October 6, 2014
MAUREEN GOFF, Plaintiff
OLYMPIA SPORTS, Defendant
ORDER ON MOTION TO DISMISS
Hon. Mary Gay Kennedy, Superior Court Justice.
Defendant Olympia Sports has moved to dismiss Plaintiff Maureen Goff's Complaint for improper venue and to dismiss Count III of the Complaint for failure to state a claim upon which relief can be granted pursuant to Maine Rules of Civil Procedure 12(b)(3) and (6), This court held a non-testimonial hearing on the Defendant's Motion. The Plaintiff has opposed the Defendant's Motion.
The Plaintiff's Complaint contains three counts: Count I is for Maine Human Rights Act age discrimination; Count II is for Maine Human Rights Act retaliation; and Count III is a whistleblower claim. The Plaintiff is seeking declaratory and injunctive relief, as well as monetary damages. Her claims are based upon alleged violations of the Maine Human Rights Act (" MHRA"), 5 M.R.S.A. § 4551 et seq ., and the Whistleblowers' Protection Act (" WPA"), 26 M.R.S.A. § 831 et seq .
I. Factual and procedural background
Ms. Goff is a resident of New Gloucester, Maine. (Compl. ¶ 1.) New Gloucester is in Cumberland County. Olympia Sports is a Maine corporation. (Compl. ¶ 2.) According to the Defendant, Olympia Sports' principal place of business is in Westbrook, which is in Cumberland County. Olympia Sports also has over 200 stores in the Northeast and Mid-Atlantic, including a place of business in Auburn, Maine. (Compl. ¶ ¶ 2, 5.) The Defendant has alleged that Ms. Goff was employed at Olympia Sports in Westbrook.
Ms. Goff began working for Olympia Sports in February of 1994. (Compl. ¶ 12.) In November of 2009, Dick Coffey asked Ms. Goff when she was planning on retiring in advance of her performance evaluation. (Compl. ¶ 14.) At the time, Ms. Goff was 61 and stated that she did not want to retire and could not retire for financial reasons. (Compl. ¶ 14.) Subsequently, in February of 2011, Mr. Coffey, Olympia Sports' then president, and Ms. Goff's supervisor at the time, announced to Ms. Goff that he was planning on retiring and that Eddie Manganello would be the new president. (Compl. ¶ 15.) He informed Ms. Goff that he had looked into her age and realized that she turned 63 the following December. (Compl. ¶ 15.) He again asked her when she planned on retiring, and she reiterated that she could not afford to retire. (Compl. ¶ 15.) Mr. Coffey informed Ms. Goff that she could remain until he retired in October of 2011. (Compl. ¶ 15.)
In February of 2011 a field position became available. (Compl. ¶ 16.) While Ms. Goff had held the job in the past, it was offered to an allegedly less qualified man in his thirties. (Compl. ¶ 16.) On March 18, 2011, Mr. Coffey informed Ms. Goff that she would need to determine when she was planning on retiring, and that in August she would no longer be permitted to attend staff meetings, since they would be run by Mr. Manganello. (Compl. ¶ 17.)
On March 22, 2011 around 9 a.m., Mr. Coffey announced that a group of three men in their thirties and forties were the future of the company, and he omitted the CFO, who was in his 50s. (Compl. ¶ 18.) Mr. Coffey also asked Ms. Goff what she had decided, and she replied that she wished to continue working and retirement was not economically feasible for her. (Compl. ¶ 19.) Mr. Coffey again stated that she could work until October, and Ms. Goff informed him that what the company was doing was not legal. (Compl. ¶ 19.) Later that afternoon, around 4:30 p.m., Mr. Coffey asked if she was prepared to talk. (Compl ¶ 20.) She responded that she needed to talk to her husband at home, rather than over the phone. (Compl. ¶ 20.) Mr. Coffey was " upset and stomped away." (Compl. ¶ 20.)
The next day, March 23, 2011, Ms. Goff was fired, and she was told that she had two days to make a determination regarding a severance package. (Compl. ¶ 21.) Plaintiff claims that changing her separation date from the company was retaliatory and pretextual. (Compl ¶ 24.)
On December 8, 2011, Ms. Goff filed a discrimination complaint with the Maine Human Rights Commission (" MHRC"). (Compl. ¶ 7.) Olympia Sports' President stated in a hearing with the MHRC investigator that March 23rd was Ms. Goff's last day, because Ms. Goff had stated that what the company was doing was illegal. (Compl. ¶ 27.)
On December 27, 2013, the MHRC issued a letter permitting Goff to pursue her action in court. (Compl. ¶ 8.)
II. Standard of review
When considering a motion to dismiss under Rule 12(b)(6) the Law Court has held that:
'[w]e view the material allegation of the complaint as admitted and examine the complaint in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory. A dismissal is appropriate only when it appears beyond doubt that a plaintiff is entitled to no relief under any set of facts that he might prove in support of his claim. The legal sufficiency of a complaint is a question of law.'
Thompson v. Dep't of Inland Fisheries & Wildlife , 2002 ME 78, ¶ 4, 796 A.2d 674 (quoting New Orleans Tanker Corp. v. Dep't of Transp ., 1999 ME 67, ¶ 3, 728 A.2d 673).
The complaint is intended to give the defendant notice of the claims that the opposing party will bring. Claims for relief must " contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief which the pleader seeks." M.R. Civ. P. 8(a). The rules require that " [e]ach averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required." M.R. Civ. P. 8(e)(1).
The Supreme Court has held, however, that a complaint must provide " more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . Factual allegations must be enough to raise a right to relief above the speculative level. . . Bell A. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (citations omitted).
Defendant cites to 14 M.R.S. § 501 (2014), which applies to personal and transitory actions, and provides in part:
Personal and transitory actions, except process of foreign attachment and except as provided in this chapter, shall be brought, when the parties live in the State, in the county where any plaintiff or defendant lives; . . . or in either case any such action may be brought in the county where the cause of action took place. Improper venue may be raised by the defendant by motion or by answer, and if it is established that the action was brought in the wrong county, it shall be dismissed and the defendant allowed double costs.
Defendant argues that pursuant to the statute there are only three options for venue, which would be: the county where the plaintiff lives, the county where the defendant lives, or the county where the cause of action developed. The Defendant is correct that those would be the three options if the Defendant were a person. Defendant, however, is a corporation.
Section 505 of the statute, which pertains to local and transitory actions where counties, towns and other corporations are parties provides that " [a]ll other corporations may sue and be sued in the county in which they have an established place of business or in which the plaintiff or defendant, if a natural person, lives." 14 M.R.S. § 505. The court is unclear why Olympia Sports believes that section 505 does not apply to it, when the title of the section refers specifically to corporations.
" Where a corporation is a party, the action may be brought wherever the corporation has an established place of business or where the other party, if a natural person, lives." 2 Harvey, Maine Civil Practice , 66 (3d ed. 2011). Since Olympia Sports has a place of business in Auburn, it is entirely appropriate for the Plaintiff to bring her action in Androscoggin County.
Pursuant to 14 M.R.S. § 508, the court has the power to transfer this case to another county, " in the interest of justice and to secure the speedy trial of an action, or for other good cause . . . . " 14 M.R.S. § 508. The court is, however, un-persuaded by a forum non-conveniens argument. Androscoggin County is adjacent to Cumberland County. There is no real hardship involved in traveling to Auburn for trial.
Defendant argues that Count III of Plaintiff's Complaint should be dismissed, because the Defendant alleges that Plaintiff's complaint with the MHRC failed to include a claim for violation of the WPA and Plaintiff therefore failed to exhaust her administrative remedies. Defendant also argues, based on its assertion that the WPA claim was not filed with the MHRC, that Plaintiff's claim should be dismissed because it is time-barred on statute of limitations grounds. See 5 M.R.S.A. § 4611 (requiring that " a complaint must be filed with the commission not more than 300 days after the alleged act of unlawful discrimination.")
Pursuant to 5 M.R.S.A. § 4622, a plaintiff's remedies are severely limited if the plaintiff has not filed a complaint with the commission and the commission has not taken certain actions enumerated in the statute. Under § 4622, such a plaintiff cannot recover attorney's fees, civil penal damages, compensatory damages, or punitive damages.
To support its argument that Plaintiff failed to include a WPA charge in her MHRC complaint, the Defendant has appended a copy of the MHRC's Investigator's Report to its Motion to Dismiss. Rule 12(b) provides that if on a 12(b)(6) motion, " matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment. . . ." M.R. Civ. P. 12(b). The Law Court has provided, however, that " official public documents, documents that are central to the plaintiff's claim, and documents referred to in the complaint may be properly considered on a motion to dismiss without converting the motion to one for a summary judgment when the authenticity of such documents is not challenged." Moody v. State Liquor & Lottery Comm'n , 2004 ME 20, ¶ 11, 843 A.2d 43.
The Plaintiff has objected to the Investigator's Report as hearsay not subject to the public record's hearsay exception, M.R. Evid. 803(8). Maine Rule of Evidence 803(8)(B)(iv) provides that " factual findings resulting from special investigation of a particular complaint, case, or incident" are not within the public records and reports exception to the hearsay rule. In Tiemann v. Santarelli Enterprises, Inc ., the court held that an MHRC investigative report, which was " prepared directly in response to the plaintiff's 'particular complaint, '" was not admissible hearsay pursuant to M.R. Evid. 803(8). 486 A.2d 126, 131 (Me. 1984). Based upon M.R. Evid. 803(8)(B), and the Law Court's pronouncement in Tiemann , the court agrees with the Plaintiff that the Investigator's Report is inadmissible hearsay, which cannot be considered by the court.
In her Complaint, Plaintiff stated that she timely filed a claim with the MHRC. Plaintiff has also alleged in her Complaint, that she exhausted her administrative remedies. For the purposes of this Motion, those allegations are taken as admitted. See Thompson , 2002 ME 78, ¶ 4, 796 A.2d 674. It is clear from Defendant's Motion that whether or not Plaintiff properly articulated a WPA claim with the MHRC and whether she exhausted her administrative remedies will need to be addressed in this action. At this early stage of the litigation, however, and with the scant information that has been provided, the court cannot grant Defendant's Motion to Dismiss.
Accordingly, the court orders that the Defendant's Motion to Dismiss is DENIED.
The Clerk is directed to incorporate this Order into the docket by reference pursuant to Maine Rule of Civil Procedure 79(a).