Duplisea v. City of Biddeford

• Docket Number: 2:22-cv-00317-JAW
• Decision Date: 06 June 2023
• Parties: MATTHEW DUPLISEA, Plaintiff v. CITY OF BIDDEFORD et al., Defendants
• Court: U.S. District Court — District of Maine

1

MATTHEW DUPLISEA, Plaintiff v. CITY OF BIDDEFORD et al., Defendants

No. 2:22-cv-00317-JAW

United States District Court, D. Maine

June 6, 2023

RECOMMENDED DECISION ON MOTION TO DISMISS

KAREN FRINK WOLF, UNITED STATES MAGISTRATE JUDGE

Matthew Duplisea alleges that the City of Biddeford wrongly fired him after a coworker falsely accused him of slapping her butt. The City moves to dismiss Duplisea's claims that its investigation of the alleged slapping incident and subsequent termination of his employment violated his procedural and substantive due process rights. I recommend that the Court grant the City's motion to dismiss because Duplisea does not oppose the dismissal of his procedural due process claim and his allegations are insufficient to state a substantive due process claim. I further recommend that the Court decline to exercise jurisdiction over Duplisea's remaining claims because they all arise under state law.

I. Background

The following facts are drawn from Duplisea's complaint and are taken as true for the purpose of evaluating the City's motion to dismiss. See Clukey v. Town of Camden, 717 F.3d 52, 53 (1st Cir. 2013).

Duplisea worked for the City's Recreational Department for several years helping create various recreational programs that benefited the community. See Complaint (ECF No. 1) ¶¶ 8, 10. He always performed his job with dignity and respect and was well regarded throughout the community. See id. ¶ 9.

The Rec. Department, which had always been a professional workplace, experienced upheaval when two of its employees Alisha Keezer and Brian Dunphe, became romantically involved. See id. ¶¶ 10-11. Duplisea complained to his supervisor that Keezer and Dunphe's romance had negatively affected some of the Rec. Department's programs, and Keezer and Dunphe faced disciplinary action and possible termination because management suspected that Keezer had improperly deleted computer files and Dunphe had falsified his timesheets. See id. ¶¶ 12-15.

In September 2021, Keezer and Dunphe-to distract from their own mounting problems-falsely reported to Diana DePaolo in the City's Human Resources Department that Duplisea had slapped Keezer on the butt. See id. ¶¶ 16-17. Dunphe recalled that the incident took place in early spring 2021, while Keezer reported that it took place in late February or early March 2021. See id. ¶¶ 18-19. Dunphe reported that “Duplisea ‘reached out with his hand to slap [Keezer] on the butt when she bent over, it made a noise, she screamed ouch, that hurt.'” Id. ¶ 18. Keezer and Dunphe claimed that two other Rec. Department employees, Jerry LaPierre and Nikki Billingslea, had witnessed the slapping. See id. ¶¶ 20, 44.

The City commenced an investigation in October 2021, assigning Dylan Jewett of the Public Works Department to conduct the investigation despite the fact that he was unqualified to do so. See id. ¶¶ 22-23. Notably, Jewett and Dunphe were classmates in high school. See id. ¶ 23 n.1.

Jewett and DePaolo interviewed Keezer, Dunphe, LaPierre, Billingslea, and Duplisea. See id. ¶¶ 24, 26, 30. Keezer and Dunphe both “recounted the alleged slapping incident.” Id. ¶ 25. LaPierre denied that the slapping incident had occurred and called it a false allegation. See id. ¶¶ 27-28. Billingslea reported that there was one day in May 2021 that she had heard “some commotion” from across the room when everyone was in the office together but that she had not seen anything and the commotion had sounded “playful and joking.” Id. ¶¶ 29, 44 n.2. For his part, Duplisea was blindsided by the accusation and adamantly denied it; Jewett and DePaolo only spent about five minutes discussing it with him before switching to another subject. See id. ¶¶ 30-39.

When Jewett ultimately issued his investigative report to City Manager James Bennett, he failed to include LaPierre's exculpatory statement and misrepresented that (1) Billingslea had confirmed that the slapping occurred, (2) Duplisea had stated that if the slapping occurred it was accidental, and (3) Keezer's, Dunphe's, and Billingslea's stories were consistent and corroborated that the slapping had occurred. See id. ¶¶ 40-45. When Billingslea later met with Bennett, Jewett, and DePaolo, she reiterated that she had only heard “some joking and playful commotion on the other side of the office” and had not seen the slapping incident. Id. ¶ 49. Bennett pressured Billingslea to say that the slapping had occurred, but she refused. Id. ¶¶ 46-49.

The City held a disciplinary hearing in November 2021. See id. ¶ 50. The City provided Duplisea with Jewett's report in advance of the hearing, but did not inform him of the exculpatory evidence from LaPierre and Billingslea. See id. ¶ 52. It also admitted the report at the hearing without any correction to include the exculpatory evidence. See id. ¶ 53.

Shortly after the disciplinary hearing, the City terminated Duplisea's employment on the basis that the evidence was “conclusive enough” to show that he had slapped Keezer. Id. ¶¶ 55-56. In terminating Duplisea's employment, the City misrepresented that “three individuals reported the same general details to the investigator” when it knew that was not true. Id. ¶¶ 57-60. The City also retaliated against Billingslea for refusing to say that she saw Duplisea slap Keezer, which ultimately caused her to resign. See id. ¶¶ 61-62.

Duplisea filed a complaint in October 2022 asserting claims of procedural due process violation (Count I), substantive due process violation (Count II), and defamation (Count III) against the City and claims of slander (Counts IV-V)^[1] against Keezer and Dunphe. See id. ¶¶ 66-88. The City then filed the instant motion to dismiss the procedural and substantive due process claims for failing to state a claim. See Motion to Dismiss (MTD) (ECF No. 12).

II. Legal Standard

When assessing the City's Fed.R.Civ.P. 12(b)(6) motion to dismiss for failure to state a claim, I must accept as true all of Duplisea's well-pleaded facts and indulge all reasonable inferences in his favor. See Clark v. Boscher, 514 F.3d 107, 112 (1st Cir. 2008). To survive dismissal, Duplisea's well-pleaded facts must “possess enough heft to show that [he] is entitled to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (cleaned up).

III. Discussion

A. Procedural Due Process Claim (Count I)

As previously mentioned, Duplisea does not oppose the dismissal of his procedural due process claim. See Opposition (ECF No. 20) at 1 n.1 (“[Duplisea] does not oppose dismissal on Count I.”); Complaint ¶¶ 66-69. Accordingly, that claim should be dismissed without further ado.

B. Substantive Due Process Claim (Count II)

By contrast, Duplisea does oppose the dismissal of his substantive due process claim. See Opposition at 1-2. To state a substantive due process claim, Duplisea must plead sufficient facts to show that (1) he suffered a “deprivation of an established . . . property interest”^[2] and (2) “that such deprivation occurred through governmental action that shocks the conscience.” Clark, 514 F.3d at 112.

i. Established Property Interest

With regard to the first element^[3], the City argues that Duplisea has failed to plausibly allege that he had a constitutionally protected property interest in his job. See MTD at 4-5, 7; King v. Town of Hanover, 116 F.3d 965, 969 (1st Cir. 1997) (“[A] public employee has a constitutionally protected property interest in his continued employment when he reasonably expects his employment will continue. An employee who can only be dismissed for cause has such an expectation. An at-will employee, however, has no reasonable expectation of continued employment. Whether an employment contract allows dismissal only for cause is a matter of state law.” (cleaned up)).

Surprisingly, Duplisea “agrees” that he “has not alleged a plausible property interest in his employment with the City.” Opposition at 1. In falling on his sword, however, “Duplisea requests that he be allowed to amend his complaint to allege that he had a protected interest of continued employment due to his status as” a “public employee who could only be dismissed for cause.” Id. at 7. But beyond that succinct description, Duplisea does not indicate what specific facts he will plead if given the opportunity to amend, nor has he filed a separate motion to amend accompanied by a proposed amended complaint.

As the City correctly points out, See Reply at 1-3 Duplisea's embedded request for leave to amend is both procedurally improper and lacking in necessary detail, Levitt v. Sonardyne, Inc., No. 2:12-cv-00032-JAW, 2012 WL 5350037, at *2 (D. Me. Oct. 29, 2012) (“Requests to amend should be made by separate motion and should attach the proposed amended complaint so that the Court is able to evaluate the nature of the proposed amendment and its sufficiency.”). Courts take a “dim view” of tucking away a request for leave to amend in an opposition to a motion to dismiss. Id. at *1-2 (“If the Plaintiff thought that an amendment could cure the alleged deficiencies, then when the Defendants moved to dismiss, the Plaintiff should have made a proper motion for leave to amend and spared the opposing party and the Court time and expense dealing with an obsolete pleading.”); see also Douglas v. Hirshon, 63 F.4th 49, 58 (1st Cir. 2023) (“If plaintiffs believe that they need to supplement their complaint with additional facts to withstand a motion to dismiss, they have a readily available tool: a motion to amend the complaint under [Fed. R. Civ. P.] 15.” (cleaned up)). And although this Court has occasionally held its nose and granted similar requests, it recently warned litigants not to expect that outcome in every case. See Anderson v. Univ. of New England, No....