Ruling unanimously in Russell v. ExpressJet Airlines, Inc., 2011 ME 123 (Dec. 6, 2011), the Maine Supreme Judicial Court affirmed an award of $500,000 damages to Edward Russell, who persuaded a jury that he had been the victim of employment discrimination based on his sexual orientation in violation of the state's Human Rights Act.
Edward Russell joined Continental Express in Portland as an agent in 1998, and was promoted to supervisor the following year. When ExpressJet opened in Portland in April 2002, Russell joined ExpressJet as a supervisor. At the time, the general manager of ExpressJet's Portland station was a gay man. Russell is openly gay.
Around October 2003, Russell learned that three women had filed a discrimination complaint against the company, alleging that ExpressJet only hired gay men for management positions. Soon after, the gay man who was managing the Portland station left, and Russell assumed his duties with the help of another supervisor. According to testimony offered at trial, Russell "essentially ran the station and did an excellent job," but when he spoke with ExpressJet's regional director about becoming the general manager in Portland, that individual said it was "not going to happen," but provided no explanation. When Russell approached him a second time, the executive said that ExpressJet had just gotten out of "a boiling pot of water," which Russell understood to be a reference to the three women's complaint. He was again told it was "not going to happen" and he shouldn't waste his time.
When somebody else was hired to be general manager in Portland, Russell helped to familiarize the new general manager with the position. The new general manager referred to Russell as his "right hand man" and said he did a "fantastic job." But a new regional director told the new manager he would be better off if he fired Russell. The new manager declined to do so and left on medical leave, after which several general managers were hired for short periods of time, and Russell filled in between new managers. Although Russell expressed renewed interest in becoming general manager in Portland, he received negative responses, and once was told there was an ExpressJet policy of not promoting station staff to the general manager position, although it was not a written policy.
In December 2006, Russell left messages with ExpressJet's Human Resources Department complaining about unfair hiring practices, but his calls were not returned. Then a new general manager was appointed, who told another employee in Russell's presence that the Portland station needed to "clean house" and that "homosexuals" are "an abomination in God's eyes." Russell again contacted the regional director about his interest in promotion, and was told to apply for openings in other states, but then that there were no openings for him. He finally resigned in April 2007, and filed this discrimination claim.
A jury found in Russell's favor and awarded total damages of $1.047 million, which the trial judge reduced to the statutory limit of $500,000, and ExpressJet appealed.
ExpressJet argued that as Russell had never formally applied for promotion and thus had never been formally rejected, he could not claim discrimination in denying him a promotion, but the court found that the "futility exception" applies in this case. Under the futility exception, as developed by the Supreme Court in Teamsters v. U.S., 431 U.S. 324 (1977), under Title VII of the federal Civil Rights Act, "when a person's desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture, he is as much a victim of discrimination as is he who goes through the motions of submitting an application." Maine follows Title VII case law in interpreting and applying its own Human Rights Act. The court rejected ExpressJet's argument that the futility exception applies only in class action cases involving widespread discrimination, such as the Teamsters case quoted above.
"Although we conclude that an individual plaintiff may avail himself or herself of the futility exception even in the absence of widespread or pervasive discrimination by an employer," wrote Justice Mead, "we recognize that the exception is a narrow one." The court said it would only apply if there was "affirmative proof that applying for a specific position would have been futile based upon the employer's discriminatory actions or statements." In this case, the evidence was clear. Russell was repeatedly told that it "was not going to happen," that he should not waste his time applying, and the last manager appointed before he resigned had made openly homophobic remarks in his presence. In addition, he presented direct evidence that he was qualified to do the job. The court found that "the record contains sufficient evidence to support the jury's finding that the statements and actions of ExpressJet's management made it futile for Russell to apply for the general manager position."
The court also rejected ExpressJet's argument that the trial court applied the wrong statutory cap to the damages. Under the Maine statute, there is a cap of $50,000 for small businesses and $500,000 for large businesses, defined in terms of the number of their employees. ExpressJet argued that its Maine office was small enough to be covered by the lower cap, but the court found that the legislature did not intend that the statute be construed that way. Rather, all of ExpressJet's employees, wherever employed, were to be counted, and ExpressJet clearly exceeded the 500-employee statutory number for application of the higher cap.
Finally, ExpressJet argued that the jury verdict, including emotional distress damages, was excessive, and that its post-trial motion to that effect should have been granted. The court found no abuse of discretion by the trial court, pointing out that the record contained evidence that Russell sought treatment for "stress, anxiety, and depression," and that "his symptoms persisted when he returned to work and he had to stop seeking treatment because it was difficult for him to afford therapy and medication." This was enough evidence, ruled the SJC, to support a jury award of compensatory damages, and the trial judge had properly instructed the jury not be swayed by "passion, prejudice or sympathy."
Thus, the ruling on appeal was a clean sweep for Russell.