The full case caption appears at the
end of this opinion. Barbara Gordan appeals from a judgment entered in theSuperior Court (Cumberland County, Delahanty, J.) in favor of Orman F.Cummings, Orman F. Cummings III, and Crest Enterprises, Inc. Mrs.Gordan asserts that the court erred when it granted a judgment as a matterof law in favor of the defendants on her Maine Human Rights Act (MHRA)claim, her intentional infliction of emotional distress claim, and her tortiousinterference claim. We vacate the court’s disposition of the MHRA claim,but otherwise affirm. I. FACTS In 1993, Barbara (Betty) Gordan, her husband, Don, and theirson, Rick, owned Gordan’s Outboards, Inc., a retail motor boat dealer. Bettymanaged the operations at Gordan’s, and she described the marina as “herhome, her life.” During the recession of the early 1990′s, the familydecided to merge its business with another family-operated business thatsold motor boats, Crest Enterprises. Orman (Bill) Cummings and his son,Orman (Rick) Cummings III, owned Crest Enterprises, a closely heldcorporation that owned and operated Sebago Trading Post and GoodallMarine. The two sons, Rick Gordan and Rick Cummings, organized themerger and designed the new company’s business plan. Crest, Inc. andGordan’s, Inc. transferred their assets to a new corporation named GG&F,Inc. In return, Crest and Gordan’s each received fifty percent of GG&F’scapital stock. GG&F had operations in Windham and Raymond, Maine. Betty Gordan opposed the merger because she did not want toretire; her husband and son, nevertheless, persuaded her to agree to themerger. When the merger occurred, Bill Cummings became president andCEO of GG&F. Betty Gordan became sales manager and secretary to theBoard of Directors; Betty, however, was not a member of the Board. After the merger, tensions were high. Betty and Bill wouldengage in a yelling match at least once a week. Don Gordan testified thatBill did not like Betty and that it was “a personality fight between him andmy wife.” Bill also yelled at his son. Betty, meanwhile, would frequentlyengage in screaming matches with her son. Betty and Rick Gordan wouldargue because Rick would insist that his mother let him run the business. Betty, nonetheless, wanted Rick to do things as she ordered and she wantedhim to do them immediately. Two or three weeks after the merger, Betty opened theRaymond marina earlier than scheduled and left the Windham location. Bill,Rick and Rick decided to sell the Raymond Marina, even though Betty wasoperating from that location for GG&F. Bill sent Betty a letter telling herthat GG&F was terminating her sales position and that she had until August7th to remove her belongings. When she had not removed her belongings bySeptember 5th, they entered the Raymond Marina when Betty was notworking and changed the locks. When Betty learned of the lockout, shebecame a self-described “maniac.” She telephoned Bill and kept tellinghim, “call your attorney, call your attorney.” Betty filed suit against Bill and others (but not her formeremployer, GG&F) alleging age and gender discrimination. Conflictingevidence was presented at trial regarding the alleged discrimination. At theclose of plaintiff’s case, defense counsel moved for a judgment as a matter oflaw on the following claims: (1) MHRA; (2) intentional infliction of emotionaldistress; and (3) tortious interference with advantageous relationships. Thetrial court granted those motions. The trial court dismissed the MHRA counts against RickCummings and Crest because the evidence did not support such a claim.
[FOOTNOTE 1] The court also granted a judgment as a matter of law in favor of Bill on thediscrimination claim because it followed federal precedent and interpreted5 M.R.S.A. � 4553(4) (1989 & Supp. 1999) to exclude individual supervisorliability. The court ruled that if Betty was entitled to recover for herintentional infliction of emotional distress claim, such recovery wouldproperly be addressed by the workers’ compensation statute. The courtconcluded that Betty did not present any evidence of fraudulent orintimidating conduct that would interfere with any relationship she had. Betty’s fraud and negligent misrepresentation claims proceeded to a jury. The jury found in favor of the Cummingses and Crest. II. STANDARD OF REVIEW Pursuant to M.R. Civ. P. 50(a), the court may grant a judgmentas a matter of law “if the court determines that, viewing the evidence and allreasonable inferences therefrom most favorably to the party opposing themotion, a jury could not reasonably find for that party on an issue that . . . isan essential element of the claim.” M.R. Civ. P. 50(a); see also Townsend v.Chute Chem. Co., 1997 ME 46, � 8, 691 A.2d 199, 202. To survive adefendant’s motion for a judgment as a matter of law, the “plaintiff mustestablish a prima facie case for each element of her cause of action.”Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, � 9, 711 A.2d 842, 845(internal citations omitted). “A judgment as a matter of law in a defendant’sfavor is proper when any jury verdict for the plaintiff would be based onconjecture or speculation.” Id. III. THE MAINE HUMAN RIGHTS ACT Betty asserts that the trial court erred when it determinedthat the definition of employer under the MHRA did not include supervisorsacting directly or indirectly for their employer. The interpretation of”employer” pursuant to 5 M.R.S.A. � 4553(4) is one of first impression forthis Court. We must determine whether the term “employer” as defined bythe MHRA includes a supervisor and, therefore, allows a party with a causeof action pursuant to 5 M.R.S.A. � 4172 (1989 & Supp. 1999) to sue theemployee’s supervisor in his or her individual capacity. When interpreting a statute, we try to effectuate the statute’splain meaning. See Estate of Spear, 1997 ME 15, � 7, 689 A.2d 590, 591. We will only look beyond the plain meaning of a statute to avoid absurd,illogical or inconsistent interpretations. See Darling’s v. Ford Motor Co.,1998 ME 232, � 5, 719 A.2d 111, 114. We attempt to realize the statute’slegislative intent and in doing so, will consider the section of the statute tobe interpreted within the context of its statutory scheme. See City ofRockland v. Doud, 1998 ME 238, � 5, 721 A.2d 981, 982. The Cummingses argue that the Court should rely on federalprecedent when interpreting the MHRA. We have employed federalprecedent as an aid when interpreting issues of first impression concerningthe MHRA. See Finnemore v. Bangor Hydro-Electric Co., 645 A.2d 15, 17(Me. 1994) (stating that “the use of federal precedent as an aid ininterpreting Maine’s anti-discrimination provisions is appropriate” becausethe issue is one of first impression). The reliance on federal precedent,however, is only appropriate when the purpose and objective of the Maineand federal statutes are the same. See Percy v. Allen, 449 A.2d 337, 342-43(Me. 1982). In this instance, we decline to rely on the precedent of theCourts of Appeals because the MHRA does not share an identical purposewith the federal statute and because the Courts of Appeals havemisinterpreted the agent clause in Title VII to exclude individual supervisorliability while invoking the doctrine of respondeat superior.
[FOOTNOTE 2] The MHRA differs from Title VII in three ways. First, theMHRA has a broader definition of employer than Title VII. The MHRAdefines an employer as the following: 4. Employer. “Employer” includes any person in this State employing any number of employees, whatever the place of employment of the employees, and any person outside this State employing any number of employees whose usual place of employment is in this State; any person acting in the interest of any employer, directly or indirectly; and labor organizations, whether or not organized on a religious, fraternal or sectarian basis, with respect to their employment of employees. 5 M.R.S.A. � 4553(4) (1989 & Supp. 1999) (emphasis added). Title VII,however, defines employer as “a person engaged in an industry affectingcommerce who has fifteen or more employees . . . and any agent thereof.”42 U.S.C.A. � 2000e(b) (1994). The MHRA definition does not shield smallbusinesses from liability, while Title VII limits liability to employers withfifteen or more employees. Compare 5 M.R.S.A. � 4553(4) with 42 U.S.C.A.� 2000e(b). Second, unlike Title VII, the MHRA has already invokedindividual liability by making it illegal for individuals to aid and abetdiscrimination. See 5 M.R.S.A. � 4553(10)(D) (1989 & Supp. 1999). Third,the MHRA provides for remedies against individual supervisors. See5 M.R.S.A. � 4613(B)(7) (1989 & Supp. 1999) (providing for civil penaltiesto be exacted on all respondents, except those employing more thanfourteen employees). Thus, we decline to rely on federal precedent becausethe MHRA has a broader application than Title VII. See Percy, 449 A.2d at342-43. We recognize that the term “agent” and the definition “anyperson acting in the interest of any employer, directly or indirectly”essentially define the same person; nevertheless, we disagree with theCourts of Appeals’ interpretation of that language and refuse to follow it. Amajority of the Courts of Appeals have reasoned that the Title VII definitionof employer precludes individual liability. See Bales v. Wal-Mart Stores, Inc. 143 F.3d 1103, 1111 (8th Cir. 1998) (opining that Title VII definition ofemployer bars individual liability); Wathen v. General Elec. Co., 115 F.3d400, 405 (6th Cir. 1997); Sheridan v. E.I. Dupont de Nemours & Co., 100F.3d 1061, 1078 (3d Cir. 1996); Geier v. Medtronic, Inc., 99 F.3d 238, 244(7th Cir. 1996); Haynes v. Williams, 88 F.3d 898, 901 (10th Cir. 1996);Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995); Gary v. Long, 59F.3d 1391, 1399 (D.C. Cir. 1995); Greenlaw v. Garrett, 59 F.3d 994, 1001(9th Cir. 1995); Cross v. Alabama, 49 F.3d 1490, 1504 (11th Cir. 1995);Grant v. Lone Star Co., 21 F.3d 649, 653 (5th Cir. 1994). These courts find that the inclusion of the language “. . . andany agent thereof,” in 42 U.S.C.A. � 2000e(b), was for the purpose ofimposing respondeat superior liability on the employer. See, e.g., Bales, 143F.3d at 1111; Wathen, 115 F.3d at 406; Grant, 21 F.3d at 653. The courtshave explained that Congress could not have intended to burden individualsupervisors with Title VII liability because it exempted small businessesfrom liability. See Wathen, 115 F.3d at 406. The courts also interpreted theremedies available under Title VII-back-pay, reinstatement, compensatoryand punitive damages-to preclude supervisor liability because the remediesare ones that should be implemented by an employer. See Wathen, 115 F.3dat 406 (holding that Congress calibrated these damages for employers, notindividuals); Tomka, 66 F.3d at 1315 (holding same, but noting that it hadpreviously held an individual and employer joint and severally liable for back-pay). The First Circuit has not yet adjudicated whether Title VIIprecludes individual supervisor liability. See Morrison v. Carleton WoolenMills, Inc., 108 F.3d 429, 445 (1st Cir. 1997) (declining to decide whetherthe MHRA or Title VII allow for individual liability). One district court in theFirst Circuit, however, has rejected the majority view. Compare Wyss v.General Dynamics Corp., 24 F.Supp.2d 202, 208 (D.R.I. 1998) (findingindividual liability for supervisor under Title VII’s definition of employer)with Chatman v. Gentle Dental Ctr., 973 F.Supp. 228, 239 (D.Mass. 1997)(determining that a supervisor is not amenable to individual liabilitypursuant to Title VII); Pineda v. Almacenes Pitusa, Inc., 982 F.Supp. 88,92­p;93 (D.P.R. 1997) (holding same); Quiron v. L.N. Violette Co., Inc., 897F. Supp. 18, 21 (D.Me. 1995) (holding same). We decline to follow the Courts of Appeals interpretation ofthe “agent clause” of Title VII because the plain language of the MHRAallows for supervisor liability; the doctrine of respondeat superior does notalleviate individual employee liability; and the available remedies do notdiscount individual MHRA liability. A. Plain Language The plain language of the MHRA manifests that an individualsupervisor is considered an employer. See 5 M.R.S.A. � 4553(4). Thestatute lists three types of potential employers and separates each type by asemi­p;colon. See Spear, 1997 ME 15, �7, 689 A.2d at 591 (noting that weinterpret the plain meaning of the statute). The first type of employer is theentity, be it a sole proprietorship, partnership, corporation or the like, thatemploys at least one employee within the state. See 5 M.R.S.A. � 4553(4). The third employer is a labor organization. See 5 M.R.S.A. � 4553(4). The second type of employer is “any person acting in theinterest of any employer directly or indirectly.” The plain language of thisclause includes individual liability because it describes any person. See5 M.R.S.A. � 4553(4); see also Spear, 1997 ME 15, �7, 689 A.2d at 591. Itwould be illogical to interpret this definition as precluding supervisorliability because such an analysis would effectively erase the “any person”language from the statute. See Darling’s v. Ford Motor Co., 1998 ME 232,� 5, 719 A.2d 111, 114 (stating that the Court avoids illogical andinconsistent interpretations). The redrafting of a statute is a job that is bestleft to the Legislature. A plain reading of the statute would include liability forsupervisors, consultants, independent contractors and anyone else who actsin the interest of the employer. Such a broad definition of the clauseappropriately addresses the statute’s objective. See 5 M.R.S.A. � 4552(1989 & Supp. 1999) (stating that the policy of the act is “to protect thepublic health, safety, and welfare . . .” and to “prevent discrimination inemployment . . . on account of race, color, sex, physical or mental handicap,religion, ancestry or national origin . . .”); accord DiCentes v. Michaud, 1998ME 227, � 10, 719 A.2d 509, 513 (commenting on the broad remedialscope of MHRA); Dunn & Theobald, Inc. v. Cohen, 402 A.2d 603, 605 (Me.1979) (stating the well-settled principle of construing remedial statutesbroadly). The purpose of the statute is to discourage discrimination, and thebest way to achieve that purpose is to hold the actual wrongdoer liable forhis or her discriminatory actions. B. Respondeat Superior The Cummingses urge us to conclude that this clauseindicates respondeat superior liability but does not permit an individualsupervisor to be held liable. Such a construction is inconsistent with thedoctrine of respondeat superior. The MHRA invokes the doctrine ofrespondeat superior because it allows a victim of discrimination to sue boththe employer and the employer’s agent for the agent’s discrimination. See5 M.R.S.A. � 4553(4); see also 5 M.R.S.A. � 4553(10)(E) (stating thatemployer liability does not hinge on whether the agent’s discriminatory actswere authorized or subsequently ratified). In determining how the doctrineof respondeat superior affects the statute, we apply the common lawprinciples of respondeat superior. See Tremblay v. Murphy, 111 Me. 38,53­p;54 (1913) (currently published sub nom. Pelletier v. O’Connell, 88A. 55, 63) (holding that when the statute is silent, common law principlesmust be applied). Respondeat superior is a doctrine born out of agencyprinciples. See Burlington Industries, Inc v. Ellerth, 524 U.S. 742, 755-56,118 S.Ct. 2257, 2265-66, (1998). Section 219(1) of the Restatement ofAgency states that “[a] master is subject to liability for the torts of hisservants committed while acting in the scope of their employment.” Respondeat superior is also a doctrine of joint and several liability, wherethe plaintiff may sue both the employer and the employee for the wrongfulacts of the employee. See restatement (second) of agency � 359 C (1958)(stating that “principal and agent can be joined in one action for a wrongresulting from the tortious conduct of an agent . . . and a judgment can issueagainst each”). Historically in Maine, both an employer and employee wereliable for the harmful acts of the employee, but the plaintiff had to choosewhich one to sue. See Sinclair v. Gannett, 148 Me. 229, 234, 91 A.2d 551,553 (1952) (noting that plaintiff could bring suit against either master orservant for servant’s negligence, but not both); Hobbs v. Hurley, 104 A. 815,818 (Me. 1918) (holding same). M.R. Civ. P. 20 has abrogated the Sinclairrule and allows a plaintiff to bring suit against both the employer andemployee in a suit for the tortious acts of the employee. See M.R. Civ. P. 20;Ferris v. County of Kennebec, 44 F.Supp.2d 62, 65 (D.Me. 1999) (noting thatM.R. Civ. P. 20 abrogated the rule of Sinclair v. Gannett). The Supreme Court has applied these agency and tortprinciples to a supervisor’s discriminatory acts. See Burlington, 524 U.S. at756. The Supreme Court held, in Burlington, that employers are vicariouslyliable for the discrimination of their supervisory employees because thesupervisors are in a special position, unlike regular co-workers, where thesupervisors could make deliberate economic decisions that affect theemployees under his or her control, such as discharge, demotion, orundesirable reassignment. See id. at 762-65. The Court labelled thesedecisions “tangible employment actions.” See id. The Court also limitedthe employer’s liability by allowing the employer to assert an affirmativedefense when the supervisor did not take any tangible employment action,but merely created a hostile work environment. See id. at 765. To assertthe affirmative defense, the employer must show that (1) the employerexercised reasonable care to prevent and correct the sexually harassingbehavior; and (2) that the employee unreasonably failed to take advantage ofthe preventive measures offered by the employer. See id. Burlington is instructive for two reasons. First, by applyingagency principles, it shows that the full concept of respondeat superiorshould apply in the case at bar. Second, it demonstrates the need forsupervisor liability because it limits employer liability. It does not makesense to allow supervisors-people who are in a unique position to exacteconomic consequences on their employees by their discriminatory acts-toescape liability. Our holding today does not eviscerate employer liability; itrecognizes the doctrine of respondeat superior and fulfills the broadremedial purpose of the statute by holding personally liable supervisors thatdiscriminate. C. Remedies and Damages The Cummingses next argue that the MHRA does not includesupervisor liability because the damages and remedies provided in thestatute are those that only an employer could implement. We disagree. Theplain language of 5 M.R.S.A. � 4613 states that civil penalties are anappropriate remedy for unlawful discrimination except for “respondentswith more than fourteen employees.” 5 M.R.S.A. � 4613(2)(B)(7) (1989 &Supp. 1999).
[FOOTNOTE 3] This language does not prohibit the court from imposing civilpenalties on individual supervisors. See id. If the Legislature wanted tolimit liability to the business entity only, then they would have used the wordcorporation or business instead of respondent. The sliding cap of liability inaccord with the number of offenses provided in subparagraph B(7) does notexclude individuals from such liability. See id. It is possible that asupervisor may discriminate more than once and the statute must addressremedies for employers and individuals alike. The difference of the remedies available in subparagraph 8 ofsection 4613(B) compared to subparagraph 7 manifest that the MHRA wasintended to apply to individual supervisors. See 5 M.R.S.A. � 4613(B). Subparagraph 7 imposes civil penalties upon respondents-be it employingentities; the supervisory employee; or the labor organization-but precludescivil penalties for respondents who employ more than fourteen employees. See 5 M.R.S.A. � 4613(B)(7). Only employing entities employ; an individualsupervisor does not employ. In contrast, subparagraph 8(e) allows thevictim to recover compensatory damages only from employing entities withmore than fourteen employees. See 5 M.R.S.A. � 4613(B)(8)(e).
[FOOTNOTE 4] Subparagraph 8 further supports the argument for supervisorliability because B(8)(i) states: “punitive damages may not be included in ajudgment or award against a governmental entity. . . or against an employeeof a governmental entity based on a claim that arises out of an act oromission occurring within the course or scope of that employee’semployment.” 5 M.R.S.A. � 4613 (B)(8)(i) (emphasis added). If the statutedid not hold individual employees liable, then this clause exemptinggovernment employees from liability would be unnecessary. In sum, the plain language of the MHRA provides forindividual supervisor liability and the policy behind the statute warrantsindividual supervisor liability. Accordingly, we vacate the decision of thetrial court and remand for proceedings consistent with this opinion. IV. WORKERS’ COMPENSATION Betty argues that the trial court erred when it removed herintentional infliction of emotional distress (IIED) claim from the jurybecause her claim arose from a relationship with Bill Cummings and Bill wasnot strictly her employer but a “joint venturer” as well. Bill asserts thatBetty based her IIED claim solely upon workplace conduct and, therefore,the Workers’ Compensation Act provides her exclusive remedy. Bill iscorrect in his assertions. The trial court properly granted a judgment as a matter of lawbecause Betty’s IIED claim was barred by the Workers’ Compensation Act. See 39-A M.R.S.A. � 104 (Supp. 1999); Li v. C. N. Brown Co., 645 A.2d 606,609 (Me. 1994) (holding that the exclusivity and immunity provisions of theWorkers’ Compensation Act bar an employee from pursuing civil actionsagainst an employer for the employer’s intentional torts); Reed v. AvianFarms, Inc., 941 F.Supp 10, 13­p;14 (D.Me. 1996) (concluding that the MaineWorkers’ Compensation Act precludes IIED claims). The Workers’Compensation Act bars all common law claims that arise out of work-relatedinjuries in the course of employment.
[FOOTNOTE 5] See Li, 645 A.2d at 608. But seeCaldwell v. Federal Express Corp., 908 F. Supp. 29, 33 (D.Me. 1995)(allowing IIED claim to proceed against employer because the tortiousconduct did not arise while the plaintiff was employed by employer). Bettydid not present any evidence to establish that her IIED claim arose from anon-work-related event. Hence, the trial court properly directed a verdictfor Bill because the law precludes Betty from bringing an IIED claim in civilcourt; she must seek redress pursuant to the workers’ compensationstatute. V. TORTIOUS INTERFERENCE Betty asserts that she presented sufficient evidence toestablish that the Cummingses and Crest interfered with her relationshipwith GG&F. To succeed on a tortious interference claim, Betty needed toestablish (1) “the existence of a valid contract or prospective economicadvantage;” (2) “interference with that contract or advantage through fraudor intimidation;” and (3) “damages proximately caused by the interference.”James v. MacDonald, 1998 ME 148, � 7, 712 A.2d 1054, 1057. Betty failed to establish any interference with her relationshipwith GG&F that constituted fraud or intimidation. See id. The trial court,therefore, properly granted a judgment as a matter of law because Bettyfailed to establish a prima facie case for each element of her cause of action. See Champagne, �9, 711 A.2d at 845 (noting that the “plaintiff mustestablish a prima facie case for each element of her cause of action” tosurvive a judgment as a matter of law). The entry is: Judgment vacated in part and affirmed inpart. Remand for further proceedingsconsistent with this opinion. CLIFFORD, J., with whom SAUFLEY, J., joins, dissenting I respectfully dissent. In my view it is unnecessary for thecourt to construe the provisions of the Maine Human Rights Act todetermine if the definition of “employer” includes individual workers orsupervisors. This is so because the evidence supporting the claim of BarbaraGordan that she is the victim of age and gender discrimination isinsufficient, and the defendants were entitled to a judgment as a matter oflaw. Gordan claims to have been treated differently because of hergender and her age. See Maine Human Rights Comm’n v. City of Auburn,408 A.2d 1253, 1263 (citing McDonnell Douglas Corp. v. Green, 411 U.S.792 (1973)). The evidence that Gordan presents, however, is inadequate. The evidence was that Bill Cummings yelled at other employees, male andfemale, young and old, including his own son. There was little evidence thatfemale employees were treated differently than male employees. Theevidence was insufficient to support a conclusion that it was her gender orher age, as opposed to dissatisfaction with her job performance, that led toGordan’s discharge. Accordingly, there has been no demonstrated violationof the Maine Human Rights Act. I would affirm the judgment of the SuperiorCourt. SAUFLEY, J., dissenting. I concur in part and dissent in part. Although I agree withthe analysis set out in Justice Clifford’s dissent, concluding that the facts ofthis particular case are insufficient to support Gordan’s Maine Human RightsAct claim against Cummings individually, and thus join his dissent, I writeseparately to address the Court’s holding regarding individual liability underthe MHRA. Accordingly, I respectfully dissent from section III of the Court’sopinion addressing the meaning of “employer” under the MHRA in whichthe Court concludes that a person acting in the interest of the employer maybe held individually liable. The Court has thoughtfully considered the meaning of theterm “employer” in the context of the Maine law, and has declined to followstate and federal precedent regarding analogous federal law, relying in parton differences in the wording of the Maine statute. Notwithstanding thosedifferences, however, I would conclude there are several compelling reasonswhy the language of the MHRA should not be interpreted to allow a cause ofaction against employees in their individual capacity. First, an examination of analogous state and federal case law,in both the employment discrimination context and in related contexts,reinforces the conclusion that liability does not attach to individuals underthe Act. Second, by interpreting the statute as it has, the Court has failed togive effect to the Act’s remedial purpose and has called into question theliability of an employer under concepts of respondeat superior. Finally, theAct’s penalty scheme establishes that the Legislature did not intend that theAct extend to individuals. A. Analogous State and Federal Law Although the Court acknowledges our practice of looking tofederal precedent for guidance in the MHRA context, see Finnemore v.Bangor Hydro-Elec. Co., 645 A.2d 15, 17 (Me. 1994), it neverthelessdeclines to follow well-established federal precedent on point. The Courtdeparts from the analysis of a majority of federal circuit courts in great partbecause of the distinction in the language at issue in Title VII and theMHRA. Specifically, Title VII defines an employer to include “any agent” ofthe employer, 42 U.S.C.A. � 2000e(b) (1994), while the Maine Act definesan employer to include “any person acting in the interest of any employer,”5 M.R.S.A. � 4553 (1989 & Supp. 1999). Notwithstanding the semanticdifference, the phrases identify the same person. The Restatement definesan agent as “one who acts on behalf of the principal and only for his benefit.” Restatement (Second) of Agency � 387 cmt. a (1958). Nonetheless, eventhough it agrees, as it must, that the agency language found in both Acts”define[s] the same person,”
[FOOTNOTE 6] the Court refuses to follow federal precedentto interpret the Maine provision. As the Court recognizes, a significant majority of federalcircuit courts have concluded that the “agency” provision of Title VII holdsan employer liable for the discriminatory acts of its employees and does notprovide for individual liability.
[FOOTNOTE 7] The Court parts with federal precedentbecause it concludes that the federal courts have followed this interpretationbased on Title VII’s small business exemption, which does not exist in theMHRA. The Court’s review of Title VII cases, however, does notreveal the whole picture. Although several federal courts place significantweight on the small business exception in concluding that Congress neverintended to extend liability to individuals, other federal courts placesignificant weight on Title VII’s penalty scheme and the policy ramificationsof extending liability. See, e.g., Sheridan v. E.I. Dupont de Nemours & Co.,100 F.3d 1061, 1077 (3d Cir. 1996); Tomka v. Seiler Corp., 66 F.3d 1295,1313-16 (2d Cir. 1995). In Tomka, the Second Circuit noted that “thepractical implications of agent liability would create potential inequities thatCongress could not have intended.” Tomka, 66 F.3d at 1315. The courtconcluded that individual liability was “directly in conflict with Title VII’sstatutory scheme and remedial provisions.” Id. at 1316. Additionally, theThird Circuit has announced that its “independent examination of the issue”demonstrates that Congress never intended individual liability in the TitleVII context. Sheridan, 100 F.3d at 1077. In reaching this conclusion, thecourt noted that the “most significant . . . fact [is] that when Congressamended the statute in 1991 to provide a detailed sliding scale ofdamages . . . it made no reference as to the amount of damages, if any, thatwould be payable by individuals.” Id. Although the MHRA does not include a small businessexception, the policy concerns articulated in Tomka, Birkbeck, and otherfederal cases are nevertheless implicated in the Maine Act. Extendingliability to individual supervisors, consultants, and co-workers may thwartthe remedial goals of the Act. Moreover, the statutory scheme in general,and the penalty provisions in particular, demonstrate that the Legislaturenever intended liability to extend to individual supervisors or co-workers.
[FOOTNOTE 8] Iwould, therefore, follow the well-reasoned decisions of the majority offederal courts, which refuse to extend liability to individuals in the Title VIIcontext.
[FOOTNOTE 9] B. Broad Remedial Purposes of the Act In enacting the Maine Human Rights Act, the Legislatureannounced that it was attempting to “protect the public health, safety andwelfare” and to ensure that “corrective measures may, where possible, bepromptly recommended and implemented.” 5 M.R.S.A. � 4552 (1989 &Supp. 1999). It is a well-settled principle of statutory construction thatcourts will interpret remedial statutes broadly in an effort to give effect totheir remedial purposes. See Dunn & Theobald, Inc. v. Cohen, 402 A.2d603, 605 (Me. 1979); Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S.557, 562 (1987). Additionally, we have held that “[t]erms in a statute mustbe construed in light of the subject matter, purpose of the statute, and theconsequences of a particular interpretation.” Church v. McKee, 387 A.2d754, 756 (Me. 1978), quoted in Mullen v. Liberty Mut. Ins. Co., 589 A.2d1275, 1278 (Me. 1991). If the specific language at issue is understood to make thosepersons acting in the interests of the employer individually liable for theiracts in the workplace, rather than to make the employer responsible for alldiscriminatory acts of those persons acting on its behalf, the remedialpurposes of the Act will be significantly frustrated. Making individualsupervisors, consultants, and co-workers personally liable for acts ofdiscrimination may pit employers and employees against one another in aneffort to shift responsibility. Discrimination claims will be less likely tofocus on the existence and remediation of the discriminatory behavior, andwill be more likely to devolve into a dispute focused on whether theemployer or the individual should be held responsible for the violation. Ifemployers can avoid liability by pointing to the unauthorized bad acts of asupervising employee, there will be reduced motivation for employers toimplement thorough and effective policies prohibiting discrimination. Instead, employers may find that they are better served by institutingpolicies that subtly shield them from actual knowledge of the discriminatoryacts of their agents. The United States Supreme Court recently recognizedthis problem in Kolstad v. American Dental Association, 527 U.S. 526, 119 S.Ct. 2118 (1999), where the Court noted that a lack of respondeat superiorliability may “[d]issuad[e] employers from implementing programs orpolicies to prevent discrimination in the workplace.” Id. at —, 119 S. Ct. at2129. Here, the Court has attempted to minimize this concern bystating, without persuasive authority, that the employer would remainresponsible for any acts of its supervisory staff under common law conceptsof respondeat superior or agency. To support its contention that the “fullconcept of respondeat superior should apply in the case at bar,” the Courtcites the MHRA’s “agency” language and the recent United States SupremeCourt case Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). In relying on the “agency” language of section 4553(4), theCourt appears to conclude that the phrase “any person acting in theinterests of the employer” serves a dual purpose. According to the Court, itmust do two distinctly different things: first, it makes a person acting in theemployer’s interest individually liable for discriminatory acts, and second, itmakes the employer liable under agency principles for any of that person’sactions. Thus, the Court relies on the same language both to importcommon law principles of agency and create individual liability. This singlephrase, however, cannot be used to support both individual liability andagency liability. Because the Court concludes that the plain language of thesection creates individual liability, it has eliminated the efficacy of thesection for creating agency liability. The Court’s other stated basis for concluding that broadprinciples of agency are applicable under the MHRA, notwithstanding itselimination of the statutory basis for agency liability, is its reliance on theSupreme Court’s analysis in Burlington Industries. In relying on Burlington,the Court makes the very point I attempt to make-if agency principles areexpressly incorporated into the Act, the employer will be liable for the actsof its supervisors. In Burlington, the Supreme Court relied on language inTitle VII that will no longer be available under the MHRA because of theCourt’s opinion today. The Burlington Court articulated the basis for importation ofagency principles as follows: “We turn to principles of agency law, for theterm ‘employer’ is defined under Title VII to include ‘agents.’ In expressterms, Congress has directed federal courts to interpret Title VII based onagency principles.” Id. at 754 (emphasis added) (citations omitted). Inother words, the Supreme Court used common law principles of agencybecause it was directed to do so by Congress. In contrast, the Court hastoday interpreted similar language in the MHRA to establish individualliability, rather than to import common law principles of agency. Put anotherway, the Court has interpreted the phrase “persons acting in the interest ofthe employer” to create individual liability, thereby eliminating the statutorybasis for utilizing broad agency principles in MHRA claims. Thus, itsreliance on Burlington is without foundation. Now bereft of statutory language making the employer liablefor the discriminatory acts of its agents, claimants will be required to resortto pure common law agency principles in order to hold an employerresponsible for its agents’ conduct. Under the common law, an employer isonly responsible for the tortious actions of his employees undertaken withinthe course and scope of the employment. See Restatement (Second) ofAgency � 219 (1958). The MHRA is not a legislative expression of tortliability. Rather, it is intended to create a broad new source of remedies forthose “who may otherwise be without a cause of action against her employerat common law or in contract.” DiCentes v. Michaud, 1998 ME 227, � 10,719 A.2d 509, 513. To that end, the MHRA penalizes or corrects wrongfulactions that may not constitute tortious activity, or may have beencommitted outside the scope of employment. In many instances, conductprohibited under the Act would not constitute a tort or actionable wrong atcommon law.
[FOOTNOTE 10] Thus, without the express importation of common lawagency principles into the Act for purposes of addressing wrongful conductunder the Act, an employer may not be liable for the separate conduct of anemployee which, although prohibited by the Act, is not tortious. Althoughthe employer will continue to be responsible for those actions of its agentsthat are tortious, or are simultaneously the actions of the employer (i.e.,firings, demotions, reductions in pay), the same employer may not be liablefor the actions of its employees of which it is unaware or has expresslydisapproved (i.e., racial slurs in the office, more subtle forms ofdiscrimination). A review of the federal courts’ struggles with respondeatsuperior claims brought under Title IX, which contains no “agency”language, demonstrates clearly the difficulties inherent in enforcing aremedial statute that does not contain explicit statutory language creatingemployer liability for the acts of other persons.
[FOOTNOTE 11] The Supreme Courtrecently addressed this issue in Gebser v. Lago Vista Independent SchoolDistrict, 524 U.S. 274 (1998), where it compared Title IX to Title VII. Seeid. at 287-88. Gebser presented the opposite of the question before ustoday-namely, whether an employer could be held liable for thediscriminatory behavior of its agent. Discussing the breadth of theemployer’s liability under Title IX, the Court considered the application ofthe common law principle of respondeat superior as well as the differencesbetween Title VII and Title IX. See id. The Court ultimately determinedthat, in the absence of such an “agency” provision in the Act, the employeravoids liability so long as it lacked actual or constructive knowledge of theagent’s actions.
[FOOTNOTE 12] In contrast to Title IX cases, the Supreme Court’s Title VIIdecisions rely on the agency language found in Title VII’s definition ofemployer to provide respondeat superior liability. See Burlington, 524 U.S.at 754; Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986). Based onTitle VII’s agency language, the Court has held that the “absence of notice toan employer does not necessarily insulate that employer from liability.” Meritor Sav. Bank, 477 U.S. at 72. Similarly, in analyzing the AgeDiscrimination in Employment Act, 29 U.S.C.A. �� 621-634 (1999), whichcontains the same “agent” language as Title VII, the Fourth Circuitconcluded that making the employer responsible for the actions of its agents”ensures that no employee can violate the civil rights laws with impunity, asafeguard that has proven sufficient with respect to Title VII, the ADEA’sclosest statutory kin.” Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510(4th Cir. 1994). The bottom line is this: The Court has today eliminated thestatutory basis for agency liability under the Act. In the absence of expressagency language in the statute, an employer may escape responsibility forthe discriminatory actions of its agents. The Court’s decision strips theMHRA of its clearly articulated agency language and leaves Maine claimantsin an uncertain position in their ability to hold the employer responsible forthe discriminatory conduct of employees in the workplace when theemployer is unaware of the conduct or did not authorize it.
[FOOTNOTE 13] This is a resultnever intended by the Legislature.
[FOOTNOTE 14] C. Penalties Because the MHRA and Title VII are similar in scope andpurpose, the Court has consistently looked to federal caselaw for guidance ininterpreting the Maine Act. See DiCentes v. Michaud, 1998 ME 227, � 14n.10, 719 A.2d 509, 514 n.10; Finnemore v. Bangor Hydro-Elec. Co., 645A.2d 15, 17 (Me. 1994). The penalties provisions of the MHRA and Title VIIgive further proof that individual liability was never intended by the authorsof those Acts. Although the penalties provisions are not identical, their goalsand limitations are similar and unmistakable-each act upon the employer tobring that employer into compliance, to remedy past discrimination, and todeter future discrimination by the employer. Under Title VII’s original remedial scheme, the onlypunishments available for violating Title VII were reinstatement andbackpay. See Lissau v. Southern Food Serv., Inc., 159 F.3d 177, 181 (4thCir. 1998); Wathen v. General Elec. Co., 115 F.3d 400, 406 (6th Cir. 1996). Because individual employees are generally not in a position to rehire or paybackpay, courts have concluded that Title VII was not intended to extendliability to individuals. See Busby v. City of Orlando, 931 F.2d 764, 772 (11thCir. 1991). Congress amended the remedial scheme in 1991 to provide forcompensatory and punitive damages. See 42 U.S.C.A. � 2000e-5 (1994 &Supp. 1999). These damages, however, were capped by explicit referenceto the size of the employer. See id. These changes are further evidencethat individual liability was not intended. “[R]elief granted under Title VII isagainst the employer, not individual employees whose actions wouldconstitute a violation of the Act.” Busby, 931 F.2d at 772. The MHRA’s penalty scheme has gone through similarchanges. As originally passed, section 4613 provided that violations of theAct could result in penalties such as “an order to cease and desist from theunlawful practices,” 5 M.R.S.A. � 4613(2)(B)(1), “an order to employ orreinstate the victim . . . with or without backpay,” 5 M.R.S.A.� 4613(2)(B)(2), and an order to pay civil fines increasing with the numberof violations, see 5 M.R.S.A. � 4613(2)(B)(7). Like their federalcounterparts, these penalties are directed at employers, not at individuals. Additionally, section 4613 was amended in 1997 to providefor compensatory and punitive damages for “intentional employmentdiscrimination.” P.L. 1997, ch. 400, � 1. The Legislature, however, cappedpotential damages. See 5 M.R.S.A. �� 4613(2)(B)(7),4613(2)(B)(8)(e)(i)-(iv). Following Title VII’s lead, these caps are directlyrelated to the size of the employer. Indeed, the caps specifically presumethat the respondent is an employer and not an individual. See id. Had theLegislature intended liability to extend to individual supervisors and co-workers, surely it would have established compensatory caps related to theincome or assets of the individual as opposed to the size of the employer. D. Conclusion In order to give the statute meaning and broad application,liability should rest squarely with employers who will be responsible underthe Act for the conduct of any persons acting in their interests. Thisinterpretation best satisfies the Act’s stated goal of “protect[ing] the publichealth, safety, and welfare” and ensuring that “corrective measures may,where possible, be promptly recommended and implemented.” Because the Court’s reading of the statute does not effectuatethe broad remedial goals supporting the MHRA, and because the Act’sremedial scheme clearly indicates that the Act was never intended toextend liability to individuals, I would affirm the judgment of the SuperiorCourt on this issue. :::FOOTNOTES:::
FN1 Implicit in this factual finding is the trial court’s conclusion that the evidence was sufficient to allowthe MHRA claim to proceed against Bill.
FN2The Supreme Court has yet to address the issue of individual supervisor liability under Title VII.
FN3 Subparagraph B(7) reads: (7) An order to pay to the victim of unlawful discrimination, other than employment discrimination in the case of a respondent who has more than 14employees, or, if the commission brings action on behalf of the victim, an order to pay to the victim, the commission or both, civil penal damages not in excess of$10,000 in the case of the first order under this Act against the respondent, not in excess of $25,000 in the case of a 2nd order against the respondent arising underthe same subchapter of this Act and not in excess of $50,000 in the case of a 3rd or subsequent order against the respondent arising under the same subchapter ofthis Act, except that the total amount of civil penal damages awarded in any action filed under this Act may not exceed the limits contained in this subparagraph. 5M.R.S.A. � 4613 (2)(B)(7) (1989 & Supp. 1999).
FN4 The Legislature amended the available remedies in 1997. See L.D. 1713 (118th Legis. 1997) and Comm.Amend. A. to L.D. 1713, No. H-592 (118th Legis. 1997) enacted as P.L. 1997, ch. 400. The Legislature increased the amount of civil penal damages. The Legislature also added subparagraph B(8) to follow the recent amendments to the federal statute. Subparagraph B(8) allows a plaintiff to recover punitive andcompensatory damages against a respondent with fifteen or more employees. The amount of damages is limited according to the number of employees.Subparagraph B(8) reads in relevant part: (8) In cases of intentional employment discrimination, compensatory and punitive damages as provided in thissubparagraph. * * * (e) The sum of compensatory damages awarded under this subparagraph for future pecuniary losses, emotional pain, suffering, inconvenience,mental anguish, loss of enjoyment of life, other nonpecuniary losses and the amount of punitive damages awarded under this section may not exceed for eachcomplaining party: (i) In the case of a respondent who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current orpreceding calendar year, $50,000; (ii) In the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks inthe current or preceding calendar year, $100,000; (iii) In the case of a respondent who has more than 200 and fewer than 501 employees in each of 20 or morecalendar weeks in the current or preceding calendar year, $200,000; and (iv) In the case of a respondent who has more than 500 employees in each of 20 or morecalendar weeks in the current or preceding calendar year, $300,000. 5 M.R.S.A. � 4613 (2)(B)(8) (1989 & Supp. 1999).
FN5 We note that the exclusivityprovisions of the Workers’ Compensation Act do not bar Betty’s MHRA claim because 39-A M.R.S.A. � 104 only bars common law actions and certainenumerated statutory claims involving personal injuries and the MHRA is not one of those specifically cited statutes. See 39-A M.R.S.A. � 104 (Supp. 1999).
FN6 See Lenhardt v. Basic Inst. of Tech., Inc., 55 F.3d 377, 380 (8th Cir. 1995) (holding statutory definitions of “any agent of such a person” and “any person actingdirectly in the interest of an employer” presented a “distinction without a difference”).
FN7 See Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103, 1111 (8th Cir.1998); Wathen v. General Elec. Co., 115 F.3d 400, 405 (6th Cir. 1997); Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1078 (3d Cir. 1996);Geier v. Medtronic, Inc., 99 F.3d 238, 244 (7th Cir. 1996); Haynes v. Williams, 88 F.3d 898, 901 (10th Cir. 1996); Tomka v. Seiler Corp., 66 F.3d 1295, 1313(2d Cir. 1995); Gary v. Long, 59 F.3d 1391, 1399 (D.C. Cir. 1995); Greenlaw v. Garrett, 59 F.3d 994, 1001 (9th Cir. 1995); Grant v. Lone Star Co., 21 F.3d649, 653 (5th Cir. 1994).
FN8 Although I recognize that the use of the phrase “or against an employee of a governmental entity” in the Act’s penalty provision, 5M.R.S.A. � 4316(8)(i) (1989 & Supp. 1999), appears to run counter to this conclusion, I do not believe that is the case. I would conclude the Legislature includedthis penalty provision in order to assure that nothing in the Act altered the analysis of a State actor’s immunity from liability.
FN9 The First Circuit has not yet had anopportunity to rule on the existence of individual liability under the provisions of Title VII. A recent commentary urged the court to reach the issue at the earliestopportunity to reduce uncertainty in the circuit. After considering the arguments both for and against an interpretation incorporating individual liability within the termsof the Act, the comment reached the following conclusion: “Given the overwhelming rejection of individual liability in the circuit courts, the compelling argumentsagainst individual liability[], and the flaws noted with the arguments in favor of liability, the First Circuit should reject Title VII personal liability.” Patrick J. McGrath,Comment, Ambiguity Surrounding Individual Sexual Harassment Liability on the Federal and State Level in Massachusetts, 3 Suffolk J. Trial & Appellate Advoc.129, 141 (1998).
FN10 Indeed, statutes similar to the MHRA have proliferated in recent years for the very purpose of creating causes of action for conduct nototherwise actionable. See, e.g., Americans with Disabilities Act, 42 U.S.C.A. �� 12101-12213 (1995 & Supp. 1999); Age Discrimination in Employment Act, 29U.S.C.A. �� 621-634 (1999); Age Discrimination Act, 42 U.S.C.A. �� 6101- 6107 (1995 & Supp. 1999); Education Amendments of 1972, 20 U.S.C.A. ��1681-1688 (2000) (“Title IX”).
FN11 See Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999); Murrell v. School Dist. No. 1 Denver, Co., 186 F.3d 1238,1246 (10th Cir. 1999); Kinman v. Omaha Pub. Sch. Dist., 171 F.3d 607, 609 (8th Cir. 1999); Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 220, n.8 (5th Cir.1998); Oona v. McCaffrey, 143 F.3d 473, 477 (9th Cir. 1998); Smith v. Metropolitan Sch. Dist. Perry Township, 128 F.3d 1014, 1034 (7th Cir. 1997);Kracunas v. Iona College, 119 F.3d 80, 88 (2d Cir. 1997).
FN12 In Gebser, a sexually abused student sued both the abusive teacher individually and the schoolboard. See id. at 286. The Court held that the school board could not be held liable on the Title IX claim because common law agency rules, made applicable by theexplicit language of Title VII, do not apply in Title IX claims and thus do not extend liability to school boards absent actual knowledge of the abuse and a failure toact. See id. at 287. The Court reached this conclusion, in part, because Title IX does not contain an “agency” provision similar to the provision contained in TitleVII’s definition of an employer. See id. (“Title IX contains no comparable reference to an educational institution’s ‘agents,’ and does not expressly call for applicationof agency principles.”). The Court has announced as recently as May 24, 1999, that school districts will be “liable for damages only where the district itselfintentionally acted in clear violation of Title IX by remaining deliberately indifferent to acts of teacher-student harassment of which it had actual knowledge.” Davis v.Monroe County Bd. of Educ., 526 U.S. 629, 642 (1999) (emphasis added).
FN13 In addition, the Court’s interpretation is at odds with the Act itself, whichprovides that “[i]n determining whether any person is acting as an agent or employee of another person so as to make such other person responsible for his acts, thequestion of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.” 5 M.R.S.A. � 4553(10)(E) (1989 &Supp. 1999) (emphasis added). If the “person acting in the interest of the employer” language creates individual liability rather than agency or respondeat superiorliability, section 4553(10)(E) may lose much of its effectiveness.
FN14 We were recently called upon to address a similar issue in the context of a WhistleblowersProtection Act claim. The WPA defines employer to include “an agent of an employer.” 26 M.R.S.A. � 832(2) (1988). We concluded that the plain language of thatprovision constituted a legislative creation of respondeat superior. See DiCentes v. Michaud, 1998 ME 227 �� 11-13, 719 A.2d 509, 513-14. Because weconcluded that there was no factual basis for individual liability in that matter, we did not reach the issue presented here. See id. �� 19-21, 719 A.2d at 515-16.
Gordan v. Cummings Maine Supreme Judicial Court BARBARA J. GORDAN, Appellant-Plaintiff, v. ORMAN F. CUMMINGS, ORMAN F. CUMMINGS III, and CREST ENTERPRISES, INC., Appellee-Defendant. No: Cum-99-254 Argued: December 7, 1999 Decided: April 19, 2000 Before: CLIFFORD, RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ., RUDMAN, DANA, and ALEXANDER, JJ. Counsel for Appellant: John S. Campbell Counsel for Appellee: Joseph J. Hahn and Glenn Isreal
