Chatel v. Carney, et a l . CV-10-576-PB 4/26/12
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Louis R. Chatel, Jr.
v. Case No. 10-cv-576-PB Opinion No. 2012 DNH 078 Lieutenant James Carney et a l .
MEMORANDUM AND ORDER
Louis R. Chatel, Jr. was fired in July 2010 after working
as an officer for the Weare Police Department for approximately
seven years. He brings suit against two Weare police officers,
five members of the Weare Board of Selectmen, and the Town of
Weare. Chatel claims that defendants are liable under 42 U.S.C.
§ 1983 for violating his First Amendment rights. He also argues
that defendants are liable for various state-law claims,
including wrongful discharge, constructive discharge, and
violation of New Hampshire's Whistleblower Protection Act, RSA §
275-E.1 Defendants move for summary judgment. In this
Memorandum and Order, I grant defendants' motion with respect to
Chatel's federal claim and decline to exercise supplemental
jurisdiction over his state law claims.
1 RSA is an abbreviation for New Hampshire Revised Statutes Annotated. I. BACKGROUND
Chatel became a part-time police officer in October 1995
for the Town of New Ipswich, New Hampshire. In October 2000, he
was certified as a full time officer. In September 2003, Chatel
transferred to the Weare Police Department ("WPD"). In May
2008, he was promoted to sergeant and police prosecutor. Chatel
is not an attorney.
A. The Brown Report
On October 30, 2009, after an undercover drug investigation
overseen by Lieutenant James Carney, two suspects, Dio Brown and
London Cohen, were arrested. Chatel alleges that Detective
Frank Hebert, an investigating officer on the case, told Chatel
to institute a prosecution against both suspects for possession
of controlled drugs, possession with intent to sell,
transportation of controlled drugs, and forgery.
On November 2, 2009, Brown and Cohen were set to be
arraigned. Before proceeding with the arraignment, Chatel met
with Hebert and the Weare police chief, Gregory Begin. Chatel
informed Hebert and Begin that he did not believe there was a
sufficient basis to bring charges against one of the suspects.
Brown. Chatel then interviewed both suspects and, based on
those interviews, declined to file charges against Brown. 2 After Chatel left the courthouse, he received two phone
calls from Carney, who was angry that Chatel had not filed
charges against Brown. Chatel immediately told Begin about the
phone calls because he felt threatened by Carney's aggressive
language and tone.
On November 4, 2009, two days after Chatel declined to file
charges against Brown, Carney ordered Chatel to submit a
narrative report regarding Chatel's interviews with both
suspects. The narrative reports were part of Chatel's
responsibilities as police prosecutor. Chatel drafted and
submitted his report (the "Brown Report") on that same day.
A few days later, Carney ordered Chatel to alter the Brown
Report. Specifically, Carney ordered Chatel to remove the
reference to Chatel having informed Brown that based on what he
had been told. Brown would be charged with possession of
controlled drugs, possession with intent to sell, transportation
of controlled drugs, and forgery. Chatel initially refused to
remove the statement in the report. Eventually, after Carney
threatened to discipline Chatel if he did not remove the
statement, Chatel made the requested alteration.
Shortly thereafter, Chatel filed a grievance against
Carney, alleging that Carney was creating a "hostile work
environment." The Town retained an attorney, Daniel Schwarz, to 3 investigate Chatel's allegations. Schwarz issued a report
recommending the denial of Chatel's grievance. Begin adopted
the report and closed the investigation.2
On December 17, 2009, the county attorney asked Chatel to
produce the case file for the Cohen and Brown arrests. This was
a typical request from the county attorney's office. In
preparing the case file, Chatel noticed that the Brown Report
had been altered without his knowledge. Specifically, the last
line of the report had been deleted, which had read, "[g]iven
the above and with the details I was informed of prior to coming
to court, I was directed to and did file a notice with the court
which stated in part that Mr. Brown was being released without
any of the above charges being filed against him." The report
showed that it had been modified on November 18, 2009, by "JJC,"
which were Carney's initials.3 Chatel, reluctant to send the
2 Although unclear from the pleadings and the parties' briefs, it appears that the standard procedure for WPD grievances is that an aggrieved party submits a grievance to Begin who then determines, based on his own investigation, whether or not to sustain the grievance. In this instance, according to Begin, the Town determined that someone independent from the WPD should investigate the matter. Therefore, although Chatel's other grievances were apparently investigated by Begin himself, this particular grievance was investigated by Schwarz, an independent attorney.
3 Although Chatel claims that the report was modified by Carney, defendants argue that Begin, not Carney, altered the report. The factual dispute is not material to my decision. 4 altered report to the county attorney, instead informed Begin of
the issue by memorandum, and forwarded two copies of the report
to Begin. The first was Chatel's original report, which
contained both the sentence that he had deleted after Carney's
threatened disciplinary action and the final sentence of his
report that Carney or Begin had deleted without Chatel's
knowledge. The second was the modified report. Chatel drew a
large "X" on the second report.
On January 12, 2010, Carney wrote a memorandum to Chatel
requesting an explanation as to why he had submitted a marked up
report to Begin. Chatel responded by memorandum the following
day, stating that he "oppose[d] the report that [he] was ordered
to change, as it does not accurately portray the facts." Chatel
Mem., Jan. 13, 2010 (Doc. No. 27-6). Chatel further wrote that,
"[i]n the interest of properly and accurately documenting my
involvement with the defendants at court, I am reluctant to
supply any report that does not accurately, clearly and
truthfully reflect all the facts." Id.
On January 21, 2010, Carney issued a "Letter of Warning" to
Chatel for submitting the marked up report to Begin. The letter
cited Chatel for "Conduct Unbecoming an Officer." Chatel then
filed a grievance with Begin regarding the letter of warning.
Begin denied the grievance and Chatel appealed to the Board of 5 Selectmen. The Board of Selectmen found in favor of Chatel on
the appeal and rescinded the letter of warning.
In addition, Chatel contacted the county attorney's office
concerning Carney's directive that Chatel modify the Brown
Report. The county attorney referred the case to the New
Hampshire Attorney General's ("AG") office. The AG's office
investigated Chatel's allegations and determined that no action
was necessary.
B. Other Disciplinary Action Against Chatel
1. Car Accident
On the morning of January 11, 2010, Chatel responded to a
multi-car accident in front of a high school. On the way to the
accident scene, Chatel heard a report of a second accident
nearby. Chatel radioed Officer Daniel Aiken, who was on his way
to a traffic detail, and instructed him to proceed to the second
accident scene. Aiken reported his location to Carney. Carney
told Aiken to report to his scheduled traffic detail as soon as
Chatel arrived at the accident scene.
Once Chatel arrived, he determined that he needed to retain
Aiken at one of the accident scenes while he proceeded to the
other. He had another officer radio Carney to request that
Aiken remain at the scene. Carney denied the request and
ordered Aiken to report to his scheduled traffic detail. 6 Later that day, Carney wrote Chatel a memorandum asking why
he had contradicted Carney's order to have Aiken report to his
scheduled detail as soon as Chatel arrived at the accident
scene. Chatel responded by memorandum stating that he did not
contradict an order but rather made a judgment that he needed
another officer on the accident scene.
On January 21, 2010, the same day that Carney issued a
letter of warning to Chatel for marking up the Brown Report,
Carney sent him a letter of warning for the incident regarding
Aiken and the car accident. The letter of warning cited Chatel
for insubordination.
As with the other letter of warning, Chatel filed a
grievance with Begin, Begin denied the grievance, and Chatel
appealed to the Board of Selectmen. Unlike the other letter of
warning, however, the Board of Selectmen sustained Carney's
findings and denied Chatel's appeal.
2. Child Pornography Case
In February 2010, Chatel was investigating a child
pornography case. As part of the investigation, Chatel, using
his department-issued laptop, reviewed the allegedly
pornographic images at his home. A few days later, Carney
expressed concern about Chatel taking home the pornographic
images and ordered Chatel not to remove them from the department 7 again.
In April or May of 2010, Begin or Carney contacted the AG's
office to prompt an investigation of Chatel for manufacturing
and/or possessing child pornography. A criminal investigator
from the AG's office contacted Chatel concerning the
investigation, and Chatel was interviewed by and cooperated with
the office throughout the investigation. On September 28, 2010,
the AG's office stated that there was no evidence or basis to
support allegations that Chatel illegally possessed,
distributed, or manufactured child pornography.
3. Meeting with Jennifer Hodgdon
On February 3, 2010, Chatel met and had a cup of coffee
with an acquaintance, Jennifer Hodgdon. A few weeks later,
Carney emailed Chatel to ask about the purpose of the meeting
and accused Chatel of meeting with Hodgdon while on duty.
Chatel claimed to be off duty during the meeting. On March 1,
2010, Carney issued a "letter of counseling" to Chatel regarding
the meeting, warning Chatel to follow appropriate protocols when
interacting with civilians while on duty.
4. Hiring of New Police Prosecutor and Chatel's Termination
On April 22, 2010, Begin informed Chatel that the Board of
Selectmen, acting on Begin's recommendation, had hired Catherine
8 Baumann to serve as the WPD's prosecutor. Begin informed the
Board that he thought having an attorney as the police
prosecutor would be a benefit to the Town because of his or her
legal knowledge. Chatel was reassigned to his duties as a
patrolman.
Around this time, Chatel began suffering from severe
anxiety. On May 6, 2010, Chatel took paid leave under the
Family Medical Leave Act ("FMLA"). On July 29, 2010, counsel
for the Town wrote a letter to Chatel's attorney, informing him
that Chatel's FMLA leave expired on that date, and that if he
was medically unable to return to work, his employment would be
immediately terminated. Chatel was unable to return to work and
was terminated.
II. STANDARD OF REVIEW
Summary judgment is appropriate when the record reveals "no
genuine dispute as to any material fact and that the movant is
entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). The evidence submitted in support of the motion must be
considered in the light most favorable to the nonmoving party,
drawing all reasonable inferences in its favor. See Navarro v.
Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001).
9 A party seeking summary judgment must first identify the
absence of any genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to
the nonmoving party to "produce evidence on which a reasonable
finder of fact, under the appropriate proof burden, could base a
verdict for it; if that party cannot produce such evidence, the
motion must be granted." Ayala-Gerena v. Bristol Myers-Squibb
C o ., 95 F.3d 86, 94 (1st Cir. 1996); see Celotex, 477 U.S. at
323 .
III. ANALYSIS
Chatel asserts a First Amendment claim and three state law
claims arising from his employment termination. Defendants move
for summary judgment on all claims. I begin by examining the
submitted evidence pertaining to Chatel's First Amendment claim
and conclude that defendants are entitled to summary judgment on
that claim. I then briefly explain why I decline to exercise
supplemental jurisdiction over Chatel's state law claims.
A. First Amendment Claim
Chatel claims that defendants are liable under § 1983 for
violating his First Amendment rights. Specifically, Chatel
alleges that defendants retaliated against him and terminated
him because he initially refused to alter the Brown Report and 10 submitted the modified report with an "X" marked through it.
Defendants argue that Chatel's alleged protected speech was made
while he was acting within the scope of his official duties as a
public employee, and therefore is not entitled to First
Amendment protection.
It is well established that "[g]overnment employers . . .
need a significant degree of control over their employees' words
and actions; without it, there would be little chance for the
efficient provision of public services." Garcetti v. Ceballos,
547 U.S. 410, 418 (2006). As such, "[r ]estricting speech that
owes its existence to a public employee's professional
responsibilities does not infringe any liberties the employee
might have enjoyed as a private citizen." Id. at 421-22. Thus,
in evaluating the constitutional protections accorded to public
employee speech, I must first examine "whether the employee
spoke as a citizen on a matter of public concern." Id. at 418.
If so, I must then determine "whether the relevant government
entity had an adequate justification for treating the employee
differently from any other member of the general public."
Curran v. Cousins, 509 F.3d 36, 45 (1st Cir. 2007) (quoting
Garcetti, 547 U.S. at 418) .
The first element of the Garcetti standard is whether the
plaintiff was speaking (1) as a citizen and (2) on a matter of 11 public concern.4 "If the answer to either of these sub-parts is
no, then [the plaintiff] has no First Amendment claim based on
the Defendants' action in relation to his speech." Foley v.
Town of Randolph, 598 F.3d 1, 5 (1st Cir. 2010). Each instance
of speech must be analyzed separately to determine whether it
was protected. See Hennessy v. City of Melrose, 194 F.3d 237,
246-47 (1st Cir. 1999).
"[W]hen public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for
First Amendment purposes, and the Constitution does not insulate
their communications from employer discipline." Garcetti, 547
U.S. at 421. In determining whether a plaintiff made statements
pursuant to official duties, the court considers two questions
(1) "what are the employee's official responsibilities and
(2) was the speech at issue made pursuant to those
responsibilities?" Mercado-Berrios v. Cancel-Alegria, 611 F.3d
18, 26 (1st Cir. 2010). The inquiry "focus[es] on the duties an
employee actually is expected to perform, and not merely those
formally listed in the employee's job description." Decotiis v.
Whittemore, 635 F.3d 22, 31 (1st Cir. 2011) (internal quotation
marks and citation omitted).
4 "The inquiry into the protected status of speech is one of law, not fact." Connick v. Myers, 461 U.S. 138, 148 n.7 (1983); see also Lewis v. City of Boston, 321 F.3d 207, 219 (1st Cir. 2003). 12 "Ultimately, the proper inquiry is a practical one."
Foley, 598 F.3d at 6 (internal quotation marks and citation
omitted). Certain categories of speech, however, are considered
speech made pursuant to employment duties. These categories
include "speech that owes its existence to a public employee's
professional responsibilities; speech that the employer has
commissioned or created; speech that the employee was paid to
make; speech that the employee's duties . . . required him to
make; speech that amounts to the employee's work product; and
speech that is an official communication." Mercado-Berrios, 611
F.3d at 27 n.9 (internal quotation marks and citations omitted);
see also Garcetti, 547 U.S. at 421-23. In addition, the fact
that an employee was on duty and in his workplace at the time of
the speech, though not determinative, is "relevant and important
to the inquiry." Foley, 598 F.3d at 7 & n.9; see also Decotiis,
635 F.3d at 32 (identifying multiple factors that could affect
the analysis).
The speech at issue in this case is (1) Chatel's (initial)
refusal to alter the Brown Report at Carney's directive and (2)
his marking the modified report with an "X" and forwarding it to
Begin.5 Chatel refused to alter the Brown Report while he was on
5 Defendants do not dispute that both of Chatel's actions constitute speech for purposes of this motion. See Welch v. 13 duty as the police prosecutor and working in the police station.
In addition, as Chatel concedes, his duties as prosecutor
included drafting, editing, and finalizing narrative reports of
interviews with suspects. See Chatel Dep. 117:6 - 119:23, Feb.
2, 2012 (Doc. No. 29-1). Although Chatel attempts to draw a
distinction between his general duties of editing reports and
his refusal to alter the Brown Report, the record evidence
demonstrates that Chatel's refusal was directly related to his
duties as police prosecutor. See id. at 169:17 ("I considered
it unethical for me as a prosecutor [to change the report].");
see also Chatel Mem. (Doc. No. 27-6) ("In the interest of
properly and accurately documenting my involvement with the
defendants at court, I am reluctant to supply any report that
does not accurately, clearly and truthfully reflect all the
facts."). Therefore, Chatel's refusal to alter the Brown Report
cannot be considered "citizen speech."
Marking the modified Brown Report with an "X" and sending
the marked report to Begin were also actions constituting speech
made pursuant to Chatel's official duties. Chatel marked and
sent the report while he was on duty at the police station. The
Ciampa, 542 F.3d 927, 938 (1st Cir. 2008) ("Refusing to speak in the face of an illegitimate request to speak is protected conduct."); see also Riley v. Nat'l Fed, of the Blind of N.C., Inc., 487 U.S. 781, 796-97 (1988).
14 record evidence shows that the county attorney contacted Chatel
as police prosecutor and that his responsibilities included
maintaining case files and forwarding them to the county
attorney's office. See Chatel Dep. 171:19 - 172:1 (Doc. No. 29-
1); see also Compl. 5 34 (Doc. No. 1). As with Chatel's refusal
to alter the Brown Report, the record evidence shows that he
forwarded a marked up version of the Brown Report to Begin in
his role as a prosecutor, not a citizen. See Chatel Interview
of Feb. 9, 2010 at 176 (Doc. No. 24-5) ("[A]s a prosecutor I
felt as though it was my duty to say that this is not
accurate.").
Chatel does not dispute that his duties as prosecutor
include preparing narrative reports and forwarding materials to
the county attorney's office. He argues, however, that his
refusal to submit an inaccurate report and his attempt to alert
the county attorney's office to the inaccuracy had a "citizen
analogue" and is thus protected. Chatel cites Jackler v. Byrne,
658 F.3d 225 (2d Cir. 2011) in support of his argument.
In Jackler, a civilian filed a complaint against a police
officer for the use of excessive force. Jackler, a probationary
police officer, witnessed the incident at issue and, pursuant to
department directives, drafted a report, which corroborated the
civilian complaint. Other officers attempted to coerce Jackler 15 into altering his report to cover up for the assaulting officer.
Jackler refused to change his report and, as a consequence,
suffered various retaliatory actions culminating in his
termination. Id. at 231-32.
In holding that Jackler acted as a citizen in refusing to
alter his report, the Second Circuit noted that "a citizen who
has truthfully reported a crime has the indisputable right to
reject pressure from the police to have him rescind his
accusation and falsely exculpate the accused." Id. at 241.
Thus, the court analogized Jackler to a witness to a crime, and
held that his refusal to alter a witness statement had a
civilian analogue. Id. at 240 ("Nor does anyone have authority
to require a witness to retract his true statements and make
statements that are false . . . .") .
Here, Chatel was not acting in a way that is analogous to a
witness of a crime or any other civilian.6 Chatel's speech
concerned the preparation of case reports and forwarding the
reports to the county attorney's office. Chatel does not
dispute that those communications are part of the official
6 Even if Jackler were analogous to this case, it is not binding precedent on this court and I would decline to follow it because it is unpersuasive. In addition, other courts have cast doubt on the Second Circuit's analysis in Jackler. See Bowie v. Maddox, 653 F.3d 45, 47-48 (B.C. Cir. 2011).
16 duties of a police prosecutor and are not actions that could be
taken by a civilian. Further, as discussed above, Chatel
repeatedly spoke about his actions in reference to his duties as
police prosecutor. See Chatel Interview of Feb. 9, 2010 at 176
(Doc. No. 24-5) ("I have an obligation I believe as a prosecutor
to at least let someone know how I feel about this . . . .") .
Because Chatel spoke pursuant to official duties and not as a
citizen, his speech is not entitled to First Amendment
protection.7 See Foley, 598 F.3d at 6 ("[W]hen [plaintiff] wrote
the internal memorandum at issue in this case, he spoke as a
prosecutor fulfilling a responsibility to advise his supervisor
about how best to proceed with a pending case.") (internal
quotation marks and citation omitted).
Drawing all reasonable inferences in Chatel's favor, the
record evidence shows that Chatel was acting pursuant to his
7 Although Chatel submitted an affidavit with his objection stating that he spoke as a citizen and not as a police prosecutor, an affidavit that conflicts with a party's sworn testimony is not sufficient to create a genuine issue of material fact. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999) ("[A] party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party's earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity."); see also Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994) . 17 official duties, and not as a citizen, during both instances of
speech. Because I find that Chatel was not speaking as a
citizen, I do not need to consider whether he was speaking on a
matter of public concern or defendants' justification for their
treatment of Chatel.
B. State Law Claims
Having disposed of the federal law claim in this action, I
decline to exercise supplemental jurisdiction over the remaining
state law claims. See 28 U.S.C. § 1367(c)(3); see also Camelio
v. Tim. Fed'n, 137 F.3d 666, 672 (1st Cir. 1998) (district court
may decline jurisdiction after dismissing all claims over which
it has original jurisdiction). Accordingly, I dismiss Chatel's
state law claims without prejudice to his right to pursue them
in state court.
IV. CONCLUSION
For the aforementioned reasons, I grant defendants' motion
for summary judgment (Doc. No. 24) on the First Amendment claim.
I decline to exercise supplemental jurisdiction over the state
law claims. These claims are dismissed without prejudice. The
clerk shall enter judgment accordingly and close the case.
18 SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
April 2 6, 2 012
cc: George T. Campbell, III, Esq. Mark T. Broth, Esq.