Jacqmin v. Savilinx

STATE OF MAINE BUSINESS AND CONSUMER COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO. BCD-CIV-2021-00037

SCOTT JACQMIN, )
)
Plaintiff, )
)
)
v. ) ORDER GRANTING MOTION
) FOR SUMMARY JUDGMENT
) IN FAVOR OF DEFENDANT
) SAVILINX
SAVILINX, )
)
Defendant. )

INTRODUCTION

This case is about a dispute underlying an employee’s termination. Plaintiff Scott Jacqmin

(“Jacqmin”) brings claims for violation of Maine’s Whistleblower Protection Act, 26 M.R.S.A. §

831 et seq. (“Count I”), and for invasion of privacy (“Count II”). At present before the Court is

Defendant SaviLinx’s (“SaviLinx”) Motion for Summary Judgment under Maine Rule of Civil

Procedure 56(b) as to each claim. For the reasons discussed below, the Court GRANTS summary

judgment to SaviLinx on Counts I and II.

STANDARD OF REVIEW

Summary judgment is appropriate when the parties’ statements of material facts and the

portions of the record referenced therein “disclose no genuine issues of material fact and reveal

that one party is entitled to judgment as a matter of law.” Currie v. Indus. Sec., Inc., 2007 ME 12,

¶ 11, 915 A.2d 400 (citing M.R. Civ. P. 56(c)). “A material fact is one that can affect the outcome

of the case, and there is a genuine issue when there is sufficient evidence for a fact finder to choose

between competing versions of the fact.” Lougee Conservancy v. CitiMortgage, Inc., 2012 ME

1
103, ¶ 11, 48 A.3d 774 (quoting Stewart-Dore v. Webber Hosp. Ass'n, 2011 ME 26, ¶ 8, 13 A.3d

773). The Court must view the parties’ statements of material facts in the light most favorable to

the non-movant and must draw all reasonable inferences in favor of the same. See Levis v.

Konitzky, 2016 ME 167, ¶ 19, 151 A.3d 20.

To withstand a motion for a summary judgment, the plaintiff must establish “a prima facie

case for each element of [their] cause of action[, but if] a plaintiff does not present sufficient

evidence on the essential elements [then] the defendant is entitled to a summary judgment.” Watt

v. UniFirst Corp., 2009 ME 47, ¶ 21, 969 A.2d 897 (citations omitted). That is, a defendant is

entitled to summary judgment when “the plaintiff presents insufficient evidence on an essential

element in [their] cause of action, such that ‘the defendant would . . . be entitled to judgment as a

matter of law on that state of the evidence at trial.’” Doyle v. Dep’t of Hum. Servs., 2003 ME 61,

¶ 9, 824 A.2d 48 (quoting Johnson v. Carleton, 2001 ME 12, ¶ 11, 765 A.2d 571).

FACTS

For the limited purpose of deciding SaviLinx’s Motion for Summary Judgment, this Court

finds the following material facts 1 undisputed:

SaviLinx is a Maine business entity with a primary place of business in Brunswick, Maine.

(Pl.’s Compl. ¶ 3.) Jacqmin was employed by SaviLinx beginning during 2015 and through May

10, 2019. (Pl.’s Compl. ¶ 6; Supp.’g S.M.F. ¶ 1.) On or about September 30, 2015, as part of

SaviLinx’s hiring process Jacqmin signed a Photo Release Form permitting SaviLinx “its

representatives and employees the right to take photographs” of him, and which authorized

1
“Documents that are unaccompanied by an authenticating affidavit based on personal knowledge under Maine Rule
of Civil Procedure 56(e) should not be considered for purposes of summary judgment.” Emery Lee & Sons, Inc. v.
Acadia Ins. Grp., LLC, 2016 WL 1706499, *5 (citing Cach LLC v. Kulas, 2011 ME 70, ¶ 11, 21 A.3d 1015).
Accordingly, the Court has disregarded any such documents. The Court has also disregarded any statement of fact not
properly supported by a specific record citation. M.R. Civ. P. 56(h)(4).

2
SaviLinx and “its assigns and transferees to copyright, use and publish the [photographs] in print

and/or electronically.” (Supp.’g S.M.F. ¶ 2; Jacqmin Dep. Ex. 3.4.) Further, the release form

permitted SaviLinx to use photographs of Jacqmin taken in accordance therewith “with or without

[Jacqmin’s] name for any lawful purpose, including . . . as publicity, illustration, advertising and

Web content.” (Supp.’g S.M.F. ¶ 2; Jacqmin Dep. Ex. 3.4.)

As part of Jacqmin’s job for SaviLinx, he provided information by telephone to participants

in a federal employee benefits program known as “FEDVIP.” (Supp.’g S.M.F. ¶ 3.) To perform

this aspect of his job, Jacqmin was provided access to private information belonging to FEDVIP

participants. (Supp.’g S.M.F. ¶ 4.) Jacqmin’s job also entailed maintenance of the confidentiality

of FEDVIP participants’ private healthcare information in accordance with the Health Insurance

Privacy and Accountability Act of 1996 (“HIPAA”), and designation of client data as “Protected

Healthcare Information” (“PHI”) within the meaning of HIPAA. 2 (Opp. S.M.F. ¶ 3). Jacqmin

received training from SaviLinx, at the outset of his employment and annually, on the application

of HIPAA to his job duties, and he could distinguish confidential PHI from non-PHI. (Supp.’g

S.M.F. ¶¶ 7, 9-11.) SaviLinx’s training program mandated that Jacqmin and other employees of

2
“‘PHI’ is any individually identifiable health information relating to the . . . health condition of [an] individual
regardless of the form in which it is maintained.” (Jacqmin Dep. Ex. 20, 1.) “A name or social security number by
itself is not considered PHI. But combine that information with something related to that person’s health, and it
becomes PHI.” (Id.) HIPAA is breached when PHI is improperly used or disclosed. (Id. at 3.) According to the
federal rules, “Breach” means impermissible “acquisition, access, use, or disclosure of [PHI] . . . which compromises
the security or privacy” thereof. 45 C.F.R. § 164.402 (2013) (emphasis added). Excluded from the definition of
“breach” within the meaning of HIPAA is “disclosure of [PHI] where a covered entity or business associate has a
good faith belief that an unauthorized person to whom the disclosure was made would not reasonably have been able
to retain such information.” Id. § 164.402(1)(iii). Implicitly, this exclusion need not be applied when the unauthorized
person to whom the disclosure was made could not first obtain the PHI. “Unsecured” PHI is PHI that is “not rendered
unusable, unreadable, or indecipherable to unauthorized persons” through the use of technology or methodology
specified by the Guidance to Render Unsecured Protected Health Information Unusable, Unreadable or Indecipherable
to Unauthorized Individuals, 74 Fed. Reg. 42,740, 42,742 (Aug. 24, 2009). 45 C.F.R. § 164.402. PHI detailed in
paper, film, or other hard copy media are secured or protected when the media is shredded or destroyed “such that the
PHI cannot be read or otherwise cannot be reconstructed.” Guidance to Render Unsecured Protected Health
Information Unusable, Unreadable or Indecipherable to Unauthorized Individuals, 74 Fed. Reg. 42,740, 42,742-743
(Aug. 24, 2009) (codified in part at 45 C.F.R. § 164.402).

3
SaviLinx, when a HIPAA breach occurred, “quickly investigate the breach, mitigate it, document

it, and then notify the covered entity whose information was affected as well as potentially the

Office of Civil Rights at the Department of Health and Human Services.” (Jacqmin Dep. Ex. 20,

3.)

While employed by SaviLinx, Jacqmin was provided a workstation with two computer

monitors. (Supp.’g S.M.F. ¶ 13.) As was typical in his work for SaviLinx, Jacqmin would keep

open numerous software programs at any given time for his use when assisting clients, and he

would toggle between them on the two monitors as appropriate based on the tasks he performed.

(Supp.’g S.M.F. ¶ 14.) These software programs included “clock-in” software that tracked

Jacqmin’s working time, programs used for interacting with FEDVIP participants, and other

ancillary programs. (Supp.’g S.M.F. ¶ 15.) Thus, at any given time Jacqmin’s monitors might, or

might not, display a FEDVIP participant’s PHI. (Supp.’g S.M.F. ¶ 16.)

SaviLinx designed and implemented various policies to protect against possible violations

of HIPAA. (Pl.’s Reply S.M.F. ¶ 2). For example, SaviLinx posted signage at its Brunswick office

in the area of Jacqmin’s workstation indicating its policy that use of cell phones was prohibited

there. (Supp.’g S.M.F. ¶ 30.) At all relevant times, these policies were enforced at the discretion

of SaviLinx’s management. (Supp.’g S.M.F. ¶ 33; Opp. S.M.F. ¶ 33.)

During his employment by SaviLinx, Jacqmin was photographed seated at his workstation

by a representative of SaviLinx (“the Photograph”). (Supp.’g S.M.F. ¶ 20). The Photograph shows

Jacqmin as well as the workstation environment, including Jacqmin’s two computer monitors.

(Opp. S.M.F. ¶ 20; Pl.’s Reply S.M.F. ¶ 8.) At the time the Photograph was taken, one of Jacqmin’s

computer monitors displayed customer-facing information. (Supp.’g S.M.F. ¶ 21.) Jacqmin is

4
unsure whether the information was a FEDVIP participant’s PHI, although he believes it was.

(Supp.’g S.M.F. ¶ 22.)

Ultimately, the Photograph was incorporated into the design for a promotional “rack card”

for SaviLinx’s use (the “Card”). (Supp.’g S.M.F. ¶¶ 17-18; Jacqmin Dep. Ex. 3.1.) As printed on

the Card, none of the information displayed on Jacqmin’s computer monitors at the time the

photograph was taken was legible to the naked eye. (Supp.’g S.M.F. ¶ 23; Opp. S.M.F. ¶ 23.) On

or about August 22, 2018, SaviLinx provided the Card to other employees to distribute to interested

candidates for employment with SaviLinx. (Pl.’s Reply S.M.F. ¶ 12.) Upon learning about this,

Jacqmin reported his concern that the Photograph constituted a breach of HIPAA to SaviLinx

management, and SaviLinx agreed to stop distributing the Card with the Photograph printed

thereon. (Pl.’s Reply S.M.F. ¶¶ 13-14.) On or about October 30, 2018, Jacqmin observed copies

of the Card displayed by SaviLinx at an in-house hiring event that it hosted. (Supp.’g S.M.F. ¶

19; Pl.’s Reply S.M.F. ¶ 9.) Believing in good faith that the Card violated HIPAA, Jacqmin

suffered emotional distress and anxiety that resulted in him being out of work for two weeks. (Pl.’s

Reply S.M.F. ¶ 16.)

Contemporaneously with the Photograph, SaviLinx produced two videos of Jacqmin for

promotional purposes. (Supp.’g S.M.F. ¶ 25; Jacqmin Dep. Ex. 3.3.) One of these videos shows

Jacqmin seated at his workstation from a side-view (the “Second Video”). (Pl.’s Compl. ¶ 8;

Supp.’g S.M.F. ¶ 25; Jacqmin Dep. Ex. 3.3.) Jacqmin coordinated with SaviLinx to ensure that,

at the time the Second Video was produced, his workstation, including his two computer monitors,

would be clear of any FEDVIP participant’s PHI or other confidential client information. (Supp.’g

S.M.F. ¶ 26.) Similar to the Photograph, the Second Video shows Jacqmin’s righthand computer

monitor’s screen. (Supp.’g S.M.F. ¶ 28.) Each image (the Photograph and the Second Video’s

5
display) of Jacqmin’s workstation shows a blue stripe near bottom of the monitor’s display, and a

gray stripe near the top. (Supp.’g S.M.F. ¶ 28.) Neither video captures nor displays any FEDVIP

participant’s PHI, nor do they reflect a violation of HIPAA. (Supp.’g S.M.F. ¶¶ 27, 29; Opp.

S.M.F. ¶¶ 27, 29.)

Jacqmin believed that a person observing the Card with the Photograph printed on it would

view him as one who does not respect PHI and who violates HIPAA. (Supp.’g S.M.F. ¶ 34.)

During November 2018, he filed a formal HIPAA complaint with state and federal agencies.

(Jacqmin Dep. 164:14-25, 165:1-11; Pl.’s Reply S.M.F. ¶ 18.) Jacqmin alleges that, as a result of

his HIPAA complaint, he was subjected to forms of harassment by SaviLinx. (Pl.’s Reply S.M.F.

¶¶ 19-20; Def.’s Reply S.M.F. ¶¶ 19-20.) Jacqmin’s employment with SaviLinx was eventually

terminated during May 2019. (Supp.’g S.M.F. ¶ 1; Pl.’s Reply S.M.F. ¶ 22; Def.’s Reply S.M.F.

¶22.) The Photograph is Jacqmin’s sole basis for his invasion of privacy claim. (Supp.’g S.M.F.

¶ 35.)

DISCUSSION

Jacqmin asserts two issues flowing from the Photograph. First, he argues SaviLinx violated

Maine’s Whistleblower Protection Act (the “WPA”) at 26 M.R.S.A. § 831 et seq. when, after he

engaged in a protected activity within the meaning of the WPA by reporting to SaviLinx and then

government agencies that he believed SaviLinx’s use of the Photograph violated HIPAA, it

subjected him to adverse employment actions and then terminated him as a result of his reports.

Jacqmin next argues that SaviLinx’s publication of the Photograph on the Card used for

promotional purposes amounted to an invasion of his privacy, portrayal of him in a false light, and

a misappropriation of his image because it showed him participating in conduct that he believed

violated HIPAA, which would be highly offensive to a reasonable person.

6
SaviLinx seeks summary judgment in its favor for each of Jacqmin’s claims. As to

Jacqmin’s WPA claim, SaviLinx argues it is entitled to summary judgment because Jacqmin had

no reasonable cause to believe the Photograph constituted a violation of HIPAA, and therefore he

did not engage in a “protected activity” within the meaning of the WPA. SaviLinx also argues

Jacqmin’s invasion of privacy claims must fail because he signed the release form authorizing

SaviLinx to photograph him in connection with its business and to use of his image. SaviLinx

further argues that Jacqmin’s false light claim fails as a matter of law because the Photograph does

not portray any falsity about him, and that the purported appropriation of Jacqmin’s image would

not cause mental distress and injury to another possessed of ordinary feelings and intelligence.

I. SaviLinx is entitled to summary judgment for Count I of Jacqmin’s Complaint because
Jacqmin’s reporting does not amount to activity protected by the WPA.

The Maine Human Rights Act prohibits employers from discriminating against employees

because of actions protected under the WPA. Goucher v. Dep’t of Pro. and Fin. Regul., 2015 ME

44, ¶ 12, 114. A.3d 988 (citation omitted). “To prevail on a WPA claim, an employee must show

that (1) [they] engaged in activity protected by the WPA; (2) [they] experienced an adverse

employment action; and (3) a causal connection existed between the protected activity and the

adverse employment action.” Id. (citation omitted). At issue is whether Jacqmin’s reporting

regarding the Photograph and the purported resulting HIPAA violation to SaviLinx and then to

state and federal agencies constituted activity protected by the WPA. 3

The WPA provides that no employer may discharge, threaten or otherwise discriminate

against an employee regarding the employee’s terms and conditions of employment because the

3
In his Complaint, Jacqmin also asserts SaviLinx’s actions violate 26 M.R.S.A. § 570, which prohibits discrimination
against employees “because that employee has filed any complaint concerning an alleged occupational safety or health
hazard . . .” Handlin v. Broadreach Pub. Rels., LLC, 2022 ME 2, ¶ 14, 265 A.3d 1008 (citing 26 M.R.S. § 570 (2021)).
Because Jacqmin’s reports in this matter were not concerned with conduct regarding an “occupational safety or health
hazard” within the plain meaning of 26 M.R.S.A. § 570, he cannot establish a prima facie case for a violation of this
statute by SaviLinx. See Id. ¶¶ 14-15.

7
employee, acting in good faith, reports orally or in writing to the employer or a public body what

the employee has reasonable cause to believe is a violation of Maine or federal law. 26 M.R.S.A.

§ 833(1)(A) (2007). This means that an employee is required to prove their good faith belief that

the employer’s reported conduct was unlawful, and that “a reasonable person might have believed

that the employer was acting unlawfully.” Bard v. Bath Iron Works, Corp., 590 A.2d 152, 155

(Me. 1991). This “reasonable cause” requirement “is met only when the employee presents

evidence showing [they] had a subjective belief that the employer engaged in illegal activity and

the belief was objectively reasonable in that a reasonable person might have believed illegal

activity occurred.” Lee v. Town of Denmark, 2019 ME 54, ¶ 8, 206 A.3d 907 (citation omitted).

Summary judgment for SaviLinx is improper if the undisputed evidence discloses Jacqmin

had reasonable cause to believe SaviLinx’s production and distribution of the Photograph was

unlawful because it constituted a breach within the meaning of HIPAA. HIPAA is breached by

conduct that “compromises the security or privacy” of PHI. 45 C.F.R. § 164.402. Here, the

Photograph alone does not compromise the security or privacy of any PHI it allegedly captures. It

is undisputed that no information from Jacqmin’s computer monitor, let alone any numeral, letter,

or symbol, is immediately legible in the Photograph, clearly or otherwise. 4 Even if Jacqmin has

reasonable cause to believe that PHI was on display at the time the Photograph was taken, such

reasonable cause for belief does not extend to the proposition that the Photograph itself

compromises the security or privacy of any such PHI. Viewing the parties’ statements of material

facts in the light most favorable to Jacqmin, it is unreasonable to infer that another employee of

SaviLinx’s in the same circumstances as Jacqmin would reasonably believe the Photograph as

reproduced on the Card compromised the security or privacy of PHI. There is not sufficient

4
And Jacqmin has failed to create even a genuine dispute of material fact that it is possible to magnify the Card such
that the content of the computer monitor would be legible, or that such a concern would be reasonable.

8
evidence to require a fact finder to choose between competing versions of this fact. Thus,

Jacqmin’s contention that his reporting was “activity protected by the WPA” cannot succeed, nor

can Count I of his Complaint. Because it “founders on the first element of the required showing,”

Jacqmin’s WPA claim cannot proceed. See Robson v. Shaws Supermarkets, Inc., 411 F. Supp. 3d

58, 75 (D. Me. Sept. 6, 2019). Summary judgment must be granted for SaviLinx on Count I of

Jacqmin’s Complaint.

II. SaviLinx is entitled to summary judgment for Jacqmin’s invasion of privacy claims.

Jacqmin’s assertions that summary judgment for SaviLinx is inappropriate and must be

denied as to each of his invasion of privacy claims are interwoven by a common thread: that

Jacqmin’s image was disseminated by SaviLinx together with confidential PHI in the Photograph

as reproduced in the Card. As discussed, there is insufficient evidence to generate a dispute

regarding the presence of PHI in the Photograph. Accordingly, SaviLinx is entitled to summary

judgment for Count II of Jacqmin’s Complaint.

A. There is insufficient evidence to generate a dispute as to whether Jacqmin was
portrayed in a “false light” by SaviLinx’s production and dissemination of the
Photograph.

Liability for publicity placing a person in a false light requires proof that 1) the false light

in which the person was placed would be highly offensive to a reasonable person, and 2) the actor

had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the

false light in which the other would be placed. See Cole v. Chandler, 2000 ME 14, ¶ 17, 752 A.2d

1189 (quoting Restatement (Second) of Torts § 652E (Am. Law Inst. 1977)). “Publicity” in this

context means “that the matter is made public, by communicating it to the public at large, or to so

many persons that the matter must be regarded as substantially certain to become one of public

knowledge.” Id. (quoting Restatement (Second) of Torts § 652D cmt. a (Am. Law Inst. 1977)).

Such publicity must be undertaken in a manner that links the person portrayed to the alleged

9
wrongdoing, or otherwise portrays them in a false light. See Perkins v. City Enterprises, LLC, No.

CV-03-190, 2004 WL 31962056, at *6 (Me. Super. Ct. Nov. 18, 2004) (citing Cole, 2000 ME 14,

¶ 18, 752 A.2d 1189).

The parties’ statements of material facts do not disclose sufficient evidence of any HIPAA

violation from breached PHI or other “wrongdoing.” Therefore, the Photograph as reproduced in

the Card cannot reasonably be said to create a false impression regarding Jacqmin’s commitment

and respect to HIPAA law and customer privacy. Absent sufficient evidence to support a prima

facie case for each element of Jacqmin’s false light claim, SaviLinx is entitled to summary

judgment thereon.

B. Jacqmin executed a release form that permitted SaviLinx’s production and use of the
Photograph at issue for SaviLinx’s benefit.

“One who appropriates to [their] own use or benefit the name or likeness of another is

subject to liability to the other for invasion of [their] privacy.” Nelson v. Maine Times, 373 A.2d

1221, 1224 (Me. 1977) (quoting Restatement (Second) of Torts § 652C (Am. Law Inst. 1977)).

To be liable, a defendant must anticipate that the appropriation would cause mental distress and

injury to a person of ordinary sensibilities. Id. The appropriation must also benefit the defendant.

Id. The defendant must be the one responsible for the appropriation. Simpson v. Cent. Maine

Motors, Inc., 669 A.2d 1324, 1326 (Me. 1996).

The cause of action for appropriation may be available when a party does not execute a

release form associated with the reproduction and use of their name or likeness. See Powers v. PT

Showclub, No. CV-11-0267, 2011 Me. Super. LEXIS 216, at *1, *7-9 (Aug. 23, 2011). In this

case, on September 30, 2015, Jacqmin executed the aforementioned Photo Release Form granting

SaviLinx “the right to take photographs” of him “in connection with” SaviLinx’s business, and

wherein Jacqmin agreed that SaviLinx “may use such photographs” of him “for any lawful

10
purpose, including for ...publicity." (Jacmin.Dep.Ex. 3.4.) Jacqmin interprets the release to

prohibit more than publication by SaviLinx of any image featuring him or his likeness together

with PHI (which Jacqmin construes as an "unlawful use" within the meaning of HIPAA and

therefore not a "lawful purpose" within the meaning ofthe release ). Jacqmin further reduces the

meaning of the release to permit photography of his person only, for example a "headshot," but

not his workstation.

The Court is not persuaded that the release form might not apply to the Photograph at issue.

SaviLinx's intended use ofthe Photograph was for a "lawful purpose," as no HIPAA violation or

breach ofPHI occurred when the Photograph was reproduced in the Card. Jacqmin concedes that

a photograph ofhis person would be "lawful" when no PHI is compromised. (Pl.'s Opp.to Def.'s

Mot. Summ.J.11.) Accordingly, there is insufficient evidence available to dispute the release

form's applicability. Because Jacqmin permitted SaviLinx's production of the Photograph and

their use thereof to benefit SaviLinx's business, his misappropriation claim cannot proceed as a

matter oflaw.

CONCLUSION

For the foregoing reasons, Defendant SaviLinx's Motion for Summary Judgment is

GRANTED and the Court enters judgment in favor ofSaviLinx on Counts I and II ofPlaintiff

Scott Jacqmin's Complaint.Since Counts I and II are the only Counts remaining, the Court

enters final judgment in favor ofSaviLinx.

The Clerk is instructed to enter this Order on the docket for this case by incorporating it by

reference. M.R.Civ.P.79(a ).

So Ordered.

Dated: 09/20/2022

Business and Consumer Court
11
BCD-CIV-2021-37

SCOTT JACQMIN

Plaintiff(s)

v.

SAVILINX

Defendant(s)

Party Name: Attorney Name:

Scott Jacqmin Jeffrey Bennet, Esq.
Legal Ease LLC, PA
198 Maine Mall Road Box 15
South Portland, ME 04106

SaviLinx Daniel Rosenthal, Esq.
Marcus Clegg
16 Middle Street Suite 501
Portland, ME 04101-5166
STATE OF MAINE BUSINESS & CONSUMER COURT
CUMBERLAND, ss. DOCKET NO. BCD-CIV-2021-37

)
SCOTT JACQMIN, )
)
Plaintiff, )
V. ) ORDER GRANTING IN PART AND
) DENYING IN PART SAVILINX'S MOTION
SAVILINX, ) TODISMISS
)
Defendant. )

Plaintiff Scott Jacqmin ("Jacqmin") has brought a four count Complaint against Defendant

Savilinx ("Savilinx"). Count I alleges employment discrimination and retaliation in violation of

inter alia the Maine Whistleblower Protection Act, 26 M.R.S.A. § 831 et. seq.; Count II alleges

invasion of privacy; Count III alleges Intentional Inflict of Emotional Distress; and Count IV

alleges Negligent Infliction of Emotional Distress. In response, Savilinx has filed a Motion to

Dismiss all four counts pursuant to M.R. Civ. P. 12(b)(6) for failure to state a claim. In support of

its Motion, Savilinx also asks the Court to consider certain photographs, videos, and documents

pursuant to the Moody exception. See Moody v. State Liquor & Lottery Comm 'n, 2004 ME 20, ,r

10, 843 A.2d 43. For the reasons discussed below, the Court declines to invoke the Moody

exception; denies the Motion with regard to Counts I and II; and grants the Motion with regard to

Counts III and IV. 1

LEGAL STANDARD

1 Counsel have filed well-written and comprehensive briefs. Accordingly, rather than delaying the case by waiting

several weeks for the opportunity to conduct oral argument, the Court is ruling on the Motion without hearing as
authorized by M.R. Civ. P. 7(b)(7).

1
When reviewing a motion to dismiss under Rule l 2(b)(6), the Court "consider[s] the facts

in the complaint as ifthey were admitted." Bonney v. Stephens Mem. Hosp., 2011 ME 46, ,-r 16, 17

A.3d 123. The complaint is viewed "in the light most favorable to the plaintiff to determine

whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to

relief pursuant to some legal theory. Id. (quoting Saunders v. Tisher, 2006 ME 94, ,-r 8, 902 A.2d

830). "Dismissal is warranted when it appears beyond a doubt that the plaintiff is not entitled to

relief under any set of facts that [it] might prove in support of [its] claim." Id. However, the Court

is not required to accept as true allegations that are merely legal conclusions couched as factual

allegations. See, e.g., Bryan R. v. Watchtower Bible and Tract Society ofNew York, Inc., 1999 ME

144, ,-i,-i 20-22, 738 A.2d 839; Courtois v. Maine Pub. Employees Retirement Sys., No. AP-11-26,

2012 WL 609567 (Me. Super. Ct. Jan 17, 2012).

FACTS

Before stating the facts the Court must determine whether it is going to consider the

material provided by Savilinx, even though that material was not attached to the Complaint. Under

the Moody exception the Court can consider official public documents, documents that are central

to Plaintiff's claim, and the documents referred to in the Complaint, without converting a motion

to dismiss into a motion for summary judgment when the authenticity of such documents is not

challenged. Moody, 2004 ME 20, ,-r,-r 9-10, 843 A.2d 43. Here, the materials submitted by Savilinx

are not official public documents, may or may not be central to Plaintiff's claim, are not

specifically referred to in the Complaint, and have not been authenticated. It seems apparent the

materials are central to Savilink's defense, but that is not a basis for applying the Moody exception.

Accordingly, the Court does not consider the materials in deciding the Motion to Dismiss.

2
The following facts pled in the Complaint are considered as if they are admitted. Jacqmin

was an employee of Savilinx from 2015 to May 10, 2019. Savilinx is a marketing or public

relations firm, employing approximately 1,112 employees. Jacqmin performed his job

satisfactorily and was identified as having excellent customer service skills. On multiple dates

beginning on or about August 27, 2018, Jacqmin reported to Savilinx management what he

believed in good faith were violations of law, including specifically HIPAA law violations and

misuse or misappropriation of his likeness or image. Specifically, Jacqmin reported to

management that Savilinx was creating and publishing imagery in violation of HIPAA and that he

did not want his image used in connection with what he believed in good faith to be an unlawful

and wrongful use or context. In November 2018, Jacqmin filed a formal HIPAA complaint with

state or federal agencies and complained to his immediate supervisor. On January 9, 2019, Jacqmin

complained to Savilinx's Chief Executive Officer.

Soon after reporting his complaints Jacqmin was subjected to harassment and retaliation at

work. Jacqmin reported this harassment and retaliation to his immediate supervisor and to other

Savilinx managers. Savilinx failed to investigate Jacqmin's complaints and took no steps to protect

Jacqmin from harassment and retaliation. Rather, Savilinx's managers told Jacqmin to stop

complaining. On May 10, 2019, Savilinx discharged Jacqmin for what he alleges were pretextual

reasons. Jacqmin suffered damages, including but not limited to emotional distress.

DISCUSSION

The gist of Savilinx's argument - shorn of any reliance on the extraneous materials

excluded by the Court - is that Jacqmin has failed to plead with particularity the facts needed to

establish the prima facie elements for each Count of the Complaint. The gist of Jacqmin's

3
opposition is that under Maine's relaxed notice pleading practice, he has pled the facts well enough

to put Savilinx on notice of his claims. The arguments of both parties are partially correct.

For analytical purposes, it is convenient to divide the Complaint into two halves: Counts I

(statutory employment discrimination) and II (invasion of privacy) in the first half, and Counts III

(intentional infliction) and IV (negligent infliction) in the second half. The counts in the first half

are subject to ordinary notice pleading rules. A plaintiff must plead enough facts to make out the

prima facie elements of each count, but the Court does not perform any heightened gatekeeper

role. See M. R. Civ. P. 8(a)(l); Johnson v. Me. Energy Recovery Co., Ltd. P'ship, 2010 ME 52, ,r

16, 997 A.2d 741. Viewing Count I in the light most favorable to Jacqmin, the facts pled by

Jacqmin establish that he engaged in protected activity, he experienced adverse employment

action, and there is a causal connection. See Ga/ouch v. Dept. ofProf & Financial Reg., 2015

ME 44, ,r 12, 114 A.3d 988. Savilinx protests that the Complaint does not specify in detail the

precise nature of Jacqmin's HIPAA concerns. However, "[a] complaint need not identify

particular legal theories that will be relied upon ..." Johnson, 2010 ME 52, ,r 17, 997 A.2d 741.

The facts pled in the Complaint put Savilinx on notice that Jacqmin believed the use or context of

the imagery involved constituted a HIPAA violation. Having been appropriately put on notice,

Savilinx can now ferret out the details through the discovery process. 2 Savilinx' s Motion is denied

as to Count I.

Similarly, Savilinx has been sufficiently put on notice regarding Jacqmin's Count II

violation of privacy claim. Through the facts alleged in his Complaint, Jacqmin claims-at a

minimum-that by filming and photographing him in a manner that constitutes a HIPAA

violation, and then distributing the imagery to the public, Savilinx has placed him in a false light

2 Whether Jacqmin had an "objectively reasonable belief' can also be explored through discovery.

4
in the public eye. See Berthiaume's Est. v. Pratt, 365 A.2d 792, 795 (Me. 1976). Viewing the

facts in the light most favorable to Jacqmin, the factual allegations are sufficient to survive the

Motion to Dismiss. Savilinx' s Motion is denied as to Count II.

The counts in the second half of the Complaint are a different matter. Regarding these

counts, the Court plays more of a gatekeeper role. The Count III claim for intentional infliction of

emotional distress requires alleging facts establishing conduct that ''was so extreme and outrageous

as to exceed all possible bounds of decency and must be regarded as atrocious[] and utterly

intolerable in a civilized community." Davis v. Currier, 1997 ME 199, ,r 5, 704 A.3d 1207. "[I]t

is for the Court to determine in the first instance whether the defendant's conduct may reasonably

be regarded as so extreme and outrageous to permit recovery." Champagne v. Mid-Me. Med. Ctr.,

1998 ME 87, ,r 16, 711 A.2d 1086, 1090 (Me. 1995) (citing Colford v. Chubb Life Ins. Co. ofAm.,

687 A.2d 609, 616 (Me. 1996)). The facts pied in the Complaint come nowhere close to meeting

that standard. Employment discrimination is, unfortunately, commonplace. The nature of the

privacy violation alleged here is not extreme. As a matter oflaw, these allegations fall short of the

standard for actionable conduct necessary for a claim ofintentional infliction ofemotional distress.

See Argereow v. Weisberg, 2018 ME 140, ,r 28, 195 A.3d 1210. Furthermore, Jacqmin's factual

allegations do not place his emotional distress at a level where it could be characterized as "so

severe that no reasonable person could be expected to endure it." Id. ,r 29. Savilinx's Motion is

granted as to Count III.

Similarly, the Law Court has been parsimonious about extending the tort of negligent

infliction of emotional distress beyond bystander liability actions, and circumstances in which a

special relationship exists between the plaintiff and the alleged tortfeasor. See Curtis v. Porter,

2001 ME 158, ,r 19, 784 A.2d 18. This is not a bystander case. Further, the Complaint does not

5
allege any facts from which it could be found there was a "special relationship" between Jacqmin

and Savilinx. See Berry v. WorldWide Language Res., Inc., 716 F. Supp. 2d 34, 53 (D. Me. 2010)

(the employer-employee relationship does not qualify as a special relationship for NEID claims).

Accordingly, as a matter of law the allegations contained in the Complaint fail to establish the

necessary special relationship. Savilinx's Motion is granted as to Count IV.

CONCLUSION

For all the foregoing reasons, Savilinx' s Motion to Dismiss is denied as to Counts I and II,

and granted as to Counts III and IV. Counts III and IV are dismissed.

So Ordered.

The Clerk is instructed to enter this Order on the docket for this case by incorporating it by

reference. M.R. Civ. P. 79(a).

Dated: July 1, 2021

6
BCD-CIV-2021-37

SCOTT JACQMIN

Plaintiff(s)

v.

SAVILINX

Defendant(s)

Party Name: Attorney Name:

Scott Jacqmin Jeffrey Bennet, Esq.
Legal Ease LLC, PA
198 Maine Mall Road Box 15
South Portland, ME 04106

SaviLinx Daniel Rosenthal, Esq.
Marcus Clegg
16 Middle Street Suite 501
Portland, ME 04101-5166

ESPO, LLC David Hirshon, Esq.
GOODY, LLC Hirshon Law Group PC
TLNK, LLC PO Box 124
40 Regatta Drive
Freeport, ME 04032