Opinion

Janicki v. John Bapst Memorial High Sch.

Court: Superior Court of Maine
Filed: Oct 1, 2001
Status: Unpublished
On the bench: Francis C. Marsano
Cited by: 0 cases
Authority: More cited than 34.1%

applying Maine law, balancing societal interests in determining whether allegations were sufficient to support - aIIED claim

How later courts described this case

applying Maine law, balancing societal interests in determining whether allegations were sufficient to support - aIIED claim
allegations of wrongful discharge from employment and violation of due process rights insufficient to support ITED claim
“where a statutory right and remedy are provided, there is no need to recognize a redundant tort [of wrongful discharge].”
disclosure of confidential information concerning circumstances of plaintiff’s separation from employment insufficient to support ITED claim

Written by the judges who cited it.

The opinion

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, ss. Docket No. CV-00-218

Louis Janicki, ‘}

Plaintiff, )

) ORDER ON DEFENDANTS’

) MOTION FOR RELI

} “FROM TUDGMENT| FiS59-AND ENTERED

) |

oct 02 2001 f

John Bapst Memorial ) |

High School, et al.! ) PENOBSCOT COUNTY |

Defendants John Bapst Memorial High School (“JBHS”), Joseph, Sekera

(“Sekera”), John McDevitt CMcDevitt’y, Willian Hogan (“Hogan”), and James ~~~

Haddix (“Haddix”) have moved, pursuant to M.R. Civ. P. 60 (b)(1), for relief

from an order dated May 10, 2001 (the “May 10th Order’), in which this

Court denied in part and granted in part the defendants’ Motion to Dismiss

Counts I and II of the plaintiff, Lonis Janicki’s (“Janicki”), complaint.2

Specifically, the Court dismissed Count I as to the individual ‘defendants,

dismissed all claims for damages in excess of the contract amount in Count

I, and denied the defendants’ request to dismiss Count II as an entire claim

and as to the individual defendants. The defendants now ask this Court to

correct two inadvertent mistakes in the May 10th Order. First, the.

defendants ask the Court to correct its unintentional failure to dismiss

Count II against the individual defendants. Second, they ask the Court to

clarify the May 10th Order to reflect the fact that the defendants conceded

Janicki’s contractual employee status only for the purposes of the Motion

to Dismiss. That request is granted. For the reasons stated below, the

defendants’ remaining motion is denied.

1. Joseph Sekera, John McDevitt, William Hogan, James Haddix, Bill Therriault, and

Maryellen Therriault.

2. Count I of the complaint is a breach of contract claim, and Count IT is a wrongful discharge

claim. . .

ANALYSIS

The Court may relieve a party from an order for mistake,

inadvertence, surprise, or excusable neglect. M.R. Civ. P. 60 (b)(1).

A. Count II and the Individual Defendants

In the May 10th Order, the Court denied the defendants’ Motion to

Dismiss Count II for two reasons. First, “the allegations of Count II may

well fall within the scope of the relief sought [in Count IH]. At this

juncture that is not clear.” Second, it is not clear whether Janicki can

recover under a theory of wrongful discharge, as the Law Court has not

specifically accepted or rejected the common law claim. In denying the

defendants’ motion to dismiss for Count Il, this Court followed the

standards of a M.R. Civ. P. 12 (b)(6) motion, namely that dismissal of a

complaint for failure to state a claim is appropriate only if it appears

beyond doubt that the plaintiff is entitled to no relief under any set of

facts which he might prove in support of his claim. Larrabee v. Penobscot

Frozen Foods, 486 A.2d 97, 99 (Me. 1984).

The defendants now argue that the Court inadvertently failed to

dismiss Count II as to the iudividual defendants. In support of their

contention, the defendants state:

[t]he same logic which applied to dismiss the individual Defendants

from Count I applies to dismiss those same individual Defendants

from Count II. In the same way that it is the Defendant as an entity

that would have the responsibility for an alleged breach of contract

under Count I, it is also the Defendant as an entity that would have

the responsibility for an alleged wrongful discharge under Count II.

_ {emphasis original).

The Court, disagrees. ~The defendants are mistaken in their assertion”

that because the individual defendants are not liable under contract

principles, they are also not liable under tort principles. Although it is true

that the individual defendants are not liable under a contract theory, they

may be liable under a tort theory. Wrongful discharge is a tort theory.

See Bard v. Bath Iron Works Corp., 590 A.2d 152, 156 (Me. 1991) (“where

a statutory right and remedy are provided, there is no need to recognize a

redundant tort [of wrongful discharge].”) (emphasis added).

If the individual defendants were acting as agents of JBHS when they

purportedly wrongfully terminated Janicki, they may be held liable for

those actions.

An agent who does an act otherwise a tort is not relieved from

liability by the fact that he acted at the command of the principal

or on account of the principal, except where he is exercising a

' privilege of the principal, or a privilege held by him for the

protection of the principal’s interests, or where the principal owes

no duty or less than the normal duty of care to the person harmed.

Restatement (Second) of the Law of Agency § 343 (1958). -

The application of these principles to the question before the Court

leads to the conclusion that the individual defendants may be held

personally liable for their tortious conduct, even if JBHS may also be held

liable. The liability of the individual defendants, however, depends upon

each individual’s own tortious conduct.

Janicki has met his burden to withstand a motion to dismiss.

Assuming all of the facts in the complaint are true, Janicki has shown that

he is entitled “to relief pursuant to some legal theory.” In Re Wage

Payment Litigation, 2000 ME 162, { 3, 759 A.2d 217, 220. At this

juncture, the Court cannot say that the defendants have shown that Janicki

is entitled to no relief under any set of facts which he might prove in

support of his claim. The Court did not inadvertently fail to dismiss Count

Il. Accordingly, the defendants’ motion for relief on this matter is denied.

B. Concession of Jauicki’s Contractual Employee Status

For purposes of M.R: Civ. P. 12°(b)(6) motions, the material”

allegations set forth in Janicki’s complaint are taken as admitted. See

Larrabee v. Penobscot Frozen Foods, 486 A.2d 97, 98 (Me. 1984).

In the May 10th Order, the Court stated: “In the Court’s view,

Defendants admit the existence of a contract claim in their writing where

they say: ‘[E]ven if Count I withstands dismissal, it is improper to the

extent that it seeks damages over and above the value of the contract.’ The

Court agrees.”

The defendants argue that their statement that Janicki was a

contractual employee of JBHS was for the purposes of the Motion to

Dismiss only. The Court understands and agrees with this argument.

Accordingly, the defendants’ statement that Janicki was a contractual .

employee will be taken as conceded for purposes of their Motion to Dismiss

only.

The docket entry is:

The defendants’ Motion for Relief on the dismissal of Count II as to

the individual defendants is denied. The defendants’ Motion for Relief as

to the request that the May 10, 2001 Order reflect that the defendants

concede Janicki’s contractual employee status only for purposes of their

Motion to Dismiss is allowed. .

DATED: October 1, 2001

. and

Francis C. Marsano .

Justice, Superior Court

Date Filed __11/17/2000 ____ PENOBSCOT Docket No. CV-2000-218

County

DISMISSED - 5/10/01 - JOSEPH SEKERA, JOHN MCDEVITT,

Action. CONTRACT WILLIAM HOGAN & JAMES HADDIX

ASSIGNED TO JUSTICE FRANCIS C MARSANO

JOHN BAPST MEMORIAL HIGH SCHOOL,

JOSEPH SEKARA, JOHN MCDEVITT,

WILLIAM HOGAN, JAMES HADDIXZ,

LOUIS JANICKI BILL THERRIAULT & MARYELLEN THERRIAULT

Plaintiff's Attomey Defendant’s Attorney

Law Office of Carl F. Rella, P.A.

BILLINGS & SILVERSTEIN PO Box 2700

P O BOX 1445 - 47 Main Street Bangor, Maine 04402-2700

BANGOR ME 04402-1445 BY: Cari F. Rella, Esq.

BY: Jeffrey M. Silverstein, Esq. FOR: Mary Ellen Theriault & Bill Theriault

- Paul W. Chaiken, Esq.

PO Box 1401 - 84 Harlow St.

Bangor, Maine 04402-1401

io For: John Bapst Memorial High School,

Date of

Joseph Sekera, John McDevitc, William

Entry Hogan, and James Haddix

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, SS. CIVIL ACTION FILED & ENTERED

PLPLL i elon] SUPERIOR COURT

Wp, 10 [ol

JUN 10 2002

Louis Janicki, PENOBSCOT COUNTY

Plaintiff

Order on Motion for Summary

Judgment (Motion of Defendants

v. John Bapst Memorial High School, Joseph

Sekera, John McDevitt, William Hogan and

James Haddix) DL. GARB RECHT

John Bapst Memorial High School et al., LAW LIBRARY

Defendants

PJUN 14 2002

Pending before the court is the motion for summary judgment filed by defendants

John Bapst Memorial High School (“John Bapst”), Joseph Sekera, John McDevitt,

William Hogan and James Haddix (collectively, “the movants”).’ In their motion, they

seek judgment on.count 2 of the complaint, which alleges wrongful discharge from

employment. McDevitt, Hogan and Haddix also seek judgment on count 3, which has

been construed to set out a claim against those parties for wrongful interference with

contractual relations.” In association with this motion, the movants and the plaintiff have

filed written argument and rule 56(h) materials. The court has considered these

submissions.

The relevant portions of the record on summary judgment establish the following

facts. In June 2000, John Bapst and the plaintiff executed a written agreement under

which the plaintiff would serve as the boys soccer coach for the upcoming fall season.

’ The remaining defendants, Mary Ellen Therriault and Bill Therriault, also have filed a

motion for summary judgment. That motion rests on a separate record and involves

several legal issues that differ from those raised in the motion addressed here. The

Therriaults’ motion will be considered in a separate order.

*TIn count 1 of the complaint, the plaintiff alleged that each of the movants at bar is liable

for breach of contract. By prior order, the court dismissed the contract claims asserted

against the individual movants. The remaining respondent on count 1, John Bapst, does

not challenge the contract claim in the pending motion.

DSMF { 14. The plaintiff had held the same position during the two previous seasons.

DSMF 5-6. In July 2000, defendants Mary Ellen Therriault and Bill Therriault sent

John Bapst’s principal, defendant Joseph W. Sekera, a letter in which they expressed

concerns about comments made during the previous year by the plaintiff to members of

the John Bapst soccer team. DSMF {{ 19-20. The Therriaults had been advised of the

plaintiff's comments by their son, who was a member of the team. DSMF { 19. In the

letter, the Therriaults told Sekera that the plaintiff “regularly used sexual comments in his

practices such as “great day for a blow job, boys,’” that the plaintiff used descriptive

phrases such as “pussy-like” and that the plaintiff joked with a student about oral sex.

DSMF ][ 21-22. The plaintiff eventually conferred with Robert Cimbollek, who was the

athletic director at John Bapst. DSMF { 31. Hither then or later, the plaintiff

acknowledged that once he told members of the soccer team that it was a “great day for a

blow job.” Jd. Cimbollek told the plaintiff, directly or indirectly, that he might contact

some of the team players to find out what had happened, in light of what Cimbollek

reported was the plaintiff’s initial uncertainty about the statements. DSMF JJ 31, 34

PSMF { A5.° The plaintiff spoke with three team members about his conduct or their

reaction to it. DSMF J 38-39.

Sekera then met with the plaintiff. DSMF J 35. The plaintiff reiterated that he

had told members of the team one time that “it was a great day for a blow job” but denied

making the other statements noted in the Therriaults’ letter. DSMF 7 31. Sekera told the

plaintiff of his displeasure with the plaintiffs conduct and then said, as the plaintiff

recounted, that he (Sekera) would contact the Therriaults, advise them of his meeting

with the plaintiff and then “move forward.” See DSMF { 37 and “defendants’ reply;”

PSMF { 6 and defendants’ response. According to the plaintiff, Sekera also said that the

next step would be determined after the Therriaults’ had a chance to respond to that

development. Jd. The plaintiff and Sekera met again within several days, this time with

Cimbollek, and the plaintiff again acknowledged making the one statement. DSMF {J

40-41.

* Cimbollek’s testimony on this point is not entirely clear, as the parties have pointed out

in their rule 56(h) statements. However, those statements and the portions of the record

to which those statements refer support the factual points noted in the text.

Sekera subsequently met with Cimbollek, defendant Haddix (a member of the

John Bapst board of trustees and a recipient of a copy of the Therriaults’ letter),

defendant McDevitt (the chairman of the board of trustees) and defendant Hogan (a

member of the board of trustees and chair of the board’s athletic committee). DSMF {

42-43. Sekera’ only substantive discussion of these matters with the defendant board

members occurred during this meeting. DSMF 7 45. Sekera advised the others of the

plaintiff's acknowledgement. DSMF 7 44. McDevitt indicated that he was upset that the

plaintiff had contacted team members to discuss the Theriaults’ allegations. PSMF J A8.

Sekera then told the three board members that he would make any decision regarding

plaintiff but would consider their advice. DSMF { 44.* Haddix, McDevitt and Hogan

recommended that Sekera terminate the plaintiff immediately. DSMF J 48. The Board

members told Sekera that they were not attempting to pressure him into making that

decision. See Defendants’ response to PSMF J A9. Nonetheless, because of the manner

in which those board members expressed their recommendation, Sekera excused

Cimbollek from the meeting and confirmed with the board members that it was within his

authority, rather than theirs, to make the decision affecting the plaintiff. See DSMF TJ

49-50 and record references to Sekera deposition transcript at p. 30, 1. 16-24; p. 33, 1. 7-

11; p. 86, 1. 1-4.

After the meeting, Sekera told Cimbollek and then the plaintiff himself that he

(Sekera) had decided to terminate the plaintiff as the soccer coach. DSMF 51.

Cimbollek told Sekera that he would submit his own resignation the next day. PSMF J

-* The plaintiff denied DSMF { 44. However, a portion of the basis for that denial is not

supported by a meaningfully precise record reference, and the remaining ground for the

denial is not grounded on admissible evidence. Therefore, DSMF J 44 is deemed

admitted.

In addition to this particular statement of material fact, there are several other

record references to Cimbollek’s deposition transcript in which Cimbollek expresses his

opinion on the existence of pressure brought to bear on the people who were involved

directly or indirectly in the decision to terminate the plaintiff, and his opinions about the

motivations of the underlying decision to terminate the plaintiff. See, e.g., record

references associated with DSMF {J 37, 50, PSMF{ A 9, Al1-12, A22. To the extent

that those record references are to Cimbollek’s opinions and interpretations rather than to

admissible data based on personal knowledge, the court disregards them. See Bahre v.

Liberty Group, Inc., 2000 ME 75, J 12, 750 A.2d 558, 561 (material filed in opposition to

a motion for summary judgment must be based on the witness’ personal knowledge).

Al19. The plaintiff requested a written explanation of the basis for the employment

action. DSMF { 52. Sekera wrote that the plaintiff was terminated for using

inappropriate language. Although not included in the writing, Sekera stated that he also

based his decision on the plaintiff’s solicitation of some soccer team members for their

account of the plaintiffs conduct. See id., plaintiff’s reply and defendants’ response.

Historically, Sekera held the responsibility for deciding whether to fire an athletic

coach, although that often occurred on the basis of Cimbollek’s recommendation. See

DSMF { 4, plaintiff's response and defendants’ reply; PSMF J A4 and defendants’

response.

Although the record on this motion does not specify the sequence of events, near

the date of the meeting among Sekera, Cimbollek and the board members, Ms. Therriault

told Haddix that she had been advised that the plaintiff was considering filing a lawsuit

against her.» PSMF { A17.

A year prior to these events, in April 1999, the plaintiff learned from two soccer

team members that a teacher asked a student to pull down the pants of another student.

DSMF { 7. The plaintiff relayed this information to Cimbollek and Sekera. DSMF {{ 8-

9. Sekera and the plaintiff did not discuss the matter further. DSMF J 11. The plaintiff

believes that Haddix, McDevitt and Hogan pressured Sekera to terminate the plaintiff for

reasons related to the complaint he made against the teacher allegedly involved in the

1999 incident. DSMF {J 53, 55. However, the plaintiff does not know whether Haddix

or Hogan were aware of that complaint at the time they recommended termination in

August 2000, see DSMF { 53, plaintiff’s response and defendants’ reply, and there is no

record evidence that McDevitt had any such knowledge at that time.® This incident was

* In his opposing statement of material fact, the plaintiff suggests that within a few days

of the meeting among Sekera, Cimbollek and the three board members, Ms. Therriault

spoke with Haddix and that Haddix told her “that the Plaintiff might not continue to serve

as JBHS [John Bapst] coach.” PSMF { A17. This proposition is not supported by the

record reference, and the court therefore disregards it.

° In his response to DSMF { 57, the plaintiff makes a record reference to evidence that

prior to June 2000, McDevitt made a comment to a third person that he (McDevitt) knew

the plaintiff’s name and “wasn’t enamored” to hear it. This evidence is not admissible.

Although McDevitt’s purported statement itself is admissible, see M.R.Evid. 801(d)(2),

that statement is offered through a third person. To the extent revealed by this record,

not discussed at the meeting that Sekera held with Cimbollek, McDevitt, Hogan and

Haddix shortly prior to the plaintiff’s termination. DSMF { 46.

Summary judgment is proper only if the record on summary judgment shows that

there are no genuine issues of material fact and that the movant is entitled to judgment as

a matter of law. See M.R.Civ.P. 56. To survive a motion for a summary judgment, the

opposing party must produce evidence that, if produced at trial, would be sufficient to

resist a motion for a judgment as a matter of law; "[t]he plaintiff must establish a prima

facie case for each element of the cause of action." Rodrigue v. Rodrigue, 1997 ME 99,

18, 694 A.2d 924, 926. If the evidence favoring the nonmoving party is ‘merely

colorable, or is not significantly probative, summary judgment may be granted.”

Bouchard v. American Orthodontics, 661 A.2d 1143, 1145 (Me. 1995) (internal

punctuation and citation omitted).

A. Wrongful discharge (count 2)

In count 2 of his complaint, the plaintiff alleges that John Bapst, Sekera,

McDevitt, Hogan and Haddix are liable for the common law tort of wrongful discharge

from employment. Maine has not yet recognized this as.a valid cause of action. Bard v.

Bath Iron Works Corp., 590 A.2d 152, 156 (Me. 1991). In cases where this claim has

been raised and deferred by the Law Court, the Court has noted that in the majority of

those jurisdictions where this cause of action has been adopted, it is limited to

circumstances where “the employer’s motives violate some clearly defined public

policy.” Larrabee v. Penobscot Frozen Foods, Inc. 486 A.2d 97, 100 (Me. 1984).

In his opposition to the motion at bar, the plaintiff relies on Larrabee to define a

claim for wrongful discharge as one where the employer is motivated by ill will, personal

animosity or malice toward the employee. “Plaintiff’s Rule 7(c) Memorandum in

Opposition to Summary Judgment Motion Filed by Defendants’ [sic] John Bapst, et al.”

at p.6. This correctly reflects the nature of Larrabee’s allegations in that case. See 486

A.2d at 100. However, in its opinion, the Larrabee Court went on to discuss other

jurisdictions’ treatment of the wrongful discharge claim as one that would provide redress

when the employer is motivated by “some clearly defined public policy.” Jd. Continuing

there is no hearsay exception that would support the admission of the third party’s

testimony of McDevitt’s earlier comment.

with its discussion, the Court then noted, “We do not rule out the possible recognition of

such a cause of action when the discharge of an employee contravenes some strong

public policy.” 7d. In this way, the Law Court made clear the limited potential

application of a wrongful discharge claim, and an employment action predicated on ill

will, personal animosity or rancor toward an employee — in the absence of the breach of a

strong public policy — is therefore insufficient. Consequently, to defeat the motion for

summary judgment on count 2 in this case, the plaintiff must raise a genuine issue of

material fact regarding the existence of a strong public policy that was violated when he

was discharged. He has failed to raise such an issue.

The dispute between the plaintiff and the movants was “purely private.” See

Larrabee, 486 A.2d at 100. The plaintiff was an employee of a privately operated school.

The plaintiff argues on this motion that the true reasons for his termination are “entirely

unclear” on this record. “Plaintiff’s Rule 7(c) Memorandum in Opposition to Summary

Judgment Motion Filed by Defendants’ [sic] John Bapst, et al.” at p. 9. Because the

plaintiff bears the burden of establishing a prima facie case for each element of his

claims, this observation by itself undermines his argument that the employment action

violated a public policy: if the record does not suggest a basis for termination, then it

cannot be argued that such a basis embodies a strong public policy interest.

The plaintiff also argues that, to the extent revealed by this record, he may have

been terminated because he contacted team members about his prior conduct at the

suggestion of the school’s athletic director, because he engaged in activities unrelated to

his employment obligations and because Ms. Therriault had told Haddix that she had

heard of the possibility that the plaintiff would file suit against her. Under the

circumstances of this case, the court cannot find that any of these motivations alleged by

the plaintiff implicates a “strong public policy.” Of these factors, the one that most

strongly supports the plaintiff’s argument is Therriault’s conversation with Haddix about

the possibility of litigation. However, there is no evidence that Sekera — who, the record

shows, made the termination decision — was aware of this datum. Further, the threatened

litigation presumably related to statements regarding sexual activity, allegedly made by a

teacher to student-athletes, and which the claimant partially acknowledged that he made.

Therefore, even if in some circumstances an employment action in response to an

employee’s threat of legal action can be seen to violate a strong and clearly defined

public policy interest, it does not arguably do so here.

Finally, this record does not support a factual argument to support the plaintiff’ s

belief that he was discharged because of his 1999 report of the conduct of another

teacher. Even if it did, that argument would not generate a legal claim for wrongful

discharge because of the statutory protections available to the plaintiff under the

Whistleblowers’ Protection Act, 26 M.R.S.A. §§ 831 et seg. See Bard, 590 A.2d at 156.

Therefore, on these grounds, the court concludes that if in Maine there exists a

tort of wrongful discharge, such a claim would not be availing to the plaintiff here. The

court need not and does not address the movants’ remaining arguments in support of their

motion for summary judgment on count 3.

B. Interference with contractual relations (count 3)

In count 3 of his complaint, the plaintiff purports to allege that McDevitt, Hogan

and Haddix are liable to him for wrongful interference with contractual relations. In fact,

count 3 is framed as a claim against defendants Bill Therriault and Maryellen Therriault

only: he seeks money damages from them alone. However, the previous assignee justice

ruled in a written order that count 3 should be construed as one that states a claim against

the other defendants as well. See “Order on Motion to Dismiss” dated May 10, 2001.

Through this order, all parties have been placed on notice of the scope of count 3 as

viewed by the court, and due to that notice, all defendants have had the opportunity to be

heard on the viability of the claim against them.

A factor further defining the parameters of count 3 is the substance of the

plaintiff’s argument in opposition to the pending motion for summary judgment. In

responding to the issues raised by this count, the plaintiff argues only that the record on

this motion raises issues regarding the liability of McDevitt, Hogan and Haddix. He

makes no such argument with respect to John Bapst or Sekera.’ From this, the court

infers that the plaintiff does not seek to pursue his claim in count 3 against those two

defendants.

’ Clearly, this claim could not be brought against John Bapst, because the school was one

of the parties to the contract itself.

Therefore, against this background, the court treats count 3 as a claim against

McDevitt, Hogan and Haddix, as well as against Bill Therriault and Maryellen

Therriault.*

A claim for wrongful interference with contractual relations requires proof of the

following elements: (1) the existence of a valid contract between the claimant and a third

party; (2) interference by the defendant with that contract through fraud or intimidation;’

(3) the loss of the contractual benefits that would have continued in the absence of the

intimidation; and (4) damages. James v. MacDonald, 1998 ME 148, | 7, 712 A.2d 1054,

1057; Pombriant v. Blue Cross/Blue Shield of Maine, 562 A.2d 656, 659 (Me. 1989);

MackKerron v. Madura, 445 A.2d 680, 683. The fraud that may be sufficient to sustain a

claim for this cause of action carries its conventional meaning: “(1) mak(ing) a material

representation (2) of a material fact (3) with knowledge of its falsity or in reckless

disregard of whether its is true (4) for the purpose of inducing another to act or refrain

from acting in reliance on it, (5) and the other person justifiably relies on the

representation as true and acts upon it to the damage of the plaintiff.” Perit v. Key Bank

of Maine, 688 A.2d 427, 430 (Me. 1996). As used in the definition of this claim,

“{ntimidation” means “some threat a defendant made that was within its control to

fulfill.” Town and Country Motors, Inc. v. The Bill Dodge Automotive Group, Inc., 115

® Against the same background, it is immaterial whether this court agrees with the

construction of count 3 developed by the prior assignee justice.

” The plaintiff frames his opposition to this part of the motion based in part on an

argument that this claim may be established if the defendant’s conduct amounted to

fraud, intimidation, misconduct or undue influence. Those latter two circumstances

appear to be based on the Law Court’s references to them in Northeast

CoatingTechnologies, Inc., 684 A.2d 1322, 1325 (Me. 1996) and Town of Lisbon v.

Thayer Corp., 675 A.2d 514, 517 (Me. 1996). In both of those cases, however, the Court

defined the tort of wrongful interference with contractual relations, in the classic form,

that is, by requiring proof of fraud or intimidation, but limiting the claim to those

circumstances. Northeast Coating, 684 A.2d at 1325; Town of Lisbon, 675 A.2d at 517.

Then, in both cases, the Court went on to conclude that the plaintiff had not presented

evidence of any of those forms of conduct. From that context, this court does not take the

Law Court’s references to undue influence and misconduct as signaling an expansion of

conduct that is actionable. Rather, undue influence and misconduct are best seen as

synonymous with fraud and intimidation. Nonetheless, even if undue influence and

misconduct have meanings that go beyond the meanings of fraud and intimidation, the

plaintiff has not made out a prima facie case of such allegations on this record.

F.Supp.2d 31, 33 (D.Me. 2000). Fraud or intimidation in the context of a claim for

wrongful interference with contractual relations may be established by a preponderance

of the evidence. Petit, 688 A.2d at 432-433.

Here, the plaintiff does not argue meaningfully that McDevitt, Hogan or Haddix,

engaged in fraudulent conduct, and the record would not support such an argument.

Additionally, the record at bar does not allow a genuine factual contention that any of

those defendants engaged in intimidation, as that term is used in Town and County

Motors, to interfere with the employment contract between the plaintiff and John Bapst.

There is no evidence that any of the board members made any threats or that any of them,

as individual members of the Board of Trustees, had the power to carry out any threat

they could make. At most, the record supports a factual argument that the board

members strongly recommended to Sekera that he terminate the plaintiff’s employment

as a soccer coach. Sekera agreed with that recommendation, but only after he

admonished the board members that the decision was his rather than theirs. However,

there can be no argument on this record that the board members made a threat of some

sort that was within their control to accomplish.

The entry shall be:

For the foregoing reasons, the court grants the motion for summary judgment

filed by defendants John Bapst Memorial High School, Joseph Sekera, John McDevitt,

William Hogan and James Haddix. Summary judgment is entered for those defendants

on counts 2 and 3 of the complaint.

Dated: June 10, 2002

fom

lainé juperior Court

etl

Justice

’ Date Filed___11/17/2000 PENOBSCOT Docket No. cv-2000-218

County

DISMISSED - 5/10/01 - JOSEPH SEKERA, JOHN MCDEVITT,

Action ___ CONTRACT WILLIAM HOGAN & JAMES HADDIX

Justice Mead recused

ASSIGNED TO JUSTICE FRANCIS C MARSANO

RE~ASSIGNED TO JUSTICE ANDREW M. MEAD

REASSIGNED TO JUSTICE JEFFREY L. HJELM

LOUIS JANICKI

JOHN BAPST MEMORIAL HIGH SCHOOL,

JOSEPH SEKARA, AJOHN MCDEVITT,

*WILLIAM HOGAN, *JAMES HADDIX,

Vs BILL THERRIAULT & MARYELLEN THERRIAULT

Plaintiff’s Attomey

BILLINGS & SILVERSTEIN

P O BOX 1445 - 47 Main Street

BANGOR ME 04402-1445

BY: Jeffrey M. Silverstein, Esq.

Defendant’s Attorney

Law Office of Carl F. Rella, P.A.

PO Box 2700 :

Bangor, Maine 04402-2700

BY: Carl F. Rella, Esq.

FOR: Mary Ellen Theriault & Bill Theriault

Paul W. Chaiken, Esq.

P O Box 1401 - 84 Harlow St.

Bangor, Maine 04402-1401

Date of For: John Bapst Memorial High School,

ate 0 Joseph Sekera, John McDevitt, William

Entry Hogan, and James Haddix

11/17/00 Complaint filed - Exhibits 1 & 2 attached.

11/17/00 Case File Notice Postcard forwarded to Plaintiff's counsel.

11/29/00 Officer's Return of Service as to Bill Therriault filed (s.d. 11/21/00)

11/29/00 Officer's Return of Service as to Maryellen Therriault filed.

(s.d. 11/21/00)

12/6/2000 Defendants' Answer to the Plaintiff's Complaint Filed.

12/6/2000 | Notification of Discovery Service Filed by Defendants; Defendants'

Interrogatories Propounded to Plaintiff.

12/7/00 Acknowledgment of' Receipt of Summons and'Complaint as to Defendant

John Bapst Memorial High School filed. (s.d. 12/6/00) by Paul W. Chaiken,

Esq. ~

12/7/00 Acknowledgment of Receipt of Summons and Complaint as to Defendant

Joseph Sekara filed.(s.d. 12/6/00) by Paul W. Chaiken, Esq.

12/7/00 Acknowledgment of Receipt of Summons and Complaint as to Defendant

John McDevitt filed. (s.d. 12/6/00) by Paul W. Chaiken, Esq.

12/7/00 Acknowledgment of Receipt of Summons and Complaint as to Defendant

William Hogan filed. (s.d. 12/6/00) by Paul W. Chaiken, Esq.

12/7/00 Acknowledgment of Receipt of Summons and Complaint as to Defendant

James Haddix filed. (s.d. 12/6/00) by Paul W. Chaiken, Esq.

12/22/00 | By letter, Atty. Paul Chaiken indicates he will be representing the

defendants John Bapst Memorial High School, Joseph Sekera, John McDevitt,

William Hogan, and James Haddix.

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, SS. CIVIL ACTION

Docket No. CV-00-218 | FILED & ENTERED

fot ef SUPERIOR COURT

JUN 12 2002

Louis Janicki,

Plaintiff PENOBSCOT COUNTY

Order on Motion for Summary

Judgment (Motion of Defendants

V. Mary Ellen Therriault and Bill

Therriault) DONALD L. GARBRECHT

LAW LIBRARY

John Bapst Memorial High School et al., JUN 21 2002

Defendants

Pending before the court is the motion for summary judgment filed by defendants

Mary Ellen Therriault and Bill Therriault.’ In their motion, they seek judgment on all

claims pending against them: wrongful interference with contractual relations (count 3),

defamation (count 4), intentional infliction of emotional distress (count 5) and negligent

infliction of emotional distress (count 6). In association with this motion, the Therriaults

and the plaintiff have filed written argument and rule 56(h) materials. The court has

considered these submissions.

The relevant potions of the record on summary judgment establish the following

facts. The Therriaults’ son, Colby, entered John Bapst High School as a freshman in the

fall of 1999 and played on the junior varsity soccer team that was coached by the

plaintiff. DSMF {J 1-4, POSMF 3. Colby’s interest in soccer appeared to wane during

the summer of 2000, but he was reluctant to advise his parents of the reason. DSMF { 4.

He eventually told Mary Ellen Therriault that the plaintiff frequently made comments that

he felt were inappropriate. DSMF {7 5. These included the remark, “It’s a great day for a

blow job, boys,” and the comment that Colby “was playing like a pussy.” Id. Colby told

' The remaining defendants, John Bapst Memorial High School, Joseph Sekera, John

McDevitt, William Hogan and James Haddix, also filed a motion for summary judgment.

That motion, which rests on a separate record and involves several legal issues that differ

from those raised in the Therriaults’ motion, is addressed in an order dated June 10, 2002.

Mary Ellen that these comments were not isolated. DSMF {[ 6.” He also indicated his

willingness to discuss the matter with school officials if necessary. DSMF { 7.

Mary Ellen prepared a letter that she and Bill Therriault signed and that, on July

21, 2000, she sent to defendant Joseph Sekera, who was the principal of John Bapst.

DSMF {{ 8-9, 13.2 She also sent a copy to Robert Cimbollek, the school’s athletic

director, and to James Haddix, a member of the school’s board of trustees, whom she

knew. DSMF ¥ 9. Mary Ellen did not send a copy of the letter to the plaintiff or contact

him directly about this matter. DSMF { 10; POSMF { A9. Mary Ellen was familiar with

a “Parent/Coach Communication Guide” provided to the parents of student-athletes.

POSMF { A6é. The “guide” indicates that “[t]he treatment of your child, mentally and

physically,” is an appropriate topic of conversation between a parent and a coach and that

the parent can meet with the school’s athletic director, if the meeting with the coach was

not satisfactory. POSMF { 15. However, because of the nature of the comments that the

plaintiff reportedly made to the soccer team members, Mary Ellen felt that it would be

more appropriate for school officials to address this problem with the plaintiff. DRSMF

q AY.

After Cimbollek learned of the allegations in the Therriault letter, he advised the

plaintiff that if he (the plaintiff) could not remember whether he made the statements of

concern to the Therriaults, the plaintiff should contact members of the soccer team to try

to determine if the allegations were true. POSMF { 24. After Sekera had met with the

plaintiff and Cimbollek, Sekera learned that the plaintiff had made those player contacts.

DSMF ff 21-23.

*In his opposing statement of material fact, the plaintiff asserts that he was told by a third

person that Colby was unhappy that he was not selected as a member of the school’s

varsity soccer team. See POSMF { A25. This statement constitutes hearsay within

hearsay. Although Colby’s statement may be admissible, see M.R.Evid. 803(3), the

declaration of Colby’s prior statement does not fall within any hearsay exception and is

thus inadmissible. See M.R.Evid. 805.

> The Therriaults’ letter was apparently marked as exhibit 1 during the deposition of the

plaintiff. Unlike the other exhibits to that deposition, that one is not included with the

transcript. During the plaintiff’s deposition testimony, however, he stated that the exhibit

is the same as the one appended to his complaint. (Janicki deposition page 5, line 19.)

The court has used the latter for purposes of this motion.

conversation with Sekera on August 7. POSMF Jf Al8-A19. Mary Ellen advised

Sekera that she had learned that the plaintiff had discussed her letter with a student.

POSMF J A18; DRSMF { A18. Mary Ellen expressed concern either that the letter was

on the internet, see POSMF { A18 (Sekera’s testimony) or that the school’s students

might use the internet as a conduit to discuss the issues raised in her letter, see DRSMF J

A18 (Mary Ellen’s testimony).° The use of the internet had no bearing on Sekera’

ultimate decision to fire the plaintiff. DRSMF J Al8. She told Sekera that if the plaintiff

denied discussing the letter with students, she would disclose to Sekera the name of the

student whom she understood had such a conversation with the plaintiff. DRSMF { A18.

Also on August 7, Mary Ellen spoke with Haddix but did not made any

suggestions to him about the course she felt the school should take regarding the plaintiff.

POSMF { A20; DRSMF { A20. She spoke again with Haddix on August 10 and told him

that she had learned that the plaintiff had refused to rent ice time to a hockey team on

which Colby was a member.’ POSMF J A20; DRSMF J A20. She also informed Haddix

that she had learned that the plaintiff was contemplating legal action against her and her

husband. POSMF { A20. Haddix responded that he had concerns about the plaintiff’s

° At a meeting between the plaintiff and Sekera, Sekera asked the plaintiff if he had

posted the Therriaults’ letter on the internet. POSMF { Al9. There is no evidence in this

record regarding who may have posted the letter on the internet — if in fact that was done:

the issue remains subject to genuine dispute, although it is not a material issue because it

had no affect on the plaintiff’s termination. DRSMF J A18.

’ The plaintiff asserts that the Penobscot Valley Hockey Conference Board was

dissatisfied with the plaintiffs decision not to provide ice time for Colby’s team and that

the board decided not to use the plaintiff’s ice rink. See POSMF {J A26-A27. Mary

Ellen was a member of that Board. However, on this limited record, the court cannot and

does not attribute those board decisions to Mary Ellen. The information regarding the

board’s dissatisfaction with the plaintiff’s decision did not derive from Mary Ellen.

Further, Mary Ellen was not involved in the board’s decision not to use the plaintiff’s

rink, and, in any event, she had reservations about that decision because of the limited

_ availability of other facilities. DRSMF { A27. Finally, because the plaintiff’s assertions

regarding the hockey board’s decisions do not set out the date when these events

occurred, they cannot be viewed as material because, without some temporal connection

to the Therriaults’ alleged conduct, they have no relevance. Nonetheless, the comments

made by Mary Ellen to Haddix, to the extent set out in the text of this order, remain part

of the record.

continuation of employment with the school but also said that “they” would continue to

look into the matter. Jd.; DRSMF { A20 and record references.®

Several days after his meeting with the plaintiff and Cimbollek, Sekera met with

Cimbollek and three members of the school’s Board of Trustees, namely, defendants

John McDevitt, William Hogan and Haddix. POSMF § A31. During the meeting,

Sekera excused Cimbollek from the room so that he (Sekera) could discuss with the

board members his impression that they were instructing him to fire the plaintiff.

POSMF { A32. After the meeting, Sekera informed the plaintiff of his termination the

plaintiff’ s employment because, as he admitted, he told the members of the soccer team

that it was ‘a great day for a blow job” and because he had contacted several team

members to discuss his conduct. DSMF { 24; POSMF ¥ A33. In response to a request

made by the plaintiff, Sekera provided a written statement identifying only the plaintiff’ s

comment as the basis for termination. POSMF { 24.’

The plaintiff does not believe that he was fired because of the complaint made by

the Therriaults. DSMF § 26.”

After he became aware of the Therriaults’ letter, the plaintiff has experienced

stress-related symptoms and has consulted with a physician. POSMF {J A38-A39.

* The record does not support the plaintiff’s assertion that Haddix “suggested that the

Plaintiff might not continue to serve as JBHS coach.” See POSMF { A20.

” The plaintiff’s opposing statement of material facts includes assertions regarding the

opinions of the plaintiff and of Cimbollek about the reasons why the school terminated

the plaintiff's employment contract. See, e.g., POSMF {J 25-26, A32, A36-A37 and

record references. It also includes an assertion about Cimbollek’s impressions about

disciplinary decisions made by Sekera against the plaintiff. See POSMF J A30. These

opinions do not rise to the level of admissible evidence, and to the extent that these

assertions go beyond information based on personal knowledge, the court therefore does

not consider them as part of the record on the motion at bar.

In response to this assertion made by the movants, the plaintiff qualifies it by stating

that the Therriaults’ letter “provided JBHS a venue in which to unlawfully terminate him

from employment.” POSMF { 26. The meaning of this response is unclear. Further, the

record reference provided by the plaintiff does not provide support for the response. —

Therefore, the Therriaults’ statement is deemed admitted, and the court disregards the

plaintiffs response.

Summary judgment is proper only if the record on summary judgment shows that

there are no genuine issues of material fact and that the movant is entitled to judgment as

a matter of law. See M.R.Civ.P. 56. To survive a motion for a summary judgment, the

opposing party must produce evidence that, if produced at trial, would be sufficient to

resist a motion for a judgment as a matter of law; "[t]he plaintiff must establish a prima

_ facie case for each element of the cause of action." Rodrigue v. Rodrigue, 1997 ME 99,

(8, 694 A.2d 924, 926. If the evidence favoring the nonmoving party is ‘merely

colorable, or is not significantly probative, summary judgment may be granted.”

Bouchard v. American Orthodontics, 661 A.2d 1143, 1145 (Me. 1995) (internal

punctuation and citation omitted).

A. Wrongful Interference with Contractual Relations (count 3)

A claim for wrongful interference with contractual relations requires proof of the

following elements: (1) the existence of a valid contract between the claimant and a third

party; (2) interference by the defendant with that contract through fraud or intimidation;"

(3) the loss of the contractual benefits that would have continued in the absence of the

intimidation; and (4) damages. James v. MacDonald, 1998 ME 148, (7, 712 A.2d 1054,

1057; Pombriant v. Blue Cross/Blue Shield of Maine, 562 A.2d 656, 659 (Me. 1989);

Mackerron v. Madura, 445 A.2d 680, 683. The fraud that may be sufficient to sustain a

claim for this cause of action carries its conventional meaning: “(1) mak(ing) a material

representation (2) of a material fact (3) with knowledge of its falsity or in reckless

disregard of whether its is true (4) for the purpose of inducing another to act or refrain

" The plaintiff frames his opposition to this part of the motion based in part on an

argument that this claim may be established if the defendants’ conduct amounted to