STEVEN J. McAULIFFE, District Judge.
Plaintiff, Alexandra Drake, worked as a police officer for the Town of New Boston Police Department from June 1, 2013, until June 9, 2015, when she was placed on administrative leave. On December 8, 2015, the New Boston Board of Selectmen terminated her employment. Drake subsequently filed a multicount complaint against the Town of New Boston, New Hampshire (the "Town" or "New Boston"); James Brace, in his official capacity as New Boston's Chief of Police and in his individual capacity; New Boston Board of Selectmen members Dwight Lovejoy, Christine Quirk and Joseph Constance, in their individual and official capacities; New Boston Police Lieutenant Michael Masella, in his individual and official capacities; and Gary Fisher, Chief Deputy Sheriff of the Hillsborough County Sheriff's Department, in his individual and official capacities.
New Boston, Brace, Lovejoy, Quirk and Constance (collectively, the "Town Defendants") have moved to dismiss several of Drake's claims against them. The motion is denied in part, and granted in part.
When ruling on a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must "accept as true all well-pleaded facts set out in the complaint and indulge all reasonable inferences in favor of the pleader."
In other words, "a plaintiff's obligation to provide the `grounds' of his `entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."
"Under Rule 12(b)(6), the district court may properly consider only facts and documents that are part of or incorporated into the complaint; if matters outside the pleadings are considered, the motion must be decided under the more stringent standards applicable to a Rule 56 motion for summary judgment."
Accepting the factual allegations in the amended complaint as true, the relevant background follows. On June 1, 2013, Alexandra Drake was hired as a part-time police officer for the New Boston Police Department; in December 2013, she was hired to work full-time.
Masella was a highly experienced officer, with several years of experience. Before joining the New Boston Police Department, Masella worked for 23 years as an officer with the Nashua Police Department, retiring as a Patrol Sergeant. Before that he served in the United States Marine Corps. During Masella's time with the NBPD, he was quickly promoted to Sergeant, and then Lieutenant. Chief Brace and Masella were close friends; their families vacationed together.
As Drake's Field Training Officer, Masella was tasked with supervising and training Drake in a wide variety of areas including the law applicable to arrests, and searches and seizures; conducting accident investigations, criminal investigations, and motor vehicle stops; report writing; professional demeanor; town policy and prohibited conduct by a police officer; as well as the Standard Operating Procedures of the New Boston Police Department. Masella was also tasked with evaluating Drake's performance. For her part, Drake was "intimidated" by Masella's extensive training and years of service, especially since Masella "made it abundantly clear to [her] that he was not one to confront." Compl. ¶ 31.
Soon after she began working with Masella, Drake noticed Masella was engaging in inappropriate behavior. For example, while field training Drake, Masella conducted traffic stops of female drivers. After completing one such stop, Masella told Drake that, rather than issue a citation, he wanted to take the female driver out and "rape" them. Masella also made comments to Drake about female drivers that he believed found him attractive, and developed what he called a "rapability" scale. After a traffic stop, Masella would test Drake on whether a particular female driver was "rapable." Compl. ¶ 36.
Masella also made inappropriate comments about New Boston Police Department Officers Jennifer Watson and Kate Bragg, both of whom were Drake's senior officers. Masella complained to Drake that Watson "cried all the time," and that Bragg was "full of `drama.'" Compl. ¶¶ 33-34. Masella's comments about Watson and Bragg made Drake "self-conscious as to how Masella would view her," Compl. ¶ 33, and "convinced [her that] she did not want to get on Masella's bad side," as she was "certain . . . the slightest slip could make her a target of severe harassment, termination of employment or even rape." Compl. ¶ 37.
In September of 2014, Drake brought a report concerning a DWI arrest she had conducted to Masella for review. Drake's report was an internal document, not to be released outside the police department without Masella's or Chief Brace's approval. After reviewing the report, Masella ordered Drake to add certain information into the report "for the benefit of the defense attorneys." Compl. ¶ 57. Masella had requested that Drake make similar corrections in the past; however, this time his requested modification was not factually correct. Nonetheless, Drake complied with Masella's order and modified the report.
In November of 2014, Drake and two other New Boston officers stopped a U-Haul truck driver for erratic operation. The driver, who was placed in protective custody, was carrying a large amount of cash. Drake was charged with counting that cash on video camera at the New Boston Police Station for documentation purposes. Masella ordered Drake to write the police report for all three officers present at the scene, which was contrary to the police department's standard practice (which required each police officer to write his or her own report). Speaking with Drake later about the stop, Masella asked Drake whether she had included in her report that she had counted the cash on video camera. When Drake indicated that she had not yet completed her written report, and still needed to include the documentation of the cash, Masella "lashed out" at Drake, calling her a "liar." Compl. ¶ 44.
Drake was generally reluctant to report Masella's conduct because of Masella's status within the NBPD, and his close friendship with Chief Brace. After Masella was promoted to Sergeant, he made comments to Drake concerning Officer Watson, making clear his dislike of Watson, suggesting that Watson would be terminated. Shortly after Masella made those comments, Watson was summarily terminated by the NBPD.
Nonetheless, after the November 2014 U-Haul incident, Drake, upset that Masella had called her a "liar," reported the incident to Chief Brace. She explained to Brace that she was distressed that Masella had questioned her integrity. Chief Brace told Drake that she needed to follow the chain of command, and raise her concerns directly with Masella. At that point, "Drake realized it would be futile to take any matters to [Chief] Brace regarding Masella's conduct;" and, she was afraid to raise her concerns directly with Masella because of Masella's treatment of employees he did not like (like Watson). Compl. ¶ 45.
Shortly after the November 2014 U-Haul incident, Drake spoke with Kathleen MacDonald, a records clerk for the NBPD, regarding her concerns about Masella. MacDonald told Drake that "it was known" that Masella made inappropriate sexual comments towards Drake, other members of the NBPD, and female motorists. However, MacDonald warned, if Drake complained to Masella or Chief Brace about those comments, Masella and Chief Brace would make Drake's life a "living hell." Compl. ¶ 46.
Masella's inappropriate conduct continued. In December of 2014, Drake, off duty, ran into Masella at a local bank. Drake was wearing a pair of sweatpants with "Pink" imprinted on the rear. Masella questioned Drake's choice of attire, asking her "Pink . . . are you trying to get the guys to look at your *ss," making clear to Drake that he was looking at her buttocks. Compl. ¶ 48. He then told Drake he had a similar pair of sweatpants, but his read "Juicy."
Masella's "on duty" conduct was no better. While Drake was present, Masella spoke negatively about other NBPD officers (including Drake's immediate supervisor Sergeant Richard Widener) to a member of another law enforcement agency, telling Drake to "keep her f*cking mouth shut." Compl. ¶ 47. He yelled out "f*cking women" while working with Drake, but assured Drake that she "did not count." Compl. ¶ 49. Masella also told Drake that there were two groups of officers working at the NBPD, and that the second group of officers, including Officer Watson, would not be working there much longer (because Masella did not want them working there). (As mentioned above, Officer Watson was terminated by the NBPD; the other officer whose name was included in Masella's second group resigned.)
After Watson's termination, Masella (and Chief Brace) asked Drake to lie to Watson to obtain information about a case Watson had been handling prior to her termination. Brace and Masella instructed Drake to falsely tell Watson that Drake was working on a particular case.
Finally, on multiple occasions, Masella invited Drake to his home in Florida for the weekend (but did not invite other NBPD officers to his Florida residence).
In February of 2015, Drake spoke with patrolman Daniel Aiken about Masella. Aiken stated that they both had a duty to report Masella's misconduct, and so together they reported Masella's behavior to Sergeant Widener. Sergeant Widener "was already aware of the complaint," and told Aiken and Drake he would take care of it. At that time, Drake also told Widener that Masella had ordered her to falsify a police report in September 2014. Widener told Drake he "was disgusted," and would handle the matter. However, Widener did not report Masella's misconduct at that time.
A month later, in March of 2015, Masella, on duty in uniform and driving a police cruiser, came to Drake's home, uninvited, while she was off duty. When Drake, who lived alone, opened the door, Masella asked if she was naked. When Drake responded that she was not, Masella joked he would come back later. He then let himself into Drake's house, and began to discuss his new car.
In April of 2015, Drake applied for a police officer position with the Manchester, New Hampshire, Police Department. She excelled in the application process, which included a polygraph test. During the pre-polygraph interview, Drake told the examiner that, in September of 2014, Masella instructed her to falsify a DWI report, and she had complied with that instruction. Drake also reported that she was being "wrongfully targeted." Compl. ¶ 59. Drake was scheduled to meet with the Manchester Chief of Police (who contacted her directly to inform her that the Manchester Police Department was "expediting her hiring process to get her out of New Boston as quickly as possible before her career would be sabotaged") in mid-June as the final step of the hiring process.
At a meeting with Chief Brace on April 17, 2015, Drake spoke with him about morale issues within the New Boston Police Department, and told him there was "a lot of negativity regarding the upper echelon of the police department." Compl. ¶ 60. She told Chief Brace that Masella spoke unfavorably about NBPD patrol officers, especially female officers, that Masella had belittled her about her report writing in front of other employees, and again mentioned that Masella had called her a "liar" following the U-Haul truck stop. Again, Chief Brace told Drake that she should follow the chain of command, and raise those issues directly with Masella.
On April 24, 2015, over two months after Drake and Aiken had reported Masella's conduct to Widener, Sergeant Widener filed a complaint against Masella with Chief Brace regarding Drake's allegations of Masella's sexual harassment and the September 2014 DWI report.
That night, Chief Brace sent a department memo to all employees, stating that Drake had raised concerns about officer morale. He dismissed those concerns as "baseless," writing: "I heard some rumors today that are simply not true." Compl. ¶ 70. The very next day, Drake's work schedule was modified from the day shift to the midnight shift, effective immediately (despite the fact that Drake had been scheduled to work the day shift through July 4, 2015). Chief Brace wrote a memo to Drake, stating that her schedule change was in the "best interests" of the NBPD, and that she would not be with the NBPD much longer. As of June 25, 2015, (Drake's purported start date with the MPD), Drake was removed from the schedule. Chief Brace told Drake that, if "things changed" (with respect to her application with the MPD), she would be added back to the schedule. Compl. ¶ 75.
In early May of 2015, MacDonald spoke with Chief Brace regarding Masella's inappropriate conduct towards Drake and other female employees of the NBPD. Rather than investigating MacDonald's complaint as required, Chief Brace told MacDonald "if Drake wanted to go down the road of a sexual harassment investigation that `we' will deal with it with a `rebuttal.'" Compl. ¶ 72. "Rebuttal" was a term Chief Brace used to denote "an attack on the complainant's character, history, [and] performance," designed to undermine the complainant's credibility.
Around May 22, 2015, after Drake had worked a 10-hour midnight shift, Chief Brace called her to a conference room, purportedly to conduct an internal investigation into Masella's sexual harassment. Instead, Chief Brace was initiating an internal investigation of Drake arising out of Masella's allegation that Drake had altered the September 2014 DWI report ("September 2014 Report") on her own. Brace did not inform Drake of her Miranda rights or give her a Garrity Warning,
Chief Brace then left for vacation in Aruba with Masella. On June 3, 2015, while in Aruba with Masella, Chief Brace arranged a meeting with Jane Young, Assistant Attorney General of the New Hampshire Attorney General's office, and Dennis Hogan, Hillsborough County Attorney for June 8, 2015, to discuss whether Drake should be placed on the "Laurie List" as a result of the September 2014 Report.
On June 8, 2015, Drake filed a charge of discrimination with the New Hampshire Commission for Human Rights and the United States Equal Employment Opportunity Commission.
On June 9, 2015, following Brace's meeting with Young and Hogan, he again interviewed Drake. At that time, Brace read Drake the Garrity warning, but did not provide authorization from the New Hampshire Attorney General's office or the Hillsborough County Attorney's office granting her immunity for her statements (as was protocol). And, despite Drake's repeated requests, Brace refused to allow Drake's counsel to be present. Chief Brace informed Drake that the investigation was internal, not criminal, but then stated that the New Hampshire Attorney General's office and the Hillsborough County Attorney's office were investigating as well (making clear that a criminal investigation had, in fact, been undertaken). Following the interrogation, Brace informed Drake that she was being placed on administrative leave pending the outcome of Fisher's investigation. Masella was not placed on administrative leave.
Brace subsequently contacted the attorney representing the defendant in the September 2014 Report incident, and informed that attorney that Drake was involved in an internal investigation relating to the DWI arrest report.
On July 23, 2015, Brace wrote to Hogan concerning the timing of the issuance of Drake's "Laurie Letter." Brace stated that, after receiving Drake's complaint with the EEOC and NH Human Rights Commission, he had met with the New Bedford Town Attorney. He wrote to Hogan: "Town counsel recommended we proceed cautiously with each and every step as we move forward. They suggest that if [the Police Department] were to issue a [Laurie Letter] before the [internal] investigation is concluded, it would create an appearance that the Town pre-disposed the case without reviewing the facts." Compl. ¶ 92. Brace further wrote Hogan that the Town would defeat Drake's sexual harassment complaint, since her complaint was a "ruse" to protect Drake from disciplinary action relating to the September 2014 Report.
Then, on July 28, 2015, Brace emailed Assistant County Attorney Maureen O'Neil, indicating that Drake's "Laurie Letter" should be issued to the County Attorney, despite the fact that Fisher's internal investigation had not yet been completed. Brace wrote, "Drake and Attorney Soltani have created a situation that anything we do will be viewed as retaliation and discriminatory." Compl. ¶ 95.
Fisher's investigation was completed in early October 2015. However, throughout the investigation, Fisher regularly sent drafts of his report to Chief Brace for review and revision. Fisher and Brace also had several phone conversations concerning the investigation. Brace was permitted to modify Fisher's draft reports, and to "control the direction of the investigation." Compl. ¶ 97.
On December 8, 2015, Brace appeared at Drake's home in uniform, in a police cruiser. He informed Drake that the encounter was being audio recorded via the police cruiser's recording system, and that he was delivering documentation, including his recommendation that she be terminated. He handed Drake an envelope containing two letters, both addressed to Drake and written by Brace. The first letter notified Drake that Brace would be recommending her termination from the New Boston Police Department for filing the false September 2014 Report.
The second letter was a "written warning" to Drake for purportedly violating New Boston's sexual harassment policy. The letter stated that, because Drake had no prior disciplinary action in her personnel file, Brace was issuing a written warning for what was characterized as a "level two" offense. The warning required Drake's attendance at a "sexual harassment in the workplace" training, as well as departmental training with Brace concerning New Boston's procedures relating to sexual harassment. The written warning states: "While there is clear evidence that mutual behaviors occurred between you and Masella, the sexual jokes or comments discussed within the report are not appropriate and cannot be tolerated in the workplace." Compl. ¶ 106.
Drake exercised her right to a hearing before New Boston's Board of Selectmen. Prior to the hearing, Drake requested the December 8, 2015, audio recording Brace had referenced. The Town denied that any such audio recording existed. On December 8, 2015, following a hearing, the town terminated Drake's employment.
Masella was not disciplined for ordering Drake to modify the September 2014 Report, or for releasing the report outside the NBPD. And, with respect to Masella's additional offensive and inappropriate conduct, Brace testified during Drake's termination hearing that he had "talked to" Masella concerning the "mutual behaviors." Compl. ¶ 107.
Despite Drake's earlier assurances of employment from the Manchester Police Department, Brace, Masella and Fischer led the Manchester Police Department to believe that Drake lacked credibility, and would be placed on "Laurie's List." As a result, Drake's job offer from the MPD failed to materialize.
On June 8, 2016, Drake filed a second charge of discrimination with the NH Human Rights Commission and the EEOC. She subsequently filed this suit, asserting claims against the Town, its Selectmen, Brace, Fisher, and Masella for: civil conspiracy, defamation, interference with contractual relationship, intentional infliction of emotional distress, negligent infliction of emotional distress, violation of New Hampshire's whistle-blower statute, civil rights violations, wrongful termination, violation of New Hampshire's Law Against Discrimination, Title VII violations, violation of NH RSA 98-E, intentional interference with prospective contractual relations, and violation of NH RSA 41:48.
The Town Defendants' motion to dismiss followed.
Before reaching the merits of the Town Defendants' arguments, the court must first address the parties' arguments regarding consideration of documents outside the pleadings.
In support of their motion to dismiss, the Town Defendants cite to the June 8, 2015, charge of discrimination filed by Drake, which they contend the court may consider because Drake relies upon the charge, and specifically references it in the complaint. Drake responds that her complaint merely mentions the charge of discrimination, which, she argues, is not "sufficient reference." Obj. to Mot. to Dismiss at p. 3. However, she argues, if the court determines that the charge of discrimination can be considered, the Town Defendants' motion should be converted to one for summary judgment, and the court should then consider those additional documents constituting the administrative record before the New Hampshire Commission for Human Rights.
As noted earlier, "[o]rdinarily . . . any consideration of documents not attached to the complaint, or not expressly incorporated therein, is forbidden, unless the proceeding is properly converted into one for summary judgment under Rule 56.
Drake refers to the charge of discrimination in her complaint on multiple occasions, and, as the Town Defendants point out, the charge is a central part of her retaliation claims against the defendants.
Moving on to the merits of the Town Defendants' argument, the court first addresses Drake's civil conspiracy claim. In support of that claim, Drake alleges that Brace, Masella, and Fisher entered into "overt or covert" agreements to "file false complaints against Drake, coerce or facilitate coverups, obfuscate, or delay the discovery of truth" in an effort to conceal Masella's illegal conduct, and engaged in acts to,
Under New Hampshire law, the "essential elements" of civil conspiracy are: (1) two or more persons; (2) an object to be accomplished (i.e., an unlawful object to be achieved by lawful or unlawful means, or a lawful object to be achieved by unlawful means); (3) an agreement on the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof.
Drake never squarely alleges that Brace, Masella and Fischer agreed to undertake a joint course of action. Instead, she asks the court to infer from the complaint that a tacit agreement existed between the three. She points to a series of allegations that she says support an inference that an agreement existed between them. Bluntly put, those factual allegations do not support her argument. Drake's complaint is utterly lacking any factual allegations that would support a plausible inference that Brace, Fisher and Masella entered into an agreement to conspire against her. For that reason, the Town Defendants' motion to dismiss the conspiracy claim against Brace is granted, albeit without prejudice. To the extent Drake can plausibly, and in good faith, assert factual allegations that would support a cognizable claim for civil conspiracy, she may file a motion to amend her complaint within 30 days of the date of this order.
The Town, Brace, Lovejoy, Constance, and Quirk have moved to dismiss Drake's defamation claim against them. Drake agrees that her defamation claim against these defendants should be dismissed.
The Town Defendants have also moved to dismiss Drake's intentional interference with a contractual relationship claim against Brace.
In order to state a claim for intentional interference with contractual relations under New Hampshire law, Drake must allege that: (1) she had a contractual relationship with a third party; (2) defendants knew of that contractual relationship; (3) defendants wrongfully induced the third party to breach the contract; and (4) Drake's damages were proximately caused by defendants' interference.
In support of her claim, Drake alleges that Brace, Masella and Fisher knowingly and wrongfully interfered with her employment relationship with the Town of New Boston. The Town Defendants argue that the claim against Brace must be dismissed because: (1) Brace merely reported truthfully to the Town that Drake lied on a police report (which Drake concedes in her complaint); (2) Brace was privileged to act on behalf of the Town to investigate Drake's conduct, and recommend her termination; and (3) because Brace acted as the Town's agent and Drake's co-employee, there was no "third person" contract with which Brace could interfere.
The Town Defendants' arguments are unconvincing. In response to the Town Defendants' first argument, Drake notes that she has alleged that Brace "did more than mere honest recitation of the whole truth." Obj. to Mot. to Dismiss at p. 11. The court agrees. Drake alleges multiple acts by Brace which she contends interfered with her contractual relationship with the Town of New Bedford, including Brace's purported failure to comply with Town policies and procedures when investigating the September 2014 Report and Drake's allegations against Masella.
The Town's second argument is similarly unpersuasive. The Town relies on the Restatement (Second) of Torts § 770, which states: "One who, charged with responsibility for the welfare of a third person, intentionally causes that person not to perform a contract . . . does not interfere improperly with the other's relation if the actor (a)
The Town's third argument, that, because Brace acted as the Town's agent and Drake's co-employee, there was no "third person" contract with which Brace could interfere also fails. The Town is correct that, generally, "[i]n the context of interference with an employment contract by a fellow employee, an employer may be a third party only if the fellow employee was acting outside the scope of his employment."
For all those reasons, the Town Defendants' motion to dismiss Drake's intentional interference with contractual relationship claim against Brace is denied.
The Town Defendants have moved to dismiss Drake's intentional infliction of emotional distress claim against them on two bases. First, the Town Defendants argue that Drake's intentional infliction claim against the Town fails because it is barred by the exclusivity clause in the workers' compensation law. Drake does not object to dismissal of her claim against the Town.
Second, the remaining Town Defendants argue that Drake has not stated a claim against them because she has not sufficiently alleged extreme and outrageous conduct by Brace or the Selectmen. Drake disagrees, relying on
"In order to make out a claim for intentional infliction of emotional distress, a plaintiff must allege that a defendant `by extreme and outrageous conduct, intentionally or recklessly cause[d] severe emotional distress to another.'"
As a preliminary matter, "[c]ourts have rarely found workplace misconduct sufficiently outrageous to constitute intentional infliction of emotional distress."
Drake's reliance on
That is true of Drake's allegations in support of her claim against the Selectmen as well. Drake alleges that the Selectmen wrongfully terminated her employment, and failed to take action against Masella. Those allegations do not come close to meeting the requisite "atrocious or utterly intolerable" standard.
Accordingly, the Town Defendants' motion to dismiss Drake's intentional infliction of emotional distress claim against the Town, Brace and the Selectmen is granted.
Drake does not object to dismissal of this claim.
The Town Defendants have also moved to dismiss Drake's Section 1983 claims against them. Drake asserts a procedural due process claim, a substantive due process claim, and a claim for violation of her First Amendment rights.
In support of her procedural and substantive due process claim, Drake alleges that she had a property interest in her position as a police offer, a liberty interest in pursuing and engaging in her chosen profession, and a right to avail herself of all internal, administrative and legal remedies.
She alleges that, pursuant to the Town's written policies and procedures, as well as the Standard Operating Procedures of the New Boston Police Department, she was entitled to "fair treatment," and a "truthful, fair, speedy, prompt and impartial investigation" required to be completed within 30-days. Compl. ¶ 159. Instead, Drake alleges, the investigation took five months, and was not impartial because Brace had "full access and exercised continuous influence" throughout the investigatory process. Compl. ¶ 160. She further alleges that, while the investigation was pending and she was on administrative leave, she did not receive "overtime, detail pay or holiday pay she was routinely accustomed to receiving," which reduced the value of her pension. Compl. ¶ 166-167. And, Drake says, the Town, the Selectmen, and Brace did not follow "appropriate procedures" "that were in place" when terminating her employment. Compl. ¶ 168. Thus, Drake says, she was deprived of her liberty and property interests without due process.
The Town Defendants contend that Drake has not stated a procedural due process claim because her allegations demonstrate that, prior to termination of her employment, the Town provided Drake with the procedural guarantees to which she is entitled as a public employee: notice, an explanation of the employer's evidence against her, and an opportunity to present her side of the story.
Drake concedes that she was given notice of a hearing, an opportunity to testify, and was allowed to cross examine Brace and Masella. However, she argues, the process she received was "corrupt." Obj. to Mot. to Dismiss at p. 17. In support of that argument, she points to her allegations regarding the partiality and bias of Fisher's purportedly independent investigation (which, she contends, the Selectmen accepted as impartial), including Brace's alleged involvement in reviewing and revising drafts of the investigation report. She argues that the "entire proceeding was pre-determined and engineered by Brace with the all too willing assistance of Masella and Fisher." Obj. to Mot. to Dismiss at p. 18.
To state a procedural due process claim, a plaintiff must allege deprivation of a protected liberty or property interest by the defendants without constitutionally adequate process.
It is evident from Drake's complaint that she received notice, an explanation of the evidence against her, and an opportunity to present her side of the story.
Drake does not allege that she was deprived of the opportunity to put her facts before the decisionmakers at her termination hearing before the Selectmen.
Instead, Drake's allegations of bias and impartiality relate to Fisher's investigative process, including Brace's purported involvement, and the investigative report. But, "[a] person who investigates and presents an agency's case, unlike a decisionmaker, does not have to be neutral."
For all those reasons, Drake's allegations are not sufficient to support a claim of a violation of her due process rights.
The Town Defendants also contend that Drake has not stated a substantive due process claim. Such claims, they say, are limited to government action that is conscious-shocking, and Drake's allegations do not come close to meeting that standard. The court agrees that Drake has not pled facts sufficient to support a substantive due process claim.
"The constitutional guarantee of substantive due process `functions to protect individuals from particularly offensive actions on the part of government officials.'"
The "hallmark" of a successful substantive due process challenge "is an extreme lack of proportionality, as the test is primarily concerned with violations of personal rights so severe, so disproportionate to the need presented, and so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience."
Viewing this body of law from a slightly different perspective, the court of appeals has collected representative cases in which the plaintiffs did state a viable substantive due process claim:
Drake's complaint groups her substantive due process claim together with her procedural due process and First Amendment claims, with no effort to identify exactly what specific allegations she believes support her substantive due process claim. However, in her brief, Drake argues that the following allegations constitute "truly horrendous" conduct, and support her claim: (1) "a superior officer, charged with upholding and enforcing the laws of [the] state," ordered "a subordinate to falsify a police record;" (2) a female officer was terminated for a violation for which a male officer received no discipline; (3) a female officer was interrogated about a sexual harassment complaint in the presence of the perpetrator; and (4) a female officer was unjustly deprived of ever working as a police officer because she followed a superior officer's orders. Obj. to Mot. to Dismiss at pp. 18-19.
With respect to the Town Defendants, Drake alleges that they retaliated against her after she reported Masella's improper conduct, resulting in an unfair investigation into her allegations and conduct, and ultimately her wrongful termination. Assuming that the Town Defendants' conduct was motivated by bad faith, courts have found such allegations insufficient to give rise to a substantive due process claim.
Similarly, Drake's allegations that she was ordered to falsify the September 2014 Report are insufficient to sink to the "conscious shocking" level of a substantive due process violation. Drake fails to cite a single case that would bolster her position that such conduct was sufficiently egregious as to shock the conscious. And, as stated by the court in
Accordingly, the Town Defendants' motion to dismiss Drake's substantive due process claim against them is granted.
Finally, the court addresses the Town Defendants' motion to dismiss Drake's First Amendment claim. In support of that claim, Drake alleges that she has a constitutional right to engage in free speech "without being ordered to lie," and a right to "report violations of the law." Compl. ¶ 164. She says that defendants' actions deprived her of that right, but does not specify exactly which actions taken by the defendants operated to deprive her of her First Amendment rights, or even exactly how she was deprived of those rights. But, read generously, the gist of Drake's First Amendment claim seems to be that, because she reported misconduct by Masella and Brace, the defendants retaliated against her, ultimately terminating her employment.
The Town Defendants argue that Drake has not stated a claim for violation of her First Amendment rights because she has not adequately alleged that she was speaking as a "citizen." They contend that Drake's allegations of punished speech (being ordered to lie on a police report, and reporting alleged violations of law) were all made in her official capacity as a police officer.
While not entirely clear from her complaint, Drake seems to allege two instances of protected speech: (1) her reporting of Masella's misconduct to her superior officers (in order to, she alleges, "carry out her duties as a police officer," Compl. ¶ 164); and (2) her reporting of misconduct by Masella and Chief Brace when she filed a charge with the New Hampshire Human Rights Commission and the EEOC (the "EEOC charge"). In both instances, Drake says, she was speaking as a citizen, as she was not expected to report misconduct by Brace and Masella to "co-workers, [Brace], [an] investigator, the selectmen, state or federal agencies, or attorneys" as part of her official responsibilities.
"[T]he First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . for speaking out."
Our court of appeals has articulated a three-part inquiry "[t]o determine whether an adverse employment action against a public employee violates her First Amendment free speech rights."
The Town Defendants seemingly do not dispute that Drake's reporting of Masella's purported misconduct involved a subject of public concern. It likely was.
Next, it must be asked whether Drake, when reporting Masella's misconduct to her superior officers, was speaking in her capacity as a private citizen. To determine "whether speech is made pursuant to [an] employee's official duties," the "court must ask, `what are the employee's official responsibilities?,' and second, `was the speech at issue made pursuant to those responsibilities?" Decotiis, 635 F.3d at 31.
Here, Drake herself alleges that she reported the alleged misconduct
Moving on to Drake's filing of the EEOC charge, whether that reporting can be characterized as a matter of public concern is a closer call. Generally, courts that have considered whether an EEOC charge is protected speech "have eschewed a per se rule against finding such speech is or is not protected, and have instead considered, on a case-by-case basis, whether the nature and content of the EEOC charge at issue relate only to matters directed [at] the employee's self-interest or employment conditions, which are not matters of public concern, or whether the charge relates to or includes other matters which are legitimate matters of public concern."
Thus, whether an EEOC charge constitutes a purely personalized grievance requires a highly fact-based analysis. Drake's complaint fails to allege facts that would support a plausible inference that her EEOC charge constituted speech on a matter of public concern. And, her brief fails to address — or even identify — the issue. "In opposing a Rule 12(b)(6) motion, a plaintiff cannot expect a trial court to do his homework for him. Rather, the plaintiff has an affirmative responsibility to put his best foot forward in an effort to present some legal theory that will support his claim."
Accordingly, Drake's First Amendment claim is dismissed, albeit without prejudice to filing a motion to amend the complaint to add such a claim, if she can do so in good faith. In that event, counsel should be prepared to file a thorough and pertinent memorandum of law fully discussing the legal tests applicable in determining the viability of such a claim.
Drake alleges that the individually named defendants conspired to deprive Drake of her procedural rights, and her property and liberty interests, in violation of the First, Fifth and Fourteenth Amendments.
The Town Defendants move to dismiss Drake's federal conspiracy claim, arguing that she has not alleged facts sufficient to show (1) an agreement between the defendants to deprive her of rights; or (2) deprivation of her civil rights, and, therefore, has not stated a claim. The court agrees, and therefore grants the Town Defendants' motion to dismiss Drake's federal conspiracy claim.
In support of her RSA 354-A claim, Drake alleges that the named defendants unreasonably interfered with her work performance by making inappropriate sexual comments with the intent to create a hostile work environment, or by aiding and abetting that conduct. She says that, through that conduct, the named defendants created a hostile work environment. Drake further alleges that, when she reported that conduct by filing a charge with the EEOC and New Hampshire Human Rights Commission, the individual defendants retaliated against her by orchestrating a biased investigation into her complaint that ultimately led to her termination.
The Town Defendants contend that Drake's RSA 354-A claims against Brace, Lovejoy, Quirk and Constance should be dismissed because she has not exhausted her administrative remedies. Drake, the Town Defendants say, filed her charge with the EEOC and New Hampshire Human Rights Commission against the Town and the New Boston Police Department, not against the Selectmen or Brace. Because Drake failed to name those defendants in her administrative complaint, the Town Defendants contend that the court must dismiss Drake's RSA 354-A claims against the individual defendants for failure to exhaust available administrative remedies.
To bring a claim under New Hampshire's Law Against Discrimination, a party must first timely file a complaint with the New Hampshire Human Rights Commission.
"The New Hampshire Supreme Court has not had occasion to consider whether there are any exceptions to RSA 354-A's charging requirement."
"[A] plaintiff generally may not maintain a suit against a defendant in federal court if that defendant was not named in the administrative proceedings and offered an opportunity for conciliation or voluntary compliance."
So too, here. Neither Drake nor the Town Defendants squarely mention the "identity of interest" exception in their briefing, much less provide the requisite factual support for their arguments. As in
The Town Defendants further argue that Drake's RSA 354-A claim against the Selectmen should be dismissed because she fails to allege facts that implicate those defendants in the purported harassment and retaliation. That argument is similarly unpersuasive. While Drake's allegations in support of her claims against the Selectmen are unarguably meagre, they are, at this stage of the litigation, sufficient to withstand the Town Defendants' motion to dismiss.
Drake concedes that her Title VII claim can only proceed against the Town, and she agrees to dismissal against all other defendants.
Drake alleges that she reported her concerns regarding purported "illegal and unethical activities" to her supervisors, the Town Board of Selectmen, and the Manchester Police Department. She says that by reporting that conduct, she was furthering public policies and invoking her freedom of expression. Drake alleges that the Town's behavior constitutes interference with her right to free speech, and to criticize and/or disclose information, in violation of NH RSA 98:E-1.
New Hampshire RSA 98:E-1 provides that "a person employed as a public employee in any capacity shall have a full right to publicly discuss and give opinions as an individual on all matters concerning any government entity and its policies." N.H. Rev. Stat. Ann. § 98-E:1. "The chapter prohibits a person from `interfer[ing] in any way with the right of freedom of speech, full criticism, or disclosure by any public employee.'"
The parties dispute whether Drake's conduct is covered by the statute. The Town Defendants argue that Drake does not sufficiently allege that she was speaking as "an individual," nor does she allege that she publically discussed her concerns. Drake disagrees.
Unfortunately, neither parties' briefing addresses these issues sufficiently to allow the court to resolve the controlling question of law. Given the scarcity of state precedent interpreting RSA 98:E-1 and the absence of developed arguments, the court declines to wade into (likely novel) issues of controlling state law without the benefit of adequate briefing. Accordingly, the court denies the Town Defendants' motion to dismiss the claim. The Town Defendants are, of course, free to raise the issue at the summary judgment stage, supported by a fully developed record and briefing.
The Town Defendants have also moved to dismiss Drake's intentional interference with contractual relations claim against them. In support of her claim, Drake alleges that defendants "purposely caused" the City of Manchester from entering into an employment agreement with her. The Town Defendants argue that Drake's claim against the Town is barred by the workers' compensation law. Drake disagrees.
The New Hampshire Supreme Court has held that for an injury to be subject to the state's workers' compensation law, the party seeking such coverage must prove:
The Town Defendants further argue that Drake has not sufficiently alleged causation. They point out that Drake fails to even allege contact between the relevant parties, or the requisite intent. Again, the argument is unpersuasive. Drake alleges that she was "all but assured employment" by the Manchester Police Department, and, inter alia, that Brace, Masella and Fisher "caused [the Manchester Police Department] to believe that Drake lacked credibility and would be [placed] on the "Laurie List."
Finally, the Town Defendants have moved to dismiss Drake's claim for violation of RSA 41:48. Drake agrees to dismissal of the claim.
For the foregoing reasons, as well as those set forth in the Town Defendants' memoranda (documents no. 8-1 and 16), the Town Defendants' motion to dismiss (document no. 8) is