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Shafran v. Cook

Superior Court of Maine, Cumberland

November 10, 2014



Nancy Mills, Justice, Superior Court.

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. ¶ 7.) She alleges that after the complaint, Dr. Cook issued unfounded and retaliatory disciplinary warnings against plaintiff and discharged her from employment. (Compl. ¶¶ 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. ¶¶ 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. ¶¶ 21, 23, 25.)

On May 1, 2014, plaintiff filed this lawsuit. She alleges the following: count I: Violation of the Maine Whistleblower'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.


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. ¶ 2.) Plaintiff Dorothy Shafran worked as a hygienist for defendant from July 2008 to October 18, 2011. (Compl. ¶ 3.)

In late 2010, plaintiff became concerned about infection control lapses in defendant's office. (Compl. ¶¶ 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. ¶¶ 6-7.) In response to plaintiff's complaint, OSHA inspectors conducted an inspection of defendant's office on October 4, 2011. (Compl. ¶ 8.)

During the OSHA inspection, defendant told the OSHA inspectors that she knew who filed the complaint and would fire those individuals. (Compl. ¶ 9.) The OSHA inspectors advised defendant that firing an employee for making an OSHA complaint would violate OSHA's whistleblower protections. (Compl. 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. ¶ 10.) After the inspectors left, defendant immediately made statements that she suspected plaintiff was involved in filing the OSHA complaint. (Compl. ¶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. ¶ 13.) As a result of defendant's retaliatory actions, the U.S. Department of Labor filed a complaint against defendant. (Compl. ¶ 14.) Defendant entered a consent agreement with the Department of Labor on February 4, 2013. (Compl. ¶ 15.)

After plaintiff was fired, she sought unemployment compensation. (Compl. ¶ 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. ¶ 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. ¶ 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. ¶ 19.) On June 5, 2012, the Board voted to dismiss the complaint and found "no violation of the Dental Practice Act." (Compl. ¶ 20.)



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, ¶ 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. ¶ 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.


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, ¶ 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, ¶ 2, 977 A.2d 391 (quoting Saunders, 2006 ME 94, ¶ 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 entitled to no relief under any set of ...

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