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 068 New Hampshire Department of Safety, et a l .
MEMORANDUM AND ORDER
William Carey Carlberg, J r . alleges that he was improperly
demoted from the rank of Highway Patrol and Enforcement
Lieutenant to the rank of State Police Sergeant at a lower salary
grade. Before the court are cross motions for summary judgment
with respect to Counts II and III of Carlberg’s First Amended
Complaint. Count II alleges that Carlberg was wrongly demoted
without due process of law by his employer, the New Hampshire
Department of Safety, and its Commissioner, John J. Barthelmes.
Count III alleges that defendants violated Carlberg’s First
Amendment right to free speech by demoting him and constructively
terminating him in retaliation for his public criticisms of New
Hampshire Department of Safety practices. For the reasons given
below, I conclude that defendants are entitled to summary
judgment on both counts. 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. (Def. Exhibit A - 5 , p .
2 9 , § 19.21.) 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
-2- 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
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 I I , a non-
commissioned position 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 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
-3- Lieutenants were also reclassified to 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.” (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. Carlberg’s First Amended Complaint alleges violations of
his rights under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”)(Count I ) , his
-4- 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 ) . 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.
On November 1 4 , 2008, Carlberg filed a partial motion for
summary judgment on Count II of his First Amended Complaint,
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 has 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 now 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.
-5- 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).
A party seeking summary judgment must first identify the
absence of any genuine issues of material fact. Celotex Corp. v .
Catrett, 477 U.S. 3 1 7 , 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
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
-6- of review is applied to each motion separately. See Am. Home
Assur. C o . v . AGM Marine Contractors, Inc., 467 F.3d 8 1 0 , 812
(1st Cir. 2006).
III. ANALYSIS
In Count I I , Carlberg claims a violation of his Fourteenth
Amendment right to procedural due process when he was allegedly
wrongfully demoted. Count III of Carlberg’s First Amended
Complaint (renumbered as Count IV of his Second Amended
Complaint) alleges a violation of his First Amendment right to
free speech in connection with an alleged adverse employment
action. I address each count in turn.
A. Wrongful Demotion Claim
Pursuant to 42 U.S.C. § 1983, Carlberg alleges that he was
wrongfully demoted without prior notice or a hearing in violation
of his right to procedural due process. (First Amended Compl.,
Doc. N o . at ¶ 65.) “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) (citations omitted).
-7- Carlberg asserts a protected property interest in his continued
employment at the rank of 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 II 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. 5 6 4 , 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
-8- law-rules or understandings that secure certain benefits and that
support claims of entitlement to those benefits.” Roth, 408 U.S.
at 577.
Carlberg contends that his property interest in his
continued employment at the rank of Lieutenant at salary grade 27
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. He argues that he has a
property right in his continued employment and is entitled to the
process afforded under RSA § 106-B:5 because he was demoted. 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.
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.
-9- 288, 2 9 0 , 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 decided
whether the definition of demotion under the PELRB personnel
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. Likewise, PELRB personnel rule 1002.07, which Carlberg
also cites, addresses only disciplinary demotions. 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.
In this case, a review of the personnel rules shows that the
action taken was a reclassification that was part of a department
-10- 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.
-11- 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 in such an
event:
In the event of a departmental reorganization, the employer agrees to maintain a 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.
(Def.’s Exhibit A - 5 , p . 2 9 , § 19.21.)
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
-12- of employees, Carlberg possessed no entitlement to continued
employment at the rank of Lieutenant at salary grade 2 7 . See
Mandel v . Allen, 81 F.3d 4 7 8 , 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 at the
rank of 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 demoted 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
-13- that he was demoted. (Pl.’s Mot. for Partial Summ. J., Doc. N o .
31 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 1 4 8 , 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 was neither fired nor demoted.
Rather, 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 and salary grade for Carlberg, but the evidence
does not demonstrate that the reclassification reflected poorly
on Carlberg’s reputation. He was treated the same as two other
-14- Highway Patrol Lieutenants and numerous other Highway Patrol
Officers. Further, there is no evidence that his reclassifi-
cation 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 I I .
B. First Amendment Claim
Carlberg alleges that the he was “demoted and effectively
constructively terminated in retaliation for his public
criticisms of New Hampshire Department of Safety practices.”
-15- (First Amended Cmplt., Doc. N o . 11 at ¶ 72.) Defendants assert
that they are entitled to summary judgment on Count III (now
renumbered as Count IV) because there is no evidence to support
Carlberg’s claim that an adverse employment action was taken
against him in retaliation for his public criticism of Department
of Safety practices.
“Public employees do not lose their First Amendment rights
to speak on matters of public concern simply because they are
public employees.” Curran v . Cousins, 509 F.3d 3 6 , 44 (1st Cir.
2007) (citing Connick v . Myers, 461 U.S. 1 3 8 , 142 (1983)). “[A]
State may not discharge an employee on a basis that infringes
that employee’s constitutionally protected interest in freedom of
speech[.]” Aponte-Torres, 445 F.3d at 56 (quoting Rankin v .
McPherson, 483 U.S. 3 7 8 , 383 (1987)). However, an individual’s
First Amendment rights are not absolute and in order for a public
employee’s speech to be protected by the First Amendment, the
employee must make a prima facie showing that (1) he spoke as a
citizen on a matter of public concern; (2) his interest in the
speech outweighed any countervailing government interest in
promoting the efficient performance of the service provided by
its employees; and (3) the protected speech was a substantial or
motivating factor in an adverse employment decision. Torres-
-16- Rosado v . Rotger-Sabat, 335 F.3d 1 , 11 (1st Cir. 2003). If the
court finds that the employee has made a prima facie showing,
then the burden shifts to the defendants to show by a
preponderance of the evidence that the governmental agency would
have taken the same action “even in the absence of the protected
conduct.” M t . Healthy City School Dist. Bd. of Educ. v . Doyle,
429 U.S. 2 7 4 , 287 (1977).
In the present case, the parties debate whether an adverse
employment action was taken against Carlberg. Actions including
dismissals, demotions, denials of promotions, and transfers can
constitute adverse employment actions. Welch v . Ciampa, 542 F.3d
927, 936 (1st Cir. 2008). In addition, actions that result in
the loss of supervisory positions, additional duties, and
opportunities for additional pay can constitute adverse
employment actions. Id. Further, a constructive discharge can
constitute an adverse employment action. Constructive discharge
may consist of “harassment so severe and oppressive that staying
on the job while seeking redress-the rule save in exceptional
cases-is ‘intolerable.’” Reed v . MBNA Mktg. Sys., Inc., 333 F.3d
2 7 , 33 (1st Cir. 2003)(quoting Keeler v . Putnam Fiduciary Trust
Co., 238 F.3d 5 , 9-10 (1st Cir. 2001)). “To prove constructive
discharge, a plaintiff must usually show that [his] working
-17- conditions were so difficult or unpleasant that a reasonable
person in [his] shoes would have felt compelled to resign. The
standard is an objective one; an employee’s subjective
perceptions do not govern.” Lee-Crespo v . Schering-Plough Del
Caribe Inc., 354 F.3d 3 4 , 45 (1st Cir. 2003)(internal quotations
and citations omitted).
I need not decide whether the personnel action in question
constitutes an adverse employment action in this case, however,
because Carlberg has offered no evidence to show that his speech
was a substantial or motivating factor in his change of position.
All of the evidence presented indicates that Carlberg was neither
a target of any disciplinary action nor treated any differently
than other Highway Patrol and Enforcement officers.
Specifically, Carlberg was treated the same as all three
Lieutenants in the Highway Patrol when his position was
reclassified as part of a department wide reorganization. While
Carlberg need not produce a “smoking gun” to carry his initial
burden that his speech was a substantial or motivating factor in
the personnel action, he must adduce some evidence suggesting
that his speech played a role in the personnel action. See Lewis
v . City of Boston, 321 F.3d 2 0 7 , 219 (1st Cir. 2003). Carlberg,
however, has produced no evidence to demonstrate that his speech
-18- was a substantial or motivating factor in the personnel action.
Nor has Carlberg produced any evidence to demonstrate that
actions were taken against him personally and that his reclassi-
fication was not a part of a department wide reorganization.1
In sum, Carlberg has failed to rebut defendants’ contention
that he has not made a prima facie showing that he was
reclassified in retaliation for public criticisms of the
Department of Safety. Thus, the defendants are entitled to
summary judgment on Count III (now renumbered as Count I V ) .
1 Federal Rule of Civil Procedure 56(f) provides that if a party opposing a motion shows by affidavit that, for specified reasons, its cannot present facts essential to justify its opposition, a court may: (1) deny the motion; (2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue an other just order. To the extent that Carlberg claims that summary judgment would be premature because he has not been able to obtain evidence to support his allegations, he has not complied with Rule 56(f). See Rivera-Torres v . Rey-Hernandez, 502 F.3d 7 , 10 (1st Cir. 2007)(To invoke Rule 56(f), a party must submit an affidavit or other document showing (i) good cause for his inability to have discovered the necessary facts; (ii) a plausible basis for believing that additional facts probably exists and can be retrieved within a reasonable time; and (iii) an explanation of how those facts will be material to his opposition); Adorno v . Crowley Towing & Transp. Co., 443 F.3d 122, 127-28 (1st Cir. 2006). Carlberg has not given any reasons why he cannot present facts needed to oppose the defendants’ summary judgment motion. Therefore, this is not a valid reason to deny summary judgment.
-19- IV. CONCLUSION
For the foregoing reasons, I deny Carlberg’s partial motion
for summary judgment (Doc. N o . 3 1 ) . I grant the defendants’
motion for partial summary judgment with respect to Carlberg’s
claim of wrongful demotion without due process of law (Count II)
and Carlberg’s claim that the defendants violated his First
Amendment right to free speech (Count I I I , renumbered as Count IV
in Carlberg’s Second Amended Complaint) (Doc. N o . 3 5 ) .
The parties are directed to file motions for summary
judgment with respect to Carlberg’s new claim of wrongful
decommissioning without due process of law (Count III in
Carlberg’s Second Amended Complaint) within ten days of this
order. Objections shall be filed within ten days of the filing
of summary judgment motions. No reply memoranda shall be filed.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
May 1 2 , 2009
cc: William Carey Carlberg, J r . Laura E.B. Lombardi, Esq. Glenn R. Milner, Esq. James W . Donchess, Esq.
-20-