GEORGE Z. SINGAL, District Judge.
Before the Court is the Motion to Dismiss filed by Defendant David Potter (ECF No. 11) and the Motion to Dismiss filed by Defendants St. John Valley Soil and Water Conservation District, the State of Maine Department of Agriculture, Conservation and Forestry, Duane Theriault, and Kurt Coulombe (ECF No. 12) (collectively, "Defendants' Motions to Dismiss"). The Court also has before it Plaintiff's Motion to Amend Complaint (ECF No. 19). After considering the parties' filings, and for the reasons explained below, the Court GRANTS Plaintiff's Motion to Amend and GRANTS IN PART AND DENIES IN PART Defendants' Motions to Dismiss.
When a party has already amended its pleading once as a matter of course,
The Court discerns no reason to deny Plaintiff's current request to amend her complaint.
The Federal Rules of Civil Procedure require only that a complaint contain "a short and plain statement of the grounds for the court's jurisdiction . . . a short and plain statement of the claim showing that the pleader is entitled to relief; and a demand for the relief sought." Fed. R. Civ. P. 8(a)(1)-(3). The Court assumes the truth of the complaint's well-pleaded facts and draws all reasonable inferences in the plaintiff's favor.
A viable complaint need not proffer "heightened fact pleading of specifics," but in order to survive a motion to dismiss it must contain "enough facts to state a claim to relief that is plausible on its face."
However, "[i]f the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal."
Plaintiff Diane M. Charette was hired on August 26, 2014, to work as the District Coordinator for the St. John Valley Soil and Water Conservation District ("the District"), an agency of the State of Maine. At all material times, the District was governed by a board of five "supervisors" consisting of Defendant David Potter, Chairman; Defendant Duane Theriault, Co-Chairman; Defendant Kurt Coulombe, Treasurer; John "Gene" Desjardins; and Peter Smith. Thomas Schneck was an "associate supervisor." By statute, Defendant Maine Department of Agriculture, Conservation and Forestry ("the Department") exercises some oversight and coordination authority over the various state soil and water conservation districts, including the District. Three of the District supervisors are elected and two are appointed by the Department. Approximately two-thirds of the District budget is controlled by the Department. In addition, the Department operates the first election of the supervisors it does not appoint, has promulgated rules governing the elections, and issues oaths of office and certificates of election to the supervisors. David Rocque oversees the soil and water conservation districts on behalf of the Department. During her time as District Coordinator, Charette worked out of an office shared with the United States Natural Resources Conservation Service ("NRCS") in exchange for her performing services for them and the NRCS paid some portion of her wages.
In November of 2014, Potter told Charette that she "will not have [her] way with" him and that he would not let her have her way even if she "were to dance naked on the desk." (Second Amended Complaint ("Compl.") (ECF No. 19-1) ¶ 32.) Potter was very stern and angry when he made this comment, and Charette found it to be highly offensive. Prior to a November 12, 2014, supervisors' board meeting, Potter asked Charette to find out how the District could purchase heavy equipment through a State of Maine program that sold reduced-price equipment to public entities. Private individuals and for-profit companies were ineligible to participate in the program. Potter asked Charette to find a list of equipment that was available for purchase and to determine how long the District would have to hold on to the equipment before it could be resold. At that time, the District did not have any projects planned or underway to use heavy equipment. Both Potter and Theriault owned private, for-profit businesses that used heavy equipment. Charette subsequently shared information about the purchase price for heavy equipment pursuant to the program with Potter. At the November 12th meeting, Potter stated that the District could make money by purchasing heavy equipment through the program, holding it for eighteen months, and then selling the equipment to the District supervisors. Theriault commented that he could use a dump truck. Desjardins said that the District needed a reason to purchase the equipment for its own use rather than buying it so that the supervisors could profit by purchasing it afterwards. He said that this practice had been conducted before and the people involved were told to cease the practice immediately. In response, Potter said, "then we'll do it until they tell us to stop." (Compl. ¶ 48.) Charette then stated that she would not do anything illegal. She was concerned that Potter was proposing to misuse government funds for personal gain. Potter became agitated and said to her, "I suppose now you're going to start telling me how to do my job." (Compl. ¶ 51.) In response, Charette stated, "No, I'm just going to say how I'm going to do my job." (Compl. ¶ 52.) Charette could sense lots of anger coming from Potter and she was frightened.
The day after the board meeting, Potter came to Charette's office, said he could not find the resignation letter from a previous District Coordinator, and angrily accused Charette of taking the personnel files of previous District employees. When Charette told him that she had not taken the files, Potter had an outburst and reacted as if she were lying to him. Potter later found the resignation letter at home, but he never apologized for blaming Charette.
Later that week, Desjardins called Charette to ask how things were going with her job. Charette informed him about how Potter had acted towards her and that she was afraid of him. Smith and Schneck both also contacted Charette and she informed them of her concerns about Potter. Theriault also came into the office, at which time an NRCS employee who shared the office with Charette informed Theriault of how Potter had been acting towards her. Potter learned about Charette's complaints about him shortly after she made them. Generally, although Potter had been stern with Charette since the beginning of her employment, he became more hostile towards her after she complained about his conduct. The week of November 17, 2014, Charette tried to contact Potter by phone and by email in order for him to come to the office to sign her payroll check, but he did not respond. Previously, Potter had always been willing to sign Charette's check. Because Potter would not respond, Charette took the check to Coulombe's house for his signature. At that time, Charette informed Coulombe about her interactions with and fear of Potter.
On December 18, 2014, Rocque called Charette and informed her that he could come to a board meeting at any time to discuss any issues she was having. Rocque told Charette that another NRCS employee had contacted him because the employee was very concerned about the way Potter was treating Charette. Charette subsequently checked with Coulombe about Rocque attending a board meeting. Coulombe asked for Rocque's phone number and requested that Charette keep the issue between her and Coulombe. That same day, in relation to Charette's request a week earlier for an upgrade to a newer version of Microsoft Word, which request had been supported by Schneck, Potter wrote to Schneck: "I agree that we should upgrade the software on our laptop next year. But, I see no reason why the work can't be done now on the NRCS computer. It['s] right there in front of her. What am I missing?" (Compl. ¶ 65.)
On December 29, 2014, Potter angrily confronted Charette about working from home on snow days. Charette explained that she had only worked from home on two days during snow storms, and that she had not been told previously that she could not do so. Potter responded that the issue would be addressed with the board. Charette was very uncomfortable during this discussion because she could feel that Potter was very angry at her. The next day, Potter circulated a memo to the other supervisors via email criticizing Charette for working from home and reminding her that "[a]s a new employee, you are still within the six month probationary period." (Ex. A to Compl. (ECF No. 19-2), Page ID # 237.) After Charette responded by email expressing surprise at Potter's memo, Potter circulated another email stating, in part, that he thought it was "very bad judgment" on her part to work at home without first seeking permission and that she "will need to verify that the [NRCS] office was closed by [an NRCS employee] for `snow days' on the days you worked from home." (Ex. C to Compl. (ECF No. 19-4), Page ID # 239.) Potter later emailed the NRCS employee asking how many days the office had been closed due to bad weather.
On January 6, 2015, Potter emailed Charette and copied the other supervisors accusing Charette of falsely stating to an outside contact that Potter had been forwarding emails to her personal email address. On January 7, 2015, Potter approached Charette at her desk, asked where the applicants' files were for Charette's position, and sternly warned her not to throw them away because she was still on probation. At some point subsequent to these interactions, Charette's doctor recommended that she no longer have any contact with Potter at all because of the high levels of stress and anxiety their interactions caused her.
On January 14, 2015, Charette attended a board meeting with her lawyer to express concerns about Potter's behavior. Although Potter and Theriault did not want to let Charette's lawyer address them, they reluctantly agreed to let him make a brief statement, which he did, expressing that Charette had been subjected to sexual harassment and a hostile work environment by Potter. Charette's lawyer provided the board with a letter—"RE: Representation Notice for Diane Charette/Allegations of Harassment and Sexual Harassment"—stating that he was considering filing a complaint with the Maine Human Rights Commission "against the District and individually against [Potter]." (Ex. F to Compl. (ECF No. 19-6), Page ID # 242.) Charette's lawyer also provided the board with a "Grievance Report" by Charette, a written summary of the incidents between Charette and Potter previously described. During the meeting that followed the lawyer's presentation, Potter stated at least twelve times that Charette was a probationary employee and suggested changes to the personnel policy that adversely impacted her, such as changes addressing administrative leave and snow days.
On January 15, 2015, Charette's husband took her to the emergency room because Charette thought she was having a heart attack. On January 16, 2015, Charette's primary care provider diagnosed her with anxiety disorder due to her reaction to her working environment. The doctor started Charette on anti-anxiety medication and removed her from work, initially for two weeks. The doctor eventually kept Charette out of work until the end of her employment with the District. As a result of her treatment at work, Charette alleges that she developed mental or psychological disorders, including anxiety disorder, depression, and severe panic attacks. These impairments had a duration of more than six months, impaired her health to a significant extent as compared to what is ordinarily experienced in the general population, and substantially limited one or more of her major life activities. Charette filed a Workers' Compensation claim for mental injury caused by mental stress, which was approved. At some point after Charette went out of work, Potter picked up her paycheck from the accountant's office, and it was withheld from Charette for four weeks even though she made several attempts to receive it.
Following the January 14th board meeting, Desjardins and Smith wrote to Rocque expressing concern about recent events in the District. They stated, "Since very early in her working for the District, Mrs. Charette shared complaints with both of us and other members concerning statements and conduct by David Potter towards her." (Ex. H to Compl. (ECF No. 19-8), Page ID # 246.) They further explained that Charette had formally advised the board of her "harassment allegations" at their last meeting.
On January 22, 2015, Charette and her lawyer attended a special board meeting that they understood would address her allegations. Instead, the board went into a special meeting, and Charette and her lawyer were not allowed to participate. In February of 2015, Charette was interviewed by an outside lawyer hired by the District to investigate her allegations.
On May 7, 2015, the District's lawyer wrote to Charette's lawyer offering, on a three-month temporary basis, to return Charette to work under a different supervisor than the Chair, Potter, which required a change to the personnel policy.
Sometime in June, Rocque left Charette phone messages indicating that, if she did not return to work prior to the end of June, the District would not receive certain funds. On June 3, 2015, Charette's lawyer wrote to the District's lawyer expressing concern about the way the June 2nd meeting was handled and the way Charette was being treated; requesting that Charette's job duties and the personnel policies revert back to how they were before she went out of work; and requesting that she be informed of the results of the outside lawyer's investigation. On June 26, 2015, the District's lawyer responded in a letter to Charette's new lawyer, reiterating the offer to change Charette's immediate supervisor on a trial basis and stating that Charette would not be provided with a copy of the outside investigator's report. On July 14, 2015, Charette's lawyer responded by letter that Charette had a mental disability that prevented her from having contact with Potter, and, for that reason, that she was asking for a reasonable accommodation that she not have contact with him after she returned to work. Charette's lawyer stated that Charette was medically unable to return to work under the arrangement proposed by the District. He further stated that he needed some assurance that Charette's complaints were being taken seriously, that appropriate discipline was imposed, and that further harassment would not occur. He also requested that he be sent a copy of the current personnel policy and the date of any revisions in order to identify what policies Charette would like to revert back. (
On August 3, 2015, the District's lawyer responded to Charette's lawyer, indicating that Potter had recused himself from any matters relating to Charette's status; requesting that Charette's doctor complete a form to support her reasonable accommodation request; and enclosing a copy of the motions that were passed at an executive session of the board on April 29, 2015, including an amendment to the personnel policy to allow someone other than the Chair to directly supervise the District Coordinator. (
On October 21, 2015, the District's lawyer wrote to Charette's lawyer proposing a return to work plan pursuant to which, on a two-month trial basis, Charette would return to her position with Smith as her supervisor and would be excused from attending board meetings, but would only work 20 hours per week (as opposed to 32), with a second employee working the rest of the week, attending board meetings, and handling all communications with Potter. (
On November 23, 2015, the District's lawyer responded by reiterating that the board would like to proceed with their proposed return to work plan and rejecting Charette's counteroffer because "[t]he District considers attendance at Board meetings and communication with the Board Chair to be essential job functions which would not be required to be eliminated as a reasonable accommodation." (Ex. S to Compl. (ECF No. 19-19), Page ID # 267.) The District's lawyer also attached the current personnel policy and noted again that the policy had been amended on April 29, 2015, to allow Smith's supervision of Charette.
On December 8, 2015, Charette sent a letter to the supervisors officially resigning her position and stating, in part:
(Ex. T to Compl. (ECF No. 19-20), Page ID # 268.) Shortly after her resignation, the District hired the man who had been filling in for Charette as her permanent replacement. According to Charette, Potter, Theriault, and Coulombe have treated her replacement courteously throughout his employment without similar treatment as she experienced.
As a preliminary matter, the Court notes that "[a] party may set out 2 or more statements of a claim . . . alternatively or hypothetically, either in a single count . . . or in separate ones" and "the pleading is sufficient if any one of them is sufficient." Fed. R. Civ. P. 8(d)(2). Plaintiff has set out multiple theories to support each count in her Complaint, and the Court declines to dismiss a count if any of the individual theories are sufficient to state a claim to relief. Once the Court determines that a count is adequately pleaded to survive a motion to dismiss, the Court will not separately analyze each individual theory if the scope of discovery will not be significantly affected by doing so.
In Count I, Plaintiff alleges that the District is liable under the Maine Human Rights Act ("MHRA") because she was (1) subjected to adverse employment actions because of her sex and because she engaged in activity protected by the Maine Whistleblowers' Protection Act ("MWPA"); (2) subjected to materially adverse actions because she opposed practices that would be a violation of the MHRA and asserted her rights under the Act; (3) subjected to a hostile work environment because of her sex and because she engaged in protected activity under the MWPA and the MHRA; (4) constructively discharged because of her sex, her disability, and because she engaged in activity protected under the MWPA and the MHRA; and because the District (5) failed to engage, in good faith, in an informal, interactive process with her to determine the appropriate reasonable accommodation for her disability and (6) failed to provide her with a reasonable accommodation. (Compl. ¶¶ 132-38.) The Court determines that Plaintiff has stated a plausible claim based on the MHRA as to the District.
The MHRA makes it unlawful on the basis of sex or whistleblowing activity, among other bases, "to discharge an employee or discriminate with respect to hire, tenure, promotion, transfer, compensation, terms, conditions or privileges of employment or any other matter directly or indirectly related to employment . . . ." 5 M.R.S.A. § 4572(1)(A). Under the MWPA, no employer may discriminate against an employee based, among other things, on oral or written reports made in good faith by that employee to the employer of what the employee reasonably believes to be illegal conduct or based on an employee's refusal to engage in illegal conduct. 26 M.R.S.A. § 833(1).
In this case, Plaintiff has stated a plausible claim that she was discriminated against in her employment based on her sex, her conduct in complaining of sexual harassment, and her conduct in speaking against the proposed plan to buy surplus equipment for resale to some board supervisors. On the present record, the Court specifically determines, contrary to Defendants' contention, that Plaintiff has adequately pleaded that she was subject to adverse employment actions, which may include, but are not limited to, the withholding of her paycheck and the changing of personnel policy to impact her job. Further, Plaintiff has alleged that she was at least implicitly threatened with termination, by Defendant Potter in particular, and threats to terminate a plaintiff based on whistleblowing activity are actionable.
Defendants cite cases in which courts have emphasized that "[a]n adverse employment action typically involves discrete changes in the terms of employment, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits."
For these reasons, the Court DENIES the Motion to Dismiss as to the MHRA claims against the District.
In Count II, Plaintiff alleges the same violations of the MHRA by the Department as she alleges against the District. (Compl. ¶¶ 140-45.) In Count VII, Plaintiff alleges that the Department is liable under the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794, because she was constructively discharged because of her disability; because it failed to engage, in good faith, in an informal, interactive process with her to determine the appropriate reasonable accommodation; and because it failed to provide her with a reasonable accommodation. (Compl. ¶¶ 157-59.) In Count VIII, Plaintiff alleges that the Department is liable under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2, because she was subjected to adverse employment actions because of her sex; because she was subjected to materially adverse actions because she opposed practices that would be a violation of Title VII; because she was subjected to a hostile work environment because of her sex; and because she was constructively discharged because of her sex. (Compl. ¶¶ 161-64.)
Plaintiff does not dispute that the MHRA, the Rehabilitation Act, and Title VII only apply to the aggrieved party's "employer" in the employment discrimination context. Defendants contend that Plaintiff has not pleaded sufficient facts to indicate that the Department, as opposed to the District, was Plaintiff's employer. Both sides agree that, in determining whether the Department was Plaintiff's employer within the meaning of the MHRA, the Rehabilitation Act, and Title VII, the Court should consider whether the Department was a "joint employer" or "integrated enterprise" with the District despite the fact that Plaintiff was technically an employee of the District. Because the Court concludes that the "joint employer" test is inapposite,
Although there is some lack of clarity about the dispositive elements of an integrated enterprise, the First Circuit generally has considered the extent to which there exists between separate entities "(1) interrelation of operations; (2) common management; (3) centralized control of labor relations; and (4) common ownership."
Granting that it is not entirely easy to apply the integrated enterprise inquiry to the relationship between the District and the Department, the Court concludes that Plaintiff has not alleged sufficient facts to plausibly claim that the two entities are an integrated enterprise. Plaintiff has not plausibly alleged that the Department and the District exhibit interrelated operations or common management. Most importantly, she has not plausibly alleged that the Department exercises control over the hiring or firing of the District Coordinator, controls the Coordinator's day-to-day job performance, sets the personnel policies for the position, or otherwise exercises control over the position beyond the conclusory allegation that the Department in her case "exercised oversight of her employment-related matter."
For these reasons, the Court GRANTS the Motion to Dismiss the claims against the Department.
Plaintiff also brings MHRA claims against Potter, Theriault, and Coulombe, individually and in their official capacities, because they "interfered with Plaintiff's right to be free from discrimination and retaliated against Plaintiff because she opposed unlawful practices under the MHRA." (Compl. ¶¶ 147, 149 & 151.) The Court, however, agrees with Defendants that there is no individual liability under the MHRA. In
Plaintiff attempts to cabin
Plaintiff offers two major arguments to the contrary. She contrasts the use of "a person" in Sections 4633(1) and 4633(2) with the use of "employer" in Section 4572(1)(A). She also contends that the Maine Human Rights Commission has adopted the position that the MHRA provides for individual liability pursuant to Sections 4633(1) and 4633(2).
For these reasons, the Court GRANTS the Motions to Dismiss as to the MHRA claims against Potter, Theriault, and Coulombe.
In Count VI, Plaintiff alleges that the District is liable under the Rehabilitation Act because she was constructively discharged because of her disability; because it failed to engage, in good faith, in an informal, interactive process to determine an appropriate reasonable accommodation; and because it failed to provide her with a reasonable accommodation. (Compl. ¶ 153-55.) To state a claim for disability discrimination under the Rehabilitation Act, a plaintiff must allege "(1) that she was disabled within the meaning of the [Rehabilitation Act]; (2) that she was able to perform, with or without reasonable accommodation, the essential functions of her job; and (3) that the adverse employment decision was based in whole or in part on her disability."
The Court readily determines that Plaintiff has adequately pleaded a plausible claim of failure to provide a reasonable accommodation.
For these reasons, the Court DENIES the Motion to Dismiss as to the Rehabilitation Act claim against the District.
In Counts IX through XI, Plaintiff alleges that Defendants Potter, Theriault, and Coulombe, in their individual and official capacities, violated her constitutional equal protection rights "by discriminating against Plaintiff because of her sex, failing to stop the retaliation against Plaintiff for complaining about sexual discrimination, and by [themselves] retaliating against Plaintiff for complaining about sexual discrimination." (Compl. ¶¶ 166, 168 & 170.) "When a plaintiff attempts to use § 1983 [i.e., bring a civil action based on the deprivation of constitutional rights] as a parallel remedy to a Title VII claim, the prima facie elements to establish liability are the same under both statutes."
The Court is unconvinced by Plaintiff's arguments to the contrary. Specifically, the cases Plaintiff cites for the proposition that Title VII and Equal Protection claims have entirely identical elements only stand for the proposition that the analytical framework for showing discriminatory intent is the same for both types of claims.
In her Amended Complaint, Plaintiff does allege that "[b]ased on information and belief, Defendants Potter, Theriault, and Coulombe have treated Plaintiff's [male] replacement courteously throughout his employment without similar conduct to that directed at Plaintiff." (Compl. ¶ 128.) The Court notes that a plaintiff asserting an Equal Protection claim cannot "rest on subjective characterizations or conclusory descriptions of a general scenario which could be dominated by unpleaded facts."
For these reasons, the Court DENIES the Motions to Dismiss as to the Equal Protection claims against Potter, Theriault, and Coulombe.
Finally, in Counts XII through XIV, Plaintiff alleges that Defendants Potter, Theriault, and Coulombe, in their individual and official capacities, violated her First Amendment rights "by failing to stop the retaliation against Plaintiff for complaining about matters of public concern, and by [themselves] retaliating against Plaintiff for complaining about matters of public concern" (Compl. ¶¶ 172, 174 & 176.) Plaintiff specifies that the alleged retaliation was "for speaking against Potter's plan to misuse government funds to purchase heavy equipment; for reporting to the Supervisors and [the Department] retaliation by Potter for her refusal to engage in illegal activity; and for reporting to the Supervisors and [the Department] sexual harassment by Potter." (Pl.'s Obj. to Defs.' Mots. to Dismiss, Page ID #s 300-01.) "[T]o prevail on a § 1983 claim of retaliation for First Amendment activity, a plaintiff must show: (1) that [her] conduct was constitutionally protected, and (2) that this conduct was a substantial factor or a motivating factor for the defendant's retaliatory decision."
First, the Court cannot determine at this stage that Plaintiff was not speaking as a citizen when she raised an issue with the plan to purchase surplus property.
Second, it is plausible that the plan to buy the surplus equipment is a matter of public concern because it involves potential corruption and misuse of public funds.
For these reasons, the Court DENIES the Motions to Dismiss as to the First Amendment claims against Potter, Theriault, and Coulombe.
For the foregoing reasons, the Court GRANTS Plaintiff's Motion to Amend Complaint (ECF No. 19); GRANTS IN PART Defendants' Motions to Dismiss (ECF Nos. 11 & 12) and DISMISSES Counts II, III, IV, V, VII, VIII; and otherwise DENIES IN PART Defendants' Motions.
SO ORDERED.
The Court notes that there may be a legal question regarding whether an employer is required to engage in an "interactive process" to determine the appropriate reasonable accommodation under the MHRA, as opposed to federal law.
