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Harding v. Wal-Mart
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 13
Docket:	Pen-00-394
Argued:	December 13, 2000
Decided:	January 22, 2001




	[¶1]  Wal-Mart Stores, Inc., appeals from the judgment entered in the
Superior Court (Penobscot County, Hjelm, J.) affirming the judgment
entered in the District Court (Newport, Stitham, J.) ordering Wal-Mart to
disclose to its former employee, Nancy Harding, internal investigative
reports relating to an incident which led to the termination of Harding's
employment.  Wal-Mart contends that the court erred in concluding that
internal investigative files are part of an employee's personnel file pursuant
to 26 M.R.S.A. § 631 (Supp. 2000).  We affirm the judgment.
	[¶2]  Harding was terminated from her employment at the Palmyra
Wal-Mart.  The reason given for her termination was the "[u]nauthorized
removal of company property."  James Bryant, a loss prevention district
supervisor for Wal-Mart, had conducted an investigation into an internal loss
at the Wal-Mart store in Palmyra.  Bryant interviewed several witnesses and
obtained statements from them. Bryant also interviewed Harding, who wrote
a two-page statement. Based on Bryant's investigation, management of the
Palmyra store terminated Harding's employment.
	[¶3]  Bryant is a Wal-Mart employee.  After Harding was terminated,
Bryant retained the statements and his notes on the investigation in a
separate file which he kept in an office located in his home.  Pursuant to
Wal-Mart policy, Bryant did not put copies of the investigative records in
Harding's personnel file.
	[¶4]  After she was discharged, Harding wrote to the store manager
explaining her version of the events, but received no response.  She then
requested, first orally and then in writing, a copy of her personnel file.  In
her written request, she specifically asked for the documents relating to the
investigation.  In response, Wal-Mart twice gave her documents which
included her evaluations, pay scale, application for employment, and a one-
page "Exit Interview" form which simply stated that she was involuntarily
terminated for the "unauthorized removal of company property."  Wal-Mart
did not, however, provide Harding with any of the statements or notes
relating to Bryant's investigation.
	[¶5]  Harding then filed this action seeking access to the investigative
records pursuant to 26 M.R.S.A. § 631.  Although Wal-Mart eventually
provided Harding a copy of the statement she had given to Bryant, as well as
a copy of the letter she had sent to the store manager after her termination,
it did not release to her any other records contained in Bryant's
investigative file.  
	[¶6]  After a hearing, the District Court held that the investigative
records were components of Harding's personnel file pursuant to 26
M.R.S.A. § 631 and that Wal-Mart was required to produce the file at
Bryant's request.  The court found that Wal-Mart's failure to do so was in bad
faith, assessed a civil forfeiture of $500, and required Wal-Mart to reimburse
Harding for her reasonable attorney fees.
	[¶7]  Wal-Mart appealed to the Superior Court pursuant to
M.R. Civ. P. 76D.  The Superior Court affirmed the judgment of the District
Court, and Wal-Mart filed this appeal. 
	[¶8]  We are asked to determine whether an employer's records
relating to investigations of allegations of employee wrongdoing are included
in the statutory definition of "personnel file" set out at 26 M.R.S.A. § 631. 
Wal-Mart argues that materials regarding an internal investigation conducted
by an employer do not constitute personnel records within the meaning of
the section, first because such records are not identified by name in the
language of section 631, and second, because inclusion of investigatory
records in personnel files would be contrary to public policy.
A.  Standard of Review

	[¶9]  "When a Superior Court acts in an appellate capacity, we directly
review the record of the District Court."  Clum v. Graves, 1999 ME 77, ¶ 9,
729 A.2d 900, 904.  The facts here are not in dispute.  The dispute turns on
the statutory construction of section 631.  "Because statutory construction is
a matter of law, we review decisions regarding the meaning of a statute de
novo."  Kimball v. Land Use Regulation Comm'n, 2000 ME 20, ¶ 18, 745
A.2d 387, 392.  "When reviewing the construction of a statute, '[w]e look
first to the plain meaning of the statutory language as a means of effecting
the legislative intent.'"  Home Builders Ass'n v. Town of Eliot, 2000 ME 82,
¶ 4, 750 A.2d 566, 569 (alteration in original) (quoting Coker v. City of
Lewiston, 1998 ME 93, ¶ 7, 710 A.2d 909, 910).  "If the meaning of this
language is plain, we must interpret the statute to mean exactly what it
says."  Kimball, 2000 ME 20, ¶ 18, 745 A.2d at 392 (quotations and
citations omitted).

B.  Plain Language

	[¶10]  26 M.R.S.A. § 631 (Supp. 2000) provides in pertinent part,
For the purpose of this section, a personnel file includes, but is
not limited to, any formal or informal employee evaluations and
reports relating to the employee's character, credit, work
habits, compensation and benefits and nonprivileged medical
records or nurses' station notes relating to the employee that
the employer has in the employer's possession.
Id. (emphasis added).  
	[¶11]  Preliminarily, it is noteworthy that the Legislature did not limit
documents included in a personnel file to those records physically included
within a particular file folder; rather, the language of the statute makes it
applicable to any such records "the employer has in the employer's
possession."  26 M.R.S.A. § 631; cf. Miller v. Chico Unified Sch. Dist., 597
P.2d 475, 477 (Cal. 1979) (holding that the school district could not avoid
the requirements of a statute allowing employees to comment on any
derogatory information placed in their personnel files, by putting derogatory
material in another file not designated "personnel file").
	[¶12]  We next note that the Legislature used broad category
descriptors rather than an extensive list of specifically designated records to
describe the contents of a personnel file.  The use of such broad descriptors
in this context is both sensible and reasonable.  Employment related records
may be given many different labels.  The records at issue, for example, are
referred to by the parties as investigative records.  They could as easily have
been called "loss prevention records," "internal inquiries," or "employee
conduct records."  Accordingly, an attempt on the part of the Legislature to
identify each type of record by name could become a fruitless pursuit and
lead to avoidance of the statute's reach simply by use of inventive labels.
	[¶13]  The question then is whether the records created by Bryant,
regardless of where they were kept or what they were labeled, fall within
the broad categories of documents enumerated in section 631.  The plain
language of at least two of the general categories set out in section 631 are
designed to encompass such records.  Records "relating to the employee's
character . . . [or] work habits" certainly encompass records pertaining to an
alleged theft by the employee.  See 26 M.R.S.A. § 631.

C.  Public Policy

	[¶14]  Wal-Mart argues nonetheless that there are numerous policy
reasons for ignoring the plain language of the statute.  Among them are: 
(1) ensuring the confidentiality of witness statements and allowing
employers the ability to conduct a meaningful investigation; (2) maintaining
the confidentiality of records that may be used by law enforcement in later
criminal investigations; (3) protecting the employees' interests by
maintaining the confidentiality of investigations which, if kept in the
personnel files, could be subject to disclosure in a variety of settings such as
workers' compensation proceedings and civil actions; and (4) protecting
employers from having to disclose potentially defamatory witness statements
and notes taken during investigations should the allegations turn out to be
baseless.  In addition, Wal-Mart asserts that other states with similar statutes
have specifically excluded internal investigations from the definition of
personnel file. 
	[¶15]  Although Wal-Mart articulates reasonable arguments in support
of a policy decision exempting certain investigative records from the
disclosure requirements of 26 M.R.S.A. § 631, the statute as enacted by the
Legislature does not contain such an exemption.  It is not our role to second
guess the Legislature.  The Legislature is the appropriate body for weighing
the competing interests at stake.
	[¶16]  Finally, Wal-Mart's argument urging us to accept the wisdom of
other states who have created statutory exemptions for investigative records
proves too much.  If our Legislature also determines that investigative and
related records should not be included within the meaning of "personnel
file," it may say so.  To date it has not.  The fact that other legislative bodies
have chosen to exempt investigative records from the requirements of
similar statutes, however, does not support a construction of the Maine
statute as containing an exemption which is not expressly contained in the
language of the statute.
	[¶17]  Accordingly, the District Court correctly concluded that the
records sought by Harding relate to her "character" and "work habits." 
Such records in the possession of the employer, whether or not they are
physically placed in a file labelled "personnel file," are part of the
employee's personnel file for purposes of 26 M.R.S.A. § 631.
	The entry is:
Judgment affirmed.
Attorney for plaintiff: Janet T. Mills, Esq., (orally) Wright & Mills, P.A. P O Box 9 Skowhegan, ME 04976-0009 Attorney for defendant: Mark V. Franco, Esq., (orally) Thompson & Bowie P O Box 4630 Portland, ME 04112