Defendants RE LUu ;,iirzi~ k.2 d ,r I;"d- ye$
This matter comes before the Court on Defendants' motion for summary
judgment on all counts of the complaint pursuant to M.R. Civ. P. 56(c) and
motion to strike Plaintiff's affidavit.
BACKGROUND
Plaintiff Matthew Morgan ("Morgan") is a former firefighter and
paramedic with the City of Portland. Morgan first worked for the City as a
police officer from 1990 to November 2000, when he transferred to the fire
department, where he worked as a paramedic. Defendant John Kooistra
("Kooistra") is a paramedic with the City of Portland Fire Department, where
Defendant Terry Walsh ("Walsh") also works as Deputy Chief. Defendant City
of Portland ("the City") is a Maine Municipal Corporation.
Morgan alleges that, during his employment with the fire department,
Walsh defamed h m . In February 2004, a female paramedic named Heather
Carleton informed Walsh that she did not want to work with Morgan because he made her uncomfortable by allegedly ogling her.' Walsh talked to the Fire Chief
and the City's Director of Human Resources about how to address this and was
told to begin an investigation because the Director was going on vacation. Before
this complaint, two female employees of Maine Medical Center allegedly had
approached Walsh to complain about Morgan's behavior, but because they did
not officially complain, VValsh did nothing about those matters. He did,
however, inform Carleton that she was not the only person who had complained
about Morgan. After completing his review of what he termed a "sexual
harassment" complaint, Walsh recommended disciplinary action. Ultimately,
the Chief decided to reprimand Morgan, and notice of that would remain in his
file for ninety days. The union filed a grievance on Morgan's behalf, and during
a hearing, Walsh testified about the investigation and also stated that he
personally had seen Morgan give a female employee "elevator eyes."
Morgan also worked with Kooistra for several years. The two had been
friendly and socialized together. On one evening in 2002, a friend of Kooistra's
named Heather Wood Dunn told hrn that Morgan had taken her home from a
bar when she was intoxicated and they had unprotected sex. She felt that
Morgan took advantage of her intoxicated state. In addition, Kooistra's then-
girlfriend, Michelle Labbe Plazeslu, told Kooistra that Morgan also took her
home from a bar one night when she was too intoxicated to drive, and they
lussed. Morgan denies that anything happened and claims that he resisted her
advances. Kooistra felt that Plazeslu insinuated that Morgan attempted to
sexually assault her. Kooistra repeated these allegations to co-workers and to
1 The term the parties use for this is "elevator eyes," that is, looking Carleton u p and down. She felt as if he were "undressing her with his eyes" and looking at her backside when she was bending over. other women, including Kathie Grant, Marni Bickford, and Tiffany Bombard, in
an apparent attempt to warn them about Morgan. Morgan claims that Kooistra
told these women that Morgan forced hmself on other women, that he was
dangerous, and that they should be careful around him. The women have
testified in their depositions that they got the impression from Kooistra that
Morgan had sexually assaulted women, or at least behaved inappropriately.
In terms of damages, Morgan states that these various comments made by
Walsh and Kooistra have resulted in a reprimand and a brief suspension with
pay while the investigation was conducted. He was also transferred to an engine
with less patient contact, although Defendants contend that he chose to be
tran~ferred.~ Additionally, Morgan believes that these statements, as well as the
investigation of the Carleton complaint, diminished his reputation in the
professional community. He voluntarily resigned from the fire department in
July 2006 and is now a medical student at the University of New England.
In February 2006, Morgan filed this complaint, alleging defamation
against Kooistra and the City (Count I), tortious interference with contractual
relations against Kooistra and the City (Count 11), punitive damages against
Kooistra and the City (Count 111), defamation against Walsh and the City (Count
IV), and punitive damages against Walsh and the City (Count V). The
Defendants responded with a number of affirmative defenses, including the
truth of the statements, immunity under the Maine Tort Claims Act, and failure
to state a claim upon which relief could be g r a t ~ t e d .Defendants ~ now move for
2 Morgan also was not promoted during his tenure with the fire department; however, he did not take the test required to be eligible for promotion. Defendants also contend that the \Yorkerrs Compensation Act covers personal injuries, and therefore those claims Morgan raises are barred; llowever, "econornic or reputational injuries, if summary judgment, arguing that they are entitled to judgment as a matter of law
because the statements were true, were not defamatory, and protected by
privilege and/or discretionary function immunity. Morgan contends that
genuine issues of material fact remain in contention, and that the statements
were false and defamatory.
DISCUSSION
1. Summarv Tudgment Standard.
Summary judgment is proper where there exist no genuine issues of
material fact such that the moving party is entitled to judgment as a matter of
law. M.R. Civ. P. 56(c); see also Levirle v. R.B.K. Caly Corp., 2001 ME 77, ¶ 4, 770
A.2d 653,655. A genuine issue is raised "when sufficient evidence requires a
fact-finder to choose between competing versions of the truth at trial." Parrish v.
Wriglrt, 2003 ME 90, ql 8, 828 A.2d 778, 781. A material fact is a fact that has "the
potential to affect the outcome of the suit." Burdzel v. Sobus, 2000 ME 84, ¶ 6, 750
A.2d 573,575. "If material facts are disputed, the dispute must be resolved
through fact-finding." Ctrrtis v. Porter, 2001 ME 158, ¶ 7, 784 A.2d 18/22. When
a defendant seeks summary judgment, a "plaintiff must establish a prima facie
case for each element of her cause of action." Clzn~tzpagrrev. Mid-Maine Med. Ctr.,
1998 ME 87, 7 9, 711 A.2d 842,845. At this stage, the facts are reviewed "in the
light most favorable to the nonmoving party." Lightfoot v. Sch. Adtnia. Dist. No.
35,2003 ME 24, ql 6, 816 A.2d 63, 65.
2. Is Summarv Tudgment Warranted on the Defamation Claim?
'To prevail on a defamation claim, a plaintiff must establish:
any, do not constitute personal injuries." Cole v. Cl~nrzdler,2000 M E 104, ¶ 13, 752 A.2d 1189,1196. Thus, the Act does not preclude Morgan from recovering in tort.
4 (a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting to at least negligence on the part of the publisher; and (d) either action ability of the statement irrespective of special harm or the existence of special harm caused by the publication.
Rice u.Alley, 2002 ME 43, ¶ 19, 791 A.2d 932, 936 (quoting Lester v.Powers, 596
A.2d 65, 69 (Me. 1991)).
Even if a speaker publishes defamatory statements, however, he or she
may not face liability for those statements if the publication is "conditionally
privileged" and "the privilege is not abused." Restateineizt (Second) of Torts €593 j
(1977). The circumstances of publication govern whether a conditional privilege
applies, but it usually will attach where "an important interest of the recipient
will be furthered by frank communication." Rice, 2002 ME qI 22, 791 A.2d at 936
(citations omitted). A speaker who is otherwise entitled to a conditional
privilege may lose it if he or she knows that the information is false or acts with
"reckless disregard as to its truth or falsity." Xestatenzent (Second) of Torts § 600.
Whether a speaker is entitled to a privilege is a legal question. Cole u.Chandler,
2000 VIE 104, 71 6,752 A.2d 1189, 1193. Whether the privilege was abused is a
factual issue. Id. 41 7, 752 A.2d at 1194.
In addition, government employees are entitled to immunity under the
MTCA for "performing or failing to perform a discretionary function or duty,
whether or not the discretion is abused." 14 M.R.S. § 8104-B(3)(2005). To
determine whether an act is a discretionary function, the Law Court employs a
four-factor test: (1)whether the act "involve[s] a basic governmental policy,
program, or objective; (2) whether the act was "essential to the realization" of the
policy; (3)whether it demanded "the exercise of basic policy evaluation, judgment, and expertise;" and (4) whether the agency had legal "authority and
of Standish, 687 A.2d 238, 240 (Me. 1996) (citing duty" to act. Adriance u.TOZU~Z
Darling u.Atigtista Mental Health Inst., 535 A.2d 421, 426 (Me. 1987)).
a. Defamation Claim Against Walsh.
Morgan concedes that in a situation such as this, a conditional privilege
normally would apply to Walsh's statements; however, he contends that it
should not apply because Walsh acted either knowing that the statements were
false or with reckless disregard of their truth. Morgan argues that Walsh
defamed him by telling Carleton there were other women complaining about
him, and by stating that he had seen Morgan act inappropriately around women,
including giving them "elevator eyes."
Conditional Privilene
Walsh, however, was acting within the scope of his employment when he
relayed Carleton's comments about Morgan w h l e speahng with his supervisor
to determine how to handle the complaint. Then, at the direction of his
supervisor, he investigated the matter and issued a report. Walsh is entitled to a
conditional privilege for his statements because he was conducting an
investigation, as he was instructed to do. Even if Morgan is correct that Walsh
erroneously reported some details in his report, error does not remove the
conditional privilege.
The inquiry, however, does not end here. Carleton herself testified in her
deposition that she did not recall making all of the statements that Walsh
attributed to her, such as that Morgan made offensive body gestures to her. She
also stated that she did not characterize Morgan's behavior as sexual harassment,
and did not state that it happened on duty. Additionally, Walsh cannot locate Carleton's initial statement. Viewing the matter in the light most favorable to the
plaintiff, Walsh may have inaccurately recorded or transmitted Carleton's
statements, which he published to the Chief and at the later hearing. Moreover,
Morgan alleges that Walsh told Carleton that he had received other complaints
against Morgan, which was not necessary to h s performance of his duties as
Deputy Chief. This generates a genuine issue of material fact as to whether the
privilege was abused.
The fact finder will have to determine whether the statements were true or
false, and whether Walsh acted recklessly. If not, his privilege would sheld him
from liability for those statements. But, if a jury determines that he did act
recklessly, the privilege would not apply to those statements.
Discretionarv Function Immunihr
Turning to immunity, Walsh cannot meet the four-factor test for a
discretionary function set forth in Adrimzce. Although Morgan concedes in h s
deposition that Walsh had a responsibility to investigate this claim, it was not
typically Walsh's responsibility to do that. EIe only conducted an investigation
because the Human Resources Director was on vacation at the time. Walsh was
acting within the scope of h s employment when he testified in the union appeal
that he personally had seen Morgan behave inappropriately toward women, but
this too does not rise to the level of a discretionary function, and Walsh is not
entitled to immunity on that basis. As there are genuine issues of material fact
with respect to the truth or falsity of Walsh's statements, and with regard to
whether he acted recklessly and lost the privilege, summary judgment for Walsh
is denied. b. Defamation Claim Against Kooistra.
Kooistra also argues that he is entitled to a conditional privilege and/or
immunity for statements he made about Morgan. Morgan alleges that the
statements were made in the course of Kooistra's employment, and Kooistra
agrees with that contcntion. Making comments to colleagues, however, does not
bring Kooistra's statcments about Morgan within the scope of employment.
There was no supervisory relationship between Kooistra and Morgan, and no
other evidence that would support a finding that these comments were
employment-related. Indeed, Kooistra admits that his motivation in m a h n g the
comments was concern about his female friends and co-workers.
As no privilege or immunity applies, this Court will assess the merits of
Morgan's claim for defamation as it pertains to Kooistra's statements. Morgan
contends that Kooistra defamcd h m by telling their co-workers that he had
sexually assaulted women, or at least engaged in sexually inappropriate
behavior. Specifically, he claims that Kooistra told others that Morgan forced
himself on Michelle Labbe Plazeski and Heather Wood Dunn. He also
apparently told people that Michellc Plazeslu "felt threatened" by Morgan.
These statements, viewed in the light most favorable to Morgan, are capable of
conveying a defamatory meaning because some evidence supports h s
contention that they were not entirely accurate. Also, unprivileged publications
to third parties occurred, and some evidcnce indicates that the statements were
negligently made, as the women who heard them described several different
versions of them. Lastly, Defendants concede for purposes of this motion that
Morgan need not prove special harm because the comments, if defamatory, would be defamatory per se." The primary genuine issue of material fact for the
jury will be whether the statements actually were false and defamatory.
Summary judgment is therefore denied as to Kooistra.
3. Is Defendant C i k of Portland Entitled to Immunihr under the Maine Tort Claims Act?
Next, this Court must determine whether the City has immunity pursuant
to the Maine Tort Claims Act. The City argues that it cannot be held responsible
for the alleged acts of its employees in this case and is therefore entitled to
summary judgment on the defamation claims. Morgan contends that Kooistra
and Walsh made their allegedly defamatory comments while worlung and that
the City faces liability on a respondeat superior theory.
The MTCA provides that governmental entities typically are immune
from liability for the intentional torts of their employees. 14 M.R.S. § 8103(1)
(2005). Although governmental enzployees face liability for their intentional torts,
"immunity is the rule and liability the exception for governmental entities." Carroll
v.City of Portlnnd, 1999 ME 131, q[ 6 n.3, 736 A.2d 279, 282. Here, Morgan concedes that the City is not liable for the wrongful actions
of its employees who are not acting within the scope of their employment. Thus,
the City may not be held responsible for Kooistra's allegedly defamatory
statements. Though he was working when he made some of the statements, he
was not acting within the scope of his employment by making them, and he was
not entitled to any employment-related privilege.5 With respect to Walsh,
viewing the matter in the light most favorable to Morgan, Walsh did make h s
'' "Slander per st: refers to words that on their face without further proof or explanation injure the plaintiff in his business or occupdtion." Rn~tlirezv. Rogers, 540 A.2d 475,478 (Me. 1988). Given the nature of the injury, a "plairitiff rnay recover without proof of special damage." Id. The City also correctly points out that it cannot face punitive damages. See 14 M.R.S. § 8105(5). statements in the course of his employment with the fire department. Although
abuse of privilege is debatable, Walsh's statements are conditionally privileged
at this point and the City will not be liable for them. Summary judgment is
granted for the City.
4. Are Defendants Entitled to Summary Tudgment on Mornan's Claim for Tortious Interference With Contractual or Other Advantageous Economic Relations?
Lastly, Defendants have moved for summary judgment on Morgan's
claim for tortious interference with cor~tractualor other advantageous economic
relations. Morgan concedes that Defendants are entitled to summary judgment
on this count of the complaint, and summary judgment is therefore granted in
favor of Kooistra and the City on this issue.
5. Defendants' Motion to Strike Morgan's Affidavit.
Defendants also move to strike certain testimony from Morgan's affidavit
because the affidavit differs from his prior testimony. See Zip Lube, Tnc. v. Coastal
Savings Barzk, 1998 ME 81, ¶ 10,709 A.2d 733,735 (holding that a litigant may not
generate a genuine issue of material fact by providing an affidavit that
contradicts his prior testimony).
Here, Defendants contend that Morgan has attempted to generate a
genuine issue of material fact by changing the testimony that he gave at h s
earlier deposition. Specifically, he stated at h s deposition that he could not
recall having met Heather Wood Dunn. Morgan contends that his testimony has
not changed, but that his recollection merely has been refreshed since the
deposition. Now he does remember meeting Dunn, but still maintains that he did not go home with her from a bar. Because that substantive portion of h s
testimony remains the same, the affidavit will not be stricken.
The entry is:
Defendants' motion to strike affidavit is DENIED. Defendants' motion for summary judgment on the claim for tortious interference is GRANTED. Defendants' motion for summary judgment on claims against the City of Portland is GRANTED. Defendants' motion is DENIED as to Kooistra and Walsh on all other counts.
The clerk shall incorporate this Order into the doc pursuant to M.R. Civ. P. 79(a).
DATE: IF COUPTS and County 30x 287 ine 041 12-0287
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