of what her co-worker said.
Reply Statement ¶ 8.
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with her Westbrook supervisors. According to Ms. Hunt, the fact that her request was
shared with her local supervisors “broke” her trust in the corporate office. Pl.’s Statement
Meanwhile, in February 2018, Ms. Hunt was spoken to about appropriate use of
“pack and plays,” 2 including that pack and plays not be used for time outs. Hunt was also
spoken to about use of appropriate language. Hunt explained that she was still learning and
was overwhelmed by children who were biting. At her deposition, she testified that the
counseling she received on these issues was valid and appropriate. The following week,
Hunt received a disciplinary action for continuing to use pack and plays in a manner that
was inconsistent with Toddle’s positive guidance/redirection policy. She was also observed
strapping a child into a chair for 23 minutes with no toys after a biting incident. Hunt admits
this was an appropriate subject of written discipline and states that she was not singled out
because her co-worker also received discipline.
Regardless of these incidents, which evidently reflect the basic realities of early-age
childcare in a group setting with one or two teachers per classroom, Ms. Bodman promoted
Ms. Hunt to a “lead” position in February of 2018. Hunt explained that she was approached
by Bodman about this opportunity because she “was doing so well in the infant room” and
because she was “such a strong positive force.” Hunt Dep. at 149.
Pack and plays are portable, collapsible playpens that can be used to corral small children.
On March 21, 2018, Hunt (and three other teachers on duty that day) received a disciplinary action after an incident
where two children were left in the hallway for twelve minutes. Hunt agreed at her deposition that this was an
appropriate matter to document in an employee’s personnel file.
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The mole incident
In November of 2018, more than a year after coming to work for Toddle, Ms. Hunt
made her first report of a race-related incident to Ms. Bodman. Specifically, one of Ms.
Hunt’s co-workers (presumably Caucasion), while overseeing an activity of placing
storybook character pictures on a refrigerator in the classroom, observed that the picture of
the mole character was missing and said to Ms. Hunt, “What about your face?” Ms. Hunt
reported the incident to Monique Beaulieu, Toddle’s new assistant director in Westbrook,
who, the parties advise, is African American. 4 Ms. Beaulieu then informed Ms. Bodman,
who summoned the co-worker to her office to discuss the matter in the presence of Ms.
Beaulieu and Ms. Hunt. The co-worker apologized and received a verbal warning. During
the meeting, Ms. Beaulieu advised the co-worker that it was not appropriate to make
remarks related to someone’s skin color and she prepared a written note memorializing the
meeting that was placed in the woman’s personnel file. During the meeting, the co-worker
expressed the opinion that she was not racist and stated that she considered a certain boy
of Indian descent to be like her second son. Ms. Beaulieu, addressing the group at one
point, made a remark about “choosing your battles” and not “fighting every single little
thing.” The parties cite Ms. Bodman’s testimony in support of this fact (deposition page
70) rather than Ms. Beaulieu’s.
After the meeting, Ms. Hunt had no further trouble with the co-worker who made
the mole comment. However, Hunt had been shocked by what her co-worker said. She
Ms. Hunt noted in her deposition testimony that her skin tone is darker than Ms. Beaulieu’s and “guessed” that
Beaulieu “doesn’t identify as black.” Hunt Dep. at 196. Beaulieu stated in her deposition testimony that Hunt was
“high maintenance.” Beaulieu Dep. at 13.
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drew a parallel between the dark color of the mole character and her own skin color and
she perceived her co-worker’s comment to be insensitive or racist for this reason. Though
Hunt perceived the comment as indicative of racism, Ms. Bodman testified that she did not
understand the comment to be racist necessarily. The co-worker who was counseled during
the meeting was deposed. At her deposition she testified that she did not think she had been
formally disciplined and that it was her understanding that Bodman wanted her to consider
her audience and to be professional and respectful at all times.
The “black name” incident
In December of 2018, Ms. Hunt reported another race-related incident to Ms.
Bodman. This incident involved yet another co-worker (C.M.) who purportedly misquoted
Hunt’s daughter (who attended the center as a student). According to Hunt, whose version,
though disputed, is credited here, C.M. called her on the phone to share that Hunt’s
daughter said she (the daughter) has a “black name.” Hunt Dep. at 164-165. Later, passing
in the hallway, C.M. once more told Hunt that her child said she has a black name. This
time, the child overheard C.M. and said that C.M. was wrong and that what she said was
that she has black hair.
Hunt told Bodman what C.M. had said to her. Bodman’s immediate response was
to suggest that Hunt talk to C.M. about it. Sometime afterward, Hunt saw Beaulieu and
related the matter to her. When Bodman saw Hunt later in the day, she told Hunt that she
should not have taken the matter to Beaulieu because Bodman had already told Hunt to
work it out with C.M. Hunt considered Bodman’s reaction a form of “aggression.” Hunt
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Dep. at 174. Later that day or the next, Bodman and Beaulieu told Hunt they would look
into the matter by reviewing video.
According to Ms, Bodman, who described the event during her deposition, her
concern was whether C.M. had allowed or participated in inappropriate conduct in the
classroom. For this reason, Bodman reviewed video of C.M.’s classroom to see what
transpired and concluded that C.M. had not done anything inappropriate in the classroom.
Bodman testified she did not attempt to review any video from the hallway camera to see
what C.M. may have said to Hunt there or video from a classroom camera to see if C.M.’s
side of the phone call could be overheard. When Bodman later informed Hunt what was on
the classroom video, she confirmed the daughter’s account that she had not said anything
about a black name. Bodman described the scene that took place among the children as
“quite funny really.” Hunt Dep. at 173. This upset Hunt because regardless of the nature of
the children’s interaction, it was not a funny situation. When she expressed this to Bodman,
Bodman “started getting an attitude.” Id. at 174. The experience left Hunt feeling demeaned
Following this investigation, Ms. Bodman did not issue C.M. a verbal or written
warning or any other form of discipline and, evidently, hoped the matter would blow over.
Ms. Hunt later spoke with Ms. Beaulieu about the incident and complained that she felt
C.M. should have received discipline. According to Hunt, Beaulieu merely shrugged. After
Hunt met with Beaulieu, Bodman called her into the office and told her she should not have
gone to Beaulieu after the fact to complain about Bodman’s treatment of the issue.
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Asked at her deposition whether she felt Bodman and Beaulieu had responded
appropriately, Hunt testified:
I do to an extent. Like, yes, they did watch the video. Yes, they confirmed
that [the daughter] said black hair. But I feel like was there accountability for
[C.M.] as – you know, there’s been, you know, write ups for myself with –
with things that I’ve done wrong. I don’t feel like they did that. I felt like it
was just swept under the rug.
Hunt Dep. at 180. In Hunt’s view, the investigation should have included an attempt to
determine what C.M. said to her, not just what the children were saying in the classroom.
To her, the real issue was what C.M. said because it was a form of bullying.
In January of 2019, Hunt received a pay increase from $11.75 to $12.25 per hour.
In March of 2019, Ms. Bodman received instructions from the corporate office to
implement changes to the staff schedule to assign the teachers with one-teacher classrooms
to work five-day shifts rather than four-day shifts. According to Bodman’s testimony, the
center was short staffed at the time. Bodman Dep. at 86-87. Ms. Hunt, who by that time
worked in a one-teacher classroom, was subject to the new scheduling policy, just like
seven or eight of her colleagues. 5 One employee less senior than Hunt was spared the fiveday schedule because it would have disqualified the employee from participating in certain
government assistance programs. Hunt complained about the change to Beaulieu. Hunt
recounted the session at her deposition in the following terms:
Ms. Bodman testified that Ms. Hunt and Ms. Beaulieu were the only African American employees. Bodman Dep. at
34. Hunt denies this statement of fact (Def.’s Statement ¶ 40) even though it is supported by record evidence. I credit
the statement because Hunt offers nothing of substance to controvert it, effectively conceding the point.
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What happened after you discussed that with Monique?
I -- she understood my concerns, and she -- honestly I feel like she
just -- she was still new, and she didn’t really know where to go from there.
She felt as though if she were to go higher up, that she might have – there
would have been some repercussions for her for going higher up that would
have, you know, gone on to her through working with Raelene still.
Hunt Dep. at 223-24. Hunt further testified that she did not challenge her five-day
assignment with anyone above Ms. Bodman because she felt that there would be
repercussions if she did, based on what she says Ms. Beaulieu said on the topic.
At some point in the chronology, an employee at Toddle’s Westbrook center invited
staff to join her in celebrating her mother’s birthday at a restaurant. Ms. Hunt has offered
statements concerning the matter that are strong on rhetoric but abstract in terms of facts.
As I have for some facts set out above, I will simply relate the cited deposition testimony,
beginning with Hunt’s:
You mentioned something earlier about a Hibachi incident. What was
I believe it was Alex mom’s birthday. We were all invited to go to
Hibachi. Emma and Dani couldn’t make it. Do you want me to go in full
detail of that night?
Yeah. Well, let me ask a follow-up question. So this was an outside
of work social thing that you went with some coworkers from work; is that
Okay. And was there anybody -- any of your -- apart from Emma and
Dani, were there any other coworkers who were invited to that or did go to
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I believe there were several.
How many people went to it?
I’m gauging maybe 12.
Was there anybody there that didn’t work at Toddle Inn?
Some people brought their spouses.
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So what happened that night?
Everything was going fine. We all were laughing and joking around,
but then someone made a comment -- because everybody else had their
entrees -- someone made a comment saying like, oh, they must not have -oh, someone said, oh, why don’t you have your food, and they were referring
to another coworker. And she said, I don’t know. Maybe it’s because I’m
vegan. And Dani and Emma, they are vegan. So I was just, like, okay, like,
just sitting there thinking, like, okay, you could have used anything else to
say but you chose to say that. I didn’t think it was directed at them, per se.
So I wouldn’t of -- well, let me get to the end of the story, and then I’ll go
back to it.
But -- so then everyone just kind of chuckled, and then I think
someone made a comment to Raelene. And she goes, well, not me; I like my
meat. And so I just -- I don’t know. It just rubbed me the wrong way. So the
next day I did talk to Emma about it because we were in a classroom together.
I was, like, no one mentioned anyone’s name or anything, but I just thought
it was a little odd, just the little comments. And she did tell her wife about it,
and they did mention that, like, you know – I didn’t say specifically that
people were targeting them or, like, used their name in any of it.
And then we ended up -- at the end of the day we had a meeting in
Raelene’s office about the incident. And I was pretty much screamed at, and
I was nothing but respectful when I was talking about it. And even Dani and
Emma seconded what I was saying. And Raelene mentioned that somebody
said, well, oh, you said people were saying their names and stuff like that.
And even both Dani and Emma said that Susannah never said that to us, so
that must have just got added in. And it just felt like Raelene didn’t want to
hear anything I had to say, and she continued to scream at me. And then I did
raise my voice, and I said, you know what, I’ve gone through so much stuff
here. This is absolutely ridiculous, and none of the times that I’ve been in the
office and told you guys I never said that or this didn’t happen you’ve ever
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believed me. And Raelene pretty much just didn’t want to hear it, and she
said, well, if you don’t want to work here, there’s the door.
Hunt Dep. at 98-102.
Ms. Bodman’s account follows:
I want to ask you about an incident involving a dinner at Hibachi.
Do you recall an incident?
What do you know about that?
So there was a teacher who was leaving. She had only been here for
about a year. She said, does anybody want to go out for Hibachi. Again, not
a Toddle Inn sanctioned event or whatever, so some people went, some
people didn’t. It was pay on your own. It wasn’t anything forced. And it
wasn’t anything at Hibachi. It was when we came back from Hibachi the next
day that there was all this buzz around the whole building about Susannah
going around and talking about something that somebody had said at the
dinner and she was just talking to all kinds of different staff and staff did
come to me that day. And at the end of the day, I had all of those people just
come into the office and spoke to all of them about this is the stuff we have
been talking about, this is where it gets stressful, like why are we making this
big buzz the next day going around talking to people who weren’t there
telling them stuff -- like it didn’t have anything to do with the pre-K teacher
who wasn’t there and that those were the things that made work stressful for
What do you mean by buzz?
Like Susannah running around and doing what we talked about
earlier, saying to this teacher, oh, you should have heard this comment that
so and so made, and then that teacher came to me and said, I wasn’t there, I
don’t care what that teacher said, why didn’t she just talk to that teacher. And
again, this wasn’t a Toddle Inn scheduled event. It was like do you want to
come to dinner, I’m leaving and going to take another job, come join us and
go to dinner, pay on your own.
So people came to you and said that Susannah was talking about --
Yes, the dinner.
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-- the dinner?
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Whatever she had overheard at the dinner.
But you said that people came to you in the workplace that were
complaining about what was going on in the workplace?
That there was a buzz in the workplace. What was that?
They were just coming saying that Susannah came and talked to me
about what was said at the dinner and I’m like –
At the workplace?
And so when an employee at the workplace came to you at your
workplace and said that Susannah was saying things in the workplace, did
you look at the tapes?
I did not.
Okay. You just took the word for it of the employee who came into
You just took their word for it?
The employees, yes.
Did you ask Susannah about it?
Yes, I do remember and she said somebody had made a comment
about a couple of the girls being vegans.
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And what did she say about -- did you ask her if she was talking to a
bunch of different employees about it?
She said she was, yes.
She said she was talking to other people at work about it?
And some of the other girls who the supposed comments were about
said that other people were coming to them as well.
Other people were coming to them and saying what?
That Susannah was talking about comments made at a dinner that they
also did not attend.
Did Susannah ever complain to you about the way she was treated
with regard to that situation?
No, and I wasn’t singling her out, I was talking to the whole group of
Bodman Dep. at 91-95.
Sometime in March of 2019, Ms. Beaulieu approached Ms. Hunt at Ms. Bodman’s
request to ask what Ms. Hunt was talking to another coworker about in the parking lot.
Beaulieu’s inquiry revealed that Bodman had observed the parking lot talk by means of a
video camera. Hunt asked Beaulieu why she was being monitored like “an inmate.” Hunt
also asked whether Bodman ever asked Beaulieu to see what any other coworkers talked
about in the parking lot. Beaulieu denied being asked to make a similar inquiry of anyone
else. Hunt Dep. at 237, 251.
We aren’t babysitters
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Sometime in the spring of 2019 (according to the Amended Complaint), Hunt was
criticized at a staff meeting for using the term “babysit.” In Hunt’s words:
So we had a staff meeting, and they, Raelene and Monique, slash -- I forget
her name. But she’s been -- she was with the company for a while, too. It
wasn’t Donna. But she used to babysit this new hire, who was a boy, who
came to work with us. And I just said, so you used to babysit him. And then
everyone -- a couple people jumped down my throat. Pretty much one person
said, oh, we don’t sit on babies. And then Raelene commented, we aren’t
babysitters. We’re early childhood educators, with a little attitude twang in
her voice. And then it just was, you know, kind of taken as a joke. But then
Donna stood up after me and was describing something and used incorrect
grammar and said somewheres, but nobody tried to correct her for that, but
yet I was corrected for saying babysitter as opposed to saying early childhood
Hunt Dep. at 231-32.
On April 29, 2019, Ms. Hunt texted Ms. Beaulieu and stated that she felt it was time
to move on. Beaulieu encouraged Hunt to provide a two-week notice if she chose to leave.
It was not the first time Hunt had raised the issue of leaving with Beaulieu. Beaulieu
testified at her deposition that Hunt had suggested it several (eight to ten) times and that,
at the beginning, Beaulieu had encouraged her to stay by asking what they could do to help
her. Eventually, Beaulieu advised her to give notice before leaving, observing that Hunt
had had good employment with Toddle. Hunt adds that in her discussions with Beaulieu
she had also stated that she felt she did not have the opportunity for personal growth at
Toddle because she felt that her character had been questioned.
On April 30, 2019, Hunt texted Beaulieu to call out from work. The following day,
May 1, a Wednesday, she emailed her notice to Bodman and Beaulieu, stating she would
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continue to work through May 10, a Friday. In the body of her email, Hunt wrote: “I thank
you for the opportunity in working with this company, and having space so my daughter
could be close. I feel as though I did not excel in personal growth in my time here. I have
found a different path to my journey that I must proceed on.” Def.’s Ex. 22. She did not
complain of any unfair treatment, whether based on race or any other factor. Hunt did not
report for work that day.
On May 2, 2019, Bodman notified Hunt by email that her resignation would be
accepted effective immediately. Bodman testified at her deposition that she consulted with
Toddle’s main office and was advised 6 that because Hunt had called out two days in a row
and had another unpaid day scheduled for May 3, it would be fine to let her go at that time
due to concern whether her attendance would be reliable during the next week. 7 Bodman
also advised Hunt that arrangements would be made so that she could pick up her
daughter’s things and a copy of her personnel file.
Some days later (evidently the following week), Hunt presented herself at the center
to retrieve her things. Because she arrived during class time, she was not allowed to retrieve
her belongings and someone else retrieved them for her to minimize class disruption.
Hunt’s daughter’s papers had been removed from their binder and placed in a folder by her
Plaintiff has not objected to this testimony, which after all was provided in response to her own counsel’s questioning.
Bodman Dep. at 102. Instead, she denies the assertion that she would have been unreliable in attendance. Hunt Dep.
at 234. Whether the idea came from corporate or not, it is the non-discriminatory reason provided by Defendant for
its handling of the matter.
Under Toddle’s policies, employees who voluntarily resign are “asked to provide at least a two weeks’ notice” but
Toddle “reserves the right to determine whether the employee will be allowed to work the 2 weeks, or whether the
separation should occur sooner.” Def.’s Ex. 5.
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teacher. Hunt was offended that the papers were removed from the binder. Later that day, 8
Hunt placed a call to the corporate office because she wanted to have a conversation with
corporate management about the way she had been treated. She told the person who
answered the phone that she “really needed to talk to someone in corporate,” asking for
either Danielle or Heather. She was told they were not in that day and to try again
tomorrow. Hunt called back the next day, to similar effect, but was told someone would
call her back. Nobody called her back. When Hunt spoke with the person on the phone, she
said the call was important but did not explain the reason for her call because she “didn’t
feel like it was anybody at that center’s business.” Hunt Dep. at 257.
Plaintiff’s Motion to Strike
In connection with her Response to Defendant’s Statement of Material Facts, Ms.
Hunt has filed a “Spoliation Motion to Strike Testimony” (ECF No. 32). Through the
Motion Ms. Hunt seeks to strike from the summary judgment record Toddle’s assertion
that Ms. Bodman reviewed a DVR of what may have transpired in the classroom related to
the “black name” incident, even though the testimony is consistent with the report of Hunt’s
daughter that she never said she had a “black name” and even though Hunt herself cites the
testimony in support of her own additional fact statement paragraph 23. In her view, Toddle
should have preserved the classroom recording (as well as recordings from other cameras)
and the failure to do so should be viewed as a kind of admission that the content of the
To determine the timing, I rely here on Ms. Hunt’s testimony that she placed the first call the same day that she went
to the center to collect her things and that she placed the call the week after giving her notice. Hunt Dep. at 254.
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recordings was not favorable to Toddle’s anticipated assertion of the “Faragher-Ellerth
Affirmative Defense.” Spoliation Motion at 1, 11.
The First Circuit has described the Faragher-Ellerth defense as follows:
Under Title VII, an employer is subject to vicarious liability for …
harassment by an employee’s supervisor which does not constitute a tangible
employment action. But the employer may prevail if it demonstrates a twopart affirmative defense: that its own actions to prevent and correct
harassment were reasonable and that the employee’s actions in seeking to
avoid harm were not reasonable.
Chaloult v. Interstate Brands Corp., 540 F.3d 64, 66 (1st Cir. 2008) (citing Faragher v.
City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 765 (1998)). Evidently Ms. Hunt contends that the failure to conduct a more expansive
review of recordings was itself a form of supervisor harassment, since neither of the
underlying incidents involved misconduct by a supervisor. For purposes of summary
judgment, she apparently seeks to preclude any testimony about what may have appeared
on recordings and would like the Court to entertain, instead, an “adverse inference” remedy
associated with the alleged spoliation of evidence.
Concerning the mole incident, the employee in question admitted making the
statement. Given this context, I see no reason why it would have been necessary to review
a recording merely to confirm what Ms. Hunt asserted and the employee admitted. In any
event, there is no testimony to strike about reviewing recordings because there is no
testimony that a recording was reviewed.
Concerning the black name incident, both Bodman and Hunt assert in their
statements that Bodman reviewed a DVR recording that captured a child-led discussion
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about hair color. Both parties agree that Bodman at least did that much to investigate Hunt’s
report. I, therefore, see no reason to preclude testimony to that effect. As for whatever else
may have been ascertainable from the feed of that same camera or a hallway camera,
Bodman would be permitted to testify that she did not attempt to find out, just as Hunt and
her counsel would be able to ask her why she limited her investigation. But Bodman’s
failure to investigate whether she could overhear a phone call or hallway remark does not
involve a representation about the content of a video recording; it simply is a representation
that she limited her investigation to what transpired with the children in the classroom. I
am not persuaded that that kind of testimony should be precluded or that a spoliation
instruction / adverse inference is warranted given this presentation.
Finally, the standard that applies for a spoliation instruction also does not support
relief in this case. Under the circumstances known to Bodman at the time (drawn from the
summary judgment record), I do not agree with Hunt that Bodman or anyone else should
have anticipated a lawsuit against Toddle based on either or both incidents. Bodman would
have understood that Hunt was upset by the perceived lack of sensitivity on the part of her
co-workers, but a reasonable person in her position would not have jumped to the
conclusion that Toddle, the employer, had thereby discriminated against Hunt by allowing
a co-worker to abuse her. Consequently, I do not find any basis in the record to conclude
that Toddle should have recognized the need to preserve evidence. 9 Because there is no
The record reflects that Toddle’s security camera hardware, a DVR system, overwrites itself approximately every
30 days. Def.’s Opp’n to Pl.’s Spoliation Mot. at 4 (ECF No. 37). The incidents in question occurred in November
and December of 2018. Ms. Hunt gave her notice on May 1, 2019. Hunt’s counsel requested that Toddle preserve
electronic documentation by letter dated July 18, 2019, addressed to Ms. Bodman at the Westbrook facility, evidently
counsel’s first communication with Toddle concerning litigation.
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basis in the record for me to conclude that Bodman or anyone else at Toddle acted
negligently toward a serious evidentiary concern of which they were aware, let alone with
actual intent to deprive Hunt of evidence, Plaintiff’s request for a spoliation instruction is
denied. See, generally, Fed. R. Evid. 37(e)(2) and Advisory Committee Note to subsection
(e)(1) and (e)(2) (2015 Amendment). 10
Defendant’s Motion for Summary Judgment
In six counts, 11 Susannah Hunt advances two theories of relief: harassment (hostile
work environment) and disparate treatment based on race. Concerning harassment, Toddle
argues that Ms. Hunt’s claims are not substantiated by the record because the incidents of
which she complains were neither severe nor pervasive and because Toddle neither failed
to address Hunt’s concerns nor permitted Hunt’s coworkers to engage in repeated acts
demonstrating or suggestive of racial insensitivity. Concerning disparate treatment, Toddle
argues Hunt’s claims fall short because she cannot demonstrate that she suffered an adverse
employment action, let alone that Toddle harbored or demonstrated a racial bias in its
handling of any matter to which Hunt took offense.
Hunt states in her reply memorandum in support of spoliation relief that she disagrees with the application of the
standards recited in Rule 37(e). Plaintiff’s Reply at 1, n.1 (ECF No. 41). However, she also observes that the Rule is
itself premised on case law. Id.
The counts set forth in Hunt’s First Amended Complaint are as follows:
Count I – alleged discrimination in the form of harassment/hostile work environment/constructive
discharge in violation of the Maine Human Rights Act. See 5 M.R.S. §§ 4553(2), 4572, 4621.
Count II – alleged disparate treatment in violation of the Maine Human Rights Act. See id.
Counts III & IV – parallel claims alleging civil rights deprivations in violation of 42 U.S.C. § 1981.
Count V & VI – parallel claims alleging violations of Title VII. See 42 U.S.C. §§ 2000e, 2000e-2,
The parties apply the same legal standards to the claims despite the citation of different statutory regimes. I follow
their lead in that regard.
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Summary judgment is appropriate “if 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). As cautioned by the Supreme Court, “the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no genuine issue of material
fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A material fact is one
that has the potential to determine the outcome of the litigation. Id. at 248; Oahn Nguyen
Chung v. StudentCity.com, Inc., 854 F.3d 97, 101 (1st Cir. 2017). To raise a genuine issue
of material fact, the party opposing the summary judgment motion must demonstrate that
the record contains evidence that would permit the finder of fact to resolve the material
issues in her favor. See Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.
1. Harassment / Hostile Work Environment
In opposition to Toddle’s Motion Hunt argues that the totality of the circumstances
would support a verdict in her favor because, primarily, she was subjected to “three
objectively and subjectively offensive racial statements that were made to her by her white
co-workers,” which incidents she describes as “flashpoints” that Toddle failed to correct,
thereby causing “Hunt’s entire work experience to be poisoned.” Pl.’s Opp’n at 8 (ECF
No. 30). The three flashpoints to which she refers are one co-worker’s use of the N-word,
another’s suggestion that her picture could substitute for the picture of the mole character,
and a third’s claim that Hunt’s daughter said she had a “black name.” Id. at 8-11. Hunt also
argues that Ms. Bodman engaged in harassment by not coming down hard on these co23
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workers for their insensitive statements and by taking Hunt to task for going to Ms.
Beaulieu to criticize Bodman’s initial reaction to her report concerning the “black name”
incident, which consisted in telling Hunt to work it out with C.M. Id. at 11.
In order to lay the groundwork for a favorable jury verdict at trial on a claim of racebased hostile work environment, a plaintiff must demonstrate the following: the experience
of racial harassment, which harassment was sufficiently severe or pervasive to alter the
conditions of employment and create an abusive work environment, and a reasonable basis
for imposing employer liability. Garmon v. Nat’l R.R. Passenger Corp., 844 F.3d 307, 317
(1st Cir. 2016). For an employer to be found liable to an employee, the record must support
a finding that the employer knew of and tolerated circumstances that altered the terms and
conditions of the employment relationship. Id. To alter the terms and conditions of
employment, the circumstances must be sufficiently serious to support a finding that they
amounted to “severe or pervasive” discriminatory treatment viewed objectively; it is not
enough (though it is necessary) that the circumstances were also perceived or internalized
that way by the plaintiff. Id. See also Douglas v. J.C. Penney Co., 474 F.3d 10, 15 (1st Cir.
2007); O’Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001). And when the
“flashpoint,” to borrow Hunt’s term, is conduct on the part of co-workers, then generally
“the plaintiff must show that the employer is liable either for creating or for tolerating [the
resulting] atmosphere.” Wilson v. Moulison N. Corp., 639 F.3d 1, 7 (1st Cir. 2011). That is
ordinarily achieved by presenting evidence “that the employer knew or should have known
about the harassment yet failed to take prompt and appropriate remedial action.” Id.
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“[S]ummary judgment will lie when the undisputed facts show that a reasonable jury could
not help but conclude that the employer’s response was both timely and appropriate.” Id.
When these standards are applied to the record in this case, no reasonable jury could
return a verdict in favor of Ms. Hunt on her hostile work environment claim because the
circumstances brought to the attention of Hunt’s supervisors 12 were not indicative of a
pervasively abusive work environment and, assuming for the sake of argument that the
mole incident and the black name incident were both so objectively severe that they could
be considered something worse than “isolated incidents,” 13 they were addressed by Ms.
Bodman and Ms. Beaulieu, and the alleged offenders, who had never before displayed
insensitivity, never again engaged in any offensive conduct. Succinctly stated, although the
supervisory reaction to Ms. Hunt’s reports was neither overtly inquisitorial nor
disciplinarian in nature, in both cases it evidently prevented any further incident with the
employees in question and Plaintiff’s evidence fails to raise a genuine issue of employer
toleration of an abusive work environment. Finally, because the record does not raise a
genuine issue in support of the hostile work environment claim, it likewise cannot support
a finding of constructive discharge. See Lee-Crespo v. Schering-Plough Del Caribe Inc.,
I have excluded from my discussion the unreported use of the N-word by an employee at an out-of-work social
gathering because nothing in the record would justify holding Toddle responsible for failing to respond to an out-ofwork incident Hunt never reported.
“[I]solated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and
conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal quotation marks
omitted). I do not take issue with Ms. Hunt’s report of the incidents. Without question she was right to raise her
concerns and object to the behavior she attributes to her co-workers. However, based on my review of the record, I
also conclude that a reasonable jury could not characterize the two race-related incidents in question as “extremely
serious” transgressions justifying employer liability in the absence of a stern disciplinary sanction where informal
counseling occurred and the conduct was never repeated by the offending employee.
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354 F.3d 34, 45 (1st Cir. 2003) (requiring “intolerable” working conditions, a standard that
is more difficult to establish than the severe or pervasive standard that applied to a hostile
work environment claim). 14
2. Disparate Treatment
Ms. Hunt argues she was treated more severely when it came to disciplinary matters
and that this double standard was a form of adverse employment action. Pl.’s Opp’n at 16.
Specifically, she asserts that the stern warning she received about harassing a co-worker in
the workplace far exceeded the managerial reaction to her two reports of racial insensitivity
in the workplace by co-workers. Id. at 16-17. She also argues that her position is fortified
by Ms. Bodman’s failure to correct the record placed in her personnel file after Bodman
learned that Hunt and the co-worker had mended fences. Id. In addition, Hunt lists the
failure to keep her on a four-day schedule, denial of vacation time, excessive monitoring,
and Bodman’s expression of ire when she exclaimed, “There’s the door!” Id. at 18.
The First Circuit has summarized the constructive discharge standard as follows:
Constructive discharge can be shown where a plaintiff's working conditions were “so onerous,
abusive, or unpleasant that a reasonable person in [her] position would have felt compelled to
resign.” Suárez v. Pueblo Int’l, Inc., 229 F.3d 49, 54 (1st Cir. 2000) (citing Vega v. Kodak
Caribbean, Ltd., 3 F.3d 476, 480 (1st Cir. 1993)). While “[i]t is not enough that a plaintiff suffered
‘the ordinary slings and arrows that workers routinely encounter in a hard, cold world,’” Lee–Crespo
v. Schering–Plough Del Caribe, Inc., 354 F.3d 34, 45 (1st Cir. 2003) (quoting Suárez, 229 F.3d at
54), we have nevertheless cited with approval the Seventh Circuit's admonition that “[w]hen an
employer acts in a manner so as to have communicated to a reasonable employee that she will be
terminated, and the plaintiff employee resigns, the employer’s conduct may amount to constructive
discharge.” EEOC v. Univ. of Chicago Hosps., 276 F.3d 326, 332 (7th Cir. 2002); see also TorrechHernández v. Gen. Elec. Co., 519 F.3d 41, 50–51 (1st Cir. 2008). In other words, “[a] person who
is told repeatedly that [s]he is not wanted [and] has no future ... would not be acting unreasonably
if he decided that to remain with this employer would necessarily be inconsistent with even a
minimal sense of self-respect, and therefore intolerable.” Hunt v. City of Markham, Illinois, 219
F.3d 649, 655 (7th Cir. 2000) (emphasis added).
Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 96–97 (1st Cir. 2018) (some citation omitted).
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To justify a trial verdict in her favor, Ms. Hunt must be able to present evidence that
she suffered “some objectively and materially adverse action” that Toddle imposed on her
because of her race or because of her complaints of racially insensitive remarks made by
her coworkers. Bhatti v. Trustees of Boston Univ., 659 F.3d 64, 73 (1st Cir. 2011).
As for the incidents involving supervisory criticism, “criticism that carries with it
no consequences is not materially adverse and therefore not actionable.” Id. Given this
standard, a jury could find that Hunt was subjected to unfair criticism and yet not return a
verdict in her favor. I have in mind here the verbal warning a supervisor gave her
concerning her interactions with one employee (and Bodman’s subsequent failure to
modify the note in Hunt’s file), the “if you don’t want to work here, there’s the door”
statement, and the overwrought concern about what was transpiring in the parking lot.
However, given the legal standard that governs employer liability, the jury could not
impose liability on Toddle based on these criticisms “because none carried with it any
tangible consequences.” Id.
The matters that remain are the change in Hunt’s schedule and the initial denial but
eventual grant of her vacation request. While these kinds of concerns relate to tangible
conditions of employment, still the record does not suggest that Hunt was singled out for
less favorable treatment than her white coworkers. Seven or eight of Hunt’s white
colleagues were likewise changed to a five-day schedule. Also, the vacation time Hunt
wanted she ultimately received. Thus, there is no basis in the record for a jury to
compensate Hunt in damages for any materially adverse employment action.
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Finally, there is the matter of Hunt’s resignation, which involved Toddle’s
determination that she not serve out her notice period and the subsequent failure of
personnel at the corporate headquarters to engage with Hunt after she resigned from
employment. As to the first issue, the record establishes that Hunt gave a truncated notice,
did not suggest in her notice that her decision was motivated by perceived injustices in the
workplace, took leave on the two days leading into her notice period, and had another day
of planned absence inside the notice period. Although Hunt asserts that she could have
substantiated the unauthorized absences with doctor’s notes, there is no evidence that she
made that representation at the time. Furthermore, Toddle acted within its rights when it
relieved Hunt of the expectation that she honor her notice period. After all, Hunt’s notice
made no mention of her belief that she was the victim of discrimination in the workplace.
Had she expressed her belief and had Toddle acted in the same fashion, then a jury might
infer that the decision was a reaction to protected activity, but instead the record presents
an eminently reasonable justification for Toddle’s decision and nothing to suggest that the
decision was a pretext for discrimination based on race.
Finally, Hunt maintains that Toddle should have been receptive to her attempt to
communicate after she resigned, based on her nonspecific phone calls to the corporate
office that included no mention of perceived discriminatory treatment. Plaintiff has not
made me aware of any precedent in which it was determined that the statutes that give rise
to Hunt’s claims impose a legal obligation on employers to institute exit-interview
procedures for employees to air grievances. Nor, in my view, would it be appropriate for
me to issue such a ruling here, given that trial courts are customarily limited to the law and
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record as they exist. The employment history in this particular case does not support a
finding of a hostile work environment or the imposition of some other materially adverse
employment action prior to Hunt’s voluntary resignation.
3. Summary Judgment Conclusion
When viewed in the light most favorable to Plaintiff Susannah Hunt, the summary
judgment record may permit a jury to find that she experienced two racially insensitive
encounters in the workplace involving coworkers. The record may also permit the jury to
find that Plaintiff experienced unfair criticism during the course of her employment.
However, the record would not permit the jury to find that Plaintiff’s supervisors created,
enabled, or tolerated a severely or pervasively “abusive” work environment or subjected
her to any materially adverse employment action based on race. Consequently, Defendant’s
Motion for Summary Judgment is granted.
For the reasons set out in Discussion Section A, Plaintiff’s Spoliation Motion to
Strike Testimony (ECF No. 32) is DENIED. For the reasons set out in Discussion Section
B, Defendant’s Motion for Summary Judgment (ECF No. 26) is GRANTED. Judgment
will enter for Defendant on all six counts of the First Amended Complaint.
Dated this 9th day of September, 2021.
/s/ Lance E. Walker
UNITED STATES DISTRICT JUDGE
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