Morancy v. Hillsboro CV-93-399-SD 02/13/95 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Walter W. Morancy, Jr.

v. Civil No. 93-300-SD

Town of Hillsboro, New Hampshire; Herbert R. Hansen, Joseph M. Eaton, Jr., and Mildred A. Mooney, in their official capacities as Selectmen for the Town of Hillsboro, New Hampshire; Frank P. Cate, Chief of Police for the Town of Hillsboro, in his personal and professional capacities; Sat. David Roarick and Corporal David Cahill, in both their personal and professional capacities; Leona Nevells

O R D E R

In this civil action, plaintiff Walter W. Morancy, Jr.,

asserts a federal claim for gender discrimination under the

Fourteenth Amendment and

and state law claims

for wrongful discharge and defamation.

Presently before the court is a motion for summary judgment

filed by all of the above-listed defendants except Leona Nevells. Background

Plaintiff Walter W. Morancy, Jr., was hired by the Town of

Hillsboro, New Hampshire, as a full-time probationary police

officer on August 28, 1992. He began his employment with the

police department in October of the same year. Under the terms

of his "Conditional Offer of Probationary Employment" agreement,

plaintiff's probationary period was to last one year. At the end

of the one-year time period, plaintiff would receive a "final

offer of employment" provided he had satisfied all of the terms

and conditions of employment detailed in the agreement, including

successful completion of police officer training at the New

Hampshire Police Academy. See Conditional Offer of Probationary

Employment (attached to Defendants' Motion as Exhibit 1).

Plaintiff began the ten-week training program at the Police

Academy in early January 1993. During this training, plaintiff

was reguired to stay at the Police Academy from Monday morning

through Friday afternoon each week, but was allowed to return

home during the weekends.

At the end of plaintiff's ninth week of training, during his

weekend visit at home, plaintiff became involved in a domestic

dispute with Leona Nevells, his live-in girlfriend. Plaintiff

asserts that the dispute began because of a discussion regarding

the phone bill and because he told Nevells that she was not

2 invited to his Police Academy graduation the following week.

Plaintiff asserts that Nevells

became very upset at this point. She ripped the calendar off the wall. She tried to take the phone off the wall, and I expect she was going to throw it at me. She took the scanner that was on top of the phone, threw that at me. Knocked an answering machine that was on the shelf off. Took a ski jacket that was on the counter and threw it at me. At this point she turned around and was in the area of some knives that were in the dish drainer, there was a dish drainer there on the counter, and I just felt that she was a little too close to the knives or that she was in a state where she was very upset, very angry and that she might try pulling a knife out. So, I got up and I stood between her and the knives. I kept trying to ask her to calm down, you know, very nicely. I put my hands on her shoulders to ask her to please calm down and tried to comfort her that way, and she reached up near my neck, pushed me back, and then pulled me towards her. And with my hands still on her shoulders, that's when we both fell down on the floor. In a nutshell, that's pretty much what happened.

Deposition of Walter W. Morancy, Jr., at 100-01 (attached to

Defendants' Motion as Exhibit 2). Plaintiff also states that he

used a loud, authoritative "command voice" in order to calm

Nevells down during their dispute.

.

Nevells' recollection of the dispute differs somewhat from

Morancy's. Nevells states that during the dispute Morancy told

her to "calm the f*** down" and to "get down on the floor."

Deposition of Leona Nevells at 44 (attached to Defendants' Motion

3 as Exhibit 3). Nevells further states that Morancy then "shoved"

or "pushed" her down onto the floor. Id.; Transcript of

Unemployment Compensation Hearing at 33 (Hearing Tr.) (attached

to Plaintiff's Objection as Exhibit 3). Nevells denies that

Morancy also ended up on the floor. Nevells Deposition at 45.

Instead, she claims that "[h]e never got off his feet" during the

dispute.

Nevells further states that Morancy never hit her

during the dispute. Hearing Tr. at 24.

After Morancy had returned to the Police Academy for his

final week of training, Nevells, during a telephone conversation

with another Hillsboro police officer, told the officer about her

domestic dispute with Morancy.

On Wednesday, March 10, 1993, Sergeant David Roarick and

Corporal David Cahill, both of the Hillsboro Police Department,

interviewed Morancy regarding his domestic dispute with Nevells

the previous weekend. After a lengthy interview, during which

Roarick and Cahill took turns interrogating him, Morancy filled

out a written statement about the incident.

Roarick and Cahill subseguently reported the results of

their investigation to Hillsboro Police Chief Frank P. Cate.

Cate, in turn, wrote a letter to the Hillsboro board of selectmen

recommending that plaintiff be discharged for violating police

standards relating to conduct unbecoming an officer and

4 "truthfulness." The selectmen, relying on Chief Cate's

recommendation, authorized Cate to discharge Morancy.

The following day, just before Morancy was to take his final

exam at the Police Academy, he was informed that the Town of

Hillsboro had terminated his employment. As a result thereof,

plaintiff was discharged from the Police Academy and was not

permitted to take his final exam.

Discussion

1. Summary 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."

When a party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party bears the burden of proof at trial, there can no longer be a genuine issue as to any material fact: the failure of proof as to an essential element necessarily renders all other facts immaterial, and the moving party is entitled to judgment as a matter of law.

Smith v. Stratus Computer, Inc.,

(1st Cir. 1994)

(citing Celotex Corp. v. Catrett,

(1986)).

5 Even in an employment discrimination case, "'where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.'"

Id. at 13 (guoting Goldman v. First Na t '1 Bank of Boston,

(1st Cir. 1993) (guoting Medina-Munoz v. R.J.

Reynolds Tobacco Co.,

(1st Cir. 1990))).

In determining whether summary judgment is appropriate, the

court construes the evidence and draws all justifiable inferences

in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc.,

(1986) .

3. Equal Protection Claim

In his complaint, plaintiff asserts that he was discharged

because of his gender, in violation of the Fourteenth Amendment

and

.

"To prevail in an action brought under

, a

plaintiff must show" (1) that he "was deprived of a right,

immunity, or privilege secured by the constitution or laws of the

United States" and (2) that such deprivation was caused "by a

person acting under color of state law." Pittslev v. Warish,

(1st Cir.) (citing Parratt v. Taylor,

(1982)), cert, denied,

(1991).

6 a. Municipal Liability

A municipality may be held liable as a "person" under

section 1983 if the deprivation complained of was caused by the

execution of "'a policy statement, ordinance, regulation, or

decision officially adopted and promulgated by that body's

officers.'" St. Louis v. Praprotnik,

(1988)

(plurality opinion) (guoting Monell v. New York City Pep't of

Social Servs.,

(1978)).

In Pembaur v. Cincinnati,

(1986), the

Supreme Court made clear "that municipal liability may be imposed

for a single decision by municipal policymakers under appropriate

circumstances." Such circumstances exist where "a deliberate

choice to follow a course of action is made from among various

alternatives by the official or officials responsible for

establishing final policy with respect to the subject matter in

guestion."

.

"[T]he identification of policymaking officials is a

guestion of state law."

.

"'Authority to make municipal policy may be granted directly by a

legislative enactment or may be delegated by an official who

possesses such authority, and of course, whether an official had

final policymaking authority is a guestion ofstatelaw.'"

(guoting

) .

7 Under New Hampshire law.

[t]he selectmen of a town, when they deem it necessary, may appoint special police officers1 who shall continue in office during the pleasure of the selectmen, or until their successors are chosen or appointed. The selectmen may designate one of the police officers as chief of police or superintendent and as such officer the chief of police or superintendent shall exercise authority over and supervise or superintend other police officers . . . .

New Hampshire Revised Statutes Annotated (RSA) 105:1 (1990).

Plaintiff was discharged by Chief Cates for conduct

unbecoming an officer and alleged untruthfulness during the

police investigation of the domestic dispute between plaintiff

and Nevells. The termination was authorized by Selectmen Hansen,

Eaton, and Mooney. Affidavit of Herbert R. Hansen 5 4

(Defendants' Exhibit 4); Affidavit of Joseph M. Eaton, Jr. 5 4

(Defendants' Exhibit 5); Affidavit of Mildred A. Mooney 5 4

(Defendants' Exhibit 6). Under these circumstances, the court

finds that the decision to terminate plaintiff was a decision

made by the Hillsboro officials responsible for establishing

final policy with respect to the firing of the town's police

officers. Accordingly, the decision to fire Morancy is one that

1The term "special" police officer is used to connote those officers who are appointed rather than elected. New Hampshire Mun. Workers' Compensation Fund v. Smith,

,

(1984). may give rise to municipal liability under section 1983.

b. Unlawful Discrimination

The Equal Protection Clause of the Fourteenth Amendment

states that "[n]o State shall . . . deny to any person within its

jurisdiction the equal protection of the laws." U.S. Co n s t .

amend. XIV, § 1. This provision "is essentially a direction that

all persons similarly situated should be treated alike."

Cleburne v. Cleburne Living Ctr., Inc.,

(1985).

Discrimination on the basis of sex violates the equal protection clause if such discrimination does not "serve important governmental objectives" and is not "substantially related to achievement of those objectives." Davis v. Passman,

(1979). To prove a violation of the equal protection clause, a plaintiff must show that the defendant acted with discriminatory intent.

Lipsett v. University of Puerto Rico,

(1st Cir.

1988). In the context of equal protection analysis,

[d]iscriminatory purpose' . . . implies more than intent as

volition or intent as awareness of consequences. It implies that

the decisionmaker . . . selected or reaffirmed a particular

course of action at least in part 'because of,' not merely 'in

spite of,' its adverse effects upon an identifiable group."

Personnel Adm'r of Mass. v. Feeney,

(1979) (citation omitted).

In determining whether a plaintiff has made the requisite

showing of discriminatory intent in a claim brought under section

1983, the court generally applies the same analytical framework

used to make such a determination in cases brought under Title

VII.2 Lipsett, supra,

. See also St. Mary's,

supra note 2, ___ U.S. at , 113 S. C t . at 2746-47 n.l

(assuming "that the McDonnell Douglas framework is fully

applicable to racial-discrimination-in-employment claims under

").

This framework, originally laid out by the Supreme Court in

McDonnell Douglas Corp. v. Green,

(1973), functions

"as a means of 'arranging the presentation of evidence.'" St.

Mary's, supra, 113 S. C t . at 2749 n.3. The framework does not,

however, "set forth immutable guidelines for the decision of all

2"Under this framework, the plaintiff bears the initial burden of establishing a prima facie case of sex discrimination." Stratus Computer, supra,

. The burden of production then shifts to the defendant who must articulate "a legitimate, non-discriminatory reason for its decision" to discharge the plaintiff.

. If the employer can articulate such a reason, "the presumption of discrimination vanishes, and the burden of production shifts back to the plaintiff. The plaintiff must then introduce sufficient evidence to support two additional findings: (1) that the employer's articulated reason for the job action is a pretext, and (2) that the true reason is discriminatory."

at 16 (quoting Woods v. Friction Materials, Inc.,

(1st Cir. 1994)). See also St. Mary's Honor Ctr., Inc. v. Hicks, ___ U.S. , 113 S. C t . 2742 (1993).

10 discrimination cases." Loeb v. Textron, Inc.,

(1st Cir. 1979); see also Furnco Constr. Corp. v. Waters,

(1978) ("The method suggested in McDonnell

Douglas . . . was never intended to be rigid, mechanized, or

ritualistic."). Instead, the framework merely serves as a guide,

which should be applied "to a greater or lesser degree in varying

circumstances," Loeb, supra,

, to determine the

ultimate guestion of "'whether the defendant intentionally

discriminated against the plaintiff.'" St. Mary's, supra, 113 S.

C t . at 2753 (guoting United States Postal Serv. Bd. of Governors

v. Aikens,

(1983)). See also Furnco Constr.

Corp., supra,

(the framework "is merely a

sensible, orderly way to evaluate the evidence in light of common

experience as it bears on the critical guestion of

discrimination").

Here, the court is presented with a claim of reverse sex

discrimination in which plaintiff asserts that he was discharged

from his position as a probationary police officer because of his

gender. Because the facts of the case do not fit neatly into the

structured elements generally required to make out a prima facie

case in a traditional sex discrimination action, the court uses

the McDonnell Douglas framework here only as a guide in

evaluating whether plaintiff has presented sufficient evidence

11 "for a reasonable factfinder to infer that the employer's

decision was motivated by discriminatory animus." Stratus

Computer, supra,

.

c. Plaintiff's Evidence of Discriminatory Intent

The evidence before the court, construed in the light most

favorable to the plaintiff, reveals the following. At the time

of his discharge, Morancy had been employed by the Hillsboro

Police Department as a probationary police officer for

approximately four months and was in his tenth week of the ten-

week training program at the New Hampshire Police Academy.

During a weekend visit at home between Morancy's ninth and

tenth weeks at the police academy, he was involved in a domestic

dispute with Nevells, his live-in girlfriend. Nevells reported

the incident to a member of the Hillsboro Police Department the

following week.

Following the police department's investigation of the

incident, which included a lengthy interrogation of Morancy by

defendants Roarick and Cahill, the Town of Hillsboro terminated

Morancy for violating police standards relating to conduct

unbecoming an officer and "truthfulness."

Plaintiff's father, Walter W. Morancy, Sr., spoke with Chief

Cate about his son's termination on March 11 because he "wanted

12 to find out what was going on, what happened." Deposition of

Walter W. Morancy, Sr., at 30 (attached to Supplement to

Defendants' Motion as Exhibit B ) . He states that during this

meeting Chief Cate "said he was personally worried that a women's

right[s] group organization would come and say he didn't do

enough, and he could be sued by them."

.

Plaintiff's father and Chief Cate met for a second time on

March 12. Plaintiff's father states that during this meeting

Chief Cate stated that "he was still concerned about a women's

right[s] group coming in and saying he didn't do enough, so he

had to work fast on this one."

.

Chief Cate does not deny making the statements attributed to

him by plaintiff's father, but states that

Mr. Morancy was discharged because engaging in domestic violence is contrary to the principles of conduct becoming a police officer. I explained to Mr. Morancy at the time of his discharge that domestic violence was not only a critical social problem, but also a significant portion of a police officer's work. His ability to deal with such situations would be essential to his success in our department. Engaging in conduct which results in the bruising of his girlfriend, a member of his household, was at a minimum, guite alarming.

Affidavit of Frank P. Cate 5 4 (attached to Defendants' Motion as

Exhibit 7).

Chief Cate further states that

13 it is the policy of the Hillsborough Police Department to engage potential officers for a one-year probationary period during which their conduct, training, progress and suitability are scrupulously monitored, not only by supervising officers in my department, but also by the officials at the New Hampshire Police Academy. Mr. Morancy was discharged during the probationary period because of his failure to comply with police standards.

at 55 5-6.

To prevail on his section 1983 claim, plaintiff has the

burden of proving that the defendants intentionally discriminated

against him. St. Mary's, supra, 113 S. C t . at 2753. In other

words, plaintiff must produce sufficient evidence for a

reasonable jury to find that he would not have been fired but for

his gender. Petitti v. New England Tel. & Tel. Co.,

(1st Cir. 1990) . See also Villanueva v. Wellesley College,

(1st Cir.) ("to defeat summary judgment, the

plaintiff must introduce evidence that the real reason for the

employer's action was discrimination"), cert, denied,

(1991).

The evidence presented by plaintiff to establish that he was

terminated because of his gender is limited to his father's

testimony of the statements made by Chief Cate. The court finds

that this evidence is, as a matter of law, insufficient to allow

a reasonable jury to find that the defendants acted with

14 discriminatory intent when they terminated plaintiff's

employment. Defendants' motion for summary judgment is therefore

granted as to plaintiff's egual protection claim.

3. Wrongful Discharge

In order to maintain a wrongful discharge claim under New

Hampshire law, a plaintiff must establish two elements:

one, that the employer terminated the employment out of bad faith, malice, or retaliation; and two, that the employer terminated the employment because the employee performed acts which public policy would encourage or because he refused to perform acts which public policy would condemn.

Short v. School Admin. Unit No. 16,

,

(1992) (citing Cloutier v. A & P Tea Co., Inc.,

,

(1981)).

"[0]rdinarily the issue of whether a public policyexists is

a guestion for the jury."

,

(citing

,

) .

However, "at times the presence or absence of such a public

policy is so clear that a court may rule on its existence as a

matter of law and take the guestion away from the jury."

(citation omitted).

Public policy exceptions giving rise to wrongful discharge

actions may be based on statutory or nonstatutory expressions of

15 public policy.

,

. However, "'unless an employee at will identifies a

specific expression of public policy, he may be discharged with

or without cause.'"

,

(quoting Pierce v. Ortho Pharmaceutical Corp.,

, 512

(N.J. 1980) ) .

In his complaint, plaintiff alleges that his

discharge was wrongful because to the extent the plaintiff was dismissed because of the domestic disturbance with the defendant Nevells, his handling of the disturbance was in accordance with the training he was receiving at the N.H. Police Academy. In handling the disturbance, plaintiff first used a command voice. When that was ineffective, he used appropriate, measured physical restraint. To be dismissed from his employment for using the training he was receiving is tantamount to being discharged for doing that which public policy encourages.

Complaint 5 73.

Defendants contend that summary judgment should be granted

as to plaintiff's claim for wrongful discharge because

plaintiff's use of his police training in handling a domestic

disturbance in his own home is not an act which public policy

would encourage. In support thereof, defendants submit the

affidavit of Chief Cate, who states,

I have . . . made myself familiar with Mr. Morancy's claim that his discharge was based in part upon his furtherance of a public

16 policy encouraging the use of police tactics to deal with members of the officer's own household. Far from being a part of public policy, and based upon my twenty years of experience as a law enforcement officer, responsible police chiefs advise their officers to the contrary. Police officers such as Mr. Morancy, especially since he was a novice with no "on-the-street" experience, should leave their "police presence," "command voice" and similar tactics in their patrol car when they leave the shift.

Cate Affidavit 5 3.

Police officers receive training to help them deal with the

wide range of situations they may encounter as police officers,

including domestic disturbances. Plaintiff explained during his

deposition that at the police academy "they teach you that

there's different levels of force, and one is officer presence,

two is command voice, and three is, I think, physical, and four

is something else, and I think the fifth one is deadly force."

Deposition of Walter W. Morancy, Jr., at 157.

When a police officer is called upon to respond to a

domestic dispute between two individuals, he utilizes his police

training to diffuse or resolve the situation he encounters. Such

a situation is markedly different from the one presented in this

case, where the police officer himself was a party to the

domestic disturbance. Under these circumstances, the court

finds, as a matter of law, that plaintiff's use of police tactics

during a domestic disturbance in which he is an involved party is

17 not an act that public policy would encourage.

Defendants' motion for summary judgment is therefore granted

as to plaintiff's wrongful discharge claim.3

4. Defendant Leona Nevells

Plaintiff's complaint asserts a state-law claim for

defamation against Leona Nevells. Defendant Nevells was served

with a summons and copy of the complaint on July 6 , 1993, but has

failed to file an appearance or response in accordance with the

reguirements of Rule 12(a), Fed. R. Civ. P. Plaintiff filed a

timely motion for entry of default (document 3), but subseguently

3In arguing that his wrongful discharge claim should survive defendants' summary judgment motion, plaintiff relies on the case of Clark v. Manchester,

,

(1973), which addresses the guestion of whether a probationary police officer's due process rights were violated by his discharge. Citing Clark, plaintiff asserts that he "believes he can prove that the manner in which he was dismissed, without a hearing, has seriously damaged his standing and associations in the police community. He believes he can prove[] that he has been stigmatized and that future opportunities to become a police officer have been severely curtailed." Plaintiff's Objection at 7. To the extent that plaintiff is attempting to base his wrongful discharge claim on the contention that his discharge deprived him of a liberty interest without due process, the court finds that said claim fails. When faced with a motion for summary judgment, plaintiff must do more than state that he "believes he can prove" his claim. Instead, he must come forward with "'definite competent evidence' [to fortify his] version of the truth." Vega v. Kodak Caribbean, Ltd.,

(1st Cir. 1993) (guoting Mesnick v. General Elec. Co.,

(1st Cir. 1991), cert, denied, ___ U.S. ___, 112 S. C t . 2965 (1992)). Plaintiff has failed to produce any such evidence in support of the due process claim he alludes to in his objection.

18 withdrew that motion (document 6). Accordingly, this action is

hereby dismissed as to defendant Nevells for failure to

prosecute. See Local Rule 21(c).

Conclusion

For the reasons set forth herein, defendants' motion for

summary judgment is granted, and this action is dismissed as to

defendant Nevells for failure to prosecute. The clerk shall

enter judgment accordingly.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

February 13, 1995

cc: R. Peter Decato, Esg. Robert E. McDaniel, Esg.

19