# Shafran v. Cook

> Superior Court of Maine · March 13, 2017

URL: https://www.frixlaw.com/law-library/cases/10811437

## Case

- **Court:** Superior Court of Maine
- **Decided:** March 13, 2017
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Nancy Mills
- **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/10811437

## How later opinions describe it (automated extraction)

- affirming trial court's decision granting defendant judgment notwithstanding the verdict on plaintiff's negligent infliction of emotional distress claim where the jury found for defendant on the underlying defamation claim

## Opinion text

STA TE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION

'.:,;T/,T:: 0" MAlr'-IE
C;ir,~Je,ianc, ss, Clerfz's Office
DOCKET NO. CV-14-213
/
DOROTHY SHAFRAN,

Plaintiff

V. JUDGMENT

TAMMY COOK d/b/a
BATH FAMILY DENTAL,

Defendant

Jury-waived trial on plaintiff's complaint was held over the course of four days,

November 18-20, 2015 and December 1, 2016. 1 Both parties appeared and were represented by

counsel. Plaintiff alleges a violation of the Maine Human Rights Act (Whistleblower), count I;

intentional infliction of emotional distress, count III; negligent infliction of emotional distress,

count IV; defamation, count V; and slander per se, count VI. 2 The court has considered the

testimony, deposition testimony,3 exhibits, and arguments of counsel. 4 For the following

reasons, judgment is entered in favor of defendant.

PROCEDURAL BACKGROUND

On the third day of trial, defendant's attorney, Robert Kline, announced he would call no

witnesses, in spite of his having told the court and counsel at the close of the second day of trial

1
The unfortunate delay in trying this case resulted from plaintiff's attorneys' efforts to call a
representative of the Occupational Safety and Health Administration (OSHA), John Newton, whom
counsel subpoenaed. The United States Department of Labor initially objected. The record was left open
to allow plaintiffs' counsel to proceed in federal court to secure the testimony. (11/18/15 tr. 53:13-59:12;
11/19/15 tr. 269:4-275:18.) Ultimately, the Department of Labor allowed Mr. Newton to testify. (12/1/16
tr. 13-14.)
2
Count II was dismissed by order filed November 10, 2014.
3
Patricia Michaud now lives in Palm Coast, Florida. She was deposed via telephone on October 23, 2015.
4
Defendant's motion for judgment as a matter of law at the close of plaintiff's case was taken under
advisement to permit review of the evidence. That motion is now denied.

1
that he would be prepared to call Michelle Dixon, Melanie Jacques, and defendant as witnesses.

(11/19/15 tr. 276-77; 11/20/15 tr. 2.) Instead, he represented to the court his view that he and his

client had received unfair and prejudicial treatment throughout the trial. (11/20/15 tr. 2:21-18: 1.)

(A) Specifically, he argued first he was left on his own to deal with the following

concerns despite his objections. (11/20/15 tr. 5:2-8.) (1) The court did not address adequately his

objections regarding plaintiff's counsel's positioning between a witness and Attorney Kline, (2)

plaintiff's counsel and witnesses spoke softly, (3) witnesses signaled objections to plaintiff's

counsel, and (4) witnesses were argumentative. (11/20/15 tr. 4: 12-22.)

(B) Attorney Kline argued second the court was overly solicitous to plaintiff's counsel.

(11/20/15 tr. 5:9-7: 1.)

(C) Attorney Kline argued third the court's concerns about Courtney Moulton 's Fifth

Amendment rights interfered with his cross-examination. (11/20/15 tr. 7:2-13: 10.)

(D) Attorney Kline argued finally the court's decision to leave the record open to allow

plaintiff to present testimony from a witness prejudiced Attorney Kline and his client. (11/20/15

tr. 13: 11-17:21.)

The court addresses each of Attorney Kline's arguments.

(A) Positi onin g, Speakin g Softly. Signaling. Argumentative

(1) With regard to Attorney Kline's first argument about plaintiff's counsel positioning,

the trial transcripts reflect that plaintiff's counsel adjusted his positioning, apologized, and

repeated questions when asked. (See,~. 11/18/15 tr. 63:6-8; 64:10-19; 78:17-18; 156:8-12;

11/19/15 tr. 18:7-9; 37:8-10; 49:23-50:2.)

(2) With regard to Attorney Kline's complaint that counsel and witnesses spoke softly, in

each instance the question or statement was repeated. (See 11/18/15 tr. 78:17-18; 100:4; 156:8­

2
12; 168:12; 175:6; 181:25; 206:16-19; 11/19/15 tr. 18:7-9; 20:3; 31:6; 37:8-10; 43:16; 49:18;

49:23-50:2; 52:19; 58:18; 86:11-13; 115:4-5; 164:5-6; 198:12; 212:3-4; 214:4-7.)

(3) With regard to the allegation that witnesses were signaling, Attorney Kline once noted

that a witness was looking at Attorney Mehnert. (11/19/15 tr.179:13-25.)

(4) With regard to argumentative witnesses, Attorney Kline stated he believed Chelsea

Huntington was being difficult with him. The court disagreed. (11/18/15 tr. 248:20-249:25.) In

contrast, defendant testified she could not remember, did not know, or stated "possibly" in

response to Attorney Sullivan's questions seventeen times. (11/18/15 tr. 34:21; 35:6-7; 38:15;

41:6; 42:12-15; 51:24; 53:5-7; 60:13-61:7; 72:15; 80:22; 81:1-2; 82:14-17; 85:5; 86:22; 88:18­

24; 101:13; 102:7.)

(B) Court Overly Solicitous to Plaintiff' s Counsel

Attorney Kline next argued that the court was overly solicitous to plaintiff's counsel.

This argument is not supported by the record. (11/18/15 tr. 5:5-6:21; 15:11-15; 55:16-56:3;

58: 17-59: 12; 76:6-18; 103: 1-8; 203:5-6.)

The court is satisfied the following examples noted by Attorney Kline do not show

favorable treatment to plaintiff's counsel.

(1) The court agreed to plaintiff's request for a recess at approximately 10:00 a.m. but

declined Attorney Kline's request for a recess at 12:10 p.m. The court wanted to complete the

examination of plaintiff before the lunch recess, which was taken at 1:11 p.m. (11/19/15 tr.

68:25-69:1; 138:22-139:1; 190:22.)

(2) The court solicited information about plaintiff's counsel's inability to present the

testimony of an OSHA witness, who had been subpoenaed. (11/20/15 tr. 6:14-16; 11/18/15 tr.

53: 13-59: 15; 276:9-277:24; 11/19/15 tr. 274:8-277: 12.)

3
(3) Plaintiff's counsel objected to the testimony of Dr. Greg Sarka on relevance grounds.

The court responded by asking whether Attorney Kline's examination of Dr. Sarka was relevant.

(11/20/15 tr. 6:17-7:1.) Plaintiff's counsel's objection to the testimony was sustained twice.

(11/19/15 tr. 264: 14-266: 14.)

The following instances were not raised by Attorney Kline but show the court was not

overly solicitous to plaintiff's counsel.

(1) The court agreed to Attorney Kline's suggested compromise in response to Attorney

Sullivan's request that David Cook be sequestered. (11/18/15 tr. 5:5-6:21.)

(2) The court scheduled trial to minimize disruption to defendant's practice. (11/18/15 tr.

15:11-15; 11/20/15 tr. 13:22-14:1; 12/1/16 tr. 309.)

(3) The court told Attorney Sullivan that people may not simply convey to him that a

person under subpoena will not be allowed to testify. (11/18/15 tr. 53:13-56:3.)

(4) The court told Attorney Sullivan that it would not be fair to defendant to allow

Attorney Sullivan to introduce a document that cannot be cross examined due to the absence of

the record's custodian. (11/18/15 tr. 58:17-59:12.)

(5) The court requested that Attorney Sullivan remove extra exhibits in response .to

Attorney Kline's concerns about duplicates and notes that were not in defendant's handwriting.

(11/18/15 tr. 76:6-18.)

(6) The court allowed Attorney Kline to call defendant at a later time and not examine her

after Attorney Sullivan's examination. (11/18/15 tr. 103: 1-8.)

(7) The court asked Attorney Sullivan to stand when he made objections. (11/18/15 tr.

203:5-6.)

4
(8) During the first two days of trial, the amount of time permitted for each party's

examinations of the witnesses was approximately equal: Attorney Kline's examinations totaled

352 minutes; plaintiff's attorneys' examinations totaled approximately 341 minutes.

(9) During the first two days of trial, the court sustained the majority of objections from

both Attorney Kline and plaintiff's counsel: 59% (19/32) of Attorney Kline's objections were

sustained and 41 % (13/32) of his objections were overruled; 75% (30/40) of plaintiff's attorneys'

objections were sustained and 25% (10/40) of their objections were overruled. (Attorney Kline's

objections were sustained: 11/18/15 tr. 69:22-70:1; 83:24-84:3; 117:13-16; 168:4-23; 172:10-14;

173: 16-22; 174:21-175: 12; 190: 11-18; 193:23-194:2; 194: 12-21; 266:23-267:6; 269: 16-270: 15;

272: 18-20; 11/19/15 tr. 29:7-12; 31: 10-32:8; 37: 14-16; 45: 12-14; 61:9-12; 185:2-8. Attorney

Kline's objections were overruled: 11/18/15 tr. 152:1-18; 152:25-153:7; 164:6-21; 181:15-21;

192: 17-24; 11/19/15 tr. 33: 13-16; 43:4-44:4; 68: 11-18; 75:8-22; 76:25-77:3; 187:9-17; 252: 14­

253: 14; 254:2-14. Attorney Sullivan's objections were sustained: 11/18/15 tr. 206:1-2; 206:7-9;

223:15-224:12; 229:8-13; 11/19/15 tr. 112:1-5; 195:14-16; 204:23-205:1; 225:1-2. Attorney

Sullivan's objections were overruled: 11/18/15 tr. 142:4-144:23; 203:3-13; 220:6-22; 222:20-25;

226:24-227:2; 255:6-23; 11/19/15 tr. 262:16-263:2. Attorney Mehnert's objections were

sustained: 11/18/15 tr. 215:12-17; 11/19/15 tr. 91:21-22; 96:10-97:1; 99:9-13; 132:8-14; 135:12­

13; 137:25-138: 10; 143: 11-19; 155:4-156: 18; 175: 18-176:4; 177:6-178:5; 178: 16-179: 11;

180:20-25; 231:22-232:2; 235:7-13; 237:11-14; 238:3-6; 240:6-13; 246:22-25; 248:2-5; 249:21­

250:6; 267:17-19. Attorney Mehnert's objections were overruled: 11/19/15 tr. 92:14-20; 147:14­

23; 163: 18-164:4.)

5
(C) Ms. Moulton 's Fifth Amendment Privilege

Attorney Kline argued next that the court's concerns about Ms. Moulton's Fifth Amendment

rights interfered with his cross examination of her. He argues that he was not able to pursue the

following areas of cross-examination.

(1) Impeachment of Ms. Moulton regarding the day on which she was in touch with

defendant. (11/20/15 tr. 8:2-11.)

(2) The impropriety of treating Jeremy Grendell. (11/20/15 tr. 8: 14-20.)

(3) The steps Ms. Moulton took to hide Mr. Grendell's treatment from defendant.

( 11/20/15 tr. 8:21-25 .)

(4) The violation of Board of Dental Examiners rules (11/20/15 tr. 9: 1-4.)

(5) Ms. Moulton' s lack of cooperation with regard to service of process (11/20/ 15 tr. 9:5­

15 .)

Attorney Kline cannot claim prejudice on the ground that a witness's Fifth Amendment

privilege interfered with his questioning. State v. Brown, 321 A.2d 478, 483 (Me. 1974) ("A

party seeking to question a witness may not claim that the court prevented relevant questioning

or intimidated witnesses into silence by virtue of the fact that the court advised such witnesses of

their constitutional rights.").

Attorney Kline argued that he was distracted by Ms. Moul ton ' s attorney, Attorney Bly,

and plaintiff's counsel. (11/20/15 tr. 10:11-21; 11/19/15 tr. 230:16-250:17.) The court offered

defendant the opportunity to recall Ms. Moulton when the trial resumed on December 1, 2016, as

Attorney Kline had previously suggested. (12/1 /16 tr. 4-5; 11/20/15 tr. 16 .) The court's offer

was declined. (12/1/16 tr. 304.)

6
Attorney Kline argued that his time for examination of Dr. Sarka was shortened by the

testimony of Ms. Moulton. (11/20/15 tr. 12: 1-18; 11/19/15 tr. 228:22-229: 1.) After Dr. Sarka's

testimony was completed, the court discussed several matters with counsel and then recessed at

4:01 p.m. (11/19/15 tr. 268:19-277:18.) There was additional time until at least 4:30 p.m. to

continue the examination of Dr. Sarka on November 19, 2015. Further, no request to recall Dr.

Sarka was made on November 20, 2015 or December 1, 2016.

Attorney Kline was not prepared to "trigger an adverse inference argument." (11/20/15 tr.

12:19-13:10). To the extent Attorney Kline is arguing that the court may have drawn an adverse

inference from Ms. Moulton 's claim of privilege, no adverse inference exists for non party

witnesses in civil cases. (11/20/15 tr. 12: 19-13: 10); see M.R. Evid. 513(c) ("Rule 512 governs a

nonparty witness's claim of privilege in a civil action or proceeding."); M.R. Evict. 512(a) ("The

fact finder may not draw any inference from the claim of privilege.").

D. Court' s Decision to Leave Record Open for Testimony of an OSHA Witness

Attorney Kline argued finally that the court's decision to leave the record open to allow

plaintiff to pursue the testimony of an OSHA witness prejudiced defendant because Attorney

Kline did not want to call his witnesses until he heard the OSHA representative's testimony

(11/20/15 tr. 13: 11-15: 1; 11/19/15 tr. 269:24-275: 18); see M.R. Civ. P. 43U) ("A party who has

rested cannot thereafter introduce further evidence except in rebuttal unless by leave of court.").

Attorney Kline has not shown prejudice as a result of the court's discretionary decision to

leave the record open. See Dalphonse v. St. Laurent & Son, Inc., 2007 ME 53,, 16,922 A.2d

1200 ("The trial court has discretion in determining whether a party may reopen its case after the

close of the evidence.") (citation omitted); New England Hotel Realty. Inc. v. Finley, 508 A.2d

7
121, 122 (Me. 1986) ("The consent of the opposing party to a reopening is not necessary in the

exercise of discretion by the court.").

On December 1, 2016, when the trial resumed, the court addressed Attorney Kline's

requests stated on November 20, 2015. (11/20/15 tr. 15-17; 12/1/16 tr. 3-5.) The requested

transcript of day one and day two of trial was provided to counsel. (12/1/16 tr. 3-4.) Attorney

Kline was given the opportunity to speak to the OSHA witness, Mr. Newton. (12/1/16 tr. 4, 13­

15 .) As discussed, the court offered the opportunity to recall Ms. Moulton or submit her

deposition testimony. (12/1/16 tr. 4-5.) The court's offer was declined. (12/1/16 tr. 304.)

Attorney Kline's request for a mistrial or new trial was denied. (12/1/16 tr. 5.)

FACTS

A. Factual Background

Defendant is a dentist and operates Bath Family Dental. During 2011, in addition to

herself, Bath Family Dental employed plaintiff as a dental hygienist, Ms. Huntington as a dental

hygienist, Ms. Dixon as a dental assistant and later front desk person, Ms. Michaud as a dental

assistant, Ms. Moulton as a dental assistant, and defendant's husband, Mr. Cook, as practice

manager and IT person. As front desk person, Ms. Dixon was responsible for billing, although

Mr. Cook had performed that task previously. Cathy Turbyne was the Occupational Safety and

Health Act (the Act) compliance officer for Bath Family Dental. The dental assistants assisted

defendant and the hygienists. Defendant, Mr. Cook, and Ms. Jacques continued to work at Bath

Family Dental at the time of trial.

During the 2011 timeframe, defendant worked Monday through Wednesday and w_as in

the office on Thursday to do exams for the hygienists' patients. Other employees worked

Monday through Thursday. Bath Family Dental had a benefits policy in effect in 2011. (Def.'s

8
Ex. 5 .) Employees were offered health insurance, vacation pay, uniform allowance, and

continuing education. Employees at Bath Family Dental had yearly trainings with defendant and

Dr. Turbyne.

Plaintiff graduated from Orono High School and attended Bangor Community College.

She left college after a semester and worked as a dental assistant. After working for several

dentists, she returned to dental hygiene school in Bangor and graduated from the two-year

program. She was a clinical instructor at the Bangor dental hygiene school. She worked for a

dentist in Belfast and then for another dentist, Dr. Reedy, for sixteen years. She obtained her

anesthesia license in 1998. She was a clinical instructor for the local anesthesia program. She

also became involved with the Northeast Regional Board of Dental Examiners and was

appointed by the Governor as an examiner for eight years.

She relocated to Portland with her second husband and worked for two dentists until she

took a leave of absence from dental hygiene for two years. She began work for defendant on

July 14, 2008.

Defendant grew up in a dental family because her father was a dentist. She attended the

University of Maine for one year and then attended dental hygienist school in North Carolina.

She worked full-time as a dental hygienist in North Carolina and South Carolina for sixteen to

eighteen years. While working full time, she attended college in North Carolina and received a

B.A. in biology with a minor in chemistry. She then attended dental school full time at the

University of South Carolina and graduated with a Doctor of Medical Dentistry degree in 2005.

She financed her education with loans, the sale of her home, and 401K funds.

She worked with her father in Auburn, Maine and later bought the practice of Dr. Ronald

Sawyer in Bath, which became Bath Family Dental. Dr. Sawyer remained a part-time employee

9
and mentor. The facility and equipment were very old and were not compliant with the Act or

with the Health Insurance Portability and Accountability Act (HIPAA).

Bath Family Dental closed from September 23 until October 2, 2011 for renovations.

The office opened again on Monday, October 3, 2011. The renovations to the office were a

source of pride for defendant and resulted in a dramatic improvement in the practice. Employees

were given paid vacation during the renovations. The project exceeded the estimated cost of

$22,500 by $15,000, which was an unexpected and stressful occurrence for defendant.

Further, during the summer of 2011, money had been stolen from Bath Family Dental

accounts attached to payroll. Defendant borrowed money from her mother to meet the practice's

payroll obligations. Although defendant had planned to hire a part time hygienist in 2011, she

later decided to proceed with three part-time hygienists based on financial issues.

During this 2011 time period, defendant had little energy, was unable to sleep, and

reacted differently to stressful situations because of a hormone imbalance. Shortly after the

events of fall 2011, defendant was diagnosed with an autoimmune form of hypothyroidism,

Ms. Huntington 5 graduated from University of New England in May 2010 and has a

master's degree in dental hygiene. She taught courses in public health, clinical education,

radiology, and dental hygiene ethics at the University of New England for one year. She worked

at Bath Family Dental from July 19, 2010 until October 2011. She then worked as a temporary,

and then full-time, hygienist in Massachusetts for several years. At the time of trial, she was

employed full-time as a dental hygienist in Falmouth. She described everyone at Bath Family

Dental as very aware of the Act's protocol and procedures for infection control. She rode to

5
Ms. Huntington's testimony's about her emotional distress was admitted de bene. That testimony is not
admitted .

10
work at Bath Family Dental with plaintiff and they were good friends. Ms. Huntington described

plaintiff as the best hygienist Ms. Huntington ever worked with and a mentor to her.

During the summer of 2011, Ms. Huntington told plaintiff that Ms. Huntington planned to

leave Bath Family Dental and move to Boston to be with her boyfriend. At that time, plaintiff

had been looking for another job for three years. Ms. Huntington resigned from Bath Family

Dental on October 18, 2011. (Pl.'s Ex. 8.)

Ms. Moulton began part-time work at Bath Family Dental in March 2010 as a dental

assistant. She began working full-time on June 14, 2010. She was trained by a dental assistant

and by defendant. Defendant sent Ms. Moulton to school at defendant's expense. Ms. Moulton

had pleaded guilty to a charge of theft on November 21, 2006 . The Board learned of thi:lt

conviction when Ms. Moulton applied for a radiology license, and she wrote a letter of

explanation. (Def.'s Ex. 44.) She received the license and as a dental assistant can take x-rays.

Eventually it became clear to those at Bath Family Dental that something was amiss with

Ms. Moulton. She spent significant time in the bathroom and took too long to perform her work.

She received two verbal warnings on May 14, 2012, for excessive time in the bathroom and for

inability to perform work in a timely fashion. (Def.'s Exs. 10-11.)

Ms. Moulton also was convicted of OUI on May 11, 2012 . (Def.'s Ex. 7 .) Ms. Jacques

explained to defendant about Ms. Moulton's OUI and referred defendant to the newspaper article

about the incident. (Def.' s Ex. 7 .) Defendant was shocked by this news. Defendant and Mr.

Cook investigated the incident. (See Def.'s Ex. 7. 6) On May 17 and 18, 2012, Ms. Moulton's

father called Bath Family Dental on behalf of his daughter. On May 19, 2012, Mr. Cook sent a

6
The exhibit was admitted to show Mr. Cook followed up on information received .

11
text to Ms. Moulton and asked that she contact him . (Def.'s Ex. 12.7) She was unable to contact

Mr. Cook, however, because she was in a rehabilitation facility. When Ms. Moulton did contact

Bath Family Dental, she requested a 30-day leave. Defendant told Ms. Moulton she was not

welcome back at the office because of the OUI conviction. Defendant also stated Ms. Moulton

would never work in the dental field again. Defendant added that she had learned that Mr.

Grendell had been in the office.

Ms. Michaud began working as a dental assistant at Bath Family Dental with Dr. Sawyer,

previous owner of Bath Family Dental, in November 2006 and began working for defendant in

August 2007. Ms. Michaud worked with plaintiff when she joined the practice in July 2008. At

first, Ms. Michaud thought she and plaintiff got along fairly well . During the 2011 time period,

Ms. Michaud was diagnosed with breast cancer, had a single mastectomy, underwent radiation

and chemotherapy, was preparing for reconstructive surgery, and was wearing a wig.

Ms. Michaud was disciplined because of a complaint by plaintiff involving prophy paste.

According to Ms. Michaud, plaintiff called defendant one evening crying and very upset about

the incident and asked defendant to fire Ms. Michaud. Instead, defendant discussed the incident

with Ms. Michaud, using the Universal Precautions, wrote a warning, and told her to be careful.

Ms. Michaud received a written warning about the prophy paste incident and not effectively

disinfecting treatment rooms. Ms. Dixon confirmed that defendant addressed the issue with Ms.

Michaud. Because of four previous violations, the warning provided Ms. Michaud would be

moved permanently to the front desk if the problem was not corrected. (Def.'s Ex. 45.)

7
The exhibit was admitted to show Mr. Cook sent a text to Ms. Moulton on May 19, 2012 .

12
Ms. Michaud was aware of Ms. Moulton's relationship with Mr. Grendel! and his

interaction with law enforcement. Neither defendant nor Ms. Michaud approved of Mr. Grendel!

and defendant made clear he was not to be in the office.

Ms. Michaud left her employment at Bath Family Dental in December 2014 on good

terms with defendant. Ms. Michaud moved to Florida on December 14, 2014. She described

herself as a "good employee." (Michaud Dep. 49.)

Ms. Dixon worked for ten years as a dental assistant and was hired at Bath Family Dental

in 2011 as a dental assistant. She assisted defendant, the hygienists, and at the front desk. She

left Bath Family Dental in March 2016 and worked at the time of trial as a dental assistant at

another practice.

Ms. Dixon described Bath Family Dental as very clean and organized with strict

guidelines. It was one of the cleanest practices at which she had worked.

Ms. Dixon described plaintiff as "the Queen Bee" of the office and a bully at times. Ms.

Dixon believed that if she did not go along with the way plaintiff and Ms. Huntington wanted

things to be, Ms. Dixon would not be around. Ms. Dixon recalled that Ms. Huntington and

plaintiff discussed work issues during lunch and were not complimentary about defendant. They

were critical of defendant and how the office was run. Sometimes Ms. Dixon did not join the

others for lunch because she disliked the negative conversations. Ms. Dixon recalled plaintiff

calling defendant, as Ms. Dixon testified, a "F'ing B-1-T-C-H," although plaintiff used the entire

words. (12/1/16 tr. 121.) Plaintiff was generally critical of defendant and stated that defendant

would have to fire plaintiff before she would leave. Ms. Dixon recalled Ms. Huntington and

plaintiff stating that they would bring defendant down. Ms. Huntington denied making that

statement.

13
Ms. Dixon received a verbal warning in March 2011 for leaving blood in a treatment

room. She was instructed about her error and allowed to redo the work. (Def.'s Ex. 46.)

Ms. Jacques began working at Bath Family Dental on October 24, 2011. She continued

to work there at the time of trial.

Dr. Turbyne owns an Act compliant risk management and human resource consulting and

training firm. She provides consultation and preventative services to keep dental practices and

staff safe. (Def.'s Ex . 47.) She first worked with defendant when she practiced in Auburn,

Maine and has worked with defendant since she opened her practice. Dr. Turbyne performed an

audit with regard to the Act's requirements in 2007 and an implementation workshop in 2009 at

Bath Family Dental. She performed annual workshops attended by all employees and defendant.

She encouraged the staff to discuss with defendant any difficulties encountered so they could

resolve any issues and decide how to proceed . Dr. Turbyne made many recommendations and

they were implemented .

Dr. Turbyne described defendant as very innovative and totally committed to providing

the safest environment and infection control workplace for patients and staff. Defendant's goal

was consistency and cooperation, an open door policy, and an evidence based program at the

practice . Dr. Turbyne believed the practice was very well prepared and provided a channel for

employees to come forward if they had a problem. She believed Bath Family Dental was one of

the safest practices because of defendant's passion for protection and her compliance.

Dr. Turbyne agreed that appropriate action after a complaint would include defendant's

writing up an employee , enforcing procedures with the employee that had not been followed, and

informing the complainant of that action. If defendant did not take appropriate action, the

employee's complaint to OSHA would constitute appropriate action.

14
B. Concerns of Plaintiff and Ms. Huntington

Plaintiff spoke with defendant several times about infection control issues. Concerns

about hepatitis B and C, HIV, and other blood borne pathogens changed the practice of dentistry

and universal precautions wery adopted by the Center for Disease Control. At Bath Family

Dental, training took place every year through continuing education and from the OSHA

consultant.

Plaintiff agreed she told OSHA that prior to January 2011, there were no health or safety

issues that she noticed or brought to defendant's attention. Plaintiff testified at trial, however,

that beginning in 2010, plaintiff spoke to defendant on a couple of different occasions about Ms.

Michaud loading a sterilizer with contaminated instruments while not wearing gloves. In

response, defendant asked plaintiff to review the issue with Ms. Michaud and train her. Within a

month or two, plaintiff witnessed the same conduct on Ms. Michaud's part and reported the

concern again to defendant. Defendant asked plaintiff again to address the issue with Ms.

Michaud. Plaintiff spoke to defendant again in mid 2011 regarding Ms. Michaud in the

sterilization room.

In September 2011, plaintiff spoke to defendant about finding prophy paste with blood on

the keyboard in what was supposed to be a clean room. Defendant asked plaintiff to speak to

Ms. Michaud. Plaintiff responded that she was not comfortable working with Ms. Michaud any

longer because of her infection control process. Plaintiff suggested Ms. Michaud work at the

front desk and Ms. Dixon return to the clinical area. Defendant was unwilling to make the

change and asked plaintiff again to address the issue with Ms. Michaud. During the

conversation, Ms. Michaud became upset and left the room crying. Ms. Michaud received a

warning about this incident, which noted four previous warnings had been given. (Def.'s Ex. 45.)

15
In 2011, Ms. Huntington noticed sanitary things that were not being done as she believed

they should have been done by the dental assistants. She and plaintiff discussed these concerns.

Ms. Huntington informed defendant about Ms. Dixon leaving blood on an instrument in a room

where another patient had been seated. This occurred in February 2011, shortly after Ms. Dixon

had been hired at Bath Family Dental in January 2011. Ms. Huntington also informed defendant

about Ms. Michaud's not wearing gloves and cleaning a denture with an instrument that was only

to be used on dirty instruments just before the office closed for renovations from September 23

until October 3, 2011. Ms. Huntington stated there were additional issues with Ms. Michaud that

Ms. Huntington did not report to defendant.

Defendant told Ms. Huntington to address the issue herself with Ms. Dixon, which was

done and Ms. Dixon realized she must do a better job. Ms. Huntington discussed several issues

directly with Ms. Michaud, as did plaintiff. According to Ms. Huntington, Ms. Michaud made it

clear she would not change and was not concerned about how she practiced.

Only these few incidents were reported to defendant. The trigger for plaintiff and Ms.

Huntington's decision to file the OSHA complaints was Ms. Michaud's activities and infection

control in the office. Ms. Huntington denied that plaintiff wanted Ms. Michaud terminated. Ms.

Huntington recalled that she and plaintiff wanted Ms. Michaud to work in the front of the office

and not in the clinical area. Defendant recalled that plaintiff did not want to work further with

Ms. Michaud and that plaintiff wanted Ms. Michaud moved to the front desk or fired. Defendant

did not consider firing Ms. Michaud because of her circumstances and because she was a good

employee who made a mistake, was written up, and was counseled.

16
Defendant discussed the issues with Ms. Michaud and Ms. Dixon, wrote them up on the

issues, counseled them, showed them how to do the matter correctly, and asked a hygienist to

address the matter with them. (See Def.'s Ex. 45.)

C. Complaints to OSHA by Plaintiff and Ms. Huntington

Plaintiff and Ms. Huntington discussed "everything" with one another, including

incidents at work. (11/19/15 tr. 113 .) Ms. Huntington decided to contact OSHA with her

anonymous complaint via email to the website on Saturday or Sunday, October 1 or 2, 2011.

She had had no contact with OSHA prior to submitting this complaint. She testified she had a

huge list with approximately twenty things on the list, an entire page long. (11/18/15 tr. 227-28.)

One of her complaints included the lack of a chemical hazard communication program, including

MSDS sheets. She never discussed this issue with defendant or Mr. Cook. Ms. Huntington

never spoke to Dr. Turbyne about these complaints. On October 3, 2011, Ms. Huntington also

sent an email to OSHA representative Mr. Newton with concerns. She complained about

defendant not wearing safety glasses but Ms. Huntington did not include the fact that plaintiff did

not wear glasses with side shields, which Ms. Huntington did not understand was required at the

time of her complaint.

Mr. Newton contacted Ms. Huntington the following day. She knew OSHA would

perform an inspection but did not know when.

Plaintiff spoke to a dentist for whom she had previously worked. She learned she could

not complain anonymously to the Board of Dental Examiners (the Board). She filed a complaint

with OSHA because the complaint could be filed anonymously with that agency. Plaintiff

handed the complaint to the OSHA inspectors during their visit on October 4, 2011; she had

intended to mail the complaint that day. Although plaintiff testified at trial that she and Ms.

17
Huntington did not discuss the timing of the filing of their complaints, plaintiff told OSHA that

she and Ms. Huntington decided it would look better if they did not send both complaints on the

same day. Plaintiff and Ms. Huntington were surprised OSHA arrived for the inspection so

quickly after Ms. Huntington's complaint.

D. OSHA Inspection

OSHA compliance officer Mr. Newton and his supervisor, Karen Billups, arrived at Bath

Family Dental at approximately 11:00 a.m. on October 4, 2011 for an unannounced inspection

regarding a complaint about blood borne pathogens. Standard procedure involves the inspectors

entering every room at the office. A request is made upon arrival to speak to a representative of

management.

At the time, defendant was working on a patient. Mr. Cook was at his desk. Ms. Dixon

buzzed him and said OSHA inspectors wanted to speak to him. Defendant called Dr. Turbyne

midway through the inspection. Dr. Turbyne spoke to one of the inspectors.

Defendant agreed she was unhappy during the surprise OSHA visit, especially because

she was with a patient scheduled for 1.5 hours in treatment room 3. (Def.'s 1?x. 30.) She was

injecting a patient when she heard pounding on cabinets and loud talking, in spite of her usual

effort to control the environment in the office. The patient was rescheduled to return at a later

time in a more comfortable environment.

On direct examination, Mr. Newton testified he introduced himself to defendant, gave her

a copy of the complaint, and told her they would conduct an inspection of the facility. On cross­

examination, he stated he could not remember if he gave the complaint to defendant.

Defendant was upset and could not believe the situation was happening. Based on the

nature of the complaints, it appeared to defendant that the complainant was a hygienist. She

18
said she knew who had complained and would fire them. Mr. Newton told her that was not a

good idea and would be a violation of the OSHA discrimination law, resulting in a

discrimination investigation as well as a health and safety inspection. Defendant then stated she

would find another reason and Mr. Newton emphasized again that doing so would be against the

law . Mr. Newton was focused on potential retaliation. Ms. Billups also advised defendant that if

she fired someone after the inspection, the person would be protected.

Defendant denied that Mr. Newton presented credentials or explained what was

occurring. Defendant tried to calm herself. When Mr. Newton began with small talk, defendant

told him to get on with it and was, she admitted at trial, snippy with him. He gave her the form

with the six complaints made about Bath Family Dental. (Def.' s Ex . 37 .)

Defendant was upset because the inspectors were trying to make small talk during a

serious matter, which she concluded was unprofessional, and because the complaints were

"bogus," in her view. Defendant agreed further that she "said some things that I'm not proud of

saying" and was not happy with her behavior. (11/18/15 tr. 51.) She explained she is serious

about her job , knew what was going on, and believed the complaint to OSHA was bogus. (Id.)

She asked the OSHA inspectors if they realized they were being used and stated the OSHA

inspection was "F'ing ridiculous." (12/1/16 tr. 29.)

Defendant has paid the price, as she testified, for her conduct. As discussed below, she

settled the Department of Labor case filed against her and pays money to plaintiff every month

and will until July 2019. Defendant thought everyone had moved on and believes those at Bath

Family Dental have done so .

After the inspection, the inspectors conducted a closing conference during which they

summarized the alleged violations. (Def.'s Ex. 37.) Mr. Newton did not tell defendant

19
specifically what violations had been found. Mr. Newton told defendant violations had been

found and, again, that it would be unwise to discriminate against employees who participated in

the inspection process. As part of his report, Mr. Newton filed a section ll(c) statement

pursuant to the Act.8 In his 30 years experience at OSHA, Mr. Newton had never experienced

anyone as belligerent and angry as defendant because of an employee complaint and resulting

inspection.

Plaintiff was working on October 4, 2011. During the inspection, she received

information from the representatives but was asked no questions. She did not believe her

anonymity had been respected. Mr. Newton told her he was concerned there would be retaliation

and he wanted her to know she was protected and he gave her contact information. After the

inspection, Ms. Huntington sent several emails to Mr. Newton and Bruce Ross, also an OSHA

employee, about the events in the office after the inspection. There is nothing on this record to

show defendant was aware of these communications, even though the inspection had taken place

and a decision was forthcoming.

A few weeks after the inspection, defendant received a citation via mail. (Def.'s Ex. 38.)

Except for the hazard communication program, listed as "other" violation, none of the citations

was identified in the original complaints and none of the citations was mentioned to defendant by

Mr. Newton. (Compare Def.'s Ex. 37 with Def.'s Ex. 38.)

E. The Aftermath of the Inspection

On the day of the inspection, Bath Family Dental employees were told to leave the office

for lunch. When Ms. Huntington and plaintiff returned from lunch in the park with the others,

8
The section ll(c) statement was offered as an exhibit but was not admitted based on defendant's
objection. (11/18/15 tr. 58-59; Pl.'s Ex. 5.) Mr. Newton's presence at trial was, therefore, necessary.
(12/1/16 tr. 26.)

20
defendant told them she would never trust either of them again. Defendant removed plastic from

the rooms, was yelling, and said she would make their lives miserable. Defendant also said she

had a nice office and it was time for brand new staff. She cancelled her patients for the day,

which was very unusual because of the resulting financial loss. She also put down a pair of

safety glasses and told plaintiff to put them on and gave her a warning. One of the alleged

violations provided to OSHA was that employees were not wearing safety glasses, which is a

requirement listed in the employee handbook. (Def.'s Ex. 37 .) The atmosphere at Bath Family

Dental was tense and stressful from October 4 until October 18, 2011.

Ms. Michaud believed defendant felt she had been let down by an employee and was

upset, tense, and angry. Because of her position as owner and a dentist, however, defendant

continued to do her best for her employees. Ms. Michaud concluded plaintiff had "disrespected"

defendant, had tried to overpower defendant, and tried to take defendant down in a power play.

(Michaud Dep. 30-31.) The two butted heads and "both felt that they were in power" but it was

defendant's practice. (Michaud Dep. 46.) Defendant told Ms. Michaud that they had to remain

focused on work and "let go of what's all happened." (Michaud Dep. 44.)

Plaintiff called Ms. Michaud and told her she needed to get out of Bath Family Practice

and that plaintiff would help with a resume. Ms. Michaud replied, "No. I'm - I'm staying out of

all this.'' (Michaud Dep. 47 .) Plaintiff denied that conversation. Ms. Michaud called plaintiff a

couple of weeks after she left Bath Family Dental and said she wished "we could still be

friends.'' (11/19/15 tr. 185.)

Plaintiff testified at trial she never called defendant a "fucking bitch" but told the OSHA

inspectors she had done that many times during the past three years. Plaintiff testified she had

been looking for work outside Bath Family Dental for perhaps a year befor~ September 2011

21
although Ms . Huntington stated plaintiff had been looking for work for three years and plaintiff

"could very well have" told the OSHA inspectors she had been looking for work for three years.

F. Warnings

Unsatisfactory work notices or warnings had to be approved by defendant, although they

could be prepared by Mr. Cook. Three months after she began work, plaintiff's daughter was

treated by defendant. Plaintiff was disciplined and apologized for stepping out of bounds during

that treatment. (Def.'s Ex . 1.) In her letter to defendant, plaintiff also thanked defendant for her

financial help. (liL) Plaintiff was also warned in April 2010 for losing her temper and yelling in

the office so patients could hear. (Def.'s Ex. 2.) Plaintiff did not have an annual review until

mid-2011 , when defendant appeared satisfied with plaintiff's work .

After the inspection, defendant issued unsatisfactory work notices to plaintiff on October

4, 2011 for not wearing safety glasses; on October 5, 2011 for improper attachment of x-rays 9 ;

on October 5, 2011 for yelling at defendant; on October 7, 2011 for failing to provide a medical

record; on October 10, 2011 for rescheduling a patient without permission; on October 12, 2011

for not saying hello to an employee during the huddle; on October 18, 2011 for having a

beverage in a treatment room; on October 18, 2011 for clocking in before personal activities

were completed; and on October 18, 2011 for failing to make post-op calls . (Pl. 's Ex . 7.)

Failure to correct the October 12, 2011 violation would result in termination. (Id.)

Ms . Huntington had a one-year review with defendant in July 2011. There were no

major negative comments, although there were areas in which she could improve; she was

offered a $2.00 per hour raise . Ms. Huntington had no warnings about her performance prior to

9
Plaintiff told the OSHA inspectors that she did not realize the shots could get mixed up . It was a new x­
ray system and there was a learning curve with the system .

22
the OSHA inspection . After the inspection, she was issued unsatisfactory work notices on

October 5, 2011 for being disrespectful to defendant; on October 12, 2011 for calling a patient

without permission after defendant spoke to Ms. Huntington when the patient called to complain;

and on October 12, 2011 for not providing information during examinations of her hygiene

patients (Pl.'s Ex. 6.) On the third warning, Ms . Huntington was told she would be released from

her job if she did not provide information without being prompted. (Id.)

Three notices were issued to Ms. Huntington on October 18, 2011, one for not calling

patients, one for not testing cavitron tips, and one for clocking in early before personal activities

were completed . The notices provided that Ms . Huntington was placed on three months

probation, would be placed on part time status as of December 8, 2011, and would lose all

benefits. The three October 18 notices provided that the consequence of failure to correct the

problem was termination of employment. (Id .) Ms. Huntington resigned on October 18, 2011.

(Pl.'s Ex. 8.)

After the inspection, defendant and Mr. Cook believed that plaintiff and Ms. Huntington

had been advised of their rights by OSHA and thought they could not be fired. As a result,

defendant believed they did everything in their power to take control of the office and do

whatever they wanted to do. Ms. Michaud described plaintiff as undermining defendant.

(Michaud Dep . 41.) On one occasion, plaintiff asked what someone had to do to be fired. On

another occasion, she stated she loved her job and could not be fired.

Defendant admitted at trial she had mishandled dealing with staff at the beginning of her

ownership of the practice and that plaintiff and Ms . Huntington believed they had power and
.
misused it. When defendant refused to terminate Ms. Michaud as requested, that assertion of

23
power did not sit well with plaintiff and Ms. Huntington. Defendant concluded plaintiff had a bit

too much control of the office and did not have the best interests of Bath Family Dental in mind.

On October 18, 2011, Ms. Dixon recalled plaintiff discussed her dissatisfaction with

defendant and the office in a derogatory way in the waiting room in front of patients, Ms. Dixon,

and a sales representative, Tammy Ann LaRoche. Ms. Dixon reported this conversation to

defendant, who decided to terminate plaintiff because of the conversation, which defendant

considered to be the last straw. In its October 16, 2012 decision, the Unemployment Insurance

Commission found plaintiff participated in an "inadvisable" conversation in the waiting room.

(Pl.'s Ex. 15 9.) After plaintiff was terminated, Mr. Cook walked her to the front door and

locked the door after she left. A few minutes later, he received a phone call from plaintiff

requesting a written termination letter. Plaintiff returned, Mr. Cook typed a letter dated October

18, 2011, and gave it to her that day. (Pl.'s Ex. 9.)

G. Jeremy Grendell Treatment

Mr. Grendell had been the boyfriend of Ms. Moulton since at least 2006. He has criminal

convictions in 2006 for theft and unlawful possession of scheduled drugs, in 2010 for theft and

forgery, and in 2011 for acquiring drugs by deception.

During July 2010, he suffered a broken jaw m a bar fight. On July 20, 2010, Ms.

Moulton was warned about having taken an unscheduled day off because Mr. Grendell needed

medical attention related to his broken jaw. (Def.'s Ex. 3.)

On August 10, 2010, Mr. Grendell was treated by Dr. Sarka, an oral surgeon and friend

of defendant. While there, Mr. Grendell stole prescription papers, wrote a prescription himself,

and presented it to the Bath CVS pharmacy. This conduct resulted in the 2010 convictions for

theft and forgery. Because Dr. Sarka was concerned that Ms. Moulton was associated with Mr.

24
Grendell, was present for the criminal incident at Dr. Sarka's office, and was employed at Bath

Family Dental, Dr. Sarka relayed the details of Mr. Grendell' s conduct to defendant.

Ms. Moulton asked defendant if Mr. Grendel! could receive treatment in the office.

Defendant replied that he could not because he did not qualify under the office benefits

guidelines and because of the incident with Dr. Sarka. Defendant told Ms. Moulton that

defendant did not want that type of influence at the office and that if something negative

happened, Ms. Moulton could be adversely affected.

A "patient of record" is a patient who has been examined by a dentist and has been

provided with a diagnosis or treatment plan by the dentist. (Def.'s Ex. 36.) A person who is not

a patient of record may not be seen when the dentist is not present. A dental hygienist may

perform a cleaning and the tasks associated with a cleaning on a patient of record when the

dentist is not in the office. (Id.)

Typically, a patient is seen first by the front desk person . Their information is entered in

the computer to create a patient record. Plaintiff then meets the patient in the waiting room and

proceeds with treatment. Defendant would then examine the patient. Plaintiff would note any

proposed treatment in the chart and the patient would leave. Billing information was done by the

front desk.

Although he was not on the schedule, Mr. Grendel! visited Bath Family Dental on June

22, 2011. (See,~' Def.'s Ex. 14.) He thought Ms. Moulton had arranged for the visit with

defendant, although nothing was discussed between Ms. Moulton and Mr. Grendell. X-rays

were taken and his teeth were cleaned. He paid nothing for the services. Ms. Moulton did not

speak to defendant about his visiting Bath Family Dental. She agreed at trial that he did not

qualify for free treatment under the benefits plan because she and Mr. Grendel! were not married

25
and that new patients were not scheduled when defendant was not present. The Bath Family

Dental benefits policy made clear only immediate family members, defined as a spouse or child,

could receive treatment at Bath Family Dental. (Def.' s Ex. 5 .) Benefits, of course, are not

required to be provided by the practice. Mr. Grendel! was not a patient of record at Bath Family

Dental on June 22, 2011.

Ms. Moulton did not add Mr. Grendell to the schedule and did not set him up as a new

patient, which was the normal procedure. A history must be taken for a new patient to determine

any medical issues and whether premedication is required before the appointment. This was not

done before Mr. Grendell's treatment. When Ms. Moulton took x-rays, she did not match the x­

rays to Mr. Grendel! in the system because he was not in the system. (See,~' Def.'s Ex. 14.)

X-rays can be deleted unless a chart is opened for a patient.

Ms. Moulton took a full mouth series of x-rays for Mr. Grendell. A review of a report

that shows digital image exams taken from June 20 to June 23, 2011 revealed a full mouth series

of x-rays on a test-test patient was taken on June 22, 2011. A test-test patient was used for

training. (Def.'s Ex. 6.)

Ms. Moulton approached plaintiff about whether she would be willing to clean her

boyfriend's teeth because plaintiff had an opening, in her schedule. Plaintiff met with him,

reviewed his medical history, and determined he was healthy for treatment. Plaintiff performed a

periodontal charting, recorded by Ms. Moulton on paper. According to plaintiff's testimony, she

was not troubled because -she understood Ms. Moulton would transpose the information to a

computer chart. (See Pl.'s Ex. 17 .) After the cleaning, plaintiff continued to her next patient.

26
Plaintiff maintained she did not know Mr. Grendell was not a patient of record of Bath

Family Dental. (Def.'s Ex. 36.) Plaintiff read a paper medical history, as opposed to a history in

the computer, the normal procedure for a patient of record at Bath Family Dental.

Emergency patients were referred to the dentist on call if defendant was not at the office.

Plaintiff had never performed an initial exam on a person who had only a paper record. Plaintiff

used a paper chart for Mr. Grendell, even though paper dental charts were only used at Bath

Family Dental for Give Kids a Smile Day, when Bath Family Dental treated children as a public

service. Plaintiff denied telling Ms. Dixon that Mr. Grendell was not on the schedule and would

not be put on the schedule. She denied printing x-rays for Mr. Grendell or trying to delete his x­

rays with Ms. Huntington, contrary to Ms. Michaud's testimony. (Michaud Dep. 17.) Plaintiff

had never seen anyone except Mr. Grendell and the Give Kids a Smile patients whose records

were not in the computer.

On the computer screen documentation of x-rays taken, a patient's name is listed, unless

the patient was listed as a test, in which case the term "test test" was used. (Def.'s Ex. 6.) Once

a patient's chart is opened, that patient's x-rays appear on the computer screen. When plaintiff

walked into the room where Mr. Grendell was seated, she testified at trial she did not look for a

name. She told the Board it never occurred to her to check the computer to see under whose

name the x-rays were taken. (Def.'s Ex. 16.)

At Bath Family Dental, when a patient of record was treated while defendant was not in

the office, the hygienists and assistants discussed the treatment and x-rays with defendant upon

her return by opening the chart in the computer. That was not done in Mr. Grendell' s case

because, among other reasons, his treatment was not entered in the computer. Although plaintiff

told the Board she had "no reason to think that Jeremy wasn't going to return for a new patient

27
exam with Dr. Cook," that procedure was not the practice at Bath Family Dental. (Def.'s Ex . 16

1.) The procedure used for Mr. Grendel! was contrary to the process in place at Bath Family

dental for years prior to June 22, 2011.

Ms. Huntington was aware Mr. Grendell was at the office on June 22, 2011 and did not

think the visit was inappropriate . She knew he had drug problems.

Ms. Michaud believed that Ms. Moulton and plaintiff were involved together in the

treatment of Mr. Grendel!. Both were together and tried either to delete Mr. Grendell 's x-rays or

scan them. One or the other stated, "[w]e don't want Dr. Cook to find out." (Michaud Dep . 18.)

Ms . Michaud did not report the incident to defendant because Ms . Michaud did not want to get

involved. She was "going through some health issues and [she] had to work with these people,

and [she] didn't want to have any more stress involved in [her] life at the time. It was hard

enough to keep on working and dealing with [her] own situation, so [she] did not tell Dr. Cook."

(Michaud Dep. 17-18.)

Ms. Dixon stated that plaintiff said she would see Mr. Grendell, that they would not talk

about it, and he would not be put in the schedule. Ms. Dixon stated this procedure was unusual

and never done in the office because a paper chart was never used except for Give Kids a Smile

patients. Ms. Dixon did not respond to the Grendell situation and decided it was "best not to get

into it." (12/1/16 tr. 136.) She felt her life could be made miserable because plaintiff and Ms.

Huntington controlled the office and Ms. Dixon had only worked there five months.

At some point between the Grendell visit and May 21, 2012, defendant asked Ms. Dixon

about what had happened with Mr. Grendel! . Ms . Dixon explained what had occurred, felt

extremely bad she had not reported this incident to defendant and apologized. Ms. Jacques also

informed defendant about Mr. Grendell' s treatment. When Ms. Michaud admonished Ms.

28
Jacques for relating the Grendel! treatment to defendant, Ms. Jacques began crying because she

"had been holding so much in for so long." (12/1/16 tr. 178.) In May 2012, defendant

confronted Ms. Michaud and asked about the Grendel! incident and why Ms. Michaud had not

told defendant about it. Defendant was very upset. Ms. Michaud apologized and wrote a letter

explaining the incident at defendant's request.

Mr. Cook prepared a memo 'of events involving Mr. Grendell because defendant and he

determined they would need to remember the events. (Def.' s Ex. 13 .) Defendant was shocked

and devastated to learn what had happened in her office while she was absent.

H. Other Litigation

1. Plaintiff's Unemployment Compensation AppHcation

After leaving Bath Family Dental, plaintiff applied for unemployment. After a phone

conference between plaintiff and a deputy, plaintiff received unemployment compensation

benefits. Defendant opposed the application and argued plaintiff's termination was based on

misconduct. The Administrative Hearing Officer determined plaintiff had been terminated for

misconduct. (Def.'s Ex. 20.) Plaintiff appealed that decision. (Def.'s Ex. 40.) After a two-day

hearing, the Unemployment Insurance Commission overturned the hearing officer's decision by

a two to one vote by decision dated October 16, 2012. (Pl.'s Ex. 15.) Defendant appeared at the

second day of the hearing but did not testify. Defendant appealed that decision pursuant to Rule

80C. M.R. Civ. P. 80C; (Def.'s Ex. 39.)

2. Defendants Board of Dental Examiners Complaint

Defendant took time to think ' about the Grendell incident after she learned about it on

May 21, 2012. She was concerned that Mr. Grendel! could have stolen her prescription pads, as

he had from Dr. Sarka's office . She did not know whether Mr. Grendel! was on drugs at the

29
office and did not believe plaintiff knew he was a drug addict. She continued to worry about the

significant implications to Bath Family Dental and to patient safety and the event continued "to

eat at" her. She had never seen anything like this incident at any office she ever worked in.

Defendant believed plaintiff put the practice in jeopardy by treating a drug addict, stole from the

office by performing more than $350.00 worth of free services, and broke the rules of her

licensure by seeing a new patient when the dentist was not in the office.

On May 24, 2012, defendant decided to file a complaint with the Board against plaintiff

and Ms. Moulton with regard to the dental treatment given to Mr. Grendell. No complaint was

filed against Ms. Huntington.

a. Complaint against Plaintiff

With regard to defendant's allegations against plaintiff, the Board's rules provide that a

dental hygienist may perform certain duties, including cleaning and fluoride treatment on a

patient of record when the dentist is not present. (Def.'s Exs. 15, 31, 32, 34, 36.) Defendant

stated in her complaint, in part,

I have recently been told by 3 of my employees that some stealing
and practicing out of the scope of a dental hygiene license occurred
in my office while I was away on vacation in June of 2011 ...
Normally I would not put in a formal complaint but I have spent a
few good days thinking about the implications to my office and
that my license could have been placed in jeopardy ... Now I am
sick to think that this was going on in my office when I was away .
. . I am scared for the future of hygiene. I was a hygienist for 18
years in the Carolinas and have never seen such blatant disregard
for ones license or ones job. I am reporting this as theft and
working out of the scope of one's license and endangering the
dentists license and the office of Bath Family Dental ... So I had
the privilege of paying her a wage for cheating, lying, and stealing
and breaking the rules of her own licensure.

(Def.'s Ex. 15.)

30
The Board wrote to plaintiff and requested her response to the complaint. (Pl.'s Ex. 11.)

By Jetter to the Board dated June 27, 2012, plaintiff replied, in part,

I did see Jeremy Grendell on June 22, 2011 ... Having known
Jeremy for the 3 years I worked for at that time, it never dawned
on me to look at the computer to see under whose name the x-rays
were taken ... Now this allegation happened over a year ago. Why
is it now just coming about as an issue ... As a note , there is a
Whistle Blowers Protection case ongoing. This Board complaint is
just another form of harassment, retaliation and blacklisting by
Tammy Cook for doing what I had the legal right to do and felt
compelled to do. She is attacking my livelihood by filing this
bogus complaint with the Board. I believe she has been auditing
records of all patients I had seen in the 3lh years I worked for her,
trying to find something to bring against me . . . Dr. Cook found
out because she was intentionally trying to "dig up dirt" on me .

(Def.'s Ex. 16.)

Defendant responded by letter to the Board dated July 20, 2012 to plaintiff's response.

Defendant emphasized her complaint focused on plaintiff's having knowingly exceeded the

scope of her license . Defendant stated, in part:

This complaint is before the Board not because Ms. Shafran
violated office policies and engaged in theft of services, but
because she knowingly exceeded the scope of her license. Ms.
Shafran knew of our policy NOT to see new patients when I was
not in the office. When summarizing our protocol, Ms. Shafran
left out a crucial detail - the Doctor has to be' in the office to do the
oral examination and review the information the hygienist gathers.
Then, if the patient is healthy she can continue on with the
prophylaxis. It has never been the protocol that the patient is
appointed back for the new patient exam. As is obvious, there was
never any intention that this patient be seen by me. Why see the
patient when I was on vacation? Why not properly schedule?
Why delete records? Why not set up an electronic chart? Why not
set up billing? Ms. Shafran knowingly examined a new patient
thereby exceeding the scope of her hygienist's license.

(Def.'s Ex. 17.) Defendant included a statement from Ms. Dixon with the July 20, 2012 letter.

(Id.) A statement from Ms. Dixon was also filed with the May 24, 2012 complaint. (gl)

31
By letter to the Board dated August 16, 2012, which included documents from the

Department of Labor, plaintiff stated, in part,

Also please find enclosed a copy from the U.S. Department of
Labor, Office of the Solicitor, stating that because she violated,
OSH I le Whistleblowers Protection Act they are pursuing action
against Tammy Cook. As I stated in my initial letter to you, I
believe this Board complaint is retaliatory [sic] in nature and Dr.
Cook is trying anything and everything to damage my reputation
and challenge my license, my livelihood.

(Def.'s Ex. 42.) By letter to the Board dated December 9, 2012, which included documents from

the unemployment compensation litigation, plaintiff stated, in part,

Please find enclosed a copy of the Maine unemployment decision,
as well as a copy of the law suit Tammy Cook, DMD has filed
against the Unemployment Commission . . . I hold to my
conviction that this case is retaliatory [sic] and vindictive,
prompted by the OSHA complaint I had filed in October 2011.
After the complaint was filed and subsequent OSHA Inspection,
Dr. Cook went on a witch hunt, trying to dig up anything and
everything to bring against me. I hope this information is helpful
for you in trying to understand her hateful and vindictive nature.

(Def.'s Ex. 43.)

Ms. Huntington wrote a letter to the Board on plaintiff's behalf with regard to

defendant's complaint. (Pl.'s Ex. 13.) A conference with the Board was scheduled for December

14, 2012 but was continued. (Def.'s Exs. 18, 19.) A second conference was scheduled for

February 8, 2013 and a third for April 12, 2013. (Def.'s Bxs. 21, 24.) As required by the

February 2013 settlement agreement in the Department of Labor complaint, defendant informed

the Board by letter dated February 1, 2013 that she would not be further involved and would not

attend Board proceedings. (Def.'s Ex. 22; 23 4.)

By letter dated June 5, 2013, the Board informed plaintiff the Board had dismissed the

complaint against her because it found no violation of the Dental Practice Act. (Def.'s Ex. 26.)

32
The Board did conclude plaintiff violated basic protocols about ensuring that patient care is

recorded in a patient-identifiable record and that x-rays reviewed contain patient-identifying

information. On the same date, the Board issued a letter of guidance, which will remam m

plaintiff's file for five years. (Def.'s Ex. 26.)

b. Complaint against Ms. Moulton

With regard to defendant's allegations against Ms. Moulton, the Board's rules provide

that a dental assistant may take x-rays on a patient of record when the dentist is not present.

(Def.'s Exs. 31, 33, 34, 35.) After defendant's complaint was filed, the Board scheduled a

conference by letter dated May 29, 2013. (Def.'s Ex. 25.) Thereafter, on June 11, 2013, Ms.

Moulton wrote a letter of explanation and apology to the Board. She stated, in part,

In June 2011, Jeremy Grendell came into Dr. Cook's office. He
was not on the schedule and was not a patient of Bath Family
Dental. There was an opening in the schedule so I invited him to
come by. He did not have insurance and his teeth are in bad shape.
I took a full mouth series of x-rays on him and Dottie cleaned his
teeth. These procedures were done without Dr. Cook's permission .
I had a good working relationship with all my coworkers and no
one seemed to mind or be bothered by Jeremy coming to the
office. Jeremy's presenc"e in the office was never discussed again.
I was wrong to bring Jeremy into the office. I owe Dr. Cook a
si ncere apology and I'm willing to pay for the services we
provided that day . I have wronged Dr. Cook and her practice and
would like to take this oppo1tunity to make it right ... 1 respect Dr.
Cook and am truly grateful for the opportunity she gave me ... I
understand the depth and weight my mistakes hold and I am
prepared to deal with the consequences.

(Def.'s Ex . 27 .)

In October 2014, Ms. Moulton reached a consent agreement regarding defendant's

complaint to the Board. Ms. Moulton admitted she was wrong in treating Mr. Grendel!. (Def.'s

Ex.29 ! 3.) The settlement agreement provided, in part,

33
Ms. Moulton admits with regard to [defendant's] complaint she:
engaged in the unauthorized practice of dental radiography on an
individual who was not a patient of her supervising dentist and
without knowledge or permission of her supervising dentist in
violation of 32 M.R.S. §1100-K. Ms. Moulton admits that this
conduct constitutes unprofessional conduct and grounds for
discipline pursuant to 32 M.R.S. § 1100-Q91)(D).

(Def.'s Ex. 29 ! 12(a).)

3. Department of Labor Complaint

On September 7, 2012, the Department of Labor filed a complaint against defendant for

alleged violation of the Act. 29 U.S.C. § 651 et seq. (Pl.'s Ex. 16.) The Secretary of Labor

alleged defendant discharged plaintiff and constructively discharged Ms. Huntington from

employment because of their exercise of their rights secured by the Act and, therefore, in

violationoftheAct. (Pl.'sEx.161,4-5.)

4. Department of Labor and Defendant's Settlement Agreement

In February 2013, defendant entered a settlement agreement with the Department of

Labor regarding the unemployment compensation litigation; the settlement agreement also

addressed defendant's complaint to the Board regarding plaintiff. (Def.'s Ex. 23.) Pursuant to

the terms of the agreement, defendant agreed to, among other things, the following: withdrawal
'
of her appeal of the Commission's unemployment compensation decision (Def.'s Ex. 23 4);

payment of $38,000 to plaintiff and $34,000 to Ms. Huntington as back wages (Def.'s Ex. 23 2­

4); to refrain from providing to a potential future employer any damaging information about

plaintiff or Ms. Huntington (Def.'s Ex. 23 5); and to inform the Board that defendant would not

be involved in and would not attend any further Board proceedings concerning the complaint

against plaintiff, absent certain circumstances. (Def.'s Ex. 23 4.)

34
Defendant did not admit any liability with regard to the Department of Labor's

complaint. (Def.'s Ex. 23 2.) She did, however, accept responsibility for conduct and statements

she regretted and continues to pay money to plaintiff and Ms. Huntington.

Other than the complaint to the Board, plaintiff agreed that she had not heard from any

source that defendant said anything about plaintiff that would in any way damage her reputation,

challenge her license, or impair her livelihood. (11/19/15 tr. 170-71.) Proceedings before the

Board are confidential. 24 M.R.S. § 2510 (2016). There is no record on the Board's website that

any complaint was filed against plaintiff.

5. Plaintiff's Maine Human Rights Commission Complaint

On March 18, 2013, approximately one month after the settlement agreement and while

defendant's complaint against plaintiff to the Board was pending, plaintiff filed a Charge of

Discrimination with the Maine Human Rights Commission against defendant and alleged

retaliation. (Def.'s Ex. 41; see Def.'s Exs. 23, 25.) The Maine Human Rights Commission

issued a Notice of Right to Sue dated February 4, 2014. (Pl.'s Ex. 18.)

6. Plaintiff's Superior Court Complaint

On May 1, 2914, plaintiff filed this six-count complaint against defendant in the

Cumberland County Superior Court. Five counts remain pending.

I. Plaintiff's Reaction 10

Prior to the events of September and October 2011, plaintiff had been treated for

depression for approximately fourteen years. She also had been taking medicine for anxiety and

depression.

JOAlthough no damages are awarded, this testimony affected the court's credibility assessment of plaintiff
and Ms. Huntington.

35
Plaintiff has been a dental hygienist for 28 years and testified her "reputation is

everything." (11/19/15 tr. 20.) She sought medical treatment between October 4 and 18, 2011

because she had an anxiety attack at work. She left work and called her doctor while driving.

The doctor told her to pull over and not drive in that condition. The doctor calmed plaintiff and

prescribed an anti anxiety medicine.

When she was terminated, plaintiff felt humiliated and astounded. She had never received

warnings of that nature and in that amount. She cried. She called her primary care physician

after approximately one week because she was very depressed. The physician recommended

counseling and increased the dosage of plaintiff's prescribed antidepressant, Cymbalta, and she

continued the antianxiety medicine. The Cymbalta dosage was not reduced until approximately

November or December 2014. Plaintiff treated with a counselor for fifteen weeks at $85.00 per

sess10n.

Plaintiff occasionally did not get out of bed. She left her house one or two times per

week to attend counseling. She lost weight and her relationship with her husband suffered. She

had a hard time becoming motivated to look for a job. When plaintiff received a letter from the

Board regarding defendant's complaint, she was stunned and very upset. (Pl.'s Ex. 11.)
'
Plaintiff worked part time doing per diem temp work from January 2012 until June 2012.

Her hours in January and February were sporadic. She returned to full time work in March 2012

and earned more than she had at Bath Family Dental. She received only a few weeks of

unemployment compensation. As a result of defendant's settlement of the complaint filed by the

Department of Labor, plaintiff will be paid back wages of $38,000.00 at a rate of $500.00 per

month.

36
Ms. Huntington witnessed plaintiff having a panic attack and leaving work to see the

doctor. Ms. Huntington had seen plaintiff cry and become emotional previously. From October

18, 2011 until June 2012, Ms. Huntington saw plaintiff every week. Ms. Huntington described

plaintiff as distraught, really upset, discouraged, and depressed. Sometimes she was emotional

and sobbing; sometimes she was a "blank zombie." (11/18/15 tr. 189.) She was also broke and

had been denied unemployment but was unable to look for work. She was crushed because her

name had been in the newspaper in the area where she grew up.

The unemployment case and the Board complaint added to her depression. According to

Ms. Huntington, it was not until plaintiff began working for her current employer and was

appreciated that any change occurred in plaintiff's demeanor.

CONCLUSIONS

Count I: Violation of the Maine Human Rights Act (Whistleblower)

Plaintiff alleges defendant's response to plaintiff's claim for unemployment

compensation and defendant's complaint to the Board violated the Maine Human Rights Act

(MHRA). 5 M.R.S. §§ 4451-4634 (2016). Under the MHRA, unlawful employment

discrimination includes an employer discriminating "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 a protected activity. 5 M.R.S. §

4572(l)(A) (2016); (see Def.'s Ex. 28.)

"A conditional privilege protects against liability for defamation when 'society has an

interest in promoting free, but not absolutely unfettered, speech."' Morgan v. Kooistra, 2008

ME 26, ~ 32,941 A.2d 447; see McCullough v. Visiting Nurse Serv., 1997 ME 55, ~ 11,691

A.2d 1201 ("a conditional privilege .may arise in any situation in which an important interest of

37
the recipient of a defamatory statement will be advanced by frank communication"). Whether a

privilege exists is "based on the totality of the circumstances, looking at the 'interests of the

publisher and the recipient."' Morgan, 2008 ME 26,, 32,941 A.2d 447. The court concludes

defendant's response to plaintiff's application for unemployment compensation and defendant's

complaint to the Board were conditionally privileged.

The issue is whether defendant abused the privilege because her response and complaint

were made with malicious intent. McCullough, 1997 ME 55,, 11,691 A.2d 1201.

Malice includes making a statement knowing it is false, with a
reckless disregard for its truth, or acting out of spite or ill will. A
reckless disregard for the truth exists only if the speaker had a
"high degree of awareness of the probable falsity or serious doubt
as to the truth of the statement."

Morgan, 2008 ME 26,, 34,941 A.2d 447; Rippett v. Bemis, 672 A.2d 82, 87 (Me. 1996); Onat

v. Penobscot Bay Med . Ctr., 574 A.2d 872,874 (Me. 1990).

The court concludes, based in particular on the credible testimony of Ms. Michaud and

Ms. Dixon, who have no particular personal interest in the outcome of this trial, that Bath Family

Dental was not an enjoyable place to work during 2011. Defendant experienced significant

personal, professional, and financial stress during 2011. She entered a settlement agreement with

regard to her conduct during that time period. (Def.'s Ex. 23.)

Not all responsibility for the work environment at Bath Family Dental during 2011 can be

attributed to defendant's volatile personality, however. She also faced conflict from within the

practice and a desire by plaintiff to control in some way that environment. In spite of her own

inconsistent statements and the credible testimony to the contrary from other witnesses, plaintiff

maintained throughout trial that her professionalism was beyond reproach. This record,

38
including her own statements to the Board about defendant and the treatment of Mr. Grendell,

does not support that assertion. (Compare Def.'s Ex. 15 with Def.'s Exs. 16, 42, 43.)

Ms. Huntington agreed that only three instances of concern were raised directly with

defendant before Ms . Huntington and plaintiff determined to report defendant to OSHA

anonymously. Of Ms. Huntington's six complaints to OSHA, only one was substantiated and

that was listed as an "other" violation. Based on this record and the testimony of Dr. Turbyne ,

defendant acted appropriately when the complaints were made. Defendant did not act as

specifically requested by plaintiff and Ms. Huntington with regard to Ms. Michaud. Defendant

has now "paid the price," as she testified, for her reaction to the complaints and resulting

inspection, but the motivation for the complaints, on this record, is questionable.

Defendant testified that plaintiff's negative remarks about Bath Family Dental in front of

patients and a sales representative was the "last straw." Ms. Dixon confirmed plaintiff's

conversation. The Unemployment Insurance Commission found plaintiff participated in an

"inadvisable" conversation with a representative in the waiting room. Although the February

2013 settlement agreement resolved the issue of plaintiff's termination for the purposes of

unemployment compensation, defendant did not admit the allegations in the Department of

Labor complaint.

Defendant's statements to the Board are, however, the true focus of plaintiff's complaint.

Defendant attended years of education and incurred significant debt to become a dentist and open

and operate successfully Bath Family Dental. She provided employment for several people,

helped them financially, offered benefits and continuing education, and sent them to school. She

testified that she was shocked and devastated when she learned that a drug addict and convicted

criminal, who had stolen a prescription pad from another dentist and written prescriptions, had

39
been treated in her practice during her absence, in violation of several provisions of office

protocol and in violation of her previous refusal to treat him. She was concerned about patient

safety and potential damage to the practice and her dental license. That testimony is credible and

her reaction to the fact that her employees surreptitiously engaged in this conduct was justified.

Plaintiff's testimony that she assumed Mr. Gren dell was a patient of record, she assumed

his information would be entered in the computer, in spite of the fact Ms. Moulton, his girlfriend,

was writing the information on paper, and her statement it never "dawned" on her to look for a

name on the x-rays was not credible. Plaintiff's use of a paper chart, her failure to look for a

name on the x-rays, and the fact that Mr. Grendell' s treatment was never discussed with

defendant upon her return violated longstanding standard protocols at Bath Family Dentist. Mr.

Grendel! paid nothing for his treatment performed by Bath Family Dental employees who were

being paid for their services.

The terms of the settlement agreement precluded defendant's participation at the

conference with regard to defendant's complaint to the Board. Accordingly, the Board decided

the matter without hearing from one of the parties . The Board found Ms. Moulton engaged in

the unauthorized practice of her license based on her treatment of Mr. Grendell. The Board

found no violation of plaintiff's license based on her treatment of Mr. Grendell. There appear to

have been no culpable state of mind requirements in the applicable statutes. See 32 M.R.S. §§

1100-Q(l)(D) (2015), repealed hy P.L. 2015, ch. 429 § 17 (effective July 29, 2016)

("Unprofessional conduct. In this context, unprofessional conduct means the violation of a

standard of professional behavior that through professional experience has been established in

the practice of dental radiography."); 1077(2)(F) (2015), repealed hy P.L. 2015, ch. 429 § 17

(effective July 29, 2016) ("Unprofessional conduct. A licensee is considered to have engaged in

40
unprofessional conduct if the licensee violates a standard of professional behavior that has been

established in the practice for which the licensee is licensed."). The Board did issue a letter of

guidance based on plaintiff's violation of basic hygienist protocols.

Accordingly, there is support in this record for defendant's challenge to plaintiff's receipt

of unemployment compensation based on a termination for misconduct. Further, this record

supports defendant's complaint to the Board. The court does not conclude that defendant acted

with malice in her challenge to plaintiff's unemployment compensation or defendant's complaint

about plaintiff to the Board. As discussed,

Malice includes making a statement knowing it is false, with a
reckless disregard for its truth, or acting out of spite or ill will. A
reckless disregard for the truth exists only if the speaker had a
"high degree of awareness of the probable falsity or serious doubt
as to the truth of the statement."

Morgan, 2008 ME 26, ~ 34,941 A.2d 447.

Count III: Intentional Infliction of Emotional Distress

In order to prevail on this claim, plaintiff must prove the following:

(1) the defendant intentionally or recklessly inflicted severe emotional
distress or was certain or substantially certain that such distress would
result from [defendant's] conduct;
(2) the conduct was so extreme and outrageous as to exceed all possible
bounds of decency and must be regarded as atrocious, utterly
intolerable in a civilized society;
(3) the actions of the defendant caused the plaintiff's emotional distress;
and
(4) the emotional distress suffered by the plaintiff was so severe that no
reasonable [person] could be expected to endure it.

Curtis v. Porter, 2001 ME 158, ~ 10, 784 A.2d 18 (internal quotation marks omitted).

Defendant's conduct was not "so extreme and outrageous as to exceed all possible bounds of

decency and must be regarded as atrocious, utterly intolerable in a civilized society." Id.; see

41
Bratton v. McDonough, 2014 ME 64,, 22, 91 A.3d 1050; Champagne v. Mid-Maine Med. Ctr.,

1998 ME 87,' 16,711 A.2d 842.

Count IV: Nel!ligent Infliction of Emotional Distress

Plaintiff does not allege a separate negligent infliction of emotional distress claim. See

Jacobi v. MMG Ins . Co., 2011 ME 56,, 17, 17 A.3d 1229. The claim must be based on a

separate underlying tort that allows recovery for "mental anguish and loss of enjoyment of life"

or the claim may be subsumed in the claim for intentional infliction of emotional distress.

Curtis, 2001 ME 158, ,, 19-22, 784 A .2d 18; Kopenga v. Davric Maine Corp ., 1999 ME 65,,

18, 727 A.2d 906. As discussed above, the court determines the conditional privilege was not

abused and, therefore, there is no separate tort on which to base this claim.

Count V: Defamation

The elements of defamation include: (1) a false and defamatory statement concerning

another; (2) an unprivileged publication to a third party; (3) fault amounting to at least

negligence on the part of the publisher; (4) either actionability of the statement irrespective of

special harm or the existence of special harm caused by the publication. Rippett, 672 A.2d at 86.

As discussed above, the court determines the conditional privilege was not abused. See Cole v.

Chandler, 2000 ME 104,, 19,752 A.2d 1189.

Count VI: Slander Per Se

"Slander per se refers to spoken defamatory statements that 'relate to a profession,

occupation or official station in which the plaintiff was employed. Malice is implied as a matter

of law in such cases, and the claimant may recover compensat~ory damages without proving

special damages."' Cookson v. Brewer School Dep' t, 2009 ME 57,, 27, 974 A.2d 276 . As

42
discussed above, the court determines the conditional privilege was not abused. See Saunders v.

Van Pelt, 494A.2d 1121, 1124-25 (Me. 1985).

The entry is

Judgment is entered in favor of Defendant, Tammy Cook, d/b/a
Bath Family Dental and against Plaintiff Dorothy Shafran on
Counts I, III, IV, V, and VI of Plaintiff's Complaint.

Date: March 13, 2017
Nancy Mills
Justice, Superior Court

43
I t

PORSC-CV-2014-00213 l DOROTHY SHAFRAN VS TAMMY COOK OBA BATH FAMILY DENTAL

~
, Search

Filter attorneys for party: - Ali.Parties ­

~ ~ ~ Attorney Party Representation Type Representat~on Date

~ ~ SuHivan, Eugene Dorothy Shafran -1 Pia... Retained 11/16/2015
~ ISi:'.I Kline, Robert Tammy Cook - 2 Defen... Retained 07/25/2014
~ Mehnert, Cynthia Dorothy Shafran - 1 Pia... Retained 05/01/2014
~ ISi:'.I Mehnert, Eric Dorothy Shafran - 1 Pia... Retained 05/01/2014
IN I ERED DEC o 5 2014

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
Docket No. CV-14-213
N~-(;l,AJ'»-11~~(1-Ji
DOROTHY SHAFRAN,

Plaintiff ORDER ON DEFENDANT'S
MOTION TO DISMISS AND
V. MOTION TO STRIKE

TAMMY COOK d/b / a
BATH FAMILY DENTAL,

Defendant

Before the court are defendant's motion to dismiss plaintiff's complaint in

its entirety and defendant's motion to strike exhibits included with plaintiff's

response to defendant's motion to dismiss. M.R. Civ. P. 12(b)(6) & 12(f).

In her complaint, plaintiff alleges that during her employment at

defendant's dental office, she complained to OSHA concerning certain health

practices in defendant's office. (Compl. <JI 7.) She alleges that after the complaint,

Dr. Cook issued unfounded and retaliatory disciplinary warnings against

plaintiff and discharged her from employment. (Compl. <JI<JJ:12, 13.) Plaintiff

alleges further that Dr. Cook interfered in plaintiff's effort to obtain

unemployment compensation and filed a complaint against plaintiff with the

Maine Board of Dental Examiners. (Compl. <JI<JJ:16, 18.) Plaintiff filed a complaint

with the Maine Human Rights Commission and was issued a right to sue letter

on February 4, 2014. (Compl. <JI<JI 21, 23, 25.)
On May 1, 2014, plaintiff filed this lawsuit. She alleges the following:

count I: Violation of the Maine Whistle blower's Protection Act; count II: False

Light; count III: Intentional Infliction of Emotional Distress; count IV: Negligent

Infliction of Emotional Distress; count V: Defamation; count VI: Slander Per Se.

In lieu of an answer, defendant filed the pending motion to dismiss on July 25,

2014 and attached two exhibits to the motion. Plaintiff attached five exhibits to

her response to the motion. With the reply to plaintiff's opposition, defendant

filed a motion to strike plaintiff's exhibits.

For the following reasons, the motion to dismiss is granted in part and

denied in part. The motion to strike is granted.

FACTS

The following facts are taken from plaintiff's complaint. Defendant

Tammy Cook is a dentist whose business, Bath Family Dental, is located in Bath,

Maine. (Compl. <fr 2.) Plaintiff Dorothy Shafran worked as a hygienist for

defendant from July 2008 to October 18, 2011. (Compl. <fr 3.)

In late 2010, plaintiff became concerned about infection control lapses in

defendant's office. (Compl. <fr<fr 4-5.) After discussing her concerns with

defendant to no avail, plaintiff filed a complaint with OSHA alleging a number

of health and safety hazards at the Bath Family Dental office. (Compl. <fr16-7.) In

response to plaintiff's complaint, OSHA inspectors conducted an inspection of

defendant's office on October 4, 2011. (Compl. <fr 8.)

During the OSHA inspection, defendant told the OSHA inspectors that

she knew who filed the complaint and would fire those individuals. (Compl. <fr

9.) The OSHA inspectors advised defendant that firing an employee for making

an OSHA complaint would violate OSHA's whistleblower protections. (Compl.

2
10.) Defendant responded that she would fire the responsible individuals for

another reason and no one would be able to prove it was connected to the OSHA

complaint. (Compl. 9I 10.) After the inspectors left, defendant immediately made

statements that she suspected plaintiff was involved in filing the OSHA

complaint. (Compl. 9I 11.)

During the next two weeks, defendant began issuing to plaintiff

unfounded and retaliatory disciplinary warnings. (Compl. <[ 12.) These warnings

culminated in plaintiff's termination on October 18, 2011. (Compl. 9I 13.) As a

result of defendant's retaliatory actions, the U.S. Department of Labor filed a

complaint against defendant. (Compl. 9I 14.) Defendant entered a consent

agreement with the Department of Labor on February 4, 2013. (Compl. 9I 15.)

After plaintiff was fired, she sought unemployment compensation.

(Compl. 9I 16.) Defendant challenged plaintiff's right to unemployment

compensation and stated plaintiff had been discharged for misconduct. (Compl.

<[ 16.) After a lengthy appeal process, the Unemployment Insurance Commission

found that plaintiff had not engaged in misconduct that warranted discharge.

(Compl. 9I 17.)

On May 23, 2012, defendant filed a complaint against plaintiff with the

Maine Board of Dental Examiners (the Board). (Compl. <[ 18.) In her complaint,

defendant alleged that plaintiff had engaged in "theft and working out of the

scope of one's license and endangering the dentist's license." (Compl. 9I 18.)

Defendant concluded in her complaint, "So I had the privilege of paying

[plaintiff] a wage for cheating, lying, stealing, and breaking the rules of her own

licensure." (Compl. 9I 19.) On June 5, 2012, the Board voted to dismiss the

complaint and found "no violation of the Dental Practice Act." (Compl. 'lI 20.)

3
DISCUSSION

A. MOTION TO STRIKE

Defendant filed a motion to strike the exhibits attached to plaintiff's

response to the motion to dismiss. M.R. Civ. P. 12(f). In fact, both parties

attached exhibits to their pleadings. "The general rule is that only the facts

alleged in the complaint may be considered on a motion to dismiss ...." See

Moody v. State Liquor & Lottery Comm'n, 2004 ME 20, <JI 8, 843 A.2d 43.

Although there are exceptions to the general rule, the majority of the parties'

exhibits do not come within the exceptions, are incomplete, and inadmissible. Id.

<JI 10. Further, such additional evidence is better considered on a motion for

summary judgment, when the court has the benefit of the organizing principles

of Rule 56. The court has not considered these exhibits in deciding this motion

to dismiss.

B. MOTION TO DISMISS

1. Standard of Review

On review of a motion to dismiss for failure to state a claim, the court

accepts the facts alleged in plaintiff's complaint as admitted. Saunders v. Tisher,

2006 ME 94, <JI 8, 902 A.2d 830. The court then examines those facts "in the light

most favorable to 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." Doe v. Graham, 2009 ME 88, <JI 2, 977 A.2d 391 (quoting Saunders,

2006 ME 94, <JI 8, 902 A.2d 830). "For a court to properly dismiss a claim for

failure to state a cause of action, it must appear 'beyond doubt that [the] plaintiff

is entit!ed to no relief under any set of facts that might be proven in support of
the claim."' Dragomir v. Spring Harbor Hosp., 2009 ME 51, <JI 15, 970 A.2d 310

(quoting Plimpton v. Gerrard, 668 A.2d 882, 885 (Me. 1995)).

2. Whistleblower Protection Act Claim (Count I); Defamation (Count V),
and Slander Per Se (Count VI)

a. Conditional Privilege or Absolute Privilege

Defendant first argues that the basis for plaintiff's complaint, defendant's

letter to the Board, is a privileged communication and defendant cannot be liable

for her statements in that letter. Plaintiff argues that while the communication

may be conditionally privileged, the defendant has either abused that privilege

or acted outside the scope of her reporting obligations.

The first issue is the extent of the reporting privilege under the Maine

Health Security Act. The provision granting immunity under certain

circumstances, 24 M.R.S. § 2511 (2013), provides:

Any person acting without malice, any physician, podiatrist, health
care provider, health care entity or professional society, any
member of a professional competence committee or professional
review committee, any board or appropriate authority and any
entity required to report under this chapter are immune from civil
liability:

1. Reporting. For making any report or other information
available to any board, appropriate authority, professional
competence committee or professional review committee
pursuant to law;

Interpretation of this section requires a determination of whether the phrase

"acting without malice" applies to physicians and health care providers. In

Benjamin v. Aroostook Medical Center, the federal district court of Maine

appeared to apply the "acting without malice" standard to any report, regardless

of who made it. 937 F. Supp. 957, 975 (D. Me. 1996). The Law Court has applied

this section, but found it unnecessary "to express an opinion whether the

5
immunity provided by section 2511 is absolute or conditioned on the reporter

acting without malice ...." McCullough v. Visiting Nurse Serv. of S. Me., Inc.,

1997 ME 55, <JI 14,691 A.2d 1201.

Under a plain language interpretation, "acting without malice" must

apply only to "any person" and not to physicians and the other entities explicitly

listed in this section. This interpretation of the statute is explicitly set forth in the

legislative history of an amendment to this section, which explains the old law

and how the section was amended:

Under existing law, immunity from civil and criminal liability is
accorded in certain circumstances to any person, physician, health
care provider, physicians' professional society, physicians'
professional competence committee member or member of the
medical or osteopathic board or related health care authority. The
immunity applies if an individual or organization in the list above
acts without malice in reporting information to an appropriate
health care board or authority, in assisting in preparing information
to be so reported, or in assisting the board or authority to carry out
its duties with regard to the health care profession.

Section 5 makes 3 substantive changes in the existing law.

Third, section 5 accords physicians and the listed health care
organizations immunity for reporting to and assisting a pertinent
health care board, authority or committee without regard to
whether the actions were with malice. This blanket immunity is not
accorded to other persons reporting to or assisting the health care
boards, authorities or committees; the 'malice' standard remains for
these persons.

[B]lanket civil immunity, as opposed to immunity applying a
'malice' standard, is accorded physicians and the listed health care
organizations because they, as opposed to other persons, have
certain duties to report imposed by the Maine Health Security Act.

L.D. 2520, Statement of Fact,§ 5, at 11-12 (113th Leg. 1988). If defendant's letter

to the Board is a report by a physician or one of the listed health care

organizations that has a duty to report, defendant is absolutely immune from

civil liability for any statements in,that report.

6
Defendant, a dentist, is not a "physician" as defined by the MHSA. The

Act defines physician as "any natural person authorized by law to practice

medicine, osteopathic medicine or veterinary medicine within this State." 24

M.R.S. § 2502(3). The Act defines health care practitioner as "physicians and all

others certified, registered or licensed in the healing arts, including, but not

limited to, nurses, podiatrists, ... dentists ...." Id. § 2502(1-A). If the term

"physician" included dentists, the inclusion of dentists as a separate group in the

definition of health care practitioner would not be required.1

Defendant's letter could be a report by a health care provider as defined

under the MHSA. Health care provider is defined as "any hospital, clinic,

nursing home or other facility in which skilled nursing care or medical services

are prescribed by or performed under the general direction of persons licensed to

practice medicine, dentistry, podiatry or surgery in this State and that is licensed

or otherwise authorized by the laws of this State." 24 M.R.S. § 2502(2). Under

this definition, defendant's dental office is a health care provider. There may be

a factual issue as to whether the letter was written on behalf of the dental office

as an entity or whether it was a personal letter from the defendant.

Assuming that the letter is from a health care provider, the next question
2
is whether the report was made "pursuant to law." Defendant argues that the

1 The definition of health care provider in the Act also supports the conclusion that a
dentist is not a physician. That definition includes persons "licensed to practice medicine,
dentistry, podiatry, or surgery ...." 24 M.R.S. § 2502(2). The definition of "physician"
applies only to individuals "licensed to practice medicine." Id. § 2502(3). If practicing
dentistry is the "practice of medicine," the legislature would not have listed dentistry as
a separate practice.
2 Arguably, section 2511 could be read to provide blanket immunity to health care
provider reports, regardless of whether they were made pursuant to a statutory duty to
report Given the plain language of the statute, however, which states "any entity
required to report" and the legislature's rationale for granting these entities blanket

7
report was either required or authorized pursuant to two sections of the MHSA.

First, defendant argues that 24 M.R.S. § 2506 required the report. That section

states:

A health care provider or health care entity shall, within 60 days,
report in writing to the disciplined practitioner's board or authority
the name of any licensed, certified or registered employee or
person privileged by the provider or entity whose employment,
including employment through a 3rd party, or privileges have been
revoked, suspended, limited or terminated or who resigned while
under investigation or to avoid investigation for reasons related to
clinical competence or unprofessional conduct, together with
pertinent information relating to that action.

Under this section, the report "shall be made within 60 days" of either

termination or another event adverse to the health care practitioner. The statute

requires a report only when the actions described in the report led to the

termination or other adverse action. McCullough, 1997 ME 55, <JI'i[ 12-14, 691

A.2d 1201 (finding two letters privileged where the letters contained information

about the basis for the termination and the specific details about the incidents

leading to termination). In this case, according to the complaint, the report was

not made within 60 days 3 and the report did not concern actions that led to

plaintiff's termination. (Compl. 'i['JI 18-19.) Defendant was, therefore, not

obligated to file a report under this section.

Defendant also relies on 24 M.R.S. § 2505, which states:

Any professional competence committee within this State and any
physician or physician assistant licensed to practice or otherwise
lawfully practicing within this State shall, and any other person
may, report the relevant facts to the appropriate board relating to

immunity, the better interpretation is to apply blanket immunity only to those reports
that are required by law. 24 M.R.S. § 2511; see also McCullough, 1997 ME 55, <JI 14, 691
A.2d 1201 (health care provider "fulfill[ed] its obligation to report [plaintiff's]
termination to the board").
3 Defendant relies on facts that do not appear in the complaint when addressing the 60­
day requirement. (Def.'s Mem. 4-5.)

8
the acts of any physician or physician assistant in this State if, in the
opinion of the committee, physician, physician assistant or other
person, the committee or individual has reasonable knowledge of
acts of the physician or physician assistant amounting to gross or
repeated medical malpractice, . . . professional incompetence,
unprofessional conduct or sexual misconduct identified by board
rule.

This section cannot apply to defendant's letter because the section applies only to

reports relating to the acts "of any physician or physician assistant." Plaintiff is
4
neither a physician nor a physician assistant.

Because defendant was not obligated to make a report under the MHSA,

defendant does not receive absolute immunity for her letter. It is not clear that

section 2511 applies to defendant's report if that report was not authorized

"pursuant to" the MHSA. 24 M.R.S. § 2511(1). Nevertheless, the communication

could be conditionally privileged under the common law. See Morgan v.

Kooistra, 2008 ME 26, 'il 32, 941 A.2d 447 (" A conditional privilege protects

against liability for defamation when society has an interest in promoting free,

but not absolutely unfettered, speech." (internal quotation marks omitted)). As

explained below, because the motion to dismiss should be denied even if the

communication is conditionally privileged, the court does not decide at this point

whether a privilege applies.

b. Applying the Malice Standard

Assuming that the malice standard applies to defendant's report, plaintiff

has alleged facts that could support a finding of malice. "Malice includes making

a statement knowing it is false, with a reckless disregard for its truth, or acting

4 As explained above, because defendant herself is not a physician or physician assistant,
defendant could make the report only under the clause relating to "any person."
Authorized reports from "any person" would not receive blanket immunity. See 24
M.R.S. § 2511 (11 Any person acting without malice ....").

9
out of spite or ill will." Id. CJ.I 34. Plaintiff's complaint alleges that defendant

made statements to an OSHA inspector that she was going to fire plaintiff for

filing an OSHA complaint. (Compl. 9I 10.) Plaintiff further alleges that she was

issued unfounded disciplinary warnings that led to her termination within two

weeks of the OSHA inspection. (Compl. 9I9I 12-13.) Defendant then opposed

plaintiff's ability to receive unemployment benefits. (Compl. 9I 16.) Plaintiff

quoted statements from defendant's letter to the Board, which could demonstrate

defendant's acrimony towards plaintiff. (Compl. 9I9I 18-19.) These alleged facts

are sufficient to support a finding that defendant acted with malice in making the

report to the Board.

Because defendant is not immune from civil liability, counts I, V, and VI of

the complaint will not be dismissed.

3. False Light (Count II)

Defendant argues plaintiff's complaint fails to state a cause of action for

false light because there is no allegation of publicity, an element of the tort

Maine follows the Restatement's formulation of the tort of false light invasion of

privacy, which states:

One who gives publicity to a matter concerning another that places
the other before the public in a false light is subject to liability to the
other for invasion of his privacy, if (a) the false light in which the
other was placed would be highly offensive to a reasonable person,
and (b) the actor had knowledge of or acted in reckless disregard as
to the falsity of the publicized matter and the false light in which
the other would be placed.

Cole v. Chandler, 2000 ME 104, 9I 17, 752 A.2d 1189 (quoting Restatement

(Second) of Torts§ 652E (1977)). "Publicity" is defined by the Restatement as:

"Publicity," as it is used in this Section, differs from "publication,"
as that term is used in § 577 in connection with liability for
defamation. "Publication," in that sense, is a word of art, which

10
includes any communication by the defendant to a third person.
"Publicity," on the other hand, means that the matter is made
public, by communicating it to the public at large, or to so many
persons that the matter must be regarded as substantially certain to
become one of public knowledge.

Id. (quoting Restatement (Second) of Torts§ 652D cmt. a (1977)).

In a recent federal case, the court applied Maine law and dismissed a false

light claim where the only allegations in the complaint were that the defendant

"inform[ed] the Plaintiff's prospective employers and/ or medical staffing

agencies that the Plaintiff had been dismissed from the Hospital for

unsatisfactory performance." Murtagh v. St. Mary's Reg'l Health Ctr., 2013 WL

5348607, at *9 (D. Me. 2013). The court concluded that these allegations were

insufficient to satisfy the publicity requirement. Id.

Plaintiff's complaint alleges only that defendant's statements and written
5
complaint to the Board form the basis of her false light claim. The complaint

fails to allege publicity. Accordingly, count II of plaintiff's complaint is

dismissed.

4. Intentional Infliction of Emotional Distress (Count III)

Defendant argues that she is entitled to judgment on count III because the

alleged conduct of filing the report is not extreme and outrageous as a matter of

law. A plaintiff must demonstrate the following elements to prevail on an

intentional infliction of emotional distress claim:

(1) the defendant intentionally or recklessly inflicted severe emotional
· distress or was certain or substantially certain that such distress
would result from [defendant's] conduct;

5 The Board is generally required to keep complaints confidential. 24 M.R.S. § 2510.

11
(2) the conduct was so extreme and outrageous as to exceed all
possible bounds of decency and must be regarded as atrocious,
utterly intolerable in a civilized community;

(3) the actions of the defendant caused the plaintiff's emotional
distress; and

(4) the emotional distress suffered by the plaintiff was so severe that
no reasonable [person] could be expected to endure it.

Curtis v. Porter, 2001 ME 158, <JI 10, 784 A.2d 18 (internal quotations marks

omitted). "[I]t is for the court to determine in the first instance whether the

defendant's conduct may reasonably be regarded as so extreme and outrageous

to permit recovery." Lougee Conservancy v. CitiMortgage, Inc., 2012 ME 103, <JI

26, 48 A.3d 774 (internal quotation marks omitted). Defendant relies on cases in

which the courts held that a plaintiff could not recover as a matter of law because

the alleged conduct did not meet the "extreme and outrageous" standard.

Botka v. S.C. Noyes & Co., Inc., 2003 ME 128, <JI 19, 834 A.2d 947; Staples v.

Bangor Hydro-Electric Co., 561 A.2d 499, 501 (Me. 1989); Osgood v. C.U. York

Ins. Co., 2006 WL 1980396, at *7 (Me. Super. June 5, 2006).

As plaintiff points out, however, all of these cases were decided on

summary judgment. Plaintiff has alleged that defendant engaged in a campaign

to destroy her professional reputation, which included baseless disciplinary

warnings and a defamatory letter to the Board. (Compl <JI<JI 12, 13, 18, 19, 27, 32,

36.) Because the specific facts may be important regarding whether the

defendant's conduct was extreme and outrageous, the court denies the motion to

dismiss the intentional infliction of emotional distress claim. Bratton v.

McDonough, 2014 ME 64, <JI 23, 91 A.3d 1050 (explaining that if reasonable

people may differ as to whether conduct is "extreme and outrageous," a

12
defendant is not entitled to judgment as a matter of law). Count V of the

complaint will not be dismissed.

5. Negligent Infliction of Emotional Distress (Count IV)

Defendant argues that plaintiff's negligent infliction of emotional distress

claim fails as a matter of law. A separate negligent infliction claim is limited to

situations involving bystander liability, a special relationship between the

tortfeasor and the plaintiff, or a separate, independent tort that is the cause of the

emotional distress. Jacobi v. MMG Ins. Co., 2011 ME 56, ~ 17, 17 A.3d 1229. There

are no allegations in the complaint regarding bystander liability or a special

relationship between the parties. Thus, if plaintiff can recover for negligent

infliction of emotional distress, the claim must be based on a separate underlying

tort.

Plaintiff has alleged defamation and slander per se. A defamation claim

could constitute the underlying tort for the purposes of plaintiff's negligent

infliction of emotional distress claim. See Packard v. Cent. Me. Power Co., 477

A.2d 264, 269 (Me. 1984) (affirming trial court's decision granting defendant

judgment notwithstanding the verdict on plaintiff's negligent infliction of

emotional distress claim where the jury found for defendant on the underlying

defamation claim). Although as alleged, negligent infliction of emotional distress

is not an independent claim in this case, plaintiff could recover under this theory

if she prevails on her defamation claim. Count IV of the complaint will not be

dismissed.

13
The entry is

Defendant's Motion to Strike is GRANTED.

Defendant's Motion to Dismiss is GRANTED as
follows: Count II of Plaintiff's Complaint 1s
DISMISSED. Defendant's Motion to Dismiss is
DENIED on Counts I, III, IV, V, and VL

tZt '/tj
Date: ---''--'---------,1'---­
//.
Nancy Mills
Justice, Superior

CUMBERLAND-CV-14-213

14
CLERK OF COURTS
Cumberland County
205 Newbury Street, Ground Floor
Portland, ME 04101

CYNTHIA t~H.l\lf.:R~ F.SQ
HAWKES & MEHNERT
PO BOX 458
ORONO ME 04473

CLERK OF COURTS
Cumberland County
205 Newbury Street, Ground Floor
Portland, ME 04101

ROBERT KLINE Esq L)e~e116uJ1i ~
KLINE LAW OFFICES LLC
PO BOX 7859
PORTLAND ME 04112-7859

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10811437. Public record. Not legal advice.