# Janicki v. John Bapst Memorial High Sch.

> Superior Court of Maine · October 1, 2001

URL: https://www.frixlaw.com/law-library/cases/10807035

## Case

- **Court:** Superior Court of Maine
- **Decided:** October 1, 2001
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Francis C. Marsano
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10807035

## How later opinions describe it (automated extraction)

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

## Opinion text

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

27
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
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.
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.” Petit v. Key Bank
of Maine, 688 A.2d 427, 430 (Me. 1996). As used in the definition of this claim,
“intimidation” 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
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.

The record on summary judgment does not support an argument that John Bapst
terminated the plaintiff’s employment contract by relying on or acting on the information
provided by the Therriaults. Indeed, as is discussed above, the record shows that the
plaintiff does not even believe that the Therriaults’ letter caused his termination. The
record demonstrates that Sekera fired the plaintiff (1) because he admitted telling
members of the soccer team that it was a “good day for a blow job” or (2) because he
contacted team members about his conduct, or (3) because of the combination of these
circumstances. On this record, any other explanation for the school’s decision is
speculative. The first ground was based on the plaintiff’s own admission to Sekera. The
second ground arose because Cimbollek advised the plaintiff to take that follow-up
action. Neither of these grounds for termination are attributable to the Therriaults.

Similarly, any statement made to Sekera by Mary Ellen regarding the internet is
immaterial. The record does not support the plaintiff’s argument that she implied to
Sekera that the plaintiff posted the letter on the internet (indeed, the record does not even
establish that the contents of the letter were published electronically), and the record
establishes that this circumstance did not play a part in the school’s decision to fire the
plaintiff from his coaching position.

Finally, the record contains no evidence that either Mary Ellen Therriault or Bill
Therriault intimidated John Bapst (a party to the plaintiff’s employment contract) in any
way, as that term is used in the context of this type of claim. There is no evidence that
either defendant made a threat of any kind. In the letter, the Therriaults stated expressly
that they wanted to advise the school of the information that Colby disclosed to them.

During subsequently phone conversations between Mary Ellen and school
representatives, Mary Ellen made inquiry about the plaintiff’s status with the school but
did not urge or even suggest that the school take some action.

Because the record provides no factual support for the elements of count 3
discussed in this order, the court need not and does not address the Therriaults’ remaining
arguments in support of its motion for summary judgment on count 3.

B. Defamation (count 4)

A successful claim for defamation requires proof of a false or defamatory
statement concerning another person, an unprivileged publication of that statement to a
third party, fault amounting to at least negligence by the publisher, and either an
actionable statement regardless of special harm or special harm caused by the
publication. Rice v. Alley, 2002 ME 43, { 19, 791 A.2d 932, 936.

Here, the allegedly defamatory comments consist of the following statements
made by the Therriaults: (1) that the plaintiff told members of the soccer team that it was
a “great day for a blow job;” (2) that the plaintiff described the quality of the members’
play as “pussy-like;” (3) that the plaintiff joked with a student about oral sex with his
girlfriend; and (4) that the plaintiff made such sexually oriented comments regularly. The
Therriaults made these statements about the plaintiff’s conduct in a letter they sent to
Sekera, Cimbollek and Haddix.

In support of their motion for summary judgment on this count, the Therriaults
first argue the statements are true or substantially true. The record, however,
demonstrates only that the plaintiff once told members of the soccer team that it was a
“great day for a blow job.” There exists a factual dispute about whether he made that
statement more than once, and there also are genuine factual dispute about whether the
plaintiff made either of the other statements and about the frequency with which he made
any such statements. These issues, which are the subject of these factual disputes, cannot
be seen as substantially similar to the statement that the plaintiff agrees he made. “Slight
inaccuracies of expression [relative to the statement actually made by the plaintiff] are
immaterial provided that the defamatory charge is true in substance.” RESTATEMENT
(SECOND) OF TORTS § 581A, cmt. f (1977); McCullough v. Visiting Nurse Service of
Southern Maine, Inc., 1997 ME 55, ¥ 10, 691 A.2d 1201, 1204. Here, the differences

between the one statement made by the plaintiff as established by the record, and the
remaining conduct attributed to him by the Therriaults are sufficient to bring them
outside of the protective scope of section 581A.”

The Therriaults next argue that any allegedly defamatory communications are
conditionally privileged and therefore not actionable. “Whether a defendant is entitled to
the common law conditional privilege is a question of law; whether the defendant abused
the privilege is a question of fact.” Rice, 2002 ME 43, J 21, 791 A.2d at 936. A
communication is conditionally privileged when the recipient of a defamatory statement
has an important interest that will be promoted by “frank communication.” Id., J 22, 791
A.2d at 936. The privilege promotes free speech, and the conditions or limitations on that
privilege ensure that the speech is not “absolutely unfettered.” Jd. Here, the court
concludes that statements of the type made by the Therriaults to school officials are
entitled to a conditional privilege. The record reveals that parents of a high school
student learned, from that student, that a coach made sexualized and highly inappropriate
comments to the student and other students of comparable age. There is a high level of
importance attached to the disclosure of that information to proper school officials, in
order to promote and protect the interests of other students and of the school itself.
Further, disclosure of this information to the school directly affects the interests of the
publishers (here, the Therriaults) because of the prospects for further contact between the
plaintiff and Colby. See generally RESTATEMENT (SECOND) OF TORTS at § 594,

When a conditional privilege is abused, it is not available to protect the publisher
from liability. A conditional privilege is abused when the statement is made outside of
“normal channels” or when it is made with malicious intent. Rice, 2002 ME, J 23, 791
A.2d at 937. The plaintiff in a defamation action bears the burden of showing that the
conditional privilege was abused. Gautschi v. Maisel, 565 A.2d 1009, 1011 (Me. 1989).
To determine whether, on this record, the plaintiff has generated a contention that the
Therniaults abused their conditional privilege, it is necessary to bifurcate the allegedly

defamatory material.

The Therriaults do not raise the related but separate question of whether this record
supports an allegation that they were negligent in any aspect of their conduct that is
within the scope of the plaintiffs defamation claim. See generally RESTATEMENT
(SECOND) OF TORTS at §§ 580A-580B. Therefore, the court does not address that issue
except in the context of the conditional privilege raised by the defendants.
First, while the record establishes that Colby was the source of most of the
Therriaults’ information, that record does not establish the basis for their understanding
that the plaintiff joked with students about oral sex with his girlfriend.” A statement is
made maliciously when the person making the statement recklessly disregards the truth or
falsity of the statement. Cole v. Chandler, 2000 ME 104, 1 7, 752 A.2d 1189, 1194.
Because the record at bar provides no basis for Mary Ellen to have believed that this
portion of her statement was true, the court concludes that the record generates a genuine
issue of material fact concerning the applicability of the conditional privilege as it relates
to this aspect of the communication.

With respect to the remaining components of the Therriaults’ written
communication with Sekera, however, the record demonstrates that they did not act
maliciously. Rather, Colby affirmatively provided them with that information that they
relayed to the school. It is important to note that Colby was reluctant to disclose his
report of the plaintiff’s conduct and that he later conveyed a willingness to reiterate this
information to school officials. Under these circumstances, there can be no argument that
the Therriaults acted with malice in communicating Colby’s report to the school.

The next question is whether the Therriaults abused their conditional privilege by
relaying this information, which is otherwise protected, directly to Sekera. The plaintiff
correctly notes that to maintain the benefit of the conditional privilege, the subject
material must be communicated through normal channels. See Gautschi, 565 A.2d at
1011. Here, the plaintiff argues that those normal channels consist, first, of direct contact
with the coach (here, the plaintiff), and then to the athletic director (here, Cimbollek).
This factual argument is based on the contents of the “guide” issued to the parents of
student-athletes. In this instance, the Therriaults sent their letter to Sekera, with a copy to

Cimbollek and Haddix.

'S Tn their statement of material fact, the Therriaults assert that this information was based
on statements made to Mary Ellen by Debbie Hunter, who was the mother of another
John Bapst student. DSMF { 12. However, this assertion has been properly controverted
because Ms. Hunter has also denied having any conversation about the plaintiff with
Mary Ellen. POSMF 12.

10
As support for the reference to “normal channels,” the Gautschi Court relied on
comment a of section 599 in the Restatement."* From the commentary in the
Restatement, the court gathers that to preserve a conditional privilege, a publisher is
required to communicate through “normal channels” in order to prevent the disclosure of
the material “to some person not reasonably believed to be necessary for the
accomplishment of the particular privilege. . . .’ RESTATEMENT (SECOND) OF TORTS at §
599, cmt. a. If the interests justifying the privilege are not promoted by publication to a
particular person, then the privilege is abused to the extent that the privilege was
exceeded. See id. at § 604. “However, this is not true when the publication to those
persons is reasonably incidental to the communication of the defamatory material to the
person whose knowledge is reasonably believed to be necessary or useful for the
protection of the interest.” Jd., cmt. a. Here, the court concludes here that the scope of
the privilege (which is a question of law) is determined on the basis of the nature of the
responsibilities of the people to whom the Therriaults sent the letter. In this case, the

conditional privilege protects the Therriaults’ communications with Cimbollek and
Sekera. Cimbollek was the plaintiff's supervisor, and Sekera was the school’s principal.
Both have a fundamental interest in learning of the type of conduct that the Therriaults
described in their letter, and it is indisputably reasonable to believe that it is “necessary or
useful” for them to be aware of the information contained in the Therriaults’ letter.
Therefore, as a matter of law, the Therriaults are protected from liability for defamation
on the basis of their communications with them, to the extent that they conveyed
information that they received from Colby.

However, the Therriaults also sent a copy of their letter to Haddix, who was a
member of the board of directors, because they knew him. The record on the motion at
bar contains little information about the role that would be played either by Haddix
individually or by the Board of Trustees as an entity, in connection with the personnel
issues raised by the Therriaults in their letter. If anything, Sekera’s discussion with the

board members at the meeting where he excused Cimbollek appears to demonstrate that

“ The Court also cited Greenya v. George Washington University, 512 F.2d 556 (D.C.
Cir.), cert. den’d, 423 U.S. 995 (1975). The opinion in Greenya also referred to the
“normal channels” requirement but did not elaborate.

ll
none of the board members nor the board itself would have the authority to make a
termination decision. Any role short of that is not revealed by this record. Consequently,
the court concludes that this record leaves open the factual question of whether the
Therriaults abused the conditional privilege otherwise available to them with respect to
information provided by Colby, when they published that information to Haddix.

The Therriaults argue finally that the record does not support an argument that the
plaintiff sustained damages as a result of any defamation. Because the arguable
actionable statements may be seen to injure the plaintiff’s professional reputation, he is
not required to prove actual damages. Lester v. Powers, 596 A.2d 65, 69 (Me. 1991);
Saunders v. Van Pelt, 497 A.2d 1121, 1124-25 (Me. 1985).

C. Intentional Infliction of Emotional Distress (count 5)

In order to prevail on a claim of IED, the plaintiff must prove here that the
defendants intentionally or recklessly inflicted severe emotional distress or were certain
or substantially certain that such distress would result from their conduct; that the
defendants’ conduct was so extreme and outrageous as to exceed all possible bounds of
decency and must be regarded as atrocious and utterly intolerable in a civilized
community; that the defendants’ conduct caused the plaintiff’s emotional distress; and
that the plaintiff’s emotional distress was so severe that no reasonable person could be
expected to endure it. Curtis v. Porter, 2001 ME 158, { 10, 784 A.2d 18, 22-23. The
court is allocated the responsibility to decide whether a defendant’s alle ged conduct “may
reasonably be regarded as so extreme and outrageous to permit recovery....”
Champagne v. Mid-Maine Medical Cenier, 1998 ME 87, { 16, 711 A.2d 842, 847.

An analysis of the Therriaults’ motion on count 5 must start with an examination
of that part of the plaintiff’ s TIED claim that is based on their publication of information
that they learned from Colby. As is noted above, the record establishes that the
Therriaults did not communicate that information with malice toward the plaintiff.
Indeed, that part of the Therriaults’ communication enjoys the benefit of a conditional
privilege because the disclosure of that information to Sekera and Cimbollek was of real
importance to the school, to them, to Colby and to others who could be affected by the

plaintiff's conduct. To this extent, the Therriaults’ conduct was protected and lawful.

12
These same circumstances cannot support a factual contention that the publication
of this material to Haddix 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... .” Curtis, 2001 ME 158. { 10, 784 A.2d at 22. It is undisputed that
Haddix was a member of the school’s board of trustees. The Therriaults chose to send a
copy of the letter to him because they were acquainted with him, and because he was a
member of the school’s board of trustees and thereby had a palpable interest in the issue
(regardless of the role he would actually play in the outcome of the personnel decision).
See Wytrwal v. Saco School Board, 70 F.3d 165, 173 (1 Cir. 1995) (applying Maine law,
balancing societal interests in determining whether allegations were sufficient to support -
aIIED claim). A fact-finder must determine whether in fact the Therriaults abused their
conditional privilege by including Haddix in their communication. However, that
decision does not support a claim for IZED.

The next question is whether, under these circumstances, the Therriaults may be
liable for ITED by also communicating a report that the plaintiff joked with a student
about oral sex with his girlfriend. (This is the aspect of the Therriaults’ letter that the
record indicates was not based on Colby’s disclosure to them.) This aspect of the
Therriaults’ letter must be seen in the context of the other portions of it, all of which were
subject to a conditional privilege. It must also be considered against the backdrop of the
plaintiff’s subsequent acknowledgement that he once did tell members of the soccer team
that it was a “great day for a blow job.” While the record does not reveal the basis for
this portion of the communication, it constitutes a very limited element (one sentence) of
the entire letter. It also is similar in nature to that part of the letter that cannot support an
NED claim. The court concludes that its incremental impact on the remainder of the
letter, which is not actionable in count 5, is not sufficient to support a conclusion that it
embodies conduct that is “extreme,” “outrageous,” in excess of “all possible bounds of
decency,” “atrocious” and “utterly intolerable in a civilized community.” Curtis, 2001
ME 158, { 10, 784 A.2d at 22. See generally Krennerich v. Inhabitants of the Town of
Bristol, 943 F.Supp. 1345, 1356-57 (D.Me. 1996) (allegations of wrongful discharge
from employment and violation of due process rights insufficient to support ITED claim);

Loe v. Town of Thomaston, 600 A.2d 1090, 1093 (Me. 1991) (disclosure of confidential
information concerning circumstances of plaintiff’s separation from employment
insufficient to support ITED claim); Staples v. Bangor Hydro-Electric Co., 561 A.2d 499,
501 (Me. 1989) (abusive conduct by eraployer insufficient to support discharged
employee’s ITED claim).

Finally, the Law Court has held that an ITED claim may not rest on a claim for
defamation: if the defendant is not found liable for the defamation, then there can be no
ITED recovery based on the same conduct; and if the defendant is liable in defamation,
then the plaintiff’s damages for any ITED claim are subsumed by the damages caused by
the defamation. Rippett v. Bemis, 672 A.2d 82, 87-88 (Me. 1996).

For these reasons, the record does not generate a prima facie claim for ITED.

D. Negligent Infliction of Emotional Distress (count 6) ©

A plaintiff may pursue a valid claim for NIED only in cases of bystander liability,
in cases where the relationship between the parties is one that specifically allows such a
claim, and in circumstances where the defendant is liable for a separate tort that does not
allow recovery for emotional distress. Curtis, 2001 ME 158, T 19, 784 A.2d at 26. None
of those circumstances exists here, and as a matter-of law the plaintiff cannot maintain a

claim for NIED.

The entry shall be:
For the foregoing reasons, the motion for summary judgment filed by defendants
Bill Therriault and Mary Ellen Therriault is granted in part and denied in part.

With respect to counts 3 (wrongful interference with contractual relations), 5
(IIED) and 6 (NIED), the motion is granted. Summary judgment is entered for
defendants Bill Therriault and Mary Ellen Therriault on counts 3,5 and 6.

The motion is denied as to count 4 (defamation). \

Dated: June 11, 2002

: : fi.
Justice, Mai e “fiero Court

*° Count 6 of the complaint is entitled, “NEGLIGENCE & NEGLIGENT INELICTION
OF EMOTIONAL DISTRESS.” In his objection to the motion at bar, the plaintiff treats
this cause of action as one for NIED only and not as a generic negligence claim. The
court limits and assesses the count accordingly.

14
Date Filed ___11/17/2000 PENOBSCOT Docket No. Cv-2000-218
~ County

Action CONTRACT

ASSIGNED TO JUSTICE FRANCIS C MARSANO.

RE-ASSIGNED TO JUSTICE ANDREW M. MEAD

REASSIGNED TO JUSTICE JEFFREY L. HJELM
JOHN BAPST MEMORIAL HIGH SCHOOL,
4JOSEPH SEKARA, JOHN MCDEVITT,
*WILLIAM HOGAN, *JAMES HADDIX,

LOUIS JANICKI vs BILL THERRIAULT & MARYELLEN THERRIAULT
Plaintiff’s Attorney 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: Carl F. Rella, Esq.
BY: Jeffrey M. Silverstein, Esq. FOR: Mary Ellen Theriault & Bill Theriault

Paul W. Chaiken, Esq.
P O Box 1401 - 84 Harlow St.
Bangor, Maine 04402-1401

For: John Bapst Memorial High School,

Joseph Sekera, John McDevitt, William
Hogan, and James Haddix

Date of
Entry

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10807035. Public record. Not legal advice.