DAVIS v. THERIAULT

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

HAROLD JOHN DAVIS, JR., et al., )

)

Plaintiffs )

)

v. ) 1:22-cv-00275-JCN

)

JANET THERIAULT, et al., )

)

Defendants )

ORDER ON MOTION FOR JUDGMENT

ON THE PLEADINGS

Plaintiffs allege various claims against multiple defendants regarding the

termination of their employment with the Town of Millinocket. (Amended Complaint,

ECF No. 1-1.) The Court previously dismissed several defendants from the case and

dismissed some claims against other defendants. (Omnibus Order on Motions, ECF No.

156.) Defendants Steven Golieb, Michael Madore, Louis Pelletier, Randy Jackson,

Annette Padilla, and the Town of Millinocket (the Town Defendants), pursuant to Federal

Rule of Civil Procedure 12(c), now move for judgment on the pleadings on Plaintiffs’

amended complaint. (Motion for Judgment, ECF No. 160.)

Following a review of the record and after consideration of the parties’ arguments,

the Court grants the Town Defendants’ motion for judgment on the pleadings and dismisses

the claims against the Town Defendants, except for the breach of contract claim against the

Town of Millinocket.

PROCEDURAL AND FACTUAL BACKGROUND1

In March 2019, Plaintiff Craig Worster was hired as Chief of Police for the Town

of Millinocket. Plaintiff Harold Davis was the town manager, and Defendant Janet

Theriault was the Deputy Chief of Police. After starting in his position, Plaintiff Worster

began to have concerns about Defendant Theriault’s performance and eventually raised the

concerns with Plaintiff Davis. In February 2020, following a confrontation between

Plaintiff Worster and Defendant Theriault, a citizen who witnessed the confrontation

lodged a complaint alleging that Plaintiff Worster had acted unprofessionally. After an

internal investigation that included the review of video surveillance footage and interviews

of Defendant Theriault and Plaintiff Worster, Plaintiff Davis determined there was no

evidence to corroborate the citizen’s version of events.

While Defendant Theriault was on medical leave in April 2020, through her lawyer,

she filed a complaint with the Town primarily against Plaintiff Worster and partly against

Plaintiff Davis. A representative of Defendant Theriault’s union also filed a similar

complaint against Plaintiff Davis. Plaintiffs allege the union representative sought to

pressure Plaintiff Davis to fire Plaintiff Worster or to get Plaintiff Davis replaced by a

different town manager who would fire Plaintiff Worster. The Town of Millinocket hired

a professional investigator who later drafted an investigation report; the report contained

1 The facts are drawn from the amended complaint. A detailed recitation of the allegations against all the

defendants, including the Town Defendants, is set forth in the Court’s Omnibus Order on Motions and is

not repeated here. Only the allegations most relevant to the current motion are included here.

no findings of misconduct. With the guidance of the Town’s attorneys, Plaintiff Davis

determined there was no cause to terminate Plaintiff Worster’s employment.

Plaintiffs were allegedly subjected to a coordinated “smear” campaign during and

after the investigation, which campaign was designed to pressure the town council to

terminate Plaintiffs’ employment. For example: two individuals and a facebook group

disseminated publicly the two complaints and other confidential personnel files; protests

and car parades were arranged to target Plaintiff Davis’s residence as frequently as four

nights per week; websites misrepresented important details, such as the reason Defendant

Theriault was on leave from work; and at least one online comment included a call for

violence against Plaintiffs.

In September 2020, the Town fired Plaintiff Davis and replaced him with Defendant

Annette Padilla. In December 2020, Defendant Padilla fired Plaintiff Worster. A

personnel appeals board later reinstated Plaintiff Worster, but by that point, Defendant

Padilla had disbanded the town police force.

Plaintiffs filed suit in state court in June 2022. (State Court Docket Record, ECF

No. 28-1.) In September 2022, the Town Defendants removed the case to federal court.

(Notice of Removal, ECF No. 1.) The Court assessed and ruled on other defendants’

motions to dismiss and motions for judgment on the pleadings. (Ominbus Order on

Motions, ECF No. 156.) Through the order, the Court dismissed several defendants from

the case and dismissed multiple claims against other defendants.

As to the Town Defendants specifically, Plaintiffs alleged the following:

1. At the times relevant to the complaint, Defendants Golieb, Madore, Pelletier,

and Jackson were town councilors. Defendant Padilla was hired as Interim

Town Manager. (Amended Complaint ¶¶ 27–31, ECF No. 1-1.)

2. Defendants Golieb, Madore, and Pelletier “engage[d] in a campaign of

disparagement.” (Id. ¶¶ 13.)

3. Defendant Padilla, along with Defendant Pelletier and “other Town Councilors

named” in the amended complaint, communicated with members of the public

and “spread further disinformation about [Plaintiffs]” on a GoFundMe page for

Defendant Theriault. (Id. ¶¶ 78–80.)

4. Defendant Pelletier “publicly discussed on Facebook that he and other Town

Councilors were looking for a way to fire Plaintiff Davis and have an Interim

Town Manager re-investigate issues that Plaintiff Davis had investigated and

closed based on a finding of no misconduct regarding Defendant Theriault’s

claims against Plaintiff Worster; Defendant Pelletier’s strategy is and was

prohibited by Town Policy.” (Id. ¶ 81.)

5. The Town Council’s decision to terminate Plaintiff Davis’s employment and

hire Defendant Padilla as interim town manager, who then terminated Plaintiff

Worster’s employment, was part of a conspiracy against Plaintiff Davis

perpetrated by Defendants Padilla, Pelletier, Golieb, and others. (Id. ¶ 84.)

6. Before the termination of Plaintiffs’ employment, Defendants Madore, Pelletier,

and Golieb communicated with Defendant Theriault, the union representative,

Defendant Padilla, and others about removing Plaintiffs from their positions.

(Id. ¶ 103.)

7. Defendants Madore, Pelletier, and Golieb used two other defendants

(D’Alessandro and Murray Stanley) to disseminate “private and confidential

information, as well as information that was and is untrue, false and misleading

purely in an attempt to disparage both Plaintiffs, as well as interfere with both

Plaintiffs’ employment contracts.” (Id. ¶ 104.)

8. Defendants Golieb and Madore conducted “personal investigations into the

allegations” others had made against Plaintiffs and communicated with

Defendant Theriault. The actions of Defendants Golieb and Madore

“encouraged the public disparagement of the Plaintiffs and also created an

improper bias against both Plaintiffs, within the Town Council, as well as more

broadly.” (Id. ¶¶ 105–07.)

9. Defendants Golieb, Madore, and Pelletier “engage[d] in a public campaign of

disparagement via both written form as well as through public gatherings”

against Plaintiffs, including allegations that were “false, misleading and intended

to cause serious harm and irreparable damage to Plaintiffs’ reputations. . . .” (Id.

¶ 116.)

10. Defendant Golieb “inappropriately, and in violation of the Town’s policies,

initiated an oral Motion to Condemn Plaintiff Davis as Town Manager.”

Defendant Golieb did not notify other town councilors of the motion, nor did he

place it on the agenda for the council meeting. Defendant Golieb used this

“inappropriate method to disparage Plaintiff Davis by failing to obtain

permission from Plaintiff Davis to discuss any matters involving Plaintiff

Davis’s employment during a public meeting.” (Id. ¶¶ 118–120.)

11. Defendant Golieb said in an interview that the town councilors were unaware of

certain police officers who had resigned while Plaintiff Worster was chief, when

in fact Plaintiff Worster had introduced new officers to the town councilors at

the start of their employment. (Id. at 122.)

12. Defendants Golieb, Pelletier, and Madore “perpetrated the rumors surrounding

Defendant Theriault’s allegations through their statements to the media and

interactions with the protesters and various other individuals.” (Id. ¶ 124.)

13. Defendants Golieb and Jackson fired Plaintiff Davis as town manager even

though his performance reviews had previously been positive. The procedure

used to terminate Plaintiff Davis’ employment did not comply with the terms of

his contract. Defendants Golieb and Jackson “plac[ed] [Worster] in a position

where he was significantly impaired in his ability to discharge his duties as Chief

of Police. (Id. ¶¶ 128–35.)

14. “Defendant Padilla was a contributor to the online campaign against Plaintiffs

Davis and Worster, having made comments on various posts against both

Plaintiffs on social media and/or attending rallies against” them. (Id. ¶¶ 155.)

15. “Defendant Padilla fired Plaintiff Worster for reasons that had been closed

through [a] prior investigation and which were not allowed to be used against

him further.” (Id. ¶ 159.)

LEGAL STANDARD

A motion for judgment on the pleadings under Fed. R. Civ. P. 12(c) is “ordinarily

accorded much the same treatment” as a motion to dismiss for failure to state a claim.

Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54 (1st Cir. 2006). To survive a Rule 12(c)

motion, as with a 12(b)(6) motion, “a complaint must contain factual allegations that ‘raise

a right to relief above the speculative level, on the assumption that all the allegations in the

complaint are true.’” Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

The proper time to file a motion for judgment on the pleadings is “[a]fter the

pleadings are closed.” Fed. R. Civ. P. 12(c). “‘[T]he pleadings are closed for the purpose

of Rule 12(c) once a complaint and answer have been filed.’” McGuigan v. Conte, 629 F.

Supp. 2d 76, 80 (D. Mass. 2009) (quoting Doe v. United States, 419 F.3d 1058, 1061 (9th

Cir. 2005)).

DISCUSSION

Plaintiffs assert claims of negligence (Count I), the negligent infliction of emotional

distress (Count II), defamation (Count III), interference with advantageous or future

economic relations or expectations or misrepresentation (Count IV), equal protection

violations (Count V), fraudulent misrepresentation (Count VI), the intentional infliction of

emotional distress (Count VII), civil conspiracy (Count VIII), breach of contract (Count

IX), employment discrimination (Count X), violation of Maine constitution (Counts XI,

XII, & XV), state civil rights violations (Count XIII), and invasion of privacy (Count XIV).

Except for Count IX, each claim fails for similar or identical reasons to those the Court

discussed in the prior order when it dismissed the same claims against several other

defendants.

As the Court explained, the duty owed in a general negligence claim “is the duty to

avoid causing physical injury or property damage.” (Omnibus Order at 109–10 (discussing

Boivin v. Somatex, Inc., 2022 ME 44, 279 A.3d 393). Plaintiffs have not asserted any non-

conclusory allegations concerning physical harm or property damage caused by the Town

Defendants’ conduct. Because Maine law does not support a general negligence action

based on mental stress or emotional suffering alone, and because Plaintiffs have not cited

any facts or legal authority that would distinguish the circumstances presented in this case

from the general rule, the Town Defendants are entitled to the dismissal of Count I of the

amended complaint.

Maine law does impose “a duty to act reasonably to avoid emotional harm to

others,” through the tort of negligent infliction of emotional distress, but that duty applies

only “in very limited circumstances: first, in claims commonly referred to as bystander

liability actions; and second, in circumstances in which a special relationship exists

between the actor and the person emotionally harmed.” Curtis v. Porter, 2001 ME 158, ¶

19, 784 A.2d 18, 25. Plaintiffs do not allege a bystander scenario, and courts have

repeatedly “decline[d] to categorize an employer-employee relationship as a special

relationship under Maine law for purposes of a NIED claim.” Berry v. WorldWide

Language Res., Inc., 716 F. Supp. 2d 34, 52 (D. Me. 2010) (internal quotation marks

omitted).

Plaintiffs argue that a special relationship existed because as municipal officers, the

Town Defendants allegedly owed Plaintiffs a fiduciary duty. The Court is unpersuaded.

Plaintiffs do not allege any such fiduciary duties in the amended complaint, and the

disparate statutes and secondary sources cited do not directly support their argument. Even

if there were such a duty, it would not necessarily imply that the requisite special

relationship existed. (See Omnibus Order at 114 (“Maine courts have been reluctant to

expand the scope of special relationships for purposes of negligent infliction of emotional

distress beyond narrow, well-delineated categories such as doctor-patient relationships and

attorney-client relationships”)). The authority Plaintiffs cite are inapposite or undermine

their argument, either because the cases involve other torts or because they involve far

more significant and vulnerable relationships and reliance. See e.g., Gniadek v. Camp

Sunshine at Sebago Lake, Inc., 2011 ME 11, ¶ 21, 11 A.3d 308, 314 (discussing children’s

or disabled individuals’ negligent supervision claim against caregivers and clergy). The

Town Defendants are entitled to dismissal of Count II of the amended complaint.

Plaintiffs’ defamation claim also fails because Plaintiffs did not allege in the

amended complaint the substance of the allegedly false statements or the context of the

alleged publication of the statements. (See Omnibus Order at 148–49 (discussing Fazeli v.

Northbridge Stroudwater Lodge II LLC, No. 2:20-CV-00350-JDL, 2021 WL 1759860, at

*12 (D. Me. May 4, 2021)). Plaintiffs provide little more than labels and conclusory

allegations about the “disparagement” and “misinformation” allegedly disseminated by the

Town Defendants. Furthermore, given that Plaintiffs were public figures, the allegations

in the amended complaint falls well short of establishing a plausible inference that the

Town Defendants acted with actual malice, as required under New York Times v. Sullivan,

376 U.S. 254 (1964). Similarly, Plaintiffs do not meet the actual malice standard or

otherwise plausibly allege any specific falsehoods, fraud, misrepresentations, or

detrimental reliance needed to support the interference with economic advantage claim2 or

the fraudulent misrepresentation claim. (See Omnibus Order at 133, 139–42, 151.) The

Town Defendants are entitled to dismissal of Counts III, IV, and VI of the amended

complaint.

Although Plaintiffs’ intentional infliction of emotional distress claim does not suffer

from the same fatal flaw as the negligence claims, the allegations are insufficient to state

an actionable claim.

2 The Court previously focused on the fraud method of satisfying the interference with economic advantage

claim because although Plaintiffs use the label “intimidation,” they do not allege the type of intimidation

that can satisfy the elements of the tort under Maine law. (Omnibus Order at 140–42.) To support their

intimidation argument, Plaintiffs cite Pombriant v. Blue Cross/Blue Shield of Maine, 562 A.2d 656, 659

(Me. 1989), but the case is entirely consistent with the Court’s conclusion that the relevant form of

recognized intimidation involves making it clear that they would no longer do business with the other party

unless the other party breached their contract with another. See Meridian Med. Sys., LLC v. Epix

Therapeutics, Inc., 2021 ME 24, ¶ 58, 250 A.3d 122, 136 (“These decisions stand for the proposition that

wherever a defendant has procured a breach of contract by making it clear to the party with which the

plaintiff had contracted that the only manner in which that party could avail itself of a particular benefit of

working with defendant would be to breach its contract with plaintiff, the intimidation element of a claim

for tortious interference with a contract exists”) (discussing Pombriant and Currie v. Indus. Sec., Inc., 2007

ME 12, ¶ 34, 915 A.2d 400, 408).

Plaintiffs have failed to provide any authority for the application of the intimidation theory of the tort to the

kind of public advocacy and termination of public employment alleged in the amended complaint, where

officials of a public entity wanted one of the entity’s employees to terminate the employment of a

subordinate employee. Furthermore, in cases involving the termination of employment where all actors are

part of a single entity, it will likely be more difficult to satisfy the elements of the tort because “there is

simply no ‘other’ party . . . Defendants were the only contracting parties,” which means that “‘interfering’

with the performance of Defendants’ own contract . . . is indistinguishable from breach. . . .” Burr v.

Melville Corp., 868 F. Supp. 359, 366 (D. Me. 1994) (analyzing similar New Hampshire law). Only

Defendant Padilla before her hiring could be considered a third party, but because she is not alleged to have

had a contract with the Town or other leverage over the Town or the other Town Defendants, the allegations

do not permit an inference that her conduct could be viewed as intimidation.

Under Maine law, the four elements of a claim for intentional infliction of

emotional distress are that (1) the defendant intentionally or recklessly

inflicted severe emotional distress or was certain or substantially certain that

such distress would result from her conduct; (2) the conduct was so extreme

and outrageous as to exceed all possible bounds of decency and must be

regarded as atrocious, utterly intolerable in a civilized community; (3) the

actions of the defendant caused the plaintiff's emotional distress; and (4) the

emotional distress suffered by the plaintiff was so severe that no reasonable

person could be expected to endure it.

Hornof v. United States, No. 23-1761, 2024 WL 3408673, at *11 (1st Cir. July 15, 2024)

(quotation marks and modifications omitted). Plaintiffs’ argument that the Town

Defendants’ conduct was extreme and outrageous would necessarily require an inference

based on the pleadings that the Town Defendants knowingly spread falsehoods about

Plaintiffs and terminated their employment based on untruths and disparagement. As

previously discussed, given the absence in the amended complaint of anything more than

conclusory allegations that lack the substance of the false statements and misinformation,

the amended complaint does not support an inference of malicious intent. In other words,

the factual assertions regarding the conduct of the Town Defendants cannot reasonably be

viewed as so extreme and outrageous as to be intolerable to the community. Count VII

therefore fails as against the Town Defendants. (See also, Omnibus Order at 137–39, 150–

51 (dismissing IIED claims against other participants in alleged campaign of

disparagement)).

Title VII and similar statutes make it unlawful to discharge, fail to hire, or otherwise

discriminate against an individual with respect to compensation, terms, conditions, or

privileges of employment, “because of such individual’s race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e-2. To state an equal protection claim, a plaintiff must

“allege facts indicating that, compared with others similarly situated, [the plaintiff] was

selectively treated based on impermissible considerations such as race, religion, intent to

inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to

injure a person.” Barrington Cove Ltd. P’ship v. Rhode Island Hous. & Mortg. Fin. Corp.,

246 F.3d 1, 7 (1st Cir. 2001) (quotation marks and modification omitted).

To the extent Plaintiffs argued they suffered discrimination on the basis of sex, their

conclusory allegation without more “is insufficient.” (Omnibus Order at 98). Plaintiffs

provide no facts to support a plausible claim. For instance, Plaintiffs do not allege the

Town Defendants made any statements that could be construed to reflect a discriminatory

animus, do not identify or provide summaries about similarly situated individuals who were

treated differently,3 and do not cite any practices that might be viewed as discriminatory.

The most that Plaintiffs allege is that (1) the problems began with an incident involving a

female officer (Defendant Theriault), (2) Plaintiffs were scrutinized more closely than

other department heads, and (3) Plaintiff Davis was replaced by a woman (Defendant

Padilla). The allegations do not give rise to a plausible inference of discriminatory motive.

Even if Plaintiffs pled claims that were “consistent with” employment discrimination, “a

complaint’s factual allegations must be sufficient to take a claim beyond the realm of pure

conjecture, that is, across the line from conceivable to plausible.” Frith v. Whole Foods

3 In the employment discrimination context, one or many comparators can be “powerful support for a claim

of disparate treatment” but it is not strictly “a required element,” especially at the pleading stage. Frith v.

Whole Foods Mkt., Inc., 38 F.4th 263, 275 n.10 (1st Cir. 2022).

Mkt., Inc., 38 F.4th 263, 274 (1st Cir. 2022). Plaintiffs’ allegations fail to satisfy the

plausibility standard.

Furthermore, because there is no individual liability for employment discrimination,

Fantini v. Salem State Coll., 557 F.3d 22, 30 (1st Cir. 2009), Plaintiffs cannot proceed on

their claim against the Defendants Golieb, Madore, Pelletier, Jackson, and Padilla. To the

extent Plaintiffs intended to pursue a class-of-one equal protection claim, they have not

identified any similarly situated individuals or any other factual support to render that

inference plausible, see McCoy v. Town of Pittsfield, NH, 59 F.4th 497, 507 (1st Cir. 2023)

(“plaintiffs bear the burden of identifying comparators”), and such claims are generally not

cognizable in the public employment context. See Engquist v. Oregon Dep’t of Agr., 553

U.S. 591, 603–05 604 (2008). The Town Defendants are entitled to dismissal of Counts V

and X of the amended complaint.

Plaintiffs’ state constitutional claims also fail. Regarding Count XI, the Court has

explained that the Article I Section 1 provision reflecting a right to life, liberty, property,

and the pursuit of happiness has never been interpreted to be judicially enforceable.

(Omnibus Order at 100.) There is no plausible claim under Counts XII or XV for the

reasons discussed above because the state constitutional right to equal protection is

essentially the same as those of the federal constitution, and because Plaintiffs have not

plausibly alleged any violation of a procedural right, such as the right to a hearing or a

judicial forum embodied in the two constitutional provisions. (Id. at 101–02.) Plaintiffs’

claim in Count XIII for interference with a constitutional right is not sustainable because

they have not plausibly alleged an underlying violation of a constitutional right, and

because the provision requires actual or threatened violence, damage or destruction of

property, or trespass, which are not alleged. (Id. at 99–100.)

Plaintiff Worster asserts in Count XIV that his right to privacy was violated when

two individuals contacted his daughter on Facebook or through other means and provided

her with false or misleading information. The Court previously noted that under Maine

law, invasion of privacy can occur when a defendant (1) unreasonably intrudes physically

upon the seclusion of another; (2) appropriates another’s name or likeness; (3) gives

unreasonable publicity to another’s private life; and (4) provides publicity that

unreasonably places another in a false light before the public. (Id. at 154.) For multiple

reasons, including that Plaintiff Worster did not provide any details about the

communications or the alleged falsity of the information, the Court found the allegations

lacking against the two individuals and dismissed the claims against them. (Id. at 153–57.)

The same reasoning applies with perhaps even more significance to the claim against the

Town Defendants, who are not alleged to have had a direct role in the conduct involving

Plaintiff Worster’s daughter.

The Court also dismissed the civil conspiracy claim against other defendants

because it is not an independent tort under Maine law. (Omnibus Order at 99, 146, 159.)

Plaintiffs do not refute the Court’s prior conclusion or the Town Defendants’ assertion of

the same argument. Instead, Plaintiffs argue that aiding and abetting is a valid theory of

liability under Maine law. That argument is of little assistance, however, because it does

not alter the Court’s earlier conclusion that Plaintiffs cannot proceed on Count VIII.

Furthermore, the amended complaint does not include an aiding and abetting allegation.

Even if Plaintiffs could potentially proceed on an aiding and abetting theory against certain

individuals under other counts, without any allegations as to who aided and abetted which

conduct and how, the argument does not alter the analysis of Plaintiffs’ other claims.

The individual Town Defendants, as distinguished from the Town of Millinocket,

also seek judgment on the breach of contract claim. The parties to the employment contract

were Plaintiff Davis and the Town. Even though the individual Town Defendants allegedly

played a role in directing the Town’s decisions, they are not liable for breach of contract

because they are not parties to the employment contract. See Mueller v. Penobscot Valley

Hosp., 538 A.2d 294, 299 (Me. 1988) (noting that an administrator “is not personally liable

for breach of any such contract” between another employee and their employer). The

individual Town Defendant are entitled to judgment on Count IX.

Finally, Plaintiffs’ other arguments in response to the motion are unpersuasive. For

example, Plaintiffs contend the motion is too late and would delay trial, but a scheduling

order has not issued, and the motion cannot be reasonably viewed as delaying the

proceedings. Plaintiffs also maintain that Defendant Padilla should not be permitted to file

another Rule 12(c) motion after the Court previously denied in part her special motion to

dismiss pursuant the Anti-SLAPP statute. (See Omnibus Order at 54–58.) Plaintiffs

provide no authority to support their contention that Defendant Padilla is prohibited from

challenging the sufficiency of the pleadings following an Anti-SLAPP threshold inquiry.

Defendant Padilla’s separate motions are not inconsistent with the purposes of the Rules

and the Anti-SLAPP statute.

CONCLUSION

Based on the foregoing analysis, and for the reasons stated in the Omnibus Order,

the Court grants the Town Defendants’ motion for judgment on the pleadings. The Court

dismisses Plaintiffs’ claims against the Town Defendants (Defendants Golieb, Madore,

Pelletier, Jackson, Padilla, and the Town of Millinocket), except for Plaintiff Davis’s

breach of contract claim asserted against the Town of Millinocket in Count IX of the

amended complaint.

s/ John C. Nivison

U.S. Magistrate Judge

Dated this 7th day of August, 2024.