Hamilton v. Woodsum

• Decision Date: 21 January 2020
• Docket Number: Docket: Cum-18-519
• Parties: Susan HAMILTON v. Drummond WOODSUM et al.
• Court: Maine Supreme Court

223 A.3d 904

Susan HAMILTON

v.Drummond WOODSUM et al.

Docket: Cum-18-519

Supreme Judicial Court of Maine.

Argued: November 5, 2019

Decided: January 21, 2020

Russell B. Pierce, Jr., Esq. (orally), Norman, Hanson & DeTroy, LLC, Portland, for appellants 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

Panel: ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.^*

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 14 M.R.S. § 556 (2018), Maine's anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) statute, and (2) is an employee of a law firm and the law firm itself, when hired to act as an agent of a governmental entity to provide a report on a specific personnel matter, protected by the employee immunity provision of the Maine Tort Claims Act (MTCA), 14 M.R.S. §§ 8108 - 8118 (2018)?¹

[¶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

I. CASE HISTORY

[¶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 investigations.

[¶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 for [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 14 M.R.S. § 8107 within the MTCA. In her grievance, Hamilton complained that Chapman's "illegal, flawed and biased investigation ... violated her Due Process rights." Hamilton requested that USM reinstate her. On July 21, 2016, Hamilton and representatives of USM met to discuss her grievance. On August 26, 2016, USM denied Hamilton's grievance. On September 8, 2016, Hamilton filed a "step 3 grievance." Again, USM denied Hamilton's claim, asserting that Chapman had conducted a fair investigation.

[¶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 substantive 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 se, (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, 14 M.R.S. § 556, and (2) a motion to dismiss pursuant to both the immunity provisions of the MTCA, 14 M.R.S. §§ 8110 - 8111, and the two-year statute of limitations applicable to defamation claims, 14 M.R.S. § 753 (2018).

[¶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 M.R.S. § 753 ; (2) denied DW's special motion to dismiss pursuant to the anti-SLAPP law; and (3) denied DW's motion asserting immunity pursuant to the MTCA and requesting dismissal.

[¶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." 14 M.R.S. § 556 (emphasis added). The statute "purports to provide a means for the swift dismissal of such lawsuits early in the litigation as a safeguard on the defendant's First Amendment right to petition." Gaudette v. Davis , 2017 ME 86, ¶ 4, 160 A.3d 1190.

[¶16] In ruling on DW's motion to dismiss based on 14 M.R.S. § 556, the trial court determined that "Chapman was not exercising her right of petition; she was instead submitting her report of an internal investigation that had been commissioned by USM. As the Law Court pointed out in Gaudette , the purpose of the right of petition is to seek redress from government." This holding of the trial court accurately summarizes the assertions contained in Hamilton's second complaint about the call for and scope of Chapman's actions. Hamilton claimed that DW and Chapman were retained to provide a report to USM, not as advocacy but as part of an internal personnel matter that would be further processed by USM.

[¶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, 131 S.Ct. 2488, 180 L.Ed.2d 408 (2011) ("The right to petition allows citizens to express their ideas, hopes, and concerns to their government 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 constitute 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 14 M.R.S. § 556.

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 personal civil liability" for performing or failing to perform discretionary functions within the scope of employment. 14 M.R.S. § 8111(1)(C). To determine whether a party or entity is a governmental employee pursuant to the MTCA, we look to 14 M.R.S. § 8102(1), which defines an "[e]mployee" as "a person acting on behalf of a governmental entity in any official capacity, whether temporarily or permanently, and whether with or without compensation from local, state or federal funds." See Day's Auto Body, Inc. v. Town of Medway , 2016 ME 121, ¶¶ 15-19, 145 A.3d 1030 (concluding that a private construction contractor is a governmental employee entitled to MTCA immunity when acting at the direction of the government and performing a governmental function).

[¶20] The question of whether a person is an employee for purposes of the MTCA is ...