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O'Connor v. Spain

United States District Court, D. Massachusetts

February 5, 2015

ROBERT SPAIN, individually and as Town Manager for the Town of Millbury, Massachusetts, Defendant

For Judith A O'Connor, Plaintiff: James D. O'Brien, Jr., LEAD ATTORNEY, Mountain, Dearborn & Whiting, LLP, Worcester, MA.

For Robert Spain, Individually and as Town Manager for the Town of Millbury, Massachusetts, Defendant: Carole Sakowski Lynch, LEAD ATTORNEY, Morrison Mahoney LLP, Springfield, MA; Nicholas Anastasopoulos, LEAD ATTORNEY, Mirick O'Connell, Westborough, MA.



Plaintiff Judith O'Connor (" Plaintiff" ), Director of the Council on Aging for the Town of Millbury, asserts claims against Defendant Robert Spain (" Defendant" ), the Millbury Town Manager, in his individual and official capacities. Plaintiff alleges that Defendant deprived her of rights to freedom of speech and due process secured by the First and Fourteenth Amendments of the U.S. Constitution, and seeks damages under 42 U.S.C. § 1983. Plaintiff also requests that the Court enter declaratory judgment setting forth her rights under the Massachusetts conflict of interest statute, M.G.L. c. 268A § 23(b)(2)(ii). Defendant has moved for summary judgment. For the reasons set forth below, Defendant's motion for summary judgment is granted in part and denied in part.


This case arises out of Defendant's decision to suspend Plaintiff for comments she made at work about candidates for the Millbury Board of Selectmen and Board of Health prior to a town election in April 2012. Plaintiff is employed by the Town of Millbury as the Executive Director of the Council on Aging. Defendant is the Town Manager. Pursuant to the town charter, the town manager has the authority to suspend or remove town employees for good cause.

Municipal elections for the Town of Millbury were scheduled to take place on Tuesday, April 24, 2012. One of the services that the Council on Aging provides to seniors is to give rides to the polls on election day. While at work on April 20, Plaintiff went into the dining room at the Senior Center just before lunch and made statements to seniors about the upcoming election. The substance and context of those comments are disputed. Deborah Dymek, a senior who was present in the dining room at the time, recalls the following:

[Plaintiff] came into the dining area, said that there was voting on Tuesday, and that Franny King is running for selectman. " Now, Franny is a friend of the Senior Center, and he is the person that donates money for the summer concerts, so he is a friend of the Senior Center. . . . [Selectman Candidate Sandy Cristo and his wife] are not friends of the Senior Center. [Board of Health Candidate] Bill Wilkinson is a friend of the Senior Center . . . ."

Dymek Dep. 43:4-13. Dymek was upset and intimidated by the comments because she felt that Plaintiff was telling the seniors how to vote. Dymek Dep. 46:11-18; Spain Dep. 89:17-22.

Mary Clark, an employee of Elder Services of Worcester who helped serve lunch to seniors that day, says that Plaintiff made an " announcement" that " Tuesday was a very important day, and that she would provide transportation to the poles [sic], and she couldn't tell people who to vote for, but she could tell people who was friends of the Millbury Senior Center." Clark Dep. 52:23-53:6. According to Clark:

[Plaintiff] said . . . " I don't usually tell you who to vote for, but in this case I will." That's when she said: " I don't tell you who to vote for, but I can tell you [candidate] Franny King has been a friend of the seniors and [candidate Sandy Cristo and his wife] have not."

Clark Dep. 58:18-59:4. Plaintiff maintains that she did not make an announcement. Instead, she says that she entered the dining room only to get a cup of coffee when multiple people began asking her questions about the election. O'Connor Dep. 294:2-13, 136:11-19. She made clear that she could not tell anyone how to vote. Id. at 121:22-122:5. In response, someone asked " well, can you tell who is good for the Senior Center?" Id. at 122:9-10. Emphasizing again that she could not tell people how to vote, Plaintiff expressed her opinion that Mr. King had been a friend to the Senior Center, but that the Cristos had not been friends to the Senior Center. Id. at 122:11-123:2. As she was leaving, Plaintiff reminded the seniors that free rides to the polls were available on election day, and encouraged them to vote. Id. at 137:11-16. The encounter lasted only three to four minutes. Id. at 138:3-6. Plaintiff maintains that the conversation would never have occurred if she had not been asked questions about the election by those in the dining room. Id. at 137:6-8.

That same day, Defendant received several complaints about Plaintiff's comments. Joseph Coggans, Jr., a former Millbury selectman, called Defendant after hearing from Dymek that she was upset about what Plaintiff had said. Coggans Dep. 21:13-18. Armand White, a candidate for the Millbury Board of Health, also called Defendant after he was told by " several people" that Plaintiff had told seniors to vote for his opponent, Bill Wilkinson. White Dep. 37:21-38:4. Dymek herself went to Defendant's office to complain. Defendant was not there at the time, so his secretary scheduled a meeting with her for the following Monday, April 23. Over the weekend, Defendant received an anonymous voicemail message from the daughter of a senior who had felt intimidated by Plaintiff's comments. Spain Dep. 146:5-19.

At the April 23 meeting with Defendant, Dymek shared her account. She told Defendant that Plaintiff had made an announcement to the seniors in the dining room that the elections were upcoming, encouraged them to vote, and explained who did and did not support the Senior Center. Spain Dep. 88:7-89:22. Dymek told Defendant that she felt she was being told who to vote for. Id. at 89:21-22. Taking the complaint seriously, Defendant appointed Chief of Police Mark Moore to investigate and placed Plaintiff on administrative leave " pending an investigation into allegations of possible misconduct regarding voting in connection with the Town municipal elections." Spain Dep. 164:19-24; Notice of Administrative Leave, Docket No. 64, Ex. G. Following three months of investigation, Chief Moore submitted a report to Defendant. Among other factual findings, the report concluded that while at work, Plaintiff had made statements to seniors expressing her opinion about what candidates supported the Senior Center. See Confidential Summary Memorandum, Docket No. 64, Ex. E, at 38.

Based on Chief Moore's report, Defendant decided to conduct a Loudermill hearing to determine whether Plaintiff should be suspended. The hearing took place before Defendant on August 20, 2012. The allegations against Plaintiff included multiple violations of the employee handbook and Massachusetts law, including the Massachusetts conflict-of-interest statute. As discussed in greater detail below, § 23(b)(2)(ii) of the conflict-of-interest statute prohibits municipal employees from using their official position " to secure unwarranted privileges" not available to others. See M.G.L. 268A ยง 23(b)(2)(ii). On August 21, 2012, Defendant issued a written decision in which he found that Plaintiff " used Town time and property to promote a candidate and influence the outcome of the Town elections in ...

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