1 I denied the defendants’ motion for summary judgment

during a hearing on June 17, 2009. In this Memorandum of

Decision, I have consolidated my oral rulings in a single

document. Except where I have indicated otherwise, I have edited

my rulings only to address issues of grammar, punctuation,

citation format, and style.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Randal Fritz

v. Case No. 06-cv-469-PB

Kenneth Brown and Katharine Daly

MEMORANDUM OF DECISION1

The matter before me is a motion for summary judgment filed

by the defendants. In reviewing that motion, I construe the

evidence in the light most favorable to the plaintiff. I will

grant the motion only if, on the undisputed facts, the defendants

are entitled to judgment as a matter of law. 

I. ANALYSIS

The plaintiff has advanced a First Amendment claim. In

order to establish that claim, the plaintiff must demonstrate

that he was speaking as a citizen on a matter of public concern. 

Next, he must demonstrate that the government lacked an adequate

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justification for treating him differently from other members of

the general public. Finally, he must demonstrate that the

protected activity was a substantial and motivating factor in the

adverse employment decision. If all three elements of this claim

are established, the defendants may defeat the claim by

demonstrating that they would have taken the same action with

respect to the employee regardless of whether the employee had

engaged in a protected activity. Even if the plaintiff can

establish the First Amendment claim that he has made in this

case, the government may nevertheless be entitled to qualified

immunity, and accordingly, I am going to analyze the motion for

summary judgment by addressing each element of the plaintiff's

claim and then proceeding to consider whether the government has

a viable qualified immunity defense. I intend to address each

element of the claim separately and then to address the qualified

immunity defense. 

A. Speech as a Citizen on a Matter of Public Concern

The first issue that I have to address is whether the

plaintiff was speaking as a citizen on a matter of public concern

when he made the statements that he claims are entitled to

constitutional protection. In this case, the statements were

made in a lawsuit that the plaintiff filed, and that filing is a

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petition for redress of grievances that is entitled to protection

under the First Amendment. As I explained in my prior ruling in

Fritz II, those kinds of statements are entitled to

constitutional protection under the same standard as are other

statements by public employees, and therefore, those statements

are subject to analysis under the Garcetti standard. See

Garcetti v. Ceballos, 547 U.S. 410 (2006). 

The first element of the Garcetti standard is whether the

plaintiff was speaking as a citizen on a matter of public

concern. In determining whether an employee's speech addresses a

matter of public concern, I must consider the content, form, and

context of the statement as revealed by the record as a whole. 

Connick v. Myers, 461 U.S. 138, 147-48 (1983). However, “[w]here

a public employee speaks out on a topic which is clearly a

legitimate matter of inherent concern to the electorate, the

court may eschew further inquiry into the employee's motives as

revealed by the‘form and context’ of the expression.” O'Connor

v. Steeves, 994 F.2d 905, 913-14, (1st Cir. 1993). “Matters of

inherent concern include official malfeasance, abuse of office,

and neglect of duties.” Curran v. Cousins, 509 F.3d 36, 46 (1st

Cir. 2007). Speech regarding internal working conditions,

affecting only the speaker and co-workers, and not implicating

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the ability of an employer or personnel to carry out their

responsibility to the public is not speech of inherent public

concern. See Rosado-Quinones v. Toledo, 528 F.3d 1, 5 (1st Cir.

2008). Where the speech is not clearly of inherent public

concern, a court may consider whether the speech is related to

the employer's broader policies. See Davignon v. Hodgson, 524

F.3d 91, 100-03 (1st Cir. 2008). Each instance of speech must be

analyzed separately to determine whether it was protected. See

Curran, 509 F.3d at 48; Hennessy v. City of Melrose, 194 F.3d

237, 246-47 (1st Cir. 1999). 

In my order on the motion to dismiss in Fritz II, I

determined that Fritz had pled sufficient facts to support his

assertion that he was acting as a citizen on a matter of public

concern when he filed Fritz I because the lawsuit plainly

included allegations that directly implicated topics of inherent

concern to the community--namely, official misconduct by a public

official. I now seek to clarify my ruling on the motion to

dismiss. 

Each of Fritz's allegations within the Fritz I complaint

must be analyzed separately. Not all of Fritz's speech within

the lawsuit is protected by the First Amendment. Rather, only

Fritz's allegations concerning favoritism, improper ex parte

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communications, and corruption among his superiors at the Human

Rights Commission address matters of inherent public concern.

Unlike the plaintiff's allegations of personal animosity in

Rosado-Quinones, the allegations in the Fritz I complaint

implicate the ability of CHR officials to carry out their duty to

the public. See 528 F.3d at 5. The remaining speech in Fritz I

does not concern these matters of inherent public interest. 

The October 4 letter from a CHR claimant's file, which Fritz

attached as an exhibit to the Fritz I complaint, contained

confidential information and fails the first prong of the

Garcetti test because it was not an issue of public concern.

Maintaining the confidentiality of the claimant in the underlying

case by redacting any identifying information would in no way

have undermined Fritz's allegation against the defendants. 

Drawing all reasonable inferences in favor of Fritz, certain of

his speech in the Fritz I complaint was spoken as a citizen on a

matter of public concern. However, the attachment of the October

4 letter and inclusion of confidential information in the Fritz I

complaint was not speech made as a citizen on a matter of public

concern, nor was Fritz's opposition to the motion to seal the

October 4 letter. So I have clarified my prior ruling on what I

believe was then a motion to dismiss in Fritz II. 

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B. Whether Defendants had an Adequate Justification

If the facts show that Fritz's speech and acts were as a

citizen involving a matter of public concern, I must next

consider

whether the relevant government entity had an adequate

justification for treating the employee differently

from any other member of the general public. This

consideration reflects the importance of the

relationship between the speaker’s expressions and

employment. A government entity has broader discretion

to restrict speech when it acts in its role as

employer, but the restrictions it imposes must be

directed at speech that has some potential to affect

the entity's operations.

Garcetti, 547 U.S. at 418 (internal citation omitted); see also

Curran, 509 F.3d at 45. This evaluation is a balancing test. On

one side we have the First Amendment interests of the employee,

which are entitled to greater weight when the employee is acting

to expose government corruption, and on the other side we have

the government's legitimate interest in maintaining the effective

of functioning of the CHR. See Guilloty Perez v. Pierluisi, 339

F.3d 43, 53 (1st Cir. 2003). An “employer need not show an

actual adverse effect in order to terminate an employee.” 

Curran, 509 F.3d at 49. Rather, an employer need only show that

the speech in question is “speech that has some potential to

affect” the public employer's operations. Id. “Significant

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2 I have omitted the three preceding sentences from the

hearing transcript because they are confusing and do not

contribute to my analysis.

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weight is given to the public employer's ‘reasonable predictions

of disruption, even when the speech involved is on a matter of

public concern.’” Id. (quoting Waters v. Churchill, 511 U.S.

661, 673 (1994)). 

I'm speaking now only about the October 4 letter, the

attachment of it to the complaint in Fritz I and the plaintiff's

effort to resist the state's attempt to have the letter sealed.2

I have already ruled that the attachment of the October letter

and the plaintiff's effort to resist sealing of that letter do

not qualify as speech undertaken as a citizen on a matter of

public concern. Even if, however, the attachment of the letter

and efforts to resist it did qualify as speech as a citizen on a

matter of public concern, the speech would not be protected by

the First Amendment because the defendants had an adequate

justification for imposing restrictions on the speech in order to

prevent the release of confidential information. The importance

of maintaining CHR's claimants’ confidentiality is established by

statute, rules, and policy. See N.H. Rev. Stat. Ann. § 354-A:21;

see also Defs.’ Exh. 13, Human Rights Commission Regulation

208.04; Defs.’ Exh. 14, New Hampshire Human Rights Commission

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ethics policy; Clark v. Equal Employment Opportunity Comm’n, 42

M.S.P.R. 467, 476 (1989) (“[I]f the agency were unable to ensure

that its investigative records would not be released to the

public, it would have a serious impact on its ability to perform

its assigned functions.”). CHR could have reasonably believed

that there had been an actual harmful effect of Fritz's

disclosure of the October 4 letter because it disclosed

confidential information. Further, Fritz's lawsuit would not

have been undermined in any way had he merely attached the letter

in a redacted form that hid the claimant's identity. The

defendants have highlighted a clear countervailing government

interest in protecting claimant confidentiality so as to ensure

the smooth functioning of CHR. In this case the government's

interest in maintaining confidentiality outweighs Fritz's

interest in revealing the claimant's identity. Accordingly, the

attachment of the October 4 letter to Fritz I and efforts to

resist it being sealed do not qualify as speech protected by the

First Amendment. 

C. Improper Motivation

The next issue I must decide is whether Fritz has produced

sufficient evidence to permit a finding that his participation in

the protected activity was a substantial and motivating factor

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behind the adverse employment action. See Mt. Healthy City

School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977);

Guilloty Perez, 339 F.3d at 55. If Fritz makes an adequate

showing on this point, the burden of persuasion shifts to the

defendants who must then counter by proving by a preponderance of

the evidence that the defendants would have taken the same action

against Fritz “even in the absence of the protected conduct.” 

Mt. Healthy, 429 U.S. at 287; see also Curran, 509 F.3d at 45;

Guilloty Perez, 339 F.3d at 51, 56; Collins v. Nuzzo, 244 F.3d

246, 252 (1st Cir. 2001) (noting that statements by city

officials expressing irritation over being sued were not

sufficient to show retaliation). 

Fritz need not produce direct evidence of the defendants’

motivation for terminating him or otherwise retaliating against

him in order to satisfy his burden of proof and may rely on

circumstantial evidence, but mere speculation that the protected

activity was a motivating cause is not sufficient and Fritz must

show some facts linking the adverse action to his protected

activity. See Guilloty Perez, 339 F.3d at 55-56. “This question

of motivation, though usually one for the factfinder, can be

resolved by the court on a summary judgment . . . motion” in

favor of the defendant if the plaintiff's evidentiary showing is

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insufficient or if the evidence compels the conclusion that the

plaintiff would have suffered the adverse employment action in

any event for nondiscriminatory reasons. Id. at 56.

Fritz has adduced sufficient evidence of causation to shift

the burden to the defendants. Although the defendants have taken

pains to emphasize that the disclosure of confidential

information through the attachments of the unredacted October 4

letter, not the allegations in Fritz I, was the cause for

termination, a reasonable factfinder could find from

circumstantial evidence that the allegations in Fritz I were a

substantial or motivating factor in his dismissal. 

The temporal proximity between the filing of Fritz I and the

launch of the investigation that led to Fritz's eventual

termination supports Fritz's assertion that he was retaliated

against for filing his initial lawsuit. Fritz filed the

complaint in Fritz I on May 25, 2006. Daly and Brown received

the complaint on or about May 30, 2006, and at the June 1, 2006

CHR meeting the Commissioners launched the investigation of

Fritz's conduct that led to his eventual termination. Defendants

note that the June 1 meeting had been previously scheduled and

the investigation into Fritz's conduct dovetailed into the

conclusion of the Commissioners’ investigation finding at the

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same meeting that Fritz's allegations against Daly were

unfounded. But the timing of the decision to investigate Fritz's

conduct still serves as circumstantial evidence to support

Fritz's claim. 

In addition, when viewing the evidence in the light most

favorable to Fritz, the fact that the draft suspension with pay

submitted to the state Director of Personnel on June 8, 2006 also

included as item (d) the request to investigate Fritz's motives

for making false allegations against Daly creates the impression

that Fritz's allegations may have been a substantial and

motivating factor in the alleged adverse employment action.

Further, although the defendants and Patterson assert that the

Fritz I complaint was discussed and reviewed only to determine

whether confidential information had been improperly disclosed by

Fritz in the lawsuit, the fact that the complaint was cited as

evidence for Fritz's termination in the November 10 Notice of

Contemplation of Dismissal and that the lawsuit was continually

raised in discussions would allow a factfinder to draw the

inference that Fritz's allegations may have been a substantial

and motivating factor in his termination. 

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While the involvement of an independent advisor strengthens

the defendants’ case and the evidence is strong that it was other

of Fritz's actions which caused his dismissal, the court cannot

say that no reasonable factfinder could have concluded that there

was a causal relationship between the filing of Fritz I and the

adverse employment actions against Fritz. Further, even though

the defendants’ ostensible grounds for Fritz's discharge--

attachment of confidential documents and insubordination--are

appropriate grounds for termination of an employee, it is not

clear that these grounds were independent grounds and that the

adverse employment actions would have been taken against Fritz

regardless of his allegations of corruption and malfeasance in

Fritz I. I conclude that there is a genuine factual dispute

regarding whether Fritz's allegations of corruption and

malfeasance in Fritz I were a substantial and motivating factor

in the adverse employment action taken against Fritz, and a jury

would not be compelled to find that Fritz would have suffered the

adverse employment action in any event for nondiscriminatory

reasons. Accordingly, I deny defendants’ motion for summary

judgment on this issue. 

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D. Qualified Immunity

The last issue that I address is the question of qualified

immunity. Qualified immunity is intended to shield public

officials “from civil damages liability as long as their actions

could reasonably have been thought consistent with the rights

they are alleged to have violated.” Anderson v. Creighton, 483

U.S. 635, 638 (1987). In cases where a plaintiff's First

Amendment rights collide with the legal doctrine of qualified

immunity, proper analysis begins with the question of whether the

plaintiff’s allegations set forth a violation of the First

Amendment. See Fabiano v. Hopkins, 352 F.3d 444, 453 (1st Cir.

2003). If a First Amendment violation has been established, the

court must then consider whether the constitutional right at

issue was clearly established at the time of the putative

violation. Mihos v. Swift, 358 F.3d 91, 102 (1st Cir. 2004). 

Finally, the court must consider “whether a similarly situated

reasonable official would have understood that the challenged

action violated the constitutional right at issue.” Id. 

Defendants argue that they are entitled to qualified

immunity because there has been no constitutional violation.

According to Fritz, however, the defendants’ purported reasons

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for firing him -- confidentiality and insubordination -- were

merely pretext, and they actually fired him as retaliation for

filing his initial lawsuit. If true, Fritz's allegations

establish a constitutional violation. The First Circuit has

determined that a “public employee's right to petition the

government with respect to matters of public concern has been

clearly established since Connick.” Boyle v. Burke, 925 F.2d

497, 505 (1st Cir. 1991). Thus, I conclude that a reasonable

official would have known that terminating a public employee for

filing a First Amendment retaliation law suit alleging matters of

public concern violated his clearly established right to do so. 

Defendants also argue that they are entitled to qualified

immunity because a similarly situated reasonable official would

not have known that firing Fritz for disclosing a charging

party's confidential information in a prior lawsuit and gross

insubordination violated his First Amendment right to petition.

See Wagner v. City of Holyoke, 404 F.3d 504, 508-09 (1st Cir.

2005). The defendants cite Philip v. Cronin, 537 F.3d 26 (1st

Cir. 2008), in which the First Circuit held in a public employee

First Amendment case that, even if a constitutional right is

clearly established, the defendant was entitled to qualified

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3 I have omitted the last several sentence of this paragraph

as they appear in the hearing transcript because they are

redundant.

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immunity because he could have reasonably believed, even if

mistaken, that his conduct did not violate the First Amendment. 

In Cronin, the evidence was that the employee had been terminated

as a result of a group decision, and the First Circuit determined

that one could reasonably believe that this collective decision

did not violate the plaintiff's First Amendment rights.3

The case law that the defendants cite is difficult to

reconcile with other First Circuit case law on the subject of

qualified immunity. Despite the general rule that the subjective

intent of government actors plays no part in qualified immunity

analysis, in the context of employment cases involving the First

Amendment right to be free from political discrimination, the

First Circuit has determined that, where an officer's subjective

motivation is an essential element of the constitutional

violation itself, it cannot be divorced from the qualified

immunity inquiry. See Martinez-Velez v. Rey-Hernandez, 506 F.3d

32, 46 (1st Cir. 2007) (noting that in political discrimination

cases where wrongful motive is an element of the claim, the case

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law has regularly rejected the objective-reasonableness argument

in the qualified immunity context); Rivera-Torres v. Ortiz Velez,

341 F.3d 86 (1st Cir. 2003) (holding that an employee's First

Amendment right to be free from political discrimination is

violated when the employer's adverse employment decision is

motivated by the employee's political speech, and thus, the

officer's subjective motive cannot be divorced from the qualified

immunity inquiry in a political discrimination case). 

In the present case, whether Fritz's speech was a

substantial and motivating factor in his termination is an

essential element of his claim that his First Amendment rights

were violated. Accordingly, the defendants’ subjective motives

should likely be considered when determining whether the

defendants should be granted qualified immunity. Because a

factual question remains regarding whether Fritz's protected

speech was a motivating factor in the decision to terminate him,

immunity cannot be awarded, and I deny summary judgment to the

defendants on this ground. In doing so, I acknowledge that it is

possible to interpret Cronin to stand for the broad principle

that where a decision to terminate a public employee is a group

decision, and a reasonable person could have understood the

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decision to be lawful as made by the group, individual decision

makers who are sued are entitled to qualified immunity even if

the evidence is overwhelming that they acted with a subjective

intent to terminate for an improper purpose. Such a holding

would be a clear extension of Cronin. I can't discern from the

opinion, however, whether the extension is warranted or not. It

is also possible that Cronin may have some other interpretation

that I have just misunderstood. I have great respect for the

First Circuit and am trying to faithfully follow its precedents. 

In this case, because of the relatively recent and substantial

body of case law suggesting that constitutional violations

requiring proof of subjective intent such as this one should not

be analyzed ordinarily using the objective formulation of

qualified immunity, and because I cannot discern the limiting

principle in Cronin with sufficient clarity to reliably

understand the decision, I have ruled that qualified immunity

should not be awarded to the defendants in this case. 

I recognize, however, that it is possible that I have

misinterpreted Cronin, and it is possible that based on

undisputed facts, the defendants could be entitled to qualified

immunity here. In my judgment, the undisputed facts construed in

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the light most favorable to the nonmoving party would permit a

conclusion on the part of a reasonable decision maker that this

decision was being made for an entirely lawful reason. Where I

disagree with the defendants is that I think that the underlying

facts also permit a conclusion that protected speech was a

motivating factor in the decision to terminate, and the plaintiff

has just enough evidence to allow a reasonable juror to conclude

that the defendants cannot prove by a preponderance of the

evidence that they would have taken the same action in any event. 

In my view, under these circumstances based on the interpretation

I've given to Cronin and the other body of First Circuit case law

that addresses this issue, I do not believe that it is

appropriate to grant qualified immunity. But I invite the

defendants to appeal. I recognize that I may be mistaken in my

interpretation, and it is entirely possible based on undisputed

facts that the defendants may be entitled to qualified immunity

here, and if so, I would of course faithfully apply any guidance

I get from the circuit. 

II. CONCLUSION

I deny the motion for summary judgment (Doc. No. 98) for the

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reasons I've stated. To the extent that the defendants have

sought to reactivate the motion to strike (Doc No. 56), I

determine that motion is moot because I have not relied on any of

the materials that the defendants are seeking to strike in

reaching this decision.

/s/Paul Barbadoro 

Paul Barbadoro

United States District Judge

June 18, 2009

cc: Pierre Rumpf, Esq.

Paula Werme, Esq.

Nancy J. Smith, Esq.

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