Savage v. Maine Pretrial Svs.

STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss. CNILACTION

DOCKET NO: CV-11-326

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Plaintiff

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v.

RECEJVED

MAINE PRETRIAL SERVICES,

Defendant

ORDER ON DEFENDANT'S MOTION TO DISMISS

Before the court is the defendant, Maine Pretrial Services, Inc.'s, Motion to

Dismiss all claims asserted in the plaintiff's Complaint. The motion has been

fully briefed and oral argument was heard on January 3, 2012.

BACKGROUND

Jody L. Savage ("Plaintiff") was employed by Maine Pretrial Services, Inc.

("Defendant") between June 1, 2009 and June 28, 2010 as a Case Manager for the

Family Treatment Drug Court in Androscoggin County. (Compl. <JI 4.) On or

about March 1, 2010, Plaintiff met with her supervisor to discuss her interest in

applying for a license to open a registered medical marijuana dispensary under

the Maine Medical Use of Marijuana Act, 22 M.R.S. §§ 2421-2430-B (2010)

("MMUMA"). (Compl. <JI 5.) Several additional meetings and communications

regarding the Plaintiff's interest were held following the initial meeting. (Compl.

<JI 6.)

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The Plaintiff alleges that, beginning on or about April12, 2010, through

the termination of her employment, she was repeatedly criticized and subjected

to disciplinary action for, inter alia, her work attire and implementation of the

comp-time policy, despite not having changed her actions from before April12,

2010. (Compl. <]I 7.) She also alleges that at a professional conference in Boston,

which she attended between June 1 and June 4, 2010 along with colleagues and

supervisors from Maine Pretrial Services, she was "treated rudely" and subject to

"gender-based employment discrimination by one of her supervisors." (Compl.

<JI<JI 8-9.) On or about June 7, 2010, the Plaintiff reported to her supervisor that

she had been subject to gender-based discrimination by another supervisor.

(Compl. <]I 10.) On June 28, 2010, the Defendant terminated the Plaintiff's

employment. (Compl. <]I 11.)

The Plaintiff filed a timely Charge of Discrimination with the Maine

Human Rights Commission pursuant to the Maine Human Rights Act, 5 M.R.S.

§§ 4551-4634 (2011) ("MHRA"). (Compl. <]I 12.) On June 3, 2011, the Plaintiff

obtained a Notice of Right to Sue from the Commission. (Compl. <]I 13.) She filed

the Complaint in this action on July 22,2011 alleging violations of the MMUMA,

the MHRA, the Maine Whistleblower' s Protection Act, and asserting claims of

intentional and negligent infliction of emotional distress. The Defendant's

Motion to Dismiss for failure to state a claim was filed on September 8, 2011. The

Plaintiff opposed the motion on October 18, 2011 and the Defendant filed its

reply on October 27,2011.

DISCUSSION

"A motion to dismiss tests the legal sufficiency of the complaint." Heber v.

Lucerne-in-Maine Village Corp., 2000 ME 137, CjJ: 7, 755 A.2d 1064, 1066 (quoting

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McAfee v. Cole, 637 A.2d 463,465 (Me. 1994)). The court examines "the complaint

in the light most favorable to the plaintiff to determine whether it sets forth

elements of a cause of action or alleges facts that would entitle the plaintiff to

relief pursuant to some legal theory." Id. (quoting McAfee, 637 A.2d at 465). "For

purposes of a 12(b)(6) motion, the material allegations of the complaint must be

taken as admitted." McAfee, 637 A.2d at 465. "Dismissal is warranted when it

appears beyond a doubt that the plaintiff is entitled to no relief under any set of

facts that [s]he might prove in support of [her] claim." Johanson v. Dunnington,

2001 ME 169, <J[ 5, 785 A.2d 1244.

Rule 8 of the Maine Rules of Civil Procedure states that a pleading setting

forth a claim for relief must contain (1) a short and plaint statement of the claim

showing that the pleader is entitled to relief and (2) a demand for relief. M.R.

Civ. P. 8(a). Under this standard of notice pleading, "the purpose of the

complaint is to provide defendants with fair notice of the claim against them .... "

Bowen v. Eastman, 645 A.2d 5, 7 (Me. 1994). Recent federal cases have suggested

that pleading requires something more than this. See Ashcroft v. Iqbal, 556 U.S.

662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). While notice

pleading is the standard in Maine, the plaintiff does need to plead sufficient facts

for the court to conclude that relief, under some legal theory, would not be

speculative. Burns v. Architectural Doors & Windows, 2011 ME 61, <J[17, 19 A.3d

823.

Count I- Violation of MMUMA

The Plaintiff alleges that the termination of her employment was a

violation of the MMUMA because her activities were "authorized conduct"

under the statute and disciplinary action or termination because of "authorized

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conduct" is prohibited. (Compl. c:_[c:_[ 14-23.) The Defendant moves to dismiss this

count on the grounds that, while operating or being employed by a registered

dispensary may be protected under the statute, the act of applying to become a

registered dispensary is not protected. (De£. Mot. Dismiss 3-6.)

The Plaintiff cites to section 2423-E of the statute as providing protection

for her actions. This section states that "any person whose conduct is authorized

under this chapter may not be ... subjected to any penalty ... or disciplinary action

by a business or occupational or professional licensing board of bureau." 22

M.R.S. § 2423-E. The Defendant has directed the court to section 2428(8-A),

which establishes immunity for principal officers, board members, agents or

employees of a registered dispensary from disciplinary action for conduct in

accordance with this statute, as the applicable law. However, section 2428(8-A)

was not enacted until June 24, 2011 and did not go into effect until September 28,

2011. 1 See P.L. 2011, ch. 207, § B-32. Thus, this section is inapplicable.

"The fundamental rule in statutory construction is that words must be

given their plain meaning and that any statute must be construed as a whole in

order to effectuate the legislative intent." McGillivray v. Royal Ins. Co., 675 A.2d

524, 526 (1996) (intemal quotations and citations removed). The immunity

provision created by section 2423-E applies specifically to "conduct that is

authorized under this chapter." The preceding four sections define "authorized

conduct" but nothing in those sections state that applying to become a registered

dispensary, or even being a registered dispensary, is included in the definition of

"authorized conduct." Furthermore, both prior to April 9, 2010 and after

1

The original act, effective December 23, 2009, contained a similar immunity provision

in section 2428(8). See LB. 2009, c. 1, § 5. Section 2428(8) was repealed, effective April 9,

2010. P.L. 2009, c. 631, § 42. Therefore, there was no immunity provision in section 2428

from April 9, 2010 until September 28, 2011.

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September 28, 2011 actions by a registered dispensary and employees, agents,

board members, and principal officers of registered dispensaries were subject to

the immunity protections in section 2428. Even though this immunity provision

was not in effect at the time of the Plaintiff's termination on June 28, 2010, the

fact of its existence shows that the immunity created by section 2423-E was not

intended to cover actions by registered dispensaries.

The Plaintiff's reliance on section 2423-E is misplaced as, when the statute

is considered as a whole, that provision does not cover the actions of a registered

dispensary. Also, even if the court were to consider expanding the protections

afforded to registered dispensaries to those people applying to become a

registered dispensary, that immunity provision was not in effect at the time of

the Plaintiff's termination. The plain language of the MMUMA and the statutory

scheme considered compel a conclusion that the legislature did not intent to

protect the Plaintiff's actions. The Plaintiff has failed to state a cause of action on

which relief may be granted.

Count III -Violation of the Maine Human Rights Act

The Plaintiff alleges that she was subjected to unlawful gender-based

discrimination by her supervisor and that this discrimination is a violation of

section 4572(1) the MHRA. (Compl. CJICJI 35-42.)

The Defendant argues that the Plaintiff has not met her pleading burden

because she "makes no effort whatever to explain the conduct upon which her

claim is based or offer any factual allegations relating to it." (Def. Mot. Dismiss

8.) The Defendant casts the Plaintiff's allegations that she was "treated rudely"

and "subjected to gender-based employment discrimination" as "bald assertions

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and legal conclusions." (Id.) The Plaintiff simply argues that she has met the

notice pleading standard. (Pl. Opp. 4.)

It does not appear that the Plaintiff is arguing that she was terminated

based on her gender but, rather, that the discrimination that she experienced at

the Boston conference was based on her gender. The facts that the Plaintiff

pleads (that it was a supervisor who treated her differently than other employees

on the basis of gender while at a conference in Boston) contain more than legal

conclusions and bald assertions. However, it is not clear that the alleged conduct

amounts to a violation of the section 4572(1). The relevant part of that paragraph

of the statute states:

It is unlawful employment discrimination ... [to] 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 [because of gender] ....

5 M.R.S. § 4572(1).

It would be speculation for the court to find that alleged conduct was

discrimination as to one of these categories without any additional factual

information as to the contours of the alleged discriminatory action. The

Complaint fails to meet the requirements of notice pleading because it is not clear

that the alleged conduct is in violation of the MHRA. Count III of the Complaint

does not state a cause of action. The Plaintiff however will be permitted to

amend her complaint.

Count IV -Violation of the Maine Whistleblower Act

The Plaintiff alleges that she reported the instance of gender-based

discrimination that occurred at the Boston conference when she returned to work

and that "following the making of this report" her employment was terminated.

(Compl. <JI<JI 48-49.) The Defendant argues that this count should be dismissed

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first because there is no private right of action under the Maine Whistleblower

Act and second, even if captioned as a claim under the MHRA, because she has

not properly alleged a causal relationship between the reporting of the

discrimination and the termination of her employment. The Plaintiff

acknowledges that there is no private right of action under the Whistleblower

Act and that this claim is better captioned as a claim under the MHRA?

The case law makes it clear that the MHRA provides a right of action for

persons subject to unlawful discrimination, including whistleblowers. Costain v.

Sunbury Primary Care, P.A., 2008 ME 142, '1I 6, 954 A.2d 1051. To plead a prima

facie case, the plaintiff must show that "(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." Id.

The Plaintiff has met this pleading burden. She has alleged that she

reported discriminatory conduct. (Compl. '1I 48.) She has alleged that she was

terminated from employment. (Compl. '1I 49.) And, while she has not stated in

the complaint that it was because of the report that she was terminated, her

assertion that "following the making of this report" she was terminated, clearly

implies a causal relationship. Count N states a cause of action.

Count VI - Intentional Infliction of Emotional Distress

The Plaintiff alleges that she has suffered emotional distress as a result of

the extreme and outrageous intentional conduct by the Defendant. The

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Contrary to the Defendant's suggestion, it is not necessary to amend the Complaint because the

standard under a motion to dismiss is to determine ifthe Plaintiff has asserted a claim under any

legal theory. See Foss v. Me. Turnpike Auth., 309 A.2d 339, 342 (1973) ("our task ... is not to test

the sufficiency of the labels employed to describe the act complained of, but to determine, based

upon the factual allegations, whether or not an interest of plaintiffs has been impaired or injured

in such a way as to justify the granting of legal relief').

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Defendant argues that this count should be dismissed because, whatever its

intentional conduct, it is not extreme or outrageous and that the case law reflects

that much more severe conduct has not been held to be extreme or outrageous.

(De£. Br. 13-14.) The Plaintiff argues that the court should not determine whether

she has stated a claim based on the fact-specific holdings of other cases. (Pl. Opp.

5.) As the facts in this case have not been sufficiently developed to make a

judgment as to the element of "extreme and outrageous conduct," it is

inappropriate to dismiss this claim because the Defendant has not proven that

there is no set of facts on which the Plaintiff may be successful. See Doe v.

Clenchy, 2011 Me. Super LEXIS 70, * 16 (April1, 2011) ("whether [the

defendant's] alleged disclosures meet the 'extreme or outrageous' threshold,

necessarily call[s] upon the Court to make findings that are outside the

allegations in the Complaint"). Thus, the Plaintiff has stated a cause of action.

At oral argument the court noted that the section 104 of the Workers'

Compensation Act, 39-A M.R.S. §§ 101-113 (2011), may bar this type of claim.

However, this is an affirmative defense and the facts establishing whether the

Defendant is covered by Workers' Compensation Act have not been presented to

the court.

Count VII- Negligent Infliction of Emotional Distress

The Plaintiff also asserts a claim for negligent infliction of emotional

distress arising from the termination of her employment. To recover on a claim

of negligent infliction of emotional distress, the plaintiff must prove (1) a duty

owed to the plaintiff by the defendant; (2) a breach of that duty; (3) severe

emotional distress suffered by the plaintiff as a result of the breach of the duty;

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and (4) that the emotional distress was a reasonably foreseeable consequence of

the defendant's negligence. See Curtis v. Porter, 2001 ME 158, 784 A.2d 18.

The Defendant argues that this claim should be dismissed because there is

no duty for an employer to avoid causing emotional harm to an employee under

Maine law. The Plaintiff admits that there is no duty under Maine law between

an employer and employee but instead argues that the MMUMA creates a

"special relationship" by establishing protections for people lawfully involved in

the medical use of marijuana. (Pl. Opp. 5.) As the Defendant points out, the

Plaintiff does not cite to any authority to support this novel theory.

The duty to act reasonably to avoid causing emotional harm is a very

limited duty. The Law Court has recognized a duty in claims by bystanders who

have witnessed physical harm to others and when there is a special relationship

in which the plaintiff is extremely vulnerable to mental harm, such as

physician/ patient, funeral home/ family, psychotherapist/ patient,

attorney I client, and adoption agency I adoptive parents. See Berry v. Worldwide

Language Res., 716 F. Supp. 2d 34, 51 (D. Me. 2010) (and cases cited therein). The

employer I employee relationship does not evince the same vulnerability as the

above relationships and the medical use of marijuana statute does not transform

that relationship into one where one of the parties is "extremely vulnerable" to

mental harm. See Gavrilovic v. World Wide Language Res., Inc., 2005 U.S. Dist.

LEXIS 32134, * 89 (D. Me. Dec. 8, 2005) ("I find no Law Court case inferring a

duty, for purposes of [NI]ED, from the existence of a statute.") This claim is does

not state a claim for which relief may be granted.

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Counts II and V

The Plaintiff has agreed to dismissal of these two counts because the relief

requested is not available under Maine law. (Pl. Opp. 1, n.1.)

The entry is:

The Defendant's Motion to Dismiss is GRANTED in part and DENIED in

part. Counts I, II, III, V, and VII are dismissed, leaving counts IV and VI of the

Complaint. The Plaintiff is granted leave to amend Count III.

DATE: January 27,2012

Justice, Superior Court

Plaintiff's Attorney-Lee Bals, Esq.

Defendant's Attorney-Robert Kline, Esq.

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