LaForge v. Howard, Town of Hooksett CV-00-437-JD 04/30/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Patrick LaForge

v. Civil No. 00-437-JD Opinion No.

Michael J. Howard, in his Individual and Official Capacities, and the Town of Hooksett

O R D E R

The plaintiff, Patrick LaForge, brings an action against his

former employer, the Town of Hooksett Fire Department, and Fire

Chief Michael J. Howard, arising from the circumstances

surrounding his resignation from the Hooksett Fire Department.

LaForge brings two claims under

, alleging that

the defendants violated his constitutional rights under the First

and Fourteenth Amendments, and four state claims, alleging

defamation, intentional interference with contractual relations,

malicious prosecution, and wrongful termination. The defendants

move for summary judgment. LaForge objects.

Standard of Review

Summary judgment is appropriate when "the pleadings,

depositions, answers to interrogatories, and admissions on file,

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

issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).

" 'A dispute is genuine if the evidence about the fact is such

that a reasonable jury could resolve the point in favor of the

non-moving party. A fact is material if it carries with it the

potential to affect the outcome of the suit under the applicable

law.'" Santiago-Ramos v. Centennial P.R. Wireless Corp.,

(1st Cir. 2000), cruoting Sanchez v. Alvarado, 101

F .3d 223, 227 (1st Cir. 1996).

When considering a motion for summary judgment, the court

views the evidence in the light most favorable to the nonmoving

party. See Davila-Perez v. Lockheed Martin Corp.,

(1st Cir. 2000). The moving party must demonstrate the

absence of genuine issues of material fact in the record. See

Celotex Corp. v. Catrett,

(1986). If the

motion is properly supported, the nonmoving party then must set

forth facts showing that a genuine issue of material fact exists.

See Anderson v. Liberty Lobby, Inc.,

(1986).

Background

Patrick LaForge was employed by the Hooksett Fire Department

("HFD") in 1992 as a part-time firefighter and became a full-time

employee in 1993. In 1998 LaForge was certified as a paramedic

and began working in that capacity for the HFD. After earning

2 his paramedic certification, LaForge began seeking employment

elsewhere, to enhance his professional development. At that time

the HFD emergency service was supplemented by Tri-Town Volunteer

Emergency Ambulance Service ("Tri-Town"), which provided advanced

life support services. Both the HFD and Tri-Town responded to

emergency calls.

In June of 1999, LaForge applied for a position with the

Concord Fire Department ("CFD"). As part of the application

process, LaForge authorized the CFD to conduct a background

check. The CFD extended a verbal offer of employment to LaForge

and the CFD Division Commander, Christopher Pope, wrote LaForge

on July 30, confirming the offer. The letter stated: "This will

serve to confirm our verbal employment offer to you for the

position of firefighter/paramedic and your acceptance of the

same. . . . Please report to our headquarters, 35 Green St., at

0800 hours, Friday, August 13, 1999."

LaForge tendered his resignation to the HFD on August 2 and

gave notice that his last shift would be August 14, 1999.

LaForge submitted his letter of resignation to Chief Howard, who

initialed it as received, and LaForge, Chief Howard, and Deputy

Chief Gary Lambert discussed LaForge's reasons for leaving the

3 HFD.1 At that time. Chief Howard had been with the HFD for two

months. During this meeting. Chief Howard inquired into

LaForge's reasons for leaving the HFD. LaForge indicated that he

felt that ranking officers demonstrated preferential treatment

when determining shift assignments and other departmental

matters. He also expressed his opposition to the suggestion that

the HFD might assume full EMS ambulance service for the Town of

Hooksett ("Hooksett"), independent of Tri-Town. Although

Hooksett had not yet established a formal proposal for a town-

operated ambulance service, the idea had been discussed for some

time. LaForge shared with Chief Howard his concerns that the HFD

was not prepared to effectively handle full EMS services in the

community. Lambert expressed his disagreement with LaForge's

view.

LaForge returned home and discussed the meeting and his

concerns about HFD assuming ambulance services with his

girlfriend, Anita Lombardo, an employee of Tri-Town. Lombardo

suggested he bring specific examples to Chief Howard to

illustrate his concerns. On August 5, Lombardo told LaForge

1 Chief Howard testifies in his deposition that he believes he submitted LaForge's resignation to the town administrator's office the next day, August 3, 1999. Nothing in the record indicates when a resignation becomes official, however the parties do not dispute that the resignation LaForge tendered on August 2 was binding.

4 about an emergency call by the HFD that was not conducted

according to procedure. LaForge and Lombardo agreed that she

would attempt to secure a copy of the "run form" for that call

(run forms report the actions taken on emergency calls). Anita

went through the Tri-Town chain of command and supplied LaForge

with a copy of the run form for the call. The form showed that

the HFD member who participated in the call and filled out the

form failed to do so according to procedure. In some places, the

form had been marked with black, although the parties dispute the

effectiveness of that attempted redaction.2

On August 6, LaForge met with his supervising officer.

Lieutenant Mark Hurley, and showed him the run form. L t . Hurley

acknowledged that it was not filled out correctly and agreed to

go with LaForge to show it to Chief Howard. When L t . Hurley and

LaForge stopped by Chief Howard's office that day, however. Chief

Howard was not present. L t . Hurley did not give LaForge express

permission to speak with Chief Howard on his own.

Later that day LaForge encountered Chief Howard outside Fire

Station One. LaForge approached Chief Howard and asked if he

could speak with him. Although Chief Howard did not answer, he

2 A copy of the run form, submitted by LaForge, shows blackened areas over portions of the form. The patient's name is not visible on the copy of the form that is in the record.

5 stopped walking and began listening to LaForge. LaForge showed

Chief Howard the run form and expressed his concerns about HFD's

ability to assume responsibility for EMS ambulance services.

According to LaForge, he spoke for about eight minutes. Chief

Howard states the discussion only lasted about ninety seconds.

Chief Howard also affirms that confidential patient information

was visible on the run form despite the attempted redaction.

Chief Howard did not respond to LaForge's comments. He became

angry, got in his car, and left the station.

Chief Howard reflected on the encounter over the weekend,

and then scheduled a meeting with L t . Hurley for Monday, August

9. He insisted that L t . Hurley bring union representation.

Chief Howard discussed with L t . Hurley LaForge's use of the run

form, which Chief Howard believed breached patient

confidentiality and was obtained improperly. Chief Howard

learned from L t . Hurley that LaForge had approached Chief Howard

without L t . Hurley's permission, which constituted a breach of

HFD's chain of command. Chief Howard contacted Town

Administrator Mike Farrell to report the events and arranged a

meeting with LaForge and Lt. Hurley for Friday, August 13, to

discuss the situation. Although Chief Howard expected that the

situation would probably require discipline, he affirms he had

made no decision to terminate LaForge. On August 10 Chief Howard

6 contacted the New Hampshire Division of Emergency Medical

Services ("EMS Bureau") to clarify his understanding of the state

laws governing EMS services.

At some point following submission of LaForge's resignation

to the town administrator. Chief Howard became aware that

LaForge's resignation, which would take effect August 14, did not

provide fourteen days' notice as required by the firefighters'

collective bargaining agreement. Insufficient notice would

result in forfeiture of some of LaForge's benefits, such as

accrued vacation pay. In an August 6 phone call and an August 10

letter. Chief Howard notified LaForge that his notice was

insufficient to collect full benefits. However, Chief Howard

told LaForge that he believed they could work out the start date

with the CFD, so that LaForge could collect his full benefits.

On August 11 Chief Howard met with LaForge and suggested

that LaForge resubmit his resignation with a termination date of

August 17. Chief Howard told LaForge that he had spoken with

someone at the New Hampshire Retirement System, and learned that

a revised resignation effective August 17 would remedy the notice

deficiency so that LaForge would collect his benefits. Chief

Howard said that the CFD was agreeable to modifying LaForge's

orientation schedule to accommodate his delayed start date, and

he advised LaForge to finalize this arrangement with the CFD

7 immediately. LaForge met with Commander Pope at the CFD on the

morning of August 11 to discuss his start date arrangements.

Commander Pope agreed to the revised start date of August 17.

LaForge, however, never submitted a revised resignation to the

town.

After his meeting with LaForge on August 11, Commander Pope

contacted Chief Howard to confirm the arrangements, and they

arranged a personal meeting for that afternoon. It is disputed

in the record who initiated the meeting and for what purpose,

although both agree that they expected to discuss issues

involving LaForge. At the meeting. Chief Howard revealed

information about LaForge that the CFD had not known previously,

including the run form incident and Chief Howard's inquiry to the

EMS Bureau.3 During the meeting Commander Pope and Chief Howard

discussed these incidents and Chief Howard told Commander Pope

that he believed LaForge had gone outside the chain of command

and had breached patient confidentiality. According to Commander

Pope, Chief Howard told him that he planned to discipline, and

possibly terminate, LaForge on August 13. Chief Howard disputes

that statement.

Commander Pope discussed LaForge's complete file with CFD

3 Also present at the meeting were Deputy Chief Lambert and CFD Bureau Commander Jim Clow. Chief Dionne and other CFD officers later that evening, and they

decided to postpone hiring LaForge. Commander Pope phoned

LaForge and told him that the CFD was postponing his hiring and

referring the matter to their personnel department, and advised

him to consider withdrawing his resignation from the HFD. On

August 12, Commander Pope sent LaForge a letter stating that

based on information regarding his background which they had

recently discovered, they were postponing his offer of employment

until the issues were resolved to their satisfaction. LaForge

wrote to the town administrator on August 12 asking to withdraw

his resignation, noting that he had turned down a prior job offer

due to family reasons.

Chief Howard met with Farrell, his assistant Liz Dinwoodie,

and HFD Deputy Chief Gary Lambert on August 12. LaForge was not

given notice of the meeting. At this meeting, it was determined

that LaForge would be "relieved of duty," with pay, for his

remaining shifts with the HFD.4 The defendants state that the

leave was not a disciplinary measure. Farrell explained that

LaForge "was raising such a ruckus in the department [over

4 At times throughout his deposition testimony, Farrell uses the term "administrative leave" to describe the action taken to relieve LaForge of duty. However, neither the Hooksett personnel plan nor the HFD collective bargaining agreement provides for "administrative leave" as a personnel action, and Farrell does not define his use of the term.

9 Hooksett's readiness to take on ambulance service] that why go

through the agony for two more days? Just pay him and be done

with it." Farrell also decided not to accept LaForge's

withdrawal of his resignation, but instead to "let him go to

Concord and be done with it." Chief Howard attended the meeting,

but he affirms that the decision to relieve LaForge of duty had

been made by Farrell prior to the meeting. Farrell states that

the group as a whole decided what action to take.

When LaForge arrived at the station for his scheduled shift

on August 13, he was met by L t . Hurley, Chief Howard, and Captain

Landry. Chief Howard told LaForge that his withdrawal of

resignation had been denied and that he was relived of duty

effective that morning, upon a directive from the town

administrator. He told LaForge that his recent actions "placed

the town at great risk and liability and that he would have no

access to any HFD facilities upon leaving, or any contact with

any on-duty HFD personnel." (Howard Aff. at p. 207, line 11-16) .

LaForge was instructed to collect his gear and return it to

Captain Landry. LaForge complied and left the premises.

A letter dated August 12 was sent to LaForge restating Chief

Howard's comments. The letter was signed by Chief Howard and

Farrell. The letter, which reads as if written by Chief Howard,

states, "This directive was carried out by self to you upon

10 notice from the Town Administrator." The letter also states that

LaForge would not be paid his compensation benefits because he

had failed to submit a revised resignation as instructed.5 The

CFD revoked LaForge's employment offer on September 24, 1999.

Chief Howard filed a formal complaint with the EMS Bureau on

September 7, 1999, alleging that LaForge, Lombardo, and Tri-Town

had violated state law in connection with their conduct

surrounding the run form incident. In response to Chief Howard's

complaint the EMS Bureau conducted a full investigation. On

December 7, 1999, the EMS Bureau issued its findings that as to

each of Chief Howard's complaints, "no violation of the statute

is apparent."

LaForge brought this action pursuant to

on

September 13, 2000. In Count I, he alleges that Chief Howard and

Hooksett terminated him and took adverse employment action

against him in retaliation for his exercise of First Amendment

free speech rights regarding the ambulance issue. He also

alleges, in Count II, that Chief Howard and Hooksett deprived him

of a liberty interest in violation of his procedural and

substantive due process rights under the Fourteenth Amendment.

Further, LaForge brings four state law claims against Chief

5 LaForge filed a union grievance claiming his vacation pay. This was denied.

11 Howard and Hooksett. In Count III, he alleges that Chief Howard

defamed him by publishing false and defamatory information about

him to the CFD. In Count IV, LaForge brings a claim of

intentional interference with contractual relations, alleging

that Chief Howard interfered with his contractual relations with

the CFD, which resulted in the CFD's reconsidering and eventually

revoking LaForge's employment offer. In Count V, LaForge brings

a claim of malicious prosecution, alleging that Chief Howard

filed a complaint about him with the state EMS Bureau without

probable cause. And in Count VI, he brings a claim of wrongful

termination, alleging that the town terminated him in retaliation

for expressing his opinion on an issue of public policy.

Discussion

The defendants move for summary judgment on all counts.

They argue that no genuine issues of material fact exist and they

are entitled to judgment on the merits in their favor as a matter

of law. In the alternative, they argue that Chief Howard is

entitled to immunity from the claims against him as an

individual, and that Hooksett did not violate LaForge's rights,

as alleged in the § 1983 claims, and is entitled to discretionary

function immunity as to the state claims.

As a preliminary matter, the defendants seek dismissal of

12 any claims brought against Chief Howard in his official capacity

as chief of the HFD, asserting that those claims are actually

claims against the town, and since Hooksett is a named defendant,

those claims are duplicative. "[0]fficial capacity suits

generally represent only another way of pleading an action

against an entity of which an officer is an agent." Monell v.

Dep't of Social Servs. of N.Y.,

, 690 n.55 (1978).

"Suits brought against parties in their official capacity are

treated as suits against the municipality." Bryant v. Noether,

, 104 n.2 (D.N.H. 2001), citing Brandon v.

Holt,

(1985). Here, Chief Howard is an

official of Hooksett, and the town is a named defendant. Claims

against Chief Howard in his official capacity would be

duplicative of the claims against Hooksett. To the extent that

LaForge brings claims against Chief Howard in his official

capacity, those claims are dismissed.

I. LaForge's § 1983 Claims

LaForge asserts claims for damages pursuant to

In Count I of his amended complaint, LaForge alleges that

6 Section 1983 provides: "Every person who, under the color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities

13 the defendants violated his rights under the First Amendment. In

Count II LaForge alleges that the defendants violated his rights

to procedural and substantive due process under the Fourteenth

Amendment. The defendants move for summary judgment on all

counts. LaForge objects.

A. First Amendment Claim

The defendants move for summary judgment on the merits of

LaForge's First Amendment claim, on the ground that relieving him

of duty, with pay, and denying his request to rescind his

resignation did not constitute adverse employment action.

Alternatively, Chief Howard contends that LaForge's protected

expression was not a substantial or motivating factor for any

adverse action taken. Because the record does not support

LaForge's First Amendment retaliation claim, the defendants

argue, no basis exists for liability on the part of Hooksett.

LaForge, a public employee, must meet a three-pronged test

to establish a claim for infringement of his First Amendment

right. See Pickering v. Bd. of Educ.,

(1968) .

LaForge must show (1) that his speech on the matter of the HFD

ambulance service was a matter of public concern; (2) that his

secured by the Constitution and laws, shall be liable to the party injured in an action at law."

14 interest and the public's interest in free discourse on that

matter outweighed the countervailing governmental interest in

promoting efficient public service; and (3) that his protected

expression was a motivating or substantial factor in an adverse

employment action. See M t . Healthy City Sch. Bd. of Educ. v.

Dovle,

(1977); Padilla-Garcia v. Guillermo

Rodriquez,

, 78 (1st Cir. 2000); Tang v. R.I. Dep't of

Elderly Affairs,

(1st Cir. 1998). The defendants

contend that LaForge has not met the third prong of the test,

because he was not terminated, and he suffered no other adverse

action.7

An adverse employment action need not rise to the level of

termination to be actionable. See Rutan v. Republican Party of

111.,

(1990). Promotions, transfers, failure to

recall after layoffs, and other "deprivations less harsh than

dismissal" may constitute adverse employment actions.

However, "not everything that makes an employee unhappy is an

7 In their motion for summary judgment the defendants concede that LaForge was engaged in protected expression, and they do not challenge the balancing of interests element. In their reply to LaForge's objection to summary judgment, however, the defendants recede from their concession and argue that LaForge's expression was not protected. LaForge moved to strike the defendants' reply. In a separate order that will issue on this date, the court has granted LaForge's motion in part and strikes the defendants' protected expression argument as raised in its reply.

15 actionable adverse action." Bechtel v. City of Belton,

(8th Cir. 2001) (quotation omitted); see also Blackie

v. State of Maine,

(1st Cir. 1996); Welsh v.

Derwinski,

(1st Cir. 1994). In a retaliation

case, the plaintiff must show that the employer took a materially

adverse employment action against him. Blackie,

;

Larou v. Ridlon,

, 663 n.7 (1st Cir. 1996) (applying

Blackie to § 1983 claim).

"Determining whether an action is materially adverse

necessarily requires a case-by-case inquiry." Welsh,

. "Typically, the employer must either (1) take something of

consequence from the employee, say, by discharging or demoting

her, reducing her salary, or divesting her of significant

responsibilities, or (2) withhold from the employee an

accouterment of the employment relationship, say, by failing to

follow a customary practice of considering her for promotion

after a particular period of service." Blackie,

-

26 (internal citations omitted); see also Simas v. First

Citizens' Fed. Credit Union,

(1st Cir. 1999);

Meanev v. Dever,

(D. Mass 2001); Siaca v.

Autoridad de Acuductos v Alcantarillados de P.R.,

(D.P.R. 2001) (finding adverse employment action for §

1983 First Amendment claim where plaintiff was transferred and

16 denied promotions). "Most cases involving a retaliation claim

are based on an employment action which has an adverse impact on

the employee, i.e., discharge, demotion, or failure to promote."8

Connell v. Bank of Boston,

(1st Cir. 1991),

cert den'd,

(1991) (finding that employee

discharged two weeks prior to notified date of discharge but paid

for full four weeks did not state an adverse employment action

for ADEA claim).

LaForge was relieved of duty, with pay, for the two days

remaining of his employment before his resignation became

effective on August 14. LaForge was not deprived of pay,

benefits, or any other accouterment of employment discernable

from the record.9 Although LaForge was divested of his normal

job responsibilities for his last two shifts, he fails to show

how he was materially adversely affected by not working those

shifts. Since his employment ended on August 14, he was not in a

8Although Connell involved an ADEA claim and not a § 1983 claim, the First Circuit has held that "the fundamental meaning of adverse employment action should remain constant regardless of the particular enabling statute, given their similar anti- discriminatory purpose." Larou.

n.6 (applying ADEA adverse employment action analysis in Connell to a § 1983 claim).

9 LaForge's ineligibility to receive his accrued vacation and sick pay was a result of his own failure to resubmit his resignation effective August 17, instead of August 14.

17 position to be adversely effected by future promotions,

transfers, seniority privileges, or other work-related actions.

See Connell,

. LaForge has not shown a

genuine dispute of material fact as to whether relieving him of

duty with pay constituted an adverse employment action for the

purpose of his § 1983 claim.

LaForge also alleges that Hooksett's denial of his request

to rescind his resignation constitutes an adverse employment

action. "[U]nder certain circumstances an employer's inaction

can operate to deprive an employee of a privilege of employment

that an employee had reason to anticipate he would receive; in

those situations, the deprivation constitutes an adverse

employment action." Blackie.

. A plaintiff must

have a reasonable expectation that an employer will take a

particular action before the employer's failure to do so may be

construed as an adverse employment action. Id.; see also Lynch

v. City of Boston,

(1st Cir. 1999) . A plaintiff's

conjecture that action will occur is not sufficient to establish

a reasonable expectation. See Larou,

.

LaForge acknowledges that the decision to deny his request

to rescind his resignation was entirely within Hooksett's

discretion. Since LaForge's employment was ending pursuant to

the resignation he had submitted, he did not have a reasonable

18 expectation that he would be rehired. Cf. Lynch,

;

Larou,

. LaForge has not shown a factual dispute

that the decision to deny his request to rescind his resignation

deprived him of a privilege of employment he had a reasonable

expectation of receiving. See Blackie,

.

Therefore, because no trialworthy issue remains as to whether

Hooksett's decision not to rescind his resignation was a

materially adverse employment action for the purpose of his §

1983 claim, the defendants are entitled to summary judgment on

that claim.

B. Fourteenth Amendment Due Process Claims

In Count II, LaForge brings claims under the procedural and

substantive due process clauses of the Fourteenth Amendment.

U.S. Const, amend. XIV, § 1. LaForge asserts that the defendants

violated his liberty interest by disseminating defamatory

information, which resulted in a stigma on LaForge that has

foreclosed his freedom to take advantage of other employment

opportunities. The defendants move for summary judgment on the

ground that LaForge was not deprived of a constitutionally

protected interest, and therefore was not entitled to procedural

19 or substantive due process.10

"To formulate a claim under the Due Process Clause of the

Fourteenth Amendment, a plaintiff must demonstrate that he or she

possesses a constitutionally protected interest in life, liberty

or property, and that state action has deprived him or her of

that interest." Metivier v. Town of Grafton,

(D. Mass. 2001). "Fourteenth Amendment ''liberties' include

'the right of the individual . . . to engage in any of the common

occupations of life.'" Temple v. Inhabitants of the City of

Belfast, 3 0 F. Supp. 2d 60, 66 (D. Me. 1998), quoting B d . of

Regents of State Colleges v. Roth,

(1972). Due

process is invoked when a government employer makes severely

defamatory charges that might seriously damage one's standing in

the community or impose a stigma that significantly interferes

with the ability to find employment. Roth.

.

Damage to one's reputation, alone, does not work a

deprivation of liberty protected by the Fourteenth Amendment.

See Paul v. Davis,

(1976) . For an injury to

reputation caused by a government official to rise to the level

of a constitutional liberty interest deprivation, it must be

10 The defendants also argue that LaForge does not have a protected property interest in his job with the HFD. LaForge does not claim a property interest.

20 coupled with a tangible change in the injured person's legal

status or rights. See Sieqert v. Gilley,

(1991); Paul,

; Silva v. Worden,

(1st Cir. 1997). The First Circuit applies this doctrine (the

"stigma-plus" test) to determine if a deprivation of a liberty

interest has occurred. See Hawkins v. R.I. Lottery Comm'n, 238

F .3d 112, 115 (1st Cir. 2001).

Termination from a tenured or statutorily guaranteed

position frequently constitutes a tangible alteration in legal

status. Beitzell v. Jeffrey,

(1st Cir. 1981);

Rodriquez de Quinonez v. Perez,

(1st Cir.

1979) (recognizing liberty interest where plaintiff was removed

from statutory bank director position on ground of dishonesty);

cf. Lyons v. Sullivan.

(1st Cir. 1979) (holding

that allegedly defamed plaintiff could not maintain § 1983 action

because he was not terminated from his tenured position, but had

resigned). In contrast, a person is not deprived of his liberty

interest if he "simply is not rehired in one job but remains as

free as before to seek another." Roth,

.

Here, LaForge was an at-will employee with no right to his

position, and his employment with the HFD ended by the terms of

his own resignation, not termination. Although the HFD did not

grant his request to rescind his resignation, a decision not to

21 rehire does not constitute a tangible alteration in legal status.

See Roth,

. To the extent LaForge contends his

liberty interest was affected by the CFD's decision to postpone

and ultimately withdraw its employment offer, he must show that

action was a tangible alteration in legal status.

In some circumstances, a tangible alteration in legal status

can occur where a government employer's "false and defamatory

charges" are so serious they impose a stigma on the plaintiff

such that he is foreclosed from subsequent employment. See

Beitzell,

; Orteqa-Rosario v. Avarado-Qrtiz,

(1st Cir. 1990); Cronin v. Town of Amesbury,

(D. Mass. 1995). The stigma imposed by the

government employer's defamatory remarks must be serious, a

"badge of infamy" that would damage the employee's standing and

associations in his community. See Roth,

n.12

(collecting cases of liberty interest deprivation that involved

stigmatizing charges of "subversive activities"); Valmonte v.

Bane,

(2d Cir. 1994) (holding that listing plaintiff

teacher on New York State register of child abuse was sufficient

stigma). Discussions about a plaintiff's credentials and

adequacy of job performance, however, "threaten no special

injury." Beitzell,

(stating that university

advisory board's recommendation against retaining plaintiff did

22 not injure plaintiff's reputation sufficiently to establish

deprivation of liberty interest); see also Sieqert,

(finding no deprivation of liberty interest where plaintiff

had resigned and former employer provided unfavorable information

to prospective employer in recommendation letter).

An employee's ability to secure subsequent employment is a

touchstone for the level of stigmatization incurred. See Orteqa-

Rosario ,

(noting that because plaintiff was

able to obtain two other jobs, allegedly defamatory statements

contained in his personnel file did not impair his freedom to

seek employment); Temple, 30 F. Supp. 2d at 66. Another

indicator of stigma is whether the defamatory information was

disseminated to the public in a formal setting, such as at a

public meeting or to the press. See Silva,

;

Beitzell,

(noting that charges made publicly are

more likely to interfere with employment opportunities).

LaForge argues that he was stigmatized by Chief Howard's

remarks that LaForge had improperly breached patient

confidentiality and broken the chain of command. LaForge claims

that as a result of Chief Howard's allegedly defamatory

statements and his complaint to the EMS Bureau, he was

stigmatized so that his ability to secure future employment was

impaired. The record demonstrates, however, that LaForge

23 prevailed over Chief Howard's complaint to the EMS Bureau and

retained his paramedic certification. He began employment with

Tri-Town as a paramedic the day he left the HFD; he secured a

full-time paramedic position with the Goffstown Fire Department a

few months later; and he continues to hold that position.

LaForge has successfully obtained employment in his field since

his departure from the HFD despite Chief Howard's complaint to

the EMS Bureau and his remarks to the CFD.

It is apparent from the record that the information

disseminated by Chief Howard to the CFD was a factor in the CFD's

decision to withdraw its offer, but remarks made in the context

of discussing a candidate for a job do not constitute the "badge

of infamy" required to invoke a liberty interest. See Beitzell,

. Furthermore, there is nothing in the record

indicating that any allegedly defamatory information about

LaForge was disseminated to the public in a formal setting. In

sum, the record does not show that LaForge was foreclosed from

further employment as a firefighter/paramedic due to Chief

Howard's statements or actions. The comments made by Chief

Howard to the CFD when discussing LaForge's impending employment

do not rise to the stigmatizing level necessary to establish the

deprivation of a liberty interest.

LaForge has not shown a dispute of fact as to whether his

24 legal status or rights were altered due to Chief Howard's

allegedly defamatory remarks. Therefore, he has not met the

"stigma-plus" test required to show the deprivation of a liberty

interest. LaForge does not assert that he was deprived of any

other type of constitutionally protected interest. Summary

judgment is granted in favor of the defendants on LaForge's

Fourteenth Amendment procedural and substantive due process

claims.

C. Municipal Liability

_____ Hooksett moves for summary judgment on the ground that it is

not liable for the acts of Chief Howard and Town Administrator

Farrell, because LaForge has not shown that their actions

constitute a municipal policy, practice, or custom sufficient to

establish liability under § 1983. "Municipalities are liable for

constitutional violations resulting from their official policies

and customs." Figueroa-Serrano v. Ramos-Alverio,

(1st Cir. 2000), citing Monell,

. "Normally,

therefore, a municipality cannot be held liable unless its agent

actually violated the victim's constitutional rights." Hayden v.

Gravson,

(1st Cir. 1998).

For the reasons discussed above, LaForge has not shown that

Chief Howard's actions deprived him of either his First or

25 Fourteenth Amendment rights. Hooksett might still be liable if

Farrell's actions constituted a municipal policy or custom that

deprived LaForge of his federal rights. According to the record,

Farrell's involvement in the events that led to LaForge's claims

is limited to his decision not to rescind LaForge's resignation.

The decision not to rescind LaForge's resignation did not

constitute an adverse employment action for the purpose of

LaForge's First Amendment claim. Since the record shows no

action by Farrell that would constitute deprivation of LaForge's

liberty interest, no Fourteenth Amendment violation occurred.

Because no trialworthy issue remains as to Hooksett's liability,

summary judgment is granted in favor of Hooksett as to LaForge's

§ 1983 claims.

II. State Claims

In the absence of LaForge's federal claims, the court

declines to exercise supplemental jurisdiction over his remaining

state claims. The state claims are dismissed, without prejudice,

for lack of subject matter jurisdiction.

26 Conclusion

The defendants' motion for summary judgment (document no.

12) is granted as to the plaintiff's federal claims in Counts I

and II. The plaintiff's state claims are dismissed without

prejudice. The clerk shall enter judgment accordingly and close

the case.

SO ORDERED.

Joseph A. DiClerico, Jr. United States District Judge

April 30, 2002

cc: V. Richards Ward Jr., Esquire Lawrence S. Smith, Esquire

27