Carey v. Mt. Desert Island Hosp.

• Decision Date: 21 December 1995
• Docket Number: Civ. No. 95-CV-167.
• Citation: 910 F. Supp. 7
• Parties: Michael D. CAREY and Janet Carey, Plaintiffs, v. MT. DESERT ISLAND HOSPITAL and, Mt. Desert Island Regional Health Care Corporation, Defendants.
• Court: U.S. District Court — District of Maine

910 F. Supp. 7

Michael D. CAREY and Janet Carey, Plaintiffs, v. MT. DESERT ISLAND HOSPITAL and, Mt. Desert Island Regional Health Care Corporation, Defendants.

Civ. No. 95-CV-167.

United States District Court, D. Maine.

December 21, 1995.

COPYRIGHT MATERIAL OMITTED

Sumner H. Lipman, Lipman & Katz, Augusta, Maine, for Plaintiffs.

Angela M. Farrell, Mitchell & Stearns, Bangor, Maine, A. James Johnston, Post & Schell, P.C., Philadelphia, PA, for Defendants.

ORDER AND MEMORANDUM OF DECISION

BRODY, District Judge.

Plaintiff, Michael D. Carey, worked at Mt. Desert Island Hospital ("MDI") from December 1983 until his termination on June 23, 1994. He now sues MDI, and Mt. Desert Island Regional Health Care Corporation ("MDI-RHC"). Carey filed a six count complaint alleging sexual discrimination, disparate treatment, and sexual harassment under Title VII and the Maine Human Rights Act (Counts I and II), retaliatory discharge under the Maine Human Rights Act ("MHRA") and the Civil Rights Act of 1964 (Count III), defamation (Count IV), loss of consortium (Count V) (by Janet Carey, Plaintiff's wife), and punitive damages (Count VI).

Defendants move to dismiss for failure to state a cognizable claim. Fed.R.Civ.P. 12(b)(6). The Court grants the 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

MDI is a non-profit health care corporation organized under the laws of Maine. MDI-RHC is a wholly owned subsidiary of MDI. Both entities maintain their principal place of business in Bar Harbor, Maine, and together the hospital and its subsidiary employ approximately 260 people.

Michael D. Carey served in various capacities at MDI over the ten year period from 1983 to 1994. Carey served as MDI's Chief Financial Officer at the time of his termination on June 23, 1994. He claims his duties related to both MDI and MDI-RHC.

Carey alleges that MDI treated him differently and ultimately fired him, at least in part, due to his gender. He also contends that his sexual harassment complaints contributed to MDI's decision to fire him. Carey cites the following examples to support his claims: (1) his exclusion from the search for a new Chief Executive Officer of MDI, (2) MDI's actions to discourage him from applying for the Chief Executive Officer position himself, and (3) his removal, without cause, from the Women's Health Center Steering Committee. According to the complaint, Carey's termination came absent prior "progressive discipline," as required by MDI's policy manual.

Carey asserts that he was sexually harassed at MDI, through offensive remarks, and that he reported this to his superiors. On August 10, 1992, for example, Carey sent a written complaint outlining these offensive remarks to James Morrock, MDI's then CEO, and Penny Evans. Later, Carey filed an in-house complaint after his termination, but he was denied a hearing because he refused to appear without counsel. In July of 1994, Carey filed a Complaint with both the Maine Human Rights Commission and the Equal Employment Opportunity Commission, neither of whom took action. In May of 1995, both agencies sent Carey a Notice of Right to Sue.

Carey sought other employment after his dismissal at MDI, and contends that in the process of seeking employment he was forced to explain the reasons for his termination at MDI. In so doing Carey contends that he was forced to repeat, and in effect, publish defamatory statements made by MDI. These statements form the basis of Carey's defamation count and the derivative loss of consortium claim. Michael Carey was married to Janet Carey on the date of his termination.

III. Discussion

Defendant MDI moves to dismiss Counts IV, V, and VI for failure to state a claim. Fed.R.Civ.P. 12(b)(6). MDI-RHC moves for dismissal of all claims against it on the same rationale.

A. Claims against MDI-RHC

MDI-RHC claims that Carey fails to implicate it in any of the alleged wrongdoing, and thus moves to dismiss. MDI-RHC notes that the complaint makes only two explicit references to the corporation; in the caption, and later in the description of the parties (Compl. ¶ 5). While technically correct, it is unclear at this juncture the exact relationship between MDI and MDI-RHC. Plaintiff treats the two entities as one throughout the complaint, continually referring to the "Defendant" and never distinguishing between MDI and MDI-RHC.

Defendants' citation to Kadar Corp. v. Milbury, 549 F.2d 230 (1st Cir.1977), is unpersuasive. In Kadar the Court dismissed counts against various defendants who were named only in the caption and never tied to the alleged misconduct. Id. at 233. To the extent that Carey considers MDI and MDI-RHC a single defendant, his allegations are imputed to both entities, thus establishing the potential for liability against both.

Plaintiff has the right to further explore the relationship between MDI and MDI-RHC through discovery. However, to the extent that information surfaces that relieves MDI-RHC from responsibility in this lawsuit, the Court will revisit this issue if appropriately raised. The Court denies Defendants' Motion to Dismiss as it relates to MDI-RHC at this stage of the proceedings.

B. Defamation and Derivative Loss of Consortium Claim

Count IV sounds in defamation, and Count V is a derivative claim by Janet Carey for loss of consortium based on the defamation count. Defendants move first to dismiss the defamation count, and to the extent they succeed, Defendants contend that the derivative loss of consortium count must be dismissed as well.

1. Doctrine of Compelled Self-Publication

Carey's defamation claim stems from his termination, allegedly based on false and discriminatory grounds, and the fact that "he has been forced to explain to potential future employers and other third parties the reason for his termination." (Compl. at ¶¶ 31-33). Carey argues that "the doctrine of compelled self-publication permits one to recover for defamation when they are forced to repeat a defamation, and the defendant knew or should have known that the publication would be repeated." (Resp.Br., 4).

In Maine, a cause of action for common law defamation requires a showing of:

(a) a false and defamatory statement concerning another;

(b) an unprivileged publication to a third party;

(c) fault amounting at least to negligence on the part of the publisher; and

(d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

Lester v. Powers, 596 A.2d 65, 69 (Me.1991) (citing Restatement (Second) of Torts, § 558 (1977)). Defendants argue that the defamation claim must fail because the Plaintiff does not establish either negligence, or proper publication. Plaintiff replies that the negligence at issue is imputed to MDI, and that publication is satisfied under the compelled self-publication doctrine.

Maine has not explicitly addressed the issue of defamation by compelled self-publication.¹ The task thus falls upon this Court to predict how Maine's highest court would resolve this issue. Moores v. Greenberg, 834 F.2d 1105, 1107 (1st Cir.1987). See also Nature Conservancy v. Machipongo Club, 579 F.2d 873, 875 (4th Cir.), cert. denied, 439 U.S. 1047, 99 S.Ct. 724, 58 L.Ed.2d 706 (1978). "Absent controlling state court precedent, a federal court sitting in diversity may certify a state law issue to the state's highest court, or undertake its prediction, `when the route the state courts would take is reasonably clear.'" Lyons v. National Car Rental Systems, Inc., 30 F.3d 240, 245 (1st Cir.1994) (quoting VanHaaren v. State Farm Mut. Auto Ins. Co., 989 F.2d 1, 3 (1st Cir.1993)). The Court is satisfied that the existing case law in Maine and other states, provides a sufficient basis from which this Court can predict how the Maine Supreme Judicial Court would address this issue.

A growing number of jurisdictions recognize the theory of compelled self-publication. See McKinney v. County of Santa Clara, 110 Cal.App.3d 787, 797-798, 168 Cal.Rptr. 89 (1st Dist.1980); Churchey v. Adolph Coors Co., 759 P.2d 1336, 1343-45 (Colo.1988); Colonial Stores, Inc. v. Barrett, 73 Ga.App. 839, 38 S.E.2d 306, 307-08 (1946); Grist v. Upjohn Company, 16 Mich.App. 452, 168 N.W.2d 389, 405-06 (1969); Lewis v. Equitable Life Assur. Soc., 389 N.W.2d 876, 886-88 (Minn.1986).² These cases generally arise in employment disputes where the originator of the defamatory statement has reason to believe that the defamed person will be under strong compulsion to disclose the contents of the defamatory statement to a third person. McKinney, 110 Cal.App.3d at 796-98, 168 Cal.Rptr. 89. These courts ground compelled self-publication in the notion of foreseeability. Id. Specifically courts inquire as to whether the employer-defendant knew or could have foreseen that the plaintiff would be compelled to repeat the defamatory...