UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Randal Fritz

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

Kenneth Brown and Katharine Daly

O R D E R

On June 17, 2009 I issued an oral order denying the

defendants’ motion for summary judgment. (Tr., Doc. No. 106; Mem.

of Decision, Doc. No. 104). The defendants now seek

reconsideration of my decision under Federal Rule of Civil

Procedure 59(e) or United States District Court for the District

of New Hampshire Local Rule 7.2. 

To obtain relief under Rule 59(e), “the movant must

demonstrate either that newly discovered evidence (not previously

available) has come to light or that the . . . court committed a

manifest error of law.” Palmer v. Champion Mortgage, 465 F.3d

24, 30 (1st Cir. 2006). The defendants contend that I erred in

two ways. First, the defendants argue that the court should

reconsider its determination of whether any alleged improper

motive could be a substantial and motivating factor in the 

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defendants’ decision to terminate Fritz because the court erred

as a matter of fact and law in determining that the defendants

could have recused themselves from the decision to terminate

Fritz. Second, the defendants argue that the court erred as a

matter of law in denying qualified immunity by relying on cases

taken from the political discrimination arena that are not

factually similar to the current matter. I address each argument

in turn.

A. Recusal from the Decision-Making Process

The defendants contend that the court erred as a matter of

fact and law by asserting that they could have recused themselves

from the decision to terminate Fritz because under state law,

only the appointing authority can make the ultimate decision

regarding hiring or firing an employee. See N.H. Rev. Stat. Ann.

§§ 21-I:42, 21-I:43; N.H. Code Admin. R. Ann., Per 102.07; Per

602 et seq.; Per 603 et seq.; Per 1002 et seq. According to the

defendants, because they were required to ultimately make the

decision regarding Fritz’s employment, their request for and

reliance on the outside advice of Jennifer Patterson was

functionally equivalent to having recused themselves from the

decision-making process. Thus, defendants contend that the court

should reconsider its determination that any alleged improper

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 Defendants also assert that the court should find that, 1

even if Fritz could be said to have carried his burden of showing

that the alleged improper motive was a substantial and motivating

factor in his termination, the defendants have successfully

rebutted that showing by establishing that Fritz would have been

terminated anyway for legitimate reasons. I recognize that there

is strong evidence in the record to support defendants’

contention that they would have terminated Fritz for legitimate

reasons regardless of whether Fritz had engaged in other

protected conduct. Nevertheless, I rejected defendants’ argument

because a reasonable fact finder might conclude otherwise from

the evidence in the record. I decline to reconsider this

determination.

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motive could have been a substantial or motivating cause of

Fritz’s termination.1

During the June 17 hearing, without the benefit of briefing

on the issue, I expressed the opinion that the defendants could

have recused themselves from the decision to terminate Fritz. 

(Tr. at 67). I, however, also concluded that whether the

defendants could have recused themselves from the decision-making

process was “irrelevant.” (Id.). My ruling denying summary

judgment was in no way based on my assessment of defendants’

ability to recuse themselves from the decision-making process. 

B. Qualified Immunity Cases

The defendants next argue that the court erred as a matter

of law in relying on cases taken from the political

discrimination arena that are not factually similar to the

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 The defendants also assert that the court’s error in 2

relying on cases in the political discrimination arena is

magnified by recent Supreme Court and First Circuit qualified

immunity case law which allows courts to consider whether an

official could reasonably have believed their conduct lawful

without first analyzing whether the facts alleged make out a

constitutional violation. Pearson v. Callahan, __ U.S. __, 129

S.Ct. 808 (2009); Maldonado v. Fontanes, 568 F.3d 263 (1st Cir.

2009). This argument is simply wrong. The cases defendants cite

have no bearing on the issues raised by my ruling.

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current matter. The defendants contend that because the First

Circuit’s decisions in Wagner v. City of Holyoke, 404 F.3d 504

(1st Cir. 2005), and Philip v. Cronin, 537 F.3d 26 (1st Cir.

2008), are the closest factually analogous cases to the present

case, their holdings should govern the court’s decision. The

defendants assert that these cases stand for the proposition that

the defendants are entitled to qualified immunity, despite

evidence that the real reason for the discipline may have been

protected conduct. 

2

I have considered the First Circuit’s decisions in Wagner

and Philip in reaching my conclusion in the present case. As I

noted when I ruled from the bench, however, these cases are

difficult to reconcile with other First Circuit case law on the

subject of qualified immunity. (Tr. at 85-88). The First

Circuit has also held that where an officer’s subjective motive

is an essential element of the constitutional violation itself,

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that motive cannot be divorced from the qualified immunity

inquiry. See Martinez-Velez v. Rey-Hernandez, 506 F.3d 32, 46

(1st Cir. 2007); Rivera-Torres v. Ortiz Velez, 341 F.3d 86, 96-97

(1st Cir. 2003). In the present case, I determined that (1) the

relevant law was clearly established, (2) plaintiff’s speech

related to a matter of public concern, and (3) genuine factual

disputes existed as to whether defendants acted with an improper

motive and whether they would have reached the same conclusion in

the absence of Fritz’s protected speech. Under these

circumstances, First Circuit precedent makes very clear that “the

adoption of an objective standard for qualified immunity in

Harlow did not foreclose all state of mind inquiries during the

pre-trial consideration of qualified immunity when state of mind

is an element of the constitutional tort.” Mihos v. Swift, 358

F.3d 91, 106 (1st Cir. 2004). I decline to reconsider my ruling

on this issue. 

 CONCLUSION 

For the foregoing reasons, I deny the defendants’ motion for

reconsideration. (Doc. No. 105). Because the Hutchins Affidavit

(Doc. No. 105-3) does not affect my decision to deny the

defendants’ motion for reconsideration, I deny the plaintiff’s

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motion to strike the Hutchins Affidavit as moot. (Doc. No. 108).

SO ORDERED.

/s/Paul Barbadoro 

Paul Barbadoro

United States District Judge

July 28, 2009

cc: Pierre Rumpf, Esq.

Paula Werme, Esq.

Nancy J. Smith, Esq.

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