United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION TO DISMISS
JOHN A. WOODCOCK, Jr., District Judge.
Kimberly Adkins was employed by Atria Senior Living (Atria) from April 2011 until she was terminated in March 2012. In this action, Ms. Adkins asserts gender discrimination in violation of the Maine Human Rights Act and Title VII of the Civil Rights Act of 1964, retaliation in violation of the Maine Human Rights Act and Title VII of the Civil Rights Act of 1964, and slander per se. Before the Court is Atria's Motion to Dismiss. After dismissing those counts Ms. Adkins concedes must be dismissed, the Court grants in part and denies in part Atria's motion.
A. Procedural History
On April 30, 2014, Kimberly Adkins filed a Complaint in this Court, containing two counts: (1) sex-based discrimination under the Maine Human Rights Act (MHRA), and (2) retaliation under the Maine Human Rights Act. Pl.'s Compl. for Hostile Work Environment and Retaliation (ECF No. 1). On June 23, 2014, Ms. Adkins filed an Amended Complaint, containing five counts, including the two original counts and adding (3) discrimination under Title VII of the Civil Rights Act of 1964 (Title VII), (4) retaliation under Title VII, and (5) per se slander. Pl.'s Am. Compl. for Discrimination and Retaliation (ECF No. 4). On July 11, 2014, Ms. Adkins filed a Second Amended Complaint. Pl.'s Second Am. Compl. for Discrimination and Retaliation (ECF No. 7) ( Am. Compl. ).
On September 30, 2014, Atria Senior Living, Inc. filed a motion to dismiss. Mot. of Def. Atria Senior Living, Inc. to Dismiss Pl.'s Second Am. Compl. (ECF No. 13) ( Def.'s Mot. ). Ms. Adkins responded on October 21, 2014. Pl.'s Mem. of Law In Opp'n to Def.'s Mot. to Dismiss (ECF No. 14) ( Pl.'s Opp'n ). Atria replied on November 4, 2014. Def.'s Atria Senior Living Inc.'s Reply to Pl.'s Opp'n to Mot. to Dismiss Second Am. Compl. (ECF No. 15) ( Def.'s Reply ).
On April 28, 2015, having reviewed the parties' filings, the Court issued an Order requiring the parties to file supplemental memoranda on the statute of limitations issues and ordered oral argument. Order on Oral Argument (ECF No. 16). On June 1, 2015, Ms. Adkins filed her supplemental memorandum, Pl.'s Seriatim Briefing (ECF No. 18) ( Pl.'s Supp. Mem. ); on June 8, 2015, Atria responded. Def. Atria Senior Living, Inc.'s Seriatim Br. (ECF No. 19) ( Def.'s Supp. Mem. ).
On June 15, 2015, the Court held an oral argument in which both parties participated. Minute Entry (ECF No. 20). On June 19, 2015, Ms. Adkins filed a second supplemental memorandum. Pl.'s Supplemental Mem. of Law in Opp'n to Def.'s Mot. to Dismiss (ECF No. 21) ( Pl.'s Second Supp. Mem. ). On June 26, 2015, Atria filed its response. Def. Atria Senior Living, Inc.'s Resp. to Pl.'s Supplemental Mem. of Law in Opp'n to Def.'s Mot. to Dismiss (ECF No. 22) ( Def.'s Supp. Resp. ).
B. Dismissed Count
In her second supplemental memorandum, Ms. Adkins withdrew her opposition to Atria's motion to dismiss and conceded the dismissal of Count V, the slander per se claim. Pl.'s Second Supplemental Mem. at 2. In its supplemental response, Atria urged the Court to dismiss Count V. Def.'s Supp. Resp. at 2. As Ms. Adkins did not object to the dismissal of Count V, the Court dismisses that count.
II. THE ALLEGATIONS AND THEORIES OF ACTION IN THE COMPLAINT
A. The Factual Allegations
The Court accepts the following facts from the Second Amended Complaint as true for the purposes of this Order:
Beginning in April 2011, Ms. Adkins, a resident of Lebanon, Maine, was a director of culinary services at Atria, an out-of-state corporation that provides assisted living to seniors. Am. Compl. ¶¶ 2, 3, 7.
Ms. Adkins is a lesbian, which her supervisor Jan Peterson discovered a few months after Ms. Adkins stated working at Atria. Id. ¶¶ 8, 9. After Ms. Adkins discovered that coworkers were circulating rumors about her sexual orientation and that of another coworker of hers, she and the coworker informed Ms. Peterson of the rumors. Id. ¶¶ 11-12. Ms. Peterson said the situation would be addressed, but it was not. Id. ¶12. Ms. Adkins and the coworker were told not to have lunch together, were excluded from a team photograph, and were told that they could not stand next to each other in the holiday picture. Id. ¶¶ 13-15. Additionally, Ms. Peterson required more hours from Ms. Adkins and changed her role "from an administrative position to a more physically demanding role" despite knowing that Ms. Adkins had a bad ankle. Id. ¶¶ 16-17. Ms. Peterson told Ms. Adkins she could not schedule an assistant to help her with catering certain events, even though the former director of culinary services, a male, always had an assistant at such events. Id. ¶ 18.
Ms. Adkins also had issues with a male subordinate coworker. The coworker spoke of her sexual orientation in a derogatory manner, resisted her instructions, was "aggressive toward her", and called her at home while drunk. Id. ¶ 19. Ms. Peterson told Ms. Adkins that without witness statements "it was her word against his." Id. Ms. Adkins wrote a statement and gave it to Ms. Peterson to give to human resources. Id. Ms. Peterson initially did not submit the statement to HR and only did so when Ms. Adkins followed up and insisted. Id.
In November 2011, the same male coworker "aggressively yelled" at Ms. Adkins in front of other coworkers after she asked him to turn down the radio. Id. ¶ 20. He "began to yell and hit the pots and pans to make noise." Id. Ms. Adkins reported the incident to Ms. Peterson, who "did not want to hear about it" and told Ms. Adkins to submit another statement, which she did. Id. When Ms. Adkins submitted the statement supported by a witness statement, Ms. Peterson "became angry" with Ms. Adkins for requesting a statement from the witness. Id. Ms. Adkins reminded Ms. Peterson that she had told her that without a witness statement, nothing could be done about an incident; Ms. Peterson became more annoyed. Id.
Ms. Peterson also did not allow Ms. Adkins to reprimand the coworker, and told her she had to "play nice in the sandbox." Id. ¶ 21. When Ms. Adkins applied for an open position elsewhere in the company, Ms. Peterson told her she would not get the job and "might as well forget about it." Id. ¶ 22.
Throughout her employment at Atria, Ms. Adkins felt there was a lack of diversity awareness and training, which she believed "led to discriminatory animus by employees against people of color and gays and lesbians." Id. ¶ 23. She reported what she perceived to be discriminatory comments both to Ms. Peterson and to human resources. Id. ¶ 24. She also reported to Atria's national human resources specialist her belief that her manager was discriminating against her based on her sexual orientation, and voiced opposition to the discrimination she experienced and others' discriminatory animus toward non-Caucasians. Id. ¶ 26.
In November 2011, Ms. Adkins had a conference call with the regional and national human resources representatives regarding Ms. Peterson's comments about her job performance and her belief that she was being penalized for reporting her concerns about discrimination in the workplace and for being a lesbian. Id. ¶ 30. On December 8, 2011, she received a verbal reprimand regarding her job performance, and was asked to sign a new job description. Id. ¶ 31. In February 2012, Ms. Peterson gave Ms. Adkins two corrective actions and one warning. Id. ¶ 32. Ms. Adkins appealed these reprimands; Atria denied the appeals. Id. ¶ 33. In another report to human resources, Ms. Adkins objected to Ms. Peterson's characterization of her job performance. Id. ¶ 34. In January 2012, Ms. Adkins emailed human resources, explaining that she hoped things would work out, that she was appealing her writeup, and she was considering moving forward with filing the state charge. Id. ¶ 35.
On March 7, 2012, Ms. Adkins filed a complaint with the MHRC for discrimination on the basis of sexual orientation and retaliation. Id. ¶ 36. On March 8, 2012, Ms. Peterson met with Ms. Adkins to discuss her performance evaluation; she explained that she had low scores. Id. ¶ 37. Ms. Adkins told Ms. Peterson about the MHRC complaint. Id. On March 12, 2012, Atria terminated Ms. Adkins' employment.
B. The Counts
Ms. Adkins' Second Amended Complaint contains four counts. In Count One, Ms. Adkins alleges that "Defendant discriminated against Plaintiff based on her sexual orientation and gender by treating her differently" in violation of the MHRA. Id. ¶ 45. In Count Two, Ms. Adkins states that "[d]uring her employment, Plaintiff made complaints or opposed the discrimination against her and Non-Caucasians, " and that the Defendant retaliated against her after she complained, all in violation of the MHRA. Id. ¶¶ 49, 50. In Count Three, Ms. Adkins says that "Defendant discriminated against [her] based on her gender by treating her differently than male employees", in violation of Title VII. Id. ¶ 55. In Count Four, Ms. Adkins alleges that after she complained, Atria retaliated against her, in violation of Title VII. Id. ¶ 59.
III. THE PARTIES' POSITIONS
A. Atria's Motion to Dismiss
Atria's motion to dismiss is premised on its assertion that Ms. Adkins' Complaint is either untimely or insufficient to state a claim under both the MHRA and Title VII. Def.'s Reply at 1-10. Regarding Count One and Count Two, Atria argues that Ms. Adkins' claims were not timely filed and they should thus be dismissed. Id. at 2. It states that the MHRA requires Ms. Adkins to commence her action within the later of either (1) two years of the act of allegedly unlawful discrimination or (2) 90 days after any of the occurrences listed in 5 M.R.S. section 4622(A)-(D). Id. at 5 (citing 5 M.R.S. § 4613(2)(C)). Atria contends that Ms. Adkins filed her first Complaint more than two years after she was terminated, the date which Atria argues is the alleged act of unlawful discrimination. Id. Additionally, Atria contends that because Ms. Adkins filed her Complaint 92 days after the Maine Human Rights Commission (MHRC) issued its Statement of Finding and dismissed the proceeding, she has failed to satisfy the timeliness requirements of section 4613 and her MHRA claims of discrimination and retaliation must be dismissed. Id.
Turning to Count Three, Atria argues that to the extent Ms. Adkins is claiming that she was discriminated against because of her sexual orientation, Title VII does not prohibit such discrimination. Id. at 5-6. Next, it contends that once the allegations regarding sexual orientation discrimination are disregarded, Ms. Adkins' Complaint is "left with one conclusory statement" to support her Title VII discrimination claim; namely, that "Defendant discriminated against Plaintiff based on her gender by treating her differently than male employees." Id. at 6. This type of "[b]are, conclusory assertion" in a complaint, Atria continues, is "precisely the type of pleading that the Supreme Court found insufficient under [Federal Rule of Civil Procedure] 8(a)(2)." Id. Atria concludes that Count Three must likewise be dismissed. Id.
Regarding Count Four, Atria points to Ms. Atria's allegation that she complained to human resources that "she felt she was being penalized for reporting her concerns about discrimination in the workplace and for being a lesbian", and argues that it is insufficient to make a claim under Title VII because complaining about sexual orientation discrimination is not opposition to a practice that Title VII forbids. Id. at 7-8.
B. Kimberly Adkins' Response
In her response, Ms. Adkins asserts that she did not receive her "right to sue letter" from the Equal Opportunity Employment Commission (EEOC), informing her of their adoption of the MHRC's finding, until April 30, 2014. Pl.'s Opp'n at 2. She maintains that she "could not have filed the complaint without the right to sue letter from the EEOC" and argues that fairness demands that the "90 day limit should be tolled until Plaintiff had received a right to sue from both administrative agencies". Id. She maintains that her claims under Counts One and Two are timely and should not be dismissed. Id.
Regarding Count Three, Ms. Adkins maintains that she alleged additional facts that supported her Title VII claim under theories of sex stereotyping and disparate treatment. Id. at 3. She maintains that she was "reprimanded for not playing nice'" and "was also not allowed to reprimand a subordinate or follow the appropriate steps to have the subordinate disciplined" because she was a woman. Id. at 4. She also maintains that she provided sufficient evidence of disparate treatment by alleging that she successfully performed her job but was terminated from her position, and that male employees similarly ...