Key Points

  • The Maine Supreme Judicial Court affirmed a jury verdict for Town and Country Federal Credit Union on Jennifer Owen's disability discrimination and retaliation claims.
  • The court held the trial court did not abuse its discretion in keeping an attorney-fee sanction for Owen's discovery violations after declining to give an adverse-inference instruction for spoliation, because the fees rested on misconduct separate from spoliation.
  • The court held that "me too" testimony from two fired co-workers, one whose leave was for pregnancy and one whose leave was for a sick child, was properly excluded as irrelevant to a cancer-related disability claim and, alternatively, under Rule 403.
  • Comparator evidence about the two co-workers was properly excluded because they were treated the same as Owen, not differently.
  • The credit union did not open the door to the excluded evidence through testimony about its policies or through exhibits Owen declined to have redacted.

Maine's highest court on Tuesday upheld an order requiring a former credit union employee to pay her ex-employer's legal fees for her conduct in discovery, the pretrial exchange of evidence, even though the trial judge later concluded the evidence did not show she had wrongfully destroyed text messages.

The Maine Supreme Judicial Court affirmed a jury verdict for Town and Country Federal Credit Union, which Jennifer L. Owen had sued under the Maine Human Rights Act. Owen alleged she was fired because of a "history of cancer and the perceived recurrence of the cancer." Justice Douglas wrote for the five-member panel, and no justice wrote separately.

The decision treats a fee sanction for evasive discovery answers and a missed court-ordered deadline as standing on its own, apart from any finding of spoliation, the destruction or loss of evidence. The court also held that the trial judge properly kept two other fired employees from telling the jury about their own terminations, drawing on federal case law that separates "me too" evidence from comparator evidence.

According to the opinion, the credit union hired Owen as a teller in 2012, and co-workers held a bake sale and a yard sale to help with her bills when she was treated for breast cancer the next year. After a 2015 promotion to assistant branch manager, the court recounted, she left the cash vault open overnight and watched Netflix during work time. She was moved to a loan-processing job at the Scarborough branch.

Supervisors fired Owen on October 25, 2018, the day of a doctor's appointment about a growth she feared was cancerous. The opinion says they did not know about the appointment.

After Owen sued in 2020, the credit union sought her communications with Jessica Dunton Walker, a fired co-worker whom Owen's lawyer also represented in a separate claim. Owen said she had no responsive documents and testified that a thorough search would be "an astronomical task." A judge ordered her to turn over her phone by June 18, 2021. She did so on July 22, the day after the credit union moved for sanctions.

The extraction produced hundreds of texts with Walker, but none from before January 11, 2020, four days after Owen received her right-to-sue letter from the Maine Human Rights Commission. Phone records produced after discovery closed showed Owen had spoken with Walker around the time of both women's depositions.

In February 2022, the Business and Consumer Docket court found that Owen had led the credit union on "an intentionally misleading, time consuming, and costly wild goose chase" and that "Owen acted in bad faith." The judge ordered her to pay the credit union's fees and costs and said jurors would be told they could infer the lost messages hurt her case, an adverse-inference instruction, if the credit union laid a foundation at trial.

At the close of the five-day trial in October 2023, the judge reversed course on that instruction. "I don't think that there's any evidence showing that [Owen] knew of the documents' potential relevance to the claim," the judge said. The jury returned a unanimous verdict for the credit union on all counts.

The judge then refused Owen's request to drop the fee award. "There was another whole piece of the discovery dispute related to how hard it was to get emails and texts," the judge said, adding, "I'm going to let that stand."

On appeal, Owen argued that the sanction rested principally, if not solely, on the spoliation finding the judge had abandoned. Justice Douglas wrote that the credit union "demonstrated numerous instances in which Owen's deposition testimony was contradictory, obstructionist, and evasive." The court noted that the credit union waited nearly nine months for its first text message, and it held that the trial judge "acted well within the bounds of its discretion."

The court then turned to Walker and Courtney McNulty, another former employee. Walker would have testified that she was fired as she was about to begin maternity leave, and McNulty that she was fired shortly after asking for time off to care for a sick child. Owen argued that the three women "all worked at the Scarborough branch, all had medical issues requiring potential medical leave, and all were fired by St. Pierre," the credit union's human resources manager.

The court said McNulty was not alleged to have a disability, that Walker's leave was for pregnancy, and that the human resources manager "would be involved in any termination process." Justice Douglas wrote that "[a] handful of employees who testify about their terminations is insufficient to show a practice of discrimination if the circumstances surrounding their terminations were too dissimilar from the circumstances surrounding the plaintiff's termination."

Even if the testimony had some relevance, the court said, letting the two women describe their own claims "would likely confuse the jury, prejudice Town and Country, and prolong what was already a five-day jury trial."

The comparator theory, which asks whether similar workers outside the protected group were treated better, failed for a simpler reason. Walker, McNulty and Owen may have shared a need for leave, the court wrote, but "all three were treated the same—not differently."

The court also held that the credit union did not "open the door" to the excluded evidence by having its human resources manager testify about support for employees with disabilities or by reading its anti-discrimination policy verbatim. "It is unclear how the recitation of boilerplate language from the policy would confuse or mislead a jury," Justice Douglas wrote.

Owen was represented by Guy D. Loranger of the Law Office of Guy D. Loranger. Peter A. Hale of Pierce Atwood LLP argued for the credit union.

The case was argued in September 2024. The court's entry reads "Judgment affirmed," leaving in place both the defense verdict and the order that Owen pay the credit union's fees and costs, an amount the opinion does not state.