Carney v. Town of Weare
| Decision Date | 21 February 2017 |
| Docket Number | Civil No. 15-cv-291-LM |
| Citation | 2017 DNH 031 |
| Parties | James J. Carney v. Town of Weare, et al. |
| Court | U.S. District Court — District of New Hampshire |
James J. Carney brings suit against the Town of Weare ("the Town"), its Board of Selectman, its Town Administrator, several of its police officers, and its legal counsel, Mark Broth, alleging state and federal claims arising from his employment as an officer in the Weare Police Department. The defendants move for judgment on the pleadings on several of Carney's claims. Carney objects.
In assessing a motion for judgment on the pleadings, the court construes "all well-pleaded facts in the light most favorable to the non-moving party and draw[s] all reasonable inferences in that party's favor." Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d 134, 140 (1st Cir. 2016). Judgment on the pleadings is appropriate if "the complaint fails to state facts sufficient to establish a claim to relief that is plausible on its face." Id. The standard "is the same as that for a motion to dismiss under Rule 12(b)(6)." Frappier v. Countrywide Home Loans, Inc., 750 F.3d 91, 96 (1st Cir. 2014), cert. denied, 135 S. Ct. 179 (2014).
Carney served on the Weare Police Department ("WPD") for over twenty years, achieving the rank of Lieutenant in 2007. In the summer of 2012, Carney was accused of making harassing telephone calls to Louis Chatel, the plaintiff in a lawsuit against Carney and the Town. Around the same time, Broth, counsel for Carney and the Town in the Chatel case, informed Carney that he was withdrawing as his counsel but would continue representing the Town.
Later in the fall, the WPD hired an attorney to investigate allegations that Carney had vandalized department property. Broth advised the attorney about the procedures that he should use while conducting his investigation. Carney requested that the subject of the investigation be expanded to include the harassing calls allegation, but Broth and the Town rejected that request.
In December of 2012, Broth called Carney and questioned him about allegations that Carney disclosed WPD personnelinformation to outside agencies without proper authorization. Carney alleges that this telephone call was part of an ongoing internal affairs investigation that Broth was conducting against him.
In January 2013, a WPD officer filed a sexual harassment complaint concerning an incident in which several officers, including Kenneth Cox, Frank Hebert, Kimberly McSweeney,2 and Brandon Montplaisir, spread rumors about an extramarital affair between Carney and a female Town employee. Cox, Montplaisir, and Hebert used "rude . . . and lewd" terminology to describe the alleged affair. Carney met with WPD Chief, Gregory Begin, and requested an internal investigation concerning the incident.
On March 1, Broth attended a meeting with Thomas Clow, a member of the Board of Selectman; Naomi Bolton, the Town's Town Administrator; and several WPD employees including Cox, Hebert, McSweeney, Montplaisir, Nicholas Nadeau, and Shelia Savaria ("the Police Defendants"). During that meeting, the Police Defendants raised numerous allegations against Carney. Carney contends that these allegations were false and were the result of a conspiracy among the Police Defendants to cause Carney's termination from the WPD. Carney further alleges that Broth knew that these allegations conflicted with positive testimonyabout Carney that Cox, Hebert, and Montplaisir gave in the Chatel case.
Three days later, the Board of Selectman voted to place Carney on administrative leave. Based on orders from Broth and the Town, Begin wrote a memorandum to WPD employees announcing the decision and instructing them not to have any contact with Carney. Carney also received a letter confirming that he was on administrative leave and prohibiting him from contacting any WPD employee except Begin. While on leave, the WPD paid Carney "only 40% of his usual salary." Doc. no. 21 at ¶ 233.
On March 28, Broth hired attorney John Vinson to conduct a formal investigation into the allegations concerning Carney. Those allegations included, among other things, claims that Carney threatened to harm WPD employees and a confidential informant, intimidated subordinates, coerced support from coworkers for his appointment to captain, maintained an inappropriate intimate relationship with a WPD employee, and shared WPD personnel information with subordinates and third parties. Broth placed his advice to Vinson about how to conduct the investigation in a letter, which, Carney contends, contained legally erroneous instructions.
Carney alleges that the investigation was procedurally flawed and was a delay tactic on the part of Broth and the Town "to force Carney out of the workforce." By July 1, 2013, theWPD had not notified Carney about the results of the investigation. At that time, Carney, who was still on administrative leave, resigned from the WPD. Carney alleges that the stress and uncertainty of the investigation forced him to resign. Five months later, Carney filed a complaint with the New Hampshire Commission for Human Rights alleging that he was sexually harassed and that Weare and the WPD, through launching an internal investigation and placing him on administrative leave, had illegally retaliated against him.
Carney then brought this suit against the following defendants: the Town; Broth; the Police Defendants; Bolton; and the members of the Weare Board of Selectmen, Richard W. Butt, Keith Lacasse, John C. Lawton, James Leary, and Clow.3 Carney's complaint alleges a variety of claims against these defendants under common law, federal civil rights laws, and New Hampshire Statutes, including claims for:
The Town, Broth, the Police Defendants, and the Individual Town Defendants each move separately for judgment on the pleadings on several of Carney's claims. For clarity's sake, the court will address the motions for the Town, the PoliceDefendants, and the Individual Town Defendants (doc nos. 35, 36, 37), all of which raise overlapping issues, separately from Broth's motion (doc. no. 31).
Although the motions for the Town, the Police Defendants, and the Individual Town Defendants differ in substance, the arguments therein fall into the following general categories:
In response to the Police Defendants' motion, Carney filed an objection on August 1, 2016. See doc. no. 40. Because that objection attached an exhibit containing personal identifiers, Carney refiled his objection with a redacted exhibit on August 6 (see doc. no. 46). The objection that Carney filed, however, was substantively different from the first objection that Carney filed five days earlier. Carney contends that this was because that document "was not the final product, but the draft which was mistakenly filed." Doc. no. 60. Carney's counsel "refiled" the objection without notifying the court or the Police Defendants' counsel that he was filing a substantively different objection. Carney's decision to file a different objection and the accompanying omission of that fact is an end around the applicable deadlines for responding to dispositive motions. Accordingly, the court will only consider material in Document no. 46 to the extent that material was included in Document no. 40.
The Town moves for judgment on the pleadings on Carney's claim for wrongful termination, arguing that the claim is barred by the doctrine of res judicata. In support, the Town attaches a decision in an arbitration between AFSCME, Carney's...
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