SUSAN HAMILTON v. DRUMMOND WOODSUM et al.
Cum-18-519
MAINE SUPREME JUDICIAL COURT
January 21, 2020
2020 ME 8
ALEXANDER, J.
Decision: 2020 ME 8
Argued: November 5, 2019
Reporter of Decisions
ALEXANDER, J.
[¶1] This appeal presents two issues for decision: (1) is a report of a neutral investigator, retained to provide a report to a governmental entity in a specific personnel matter, petitioning activity pursuant to
* Chief Justice Saufley sat at oral argument and participated in the Court‘s initial conference regarding this opinion immediately follоwing that oral argument, but did not participate further in the consideration or drafting of this opinion.
[¶2] The law firm of Drummond Woodsum and its nonattorney employee, Ann Chapman (collectively, DW), appeal from the denial of their motion to dismiss a defamation complaint filed by Susan Hamilton, which was entered by the Superior Court (Cumberland County, Warren, J.).2
[¶3] Because the appeal is from a denial of a motion to dismiss, no evidence has been presented. Accordingly, we accept Hamilton‘s pleadings as true and accurate and draw the case history from her second amended complaint. See Lalonde v. Cent. Me. Med. Ctr., 2017 ME 22, ¶ 11, 155 A.3d 426.
[¶4] From 2005 to 2009, the University of Southern Maine (USM) employed Susan Hamilton as the interim director for USM‘s Multi-Cultural Student Affairs (MSA). In 2009, Hamilton became the full-time coordinator of the MSA.
[¶5] In 2015, a USM student began an internship in Hamilton‘s program. Sometime after that, another student made a complaint alleging that Hamilton had entered the student government office in October of 2015 and questioned students there about a particular incident on campus. Following the complaint, USM‘s dean of students met with the student intern to discuss what she observed while working with Hamilton, and she coerced the intern into preparing a written statement about Hamilton. USM initiated a formal investigation, retaining Chapman, a nonattorney policy consultant for Drummond Woodsum, to serve as investigator. USM had frequently retained Chapman to conduct invеstigations.
[¶6] Chapman presented an investigative report to USM, which concluded that Hamilton “engaged in both discriminatory (race and gender) and non-discriminatory harassment (Student Government) as articulated in USM polices [sic] and procedure.” The report concluded that “Ms. Hamilton‘s statements have created a hostile environment fоr [the intern] and for other (not all) students and employees.”3
[¶7] On February 28, 2016, USM‘s office of equity and compliance forwarded a copy of Chapman‘s report to USM‘s vice president for enrollment management. The next day, USM provided a copy of Chapman‘s report to Hamilton. On March 18, 2016, USM‘s vice president for enrollment management sent a letter to Hamilton indicating that she accepted the report‘s finding of harassment and discrimination.
[¶8] On April 4, 2016, Hamilton appealed the vice president‘s decision to USM‘s director of equal opportunity. The director rejected the report‘s findings of gender-based discrimination but accepted the report‘s finding of “a hostile work environment based upon race.” The director then sent the report to USM‘s president. On April 27, 2016, USM‘s president sent a letter to Hamilton, partially affirming the report and stating that “[t]here are reasonable grounds to believe you violated the University‘s harassment policy and created a hostile environment on the basis of race.” On May 31, 2016, USM terminated Hamilton‘s employment.
[¶9] On June 15, 2016, Hamilton filed a grievance regarding her termination and served a notice of claim as required by
[¶10] On May 27, 2017, Hamilton filed suit in the United States District Court for the District of Maine against USM, its president, and its office of equity and compliance for alleged violations of her substаntive and procedural due process rights, First Amendment retaliation, and breach of contract. Hamilton v. Univ. of Me. Sys. et al., No. 2:17-cv-00191-GZS. On April 3, 2018, the parties settled the federal lawsuit.4
[¶11] On February 28, 2018, Hamilton filed an initial complaint in the Maine Superior Court against DW.5 Ultimately, by second amended complaint, Hamilton asserted the following four counts: (1) defamation, (2) slander or libel per sе, (3) tortious interference with an advantageous economic relationship, and (4) negligence.
[¶12] On June 12, 2018, DW filed (1) a special motion to dismiss pursuant to the anti-SLAPP statute,
[¶13] By its order of November 20, 2018, the court (1) granted DW‘s motion to dismiss Count 1 (defamation), Count 2 (slander or libel per se), and Count 3 (tortious interference with an advantageous economic relationship) of the second amended complaint, concluding that those counts were filed out of time pursuant to the applicable statute of limitations,
[¶14] The court‘s ruling left pending only Count 4, Hamilton‘s claim that DW was negligent in preparing and presenting the report. DW appealed from the court‘s ruling. No cross-appeal was filed. Therefore, the only issues before us are whether the trial court erred in denying the motion to dismiss regarding Count 4 based on the immunities asserted to be provided by the anti-SLAPP law or the MTCA.
II. LEGAL ANALYSIS
A. Anti-SLAPP Statute
[¶15] The anti-SLAPP statute provides, “When a moving party asserts that the civil claims . . . against the moving party are based on the moving party‘s exercise of the moving party‘s right of petition under the Constitution of the United States or the Constitution of Maine, the moving party may bring a special motion to dismiss.”
[¶17] The anti-SLAPP statute serves to shield private citizens from frivolous lawsuits meant to stifle their right to petition the government. See Borough of Duryea v. Guarnieri, 564 U.S. 379, 388 (2011) (“The right to petition allows citizens to express their ideas, hopes, and concerns to their govеrnment and their elected representatives . . . .“); Hearts with Haiti, Inc. v. Kendrick, 2019 ME 26, ¶ 14, 202 A.3d 1189 (“The purpose of the anti-SLAPP statute is to protect against meritless claims brought to delay, distract, and punish activists for speaking out.“) (emphasis omitted)).
[¶18] Because the trial court accurately and correctly determined that the investigative report at issue in this appeal did not cоnstitute petitioning activity within the meaning of the anti-SLAPP statute, we need not reach the additional steps of the anti-SLAPP analysis. The trial court properly denied DW‘s special motion to dismiss pursuant to
B. Maine Tort Claims Act
[¶19] The MTCA provides that, “[n]otwithstanding any liability that may have existed at common law, employees of governmental entities shall be absolutely immune from pеrsonal civil liability” for performing or failing to perform discretionary functions within the scope of employment.
[¶20] The question оf whether a person is an employee for purposes of the MTCA is “predominantly a question of law.” Id. ¶ 15. Although we have characterized the definition of “[e]mployee” in section 8102(1) as “broad,” id. ¶ 16, we have determined that it does not include a person or other legal entity acting in the capacity of an independent contractor under contract to the governmental entity, and we have applied a series of common-law distinctions between employees and independent contractors in analyzing each case, id. ¶ 17.
[¶21] The trial court determined that “[w]hether Chapman qualifies as a governmental employee for purposes of the MTCA is a clоse question that cannot be decided on a motion to dismiss.” In the trial court‘s view, the pleadings did not resolve whether DW might instead have been acting as an independent contractor in doing the investigation and preparing the report. Accordingly, the court denied the motion to dismiss based on MTCA immunity.
[¶23] Hamilton‘s second amended complaint contains the following allegations:
- Chapman “was an employee and or agent of Drummond and at all times relevant acted within the scope of her employment with Drummond.”
- Chapman was retained by USM to act as a “neutral investigаtor.”
- “Chapman acted as an independent contractor while continuing to work as an employee for Drummond.”
- Chapman‘s investigation was conducted pursuant to “an agreement between Drummond and USM pursuant to which she billed USM for hours worked.”
- “Chapman and USM claim that Chapman served as an independent neutral investigator . . . . USM paid Chaрman for the work hours she billed for the investigation. USM did not deduct any taxes and treated Chapman as an independent contractor for tax purposes.”
- “Chapman did not perform a ‘neutral investigator.’ USM frequently used Chapman to conduct investigations. Chapman‘s bias thus obviously sided with USM. More significantly, throughout the investigation, Chapman covertly communicated with USM‘s human resources, administration and legal counsel regarding the course of the investigation and to try to uncover negative information about Hamilton‘s work history.”
- “Hamilton, as an employee of USM, was in the bargaining unit represented by the University of Maine Employee Professional Staff Association . . . . As a result, Hamilton was guaranteed thе protections of the collective bargaining agreement (‘CBA‘) providing that Hamilton could not be terminated without ‘just cause’ and entitled to the procedural due process rights set forth in the University of Maine Equal Opportunity Complaint Procedure.”
- “Chapman‘s investigation did not begin to comply with minimal due process requirements.”
- “After her interviews with Chаpman, Hamilton could see that Chapman and USM were acting in tandem to build a case to terminate her.”
- “After Chapman completed her investigation, she prepared a Draft investigative Report. Despite Chapman allegedly serving an ‘independent investigator,’ Chapman and USM worked together to review and finalize the Repоrt.”
[¶24] As these allegations demonstrate, Hamilton is and was asserting that DW was retained by USM to perform a neutral investigation pursuant to the collective bargaining agreement referenced in the complaint. Hamilton contends that all of DW‘s actions were undertaken on behalf of USM.
[¶26] We have also extended MTCA immunity protection to a private individual acting as a guardian ad litem in a judicial proceeding, Kennedy v. State, 1999 ME 85, ¶¶ 9, 12, 730 A.2d 1252 (stating that a guardian ad litem еssentially functions as the court‘s investigative agent, not strictly as legal counsel to a child client), and a private attorney acting as a municipality‘s attorney, Preti, Flaherty, Beliveau & Pachios v. Ayotte, 606 A.2d 780, 782 (Me. 1992) (“Ayotte‘s designation as an independent contractor in the city‘s administrative code does not change his status for the purpose of the Tort Claims Act . . . . Ayotte was ‘a persоn acting on behalf of [a] governmental entity in [an] official capacity.‘“).
[¶27] Most recently, in Day‘s Auto Body, 2016 ME 121, ¶ 19, 145 A.3d 1030, we held that a private construction company gained MTCA immunity protection because it “was a government employee when, at the direction of the Town, it responded to the fire and used its excavator as directed by the Town in the Town‘s attempt to minimize the damage.”
[¶28] As Hamilton alleged, and despite the use of the word “neutral,” DW‘s actions were controlled and directed by USM to a greater extent than the guardian ad litem‘s investigations in Kennedy or the examining and reporting private physicians in the involuntary commitment cases discussed above. Hamilton‘s complaint establishes that DW was hired to perform a governmental function on behalf of a governmental entity consistent with that governmental entity‘s contractual and legal obligations. We therefore conclude that, in performing the investigation, DW was acting as a governmental employee entitled to MTCA immunity pursuant to
[¶29] Because DW was performing a governmental function on behalf of a governmental entity, here, USM, the trial court erred in denying the motion to dismiss based on MTCA immunity.
The entry is:
Order on special motion to dismiss on anti-SLAPP statute grounds affirmed. Order on motion to dismiss on MTCA grounds vacated. Remanded with instructions to dismiss Count 4.
Russell B. Pierce, Jr., Esq. (orally), Norman, Hanson & DeTroy, LLC, Portland, for apрellants Drummond Woodsum and Ann Chapman
Guy D. Loranger, Esq. (orally), Law Office of Guy D. Loranger, P.A., Old Orchard Beach, for appellee Susan Hamilton
Cumberland County Superior Court docket number CV-2018-88
FOR CLERK REFERENCE ONLY