Fritz v. Daly et a l . CV-06-191-PB 10/31/06

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Randal C. Fritz

v. Case No. 06-cv-191-PB Opinion No.

Katharine A. Daly, Kenneth C. Brown, Roxanne Juliano, Suzanne M. Gorman, Karen A. Levchuk, Deborah R. Revnolds, Marta E . Rodricruez, Laura D. Simoes, Griffin T. Dalianis, Gavle Trov, e t . a l .

MEMORANDUM AND ORDER

Randal Fritz, an investigator working for the New Hampshire

Commission for Human Rights, brings this suit pursuant to

, alleging that the Commission's Executive Director

and numerous other state officials and employees violated his

First Amendment rights by retaliating against him for making

certain statements to his administrative superiors and a

complainant's attorney. Defendants move to dismiss, arguing that

Fritz's statements are not protected by the First Amendment

because he made the statements pursuant to his official duties.

Alternatively, defendants argue that they are entitled to qualified immunity. For the reasons set forth below, I grant

defendants' motion.

I. BACKGROUND1

This case arises from a letter Fritz wrote in his capacity

as a Commission investigator. In addition to the Commission's

Executive Director, Katharine Daly, Fritz has sued:

Commissioners Kenneth C. Brown, Deborah R. Reynolds, Marta E.

Rodriquez, Laura D. Simoes, Griffin T. Dalianis, and Gayle Troy;

Commission Assistant Director Roxanne Juliano; Senior Assistant

Attorney General Suzanne Gorman; Director of Personnel Karen A.

Levchuk; and other unnamed defendants.

On October 4, 2005, while investigating a hostile work

environment claim in the matter of Jibril Salaam v. University of

New Hampshire. Fritz mailed a letter to Salaam's attorney.

1 Because this is a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), I take the facts as they are alleged in the plaintiff's complaint. See Rodi v. S. New Eng. Sch. of Law.

(1st Cir. 2004). I also consider the 14 Exhibits attached to the complaint without converting the motion to dismiss to one for summary judgment. See Stein v. Royal Bankof Canada.

(1st Cir. 2001).

- 2 - Heather Burns, entitled "Confidential and for Settlement Purposes

Only." Exhibit 2. In the letter, Fritz outlined the legal

standard for proving a hostile work environment claim, and

bluntly assessed what he saw as the lack of merit in Salaam's

claim. Specifically, Fritz wrote:

I have reviewed the extensive submissions of information and am mystified to determine what exactly triggers [Salaam's claim]. . . . The facts are more appropriately categorized as [t]he maturation of diversity in style, differences of opinion on policy, procedure and "sense of mission", and Claimant's self- interest to push the envelope in demanding UNH unilaterally yield to his master's degree internship schedule, into conflict among many administrative/ bureaucratic actors. Add to these turf wars and other stock office politics as the backdrop of Admissions Office's multicultural subdivision and the employer's obvious disappointment, frustration, and even level of distrust after discovering the incongruity in Claimant's resume with his lack of undergraduate degree completion.

Under separate cover you will receive a request for information from the Commission which may assist my present inability to catch a glimpse of a 354-A/Title VII action. If the answers to the requests are more of the same, I might invite Claimant to . . . [pursue other avenues] or look into a non-litigation dispute resolution forum.

I d . (emphasis in original).

- 3 - On October 5, 2005, Director Daly received a phone call from

Attorney Burns expressing her concern with Fritz's letter.

Complaint at 37-40. Burns claimed that Fritz had improperly

weakened her bargaining position with her adversary by writing

the letter without first interviewing Salaam or reviewing

dispositive evidence she claimed was in the case file. Daly

discussed the matter with Fritz, who defended himself, stating

that the record in the case supported his opinions and actions.

On October 7, 2005, Fritz sent Daly a five-page written

memorandum entitled "Silencing the Messenger," in which he

accused Attorney Burns, her law firm, Upton & Hatfield, and "a

small group of plaintiff attorneys" of attempting to "silence"

him in his role as Commission investigator. Complaint at 5 41,

Exhibit 3. He wrote: "they are using these complaints to you in

your role as Director as a scheme to manipulate the Commission

into pressuring me into never, through any means of

communication, indicating any factual or legal deficiency in

their client's cases." Exhibit 3 (emphasis in original). He

characterized the matter as "an up-the-ladder-behind-my-back

assault on me in my official capacity," warned of the dangers of

- 4- a compromised investigation system, and lamented the threat to

his "professional reputation and relationship with the Commission

and its Director."

Fritz also rebuked Daly for criticizing

his job performance.

Specifically, he stated:

[W]hen you state that "I made a mistake" you do so without basis and embed your own feelings, personality, and methodologies into an arena where they do not belong - my negotiation. This is my canvas. Artists should not pick up a brush and start painting on someone else's canvas or tell them the tree is in the wrong place.

Here is what I need you to do in this matter and in the future: review the process, if I have not stepped outside my legal authority or ethical strictures then you will call the complaining attorney back and simply tell them that after review you advise them to obtain a box of tissues and [] send over a violinist. . . . If you permit these types of complaints to undermine my authority, discretion, and denigrate me professionally, it is like dealing with spoiled children, it will only get worse.

I d . (emphasis in original). The letter goes on in this manner

for five pages, and concludes with Fritz's concern that the

"silencing" will spread to other investigators and the

Commission's efforts will be irreparably harmed.

On October 10, 2005, Fritz sent Daly an e-mail in which he

requested further discussion of the Salaam case and suggested

- 5 - Daly inform Burns' opposing attorney of the ex parte phone

conversation between Daly and Burns. Complaint at 5 42, Exhibit

4. On October 11 and 14, 2005, Fritz again spoke to Daly about

the Salaam case, discussing the October 4th letter, the

Commission's custom and practice of writing such settlement

letters, the ex parte communication between Daly and Burns, and a

prior investigator's notes on the case. Complaint at 11-50.

On November 3, 2005, Daly sent Fritz a note asking him to

write a letter to Salaam's attorneys indicating that he had

written the October 4th letter without having interviewed the

claimant or his purported witnesses. Complaint at 51-56,

Exhibit 5. Daly offered to write the letter if Fritz would not.

Exhibit 5. On November 4, 2005, Fritz e-mailed Daly to inform

her that he would not write the letter. Complaint at 5 60,

Exhibit 6.

On November 7, 2005, Daly sent a letter to Burns. She

apologized for Fritz's summary treatment of Salaam's claim, and

affirmed Burns' belief that a Commission investigator should

remain neutral, avoid sarcasm and extreme opinions about one

party's case, and request information from a claimant as part of

- 6 - his investigation. Complaint at 62-66, Exhibit 7. She said:

The role of the investigator according to our rules (Hum 203.03) is to discover facts and make reports and recommendations to the investigating commissioners, and to assist the parties in settlement negotiations. Hum 203.03(a) requires that the investigator shall maintain a neutral position with regard to the parties at all times.

Exhibit 7 (emphasis in Daly's letter). Daly said that Fritz's

October 4th opinion letter was out of step with the Commission's

established investigative process, and that she had counseled him

how to avoid similar situations in the future.

On November 18, 2005, Fritz sent Daly a letter notifying her

that he was recusing himself from Commission matters involving

the law firm of Upton & Hatfield because of conflicts in the

Salaam case and another Upton & Hatfield case. Complaint at 5

70, Exhibit 8. He also said that the communications and actions

taken against him in the office "activate various legal concerns

that will have to be addressed . . . ."

Daly responded on November 21, 2005, writing, "I have no

idea what [Fritz's intent to "activate" various legal concerns]

means. But I strongly caution you against taking any action on

your own at this point." Complaint at 5 71, Exhibit 9 (emphasis

- 7 - in original). She also tried to set-up a meeting to talk. Fritz

responded the same day asking what Daly meant in "cautioning"

him, inquiring as to the purpose of a meeting, and questioning

her attitude and behavior during her public interruption of his

speech at an unrelated conference. Exhibit 10. He wrote again

on November 23, 2005 to the same effect. Exhibit 11.

On November 30, 2005, Daly sent Fritz an e-mail entitled

"Pre-disciplinary Meeting Notice," which stated that "the

evidence for the discipline is present in your letter of October

4, 2005 to Attorney Heather Burns and all your subsequent

communications to me and your actions since then . . . ."

Complaint at 5 34, Exhibit 1.

During the pre-disciplinary meeting on December 6, 2006,

Fritz read an eight-page statement, in which he alleged, among

other things, that Daly was retaliating against him because he

had opposed Daly's favoritism toward her former employer, Upton &

Hatfield. Exhibit 12. Fritz recounted the facts largely as

described above, focusing more on Daly's actions and less on his

own statements to her.

In particular, he listed more than a

dozen reasons why Daly's November 7th letter was intentionally misleading, constituted "vicious derogatory" retaliation against

him, and "clearly reveals that the Director serves as the

Guardian Angel over her former employer's cases."2

He

concluded by recommending that the Commission take steps to

"clean up this mess," including commencing an internal

investigation into violations of the Commission's ethics

policies.

On December 15, 2005, Daly and Commissioner Brown notified

Fritz in writing that he was suspended for three days without pay

and that all his correspondence for six weeks would be subject to

review and mandatory prior approval. Complaint at 5 87. On

February 27, 2006, Brown notified Fritz that because he had

failed to submit any correspondence for review since December 15

(with the exception of one report), the mandatory correspondence

review and approval period would be extended an additional six

weeks. Exhibit 14.

Fritz initiated this lawsuit on March 26, 2006, alleging

that Commission officials had deprived him of his First Amendment

rights by retaliating against him for engaging in protected

2 Daly had previously worked for the firm of Upton & Hatfield. speech. He complains that the following actions constitute such

retaliation: (1) Daly's November 7th letter to Burns; (2) Daly's

November 21st e-mail cautioning him to cease action; (3) the

November 30th pre-disciplinary notice; (4) the December 6th pre-

disciplinary hearing; (5) the December 15th suspension and

supervision; and (6) the February 27th extension of supervision.

II. STANDARD OF REVIEW

"A district court may grant a 12(b)(6) motion to dismiss for

failure to state a claim upon which relief can be granted only if

it clearly appears, according to the facts alleged, that the

plaintiff cannot recover on any viable theory." Nathan P. v. W.

Springfield Pub. Sch..

(1st Cir. 2004)

(citation omitted). My "task is not to decide whether the

plaintiff ultimately will prevail but, rather, whether he is

entitled to undertake discovery in furtherance of the pleaded

claim." Rodi,

. In considering a motion to

dismiss, I "accept as true the well-pleaded factual allegations

of the complaint, draw all reasonable inferences therefrom in the

plaintiff's favor and determine whether the complaint, so read.

- 10 - sets forth facts sufficient to justify recovery on any cognizable

theory." Martin v. Applied Cellular Tech..

(1st

C i r . 2002 ) .

Il l . ANALYSIS

Fritz contends that the defendants violated his First

Amendment rights by retaliating against him after he wrote the

October 4th letter and resisted what he contends was improper

interference by Daly with the performance of his duties.

Defendants argue that Fritz's speech is not protected by the

First Amendment because he made the statements on which his claim

is based pursuant to his official duties. Alternatively,

defendants argue that they are entitled to qualified immunity.

In cases where a plaintiff's First Amendment rights collide

with the companion legal doctrine of qualified immunity, I begin

with the question of whether the facts as alleged make out a

violation of the First Amendment. See Dirrane v. Brookline

Police Dep't,

(1st Cir. 2002) (citing Saucier v.

Katz,

, 201 (2001) . If I determine that no such

violation occurred, I need not continue the qualified immunity

- 11 - analysis because plaintiff's claim fails as a matter of law and

will be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). See id.

at 69-70. If, however, plaintiff's complaint makes out a

constitutional violation, I must determine whether the

constitutional right at issue was clearly established at the time

of the putative violation. Saucier, 533 U.S. at 202; Pagan v.

Calderon.

(1st Cir. 2006).

A. Are Fritz's Statements Protected Speech?

To prevail on a First Amendment claim, a public employee

must show that he engaged in protected speech. See Garcetti v.

Ceballos,

(2006). If the plaintiff

satisfies this first element of his retaliation claim, he must

additionally show that (1) the First Amendment interests of the

plaintiff and the public outweigh the government's interest in

functioning efficiently; and (2) that his protected speech was a

substantial or motivating factor in the adverse action against

him. Jordan v. Carter.

(1st Cir. 2005). A

public employee engages in protected speech when he speaks "as a

citizen on a matter of public concern." Garcetti.

(2006). "[W]hen public employees make statements pursuant

- 12 - to their official duties, the employees are not speaking as

citizens for First Amendment purposes, and the Constitution does

not insulate their communications from employer discipline."

at 1960 .

The inquiry to determine whether an employee is acting

pursuant to his official duties "is a practical one." I d . at

1961. Rather than parsing an employee's job description, I must

examine the "content, form, and context" of the speech to

determine whether the employee was acting primarily as a

concerned citizen or as an employee. See Bailey v. Dep't of

Elementary & Secondary Ed u c .,

(8th Cir. 2006);

Jordan.

.

It is beyond dispute that Fritz's October 4th letter does

not qualify as protected speech because he was acting pursuant to

his official duties rather than as a private citizen when he

wrote the letter. As for his remaining communications, the

context in which they occurred dooms his case. Here, the

statements at issue all relate to Fritz's effort to defend his

job performance against what he perceived was unjust criticism by

his employer. After Daly told him that he had made a mistake in

- 13 - writing the October 4th letter, he engaged in a series of

communications with her in which he defended his actions and

charged her with improper interference. He continued these

efforts at a disciplinary hearing, where he told his

administrative superiors why he should not be disciplined and

claimed that it was Daly who was acting improperly. Such

communications are quintessentially a part of an employee's

official duties.

If Fritz's contrary conception of the law were true, a

public employee acting illegally or unethically could avoid the

specter of discipline by simply responding to his employer's job-

related inquiries with denials and counter accusations of

corruption. The employee would then be free to claim, as Fritz

does here, that any effort to hold him to account for his

misconduct is a violation of his First Amendment rights. Such a

result is simply untenable. Public "employees retain the

prospect of constitutional protection for their contributions to

the civic discourse. This prospect, however, does not invest

them with a right to perform their jobs however they see fit."

Garcetti. 126 S. C t . at 1960.

- 14 - Because Fritz made his statements pursuant to his official

duties, they do not qualify as protected speech. Thus, Fritz

fails to state a viable First Amendment claim.

B. Are Defendants Entitled to Qualified Immunity?

Though I conclude that no First Amendment violation

occurred, I need not rest my dismissal on that determination.

Assuming arguendo that Fritz makes out a colorable claim that his

statements qualify as protected speech, defendants nevertheless

are entitled to qualified immunity because the particular right

for which Fritz claims protection was not clearly established at

the time of the challenged conduct. See Dirrane,

.

A public employee's right to claim First Amendment protection for

protected speech turns on the so-called '•'Pickering balancing

test," which weighs the First Amendment interests of the

plaintiff and the public against the government's interest in

functioning efficiently. See Jordan.

(applying

Pickering v. Bd. of Educ..

(1968)). "Because

Pickering's constitutional rule turns upon a fact-intensive

balancing test, it can rarely be considered clearly established

for purposes of qualified immunity." Fabiano v. Hopkins. 352

- 15 - F.3d 447, 457 (1st Cir. 2003) (internal quotations omitted).

Here, the Executive Director and presiding commissioners of

a public agency disciplined Fritz for the violation of Commission

regulations. Fritz plainly violated these regulations when he

wrote the October 4th letter.3 Thus, Daly was entitled to take

corrective action against him both for writing the letter and for

refusing her reasonable requests for corrective action. While

Fritz's counter charges that Daly had engaged in improper ex

parte communications and favored litigants represented by her

former law firm appear to address matters of public concern that

might have qualified as protected speech prior to Garcetti.4

Fritz's charges "were nestled in a morass" of plainly unprotected

statements aimed at avoiding discipline for his improper job

performance. See Dirrane,

. Under these

3 Fritz alleges that the Commission, in practice, acquiesced in similar practices by other investigators. Complaint at 547. Even if this were true, however, it does not change the fact that Fritz's conduct violated the plain language of Hum 2 03.03.

4 Prior to Garcetti. neither the Supreme Court nor the First Circuit had clearly held that an employee lacks First Amendment protection for statements that he makes pursuant to his official duties.

- 16 - circumstances, and given the relatively modest discipline that

was imposed, it simply cannot be said that a similarly situated

employer would have understood that her actions were unlawful

under the Pickering balancing test. See Saucier, 533 U.S. at

202 .

Although I rule against Fritz today, I do not suggest that a

public employee who has knowledge of government misconduct must

remain silent. There exists a "powerful network of legislative

enactments - such as whistle-blower protection laws and labor

codes - available to those who seek to expose wrongdoing."

Garcetti.

. See

(b)(8) (2004);

-E:2 (1988). In addition, the First

Amendment continues to protect public employees who speak out on

matters of public concern as citizens rather than pursuant to

their official duties. In this order, I merely hold that

defendants are entitled to qualified immunity from Fritz's damage

claim because his statements do not qualify as protected speech

and, alternatively, because a reasonable employer would not have

understood that the discipline that was imposed was unlawful.

- 17 - IV. CONCLUSION

For the reasons stated above, I grant defendants' motion to

dismiss (Doc. No. 23).

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge October 31 , 2006

cc: Paula J. Werme, Esq. Pierre Rumpf, Esq. Nancy J. Smith,Esq. Debra Weiss Ford, Esq. Russell F. Hilliard, Esq.

- 18 -