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Censabella v. Town of Weare

United States District Court, D. New Hampshire

September 6, 2017

Lisa Censabella
Town of Weare, et al. [1] Opinion No. 2017 DNH 181


          Andrea K. Johnstone, United States Magistrate Judge

         The plaintiff, Lisa Censabella, alleges that various employees of the Town of Weare Police Department (“WPD”) and members Board of Selectmen (“Board”) were complicit in a conspiracy that ultimately resulted in Censabella's termination as a WPD employee. She brings a ten-count complaint alleging various violations of federal and state law. Sheila Savaria, an officer with the WPD, is named as a defendant in seven of those counts: Counts I, IV, V, VI, VIII, IX, and X. Savaria moves to dismiss each count pursuant to Federal Rule of Civil Procedure 12(b)(6) on the basis that Censabella has failed to state a claim against her upon which relief may be granted. Doc. no. 12. Censabella objects, subject to one limited exception. 19. For the reasons that follow, Savaria's motion is granted as to all counts except Count X.

         Standard of Review

         Under Rule 12(b)(6), the court must accept the factual allegations in the complaint as true, construe reasonable inferences in the plaintiff's favor, and “determine whether the factual allegations . . . set forth a plausible claim upon which relief may be granted.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014) (citation and quotation marks omitted). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Analyzing plausibility is “a context-specific task” in which the court relies on its “judicial experience and common sense.” Id. at 679.


         The facts recited in this section are drawn from Censabella's complaint and certain documents attached to Savaria's motion to dismiss.[2] When viewed in the light most favorable to Censabella, the relevant facts are as follows.[3]

         Censabella was a police officer with the WPD. She was hired by the WPD as a part-time officer in August 2009, transitioning to full time in August 2010. Beginning in late-February 2013, Kenneth Cox, then a sergeant with the WPD, and Kimberly McSweeney, then the WPD's union steward, separately approached Censabella and requested that she draft a statement of misconduct against then-WPD lieutenant James Carney. Carney had previously been Censabella's supervisor. Censabella stated that she had not observed any misconduct by Carney and refused both requests. Soon after these conversations, Carney was placed on administrative leave, and the Town of Weare (“Town”) issued a “no contact” order prohibiting any WPD officer from communicating with Carney. Carney ultimately left the WPD on or about July 1, 2013.

         Censabella viewed Cox and McSweeney's actions to be part of a conspiracy against Carney. She surmised that Savaria was part of this conspiracy. Over the course of the next several years, members of this conspiracy targeted Censabella due to the perception that she remained close to and was communicating with Carney. At one point, Cox informed Censabella that Savaria, among others, believed that Censabella was “leaking” information to Carney. On another occasion, Carney approached Censabella at a bar and Censabella started crying uncontrollably, telling Carney that she could not speak with him because she had “become the target” of several WPD officers, including Savaria, for not filing a false report against Carney. The behavior of the members of the conspiracy caused Censabella emotional and psychological distress.

         On December 29, 2014, Censabella was placed on administrative leave. The Board held a hearing the following week, after which Censabella was suspended for thirty days and required to sign a “second chance agreement.” See doc. no. 12-2. Censabella attributes this series of events to the conspiracy against her.

         Following her suspension, Censabella took a medical leave of absence for hip replacement surgery. When she returned to work in May 2015, several WPD officers, including Savaria, orchestrated “an onslaught of false allegations, untrue statements, and . . . internal affairs investigations” against her. Doc. no. 1-1 ¶ 121. As a result of these actions, Censabella was again placed on administrative leave.[4] Censabella requested a hearing before the Board and, in September 2015, filed charges of discrimination against several WPD officers, including Savaria, with the New Hampshire Commission for Human Rights (“NHCHR”) and the United States Equal Employment Opportunity Commission (“EEOC”). See doc. no. 12-4.

         The Board held a hearing on October 5, 2015. At this hearing, Sean Kelly, then chief of the WPD, recommended that Censabella be terminated. Kelly based this recommendation in part upon a finding that Censabella had gone to the hospital to arrest the driver of a motor vehicle involved in a collision without proper authorization to make the arrest. Though Censabella recalls McSweeney ordering her to make the arrest while they were both at the scene of the collision, McSweeney later prepared a written statement claiming that no such order had been made. Savaria was also at the scene, but not within earshot of Censabella and McSweeney. Savaria nevertheless prepared a memorandum stating that she observed McSweeney “ask[] Officer Censabella to meet Weare Rescue at the Concord Hospital to investigate further, and make an arrest if she felt she had probable cause to do so” but that “[a]t no point did [Savaria] hear Sergeant McSweeney tell Officer Censabella to go to the hospital specifically to arrest [the driver].” Doc. no. 12-3 (hereinafter the “memorandum”).

         Censabella's employment with the WPD was terminated following the hearing. This action followed.


         Censabella brings claims against Savaria for: (1) interference with contractual relationships (Count I); (2) civil conspiracy (Count IV); (3) intentional infliction of emotional distress (Count V); (4) negligent infliction of emotional distress (Count VI); (5) violations of substantive and procedural due process and freedom of speech (Count VIII); (6) conspiracy to violate substantive and procedural due process and freedom of speech (Count IX); and (7) aiding and abetting and retaliation in violation of New Hampshire Revised Statutes Annotated (“RSA”) § 354-A (Count X). Savaria moves to dismiss each of these counts for failure to state a claim. Censabella concedes that she has not stated a claim for negligent infliction of emotional distress, see infra p. 12, but otherwise objects. The court considers each count in turn.

         I. Count I: Tortious Interference with Contractual Relations

         To succeed on a claim for tortious interference with contractual relations, a plaintiff must demonstrate that “(1) the plaintiff had an economic relationship with a third party; (2) the defendant knew of this relationship; (3) the defendant intentionally and improperly interfered with this relationship; and (4) the plaintiff was damaged by such interference.” City of Keene v. Cleaveland, 167 N.H. 731, 738 (2015) (citation and quotation marks omitted). When, as here, the plaintiff alleges interference by a fellow employee with her employment contract, “[the] employer may be a third party only if the fellow employee was acting outside of the scope of his employment.” O'Neill v. Valley Reg'l Health Care, Inc., No. 00-cv-441-JD, 2001 WL 276968, at *3 (D.N.H. Mar. 21, 2001) (citing, e.g., Preyer v. Dartmouth Coll., 968 F.Supp. 20, 26 (D.N.H. 1997)); see also Balsamo v. Univ. Sys. of N.H., No. 10-cv-500-PB, 2011 WL 4566111, at *5 (D.N.H. Sept. 30, 2011).

         Censabella raises three basic categories of allegations against Savaria. First, she alleges that Savaria was, at least in part, responsible for the “onslaught of false alelgations, untrue statements, and . . . internal affairs investigations” brought against Censabella. Doc. no. 1-1 ¶ 121. This allegation is insufficient to establish a claim of tortious interference with contractual relations, however, because Censabella has not elaborated upon the nature of the purported allegations, untrue statements, and internal investigations, let alone Savaria's involvement in them. See Iqbal, 556 U.S. at 679 (noting that “naked assertions devoid of any further factual enhancement” are insufficient to defeat a motion to dismiss (brackets and quotation marks omitted)).

         Next, Censabella's suggests that Savaria interfered with Censabella's employment through her statements in the memorandum. This argument, too, is unavailing because Censabella has failed to allege any facts that would support a reasonable inference was Savaria was operating outside of the scope of here employment with the WPD when she wrote the memorandum. See Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996) (“An act is within the scope of employment under New Hampshire law if it was authorized by the employer or incidental to authorized duties; if it was done within the time and space limits of the employment; and if it was actuated at least in part by a purpose to serve an objective of the employer.”). Indeed, there is every ...

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