Pascoe v. Johnson Controls, Inc.

Maine Superior

Pascoe v. Johnson Controls, Inc.

Superior Court of Maine·Decided December 2, 2010·No. CUMcv-10-254·Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO: CV-10-254

F; A(. . \..\ ,"Y' ;oJ-'

MICHAEL R. PASCOE, ..

PI aintiff,

ORDER

v.

JOHNSON CONTROLS, INC., et al.,

Defendants

,.

;I

Plaintiff Michael Pascoe has filed suit against his fontler employer, Johnson Controls, Inc., and former coworkers Robert Bramlitt and Keith Marsico. His complaint alleges that Johnson Controls violated the Maine Human Rights Act and that all three defendants defamed him per se and through compelled self-publication. The defendants move to dismiss Counts IT (defamation per se) and ITI (defamation through compelled self-publication) due to Mr. Pascoe's a11eged failure to plead defamation with specificity. Mr. Pascoe responds with a motion to amend his complaint.

BACKGROUND

In 2001, Mr. Pascoe began working as an HVAC technician for York

International. (CompI. 9I 7.) Johnston Controls acquired York International in 2005, and Mr. Pascoe transitioned into Johnson Controls Portland Branch workforce in 2006. (Comp1. <JI9I 8-10.) Mr. Pascoe held the title of Mechanic

Journeyman and was assigned to Johnson's "Chiller Team." (CompI. 9110.) He .

was responsible for service work on large and small tonnage chillers. (Com pI.

9I 10.) Mr. Bramlitt was Mr. Pascoe's supervisor, and was based out of Johnson's Manchester, New Hampshire office. (Compl. ~ 12.)

At some point between 2006 and 2008, Mr. Pascoe requested that Johnson Controls hire another HVAC technician for the Chiller Team'because his extensive hours were taking a toll on his blood pressure and tendons. (Compl. C[( 13.) Johnson responded by hiring Mr. Marsico and a twenty-fiv~ year old named Alex Small. (Compl. 9I9I 14-15.) Mr. Small was assigned to be Mr. Pascoe's apprentice, and Mr. Bramlitt made it known that he wished to have Mr. Small take Mr. Pascoe's job. (Compl. 9I115-16.) From that time onward; Johnson Controls allegedly gave Mr. Small preferential treatment while simultaneously expressing a desire to remove Mr. Pascoe. (Compl. 9I9I 17-22.)

"On or about September 24, 2008, Johnson Controls t¢rminated [Mr.

I

Pascoe's1 employment ... [because] he had allegedly falsified timesheet records on a job for Verso paper." (Compl. <[ 23.) Mr. Pascoe also alleges that before, during, ,md after his termination the defendants "conveyed the false impression that [he1 acted dishonestly and with a lack of integrity in his employment with Johnson Controls." (Compl. err 24.)

Mr. Pascoe filed a charge of discrimination against Johnson Controls with the Maine J-hnnan Rights Commission and the Equal Employment Opportunity Commission on March 24,2009, and received a right-to-sue letter on March IS, 2010. (Compl. 9[c[( 26-27.) He filed this complaint in Superior Court on May 26, 2010, and the defendants filed their motions to dismiss shortly thereafter. I

I E,1Ch defendclllt has filed a separate motion to dismiss. Howevec each motion is identicaL c:md they will be discussed as one.

'DISCUSSION

When a plaintiff moves to amend the complaint in response to a motion to dismiss, the court rules on the amendment before acting on the dispositive motion. Sherbert v. Rellllllel, 2006 ME 116, err 8, 908 A.2d 622, 624. Leave to amend should "be freely given when justice so requires." M.R. Civ. P. 15(a); Sherbert, 2006 ME 116, <If 7, 908 A.2d at 624. There is no indication that Mr. Pascoe has been dilatory in bringing this amendment, or that it will unfairly'prejudice the defendants. The plaintiff's motion to amend is therefore granted.

"A motion to dismiss tests the legal sufficiency of the complaint." Heber 7).

Lucerue-in-Maine Village Corp., 2000 ME 137, err 7, 755 A.2d 1064, 1066 (quoting McAfee v. Cole, 637 A.2d 463,465 (Me. 1994)). "Most civil actions must meet the notice pleading requirements of M.R. Civ. P. 8," Beall v. Cllllllllings, 2008 ME 18, <Il 8, 939 A.2d 676, 679, which requires a "short and plain statement of the claim showing that the pleader is entitled to rehef ...." M.R. Civ. P. 8(a). The allegations need to give the defendant "fair notice" of the claim and the ground on which it rests, and demonstrate that the claimant has more than a speculative right to relief. Bell Atl. Corp. v. Twolllbly, 550 U.s. 544, 555 (2007) (quoting Conley v. Gillson, 355 U.s. 41, 47 (1957)); see Bean, 2008 ME 18, err 11, ~39 A.2d at 680 (finding that Rule 8(a) is "practically identical to the comparable federal ruleIT').

Truth is always a defense against charges of slander, and a "defendant is therefore enti tIed to know precisely what statement is attributed to him ...." Pimrn v. Brennan, 307 A.2d 833, 834-35 (Me. 1973). Traditionally, this "required that 'the vvords must be proved strictly as alleged.'" Td. at 835 (quoting Estes v.

Estes, 75 Me. 478, 481 (1883)). The 1902 case of Killllmll v. Page relaxed this •

requirernent, so that only the "material words, those essential to the charge

mllde, must be proved as alleged, but that some latitude mllY be allowed with respect" to the precise phrasing and context. Picard, 307 A.2d at 835 (citing Killiball v. Page, 96 Me. 487, 489, 52 A. 1010,1011 (1902)). For example, in Pimrd v. Brellllml, the complaint alleged that the defendant "made statements lin substance as follows:

(a) Th,lt Plaintiff had been guilty of short-weighting customers on sever,ll lXCll,si ons.

(b) Thclt PI<lintiff did not leave the employ of Wilson &: Co., Inc.

voluntarily but rather was fired ... because he hlld checlted customers .... '"

Jd. at 833-34. The Law Court identified the mllterial words as "because fie fwd clu?a/ed C/lstoJllers .... " Jd. llt 835.

The "materi<ll words" pleading standard fits comfortably within ,

requirements of notice plellding. A publication is slanderous or defam,ltory if a

"person of ordinllry intelligence" would understand it to be so, and its actionability is a question of law when the "language is plain and free from ambiguity ...." Pimrd, 307 A.2d at 835 (quoting CJwplIla/l v. Ga/l/lett, 132 Me. 389, 391,171 A. 397, 398 (1934)) (quotations omitted). The substance lllld language of the 'llleged st<ltcment is thus material to the defamation claim and must be averred as part of the plaintiff's prima facie case.

The question becomes whether Mr. Pascoe's amended complaint is sufficiently definite to survive the defendants' Rule 12(b)(6) motions to dismiss. Dismissal is <lpproprillte where the complaint fails to set "forth clements of a cause of llction or clllegell facts that would entitle the plaintiff~to reljd pursu<lnt to some legal theory." Benu, 2008 ME 18, 91 7, 939 A.2d at 679 (quoting Shaw v. S. Aroostook Ou/y. Sci/. Dis/., 683 A.2d 502,503 (l'vrc. 1996)) (quotations omitted). The clements of dcfam<ltion Me:

(a) a false eind defamatory statement concerning another;

(b) an unprivileged publication to a third party;

(c) fault amounting at least to negligence on the part of the publisher; <md

(d) ei ther actionabili ty of the statement irrespective of special harm or the existence of special harm caused by the publiCation.

Lester v. Powers, 596 A.2d 65, 69 (Me. 1991) (adopting Restatement (Second) of Torts § 558 (1977)).

The amended complaint identifies the following defamatory statements:

• " . .. Defendants and cigents of Defendant Johnson Controls, falsely informed Christine Spinale and other human resource personnel that Pascoe doctored and / or falsified his time cards for work done at the Verso job." (Amended Compi. ~] 24(21).)

• " . .. Defendants <:1nd <:1gents of Dcfend<:1nts ... sent an eJn<:1il to Carol Skotnicki ,md Christine Spin<:1le falsely <:1ccusing P<:1scoe of falsifying hours worked <:1t the Verso job ... ." (Amended Comp1. 1[ 2~(b).)

• " . .. Defendants <:1nd <:1gents of Defendants ... falsely rnfonncd employees of Johnson Controls ... that Pascoe was stealing, was a heir, llcld falsified his time cards, and/or was dishonest in his business de<:1lings with Verso ... ." (Amended Com pi. (Ir 24(c).)

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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO: CV-10-254

F; A(. . \..\ ,"Y' ;oJ-'

MICHAEL R. PASCOE, ..

PI aintiff,

ORDER

v.

JOHNSON CONTROLS, INC., et al.,

Defendants

,.

;I

Plaintiff Michael Pascoe has filed suit against his fontler employer, Johnson Controls, Inc., and former coworkers Robert Bramlitt and Keith Marsico. His complaint alleges that Johnson Controls violated the Maine Human Rights Act and that all three defendants defamed him per se and through compelled self-publication. The defendants move to dismiss Counts IT (defamation per se) and ITI (defamation through compelled self-publication) due to Mr. Pascoe's a11eged failure to plead defamation with specificity. Mr. Pascoe responds with a motion to amend his complaint.

BACKGROUND

In 2001, Mr. Pascoe began working as an HVAC technician for York

International. (CompI. 9I 7.) Johnston Controls acquired York International in 2005, and Mr. Pascoe transitioned into Johnson Controls Portland Branch workforce in 2006. (Comp1. <JI9I 8-10.) Mr. Pascoe held the title of Mechanic

Journeyman and was assigned to Johnson's "Chiller Team." (CompI. 9110.) He .

was responsible for service work on large and small tonnage chillers. (Com pI.

9I 10.) Mr. Bramlitt was Mr. Pascoe's supervisor, and was based out of Johnson's Manchester, New Hampshire office. (Compl. ~ 12.)

At some point between 2006 and 2008, Mr. Pascoe requested that Johnson Controls hire another HVAC technician for the Chiller Team'because his extensive hours were taking a toll on his blood pressure and tendons. (Compl. C[( 13.) Johnson responded by hiring Mr. Marsico and a twenty-fiv~ year old named Alex Small. (Compl. 9I9I 14-15.) Mr. Small was assigned to be Mr. Pascoe's apprentice, and Mr. Bramlitt made it known that he wished to have Mr. Small take Mr. Pascoe's job. (Compl. 9I115-16.) From that time onward; Johnson Controls allegedly gave Mr. Small preferential treatment while simultaneously expressing a desire to remove Mr. Pascoe. (Compl. 9I9I 17-22.)

"On or about September 24, 2008, Johnson Controls t¢rminated [Mr.

I

Pascoe's1 employment ... [because] he had allegedly falsified timesheet records on a job for Verso paper." (Compl. <[ 23.) Mr. Pascoe also alleges that before, during, ,md after his termination the defendants "conveyed the false impression that [he1 acted dishonestly and with a lack of integrity in his employment with Johnson Controls." (Compl. err 24.)

Mr. Pascoe filed a charge of discrimination against Johnson Controls with the Maine J-hnnan Rights Commission and the Equal Employment Opportunity Commission on March 24,2009, and received a right-to-sue letter on March IS, 2010. (Compl. 9[c[( 26-27.) He filed this complaint in Superior Court on May 26, 2010, and the defendants filed their motions to dismiss shortly thereafter. I

I E,1Ch defendclllt has filed a separate motion to dismiss. Howevec each motion is identicaL c:md they will be discussed as one.

'DISCUSSION

When a plaintiff moves to amend the complaint in response to a motion to dismiss, the court rules on the amendment before acting on the dispositive motion. Sherbert v. Rellllllel, 2006 ME 116, err 8, 908 A.2d 622, 624. Leave to amend should "be freely given when justice so requires." M.R. Civ. P. 15(a); Sherbert, 2006 ME 116, <If 7, 908 A.2d at 624. There is no indication that Mr. Pascoe has been dilatory in bringing this amendment, or that it will unfairly'prejudice the defendants. The plaintiff's motion to amend is therefore granted.

"A motion to dismiss tests the legal sufficiency of the complaint." Heber 7).

Lucerue-in-Maine Village Corp., 2000 ME 137, err 7, 755 A.2d 1064, 1066 (quoting McAfee v. Cole, 637 A.2d 463,465 (Me. 1994)). "Most civil actions must meet the notice pleading requirements of M.R. Civ. P. 8," Beall v. Cllllllllings, 2008 ME 18, <Il 8, 939 A.2d 676, 679, which requires a "short and plain statement of the claim showing that the pleader is entitled to rehef ...." M.R. Civ. P. 8(a). The allegations need to give the defendant "fair notice" of the claim and the ground on which it rests, and demonstrate that the claimant has more than a speculative right to relief. Bell Atl. Corp. v. Twolllbly, 550 U.s. 544, 555 (2007) (quoting Conley v. Gillson, 355 U.s. 41, 47 (1957)); see Bean, 2008 ME 18, err 11, ~39 A.2d at 680 (finding that Rule 8(a) is "practically identical to the comparable federal ruleIT').

Truth is always a defense against charges of slander, and a "defendant is therefore enti tIed to know precisely what statement is attributed to him ...." Pimrn v. Brennan, 307 A.2d 833, 834-35 (Me. 1973). Traditionally, this "required that 'the vvords must be proved strictly as alleged.'" Td. at 835 (quoting Estes v.

Estes, 75 Me. 478, 481 (1883)). The 1902 case of Killllmll v. Page relaxed this •

requirernent, so that only the "material words, those essential to the charge

mllde, must be proved as alleged, but that some latitude mllY be allowed with respect" to the precise phrasing and context. Picard, 307 A.2d at 835 (citing Killiball v. Page, 96 Me. 487, 489, 52 A. 1010,1011 (1902)). For example, in Pimrd v. Brellllml, the complaint alleged that the defendant "made statements lin substance as follows:

(a) Th,lt Plaintiff had been guilty of short-weighting customers on sever,ll lXCll,si ons.

(b) Thclt PI<lintiff did not leave the employ of Wilson &: Co., Inc.

voluntarily but rather was fired ... because he hlld checlted customers .... '"

Jd. at 833-34. The Law Court identified the mllterial words as "because fie fwd clu?a/ed C/lstoJllers .... " Jd. llt 835.

The "materi<ll words" pleading standard fits comfortably within ,

requirements of notice plellding. A publication is slanderous or defam,ltory if a

"person of ordinllry intelligence" would understand it to be so, and its actionability is a question of law when the "language is plain and free from ambiguity ...." Pimrd, 307 A.2d at 835 (quoting CJwplIla/l v. Ga/l/lett, 132 Me. 389, 391,171 A. 397, 398 (1934)) (quotations omitted). The substance lllld language of the 'llleged st<ltcment is thus material to the defamation claim and must be averred as part of the plaintiff's prima facie case.

The question becomes whether Mr. Pascoe's amended complaint is sufficiently definite to survive the defendants' Rule 12(b)(6) motions to dismiss. Dismissal is <lpproprillte where the complaint fails to set "forth clements of a cause of llction or clllegell facts that would entitle the plaintiff~to reljd pursu<lnt to some legal theory." Benu, 2008 ME 18, 91 7, 939 A.2d at 679 (quoting Shaw v. S. Aroostook Ou/y. Sci/. Dis/., 683 A.2d 502,503 (l'vrc. 1996)) (quotations omitted). The clements of dcfam<ltion Me:

(a) a false eind defamatory statement concerning another;

(b) an unprivileged publication to a third party;

(c) fault amounting at least to negligence on the part of the publisher; <md

(d) ei ther actionabili ty of the statement irrespective of special harm or the existence of special harm caused by the publiCation.

Lester v. Powers, 596 A.2d 65, 69 (Me. 1991) (adopting Restatement (Second) of Torts § 558 (1977)).

The amended complaint identifies the following defamatory statements:

• " . .. Defendants and cigents of Defendant Johnson Controls, falsely informed Christine Spinale and other human resource personnel that Pascoe doctored and / or falsified his time cards for work done at the Verso job." (Amended Compi. ~] 24(21).)

• " . .. Defendants <:1nd <:1gents of Dcfend<:1nts ... sent an eJn<:1il to Carol Skotnicki ,md Christine Spin<:1le falsely <:1ccusing P<:1scoe of falsifying hours worked <:1t the Verso job ... ." (Amended Comp1. 1[ 2~(b).)

• " . .. Defendants <:1nd <:1gents of Defendants ... falsely rnfonncd employees of Johnson Controls ... that Pascoe was stealing, was a heir, llcld falsified his time cards, and/or was dishonest in his business de<:1lings with Verso ... ." (Amended Com pi. (Ir 24(c).)

• " . .. Dcfend(lnts (Ind agents of Defendants ... falsely il'lformed Dovid Pelletier, an officer of the Plumbers and Pipcfitters Union, Locol 131, that P<:1scoe lied in his business dectlings, [and] folsified his time c<:1rcls . ..."

(Amended Com pi. err 24(d).)

The m<:1teri<:11 words cont<:1ined in these statements arc that :LvIr. Pascoe "doctored ond / or falsi fied his time cards for work done at the Verso job," that Mr. Pascoe folsified the "hours worked ot the Verso job," that Mr. Pascoe " was stealing," and that he "wos (\ liar." If proven, a re(\son<:1ble person heoring these words could underst(\nd them to impute to the plointiff dishonest conduct in his profession. II Any chorge of dishonesty agoinst an individu<:11, in connection with his business, whereby his ch()focter in such business may be injuriously offected, is actionoblc." Mnrstoll (I. Ncwnvolll, 629 A.2d 587,592 (Me. 1(93) (quoting Orr v.

Skafielrl, 56 Me. 4R3, 487 (1869)) (Cluot"tions omitted). The dcfendalits' motions to dismiss Count [I, def"m"tion per sc, me denied.

Pl"intiff's Count [[f "lieges dcf" mat! on by compelled self-public"tion.

\Nhile the Law Court has not yet recognized this c"use of "ction, the District of M"ine has adopted it "s a derivative or M"ine's law on negligent public"tion. Cnrcy v. lvIt. Desert Jslnlld Hasp., 910 F. Supp. 7, 11, 14 (D. Me. 1995). VVhere "n employer-defend"nt terminated el plaintiff's employment in connection with a defamatory statement, the "employer-defendant may be liabl~ where it is foreseeable th"t" pl"intiff would be compelled to repcelt the defam"tory statement during "ttempts to secure new employment." JrI. elt 9. "vVh"t constitutes strong compulsion must of necessity be decided by the findcr of f"ct under the circulllstclnces in e"ch c"se when substanti"l evidence of such compulsion is introduced." JrI. "tI3 n.7 (Cluoting Belc!ter v. Little, 315 N.W.2d 734, 738 (IowelI982)) (Cluotations omitted).

The elllwnded complaint alleges that the dcfend"nts held. rc'ason to believe Mr. P"scoc would be compelled to repeat the defamatory statements, and that he hils been injured by WllY of such compulsion. However, the compl"int docs not elllegc thllt Mr. Pclscoe has actually been compelled to publi~h the statements. If the court v"ere to recognize the tort of defamation through compelled sclf publiceltion, an actual self-pubJic"tion would be an essential element. Count III of the amended complclint therefore f"ils to state a claim for which relief c"n be granted.

The entry is:

The plCiintiff's motion to amend his complaint is granted. The defendants'

motions to dismiss Count TIl are gr<:mted, but Lire othe

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Pascoe v. Johnson Controls, Inc., (Me. Super. Ct. 2010).

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