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Carney v. Town of Weare

United States District Court, D. New Hampshire

February 21, 2017

James J. Carney
v.
Town of Weare, et al. Opinion No. 2017 DNH 031

          Thomas M. Closson, Esq., Brian J.S. Cullen, Esq., Russell F. Hilliard, Esq., Daniel P. Schwarz, Esq., Tony F. Soltani, Esq., Laura Ann Spector, Esq., Wendy L. Spillane, Esq.

          ORDER

          Landya McCafferty, United States District Judge

         James J. Carney brings suit against the Town of Weare (“the Town”), its Board of Selectman, its Town Administrator, several of its police officers, and its legal counsel, Mark Broth, alleging state and federal claims arising from his employment as an officer in the Weare Police Department. The defendants move for judgment on the pleadings on several of Carney's claims. Carney objects.

         Legal Standard

         In assessing a motion for judgment on the pleadings, the court construes “all well-pleaded facts in the light most favorable to the non-moving party and draw[s] all reasonable inferences in that party's favor.” Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d 134, 140 (1st Cir. 2016). Judgment on the pleadings is appropriate if “the complaint fails to state facts sufficient to establish a claim to relief that is plausible on its face.” Id. The standard “is the same as that for a motion to dismiss under Rule 12(b)(6).” Frappier v. Countrywide Home Loans, Inc., 750 F.3d 91, 96 (1st Cir. 2014), cert. denied, 135 S.Ct. 179 (2014).

         Factual Background[1]

         Carney served on the Weare Police Department (“WPD”) for over twenty years, achieving the rank of Lieutenant in 2007. In the summer of 2012, Carney was accused of making harassing telephone calls to Louis Chatel, the plaintiff in a lawsuit against Carney and the Town. Around the same time, Broth, counsel for Carney and the Town in the Chatel case, informed Carney that he was withdrawing as his counsel but would continue representing the Town.

         Later in the fall, the WPD hired an attorney to investigate allegations that Carney had vandalized department property. Broth advised the attorney about the procedures that he should use while conducting his investigation. Carney requested that the subject of the investigation be expanded to include the harassing calls allegation, but Broth and the Town rejected that request.

         In December of 2012, Broth called Carney and questioned him about allegations that Carney disclosed WPD personnel information to outside agencies without proper authorization. Carney alleges that this telephone call was part of an ongoing internal affairs investigation that Broth was conducting against him.

         In January 2013, a WPD officer filed a sexual harassment complaint concerning an incident in which several officers, including Kenneth Cox, Frank Hebert, Kimberly McSweeney, [2] and Brandon Montplaisir, spread rumors about an extramarital affair between Carney and a female Town employee. Cox, Montplaisir, and Hebert used “rude . . . and lewd” terminology to describe the alleged affair. Carney met with WPD Chief, Gregory Begin, and requested an internal investigation concerning the incident.

         On March 1, Broth attended a meeting with Thomas Clow, a member of the Board of Selectman; Naomi Bolton, the Town's Town Administrator; and several WPD employees including Cox, Hebert, McSweeney, Montplaisir, Nicholas Nadeau, and Shelia Savaria (“the Police Defendants”). During that meeting, the Police Defendants raised numerous allegations against Carney. Carney contends that these allegations were false and were the result of a conspiracy among the Police Defendants to cause Carney's termination from the WPD. Carney further alleges that Broth knew that these allegations conflicted with positive testimony about Carney that Cox, Hebert, and Montplaisir gave in the Chatel case.

         Three days later, the Board of Selectman voted to place Carney on administrative leave. Based on orders from Broth and the Town, Begin wrote a memorandum to WPD employees announcing the decision and instructing them not to have any contact with Carney. Carney also received a letter confirming that he was on administrative leave and prohibiting him from contacting any WPD employee except Begin. While on leave, the WPD paid Carney “only 40% of his usual salary.” Doc. no. 21 at ¶ 233.

         On March 28, Broth hired attorney John Vinson to conduct a formal investigation into the allegations concerning Carney. Those allegations included, among other things, claims that Carney threatened to harm WPD employees and a confidential informant, intimidated subordinates, coerced support from coworkers for his appointment to captain, maintained an inappropriate intimate relationship with a WPD employee, and shared WPD personnel information with subordinates and third parties. Broth placed his advice to Vinson about how to conduct the investigation in a letter, which, Carney contends, contained legally erroneous instructions.

         Carney alleges that the investigation was procedurally flawed and was a delay tactic on the part of Broth and the Town “to force Carney out of the workforce.” By July 1, 2013, the WPD had not notified Carney about the results of the investigation. At that time, Carney, who was still on administrative leave, resigned from the WPD. Carney alleges that the stress and uncertainty of the investigation forced him to resign. Five months later, Carney filed a complaint with the New Hampshire Commission for Human Rights alleging that he was sexually harassed and that Weare and the WPD, through launching an internal investigation and placing him on administrative leave, had illegally retaliated against him.

         Carney then brought this suit against the following defendants: the Town; Broth; the Police Defendants; Bolton; and the members of the Weare Board of Selectmen, Richard W. Butt, Keith Lacasse, John C. Lawton, James Leary, and Clow.[3] Carney's complaint alleges a variety of claims against these defendants under common law, federal civil rights laws, and New Hampshire Statutes, including claims for:

• civil conspiracy against Broth and the Police Defendants (Count I)
• defamation against all defendants (Count II)
• interference with a contractual relationship against Broth, the Police Defendants, and the Individual Town Defendants (Count III)
• intentional infliction of emotional distress against all defendants (Count IV)
• negligent infliction of emotional distress against Broth, the Individual Town Defendants, and the Police Defendants (Count V)
42 U.S.C. § 1983 claim for violation of Carney's First Amendment Rights against the Town, Broth, and the Individual Town Defendants (Count VI)
• § 1983 claim for violation of due process against the Town, Broth, and the Individual Town Defendants (Count VII)
• § 1983 claim for conspiracy to violate civil rights against all defendants (Count VIII)
• wrongful termination against The Town (Count IX)
• sexual discrimination, retaliation, and aiding and abetting claims against all defendants under New Hampshire's Law Against Discrimination, RSA 354-A (Count X)
• violation of New Hampshire's Whistle Blower Protection Act, RSA 275-E against the Town (Count XI)
• gender discrimination and retaliation against the Town under Title VII, 42 U.S.C. § 2000e-2 (Count XII)
• violation of New Hampshire's Employee Freedom of Expression Law, RSA 98-E against the Town (Count XIII)[4]

         Discussion

         The Town, Broth, the Police Defendants, and the Individual Town Defendants each move separately for judgment on the pleadings on several of Carney's claims. For clarity's sake, the court will address the motions for the Town, the Police Defendants, and the Individual Town Defendants (doc nos. 35, 36, 37), all of which raise overlapping issues, separately from Broth's motion (doc. no. 31).

         I. Motions for the Town, Police Defendants, and Individual Town Defendants

         Although the motions for the Town, the Police Defendants, and the Individual Town Defendants differ in substance, the arguments therein fall into the following general categories:

• Preclusion Arguments: The Town, the Police Defendants, and the Individual Town Defendants move for judgment on the pleadings on Carney's claims for wrongful termination and interference with a contractual relationship, arguing that an arbitration decision between the Town and Carney's union precludes those claims.[5]
• Sexual Harassment Claims: The Police Defendants and the Individual Town Defendants each move for judgment on Carney's claims under RSA 354-A, arguing that the complaint does not allege actionable sexual discrimination and that Carney did not exhaust his administrative remedies. The Town moves for judgment on the pleadings on Carney's sexual harassment claims against it, also arguing that Carney has not alleged actionable sexual harassment.
• Defamation Claims: The individual town defendants also move for judgment on the pleadings on Carney's claims for defamation, arguing that Carney has failed to plead that they published any statements about him.

         In response to the Police Defendants' motion, Carney filed an objection on August 1, 2016. See doc. no. 40. Because that objection attached an exhibit containing personal identifiers, Carney refiled his objection with a redacted exhibit on August 6 (see doc. no. 46). The objection that Carney filed, however, was substantively different from the first objection that Carney filed five days earlier. Carney contends that this was because that document “was not the final product, but the draft which was mistakenly filed.” Doc. no. 60. Carney's counsel “refiled” the objection without notifying the court or the Police Defendants' counsel that he was filing a substantively different objection. Carney's decision to file a different objection and the accompanying omission of that fact is an end around the applicable deadlines for responding to dispositive motions. Accordingly, the court will only consider material in Document no. 46 to the extent that material was included in Document no. 40.

         A. Preclusive Effect of Arbitration Award

         The Town moves for judgment on the pleadings on Carney's claim for wrongful termination, arguing that the claim is barred by the doctrine of res judicata. In support, the Town attaches a decision in an arbitration between AFSCME, Carney's union, and itself, which, the Town contends, determined that Carney voluntarily resigned from the WPD and was not discharged. Doc. no. 36-2. Similarly, the Police Defendants and Individual Town Defendants move for judgment on the pleadings on Carney's claims for interference with a contractual relationship, arguing that the arbitration award is determinative of an essential element of those claims: whether the Town breached its employment contract with Carney. In support, those defendants also attach the arbitration decision to their motions. Doc. no. 35-2. In response, Carney argues that the arbitration award cannot be considered at this stage of the litigation and that the award is misleading because it does not include the entire arbitration record. Carney further contends that the arbitration award is not preclusive and that it is appealable.

         1. Consideration of the Arbitration Award

         On a motion for judgment on the pleadings, the court “ordinarily may consider only facts contained in the pleadings and documents fairly incorporated therein, and those susceptible to judicial notice.” Mercury Sys., Inc. v. S'holder Representative Servs., LLC, 820 F.3d 46, 51 (1st Cir. 2016). Federal Rule of Evidence 201 governs whether a fact is judicially noticeable. Under Rule 201, a court “may judicially notice a fact that is not subject to reasonable dispute because it . . . is generally known within the trial court's territorial jurisdiction . . . or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(1)&(2). “The party requesting judicial notice bears the burden of persuading the trial judge that the fact is a proper matter for judicial notice.” AES Puerto Rico, L.P. v. Trujillo-Panisse, No. CV 14-1767 (FAB), 2016 WL 4016825, at *1 (D.P.R. July 27, 2016) (internal quotation marks omitted).

         Generally, public records, such as administrative decisions, state court decisions, and statewide standards are noticeable under this standard. See Freeman v. Town of Hudson, 714 F.3d 29, 37-38 (1st Cir. 2013) (citing cases). The Town, the Police Defendants, and the Individual Town Defendants contend that the arbitration decision is a public record because it is from the New Hampshire Public Employee Labor Relations Board (the “PELRB”). In response, Carney contends that the arbitration decision is not a public record but rather a decision from a private arbitration. Carney argues that the arbitration's only link to the PELRB is that the parties to the arbitration used that agency to select a neutral arbitrator.

         Here, although the defendants contend that the arbitration award is a public record from the PELRB, they present no argument to support that assertion. To the contrary, the circumstances appear to support Carney's characterization of the award as a private arbitration in which the PELRB merely assisted the parties in nominating an arbitrator. The PELRB's regulations permit parties to request the appointment of a neutral arbitrator from a list of qualified parties that the PELRB maintains. N.H. Code Admin. R. Pub. 102.1(e); 305.02(a)-(c). And Betty Waxman, the arbitrator who issued the decision, is on this list and appears to be a private attorney, not a staff member of the PELRB. See NH PELRB List of Neutrals, available at https://www.nh.gov/pelrb/neutrals /documents/list.pdf, (listing Betty Waxman as a neutral available to conduct arbitration). Defendants do not explain how the arbitration decision, which appears to have been decided by a non-public, neutral arbitrator, is a public record.[6] Accordingly, defendants have not met their burden of demonstrating that the arbitration decision is noticeable under Fed. R. Evid. 201.

         This decision is in accord with the decisions of other federal courts who have held that private arbitration awards are not appropriate for consideration at the pleadings stage. See United States v. Speakman, 594 F.3d 1165, 1172 n.4 (10th Cir. 2010) (“[T]he NASD (which no longer exists) was not a public agency, so its arbitration awards are not public records. We are thus unconvinced that we can take judicial notice of the contents of a private arbitration award, and we decline to do so.”); Kisby Lees Mech. LLC v. Pinnacle Insulation, Inc., No. CIV. 11-5093 JBS/AMD, 2012 WL 3133681, at *4 (D.N.J. July 31, 2012) (“As the Court finds no indication that the arbitration award is a matter of public record, the Court declines [to] consider it as such.”); Zellner v. Herrick, No. 08-C-0315, 2009 WL 188045, at *3 (E.D. Wis. Jan 22, 2009).

         2. Preclusive Effect

         Defendants' res judicata and preclusion arguments rely exclusively on the contents of the arbitration decision. Because the court cannot consider that document at this stage of the litigation, defendants' motions for judgment on the pleadings on those claims are denied. Defendants' arguments concerning the arbitration decision's preclusive effect are best handled in the context of a properly-supported motion for summary judgment.

         B. Defamation (Count II)

         The Individual Town Defendants move for judgment on the pleadings on Carney's defamation claims against them. The Individual Town Defendants argue that Carney does not state a claim for defamation because the complaint does not allege that any of them made statements about Carney. In response, Carney contends that he needs discovery to identify the defamatory statements made by the Individual Town Defendants. Carney argues that the defamation claim should proceed to discovery because some unknown person disseminated the material in his personnel file, which has prevented him from obtaining jobs in law enforcement.

         “To state a claim of defamation under New Hampshire law, a plaintiff must allege facts that show ‘the defendant failed to exercise reasonable care in publishing a false and defamatory statement of fact about the plaintiff to a third party, assuming no valid privilege applies to the communication.'” Brady v. Somersworth Sch. Dist., No. 16-CV-069-JD, 2016 WL 3248247, at *4 (D.N.H. June 13, 2016) (quoting Thomas v. Tel. Publ'g Co., 155 N.H. 314, 321 (2007)). Here, Carney concedes that he has not alleged that any of the Individual Town Defendants published any statements about him. Therefore, Carney does not plead a plausible defamation claim against the Individual Town Defendants.

         Carney's assertions that some unidentified person disseminated the material in his personnel file cannot save his defamation claims against the Individual Town Defendants. Carney points to no allegation in the complaint alleging that anyone affiliated with the Town disclosed the information contained in his personnel file. In fact, Carney appears to allege that it was he who informed potential employers about the contents of his personnel file. Doc. no. 21 at ¶ 182 (“Carney was obligated to inform potential employers about the investigation, since upon his request, his personnel file was tendered and it included the notice of administrative leave, and the ‘specification of charges'.”). In any event, Carney does not allege that any of the Individual Town Defendants were involved in maintaining or had access to his ...


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