Dyne v. Babin CV-97-31-SD 11/10/98 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Mikel Dyne

v. Civil No. 97-31-SD

Louis P. Babin, individually and in his official capacity as Chief of Police for the Littleton Police Department; Kathryn Taylor, individually and in her capacity as former Littleton Selectperson; Donald Craigie, individually and in his capacity as former Littleton Selectperson; Earl Ellinqwood, individually and in his capacity as former Littleton Selectperson; and Town of Littleton, New Hampshire

O R D E R

Plaintiff Mikel Dyne, a former member of the Littleton, New

Hampshire, police department, brings this action against the Town

of Littleton (town), its police chief, and three of its former

selectpersons, claiming violations of his civil rights under

(Counts I, II, and III) and making state law claims

(Counts IV, V, and V I ) .

Count I alleges that the defendants violated Dyne's First

Amendment right to free speech by refusing to allow him to speak out against subordinate officers whom he learned were involved in

illegal conduct and by instituting new working conditions in

retaliation for having voiced his concerns. The remaining counts

are all based upon Dyne's alleged constructive and/or actual

discharge. Counts II and III allege a deprivation of substantive

and procedural due process in violation of the Fourteenth

Amendment. Count IV alleges wrongful termination. Count V is a

breach of contract claim, and Count VI alleges intentional

interference with contractual relations.

Currently before this court is defendants' motion for

summary judgment,1 to which plaintiff objects.

Background

_____ Mikel Dyne began his career as a police officer with the

Town of Littleton in April 1982 and became a sergeant in April

1991. As a full-time police officer, his tenure was governed by

New Hampshire Revised Statutes Annotated (RSA) 41:48, which

provides that full-time officers "shall continue to hold such

^Although the motion and memorandum of law indicate they are from the Town of Littleton only, without reference to the other defendants, the court assumes they were submitted on behalf of all defendants. The motion raises qualified immunity on behalf of the individual defendants; furthermore, Attorney Donald Gardner entered an appearance for all defendants, and the court has not received a change of appearance indicating that the individual defendants have retained new counsel. 2 office during good behavior, unless sooner removed for cause by

the selectmen, after notice and hearing, or unless the town has

rescinded its action as provided in 41:47." The terms and

conditions of plaintiff's employment were governed by a

collective bargaining agreement (CBA) negotiated between the

police union and the town and signed in March 1992. The CBA

provided that disciplinary action, including discharge, could

only be taken for "just cause" and outlined a three-part

grievance procedure for disputes "involving the interpretation,

application or alleged violation of any provision of this

agreement." Defendants' Motion for Summary Judgment, Exhibit E

at 6.

Between November 1992 and January 1993, Dyne became aware of

two incidents involving Littleton police officers which he

believed to be illegal. The first incident involved a gun

allegedly taken from the evidence room. Officer Herb Lloyd had

told another officer that he was interested in keeping the gun,

which was evidence acquired in an investigation in which Lloyd

participated. When it was discovered that the gun was missing.

Chief Babin told the entire force there would be a major problem

if the weapon was not returned. Shortly thereafter, the gun was

found in another officer's locker. That officer and Officer

Lloyd were polygraphed. The polygraph indicated that the denial

3 by the officer in whose locker the gun was found was more

credible than Lloyd's denial.

The second incident occurred just two months later, when

Lloyd allegedly ordered a subordinate officer to strip-search a

black youth who was not under arrest and had not been officially

detained.

After learning of the two incidents, plaintiff met with

Chief Babin and recommended that Lloyd be terminated. Chief

Babin elected not to discipline anyone. Dyne repeatedly raised

this issue with the chief until Dyne left the Littleton police

department on January 19, 1994.

During this period, the terms and conditions of plaintiff's

employment allegedly changed. Specifically, the police

department opted out of a previous commitment it had made to Dyne

to help fund a burglary investigation he was conducting; he was

required to complete extensive daily log sheets; and he was

ordered to attend every session of a violence intervention class

for the third grade in the Littleton Elementary School.

On December 22, 1993, Dyne submitted a letter of resignation

to Chief Babin to be effective on January 5, 1994. After

plaintiff explained to the chief the reasons prompting him to

resign, the chief told Dyne that changes would be made.

Consequently, Dyne withdrew his letter. When the issues

4 surrounding the misconduct were not addressed, plaintiff

resubmitted his letter of resignation on January 12, 1994, to be

effective January 19. On January 14, after hearing a rumor that

he was being forced out of the department. Dyne attempted once

again to rescind his letter of resignation. The chief stated

that plaintiff's resignation had been accepted by the

selectpersons of the town. Consequently, Dyne left his position

on January 19, 1994, and turned in his equipment one day later.

In September 1996, Dyne learned that the Littleton selectpersons

had not accepted his resignation in January 1994 as Chief Babin

had indicated.

On January 17, 1997, Dyne filed both a Whistleblower's

Protection Act, RSA 275-E, complaint with the New Hampshire

Department of Labor and a complaint with this court. On March 3,

1998, the New Hampshire Department of Labor conducted a hearing

regarding Dyne's complaint. After hearing plaintiff's testimony,

the hearing officer dismissed the complaint, holding that Dyne

failed to avail himself of the grievance procedures available to

him through the CBA as required by the Whistleblower's Protection

Act. See Defendants' Memorandum, Exhibit F.

5 Discussion

1. Suramary 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." Summary judgment is a procedure that

involves shifting burdens between the moving and nonmoving

parties. Initially, the onus falls upon the moving party to aver

"'an absence of evidence to support the nonmoving party's case.'"

Garside v. Osco Drug, Inc.,

(1st Cir. 1990)

(quoting Celotex Corp. v. Catrett,

(1986)).

Once the moving party satisfies this requirement, the pendulum

swings back to the nonmoving party, who must oppose the motion by

presenting facts that show that there is a "genuine issue for

trial." Anderson v. Liberty Lobby, Inc.,

(1986) (citing Fed. R. Civ. P. 56(e)); LeBlanc v. Great American

Ins. C o .,

(1st Cir. 1993), cert, denied,

(1994). In determining whether or not summary judgment is

appropriate, the court construes the evidence and draws all

6 justifiable inferences in the nonmoving party's favor.2 See

.

2. Res Judicata

Plaintiff argues that the finding in the WhistleBlower's

Protection Act decision that the terms and conditions of Dyne's

employment were negatively impacted should be treated as res

judicata. Plaintiff's Objection at 8. The doctrine of res

judicata prohibits an attempt to relitigate "precisely the same

question, particular controversy, or issue, which has been

necessarily tried and finally determined" in an earlier

litigation. See Hallisev v. Deca Corp.,

,

(1995). After hearing plaintiff's testimony, the

hearing officer dismissed the case because Dyne failed to utilize

the grievance procedures available to him. The officer's finding

2Defendants argue that Dyne's allegations are based upon inadmissible evidence and thus should not be considered by this court. See Defendants' Reply to Plaintiff's Objection at 3. Defendants are correct that courts shall not consider hearsay statements in ruling on a motion for summary judgment, see Stone and Michaud Ins., Inc. v. Bank Five for Sav.,

(D.N.H. 1992); however. Dyne's testimony of out-of-court statements concerning the alleged police misconduct and of conversations he had with Chief Babin and former Town Manager Michael Farrell does not fall into the category of hearsay. His testimony is not offered to prove the truth of those statements, but rather for the nonhearsay purpose of proving that the statements were made. Accordingly, the testimony is not excluded from this court's consideration. 7 that the conditions of Dyne's employment were adversely affected

was not necessary to the judgment and thus is not entitled to

preclusive effect. See Monarch Life Ins. Co. v. Ropes & Gray,

, 978 (1st Cir. 1995) ("In order to invoke collateral

estoppel [defendant] must demonstrate that . . . [the court's]

resolution of that issue of law or fact was essential to its

judgment (i.e., necessary to its holding).")

3. Statute of Limitations

The limitations period for Counts I, II, and III, personal

injury actions brought under section 1983, is governed by the law

of the forum state. See Wilson v. Garcia,

(1985). The remaining counts are either contract or personal

injury actions. Since the statute of limitations for both

personal injury and contract actions in New Hampshire is three

years, RSA 508:4, I, each of Dyne's claims must have accrued no

more than three years prior to January 17, 1997, the date he

filed suit.

In a contract action, the claim accrues when the contract

breach occurs, see Bronstein v. GeoEnvironmental, Inc., 140 NH

253, 255,

(1995); in a tort action, the claim

accrues when the plaintiff should reasonably know of the damage.

See Conrad v. Hazen, 140 NH 249, 252,

(1995).

8 The jurisprudence of section 1983 actions directs courts to

examine federal law to determine the accrual period. See Calero-

Colon v. Betancourt-Lebron,

(1st Cir. 1995). Under

federal law, accrual starts when the plaintiff "knows, or has

reason to know, of the injury on which the action is based."

Rivera-Muriente v. Agosto-Alicea,

(1st Cir.

1992). However, a claim alleging a violation that occurs over an

extended period is timely so long as some of the challenged acts

fall within the statutory period. See Bruno v. Western Electric

Co.,

(10th Cir. 1987); Goldman v . Sears,

Roebuck & Co.,

(1st Cir. 1979), cert, denied,

(1980). A claim will not be saved, however, if only

the consequences of the alleged violation fall within the

limitations period. De Leon Otero v . Rubero,

(1st

Cir. 1987).

Two relevant questions arise. First, when did Dyne know or

have reason to know of the injury on which his action is based?

Second, if Dyne knew of the injury before January 17, 1994, has

he alleged sufficient evidence for a fact finder to conclude that

the violations continued to occur, eventually falling within the

statutory period? Defendants argue that Dyne knew of his alleged

injury by either December 22, 1993, or January 5, 1994, the dates

on which he submitted his letters of resignation. Defendants'

9 Motion for Summary Judgment at 23. Therefore, defendants argue.

Dyne's claims are time barred. Dyne rebuts that the injury did

not occur until he left the town's employ on January 19, 1994.

Plaintiff's Objection at 14.

Thus the dispositive issue is whether his injury occurred

prior to or, rather, the actual moment he left the Littleton

police department. The United States Supreme Court addressed a

similar question in Delaware State College v. Ricks,

(1980), a case in which the plaintiff, a

professor, was denied tenure in June 1974. The college then

offered him a terminal contract that expired one year later, in

June 1975. In September 1977, Ricks brought a civil action under

, alleging racial discrimination. Actions

brought under section 1981 must be filed within three years of

the alleged unfair employment decision. Because the allegedly

unlawful act was the denial of tenure, the United States Supreme

Court held that the plaintiff's claim accrued in June of 1974,

not on the date his employment was terminated. The termination

date itself was merely the "inevitable consequence" of prior

discrimination and thus did not trigger the statute of

limitations.

. Because the mere continuation of his

employment was insufficient to prolong the life of his cause of

action, his claim was time barred.

10 The instant case, however, is distinguishable. The Court in

Ricks put great emphasis on the finality of the college's

decision to deny the plaintiff tenure. See i d . at 262. There

was nothing the plaintiff alone could do to prevent his eventual

termination from employment. By contrast. Dyne's letters of

resignation lacked this definitive quality. He withdrew the

first letter when Chief Babin promised that conditions would

improve, and he attempted to withdraw the second. Moreover, Dyne

avers that until the day he left, he continued to speak with

Chief Babin and Town Manager Farrell over the reasons which

forced him to leave. See Plaintiff's Objection at 14. A

factfinder could conclude that until Dyne actually left his

employment on January 19, 1994, he was hopeful that the

conditions of his employment would improve. Thus, until he

actually left, his constructive discharge was undetermined.

Based on this record. Dyne's injury did not occur until January

19, 1994.

Count I alleges that, in retaliation for having exercised

his First Amendment right to free speech, defendants instituted

new working conditions so difficult that Dyne was forced to

resign. Having submitted his first letter of resignation to

Chief Babin on December 22, 1993, Dyne must have known of the

retaliation against him by that date. The final alleged

11 retaliatory act, however, was the constructive discharge itself.

Thus the alleged violation of his First Amendment rights

continued to occur, eventually falling within the limitations

period. Likewise, Counts II through VI, all based upon Dyne's

alleged constructive discharge, are not time barred as a matter

of law.

4. Qualified Immunity

The individual defendants assert the affirmative defense of

qualified immunity from damages as to Dyne's section 1983 claims.

Qualified immunity shields government officials performing

discretionary functions 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). Whether

an official protected by qualified immunity may be held

personally liable for an allegedly unlawful action generally

turns on the "objective legal reasonableness" of the action,

assessed in light of the legal rules that were "clearly

established" at the time it was taken.

.

"To be 'clearly established,' the 'contours of the right

must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.'" Quintero

12 de Quintero v. Aponte-Rocrue,

(1st Cir. 1992)

(quoting Anderson v. Creighton,

(1987)). "This

is not to say that an official action in question has previously

been held unlawful, see Mitchell v. Forsyth,

, 535

n.12 (1985), but it is to say that in the light of pre-existing

law the unlawfulness must be apparent." Anderson, supra,

. "If the law was clearly established, the immunity

defense should ordinarily fail, since a reasonably competent

public official should know the law governing his conduct."

.

While the merits of Dyne's First and Fourteenth Amendment

claims are addressed in sections 4 and 5 below, the relevant

questions here are (1) whether the law governing those claims was

clearly established at the time the individual defendants

allegedly acted and (2) whether a reasonable official would have

understood that what he was doing violated that right.

a. Chief Babin

Count I alleges a deprivation of Dyne's First Amendment

right to free speech. In Mt. Healthy Bd. of Educ. v. Doyle,

(1977), the Supreme Court established that adverse

action taken by a public employer against an employee motivated

by the employee's exercise of constitutionally protected speech

13 is a violation of the First Amendment. The First Circuit has

used a three-pronged test to determine whether the employee's

First Amendment right has been violated, focusing on (1) whether

the employee was speaking as a citizen upon matters of public

concern; (2) whether the employee's right to speak out outweighs

the governmental interest in promoting efficient performance of

public service; and (3) whether the government would have reached

the same decision in the absence of the protected conduct. See

0'Connor v . Steeves,

(1st Cir. 1993).

In light of this court's finding that genuine and material

factual issues exist as to whether Chief Babin violated Dyne's

First Amendment right to free speech, see section 5, infra, the

chief is not entitled to qualified immunity at this summary

judgment stage. The court finds and rules that the law governing

Dyne's First Amendment claim was clearly established at the time

of Chief Babin's conduct and that a reasonable police chief would

not have believed that retaliating against an officer for having

voiced his concerns about illegal activity within the department

was lawful in light of this clearly established law.

Counts II and III allege a deprivation of substantive and

procedural due process. In support of his claims. Dyne asserts

two theories by which his resignation could be found to be

involuntary, thus depriving him of his property right to

14 continued employment. First, he claims that in retaliation for

having voiced his concerns to the chief, his working conditions

became so difficult that he was forced to resign. Thus, Dyne

argues, his resignation amounted to a constructive discharge.

Second, apparently in the alternative, he claims that the chief's

statement that Dyne's resignation had been accepted, thereby

preventing Dyne from withdrawing his resignation before its

effective date, amounted to an actual discharge.

As a full-time police officer since April 1982, Dyne's

tenure was governed by RSA 41:48, which gave him an expectation

of continued employment. Thus, at the time Chief Babin allegedly

acted, it was clearly established that Dyne had a property

interest in his employment. It was also clearly established that

a state actor cannot constitutionally deprive an employee of a

property interest without due process. See Board of Regents v.

Roth,

(1972); Cleveland Bd. of Educ. v.

Loudermill,

(1985). This court finds and rules

that the law governing Dyne's Fourteenth Amendment substantive

and procedural due process claims was clearly established at the

time of his alleged constructive discharge and that a reasonable

police chief would not believe that instituting new working

conditions so difficult or unpleasant that they amounted to a

constructive discharge was lawful. Thus Chief Babin is not

15 entitled to qualified immunity with respect to Dyne's

constructive discharge claim.

Chief Babin is immune, however, from Dyne's claim of actual

discharge. The First Circuit has not concluded that a

misrepresentation by an employer or its agent concerning the

right of an employee to withdraw his or her letter of resignation

may amount to an actual discharge. Moreover, while the chief's

statement may have turned out to be untrue, there is no evidence

suggesting that the chief acted in bad faith or knew his

statement was false at the time he made it. See Plaintiff's

Objection at 10. Thus, even had the law been clearly

established, the chief could not have reasonably known that his

statement violated a constitutionally protected right.

d. Town Selectpersons

The town selectpersons named as defendants in this action

are immune from plaintiff's section 1983 claims. With respect to

his First Amendment claim. Dyne has not presented evidence that

former selectpersons Taylor, Craigie, and Ellingwood were aware

of the retaliatory acts taken against him. With respect to his

Fourteenth Amendment claims, Dyne does not allege that the

selectpersons knew his resignation was the result of a

constructive discharge and thus was without just cause. They

16 also could not have believed that the mere act of accepting

Dyne's resignation deprived him of his constitutional rights.

Thus defendants Taylor, Craigie, and Ellingwood, having no

knowledge of the alleged constitutional violations, are entitled

to qualified immunity.

5. First Amendment

Count I alleges that the defendants violated plaintiff's

First Amendment right to free speech by refusing to allow him to

speak out against subordinate officers who he learned were

involved in illegal conduct and by instituting new working

conditions in retaliation for having voiced his concerns. Dyne

has not presented support for the theory that Chief Babin, as his

superior officer, was obligated to institute his recommendations

that the officers involved in the alleged illegal conduct be

disciplined or dismissed. The record clearly indicates that

Chief Babin did not prevent Dyne from voicing his concerns.

Defendant's Memorandum, Exhibit D at 123-125. Thus plaintiff's

claim that the chief violated his First Amendment right to free

speech by refusing to allow him to speak out against the officers

is without merit.

Plaintiff's second theory, however, raises a number of

compelling questions. The First Circuit uses a three-pronged

17 test to determine whether a public employee has an actionable

claim for the infringement of his or her First Amendment rights.

See 0'Connor, supra,

. First, the court must

determine whether the employee was speaking "as a citizen upon

matters of public concern" or, alternatively, "as an employee

upon matters only of personal interest." Connick v. Myers,

(1983). In 0'Connor, the plaintiff, a former

superintendent of public works, was discharged following a feud

with the town selectmen. O'Connor brought suit against the town

and three selectmen for violating his First Amendment right to

free speech by discharging him for having revealed misconduct by

an incumbent elected official. The court found that the

plaintiff's revelations directly implicated a topic of inherent

concern to the community. See 0'Connor, supra,

;

see also Brasslet v. Cota,

, 844 n.14 (1st Cir. 1985)

(fire chief's public commentary on available fire protection and

on town council's actions in dealing with associated problems

plainly qualified as matters of inherent "public concern"). Like

the plaintiff in 0'Connor, Dyne's discussion with Chief Babin

regarding the alleged illegal and unethical conduct of fellow

police officers, including tampering with evidence and ordering a

strip-search of a black youth who had not been arrested or

18 officially detained, constituted a matter of legitimate public

concern.

Second, the court must "balance the strength of the

employee's First Amendment interest and any public parallel

interest in the information which the employee sought to impart,

against the strength of the countervailing governmental interest

in promoting efficient performance of the public service the

government agency or entity must provide through its employees."

0'Connor, supra,

(citing Pickering v. Board of

Educ.,

(1968)). The court in 0'Connor found a

strong public interest in the plaintiff's disclosures of a public

official's alleged abuse of office, thus heavily weighting the

scale in favor of First Amendment protection against retaliation

for the plaintiff's speech. 0'Connor, supra,

.

Although the court addressed abuses by an elected official,

alleged abuses by appointed police officers are sufficiently

analogous to weigh the scale in favor of Dyne's First Amendment

protection. Moreover, in the instant action, the town has not

presented evidence supporting its legitimate interest as employer

in curtailing the specific disclosures which plaintiff alleges

were the basis for his constructive discharge. Viewing the record

in the light most favorable to plaintiff, this court cannot

conclude that the town's interest in suppressing Dyne's speech

19 outweighed the importance of the legitimate public interest in

his discussions with the police chief concerning the alleged

police misconduct.

Third, the public employee "must show that the protected

expression was a substantial or motivating factor in the adverse

employment decision; and, if the plaintiff meets this test, the

defendant governmental entity must be afforded an opportunity to

show 'by a preponderance of the evidence that [it] would have

reached the same decision . . . even in the absence of the

protected conduct.'" 0'Connor, supra,

(quoting

Mt. Healthy, supra,

). The town argues that, even

if this court finds that plaintiff's resignation was involuntary,

there is no evidence that his speech was a substantial or

motivating factor in his discharge. Thus, defendant argues,

plaintiff's First Amendment claim is without merit. In response.

Dyne alleges that the terms and conditions of his employment

became intolerable only after he continued to urge the chief to

address the alleged misconduct and discipline the officers

involved. It is indeed notable that, after Dyne had worked as a

full-time Littleton police officer and/or sergeant for more than

ten years, the conditions of his employment allegedly began to

change shortly after he voiced his concerns about police

misconduct to Chief Babin. See Mesnick v. General Elec. Co., 950

(1st Cir. 1991) ("temporal proximity of an

employee's protected activity to an employer's adverse action"

may be circumstantial evidence of retaliation allowing plaintiff

to survive summary judgment). Dyne's supported allegations are

sufficient to create a genuine and material factual issue as to

whether the chief's actions were motivated by a desire to

retaliate against him for exercising his First Amendment rights.

Moreover, the town has not presented evidence that Chief Babin

would have acted the same way had Dyne not constantly voiced his

concerns.

For the abovementioned reasons, this court finds that Dyne

has alleged sufficient evidence for a reasonable jury to find

that the defendants violated his First Amendment right to free

speech.

6. Fourteenth Amendment

Dyne claims that he was deprived of his "liberty and/or

property interest" in continued employment by defendants acting

under color of state law, thus by state action, without due

process of law. See Complaint at 12. To claim entitlement to

the protections of the due process clause, a plaintiff must show

that he has been deprived of a constitutionally protected liberty

or property interest by some form of state action. See Daniels

21 v. Williams,

(1986). Otherwise, the

constitutional right to due process is not implicated.

a. Liberty Interest

Plaintiff alleges that defendants' conduct deprived him of a

liberty interest. To state such a claim. Dyne would have to

allege facts tending to show that defendants made charges against

him that "might seriously damage his standing and associations in

his community" or otherwise "imposed on him a stigma or other

disability that foreclosed his freedom to take advantage of other

employment opportunities."

.

There is nothing in the record to support such a finding.

b. Property Interest

It is undisputed that, as a full-time police officer. Dyne

had a property interest in continued employment. See RSA §41:48.

The more difficult question is whether he was deprived of that

interest. Although courts have typically addressed actual

Fourteenth Amendment deprivations, constructive deprivations have

been recognized as well. See Reed v. Village of Shorewood,

(7th Cir. 1983). If, as Dyne indicates, his

resignation was so involuntary that it amounted to a constructive

discharge, it must be considered a deprivation by state action

triggering the protections of the substantive and procedural

22 components of the due process clause. See Stone v. University of

Maryland Medical System Corp.,

(4th Cir. 1988).

If, as the town contends. Dyne voluntarily resigned, then he

surrendered his property interest in continued employment and

thus has no substantive nor procedural rights. The critical

question for this court is whether plaintiff has alleged

sufficient evidence for a reasonable jury to find that he was

constructively discharged, thus making his resignation

involuntary.

As stated above. Dyne asserts two theories by which the

resignation he tendered to Chief Babin could be found to be

involuntary. Because the individual defendants are entitled to

qualified immunity with respect to plaintiff's claim of actual

discharge, this court confines its inquiry to the constructive

discharge claim.

c. Constructive Discharge

"'Through the use of constructive discharge, the law

recognizes that an employee's "voluntary" resignation may be, in

reality, a dismissal by the employer.'" Godfrey v. Perkin-Elmer

Corp.,

(D.N.H. 1992) (quoting Seery v.

Yale-New Haven Hospital,

(Conn. App. Ct. 1989)

(citation omitted)). To establish a claim for constructive

23 discharge, the evidence must support a finding that "the new

working conditions would have been so difficult or unpleasant

that a reasonable person in the employee's shoes would have felt

compelled to resign." Greenberg v. Union Camp Corp.,

(1st Cir. 1995); see Calhoun v. Acme Cleveland Corp.,

(1st Cir. 1986) (quoting Alicea Rosado v. Garcia

Santiago,

(1st Cir. 1977)). The legal standard

to be applied is "objective," with the inquiry focused on "the

reasonable state of mind of the putative discriminatee."

Calhoun, supra,

. Consequently, an employee may

not be unreasonably sensitive to his or her working environment.

See i d .

A plaintiff can legitimately be said to feel compelled to

resign under a number of scenarios. A constructive discharge may

occur when an employee's resignation resulted from new working

conditions that were particularly humiliating or demeaning; for

example, by exposing him or her to ridicule in front of clients.

See

(citing Aviles-Martinez v.

Monroig,

(1st Cir. 1992)). Likewise, a demotion or

reduction in pay are also relevant considerations. See i d .

(citing Goss v. Exxon Office Svs. Co.,

(3d

Cir. 1984)). The First Circuit has also recognized that direct

or circumstantial evidence of discriminatory animus can

24 substantiate the intolerable nature of one's working conditions.

See

at 28 (citing Acrev v. American Sheep Indus.,

(10th Cir. 1992)).

Defendants contend that no reasonable person could find that

Dyne was constructively discharged. In support of this

contention, defendants state that "Chief Babin never prevented

the plaintiff from voicing his concerns." Defendants' Motion for

Summary Judgment at 13. However, even assuming that statement to

be true, the more pertinent question is whether sufficient

evidence exists to support a finding that Dyne's working

conditions became so difficult or unpleasant that he was forced

to resign. In support of his claim, plaintiff alleges that the

police department opted out of a commitment it had made to help

fund a major investigation he was conducting in another town;

that he was required to complete extensive daily log sheets,

although previous prosecutors had not been asked to do this; and

that, against his wishes, the chief ordered Dyne to attend every

session of a violence intervention program for a third grade

class at Littleton Elementary School. Viewed alone and out of

context, these working conditions do not appear to be so

difficult or unpleasant that a reasonable person would feel

compelled to resign. See Bristow v. Daily Press, Inc.,

(4th Cir. 1985) (no constructive discharge where

25 conditions, though unpleasant, are part and parcel to the job),

cert, denied,

(1986). The claim is strengthened,

however, when this evidence is viewed in relation to the

conversations Dyne constantly had with the chief, in which Dyne

objected to the chief's refusal to address the alleged illegal

conduct by fellow police officers.

In cases brought under federal anti-discrimination statutes,

courts considering constructive discharge claims have looked at

whether the adverse action was taken in retaliation for a

protected act. See, e.g.. Hart v. University Svs. Of New

Hampshire,

(D.N.H. 1996). In these cases,

the fact that the complained-of actions were motivated by

discriminatory or retaliatory animus makes the actions

intolerable where they otherwise might not be. See Greenburg,

supra,

("[E]vidence of a discriminatory animus

could help substantiate a claim that one's working conditions

had become intolerable . . . ."). For example, in

, this court found it significant to

plaintiff's constructive discharge claim that the employer's

request for the plaintiff's resignation and his reduction of her

pay and hours followed shortly after the plaintiff had complained

to her employer about gender discrimination. Likewise, viewing

the evidence in the light most favorable to Dyne, it is

26 significant that Chief Babin instituted new working conditions

only after Dyne objected to the chief's refusal to address the

discipline problem in the department. This court cannot say as a

matter of law that the evidence presented, taken as a whole, is

insufficient to support a finding of constructive discharge.

Defendants argue that Dyne's failure to explore the option

of filing a grievance precludes a finding of constructive

discharge. In another recent case, the court held that "a

reasonable person will usually explore . . . alternative avenues

thoroughly before coming to the conclusion that resignation is

the only option." Larkin v. Town of West Hartford,

(D. Conn. 1995) (citing Boze v. Branstetter,

(5th Cir. 1990)). The court included filing a grievance

and "threatening to quit if changes are not made" as acceptable

alternatives one could explore prior to resignation. See i d .

Although Dyne did not file a formal grievance, he claims he

constantly spoke with the chief regarding his concerns about

illegal conduct in the department and withdrew his first letter

of resignation after the chief allegedly told him that changes

would be made. This court cannot say that Dyne failed to explore

alternative avenues before concluding that resignation was his

only option.

27 Lastly, defendants claim that Dyne did not resign within a

reasonable time following the second of the two alleged incidents

which occurred in January 1993. Defendants argue that the one-

year time period between the last incident and plaintiff's

resignation is too great to support a claim of constructive

discharge. See Smith v. Bath Iron Works Corp.,

(1st Cir. 1991). In that case, the court ruled for the employer

because the last alleged discriminatory act occurred six months

before the plaintiff resigned.

. Here, the alleged

strip search that defendants claim occurred too long before

plaintiff resigned is not the challenged violation. Rather, Dyne

is challenging the change in his working conditions that occurred

after he reported the two illegal incidents to the chief. Much

of this impact allegedly lasted until Dyne actually left the

department. Thus Dyne filed his claim with this court in a

timely manner.

For the abovementioned reasons, this court finds that

plaintiff has alleged sufficient evidence for a reasonable jury

to conclude that he was constructively discharged.

28 7. Pendant State Law Claims

a. Wrongful Discharge

Count IV alleges that the town discharged Dyne out of bad

faith, malice, or retaliation, and that, by attempting to curb

the illegal conduct of fellow police officers. Dyne was

performing acts which public policy would encourage. Thus, Dyne

argues, his termination was wrongful.

Under the governing law of New Hampshire, employees fall

into two classes: contract employees and at-will employees. See

Censullo v. Brenka Video, Inc.,

(1st. Cir. 1993)

(citing Panto v. Moore Business Forms, Inc.,

,

(1988)). An employer's termination of an at-

will employee motivated by bad faith or malice or based on

retaliation is not in the "interest of the economic system or the

public good and constitutes a breach of the employment contract."

Monge v. Beebe Rubber Co.,

,

(1974). This rule affords the employee a certain stability of

employment and does not interfere with the employer's normal

exercise of his right to discharge, which is necessary to permit

him to operate his business efficiently and profitably. See i d .

Only at-will employees, however, may avail themselves of this

cause of action. Employees with contractual rights to continued

29 employment are limited in their remedies for breach by the terms

of the contract. See

.

In this case, it is undisputed that Dyne was a contract

employee. Article X of the CBA governing Dyne's employment

provided that disciplinary action including discharge could only

be taken for "just cause." Defendant's Memorandum, Exhibit E at

6. Because the CBA includes this discharge provision, the public

policy exception to the employment at will doctrine does not

apply; as a contract employee. Dyne is limited in his remedy for

breach by the terms of the contract.

b. Breach of Contract

In Count V, Dyne contends that the town breached its

contract by discharging plaintiff without cause and without

providing him notice and a hearing as required by RSA 41:48.

However, while this statute vests full-time police officers with

a property right to continued employment, and thus the

protections of due process, it does not double as a bargained

-for exchange between two parties that can be breached. Rather,

the CBA between the Littleton police and the town is the only

contract governing the terms and conditions of Dyne's employment.

Dyne's claim for breach of contract therefore must arise from the

CBA. Defendants request summary judgment on this claim based on

30 the plaintiff's failure to avail himself of the grievance and

arbitration procedures provided in the collective bargaining

agreement.

Courts normally apply federal labor law to interpret a

collective bargaining agreement. See Lingle v. Norge Div. of

Magic Chef, Inc.,

(1988); Filbotte v. Pennsylvania

Truck Lines, Inc.,

(1st Cir. 1997). "[S]ection

301 [of the Labor Management Relations Act,

]

preempts a state-law claim, whether founded upon the state's

positive or common law, if a court, in passing upon the claim,

would be required to interpret the collective bargaining

agreement." Filbotte, supra,

. Thus, it appears

that the contract claim should be interpreted with reference to

the federal law. The defendants, however, have not raised the

preemption issue. In fairness to the plaintiff, the court will

not decide the issue without giving him opportunity to address

the question of whether the applicable law is state contract law

or federal labor law. The defendants' motion for summary

judgment is therefore denied. If defendants' wish to renew their

motion on this count, they may do so, but should address the

preemption issue.

31 c. Interference with Contractual Relations

Count VI alleges that Chief Babin improperly interfered with

Dyne's economic relationship with the town. The chief argues

that Count VI fails to state a claim upon which relief can be

granted because, as an agent of the town acting within the scope

of his employment, he cannot be a third party with respect to the

economic relationship. See Defendants' Motion For Summary

Judgment at 21.

Section 301 preemption appears to be relevant to this claim,

but again has not been addressed by the parties. In Magerer v.

John Sexton & Co.,

(1st Cir. 1990), the

court held that an intentional interference with contractual

relations claim was preempted by section 301 because its

resolution depended upon the interpretation of a collective

bargaining agreement. That case, however, was based on

Massachusetts tort law. Arguably this holding is not applicable

to the instant claim premised upon New Hampshire law. The court

will deny the motion for summary judgment as resolution of this

claim requires discussion of the section 301 preemption issue,

which has yet to be addressed.

32 Conclusion

For the abovementioned reasons, defendants' motion for

summary judgment is granted in part (Count IV) and denied in part

(Counts I, II, III, V, and V I ) .

SO ORDERED.

Shane Devine, Senior Judge United States District Court

November 10, 1998

cc: Edward M. Van Dorn, Jr., Esq. Donald E. Gardner, Esq.

33