Pascoe v. Johnson Controls, Inc.

• Court: Superior Court of Maine
• Decided: December 2, 2010
• Docket: CUMcv-10-254
• Status: Unpublished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.

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.

1 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. 2 '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,

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,

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

3 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

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

"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

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

cause of llction or clllegell facts that would entitle the plaintiff~to reljd pursu

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

4 (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;

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

~\ ~ DATE: - . . , . . - ,~ ~I/?(Jl() l- v "------ ---{-;,L----+---------\---------­ r C1nd A. Justice, Su

7 CLERK OF COURTS Cumberland County 205 Newbury Street, Ground Floor Portland, ME 04101

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CLERK OF COURTS Cumberland County 205 Newbury Street, Ground Floor Portland, ME 04101

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