Articles Posted in Summary Judgment practice

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On April 20, 2022, the United States District Court for the District of Maine entered a Judgment in favor of Erin Papkee and against her former employer MECAP d/b/a Milk Street Capital, a real estate investment company in Portland, Maine, and Scott Lalumiere, the primary shareholder and manager of MECAP. Leading to this Judgment, on February 18, 2022, the Court granted the majority of Plaintiff’s Motion for Summary Judgement and concluded that MECAP and Lalumiere violated the plaintiff’s rights under both the Maine Whistleblowers’ Protection Act (MWPA), 26 M.R.S. §§831 et seq., as enforced through the Maine Human Rights Act (MHRA), 5 M.R.S. §§ 4551 et seq., and the anti-retaliation provision of the Fair Labor Standards Act (FLSA). These laws prohibit retaliation against employees who make reports to their employer or a government entity in good faith including reporting conditions or practices that they reasonably believe to be a violation of law, reporting conditions or practices that they reasonably believe to violate wage and hour laws such as when an employee is incorrectly paid as a contractor or misclassified, and bringing claims in court to enforce their rights under these laws.


In ruling in Ms. Papkee’s favor on summary judgment, the Court found that Ms. Papkee engaged in protected activity under the MWPA and FLSA when she objected to and opposed Lalumiere’s alleged attempt to defraud the court in a separate lawsuit and was forced to resign in retaliation for this protected activity.  The Court also found Ms. Papkee was subjected to unlawful retaliation when MECAP and Lalumiere brought baseless retaliatory counterclaims against her in response to her initial lawsuit.


In its April 20, 2022 Order, the Court awarded Ms. Papkee her lost wages which totaled $113,250. The Court also awarded Ms. Papkee $37,500 in compensatory damages for the stress and hardship she suffered as a result of the unlawful termination, and $4,968 in consequential damages. The Court also awarded Ms. Papkee $37,500 in punitive damages. Punitive damages are awarded to punish an employer-defendant when the evidence reflects that they knowingly or recklessly violated an employee’s protected rights.  In addition, the Court awarded Ms. Papkee attorneys fees in the amount of $25,500 for a total judgment of $218,718.  Ms. Papkee is represented by Chad Hansen and Ryan McClure of the Employee Rights Group.

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Today the Massachusetts Supreme Judicial Court issued a ruling which clarified how Massachusetts courts should determine whether a jury could reasonably determine that an employer acted with a discriminatory motive.  The court held that a jury could reasonably determine that an employer acted with a discriminatory motive if the employee presents evidence that the employer’s asserted reason for its actions was not the true reason.  In other words, the court held that an employee does not need to present direct or “smoking gun” evidence that an employer acted with a discriminatory motive in order to prevail.

In the modern day workplace, “smoking gun” evidence of a discriminatory motive, like an email to an employee saying “I’m not promoting you because you’re a woman,” is usually not available.  People are smart enough to hide their discriminatory biases.  Indeed, many people cannot even admit to themselves that they are acting with discriminatory biases.  For these reasons, juries in employment discrimination cases often have to determine whether they can infer a discriminatory motive based on evidence which casts doubt on the employer’s asserted reason for its actions against the employee.  This ruling from the Massachusetts Supreme Judicial Court will permit more juries to perform this role instead of allowing judges to do it.

The approach that the Massachusetts Supreme Judicial Court has taken respects the place of juries in the civil justice system.  The jury system is a democratic check on the judiciary.  Rather than giving judges all the power in the judicial system, like some countries do, the United States places some judicial power directly in the hands of citizens who serve on juries.  In cases where the parties have a right to a jury trial, the jury is supposed to serve as a fact finder that determines which facts to believe and decide which party should win the case based on those facts.  A classic factual determination that juries should perform in employment discrimination cases is determining whether an employer had a discriminatory motive for its actions.  The Massachusetts Supreme Judicial Court’s ruling helps to ensure that juries get to perform this fact finding role in employment discrimination cases.

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Recently, judges from the U.S. Seventh Circuit Court of Appeals, in Chicago, and a judge from the U.S. District Court of New Hampshire have expressed frustration with attorneys for corporate defendants who filed meritless summary judgment motions in employment discrimination cases.  A summary judgment motion asks a judge to dismiss a case before trial.  In employment discrimination cases, a judge may only grant a defendant-employer’s summary judgment motion if s/he finds that no reasonable jury could find in favor of the plaintiff-employee.

In Malin v. Hospira, Inc. et al., the Seventh Circuit reversed a trial court’s decision to grant Hospira’s summary judgment motion.  The plaintiff, Deborah Malin, alleged that Hospira unlawfully demoted her because she (a) complained about sexual harassment, (b) took FMLA leave, or (c) for both reasons.  Malin argued that Hospira retaliated against her when it demoted her in 2006 because of a sexual harassment complaint she made in 2003.  Hospira argued that no reasonable jury could find that it demoted Malin in retaliation for her 2003 complaint because three years separated the complaint and the demotion.  The Seventh Circuit rejected this argument, in part, because of evidence that Hospira had repeatedly retaliated against Malin before the 2006 demotion and, thus, the passage of time could not foreclose her claim.  With respect to Malin’s FMLA leave, Hospira argued that it decided to demote Malin before she requested FMLA leave and, as such, could not have taken her FMLA leave into account when it decided to demote her.  The Seventh Circuit determined that a jury could reasonably find that Hospira had not, in fact, made its final decision to demote Malin before she requested FMLA leave.

At the end of its decision, the Seventh Circuit expressed “disappointment with Hospira’s approach to summary judgment practice, which is such a common part of modern federal civil litigation and especially employment discrimination cases.”  The court noted that “Hospira’s presentation of the evidence amounted to nothing more than selectively quoting deposition language it likes and ignoring deposition language it does not like.”  The court cautioned defendants who engage in these types of “shenanigans” that they could face sanctions for unreasonably prolonging cases with these meritless motions.

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