Brady v. Joyce

IN l ERED OCT 0 8 Zot4

STATE OF MAINE SUPERIOR COURT

ANDROSCOGGIN, ss CIVIL ACTION

RECEIVED & FILEcPocket No. CV-13-056

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GERARD BRADY,

ANDROSCOGGIN

Plaintiff SUPERIOR COURT ,

ORDER ON DEFENDANTS'

v. MOTION FOR SUMMARY

JUDGMENT

KEVIN JOYCE, NALDO

GAGNON, and COUNTY

OF CUMBERLAND,

Defendants

Before the court is defendants' motion for summary judgment on all

counts of plaintiff's complaints. For the following reasons, the motion is granted.

PROCEDURAL HISTORY

In September 2012, plaintiff filed a complaint with the Maine Human

Rights Commission and subsequently was issued a "right to sue" letter. Plaintiff

filed his complaint against defendants Joyce and Gagnon on April 12, 2013 in

Cumberland County and was assigned docket number CV-13-064. The complaint

includes count I: violation of Maine's Civil Rights Act; count II: defamation;

count III: interference with advantageous relationship; and count IV: punitive

damages.

Plaintiff filed a separate complaint against. defendant County of

Cumberland on April16, 2013 in Androscoggin County and was assigned docket

number CV-13-056. The complaint includes count I: violation of Maine

Whistleblower Protection Act; count II: violation of Maine Civil Rights Act; count

III: defamation; and count IV: interference with advantageous relationship.

Plaintiff filed a motion to transfer the lawsuit against defendants Joyce

and Gagnon to Androscoggin County and to consolidate that lawsuit with the

lawsuit against County of Cumberland. The court granted plaintiff's motion to

transfer venue on June 12, 2013 and granted plaintiff's motion to consolidate the

two lawsuits on June 24, 2013. Defendants filed the motion for summary

judgment on May 2, 2014.

BACKGROUND

Plaintiff Gerard Brady has worked for the Cumberland County Sheriff's

Department for more than 30 years. (Supp. S.M.F. <[ 1.) From 1994 until 2012,

plaintiff worked as a detective in the Criminal Investigation Division (CID).

(Supp. S.M.F. <[ 4.) Plaintiff is trained to administer polygraph examinations.

(Supp. S.M.F. <[<[ 13-14.) In addition to performing polygraphs as part of his

position at the Sheriff's Department, plaintiff runs a private company called

Forensic Polygraph Services, which also offers polygraph examinations. (Supp.

S.M.F. <[<[ 15, 21.)

Defendant Kevin Joyce was elected Sheriff in November 2010. (Supp.

S.M.F. <[52.) Defendant Naldo Gagnon serves as Chief Deputy. (Supp. S.M.F. <[

7.) Plaintiff alleges that defendants Joyce and Gagnon directed an aggressive

investigation against plaintiff to punish him for (1) reporting an incident of

prisoner abuse and (2) publicly declaring that he would not support defendant

Joyce in the 2010 election if another individual, Michael Edes, ran against

defendant Joyce. Defendants argue plaintiff was disciplined for improperly

running his private polygraph business during work hours.

2

Alleged Prisoner Assault

In May 2010, plaintiff saw a video of an incident that plaintiff believed

depicted a corrections officer assaulting an inmate. (Supp. S.M.F. C)I 27.) Detective

John Fournier and Court Officer Scott Sutherland were also present when

plaintiff saw the video. (Supp. S.M.F. C)I 29.) After seeing the video, plaintiff

remarked to Detective Fournier and Officer Sutherland, "someone is going to

jail." (Supp. S.M.F. 30.) About two weeks later, plaintiff raised the incident in a

CID meeting attended by two of plaintiff's supervisors, Sergeant James

Estabrook and Lieutenant Donald Foss. (Supp. S.M.F. C)ICJI 8, 9, 31.) Plaintiff said

CID had not been assigned to investigate the case and he did not know why

nothing was being done. (Supp. S.M.F. C)I 31; Add. S.M.F. C)I 2.) Lieutenant Foss

responded that the matter was the subject of an internal affairs investigation.

(Supp. S.M.F. C)I 32.) Within a week of that meeting, plaintiff raised the issue

again with Sergeant Estabrook. (Add. S.M.F. C)I 3.) According to plaintiff, he

raised the issue a third time with Lieutenant Joel Barnes, the internal affairs

investigator.' (Add. S.M.F. C)I 4.) After a couple of months, plaintiff dropped the

issue. (Supp. S.M.F. C)I 39.)

Support for Michael Edes

At approximately the same time the video incident was unfolding,

plaintiff learned that Mr. Edes was considering running for Sheriff in the 2010

election. (Supp. S.M.F. C)I 46.) Plaintiff specifically remembers telling at least four

coworkers, including Detective Brian Ackerman, Captain Jeff Davis, Lieutenant

Foss, and Sergeant Estabrook, that plaintiff would support Mr. Edes in the

'Defendants deny that plaintiff raised the alleged assault with Lieutenant Barnes based

on plaintiff's deposition testimony. (Reply S.M.F. Cj[ 4.) Plaintiff's assertion is supported

by his answers to interrogatories. (Add. S.M.F. 9[ 4.)

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election if he ran against defendant Joyce. (Add. S.M.F. en 32.) Sergeant

Estabrook and Lieutenant Foss both report to defendants Joyce and Gagnon.

(Add. S.M.F. en 33.) According to Sergeant Estabrook and Lieutenant Foss, it was

widely known around the Sheriff's office that plaintiff did not support defendant

Joyce politically. (Add. S.M.F. !Jlen 29-31; Opp. S.M.F. en 53.) Defendants Joyce and

Gagnon claim they did not know plaintiff supported Mr. Edes until this lawsuit

was filed. (Supp. S.M.F. enen 53-54.)

Criminal Investigation

Defendants claim that after a review of department activities, Lieutenant

Foss noticed a significant decline in the number of plaintiff's pre-employment

polygraph examinations conducted for the County in 2011. (Supp. S.M.F. en 56.)

According to plaintiff, Lieutenant Foss instructed plaintiff to change the method

he used to report his statistics for polygraph examinations before 2011 and

Lieutenant Foss knew the change would lower plaintiff's numbers. (Opp. S.M.F.

en 56.) On February 7, 2012, Lieutenant Foss, Sergeant Estabrook, and Captain

Donald Goulet met with defendants Joyce and Gagnon to discuss plaintiff's pre-

employment polygraph statistics for 2011. (Supp. S.M.F. en 57.) The following

day, defendant Joyce placed plaintiff on administrative leave. (Supp. S.M.F. !JI

58.) At defendant Joyce's direction, Lieutenant Foss and Sergeant Estabrook

launched a criminal investigation to determine whether plaintiff was running his

private polygraph business on County time. (Supp. S.M.F. en 59.) According to

plaintiff, defendant Joyce directed who was to interview plaintiff as part of the

investigation. (Opp. S.M.F. en 60.)

Lieutenant Foss and Sergeant Estabrook reached the following

conclusions after the investigation. Plaintiff conducted some private polygraphs

4

during business hours for which he was paid by the County. (Supp. S.M.F. <[

62a.) Plaintiff used what was referred to in the Sheriff's Department as

"unmanaged camp time" to take paid time off during which he sometimes ran

his private business. (Supp. S.M.F. <[ 69.) This camp time accrued because CID

detectives are salaried employees, but sometimes worked longer hours than the

standard work week. (Supp. S.M.F. <[<[ 63-64.) For each extra hour worked,

detectives would earn an hour of paid time off. (Supp. S.M.F. <[ 65.) Plaintiff

received permission from his supervisor, Sergeant Estabrook, on the days he left

work early. (Supp. S.M.F. <[ 67; Opp. S.M.F. <[ 62a.)

The investigation further revealed that plaintiff performed one private

polygraph while on a paid sick day. (Supp. S.M.F. <[ 62b.) On one occasion,

plaintiff used a County vehicle to deliver polygraph results for his business.

(Supp. S.M.F. <[ 62c.) Plaintiff's private clients would call plaintiff on his Sheriff's

Department phone and he would instruct them to call him back on his private

cell number. (Supp. S.M.F. <[ 62d.)

After the investigation and at defendant Joyce's direction, Lieutenant Foss

and Sergeant Estabrook met with the District Attorney to review the case. (Supp.

S.M.F. <[<[ 70-71.) The District Attorney declined to prosecute plaintiff. (Supp.

S.M.F. <[ 73.) Defendant Gagnon then transferred the case to the Maine Criminal

Justice Academy, which declined to take any action. (Supp. S.M.F. <[<[ 74-75.)

While the case was being referred to other departments, the matter was

also assigned' to Lieutenant Barnes to conduct an internal affairs investigation.

(Supp. S.M.F. <[<[ 76-77.) The investigation revealed policy violations for

' The parties' statements of material fact do not state who ordered the internal affairs

investigation. (See Supp. S.M.F. 9{76.)

5

plaintiff's use of sick time and unmanaged comp time to run his business. (Supp.

S.M.F.9I 78.) In addition, the investigation found that plaintiff failed to advise

Cumberland County law enforcement agencies that contacted plaintiff about pre-

employment polygraphs that the County charged less than his private company

for those services. (Supp. S.M.F. 9I 78.)

Following the internal affairs investigation, plaintiff had a

predetermination hearing with defendant Gagnon on April 18, 2012. (Supp.

S.M.F. 9I 81.) Plaintiff was represented by the Union and had an attorney present

at the hearing. (Supp. S.M.F. 9I 82.) Defendant Gagnon imposed discipline by

letter dated April 20, 2012, reassigning plaintiff from CID to patrol as a patrol

deputy. (Supp. S.M.F. 9I9I 83-84.) Lieutenant Barnes, the investigator, believed

that plaintiff was disciplined more harshly than he deserved. (Add. S.M.F. 9I 21.)

Plaintiff grieved defendant Gagnon's decision to the County Manager, who

upheld the discipline. (Supp. S.M.F. 9I 85.) The Union pursued the case to

arbitration, and an arbitration hearing was held on March 13, 2013. (Supp. S.M.F.

9I9I 86-87.) The arbitrator overturned plaintiff's demotion. (Supp. S.M.F. 9I 88;

Opp. S.M.F. 9I 88; Add. S.M.F. 9I 22.)

After the arbitrator overturned the demotion, the defendant County of

Cumberland terminated plaintiff's employment. (Add. S.M.F. 9I 23.) The same

arbitrator overturned the termination. (Add. S.M.F. 9I 24.) Plaintiff returned to

work on August 26, 2013. (Supp. S.M.F. 9I 89.)

Defendants acknowledge that many Sheriff's Department employees have

used unmanaged comp time for personal reasons such as running errands,

attending ballgames, and drinking alcohol. (Add. S.M.F. 9I 25.) No one else has

been investigated for these instances. (Add. S.M.F. 9I 25.) Defendant Joyce is

6

aware of one incident involving a commander at Logan Airport who had

forgotten his passport. (Add. S.M.F. 9I 26.) A lieutenant picked up the passport at

the commander's house and drove from Maine to Boston in a County vehicle to

deliver the passport. (Add. S.M.F. 9I 27.)

DISCUSSION

1. Standard of Review

"Summary judgment is appropriate if the record reflects that there is no

genuine issue of material fact and the movant is entitled to judgment as a matter

of law." Dussault v. RRE Coach Lantern Holdings, LLC, 2014 ME 8, 9I 12, 86 A.3d

52 (quoting F.R. Carroll, Inc. v. TD Bank, N.A., 2010 ME 115, 9I 8, 8 A.3d 646). "A

material fact is one that can affect the outcome of the case, and there is a genuine

issue when there is sufficient evidence for a fact-finder to choose between

competing versions of the fact." Mcilroy v. Gibson's Apple Orchard, 2012 ME 59,

9I 7, 43 A.3d 948 (quoting N. E. Ins. Co. v. Young, 2011 ME 89, 9I 17, 26 A.3d 794).

"Even when one party's version of the facts appears more credible and

persuasive to the court, any genuine factual dispute must be resolved through

fact-finding, regardless of the nonmoving party's likelihood of success." Lewis v.

Concord Gen. Mut. Ins. Co., 2014 ME 34, 9I 10, 87 A.3d 732. If facts are

undisputed but nevertheless capable of supporting conflicting, plausible

inferences, "the choice between those inferences is not for the court on summary

judgment." Id.

2. Maine Whistleblowers Protection Act Claim

The Act provides, in part:

No employer may discharge, threaten or otherwise discriminate

against an employee regarding the employee's compensation,

terms, conditions, location, or privileges of employment because

7

the employee, acting in good faith ... reports orally or in writing to

the employer or a public body what the employee has reasonable

cause to believe is a violation of a law or rule adopted by the laws

of this state, a political subdivision of this state, or the United

States.

26 M.R.S. § 833 (2013). A claim for a violation of the Maine Whistleblower' s

Protection Act (WP A) is technically an action under the Maine Human Rights

Act (MHRA) and it is therefore evaluated "within the framework of the MHRA."

Fuhrmann v. Staples the Office Superstore E., Inc., 2012 ME 135, <[ 14, 58 A.3d

1083. In evaluating a motion for summary judgment in an employment

discrimination case, the court must "apply a three-step burden-shifting analysis

to determine whether (1) the employee has presented prima facie evidence of

discrimination; (2) the employer has presented prima facie evidence of a

legitimate non-discriminatory reason for the adverse action; and, in response, (3)

the employee has presented prima facie evidence that the employer's proffered

reason is pretextual or untrue." Id. <[ 13.

a. Prima Facie Case

To demonstrate a prima facie case for whistleblower discrimination,

plaintiff must show: (1) he engaged in protected activity under the WPA, (2) he

experienced an adverse employment action, and (3) there is a causal link

between the protected activity and the adverse employment action. Id. <[ 15.

1) Protected Activity

Protection under the WPA is limited "to (1) employees (2) who report to

an employer (3) about a violation (4) committed or practiced by that employer."

Hickson v. Vescom Corp., 2014 ME 27, <[ 18, 87 A.3d 704. There is no serious

8

dispute that plaintiff is an employee, that the inmate assault incident was a

violation, and that violation was committed by the employer.'

At issue is whether plaintiff "reported" the violation to his employer. A

report includes "complaining to one's supervisors." Osher v. Univ. of Me. Sys.,

703 F. Supp. 2d 51, 66 (D. Me. 2010). Plaintiff claims he complained about the

assault incident at a meeting attended by two of his supervisors, Lieutenant Foss

and Sergeant Estabrook. (Add. S.M.F. «1[ 1.) Within a week of that meeting,

plaintiff claims he raised the issue again with Sergeant Estabrook. (Add. S.M.F. «1[

3.) Plaintiff later asked Lieutenant Barnes about the assault and why nothing had

been done about it. (Add. S.M.F. «1[ 4.) Plaintiff has raised a genuine issue of

material fact regarding protected activity.

2) Adverse Employment Action

"An employee has suffered an adverse employment action when the

employee has been deprived ... of 'something of consequence' as a result of a

demotion in responsibility, a pay reduction, or termination .... " LePage v. Bath'

Iron Works Corp., 2006 ME 130, «1[ 20, 909 A.2d 629 (quoting Blackie v. State of

Maine, 75 F.3d 716, 725 (1st Cir. 1996)). Defendants admit plaintiff was

investigated, reassigned, and temporarily terminated. (Reply S.M.F. «1[ 6.) Plaintiff

has raised an issue of fact regarding an adverse employment action.

3) Causal Connection

With respect to plaintiff's WPA claim, defendants primarily dispute

whether plaintiff can demonstrate a causal connection between the protected

activity and the adverse employment actions. The court is "mindful that

'This claim is brought against defendant County of Cumberland. Defendants Joyce and

Gagnon cannot be held individually liable for a violation of the WP A. Fuhrmann v.

Staples th~ Office Superstore E., Inc., 2012 ME 135, <[ 35, 58 A.3d 1083.

9

discrimination claims in general are often difficult to assess at the summary

judgment stage, and particularly that the issue of whether an employee has

generated an issue of fact regarding an employer's motivation or intent is one

heavily dependent on the individual facts before the court." Fuhrmann, 2012 ME

135, err 13, 58 A.3d 1083.

The timing of events m this case is plaintiff's greatest obstacle to

demonstrating a prima facie case. Plaintiff alleges he saw the video depicting the

assault in May 2010, and concedes that he dropped the issue within a few

months of seeing the video. (Opp. S.M.F. errerr 27, 39.) Plaintiff was not placed on

administrative leave until February 8, 2012. (Opp. S.M.F. err 58.) Thus, the gap

between plaintiff's complaints and the adverse employment action was well over

one year. Courts have held that time gaps much shorter than one year are

insufficient as a matter of law to raise an inference of causation in discrimination

cases. See Capalbo v. Kris-Way Truck Leasing, Inc., 821 F. Supp. 2d 397, 417-18

(D. Me. 2011) (seven months); Mor6n-Barradas v. Dep't of Educ. of P.R., 488 F.3d

472, 481 (1st Cir. 2007) (eight months); Ahern v. Shinseki, 629 F.3d 49, 58 (1st Cir.

2010) (several months). Plaintiff cannot rely on temporal proximity alone to raise

an issue of material fact on causation.

Plaintiff argues that other circumstantial evidence demonstrates that

defendants' actions were motivated in part by plaintiff's complaints. Plaintiff has

produced evidence that his supervisor, Lieutenant Foss, instructed him not to

report his private polygraph examinations in his yearly employment statistics.

(Add. S.M.F. err 11.) Plaintiff was investigated in 2011 after following Lieutenant

Foss's instructions, when his polygraph examination numbers were much lower

than the previous year. Although Lieutenant Foss's initial conversation

10

happened within six months of plaintiff's complaints, it was not an adverse

employment action. Lieutenant Foss simply told plaintiff to report his statistics in

a different manner.

The remainder of plaintiff's assertions suggests defendants continued to

pursue investigations, both criminal and administrative, well beyond what the

findings from those investigations merited. This evidence is relevant to

plaintiff's burden on the third step of the analysis on summary judgment: that

defendants' proffered nondiscriminatory reason is pretextual. This evidence

alone, however, does not establish plaintiff's prima facie case.• See Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) ("[A] plaintiff's prima

facie case, combined with sufficient evidence to find the employer's asserted

justification is false, may permit the trier of fact to conclude that the employer

unlawfully discriminated." (emphasis added)). The cases plaintiff relies on

concern the third step of the burden-shifting analysis, after plaintiff has already

demonstrated a prima facie case. See Cookson v. Brewer Sch. Dep't, 2009 ME 57,

9I 15, 974 A.2d 276 ("Cookson has generated issues of fact regarding her prima

facie case .... "); Trott v. H.D. Goodall Hosp., 2013 ME 33, 9I 16, 66 A.3d 7

(relying on the "close temporal nexus" between protected activity and an

adverse employment action for plaintiff's prima facie case); Stanley v. Hancock

County Comm'rs, 2004 ME 157, 9I9I 15-16, 864 A.2d 169 (same).

In this case, there is an absence of any evidence of causation. There is no

evidence that defendants Joyce and Gagnon were aware of plaintiff's statements

about the assault. There is no evidence that the investigation regarding plaintiff's

' "Because the MHRA generally tracks federal anti-discrimination statutes, it is

appropriate to look to federal precedent for guidance in interpreting the MHRA." Doyle

v. Dep't of Human Servs., 2003 ME 61, 9I 14 n.7, 824 A.2d 48.

11

polygraph numbers was initiated in response to plaintiff's complaints. The

significant time gap between plaintiff's complaints and the investigation is too

long to support an inference of causation. Plaintiff has failed to meet his burden

on step one of the burden-shifting analysis. Accordingly, defendant County of

Cumberland is entitled to judgment on count I of plaintiff's complaint.

3. Maine Civil Rights Act Claim

In count II of his complaint, plaintiff alleges that defendants attempted to

interfere with plaintiff's free speech rights in violation of the Maine Civil Rights

Act. Under 5 M.R.S. § 4682,

Whenever any person, whether or not acting under color of law,

intentionally interferes or attempts to intentionally interfere by

physical force or violence against a person, damage or destruction

of property or trespass on property or by the threat of physical

force or violence against a person, damage or destruction of

property or trespass on property with the exercise or enjoyment by

any other person of rights secured by the United States

Constitution or the laws of the United States or of rights secured by

the Constitution of Maine or laws of the State or violates section

4684-B, the person whose exercise or enjoyment of these rights has

been interfered with, or attempted to be interfered with, may

institute and prosecute in that person's own name and on that

person's own behalf a civil action for legal or equitable relief.

5 M.R.S. § 4682(1-A) (2013).' To demonstrate a valid claim under this section,

plaintiff must allege "an interference with his free speech rights by physical force

or violence, damage or destruction of property, trespass on property, or threats

thereof." Andrews v. Dep't of Envtl. Prot., 1998 ME 198, 9I 23, 716 A.2d 212.

Plaintiff argues that defendants have damaged or destroyed his property

by terminating his employment. The statute, however, also refers to "trespass on

property," which suggests that the statue covers tangible property only. See

Andrews, 1998 ME 198, 9[9[ 9, 23, 716 A.2d 212 (dismissing Maine Civil Rights

, Section 4684-B does not apply to the facts of this case. See 5 M.R.S. § 4684-B (2013).

12

Act Claim where plaintiff alleged only adverse employment actions); see also

Connolly v. Henrietta D. Goodall Hosp., Inc., 2006 WL 270222, at *3 (Me. Super.

Ct. Jan. 6, 2006) (dismissing claim where plaintiff was suspended from work

without pay for one day because plaintiff failed to allege force or violence,

damage or destruction of property, or trespass on property). The cases plaintiff

relies on concern the meaning of property for purposes of the Due Process

Clause and do not apply in this context. See Clukey v. Town of Camden, 717 F.3d

52, 56 (1st Cir. 2013); Lovejoy v. Grant, 434 A.2d 45, 50 (Me. 1981).

Even if plaintiff is correct that defendants "damaged or destroyed" his

property by firing him, plaintiff's MCRA claim fails because plaintiff cannot

demonstrate causation for the same reasons discussed with regard to plaintiff's

WP A claim. Plaintiff's conversations about possibly supporting Mr. Edes in the

election occurred before the 2010 election in November. The investigation into

plaintiff's polygraph statistics and the employment action did not occur until late

2011 and early 2012. There is no other evidence linking plaintiff's political

statements to the investigation. Accordingly, all defendants are entitled to

judgment on count II of plaintiff's complaint.

4. Discretionary Function Immunity

Defendants· have raised the defense of discretionary function immunity

for plaintiff's remaining tort claims under the Maine Tort Claims Act. See 14

M.R.S. § 8111(1)(C) (2013). "Discretionary function immunity protects

government employees from personal civil liability for conduct undertaken in

· Although plaintiff alleged defamation and interference with advantageous relationship

against defendant County of Cumberland, plaintiff concedes that defendant County of

Cumberland is absolutely immune from liability on plaintiff's tort claims. (Pl.'s Opp.

Mem. at 18.)

13

their official capacities." Hilderbrand v. Washington County Comm'rs, 2011 ME

132, 1 8, 33 A.3d 425. If the privilege applies, employees are protected from

liability even if they abuse their discretion. Id. 1 9. An employee will lose

immunity, however, "when the conduct so clearly exceeds the scope of an

employee's authority that the employee cannot have been acting in his official

capacity." Id.

Because "there is no comprehensive statute describing all of the duties of

sheriffs in Maine," id. 111, the court applies "a four-factor test to determine the

scope of immunity:"

(1) Does the challenged act, om1sswn, or decision necessarily

involve a basic governmental policy, program or objective? (2) Is

the questioned act, omission or decision essential to the realization

or accomplishment of that policy, program, or objective as opposed

to one which would not change the course or direction of the

policy, program, or objective? (3) Does the act, omission, or

decision require the exercise of basic policy evaluation, judgment,

and expertise on the part of the governmental agency involved? (4)

Does the governmental agency involved possess the requisite

constitutional, statutory, or lawful authority and duty to do or

make the challenged act, omission, or decision?

Id. 110 (quoting Tolliver v. Dep't of Transp., 2008 ME 83, 119, 948 A.2d 1223

(plurality opinion)). The court finds that all of these factors weigh in favor of

immunity for all of the alleged actions and statements, with one exception.

First, the majority of the challenged actions, including the initial

investigation, referring the case to the District Attorney's office, and referring the

case to the Maine Criminal Justice Academy, involve the basic government

objective of exposing and preventing employee misconduct. Second,

investigating reports of potential misconduct is essential to meeting that basic

objective. Despite plaintiff's claims, there is no evidence in the record that the

investigations were pursued in bad faith. Third, the decision whether to refer a

14

matter for further review and investigation involves the basic exercise of

judgment by the Sheriff's Department. Plaintiff argues that after the District

Attorney's office declined to prosecute plaintiff, defendants should not have

referred the matter to the Maine Criminal Justice Academy. But whether

employee misconduct rises to the level of a crime is a different question than

whether it violates the employer's own policies or other ethical standards.

Finally, the Sheriff's Department has the authority to conduct its own

investigations, refer matters for potential criminal prosecution, and refer matters

to the Maine Criminal Justice Academy for conduct potentially leading to

decertification. Defendants are therefore immune from suit for these actions.

One alleged incident, however, falls outside the scope of discretionary

function immunity. Plaintiff alleges that Sergeant Estabrook contacted Michael

Grovo, Chief of the Buxton Police Department and one of plaintiff's private

polygraph clients prior to any finding of misconduct on the part of plaintiff.

According to Grovo, Sergeant Estabrook stated he was investigating plaintiff for

working on his private polygraph business while on duty for and being paid by

the County. (Add. S.M.F. 1 41.) Unlike the investigation itself, statements to

third parties concerning the results of an investigation are not essential to

accomplish any basic government objective. See Rippett v. Bemis, 672 A.2d 82, 88

(Me. 1996) (an investigation is a discretionary official act, but public statements

concerning the results of an investigation are not). The court must therefore

determine whether defendants are potentially liable for Sergeant Estabrook's

statements. Id. at 88-89.

15

5. Defendants Joyce and Gagnon's Liability for Sergeant Estabrook's

Statement

Although plaintiff has not filed suit against Sergeant Estabrook

individually, plaintiff seeks to hold defendants Joyce and Gagnon' vicariously

liable for Sergeant Estabrook's tortious conduct. As plaintiff points out, the Law

Court has quoted the Restatement (Third) of Agency § 7.08, which provides:

A principal is subject to vicarious liability for a tort committed by

an agent in dealing or communicating with a third party on or

purportedly on behalf of the principal when actions taken by the

agent with apparent authority constitute the tort or enable the

agent to conceal its commission.

Gniadek v. Camp Sunshine at Sebago Lake, Inc., 2011 ME 11, 9I 34, 11 A.3d 308

(quoting Restatement (Third) of Agency§ 7.08 (2006)).

Although defendants Joyce and Gagnon might otherwise be liable for

Sergeant Estabrook's conduct in this case, they have discretionary function

immunity in their capacity as Sergeant Estabrook's supervisors. As the Rippett

court explained, "[t]he Maine Tort Claims Act in general provides immunity

from liability for government officials acting in their discretionary function of

properly supervising employees who are performing discretionary functions."

Rippett, 672 A.2d at 88. There is no evidence that defendant Joyce or Gagnon

directed Sergeant Estabrook to make the alleged defamatory statements to

Grovo, which might support a finding that defendant Joyce and/ or defendant

Gagnon was not performing an official discretionary act.

' Plaintiff concedes that a predetermination letter written by defendant Gagnon is

absolutely privileged. (Pl.'s Mem. 13.) In the predetermination letter, defendant Gagnon

wrote "your unscrupulous practice of not informing potential municipal clients of fees

involved, cost taxpayers untold amounts of tax dollars above what would have been

incurred with the polygraphs being performed by CCSO." (Supp. S.M.F. <[ 93.) Plaintiff

has failed to identify any other defamatory statements made by defendants Joyce or

Gagnon personally.

16

Defendant Joyce's decision to conduct an investigation and delegate to

Sergeant Estabrook certain aspects of that investigation was discretionary. To

the extent defendant Gagnon participated in the investigation, he is also

immune. See Miller v. Szelenyi, 546 A.2d 1013, 1022 (Me. 1988). ("Those who

assist or participate in a decision or other action protected by the discretionary

immunity provisions are themselves immune to the extent of their assistance or

participation.").

Finally, in Rippett, the sheriff waived immunity from vicarious liability to

the extent of the sheriff's department's liability insurance coverage. Id. at 89.

There is no evidence of any such insurance coverage in this case. (Supp. S.M.F.

9[9[ 103-06.)

Plaintiff has failed to raise an issue of material fact with regard to a prima

facie case for his WP A discrimination and MCRA claims and with regard to

discretionary function immunity under the MTCA for his remaining claims.

The entry is

The Defendants' Motion for Summary Judgment is

GRANTED. Judgment is granted in favor of

Defendants Kevin Joyce, Naldo Gagnon, and County

of Cumberland and against Plaintiff Gerard Brady on

all counts of Plaintiff's Complaints.

Date: /J ·j -/f ancy Mills

Justice, Superior Court

17

GERARD BRADY - PLAINTIFF SUPERIOR COURT

ANDROSCOGGIN, ss.

Attorney for: GERARD BRADY Docket No AUBSC-CV-2013-00056

JONATHAN M GOODMAN - RETAINED

TJ H HEISLER

51.L CONGRESS ST DOCKET RECORD

PO BOX 9711

PORTLAND ME 04104-5011

vs

COUNTY OF CUMBERLAND - DEFENDANT

Attorney for: COUNTY OF CUMBERLAND

PETER MARCHESI - RETAINED 05/14/2013

WHEELER & AREY PA

27 TEMPLE ST

PO BOX 376

WATERVILLE ME 04903-0376

Filing Document: COMPLAINT Minor Case Type: OTHER NEGLIGENCE

Filing Date: 04/16/2013

Docket Events:

04/23/2013 FILING DOCUMENT - COMPLAINT FILED ON 04/16/2013

04/23/2013 Party(s): GERARD BRADY

ATTORNEY - RETAINED ENTERED ON 04/16/2013

Plaintiff's Attorney: JONATHAN M GOODMAN

04 1 ~3/2013 Party(s): COUNTY OF CUMBERLAND

SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 04/12/2013

THROUGH WILLIAM WHITTEN

04/23/2013 Party(s): COUNTY OF CUMBERLAND

SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 04/18/2013

04/23/2013 CERTIFY/NOTIFICATION - CASE FILE NOTICE SENT ON 04/23/2013

05/14/2013 Party(s): COUNTY OF CUMBERLAND

RESPONSIVE PLEADING - ANSWER & AFFIRMATIVE DEFENSE FILED ON 05/14/2013

05/14/2013 Party(s): COUNTY OF CUMBERLAND

ATTORNEY - RETAINED ENTERED ON 05/14/2013

Defendant's Attorney: PETER MARCHESI

05/14/2013 Party(s): COUNTY OF CUMBERLAND

MOTION - MOTION TO CHANGE VENUE FILED ON 05/14/2013

WITH MEMORANDUM OF LAW, REQUEST FOR HEARING

05/28/2013 Party(s): GERARD BRADY

OTHER FILING - OPPOSING MEMORANDUM FILED ON 05/24/2013

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR TRANSFER OF VENUE

05 1 ,1/2013 Party(s): COUNTY OF CUMBERLAND

Page 1 of 4 Printed on: 10/06/2014