GEORGE Z. SINGAL, District Judge.
Before the Court is Defendant's Motion to Dismiss Plaintiff's Complaint (Docket # 4). For the reasons that follow, the Court GRANTS in part and DENIES in part Defendant's Motion.
A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) tests the "legal sufficiency" of a complaint. Gomes v. Univ. of Me. Sys., 304 F.Supp.2d 117, 120 (D.Me.2004). The general rules of pleading require "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This short and plain statement need only "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal alteration and citation omitted). However, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (internal quotation and citation omitted). In distinguishing sufficient from insufficient pleadings, which is "a context-specific task," the Court must "draw on its judicial experience and common sense." Id. at 1950.
Plaintiff Angela Bodman worked for the State of Maine Department of Health and Human Services ("Maine DHHS" or "Defendant") for just shy of four and a half years, starting in February 2004 and culminating with her resignation on June 20, 2008. As a Family Independence Specialist in its office in Portland, Maine, Bodman worked with low-income individuals and families. Bodman had a "stellar" employment record at Maine DHHS prior to her resignation. (Compl. (Docket # 2) ¶ 30.)
While working at Maine DHHS, Bodman began dating one of her co-workers, Michael Damon. Damon left his position at Maine DHHS at some point during the course of this relationship; he remained in the social services field, however, and continued to have professional interactions with various individuals in Bodman's office. After several months, Bodman attempted to extricate herself from what had become an abusive relationship with Damon.
But Damon refused to leave Bodman alone after the relationship ended, and instead "harassed [her], vandalized her property, slashed her tires, defamed her, and repeatedly violated her privacy at work and home." (Compl. ¶ 9.) Damon sent email "tirades" to Bodman's work account, sometimes several times a day, even after she requested for him to stop. (Compl. ¶ 10.) Bodman's efforts to cease relations with Damon were "complicated" by the fact that "Damon's work required him to frequent ... Bodman's place of business." (Compl. ¶ 8.) On November 5, 2007, Bodman sought and obtained a temporary Protection from Abuse Order ("PFA") against Damon ordering him to cease all contact with her. After a full hearing, the temporary PFA became permanent on December 28, 2007.
Bodman informed Maine DHHS of both Damon's conduct as well as her efforts to secure the PFA. Maine DHHS made some initial, but unsuccessful, attempts to protect her from contact with Damon in the work setting. Maine DHHS subsequently "gave up all efforts to protect" Bodman, (Compl. ¶ 13.), ignoring her safety concerns and failing to take any additional steps to protect her from future harassment by Damon in the workplace.
On May 7, 2008, Bodman sent what she considered to be a confidential email request for Damon to be banned from participating on the Maine DHHS softball team due to her concern that such contact with Maine DHHS staff in a non-professional context would only accelerate and perpetuate the harassment. The Maine DHHS employee who received this email forwarded it on to Damon. Based on this email, Damon sought a court order amending the PFA to allow his participation on the team.
Bodman again contacted her supervisor and other staff at Maine DHHS regarding her concerns about the ongoing professional and quasi-professional relationship between Damon and Maine DHHS staff. Because Bodman felt that she was not offered any solutions, she filed a Union grievance. Maine DHHS did nothing in response to this grievance, and instead denied its existence. Feeling that she was
Based on the foregoing factual allegations, Bodman alleges that Defendant violated state and federal law when it failed to take meaningful steps to enforce her Protection from Abuse Order in the workplace and thereby protect her from ongoing harassment by an ex-Maine DHHS employee. Before turning to Defendant's substantive arguments as to why Plaintiff has failed to state a claim, the Court must note that Plaintiff's Complaint is not a model of clarity. Plaintiff styles the Complaint as having four separate counts: (1) "Constructive Discharge" with no statutory reference; (2) "Hostile Work Environment" with reference to "both the Maine Human Rights Act and Title VII of the Civil Rights Act of 1964;" (3) "Sexual Harassment" with reference to "both the Maine Human Rights Act and Title VII of the Civil Rights Act of 1964;" and (4) "Violation of the Whistleblower's Protection Act" with reference to "the state and federal Whistleblower's Protection Acts." (Compl. at 4-6.) As to all four counts, Bodman seeks money damages and "any other relief that is just and proper under the circumstances." (Id.) The Court will consider each of Bodman's claims, but will do so in a slightly different order.
In Counts I-III of the Complaint, Bodman alleges that when Maine DHHS failed to respond to her requests for protection from abuse in the workplace, she was subjected to harassment and a hostile work environment, which led to her constructive discharge, all in violation of the Maine Human Rights Act, 5 M.R.S.A. §§ 4551-4634 ("MHRA") and Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2, et. seq. ("Title VII").
In Count II, Bodman alleges that Defendant subjected her to a hostile work environment in violation of both federal and Maine law. To prove a claim of hostile work environment, a plaintiff must establish six elements:
Agusty-Reyes v. Dep't of Educ., 601 F.3d 45, 52 n. 6 (1st Cir.2010). "`Subject to some policing at the outer bounds,' it is for the jury to weigh those factors and decide whether the harassment was of a kind or to a degree that a reasonable person would have felt that it affected the conditions of her employment." Marrero v. Goya of P.R., Inc., 304 F.3d 7, 18 (1st Cir.2002) (citation omitted). While "[t]he harassing conduct need not be overtly sexual in nature," to constitute hostile work environment sexual harassment, Rosario v. Dep't of Army, 607 F.3d 241, 246-47 (1st Cir. 2010), courts have long stressed that the hostile work environment standards are "sufficiently demanding to ensure that Title VII does not become a general civility code," Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (internal quotation and citation omitted).
In the pending motion, Defendant argues that Bodman fails to allege sufficient facts to satisfy the third required element of a sexual harassment claim—i.e., she makes no showing that the above-described harassment was directed at her because of her gender.
Defendant asserts that these allegations are insufficient to survive a motion to dismiss because "[s]imply being a woman is not enough to state a claim[; t]he harassment must have been directed at her because of her protected class status." (Def.'s Reply (Docket # 7) at 2.) In support of this argument, Maine DHHS relies exclusively upon Forrest v. Brinker International Payroll Co., 511 F.3d 225 (1st Cir.2007). Forrest involved a plaintiff who claimed a co-worker with whom she had an on-again, off-again romantic relationship created a hostile work environment. The District Court found that the plaintiff only proffered evidence of "personal animosity stemming from their failed relationship," and this was insufficient to survive summary judgment on a Title VII claim. Id. at 229. The First Circuit reversed this finding, emphasizing that "[n]owhere does prior case law suggest that certain types of
The First Circuit's analysis in Forrest reflects its review of the district court's grant of summary judgment. Thus, the parties before it had the opportunity to engage in discovery and were expected to present a complete factual record.
Looking at the facts alleged in the complaint in the light most favorable to Plaintiff, the Court finds there to be sufficient circumstantial evidence to suggest that Damon's behavior towards Bodman was triggered by more than personal animosity. "Presumably the prior relationship would never have occurred if the victim were not a member of the sex preferred by the harasser, and thus the victim's sex is inextricably linked to the harasser's decision to harass." Forrest, 511 F.3d at 229.
Rosario, 607 F.3d at 248-49. See also O'Rourke v. City of Providence, 235 F.3d 713, 730 (1st Cir.2001) ("[I]ncidents of nonsexual conduct—such as work sabotage, exclusion, denial of support, and humiliation—can in context contribute to a hostile work environment[.]").
While the Court is unsure that Bodman ultimately will prove her entire prima facie case—and particularly whether she will be able to overcome the substantial hurdle of establishing that there is some basis for imputing to Defendant liability for the harassing conduct of Damon, a non-employee
Notably, Defendant does not have a stand-alone argument for dismissal of Count III. Rather, Defendant primarily seeks to dismiss this Count based on the same argument as Count II. Nonetheless, in the Court's view, Plaintiff has failed to state a claim for sexual harassment above and beyond her hostile work environment claim just discussed.
In Count I, Bodman again recites the same legal theory that she also states in Counts II and III. She alleges that Damon's sexual harassment led to the creation of a hostile work environment. She further contends that as a result of Maine DHHS's failure to act in response to her complaints about Damon's behavior, her working conditions became so intolerable that she was left with no choice but to resign from her position—that is, she was constructively discharged. Maine DHHS points out that Bodman fails to identify under which state or federal law she is bringing a claim of "constructive discharge." Defendant does not allege such an omission necessarily to be fatal. Rather, Defendant asserts that the Court should dismiss Count I because constructive discharge is not a "stand-alone claim." (Def.'s Reply at 2 n. 1.)
Constructive discharge technically is a "compound" rather than an independent claim. See Pa. State Police v. Suders, 542 U.S. 129, 147, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004). Thus, "[a]lleging constructive discharge presents a `special wrinkle' that amounts to an additional prima facie element." Landrau-Romero v. Banco Popular De Puerto Rico, 212 F.3d 607, 613 (1st Cir.2000) (citation omitted). A plaintiff who is successful in proving constructive discharge may be entitled to recover two sets of damages: damages flowing from the hostile work environment itself (i.e., compensatory damages and possibly punitive damages) as well as damages flowing from the loss of her job (most notably back pay and front pay). See generally 42 U.S.C.A. § 1981a(a)(1).
The Court remains cognizant, however, that the constructive discharge standard is more onerous than the hostile work environment standard. From the facts alleged in the complaint, it is plausible that Bodman suffered from "working conditions so intolerable that a reasonable person would have felt compelled to resign." Pennsylvania State Police, 542 U.S. at 147, 124 S.Ct. 2342. Plaintiff alleges that she informed Maine DHHS of Damon's harassing behavior and her court order. Her complaint makes clear that Damon continued to have both professional and nonprofessional interactions (e.g., the softball league) with Maine DHHS employees even after she informed her employer of the harassing conduct. She additionally alleges that Maine DHHS made few—if any— efforts to protect her from harassment by Damon in the workplace. Finally, she states that she only resigned from her
If these facts are assumed to be true, as they must be at this stage in the proceeding, the Plaintiff has proffered sufficient facts to establish such intolerable working conditions that a "reasonable person in [her] shoes would have felt compelled to resign," Lee-Crespo v. Schering-Plough Del Caribe Inc., 354 F.3d 34, 45 (1st Cir. 2003) (citation omitted), and that as such, she was constructively discharged. See, e.g., Hall v. FMR Corp., 667 F.Supp.2d 185, 202 (D.Mass.2009) ("A constructive discharge may also occur when an employer effectively prevents an employee from performing her job."). As such, the Court DENIES Defendant's motion to dismiss Count I.
What remains is Plaintiff's allegation in Count IV that Maine DHHS violated Maine's Whistleblowers' Protection Act ("MWPA"), 26 M.R.S.A. § 831 et seq., when, in response to her reports of unlawful conduct and harassment to her supervisors, it "imposed more burdens on [her], including harsh treatment, unlawful discrimination[,] shame, additional harassment, exposure to further violent acts, and derogatory conditions." (Compl. ¶ 46.) Bodman additionally asserts that, because Maine DHHS's "reaction to her reporting [of] her treatment was to increase the severity of the unlawful acts," she "was forced to resign her position to protect herself." (Compl. ¶ 47.) Defendant argues that Bodman fails to establish a prima facie retaliation claim for a violation of the MWPA.
"The MHRA provides a right of action to persons who have been subject to unlawful discrimination, including whistle-blowers who have suffered retaliatory discharge or other adverse employment actions." Costain v. Sunbury Primary Care, P.A., 954 A.2d 1051, 1053 (Me.2008). See also 5 M.R.S.A. §§ 4572(1)(A), 4621; 26 M.R.S.A § 833. The Law Court has established that there are three elements to a claim of unlawful retaliation: "(1) the employee engaged in activity protected by the statute; (2) the employee was the subject of an adverse employment action; and (3) there was a causal link between the protected activity and the adverse employment action." Costain, 954 A.2d at 1053. This District recently remarked in passing that establishing such a prima facie case is not a demanding task. Osher v. Univ. of Maine Sys., 703 F.Supp.2d 51, 64-65 (D.Me.2010) (citations omitted).
Under the MWPA, an employee has engaged in protected activity if she
There are, however, at least two instances where the Plaintiff plausibly did engage in protected activity: (1) she complained to her "supervisor and other staff" when a co-worker forwarded to Damon her email requesting that Damon be excluded from participation on the agency softball team because of his harassment; and (2) she filed a Union grievance, the contents of which the Court assumes were related to both the softball incident and the harassment in her work environment, to which her employer did not respond. Taking the facts pled by the Plaintiff as true, Bodman complained about conduct by another employee, which she considered to be a breach of confidentiality, to an individual who could address the violation; this satisfies the protected activity element of the MWPA prima facie case. See, e.g., Osher, 703 F.Supp.2d at 67-68; Roussel v. St. Joseph Hosp., 257 F.Supp.2d 280, 286 (D.Me.2003).
Defendant next argues that Plaintiff does not plead sufficient facts to establish the additional prongs of her MWPA claim because she fails to establish "that she had no reasonable alternative to resignation because her employer created intolerable working conditions." (Mot. to Dismiss at 7.)
As explained above, Defendant's Motion to Dismiss is hereby GRANTED IN PART and DENIED IN PART. In accordance with this ruling, Count III and any federal claim in Count IV are hereby DISMISSED for failure to state a claim. The Court will allow Plaintiff to proceed with her hostile work environment claim (Count II), her constructive discharge claim (Count I) and her claim under the MWPA (Count IV).
SO ORDERED.
