UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Alexandra Drake, Plaintiff
v. Case No. 16-cv-470-SM Opinion No. 2017 DNH 106 Town of New Boston, et al., Defendants
O R D E R
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.
Fisher and Masella have filed for judgment on the pleadings on
several of Drake’s claims against them. Masella’s motion for
judgment on the pleadings is limited to Drake’s Section 1983 claims
against him, while Fisher moves for judgment on all of Drake’s 1 claims. Masella’s motion is granted, and Fisher’s motion is granted
in part and denied in part.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(c) provides that, “[a]fter
the pleadings are closed but within such time as not to delay the
trial, any party may move for judgment on the pleadings.” “The
standard of review of a motion for judgment on the pleadings under
Federal Rule of Civil Procedure 12(c) is the same as that for a
motion to dismiss under Rule 12(b)(6).” Marrero-Gutierrez v. Molina,
491 F.3d 1, 5 (1st Cir. 2007) (citations omitted). Accordingly,
“[t]he court accepts the plaintiff's well-pleaded facts as true and
draws all reasonable inferences in the plaintiff's favor.” Holder v.
Town of Newton, No. 09-CV-341-JD, 2010 WL 3211068, at *1 (D.N.H. Aug.
11, 2010) (citing Citibank Global Mkts., Inc. v. Santana, 573 F.3d
17, 23 (1st Cir. 2009)).
To survive defendants' motion, each count of plaintiff’s
complaint must allege all 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). Judgment on the pleadings will be entered “only if the
uncontested and properly considered facts conclusively establish the
2 movant's entitlement to a favorable judgment.” Aponte-Torres v.
Univ. of P.R., 445 F.3d 50, 54 (1st Cir. 2006).
BACKGROUND
The facts as set forth in Drake’s complaint are extensively
detailed in the court’s contemporaneous order on the motion to
dismiss filed by the Town of New Bedford, Chief Brace, Dwight
Lovejoy, Christine Quirk and Joseph Constance. The parties’
familiarity with the relevant facts is assumed, and the court shall
not repeat them here. Where necessary, the court will refer to
pertinent or additional facts.1
DISCUSSION
Count 1 - Civil Conspiracy (Brace, Masella, Fisher)
Fisher has moved for judgment on the pleadings as to Drake’s
civil conspiracy claim against him.
Under New Hampshire law, the “essential elements” of civil
conspiracy are: (1) two or more persons; (2) an object to be
1 Drake asks the court to consider a number of exhibits she attached to her objection to the Town Defendants’ motion to dismiss, which seemingly comprise the administrative record before the New Hampshire Commission for Human Rights. She argues these documents are “properly before the court.” Obj. to Fisher’s Mot. for Judgment on the Pleadings, p. 3. The court disagrees.
In reviewing a Rule 12(c) motion, the court may “consider documents the authenticity of which are not disputed by the parties, documents central to the plaintiffs' claim, and documents 3 accomplished (i.e., an unlawful object to be achieved by lawful or
unlawful means, or a lawful object to be achieved by unlawful means);
(3) an agreement on the object or course of action; (4) one or more
unlawful overt acts; and (5) damages as the proximate result thereof.
Jay Edwards, Inc. v. Baker, 130 N.H. 41, 47 (1987). Fisher argues
that Drake’s civil conspiracy charge against him must be dismissed
because Drake fails to sufficiently allege that Fisher agreed to
participate in or facilitate any unlawful purpose.
Drake alleges that Brace, Masella, and Fisher entered into
“overt or covert” agreements to “file false complaints against Drake,
coerce or facilitate coverups, obfuscate, or delay the discovery of
truth” in an effort to conceal Masella’s illegal conduct, and engaged
in acts to, inter alia, “conduct an improper, biased investigation”
in an effort to force Drake out of her job. Compl. ¶ 123. In
response to Fisher’s motion, Drake argues that her allegations
concerning Brace’s purported involvement in Fisher’s investigation,
and the results of the investigation, support an inference that
sufficiently referred to in the complaint.” Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 2007) (internal quotation and punctuation omitted). Plaintiff’s exhibits are not referred to in the complaint, nor are they central to her claims. Moreover, Fisher’s position on the authenticity of the documents is unclear, because Fisher did not file a reply memorandum. Accordingly, the court declines to consider plaintiff’s exhibits for purposes of this motion. And, for similar reasons, the court declines to consider the exhibits plaintiff attached to her Objection to Fisher’s Motion for Judgment on the pleadings. 4 Brace, Fisher, and/or Masella entered into an overt or tacit
agreement to conspire against her.
Drake offers no precedent in support of her argument, and the
court is not persuaded. As noted in the court’s order on the Town
Defendants’ motion to dismiss, Drake’s complaint lacks any factual
allegation that would support a plausible inference that Brace,
Fisher and Masella entered into an agreement to conspire against her.
Accordingly, Fisher’s motion for judgment on the pleadings on
Drake’s civil conspiracy claim is granted, albeit without prejudice.
To the extent Drake can plausibly and in good faith assert factual
allegations that would support a cognizable claim for civil
conspiracy against Fisher, she may file a timely motion to amend her
complaint. See Ashcroft v. Iqbal, 556 U.S. at 678 (“A claim has
facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.”).
Count 3 – Intentional Interference with Contractual Relationship (Masella, Brace, and Fisher)
Fisher has also moved for judgment on Drake’s intentional
interference with contractual relationship claim.
5 In order to state a claim for intentional interference with
contractual relations under New Hampshire law, Drake must allege
that: (1) she had a contractual relationship with a third party; (2)
defendants knew of that contractual relationship; (3) defendants
wrongfully induced the third party to breach the contract; and (4)
Drake’s damages were proximately caused by defendants' interference.
Wilcox Indus. Corp. v. Hansen, 870 F. Supp. 2d 296, 306 (D.N.H. 2012)
(citing Roberts v. General Motors Corp., 138 N.H. 532, 539, 643 A.2d
956 (1994)) (additional citations omitted).
Fisher points out that the only factual allegations set forth in
Drake’s complaint that relate to Fisher are that he purportedly: (1)
allowed Drake’s involvement in the independent investigation; and (2)
took too long to complete his investigation. Those allegations, says
Fisher, are plainly insufficient to support a finding that Fisher
“intentionally and improperly interfered” with Drake’s contractual
relationship. Mem. in Supp. of Mot. for Judgment on the Pleadings,
p. 5 (quoting Demetracopoulos v. Wilson, 138 N.H. 371, 373-274
(1994)).
Fisher relies upon Demetracopoulos v. Wilson, 138 N.H. 371. In
that case, a certified public accountant issued an audit report
finding that plaintiff’s employment contract violated the employer’s
personnel policies manual. Id. at 373. The employer then terminated
the plaintiff’s employment, and plaintiff filed suit against the 6 accountant, alleging intentional interference with contractual
relations. On appeal, the New Hampshire Supreme Court reversed and
remanded, finding that the jury had not been properly instructed that
a defendant could not be held liable unless the jury found “such
interference occurred as a consequence of conduct that was both
intentional and improper.” Id. at 374. The court further stated:
“To establish that the defendant’s conduct was improper, the
plaintiff had to show that the interference with his contractual
relations was either desired by the defendant or known by him to be a
substantially certain result of his conduct.” Id. And, the court
continued, to the extent plaintiff’s claim relied upon any
inaccuracies within the report, defendant could not be found liable
unless he “knew or believed the report contained false information.”
Id. at 375.
Here, Fisher argues, Drake’s claim fails because she fails to
allege that his investigation report contains any inaccuracies, that
Fisher was aware of any inaccuracies in the report, that Fisher
desired Drake’s termination, or even that Fisher understood that
Drake’s termination would be substantially certain to result from any
improper conduct on his part.
Drake responds that she has sufficiently alleged Fisher’s
wrongful intent, because she alleged that “Fisher . . . allowed
[Chief Brace], the accomplice and cover-up artist with his own hide 7 on the line, to ‘rewrite’ the biased [investigation] report.” Obj.
to Mot. for Judgment on the Pleadings, p. 10. She argues that a
“fair reading” of the complaint supports a finding that Fisher
“perpetuated what [he] knew to be lies and half-truths,” “add[ing]
his own gloss of credibility, to . . . manufacture a report” to
punish Drake for “expos[ing]” Brace and Masella. Id. at p. 11.
Therefore, Drake says, “Fisher’s actions did substantially contribute
to Drake’s separation from employment . . . These outcomes were
entirely foreseeable.” Id. Drake cites no authority in support of
her argument, but makes an effort to distinguish Demetracopoulos by
arguing that she has alleged that Fisher’s report went beyond “mere
incompetence or good faith inconsequential errors.” Id. at p. 10.
Drake’s arguments are unconvincing. Accepting all facts pled by
Drake as true, and drawing all reasonable inferences in her favor,
Drake’s complaint does not sufficiently allege facts that could
support a plausible inference that Fisher “intentionally and
improperly,” Demetracopoulos v. Wilson, 138 N.H. at 374, interfered
with Drake’s contractual relationship with the Town of New Boston.
And, while Drake argues in her brief that it was foreseeable that
Drake would be terminated as a result of Fisher’s purported
misconduct, she does not allege any facts that suggest Fisher “was
motivated, in whole or in part, by a desire to interfere with
[Drake’s] contractual relations.” Restatement (Second) of Torts §
767 (1979) (further stating: “if there is no desire at all to 8 accomplish the interference and it is brought about only as a
necessary consequence of the conduct of the actor engaged in for an
entirely different purpose, his knowledge of this makes the
interference intentional, but the factor of motive carries little
weight toward producing a determination that the interference was
improper.”).
Accordingly, Fisher’s motion for judgment on Drake’s intentional
interference with contractual relationship claim is granted, albeit
without prejudice. To the extent Drake can plausibly and in good
faith assert factual allegations that would support a cognizable
claim against Fisher, she is free to move to amend her complaint in a
timely way. See Ashcroft v. Iqbal, 556 U.S. at 678 (“A claim has
facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant
Count VII and Count VIII Section 1983 – Procedural and Substantive Due Process; First Amendment Section 1983 – Conspiracy to Violate Civil Rights
Fisher and Masella have moved for judgment on the pleadings on
Drake’s Section 1983 claims against them. The court has determined
that Drake has not sufficiently stated a claim for violation of her
due process or First Amendment rights. For the reasons given in the
court’s contemporaneous order on the Town Defendants’ motion to
9 dismiss, Fisher’s and Masella’s motions are granted as to Drake’s
procedural due process claim, her substantive due process claim, and
her First Amendment retaliation claim.
Because Drake has not stated a claim for violation of her civil
rights, she also has not stated a claim for conspiracy to violate
those constitutional rights. See Thore v. Howe, 466 F.3d 173, 179
(1st Cir. 2006) (“[W]hile conspiracies may be actionable under
section 1983, it is necessary that there have been, besides the
agreement [among conspirators], an actual deprivation of a right
secured by the Constitution and laws.”) (citations omitted).
Accordingly, Fisher’s and Masella’s motions for judgment on Drake’s
Section 1983 conspiracy claim are granted as well.
Count X – RSA 354-A: 2, 7, 19 – Sexual Harassment, Aiding & Abetting, Retaliation (All Defendants)
Drake has agreed to dismissal of her RSA 354-A sexual harassment
and hostile work environment claims against Fisher. Therefore,
Drake’s remaining RSA 354-A claims against Fisher are for aiding and
abetting discrimination, and retaliation. Fisher has moved to
dismiss those claims.
Fisher makes two arguments in support of his motion for judgment
on Drake’s RSA 354-A claims. First, Fisher points out that, as an
employee of the County Sheriff’s Department, he was not Drake’s
10 supervisor, or even a co-employee. Therefore, he says, he could not
subject Drake to any adverse employment action, nor does Drake allege
that he was able to do so. Similarly, Fisher argues that, as a third
party, he cannot be held liable for aiding and abetting
discrimination in the workplace. Second, Fisher argues that, because
Drake failed to file a charge of discrimination against him with the
New Hampshire Commission for Human Rights, her RSA 354-A claim must
be dismissed for failure to exhaust administrative remedies.
Drake argues that Fisher was working as Brace’s authorized
agent, and, therefore, was empowered to act on the Town’s behalf.
Drake also relies upon the New Hampshire Supreme Court’s recent
opinion in U.S. Equal Employment Opportunity Comm. v. Fred Fuller Oil
Co., Inc., 168 N.H. 606, 613 (2016), for the proposition that “any
person who retaliates against another person in the workplace because
he or she has taken any of the specified protected actions is liable,
under RSA 354–A:19, for an unlawful discriminatory practice.”
Therefore, Drake argues, Fisher can be held liable.
Assuming arguendo that a retaliation claim can be asserted
against an individual who is not employed by the plaintiff’s
employer, to the extent Drake asserts a direct retaliation claim
against Fisher, she has not stated a claim. That is because Drake
has not alleged any facts that would plausibly support a finding that
Fisher himself “discharge[d], expel[ed], or otherwise retaliate[d] or 11 discriminate[d]” against Drake, N.H. Rev. Stat. Ann. § 354-A:19, in
retaliation for Drake’s reporting Masella’s misconduct to her
superior officers, or for filing a charge with the New Hampshire
Human Rights Commission. While Drake’s complaint is confusing, her
theory seems to be that Fisher was motivated to conduct a purportedly
biased investigation in retaliation for Drake having filed an EEOC
charge. The basis for that speculative theory is difficult to
discern, given that Fisher himself was not named in the charge. And,
Drake makes no effort to allege any facts in support of that theory.
For those reasons, Drake has not stated a retaliation claim against
Fisher (but, again, it is hardly clear from Drake’s confusing
complaint whether she is alleging a direct claim against Fisher).
Whether Drake has alleged an aiding and abetting discrimination
and retaliation claim against Fisher is a closer call, and likely
raises a novel issue of state law. In U.S. Equal Employment
Opportunity Comm. v. Fred Fuller Oil Co., Inc., defendant argued that
plaintiffs were barred from asserting RSA 354-A claims against him as
an individual. 168 N.H. 606. The New Hampshire Supreme Court
disagreed, finding, based on the language of the statute, that an
individual could be held liable for aiding and abetting unlawful
employment discrimination, rejecting defendant’s argument that
liability for aiding and abetting discrimination was limited to
employers. The Court further held that an individual employee could
be held liable under RSA 354-A:19, which bars retaliation in the 12 workplace. However, the Court noted that it was not directly
addressing “whether individuals who are not employed by the
plaintiff's employer may be liable for retaliation under the
statute.” U.S. Equal Employment Opportunity Comm. v. Fred Fuller Oil
Co., Inc., 168 N.H. at 613 (emphasis added).
Given the complexity and the novelty of the legal issue, both
parties’ briefing on this topic is relatively sparse. The court
hesitates to resolve this novel question of state law, despite its
apparent factual and contextual weakness, without more focused
briefing from both parties. Accordingly, Fisher’s motion for
judgment on Drake’s RSA 354-A aiding and abetting claims against him
is denied at this juncture. Fisher is, of course, free to raise the
issue at summary judgment with the benefit of a more fully developed
record and briefing.
Moving to Fisher’s exhaustion of administrative remedies
argument, Drake concedes that she did not name Fisher in her initial
charge of discrimination filed on June 8, 2015. At that point, Drake
points out, Fisher’s investigation had not yet commenced, and so
there was no need to name Fisher in her charge. However, Drake says,
on April 6, 2016, she filed a supplement to her initial filing in
which she named Fisher.
13 As this court noted in its contemporaneous order on the Town
Defendants’ motion to dismiss, “a plaintiff generally may not
maintain a suit against a defendant in federal court if that
defendant was not named in the administrative proceedings and offered
an opportunity for conciliation or voluntary compliance.” McKinnon
v. Kwong Wah Restaurant, 83 F.3d 498, 504 (1st Cir. 1996) (citing 42
U.S.C. § 2000e–5(f) (“civil action may be brought against the
respondent named in the charge”)). “However, this general rule is
not absolute.” Burnett v. Ocean Properties Ltd., No. 2:16-CV-00359-
JAW, 2017 WL 1331134, at *7 (D. Me. Apr. 11, 2017) (citing McKinnon,
83 F.3d at 505). As the court previously determined with respect to
a similar argument made by the individual Town Defendants, a more
fully developed factual record is necessary for the court to
determine whether an exception to the general rule applies here.
Accordingly, the court declines to grant Fisher’s motion for judgment
on the pleadings on that basis at this juncture. Again, Fisher is
free to raise the issue at summary judgment with the benefit of a
more fully developed record and briefing.
CONCLUSION
For the foregoing reasons, as well as those set forth in
Fisher’s memorandum and the court’s contemporaneous order on the Town
Defendants’ motion to dismiss, Fisher’s motion for judgment on the
pleadings (document no. 20) is GRANTED in part and DENIED in part, as
set forth herein. Masella’s motion for partial judgment on the 14 pleadings (document no. 19) is GRANTED for the foregoing reasons, as
well as those set forth in Masella’s memorandum and the court’s
contemporaneous order on the Town Defendants’ motion to dismiss.
SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
June 6, 2017
cc: Tony F. Soltani, Esq. Donald L. Smith, Esq. Brian J. S. Cullen, Esq. Samantha D. Elliott, Esq.