ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT
William R. Stokes Justice.
AND PROCEDURAL HISTORY
the court for resolution is the Defendant's (Town of
Benton) motion for partial summary judgment as to Counts II
and V of the First Amended Complaint. This case arises out of
the failure of the Town of Benton to appoint the Plaintiff
(Albert Tempesta) to the position of Code Enforcement Officer
(CEO) after his term of office to that position expired on
March 15, 2016.
commenced this action on April 1.4, 2016 with the filing of a
five-count complaint seeking relief on the following grounds:
appeal of the Town's action pursuant to M, R.Civ.P. 80B
(Count I); violation of his procedural due process rights to
notice and a hearing pursuant to 42 U.S.C. §1983;
discrimination on the basis of age pursuant to 5 M.R.S.
§§4572 et seq. (Count III); whistleblower
retaliation in violation of 5 M.R.S. §§831 et seq.
(Count IV), and; violation of 1 M.R.S. §407(2) of the
Maine Freedom of Access Act (FOAA) (Count V).
about May 5, 2016, the Town moved to dismiss the complaint on
the basis of M.R.Civ.P. 12(b)(6), for failure to state a
claim upon which relief may be granted. At the same time, the
Town filed its answer and affirmative defenses. Tempesta
opposed the motion to dismiss on July 5, 2016. In its reply
of July 14, 2016, the Town clarified that its motion to
dismiss did not extend to the age discrimination and
whistleblower retaliation claims.
Order dated November 29, 2016, the court (Mullen, J.)
addressed the Town's motion to dismiss but ultimately did
not actually rule on it. This appears to have been at the
request of Tempesta, who wanted the court to stay any action
on the motion to dismiss pending resolution of his claim(s)
before the Maine Human Rights Commission (MHRC). The court
granted the stay, but set forth in its order the
"factual history" of the case "with a summary
of the parties' respective arguments concerning the
Motion to Dismiss."
January 5, 2017, Tempesta moved for leave to file an amended
complaint, which was granted on February 4, 2017. The First
Amended Complaint is virtually identical to 'the original
complaint, with the exception that it alleges that Tempesta
received a notice of right to sue letter from the MHRC on
December 20, 2016. The court (Stokes, J.) held a status
conference with counsel for the parties on April 5, 2017.
Following that conference, the court issued an order denying
the Town's motion to dismiss on the basis that it
appeared to the court that dismissal of Counts I, II and V
was premature without "[d]iscovery and further
clarification of the facts." Subsequently, on May 9,
2017, the court issued an order specifying the future course
of proceedings. Thereafter, the parties pursued discovery.
April 19, 2018, the parties filed a stipulation of dismissal
of Count I (Rule 80B appeal). On October 31, 2018, the Town
moved for summary judgment on Counts II and V of the First
Amended Complaint. Tempesta opposed the motion. Oral argument
was held on April 25, 2019.
following undisputed material facts are based on the summary
Town initially appointed Tempesta as its CEO/Plumbing
Inspector/Health Officer in April 2012. The "certificate
of appointment" dated April 3, 2012, contained the
following language: "Your term of office is to expire on
March 31, 2013." Tempesta was appointed again to the
same positions on March 11, 2013, and that certificate of
appointment provided that his term of office would expire on
March 31, 2014. Likewise, in March 2014, Tempesta was
appointed again with an explicit expiration date of March 15,
2015. Finally, in March 2015, the municipal officers of the
Town appointed Tempesta to the same positions with an
expiration date of March 15, 2016.
does not dispute that each of his certificates of appointment
expressly provided that his term of office would expire on a
specified date, the last one being March 15, 2016.
Nevertheless, he contends that "[e]ven though his
appointment as CEO was technically for a one-year term, no
one told [him] when he was hired that, after a year, he would
be let go instead of reappointed, " and he expected
"that he would remain employed as long as he was doing
his job." (PASMF, ¶¶ 1 & 3).
about March 8, 2016, Tempesta was notified by a Town official
that he would not be appointed again when his term of office
expired on March 15, 2016. The parties disagree as to what,
precisely, was said to Tempesta as to the reason the Town
would not continue to appoint him as CEO, but they do not
disagree that he was told that no new appointment would be
letter dated March 25, 2016, counsel for Tempesta wrote to
the Town alleging that it had engaged in age discrimination.
Moreover, the letter asserted that Tempesta "had a
reasonable expectation that his employment with the Town
would continue." (PASMF, Exh. 5). Tempesta gave notice
that he was appealing "any decision not to reappoint
him, " and he requested that he continue to serve as the
Town's CEO and that the "purported termination of
his appointment be rescinded immediately."
parties agree that the Town's Personnel Policy contains
and provides for a Grievance Procedure (Article XIII), that
generally requires the filing of a written grievance with 5
working days of the "incident." They further agree
that Tempesta did not file a written grievance, but they
disagree as to whether the grievance procedure applied to
Tempesta because, as he alleges, he was never provided with a
copy of the personnel policy. Moreover, the parties disagree
as to whether Tempesta orally requested the opportunity to be
heard on the decision not appoint him as CEO.
is no evidence in the summary judgment record that the Town
made written findings of fact or otherwise set forth in the
record the basis for its decision not to appoint Tempesta to
a new term of office as CEO.
function of a summary judgment is to permit a court, prior to
trial, to determine whether there exists a triable issue of
fact or whether the question[s] before the court [are]
solely...of law." Bouchard v. American
Orthodontics,661 A.2d 1143, 44 (Me. 1995). 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); see also Levine v.
R.B.K. Caly Corp.,2001 ME 77, ¶ 4, 770 A.2d 653. A
"material fact" is one that can affect the outcome
of the case, and a genuine issue exists when there is