Huard v . Town of Allenstown et a l . CV-10-144-JL 2/8/11

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Gregory Huard

v. Civil N o . 10-cv-144-JL Opinion N o .

Town of Allenstown, Shaun Mulholland, and Michael Stark

MEMORANDUM ORDER

This case involves a police officer’s claim that he was

wrongfully terminated in retaliation for reporting misconduct by

fellow officers. Plaintiff Gregory Huard brought suit against

his former employer, the Town of Allenstown, and his former

supervisors, Shaun Mulholland and Michael Stark, asserting a

claim under

for violations of his constitutional

rights to free speech, petition of the government, and due

process, see U.S. Const. amends. I and XIV, a parallel claim

under the New Hampshire Constitution, see N.H. Const. p t . 1 ,

arts. 1 5 , 2 2 , and 3 2 , and state common-law claims for wrongful

termination and defamation. This court has subject-matter

jurisdiction under

(federal question), 1343

(civil rights), and 1367 (supplemental jurisdiction).

The defendants have moved for judgment on the pleadings, see

Fed. R. Civ. P. 12(c), on each of Huard’s common-law claims.

After hearing oral argument, this court grants the motions in

part and denies them in part. Huard has made sufficient allegations to proceed with discovery on his claim for wrongful

termination against the town, but not his claim for defamation

against the two supervisors.

I. Applicable legal standard

A motion for judgment on the pleadings under Rule 12(c) is

evaluated under essentially the same standard as a Rule 12(b)(6)

motion for failure to state a claim. See, e.g., Simmons v .

Galvin,

4 , 30 (1st Cir. 2009). To survive such a

motion, the “complaint must plead facts that ‘raise a right to

relief above the speculative level, on the assumption that all

the allegations in the complaint are true.’”

(quoting Bell

Atl. Corp. v . Twombly,

4 4 , 555 (2007)). In determining

whether the complaint meets that standard, the court must

construe the complaint’s allegations in the light most favorable

to the plaintiff, drawing all reasonable inferences in his favor.

Id.; see also Perez-Acevedo v . Rivero-Cubano,

6 , 29

(1st Cir. 2008). The following statement of facts conforms to

those requirements.

II. Background

Huard began working for the Town of Allenstown as a police

officer in 2001, achieving the rank of sergeant in 2003. He

received favorable performance reviews through 2007, the last of

2 them from defendant Mulholland, who had recently become the

town’s police chief. Around that time, Chief Mulholland began

making sweeping changes to the police department. He implemented

new disciplinary procedures, approved by the town’s Board of

Selectmen, under which officers could no longer appeal minor

disciplinary actions to the Board (previously, all disciplinary

actions had been appealable), and three such actions against a

single officer could result in termination. He also made a

number of personnel changes, resulting in heavy turnover among

the department’s officers.

One of the personnel changes involved Huard, who agreed to

step down as sergeant and take the lower-ranking position of

master patrolman. Huard alleges that, before that demotion,

Chief Mulholland “demeaned [him] and undermined [his] rapport

with the newer officers under their command” and then used that

lack of rapport as a basis for deeming him unfit to be sergeant.

After the demotion, Mulholland and defendant Stark (who had been

hired to replace Huard as sergeant, and was later promoted to

lieutenant) subjected Huard to a series of minor disciplinary

actions. Although they were unjustified, Huard had no ability to

appeal the disciplinary actions under Chief Mulholland’s new

procedures. Hoping to maintain a good working environment, Huard

endured the discipline without protest.

3 In January 2008, Huard reported to Stark an incident

involving “severe” misconduct by a fellow officer (not

specifically described in the complaint). But Stark viewed it as

“nothing more than a disagreement between officers.” So Huard

took his complaint up the chain of command to then-lieutenant

Paul Paquette. Paquette responded, however, by assigning Stark

to investigate i t . In the end, the other officer received no

disciplinary action; Huard, though, was reprimanded for allegedly

making a personal call on his cell phone during work hours, which

he claims was demonstrably untrue. Huard expressed concerns to

Chief Mulholland about this outcome, but to no avail. Rather

than address Huard’s concerns, Mulholland began to “act

vindictively” toward him, as did Stark.

Huard was disciplined further in February and April 2008 for

failing to stamp “fax” on an internal document and for other

behavior wrongly deemed “inappropriate.” Finally, in November

2008, Chief Mulholland suspended Huard for the manner in which he

responded to an emergency call relating to “shots fired and an

open door to a residence.” Again, Stark was assigned to

investigate Huard, and he recommended in December 2008 that Huard

be terminated. Mulholland agreed and implemented termination

proceedings. Huard requested a hearing before the Board of

Selectmen, see N.H. Rev. Stat. § 41:48 (providing that a police

officer may be “removed for cause by [town] selectmen, after

4 notice and hearing”), scheduled for February 2009 at the town

offices.

Before the hearing, Huard observed a number of

irregularities that led him to conclude that it would be merely a

“rubber stamp” of Mulholland’s decision: First, Huard’s name and

contact information had been removed from the town’s public

website. Second, Mulholland had told the Board of Selectmen

during a regular public meeting that none of the town’s officers

had more than five years of experience, when Huard had seven.

Third, the hearing was moved at the last minute to the police

department. Fourth, after arriving for the hearing, Huard and

his wife noticed that his name had been removed from the

department’s organizational chart, dated January 2009 and posted

on a bulletin board “in plain view in the semi-public portion of

the police department.”

As the hearing began, the police department’s attorney

objected to the presence of Huard’s wife (who, Huard claims, was

there “to offer solace and support”). Then, rather than

summarize the charges and evidence against Huard and give him an

opportunity to respond, the attorney called Huard as the first

witness and “conduct[ed] unrestricted questioning of him.” Huard

objected to that procedure as “inquisitional, not fair and

participatory,” but the Board of Selectmen overruled his

objection. Concluding that the Board had already decided to

5 terminate him and that anything he said at the hearing would be

futile, Huard tendered his resignation.

Huard brought suit against the town, Chief Mulholland, and

L t . Stark in New Hampshire Superior Court in November 2009,

alleging:

• wrongful termination against the town (count 1 ) ; 1

• violations of his federal and state constitutional rights to free speech and due process against all defendants (count 2 ) , see U.S. Const. amend. I and XIV (enforceable under

); N.H. Const. p t . 1 , art. 1 5 , 2 2 , and 3 2 ;

• intentional infliction of emotional distress against Mulholland and Stark (count 3 ) , which Huard has since voluntarily withdrawn;

• negligence against Mulholland and Stark (count 4 ) , which Huard has also voluntarily withdrawn; and

• defamation against Mulholland and Stark (count 5 ) .

The defendants removed the case to this court in light of the

federal constitutional claims. See

(b). They

then moved for judgment on the pleadings on Huard’s state-law

claims for wrongful termination and defamation. See Fed. R. Civ.

P. 12(c). 2 This court will analyze each claim in turn.

1 Huard also asserted claims for “constructive termination” and “employer liability,” but has since conceded that those claims may be “folded into” his wrongful termination claim. See document n o . 14-1, at 2 . 2 After Huard addressed his constitutional claims in his objection to the Rule 12(c) motion, the defendants argued in their replies that this court should grant them judgment on those claims as well. “Ordinarily,” however, “this court does not consider theories advanced for the first time in reply,”

6 III. Analysis

A. Wrongful termination (count 1 )

First, the town argues that Huard has not alleged sufficient

facts to support a claim for wrongful termination under New

Hampshire law. “To succeed on such a claim, a plaintiff must

prove: (1) that the termination of employment was motivated by

bad faith, retaliation or malice; and (2) that [he] was

terminated for performing an act that public policy would

encourage or for refusing to do something that public policy

would condemn.” Lacasse v . Spaulding Youth Ctr.,

(2006). A plaintiff need not prove that he was expressly

fired; the “termination” can also be “a constructive discharge,

which occurs when an employer renders an employee’s working

conditions so difficult and intolerable that a reasonable person

would feel forced to resign.”

. Constructive

discharge requires more than just “minor abuse of an employee;

rather, the adverse working conditions must generally be ongoing,

repetitive, pervasive, and severe.”

.

Huard admits that he resigned from his job at the police

department, rather than being expressly fired. Nevertheless, he

claims that he was constructively discharged in retaliation for

especially where the theories relate to claims not even challenged by the original motion. Doe v . Friendfinder Network, Inc.,

8 8 , 303 n.16 (D.N.H. 2008). So Huard’s constitutional claims will not be considered at this time.

7 reporting misconduct by fellow officers. The town argues that

Huard’s “complaint is devoid of any facts which would support an

inference” of constructive discharge. As recounted in Part I I ,

supra, however, Huard alleges that his supervisors “demeaned

[him] and undermined [his] rapport” with other officers,

repeatedly disciplined him without justification, and treated him

“vindictively” after he complained. He further alleges that the

town had already decided to fire him by the time of his

resignation and taken steps consistent with that decision.

Construed in the light most favorable to Huard, those allegations

support an inference that his working conditions were so

difficult and intolerable that a reasonable person in his

position would have felt forced to resign.

This case is similar, in some respects, to Karch v . BayBank

FSB,

(2002), where an employee brought a

wrongful termination claim based on allegations that, like Huard,

“she was disciplined and threatened with termination because of

[a] private telephone conversation” and then “continually

harassed” by her supervisor after she requested “an explanation

and apology.”

. The New Hampshire Supreme Court

affirmed the trial court’s denial of a motion to dismiss the

claim, rejecting the employer’s argument that the employee had

not sufficiently alleged a constructive discharge. “Assuming the

truth of [the complaint’s] allegations and construing all

8 reasonable inferences therefrom in favor of the plaintiff,” the

court concluded that the claim was “reasonably susceptible of a

construction that would permit recovery.”

The same is true

of Huard’s claim against the town.

Also instructive is Lacasse, 154 N.H. at at 247. There, an

employee brought a wrongful termination claim based on

allegations that her supervisor yelled at her twice, treated her

“gruffly” for two days, and then gave her a critical review. The

Supreme Court reversed the trial court’s grant of summary

judgment to the employer, concluding that it was a jury question

whether the employee had been constructively discharged. Noting

the supervisor’s earlier statement that “if she comes across

anything she dislikes about [an employee], she makes it miserable

enough for them to quit,” the court explained that a jury could

find that “a reasonable person in the plaintiff’s position would

conclude that [the supervisor] was trying to drive her out, and

that the relatively short period of mistreatment was only the

beginning of a campaign of abuse that would continue until she

quit.”

Here, Huard alleges that the “campaign” to “drive

[him] out” was even further along--indeed, that it was coming to

a close--by the time he resigned.

In light of those New Hampshire Supreme Court cases and

others, see, e.g., Porter v . City of Manchester,

0 , 42

(2004) (upholding jury verdict in favor of employee who alleged

9 constructive discharge based on a series of threatening comments

and conduct by his supervisor), Huard’s wrongful termination

claim cannot be resolved as a matter of law on the pleadings.

This ruling is without prejudice, however, to reconsidering the

constructive discharge issue in the context of a motion for

summary judgment, see Fed. R. Civ. P. 5 6 , after the parties have

an opportunity to develop the factual record.

B. Defamation (count 5 )

The defendants also argue that Huard has not alleged

sufficient facts to support a claim for defamation under New

Hampshire law. “A plaintiff proves defamation by showing that

the defendant failed to exercise reasonable care in publishing a

false and defamatory statement of fact about the plaintiff to a

third party, assuming no valid privilege applies to the

communication.” Pierson v . Hubbard,

6 0 , 763 (2002)

(citing Restatement (Second) of Torts § 558 (1997)); see also

Thomas v . Tel. Publ’g Co.,

1 4 , 321 (2007). Huard

alleges that the defendants, knowing he had been suspended and

was awaiting a hearing before the Board of Selectmen, falsely

suggested to the public that he had already been terminated,

including by removing his name from the town’s website and from

the organizational chart posted at the police department, and

10 also by stating at a public hearing that the town had no officers

with Huard’s level of seniority.3

The defendants argue that those statements cannot reasonably

be construed to have a defamatory meaning and that, even if they

could, Huard has not identified any person who construed them

that way, or even noticed them (except for his wife, who knew his

true employment status). The latter point, while accurate, is

not a proper basis for dismissal under New Hampshire law. See

Thomson v . Cash,

7 1 , 374 (1979) (“Although in some

jurisdictions pleadings in defamation are insufficient unless

they specify the person or persons to whom the defamatory

language was communicated, we think this is properly an issue for

trial and that the absence of any such identification in the

pleadings is not grounds for dismissing the action.”). Huard has

sufficiently alleged, albeit without naming a specific person,

that the defendants’ statements were communicated to third

parties.

This court agrees with the defendants, however, that none of

the statements can reasonably be construed to have a defamatory

3 There is some tension between Huard’s defamation claim, which alleges that it was false to suggest he had been discharged, and his wrongful termination claim, which alleges that he had indeed been discharged (albeit constructively). But a party is allowed to “state as many separate claims . . . as it has, regardless of consistency,” Fed. R. Civ. P. 8(d)(3), so that tension is not a basis for judgment on the pleadings.

11 meaning. “Whether a communication is capable of bearing a

defamatory meaning is an issue of law [for] the court.” Thomas,

. Courts have generally held that “the mere

statement of discharge from employment does not constitute”

defamation, unless “the publication contains an insinuation that

the discharge was for some misconduct.” Davis v . Ross,

0 , 84 (2d Cir. 1985) (citing Nichols v . Item Publishers, Inc.,

6 0 , 862 (N.Y. 1956)); see also, e.g., BPSS, Inc. v .

Wilhold, N o . 08-1063,

, at * 4 , (E.D. M o . Mar. 1 8 ,

2009); Picard v . Brennan,

(Me. 1973). There

was no such insinuation here. Indeed, there was not even an

express statement that Huard had been discharged (as opposed to

having been suspended, which he was, or having resigned, which he

later d i d ) .

As the defendants note, if the mere removal of an employee’s

name from an organizational chart (or the like) could give rise

to liability for defamation, then employers would have to provide

an explanation for every such removal, or else stop publishing

organizational charts altogether, in order to avoid liability.

Huard has not made any attempt to defend that impractical result

(his objection contains only a conclusory paragraph on the

defamation claim), nor is this court prepared to accept i t , in

light of the case law just cited. See also, e.g., 2 Rodney A .

Smolla, Law of Defamation § 15:16, at 15-24 (2d ed. 2010) (“When

12 the employer does not say anything negative” about the employee,

“beyond the sort of vague and neutral type of statement” that the

employee has been terminated, “the defamation count should be

dismissed.”). Huard’s defamation claim must therefore be

rejected on the pleadings.

IV. Conclusion

For the reasons set forth above, the defendants’ motions for

judgment on the pleadings4 are GRANTED as to Huard’s claim for

defamation (count 5 ) , but DENIED as to his claim for wrongful

termination (count 1 ) , as well as his constitutional claims

(count 2 ) , which the defendants did not challenge until their

reply briefs.

SO ORDERED.

Joseph N . Laplante ited States District Judge

Dated: February 8 , 2011

cc: Darrin R. Brown, Esq. Donald L . Smith, ESq. Brian J.S. Cullen, Esq.

4 Documents n o . 9 and 1 0 .

13