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Delaney v. Town of Abington

United States District Court, D. Massachusetts

September 30, 2016

TOM DELANEY
v.
TOWN OF ABINGTON ET AL.

          MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          RICHARD G. STEARNS, UNITED STATES DISTRICT JUDGE

         Tom Delaney, a police officer in Abington, Massachusetts, brought this lawsuit against his employer, the Town of Abington, and the command staff of the Town's police department, namely Chief David Majenski, Deputy Chief Christopher Cutter, and Lieutenant Kevin Sullivan. Delaney claims that, after he brought what he believed was an unlawful traffic ticketing policy promulgated by Chief Majenski to the attention of the Massachusetts Attorney General, he endured several acts of retaliation in violation of the Massachusetts Whistleblower Statute, Mass. Gen. Laws ch. 149, § 185(b).[1] In addition to the whistleblower claim against the Town (Count I), Delaney alleges violations of the Massachusetts Civil Rights Act (MCRA), Mass. Gen. Laws ch. 12, § 11H (Count II), the federal Civil Rights Act, 42 U.S.C. § 1983 (Counts III and IV), and intentional infliction of emotional distress (Count V), against Majenski, Cutter, and (with the exception of Count IV) Sullivan. In due course, defendants moved for summary judgment. The court heard oral argument on the motion on September 13, 2016.

         BACKGROUND

         The material facts viewed in the light most favorable to Delaney as the nonmoving party are as follows. Delaney was hired as a police officer by the Town in 2010. In May of 2013, Chief Majenski and Deputy Chief Cutter ordered a more aggressive approach to traffic enforcement, including an instruction to officers to issue more tickets, which carry a monetary penalty, in lieu of written warnings, which do not. Delaney believed that the order was at odds with the discretion over traffic ticketing given to patrol officers by Mass. Gen. Laws ch. 90C, § 3(A)(1), as interpreted by the Massachusetts Appeals Court in Newton Police Association v. Police Chief of Newton, 63 Mass.App.Ct. 697 (2005). At a roll call on May 29, 2013, Delaney complained about the new policy to his immediate supervisor, Sergeant Michael Carini, referencing the Newton Police case, and providing Carini with a copy of the departmental rule explaining an officer's recourse when ordered to do an act he or she believes unlawful.

         On June 11, 2013, Deputy Chief Cutter sent a departmental email thanking officers for their efforts in achieving an increase in the ratio of money citations to written warnings over the previous two weeks. He emphasized that he had “only mandated an increase in $ tickets for these specific assignments [in May and June]” and that “mov[ing] forward I have no directive in regards to what you issue, however, I do feel an increase in money fines may correct driving behavior better than a majority of warnings.” Defs.' Ex. 9, Dkt #51-2.

         Despite the June 11, 2013 email, Delaney alleges that Chief Majenski and Deputy Chief Cutter continued to informally pressure officers to issue more money citations. The issue flared again in March of 2014, when Delaney was approached by Sergeant Matthew Owings, who told him that he had been threatened with discipline because officers on his shift were issuing too few money citations. Delaney and Owings discussed the Newton Police case, and Owings said that he would give a copy of the case to Deputy Chief Cutter. According to Owings, he met with Chief Majenski and Deputy Chief Cutter to discuss the issue of officer ticketing discretion. Following this meeting, all officers on Owings's midnight to 8 a.m. shift were reassigned to morning guard duty at Abington High School and the Town's middle school. At some point in March, Delaney joined Owings's shift. When Delaney entered on duty with Owings, Lieutenant Sullivan warned Owings that Delaney needed to issue more money citations or he would find himself in a desk job.

         On April 7, 2014, Delaney personally delivered a written complaint to the Massachusetts Attorney General's office in Boston describing what he believed to be an illegal scheme to fill Town coffers by imposing traffic ticket quotas on the Town's officers. That same day, Sergeant Carini, acting at the direction of Deputy Chief Cutter, ordered Delaney to reprogram the office fax machine.[2] Also that day, Cutter emailed Owings to tell him that officers on his shift (including Delaney) would not receive credit toward their community policing requirement for serving the 6 a.m. - 8 a.m. school guard duty.

         On April 9, 2014, Delaney was ordered to attend a meeting with Chief Majenski in his office. According to Delaney, the Chief made a number of threatening comments, stating that Delaney was not cut out to be a police officer, that he lacked the heart to give out money citations, and that while the Chief's opponents might “win the battle, ” Majenski “always win[s] the war.” Pl.'s Ex. 94, Dkt #69-11, at 9. Majenski also implied that if Delaney began issuing money citations, he would be relieved of school guard duty. Delaney refused to issue more tickets, and in the summer of 2014, he transferred to the 4 p.m. - midnight shift. As a result of the shift change, he lost the pay differential received by officers assigned to the midnight - 8 a.m. shift. He was also required to “work the desk” at the police headquarters one night out of every four along with the other three officers assigned to the evening shift.

         On October 14, 2014, Delaney returned to the Attorney General's office to refile his complaint. Later that day, he delivered a copy of the complaint to Richard LaFond, the Abington Town Manager. Delaney alleges that the presentation of the complaint to LaFond triggered another round of recriminations. Specifically, on October 16, 2014, after Delaney repeated a profanity uttered by a 911 caller over the police radio, his immediate supervisor, Sergeant Mark Kilgour, reprimanded him for cursing over the air.

         On February 26, 2015, Delaney, in his capacity as president of the patrol officers' union, was present at a contentious meeting with Chief Majenski and Deputy Chief Cutter regarding labor-management issues. At one point, Cutter told Delaney that he needed to “be careful.” When Delaney repeated those words back to Cutter, the meeting was called to an abrupt halt by Chief Majenski. Cutter emailed Delaney after the meeting, copying the department's shift supervisors, with a warning that Delaney's conduct at the meeting had bordered on insubordination and that a repetition could result in discipline. On May 20, 2015, Chief Majenski emailed Delaney informing him that he would be reassigned to the local state district court to serve as the police prosecutor for Abington.[3] Finally, in December of 2015, Delaney was suspended for two days without pay by Deputy Chief Cutter after he failed to appear on time for his shift, although he insists that he complied with departmental rules by giving prior notice of his late arrival, and that he had similarly complied with the department's regulations in two other instances of tardiness in July of 2015 cited by Cutter to justify the suspension.

         DISCUSSION

         Summary judgment is appropriate when, upon examination of the record evidence in the light most favorable to the nonmoving party, there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party seeking summary judgment must demonstrate to the court the absence of genuinely disputed material facts by reference to the record. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once that task is accomplished, “the burden shifts to the nonmoving party, who must, with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor.” Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). That showing must rely on significantly probative evidence drawn from “materials of evidentiary quality.” Nieves-Romero v. United States, 715 F.3d 375, 378 (1st Cir. 2013).

         Count I: The Massachusetts Whistleblower Statute

         Delaney's claim that the Town violated the Massachusetts Whistleblower Statute, Mass. Gen. Laws ch. 149, § 185, rests on the assertion that Town officials retaliated against him after he complained to the Massachusetts Attorney General in April of 2014 about the ticketing enforcement policy. The Whistleblower Statute has a somewhat unusual structure. It protects from employer retaliation an employee who “[d]iscloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes is in violation of a law.” Id. § 185(b)(1). An employee may not bring a whistleblower claim on this basis, however, unless he “has [first] brought the activity, policy or practice in violation of a law . . . to the attention of a supervisor of the employee by written notice and has afforded the employer a reasonable opportunity to correct the activity, policy or practice.” Id. ยง ...


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