holding that because the CBA did not cover certain claims, the employee did not have to exhaust grievance procedure before resorting to the courts to address those claims
How later courts described this case
- holding that because the CBA did not cover certain claims, the employee did not have to exhaust grievance procedure before resorting to the courts to address those claims
- stating that an employer who had argued before the Workers’ Compensation Commission that a worker was not an employee should not allowed to argue ina subsequent civil suit that the worker was an employee
Written by the judges who cited it.
The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
CUMBERLAND, ss. DOCKET NO. CV 01,667
Ke AS ~CUSA~ > “7
om “s ’ ;
ANN MARIE ROGERS,
Plaintiff
JAMES J. MACADAM, HOLLIE S. POPE,
& MACADAM MCCANN P.A,,
Defendants
Before the court is Defendant James J. MacAdam’s, Defendant MacAdam .
McCann, P.A.’s and Defendant: Hollie S. Pope’s motion for Partial Summary
Judgment pursuant to M.R.Civ.P. 56(c).
FACTS
This section will illustrate some of the more relevant facts leaving out
others, the court acknowledging that many material facts are controverted or
outweighed by the danger of unfair prejudice. ° Plaintiff Ann Marie Rogers
worked 18 years for a telephone company that later became Verizon New
England, Inc. (Verizon). Her job responsibilities included repetitive typing,
which over a period of years caused her to suffer pain in her extremities,
particularly her arms and hands. The Plaintiff’s physician, Dr. John Chance, had
taken her out of work on several occasions in 1999 because typing had become
too painful. Various work restrictions failed to ease the Plaintiff's physical
symptoms. On September 10, 1999, owing to continued physical impairments
Dr. Chance took the Plaintiff out of work, which turned out to be the last time
she worked at Verizon. As a result, the Plaintiff decided to file a Workers
Compensation claim.
In August 1999, the Plaintiff retained the legal services of Defendant James
MacAdam, an attorney licensed to practice in the State of Maine, who was a
shareholder in the law firm McTeague, Higbee, MacAdam, Case, Cohen and
Whitney, P.A. Defendant Hollie S, Pope worked as a paralegal for Defendant
MacAdam. In April 2000, Defendant resigned from his law firm and formed
another law firm, Defendant MacAdam McCann P.A. Defendant Pope
continued to work as a paralegal for Defendant MacAdam. The Plaintiff also
continued to be represented by Defendant MacAdam.
On two occasions, Defendant MacAdam failed to file a timely Case
Scheduling Memorandum (CSM) with the Maine Workers’ Compensation Board,
which dismissed the petitions without prejudice. Defendant Pope had misled
Defendant MacAdam about the submission and the status of these CSM. After
the Plaintiff learned from the Maine Workers’ Compensation Board that one of
her petitions had been dismissed she contacted Defendant MacAdam McCann
P.A. and spoke with Defendant Pope, who told her that her case had not been
dismissed. Moreover, on September 22, 2000, Defendant Pope falsely informed
the Plaintiff that her Workers’ Compensation hearing was cancelled because
Verizon had sent a fax, agreeing to pay her benefits.
On October 20, 2000, the Plaintiff received a letter from Verizon, dated —
three days earlier, which stated that because of her 52-week absence she needed
to report back to work on October 23, 2000 or else she would be terminated the
next day. That same day the Plaintiff called Defendant MacAdam’s office and
spoke with Defendant Pope. The statements of material facts are in dispute as to
whether Defendant Pope instructed the Plaintiff to avoid reporting to work. The
facts do show that on October 23 Defendant Pope informed the Plaintiff that she
had received a consent decree from Verizon purporting to pay the Plaintiff’s
benefits. Defendant Pope had lied to the Plaintiff, subsequently forging a
consent decree. The facts also show that the Plaintiff did not comply with
Verizon’s request to return to work. On October 24, 2000, Verizon terminated
the Plaintiff because she failed to return to work. Defendant Pope delivered to
the Plaintiff the forged consent decree. On November 1, 2000, Defendant Pope
met with the Plaintiff, presenting her with a check drawn on a Defendant
MacAdam McCann P.A. bank account for $20,759.39 for her share of
compensation benefits ostensibly from Verizon: Defendant Pope had: forged this
check. After the fraud came to light, the Plaintiff discharged Defendant
MacAdam on September 12, 2001.
On December 6, 2001, the Plaintiff filed suit against the various
Defendants based on the following claims: Count I intentional infliction of
emotional distress; Count II intentional misrepresentation / fraud; Count III
breach of fiduciary duty; Count IV intentional interference with prospective
economic advantage; Count V civil conspiracy; Count VI punitive damages;
Count VII negligent misrepresentation; Count VIII negligence; Count IX
negligent infliction of emotional distress. Consequentially, Defendant MacAdam
and Defendant MacAdam McCann filed an Answer along with the following
counterclaims: Count I unjust enrichment; Count II conversion.
DISCUSSION
The Law Court recently stated: “A summary judgment is warranted when
the statement of material facts and the pleadings, depositions, answers to
interrogatories, admissions on file, and affidavits, if any, cited in the statement of
material facts establish that there is no genuine issue of material fact and that a
party is entitled to a judgment as a matter of law.” Darling’s v. Ford Motor Co.,
2003 ME 21, 94, —__A.2d___ (citing M.R.Civ.P. 56(c), (h)). A genuine issue is
defined as one where a factual dispute is sufficiently supported by evidence
requiring the court to choose at trial between the parties’ conflicting versions of
truth. Am. Protection Ins. Co. v. Acadia Ins. Co., 2003 ME 6, 710, A2d
In addition, a material fact is defined as one that may affect this court's final
ruling. Id. When ruling upon the present motion this court will view the
evidence in the light most favorable to the Plaintiff, the non-moving party. See
id.
The Causation of the Plaintiff’s Loss of Employment.
The Defendants argue that their alleged wrongdoing did not cause the
Plaintiff to lose her job with its associated income and benefits because the
Plaintiff's physical impairments had made it impossible for her to continue
working for Verizon. Under this theory, the actions of the Defendants did not
cause the Plaintiff to lose her job. According to the Defendants, because the
Plaintiff stated in a Workers Compensation hearing that she could no longer
physically work for Verizon, she was collaterally estopped from relitigating the
cause of her termination. Cline v. Maine Coast Nordic, 1999 ME 72, 19, 728 A.2d
686, 688 (recognizing that administrative judgments] can collaterally estop the
relitigation of factual determinations); Crawford v. Allied Container Corp., 561
A.2d 1027, 1029 (Me. 1989) (stating that an employer who had argued before the
Workers’ Compensation Commission that a worker was not an employee should
not allowed to argue ina subsequent civil suit that the worker was an employee).
Moreover, the Defendants contend that the Plaintiff cannot generate an
issue of material fact by changing her own prior sworn testimony. Zip Lube, Inc.
v. Coastal Savings Bank, 1998 ME 81, 110, 709 A.2d 733, 735. (adopting “the rule
that a party will not be permitted to create an issue of material fact in order to
defeat a summary judgment motion simply by submitting an affidavit disputing
his own prior sworn testimony.”). The Defendants point out that the Plaintiff
admitted in her application for Social Security benefits that she could not have
continued to work at Verizon: Essentially, the Defendants argue that it would be
unfair to disregard the Plaintiff's testimony and sworn statement that she could
no longer perform her job at Verizon and then in this proceeding allow her to
claim that she could have continued to perform her job but for the Defendants’
actions.
On first glance, the Defendants’ arguments appear to have merit. A
review of the statements of material facts does indicate that the Plaintiff could no
longer type without accommodations from Verizon. Upon closer inspection,
however, it becomes apparent that the Defendants fail to address the immediate
cause of the Plaintiff's termination, namely that she failed to report to work on
October 24, 2000 as called for in the October 17, 2000 letter from Verizon. The
Plaintiff claims during the critical time period between receiving the letter from
Verizon and October 24, 2000, she would have reported |back to work even if it
was only to find out about the terms of her consent decree. The statements of
material facts show that Defendant Pope had told the Plaintiff that Verizon had
signed off on a consent decree in which the Plaintiff would be paid without
having to return to work. Arguably, the Plaintiff relied upon Defendant Pope’s
Tepresentation and did not return to work on October 24, which resulted in her
termination. Whether Verizon would have somehow been able to accommodate
her disabilities if she had shown up for work on October 24, 2000 is a disputed
issue within the purview of the jury.
Federal Preemption of the Plaintiff's State Law Claim.
The Defendants argue that Section 301 of the Labor Management
Relations Act of 1947 preempts the Plaintiff's state law claims. See Lingle v.
~ Norge Div. of- Magic Chef; Inc: 486 U.S. 399, 405-406 (1988). The Defendants
note that the Plaintiff's employment was covered with a collective bargaining
agreement (CBA) between her labor union and Verizon, providing specific
grievance and arbitration procedures regarding her inability to physically
perform her job. Hence, according to the Defendants, the Plaintiff should have
filed a grievance with her union when she was terminated, but failed to do so.
However, federal jurisdiction applies only in “[s]uits for violation of contracts
between an employer and a labor organization representing employees.” 29
U.S.C. § 185(a) (2000). Such a relationship does not exist in the present case. In
addition, the Plaintiff's state law claims, based in part on her termination for not
showing up to work, are not covered by the CBA. Therefore the Plaintiff did not
have to exhaust any grievance procedures through the Disability Pay and
Arbitration of Medical Determinations section of the “y Procise v. Elec. Mut.
Liab. Ins. Co., 494 A.2d 1375, 1380-81 (Me. 1985) (holding that because the CBA
did not cover certain claims, the employee did not have to exhaust grievance
procedure before resorting to the courts to address those claims).
Count IV Intentional Interference with Prospective Economic Advantage.
To prevail on her tortuous interference claim, the Plaintiff needs to
establish that a prospective economic advantage existed, that the Defendants
used fraud or intimidation to interfere with that advantage, and that the
interference proximately caused the Plaintiff's damages. Gordan v. Cummings,
2000 ME 68, 914, 756 A.2d 942, 946. The Defendants argue that the Plaintiff had
no prospective economic advantage because Verizon did not have suitable work
for her. In other words, the Plaintiff’s claim must fail because she cannot
establish the element of causation. As noted above, the statements of material
facts show that there is enough evidence to show causation. The Defendants go
on to argue that one of the elements of this claim require that the Defendants
committed a fraud upon a third party, who in turn would have acted upon this
fraud to the detriment of the Plaintiff. Petit v. Key Bank of Maine, 688 A.2d 427,
430 (Me. 1996). Nevertheless, the statements of material facts show that
Defendant Pope had spoken with Verizon’s attorney on October 23, 2001 without
mentioning the purported consent decree or any related negotiations, ‘When the
court views this evidence in a light most favorable to the Plaintiff such
concealment could have caused Verizon to act detrimentally towards the
Plaintiff.
Count V Civil Conspiracy.
As the Complaint makes clear, the Plaintiff has not plead civil conspiracy
as an independent tort, rather as a tort dependent on the first four counts in the
Complaint. See Potter, Prescott, Jamieson & Nelson, P.A. v. Campbell, 1998 ME
70, 18, 708 A.2d 283, 286 (citing Cohen v. Bowdoin, 288 A.2d 106, 110 (Me. 1972)).
Even though the foundation of the Defendants’ civil liability may arise in one of
the Plaintiff's other claims, there is no reason to dismiss this claim at the
summary judgment window. Cohen v. Bowdoin, 288 A.2d 106, 109-110 (Me.
1972).
Count VI Punitive Damages.
To recover punitive damages, the burden is on the Plaintiff to prove by
clear and convincing evidence that the Defendants acted with express or implied
malice. Newbury v. Virgin, 2002 ME 119, (21, 802 A.2d 413, 418. In addition
punitive damages cannot be awarded in cases where the defendants recklessly
disregarded the circumstances of the Plaintiff. Id. Defendant Pope argues that
her actions towards the Plaintiff were not motivated by ill will or bad animus
and that she ultimately intended to benefit the Plaintiff. The Law Court has
stated that “[mlalice also exists ‘where deliberate conduct by the defendant,
although motivated by something other than ill will toward any particular party,
is so outrageous that malice toward a person injured as a result of that conduct
can be implied.’” Id. (quoting Tuttle v. Raymond, 494 A.2d 1353, 1361 (Me.
1985)).
Perhaps Defendant Pope’s initial actions were mistakes, serious ones, but
a review of the statement of material facts shows that her schematic concealment
8
of her increasingly egregious acts can amply be Uescribed as outrageous,
implying malice towards the Plaintiff. Similarly, Defendants MacAdam and
MacAdam McCann P.A. initially may have been looking out for the best interests
of the Plaintiff. However, when the court considers all of the facts generated by
the Plaintiff in the most favorable light, including the facts that Defendant
MacAdam purportedly kept from the Plaintiff as well as the way he responded
to Defendant Pope’s mistakes, his behavior as a whole could be considered
outrageous to the point of implying malice towards the Plaintiff. Furthermore,
the qualifications and denials in the Defendants’ Reply Statement of Material
Facts concerning the Plaintiff's Statement of Additional Material Facts do not
dispel the unprofessional actions attributed to the Defendants.
Counterclaim, Count I Unjust Enrichment:
Defendant MacAdam McCann P.A. has filed a counterclaim against the
Plaintiff for unjust enrichment, seeking to recover the $20,759.39 in proceeds
from the check drawn by Defendant Pope on the firm’s account. To succeed on
this counterclaim, which is an equitable remedy, Defendant MacAdam McCann -
P.A. must show that (1) Defendant MacAdam McCann P.A. conferred a benefit
on the Plaintiff, (2) the Plaintiff appreciated or knew about the benefit, and (3) it
would be inequitable for the Plaintiff to retain the benefit without compensating
Defendant MacAdam McCann P.A. See Maine Farmers Exch., Inc. v. Farm
Credit of Maine, A.C.A., 2002 ME 18, {12 n.6, 789 A.2d 85, 88 n.6. The statement
of material facts show that Defendant MacAdam McCann P.A. has satisfied the
first two elements of the claim but has failed to establish the third element. This
court needs to consider that “[t]he law permits recovery for the value of a benefit
retained when there is no contractual relationship if fairness and justice compel
performance of a legal and moral duty to pay.” Id In the present case, the
allegedly unjust circumstances thrust upon the Plaintiff makes it impossible for
this court to justify the use of its equitable powers in favor of Defendant
MacAdam McCann P.A.
Counterclaim, Count II Conversion.
Comparable to the above claim for unjust enrichment, Defendant
MacAdam McCann P.A. has filed a counterclaim against the Plaintiff for
conversion, seeking to recover the $20,759.39 in proceeds from the check drawn
by Defendant Pope on the firm’s account. To succeed on this counterclaim
Defendant MacAdam McCann P.A. must show (1) that it has a property interest
in the $20,759.39 proceeds; (2) that it had the right to possess these proceeds at
the time of the conversion; and (3) that it demanded the return of these proceeds
from the Plaintiff who failed to comply. Withers v. Hackett, 1998 ME 164, 77, 714
A.2d 798, 800. The Law Court, however, has recognized “[t]hat equitable
estoppel can defeat recovery for alleged conversion in appropriate
circumstances.” Howard v. Brown, 161 Me. 52, 57, 206 A.2d 854, 856 (1965)
(citing Rogers v. Portland and Brunswick Street Railway, 100 Me. 86, 90, 60 A.
713, 714 (1905)). In the present case, the Plaintiff /Counterclaim Defendant has
plead the affirmative defense of estoppel. The statement of material facts show
that fraud has been committed upon the Plaintiff/Counterclaim Defendant and
therefore granting summary judgment on this counterclaim would not further
justice.
10
WHERFORE, owing to the discussion above interpreting the parties’
statements of material facts, this court shall DENY all of the Defendants’ Motions
for Summary Judgment.
Dated: April 2, 2003 Leal
“Roland A. Cole
Justice, Superior Court
11
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