COOK v. MAINEHEALTH et al

Filing 17

REPORT AND RECOMMENDED DECISION re 9 MOTION to Dismiss for Failure to State a Claim filed by NORDX, MAINEHEALTH. Objections to R&R due by 5/1/2018. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JASON COOK,
Plaintiff
v.
MAINEHEALTH, et al.,
Defendants

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2:17-cv-00428-JDL

RECOMMENDED DECISION ON DEFENDANTS’ MOTION TO DISMISS
In this action, Plaintiff Jason Cook alleges that his former employers, Defendants
MaineHealth and NorDx, violated his rights under the Uniformed Services Employment
and Reemployment Rights Act, federal and Maine medical leave law, the Maine Human
Rights Act, and the Employee Retirement Income Security Act.
The matter is before the Court on Defendants’ Partial Motion to Dismiss Plaintiff’s
Complaint. (ECF No. 9.) Through their motion, Defendants contend that Plaintiff has
failed to state an actionable claim under the Maine Human Rights Act (MHRA) against
Defendant MaineHealth for events that occurred after the termination of Plaintiff’s
employment with NorDx; that Plaintiff failed to exhaust any such claim administratively;
and that Plaintiff’s MHRA claim against Defendant NorDx is barred by the applicable
statute of limitation.
Following a review of the pleadings and after consideration of the parties’
arguments, I recommend the Court grant in part and deny in part the motion.

BACKGROUND
The following facts are drawn from Plaintiff’s complaint and are accepted as true
for purposes of evaluating the pending motion to dismiss. McKee v. Cosby, 874 F.3d 54,
59 (1st Cir. 2017).
MaineHealth, a non-profit organization, offers employee benefits to its whollyowned subsidiaries through what it describes as “eligible employer groups” or “single
member organizations.” The subsidiaries/benefit groups/organizations include NorDx and
Maine Medical Partners (MMP). (Complaint ¶¶ 5, 8, 13.)1
Plaintiff worked for NorDx as a Phlebotomist I in a laboratory at the Maine Medical
Center (MMC) from May 12, 2014, through July 16, 2015, when his employment was
terminated. (Id. ¶¶ 6, 26.) Plaintiff then briefly worked for MMP, but MMP terminated
Plaintiff’s employment in November 2015. (Id. ¶¶ 14 – 15.) While Plaintiff was employed
by NorDx and MMP, MaineHealth issued Plaintiff’s pay. (Id. ¶¶ 7, 16.)
Plaintiff alleges that MaineHealth is the “actual employer” of persons who work at
NorDx and MMP. (Id. ¶ 17.) Alternatively, Plaintiff alleges that MaineHealth, NorDx,
MMP, and MMC constitute an “integrated enterprise.” (Id. ¶ 18.)
NorDx and MaineHealth human resources records reflect that Plaintiff has a
disability he acquired while on active duty with the United States Army, prior to his
employment with NorDx and MMP. (Id. ¶¶ 27 – 34, 36, 42.) Due to his disability, Plaintiff

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In his complaint, Plaintiff joins MaineHealth and NorDx, but not MMP. Defendants’ corporate disclosure
statement reflects that NorDx is a member organization of MaineHealth, and that MaineHealth is a Maine
non-profit corporation. (ECF No. 8.)
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called out of work more than the applicable leave policy allowed. (Id. ¶¶ 40 – 41.)
According to Plaintiff, Defendants invoked their disciplinary process without engaging in
a process to determine Plaintiff’s need for an accommodation. (Id. ¶¶ 41, 46.) Plaintiff
alleges that with this approach, “Defendants treated [him] differently than other disabled
employees with medical conditions which were not service related.” (Id. ¶ 47.)
After co-workers complained to NorDx about Plaintiff’s condition at work, Plaintiff
explained the nature of his disability and the related medications, and asked to be referred
to Employee Health for an evaluation, but NorDx refused his request.

(Id. ¶ 55.)

Subsequently, Plaintiff was offered the opportunity to have his physician complete a form
for Employee Health, and to undergo an examination by Employee Health. (Id. ¶¶ 60, 62
– 66.) Plaintiff evidently declined the opportunity. (Id. ¶¶ 67, 69.)
Plaintiff’s physician did provide a letter stating that due to his disability, Plaintiff
must be limited to six collections (in his job as a phlebotomist) per hour. (Id. ¶ 72.) On
April 20, 2015, Plaintiff received a letter stating the interactive process for assessing his
request for an accommodation had ended, and that he was able to perform all the essential
functions of his job without an accommodation. (Id. ¶¶ 74 – 75.)
In May and June 2015, NorDx took additional corrective action toward Plaintiff
and/or issued write ups for attendance problems. (Id. ¶¶ 78 – 81.) As of June 2015, Plaintiff
qualified for leave under state and federal medical leave laws. (Id. ¶ 84.) Plaintiff called
the medical leave administrator, but NorDx terminated his employment without further
process following another absence. (Id. ¶ 85.)

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Plaintiff applied for a medical assistant position with MMP after the termination of
his employment with NorDx. According to Plaintiff, “MaineHealth rehired [Plaintiff] to
work at MMP, but fired him in November of 2015 for reasons that demonstrate disability
discrimination similar to the allegations set forth above [in the complaint].” (Id. ¶ 92.)
Additionally, Plaintiff asserts that “MaineHealth, by and through its two divisions MMP
and NorDx, knowingly and willfully violated multiple state and federally protected rights
of Plaintiff.” (Id. ¶ 93.)
Plaintiff alleges that Defendants violated the MHRA by failing to accommodate his
disability, failing to engage in an interactive process, requiring that he undergo a medical
examination, and retaliating against him in response to his request for accommodation and
report of disability discrimination. (Id. ¶¶ 119 – 121.) Plaintiff contends “MaineHealth
subjected Plaintiff to a continuing violation of the MHRA based on disability
discrimination, starting with his employment at NorDx and continuing through his
employment with and termination from MMP.” (Id. ¶ 22.)
Plaintiff filed an administrative charge of discrimination with the United States
Equal Opportunity Commission. (Id. ¶ 20, ECF No. 9-1.) The charge and the notice are
both directed to NorDx Labs and asserts a claim of disability discrimination. In the charge,
which Plaintiff signed on May 4, 2015, Plaintiff describes events that occurred while
Plaintiff was a NorDx employee. (Id.)

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DISCUSSION
A.

Motion to Dismiss Standard

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may seek dismissal of
“a claim for relief in any pleading” if that party believes that the pleading fails “to state a
claim upon which relief can be granted.” In its assessment of the motion, a court must
“assume the truth of all well-plead facts and give the plaintiff[] the benefit of all reasonable
inferences therefrom.” Blanco v. Bath Iron Works Corp., 802 F. Supp. 2d 215, 221 (D.
Me. 2011) (quoting Genzyme Corp. v. Fed. Ins. Co., 622 F.3d 62, 68 (1st Cir. 2010)). To
overcome the motion, a plaintiff must establish that the allegations raise a plausible basis
for a fact finder to conclude that the defendant is legally responsible for the claim at issue.
Id.
“Affirmative defenses, such as the statute of limitations, may be raised in a motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6), provided that the facts
establishing the defense [are] clear on the face of the plaintiff’s pleadings.” Trans–Spec
Truck Serv., Inc. v. Caterpillar, Inc., 524 F.3d 315, 320 (1st Cir.2008) (quotation marks
omitted). If the factual allegations indicate that the limitation period has expired, dismissal
is appropriate unless the allegations otherwise include facts upon which an equitable
exception can be predicated. Id.
B.

Failure to State a Claim

MaineHealth argues that Plaintiff has failed to state an actionable claim of
discrimination based on his termination from employment with MMP. MaineHealth

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contends the following allegations, which are the extent of the allegations against
MaineHealth, are insufficient to support a claim:
“MaineHealth rehired [Plaintiff] to work at MMP, but fired him in November
of 2015 for reasons that demonstrate disability discrimination similar to the
allegations set forth above.”
(Motion at 4 (quoting Complaint ¶ 92).)2
In Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 511 – 13 (2002), the Supreme Court
held that employment claims are not subject to a heightened pleading standard. “This
simplified notice pleading standard relies on liberal discovery rules and summary judgment
motions to define disputed facts and issues and to dispose of unmeritorious claims.” Id. at
512. Thus, in order to state a claim, “[t]he complaint need do no more than satisfy the basic
notice pleading requirements of the Civil Rules.” Pagan v. Calderon, 448 F.3d 16, 31 (1st
Cir. 2006). “A complaint satisfies that standard if it contains ‘a short and plain statement
of the claim showing that the pleader is entitled to relief,’ and ‘give[s] the defendant fair
notice of what the plaintiff’s claim is and the grounds upon which it rests.’” Centro Medico
del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 5 (1st Cir. 2005) (alteration in
original) (quoting Fed. R. Civ. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Thus, Plaintiff need only allege “minimal facts as to who did what to whom, when, where,
and why.” Id. (quoting Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d
61, 68 (1st Cir. 2004)).

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Defendants do not challenge at this time the allegation that MMP and MaineHealth are an integrated
enterprise, but it notes that they will contest the issue as the case proceeds. (Motion at 4 n.3.)
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Plaintiff’s complaint can be fairly read to assert that MaineHealth knew of
Plaintiff’s disability, and that MaineHealth terminated, or directed the termination of,
Plaintiff’s employment without taking reasonable measures to accommodate the disability,
including the failure to engage in the required interactive process, and in retaliation for
Plaintiff’s request for accommodation and report of disability discrimination. (Id. ¶¶ 119
– 121.) Plaintiff, therefore, has satisfied “the basic notice pleading requirements of the
Civil Rules.” Pagan, 448 F.3d at 31.
C.

Failure to Exhaust

MaineHealth argues that even if Plaintiff has stated an actionable discrimination or
retaliation claim based on the termination of his employment with MMP, dismissal is
appropriate because Plaintiff failed to exhaust the administrative process regarding the
claim. (Motion at 4 – 5.)
A claimant under the MHRA cannot recover attorney fees or penal, compensatory,
or punitive damages in a civil action without first filing an administrative complaint with
the Maine Human Rights Commission and awaiting certain action by the Commission.
5 M.R.S. § 4622; Gordan v. Cummings, 2000 ME 68, ¶ 11, 756 A.2d 942, 944 – 45. Other
remedies remain available, however, and Plaintiff has requested other remedies in Count
IV.
MaineHealth contends that because Plaintiff asserted his administrative complaint
exclusively against NorDx and failed to include any allegations regarding his employment
with MMP, Plaintiff has not exhausted any claim against MaineHealth. (Motion at 5.)

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Plaintiff maintains that the MMP-related claim arises from the NorDx claim,3 and that
MaineHealth is responsible for both incidents of discrimination.4 (Response at 5.)
For purposes of the pending motion, MaineHealth has not challenged Plaintiff’s
contention that MaineHealth forms an integrated enterprise with NorDx and MMP. On the
current record, therefore, the Court considers MaineHealth to be the employer with respect
to Plaintiff’s employment in NorDx and MMP. Plaintiff thus has alleged that MaineHealth
terminated his employment with MMP while his administrative complaint was pending,
based in whole or in part on the discriminatory animus resulting from Plaintiff’s disability
discrimination claim against MaineHealth/NorDx.
Courts generally conclude that, where the after-acquired claim is within the scope
of the administrative investigation that would reasonably be expected to result from the
underlying charge of discrimination, the administrative complaint will suffice to exhaust
the after-acquired claim. Powers v. Grinnell Corp., 915 F.2d 34, 38 – 39 (1st Cir. 1990)
(collecting cases); Goodrich v. WellPoint, Inc., No. 2:14-cv-00037-JDL, 2015 WL
4647907, at *6 (D. Me. Aug. 5, 2015). Similarly, courts have concluded that the failure to
name a particular defendant in the administrative complaint will not undermine a later civil
claim against that defendant “if there is a clear identity of interest between the named and
unnamed defendants.” Burnett v. Ocean Properties Ltd., No. 2:16-cv-00359-JAW, 2017

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Plaintiff observes that he was fired from MMP while his administrative charge was pending. (Response
at 5.)
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Plaintiff references facts outside the pleadings, in particular, emails demonstrating that a MaineHealth
paralegal and MaineHealth attorney defended the administrative claim. The Court need not consider the
facts for purposes of a motion to dismiss, and I have not considered the alleged facts in this Recommended
Decision.
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WL 1331134, at *7 (D. Me. Apr. 11, 2017). The assessment of identity of interest is multifactored and fact intensive. Id. at *7 – 8.
Here, without the development of a factual record regarding MaineHealth’s
relationship to NorDx or whether MaineHealth and NorDx share an identity of interest,
dismissal based on the alleged failure to exhaust administrative remedies is not warranted.
D.

MHRA claim against NorDx

Civil actions under the MHRA must be filed within two years after the act of
unlawful discrimination, or within 90 days after certain “occurrences,” whichever is later.
5 M.R.S. § 4613(2)(C). Defendants argue that Plaintiff’s claim of unlawful termination
from employment with NorDx is time-barred because Plaintiff did not file his civil action
within two years of his discharge from employment. (Motion at 6 – 7.)
In this case, the relevant periods are either two years from the date of the termination
of Plaintiff’s employment with NorDx on July 16, 2015, or 90 days from the dismissal of
Plaintiff’s administrative complaint on March 16, 2017, 5 M.R.S. § 4622(1). The latest
possible date on which Plaintiff could file a claim for wrongful termination from NorDx
thus would be two years after the date of the termination of his employment: July 16, 2017.
Plaintiff filed this action on October 31, 2017, more than three months after the
expiration of the applicable two-year limitation period. Plaintiff, however, argues his claim
is not barred because he had “two years from the time when the last act of discrimination
occurred,” and that the discriminatory events continued to occur during his employment
with MMP. More specifically, Plaintiff argues that because he has alleged that
MaineHealth engaged in a continuing violation of his rights, the events that occurred while
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he was an MMP employee – which acts occurred within two years of the filing of his
complaint – “anchor” his NorDx-related claim. Citing this Court’s recent decision in
Cutting v. Down E. Orthopedic Assocs., P.A., 278 F. Supp. 3d 485, 500 (D. Me. 2017),
Plaintiff argues alternatively that the issue should not be decided before the development
of a factual record. (Response at 8 – 9.)
First, contrary to Plaintiff’s contention, the MHRA limitation period does not
reference the “last act of discrimination,” but rather requires that an action be filed “not
more than … 2 years after the act of unlawful discrimination complained of ….” 5 M.R.S.
§ 4613(2)(C). Additionally, Plaintiff’s continuing violation argument is unavailing.
Plaintiff has cited no persuasive authority to support his contention that the
continuing violation theory applies to MHRA claims, or that it would apply in this case.
Plaintiff’s reliance on Cutting to suggest the doctrine is applicable or, alternatively, to urge
the Court to permit the development of a factual record before addressing the issue is
unconvincing.
In Cutting, the defendant surgeon performed surgery to repair the plaintiff’s rotator
cuff, but upon discovering a full tear he did not perform the repair operation because, as
alleged, he believed the plaintiff would reinjure her shoulder as a consequence of her
disability. Id. at 490. The plaintiff alleged that the defendant surgeon discriminated against
her based on her disability, in violation of the MHRA. Although the surgery occurred more
than two years before the plaintiff filed her complaint, the plaintiff argued that she only
learned of the grounds for a discrimination claim when another provider informed her that
a shoulder immobilizer could be used following surgery to prevent re-injury. Id.
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In Cutting, the plaintiff argued the statute of limitations was tolled due to the
discovery rule and the continuing violation doctrine. The Court determined that before it
resolved the plaintiff’s argument, it would prefer a fully developed factual record. Id. at
500. Given that the case involved allegations of medical negligence, a claim that was
potentially subject to the discovery rule, the Court was understandably reluctant to decide
without a factual record whether the statute of limitations was tolled.
In this case, the discovery rule has no potential applicability. In addition, as the
Court observed in Cutting, the Maine Supreme Judicial Court (Law Court) has not yet
recognized the continuing violation rule as a method of tolling the limitation clock for
claims advanced under the MHRA. Id. (citing McKinnon v. Honeywell Intern. Inc., 2009
ME 69, ¶ 14, 977 A.2d 420, 425).
Finally, even if the Law Court adopted the doctrine,5 the rule would likely be no
broader than the version of the rule applied by federal courts in the context of federal
claims. The continuing violation rule, as applied in the First Circuit, does not alter the
basic understanding that claims that arise from discrete acts of employment discrimination,
like termination from employment, accrue on the date of the discrete act. As explained by
the First Circuit:
In narrow circumstances, typically including Title VII and other
discrimination claims, the continuing violation doctrine permits a plaintiff to
recover for injuries occurring outside of the limitations period. See Pérez–
Sánchez v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008). As long as a
related act falls within the limitations period, the doctrine allows a lawsuit to
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When federal courts address questions of state law that have not yet been determined in the state courts,
the “task is to ascertain the rule the state court would most likely follow under the circumstances.” Blinzler
v. Marriott Int’l Inc., 81 F.3d 1148, 1151 (1st Cir. 1996).
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be delayed in cases—such as hostile work environment claims—in which a
course of “repeated conduct” is necessary before “a series of wrongful acts
blossoms into an injury on which suit can be brought.” Ayala v. Shinseki,
780 F.3d 52, 57 (1st Cir. 2015) (internal quotation marks omitted). The
doctrine does not apply, however, to allow the late filing of a claim based on
a discrete discriminatory act that occurs on a specific day, and thus does not
permit a plaintiff “to avoid filing suit so long as some person continues to
violate his rights,” Pérez–Sánchez, 531 F.3d at 107; see also Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). In that sense, the
doctrine is not truly “about a continuing [violation], but about a cumulative
violation.” Limestone Dev. Corp. v. Village of Lemont, Ill., 520 F.3d 797,
801 (7th Cir. 2008).
Quality Cleaning Prod. R.C., Inc. v. SCA Tissue N. Am., LLC, 794 F.3d 200, 205 (1st Cir.
2015).
Plaintiff’s NorDx-related MHRA claim would be based on his employment with
NorDx, which ended with the termination of his employment. The termination of his
employment is outside the two-year limitation period. Accordingly, dismissal of Plaintiff’s
MHRA claim based on Plaintiff’s employment with NorDx is warranted.
CONCLUSION
Based on the foregoing analysis, I recommend the Court deny in part and grant in
part Defendants’ Partial Motion to Dismiss Plaintiff’s Complaint.

(ECF No. 9.)

Specifically, I recommend the Court dismiss Plaintiff’s MHRA claim based on Plaintiff’s
employment with NorDx. I recommend the Court otherwise deny the motion.
NOTICE
A party may file objections to those specified portions of a magistrate
judge's report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, and request for oral
argument before the district judge, if any is sought, within fourteen (14) days
of being served with a copy thereof. A responsive memorandum and any
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request for oral argument before the district judge shall be filed within
fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court's order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 17th day of April, 2018.

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