FISK v. MID COAST PRESBYTERIAN CHURCH et al

Filing 32

ORDER on DEFENDANTS' MOTIONS TO DISMISS granting in part and denying in part 14 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 15 Motion to Dismiss for Failure to State a Claim; granting 21 Motion to Dismiss By JUDGE JON D. LEVY. (akr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
GARRETT A. FISK,
Plaintiff,
v.
MID COAST PRESBYTERIAN
CHURCH, PRESBYTERY OF
NORTHERN NEW ENGLAND,
EARLE WARREN, RICHARD
REESE, and DIANE HOPPEHUGO,
Defendants.

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2:16-cv-00490-JDL

ORDER ON DEFENDANTS’ MOTIONS TO DISMISS
Plaintiff Garrett A. Fisk filed a Complaint (ECF No. 1) on September 23, 2016
against Defendants Mid Coast Presbyterian Church (“the Church”), the Presbytery
of Northern New England (“the Presbytery”), Earle Warren,1 Richard Reese, and
Diane Hoppe-Hugo, alleging violations of federal and state law relating to the
termination of his employment with the Church. The Defendants have filed motions
to dismiss the claims against them. ECF No. 14; ECF No. 15; ECF No. 21.
I. BACKGROUND
The relevant facts as stated in the Complaint are as follows. Fisk began
working with the Church in June 2012 as a temporary employee, placed through a
staffing agency. In January 2013 Fisk became a direct employee of the Church. At

The Complaint identifies Defendant Warren as “Earl Warren,” but Plaintiff recognized in his
opposition to Warren’s Motion to Dismiss that the correct spelling of Warren’s first name is “Earle.”
ECF No. 24 at 1 n.1.
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all relevant times, Diane Hoppe-Hugo worked for the Church as a pastor, and was
Fisk’s supervisor. Richard Reese was a member of the Church and served on the
Church’s Personnel Committee. Earle Warren was a member of the Church and
volunteered with the Church in various roles.

The Presbytery is a non-profit,

religious organization based in New Hampshire that oversees Presbyterian Church
congregations in Maine, and provides resources and services for those congregations.
The Complaint alleges that, in December 2012, while Fisk was working at the
Church through the staffing agency, Warren sent Fisk an email offering oral sex.
Fisk informed Hoppe-Hugo that this solicitation had occurred. In April 2013, Warren
gave Fisk an unwanted massage in the Church’s office. Fisk informed Hoppe-Hugo
of this unwanted touching. In August 2013, Warren pinched Fisk’s nipples while Fisk
was talking on the phone in the Church’s office. Hoppe-Hugo was again informed by
Fisk of the unwanted touching.
Fisk concluded that his conversations with Hoppe-Hugo on the topic had not
led to any investigation or resolution.

He therefore approached the Church’s

Personnel Committee in April 2014 to complain about Warren’s conduct. He told the
members of the Personnel Committee that he needed more protection because HoppeHugo had not done enough to address his concerns. Reese, who was a member of the
Personnel Committee, suggested that Fisk should seek another job if he was no longer
comfortable in his position with the Church. Shortly after Fisk’s meeting with the
Personnel Committee, Hoppe-Hugo sent Fisk two Easter cards, one of which was “a
risqué card of a mostly naked man.” ECF No. 1 at 5, ¶ 30.

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In March 2014, prior to the meeting with the Personnel Committee, Fisk
missed time at work, with permission from the Church, to deal with family and health
issues. Also in March 2014, Hoppe-Hugo chided a co-worker of Fisk’s for giving Fisk
a book as a gift, saying that he would not be able to read it due to his dyslexia.
On May 20, 2014, the Church terminated Fisk’s employment. Fisk was given
no warning that he might be fired. The Church did not offer Fisk any performance
improvement plan or counseling, and took no disciplinary action against him prior to
terminating his employment. The day after Fisk’s employment was terminated, the
Church sent an email to a “friends and family” email list notifying the recipients that
Fisk had been fired, and asserting that the decision was based on “the dramatic
deterioration in office relationships, breaches of confidentiality, insubordination, and
loss of trust.” ECF No. 1 at 5, ¶ 32. Approximately one week later, Hoppe-Hugo sent
another email to the same email list inviting discussion within the Church
community regarding Fisk’s allegations and the termination of his employment.
II. LEGAL ANALYSIS
The Complaint asserts a total of 28 claims against the Defendants. At oral
argument, however, Fisk conceded that Counts Twenty-Two and Twenty-Three,
which allege claims for the Breach of the Implied Covenant of Good Faith and Fair
Dealing and for Conspiracy, are not recognized causes of action under Maine law.
Fisk also conceded that Counts Twenty-Four and Twenty-Five, which allege civil
assault and civil battery, are barred by the statute of limitations. Finally, Fisk
conceded that Counts Twenty-Six, Twenty-Seven, and Twenty-Eight, which allege
Vicarious Liability, Punitive Damages, and Attorney’s Fees and Costs, are properly
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considered as prayers for relief, rather than independent causes of action. Counts
Twenty-Two through Twenty-Eight are therefore dismissed.
A.

Motion to Dismiss Standard
The Defendants move to dismiss the claims against them under Federal Rules

of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject-matter jurisdiction and
failure to state a claim upon which relief may be granted. To survive a motion to
dismiss, the complaint “must contain sufficient factual matter to state a claim to relief
that is plausible on its face.” Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal quotations and
alterations omitted). The court should accept all well-pleaded facts as true, while
ignoring conclusory legal allegations. Id. All reasonable inferences should be drawn
in favor of the non-moving party. Id. at 16. Determining the plausibility of a claim
is a context-specific task that requires the court “to draw on its judicial experience
and common sense.” Id. at 18 (quoting Iqbal, 556 U.S. at 679).
B.

Claims Against the Presbytery
The Complaint premises the Presbytery’s liability on its relationship with the

Church. Fisk asserts that the two entities qualify as a single employer for purposes
of his claims. ECF No. 26 at 5. The allegations in the Complaint that relate to the
Presbytery’s relationship with the Church are as follows: (1) the Presbytery is a
religious non-profit located in New Hampshire; (2) the Presbytery “oversees the
Presbyterian Church congregations in Maine”; (3) the Presbytery “provides Mainebased Clerks, Churches, and Clergy with numerous resources to assist and guide
them”; (4) the Presbytery “holds events in Maine and otherwise provides services to
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individuals and churches within the state of Maine”; and (5) the Church and the
Presbytery “were in privity with each other and maintained a commonality of
interest.”
The First Circuit has recognized three separate tests for determining whether
separate entities qualify as a single employer for Title VII purposes: (1) the
integrated-enterprise test; (2) the corporate law sham test; and (3) the agency test.
See Torres-Negrón v. Merck & Co., Inc., 488 F.3d 34, 42 n.8 (1st Cir. 2007).
The integrated-enterprise test, which is the test applied by a majority of the
circuits, see Romano v. U-Haul Intern, 233 F.3d 655, 665 (1st Cir. 2000), looks at four
factors: (1) common management; (2) interrelation between operations; (3)
centralized control over labor relations; and (4) common ownership, Torres-Negrón,
488 F.3d at 42. The presence of all four factors is not necessary to find that two
entities qualify as a single employer, but special emphasis is placed on the centralized
control of labor relations factor. Id. None of the facts alleged in the Complaint relate
to the Presbytery’s involvement in or control over the Church’s employment decisions.
In addition, there is also no allegation of common management or ownership between
the two entities. While a generous reading of the Complaint does permit an inference
that some of the operations of the two organizations may be interrelated, this alone
does not establish that the two entities should be treated as a single employer under
the integrated enterprise test.
The corporate law sham test is applied to determine whether a parentsubsidiary relationship is a sham, disguising the fact that the two entities are in fact
one company. See Mas Marques v. Digital Equip. Corp., 637 F.2d 24, 27 (1st Cir.
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1980). There are no allegations in the Complaint suggesting that the Presbytery and
the Church stand in a parent-subsidiary relationship, and this test is therefore
inapplicable.
The agency test looks to common law agency principles to determine if one
company is so controlled by the other as to render it effectively the latter’s agent. Id.
Again, none of the allegations in the Complaint give rise to an inference that the
Presbytery controls the operations of the Church to the extent necessary to establish
an agency relationship.
Read in the light most favorable to the Plaintiff, the Complaint does not set
forth sufficient factual allegations to allow the Court to infer that the Presbytery
might qualify as Fisk’s employer. Cf. Iqbal, 556 U.S. at 678. The employment-related
claims in the Complaint therefore fail to state a plausible claim for relief against the
Presbytery.
In addition, there are no additional factual allegations contained in the nonemployment-related claims in the Complaint related to the Presbytery. Thus, there
are no allegations of statements, actions, or omissions made or taken by the
Presbytery or its employees or agents that might establish liability for Fisk’s nonemployment-related claims. Fisk has therefore failed to allege sufficient facts for his
remaining claims against the Presbytery to satisfy the requirements of Rule 12(b)(6).
The Presbytery is accordingly entitled to the dismissal of all claims against it.

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C.

Claims Against the Remaining Defendants
I address in turn each of the claims in the Complaint against the remaining

defendants that has not been waived by Fisk, assessing their sufficiency as against
each defendant.
1.

Count One

Count One alleges sexual harassment in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq.
As an initial matter, there is no individual liability under Title VII. Fantini v.
Salem State College, 557 F.3d 22, 30-31 (1st Cir. 2009). Count One is therefore
dismissed against Defendants Hoppe-Hugo, Reese, and Warren.
The requirements of Title VII only apply to employers with fifteen or more
employees. 42 U.S.C.A. § 2000e(b) (2017). The Church asserts that it has fewer than
the required fifteen employees, a contention that Fisk disputes. At this stage, there
is no factual record on which to determine the answer to this question, and this
argument is therefore best reserved for the summary judgment process.
The Church also contends that the Complaint fails to state a claim for either
of the two categories of sexual harassment claims recognized under Title VII: quidpro-quo sexual harassment, where a supervisor uses his or her superior position and
threats of retaliation to extract sexual favors from a subordinate; and hostile work
environment claims, where sex-based discrimination creates a hostile or abusive
working environment for an employee. See Xiaoyan Tang v. Citizen’s Bank, N.A., 821
F.3d 206, 215 (1st Cir. 2016). Fisk has not alleged any facts related to quid-pro-quo
harassment. To maintain a claim for sexual harassment based on a hostile work
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environment, Fisk must show that he was subjected to unwanted harassment that
was sufficiently severe or pervasive to alter the conditions of his employment, and
that there is a basis for employer liability. Id. at 215-16. The legal significance of
Warren’s status as a volunteer with the Church, rather than an employee, was not
briefed by the parties, and Warren’s status as a volunteer will therefore not be
considered at this stage.
Whether or not a hostile work environment existed is a highly fact-dependent
and context-specific inquiry. See Noviello v. City of Boston, 398 F.3d 76, 94 (1st Cir.
2005). Specifically, courts shy from evaluating the specific instances of misconduct
alleged in a complaint against the legal standard for hostile work environment
claims, because there is no “obligation on the pleader to identify in the complaint all
the evidence that would later be offered in support of the claim pleaded.” Gorski v.
N.H. Dep’t of Corr., 290 F.3d 466, 474 (1st Cir. 2002); see also Mayer v. Prof’l
Ambulance, LLC, --- F. Supp. 3d ---, 2016 WL 5678306, at *8 (D.R.I. Sept. 30, 2016)
(applying Gorski standard post-Iqbal). A motion to dismiss is evaluated “with the
understanding that notice pleading does not require recitation of detailed evidence in
support of the claim.”

Gorski, 290 F.3d at 474.

Considered in this light, the

Complaint contains sufficient factual allegations to plausibly state a hostile work
environment claim.

Fisk has alleged that Warren committed multiple acts of

unwanted sexual touching and communication, and that the Church did nothing to
address his concerns related to these actions, despite being aware of them. Count
One plausibly states a claim against the Church.

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2.

Count Two

Count Two alleges disability discrimination in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. Fisk alleges that he suffers from
dyslexia, and that he suffered an adverse employment action because of his disability.
Individuals who are not themselves employers cannot be held liable under the
ADA. See Román-Oliveras v. P.R. Elec. Power Auth., 655 F.3d 43, 52 (1st Cir. 2011).
Count Two is therefore dismissed as against Defendants Hoppe-Hugo, Reese, and
Warren.
Like Title VII, the ADA applies only to employers with a minimum of fifteen
employees. 42 U.S.C.A. § 12111(5)(A) (2017). The Church maintains that it employs
fewer than fifteen people, but as discussed above, resolution of that question is best
left to the summary judgment process.
The First Circuit has recognized that a plaintiff may maintain a claim for
disability harassment under a hostile work environment theory. See Murray v.
Warren Pumps, LLC, 821 F.3d 77, 86 (1st Cir. 2016). Mindful of the lenient standard
set out in Gorski, as discussed above, I find that there are sufficient factual
allegations in the Complaint to suggest a plausible claim for a hostile work
environment claim under the ADA. Fisk alleges that his supervisor “affirmatively
and actively derided him for his disability,” ECF No. 1 at 7, ¶ 55, and that she made
a comment to a co-worker about his inability to read due to his dyslexia, id. at 5, ¶
28. Count Two states a plausible claim against the Church.

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3.

Count Three

Count Three alleges sex-based discrimination in violation of the Maine Human
Rights Act, 5 M.R.S. § 4572. Claims under the Maine Human Rights Act are governed
by the federal standards that govern Title VII. Forrest v. Brinker Intern. Payroll Co.,
LP, 511 F.3d 225, 228 n.1 (1st Cir. 2007). Like Count One, therefore, Count Three is
dismissed against Defendants Hoppe-Hugo, Reese, and Warren, but not against the
Church.
4.

Count Four

Count Four alleges disability discrimination in violation of the Maine Human
Rights Act. Similar to Count Three, above, this state law claim will be governed by
the federal standards under the ADA. See Carmichael v. Verso Paper, LLC, 679 F.
Supp. 2d 109, 123-24 (D. Me. 2010). As with Count Two, therefore, Count Four is
dismissed against Defendants Hoppe-Hugo, Reese, and Warren, but not against the
Church.
5.

Count Five

Count Five alleges gender-oriented harassment and discrimination under Title
VII. Discrimination based on gender constitutes a claim for sex-based discrimination
under Title VII. Cf. Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). Count
Five is therefore redundant of Count One, and is dismissed.
6.

Count Six

Count Six alleges unlawful retaliation under the Family Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601 et seq. Fisk asserts that he was unlawfully terminated
because he exercised his right to leave under the FMLA.
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The requirements of the FMLA apply only to employers with fifty or more
employees. 29 U.S.C.A. § 2611(4)(A)(i) (2017). As noted with respect to Counts One
and Two, however, any argument based on whether the Church employed the
required number of people must be left to the summary judgment process.
To establish a claim for unlawful retaliation under the FMLA, Fisk must
demonstrate: (1) he availed himself of a protected FMLA right; (2) he was adversely
affected by an employment decision; and (3) there was a causal connection between
his protected conduct and the adverse employment decision.

Carrero-Ojeda v.

Autoridad de Energía Eléctrica, 755 F.3d 711, 719 (1st Cir. 2014). The only factual
allegation in the Complaint that relates to the causation element of Fisk’s FMLA
claim is that he took time off from work in March of 2014, and his employment was
terminated in May of 2014. The First Circuit has made clear, however, that temporal
proximity alone is not enough to support an inference of causation for an FMLA
retaliation claim. See Carrero-Ojeda, 755 F.3d at 720 (affirming dismissal of FMLA
retaliation claim where plaintiff provided “no facts beyond the timing of her
discharge” to support inference of causation).

The factual allegations in the

Complaint are therefore not sufficient to state a claim under the FMLA, and Count
Six is dismissed.
7.

Count Seven

Count Seven alleges a violation of the Maine Whistleblowers’ Protection Act,
26 M.R.S. § 833.

Fisk asserts that Defendants terminated his employment in

retaliation for his complaints regarding the alleged harassment by Warren. The
decision to terminate Fisk’s employment was made shortly after Fisk approached the
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Church’s Personnel Committee with his complaints about Hoppe-Hugo’s handling of
his harassment allegations. The close temporal proximity between the two permits
the inference that they are causally related. See LePage v. Bath Iron Works Corp.,
2006 ME 130, ¶ 19, 909 A.2d 629 (noting that “once the plaintiff has shown a
protected activity followed in close proximity by an adverse employment action, this
gives rise to an inference that a causal connection is established”) (internal quotations
and alterations omitted). Count Seven therefore states a plausible claim for relief
against the Church. Because there is no individual supervisory liability under the
Maine Whistleblowers’ Protection Act, however, Count Seven fails to state a claim
against Hoppe-Hugo, Reese, and Warren, and must be dismissed as to them. See
Fuhrmann v. Staples Office Superstore East, Inc., 2012 ME 135, ¶ 35, 58 A.3d 1083.
8.

Count Eight

Count Eight alleges retaliation in violation of the Maine Human Rights Act.
This claim is based on the same conduct underlying Fisk’s Whistleblowers’ Protection
Act claim, above. The Maine Human Rights Act provides a cause of action for
violation of the Whistleblowers’ Protection Act, and references the Whistleblowers’
Protection Act in the text of the statute. 5 M.R.S.A. § 4572(1)(A) (2017). Count Eight
is therefore redundant of Count Seven and is dismissed.
9.

Count Nine

Count Nine alleges the creation of a hostile work environment in violation of
Title VII. This count is redundant of Count One and is therefore dismissed.

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10. Count Ten
Count Ten alleges the creation of a hostile work environment in violation of
the Maine Human Rights Act.

This count is redundant of Count Three and is

therefore dismissed.
11. Count Eleven
Count Eleven alleges unlawful employment discrimination in violation of the
Maine Human Rights Act. Fisk claims that his employment was terminated as a
result of his complaints regarding the alleged sexual harassment by Warren. This
claim is therefore redundant of Count Seven and is dismissed.
12. Count Twelve
Count Twelve alleges a common law claim for wrongful discharge, based on
Fisk’s disability and status as a whistleblower. Maine’s Law Court has declined to
recognize a common law tort for wrongful discharge where a statutory scheme exists
to vindicate the same right. See, e.g., Bard v. Bath Iron Works, 590 A.2d 152, 156
(Me. 1991) (refusing to recognize wrongful discharge tort where Whistleblowers’
Protection Act serves same policy); Paquin v. MBNA Mktg. Sys., Inc., 195 F. Supp. 2d
209, 210-11 (D. Me. 2002) (declining to recognize tort that would be redundant of
Maine Human Rights Act). It is the existence of the relevant statutory scheme, rather
than the viability of a particular plaintiff’s claim under that scheme, that controls.
See Smith v. Heritage Salmon, Inc., 180 F. Supp. 2d 208, 220 (D. Me. 2002) (refusing
to recognize wrongful discharge claim where same policy was vindicated by
Whistleblowers’ Protection Act, despite fact that plaintiffs did not have a viable claim
under the Whistleblowers’ Protection Act). Because the Whistleblowers’ Protection
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Act and the ADA exist to vindicate the policies underlying Fisk’s wrongful discharge
claim, Count Twelve is dismissed.
13. Count Thirteen
Count Thirteen alleges interference with Fisk’s exercise of free expression in
violation of the Maine Human Rights Act. This count asserts that Fisk’s employment
was terminated because he exercised his rights to free expression by complaining
about the alleged harassment of Warren. As such, it is redundant of Count Seven
and is dismissed.
14. Count Fourteen
Count Fourteen alleges defamation, arising out of comments made by HoppeHugo relating to the termination of Fisk’s employment. There is a two-year statute
of limitations for defamation claims in Maine. Knowlton v. Shaw, 708 F. Supp. 2d
69, 76-77 (D. Me. 2010). The statements alleged to constitute defamation were made
in two emails sent in May of 2014. The Complaint was filed in September of 2016.
Fisk’s defamation claim is therefore barred by the statute of limitations and is
dismissed.
15. Count Fifteen
Count Fifteen alleges a claim for false light, based on the same statements that
underlie his defamation claim. Like defamation claims, false light claims are subject
to a two-year statute of limitations in Maine. See Gashgai v. Leibowitz, 703 F.2d 10,
12-13 (1st Cir. 1983). This claim is therefore barred by the statute of limitations and
is dismissed.

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16. Count Sixteen
Count Sixteen alleges a claim for interference with advantageous economic
relations. Fisk asserts that the Church interfered with the possibility of his future
employment by other religious organizations in the region, and also caused his
employment with the Church to be terminated.
Tortious interference with advantageous economic relations generally does not
apply to a contract or other economic relations between the plaintiff and the
defendant. See Beaudoin v. Comm. Partners, Inc., 2006 WL 627151, at *1 (Me. Sup.
Mar. 3, 2006); see also Restatement (Second) of Torts § 766. The tort is instead
designed to protect a plaintiff from interference by a person who is not a party to the
contract or economic relationship. Fisk’s claim therefore fails insofar as it seeks
redress for interference with his economic relations with the Church.
Fisk also fails to state a claim for interference with economic relations based
on potential employment with other religious organizations. To prove interference
with an advantageous relationship, a plaintiff needs to show “the existence of a valid
contract or prospective economic advantage, interference with that contract or
advantage through fraud or intimidation, and damages proximately caused by the
interference.” Harlor v. Amica Mut. Ins. Co., 2016 ME 161, ¶ 12, 150 A.3d 793. There
are no facts alleged in the complaint that relate to the existence of a prospective
economic advantage with another religious organization, or that give rise to an
inference that the Defendants interfered with that advantage.
therefore fails to state a plausible claim for relief and is dismissed.

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Count Sixteen

17. Count Seventeen
Count Seventeen alleges invasion of privacy. Fisk asserts that the Defendants
invaded his privacy by making statements pertaining to his termination, similar to
the defamation and false light claims discussed above. False light, alleged in Count
Fifteen, is a sub-type of the invasion of privacy tort. See Veilleux v. Nat. Broad. Co.,
206 F.3d 92, 131 (1st Cir. 2000). As discussed above, that claim is barred by the
statute of limitations. The other three species of invasion of privacy tort are: 1)
unreasonable intrusion upon the seclusion of another; 2) appropriation of another’s
name or likeness; and 3) unreasonable publicity given to another’s private life. See
id. Fisk has not alleged any facts that relate to these three torts, and therefore fails
to state a plausible claim for relief. Count Seventeen is dismissed.
18. Count Eighteen
Count Eighteen alleges intentional infliction of emotional distress.

Fisk

asserts that the Defendants, through their statements, actions, and omissions,
intentionally or recklessly caused him severe emotional distress.
The Church asserts that this claim is preempted by the Maine Workers’
Compensation Act. The Maine Law Court has held that the Workers’ Compensation
Act shields employers from tort liability arising out of incidents of sexual harassment,
including claims for intentional and negligent infliction of emotional distress, when
the harassment at issue is “sufficiently work related.” See Frank v. L.L. Bean, Inc.,
352 F. Supp. 2d 8, 11 (D. Me. 2005) (citing Knox v. Combined Ins. Co. of Am., 542 A.2d
363, 366 (Me. 1988)) (quotation marks omitted). An injury is sufficiently work-related
when it is suffered both while and because the employee was at work. Id. In order
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to show that it is entitled to dismissal on this basis, however, the Church must
demonstrate that is has secured coverage for its employees under the Workers’
Compensation Act. See 39-A M.R.S.A. § 104 (2017). At this stage of the proceedings,
the Court does not have an evidentiary record from which to determine whether the
Church has secured such coverage. The preemption issue is therefore best left for
resolution on summary judgment.
In order to succeed on a claim of intentional infliction of emotional distress,
Fisk would need to establish that: (1) the Defendants intentionally or recklessly
inflicted severe emotional distress; (2) the Defendants’ conduct was so extreme or
outrageous as to exceed all possible bounds of decency and must be regarded as
atrocious and utterly intolerable in a civilized society; (3) the Defendants’ conduct
actually caused Fisk’s distress; and (4) the emotional distress suffered by Fisk was so
severe that no reasonable person could be expected to endure it. See Lyman v. Huber,
2010 ME 139, ¶ 16, 10 A.3d 707. Courts play a gatekeeping role in determining, as a
matter of law, whether alleged conduct is sufficiently extreme or outrageous to
support a claim for intentional infliction of emotional distress, including at the motion
to dismiss stage. See LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 511 (1st
Cir. 1998) (citing Gray v. State, 624 A.2d 479, 484 (Me. 1993)).
The statements, actions, or omissions mentioned in the Complaint that can be
attributed to the Church, Hoppe-Hugo, and Reese are: (1) Hoppe-Hugo’s failure to
adequately address Fisk’s complaints about Warren; (2) Hoppe-Hugo’s statement to
Fisk’s co-worker that Fisk would be unable to read a book because of his dyslexia; (3)
Reese’s suggestion that Fisk seek another job after Fisk complained to the Personnel
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Committee regarding Hoppe-Hugo’s failure to remedy the harassment from Warren;
(4) Hoppe-Hugo’s sending a “risqué” Easter card featuring a “mostly naked man” to
Fisk; and (5) the Church’s emails to “friends and family” regarding the purported
reasons for Fisk’s termination. This alleged conduct, although disturbing, is not
sufficiently extreme or outrageous to support a claim of intentional infliction of
emotional distress. See Gavrilovic v. WorldWide Language Res., Inc., 2005 WL
3369155, at *25-26 (D. Me. Dec. 8, 2005) (holding sexist insults, failure to prevent
sexual harassment, and vulgar, offensive emails insufficient to meet “high” standard
for intentional infliction of emotional distress claim); Berry v. WorldWide Language
Res., Inc., 716 F. Supp. 2d 34, 52-55 (D. Me. 2010) (finding employer’s refusal to
provide flight home from war zone in Afghanistan and threats made against
employee’s family and physical safety insufficient to meet standard); Baker v.
Charles, 919 F. Supp. 41, 46 (D. Me. 1996) (finding defamatory conduct described as
“rude, belligerent, uncivil and vindictive” insufficient to meet “stringent standard”).
Count Eighteen is therefore dismissed as against the Church, Hoppe-Hugo, and
Reese.
Fisk’s claim against Defendant Warren is based on his allegations that
Warren: (1) sent Fisk an email offering oral sex; (2) gave Fisk an unwanted massage
in the Church office; and (3) pinched Fisk’s nipples while Fisk was on the phone.
Whether these actions amount to extreme and outrageous conduct sufficient to
support a claim for intentional infliction of emotional distress will depend on the
details and context of the alleged events. The conduct alleged is not so extreme and
outrageous that it would necessarily result in liability, but reasonable people may
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differ as to whether, viewed in the context of the relevant surrounding circumstances,
the conduct is sufficiently outrageous to support recovery. See Colford v. Chubb Life
Ins. Co. of Am., 687 A.2d 609, 616 (Me. 1996) (quoting Rubin v. Matthews Int’l Corp.,
503 A.2d 694, 699 (Me. 1986)). In light of the lenient standard at the motion to
dismiss stage, it remains plausible that Fisk can prove a factual scenario under which
Warren’s alleged actions constitute extreme and outrageous conduct. See Caldwell
v. Federal Exp. Corp., 908 F. Supp. 29, 34 (D. Me. 1995) (declining to dismiss
intentional infliction of emotional distress claim arising out of alleged sexual
harassment). Thus, it is plausible that Fisk could demonstrate each of the elements
of intentional infliction of emotional distress.

Count Eighteen is therefore not

dismissed as against Defendant Warren.
19. Count Nineteen
Count Nineteen alleges negligent infliction of emotional distress, based on the
Defendants’ breach of their alleged duty to refrain from making statements that
would reflect poorly on Fisk’s character and truthfulness.
The claim of negligent infliction of emotional distress requires the existence of
a “special relationship” that creates a duty between the actor and the person who is
emotionally harmed. See Curtis v. Porter, 2001 ME 158, ¶ 19, 784 A.2d 18. The
employer-employee relationship does not qualify as a special relationship for
purposes of negligent infliction of emotional distress. See Berry, 716 F. Supp. 2d at
52. Neither does the relationship between church and church-goer. See Bryan R. v.
Watchtower Bible and Tract Soc. of N.Y., Inc., 1999 ME 144, ¶ 32, 738 A.2d 839.

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Because Fisk has failed to allege facts that might establish that a special relationship
existed between him and any of the Defendants, Count Nineteen is dismissed.
20. Count Twenty
Count Twenty alleges negligent supervision against the Church, Hoppe-Hugo,
and Reese, based on their failure to control Warren and prevent him from allegedly
harming Fisk.
Similar to negligent infliction of emotional distress, the tort of negligent
supervision requires the existence of a special relationship between the plaintiff and
the defendant. See Dragomir v. Spring Harbor Hosp., 2009 ME 51, ¶ 16, 970 A.2d
310. Such a special relationship may include “fiduciary relationships in which there
exists a great disparity of position and influence between the parties.” Id. at ¶ 19
(quotation omitted).

Examples include the relationship between a hospital and

highly vulnerable psychiatric patients, see id. at ¶ 21, or that between a church and
a student/altar boy who was sexually abused by a priest, see Fortin v. The Roman
Catholic Bishop of Portland, 2005 ME 57, ¶ 34, 871 A.2d 1208.
An employment relationship or the relationship between church and churchgoer does not satisfy this high standard. Cf. Bryan R., 1999 ME 144, at ¶¶ 21-22 (no
“special relationship” between church and church-goer); Gniadek v. Camp Sunshine
at Sebago Lake, Inc., 2011 ME 11, ¶ 22, 11 A.3d 308 (no “special relationship” between
summer camp for chronically ill children and campers). Fisk has failed to plead facts
that plausibly demonstrate that a special relationship existed between him and the
Defendants for purposes of a negligent supervision claim. Count Twenty is therefore
dismissed.
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21. Count Twenty-One
Count Twenty-One alleges that the Church breached the terms of Fisk’s
employment contract. Fisk asserts that he was provided with a contract and an
employee handbook that contained workplace procedures and policies relating to
sexual harassment and workplace safety. Fisk asserts that despite these alleged
contractual terms, the Church failed to adequately address Fisk’s concerns related to
the alleged harassment by Warren. Fisk further alleges that he was terminated in
violation of the terms of his employment contract.
Though Maine is generally an at-will employment state, see Libby v. Calais
Regional Hosp., 554 A.2d 1181, 1182 (Me. 1989), express restrictions contained in a
contract or an employee handbook that has been incorporated into the employment
contract can restrict the employer’s right to terminate an employee, see Taliento v.
Portland W. Neighborhood Planning Council, 1997 ME 194, ¶ 9, 705 A.2d 696.
Furthermore, terms and conditions presented in connection with an offer of
employment may be enforceable as part of an employment contract. Cf. Whitney v.
Wal-Mart Stores, Inc., 2004 WL 2792297, at *11 (D. Me. Dec. 3, 2004). Accepting all
factual assertions in the Complaint as true and drawing all inferences in favor of the
Plaintiff, as I must at this stage, I find that Fisk has alleged sufficient facts to state
a plausible claim for breach of contract against the Church. Fisk does not allege,
however, that Defendants Hoppe-Hugo, Reese, and Warren were parties to the
alleged contract, and therefore Count Twenty-One is dismissed as against HoppeHugo, Reese, and Warren.

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III. CONCLUSION
Based on the foregoing, it is hereby ORDERED that:


Defendant Presbytery of Northern New England’s Motion to Dismiss (ECF
No. 21) is GRANTED.



Defendant Earle Warren’s Motion to Dismiss (ECF No. 15) is GRANTED
with respect to Counts One through Seventeen and Nineteen through
Twenty-Eight, and is DENIED with respect to Count Eighteen.



Defendant Mid Coast Presbyterian Church’s Motion to Dismiss (ECF No.
14) is GRANTED with respect to Counts Five, Six, Eight through Twenty,
and Twenty-Two through Twenty-Eight, and DENIED with respect to
Counts One through Four, Seven, and Twenty-One.



Defendant Diane Hoppe-Hugo’s Motion to Dismiss (ECF No. 14) is
GRANTED.



Defendant Richard Reese’s Motion to Dismiss (ECF No. 14) is GRANTED.

SO ORDERED.
Dated this 4th day of May 2017
/s/ JON D. LEVY
U.S. DISTRICT JUDGE

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