# Gallagher v. Penobscot Community Healthcare > Superior Court of Maine · March 21, 2017 URL: https://www.frixlaw.com/law-library/cases/10811427 ## Case - **Court:** Superior Court of Maine - **Decided:** March 21, 2017 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Ann M. Murray - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10811427 ## How later opinions describe it (automated extraction) - holding that the defendant was entitled to summary judgment when the record does not show what statements were made, or when, where, or how they were made - holding that "[t]he Whistleblowcrs' Prolection Act embodies a statutory public policy against discharge in retaliation for reporting illegal acts [andl a right to the 14 discharged employee" which would serve to vindicate the same right as the tort of wrongful discharge ## Opinion text STATE OF MAINE SUPERIOR COURT PENOBSCOT, ss. CIVIL DIVISION DOCKET NO. CV-16-54 WILLIAM F. GALLAGHER, M.D., ) Plaintiff, ) ) v. ) ORDER ON DEFENDANTS' ) MOTION TO DISMISS PENOBSCOT COMMUNITY HEAL TH CARE, ) ROBERT P. ALLEN, M.D., NOAH NESIN, M.D. ) TERRY WHITE, and LORI DWYER, ESQ., ) Defendants. ) Before the Court is Defendants Penobscot Community Healthcare, Robe11 Allen, Noah Nesin, Terry White, and Lori Dwyer's motion to dismiss. Defendants move, pursuant to M.R. Civ. P. 12(b)(6}, to dismiss all claims brought against them in Plaintiffs complaint. Heming was held on this matter on November 29, 2016. I laving reviewed the parties' filings and their respective arguments, and for the reasons stated below, Defendants' motion to dismiss is hereby granted in part, denied in part, and decision is reserved in part. BACKGROUND This action stems from the alleged improper conduct by doctors and staff at Penobscot Community Healthcare ("PCHC") in co1mection with the termination of Dr. Gallagher's employment. 1 The following factual background accepts facts from Plaintiffs' complaint, which are deemed true when evaluating a motion to dismiss. 1 AL all times relevant to this action, PCUC was Dr. Gallagher's employer, and the individual Defendants acted in their managerial capacities and within the comse and scope of their employment with PCJIC and/or with the authorization of PCilC. (Pl. 's Com pl. ~~ 12-13.) Dr. Allen was the Executive Medical Director until April I, 2014; Dr. Nesin has been the Chief Medical Officer since March 2013; Mr. White was the Chief' Human Resources Officer unttl April 2014; and Ms. Dwyer was the General Counsel and Compliance and Risk Officer, and became Chief Human Resources Officer in April 2014. (id. ,i,i 3-6.) L>r. Gallagher was born in 1935 and at all times relevant to this action was older than 40 years of age. (id. ,i 7.) Dr. Gallagher, a licensed and board-certified dermatologist, and PCIIC entered into a Professional Employment Agreement ("employment contract") on January 25, 2008, whereby Dr. Gallagher agreed to perform professional medical services in return for compensation from PCHC. (Pl.'s Compl. iii! 8, 14-15.) On that same day, Dr. Gallagher entered into an Asset Transfer Agreement ("asset agreement"), in which PCHC acquired Dr. Gallagher's entire private practice. (Id. 116-17.) The employment contract states that employment may be terminated as follows: Termination. This Agreement may be terminated by either party without cause upon sixty ( 60) days advance written notice to the other party. Immediate Termination. Notwithstanding any other provision of this Agreement, PCHC may immediately terminate this Agreement in the event that Employee ... fails to meet what it considers critical terms of the Agreement. (Ex. A§§ 10.2-10.3.)2 One of the critical terms of the contract describes the standard of practice expected of the employee under the agreement: Standard of Practice. Employee shall retain independent medical judgment and responsibility for the practice of medicine. However, Employee shall comply with procedures which may be established and/or adopted by PCIIC to assure the consistency and quality of all services. Physician shall deliver services in a competent and professional manner, consistent with quality assurance and utilization review standards of PCHC .... (Id.§ 3.) 2 The general rule is that only the facts alleged in the complaint may be considered on a motion to dismiss, and any additional materials presented to the cou11 must either be excluded by the court or the motion shall be converted to a motion for summary judgment. Moody v. Stale Liquor & [,olle1y Comm 'n, 2004 ME 20, ~ 8, 843 A.2d 43. However, the court may consider documents that are central to the plaintiffs clairn(s) and/or referred to in the complaint without conve1ting the motion to a motion for summary judgment. Id. t I I. Herc, Defendants attached as Exhibit A the Physician Employment Agreement and the Asset Transfer Agreement, both of which were referenced explicitly in Plaintiffs complaint. (Comp I. ,,1 15-17.) Additionally, Plaintiff alleges breach of contract, which directly refers to the employment contract. See Moody, 2004 ME 20, ~ 12, 843 A.2d 43 (finding that documents containing the terms of the contract were central to the plaintiffs claim). Therefore, the Court will consider Exhibit A without converting this motion to a motion for summary judgment. 2 Sometime after Dr. Gallagher joined PCHC, staff complained that he was "old school," among other complaints, and these complaints were investigated by Defendants. (Pl.' s Comp!. ii~ 19-20.) Plaintiff alleges that PCHC insufficiently investigated staff complaints because the investigation relied on inaccurate complaints and excluded positive information provided by other witnesses. (Id. ,r 20.) Dr. Gallagher protested to Defendants about the insufficiency of their investigation until he was threatened with adverse employment action if he did not cease and desist his own allempts to investigate the complaints. (Id. , 22.) Dr. AIJen, Executive Medical Director, stated to Dr. Gallagher that the investigation was "not undertaken with intellectual vigor" and told Dr. Gallagher to retire, which he declined to do. (Id. ii 23-24.) No evidence was uncovered suggesting that Dr. Gallagher's conduct interfered with his ability to provide quality medical care to his patients. (Id. ii 26.) Additionally, between 2008 and 2013, at least one patient complained that Dr. Gallagher was elderly, senile, and demcnted. 3 (Id. ,i 20.) Plaintiff alleges that investigations into patient complaints were mishandled in a similar fashion as the investigations into staff complaints. (Id. ,1,i 31-34.) On or about June 27, 2013, PCHC suspended Dr. Gallagher from employment effective July 1, 2013, due to staff complaints. 4 (Id. ~ 28.) On or about April 3, 2014, Dr. Gallagher's employment was terminated by PCHC on the basis of patient complaints that were unrelated to age. (id. ,1,i 31, 45-46.) Plaintiff claims these adverse employment actions were just part of a 3 Additionally, Plaintiff alleges "Dr. Gallagher received l S complaints over several years" but Plaintiff does not specify the "several years" referenced. (Pl. 's Comp!. 1 37.) 4 It is unclear from the complaint when and if Dr. Gallagher's suspension ended prior Lo bis termination. Plaintiff cites adverse employment actions rcpo11cd to the Maine State Board of Liccnsure in Medicine on July 15, 2013, October 17, 2013, and April 14, 2014. (Pl.'s Compl. 1 52 .) The first date is two weeks after Dr. Gallagher's suspension, the second date is nut referenced anywhere in the complaint, and the third date is two weeks aner Mr. Gallagher was terminated from his employment. (Id. ~~ 28, 46.) The Maine State Board of Licensure dismisser.I lhc complaint after an investigation that included, among other things, evaluation by a ncuropsychologist. (Id. ~,J 53 -5tl.) 3 "continued pattem of willful, illegal, and unjustified adverse treatment and employment action taken against Dr. Gallagher starting as early as 2010." (Id.) Specifically, Plaintiff alleges that Dr. Allen chose an arbitrary number of patient complaints-two per year-as a pre-textual basis for Laking adverse employment actions against Dr. Gallagher. (id. ~ 38.) Additionally, Plaintiff alleges that PCIIC misrepresented the basis for its employment decision. (Id.~ 29.) In December 2012, PCHC advertised to fill a new dermatology position. (Id. , 50.) In February 2013, a few months before Dr. Gallagher's employment was suspended, PCHC hired another dermatologist, Elaine Eliezer, to "help [Dr. Gallagher] out" and "to help him change patients' perception of him." 5 (Id. ~ 51.) Dr. Gallagher alleges that PCHC and the individually named defendants "published oral and written false and defamatory statements about his professional relations with staff and patients, ... making them known to third parties."6 (Id. ii 86.) These statements included the following: • Dr. Gallagher bullied, intimidated, and verbally and physically abused staff. • Dr. Gallagher retaliated against staff who complained of his behavior. • Dr. Gallagher had too many staff and patient complaints and these complaints were substantiated as true and accurate and were serious enough to affect his position at PCHC and his medical license. • Kenneth Nadeau, PA-C did not trust Dr. Gallagher's clinical judgment. • Dr. Gallagher mistreated, intimidated, discriminated against, and neglected patients. • Dr. Gallagher provided patients with care that was inappropriate or otherwise did not meet PCHC's standards. • Dr. Gallagher misused medical equipment with patients. • Dr. Gallagher was Loo old to care for patients and was senile and suffered from dementia during the time he cared for them. 5 Plainti trs complaint notes these phrases in quotation marks, so the Court puts them in quotation marks for continuity. However, it is unclear who actually said these remarks. 6 Plaintiffs complaint merely states thal Defendants published these statements and made them known to third pa1tics. Plaintiff docs not state where these statements were published or what exactly the statements were, instead providing a summary oflhcir content. 4 (Id. ~ii 87-88.) During Dr. Gallagher's time with PCHC, Defendants made offensive remarks about his age so frequently that it created a hostile or otfonsivc work enviromncnt. (Id. ii 58.) As a result, Dr. Gallagher "has suffered and will continue to suffer severe emotional pain, distress, suffering, mental anguish, loss of enjoyment of life, inconvenience, loss of reputation, loss of past and future income, and other non-pecuniary losses, as well as pecuniary losses and attorney's fees, costs, expenses, and other damages." (Id.~ 66.) Plaintiff alleges several claims: ( l) age discrimination under the Maine Human Rights Act ("MHRA"), (2) retaliation under the MHRA, (3) intentional infliction of emotional distress, (4) negligent inlliction of emotional distress, (5) defamation, (6) injurious falsehood, (7) tortious inte1ference with existing and prospective advantageous economic relations, and (8) breach of contract. DrSCUSSION 1. Legal Standard.for Motion to Dismiss Dismissal of a complaint is proper only when the complaint fails to state a claim for which relief may be granted. See M.R. Civ. P. 12(b)(6). A motion to dismiss tests the legal sufficiency of the complaint, in re W(lge Payment Litig. v. Wal-Mart Stores, Inc., 2000 ME 162, ~ 3,759 A.2d 217, and is a pure question of law. Persson v. Dep't of Human Servs., 2001 ME 124, ~ 8, 775 A.2d 363. Generally, to be sufficient, a complaint need only consist of a short and plain statement of the claim to provide fair notice of the cause of action. Johnston v. Me. Energy Recovery Co., /,td. P 'ship, 20 l O ME 52, if l 6, 997 A.2d 741. However, allegations of fraud musl be pied with particularity. M.R.Civ.P. 9(b); Bean v. Cummings, 2008 ME 18, ii 8, 939 A2d 676. When deciding a motion to dismiss, courts must accept as lrue all well-pleaded facts in the complaint and constrne most favorably to the plaintiff all reasonable inferences that can be drawn from those facts. McClosky v. Mueller, 446 F.3d 262, 266 (1st Cir. 2006). "A dismissal 5 should only occur when it appears beyond doubt that a plaintiff is entitled to no relief under any set of facts that he might prove in supp01t of his claim." Moody, 2004 ME 20, 1[ 7, 843 A.2d 43 (quotation marks omitted). "At this stage of the proceedings, '[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims."' Jackson v. Birmingham Bd ofEduc., 544 U.S. 167, l 84 (2005). II. Claims under the Maine Human Rights Act (Counts J & 2) Plaintiff alleges that Defendants discriminated against him based on his age, and thus violated his rights under the MIIRA. Additionally. Plaintiff alleges that Defendants unlawfully retaliated against him. As a threshold matter, in order for a plaintiff to take advantage of the full array of remedies available under the MHRA, he must exhaust administrative remedies prior to filing a complaint. 5 M.R.S. § 4622 (201 l). Section 4622 prohibits a plaintiff from recovering attorney fees, civil penal damages, compensatory damages, or punitive damages unless he "alleges and establishes that, prior to the filing of the civil action, the plaintiff first filed a complaint with tl1e [Maine Human Rights C)orrunission" and that the commission has taken some final action on the administrative charge. Id.; see also Gordan v. Cummings, 2000 ME 68, ~ 11, 756 A.2d 942. Dr. Gallagher did not file a complaint with the Maine Human Rights Conunission prior to filing the present action. Therefore, his remedies are limited with respect to the MI-IRA counts. A. Individual Defendants Dr. Gallagher is pursuing both an age-discrimination claim and a retaliation claim under the MHRA. In addition lo naming his employer PCHC as a defendant, he has also sued four individual defendants in this action, and seeks relief under the MHRA as to all four of them. Plaintiff in this case has specified that his employment retaliation claim is brought under 5 M.R.S. § 4633, not under 5 M.R.S. § 4572. (Pl.'s Opp'n to Defs.' Mot. Dismiss 5.) Plaintiff 6 then argues that the wording of § 4633,7 unlike the wording of the Maine Whistleblowers' Protection Act ("WPA") 8 and § 4572, 9 prohibits a "person" from retaliating, and thus the Fuhrmann v. Staples Ofjrce Supers/ore R., Inc., 2012 ME 135, 58 A.3d 1083, decision that individuals cannot be held liable in a retaliation case does not apply to this case. In Fuhrmann, the Court stated that: Employers, not employees, have the power and resources to remedy discrimination by implementing anti-discrimination polices, reinstating employees or paying penalties. The remedies and penalties expressly established in the MHRA arc indicative of the Legislature's understanding !that holding the employer accountable protects the employee's right to vindication] as [the remedies and penalties I are clearly designed to apply to employers, not individual supervisors. 2012 ME 135,133, 58 A.3d 1083 (citations omitted). The Fuhrmann court, after thorough analysis of the MHRA, including its purpose, public policy, language, and the "context of the whole statutory scheme," reasoned that by holding the ultimate employer accountable, as opposed to a co-worker employee, the WP A and the MHRA ensured that lhe employee's right to vindication is protected. Id. ~ 31. The Couit noted: The MHRA's express incorporation of vicarious liability and its employer­ specific remedies do not signal any intent to hold individual supervisors liable for employment discrimination. ff the Legislature had intended to create individual supervisor liability it would have done so explicitly in much clearer terms. In the "A person may not discriminate against any individual because that individual has opposed any act or practice that is unlawful under this Act or because that individual made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under this Al:t." S M.R.S. § 4633(1) (emphasis added). 8 "No em1lloycr nrny discharge, threaten or otherwise discriminate against an employee regarding the t!mployce'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 u11dcr the laws of this State, a political subdivision of this State or the United States ...." 26 MKS.§ 833(1 )(A) (emphasis added). 'l "lt is unlawful employment discrimination . . . for an employer, employment agency or labor organization to discriminate in any manner against individuals because they have opposed a practice that would he a violation of this Act or because they made a charge, testified or assisted in any investigation, proceeding or hearing under this Act." 5 M.R.S. § 4572(1 )(E) (emphasis added). 7 absence of any clear indication to that effect, we will not undermine the purpose of these statutes by reading them to provide for individual supervisor liability. Id.~ 34 (citations omitted). The statutory provision relied upon by Plaintiff, § 4633, was enacted as emergency legislation in 1993. Thus, § 463 3 was in existence in 2012 when the Law Court decided ° Fuhrmann. 1 For several reasons, it would be inconsistent to prohibit retaliation claims in the employment context against individuals under§ 4572(l)(A), yet permit retaliation claims in the employment context against individuals under§ 4633. First, in an employment case the conduct at issue under § 4572 and § 4633 would be the same or very similar. Under § 4572(1 )(A), an employee who engages in a protected activity (employee reporting employer violation of federal or state law) is protected from retaliation. Unoer § 4572( l)(TI), an employee who opposes a practice that violates the MHRA or who makes a charge, testifies, or assists in any investigation, proceeding, or hearing under the MHRA is protected from retaliation. Similarly, under § 4633, an employee who opposes an act or practice that violates the MHRA or who makes a charge, testifies, assists, or participates in any investigation, proceeding, or hearing under the MHRA is protected from retaliation. Secondly, the remedies for a violation of a§ 4572 claim and a§ 4633 claim are the same. 11 rinally, federal law does not permit retaliation claims against individuals. Fantini v. Salem State Coll., 557 F.3d 22, 30 (1st Cir. 2009) (no individual liability for employees under Title VTT). 12 10 At least two of the Amicus Curiae briefs tiled with the Law Court in Fuhrmann called attention lo the existence of§ 4633. See Brief for Me. Emp'l Lawyers Ass'n at 7, Fuhrmann, 2012 ME 135 (No. Yor-11­ 551 ); Brief for Me. lluman Rights Comm 'n at 8, Fuhrmann, 2012 ME 135. 11 The Law Court has held that courts must evaluate WPA retaliation claims within the MHRA framework . Me . l/11man Rights Comm 'n v. Me . Dep 't of Def &. Veterans' Servs., 627 A.2d I005, I 007 n.8 (Me. 1993) (the WPA does not prnvide a judicial remedy for retaliatory discrimination; the remedies must be pursued through the MHRA). 12 Maine courts look to federal law when interpreting the MHRA . Bowen v Dept. of Human Servs., 606 /\.2d 1051, 1053 (use of federal law as an aid to interpreting Maine's anti-discrimination law is 8 The scope of the analysis in Fuhrmann was broad and the decision was not limited. The Court stated: we "conclude that the WP A and the MHRA do not provide for individual supervisor liability." Fuhrmann, 2012 ME 135, 1 I, 58 A.3d 1083. This Court is satisfied that the MHRA does not permit employment-related claims to be pursued by one employee against other employees. Post-A,hrmann, federal courts that have considered the question of whether the MHRA permits employees lo be held liable under the MHRA have interpreted Fuhrmann broadly to prohibit any employee liability under the MHRA. 13 See McLean v. Delhaize Am., No. 12-CV-00381-GZS, 2013 U.S. Dist. Lexis 55767 (D. Mc. Mar. 27, 2013) (the MHRA does not permit retaliation claims to be pursued againsl follow employees, including supervisors); Doyer v. RSU /6, No. 14-CV-25-JAW, 2014 U.S. Dist. LEXIS 115327 (D. Me. Apr. 23, 2014) (finding that dismissal of MHRA age discrimination claim and MHRA retaliation claim was required because the MHRA does not authorize liability against individuals). Therefore, Counts I and II are dismissed against Defendants Robert Allen, M.D., Noah Nesin, M.D., Terry White, and Lori Dwyer, Esq. individually for failure to state a claim upon which relief may be granted. B. Penob. cot Gommunity H~alth Center The viability of Dr. Gallagher's discrimination and retaliation claims against PCHC are different than the viability of those claims against the individual defendants. Defendants' argument that the claims against PCITC must be dismissed includes an argument about the scope appropriate); Fuhrmann, 2012 ME 135, ~ 27, 58 A.3d I083 (reference to federal law on interpretation of the MHRA is uppropriale, but not determinative). 13 Pre-Fuhrmann, t'edernl courts also held that individuals were not liublc under the MHRA. Gough v. E. Me. Dev 'p Corp., 172 r. Supp. 2d 221, 223-227 (D. Mc. 200 I) (noting that the MHRA was enacted against the background of federal anti-discrimination statutes and the network of federal cases applying those laws, the court held that no cause of action existed against a supervisor in his individual capacity under the MHRA); Caldwell v. Federal Express, 908 r. Supp. 29, 36 (D. Me. 1995) (MRHA does not impose individual liability). 9 of the remedies to which Dr. Gallagher would be entitled if he were to prevail on these claims. If Dr. Gallagher prevails against PCHC on his age disctimination and retaliation claims, his remedies for Counts I and IT would include only those remedies that do not constitute attorney fees, civil penal damages, compensatory damages, or punitive damages. 14 5 M.R.S. § 4622(1); 5 M.R.S. § 46 I 3(2)(B). There is vigorous dispute between the patties about whether Dr. Gallagher's failure to file a complaint with the MHRC forecloses all meaningful remedies such that he would be left without relief even if he were to prevail on his claims. If he is without meaningful remedies, dismissal is required. Pa/esky v Topsham, 614 A.2d 1307, 1310 (Me. 1992) (a claim is moot if no further recovery is available to a claimant); Gordon v. Cummings, 2000 ME 68, 1 10, 756 A.2d 942 ("[a]n issue loses its controversial vitality when fthe court's] decision would not afford the appellant any real or practical relief'); Schoendorf v. RTH Mech. Contrs., Inc., No. 12-CV-179-GZS, 2012 U.S. Dist. LEXIS 109541, *18 (D. Me. Aug. 6, 2012) (a claim is moot when the plaintiff cannot be afforded any effective relief). While Dr. Gallagher may be limited in the remedies that could be awarded if he is successful on the liability issues in Counts I and II, the Court is satisfied sufficient remedies exist to deny PCI-IC's motion to dismiss the MHRA claims on this ground at this time. While reinstatement might be only for a period of 60 days given the termination clause of the agreement, the act of reinstatement and corresponding compensation is sufTicient potential relief to preclude granting the motion to dismiss on this basis. 15 1'1 "Attorney's fees under section 4614 and civil penal damages or compensatory and punitive damages under section 4613 may not be awarded to a plaintiff in a civil action under this Act unless the plaintiff alleges and establishes that, prior to the filing of the civil action, the plaintiff lirsl Liled a complaint with the commission ...." 5 M.R.S. § 4622( I). 15 Plaintiff argues that even though he did not file with the MHRC he will still be entitled to back pay, rcinstatcrncnt, front pay, liquidated damages, nominal damages, pecuniary damages, interest, and other relief, if he prevails on his Ml!RA claims. (Pl. 's Opp'n to Defs .' Mot. Dismiss 3.) PCHC argues that 5 M.R.S. § 4622( I) clearly provides that compensatory damages are barred when the plaintiff docs not file a complaint with the MHRC first, and that any awards intending to compensate a plaintiff for monetary 10 i. Count I: Age Discrimination Dr. Gallagher alleges that PCHC terminated his employment based on his age. The MHRA provides that "l'ilt is unlawful employment discrimination ... to discharge an employee" based on "race or color, sex, sexual orientation, physical or mental disability, religion, age, ancestry or national origin." 5 M.R.S. § 4572(1)(A). To withstand a motion to dismiss in a case for age discrimination, a plaintiff must present allegations showing the following: I. the plaintiff was over the age of forty; 2. his work was sufficient to meet his employer's legitimate expectations; 3. his employer took adverse action against him; and 4. the employer sought a replacement with roughly equivalent job qualilications, thus revealing a continued need for the same services and skills. Mesnickv. General Electric Co., 950 F.2d 816,823 (1st Cir. 1991). 16 "This showing gives rise to an inference that the employer discriminated due to the plaintifrs advanced years." Id. Here, Dr. Gallagher has made sufficient allegations of age discrimination against PCHC to withstand the motion to dismiss. At all times relevant to this action, Dr. Gallagher was over the age of forty. Dr. Gallagher alleges that his work was sul1icient to meet his employer's legitimate expectations. (See Pl. 's Comp!. ~I 27 ("[t]he quality of Dr. Gallagher's patient care was reviewed annually by PCHC and found to be good").) PCHC took adverse action against Dr. Gallagher by suspending him on June 27, 2013, and terminating his employment on April 3, 2014. Pinally, Dr. Gallagher alleges that PCHC hired a new dermatologist in Pebruary 2013, and that the new hire's credential.s were commensurate with his credentials. (Id. , 51.) While losses are compensatory damages. (Del's.' Reply to Pl. 's Opp'n to De[~.' Mot. Dismiss 2-3.) The Court will not decide this issue at this time. 16 When interpreting the MHRA, it is appropriate to refer lo federal law interpreting the Age Discrimination in Employment Act ("ADEA''). Me . Human Rights Comm 'n v. Auhum, 408 /\.2d 1253, 1261 (Me. 1979); French v Bath Iron Works, 45 F. Supp. 2d 69, 73 (D. Me. 1999). 11 Defendants argue that Dr. Gallagher was not "replaced," the Court is satisfied that the allegation that another dermatologist was hired while Dr. Gallagher was under investigation by PCHC and just a few months before Dr. Gallagher's employment was suspended is sufficient, at this stage of the proceeding, to aver that PCI-IC had a continuing need for the services of a dermatologist and that Dr. Gallagher was replaced. 17 While Plaintiff has failed to allege the age of his "replacement," given the derogatory age-related statements allegedly made by PCHC through its agents, sufficient allegations have been set forth by the Plaintiff to support the casual connection clement of the claim. Therefore, Defendants' Motion to Dismiss Count I against PCHC is denied. ii. Count JJ: Retaliation Plaintiff alleges that Defendants unlawfully retaliated against him when he objected to Defendants' unlawful age-related discrimination for "protected activity undertaken by him in response to the pretext Defendants offered in order to hide their illegal age discrimination" and "for his objections to Defendants' age-related disctimination and his insistence that the pretext of .. . complaints were illegitimate ...." (Pl.'s Comp!.~ 68, 70.) To withstand a motion to dismiss in a case for unlawful retaliation in an employment setting under the MRHA, the plaintiff must show the following: 1. the plaintiff engaged in protected conduct (opposed an act or practice that is unlawful under the MHRA or made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under the Act); 2. he suffered an adverse employment action; and 3. a causal connection existed between the protected conduct and the adverse action. 17 If the Court were to hold that an employer's hiring of a new employee shortly before taking illegal action against an existing employee could not, as a matler of law, satisly the requirement that the "employer sought a replacement with roughly equivalent job qualifications, thus revealing a continued need for the same services <'Ind skills," such ruling would merely insulate an employer who carefully planned the illegal action. Se11, e.g., Phair v. New Page Corp ., 708 F. Supp. 2d 57 (D. Mc. 2010) (timing of hiring the "replacement" imp01tant in a work force reduction case). 12 Bishop v. Bell At/. Corp., 299 F.Jd 53, 58 (1st Cir. 2002). Before an employer can retaliate against a person for complaining about illegal conduct such as age-related discrimination, the employer must be aware of the complaints. Stinson v. SimplexGrinnell l,P, 152 F. Appx . 8, • t t ( 1st Cir. 2005). Moreover, the court should not draw an inference to supply an essential element of a plaintiffs case. Id. at * 12. The first question in the analysis must be: what illegal conduct or practice did Plaintiff allegedly report, oppose, protest, or question? Here, Dr. Gallagher alleges that he "protested to Defendants about the insufficiency of the investigation of the merits of staff [and patient] complaints and attempted to investigate the complaints and advocate for himself, until he was ordered by Defendants to cease and desist and was threatened with adverse employment action if he did not comply with that order." (Pl. 's Comp!. ~~ 22, 33, 69.) Dr. Gallagher then alleges that he was suspended and later terminated "in retaliation for his objections to Defendants' age­ related discrimination and his insistence that the pretext of patient and staff complaints against him were illegitimate and required appropriate investigation before Defendants took adverse employment action against him." (Id.~ 70.) Similar to the plaintiff in Stinson, Plaintiff in this case has failed to allege that he complained to PCTIC specifically about age-related discrimination or that such specific cornplaint(s) were the cause for the adverse employment action. l 52 F. J\ppx. At * 12. The Complaint in this case merely states that he protested U1e sufficiency of the investigation, not that he complained to PCHC about age-related discrimination. llowcver, unlike the plaintiff in Stinson, Plaintiff in this case has not had the opportunity to amend his complaint. The Cou1t grants Plaintiff leave to amend his complaint to state the particular reports/complaints, if any, that he made to PCIIC specifically about age­ discrimination, including the specific content of the complaint, the person(s) to whom the 13 complaint was made, and the approximate date of the complaint. If Plaintiff fails to allege that he made any particular reports/complaints to PCHC specifically about age-discrimination, the motion to dismiss Count II as to PCHC will be granted. Therefore, the Court takes no action at this time on Defendants' motion to dismiss Count II against PCHC. Ill. Remaining Claims (Counts /II through Vlll) Defendants argue that the remainder of the counts, Counts III through Vlll, fail as a matter of law because the MHRA provides the exclusive state remedy for claims arising from alleged age discrimination in employment. Alternatively, Defendants argue that the exclusivity of the Workers' Compensation Act bars all of Plaintiff's tort claims and/or that Plaintiff has failed to adequately allege a cause of action. Dr. Gallagher's breach of contract claim (Count VIII) is not affected by the MHRA or the Workers' Compensation Act because those statutes apply to the exclusivity of tort claims, not to actions in contract. 39-A M.R.S. § 408 (2017); see also Liv. C.N. Brown Co., 645 A.2d 606, 607 (Me. 1994); Bard v. Bath Iron Works Corp., 590 A.2d 152, 155-56 (Me. 1991 ). A. MHRA ~~ th~ Ex.elusive St~te R~megy In support of their contention that the MHRA provides the exclusive state remedy for employment discrimination, Defendants cite to Bard for the proposition that "[w]here a statutory right and remedy are provided, there is no need to recognize a redundant tort." 590 A.2d at 156. However, Bard concerns the applicability of the torl of wrongful discharge in an employment discrimination case. Id. at 155-56. The Law Court found that the tort of wrongful discharge assumes much of the same conduct as an employment discrimination claim, and therefore would be redundant. Id. (holding that "[t]he Whistleblowcrs' Prolection Act embodies a statutory public policy against discharge in retaliation for reporting illegal acts [andl a right to the 14 discharged employee" which would serve to vindicate the same right as the tort of wrongful discharge). Here, the conduct alleged in Counts III through VIT relates to conduct that is difforent from the alleged discriminatory conduct and different rights will be vindicated if Dr. Gallagher is successful. 18 Therefore, as a matter of law, the MHRA does not bar the claims asserted in Counts Ill through Count VII. 8. Workers' Compens~tion Ac:t "The exclusivity and immunity provisions of the Workers' Compensation Act bar employees from pursuing civil litigation against their employers for injuries incurred in the course of employment." Li, 645 A.2d at 607. This bar extends to all t011s that seek recovery for mental or physical injuries-even to employers' intentional torts. id. at 608; Cole v. Chandler, 2000 ME 104, 1 I I, 752 A.2d 1189; Gordan, 2000 ME, 113, 756 A.2d 942. The immunity and exclusivity provisions of the Workers Compensation statute provide: An employer ... is exempt from civil actions, either at common law or under sections 901 to 908; Title 14, sections 8101 to 8118; and Title 18-A, section 2­ 804, involving personal injuries sustained by an employee arising out ol' and in the course of employment, or for death resulting from those injuries. 39-A M.R.S. § 104 (2017) (emphasis added). [A]n employee of an employer who has secured the payment of compensation as provided in sections 401 to 407 is deemed to have waived the employee's right of action at common law and under section I 04 to recover damages for the injuries sustained by the employee. 39-A M.R.S. § 408 (2017) (emphasis added). There is no dispute that PCHC is covered by the Maine Workers' Compensation Act (WCA). The torts of defamation, injurious fahiehood, and t011ious interference with an economic relationship arc broad enough to seek the recovery of economic damages. Cole, 2000 ME l 04, ~ t 3, 752 A.2d 1189 (finding that claims for defamation, invasion of privacy and interference with 18For example, defamation concerns the right of persons to be free from having harmful false statements published about them . This is a different right than the right to be free from discrimination in the workplace. 15 advantageous economic relations are broad enough to include recovery for mental and physical injuries). Thus, recovery for economic damages for defamation, injurious falsehood, and tortious interference (Counts V-Vll) is not precluded by the exclusivity provision of the Workers' Compensation Act. Defendants' motion to dismiss Counts V-VII of Plaintifrs complaint will not be granted based on the workers compensation exclusivity argument. On the other hand, claims for intentional and negligent infliction of emotional distress, by their very nature, allege "personal injuries" that seek recovery for mental injury. See Cole, 2000 ME 104, 752 A.2d 1189; Curtis v. Porter, 200 I ME 158, ~~ 18-20, 784 A.2d 18. C. IIED and NIED With respect to the emotional distress claims, determination of the motion to dismiss depends on whether the conduct arose out of and in the course of Dr. Gallagher's employment. A number of Law Cow1 cases have discussed the provision of an "i1tjury arising out of and in the course of employment." In Fournier v. Aetna, the Law Court held: [T]he term "in the course of• employment relates to the time, place, and circumstances under which an i~jury occurs, the place where the employee reasonably may be in pe1formance of the employee's duties, and whether it occurred while fulfilling those duties or engaged in something incidental to those duties. We then noted that the term "arising out of" employment means that there must be some causal connection between the conditions under which the employee worked and the injury, or that the injury, in some proximate way, had its origin, its source, or its cause in the employment. We further noted that the employment need not be the sole or predominant causal factor for the injury and that the causative circumstance need not have been foreseen or expected. 2006 ME 71, i11s, 899 A.2d 787 (citations omitted). It is clear that an employee must have been employed by the employer in question at the time of the injury to have the injury "arise out of and in the course of employment." Cole, 2000 ME I 04, ~ 9, 752 A.2d 1189; Comeau v. Me. Coastal Servs., 449 A.2