Boynton V. CPM Constructors
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SUPERIOR COURT CJVTL ACT! ON DOCKET NO. CV-14-395 STATE Of MATKE CUMBERLAND, ss ww-cum-c~-IV-17 DA.-...;IEL F!Ol;.JTON, Plaintitf ORDER ' CPM CONSTRUCTORS, Defendant Before the court is a motion to dismiss by defendant CPM ConS(TUCtors. For purposes of a motion to dismiss, the material allegations of the complaint mu't be taken as admitted. The complaint must be read in the light most favorable to the plaintiff to determine if it sets forth clements of a cause of action or alleges facts that would entitle plaintiff to relief pursuant to some legal theory. A claim ~hall only be dismissed when it appears beyond doubt that a plaintiff is not entitled to relief under any set of facts that he might prove in support of his claim. In rc Wa~e Pavment Litigat10n, 2000 ME 162 In hts opposition to CPM'~ ~' 3, 759 A.2d 217. motion to dismiss, plaintiff Daniel Boynton concedes that count !II of his complaint, which alleges negligent mfliction of emotional distress, sh,mld be dismissed. Boynton opposes CP.'vfs motion to dismiss cuunt 1 of the complaint, which alleges unla" ful discrimination (hostile work environment), and count II of the complaint, which alleges unla,.,1Ul retaliat!On in violation ofthc whistleblower' protcetmn act. FEB 1o 2D15 RECEIVED Count 1- Unlawful Discnmina_!:ion Roy nton- s cla1m of unlawful employment discrimination is based on the allegation that he was subjected to a hostile work envirorunent because, nn one occasion in August 2012, hi<> foreman approached him in front of his co-workers and publicly berated him for 10 minutes, calling him variou.s derogatory terms including a cross-dressing transsexual, homosexual, and transvestite. Complaint~ 14. 1 CPM contend<> that Boynton's allegations should be dismissed for three reasons. The first is that Boynton fails to allege that he was a member of a protected cla-,s. The second is that Boynton ha.' fallen short nf alleging surriciently severe or pervasive condllcl. The third 1S that Boynton failed to bring his d1scrimination claim widtin the statute of limitation>_ Under the circumstances of this case, to prevail on a clmm of discrimination based on hostile work em ironment. Boynton must show (l) that he is a member of a protected class; (2) that he was subject to llilwelcome hara~sment; (3) that the harassment was based upon his sexual onentation or perceived sexual orientation. (4) that the harassment was .1ufficiently severe and pervastvc as to alter the conditions of his employment and create a hostile or abusive work emiroruncnt; (5) that the ohjectionabk conduct to which he was subjected was both objectively and subjectively offensive; and (6) that official" representing the employer knew or h:Ki re"<~SOn to kno\V of Boynton's hara.<-;ment by hi< supervisors or co-workers See Wall v_ Unifirsr Corp., 2009 \1E 47 mf 22, 25. 969 A.2d 897. The court agrees with CPM that Boynton has not alleged that he is a mernher of a pr01ccted class. The complaint alleges that Boynton v.-as subjected to a homophobic rant, but the 1 The complatnt alleges that this took place ·,n Augu;t 20D but CPM points out hased on subsequent allegations in the complaint and based on Boynton's complaint filed "ith the Human R1ghts Commission, that thJS IS a typographical error and ;ho·Jid read August 2012. In opposing the motion to ctismts>, Boynton doe; not dJSrute that the correct date of the alleged incident wa< .'1 ugust 20 12_ 2 Human Rights Act docs not apply to homophobic statements in the workplace - even if those statements are intended to belittle an individual by labeling him 8..\ a homo~exual. The statute prohib1t.s discrimination against an mdividual because of that individuars sexual orientation or perceived >exual orientation. 5 1\I.R.S_ § 4572(l)(A). See 5 M.R.S. § 4553(9-C) (sexual orientation includes percc1ved sexual orientation) Where Boynton's complamt does not allege that he wa.~ subjected to homophobic slurs becau~e of his sexual onentation or perceived sexual orientation, Boynton ha.s failed to set forth u necessary element of a cause of action for unlawflll employment discrimination. Since this is an 1ssue wh1ch Boynton can remedy by amending his complaint, the court wi II consider CP.\1' s other grounds for dismissal of count ]_ Although Boynton has only alleged one instance of allegedly unlawful harassment and ulthough this may fall short of the kind of severe or pervasive conduct that could support a cluim or hostile work cnvironmcnl,2 a single instance of hara.qsment may be severe enough to create a hostile work environment Doyle v_ Deparrmen/ of Human Services, 2003 ME 611; 23, 824 A.2d 48_ This is an issue which cannot be resolved on the pleadings and would not require the dismiss<~! of Count I. CPM's final argument w1th respect to Count I is thllt Boynton's employment discrimination ~bim is time-barred because his complaint to the Htunan Rights Commissum only asserted a Whistleblowers claim and did not contain a claim of employment di~crimination. CPM has annexed Boynton ·s Human Rights complaint to its motion to dismiss, and the court can con_-,ider that document bccl!use it is an official public doctunent that i5 central to claims under the Human Righl< Act and that is referred to in Boynton's ~omplaint See Complaint": 4; Moody ' See Faragher" Ciry rf Boca Raton, 524 U.S. 775, 788 (1998) (13olated incidonts- unless extremeh serious- do not •mount to dJScrirninatol"}" changes in employment)- 3 v S!ar~ Liquor and !.otter; Commis.wm, 2004 ME 20 y 9-10, 843 A.2d 43. Boynton has not disputed the authenllcity of h1~ Human Rights complaint See 2004 ?viE 20 ~ 12. L'nder the MII.Ri\, discrimination claims must he brought within two years of the act of alleged discrimination or within 90 days after isslllince of a right-to-sue lener by the Human Rights Commis.<ion. 5 \1.R.S. § 4613(2)\C). In this case the complaint was not filed "ithin tv..·o years of the incident which Boynton claims created a hl>stile work envtnmment, and CPM correctly notes that Boynton's Human Rights complaint only asserts a whistlehlowers claim. As a result, CPM argues. Boynton cannot take advantage of the 90-day period after the Commission issued a right to sue letter on Boynton's whistlchlower claim to assert a hostile work environment claim. On this issue the court predicts that the Law Court would adopt the federal ·'scope of mvestigation" rule and find that Boynton's hostile work environment claim would have fallen within the scope of the Human R1ghts Conunission mve.~tigation See Thornton v. Umled Parcel Service Inc.. 587 F.3d 27, 31-32 (lst Cir. 2009), quoting Davis,, Lucenr Technologies Inc, 251 f. 3d 227, 23 3 ( l st Cir. 200 1) (discussing "s~"pe of mvestigation » rule); Doyle v. Deparlmenr of Human Services, 2003 ?viE 61 .. 14 n.7 (appropriate to look to federal precedent in interpreting MHRA). Accordingly, Boynton's empl"yment discrimination daim - if otherwise properly pleaded- would not he time-harred. CoLin! Jl - Whistleblowcr Claim To prevail on a V..'hi.>tlchlower daim, Boynton must show (I) that he engaged in actiVll} protected by the statute, (2) that he suffered an adverse employment action, and (3) that there was a causal link betv..·een the protected activity and the adverse 4 a~tion. Cosrain v. Sunbury Prima~y Care P.A., 2008 ME 142 11 6, 954 A.2d 1051. CP\1's moticm to dismis' challenges v,.hether, on the fdce of the complaint, there is a suffi~ient allegation of protected activity under the Whistkblowers Law An employee engages in protected acllvity if, acting in good faith, he reports to the employer what the employee has "reasonable cause ·• to believe is a violation of Maine or federal law. 26 .\1 R.S. § 833(1 }(A). Boynton alleges that he reponed his foreman's homophobic insull1 tu the chief fmancml officer of CP\1 and was thereafter subjected to a transfer to a differem jobsite and a subsequent layoff. Boynton alleges that he believed the foreman's behavior v,a.s a violation of law. Whether he had reasonable cause for that behef is not an issue that can be resolved on the pleadings_ Tt obviotL<ly depends to some extent on whell1er Boynton believed be was being hara.~sed because of his perceived or actlllil sexual orientation or whether he simply believed that the f(Jreman's homophobic comments 'Were illegal in and of themselves. The latter would present a closer case, but even that cannot be decided absent a factual record. Accordingl}, CPM's motion to dismiss i.< denied as to Count )I. The entry shall be. Defendant" s motion to dismi% Count I of the complaint i~ granted \Vith leave to replead within 20 days. If plaintiff does not amend count l of the complaint to remedy the defect identified in this order within 20 days, count I shall be dismissed with prejudice_ Defendant'8 mouon to dismiss Count !I of the compluint is denied Defendant"s motion w dismiss CoLmt Ill of the complamt is granted without ObJection. The clerk ts directed to incorporate tlus order in the Jocket by reference pursuant to Rule 79(a) 5 Dated: February IO. 2015 (~sD~Warr--~----------Justice. Superior Court 6 CLERK OF COURTS Cumberland County 205 Newbury Street, Ground Floor l'nrtland, ME 041 01 VERNE PARAlll£- ESQ PARAlllE SH'EHMAN WALKER & WORDEN II LISBON STREi':T SUITE 202 LEWISTON ME 04240 7 /a_irr/ 'R\s Prl-'iou'"' ~ CLERK OF COURTS Cumberland County 205 Newbury Street, (lround Floor Portland, ME 04101 MARGARET LEPAGE ESQ PlERCE ATWOOD 254 COMMERCIAL STREET PORTLAND ME 04101 UA'enda"t~ M'lico"'/
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