Carlberg v. NH Dept of Safety et al. CV-08-230-PB 08/27/09

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

William Carey Carlberg, Jr.

v. Case N o . 08-cv-230-PB Opinion N o .

New Hampshire Department of Safety, et al.

MEMORANDUM AND ORDER

William Carey Carlberg, Jr. alleges that he was wrongfully

decommissioned and demoted from the rank of Highway Patrol and

Enforcement Lieutenant to the rank of State Police Sergeant.

Before the court are cross motions for summary judgment with

respect to Count III of Carlberg’s Second Amended Complaint

alleging that Carlberg was wrongfully decommissioned without due

process of law by his employer, the New Hampshire Department of

Safety, and its Commissioner, John J. Barthelmes. For the

reasons given below, I conclude that defendants are entitled to

summary judgment.

I . BACKGROUND

A. Factual Background

On May 1 , 2007, Carlberg, an employee of the New Hampshire

Department of Safety, was deployed to active duty by the United States National Guard. At the time of his deployment, Carlberg

held the rank of Highway Patrol and Enforcement Lieutenant with

the Bureau of Highway Patrol and Enforcement within the Division

of Motor Vehicles at the New Hampshire Department of Safety.

While Carlberg was deployed, Barthelmes, with the approval

of the Governor and the Executive Council, reorganized the

Department by moving the Highway Patrol from the Division of

Motor Vehicles into the Division of State Police. A collective

bargaining agreement with terms relating to departmental

reorganization was in effect at the time. (Defs.’ Exhibit A - 1 ,

p . 2 9 , § 19.21, Doc. N o . 55-4.) The reorganization sought to

merge the two police forces in order to improve the

administration and efficiency of the Department of Safety. This

merger of the two police forces did not eliminate any classified

positions, but did involve a reclassification of Highway Patrol

and Enforcement Officer positions of various ranks. Where an

employee’s title or salary grade was changed, the employee’s

annual base salary was maintained through an adjustment in steps

within the new salary grade.

Prior to this reorganization, Carlberg was a commissioned

Lieutenant with the Bureau of Highway Patrol and Enforcement at

salary grade 27 step 6, with an annual salary of $73,248.75 and

-2- the possibility to advance two steps to an annual salary of

$79,863.77. In addition, in 2006, Highway Patrol Enforcement

Command Officers, including Carlberg, received a 2% wage

enhancement. As a result of the reorganization, Carlberg’s new

title became State Police Regulatory Sergeant II at salary grade

26 in the new Bureau of Driver and Vehicle Regulation within the

Division of State Police. When Carlberg was reclassified as a

Regulatory Sergeant II at salary grade 2 6 , he was placed at step

7 , with an annual salary of $73,248.75 without a 2% wage

enhancement. At salary grade 26 step 7 , Carlberg had the

possibility to advance one step to an annual salary of

$76,428.71. Carlberg contends that he was also decommissioned to

a non-commissioned status. The defendants contend that Carlberg

was not decommissioned; rather his rank was changed due to

reorganization in the Department of Safety. (Barthelmes

Affidavit, Defs.’ Exhibit A at ¶ 9, Doc. N o . 55-3.)

Carlberg was treated the same as the two other existing

Highway Patrol Lieutenants, who were also reclassified to the new

position of State Police Regulatory Sergeant II and reduced from

salary grade 27 to salary grade 26 with an adjustment of steps so

that base salaries would remain the same. Employees in positions

other than Highway Patrol Lieutenants were also reclassified to

-3- positions with new titles, although not all position

reclassifications were accompanied by a change in salary grade.

Carlberg received no prior notice of this reorganization and

learned of this personnel action in February 2008 while he was

deployed. On May 2 3 , 2008, Carlberg wrote Barthelmes a letter

demanding that he be immediately reinstated to the rank of

Lieutenant. Barthelmes responded to Carlberg, denying his

request and explaining that the personnel action was part of a

reorganization of the Department of Safety. Barthelmes further

explained that “[b]ecause the ranks in grades in the much smaller

Highway Patrol were inflated in comparison with the ranks and

grades of officers performing similar and in may cases more

complex duties in the State Police, it became necessary to adjust

the rank structure so the two would be similar.” (May 2 9 , 2008

Letter, Pl.’s Exhibit D, Doc. N o . 31-6.)

B. Procedural Background

Carlberg commenced this lawsuit on June 1 0 , 2008 and filed

his First Amended Complaint consisting of six counts on July 7 ,

2008. 1 Carlberg’s First Amended Complaint alleged violations of

1 The defendants named by Carlberg included the New Hampshire Department of Safety, John Barthelmes, individually and in his official capacity as Commissioner of the New Hampshire Department of Safety, Kelly Ayotte, individually and in her official capacity as Attorney General of the State of New

-4- his rights under the Uniformed Services Employment and

Reemployment Rights Act of 1994 (“USERRA”)(Count I ) , his

Fourteenth Amendment procedural due process rights (Count I I ) ,

his First Amendment right to free speech (Count I I I ) , and state

law (Counts IV, V , and V I ) . 2 The Court dismissed Count I on

October 1 5 , 2008 and ordered the defendants to file a summary

judgment motion addressing Counts II and III of the First Amended Complaint.3

On November 1 4 , 2008, Carlberg filed a partial motion for

summary judgment on Count II of his First Amended Complaint,

Hampshire, Louis Copponi, individually and in his official capacity as an Officer of the New Hampshire Department of Safety, the Honorable Kenneth McHugh, in his official capacity as a Justice of the New Hampshire Superior Court, and John Does 1 through 1 0 . 2 Carlberg’s state law claims include discrimination under New Hampshire RSA Chapters 97 and 115-B, interference with his freedom of expression as guaranteed by New Hampshire RSA Chapter 98-E, and tortious constructive discharge in violation of public policy. 3 The Court dismissed Carlberg’s USERRA claims against the Department of Safety and the state defendants in their official capacities without prejudice. (October 1 5 , 2008 Order, Doc. N o . 2 9 ) . The Court also dismissed Carlberg’s USERRA claims against the individual defendants in their individual capacities for failure to state a claim. In addition, the Court dismissed all claims against Superior Court Judge Kenneth McHugh and Attorney General Ayotte for failure to state a claim. (Id.) Further, on April 7 , 2009 the Court granted Louis Copponi’s Motion for Summary Judgment on all counts in Carlberg’s First Amended Complaint. (April 7 , 2009 Margin Order.)

-5- claiming that he was demoted without due process. On December

1 2 , 2008, the defendants filed an objection to Carlberg’s partial

motion for summary judgment, and moved for summary judgment on

Counts II and III. Carlberg objected to the defendants’ summary

judgment motion.

On May 1 , 2009, Carlberg filed a Second Amended Complaint,

renumbering the counts from his earlier complaints and asserting

a new claim. Count I remains an allegation of a USERRA

violation. Count II remains an allegation that Carlberg was

wrongfully demoted without due process. Count III alleges

Carlberg’s new claim of wrongful decommissioning in violation of

his Fourteenth Amendment right to due process. Carlberg’s First

Amendment claim is renumbered as Count IV, and his state law

claims are renumbered as Counts V , V I , and VII.

On May 1 2 , 2009, I issued an order denying Carlberg’s motion

for partial summary judgment and granting the defendants’ motion

for partial summary judgment with respect to Carlberg’s claim of

wrongful demotion without due process of law (Count II) and his

claim that the defendants violated his First Amendment right to

free speech (Count III, renumbered as Count IV in Carlberg’s

Second Amended Complaint). I directed the parties to file

motions for summary judgment with respect to Carlberg’s new claim

-6- of wrongful decommissioning without due process of law (Count III

in Carlberg’s Second Amended Complaint).

Before the court are the parties’ cross motions for summary

judgment with respect to Carlberg’s wrongful decommissioning

claim.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the “pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c). The evidence submitted in support of the

motion for summary judgment must be considered in the light most

favorable to the nonmoving party, indulging all reasonable

inferences in its favor. See Navarro v . Pfizer Corp.,

0 , 93-94 (1st Cir. 2001)(citations omitted).

A party seeking summary judgment must first identify the

absence of any genuine issues of material fact. Celotex Corp. v .

Catrett,

(1986). The burden then shifts to the

nonmoving party to “produce evidence on which a reasonable finder

of fact, under the appropriate proof burden, could base a verdict

for i t ; if that party cannot produce such evidence, the motion

-7- must be granted.” Ayala-Gerena v . Bristol Myers-Squibb Co.,

6 , 94 (1st Cir. 1996); see Celotex,

. The

opposing party “may not rely merely on allegations or denials in

its own pleading; rather, its response must . . . set out

specific facts showing a genuine issue for trial.” Fed. R. Civ.

P. 56(e)(2). On cross motions for summary judgment, the standard

of review is applied to each motion separately. See Am. Home

Assurance C o . v . AGM Marine Contractors, Inc.,

(1st Cir. 2006).

III. ANALYSIS

Pursuant to

, Carlberg alleges that he was

wrongfully decommissioned without prior notice or a hearing in

violation of his right to procedural due process. (Second

Amended Compl., Doc. N o . 51 at ¶ 78.) “To establish a procedural

due process violation, a plaintiff must identify a protected

liberty or property interest, and allege ‘that the defendants,

acting under color of state law, deprived [him] of that . . .

interest without constitutionally adequate process.’” Aponte-

Torres v . Univ. of Puerto Rico,

0 , 56 (1st Cir. 2006)

(internal citation omitted). Carlberg asserts a protected

property interest in his continued employment as a commissioned

-8- Lieutenant at salary grade 2 7 , which cannot be altered without

affording him procedural due process. He also asserts a

protected liberty interest in his reputation, which he alleges

was besmirched by the defendants’ actions. Defendants assert

that they are entitled to summary judgment on Count III because

the uncontested facts demonstrate that Carlberg was not deprived

of a constitutionally protected property or liberty interest.

1. Property Interest

To have a property interest in employment or in a specific

benefit under the due process clause, an employee “must have more

than an abstract need or desire for i t . He must have more than a

unilateral expectation of i t . He must, instead, have a

legitimate claim of entitlement to it.” Bd. of Regents v . Roth,

(1972). Thus, a claimant must demonstrate that

there were “rules or mutually explicit understandings that

support his claim of entitlement” to his position or benefit.

Perry v . Sindermann,

(1972). Property

interests are not created by the Constitution, but “they are

created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as state

law-rules or understandings that secure certain benefits and that

-9- support claims of entitlement to those benefits.” Roth,

.

Carlberg cites no laws or regulations that explicitly

mention or define decommissioning to argue that he has a property

interest in his commission. Rather, Carlberg contends that his

property interest in his continued employment as a commissioned

Lieutenant stems from a New Hampshire statute that provides:

Any police employee may be suspended, discharged or demoted by the director for cause, with the approval of the commissioner of safety, but shall be entitled to a public hearing before discharge or demotion, but not suspension, if he so requests in writing addressed to the director not later than 10 days after notice of said discharge or demotion.

N.H. Rev. Stat. Ann. (“RSA”) § 106-B:5. Although decommissioning

is not mentioned in this statute, Carlberg argues that he has a

property right in his continued employment as a commissioned

officer and is entitled to the process afforded under RSA § 106-

B:5 because “to decommission an officer is to per se demote the

officer.” (Obj. to Defs.’ Mot. for Summ. J., Doc. N o . 6 3 , at 10

¶ 39.) He also relies on a personnel rule of the New Hampshire

Public Employee Labor Relations Board (“PELRB”) that defines

“demotion” as “a transfer of an employee from one position to

another position having a lower salary grade.” N.H. Admin. R.

Ann., Per 102.20. Thus, Carlberg argues that: he is entitled to

-10- due process before a demotion; a decommissioning is a per se

demotion; and it follows that he is entitled to due process

before a decommissioning.

Carlberg’s reliance on RSA § 106-B:5 and his contention that

the decommissioning of an officer is equivalent to demotion makes

his wrongful decommissioning argument nearly identical to the

argument I previously rejected when granting summary judgment for

the defendants on Carlberg’s wrongful demotion claim. I

reiterate here why Carlberg’s argument is unsuccessful and

elaborate on my analysis to address Carlberg’s claim that my

prior decision was incorrect.

Demotion is not defined within the governing statutory

chapter and it is not clear whether the definition of demotion

under the personnel rules governs the meaning of demotion under

RSA § 106-B:5. See In re New Hampshire Troopers Ass’n,

,

(2000) (declining to decide whether

the personnel rules govern the meaning of demotion under RSA §

106-B:5 and applying a plain meaning analysis to determine that a

state police’s reclassification of “soft corporals” as “trooper

II’s” did not constitute a demotion because there was no

reduction in job duties, pay, or benefits). I need not decide

whether the definition of demotion under the PELRB personnel

-11- rules governs the meaning of demotion under RSA § 106-B:5,

however, because RSA § 106-B:5 only addresses the director’s

authority to take disciplinary action against an employee for

cause. Carlberg contends that RSA § 106-B:5 does not specify

that a demotion must result from discipline and he argues that

the “cause” in this case to bring the action under the statute’s

purview was Barthelmes’ conclusion that an adjustment of the rank

structure was necessary. The term “for cause”, however, plainly

means an action taken because of breach, misfeasance, or other

inappropriate action of the other party. Thus, RSA § 106-B:5

addresses only demotion for disciplinary reasons and Barthelmes’

conclusion that an adjustment of the rank structure was necessary

is not the sort of cause contemplated by the statute. Likewise,

PELRB personnel rule 1002.07, which Carlberg also cites,

addresses only disciplinary demotions.4

4 Carlberg also relies on the First Circuit’s opinion in Bergeron v . Cabral,

(1st Cir. 2009), to argue that decommissioning is an “adverse employment action mandating constitutional due process protections.” (Pl.’S Mot. for Summ. J., Doc. N o . 59 at 10 ¶ 38.) This case, however, does not further Carlberg’s argument. In Bergeron, the First Circuit held that because only jail officers who were commissioned deputy sheriffs had opportunities to work paid security details, when the plaintiff jail officers were stripped of their commissions, they suffered an adverse employment action because their job responsibilities were constricted and their earning capacity was effectively reduced.

. The court held that the the defendant was not entitled to qualified immunity because no

-12- In the present case, there is no evidence to indicate that

the personnel action in question was a disciplinary action for

cause. Rather, Carlberg was treated the same as two other

Highway Patrol Lieutenants as well as multiple other employees.

The evidence indicates that the personnel action was part of a

merger of the entire Bureau of Highway Patrol and Enforcement

into the Division of State Police. Thus, neither RSA § 106-B:5

nor PELRB personnel rule 1002.07 apply in this circumstance. The

fact that a departmental reorganization could have taken place

without any changes in title or rank, does not change this

analysis because there is no evidence that the changes were made

for disciplinary reasons.

A review of the personnel rules shows that the action taken

by the defendants in this case was a reclassification that was

reasonable public official could have thought that they she could take such an adverse employment action against the plaintiffs because of their political affiliations and exercise of First Amendment rights in that context. Id. at 1 3 . In the present case, however, I previously granted the defendants summary judgment on Carlberg’s First Amendment claim because Carlberg had offered no evidence to show that his speech was a substantial or motivating factor in his change of position. (May 1 2 , 2009 Order, Doc. N o . 53.) Further, whether Carlberg suffered an adverse employment action is not the relevant question in a wrongful decommissioning claim. Even if Carlberg’s alleged decommissioning was attended by the loss of other benefits and thus constituted an adverse employment action, that does not mean that Carlberg had a constitutionally protected property interest in his commission.

-13- part of a department wide reorganization. See N.H. Admin. R.

Ann., Per 102.46 (“‘Reclassification’ means a determination by

the director that a position be assigned to a class different

from the one in which it was previously assigned”). New

Hampshire state officials are authorized to change the internal

administrative departmental organization of the Department of

Safety,

-P:15, and in so doing may

reclassify a state employee or otherwise alter the employee’s

position. Reclassification into a position with a lower salary

grade is contemplated by the personnel rules:

If the director reallocates or reclassifies a position into a class with a lower salary grade, the incumbent’s salary shall be adjusted as follows:

(1) The incumbent’s salary shall not be reduced for a period of 2 years;

(2) If the incumbent was not at the maximum step, the incumbent shall be eligible for annual step increases at the former grade that do not exceed the maximum of the new grade, provided such increases are documented by performance evaluations;

(3) After a period of 2 years, the appointing authority shall adjust the incumbent’s salary downward by assigning the step in the lower salary grade in accordance with Per 901.07(a); and ` (4) When the incumbent leaves the position, the appointing authority shall post the vacancy at the adjusted salary level set for the position and not at the level assigned to the employee who held the position prior to reallocation or reclassification.

-14- N.H. Admin. R. Ann., Per. 303.06(b). In addition, the collective

bargaining agreement in effect at the time of the personnel

action contemplates departmental reorganization and requires

salaries to remain the same, but creates no property interest in

continued employment at a particular salary grade or rank in such

an event:

In the event of a departmental reorganization, the employer agrees to maintain the salary of each classified member of the union, unless such reorganization would result in a higher salary. If such reorganization results in any or all members being moved to another division within the department, the employer agrees to continue using the employee’s date of hire with the Department of safety as a means of determining seniority within said division.

(Defs.’ Exhibit A - 1 , p . 2 9 , § 19.21, Doc. N o . 55-4.)

In short, New Hampshire law draws a distinction between

disciplinary personnel actions for cause and personnel actions

taken in the course of departmental reorganization. While

employees have a right to a hearing when their employer proposes

to demote them for cause, they have no vested right to protection

from a departmental reorganization conducted in accordance with

the requirements of state law. Accordingly, once the Governor

and Executive Council approved Commissioner Barthelemes’

reorganization of the Department of Safety and reclassification

of employees, Carlberg possessed no entitlement to continued

-15- employment as a commissioned Lieutenant at salary grade 2 7 . See

Mandel v . Allen,

(4th Cir. 1996) (determining

that state employees had no property interest in their employment

entitling them to due process protections when they were

dismissed under authority specifically granted to state officials

for “nongrievable” circumstances); Buchanan v . Little Rock

School Dist.,

(8th Cir. 1996)(determining that

school principal who was reassigned to administrative post had no

property interest in her status as principal where Arkansas law

did not create a right to remain a principal and transfer

provision provided school board authority to reassign).

Because Carlberg has not demonstrated that he had a

legitimate claim of entitlement to continued employment as a

commissioned Lieutenant at salary grade 2 7 , his claim that he was

deprived a protected property interest without due process of law

when he was wrongfully decommissioned fails as a matter of law.

2. Liberty Interest

Carlberg asserts a deprivation of a reputation-based liberty

interest, claiming that the defendants’ actions “negatively

impacted [his] good name, his honor, and [his] reputation, and

subjected [him] to embarrassment” from having his peers think

that he was decommissioned and demoted. (Pl.’s Mot. for Partial

-16- Summ. J., Doc. N o . 59 at ¶ 31.) “A public employer’s action may

deprive an employee of a constitutionally protected liberty

interest in his or her reputation” under certain circumstances.

Dasey v . Anderson,

(1st Cir. 2002). The First

Circuit has determined that

the Fourteenth Amendment procedurally protects reputation only where (1) government action threatens i t , (2) with unusually serious harm, (3) as evidenced by the fact that employment (or some other right or status) is affected. Moreover, the municipality terminating the employee must also be responsible for the dissemination of defamatory charges, in a formal setting (and not merely as the result of unauthorized “leaks”), and thereby significantly have interfered with the employee’s ability to find future employment.

Silva v . Worden,

6 , 32-33 (1st Cir. 1997)(citations and

internal quotations omitted).

In the present case, Carlberg’s position within the

Department of Safety, along with the positions of a number of

other employees, was reclassified in order to improve the

administration and efficiency of the Department. The

reclassification resulted in a change of title, rank, and salary

grade for Carlberg, but the evidence does not demonstrate that

the reclassification reflected poorly on Carlberg’s reputation.

Although the departmental reorganization did not effect every

transferred officer’s title, rank, and salary grade, Carlberg was

treated the same as two other Highway Patrol Lieutenants and

-17- numerous other Highway Patrol Officers. Further, there is no

evidence that his reclassification was a disciplinary action.

More importantly, there is no evidence that the defendants

disseminated any negative or defamatory information about

Carlberg or the reasons for his reclassification. All the

documents presented to the court indicate that the personnel

action was a reclassification that was not personal to Carlberg,

and nothing suggests any defamatory disclosures by the

defendants. Absent dissemination of defamatory information about

Carlberg by the defendants or harm to his reputation, Carlberg

has no protected liberty interest or constitutional right to

name-clearing hearing.

Because Carlberg did not present any evidence of conduct by

the defendants that would constitute a deprivation of a

constitutionally protected property or liberty interest without

due process of law, his claim fails and defendants are entitled

to summary judgment on Count III of Carlberg’s Second Amended

Complaint.

IV. CONCLUSION

For the foregoing reasons, I deny Carlberg’s partial motion

for summary judgment (Doc. N o . 5 9 ) . I grant the defendants’

-18- partial motion for summary judgment on Carlberg’s claim of

wrongful decommissioning (Doc. N o . 5 5 ) . This Order and my

previous Orders have resolved all of Carlberg’s federal claims.

In addition, I have dismissed all of Carlberg’s state law claims

against former Attorney General Kelly Ayotte and Superior Court

Judge Kenneth McHugh, and have granted summary judgment to Louis

Copponi on Carlberg’s state law claims. Carlberg’s remaining

claims are state law claims against the New Hampshire Department

of Safety and its Commissioner, John Barthelmes. I decline to

exercise supplemental jurisdiction over Carlberg’s remaining

state law claims. Accordingly, I dismiss those claims without

prejudice. The clerk is directed to enter judgment and close the

case in accordance with this Memorandum and Order.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

August 2 7 , 2009

cc: William Carey Carlberg, Jr. Laura E.B. Lombardi, Esq. Glenn R. Milner, Esq. James W . Donchess, Esq.

-19-