LaForge v. Howard, Town of Hooksett CV-00-437-JD 04/30/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Patrick LaForge
v. Civil No. 00-437-JD Opinion No. 2002 DNH 088 Michael J. Howard, in his Individual and Official Capacities, and the Town of Hooksett
O R D E R
The plaintiff, Patrick LaForge, brings an action against his
former employer, the Town of Hooksett Fire Department, and Fire
Chief Michael J. Howard, arising from the circumstances
surrounding his resignation from the Hooksett Fire Department.
LaForge brings two claims under 42 U.S.C. § 1983, alleging that
the defendants violated his constitutional rights under the First
and Fourteenth Amendments, and four state claims, alleging
defamation, intentional interference with contractual relations,
malicious prosecution, and wrongful termination. The defendants
move for summary judgment. LaForge objects.
Standard of Review
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).
" 'A dispute is genuine if the evidence about the fact is such
that a reasonable jury could resolve the point in favor of the
non-moving party. A fact is material if it carries with it the
potential to affect the outcome of the suit under the applicable
law.'" Santiago-Ramos v. Centennial P.R. Wireless Corp., 217
F.3d 46, 52 (1st Cir. 2000), cruoting Sanchez v. Alvarado, 101
F .3d 223, 227 (1st Cir. 1996).
When considering a motion for summary judgment, the court
views the evidence in the light most favorable to the nonmoving
party. See Davila-Perez v. Lockheed Martin Corp., 202 F.3d 464,
466 (1st Cir. 2000). The moving party must demonstrate the
absence of genuine issues of material fact in the record. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the
motion is properly supported, the nonmoving party then must set
forth facts showing that a genuine issue of material fact exists.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
Background
Patrick LaForge was employed by the Hooksett Fire Department
("HFD") in 1992 as a part-time firefighter and became a full-time
employee in 1993. In 1998 LaForge was certified as a paramedic
and began working in that capacity for the HFD. After earning
2 his paramedic certification, LaForge began seeking employment
elsewhere, to enhance his professional development. At that time
the HFD emergency service was supplemented by Tri-Town Volunteer
Emergency Ambulance Service ("Tri-Town"), which provided advanced
life support services. Both the HFD and Tri-Town responded to
emergency calls.
In June of 1999, LaForge applied for a position with the
Concord Fire Department ("CFD"). As part of the application
process, LaForge authorized the CFD to conduct a background
check. The CFD extended a verbal offer of employment to LaForge
and the CFD Division Commander, Christopher Pope, wrote LaForge
on July 30, confirming the offer. The letter stated: "This will
serve to confirm our verbal employment offer to you for the
position of firefighter/paramedic and your acceptance of the
same. . . . Please report to our headquarters, 35 Green St., at
0800 hours, Friday, August 13, 1999."
LaForge tendered his resignation to the HFD on August 2 and
gave notice that his last shift would be August 14, 1999.
LaForge submitted his letter of resignation to Chief Howard, who
initialed it as received, and LaForge, Chief Howard, and Deputy
Chief Gary Lambert discussed LaForge's reasons for leaving the
3 HFD.1 At that time. Chief Howard had been with the HFD for two
months. During this meeting. Chief Howard inquired into
LaForge's reasons for leaving the HFD. LaForge indicated that he
felt that ranking officers demonstrated preferential treatment
when determining shift assignments and other departmental
matters. He also expressed his opposition to the suggestion that
the HFD might assume full EMS ambulance service for the Town of
Hooksett ("Hooksett"), independent of Tri-Town. Although
Hooksett had not yet established a formal proposal for a town-
operated ambulance service, the idea had been discussed for some
time. LaForge shared with Chief Howard his concerns that the HFD
was not prepared to effectively handle full EMS services in the
community. Lambert expressed his disagreement with LaForge's
view.
LaForge returned home and discussed the meeting and his
concerns about HFD assuming ambulance services with his
girlfriend, Anita Lombardo, an employee of Tri-Town. Lombardo
suggested he bring specific examples to Chief Howard to
illustrate his concerns. On August 5, Lombardo told LaForge
1 Chief Howard testifies in his deposition that he believes he submitted LaForge's resignation to the town administrator's office the next day, August 3, 1999. Nothing in the record indicates when a resignation becomes official, however the parties do not dispute that the resignation LaForge tendered on August 2 was binding.
4 about an emergency call by the HFD that was not conducted
according to procedure. LaForge and Lombardo agreed that she
would attempt to secure a copy of the "run form" for that call
(run forms report the actions taken on emergency calls). Anita
went through the Tri-Town chain of command and supplied LaForge
with a copy of the run form for the call. The form showed that
the HFD member who participated in the call and filled out the
form failed to do so according to procedure. In some places, the
form had been marked with black, although the parties dispute the
effectiveness of that attempted redaction.2
On August 6, LaForge met with his supervising officer.
Lieutenant Mark Hurley, and showed him the run form. L t . Hurley
acknowledged that it was not filled out correctly and agreed to
go with LaForge to show it to Chief Howard. When L t . Hurley and
LaForge stopped by Chief Howard's office that day, however. Chief
Howard was not present. L t . Hurley did not give LaForge express
permission to speak with Chief Howard on his own.
Later that day LaForge encountered Chief Howard outside Fire
Station One. LaForge approached Chief Howard and asked if he
could speak with him. Although Chief Howard did not answer, he
2 A copy of the run form, submitted by LaForge, shows blackened areas over portions of the form. The patient's name is not visible on the copy of the form that is in the record.
5 stopped walking and began listening to LaForge. LaForge showed
Chief Howard the run form and expressed his concerns about HFD's
ability to assume responsibility for EMS ambulance services.
According to LaForge, he spoke for about eight minutes. Chief
Howard states the discussion only lasted about ninety seconds.
Chief Howard also affirms that confidential patient information
was visible on the run form despite the attempted redaction.
Chief Howard did not respond to LaForge's comments. He became
angry, got in his car, and left the station.
Chief Howard reflected on the encounter over the weekend,
and then scheduled a meeting with L t . Hurley for Monday, August
9. He insisted that L t . Hurley bring union representation.
Chief Howard discussed with L t . Hurley LaForge's use of the run
form, which Chief Howard believed breached patient
confidentiality and was obtained improperly. Chief Howard
learned from L t . Hurley that LaForge had approached Chief Howard
without L t . Hurley's permission, which constituted a breach of
HFD's chain of command. Chief Howard contacted Town
Administrator Mike Farrell to report the events and arranged a
meeting with LaForge and Lt. Hurley for Friday, August 13, to
discuss the situation. Although Chief Howard expected that the
situation would probably require discipline, he affirms he had
made no decision to terminate LaForge. On August 10 Chief Howard
6 contacted the New Hampshire Division of Emergency Medical
Services ("EMS Bureau") to clarify his understanding of the state
laws governing EMS services.
At some point following submission of LaForge's resignation
to the town administrator. Chief Howard became aware that
LaForge's resignation, which would take effect August 14, did not
provide fourteen days' notice as required by the firefighters'
collective bargaining agreement. Insufficient notice would
result in forfeiture of some of LaForge's benefits, such as
accrued vacation pay. In an August 6 phone call and an August 10
letter. Chief Howard notified LaForge that his notice was
insufficient to collect full benefits. However, Chief Howard
told LaForge that he believed they could work out the start date
with the CFD, so that LaForge could collect his full benefits.
On August 11 Chief Howard met with LaForge and suggested
that LaForge resubmit his resignation with a termination date of
August 17. Chief Howard told LaForge that he had spoken with
someone at the New Hampshire Retirement System, and learned that
a revised resignation effective August 17 would remedy the notice
deficiency so that LaForge would collect his benefits. Chief
Howard said that the CFD was agreeable to modifying LaForge's
orientation schedule to accommodate his delayed start date, and
he advised LaForge to finalize this arrangement with the CFD
7 immediately. LaForge met with Commander Pope at the CFD on the
morning of August 11 to discuss his start date arrangements.
Commander Pope agreed to the revised start date of August 17.
LaForge, however, never submitted a revised resignation to the
town.
After his meeting with LaForge on August 11, Commander Pope
contacted Chief Howard to confirm the arrangements, and they
arranged a personal meeting for that afternoon. It is disputed
in the record who initiated the meeting and for what purpose,
although both agree that they expected to discuss issues
involving LaForge. At the meeting. Chief Howard revealed
information about LaForge that the CFD had not known previously,
including the run form incident and Chief Howard's inquiry to the
EMS Bureau.3 During the meeting Commander Pope and Chief Howard
discussed these incidents and Chief Howard told Commander Pope
that he believed LaForge had gone outside the chain of command
and had breached patient confidentiality. According to Commander
Pope, Chief Howard told him that he planned to discipline, and
possibly terminate, LaForge on August 13. Chief Howard disputes
that statement.
Commander Pope discussed LaForge's complete file with CFD
3 Also present at the meeting were Deputy Chief Lambert and CFD Bureau Commander Jim Clow. Chief Dionne and other CFD officers later that evening, and they
decided to postpone hiring LaForge. Commander Pope phoned
LaForge and told him that the CFD was postponing his hiring and
referring the matter to their personnel department, and advised
him to consider withdrawing his resignation from the HFD. On
August 12, Commander Pope sent LaForge a letter stating that
based on information regarding his background which they had
recently discovered, they were postponing his offer of employment
until the issues were resolved to their satisfaction. LaForge
wrote to the town administrator on August 12 asking to withdraw
his resignation, noting that he had turned down a prior job offer
due to family reasons.
Chief Howard met with Farrell, his assistant Liz Dinwoodie,
and HFD Deputy Chief Gary Lambert on August 12. LaForge was not
given notice of the meeting. At this meeting, it was determined
that LaForge would be "relieved of duty," with pay, for his
remaining shifts with the HFD.4 The defendants state that the
leave was not a disciplinary measure. Farrell explained that
LaForge "was raising such a ruckus in the department [over
4 At times throughout his deposition testimony, Farrell uses the term "administrative leave" to describe the action taken to relieve LaForge of duty. However, neither the Hooksett personnel plan nor the HFD collective bargaining agreement provides for "administrative leave" as a personnel action, and Farrell does not define his use of the term.
9 Hooksett's readiness to take on ambulance service] that why go
through the agony for two more days? Just pay him and be done
with it." Farrell also decided not to accept LaForge's
withdrawal of his resignation, but instead to "let him go to
Concord and be done with it." Chief Howard attended the meeting,
but he affirms that the decision to relieve LaForge of duty had
been made by Farrell prior to the meeting. Farrell states that
the group as a whole decided what action to take.
When LaForge arrived at the station for his scheduled shift
on August 13, he was met by L t . Hurley, Chief Howard, and Captain
Landry. Chief Howard told LaForge that his withdrawal of
resignation had been denied and that he was relived of duty
effective that morning, upon a directive from the town
administrator. He told LaForge that his recent actions "placed
the town at great risk and liability and that he would have no
access to any HFD facilities upon leaving, or any contact with
any on-duty HFD personnel." (Howard Aff. at p. 207, line 11-16) .
LaForge was instructed to collect his gear and return it to
Captain Landry. LaForge complied and left the premises.
A letter dated August 12 was sent to LaForge restating Chief
Howard's comments. The letter was signed by Chief Howard and
Farrell. The letter, which reads as if written by Chief Howard,
states, "This directive was carried out by self to you upon
10 notice from the Town Administrator." The letter also states that
LaForge would not be paid his compensation benefits because he
had failed to submit a revised resignation as instructed.5 The
CFD revoked LaForge's employment offer on September 24, 1999.
Chief Howard filed a formal complaint with the EMS Bureau on
September 7, 1999, alleging that LaForge, Lombardo, and Tri-Town
had violated state law in connection with their conduct
surrounding the run form incident. In response to Chief Howard's
complaint the EMS Bureau conducted a full investigation. On
December 7, 1999, the EMS Bureau issued its findings that as to
each of Chief Howard's complaints, "no violation of the statute
is apparent."
LaForge brought this action pursuant to 42 U.S.C. § 1983 on
September 13, 2000. In Count I, he alleges that Chief Howard and
Hooksett terminated him and took adverse employment action
against him in retaliation for his exercise of First Amendment
free speech rights regarding the ambulance issue. He also
alleges, in Count II, that Chief Howard and Hooksett deprived him
of a liberty interest in violation of his procedural and
substantive due process rights under the Fourteenth Amendment.
Further, LaForge brings four state law claims against Chief
5 LaForge filed a union grievance claiming his vacation pay. This was denied.
11 Howard and Hooksett. In Count III, he alleges that Chief Howard
defamed him by publishing false and defamatory information about
him to the CFD. In Count IV, LaForge brings a claim of
intentional interference with contractual relations, alleging
that Chief Howard interfered with his contractual relations with
the CFD, which resulted in the CFD's reconsidering and eventually
revoking LaForge's employment offer. In Count V, LaForge brings
a claim of malicious prosecution, alleging that Chief Howard
filed a complaint about him with the state EMS Bureau without
probable cause. And in Count VI, he brings a claim of wrongful
termination, alleging that the town terminated him in retaliation
for expressing his opinion on an issue of public policy.
Discussion
The defendants move for summary judgment on all counts.
They argue that no genuine issues of material fact exist and they
are entitled to judgment on the merits in their favor as a matter
of law. In the alternative, they argue that Chief Howard is
entitled to immunity from the claims against him as an
individual, and that Hooksett did not violate LaForge's rights,
as alleged in the § 1983 claims, and is entitled to discretionary
function immunity as to the state claims.
As a preliminary matter, the defendants seek dismissal of
12 any claims brought against Chief Howard in his official capacity
as chief of the HFD, asserting that those claims are actually
claims against the town, and since Hooksett is a named defendant,
those claims are duplicative. "[0]fficial capacity suits
generally represent only another way of pleading an action
against an entity of which an officer is an agent." Monell v.
Dep't of Social Servs. of N.Y., 436 U.S. 658, 690 n.55 (1978).
"Suits brought against parties in their official capacity are
treated as suits against the municipality." Bryant v. Noether,
163 F. Supp. 2d 98, 104 n.2 (D.N.H. 2001), citing Brandon v.
Holt, 469 U.S. 464, 471-72 (1985). Here, Chief Howard is an
official of Hooksett, and the town is a named defendant. Claims
against Chief Howard in his official capacity would be
duplicative of the claims against Hooksett. To the extent that
LaForge brings claims against Chief Howard in his official
capacity, those claims are dismissed.
I. LaForge's § 1983 Claims
LaForge asserts claims for damages pursuant to 42 U.S.C. §
1983.6 In Count I of his amended complaint, LaForge alleges that
6 Section 1983 provides: "Every person who, under the color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities
13 the defendants violated his rights under the First Amendment. In
Count II LaForge alleges that the defendants violated his rights
to procedural and substantive due process under the Fourteenth
Amendment. The defendants move for summary judgment on all
counts. LaForge objects.
A. First Amendment Claim
The defendants move for summary judgment on the merits of
LaForge's First Amendment claim, on the ground that relieving him
of duty, with pay, and denying his request to rescind his
resignation did not constitute adverse employment action.
Alternatively, Chief Howard contends that LaForge's protected
expression was not a substantial or motivating factor for any
adverse action taken. Because the record does not support
LaForge's First Amendment retaliation claim, the defendants
argue, no basis exists for liability on the part of Hooksett.
LaForge, a public employee, must meet a three-pronged test
to establish a claim for infringement of his First Amendment
right. See Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) .
LaForge must show (1) that his speech on the matter of the HFD
ambulance service was a matter of public concern; (2) that his
secured by the Constitution and laws, shall be liable to the party injured in an action at law."
14 interest and the public's interest in free discourse on that
matter outweighed the countervailing governmental interest in
promoting efficient public service; and (3) that his protected
expression was a motivating or substantial factor in an adverse
employment action. See M t . Healthy City Sch. Bd. of Educ. v.
Dovle, 429 U.S. 284, 287 (1977); Padilla-Garcia v. Guillermo
Rodriquez, 212 F.3d 69, 78 (1st Cir. 2000); Tang v. R.I. Dep't of
Elderly Affairs, 163 F.3d 7, 12 (1st Cir. 1998). The defendants
contend that LaForge has not met the third prong of the test,
because he was not terminated, and he suffered no other adverse
action.7
An adverse employment action need not rise to the level of
termination to be actionable. See Rutan v. Republican Party of
111., 497 U.S. 62, 75 (1990). Promotions, transfers, failure to
recall after layoffs, and other "deprivations less harsh than
dismissal" may constitute adverse employment actions. Id.
However, "not everything that makes an employee unhappy is an
7 In their motion for summary judgment the defendants concede that LaForge was engaged in protected expression, and they do not challenge the balancing of interests element. In their reply to LaForge's objection to summary judgment, however, the defendants recede from their concession and argue that LaForge's expression was not protected. LaForge moved to strike the defendants' reply. In a separate order that will issue on this date, the court has granted LaForge's motion in part and strikes the defendants' protected expression argument as raised in its reply.
15 actionable adverse action." Bechtel v. City of Belton, 250 F.3d
1157, 1162 (8th Cir. 2001) (quotation omitted); see also Blackie
v. State of Maine, 75 F.3d 716, 725 (1st Cir. 1996); Welsh v.
Derwinski, 14 F.3d 85, 86 (1st Cir. 1994). In a retaliation
case, the plaintiff must show that the employer took a materially
adverse employment action against him. Blackie, 75 F.3d at 725;
Larou v. Ridlon, 98 F.3d 659, 663 n.7 (1st Cir. 1996) (applying
Blackie to § 1983 claim).
"Determining whether an action is materially adverse
necessarily requires a case-by-case inquiry." Welsh, 14 F.3d at
86. "Typically, the employer must either (1) take something of
consequence from the employee, say, by discharging or demoting
her, reducing her salary, or divesting her of significant
responsibilities, or (2) withhold from the employee an
accouterment of the employment relationship, say, by failing to
follow a customary practice of considering her for promotion
after a particular period of service." Blackie, 75 F.3d at 725-
26 (internal citations omitted); see also Simas v. First
Citizens' Fed. Credit Union, 170 F.3d 37, 50-51 (1st Cir. 1999);
Meanev v. Dever, 170 F. Supp. 2d 46, 56 (D. Mass 2001); Siaca v.
Autoridad de Acuductos v Alcantarillados de P.R., 160 F. Supp. 2d
188, 202 (D.P.R. 2001) (finding adverse employment action for §
1983 First Amendment claim where plaintiff was transferred and
16 denied promotions). "Most cases involving a retaliation claim
are based on an employment action which has an adverse impact on
the employee, i.e., discharge, demotion, or failure to promote."8
Connell v. Bank of Boston, 924 F.2d 1169, 1179 (1st Cir. 1991),
cert den'd, 501 U.S. 1218 (1991) (finding that employee
discharged two weeks prior to notified date of discharge but paid
for full four weeks did not state an adverse employment action
for ADEA claim).
LaForge was relieved of duty, with pay, for the two days
remaining of his employment before his resignation became
effective on August 14. LaForge was not deprived of pay,
benefits, or any other accouterment of employment discernable
from the record.9 Although LaForge was divested of his normal
job responsibilities for his last two shifts, he fails to show
how he was materially adversely affected by not working those
shifts. Since his employment ended on August 14, he was not in a
8Although Connell involved an ADEA claim and not a § 1983 claim, the First Circuit has held that "the fundamental meaning of adverse employment action should remain constant regardless of the particular enabling statute, given their similar anti- discriminatory purpose." Larou. 98 F.3d at 662 n.6 (applying ADEA adverse employment action analysis in Connell to a § 1983 claim).
9 LaForge's ineligibility to receive his accrued vacation and sick pay was a result of his own failure to resubmit his resignation effective August 17, instead of August 14.
17 position to be adversely effected by future promotions,
transfers, seniority privileges, or other work-related actions.
See Connell, 924 F.2d at 1179-80. LaForge has not shown a
genuine dispute of material fact as to whether relieving him of
duty with pay constituted an adverse employment action for the
purpose of his § 1983 claim.
LaForge also alleges that Hooksett's denial of his request
to rescind his resignation constitutes an adverse employment
action. "[U]nder certain circumstances an employer's inaction
can operate to deprive an employee of a privilege of employment
that an employee had reason to anticipate he would receive; in
those situations, the deprivation constitutes an adverse
employment action." Blackie. 75 F.3d at 726. A plaintiff must
have a reasonable expectation that an employer will take a
particular action before the employer's failure to do so may be
construed as an adverse employment action. Id.; see also Lynch
v. City of Boston, 180 F.3d 1, 12 (1st Cir. 1999) . A plaintiff's
conjecture that action will occur is not sufficient to establish
a reasonable expectation. See Larou, 14 F.3d at 663.
LaForge acknowledges that the decision to deny his request
to rescind his resignation was entirely within Hooksett's
discretion. Since LaForge's employment was ending pursuant to
the resignation he had submitted, he did not have a reasonable
18 expectation that he would be rehired. Cf. Lynch, 180 F.3d at 12;
Larou, 14 F.3d at 663. LaForge has not shown a factual dispute
that the decision to deny his request to rescind his resignation
deprived him of a privilege of employment he had a reasonable
expectation of receiving. See Blackie, 75 F.3d at 726.
Therefore, because no trialworthy issue remains as to whether
Hooksett's decision not to rescind his resignation was a
materially adverse employment action for the purpose of his §
1983 claim, the defendants are entitled to summary judgment on
that claim.
B. Fourteenth Amendment Due Process Claims
In Count II, LaForge brings claims under the procedural and
substantive due process clauses of the Fourteenth Amendment.
U.S. Const, amend. XIV, § 1. LaForge asserts that the defendants
violated his liberty interest by disseminating defamatory
information, which resulted in a stigma on LaForge that has
foreclosed his freedom to take advantage of other employment
opportunities. The defendants move for summary judgment on the
ground that LaForge was not deprived of a constitutionally
protected interest, and therefore was not entitled to procedural
19 or substantive due process.10
"To formulate a claim under the Due Process Clause of the
Fourteenth Amendment, a plaintiff must demonstrate that he or she
possesses a constitutionally protected interest in life, liberty
or property, and that state action has deprived him or her of
that interest." Metivier v. Town of Grafton, 148 F. Supp. 2d 98,
106 (D. Mass. 2001). "Fourteenth Amendment ''liberties' include
'the right of the individual . . . to engage in any of the common
occupations of life.'" Temple v. Inhabitants of the City of
Belfast, 3 0 F. Supp. 2d 60, 66 (D. Me. 1998), quoting B d . of
Regents of State Colleges v. Roth, 408 U.S. 564, 572 (1972). Due
process is invoked when a government employer makes severely
defamatory charges that might seriously damage one's standing in
the community or impose a stigma that significantly interferes
with the ability to find employment. Roth. 408 U.S. at 573.
Damage to one's reputation, alone, does not work a
deprivation of liberty protected by the Fourteenth Amendment.
See Paul v. Davis, 424 U.S. 693, 701 (1976) . For an injury to
reputation caused by a government official to rise to the level
of a constitutional liberty interest deprivation, it must be
10 The defendants also argue that LaForge does not have a protected property interest in his job with the HFD. LaForge does not claim a property interest.
20 coupled with a tangible change in the injured person's legal
status or rights. See Sieqert v. Gilley, 500 U.S. 226, 233
(1991); Paul, 424 U.S. at 709-11; Silva v. Worden, 130 F.3d 26,
32 (1st Cir. 1997). The First Circuit applies this doctrine (the
"stigma-plus" test) to determine if a deprivation of a liberty
interest has occurred. See Hawkins v. R.I. Lottery Comm'n, 238
F .3d 112, 115 (1st Cir. 2001).
Termination from a tenured or statutorily guaranteed
position frequently constitutes a tangible alteration in legal
status. Beitzell v. Jeffrey, 643 F.2d 870, 877 (1st Cir. 1981);
Rodriquez de Quinonez v. Perez, 596 F.2d 486, 489-90 (1st Cir.
1979) (recognizing liberty interest where plaintiff was removed
from statutory bank director position on ground of dishonesty);
cf. Lyons v. Sullivan. 602 F.2d 7, 11 (1st Cir. 1979) (holding
that allegedly defamed plaintiff could not maintain § 1983 action
because he was not terminated from his tenured position, but had
resigned). In contrast, a person is not deprived of his liberty
interest if he "simply is not rehired in one job but remains as
free as before to seek another." Roth, 408 U.S. at 575.
Here, LaForge was an at-will employee with no right to his
position, and his employment with the HFD ended by the terms of
his own resignation, not termination. Although the HFD did not
grant his request to rescind his resignation, a decision not to
21 rehire does not constitute a tangible alteration in legal status.
See Roth, 408 U.S. at 575. To the extent LaForge contends his
liberty interest was affected by the CFD's decision to postpone
and ultimately withdraw its employment offer, he must show that
action was a tangible alteration in legal status.
In some circumstances, a tangible alteration in legal status
can occur where a government employer's "false and defamatory
charges" are so serious they impose a stigma on the plaintiff
such that he is foreclosed from subsequent employment. See
Beitzell, 643 F.2d at 879; Orteqa-Rosario v. Avarado-Qrtiz, 917
F.2d 71, 74 (1st Cir. 1990); Cronin v. Town of Amesbury, 895 F.
Supp. 375, 383 (D. Mass. 1995). The stigma imposed by the
government employer's defamatory remarks must be serious, a
"badge of infamy" that would damage the employee's standing and
associations in his community. See Roth, 408 U.S. at 573 n.12
(collecting cases of liberty interest deprivation that involved
stigmatizing charges of "subversive activities"); Valmonte v.
Bane, 18 F.3d 992 (2d Cir. 1994) (holding that listing plaintiff
teacher on New York State register of child abuse was sufficient
stigma). Discussions about a plaintiff's credentials and
adequacy of job performance, however, "threaten no special
injury." Beitzell, 643 F.2d at 878 (stating that university
advisory board's recommendation against retaining plaintiff did
22 not injure plaintiff's reputation sufficiently to establish
deprivation of liberty interest); see also Sieqert, 500 U.S. at
234 (finding no deprivation of liberty interest where plaintiff
had resigned and former employer provided unfavorable information
to prospective employer in recommendation letter).
An employee's ability to secure subsequent employment is a
touchstone for the level of stigmatization incurred. See Orteqa-
Rosario , 917 F.2d at 74-75 (noting that because plaintiff was
able to obtain two other jobs, allegedly defamatory statements
contained in his personnel file did not impair his freedom to
seek employment); Temple, 30 F. Supp. 2d at 66. Another
indicator of stigma is whether the defamatory information was
disseminated to the public in a formal setting, such as at a
public meeting or to the press. See Silva, 130 F.3d at 32-33;
Beitzell, 643 F.2d at 879 (noting that charges made publicly are
more likely to interfere with employment opportunities).
LaForge argues that he was stigmatized by Chief Howard's
remarks that LaForge had improperly breached patient
confidentiality and broken the chain of command. LaForge claims
that as a result of Chief Howard's allegedly defamatory
statements and his complaint to the EMS Bureau, he was
stigmatized so that his ability to secure future employment was
impaired. The record demonstrates, however, that LaForge
23 prevailed over Chief Howard's complaint to the EMS Bureau and
retained his paramedic certification. He began employment with
Tri-Town as a paramedic the day he left the HFD; he secured a
full-time paramedic position with the Goffstown Fire Department a
few months later; and he continues to hold that position.
LaForge has successfully obtained employment in his field since
his departure from the HFD despite Chief Howard's complaint to
the EMS Bureau and his remarks to the CFD.
It is apparent from the record that the information
disseminated by Chief Howard to the CFD was a factor in the CFD's
decision to withdraw its offer, but remarks made in the context
of discussing a candidate for a job do not constitute the "badge
of infamy" required to invoke a liberty interest. See Beitzell,
643 F.2d at 878. Furthermore, there is nothing in the record
indicating that any allegedly defamatory information about
LaForge was disseminated to the public in a formal setting. In
sum, the record does not show that LaForge was foreclosed from
further employment as a firefighter/paramedic due to Chief
Howard's statements or actions. The comments made by Chief
Howard to the CFD when discussing LaForge's impending employment
do not rise to the stigmatizing level necessary to establish the
deprivation of a liberty interest.
LaForge has not shown a dispute of fact as to whether his
24 legal status or rights were altered due to Chief Howard's
allegedly defamatory remarks. Therefore, he has not met the
"stigma-plus" test required to show the deprivation of a liberty
interest. LaForge does not assert that he was deprived of any
other type of constitutionally protected interest. Summary
judgment is granted in favor of the defendants on LaForge's
Fourteenth Amendment procedural and substantive due process
claims.
C. Municipal Liability
_____ Hooksett moves for summary judgment on the ground that it is
not liable for the acts of Chief Howard and Town Administrator
Farrell, because LaForge has not shown that their actions
constitute a municipal policy, practice, or custom sufficient to
establish liability under § 1983. "Municipalities are liable for
constitutional violations resulting from their official policies
and customs." Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 5
(1st Cir. 2000), citing Monell, 436 U.S. at 690. "Normally,
therefore, a municipality cannot be held liable unless its agent
actually violated the victim's constitutional rights." Hayden v.
Gravson, 134 F.3d 449, 456 (1st Cir. 1998).
For the reasons discussed above, LaForge has not shown that
Chief Howard's actions deprived him of either his First or
25 Fourteenth Amendment rights. Hooksett might still be liable if
Farrell's actions constituted a municipal policy or custom that
deprived LaForge of his federal rights. According to the record,
Farrell's involvement in the events that led to LaForge's claims
is limited to his decision not to rescind LaForge's resignation.
The decision not to rescind LaForge's resignation did not
constitute an adverse employment action for the purpose of
LaForge's First Amendment claim. Since the record shows no
action by Farrell that would constitute deprivation of LaForge's
liberty interest, no Fourteenth Amendment violation occurred.
Because no trialworthy issue remains as to Hooksett's liability,
summary judgment is granted in favor of Hooksett as to LaForge's
§ 1983 claims.
II. State Claims
In the absence of LaForge's federal claims, the court
declines to exercise supplemental jurisdiction over his remaining
state claims. The state claims are dismissed, without prejudice,
for lack of subject matter jurisdiction.
26 Conclusion
The defendants' motion for summary judgment (document no.
12) is granted as to the plaintiff's federal claims in Counts I
and II. The plaintiff's state claims are dismissed without
prejudice. The clerk shall enter judgment accordingly and close
the case.
SO ORDERED.
Joseph A. DiClerico, Jr. United States District Judge
April 30, 2002
cc: V. Richards Ward Jr., Esquire Lawrence S. Smith, Esquire