MADISON — The case of a former town employee who says she was fired after filing a sex discrimination complaint will likely go to trial in federal court, but not on the original charge of gender bias.

U.S. Magistrate Judge John Nivison has recommended that the judge overseeing the case dismissed Joy Hikel’s gender discrimination case, but said there is enough evidence for a jury to decide if the town of Madison illegally retaliated against its former economic development director for complaining about the way she was treated at work.

“The evidence is sufficient to support a finding that Hikel’s charge of sex discrimination turned the board and the town manager against her and were the cause for the end of her employment and other adverse actions,” Nivison said in a recommendation to the presiding judge on the town’s bid to have the case dismissed.

The town has 14 days to file an objection to the recommendation becoming final, but such magistrate judge recommendations are rarely overturned.

“When I complained about gender discrimination I was treated differently and very poorly and it really damaged my career,” said Hikel, who says she has struggled to find new employment since her contract with the town of Madison was not renewed in 2012.

“This case isn’t just about me and my life, but it has been really hard. It’s destroyed my retirement and a lot of my professional relationships,” she said Thursday.

Nivison issued a report and recommendation on motions filed by the town for summary judgement, a legal procedure that seeks a ruling finding that even if all the facts claimed by the person filing suit are true, there is no basis for the lawsuit.

The town had sought dismissal of each of the four counts in Hikel’s suit. The magistrate recommended that the court dismiss two of the counts and hold a trial on the other two.

The report said that is evidence that could lead a judge or jury to conclude that Hikel was retaliated against by the town after she complained of sexual discrimination, but not enough evidence for a trial on the sex discrimination claim itself.

Hikel first complained of sex discrimination in a letter to the Board of Selectmen after two male department heads got pay raises and extra vacation time, but she did not.

Hikel said that she was treated differently after her gender discrimination complaint was dismissed by the board. She said town officials excluded her from meetings, moved her office to a smaller space in the back of the building and insisted that her work be subject to extra oversight.

Mark Franco, the town’s attorney, said Thursday he had not reviewed the magistrate’s recommendation and he had no comment other than that the town “vehemently disagrees” with Hikel’s claims. Franco said he plans to file an objection to the report, asking that Judge D. Brock Hornby, who will preside at trial, throw out the two remaining counts and dismiss the suit.

Hikel’s lawsuit, filed in March 2013, charged the town with sex discrimination, retaliation and whistle-blower retaliation. It also claims that her wages were withheld.

Hikel and her lawyer called it a small victory that trial will likely proceed on the retaliation and whistle blower charges.

Nivison acknowledges Hikel’s claims that she was denied a raise and vacation time, that her budget was given extra scrutiny and that her office was moved, but said there is no reason to link these actions to her gender.

“This is something the judge decided, and I trust his judgment,” said Hikel. “At the same time though, I know I was discriminated against. It’s very clear to me that those who have never experienced discrimination have a hard time recognizing it for what it is.”

Hikel’s lawyer, A.J. Greif, said the claim would have been hard to prove because Hikel was in a unique position, with no male employees in the same job to which her treatment could be compared.

The magistrate also said it is possible that Hikel was denied the raise and additional vacation because male employees had been employed longer, although she said she is entitled to those benefits under the terms of her contract.

Even without the sex discrimination claim as part of the case, Greif said he remains confident that the court will uphold Hikel’s retaliation claims.

“I would have never put this case into suit if I didn’t feel very comfortable that a Maine jury is going to be very upset about what happened to Joy,” he said.

Unlike a sex discrimination claim, a retaliation claim does not depend on proof of gender bias. Instead, it claims that her complaints about discrimination led to her being subjected to retaliation, which is against federal law.

Hikel was the town’s economic director from 2008 to 2012.

Her contract was set to expire on June 30, 2012, but she was told in March 2012 it would not be renewed and was forced to take a leave of absence from March 23 through April 5, 2012, according to the lawsuit against the town.

According to the recommended judgment, the town claims that Hikel’s contract was not renewed because Town Manager Dana Berry had an “inability” to work with Hikel. The town claimed Berry’s decision cannot be linked to sex discrimination because her discrimination complaint was filed under Berry’s predecessor, Norman Dean. Dean and Berry each said Thursday that they had no comment on the case.

However, the magistrate’s recommendation said that Berry was aware of Hikel’s complaint and that a judge or jury could conclude that he treated her adversely in response.

According to Nivison’s report, Berry was “in some ways evasive or nonresponsive” and had difficulty recalling the reasons why Hikel’s contract was not renewed. The magistrate also noted that another female former employee of the town submitted a sworn affidavit in the case stating that Berry took a different management approach toward female employees than male employees, viewing the women as “working for him, not with him” and that he micro-manages female staff.

It also states that there is reason to believe the town violated the Maine Whistleblowers’ Protection Act, a state law that prohibits employers from retaliating against employees who complain about what they consider to be a violation of law.

Hikel’s fourth original claim to regain unpaid wages has been dropped because according to state law only employees paid hourly can recuperate lost wages.

Hikel said she is struggling to overcome the stigma of gender discrimination in Maine and the perceptions of prospective employers that she is a complainer. As a result, she said she is thinking of moving to another state. She also said she encourages women to speak up if they feel they are being discriminated against.

“Whether I go away or not, women in Madison are still going to be under this male-pervasive fake-dominance that is sad,” she said. “The men suffer from it because they don’t get the value of the wonderfully performing woman and the women definitely suffer for it in income.”

Rachel Ohm — 612-2368

[email protected]


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