Young v. Plymouth State College CV-96-075-JD 09/21/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Leroy S. Young and Tatum Young

v. Civil No. 96-75-JD

Plymouth State College, University System of New Hampshire, and Donald P. Wharton

O R D E R

The plaintiffs, Leroy and Tatum Young, bring a civil rights

action and related state law claims against Leroy Young's former

employer, Plymouth State College, the University System of New

Hampshire, and the college president, Donald P. Wharton. The

Youngs allege that the defendants terminated Young's employment,

based on students' charges of sexual harassment, in violation of

his Fourteenth Amendment due process rights and in breach of the

reguirements of the Faculty Handbook.1 They also contend that

defendant Donald Wharton's press conference about the charges

constituted defamation and an invasion of privacy. The

defendants move for summary judgment on all of the plaintiffs'

claims.

1Although the plaintiffs state, in the jurisdictional statement of their complaint, that their claims arise under the First and Fourteenth Amendments, they do not allege a claim under the First Amendment. Standard of Review

Summary judgment is appropriate when "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record.

See Celotex Corp. v. Catrett,

(1986). " [A]n

issue is 'genuine' if the evidence presented is such that a

reasonable jury could resolve the issue in favor of the nonmoving

party and a 'material' fact is one that might affect the outcome

of the suit under governing law." Faiardo Shopping Ctr. v. Sun

Alliance Ins. Co.,

, 7 (1st Cir. 1999) . When

considering a motion for summary judgment, the record evidence is

taken in the light most favorable to the nonmoving party. See

Zambrana-Marrero v. Suarez-Cruz,

(1st Cir.

1999). To avoid summary disposition, a party opposing a properly

supported motion for summary judgment must present record facts

showing a genuine issue for trial. See Anderson v. Liberty

Lobby, Inc.,

(1986).

2 Background2

The plaintiffs, Leroy and Tatum Young, are husband and wife.

Leroy Young was a tenured full-time associate professor in the

Art Department at Plymouth State College in August of 1993 when a

student, Jennifer Often, complained about Young's language and

conduct toward her. The Dean of Faculty, Theodora Kalikow, and

the Dean of Student Affairs, Richard Hage, reported Often's

complaint to the college president, Donald Wharton. Kalikow and

the College's Director of Personnel, Suz-Ann Ring, met with Young

to discuss Often's complaint. Young felt that Kalikow and Ring

demonstrated an anti-male hostility. An attorney representing

Young wrote to Kalikow on September 16, 1993, about the complaint

and the College's procedures in handling the complaint.

On September 17, 1993, Kalikow reported to Wharton that she

had received a complaint about Young from another student. Rose

Marie Bente, who said that Young had sexually harassed her and

2The background facts are taken from the parties' factual statements. The court notes that the plaintiff improperly included argument and legal characterizations in his factual statement. See LR 7.2(b)(2). To the extent the plaintiff does not dispute the defendants' properly supported facts, they are deemed admitted for purposes of summary judgment.

Since neither party challenges the affidavits submitted by the other, any objections are deemed waived. See Casas Office Machs. v. Mita Copystar America,

(1st Cir. 1994) ("Unless a party moves to strike an affidavit under Rule 56(e), any objections are deemed waived and a court may consider the affidavit.").

3 made threatening statements toward Otten. Wharton asked Kalikow

to notify Young to have no further contact with Otten or Bente

until the complaints were resolved. Kalikow sent a letter to

that effect on October 1.

In early October, a former Plymouth State College student,

Tracy Schneider, sent Kalikow a letter alleging that she had been

sexually harassed by Young while she was a student from November

of 1990 until June of 1992. Schneider decided not to provide

more information about her allegations after Kalikow told her

that the period for filing a formal complaint had expired. In

mid-October, Otten and Bente made formal complaints of sexual

harassment against Young. Otten and Bente received help from

Kalikow and from the College's general counsel in drafting their

complaints.

On October 22, 1993, Wharton met with Young and asked him to

take an administrative leave of absence with pay until the

complaints by Otten and Bente were resolved. Young accepted,

under protest, Wharton's offer of a temporary leave with pay.

Young was barred from the campus, and his classes were reassigned

to other professors.

The College's Sexual Harassment Hearings Panel convened on

November 5, 1993, to consider Otten's complaint against Young.

On November 6, the Panel delivered its report in which the Panel

4 concluded "that sexual harassment did occur in that unwelcome

sexual advances, unwelcome touching and other verbal and physical

conduct of a sexual nature occurred which had the effect of

unreasonably interfering with Ms. Otten's academic environment."

Defs. Ex. 12. The Panel recommended that a letter of warning be

placed in Young's file, that provisions should be made for Otten

to work with other faculty, that Young receive training including

classroom observation, and that Young should not return to

teaching "until the administration is satisfied that it is

appropriate."

In response, on November 15, Wharton notified

Young by letter that a letter of reprimand would be placed in his

file and that he would be suspended for sixty days without pay.

Young appealed the Panel's decision.

The University System's General Counsel, Ronald Rodgers,

told Wharton that he had been contacted by Attorney Ken Brown

representing Otten and Bente and that they intended to file suit

against the College. Brown later notified Rodgers that Bente did

not intend to pursue her complaint filed with the College, and

that he had talked with Schneider about her allegations of sexual

harassment against Young. Rodgers and Dean of Students Hage met

with Schneider at Brown's office on December 1, 1993. Schneider

related a series of events of a sexual nature with Young between

the fall of 1990 and the summer of 1992. Schneider also said

5 that she had told several other students about Young's actions

when they happened, and that those students discussed her

allegations against Young with two other professors. Hage

reported Schneider's allegations to Wharton. At about the same

time, Otten, Bente, and Schneider, represented by Brown, served a

state writ of summons to initiate actions against Young, the

College, and the University System of New Hampshire. Each of the

plaintiffs filed affidavits in connection with the suit detailing

their allegations.

Wharton and Rodgers met with Leroy and Tatum Young and their

attorney, Michael Garner, on December 29, 1993. Wharton

described Schneider's allegations against Young, and Young denied

them. Young also told Wharton that he had taken a polygraph test

with respect to Schneider's allegations and gave him a copy that

showed Young's denials of three major incidents alleged by

Schneider were truthful. Young told Wharton that Schneider had

given him gifts including a book of love poetry, a bottle of

Scotch, and an inscribed copy of the book. The Thorn Birds.

Wharton said that he would investigate the matter further.

At Wharton's reguest, Rodgers interviewed the two professors

who Schneider identified as having known about her allegations of

Young's harassment soon after it happened. The two professors

confirmed that students had reported the harassment to them, and

6 one said she had offered assistance to Schneider who refused to

speak without a promise of absolute confidentiality. Wharton

interviewed Schneider who repeated her allegations and also told

Wharton that Young had given her gifts during the period.

Wharton also interviewed the two professors, and called two

former students, whom Schneider said she told about the

incidents. The professors and the former students confirmed

Schneider's story.

In January of 1994, Wharton called Young to tell him that he

would not be teaching at the beginning of the spring semester.

Wharton and Young planned to meet on February 2, 1994, but when

Young's wife accompanied him, Wharton canceled the meeting. On

February 6, the Sexual Harassment Appeals Panel overturned all

but one of the findings of the Sexual Harassment Panel that the

incidents alleged by Otten constituted sexual harassment, and

also found that the investigation of the complaint had been

inadeguate. The Appeals Panel reversed the sanctions previously

imposed but also imposed new restrictions on Young's activities.

In response, Wharton wrote to Young that his administrative leave

would continue with pay pending resolution of the investigation

of Schneider's allegations.

Wharton wrote to William Farrell, Chancellor of the

University System of New Hampshire, on February 17, 1994,

7 providing him with a chronology and detail about the complaints

and allegations against Young. At the end of the letter, Wharton

wrote that he intended to charge Young with "deliberate and

flagrant neglect of duty and moral delinguency," to meet with

him, and unless an agreement could be reached, to dismiss Young.

Pi. Ex. 20. Wharton met with Leroy and Tatum Young and the

College's general counsel, Rodgers, on March 3, 1994. The

Youngs' attorney was notified of the meeting but could not

attend. Wharton discussed Schneider's allegations including the

gifts and told Young he found Schneider's story to be credible.

When asked, Wharton refused to identify the students and faculty

who had confirmed Schneider's allegations. Young denied all of

Schneider's allegations. Young says he understood the meeting

was related to the lawsuit, and did not realize that he might

face dismissal from his job.

Wharton wrote to Young in a letter dated March 15, 1994,

"[a]s you well know, a former student of yours, Tracy Schneider,

recently complained to Plymouth State College about your

treatment of her while she was a student." Pi. Ex. 25. Wharton

said he had concluded that he had "no choice but to initiate a

dismissal action" against Young and under the faculty personnel

policies he charged Young "with deliberate and flagrant neglect

of duty and moral delinguency of a grave order tending to injure the reputation of the College."

Wharton also noted the

personnel policy requirement that he meet with Young to try to

resolve the problem and set a meeting for March 21 at Wharton's

office. At the meeting on March 21, Wharton gave Young copies of

pages of the Faculty Handbook pertinent to dismissal proceedings

and asked if he had any proposal to resolve the problem without

dismissal. Young denied the charges and said he would oppose

dismissal. Wharton said that his only choice was dismissal.

Wharton wrote to Young on March 25, 1994, notifying him that

he was dismissed from the faculty. On March 28, Wharton

announced Young's dismissal in a press release in which Wharton

discussed Schneider's charges against Young and attached

Schneider's affidavit. On the same day. Chancellor Farrell sent

a confidential memorandum to the members of the board of trustees

of the University System of New Hampshire notifying them of

Wharton's decision to dismiss Young.

Under the provisions of the Faculty Handbook, Young sought

an appeal to the Faculty Review Committee of Wharton's decision

to dismiss him. On April 19, 1994, the Faculty Review Committee

sent a letter to Wharton stating that it would submit findings

without making any recommendation. Pi. Ex. 30. The Committee

found that Young was exonerated by the Sexual Harassment Appeals

Panel of the charges brought against him, that the Appeals Panel's recommendation to reinstate Young was not followed, that

the Review Committee lacked jurisdiction over Schneider who was

no longer a student and was not "privy to all of the information

which might have formed the basis of the president's decision."

The Review Committee found that Young presented a "prima

facie case in his defense" and said that it "was unable to

determine the basis of the extraordinary form and content of the

President's press release on Professor Young."

Finding the

case "extraordinary," the Review Committee found a need for new

policies and procedures to involve faculty representatives in a

decision to dismiss tenured faculty.

Young sought to appeal the Review Committee's report. After

some initial confusion due to the nature of the Review

Committee's decision, an Appeal Committee was established to

"review the case to determine whether Professor Young was

properly dismissed for cause by President Wharton in accordance

with the Faculty Handbook." PI. Ex. 39. The appeal hearing was

held on May 5, 1995. Both Young and the College were represented

by counsel at the hearing. The Appeals Committee heard testimony

from Schneider, Leroy Young, Tatum Young, Wharton, one of the

students in whom Schneider had confided, and the two professors

who had heard about Schneider's allegations while she was a

student.

10 On November 27, 1995, the Appeal Committee issued its report

and recommendation with a dissent by two members. The Appeal

Committee found that Wharton "did not properly interpret and

apply the Faculty Handbook procedures regarding dismissal for

cause when he made Professor Young's dismissal effective

immediately," that the press release was "inappropriate and

potentially damaging for all parties concerned," that Wharton

"did not have a sufficient basis for effecting Professor Young's

dismissal," and "that a 3-2 majority of the Committee finds the

evidence now before it sufficient to recommend dismissal for

cause." Defs. Ex. 23 at 22. Based on its findings, the Appeal

Committee recommended that Young's dismissal be rescinded, that

"the College negotiate a monetary sum due Professor Young in lost

pay and benefits for the period from the commencement of his

suspension without pay to the conclusion of all proceedings,"

and, unless further appeals were available, that Young be

dismissed for cause at the conclusion of all proceedings.

Young's attorney notified the College's counsel that Young

had decided not to seek any further hearing of the matter.

Wharton sent Young a letter on January 12, 1996, notifying him

that his official records would be modified to change his status

on March 25, 1994, from "dismissed" to "suspension with pay" and

that the College would pay him for lost salary and benefits as

11 recommended by the Appeal Committee. Wharton also notified Young

that subject to further appeal, he was dismissed for cause as of

the date of the letter. PI. Ex. 41.

Young says that the writ of summons alleging claims by

Otten, Bente, and Schneider which was served on his counsel on

January 3, 1994, was not entered in Grafton County Superior Court

by the return date causing their suit to lapse. He also says

that Otten and Bente voluntarily dismissed their claims after

they were pending in Grafton County Superior Court. On May 28,

1995, Schneider sued the College and the University System of New

Hampshire alleging claims based on sexual harassment by Young.

The outcome of Schneider's suit is unknown. Young brought this

suit against the College, the University System, and Wharton in

February of 1996.

Discussion

Leroy Young brings claims under

alleging

that the defendants violated his procedural and substantive due

process rights in terminating his employment.3 He also alleges

that the defendants breached the provisions of the Faculty

3Although Young mentions violations of his First Amendment rights in his objection to summary judgment, his does not appear to have alleged a claim based on violation of his First Amendment rights.

12 Handbook and their duty of good faith and fair dealing, and that

the news release was defamatory and put Young in a false light.

Tatum Young brings a claim for loss of consortium.

The defendants move for summary judgment on several grounds.

The College and the University System argue that they are not

liable under

based on a respondeat superior

theory, and they contend that the plaintiffs have not pled and

cannot show that a policy or practice existed which caused a

violation of Young's due process rights. The defendants also

contend that Young cannot prove either his procedural or

substantive due process claims. The defendants move for judgment

in their favor on the claims based on the Faculty Handbook on

grounds that the Handbook disclaimed any contractual obligation,

that all of the proceedings complied with the Handbook, and that

Young waived claims of breach by not pursuing grievance

procedures provided in the Handbook. As to the defamation and

invasion of privacy claims, the defendants assert that Wharton

was privileged to make the news release, that Young was a public

figure and would not be able to prove malice, and that the

information in the release was not false.

13 A. Section 1983 Claims Against the College and the University System4

The defendants do not contest that the College and the

University System are "persons" within the meaning of section

1983.5 Government entities, such as the College and the

University System, are not liable under section 1983 based on a

theory of vicarious liability. See Monell v. New York City Dept,

of Social Servs.,

(1978). Therefore, a

governmental entity "may not be sued under § 1983 for an injury

inflicted solely by its employees or agents." Id. at 694.

"Instead, a plaintiff seeking to impose liability on a

[government entity] under § 1983 must identify a [governmental]

4Young's § 1983 claims against Wharton in his official capacity are construed as claims against the College and University System. See Negron Gaztambide v. Hernandez Torres, 145 F .3d 410, 416 (1st Cir. 1998).

5Section 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in action at law, suit in eguity, or other proper proceedings for redress.

14 ''policy' or 'custom' that caused the plaintiff's injury." Silva

v. Worden,

(1st Cir. 1997); see also Harris v.

District Board of Trustees of Polk Community College,

(M.D. Fla. 1998) (considering Monell criteria in

context of college's liability); Harel v. Rutgers,

(D.N.J. 1998) (same).

A policy, custom, or practice is attributable to the

governmental entity only if established by the entity's "duly

constituted legislative body or by those officials whose acts may

fairly be said to be those of the [governmental entity]." Board

of County Comm'rs of Bryan County v. Brown,

(1997); accord Silva v. Worden,

(1st Cir. 1997).

To constitute governmental policy for purposes of § 1983

liability, the official must have "final authority to establish

municipal policy with respect to the action ordered." Pembaur v.

Cincinnati,

(1986). In addition, there must be

a direct link between a policy attributable to the governmental

entity and a deprivation of the plaintiff's federal rights. See

Brown,

. A single decision or act by a policy

maker may constitute policy attributable to a governmental entity

if that conduct directly resulted in a deprivation of federal

rights. See

; see also Rossi v. Town of Pelham,

(D.N.H. 1997). Once an official policy is

15 established, the plaintiff must also show that the decision was

made with the requisite level of culpability. See Brown,

.

Leroy Young argues that President Wharton and Chancellor

Farrell were policy makers for the College and the University

System. He contends that Wharton's decision to dismiss him,

allegedly without due process, constituted policy for the College

and that Farrell's alleged approval of the decision constituted

policy for the University System. Young provides no specific

evidence in response to the motion for summary judgment that

either Wharton or Farrell was the final decision maker with

respect to decisions to dismiss tenured faculty, which is the

policy at issue in this case. C f . McHenry v. Pennsylvania State

Svs. of Higher Educ.,

, 416 n.21 (E.D. Pa.

1999).

The record itself, however, offers some proof that Wharton

was the final decision maker as to whether or not to dismiss

Young since Wharton's decision directly resulted in Young's

dismissal. In any case, the defendants do not appear to contest

Wharton's authority to make final decisions on dismissal of

tenured faculty. Neither party has discussed the effect of the

appeals process on the finality of Wharton's decision.

In contrast, the record shows that Chancellor Farrell merely

16 passed Wharton's decision along to the Board of Trustees of the

University System and does not indicate that he had any decision­

making authority as to the dismissal. Young does not argue that

Wharton operated as the final decision maker for the University

System. Since Young has not shown a triable issue that his

dismissal was caused by the University System's policy, summary

judgment is appropriate in favor of the University System as to

Young's § 1983 claims.

Wharton's decision to dismiss Young, allegedly made without

affording Young due process, is a decision with a direct causal

nexus to the harm alleged that could constitute policy based on a

single decision. See Brown,

-506. Since factual

issues remain as to whether Wharton's decisions are attributable

to the College as policy, summary judgment is not appropriate for

the College.6

B. Due Process

The defendants do not contest that Leroy Young had a

constitutionally protected property interest in his tenured

position. They contend, however, that Young received all of the

process due under the constitution in the course of the dismissal

6The defendants have not challenged Young's evidence as to the level of culpability of the decision.

17 proceedings. The defendants also contend that because a

postdeprivation remedy, in the form of a state law breach of

contract claim, is available, he is not entitled to recover for

any procedural due process deficiencies. In addition, the

defendants argue that Young cannot show that their actions

constituted a violation of his substantive due process rights.

1. Procedural Due Process

The First Circuit has interpreted the reguirements of

procedural due process under circumstances involving the

dismissal of a tenured university professor in Cotnoir v.

University of Maine Svs.,

(1st Cir. 1994) . "Procedural

due process guarantees an affected individual the right to some

form of hearing, with notice and an opportunity to be heard,

before he is divested of his protected interest."

.

Included in the right to notice is a reguirement that notice be

provided of the proposed action.

.

Young contends that he was neither properly notified of the

charges against him nor notified of the proposed action at a

meaningful time. Although his dismissal was ostensibly based on

the sexual harassment charges made by Tracy Schneider, Young

contends, citing Wharton's deposition testimony, that Wharton

also improperly and without notice to him considered Otten's and

18 Bente's charges, after both complaints had been resolved. In

addition, he says, supported by his affidavit, that he was not

notified that Wharton planned to dismiss him until after the

decision had been made and when he was offered little opportunity

to present his case. Based on the stringent notice reguirements

set forth in Cotnoir, Young has raised a material factual issue

as to whether he received constitutionally adeguate notice of the

charges and proposed action against him.

Postdeprivation relief provides an exception to the

reguirement of predeprivation process only when predeprivation

process was impossible, such as when the challenged actions were

random and unauthorized, but not when the actions were pursuant

to governmental policy. See Zinermon v. Burch,

(1990); Loaan v. Zimmerman Brush Co.,

(1982); Brown v. Hot, Sexy and Safer Prods. Inc,

(1st Cir. 1995). Actions by a final decision maker authorized to

make particular policy in the challenged area generally are not

random and unauthorized. See Easter House v. Felder,

(7th Cir. 1990); Dwyer v. Regan,

(2d Cir. 1985); Verri v. Nanna,

(S.D.N.Y. 1997); c f . Cronin v. Amesburv,

, 260 n.2

(1st Cir. 1996) (postdeprivation remedies relevant where

plaintiff alleged his termination resulted from defendants'

19 random and unauthorized actions). Since Young has raised

material factual questions as to whether Wharton was a final

policy maker for the College, the defendants cannot show that

Wharton's actions were indisputably random or unauthorized.

Therefore, summary judgment is not appropriate based on the

availability of postdeprivation relief.

2. Substantive Due Process

Substantive due process prohibits impermissibly arbitrary

governmental actions despite the fairness of the implementing

procedures. See County of Sacramento v. Lewis,

(1998); accord Licari v. Ferruzi,

(1st Cir.

1994) ("Procedural due process guarantees that a state proceeding

which results in a deprivation of property is fair, while

substantive due process ensures that such state action is not

arbitrary and capricious."); Amsden v. Moran,

(1st Cir. 1990) ("a substantive due process claim implicates the

essence of state action rather than its modalities"). Recently,

the Supreme Court has explained that the substantive due process

analysis depends on whether legislation or the conduct of a

governmental officer is at issue. See Lewis,

.

When an executive decision is challenged as a violation of

substantive due process, the standard to be applied is whether or

20 not the conduct is conscience shocking; "[T]he threshold question

is whether the behavior of the governmental officer is so

egregious, so outrageous, that it may fairly be said to shock the

contemporary conscience." Lewis,

and n.8.

Prior to Lewis, the First Circuit established that an

arbitrary and capricious decision to dismiss a tenured teacher

violates substantive due process. See Newman v. Massachusetts,

(1st Cir. 1989). In that context, a decision

based on a trivial reason or a reason unrelated to the

educational process was deemed to be arbitrary.7

.

Young argues that Wharton's decision to dismiss him based on

Schneider's charges, and influenced by Otten's and Rente's

charges, was lacking in factual support and was therefore

arbitrary. He contends that his polygraph results so undermined

Schneider's credibility that Wharton had no basis to believe her.

Wharton also characterizes Schneider's charges as trivial: "a

tepid, almost bumbling affair." Pi. Memo, at 11.

Nothing in Wharton's decision making is sufficiently

outrageous or egregious that a reasonable jury could find it

7Since Wharton's decision was not a "genuine academic decision," it is not entitled to the deference decisions based on an evaluation of academic criteria or credentials would be accorded. See Newman v. Burain,

(1st Cir. 1991) (citing Regents of University of Michigan v. Ewing,

(1985)).

21 conscience shocking. The decision to dismiss Young based on

Schneider's charges of sexual harassment, perhaps influenced by

the other charges of sexual harassment, even if wrong, was not

outrageous.

If the Newman arbitrariness standard survives Lewis, the

record does not show a sufficient lack of factual support for

Wharton's decision to constitute arbitrary decision making. See

Amsden v. Moran,

, 754 n.5 (1st Cir. 1990) ("the

reguisite arbitrariness and caprice must be stunning").

Schneider's charges, if believed, describe sexual harassment, and

dismissal of a teacher for sexual harassment of a student is not

arbitrary or capricious. See, e.g., Gebser v. Lago Vista

Independent Sch. Dist.,

(1998) (discussing school's

liability under Title IX for teacher's harassment of student).

In fact, even Young's characterization of Schneider's

allegations, as an attempt by a professor to instigate a "tepid"

or "bumbling" affair with a student, could reasonably be found to

amount to sexual harassment. Therefore, under either standard.

Young has not demonstrated a trialworthy issue on his claim of a

violation of his right to substantive due process. See, e.g.,

Tonkovich v. Kansas Bd. of Regents,

, 529 (10th Cir.

1998). Therefore, the defendants are entitled to summary

judgment with respect to Young's substantive due process claim.

22 3. Qualified Immunity

In a section 1983 case, "government officials performing

discretionary functions generally are granted a gualified

immunity and 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.'" Wilson v. Layne, 119 S. C t . 1692, 1698-99

(1999) (guoting Harlow v. Fitzgerald,

(1982));

accord Sheehv v. Plymouth,

(1st Cir. Sept.

8, 1999). The gualified immunity analysis, therefore, reguires

two steps to determine: (1) whether the constitutional right in

guestion, at the appropriate level of generality, was clearly

established at the time of the challenged conduct; and (2)

"whether a reasonable, similarly situated official would

understand that the challenged conduct violated the established

right." Napier v. Windham,

(1st Cir. Aug.

6, 1999); see also Bradv v. Dill,

(1st Cir.

July 22, 1999) .

Leroy Young alleges that Wharton violated his right to

procedural due process in the manner in which he decided to

dismiss Young from his employment. More specifically. Young

charges that Wharton failed to give him notice that he might be

dismissed at a meaningful time before he made the decision and

23 improperly relied in part on charges by Otten and Bente, which he

had not told Young were included in the charges being considered

against him. Young also argues, less convincingly, that Wharton

failed to provide him an adeguate explanation of the evidence

against him.

Procedural due process rights to be accorded a tenured

professor before dismissing him from employment were clearly

established in 1993 and 1994 when the events in guestion in this

case occurred. See Cotnoir,

. As discussed

above, the facts pertaining to Wharton's decision-making process

are disputed.8 In addition, the defendants argument in favor of

gualified immunity that Wharton "carefully adhered to the

provisions in the Faculty Handbook" is called into guestion by

the Appeals Committee's conclusion that Wharton did not properly

interpret or apply the pertinent provisions of the Handbook.

Summary judgment on gualified immunity grounds is

appropriate only when there is no dispute as to material facts.

See Swain v. Spinney,

(1st Cir. 1997). Wharton has

not demonstrated that he is entitled to gualified immunity based

on the record presented for summary judgment.

81he College, which is a government entity like a municipality, is not entitled to gualified immunity. See Leatherman v. Tarrant Countv Narcotics Intelligence and Coordination Unit,

(1993).

24 C. Breach of Contract

The defendants move for summary judgment on Young's breach

of contract and related breach of the duty of good faith and fair

dealing claims. The defendants contend that Wharton complied

with all of the Handbook provisions, that the Handbook disclaimer

precludes the claims, and that Young waived his claims by not

challenging the procedures during the administrative process. A

material factual dispute exists as to whether Wharton complied

with the Handbook provisions, which precludes summary judgment

based on the defense that no breach of the provisions occurred.

The guestion of whether an employer's handbook, manual, or

policy statement creates an enforceable contract ordinarily

arises in the context of an at-will employee whose employment is

not otherwise subject to express contractual obligations. See

Butler v. Walker Power, Inc.,

(1993). Here,

since Young was tenured, not an at-will employee, he was

presumably subject to dismissal only for cause, and it is likely

that he and the College had some contractual arrangement for his

employment. The defendants contend, based on the disclaimer,

that the Handbook did not provide contractual provisions for

handling the charges made against Young or his dismissal.

An employer's handbook or policy statement may form an

enforceable unilateral contract. See Panto v. Moore Business

25 Forms, Inc.,

(1988). An employer may avoid

contractual obligations by including a sufficiently explicit

disclaimer in the handbook. See Butler,

; see

also Riesgo v. Heidelberg Harris, Inc.,

(D.N.H. 1997). The meaning of a disclaimer, as part of a

contract, is construed as a matter of law. Id. at 435. The

disclaimer is reviewed in the context of the entire agreement to

determine the intent of the parties. Id.

The disclaimer in the "Handbook of the Plymouth State

College Faculty" provides as follows:

The University System and Plymouth State College reserve the right to change any of the policies, rules, or regulations at any time, including those relating to salary, benefits, promotion and tenure, termination, or any other term or condition of employment. All changes are effective at such times as the proper authorities determine whether or not those changes are reflected in this Handbook. Every effort has been made to ensure the accuracy of statements made in this Handbook, however, the actual terms and conditions of employment may differ from those described herein. Accordingly, this Handbook and its provisions do not, and should not be construed to create a contract of employment or establish any legally binding conditions of employment. If you have any guestions concerning the current status or applicability of any provision described in this Handbook you should consult with the Dean of the College or the Director of Personnel.

Def. Ex. 2. A disclaimer that a handbook does not create a

contract of employment refers only to the durational aspect of

employment, not to other benefits or contractual relationships

26 described in the handbook. See Butler,

. The

question is whether the disclaimer language, "this Handbook and

its provisions do not, and should not be construed to . . .

establish any legally binding conditions of employment,"

effectively disclaims any agreement to abide by the complaint and

termination procedures in the Handbook. Since complaint and

termination procedures may be reasonably construed to be included

within the meaning of "conditions of employment," the Handbook,

with sufficient specificity, disclaims any contractual right to

implementation of those procedures. See, e.g., Riesgo,

.

In addition, the disclaimer provides for changes in the

College's policies, rules, and regulations, if changes are

implemented by those with authority, whether or not such changes

are included in the Handbook. Young argues that Wharton is a

final policy maker for the College who, therefore, has authority

to implement changes in policy. To the extent that Young argues

Wharton's decisions and actions established the College's

policies, those new policies, not the published Handbook

provisions, would constitute enforceable College policy. The

resulting changed policy would negate Young's claims for breach

of contract based on the provisions published in the Handbook.

Therefore, the Handbook disclaimer effectively prevented the

27 formation of any enforceable contract provisions with respect to

the College's complaint and termination procedures. Young's

claim alleging breach of the covenant of good faith and fair

dealing is based on the alleged contractual obligations in the

Handbook. Absent contractual obligations, the claim for breach

of the covenant of good faith and fair dealing also fails.

Accordingly, the defendants are entitled to summary judgment in

their favor on the plaintiff's claim of breach of contract and

breach of the covenant of good faith and fair dealing.

D. Defamation and Invasion of Privacy

Young brings claims for defamation and invasion of privacy

alleging that the defendants defamed him and presented him in a

false light in Wharton's press release about his decision to

dismiss Young. The defendants, raising several defenses, assert

that Young cannot prove either claim.

Under New Hampshire law, "[t]o establish defamation, there

must be evidence that a defendant failed to exercise reasonable

care in publishing, without a valid privilege, a false and

defamatory statement of fact about the plaintiff to a third

party." Independent Mech. Contractors, Inc. v. Gordon T. Burke &

Sons, Inc.,

(1993). "A statement is defamatory

if 'it tends so to harm the reputation of another as to lower him

28 in the estimation of the community or to deter third persons from

associating or dealing with him.'" Faigin v. Kelly,

at *3 (1st Cir. July 19, 1999) (guoting Restatement,

Second, of Torts § 559 (1977) and applying New Hampshire law);

see also Rossi v. Pelham,

(D.N.H. 1997).

The defendants argue that they were privileged to issue the

press release. New Hampshire has recognized a conditional

privilege "'if the facts, although untrue, were published on a

lawful occasion, in good faith, for a justifiable purpose, and

with a belief, founded on reasonable grounds of its truth , '

provided that the statements are not made with actual malice."

Simpkins v. Snow,

(1995) (guoting Chaanon v.

Union-Leader Co.,

((1961)). But see Duchesnave

v. Munro Enterprises, Inc.,

(1984) (holding

that the Chaanon privilege was inconsistent with the negligence

standard for proving defamation). To the extent such a privilege

still exists under New Hampshire law, the defendant bears the

burden of proving its application in a particular case. See

In support of their assertion of a conditional privilege,

the defendants say only:

It is a long-standing principle of New Hampshire law that a party cannot be held liable for a statement or publication tending to disparage private character if such a statement is called for by social duty or is necessary and proper to enable him to protect his own

29 interests or those of another, provided the statement is made in good faith without the intent to defame.

Defs. memo at 16. The defendants cite cases that predate Chaanon

and Duchesnave. They offer no factual basis to justify applying

the conditional privilege in this case. Based on the record, the

defendants have not carried their burden to show that they were

privileged to issue the press release.

The defendants also argue that Young was a public figure

subject to a different and higher standard than a private

plaintiff. In defamation actions, the plaintiff's status vis a

vis the public determines the level of First Amendment protection

accorded the defendant's speech. See Pendleton v. Haverhill,

(1st Cir. 1998). A purely private plaintiff, with no

public status, "can succeed in defamation actions on a state-set

standard of proof (typically negligence), whereas the

Constitution imposes a higher hurdle for public figures and

reguires them to prove actual malice."

(explaining evolution

of First Amendment standard in defamation). A public figure

plaintiff must prove by clear and convincing evidence that the

defendant published the defamatory statements with actual malice.

See Faigin,

at *4. Plaintiffs hold "public

figure" status if they assume roles with particular prominence in

society such as "by occupying positions of 'persuasive power and

influence,'" or by " 'thrust[ing] themselves to the forefront of

30 particular public controversies in order to influence the

resolution of the issues involved.'" Pendleton,

(quoting Gertz v. Robert Welch, Inc.,

(1974)).

It is the defendant's burden to prove that the plaintiff is a

public figure. See Bruno & Stillman, Inc. v. Globe Newspaper

C o .,

(1st Cir. 1980); see also Foretich v.

Capital Cities/ABC, Inc.,

(4th Cir. 1994).

The defendants contend that the controversy surrounding

Young was a public controversy and that Young voluntarily thrust

himself into the controversy by giving interviews to reporters,

publishing a letter on campus, and holding a support rally.

Young points out that there were different controversies, saying

that the complaints filed with the College by Otten and Bente in

the fall of 1993 were distinct from the later charges made by

Schneider. The publicity attributable to Young that the

defendants cite pertains to the Otten and Bente charges and the

College's complaint procedures, not to the charges made by

Schneider. In fact, the newspaper articles also refer to the

College's press releases for much of their information.

To find public figure status requires "a detailed fact-

sensitive determination" both as to whether a public controversy

existed and "the nature and extent of the person's participation

31 in the controversy." Penobscot Indian Nation v. Key Bank of

Maine,

(1st Cir. 1997) (quotation omitted).

The record presented by the defendants is not sufficient to prove

that a public controversy existed as to Schneider's charges and

the College's actions or that Young voluntarily thrust himself

into the controversy by seeking publicity on the issues to such

an extent as to abandon his private status. The defendants,

therefore, have not carried their burden to prove that Young was

a public figure. The defendants' argument in a footnote, based

on New York law, that the malice standard should apply simply

because the issue was one of public concern is insufficient for

consideration on summary judgment.

The defendants argue that Young cannot prove his claim of

"false light" invasion of privacy because, they contend, he

cannot show the publicity in the press release was false. While

the New Hampshire Supreme Court said in dicta that it would

recognize the tort of invasion of privacy based on a false light

theory, the court provided little explanation of the elements of

the claim other than publicity and falsity. See Hamberqer v.

Eastman,

(1964). The court has not had

occasion since 1964 to consider false light invasion of privacy.9

9Other jurisdictions that recognize false light invasion of privacy follow the elements provided in the Restatement (Second) of Torts § 652 (1977):

32 The defendants argue that the press release was not false

because Wharton properly determined that Schneider's charges were

credible and he was authorized to dismiss Young. The propriety

of Wharton's processes and the truth of his conclusions and

statements, however, are hotly contested in this case. The

defendants' asserted defenses of privilege and voluntary

publicity fail for the same reasons as in the context of the

defamation claims. The defendants have not demonstrated by

undisputed facts that they are entitled to summary judgment on

One who falsely gives publicity to a matter concerning another that places the other in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

See, e.g., Ostrzenski v. Seiqel,

(4th Cir. 1999 (applying Maryland law); Frobose v. American Savings and Loan Ass'n ,

(7th Cir. 1998) (applying Illinois law); Moldea v. New York Times Co.,

(D.C. Cir. 1994); McGhee v. Sanilac County,

(6th Cir. 1991) (applying Michigan law); Zeran v. Diamond Broadcasting Inc.,

(W.D. Okla. 1997); McCammon & Assoc., Inc. v. McGraw-Hill Broadcasting Co., 716 P.2ds 490, 492 (Colo. C t . A p p . 198 6).

33 Young's invasion of privacy claim.

Conclusion

For the foregoing reasons, the defendants' motion for

summary judgment (document no. 59) is granted as to the

plaintiff's § 1983 claims against the University System, the

substantive due process claim, and the claims of breach of

contract and of the covenant of good faith and fair dealing, The

motion is otherwise denied.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

September 21, 1999

cc: Thomas F. Kehr, Esguire Michael D. Urban, Esguire Joseph M. McDonough III, Esguire

34