Carlberg v. NH Dept of Safety et al. CV-08-230-PB 08/27/09
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
William Carey Carlberg, Jr.
v. Case N o . 08-cv-230-PB Opinion N o . 2009 DNH 126 New Hampshire Department of Safety, et al.
MEMORANDUM AND ORDER
William Carey Carlberg, Jr. alleges that he was wrongfully
decommissioned and demoted from the rank of Highway Patrol and
Enforcement Lieutenant to the rank of State Police Sergeant.
Before the court are cross motions for summary judgment with
respect to Count III of Carlberg’s Second Amended Complaint
alleging that Carlberg was wrongfully decommissioned without due
process of law by his employer, the New Hampshire Department of
Safety, and its Commissioner, John J. Barthelmes. For the
reasons given below, I conclude that defendants are entitled to
summary judgment.
I . BACKGROUND
A. Factual Background
On May 1 , 2007, Carlberg, an employee of the New Hampshire
Department of Safety, was deployed to active duty by the United States National Guard. At the time of his deployment, Carlberg
held the rank of Highway Patrol and Enforcement Lieutenant with
the Bureau of Highway Patrol and Enforcement within the Division
of Motor Vehicles at the New Hampshire Department of Safety.
While Carlberg was deployed, Barthelmes, with the approval
of the Governor and the Executive Council, reorganized the
Department by moving the Highway Patrol from the Division of
Motor Vehicles into the Division of State Police. A collective
bargaining agreement with terms relating to departmental
reorganization was in effect at the time. (Defs.’ Exhibit A - 1 ,
p . 2 9 , § 19.21, Doc. N o . 55-4.) The reorganization sought to
merge the two police forces in order to improve the
administration and efficiency of the Department of Safety. This
merger of the two police forces did not eliminate any classified
positions, but did involve a reclassification of Highway Patrol
and Enforcement Officer positions of various ranks. Where an
employee’s title or salary grade was changed, the employee’s
annual base salary was maintained through an adjustment in steps
within the new salary grade.
Prior to this reorganization, Carlberg was a commissioned
Lieutenant with the Bureau of Highway Patrol and Enforcement at
salary grade 27 step 6, with an annual salary of $73,248.75 and
-2- the possibility to advance two steps to an annual salary of
$79,863.77. In addition, in 2006, Highway Patrol Enforcement
Command Officers, including Carlberg, received a 2% wage
enhancement. As a result of the reorganization, Carlberg’s new
title became State Police Regulatory Sergeant II at salary grade
26 in the new Bureau of Driver and Vehicle Regulation within the
Division of State Police. When Carlberg was reclassified as a
Regulatory Sergeant II at salary grade 2 6 , he was placed at step
7 , with an annual salary of $73,248.75 without a 2% wage
enhancement. At salary grade 26 step 7 , Carlberg had the
possibility to advance one step to an annual salary of
$76,428.71. Carlberg contends that he was also decommissioned to
a non-commissioned status. The defendants contend that Carlberg
was not decommissioned; rather his rank was changed due to
reorganization in the Department of Safety. (Barthelmes
Affidavit, Defs.’ Exhibit A at ¶ 9, Doc. N o . 55-3.)
Carlberg was treated the same as the two other existing
Highway Patrol Lieutenants, who were also reclassified to the new
position of State Police Regulatory Sergeant II and reduced from
salary grade 27 to salary grade 26 with an adjustment of steps so
that base salaries would remain the same. Employees in positions
other than Highway Patrol Lieutenants were also reclassified to
-3- positions with new titles, although not all position
reclassifications were accompanied by a change in salary grade.
Carlberg received no prior notice of this reorganization and
learned of this personnel action in February 2008 while he was
deployed. On May 2 3 , 2008, Carlberg wrote Barthelmes a letter
demanding that he be immediately reinstated to the rank of
Lieutenant. Barthelmes responded to Carlberg, denying his
request and explaining that the personnel action was part of a
reorganization of the Department of Safety. Barthelmes further
explained that “[b]ecause the ranks in grades in the much smaller
Highway Patrol were inflated in comparison with the ranks and
grades of officers performing similar and in may cases more
complex duties in the State Police, it became necessary to adjust
the rank structure so the two would be similar.” (May 2 9 , 2008
Letter, Pl.’s Exhibit D, Doc. N o . 31-6.)
B. Procedural Background
Carlberg commenced this lawsuit on June 1 0 , 2008 and filed
his First Amended Complaint consisting of six counts on July 7 ,
2008. 1 Carlberg’s First Amended Complaint alleged violations of
1 The defendants named by Carlberg included the New Hampshire Department of Safety, John Barthelmes, individually and in his official capacity as Commissioner of the New Hampshire Department of Safety, Kelly Ayotte, individually and in her official capacity as Attorney General of the State of New
-4- his rights under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”)(Count I ) , his
Fourteenth Amendment procedural due process rights (Count I I ) ,
his First Amendment right to free speech (Count I I I ) , and state
law (Counts IV, V , and V I ) . 2 The Court dismissed Count I on
October 1 5 , 2008 and ordered the defendants to file a summary
judgment motion addressing Counts II and III of the First Amended Complaint.3
On November 1 4 , 2008, Carlberg filed a partial motion for
summary judgment on Count II of his First Amended Complaint,
Hampshire, Louis Copponi, individually and in his official capacity as an Officer of the New Hampshire Department of Safety, the Honorable Kenneth McHugh, in his official capacity as a Justice of the New Hampshire Superior Court, and John Does 1 through 1 0 . 2 Carlberg’s state law claims include discrimination under New Hampshire RSA Chapters 97 and 115-B, interference with his freedom of expression as guaranteed by New Hampshire RSA Chapter 98-E, and tortious constructive discharge in violation of public policy. 3 The Court dismissed Carlberg’s USERRA claims against the Department of Safety and the state defendants in their official capacities without prejudice. (October 1 5 , 2008 Order, Doc. N o . 2 9 ) . The Court also dismissed Carlberg’s USERRA claims against the individual defendants in their individual capacities for failure to state a claim. In addition, the Court dismissed all claims against Superior Court Judge Kenneth McHugh and Attorney General Ayotte for failure to state a claim. (Id.) Further, on April 7 , 2009 the Court granted Louis Copponi’s Motion for Summary Judgment on all counts in Carlberg’s First Amended Complaint. (April 7 , 2009 Margin Order.)
-5- claiming that he was demoted without due process. On December
1 2 , 2008, the defendants filed an objection to Carlberg’s partial
motion for summary judgment, and moved for summary judgment on
Counts II and III. Carlberg objected to the defendants’ summary
judgment motion.
On May 1 , 2009, Carlberg filed a Second Amended Complaint,
renumbering the counts from his earlier complaints and asserting
a new claim. Count I remains an allegation of a USERRA
violation. Count II remains an allegation that Carlberg was
wrongfully demoted without due process. Count III alleges
Carlberg’s new claim of wrongful decommissioning in violation of
his Fourteenth Amendment right to due process. Carlberg’s First
Amendment claim is renumbered as Count IV, and his state law
claims are renumbered as Counts V , V I , and VII.
On May 1 2 , 2009, I issued an order denying Carlberg’s motion
for partial summary judgment and granting the defendants’ motion
for partial summary judgment with respect to Carlberg’s claim of
wrongful demotion without due process of law (Count II) and his
claim that the defendants violated his First Amendment right to
free speech (Count III, renumbered as Count IV in Carlberg’s
Second Amended Complaint). I directed the parties to file
motions for summary judgment with respect to Carlberg’s new claim
-6- of wrongful decommissioning without due process of law (Count III
in Carlberg’s Second Amended Complaint).
Before the court are the parties’ cross motions for summary
judgment with respect to Carlberg’s wrongful decommissioning
claim.
II. STANDARD OF REVIEW
Summary judgment is appropriate when the “pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). The evidence submitted in support of the
motion for summary judgment must be considered in the light most
favorable to the nonmoving party, indulging all reasonable
inferences in its favor. See Navarro v . Pfizer Corp., 261 F.3d
9 0 , 93-94 (1st Cir. 2001)(citations omitted).
A party seeking summary judgment must first identify the
absence of any genuine issues of material fact. Celotex Corp. v .
Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the
nonmoving party to “produce evidence on which a reasonable finder
of fact, under the appropriate proof burden, could base a verdict
for i t ; if that party cannot produce such evidence, the motion
-7- must be granted.” Ayala-Gerena v . Bristol Myers-Squibb Co., 95
F.3d 8 6 , 94 (1st Cir. 1996); see Celotex, 477 U.S. at 323. The
opposing party “may not rely merely on allegations or denials in
its own pleading; rather, its response must . . . set out
specific facts showing a genuine issue for trial.” Fed. R. Civ.
P. 56(e)(2). On cross motions for summary judgment, the standard
of review is applied to each motion separately. See Am. Home
Assurance C o . v . AGM Marine Contractors, Inc., 467 F.3d 810, 812
(1st Cir. 2006).
III. ANALYSIS
Pursuant to 42 U.S.C. § 1983, Carlberg alleges that he was
wrongfully decommissioned without prior notice or a hearing in
violation of his right to procedural due process. (Second
Amended Compl., Doc. N o . 51 at ¶ 78.) “To establish a procedural
due process violation, a plaintiff must identify a protected
liberty or property interest, and allege ‘that the defendants,
acting under color of state law, deprived [him] of that . . .
interest without constitutionally adequate process.’” Aponte-
Torres v . Univ. of Puerto Rico, 445 F.3d 5 0 , 56 (1st Cir. 2006)
(internal citation omitted). Carlberg asserts a protected
property interest in his continued employment as a commissioned
-8- Lieutenant at salary grade 2 7 , which cannot be altered without
affording him procedural due process. He also asserts a
protected liberty interest in his reputation, which he alleges
was besmirched by the defendants’ actions. Defendants assert
that they are entitled to summary judgment on Count III because
the uncontested facts demonstrate that Carlberg was not deprived
of a constitutionally protected property or liberty interest.
1. Property Interest
To have a property interest in employment or in a specific
benefit under the due process clause, an employee “must have more
than an abstract need or desire for i t . He must have more than a
unilateral expectation of i t . He must, instead, have a
legitimate claim of entitlement to it.” Bd. of Regents v . Roth,
408 U.S. 564, 577 (1972). Thus, a claimant must demonstrate that
there were “rules or mutually explicit understandings that
support his claim of entitlement” to his position or benefit.
Perry v . Sindermann, 408 U.S. 593, 601 (1972). Property
interests are not created by the Constitution, but “they are
created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state
law-rules or understandings that secure certain benefits and that
-9- support claims of entitlement to those benefits.” Roth, 408 U.S.
at 577.
Carlberg cites no laws or regulations that explicitly
mention or define decommissioning to argue that he has a property
interest in his commission. Rather, Carlberg contends that his
property interest in his continued employment as a commissioned
Lieutenant stems from a New Hampshire statute that provides:
Any police employee may be suspended, discharged or demoted by the director for cause, with the approval of the commissioner of safety, but shall be entitled to a public hearing before discharge or demotion, but not suspension, if he so requests in writing addressed to the director not later than 10 days after notice of said discharge or demotion.
N.H. Rev. Stat. Ann. (“RSA”) § 106-B:5. Although decommissioning
is not mentioned in this statute, Carlberg argues that he has a
property right in his continued employment as a commissioned
officer and is entitled to the process afforded under RSA § 106-
B:5 because “to decommission an officer is to per se demote the
officer.” (Obj. to Defs.’ Mot. for Summ. J., Doc. N o . 6 3 , at 10
¶ 39.) He also relies on a personnel rule of the New Hampshire
Public Employee Labor Relations Board (“PELRB”) that defines
“demotion” as “a transfer of an employee from one position to
another position having a lower salary grade.” N.H. Admin. R.
Ann., Per 102.20. Thus, Carlberg argues that: he is entitled to
-10- due process before a demotion; a decommissioning is a per se
demotion; and it follows that he is entitled to due process
before a decommissioning.
Carlberg’s reliance on RSA § 106-B:5 and his contention that
the decommissioning of an officer is equivalent to demotion makes
his wrongful decommissioning argument nearly identical to the
argument I previously rejected when granting summary judgment for
the defendants on Carlberg’s wrongful demotion claim. I
reiterate here why Carlberg’s argument is unsuccessful and
elaborate on my analysis to address Carlberg’s claim that my
prior decision was incorrect.
Demotion is not defined within the governing statutory
chapter and it is not clear whether the definition of demotion
under the personnel rules governs the meaning of demotion under
RSA § 106-B:5. See In re New Hampshire Troopers Ass’n, 145 N.H.
288, 290, 761 A.2d 486, 489 (2000) (declining to decide whether
the personnel rules govern the meaning of demotion under RSA §
106-B:5 and applying a plain meaning analysis to determine that a
state police’s reclassification of “soft corporals” as “trooper
II’s” did not constitute a demotion because there was no
reduction in job duties, pay, or benefits). I need not decide
whether the definition of demotion under the PELRB personnel
-11- rules governs the meaning of demotion under RSA § 106-B:5,
however, because RSA § 106-B:5 only addresses the director’s
authority to take disciplinary action against an employee for
cause. Carlberg contends that RSA § 106-B:5 does not specify
that a demotion must result from discipline and he argues that
the “cause” in this case to bring the action under the statute’s
purview was Barthelmes’ conclusion that an adjustment of the rank
structure was necessary. The term “for cause”, however, plainly
means an action taken because of breach, misfeasance, or other
inappropriate action of the other party. Thus, RSA § 106-B:5
addresses only demotion for disciplinary reasons and Barthelmes’
conclusion that an adjustment of the rank structure was necessary
is not the sort of cause contemplated by the statute. Likewise,
PELRB personnel rule 1002.07, which Carlberg also cites,
addresses only disciplinary demotions.4
4 Carlberg also relies on the First Circuit’s opinion in Bergeron v . Cabral, 560 F.3d 1 (1st Cir. 2009), to argue that decommissioning is an “adverse employment action mandating constitutional due process protections.” (Pl.’S Mot. for Summ. J., Doc. N o . 59 at 10 ¶ 38.) This case, however, does not further Carlberg’s argument. In Bergeron, the First Circuit held that because only jail officers who were commissioned deputy sheriffs had opportunities to work paid security details, when the plaintiff jail officers were stripped of their commissions, they suffered an adverse employment action because their job responsibilities were constricted and their earning capacity was effectively reduced. 560 F.3d at 9-10. The court held that the the defendant was not entitled to qualified immunity because no
-12- In the present case, there is no evidence to indicate that
the personnel action in question was a disciplinary action for
cause. Rather, Carlberg was treated the same as two other
Highway Patrol Lieutenants as well as multiple other employees.
The evidence indicates that the personnel action was part of a
merger of the entire Bureau of Highway Patrol and Enforcement
into the Division of State Police. Thus, neither RSA § 106-B:5
nor PELRB personnel rule 1002.07 apply in this circumstance. The
fact that a departmental reorganization could have taken place
without any changes in title or rank, does not change this
analysis because there is no evidence that the changes were made
for disciplinary reasons.
A review of the personnel rules shows that the action taken
by the defendants in this case was a reclassification that was
reasonable public official could have thought that they she could take such an adverse employment action against the plaintiffs because of their political affiliations and exercise of First Amendment rights in that context. Id. at 1 3 . In the present case, however, I previously granted the defendants summary judgment on Carlberg’s First Amendment claim because Carlberg had offered no evidence to show that his speech was a substantial or motivating factor in his change of position. (May 1 2 , 2009 Order, Doc. N o . 53.) Further, whether Carlberg suffered an adverse employment action is not the relevant question in a wrongful decommissioning claim. Even if Carlberg’s alleged decommissioning was attended by the loss of other benefits and thus constituted an adverse employment action, that does not mean that Carlberg had a constitutionally protected property interest in his commission.
-13- part of a department wide reorganization. See N.H. Admin. R.
Ann., Per 102.46 (“‘Reclassification’ means a determination by
the director that a position be assigned to a class different
from the one in which it was previously assigned”). New
Hampshire state officials are authorized to change the internal
administrative departmental organization of the Department of
Safety, N.H. Rev. Stat. Ann. § 21-P:15, and in so doing may
reclassify a state employee or otherwise alter the employee’s
position. Reclassification into a position with a lower salary
grade is contemplated by the personnel rules:
If the director reallocates or reclassifies a position into a class with a lower salary grade, the incumbent’s salary shall be adjusted as follows:
(1) The incumbent’s salary shall not be reduced for a period of 2 years;
(2) If the incumbent was not at the maximum step, the incumbent shall be eligible for annual step increases at the former grade that do not exceed the maximum of the new grade, provided such increases are documented by performance evaluations;
(3) After a period of 2 years, the appointing authority shall adjust the incumbent’s salary downward by assigning the step in the lower salary grade in accordance with Per 901.07(a); and ` (4) When the incumbent leaves the position, the appointing authority shall post the vacancy at the adjusted salary level set for the position and not at the level assigned to the employee who held the position prior to reallocation or reclassification.
-14- N.H. Admin. R. Ann., Per. 303.06(b). In addition, the collective
bargaining agreement in effect at the time of the personnel
action contemplates departmental reorganization and requires
salaries to remain the same, but creates no property interest in
continued employment at a particular salary grade or rank in such
an event:
In the event of a departmental reorganization, the employer agrees to maintain the salary of each classified member of the union, unless such reorganization would result in a higher salary. If such reorganization results in any or all members being moved to another division within the department, the employer agrees to continue using the employee’s date of hire with the Department of safety as a means of determining seniority within said division.
(Defs.’ Exhibit A - 1 , p . 2 9 , § 19.21, Doc. N o . 55-4.)
In short, New Hampshire law draws a distinction between
disciplinary personnel actions for cause and personnel actions
taken in the course of departmental reorganization. While
employees have a right to a hearing when their employer proposes
to demote them for cause, they have no vested right to protection
from a departmental reorganization conducted in accordance with
the requirements of state law. Accordingly, once the Governor
and Executive Council approved Commissioner Barthelemes’
reorganization of the Department of Safety and reclassification
of employees, Carlberg possessed no entitlement to continued
-15- employment as a commissioned Lieutenant at salary grade 2 7 . See
Mandel v . Allen, 81 F.3d 478, 481-82 (4th Cir. 1996) (determining
that state employees had no property interest in their employment
entitling them to due process protections when they were
dismissed under authority specifically granted to state officials
for “nongrievable” circumstances); Buchanan v . Little Rock
School Dist., 84 F.3d 1035 (8th Cir. 1996)(determining that
school principal who was reassigned to administrative post had no
property interest in her status as principal where Arkansas law
did not create a right to remain a principal and transfer
provision provided school board authority to reassign).
Because Carlberg has not demonstrated that he had a
legitimate claim of entitlement to continued employment as a
commissioned Lieutenant at salary grade 2 7 , his claim that he was
deprived a protected property interest without due process of law
when he was wrongfully decommissioned fails as a matter of law.
2. Liberty Interest
Carlberg asserts a deprivation of a reputation-based liberty
interest, claiming that the defendants’ actions “negatively
impacted [his] good name, his honor, and [his] reputation, and
subjected [him] to embarrassment” from having his peers think
that he was decommissioned and demoted. (Pl.’s Mot. for Partial
-16- Summ. J., Doc. N o . 59 at ¶ 31.) “A public employer’s action may
deprive an employee of a constitutionally protected liberty
interest in his or her reputation” under certain circumstances.
Dasey v . Anderson, 304 F.3d 148, 155 (1st Cir. 2002). The First
Circuit has determined that
the Fourteenth Amendment procedurally protects reputation only where (1) government action threatens i t , (2) with unusually serious harm, (3) as evidenced by the fact that employment (or some other right or status) is affected. Moreover, the municipality terminating the employee must also be responsible for the dissemination of defamatory charges, in a formal setting (and not merely as the result of unauthorized “leaks”), and thereby significantly have interfered with the employee’s ability to find future employment.
Silva v . Worden, 130 F.3d 2 6 , 32-33 (1st Cir. 1997)(citations and
internal quotations omitted).
In the present case, Carlberg’s position within the
Department of Safety, along with the positions of a number of
other employees, was reclassified in order to improve the
administration and efficiency of the Department. The
reclassification resulted in a change of title, rank, and salary
grade for Carlberg, but the evidence does not demonstrate that
the reclassification reflected poorly on Carlberg’s reputation.
Although the departmental reorganization did not effect every
transferred officer’s title, rank, and salary grade, Carlberg was
treated the same as two other Highway Patrol Lieutenants and
-17- numerous other Highway Patrol Officers. Further, there is no
evidence that his reclassification was a disciplinary action.
More importantly, there is no evidence that the defendants
disseminated any negative or defamatory information about
Carlberg or the reasons for his reclassification. All the
documents presented to the court indicate that the personnel
action was a reclassification that was not personal to Carlberg,
and nothing suggests any defamatory disclosures by the
defendants. Absent dissemination of defamatory information about
Carlberg by the defendants or harm to his reputation, Carlberg
has no protected liberty interest or constitutional right to
name-clearing hearing.
Because Carlberg did not present any evidence of conduct by
the defendants that would constitute a deprivation of a
constitutionally protected property or liberty interest without
due process of law, his claim fails and defendants are entitled
to summary judgment on Count III of Carlberg’s Second Amended
Complaint.
IV. CONCLUSION
For the foregoing reasons, I deny Carlberg’s partial motion
for summary judgment (Doc. N o . 5 9 ) . I grant the defendants’
-18- partial motion for summary judgment on Carlberg’s claim of
wrongful decommissioning (Doc. N o . 5 5 ) . This Order and my
previous Orders have resolved all of Carlberg’s federal claims.
In addition, I have dismissed all of Carlberg’s state law claims
against former Attorney General Kelly Ayotte and Superior Court
Judge Kenneth McHugh, and have granted summary judgment to Louis
Copponi on Carlberg’s state law claims. Carlberg’s remaining
claims are state law claims against the New Hampshire Department
of Safety and its Commissioner, John Barthelmes. I decline to
exercise supplemental jurisdiction over Carlberg’s remaining
state law claims. Accordingly, I dismiss those claims without
prejudice. The clerk is directed to enter judgment and close the
case in accordance with this Memorandum and Order.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
August 2 7 , 2009
cc: William Carey Carlberg, Jr. Laura E.B. Lombardi, Esq. Glenn R. Milner, Esq. James W . Donchess, Esq.
-19-