Benoit v. Claremont CV-94-268-JD 11/03/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

James Benoit

v. Civil No. 94-268-JD

City of Claremont, et al.

O R D E R

The plaintiff, James Benoit, brings this action against the

defendants. City of Claremont, City of Claremont Police Depart­

ment ("Department")a Claremont Police Commission ("Commission")

and Police Chief Michael L. Prozzo, Jr., pursuant to

and 1983, for alleged violations of the plaintiff's right to

free speech under the First Amendment. Before the court is

Prozzo's Motion for Summary Judgment (document no. 13) on the

issue of gualified immunity.

Background1

From March 29, 1979, until February 19, 1988, James Benoit

was a police officer with the Claremont, New Hampshire, Police

1The court's recitation of the facts relevant to the instant motion are either not in dispute or have been alleged by the plaintiff. Department.2 Complaint at 5 3; Affidavit of Michael L. Prozzo,

Jr. in support of Motion for Summary Judgment ("Prozzo

Affidavit") at 55 4, 6. In the summer of 1989, Benoit again

applied for a position with the Department and was sworn in on

August 11, 1989. Prozzo Affidavit at 55 7, 9. During the

plaintiff's second tenure with the Department, he was under the

command of Prozzo, who was the police chief from November 1988,

through December 1994.

at 5 2. On May 10, 1994, Benoit

again resigned from the Department. Complaint at 5 24; Prozzo

Affidavit, Ex. 31.

During his tenure with the Department, Benoit received

commendations for

outstanding police performance in apprehending a burglar (November 21, 1983), for his work in combatting the influx of illegal drugs (May 8, 1980, October 30, 1990, June 1, 1991), for solving serious crimes against persons (December 8, 1989), for averting a tragedy in connection with his efforts to prevent the operator of a burning car from approaching and endangering students in a Claremont school yard (April 13, 1993), for outstanding conduct (November 29, 1983, April 16, 1984), and for disarming a dangerous person with a concealed firearm and protecting his fellow officers (March 21, 1991) .

Complaint at 5 4. In addition, the plaintiff received many

written expressions of support and appreciation from members of

21he plaintiff resigned because he was suffering from depression caused by the termination of a personal relationship. Affidavit of James Benoit ("Benoit Affidavit"), Ex. B.

2 the Claremont community for his performance as a police officer.

at 5 5.

While employed as a police officer, Benoit frequently

alerted his superiors to a variety of concerns related to

personal and public safety and departmental procedure. Complaint

at 5 11. On August 23, 1993, the plaintiff requested that patrol

officers properly be vaccinated given their risk of exposure to

rabid animals. Prozzo Affidavit at 5 19. On September 21, 1993,

Benoit further requested that patrol cars no longer be used to

dispatch wild animals.

Ex. 11. Instead, he recommended

that city employees transport the animals or, in the alternative,

that each patrol car be equipped with sealed animal storage

containers.

The Department responded to the plaintiff's

concerns by issuing updated animal control procedures effective

November 4, 1993.

Ex. 12.

On a separate occasion, the plaintiff prevented the operator

of a burning vehicle from approaching and endangering children in

a schoolyard. Complaint at 5 14. In the course of this rescue,

Benoit was unable to communicate with other officers to warn them

of impending danger.

As a result, Benoit nearly collided

with another police car as he attempted to position his vehicle

in front of the burning car and bring it to a halt.

3 Following this event, the plaintiff requested that the Department

review its communication policies.

Shortly after expressing concern about the communication

policies, the plaintiff notified his superiors that the Depart­

ment's policies governing police response to bank alarms also

presented various dangers. Complaint at 5 15. Specifically, the

plaintiff observed that the "present rules place the responding

officer in danger of drawing fire from perpetrators without

permitting safe responding fire and place the public in danger of

being taken hostage."

For several months, Prozzo was not aware of the plaintiff's

recommendations regarding "radio communication breakdown" or bank

alarm procedures because Benoit's superiors had failed to relay

these concerns to Prozzo. Prozzo Affidavit at 5 21; Complaint at

55 14-16. However, upon learning of the concerns, Prozzo

evaluated the issues raised and determined that the existing

procedures should not be modified. Prozzo Affidavit at 5 21.

In June 1993, Benoit informed the Department that dangerous

incidents involving the misuse of handguns had occurred in August

1990 in the locker room and elsewhere at police headquarters.

Complaint at 5 18; Prozzo Affidavit at 5 28. The plaintiff

alleged that certain officers had aimed handguns at, or in the

general direction of, the plaintiff and other officers. Prozzo

4 Affidavit, Ex. 20. Upon learning of these incidents, Prozzo

decided that he could not undertake an investigation because the

reported events had occurred nearly three years earlier.

at

5 28.

On December 26, 1993, Benoit reported a more recent incident

involving the misuse of a handgun. Prozzo Affidavit at 5 29.

Because this event was reported promptly, an internal investiga­

tion was conducted and the offending officer was disciplined by

means of a written warning.

In addition, Prozzo authorized

the issuance of a special order reminding officers of the

prohibition against the removal of firearms from holsters without

justification. Id.; Complaint at 5 18.

In early 1993, an officer serving on the night shift left

the Department, thereby reguiring the Department to reassign an

officer to fill the vacancy. Prozzo Affidavit at 5 27. Con­

sistent with departmental policy, the Department determined that

the least senior officer on the day shift would be transferred.

The Department determined that Benoit was the least senior

officer on the day shift after having calculated the length of

his employment from 1989, the date of his re-hire.

at 55 22,

27. On April 20, 1993, Benoit submitted a grievance letter

contesting Prozzo's failure to include his initial nine years of

employment when determining seniority.

at 5 22. On May 28,

5 1993, Prozzo denied the grievance request and provided a copy of

the denial to the police union.

at 5 23.

On June 4, 1993, the union sent a grievance letter to the

Commission echoing Benoit's contention that the collective

bargaining agreement requires that seniority be calculated from

the date of initial hire, whether or not employment was contin­

uous. Prozzo Affidavit at 5 24 & Ex. 9 at 21. On September 22,

1993, the Commission concluded that the plaintiff's seniority had

been calculated correctly by Prozzo.

Ex. 17. Subsequently,

the union requested additional time to consider further appeal

options but no such action followed.

at 5 26. On November

10, 1993, Benoit's work schedule was changed from the day shift

to the night shift.

Ex. 19.

By early 1994, the plaintiff had become increasingly

troubled by the Department's failure to address his complaints

adequately. See Benoit Affidavit, Ex. B. Prozzo communicated

the plaintiff's concerns to the Commission, which invited the

plaintiff to appear before it to address these issues personally.

Prozzo Affidavit, Ex. 28. On or about April 5, 1994, Benoit

testified before the Commission, following which the Commission

directed Prozzo to order Benoit to undergo a Fitness For Duty

Evaluation ("psychological evaluation").

at 5 31 & Ex. 26.

Prozzo issued the order on April 11, 1994.

Ex. 26.

6 Pending the outcome of the psychological evaluation, Benoit

was placed on administrative leave. Prozzo Affidavit at 5 32.

During this period, Prozzo ordered the plaintiff to surrender his

badge and gun, and two officers were sent to Benoit's home to

collect the items.

at 5 33; Complaint at 5 21. When the

Department learned that the items were located in Benoit's locker

at the police station, Prozzo ordered the locker "sealed off."

Prozzo Affidavit at 5 33.

The psychological evaluation concluded that Benoit was "fit

for duty," and following receipt of this determination, the

Department instructed Benoit to return to duty on April 30, 1994.

Prozzo Affidavit at 5 34. Although the written "return to duty"

notice of April 28, 1994, did not contain any special conditions

for Benoit's return to active duty, Benoit asserts that an

unnamed lieutenant in the Department informed him that he would

undergo a seguence of weekly or monthly performance evaluations

upon his return. Complaint at 5 23; Prozzo Affidavit, Ex. 30.

Instead of returning to work, the plaintiff resigned, charging

constructive termination. Prozzo Affidavit at 5 36.

The instant lawsuit followed. To date discovery has been

limited to the issue of gualified immunity.

7 Discussion

The role of summary judgment is "to pierce the boilerplate

of the pleadings and assay the parties' proof in order to

determine whether trial is actually reguired." Snow v.

Harnischfeger Corp.,

(1st Cir. 1993) (guoting

Wynne v. Tufts Univ. Sch. of Medicine,

(1st

Cir. 1992), cert, denied, 113 S. C t . 1845 (1993)), cert, denied,

115 S. C t . 56 (1994). The court may only grant a motion for

summary judgment where 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 party seeking

summary judgment bears the initial burden of establishing the

lack of a genuine issue of material fact. Celotex Corp. v.

Catrett,

(1986); Quintero de Quintero v.

Aponte-Rogue,

(1st Cir. 1992). The court

must view the entire record in the light most favorable to the

plaintiff, "'indulging all reasonable inferences in that party's

favor.'" Mesnick v. General Elec. Co.,

(1st

Cir. 1991) (guoting Griqqs-Ryan v. Smith,

(1st

Cir. 1990)), cert, denied, 112 S. C t . 2965 (1992). However, once

the defendant has submitted a properly supported motion for

8 summary judgment, the plaintiff "may not rest upon mere allega­

tion or denials of [their] pleading, but must set forth specific

facts showing that there is a genuine issue for trial." Anderson

v. Liberty Lobby, Inc.,

(1986) (citing Fed. R.

Civ. P. 56(e)). Even when a defendant uses gualified immunity as

a basis for summary judgment, the court must remain " [c]onsistent

with the method of Fed. R. Civ. P. 56(c)." Buenrostro v.

Collazo,

(1st Cir. 1992) .

" [G]overnment officials performing discretionary functions

generally are shielded from liability for civil damages insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have

known." Harlow v. Fitzgerald,

(1982). To be

"clearly established, " the contours of right must be sufficiently

clear so that a reasonable official would understand that his

actions violate that right. Anderson v. Creighton,

(1987) .

Although Harlow sets forth the gualified immunity standard

in objective terms, in a mixed-motive case the court's gualified

immunity analysis also reguires consideration of whether the

defendant did, in fact, intentionally violate the plaintiff's

rights. See Broderick v. Roache,

(1st

Cir. 1993); Feliciano-Anqulo v. Rivera-Cruz,

(1st Cir. 1988) ("Harlow will not bar inquiry into a defendant's state

of mind when the applicable law makes the defendant's state of

mind (as distinct from defendant's knowledge of the law) an

essential element of plaintiff's constitutional claim"). Thus,

where the plaintiff has adduced evidence from which a jury

reasonably could find that the plaintiff's protected speech

motivated the adverse employment action, the issue of qualified

immunity cannot be resolved until the ultimate question of the

plaintiff's intent is determined by the finder of fact.

(determination of the defendant's subjective motivation for

the adverse employment action "is a predicate to any meaningful

qualified immunity analysis"). Conversely, where the plaintiff

fails to establish a genuine dispute whether the plaintiff's

exercise of a protected right was a substantial or motivating

factor in the defendant's adverse employment decision, the

defendant may invoke qualified immunity. See, e.g., Harris v.

Eichbaum,

. (D. Md. 1986).

I. Count One: Retaliation Against Benoit

The plaintiff asserts that Prozzo violated his First

Amendment right to free speech by retaliating against him for

bringing matters of public concern to the Department's attention.

In its motion, the defendant argues that the plaintiff's allega-

10 tions do not constitute a cognizable First Amendment claim

because the plaintiff did not engage in protected speech

regarding matters of public concern. In addition, the defendant

argues that the allegations lack a factual nexus between the

concerns voiced by Benoit and those departmental decisions that

adversely affected Benoit.

It is well established that a state "cannot condition public

employment on a basis that infringes the employee's constitu­

tionally protected interest in freedom of expression." Connick

v. Myers,

(1983). Moreover, "First Amendment

protection applies when a public employee arranges to communicate

privately with his employer rather than to express his views

publicly." Connick,

(citing Givhan v. Western

Line Consol. Sch. Dist.,

(1979)). The First

Circuit has endorsed a three-step analysis to determine whether a

public employee has presented an actionable First Amendment

claim. O'Connor v. Steeves,

(1st Cir. 1993),

cert, denied, 114 S. C t . 634 (1993). The two initial steps

determine whether the plaintiff's speech is constitutionally

protected. The third step addresses the defendant's motivation

for imposing the adverse action about which the plaintiff

complains. The court addresses each step seriatim.

11 Step 1: Matter of Public Concern

The court must make a threshold determination, "on the basis

of 'the content, form, and context of a given statement, as

revealed by the whole record,1 whether the employee was speaking

'as a citizen upon matters of public concern,1 or, alternatively,

'as an employee upon matters only of personal interest.1"

0 1Connor,

(1st Cir. 1993) (guoting Connick,

). "If an employee's speech 'cannot be fairly

characterized as constituting speech on a matter of public

concern,1 then its First Amendment value is low and 'a federal

court is not the appropriate forum in which to review the wisdom

of a personnel decision1 arising therefrom."

(guoting

Connick,

).

The First Circuit has noted that the circumstances of a

particular case may govern the appropriate approach under

Connick. Id. at 913. "Where a public employee speaks out on a

topic which is clearly a legitimate matter of inherent concern to

the electorate, the court may eschew further inguiry into the

12 employee's motives as revealed by the 'form and context1 of the

expression." Id. at 913-14. In contrast,

public-employee speech on a topic which would not necessarily qualify, on the basis of its content alone, as a matter of inherent public concern (e.g., internal working conditions, affecting only the speaker and co­ workers) , may require a more complete Connick analysis into the form and context of the public-employee expression, 'as revealed by the whole record,1 . . . with a view to whether the community has in fact manifested a legitimate concern in the internal workings of the particular agency or department of government, and, if so, whether the 'form1 of the employee's expression suggests a subjective intent to contribute to any such public discourse.

Id. at 914 (citation and emphases omitted).

The plaintiff's claim requires a complete Connick analysis

because his speech is not necessarily of "inherent concern" to

the electorate. Nonetheless, Benoit's statements concerning the

vaccination of police officers, modification of communication

policies, response to bank alarms, and misuse of handguns do

present issues of public concern. Although not necessarily aware

of inter-departmental police policy and procedure, the public has

an obvious and legitimate interest in the efficiency, effective­

ness, and safety of police departments. Similarly, the public is

interested in allegations of police misconduct, such as the

careless brandishing of firearms reported by the plaintiff.

Significantly, the plaintiff's affidavit and his past receipt of

numerous achievement awards indicate that his concern for public

13 welfare, and not just his personal well-being, led him to speak

out.

Benoit's form of expression was consistent with the usual

method of addressing issues of concern within the ranks of the

Claremont Police Department. See generally Police Manual for the

Police Department of the City of Claremont. The plaintiff, upon

identifying a perceived deficiency, notified his commanding

officer. This is a logical means of resolving issues in a law-

enforcement environment. Accordingly, the court finds that the

form in which the plaintiff expressed matters of concern was

appropriate under the circumstances.

The context of the communications, for the most part, is

consistent with the plaintiff's position that he was a public

employee notifying superiors of deficiencies in the Department's

policies and practices. There is no indication from the record

that the plaintiff communicated his concerns for reasons other

than to address these perceived deficiencies. The subject matter

of the plaintiff's concerns, such at those involving the misuse

of firearms, improper response to bank alarms, and inadeguate

communication procedures, arguably involves the safety of other

officers and the general public. The plaintiff's attention to

matters of public concern is well documented and the court finds

14 that he has made the requisite showing that the topic of his

speech was of public concern.

Step 2: Pickering Balancing Test

Having determined that an employee has spoken on a matter of

public concern,

the court must balance the strength of the employee's First Amendment interest, and any parallel public interest in the information which the employee sought to impart, against the strength of the countervailing governmental interest in promoting efficient perfor­ mance of the public service the government agency or entity must provide through its employees.

0'Connor,

(citing Pickering v. Board of Educ.,

(1968)). Insofar as self-interest is found to

have motivated public-employee speech, the communication is

accorded less weight than is speech on matters of public concern

intended to serve the public interest. Id. at 915 (construing

Pickering) .

The legitimate interest of the citizenry in the type of

information disseminated by the plaintiff represents a public

benefit entitled to substantial weight in the Pickering balance.

0'Connor,

(quoting Versarge v. Township of

Clinton,

(3d Cir. 1993) ("On plaintiff's side

of the balance, we must also consider the interests of the public

in plaintiff's speech.")). The court has found, supra, that

15 Benoit's expressions involve matters of public safety of

traditional concern to the electorate. The strong public concern

for such disclosures supplants whatever personal interest Benoit

also may have furthered in his communications and, as such, the

Pickering scale weighs heavily in favor of First Amendment

protection.

The Claremont Police Department, on the other hand, has

failed to identify any substantial interest in curtailing the

disclosure of matters affecting public or police officer safety.

Moreover, the plaintiff's speech was circumscribed to the extent

that he voiced concerns through appropriate police channels and

not directly to the general public. The court finds that the

Department's motivations do not outweigh Benoit's First Amendment

interests. Accordingly, the court concludes that the plaintiff's

speech is constitutionally protected, at least to the extent that

it was directed to matters of public concern.

Step 3: Substantial or Motivating Factor

The third part of the analysis reguires the public employee

to "show that the protected expression was a substantial or

motivating factor in the adverse employment decision." 0'Connor,

(citing M t . Heathy City Sch. Dist. Bd. of Educ.

v. Dovle,

(1977)). As discussed supra, the

16 plaintiff must come forth with more than a mere allegation of

malice.

Benoit has failed to adduce evidence to support his claim

that the defendant retaliated against him for his protests of

departmental policies and procedures. Rather, the undisputed

factual record indicates only that the defendant responded to the

plaintiff's concerns in a timely and serious manner. For

example, within two and one-half months of the plaintiff's

complaint about the handling of rabid animals, Prozzo updated the

Department's procedures by issuing a special order. See Prozzo

Affidavit, Ex. 12. Similarly, the plaintiff's proposed

modification to emergency communication procedures and response

to bank alarms where reviewed by Prozzo and it was determined

that existing procedures should not be modified. The court finds

that Prozzo's response to the plaintiff's grievances does not

support an inference that Prozzo was motivated by retaliation.

Likewise, the plaintiff has failed to demonstrate a genuine

dispute of fact on the guestion of whether Prozzo handled the

allegation of handgun misuse in anything other than a reasonable

manner. In light of the plaintiff's failure to present evidence

to the contrary, the court finds that the Department acted

without malice in declining to investigate stale claims of

17 misconduct, particularly because no other incidents of handgun

misuse were reported during the three-year period that followed.

The plaintiff's subseguent report of handgun misuse on

December 26, 1993, concerned a recent incident and it is

undisputed that Prozzo promptly ordered an investigation into the

unsafe handling of firearms. As a result of the investigation,

the offending officer was reprimanded with a written warning, the

standard form of discipline for an initial violation of

departmental procedure. Moreover, the investigation led to the

January 3, 1994, issuance of a special order prohibiting the

removal of firearms from secured areas without a justified

purpose. Prozzo's handling of these matters reflects sensitivity

to both the plaintiff's concerns and the welfare of the

Department, and thus stands in stark contrast to the plaintiff's

bald assertions that "Chief Prozzo was determined to get rid of

me." Benoit Affidavit at 5 4.

The court further finds that there is no genuine dispute of

material fact that the plaintiff's transfer to the night shift

was in any way motivated by a malicious intent to violate the

plaintiff's exercise of his First Amendment rights. That is, the

plaintiff has failed to adduce evidence to challenge the

defendant's well-documented explanation that the plaintiff was

reassigned for a legitimate reason, i.e., to staff the night

18 shift with the least senior officer from the day shift. The

plaintiff's failure to support his claim of retaliation is

underscored by the fact that Benoit was not reassigned until the

issue of his seniority had been resolved through the formal union

grievance process.

The final bases for the plaintiff's claim of retaliation are

his being ordered to undergo a psychological evaluation and the

seizure of his gun and badge. These actions followed Benoit's

testimony before the Commission. The plaintiff does not dispute

that the police chief possesses the discretionary authority to

reguire any officer to submit to a psychological evaluation.

Given the level of public trust and unigue stress borne by police

officers, the court finds that the plaintiff has failed to offer

any evidence from which a reasonable jury could find that his

protected speech was a substantial or motivating factor in

Prozzo's ordering the psychological exam. This conclusion is

consistent with Prozzo's knowledge of the plaintiff's past

hospitalization for depression, and the fact that the plaintiff

was placed on leave with pay even though the collective

bargaining agreement permits suspension without pay. The mere

fact that the psychologist ultimately concluded that the

plaintiff was fit for duty does not undermine what was otherwise

a non-retaliatory decision to order the evaluation.

19 The court also finds that the plaintiff has failed to

demonstrate a genuine dispute of fact as to whether Prozzo

retaliated when he seized the plaintiff's gun and badge while he

was on administrative leave pending the outcome of the

psychological evaluation. The plaintiff has presented no

evidence which taken in a light most favorable to him, reasonably

could support a contrary finding.

The court concludes that the plaintiff's bare allegations of

retaliation, unsupported by a proper evidentiary basis, do not

present a genuine factual dispute whether the plaintiff's

protected expressions were a substantial or motivating factor in

the adverse employment decisions. Rather, the only conclusion

supported by the evidence is that the defendant had an

objectively reasonable basis for his conduct.

Based on its review of the record before it, the court finds

that the defendant's conduct does not constitute a violation of a

clearly established right of which a reasonable person would have

been aware. Accordingly, the defendant is entitled to gualified

immunity.

II. Count Two: Retaliatory Constructive Discharge

In count two, the plaintiff alleges that the defendant

humiliated him, portrayed his as mentally ill, and singled him

20 out for heightened scrutiny because he engaged in protected

activity.3 The plaintiff further asserts that this conduct

constituted an unlawful constructive discharge from his position

as a police officer. In its motion, the defendant again responds

that he is shielded from liability by the doctrine of gualified

immunity.

"' [C]onstructive discharge1 has been defined as 'an onerous

transfer, having the purpose and effect of forcing the

transferred employee to guit the employment.1" Pedro-Cos v.

Contreras,

(1st Cir. 1992) (guoting Newspaper Guild

of Boston v. Boston Herald-Traveler Corp.,

(1st

Cir. 1956)). The "burden imposed upon the employee must cause,

and be intended to cause, a change in his working conditions so

difficult or unpleasant as to force him to resign."

(guoting

Crystal Princeton Refining Co.,

, 1069 (1976)).

Count two asserts liability for the same conduct alleged in

count one, albeit under a different legal theory. The court has

ruled, supra, that the plaintiff has presented no evidence from

which a reasonable jury could find that the defendant retaliated

3Ihe plaintiff also alleges that an unnamed lieutenant singled him out for weekly or monthly performance reviews. The court need not consider the allegations for purposes of its gualified immunity analysis because the plaintiff has neither named the lieutenant as a defendant nor asserted that Prozzo is individually liable for another officer's conduct.

21 against him for engaging in protected activities. Thus, to the

extent that Prozzo may be sued in his individual capacity for

wrongful discharge, such a claim also is barred by gualified

immunity.4

Conclusion

The defendant's Motion for Summary Judgment (document no.

13) is granted with respect to counts one and two.5

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge November 3, 1995 cc: James H. Gambrill, Esguire John J. Yazinski, Esguire Andrew A. Prolman, Esguire David A. Garfunkel, Esguire

4The defendant also argues that Prozzo, as a police department employee, cannot be liable for wrongful constructive discharge because he was not the plaintiff's employer. Memorandum of Law in Support of Defendant's Motion for Summary Judgment at 24 (citing Cloutier v. Great Atl. & Pac. Tea, Co.,

(1991)). The court need not address the argument given the application of gualified immunity.

5In count three, the plaintiff claims that the defendant deprived him of his "constitutional rights not to be harmed by a Claremont Police Department policy or custom of failure to train its force of officers to avoid and control situations of clear danger to his safety and well being, and that of the public." Complaint at 55 37-40. In his motion, Prozzo asserts that count three does not name him as a defendant in his individual capacity. The plaintiff has not disputed this contention and, accordingly, the viability of this claim need not be addressed at this time.

22