Daniel R. Lawson v. Debby Willis , 2019 ME 36 ( 2019 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 36Docket: Ken-18-318
Submitted
On Briefs: February 20, 2019
Decided: March 7, 2019
Panel: ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.
DANIEL R. LAWSON
v.
DEBBY WILLIS
PER CURIAM
[¶1] Daniel R. Lawson appeals from a judgment of the Superior Court
(Kennebec County, Murphy, J.) dismissing his defamation action against his
former supervisor, Debby Willis, for failure to state a claim pursuant to
M.R. Civ. P. 12(b)(6). Lawson contends that the court erred in its determination
that Willis was immune from liability pursuant to the Maine Tort Claims Act,
14 M.R.S. § 8111(1)(C) (2018). We affirm the judgment.
I. CASE HISTORY
[¶2] Lawson alleges the following facts in his complaint, which we view
as admitted for the purposes of this appeal. Ramsey v. Baxter Title Co.,
2012 ME 113, ¶ 2, 54 A.3d 710.
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[¶3] In September 2016, Lawson began working as an assistant attorney
general in the Child Support Enforcement Division of the Maine Attorney
General’s Office. Debby Willis was the chief of the Child Support Enforcement
Division and Lawson’s direct supervisor. For the first six months of his
employment, Lawson received generally positive feedback from Willis, who
indicated in a February 2017 meeting with him that she was satisfied with his
work performance based on her review of his written work and from speaking
with people who had observed him in court.
[¶4] Shortly after that meeting, Lawson responded to a colleague’s email
thread regarding the interpretation of a statute with an opinion that was
contrary to the opinion that Willis had already expressed. Willis told Lawson
that this bothered her and reprimanded him for sending the email. Lawson
alleges that following this reprimand Willis began providing extremely
negative feedback about his job performance even though it had not worsened.
Lawson also alleges that Willis wrote a memo that falsely claimed that he had
been ordered by a court to serve a party and had refused to do so.
[¶5] On June 5, 2017, Willis informed Lawson that the Attorney General
was terminating his employment based on her recommendation. Willis
provided Lawson with a memo regarding her assessment of his job
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performance in which Lawson alleges that she stated, without basis, that he had
been rude and arrogant during his court appearances. As a result of Willis’s
statements and his resulting termination, Lawson was forced to take a lower
paying job and has suffered damage to his previously unblemished professional
reputation.
[¶6] Lawson commenced this action in November 2017. In his
complaint, he asserted claims against Willis for libel per se and slander per se.
Willis filed a motion to dismiss in which she argued, pursuant to M.R. Civ. P.
12(b)(6), that Lawson’s complaint failed to state a claim upon which relief may
be granted because his claims against her were barred by the discretionary
function immunity provision of the Maine Tort Claims Act, 14 M.R.S.
§ 8111(1)(C). After a hearing, the court determined that Lawson’s claims were
barred by discretionary function immunity and granted Willis’s motion to
dismiss. Lawson timely appealed. See M.R. App. P. 2B(c)(1).
II. LEGAL ANALYSIS
A. Discretionary Function Immunity
[¶7] Lawson concedes that Willis’s act of recommending his termination
to the Attorney General qualifies as a discretionary function, but he argues that
her communications to the Attorney General regarding his job performance
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were separate acts that required no discretion—they were either accurate or
inaccurate—and, as such, his defamation claims are not barred by discretionary
function immunity. “We review the court’s grant of a motion to dismiss de novo
for errors of law.” Hathaway v. City of Portland, 2004 ME 47, ¶ 9, 845 A.2d 1168.
[¶8] Title 14 M.R.S. § 8111(1) of the Maine Tort Claims Act grants
immunity from liability to governmental employees who are performing
discretionary functions:
Notwithstanding any liability that may have existed at common
law, employees of governmental entities shall be absolutely
immune from personal civil liability for the following:
. . . .
C. Performing or failing to perform any discretionary
function or duty, whether or not the discretion is abused; and
whether or not any statute, charter, ordinance, order,
resolution, rule or resolve under which the discretionary
function or duty is performed is valid;
. . . .
The absolute immunity provided by paragraph C shall be
applicable whenever a discretionary act is reasonably
encompassed by the duties of the governmental employee in
question . . . .
Governmental entities are likewise immune from liability for discretionary
functions. See 14 M.R.S. § 8104-B(3) (2018).
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[¶9] We utilize a four-factor test to determine whether discretionary
function 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?
Darling v. Augusta Mental Health Inst., 535 A.2d 421, 426 (Me. 1987).
[¶10] “The first, second, and fourth factors help determine whether the
governmental employee was performing or failing to perform an official
function or duty,” while “[t]he third factor helps determine whether that
function or duty was discretionary in nature, as opposed to merely ministerial.”
Carroll v. City of Portland, 1999 ME 131, ¶ 7, 736 A.2d 279. “A discretionary act
requires judgment or choice, whereas a ministerial act is mandatory and
requires no personal judgment or choice.” Id. ¶ 9 (emphasis omitted). A
governmental employee “is not entitled to discretionary function immunity
unless [her] allegedly tortious activity required the exercise of judgment or
choice.” Id.
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[¶11] Lawson argues that under this test, the defamatory statements he
alleges that Willis made cannot be classified as discretionary.1 He maintains
that “reporting an employee’s work activity does not involve, nor is it essential
to, a basic governmental policy[,] program[,] or objective. Nor does it require
the exercise [of] the kind of judgment that characterizes discretionary acts.” He
argues that Willis’s reports of his job performance were ministerial in nature,
similar to the acts at issue in Carroll. In that case, we held that a defendant
police officer was not performing a discretionary act when he mistakenly listed
the plaintiff as being wanted for theft—and was therefore not immune from the
plaintiff’s defamation claims—because he failed to refute the plaintiff’s claim
that “the challenged activity merely involved copying a list of names in
alphabetical order.” Id. ¶¶ 2-3, 10.
[¶12] Lawson’s arguments oversimplify the evaluation and reporting of
an employee’s work performance and the degree of personal choice and
judgment utilized in the process. His situation is analogous to that of the
plaintiff in Quintal v. City of Hallowell, 2008 ME 155, ¶¶ 33-36, 956 A.2d 88. In
1 Lawson also cites to cases from other states involving governmental immunity . In addition to
the fact that the cases are not binding on us, each is distinguishable from the present case and,
therefore, is not persuasive.
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that case, we held that a city manager was immune from the claims of a
terminated code enforcement officer because
(1) it is the municipal government’s objective to have employees
that properly and efficiently perform the tasks assigned to them;
(2) reprimanding an employee and recommending his termination
is essential to effectuate that objective; (3) determining whether an
employee is properly and efficiently discharging his duties requires,
at least in part, the exercise of judgment; and (4) the City Manager
is the appropriate person to make recommendations regarding the
Code Enforcement Officer’s job performance. [The City Manager]’s
actions were within his discretion, and even if he abused that
discretion, immunity still applies to those actions. 14 M.R.S.
§ 8111(1)(C).
Id. ¶ 35 (emphasis added).
[¶13] Applying the Quintal analysis here leads to the same conclusion:
Willis’s reporting of her evaluation of Lawson’s job performance to the
Attorney General was a discretionary function to which immunity applies.
Furthermore, because Willis was performing a discretionary function, her
immunity was absolute, even if she abused her discretion or exercised it in bad
faith. See 14 M.R.S. § 8111(1)(C); Quintal, 2008 ME 155, ¶ 36, 956 A.2d 88;
Berard v. McKinnis, 1997 ME 186, ¶ 11 n.7, 699 A.2d 1148.
B. Motion to Dismiss
[¶14] Lawson also contends that, even if Willis’s statements to the
Attorney General are not actionable because of discretionary function
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immunity, his complaint alleges sufficient facts to overcome a motion to dismiss
pursuant to M.R. Civ. P. 12(b)(6). He argues that the language in his complaint
where he alleges that Willis published the statements “to third parties,
including the Attorney General” shows that he might be able to prove a claim
that is not barred by discretionary function immunity—such as if Willis
published the statements outside her role as his supervisor.
[¶15] “When we review an order dismissing a complaint, we consider
only the facts alleged in the complaint and examine the complaint in the light
most favorable to the plaintiff to determine whether it sets forth elements of a
cause of action or alleges facts that would entitle the plaintiff to relief pursuant
to some legal theory.” Argereow v. Weisberg, 2018 ME 140, ¶ 12, 195 A.3d 1210.
This process tests the legal sufficiency of the allegations in a complaint, rather
than the sufficiency of the evidence that a plaintiff is able to present. Id.[¶16] While we have held that a plaintiff’s failure to specifically allege
certain facts—such as the date of alleged publication—is not always fatal to a
defamation complaint, we have emphasized that a complaint must give the
defendant fair notice of the claims against her. Vahlsing Christina Corp. v.
Stanley, 487 A.2d 264, 267 (Me. 1985); see also Nadeau v. Frydrych,
2014 ME 154, ¶ 5, 108 A.3d 1254. Lawson’s complaint, read in its entirety,
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specifically alleges only defamation arising in contexts where his claims are
barred by discretionary function immunity. Even when examined in a light
most favorable to him, Lawson’s inclusive language alleging that Willis
published the statements “to third parties, including the Attorney General” is
simply too vague to give Willis fair notice of any claims that might fall outside
the scope of that immunity. Accordingly, the court’s granting of Willis’s motion
to dismiss was proper.
The entry is:
Judgment affirmed.
Daniel Lawson, appellant pro se
Janet T. Mills, Attorney General, and Kelly L. Morrell, Asst. Atty. Gen., Office of
the Attorney General, Augusta, for appellee Debby Willis
Kennebec County Superior Court docket number CV-2017-202
FOR CLERK REFERENCE ONLY