MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 ME	176

Docket: Yor-18-513

Argued: October	8,	2019

Decided: December	30,	2019

Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

DARREN	JOHNSON

v.

YORK	HOSPITAL

HJELM,	J.

[¶1]		Darren	Johnson,	a	former	employee	of	York	Hospital, appeals	from	

a	 summary	 judgment	 entered	 in	 favor	 of	 the	 hospital	 by the	 Superior	 Court	

(York	County, O’Neil,	J.)	on	Johnson’s	claims	of a	hostile	work	environment and	

gender discrimination prohibited	by the	Maine	Human	Rights	Act	and unlawful	

retaliation	in	violation	of the	Maine	Whistleblower’s	Protection	Act.		Johnson	

contends	 that	 the	 court	 erred	 when	 it	 concluded	 that	 he failed	 to present

evidence that (1)	he	had	been subjected	to a	hostile	work	environment arising	

from	sexual	harassment;	(2)	he	was	terminated	from	the	hospital	in	retaliation	

for	 complaints he had made	 about	 hospital	 employees;	 and	 (3) he	 was	 the	

victim	 of	 gender-based	 discrimination.	 	 We	 find	 no	 error	 and	 affirm	 the	

judgment.	
2

I.		BACKGROUND

[¶2]	We	draw	the	following	account	of	this	case	from	both	the	procedural	

record	and	the	record	on summary	judgment,	which	we	view in	the	light	most	

favorable	to	Johnson	as	the	nonmoving	party.		See Grant	v.	Foster	Wheeler,	LLC,	

2016	ME	85,	¶	12,	140	A.3d	1242.

[¶3]	 In	August	of	2011,	 the	hospital	hired Johnson	as	a	part-time	MRI	

technician.	 	 When	 he	 was hired,	 Johnson	 was	 not	 promised	 full-time	

employment but	 believed	 that	 he	 would	 be	 able	 to	 work more	 hours	 or be	

placed	 in	 a	 full-time	 position	 if	the opportunity	 arose.	 	In	 2013,	 a	 CAT	 scan	

technician	 position became	 available	 at	 the	 hospital.	 The	 position	 was	 not	

advertised,	 and	Johnson did	 not	 apply	for	it,	 but he found	 out	later	 that	 the	

position	was	filled	by someone with	less	experience	than	he	had.		The	record	

does	not	indicate	the	gender	or	any	other	characteristics	of	the	person	who	was	

hired	for	the	position.

[¶4]	 In	June	of	2013, Johnson learned	that a	complaint had	been	made

against him by	a	co-worker	arising	from an	interaction	between	them while	the	

co-worker was a	 patient	 at	 the	 hospital.	 Johnson	 denied any wrongdoing.

Nonetheless,	because	of	the	incident,	a representative of	the	hospital’s	human	
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resources office requested	that	the	co-worker	be	assigned	a	parking	space	close	

to	the	hospital	building	because	of	“the	unpredictability	of	Johnson’s	actions.”

[¶5]		In	February	of	2014,	Johnson	met	with	his	supervisor	for	an	annual

performance	evaluation.		At	 the meeting,	the supervisor	 told	Johnson that he	

needed	“to	work	on” his	communication	style,	act	less	defensively, and improve	

his	 relationships	with	 other	 staff	members.	 Johnson	did	 not	agree	with	that

assessment.	 According	to	Johnson,	during	the	meeting	the supervisor	told	him,

“I	can’t	stand	talking	to	you	anymore.	 You	remind	me	of	my	ex-husband.”		The	

supervisor	later	explained	to	Johnson	that	he	reminded	her	of	her	ex-husband	

because	Johnson	had	been yelling	at	her.1		After	the meeting,	Johnson	and	his	

supervisor	 had very	 limited contact with	 each	 other,	 and Johnson	 does	 not	

contend that	the	supervisor	engaged	in	any	other	inappropriate	conduct.	

[¶6]	 Three	months	after	the performance	evaluation, Johnson	became

involved	in	a	disagreement with	a	nurse about	a	patient’s	care.	 Following	the	

incident,	Johnson	overheard	the	nurse	tell	a	third	person that	she	would	like	to	

“smack”	Johnson.		

[¶7]	 On	May	30, 2014,	Johnson	met	with	a	human	resources	officer	and	

complained	 about	 the statements	 made	 by	 the	 supervisor	 and	 the	 nurse.		

 1 Johnson	admits	that	the	supervisor	explained	this	to	him	but	denied	that	he	had	yelled	at	her.		
4

Approximately	 ten	 days	 later,	 Johnson	 clarified	 to the	 human	 resources

department	that	he	felt	he	was	the	victim	of	retaliation and had	been sexually

harassed	by	his	supervisor because	of	her	“ex-husband”	comment.		Given his

allegations,	Johnson	was	advised	several	times	to	submit	his	complaint	to	the	

hospital	president	through	a	formal	grievance	process,	but he never	did	so.

[¶8]	 	A	 member	 of	 the	 human	 resources staff	thoroughly	 investigated	

Johnson’s	 complaint	 and	 interviewed several	 people	 about	 Johnson’s

interactions	 with	 staff	 and	 patients.	 	 Among	 other	 things,	 the	 investigator	

interviewed	a	physician	who	described	an	incident	in	which	Johnson	had	acted	

“inappropriate[ly]	 and	 aggressive[ly]”	 toward	 the	 nurse	 who	 he	 claimed	

wanted	 to	 “smack”	 him,	 to	 the	 point	 where	 the	 physician	 intervened	 by

escorting Johnson	 from	 the	 scene.	 	 The	 report	 concluded	 that	 Johnson	 had	

engaged	in	an	“ongoing	pattern	of	inappropriate	behavior,” although	Johnson	

denied	having	acted	improperly.		

[¶9]	 	On	 June	 19,	 Johnson	 met	 with	 his	 supervisor	 and	the	 hospital’s	

“Leader	of	Staff	Experiences,” which	is	a	position	within	the	human	resources	

office.		Based	on	this	meeting	and	 the	investigation	 that	had	been	conducted	

into	Johnson’s	complaints,	the	Leader	concluded	that	“Johnson	was	creating	a	

hostile	 work	 environment”	 at	 the	 hospital.	 	 As	 a	 result,	 the	 Leader
5

recommended	 to	 the	 hospital’s	 president	 “that	 Johnson’s	 employment	 with	

York	[Hospital]	be	terminated	based	upon	safety	concerns	relating	to	patients	

and	staff.”2		Johnson	was	terminated	on	July	5,	2014.		

[¶10]		During	the	time	he	was	employed at	the	hospital,	Johnson	did	not	

consider	 quitting	 his	 job because of	 any	 conduct	 by	 co-workers;	 he	 did	 not	

refrain	from	going	to	work	because	of	any	concern	for	harassment	or	hostility	

by	 others;	 and	 he	wanted	 to	 continue	working	 at	 the	 hospital	for	 as	long	 as	

possible.		

[¶11]	 After	the	 hospital	 terminated	Johnson’s	 employment,	 he	 filed	 a	

discrimination	 complaint against	 the	 hospital with	 the	 Maine	 Human	 Rights	

Commission.	 	 See	 5	 M.R.S.	 §	 4611 (2018).	 	 The	 Commission ultimately	

determined	that	there	were	no	reasonable	grounds	to	find that the	hospital	had	

discriminated	against	Johnson	on	the	basis	of	sex,	that	he	had	been	subjected

to	 a	 hostile	 work	 environment,	 or that the	 termination	 was retaliatory.	 	 See	

5 M.R.S. §	4612(1),	(2) (2018).		

 2 This	assertion	is	contained	in	the	hospital’s	statement	of	material	fact.		See	M.R.	Civ. P.	56(h)(1).		

Johnson’s	response	was	a	qualification,	see	M.R.	Civ. P.	56(h)(2),	but	the	accompanying	explanation	

states	only	that,	while	this	was	the	hospital’s	stated	reason	for	termination,	he	disputes	the	accuracy	

of	the	complaints	gathered	during	the	HR	investigation	“and	maintains	that	his	complaints	against	

others and	[his	supervisor’s]	dislike	of	him	were	the	driving	forces	behind	his	termination.”		Johnson	

offered	 no	 record	 citations	 for	 this	 response,	 and the	 hospital’s	 assertion	 is therefore deemed	

admitted.		See	M.R.	Civ. P.	56(h)(4).
6

[¶12]		In	January	of	2017,	Johnson filed	a	complaint against	the	hospital

in	 the	 Superior	 Court	 alleging that	 the	 hospital	 had created a	 sexually	

objectionable,	 hostile	 work	 environment	 in violation	 of	 the	 Maine	 Human	

Rights	 Act (MHRA), 5	 M.R.S. §§ 4551-4634 (2018);	 that	 the	 hospital	 had	

retaliated against	Johnson	in	violation	of	the Maine	Whistleblowers’	Protection	

Act(WPA), 26	M.R.S. §§	831-840 (2018); and	that	the	hospital	had	fired Johnson	

on	the	basis	of	his	sex	also	in	violation	of	the	MHRA.		

[¶13]	 	The	hospital	moved	 for	 entry	 of	 a summary	 judgment on	 all	 of	

Johnson’s	claims.		See M.R.	Civ.	P.	56.		After	holding	a	hearing,	the	court	granted	

the	 motion.	 Applying	 the	 proper standard	 for	 evaluating	 the	 record	 on	

summary	judgment,	the	court	concluded	that,	as	a	matter	of	law, the	incidents	

underlying	 Johnson’s	claim	of	a	hostile	work	environment	did	not	rise	 to	 the	

level	 necessary	 to	 support such	 a	 claim;	 that	 Johnson’s	 WPA	 claim	 failed	

because	 there	 was	 no	 evidence	 of	 a	 causal	 connection	 between	 Johnson’s	

complaints	 about	 his	 co-workers’	 conduct	 and	 the	 hospital’s	 decision	 to	

terminate	him;	and	that	Johnson	had	not	presented	evidence	that	the	adverse	

employment	action	instituted	by	the	hospital	was	based	in	whole	or	in	part	on	

his	gender.		
7

[¶14]		From	the	judgment,	Johnson	filed	a	timely	appeal.	 See 14	M.R.S.	

§ 1851	(2018); M.R.	App.	P.	2B(c)(1).		

II.		DISCUSSION

[¶15]	 We	 review	the summary	judgment	 de	 novo	 to	 determine	if	 the

record	generates any genuine	issue	of	material	fact,	viewing	the	evidence	in	the	

record	 and all	 reasonable	 inferences	 in	 favor	 of	 Johnson	 as	 the	 nonmoving	

party.		Grant,	2016	ME	85,	¶	12,	140	A.3d	1242.		“A	fact	is	material	if	it	has	the	

potential	to	affect	the	outcome	of	the	suit,	and	a	genuine	issue	of	material	fact	

exists	when	a	fact-finder	must	choose	between	competing	versions	of	the	truth,	

even	 if	 one	 party’s	 version	 appears	 more	 credible	 or	 persuasive.”	 	 Angell	 v.	

Hallee,	2014	ME	72,	¶	17,	92	A.3d	1154 (quotation	marks	omitted).		A	defendant	

who	moves	for	a	summary	judgment bears	the	burden	of	establishing,	on	the	

basis	 of	 facts	 that	 are	 not	 subject	 to	 genuine	 dispute, that	 it	 is	 entitled to	

judgment	as	a	matter	of	law.		Oceanic	Inn,	Inc.	v.	Sloan’s	Cove,	LLC,	2016	ME	34,	

¶	26,	133	A.3d	1021.		

A. Hostile	Work	Environment	

[¶16]	 Johnson’s	 claim	 that	 he	 was	 subjected	 to	 a	 hostile	 work	

environment	 arising	 from	 sexual	 harassment	 is	 based	 on	 evidence	 of	 two	

incidents:	his supervisor’s	comment	that	she	could	not	“stand”	talking	to	him	
8

because	he	reminded	her	of	her	ex-husband;	and,	more	than	three	months	later,	

a	 co-worker’s	 statement	 to	 a	 third	 person	 that	 she	 wanted	 to	 “smack	 him.”		

Johnson	contends	 that	 the	court	erred	by concluding	 as	a	matter	 of	law that

these	alleged	statements did	not	combine	to	create a	hostile	work	environment

based	on	sexual	harassment within	the	meaning	of the	MHRA.		

[¶17]	 In	 pertinent	 part,	 the	MHRA	 states,	 “It	is	 unlawful	 employment	

discrimination,	in	violation	of	this	Act, .	.	. [f]or	any	employer	to .	.	.	discharge	an	

employee	or	discriminate	with	respect	to .	.	.	terms,	conditions .	.	.	or	any	other	

matter directly	 or	 indirectly	 related	 to	 employment	 .	 .	 . because	 of	 [the	

employee’s] .	 .	 . sex	 .	 .	 .	 .”	 	 5	 M.R.S.	 §	 4572(1)(A).	 	 Therefore,	 a	 claim	 of	

discrimination	 based	 on	 a	 hostile	 work	 environment created	 by	 sexual	

harassment	comprises	the	following	elements:	

(1)	that	[the	plaintiff] is	a	member	of	a	protected	class;	(2)	that [the	

plaintiff]	was	subject	to	unwelcome sexual harassment;	(3)	that	the	

harassment	 was	 based	 upon	 sex;	 (4)	 that	 the	 harassment	 was	

sufficiently severe	 or	 pervasive	 so	 as	 to	 alter	 the	 conditions	 of	

plaintiff’s	employment	and	create	an	abusive	work	environment;	

(5)	 that	 sexually	 objectionable	 conduct	was	 both	 objectively and	

subjectively	offensive,	such	that	a	reasonable	person would	find	it	

hostile	or	abusive	and	the	victim	in	fact	did	perceive	it	to	be	so;	and	

(6)	that	some	basis	for	employer	liability	has	been	established.	

Watt	v.	UniFirst	Corp.,	2009	ME	47,	¶	22,	969	A.2d	897.
9

[¶18]		The	question	of	whether	a	work	environment is	actionably hostile	

requires	a	consideration	of “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.” Doyle	 v.	 Dep’t	 of	 Human	

Servs.,	 2003	 ME	 61,	 ¶	 23,	 824	 A.2d	 48 (quotation	 marks	 omitted).	 To	 be	

actionable,	 the	 discriminatory	 conduct	 must	 be	 “sufficiently	 severe	 or	

pervasive	[to	 create] a	 hostile	 or	 abusive	working	 environment.” Nadeau	 v.	

Rainbow	Rugs,	Inc.,	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.”		Id.;	see	also	Faragher	v.	City	of	Boca	Raton,	524	

U.S.	 775,	 786-88	 (1998) (discussing	 claims	 of	 workplace	 sexual	 harassment	

that	violates the applicable	provisions	of	the Civil	Rights	Act	of	1964,	42	U.S.C.	

§	2000e-2(a)(1) (LEXIS	through	Pub	L.	No.	116-77)).		

[¶19]	 Even	when the	evidence	is	viewed	in	the	light	most	favorable	to	

Johnson,	the	two	separate	incidents	underlying	his	discrimination	claim	do	not,	

as	a	matter	 of	law,	 rise	 to	 the	level	 of	sexual	harassment	 that	 resulted	in	an	

actionably	hostile	 or	abusive	work	environment.		The	 second	incident,	when	
10

Johnson	 overheard	 a	 co-worker	 tell	 someone	 that	 she	 wanted	 to	 “smack”	

Johnson,	was	not even arguably	connected	to	Johnson’s	gender.

[¶20]		That	leaves	only	the	first	incident.		An	isolated	incident	may	result	

in	workplace	 discrimination,	 but	 only	if	 that	incident	is	 “extremely	 serious.”		

Faragher,	524	U.S.	at	788; see	also Rivera-Rivera	v.	Medina	& Medina,	Inc.,	898	

F.3d	77,	93	(1st	Cir.	2018).		The	single	comment	of	Johnson’s	supervisor	that	

she	could	not	tolerate	talking	with	him	and	that	he	reminded	her	of	her former	

husband	is	not	of that	magnitude.		

[¶21]	 	 For	 these	 reasons,	 the	 court	 correctly	 granted	 a	 summary	

judgment	in	favor	of	the	hospital	on	Johnson’s	discrimination	claim	based	on	

allegations	of	sexual	harassment.

B. Whistleblower	Retaliation	

[¶22]	 Johnson	next	contends	that	the	court	erred	when	it	concluded	that	

the	record	on	summary	judgment	did	not	include	evidence	that	the	hospital’s	

decision	to	terminate	his	employment was	in	retaliation	for complaints	he	had	

made	 about	 other	 employees’	 conduct	 toward	 him and	 therefore was in	

violation	of	the	WPA.	 See 26	M.R.S.	§	833(1)(A)-(B).	

[¶23]	 To	establish	a	prima	facie	case	for	retaliation	pursuant the	WPA,	

an	 employee	 must	 show	 that	 (1)	 he	 “engaged	 in	 activity	 protected	 by	 the	
11

statute,	(2)	[he]	was	the	subject	of	adverse	employment	action,	and	(3)	there	

was	a	causal	link	between	the	protected	activity	and	the	adverse	employment	

action.” Sullivan	v.	St.	Joseph’s	Rehab. &	Residence,	2016	ME	107,	¶	14,	143	A.3d	

1283 (quotation	 marks	 omitted). “In	 the	 context	 of	 the	 summary	 judgment	

analysis,	the	employee’s	burden	of	proving	a	prima	facie	case	of	retaliation	is	

relatively	light,	and	 requires	 only	a	 small	 showing	 that	is	not	 onerous	and	is	

easily	 made.” Brady	 v.	 Cumberland	 Cty.,	 2015	 ME	 143, ¶ 14,	 126	 A.3d	 1145

(citation	omitted)	(quotation	marks	omitted).	An	employee’s	protected	activity	

is	 causally	 connected	 to	 the	 adverse	 employment	 action	 “when	 the	 alleged	

retaliation	 was	 a	 substantial,	 even	 though	 perhaps	 not	 the	 only, factor	

motivating	 the	 adverse	 employment	 action.”	 Id.	 ¶	 16 (quotation	 marks	

omitted).	 	 Any	 relevant	 evidence,	 including	 temporal	 proximity,	 may	 be

considered	 in	 determining	 whether	 there	 is	 an	 arguable	 causal	 nexus.	 	 See	

Cormier	v.	Genesis	Healthcare	 LLC,	2015	ME	161,	¶	 22, 129	 A.3d	 944;	Brady,	

2015	ME	 143,	 ¶	 16,	 126	 A.3d	 1145;	Daniels	 v.	Narraguagus	 Bay	Health	 Care	

Facility,	2012	ME	80,	¶	21,	45	A.3d	722.	

[¶24]	 The	 record	 on	 summary judgment affirmatively	 establishes the	

hospital’s stated	 reason	 for terminating	 Johnson’s	 employment—specifically,	

“safety concerns	relating	to	patients	and	staff” as	created by	Johnson’s	behavior.		
12

The	termination	decision	followed	a	“thorough”	investigation	of	Johnson’s	own	

complaints—an	investigation	that	revealed	that	Johnson	himself	had	engaged	

in	an	“ongoing	pattern	of	inappropriate	behavior.”		A	human	resources	officer	

at	 the	 hospital	 (the Leader	 of	 Staff	 Experiences)	 relied	 on	 the	 results	 of	 the	

investigation,	 concluded	 that	 Johnson	 had	 created	 a	 “hostile	 work	

environment,” and recommended	 to	 the	hospital’s	president	 that	 Johnson	be	

fired because	Johnson	posed	“safety	concerns”	for	patients	and	staff.	 Johnson’s	

employment	was	then	terminated.		

[¶25]	 	 In	 his	 summary	 judgment	 filings,	 Johnson disputed	 the	

truthfulness	 of	 the	 accounts	 of	 his	 own	 behavior	 provided	 to	 the	 hospital’s	

investigator.		That	dispute, however,	does	not	transform the	hospital’s	rationale	

for	its	decision	 to	 terminate	 Johnson’s	employment	into	 one	 that	was	illegal.		

Rather,	on	 this	record,	as	 the	 trial	court	astutely	observed,	Johnson’s	dispute	

shows	only	that	the reports	of	Johnson’s	intolerable	behavior	may	have	been	

incorrect.	 Thus, it	 remains	 established that	 Johnson	was	 terminated not for	

retaliatory	 reasons but	 based	 on investigated	 reports	 of	 his	 own	 untoward	

conduct.	 	 Therefore,	 the	 record	 does	 not	 generate a	 prima	 facie	 case	 of	
13

retaliation,	 and	 the	 court	 correctly	 entered	 a	 summary	 judgment	 against	

Johnson on	his WPA	claim.

3

C. Sex	Discrimination

[¶26]	 Johnson	 finally	 contends	 that	 the	 court	 erred	 by granting a	

summary	judgment	on his claim	of	workplace sex	discrimination that	resulted	

in	his	discharge	from	employment. As	framed	by	Johnson,	the	factual	predicate	

for	 this	claim	consists	of	 the	hospital’s	2013	decision	 to	 fill	a	CAT	technician

position	with	another	person	and	his supervisor’s	comment	in	February	2014,	

when	 she	 disparagingly	 compared	 Johnson	to her	 ex-husband.	 	 In	 its	 order	

granting	 a	 summary	 judgment	 for	 the	 hospital,	 the	 court	 concluded	 that	 the	

former	aspect	of	 Johnson’s	claim	was	 time-barred	and	 that	 the	latter	did	not	

reflect	gender-based	animus.

[¶27]		Set	out	in	the	MHRA,	the	legal	basis	for	Johnson’s	claim	of	gender	

discrimination	is	the	same	as	the	law	that	underlies	his	claim	of	a	hostile	work	

 3 To	the	extent	that	Johnson	suggests	that	there	is	evidence	of	causation	based	on	the	temporal	

proximity	between	the	date	of	his	complaints	and	the	date	he	was	fired,	that	argument	fails	on	this	

record	because,	as we	discuss	in	the	text,	the	evidence establishes	that	the	hospital	terminated	his	

employment	 for	 other	 reasons,	 namely, the	 reports	 of	 Johnson’s	 own	 behavior	 that	 the	 hospital	

received	from	other	employees.		We	therefore	need	not	address	whether	temporal	proximity	alone

is	sufficient	 to	generate a	dispute	of	material	 fact	as	to	causation,	allowing	a	plaintiff	to	survive	a	

motion	for	summary	judgment.		See	Theriault	v.	Genesis	HealthCare	LLC,	890	F.3d	342,	352	(1st.	Cir.	

2018) (collecting	Maine	cases	and	construing	Maine	law	to	require	more	than	temporal	proximity	to	

make	out	a	prima	facie	case	of	causation	in	WPA	retaliation	cases).		
14

environment:	“It is	 unlawful	 employment	 discrimination,	 in	 violation	 of	 this	

Act, .	 .	 .	[f]or	any	employer	 to .	 .	 .	discharge	an	employee .	 .	 .	because	 of	 [the	

employee’s] .	.	. sex	 .	.	.	.”		5	M.R.S.	§	4572(1)(A).		

[¶28] In	 claims	 of	 sex	 discrimination,	 Maine	 law	 is	 still	 based	 on	 the	

burden-shifting model	announced	in	McDonnell	Douglas Corp.	v.	Green,	411	U.S.	

792,	802-803	(1973). See Me.	Human	Rights	Comm’n	v.	Dep’t	of	Corr.,	474	A.2d	

860,	866-67 (Me.	1984);	Me. Human	Rights	Comm’n.	v.	Auburn,	408	A.2d	1253,

1261-62 (Me.	1979). Pursuant	to	that	framework,	the	plaintiff has	the	initial	

burden	of	production	and	must	present	evidence that he or	she is	a	member	of	

a	 protected	 class,	 was qualified	 for	 the	 position	 at	 issue,	 and was	 adversely	

treated	by	the	employer	based	on	gender.		Me.	Human	Rights	Comm’n	v.	Dep’t	of	

Corr.,	474	A.2d at	867.		If,	in	the	context	of	summary	judgment	motion	practice,	

the	employee	meets	 the	burden	 of	production	 for “these	 three	elements,	 the	

burden	 then	 shifts	 to	 the	 employer	 to	 produce	 evidence	 of	 a	 legitimate,	

nondiscriminatory	basis	for	its	action.”		Daniels,	2012	ME	80,	¶	15,	45	A.3d	722.		

Finally,	if	the	employer	presents	such	evidence,	“the	burden	shifts	back	to	the	

plaintiff	 to	 demonstrate	 that	 the	 nondiscriminatory	 reason	 is	 pretextual	 or	

irrelevant	 and	 that	 the	 unlawful	 discrimination	 brought	 about	 the	 adverse	

employment	action.”		Doyle,	2003	ME	61,	¶	15,	824	A.2d	48.		
15

[¶29]	 	In	 the	 context	 of	 summary	 judgment	motions	in	 claims	 of	WPA	

retaliation,	we	have	dispensed	with	the McDonnell Douglas framework because	

once	a	plaintiff	produces	evidence	that	satisfies	the	three	elements	of	the	initial	

step	in	that	process,	there	is	no	reason	to	go	further;	the	plaintiff	has	then	made	

out	a	prima	facie	case,	and	the	remaining	steps	are	useful	only	at	trial	where	

the burden	of	persuasion	is	at	issue,	and	not	the	burden	of	production,	which	is	

the	 dispositive	 question	 raised	 in	 a	 summary	 judgment	 motion.	 See Brady,	

2015	ME	143,	¶¶	35-36,	126	A.3d	1145.		We	have	not	had	occasion	to	consider	

whether	there	is	any	reason	not	to	disengage	the	McDonnell	Douglas paradigm	

from	sex-based discrimination	claims.		This case	also does	not	create	such	an	

occasion	because,	as	we now explain,	 the	record	on	summary	judgment	does	

not	allow	Johnson	to	satisfy even	the	initial	requirements of that	framework.

[¶30] The record	is	not	sufficient	 to	generate	a	 triable	contention	 that	

Johnson	was	terminated	from	employment	by	the	hospital	because	he	is	male.		

As	we	have	discussed	above,	the	record	establishes	the	basis	for	that	adverse	

employment	 action,	 namely,	 Johnson’s	 seriously	 concerning and	 disruptive	

conduct,	which	created	a	hostile	work	environment	 for	other	employees	and	

concerns	for	the	safety	of	others—patients	and	staff	alike.		
16

[¶31]		Beyond	that,	regarding	the	specific	factual	grounds	for	this	claim,	

the	record is	devoid	of	any	evidence	suggesting	 that, when	 the	hospital	 filled	

the	 CAT	 technician	 position	 in	 2013,	 it passed	 over	 Johnson	 because	 of	 his	

gender.		The	record	reveals	nothing	more	than	that the	person	selected	by	the	

hospital	was	less	qualified	than	Johnson.		On	that	meager evidence,	a	fact-finder	

could	not	conclude	 that	 Johnson’s	sex	had	anything	 to	do	with	the	hospital’s	

hiring	decision.4

[¶32]		With	respect	to	the	second	factual	aspect	of	this	claim,	as we	have

noted,	 the	 court	 concluded	 that	 the	 supervisor’s	 comment	 that	 Johnson	

reminded	her	of	her	former	husband	could	not	demonstrate	that	the	ultimate	

termination	 decision	 was	 based	 in	 whole	 or	 in	 part	 on	 gender.	 	 At	 oral	

argument,	 the	 hospital	 conceded	 that,	 for	 purposes	 of	 a	 summary	 judgment	

analysis,	the	supervisor’s statement	could	be	viewed	as	reflective	of	sex-based	

animus.	 	Even	 so,	 the	 question	 is	whether	 the	 record	 contains	 evidence	 of	 a	

causal	connection	between	that	isolated	statement	and	Johnson’s	discharge	five	

months	later.		

 4 The	hospital	argues	alternatively,	and	the	court	concluded,	that	this	part	of	Johnson’s	claim	was	

time-barred.	 	 See 5	 M.R.S.	 §	 4613(2)(C)	 (2018).	 	 Because	 there	 is	 no	 evidence	 of	 sex-based	

discrimination	in	the	first	place	when	the	hospital	decided	to	assign	someone	other	than	Johnson	to	

the	CAT	technician	position,	we	need	not	and	do	not	reach that issue.		
17

[¶33]		The	record	contains	no	such	evidence.		Johnson	was	fired	because	

a	member	of	the	hospital’s	human	resources	department	reviewed	the	results	

of	 a	 thorough	 personnel	 investigation that revealed information	 about	

Johnson’s	disruptive	and	unacceptable	workplace	behavior,	and	then,	because	

of	 the	 safety	 concerns	 revealed	 by	 the	 investigation,	 recommended	 to	 the	

hospital’s	president that	Johnson	be	terminated.		Further,	there	is	no	evidence	

that	Johnson’s	immediate	supervisor,	who	had	made	the	comment, played	any	

role	in	the	decision-making	process	that	led	to	Johnson’s	termination.5		

[¶34]		In	concluding	that	the	record	does	not	generate	a	prima	facie	case	

of	sex-based	discrimination,	we	remain	“mindful	that	discrimination	claims	in	

general	 are	 often	 difficult	 to	 assess	 at	 the	 summary	 judgment	 stage,	 and	

particularly	 that	 the	issue	of	whether	an	employee	has	generated	an	issue	of	

fact	regarding	an	employer’s	motivation	or	intent	is	one	heavily	dependent	on	

the	individual	facts	before	the	court.”	 Daniels,	2012	ME	80,	¶	15,	45	A.3d	722	

(quotation	marks	omitted);	see Cummings v.	Standard Register	Co.,	265	F.3d	56,	

 5 The	 “cat’s-paw”	 theory	 of	 employer	 liability	 may	 allow	 an	 employer	 to	 be	 held	 liable	 for	

employment	discrimination	even	if	 the	decision-maker	was	unaware	of	 the	employee’s	protected	

activity	or	status.		Cormier	v.	Genesis	Healthcare	LLC,	2015	ME	161,	¶	18	n.4,	129	A.3d	944.		That	

theory	“requires	 evidence that	 an	 agent of	 the	 employer	 with	 a	 retaliatory	 motive	 intentionally	

influenced	another	 agent,	who	is	 unaware	 of	 the	 protected	 activity,	 to	 take	 adverse	 employment	

action	against	 the	 employee.	 	The	improper	motive	is	 thereby	imputed	 to	 the	 decision-maker	 as	

evidence	of	a	causal	connection	between	the	protected	activity	and	the	adverse	action.”		Id.		Johnson	

does	not	invoke	that	theory,	and	this record	on	summary	judgment	would	not	support it in	any	event.
18

63	 (1st	 Cir.	 2001) (recognizing	 that	 “discrimination	 is	 often	 subtle	 and	

pervasive,”	so	plaintiffs	must	be	able	to	rely	on	circumstantial	evidence	to	show	

discrimination);	 Conway	 v.	 Electro	 Switch	 Corp.,	 825	 F.2d	 593,	 597	 (1st	 Cir.	

1987) (same).		Nonetheless,	the	record in	this	case does	not	generate	a	triable

contention	that	Johnson	was	fired	because	he	is	male.

III.	 CONCLUSION

[¶35] In	summary,	the	court	did	not	err	by granting	a	summary	judgment	

in	 favor	 of	 York	 Hospital on	 all	 of	 Johnson’s	 claims of	 discrimination	 in	 the	

workplace.

The	entry	is:

Judgment	affirmed.	

Sarah	A.	Churchill,	Esq.(orally),	Nichols	&	Churchill,	P.A.,	Portland,	for	appellant	

Darren	Johnson

Mark	 V.	 Franco,	 Esq.,	 and	 Jeana	 M.	 McCormick,	 Esq. (orally),	 Drummond	

Woodsum,	Portland,	for	appellee	York	Hospital

York	County	Superior	Court	docket	number	CV-2017-25

FOR	CLERK	REFERENCE	ONLY