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Sacco v. Town of New Gloucester

Superior Court of Maine

June 7, 2016

SANDRA SACCO, Petitioner
v.
TOWN OF NEW GLOUCESTER, Respondent

          JUDGMENT

          NANCY MILLS JUSTICE

         Jury-waived trial of the facts on count I of petitioner Sandra Sacco's amended complaint against respondent Town of New Gloucester was held on December 2 and 3, 2015. Briefs were filed by March 18, 2016. Subject to respondent's motion in limine, the issues presented by petitioner are

1. whether respondent improperly used the executive session function under 1 M.R.S. § 405;
2. whether respondent improperly failed to notify petitioner of her right to be present at the executive session resulting in the reduction of hours and failure to provide her with an opportunity to be heard;
3. whether respondent improperly failed to reinstate petitioner to the bookkeeper position on December 2, 2013; and
4. whether respondent improperly failed to reinstate petitioner to the bookkeeper position on December 26, 2013.

(Pet.'s Opp'n Mot. Limine 4; Resp.'s Mot. Limine 1-2.) For the following reasons, the court concludes respondent did not violate section 405 on November 4, 2013. Respondent's failure to reinstate petitioner on December 2, 2013 and on December 26, 2013 is affirmed.

         PROCEDURAL HISTORY

         On February 7, 2014, petitioner filed her complaint against respondent. She alleged five causes of action: count I, Rule 80B review of respondent'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 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 the Town's former Town Manager, Sumner Field, as a respondent. She reasserted count I, Rule 80B review, against respondent Town; asserted count II, violation of due process under 42 U.S.C. § 1983; count III, equitable estoppel; and count IV, promissory estoppel, against both respondents; asserted 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, IV, 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 were counts I and II against respondent Town only. On September 1, 2015, petitioner filed an opposition to respondent's motion for summary judgment. On September 11, 2015, respondent filed a reply to petitioner's statement of additional facts and moved to strike lay opinion testimony in petitioner's opposition. On November 12, 2015, the court denied respondent's motion for summary judgment as to count I and granted the motion as to count II. The court also granted respondent's motion to strike lay opinion testimony.

         On November 30, 2015, respondent filed a motion in limine seeking to limit the trial to the issue of whether respondent improperly refused to consider petitioner's application. Respondent argued that petitioner's claims under the Freedom of Access Act (FAA) were untimely because she did not bring them within 30 days of discovering the alleged violation.

         A bench trial was held on December 2 and 3, 2015. The motion in limine was argued on December 2. The court determined that during trial, the court would consider the four issues listed by petitioner in her memorandum in opposition to the motion in limine. The court took respondent's motion in limine under advisement.

         FINDINGS OF FACTS

         Petitioner is age 56 and since September 2015 has resided in Sebastian, Florida. She worked for respondent for nearly 26 years, originally as deputy clerk and tax collector and, since 2007, as deputy treasurer and bookkeeper. Her duties included processing payroll for respondent's employees, bookkeeping, reconciling accounts, and the budget. Respondent has 25 employees and eight employees work at the Town office.

         Prior to November 4, 2013, petitioner had not been disciplined by respondent. She worked closely with Mr. Field. When he became manager, she discussed her concerns about her job and Mr. Field told her he had no issues with her or the job. This relationship continued until November 2013. She knew that Mr. Field had submitted his resignation and would no longer be working after January 2, 2014.

         During her employment with respondent, she was not required to attend Board meetings. She did not attend the November 4, 2013 meeting because she did not know the bookkeeper position would be discussed or changes would be made to the position. She knew the agenda included an executive session with regard to "employment, assignment and duties of employees." (Pet.'s Ex. 4.)

         Petitioner worked the week of November 4. On November 5, 2013, at 3:00 p.m., Mr. Field said he needed to speak to petitioner. He told her the bookkeeper position's hours would be decreased to 24 hours per week and benefits would be eliminated. He said he did not know any further details other than a motion was made at the November 4 meeting and it passed effective January 2, 2014 by a three to two vote.

         Petitioner testified she asked what she could do to retain her full-time position and continue to receive benefits. She testified Mr. Field said he would work with her and figure something out.

         Petitioner requested to speak to the Board. Mr. Field stated she could not and could speak only to the Chair of the Board, Steven Libby. Petitioner asked if she could set up a meeting and Mr. Field said he would do that. She assumed he did that because on November 5, Mr. Field said Mr. Libby would contact petitioner. On November 6, petitioner asked Mr. Field if he had contacted Mr. Libby and asked again if she could meet with him. Mr. Field responded that Mr. Libby had not gotten back to Mr. Field and he did not know. She requested to perform other tasks and Mr. Field said he would look into that. She did not know he thought he needed an administrative assistant and they did not discuss that. As far as she knew, she performed administrative duties.

         She did not receive any further response from Mr. Libby. Mr. Field left at noon on November 8 without speaking with petitioner. She described herself as "a mess" and called her primary care physician on November 11, who felt petitioner should remain out of work for two weeks, which she did because of stress and anxiety. Petitioner put the doctor's note on Mr. Field's desk on November 12.

         During the following two weeks she was on medical leave. With the news that her hours were reduced and with everything that was going on, she was an "emotional mess." Her interaction with Mr. Field during her medical leave was by email only. Petitioner never met with the Board or Mr. Libby.

         Petitioner did not attend the November 18 meeting. (Pet.'s Ex. 7.) She saw the agenda. She knew people were upset with the events of November 4 because New Gloucester citizens had called and sent notes to her. The Lewiston Sun also carried a story about the events.

         Petitioner watched the November 18 meeting on television. She was very grateful that Selectmen Joshua McHenry and Mark Stevens tried to have the bookkeeper position reinstated to 40 hours and benefits. Their effort failed. (Pet.'s Ex. 7 2.)

         While on leave, petitioner was aware there was a concern about banking information because of a change in banks. The relevant information was on petitioner's desk but she could not respond further until she returned to work from medical leave.

         Petitioner returned to work on November 25. Mr. Field stated that the amounts paid to the school districts were not correct. Mr. Field said the school payments were off by $28, 000.00. She responded that she had concluded the school payments were not correct and she had resolved the issue with the financial person at the school district. Everything had been resolved before her medical leave. Petitioner was shocked regarding issues about Cumberland County dispatch payments. She had a full schedule of the payments made and knew she was not wrong. She later learned that Mr. Field said he was wrong and that he learned the problems had been resolved.

         On November 25, Mr. Field asked petitioner to go to his office. There, he gave her a memo in which he stated she had made errors with the school payments and the Cumberland County dispatch payments. (Pet.'s Ex. 6.) The memo provided that petitioner was on probation for 60 days, which could result in termination. (Pet.'s Ex. 6.)

         Petitioner had never had anything like this happen in her career. She felt Mr. Field had suspended her for two weeks and she left that day at 9:00 or 9:30 a.m. She spoke to her husband, who informed her she was on probation, not suspended, and should be at work. Petitioner called Mr. Field and stated she had misconstrued what was being done, she was going to take a sick day, and would be back at work the following day. She continued to read the memo from Mr. Field, however, and felt she was being pushed out. She denied having a negative attitude, as stated in the memo, and enjoyed her work. She believed that what happened had nothing to do with reorganization and respondent wanted her out of there.

         When she went to work on November 25, she had no intention of resigning. Petitioner decided to resign after being confronted with Mr. Field's allegations regarding accounting errors and because of the way Mr. Field treated her on November 25. She submitted her resignation. (Pet.'s Ex. 8.)[1] She felt Mr. Field had lied in the memo and she was being pushed out. She was newly married and depended on her income.

         If she could turn back the clock, petitioner would not have resigned. The resignation was a rash decision that she regretted. She knew reinstatement of the bookkeeper position would be revisited at the December 2 meeting but resigned anyway. At trial, she testified her resignation resulted from a combination of everything, including the November 4 action and what Mr. Field said to her. She did not know what to do.

         She had intended to work until age 60. She and her husband then intended to retire and live in Florida. She would not have resigned if the November 4 decision had not been made but she could not see herself continuing to work there under those conditions.

         She followed the personnel handbook policy and gave two weeks notice on November 25; she intended to work the two weeks. (Pet.'s Ex. 15 ¶ 16.) The Town Manager may make an exception to the notice requirement. Mr. Field accepted her resignation and told her there was no reason for her to work the two weeks and she would be paid for the weeks. (Pet.'s Ex. 8.) From November 25 to December 6, she did not go to the office on a regular basis to work because Mr. Field said it was unnecessary. She continued to receive paychecks. She dropped off her keys on December 6 when she received her last paycheck. Petitioner never rescinded her resignation.

         Petitioner attended the December 2 Board meeting. People spoke about the executive session and in support of petitioner's reinstatement. (Pet.'s Ex. 9 1.) A motion was made to reconsider the November 4 motion. The motion passed and, in response to a question, Mr. Libby stated he understood that the action returned things back to before the November 4 meeting. (Pet.'s Ex. 9 2.)

         Petitioner did not say anything at the December 2 meeting because she was too emotionally unstable because of what had happened. It did not occur to her that the Board should have said she was to return to work on Monday. She did not rescind her resignation between December 2 and December 6. When asked whether she considered she had her job back after the December 2 vote, she testified she did not think of it at all. She was quite confused. She did not return to work.

         Petitioner consulted an attorney a week after the December 2 meeting to learn her legal rights and responsibilities under the rules. Between December 2 and December 26, respondent posted the bookkeeper position on its website. (Pet.'s Ex. 10.) Petitioner was aware of the posting. A special meeting of the Board was held on December 26. The offering to petitioner of severance pay and salary was listed on the agenda.

         At the December 26 meeting, petitioner asked the Board to rehire her. (Pet.'s Ex. 111.) The Board stated it was not the Board's decision and the Town Manager hires and manages the position. (Pet.'s Ex. 111.) She knew she had to reapply for the bookkeeper position and she testified at her deposition that she knew she had to reapply for the bookkeeper position. (Pet.'s Ex. 20 143.) She submitted by email a letter, drafted by her attorney, in which she requested reinstatement. (Pet.'s Ex. 12.) When asked at trial whether she reapplied because she did not think she had a job, she testified that was how it was made to look because the job was posted.

         The December 26 meeting ended just after 4:00 p.m., when the Town office closes. Petitioner submitted her application several hours later. (Pet.'s Ex. 12.)

         Because she received no response from Mr. Field to her December 26 email, she sent another email to him. (Pet.'s Ex. 13.) Mr. Field responded by letter dated Sunday, January 6, 2014, which petitioner received on January 7, 2014. (Pet.'s Ex. 14.) She was told her application had been submitted after the deadline and would not be considered.

         Respondent's personnel policy and procedures provide for discipline, discharge, and suspension. (Pet.'s Ex. 15 ¶ 18.) Petitioner was aware of the grievance procedure and she was aware a grievance must be submitted in writing. (Pet.'s Ex. 15 ¶ 17.) A grievance must be commenced no later than ten days after the event that gives rise to the grievance. (Pet.'s Ex. 15 ¶ 17.) She did not file a written grievance. Petitioner said a grievance was not in the forefront of her thoughts. She felt the meeting with Mr. Field was enough and she considered her request to speak to Mr. Libby a grievance.

         Since December 6, 2013, she has worked for temporary services and for a number of employers, including the Town of North Yarmouth. She resigned from that job. She has applied for positions similar to the one she had with respondent.

         Petitioner and her husband, who retired from employment with respondent, sold their home, and moved to Florida in September 2015. They now own a house in Sebastian, ...


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