sexual orientation in violation of the main human rights act this discrimination case is somewhat unusual because the district court specifically found that the employer bank of america had in fact discriminated against shelly flood and did set her up for a wrongful destroyed or at least that jury could so far which were summary judgment purposes amounts to the same thing but nevertheless granted summary judgment against the employee on the sole premise that the bank's actions against her were not sufficiently agreed to  actionable and there are i submit at least five ways that the bank committed actionable discrimination against the flood i'd like to discuss three of them now first and foremost the bank fired her it's clear from the record that they fired her the bank has consistently stayed on that point it appears that the district court took the view position that the terminations on the theory of abandonment was actual destruction and that is what you were contesting as are correct that's correct your honor and that's based on the bank's own statements that they terminat she did explaining the reasons why she was not at the bank for six days and she did that on september thirtieth before she was terminated so for summary judgment purposes it has to be a pretextual and i'm struggling with trying to find evidence from which a reasonable jury could infer pretext but i think it's very clear that ne jury could find a pretext for all the same reasons that it seems to me that's a classic case of struct of discharge i'm your theory but you keep this claiming that so we can't build it well i think that under constructive destroyers theory we could still prevail but you don't have to without talking to her without going through the steps that according to the bank's own affidavit it was supposed to go through and posted on the first that she was fired s main human rights act but are not mentioned in title seven specifically but i think it's understood that in title seven they would be covered more in general and anything that this sort of claim i think that the aggregate claim can be considered hostile environment but it could also you could separate it out and say that if it's not was prohibited from socializing with her partner and i think you also asserted that others other types of couples were not subject to that same prohibition did you provide any evidence for to support the assertion that others were let other couples were allowed to socialize because i did see that that was in her affidavit that was based on her observations and the district court found that met the threshold  circumstantial evidence which is generally from the fact finder to decide the squire just said pretty much the same thing and we're just asking the court to follow its own precedents and then president  well as judge singles orders affirming the report recommendation and denying funds motion for reconsideration rightly granted defendants motion for summary judgment and found there to be no genuine issue of material fact and your honors unless you prefer jumping to any reported to work on september twenty second as normal she prepared her things and completed it completed certain projects so she would not burden her coworkers she did not report to work the next day in fact she else have you your honor she didn't respond to the letter instead she wrote a letter to diana castle her unit manager in which she complained of discrimination she didn't did not state that the discrimination was the reason why she left her employment nor did she express any interest in returning to her job or another job at a bank there after your honor the bank's h r department did reach out to her on numerous occasions of them is good claims that she returned some of those calls the fact is that as a i believe october fifteenth the h r department continued to contact her in this load it made it in her deposition that she did not return their calls after that date there after in a letter dated november fourth of two thousand and eleven i believe  bank terminated her claim an effective october first i think that's the key distinguishing factor between what mr tejpal was saying the letter terminated her effective october thirtieth september thirtieth because that was the deadline she had  to response to mr twenty years later well she was already terminated october first what was the bank continuing to trot trying to engage her in the temple understand what her concerns and problems were again you're right she was not terminated until november it was it was retroactive to october first by virtue of that being that deadline that was the decision to terminate her i don't know if the record establishes when the decision was is trying to frame and he's not arguing constructive bestride she's saying in effect that despite the fact that she had these on excused absences and despite the fact that she didn't respond to these attempts to reach out to her that she would not have been discharged but for the discriminatory animists which the was related more specifically to the warning and the other terms and conditions of which misled complaint there really was no discussion speaking to you pretext for job abandonment because the court affirmatively found that to the terminations specifically there is no evidence that ms flight was treated differently than any other employee in terms of the reasons for her terminations moreover in terms of animists the court focused on diana castle however the record on the terminations very clear that ms cassel did not make the term a nation decision nor did she make a recommendation the record does not identify specifically who made that decision but it's clear that it was the h r representatives who handled the matter leading up to her terminations her job benjamin who were in charge of that issue your honour's if i may move on to the verbal warning and specifically to that king case this flood has applied a very broad interpretation to say the least of the king case the king case was a constructed discharge case and that is the proposition for which magistrate judge crabb chuck cited that case in that case there was an employee of a bank who had a breathing related disability she found that she could not working environment in which the her coworkers and the employees were smoking on one occasion she left the room apparently went to her supervisor and complained about this her supervisor in return told her in essence get back to work or you're fired and under those specific facts the court found that there was no evidence of constructive discharge because there was job accommodation available accommodation of her disability the court further went on in a single paragraph at the end of the case to say that while the facts did not lead to a constructive discharge they were sufficiently abusive that they were actionable as discrimination i think that's the key there your honour's the fact is that the employee there was subject to abuse in the court referenced the use of derogatory comments made in the context of issuing what it determined to be an abusive reprimand there's no discussion there's no denying that it's well established under both state and federal law that even a single incident of abusive conduct can lead to actionable discrimination through a hostile work environment claim although the court in king did not label it as a hostile work environment i'm that is in essence what it was the court focused there on the fact that there was abuse by the supervisor and therefore to expound on that case and to rely on it for the proposition that under maine law discipline and essentially any other action be  a discussion that she was having with her with her colleagues she gets a warning that she feels is unfair about her work she and these take place with some consistency over the hostile work environment you're under that is the case in large part because ms floods claims are largely conclusory the actual facts on the record evidence that yes there may have been unfriendly looks and glares but in terms of the actions that give rise to this claim there were four alleged comments from her one up positive comment about this flood hairstyle another comment about the health benefits of adopting a vegan diet another about whether it was appropriate the picture of her at an event in an around the same time ms flight had just returned from a different position where the standards were different richie was based she was evaluated on a different standard and moreover her direct manager changed at that time it was clear from the record that at that time michele tablet took over as her direct manager who she who was responsible for monitoring her calls and essentially raiding her performance i don't understand your assertion that the two hundred dollars fine levied in king was or is was a hostile work environment claimed it was one comment i understand your honor however what the court focused on was as it was an abusive comment and my own my interpretation of that decision was that it was not based it was not being deemed discipline but rather an incident of abuse involving a were duction i was on the one hand and then we computing them on favorably to the employee without giving a credible explanation  deemed it an abuse of reprimand involving derogatory statements such derogatory remarks are not evident in this case moreover the facts that you're referring to is the bank's position that magistrate judge have checked him properly credited those as facts when in fact they were simply the conclusory assertions of misled the record simply does not reflect that diana castle retroactively manipulated data that was ms floods belief as to belief as to the verbal warning only it had nothing to do prior to the receipt of a verbal warning in the first week of september misled received a performance evaluation in august but the evaluator for that was her direct manager jeremy turn and he in that warning noted that she needed to improve efficiency specifically in the calculation of her hours meaning she was evaluated in essence on how many calls she took her again she was expected to take calls at every minute of the day that she was working and so any ox time meant that it was time held against her jeremy turn here noted that she needed to improve on that and that she was deficient in that area in august he also noted in his performance review  are there is evidence in the record was flawed because she was finding her present circumstances on acceptable to sort of look for other jobs within the company she initiated the process only to find th have open to one recruiter on one occasion to report as to ms floods performance to date that is it in terms of the record on this alleged failure she  brief a i would argue that missed but has waived that claim but if this court were to consider it before the court there's a you know a prima fascia burden that she must establish on a failure to claim and there's far more to it and what she's forward she has identified the positions for which she has not identified her qualifications for those positions nor has she identified whether or not the individuals ultimately chosen for those positions were outside of her protected class so even if it were before this court she simply your honor this flood has not identified these individuals moreover the issue with kerry floods visits were not about socializing with her it's very clear from the record and misled admitted at her deposition that diana castle nor anyone else in the bank forbidden her from socializing with her wife the issue was that carrie flood would come to her desk during non break periods and there's simply no evidence that other employees were allowed to socialize with their spouses or significant others during periods of time when they were supposed to be on the phones and i think that those are two very distinguishing features ok in terms of that   order of the court in august the court granted the motion account to defamation claim and its entirety and found that we had in fact stated a claim for defamation so to the extent that the court went on to express some kind of a warning then it may construe that claim as draft in a limited way i the summary judgment motion when the court actually ruled that that the motion should be limited when the claim should be limited to far as who it was published to i don't think there's any authority in maine i don't think it's the law man i don't think it's required a notice pleading to say exactly who you are publishing to do so it may not environment clean as well so that they're not simply stand alone claims simply stand alone claims your honor i think that it all has to be viewed in its totality and that the bank has been cherry picking the facts which would be shortly after october first that they said that she had been terminated that the h r officials had we're not the only ones who made the decision to tie that in with the discriminatory animists thank you counsel thank you