Opinion
CV-23-165
11-30-2023
DOUGLAS CURTIS, Plaintiff, v. STATE OF MAINE, DEPARTMENT OF CORRECTIONS, Defendant.
Plaintiff-Guy Loranger, Esq. Defendant-Kelly Morrell, AAG
Plaintiff-Guy Loranger, Esq.
Defendant-Kelly Morrell, AAG
ORDER ON DEFENDANT'S MOTION TO DISMISS
Deborah P. Cashman Justice, Maine Superior Court
Before the Court is Defendant State of Maine, Department of Corrections's ("the Department") Motion to Dismiss. The Department seeks to dismiss all seven counts of Plaintiff Douglas Curtis's ("Curtis") complaint. The Department challenges Counts I-IV under M.R. Civ. P 12(b)(1) on jurisdictional grounds, arguing that Curtis lacks standing to bring these counts. The Department challenges all counts under M.R. Civ. P. 12(b)(6) for failure to state a claim on which relief can be granted. For the reasons discussed below, the Department's motion is GRANTED in part and DENIED in part.
I. Facts
The following facts are recited from the complaint and are taken as true for purposes of this motion.
Curtis began employment with the Department in July of 2013 at one of the Department's correctional facilities located in Windham, Maine. (Compl. ¶¶ 2-3, 5.) In March of 2018, Curtis transferred to the day shift in the Intake Unit, processing intakes Monday through Friday. (Compl. ¶ 6.) Upon transfer to Intake, Curtis was exposed to pervasive offensive conversations between staff members, including supervisors who encouraged the offensive behavior. (Compl. ¶ 7.) The conversations were sexual, racist, homophobic, "blasphemous," and threatening in nature, and the subjects of these conversations included inmates and other employees. (Compl. ¶¶ 9-10.) Captain Gary Beaulieu sensed that Curtis was uncomfortable with the environment in Intake and spoke to Curtis about the need to not have thin skin in Intake. (Compl. ¶ 11.)
The hostile environment continued into 2019. (Compl. ¶ 12.) The Court recounts the following alleged incidents as representative examples of the incidents Curtis alleges occurred in 2019: on July 4th, although the supervisor knew of Curtis's religious beliefs and that Curtis does not celebrate holidays, the supervisor tried pushing him to partake in a Fourth of July party; on July 15th, staff showed Curtis a pornographic photo and laughed at him because they knew he did not like such behavior; on July 22nd, Curtis heard supervisors and staff joke about "blowjobs," which caused Curtis to vomit in the restroom; on August 1st, Curtis heard staff make racist comments joking about testicles; on August 8th, a supervisor asked Curtis, "were you checking out the sexy scans of the girls on the scanner today?;" on August 20th, Curtis heard coworkers talking about using baby oil to rape someone. (Compl. ¶¶ 15, 18, 20, 22, 24-25.) On October 30th, Curtis scanned a female intake and observed something suspicious which he reported to a supervisor. (Compl. ¶ 30.) The supervisor commented to a female staff member, "you like sticking your hand way up there while strip searching and reaching around," in response to which Curtis quickly left the room. (Id.) The supervisor commented, "oh no, I embarrassed Curtis again." (Id.) Curtis alleges other incidents of remarks in the workplace that are sexual, homophobic, violent, racist, and offensive in nature that took place during 2019. (Compl. ¶¶ 13-14, 16-17, 19, 21, 23, 26-29, 33-24.) In November of 2019, Curtis met with Warden Scott Landry to report on the hostile work environment, the impact upon his health, and to request accommodation for a transfer to a safer position. (Compl, ¶ 31.) Curtis is not aware of the Warden taking any action in response to this report. (Compl. ¶ 32.)
The workplace environment remained the same during 2020. (Compl. ¶ 35.) In January, staff made daily homophobic, racist, and sexual comments. (Compl. ¶ 36.) On March 5th, Curtis heard staff laughing about murder and rape. (Compl. ¶ 37.) In June, Curtis heard the staff making racist comments about George Floyd, including the comments, "these people should be happy they were set free," and, "it was a mistake setting them free." (Compl. ¶ 38.) In September, staff made comments that they did not trust Curtis because he does not swear. (Compl. ¶ 39.) By November of 2020, residents were aware of staff and supervisors attempting to get Curtis to engage in "perverted behavior;" in response, one resident in Intake said, "leave Curtis alone with that noise." (Compl. ¶ 40.) In December, Curtis heard staff and supervisors (complaining about gay and trans people using "extremely offensive language." (Compl. ¶ 42.)
The workplace environment continued as alleged into 2021. (Compl. ¶ 43.) In March, Curtis filed a worker's compensation claim for "PTSD that was caused by the toxic work environment," (Compl. ¶ 44.) Curtis alleges that sexual, homophobic, anti-Semitic, transphobic, racist, ableist, offensive, and violent comments continued to be made in the workplace throughout 2021. (See Compl. ¶¶ 45, 47, 52-53, 55-57, 59-63, 66-68.) On one occasion, Curtis observed a noose hanging from the ceiling of the break room. (Compl. ¶ 71.)
Sometime in the Spring of 2021, Jodie Craig ("Craig") from Human Resources ("HR") contacted Curtis, but he was reluctant to speak to Craig for fear of retaliation and the Warden's failure to respond to Curtis's prior complaint. (Compl. ¶ 46.) By June, Curtis frequently vomited at work and staff continued to poke fun at Curtis for "freaking out at their stories." (Compl, ¶ 48.) In July, Curtis worked up the courage to contact Craig, but Craig would not help Curtis unless he gave her names. (Compl. ¶ 49.) Curtis explained to Craig that he feared retaliation. (Id.) Curtis requested that the Department contact supervisors and the administration to enforce zero tolerance for "pervasive hostile conversations." (Compl. ¶ 50.) Craig asked Curtis to submit an anonymous letter identifying names and incidents while pretending to be a witness, but Curtis refused to lie in any way. (Compl. 51.) At some point after Curtis spoke with Craig, the words "Rat City" were sketched into the window next to Curtis's workstation, which he reported to Sergeant LeClair. (Compl. ¶ 58.)
Curtis alleges the following incidents directed at him during 2021: a staff member made a comment about the game cornhole in front of Sergeant LeClair saying, "bend over Curtis and let's play the real cornhole," Sergeant LeClair responded, "people playing cornhole throw sacks because they do not like holding balls;" in September, a staff member told another staff member not to get Curtis pregnant; also in September, Sergeant Dudley began to use "offensive language" around and toward Curtis; on November 11th, Sergeant Dudley told Curtis to "get off Pornhub." (Compl. ¶¶ 54, 63, 68.) Curtis sent an email to HR on November 21 to report Sergeant Dudley's comment. (Compl. ¶ 69.) In response, the Warden sent an email to staff instructing them to be professional; Curtis is not aware of the Department taking any further remedial action. (Id.)
In September of 2021, Curtis filed a complaint with the Maine Human Rights Commission (MHRC) alleging hostile work environment based upon sex, national origin, sexual orientation, disability, ancestry, and retaliation. (Compl. ¶ 64.) On November 19, 2021, Curtis met with Scott Landry ("Landry") of HR regarding his worker's compensation claim. (Compl. ¶ 70.) After this meeting, Unit Manager Bill Segler interviewed Curtis about recent incidents with CO Chris Page, Sergeant LeClair, and CO Jessica Szeyley. (Compl. ¶ 72.) Craig subsequently called Curtis to inquire about him getting sick due to the "hostile work environment." (Compl. ¶ 73.) Curtis reported to Craig about defecating in his pants at work due to the environment. (Id.) Craig asked Curtis if he was still seeing a therapist and suggested he get his therapist's opinion on what Curtis should do to change his situation. (Id.) Craig also stated that she could not guarantee that coworkers would stop their offensive behavior or that Curtis's name would not get back to the people he was reporting. (Id.) On November 29th, the Department filed its response to Curtis's MHRC complaint denying any wrongdoing. (Compl. ¶ 74.)
In early 2022, Curtis corresponded with HR to request family medical leave due to his physical reaction to the workplace culture. (Compl. ¶ 78.) Craig also offered to Curtis the option of completing "ADA paperwork" if Curtis felt he could no longer do his job to explore reassignment to another area of state employment. (Compl. ¶ 79.) Curtis continued to report to Craig about times when the stress of his job caused him to defecate himself in bed and on the way to work. (Compl. ¶ 80-81.) Curtis emailed Craig to express his feeling that he was being targeted because of his cooperation with workplace investigations. (Compl. ¶ 83-84.)
In the Spring of 2022, Curtis accepted a new position at the prison in the activities office, but he did not feel that the change in position changed much in his work environment. (Compl. ¶ 84-85.) On April 19, 2022, Curtis sent an email to Craig and Darlene Sage ("Sage") reporting vomiting on his way in to work, "defecating intermittently at work in [his] pants because of [his] PTSD caused by the toxic work culture and the fact that MCC allowed [his] name to be leaked out the [sic] staff members letting them know [he had] been cooperating with investigations." (Compl. ¶ 88.) In the same email he expressed that he thought his life was at risk. (Id.) Craig responded to let Curtis know that "ADA is still an option." (Id.)
On April 21, 2022, Curtis emailed Craig and Sage to let them know that he had been taken off his new post in activities to work in intake. (Compl. ¶ 89.) Craig responded that "(t]he ability to work in posts as needed has long been regarded as an essential function of the CO position .... We cannot . . . eliminate essential functions as a reasonable accommodation." (Id.) Craig again encouraged Curtis to complete the ADA paperwork to explore a leave of absence or reassignment and to use family medical leave for the hours he could not work. (Id.) In April, Curtis "was forced to apply for disability retirement due to the hostile work environment and retaliation causing him to experience serious medical conditions." (Compl. ¶ 91.)
On April 27, 2022, Curtis entered on page sixty-five of the daily logbook that he "passed out" at work due to panic attacks. (Compl. ¶ 86.) Supervisors are required to review and sign the logbook daily. (Compl. ¶ 87.) Curtis was warned to stop making such entries because "the logbook is a legal document." (Id.) On May 3rd, 2022, Curtis documented in page 67 of the logbook that he vomited due to the ongoing hostile work environment. (Compl. ¶ 93.) On September 8th, 2022, Curtis entered on the logbook that Officer Cleary called him on the phone asking about a resident before he goes "fucking off somewhere." (Compl. ¶ 107.) On September 20th, Christopher Arbour, Acting Deputy Warden, sent an email to Curtis following up on a meeting between the two about proper logbook entries. (Compl. ¶ 108.) The email reminded Curtis that the proper way to report staff misconduct was by making a report to supervisory staff. (Id.)
Throughout 2022, Curtis alleges that racist, sexual, ableist, homophobic, abusive, and offensive remarks continued to be made in his presence at work. (Compl. ¶¶ 76-77, 90, 98, 109-113, 115-117.) Curtis reported some of these incidents to HR and to supervisors. (Compl. ¶¶ 84-85, 92, 94, 102, 104-06, 110, 113, 116-17.) On June 2nd, 2022, Facilities Warden Cantillo and Michelle Senence from HR met with Curtis. (Compl. ¶ 97.) During this conversation, Warden Cantillo spoke about the hostile work environment and stated, "people are only human." (Id.)
Curtis alleges that during 2022, other staff members called out "snitch" as Curtis walked through the facility and supervisors ignored the incidents. (Compl. ¶ 118.) In December of 2022, Curtis heard someone say, "it smells like a snitch shit their pants" in the parking lot. (Compl. ¶ 119.) Also in December, Curtis submitted his resignation to Michelle Senence, alleging that his resignation amounts to constructive discharge. (Compl. ¶¶ 120-21.) Within days of submitting his notice, staff severely increased calling out the words "snitch" and "shitty pants." (Compl. ¶ 122.) Curtis experienced many hang ups on the phone and could hear staff yelling "snitch" from all areas up until his last day. (Compl. ¶ 125.)
II. Standard of Review
The Department moves under M.R. Civ. P. 12(b)(1) and 12(b)(6) to dismiss Curtis's seven count complaint. The 12(b)(1) motion applies only to counts I-IV.
A motion to dismiss pursuant to M.R. Civ. P. 12(b)(1) challenges the court's subject matter jurisdiction over the matter. M.R. Civ. P. 12(b)(1). When deciding on such a motion, courts make no favorable inferences in favor of the plaintiff. Tomer v. Me. Hum. Rts. Comm'n, 2008 ME 190, ¶ 9, 962 A.2d 335.
On a motion to dismiss pursuant to M.R. Civ. P. 12(b)(6), the court assumes all facts alleged in the complaint are true, and examines the complaint "'in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory.'" Oakes v. Town of Richmond, 2023 ME 65, ¶ 15, ___ A.3d___(quoting Moody v. State Liquor & Lottery Comm'n, 2004 ME 20, ¶ 7, 843 A.2d 43). "'A dismissal should only occur when it appears beyond doubt that a plaintiff is entitled to no relief under any set of facts that [they] might prove in support of [their] claim.'" Id. (quoting Moody, 2004 ME 20, ¶ 7, 843 A.2d 43). "Because Maine is a notice-pleading jurisdiction, the level of scrutiny used to assess the sufficiency of a complaint is 'forgiving.'" Id. ¶ 16 (quoting Howe v. MMG Ins. Co., 2014 ME 78, ¶ 9, 95 A.3d 79).
III. Discussion
A. Standing
The Department first argues that Counts I-IV must be dismissed for lack of subject matter jurisdiction because Curtis lacks statutory standing under the Maine Human Rights Act (MHRA). Counts I-IV allege an unlawful hostile work environment based upon gender, sexual orientation, national origin, and race, respectively. The Department argues that Curtis has not alleged that he is an "aggrieved person" that is permitted to file suit under the MHRA. Specifically, the Department argues that Curtis has not stated his gender, race, national origin/ancestry, or sexual orientation, nor has he alleged to have been subject to discrimination based on his protected class status or relationship or association with a member of a protected class, or on the basis of his perceived protected class status.
The MHRA authorizes an "aggrieved person" to file a civil action in the Superior Court against the party that committed unlawful discrimination, provided the suit is initiated within the Act's time limits. 5 M.R.S. § 4621. The Act provides that "'[aggrieved person' includes any person who claims to have been subject to unlawful discrimination on the basis of protected class status, including discrimination based on the person's known relationship or association with a member of a protected class and discrimination on the basis of perceived protected class status." Id. § 4553(1-D). The Act further provides that "'[d]iscriminate' includes, without limitation, segregate, separate, or subject to harassment." Id. § 4553(2).
Curtis argues that the definition of aggrieved person does not, by its plain language, require the person to have been subject to unlawful discrimination on the basis of the aggrieved person's own protected class status. This interpretation has some appeal because the statutory definition says only "based on protected class status" rather than "based on the person's protected class status." See id. § 4553(1-D). However, read in context with the rest of the definition, it is clear that an aggrieved person must be asserting discrimination based on their own protected class status. The definition of "aggrieved person" goes on to state that unlawful discrimination based on protected class status includes "discrimination based on the person's known relationship or association with a member of a protected class . ..." Id., (emphasis added). Read in context, which this Court must do, it is clear that the Legislature intended to confer standing to only those aggrieved by discrimination on the basis of their own (or their own perceived) protected class status or known association with a member of a protected class. See id. § 4553(1-D); Sunshine v. Brett, 2014 ME 146, ¶ 13, 106 A.3d 1123.
Reliance on federal "zone of interest" case law is not appropriate here, because the MHRA defines "aggrieved person," while Title VII does not. Compare 5 M.R.S. § 4553(1-D) (defining "aggrieved person" for purposes of the MHRA), with 42 U.S.C. § 2000e (failing to define "person aggrieved" for purposes of Title VII); see also Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 177-178 (2011) (developing the zone of interest test in the absence of a statutory definition for "person aggrieved").
The plaintiff has the burden of establishing standing. Black v. Bureau of Parks &Lands, 2022 ME 58, ¶ 26, 288 A.3d 346. In his complaint, Curtis has not alleged that he belongs to any protected classes due to gender, sexual orientation, national origin, or race. Further, Curtis has not alleged that any of ! i the offensive conduct he experienced was directed at him because of his gender, sexual orientation, national origin, or race. Therefore, Curtis has not met his burden to establish statutory standing because he has not made allegations that, if proven, would qualify him to bring suit under the MHRA as an "aggrieved person." As such, this Court must dismiss Counts I-IV of Curtis's complaint. Dismissal is without prejudice.
In his opposition to the motion to dismiss, Curtis represents that he is a heterosexual male Caucasian of Irish ancestry and represents that a motion to amend the complaint has been filed to allege these facts. However, the Court is unaware of any such motion ever having been filed.
B. Count V
The Department argues that Curtis's claim for disability discrimination, Count V, should be dismissed because Curtis has not alleged that he was exposed to disadvantageous terms or conditions of employment to which other employees without disabilities were not exposed, he does not allege that the conduct was about his disability or directed at him because of his disability, and he does not allege facts to suggest that any of the staff members or supervisors who engaged in the conduct were aware of his disability.
The MHRA prohibits employment discrimination against a qualified individual on the basis of a physical or mental disability. 5 M.R.S. § 4572(1)(A); Doyle v. Dep't of Hum. Servs., 2003 ME 61, ¶ 14, 824 A.2d 48. A physical or mental disability is defined as "[a] physical or mental impairment that . . . [substantially limits one or more of a person's major life activities; [or] . . . [significantly impairs physical or mental health." 5 M.R.S. § 4553-A(1)(A). Prohibited discrimination on the basis of disability includes "discharging] an employee or discriminating] with respect to hire, tenure, promotion, transfer, compensation, terms, conditions or privileges of employment or any other matter directly or indirectly related to employment." Id. § 4572(1)(A). The elements of a claim of disability discrimination are "that (1) he has a disability; (2) he is otherwise qualified, with or without reasonable accommodations, to perform the essential functions of his job; and (3) his employer adversely treated him based in whole or in part on his disability." Daniels v. Narraguagus Bay Health Care Facility, 2012 ME 80, ¶ 14, 45 A.3d 722.
Count V alleges that "Curtis was diagnosed with major depressive disorders including PTSD, depression, and anxiety;" that the Department had notice of the disabilities; and that the Department took adverse actions against Curtis due to his disabilities, including failing to address the hostile work environment and engaging in conduct which exacerbated the disabilities. (Compl, ¶¶ 145, 148-49.) Elsewhere in the complaint, Curtis alleges that he suffers from PTSD which caused emotional and physical symptoms such as panic attacks and involuntary defecation. (See Compl. ¶¶ 44, 80-81, 83-86, 88, 91, 94.) These allegations satisfy the first element, that Curtis has a disability. Curtis alleges that he worked for the Department for almost five years, from July of 2013 to March of 2018, without incident and that his issues began when he transferred to working the day shift. (See Compl. ¶¶ 5-7.) In the light most favorable to Curtis, these allegations could satisfy the second element, that he was qualified with or without accommodation to perform the essential functions of his job.
As to the third element, Curtis alleges that at least the following individuals had notice of his disability; Warden Scott Landry, Craig, Unit Manager Bill Segler, Captain Beaulieu, Sage, Facilities Warden Cantillo, and Michelle Senence. (Compl. ¶¶ 31, 49, 83, 85, 97.) Curtis alleges that he met with Warden Scott Landry about the impact the work environment had on his health and to request accommodation for a transfer to a safer position, but no action was taken in response. (Compl. ¶¶ 31-32.) Curtis alleges that despite making numerous reports about the work environment, no meaningful action was taken to address the highly inappropriate behaviors in the workplace that were causing him distress. (See Compl. ¶¶ 64-65, 68-69, 85, 94, 97, 100-01, 113-15, 118, 124.)
Taking the complaint in the light most favorable to Curtis, the overwhelming conclusion to be drawn is that the higher-ups in the Department who had notice of Curtis's disability did not take his concerns seriously and failed to address workplace culture and harassment in any meaningful way. Some of them engaged in behaviors that they knew or had reason to know would cause Curtis distress, which may later prove to be adverse treatment because of his disability. (See Compl. 100-01.) At this early stage, the Court is unable to say that it is beyond doubt that Curtis is entitled to no relief under any set of facts he might prove in support of his disability discrimination claim. Oakes, 2023 ME 65, ¶ 15,___A.3d___(quoting Moody, 2004 ME 20, ¶ 7, 843 A.2d 43). The Department's motion to dismiss Count V is DENIED. See id.
C. Retaliation
The Department moves to dismiss Counts VI and VII of the complaint, for unlawful retaliation in violation of the MHRA and the Whistleblower Protection Act (WPA), respectively, because it argues that Curtis has not alleged facts of sufficiently severe or pervasive conduct to constitute a hostile work environment. Therefore, the Department argues that Curtis has not alleged that he suffered an adverse employment action.
A prima facie case of retaliation under the WPA has three elements: (1) the employee engaged in activity protected by the statute; (2) the employee suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action. Johnson v. York Hosp., 2019 ME 176, ¶ 23, 222 A,3d 624 (quoting Sullivan v. St. Joseph's Rehab. & Residence, 2016 ME 107, ¶ 14, 143 A.3d 1283). At the summary judgment stage, "'the employee's burden of proving a prima facie case of retaliation is relatively light, and requires only a small showing that is not onerous and is easily made.'" Id. (quoting Brady v. Cumberland Cnty., 2015 ME' 143, ¶ 14, 126 A.3d 1145). Here, where the posture is on a motion to dismiss, the employee's burden is even lighter. The prima facie case of retaliation under the MHRA and the Court's analysis follow the same analytical structure as that used for claims of retaliation under the WPA. See Doyle, 2003 ME 61, ¶ 20, 824 A.2d 48 (establishing the three-element prima facie case of retaliation under the MHRA by using the same prima facie elements from Bard v. Bath Iron Works Corp., 590 A.2d 152, 154 (Me. 1991), a WPA retaliation case).
In its motion to dismiss, the Department challenges only the second element, whether Curtis has alleged he suffered an adverse employment action. Curtis alleges that, as retaliation for his reports on the work environment, he suffered a retaliatory hostile work environment which resulted in his constructive discharge. The Department concedes that a retaliatory hostile work environment is an adverse employment action for purposes of the MHRA retaliation claim. (Mot. Dismiss 12); see 5 M.R.S. § 4572(1)(E). The Department argues that a retaliatory hostile work environment is not an adverse employment action for purposes of the WPA claim and that Curtis has not alleged facts of conduct that is sufficiently severe or pervasive to establish a hostile work environment for both the MHRA and WPA claims.
The WPA provides that "no employer may discharge, threaten or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location or privileges of employment because [the employee engaged in protected activity]." 26 M.R.S. § 833(1). The Department cites to language in a Law Court WPA case that an adverse employment action must involve depriving the employee of "'something of consequence"' or withholding "'an accouterment of the employment relationship"' to argue that a retaliatory hostile working environment is not an adverse employment action. (Mot. Dismiss. 13); LePage v. Bath Iron Works Corp., 2006 ME 130, ¶ 20, 909 A.2d 629 (quoting Blackie v. State of Maine, 75 F.3d 716, 725 (1st Cir. 1996)).
Hostile work environment claims, however, are based on an interpretation of "terms, conditions, ... or privileges of employment." See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63, 66-67 (1986) (interpreting the same language in Title VII). A hostile work environment is actionable when harassment is sufficiently severe or pervasive so as to alter the victim's terms, conditions, or privileges of employment and creates an abusive work environment. See id. (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir, 1982)); see also Bowen v. Dep'tof Hum. Servs., 606 A,2d 1051, 1054 (Me. 1992) (quoting Meritor). Because the WPA prohibits discriminating against employees in the terms, conditions, or privileges of employment, and because the elements and analysis for WPA claims and MHRA retaliation claims are the same, hostile work environments are adverse employment actions for purposes of the WPA. See 26 M.R.S. § 833(1); Doyle, 2003 ME 61, ¶ 20, 824 A.2d 48 (establishing the three-element prima facie case of retaliation under the MHRA by using the same prima facie elements from Bard, 590 A.2d at 154, a WPA retaliation case). When an abusive working environment alters the terms, conditions, or privileges of employment, an employee has been deprived of "'something of consequence"' or "'an accouterment of the employment relationship.'" LePage, 2006 ME 130, ¶ 20, 909 A,2d 629 (quoting Blackie, 75 F.3d at 725); see also Meritor, 477 U.S. at 67.
To determine whether a work environment is sufficiently hostile, Maine courts look to "'all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Johnson, 2019 ME 176, ¶ 18, 222 A.3d 624 (quoting Doyle, 2003 ME 61, ¶ 23, 824 A.2d 48)). In support of his retaliation claims, Curtis alleges at least the following incidents of harassment or retaliation: the words "Rat City" were sketched into the window next to Curtis's workstation; multiple reprimands; that his reports caused him to become a target; staff members called out "snitch" as Curtis walked through the facility and supervisors ignored those incidents; someone in the parking lot said, "it smells like a snitch shit their pants;" a severe increase of staff calling out "snitch" and "shitty pants" after Curtis submitted his notice; and multiple hangups on the phone, (Compl. ¶¶ 58, 83, 87-88, 92, 99, 108, 118-19, 122, 125.) The complaint is rife with allegations that the retaliatory conduct deeply impacted Curtis's health and interfered with his ability to do his job as he often had to go to the restroom sick and sometimes had to family medical leave.
Taking the complaint in the light most favorable to Curtis, it is not beyond doubt that Curtis could not prove facts to support a claim of a retaliatory hostile work environment. The motion to dismiss Counts VI and VII is DENIED.
IV. ORDER
For the reasons discussed above, the entry is:
1. Counts MV are DIMISSED WITHOUT PREJUDICE.
2. Defendant's Motion to Dismiss Counts V-VII is DENIED.
The Clerk is requested to enter this Order on the docket for this case by incorporating it by reference, M.R. Civ. P. 79(a).