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Kopenga v. Davric Maine Corp.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 65
Docket:	Cum-98-415
Argued:	March 3, 1999
Decided:	April 27, 1999




	[¶1]  Davric Maine Corporation appeals from a judgment of the
Superior Court (Cumberland County, Mills, J.) finding liability and awarding
damages on Jewell Kopenga's claim for sex discrimination pursuant to Title
VII of the Federal Civil Rights Act, 42 U.S.C.A. § 1981a (1994), and the
Maine Human Rights Act, 5 M.R.S.A. § 4613(2)(B) (Pamph. 1998).  On
appeal, Davric does not contest the sex discrimination finding, but
challenges the damage awards for lost wages, general compensatory
damages and punitive damages.  We affirm the lost wages and compensatory
damages awards but vacate the award of punitive damages.
	[¶2]  Davric is the operating entity for Scarborough Downs, a harness
racing track located in Scarborough.  Kopenga was employed on the security
staff at Scarborough Downs from March to November of 1995.  She had
previously worked as a security officer at the race track in the early 1980's. 
Additionally, she had a bachelor's degree in criminal justice and experience 
in security work with the Cumberland County Sheriff's Office and the Maine
Correctional Center.  
	[¶3]  When Kopenga interviewed to work at Scarborough Downs in
1995, William Duffy, the Director of Security, told Kopenga that he did not
ordinarily hire women.  Kopenga began in March and worked primarily in
the dispatch office, answering telephones and completing paper work.  She
earned six dollars per hour.
	[¶4]  Two significant assignments performed by security officers at the
race track were the "sweeps" and the midnight shift at the "stable gate." 
The sweeps involved collecting money from cash generating venues at the
race track.  The stable gate is the entrance to the barns where the horses
are kept and was regarded by some as rowdy in the late night hours.  
	[¶5]  When Kopenga started at Scarborough Downs, the Deputy Chief
of Security attempted to train her in how to conduct a sweep.  However,
Duffy interrupted the training and told Kopenga that he would not allow
women to do sweeps.  
	[¶6]  In order to work additional hours, Kopenga requested that she
be assigned to work the midnight shift, particularly at the stable gate. 
Generally, Kopenga was denied these assignments because Duffy did not
allow women to perform late night security at the stable gate.  On one
particular occasion, the Budweiser Clydesdales came to Scarborough Downs
for two weeks.  Kopenga asked if she could work an additional eighty hours
at the stable gates during those two weeks.  Again her request was rebuffed
because of her gender.
	[¶7]  When Kelly Foster, the general manager at Scarborough Downs
later learned of Duffy's actions, she met with Duffy, advised him that his
actions were in violation of company policy and directed him to change the
discriminatory practices.
	[¶8]  Ultimately, Kopenga left Scarborough Downs because of disputes
over her work assignments.  She then commenced the present
discrimination action pursuant to the Maine Human Rights Act and the
Federal Civil Rights Act, initially presenting her claim to the Maine Human
Rights Commission and then filing a complaint in the Superior Court.{1}  
	[¶9]  After a bench trial, the Superior Court ruled in Kopenga's favor,
finding discrimination and awarding damages of $5,404.50 for lost wages,
$5000 for general compensatory damages and $5000 for punitive damages. 
In its findings, the court determined that Duffy's discriminatory policy was
"intentional."  In addition, the court found that "[t]he refusal by Scarborough
Downs to allow [Kopenga]" to work the requested security assignments "was
degrading and humiliating."  Davric made no request for additional findings
pursuant to  M.R. Civ. P. 52 and filed this appeal.
	[¶10]  We review a trial court's findings of fact for clear error,
upholding those findings if there is competent evidence in the record to
support them.  See Maine Farmers Exch. v. McGillicuddy, 1997 ME 153,
¶ 7, 697 A.2d 1266, 1269.  When, as in this case, the appellant has not
asked the court "to make formal findings of fact, we assume that the court
found all facts necessary to support its holding."  See Williams v. Ubaldo,
670 A.2d 913, 916 (Me. 1996).  With that background as the standard for
review of the trial court's findings, we proceed to address Davric's
contentions on appeal.
	[¶11]  We will uphold an award of back pay under the Maine Human
Rights Act "absent clear error by the grant of the award or an abuse of
discretion in the amount awarded."  Leblond v. Sentinel Serv., 635 A.2d
943, 945 (Me. 1993); see also 5 M.R.S.A. § 4613(2)(B).  There is no abuse of
discretion when the court "awards back pay in amounts 'designed to make
the employee whole and not to penalize the employer unless that penalty is
authorized by statute.'"  Id. (quoting Rozanski v. A-P-A Transp. Inc., 512 A.2d
335, 342 (Me. 1986)).
	[¶12]  The trial court determined that but for Duffy's practiced policy
of gender discrimination, Kopenga could have worked sixteen additional
hours per week for a period of thirty-three weeks and that she would have
earned overtime for almost all of these hours.  The court also concluded that
Kopenga would have been able to work an additional eighty hours of
overtime during the Clydesdale event.{2}
	[¶13]  Davric hotly contested Kopenga's claims of back pay, presenting
evidence that Scarborough Downs' overtime budget was limited and that
overtime was not permitted unless absolutely necessary.  The record also
included evidence that at least during the final eleven weeks of her
employment (i) Kopenga worked as much or more overtime than any other
Scarborough Downs security employee, and (ii) no security employee
worked, or had the opportunity to work the hours of overtime that Kopenga
asserted she could have worked but for the discrimination.  Certainly, if one
accepts the evidence from Scarborough Downs's point of view, it could
support a finding that Kopenga lost little or no overtime pay opportunities
because of gender discrimination.  However, that is not our standard of
review.  See LeBlond, 635 A.2d at 945 (Court reviews an award of back pay
for clear error, with the amount of the award subject to review for abuse of
	[¶14]  Kopenga presented evidence that (i) she took notice of the
assignments of security positions; (ii) there were frequent vacancies on the
midnight shift position; (iii) she was available to fill these vacancies; (iv)
when she asked to fill these vacancies, her requests were denied because
she was a woman; (iv) she had some responsibility for finding persons to fill
these and other vacant positions; (v) Scarborough Downs could not fill the
vacant positions; and (vi) supervisors were forced to work the midnight
shift.  The record also includes evidence that Kopenga herself had worked
as many as eleven and one-half hours additional overtime in a particular
week and that other employees did work overtime.
	[¶15]  At trial, Kopenga was asked to estimate how much overtime she
would have been able to work but for Duffy's discriminatory policy.  Based on
her personal knowledge of the schedule, her own physical capacities and
the needs of her co-workers, Kopenga estimated that she could have worked
sixteen hours of overtime each week.  In addition, when the Clydesdale
show came to Scarborough Downs for two weeks, she requested to work
eighty hours of overtime at the stable gate and her request was denied
because of her gender.
	[¶16]  In light of this evidence, the trial court rationally could have
concluded that overtime assignments, particularly the midnight shift, were
regularly available, and that Kopenga could have and would have filled these
positions and received the extra overtime she sought but for the gender
discrimination.  See Bourette v. Dresser Indus., Inc., 481 A.2d 170, 174 (Me.
1984) (holding a damage award will be affirmed unless "it is plain that there
is no rational basis upon which the amount of the award may be
supported.").  Because the trial court's findings of fact on the availability of
overtime are supported by competent evidence in the record, albeit
disputed, we affirm the award of back pay.  See Maine Farmers Exch., 1997
ME 153, ¶ 7, 697 A.2d at 1269.
	[¶17]  In order to align Maine law with the Federal Civil Rights Act of
1991, 42 U.S.C. § 1981a(a)(1), the Legislature amended the Maine Human
Rights Act in 1997 to provide for compensatory damages in cases of
intentional employment discrimination.  See P.L. 1997, ch. 400, § 1
(codified at 5 M.R.S.A. § 4613(2)(B)(8)); L.D. 1713, Statement of Fact (118th
Legis. 1997).  Because this action was also brought under Title VII, the Title
VII damages provisions arguably apply concurrently with the 1997 damages
provisions of the Maine Human Rights Act.  Neither party raised any issue
regarding application of the 1997 Maine Human Rights Act amendments to
the actions in this case which occurred in 1995.  See Howe v. Natale, 451
A.2d 1198, 1201 (Me. 1982).  Thus, any objection on this point is waived. 
	[¶18]  Davric asserts that the award of general compensatory damages
is not supported by the evidence because Kopenga did not suffer serious
emotional distress as a result of the discrimination.  In making this point,
Davric appears to argue that the standard for an award of general
compensatory damages for emotional distress under section
4613(2)(B)(8)(e) should be the same as the restrictive standard for an award
of damages under negligent infliction of emotional distress claims.  Cf. Gayer
v. Bath Iron Works Corp., 687 A.2d 617, 622 (Me. 1996) (NIED claim
requires showing of serious emotional distress).  In this argument, Davric
misapprehends the application of the general compensatory damages
provisions of the Maine Human Rights Act.  Section 4613(2)(B)(8)(e) allows
the court to award damages for "emotional pain, suffering, inconvenience,
mental anguish, loss of enjoyment of life [and] other nonpecuniary
losses . . . ."  In referring to "inconvenience" this statute plainly
contemplates a much lower threshold for an awarding of damages.  The
language is similar to the low threshold of evidence for awarding damages
under the pain, suffering, mental anguish and loss of enjoyment of life
criteria of general tort actions.  Cf.  Alexander, Maine Jury Instruction Manual
§ 7-70 (3d ed. 1998).
	[¶19]  In describing how Duffy's policy of gender discrimination
impacted her emotionally, Kopenga testified,
I can't think of any other time in my life that I have ever felt
more humiliated and degraded to have put in so many years in
education, in training, in law enforcement, and then to walk into
a security department and be told that I cannot do the jobs that I
am not only fully qualified to do but better qualified than anyone
there, including their own administration, based on my gender. 
I am sorry, it was very humiliating.
This testimony presented sufficient evidence of emotional distress as a
result of the gender discrimination to support the trial court's findings and
award of general compensatory damages.  See Migis v. Pearle Vision, Inc.,
135 F.3d 1041, 1046-47 (5th Cir. 1998) (upholding an award of
compensatory damages where plaintiff testified that as a result of gender
discrimination, she had suffered low self-esteem, anxiety attacks, marital
hardships, crying and sleeplessness).
	[¶20]  In 1997, the Legislature also amended the Maine Human Rights
Act to provide for punitive damages in cases of intentional employment
discrimination.  P.L. 1997, ch. 400, § 1 (codified at 5 M.R.S.A 
§ 4613(2)(B)(8)).  Again, the purpose of the amendment was to bring Maine
law in line with federal law under Title VII of the Federal Civil Rights Act. 
See L.D. 1713, Statement of Fact (118th Legis. 1997).  As with the Federal
Civil Rights Act, a party may recover punitive damages under the Maine
Human Rights Act if he or she "demonstrates that the respondent engaged
in a discriminatory practice . . . with malice or with reckless indifference to
[his or her] . . . rights . . . protected by this Act."  See 5 M.R.S.A.
§ 4613(2)(B)(8)(c); 42 U.S.C.A. § 1981a(b)(1).  Federal precedent on Title
VII provides useful guidance for our interpretation of the Maine Human
Rights Act, particularly where, as here, language is borrowed directly from
federal law.   See Winston v. Maine Technical College System, 631 A.2d 70,
74 (Me. 1993); Bowen v. Department of Human Services, 606 A.2d 1051,
1053 (Me. 1992); Percy v. Allen, 449 A.2d 337, 342 (Me. 1982).   
	[¶21]  In Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1323 (11th
Cir. 1999), the United States Court of Appeals for the Eleventh Circuit held
that the trial court abused its discretion by awarding punitive damages
against the employer in a Title VII racial discrimination suit.  In that case, a
Wal-Mart store's co-manager and assistant manager denied one employee a
promotion and demoted another because of their race.  Id. at 1319.  The
court noted that no one in upper management knew of the discriminatory
conduct and held that neither employee was high enough in the corporate
hierarchy to allow their conduct to be the basis for punitive damages against
the corporation.  Id. at 1323.  The key to Dudley is that punitive damages
should be awarded against those who have done wrong, not "those who have
liability by implication of law only."  Id.  See also Splunge v. Shoney's, Inc.,
97 F.3d 488, 490-91 (11th Cir. 1996) (holding in Title VII sexual
harassment case, that actions of area supervisor and others did not
constitute sufficient knowledge to hold employer liable for punitive
damages; mere constructive knowledge of conduct was not enough).
	[¶22]  The United States Court of Appeals for the Fifth Circuit has also
required that upper management be aware of the discriminatory acts before
punitive damages can be levied against a corporate employee.  See Patterson
v. P.H.P. Healthcare Corp., 90 F.3d 927, 944 (5th Cir. 1996).  The court held
it was an abuse of discretion to award punitives in a Title VII racial
discrimination case where the activities were solely those of a project
manager at a nursing facility.  Id.  Despite controlling the hiring, firing and
scheduling of various employees, the court emphasized that the employer
had no knowledge of the employee's conduct, and never authorized, ratified,
or approved it.{3}  Id.
	[¶23] By requiring something more than constructive knowledge
before imposing punitives on a corporate employer, the law encourages
employees to notify upper-level management of discriminatory practices,
thus allowing employers the opportunity to rectify unlawful behavior, an
announced aim of the Maine Human Rights Act.  See 5 M.R.S.A. § 4552
(Pamph. 1998). 
	[¶24]  In Tuttle v. Raymond, 494 A.2d 1353, 1355 (Me. 1985), we
discussed the nature of punitive damages, stating:  "the doctrine . . . survives
because it continues to serve the useful purposes of expressing society's
disapproval of intolerable conduct and deterring such conduct where no
other remedy would suffice." "Notions of fairness and efficiency weigh
against allowing exemplary awards where the stated goal of deterring
reprehensible conduct would be furthered only marginally or not at all."  Id.
at 1360.
	[¶25]  In this case, the justifications for punitive damages have not
been met.  The trial court's award is directed at Davric, yet all of the
discriminatory acts were committed by Duffy.  While Duffy did have limited
power to hire and fire security officers at Scarborough Downs, and to
establish work schedules and duties, he was not a member of corporate
management.  There is nothing in the record to show that prior to
Kopenga's letter declaring her intention to quit that Davric had or should
have had any knowledge of Duffy's conduct, or that it somehow authorized,
ratified, or approved it.  To the contrary, when Kelly Foster, the general
manager at Scarborough Downs, learned of Duffy's actions, she met with him
to explain the actions were in violation of company policy, and required him
to alter the discriminatory practices.  
	[¶26]  Because neither the trial court's findings nor the record
support the prerequisites for an award of punitive damages, we vacate the
award of punitive damages.

	The entry is:
Judgment modified to delete the award of
punitive damages.  As modified the judgment is

Attorney for plaintiff: William C. Nugent, Esq., (orally) P O Box 4811 Portland, ME 04112 Attorneys for defendant: Edward S. MacColl, Esq., (orally) F. Jay Meyer, Esq. Thompson, Bull, Furey, Bass & MacColl, LLC, P.A. P O Box 447 Portland, ME 04112-0447
FOOTNOTES******************************** {1} . If a plaintiff wants to avail herself of all opportunities for recovery under the Maine Human Rights Act, including attorney fees, compensatory damages and punitive damages, the plaintiff must first present the claim to the Maine Human Rights Commission, then, after action by the Commission, the party may bring a private action for discrimination in the Superior Court. See 5 M.R.S.A. § 4622 (Pamph. 1998). Plaintiff's original complaint was in five counts, but only the counts charging violations of the Maine Human Rights Act (Count I) and the Federal Civil Rights Act (Count II) and seeking punitive damages (Count V) were tried. Judgments on Counts III and IV of the complaint and on the counterclaim are not subject to this appeal. {2} . Pursuant to 26 M.R.S.A. § 664(3) (Supp. 1998), "[a]n employer may not require an employee to work more than forty hours in any one week unless one and one-half times the regular hourly rate is paid for all hours actually worked in excess of forty hours in that week." Given that Kopenga earned six dollars per hour, the court awarded her nine dollars per hour for each hour of overtime denied because of her gender. {3} . Patterson has been questioned by Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 592-93 (5th Cir. 1998), in light of the Supreme Court's decision applying agency principles to determine vicarious liability in Title VII sexual harassment cases. See Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998). The validity of Deffenbaugh-Williams itself, however, is doubtful first, because it has been vacated for a rehearing en banc, Williams v. Wal- Mart Stores, Inc., No. 97-10685, 1999 WL 107104 (5th Cir. Feb. 26, 1999), and second, because Faragher does not address punitive damages.