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Tempesta v. Town of Benton

Superior Court of Maine, Kennebec

July 30, 2019



          William R. Stokes Justice.


         Before 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.

         Tempesta 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).

         On or 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.

         In an 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."

         On 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.

         On 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.

         The following undisputed material facts are based on the summary judgment record.


         The 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.

         Tempesta 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).

         On or 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 made.

         In a 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." (Id).

         The 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.

         There 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.


         "The 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 sufficient ...

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