ORDER ON MOTION FOR SUMMARY JUDGMENT
NANCY MILLS, JUSTICE
Before the court is (1) respondent's motion for summary judgment on petitioner's amended complaint and (2) respondent's motion to strike lay opinion testimony in petitioner's opposition to summary judgment. For the following reasons, respondent's motion for summary judgment is granted in part and denied in part and its motion to strike lay opinion testimony is granted.
Petitioner Sandra Sacco, age 59, began working for respondent Town of New Gloucester in 1988. (Pl's Addt'l S.M.F. ¶ 1.) She served as the Deputy Treasurer/Bookkeeper (bookkeeper) for the last seven years of her employment, until she resigned on November 25, 2013. (Pl's Addt'l 1 S.M.F. ¶¶ 5, 28.) She anticipated retirement at age 64 or 65. (Pl's Addt'l S.M.F. ¶ 17.) She believed she had a right to continued employment and could only be terminated for just cause. (Pl's Addt'l S.M.F. ¶ 17.) The events leading to her resignation are the subject of this suit.
In October 2013, the Town Manager, Sumner Field, announced that he was retiring effective January 2, 2014. (Pl's Addt'l S.M.F. ¶ 7.) Mr. Field submitted a memorandum to the Chairman of the Board of Selectmen, Steve Libby, in which he suggested, among other things, that respondent Town hire a finance director. (Def/s S.M.F. ¶¶ 3-4.) The parties dispute Mr. Field's motivation for submitting the memorandum. Respondent Town claims that Mr. Field submitted it in response to a request by the Board of Selectmen (Board) for input from employees regarding factors to consider in selecting a new town manager. (Def.'s S.M.F. ¶¶ 2-3.) Petitioner claims that Mr. Field submitted the memorandum prior to the Board's request. (Pl's Opp. S.M.F. ¶¶ 2-3.)
The Board held a meeting on November 4, 2013. (Pl's Addt'l S.M.F. ¶ 12.) At this meeting, Mr. Field requested that the Board go into executive session. (Def.'s S.M.F. I 5.) The parties dispute the topic of discussion during the executive session. Petitioner asserts that the Board discussed reducing the bookkeeper's hours. (Pl's Opp. S.M.F. ¶¶ 5-6, 8-10, 12.) Respondent Town asserts that the Board discussed the creation of the finance director position and respondent Town's organizational structure and did not discuss reducing the bookkeeper's hours. (Def.'s S.M.F. ¶¶ 5-6, 8-10, 12.) The record does not include a transcript of the executive session.
When the Board came out of executive session, a motion was made to reduce the bookkeeper position from 40 hours per week to 24 hours per week and to hire an interim part-time finance director. (Def.'s S.M.F. ¶ 13.) As a result of the reduction in the bookkeeper's hours, the benefits for the position were eliminated. (Def.'s S.M.F. ¶ 19.) The reduction was scheduled to take effect in January 2014. (Def.'s S.M.F. ¶ 16.) Petitioner was not informed of the meeting and had no prior notice that her job duties would be a topic of discussion. (Pl's Addt'l S.M.F. ¶16.)
On November 5, 2013, Mr. Field informed petitioner of the Board's decision. (Pl's Addt'l S.M.F. ¶ 15.) Later that day, and again the next day, petitioner asked Mr. Field for a meeting with the Board. (Pl's Addt'l S.M.F. ¶ 19.) A meeting was never arranged. (Pl's Opp. S.M.F. ¶ 40.) Petitioner claims that Mr. Field told her he would arrange a meeting with Mr. Libby but never did. (Pl's Opp. S.M.F. ¶ 40.) Respondent Town claims that Mr. Field called Mr. Libby to arrange a meeting and informed petitioner that Mr. Libby would tell Mr. Field the meeting time. (Def.'s Reply to Pl's Addt'l S.M.F. ¶ 19.) The parties also dispute whether petitioner filed a grievance with the Board pursuant to respondent Town's personnel policy. Respondent Town claims that petitioner did not file a grievance. (Def.'s S.M.F. ¶¶ 47, 49.) Petitioner characterizes her attempts to meet with the Board as grievances and claims that Mr. Field thwarted them. (Pl's Opp. S.M.F. ¶ 49.)
Petitioner became very distressed about finances, health care coverage, and retirement. (Pl's Addt'l S.M.F. ¶ 18.) She sought medical help for stress, and her physician recommended that she be excused from work for two weeks. (Pl's Addt'l S.M.F. ¶ 20.) On November 11, 2013, petitioner gave Mr. Field a note from her physician excusing her from work. (Def.'s S.M.F. ¶ 25.) Petitioner was approved for a medical leave from November 11, 2013 to November 24, 2013. (Def.'s S.M.F. ¶ 27.)
While petitioner was on medical leave, Mr. Field became aware of issues regarding her work performance. (Def.'s S.M.F. ¶ 28.) Mr. Field drafted a memo to petitioner that outlined the issues he had discovered and informed her she was on probation for 60 days. (Def.'s S.M.F. ¶ 29.) Petitioner denies these work performance issues and claims Mr. Field fabricated them. (Pl's Opp. S.M.F. ¶ 28.) When petitioner returned to work on November 25, 2013, Mr. Field informed her that she was on probation. (Pl's Addt'l S.M.F. ¶ 25; Def.'s S.M.F. ¶ 31-) Petitioner mistakenly believed that she was being suspended without pay. (Pl's Addt'l S.M.F. ¶ 27.) She became upset and left work. (Pl's Addt'l S.M.F. ¶ 27.) Later that day, she sent an email to Mr. Field tendering her resignation. (Pl's Addt'l S.M.F. ¶ 28.) Mr. Field accepted her resignation that afternoon. (Def.'s S.M.F. ¶ 35.)
On December 2, 2013, the Board held a meeting and reversed its decision to reduce the bookkeeper's hours. (Pl's Addt'l S.M.F. ¶ 33.) Respondent Town then posted an announcement for applications for the bookkeeper position. (Pl's Addt'l S.M.F. ¶ 36.) The application deadline was December 26, 2013. (Pl's Addt'l S.M.F. ¶ 37.) The announcement did not include a specific time in the deadline. (Pl's Addt'l S.M.F. ¶ 37.) Petitioner was aware of the announcement and understood that she would have to apply for the position in order to get her job back. (Def.'s S.M.F.¶ 53.)
On December 26, 2013, the Board held a meeting to discuss, among other things, whether to provide petitioner with a severance package. (Pl's Addt'l S.M.F. ¶ 39.) Petitioner attended the meeting and requested that respondent Town reinstate her to her former position. (Pl's Addt'l S.M.F. ¶ 41.) The Selectmen informed her that only the Town Manager could reinstate her. (Pl's Addt'l S.M.F. ¶ 41.) At 8:01pm on December 26, petitioner sent an email to Mr. Field and requested that he reinstate her. (Def.'s S.M.F. ¶ 57.) He responded that her letter, which he characterized as an application, was received after the deadline and would not be considered. (Pl's Addt'l S.M.F. ¶ 44.)
On February 7, 2014, petitioner filed her complaint against respondent Town. She alleged five causes of action: count I, Rule 80B review of the Town's actions; count II, violation of due process under 42 U.S.C. § 1983; count III, equitable estoppel; count IV, promissory estoppel; and count V, interference with prospective economic advantage. On March 13, 2014, the court granted petitioner's motion to join the independent claims with the Rule 80B action.
Respondent Town filed a motion to dismiss on March 20, 2014. On April 15, 2014, petitioner filed an opposition to the motion to dismiss as to counts I through IV and agreed to dismiss count V. On the same day, petitioner filed a motion to amend the complaint and an amended complaint, in which she added Mr. Field as a respondent. She reasserted count I, Rule 80B review, against respondent Town; count II, violation of due process under 42 U.S.C. § 1983, count III, equitable estoppel, and count IV, promissory estoppel, against both respondents; count V, interference with prospective economic advantage, against respondent Field; and added count VI, intentional infliction of emotional distress, and count VII, negligent misrepresentation, against both respondents. On April 22, 2014, petitioner filed a motion for a trial of the facts. M.R. Civ. P. 80B(d).
On October 1, 2014, the court granted petitioner's motion for a trial of the facts and motion to amend the complaint. The court granted respondents' motion to dismiss the complaint in part and dismissed counts III, F/, V, and VII of the amended complaint.
On July 15, 2015, respondent Town moved for summary judgment. On August 31, 2015, the parties stipulated to dismissal with prejudice of count VI as to both respondents and dismissal of count II as to respondent Field only. The remaining counts in the amended complaint are counts I and II against respondent Town only. On September 1, 2015, petitioner filed an opposition to respondent Town's motion for summary judgment. On September 11, 2015, respondent Town filed a reply to petitioner's statement of additional facts and moved to strike lay opinion testimony in petitioner's opposition.
1. MOTION FOR SUMMARY TUDGMENT
A. Standard of Review
Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c). "A material fact is one that can affect the outcome of the case[, ]" and a genuine issue of material fact "exists when the factfinder must choose between competing versions of the truth." Dyer v. Dep't of Transp., 2008 ME 106, f 14, 951 A.2d 821 (citation omitted). "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." Estate of Lewis v. Concord Gen. Mut. Ins. Co., 2014 ME 34, ¶ 10, 87 A.3d 732.
B. Rule 80B Appeal
Petitioner challenges respondent Town's action under the Freedom of Access Act (FAA), 1 M.R.S. § 405, 30-A M.R.S. § 2605(4), and 30-A M.R.S. § 2606.
a) Trial of the Facts
Petitioner first argues that summary judgment is inappropriate because a trial of the facts has not occurred. (Pl's Opp'n to Def.'s Mot. Summ. J. 9-10.) The court granted petitioner's motion for a trial of the facts on October 1, 2014 and has not yet held the trial. The court is not precluded from deciding respondent's motion for summary judgment at this time. See Blumberg v. Town of Vassalboro, 2006 Me. Super. LEXIS 212, at *3 (Sept. 26, 2006) ("Although the town had earlier brought its motion for a trial of the facts, which was granted, this would not prevent the town from testing Blumberg's position by bringing the subsequent [summary judgment] motion supported by proper affidavits."); Cook v. Lisbon Sch. Comm. & ...