Tomer v. Maine Human Rights Com'n

• Decision Date: 23 December 2008
• Docket Number: Docket: Pen-08-217
• Parties: George TOMER v. MAINE HUMAN RIGHTS COMMISSION.
• Court: Maine Supreme Court

962 A.2d 335

2008 ME 190

George TOMER v. MAINE HUMAN RIGHTS COMMISSION.

Docket: Pen-08-217

Supreme Judicial Court of Maine.

Submitted on Briefs: November 4, 2008.

Decided: December 23, 2008.

George Tomer, Old Town, ME, pro se.

John P. Gause, Commission Counsel, Maine Human Rights Commission, Augusta, ME, for Maine Human Rights Commission.

Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, SILVER, and GORMAN, JJ.

ALEXANDER, J.

[¶ 1] George Tomer appeals from a judgment entered in the Superior Court (Penobscot County, Murphy, J.) dismissing his M.R. Civ. P. 80C appeal of a decision of the Maine Human Rights Commission that had dismissed his complaint of employment discrimination against the Penobscot Nation after the Commission concluded that the complaint involved internal tribal matters over which the Commission has no subject matter jurisdiction. Tomer argues that the Superior Court erred in dismissing his complaint because (1) the court should have treated the Commission's motion to dismiss as a motion for summary judgment and heard his case on the merits, and (2) the Commission's dismissal constituted final agency action within the meaning of 5 M.R.S. § 11001(1) (2007) of the Maine Administrative Procedure Act (APA), 5 M.R.S. §§ 8001-11008 (2007). Tomer also argues that the Commission (1) failed to carry out its statutory duty to investigate his claim, including investigating whether it had jurisdiction under the specific facts of his case, and (2) erred, on the merits, in dismissing his charge for lack of subject matter jurisdiction.¹ We affirm the judgment of dismissal.

I. CASE HISTORY

[¶ 2] George Tomer is a member of, and was employed by, the Penobscot Nation. Tomer was suspended without pay and subsequently discharged from his position in July 2007. In August 2007, Tomer filed a complaint of employment discrimination with the Maine Human Rights Commission alleging retaliatory discharge against the Penobscot Nation. The Penobscot Nation requested that the Commission dismiss the complaint on the grounds that the dispute involves an internal tribal matter, and that, pursuant to 30 M.R.S. § 6206(1) (2007), the Commission lacks subject matter jurisdiction to address Tomer's claims. In November 2007, the Commission dismissed Tomer's complaint, citing 5 M.R.S. § 4612 (2007), on the grounds that it lacked jurisdiction to investigate his complaint.

[¶ 3] Tomer appealed the Commission's dismissal of his complaint to the Superior Court pursuant to M.R. Civ. P. 80C. The Commission filed a motion to dismiss Tomer's complaint pursuant to M.R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. In support of its motion, the Commission asserted that its dismissal of Tomer's charges does not constitute "final agency action" and is therefore not subject to review pursuant to Rule 80C and the APA.

[¶ 4] The court granted the Commission's "motion to dismiss for failure to state a claim" without oral argument. The court noted in its order that "Plaintiff may be able to obtain relief under 5 M.R.S.A. § 4621, 4622, although [the] Court is not reaching that issue." Tomer appeals from that order.

II. LEGAL ANALYSIS

[¶ 5] Tomer argues that the Superior Court erred in dismissing his Rule 80C appeal pursuant to M.R. Civ. P. 12(b)(6) on two grounds; (1) that, contrary to the Commission's assertion, its dismissal of his complaint constituted "final agency action" subject to direct review in the Superior Court, and (2) that the court should have treated the Commission's motion to dismiss as a motion for summary judgment. We discuss each in turn.

A. Final Agency Action

[¶ 6] Tomer argues that the court erred in dismissing his Rule 80C appeal because the Commission's dismissal of his employment discrimination complaint for lack of subject matter jurisdiction constitutes "final agency action" within the meaning of the APA, 5 M.R.S. § 8002(4), thus authorizing the Superior Court to review directly the Commission's decision pursuant to M.R. Civ. P. 80C and the APA, 5 M.R.S. § 11001(1).

1. Standard of Review

[¶ 7] To determine what standard of review to apply, we first consider upon what grounds the court dismissed Tomer's Rule 80C appeal. The court stated that it dismissed the appeal "for a failure to state a claim," apparently pursuant to M.R. Civ. P. 12(b)(6). However, the underlying reasoning for the dismissal appears to be the court's conclusion that there was no final agency action that would permit appellate review and thus, that the court lacked subject matter jurisdiction, thereby dismissing the matter pursuant to M.R. Civ. P. 12(b)(1) instead.

[¶ 8] The authority granted to courts pursuant to the APA allowing judicial review of "final agency actions" is a jurisdictional issue. See, e.g., 5 M.R.S. § 11001(1); York Hosp. v. Dep't of Health & Human Servs., 2008 ME 165, ¶¶ 33-34, 959 A.2d 67, 74; E. Me. Med. Ctr. v. Me. Health Care Fin. Comm'n, 601 A.2d 99, 101 (Me.1992) ("Only an appeal from final agency action automatically removes jurisdiction from the administrative agency to the court system.").² We therefore review the court's judgment of dismissal as one entered for lack of subject matter jurisdiction, as described in M.R. Civ. P. 12(b)(1).³

[¶ 9] Whether subject matter jurisdiction exists is a question of law that we review de novo. R.C. Moore, Inc. v. Les-Care Kitchens, Inc., 2007 ME 138, ¶ 18, 931 A.2d 1081, 1085. When a motion to dismiss is based on the court's lack of subject matter jurisdiction, we make no favorable inferences in favor of the plaintiff such as we do when reviewing a motion to dismiss for failure to state a claim upon which relief can be granted. Francis v. Dana-Cummings, 2004 ME 4, ¶ 17, 840 A.2d 708, 711; Persson v. Dep't of Human Servs., 2001 ME 124, ¶ 8, 775 A.2d 363, 365; Davric Me. Corp. v. Bangor Historic Track, Inc., 2000 ME 102, ¶ 6, 751 A.2d 1024, 1028.

2. Existence of "final agency action"

[¶ 10] Tomer contends that the Commission's administrative dismissal of his discrimination charge constitutes a "final agency action," thus conferring subject matter jurisdiction on the Superior Court to review the Commission's decision pursuant to M.R. Civ. P. 80C.

[¶ 11] Section 11001 of the APA provides that "any person who is aggrieved by final agency action shall be entitled to judicial review thereof in the Superior Court." 5 M.R.S. § 11001(1);⁴ see also M.R. Civ. P. 80C(a). "Final agency action" is defined as "a decision by an agency which affects the legal rights, duties or privileges of specific persons, which is dispositive of all issues, legal and factual, and for which no further recourse, appeal or review is provided within the agency." 5 M.R.S. § 8002(4).

[¶ 12] Pursuant to the Maine Human Rights Act, when a complainant, such as Tomer, files a charge of discrimination with the Commission, the Commission's function is generally that of an investigator and conciliator. The Commission is required to "conduct such preliminary investigation as it determines necessary to determine whether there are reasonable grounds to believe that unlawful discrimination has occurred." 5 M.R.S. § 4612(1)(B). If the Commission finds no such reasonable grounds, or for certain other reasons, such as concluding it lacks jurisdiction, the Commission may dismiss the proceeding. Id. § 4612(2); 11 C.M.R. 94 348 002-3 § 2.02(H) (1999) (providing that the Commission's Executive Director may, in his or her discretion, administratively dismiss complaints of discrimination for lack of jurisdiction). If the Commission dismisses the complaint, the complainant is free to file a complaint of discrimination against the alleged wrongdoer in the Superior Court. 5 M.R.S. § 4621 (2007). The Superior Court considers the complaint de novo, id. § 4631 (2007), without any impediment from the adverse Commission action. When a complainant files a civil action in the Superior Court following the Commission's administrative dismissal of his charge, the complainant may also allege in that civil action that the Commission's dismissal was done in error. See id. § 4622(1)(D) (2007).

[¶ 13] Alternatively, if the Commission finds reasonable grounds to believe unlawful discrimination has occurred, it may attempt to broker a conciliation. Id. § 4612(3). If conciliation fails, the Commission may file a complaint in the Superior Court for the benefit of the complainant, id. § 4612(4), although it usually does not, in which case the complainant may do so directly, id. § 4621. Whether the complainant brings an action in the Superior Court or the Commission does so for his benefit, the trial court hears the case de novo, and the complainant is entitled to the same due process rights as any litigant. See Chandler v. Roudebush, 425 U.S. 840, 844-45, 863, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976); EEOC v. Gen. Elec. Co., 532 F.2d 359, 370 (4th Cir.1976) (holding that the EEOC, which investigates administratively-filed complaints of employment discrimination pursuant to Title VII of the Civil Rights Act of 1964, has no adjudicatory power, that adjudication is the exclusive function of courts under the EEOC, and that a subsequent court trial is de novo); Me. Human Rights Comm'n v. Me. Dept. of Defense & Veterans' Servs., 627 A.2d 1005, 1007 (Me.1993) (reiterating that Maine courts looks to federal case law interpreting Title VII for guidance in construing the Maine Human Rights Act); accord Percy v. Allen, 449 A.2d 337, 342 (Me.1982).

[¶ 14] Because Tomer has the option to pursue his claim against the Penobscot Nation to the full extent allowable by law by filing a civil action in the Superior Court, his legal rights, duties, or privileges were not affected within the meaning of 5 M.R.S. § 8002(4) when the Commission administratively dismissed his claim of discrimination. Cf. Friedman v. Bd. of Envtl. Prot., 2008 ME 156, ¶¶ 11-12, 956 A.2d 97, 101.⁵ Accordingly, there has been no "final agency action," as...