United States District Court, D. Maine
RECOMMENDED DECISION ON STATE DEFENDANTS' MOTION
H. Rich III United States Magistrate Judge.
employment discrimination action, the State of Maine, Office
of the Attorney General (“AG's Office” or
“State”), and District Attorney Geoffrey Rushlau
(together, the “State Defendants”) move to
dismiss all of plaintiff Chastity Krah's claims against
them pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to allege the exhaustion of administrative remedies
with respect to the AG's Office and failure to state a
claim against Rushlau for violation of the plaintiff's
constitutional rights. See Motion To Dismiss of
Defendants State of Maine, Office of the Attorney General,
and Geoffrey Rushlau (“Motion”) (ECF No. 21) at
1; First Amended Complaint (“FAC”) (ECF No. 16)
¶¶ 39-53. For the reasons that follow, I recommend
that the court grant the Motion in part, as to all claims
against Rushlau, and otherwise deny it.
Applicable Legal Standards
Supreme Court has stated:
While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the grounds of his
entitlement to relief requires 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
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (citations and internal punctuation omitted). This
standard requires the pleading of “only enough facts to
state a claim to relief that is plausible on its face.”
Id. at 570. “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
ruling on a motion to dismiss under Rule 12(b)(6), a court
assumes the truth of all of the well-pleaded facts in the
complaint and draws all reasonable inferences in favor of the
plaintiff. Román-Oliveras v. Puerto Rico Elec.
Power Auth., 655 F.3d 43, 45 (1st Cir. 2011).
Ordinarily, in weighing a Rule 12(b)(6) motion, “a
court may not consider any documents that are outside of the
complaint, or not expressly incorporated therein, unless the
motion is converted into one for summary judgment.”
Alternative Energy, Inc. v. St. Paul Fire & Marine
Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001). “There
is, however, a narrow exception for documents the
authenticity of which are not disputed by the parties; for
official public records; for documents central to
plaintiffs' claim; or for documents sufficiently referred
to in the complaint.” Id. (citation and
internal quotation marks omitted).
Plaintiff's Proffered Extra-Pleading Materials
plaintiff has appended nine exhibits to her opposing brief,
see Exhs. 1-9 (ECF Nos. 30-1 to 30-9) to
Plaintiff's Opposition to Motion To Dismiss Filed by
Defendants State of Maine and Geoffrey Rushlau
(“Opposition”) (ECF No. 30), only one of which
the State Defendants appear to agree is properly considered
in connection with this Motion: a copy of the March 23, 2015,
Charge of Discrimination (“March 2015 Charge”)
that the plaintiff filed with the Maine Human Rights
Commission (“MHRC”) against the County of
Lincoln, Maine, see Reply Memorandum in Support of
Motion To Dismiss of Defendants State of Maine, Office of the
Attorney General, and Geoffrey Rushlau (“Reply”)
(ECF No. 32) at 3 n.1; March 2015 Charge, Exh. 1 (ECF No.
30-1) to Opposition.
State Defendants note that, in connection with a Rule
12(b)(6) motion to dismiss in an employment discrimination
case, Chatman v. Gentle Dental Ctr. of Waltham, 973
F.Supp. 228 (D. Mass. 1997), the court declined to consider
facts pertaining to exhaustion of remedies that were alleged
in the plaintiff's brief and in “papers
accompanying the brief[.]” Reply at 3 (quoting
Chatman, 973 F.Supp. at 236). They argue that the
plaintiff's extra-pleading materials should meet the same
fate. See id.
Chatman sheds little light on the documents here at
issue. Facts contained only in a party's brief by
definition do not fall within the “narrow
exception” described by the First Circuit,
Alternative Energy, 267 F.3d at 33, and the
Chatman court did not describe the nature of the
“papers” accompanying the brief apart from the
plaintiff's charge of discrimination, which the court
did take into account on the basis that it was
“a public record and is also referred to in the
complaint[, ]” Chatman, 973 F.Supp. at 231
accordance with the Alternative Energy test, I
determine that four exhibits besides Exhibit 1, which
contains the March 2015 Charge, should be taken into account.
The following exhibits are sufficiently referenced in the
FAC, and their authenticity is not in dispute, see
Alternative Energy, 267 F.3d at 33 (“When the
complaint relies upon a document, whose authenticity is not
challenged, such a document ‘merges into the
pleadings' and the court may properly consider it under a
Rule 12(b)(6) motion to dismiss.”):
1. Exhibit 6, a copy of a December 23, 2015, charge of
discrimination that the plaintiff filed with the MHRC against
the State of Maine (“December 2015 Charge”),
see Exh. 6 (ECF No. 30-6) to Opposition, which,
together with Exhibits 7 and 8, is referenced in FAC ¶
2. Exhibit 7, a copy of a letter dated December 23, 2015,
from [plaintiff's counsel] James A. Clifford to Amy
Sneirson, Esq., Executive Director of the MHRC
(“Clifford Letter”), addressing the State's
anticipated statute of limitations defense with respect to
the December 2015 Charge, see Exh. 7 (ECF No. 30-7)
to Opposition, which, together with Exhibits 6 and 8, is
referenced in FAC ¶ 38;
3. Exhibit 8, a copy of a letter dated March 4, 2016, from
Sneirson to Susan Herman, Deputy Attorney General, Linda
McGill, Esq., and Clifford (“Sneirson Letter”),
stating that the MHRC would treat the December 2015 Charge as
an amendment to the existing complaint and would not dismiss
it as untimely at that point, see Exh. 8 (ECF No.
30-8) to Opposition, which, together with Exhibits 6 and 7,
is referenced in FAC ¶ 38; and
4. Exhibit 9, containing copies of two letters dated March
28, 2016, from Sneirson to the plaintiff, the first of which
is a Notice of Right To Sue (“Right-To-Sue
Letter”), see Exh. 9 (ECF No. 30-9) to
Opposition, referenced in FAC ¶ 9.
remaining exhibits are neither referenced in the FAC, central
to the plaintiff's claim, nor characterized by either
side as official public records. Hence, they have not been
sets forth the following relevant factual
plaintiff was employed as a Victim Witness Advocate by
Lincoln County between April 2008 and December 5, 2014. FAC
¶ 2. The AG's Office is a department of state
government and employed defendants Rushlau and Andrew Wright.
Id. ¶¶ 5, 7. Rushlau serves as the
District Attorney for Prosecutorial District Number 6,
comprising the counties of Knox, Lincoln, Sagadahoc, and
Waldo. Id. ¶ 6. He is an employee of the State
of Maine (“State”) and serves under the general
authority of 30-A M.R.S.A. § 256. Id. Wright
served as an Assistant District Attorney between 2005 and
July 2015. Id. ¶ 7. Until his separation from
employment in July 2015, he was an employee of the State and
served under the general authority of 30-A M.R.S.A. §
the plaintiff was employed by Lincoln County, she was at all
material times working under the direction, supervision, and
control of Rushlau and Wright. Id. ¶ 13. Wright
supervised the plaintiff at the District Attorney's
Office (“DA's Office”) in Wiscasset, Maine.
Id. ¶¶ 12-13.
2012 and early 2013, the plaintiff had a brief relationship
with an attorney from the Mid-Coast area. Id. ¶
14. The plaintiff and this attorney were not involved in
cases together. Id. During this time, people in the
DA's Office, including Wright, knew that the plaintiff
was “seeing” this attorney. Id. At no
point did the County Administrator's Office or the
DA's Office question or object to the relationship.
began teasing the plaintiff about the relationship and made
inappropriate comments around her co-workers. Id.
¶ 15. He texted the plaintiff while she was working and
asked her if she was sleeping with that person. Id.
The plaintiff refused to answer and asked him to stop.
Id. Prior to the time the plaintiff's
relationship with the attorney ended, Wright began making
unwelcome sexual advances toward her and directed
inappropriate sexually charged comments at her. Id.
¶ 16. Wright became ill in the fall of 2013 and stopped
contacting the plaintiff, but resumed making sexually
inappropriate comments to her when he recovered in the spring
of 2014. Id. ¶ 17.
spring of 2014, Wright pressured the plaintiff to engage in
sexual acts with him in the workplace. Id.
¶¶ 18-22. The plaintiff believed that there was no
one at the office in whom she could confide or felt she could
trust. Id. ¶ 21. She felt humiliated and
degraded and deeply regretted the sexual encounters with
Wright. Id. She pleaded with Wright many times to
stop, repeatedly asked him to leave her alone, and told him
she had no interest in a romantic relationship. Id.
¶ 22. By the early summer of 2014, Wright relented after
the plaintiff continued to ignore him. Id. ¶
24. However, the plaintiff quickly noticed that he was
treating her differently, and she felt uncomfortable because
she perceived him to be quite angry with her. Id.
the plaintiff's colleagues informed her that Wright had
told her that the plaintiff was a liar and wrote other
hurtful things about her in text messages to that colleague.
Id. The colleague also told the plaintiff that
Wright had repeated things ...