Fritz v. Brown and Daly CV-0 6-4 69-PB 08/29/07
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Randal C. Fritz
v. Case No. 06-cv-469-PB Opinion No. 2007 DNH 104
Kenneth Brown and Katharine Daly
MEMORANDUM AND ORDER
Randal Fritz, a former investigator for the New Hampshire
Commission for Human Rights, brings this suit pursuant to 42
U.S.C. § 1983, alleging that the Commission's Chairman and
Executive Director violated his First Amendment rights by
retaliating against him after he engaged in speech and acts
protected by the First Amendment. Defendants now move to dismiss
the instant suit, arguing both that his claims fail to state
viable causes of action, and that they are entitled to qualified
immunity. For the reasons set forth below, I grant defendants'
motion in part and deny it in part. I. BACKGROUND
This is Fritz's second lawsuit asserting First Amendment
retaliation claims against the Commission's Chairman and
Executive Director. I dismissed the first action ("Fritz I")
because I determined that the statements on which his claims were
based were not protected by the First Amendment. Fritz v. Dalev,
2006 DNH 125. I first provide some background information on
Fritz I, and then describe Fritz's current claims.
A. Fritz I
Fritz's initial suit arose from a letter he wrote on October
4, 2005, while investigating a hostile work environment claim in
his capacity as a Commission investigator. Fritz mailed the
letter, entitled "Confidential and for Settlement Purposes Only,"
to Attorney Heather Burns, who represented the claimant. Fritz I
Compl., Exhibit 2. In the letter, Fritz outlined the legal
standard for proving a hostile work environment claim, and
bluntly assessed in harsh language what he saw as the lack of
merit in the claim. In doing so, Fritz violated the plain
language of Hum 206.03 by failing to maintain a neutral position
with regard to parties before the Commission at all times. See
- 2 - Hum 206.03(b). Upon receipt of this letter. Burns complained to
Daly, who then discussed the matter with Fritz and informed him
that he had made a mistake in writing the letter. Fritz defended
himself, stating that the record in the case supported his
opinions and actions.
Things deteriorated from here as Fritz engaged in a series
of communications with Daly and other superiors in which he
continued to defend his actions, refused to take corrective
action, and charged Daly with improper interference with his job
performance, favoritism toward Burns (who worked for Daly's
former law firm), and corruption. Fritz persisted with these
efforts at his disciplinary hearing, where he told his
administrative superiors why he should not be disciplined and
claimed that it was Daly who was acting improperly.
Fritz argued in his first lawsuit that the October 4th
letter, his attempts to defend himself, and his counter
accusations of corruption were all statements and acts protected
by the First Amendment. I concluded in that case that the
writing of the letter and the back-and-forth communications that
followed were not protected by the First Amendment under Garcetti
v. Ceballos, 126 S.Ct. 1951, 1958 (2006) because Fritz made the
- 3 - communications at issue pursuant to his official duties and not
as a citizen on matters of public concern. Fritz I, 2007 DNH 125
at *12-14.
B. The Current Action
Fritz makes similar allegations in the instant suit,
claiming that Daly and Brown retaliated against him in violation
of the First Amendment. He contends that the defendants
committed a series of retaliatory acts against him after he
engaged in protected acts and statements. Fritz alleges that
these retaliatory acts began immediately after he filed the
previous lawsuit on May 22, 2006 and culminated in his
termination on December 1, 2006.
1. Private Investigator
According to Fritz's complaint, on June 6, 2006, defendants
sent a private investigator to threaten, intimidate, and deter
his Attorney, Pierre Rumpf, from representing him in Fritz I .
Compl. at 21-33. The complaint states that the investigator
did this by going to Rumpf's law office, asking him questions
about Fritz, and asking other area attorneys about Rumpf and
Fritz.
- 4 - 2. Co-Worker Relationships
Fritz also alleges that defendants poisoned his
relationships with co-workers in response to his filing of Fritz
X- I d . at 34-43. Specifically, he states that defendants
schemed with one of Fritz's co-workers to manufacture phony and
frivolous harassment allegations against him in August 2006. Id.
According to the complaint, a co-worker sent Fritz an e-mail,
copied to the commission's assistant director, in which she
threatened to complain to defendants if Fritz sent her another e-
mail with "attitude." I d . at 5 36. The complaint alleges that
the co-worker's e-mail "was a charade as it was prepared with
assistance from defendant Brown and/or defendant Daly." I d . at 5
38. Additionally, Fritz's complaint states that he was friendly
with the co-worker before he filed his initial lawsuit and that
the co-worker had received her annual review shortly after
sending the threatening e-mail. I d . at 40-43.
3. Denied Access To Non-Public Commission Meeting
Next, Fritz alleges that the defendants retaliated against
him for asserting his right to be present at a non-public session
of a Commission meeting. Compl. at 44-53. On November 2,
2006, Fritz attended a regularly scheduled Commission meeting.
- 5 - I d . at 5 44. The agenda for the meeting included a non-public
session regarding discipline of an employee. Id. Believing that
session to be about him, Fritz sought to attend the meeting and
have it opened up to the public pursuant to the state's open
meeting law, N.H. Rev. Stat. Ann. § 91-A:3. Despite his attempts
to explain why he believed he could open the meeting, defendants
denied him access to the meeting, called the police to remove him
from the premises, and conducted the meeting as a private
session. I d . at 47-53.
4. Whistle-Blower Complaint. Notice of Contemplation of Dismissal, and Notice of Dismissal
At 8:46 a.m. on November 13, 2006, Fritz mailed a state
whistle-blower complaint to the New Hampshire Department of
Labor, the substance of which was similar to his initial First
Amendment lawsuit. Compl. at 5 54. A few hours later, "around
midday on November 13," Fritz signed a receipt for a Notice of
Contemplation of Dismissal, dated November 10, 2006, which the
defendants had sent by certified mail. Pl.'s Objection
Memorandum at 10; Def.'s Motion to Dismiss, Exhibit A.
The Notice states that "the Commission is considering
dismissing you from employment pursuant to Per 1002.08(b)(16),
- 6 - willful release of confidential information in violation of
Commission Law, rules, and policy, and Per 1002.08(b)(13),
persistent refusal to follow the legitimate directives of a
superior." Def.'s Motion to Dismiss, Exhibit A. The Notice
provides a list of sixteen documents, each attached to the
Notice, which the Commission describes as "information which we
believe would support a decision to dismiss you from employment."
Id. Included in this list is the complaint in Fritz I and its
associated attachments, and the " [p]hotograph on your office wall
. . . showing your display of a framed order from the U.S.
District Court for the District of N.H., denying defendants'
Motion to Seal the record in the matter of Fritz v. Daly e t . a l ."
Id.
Defendants terminated Fritz following a November 28, 2006
disciplinary meeting at which Fritz presented written rebuttal
but declined any discussion. The Commission's December 1, 2006
Notice of Termination reiterates and incorporates the November
10, 2006 Notice of Contemplation of Dismissal and associated
attachments. Def.'s Motion to Dismiss, Exhibit B.
- 7 - 5. Summary
Fritz alleges that defendants violated his First Amendment
rights by retaliating against him for: (1) filing the prior
lawsuit and opposing motions to seal and redact portions of
pleadings in the prior lawsuit, (2) displaying on his office wall
a copy of this court's Order denying the motions to seal, (3)
asserting a state statutory right to be present at a non-public
Commission meeting, and (4) filing a whistle-blower complaint
with the New Hampshire Department of Labor.
Fritz alleges that the defendants retaliated against him in
response to these allegedly protected acts, by (1) sending a
private investigator to intimidate him and thwart his attempt to
obtain legal representation in Fritz I, (2) scheming with one of
Fritz's co-workers to manufacture phony and frivolous harassment
allegations against him, (3) refusing Fritz access to a non
public session of a Commission meeting, and (4) terminating his
employment.
II. STANDARD OF REVIEW
When ruling on a motion to dismiss under Fed. R. Civ. P.
12(b)(6), I must "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., Inc., 284 F.3d 1, 6 (1st Cir. 2002). The issue is not
"what the plaintiff is required ultimately to prove in order to
prevail on her claim, but rather what she is required to plead in
order to be permitted to develop her case for eventual
adjudication on the merits." Gorski v. N.H. Dep't of Corrs., 290
F.3d 466, 472 (1st Cir. 2002) (emphasis in original).
I must consider the complaint, documents annexed to it, and
other materials fairly incorporated within it when ruling on the
motion. Rodi v. S. New Eng. Sch. of Law. 389 F.3d 5, 12 (1st
Cir. 2004). Additionally, I may consider matters that are
susceptible to judicial notice. Id. This includes matters of
public record such as documents from prior court proceedings,
Boaten v. InterAmerican Univ.. Inc.. 210 F.3d 56, 60 (1st Cir.
2000), and the "entirety of a document integral to or explicitly
relied upon in the complaint, even though not attached to the
complaint." Clorox Co. P.R. v. Proctor & Gamble Commercial Co..
228 F.3d 24, 32 (1st Cir. 2000). I may consider such extra
- 9 - pleading materials without converting a motion to dismiss to one
for summary judgment. Id.
Ill. ANALYSIS
Defendants challenge Fritz's First Amendment claims by
arguing that the acts and statements on which the claims are
based are not protected by the First Amendment. Alternatively,
they argue that they are entitled to qualified immunity.
To survive a motion to dismiss a First Amendment retaliation
claim, a public employee must allege that he faced retaliation
for speaking as a citizen on a matter of public concern.
Garcetti. 126 S.Ct. at 1957-60. After satisfying this
requirement, he must also allege that (1) the First Amendment
interests of the plaintiff and the public outweigh the
government's interest in functioning efficiently, and (2) that
his protected speech was a substantial or motivating factor in
the adverse action against him. Jordan v. Carter. 428 F.3d 67,
72 (1st Cir. 2005) (describing the so-called "Pickering balancing
test," derived, respectively, from the Supreme Court's decisions
in Connick v. Myers. 461 U.S. 138 (1983); M t . Healthy City Sch.
Dist. Bd. of Ed u c . v. Dovle, 429 U.S. 274 (1977); and Pickering
- 10 - v . B d . of Ed u c ., 391 U.S. 563 (1968)).
In cases where a plaintiff's First Amendment rights collide
with the companion legal doctrine of qualified immunity, I begin
with the question of whether the facts as alleged make out a
violation of the First Amendment. See Dirrane v. Brookline
Police Dep't. 315 F.3d 65, 70 (1st Cir. 2002) (citing Saucier v.
Katz, 533 U.S. 194, 201 (2001) . If I determine that no such
violation occurred, I need not continue the qualified immunity
analysis because plaintiff's claim fails as a matter of law and
will be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). See i d .
at 69-70. If, however, plaintiff's complaint pleads a
constitutional violation, I must then determine whether
a similarly situated reasonable official would have known at the
time that he had violated a clearly established right. Saucier,
533 U.S. at 202; Pagan v. Calderon. 448 F.3d 16, 31 (1st Cir.
2006). If the answer is yes, then the defendants are not
entitled to qualified immunity.
A. Are Fritz's Statements And Acts Protected?
Defendants argue that Fritz cannot satisfy the first element
of his claim because he does not have a First Amendment right to
protection from retaliation either for filing the complaint in
- 11 - Fritz I or for opposing defendants' motion to seal in that
action.1 This argument appears to be based on the mistaken
premise that the First Amendment does not protect a government
employee from retaliation for the act of filing a lawsuit unless
the lawsuit asserts viable First Amendment claims.2
In addition to protecting speech, the First Amendment
guarantees every citizen the right "to petition the Government
for redress of grievances." U.S. Const, amend. I. The right to
access the courts is an established aspect of the right to
petition the government. Bill Johnson's Rest.. Inc. v. NLRB, 461
U.S. 731, 741 (1983); Fabiano v. Hopkins. 352 F.3d 447, 453 (1st
Cir. 2003), and "[a]n individual does not lose this right because
she is employed by the government." Boyle v. Burke. 925 F.2d
497, 505 (1st Cir. 1991) (citing Connick, 461 U.S. at 140).
A public employee's right to petition the government, however, is
1 Fritz has pleaded sufficient facts to support the remaining elements of his First Amendment claim. Whether the evidence will ultimately support his allegations remains to be seen.
2 As support for this proposition, defendants cite Ruotolo v. Citv of New York. No. 03 Civ. 5045 (SHS), 2006 WL 2033662, * at 5 (S.D.N.Y. July 19, 2006). To the extent that my reasoning and conclusions are inconsistent with Ruotolo. I simply find it unpersuasive.
- 12 - subject to the same constitutional analysis as his right to free
speech. Wavte v. United States. 470 U.S. 598, 610 n.ll (1985).
Thus, after Garcetti. an employee's decision to file a lawsuit is
protected by the First Amendment only if he was acting as a
citizen when he filed the lawsuit and the lawsuit addressed a
matter of public concern. D'Anqelo v. Sch. Bd. of Polk County.
Fla., ___ F .3d ___ , 2007 WL 2189099 *at 7-8 (11th Cir. 2007). If
both requirements are satisfied, the act of filing a lawsuit is
protected by the First Amendment even if the lawsuit is later
dismissed and regardless of whether the employee was acting as a
citizen when he engaged in the conduct on which the lawsuit was
based.
I determined in Fritz I that Fritz did not engage in
protected speech because he was speaking as an employee rather
than as a citizen when he engaged in the speech for which he was
seeking First Amendment protection. Here, the situation is quite
different. Fritz did not file his lawsuit as part of his job.
Moreover, although Fritz sought to vindicate his employment
rights by filing the lawsuit, he was not acting pursuant to his
official duties, nor was he exploiting his employment position in
doing so. Rather, Fritz asserted his protected constitutional
- 13 - right as a citizen to petition the government for redress of a
grievance.
Furthermore, although Fritz's grievance addressed a
combination of both public and private matters, it plainly
included substantial allegations of favoritism, improper ex parte
communications, unconstitutional discipline, and corruption among
his superiors at the Human Rights Commission. These allegations
were not strictly limited to a personal dispute. Rather, they
"directly implicated a topic of inherent concern to the community
-- official misconduct by . . . [a public] official. O'Connor v.
Steeves. 994 F.2d 905, 915 (1st Cir. 1993). Accordingly, Fritz's
current lawsuit pleads sufficient facts to support his assertion
that he was acting as a citizen on a matter of public concern
when he filed Fritz 1 .3
2. Displaying Court Order On Government Office Wall
Defendants next argue that Fritz's act of displaying on his
government office wall a court order denying a motion to seal is
3 In light of my conclusion that the filing of the first lawsuit was a protected act because Fritz filed it as a citizen on matters of public concern, I also conclude that his objections to motions to seal in that case are protected acts because they were merely actions taken pursuant to the underlying action.
- 14 - not a protected act, but rather "an act of childish defiance
intended purely to escalate plaintiff's personal dispute with his
supervisors." Def.'s Memorandum at 8. Fritz contends that it
was a protected speech act because "members of the public were
able to see and observe the document." Pl.'s Objection
Memorandum at 11. I disagree.
It is apparent from the complaint that Fritz was speaking as
an employee rather than a citizen when he posted the court order.
At the time, Fritz was engaged in a struggle with his employers
over the nature of his job responsibilities. The posting of the
court order was yet another act that Fritz undertook to support
his view that his employers were improperly attempting to prevent
him from doing his job. Thus, it was a communication that Fritz
undertook as an employee rather than a citizen and it is not
entitled to First Amendment protection.
Fritz's contention that members of the public could see the
posted order does nothing to save him. Unlike speech made as a
citizen, such as posting a statement on the exterior of one's
home, printing a letter to the editor in a newspaper criticizing
government action, or filing a lawsuit alleging corruption in
government office, here, Fritz was merely interacting with his
- 15 - superiors and coworkers within the confines of his office.
3. Access To Non-Public Commission Meeting
Fritz also claims First Amendment protection for asserting a
state statutory right to be present at a non-public commission
meeting. He cites no legal authority, however, to support his
contention that a government employee has a First Amendment right
to gain access to a nonpublic session of an agency meeting.
Although N.H. Rev. Stat. Ann. § 91-A:3 contemplates certain
instances in which a public employee may cause a disciplinary
meeting to be open to the public, that right is protected by the
state law which creates it, i d . at § 91-A:7, and not the First
Amendment. If Fritz felt that he had a right to be present
during the nonpublic session under state law, he should have
sought redress in state court as provided in N.H. Rev. Stat. Ann.
§ 91-A:7.
4. Filing A Whistle-Blower Complaint
Even if I assume that filing a state whistle-blower claim
with the New Hampshire Department of Labor is an act protected by
the First Amendment, Fritz has failed to state facts sufficient
to support a reasonable inference that defendants based their
decision to discipline him on the filing of the whistle-blower
- 16 - claim. The relevant facts that bear on this issue are as
follows: Fritz mailed his whistle-blower complaint to the
Department of Labor from the Concord Post Office on November 13,
2006, with a postmark time of 8:46 a.m. Pl.'s Objection
Memorandum at 10. A few hours later, "around midday on November
13," Fritz received the Notice, dated November 10, 2006, which
the defendants had sent by certified mail. Id. Fritz does not
assert that he gave defendants adequate notice of his intention
to file a whistle-blower complaint. Fritz thus contends that in
the few hours that passed between the 8:46 a.m. mailing of his
whistle-blower complaint and his "midday" receipt of the Notice,
the defendants (1) learned that he had filed the complaint, (2)
prepared the Notice, and (3) mailed the Notice in a manner
sufficient to (4) permit certified delivery within a matter of
hours. Even construing these facts in the light most favorable
to Fritz, I simply cannot conclude that this is a reasonable
inference.
B. Are Defendants Entitled to Qualified Immunity?
Having concluding that Fritz has properly pleaded a
violation of his First Amendment right to petition, I must next
consider whether a similarly situated reasonable official would
- 17 - have known at the time that he had violated a clearly established
right.
The First Circuit has determined that a "public employee's
right to petition the government with respect to matters of
public concern has been clearly established since Connick."
Boyle, 925 F.2d at 505. Defendants nevertheless argue that they
are entitled to qualified immunity because a similarly situated
reasonable official would not have known that firing Fritz for
disclosing a charging party's confidential information in a prior
lawsuit and gross insubordination violated his First Amendment
right to petition. See Wagner v. Citv of Holyoke. 404 F.3d 504,
508-09 (1st Cir. 2005) .
Defendants' argument on this point turns on disputed facts.
According to Fritz, the defendants' purported reasons for firing
him (confidentiality and insubordination) were merely pretext,
and that they actually fired him as retaliation for filing his
initial lawsuit. Construing the facts in the light most
favorable to Fritz, as I must do at this stage, I conclude that a
reasonable official would have known that terminating a public
employee for filing a First Amendment retaliation lawsuit
alleging matters of public concern violated his clearly
- 18 - established right to do so. Accordingly, the defendants are not
entitled to qualified immunity based on the present record.4
IV. CONCLUSION
For the reasons stated above, defendants' motion to dismiss
(Doc. No. 9) is granted in part and denied in part.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
August 29, 200 7
cc: Pierre Rumpf, Esq. Paula Werme, Esq. Nancy J. Smith, Esq.
4 Although I rule against defendants on qualified immunity grounds today, I am willing to reexamine the issue at the summary judgment stage if the evidence does not support Fritz's allegations.
- 19 -