MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 ME 176 Docket: Y or - 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 h ospital in	retaliation for	 complaints he had made	 about h ospital	 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 su mmary	judgment , which	we view in	the	light	most favorable	to	Johnson	as	the	nonmoving	party. See Grant	v.	Foster	Wheeler,	LL C , 2016	ME	85,	¶	12,	140	A.3d	1242

. [¶ 3 ] I n	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 h ospital. 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	h e	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	th em 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	h uman3

r esources 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	a n	annual performance	evaluation .		At	 t he meeting, the supervisor	 told Johnson that he needed “ to	work	on ” his	communication style , act	less	defensively, and improve his	 relationships	with	 other	 staf f	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	th e meeting, Johnson	and	his supervisor had very limited contact with	 each	 other , and Johnson does	 not contend that	the	superv isor	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 over heard	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	t hat	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	thro ugh	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

escort ing Johnson	 from	 th e	 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	 hosp it al’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	 resu lt,	 the	 Leader5 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

. [¶1 0 ] 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

. [¶1 1 ] 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 h ospital	had discriminated	against	Johnson	on	the	basis	of	sex, that	he	had	been subject ed to	 a	 hostile	 work	 environment ,	 or that the	 termination	 was re taliatory

. 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 other s 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 deem ed admitted. See M.R.	Civ. P.	56(h)(4).6 [¶1 2 ] In	January	of	2017,	Johnson filed	a	complaint against	the h ospital
in the	 Su perior	 Court alleging that	 the	 hospital	 had creat ed a sexually objectionable, hostile	 work	 environment	 in violation	 of	 the	 Maine	 Human Rights	 Act (MHRA) , 5	 M.R.S

. § § 4551

- 4 634 (2018) ; that	 the	 hospital	 had retaliat ed 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

. [¶1 3 ] The h ospital 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	th at ,	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	th e	adverse employment	action	instituted	by	the	hospital	was	based	in	whole	or	in	part	on his	gender.7 [¶1 4 ] From	the	judgment, Johnson filed	a timely	appeal

. See 14	M.R.S. § 1851	(2018) ; M.R.	App.	P. 2B(c)(1)

. II.		DISCUSSION [¶1 5 ] We	 review the summary	judgment	 de	 novo	 to	 determine	if	 the record	generates a ny genuine	issue	of	material	fact,	viewing	th e	evidence	in	the record an d 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	 persu asive.” 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 judgm ent	as	a	matter	of	law. Oceanic	Inn,	Inc.	v.	Sloan’s	Cove , LLC ,	2016	ME	34, ¶	2 6 ,	133	A.3d	1021.
A

. Hostile	Work	Environment [¶1 6 ] 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	him8 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 withi n	the	meaning	of the	MHRA

. [¶ 1 7 ] 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) t hat [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	 harass ment	 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	 objective ly 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 [¶1 8 ] 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	 un reasonably 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). T o	 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,	 78 6

- 88	 (1998) (discussing	 claims	 of	 workplace	 sexual	 harassment that	violate s 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) ). [¶1 9 ] 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,	when10 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

. [¶ 2 1] 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 t he	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	 the11 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 relativel y	light,	and	 requires	 only	a	 small	 showing	 that	is	not	 onerous	and	is easily	 made.” Brady	 v.	 Cumberland	 Cty. ,	 2015	 ME	 14 3 , ¶ 14,	 126	 A.3d	 1145 (citation	omitted) (quotation	marks	omitted)

. A n	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	 (th e Leader	 of	 Staff	 Expe riences)	 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 ] I n	 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	 of13 retaliation ,	 and	 the	 court	 c orrectly	 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,	t he	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	Health C are	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 : “ I t 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)

. S ee Me.	Human	Rights	Comm’n	v.	Dep’t	of	Corr

. , 474	A.2d 860,	86 6

- 67 (Me.	1984) ; M e. Human	Rights	Comm’n.	v.	Auburn, 408	A.2d	1253,
126 1

- 62 (Me.	1979 )

. Pursuant	to	that	framework,	the plaintiff has	the initial burden of	production and must	present	evidence that he or	she i s	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	 abo ut	 the	 adverse employment	action.” Doyle , 2003	ME	61,	¶	1 5 ,	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	f u rther;	the	plaintiff	has	then	made out	a	prima	facie	case,	and	the	remaining	steps	are	useful	only	at	trial	wh ere the burden	of persuasio n is	at	issue ,	and	no t	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 McDonnel l Douglas pa radigm from	sex

- based discrimination	claims.		Th is 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 ] Th e 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 s eriously	 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 [¶ 3 1] Beyond	that,	r egarding	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	J ohnson. On	that	meag er evidence,	a	fact

- finder could	not	conclude	 that	 Johnson’s	sex	had	any thing	 to	do	with the	hospital’s hiring	decision. 4 [¶ 32 ] W ith	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 i n	 whole	 or	 in	 part	 on	 gender. At	 oral argument,	 the	 hospital	 conceded	 that,	 f or	 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	di scharge	five months	later.

4 The	hospital	argues	alternatively,	and	the	court	concluded,	that	this	part	of	Johnson’s	cl aim	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 th at 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 terminate d

. 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	de pendent	on the	individual	facts	before	the	court.” Daniels ,	2012	ME	80,	¶	15,	45	A.3d	722 (quotation	marks	omitted) ; see Cummings v.	St andard 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	d ecision

- maker wa s	unaware	of	 the	employee’s	protected activity	or	status. Cormier	v. Genesis	H ealthcare	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	 emp loyee. 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	th is record	on	summary	judgment	would	not	support it in	any	event

.18 63	 (1st	 Cir.	 2001) (recognizing	 that “ discrimination	 is	 often	 subtle	 and pervasive,”	s o	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	er r	by granting	a	summary	judgment in	 favor	 of York	 Hospital on all	 of Johnson’s	 claims of	 discrimination	 in	 the workplace. The	entry	is: Judgmen t	affirmed.

Sarah	A.	C hurchill,	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 F OR C LER K R EFERENCE O NLY