United States District Court, D. New Hampshire
James J. Carney
Town of Weare, et al. Opinion No. 2017 DNH 031
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.
McCafferty, United States District Judge
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.
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
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.
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.
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.
January 2013, a WPD officer filed a sexual harassment
complaint concerning an incident in which several officers,
including Kenneth Cox, Frank Hebert, Kimberly McSweeney,
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.
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.
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.
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.
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
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. 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
• § 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
• 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
• violation of New Hampshire's Employee Freedom of
Expression Law, RSA 98-E against the Town (Count
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.
Motions for the Town, Police Defendants, and Individual Town
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.
• 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.
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.
Preclusive Effect of Arbitration Award
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.
Consideration of the Arbitration Award
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
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
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
/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. Accordingly, defendants have not met their
burden of demonstrating that the arbitration decision is
noticeable under Fed. R. Evid. 201.
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).
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.
Defamation (Count II)
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.
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.
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 ...