Heard: November 2, 2015.
action commenced in the Superior Court Department on
September 6, 2011.
motion for summary judgment was heard by David Ricciardone,
J. Abdella for the defendant.
Timothy M. Burke for the plaintiff.
Present: Agnes, Sullivan, & Blake, JJ.
question before us is whether the defendant, Lewis
Evangelidis, sheriff of Worcester County, was entitled to
judgment as a matter of law on count three of the plaintiff
Jude Cristo's complaint, charging Evangelidis with a
violation of 42 U.S.C. § 1983. In particular, Cristo
alleges that Evangelidis retaliated against him by
terminating him from employment in the Worcester County
sheriff's office (sheriff's office or department) on
January 7, 2011, for exercising his rights under the First
Amendment to the United States Constitution in early 2010,
the year before Evangelidis took office. For the reasons that
follow, we conclude that Evangelidis's motion for summary
judgment, based on the defense of qualified immunity, should
have been allowed because on the record before us,
Cristo's speech, while related to matters of public
concern, was undertaken in his capacity as an employee of the
sheriff's office, and not as a private
citizen. See Garcetti v.
Ceballos, 547 U.S. 410, 421 (2006).
the summary judgment record in the light most favorable to
Cristo, the nonmoving party. Cristo was hired in June, 1999,
as the assistant personnel director of the sheriff's
office. Cristo was promoted to human resources director of
the sheriff's office in February, 2006, by Guy Glodis,
Evangelidis's predecessor. Shortly thereafter, Cristo was
also appointed by Glodis to be the payroll director, and
given other human resource duties. When, during the summer of
2009, Glodis decided not to seek reelection as sheriff, Shawn
P. Jenkins assumed the role of acting sheriff.
early 2010, Cristo expressed concerns to Jenkins, and to
deputy superintendent Paul Legendre, that assistant deputy
superintendent Scott Bove, a candidate for the sheriff's
position, was not performing his human resource duties and
was away campaigning as a candidate for sheriff for some
portion of days he marked himself present at the department.
Jenkins and Legendre informed Cristo that they were aware of
the situation. Cristo also told Jenkins and Legendre that he
personally observed Captain Jason Dickhaut, who had duties
relating to the payroll for line staff at the sheriff's
office, helping Bove with his campaign for sheriff during
work hours, and that Dickhaut had given bumper stickers
supporting Bove's candidacy to Cristo's assistant for
payroll and asked her to record "missed punches" in
the department's time clock system for him and others.
Because Dickhaut's sporadic attendance and failure to
perform his payroll duties were "causing problems with
the department's ability to process the payroll in a
timely manner, " Cristo brought his concerns directly to
Jenkins, who supervised Dickhaut.
Friday, February 19, 2010, Dickhaut confronted Cristo about
the complaints made by Cristo about Dickhaut's campaign
activities on department time and Dickhaut's interactions
with human resource and payroll personnel. Dickhaut was loud
and hostile. Jenkins, who was in the next office when
Dickhaut confronted Cristo, told Cristo that he had heard the
exchange. When asked what he was going to do about it,
Jenkins reportedly laughed, and told Cristo "that he let
it go on" and "to go home early." The
following weekend, Cristo prepared a five-page report on
Dickhaut's violations of law and the department's own
regulations, but did not submit it to Jenkins.
attended a meeting with Jenkins and Legendre on Monday, June
14, 2010. Cristo reminded them of the confrontation Dickhaut
had initiated with him, and informed them about the five-page
report he had prepared. They did not ask him to submit it.
Cristo also brought up his ongoing concerns about Bove's
campaign activities and his failure to keep accurate time
records, as well as an issue about missing radios that were
the property of the department. Jenkins expressed concerns
that by putting things in electronic mail (e-mail) messages
and writings, Cristo was making him (Jenkins) look like he
was not interested in addressing these issues. Cristo told
them he simply wanted these problems resolved.
November 7, 2010, Evangelidis, as sheriff-elect, was
interviewed by the Worcester Telegram and Gazette and
reportedly said that it was not his intention to replace
everyone then employed by the sheriff's office, that he
had not yet picked anyone for the management positions, that
he was willing to interview current employees, and that if