Alexandra Drake v. Town of New Boston, et al.

2017 DNH 103

• Court: District Court, D. New Hampshire
• Decided: June 6, 2017
• Docket: 16-cv-470-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Alexandra Drake, Plaintiff

v. Case No. 16-cv-470-SM Opinion No. 2017 DNH 103 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.

1 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

2 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).

3 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

1 Beginning in May of 2013, Drake attended the New Hampshire Police Standards and Training Counsel’s part-time academy, graduating on August 22, 2013. Beginning in May of 2014, Drake attended the New Hampshire Police Standards and Training Counsel’s full-time academy, graduating on August 22, 2014.

4 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

5 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

6 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

7 [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

8 (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

9 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

10 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

11 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.

2 Shortly after Widener filed the complaint against Masella on Drake’s behalf, Chief Brace recommended to the New Boston Board of Selectmen that Sergeant Widener be suspended or demoted for purported violations of NBPD policy. Widener subsequently resigned.

12 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.

13 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

3 The New Hampshire Supreme Court has described a “Garrity Warning” as follows:

Such a warning informs the accused that the purpose of questioning is to assist in determining whether to impose administrative discipline. Even if the accused were to disclose during questioning information indicating that he may be guilty of criminal conduct, the warning explains that neither his self- incriminating statements, nor the fruits thereof will be used against him in any criminal proceeding. The warning further states that if the accused refuses to answer questions or fails to give truthful answers, he will be subject to disciplinary action, up to and including dismissal.

In re Waterman, 154 N.H. 437, 442 (2006) (citation and quotation marks omitted).

14 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

4 The “Laurie List,” which takes its name from the New Hampshire Supreme Court case, State v. Laurie, 139 N.H. 325, 329 (1995), is an “an informal list of police officers who have been identified as having potentially exculpatory evidence in their personnel files or otherwise.” Duchesne v. Hillsborough Cty. Attorney, 167 N.H. 774, 775 (2015); see also Gantert v. City of Rochester, 168 N.H. 640, 645 (2016) (listing New Hampshire Attorney General’s categories of personnel conduct considered potential Laurie material, including instances where an officer deliberately lied in a police report).

15 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

5 Brace initially invited Fisher to attend the June 8, 2015, meeting, but, at Young’s suggestion, that invitation was withdrawn.

16 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 pre-

disposed 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”

17 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.

18 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

19 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.

20 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

21 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

22 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 (Brace, Masella, Fisher)

Moving on to the merits of the Town Defendants’ argument,

the court first addresses Drake’s civil conspiracy claim. In

support of that claim, 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. The Town

Defendants say that Drake’s civil conspiracy charge against

Chief Brace must be dismissed because she fails to allege facts

supporting the existence of an agreement between Brace and the

other purported conspirators.

Under New Hampshire law, the “essential elements” of civil

conspiracy are: (1) two or more persons; (2) an object to be

accomplished (i.e., an unlawful object to be achieved by lawful

23 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).

Drake never squarely alleges that Brace, Masella and

Fischer agreed to undertake a joint course of action. Instead,

she asks the court to infer from the complaint that a tacit

agreement existed between the three. She points to a series of

allegations that she says support an inference that an agreement

existed between them. Bluntly put, those factual allegations do

not support her argument. Drake’s complaint is utterly lacking

any factual allegations that would support a plausible inference

that Brace, Fisher and Masella entered into an agreement to

conspire against her. For that reason, the Town Defendants’

motion to dismiss the conspiracy claim against Brace 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, she may file a motion

to amend her complaint within 30 days of the date of this order.

See Ashcroft v. Iqbal, 556 U.S. at 678 (“A claim has facial

plausibility when the plaintiff pleads factual content that

24 allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.”).

Count 2 – Defamation and Defamation Per Se (All Defendants)

The Town, Brace, Lovejoy, Constance, and Quirk have moved

to dismiss Drake’s defamation claim against them. Drake agrees

that her defamation claim against these defendants should be

dismissed. See Obj. to Mot. to Dismiss at pp. 10-11, 25

(requesting that the court “GRANT the motion to dismiss Count II

as to defendants Brace, Town and the individual selectmen.”).

Accordingly, the Town Defendants’ motion to dismiss Drake’s

defamation claim is granted.

Count 3 – Intentional Interference with Contractual Relationship (Masella, Brace, and Fisher)

The Town Defendants have also moved to dismiss Drake’s

intentional interference with a contractual relationship claim

against Brace.

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

25 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).

In support of her claim, Drake alleges that Brace, Masella

and Fisher knowingly and wrongfully interfered with her

employment relationship with the Town of New Boston. The Town

Defendants argue that the claim against Brace must be dismissed

because: (1) Brace merely reported truthfully to the Town that

Drake lied on a police report (which Drake concedes in her

complaint); (2) Brace was privileged to act on behalf of the

Town to investigate Drake’s conduct, and recommend her

termination; and (3) because Brace acted as the Town’s agent and

Drake’s co-employee, there was no “third person” contract with

which Brace could interfere.

The Town Defendants’ arguments are unconvincing. In

response to the Town Defendants’ first argument, Drake notes

that she has alleged that Brace “did more than mere honest

recitation of the whole truth.” Obj. to Mot. to Dismiss at

p. 11. The court agrees. Drake alleges multiple acts by Brace

which she contends interfered with her contractual relationship

with the Town of New Bedford, including Brace’s purported

failure to comply with Town policies and procedures when

26 investigating the September 2014 Report and Drake’s allegations

against Masella.

The Town’s second argument is similarly unpersuasive. The

Town relies on the Restatement (Second) of Torts § 770, which

states: “One who, charged with responsibility for the welfare of

a third person, intentionally causes that person not to perform

a contract . . . does not interfere improperly with the other’s

relation if the actor (a) does not employ wrongful means and (b)

acts to protect the welfare of the third person.” Restatement

(Second) of Torts § 770 (1979) (emphasis added). Here, however,

Drake has sufficiently alleged that Brace employed “wrongful

means,” by, inter alia, retaliating against her for reporting

Masella’s offensive conduct by failing to conduct a fair

investigation consistent with the Town’s and NBPD’s policies and

procedures.

The Town’s third argument, that, because Brace acted as the

Town’s agent and Drake’s co-employee, there was no “third

person” contract with which Brace could interfere also fails.

The Town is correct that, generally, “[i]n the context of

interference with an employment contract by a fellow employee,

an employer may be a third party only if the fellow employee was

acting outside the scope of his employment.” O'Neill v. Valley

Reg'l Health Care, Inc., No. 00-441-JD, 2001 WL 276968, at *3

27 (D.N.H. Mar. 21, 2001) (citations omitted). An employee may be

found to be acting outside the scope of employment if he is

“motivated by actual malice, where actual malice is defined as

bad faith, personal ill will, spite, hostility, or a deliberate

intent to harm the plaintiff.’” Preyer v. Dartmouth College,

968 F. Supp. 20, 26 (D.N.H. 1997) (quoting Soltani v. Smith, 812

F. Supp. 1280, 1297 (D.N.H. 1993)) (additional citations

omitted). Drake sufficiently alleges that Brace acted with

malice (see, e.g., Compl. ¶ 138), and for that reason, the Town

Defendants’ final argument fails as well.

For all those reasons, the Town Defendants’ motion to

dismiss Drake’s intentional interference with contractual

relationship claim against Brace is denied.

Count IV – Intentional Infliction of Emotional Distress (All Defendants)

The Town Defendants have moved to dismiss Drake’s

intentional infliction of emotional distress claim against them

on two bases. First, the Town Defendants argue that Drake’s

intentional infliction claim against the Town fails because it

is barred by the exclusivity clause in the workers’ compensation

law. Drake does not object to dismissal of her claim against

the Town. See Obj. to Mot. to Dismiss at p. 14.

28 Second, the remaining Town Defendants argue that Drake has

not stated a claim against them because she has not sufficiently

alleged extreme and outrageous conduct by Brace or the

Selectmen. Drake disagrees, relying on Yale v. Town of

Allenstown, 969 F. Supp. 798 (D.N.H. 1997), arguing that the

defendants’ conduct here was far worse than the conduct

described in Yale. Brace, Drake contends, was “placed on

notice, and as policy[-]maker for the town[,] he retaliated with

a vengeance in the series of star chamber sessions, [an]

investigation causing her termination, and to finally holding

Drake responsible for violation of sexual harassment rendering

her unemployable throughout the state.” Obj. to Mot. to Dismiss

at p. 14. The Selectmen, she argues, were aware of the details

of the conduct described in Drake’s complaint, and “added their

own contribution of offensive conduct” by “imposing no

corrective sanctions against the abuser,” or “preventative

practices.” Id. Instead, they fired Drake. Id.

“In order to make out a claim for intentional infliction of

emotional distress, a plaintiff must allege that a defendant ‘by

extreme and outrageous conduct, intentionally or recklessly

cause[d] severe emotional distress to another.’” Tessier v.

Rockefeller, 162 N.H. 324, 341 (2011) (quoting Morancy v.

Morancy, 134 N.H. 493, 496 (1991). “‘In determining whether

29 conduct is extreme and outrageous, it is not enough that a

person has acted with an intent which is tortious or even

criminal, or that he has intended to inflict emotional distress,

or even that his conduct has been characterized by malice.’”

Id. (quoting Mikell v. Sch. Admin. Unit No. 33, 158 N.H. 723,

729 (2009)). Instead, a plaintiff must allege conduct “so

outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.”

Id. (citations omitted).

As a preliminary matter, “[c]ourts have rarely found

workplace misconduct sufficiently outrageous to constitute

intentional infliction of emotional distress.” Purdy v. City of

Nashua, No. 98-627-JD, 2000 WL 620579, at *10 (D.N.H. Apr. 17,

2000) (collecting cases). However, in the case upon which Drake

relies, Yale v. Town of Allenstown, 969 F. Supp. at 799, the

plaintiff, a former police officer, asserted an intentional

infliction of emotional distress claim, alleging that the

defendant (her field training officer) repeatedly made sexual

advances toward her “comprised of vulgar remarks, sexual

innuendo and non-consensual touching,” despite plaintiff’s

repeated rejection of those advances. The plaintiff further

alleged that the defendant made persistent harassing phone calls

30 to her while they were off-duty, and, when plaintiff rejected

his advances, spread rumors about her in order to humiliate her.

Id. Finally, the plaintiff alleged that the defendant stood

behind her while she worked on a written exam, and drew his

firearm in violation of department policy, leading plaintiff to

believe she was about to be shot. Id. The court denied

defendant’s motion to dismiss the claim, finding that the

plaintiff had sufficiently alleged extreme and outrageous

conduct. Id. at 801.

Drake’s reliance on Yale, however, is misplaced. The party

moving to dismiss the claim in Yale was the perpetrator of the

harassment. Drake does not allege that Brace, himself,

subjected her to sexually harassing statements, or engaged in

threatening conduct. Instead, Drake alleges that Brace

retaliated against her for reporting Masella’s offensive conduct

by failing to conduct a fair investigation into her allegations,

and by recommending her termination. Such allegations are not

sufficient to show sufficiently extreme and outrageous conduct.

See Maynard v. Meggitt-USA, Inc., No. 14-CV-467-LM, 2015 WL

1538004, at *3 (D.N.H. Apr. 7, 2015) (“In the workplace, false

accusations, inadequate investigations, humiliating treatment,

and abuse of authority generally do not amount to outrageous or

31 atrocious conduct sufficient to state a plausible [intentional

infliction of emotional distress] claim.”) (collecting cases).

That is true of Drake’s allegations in support of her claim

against the Selectmen as well. Drake alleges that the Selectmen

wrongfully terminated her employment, and failed to take action

against Masella. Those allegations do not come close to meeting

the requisite “atrocious or utterly intolerable” standard. See

Konefal v. Hollis/Brookline Coop. Sch. Dist., 143 N.H. 256, 260,

723 A.2d 30, 33–34 (1998) (“‘Although discharging an employee

... may be illegal and reprehensible, a great deal more is

required to approach outrageous conduct. Such conduct is bad

conduct, but it is not outrageous and intolerable conduct.’”)

(quoting Lococo v. Barger, 958 F. Supp. 290, 298 (E.D. Ky.

1997)).6

intentional infliction of emotional distress claim against the

Town, Brace and the Selectmen is granted.

6 To the extent counsel now claims that the complaint adequately alleges that Brace and the Selectmen are vicariously liable for intentional infliction of emotional distress, he has failed to provide adequate legal support for such a claim.

32 Count V – Negligent Infliction of Emotional Distress (All Defendants)

Drake does not object to dismissal of this claim. See

Obj. to Mot. to Dismiss at p. 15. Accordingly, the Town

Defendants’ motion to dismiss Drake’s negligent infliction of

emotional distress claim is granted.

Count VII – Section 1983 – Procedural and Substantive Due Process; First Amendment (All Defendants)

Section 1983 claims against them. Drake asserts a procedural

due process claim, a substantive due process claim, and a claim

for violation of her First Amendment rights.

In support of her procedural and substantive due process

claim, Drake alleges that she had a property interest in her

position as a police offer, a liberty interest in pursuing and

engaging in her chosen profession, and a right to avail herself

of all internal, administrative and legal remedies.

She alleges that, pursuant to the Town’s written policies

and procedures, as well as the Standard Operating Procedures of

the New Boston Police Department, she was entitled to “fair

treatment,” and a “truthful, fair, speedy, prompt and impartial

investigation” required to be completed within 30-days. Compl.

¶ 159. Instead, Drake alleges, the investigation took five

33 months, and was not impartial because Brace had “full access and

exercised continuous influence” throughout the investigatory

process. Compl. ¶ 160. She further alleges that, while the

investigation was pending and she was on administrative leave,

she did not receive “overtime, detail pay or holiday pay she was

routinely accustomed to receiving,” which reduced the value of

her pension. Compl. ¶ 166-167. And, Drake says, the Town, the

Selectmen, and Brace did not follow “appropriate procedures”

“that were in place” when terminating her employment. Compl.

¶ 168. Thus, Drake says, she was deprived of her liberty and

property interests without due process.

1. Procedural Due Process

The Town Defendants contend that Drake has not stated a

procedural due process claim because her allegations demonstrate

that, prior to termination of her employment, the Town provided

Drake with the procedural guarantees to which she is entitled as

a public employee: notice, an explanation of the employer’s

evidence against her, and an opportunity to present her side of

the story.

Drake concedes that she was given notice of a hearing, an

opportunity to testify, and was allowed to cross examine Brace

and Masella. However, she argues, the process she received was

34 “corrupt.” Obj. to Mot. to Dismiss at p. 17. In support of

that argument, she points to her allegations regarding the

partiality and bias of Fisher’s purportedly independent

investigation (which, she contends, the Selectmen accepted as

impartial), including Brace’s alleged involvement in reviewing

and revising drafts of the investigation report. She argues

that the “entire proceeding was pre-determined and engineered by

Brace with the all too willing assistance of Masella and

Fisher.” Obj. to Mot. to Dismiss at p. 18.

To state a procedural due process claim, a plaintiff must

allege deprivation of a protected liberty or property interest

by the defendants without constitutionally adequate process.

See Senra v. Town of Smithfield, 715 F.3d 34, 38 (1st Cir.

2013). The Town Defendants assume arguendo that Drake has

sufficiently alleged a protected interest, and the court will as

well. Therefore, the relevant inquiry is whether Drake has

sufficiently alleged that she was “deprived of that property

interest without the minimum amount of process that was due

under the Constitution including ‘some kind of hearing’ and

‘some pretermination opportunity to respond.’” Senra, 715 F.3d

at 38–39 (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S.

35 532, 542 (1985) (internal punctuation omitted). As our court of

appeals has observed:

The Supreme Court made clear in [Cleveland Bd. of Educ. v.] Loudermill that when an employee is entitled to some process after termination, the purpose of the termination hearing is solely to serve as “an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.” 470 U.S. [532], 545–46 [(1985)]. It “need not be elaborate” as long as an employee receives (1) “oral or written notice of the charges against him,” (2) “an explanation of the employer's evidence,” and (3) “an opportunity to present his side of the story.” Id.

Chmielinski v. Massachusetts, 513 F.3d 309, 316 (1st Cir. 2008).

It is evident from Drake’s complaint that she received

notice, an explanation of the evidence against her, and an

opportunity to present her side of the story. See Compl.

¶¶ 102, 107, 108, 109. And, as previously mentioned, Drake does

not dispute that point. But, Drake argues, the process she

received was infected with bias and impartiality. With respect

to bias, the First Circuit has held “that there is no

requirement that the hearing officer be impartial; indeed, the

terminating employer may preside.... But that impartiality is

not demanded does not itself determine whether bias can be so

severe as to interfere with due process at the hearing itself.”

Jackson v. Norman, 264 Fed. Appx. 17, 19 (1st Cir. 2008)

(quoting Chmielinski v. Massachusetts, 513 F.3d 309, 318 (1st

36 Cir. 2008)). “To demonstrate such a due process violation

. . ., the plaintiff would have to show that the alleged bias

‘deprived [her] of the opportunity to put [her] facts before the

decisionmaker, or that there was an [ ] error of primary facts

in the grounds used for termination that could be explained only

by bias.’” Id. (quoting Chmielinski, 513 F.3d at 318).

Drake does not allege that she was deprived of the

opportunity to put her facts before the decisionmakers at her

termination hearing before the Selectmen. See Chmielinski, 513

F.3d at 318 (noting that “[a] key concern in Loudermill was that

the employee have an opportunity to present his side of things

to correct errors of fact on which the termination decision is

based”) (citing Loudermill, 470 U.S. at 545–46). Nor does Drake

allege any facts that support her argument that the hearing was

“predetermined” by Brace (especially given that Brace was not

the decisionmaker). See Gonzalez-Droz v. Gonzalez-Colon, 660

F.3d 1, 15 (1st Cir. 2011) (“Certainly, ‘a biased decisionmaker

[is] constitutionally unacceptable.’ But Jiménez's duties as

the Board's investigative officer do not involve

decisionmaking.”) (quoting Withrow v. Larkin, 421 U.S. 35, 47

(1975)). And, critically, Drake does not allege any facts that

would support a plausible inference that the Selectmen made a

37 decision to terminate her prior to the hearing, and that the

hearing was therefore a sham. See Chmielinski, 513 F.3d at 318

Instead, Drake’s allegations of bias and impartiality

relate to Fisher’s investigative process, including Brace’s

purported involvement, and the investigative report. But, “[a]

person who investigates and presents an agency's case, unlike a

decisionmaker, does not have to be neutral.” Gonzalez-Droz v.

Gonzalez-Colon, 660 F.3d at 15 (citations omitted). And, while

Drake alleges that Fisher’s investigative report was “defective

and biased,” she does not allege that Fisher’s report itself

(upon which she alleges the Selectmen relied in making their

termination decision) contained any erroneous factual findings,

let alone erroneous factual findings that could be explained

only by bias. See Chmielinski, 513 F.3d at 318 (upholding

dismissal of procedural due process claim where “[plaintiff’s]

complaint does not allege anywhere that any alleged bias . . .

deprived him of the opportunity to put his version of the facts

before the decisionmaker, or that there was any error of primary

facts in the grounds used for termination that could be

explained only by bias.”).

38 For all those reasons, Drake’s allegations are not sufficient

to support a claim of a violation of her due process rights.

2. Substantive Due Process

The Town Defendants also contend that Drake has not stated

a substantive due process claim. Such claims, they say, are

limited to government action that is conscious-shocking, and

Drake’s allegations do not come close to meeting that standard.

The court agrees that Drake has not pled facts sufficient to

support a substantive due process claim.

“The constitutional guarantee of substantive due process

‘functions to protect individuals from particularly offensive

actions on the part of government officials.’” Gonzalez-Droz,

660 F.3d at 15–16 (quoting Pagán v. Calderón, 448 F.3d 16, 32

(1st Cir. 2006)). Put differently, “a substantive due process

claim implicates the essence of state action rather than its

modalities.” Id. (internal quotations omitted). To state a

substantive due process claim, Drake must show “that the

challenged actions were ‘so egregious as to shock the

conscience.’” Id. (quoting Pagán, 448 F.3d at 32). “[T]he

challenged conduct must be ‘truly outrageous, uncivilized, and

39 intolerable.’” Id. (quoting Hasenfus v. LaJeunesse, 175 F.3d

68, 72 (1st Cir. 1999)).

The “hallmark” of a successful substantive due process

challenge “is an extreme lack of proportionality, as the test is

primarily concerned with violations of personal rights so

severe, so disproportionate to the need presented, and so

inspired by malice or sadism rather than a merely careless or

unwise excess of zeal that it amounted to a brutal and inhumane

abuse of official power literally shocking to the conscience.”

Gonzalez–Fuentes v. Molina, 607 F.3d 864, 881 (1st Cir. 2010)

(citation and internal punctuation omitted). Necessarily, then,

the threshold for stating a viable Fourteenth Amendment

substantive due process claim is a high one, “lest the

Constitution be demoted to what we have called a font of tort

law.” County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8

(1998). See also id. at 848 (“It should not be surprising that

the constitutional concept of conscience-shocking duplicates no

traditional category of common-law fault, but rather points

clearly away from liability, or clearly toward it, only at the

ends of the tort law's spectrum of culpability. Thus, we have

made it clear that the due process guarantee does not entail a

40 body of constitutional law imposing liability whenever someone

cloaked with state authority causes harm.”).

Viewing this body of law from a slightly different

perspective, the court of appeals has collected representative

cases in which the plaintiffs did state a viable substantive due

process claim:

Among the cases in which plaintiffs have prevailed [on substantive due process claims] are those involving a student blinded in one eye when a coach intentionally struck him in the head with a metal weight; a teacher's fabrication of sexual abuse charges against a father, resulting in loss of contact with his child for three years; rape by a police officer in connection with a car stop; a 57–day unlawful detention in the face of repeated requests for release; police officers aiding a third-party in shooting the plaintiff; an intentional assault by a police officer who struck a pretrial detainee twice in the head and threatened to kill him; and a principal forcing his way into a room where a student was hiding, grabbing her from the floor, throwing her against the wall, and slapping her.

Cummings v. McIntire, 271 F.3d 341, 346 (1st Cir. 2001)

(footnote and citations omitted). While it is plain that the

“shocks-the-conscience” test imposes a heavy burden on

plaintiffs seeking to vindicate substantive due process rights,

it is also somewhat vague. As the court of appeals has noted:

The “shock the conscience” test has been labeled “admittedly imprecise,” “virtually standardless,” “somewhat amorphous,” and “laden with subjective assessments.” Descriptions of what actions qualify as “conscience-shocking” often descend into a morass of adjectives that are as nebulous as they are

41 pejorative, including “truly irrational,” “extreme and egregious,” “truly outrageous, uncivilized, and intolerable,” and “stunning.” Meanwhile, actions that have not been found to shock the conscience have still been described as “despicable and wrongful.” It would seem that, at least at the margins, the shock-the- conscience test requires us to split the hairs of opprobrium.

Gonzalez–Fuentes, 607 F.3d at 879–81 (citations omitted).

Drake’s complaint groups her substantive due process claim

together with her procedural due process and First Amendment

claims, with no effort to identify exactly what specific

allegations she believes support her substantive due process

claim. However, in her brief, Drake argues that the following

allegations constitute “truly horrendous” conduct, and support

her claim: (1) “a superior officer, charged with upholding and

enforcing the laws of [the] state,” ordered “a subordinate to

falsify a police record;” (2) a female officer was terminated

for a violation for which a male officer received no discipline;

(3) a female officer was interrogated about a sexual harassment

complaint in the presence of the perpetrator; and (4) a female

officer was unjustly deprived of ever working as a police

officer because she followed a superior officer’s orders. Obj.

to Mot. to Dismiss at pp. 18-19.

With respect to the Town Defendants, Drake alleges that

they retaliated against her after she reported Masella’s

42 improper conduct, resulting in an unfair investigation into her

allegations and conduct, and ultimately her wrongful

termination. Assuming that the Town Defendants’ conduct was

motivated by bad faith, courts have found such allegations

insufficient to give rise to a substantive due process claim.

See, e.g., Thomas v. Town of Salisbury, 134 F. Supp. 3d 633, 647

(D. Mass. 2015) (“In the instant case, [plaintiff] has not

claimed more than an allegedly unfair investigation and

termination, which was eventually reversed through the

prescribed appellate process. He has cited no cases, and none

have been found, where such conduct, even if motivated by bad

faith, supports a substantive due process violation.”); Kraft v.

Mayer, No. 10-CV-164-PB, 2012 WL 235577, at *6 (D.N.H. Jan. 25,

2012) (“Even assuming that [plaintiff]'s termination resulted

from [defendants'] retaliatory animus and that other . . .

administrators condoned the retaliatory termination, their bad

faith motivation is insufficient to amount to conscience-

shocking behavior.”) (collecting cases); Cf., Frei v. Town Of

Holland, 212 Fed. Appx. 4, 6 (1st Cir. 2007) (“The substantive

due process claim based on allegations of perjury, falsification

of documents, and retaliatory action, fails under this circuit's

case law.”) (citing cases).

43 Similarly, Drake’s allegations that she was ordered to

falsify the September 2014 Report are insufficient to sink to

the “conscious shocking” level of a substantive due process

violation. Drake fails to cite a single case that would bolster

her position that such conduct was sufficiently egregious as to

shock the conscious. And, as stated by the court in Kraft v.

Mayer, 2012 WL 235577 at *5, “[a] review of case law involving

non-physical conduct . . . illustrates that the threshold for

establishing the requisite abuse of government power is high.”

(citing in support Cruz–Erazo v. Rivera–Montañez, 212 F.3d 617,

622-23 (1st Cir. 2000) (holding that months of harassment by

police officers, which included threats of physical violence,

insults, and the filing of unjustified charges, did not rise to

the level of conduct that shocks the conscience); Pittsley v.

Warish, 927 F.2d 3, 7 (1st Cir. 1991) (concluding that police

conduct was “despicable and wrongful,” but not conscience-

shocking, where police officers repeatedly threatened to kill

plaintiff and once threatened plaintiff's children with never

seeing their father again); and Phelps v. Bracy, Civ. Action No.

06–40090–GAO, 2007 WL 2872458, at *3 (D. Mass. Sept. 27, 2007)

(allegations that a corrections officer threatened, yelled at,

swore at, physically intimidated, and appeared to intend

44 imminent harm to a civilly committed person were insufficient to

shock the conscience)).

substantive due process claim against them is granted.

3. Violation of Drake’s First Amendment Rights

Finally, the court addresses the Town Defendants’ motion to

dismiss Drake’s First Amendment claim. In support of that

claim, Drake alleges that she has a constitutional right to

engage in free speech “without being ordered to lie,” and a

right to “report violations of the law.” Compl. ¶ 164. She

says that defendants’ actions deprived her of that right, but

does not specify exactly which actions taken by the defendants

operated to deprive her of her First Amendment rights, or even

exactly how she was deprived of those rights. But, read

generously, the gist of Drake’s First Amendment claim seems to

be that, because she reported misconduct by Masella and Brace,

the defendants retaliated against her, ultimately terminating

her employment.

The Town Defendants argue that Drake has not stated a claim

for violation of her First Amendment rights because she has not

adequately alleged that she was speaking as a “citizen.” They

contend that Drake’s allegations of punished speech (being

45 ordered to lie on a police report, and reporting alleged

violations of law) were all made in her official capacity as a

police officer.

While not entirely clear from her complaint, Drake seems to

allege two instances of protected speech: (1) her reporting of

Masella’s misconduct to her superior officers (in order to, she

alleges, “carry out her duties as a police officer,” Compl.

¶ 164); and (2) her reporting of misconduct by Masella and Chief

Brace when she filed a charge with the New Hampshire Human

Rights Commission and the EEOC (the “EEOC charge”). In both

instances, Drake says, she was speaking as a citizen, as she was

not expected to report misconduct by Brace and Masella to “co-

workers, [Brace], [an] investigator, the selectmen, state or

federal agencies, or attorneys” as part of her official

responsibilities.7 Obj. to Mot. to Dismiss at p. 17.

“[T]he First Amendment prohibits government officials from

subjecting an individual to retaliatory actions ... for speaking

out.” Decotiis v. Whittemore, 635 F.3d 22, 29 (1st Cir. 2011)

(quoting Mercado–Berrios v. Cancel–Alegria, 611 F.3d 18, 25–26

(1st Cir. 2010) (additional citation omitted). That “right is

7 While Drake argues in her brief that she reported misconduct by Brace and Masella to the Selectmen, Drake’s complaint does not clearly allege that she did so.

46 not absolute, however; while public employees do not forfeit all

of their First Amendment rights by undertaking public

employment, ‘in recognition of the government's interest in

running an effective workplace, the protection that public

employees enjoy against speech-based reprisals is qualified.’”

Decotiis, 635 F.3d at 29 (quoting Mercado–Berrios, 611 F.3d at

26).

Our court of appeals has articulated a three-part inquiry

“[t]o determine whether an adverse employment action against a

public employee violates her First Amendment free speech

rights.” Decotiis, 635 F.3d at 29 (citation omitted).

First, a court must determine “‘whether the employee spoke as a citizen on a matter of public concern.’” Curran v. Cousins, 509 F.3d 36, 45 (1st Cir. 2007) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). Second, the court must “balance ... the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. at 44 (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)) (omission in original). Third, the employee must “show that the protected expression was a substantial or motivating factor in the adverse employment decision.” Id. at 45.

Id. The first step, then, requires that Drake establish: (1)

her speech was of public concern; and (2) she spoke as a

citizen. Bolduc v. Town of Webster, 629 F. Supp. 2d 132, 146

(D. Mass. 2009).

47 A. Internal Reporting of Masella’s Misconduct

The Town Defendants seemingly do not dispute that Drake’s

reporting of Masella’s purported misconduct involved a subject

of public concern. It likely was. See, e.g., Thomas v. Town of

Salisbury, 134 F. Supp. 3d at 643 (“[plaintiff’s] speaking out

about [defendant’s] conduct in sexually harassing female

employees was on a subject of public concern. In fact, such

disclosures ‘are precisely the type of communications that

demand strong First Amendment protection.’”) (quoting Bennett v.

City of Holyoke, 230 F. Supp. 2d 207, 224 (D. Mass. 2002)

(statements “regarding corruption and racism within the Holyoke

police department were on matters of public concern.”))

Next, it must be asked whether Drake, when reporting

Masella’s misconduct to her superior officers, was speaking in

her capacity as a private citizen. To determine “whether speech

is made pursuant to [an] employee’s official duties,” the “court

must ask, ‘what are the employee’s official responsibilities?,’

and second, ‘was the speech at issue made pursuant to those

responsibilities?” Decotiis, 635 F.3d at 31.

To determine whether such speech was made pursuant to official responsibilities, the Court must take a hard look at the context of the speech. Although no one contextual factor is dispositive, we believe several non-exclusive factors, gleaned from the case law, are

48 instructive: whether the employee was commissioned or paid to make the speech in question; the subject matter of the speech; whether the speech was made up the chain of command; whether the employee spoke at her place of employment; whether the speech gave objective observers the impression that the employee represented the employer when she spoke (lending it “official significance”); whether the employee's speech derived from special knowledge obtained during the course of her employment; and whether there is a so-called citizen analogue to the speech.

Id. (internal citations omitted).

Here, Drake herself alleges that she reported the alleged

misconduct pursuant to her responsibilities as a police officer.

As previously mentioned, Drake alleges that she reported

misconduct to “carry out her duties as a police officer.”

Compl. ¶ 164. She further alleges: “Drake and [another officer]

fulfilled their duty to report sexual harassment in the

workplace by reporting the illegal conduct to their immediate

supervisor.” Compl. ¶ 53. In light of Drake’s repeated

allegations that she was fulfilling her duties as a police

officer by reporting misconduct to her superior officers, the

court is hard-pressed to find that those statements were not

made pursuant to her professional responsibilities as a police

officer. And, as the Town Defendants point out, applying the

factors described by the court of appeals in Decotiis, Drake

also alleges that she reported the alleged misconduct up the

chain of command, at her place of employment. While there may

49 be public citizen analogues, the court cannot conclude, given

the allegations in the complaint, that Drake’s reports to her

superior officers were made in her capacity as a private

citizen.

B. Filing of an EEOC Charge

Moving on to Drake’s filing of the EEOC charge, whether

that reporting can be characterized as a matter of public

concern is a closer call. Generally, courts that have

considered whether an EEOC charge is protected speech “have

eschewed a per se rule against finding such speech is or is not

protected, and have instead considered, on a case-by-case basis,

whether the nature and content of the EEOC charge at issue

relate only to matters directed [at] the employee's self-

interest or employment conditions, which are not matters of

public concern, or whether the charge relates to or includes

other matters which are legitimate matters of public concern.”

Sanders v. Leake County Sch. Dist., 546 F. Supp. 2d 351, 357

(S.D. Miss. 2008) (collecting cases). Where the plaintiffs’

EEOC charges implicates only the “private employment interests

of the plaintiff,” courts have held that such conduct does not

“constitute[] speech on a matter of public concern.” Cutrer v.

McMillan, 308 Fed. Appx. 819, 821 (5th Cir. 2009) (citing Short

v. City of West Point, Mississippi, 125 F.3d 853 (5th Cir. 1997)

50 and Ayoub v. Texas A & M Univ., 927 F.2d 834 (5th Cir. 1986));

see also Cox v. Shelby State Community College, 48 Fed. Appx.

500, 508–509, (6th Cir. 2002) (“EEOC charges, insofar as they

relate to purely personal employment issues, are not public

speech meriting First Amendment protection . . . . The relevant

question, therefore, is whether [plaintiff] was motivated to

file in order to make a statement about racial discrimination in

general on campus, or whether his career was his primary

concern.”); Stark v. Univ. of S. Mississippi, 8 F. Supp. 3d 825,

835 (S.D. Miss. 2014) (“Several authorities have found speech to

be private in nature notwithstanding the existence of an EEOC

charge.”) (collecting cases); cf. Friel v. Cty. of Nassau, 947

F. Supp. 2d 239, 257 (E.D.N.Y. 2013) (finding protected speech

where plaintiff's EEOC charge concerned how challenged policy

was causing “‘system-wide’ gender discrimination impacting all

female detectives, not just the Plaintiff”).

Thus, whether an EEOC charge constitutes a purely

personalized grievance requires a highly fact-based analysis.

Drake’s complaint fails to allege facts that would support a

plausible inference that her EEOC charge constituted speech on a

matter of public concern. And, her brief fails to address — or

even identify — the issue. “In opposing a Rule 12(b)(6) motion,

a plaintiff cannot expect a trial court to do his homework for

51 him. Rather, the plaintiff has an affirmative responsibility to

put his best foot forward in an effort to present some legal

theory that will support his claim.” McCoy v. Massachusetts

Inst. of Tech., 950 F.2d 13, 22–23 (1st Cir. 1991).

Accordingly, Drake’s First Amendment claim is dismissed,

albeit without prejudice to filing a motion to amend the

complaint to add such a claim, if she can do so in good faith.

In that event, counsel should be prepared to file a thorough and

pertinent memorandum of law fully discussing the legal tests

applicable in determining the viability of such a claim.

Count VIII – Section 1983 – Conspiracy to Violate Civil Rights (All Defendants)

Drake alleges that the individually named defendants

conspired to deprive Drake of her procedural rights, and her

property and liberty interests, in violation of the First, Fifth

and Fourteenth Amendments.

The Town Defendants move to dismiss Drake’s federal

conspiracy claim, arguing that she has not alleged facts

sufficient to show (1) an agreement between the defendants to

deprive her of rights; or (2) deprivation of her civil rights,

and, therefore, has not stated a claim. The court agrees, and

therefore grants the Town Defendants’ motion to dismiss Drake’s

federal conspiracy claim.

52 Count X – RSA 354-A: 2, 7, 19 – Sexual Harassment, Aiding & Abetting, Retaliation (All Defendants)

In support of her RSA 354-A claim, Drake alleges that the

named defendants unreasonably interfered with her work

performance by making inappropriate sexual comments with the

intent to create a hostile work environment, or by aiding and

abetting that conduct. She says that, through that conduct, the

named defendants created a hostile work environment. Drake

further alleges that, when she reported that conduct by filing a

charge with the EEOC and New Hampshire Human Rights Commission,

the individual defendants retaliated against her by

orchestrating a biased investigation into her complaint that

ultimately led to her termination.

1. Failure to Exhaust Administrative Remedies

The Town Defendants contend that Drake’s RSA 354-A claims

against Brace, Lovejoy, Quirk and Constance should be dismissed

because she has not exhausted her administrative remedies.

Drake, the Town Defendants say, filed her charge with the EEOC

and New Hampshire Human Rights Commission against the Town and

the New Boston Police Department, not against the Selectmen or

Brace. Because Drake failed to name those defendants in her

administrative complaint, the Town Defendants contend that the

court must dismiss Drake’s RSA 354-A claims against the

53 individual defendants for failure to exhaust available

administrative remedies.

To bring a claim under New Hampshire's Law Against

Discrimination, a party must first timely file a complaint with

the New Hampshire Human Rights Commission. See RSA 354–A:21–a.

“Such a complaint must be verified and ‘state the name and

address of the person ... alleged to have committed the unlawful

discriminatory practice complained of and ... set forth the

particulars thereof.’” Carney v. Town of Weare, No. 15-CV-291-

LM, 2017 WL 680384, at *6 (D.N.H. Feb. 21, 2017) (quoting RSA

354–A:21(I)(a)). “Under the Commission's regulations, ‘all

complaints of employment discrimination’ must be filed on an

EEOC charge of discrimination form or in a letter incorporating

the same information.” Id. (quoting N.H. Code Admin. R. Hum.

202.02(a)). “Naming a respondent in an administrative complaint

is often called a ‘charging requirement,’ and failure to comply

with that requirement ‘precludes a claim under RSA 354–A in

court.’” Id. (quoting Wilson v. Port City Air, Inc., No. 13–CV–

129–JD, 2013 WL 2631860, at *2 (D.N.H. June 12, 2013)).

“The New Hampshire Supreme Court has not had occasion to

consider whether there are any exceptions to RSA 354–A's

charging requirement.” Id. at *7. However, “the New Hampshire

54 Supreme Court relies on cases developed under Title VII to

interpret claims under RSA 354–A.” Salisbury v. Home Depot,

U.S.A., Inc., No. 14–CV–260–JD, 2014 WL 6750648, at *2 n.4

(D.N.H. Dec. 1, 2014). So, “[a]lthough federal case law is not

controlling, it is instructive when interpreting similar

statutory provisions and issues that the New Hampshire Supreme

Court has not yet decided.” Carney, 2017 WL 680384, at *6.

“[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). “For instance, under the

‘identity of interests’ exception, a party may file suit against

a defendant who was not originally named in the administrative

filing if there is a clear identity of interest between the

named and unnamed defendants.” Id. (citations omitted).

Burnett v. Ocean Properties Ltd., 2017 WL 1331134, is

instructive and persuasive. There, defendants argued that the

55 court should dismiss plaintiffs’ Title VII and state law claims

against a defendant who had not been named in the plaintiff’s

EEOC charge filed with the Maine Human Rights Commission. Id.

at *7. The court noted that, in McKinnon, 83 F.3d at 505, the

First Circuit cited Glus v. G.C. Murphy Co., 562 F.2d 880 (3rd

Cir. 1977), “in which the Third Circuit announced a four-factor

test to determine whether an identity of interest exists between

a named and unnamed defendant.” 2017 WL 1331134, at *7. Those

factors include:

1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of the named are so similar as the unnamed party's that for purposes of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.

Burnett, 2017 WL 1331134, at *7–8 (quoting Glus, 562 F.2d at

888). Noting that the Glus inquiry is a “fact-intensive” one,

and that defendants had not squarely addressed the “identity of

interests” exception in their briefing, the court determined

that a more fully developed factual record was necessary to

determine whether the “identity of interest” exception applied

in that case. Id. at 8.

56 So too, here. Neither Drake nor the Town Defendants

squarely mention the “identity of interest” exception in their

briefing, much less provide the requisite factual support for

their arguments. As in Burnett, a more fully developed factual

record is necessary for the court to determine whether the

“identity of interest” exception might apply. Accordingly, the

court declines, at this stage, to dismiss Drake’s RSA 354-A

claim against the Selectmen and Brace for failure to exhaust

2. Failure to State a Claim

The Town Defendants further argue that Drake’s RSA 354-A

claim against the Selectmen should be dismissed because she

fails to allege facts that implicate those defendants in the

purported harassment and retaliation. That argument is

similarly unpersuasive. While Drake’s allegations in support of

her claims against the Selectmen are unarguably meagre, they

are, at this stage of the litigation, sufficient to withstand

the Town Defendants’ motion to dismiss.

Count XI – 42 U.S.C. § 2000e-2 – Unlawful Gender Discrimination, Retaliation, Aiding & Abetting (All Defendants)

Drake concedes that her Title VII claim can only proceed

against the Town, and she agrees to dismissal against all other

defendants. See Obj. to Mot. to Dismiss at p. 21.

57 Count XII – RSA 98-E – Employee Freedom of Expression Law (Town)

Drake alleges that she reported her concerns regarding

purported “illegal and unethical activities” to her supervisors,

the Town Board of Selectmen, and the Manchester Police

Department. She says that by reporting that conduct, she was

furthering public policies and invoking her freedom of

expression. Drake alleges that the Town’s behavior constitutes

interference with her right to free speech, and to criticize

and/or disclose information, in violation of NH RSA 98:E-1.

New Hampshire RSA 98:E-1 provides that “a person employed

as a public employee in any capacity shall have a full right to

publicly discuss and give opinions as an individual on all

matters concerning any government entity and its policies.”

N.H. Rev. Stat. Ann. § 98-E:1. “The chapter prohibits a person

from ‘interfer[ing] in any way with the right of freedom of

speech, full criticism, or disclosure by any public employee.’”

Bellerose v. SAU No. 39, No. 13-CV-404-PB, 2014 WL 7384105, at

*8 (D.N.H. Dec. 29, 2014) (quoting N.H. Rev. Stat. Ann. § 98–

E:2).

The parties dispute whether Drake’s conduct is covered by

the statute. The Town Defendants argue that Drake does not

sufficiently allege that she was speaking as “an individual,”

58 nor does she allege that she publically discussed her concerns.

Drake disagrees.

Unfortunately, neither parties’ briefing addresses these

issues sufficiently to allow the court to resolve the

controlling question of law. Given the scarcity of state

precedent interpreting RSA 98:E-1 and the absence of developed

arguments, the court declines to wade into (likely novel) issues

of controlling state law without the benefit of adequate

briefing. Accordingly, the court denies the Town Defendants’

motion to dismiss the claim. The Town Defendants are, of

course, free to raise the issue at the summary judgment stage,

supported by a fully developed record and briefing.

Count XIII – Intentional Interference with Prospective Contractual Relations (Brace, Masella, Fisher and Town)8

intentional interference with contractual relations claim

against them. In support of her claim, Drake alleges that

defendants “purposely caused” the City of Manchester from

entering into an employment agreement with her. The Town

8 Drake has erroneously numbered her claims in the complaint, labeling this claim as a second “Count XII.”

59 Defendants argue that Drake’s claim against the Town is barred

by the workers’ compensation law. Drake disagrees.

The New Hampshire Supreme Court has held that for an injury

to be subject to the state's workers' compensation law, the

party seeking such coverage must prove:

(1) that the injury arose out of employment by demonstrating that it resulted from a risk created by the employment; and (2) that the injury arose in the course of employment by demonstrating that (A) it occurred within the boundaries of time and space created by the terms of employment; and (B) that it occurred in the performance of an activity related to employment, which may include a personal activity if reasonably expected and not forbidden, or an activity of mutual benefit to employer and employee.

Murphy v. Town of Atkinson, 128 N.H. 641, 645–46 (1986)

(emphasis supplied) (citations omitted). Given that standard,

the court finds the Town Defendants’ argument unpersuasive:

Drake’s alleged injury (the loss of her employment opportunity

with the Manchester Police Department) did not occur “within the

boundaries of time and space” of her employment with the New

Boston Police Department, or in her performance of an activity

related to her employment with the New Boston Police Department.

The Town Defendants further argue that Drake has not

sufficiently alleged causation. They point out that Drake fails

to even allege contact between the relevant parties, or the

requisite intent. Again, the argument is unpersuasive. Drake

60 alleges that she was “all but assured employment” by the

Manchester Police Department, and, inter alia, that Brace,

Masella and Fisher “caused [the Manchester Police Department] to

believe that Drake lacked credibility and would be [placed] on

the “Laurie List.”9 Compl. ¶ 113-114. Drake further alleges

that defendants’ conduct was purposeful. Compl. ¶ 230. The

Town Defendants’ remaining arguments are similarly unpersuasive.

While inarguably weak, Drake’s factual allegations are

sufficient to withstand the Town Defendants’ motion to dismiss.

Count IX – Violation of RSA 41:48 (Town)

Finally, the Town Defendants have moved to dismiss Drake’s

claim for violation of RSA 41:48. Drake agrees to dismissal of

the claim. See Obj. to Mot. to Dismiss at p. 25.

CONCLUSION

For the foregoing reasons, as well as those set forth in

the Town Defendants’ memoranda (documents no. 8-1 and 16), the

Town Defendants’ motion to dismiss (document no. 8) is GRANTED

9 In her Objection to the Town Defendants’ Motion to Dismiss, Drake argues that, once she informed her superiors that she would likely be hired by the Manchester Police Department, “Brace took it upon himself to call the Manchester Police Department,” and that, after Drake’s meeting with the Chief of the MPD was cancelled, she “was told the reason was Chief Brace.” Obj. to Mot. to Dismiss at p. 24. Those factual allegations, however, are absent from Drake’s complaint and so are not relevant.

61 in part and DENIED in part, as set forth herein. Drake has also

stipulated to dismissal of several claims she advanced against

Fisher and Masella. See document no. 18. Therefore, the

following claims are dismissed:

Count I, Drakes’ Civil Conspiracy claim, is dismissed against Brace.

Count II, Drake’s “Defamation Per Se and Ordinary Defamation” claims, is dismissed against all defendants.

Count IV, Drake’s Intentional Infliction of Emotional Distress claim, is dismissed against the Town Defendants.

Count V, Drake’s Negligent Infliction of Emotional Distress claim, is dismissed against all defendants.

Count VII, Drake’s Section 1983 claim for violations of procedural due process, substantive due process and the First Amendment, is dismissed against the Town Defendants.

Count VIII, Drake’s Section 1983 claim for conspiracy to violate her civil rights, is dismissed against the Town Defendants.

Count XI, Drake’s Title VII claim is dismissed against all defendants except for the Town of New Bedford.

Count XIV, Drake’s claim for violation of RSA 41:48, is dismissed against the Town of New Boston.

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.