Stinson v. SimplexGrinnell LP

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
________________
No. 05-1410
ANGELA STINSON
Plaintiff, Appellant,
v.
SIMPLEXGRINNELL LP, a Corporation,
Defendant, Appellee.
_____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
________________________
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Schwarzer,* Senior District Judge.
____________________
Guy D. Loranger with whom Nichols, Webb & Loranger was
on brief for appellant.
Mark Diana with whom Ogletree, Deakins, Nash, Smoak &
Stewart, P.C., Peter Bennett and The Bennett Law Firm, P.A. were
on brief for appellee.
October 21, 2005
*
Of the Northern District of California, sitting by
designation.
Schwarzer, Senior District Judge. Plaintiff Angela
Stinson appeals from the judgment dismissing her action for
retaliation in violation of the Maine Human Rights Act (“MHRA”).
The District Court, having granted leave to amend Stinson’s initial
complaint, granted defendant SimplexGrinnell’s Federal Rule of
Civil Procedure Rule 12(b)(6) motion to dismiss the amended
complaint, holding that Stinson had failed to state a claim. For
the reasons stated, we affirm.1
FACTUAL AND PROCEDURAL BACKGROUND
Stinson’s initial complaint stated that she was employed
by SimplexGrinnell as a service sales representative. She alleged
that on April 9, 2003, she sent an email to her district manager
1
We note certain facial deficiencies in Stinson’s pleadings
regarding diversity jurisdiction. First, Stinson failed to allege
an amount in controversy in excess of the requisite jurisdictional
amount under 28 U.S.C. § 1332(a). Second, Stinson alleged that she
is a resident of Maine, rather than a citizen, as required by
28 U.S.C. § 1332(a). Finally, she sued SimplexGrinnell as a
limited partnership but failed to allege that none of the members
of the partnership are citizens of Maine. While subject matter
jurisdiction deficiencies cannot be waived by the parties, the
court may hold the parties to any admissions of jurisdictional
facts made in the course of litigation. SimplexGrinell concedes in
its brief that the amount in controversy at the time of
commencement exceeds $75,000 and that Stinson is a citizen of
Maine. Moreover, it describes itself as a Delaware limited
partnership. Although that does not completely satisfy the
technical requirements applicable to jurisdiction over a limited
partnership, the parties have given no indication of the existence
of a limited partner with Maine citizenship. We therefore amend
Stinson’s complaint pursuant to 28 U.S.C. § 1653. See Odishelidze
v. Aetna Life & Cas. Co., 853 F.2d 21, 24-25 (1st Cir. 1988); see
also Snell v. Cleveland, Inc., 316 F.3d 822, 828 (9th Cir. 2002).
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complaining about the unprofessional conduct of her supervisor,
Joseph Correia (“Correia”). In this email, Stinson complained that
Correia took favorable accounts away from her, that he spoke to her
in an unfavorable tone, and that he screamed at the staff. She
alleges that she received a written warning in response to her
email, and that Correia screamed and swore at her in a subsequent
meeting. Following an investigation of her email, SimplexGrinnell
terminated her, finding that employees were intimidated and afraid
of her.
Stinson filed a complaint against SimplexGrinnell,
alleging that she was fired for complaining about a hostile work
environment and arguing that such retaliatory action was illegal
under the MHRA. SimplexGrinnell moved to dismiss Stinson’s
complaint under Federal Rule of Civil Procedure 12(b)(6). In
opposing SimplexGrinnell’s motion, Stinson requested permission to
amend her complaint, which the District Court granted. In doing
so, however, the court stated: “Maine’s Human Rights Act does not
protect employees from (or forbid retaliation based on opposition
to) all hostile work environments, only those where the hostility
proceeds from one of the prohibited characteristics (such as sex)
. . . . I will wait to see if the plaintiff, consistent with
Federal Rule of Civil Procedure 11(b), alleges activity that states
a claim.”
Stinson then filed her amended complaint, which contained
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the following factual allegations:
14. Prior to the above incident, Correia frequently
screamed and cursed at the Plaintiff. He did not treat
similar male employees in a similar manner.
15. Because of Correia’s abuse and creation of a hostile
environment, in November of 2003, Plaintiff called
Defendant’s employee Concern Line to complain about
Correia. During the phone call, Plaintiff specifically
complained Correia had created a hostile work
environment. Plaintiff [sic] complaint to Defendant of
the hostile work environment was made in good faith
belief that he had created a hostile environment based on
her sex and she communicated her complaint to Defendant
in good faith.
. . .
21. When speaking to Plaintiff, Correia would frequently
raise his voice or yell at her. He did not treat male
workers in a similar manner.
The amended complaint then stated her claim under the MHRA in the
following terms:
32. In November of 2003, Plaintiff complained in good
faith to Defendant that her supervisor, Joseph Correia,
was subjecting her to a hostile work environment.
Plaintiff communicated the complaint to Defendant in good
faith and truly believed that she had been the victim of
a hostile environment.
The District Court concluded that though Stinson’s
amended complaint contained references to alleged sexual
harassment, she failed to allege that she complained to her
employer about a sexually hostile environment and thus “still
fail[ed] to allege activity that states a claim for retaliation
under the Main Human Rights Act.” The court considered Stinson’s
careful phrasing of the amended complaint as intentional, given its
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prior reference to the strictures of Federal Rule of Civil
Procedure 11, and because Stinson had ample opportunity to cure the
deficiency in her pleading, the court dismissed the action.
Stinson now appeals the court’s judgment.
DISCUSSION
“This court applies a de novo standard of review to a
district court’s allowance of a motion to dismiss.” Martin v.
Applied Cellular Tech., Inc., 284 F.3d 1, 5 (1st Cir. 2002)
(citing TAG/ICIB Servs., Inc. v. Pan Am. Grain Co., 215 F.3d 172,
175 (1st Cir. 2000)). We accept as true “the well-pleaded factual
allegations of the complaint, draw all reasonable inferences
therefrom in the plaintiff’s favor and determine whether the
complaint, so read, sets forth facts sufficient to justify recovery
on any cognizable theory.” Martin, 284 F.3d at 6. However, when
it appears certain that the plaintiff would not be entitled to
relief even when allegations are viewed in the light most favorable
to her, dismissal is appropriate. See In re Colonial Mortgage
Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003) (affirming the
allowance of a motion to dismiss when “the plaintiff’s factual
averments hold out no hope of recovery on any theory adumbrated in
its complaint”).
To establish a prima facie case of retaliation under the
MHRA, Stinson “must show that: (1) she engaged in protected
activity; (2) her employer thereafter subjected her to adverse
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employment action; and (3) a causal link existed between the two
events.” Bowen v. Dep’t of Human Serv., 606 A.2d 1051, 1054 (Me.
1992); see Bishop v. Bell Atl. Corp., 299 F.3d 53, 58 (1st Cir.
2002).2 Specifically, to satisfy the third prong of this prima
facie test, Stinson “must present sufficient evidence to raise an
inference that her protected activity was the likely reason for the
adverse action and must show that her employer was aware that she
was engaged in the protected activity.” Bowen, 606 A.2d at 1054(emphasis added); see also King v. Town of Hanover, 116 F.3d 965,
968 (1st Cir. 1997); Oakstone v. Postmaster Gen., 332 F. Supp. 2d
261, 268 (D. Me. 2004). Courts have consistently held the failure
to make a showing of causation to be a fatal defect in a
retaliation claim. See Star v. Indiana Dep’t Of Transp., 344 F.3d
720, 727 (7th Cir. 2003) (citing Miller v. Am. Family Mut. Ins.
Co., 203 F.3d 997, 1008 (7th Cir. 2000) (“An employee can honestly
believe she is the object of discrimination, but if she never
mentions it, a claim of retaliation is not implicated, for an
employer cannot retaliate when it is unaware of any complaints.”));
Watts v. Kroger Co., 170 F.3d 505, 512 (5th Cir. 1999); Galdieri-
2
The Supreme Court of Maine has stated that “the Maine
legislature by adopting provisions that generally track the federal
antidiscrimination statutes intended the courts to look to the
federal case law to provide significant guidance in the
construction of our statute.” Maine Human Rights Comm’n v. City of
Auburn, 408 A.2d 1253, 1261 (Me. 1979) (internal quotation marks
omitted). Therefore, cases discussing Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-3(a), may be applied in
adjudications under the MHRA. See Bowen, 606 A.2d at 1054-55.
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Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir.
1998); Wiehoff v. GTE Directories Corp., 61 F.3d 588, 597-98 (8th
Cir. 1995).
Stinson summarizes her argument on appeal so as to
attempt to avoid the controlling law. She states in her brief that
“she told the employee hot line of Correia’s abusive behavior; that
he did not treat the male salesmen in a similar manner and that
Correia’s behavior was based on her gender.” This artful
circumlocution finds no support in her complaint, which carefully
avoids alleging that she complained to her employer of a hostile
work environment based on gender. Stinson argues that the Court
could infer that she communicated to her employer that her
complaints of a hostile environment were based upon her sex or
gender. But it hardly would be reasonable to draw an inference to
supply an essential element of Stinson’s case omitted from her
complaint after the District Court had warned her that the omission
would be fatal. See In re Colonial Mortgage Bankers Corp., 324 F.3d
at 15; see also Martin, 284 F.3d at 6. This Circuit has held that
minimal requirements [of notice pleading] are not
tantamount to nonexistent requirements. The threshold
may be low, but it is real--and it is the plaintiff's
burden to take the step which brings his case safely into
the next phase of the litigation. The court need not
conjure up unpled allegations or contrive elaborately
arcane scripts in order to carry the blushing bride
through the portal.
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Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988).3
We conclude that Stinson’s factual allegations “hold out
no hope of recovery on any theory adumbrated in [her] complaint.”
In re Colonial Mortgage Bankers Corp., 324 F.3d at 15.
CONCLUSION
The judgment is affirmed.
3
Materials beyond the amended complaint also fail to
demonstrate that Stinson registered a complaint of sex or gender-
based hostility. Stinson suggests that a memo summarizing her call
to an employee concern line demonstrates sufficient allegations of
a sexually hostile environment. However, Stinson’s second-hand
account of a single incident involving an employee (not Correia)
and a customer lacks sufficient significance to demonstrate the
presence of a sexually hostile workplace environment. The
incident’s placement in the memo as the final specific complaint,
following numerous other complaints unrelated to sex or gender,
further mitigates its relevance.
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