Richards v. City of Bangor

• Decision Date: 28 June 2012
• Docket Number: Civil No. 1:11–CV–446–DBH.
• Parties: Adeline E. RICHARDS, Plaintiff, v. CITY OF BANGOR, MAINE, Defendant.
• Court: U.S. District Court — District of Maine

878 F.Supp.2d 271

Adeline E. RICHARDS, Plaintiff,

v.CITY OF BANGOR, MAINE, Defendant.

Civil No. 1:11–CV–446–DBH.

United States District Court,

D. Maine.

June 28, 2012.

James A. Clifford, Law Office of James Clifford, LLC, Portland, ME, for Plaintiff.

Mark V. Franco, Portland, ME, for Defendant.

ORDER AFFIRMING RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

D. BROCK HORNBY, District Judge.

On May 25, 2012, the United States Magistrate Judge filed with the court, with copies to counsel, her Recommended Decision on Motion to Dismiss. The defendant filed an objection to the Recommended Decision on June 11, 2012. I have reviewed and considered the Recommended Decision, together with the entire record; I have made a de novo determination of all matters adjudicated by the Recommended Decision; and I concur with the recommendations of the United States Magistrate Judge for the reasons set forth in the Recommended Decision and determine that no further proceeding is necessary.

It is therefore ORDERED that the Recommended Decision of the Magistrate Judge is hereby ADOPTED. The motion to dismiss is GRANTED IN PART AND DENIED IN PART as follows: Counts I and IV are DISMISSED as time-barred. The motion to dismiss is DENIED as to all the federal counts. The motion to strike is DENIED.

So Ordered.

RECOMMENDED DECISION ON MOTION TO DISMISS

MARGARET J. KRAVCHUK, United States Magistrate Judge.

Plaintiff Adeline Richards commenced this civil action against her former employer, Defendant City of Bangor, alleging age-and disability-related discrimination, workplace harassment, and constructive discharge. Defendant has filed a motion to dismiss on the ground that Plaintiff did not timely institute her action. Defendant has also filed a motion to strike certain exhibits offered by Plaintiff in opposition to the motion. The Court referred the motions for report and recommendation. I now recommend that the Court grant, in part, the motion to dismiss and sustain the evidentiary objection found in the motion to strike that relates to opinion evidence proffered by Plaintiff.

The Pleadings

Plaintiff alleges her age is in excess of 70 years and that she experienced a number of serious health problems in 2007 and 2008, including high blood pressure, migraines, and vertigo. According to Plaintiff's allegations, her supervisor within Defendant's Health and Community Services Department began to make inappropriate and highly offensive comments to her about her age and medical condition, in the presence of coworkers. This treatment commenced in 2008. In that year, Defendant also reassigned Plaintiff to a new position. Plaintiff left work on medical leave between January and April 2009. Upon her return, her supervisor allegedly made more offensive statements and placed Plaintiff on unpaid administrative leave on two occasions. Plaintiff maintains that circumstances became unbearable and she was compelled to resign in June 2009. (Am. Compl. ¶¶ 4–15, Elec. Case File No. 5–5.)

Plaintiff timely filed a charge of discrimination with the Maine Human Rights Commission with the assistance of an attorney and that process exhausted with the issuance of a right to sue notice. ( Id. ¶¶ 16–17.) Plaintiff pro se filed suit against Defendant on August 25, 2011, in the Maine Superior Court. The original pro se complaint contained two counts: a count for age discrimination in violation of the Maine Human Rights Act and a count of disability discrimination under the Maine Human Rights Act. (See ECF No. 5–1.) Plaintiff, through counsel, filed her amended complaint on or about November 2, 2011. The amended complaint recites the following six counts:

Count I—age discrimination in violation of the MHRA;

Count II—age discrimination in violation of the Age Discrimination in Employment Act;

Count IV¹—disability discrimination in violation of the MHRA;

Count V—disability discrimination in violation of the Rehabilitation Act;

Count VI—disability discrimination in violation of the Americans with Disabilities Act;

Count VII—discrimination in violation of the Family Medical Leave Act.

(ECF No. 5–5.)

Additional Facts Offered by the Parties

The Maine Human Rights Commission's Notice of Right to Sue is dated May 4, 2011. (Pl.'s Opposition, Ex. 1, ECF No. 10–2.) In addition to sending Plaintiff the Notice, the Human Rights Commission also sent Plaintiff a letter dated May 26, 2011, informing her that her “charges of discrimination have been administratively dismissed pursuant to Section 2.02(I) of the Commission's Procedural Rules, because of the issuance of a Right to Sue letter by the Maine Human Rights Commission.” ( Id., Ex. 2, ECF No. 10–3.) The letter also states that the “case is being dismissed pursuant to 5 M.R.S.A. § 4612(6).” ( Id.) In her amended complaint, Plaintiff alleges that the Maine Human Rights Commission issued its Notice of Right to Sue on May 26, 2011 (Am. Compl. ¶ 17), but the actual Notice is attached to Plaintiff's affidavit and it is clearly marked May 4, 2011 (ECF No. 10–2).

Plaintiff has filed an affidavit in which she explains that her subjective understanding was that she had ninety days from the May 26 letter to file a complaint in court. (Aff. of Adeline Richards ¶ 4, ECF No. 10–1.) She further states that her prior counsel advised her she had until August 24, 2011, to file a complaint. ( Id. ¶ 5.) Plaintiff sought out advice from another lawyer after receiving yet another notice from the Equal Employment Opportunity Commission, this one received on June 21, 2011. ( Id. ¶ 6; see also Pl.'s Ex. 4, EEOC Dismissal and Notice of Rights, ECF No. 10–5.) That lawyer also informed Plaintiff that she had until August 24 to file her state claims, but added that she had until September 19 to file her federal claims. (Richards Aff. ¶ 7; Pl.'s Ex. 5, Letter of Lisa Butler, Esq., ECF No. 10–6.) Subsequently, Plaintiff contacted the Maine Human Rights Commission, was told she could not reopen her charges there, and eventually received a referral to the Maine Bar's Lawyer Referral Information Service. (Richards Aff. ¶¶ 8–10.) According to her affidavit, Plaintiff received a referral on August 24, 2011, to her current counsel, Attorney Clifford. Mr. Clifford was not available to take the case at that time, but offered some assistance to Plaintiff in drafting the complaint. Plaintiff filed a pro se action in state court on August 25, 2011. ( Id. ¶ 11–12.) Subsequently, Mr. Clifford agreed to represent Plaintiff and filed an appearance on her behalf. ( Id. ¶ 13.)

In addition to her own affidavit and the exhibits attached to it, Plaintiff has filed an affidavit from John Gause, Esq., Commission Counsel for the Maine Human Rights Commission, with attached exhibits, and a letter from Lisa Butler, Esq., informing Plaintiff that she had until August 24 to file. Defendant objects to these exhibits and requests that they be stricken. (Mot. to Strike, ECF No. 11.) In his affidavit, Mr. Gause describes telephone calls and written correspondence with Plaintiff after the dismissal of her administrative charge, and he attests, in a concluding paragraph, as follows:

I believe that a party or an attorney could reasonably interpret the May 26th letter as being the Commission's “right-to-sue” letter under 5 M.R.S.A. § 4612(6) because it states, “[t]he case is being dismissed pursuant to 5 M.R.S.A. § 4612(6),” and it informs the complainant that she “may continue to pursue this matter on your own in court.” In light of the potential for confusion that this case demonstrated, beginning in November 2011, the Commission discontinued the practice of issuing a separate dismissal letter with the “NOTICE OF RIGHT TO SUE” letter. It now just issues the “NOTICE OF RIGHT TO SUE” letter.

(Gause Aff. ¶ 18.) Butler's letter merely informed Plaintiff that she had until August 24, 2011, to pursue her state claims in court. (ECF No. 10–2.)

Dismissal Standards

Defendant's motion to dismiss is based on a statute of limitations defense. Rule 12 of the Federal Rules of Civil Procedure provides that a complaint can be dismissed for, among other things, “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To state a claim, a plaintiff must set forth (1) “a short and plain statement of the grounds for the court's jurisdiction”; (2) “a short and plain statement of the claim showing that the pleader is entitled to relief”; and (3) “a demand for the relief sought.” Fed.R.Civ.P. 8(a). Under Rule 12(b)(6), a defendant may advance a statute of limitation defense when the passage of time prevents a plaintiff from stating a claim for which relief can be granted. However, the facts supporting the defense should be clear on the face of the plaintiff's pleadings. Santana–Castro v. Toledo–Davila, 579 F.3d 109, 113–14 (1st Cir.2009). If the movant introduces documents outside the pleadings to validate its defense, the court may only consider the extraneous material by converting the motion to dismiss into a motion for summary judgment, and it may only do that if it gives the parties “a reasonable opportunity to present all the material that is pertinent to the motion.” Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir.2009) (quoting Fed.R.Civ.P. 12(d)). An exception to the conversion rule is recognized, however, which permits a court to consider documents that are not reasonably subject to challenge based on lack of authenticity, such as some public records and documents that are central to, incorporated into, or sufficiently referred to in the complaint. Greenier v. Pace Local No. 1188, 201 F.Supp.2d 172, 177 (D.Me.2002) (citing Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993)).

Discussion

The notices presented by Plaintiff in support of her opposition reveal that she received notice of her right to sue from the Maine Human Rights Commission (MHRC) on or about May 4, 2011, a separate dismissal letter from the MHRC on or about May 26, 2011, and notice of her...