Investigators Report: E07-0195

[Complainant]

[Respondent]

I. COMPLAINANT’S CHARGE :

Complainan [Complainant], alleges that she was subjected to less favorable terms and conditions in employment and a hostile work environment because of her sex. She further alleges that she was terminated from employment in retaliation for complaining about the hostile working environment and sex discrimination.

II. RESPONDENT’S ANSWER :

Respondent denied that Complainant was subjected to less favorable terms and conditions based on her sex. Respondent states Complainant never approached her supervisor about her perception that he was creating a hostile work environment. Respondent states that Complainant’s layoff was the result of a business decision by the Senior Management Group to eliminate the position of Regional Business Development Officer.

III. JURISDICTIONAL DATA :

1) Date of alleged discrimination: January 5, 2007.

2) Date complaint filed with the Maine Human Rights Commission: March 26, 2007.

3) Respondent employs approximately 173 employees and is subject to the Maine Human Rights Act, Title VII of the U.S. Civil Rights Act of 1964, as well as state and federal employment regulations.

4) Complainant is represented by Gary Libby, Esq. Respondent is represented by Lawrence Winger, Esq.

5) Investigative methods used: A thorough review of the written materials provided by the parties and a fact-finding conference.

IV. DEVELOPMENT OF FACTS:

1) The parties and issues in this case are as follows:

a) [Complainant], female, was a Vice-President – Regional Business Development Officer for Respondent. She was notified on January 5, 2007, that her position was being eliminated.

b) The Respondent, [Respondent], operates eleven branches throughout Maine.

c) Supervisor was Complainant’s supervisor throughout her employment. Supervisor’s job title is Chief Operating Officer. President states that the decision to eliminate Complainant’s position was his. Chief Financial Officer (CFO) is the person that Complainant went to to discuss the hostile work environment she believed she was being subjected to. Ms. M is a co-Complainant who has filed her own Charge of Discrimination in this matter.

d) Complainant alleges that she was subjected to less favorable terms and conditions and a hostile work environment because of her sex and that she was terminated from employment after she complained of those conditions. Respondent alleges that Complainant’s layoff was the result of a business decision by the Senior Management Group to eliminate the position of Regional Business Development Officer.

2) The following facts are undisputed:

a) Complainant was hired on December 14, 1998 by [Respondent] as a Branch Manager. In November 2002 she was promoted to the position of Business Development Officer (BDO).

b) She was promoted to a newly created position of Regional Business Development Officer effective July 1, 2005. A summary of her job description states that she “oversees the daily sales initiatives of retail business development officers in assigned region while maintaining responsibility for the assigned branch.”

c) The branches for which Complainant had oversight were Bethel, Harrison, South Paris, Buckfield, Mechanic Falls, and Auburn. Her office was located in Auburn.

d) At the time of these events, there were no females in senior management positions at [Respondent].

3) Complainant provides the following regarding a leadership training that she attended in October 2006 with Ms. M and Ms. DC (Director of Communications and Public Relations):

a) Supervisor was on the question and answer panel at this training. The panel was asked to tell about their qualifications and how they obtained the positions they were in. Supervisor stated that he had gone to UMO and graduated with a bachelor’s degree. Complainant was aware that Supervisor does not have a college degree.

b) Supervisor’s comments and demeanor on the panel made Complainant and Ms. M realize that Supervisor was less than truthful and that his demeanor was not as professional as the executives from the other banks who were on the panel.

c) They expressed to DC their thoughts about the above and DC said she was going to speak to President about Supervisor’s untruthfulness, which Complainant believes she did. Complainant states that after that is when Supervisor’s hostility increased towards her and Ms. M. After that Supervisor started becoming more abrupt and his yelling increased. He never said he had been made aware of their comments, but she believes he was.

4) Complainant provided the following with regard to her allegations that Supervisor repeatedly verbally abused her and Ms. M, and that she was subjected to less favorable terms and conditions than male employees:

a) Supervisor was constantly demeaning and berating towards women. He would frequently yell at Complainant and Ms. M during meetings and in front of other employees. In meetings where it was just herself, Ms. M and Supervisor – Supervisor would regularly end up screaming at them. He was frustrated with budget numbers and he would yell at them. “It was about employees not performing up to speed. There were some people he just wanted gone because he didn’t think they were ever going to come around.” Complainant adds, “Maybe they would – maybe not – but we had to follow a process. We couldn’t just fire people.” She did not hear him yell at male employees.

b) During one meeting when Supervisor was yelling, she got teary-eyed and started to cry. Supervisor yelled at her, “Don’t you cry. Don’t you dare cry.” Supervisor bragged about making women cry and on one occasion he commented on how many female employees he had made cry that week. On one occasion, a female employee left his office and he said to Ms. M and Complainant, “that’s the third woman I’ve made cry this week.” He was smiling and quite proud of it.

c) Supervisor told Complainant that she could no longer take branch managers to lunch while doing their annual performance development plan. He said it was not appropriate and that he wanted them to cut down on expenses. However, a male employee in the Commercial Division took one of his commercial customers to lunch and they had eleven beers, which is a direct violation of the bank’s anti-drug/alcohol during work hours policy. Supervisor knew of this as he put his signature on the bill to be paid by the accounting department. He complained to everyone about the bill.

(Complainant did state that Supervisor was upset about the male employee taking the client out for numerous beers and he said that it shouldn’t have happened but he did approve the expense account. She further confirmed that she was allowed to take clients to lunch as long as she could justify the expense to Supervisor and the expense “better be bringing in new business or have the possibility of bringing in new business.” She does not know if male supervisory employees were allowed to take employees out to lunch and put it on the corporate credit card.)

d) She told Supervisor that she would like to sit in on Asset Liability Committee (ALCO) meetings. She felt this would be helpful for her to be a part of the budget process. He refused to allow her to attend and instead he dictated to her and Ms. M what the budget numbers would be

e) She was denied the opportunity of attending various conferences and corporate retreats which were attended by male employees who had the same level of responsibility as she did.

f) She requested to move her office to the Gateway, the bank’s main office where she would be able to interact with Ms. M as they had similar duties and objectives and worked together often. This would also place her in the same building as other corporate executives. That request was denied. She is aware that there were vacant offices on the fourth floor that she could have utilized.

g) In approximately the end of November or beginning of December 2006, Supervisor told Ms. M and Complainant that the budget numbers were not looking good. He said he didn’t know if he needed both of them in this position. This was the first she had heard that one of them may not be needed. She was in shock and did not question what he meant. He repeated that comment again at other meetings after that.

5) Respondent responds to the above as follows:

a) (Respondent’s answers) “[Respondent] would not tolerate any supervisor, co-worker, or customer abusing an employee. Nor would we tolerate a supervisor creating a hostile work environment for an employee.”

b) (Respondent’s answers) They have a complaint process whereby an employee can bring an issue to any member of senior management or to Human Resources or they can make a complaint on-line through an incident reporting vendor, Lighthouse Services. [Complainant]made no such complaint to anyone except for a joint meeting she and her peer (Ms. M) had with CFO.

c) (Respondent’s answers) No formal or informal complaint has ever been made to Human Resources during Supervisor’s tenure at [Respondent] by [Complainant]or Ms. M, or any other employee regarding Supervisor’s conduct or his working relationships with employees who report to him. Respondent provides letters of support from a number of women who have reported to Supervisor over the years.

d) (Supervisor) He denies that he ever yelled at [Complainant]or Ms. M. He admits that he does raise his voice when he gets excited, frustrated or passionate about a topic but he did not berate [Complainant]or Ms. M. Complainant and Ms. M never went to anyone with their concerns nor did they ever express to him that they felt they were working in a hostile work environment.

e) (Supervisor) He denies bragging about making any female employee cry, and he has no recollection of ever making any female employee cry.

f) (Supervisor) He confirms that he did have an issue with Complainant taking managers to lunch for their evaluations and using the corporate credit card. He encouraged branch managers and lenders to take clients out as that is one of the reasons they are given a corporate credit card. He did question when a regional or manager took another bank employee to lunch and put it on the bank credit card. This should only be done on a rare basis and he had asked the regionals to try to avoid this to control expenses.

g) [Complainant] and Ms. M were not denied or discouraged to attend the [Respondent]’s ALCO meetings although it is true that they never attended those meetings. The purpose of the ALCO meetings is to work with an outside consultant to discuss the Bank’s position with respect to assets and liabilities. This is a regulatory requirement. The participants in these meetings are generally senior management, the Marketing Director and the Corporate Treasury Manager. Senior Management makes the ultimate decisions at these meetings, so the Bank had no specific need for regional branch manager input on these matters. Supervisor has no recollection of [Complainant]asking to attend this meeting and does not recall any incident where he told her she could not go.

h) The Complainant was not denied opportunities to attend any conference or workshop that was pertinent to her position and added value to her professional development. Supervisor has no recollection of any disputes with [Complainant]on this subject.

i) (Supervisor) When the Corporate offices were moved to 500 Canal Street in Lewiston in 2005, the 4 th floor offices had been designated to various executive staff members. [Complainant]did ask him on a couple occasions about moving to the corporate office, however, [Complainant] role as a Regional Vice-President was to have branch oversight and not to be housed at the corporate office.

j) (Supervisor) He was receiving numerous calls from the local branches with questions regarding daily operations issues that the Complainants should have been handling. He did tell Complainant and Ms. M that if he had to handle all these calls, he didn’t know if he needed both of them. This would have been the extent to which he threatened their jobs.

6) Respondent provides the following regarding concerns with Complainant’s job performance:

a) (Respondent’s answers) [Complainant]assigned duties included the oversight of daily sales initiatives of their branches, including the development and implementation of a sales plan that would assist with meeting the Bank’s annual budget goals and objectives.

b) (Respondent’s answers) Over the next several months, sales of both loans and deposits from the assigned branches continued to fall below the budgetary expectations, the actual (consumer and residential) loan and deposit balances, and the deficiencies below budget for the months of September through December 2006. It was clear that in almost every case, balances of loans and deposits were not only below budget but fell further into deficiency month after month.

c) (Supervisor) The declining balances of loans and deposits were a regular topic of discussion at monthly meetings held by Supervisor with [Complainant] and Ms. M. Supervisor queried them regularly about their efforts to increase sales in their assigned branches and what they were doing in terms of mentoring, coaching, and developing branch staff to increase sales of loans and deposit products.

d) (Supervisor) Lacking satisfactory answers to his questions, beginning on December 1, 2006, Supervisor invited the branch managers and BDOs individually to attend a meeting with [Complainant] and himself to discuss branch performance. At the end of the meeting, Supervisor met privately with the BDO or manager and asked about the level of support they were receiving from [Complainant]. The responses ranged from little to none.

e) (Respondent’s answers) The declining loan and deposit balances were of grave concern to Senior Managers and were discussed regularly at their meetings. President was pushing Supervisor to hold [Complainant]and Ms. M accountable for the sales of their regions. By the end of December 2006, it was becoming clear to the Senior Managers that neither [Complainant]nor Ms. M had the requisite competencies (such as motivating others, coaching and developing sales skills in branch personnel, providing guidance support on sales calls) to lead their branches in developing sufficient sales of loan and deposit products to meet budgetary expectations.

7) The parties provide the following regarding performance:

a) (Complainant’s Annual Performance Summary for the period of August 1, 2005 to August 1, 2006) The following comments were checked off as applying to Complainant in this evaluation:

i. Employee consistently meets all Essential Job Responsibilities and Performance Standards of this position.

ii. Employee has successfully accomplished Goals and Objectives for this period.

iii. Employee has successfully accomplished all SMART Goals for this period.

b) (Salary Recommendation form) Complainant was granted a $7,000.00 pay increase from $50,000.00 annually to $57,000.00 annually. The form indicated that “Employee has successfully met Goals and Objectives beyond the Essential Job Duties and Performance Standards of this position (for example, incentive sales goals, efficiencies, special projects, etc.).”

c) (Supervisor) [Complainant]was given the pay increase in order to bring her up to the same level of pay as Ms. M. Ms. M had been hired at a higher rate based on her experience. The issues with Ms. Gagne’s job performance started coming up in the fall when he started meeting with branch managers who told him they were not getting the level of support they needed from Ms. Gagne.

d) (Complainant) The normal increase if someone is doing all that is expected of them is 3%. Anyone not performing completely up to standards receives either 2% or nothing at all depending on how many deficiencies are noted. She received a 14% increase. If she had not been performing as was expected of her, she never would have received this type of compensation regardless of how much her counterpart was paid.

e) (Complainant) Rsvps (Referrals and Sales equals various prizes) had increased by 400% in the first half of the fiscal year July 1- December 31, 2006. Her region produced the majority of the growth the bank had for the fiscal year 6/30/2005 to 7/01/2006.

f) (Supervisor) Rsvps did increase, but did not quadruple as Complainant states. Rsvps are not the only measure of success, closed sales are, and are but one component of measuring the effectiveness of a manager along with sales calls, business development calls, etc.

g) (Complainant) The commercial division did not do one-fifth of what she and Ms. M had done.

h) (Complainant) Supervisor did the same job duties as she did prior to her and Ms. M being promoted. He never made his numbers with the branches when the branches were reported to him. He was not let go.

i) (Complainant) Supervisor did not meet with all of her managers as he has reported. He did meet with some of them but when she asked for feedback on what they said, he would not tell her anything. She told him she needed to know what they said so that she would know what her managers needed from her. He told her he was not ready to discuss it

with her yet. When she spoke to the managers, they told her they gave Supervisor positive information about the level of support she provided to them.

j) (Complainant) She once told Supervisor that many branch managers had expressed their concern over the negative atmosphere on the fourth floor (where senior management’s office were). She told him these managers did not want to speak to the two senior managers they felt were the cause because they felt it would be career suicide. Supervisor replied in a sarcastic tone, “Yep”. Therefore, regarding the letters of support that Respondent has provided, many of these people have been employed at the bank for a long time. They certainly would not write anything negative about Supervisor. It would be career suicide. He is the COO, they certainly were not going to write something negative.

k) (Complainant) Supervisor, Ms. M and she would meet monthly to discuss all of the bank’s numbers. Supervisor started yelling at them a lot beginning in about October 2007 – before that his yelling was sporadic. Sometimes they would discuss specifics regarding bank numbers and other times they would discuss bank employees and managers. She was never told in any of those meetings that she wasn’t doing her job. She was only told that the numbers needed to improve.

l) The bank’s employee manual states, “Corrective action is generally a four-step process (although in certain circumstances this four-step process may be modified based on the situation): verbal warning, written warning, final written warning, termination. When asked why, if Complainant’s job performance was an issue, why wasn’t she subjected to the four-step disciplinary process, Supervisor stated that he was “getting ready to go into that process when he and (President) decided to go in a different direction and hire one person for the job.”

8) The parties provide the following with regard to Complainant’s and Ms. M’s meeting with CFO on December 13, 2006:

a) (Complainant) She and Ms. M met with CFO to discuss the hostile work environment they felt they were being subjected to by Supervisor. They went to CFO rather than the Human Resources person who was employed there at that time as the Human Resources person had broken confidentiality in the past. Human Resources reported to CFO so they decided to speak to CFO for advice.

b) (Complainant) She and Ms. M told CFO that Supervisor yelled at them, berated them and subjected them to a hostile work environment. Ms. M said there was a “good ole boys” club environment at the bank. They told CFO that they felt they were being treated differently than male employees.

c) (Complainant) She does not recall if the words “sex discrimination” were explicitly used. However, they did discuss that they felt they were being treated differently than the male lenders in the Commercial Division. She is sure that CFO surmised that sex discrimination was taking place because he brought up sex discrimination at another bank.

d) (Complainant) After they mentioned that they felt they were being treated differently than male employees and there was an environment of a “good ole boys club,” CFO brought up that he was aware of the fact that there were no women in senior management positions at [Respondent]. He said that [another bank] had gone through the experience of a sex discrimination complaint and had to look through their employee base to see if there were competent females to promote into upper management so they would have more diverse upper management.

e) (Complainant) CFO asked what they wanted him to do. He suggested that under the banks’ Shared Values Plan, they should meet with Supervisor on their own first. CFO stated that he or President could facilitate a meeting but he thought it was best if the three of them met alone first. Complainant states they knew they had to meet with Supervisor but they were just looking for advice before doing so.

f) (Complainant) President stuck his head in during the meeting to say goodbye to CFO so President was aware that they had met with CFO although at that moment, President did not know why.

g) (CFO) He confirms that Complainant and Ms. M came to meet with him on December 13, 2007. They both appeared upset and talked about their inability to get Supervisor to listen to them or listen to their attempts to inform him about their efforts to better the branches. Neither [Complainant]nor Ms. M mentioned sex discrimination nor did they mention that males in commercial loans were treated more favorably. He does not remember [Complainant]or Ms. M using the words “hostile work environment”. He just knew the situation was “unpleasant.” He confirms that he advised them to meet with Supervisor on their own and that if that was unsuccessful that either he or President could facilitate a meeting. Complainant and Ms. M agreed to meet with Supervisor on their own.

h) (CFO) He (not [Complainant]or Ms. K) mentioned sex discrimination at another bank during the discussion. “I believe the context was a blanket statement that senior management was focused on promoting females to senior positions. It came up because he was aware that [the other bank] had been sued for not promoting females. I did not intend to represent to anyone that their interactions with [Supervisor] constituted sex discrimination.” He further adds that he was trying to impress upon [Complainant]and Ms. M that although they had not mentioned women in senior management, they were having a dispute with a senior manager, and he and the Bank had sensitivity to promoting qualified women into senior positions. He used the other bank as an example as a talking point.

i) (President) He agrees that he made a brief appearance at the meeting. “Subsequent to the meeting, [CFO] explained that he had suggested to both [Complainant]and Ms. M that they speak with [Supervisor]. I agreed that this was good advice.”

9) The following information is provided by the parties relative to the meeting held between the parties and Supervisor on January 2, 2007:

a) (Complainant) Both she and Ms. M attempted to set up a meeting with Supervisor to discuss their concerns but he said he could not meet with them until after the first of the year. Complainant and Ms. M both state that they did have vacations during that time period.

b) (Supervisor) All meetings with [Complainant]and Ms. M were initiated by him for the purpose of discussing branch performance issues and progress. They did not try to set up a meeting and did not indicate they had any concerns with working with him or for him that they needed to address. .

c) (Complainant) When she and Ms. M arrived at the January 2, 2007 meeting, Ms. M started off by telling Supervisor that she had made a list of things to discuss. Ms. M said she thought they had communication issues and needed to have a Shared Values meeting. Ms. M began to tell Supervisor that she didn’t think he was treating Complainant and Ms. M respectfully. Supervisor “blew” – he said that he had problems with each of them and that he did not know which one of them he was going to keep. He said he was going to meet with them individually to see where they were going to go from there. The meeting ended.

d) (Supervisor) He does not specifically remember what was discussed at the January 2, 2007 meeting but it would have been about the branches. He did not get angry about Complainants bringing up issues with him because they never brought up any issues. He was not aware that Ms. M had a list of items she wished to discuss about a hostile work environment nor did he know [Complainant]and Ms. M had spoken to CFO.

e) (Complainant) The January 2 nd meeting was not initiated by Supervisor. It was not a regular business meeting, which means it would have been to discuss the budget. The December numbers would not have been ready on January 2 nd, especially since the first was a holiday. They received the budget numbers anywhere from the 5 th to the 7 th of the month but never by the 2 nd. This further reinforces her claim that the meeting was initiated by herself and Ms. M for the purpose of discussing their concerns.

10) The following is provided by the parties relative to a follow-up meeting with CFO regarding the above meeting:

a) (Complainant) After meeting with Supervisor on January 2, 2007, she and Ms. M immediately went to see CFO and told him what had happened. CFO said that he was very disappointed in the way Supervisor handled the meeting. At both meetings with CFO she and Ms. M stated that Supervisor said he did not know which of them he was going to keep. CFO asked them to give him a couple of weeks to deal with this. He said that they should not have to fear for their jobs.

b) (CFO) He did tell [Complainant]and Ms. M that he was disappointed with Supervisor but he also told [Complainant]and Ms. M that he was disappointed in them because they did not discuss their concerns about working with Supervisor. [Complainant]and Ms. M did tell him that Supervisor cut them off and that they concluded that Supervisor would not be willing to listen to their concerns so they did not pursue them. He felt that both parties did not follow the Share Values process.

c) (CFO) After Complainants left his office, he approached President to discuss what appeared to him to be a breakdown in the Shared Values process and asked President for his advice about his next steps. President then informed him that [Complainant]and Ms. M were under-performing and Supervisor was trying to counsel them on the changes to improve their job performance. CFO states he did not mention to Supervisor that he had met with [Complainant]and Ms. M until after they had been terminated.

d) (Respondent’s answers) In Exhibit 17 of Respondent’s answers, it is written that [Complainant]and Ms. M “declined his offer” for him to facilitate the meeting with Supervisor and further states “When [CFO] asked them if they had met with [Supervisor], they said they had so [CFO] determined that the matter was closed.”

e) (President – information provided at fact finding conference) After the January 2, 2007 meeting, CFO informed him that the meeting between [Complainant]and Ms. M did not go well. President told CFO that the discussion was moot because the decision had been made to eliminate their positions. CFO did not say that Complainants had expressed that they felt the treatment was due to their sex.

11) Respondent provides the following regarding the decision to eliminate Complainant’s position:

a) (President) He had a major concern with the structure they had set up with the two Regional Business Development Officer positions. He never thought this was the right direction for the bank. He wanted to go back to having one person supervise the retails like they had done for years. Two people were not efficient – things were not going the way he wanted. He made the decision based on strategic goals – it had nothing to do with Ms. Gagne’s or Ms. M’s performance. He felt that it was an experiment that failed.

b) (President) Sometime in early fall 2006 he contacted another bank and spoke with a woman he knew there. He asked if she had any recommendations for someone with experience who could fulfill a new position he had in mind to supervise the bank’s branches. She recommended Mr. A. He spoke to Supervisor about Mr. A. Supervisor indicated that Mr. A had already applied at the bank in September (unbeknownst to President) and that Supervisor already had his resume and had already interviewed him. He told Supervisor to contact Mr. A again to see if he would be interested in the position. President’s recollection of this is that it was before December 2006.

c) (Supervisor) He interviewed Mr. A in the fall of 2006. He told Mr. A that there were no openings at that time but there was potential down the road. He believes this initial interview was in October 2006.

d) Respondent provided a copy of a journal page submitted to them by Mr. A. It is simply a copy of a binder page with no pre-printed date on it as a calendar book would show. There is a handwritten notation stating, “November 2 nd / (Supervisor’s Name / 10:00 / Northeast / Canal Street/ reception.” Respondent notes that Mr. A confirmed that this meeting was held in 2006 and that at the meeting Supervisor and President alluded to changes that were being considered in the retail division at the bank, although he stated that they did not specify what the changes were. Mr. A also told the Respondent’s Human Resource person (for the purpose of this investigation) that he had a phone conversation with Supervisor sometime in October discussing his qualifications and opportunities with [Respondent]. He also stated that he had lunch with one of the male lenders from the Commercial Division in the fall inquiring about [Respondent]’s commercial business and any potential employment opportunities. He could not recall specific dates.

e) (Supervisor) In late December 2006 President and he agreed that they needed to go in a different direction with regard to supervision of the retail world. They felt that neither Complainant nor Ms. M had demonstrated that they had the requisite skill sets to perform the job of mentoring and developing the sales staff in the branches to meet the budgetary goals for the Bank. They decided that they needed to re-tool the job and job description and to look for someone with the requisite skills to do the job. They brought this case to the Senior Management Group on January 3, 2007. The Group concurred and the decision was made to eliminate the position of Regional Business Development Officer.

f) (Respondent’s answer) The decision to eliminate the position of Regional BDO was made at a meeting of the Senior Management Group on January 3, 2007. Present at that meeting was President, Supervisor, CFO and another senior vice-president. This decision was based solely on the lack of adequate sales and business development performance by the two women in that position. The Senior Management Group felt strongly that it needed someone with more experience and a stronger skill in the development retail branch sales so a decision was made to eliminate the positions of the two Regional Business Development Officers.

g) (Minutes) Minutes of the January 3, 2007 Senior Management meeting contain no reference to the elimination of Complainant’s position.

h) (President) He is not surprised that there was no reference to the elimination of the position as the job elimination had been discussed for some time between himself and Supervisor and that his mind was made up as he had made it clear that he wanted one retail branch manager with one voice. He prepares the minutes for each Senior Management meeting and he suspects that, if they discussed the matter, it was along the lines of his informing the rest of senior management that he and Supervisor had made the decision and, unless there were major issues, he would move forward as planned.

i) (President) As CEO, he had made up his mind that change was necessary. In this case he was “pretty outspoken.” The other senior managers could certainly give their input but he can override it.

12) (Complainant) Supervisor sent her an e-mail stating he wanted to meet with her on January 4, 2007 but later he sent another e-mail stating he had to move the meeting to January 5, 2007 so President could also attend. She thought this meeting was to discuss the concerns that she and Ms. M had attempted to mention on January 2 nd and that it was also her quarterly check-in. She was informed at this meeting that her position was being eliminated and that she was being let go. She was told in the exit interview that she was not being terminated for performance as this was strictly a business decision.

13) (Notes provided by former Human Resources Director who was present at the January 5, 2007 meeting) President, Supervisor and she met with [Complainant]and President explained that her job was being eliminated due to the need to gear up the Retail Division, increasing core deposits and expanding sales to exiting customers. He told [Complainant]that neither she nor Ms. M had the requisite skills to handle the new position, however, she was a valued employee and was welcome to apply for openings that might come up.

14) (Complainant) She believes the decision to eliminate her position was retaliation for having complained about sex discrimination in the work place and also retaliation for having expressed concerns after the October 2006 conference about Supervisor’s management skills and credibility.

15) In Respondent’s answers, Complainant’s claim of retaliation is addressed as follows: “At the January 3 meeting of Senior Managers CFO did not make mention of the meeting he had earlier with [Complainant]and Ms. M as he wanted to respect their request for confidentiality. This fact undermines Ms. Gagne’s allegation that she was terminated in retaliation for complaining about those conditions because at this point, the only one who knew about the complaint was [CFO]. The Senior Management group made the decision to eliminate the positions of Regional Business Development Offices with no knowledge of their meeting with [CFO].”

16) On January 11, 2007 Supervisor announced via e-mail to all staff that Mr. A had been hired as the Director of Retail Sales for [Respondent] and that he would be responsible for the administration of the bank’s eleven retail branches as well as Customer Care. The e-mail indicated that he would begin the job on January 16, 2007. The e-mail further indicated that two current female employees would be taking a more active role in branch support and administration and would be reporting to Mr. A.

17) The following addresses Complainant’s claim that she has been denied employment since her termination for jobs that she was qualified to perform:

a) (Complainant) When she was notified that her position was being eliminated, she was encouraged to apply for any position that might come up in the future. Since she felt that President, Supervisor and the Human Resources manager were all aware of her skill set, she requested by e-mail that they contact her for any position they felt she was suited for. They never responded to her e-mail.

b) (Complainant) A branch manager position became available in Mechanic Falls. The person moved into that position was someone that Supervisor wanted fired before Complainant was let go. Complainant states that if Supervisor felt that employee was so incompetent, she should have been offered the job, given the fact that President had told her at her exit interview that her performance was not an issue.

c) (Complainant) At fact finding, Complainant stated that she saw the Mechanic Falls job advertised on-line. She did not call to express an interest in it nor did she apply for the position because she wanted to see if bank officials would contact her.

d) (President) He does not run the day to day operations. When he said he would help her if he could, he meant that. He never heard from [Complainant]from the day of the exit interview. If she was interested in a position, she could have called him and he would have seen what he could do but she never called. As CEO he does not keep track of the day-to-day operations and the various job openings.

e) (Complainant) In mid-January 2007 she was contacted by Ms. G, Group Benefits Division Leader. Ms. G was based at the Auburn location where [Complainant]had worked. She worked for the insurance division and was not considered an employee of that branch. Ms. G contacted her in mid-January 2007 about an available sales position. Ms. G felt that [Complainant]would be a good fit for the position. On January 30, 2007 she e-mailed Ms. G to get an update on what was happening with that position. Ms. G and she then spoke by phone at which time Complainant was told that the bank was restructuring their assessment of this job and was not sure exactly how it was going to work (i.e. commission or salary). Complainant states she never heard anymore about the position after that. Complainant believes that Ms. G was told not to hire her in retaliation for her complaint of sex discrimination and hostile work environment.

f) (Ms. G through Attorney Winger) Complainant contacted her about any available positions they might have. Ms. G asked if [Complainant]would be interested in a position if there was one available to which [Complainant]said yes. [Complainant]informed her they may need someone to do marketing but she would need to check with her supervisor first.

g) (Ms. G) The Insurance Division was a brand new division at that time and was just starting up. They (bank officials) initially considered hiring someone else to do marketing instead of having Ms. G do marketing, sales and service. However, when Ms. G went to her supervisor, Mr. CS, to discuss the plans for the position, he stated that they were going to try just having Ms. G do all three functions at first and see how it went. Ms. G stated that to this day she continues to do all three functions. There never was an available position and they have never hired anyone for a marketing position. She did tell [Complainant]that there was no position – that they were just talking about restructuring it but that never happened.

18) Additional evidence revealed the following:

a) Complainant alleges that she was subjected to less favorable terms and conditions in the performance of her job duties in the retail division than similarly situated males in the commercial division. She states that she was held to different standards of performance than male employees.

b) President and Supervisor contend that the Retail Division and the Commercial Division cannot be compared as they are two entirely separate functions. He states, “It’s an unfair comparison – commercial lenders have a higher level of experience and understanding of credit analysis. I would never compare the two.” He further states that “Commercial lenders are on their own and are charged to bring in volume commercial business. Retail and commercial are two totally different products.”

V. ANALYSIS:

1) The Maine Human Rights Act requires the Commission to “determine whether there are reasonable grounds to believe that unlawful discrimination has occurred.” 5 M.R.S.A. §4612(1)(B). The Commission interprets this standard to mean that there is at least an even chance of Complainant prevailing in a civil action.

2) Here, Complainant, Roxanne Gagne, alleges that Respondent, [Respondent], subjected her to less favorable terms and conditions of employment and a hostile work environment because of sex and then terminated her employment in retaliation for complaining of the hostile work environment and sex discrimination.

3) Respondent, [Respondent], denied the allegation of discrimination and retaliation and states that Complainant’s position was eliminated as the result of a business decision by the Senior Management Group.

Terms and Conditions/Hostile Work Environment

4) The Maine Human Rights Act provides, in part, as follows:

It is unlawful employment discrimination, in violation of this Act . . . for any employer to . . . because of . . . sex . . . discriminate with respect to the terms, conditions or privileges of employment or any other matter directly or indirectly related to employment. . . .” 5 M.R.S.A. § 4572(1)(A).

5) “Hostile environment claims involve repeated or intense harassment sufficiently severe or pervasive to create an abusive working environment.” Doyle v. Dep't of Human Servs., 2003 ME 61, ¶ 23, 824 A.2d 48, 57. In determining whether an actionable hostile work environment claim exists, it is necessary to view “all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. (citations omitted). It is not necessary that the inappropriate conduct occur more than once so long as it is severe enough to cause the workplace to become hostile or abusive. Id; Nadeau v. Rainbow Rugs, 675 A.2d 973, 976 ( Me. 1996). “The standard requires an objectively hostile or abusive environment--one that a reasonable person would find hostile or abusive--as well as the victim's subjective perception that the environment is abusive.” Nadeau, 675 A.2d at 976.

6) The MHRC Regulations provide the following standard for determining employer liability for sexual harassment committed by a supervisor:

When the supervisor’s harassment culminates in a tangible employment action, such as, but not limited to, discharge, demotion, or undesirable reassignment, liability attaches to the employer regardless of whether the employer knew or should have known of the harassment, and regardless of whether the specific acts complained of were authorized or even forbidden by the employer. When the supervisor’s harassment does not culminate in a tangible employment action, the employer may raise an affirmative defense to liability or damages by proving by a preponderance of the evidence:

a) that the employer exercised reasonable care to prevent and correct

promptly any sexually harassing behavior, and

b) that the employee unreasonably failed to take advantage of any

preventive or corrective opportunities provided by the employer or

to avoid harm otherwise.

Me. Hum. Rights Comm’n Reg. § 3.06(I) (2) ( July 17, 1999).

7) In this case, the evidence shows that Complainant was subjected to less favorable terms and conditions in the form of a hostile work environment because of her sex, with reasoning as follows:

a) Complainant was credible in her testimony that she was yelled at by Supervisor and that the yelling was a frequent occurrence. While Supervisor states that he did not berate [Complainant]personally in any way, he does admit that he “raises his voice when he gets excited.”

b) Complainant’s allegation that Supervisor bragged about making women cry was confirmed by Ms. M who attended the meeting in which Supervisor commented on how many female employees he had made cry that week.

c)Complainant was denied the opportunity to attend ALCO meetings which would have benefited her job knowledge. Supervisor’s assertion that it was intended for Senior Management officials may be accurate, however, since Complainant only expressed the interest to further her job knowledge, there was no reason to exclude her if she simply wanted to observe. Supervisor’s reaction to the knowledge that Ms. M would be attending the meeting accompanied by his comments that DC (a female) should not be on the Committee either further supports Complainant’s allegations that Supervisor did not want to give her any additional opportunities based on her sex.

d) Supervisor confirms that Complainant did request to move to the new corporate office in Lewiston and was denied. His argument that her role as a Regional Vice-President was to have branch oversight and not be housed at the corporate office does not make sense since Ms. M had the same job duties and was housed at the corporate office. Furthermore, it was determined that there were vacant offices on the fourth floor throughout Ms. Gagne’s employment that could have been utilized by Complainant.

e) Regarding her allegation that Supervisor threatened her job, occasional threats were indeed made. Supervisor admits that he told Complainant and Ms. M that if he had to handle calls from the branch offices that he didn’t know if he needed both of them. This is clearly a threat to her job.

8) With respect to Respondent’s liability, Respondent asserts that no formal or informal complaint was ever made to Human Resources during Supervisor’s tenure at [Respondent] by Complainant. However, the bank’s own policy states that an employee can bring an issue to any member of senior management. Since Complainant made a complaint to CFO, who the Human Resources Manager reported to, Complainant clearly made a complaint as outlined by the bank’s employee manual. After the complaint, no action was taken to address the alleged harassment. When CFO told President about the meeting, President stated that the issue was moot because the decision had been made to eliminate Complainant and Ms. M’s positions. It is not found that Respondent exercised reasonable care to prevent and correct promptly the harassing behavior.

9) It should be noted that even though the Complainant was treated less favorably on the basis of sex with regard to incidents listed above, it is not found that she was subjected to sex discrimination relating to the use of the corporate credit card. Even though a male co-worker bought a client eleven beers, Complainant herself confirmed that Supervisor was clearly upset at this expenditure.

10) Even though Complainant strongly compared herself and Ms. M to the two male lenders in the Commercial division, the two females are not “similarly situated” to the males as their job duties are not the same. Complainant and Ms. M were the only two persons in their position, therefore, there is no comparable evidence to show sex discrimination in regard to their job expectations.

Termination

11) The MHRA makes it unlawful for “an employer . . . to discriminate in any manner against individuals because they have opposed a practice that would be a violation of [the MHRA] or because they have made a charge, testified or assisted in any investigation, proceeding or hearing under [the MHRA].” 5 M.R.S.A. § 4572(1)(E).

12) In order to establish a prima-facie case of retaliation, Complainant must show that she engaged in statutorily protected activity, she was the subject of a materially adverse action, and there was a causal link between the protected activity and the adverse action. See Doyle v. Dep't of Human Servs., 2003 ME 61, ¶ 20,824 A.2d 48, 56; Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct. 2405 (2006). The term “materially adverse action” covers only those employer actions “that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington Northern, 126 S. Ct. 2405. One method of proving the causal link is if the adverse action happens in “close proximity” to the protected conduct. See Id.

The prima-facie case creates a rebuttable presumption that Respondent retaliated against Complainant for engaging in statutorily protected activity. See Wytrwal v. Saco Sch. Bd., 70 F.3d 165, 172 (1 st Cir. 1995). Respondent must then produce some probative evidence to demonstrate a nondiscriminatory reason for the adverse action. See Doyle, 2003 ME 61, ¶ 20, 824 A.2d at 56. If Respondent makes that showing, Complainant must carry her overall burden of proving that there was, in fact, a causal connection between the protected activity and the adverse action. See id.

13) Here, Complainant has established a prima-facie case by showing that (1) she reported to CFO that she felt there was a hostile work environment based on her sex, (2) her position was eliminated, and (3) the timing of the events provides a strong causal link between her complaint and the job elimination.

14) Respondent has articulated a legitimate, nondiscriminatory reason for Complainant’s separation from employment, namely that it was the result of a business decision and was based solely on the lack of adequate sales and business development performance by the two women in the position.

15) At the final stage of analysis, Complainant has demonstrated that there was, in fact, a causal connection between her sex discrimination complaint and her termination, with reasoning being as follow:

a) While Supervisor may have been frustrated with Complainant’s numbers at the branches, it is not convincing that he was planning to eliminate her position when he met with Complainant and Ms. M on January 2, 2007. He stated that he did not remember what was discussed at that meeting but it would have been about the branches. It does not make sense that he would have had a meeting with them to discuss branch performance if he planned to meet with Senior Management the next day to confirm that their jobs were being eliminated.

b) Complainant had not been given any type of progressive discipline to indicate that her job was at risk. Although Supervisor states he was about to start that process until he and President decided to go in a different direction, that is simply not convincing.

c) Complainant was given a $7,000.00 raise in August 2006 (14%). Her evaluation was positive indicating that she “consistently meets all essential job responsibilities and performance standards of the position.” Respondent asserts she was given the raise to bring her up to the same amount that Ms. M was earning. It seems unlikely that if Respondent was truly unhappy with Complainant’s job performance that they would have given her both a satisfactory job performance evaluation and a fourteen percent raise, regardless of what Ms. M’s salary was.

d) Supervisor states that at the January 2, 2007 Complainant and Ms. M did not raise any issues with him regarding a hostile work environment. This, however, conflicts with CFOs testimony that Complainant and Ms. M came to see him immediately after the meeting and that they were upset because Supervisor refused to listen to their concerns.

e) CFO’s testimony was particularly inconsistent, as follows:

i. He stated that Complainant and Ms. M never mentioned sex discrimination, however, he admittedly brought up the subject that another bank had been sued for sex discrimination because they did not have enough women in senior management positions. There would have been no reason to bring up sex discrimination unless Complainant and Ms. M had brought up sex discrimination initially. CFO’s assertion that he made the comment was in the context as a “blanket statement that senior management was focused on promoting females to senior positions” is not convincing and in fact, further supports that sex discrimination must have been brought up by Complainant and Ms. M. It also shows that a sex discrimination lawsuit was of concern to CFO.

ii. At one point in Respondent’s written answers, CFO states that Complainants came to him on January 2, 2007 after meeting with Supervisor and that they were clearly upset that Supervisor had cut them off and would not listen to their concerns. At another point in the submissions, he wrote that when he asked Complainant and Ms. M if they had met with Supervisor, they said they had so he determined the matter was closed. These two statements are clearly contradictory.

iii. CFO also provided a statement which indicated that the elimination of the positions could not have been retaliatory because the only person at the Senior Management meeting who knew that he had met with Complainant and Ms. M was him. He stated that to preserve confidentiality, he had not disclosed this to anyone else. This is contradicted in that: (1) President states that subsequent to President having walked into the December 13 th meeting with CFO, Complainant and Ms. M, that CFO told him that he had suggested that they meet with Supervisor and that President agreed that that was good advice; (2) CFO states that after meeting with Complainant and Ms. M on January 2, 2007 he met with President to discuss what appeared to be a breakdown in the Shared Values process and asked for advice on the next steps. Clearly, CFO was not the only one at the Senior Management meeting who knew of his meeting with [Complainant]and Ms. M since President was also in the January 3, 2007 meeting.

iv. Further contradiction in CFO’s testimony is that in Respondent’s written answers to the charge of discrimination, it states that when he approached President on January 2, 2007 about his meeting with [Complainant]and Ms. M, that President informed him that [Complainant]and Ms. M were under-performing and Supervisor was trying to counsel them on the changes to improve their job performance. However, at fact finding he stated that during that conversation he learned “in substance” that their jobs were going to be done away with. Again, this is inconsistent. There is clearly a difference in being told that the employees were being counseled to improve their job performance and learning “in substance” that their jobs were being eliminated. Also, it is not credible that Supervisor would be attempting to counsel them on changes to improve their job performance on January 2, 2007 if their position was going to be eliminated the next day.

v. In summary, CFO’s shifting and conflicting explanations makes his testimony unreliable.

f) President’s testimony was also inconsistent. First he states that the elimination of Complainant’s position had nothing to do with her job performance. He states that it was simply an “experiment that failed.” However, further in Respondent’s answers, it is stated that “this decision was based solely on the lack of adequate sales and business development performance by the two women in that position.”

g) It is further troublesome that much of Respondent’s information regarding the decision to eliminate the positions of Vice-President Regional Development Officer focuses on the fact that the final decision to eliminate the positions was made on January 3, 2007 at the Senior Management meeting. However, in the minutes of the January 3, 2007 meeting there is absolutely no reference to the fact that these two positions had been eliminated. While President states that he was not surprised that there was no reference to the elimination of the positions as the job elimination had been discussed for some time between himself and Supervisor and that his mind was made up, he further stated that if they discussed the matter , (emphasis added) it was along the lines of his informing the rest of senior management that he and Supervisor had made the decision and, unless there were major issues, he would move forward as planned. Again, this is contradictory. Either the decision to eliminate the positions was discussed at the meeting or it wasn’t.

h) Also, in reference to the meeting of January 3, 2007, it should be noted that the minutes were a page and a half long with various subjects discussed such as (1) Supervisor mentioned that the use of a machine to download or send data was causing problems at one branch and they had to close a window; (2) a discussion about the banks’ overdraft policy for employees; (3) the current status of the South Paris renovations; (4) the issue of a review of their present fee schedule was discussed; (5) reference to the middle management meeting; and lastly, (6) there was discussion about collections of an account that had gone out of business years ago. Given that all of these discussions were listed in the Minutes, it is not credible to this investigator that an issue as important as eliminating the two positions whose authority was to oversee the eleven branches of the bank did not even deserve a one-line mention in the Minutes. This leads to the conclusion that the decision to eliminate Complainant and Ms. M’s position may not have been discussed at all at the January 3, 2007 meeting or that what was said about the topic was too sensitive to commit to paper - further leading to questions of Respondent’s credibility.

i) Even though President states he was not told that Complainant and Ms. M had complained of sex discrimination, given the inconsistencies in Respondent witness testimony, it is not hard to conclude that CFO informed President about the actual conversation and that revelation led to the decision to eliminate Complainant’s position.

16) Respondent provided details regarding its meetings with Mr. A prior to eliminating Complainant’s position. This was to support President’s contention that he was intending to take the bank in a different direction even prior to Complainant’s meeting with CFO. However, the information provided does not negate all of the other inconsistencies that are noted above and does not convince the investigator that the decision to hire Mr. A was imminent.

17) In summary, Respondent’s inconsistent and contradictory testimony, along with the timing of the decision to eliminate the positions supports Complainant’s allegations that she was subjected to less favorable terms and conditions because of her sex and that her position was eliminated in retaliation for her having complained of sex discrimination and a hostile work environment.

18) Complainant also alleged that, in addition to believing she was terminated in retaliation for complaining of sex discrimination and a hostile work environment, she was terminated in retaliation for having expressed concerns after the October 2006 conference about Supervisor’s management skills and credibility. There is no evidence to support that allegation. Even if there were, that would be a reason unrelated to her sex and not a violation of the Maine Human Rights Act.

19) Regarding Complainant’s allegations that she has been denied employment at the bank since her separation from employment based on retaliation, the following is found:

a) Regarding the branch manager’s position at Mechanic Falls, it cannot be found that Complainant was denied this job based on retaliation. President was credible when he stated that he, as CEO, does not run the day to day operations of the bank nor does he keep track of the various job openings throughout the branches. If Complainant saw the job posted on-line, she certainly could have taken the initiative to apply for the position rather than wait to see if she was contacted by Respondent. The fact that she chose not to do so does not prove retaliation on the Respondent’s part.

b) Regarding the position that Ms. G and Complainant spoke about, Ms. G provides credible testimony that there was never an actual position and that, to this day, she continues to perform the marketing functions of the position. She admits that she spoke to Complainant about a possible position but that position never materialized. Therefore, no retaliation is found in relation to this portion of Complainant’s complaint.

VI. RECOMMENDATION:

For the reasons stated above, it is recommended that the Maine Human Rights

Commissions issue the following findings:

1) There are Reasonable Grounds to believe that the Respondent, [Respondent], subjected Complainant [Complainant] to less favorable terms and conditions (hostile work environment) because of her sex; and

2) There are Reasonable Grounds to believe that the Respondent, [Respondent], terminated Complainant [Complainant] in retaliation for complaining of unlawful sex discrimination in employment; and

3) Conciliation should be attempted in accordance with 5 M.R.S.A. § 4612(3).

___________________________ ___________________________

Patricia E. Ryan Sheila P. Pierce

Executive Director Field Investigator

COMMISSION INFORMATION

Investigators Report: E07-0195