Fuhrmann v. Staples the Office Superstore East, Inc.

LEVY, J.,

with whom MEAD and GORMAN, JJ., join, concurring in part and dissenting in part.

[¶ 36] I concur that the summary judgment awarded to Staples should be vacated, but I respectfully dissent from the majority opinion’s conclusion that Fuhrm-ann cannot maintain suit against her individual supervisors. Fuhrmann can sue her individual supervisors because (A) the Maine Human Rights Act’s definition of “employer” in 5 M.R.S. § 4553(4) (2011) is unambiguous and encompasses individual supervisors within its terms, thus subjecting them to liability for their unlawful discrimination; and to the extent section 4553(4) is ambiguous, (B) we should interpret section 4553(4) in harmony with the other provisions of the MHRA, and (C) we should defer to the reasonable interpretation of the Maine Human Rights Commis*1099sion, both of which also result in individual supervisor liability.

A. The language of section 4553(4) is unambiguous and defines “employer” to include individual supervisors, thus subjecting them to liability for their unlawful discrimination pursuant to section 4572

[¶ 37] Pursuant to the MHRA, “any employer” who commits employment discrimination against an employee for protected whistleblowing activities commits unlawful employment discrimination. 5 M.R.S. § 4572(1)(A) (2011); 26 M.R.S. § 833(1)(A) (2011). An “employer” includes “any person acting in the interest of any employer, directly or indirectly.” 5 M.R.S. § 4553(4).14 Thus, when individual supervisors act in the interest of their employers, they, too, are “employers” within the meaning of section 4572(1)(A). See id. And when those individual supervisors commit employment discrimination against an employee for protected whistle-blowing activities, they commit unlawful employment discrimination. See id. § 4572(1)(A); 26 M.R.S. § 833(1)(A).

[¶ 38] When unlawful discrimination occurs, the injured party’s remedy is to file suit “against the person or persons who committed the unlawful discrimination.” 5 M.R.S. § 4621 (2011). The MHRA defines a “person” to include “one or more individuals.” Id. § 4553(7) (2011). Thus, when unlawful employment discrimination occurs, the injured party may file suit against any individual responsible for the unlawful discrimination. See id. §§ 4553(7), 4621. Because individual supervisors acting in the interest of their employer can commit unlawful employment discrimination, see id. § 4572(1)(A), individual supervisors are among the individuals against whom a plaintiff may file suit, see id. §§ 4553(7), 4621.

[¶ 39] No ambiguity is present here. By its plain language, the MHRA allows a plaintiff to file suit against individual supervisors, acting in the interest of their employers, who unlawfully discriminate. However, even if section 4553(4) is treated as ambiguous, its interplay with other statutory provisions would counsel the same result.

B. We should interpret section 4553(4) in harmony with other provisions in the MHRA

[¶40] As the majority opinion states, “statutes must be read together and in light of the entire statutory scheme to produce cohesive results.” Majority Opinion ¶ 27 (citing Adoption of Tobias D., 2012 ME 45, ¶ 15, 40 A.3d 990). Yet, the majority opinion’s construction of section *11004553(4), which would deny individual supervisor liability, renders a portion of the MHRA meaningless and superfluous.

[¶ 41] Title 5 M.R.S. § 4613(2)(B)(8)(i) (2011) states that “[p]unitive damages may not be included in a judgment or award ... against an employee of a governmental entity based on a claim that arises out of an act or omission occurring within the course or scope of that employee’s employment.” 5 M.R.S. § 4613(2)(B)(8)(i) (emphasis added). If there is no potential liability for individual employees who meet the definition of “employer” pursuant to the MHRA, including supervisory employees, as the majority opinion concludes, then there would be no need to limit their liability for punitive damages, and that language becomes meaningless. But see Blue Yonder, LLC v. State Tax Assessor, 2011 ME 49, ¶ 10, 17 A.3d 667 (“Words in a statute must be given meaning and not treated as meaningless and superfluous.” (quotation marks omitted)).

[¶ 42] Thus, we should interpret section 4553(4) to accommodate the individual supervisor liability contemplated in section 4613. See id. Not surprisingly, the Maine Human Rights Commission has long held to that interpretation, and that interpretation is reasonable.

C. The reasonable interpretation of the Maine Human Rights Commission, recognizing individual supervisor liability, deserves deference

[¶ 43] The Commission has consistently interpreted the MHRA to permit individual supervisor liability. We should therefore exercise restraint and defer to that interpretation because it is reasonable and because the MHRA does not compel a contrary interpretation. See Majority Opinion ¶ 23 (“When a statute administered by an agency is ambiguous, we ‘review whether the agency’s interpretation of the statute is reasonable and uphold its interpretation unless the statute plainly compels a contrary result.’ ” (quoting Goodrich v. Me. Pub. Emps. Ret. Sys., 2012 ME 95, ¶ 6, 48 A.3d 212)).

[¶ 44] The Commission’s construction of section 4553(4) is consistent with the plain language of the MHRA as a whole, including its section on remedies, 5 M.R.S. § 4613(2)(B) (2011). It is true, as the majority opinion observes, that some of the available remedies for discrimination “are clearly designed to apply to employers, not individual supervisors.” Majority Opinion ¶ 33. This observation is entirely consistent with the Commission’s interpretation. The remedies provision states that a court finding unlawful discrimination “must specify an appropriate remedy or remedies,” and that those “remedies may include, but are not limited to” the remedies cited by the majority opinion as inconsistent with individual supervisor liability. 5 M.R.S. § 4613(2)(B) (emphasis added). Thus, the remedies provision is only inconsistent with individual supervisor liability if we ignore the Legislature’s directive that a court should select an appropriate remedy from the optional, nonexhaustive list provided by the statute.

[¶ 45] The Commission’s construction of section 4553(4) is also consistent with the purposes of the MHRA, and with the liberal construction we use to further those purposes. See DiCentes v. Michaud, 1998 ME 227, ¶ 10, 719 A.2d 509; Dir. of the Bureau of Labor Standards v. Cormier, 527 A.2d 1297, 1300 (Me.1987).

[¶ 46] One of the purposes of the MHRA is “to prevent discrimination in employment.” 5 M.R.S. § 4552 (2011). By subjecting individual supervisors to a potential lawsuit for their unlawful employment discrimination, the Commission’s construction directly discourages individual supervisors from discriminating by ere-*1101ating a disincentive. In contrast, the majority opinion’s construction creates no such disincentive to discriminate. Thus, not only does the Commission’s interpretation discourage employment discrimination, it also furthers that purpose to a greater extent than the construction adopted by the majority opinion, making it a preferable interpretation. See Cormier, 527 A.2d at 1300.

[¶ 47] Another purpose of the MHRA is to remedy employment discrimination that has previously occurred. See 5 M.R.S. § 4613(2)(B). When an individual supervisor has committed employment discrimination, the Commission’s construction gives the plaintiff a remedy against both the supervisor, pursuant to section 4553(4), as well as the supervisor’s employer, pursuant to section 4553(10)(E) (2011), which plainly recognizes the applicability of vicarious liability.15 In contrast, the construction adopted by the majority opinion provides plaintiffs with a remedy against only the supervisor’s employer. This construction creates a gap in the context of injunctive relief, by creating the potential for employment discrimination to remain unabated if upper management fails to reign in a problematic supervisor. It is far more likely that an individual supervisor will stop personally discriminating against an employee if the supervisor knows that a failure to do so could result in a judicial contempt proceeding for violating “[a]n order to cease and desist from the unlawful practices,” pursuant to 5 M.R.S. § 4613(2)(B)(1). Thus, by providing remedies against both the employer as an entity and against any individual supervisors who commit unlawful discrimination, the Commission’s construction strengthens the judicial remedies of the MHRA, thereby furthering its purposes. The majority opinion’s construction weakens those remedies.

[¶ 48] The majority opinion’s conclusion — that the MHRA plainly compels an interpretation contrary to the Commission’s — is plainly wrong. There is no sound basis to conclude that the Commission’s construction of section 4553(4) is inconsistent with any provision of the MHRA, nor to conclude that sheltering individual supervisors from liability for their discriminatory acts better advances the purposes of the MHRA — a law intended to deter and provide remedies for discrimination. We should defer to the Commission’s interpretation of section 4553(4), because it furthers the purposes of the MHRA while remaining consistent with the plain language of section 4553(4) and the MHRA as a whole. See Goodrich, 2012 ME 95, ¶ 6, 48 A.3d 212.

D. Conclusion

[¶ 49] In keeping with the plain meaning of section 4553(4), the statute as a whole, and the Commission’s consistent, reasonable interpretation of section 4553(4), we should conclude that individual supervisors acting in the interest of their employers may be liable for the discriminatory acts they commit.16 To the *1102extent that one disagrees with the policy-choices implicit in the plain language of the statute, the appropriate forum to reexamine those choices is the Legislature, not this Court. See Whitney v. Wal-Mart Stores, Inc., 2006 ME 37, ¶ 27, 895 A.2d 309 (observing that “[i]f a legislative policy concern is valid, the appropriate body to address that concern is the Maine Legislature, it is not to seek amendment of the law by judicial action”). For these reasons, Fuhrmann’s claims against her individual supervisors should be reinstated.

. Section 4553(4) defines "employer” to include three separate, distinct categories, separated by semi-colons:

"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. § 4553(4) (2011). Grammatically, this provision unmistakably treats the second category of "employer” — "any person acting in the interest of any employer, directly or indirectly” — as distinct from the first category of "employer,” which describes the employing person or entity with whom the plaintiff maintained an actual employment relationship. The second category of employer is no more a part of, or subsumed by, the first category of employer than is the third category of "employer” addressing labor organizations.

. Title 5 M.R.S. § 4553(10)(E) (2011) states: "In determining whether a person is acting as an agent or employee of another person so as to make such other person responsible for that person’s acts, the question of whether the specific acts performed were actually authorized or subsequently ratified is not controlling.”

. Because the question of individual supervisor liability is presented in the context of a motion to dismiss, the parties have not briefed, and I do not examine, the scope of supervisor liability imposed by the MHRA or whether, according to the facts of this case, the individuals named by Fuhrmann in her complaint should be considered "employers.” See Haybarger v. Lawrence Cnty. Adult Prob. & Parole, 667 F.3d 408, 417-18 (3d Cir.2012) *1102(discussing the “economic reality” test used by federal courts to determine whether an individual supervisor had sufficient authority, control, and responsibility to function as an employer for the purpose of imposing individual liability pursuant to the FLSA and FMLA); see also Dir. of the Bureau of Labor Standards v. Cormier, 527 A.2d 1297, 1299-1300 (Me.1987) (approving trial court’s reliance on FLSA cases and the use of an “economic reality” analysis for determining employers' relationship in state law wage and hour case).