United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION TO DISMISS
TORRESEN UNITED STATES CHIEF DISTRICT JUDGE.
me is the Defendant's motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6). (ECF No. 6). For
the reasons stated below, the motion is
Rule 12(b)(6), a party may move to dismiss for “failure
to state a claim upon which relief can be granted.” In
reviewing a 12(b)(6) motion, the court must “construe
all factual allegations in the light most favorable to the
non-moving party to determine if there exists a plausible
claim upon which relief may be granted.” Flock v.
U.S. Dep't of Transp., 840 F.3d 49, 54 (1st Cir.
2016) (citation omitted). A complaint need only be plausible
and does not have to allege every fact necessary to win at
trial. Rodríguez-Vives v. P.R. Firefighters Corps
of P.R., 743 F.3d 278, 283 (1st Cir. 2014). Put another
way, a plaintiff need not “plead facts sufficient to
establish a prima facie case” to survive a motion to
Plaintiff is Lazarus Donato. Donato began working for
Defendant Granite Bay Care, Inc. (“Granite
Bay”) eight years ago. Compl. ¶ 6 (ECF
No. 1-1). Granite Bay provides residential home services for
individuals with cognitive and developmental disabilities.
Compl. ¶ 7.
August 2015, Donato was working as a House Manager at Granite
Bay's Gorham, Maine location. Compl. ¶¶ 5-8. He
became concerned that a subordinate, “Mr. X, ”
was not providing sufficient support to clients. Compl.
¶ 8. Donato addressed “what he believed to be
client safety issues” with Mr. X several times. Compl.
¶ 9. But despite Donato's efforts, Mr. X's
conduct did not improve. Compl. ¶ 9. So, in November
2015, Donato relayed his concerns about Mr. X to Program
Manager Patrick Abedi and Area Director Elmautz Abdelrahim.
Compl. ¶ 10. Donato also spoke with Abedi about
conducting a performance review for Mr. X. Compl. ¶ 11.
Abedi believed that Abdelrahim would reject any attempt to
take corrective action against Mr. X because Abdelrahim and
Mr. X were friends outside of work. See Compl.
December 16, 2015, Donato “took two hours off from work
due to an emergency.” Compl. ¶ 13. Abdelrahim
wrote up Donato for taking the time off. Compl. ¶ 13.
When Donato questioned Abdelrahim as to why Mr. X could take
time off with no issues while he could not take two hours
off, he was given a corrective action without any counseling.
Compl. ¶ 13. Donato told Abdelrahim that he felt he was
being discriminated against because Mr. X was not being
punished for anything, yet Donato was punished. Compl. ¶
14. In response, Abdelrahim threatened Donato with additional
corrective action and said that Donato's program was
being “monitored for fraudulent work hours.”
Compl. ¶ 15. Abdelrahim also warned Donato “to
watch his tone because [he] had the power to replace him at
any given time.” Compl. ¶ 15.
January 6, 2016, Donato met with Director of Operations
Elizabeth Sullivan and Human Resources Director Amy Fecteau
to express his concerns about “Abdelrahim's
intimidation, discrimination and abuse of power.”
Compl. ¶ 17. Sullivan and Fecteau recommended that they
meet with Abdelrahim and Abedi and said that they would serve
as “mediators/supervisors.” Compl. ¶ 17.
Before the meeting, Abdelrahim attempted to make Donato
“sign an agreement to not bring up discrimination at
the meeting;” Donato refused. Compl. ¶ 17.
meeting did not go well. Abdelrahim accused Donato of being a
liar and said he no longer wanted to work with him. Compl.
¶ 18. On January 27, 2016, Sullivan called Donato and
told him he was being “transferred to another location
about an hour away from his home.” Compl. ¶ 19.
Donato told Sullivan that he did not want to be transferred,
and Sullivan told him that he could either “voluntarily
resign or take a demotion.” Compl. ¶ 20.
Accordingly, Donato “was forced to accept the transfer
and started working in Waterboro in early February of
2016.” Compl. ¶ 20.
March 22, 2017, Donato brought suit in state court against
Granite Bay for retaliation in violation of the Maine
Whistleblower Protection Act
(“MWPA”) and the Maine Human
Rights Act (“MHRA”). After
removing the case to this Court based on diversity
jurisdiction, Granite Bay filed this motion to dismiss.
establish a retaliation claim, an employee must prove that
“(1) she engaged in activity protected by the statute;
(2) she suffered an adverse employment action; and (3) there
was a causal link between the protected activity and the
adverse employment action.” Harrison v. Granite Bay
Care, Inc. 811 F.3d 36, 46 (1st Cir. 2016) (citing
Costain v. Sunbury Primary Care, P.A., 954 A.2d
1051, 1053 (Me. 2008)).
Bay contends that Donato fails to state a plausible
retaliation claim because he has not sufficiently alleged an
adverse employment action. Def.'s Mot. to Dismiss 1.
“An adverse employment action is an action that
materially changes the conditions of an employee's
employment.” Sullivan v. St. Joseph's Rehab.
& Residence, 143 A.3d 1283, 1288 (Me. 2016). The
MWPA defines discrimination by stating that “[n]o
employer may discharge, threaten or otherwise
discriminate against an employee regarding the employee's
compensation, terms, conditions, location or privileges of
employment.” 26 M.R.S.A. § 833(1) (emphasis
added). Accordingly, “threats by an employer against