Caldwell v. Federal Express Corp.

• Decision Date: 29 November 1995
• Docket Number: Civ. No. 95-CV-67-B.
• Citation: Caldwell v. Federal Express Corp., 908 F.Supp. 29 (D. Me. 1995)
• Parties: Diana CALDWELL and John Caldwell, Plaintiffs, v. FEDERAL EXPRESS CORPORATION, Thomas Mulhall and William Bruschi, Defendants.
• Court: U.S. District Court — District of Maine

908 F. Supp. 29

Diana CALDWELL and John Caldwell, Plaintiffs, v. FEDERAL EXPRESS CORPORATION, Thomas Mulhall and William Bruschi, Defendants.

Civ. No. 95-CV-67-B.

United States District Court, D. Maine.

November 29, 1995.

Michael L. Rair, Bangor, Maine, for Plaintiffs.

John W. McCarthy, Rudman & Winchell, Bangor, Maine, Colby S. Morgan Jr., Fedeal Express Corporation, Litigation Legal Department, Memphis, TN, Terrill Elise Pierce, Kaplan & Begy, Chicago, IL, for Defendants.

ORDER AND MEMORANDUM OF DECISION

BRODY, District Judge.

Plaintiff, Diana Caldwell worked intermittently at the Bangor station of the Federal Express Corporation ("Federal Express") between November, 1989 and December, 1992. She brings this action against Federal Express and its employees, William Bruschi, and Thomas Mulhall for violation of her state and federal rights.

Caldwell filed an eleven count complaint, alleging violation of her federal civil and employment rights under 42 U.S.C. § 2000(e) (Count I), state employment rights under 5 M.R.S.A. § 4572 (Count II), state constitutional rights under 5 M.R.S.A. § 4682 (Count III), the Maine Whistleblower Act, 26 M.R.S.A. §§ 831-840 (Count VI), and her federal and state age discrimination rights under 29 U.S.C. §§ 621-634, and 5 M.R.S.A. §§ 4571-4575, respectively (Count VII). Caldwell also asserts common law claims for intentional infliction of emotional distress (Count IV), negligent infliction of emotional distress (Count V), breach of implied contract of good faith and fair dealing (Count VIII), libel and slander (Count IX), and negligent failure to supervise employees (Count X). Caldwell's husband, John Caldwell, brings a derivative claim against Federal Express for loss of consortium (Count XI).¹

Defendants move to dismiss Plaintiff's counts I, II, III, IV, V, VII, VIII, IX, X and XI for failure to state claims upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). The Court grants this motion in part, and denies it in part.

I. Motion to Dismiss

A motion to dismiss is designed to test the legal sufficiency of the complaint, and thus does not require the Court to examine the evidence at issue. Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). The Court accepts all well-pleaded facts as true, "indulging every reasonable inference helpful to the plaintiff's cause." Garita Hotel Ltd. Partnership v. Ponce Federal Bank, F.S.B., 958 F.2d 15, 17 (1st Cir.1992). The plaintiff, however, must "set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.1988). The Court need not accept "bald assertions" or "unsubstantiated conclusions." Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir.1990). "If the facts narrated by the plaintiff `do not at least outline or adumbrate' a viable claim, the complaint cannot pass Rule 12(b)(6) muster." Gooley, 851 F.2d at 515 (quoting Sutliff, Inc., v. Donovan Companies, Inc., 727 F.2d 648, 654 (7th Cir.1984)).

II. Background

Plaintiff, Diana Caldwell worked on a temporary basis as a courier at the Bangor station of Federal Express at various times between November 14, 1989 and December 24, 1992. She expressed interest in more permanent employment to her direct supervisor William V. Bruschi, the Bangor station manager. In response, Caldwell claims that Bruschi promised her a permanent part-time position when one became available. However when such a position did become available, Caldwell's application was denied, despite her seniority and Bruschi's assurances.

Caldwell claims that Federal Express rejected her application because of her age and gender, as well as in retaliation for the charges of sexual harassment she had previously filed with the Maine Human Rights Commission ("MHRC"), and the Equal Employment Opportunity Commission ("EEOC"). Caldwell filed these claims against Thomas Mulhall, the assistant manager of the Bangor station. Caldwell claims that Mulhall sexually harassed her both during and after her employment at Federal Express. Caldwell reported this behavior to Bruschi, but no action was taken. Both the MHRC and the EEOC dismissed Caldwell's sexual harassment, gender discrimination and age discrimination charges. Both agencies notified Caldwell of her right to pursue these matters in court.

Diana Caldwell was married to John Caldwell at the time her application to Federal Express was denied.

III. Discussion

Defendants move for dismissal on various grounds. The Court denies the Defendants' Motion to Dismiss as they relate to Federal Express, except for Counts III (5 M.R.S.A. § 4682), VIII (breach of good faith and fair dealing), and Count X (negligent failure to supervise employees). Plaintiff's common law tort claims, Counts IV, V, IX and XI are dismissed as they relate to the alleged sexual harassment occurring while the Plaintiff was employed at Federal Express, or as they related to her employment discrimination claims under Title VII or the Maine Human Rights Act ("MHRA"). These torts claims remain in the case, however to the extent that they flow from other injuries, such as the sexual harassment allegedly occurring outside the scope of Caldwell's employment. The Court grants Defendant Mulhall's Motion to Dismiss Counts I, II and VII (and dismisses Bruschi from liability under these claims as well).

A. Constitutional and Statutory Rights

In Count III of the Amended Complaint, Plaintiff claims a violation of her constitutional rights, and seeks relief under 5 M.R.S.A. § 4682.² Section 4682 establishes a civil cause of action for any person whose state or federal constitutional or statutory rights have been intentionally interfered with through actual or threatened violence, damage or destruction of property, or trespass. 5 M.R.S.A. § 4682; see Grenier v. Kennebec County, Me., 748 F.Supp. 908, 913 (D.Me. 1990).

Defendants argue that Plaintiff fails to state a claim under § 4682 because Plaintiff's complaint does not plead allegations of physical force or violence, or threat thereof. 5 M.R.S.A. § 4682. While the statute does not explicitly require the use of physical force, a plaintiff must at a minimum identify a threat of force or violence. Plaintiff fails to do so. The Court grants Defendants' Motion to Dismiss Count III.

B. Common Law Tort Claims

Defendant argues that the Plaintiff's common law tort claims are either, (1) barred by the exclusivity provisions of the Maine Workers' Compensation Act, or (2) preempted by the MHRA, or Title VII.

1. Workers' Compensation Act

Defendants contend that Plaintiff's alleged injuries occurred at work and are thus barred by the exclusivity provision of the Workers' Compensation Act. This argument ignores key facts at issue, and oversimplifies Plaintiff's claims.

The Workers' Compensation Act serves the dual purpose of ensuring injured workers a means of recovery, and providing employers with "absolute but limited and determinate liability." Beverage v. Cumberland Farms Northern, Inc., 502 A.2d 486, 489 (Me.1985) (quoting McKellar v. Clark Equipment Co., 472 A.2d 411, 414 (Me.1984)). The exclusivity provision of the Act bars employees from bringing civil actions against insured employers for work-related injuries. 39-A M.R.S.A. § 104; see also Li v. C.N. Brown Co., 645 A.2d 606, 607-608 (Me.1994).³ Under the Act an employer is liable if the worker, "1) suffers a personal injury, 2) that arises out of and 3) in the course of employment." Knox v. Combined Ins. Co. of America, 542 A.2d 363, 366 (Me.1988). Injuries not related to work, that "are a consequence of life in general," are not covered by workers' compensation. Id. (quoting Comeau v. Maine Coastal Services, 449 A.2d 362, 366 (Me.1982)).

Plaintiff's common law tort claims stem from various distinct incidents and do not all fall clearly within the purview of the Workers' Compensation Act's exclusivity provision.⁴ Caldwell's tort claims specifically relate to the alleged employment discrimination and sexual harassment. The Court further distinguishes between these claims by reviewing the sexual harassment allegations during Caldwell's employment separately from those occurring after her tenure at Federal Express.

The Court first addresses the intersection between Caldwell's tort claims arising out of the alleged employment discrimination, and the Workers' Compensation Act. As with all workers' compensation claims, the Court must distinguish between those torts that "arose out of" and "in the course of plaintiff's employment" and those that do not. See 39 M.R.S.A. § 51; Comeau, 449 A.2d at 365-67. This bright line, however, oversimplifies the issue at bar, for not all of the injuries alleged fall within the scope of the Act, even if they arise out of, or in the course of employment. The Court is skeptical as to whether torts based on employment discrimination fall within the ambit of the Workers' Compensation Act. While such torts may be precluded under the "arose out of" prong, it is equally plausible that they fall outside the purview of the Workers' Compensation Act given the legislative intent of the Act. The Court need not address this issue today because Caldwell does not come within the "in the course of" prong of the statute. Caldwell was not employed by Federal Express at the time of the alleged discrimination, and thus the Workers' Compensation Act is inapplicable. The Court holds that the alleged injuries suffered as a result of employment discrimination did not occur "while and because the plaintiff was at work." Id. at 366 (citations omitted).

Caldwell worked for Federal Express from November 1989 to December of 1992. She applied for a permanent position, and was rejected, in May of 1993. Caldwell claims that it was in May, 1993 that she was discriminated against on the basis of age and gender, a time at which she...