Defendants named in a federal lawsuit filed by a former division director at the Maine Center for Disease Control are seeking to dismiss three of the complaint’s eight counts.

Sharon Leahy-Lind has said her bosses at Maine CDC ordered her to shred public documents and harassed and discriminated against her when she refused. She filed a civil suit against the Maine Department of Health and Human Services and Maine CDC Director Sheila Pinette in U.S. District Court in Portland in October. DHHS oversees the Maine CDC.

Through her attorney, Cynthia Dill, Leahy-Lind claims Pinette and others at DHHS violated the Whistleblower Protection Act by retaliating against Leahy-Lind when she refused to destroy documents connected to the funding of the Healthy Maine Partnerships program. She also claims defamation and violations of state and federal medical leave acts, the Maine Human Rights Act, the Federal Civil Rights Act, the Freedom of Access Act and the First Amendment.

In a motion filed in December, Assistant Attorney General Susan P. Herman wrote that Leahy-Lind is barred by the Eleventh Amendment from claiming the Maine CDC interfered with her rights in violation of the Federal Family Medical Leave Act. Herman argued that the state is immune from such legal action in federal court taken by residents unless the state has “expressly consented to suit or Congress has explicitly abrogated the state’s immunity in those circumstances where such abrogation is effective.”

The defendants also seek the dismissal of Count No. 7 of the complaint, in which Leahy-Lind claims defamation. In her complaint, Leahy-Lind says Pinette made “false and defamatory” statements about Leahy-Lind that weren’t privileged. Pinette’s statements included the remark that Leahy-Lind was a “liar” and “published” her statements to “third parties,” according to Leahy-Lind’s suit.

In her motion, Herman wrote that Leahy-Lind is barred from bringing that action by the “exclusivity provision” of the Maine Workers’ Compensation Act because Leahy-Lind was working in her capacity as a state employee at the time the alleged statements were made. Moreover, because she was a state official at the time, she “must prove by clear and convincing evidence” that the defendant not only made a false, defamatory statement about her, but did so with knowledge that the statement was false or was made with reckless disregard of whether it was false, Herman wrote in her motion.

Herman claims Leahy-Lind failed to provide enough facts in her complaint to make the defamation claim.

The defendants’ seek to dismiss Count No. 8 of the complaint, which claims Leahy-Lind’s First Amendment rights were violated and that Pinette retaliated against her for exercising her rights under the First Amendment.

Herman wrote that Leahy-Lind failed to meet the necessary elements of a claim of violation of First Amendment rights. The division director was speaking in her capacity as a state official, not as a citizen, making that speech unprotected under the First Amendment, Herman wrote. The complaint also failed to identify an adverse employment action taken by Pinette that would warrant a claim of retaliation, Herman wrote.

No date has been set by the court to hear the arguments on the defendants’ motion to dismiss the three counts.

Leahy-Lind is seeking a jury trial. She has been given additional time by the judge to respond to the defendants’ motion to dismiss.

Leahy-Lind was director of the CDC’s Division of Local Public Health. She made headlines last spring when she filed a complaint with the Maine Human Rights Commission claiming, among other things, that her bosses at the Maine CDC ordered her to destroy documents that showed the scoring results for the 27 Healthy Maine Partnerships at the center of a controversy involving hundreds of thousands of dollars in state funding. She said the scoring was manipulated to favor certain organizations over others.

Leahy-Lind said she refused to destroy the documents because that would have been illegal. When the CDC’s deputy director, Christine Zukas, learned that she hadn’t destroyed the documents, Leahy-Lind said she was assaulted and ordered to take the documents home and destroy them there. Leahy-Lind said she again refused and stored the records in files at her office.

Leahy-Lind resigned as director of the Division of Local Public Health in July, saying her bosses made it impossible for her to do her job, treating her with disdain and disrespect and denying her basic work tools. She is currently working outside the public health arena.

The suit asks for unspecified damages and reinstatement as director of the division or back and forward pay.

Staff Writer Lindsay Tice contributed to this report.

cwilliams@sunjournal.com

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