Sullivan v. Catholic Health East

STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss. CIVIL ACTION

Docket No. CV-13-211

DANIELLE SULLIVAN,

Plaintiff

ORDER

v.

r MAINE

SiAiE 0 C\er\c.'s 0tf1ce

cumberland, ss,

CATHOLIC HEALTH EAST, and

ST. JOSEPH'S REHABILITATION NO'J 0 S 10\4

AND RESIDENCE,

Defendants RE.CE\VED

Before the court are Motions for Summary Judgment from both Defendant Catholic

Health East ("CHE") and Defendant St. Joseph's Rehabilitation and Residence ("St. Joseph's").

Defendants are seeking summary judgment on Plaintiffs Maine Whistleblower Protection Act

("WPA") claims of retaliation and constructive discharge. See 26 M.R.S.A. § 831 et seq. CHE

has joined St. Joseph's Motion as to the argument that PlaintiffDanielle Sullivan's case should

be dismissed because Ms. Sullivan did not suffer an adverse employment action. CHE is also

seeking summary judgment on separate grounds. The court held a hearing on both motions on

September 29, 2014. The court is evaluating both motions concurrently.

I. FACTUAL BACKGROUND:

The following facts are gathered from St. Joseph's statement of material facts, Plaintiffs

opposition and additional statement of material facts, St. Joseph's reply, CHE's statement of

material facts, Plaintiffs opposition and additional statement of material facts, and CHE' s reply. 1

A. Ms. Sullivan's History with St. Joseph's

1

The court notes that some of Plain tiffs additional statements of material fact were unsupported and cannot be

included in the factual background, as they relied on representations Ms. Sullivan made about a supposed

contractual relationship between St. Joseph's and CHE. Ms. Sullivan lacked the personal knowledge required to

make representations about CHE's contractual obligations, and she actually confused or conflated CHE and

CHESSM. See M.R. Evid. 602. The statements are properly controverted by CHE.

St. Joseph's Manor is a Maine non-profit corporation, and it is the third largest skilled

nursing facility in the State. On December 7, 2009, Ms. Sullivan was hired as St. Joseph's

Director of Nursing.

Ms. Sullivan reported to Administrator David Hamlin of Catholic Health East Senior

Services Management ("CHESSM"), and subsequently, Roger Ledoux after he became the

Administrator of St. Joseph's. Mr. Ledoux, also a CHESSM employee, reported to fellow

CHESSM employees Renee Schofield and William Healy. At times, Ms. Sullivan also reported

directly to Ms. Schofield.

In November of 2010, discussions of cost cutting with frontline staffing/care givers arose for

the first time. Cuts for hours per patient day were mandated. Ms. Sullivan felt that cutting costs

would impact residents' health and lead to either negative or potentially negative outcomes for

residents. She complained regarding the cost cutting measures to Mr. Hamlin and Mr. Healy.

Ms. Sullivan also had concerns regarding not being able to express her concerns to the Board

of Directors. Ms. Sullivan complained to human resources following an incident where she felt

her job had been nearly threatened.

In or around September of2011, problems with the admissions process arose. From

September or October of2011u..Tltil her resignation in May of2012, Ms. Sullivan repeatedly

raised concerns regarding admissions. She complained regarding: the admissions process

generally, her belief that St. Joseph's was admitting patients without the necessary paper work or

background information, and that St. Joseph's was admitting some patients whose needs she felt

could not be met by St. Joseph's.

Karen Nickerson assumed the role of admissions director in March of 2012, and the

admissions problems remained after her hiring. Ms. Sullivan repeatedly complained about Ms.

2

Nickerson, as she thought Ms. Nickerson used improper billing procedures and participated in

bullying along with Ms. Schofield.

Ms. Schofield was a clinical consultant from CHESSM who provided services to St. Joseph's

in February of2012, and then began to work on site on April19, 2012. Pursuant to Mr. Healy's

request, Ms. Schofield prepared an audit and marketing plan for St. Joseph's. Together, Mr.

Ledoux and Ms. Schofield completed a master plan to increase revenue.

Ms. Schofield was rude, as she failed to listen to staff, would yell at staff and would refer to

staff as stupid. She and Ms. Nickerson bullied the staff. Both Ms. Schofield and Ms. Nickerson

were overly critical of Ms. Sullivan, and they would rudely and harshly express their criticism.

Ms. Nickerson would send Ms. Sullivan emails advising her how to perform her job. Instead of

consulting with Ms. Sullivan, Ms. Schofield met with Ms. Nickerson behind closed doors.

Ms. Sullivan also felt alienated as her concerns were unaddressed, and she complained to Mr.

Ledoux regarding Ms. Schofield's behavior. Ms. Sullivan also told Mr. Ledoux that changes in

nursing should come from Mr. Ledoux rather than Ms. Nickerson.

In early May 2012, Ms. Sullivan started to be excluded from decision-making processes and

some meetings. She was excluded from a meeting between Ms. Schofield, Mr. Ledoux and a

nurse manager. where tbe parties di.-;cu.'\Sed tbe tnmsfey ofihenursemanager. Ms. Sullivan was

also excluded from meetings regarding admissions. In total, she was excluded from two or three

meetings. In May, Ms. Schofield shuffled Ms. Sullivan's admissions responsibilities to Mr.

Ledoux. For Ms. Sullivan, in May of2012, St. Joseph's was an uncomfortable place to work.

In a meeting between Mr. Ledoux, Ms. Sullivan, and Ms. Schofield, Ms. Sullivan was

accused by Ms. Schofield of not being on board with changes. Ms. Sullivan cried and told Ms.

Schofield that she felt Ms. Schofield did not like her, and Ms. Schofield responded by informing

3

her that it was "ridiculous"; "this is a big girls' game, there's no crying." (SJ's S.M.F. ~ 16.) Ms.

Sullivan felt the situation was strange because she had recently been nominated for and received

a National Leadership Award.

Because of the poor work environment, issues surrounding the admission's process, her

exclusion from meetings, and unwarranted criticism from Ms. Nickerson and Ms. Schofield, Ms.

Sullivan wanted to resign. On Friday May 18, Ms. Sullivan tendered her resignationto Mr.

Ledoux, however, Mr. Ledoux persuaded Ms. Sullivan to withdraw her resignation.

Ms. Schofield and Mr. Healy (Ms. Schofield's superior) drafted a 30-day performance plan

for Ms. Sullivan. On May 21, 2012, Mr. Healy told Ms. Sullivan about the plan, and on May 22,

Mr. Healy issued the written plan to Ms. Sullivan. The written performance notice discussed

eight areas where Ms. Schofield and Mr. Healy felt Ms. Sullivan's job performance was

deficient. The notice gave Ms. Sullivan 30 days to achieve progress in the areas that it covered or

face additional disciplinary action potentially including dismissal, but the plan also noted Ms.

Sullivan's potential and the support available to Ms. Sullivan. Ms. Sullivan maintains that the

deficiencies listed in the written plan were either inaccurate or unwarranted.

Ms. Sullivan complained about the plan to Mr. Ledoux, and she stated that she felt the plan

was retaliatory. In her supervisory role, Ms. Sullivan had issued similar plans to employees, and

did not consider the plans to be acts of retaliation.

During her tenure at St. Mary's, Ms. Sullivan's pay was never reduced, in fact she received a

pay increase, and she was never demoted or transferred.

Ms. Sullivan resigned from her job the day after she received the written notice. Ms. Sullivan

felt that she was going to be forced out and fired, so she felt that she needed to resign. After

submitting her resignation, but prior to leaving St. Joseph's, Ms. Schofield informed Ms.

4

Sullivan that she could no longer undertake some of the management-level decisions regarding

nursing staff. After a few days, Ms. Schofield instructed Mr. Ledoux to escort Ms. Sullivan out

of the building?

B. Catholic Health East, Catholic Health East Senior Services Management, and St. Joseph's

At the times relevant to this case, CHE was a Pennsylvania non-profit corporation with

headquarters in Newtown Square, Pennsylvania. 3 CHE does not own St. Joseph's or any of its

facilities. CHE's corporate structure does not include St. Joseph's, the two entities are not under

common ownership, and no entity that controls CHE controls St. Joseph's. 4

None of CHE' s directors or officers are directors or officers at St. Joseph's. CHE has never

shared offices or administrative support functions, for example human resources, with St.

Joseph's. CHESSM and St. Joseph's had a contractual relationship, whereby CHESSM provided

management services to St. Joseph's in exchange for a fee. CHE did not have a contractual

relationship with St. Joseph's, nor did it provide services to St. Joseph's, nor did it have the

authority to discipline St. Joseph's employees. 5

2

The court notes that Plaintiff stated in paragraph 58 of it additional statement of material facts to both St. Joseph's

and CHE that "Ms. Schofield told Mr. Ledoux to terminate Ms. Sullivan." It is clear from the Plaintiffs filings that

it is arguing that Ms. Sullivan was terminated, however, the Plaintiff's record citation to page 24 failed to support

the quoted statement, and Plaintiff's allegations regarding Ms. Sullivan being terminated cannot come in.

3

Following a merger with Trinity Health Corporation and CHE Trinity Inc., CHE is now a part ofCHE Trinity

Health, which is an Indiana entity, but it is headquartered in Livonia, Michigan. (CHE S.M.F. ~ 2; Pl.'s Opp. To

CHE~2.)

4

The court notes that Plaintiff"Den[ied] that CHE had no control over SJRR. CHE has substantial control over

SJRR and Ms. Sullivan." (Pl.'s Opp. to CHE ~ 17.) Plaintiff failed to properly cite to the record to support its

assertion, however. See M.R. Civ. P. 56(h)( 4). Instead, the Plaintiff cited to paragraphs 1-65 of its statement of

material facts. Such a citation is improper, and is not considered support for the Plaintiff's denial. See M.R. Civ. P.

56(h)(2) (requiring that each denial or qualification be supported "by a record citation as required by this rule.") The

Plaintiff also cited to paragraphs 1-74 of it statement of material facts in response to CHE's statement ofmaterial

facts paragraphs 18 and 20. (Pl.'s Opp. to CHE ~~ 18, 20.) These denials are also not properly supported, and the

court is not considering them.

5

Plaintiff claims that St. Joseph's and CHE had a contractual relationship whereby CHE oversaw St. Joseph's and

provided advice and planning to St. Joseph's, however, the Plaintiff supports this claim with a citation to "Healy

Dep. 6-7" and pages 6-7 ofthe Healy Deposition have not been presented to the court as a part of the record. (Pl.'s

A.S.M.F. ~2.) CHE also effectively controverts Plaintiff's assertion in its reply. (!d.; CHE's R.S.M.F. ~ 2.)

Plaintiff's A.S.M.F. ~3 has the same problem, since it cites to pages eight and nice of the Healy Deposition. Page

eight also has not been included as a part of the record, and thereby the assertion that "SJRR pays CHE a monthly

5

On October 31, 2012, Ms. Sullivan filed a complaint with the Maine Human Rights

Commission ("MHRC") alleging retaliation by St. Joseph's in violation of Maine's

Whistleblower Protection Act. Ms. Sullivan's Complaint to the MHRC alleged that Ms. Sullivan

was the director of nursing at St. Josephs, and that the facility retaliated against her because she

made complaints to management, the facility administrator and human resources. The MHRC

Complaint only named St. Joseph's as a respondent, and it did not mention CHE. Ms. Sullivan

did not amend her MHRC complaint to include claims against CHE, nor did she file an MHRC

complaint against CHE.

Ms. Sullivan is not listed in CHE's records as a past employee, independent contractor, or in

any other capacity. CHE and Ms. Sullivan have no contractual relationship, nor have they made

any promises to one another. CHE has not paid any wages or cash compensation to Ms. Sullivan,

nor reimbursed any entity for funds paid to Ms. Sullivan, nor has CHE conferred any non-cash

benefits, such as health insurance, upon Ms. Sullivan. CHE has never paid taxes associated with

Ms. Sullivan's employment, and it has never issued Ms. Sullivan IRS Forms 1099 or W-2. CHE

has never conferred upon Ms. Sullivan the following indicia associated with employment: a CHE

email address, an identification or building access card, a parking space, or other means to access

CHE facilities.

II. STANDARD OF REVIEW:

"Summary judgment is appropriate when the record reveals no issues of material fact in

dispute. A fact is material if it has the potential to affect the outcome of the case." Lepage v. Bath

Iron Works Corp., 2006 ME 130, ~ 9, 909 A.2d 629 (citations omitted).

management fee for the services" is not supported. (Plaintiffs A.S.M.F. 'if 3.) See also Pl.'s A.S.M.F. to CHE 'if 59;

Pl.'s A.S.M.F. to SJ 'i['i[ 2-3.

6

The Law Court has held that "[s]ummary judgment is properly granted if the facts are not

in dispute or, if the defendant has moved for summary judgment, the evidence favoring the

plaintiff is insufficient to support a verdict for the plaintiff as a matter of law." Curtis v. Porter,

2001 ME 158, ~ 7, 784 A.2d 18; see also Houde v. Millett, 2001 ME 183, ~ 11, 787 A.2d 757. I~

"a defendant moves for summary judgment, the plaintiff 'must establish a prima facie case for

each element of her cause of action' that is properly challenged in the defendant's motion."

Curtis, 2001 ME 158, ~ 8, 784 A.2d 18 (quoting Champagne v. Mid-Maine Med Ctr., 1998 ME

87, ~ 9, 711 A.2d 842); see also Corey v. Norman, Hanson & DeTroy, 1999 ME 196, ~ 9, 742

A.2d 933.

When considering a Motion for Summary Judgment, this court must admit

uncontroverted facts from the statement of material facts that are properly supported. M.R. Civ.

P. 56(h)(4). This court cannot consider parts of the record that were not properly referenced in a

statement of material facts. See M.R. Civ.P. 56(h)(4) ("The court shall have no independent duty

to search or consider any part of the record not specifically referenced in the parties' separate

statement of facts."); see also HSBC Bank USA, NA. v. Gabay, 2011 ME 101, ~ 17,28 A.3d

1158.

III. DISCUSSION:

A. Retaliation Claim

"Both the MHRA and WP A seek to protect employees against discrimination by

providing an avenue of recourse when they have been treated unfairly." Fuhrmann v. Staples

Office Superstore E., Inc., 2012 ME 135, ~ 32, 58 A.3d 1083.

The Maine WP A provides, in pertinent part:

7

No employer may discharge, threaten or otherwise discriminate against an employee

regarding the employee's compensation, terms, conditions, location or privileges of

employment because:

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.

26 M.R.S. § 833(1).

'"To prevail on a [Whistleblowers' Protection Act] claim, an employee must show that

(1) he engaged in activity protected by the WP A; (2) he experienced an adverse employment

action; and (3) a causal connection existed between the protected activity and the adverse

employment action.'" Hickson v. Vescom Corp., 2014 ME 27, ~ 17, 87 A. 3d 704 (quoting Currie

v. Indus. Sec., Inc., 2007 ME 12, ~ 12, 915 A.2d 400) (alteration in the original).

St. Joseph's confines its Motion to disputing the Plaintiff's claim based on the second

prong. St. Joseph's argues that summary judgment should be granted in its favor, as Ms. Sullivan

cannot prove that she suffered any adverse employment action. Defendant CHE has joined in co-

Defendant St. Joseph's Rehabilitation and Residence's Motion for Summary Judgment with

respect to the argument that Ms. Sullivan never suffered any adverse employment action.

The WPA provides that "[n]o employer may discharge, threaten or otherwise

discriminate against an employee regarding the employee's compensation, terms, conditions,

location or privileges of employment", as a result of protected activity. 26 M.R.S.A. § 833(1 ).

8

The Law Court has held that its "construction of the MHRA and WP A has been guided by

federal law .... " Currie v. Indus. Sec., Inc., 2007 ME 12, ~ 13, 915 A.2d 400.

"An adverse employment action is one that 'materially change[s] the conditions of

plaintiffs' employ."' Higgins v. TJXCompanies, Inc., 331 F. Supp. 2d 3, 6-7 (D. Me. 2004)

(quoting Gu v. Boston Police Dep't, 312 F.3d 6, 14 (1st Cir.2002)). The United States District

Court for the District of Maine has held that an adverse employment action usually requires that

an "employer must either take something of consequence from the employee, or withhold from

the employee an accouterment ofthe employment relationship, say, by failing to follow a

customary practice of considering her for promotion after a particular period of service." Paquin

v. MBNA Mktg. Sys., Inc., 233 F. Supp. 2d 58, 67 (D. Me. 2002)(quotation omitted). "The First

Circuit has specifically mentioned the following as adverse employment actions: demotions,

disadvantageous transfers or assignments, refusals to promote, unwarranted negative job

evaluations, and toleration of harassment by other employees." Davis v. Emery Worldwide

Corp., 267 F. Supp. 2d 109, 120 (D. Me. 2003). The First Circuit has held that a reprimand that

results in "tangible consequences" can be considered an adverse employment action. Bhatti v.

Trustees of Boston Univ., 659 F.3d 64, 73 (1st Cir. 2011).

St. Joseph's argues that retaliatory action under the WPA is more constricted than it

would be under the MHRA or under federal law. In Burlington Northern & Santa Fe Ry. Co. v.

White, the Supreme Court distinguished the Title VII anti-discrimination provision of the Civil

Rights Act from the anti-retaliation provision of the Civil Rights Act in terms of what types of

actions were prohibited under each provision. 548 U.S. 53 (2006). Based on the language in the

Act and the purpose behind each provision, the anti-discrimination provision required that the

discrimination be workplace related, while the anti-retaliation provision did not. Id. at 62-67. Ms.

9

Ms. Sullivan has argued that the more expansive approach to retaliatory action should be adopted

where the court looks to whether a "a reasonable employee would have found the challenged

action materially adverse, 'which in this context means it well might have dissuaded a reasonable

worker from making or supporting a charge of discrimination."' Id at 68 (quoting Rochon v.

Gonzales, 438 F.3d 1211, 1219 (C.A.D.C.2006)). The MWPA wording most closely resembles

the more narrowly construed antidiscrimination provision, however, as the District Court noted

in Thayer Corp. v. Reed, "The Burlington Northern opinion ... cuts both ways; its linguistic

analysis supports a limited application of the MWP A while its statutory purpose analysis

supports a broad interpretation of the MWPA." 2011 WL 2682723, at *21 (D. Me. July 11,

2011 ). It is unclear therefore how the principles of Burlington Northern should apply to the

MWPA. What remains clear are the requirements of§ 833.

In LePage., the Law Court distinguished the MWPA from the federal anti-retaliation

provision. 2006 ME 130, ~ 21, 909 A.2d 629. The Law Court held, "Unlike 42 U.S.C.S. §

2000e-3(a) (LexisNexis 2005), which simply prohibits 'discrimination' in response to a

protected activity, the MWP A specifically defines discrimination by stating that ' [n]o employer

may discharge, threaten or otherwise discriminate against an employee regarding the employee's

compensation, terms, conditions, location or privileges of employment."' Id (quoting 26 M.R.S.

§ 833(1)).

Ms. Sullivan has made a prima facie case of an adverse employment action. In particular,

Ms. Sullivan's exclusion from meetings, combined with the criticism she faced 6 , and the written

performance plan could, when viewed in the light most favorable to the Plaintiff, constitute

adverse employment action involving the condition ofher employment. See Rodriguez-Vives v.

6

Taken individually, the criticism and rudeness Ms. Sullivan faced from Ms. Schofield and Ms. Nicholson would

not rise to the level of an adverse employment action.

10

Puerto Rico Firefighters Corps ofPuerto Rico, 743 F.3d 278, 285-86 (1st Cir. 2014) (where the

court on a motion to dismiss in a federal retaliation claim viewed the plaintiff's allegations

cumulatively, rather than individually.) In Valentin-Almeyda v. Municipality OfAguadilla, 447

F .3d 85, 97 (1st Cir. 2006), the 1st Circuit described admonishment letters received soon after

expressed complaints as adverse employment actions. At the same time, however, the ih Circuit

has held that in Agnew v. BASF Corp that a performance improvement plan coupled with unfair

criticism was not tantamount to an adverse employment action through constructive discharge.

286 F.3d 307, 310-11 (6th Cir. 2002). The court agrees that Ms. Sullivan's performance plan

would not constitute constructive discharge, but it is possible that a fact-finder could find that a

plan based upon unwarranted criticism threatening Ms. Sullivan with dismissal in 30 days if she

failed to meet expectations, coupled with Ms. Sullivan's other allegations, rises to the level of an

adverse employment action.

B. Constructive Discharge

Ms. Sullivan, however, has not made a prima facie case for her constructive discharge claim.

To prove constructive discharge, a plaintiff must be able to show a hostile work environment.

Bodman v. Maine, Dep 't of Health & Human Servs., 787 F. Supp. 2d 89, 110 (D. Me. 2011. )

The Law Court has held "(h]ostile environm.ent claims involve repeatro or mtense harassment

sufficiently severe or pervasive to create an abusive working environment." Doyle v. Dep 't Of

Human Servs., 2003 ME 61, ~ 23, 824 A.2d 48, 56. "'Constructive discharge' usually describes

harassment so severe and oppressive that staying on the job while seeking redress is intolerable."

Bodman., 787 F. Supp. 2d 89, 109 (D. Me. 2011) (quotation omitted). "When determining

whether a hostile work environment claim exists, the court must look to all the circumstances,

including the frequency of the discriminatory conduct; its severity; whether it is physically

11

threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes

with an employee's work performance." Blake v. State, 2005 ME 32, ~ 8, 868 A.2d 234, 237-38

(quotations and citations omitted). The court must gauge whether the harassment is so severe that

it creates an abusive or hostile workplace. Id ~ 9.. The court must make determinations

regarding whether the workplace was subjectively and objectively abusive or hostile. Id

Plaintiff's facts provide inadequate support for a constructive discharge claim. In no way was

the environment at St. Joseph's abusive or intolerable in the manner required for a hostile work

environment claim, let alone a constructive discharge claim. Ms. Schofield and Ms. Nickerson

may have been rude and callous towards Ms. Sullivan and members of the staff, but their

behavior as documented by Ms. Sullivan did not rise to the level of abuse. Ms. Sullivan was able

to continue bringing her complaints to the attention of her employer up until she left her position.

Nor has Ms. Sullivan shown that she was on the verge of being fired, in fact she had thirty days

to improve under the written performance notice. See Agnew, 286 F.3d 307, 310 (6th Cir. 2002)

("An employee who quits a job in apprehension that conditions may deteriorate later is not

constructively discharged.") Count II of Ms. Sullivan's claim is thereby dismissed.

C. Catholic Health East's Motion for Summary Judgment

In addition to concurring with St. Joseph's assertion that Ms. Sullivan's case should be

dismissed because Ms. Sullivan did not suffer any adverse employment action, CHE has also

moved for summary judgment independently. Ms. Sullivan has sued the wrong entity. CHE has

demonstrated that it had no contractual relationship with St. Joseph's, it did not provide services

to St. Joseph's, and that Ms. Sullivan confused CHE with CHESSM.

CHE argues that Plaintiff's case against CHE should be dismissed, since Ms. Sullivan

was never an employee of CHE, and Ms. Sullivan never had any contractual or other type of

12

relationship with CHE. As a result, Ms. Sullivan could not have suffered an adverse employment

action as a result of CHE. The court agrees.

Furthermore, CHE argues that Ms. Sullivan did not present a charge against CHE to the

MHRC, and thereby she has not exhausted her administrative remedies with respect to CHE. Ms.

Sullivan's Complaint to MHRC did not even mention CHE. In Thornton v. United Parcel Serv.,

Inc., the court explained:

the scope of the investigation rule permits a district court to look beyond the four comers

of the underlying administrative charge to consider collateral and alternative bases or acts

that would have been uncovered in a reasonable investigation. .. . The rule does not,

however, provide a plaintiff with an unlimited license to extend his claim endlessly

beyond the bounds and parameters encompassed by the administrative charge. Indeed,

such an extension of the scope of the investigation rule would effectively nullify the

administrative exhaustion requirement and convert it into a simple notice requirement

that some claim may be brought, thereby depriving employers of the opportunity to

resolve issues at an early stage and rendering the EEOC (and state-level equivalents)

superfluous.

587 F.3d 27, 32 (1st Cir. 2009) (citation omitted.)

Pursuant to 5 M.R.S.A. § 4622, a plaintiffs remedies are severely limited if the plaintiff

has not filed a complaint with the Commission and the Commission has not taken certain actions

enumerated in the statute. Under§ 4622, such a plaintiff cannot recover attorney's fees, civil

penal damages, compensatory damages, or punitive damages. See also, Gordan v. Cummings,

2000 ME 68, ~ 11, 756 A.2d 942 ("Before a plaintiff with a MHRA claim may recover attorney

fees and damages, the plaintiff must establish that she first brought a claim before the Maine

Human Rights Commission."). CHE asks that the court dismiss the claims where the Plaintiff has

requested attorney's fees and compensatory and punitive damages. This court agrees with CHE

that even if Plaintiff had a relationship with CHE, and CHE had somehow caused her to suffer an

adverse employment action, Plaintiff did not exhaust her administrative remedies with regard to

13

CHE and thereby could not collect compensatory, punitive or civil penal damages, or attorney's

fees.

It is unnecessary for this court to reach Plaintiffs joint employer argument, since CHE

clearly could not have been a joint employer with St. Joseph's when CHESSM, not CHE, is the

entity that had the contractual and working relationship with St. Joseph's. The court thereby

grants CHE's Motion, as it is clear that the Plaintiff sued the wrong entity, and CHE could not

have inflicted an adverse employment action upon Ms. Sullivan.

Accordingly, the court ORDERS that Plaintiffs retaliation claim survives St. Joseph's

summary judgment motion and shall proceed to trial. The court grants summary judgment in

favor of St. Joseph's on Plaintiffs constructive discharge claim, which is now dismissed. The

court also grants summary judgment in favor of CHE, and CHE is dismissed from this action.

The clerk is directed to incorporate this Order into the docket by reference pursuant to

Maine Rule of Civil Procedure 79(a).

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DANIELLE SULLIVAN VS CATHOLIC HEALTH EAST

UTN:AOCSsr -2013-0044157 CASE #:PORSC-CV-2013-00211

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2 MONUMENT SQUARE SUITE 900 PO BOX 17555 PORTLAND ME 04112-8555

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DANIELLE SULLIVAN VS CATHOLIC HEALTH EAST

UTN:AOCSsr -2013-0044157 CASE #:PORSC-CV-2013-00211

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