Defina v . Hooksett, et a l . CV-10-372-PB 4/10/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jason Defina

v. Case N o . 10-cv-372-PB Opinion N o .

Town of Hooksett, et a l .

MEMORANDUM AND ORDER

Jason Defina sued the Town of Hooksett, the Hooksett Police

Commission, and Police Chief Stephen Agrafiotis alleging

constitutional and state law claims arising from his termination

from the Hooksett Police Department. Agrafiotis moves to

dismiss two of Defina’s claims against him: violation of his due

process rights under

and wrongful termination.

Defina objects. In this Memorandum and Order, I grant

Agrafiotis’s motion to dismiss.

I. BACKGROUND1

Defina was hired as a patrolman for the Hooksett Police

Department (“HPD”) on July 6, 1999. He worked at the HPD for

1 The background is taken from the Amended Complaint (Doc. N o . 21) construed under the Rule 12(b)(6) standard. the next five and a half years without incident as a pistol,

rifle, and baton instructor, as well as a field training officer

for new recruits.

On January 1 0 , 2005, Defina and Sergeant Greg Martakos met

with Police Commissioner Richard Bairham to discuss “abusive”

HPD practices. Those practices included the use of internal

investigations to intimidate officers who were critical of

Agrafiotis and various “preferential and vindictive personnel

practices.” In addition, Defina and Martakos expressed their

concern regarding Agrafiotis’s mental stability and referenced a

specific incident involving a civilian employee where Agrafiotis

improperly reached for his weapon. Another Commissioner, David

Gagnon, requested that Defina and Martakos put their concerns in

writing.

On January 1 7 , Defina and Martakos filed a written

complaint against Agrafiotis on behalf of themselves and certain

other officers and civilian employees. The next day, the

Commission voted to place Agrafiotis on leave.

The Commission appointed an outside investigator, Gerald J.

Hayes, to look into the complaints against Agrafiotis and

designated Defina as the liaison with Hayes. Defina acted as

2 the liaison for the duration of the investigation but complained

to the Commission that it had improperly interfered with the

investigation by prohibiting Hayes from interviewing former HPD

employees. On March 2 8 , the Commission sent a memorandum to the

HPD stating that based upon Hayes’s investigation, Agrafiotis

was being reinstated as chief of the department.

Over the next few years, Agrafiotis engaged in a pattern of

retaliation and harassment against Defina for initiating the

complaint. The retaliatory actions included bringing false

disciplinary charges, manipulating disciplinary investigations

in order to secure findings of misconduct, influencing other

officers to prepare false and negative personnel evaluations,

and denying Defina promotional opportunities.

In April 2008, Defina was assigned to serve as the School

Resource Officer (“SRO”) for the Hooksett School District. In

October 2008, Agrafiotis directed Defina to reduce the number of

hours he spent on his SRO duties to two hours each day. Maura

Ouellette, the chair of the Hooksett School Board, sent a letter

to a local newspaper, the Hooksett Banner, discussing and

complaining about the HPD’s decision to reduce Defina’s SRO

hours. Shortly thereafter, an article appeared in the Hooksett

3 Banner criticizing the reduction of hours.

Agrafiotis directed Defina to contact the author of the

article to respond to the criticisms. Defina attempted but

failed to contact the author and was disciplined.

On November 1 4 , 2008, on Defina’s day off, Agrafiotis

directed Defina to come to the Hooksett police station and draft

a report addressing the issues in Ouellette’s letter and the

newspaper article. Defina drafted a report that Agrafiotis

deemed to be unsatisfactory. Thereafter, other officers in the

HPD prepared a report for Defina, and Defina reluctantly signed

his name to it despite believing it to be inaccurate.

In the following months, Agrafiotis continued to take

retaliatory actions against Defina, including instituting

numerous disciplinary actions and removing him from his SRO

position. Although Defina had received positive daily

evaluations from his supervisor, the Commission voted to

terminate Defina on September 8 , 2009, for unsatisfactory

performance. The Commission did not afford Defina a hearing

before the termination vote.

II. STANDARD OF REVIEW

4 In considering a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6), I “accept as true the well-pleaded

factual allegations of the complaint, draw all reasonable

inferences therefrom in the plaintiff’s favor and determine

whether the complaint, so read, sets forth facts sufficient to

justify recovery on any cognizable theory.” Martin v . Applied

Cellular Tech.,

, 6 (1st Cir. 2002). The plaintiff

must make factual allegations sufficient to “state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v .

Twombly,

4 4 , 570 (2007). A claim is facially

plausible when it pleads “factual content that allows the court

to draw the reasonable inference that the defendant is liable

for the misconduct alleged. The plausibility standard is not

akin to a ‘probability requirement,’ but it asks for more than a

sheer possibility that a defendant has acted unlawfully.”

Ashcroft v . Iqbal, 129 S . C t . 1937, 1949 (2009) (citations

omitted).

III. ANALYSIS

Agrafiotis moves to dismiss two of the claims against him:

a procedural due process claim brought under Section 1983 and a

5 wrongful termination claim. I address each claim in turn.

A. Procedural Due Process

Defina alleges in Count II that defendants, including

Agrafiotis, deprived him of his protected property interest in

his continued employment with the HPD without constitutionally

adequate process. Agrafiotis argues that he did not violate

Defina’s due process rights because he had no authority, and was

not involved in the decision, to terminate Defina’s employment.

To establish a procedural due process claim, a plaintiff in

Defina’s position must show that defendants deprived him of a

protected liberty or property interest without constitutionally

adequate process. Aponte-Torres v . Univ. of P.R.,

0 ,

56 (1st Cir. 2006); see Perez-Acevedo v . Rivero-Cubano,

6 , 30 (1st Cir. 2008). Thus, “to determine whether due process

requirements apply in the first place, we must look . . . to the

nature of the interest at stake.” Bd. of Regents v . Roth,

6 4 , 570-71 (1972). If the plaintiff adequately alleges a

protected interest, “the question remains what process is due.”

Morrissey v . Brewer,

7 1 , 481 (1972).

Defina contends that he had a protected property interest

in his continued employment with the HPD, which was established

6 by New Hampshire Revised Statutes Annotated § 105-C:4. Section

105-C:4 provides:

It shall be the duty of the police commissioners to appoint such police personnel, including police officers, staff, constables and superior officers, as they deem necessary and to fix such persons’ compensation. The commissioners shall make and enforce all rules necessary for the operation of the police force in the manner most beneficial to the public interest. The commissioners may at any time remove police personnel for just cause and after a hearing satisfying the requirements of due process, which cause shall be specified in an order of removal except that special police officers appointed and designated as such shall serve at the pleasure of the commission and may be removed for other than just cause.

Agrafiotis does not address whether the statute created a

constitutionally protected property interest for Defina o r , if

it did, whether Defina was denied adequate due process. Rather,

he argues that the claim against him fails because he is not a

police commissioner, and does not have any authority to remove

police personnel under the statute. Defina concedes that

Agrafiotis did not have a statutory responsibility to provide

him with due process but argues that Agrafiotis was generally

involved in Defina’s termination and misused his public

authority generally. Defina contends that these factual

allegations are sufficient to survive a motion to dismiss on his

7 due process claim.

Assuming without deciding that Section 104-C:4 establishes

a constitutionally protected property interest in employment

that requires due process before an officer can be terminated,

Defina has failed to allege facts supporting a claim that

Agrafiotis terminated him. To adequately allege that Agrafiotis

deprived him of his due process rights, Defina must allege facts

that “show ‘that [Agrafiotis’s] conduct was the cause in fact of

the alleged deprivation.’” Gagliardi v . Sullivan,

0 1 ,

306 (1st Cir. 2008) (quoting Rodríguez-Cirilo v . García,

0 , 52 (1st Cir. 1997)). Thus, Defina must allege facts to

show that Agrafiotis “was personally responsible for the

deprivation of a constitutional right.” Johnson v . Snyder,

(7th Cir. 2006) (internal quotation marks and

citation omitted); see also Al-Jundi v . Estate of Rockefeller,

(2d Cir. 1989).

Here, Section 104-C:4 applies to police commissioners, not

police chiefs such as Agrafiotis. Although Defina contends that

Agrafiotis’s conduct contributed to his termination, he does not

allege facts that suggest that Agrafiotis had the authority to

terminate his employment, influenced the Commission’s decision

8 to terminate his employment, or was in any way involved in the

denial of his right to a hearing. See Gagliardi,

(“[N]either Mayor Sullivan nor any other Lawrence official

was responsible for the decision to decertify the Board, and

they accordingly had no duty to provide Gagliardi with notice or

an opportunity to be heard.”). Therefore, Defina has failed to

state a plausible claim for relief for a due process violation

against Agrafiotis.

B. Wrongful Termination

Defina alleges in Count V that defendants terminated him in

bad faith for performing acts that public policy would

encourage, which include his participation in the investigation

into Agrafiotis’s improper actions and his “unwillingness to

communicate misleading opinions to the Hooksett Banner.” Am.

Compl. ¶ 73 (Doc. N o . 2 1 ) . Agrafiotis argues that the wrongful

termination claim against him should be dismissed because he

cannot be found liable for wrongful termination, as he was not

Defina’s employer.

New Hampshire recognizes a claim for wrongful termination

when an employee alleges facts showing that “(1) his termination

was motivated by bad faith, retaliation or malice; and (2) that

9 he was terminated for performing an act that public policy would

encourage or for refusing to do something that public policy

would condemn.” MacKenzie v . Linehan,

(2009)

(citing Lacasse v . Spaulding Youth Ctr.,

(2006)); see also Short v . Sch. Admin. Unit N o . 1 6 ,

6 ,

84 (1992). “The public policy contravened by the wrongful

discharge can be based on statutory or nonstatutory policy.”

Cilley v . N.H. Ball Bearings, Inc.,

0 1 , 406 (1986)

(internal citation omitted).

Assuming without deciding that Defina has alleged facts to

support a claim for wrongful termination against the other

defendants, his claim against Agrafiotis must be dismissed.

Defina does not allege that Agrafiotis was his employer and, as

discussed above, Section 105-C:4 provides that the police

commissioners, and not Agrafiotis, have the authority to

terminate an officer.

Defina argues that under New Hampshire law a wrongful

termination claim is based in tort, not contract, and that

therefore the claim is not limited to employers. Defina is

correct that under New Hampshire law, wrongful termination is a

cause of action in tort, not contract. See Porter v . City of

10 Manchester,

0 , 39 (2004). Defina, however, does not

explain how the tort theory of liability underlying a wrongful

termination claim expands liability to non-employers. Nor has

he attempted to distinguish my prior decision in Bonczar v .

Suburban Propane Gas Corp., N o . 94-68-B, slip o p . at 17 (D.N.H.

Sept. 3 0 , 1996), in which I determined that a wrongful

termination claim cannot be maintained against a person who was

not the plaintiff’s employer.

Defina argues in the alternative that he can maintain a

wrongful termination claim against Agrafiotis because he

“alleges acts by [Agrafiotis] amounting to constructive

termination.” P l . O b j . 2-3, Doc. N o . 25-1. A constructive

termination “occurs when an employer renders an employee’s

working conditions so difficult and intolerable that a

reasonable person would feel forced to resign.” Karch v .

BayBank FSB,

(2002) (internal quotation marks

and citation omitted). Because Agrafiotis was not Defina’s

employer, he may not maintain a wrongful termination claim

against him, regardless of whether the claim is based on actual

termination or constructive termination. Accordingly, I grant

Agrafiotis’s motion to dismiss the wrongful termination claim.

11 IV. CONCLUSION

For the reasons stated above, I grant Agrafiotis’s motion

to dismiss Defina’s due process claim (Count II) and wrongful

termination claim (Count V ) (Doc. N o . 2 4 ) .

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

April 1 0 , 2012

cc: H . Jonathan Mayer, Esq. Eric G. Moskowitz, Esq. Charles P. Bauer, Esq. Daniel J. Mullen, Esq.

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