Rhude v. Belknap County, NH CV-99-397-JD 10/31/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Christine M. Rhude

v. Civil No. 99-397-JD Opinion No.

Belknap County, New Hampshire et a l .

O R D E R

The plaintiff, Christine Rhude, brings suit against her

former employer, Belknap County, New Hampshire, and several

county officials in connection with the events surrounding the

County's termination of her employment. After Rhude filed her

first amended complaint, all but one of the defendants ("the

Belknap County defendants") moved for summary judgment (document

no. 14). The remaining defendant, Richard Boehme, moved for

partial summary judgment (document no. 15). Rhude also moved for

partial summary judgment (document no. 16). Rhude subsequently

filed a second amended complaint with leavefrom the court. This

complaint repeated three claims that were previously pled and

added a claim for negligent supervision. The court granted the

Belknap County defendants leave to file a supplemental motion for

summary judgment to address the claim for negligent supervision

(document no. 33). Therefore, the court construes the Belknap

County defendants' prior motion for summary judgment (document no. 14) as a motion for partial summary judgment on the claims

addressed therein.1

Rhude assents to summary judgment in Boehme's favor on the

claims brought under

. Therefore, Boehme's

motion for partial summary judgment is granted (document no. 15).

Background2

Christine Rhude worked at the Belknap County Nursing Home

from September of 1991 until May of 1998, first as a Certified

Nursing Assistant and later as a clerical aide. In the spring of

1998, rumors began circulating among the nursing home staff that

Richard Boehme, the Head of Environmental Services, was having an

1Normally, when an amended complaint is filed, any previously filed dispositive motions that targeted an earlier complaint become moot. In this case, leave to file a second amended complaint was granted because the new count did not involve facts that were not previously alleged. The court then permitted the defendants to supplement their previously filed motion for summary judgment in order to address the added count of negligent supervision.

2The facts in this section are taken from the parties' statements of material facts. The court directs the plaintiff's counsel to review the Local Rule that requires a party opposing summary judgment to support its statement of material facts with "appropriate record citations." LR 7.2(b)(2). A single reference to attached affidavits in their entirety does not satisfy the local rule's requirement.

2 extramarital affair with Terry Goodwin, another nursing home

employee. Rhude claims that in April or May of 1998, she heard

Boehme make a comment about his attraction to Goodwin. Rhude

claims Boehme believed that she was inciting the rumors about the

affair, and Boehme began approaching Rhude at work and calling

her at home to demand that she do something to stop the rumors.

Rhude asserts that she began to be afraid of Boehme. Rhude and a

co-worker, Deborah White, met with the Nursing Home

Administrator, Robert Chase, to complain about Boehme's behavior.

Rhude told Chase that she was afraid of Boehme, but Chase took no

action in response to her complaints.

On May 13, 1998, a heated altercation between Rhude and

Boehme occurred at the nursing home, resulting in police being

called to the scene. On May 14, Chase and Kathy Lord, Director

of Nurses, met with Rhude and discussed the incident. At the end

of the meeting. Chase informed Rhude that she would be suspended

with pay for two weeks, and that he would send her a letter to

that effect. Chase did not explicitly inform Rhude at their

meeting that she might be terminated or that the Belknap County

Commission would meet to discuss her possible termination. The

letter of suspension he sent Rhude stated, "If you are found to

share any responsibility for the incident, you are subject to

disciplinary action under RSA 28:10-a. If you have any

3 questions, please feel free to contact me." The letter did not

refer to a hearing or invite any other response from Rhude.

On May 20, 1998, Chase filed a report with the Belknap

County Commission, recommending that Rhude's employment be

terminated. That same day, the County Commission met and issued

Rhude a letter notifying her that her employment would be

terminated as of May 30. Rhude had no prior notice of the County

Commission's meeting and was not present at the meeting. The

County Commission also voted to terminate Boehme, but allowed him

the opportunity to resign first, which he did.

Rhude retained counsel and appealed her termination to the

Belknap County Personnel Committee by letter on June 16, 1998.

Rhude's counsel, David Slawsky, and defendants' counsel, Bradley

Kidder, agreed to schedule a hearing before the Personnel

Committee on July 30, 1998. Slawsky made several attempts in the

month of July to ascertain the procedural rules that would apply

at the appeal hearing. On July 22, Kidder sent Slawsky a

document titled "Appendix D: Belknap County Personnel Committee

Rules for Discharge Appeal Hearings" which states that a

discharge appeal hearing must be held within fifteen days of the

employee's request, and that failure of the county to abide by

this requirement results in immediate revocation of discharge and

reinstatement. Kidder identified this "Appendix D" as part of

4 the nursing home's collective bargaining agreement. On July 24,

Rhude filed a motion for immediate revocation of discharge with

the Personnel Committee. On July 29, Rhude withdrew her appeal,

citing uncertainty over the procedural rules that would be

employed at the hearing. She subsequently filed a charge with

the New Hampshire Commission for Human Rights and later, this

lawsuit. Four counts are included in Rhude's second amended

complaint: (1) a § 1983 claim for violation of Rhude's right to

procedural due process; (2) constructive discharge; (3) negligent

supervision; and (4) assault.

Standard of Review

Summary judgment is appropriate when "the pleadings,

depositions, answers to interrogatories, and admissions on file,

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

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

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

56(c). The record evidence is taken in the light most favorable

to the nonmoving party, indulging all reasonable inferences in

its favor. See Fernandes v. Costa Bros. Masonry, Inc.,

(1st Cir. 1999) . The court must consider the record as

a whole, and may not make credibility determinations or weigh the

evidence. See Reeves v. Sanderson Plumbing Prods., Inc., 120 S.

5 C t . 2097, 2110 (2000) . When parties file cross motions for

summary judgment, "the court must consider each motion

separately, drawing inferences against each movant in turn."

Reich v. John Alden Life Ins. Co.,

(1st Cir. 1997).

The party seeking summary judgment must first demonstrate

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

See DeNovellis v. Shalala,

(1st Cir. 1997)

(citing Celotex Corp. v. Catrett,

(1986)). An

issue of fact is genuine if there is sufficient evidence to

permit a rational fact-finder, considering the evidence in the

light most favorable to the nonmoving party, to find for either

party. See Medina-Munoz v. R.J. Reynolds Tobacco Co.,

(1st Cir. 1990).

In response to a properly supported motion for summary

judgment, the nonmoving party bears the burden to show a genuine

issue for trial by presenting significant material evidence in

support of the claim. See Tardie v. Rehabilitation Hosp.,

(1st Cir. 1999). Summary judgment will not be

granted as long as a reasonable jury could return a verdict in

favor of the nonmoving party. Anderson v. Liberty Lobby, Inc.,

(1986) .

If the moving party will bear the burden of proof at trial,

summary judgment is appropriate only if "(1) the moving party

6 initially produces enough supportive evidence to entitle the

movant to judgment as a matter of law (i.e., no reasonable jury

could find otherwise even when construing the evidence in the

light most favorable to the non-movant), and (2) the non-movant

fails to produce sufficient responsive evidence to raise a

genuine dispute as to any material fact." Murphy v. Franklin

Pierce Law Ctr.,

(D.N.H. 1994) (citing

Fitzpatrick v. City of Atlanta,

(11th Cir.

1993)).

Discussion

I. Due Process: Cross-Motions

Rhude contends that she is entitled to summary judgment on

her due process claim because the defendants3 terminated her

employment without first giving her notice, explaining the

evidence against her, or giving her the opportunity to present

her side of the story.4 The defendants argue that they are

3For the rest of this order, the court's references to "the defendants" shall be understood to mean the Belknap County defendants and not Richard Boehme, unless otherwise noted.

4The defendants interpret Rhude's complaint to allege a separate due process claim based on deficiencies in the procedures followed after her employment was terminated. However, Rhude does not appear to make such a claim. Her motion for partial summary judgment on the due process count relies on

7 entitled to summary judgment because Rhude received due process

both before and after her termination.

A. Exhaustion of state remedies

The defendants contend that Rhude cannot bring a § 1983 due

process claim because she has failed to exhaust the remedies

available to her under New Hampshire law, as provided by the

terms of the collective bargaining agreement between the Belknap

County Nursing Home and the State Employees Association of New

Hampshire. Rhude does not address this argument in her objection

to the defendants' motion.

In Patsy v. Board of Regents,

(1982), the

Supreme Court held that a plaintiff is not required to exhaust

administrative remedies before asserting a § 1983 claim in

an alleged violation in the lack of pre-termination due process only. Likewise, her objection to the defendants' motion for summary judgment does not dispute their argument that the scheduling of her post-termination hearing did not violate due process. Instead, Rhude discusses the post-termination events in the context of the curability of any pre-termination due process violation. Therefore, the court understands Count One of Rhude's second amended complaint to include only one claim based on a violation of her right to due process before termination of her employment. C f . Cleveland Bd. of Educ. v. Loudermill, 47 0 U.S. 532, 547 n.12 (1985) (noting allegation of post-termination due process violation in administrative delay "is not an alternative theory supporting the same relief, but a separate claim altogether"). federal court. See Kercado-Melendez v. Aponte-Rogue,

(1st Cir. 1987); Murphy v. City of Manchester,

(D.N.H. 1999). The Patsy rule applies where

state proceedings are remedial rather than coercive, and where

"the federal plaintiff claim[s] actual injury arising from action

undertaken and completed by state actors." Kercado-Melendez,

. Here, Rhude chose not to appeal her termination

through the procedures available to her under state law, so there

is no ongoing state proceeding that might cause this court to

abstain. See

. Accordingly, Rhude's due process claim

is not precluded by her failure to exhaust available

administrative procedures.

B. Adequacy of Pre-Termination Process

The parties do not dispute that Rhude had a property

interest in her continued employment with Belknap County, thereby

entitling her to constitutional due process in the termination of

this interest. See Loudermill, 470 U.S. at 541. They do dispute

whether Rhude received all of the process due under the

Constitution.

Before a tenured public employee may be terminated, she "is

entitled to oral or written notice of the charges against [her],

an explanation of the employer's evidence, and an opportunity to

9 present [her] side of the story." Id. at 546. The First Circuit

has held that to satisfy Loudermill's notice requirement,

"officials must provide the individual with notice of the charges

alleged against [her] and any proposed action the officials

intend to take, based on those charges." Cotnoir v. Univ. of

Maine Svs.,

(1st Cir. 1994); cf. O'Neill v. Baker,

(1st Cir. 2000) (stating notice that termination

would be considered at hearing was not required where employee

had prior notice that termination could result if she did not

show improvement).

The process required before termination depends in part on

the specific post-termination remedies that are available to the

plaintiff. See Loudermill. 470 U.S. at 1495; Brasslett v. Cota.

(1st Cir. 1985) . While the existence of post­

termination procedures is therefore relevant to the pre­

termination due process analysis, the purpose of the pre­

termination hearing is to prevent mistaken decisions and ensure

that the grounds for the termination are reasonable and true.

See Loudermill, 470 U.S. at 545-46. The Loudermill pre­

termination requirements achieve this purpose and ordinarily,

post-termination procedures will not cure a pre-termination due

process violation. See Cotnoir,

. Post­

termination process alone may suffice where pre-termination

10 process is impractical, or where the termination results from

random and unauthorized actions. See Zinermon v. Burch,

(1990); Herwins v. City of Revere,

(1st Cir. 1998); Brown v. Hot, Sexy & Safer Prods., Inc.,

(1st Cir. 1995); Lowe v. Scott,

(1st Cir. 1992). Neither situation exists in this case.

Therefore, the court assesses the pre-termination process

provided here using the Loudermill standard.

The day after her altercation with Boehme, Rhude met with

Chase and Lord to discuss what happened. She states in her

affidavit, and the defendants do not dispute, that neither

supervisor told her at that meeting that termination was a

possibility or that the County Commission would discuss the

matter. Instead, Chase informed her she would be suspended. As

in Cotnoir. Rhude was warned that "unspecified disciplinary

action" could result, but was not specifically told that

termination was being considered. Cotnoir,

; cf.

Brasslett,

(finding no due process violation

where employee was notified of possibility of discharge). Under

the First Circuit's notice standard, Rhude did not receive notice

before or during the meeting with Chase and Lord that termination

was being considered. Consequently, the meeting with Chase and

Lord was not a constitutionally sufficient opportunity to be

11 heard, because Rhude could not meaningfully present a case

against termination without first being informed that termination

was being considered. See Cotnoir,

.

However, Chase's letter of suspension notified Rhude that

she could be disciplined under RSA 28:10-a if she were found to

share responsibility for the incident. RSA 28:10-a outlines the

grounds and procedures for suspending or discharging county

employees. See RSA 28:10-a (1988). This letter is dated May 14,

1998, six days before the County Commission decided to terminate

Rhude's employment. The question arises whether this letter

served as adequate notice to Rhude that her employment might be

terminated, an issue that neither party has addressed.

The court need not resolve this question, however, because

even if the suspension letter did give Rhude sufficient pre­

termination notice, she was not given an opportunity to argue

against termination after she received this notice. The

suspension letter did not indicate that the County Commission

would meet to discuss her case, nor did it indicate how or when

it would be determined whether Rhude shared responsibility for

the incident with Boehme. The suspension letter did not invite

Rhude to submit any further written explanation of her actions.

While the plaintiff may bear some responsibility to request a

pre-termination hearing, she must at least be informed of the

12 option to request a hearing. See, e.g., Feliciano-Anqulo v.

Rivera-Cruz,

(1st Cir. 1988) (plaintiff was

instructed to request a hearing or respond by letter to notice of

intended termination); Moody v. Town of Weymouth,

(1st Cir. 1986) (plaintiff was invited to respond by letter to

notice of intended termination).

Therefore, even if the letter of suspension did provide

Rhude with sufficient pre-termination notice of the specific

disciplinary action being considered, she was not given an

opportunity to be heard after receiving such notice. As

discussed above, the post-termination procedures do not cure this

violation of Rhude's right to due process before termination.

Consequently, Rhude was not given due process prior to the

County's decision to terminate her employment, and she is

entitled to summary judgment on her claim that the defendants

violated her right to due process prior to termination of her

employment.

II. Constructive Discharge

Count II of Rhude's second amended complaint alleges a claim

for constructive discharge. Rhude alleges that she resigned from

her employment when she withdrew her appeal from the Belknap

County Personnel Committee, and that she did so reasonably in

13 light of the County's actions.

A constructive discharge claim requires proof that the

plaintiff was compelled to resign because of intolerable working

conditions. See Suarez v. Pueblo Int'l, Inc., __ F.3d ,

(1st Cir. Oct. 11, 2000); Landrau-Romero v.

Banco Popular De Puerto Rico,

(1st Cir. 2000) .

The record evidence establishes that the County terminated Rhude

from her employment on May 30, 1998. Her decision in July of

1998 not to appeal the County Commission's decision to fire her

was not equivalent to a resignation, as she had already been

fired. Therefore, the defendants are entitled to summary

judgment on this count.

III. Negligent Supervision

Also before the court is the defendants' supplementary

motion for summary judgment on Rhude's claim of negligent

supervision (document no. 33). Rhude alleges that Robert Chase

failed to properly supervise Boehme by neglecting to respond to

repeated complaints about Boehme's conduct. Rhude contends that

Chase's failure to supervise Boehme led to the altercation

between her and Boehme, and that Belknap County is liable through

the doctrine of respondeat superior for the actions of Chase and

Boehme.

14 "An employer may be directly liable for damages resulting

from the negligent supervision of its employee's activities."

Trahan-Laroche v. Lockheed Sanders, Inc.,

(1995); see also Marquav v. Eno,

(1995)

(discussing negligent hiring or retention). Under this theory,

the employer's liability is direct, not vicarious, and the

employer's duty of care may extend to actions outside the scope

of employment. See Trahan-Laroche,

.

Alternatively, "an employer may be held vicariously liable for

the tortious acts of an employee committed incidental to or

during the scope of employment."

Rhude's complaint refers to respondeat superior, but in her

opposition to summary judgment she cites Trahan-Laroche for the

direct liability theory, so it is unclear whether she proceeds

under one or both theories. The parties have not addressed

whether the alleged assault by Boehme occurred within the scope

of employment, and the court does not resolve that issue now. In

any event, the record evidence shows that Rhude and other

employees were concerned about Boehme's hostile and abusive

behavior and reported their concerns to Chase and other county

officials. The evidence also indicates that no concrete action

was taken in response to these complaints. Whether this inaction

is causally linked to the altercation between Boehme and Rhude is

15 a genuine issue of material fact precluding summary judgment.

IV. Assault

Rhude has alleged a claim of assault against the defendant,

Boehme, concerning which no dispositive motions have been filed.

In her second amended complaint, Rhude added an allegation that

Belknap County is liable for Boehme's actions under the doctrine

of respondeat superior. The Belknap County defendants did not

move to supplement their motion for summary judgment to address

this allegation.

Conclusion

The defendant Boehme's motion for partial summary judgment

on Count II of the first amended complaint (document no. 15)

shall be construed as a motion for partial summary judgment on

Count I of the second amended complaint, and is granted.

The plaintiff's motion for partial summary judgment on Count

11(c) of the first amended complaint (document no. 16) shall be

construed as a motion for partial summary judgment on Count I of

the second amended complaint, and is granted against the Belknap

County defendants.

The Belknap County defendants' motion for summary judgment

(document no. 14) is construed as a motion for partial summary

16 judgment and is denied as to Count I of the second amended

complaint, and is granted as to Count II of the second amended

complaint. The Belknap County defendants' supplemental motion

for summary judgment on Count III of the second amended complaint

(document no. 33) is denied.

A number of issues raised in this case have been resolved by

this order. The parties should engage in good faith efforts to

arrive at a nontrial disposition of the case.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

October 31, 2000

cc: David P. Slawsky, Esquire John T. Alexander, Esquire Naomi L. Mooney, Esquire

17