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Charette v. St John Valley Soil and Water Conservation District

United States District Court, D. Maine

June 20, 2017



          George Z. Singal United States District Judge

         Before the Court is the Motion to Dismiss filed by Defendant David Potter (ECF No. 11) and the Motion to Dismiss filed by Defendants St. John Valley Soil and Water Conservation District, the State of Maine Department of Agriculture, Conservation and Forestry, Duane Theriault, and Kurt Coulombe (ECF No. 12) (collectively, “Defendants' Motions to Dismiss”). The Court also has before it Plaintiff's Motion to Amend Complaint (ECF No. 19). After considering the parties' filings, and for the reasons explained below, the Court GRANTS Plaintiff's Motion to Amend and GRANTS IN PART AND DENIES IN PART Defendants' Motions to Dismiss.


         When a party has already amended its pleading once as a matter of course, [1] “a party may amend its pleading only with the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2). However, “[t]he court should freely give leave when justice so requires.” Id.

         In general,

In the absence of any apparent or declared reason- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be ‘freely given.' Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court . . . .

United States ex. rel. Kelly v. Novartis Pharm. Corp., 827 F.3d 5, 10 (1st Cir. 2016) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

         The Court discerns no reason to deny Plaintiff's current request to amend her complaint. See United States ex. rel. Kelly v. Novartis Pharm. Corp., 827 F.3d at 10. Defendants contend that further amendment of the complaint will be futile because even with the proposed amendments the complaint fails to state a claim. However, in its discretion, the Court determines that it is appropriate and in the best interest of judicial economy to accept the Second Amended Complaint as the operative pleading and to determine whether Plaintiff has failed to state a claim accordingly, especially considering that the analysis for futility of a proposed amendment is the same as the general analysis on a motion to dismiss. See Adorno v. Crowley Towing and Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006) (“In assessing futility, the district court must apply the standard which applies to motions to dismiss under Fed.R.Civ.P. 12(b)(6).”) The Court notes that Defendants will not be unduly prejudiced by this approach as the amendments do not substantively change the nature of the claims and Defendants have addressed the legal significance of the amendments in their responsive briefs to Plaintiff's Motion to Amend. The Court therefore GRANTS Plaintiff's Motion to Amend and proceeds to consider the pending Motions to Dismiss with the Second Amended Complaint as the operative pleading.


         A. Legal Standard

         The Federal Rules of Civil Procedure require only that a complaint contain “a short and plain statement of the grounds for the court's jurisdiction . . . a short and plain statement of the claim showing that the pleader is entitled to relief; and a demand for the relief sought.” Fed.R.Civ.P. 8(a)(1)-(3). The Court assumes the truth of the complaint's well-pleaded facts and draws all reasonable inferences in the plaintiff's favor. Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012). Under Rule 12(b)(6), the Court “may consider only facts and documents that are part of or incorporated into the complaint.” United Auto., Aerospace, Agric. Implement Workers of Am. Int'l Union v. Fortuño, 633 F.3d 37, 39 (1st Cir. 2011) (quotation marks omitted).

         A viable complaint need not proffer “heightened fact pleading of specifics, ” but in order to survive a motion to dismiss it must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). At this point in the litigation, “the determination of whether an issue is trialworthy simply is not the same as the determination of whether a plaintiff states a claim upon which relief can be granted.” Bodman v. Maine, Dep't of Health and Human Servs., 720 F.Supp.2d 115, 121 (D. Me. 2010).

         However, “[i]f the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating that a court need not accept “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements”). In short, a plaintiff must plead facts indicating “more than a sheer possibility that a defendant has acted unlawfully.” Id.

         B. Factual Background

         Plaintiff Diane M. Charette was hired on August 26, 2014, to work as the District Coordinator for the St. John Valley Soil and Water Conservation District (“the District”), an agency of the State of Maine. At all material times, the District was governed by a board of five “supervisors” consisting of Defendant David Potter, Chairman; Defendant Duane Theriault, Co-Chairman; Defendant Kurt Coulombe, Treasurer; John “Gene” Desjardins; and Peter Smith. Thomas Schneck was an “associate supervisor.” By statute, Defendant Maine Department of Agriculture, Conservation and Forestry (“the Department”) exercises some oversight and coordination authority over the various state soil and water conservation districts, including the District. Three of the District supervisors are elected and two are appointed by the Department. Approximately two-thirds of the District budget is controlled by the Department. In addition, the Department operates the first election of the supervisors it does not appoint, has promulgated rules governing the elections, and issues oaths of office and certificates of election to the supervisors. David Rocque oversees the soil and water conservation districts on behalf of the Department. During her time as District Coordinator, Charette worked out of an office shared with the United States Natural Resources Conservation Service (“NRCS”) in exchange for her performing services for them and the NRCS paid some portion of her wages.

         In November of 2014, Potter told Charette that she “will not have [her] way with” him and that he would not let her have her way even if she “were to dance naked on the desk.” (Second Amended Complaint (“Compl.”) (ECF No. 19-1) ¶ 32.) Potter was very stern and angry when he made this comment, and Charette found it to be highly offensive. Prior to a November 12, 2014, supervisors' board meeting, Potter asked Charette to find out how the District could purchase heavy equipment through a State of Maine program that sold reduced-price equipment to public entities. Private individuals and for-profit companies were ineligible to participate in the program. Potter asked Charette to find a list of equipment that was available for purchase and to determine how long the District would have to hold on to the equipment before it could be resold. At that time, the District did not have any projects planned or underway to use heavy equipment. Both Potter and Theriault owned private, for-profit businesses that used heavy equipment. Charette subsequently shared information about the purchase price for heavy equipment pursuant to the program with Potter. At the November 12th meeting, Potter stated that the District could make money by purchasing heavy equipment through the program, holding it for eighteen months, and then selling the equipment to the District supervisors. Theriault commented that he could use a dump truck. Desjardins said that the District needed a reason to purchase the equipment for its own use rather than buying it so that the supervisors could profit by purchasing it afterwards. He said that this practice had been conducted before and the people involved were told to cease the practice immediately. In response, Potter said, “then we'll do it until they tell us to stop.” (Compl. ¶ 48.) Charette then stated that she would not do anything illegal. She was concerned that Potter was proposing to misuse government funds for personal gain. Potter became agitated and said to her, “I suppose now you're going to start telling me how to do my job.” (Compl. ¶ 51.) In response, Charette stated, “No, I'm just going to say how I'm going to do my job.” (Compl. ¶ 52.) Charette could sense lots of anger coming from Potter and she was frightened.

         The day after the board meeting, Potter came to Charette's office, said he could not find the resignation letter from a previous District Coordinator, and angrily accused Charette of taking the personnel files of previous District employees. When Charette told him that she had not taken the files, Potter had an outburst and reacted as if she were lying to him. Potter later found the resignation letter at home, but he never apologized for blaming Charette.

         Later that week, Desjardins called Charette to ask how things were going with her job. Charette informed him about how Potter had acted towards her and that she was afraid of him. Smith and Schneck both also contacted Charette and she informed them of her concerns about Potter. Theriault also came into the office, at which time an NRCS employee who shared the office with Charette informed Theriault of how Potter had been acting towards her. Potter learned about Charette's complaints about him shortly after she made them. Generally, although Potter had been stern with Charette since the beginning of her employment, he became more hostile towards her after she complained about his conduct. The week of November 17, 2014, Charette tried to contact Potter by phone and by email in order for him to come to the office to sign her payroll check, but he did not respond. Previously, Potter had always been willing to sign Charette's check. Because Potter would not respond, Charette took the check to Coulombe's house for his signature. At that time, Charette informed Coulombe about her interactions with and fear of Potter.

         On December 18, 2014, Rocque called Charette and informed her that he could come to a board meeting at any time to discuss any issues she was having. Rocque told Charette that another NRCS employee had contacted him because the employee was very concerned about the way Potter was treating Charette. Charette subsequently checked with Coulombe about Rocque attending a board meeting. Coulombe asked for Rocque's phone number and requested that Charette keep the issue between her and Coulombe. That same day, in relation to Charette's request a week earlier for an upgrade to a newer version of Microsoft Word, which request had been supported by Schneck, Potter wrote to Schneck: “I agree that we should upgrade the software on our laptop next year. But, I see no reason why the work can't be done now on the NRCS computer. It['s] right there in front of her. What am I missing?” (Compl. ¶ 65.)

         On December 29, 2014, Potter angrily confronted Charette about working from home on snow days. Charette explained that she had only worked from home on two days during snow storms, and that she had not been told previously that she could not do so. Potter responded that the issue would be addressed with the board. Charette was very uncomfortable during this discussion because she could feel that Potter was very angry at her. The next day, Potter circulated a memo to the other supervisors via email criticizing Charette for working from home and reminding her that “[a]s a new employee, you are still within the six month probationary period.” (Ex. A to Compl. (ECF No. 19-2), Page ID # 237.) After Charette responded by email expressing surprise at Potter's memo, Potter circulated another email stating, in part, that he thought it was “very bad judgment” on her part to work at home without first seeking permission and that she “will need to verify that the [NRCS] office was closed by [an NRCS employee] for ‘snow days' on the days you worked from home.” (Ex. C to Compl. (ECF No. 19-4), Page ID # 239.) Potter later emailed the NRCS employee asking how many days the office had been closed due to bad weather.[2]

         On January 6, 2015, Potter emailed Charette and copied the other supervisors accusing Charette of falsely stating to an outside contact that Potter had been forwarding emails to her personal email address. On January 7, 2015, Potter approached Charette at her desk, asked where the applicants' files were for Charette's position, and sternly warned her not to throw them away because she was still on probation. At some point subsequent to these interactions, Charette's doctor recommended that she no longer have any contact with Potter at all because of the high levels of stress and anxiety their interactions caused her.

         On January 14, 2015, Charette attended a board meeting with her lawyer to express concerns about Potter's behavior. Although Potter and Theriault did not want to let Charette's lawyer address them, they reluctantly agreed to let him make a brief statement, which he did, expressing that Charette had been subjected to sexual harassment and a hostile work environment by Potter. Charette's lawyer provided the board with a letter-“RE: Representation Notice for Diane Charette/Allegations of Harassment and Sexual Harassment”-stating that he was considering filing a complaint with the Maine Human Rights Commission “against the District and individually against [Potter].” (Ex. F to Compl. (ECF No. 19-6), Page ID # 242.) Charette's lawyer also provided the board with a “Grievance Report” by Charette, a written summary of the incidents between Charette and Potter previously described. During the meeting that followed the lawyer's presentation, Potter stated at least twelve times that Charette was a probationary employee and suggested changes to the personnel policy that adversely impacted her, such as changes addressing administrative leave and snow days.[3] Also discussed during the meeting was Charette's authority to sign the contribution agreement between the District and the NRCS. The agreement allowed the District to occupy the NRCS office in exchange for Charette's performing services for the NRCS. Prior to the meeting, Charette was told that she was going to be given the authority to sign the agreement, but Potter deleted her name from the list of people with that authority during the meeting. Coulombe and Theriault agreed with this action. The supervisors also discussed that Charette would be required to give them the passwords for her computer so that they could access the computer whenever they wanted. Finally, during the same meeting, Potter and Theriault refused to allow Charette to go to Bar Harbor to pick up her Government LincPass and to attend an erosion control workshop on February 2, 2015, as she had planned. Potter said it was too early in her employment to allow this and that there was not enough trust yet. The LincPass was required for Charette to continue to work in the NRCS office space and to use the NRCS equipment and access NRCS files, both of which were required for her to fulfill her responsibilities to the NRCS. Coulombe later refused to sign the NRCS contribution agreement that Charette had worked on extensively, stating, “because of this situation I no longer want to do this.” (Compl. ¶ 85.) Previously, Coulombe had signed agreements without incident. Charette emailed Potter to sign the agreement, and she left it for him on her desk. Charette later learned that Potter had not signed the agreement, which put Charette's job in jeopardy.[4]

         On January 15, 2015, Charette's husband took her to the emergency room because Charette thought she was having a heart attack. On January 16, 2015, Charette's primary care provider diagnosed her with anxiety disorder due to her reaction to her working environment. The doctor started Charette on anti-anxiety medication and removed her from work, initially for two weeks. The doctor eventually kept Charette out of work until the end of her employment with the District. As a result of her treatment at work, Charette alleges that she developed mental or psychological disorders, including anxiety disorder, depression, and severe panic attacks. These impairments had a duration of more than six months, impaired her health to a significant extent as compared to what is ordinarily experienced in the general population, and substantially limited one or more of her major life activities. Charette filed a Workers' Compensation claim for mental injury caused by mental stress, which was approved. At some point after Charette went out of work, Potter picked up her paycheck from the accountant's office, and it was withheld from Charette for four weeks even though she made several attempts to receive it.

         Following the January 14th board meeting, Desjardins and Smith wrote to Rocque expressing concern about recent events in the District. They stated, “Since very early in her working for the District, Mrs. Charette shared complaints with both of us and other members concerning statements and conduct by David Potter towards her.” (Ex. H to Compl. (ECF No. 19-8), Page ID # 246.) They further explained that Charette had formally advised the board of her “harassment allegations” at their last meeting. Id. They specifically asked Rocque to attend an upcoming meeting at which the board would discuss the allegations in detail “for guidance and oversight” because they “fear[ed] Mrs. Charette will not be treated fairly.” Id. Finally, they informed Rocque that there had been “discussion about obtaining State surplus property so that it may be made available to our region's individuals, ” asked whether this was “appropriate, ” and further inquired whether property not used for a period of time could be available for purchase by the supervisors. Id. During this period, Charette's lawyer also separately wrote to Rocque, at the behest of Desjardins, explaining her allegations that Potter's behavior towards her had created a hostile work environment. (See Ex. I to Compl. (ECF No. 19-9), Page ID # 247.)

         On January 22, 2015, Charette and her lawyer attended a special board meeting that they understood would address her allegations. Instead, the board went into a special meeting, and Charette and her lawyer were not allowed to participate. In February of 2015, Charette was interviewed by an outside lawyer hired by the District to investigate her allegations.

         On May 7, 2015, the District's lawyer wrote to Charette's lawyer offering, on a three-month temporary basis, to return Charette to work under a different supervisor than the Chair, Potter, which required a change to the personnel policy.[5] Pursuant to this offer, Potter would remain Chair of the board, be present at board meetings, and remain involved in other official business, but Charette would be directly supervised by Smith. With these conditions, Charette believed that she was still medically unable to return to work. On May 26, 2015, Rocque sent an email to the District supervisors that he wanted to schedule a meeting for June 2, which would include Charette, and the topic of which would be “board functionality.” (Compl. ¶ 104.) In response, Potter emailed the supervisors, the District's lawyer, and the NRCS employee in the shared office to state his concern, inter alia, that the board was taking the wrong approach with Charette and that the meeting would “likely amount to a set up by my enemies.” (Ex. K. to Compl. (ECF No. 19-11), Page ID # 250.) At the June 2nd meeting, which Charette and her lawyer attended, her complaints were not addressed. Theriault stated during the meeting that he never wanted Charette in the District Coordinator position.

         Sometime in June, Rocque left Charette phone messages indicating that, if she did not return to work prior to the end of June, the District would not receive certain funds. On June 3, 2015, Charette's lawyer wrote to the District's lawyer expressing concern about the way the June 2nd meeting was handled and the way Charette was being treated; requesting that Charette's job duties and the personnel policies revert back to how they were before she went out of work; and requesting that she be informed of the results of the outside lawyer's investigation. On June 26, 2015, the District's lawyer responded in a letter to Charette's new lawyer, reiterating the offer to change Charette's immediate supervisor on a trial basis and stating that Charette would not be provided with a copy of the outside investigator's report. On July 14, 2015, Charette's lawyer responded by letter that Charette had a mental disability that prevented her from having contact with Potter, and, for that reason, that she was asking for a reasonable accommodation that she not have contact with him after she returned to work. Charette's lawyer stated that Charette was medically unable to return to work under the arrangement proposed by the District. He further stated that he needed some assurance that Charette's complaints were being taken seriously, that appropriate discipline was imposed, and that further harassment would not occur. He also requested that he be sent a copy of the current personnel policy and the date of any revisions in order to identify what policies Charette would like to revert back. (See Ex. N to Compl. (ECF No. 19-14), Page ID # 255.)[6] On July 24, 2015, the topic “State Surplus” appeared on the District board meeting agenda.

         On August 3, 2015, the District's lawyer responded to Charette's lawyer, indicating that Potter had recused himself from any matters relating to Charette's status; requesting that Charette's doctor complete a form to support her reasonable accommodation request; and enclosing a copy of the motions that were passed at an executive session of the board on April 29, 2015, including an amendment to the personnel policy to allow someone other than the Chair to directly supervise the District Coordinator. (See Ex. O to Compl. (ECF No. 19-15), Page ID # 257-58.) On August 25, 2015, Charette's ...

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