Drake v. Town of New Bos.

2017 DNH 103

Alexandra Drake, Plaintiff v. Town of New Boston, et al., Defendants

Case No. 16-cv-470-SM

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

June 6, 2017

ORDER

Plaintiff, Alexandra Drake, worked as a police officer for the Town of New Boston Police Department from June 1, 2013, until June 9, 2015, when she was placed on administrative leave. On December 8, 2015, the New Boston Board of Selectmen terminated her employment. Drake subsequently filed a multicount complaint against the Town of New Boston, New Hampshire (the "Town" or "New Boston"); James Brace, in his official capacity as New Boston's Chief of Police and in his individual capacity; New Boston Board of Selectmen members Dwight Lovejoy, Christine Quirk and Joseph Constance, in their individual and official capacities; New Boston Police Lieutenant Michael Masella, in his individual and official capacities; and Gary Fisher, Chief Deputy Sheriff of the Hillsborough County Sheriff's Department, in his individual and official capacities.

New Boston, Brace, Lovejoy, Quirk and Constance (collectively, the "Town Defendants") have moved to dismiss several of Drake's claims against them. The motion is denied in part, and granted in part.

STANDARD OF REVIEW

When ruling on a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must "accept as true all well-pleaded facts set out in the complaint and indulge all reasonable inferences in favor of the pleader." SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010). Although the complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), it must allege each of the essential elements of a viable cause of action and "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face," Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal punctuation omitted).

In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Instead, the facts allegedin the complaint must, if credited as true, be sufficient to "nudge[] [plaintiff's] claims across the line from conceivable to plausible." Id. at 570. If, however, the "factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal." Tambone, 597 F.3d at 442.

"Under Rule 12(b)(6), the district court may properly consider only facts and documents that are part of or incorporated into the complaint; if matters outside the pleadings are considered, the motion must be decided under the more stringent standards applicable to a Rule 56 motion for summary judgment." Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008) (citing Garita Hotel Ltd. Partnership v. Ponce Fed. Bank, F.S.B., 958 F.2d 15, 18 (1st Cir. 1992)). "When ... a complaint's factual allegations are expressly linked to — and admittedly dependent upon — a document (the authenticity of which is not challenged), that document effectively merges into the pleadings and the trial court can review it in deciding a motion to dismiss under Rule 12(b)(6)." Id. (quoting Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 16-17 (1st Cir. 1998) (additional citations omitted).

BACKGROUND

Accepting the factual allegations in the amended complaint as true, the relevant background follows. On June 1, 2013, Alexandra Drake was hired as a part-time police officer for the New Boston Police Department; in December 2013, she was hired to work full-time.¹ Officer Masella interviewed Drake as part of the hiring process, recommending to Chief Brace that Drake be hired. Masella was ultimately assigned as Drake's Field Training Officer.

Masella was a highly experienced officer, with several years of experience. Before joining the New Boston Police Department, Masella worked for 23 years as an officer with the Nashua Police Department, retiring as a Patrol Sergeant. Before that he served in the United States Marine Corps. During Masella's time with the NBPD, he was quickly promoted to Sergeant, and then Lieutenant. Chief Brace and Masella were close friends; their families vacationed together.

As Drake's Field Training Officer, Masella was tasked with supervising and training Drake in a wide variety of areasincluding the law applicable to arrests, and searches and seizures; conducting accident investigations, criminal investigations, and motor vehicle stops; report writing; professional demeanor; town policy and prohibited conduct by a police officer; as well as the Standard Operating Procedures of the New Boston Police Department. Masella was also tasked with evaluating Drake's performance. For her part, Drake was "intimidated" by Masella's extensive training and years of service, especially since Masella "made it abundantly clear to [her] that he was not one to confront." Compl. ¶ 31.

Soon after she began working with Masella, Drake noticed Masella was engaging in inappropriate behavior. For example, while field training Drake, Masella conducted traffic stops of female drivers. After completing one such stop, Masella told Drake that, rather than issue a citation, he wanted to take the female driver out and "rape" them. Masella also made comments to Drake about female drivers that he believed found him attractive, and developed what he called a "rapability" scale. After a traffic stop, Masella would test Drake on whether a particular female driver was "rapable." Compl. ¶ 36.

Masella also made inappropriate comments about New Boston Police Department Officers Jennifer Watson and Kate Bragg, both of whom were Drake's senior officers. Masella complained toDrake that Watson "cried all the time," and that Bragg was "full of 'drama.'" Compl. ¶¶ 33-34. Masella's comments about Watson and Bragg made Drake "self-conscious as to how Masella would view her," Compl. ¶ 33, and "convinced [her that] she did not want to get on Masella's bad side," as she was "certain . . . the slightest slip could make her a target of severe harassment, termination of employment or even rape." Compl. ¶ 37.

In September of 2014, Drake brought a report concerning a DWI arrest she had conducted to Masella for review. Drake's report was an internal document, not to be released outside the police department without Masella's or Chief Brace's approval. After reviewing the report, Masella ordered Drake to add certain information into the report "for the benefit of the defense attorneys." Compl. ¶ 57. Masella had requested that Drake make similar corrections in the past; however, this time his requested modification was not factually correct. Nonetheless, Drake complied with Masella's order and modified the report.

In November of 2014, Drake and two other New Boston officers stopped a U-Haul truck driver for erratic operation. The driver, who was placed in protective custody, was carrying a large amount of cash. Drake was charged with counting that cash on video camera at the New Boston Police Station for documentation purposes. Masella ordered Drake to write thepolice report for all three officers present at the scene, which was contrary to the police department's standard practice (which required each police officer to write his or her own report). Speaking with Drake later about the stop, Masella asked Drake whether she had included in her report that she had counted the cash on video camera. When Drake indicated that she had not yet completed her written report, and still needed to include the documentation of the cash, Masella "lashed out" at Drake, calling her a "liar." Compl. ¶ 44.

Drake was generally reluctant to report Masella's conduct because of Masella's status within the NBPD, and his close friendship with Chief Brace. After Masella was promoted to Sergeant, he made comments to Drake concerning Officer Watson, making clear his dislike of Watson, suggesting that Watson would be terminated. Shortly after Masella made those comments, Watson was summarily terminated by the NBPD.

Nonetheless, after the November 2014 U-Haul incident, Drake, upset that Masella had called her a "liar," reported the incident to Chief Brace. She explained to Brace that she was distressed that Masella had questioned her integrity. Chief Brace told Drake that she needed to follow the chain of command, and raise her concerns directly with Masella. At that point, "Drake realized it would be futile to take any matters to[Chief] Brace regarding Masella's conduct;" and, she was afraid to raise her concerns directly with Masella because of Masella's treatment of employees he did not like (like Watson). Compl. ¶ 45.

Shortly after the November 2014 U-Haul incident, Drake spoke with Kathleen MacDonald, a records clerk for the NBPD, regarding her concerns about Masella. MacDonald told Drake that "it was known" that Masella made inappropriate sexual comments towards Drake, other members of the NBPD, and female motorists. However, MacDonald warned, if Drake complained to Masella or Chief Brace about those comments, Masella and Chief Brace would make Drake's life a "living hell." Compl. ¶ 46.

Masella's inappropriate conduct continued. In December of 2014, Drake, off duty, ran into Masella at a local bank. Drake was wearing a pair of sweatpants with "Pink" imprinted on the rear. Masella questioned Drake's choice of attire, asking her "Pink . . . are you trying to get the guys to look at your *ss," making clear to Drake that he was looking at her buttocks. Compl. ¶ 48. He then told Drake he had a similar pair of sweatpants, but his read "Juicy."

Masella's "on duty" conduct was no better. While Drake was present, Masella spoke negatively about other NBPD officers(including Drake's immediate supervisor ...