United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION TO DISMISS COUNTS II
Torresen, United States Chief District Judge.
employment action, Plaintiff Joanna Moore asserts three
claims against Defendant Granite Bay Care, Inc.
(“Granite Bay”). Count I of Ms.
Moore's First Amended Complaint
(“FAC”) alleges that Granite Bay
retaliated against Ms. Moore for reporting poor conditions in
one of Granite Bay's facilities, in violation of the
Maine Whistleblower Protection Act
(“MWPA”) and the Maine Human
Rights Act (“MHRA”). FAC
¶¶ 66-79 (ECF No. 1-3). Counts II and III allege,
respectively, that Granite Bay subjected Ms. Moore to
impermissible disparate treatment because of her age and to a
hostile work environment, both in violation of the MHRA. FAC
¶¶ 1, 80-95. Before me is Granite Bay's motion
under Federal Rule of Procedure 12(b)(6) to dismiss Count II
outright and to dismiss Count III to the extent it asserts an
age-based hostile work environment claim. (ECF No. 7.) For
the reasons that follow, I DENY the motion
Moore is a 58-year-old Maine resident. FAC ¶¶ 2,
13. Granite Bay is a New Hampshire corporation that operates
residential treatment centers in Maine. FAC ¶ 4;
see FAC ¶¶ 15, 16. Beginning in February
2014, Granite Bay employed Ms. Moore as a Direct Support
Professional and Certified Residential Medication Aide. FAC
¶ 14. In that role, Ms. Moore worked with
developmentally disabled adults in a facility located at 23
Cape Road in Raymond, Maine. FAC ¶¶ 15-16.
Holmes supervised Ms. Moore at the Cape Road home. FAC ¶
17. In the fall of 2014, Ms. Holmes began to harass Ms.
Moore. FAC ¶¶ 19, 20, 22-27. Ms. Holmes openly
directed animosity towards the older employees at the home
and specifically told Ms. Moore's colleagues that she
hoped to replace the older staff, including Ms. Moore, with
younger workers. FAC ¶ 19. By the end of Ms. Moore's
tenure at Granite Bay, all of the older staff had been
terminated and supplanted by younger hires. FAC ¶ 88.
December 3, 2014, Ms. Moore arrived for her shift to find
that a resident had been neglected for an entire day. FAC
¶ 28. She had not been given food, and, as she had not
left her bed, she was soaked in her own urine. FAC ¶ 28.
Ms. Moore reported these conditions to the Maine Department
of Health and Human Services
(“DHHS”). FAC ¶ 30.
the report of neglect, Ms. Holmes redoubled her harassment of
Ms. Moore, making threatening comments toward Ms. Moore in
front of her co-workers, reducing her hours, refusing to
allow her to take breaks, and giving her excessive lists of
tasks. FAC ¶¶ 40-41, 45-49, 51-54. Things came to a
head on January 30, 2015, when Ms. Holmes falsely reported to
Granite Bay's human resources department that Ms. Moore
had refused to assist other staff in restraining a client and
that Ms. Moore had brought a can of bear spray to the home to
use on patients. FAC ¶¶ 57-61. Although Ms. Moore
vigorously denied these allegations, Granite Bay eliminated
her hours and, on February 6, 2015, formally terminated her
employment. FAC ¶¶ 62-64.
April 23, 2015, Ms. Moore filed a Complaint of Discrimination
with the Maine Human Rights Commission
“Charge”). (ECF No. 7-1). The
complaint form used by the MHRC provides space for employees
to describe the particulars of their charge, into which Ms.
Moore entered the following information:
I believe I have been unlawfully discriminated against in
employment because I engaged in activity protected under
Title 26. I believe this to be in violation of rights
accorded me by the Maine Human Rights Act, the
Whistleblowers' Protection Act, as well as state
employment regulations, in that: . . .
b) On December 3, 2014, I found that a client had been in a
soaked bed and her clothing wet with urine while two staff
people had been there with her all morning. The client had
not eaten, her clothes had not been changed and the bed had
not been cleaned. Therefore, I reported this situation to
DHHS. . . .
d) After this, Housing Manager Danielle Holmes cut my hours
down to 30 and then harassed me physically, verbally and by
showing me a hateful video. I tried to bring this retaliatory
treatment to the attention of management, but was told they
heard I “was afraid” of the clients and, for the
client's safety, they would move some of the employees. .
f) On February 6, 2015, I received a note from the H.R. Dept.
indicating that for the safety of the staff and the client, I
was being terminated. I let them know a staff person said the
current house manager was wanting “to get rid of the
older people on the weekend staff, ” which included me.
I was then called to the office, where the employer claimed I
was afraid of the client and unwilling to do restraints,
which was not at all true.
g) I believe the reasons given by the employer for my
termination are a pretext. I believe the real reasons for my
termination are retaliation after reporting unsafe and/or
illegal activity in the workplace and because I reported the
activity to an outside agency after no appropriate action was
taken by the employer to rectify the situation.
at 2. The complaint form also includes a series of
check-boxes through which employees may indicate the basis
for their discrimination charge-for example, “race,
” “age, ” and “sex.” Charge at
1. Ms. Moore ticked only the box labelled