MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2019	ME	36	
Docket:	      Ken-18-318	
Submitted	
  On	Briefs:	 February	20,	2019	
Decided:	     March	7,	2019	
                                                                                            	
Panel:	        ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
	
	
                                   DANIEL	R.	LAWSON	
                                            	
                                           v.	
                                            	
                                     DEBBY	WILLIS	
	
	
PER	CURIAM	

          [¶1]	 	 Daniel	 R.	 Lawson	 appeals	 from	 a	 judgment	 of	 the	 Superior	 Court	

(Kennebec	 County,	 Murphy,	 J.)	 dismissing	 his	 defamation	 action	 against	 his	

former	 supervisor,	 Debby	 Willis,	 for	 failure	 to	 state	 a	 claim	 pursuant	 to	

M.R.	Civ.	P.	12(b)(6).		Lawson	contends	that	the	court	erred	in	its	determination	

that	Willis	was	immune	from	liability	pursuant	to	the	Maine	Tort	Claims	Act,	

14	M.R.S.	§	8111(1)(C)	(2018).		We	affirm	the	judgment.		

                                     I.		CASE	HISTORY	

          [¶2]		Lawson	alleges	the	following	facts	in	his	complaint,	which	we	view	

as	 admitted	 for	 the	 purposes	 of	 this	 appeal.	 	 Ramsey	 v.	 Baxter	 Title	 Co.,	

2012	ME	113,	¶	2,	54	A.3d	710.			
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      [¶3]		In	September	2016,	Lawson	began	working	as	an	assistant	attorney	

general	 in	 the	 Child	 Support	 Enforcement	 Division	 of	 the	 Maine	 Attorney	

General’s	Office.		Debby	Willis	was	the	chief	of	the	Child	Support	Enforcement	

Division	 and	 Lawson’s	 direct	 supervisor.	 	 For	 the	 first	 six	 months	 of	 his	

employment,	 Lawson	 received	 generally	 positive	 feedback	 from	 Willis,	 who	

indicated	in	a	February	2017	meeting	with	him	that	she	was	satisfied	with	his	

work	performance	based	on	her	review	of	his	written	work	and	from	speaking	

with	people	who	had	observed	him	in	court.				

      [¶4]		Shortly	after	that	meeting,	Lawson	responded	to	a	colleague’s	email	

thread	 regarding	 the	 interpretation	 of	 a	 statute	 with	 an	 opinion	 that	 was	

contrary	to	the	opinion	that	Willis	had	already	expressed.		Willis	told	Lawson	

that	 this	 bothered	 her	 and	 reprimanded	 him	 for	 sending	 the	 email.	 	 Lawson	

alleges	 that	 following	 this	 reprimand	 Willis	 began	 providing	 extremely	

negative	feedback	about	his	job	performance	even	though	it	had	not	worsened.		

Lawson	also	alleges	that	Willis	wrote	a	memo	that	falsely	claimed	that	he	had	

been	ordered	by	a	court	to	serve	a	party	and	had	refused	to	do	so.				

      [¶5]		On	June	5,	2017,	Willis	informed	Lawson	that	the	Attorney	General	

was	 terminating	 his	 employment	 based	 on	 her	 recommendation.	 	 Willis	

provided	 Lawson	 with	 a	 memo	 regarding	 her	 assessment	 of	 his	 job	
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performance	in	which	Lawson	alleges	that	she	stated,	without	basis,	that	he	had	

been	rude	and	arrogant	during	 his	court	appearances.		As	a	result	of	Willis’s	

statements	and	his	resulting	termination,	Lawson	was	forced	to	take	a	lower	

paying	job	and	has	suffered	damage	to	his	previously	unblemished	professional	

reputation.				

	      [¶6]	 	 Lawson	 commenced	 this	 action	 in	 November	 2017.	 	 In	 his	

complaint,	he	asserted	claims	against	Willis	for	libel	per	se	and	slander	per	se.		

Willis	 filed	 a	 motion	 to	 dismiss	 in	 which	 she	 argued,	 pursuant	 to	 M.R.	 Civ.	P.	

12(b)(6),	that	Lawson’s	complaint	failed	to	state	a	claim	upon	which	relief	may	

be	 granted	 because	 his	 claims	 against	 her	 were	 barred	 by	 the	 discretionary	

function	 immunity	 provision	 of	 the	 Maine	 Tort	 Claims	 Act,	 14	 M.R.S.	

§	8111(1)(C).		After	a	hearing,	the	court	determined	that	Lawson’s	claims	were	

barred	 by	 discretionary	 function	 immunity	 and	 granted	 Willis’s	 motion	 to	

dismiss.		Lawson	timely	appealed.		See	M.R.	App.	P.	2B(c)(1).				

                                 II.		LEGAL	ANALYSIS		

A.	    Discretionary	Function	Immunity	

	      [¶7]		Lawson	concedes	that	Willis’s	act	of	recommending	his	termination	

to	the	Attorney	General	qualifies	as	a	discretionary	function,	but	he	argues	that	

her	 communications	 to	 the	 Attorney	 General	 regarding	 his	 job	 performance	
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were	separate	acts	that	required	no	discretion—they	were	either	accurate	or	

inaccurate—and,	as	such,	his	defamation	claims	are	not	barred	by	discretionary	

function	immunity.			“We	review	the	court’s	grant	of	a	motion	to	dismiss	de	novo	

for	errors	of	law.”		Hathaway	v.	City	of	Portland,	2004	ME	47,	¶	9,	845	A.2d	1168.			

	     [¶8]	 	 Title	 14	 M.R.S.	 §	 8111(1)	 of	 the	 Maine	 Tort	 Claims	 Act	 grants	

immunity	 from	 liability	 to	 governmental	 employees	 who	 are	 performing	

discretionary	functions:	

     Notwithstanding	 any	 liability	 that	 may	 have	 existed	 at	 common	
     law,	 employees	 of	 governmental	 entities	 shall	 be	 absolutely	
     immune	from	personal	civil	liability	for	the	following:	
     	
     	     .	.	.	.	
     	
           C.	 	 Performing	 or	 failing	 to	 perform	 any	 discretionary	
           function	or	duty,	whether	or	not	the	discretion	is	abused;	and	
           whether	 or	 not	 any	 statute,	 charter,	 ordinance,	 order,	
           resolution,	 rule	 or	 resolve	 under	 which	 the	 discretionary	
           function	or	duty	is	performed	is	valid;	
           	
     	     .	.	.	.	
     	
     The	 absolute	 immunity	 provided	 by	 paragraph	 C	 shall	 be	
     applicable	 whenever	 a	 discretionary	 act	 is	 reasonably	
     encompassed	 by	 the	 duties	 of	 the	 governmental	 employee	 in	
     question	.	.	.	.		
     	
Governmental	 entities	 are	 likewise	 immune	 from	 liability	 for	 discretionary	

functions.		See	14	M.R.S.	§	8104-B(3)	(2018).		
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       [¶9]	 	 We	 utilize	 a	 four-factor	 test	 to	 determine	 whether	 discretionary	

function	immunity	applies:	

      (1)	 Does	 the	 challenged	 act,	 omission,	 or	 decision	 necessarily	
      involve	a	basic	governmental	policy,	program[,]	or	objective?		(2)	Is	
      the	questioned	act,	omission,	or	decision	essential	to	the	realization	
      or	accomplishment	of	that	policy,	program,	or	objective	as	opposed	
      to	one	which	would	not	change	the	course	or	direction	of	the	policy,	
      program,	 or	 objective?	 	 (3)	 Does	 the	 act,	 omission,	 or	 decision	
      require	 the	 exercise	 of	 basic	 policy	 evaluation,	 judgment,	 and	
      expertise	 on	 the	 part	 of	 the	 governmental	 agency	 involved?		
      (4)	Does	the	governmental	agency	involved	 possess	the	 requisite	
      constitutional,	 statutory,	 or	 lawful	 authority	 and	 duty	 to	 do	 or	
      make	the	challenged	act,	omission,	or	decision?		
      	
Darling	v.	Augusta	Mental	Health	Inst.,	535	A.2d	421,	426	(Me.	1987).			
	
	     [¶10]		“The	first,	second,	and	fourth	factors	help	determine	whether	the	

governmental	 employee	 was	 performing	 or	 failing	 to	 perform	 an	 official	

function	 or	 duty,”	 while	 “[t]he	 third	 factor	 helps	 determine	 whether	 that	

function	or	duty	was	discretionary	in	nature,	as	opposed	to	merely	ministerial.”		

Carroll	v.	City	of	Portland,	1999	ME	131,	¶	7,	736	A.2d	279.		“A	discretionary	act	

requires	 judgment	 or	 choice,	 whereas	 a	 ministerial	 act	 is	 mandatory	 and	

requires	 no	 personal	 judgment	 or	 choice.”	 	 Id.	 ¶	 9	 (emphasis	 omitted).	 	 A	

governmental	 employee	 “is	 not	 entitled	 to	 discretionary	 function	 immunity	

unless	 [her]	 allegedly	 tortious	 activity	 required	 the	 exercise	 of	 judgment	 or	

choice.”		Id.		
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	        [¶11]		Lawson	argues	that	under	this	test,	the	defamatory	statements	he	

alleges	that	Willis	made	cannot	be	classified	 as	discretionary.1		He	 maintains	

that	“reporting	an	employee’s	work	activity	does	not	involve,	nor	is	it	essential	

to,	a	basic	governmental	policy[,]	program[,]	or	objective.		Nor	does	it	require	

the	exercise	[of]	the	kind	of	judgment	that	characterizes	discretionary	acts.”		He	

argues	that	Willis’s	reports	of	his	job	performance	were	ministerial	in	nature,	

similar	 to	 the	 acts	 at	 issue	 in	 Carroll.	 	 In	 that	 case,	 we	 held	 that	 a	 defendant	

police	officer	was	not	performing	a	discretionary	act	when	he	mistakenly	listed	

the	plaintiff	as	being	wanted	for	theft—and	was	therefore	not	immune	from	the	

plaintiff’s	defamation	claims—because	he	failed	to	refute	the	 plaintiff’s	claim	

that	 “the	 challenged	 activity	 merely	 involved	 copying	 a	 list	 of	 names	 in	

alphabetical	order.”		Id.	¶¶	2-3,	10.		

         [¶12]		Lawson’s	arguments	oversimplify	the	evaluation	and	reporting	of	

an	 employee’s	 work	 performance	 and	 the	 degree	 of	 personal	 choice	 and	

judgment	 utilized	 in	 the	 process.	 	 His	 situation	 is	 analogous	 to	 that	 of	 the	

plaintiff	in	Quintal	v.	City	of	Hallowell,	2008	ME	155,	¶¶	33-36,	956	A.2d	88.		In	




     1		Lawson	also	cites	to	cases	from	other	states	involving	governmental	immunity	.		In	addition	to	

the	 fact	 that	 the	 cases	 are	 not	 binding	 on	 us,	 each	 is	 distinguishable	 from	 the	 present	 case	 and,	
therefore,	is	not	persuasive.			
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that	 case,	 we	 held	 that	 a	 city	 manager	 was	 immune	 from	 the	 claims	 of	 a	

terminated	code	enforcement	officer	because	

       (1)	it	is	the	municipal	government’s	objective	to	have	 employees	
       that	properly	 and	efficiently	perform	the	tasks	assigned	to	them;	
       (2)	reprimanding	an	employee	and	recommending	his	termination	
       is	essential	to	effectuate	that	objective;	(3)	determining	whether	an	
       employee	is	properly	and	efficiently	discharging	his	duties	requires,	
       at	least	in	part,	the	exercise	of	judgment;	and	(4)	the	City	Manager	
       is	the	appropriate	person	to	make	recommendations	regarding	the	
       Code	Enforcement	Officer’s	job	performance.		[The	City	Manager]’s	
       actions	 were	 within	 his	 discretion,	 and	 even	 if	 he	 abused	 that	
       discretion,	 immunity	 still	 applies	 to	 those	 actions.	 	 14	 M.R.S.	
       §	8111(1)(C).			
       	
Id.	¶	35	(emphasis	added).			

       [¶13]		Applying	the	Quintal	analysis	here	leads	to	the	same	conclusion:	

Willis’s	 reporting	 of	 her	 evaluation	 of	 Lawson’s	 job	 performance	 to	 the	

Attorney	 General	 was	 a	 discretionary	 function	 to	 which	 immunity	 applies.		

Furthermore,	 because	 Willis	 was	 performing	 a	 discretionary	 function,	 her	

immunity	was	absolute,	even	if	she	abused	her	discretion	or	exercised	it	in	bad	

faith.	 	 See	 14	 M.R.S.	 §	 8111(1)(C);	 Quintal,	 2008	 ME	 155,	 ¶	 36,	 956	 A.2d	 88;	

Berard	v.	McKinnis,	1997	ME	186,	¶	11	n.7,	699	A.2d	1148.				

B.	    Motion	to	Dismiss	

	      [¶14]	 	 Lawson	 also	 contends	 that,	 even	 if	 Willis’s	 statements	 to	 the	

Attorney	 General	 are	 not	 actionable	 because	 of	 discretionary	 function	
8	

immunity,	his	complaint	alleges	sufficient	facts	to	overcome	a	motion	to	dismiss	

pursuant	to	M.R.	Civ.	P.	12(b)(6).		He	argues	that	the	language	in	his	complaint	

where	 he	 alleges	 that	 Willis	 published	 the	 statements	 “to	 third	 parties,	

including	the	Attorney	General”	shows	that	he	might	be	able	to	prove	a	claim	

that	 is	 not	 barred	 by	 discretionary	 function	 immunity—such	 as	 if	 Willis	

published	the	statements	outside	her	role	as	his	supervisor.			

	     [¶15]		“When	we	 review	 an	order	 dismissing	a	complaint,	we	consider	

only	the	facts	alleged	in	the	complaint	and	examine	the	complaint	in	the	light	

most	favorable	to	the	plaintiff	to	determine	whether	it	sets	forth	elements	of	a	

cause	of	action	or	alleges	facts	that	would	entitle	the	plaintiff	to	relief	pursuant	

to	some	legal	theory.”		Argereow	v.	Weisberg,	2018	ME	140,	¶	12,	195	A.3d	1210.		

This	process	tests	the	legal	sufficiency	of	the	allegations	in	a	complaint,	rather	

than	the	sufficiency	of	the	evidence	that	a	plaintiff	is	able	to	present.		Id.			

	     [¶16]		While	we	have	held	that	a	plaintiff’s	failure	to	specifically	allege	

certain	facts—such	as	the	date	of	alleged	publication—is	not	always	fatal	to	a	

defamation	 complaint,	 we	 have	 emphasized	 that	 a	 complaint	 must	 give	 the	

defendant	 fair	 notice	 of	 the	 claims	 against	 her.	 	 Vahlsing	 Christina	 Corp.	 v.	

Stanley,	 487	 A.2d	 264,	 267	 (Me.	 1985);	 see	 also	 Nadeau	 v.	 Frydrych,	

2014	ME	154,	 ¶	 5,	 108	 A.3d	 1254.	 	 Lawson’s	 complaint,	 read	 in	 its	 entirety,	
                                                                                      9	

specifically	 alleges	 only	 defamation	 arising	 in	 contexts	 where	 his	 claims	 are	

barred	 by	 discretionary	 function	 immunity.	 	 Even	 when	 examined	 in	 a	 light	

most	 favorable	 to	 him,	 Lawson’s	 inclusive	 language	 alleging	 that	 Willis	

published	the	statements	“to	third	parties,	including	the	Attorney	General”	is	

simply	too	vague	to	give	Willis	fair	notice	of	any	claims	that	might	fall	outside	

the	scope	of	that	immunity.		Accordingly,	the	court’s	granting	of	Willis’s	motion	

to	dismiss	was	proper.			

         The	entry	is:	

                            Judgment	affirmed.		
	
	     	      	      	    	    	
	
Daniel	Lawson,	appellant	pro	se	
	
Janet	T.	Mills,	Attorney	General,	and	Kelly	L.	Morrell,	Asst.	Atty.	Gen.,	Office	of	
the	Attorney	General,	Augusta,	for	appellee	Debby	Willis	
	
	
Kennebec	County	Superior	Court	docket	number	CV-2017-202	
FOR	CLERK	REFERENCE	ONLY	
