Carney v. Town of Weare, et al.

2017 DNH 031

• Court: District Court, D. New Hampshire
• Decided: February 21, 2017
• Docket: 15-cv-291-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

James J. Carney

v. Civil No. 15-cv-291-LM Opinion No. 2017 DNH 031 Town of Weare, et al.

O R D E R

James J. Carney brings suit against the Town of Weare (“the

Town”), its Board of Selectman, its Town Administrator, several

of its police officers, and its legal counsel, Mark Broth,

alleging state and federal claims arising from his employment as

an officer in the Weare Police Department. The defendants move

for judgment on the pleadings on several of Carney’s claims.

Carney objects.

Legal Standard

In assessing a motion for judgment on the pleadings, the

court construes “all well-pleaded facts in the light most

favorable to the non-moving party and draw[s] all reasonable

inferences in that party's favor.” Najas Realty, LLC v. Seekonk

Water Dist., 821 F.3d 134, 140 (1st Cir. 2016). Judgment on the

pleadings is appropriate if “the complaint fails to state facts

sufficient to establish a claim to relief that is plausible on

its face.” Id. The standard “is the same as that for a motion to dismiss under Rule 12(b)(6).” Frappier v. Countrywide Home

Loans, Inc., 750 F.3d 91, 96 (1st Cir. 2014), cert. denied, 135

S. Ct. 179 (2014).

Factual Background1

Carney served on the Weare Police Department (“WPD”) for

over twenty years, achieving the rank of Lieutenant in 2007. In

the summer of 2012, Carney was accused of making harassing

telephone calls to Louis Chatel, the plaintiff in a lawsuit

against Carney and the Town. Around the same time, Broth,

counsel for Carney and the Town in the Chatel case, informed

Carney that he was withdrawing as his counsel but would continue

representing the Town.

Later in the fall, the WPD hired an attorney to investigate

allegations that Carney had vandalized department property.

Broth advised the attorney about the procedures that he should

use while conducting his investigation. Carney requested that

the subject of the investigation be expanded to include the

harassing calls allegation, but Broth and the Town rejected that

request.

In December of 2012, Broth called Carney and questioned him

about allegations that Carney disclosed WPD personnel

1 The facts in this section are taken from Carney’s Second Amended Complaint (“the complaint”), which is the operative complaint in this action. Doc. no. 21. 2 information to outside agencies without proper authorization.

Carney alleges that this telephone call was part of an ongoing

internal affairs investigation that Broth was conducting against

him.

In January 2013, a WPD officer filed a sexual harassment

complaint concerning an incident in which several officers,

including Kenneth Cox, Frank Hebert, Kimberly McSweeney,2 and

Brandon Montplaisir, spread rumors about an extramarital affair

between Carney and a female Town employee. Cox, Montplaisir,

and Hebert used “rude . . . and lewd” terminology to describe

the alleged affair. Carney met with WPD Chief, Gregory Begin,

and requested an internal investigation concerning the incident.

On March 1, Broth attended a meeting with Thomas Clow, a

member of the Board of Selectman; Naomi Bolton, the Town’s Town

Administrator; and several WPD employees including Cox, Hebert,

McSweeney, Montplaisir, Nicholas Nadeau, and Shelia Savaria

(“the Police Defendants”). During that meeting, the Police

Defendants raised numerous allegations against Carney. Carney

contends that these allegations were false and were the result

of a conspiracy among the Police Defendants to cause Carney’s

termination from the WPD. Carney further alleges that Broth

knew that these allegations conflicted with positive testimony

Kimberley McSweeney is erroneously referred to as Kimberly 2

Sweeney in the complaint’s caption. 3 about Carney that Cox, Hebert, and Montplaisir gave in the

Chatel case.

Three days later, the Board of Selectman voted to place

Carney on administrative leave. Based on orders from Broth and

the Town, Begin wrote a memorandum to WPD employees announcing

the decision and instructing them not to have any contact with

Carney. Carney also received a letter confirming that he was on

administrative leave and prohibiting him from contacting any WPD

employee except Begin. While on leave, the WPD paid Carney

“only 40% of his usual salary.” Doc. no. 21 at ¶ 233.

On March 28, Broth hired attorney John Vinson to conduct a

formal investigation into the allegations concerning Carney.

Those allegations included, among other things, claims that

Carney threatened to harm WPD employees and a confidential

informant, intimidated subordinates, coerced support from

coworkers for his appointment to captain, maintained an

inappropriate intimate relationship with a WPD employee, and

shared WPD personnel information with subordinates and third

parties. Broth placed his advice to Vinson about how to conduct

the investigation in a letter, which, Carney contends, contained

legally erroneous instructions.

Carney alleges that the investigation was procedurally

flawed and was a delay tactic on the part of Broth and the Town

“to force Carney out of the workforce.” By July 1, 2013, the

4 WPD had not notified Carney about the results of the

investigation. At that time, Carney, who was still on

administrative leave, resigned from the WPD. Carney alleges

that the stress and uncertainty of the investigation forced him

to resign. Five months later, Carney filed a complaint with the

New Hampshire Commission for Human Rights alleging that he was

sexually harassed and that Weare and the WPD, through launching

an internal investigation and placing him on administrative

leave, had illegally retaliated against him.

Carney then brought this suit against the following

defendants: the Town; Broth; the Police Defendants; Bolton; and

the members of the Weare Board of Selectmen, Richard W. Butt,

Keith Lacasse, John C. Lawton, James Leary, and Clow.3 Carney’s

complaint alleges a variety of claims against these defendants

under common law, federal civil rights laws, and New Hampshire

Statutes, including claims for:

 civil conspiracy against Broth and the Police Defendants (Count I)

 defamation against all defendants (Count II)

 interference with a contractual relationship against Broth, the Police Defendants, and the Individual Town Defendants (Count III)

 intentional infliction of emotional distress against all defendants (Count IV)

3The court refers to Bolton, Butt, Lacasse, Lawton, Leary, and Clow collectively as “the Individual Town Defendants.” 5  negligent infliction of emotional distress against Broth, the Individual Town Defendants, and the Police Defendants (Count V)

 42 U.S.C. § 1983 claim for violation of Carney’s First Amendment Rights against the Town, Broth, and the Individual Town Defendants (Count VI)

 § 1983 claim for violation of due process against the Town, Broth, and the Individual Town Defendants (Count VII)

 § 1983 claim for conspiracy to violate civil rights against all defendants (Count VIII)

 wrongful termination against The Town (Count IX)

 sexual discrimination, retaliation, and aiding and abetting claims against all defendants under New Hampshire’s Law Against Discrimination, RSA 354-A (Count X)

 violation of New Hampshire’s Whistle Blower Protection Act, RSA 275-E against the Town (Count XI)

 gender discrimination and retaliation against the Town under Title VII, 42 U.S.C. § 2000e-2 (Count XII)

 violation of New Hampshire’s Employee Freedom of Expression Law, RSA 98-E against the Town (Count XIII)4

Discussion

The Town, Broth, the Police Defendants, and the Individual

Town Defendants each move separately for judgment on the

pleadings on several of Carney’s claims. For clarity’s sake,

the court will address the motions for the Town, the Police

4The complaint also alleges several claims on behalf of Tracey Carney, Carney’s wife, including a loss of consortium claim (Count XIV). Those claims have been dismissed from this action. See Endorsed Order (dated Aug. 25, 2016).

6 Defendants, and the Individual Town Defendants (doc nos. 35, 36,

37), all of which raise overlapping issues, separately from

Broth’s motion (doc. no. 31).

I. Motions for the Town, Police Defendants, and Individual Town Defendants

Although the motions for the Town, the Police Defendants,

and the Individual Town Defendants differ in substance, the

arguments therein fall into the following general categories:

 Preclusion Arguments: The Town, the Police Defendants, and

the Individual Town Defendants move for judgment on the

pleadings on Carney’s claims for wrongful termination and

interference with a contractual relationship, arguing that

an arbitration decision between the Town and Carney’s union

precludes those claims.5

 Sexual Harassment Claims: The Police Defendants and the

Individual Town Defendants each move for judgment on

Carney’s claims under RSA 354-A, arguing that the complaint

does not allege actionable sexual discrimination and that

Carney did not exhaust his administrative remedies. The

Town moves for judgment on the pleadings on Carney’s sexual

The Town and the Individual Town Defendants also moved for 5

judgment on the pleadings on these claims based on the Labor Management Relations Act, 29 U.S.C. § 301. Weare and the Individual Town Defendants have conceded, however, that the LMRA does not apply to public employees and have withdrawn their arguments based on that statute. 7 harassment claims against it, also arguing that Carney has

not alleged actionable sexual harassment.

 Defamation Claims: The individual town defendants also

move for judgment on the pleadings on Carney’s claims for

defamation, arguing that Carney has failed to plead that

they published any statements about him.

In response to the Police Defendants’ motion, Carney filed

an objection on August 1, 2016. See doc. no. 40. Because that

objection attached an exhibit containing personal identifiers,

Carney refiled his objection with a redacted exhibit on August 6

(see doc. no. 46). The objection that Carney filed, however,

was substantively different from the first objection that Carney

filed five days earlier. Carney contends that this was because

that document “was not the final product, but the draft which

was mistakenly filed.” Doc. no. 60. Carney’s counsel “refiled”

the objection without notifying the court or the Police

Defendants’ counsel that he was filing a substantively different

objection. Carney’s decision to file a different objection and

the accompanying omission of that fact is an end around the

applicable deadlines for responding to dispositive motions.

Accordingly, the court will only consider material in Document

no. 46 to the extent that material was included in Document no.

40.

8 A. Preclusive Effect of Arbitration Award

The Town moves for judgment on the pleadings on Carney’s

claim for wrongful termination, arguing that the claim is barred

by the doctrine of res judicata. In support, the Town attaches

a decision in an arbitration between AFSCME, Carney’s union, and

itself, which, the Town contends, determined that Carney

voluntarily resigned from the WPD and was not discharged. Doc.

no. 36-2. Similarly, the Police Defendants and Individual Town

Defendants move for judgment on the pleadings on Carney’s claims

for interference with a contractual relationship, arguing that

the arbitration award is determinative of an essential element

of those claims: whether the Town breached its employment

contract with Carney. In support, those defendants also attach

the arbitration decision to their motions. Doc. no. 35-2.

In response, Carney argues that the arbitration award

cannot be considered at this stage of the litigation and that

the award is misleading because it does not include the entire

arbitration record. Carney further contends that the

arbitration award is not preclusive and that it is appealable.

1. Consideration of the Arbitration Award

On a motion for judgment on the pleadings, the court

“ordinarily may consider only facts contained in the pleadings

and documents fairly incorporated therein, and those susceptible

9 to judicial notice.” Mercury Sys., Inc. v. S'holder

Representative Servs., LLC, 820 F.3d 46, 51 (1st Cir. 2016).

Federal Rule of Evidence 201 governs whether a fact is

judicially noticeable. Under Rule 201, a court “may judicially

notice a fact that is not subject to reasonable dispute because

it . . . is generally known within the trial court's territorial

jurisdiction . . . or can be accurately and readily determined

from sources whose accuracy cannot reasonably be questioned.”

Fed. R. Evid. 201(b)(1)&(2). “The party requesting judicial

notice bears the burden of persuading the trial judge that the

fact is a proper matter for judicial notice.” AES Puerto Rico,

L.P. v. Trujillo-Panisse, No. CV 14-1767 (FAB), 2016 WL 4016825,

at *1 (D.P.R. July 27, 2016) (internal quotation marks omitted).

Generally, public records, such as administrative

decisions, state court decisions, and statewide standards are

noticeable under this standard. See Freeman v. Town of Hudson,

714 F.3d 29, 37-38 (1st Cir. 2013) (citing cases). The Town,

the Police Defendants, and the Individual Town Defendants

contend that the arbitration decision is a public record because

it is from the New Hampshire Public Employee Labor Relations

Board (the “PELRB”). In response, Carney contends that the

arbitration decision is not a public record but rather a

decision from a private arbitration. Carney argues that the

10 arbitration’s only link to the PELRB is that the parties to the

arbitration used that agency to select a neutral arbitrator.

Here, although the defendants contend that the arbitration

award is a public record from the PELRB, they present no

argument to support that assertion. To the contrary, the

circumstances appear to support Carney’s characterization of the

award as a private arbitration in which the PELRB merely

assisted the parties in nominating an arbitrator. The PELRB’s

regulations permit parties to request the appointment of a

neutral arbitrator from a list of qualified parties that the

PELRB maintains. N.H. Code Admin. R. Pub. 102.1(e); 305.02(a)-

(c). And Betty Waxman, the arbitrator who issued the decision,

is on this list and appears to be a private attorney, not a

staff member of the PELRB. See NH PELRB List of Neutrals,

available at https://www.nh.gov/pelrb/neutrals

/documents/list.pdf, (listing Betty Waxman as a neutral

available to conduct arbitration). Defendants do not explain

how the arbitration decision, which appears to have been decided

by a non-public, neutral arbitrator, is a public record.6

The arbitration decision contains a heading that states 6

“State of New Hampshire Public Employee Labor Relations Board.” Neither party, however, addresses this heading. For the reasons discussed above, the court concludes that such a heading is not dispositive of the arbitration decision’s status as a public record.

11 Accordingly, defendants have not met their burden of

demonstrating that the arbitration decision is noticeable under

Fed. R. Evid. 201.

This decision is in accord with the decisions of other

federal courts who have held that private arbitration awards are

not appropriate for consideration at the pleadings stage. See

United States v. Speakman, 594 F.3d 1165, 1172 n.4 (10th Cir.

2010) (“[T]he NASD (which no longer exists) was not a public

agency, so its arbitration awards are not public records. We

are thus unconvinced that we can take judicial notice of the

contents of a private arbitration award, and we decline to do

so.”); Kisby Lees Mech. LLC v. Pinnacle Insulation, Inc., No.

CIV. 11-5093 JBS/AMD, 2012 WL 3133681, at *4 (D.N.J. July 31,

2012) (“As the Court finds no indication that the arbitration

award is a matter of public record, the Court declines [to]

consider it as such.”); Zellner v. Herrick, No. 08-C-0315, 2009

WL 188045, at *3 (E.D. Wis. Jan 22, 2009).

2. Preclusive Effect

Defendants’ res judicata and preclusion arguments rely

exclusively on the contents of the arbitration decision.

Because the court cannot consider that document at this stage of

the litigation, defendants’ motions for judgment on the

pleadings on those claims are denied. Defendants’ arguments

12 concerning the arbitration decision’s preclusive effect are best

handled in the context of a properly-supported motion for

summary judgment.

B. Defamation (Count II)

pleadings on Carney’s defamation claims against them. The

Individual Town Defendants argue that Carney does not state a

claim for defamation because the complaint does not allege that

any of them made statements about Carney. In response, Carney

contends that he needs discovery to identify the defamatory

statements made by the Individual Town Defendants. Carney

argues that the defamation claim should proceed to discovery

because some unknown person disseminated the material in his

personnel file, which has prevented him from obtaining jobs in

law enforcement.

“To state a claim of defamation under New Hampshire law, a

plaintiff must allege facts that show ‘the defendant failed to

exercise reasonable care in publishing a false and defamatory

statement of fact about the plaintiff to a third party, assuming

no valid privilege applies to the communication.’” Brady v.

Somersworth Sch. Dist., No. 16-CV-069-JD, 2016 WL 3248247, at *4

(D.N.H. June 13, 2016) (quoting Thomas v. Tel. Publ'g Co., 155

N.H. 314, 321 (2007)). Here, Carney concedes that he has not

13 alleged that any of the Individual Town Defendants published any

statements about him. Therefore, Carney does not plead a

plausible defamation claim against the Individual Town

Defendants.

Carney’s assertions that some unidentified person

disseminated the material in his personnel file cannot save his

defamation claims against the Individual Town Defendants.

Carney points to no allegation in the complaint alleging that

anyone affiliated with the Town disclosed the information

contained in his personnel file. In fact, Carney appears to

allege that it was he who informed potential employers about the

contents of his personnel file. Doc. no. 21 at ¶ 182 (“Carney

was obligated to inform potential employers about the

investigation, since upon his request, his personnel file was

tendered and it included the notice of administrative leave, and

the ‘specification of charges'.”). In any event, Carney does

not allege that any of the Individual Town Defendants were

involved in maintaining or had access to his personnel file.

Because Carney has not alleged facts that would allow this court

to reasonably infer that the Individual Town Defendants

published false statements about him, his defamation claims

against those defendants fail.

14 C. Discrimination Claims (Counts X and XII)

Carney brings claims for sexual harassment, aiding and

abetting unlawful employment practices, and retaliation against

all defendants under RSA 354-A, New Hampshire’s Law Against

Discrimination. Carney also brings a claim for unlawful gender

discrimination and retaliation against the Town under Title VII,

42 U.S.C. § 2000e-2. Carney’s discrimination claims are

premised on the allegation that his coworkers circulated rumors

that he had an extramarital affair with a female Town employee.

The Town, the Individual Town Defendants, and the Police

Defendants move for judgment on the pleadings on Carney’s

harassment claims, arguing that Carney has failed to state a

claim for sexual discrimination. The Police Defendants also

move for judgment on the pleadings on Carney’s retaliation

claim, arguing that Carney has failed to allege any protected

activity or retaliatory conduct. Finally, the Individual Town

Defendants and the Police Defendants move for judgment on the

pleadings on all of Carney’s claims because Carney did not name

them in the administrative complaint that he filed with the New

Hampshire Commission for Human Rights, as required under RSA

354-A.

1. Applicable Law

Carney brings his discrimination claims under RSA 354-A and

its federal counterpart Title VII. “[T]he New Hampshire Supreme

15 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). Although 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.

Madeja v. MPB Corp., 149 N.H. 371, 378 (2003) (“As this is an

issue of first impression under RSA chapter 354-A, we rely upon

cases developed under Title VII to aid in our analysis.”);

Scarborough v. Arnold, 117 N.H. 803, 807 (1977) (observing that

“it is helpful to look to the experience of the federal courts

in construing the similar provisions of Title VII of the 1964

Civil Rights Act” when analyzing RSA 354-A). Accordingly, the

court will apply Title VII standards to the RSA 354-A claims,

unless New Hampshire precedent or the statutory language of RSA

354-A warrant otherwise.

2. Exhaustion of Administrative Remedies

A person may bring a civil action under New Hampshire’s Law

Against Discrimination only “at the expiration of 180 days after

the timely filing of a complaint with the commission, or sooner

if the commission assents in writing.” 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

16 discriminatory practice complained of and . . . set forth the

particulars thereof.” 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. 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.”

Wilson v. Port City Air, Inc., No. 13-CV-129-JD, 2013 WL

2631860, at *2 (D.N.H. June 12, 2013).

A plaintiff’s failure to exhaust administrative remedies,

such as the charging requirement here, is an affirmative

defense. McKinnon v. Kwong Wah Rest., 83 F.3d 498, 505–06 (1st

Cir. 1996) (holding that Title VII’s charging requirement is an

affirmative defense); Miles v. Bellfontaine Habilitation Ctr.,

481 F.3d 1106, 1107 (8th Cir. 2007) (per curiam). As such,

Carney’s failure to exhaust his administrative remedies “will

support a motion to dismiss only where [that failure] is (1)

definitively ascertainable from the complaint and other sources

of information that are reviewable at this stage, and (2) the

facts establish the affirmative defense with certitude.”

Citibank Glob. Markets, Inc. v. Rodriguez Santana, 573 F.3d 17,

23 (1st Cir. 2009); see also Kraus v. Presidio Trust Facilities

17 Div./Residential Mgmt. Branch, 572 F.3d 1039, 1046 (9th Cir.

2009) (holding defendant must plead and prove exhaustion of

Title VII remedies).7

a. Nadeau, Savaria, and Bolton

Carney concedes that he failed to name Nadeau, Savaria, and

Bolton in any of his administrative filings and that his RSA

354-A claims against those defendants may be dismissed. Doc.

nos. 46 at 4; 60 at 13. Accordingly, Nadeau, Savaria, and

Bolton’s motions for judgment on the pleadings on Carney’s

claims under RSA 354-A are granted.

7 The Individual Town Defendants contend that the Supreme Court has referred to Title VII’s charging requirement as jurisdictional. Doc. no. 37 at 17 (citing Alexander v. Gardner- Denver Co., 415 U.S. 36 (1974)). The Supreme Court, however, characterized that reference as dicta in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 395 & n.12 (1982), when it concluded that Title VII’s requirement for filing a timely charge was nonjurisdictional. Since Zipes, a number of circuits have concluded that Title VII’s preconditions, including the charging requirement, are nonjurisdictional. See McKinnon, 83 F.3d at 505–06 (citing cases and concluding charging requirement nonjurisdictional); Greenwood v. Ross, 778 F.2d 448, 450 (8th Cir. 1985) (same); see also Francis v. City of N.Y., 235 F.3d 763, 768 (2d Cir. 2000) (observing that “the overwhelming majority of other circuits have held . . . as a general matter, the failure to exhaust administrative remedies is a precondition to bringing a Title VII claim in federal court, rather than a jurisdictional requirement”).

18 b. Remaining Defendants

Carney alleges that on December 27, 2013, he “filed a

charge of discrimination against the defendants at the New

Hampshire Human Rights Commission.” Doc. no. 21 at ¶ 258. In

their motions, the Police Defendants and the Individual Town

Defendants assert that Carney’s RSA 354-A claims against them

are defective because he failed to individually identify them in

that charge. In support, they attach as an exhibit to their

motions the EEOC charge of discrimination form that Carney filed

with the Commission. There is no dispute that the only

respondent named on that form is the Town.8

Carney argues, however, that he should be excused from

naming the Police and Individual Town Defendants (but for

Nadeau, Savaria, and Bolton) in his formal administrative

complaint. In support, Carney attaches the intake questionnaire

form that he filed with the Commission, in which he stated that

he wanted to file a charge against the “Town of Weare; agents,

employees, including Mark Broth.” Doc. 47-2. Carney argues

8 The court will consider the parties’ exhibits containing Carney’s filings with the Commission because Carney’s complaint sufficiently references the filings that he made with the Commission. Innovative Mold Sols., Inc. v. All Am. Ins. Co., Inc., No. 4:15-CV-40010-TSH, 2016 WL 3814774, at *4 (D. Mass. July 12, 2016) (“When reviewing a motion under Rule 12(c), the court may consider . . . documents sufficiently referred to in the complaint.”).

19 that this questionnaire is either a supplement to his formal

charge or, alternatively, entitles him to an exception to the

charging requirement because it provided the defendants notice

of the allegations against them. Carney also argues that he was

unable to comply with the Commission’s regulation concerning

administrative complaints because that regulation does not allow

a complainant to name employees or an employer’s agents, such as

the defendants here, as respondents.

The New Hampshire Supreme Court has not had occasion to

consider whether there are any exceptions to RSA 354-A’s

charging requirement. Federal courts, however, have concluded

that Title VII’s similar charging requirement “is subject to a

host of equitable exceptions.” See, e.g., Jorge v. Rumsfeld,

404 F.3d 556, 565 (1st Cir. 2005); McKinnon v. Kwong Wah Rest.,

83 F.3d 498, 505 (1st Cir. 1996) (citing cases). One such

exception exists when the defendant, although not named, had

notice of the allegations against him and shared a commonality

of interest with the named party. Hashem v. Hunterdon Cty., No.

158585-cv-FLWDEA, 2016 WL 5539590, at *8 (D.N.J. Sept. 29,

2016); see also 4-76 Larson on Employment Discrimination § 76.06

(2015) (noting that the commonality of interest exception has

been adopted by multiple circuits). In addition, the failure to

file an administrative charge under Title VII may potentially be

excused when pursuing those remedies would be futile. See

20 Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 386 (2nd Cir.

2015) (finding error where district court did not consider

possibility that Title VII plaintiff had “equitable defense” to

exhaustion argument based on futility); accord Dembiec v. Town

of Holderness, 167 N.H. 130 (2014) (concluding that “exhaustion

of remedies is not required” when pursuing such remedies “would

have been futile”).9

Here, based on the pleadings and the documents properly

under consideration, the court cannot conclude that RSA 354-A’s

charging requirement bars Carney’s claims. First, the parties

appear to dispute whether the Commission provided Carney’s

intake questionnaire to the Town as a supplement to the formal

charge that Carney filed. This issue is relevant to whether the

Police Defendants and Individual Defendants had notice of the

allegations against them and can only be resolved through

extrinsic evidence.10 Second, as Carney points out, the

9 Carney does not explicitly raise the doctrine of futility as a legal basis for an exception to the charging requirement. Carney does, however, arguably raise the issue by asserting that the Commission’s regulations do not allow administrative complaints that name employees or an employer’s agents as respondents. Therefore, out of an abundance of caution, the court will construe Carney’s factual argument concerning the Commission’s regulations as an assertion of a futility exception to RSA 354-A’s charging requirement.

10The court does not decide whether such a supplement could qualify as an administrative complaint under RSA 354-A:21 and the relevant regulations.

21 Commission’s regulations appear to prohibit a complainant from

naming an employee or company agent, such as the individual

defendants here, as a respondent to an administrative

complaint.11 Therefore, Carney could show that exhausting the

administrative remedies for his claims against those defendants

was futile.

Accordingly, the Police Defendants’ and Individual Town

Defendants’ motions for judgment on the pleadings based on

Carney’s failure to name them in an administrative complaint to

the Commission are denied except as to Savaria, Nadeau, and

Bolton. Defendants’ arguments concerning Carney’s exhaustion of

his administrative remedies may be raised in a properly-

supported motion for summary judgment.

3. Sexual Harassment and Gender Discrimination

Defendants argue that Carney’s claims for sexual harassment

11The Commission’s regulations require that a complainant make an administrative complaint on an EEOC charge of discrimination form or by a letter that adopts that form’s “pre- printed list of choices” for identifying the respondent’s relationship to the complainant. See N.H. Code Admin. R. Hum. 202.02(a)-(b). Those choices are limited to the complainant’s: employer, labor organization, employment agency, apprenticeship committee, or state or local government agency. Id.; see also Wilson, 2013 WL 2631860, at *3 (noting that “the form provided by the Commission does not provide space to name individuals charged with discrimination who are not an employer, labor organization, employment agency, apprenticeship committee, or agency”). 22 under RSA 354-A and gender discrimination under Title VII must

be dismissed because the complaint does not allege conduct that

is actionable under those laws. In support, they contend that

Carney’s complaint fails to allege a hostile work environment

and fails to allege discriminatory conduct that occurred on the

basis of sex. Carney does not respond to the defendants’

argument but instead argues that his claim may proceed as a

retaliation claim.

a. Hostile Work Environment

Carney alleges that the conduct in the complaint is

actionable under RSA 354-A and Title VII because it created a

hostile work environment. Doc. no. 21 at ¶ 256. To state a

harassment claim based on a hostile work environment theory,

Carney must allege that the purported harassment was

“sufficiently severe or pervasive as to materially alter the

conditions of [his] employment and create an abusive work

environment.” Posteraro v. RBS Citizens, N.A., 159 F. Supp. 3d

277, 286 (D.N.H. 2016). Generally, isolated incidents based

exclusively on verbal conduct do not render a workplace hostile

or abusive. Pomales v. Celulares Telefonica, Inc., 447 F.3d 79,

83–84 (1st Cir. 2006). In other words, “simple teasing, offhand

comments, and isolated incidents (unless extremely serious) will

not amount to discriminatory changes in the ‘terms and

23 conditions of employment.’” Faragher v. City of Boca Raton, 524

U.S. 775, 788 (1998).

Here, Carney alleges that another officer overheard his

coworkers discussing in lewd terms an extramarital affair that

he was having with a female employee. Carney also alleges that

the same officer heard the same employees repeating the same

comments at some point “later.” Even if true, which the court

accepts at this stage, the conduct alleged does not constitute

“severe or pervasive” harassment. Rather, Carney has only

alleged isolated, offhand gossip, which cannot by itself amount

to a hostile work environment. Therefore, although likely

embarrassing, the alleged comments do not constitute a hostile

work environment under either RSA 354-A or Title VII.

b. Conduct on the Basis of Sex

Carney’s harassment claims also fail because they do not

allege discrimination that occurred on the basis of sex. Title

VII and RSA 354-A prohibit harassment when it constitutes

discrimination on the basis of sex. Aponte-Rivera v. DHL Sols.

(USA), Inc., 650 F.3d 803, 808 (1st Cir. 2011) (“Title VII . . .

prohibits discrimination on the basis of sex . . . .”); RSA 354-

A:7(V) (defining “[h]arassment on the basis of sex” as “unlawful

sexual discrimination”). As the Supreme Court has explained,

the critical question in determining whether harassment occurs

24 on the basis of sex is “whether members of one sex are exposed

to disadvantageous terms or conditions of employment to which

members of the other sex are not exposed.” Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75, 80 (1998). In Oncale, the

Court emphasized that Title VII is not a “general civility code”

and explained that it had “never held that workplace harassment,

even harassment between men and women, is automatically

discrimination because of sex merely because the words used have

sexual content or connotations.” Id.

Relying on this principle, courts have concluded that

rumors of sexual relationships between a male and female

employee cannot be the sole basis for liability under Title VII

because such rumors affect both sexes and are not made on the

basis of sex. Duncan v. Manager, Dep't of Safety, City & Cty.

of Denver, 397 F.3d 1300, 1312 (10th Cir. 2005); Pasqua v.

Metro. Life Ins. Co., 101 F.3d 514, 517 (7th Cir. 1996); Lewis

v. Bay Indus., Inc., 51 F. Supp. 3d 846, 856 (E.D. Wis. 2014);

Dube v. Hadco Corp., No. 87-554-SD, 1999 WL 1210885, at *6

(D.N.H. Feb. 4, 1999); see also Andersen v. Rochester City Sch.

Dist., No. 09-CV-6259, 2011 WL 1458068, at *6 (W.D.N.Y. Apr. 15,

2011)(assessing rumors of an affair between a teacher and

student), aff'd, 481 F. App'x 628 (2d Cir. 2012). As the

Seventh Circuit explained in Pasqua, “[s]uch rumors spread,

25 irrespective of the truth, for any number of reasons having

nothing to do with gender discrimination.” 101 F.3d at 517.

In his complaint, Carney alleges that a group of his

colleagues spread rumors that he was having an affair with a

“female Town employee.” On their face, those allegations are

gender neutral and do not exhibit any gender bias. Further, the

complaint contains no additional allegations of harassment or

conduct that would allow the court to plausibly infer that the

alleged rumors were circulated because of Carney’s sex.

Therefore, because Carney has not adequately pled sexual

harassment on the basis of sex, his sexual discrimination claims

fail. Dellefave v. Access Temporaries, Inc., No. 99 CIV. 6098

RWS, 2001 WL 25745, at *7 (S.D.N.Y. Jan. 10, 2001)(dismissing

claim for sexual harassment premised on allegations of rumors of

a sexual relationship).

Accordingly, the court grants the motions for judgment on

the pleadings on Carney’s discrimination claims against the

Individual Town Defendants, the Police Defendants, and the Town.

4. Retaliation

Carney brings retaliation claims against the Police

Defendants under RSA 354:19. The Police Defendants move for

judgment on the pleadings on those claims, arguing that the

complaint “lacks allegations of protected conduct.” In

26 response, Carney argues that the conduct alleged in the

complaint is “obviously protected activity.”

To succeed on a claim for retaliation under RSA 354-A:19,

Carney must allege that “(1) [he] engaged in a statutorily-

protected activity; (2) [he] suffered an adverse employment

action; and (3) the protected activity and the adverse

employment action were causally connected.” Madeja, 149 N.H. at

378–79 (citing Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7,

22 (1st Cir. 2002)). Under RSA 354-A:19, a person engages in

statutorily protected activity if “[1] he has opposed any

practices forbidden under this chapter or . . . [2] has filed a

complaint, testified or assisted in any proceeding under this

chapter.” RSA 354-A:19.

To properly allege protected activity under the first

clause, the opposition clause, the complaint “must contain

plausible allegations indicating that the plaintiff opposed a

practice prohibited by [the discrimination statute].” Morales-

Cruz v. Univ. of Puerto Rico, 676 F.3d 220, 226 (1st Cir. 2012).

Because the retaliation statute protects employees who have a

“good faith, reasonable belief that the underlying challenged

actions . . . violated the law,” a complaint need only allege

facts that provide a “reasonable basis for inferring that the

[conduct at issue] reflected gender-based discrimination.” Id.

To the contrary, the second clause, the participation clause,

27 “protects an employee regardless of the merit of his or her

[administrative] charge.” See Ray v. Ropes & Gray LLP, 799 F.3d

99, 110 (1st Cir. 2015) (quoting Wyatt v. City of Boston, 35

F.3d 13, 15 (1st Cir. 1994)).

Here, Carney contends that he engaged in statutorily

protected activity when he insisted that Begin investigate the

rumor incident and when he filed a complaint with the

Commission. Although the filing of an administrative complaint

falls under the participation clause, see RSA 354-A:19, Carney's

involvement in the internal investigation prior to the filing of

his administrative complaint must be assessed under the

opposition clause. See E.E.O.C. v. Rite Way Serv., Inc., 819

F.3d 235, 240 (5th Cir. 2016) (“[E]very Court of Appeals to have

considered this issue squarely has held that participation in an

internal employer investigation not connected with a formal EEOC

proceeding does not qualify as protected activity under the

participation clause.”); Littlejohn v. City of N.Y., 795 F.3d

297, 316 (2d Cir. 2015) (holding that “internal complaints of

discrimination prior to” plaintiff’s administrative proceedings

are not protected under the participation clause).

a. Participation Clause

Carney argues that his retaliation claim is based on

retaliatory acts that the Police Defendants committed because he

28 filed a complaint with the Commission. As the Police Defendants

point out, however, that timeline does not work. The Complaint

contains no allegations of retaliatory acts that occurred after

Carney filed his complaint with the Commission. See Rolfs v.

Home Depot U.S.A., Inc., 971 F. Supp. 2d 197, 214 (D.N.H. 2013)

(“Causation moves forward, not backwards, and no protected

conduct after an adverse employment action can serve as the

predicate for a retaliation claim.”) (quoting Pearson v. Mass.

Bay. Transp. Auth., 723 F.3d 36, 42 (1st Cir. 2013)). Although

Carney cites one allegation of retaliation that occurred after

his resignation in July, see doc. no. 21 at ¶ 186, there is no

indication in the complaint that those alleged retaliatory acts

occurred after he filed his administrative complaint with the

Commission in December. Carney also asserts new allegations of

retaliation in his surreply. On a motion for judgment on the

pleadings, however, the court is limited to considering

allegations contained in the pleadings. Mercury Sys., 820 F.3d

at 51. Therefore, Carney has not pleaded any protected activity

arising from the filing of his complaint with the Commission

from which a retaliation claim could arise.

b. Opposition Clause

As discussed above, to plead protected activity under the

“opposition clause,” Carney must allege facts providing “a

29 reasonable basis for inferring that the [conduct at issue]

reflected gender-based discrimination.” Morales-Cruz, 676 F.3d

at 226. Under this standard, allegations of conduct that are

“unarguably gender-neutral” fail to allege such a basis. Id.

Therefore, rumors concerning a sexual relationship between a

male and a female employee, without more, do not provide a

reasonable basis to conclude that sexual discrimination has

occurred. See Pasqua, 101 F.3d at 517 (affirming summary

judgment on retaliation claim where alleged protected conduct

was rumor of sexual relationship); Brady v. United States

Capital Police, 15-cv-1299, 2016 WL 4186912 (D.D.C. Aug. 8,

2016) (applying Title VII standard and dismissing retaliation

claim where alleged protected conduct was rumor of sexual

relationship).

Carney contends that he engaged in protected conduct

because he opposed the circulation of sexual rumors about the

female town employee. There are no facts alleged in the

complaint, however, providing a reasonable basis to believe that

those rumors constituted sexual discrimination. As discussed

above, the complaint’s allegations concerning the purported

sexual harassment are limited to describing isolated incidents

in which WPD employees circulated rumors about Carney, a male,

and a female Town employee. Doc. no. 21 ¶¶ 90-91. There are no

other allegations in the complaint providing a basis to conclude

30 that those rumors were directed at the Town employee because she

was a woman. For example, the complaint does not identify the

employee or describe the circumstances of her employment, does

not allege that she experienced other gender-related harassment,

and does not allege any other discriminatory incidents at the

WPD. In short, the court cannot plausibly infer that Carney had

a reasonable basis to believe that sexual discrimination had

occurred based solely on the isolated and gender-neutral

incidents alleged in the complaint.

Accordingly, Carney’s retaliation claims under RSA 354-A:19

against the Police Defendants fail.12

II. Broth’s Motion

Broth moves for judgment on the pleadings on all of

Carney’s claims against him.13 In support, Broth argues that he

is immune from liability on several of Carney’s claims based on

The Police Defendants also argue that Carney has failed 12

to allege any retaliatory activity. Because the Police Defendants’ protected activity argument is dispositive, the court need not decide whether Carney has properly alleged retaliatory activity.

Broth moves “to dismiss or, in the alternative, for 13

judgment on the pleadings.” Doc. No. 31. Because Broth has already filed an answer to the operative complaint, see doc. no. 24, his “motion to dismiss is properly treated as a motion for judgment on the pleadings.” Phaneuf v. Ortlieb, No. 12-CV-474- JL, 2013 WL 2147850, at *7 (D.N.H. May 16, 2013) (citing Fed. R. Civ. P. 12(c)). In any event, the standards are the same. Frappier, 750 F.3d at 96.

31 a privilege for statements made in litigation, that he cannot be

held liable under § 1983 because he is not a state actor, and

that Carney’s conspiracy claims against him fail based on the

intracorporate conspiracy doctrine. Broth also argues that

Carney’s sexual harassment allegations against him fail because

Carney did not exhaust his administrative remedies.

Carney objects, arguing that Broth was a state actor for

purposes of § 1983, that the privilege for statements made in

the course of judicial proceedings and the intracorporate

conspiracy doctrine are inapplicable, and that he is entitled to

an exception to the exhaustion requirement.

A. Discrimination Claims (Count X)

abetting unlawful employment practices, and retaliation against

Broth under RSA 354-A. Broth moves for judgment on the

pleadings on those claims, arguing that Carney did not name him

in an administrative complaint to the New Hampshire Commission

for Human Rights, as required under RSA 354-A.14 Carney objects.

14In addition to his assertion that Carney failed to name him in his administrative complaint, Broth asserts, with little to no analysis, that he cannot be held liable under the retaliation and aiding and abetting provisions of New Hampshire’s Law Against Discrimination because he is not an employee of the Town. Broth’s argument is not adequately developed for review. See Coons v. Indus. Knife Co., Inc., 620 F.3d 38, 44 (1st Cir. 2010) (noting that the court is free to disregard arguments that are not adequately developed). 32 As discussed above, the information in the pleadings and

the documents fairly incorporated therein do not demonstrate

that Carney’s claims under RSA 354-A must be dismissed for

failing to comply with that statute’s charging requirement.

Therefore, Broth’s motion for judgment on the pleadings is

denied with respect to Count X.

B. § 1983 Claims (Counts VI-VIII)

Carney brings three claims under 42 U.S.C. § 1983 against

Broth for violations of his civil rights. These claims are

premised on the allegations that Broth, through his role as the

Town’s counsel, violated Carney’s (1) First Amendment rights by

prohibiting him from contacting other WPD employees and (2) due

process rights by participating in the procedurally-flawed

investigation against him.

Broth argues that he is entitled to judgment on the

pleadings on those claims because as a private attorney he is

not a state actor and therefore cannot be held liable under §

1983. Carney contends that he has adequately alleged that Broth

is a state actor.

“When the named defendant in a section 1983 case is a

private party, the plaintiff must show that the defendant's

conduct can be classified as state action.” Jarvis v. Vill. Gun

Shop, Inc., 805 F.3d 1, 8 (1st Cir. 2015), cert. denied, 136 S.

33 Ct. 2020 (2016). “If there is no state action, the plaintiff's

claim fails.” Id. Carney bears the burden of pleading state

action in his complaint, Grapentine v. Pawtucket Credit Union,

755 F.3d 29, 32 (1st Cir. 2014), and failure to do so permits

the court to dismiss his § 1983 claims against Broth. Mead v.

Indep. Ass'n, 684 F.3d 226, 232 (1st Cir. 2012) (affirming

district court’s dismissal of § 1983 claim where plaintiff

failed to allege that private party was a state actor).

“[I]t is only in rare circumstances that private parties

can be viewed as state actors.” Jarvis, 805 F.3d at 8 (internal

quotation marks omitted). In accord with this principle,

“[g]enerally, private attorneys who are representing clients are

not state actors for purposes of § 1983.” Brady v. Somersworth

Sch. Dist.,Sch. Bd., No. 16-CV-069-JD, 2016 WL 3248247, at *3

(D.N.H. June 13, 2016) (collecting cases). That is true even

when a private attorney represents a public body. Dyer v.

Maryland State Bd. of Educ., 187 F.Supp.3d 599, 615 (D. Md. May

20, 2016) (“[I]t is well settled that a private attorney does

not become a state actor simply by representing a public body.”

(collecting cases)).

Carney, however, contends that Broth is a state actor under

exceptions to the general rules concerning private parties. The

First Circuit has identified three ways in which “a private

34 party can be fairly characterized as a state actor.”

Grapentine, 755 F.3d at 32. Under these tests:

A private party may become a state actor if [1] he assumes a traditional public function when performing the challenged conduct; [2] or if the challenged conduct is coerced or significantly encouraged by the state; [3] or if the state has so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant in [the challenged activity].

Santiago v. Puerto Rico, 655 F.3d 61, 68–69 (1st Cir. 2011)

(internal quotation marks omitted). Carney asserts that Broth

is a state actor under both the first prong, the traditional

public function test, and the third prong, the joint participant

test.

1. Traditional Public Function Test

A private party is a state actor when he exercises “powers

traditionally exclusively reserved to the State.” Santiago, 655

F.3d at 69 (internal quotation marks omitted). “Exclusivity is

an important qualifier, and its presence severely limits the

range of eligible activities.” Id. As the First Circuit has

observed, “the narrowness of this range is no accident,” as “it

is meant to counteract a state's efforts to evade responsibility

by delegating core functions to private parties.” Id.

Carney asserts that Broth exercised a traditional public

function because he had “taken over the police department” for

“all internal affairs investigations” in the WPD. Carney,

35 however, provides no analysis in support of his assertion that

conducting or overseeing an internal investigation is a function

traditionally and exclusively reserved to state government. To

the contrary, courts have concluded that private actors

conducting investigations on behalf of the government are not

state actors. See Caleb v. Grier, 598 F. App’x 227, 236 (5th

Cir. 2015) (holding that attorneys who conducted internal

investigation for school district were not engaged in functions

traditionally exclusively reserved to the state); Anderson v.

Perhacs, 11-cv-289 at *7, 2013 WL 1336124 (W.D. Pa. Mar. 29,

2013) (concluding that private attorney who conducted internal

investigation was not a state actor because “a solicitor who

controls the direction and scope of a township's internal

investigation into a personnel matter cannot be said to have

engaged in official policy-making”). Therefore, Carney has not

alleged that Broth exercised a traditional public function by

overseeing the WPD’s employee investigations.

Carney also argues that Broth was exercising a traditional

public function because he “enjoyed unilateral authority to act

as a town manager of sorts” or “was the super police chief” of

the WPD. An attorney does not become a state actor merely by

providing advice to a municipality’s officials or acting in his

professional capacity. Caleb, 598 F. App'x at 234 (holding that

attorneys are not state actors because they only provided

36 recommendations); Beedle v. Wilson, 422 F.3d 1059, 1073 (10th

Cir. 2005) (“The conduct of an attorney acting in his

professional capacity while representing his client does not

constitute action under color of state law for the purposes.”);

Jenn-Ching Luo v. Baldwin Union Free Sch. Dist., No. 12-CV-3073

JS AKT, 2013 WL 1182232, at *4 (E.D.N.Y. Mar. 21, 2013). A

municipality’s attorney may become a state actor, however, if he

unilaterally makes policy decisions that are normally reserved

to the state. See Anderson, 2013 WL 1336124, at *6; Frompovicz

v. Twp. of S. Manheim, No. 3:06CV2120, 2007 WL 2908292, at *8

(M.D. Pa. Oct. 4, 2007).

The complaint does not adequately allege that Broth

exercised the Town’s policymaking authority. Carney alleges

several instances of improper treatment that resulted from the

Town regulating WPD employment matters. But in nearly every

instance where Broth is implicated in those decisions, the

complaint alleges in conclusory fashion that Broth and the Town

(or Town officials) were jointly responsible. See Doc. no. 21

at ¶¶ 78, 87, 113, 130, 175. Those vague allegations are

insufficient to plausibly allege that Broth, and not the Town’s

elected officials, possessed decision-making authority over the

Town and the WPD.

Further, the complaint contains no factual allegations that

the Town or its officials ever delegated policy-making authority

37 to Broth. Indeed, Carney brings claims against several Town

officials, a number of whom he alleges were personally involved

in the disciplinary actions against him. Finally, where the

complaint does allege conduct that is specifically attributed to

Broth, those allegations concern him acting in his professional

capacity, not making official government policy. See Doc. no.

21 at ¶¶ 55-56 (advising investigator on procedure); 82

(drafting letters on behalf of client); 131 (communicating with

opposing counsel in litigation).

Accordingly, Carney fails to allege that Broth is a state

actor based on the public function test.

2. Joint Participant Test

To establish state action under the joint participant test

“a plaintiff must show that the state has so far insinuated

itself into a position of interdependence with the private party

that it was a joint participant in the challenged activity.”

Jarvis, 805 F.3d at 8–9. The joint participant test

“concentrates . . . on the nature of the overall relationship

between the State and the private entity.” Perkins v.

Londonderry Basketball Club, 196 F.3d 13, 21 (1st Cir. 1999).

“The most salient factor in this determination is the extent to

which the private entity is (or is not) independent in the

conduct of its day-to-day affairs.” Santiago, 655 F.3d at 71

38 (internal quotation marks omitted). Other relevant factors

include, “whether the private party has shared profits generated

from its challenged conduct with the state . . . and whether the

private party has used public facilities.” Jarvis, 801 F.3d at

9.

Here, the complaint does not contain sufficient factual

allegations to support an inference that Broth and the Town were

in a relationship of interdependence.15 Rather, the complaint’s

only factual allegations concerning Broth and the Town’s

relationship are limited to assertions that Broth acted as

counsel for the Town in litigation and employment matters.

There are no allegations supporting an inference that the Town

insinuated itself into Broth’s day-to-day affairs. Nor does the

complaint allege any other facts suggesting that the Town and

Broth were interdependent.

Moreover, Carney’s allegation that Broth conspired with

state actors does not establish the necessary joint

participation to support state action. A plaintiff may

demonstrate state action by showing that a private party has

15As discussed above, the complaint does contain conclusory allegations of concerted action between Broth and Weare. Those allegations, however, are insufficient to establish state action under the joint action test. Lienau v. Garcia, No. 12-CV-6572 ER, 2013 WL 6697834, at *7 (S.D.N.Y. Dec. 19, 2013) (rejecting joint action theory where complaint merely contained “conclusory allegations of concerted action”).

39 conspired with state actors to deprive him of a civil right.

See Dennis v. Sparks, 449 U.S. 24, 27 (1980). To plead such a

conspiracy under § 1983, however, a plaintiff must allege “the

relationship or nature of cooperation between the state and a

private individual . . . in some detail.” McGillicuddy v.

Clements, 746 F.2d 76, 77 (1st Cir. 1984) (internal quotation

marks omitted). That includes alleging “the essential

allegation of an agreement among” the alleged conspirators.

Tavares v. Gelb, 15-cv-130000-FDS, 2016 WL 6518428, at *9 (D.

Mass. Nov. 2, 2016). The complaint’s conspiracy allegations

lack sufficient detail to allege Broth’s participation in a

civil rights conspiracy. See Doc. no. 21 at ¶¶ 100-03

(describing a conspiracy among the Police Defendants but not

Broth), 108 (referencing a conspiracy between Broth and “other

[unnamed] town agents”). Therefore, Carney has failed to allege

that the Town was a joint participant in Broth’s actions.

Accordingly, as Carney has failed to allege that Broth is a

state actor, his § 1983 claims (Counts VI-VIII) against Broth

are dismissed.

C. Litigation Privilege

Broth argues that a litigation privilege insulates him from

liability on Carney’s claims for conspiracy, defamation,

interference with contractual relations, emotional distress, and

40 violations of civil rights because those claims “arise out of

his actions in representing the Town of Weare, and certain of

its boards and departments.” Doc. No. 31-1. In response,

Carney contends that the privilege does not apply to the broad

range of allegations that the complaint asserts against Broth.

Because the court has concluded that Broth is not a state actor

and therefore not liable under Carney’s § 1983 claims, it need

only decide whether a privilege for litigation activities is

applicable to Carney’s state law claims.

Under New Hampshire law, “certain communications are

absolutely privileged and therefore immune from civil suit.”

Provencher v. Buzzell-Plourde Associates, 142 N.H. 848, 853

(1998) (quoting McGranahan v. Dahar, 119 N.H. 758, 762-63

(1979)). “Statements made in the course of judicial proceedings

constitute one class of communications that is privileged from

liability in civil actions if the statements are pertinent or

relevant to the proceedings.” Id. The New Hampshire Supreme

Court has extended the privilege to communications between

attorneys and witnesses before litigation as long as “litigation

was contemplated in good faith and under serious consideration

by the witness, counsel, or possible party to the proceeding at

the time of the communication.” Provencher, 142 N.H. at 855.

The rule “reflects a determination that the potential harm to an

individual is far outweighed by the need to encourage

41 participants in litigation, parties, attorneys, and witnesses,

to speak freely in the course of judicial proceedings.” Dahar,

119 N.H. at 763.

In his complaint, Carney alleges that Broth committed

numerous wrongful acts in his role as the Town’s attorney. The

complaint alleges that this misconduct occurred while Broth

represented the Town in a series of employee investigations and

the Chatel litigation. There are few allegations in the

complaint, however, that explain when Broth was acting in his

capacity as litigation counsel and when Broth was acting in his

capacity as a labor attorney conducting investigations. This

poses a problem for Broth’s assertion of privilege because the

complaint contains no allegations that would allow the court to

conclude that those investigations were conducted when

litigation was contemplated in good faith. Absent any such

allegations, the court cannot conclude that the entirety of

Broth’s alleged conduct qualifies for protection under the

privilege. Accordingly, Broth has failed to demonstrate that

the privilege for statements made in the course of judicial

proceedings bars Carney’s state law claims at this stage of the

litigation.

Whether the privilege bars any of Carney’s claims is best

addressed in the context of a properly-supported motion for

42 D. Civil Conspiracy (Count I)

Carney brings a civil conspiracy claim, alleging that Broth

and WPD employees conspired to illegally “force him out of his

job.” Broth contends that Carney has failed to state a claim

for civil conspiracy based on the intracorporate conspiracy

doctrine.16 In response, Carney argues that the doctrine is not

recognized under New Hampshire law.

A viable claim for civil conspiracy under New Hampshire law

requires at least “two or more persons” conspiring to achieve an

unlawful objective. In re Appeal of Armaganian, 147 N.H. 158,

163 (2001). Under the intracorporate conspiracy doctrine, the

agents and employees of a corporate entity acting within the

scope of their employment or authority are legally incapable of

conspiring together. See, e.g., Johnson v. Dep't of Agric., 833

F.3d 948, 958-59 (8th Cir. 2016); Christians of California, Inc.

v. Clive Christian N.Y., LLP, No. 13-CV-275 KBF, 2015 WL 468833,

at *9 (S.D.N.Y. Feb. 3, 2015). This rule ordinarily bars

conspiracy claims premised on a conspiracy between an attorney

and a corporate client and its employees. See, e.g., Amadasu v.

16Broth also contends that the intracorporate conspiracy doctrine bars Carney’s § 1983 conspiracy claim against him. The court need not consider that issue, however, because, as discussed above, Carney’s § 1983 claims against Broth fail because he has not sufficiently alleged that Broth is a state actor. 43 The Christ Hosp., 514 F.3d 504, 507 (6th Cir. 2008); Cream v.

McIver, No. 2:15-CV-113-FTM-29CM, 2015 WL 2168946, at *4 (M.D.

Fla. May 8, 2015); Horen v. Bd. of Educ. of Toledo City Sch.

Dist., 594 F. Supp. 2d 833, 842 (N.D. Ohio 2009).

The doctrine “developed out of basic agency principles that

attribute the actions of a corporation's agents to the

corporation itself, which negates ‘the multiplicity of actors

necessary for the formation of a conspiracy.’” White v. City of

Athens, 169 F. Supp. 3d 1254, 1269 (N.D. Ala. 2016) (quoting

McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th

Cir. 2000)); see also Harp v. King, 835 A.2d 953, 971 (Conn.

2003) (internal quotations omitted).

The New Hampshire Supreme Court has not decided whether the

intracorporate conspiracy doctrine applies under New Hampshire

law. Because this issue is a matter of substantive state law,

the court must “predict how that court likely would decide the

issue.” Philibotte v. Nisource Corp. Servs. Co., 793 F.3d 159,

165 (1st Cir. 2015). In doing so, the court is aided by any

“relevant statutory language, analogous decisions of the state

supreme court, decisions of the lower state courts, and other

reliable sources of authority.” Barton v. Clancy, 632 F.3d 9, 17

(1st Cir. 2011).

The majority rule and the modern trend among states

recognizes the intracorporate conspiracy doctrine. Most states

44 have concluded that the doctrine applies in their jurisdiction.

See Robin Miller, Annotation, Construction and Application of

“Intracorporate Conspiracy Doctrine” as Applied to Corporation

and Its Employees–State Cases, 2 A.L.R. 6th 387 (2005)

(collecting cases from over thirty states that recognize

“a corporation and its employees, acting within the scope of

their employment, cannot create a conspiracy”). Further, the

few states that have expressly rejected the doctrine have not

addressed the issue in over two decades. Cox v. Cache Cty., No.

1:08-CV-124 CW, 2013 WL 4854450, at *5 (D. Utah Sept. 11, 2013),

aff'd in part, No. 14-4123, 2016 WL 6471705 (10th Cir. Nov. 2,

2016) (concluding that Utah Supreme Court would follow the

majority of other jurisdictions in recognizing intracorporate

conspiracy doctrine).

The court concludes that, if confronted with the issue, the

New Hampshire Supreme Court would adopt the intracorporate

conspiracy doctrine. New Hampshire appears to adhere to the

traditional principles of agency law that serve as the

doctrine’s foundation. See Mannone v. Whaland, 118 N.H. 86, 88

(1978) (observing that regulation imputing acts of agent to

corporate principal “to the extent of common law” was “a

recognition for the obvious fact that corporations . . . must

act through agents”); Sutton Mut. Ins. Co. v. Notre Dame Arena,

Inc., 108 N.H. 437, 441 (1968) (“Since a corporation can act

45 only through its officers, agents and employees, it is

necessarily chargeable with the knowledge of its officers and

agents acting within the scope of their authority.”). Given

these principles, the court perceives of no reason—and Carney

has suggested none—why the New Hampshire Supreme Court would

embrace a conclusion concerning the doctrine’s applicability

that differs from the majority of other states. Therefore, the

court applies the doctrine to Carney’s civil conspiracy claim.

Here, Carney alleges a civil conspiracy among Broth and WPD

employees, all of whom are employees or agents of the Town, a

corporation under New Hampshire law. R.S.A. 31:1 (“Every town

is a body corporate and politic, and by its corporate name may

sue and be sued, prosecute and defend, in any court or

elsewhere.”). Carney has not alleged that any of the purported

coconspirators were acting outside the scope of their employment

or authority. Therefore, the intracorporate conspiracy doctrine

bars Carney’s civil conspiracy claim against Broth.

Accordingly, Broth’s motion for judgment on the pleadings

on Carney’s civil conspiracy claim is granted.

III. Conclusion

For the foregoing reasons, Broth’s motion for judgment on

the pleadings (doc. no. 31) is granted as to Carney’s civil

46 conspiracy claim (Count I) and Carney’s § 1983 claims (Counts

VI-VII) but is otherwise denied.

The Town’s motion for judgment on the pleadings (doc. no.

36) is granted on Carney’s claims for sexual harassment under

RSA 354-A and Title VII (Counts X and XII) and is otherwise

denied.

The Police Defendants’ motion for judgment on the pleadings

(doc. no. 35) is granted on Carney’s sexual discrimination and

retaliation claims under RSA 354-A. The Police Defendants’

motion for judgment on the aiding and abetting claims under RSA

354-A is denied as to Cox, Hebert, McSweeney, and Montplaisir,

but granted as to Nadeau and Savaria, both of whom Carney

concedes he did not properly name in a complaint to the

Commission.

The Individual Town Defendants’ motion for judgment on the

pleadings (doc. no. 37) is granted on Carney’s sexual

discrimination claims under RSA 354-A (Count X). The Individual

Town Defendants’ motion for judgment on the retaliation and

aiding and abetting claims under RSA 354-A is denied as to Butt,

Clow, Lacasse, Lawton, and Leary but granted as to Bolton, whom

Carney concedes he did not properly name in a complaint to the

47 The following claims remain in the case:

 civil conspiracy against the Police Defendants (Count I)

 defamation against Broth, the Town, and the Police Defendants (Count II)

 interference with a contractual relationship against Broth, the Police Defendants, and the Individual Town Defendants (Count III)

 intentional infliction of emotional distress against all defendants (Count IV)

 negligent infliction of emotional distress against Broth, the Police Defendants, and the Individual Town Defendants (Count V)

 42 U.S.C. § 1983 claim for violation of Carney’s First Amendment Rights against the Town and the Individual Town Defendants (Count VI)

 § 1983 claim for violation of due process against the Town and the Individual Town Defendants (Count VII)

 § 1983 claim for conspiracy to violate civil rights against the Town, the Police Defendants, and the Individual Town Defendants (Count VIII)

 RSA 354-A claims for (1) sexual discrimination against Broth, (2) retaliation against the Town, Broth, and the Individual Town Defendants except for Bolton and (3) aiding and abetting claims against the Town, Broth, the Individual Town Defendants except Bolton, and the Police Defendants except Nadeau and Savaria (Count X)

 violation of New Hampshire’s Whistle Blower Protection Act, RSA 275-E against the Town (Count XI)

 retaliation claim against the Town under Title VII, 42 U.S.C. § 2000e-2 (Count XII)

48  violation of New Hampshire’s Employee Freedom of Expression Law, RSA 98-E against the Town (Count XIII).

SO ORDERED.

________________________________ Landya McCafferty United States District Judge

February 21, 2017

cc: Thomas M. Closson, Esq. Brian J.S. Cullen, Esq. Russell F. Hilliard, Esq. Daniel P. Schwarz, Esq. Tony F. Soltani, Esq. Laura Ann Spector, Esq. Wendy L. Spillane, Esq.