Opinion
SUPERIOR COURT CIVIL ACTION Docket No. AP-14-008
11-10-2015
SANDRA SACCO, Petitioner v. TOWN OF NEW GLOUCESTER Respondent
STATE OF MAINE
CUMBERLAND, ss ORDER ON MOTION FOR SUMMARY JUDGMENT
Before the court is (1) respondent's motion for summary judgment on petitioner's amended complaint and (2) respondent's motion to strike lay opinion testimony in petitioner's opposition to summary judgment. For the following reasons, respondent's motion for summary judgment is granted in part and denied in part and its motion to strike lay opinion testimony is granted.
FACTS
Petitioner Sandra Sacco, age 59, began working for respondent Town of New Gloucester in 1988. (Pl.'s Addt'l S.M.F. ¶ 1.) She served as the Deputy Treasurer/Bookkeeper (bookkeeper) for the last seven years of her employment, until she resigned on November 25, 2013. (Pl.'s Addt'l S.M.F. ¶¶ 5, 28.) She anticipated retirement at age 64 or 65. (Pl.'s Addt'l S.M.F. ¶ 17.) She believed she had a right to continued employment and could only be terminated for just cause. (Pl.'s Addt'l S.M.F. ¶ 17.) The events leading to her resignation are the subject of this suit.
In her amended complaint, petitioner states that she served as the bookkeeper for the last ten years of her employment. (Am. Compl. ¶ 8.)
In October 2013, the Town Manager, Sumner Field, announced that he was retiring effective January 2, 2014. (Pl.'s Addt'l S.M.F. ¶ 7.) Mr. Field submitted a memorandum to the Chairman of the Board of Selectmen, Steve Libby, in which he suggested, among other things, that respondent Town hire a finance director. (Def.'s S.M.F. ¶¶ 3-4.) The parties dispute Mr. Field's motivation for submitting the memorandum. Respondent Town claims that Mr. Field submitted it in response to a request by the Board of Selectmen (Board) for input from employees regarding factors to consider in selecting a new town manager. (Def.'s S.M.F. ¶¶ 2-3.) Petitioner claims that Mr. Field submitted the memorandum prior to the Board's request. (Pl.'s Opp. S.M.F. ¶¶ 2-3.)
The Board held a meeting on November 4, 2013. (Pl.'s Addt'l S.M.F. ¶ 12.) At this meeting, Mr. Field requested that the Board go into executive session. (Def.'s S.M.F. ¶ 5.) The parties dispute the topic of discussion during the executive session. Petitioner asserts that the Board discussed reducing the bookkeeper's hours. (Pl.'s Opp. S.M.F. ¶¶ 5-6, 8-10, 12.) Respondent Town asserts that the Board discussed the creation of the finance director position and respondent Town's organizational structure and did not discuss reducing the bookkeeper's hours. (Def.'s S.M.F. ¶¶ 5-6, 8-10, 12.) The record does not include a transcript of the executive session.
When the Board came out of executive session, a motion was made to reduce the bookkeeper position from 40 hours per week to 24 hours per week and to hire an interim part-time finance director. (Def.'s S.M.F. ¶ 13.) As a result of the reduction in the bookkeeper's hours, the benefits for the position were eliminated. (Def.'s S.M.F. ¶ 19.) The reduction was scheduled to take effect in January 2014. (Def.'s S.M.F. ¶ 16.) Petitioner was not informed of the meeting and had no prior notice that her job duties would be a topic of discussion. (Pl.'s Addt'l S.M.F. ¶ 16.)
On November 5, 2013, Mr. Field informed petitioner of the Board's decision. (Pl.'s Addt'l S.M.F. ¶ 15.) Later that day, and again the next day, petitioner asked Mr. Field for a meeting with the Board. (Pl.'s Addt'l S.M.F. ¶ 19.) A meeting was never arranged. (Pl.'s Opp. S.M.F. ¶ 40.) Petitioner claims that Mr. Field told her he would arrange a meeting with Mr. Libby but never did. (Pl.'s Opp. S.M.F. ¶ 40.) Respondent Town claims that Mr. Field called Mr. Libby to arrange a meeting and informed petitioner that Mr. Libby would tell Mr. Field the meeting time. (Def.'s Reply to Pl.'s Addt'l S.M.F. ¶ 19.) The parties also dispute whether petitioner filed a grievance with the Board pursuant to respondent Town's personnel policy. Respondent Town claims that petitioner did not file a grievance. (Def.'s S.M.F. ¶¶ 47, 49.) Petitioner characterizes her attempts to meet with the Board as grievances and claims that Mr. Field thwarted them. (Pl.'s Opp. S.M.F. ¶ 49.)
Petitioner became very distressed about finances, health care coverage, and retirement. (Pl.'s Addt'l S.M.F. ¶ 18.) She sought medical help for stress, and her physician recommended that she be excused from work for two weeks. (Pl.'s Addt'l S.M.F. ¶ 20.) On November 11, 2013, petitioner gave Mr. Field a note from her physician excusing her from work. (Def.'s S.M.F. ¶ 25.) Petitioner was approved for a medical leave from November 11, 2013 to November 24, 2013. (Def.'s S.M.F. ¶ 27.)
While petitioner was on medical leave, Mr. Field became aware of issues regarding her work performance. (Def.'s S.M.F. ¶ 28.) Mr. Field drafted a memo to petitioner that outlined the issues he had discovered and informed her she was on probation for 60 days. (Def.'s S.M.F. ¶ 29.) Petitioner denies these work performance issues and claims Mr. Field fabricated them. (Pl.'s Opp. S.M.F. ¶ 28.) When petitioner returned to work on November 25, 2013, Mr. Field informed her that she was on probation. (Pl.'s Addt'l S.M.F. ¶ 25; Def.'s S.M.F. ¶ 31.) Petitioner mistakenly believed that she was being suspended without pay. (Pl.'s Addt'l S.M.F. ¶ 27.) She became upset and left work. (Pl.'s Addt'l S.M.F. ¶ 27.) Later that day, she sent an email to Mr. Field tendering her resignation. (Pl.'s Addt'l S.M.F. ¶ 28.) Mr. Field accepted her resignation that afternoon. (Def.'s S.M.F. ¶ 35.)
On December 2, 2013, the Board held a meeting and reversed its decision to reduce the bookkeeper's hours. (Pl.'s Addt'l S.M.F. ¶ 33.) Respondent Town then posted an announcement for applications for the bookkeeper position. (Pl.'s Addt'l S.M.F. ¶ 36.) The application deadline was December 26, 2013. (Pl.'s Addt'l S.M.F. ¶ 37.) The announcement did not include a specific time in the deadline. (Pl.'s Addt'l S.M.F. ¶ 37.) Petitioner was aware of the announcement and understood that she would have to apply for the position in order to get her job back. (Def.'s S.M.F. ¶ 53.)
On December 26, 2013, the Board held a meeting to discuss, among other things, whether to provide petitioner with a severance package. (Pl.'s Addt'l S.M.F. ¶ 39.) Petitioner attended the meeting and requested that respondent Town reinstate her to her former position. (Pl.'s Addt'l S.M.F. ¶ 41.) The Selectmen informed her that only the Town Manager could reinstate her. (Pl.'s Addt'l S.M.F. ¶ 41.) At 8:01pm on December 26, petitioner sent an email to Mr. Field and requested that he reinstate her. (Def.'s S.M.F. ¶ 57.) He responded that her letter, which he characterized as an application, was received after the deadline and would not be considered. (Pl.'s Addt'l S.M.F. ¶ 44.)
PROCEDURAL HISTORY
On February 7, 2014, petitioner filed her complaint against respondent Town. She alleged five causes of action: count I, Rule 80B review of the Town's actions; count II, violation of due process under 42 U.S.C. § 1983; count III, equitable estoppel; count IV, promissory estoppel; and count V, interference with prospective economic advantage. On March 13, 2014, the court granted petitioner's motion to join the independent claims with the Rule 80B action.
Respondent Town filed a motion to dismiss on March 20, 2014. On April 15, 2014, petitioner filed an opposition to the motion to dismiss as to counts I through IV and agreed to dismiss count V. On the same day, petitioner filed a motion to amend the complaint and an amended complaint, in which she added Mr. Field as a respondent. She reasserted count I, Rule 80B review, against respondent Town; count II, violation of due process under 42 U.S.C. § 1983, count III, equitable estoppel, and count IV, promissory estoppel, against both respondents; count V, interference with prospective economic advantage, against respondent Field; and added count VI, intentional infliction of emotional distress, and count VII, negligent misrepresentation, against both respondents. On April 22, 2014, petitioner filed a motion for a trial of the facts. M.R. Civ. P. 80B(d).
On October 1, 2014, the court granted petitioner's motion for a trial of the facts and motion to amend the complaint. The court granted respondents' motion to dismiss the complaint in part and dismissed counts III, IV, V, and VII of the amended complaint.
On July 15, 2015, respondent Town moved for summary judgment. On August 31, 2015, the parties stipulated to dismissal with prejudice of count VI as to both respondents and dismissal of count II as to respondent Field only. The remaining counts in the amended complaint are counts I and II against respondent Town only. On September 1, 2015, petitioner filed an opposition to respondent Town's motion for summary judgment. On September 11, 2015, respondent Town filed a reply to petitioner's statement of additional facts and moved to strike lay opinion testimony in petitioner's opposition.
Because the parties have dismissed petitioner's only tort claim, the court does not address respondent Town's argument that the Town is immune under the Maine Tort Claims Act. (Def.'s Mot. Summ. J. 18-19.)
Because the parties have dismissed all counts against Mr. Field, the court does not address respondent Town's argument that Mr. Field is entitled to discretionary function immunity. (Def.'s Mot. Summ. J. 17-18.)
DISCUSSION
1. MOTION FOR SUMMARY JUDGMENT
A. Standard of Review
Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c). "A material fact is one that can affect the outcome of the case[,]" and a genuine issue of material fact "exists when the factfinder must choose between competing versions of the truth." Dyer v. Dep't of Transp., 2008 ME 106, ¶ 14, 951 A.2d 821 (citation omitted). "Even when one party's version of the facts appears more credible and persuasive to the court, any genuine factual dispute must be resolved through fact-finding, regardless of the nonmoving party's likelihood of success." Estate of Lewis v. Concord Gen. Mut. Ins. Co., 2014 ME 34, ¶ 10, 87 A.3d 732.
B. Rule 80B Appeal
Petitioner challenges respondent Town's action under the Freedom of Access Act (FAA), 1 M.R.S. § 405, 30-A M.R.S. § 2605(4), and 30-A M.R.S. § 2606.
a) Trial of the Facts
Petitioner first argues that summary judgment is inappropriate because a trial of the facts has not occurred. (Pl.'s Opp'n to Def.'s Mot. Summ. J. 9-10.) The court granted petitioner's motion for a trial of the facts on October 1, 2014 and has not yet held the trial. The court is not precluded from deciding respondent's motion for summary judgment at this time. See Blumberg v. Town of Vassalboro, 2006 Me. Super. LEXIS 212, at *3 (Sept. 26, 2006) ("Although the town had earlier brought its motion for a trial of the facts, which was granted, this would not prevent the town from testing Blumberg's position by bringing the subsequent [summary judgment] motion supported by proper affidavits."); Cook v. Lisbon Sch. Comm. & Sch. Union No. 30, 1995 Me. Super. LEXIS 398, at *13-15 (Nov. 8, 1995) (granting defendants' motion for summary judgment while plaintiff's motion for a trial of the facts was pending).
In addition, any evidence required to substantiate petitioner's claims under sections 2605 and 2606 should have been discovered by petitioner by the time she responded to the motion for summary judgment. Discovery ended on September 20, 2014. Petitioner filed her response to the motion for summary judgment on September 1, 2014, and she made no request to conduct additional discovery before the motion was decided. For these reasons, the court will consider respondent's motion for summary judgment.
b) FAA, 1 M.R.S. § 405
Petitioner argues that respondent Town violated 1 M.R.S. § 405 by failing to notify her of, and provide her an opportunity to be heard at, the November 4 executive session and by failing to enter executive session at all times when the bookkeeper position was discussed at the November 18, December 2, and December 26 meetings due to these discussions' effect on her reputation and right to privacy. (Am. Compl. ¶ 42; Pl.'s Opp'n to Def.'s Mot. Summ. J. 11-14.) Respondent Town counters that petitioner's argument is rendered moot by the Board's December 2 decision to reverse its November 4 decision. (Def.'s Mot. Summ. J. 6-8.) The Town also argues that the Board's actions complied with section 405 because it voted to approve its decision during the public session and it did not need to notify petitioner of the November 4 meeting because she was not being charged or investigated. (Def.'s Reply Mot. Summ. J. 3; Def.'s Mot. Summ. J. 9.)
Respondent Town argues that petitioner raises her argument about the November 18, December 2, and December 26 meetings too late because this argument does not appear in her amended complaint. (Def.'s Reply Mot. Summ. J. 3.) Respondent Town's reliance on Burns v. Architectural Doors & Windows is misplaced because, in that case, the Law Court held that the Superior Court properly prevented the plaintiff from producing evidence at trial on causes of action not alleged in the complaint. 2011 ME 61, ¶¶ 21-22, 19 A.3d 823. Here, petitioner alleges additional facts consistent with the Rule 80B cause of action in her amended complaint. See 2 Harvey, Maine Civil Practice § 8:1 at 354 (3d ed. 2011) ("[T]he pleader is not bound by a particular theory if the complaint can reasonably be found to state another one.").
i. Mootness
A court may decide only a case that presents a justiciable controversy. Campaign for Sensible Transp. v. Me. Tpk. Auth., 658 A.2d 213, 215 (Me. 1995). A case does not present a justiciable controversy if the issue between the parties has become moot. Id. To determine whether the issue is moot, the court looks to "whether sufficient practical effects flowing from resolution of the litigation remain so as to justify applying limited judicial resources." Foster v. Bloomberg, 657 A.2d 327, 329 (Me. 1995).
Respondent Town is incorrect in its assertion that petitioner's claim is moot because respondent Town mischaracterizes the relief petitioner seeks. She recognizes that the December 2 decision restored the bookkeeper position to full time, and she seeks to be reinstated into that position. (Pl.'s Opp. S.M.F. ¶¶ 51, 53; Am. Compl. ¶ 47.) Petitioner has not been reinstated, and a resolution of this case in her favor could have that effect if the court reverses and remands the case to the Board and the Board or Town Manager orders reinstatement. In addition, petitioner challenges the Board's decision not to enter executive session on November 18, December 2, and December 26 as a violation of her privacy. This claim is not affected by the Board's decision to restore the bookkeeper position to full time. The Rule 80B appeal presents a justiciable controversy.
ii. Compliance with FAA, 1 M.R.S. § 405
The purpose of the FAA is to ensure that deliberations in public proceedings are conducted openly and to prevent "clandestine meetings" without "proper notice and ample opportunity" for public attendance. 1 M.R.S. § 401 (2014).
In line with this purpose, the FAA requires that all public proceedings be open to the public, and any exceptions to this requirement must be "narrowly construed." 1 M.R.S. § 403(1) (2014); Underwood v. City of Presque Isle, 1998 ME 166, ¶ 16, 715 A.2d 148. The Act does allow private executive sessions for:
A. Discussion or consideration of the employment, appointment, assignment, duties, promotion, demotion, compensation, evaluation, disciplining, resignation or dismissal of an individual or group of public officials, appointees or employees of the body or agency or the investigation or hearing of charges or complaints against a person or persons subject to the following conditions:
1 M.R.S. § 405(6)(A) (2014). "[A] public body charged with violating the terms of the FAA during an executive session has the burden of proving that its actions during the executive session complied with an exception to the FAA's opening meeting requirement." Underwood, 1998 ME 166, ¶ 19, 715 A.2d 148. A key factual dispute in this case is whether respondent Town discussed petitioner's employment and whether it was investigating her during the November 4 executive session. Mr. Field has asserted conflicting explanations for the reasons behind, and the content of, the executive session. (Pl.'s Opp. S.M.F. ¶¶ 10, 12.) Summary judgment is inappropriate because petitioner has raised an issue of material fact as to whether respondent Town complied with section 405 based on the content of the executive session and whether notice to petitioner was required.1) An executive session may be held only if public discussion could be reasonably expected to cause damage to the individual's reputation or the individual's right to privacy would be violated;
2) Any person charged or investigated must be permitted to be present at the executive session if that person so desires;
3) Any person charged or investigated may request in writing that the investigation or hearing of charges or complaints against that person be conducted in open session. A request, if made to the agency, must be honored; and
4) Any person bringing charges, complaints or allegations of misconduct against the individual under discussion must be permitted to be present.
Respondent Town argues further that because the reduction of the bookkeeper's hours took place in public session, petitioner has no grounds for appeal pursuant to section 409. Respondent Town's reliance on Cook v. Lisbon Sch. Comm. is misplaced because the plaintiff in that case sought review under 1 M.R.S. § 409, whereas petitioner seeks review under Rule 80B. 682 A.2d 672, 678 (Me. 1996). In Cook, plaintiff argued that the school committee violated section 405(6)(A) by discussing her employment in executive sessions without providing her the opportunity to attend these sessions. Id. The committee defended on the ground that it had not discussed allegations against plaintiff during the executive session. Id. The Law Court held that the dispute as to the content of discussion in the executive session was immaterial because section 409 allows the Superior Court to declare the committee action null and void only if the committee approves the action in the executive session, and there was no dispute that the committee had approved the dismissal during the public session. Id.
Despite the similarities between the two cases, the difference here is that petitioner challenges the Board's action under Rule 80B, which allows the Superior Court to affirm, reverse, modify, or remand a broad array of government action. M.R. Civ. P. 80B(c). This review is not confined to the narrower review under section 409 of whether the Board improperly approved the action in executive session. See M.R. Civ. P. 80B(a) (allowing review of any government action provided by statute or otherwise available by law). The fact that the Board did not approve the reduction in executive session is not fatal to this appeal.
c) 30-A M.R.S. § 2605(4) and 30-A M.R.S. § 2606
Petitioner argues that respondent Town violated 30-A M.R.S. § 2605(4), which prohibits conflicts of interest, and 30-A M.R.S. § 2606, which prohibits certain municipal appointments. (Am. Compl. ¶ 42.) She bases these claims on allegations that Mr. Field and Mr. Libby conspired to reduce the hours for the bookkeeper position and then to appoint Mr. Field as the finance director. (Pl.'s Opp'n to Def.'s Mot. Summ. J. 15.) Respondent Town counters that petitioner has not alleged facts to support these allegations. (Def.'s Mot. Summ. J. 10-11.)
Section 2605(4) makes voidable municipal proceedings involving negotiations or awards of contracts in which a party has a direct or indirect pecuniary interest. 30-A M.R.S. § 2605 (2014). "Direct or indirect pecuniary interest" is defined as:
In the absence of actual fraud, an official of a body of the municipality, county government or a quasi-municipal corporation involved in a question or in the negotiation or award of a contract is deemed to have a direct or indirect pecuniary interest in a question or in a contract where the official is an officer, director, partner, associate, employee or stockholder of a private corporation, business or other economic entity to which the question relates or with which the unit of municipal, county government or the quasi-municipal corporation contracts only where the official is directly or indirectly the owner of at least 10% of the stock of the private corporation or owns at least a 10% interest in the business or other economic entity.30-A M.R.S. § 2605(4). Petitioner argues the fact that Mr. Field and Mr. Libby worked together on Mr. Field's memo for weeks leading up to the executive session raises an inference that they were planning to appoint Mr. Field as the finance director. (Pl.'s Opp. S.M.F. ¶¶ 20-21.) In support of this assertion, she relies on Selectman Joshua McHenry's opinion that Mr. Field and Mr. Libby "orchestrated" a plan to reduce the bookkeeper's hours. (Pl.'s Opp'n to Def.'s Mot. Summ. J. 15.) Even if this were true, petitioner has not alleged that either Mr. Field or Mr. Libby has any relationship to a private corporation, business, or other economic entity related to any contract, a fact necessary to establish a pecuniary interest under section 2605(4). Plaintiff has not raised a genuine issue of material fact as to whether respondent Town violated 30-A M.R.S. § 2605(4).
Section 2606 provides:
No municipal officer, during the term for which that officer has been elected and for one year thereafter, may be appointed to any civil office of profit or employment position of the municipality, which was created or the compensation of which was increased by the action of the municipal officers during the officer's term.30-A M.R.S. § 2606 (2014). Although unclear, it appears petitioner argues that Mr. Field and Mr. Libby were planning to appoint Mr. Field to the finance director position, which would violate this statute because he participated in creating that position. (Pl.'s Opp'n to Def.'s Mot. Summ. J. 15.) Petitioner does not allege that Mr. Field was actually appointed to this or any other position. Respondent Town asserts that Mr. Field was not interested in assuming the finance director position, and that this position was never created. (Def.'s S.M.F. ¶ 20; Def.'s Mot. Summ. J. 10.) Even if Mr. Field and Mr. Libby "orchestrated the situation," there is no dispute as to whether Mr. Field was appointed to the finance director position. The record reflects he simply worked an additional six weeks as Town Manager at the Board's request. (Def.'s S.M.F. ¶ 61.) Petitioner has not raised a genuine issue of material fact as to whether respondent Town violated 30-A M.R.S. § 2606.
C. Section 1983 Claim
Petitioner claims that the Town violated her due process rights under 42 U.S.C. § 1983. (Am. Compl. ¶¶ 44-47.) That section provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .42 U.S.C. § 1983 (2012). Respondent Town argues that the Rule 80B appeal precludes her section 1983 claim because the Rule 80B appeal provides adequate review. (Def.'s Mot. Summ. J. 13-14.) Respondent Town also argues it did not violate petitioner's due process rights because she voluntarily resigned and because an exception to due process exists where a decision to affect employment is due to municipal reorganization. (Def.'s Mot. Summ. J. 12, 15.)
Petitioner counters that the Rule 80B appeal does not provide adequate review because a ruling in her favor would merely reverse respondent Town's failure to reinstate her and remand the matter back to respondent Town, while a ruling under section 1983 could provide damages. (Pl.'s Opp'n to Def.'s Mot. Summ. J. 19-20.) She claims that the Town's focus on her resignation ignores her argument that the Town deprived her of her alleged interest on multiple occasions: when she was demoted at the November 4 meeting, when her requests to meet with the Board were allegedly denied, and when she was allegedly compelled to resign due to the reduction in hours and benefits. (Pl.'s Opp'n to Def.'s Mot. Summ. J. 18-19.)
a. Adequate review
"[W]hen direct review is available pursuant to Rule 80B, it provides the exclusive process for judicial review unless it is inadequate." Gorham v. Androscoggin Cnty., 2011 ME 63, ¶ 22, 21 A.3d 115. In Gorham, the Law Court vacated dismissal of a section 1983 claim brought with a Rule 80B appeal. Id. ¶ 25. Gorham was suspended without pay in September 2009. Id. ¶ 4. In November 2009, the County Commissioners held a hearing, which Gorham attended, and voted to terminate Gorham's employment. Id. Gorham challenged the Superior Court's dismissal of his section 1983 claim, arguing that review of the hearing under the Rule 80B appeal would not be adequate because his suspension occurred before he had an opportunity to be heard. Id. ¶ 21. The Law Court agreed, noting that the record was unclear as to whether Gorham had an opportunity to oppose the suspension before it was imposed or an opportunity to address the suspension at the hearing. Id. ¶¶ 24-25.
Here, it is undisputed that petitioner did not have an opportunity to oppose the reduction in her hours. She was not informed that her hours would be discussed at the November 4 meeting, nor was she invited to attend the meeting. (Pl.'s Addt'l S.M.F. ¶ 16; Def.'s Reply to Pl.'s Addt'l S.M.F. ¶ 16.) Her requests to schedule a meeting with the Board were not met. (Pl.'s Opp'n to Def.'s S.M.F. ¶ 40.) It is true she did not file a grievance, but this grievance would have been simply an objection to the Board's failure to provide her with an opportunity to be heard.
In addition, a finding in petitioner's favor under her section 1983 claim could provide her with damages, a remedy that is not available in a Rule 80B appeal. See 42 U.S.C. § 1983 (providing for damages, fees, and costs); M.R. Civ. P. 80B(c) (allowing a court to "affirm, reverse, or modify the decision under review" or "remand the case to the governmental agency for further proceedings"); Polk v. Town of Lubec, 2000 ME 152, ¶ 10, 756 A.2d 510 (plaintiff may pursue damages under section 1983 in addition to a rehearing or grant of permit under Rule 80B); Kane v. Comm'r of Dep't of Health & Human Servs., 2008 ME 185, ¶ 32, 960 A.2d 1196 (affirming Superior Court's dismissal of section 1983 claim as duplicative of Rule 80C appeal in part because Kane sought same relief under both claims). Petitioner alleges damages as a result of the Board's decision to reduce her hours, including harm to her personal privacy and reputation due to considerable press coverage. (Am. Compl. ¶ 47; Pl.'s Addt'l S.M.F. ¶¶ 31-32.) This alleged harm would not be adequately remedied under the Rule 80B appeal and petitioner is entitled to bring her section 1983 claim.
b. Due process claim
A claim for a violation of due process requires a plaintiff to "show a deprivation of a constitutionally protected property or liberty interest." Mercier v. Town of Fairfield, 628 A.2d 1053, 1055 (Me. 1993). "Due process requires that a tenured public employee be given notice and an opportunity to be heard prior to termination." Moen v. Town of Fairfield, 1998 ME 135, ¶ 9, 713 A.2d 321. The hearing must give the employee "the opportunity to tell his or her side of the story and explain why termination should not occur." Id. If petitioner had a property interest, she may have been entitled to notice and a hearing before her hours were reduced. She has not established a property interest in continued employment, and her due process claim fails.
i. Notice and hearing
Respondent Town relies on Monahan v. Romney for its argument that due process was not required because petitioner voluntarily resigned. 625 F.3d 42, 47 (1st Cir. 2010). Monahan establishes that due process was not required if petitioner voluntarily resigned on November 25, but leaves open the questions of whether her resignation was truly voluntary and whether due process was required before the Board's November 4 decision to reduce her hours.
In that case, plaintiff, the former Chairman of the Massachusetts Civil Service Commission, sued Massachusetts Governor Mitt Romney and claimed a violation of his due process rights following his resignation from the Commission. Id. at 43. Plaintiff claimed that his resignation was involuntary because Governor Romney's staff had pressured him to resign. Id. at 46. The First Circuit affirmed the District Court's finding that Monahan voluntarily resigned and that, as a result, his due process claim "necessarily fails." Id. at 47. The court concluded that due process was not required even if the resignation was a result of "events set in motion by his employer[.]" Id. (quoting Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 173 (4th Cir. 1988)).
Petitioner claims her resignation was not voluntary because she felt compelled to resign. "[A] constructive discharge of a public employee without procedural due process constitutes an unconstitutional deprivation of property." Ryan v. City of Augusta, 622 A.2d 74, 76 (Me. 1993). "'Constructive discharge' usually describes harassment so severe and oppressive that staying on the job while seeking redress is intolerable." Bodman v. Me. Dep't of Health & Human Servs., 787 F. Supp. 2d 89, 109 (D. Me. 2011). Respondent Town argues that petitioner has not alleged facts that rise to this level. Petitioner argues that the record raises an inference that Mr. Field's "bad faith" compelled her to resign. (Pl.'s Opp'n to Def.'s Mot. Summ. J. 18-19.) Although unclear, it appears that petitioner bases her allegation of bad faith on her claim that Mr. Field reduced the bookkeeper's hours in order to create a finance director position for himself. Even if this were true, this allegation falls far short of raising a genuine issue of material fact regarding the "severe and oppressive" harassment required for a claim of constructive discharge.
Petitioner's claim that she was entitled to due process before the reduction in her hours has more merit. The United States District Court for the District of Maine has recognized that procedural due process requirements apply to changes short of termination. See Trafford v. City of Westbrook, 669 F. Supp. 2d 133, 144-46 (D. Me. 2009) (discussing whether the process afforded a demoted city employee was adequate). In Trafford, the plaintiff was demoted from lieutenant to firefighter and suspended without pay for one week. Id. at 138. The court held that due process was satisfied because Trafford received a letter notifying him that the fire chief was going to recommend that the city demote him, Trafford knew the basis for this recommendation, and a four hour disciplinary hearing, which Trafford attended, occurred before his demotion went into effect. Id. at 145.
Unlike in Trafford, petitioner was not provided notice or an opportunity to be heard prior to the reduction in her hours. If she had demonstrated a property interest, she likely would have a due process claim against respondent Town for reducing her hours without notice or a hearing. This claim would be further strengthened if, as she claims, Mr. Field thwarted her efforts to meet with the Board. (Pl.'s Opp'n to Def.'s S.M.F. ¶ 40.)
ii. Property interest
To be entitled to due process, the plaintiff must first establish a property interest in continued employment. Lynch v. Lewiston Sch. Comm., 639 A.2d 630, 632 (Me. 1994). A property interest in continued employment may be established by contract, statute, or "by proof of an objectively reasonable expectation of continued employment." Mercier, 628 A.2d at 1055. "The employee must show more than the mere need or desire for continued employment; rather, he must be able to point to existing law or rules, or mutual understandings, wherein his claims of entitlement are secured and may be supported." Hammond v. Temp. Comp. Review Bd., 473 A.2d 1267, 1272 (Me. 1984) (citation omitted). "It is commonly accepted doctrine that there is no general property right to a job at a particular salary in public employment." Id.
In Mercier, the plaintiff was the former Town Manager of Fairfield, who challenged the Town Council's failure to re-appoint him at its organizational meeting. 628 A.2d at 1054. To establish a reasonable expectation of continued employment, Mercier presented evidence of:
[B]oth his and the Council's stated intentions to create a contract for employment for an indefinite period, the Town's Charter provisions concerning just-cause termination, the routine annual reappointments that were effected without discussion, the positive evaluations of his performance issued by the Council in 1986 and 1988, the Council's urging Mercier to relocate to Fairfield to reflect his commitment to the Town, and a substantial salary increase in 1989.Id. at 1056. The Law Court determined that Mercier had presented sufficient evidence to establish a reasonable expectation of continued employment. Id.
In Krennerich v. Inhabitants of Bristol, the court concluded plaintiff had a reasonable expectation of continued employment. 943 F. Supp. 1345, 1353 (D. Me. 1996). Plaintiff stated in his affidavit that his contract was renegotiated to change his position to year-round employment, and he was hired with the understanding defendants "wanted [him] to stay indefinitely and [the] job was expected to continue indefinitely . . . It was agreed that [he] would be reviewed annually and terminated only for cause." Id.
In Durepos v. Town of Van Buren, the Law Court affirmed the Superior Court's judgment in favor of the Town of Van Buren and rejected plaintiff's claim that he was entitled to notice and a hearing before his termination. 516 A.2d 565, 566 (Me. 1986). Plaintiff was hired by the defendant in 1966 and promoted in 1973 to the position he held when terminated in 1982. Id. at 565. The court found that plaintiff had not established a reasonable expectation of continued employment where the dismissal "for cause" provisions under state law and in the town's personnel policy did not apply to plaintiff's dismissal for budgetary reasons. Id. at 566. Further, the record provided no basis for finding a justifiable expectation of continued employment. Id.
Here, petitioner asserts in her memorandum that she was a "tenured" employee. (Pl.'s Mot. Opp'n to Def.'s Mot. Summ. J. 3, 16.) Tenured public servants have a property interest in continued employment. Hammond, 473 A.2d at 1272. Petitioner does not identify any statute or contract that granted her tenure. Accordingly, she must show an objectively reasonable expectation of continued employment. Mercier, 628 A.2d at 1055; see also Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 55 (1st Cir. 1990) ("[L]ength of employment and good behavior, in and of themselves, customarily do not create a property interest in continued employment."). Petitioner states that she worked for respondent Town for 26 years and "believed she had a right to continued employment and could only be terminated for just cause." (Pl.'s Addt'l S.M.F. ¶ 17.) In her amended complaint, she asserts that she "continues to have a protected property interest in continued employment." (Am. Compl. ¶ 9.) In addition, she suggests that her retirement plans were based on her expectation of continued employment when she states that, prior to November 4, she and her husband planned to retire by age 64 or 65. (Pl.'s Addt'l S.M.F. ¶ 17.) These facts show that petitioner believed her employment would continue, but she identifies no "mutual understandings" between respondent Town and her that secure her claim of entitlement. Hammond, 473 A.2d at 1272. In contrast to the strong showing in Mercier, petitioner has failed to raise a genuine issue of material fact regarding an objectively reasonable expectation of continued employment. As a result, she has not alleged a cognizable due process claim.
Indeed, this court noted in its order on petitioner's motion to amend her complaint and respondent Town's motion to dismiss that "it is unclear what she alleges as the source of her property interest." (Order 10/1/14 8.)
c. Reorganization exception
When an employee is dismissed because of reorganization or other cost-cutting measures, a hearing is not required. Godin v. Machiasport Sch. Dep't Bd. of Dirs., 844 F. Supp. 2d 163, 169-70 (D. Me. 2012). The reorganization exception applies when the termination is in good faith, is directed at positions rather than individuals, and does not involve an evaluation of job performance. Id. at 170 (citation omitted).
The Town argues that the reorganization exception applies because its decision was in response to Mr. Field's memo about the Town Manager's responsibilities and the creation of a finance director position. (Def.'s Mot. Summ. J. 12-13.) Petitioner argues that there is insufficient evidence to show that respondent Town was "reorganizing" and that the record instead supports an inference that respondent Town based its decision on a discussion of petitioner's job performance during the executive session. (Pl.'s Opp'n to Def.'s Mot. Summ. J. 17-18.) The court agrees that the record contains insufficient evidence to conclude that respondent Town was "reorganizing" because the scope of the discussion during the executive session is unknown. As discussed, however, it is unnecessary to determine whether this exception applies because petitioner's due process claim fails.
2. MOTION TO STRIKE LAY OPINION TESTIMONY
Respondent Town argues that petitioner improperly relies on Mr. McHenry's opinion that Mr. Field and Mr. Libby "orchestrated" a plan to reduce the bookkeeper's hours in her opposition to respondent Town's motion for summary judgment. (Def.'s Mot. Strike 1; Pl.'s Opp. S.M.F. ¶¶ 17, 20-21.) "If a witness is not testifying as an expert, opinion testimony is limited to opinions that are: (a) Rationally based on the witness's perception; and (b) Helpful to clearly understanding the witness's testimony or to determining a fact in issue." M.R. Evid. 701. The lay witness's perception must be "adequately grounded on personal knowledge or observation . . . ." Mitchell v. Kieliszek, 2006 ME 70, ¶ 13, 900 A.2d 719 (citation omitted). "The judge has considerable discretion with respect to lay opinion." Field & Murray, Maine Evidence § 701.1 at 368 (6th ed. 2007).
Petitioner relies on Mr. McHenry's opinion to support her claims that respondent Town violated sections 2605 and 2606 and that she was constructively discharged. As discussed, petitioner has failed to raise a genuine issue of material fact regarding these issues. As a result, the motion to strike is largely moot. The court, nevertheless, concludes that Mr. McHenry's opinion does not meet the standard under Rule 701. Mr. McHenry admits that he cannot point to any personal knowledge or observation when he admits, "I got the sense that this was an orchestrated effort, but again, it was only a sense. I've never seen any actual evidence to support that sense." (Pl.'s Opp. S.M.F. ¶¶ 17, 20-21.) Therefore, the court grants respondent Town's motion to strike Mr. McHenry's lay opinion testimony.
CONCLUSION
As to count I, a genuine issue of material fact exists regarding the topic of discussion in the executive session on November 4, 2013. As to count II, petitioner has failed to show that she had a property interest in continued employment. Mr. McHenry's opinion that Mr. Field and Mr. Libby orchestrated a plan is not adequately grounded in his personal knowledge or observation.
The entry is
Respondent Town of New Gloucester's Motion for Summary Judgment is DENIED as to Count I of the Amended Complaint. Trial will proceed on Count I as narrowed by this Order.Date: November 10, 2015
Respondent Town of New Gloucester's Motion for Summary Judgment is GRANTED as to Count II of the Amended Complaint. Judgment is entered in favor of Respondent Town of New Gloucester and against Petitioner Sandra Sacco on Count II of the Amended Complaint.
Respondent Town of New Gloucester's Motion to Strike Lay Opinion Testimony is GRANTED.
/s/_________
Nancy Mills
Justice, Superior Court
JAMES CLIFFORD ESQ
CLIFFORD & CLIFFORD
62 PORTLAND RD
SUITE 37
KENNEBUNK ME 04043
MARK FRANCO ESQ
THOMPSON & BOWIE
PO BOX 4630
PORTLAND ME 04112-4630 ORDER ON MOTION TO AMEND COMPLAINT, MOTION TO DISMISS, AND MOTION FOR TRIAL OF FACTS
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 23, 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;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.
(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.
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.Date: 10·1·14
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.
/s/_________
Nancy Mills
Justice, Superior Court
MARK FRANCO ESQ
THOMPSON & BOWIE
PO BOX 4630
PORTLAND ME 04112-4630
JAMES CLIFFORD ESQ
CLIFFORD & CLIFFORD LLC
62 PORTLAND ROAD SUITE 37
KENNEBUNK ME 04043