Defina v . Hooksett, et a l . CV-10-372-PB 4/10/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Jason Defina
v. Case N o . 10-cv-372-PB Opinion N o . 2012 DNH 070 Town of Hooksett, et a l .
MEMORANDUM AND ORDER
Jason Defina sued the Town of Hooksett, the Hooksett Police
Commission, and Police Chief Stephen Agrafiotis alleging
constitutional and state law claims arising from his termination
from the Hooksett Police Department. Agrafiotis moves to
dismiss two of Defina’s claims against him: violation of his due
process rights under 42 U.S.C. § 1983 and wrongful termination.
Defina objects. In this Memorandum and Order, I grant
Agrafiotis’s motion to dismiss.
I. BACKGROUND1
Defina was hired as a patrolman for the Hooksett Police
Department (“HPD”) on July 6, 1999. He worked at the HPD for
1 The background is taken from the Amended Complaint (Doc. N o . 21) construed under the Rule 12(b)(6) standard. the next five and a half years without incident as a pistol,
rifle, and baton instructor, as well as a field training officer
for new recruits.
On January 1 0 , 2005, Defina and Sergeant Greg Martakos met
with Police Commissioner Richard Bairham to discuss “abusive”
HPD practices. Those practices included the use of internal
investigations to intimidate officers who were critical of
Agrafiotis and various “preferential and vindictive personnel
practices.” In addition, Defina and Martakos expressed their
concern regarding Agrafiotis’s mental stability and referenced a
specific incident involving a civilian employee where Agrafiotis
improperly reached for his weapon. Another Commissioner, David
Gagnon, requested that Defina and Martakos put their concerns in
writing.
On January 1 7 , Defina and Martakos filed a written
complaint against Agrafiotis on behalf of themselves and certain
other officers and civilian employees. The next day, the
Commission voted to place Agrafiotis on leave.
The Commission appointed an outside investigator, Gerald J.
Hayes, to look into the complaints against Agrafiotis and
designated Defina as the liaison with Hayes. Defina acted as
2 the liaison for the duration of the investigation but complained
to the Commission that it had improperly interfered with the
investigation by prohibiting Hayes from interviewing former HPD
employees. On March 2 8 , the Commission sent a memorandum to the
HPD stating that based upon Hayes’s investigation, Agrafiotis
was being reinstated as chief of the department.
Over the next few years, Agrafiotis engaged in a pattern of
retaliation and harassment against Defina for initiating the
complaint. The retaliatory actions included bringing false
disciplinary charges, manipulating disciplinary investigations
in order to secure findings of misconduct, influencing other
officers to prepare false and negative personnel evaluations,
and denying Defina promotional opportunities.
In April 2008, Defina was assigned to serve as the School
Resource Officer (“SRO”) for the Hooksett School District. In
October 2008, Agrafiotis directed Defina to reduce the number of
hours he spent on his SRO duties to two hours each day. Maura
Ouellette, the chair of the Hooksett School Board, sent a letter
to a local newspaper, the Hooksett Banner, discussing and
complaining about the HPD’s decision to reduce Defina’s SRO
hours. Shortly thereafter, an article appeared in the Hooksett
3 Banner criticizing the reduction of hours.
Agrafiotis directed Defina to contact the author of the
article to respond to the criticisms. Defina attempted but
failed to contact the author and was disciplined.
On November 1 4 , 2008, on Defina’s day off, Agrafiotis
directed Defina to come to the Hooksett police station and draft
a report addressing the issues in Ouellette’s letter and the
newspaper article. Defina drafted a report that Agrafiotis
deemed to be unsatisfactory. Thereafter, other officers in the
HPD prepared a report for Defina, and Defina reluctantly signed
his name to it despite believing it to be inaccurate.
In the following months, Agrafiotis continued to take
retaliatory actions against Defina, including instituting
numerous disciplinary actions and removing him from his SRO
position. Although Defina had received positive daily
evaluations from his supervisor, the Commission voted to
terminate Defina on September 8 , 2009, for unsatisfactory
performance. The Commission did not afford Defina a hearing
before the termination vote.
II. STANDARD OF REVIEW
4 In considering a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), I “accept as true the well-pleaded
factual allegations of the complaint, draw all reasonable
inferences therefrom in the plaintiff’s favor and determine
whether the complaint, so read, sets forth facts sufficient to
justify recovery on any cognizable theory.” Martin v . Applied
Cellular Tech., 284 F.3d 1 , 6 (1st Cir. 2002). The plaintiff
must make factual allegations sufficient to “state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v .
Twombly, 550 U.S. 5 4 4 , 570 (2007). A claim is facially
plausible when it pleads “factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged. The plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.”
Ashcroft v . Iqbal, 129 S . C t . 1937, 1949 (2009) (citations
omitted).
III. ANALYSIS
Agrafiotis moves to dismiss two of the claims against him:
a procedural due process claim brought under Section 1983 and a
5 wrongful termination claim. I address each claim in turn.
A. Procedural Due Process
Defina alleges in Count II that defendants, including
Agrafiotis, deprived him of his protected property interest in
his continued employment with the HPD without constitutionally
adequate process. Agrafiotis argues that he did not violate
Defina’s due process rights because he had no authority, and was
not involved in the decision, to terminate Defina’s employment.
To establish a procedural due process claim, a plaintiff in
Defina’s position must show that defendants deprived him of a
protected liberty or property interest without constitutionally
adequate process. Aponte-Torres v . Univ. of P.R., 445 F.3d 5 0 ,
56 (1st Cir. 2006); see Perez-Acevedo v . Rivero-Cubano, 520 F.3d
2 6 , 30 (1st Cir. 2008). Thus, “to determine whether due process
requirements apply in the first place, we must look . . . to the
nature of the interest at stake.” Bd. of Regents v . Roth, 408
U.S. 5 6 4 , 570-71 (1972). If the plaintiff adequately alleges a
protected interest, “the question remains what process is due.”
Morrissey v . Brewer, 408 U.S. 4 7 1 , 481 (1972).
Defina contends that he had a protected property interest
in his continued employment with the HPD, which was established
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Defina v . Hooksett, et a l . CV-10-372-PB 4/10/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Jason Defina
v. Case N o . 10-cv-372-PB Opinion N o . 2012 DNH 070 Town of Hooksett, et a l .
MEMORANDUM AND ORDER
Jason Defina sued the Town of Hooksett, the Hooksett Police
Commission, and Police Chief Stephen Agrafiotis alleging
constitutional and state law claims arising from his termination
from the Hooksett Police Department. Agrafiotis moves to
dismiss two of Defina’s claims against him: violation of his due
process rights under 42 U.S.C. § 1983 and wrongful termination.
Defina objects. In this Memorandum and Order, I grant
Agrafiotis’s motion to dismiss.
I. BACKGROUND1
Defina was hired as a patrolman for the Hooksett Police
Department (“HPD”) on July 6, 1999. He worked at the HPD for
1 The background is taken from the Amended Complaint (Doc. N o . 21) construed under the Rule 12(b)(6) standard. the next five and a half years without incident as a pistol,
rifle, and baton instructor, as well as a field training officer
for new recruits.
On January 1 0 , 2005, Defina and Sergeant Greg Martakos met
with Police Commissioner Richard Bairham to discuss “abusive”
HPD practices. Those practices included the use of internal
investigations to intimidate officers who were critical of
Agrafiotis and various “preferential and vindictive personnel
practices.” In addition, Defina and Martakos expressed their
concern regarding Agrafiotis’s mental stability and referenced a
specific incident involving a civilian employee where Agrafiotis
improperly reached for his weapon. Another Commissioner, David
Gagnon, requested that Defina and Martakos put their concerns in
writing.
On January 1 7 , Defina and Martakos filed a written
complaint against Agrafiotis on behalf of themselves and certain
other officers and civilian employees. The next day, the
Commission voted to place Agrafiotis on leave.
The Commission appointed an outside investigator, Gerald J.
Hayes, to look into the complaints against Agrafiotis and
designated Defina as the liaison with Hayes. Defina acted as
2 the liaison for the duration of the investigation but complained
to the Commission that it had improperly interfered with the
investigation by prohibiting Hayes from interviewing former HPD
employees. On March 2 8 , the Commission sent a memorandum to the
HPD stating that based upon Hayes’s investigation, Agrafiotis
was being reinstated as chief of the department.
Over the next few years, Agrafiotis engaged in a pattern of
retaliation and harassment against Defina for initiating the
complaint. The retaliatory actions included bringing false
disciplinary charges, manipulating disciplinary investigations
in order to secure findings of misconduct, influencing other
officers to prepare false and negative personnel evaluations,
and denying Defina promotional opportunities.
In April 2008, Defina was assigned to serve as the School
Resource Officer (“SRO”) for the Hooksett School District. In
October 2008, Agrafiotis directed Defina to reduce the number of
hours he spent on his SRO duties to two hours each day. Maura
Ouellette, the chair of the Hooksett School Board, sent a letter
to a local newspaper, the Hooksett Banner, discussing and
complaining about the HPD’s decision to reduce Defina’s SRO
hours. Shortly thereafter, an article appeared in the Hooksett
3 Banner criticizing the reduction of hours.
Agrafiotis directed Defina to contact the author of the
article to respond to the criticisms. Defina attempted but
failed to contact the author and was disciplined.
On November 1 4 , 2008, on Defina’s day off, Agrafiotis
directed Defina to come to the Hooksett police station and draft
a report addressing the issues in Ouellette’s letter and the
newspaper article. Defina drafted a report that Agrafiotis
deemed to be unsatisfactory. Thereafter, other officers in the
HPD prepared a report for Defina, and Defina reluctantly signed
his name to it despite believing it to be inaccurate.
In the following months, Agrafiotis continued to take
retaliatory actions against Defina, including instituting
numerous disciplinary actions and removing him from his SRO
position. Although Defina had received positive daily
evaluations from his supervisor, the Commission voted to
terminate Defina on September 8 , 2009, for unsatisfactory
performance. The Commission did not afford Defina a hearing
before the termination vote.
II. STANDARD OF REVIEW
4 In considering a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), I “accept as true the well-pleaded
factual allegations of the complaint, draw all reasonable
inferences therefrom in the plaintiff’s favor and determine
whether the complaint, so read, sets forth facts sufficient to
justify recovery on any cognizable theory.” Martin v . Applied
Cellular Tech., 284 F.3d 1 , 6 (1st Cir. 2002). The plaintiff
must make factual allegations sufficient to “state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v .
Twombly, 550 U.S. 5 4 4 , 570 (2007). A claim is facially
plausible when it pleads “factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged. The plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.”
Ashcroft v . Iqbal, 129 S . C t . 1937, 1949 (2009) (citations
omitted).
III. ANALYSIS
Agrafiotis moves to dismiss two of the claims against him:
a procedural due process claim brought under Section 1983 and a
5 wrongful termination claim. I address each claim in turn.
A. Procedural Due Process
Defina alleges in Count II that defendants, including
Agrafiotis, deprived him of his protected property interest in
his continued employment with the HPD without constitutionally
adequate process. Agrafiotis argues that he did not violate
Defina’s due process rights because he had no authority, and was
not involved in the decision, to terminate Defina’s employment.
To establish a procedural due process claim, a plaintiff in
Defina’s position must show that defendants deprived him of a
protected liberty or property interest without constitutionally
adequate process. Aponte-Torres v . Univ. of P.R., 445 F.3d 5 0 ,
56 (1st Cir. 2006); see Perez-Acevedo v . Rivero-Cubano, 520 F.3d
2 6 , 30 (1st Cir. 2008). Thus, “to determine whether due process
requirements apply in the first place, we must look . . . to the
nature of the interest at stake.” Bd. of Regents v . Roth, 408
U.S. 5 6 4 , 570-71 (1972). If the plaintiff adequately alleges a
protected interest, “the question remains what process is due.”
Morrissey v . Brewer, 408 U.S. 4 7 1 , 481 (1972).
Defina contends that he had a protected property interest
in his continued employment with the HPD, which was established
6 by New Hampshire Revised Statutes Annotated § 105-C:4. Section
105-C:4 provides:
It shall be the duty of the police commissioners to appoint such police personnel, including police officers, staff, constables and superior officers, as they deem necessary and to fix such persons’ compensation. The commissioners shall make and enforce all rules necessary for the operation of the police force in the manner most beneficial to the public interest. The commissioners may at any time remove police personnel for just cause and after a hearing satisfying the requirements of due process, which cause shall be specified in an order of removal except that special police officers appointed and designated as such shall serve at the pleasure of the commission and may be removed for other than just cause.
Agrafiotis does not address whether the statute created a
constitutionally protected property interest for Defina o r , if
it did, whether Defina was denied adequate due process. Rather,
he argues that the claim against him fails because he is not a
police commissioner, and does not have any authority to remove
police personnel under the statute. Defina concedes that
Agrafiotis did not have a statutory responsibility to provide
him with due process but argues that Agrafiotis was generally
involved in Defina’s termination and misused his public
authority generally. Defina contends that these factual
allegations are sufficient to survive a motion to dismiss on his
7 due process claim.
Assuming without deciding that Section 104-C:4 establishes
a constitutionally protected property interest in employment
that requires due process before an officer can be terminated,
Defina has failed to allege facts supporting a claim that
Agrafiotis terminated him. To adequately allege that Agrafiotis
deprived him of his due process rights, Defina must allege facts
that “show ‘that [Agrafiotis’s] conduct was the cause in fact of
the alleged deprivation.’” Gagliardi v . Sullivan, 513 F.3d 3 0 1 ,
306 (1st Cir. 2008) (quoting Rodríguez-Cirilo v . García, 115
F.3d 5 0 , 52 (1st Cir. 1997)). Thus, Defina must allege facts to
show that Agrafiotis “was personally responsible for the
deprivation of a constitutional right.” Johnson v . Snyder, 444
F.3d 579, 583 (7th Cir. 2006) (internal quotation marks and
citation omitted); see also Al-Jundi v . Estate of Rockefeller,
885 F.2d 1060, 1065 (2d Cir. 1989).
Here, Section 104-C:4 applies to police commissioners, not
police chiefs such as Agrafiotis. Although Defina contends that
Agrafiotis’s conduct contributed to his termination, he does not
allege facts that suggest that Agrafiotis had the authority to
terminate his employment, influenced the Commission’s decision
8 to terminate his employment, or was in any way involved in the
denial of his right to a hearing. See Gagliardi, 513 F.3d at
309 (“[N]either Mayor Sullivan nor any other Lawrence official
was responsible for the decision to decertify the Board, and
they accordingly had no duty to provide Gagliardi with notice or
an opportunity to be heard.”). Therefore, Defina has failed to
state a plausible claim for relief for a due process violation
against Agrafiotis.
B. Wrongful Termination
Defina alleges in Count V that defendants terminated him in
bad faith for performing acts that public policy would
encourage, which include his participation in the investigation
into Agrafiotis’s improper actions and his “unwillingness to
communicate misleading opinions to the Hooksett Banner.” Am.
Compl. ¶ 73 (Doc. N o . 2 1 ) . Agrafiotis argues that the wrongful
termination claim against him should be dismissed because he
cannot be found liable for wrongful termination, as he was not
Defina’s employer.
New Hampshire recognizes a claim for wrongful termination
when an employee alleges facts showing that “(1) his termination
was motivated by bad faith, retaliation or malice; and (2) that
9 he was terminated for performing an act that public policy would
encourage or for refusing to do something that public policy
would condemn.” MacKenzie v . Linehan, 158 N.H. 476, 480 (2009)
(citing Lacasse v . Spaulding Youth Ctr., 154 N.H. 246, 248
(2006)); see also Short v . Sch. Admin. Unit N o . 1 6 , 136 N.H. 7 6 ,
84 (1992). “The public policy contravened by the wrongful
discharge can be based on statutory or nonstatutory policy.”
Cilley v . N.H. Ball Bearings, Inc., 128 N.H. 4 0 1 , 406 (1986)
(internal citation omitted).
Assuming without deciding that Defina has alleged facts to
support a claim for wrongful termination against the other
defendants, his claim against Agrafiotis must be dismissed.
Defina does not allege that Agrafiotis was his employer and, as
discussed above, Section 105-C:4 provides that the police
commissioners, and not Agrafiotis, have the authority to
terminate an officer.
Defina argues that under New Hampshire law a wrongful
termination claim is based in tort, not contract, and that
therefore the claim is not limited to employers. Defina is
correct that under New Hampshire law, wrongful termination is a
cause of action in tort, not contract. See Porter v . City of
10 Manchester, 151 N.H. 3 0 , 39 (2004). Defina, however, does not
explain how the tort theory of liability underlying a wrongful
termination claim expands liability to non-employers. Nor has
he attempted to distinguish my prior decision in Bonczar v .
Suburban Propane Gas Corp., N o . 94-68-B, slip o p . at 17 (D.N.H.
Sept. 3 0 , 1996), in which I determined that a wrongful
termination claim cannot be maintained against a person who was
not the plaintiff’s employer.
Defina argues in the alternative that he can maintain a
wrongful termination claim against Agrafiotis because he
“alleges acts by [Agrafiotis] amounting to constructive
termination.” P l . O b j . 2-3, Doc. N o . 25-1. A constructive
termination “occurs when an employer renders an employee’s
working conditions so difficult and intolerable that a
reasonable person would feel forced to resign.” Karch v .
BayBank FSB, 147 N.H. 525, 536 (2002) (internal quotation marks
and citation omitted). Because Agrafiotis was not Defina’s
employer, he may not maintain a wrongful termination claim
against him, regardless of whether the claim is based on actual
termination or constructive termination. Accordingly, I grant
Agrafiotis’s motion to dismiss the wrongful termination claim.
11 IV. CONCLUSION
For the reasons stated above, I grant Agrafiotis’s motion
to dismiss Defina’s due process claim (Count II) and wrongful
termination claim (Count V ) (Doc. N o . 2 4 ) .
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
April 1 0 , 2012
cc: H . Jonathan Mayer, Esq. Eric G. Moskowitz, Esq. Charles P. Bauer, Esq. Daniel J. Mullen, Esq.