ORDER ON DEFENDANT'S MOTION TO DISMISS
MICHAELA MURPHY JUDGE.
the Court is Defendant's Motion to Dismiss. Plaintiff
represents himself. Defendant is represented by Assistant
Attorney General Kelly L. Morrell.
has brought claims for slander per se and libel per se
against his former supervisor after being discharged from the
Office of the Attorney General. Plaintiff was hired as an
Assistant Attorney General to work in the Child Support
Enforcement Division in September 2016. His direct supervisor
was Defendant Debby Willis, chief of the Division. Plaintiff
contends that he received generally positive feedback from
Defendant during the first six months of his employment. He
alleges that in a February 2017 meeting to review his job
performance, Defendant told Plaintiff that she was satisfied
with his performance.
alleges that Defendant's attitude towards him turned
hostile shortly thereafter as a result of an email exchange.
Plaintiff contends that he responded to a group email from a
colleague about how to interpret a statute. He alleges that
he suggested a different interpretation than that of
Defendant and that he did so in a professional manner.
According to Plaintiff, Defendant told him that the email
bothered her and reprimanded him for sending it. Plaintiff
states that he then asked for an explanation of "what
harm he had caused and what he had done wrong by sharing his
opinion in an open discussion with his colleagues" and
Defendant could not provide one.
alleges that Defendant "made him a target of intense and
harsh scrutiny" following the email incident. Plaintiff
contends that his job performance remained the same but that
Defendant became increasingly critical. Plaintiff alleges
that in order to damage his reputation and remove him from
the Attorney General's office, Defendant made false and
defamatory remarks about Plaintiff. Particularly, Plaintiff
alleges that in March 2017, Defendant wrote a memo stating
that the court had ordered Plaintiff to serve a party and
that Plaintiff "had refused to do so." Plaintiff
attests that Defendant knew this statement was false because
she had seen an email that Plaintiff sent to the deputy chief
which ended with "I will do as you direct."
5, 2017, Defendant met with Plaintiff to tell him that, based
upon her recommendation, the Attorney General was terminating
his employment. Defendant gave Plaintiff a memo on his job
performance which stated that Plaintiff had been "rude
and arrogant" during his court appearances. Plaintiff
contends that this statement was baseless and was made only
to ensure Plaintiff's employment was terminated.
Plaintiff alleges that following the termination of his
employment as an Assistant Attorney General, Defendant was
forced to accept lower paying employment. He alleges that he
earned a salary of $57, 948.80 annually as an Assistant
Attorney General and only $48, 000.00 in his new employment.
Standard of Review
motion to dismiss tests the legal sufficiency of the
complaint. Bean v. Cummings, 2008 ME 18, ¶ 7,
939 A.2d 676. When reviewing a motion to dismiss, the Court
views "the complaint in the light most favorable to the
plaintiff, and treat the material allegations of the
complaint as admitted." Dragomir v. Spring Harbor
Hosp., 2009 ME 51, ¶ 15, 970 A.2d 310. Dismissal is
only appropriate "when it appears beyond doubt that a
plaintiff is entitled to no relief under any set of facts
that he might prove in support of his claim."
moves the Court to Dismiss Plaintiff's claims on the
basis that the claims are barred by discretionary immunity.
Discretionary immunity as found in the Maine Tort Claims Act,
provides that government entities and government employees
are immune from claims resulting from: "performing or
failing to perform a discretionary function or duty, whether
or not the discretion is abused . . . ." 14 M.R.S.
§§ 8104-B(3), 8111(1)(C); see Norton v.
Hall, 2003 ME 118, ¶ 6, 834 A.2d 928.
Quintal v. Hallowell, the plaintiff had been
employed by the city of Hallowell as Code Enforcement
Officer, Building Inspector, and Plumbing Inspector.
Quintal v. City of Hallowell, 2008 ME 155, ¶ 2,
956 A.2d 88. After taking comp time with the permission of
the City Clerk, but not that of the City Manager, as was
provided for in plaintiff's union contract when the City
Manager was unavailable, the City Manager became displeased
with the plaintiff. Id. ¶¶ 3-4. The City
Manager then took a number of steps, such as an unprecedented
evaluation in which he found the plaintiff's performance
minimally satisfactory, that undermined the plaintiff's
employment. Id. ¶¶ 6-7. The
plaintiff's employment was terminated. Id.
¶ 12. Upon a review of plaintiff's complaint,
including a tort claim for interference with a contractual
relationship, the Superior Court dismissed plaintiff's
action finding that the City Manager had discretionary
immunity. Id. ¶ 16. The Law Court upheld the
trial court decision. Id. ¶ 35. The Law Court
set out the four-factor test for determining that
discretionary immunity applies:
(1) Does the challenged act, omission, 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. ¶ 34, (citing Roberts v. State of
Maine,1999 ME 89, P8, 731 A.2d 855, 857; quoting
Adriance v. Town of Standish,687 A.2d 238, 240 (Me.
1996))). The Law Court applied the test to the facts ...