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 a l .

MEMORANDUM AND ORDER

William Carey Carlberg, J r . alleges that he was improperly

demoted from the rank of Highway Patrol and Enforcement

Lieutenant to the rank of State Police Sergeant at a lower salary

grade. Before the court are cross motions for summary judgment

with respect to Counts II and III of Carlberg’s First Amended

Complaint. Count II alleges that Carlberg was wrongly demoted

without due process of law by his employer, the New Hampshire

Department of Safety, and its Commissioner, John J. Barthelmes.

Count III alleges that defendants violated Carlberg’s First

Amendment right to free speech by demoting him and constructively

terminating him in retaliation for his public criticisms of New

Hampshire Department of Safety practices. For the reasons given

below, I conclude that defendants are entitled to summary

judgment on both counts. 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. (Def. Exhibit A - 5 , p .

2 9 , § 19.21.) 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

-2- 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

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 I I , a non-

commissioned position 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 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

-3- Lieutenants were also reclassified to 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.” (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. Carlberg’s First Amended Complaint alleges violations of

his rights under the Uniformed Services Employment and

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

-4- 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 ) . 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.

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

summary judgment on Count II of his First Amended Complaint,

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 has 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 now 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.

-5- 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).

A party seeking summary judgment must first identify the

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

Catrett,

1 7 , 323 (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

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

-6- of review is applied to each motion separately. See Am. Home

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

1 0 , 812

(1st Cir. 2006).

III. ANALYSIS

In Count I I , Carlberg claims a violation of his Fourteenth

Amendment right to procedural due process when he was allegedly

wrongfully demoted. Count III of Carlberg’s First Amended

Complaint (renumbered as Count IV of his Second Amended

Complaint) alleges a violation of his First Amendment right to

free speech in connection with an alleged adverse employment

action. I address each count in turn.

A. Wrongful Demotion Claim

Pursuant to

, Carlberg alleges that he was

wrongfully demoted without prior notice or a hearing in violation

of his right to procedural due process. (First Amended Compl.,

Doc. N o . at ¶ 65.) “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) (citations omitted).

-7- Carlberg asserts a protected property interest in his continued

employment at the rank of 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 II 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,

6 4 , 577 (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

-8- law-rules or understandings that secure certain benefits and that

support claims of entitlement to those benefits.” Roth,

.

Carlberg contends that his property interest in his

continued employment at the rank of Lieutenant at salary grade 27

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. He argues that he has a

property right in his continued employment and is entitled to the

process afforded under RSA § 106-B:5 because he was demoted. 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.

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, 145 N.H.

-9- 288, 2 9 0 ,

(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 decided

whether the definition of demotion under the PELRB personnel

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. Likewise, PELRB personnel rule 1002.07, which Carlberg

also cites, addresses only disciplinary demotions. 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.

In this case, a review of the personnel rules shows that the

action taken was a reclassification that was part of a department

-10- 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.

-11- 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 in such an

event:

In the event of a departmental reorganization, the employer agrees to maintain a 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.

(Def.’s Exhibit A - 5 , p . 2 9 , § 19.21.)

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

-12- of employees, Carlberg possessed no entitlement to continued

employment at the rank of Lieutenant at salary grade 2 7 . See

Mandel v . Allen,

7 8 , 481-82 (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 at the

rank of 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 demoted 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

-13- that he was demoted. (Pl.’s Mot. for Partial Summ. J., Doc. N o .

31 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,

4 8 , 155 (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 was neither fired nor demoted.

Rather, 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 and salary grade for Carlberg, but the evidence

does not demonstrate that the reclassification reflected poorly

on Carlberg’s reputation. He was treated the same as two other

-14- Highway Patrol Lieutenants and numerous other Highway Patrol

Officers. Further, there is no evidence that his reclassifi-

cation 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 I I .

B. First Amendment Claim

Carlberg alleges that the he was “demoted and effectively

constructively terminated in retaliation for his public

criticisms of New Hampshire Department of Safety practices.”

-15- (First Amended Cmplt., Doc. N o . 11 at ¶ 72.) Defendants assert

that they are entitled to summary judgment on Count III (now

renumbered as Count IV) because there is no evidence to support

Carlberg’s claim that an adverse employment action was taken

against him in retaliation for his public criticism of Department

of Safety practices.

“Public employees do not lose their First Amendment rights

to speak on matters of public concern simply because they are

public employees.” Curran v . Cousins,

6 , 44 (1st Cir.

2007) (citing Connick v . Myers,

3 8 , 142 (1983)). “[A]

State may not discharge an employee on a basis that infringes

that employee’s constitutionally protected interest in freedom of

speech[.]” Aponte-Torres, 445 F.3d at 56 (quoting Rankin v .

McPherson,

7 8 , 383 (1987)). However, an individual’s

First Amendment rights are not absolute and in order for a public

employee’s speech to be protected by the First Amendment, the

employee must make a prima facie showing that (1) he spoke as a

citizen on a matter of public concern; (2) his interest in the

speech outweighed any countervailing government interest in

promoting the efficient performance of the service provided by

its employees; and (3) the protected speech was a substantial or

motivating factor in an adverse employment decision. Torres-

-16- Rosado v . Rotger-Sabat,

, 11 (1st Cir. 2003). If the

court finds that the employee has made a prima facie showing,

then the burden shifts to the defendants to show by a

preponderance of the evidence that the governmental agency would

have taken the same action “even in the absence of the protected

conduct.” M t . Healthy City School Dist. Bd. of Educ. v . Doyle,

7 4 , 287 (1977).

In the present case, the parties debate whether an adverse

employment action was taken against Carlberg. Actions including

dismissals, demotions, denials of promotions, and transfers can

constitute adverse employment actions. Welch v . Ciampa,

(1st Cir. 2008). In addition, actions that result in

the loss of supervisory positions, additional duties, and

opportunities for additional pay can constitute adverse

employment actions.

Further, a constructive discharge can

constitute an adverse employment action. Constructive discharge

may consist of “harassment so severe and oppressive that staying

on the job while seeking redress-the rule save in exceptional

cases-is ‘intolerable.’” Reed v . MBNA Mktg. Sys., Inc.,

7 , 33 (1st Cir. 2003)(quoting Keeler v . Putnam Fiduciary Trust

Co.,

, 9-10 (1st Cir. 2001)). “To prove constructive

discharge, a plaintiff must usually show that [his] working

-17- conditions were so difficult or unpleasant that a reasonable

person in [his] shoes would have felt compelled to resign. The

standard is an objective one; an employee’s subjective

perceptions do not govern.” Lee-Crespo v . Schering-Plough Del

Caribe Inc.,

4 , 45 (1st Cir. 2003)(internal quotations

and citations omitted).

I need not decide whether the personnel action in question

constitutes an adverse employment action in this case, however,

because Carlberg has offered no evidence to show that his speech

was a substantial or motivating factor in his change of position.

All of the evidence presented indicates that Carlberg was neither

a target of any disciplinary action nor treated any differently

than other Highway Patrol and Enforcement officers.

Specifically, Carlberg was treated the same as all three

Lieutenants in the Highway Patrol when his position was

reclassified as part of a department wide reorganization. While

Carlberg need not produce a “smoking gun” to carry his initial

burden that his speech was a substantial or motivating factor in

the personnel action, he must adduce some evidence suggesting

that his speech played a role in the personnel action. See Lewis

v . City of Boston,

0 7 , 219 (1st Cir. 2003). Carlberg,

however, has produced no evidence to demonstrate that his speech

-18- was a substantial or motivating factor in the personnel action.

Nor has Carlberg produced any evidence to demonstrate that

actions were taken against him personally and that his reclassi-

fication was not a part of a department wide reorganization.1

In sum, Carlberg has failed to rebut defendants’ contention

that he has not made a prima facie showing that he was

reclassified in retaliation for public criticisms of the

Department of Safety. Thus, the defendants are entitled to

summary judgment on Count III (now renumbered as Count I V ) .

1 Federal Rule of Civil Procedure 56(f) provides that if a party opposing a motion shows by affidavit that, for specified reasons, its cannot present facts essential to justify its opposition, a court may: (1) deny the motion; (2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue an other just order. To the extent that Carlberg claims that summary judgment would be premature because he has not been able to obtain evidence to support his allegations, he has not complied with Rule 56(f). See Rivera-Torres v . Rey-Hernandez,

, 10 (1st Cir. 2007)(To invoke Rule 56(f), a party must submit an affidavit or other document showing (i) good cause for his inability to have discovered the necessary facts; (ii) a plausible basis for believing that additional facts probably exists and can be retrieved within a reasonable time; and (iii) an explanation of how those facts will be material to his opposition); Adorno v . Crowley Towing & Transp. Co.,

(1st Cir. 2006). Carlberg has not given any reasons why he cannot present facts needed to oppose the defendants’ summary judgment motion. Therefore, this is not a valid reason to deny summary judgment.

-19- IV. CONCLUSION

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

for summary judgment (Doc. N o . 3 1 ) . I grant the defendants’

motion for partial summary judgment with respect to Carlberg’s

claim of wrongful demotion without due process of law (Count II)

and Carlberg’s claim that the defendants violated his First

Amendment right to free speech (Count I I I , renumbered as Count IV

in Carlberg’s Second Amended Complaint) (Doc. N o . 3 5 ) .

The parties are directed to file motions for summary

judgment with respect to Carlberg’s new claim of wrongful

decommissioning without due process of law (Count III in

Carlberg’s Second Amended Complaint) within ten days of this

order. Objections shall be filed within ten days of the filing

of summary judgment motions. No reply memoranda shall be filed.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

May 1 2 , 2009

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

-20-