BOUCHER v. LEWISTON SCHOOL COMMITTEE

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

PAMELA BOUCHER, )

)

Plaintiff, )

)

v. ) Docket No. 2:21-cv-00273-NT

)

LEWISTON SCHOOL COMMITTEE, )

et al., )

)

Defendants. )

ORDER ON DEFENDANTS’ MOTION TO DISMISS

Before me is the Defendants’ motion to dismiss for failure to state a claim (ECF

No. 8). For the reasons stated below, the motion is GRANTED IN PART and

DENIED IN PART.

FACTUAL BACKGROUND1

The Plaintiff, Pamela Boucher, is a Maine resident who was formerly employed

by one of the Defendants, the School Committee of the City of Lewiston, Maine (the

“School Committee”). Compl. ¶¶ 1, 6 (ECF No. 1). The School Committee is the

organization charged with oversight and management of the Lewiston schools.

Compl. ¶ 5. Boucher began working for the School Committee as a Home School Social

Worker in 2012; in 2014, she became the District Clinical Supervisor. Compl. ¶ 6. In

1 The following facts are drawn from the allegations contained in the Plaintiff’s Complaint,

which I must accept as true for the purpose of evaluating the motion to dismiss, see Alston v. Spiegel,

988 F.3d 564, 571 (1st Cir. 2021), and from the documents incorporated therein.

July of 2016, Boucher was appointed as the Director of Special Education, the position

she held until her employment ended in 2021. Compl. ¶¶ 6, 59.

In November of 2019, Boucher and the School Committee entered into a

contract for the term beginning July 1, 2019 and ending June 30, 2022. Compl. Ex. 1

(ECF No. 1-1). In June of 2020, Boucher and the School Committee entered into

another contract for the term beginning July 1, 2020 and ending June 30, 2023.

Compl. Ex. 2 (ECF No. 1-2). Aside from a salary increase, the terms of the 2019

contract and 2020 contract are materially identical. Compl. Exs. 1, 2. Both contracts

contain a provision stating that the contract “may be terminated by mutual consent

at any time and may be terminated by the School Committee for cause as provided

by statute.” Compl. Exs. 1, 2.

According to Boucher, her tenure as Director of Special Education was a

tumultuous one due to what she perceived as the School Committee’s disregard of its

duty to provide special education services to its students. On several occasions that

she describes in her Complaint, Boucher clashed with administrators over issues such

as the wrongful exclusion of a student from Lewiston High School, the provision of

services to students with autism, the lack of transparency in the budgeting process,

and an organizational structure that gave principals/administrators authority over

special education supervisors. Compl. ¶¶ 17, 28, 29, 31, 38.

Over the course of her employment, Boucher received some critical feedback

about her performance. In July of 2017, Boucher received her first and only formal

performance review, which was “highly complimentary of [her] skills and rated her

performance effective.” Compl. ¶ 22. The following month, however, an addendum

was issued to Boucher’s performance evaluation based on “anecdotal information”

from exit interviews with general and special education staff that identified negative

criticisms of Boucher’s performance. Compl. ¶¶ 23–24. The Superintendent at the

time, William Webster, promised Boucher that the performance addendum would not

negatively impact her position, but asked that Boucher work with a job coach. Compl.

¶ 24. After Boucher worked with the job coach selected by Webster for over five

months, the coach issued a report that was “highly complimentary of Boucher’s skills

and leadership.” Compl. ¶ 25.

In 2018, rather than conduct a formal performance review, the Assistant

Superintendent prepared a memorandum titled “Concerns” (the “concerns

memorandum”) that, according to Boucher, “criticized Boucher for interactions

arising out of her efforts to ensure compliance with special education law and pointed

to untrue criticism by staff.” Compl. ¶ 32. Boucher viewed the concerns memorandum

as “retaliation” for her clashes with staff and administrators over special education

services and the budgeting process. Compl. ¶ 33. Still, in response to the concerns

memorandum, Boucher reached out to her job coach and initiated additional work

with him. Compl. ¶ 34.

In 2020, the then-Superintendent, Todd Finn, engaged private consultants to

conduct a review of the special education department—a move that Boucher

perceived as “retaliation” for her complaints regarding the Lewiston schools’

practices. Compl. ¶¶ 37, 41. Boucher felt that the resulting report unfairly maligned

the special education department for issues that were out of her control. Compl.

¶¶ 44–45.

Defendant K. Jake Langlais became Superintendent of the Lewiston schools in

the summer of 2020. Compl. ¶ 49. On August 19, 2021, Langlais requested a meeting

with Boucher. Compl. ¶ 57. At that meeting, Langlais informed Boucher that the

School Committee was terminating her employment by the end of the day unless she

resigned. Compl. ¶ 57. When Boucher objected that she had a contract, Langlais

responded that “the contract was ‘not worth the paper it was written on.’ ” Compl. ¶

57. Langlais gave Boucher until the end of the following day to make her decision.

Compl. ¶ 57. The same day that they met, Langlais sent Boucher a letter stating:

Following up on our conversation this afternoon, I have come to the

conclusion that it is time to part ways based on unsatisfactory

performance and not fulfilling the duties of your position.

Acting with the authority of the Lewiston Public Schools’ School

Committee and following the terms of the management contract issued

to you on June 30, 2020, your employment will be terminated effective

August 21, 2021 due to issues cited above. As I mentioned in our

conversation, I am willing to accept your resignation in lieu of

termination. Please let me know if this is the way you would like to

proceed with a resignation or if there is anything further you wish to

share by the end of day August 20, 2021.

Compl. ¶ 58. Boucher refused to resign, and her employment was terminated on

August 21, 2021. Compl. ¶ 59.

On August 24, 2021, Boucher, through counsel, requested a copy of her

personnel file from the School Committee. Compl. ¶ 60. A little over two weeks later,

on September 9, 2021, Langlais wrote a letter (the “Reinstatement Letter”) to

Boucher announcing that Boucher would be given a School Committee hearing

“before a final decision is made regarding termination of employment.” Mot. to

Dismiss (“MTD”) Ex. A (ECF No. 8-1).2 Langlais wrote that the hearing was

scheduled for September 20, 2021, and that he would “share information with the

School Committee in support of [his] recommendation to end [her] employment.”

MTD Ex. A. He also told Boucher that she would have “the opportunity to attend the

hearing, and to present witnesses, written documents and other evidence for the

School Committee’s consideration.” MTD Ex. A. The Reinstatement Letter explained

that, “[c]onsistent with the decision to provide [Boucher] an opportunity for a School

Committee hearing,” Boucher’s employment was reinstated, with compensation and

benefits retroactive to August 21, 2021. MTD Ex. A. Boucher does not allege that she

attended the hearing and states in her Complaint that “any hearing would have been

a sham.” Compl. ¶ 64.

On September 20, 2021, the same day that the hearing was to take place,

Boucher filed a complaint in this court against Langlais and the School Committee

(together, the “Defendants”) alleging breach of contract (Count I), failure to pay

wages in violation of 26 M.R.S. § 626 (Count II), violation of the implied covenant of

2 “Ordinarily, [on a motion to dismiss,] any consideration of documents not attached to the

complaint, or not expressly incorporated therein, is forbidden, unless the proceeding is properly

converted into one for summary judgment under [Federal Rule of Civil Procedure] 56.” Watterson v.

Page, 987 F.2d 1, 3 (1st Cir. 1993). “However, courts have made narrow exceptions for documents the

authenticity of which are not disputed by the parties; for official public records; for documents central

to plaintiffs’ claim; or for documents sufficiently referred to in the complaint.” Id.; see also In re Fin.

Oversight & Mgmt. Bd. for P.R., 979 F.3d 10, 17 (1st Cir. 2020). In this case, although it was not

attached to Boucher’s Complaint, I may consider the full text of the September 9 letter because it is

incorporated by reference into paragraphs 62 and 63 of the Complaint.

good faith and fair dealing (Count III), and § 1983 claims alleging violations of

Boucher’s procedural due process rights (Counts IV and V).

LEGAL STANDARD

The Defendants’ motion to dismiss invokes Federal Rule of Civil Procedure

12(b)(6). When evaluating a motion to dismiss, I take “as true all well-pleaded facts

alleged in the complaint and draw all reasonable inferences therefrom in the pleader’s

favor.” Alston v. Spiegel, 988 F.3d 564, 571 (1st Cir. 2021) (quoting Santiago v. Puerto

Rico, 655 F.3d 61, 72 (1st Cir. 2011)). “[A] complaint will survive a motion to dismiss

when it alleges ‘enough facts to state a claim to relief that is plausible on its face.’ ”

Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is

“plausible” if the facts alleged give rise to a reasonable inference of liability. Id.

“Plausible” means “more than merely possible.” Germanowski v. Harris, 854 F.3d 68,

71 (1st Cir. 2017) (quoting Schatz v. Republican State Leadership Comm., 669 F.3d

50, 55 (1st Cir. 2012)).

DISCUSSION

I. Federal Procedural Due Process Claims

Section 1983 of the Civil Rights Act confers upon every United States citizen a

right of redress against any person who, acting under color of state law, causes a

deprivation of “rights, privileges, or immunities secured by the Constitution and

laws” of the United States. 42 U.S.C. § 1983. “[T]o make out a viable section 1983

claim, a plaintiff must show both that the conduct complained of transpired under

color of state law and that a deprivation of federally secured rights ensued.” Godin v.

Machiasport Sch. Dep’t Bd. of Dirs., 831 F. Supp. 2d 380, 385 (D. Me. 2011) (quoting

Santiago, 655 F.3d at 68). In this case, Boucher’s § 1983 claim asserts that she had a

constitutionally protected property interest in her employment, and that the

Defendants violated her right to due process of law by acting without cause and by

failing to provide notice and an opportunity to be heard. Compl. 18–19.

The First Circuit “consistently has held that an employee who under state law

can be terminated only for ‘just cause’ has a constitutionally protected property

interest in his employment.” Whalen v. Mass. Trial Ct., 397 F.3d 19, 24 (1st Cir. 2005).

Here, Boucher’s contracts provide that she “may be terminated . . . for cause as

provided by statute.” Compl. Exs. 1, 2. At this stage, the Defendants assume without

conceding that Boucher had a property interest in her continued employment with

the School Committee. MTD 6. The Defendants argue instead that Boucher’s

procedural due process claim should fail because (1) she was still employed by the

School Committee at the time she filed her Complaint, and thus there was no

deprivation of her rights, and (2) the facts established in the Complaint and

incorporated documents establish that she was provided sufficient process. MTD 6–

10.

I reject the Defendants’ first line of attack — that Boucher was still employed

by the School Committee at the time she filed her Complaint — because Boucher

plausibly asserts that her employment was terminated on August 21, 2021. Although

Langlais sent Boucher a letter on September 9, 2021, purporting to reinstate

Boucher’s employment with back pay, Boucher’s complaint asserts that Langlais had

already terminated Boucher’s employment on August 21, and that the Reinstatement

Letter was merely an “attempt[ ] to reinstate Boucher’s employment.” Compl. ¶¶ 59,

62, 64. While the Defendants contend that I cannot consider Boucher’s claim that she

refused the reinstatement because it is not alleged in the Complaint but only offered

in her opposition to the Motion to Dismiss, it is reasonable to infer from the facts that

are alleged in the Complaint that Boucher did not agree to the reinstatement.

I thus consider the Defendant’s second line of attack, that is, whether Boucher

was afforded sufficient process. Where a public employee has a property interest in

continued employment, the employer must provide some process prior to depriving

the employee of her property interest. Cleveland Bd. of Educ. v. Loudermill, 470 U.S.

532, 542 (1985). That pre-termination process “need not be elaborate.” Id. at 545. “The

essential requirements of due process . . . are notice and an opportunity to respond.”

Id. at 546. “The standard the defendant must meet . . . is not high.” Chmielinski v.

Massachusetts, 513 F.3d 309, 316 (1st Cir. 2008). The employer need only provide the

employee “oral or written notice of the charges against [her], an explanation of the

employer’s evidence, and an opportunity to present [her] side of the story.”

Loudermill, 470 U.S. at 546.

In this case, Boucher claims that Langlais announced the School Committee’s

decision to terminate Boucher’s employment in the meeting on August 19. Compl.

¶ 57. Langlais offered Boucher the opportunity to resign and gave her until the end

of the following day, August 20, to make her decision. Compl. ¶ 57. Langlais sent

Boucher a letter shortly after the meeting that restated the Defendants’ intent to

terminate Boucher, explained that the decision to terminate Boucher was “based on

unsatisfactory performance and not fulfilling the duties of your position,” and asked

Boucher to let Langlais know if she “would like to proceed with a resignation or if

there is anything further you wish to share by the end of day August 20, 2021.”

Compl. ¶ 58.

The Defendants assert that Langlais’ actions on August 19 constitute sufficient

process: Boucher was “offered notice of the [termination] decision, the basis for it, and

the opportunity to comment before it was final, which is all that is required under the

Due Process Clause.” MTD 6–7. The Defendants cite to O’Neill v. Baker, 210 F.3d 41

(1st Cir. 2000) to emphasize just how little notice and opportunity to respond is

constitutionally required. MTD 7. In that case, the First Circuit held that a pre-

termination hearing satisfied due process even though the plaintiff was not

specifically told that the hearing was a termination meeting, and the employer sent

the termination letter prior to the hearing. O’Neill, 210 F.3d at 48–49. But O’Neill,

which was decided at the summary judgment stage, is distinguishable from the

instant case in several important respects.

First, the plaintiff in O’Neill had faced disciplinary actions on three occasions

prior to her final termination due to her chronic absenteeism, and on each of those

occasions she had been provided notice that failure to improve her attendance could

lead to termination. Id. at 48. Second, O’Neill received notice that her employer was

holding a hearing and was “told the meeting was about her attendance and

‘[c]ontemplated [a]ction.’ ” Id. She was also told that she had a right to have a union

representative present “[d]ue to the nature of the meeting,” and the hearing was

continued to allow her to make arrangements for the union representative to join. Id.

at 45. Although O’Neill was not specifically told prior to the hearing that the meeting

was for the purpose of terminating her employment, the writing was on the wall,

given that she had previously been warned that termination was a possible

consequence of failing to improve her attendance. Id. at 48. Third, at the meeting

itself, it was explained that the reason for the termination was the plaintiff’s

absenteeism, and “the charges were clearly laid out” in detail. Id. Fourth, O’Neill was

provided “an opportunity to give her side of the story” at the pre-termination hearing,

and “[s]he had also been given the opportunity to respond” when each of the prior

disciplinary actions took place. Id. Fifth, although the employer inadvertently sent

the termination letter prior to the pre-termination hearing, it was uncontested that

the employer “would have ‘reconsidered whether there was just cause to discharge

[O’Neill]’ if O’Neill had offered ‘compelling reasons indicating that the contemplated

discharge was unwarranted.’ ” Id. at 49.

Here, by contrast, Boucher claims that she was given negative feedback about

her performance on only two prior occasions, and she was not told on either of those

occasions that she could be terminated if she failed to improve. In fact, the first time

she received negative criticism, she was specifically told that the feedback would not

affect her position, and after working with a job coach on the performance issues, she

received positive feedback. Compl. ¶¶ 24, 25. Second, the facts alleged in Boucher’s

complaint allow an inference that Langlais called the termination meeting without

advance warning and with no indication of what the meeting was about. Compl. ¶ 57.

Third, according to Boucher, the explanation for her termination was only provided

in the follow-up letter sent by Langlais after the meeting, and even that explanation

provided no detail as to the specific reasons for Boucher’s termination. Compl. ¶¶ 57–

58. Fourth, although the follow-up letter asked Boucher to let Langlais know “if there

is anything further you wish to share,” Boucher was given less than a day to prepare

a response. Finally, the letter did not specify that additional information provided by

Boucher could change the outcome of the termination decision. See Compl. ¶ 58.

Indeed, given that Boucher’s choice at that point was to resign or be terminated, it is

reasonable to infer that Boucher was not being given a meaningful opportunity to

respond.

The Defendants argue that, even if the pre-termination process was not

sufficient by itself, “Loudermill teaches that the need for pre-termination process is

lessened where more extensive post-termination process exists.” MTD 7. Here, the

Reinstatement Letter indicates that Boucher was offered extensive post-termination

process: she was offered a hearing with the School Committee where she could

present witnesses and written documents as evidence; she was given eleven days to

prepare for the hearing; and she was offered retroactive pay and benefits prior to the

hearing. MTD Ex. A.

I am not convinced, however, that Loudermill stands for the proposition that

extensive post-termination process necessarily cures the constitutional deficiencies of

a pre-termination process. Rather, Loudermill held that the pre-termination process

must, at the very least, provide the employee “oral or written notice of the charges

against [her], an explanation of the employer’s evidence, and an opportunity to

present [her] side of the story.” 470 U.S. at 546. Whether additional requirements

are necessary to satisfy due process may depend on “the nature of the subsequent

proceedings,” but those basic requirements of pre-termination process must always

be met. See id. at 545 (quoting Boddie v. Connecticut, 401 U.S. 371, 378 (1971)); see

also Jones v. City of Boston, 752 F.3d 38, 57 (1st Cir. 2014) (“When a state employee

in the ordinary course terminates another employee who has a property interest in

his or her job, the state normally cannot satisfy due process solely through post-

termination process.”); Cotnoir v. Univ. of Me. Sys., 35 F.3d 6, 12–13 (1st Cir. 1994)

(“[E]ven where a discharged employee receives a post-termination hearing to review

adverse personnel action, the pretermination hearing still needs to be extensive

enough to guard against mistaken decisions, and accordingly, the employee is entitled

to notice, an explanation of the employer's evidence, and an opportunity to present

his side of the story.”).

Here, Boucher has plausibly alleged that the pre-termination process did not

satisfy the basic requirements of due process. On the facts alleged, she was given no

notice that her job might be in danger, was not given an explanation of Langlais’

evidence, was not explicitly provided a meaningful pre-termination opportunity to

present her side of the story, and was told that her contract was not worth the paper

that it was written on. It is not completely clear to me, at this early point in the

proceedings, how Boucher’s decision not to proceed with the post-termination process

will ultimately affect this litigation. The parties talk past each other on this point

with the Defendants insisting that Boucher was not terminated because of the later

offer to reinstate and with the Plaintiff asserting that any post-termination

proceeding would have been a sham. What is clear is that on these facts, at the motion

to dismiss stage, I cannot say that the extensive post-termination process offered to

Boucher cured the constitutional deficiencies of the pre-termination process.

A. Count V – The School Committee’s Liability

As the Defendants concede, municipal entities, such as school committees, are

“persons” who can be held liable for civil rights violations pursuant to § 1983. See

MTD 10 (citing Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658, 690

(1978)). However, “Congress did not intend municipalities to be held liable unless

action pursuant to official municipal policy of some nature caused a constitutional

tort.” Monell, 436 U.S. at 691. “[A] municipality cannot be made liable by application

of the doctrine of respondeat superior.” Pembaur v. City of Cincinnati, 475 U.S. 469,

478 (1986). Municipal liability “is limited to acts that are, properly speaking, acts ‘of

the municipality’—that is, acts which the municipality has officially sanctioned or

ordered.” Id. at 480. A municipality may be held liable for even a single instance of

misconduct perpetrated by a government officer if that officer has final policymaking

authority. See City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (“[A]n

unconstitutional governmental policy could be inferred from a single decision taken

by the highest officials responsible for setting policy in that area of the government’s

business.”); Welch v. Ciampa, 542 F.3d 927, 942 (1st Cir. 2008) (“Although liability

may not be imposed on a municipality for a single instance of misconduct by an official

lacking final policymaking authority, it is plain that municipal liability may be

imposed for a single decision by municipal policymakers under appropriate

circumstances.” (internal citation and quotation marks omitted)).

“Whether a person is an authorized policymaker for purposes of assigning

municipal liability is a question of state law.” Craig v. Me. Sch. Admin. Dist. #5, 350

F. Supp. 2d 294, 296 (D. Me. 2004). Here, Boucher concedes that Maine law does not

assign final policymaking authority to the Superintendent. Yet, even where state law

does not explicitly assign policymaking authority to the decisionmaker, municipal

liability may be established if that authority has been delegated to the decisionmaker.

See Putnam v. Reg’l Sch. Unit 50, No. 1:14-cv-00154-JAW, 2015 WL 5440783, at *19

(D. Me. Sept. 15, 2015). And, regardless of whether the decisionmaker possesses final

policymaking authority, a municipality can be held liable if it ratifies the

decisionmaker’s actions. Craig, 350 F. Supp. 2d at 297. Boucher argues that the

School Committee can still be held liable for Langlais’ actions on either a delegation

or ratification theory. Pl.’s Opp’n to Defs.’ MTD 15–18 (ECF No. 13).

With regard to employment decisions, “[t]he mere fact” that a superintendent

“had discretionary and final authority to make the decision in question does not

necessarily mean that he was a ‘policymaker’ with respect to that decision.” Craig,

350 F. Supp. 2d at 297 (quoting Krennerich v. Inhabitants of Bristol, 943 F. Supp.

1345, 1356 (D. Me. 1996)). “To demonstrate that a superintendent possesses final

policymaking authority, a plaintiff must establish that the [municipal entity] in fact

specifically delegated its authority in this area.” Putnam, 2015 WL 5440783, at *19.

Thus, to survive a motion to dismiss, the Plaintiff must plausibly allege that the

municipal entity “specifically delegated its policymaking functions to” the

Superintendent. See Craig, 350 F. Supp. at 297 & n.2 (granting a motion to dismiss

where the plaintiff did not allege that the school board “specifically delegated its

policymaking functions to” the superintendent); Charette v. Me. Sch. Admin. Dist. No.

27, No. Civ.05-20-B-W, 2005 WL 914763, at *4 (D. Me. Jan. 31, 2005) (denying a

motion to dismiss because, unlike in Craig, the plaintiff “allege[d] that it is the

[municipal entity’s] custom and usage to place final policymaking authority in [the

s]uperintendent . . . —its top administrator—and that it in fact delegated that

authority to [the superintendent] insofar as . . . at-will employees [were] concerned”),

report and recommendation adopted by 2005 WL 1126853 (D. Me. May 11, 2005).

In this case, Boucher alleges in her complaint that “Defendant Langlais, on

behalf of [the School Committee], had the policy making authority over termination.”

Compl. ¶ 91. And Boucher has alleged facts showing that Langlais acted as though

he had final policymaking authority in regard to termination procedures. Whether

Boucher can ultimately prove her allegation that Langlais was delegated policy

making authority over the termination process remains to be seen, but at the motion

to dismiss stage, I must interpret the facts in Boucher’s favor. Because the Complaint

plausibly alleges facts that could justify the imposition of municipal liability under a

delegation theory,3 I deny the Defendants’ motion to dismiss Count V of Boucher’s

Complaint.

B. Count IV – Langlais’ Liability

“The doctrine of qualified immunity protects government officials ‘from

liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.’ ”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). Thus, “when sued in their individual capacities, government officials

are immune from damages claims unless ‘(1) they violated a federal statutory or

constitutional right, and (2) the unlawfulness of their conduct was clearly established

at the time.’ ” Eves v. LePage, 927 F.3d 575, 582–83 (1st Cir. 2019) (en banc) (quoting

District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)). “Qualified immunity . . . is

intended to protect all but the plainly incompetent or those who knowingly violate

the law. Accordingly, although there need not be a case directly on point, existing

precedent must have placed the statutory or constitutional question beyond debate.”

Id. at 583 (internal quotation marks and citations omitted).

As explained above, Boucher plausibly alleges that the pre-termination

procedures used by the Defendants were insufficient to satisfy the requirements of

procedural due process. Boucher was not provided notice of possible termination or

the charges against her, and she was not given a meaningful pre-termination

3 Because Boucher’s Complaint plausibly alleges that the School Committee delegated final

policymaking authority to Langlais for the purpose of firing employees, I do not consider her

ratification theory.

opportunity to respond. In fact, when she raised the issue of her employment contract,

Langlais told her that it was not worth the paper it was written on.4 A reasonable

official should have known that where an employer was required to have cause to

terminate an employee, the failure to provide the employee with notice, an

explanation of the evidence, or a meaningful opportunity to respond would violate

procedural due process requirements. See Cotnoir, 35 F.3d at 11–12 (denying

qualified immunity to a school superintendent who failed to provide pre-termination

notice, an explanation of evidence, and an opportunity to respond to an employee).

Moreover, a reasonable official would not believe that even extensive post-

termination process could “cure the violation.” See id. at 12–13. The Defendants’

motion to dismiss Count IV is denied.

II. State Law Claims

A. Counts I and III Against Langlais

In Counts I and III, Boucher brings two state law claims that are styled as

claims against the “Defendants.” Compl. ¶¶ 71, 81.5 Count I alleges a breach of her

employment contract, and Count III asserts a claim grounded in her employment

contract for a violation of an implied covenant of good faith and fair dealing. The

4 Of course, this allegation cuts both ways: while it strengthens the case against affording

Langlais qualified immunity, it potentially undercuts Boucher’s argument regarding municipal

liability. At this stage, however, I find that there are enough facts alleged in Boucher’s Complaint to

allow the claims against both Defendants to survive the motion to dismiss.

5 Boucher’s Complaint also asserts that the “Defendants” violated 26 M.R.S. § 626, Compl. ¶ 76

(ECF No. 1), but Boucher clarifies in her Opposition to the Defendants’ Motion to Dismiss that she

does not seek to hold Langlais individually liable for that violation. See Pl.’s Opp’n to Defs.’ MTD 22

n.6 (ECF No. 13).

Defendants assert that these claims against Langlais should be dismissed because

Langlais was not a party to the employment contract. I agree.

The contracts at issue here were between Boucher and the School Committee,

not between Boucher and Langlais. See Compl. Exs. 1, 2. “It goes without saying that

a contract cannot bind a nonparty.” Guerrette v. Dyer, No. CV-13-180, 2014 WL

7920630, at *3 (Me. Super. Ct. July 9, 2014) (quoting EEOC v. Waffle House, Inc., 534

U.S. 279, 294 (2002)). And, “[w]hen an agent is not a party to a contract between the

principal and a third party, the agent is not liable to the third party for a breach of

that contract.” Cnty. Forest Prods., Inc. v. Green Mountain Agency, Inc., 2000 ME 161,

¶ 42, 758 A.2d 59. Thus, even if Langlais were an agent of the School Committee, he

is not personally liable for a breach of the contract with Boucher. Similarly, even if a

duty of good faith and fair dealing exists between the contracting parties, this duty

would not extend to Langlais personally. Cf. AccuSoft Corp. v. Palo, 237 F.3d 31, 45

(1st Cir. 2001) (describing the implied covenant of good faith and fair dealing as a

covenant “between parties to a contract”). Counts I and III are dismissed as to

Langlais.

B. Count I – Breach of Contract – Against the School Committee

Boucher alleges that the School Committee breached its contract when it

terminated Boucher’s employment without cause. Compl. ¶¶ 69–71. The Defendants

argue that Boucher’s breach of contract claim against the School Committee fails for

two reasons. First, even if Boucher’s termination on August 21, 2021, was a breach,

the School Committee “cured” the breach by the time Boucher brought her lawsuit by

reinstating Boucher’s pay and benefits. MTD 16. Second, the breach of contract claim

fails because Boucher has failed to allege damages resulting from any breach. MTD

16.

As to the Defendants’ first argument, I am not convinced that the

Reinstatement Letter “cured” the breach. The Defendants cite the Restatement

(Second) of Contracts § 241 and Tobin v. Barter, 2014 ME 51, 89 A.3d 1088, in support

of their argument regarding cure, but they do not cogently argue how either of these

authorities supports their position. The Restatement (Second) of Contracts § 241 does

state that “the likelihood that the party failing to perform . . . will cure his failure” is

a “significant” circumstance “[i]n determining whether a [breach] is material.”

Restatement (Second) of Contracts § 241 (Am. L. Inst. 1981). But the cited portion of

the Restatement does not provide insight into whether the Reinstatement Letter

actually did cure the breach. The reference to Tobin is even more perplexing since

Tobin did not involve the issue of whether curing a breach can render a breach

immaterial.

The Defendants’ second argument—that Boucher has failed to allege

damages—does not fare much better. A breach of contract action entails three

elements: (1) breach of a material contract term; (2) causation; and (3) damages.

Wetmore v. MacDonald, Page, Schatz, Fletcher & Co., 476 F.3d 1, 3 (1st Cir. 2007).

At the motion to dismiss stage, “a complaint need not plead facts sufficient to

establish a prima facie case.” Carrero-Ojeda v. Autoridad de Energía Eléctrica, 755

F.3d 711, 718 (1st Cir. 2014) (internal quotation marks omitted). “That said, the

elements of a prima facie case remain relevant to [the] plausibility assessment, as

those elements are part of the background against which a plausibility determination

should be made.” Id. (internal quotation marks omitted). Here, Boucher plausibly

asserts that her employment was terminated on August 21, 2021. Although the

Reinstatement Letter incorporated by reference into Boucher’s Complaint shows that

the School Committee attempted to reinstate Boucher with retroactive compensation

and benefits, it is reasonable to infer that Boucher did not accept this reinstatement

and thus that she did not receive the compensation and benefits she claims are owed

to her. The Defendants seem to assume that Boucher was required to accept the

reinstatement, but they do not address her argument that “a material breach of

contract . . . justifies the injured party in regarding the whole transaction as at an

end.” Pl.’s Opp’n to Defs.’ MTD 20 (citing H&B Realty, LLC v. JJ Cars, LLC, 2021

ME 14, ¶ 16, 246 A.3d 1176, 1184). Making all reasonable inferences in Boucher’s

favor, I cannot say at this stage that Boucher has failed to allege damages in this

breach of contract action. The motion to dismiss Count I is denied.

C. Count II – 26 M.R.S. § 626

Under 26 M.R.S. § 626, “[a]n employee leaving employment must be paid in

full no later than the employee’s next established payday.” The Defendants argue

that Boucher’s § 626 claim fails for two reasons: (1) because Boucher was still

employed by the School Committee at the time she filed her Complaint, and therefore

was not “[a]n employee leaving employment” within the meaning of the statute; and

(2) because, even if she was terminated, her claim is a wrongful discharge claim for

which § 626 has no application. MTD 16–17 (internal quotation marks omitted). Both

arguments are problematic.

First, as explained above, Boucher has plausibly alleged that her employment

was terminated on August 21, 2021. While Boucher’s Complaint acknowledges the

Defendants’ attempt to reinstate her employment, it is reasonable to infer, as I must

at the motion to dismiss stage, that this was not a successful attempt. Thus, dismissal

of Count II is not appropriate on this basis.

As for their second argument, the Defendants cite only one case in support of

their contention that Boucher cannot recover under § 626, but that case is not on

point. In Learnard v. Inhabitants of the Town of Van Buren, the plaintiff asserted a

prayer for § 626 damages in his count asserting a violation of § 1983. 164 F. Supp. 2d

35, 44 (D. Me. 2001) (holding that “it is inappropriate for Plaintiff to invoke [§ 626]

as a component of the damages requested under [a § 1983 claim]”). Unlike the

plaintiff in Learnard, Boucher is not attempting to recover damages under § 626 for

a violation of § 1983. Rather, Boucher’s Complaint sets the § 626 claim out as a

separate cause of action for unpaid wages, see Compl. ¶¶ 74–77, precisely the kind of

action that the Learnard court acknowledged was eligible for recovery under § 626,

see 164 F. Supp. 2d at 44 (“[Section 626] authorizes employees to sue their employers

for failing to pay wages.”). While caselaw may exist that supports the Defendants’

argument that § 626 is not available in a wrongful termination case, the Defendants

have not cited it, and it is not apparent to me why it should be the case that § 626

and wrongful termination claims should be mutually exclusive. Cf. United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“It is not enough merely to mention a possible

argument in the most skeletal way, leaving the court to do counsel's work, create the

ossature for the argument, and put flesh on its bones.”). The motion to dismiss Count

II is therefore denied.

D. Count III – Implied Covenant of Good Faith & Fair Dealing

The Defendants argue that Count III of the Plaintiff’s Complaint should be

dismissed because “Maine law does not recognize a duty of good faith and fair dealing

outside of insurance contracts and contracts governed by the Uniform Commercial

Code.” MTD 16 (citing Montany v. Univ. of New Eng., 858 F.3d 34, 42–43 (1st Cir.

2017)). Boucher responds that Maine courts have not specifically refused to recognize

an implied duty of good faith and fair dealing in the context of a for-cause employment

relationship, and she cites two cases that she says “suggest[ ] that the Law Court

would, in fact, recognize such a duty.” Pl.’s Opp’n to Defs.’ MTD 21–22 (citing Godin,

831 F. Supp. 2d at 386 & n.7 (describing the holding of Paradis v. Sch. Admin Dist.

No. 33 Sch. Bd., 446 A.2d 46 (Me. 1982))). However, both Godin and Paradis are

distinguishable from the instant case.

Godin and Paradis involved the elimination of positions based on rationales

allowed under state law. In each case, there was a statutory obligation imposed on

school districts to act in good faith when eliminating positions under these rationales,

and each plaintiff claimed that the school administrators had invoked the given

rationale in bad faith as a subterfuge to circumvent contractual for-cause termination

procedural requirements. See Godin, 831 F. Supp. 2d at 386–87; Paradis, 446 A.2d at

50. While these cases recognized a statutorily-imposed obligation to act in good faith

under specific circumstances, neither case recognized the existence of a general

implied covenant of good faith and fair dealing present in all for-cause employment

contracts.

“The practice of federal courts predicting the content of state substantive law

where it is shrouded in doubt is always a risky . . . venture.” Renaissance Yacht Co.

v. Stenbeck, 818 F. Supp. 407, 412 (D. Me. 1993). To date, Maine courts have only

recognized an implied covenant of good faith and fair dealing in specific types of

contracts, none of which are at issue here. See Montany, 858 F.3d at 24–43. Absent a

clear holding by Maine state courts to the contrary, I decline to expand the implied

duty of good faith and fair dealing to all for-cause employment contracts. The motion

to dismiss Count III as to the School Committee is granted.

CONCLUSION

For the reasons stated above, the Court GRANTS IN PART and DENIES IN

PART the Defendants’ motion to dismiss (ECF No. 8). The Defendants’ motion to

dismiss is GRANTED as to Count I, as it pertains to Langlais, and as to Count III in

its entirety. The motion is DENIED in all other respects.

SO ORDERED.

/s/ Nancy Torresen

United States District Judge

Dated this 11th day of March, 2022.