Opinion
Civil Action AP-14-008
10-01-2014
SANDRA SACCO, Plaintiff v. TOWN OF NEW GLOUCESTER, Defendant
ORDER ON MOTION TO AMEND COMPLAINT, MOTION TO DISMISS, AND MOTION FOR TRIAL OF FACTS
Nancy Mills, Justice, Superior Court.
Before the court are the following motions: (1) plaintiff's motion to amend the complaint; (2) defendant's motion to dismiss plaintiff's complaint; and (3) plaintiff's motion for a trial of the facts.
BACKGROUND
Plaintiff alleges the following in the amended complaint. She began working for the Town of New Gloucester in 1988. (Am. Compl. ¶ 7.) Most recently, plaintiff served as the Deputy Treasurer/Bookkeeper for ten years until she resigned on November 25, 2013. (Am. Compl. ¶ 8.) The events leading up to and following plaintiff's resignation are the subject of this suit.
On November 4, 2013, the Selectmen for the Town of New Gloucester held a scheduled meeting at which the Selectmen decided to make plaintiff's position a part-time job at 24 hours per week and eliminate plaintiff's benefits. (Am. Compl. ¶ 13.) Plaintiff was not notified that the Selectmen would be discussing her position at the November 4 meeting. (Am. Compl. ¶ 17.) The Selectmen entered " executive session, " in which they decided to create an interim finance director position that would perform some of the duties plaintiff had been performing. (Am. Compl. ¶ 13.) The Selectmen planned to appoint the Town Manger, Sumner Field, who was due to retire on January 2, 2014, to the finance director position. (Am. Compl. ¶ 14.)
The day after the Selectmen meeting, the Town Manger informed plaintiff of the decision to reduce her hours and eliminate her benefits. (Am. Compl. ¶ 16.) On hearing the news, plaintiff became upset and distressed about her finances, health care coverage, and retirement expectations. (Am. Compl. ¶ 18.) Plaintiff became increasingly anxious during the next week and decided to seek medical advice. (Am. Compl. ¶ 19.) Plaintiff's doctor wrote a note on her behalf excusing her from work based on work-related stress and plaintiff was allowed FMLA leave from November 11 through November 24, 2013. (Am. Compl. ¶ 19.) During plaintiff's medical leave, the Town Manager wrote a memo describing plaintiff's poor job performance and stated any future examples of poor performance or negative attitude would result in her termination. (Am. Compl. ¶ 20.)
When plaintiff returned from leave on November 25, the Town Manager approached her with the memo he drafted and informed plaintiff that she was on " probation" for performance-related issues. (Am. Compl. ¶ ¶ 20, 22.) Plaintiff mistakenly believed that she was being suspended without pay. (Am. Compl. ¶ 24.) She became upset and left work. (Am. Compl. ¶ 24.) Later that day, plaintiff sent an email to the Town Manager and tendered her resignation. (Am. Compl. ¶ 25.) The Town Manager accepted her resignation on the same day. (Am. Compl. ¶ 26.)
On December 2, 2013, the Selectmen held a meeting at which they unanimously decided to reverse their November 4 decision to reduce the hours and benefits for the bookkeeper position. (Am. Compl. ¶ 27.) Selectman McHenry requested formal confirmation that the reversal of the November 4 decision brought " everything back to before the November 4 meeting." (Am. Compl. ¶ 28.) Plaintiff was not informed of the decision to restore the bookkeeper position to full time. (Am. Compl. ¶ 29.) Soon after December 2, the Town of New Gloucester posted the job opening for the bookkeeper position on its website. (Am. Compl. ¶ 30.) The deadline for applications was advertised as December 26, 2013 but no time deadline was specified. (Am. Compl. ¶ 30.)
On December 26, the Selectmen held a special meeting to discuss budget issues, including whether to provide plaintiff with a severance package. (Am. Compl. ¶ 31.) Plaintiff attended the meeting and asked the Selectmen to reinstate her to the bookkeeper position. (Am. Compl. ¶ 32.) The Selectmen informed plaintiff that only the Town Manager could reinstate her to her position. (Am. Compl. ¶ 32.) Later on December 26, plaintiff wrote to the Town Manger to request reinstatement. (Am. Compl. ¶ 33.) Plaintiff sent an email to the Town Manager on January 2, 2014, and requested a response to her letter. (Am. Compl. ¶ 34.) The Town Manager wrote a letter to plaintiff dated January 6, 2014 and stated plaintiff's application for the bookkeeper position was received after the deadline and her application would not be considered for the position. (Am. Compl. ¶ 35.) Plaintiff received this letter on January 7, 2014. (Am. Compl. ¶ 35.)
On January 13, counsel for plaintiff sent a letter to the Town Manger and sought clarification regarding the finality of the January 6 decision not to rehire plaintiff. (Am. Compl. ¶ 36.) On January 21 and 23r counsel for the town informed plaintiff's counsel that there was no further right of municipal review of the Town Manager's decision not to consider plaintiff for reinstatement or rehire and extended to plaintiff an offer of settlement. (Am. Compl. ¶ 37.) Plaintiff rejected the settlement offer on January 23, 2014.
PROCEDURAL HISTORY
Plaintiff filed her complaint for Rule 80B review and independent causes of action on February 7, 2014. On March 13, 2014, the court granted plaintiff's unopposed motion to join the independent claims with the Rule 80B action and issued an order specifying the future course of proceedings. On March 20, 2014, the court issued a scheduling order. Defendant filed a motion to dismiss the complaint on March 20, 2014. Plaintiff's opposition was filed April 15, 2014. On the same day, plaintiff filed a motion to amend her complaint. Defendant's opposition was filed May 5, 2014. On April 22, 2014, plaintiff filed a motion for a trial of the facts. M.R. Civ. P. 80B(d). Defendant's response was filed May 12, 2014.
DISCUSSION
1. MOTION TO AMEND COMPLAINT
Under M.R. Civ. P. 15(a), " [a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served." If a responsive pleading is not permitted, a party may amend a complaint as a matter of course " at any time within 20 days after it is served." Id. Otherwise, the party may amend only with leave of the court or by written consent of the adverse party. Id.
It is unclear whether a responsive pleading is permitted or required in this case because the Rule 80B claim has been joined with independent claims. No responsive pleading is required to the Rule 80B complaint. M.R. Civ. P. 80B(a). Rule 80B(i) is silent on the issue of a responsive pleading. Neither the order specifying the future course of proceedings nor the scheduling order required a responsive pleading.
If a responsive pleading is permitted, plaintiff is entitled to amend her complaint. See Kasu Corp. v. Blake, Hall & Sprague, Inc., 540 A.2d 1112, 1113 (Me. 1988). If a responsive pleading is not permitted, " leave shall be freely given when justice so requires." M.R. Civ. P. 15(a).
Although defendant argues that the amendment is futile because all counts of the amended complaint must be dismissed, the court concludes plaintiff's motion to amend will be granted. The court will consider defendant's arguments in the motion to dismiss and the opposition to the motion to amend the complaint to determine whether plaintiff's amended complaint should be dismissed.
2. MOTION TO DISMISS
On review of a motion to dismiss for failure to state a claim, the court accepts the facts alleged in plaintiff's complaint as admitted. Saunders v. Tisher , 2006 ME 94, ¶ 8, 902 A.2d 830. The court " examine[s] the complaint in the light most favorable to 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." Doe v. Graham , 2009 ME 88, ¶ 2, 977 A.2d 391 (quoting Saunders, 2006 ME 94, ¶ 8, 902 A.2d 830). " For a court to properly dismiss a claim for failure to state a cause of action, it must appear 'beyond doubt that [the] plaintiff is entitled to no relief under any set of facts that might be proven in support of the claim.'" Dragomir v. Spring Harbor Hosp., 2009 ME 51, ¶ 15, 970 A.2d 310 (quoting Plimpton v. Gerrard , 668 A.2d 882, 885 (Me. 1995)).
A. Rule 80B Complaint (Count I)
Defendant argues that plaintiff's Rule 80B claim is untimely. Under Rule 80B,
[t]he time within which review may be sought shall be as provided by statute, except that if no time limit is specified by statute, the complaint shall be filed within 30 days after notice of any action or refusal to act of which review is sought unless the court enlarges the time in accordance with Rule 6(b), and, in the event of a failure to act, within six months after expiration of the time in which action should reasonably have occurred.M.R. Civ. P. 80B(b). The parties dispute which of the town's actions is the subject of the Rule 80B appeal. Defendant argues plaintiff is challenging the decision by the Town Selectmen to reduce her hours. Plaintiff alleges she was entitled to reinstatement and therefore asks the court to review the decision not to rehire her. In the amended complaint, plaintiff requests review of the town's " [f]ailure to reinstate Petitioner to her former position after the reversal of action reducing her hours and terminating her benefits." (Am. Compl. ¶ 42(E).) The court evaluates whether plaintiff's claim is timely with regard to that action.
Plaintiff first argues this is a failure to act claim, which extends the time to file to six months. M.R. Civ. P. 80B(b). In plaintiff's amended complaint, she alleges the Town Manager refused to consider her application, which constitutes a failure to act. (Am. Compl. ¶ 35); see Lingley v. Me. Workers' Comp. Bd. , 2003 ME 32, ¶ 9, n.7, 819 A.2d 327 (if agency refuses to take any action, agency has refused to act). On January 21, 2014, the town confirmed its decision not to consider plaintiff's application would not be reviewed further. (Am. Compl. ¶ 37.) The refusal to consider plaintiff's application resulted in her not being reinstated but the town did not make a specific decision not to rehire plaintiff; the town refused to consider her application and later confirmed there was no further review available of the decision not to consider the application. Accordingly, plaintiff's complaint should have been filed " within six months after the expiration of the time in which action should reasonably have occurred." M.R. Civ. P. 80B(b).
Assuming, however, the thirty-day period applies, the final judgment rule renders the complaint timely. Counsel for plaintiff inquired on January 13, 2014 whether the Town Manager's decision constituted a final decision. As one commentator has explained:
It may not always be easy to determine the time when the administrative action being reviewed was 'final' so as to start the 30-day period running. In some cases, the Law Court has shown an intention to apply the time period for review of administrative action in a way that will accomplish substantial justice.Harvey, Maine Civil Practice 3, § 80B:3, page 439 (2011 ed.). Although final judgment is a requirement for judicial review, the requirement is " flexible enough to permit adaptation to special situations." Sawin v. Town of Winslow, 253 A.2d 694, 698 (Me. 1969). In this case, counsel for plaintiff clarified whether the Town Manager's decision was a final action and did not receive a response until January 21, 2014. On this date, plaintiff had notice the Town Manager's decision was a final action by the town and no further municipal review was available. The complaint was filed on February 7, 2014 and was therefore filed in a timely manner within 30 days. See Cumberland Vill. Hous. Assocs. v. Inhabitants of the Town of Cumberland , 605 F.Supp. 269, 273 (D. Me. 1985).
Plaintiff argues incorrectly that she was entitled to an additional three days to file because she received notice of the Town Manager's decision not to reinstate her by mail. See M.R. Civ. P. 6(c). Rule 6, however, concerns service by mail. Rule 80B is concerned not with service but the date on which plaintiff had notice. See M.R. Civ. P. 80B (" [T]he complaint shall be filed within 30 days after notice of any action . . . ."). Plaintiff had actual notice as of January 7, 2014. (Am. Compl. ¶ 35.)
B. Due Process Claim (Count II)
To succeed on her procedural due process claim, plaintiff must demonstrate she has " a property interest as defined by state law and . . . that the defendants, acting under color of state law, deprived [her] of that property interest without constitutionally adequate process." Godin v. Machiasport Sch. Dep't Bd. of Dirs ., 844 F.Supp.2d 163, 169 (D. Me. 2012). Plaintiff alleges she had a constitutionally protected property interest in her employment, defendants deprived her of her benefits and reduced her hours acting under color of state law, and she did not receive any notice or opportunity to be heard before or after the decision to reduce her hours and eliminate her benefits. (Am. Compl. ¶ ¶ 9, 13, 17, 29.)
Plaintiff also argues she alleges a substantive due process violation. Plaintiff has failed to allege conduct that is " truly outrageous, uncivilized, and intolerable" as required for a substantive due process claim. Gonzalez-Droz v. Gonzalez-Colon , 660 F.3d 1, 16, (1st Cir. 2011); see also Farris v. Poore , 841 F.Supp.2d 436, 441-42 (D. Me. 2012) (holding that allegations surrounding an improper termination decision were " insufficient to state a substantive due process claim").
" State and federal due process requirements are identical." Fichter v. Bd. of Envtl. Prot. , 604 A.2d 433, 436 (Me. 1992).
Under the exclusivity doctrine, " when . . . a municipality or agency's decision is reviewable pursuant to M.R. Civ. P. 80B . . . that process provides the 'exclusive process for judicial review unless it is inadequate.'" Antler's Inn & Rest., LLC v. Dep't of Pub. Safety, 2012 ME 143, ¶ 14, 60 A.3d 1248 (quoting Gorham v. Androscoggin County , 2011 ME 63, ¶ 22, 21 A.3d 115). " For example, due process claims alleging a failure to hold a public hearing or challenging the exclusion of evidence are not cognizable section 1983 claims when a Rule 80B process is available." Id. In this case, however, plaintiff alleges she " had a property right in continued employment [and was] entitled to notice and an opportunity to be heard before [she could] be deprived of that right." Gorham, 2011 ME 63, ¶ 23, 21 A.3d 115. An employee must have the opportunity to tell her side of the story. Id. Based on the allegations in the amended complaint, direct review pursuant to Rule 80B is not adequate. Id. ¶ 25.
Based on plaintiff's allegations, it is unclear what she alleges as the source of her property interest. An employee can have a property interest in continued employment by statute, contract, or an objective reasonable expectation of continued employment considering the circumstances. Defendant argues plaintiff's voluntary resignation ended any claim defendant deprived her of a property interest. See Monahan v. Romney , 625 F.3d 42, 47 (1st Cir. 2010). Plaintiff argues constructive discharge, a fact-intensive claim. See Lauck v. Campbell County, 627 F.3d 805, 812 (10th Cir. 2010) (Am. Compl. ¶ ¶ 13-25.) Examining the complaint in the light most favorable to plaintiff, it does not appear beyond doubt plaintiff is entitled to " no relief under any set of facts that might be proven in support of the claim." Dragomir, 2009 ME 51, ¶ ¶ 15, 970 A.2d 310 (quotations omitted). Accordingly, plaintiff has alleged a claim for a violation of due process under 42 U.S.C. § 1983.
There is an exception to due process requirements known as the " reorganization exception, " which comes into play " when the [action] at issue is in good faith directed at positions rather than individuals, and performance factors do not play a role . . . ." Godin, 844 F.Supp.2d at 170. Plaintiff alleges the reduction in her hours and elimination of her benefits was not in good faith. (Am. Compl. ¶ ¶ 43, 68.)
C. Equitable Estoppel (Count III)
" To prove equitable estoppel against a governmental entity, the party asserting it must demonstrate that (1) the governmental official or agency made misrepresentations, whether by misleading statements, conduct, or silence, that induced the party to act; (2) the party relied on the government's misrepresentations to his or her detriment; and (3) the party's reliance was reasonable." State v. Brown, 2014 ME 79, ¶ 14, A.3d . Plaintiff has failed to identify any misleading statements made by the town or the Town Manager. Although she argues she relied on the December 2, 2013 decision to reverse the November 4, 2013 vote, she alleges she had no notice of December 2 vote. (Am. Compl. ¶ 29.) Accepting the allegations in plaintiff's complaint as true, plaintiff has failed to allege a valid claim for equitable estoppel.
D. Promissory Estoppel (Count IV)
A claim for promissory estoppel against a municipality requires a party to first demonstrate the town itself made a promise or the town ratified the unauthorized promise of one of its agents or employees. Budge v. Town of Millinocket , 2012 ME 122, ¶ 23, 55 A.3d 484. Plaintiff has failed to identify a promise on which she relied. Plaintiff does not allege that the town or any town officer promised she would be reinstated. The vote to reinstate the bookkeeper position to full time does not constitute a promise to reinstate plaintiff to her former position. Accepting the allegations in plaintiff's complaint as true, plaintiff has failed to allege a valid claim for promissory estoppel.
E. Interference with Prospective Economic Advantage (Count V)
Plaintiff concedes that she has failed to state a claim for interference with prospective economic advantage against the town. In her amended complaint, she pursues the claim against Town Manager Field individually. " Tortious interference with a prospective economic advantage requires a plaintiff to prove: (1) that a valid contract or prospective economic advantage existed; (2) that the defendant interfered with that contract or advantage through fraud or intimidation; and (3) that such interference proximately caused damages." Rutland v. Mullen , 2002 ME 98, ¶ 13, 798 A.2d 1104. In this case, plaintiff alleges Mr. Field intentionally and fraudulently interfered with her prospective economic advantage. (Am. Compl. ¶ ¶ 65-66.) Because fraud is the basis of plaintiff's claim, she must demonstrate
(1) a false representation (2) of a material fact (3) with knowledge of its falsity or in reckless disregard of whether it is true or false (4) for the purpose of inducing another to act or to refrain from acting in reliance on it, and (5) the other person justifiably relies on the representation as true and acts upon it to the damage of the plaintiff.Sherbert v. Remmel , 2006 ME 116, ¶ 4 n.3, 908 A.2d 622.
" The complaint must allege facts with sufficient particularity so that, if true, they give rise to a cause of action; merely reciting the elements of a claim is not enough." America v. Sunspray Condo. Assoc. , 2013 ME 19, ¶ 13, 61 A.3d 1249. " In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." M.R. Civ. P. 9(b). Plaintiff's complaint merely recites the elements of the claim and she has failed to plead fraud with particularity, including identifying any alleged false representation. Accepting the allegations in plaintiff's complaint as true, plaintiff has failed to allege a valid claim for interference with prospective economic advantage.
F. Intentional Infliction of Emotional Distress (Count VI)
A claim for intentional infliction of emotional distress requires a plaintiff to demonstrate:
(1) the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from her conduct;
(2) the conduct was so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious, utterly intolerable in a civilized community;
(3) the actions of the defendant caused the plaintiff's emotional distress; and
(4) the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it.Curtis v. Porter , 2001 ME 158, ¶ 10, 784 A.2d 18 (quotation marks omitted). Plaintiff alleges the intentional collusion between the Town Manager and the Town Selectmen to reduce plaintiff's hours, terminate her benefits, and not reinstate her to her position caused her severe emotional distress. (Am. Compl. ¶ ¶ 40, 68.) Plaintiff's distress required her to seek medical attention and go on medical leave. (Am. Compl. ¶ 19.) " Elements of intent and the extreme and outrageous nature of the alleged conduct are questions of fact for the jury." Gurski v. Culpovich, 540 A.2d 764, 767 (Me. 1988). Count VI of the complaint will not be dismissed.
Plaintiff's remaining counts may not be actionable based on immunity pursuant to the Maine Tort Claims Act and based on Maine's Workers' Compensation Act. As defendant recognizes, however, these defenses will require record evidence that is not yet before the court. (Def.'s Opp. to Pl.'s Mot. to Am. Compl. 5-6 n.1; 7 n.4.)
G. Negligent Misrepresentation (Count VII)
Maine follows the Restatement (Second) of Torts definition for the tort of negligent misrepresentation:
One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.St. Louis v. Wilkinson Law Offices, P.C. , 2012 ME 116, ¶ 18, 55 A.3d 443. As with plaintiff's claim for interference with prospective economic advantage, plaintiff has failed to allege an actionable misstatement. Accepting the allegations in plaintiff's complaint as true, plaintiff has failed to allege a valid claim for negligent misrepresentation.
3. MOTION FOR TRIAL OF FACTS
Plaintiff is entitled to a trial of the facts on the allegations in count I of her complaint. Under Rule 80B(d), plaintiff is not required to move for a trial of the facts on her independent claims. Baker's Table, Inc. v. City of Portland , 2000 ME 7, ¶ 11, 743 A.2d 237. These claims are governed by Rule 16. M.R. Civ.P. 16; see Orders dated 3/13/14 & 3/20/14.
Although unclear, defendant does not appear to object to a trial of the facts on this count. (Def.'s Response to Pl.'s Mot. for Trial of Facts 2.)
The entry is
Defendant's Motion to Dismiss is granted in part and denied in part as follows: Counts III, IV, V, and VII of Plaintiff's Amended Complaint are DISMISSED. Counts I, II, and VI of Plaintiff's Amended Complaint are NOT DISMISSED.
Plaintiff's Motion to Amend Complaint is GRANTED.
Plaintiff's Motion for Trial of the Facts is GRANTED on Count I of the Amended Complaint