United States District Court, D. New Hampshire
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 ...