Drake v. Town of New Boston

          ORDER

          Steven J. McAuliffe United States 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.

         STANDARD OF REVIEW

         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.” SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010). Although the complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), it must allege each of the essential elements of a viable cause of action and “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal punctuation omitted).

         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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Instead, the facts alleged in the complaint must, if credited as true, be sufficient to “nudge[] [plaintiff's] claims across the line from conceivable to plausible.” Id. at 570. If, however, the “factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal.” Tambone, 597 F.3d at 442.

         “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.” Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008) (citing Garita Hotel Ltd. Partnership v. Ponce Fed. Bank, F.S.B., 958 F.2d 15, 18 (1st Cir. 1992)). “When ... a complaint's factual allegations are expressly linked to - and admittedly dependent upon - a document (the authenticity of which is not challenged), that document effectively merges into the pleadings and the trial court can review it in deciding a motion to dismiss under Rule 12(b)(6).” Id. (quoting Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 16-17 (1st Cir. 1998) (additional citations omitted).

         BACKGROUND

         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.^[1] Officer Masella interviewed Drake as part of the hiring process, recommending to Chief Brace that Drake be hired. Masella was ultimately assigned as Drake's Field Training Officer.

         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. Id. The Manchester Police Department gave Drake a potential hire date of June 24, 2015.

         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.^[2] Within hours, Drake was interrogated by Chief Brace, with Sergeant Widener and Masella present (despite the fact that interrogating Drake in Masella's presence was a violation of the Sexual Harassment Policies of the Police Department and the Town). Chief Brace “belittled and bombarded [Drake] with questions.” Compl. ¶ 69. When the parties discussed the U-Haul truck stop incident, Masella again called Drake a “liar.” When Chief Brace failed to correct Masella's behavior, Drake understood that Chief Brace would not investigate Masella's wrongdoing, and that efforts to report Masella's misconduct would be futile and “disastrous” to her career. Compl. ¶ 64. Chief Brace told Drake that “maybe the police department would be better if [she] were gone.” Compl. ¶ 68. Drake “left the interrogation distraught, defeated and uncomfortable.” Compl. ¶ 69.

         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. Id. at ¶ 73. Chief Brace then told MacDonald he “would never hire another female officer again.” Compl. ¶ 73. Chief Brace did not interview Drake to investigate MacDonald's complaint. MacDonald later resigned from the NBPD.

         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, ^[3] nor was Drake permitted to have counsel present during the interview. Chief Brace asked Drake a few questions about Masella's inappropriate sexual comments, but appeared far more focused on the September 2014 Report. Drake explained to Brace that Masella had instructed her to modify the report. Later that day, following the interview, Drake received a text message from Chief Brace instructing that she should not discuss the ongoing internal investigation with anyone. Masella did not receive similar instructions from Brace.

         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.^[4] At the June 8, 2015, meeting, Young, Hogan and Chief Brace determined that Brace would submit a “Laurie Letter” to the Hillsborough County Attorney's Office for Drake's falsification of the September 2014 Report, and that Drake would be placed on the “Laurie List.” Masella's involvement in the September 2014 Report was not discussed. Chief Brace also contacted Hillsborough County Sheriff's Department Deputy Chief Gary Fisher, and asked him to conduct an independent investigation into Drake's allegations.^[5]

         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 predisposed 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.

         DISCUSSION

         Consideration of Materials Outside the Pleadings

         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. See Fed.R.Civ.P. 12(b)(6). However, courts have made narrow exceptions for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiffs' claim; or for documents sufficiently referred to in the complaint.” Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993) (citations omitted).

         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. See Compl. ¶¶ 85, 111-112, 190-191, 209. And, Drake seemingly does not dispute the authenticity of the document. Accordingly, the court finds the charge of discrimination is “sufficiently referred to in the complaint, ” Watterson, 987 F.2d at 3, and can be considered without converting the Town Defendants' motion to one for summary judgment. See Barber v. Verizon New England, Inc., No. C.A. 05-390ML, 2005 WL 3479834, at *1 n.1 (D.R.I. Dec. 20, 2005) (“While a court deciding a Rule 12(b)(6) motion is normally constrained to consider only the plaintiff's complaint, a court may nonetheless take into account a document whose contents are linked to the complaint and whose authenticity is not challenged, such as a charge of discrimination filed with the Commission, without converting the motion into a summary judgment request.”) (citing Beddall v. State St. Bank and Trust Co., 137 F.3d 12, 17 (1st Cir. 1998); see also Cintron-Garcia v. Supermercados Econo, Inc., 818 F.Supp.2d 500, 506 (D.P.R. 2011) (collecting cases for the proposition that an EEOC charge may be considered at the motion to dismiss stage as an official public record).

         Count 1 - Civil Conspiracy ...