2013 | Cited 0 times | D. Maine | September 30, 2013



Docket no. 1:12-cv-0265-NT

OPINION AND ORDER ON MOTIONS TO DISMISS This case comes before the Court on three motions to dismiss. The first, by Defendant Danette McGowan, seeks dismissal of Count V of the Second Amended Complaint, (intentional interference with economic relationships) pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for which relief may be granted (ECF No. 30). The second, by Defendants Paula Turner, Theresa Blanchard, 1

Karen Charpentier, Jayne Libbey, and Mary Newman also seeks to dismiss Count V pursuant to Federal Rules of Civil Procedure 12(b)(6) for failure to state a claim and 12(b)(1) for lack of subject-matter jurisdiction (ECF No. 31). Finally, Defendant Kathleen A. Patin seeks dismissal of Count IV of the Second Amended Complaint (intentional infliction of emotional distress), under Federal Rule of Civil Procedure 12(b)(6) on the ground that it fails to state a claim for which relief may be granted (ECF No. 33). For the reasons discussed below, the motions are GRANTED. 1 The Complaint was filed against Counsel for Ms. Blanchard notes that Ms. Blanchard was . Turner, Blanchard, Charpentier, Libbey, and Newman s Mot. to Dismiss 1.

ALLEGATIONS OF THE COMPLAINT The Court hereafter summarizes the facts as alleged in the Second Amended

On November 15, 2012, the Plaintiff filed a Second Amended Complaint in this case Complaint , which tells a tale of workplace bullying in Grant 7, the obstetrics and gynecology ward at Eastern Maine Medical Center (the Hospital by Defendants Charpentier, Libbey, McGowan, Newman, Turner and Blanchard

Nursing Defendants worked at the Hospital).

The Complaint alleges that on May 5, 2011, the Plaintiff quit her job as a registered nurse at the Hospital after twenty-five years of employment. The Plaintiff over two years earlier, in February of 2009, when she experienced a hypertensive crisis while at work, followed by an injury to her right knee. Together, these conditions caused the Plaintiff to be placed on light duty. The Plaintiff alleges that Defendant Turner maliciously assigned her tasks which exceeded her light duty restrictions.

Thereafter some of the other Nursing Defendants began to refer to the Plaintiff in offensive terms. In one incident that took place on or about July 20, 2009, Defendant Patin allegedly sent an anonymous note to the Plaintiff stating: Defendants Newman and Libbey are alleged to have been seen talking to Defendant Patin within a few days before the note was sent to the Plaintiff.

The Plaintiff asserts that this behavior was intended to provoke another hypertensive crisis and to cause the Plaintiff to leave work, which it did. Defendant Libbey, who is alleged to have been one of the authors of the note along with Defendant Patin, is also alleged to have mocked the Plaintiff upon her return to work The Plaintiff reported this incident to take action, and thereafter the Nursing Defendants increased their hostile actions

against the Plaintiff.

Defendant Newman is alleged to have made unwelcome comments about the at some point in time. The Plaintiff alleges that in December of 2009, Defendant Charpentier informed Defendant Libbey and other nurses that referring to the Plaintiff who was standing nearby. Defendant Libbey is alleged to have nodded in agreement.

Defendant McGowan was the supervising nurse on Grant 7. On January 7, 2010, Defendant McGowan is alleged to have told the Plaintiff in a rude and intimidating tone that the Plaintiff would not be placed as a charge nurse on the floor because Defendants Charpentier, Libbey, and Newman opposed this placement and because Defendant McGowan herself supported their opposition. Following this incident, the Plaintiff took another medical leave of absence to

address a severe hypertensive reaction to workplace stress. On January 14, 2010, Defendant McGowan confronted the Plaintiff, angrily telling her that the Plaintiff was responsible for a meeting that Defendant McGowan was required to attend involv esources department and union officials.

This precipitated a period in which the Nursing Defendants began making purportedly false accusations against the Plaintiff that other nurses were complaining about her. Yet another promised opportunity to serve as a charge nurse was revoked by Defendant McGowan after McGowan made a false allegation that a coworker had raised issues involving the Plaintiff. The Plaintiff claims that Defendants Blanchard and Turner repeatedly bad-mouthed the Plaintiff at the nursing station on Grant 7 in the presence of other staff and that Defendant Blanchard at one point confronted the Plaintiff and then refused to help the Plaintiff with patients. Defendants Turner, Charpentier, and Newman are also accused of having refused to assist the Plaintiff with patients.

In July of 2010, Defendant Blanchard circulated a petition signed by Defendants Charpentier, Newman, professionalism. Plaintiff alleges that Defendant McGowan knew and permitted the

petition to be circulated. On July 28, 2010, the Plaintiff requested to meet with the epartment.

On August 6, 2010, Defendant McGowan is alleged to have written up the Plaintiff on false charges and to have berated the Plaintiff in the presence of other

employees. The Plaintiff complained to the Hospital about this treatment, and was forced to again use medical leave in the winter and spring of 2011 to address an -traumatic stress disorder.

In the ultimate episode leading to the Plaintiff quitting, on or about April 15, 2011, the Plaintiff informed Defendant Turner that she was sick, that she felt like she may pass out, that she had blurry vision and could not read. Rather than provide medical attention to the Plaintiff, Defendant Turner reported the Plaintiff for working while under the influence of narcotics. The Plaintiff alleges that she also told a non-Defendant nurse at the Hospital that she needed medical attention but that, despite the fact that her face was visibly swollen and she was slurring her speech, the Plaintiff was asked by Hospital employees to leave the Hospital. The Plaintiff left the Hospital, severely humiliated. She claims that, as a result of these collective actions, the Nursing Defendants achieved their goal of ischarge from her employment.

The first three counts of the Complaint allege disability discrimination (Count I), violation of the federal Family and Medical Leave Act (Count II), and violation of the federal Emergency Medical Treatment and Active Labor Act (Count III) against the Hospital. Count IV alleges intentional infliction of emotional distress against Defendant Patin, and Count V alleges intentional interference with

economic relationships against Defendants Charpentier, Libbey, McGowan, Newman, Turner, and Blanchard. 2

LEGAL STANDARD Rule 8 of the Federal Rules of Civil Procedure requires that a complaint plain statement of the claim showing that the pleader is Fed. R. Civ. P. 8(a)(2) and 8(d)(1). The First Circuit recently observed:

To survive a motion to dismiss for failure to state a claim, a complaint Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 that is plausible on its fa Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The precise parameters of the Menard v. CSX Transp., Inc., 698 F.3d 40, 45 (1st Cir. 2012), but, at bottom, a complas non- draw the reasonable inference that the defendant is liable for the Iqbal, 556 U.S. at 663 - defendant-unlawfully-harmed- Id. at 678. Gianfrancesco v. Town of Wrentham, 712 F.3d 634, 638-39 (1st Cir. 2013) (alteration in original).

DISCUSSION A. Sufficiency of the Economic Relations (Count Five)

A claim for intentional interference with economic relations requires a plaintiff to demonstrate relationships through either intimidation or fraud and that this interference caused

2 Count V is the only count against Defendants McGowan, Turner, Blanchard, Charpentier, Libbey, and Newman, and Count IV is the only count against Defendant Patin.

the plaintiff damages. Petit v. Key Bank of Maine, 688 A.2d 427, 430 (Me. 1996); Barnes v. Zappia, 658 A.2d 1086, 1090 (Me.1995). The Complaint does not allege fraud. It does allege a situation in which the Defendants communicated to the Plaintiff through words and actions that she would be ostracized and belittled, that her job would be obstructed, and that the Defendants would withhold aid from the Plaintiff unless or until she quit her job, which, eventually, she did. This states a claim for intimidation against the Plaintiff. But the Nursing Defendants claim that Count V fails to state a claim because it does not allege that they intimidated a third party.

Under the well-marked boundaries for this tort in Maine, A person engages in intimidation when that person: (1) communicates a statement [or threat] to a third person; (2) that suggests adverse physical, economic, or emotional consequences to the third person; (3) for the purpose of inducing the third person to act [or fail to act] regarding the plaintiff; and (4) the third person acts based on the D. Alexander, Maine Jury Instruction Manual § 7-33 (4th ed. 2008) (brackets in original); see also Currie v. Indus. Sec., Inc., 915 A.2d 400, 408 (Me. 2007) (intimidation exists when defendant economic consequences for continuing its contract with plaintiff (citing Pombriant,

562 A.2d at 659). asked to recognize a claim of intentional interference with economic relations where the fraud or intimidation is

directed at the plaintiff herself, as opposed to a third party. The Plaintiff requests that this Court find that the Law Court will recognize this form of the tort.

Section 766A of the Restatement (Second) of Torts recognizes the tort of . Although Maine law generally follows the Restatement, see Sandler v. Calcagni, 565 F. Supp. 2d 184, 193 (D. Me. 2008), there is reason to tread lightly in the area of intentional interference with economic relations. Prosser and Keeton have noted:

[t]he courts have more or less continuously expanded the tort, with the effect, perhaps, that the uncertainties in its definition have become more rather than less significant. Although the tort continues to find supporters, it has been subjected to serious criticisms on a wide range of grounds from economics to justice to free speech, with a good deal of emphasis on the idea that an actor should not be held liable for interference with contract unless the interference is accomplished by unlawful means or an independent tort. All of this leaves open a good many questions about the basis of liability and defense, the types of contract or relationship to be protected, and the kind of interference that will be actionable, each of which requires no little attention before the beginning of an answer can be made. W. Prosser & W. Keeton, The Law of Torts, § 129 at 979 (5 th

ed. 1984) (footnotes omitted).

In a dissenting opinion in Pombriant v. Blue Cross/Blue Shield of Maine, 562 A.2d 656 (Me. 1989), then-Justice Hornby noted that the Law Court:

has wisely maintained the requirement of intimidation or fraud as a necessary element in an action for tortious interference with a contractual relationship . . . rather than adopt the open-ended definition of other courts and the Restatement (Second) of Torts § 767. Id., 562 A.2d at 661 (internal citations omitted).

This Court has also previously recognized that he law of other states that have adopted similar definitions of this tort requires that the conduct be directed toward third parties. White v. Meador, 215 F. Supp. 2d 215, 219 (D. Me. 2002) (citing, e.g., Zakutansky v. Bionetics Corp., 806 F. Supp. 1362, 1366 (N.D. Ill. 1992) (Illinois law)).

Finally, the Court must contend with the prudential concern that, generally speaking, it should not be engaged in the practice of expanding Maine law. See, e.g., Braga v. Genlyte Grp., Inc., 420 F.3d 35, 42 (1st Cir. 2005) -marked

boundaries in an area . . . (quoting Markham v. Fay, 74 F.3d 1347, 1356 (1 st

Cir. 1996)). The Plaintiff brought her claims in the first instance before this Court rather than before the Maine Superior Court. Under the circumstances, See Phoung Luc v. Wyndham Mgmt. Corp., 496 F.3d 85, 89

(1st Cir. 2007) (quoting Ryan v. Royal Ins. Co. of Am., 916 F.2d 731, 744 (1st Cir.1990)).

For these reasons, the Court declines to recognize a claim under Maine law for tortious interference with economic relations where the tortious conduct is directed at the plaintiff as opposed to a third party. Accordingly, the Plaintiff fails to state a claim under Count V for which relief may be granted. 3

3 Since the Plaintiff fails to state a claim under Count V, the Court does not reach the Nursing Compensation Act, 39-A M.R.S. §§101-909, by the Labor Management Relations Act of 1947, 29 U.S.C. §§ 141-187, and/or by the National Labor Relations Act, 29 U.S.C. §§ 151-169.

B. Intentional Infliction of Emotional Distress

To state a claim for intentional infliction of emotional distress, a plaintiff must allege the following four elements:

(1) the defendant intentionally or recklessly inflicted severe

emotional distress or was certain or substantially certain that such distress would result from her conduct; (2) possible bounds of decency and must be regarded as atrocious,

(3) the actions of the s emotional

distress; and (4) no reasonable [perso

Curtis v. Porter, 784 A.2d 18, 22-23 (Me. 2001) (alteration in original) (quoting Loe v. Town of Thomaston, 600 A.2d 1090, 1093 (Me. 1991)).

The First Circuit has observed that: matter of law, whether undisputed (or assumed) facts suffice to state a claim for intentional infliction of emotional distress. See Gray v. State, 624 A.2d 479, 484 (Me. 1993). If those facts would not allow a rational or if any other element of the tort is lacking, then dismissal is proper.

LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 511 (1 st

Cir. 1998), see also Lougee Conservancy v. CitiMortgage, Inc., 48 A.3d 774, 784 (Me. 2012) (court decides so extreme and outrageous to allow recovery).

Although the Complaint alleges conduct on the part of the individual Defendants that, taken together, would state a claim for intentional infliction of emotional distress, Count IV alleges intentional infliction of emotional distress against only one defendant, a former employee of the Hospital, Kathleen Patin.

WCA this claim against the Nursing Defendants. See Cole v. Chandler, 752 A.2d 1189,

1195-96 (Me. 2000) (holding that 39- provision, bars claims against co-employees for personal injuries, including mental

distress, even where the alleged tort was intentional).

Patin is alleged to have been seen speaking with Defendants Newman and Libbey a few days prior to the arrival of the note in July of 2009. Second Am. Compl. ¶ the content of the letter and devised a scheme to send the letter anonymously as

. Compl. ¶ 30. The note stated: . Compl. ¶ 27.

The Complaint also alleges that in contrast to the Nursing Defendants, Defendant Patin was a secretary who the Hospital. Second Am. Compl. ¶ 13. The Court infers from the allegations of the Complaint that Defendant P worker at the time the note was sent or at any time thereafter. See Second Am. Compl. ¶12. The Plantiff does not allege that Defendant Patin was involved in any of the other incidents which occurred after the note, or that Defendant Patin knew that the Plaintiff suffered from hypertension and had experienced a hypertensive crisis. See Second Am. Compl. ¶ 21.

Based on the allegations, which the Court must accept as true, Defendant Patin wrote an offensive note with the assistance of Defendant Libbey and sent it to the Plaintiff. The Plaintiff concedes in her opposition to Defendant P , she

when others take the tortious conduct to a more extreme level. Opp to Def. to Dismiss 7.

In support of this proposition, the Plaintiff points to Curtis, in which the Law Court found that the plaintiff, a pizza delivery person who was robbed and hit in the face, stated a claim for intentional infliction of emotional distress against a young woman, Lisa Gagne, who took part in the scheme by ordering the pizza, having it delivered to a vacant house, and telling the men who were to get the pizza . Curtis, 784 A.2d at 20-21.

Maine does generally recognize that: tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit, are Cohen v. Bowdoin, 288 A.2d 106, 111-112 (Me. 1972) (quoting W. Prosser, The Law of Torts, at 259 (3rd ed. 1964)). Id. In Curtis, Gagne knew that the plan was to rob the plaintiff, and,

although she did not know that the plaintiff would be punched in the face, the Law

. . . may result in serious emotional harm to that delivery perso Curtis, 784 A.2d at 23. The facts of Curtis are a long way from the facts alleged here. Defendant Patin may be the author of a nasty note, but the allegations do not raise a plausible inference that she is part of the which extended some twenty months after Defendant Patin sent the note. Particularly where Defendant Patin and Plaintiff were not coworkers and where Defendant Patin is not alleged to share the knowledge that the Nursing Defendants had of the severe hypertension, the Court is unwilling to impose liability for the subsequent actions of the Nursing Defendants on Defendant Patin. Cf. Curtis, 784 A.2d at 23. 4

Under Maine law, mere abusive language and insults do not constitute the type of outrageous and extreme conduct necessary to support a claim of intentional infliction of emotional distress. Botka v. S.C. Noyes & Co., 834 A.2d 947, 951 (Me. 2003) (commercial landlord and b behavior, including initiation of a physical confrontation and threats to evict,

insufficient to sustain claim for intentional infliction of emotional distress); Pylypenko v. Bennett, No. CV-09-690, 2011 WL 1338088 (Me. Super. Feb. 23, 2011)

4 Paragraph 35 of the Complaint alleges that after the Plaintiff reported the note to the Hospital increased their of the Complaint alleges that after she had other Defendants began making false accusations that other nurses were complaining about To the extent these allegations are meant to include Defendant Patin, they fail to include sufficient non-conclusory factual content to allow the Court to infer that Defendant Patin is liable for the conduct alleged. See Iqbal, 556 U.S. at 663. The allegations regarding increased hostile actions and false accusations all concern conduct by defendants other than Defendant Patin. Since Defendant Patin during the relevant period, it would be implausible to infer absent other factual underpinning that she was involved in the alleged increased hostile actions and false accusations against the Plaintiff.

Sending a note expressing a mean opinion is simply not so outrageous and extreme as to support a claim for intentional infliction of emotional distress. The Court might have been able to infer that Defendant Patin was involved in a broader scheme had she been a coworker of the Plaintiff or had she continued her involvement with the Nursing Defendants. But Defendant Patin is absent from the scene after the initial note was sent. Furthermore, there is no allegation which allows the Court to infer that Defendant Patin intended the Plaintiff to suffer a hypertensive crisis or that she could have foreseen such an event. Nor is the mailing of a mean note enough to put a person on notice that serious emotional harm might Defendant Patin is not supportable on the allegations of the Complaint.

CONCLUSION For the reasons stated, the motions of Defendants McGowan, Turner, Blanchard, Charpentier, Libbey, and Newman to dismiss Count V are GRANTED, and also GRANTED. SO ORDERED.

/s/ Nancy Torresen United States District Judge Dated this 30th day of September, 2013.

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