Rhude v. Belknap County, NH CV-99-397-JD 10/31/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Christine M. Rhude
v. Civil No. 99-397-JD Opinion No. 2000 DNH 234 Belknap County, New Hampshire et a l .
O R D E R
The plaintiff, Christine Rhude, brings suit against her
former employer, Belknap County, New Hampshire, and several
county officials in connection with the events surrounding the
County's termination of her employment. After Rhude filed her
first amended complaint, all but one of the defendants ("the
Belknap County defendants") moved for summary judgment (document
no. 14). The remaining defendant, Richard Boehme, moved for
partial summary judgment (document no. 15). Rhude also moved for
partial summary judgment (document no. 16). Rhude subsequently
filed a second amended complaint with leavefrom the court. This
complaint repeated three claims that were previously pled and
added a claim for negligent supervision. The court granted the
Belknap County defendants leave to file a supplemental motion for
summary judgment to address the claim for negligent supervision
(document no. 33). Therefore, the court construes the Belknap
County defendants' prior motion for summary judgment (document no. 14) as a motion for partial summary judgment on the claims
addressed therein.1
Rhude assents to summary judgment in Boehme's favor on the
claims brought under 42 U.S.C. § 1983. Therefore, Boehme's
motion for partial summary judgment is granted (document no. 15).
Background2
Christine Rhude worked at the Belknap County Nursing Home
from September of 1991 until May of 1998, first as a Certified
Nursing Assistant and later as a clerical aide. In the spring of
1998, rumors began circulating among the nursing home staff that
Richard Boehme, the Head of Environmental Services, was having an
1Normally, when an amended complaint is filed, any previously filed dispositive motions that targeted an earlier complaint become moot. In this case, leave to file a second amended complaint was granted because the new count did not involve facts that were not previously alleged. The court then permitted the defendants to supplement their previously filed motion for summary judgment in order to address the added count of negligent supervision.
2The facts in this section are taken from the parties' statements of material facts. The court directs the plaintiff's counsel to review the Local Rule that requires a party opposing summary judgment to support its statement of material facts with "appropriate record citations." LR 7.2(b)(2). A single reference to attached affidavits in their entirety does not satisfy the local rule's requirement.
2 extramarital affair with Terry Goodwin, another nursing home
employee. Rhude claims that in April or May of 1998, she heard
Boehme make a comment about his attraction to Goodwin. Rhude
claims Boehme believed that she was inciting the rumors about the
affair, and Boehme began approaching Rhude at work and calling
her at home to demand that she do something to stop the rumors.
Rhude asserts that she began to be afraid of Boehme. Rhude and a
co-worker, Deborah White, met with the Nursing Home
Administrator, Robert Chase, to complain about Boehme's behavior.
Rhude told Chase that she was afraid of Boehme, but Chase took no
action in response to her complaints.
On May 13, 1998, a heated altercation between Rhude and
Boehme occurred at the nursing home, resulting in police being
called to the scene. On May 14, Chase and Kathy Lord, Director
of Nurses, met with Rhude and discussed the incident. At the end
of the meeting. Chase informed Rhude that she would be suspended
with pay for two weeks, and that he would send her a letter to
that effect. Chase did not explicitly inform Rhude at their
meeting that she might be terminated or that the Belknap County
Commission would meet to discuss her possible termination. The
letter of suspension he sent Rhude stated, "If you are found to
share any responsibility for the incident, you are subject to
disciplinary action under RSA 28:10-a. If you have any
3 questions, please feel free to contact me." The letter did not
refer to a hearing or invite any other response from Rhude.
On May 20, 1998, Chase filed a report with the Belknap
County Commission, recommending that Rhude's employment be
terminated. That same day, the County Commission met and issued
Rhude a letter notifying her that her employment would be
terminated as of May 30. Rhude had no prior notice of the County
Commission's meeting and was not present at the meeting. The
County Commission also voted to terminate Boehme, but allowed him
the opportunity to resign first, which he did.
Rhude retained counsel and appealed her termination to the
Belknap County Personnel Committee by letter on June 16, 1998.
Rhude's counsel, David Slawsky, and defendants' counsel, Bradley
Kidder, agreed to schedule a hearing before the Personnel
Committee on July 30, 1998. Slawsky made several attempts in the
month of July to ascertain the procedural rules that would apply
at the appeal hearing. On July 22, Kidder sent Slawsky a
document titled "Appendix D: Belknap County Personnel Committee
Rules for Discharge Appeal Hearings" which states that a
discharge appeal hearing must be held within fifteen days of the
employee's request, and that failure of the county to abide by
this requirement results in immediate revocation of discharge and
reinstatement. Kidder identified this "Appendix D" as part of
4 the nursing home's collective bargaining agreement. On July 24,
Rhude filed a motion for immediate revocation of discharge with
the Personnel Committee. On July 29, Rhude withdrew her appeal,
citing uncertainty over the procedural rules that would be
employed at the hearing. She subsequently filed a charge with
the New Hampshire Commission for Human Rights and later, this
lawsuit. Four counts are included in Rhude's second amended
complaint: (1) a § 1983 claim for violation of Rhude's right to
procedural due process; (2) constructive discharge; (3) negligent
supervision; and (4) assault.
Standard of Review
Summary judgment is appropriate when "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." Fed. R. Civ. P.
56(c). The record evidence is taken in the light most favorable
to the nonmoving party, indulging all reasonable inferences in
its favor. See Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d
572, 577 (1st Cir. 1999) . The court must consider the record as
a whole, and may not make credibility determinations or weigh the
evidence. See Reeves v. Sanderson Plumbing Prods., Inc., 120 S.
5 C t . 2097, 2110 (2000) . When parties file cross motions for
summary judgment, "the court must consider each motion
separately, drawing inferences against each movant in turn."
Reich v. John Alden Life Ins. Co., 126 F.3d 1, 6 (1st Cir. 1997).
The party seeking summary judgment must first demonstrate
the absence of a genuine issue of material fact in the record.
See DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). An
issue of fact is genuine if there is sufficient evidence to
permit a rational fact-finder, considering the evidence in the
light most favorable to the nonmoving party, to find for either
party. See Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d
5, 8 (1st Cir. 1990).
In response to a properly supported motion for summary
judgment, the nonmoving party bears the burden to show a genuine
issue for trial by presenting significant material evidence in
support of the claim. See Tardie v. Rehabilitation Hosp., 168
F.3d 538, 541 (1st Cir. 1999). Summary judgment will not be
granted as long as a reasonable jury could return a verdict in
favor of the nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986) .
If the moving party will bear the burden of proof at trial,
summary judgment is appropriate only if "(1) the moving party
6 initially produces enough supportive evidence to entitle the
movant to judgment as a matter of law (i.e., no reasonable jury
could find otherwise even when construing the evidence in the
light most favorable to the non-movant), and (2) the non-movant
fails to produce sufficient responsive evidence to raise a
genuine dispute as to any material fact." Murphy v. Franklin
Pierce Law Ctr., 882 F. Supp. 1176, 1180 (D.N.H. 1994) (citing
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir.
1993)).
Discussion
I. Due Process: Cross-Motions
Rhude contends that she is entitled to summary judgment on
her due process claim because the defendants3 terminated her
employment without first giving her notice, explaining the
evidence against her, or giving her the opportunity to present
her side of the story.4 The defendants argue that they are
3For the rest of this order, the court's references to "the defendants" shall be understood to mean the Belknap County defendants and not Richard Boehme, unless otherwise noted.
4The defendants interpret Rhude's complaint to allege a separate due process claim based on deficiencies in the procedures followed after her employment was terminated. However, Rhude does not appear to make such a claim. Her motion for partial summary judgment on the due process count relies on
7 entitled to summary judgment because Rhude received due process
both before and after her termination.
A. Exhaustion of state remedies
The defendants contend that Rhude cannot bring a § 1983 due
process claim because she has failed to exhaust the remedies
available to her under New Hampshire law, as provided by the
terms of the collective bargaining agreement between the Belknap
County Nursing Home and the State Employees Association of New
Hampshire. Rhude does not address this argument in her objection
to the defendants' motion.
In Patsy v. Board of Regents, 457 U.S. 496 (1982), the
Supreme Court held that a plaintiff is not required to exhaust
administrative remedies before asserting a § 1983 claim in
an alleged violation in the lack of pre-termination due process only. Likewise, her objection to the defendants' motion for summary judgment does not dispute their argument that the scheduling of her post-termination hearing did not violate due process. Instead, Rhude discusses the post-termination events in the context of the curability of any pre-termination due process violation. Therefore, the court understands Count One of Rhude's second amended complaint to include only one claim based on a violation of her right to due process before termination of her employment. C f . Cleveland Bd. of Educ. v. Loudermill, 47 0 U.S. 532, 547 n.12 (1985) (noting allegation of post-termination due process violation in administrative delay "is not an alternative theory supporting the same relief, but a separate claim altogether"). federal court. See Kercado-Melendez v. Aponte-Rogue, 829 F.2d
255, 260-62 (1st Cir. 1987); Murphy v. City of Manchester, 70 F.
Supp. 2d 62, 67 (D.N.H. 1999). The Patsy rule applies where
state proceedings are remedial rather than coercive, and where
"the federal plaintiff claim[s] actual injury arising from action
undertaken and completed by state actors." Kercado-Melendez, 829
F.2d at 261. Here, Rhude chose not to appeal her termination
through the procedures available to her under state law, so there
is no ongoing state proceeding that might cause this court to
abstain. See id. at 262. Accordingly, Rhude's due process claim
is not precluded by her failure to exhaust available
administrative procedures.
B. Adequacy of Pre-Termination Process
The parties do not dispute that Rhude had a property
interest in her continued employment with Belknap County, thereby
entitling her to constitutional due process in the termination of
this interest. See Loudermill, 470 U.S. at 541. They do dispute
whether Rhude received all of the process due under the
Constitution.
Before a tenured public employee may be terminated, she "is
entitled to oral or written notice of the charges against [her],
an explanation of the employer's evidence, and an opportunity to
9 present [her] side of the story." Id. at 546. The First Circuit
has held that to satisfy Loudermill's notice requirement,
"officials must provide the individual with notice of the charges
alleged against [her] and any proposed action the officials
intend to take, based on those charges." Cotnoir v. Univ. of
Maine Svs., 35 F.3d 6, 11 (1st Cir. 1994); cf. O'Neill v. Baker,
210 F.3d 41, 49 (1st Cir. 2000) (stating notice that termination
would be considered at hearing was not required where employee
had prior notice that termination could result if she did not
show improvement).
The process required before termination depends in part on
the specific post-termination remedies that are available to the
plaintiff. See Loudermill. 470 U.S. at 1495; Brasslett v. Cota.
761 F.2d 827, 836 (1st Cir. 1985) . While the existence of post
termination procedures is therefore relevant to the pre
termination due process analysis, the purpose of the pre
termination hearing is to prevent mistaken decisions and ensure
that the grounds for the termination are reasonable and true.
See Loudermill, 470 U.S. at 545-46. The Loudermill pre
termination requirements achieve this purpose and ordinarily,
post-termination procedures will not cure a pre-termination due
process violation. See Cotnoir, 35 F.3d at 12-13. Post
termination process alone may suffice where pre-termination
10 process is impractical, or where the termination results from
random and unauthorized actions. See Zinermon v. Burch, 494 U.S.
113, 127-29 (1990); Herwins v. City of Revere, 163 F.3d 15, 18-19
(1st Cir. 1998); Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d
525, 535-36 (1st Cir. 1995); Lowe v. Scott, 959 F.2d 323, 339-40
(1st Cir. 1992). Neither situation exists in this case.
Therefore, the court assesses the pre-termination process
provided here using the Loudermill standard.
The day after her altercation with Boehme, Rhude met with
Chase and Lord to discuss what happened. She states in her
affidavit, and the defendants do not dispute, that neither
supervisor told her at that meeting that termination was a
possibility or that the County Commission would discuss the
matter. Instead, Chase informed her she would be suspended. As
in Cotnoir. Rhude was warned that "unspecified disciplinary
action" could result, but was not specifically told that
termination was being considered. Cotnoir, 35 F.3d at 12; cf.
Brasslett, 761 F.2d at 836 (finding no due process violation
where employee was notified of possibility of discharge). Under
the First Circuit's notice standard, Rhude did not receive notice
before or during the meeting with Chase and Lord that termination
was being considered. Consequently, the meeting with Chase and
Lord was not a constitutionally sufficient opportunity to be
11 heard, because Rhude could not meaningfully present a case
against termination without first being informed that termination
was being considered. See Cotnoir, 35 F.3d at 12.
However, Chase's letter of suspension notified Rhude that
she could be disciplined under RSA 28:10-a if she were found to
share responsibility for the incident. RSA 28:10-a outlines the
grounds and procedures for suspending or discharging county
employees. See RSA 28:10-a (1988). This letter is dated May 14,
1998, six days before the County Commission decided to terminate
Rhude's employment. The question arises whether this letter
served as adequate notice to Rhude that her employment might be
terminated, an issue that neither party has addressed.
The court need not resolve this question, however, because
even if the suspension letter did give Rhude sufficient pre
termination notice, she was not given an opportunity to argue
against termination after she received this notice. The
suspension letter did not indicate that the County Commission
would meet to discuss her case, nor did it indicate how or when
it would be determined whether Rhude shared responsibility for
the incident with Boehme. The suspension letter did not invite
Rhude to submit any further written explanation of her actions.
While the plaintiff may bear some responsibility to request a
pre-termination hearing, she must at least be informed of the
12 option to request a hearing. See, e.g., Feliciano-Anqulo v.
Rivera-Cruz, 858 F.2d 40, 43 (1st Cir. 1988) (plaintiff was
instructed to request a hearing or respond by letter to notice of
intended termination); Moody v. Town of Weymouth, 805 F.2d 30, 33
(1st Cir. 1986) (plaintiff was invited to respond by letter to
notice of intended termination).
Therefore, even if the letter of suspension did provide
Rhude with sufficient pre-termination notice of the specific
disciplinary action being considered, she was not given an
opportunity to be heard after receiving such notice. As
discussed above, the post-termination procedures do not cure this
violation of Rhude's right to due process before termination.
Consequently, Rhude was not given due process prior to the
County's decision to terminate her employment, and she is
entitled to summary judgment on her claim that the defendants
violated her right to due process prior to termination of her
employment.
II. Constructive Discharge
Count II of Rhude's second amended complaint alleges a claim
for constructive discharge. Rhude alleges that she resigned from
her employment when she withdrew her appeal from the Belknap
County Personnel Committee, and that she did so reasonably in
13 light of the County's actions.
A constructive discharge claim requires proof that the
plaintiff was compelled to resign because of intolerable working
conditions. See Suarez v. Pueblo Int'l, Inc., __ F.3d , 2000
WL 1477041, at *4 (1st Cir. Oct. 11, 2000); Landrau-Romero v.
Banco Popular De Puerto Rico, 212 F.3d 607, 613 (1st Cir. 2000) .
The record evidence establishes that the County terminated Rhude
from her employment on May 30, 1998. Her decision in July of
1998 not to appeal the County Commission's decision to fire her
was not equivalent to a resignation, as she had already been
fired. Therefore, the defendants are entitled to summary
judgment on this count.
III. Negligent Supervision
Also before the court is the defendants' supplementary
motion for summary judgment on Rhude's claim of negligent
supervision (document no. 33). Rhude alleges that Robert Chase
failed to properly supervise Boehme by neglecting to respond to
repeated complaints about Boehme's conduct. Rhude contends that
Chase's failure to supervise Boehme led to the altercation
between her and Boehme, and that Belknap County is liable through
the doctrine of respondeat superior for the actions of Chase and
Boehme.
14 "An employer may be directly liable for damages resulting
from the negligent supervision of its employee's activities."
Trahan-Laroche v. Lockheed Sanders, Inc., 139 N.H. 483, 485
(1995); see also Marquav v. Eno, 139 N.H. 708, 718 (1995)
(discussing negligent hiring or retention). Under this theory,
the employer's liability is direct, not vicarious, and the
employer's duty of care may extend to actions outside the scope
of employment. See Trahan-Laroche, 139 N.H. at 485.
Alternatively, "an employer may be held vicariously liable for
the tortious acts of an employee committed incidental to or
during the scope of employment." Id.
Rhude's complaint refers to respondeat superior, but in her
opposition to summary judgment she cites Trahan-Laroche for the
direct liability theory, so it is unclear whether she proceeds
under one or both theories. The parties have not addressed
whether the alleged assault by Boehme occurred within the scope
of employment, and the court does not resolve that issue now. In
any event, the record evidence shows that Rhude and other
employees were concerned about Boehme's hostile and abusive
behavior and reported their concerns to Chase and other county
officials. The evidence also indicates that no concrete action
was taken in response to these complaints. Whether this inaction
is causally linked to the altercation between Boehme and Rhude is
15 a genuine issue of material fact precluding summary judgment.
IV. Assault
Rhude has alleged a claim of assault against the defendant,
Boehme, concerning which no dispositive motions have been filed.
In her second amended complaint, Rhude added an allegation that
Belknap County is liable for Boehme's actions under the doctrine
of respondeat superior. The Belknap County defendants did not
move to supplement their motion for summary judgment to address
this allegation.
Conclusion
The defendant Boehme's motion for partial summary judgment
on Count II of the first amended complaint (document no. 15)
shall be construed as a motion for partial summary judgment on
Count I of the second amended complaint, and is granted.
The plaintiff's motion for partial summary judgment on Count
11(c) of the first amended complaint (document no. 16) shall be
construed as a motion for partial summary judgment on Count I of
the second amended complaint, and is granted against the Belknap
County defendants.
The Belknap County defendants' motion for summary judgment
(document no. 14) is construed as a motion for partial summary
16 judgment and is denied as to Count I of the second amended
complaint, and is granted as to Count II of the second amended
complaint. The Belknap County defendants' supplemental motion
for summary judgment on Count III of the second amended complaint
(document no. 33) is denied.
A number of issues raised in this case have been resolved by
this order. The parties should engage in good faith efforts to
arrive at a nontrial disposition of the case.
SO ORDERED.
Joseph A. DiClerico, Jr. District Judge
October 31, 2000
cc: David P. Slawsky, Esquire John T. Alexander, Esquire Naomi L. Mooney, Esquire