Fritz v. Brown and Daly CV-0 6-4 69-PB 08/29/07

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Randal C. Fritz

v. Case No. 06-cv-469-PB Opinion No.

Kenneth Brown and Katharine Daly

MEMORANDUM AND ORDER

Randal Fritz, a former investigator for the New Hampshire

Commission for Human Rights, brings this suit pursuant to

, alleging that the Commission's Chairman and

Executive Director violated his First Amendment rights by

retaliating against him after he engaged in speech and acts

protected by the First Amendment. Defendants now move to dismiss

the instant suit, arguing both that his claims fail to state

viable causes of action, and that they are entitled to qualified

immunity. For the reasons set forth below, I grant defendants'

motion in part and deny it in part. I. BACKGROUND

This is Fritz's second lawsuit asserting First Amendment

retaliation claims against the Commission's Chairman and

Executive Director. I dismissed the first action ("Fritz I")

because I determined that the statements on which his claims were

based were not protected by the First Amendment. Fritz v. Dalev,

. I first provide some background information on

Fritz I, and then describe Fritz's current claims.

A. Fritz I

Fritz's initial suit arose from a letter he wrote on October

4, 2005, while investigating a hostile work environment claim in

his capacity as a Commission investigator. Fritz mailed the

letter, entitled "Confidential and for Settlement Purposes Only,"

to Attorney Heather Burns, who represented the claimant. Fritz I

Compl., Exhibit 2. In the letter, Fritz outlined the legal

standard for proving a hostile work environment claim, and

bluntly assessed in harsh language what he saw as the lack of

merit in the claim. In doing so, Fritz violated the plain

language of Hum 206.03 by failing to maintain a neutral position

with regard to parties before the Commission at all times. See

- 2 - Hum 206.03(b). Upon receipt of this letter. Burns complained to

Daly, who then discussed the matter with Fritz and informed him

that he had made a mistake in writing the letter. Fritz defended

himself, stating that the record in the case supported his

opinions and actions.

Things deteriorated from here as Fritz engaged in a series

of communications with Daly and other superiors in which he

continued to defend his actions, refused to take corrective

action, and charged Daly with improper interference with his job

performance, favoritism toward Burns (who worked for Daly's

former law firm), and corruption. Fritz persisted with these

efforts at his disciplinary hearing, where he told his

administrative superiors why he should not be disciplined and

claimed that it was Daly who was acting improperly.

Fritz argued in his first lawsuit that the October 4th

letter, his attempts to defend himself, and his counter

accusations of corruption were all statements and acts protected

by the First Amendment. I concluded in that case that the

writing of the letter and the back-and-forth communications that

followed were not protected by the First Amendment under Garcetti

v. Ceballos,

(2006) because Fritz made the

- 3 - communications at issue pursuant to his official duties and not

as a citizen on matters of public concern. Fritz I,

.

B. The Current Action

Fritz makes similar allegations in the instant suit,

claiming that Daly and Brown retaliated against him in violation

of the First Amendment. He contends that the defendants

committed a series of retaliatory acts against him after he

engaged in protected acts and statements. Fritz alleges that

these retaliatory acts began immediately after he filed the

previous lawsuit on May 22, 2006 and culminated in his

termination on December 1, 2006.

1. Private Investigator

According to Fritz's complaint, on June 6, 2006, defendants

sent a private investigator to threaten, intimidate, and deter

his Attorney, Pierre Rumpf, from representing him in Fritz I .

Compl. at 21-33. The complaint states that the investigator

did this by going to Rumpf's law office, asking him questions

about Fritz, and asking other area attorneys about Rumpf and

Fritz.

- 4 - 2. Co-Worker Relationships

Fritz also alleges that defendants poisoned his

relationships with co-workers in response to his filing of Fritz

X- I d . at 34-43. Specifically, he states that defendants

schemed with one of Fritz's co-workers to manufacture phony and

frivolous harassment allegations against him in August 2006.

According to the complaint, a co-worker sent Fritz an e-mail,

copied to the commission's assistant director, in which she

threatened to complain to defendants if Fritz sent her another e-

mail with "attitude." I d . at 5 36. The complaint alleges that

the co-worker's e-mail "was a charade as it was prepared with

assistance from defendant Brown and/or defendant Daly." I d . at 5

38. Additionally, Fritz's complaint states that he was friendly

with the co-worker before he filed his initial lawsuit and that

the co-worker had received her annual review shortly after

sending the threatening e-mail. I d . at 40-43.

3. Denied Access To Non-Public Commission Meeting

Next, Fritz alleges that the defendants retaliated against

him for asserting his right to be present at a non-public session

of a Commission meeting. Compl. at 44-53. On November 2,

2006, Fritz attended a regularly scheduled Commission meeting.

- 5 - I d . at 5 44. The agenda for the meeting included a non-public

session regarding discipline of an employee.

Believing that

session to be about him, Fritz sought to attend the meeting and

have it opened up to the public pursuant to the state's open

meeting law,

-A:3. Despite his attempts

to explain why he believed he could open the meeting, defendants

denied him access to the meeting, called the police to remove him

from the premises, and conducted the meeting as a private

session. I d . at 47-53.

4. Whistle-Blower Complaint. Notice of Contemplation of Dismissal, and Notice of Dismissal

At 8:46 a.m. on November 13, 2006, Fritz mailed a state

whistle-blower complaint to the New Hampshire Department of

Labor, the substance of which was similar to his initial First

Amendment lawsuit. Compl. at 5 54. A few hours later, "around

midday on November 13," Fritz signed a receipt for a Notice of

Contemplation of Dismissal, dated November 10, 2006, which the

defendants had sent by certified mail. Pl.'s Objection

Memorandum at 10; Def.'s Motion to Dismiss, Exhibit A.

The Notice states that "the Commission is considering

dismissing you from employment pursuant to Per 1002.08(b)(16),

- 6 - willful release of confidential information in violation of

Commission Law, rules, and policy, and Per 1002.08(b)(13),

persistent refusal to follow the legitimate directives of a

superior." Def.'s Motion to Dismiss, Exhibit A. The Notice

provides a list of sixteen documents, each attached to the

Notice, which the Commission describes as "information which we

believe would support a decision to dismiss you from employment."

Included in this list is the complaint in Fritz I and its

associated attachments, and the " [p]hotograph on your office wall

. . . showing your display of a framed order from the U.S.

District Court for the District of N.H., denying defendants'

Motion to Seal the record in the matter of Fritz v. Daly e t . a l ."

Defendants terminated Fritz following a November 28, 2006

disciplinary meeting at which Fritz presented written rebuttal

but declined any discussion. The Commission's December 1, 2006

Notice of Termination reiterates and incorporates the November

10, 2006 Notice of Contemplation of Dismissal and associated

attachments. Def.'s Motion to Dismiss, Exhibit B.

- 7 - 5. Summary

Fritz alleges that defendants violated his First Amendment

rights by retaliating against him for: (1) filing the prior

lawsuit and opposing motions to seal and redact portions of

pleadings in the prior lawsuit, (2) displaying on his office wall

a copy of this court's Order denying the motions to seal, (3)

asserting a state statutory right to be present at a non-public

Commission meeting, and (4) filing a whistle-blower complaint

with the New Hampshire Department of Labor.

Fritz alleges that the defendants retaliated against him in

response to these allegedly protected acts, by (1) sending a

private investigator to intimidate him and thwart his attempt to

obtain legal representation in Fritz I, (2) scheming with one of

Fritz's co-workers to manufacture phony and frivolous harassment

allegations against him, (3) refusing Fritz access to a non­

public session of a Commission meeting, and (4) terminating his

employment.

II. STANDARD OF REVIEW

When ruling on a motion to dismiss under Fed. R. Civ. P.

12(b)(6), I must "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, sets forth facts sufficient to justify

recovery on any cognizable theory." Martin v. Applied Cellular

Tech., Inc.,

(1st Cir. 2002). The issue is not

"what the plaintiff is required ultimately to prove in order to

prevail on her claim, but rather what she is required to plead in

order to be permitted to develop her case for eventual

adjudication on the merits." Gorski v. N.H. Dep't of Corrs.,

(1st Cir. 2002) (emphasis in original).

I must consider the complaint, documents annexed to it, and

other materials fairly incorporated within it when ruling on the

motion. Rodi v. S. New Eng. Sch. of Law.

(1st

Cir. 2004). Additionally, I may consider matters that are

susceptible to judicial notice.

This includes matters of

public record such as documents from prior court proceedings,

Boaten v. InterAmerican Univ.. Inc..

(1st Cir.

2000), and the "entirety of a document integral to or explicitly

relied upon in the complaint, even though not attached to the

complaint." Clorox Co. P.R. v. Proctor & Gamble Commercial Co..

(1st Cir. 2000). I may consider such extra

- 9 - pleading materials without converting a motion to dismiss to one

for summary judgment.

Ill. ANALYSIS

Defendants challenge Fritz's First Amendment claims by

arguing that the acts and statements on which the claims are

based are not protected by the First Amendment. Alternatively,

they argue that they are entitled to qualified immunity.

To survive a motion to dismiss a First Amendment retaliation

claim, a public employee must allege that he faced retaliation

for speaking as a citizen on a matter of public concern.

Garcetti.

. After satisfying this

requirement, he must also allege 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) (describing the so-called "Pickering balancing

test," derived, respectively, from the Supreme Court's decisions

in Connick v. Myers.

(1983); M t . Healthy City Sch.

Dist. Bd. of Ed u c . v. Dovle,

(1977); and Pickering

- 10 - v . B d . of Ed u c .,

(1968)).

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

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 i d .

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

constitutional violation, I must then determine whether

a similarly situated reasonable official would have known at the

time that he had violated a clearly established right. Saucier,

533 U.S. at 202; Pagan v. Calderon.

(1st Cir.

2006). If the answer is yes, then the defendants are not

entitled to qualified immunity.

A. Are Fritz's Statements And Acts Protected?

Defendants argue that Fritz cannot satisfy the first element

of his claim because he does not have a First Amendment right to

protection from retaliation either for filing the complaint in

- 11 - Fritz I or for opposing defendants' motion to seal in that

action.1 This argument appears to be based on the mistaken

premise that the First Amendment does not protect a government

employee from retaliation for the act of filing a lawsuit unless

the lawsuit asserts viable First Amendment claims.2

In addition to protecting speech, the First Amendment

guarantees every citizen the right "to petition the Government

for redress of grievances." U.S. Const, amend. I. The right to

access the courts is an established aspect of the right to

petition the government. Bill Johnson's Rest.. Inc. v. NLRB,

(1983); Fabiano v. Hopkins.

(1st

Cir. 2003), and "[a]n individual does not lose this right because

she is employed by the government." Boyle v. Burke.

(1st Cir. 1991) (citing Connick,

).

A public employee's right to petition the government, however, is

1 Fritz has pleaded sufficient facts to support the remaining elements of his First Amendment claim. Whether the evidence will ultimately support his allegations remains to be seen.

2 As support for this proposition, defendants cite Ruotolo v. Citv of New York. No. 03 Civ. 5045 (SHS),

, * at 5 (S.D.N.Y. July 19, 2006). To the extent that my reasoning and conclusions are inconsistent with Ruotolo. I simply find it unpersuasive.

- 12 - subject to the same constitutional analysis as his right to free

speech. Wavte v. United States.

, 610 n.ll (1985).

Thus, after Garcetti. an employee's decision to file a lawsuit is

protected by the First Amendment only if he was acting as a

citizen when he filed the lawsuit and the lawsuit addressed a

matter of public concern. D'Anqelo v. Sch. Bd. of Polk County.

Fla., ___ F .3d ___ ,

*at 7-8 (11th Cir. 2007). If

both requirements are satisfied, the act of filing a lawsuit is

protected by the First Amendment even if the lawsuit is later

dismissed and regardless of whether the employee was acting as a

citizen when he engaged in the conduct on which the lawsuit was

based.

I determined in Fritz I that Fritz did not engage in

protected speech because he was speaking as an employee rather

than as a citizen when he engaged in the speech for which he was

seeking First Amendment protection. Here, the situation is quite

different. Fritz did not file his lawsuit as part of his job.

Moreover, although Fritz sought to vindicate his employment

rights by filing the lawsuit, he was not acting pursuant to his

official duties, nor was he exploiting his employment position in

doing so. Rather, Fritz asserted his protected constitutional

- 13 - right as a citizen to petition the government for redress of a

grievance.

Furthermore, although Fritz's grievance addressed a

combination of both public and private matters, it plainly

included substantial allegations of favoritism, improper ex parte

communications, unconstitutional discipline, and corruption among

his superiors at the Human Rights Commission. These allegations

were not strictly limited to a personal dispute. Rather, they

"directly implicated a topic of inherent concern to the community

-- official misconduct by . . . [a public] official. O'Connor v.

Steeves.

(1st Cir. 1993). Accordingly, Fritz's

current lawsuit pleads sufficient facts to support his assertion

that he was acting as a citizen on a matter of public concern

when he filed Fritz 1 .3

2. Displaying Court Order On Government Office Wall

Defendants next argue that Fritz's act of displaying on his

government office wall a court order denying a motion to seal is

3 In light of my conclusion that the filing of the first lawsuit was a protected act because Fritz filed it as a citizen on matters of public concern, I also conclude that his objections to motions to seal in that case are protected acts because they were merely actions taken pursuant to the underlying action.

- 14 - not a protected act, but rather "an act of childish defiance

intended purely to escalate plaintiff's personal dispute with his

supervisors." Def.'s Memorandum at 8. Fritz contends that it

was a protected speech act because "members of the public were

able to see and observe the document." Pl.'s Objection

Memorandum at 11. I disagree.

It is apparent from the complaint that Fritz was speaking as

an employee rather than a citizen when he posted the court order.

At the time, Fritz was engaged in a struggle with his employers

over the nature of his job responsibilities. The posting of the

court order was yet another act that Fritz undertook to support

his view that his employers were improperly attempting to prevent

him from doing his job. Thus, it was a communication that Fritz

undertook as an employee rather than a citizen and it is not

entitled to First Amendment protection.

Fritz's contention that members of the public could see the

posted order does nothing to save him. Unlike speech made as a

citizen, such as posting a statement on the exterior of one's

home, printing a letter to the editor in a newspaper criticizing

government action, or filing a lawsuit alleging corruption in

government office, here, Fritz was merely interacting with his

- 15 - superiors and coworkers within the confines of his office.

3. Access To Non-Public Commission Meeting

Fritz also claims First Amendment protection for asserting a

state statutory right to be present at a non-public commission

meeting. He cites no legal authority, however, to support his

contention that a government employee has a First Amendment right

to gain access to a nonpublic session of an agency meeting.

Although

-A:3 contemplates certain

instances in which a public employee may cause a disciplinary

meeting to be open to the public, that right is protected by the

state law which creates it, i d . at § 91-A:7, and not the First

Amendment. If Fritz felt that he had a right to be present

during the nonpublic session under state law, he should have

sought redress in state court as provided in

-A:7.

4. Filing A Whistle-Blower Complaint

Even if I assume that filing a state whistle-blower claim

with the New Hampshire Department of Labor is an act protected by

the First Amendment, Fritz has failed to state facts sufficient

to support a reasonable inference that defendants based their

decision to discipline him on the filing of the whistle-blower

- 16 - claim. The relevant facts that bear on this issue are as

follows: Fritz mailed his whistle-blower complaint to the

Department of Labor from the Concord Post Office on November 13,

2006, with a postmark time of 8:46 a.m. Pl.'s Objection

Memorandum at 10. A few hours later, "around midday on November

13," Fritz received the Notice, dated November 10, 2006, which

the defendants had sent by certified mail.

Fritz does not

assert that he gave defendants adequate notice of his intention

to file a whistle-blower complaint. Fritz thus contends that in

the few hours that passed between the 8:46 a.m. mailing of his

whistle-blower complaint and his "midday" receipt of the Notice,

the defendants (1) learned that he had filed the complaint, (2)

prepared the Notice, and (3) mailed the Notice in a manner

sufficient to (4) permit certified delivery within a matter of

hours. Even construing these facts in the light most favorable

to Fritz, I simply cannot conclude that this is a reasonable

inference.

B. Are Defendants Entitled to Qualified Immunity?

Having concluding that Fritz has properly pleaded a

violation of his First Amendment right to petition, I must next

consider whether a similarly situated reasonable official would

- 17 - have known at the time that he had violated a clearly established

right.

The First Circuit has determined that a "public employee's

right to petition the government with respect to matters of

public concern has been clearly established since Connick."

Boyle,

. Defendants nevertheless argue that they

are entitled to qualified immunity because a similarly situated

reasonable official would not have known that firing Fritz for

disclosing a charging party's confidential information in a prior

lawsuit and gross insubordination violated his First Amendment

right to petition. See Wagner v. Citv of Holyoke.

(1st Cir. 2005) .

Defendants' argument on this point turns on disputed facts.

According to Fritz, the defendants' purported reasons for firing

him (confidentiality and insubordination) were merely pretext,

and that they actually fired him as retaliation for filing his

initial lawsuit. Construing the facts in the light most

favorable to Fritz, as I must do at this stage, I conclude that a

reasonable official would have known that terminating a public

employee for filing a First Amendment retaliation lawsuit

alleging matters of public concern violated his clearly

- 18 - established right to do so. Accordingly, the defendants are not

entitled to qualified immunity based on the present record.4

IV. CONCLUSION

For the reasons stated above, defendants' motion to dismiss

(Doc. No. 9) is granted in part and denied in part.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

August 29, 200 7

cc: Pierre Rumpf, Esq. Paula Werme, Esq. Nancy J. Smith, Esq.

4 Although I rule against defendants on qualified immunity grounds today, I am willing to reexamine the issue at the summary judgment stage if the evidence does not support Fritz's allegations.

- 19 -