Ferrante v. MAS Med. Staffing

• Court: Superior Court of Maine
• Decided: May 6, 2013
• Docket: CUMcv-12-65
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. CV-12-65, ;, f~.' "-r -- ·'-- ' Ir·_·• -- .r/ /· -P· "'· 1 /'· :z ~) 0 J ..>

STEPHANIE FERRANTE, Plaintiff STATE OF MAINE ORDER ON Cumberland. ss. Clr.rt·'"' tJffice MOTION TO DISMISS v.

MAS MEDICAL STAFFING, RECEIVED Defendant

Before the Court is Defendant MAS Medical Staffing's motion to dismiss the

complaint against it filed by Plaintiff Stephanie Ferrante.

BACKGROUND

In her complaint, Plaintiff Stephanie Ferrante alleges that she was sexually

harassed by a female supervisor while she was working at Defendant MAS Medical

Staffing. Plaintiff eventually filed a complaint with the EEOC, and she alleges that her

employer retaliated against her by needlessly criticizing her, isolating her from her co-

workers, and taking away job responsibilities. She alleges that the retaliation led to her

"constructive discharge" in December 2011.

The complaint asserts: "Plaintiffhas complied with all administrative

requirements and has received a right to sue letter from the EEOC." (Compl. ~ 17.)

Count I alleges sex discrimination under the Maine Human Rights Act, as the conduct

alleged created a "hostile sexual environment for the Plaintiff." (Compl. ~ 18-22.) Count

1 II alleges retaliation under the MHRA. (Compl. ~~ 23-27.) Lastly, Count III asserts an

independent claim for "constructive discharge." (Compl. ~~ 28-31.)

DISCUSSION

Defendant alleges that Counts I and II, both brought under the MHRA, should be

dismissed due to Plaintiffs failure to comply with 5 M.R.S.A. § 4622. That section

provides: "Attorney's fees ... and civil penal damages or compensatory and punitive

damages may not be awarded to a plaintiff in a civil action under this Act unless the

plaintiff alleges 1 and establishes that, prior to the filing of the civil action, the plaintiff

first filed a complaint with the commission," and the Commission took one of several

enumerated actions, including dismissal. 5 M.R.S.A. § 4622(1). Thus,§ 4622 has two

separate requirements before a plaintiff may file suit in Superior Court: First, the plaintiff

must file a complaint with the MHRC. Second, the plaintiff must wait until the MHRC

takes action on the complaint.

Pursuant to § 4622, the Law Court has held that a litigant's failure to file a claim

with the MHRC prior to bringing a civil action bars recovery of attorney's fees and

damages. Gordan v. Cummings, 2000 ME 68, ~ 11, 756 A.2d 942. See also Schoendorf

v. RTH Mech. Contractors, Inc., 2012 U.S. Dist. LEXIS 109541 (D. Me. 2012). The Law

Court noted that the plaintiff could technically still obtain a judgment, but the claim was

moot because there was no remedy. Gordan, 2000 ME 68, ~ 11, 756 A.2d 942.

1 As to whether Plaintiff properly alleged that she complied with the MHRA

requirements, the complaint does not specifically mention the MHRA, but states generally: "Plaintiff has complied with all administrative requirements" and received a right to sue letter from the EEOC. The First Circuit suggested that the§ 4622 requirement is a condition precedent, and, as such, "it is sufficient to aver generally that all conditions precedent have been performed." Walton v. Nalco Chern. Co., 272 F.3d 13, 21 (1st Cir. 2001) (quoting Fed. R. Civ. P. 9(c), which is analogous to M.R. Civ. P. 9(c)). Thus, Plaintiffs complaint sufficiently alleges compliance with§ 4622.

2 The issue is whether Plaintiff properly complied with § 4622 before filing her

complaint here. In opposing the motion to dismiss, Plaintiff provided documentation

showing that Plaintiff filed a complaint with the MHRC on July 27, 2011, and the

Commission administratively dismissed the case on March 16, 2012. Plaintiff filed her

complaint on February 2, 2012. Based on the plain language of the statute, Plaintiff

failed to abide by the second part of § 4622 by filing her complaint with this Court before

the MHRC dismissed her complaint. Thus, the Court dismisses the complaint.

However, the Court dismisses the complaint without prejudice because Defendant

will not suffer plain legal prejudice. Courts may consider a range of factors in

determining whether a litigant has suffered plain legal prejudice. See Doe v. Urohealth

Sys., Inc., 216 F.3d 157, 160 (1st Cir. 2000) ("[T]he defendant's effort and expense of

preparation for trial, excessive delay and lack of diligence on the part of the plaintiff in

prosecuting the action, insufficient explanation for the need to take a dismissal, and the

fact that a motion for summary judgment has been filed by the defendant.").

Although Defendant has expended effort and expense in preparation for trial and

has filed a motion for summary judgment, these considerations are less compelling

because Defendant can use the same work product when Plaintiffre-files the complaint.

See, e.g., Puerto Rico Mar. Shipping Auth. v. Leith, 668 F.2d 46, 50 (1st Cir. 1981)

(discovery not wasted when it related to separate, pending suit); Berry v. Gen. Star Nat 'l

Ins. Co., 190 F.R.D. 697, 698 (M.D. Ala. 2000) (no prejudice when arguments and

evidence generated by defendant could be used ifplaintiffre-filed the case).

Furthermore, the Court may impose conditions on dismissing without prejudice as

a means to protect the Defendant. Bath Iron Works Corp. v. Parmatic Filter Corp., 736

3 F. Supp. 1175, 1178 (D. Me. 1990). Thus, the Court imposes the following terms and

conditions to limit prejudice to Defendant: Plaintiff has 20 days from the date of this

order to file a new complaint; if she does not, this complaint is dismissed with prejudice.

The new complaint may not add new claims or facts, except those necessary to

demonstrate compliance with the MHRA. Plaintiff may use only existing discovery,

unless a court order is obtained. Plaintiff must reimburse Defendant for any necessary,

duplicative costs in the subsequent litigation, including the summary judgment fee.

The entry will be:

The Court dismisses Plaintiffs complaint w·

4 STEPHANIE M FERRANTE VS MAS MEDICAL STAFFING UTN:AOCSsr -2012-0010529 CASE #:PORSC-CV-2012-00065

01 0000007387 BROOKS ROBERT C ONE PORTLAND SQUARE PO BOX 586 PORTLAND ME 04112-0586 F MAS MEDICAL STAFFING DEF RTND 04/23/2012

02 0000009294 LORANGER GUY D ONE GRANNY SMITH COURT SUITE 3 OLD ORCHARD BEACH ME 04064 F STEPHANIE M FERRANTE PL RTND 02/02/2012 -