The opinion
STATE OF MAINE
CUMBERLAND, ss.
SUPERIOR COURT
CIVIL ACTION
J;
DOCKET NO: CV-06-052
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PAMELA ST. JOHN
Plaintiff
ORDER ON DEFENDANTS'
MOTION FOR SUMMARY
JUDGMENT
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JEFFREY JORDAN, et al. DONALD L. GARRRECI-I'
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Defendants L. ,.. ;' .;: .' s A~JV!IRRAR&'
T h s matter comes before the Court on Defendants' motion for summary
judgment on all counts of the complaint pursuant to M.R. Civ. P. 56(c).
BACKGROUND
Plaintiff Pamela St. John ("Plaintiff") has worked for the City of South
Portland ("the City") since 1981. She has served as a personnel assistant since
1989. She claims that, at various times during her employment, she worked over
40 hours per week without receiving overtime pay. In March 2003, Plaintiff and
other employees notified the City Manager, Jeffrey Jordan ("Jordanff),that they
would be filing a complaint with Lauren Carrier ("Carrier"), who was then the
Assistant City Manager. In November 2003, Plaintiff sought and received 240
hours of "compensatory time," the maximum allowable before the overtime rate
applies. Plaintiff states that she agreed to this amount because Jordan told her it
was the maximum amount she could receive, but she argues that this was not all
of the time for which she was owed compensation.'
Eventually, the City performed an internal investigation of the employees1
complaint, during which Carrier resigned. Before her resignation, Carrier had
created a negative internal memorandum about Plaintiff's job performance,
which Plaintiff claims was to be destroyed so that it would not become part of
her employment r e ~ o r d .After
~ Carrier left, Plaintiff worked directly for Jordan
until a new human resources director was hired in September 2004, and that
director became Plaintiff's direct supervisor. In 2005, the new director met with
Plaintiff to highlight some areas in which Plaintiff's job performance was
deficient, and she summarized those areas in a memorandum. One item in the
memo was a reference to the earlier memo that Plaintiff assumed had been
destroyed. Under the City's Personnel Manual, Plaintiff disputed the memo, and
after an investigation was conducted, the City Council made findings about
Plaintiff's allegations. The Council found that most of the allegations of
substandard performance were unfoundedI3but did note that Plaintiff did not
keep regular business hours or respect overtime issues.
Plaintiff filed suit against Jordan and the City in January 2006. The second
amended complaint alleges defamation, overtime violations, violations of the
Fair Labor Standards Act ("FLSA"), prompt payment, quantum meruit, unjust
' In her Additional Statement of Material Facts, Plaintiff contends that she worked the following
unpaid hours: 363.75 in 1999,366.20 in 2000,383.25 in 2001,564 in 2002,431.85 in 2003, and 337.90
in 2004.
Although performance reviews are to be conducted annually, Plaintiff claims that she had not
had a review since roughly 1991, which Defendants dispute.
Defendants dispute this account of the findings set forth by Plaintiff in her Additional
Statement of Material Facts qI 20, but did not support their denial with a record citation. This fact
is deemed admitted.
enrichment, and breach of contract. In their answer, Defendants assert the truth
of the statements, failure to comply with the Maine Tort Claims Act ("MTCA"),
qualified immunity, governmental immunity, estoppel and waiver. Defendants
now move for summary judgment on all counts of Plantiff's complaint. Plaintiff
admits that summary judgment should be granted for the City on the defamation
claim, as she failed to comply with the notice provisions of the MTCA. But, she
argues that she was not required to serve similar notice of her claim upon Jordan
under the MTCA. She also concedes that summary judgment should be entered
for both Defendants on the overtime violations claim.4 She contends, however,
that genuine issues of material fact on her remaining claims against both Jordan
and the City preclude summary judgment.
DISCUSSION
1. Summarv Tudgment Standard.
Summary judgment is proper where there exist no genuine issues of
material fact such that the moving party is entitled to judgment as a matter of
law. M.R. Civ. P. 56(c); see also Levine v. R.B.K. Caly Corp., 2001 ME 77, 2 4, 770
A.2d 653,655. A genuine issue is raised "when sufficient evidence requires a
fact-finder to choose between competing versions of the truth at trial." Parrish v.
Wright, 2003 ME 90, ¶ 8, 828 A.2d 778, 781. A material fact is a fact that has "the
potential to affect the outcome of the suit." Burdzel v. Sobus, 2000 ME 84, ¶ 6, 750
A.2d 573,575. "If material facts are disputed, the dispute must be resolved
through fact-finding." Curtis v. Porter, 2001 ME 158, 9 7, 784 A.2d 18, 22. At this
As the parties agree that summary judgment should be granted as to the City on Count I and as
to both Defendants on Count 11, these counts will not be discussed.
stage, the facts are reviewed "in the light most favorable to the nonmoving
party." Liglztfaot v. Sclz. Adrnin. Dist. No. 35, 2003 ME 24, 91: 6, 816 A.2d 63, 65.
2. Defamation Claim Against Tordan.
Before addressing the merits of Plaintiff's defamation per se claim, this
Court must address whether she complied with the notice provisions of the
WITCA as to Defendant Jordan. The MTCA requires that written notice of tort
claims against a governmental entity must be served on the entity within 180
days of the date that the cause of action accrues. 14 M.R.S. § 8107(1)(2006). T h s
notice is also required where the claim is against an employee of the
governmental entity. Id. 5 8107(3)(A);see also Pepperman v. Barrett, 661 A.2d 1124,
1126 (Me. 1995).
Plaintiff has conceded that no MTCA notice was served on the City, and
summary judgment is therefore granted for the City on this count. But, Plaintiff
contends that she was not required to serve notice of her tort claim against
Jordan. The statute and case law, however, clearly require notice of a claim
against a governmental entity or employee to be served in the manner prescribed
in § 8107. As Plaintiff has conceded that she did not provide notice of her claim
within the required time frame, she cannot pursue this tort claim against Jordan.
Summary judgment is entered for Jordan on the defamation claim, and on all
remaining claims because they are statutory, employer-based causes of action,
and Jordan is not Plaintiff's employer.
3. Fair Labor Standards Act Claim.
The FLSA provides that employers must pay employees who work over
forty hours per week one and one-half times their normal rate of pay for any
excess hours worked. 29 U.S.C.S. 5 207(a)(l)(2006). When a defendant seeks
summary judgment, a "plaintiff must establish a prima facie case for each
element of her cause of action." Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, ¶
9, 711 A.2d 842, 845. Plaintiff, therefore, must establish that she indeed worked
overtime during the eligible ~ e r i o d Because
.~ her signed time sheets, whch are a
part of the summary judgment record, indicate that she claimed to have worked
37.5 hours or less per week since February 2004, the City argues that Plaintiff
cannot demonstrate an entitlement to overtime pay under the FLSA. It points to
a Ninth Circuit case in which an employee who had already received overtime
pay later sought payment for additional overtime that he did not list on his time
records. Forrester v. Xoth's I.G.A. Foodliner, Inc., 646 F.2d 413,414 (9th Cir. 1981).
The Court held that when an employee's own actions "prevent an employer from
acquiring knowledge . . . of alleged uncompensated overtime hours," the
employer has not violated the FLSA. Id. at 414-415.
Plaintiff counters that time sheets may be evidence of hours worked, but
they do not conclusively determine how many hours were actually worked. She
argues that her daily planner, calendar, and personal log create issues of fact as
to actual hours worked. The calendar, log, and planner, however, if offered to
prove how many hours Plaintiff actually worked, would be inadmissible hearsay
under M.R. Evid. 802.6 Plaintiff has provided no other non-hearsay evidence to
counter the timesheets she signed, whch do not reveal overtime hours worked in
the two-year period for which she was not compensated. She contends that she
Because the FLSA has a two-year statute of limitations, Plaintiff would have to have worked
overtime hours for which she was not paid during the two-year period preceding her complaint,
or between January 25,2004 and January 25,2006, to recover under this statute. All other claims
are subject to the usual six-year statute of limitations; therefore, on those claims, the Court will
consider allegations going back to January 25,2000.
6
The timesheets are admissible as business records under M.R. Evid. 803(6), but the planner,
calendar, and personal log would not be admissible under any exception or exemption if they
were indeed being offered to show that Plaintiff worked overtime on a given day.
would testify that her supervisors knew that she was workng overtime, but she
is not free to testify about what others knew or believed. Additionally, Plaintiff
had a responsibility to inform the City through her timesheets if she was
worlung overti me, and she elected not to do so. Without other admissible
evidence to support her claim that she worked overtime, summary judgment is
granted on this count.
4. Prompt Pav Claim.
Maine's "prompt pay" statute prescribes acceptable intervals at whch
employees are to receive regular paychecks. 26 M.R.S. 5 621-A (2006).
Specifically, the statute says that employers "must pay in full all wages earned"
during that time period. Id. The City argues that this statute is inapplicable
because Plaintiff does not challenge the regularity of her pay, but contends that
she did not receive overtime compensation to which she was entitled. It also
notes that overtime payments are governed by different statutory provisions.
Plaintiff points to the text of the statute, which reads "all wages," theoretically
including overtime.
Yet, this Court need not reach the issue of whether the statute includes
overtime pay. Even assuming that it does, Plaintiff has not demonstrated that
she actually worked overtime hours for whch she was not paid. Plaintiff's
signed timesheets indicate the number of hours that she worked in a given pay
period. She argues that the comp time payment she received in 2003 creates an
inference that she was entitled to extra pay for overtime worked in other periods
as well, but this is insufficient to generate a genuine issue of material fact at the
summary judgment stage. Because there is no genuine issue of material fact
regarding whether Plaintiff actually worked overtime, summary judgment is
granted on this count.
5. Quantum Meruit and Uniust Enrichment Claims.
Differences exist between quantum meruit and unjust enrichment claim^.^
Paffhausen v. Balano, 1998 ME 47, ¶ 6,708 A.2d 269,271. Quantum meruit
"involves recovery for services or materials provided under an implied
contract." Id. To prevail on a quantum meruit claim, Plaintiff must show that
she provided services to Defendants with their "knowledge and consent," and
the circumstances were such that she reasonably could expect to be compensated
for them. Id. 91 8, 708 A.2d at 271. Unjust enrichment is an equitable theory that
involves "recovery for the value of the benefit obtained when there is no
contractual relationship, but when, on the grounds of fairness and justice,"
payment should be required. Id.
Even viewing the facts in the light most favorable to Plaintiff, she cannot
recover on either theory. Her admissions to Defendants' Statement of Material
Facts reveal that she signed timesheets that represented to the City how many
hours she worked per week, and they do not reveal any overtime hours worked.
The City argues that it was only aware of hours that Plaintiff herself listed on the
timesheets; therefore, she cannot be said to have provided any services for whch
she could reasonably expect to be compensated with the "knowledge and
consent" of the City. Also, she has not demonstrated as a matter of law that
fairness and justice require compensating her for hours allegedly worked, when
Defendants contend that because Plaintiff has an employment contract with the City, she cannot
recover on an implied contract or equitable repayment theory. As discussed below, Plaintiff
cannot recover on her contract claim, and she has conceded that the breach and quantum meruit
claims are arguments in the alternative.
she did not claim those hours on her own timesheets. Accordingly, summary
judgment is granted on both the quantum meruit and unjust enrichment claims.
6. Breach of Contract Claim.
The parties in this case agree that Plaintiff had an employment agreement
in the sense that she was bound and benefited by the compensation policies in
the City's Personnel Manual. But, they disagree on whether Defendants
breached that agreement by not providing overtime pay. As noted above,
Plaintiff has not raised a genuine issue of material fact that would support her
overtime claims. The City was to pay Plaintiff according to its employment
agreement with her, and it compensated her for the hours she claimed to have
worked on her signed time records. Without admissible proof of hours worked
beyond what Plaintiff listed on those sheets, there is no genuine issue of fact for a
jury to address as to breach of the City's obligations. Summary judgment is
granted on the breach claim.
The entry is:
Defendants' motion for summary judgment is GRANTED on all
counts of the complaint. Judgment is entered for Defendants.
The clerk shall incorporate this Order into the d
pursuant to M.R. Civ. P. 79(a).
DATE: Z'2 I LO07
F COURTS
jnd County
)ox 287
ne 041 12-0287
-f i
DAVID KREISLER ESQ
PO BOX 4726
PORTLAND ME 04112
COURTS
.nd County
ox 287
l e 041 12-0287
MELISSA HEWEY ESQ
PO BOX 9781
PORTLAND ME 04112