Hubacz v. Protzman

• Decision Date: 04 April 2013
• Docket Number: Case no. 2:12-cv-39
• Parties: ADAM HUBACZ Plaintiff, v. TODD PROTZMAN, WILLIAM SHEPELUK, JOBY FECCIA, THOMAS KELLY, the VILLAGE of WATERBURY, VERMONT, and the WATERBURY POLICE DEPARTMENT Defendants.
• Court: U.S. District Court — District of Vermont

ADAM HUBACZ Plaintiff,

v. TODD PROTZMAN, WILLIAM SHEPELUK,JOBY FECCIA, THOMAS KELLY,the VILLAGE of WATERBURY, VERMONT,and the WATERBURY POLICE DEPARTMENT Defendants.

Case no. 2:12-cv-39

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

Dated: April 4, 2013

Opinion and Order

This action stems from Plaintiff Adam Hubacz's employment and termination as a police officer for the Village of Waterbury Police Department. Hubacz's First Amended Complaint ("FAC" or the "Complaint") raises a total of thirteen counts against the Village of Waterbury, Vermont (the "Village" or "Waterbury"); the Waterbury Police Department ("WPD"); Vermont State Police Detective Sergeant Todd Protzman; State's Attorney for Washington County, Thomas Kelly; Waterbury Village Manager, William Shepeluk; and Waterbury Police Chief, Joby Feccia. The Village, the WPD, Chief Feccia, and Shepeluk (collectively, the "Municipal Defendants") filed a joint motion to dismiss all of the counts pertaining to them; however, they have retracted that motion with respect to Counts V, VIII, and XII in their replymemorandum. See ECF No. 36 at *4-7. Defendants Protzman and Kelly have also filed a joint motion to dismiss the counts pertaining to them.

Pursuant to the Municipal Defendants' partial withdrawal of their motion Counts VIII and X against Waterbury and Count XII against Feccia remain. The Court grants the Municipal Defendants' motion to dismiss except with respect to Count V (tortious interference) against Feccia and Shepeluk and Count VI (defamation) against Shepeluk. The Court also grants Protzman and Kelly's motion to dismiss in full.

BACKGROUND

The following facts are taken from the Complaint. Officer Hubacz joined the WPD in February 2009 and became a full-time officer in May 2009. FAC ¶ 45. For the duration of his time at the WPD, Hubacz reported to Chief Feccia. In 2009, Hubacz received a full-tuition scholarship to attend the National Forensics Academy in Tennessee; however Feccia and Waterbury Village Manager William Shepeluk refused to grant him the ten weeks of unpaid leave he needed to attend. Id. ¶ 51. After being denied that opportunity, Hubacz also became uncomfortable working in the Department because of the behavior of some of its officers, including Feccia. Hubacz learned of several instances in which WPD officers engaged in inappropriate conduct, such as stealing evidence from a liquor control investigation andmaintaining improper workplace relationships. Id. ¶¶ 54-56, 62-63.

In August 2010, Hubacz applied to the Montpelier Police Department ("MPD") and interviewed with the head of that force, Chief Tony Facos. Id. ¶ 67. During the interview, Hubacz explained that he had serious concerns about the integrity of employees at the WPD. Id. ¶ 71. Though Facos mentioned that there was a tacit agreement among Vermont police chiefs not to hire officers from other departments who had been on the job less than three years, Facos nonetheless made Hubacz a tentative offer as an officer at the MPD pending a background check and physical fitness test. Id. ¶¶ 72, 75. Less than two weeks later, Facos called Hubacz to rescind the offer and, during a later conversation in person, acknowledged that Feccia had reminded him of the police chiefs' agreement not to "steal" new hires. FAC ¶ 93. Hubacz also alleges that Shepeluk called his counterpart in Montpelier, the City Manager, to stop Hubacz from securing a position there. Id. ¶¶ 87-89.

In December 2010 or January 2011, Hubacz met with Thomas Kelly, the State's Attorney for Washington County, Vermont. Id. ¶ 104. Hubacz described his issues with the WPD as well as his failed attempt to move to the MPD. Kelly advised Hubacz to leave the WPD but took no further action. In January or February 2011, Hubacz met with Shepeluk twice to discuss hisproblems with the WPD, but Shepeluk also took no action. Id. ¶¶ 107, 109. In early 2011, Hubacz set out to organize the Waterbury Police Patrolmen's Union, Local 402, which certified with the New England Police Benevolent Association, Inc. Id. ¶ 113. The union's goals were to establish uniformity in the treatment of officers by their commanders, standards for physical fitness and officer discipline, and the consistency and uniformity of raises within the Department. Id. ¶ 117.

In May 2011, Hubacz learned of possible budget cuts at the WPD and applied for jobs with the Saint Albans Police Department ("SAPD") and the City of South Burlington Police Department ("SBPD"). FAC ¶¶ 117, 120. Applicants to the SAPD must take a polygraph examination to be considered, and on April 19, 2011, Hubacz traveled to the Williston barracks of the Vermont State Police ("VSP") to receive the exam. Id. ¶ 128. VSP Detective Sergeant Todd Protzman, an authorized polygraph examiner, was assigned to administer Hubacz's examination. Id. ¶ 129. Protzman began by conducting a pre-test interview to gain some preliminary information to use as control questions for the polygraph test. Protzman explained to Hubacz that he could refuse to answer any questions but that his refusal to do so would prevent the examination from proceeding. Id. ¶ 145. Protzman further instructed Hubacz that "I don't know" and "I don't remember" were unacceptable responses and advised him thatadmitting to all illegal activity and erring on the side of disclosure would help him pass his test. Id. ¶¶ 153, 155.

Protzman proceeded to ask Hubacz a series of questions covering a wide range of topics, including Hubacz's marital status, past psychological treatment, use of illegal drugs, sexual misconduct¹ , mental health, association with people who have been convicted of crimes or who advocate the overthrow of any governments, and his financial status. Id. ¶ 140. After three and a half hours of questioning, Protzman stopped for a break, during which he contacted the SAPD. FAC ¶ 162. Almost an hour later, Protzman returned and informed Hubacz that he had spoken with SAPD Chief Gary Taylor who had directed him to discontinue the interview without conducting a polygraph examination. Id. ¶ 167. When Hubacz asked whether he had failed, Protzman explained, "No, it's not a 'fail.' It's like the test never took place, and it didn't . . . ." Id. ¶ 169.

After the interview, Protzman prepared a document entitled "Confidential Pre-Employment Polygraph Examination Report" (the "Report") and sent it to Taylor and South Burlington Police Chief Trevor Whipple. Id. ¶ 179. Protzman did not share theReport with Hubacz. Id. ¶ 180. The Report included the following statements:

The applicant advised that in October of 2010 he stole several police uniform items when left the North Brookfield Police Department. He said he kept items including a hat, a badge and a short-sleeve shirt and he said they were used items that part-time officers were permitted to use on duty.

* * * *

The applicant advised that in about February of 2011 he submitted a fraudulent insurance claim to his insurance company, Liberty Mutual Insurance Company. He said he had to have his vehicle towed and the tow operator wrote the bill for $10.00 more than the actual charge. The applicant said he knowingly submitted the inflated bill to his insurance company and he subsequently kept the extra $10.00.

* * * *

The applicant advised that in the past he occasionally represented himself to be a police officer when he had no legal right to do so. He said he did this several times to avoid having to pay a cover charge at clubs. He said he also did this to obtain a hotel discount. He said he also did this in high school when interacting with drug users, to see their reaction.

* * * *

The applicant advised that in 2009 while attending the Vermont Police Academy he cheated on a Motor Vehicle test. He said he failed the test a couple of times and then cheated during a re-test, by asking another student for information during the test.

Id. ¶ 182. Both the SAPD and SBPD stopped considering Hubacz's application when learning of this information.² FAC ¶¶ 175, 188. On information and belief, Hubacz claims that Feccia obtained a copy of the Report from Protzman as well as a DVD recording of the interview, forwarded a copy of the Report to Kelly, and forwarded copies of both to Shepeluk. Id. ¶¶ 195-96, 199-200.

On Friday, June 10, 2011, Hubacz received notice of a potential disciplinary action against him and on June 15, 2011 was notified by a union representative that the action was related to his pre-polygraph interview. Id. ¶¶ 202-04. The Village held a disciplinary hearing on June 20, 2011. Id. ¶ 205. Even though he had yet to receive a copy of the Report, Hubacz addressed the statements he made in the pre-polygraph interview. Id. ¶ 211. Hubacz explained that he sometimes showed his badge to get reduced rates on hotels or to enter clubs for free. Id. ¶ 214. He also explained that he had notified the chief of the North Brookfield Massachusetts Police Department about the uniforms he had taken and that the chief had told him not to worry about it. FAC ¶ 216. Hubacz noted that the $10 overpayment by the insurance company was due to a misunderstanding between him and a tow truck operator and that he had returned the money to the insurance company. Id. ¶ 216.Finally, Hubacz declared that he had not cheated on an exam at the Vermont Police Academy and that any statement to the contrary during the pre-polygraph interview was mistaken and a result of his faulty recollection. Id. ¶ 219.

The hearing was continued to the first week of August 2011, whereupon Shepeluk informed Hubacz that the alleged uniform theft was not an issue, that they would not be prosecuting him for the $10 overpayment from the insurance company, and that an in-depth investigation—including calls to Hubacz's former classmates at the Academy—revealed no evidence of the alleged cheating. Id. ¶ 245. However, Shepeluk did inform Hubacz that he and Feccia wanted to punish Hubacz for damaging the reputations of other WPD officers and employees...