The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. CV-04-328
ELAINE CONNOLLY,
'Plaintiff
ORDER A N D DECISION
HENRIETTA D. GOODALL
HOSPITAL, INC., et als,
Defendants
Elaine Connolly is a registered nurse who was employed by the defendant
Henrietta D. Goodall Hospital, Inc. as a nursing shift supervisor. On August 31, 2004
Ms. Connolly participated in a panel discussion in New York regarding health care that
was sponsored by the Democratic National Committee. While participating in those
discussions Ms. Connolly made comments that were critical of President Bush's health
care policies and made reference to how an unnamed patient at her hospital had
received what she believed to be inadequate rushed care because of his uninsured
status. Her comments were reported in part in a portion of a Portland Press Herald
article of September 1, 2004. These brief comments apparently deeply offended hospital
officials and hds. Connollj r was quickly subjected to a one-day suspension without pay.
Notice of that suspension was sent by the hospital to the Maine Board of Nursing which
licenses Ms. Connolly. ,
The plaintiff filed a seven count complaint in tlus court which included Count I
based on the federal civil rights law found at 42 U.S.C. g1983, Count I1 based on the
Maine Whistleblotvers' Protection Act at 26 M.R.S.A. 55831-et seq., Count I11 based on
the Maine Civil kghts Act at 5 M.R.S.A. §§4681-et seq., Count IV based on contract,
Count V based on defamation, Count VI based on intentional interference with
advantageous economic relations, and Count VII based on the federal Racketeer
Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§I961 and 1962.
The defendants removed this case to United States District Court which
dismissed Counts I and VII. The Court of Appeals affirmed and the remaining counts
were remanded to the Superior Court. The defendants have moved to dismiss Counts
11, I11 and VI. That motion has been briefed and argued.
COUNT I1 - WHISTLEBLOWERS' PROTECTION ACT
~ o u , nI1t was brought pursuant to the Maine "Whistleblowers' Protection Act"
found at 26 M.R.S.A. §§831-et seq. That act protects an employee from a variety of
adverse employment actions if,
"A. The employee, acting in good faith, or a person acting on behalf of the
employee, reports orally or in writing to the employer or a public body
what the employee has reasonable cause to believe is a violation of a law
or rule adopted under the laws of this State, a political subdivision of this
State or the United States. B. The employee acting in good faith, or a
person acting on behalf of the employee, reports to the employer or a
public body, orally or in writing, what the employee has reasonable cause
to believe is a condition or practice that would put at risk the health or
safety of that employee or any other individual. The protection from
discrimination provided in this section specifically includes school
personnel who report safety concerns to school officials with regard to a
violent or disruptive student; and C. The employee is requested to
participate in an investigation, hearing or inquiry held by that public
body, or in a court action."
See 26 M.R.S.A. §833(1).
The Legislature has defined "Public Body" at 26 M.R.S.A. §833(4) as
follows:
"Public body" means all of the following: A. A state officer, employee,
agency, department, division, bureau, board, commission, council,
authority or other body in the executive branch of State Government; B.
An agency, board, commission, council, member or employee of the
legislative branch of State Government; C. A county, municipal, village,
intercounty, intercity or regional governing body, a council, school district
or municipal corporation, or a board, department, commission, council,
agency or any member or employee thereof; D. Any other body which is
created by state or local authority or which is primarily funded by or
through state or local authority, or any member or employee of that body;
E. A law enforcement agency or any member or employee of a law
enforcement agency; and F. The judiciary and any member or employee
of the judiciary.
In this case Ms. Connolly was punished for statements made at a political event.
The question is not whether her statements were accurate or not, whether she should
have been disciplined or not or even whether the hospital should have embraced her
desire for more money for the care of the poor. Rather the question is whether she
reported to the employer or a public body. While she has stated that she had
previously brought her concerns, assuming them to be within the protected reporting
under the Whistleblowersf Protection Act, to the attention of higher level officials at the
hospital she did not directly do so here. Likewise, a panel of officials of any political
party cannot be considered to be a "Public body" as the Maine legislature defined it.
An individual member of the panel, such as the Governor of Iowa, might be within the
meaning of "Public body" in his home state, if Iowa had an identical law, but he is not
within the Maine Legislature's definition of "Public body." The definition of "lJublic
body" is meant to refer to Maine officials and components of Maine government not
Governors, Senators or Representatives from other states. Her comments are not
protected undcr thc htainc Whistleblotvcrs' Protcction Act.
While "prior notice to an employer is not required if the employee has specific
reason to believe that reports to the employer will not result in promptly correcting the
violation, condition or practice", 26 M.R.S.A.§833(2), this exemption only applies if the
employee has, at least, reported a violation or unsafe practice or condition to a "Public
body".
Since the statements were made to a panel sponsored by the Democratic National
Committee which does not contain any individuals who would meet the definition of
"Public body" found at 26 M.R.S.A. §833(4), Count I1 must be dismissed.
COUNT I11 - MAINE CIVIL RIGHTS ACT
Count I11 was brought pursuant to the "Maine Civil fights Act", 5 M.R.S.A.
§§4681-et seq. The Maine legislature has authorized the bringing of a civil action by an
aggrieved person,
"Whenever any person, whether or not acting under color of law,
intentionally interferes or attempts to intentionally interfere by physical
force or violence against a person, damage or destruction of property or
trespass on property or by the threat of physical force or violence against a
person, damage or destruction or property or trespass on property with
the exercise or enjoyment by any other person of rights secured by the
United States Constitution or the laws of the United States or of rights
secured by the Constitution of Maine or laws of the State or violates
section 4684-B, the person whose exercise or enjoyment of these rights has
been interfered with, or attempted to be interfered with, may institute and
prosecute in that person's own name and on that person's own behalf a
civil action for legal or equitable relief."
This law applies to "any person, whether or not acting under color of state law" and
would potentially apply to the hospital and its officials. Also see 5 M.R.S.A. 94684
which makes this proposition even clearer by stating that the protections exist
"regardless of whether the specific interference complained of is performed or
attempted by private parties."
Howcver, in this case there is no allegation of or evidence of the use of physical
force or violence, damage or destruction of property, trespass on property or the threat
of the same. No hospital official lut her, shot her, lynched her, burnt her house,
trespassed upon her property or otherwise violated this law. The Maine Civil kghts
Act was not designed to encompass all potential interferences with civil rights. The
precise words chosen by the Legislature cannot be cast aside. The law focuses on force,
violence, damage or destruction of property or trespass, nolie of which ex~sthere. The
Maine statute expands 42 U.S.C. §1985(3)bul does not include all possible violalions of
Protection, 1998 VIE 198, ¶23, 71 6
civil rights. See Andrezus 21. Dq1i7rtnlent of E~~viri171r/ie1itn1
A.2d 212, 220. Count 111will be dismissed.
COUNT VI - INTERFERENCE WITf-I ADVANTAGEOUS ECONOMIC RELATIONS
Count V1 was brought based on a claimed intentional interference with
advantageous relations. In order to prevzil h4s. Connolly must establish the existence of
a contract or prospeclive eco~~ornir. c , tel-ferclnce ~hrougllfraud or i l l Lirnidal ion
d r t v d ~ ~ c -j11
and damages that are proximately caused by the interference. The loss of the day's pay
can be resolved through Count IV, the contract claim. As the Board of Nursing "voted
to take no action on the provider (Goodall) report and considers the matter closed" the
cause of action in Count VI fails.
The entry is:
Counts 11, I11 and VI of the complaint are dismissed.
Dated: January 6, 2006
Thomas Connolly, Esq. - PL
James Erwin, Esq. - DEFS Paul A. ~ritzschdj
Justice, Superior Court