Opinion
Civil Action CV-19-10
07-27-2023
HELEN CRABTREE Plaintiff v. CENTRAL MAINE MEDICAL CE Defendant
DECISION AND JUDGMENT
Plaintiff Helen Crabtree (hereafter "Crabtree") sued Defendant Central Maine Medical Center (hereafter "CMMC") for employment discrimination. Trial was held and on May 11, 2023 the jury returned a verdict finding CMMC liable for employment discrimination and awarded her $1.00 in compensatory damages. Pursuant to its equity jurisdiction, the court will now address the equity remedies of reinstatement, back pay, and front pay. Ginn v. Kelly Pontiac-Mazda, Inc., 2004 ME 1, ¶7.
Pursuant to 5 M.R.S. A. §4613(2)(B)(2), upon a finding of discrimination the court may issue an order to employ or reinstate a victim of unlawful employment discrimination, with or without backpay. Maine Human Rights Com. v See. Auburn, 425 A.2d 990, 998 (Me. 1981).
1. Back pay.
The Law Court has approved the Superior Court's application of the federal rule in determining back pay under Maine statute. Maine Human Rights Com. v See. Auburn, 425 A.2d 990, 996 (Me. 1981). A prevailing discrimination claimant is presumptively entitled to back pay which would have accrued from termination until entry of judgment, provided it is made to appeal' that reasonable diligence was exercised in the effort to secure other suitable employment. Quint v. A.E. Staley Mfg. Co., 172 F.3d 1,15 (1st Cir. 1999). However, backpay awarded for unlawful employment discrimination is to be reduced by actual earnings on another job during the pertinent period, or by whatever amount the victim could with reasonable diligence have earned during that time. Maine Human Rights Com. v See. Auburn, 425 A.2d 990, 999 (Me. 1981); see also Maine Human Rights Comm. V. Department of Corrections, 474 A.2d 860, 869 (Me. 1984); Walsh v. Town of Millinocket, 2011 ME 99, ¶ 34. And the employer has the burden to prove that the employee could have mitigated the damages by finding other employment. Id. Stated otherwise, the employer must show that though substantially equivalent jobs were available in the relevant geographic area, the claimant failed to use reasonable diligence to secure suitable employment. Quint v. A.E. Staley, 172 F.3d at 16.
To properly address back pay and whether CMMC met its burden of proving Crabtree could have mitigated her damages, the court feels it is necessary to first consider Crabtree's work history prior to her not being hired by CMMC in 2015.
Crabtree grew up in Kenya and moved to the United States in 1992 when she was 31 year's old. She initially lived in New York and worked a variety of part time or temporary jobs while also attending school. She then moved to Rhode Island again working part time jobs and also self-employed tutoring teenagers. In 2009 through 2012, Crabtree was self employed as a chauffeur. Crabtree moved to Maine permanently in 2012. Some of her work prior to moving to Maine was at businesses that provided some form of health care, but Crabtree herself was never involved in trained patient care, but instead in ministerial type activities. Prior to moving to Maine, she also worked some with her church conference, The court is left with the impression Crabtree's work before moving to Maine in 2012 was not permanent or full time in nature, but more intermittent.
Soon after moving to Maine in 2012, Crabtree became married. Her husband discouraged her from working and the relationship became abusive. They divorced in 2015. Crabtree had not worked or been gainfully employed in the two and a half year's prior to her applying at CMMC. Crabtree would have been 54 years old at that time. In short, at the time Crabtree applied at CMMC she had a limited and modest work history.
To address back pay the court believes it is also warranted to review what position Crabtree had applied to at CMMC. In 2015 Crabtree applied to CMMC's "Earn While You Learn" Program. ("EWYL"). This was a program designed to train applicants to become CNA's with the benefit of being paid while attending the school in return for a commitment to work at CMMC upon graduation. Crabtree was qualified for acceptance into the program. But the program none the less required the applicants to attend and successfully complete the 8-week training before becoming hired as a licensed CNA. Although not directly relevant, we will never know if Crabtree would have in fact graduated from the program and become licensed as a CNA. Also, the position of a CNA is certainly within the realm of healthcare, but it does not require extensive training, and as stipulated to, paid less than $12 per hour. It was an entry position. And Crabtree had no particular experience or training prior to applying to the program. These are potential factors to consider when addressing whether substantially equivalent jobs were available. The court will now review the facts relevant to whether CMMC met its burden of proving Crabtree could have mitigated her damages.
The CNA position through the EWYL program that Crabtree applied for in September 2015 was a 24 hour per week position that paid $11.79 per hour. Crabtree had no medical training at that time other than as a phlebotomist technician. After not being hired by CMMC in September 2015, in October 2015 Crabtree engaged with the Career Center in Lewiston and received 6 hours of training in job search strategy. Admitted in evidence is Crabtree's job search that lists 40 entries. (See Plaintiffs Ex. 1, PL000478-000479). Most of the listings do not indicate a date, and many of the entries are for the same prospective employer. For example, there are 7 entries for Bates College, and several other businesses with two or more entries suggesting there may be double entries for the same search (i.e. Town of Gray, Proctor and Gamble, Hilton Garden). Many entries do not identify the position applied for, leaving the court doubting if it was a realistic search, (i.e. Harvard University, Middlebury College). From testimony, the court infers tire majority of the listings on the job search were from October 2015 through 2018.
In the Spring of 2017 Crabtree did successfully secure a job with Central Western Maine Workforce Initiative. This job paid $18.00 per hour, significantly greater than the CNA position at CMMC, and the hours were similar. Crabtree worked for the Workforce Initiative from May 2017 until her layoff on October 31, 2017.
After October 2017, Crabtree's job search efforts have been minimal and inadequate. Again, the only job search admitted in evidence indicates only a couple contacts after her termination from the Workforce Initiative. Crabtree was offered a job with TDBank as bank specialist but she declined the position because it conflicted with Japanese language classes she was attending at Bates College. She also turned down a job offer at Hilton Garden because of her own assessment she could not do the job. In 2018 Crabtree registered with Premier Staffing but never accepted any assignments.
In 2021 Crabtree worked for a very brief time at DaVinci's Eatery in Lewiston. She testified she left the position because it didn't work out for her. Yet she also testified that the owner of DaVinci's invited her to return, but she didn't because of the time conflict with her language classes.
Crabtree has acknowledged that since 2019, there have been long periods of time that she did not look for work. Yet through these years, Crabtree has been able to devote significant periods of time to study other languages, including Japanese and Hebrew. Indeed, Crabtree is well schooled in foreign, languages and claims to be fluent in six different languages. However, as rewarding as it may be to have become well versed in other languages, the court finds that those efforts have not lead to securing a productive job. For sure, Crabtree's dream of working at the Japan Olympics sounds exciting, but such aspirations have not secured an actual job. And her attendance at these foreign language classes certainly limited her time to either search for work or commit to work if offered employment.
Finally, there was evidence at trial that there were Earn While You Learn programs at other hospitals within an hour commute of Lewiston, including at Maine General, Midcoast Hospital, and Vetran's Affairs. The details of those other programs were not specified at trial. But what was clear was Crabtree had no interest in other programs, as despite her claims she wanted to work in the healthcare field, she testified she would not consider such programs due to the travel. She of course never applied for CNA training programs that charged tuition due to cost.
Although it is a close call, the court finds that CMMC comes up just a bit short of meeting its burden of showing that Crabtree failed to mitigate her damages prior to her securing a position with the Workforce Initiative in May, 2017. However, after she was layed off from that position in October, 2017, Crabtree's efforts and diligence at finding other employment has been inadequate, and well below diligent. Since September 2015, in over 7 and a half years, Crabtree has worked only two jobs, both part time, for a total duration of just six months. Her work search after 2017 has been woefully inadequate, and she admittedly went long periods with no search at all. She in effect removed herself from the work force. These findings are in contrast to the stipulated facts that in 2016, Central and Western Maine held 28% of the State's share of employment vacancies, there were 8,741 vacant positions in the region, there was an above average demand for workers in healthcare and social assistance, and there were 687 vacant healthcare support positions in the region. See Joint Stipulations of Facts, Joint Ex. 15, ¶ 33,34.
Accordingly, the court finds that CMMC has met its burden of proof and proven by a preponderance of the evidence that Crabtree failed to exercise reasonable diligence in finding other employment after October 2017. To be clear, the court finds CMMC has proven substantially equivalent jobs to an entry level CNA position were available in the region, but that Crabtree failed to use reasonable diligence to secure suitable employment, be it as a CNA, or other similar entiy position. The court therefore awards back pay for the limited period of September 15, 2015 through May 19, 2017 for a total of $24,55 8.00 (Remainder of 2015 - $4,244 ($11.79/hour x 3 60 hours); 2016-$14,664 ($11.75/hour x 1248 hours); 2017 until May 19- $5,650 ($11.77/hour x 480 hours)). (See Joint Stipulation of Facts, Joint Ex. 15, ¶ 32 for hourly rates,) No back pay shall be awarded after May 19,2017. Prejudgment interest shall be awarded as allowed by 14 M.R,S.A. § 1602-B(5) from the date of the filing of the complaint with the court.
2. Reinstatement.
Crabtree concedes reinstatement is not feasible under the current facts. See Plaintiffs Post-Trial Damages Brief at 6. CMMC is not currently offering a EWYL CNA program, and her career plans have changed. Id.
3. Front Pay.
Front pay is an available remedy for unlawful employment discrimination when reinstatement is not available. Walsh v. Town of Millinocket, 2011 ME 99, ¶41; citing Mercier v. Town of Fairfield, 628 A.2d 1053,1056 (Me. 1993). The burden of proof is on the plaintiff to prove the amount, if any, of front pay. Webber v. Int'l Paper Co., 307 F.Supp.2d 119, 129 (D.Me. 2004). As previously discussed, the Law Court and MHRA have indicated a willingness to follow federal law with employment discrimination cases. And under federal law, future damages are often speculative. Currier v. United Techs. Corp., 326 F.Supp. 145,158 (D. Me. 2004). A plaintiffs failure to mitigate damages is relevant to an entitlement to front pay. Id.; see also Walsh v. Town of Millinocket, 2011 ME 99, ¶ 42 (...the court's findings with regard to mitigation also apply to front pay).
For the reasons previously discussed, the court finds Crabtree failed to mitigate her damages. In addition, as previously found, Crabtree had modest prior work experience, and had not worked at all in the two and a half years prior to applying to CMMC. And since September, 2015, Crabtree has worked only 6 months, and not at all since 2021 when she worked for only a month. Nearly eight years have elapsed since Crabtree applied to CMMC. Awarding front pay would require broad speculation. Accordingly, with a failure to mitigate coupled with front pay being highly speculative on the facts of this case, the court declines to make an award of front pay.
4. Tax Offset.
The court recognizes that the award of back pay may be taxable, and further recognizes some jurisdictions have increased awards to offset tax liability. However, the trial record does not precisely include evidence by which such an amount can be determined without speculation, not knowing what deductions and tax rate would be applicable. Also, the back pay awarded is far less than Crabtree had argued for. It is the court's sense that the tax liability on a back pay award of $24,558.00 is modest if not negligible. Accordingly, the court declines to award additional damages for a tax offset.
5. Cease and Desist Order.
As Crabtree points out in her brief, an order to cease and desist from unlawful employment discrimination is an available remedy, 5 M.R.S,A. §4613(2)(B)(1). However, again as Crabtree concedes, nearly eight years have passed since she applied for CMMC's EWYL program, CMMC does not currently offer the EWYL program, and she has now pursued other options. See Plaintiff s Post-Trial Damages Brief at 2. The court is not persuaded by the trial record that there is danger of recurrent violation, or fear that CMMC may "possibly" discriminate in the future is speculative. See United States v. W.T.Grant Co., 345 U.S. 629, 633 (1953). And there is no indication Crabtree and CMMC will ever have an employment relationship in the future. See Thayer v. E. Maine Ctr., 740 F.Supp. 191, 201 (D.Me. 2010). The court declines to issue a cease and desist order.
In conclusion, the court awards Crabtree back pay in the amount of $24,558.00 plus interest as allowed by law from the date of filing of the complaint. The court declines to award any of the other remedies requested by Crabtree.
The entry is:
Upon the jury's finding Defendant Central Maine Medical Center liable for unlawful employment discrimination, Plaintiff Helen Crabtree is awarded damages of $1.00 in compensatory damages and $24,558.00 in backpay, for total damages of $24,559.00, plus prejudgment interest from the date of filing of the complaint, and postjudgment interest from the date of this judgment, as allowed by 14 M.R,S.A. §1602-B and §1602-C.
The clerk is directed to enter this order on the docket by reference pursuant to M.R.Civ.P. 79(a).