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Cristo v. Evangelidis

Appeals Court of Massachusetts, Worcester

October 28, 2016

JUDE CRISTO
v.
LEWIS EVANGELIDIS.[1]

          Heard: November 2, 2015.

         Civil action commenced in the Superior Court Department on September 6, 2011.

         A motion for summary judgment was heard by David Ricciardone, J.

          Andrew J. Abdella for the defendant.

          Timothy M. Burke for the plaintiff.

          Present: Agnes, Sullivan, & Blake, JJ.

          AGNES, J.

         The 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.[2] 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.[3] See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

         Background.

         We view 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.

         In 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.

         On 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.

         Cristo 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.

         On 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 they ...


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