Churchill v. Univ. of Maine Sys.

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

LINCOLN, ss. DOCKET NO. CV;00-036

GAG- LIN- [2/1S/xI90R

NANCY CHURCHILL,

Plaintiff

Vv. ORDER

UNIVERSITY OF MAINE SYSTEM,

JAMES DORAN, NOEL MARCH,

& RICHARD MEARS, _ DONALD L. GARBRECHT

LAW LIBRARY

Defendants

DEC 1% 2002

Before this court is the University of Maine System et al. (Defendants)’

Revised Motion for Summary Judgment pursuant to M.R.Civ P. 56(c).

FACTS

As the Project Director of the Maine Community Policing Institute (MCPI)

at the University of Maine at Augusta (UMA), Nancy Churchill (Plaintiff)

promoted community policing efforts statewide. Her employment duties also

included overseeing the MCPI program and administering a grant (COPS grant)

from the United States Department of Justice. The Plaintiff had written the COPS

grant, which made federal funds available for the partnering of local police with

local communities with a goal of preventing crime.

In September 1997, Defendant James Doran was appointed as the

_ Executive Assistant to the President of UMA, a position that entailed supervising

the Plaintiff. In 1999, Defendant Richard Mears, an Assistant Professor of

Criminal Justice at UMA, began receiving part of his salary from the COPS grant.

In addition, the Volunteers of America of Northern New England (VOA), a non-

profit consisting of a private group of citizens, had contracted with UMA to

provide administrative services to the MCPI.

In September 1998, the Plaintiff’s job description changed: she no longer

administered the COPS fund and instead began working for the MCPI on

matters such as community education. Defendant Noel March took over the

Plaintiff’s old responsibilities. On September 27, 1998, the Justice Department

notified Defendant Doran that funds from the COPS grant would be suspended

until certain accounting problems were rectified. After UMA addressed the

accounting issues, the U.S. Justice Department released the funds remaining in

the COPS grant in November 1998. On December 31, 1998, the Defendants

terminated all of the Plaintiff’s employment at UMA purportedly because of a

lack of funding.

As a result of the Plaintiff’s termination and statements made about the

Plaintiff by the abovementioned Defendants, the Plaintiff filed a Second

Amended Complaint (Complaint) alleging the following causes of action:

defamation, intentional and negligent infliction of emotional distress, violating

the Whistleblowers’ Protection Act, and violating the Plaintiff’s constitutional

right to due process.

DISCUSSION

The Law Court has stated that “[s]Jummary judgment is no longer an

extreme remedy. It is simply a procedural device for obtaining judicial

resolution of those matters that may be decided without fact-finding.” Curtis v.

Porter, 2001 ME 158, (7, 784 A.2d 18, 21-22. When considering such a motion,

this court will view the evidence in a light most favorable to the Plaintiff, who is

the nonmoving party. Id. at {6. This court also notes that “[i]f material facts are

disputed, the dispute must be resolved through fact-finding, even though the

nonmoving party’s likelihood of success is small.” Id. at {/7.

Count I - Defamation

The Plaintiff alleges in her Second Amended Complaint that the

defendants made defamatory statements to third parties pertaining to the way

she carried out her job, which damaged her reputation in the community. The

Law Court has adopted from the Restatement (Second) of Torts § 558 (1977) the

following elements of common law defamation: 1) a false and defamatory

statement concerning another; 2) an unprivileged publication to a third party; 3)

fault amounting at least to negligence on the part of the publisher; 4) either

actionability of the statement irrespective of special harm or the existence of

special harm caused by the publication. Rippet v. Bemis, 672 A.2d 82 (Me. 1996)

(citing Lester v. Powers, 596 A.2d 65, 69 (Me. 1991)). At the summary judgment

stage, the Plaintiff has to establish a prima facie case consisting of the

abovementioned elements. Rippett v. Bemis, 672 A.2d 82 (Me. 1996). Because

the alleged defamatory words disparaged the Plaintiff’s occupation, her claim

can be characterized as slander per se. See Marston v. Newavom, 629 A.2d 587,

592 (Me. 1993). As a result, the Plaintiff does not have to prove special damages.

Id. at 593.

The Defendants argue that the Plaintiff is a public official and therefore

~ most prove that the defamatory statements were made with actual malice. See

New York Times Co. v. Sullivan, 376 U.S. 254, 283 (1964). In the present case,

however, the public does not have an independent interest in the qualifications

and performance of the Plaintiff, at least not more so than the public’s general

interest in the qualifications and performance of government employees as a

group, because the extent of her authority was limited to overseeing federal

grant funds for promoting community policing efforts. See True v. Lardner, 513

A.2d 257, 263 (Me. 1986) (holding that a public school teacher was not a public

official). Therefore, the Plaintiff does not have to prove actual malice by clear

and convincing evidence.

The Law Court has stated: "Having in mind that proof of the truth of

statements alleged to be slanderous is always a defense, and that the defendant is

therefore entitled to know precisely what statement is attributed to him, [the

Justices of the Law Court] have always required that ‘the words must be proved

strictly as alleged." Picard v. Brennan, 307 A.2d 833, 834-35 (Me. 1973). The

Plaintiff’s claims must be reviewed with this standard in mind.

In paragraph 12(1) of the Complaint, the Plaintiff claims that Defendant

Doran had on numerous occasions in September and October 1998 informed

others that “the Plaintiff had ‘misappropriated’ seventy percent (70%) of the

federal grant.” Because the Plaintiff was bringing suit against a State institution

such as UMA and its agents/employees, the Plaintiff had to comply with the

Maine Tort Claims Act (MTCA). See 14 M.R.S.A. § 8101 et seq. (2002). Pursuant

to the MTCA, the Plaintiff served notice on the Defendant University on August

9, 1999, which covered any claims for the 180-day period prior to the date of

notice, that is, the time period before February 10, 1998. See id. at § 8107(1).

Therefore, the MTCA precludes the Plaintiff from recovering for defamatory

statements made in September and October 1998. See Pepperman v. Barrett, 661

A.2d 1124, 1126 (Me. 1995).

In paragraph 12(2) of the Complaint, the Plaintiff claims that from

February 1, 1999 to May 1, 1999 Defendants Doran, March, and Mears repeatedly

informed members of the Maine Legislative Committee on Criminal Justice “that

Plaintiff committed criminal acts in administering the grant for which she had

responsibility, and that she was to be investigated by the Maine Attorney

.General for these criminal acts.” However, the record does not support this

contention.

In paragraph 12(3) of the Complaint, the Plaintiff claims that from

February 1, 1999 to June 1, 1999 Defendant March and possibly other employees

of the UMA informed Brian MacMaster from the Attorney General’s Office “that

Plaintiff had committed criminal acts related to her position at the University of

Maine at Augusta and that she should be investigated.” However, the record

does not support this contention.

In paragraph 12(4) of the Complaint, the Plaintiff claims that from

February 1, 1999 to October 1, 1999 Michael J. McAlevey, previously a defendant

in this action, had on several occasions informed a Maine State Senator and

Maine law enforcement officials “that Plaintiff had written a check for One

Hundred Thousand Dollars ($100,000) to herself from the Maine Community

Policing Institute grant and that she had subsequently been fired by the

University of Maine for so doing.” The Plaintiff argues that the Defendants

made defamatory remarks about the Plaintiff to McAlevey, who in turn

republished these remarks to others. The Law Court has held that “[t]he

repetition of the slander by those to whom it was uttered, and after that by

others, may be regarded as fairly within the contemplation of the original slander

and a consequence for which the defendant may be held responsible.” Elms v.

Crane, 107 A. 852, 854 (Me. 1919) (quoting Davis v. Starrett, 55 A. 516, 519 (Me.

1903)). Hence, if the Defendants are liable for their republished statements the

question then becomes whether the Defendants are cloaked with discretionary

function immunity pursuant to the MTCA. See 14 M.R.S.A. § 8111(1)(C) (2002).

The evidence shows that the Defendants had made statements referring to the

Plaintiff writing herself a check from federal grant money to McAlevey during a

VOA meeting with officials from the Defendant University. Because this

meeting concerned important fiscal matters involving governmental funds, the

Defendants were engaged in discretionary activities within the scope of their

duties. See Grossman v. Richards, 1998 ME 9, (7, 722 A.2d 371, 374. Therefore,

the Defendants are immune from any liability pertaining the defamation claim in

this paragraph.

In paragraph 12(5) of the Complaint, the Plaintiff claims that during the

first week of April, presumably in 1999, Defendant Mears informed John Rogers,

the Assistant Commissioner of Public Safety for the State of Maine, “that Plaintiff

had been fired from the University of Maine because of financial improprieties.”

However, the record does not support this contention.

In paragraph 12(6) of the Complaint, the Plaintiff claims that during the

third week of April 1999 the President of UMA along with Defendants Doran

and Mears told the Executive Board of the VOA “that Plaintiff’s performance as

an employee had been substandard, that there were questions of criminal actions

related to her management of the grant, including that she had misappropriated

federal funds for her own use, and that she was responsible for a broad range of

financial problems that existed between UMA and VOA.” Firstly, the record

does not support the statement that the President of UMA was present at this

meeting. Secondly, the nature of the meeting, which was held to resolve a billing

dispute, conferred a conditional privilege on the participants. See Rice v. Alley,

2002 ME 43, { 22, 791 A.2d 932, 936. Finally, the Plaintiff has not met the burden

of showing that the Defendants abused the conditional privilege by acting with

malice. See id. [ 23.

In paragraph 12(7) of the Complaint, the Plaintiff claims that from

February 1, 1999 to June 1, 1999 Defendants March and Mears and possibly other

employees of the Defendant University informed law enforcement officials “that

Plaintiff was being investigated for criminal acts related to the grant for which

she had responsibility while an employee at the University of Maine at

Augusta.” The record shows that Defendant Mears had told Mark Westrum, the

Sheriff for Sagadahoc County, in a personal conversation that the Plaintiff had

committed criminal acts in the context of misappropriating federal grant funds.

Defendant March also had made similar comments to Westrum. A common

interest conditional privilege does not apply to the Defendants’ defamatory

statements, which were made in the context of attacking someone’s character as

opposed to advancing an official purpose that would benefit society. See Rice v.

Alley, 2002 ME 43 J 22, 791 A.2d 932, 936. Furthermore, even though the U.S.

Department of Justice is conducting an investigation that involves the Plaintiff,

there is no evidence in the record that the Plaintiff has actually committed a

crime pertaining to the misappropriation of federal grant funds. When this court

views the evidence in this paragraph in a light most favorable to the Plaintiff, it

appears that material facts are in dispute that can only be resolved through

further fact-finding. Finally, the Defendants as employees of UMA are not

entitled to discretionary function immunity under the MTCA because their

informal conversations cannot be reasonably viewed as falling within the scope

of their employment duties. See 14 M.R.S.A. § 8111(1)(C) (2002).

In paragraph 12(8) of the Complaint, the Plaintiff claims that in June 1999

Defendant Mears and possibly other UMA employees told the MCPI Board of

Directors at a meeting “that Plaintiff had misappropriated funds from the federal

grant for which Plaintiff was responsible.” However, the record shows that the

two members of the MCPI Board of Directors who were actually present at the

meeting did not hear Defendant Mears state that the Plaintiff had

misappropriated the abovementioned funds.

Count II - Intentional and Negligent Infliction of Emotional Distress.

The Plaintiff alleges in her Complaint that the Defendants have

intentionally inflicted emotional distress on her. The Law Court has ruled that at

the summary judgment stage the Plaintiff has to establish a prima facie case of

intentional infliction of emotional distress with the following elements: “(1) the

defendant intentionally or recklessly inflicted severe emotional distress or was

certain or substantially certain that such distress would result from her conduct;

(2) the conduct was so “extreme and outrageous as to exceed all possible bounds

of decency and must be regarded as atrocious, utterly intolerable ina civilized

community’; (3) the actions of the defendant caused the plaintiff’s emotional

distress; and (4) the emotional distress suffered by the plaintiff was so severe that

no reasonable [person] could be expected to endure it.” Curtis v. Porter, 2001

ME 158, 710, 784 A.2d 18, 22-23. The Defendants argue that the Plaintiff cannot

establish the first two elements above.

For purposes of this motion, however, there is evidence that Defendants

March and Mears intentionally made or recklessly made defamatory statements

concerning the Plaintiff that could ruin her livelihood and reputation, rising to an

extreme and outrageous level. In the alternative, the Plaintiff’s has also claimed

that the Defendants have negligently inflicted emotional distress on her.

However, the Law Court has held that “when the separate tort at issue [such as

slander per se or intentional infliction of emotional distress] allows a plaintiff to

recover for emotional suffering, the claim for negligent infliction of emotional

distress is usually subsumed in any award entered on the separate tort.” Curtis

v. Porter, 2001 ME 158, 919, 784 A.2d 18, 26 (citing Rippett v. Bemis, 672 A.2d 82,

87-88 (Me. 1996)). Finally, for reasons stated above pertaining to paragraph 12(7)

of the Complaint, the Defendants do not have personal immunity pursuant to the

MTCA.

Count III - Whistleblowing.

The Plaintiff alleges in her Complaint that the Defendants violated the

Maine Whistleblowers’ Protection Act (WPA), which protects employees who are

discharged by their employers for reporting in good faith to their employer or a

public body violations of the law. See 26 M.R.S.A. § 833(1)(A) (2002). The Law

Court has held that the Plaintiff must establish “that she engaged in activity

protected by the WPA, (2) that she experienced an adverse employment action,

and (3) that a causal connection existed between the protected activity and the

adverse employment action.” DiCentes v. Michaud, 1998 ME 227, § 14,719 A.2d

509,514. In the present case, the Plaintiff has shown that she reported what she

believed was illegal conduct to Defendants Doran and March. The Defendants

have in turn articulated a non-retaliatory reason for Plaintiff’s termination, that

is, that there were no longer federal grant funds to support her position.

However, the Plaintiff has not established the critical causal connection between

her reporting activities and her subsequent termination, nor has she established

that the defendants were using a pretext to terminate her employment.

Therefore, the Plaintiff’s claim must fail.

Count IV: Due Process

The Plaintiff argues that the Defendants violated her right to due process

under the Fifth Amendment of the U.S. Constitution as it applies to the States

through the Fourteenth Amendment as well as under 42 U.S.C. § 1983.’ More

specifically, the Plaintiff alleges that prior to her termination the Defendants, in

their capacity as state officials, were obligated to notify her of the charges

pertaining to her termination and then provide her with an opportunity to

respond to those charges. In other words, the Plaintiff claims that because she

was not given a chance to tell her side of the story before she was terminated, the

Defendants had effectively deprived her of due process.

However, the Loudermill case, upon which the Plaintiff relies, notes that

the U.S. Constitution does not create a property interest in a job, but that state

1 Title 42 U.S.C. § 1983, which authorizes a civil action for deprivation of constitutional rights,

provides in part:

Every Person who, under color of any statute, ordinance, regulation, custom, or usage, of

any State . . . subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party injured in

an action at law, suit in equity, or other proper proceeding for redress ....

10

law might create such an interest. See Cleveland Bd. of Educ. v. Loudermill, 470

US. 532, 538 (1985). In that case an Ohio statute clearly gave the civil service

employee a property right in continued employment provided he did a good job.

See id. at 538-539. In the present case the evidence shows that the Plaintiff’s job

was not created pursuant to a state statute or rule and instead was contingent

upon the federal government continuing to fund the underlying program

supporting the Plaintiff’s job. As a result, the Plaintiff’s due process claim must

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WHEREFORE this court shall GRANT the Defendants partial summary

judgment on Claim I relating to all but paragraph 12(7) of the Plaintiff’s Second

Amended Complaint, GRANT the Defendants summary judgment on Counts II

(Whistleblower Act) and IV (Due Process) of the Plaintiff’s Second Amended

Complaint, and DENY the Defendants summary judgment on Count II of the

Lor

G. Agrthur Brennan

Justice, Superior Court

Plaintiff's Second Amended Complaint.

For Piadnetft

Dated: December // , 2002

For Plaintiff:

Howard Reben, Esquire

For Defendants (U of ME, March, Mears & Doran):

Patricia A. Peard, Esquire and

‘Joan M. Fortin, Esquire :

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