Plasencia v. Gorham

• Court: District Court, D. New Hampshire
• Decided: February 18, 1997
• Docket: CV-96-472-SD
• Status: Published

Opinion

Plasencia v. Gorham CV-96-472-SD 02/18/97

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Dale A. Plasencia

V. Civil No. 96-472-SD

Town of Gorham; William Jackson, Town Manager

O R D E R

This action arises from the allegedly wrongful discharge of

plaintiff Dale A. Plasencia as the ambulance director for the

Town of Gorham. Plaintiff seeks relief for breach of contract,

wrongful discharge, and violation of 42 U.S.C. § 1983. Now

pending is defendants' motion for summary judgment.

Facts

In September 1989, the Town of Gorham hired plaintiff

Plasencia as the ambulance director of the town's ambulance

department, a full-time position. The ambulance director reports

to the town manager, and is responsible for organizing and

supervising a staff of paid volunteers.* To conclude employment

*The goal of the ambulance department is to provide 24-hour coverage to the town, and it is the ambulance director's duty to negotiations, the plaintiff and agents of the town signed an

employment contract that incorporated by reference terms from the

"Town of Gorham Personnel Plan." The Personnel Plan sets forth

various standard procedures to be followed in the event of

adverse employment actions by the town manager.

During Plasencia's tenure as ambulance director, the

ambulance department failed to respond to some of the emergency

calls from residents of the town of Gorham. Town Manager William

Jackson expressed to Plasencia his concern over the missed calls.

Jackson arranged a meeting on October 27, 1994, with Plasencia,

at which they discussed possible solutions to the problem of

missed calls.

In June of 1995, the Gorham ambulance department failed to

respond to two medical emergency calls. In response, Jackson

arranged another meeting with Plasencia on June 19, 1995, at

which he presented Plasencia the following three options:

1. Resign and get a recommendation from the Town of Gorham. 2. Solve the problem of volunteer staffing by July 19, 1995. This must be done without causing a rebellion among the volunteers. If this occurs, your employment will terminate immediately. 3. Do nothing and your employment will terminate on July 19, 1995.

Plasencia resigned without further discussion.

ensure that the department strives to reach that goal.

2 Following his resignation, Plasencia publicly criticized

Jackson and other town officials in the newspapers, calling them

liars, dictators and back-stabbers. Nonetheless, Plasencia was

subseguently rehired as a volunteer member of the ambulance

department.

Plaintiff brings a four-count complaint. Counts I and

III seek recovery against the town and Town Manager Jackson

respectively on grounds that Plasencia was fired in bad faith

and contrary to public policy. Counts II and IV seek recovery

against the town and Jackson respectively for breach of the

employment contract. Count IV apparently also seeks recovery

against Jackson for tortious interference with the contract.

Count V is brought under 42 U.S.C. § 1983 against the town and

alleges that the town violated the First Amendment by refusing to

rehire plaintiff because he spoke out against town officials.

____________________________ Discussion

Defendants seek summary judgment on plaintiff's section 1983

claim, in which he claims his First Amendment rights were

violated. The court agrees with defendants that the section 1983

claim fails because Plasencia has not shown that the Town of

Gorham restricted, punished, prohibited or otherwise limited his

ability to express himself as fully as he desired. As a general

3 rule, "a State cannot condition public employment on a basis that

infringes the employee's constitutionally protected interest in

freedom of expression." Connick v. Myers, 461 U.S. 138, 142

(1982). Plaintiff claims that Gorham has refused to rehire him

because he publicly cast aspersions on the honesty and integrity

of the town manager and the board of selectmen. However, the

evidence shows that the town did in fact rehire plaintiff to be a

volunteer member of the ambulance services, despite his

derogatory statements. Plaintiff goes on to argue that, while

the town did rehire him, it did not rehire him for the position

of ambulance director. There is, however, no evidence that

plaintiff actually reapplied for the position of ambulance

director. Since he did not reapply, the town never refused to

rehire him for that position, and thus has never denied plaintiff

a benefit because he expressed his opinions in the newspapers.

This is not to say that plaintiff could not make out a First

Amendment violation unless he presented evidence that he formally

reapplied for the position. Defendants could have constructively

refused to rehire him by leading him to believe that

reapplication would be futile. See Laaman v. Helgemoe, 437 F.

Supp. 269, 321 (D.N.H. 1977) (holding that the "very presence of

the regulation chills the exercise of plaintiffs' constitutional

rights of communication" even though no evidence was presented

4 that the regulation had been enforced). However, the only

evidence that reapplication would be futile is Jackson's

statement in his deposition that Plasencia would not be eligible

for rehire because "he's burned a number of bridges in town with

some newspaper articles." Jackson Deposition, attached to

Plaintiff's Memo in Support of Objection to Motion for Summary

Judgment, Exhibit A-2 at 31. However, Jackson made this

statement in response to the purely hypothetical guestion, "would

Mr. Plasencia be eligible to be rehired if he applied for the

open position at this time." Id. Jackson was only one on a

four-member hiring panel that would make the determination of

whether plaintiff would be rehired if he reapplied, so Jackson's

opinion in answer to a hypothetical guestion would not lead

Plasencia to believe that reapplication was futile. Plaintiff's

First Amendment claim cannot be manufactured from Jackson's

answer to a purely hypothetical guestion asked during a

deposition taken in preparation for trial.

The other defect in plaintiff's section 1983 claim is lack

of causation. He must show that defendants denied him the

benefit of employment as the ambulance director because he

expressed himself in the newspapers. But Plasencia spoke out

against the town after the town had fired him from the very same

position. If he reapplied, the town would not likely hire him

5 for a position from which he had just been fired, regardless of

whether or not he made the derogatory statements in the

newspapers.

Accordingly, the court finds and rules that plaintiff's

section 1983 claim is resolved summarily in favor of defendants.

Conclusion

For the foregoing reasons, defendants' motion for summary

judgment (document 5) is granted as to plaintiff's section 1983

claim. Having dismissed all claims over which it has original

jurisdiction, the court declines supplemental jurisdiction over

the remaining state claims. See 28 U.S.C. § 1367. The absence

of subject matter jurisdiction reguires the court to remand the

case to the Coos County Superior Court. See 28 U.S.C. § 1447.

The clerk of court is directed to mail a certified copy of this

order to the clerk of the state court, where this case may

proceed.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

February 18, 1997

cc: Leslie C. Nixon, Esg. Mark T. Broth, Esg.