Dyne v. Babin CV-97-31-SD 11/10/98 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Mikel Dyne
v. Civil No. 97-31-SD
Louis P. Babin, individually and in his official capacity as Chief of Police for the Littleton Police Department; Kathryn Taylor, individually and in her capacity as former Littleton Selectperson; Donald Craigie, individually and in his capacity as former Littleton Selectperson; Earl Ellinqwood, individually and in his capacity as former Littleton Selectperson; and Town of Littleton, New Hampshire
O R D E R
Plaintiff Mikel Dyne, a former member of the Littleton, New
Hampshire, police department, brings this action against the Town
of Littleton (town), its police chief, and three of its former
selectpersons, claiming violations of his civil rights under 42
U.S.C. § 1983 (Counts I, II, and III) and making state law claims
(Counts IV, V, and V I ) .
Count I alleges that the defendants violated Dyne's First
Amendment right to free speech by refusing to allow him to speak out against subordinate officers whom he learned were involved in
illegal conduct and by instituting new working conditions in
retaliation for having voiced his concerns. The remaining counts
are all based upon Dyne's alleged constructive and/or actual
discharge. Counts II and III allege a deprivation of substantive
and procedural due process in violation of the Fourteenth
Amendment. Count IV alleges wrongful termination. Count V is a
breach of contract claim, and Count VI alleges intentional
interference with contractual relations.
Currently before this court is defendants' motion for
summary judgment,1 to which plaintiff objects.
Background
_____ Mikel Dyne began his career as a police officer with the
Town of Littleton in April 1982 and became a sergeant in April
1991. As a full-time police officer, his tenure was governed by
New Hampshire Revised Statutes Annotated (RSA) 41:48, which
provides that full-time officers "shall continue to hold such
^Although the motion and memorandum of law indicate they are from the Town of Littleton only, without reference to the other defendants, the court assumes they were submitted on behalf of all defendants. The motion raises qualified immunity on behalf of the individual defendants; furthermore, Attorney Donald Gardner entered an appearance for all defendants, and the court has not received a change of appearance indicating that the individual defendants have retained new counsel. 2 office during good behavior, unless sooner removed for cause by
the selectmen, after notice and hearing, or unless the town has
rescinded its action as provided in 41:47." The terms and
conditions of plaintiff's employment were governed by a
collective bargaining agreement (CBA) negotiated between the
police union and the town and signed in March 1992. The CBA
provided that disciplinary action, including discharge, could
only be taken for "just cause" and outlined a three-part
grievance procedure for disputes "involving the interpretation,
application or alleged violation of any provision of this
agreement." Defendants' Motion for Summary Judgment, Exhibit E
at 6.
Between November 1992 and January 1993, Dyne became aware of
two incidents involving Littleton police officers which he
believed to be illegal. The first incident involved a gun
allegedly taken from the evidence room. Officer Herb Lloyd had
told another officer that he was interested in keeping the gun,
which was evidence acquired in an investigation in which Lloyd
participated. When it was discovered that the gun was missing.
Chief Babin told the entire force there would be a major problem
if the weapon was not returned. Shortly thereafter, the gun was
found in another officer's locker. That officer and Officer
Lloyd were polygraphed. The polygraph indicated that the denial
3 by the officer in whose locker the gun was found was more
credible than Lloyd's denial.
The second incident occurred just two months later, when
Lloyd allegedly ordered a subordinate officer to strip-search a
black youth who was not under arrest and had not been officially
detained.
After learning of the two incidents, plaintiff met with
Chief Babin and recommended that Lloyd be terminated. Chief
Babin elected not to discipline anyone. Dyne repeatedly raised
this issue with the chief until Dyne left the Littleton police
department on January 19, 1994.
During this period, the terms and conditions of plaintiff's
employment allegedly changed. Specifically, the police
department opted out of a previous commitment it had made to Dyne
to help fund a burglary investigation he was conducting; he was
required to complete extensive daily log sheets; and he was
ordered to attend every session of a violence intervention class
for the third grade in the Littleton Elementary School.
On December 22, 1993, Dyne submitted a letter of resignation
to Chief Babin to be effective on January 5, 1994. After
plaintiff explained to the chief the reasons prompting him to
resign, the chief told Dyne that changes would be made.
Consequently, Dyne withdrew his letter. When the issues
4 surrounding the misconduct were not addressed, plaintiff
resubmitted his letter of resignation on January 12, 1994, to be
effective January 19. On January 14, after hearing a rumor that
he was being forced out of the department. Dyne attempted once
again to rescind his letter of resignation. The chief stated
that plaintiff's resignation had been accepted by the
selectpersons of the town. Consequently, Dyne left his position
on January 19, 1994, and turned in his equipment one day later.
In September 1996, Dyne learned that the Littleton selectpersons
had not accepted his resignation in January 1994 as Chief Babin
had indicated.
On January 17, 1997, Dyne filed both a Whistleblower's
Protection Act, RSA 275-E, complaint with the New Hampshire
Department of Labor and a complaint with this court. On March 3,
1998, the New Hampshire Department of Labor conducted a hearing
regarding Dyne's complaint. After hearing plaintiff's testimony,
the hearing officer dismissed the complaint, holding that Dyne
failed to avail himself of the grievance procedures available to
him through the CBA as required by the Whistleblower's Protection
Act. See Defendants' Memorandum, Exhibit F.
5 Discussion
1. Suramary Judgment Standard
Under Rule 56(c), Fed. R. Civ. P., summary judgment is
appropriate "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Summary judgment is a procedure that
involves shifting burdens between the moving and nonmoving
parties. Initially, the onus falls upon the moving party to aver
"'an absence of evidence to support the nonmoving party's case.'"
Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the moving party satisfies this requirement, the pendulum
swings back to the nonmoving party, who must oppose the motion by
presenting facts that show that there is a "genuine issue for
trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986) (citing Fed. R. Civ. P. 56(e)); LeBlanc v. Great American
Ins. C o ., 6 F.3d 836, 841 (1st Cir. 1993), cert, denied, 511 U.S.
1018 (1994). In determining whether or not summary judgment is
appropriate, the court construes the evidence and draws all
6 justifiable inferences in the nonmoving party's favor.2 See
Anderson, supra, 477 U.S. at 255.
2. Res Judicata
Plaintiff argues that the finding in the WhistleBlower's
Protection Act decision that the terms and conditions of Dyne's
employment were negatively impacted should be treated as res
judicata. Plaintiff's Objection at 8. The doctrine of res
judicata prohibits an attempt to relitigate "precisely the same
question, particular controversy, or issue, which has been
necessarily tried and finally determined" in an earlier
litigation. See Hallisev v. Deca Corp., 140 N.H. 443, 444, 667
A.2d 343, 344 (1995). After hearing plaintiff's testimony, the
hearing officer dismissed the case because Dyne failed to utilize
the grievance procedures available to him. The officer's finding
2Defendants argue that Dyne's allegations are based upon inadmissible evidence and thus should not be considered by this court. See Defendants' Reply to Plaintiff's Objection at 3. Defendants are correct that courts shall not consider hearsay statements in ruling on a motion for summary judgment, see Stone and Michaud Ins., Inc. v. Bank Five for Sav., 785 F. Supp. 1065, 1071 (D.N.H. 1992); however. Dyne's testimony of out-of-court statements concerning the alleged police misconduct and of conversations he had with Chief Babin and former Town Manager Michael Farrell does not fall into the category of hearsay. His testimony is not offered to prove the truth of those statements, but rather for the nonhearsay purpose of proving that the statements were made. Accordingly, the testimony is not excluded from this court's consideration. 7 that the conditions of Dyne's employment were adversely affected
was not necessary to the judgment and thus is not entitled to
preclusive effect. See Monarch Life Ins. Co. v. Ropes & Gray, 68
F.3d 973, 978 (1st Cir. 1995) ("In order to invoke collateral
estoppel [defendant] must demonstrate that . . . [the court's]
resolution of that issue of law or fact was essential to its
judgment (i.e., necessary to its holding).")
3. Statute of Limitations
The limitations period for Counts I, II, and III, personal
injury actions brought under section 1983, is governed by the law
of the forum state. See Wilson v. Garcia, 471 U.S. 261, 280
(1985). The remaining counts are either contract or personal
injury actions. Since the statute of limitations for both
personal injury and contract actions in New Hampshire is three
years, RSA 508:4, I, each of Dyne's claims must have accrued no
more than three years prior to January 17, 1997, the date he
filed suit.
In a contract action, the claim accrues when the contract
breach occurs, see Bronstein v. GeoEnvironmental, Inc., 140 NH
253, 255, 665 A.2d 369, 371 (1995); in a tort action, the claim
accrues when the plaintiff should reasonably know of the damage.
See Conrad v. Hazen, 140 NH 249, 252, 665 A.2d 372, 375 (1995).
8 The jurisprudence of section 1983 actions directs courts to
examine federal law to determine the accrual period. See Calero-
Colon v. Betancourt-Lebron, 68 F.3d 1, 3 (1st Cir. 1995). Under
federal law, accrual starts when the plaintiff "knows, or has
reason to know, of the injury on which the action is based."
Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 353 (1st Cir.
1992). However, a claim alleging a violation that occurs over an
extended period is timely so long as some of the challenged acts
fall within the statutory period. See Bruno v. Western Electric
Co., 829 F.2d 957, 960 (10th Cir. 1987); Goldman v . Sears,
Roebuck & Co., 607 F.2d 1014, 1018 (1st Cir. 1979), cert, denied,
445 U.S. 929 (1980). A claim will not be saved, however, if only
the consequences of the alleged violation fall within the
limitations period. De Leon Otero v . Rubero, 820 F.2d 18,19 (1st
Cir. 1987).
Two relevant questions arise. First, when did Dyne know or
have reason to know of the injury on which his action is based?
Second, if Dyne knew of the injury before January 17, 1994, has
he alleged sufficient evidence for a fact finder to conclude that
the violations continued to occur, eventually falling within the
statutory period? Defendants argue that Dyne knew of his alleged
injury by either December 22, 1993, or January 5, 1994, the dates
on which he submitted his letters of resignation. Defendants'
9 Motion for Summary Judgment at 23. Therefore, defendants argue.
Dyne's claims are time barred. Dyne rebuts that the injury did
not occur until he left the town's employ on January 19, 1994.
Plaintiff's Objection at 14.
Thus the dispositive issue is whether his injury occurred
prior to or, rather, the actual moment he left the Littleton
police department. The United States Supreme Court addressed a
similar question in Delaware State College v. Ricks, 449 U.S.
250, 252, 257-58 (1980), a case in which the plaintiff, a
professor, was denied tenure in June 1974. The college then
offered him a terminal contract that expired one year later, in
June 1975. In September 1977, Ricks brought a civil action under
42 U.S.C. § 1981, alleging racial discrimination. Actions
brought under section 1981 must be filed within three years of
the alleged unfair employment decision. Because the allegedly
unlawful act was the denial of tenure, the United States Supreme
Court held that the plaintiff's claim accrued in June of 1974,
not on the date his employment was terminated. The termination
date itself was merely the "inevitable consequence" of prior
discrimination and thus did not trigger the statute of
limitations. Id. at 258. Because the mere continuation of his
employment was insufficient to prolong the life of his cause of
action, his claim was time barred.
10 The instant case, however, is distinguishable. The Court in
Ricks put great emphasis on the finality of the college's
decision to deny the plaintiff tenure. See i d . at 262. There
was nothing the plaintiff alone could do to prevent his eventual
termination from employment. By contrast. Dyne's letters of
resignation lacked this definitive quality. He withdrew the
first letter when Chief Babin promised that conditions would
improve, and he attempted to withdraw the second. Moreover, Dyne
avers that until the day he left, he continued to speak with
Chief Babin and Town Manager Farrell over the reasons which
forced him to leave. See Plaintiff's Objection at 14. A
factfinder could conclude that until Dyne actually left his
employment on January 19, 1994, he was hopeful that the
conditions of his employment would improve. Thus, until he
actually left, his constructive discharge was undetermined.
Based on this record. Dyne's injury did not occur until January
19, 1994.
Count I alleges that, in retaliation for having exercised
his First Amendment right to free speech, defendants instituted
new working conditions so difficult that Dyne was forced to
resign. Having submitted his first letter of resignation to
Chief Babin on December 22, 1993, Dyne must have known of the
retaliation against him by that date. The final alleged
11 retaliatory act, however, was the constructive discharge itself.
Thus the alleged violation of his First Amendment rights
continued to occur, eventually falling within the limitations
period. Likewise, Counts II through VI, all based upon Dyne's
alleged constructive discharge, are not time barred as a matter
of law.
4. Qualified Immunity
The individual defendants assert the affirmative defense of
qualified immunity from damages as to Dyne's section 1983 claims.
Qualified immunity shields government officials performing
discretionary functions from "liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Whether
an official protected by qualified immunity may be held
personally liable for an allegedly unlawful action generally
turns on the "objective legal reasonableness" of the action,
assessed in light of the legal rules that were "clearly
established" at the time it was taken. Id. at 818, 819.
"To be 'clearly established,' the 'contours of the right
must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.'" Quintero
12 de Quintero v. Aponte-Rocrue, 974 F.2d 226, 228 (1st Cir. 1992)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). "This
is not to say that an official action in question has previously
been held unlawful, see Mitchell v. Forsyth, 472 U.S. 511, 535
n.12 (1985), but it is to say that in the light of pre-existing
law the unlawfulness must be apparent." Anderson, supra, 483 U.S.
at 640. "If the law was clearly established, the immunity
defense should ordinarily fail, since a reasonably competent
public official should know the law governing his conduct."
Harlow, supra, 457 U.S. at 818-819.
While the merits of Dyne's First and Fourteenth Amendment
claims are addressed in sections 4 and 5 below, the relevant
questions here are (1) whether the law governing those claims was
clearly established at the time the individual defendants
allegedly acted and (2) whether a reasonable official would have
understood that what he was doing violated that right.
a. Chief Babin
Count I alleges a deprivation of Dyne's First Amendment
right to free speech. In Mt. Healthy Bd. of Educ. v. Doyle, 429
U.S. 274, 287 (1977), the Supreme Court established that adverse
action taken by a public employer against an employee motivated
by the employee's exercise of constitutionally protected speech
13 is a violation of the First Amendment. The First Circuit has
used a three-pronged test to determine whether the employee's
First Amendment right has been violated, focusing on (1) whether
the employee was speaking as a citizen upon matters of public
concern; (2) whether the employee's right to speak out outweighs
the governmental interest in promoting efficient performance of
public service; and (3) whether the government would have reached
the same decision in the absence of the protected conduct. See
0'Connor v . Steeves, 994 F.2d 905, 912 (1st Cir. 1993).
In light of this court's finding that genuine and material
factual issues exist as to whether Chief Babin violated Dyne's
First Amendment right to free speech, see section 5, infra, the
chief is not entitled to qualified immunity at this summary
judgment stage. The court finds and rules that the law governing
Dyne's First Amendment claim was clearly established at the time
of Chief Babin's conduct and that a reasonable police chief would
not have believed that retaliating against an officer for having
voiced his concerns about illegal activity within the department
was lawful in light of this clearly established law.
Counts II and III allege a deprivation of substantive and
procedural due process. In support of his claims. Dyne asserts
two theories by which his resignation could be found to be
involuntary, thus depriving him of his property right to
14 continued employment. First, he claims that in retaliation for
having voiced his concerns to the chief, his working conditions
became so difficult that he was forced to resign. Thus, Dyne
argues, his resignation amounted to a constructive discharge.
Second, apparently in the alternative, he claims that the chief's
statement that Dyne's resignation had been accepted, thereby
preventing Dyne from withdrawing his resignation before its
effective date, amounted to an actual discharge.
As a full-time police officer since April 1982, Dyne's
tenure was governed by RSA 41:48, which gave him an expectation
of continued employment. Thus, at the time Chief Babin allegedly
acted, it was clearly established that Dyne had a property
interest in his employment. It was also clearly established that
a state actor cannot constitutionally deprive an employee of a
property interest without due process. See Board of Regents v.
Roth, 408 U.S. 564, 576 (1972); Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 538 (1985). This court finds and rules
that the law governing Dyne's Fourteenth Amendment substantive
and procedural due process claims was clearly established at the
time of his alleged constructive discharge and that a reasonable
police chief would not believe that instituting new working
conditions so difficult or unpleasant that they amounted to a
constructive discharge was lawful. Thus Chief Babin is not
15 entitled to qualified immunity with respect to Dyne's
constructive discharge claim.
Chief Babin is immune, however, from Dyne's claim of actual
discharge. The First Circuit has not concluded that a
misrepresentation by an employer or its agent concerning the
right of an employee to withdraw his or her letter of resignation
may amount to an actual discharge. Moreover, while the chief's
statement may have turned out to be untrue, there is no evidence
suggesting that the chief acted in bad faith or knew his
statement was false at the time he made it. See Plaintiff's
Objection at 10. Thus, even had the law been clearly
established, the chief could not have reasonably known that his
statement violated a constitutionally protected right.
d. Town Selectpersons
The town selectpersons named as defendants in this action
are immune from plaintiff's section 1983 claims. With respect to
his First Amendment claim. Dyne has not presented evidence that
former selectpersons Taylor, Craigie, and Ellingwood were aware
of the retaliatory acts taken against him. With respect to his
Fourteenth Amendment claims, Dyne does not allege that the
selectpersons knew his resignation was the result of a
constructive discharge and thus was without just cause. They
16 also could not have believed that the mere act of accepting
Dyne's resignation deprived him of his constitutional rights.
Thus defendants Taylor, Craigie, and Ellingwood, having no
knowledge of the alleged constitutional violations, are entitled
to qualified immunity.
5. First Amendment
Count I alleges that the defendants violated plaintiff's
First Amendment right to free speech by refusing to allow him to
speak out against subordinate officers who he learned were
involved in illegal conduct and by instituting new working
conditions in retaliation for having voiced his concerns. Dyne
has not presented support for the theory that Chief Babin, as his
superior officer, was obligated to institute his recommendations
that the officers involved in the alleged illegal conduct be
disciplined or dismissed. The record clearly indicates that
Chief Babin did not prevent Dyne from voicing his concerns.
Defendant's Memorandum, Exhibit D at 123-125. Thus plaintiff's
claim that the chief violated his First Amendment right to free
speech by refusing to allow him to speak out against the officers
is without merit.
Plaintiff's second theory, however, raises a number of
compelling questions. The First Circuit uses a three-pronged
17 test to determine whether a public employee has an actionable
claim for the infringement of his or her First Amendment rights.
See 0'Connor, supra, 994 F.2d at 912. First, the court must
determine whether the employee was speaking "as a citizen upon
matters of public concern" or, alternatively, "as an employee
upon matters only of personal interest." Connick v. Myers, 461
U.S. 138, 147-48 (1983). In 0'Connor, the plaintiff, a former
superintendent of public works, was discharged following a feud
with the town selectmen. O'Connor brought suit against the town
and three selectmen for violating his First Amendment right to
free speech by discharging him for having revealed misconduct by
an incumbent elected official. The court found that the
plaintiff's revelations directly implicated a topic of inherent
concern to the community. See 0'Connor, supra, 994 F.2d at 915;
see also Brasslet v. Cota, 761 F.2d 827, 844 n.14 (1st Cir. 1985)
(fire chief's public commentary on available fire protection and
on town council's actions in dealing with associated problems
plainly qualified as matters of inherent "public concern"). Like
the plaintiff in 0'Connor, Dyne's discussion with Chief Babin
regarding the alleged illegal and unethical conduct of fellow
police officers, including tampering with evidence and ordering a
strip-search of a black youth who had not been arrested or
18 officially detained, constituted a matter of legitimate public
concern.
Second, the court must "balance the strength of the
employee's First Amendment interest and any public parallel
interest in the information which the employee sought to impart,
against the strength of the countervailing governmental interest
in promoting efficient performance of the public service the
government agency or entity must provide through its employees."
0'Connor, supra, 994 F.2d at 912 (citing Pickering v. Board of
Educ., 391 U.S. 563, 568 (1968)). The court in 0'Connor found a
strong public interest in the plaintiff's disclosures of a public
official's alleged abuse of office, thus heavily weighting the
scale in favor of First Amendment protection against retaliation
for the plaintiff's speech. 0'Connor, supra, 994 F.2d at 916.
Although the court addressed abuses by an elected official,
alleged abuses by appointed police officers are sufficiently
analogous to weigh the scale in favor of Dyne's First Amendment
protection. Moreover, in the instant action, the town has not
presented evidence supporting its legitimate interest as employer
in curtailing the specific disclosures which plaintiff alleges
were the basis for his constructive discharge. Viewing the record
in the light most favorable to plaintiff, this court cannot
conclude that the town's interest in suppressing Dyne's speech
19 outweighed the importance of the legitimate public interest in
his discussions with the police chief concerning the alleged
police misconduct.
Third, the public employee "must show that the protected
expression was a substantial or motivating factor in the adverse
employment decision; and, if the plaintiff meets this test, the
defendant governmental entity must be afforded an opportunity to
show 'by a preponderance of the evidence that [it] would have
reached the same decision . . . even in the absence of the
protected conduct.'" 0'Connor, supra, 994 F.2d at 913 (quoting
Mt. Healthy, supra, 429 U.S. at 287). The town argues that, even
if this court finds that plaintiff's resignation was involuntary,
there is no evidence that his speech was a substantial or
motivating factor in his discharge. Thus, defendant argues,
plaintiff's First Amendment claim is without merit. In response.
Dyne alleges that the terms and conditions of his employment
became intolerable only after he continued to urge the chief to
address the alleged misconduct and discipline the officers
involved. It is indeed notable that, after Dyne had worked as a
full-time Littleton police officer and/or sergeant for more than
ten years, the conditions of his employment allegedly began to
change shortly after he voiced his concerns about police
misconduct to Chief Babin. See Mesnick v. General Elec. Co., 950
20 F.2d 816, 828 (1st Cir. 1991) ("temporal proximity of an
employee's protected activity to an employer's adverse action"
may be circumstantial evidence of retaliation allowing plaintiff
to survive summary judgment). Dyne's supported allegations are
sufficient to create a genuine and material factual issue as to
whether the chief's actions were motivated by a desire to
retaliate against him for exercising his First Amendment rights.
Moreover, the town has not presented evidence that Chief Babin
would have acted the same way had Dyne not constantly voiced his
concerns.
For the abovementioned reasons, this court finds that Dyne
has alleged sufficient evidence for a reasonable jury to find
that the defendants violated his First Amendment right to free
speech.
6. Fourteenth Amendment
Dyne claims that he was deprived of his "liberty and/or
property interest" in continued employment by defendants acting
under color of state law, thus by state action, without due
process of law. See Complaint at 12. To claim entitlement to
the protections of the due process clause, a plaintiff must show
that he has been deprived of a constitutionally protected liberty
or property interest by some form of state action. See Daniels
21 v. Williams, 474 U.S. 327, 331 (1986). Otherwise, the
constitutional right to due process is not implicated.
a. Liberty Interest
Plaintiff alleges that defendants' conduct deprived him of a
liberty interest. To state such a claim. Dyne would have to
allege facts tending to show that defendants made charges against
him that "might seriously damage his standing and associations in
his community" or otherwise "imposed on him a stigma or other
disability that foreclosed his freedom to take advantage of other
employment opportunities." Roth, supra, 408 U.S. at 573-75.
There is nothing in the record to support such a finding.
b. Property Interest
It is undisputed that, as a full-time police officer. Dyne
had a property interest in continued employment. See RSA §41:48.
The more difficult question is whether he was deprived of that
interest. Although courts have typically addressed actual
Fourteenth Amendment deprivations, constructive deprivations have
been recognized as well. See Reed v. Village of Shorewood, 704
F.2d 943, 949 (7th Cir. 1983). If, as Dyne indicates, his
resignation was so involuntary that it amounted to a constructive
discharge, it must be considered a deprivation by state action
triggering the protections of the substantive and procedural
22 components of the due process clause. See Stone v. University of
Maryland Medical System Corp., 855 F.2d 167, 172 (4th Cir. 1988).
If, as the town contends. Dyne voluntarily resigned, then he
surrendered his property interest in continued employment and
thus has no substantive nor procedural rights. The critical
question for this court is whether plaintiff has alleged
sufficient evidence for a reasonable jury to find that he was
constructively discharged, thus making his resignation
involuntary.
As stated above. Dyne asserts two theories by which the
resignation he tendered to Chief Babin could be found to be
involuntary. Because the individual defendants are entitled to
qualified immunity with respect to plaintiff's claim of actual
discharge, this court confines its inquiry to the constructive
discharge claim.
c. Constructive Discharge
"'Through the use of constructive discharge, the law
recognizes that an employee's "voluntary" resignation may be, in
reality, a dismissal by the employer.'" Godfrey v. Perkin-Elmer
Corp., 794 F. Supp. 1179, 1186 (D.N.H. 1992) (quoting Seery v.
Yale-New Haven Hospital, 554 A.2d 757, 761 (Conn. App. Ct. 1989)
(citation omitted)). To establish a claim for constructive
23 discharge, the evidence must support a finding that "the new
working conditions would have been so difficult or unpleasant
that a reasonable person in the employee's shoes would have felt
compelled to resign." Greenberg v. Union Camp Corp., 48 F.3d 22,
26 (1st Cir. 1995); see Calhoun v. Acme Cleveland Corp., 798 F.2d
559, 561 (1st Cir. 1986) (quoting Alicea Rosado v. Garcia
Santiago, 562 F.2d 114, 119 (1st Cir. 1977)). The legal standard
to be applied is "objective," with the inquiry focused on "the
reasonable state of mind of the putative discriminatee."
Calhoun, supra, 798 F. 2d at 561. Consequently, an employee may
not be unreasonably sensitive to his or her working environment.
See i d .
A plaintiff can legitimately be said to feel compelled to
resign under a number of scenarios. A constructive discharge may
occur when an employee's resignation resulted from new working
conditions that were particularly humiliating or demeaning; for
example, by exposing him or her to ridicule in front of clients.
See Greenberg, supra, 48 F.3d at 27 (citing Aviles-Martinez v.
Monroig, 963 F.2d 2, 6 (1st Cir. 1992)). Likewise, a demotion or
reduction in pay are also relevant considerations. See i d .
(citing Goss v. Exxon Office Svs. Co., 747 F.2d 885, 888-89 (3d
Cir. 1984)). The First Circuit has also recognized that direct
or circumstantial evidence of discriminatory animus can
24 substantiate the intolerable nature of one's working conditions.
See id. at 28 (citing Acrev v. American Sheep Indus., 981 F.2d
1569, 1574-5 (10th Cir. 1992)).
Defendants contend that no reasonable person could find that
Dyne was constructively discharged. In support of this
contention, defendants state that "Chief Babin never prevented
the plaintiff from voicing his concerns." Defendants' Motion for
Summary Judgment at 13. However, even assuming that statement to
be true, the more pertinent question is whether sufficient
evidence exists to support a finding that Dyne's working
conditions became so difficult or unpleasant that he was forced
to resign. In support of his claim, plaintiff alleges that the
police department opted out of a commitment it had made to help
fund a major investigation he was conducting in another town;
that he was required to complete extensive daily log sheets,
although previous prosecutors had not been asked to do this; and
that, against his wishes, the chief ordered Dyne to attend every
session of a violence intervention program for a third grade
class at Littleton Elementary School. Viewed alone and out of
context, these working conditions do not appear to be so
difficult or unpleasant that a reasonable person would feel
compelled to resign. See Bristow v. Daily Press, Inc., 770 F.2d
1251, 1254-56 (4th Cir. 1985) (no constructive discharge where
25 conditions, though unpleasant, are part and parcel to the job),
cert, denied, 475 U.S. 1082 (1986). The claim is strengthened,
however, when this evidence is viewed in relation to the
conversations Dyne constantly had with the chief, in which Dyne
objected to the chief's refusal to address the alleged illegal
conduct by fellow police officers.
In cases brought under federal anti-discrimination statutes,
courts considering constructive discharge claims have looked at
whether the adverse action was taken in retaliation for a
protected act. See, e.g.. Hart v. University Svs. Of New
Hampshire, 938 F. Supp. 104, 107 (D.N.H. 1996). In these cases,
the fact that the complained-of actions were motivated by
discriminatory or retaliatory animus makes the actions
intolerable where they otherwise might not be. See Greenburg,
supra, 48 F.3d at 28 ("[E]vidence of a discriminatory animus
could help substantiate a claim that one's working conditions
had become intolerable . . . ."). For example, in Hart, supra,
938 F. Supp. at 107, this court found it significant to
plaintiff's constructive discharge claim that the employer's
request for the plaintiff's resignation and his reduction of her
pay and hours followed shortly after the plaintiff had complained
to her employer about gender discrimination. Likewise, viewing
the evidence in the light most favorable to Dyne, it is
26 significant that Chief Babin instituted new working conditions
only after Dyne objected to the chief's refusal to address the
discipline problem in the department. This court cannot say as a
matter of law that the evidence presented, taken as a whole, is
insufficient to support a finding of constructive discharge.
Defendants argue that Dyne's failure to explore the option
of filing a grievance precludes a finding of constructive
discharge. In another recent case, the court held that "a
reasonable person will usually explore . . . alternative avenues
thoroughly before coming to the conclusion that resignation is
the only option." Larkin v. Town of West Hartford, 891 F. Supp.
719, 729 (D. Conn. 1995) (citing Boze v. Branstetter, 912 F.2d
801, 805 (5th Cir. 1990)). The court included filing a grievance
and "threatening to quit if changes are not made" as acceptable
alternatives one could explore prior to resignation. See i d .
Although Dyne did not file a formal grievance, he claims he
constantly spoke with the chief regarding his concerns about
illegal conduct in the department and withdrew his first letter
of resignation after the chief allegedly told him that changes
would be made. This court cannot say that Dyne failed to explore
alternative avenues before concluding that resignation was his
only option.
27 Lastly, defendants claim that Dyne did not resign within a
reasonable time following the second of the two alleged incidents
which occurred in January 1993. Defendants argue that the one-
year time period between the last incident and plaintiff's
resignation is too great to support a claim of constructive
discharge. See Smith v. Bath Iron Works Corp., 943 F.2d 164, 167
(1st Cir. 1991). In that case, the court ruled for the employer
because the last alleged discriminatory act occurred six months
before the plaintiff resigned. Id. at 167. Here, the alleged
strip search that defendants claim occurred too long before
plaintiff resigned is not the challenged violation. Rather, Dyne
is challenging the change in his working conditions that occurred
after he reported the two illegal incidents to the chief. Much
of this impact allegedly lasted until Dyne actually left the
department. Thus Dyne filed his claim with this court in a
timely manner.
For the abovementioned reasons, this court finds that
plaintiff has alleged sufficient evidence for a reasonable jury
to conclude that he was constructively discharged.
28 7. Pendant State Law Claims
a. Wrongful Discharge
Count IV alleges that the town discharged Dyne out of bad
faith, malice, or retaliation, and that, by attempting to curb
the illegal conduct of fellow police officers. Dyne was
performing acts which public policy would encourage. Thus, Dyne
argues, his termination was wrongful.
Under the governing law of New Hampshire, employees fall
into two classes: contract employees and at-will employees. See
Censullo v. Brenka Video, Inc., 989 F.2d 40, 42 (1st. Cir. 1993)
(citing Panto v. Moore Business Forms, Inc., 130 N.H. 730, 739,
547 A.2d 260, 267 (1988)). An employer's termination of an at-
will employee motivated by bad faith or malice or based on
retaliation is not in the "interest of the economic system or the
public good and constitutes a breach of the employment contract."
Monge v. Beebe Rubber Co., 114 N.H. 130, 133, 316 A.2d 549, 552
(1974). This rule affords the employee a certain stability of
employment and does not interfere with the employer's normal
exercise of his right to discharge, which is necessary to permit
him to operate his business efficiently and profitably. See i d .
Only at-will employees, however, may avail themselves of this
cause of action. Employees with contractual rights to continued
29 employment are limited in their remedies for breach by the terms
of the contract. See Censullo, supra, 989 F. 2d at 42.
In this case, it is undisputed that Dyne was a contract
employee. Article X of the CBA governing Dyne's employment
provided that disciplinary action including discharge could only
be taken for "just cause." Defendant's Memorandum, Exhibit E at
6. Because the CBA includes this discharge provision, the public
policy exception to the employment at will doctrine does not
apply; as a contract employee. Dyne is limited in his remedy for
breach by the terms of the contract.
b. Breach of Contract
In Count V, Dyne contends that the town breached its
contract by discharging plaintiff without cause and without
providing him notice and a hearing as required by RSA 41:48.
However, while this statute vests full-time police officers with
a property right to continued employment, and thus the
protections of due process, it does not double as a bargained
-for exchange between two parties that can be breached. Rather,
the CBA between the Littleton police and the town is the only
contract governing the terms and conditions of Dyne's employment.
Dyne's claim for breach of contract therefore must arise from the
CBA. Defendants request summary judgment on this claim based on
30 the plaintiff's failure to avail himself of the grievance and
arbitration procedures provided in the collective bargaining
agreement.
Courts normally apply federal labor law to interpret a
collective bargaining agreement. See Lingle v. Norge Div. of
Magic Chef, Inc., 486 U.S. 399 (1988); Filbotte v. Pennsylvania
Truck Lines, Inc., 131 F.3d 21, 25 (1st Cir. 1997). "[S]ection
301 [of the Labor Management Relations Act, 29 U.S.C. § 185]
preempts a state-law claim, whether founded upon the state's
positive or common law, if a court, in passing upon the claim,
would be required to interpret the collective bargaining
agreement." Filbotte, supra, 131 F.3d at 26. Thus, it appears
that the contract claim should be interpreted with reference to
the federal law. The defendants, however, have not raised the
preemption issue. In fairness to the plaintiff, the court will
not decide the issue without giving him opportunity to address
the question of whether the applicable law is state contract law
or federal labor law. The defendants' motion for summary
judgment is therefore denied. If defendants' wish to renew their
motion on this count, they may do so, but should address the
preemption issue.
31 c. Interference with Contractual Relations
Count VI alleges that Chief Babin improperly interfered with
Dyne's economic relationship with the town. The chief argues
that Count VI fails to state a claim upon which relief can be
granted because, as an agent of the town acting within the scope
of his employment, he cannot be a third party with respect to the
economic relationship. See Defendants' Motion For Summary
Judgment at 21.
Section 301 preemption appears to be relevant to this claim,
but again has not been addressed by the parties. In Magerer v.
John Sexton & Co., 912 F.2d 525, 530-31 (1st Cir. 1990), the
court held that an intentional interference with contractual
relations claim was preempted by section 301 because its
resolution depended upon the interpretation of a collective
bargaining agreement. That case, however, was based on
Massachusetts tort law. Arguably this holding is not applicable
to the instant claim premised upon New Hampshire law. The court
will deny the motion for summary judgment as resolution of this
claim requires discussion of the section 301 preemption issue,
which has yet to be addressed.
32 Conclusion
For the abovementioned reasons, defendants' motion for
summary judgment is granted in part (Count IV) and denied in part
(Counts I, II, III, V, and V I ) .
SO ORDERED.
Shane Devine, Senior Judge United States District Court
November 10, 1998
cc: Edward M. Van Dorn, Jr., Esq. Donald E. Gardner, Esq.