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Thomas v. Town of Salisbury

United States District Court, D. Massachusetts

September 30, 2017

MARK THOMAS, Plaintiff,


          Judith Gail Dein United States Magistrate Judge.


         The plaintiff, Mark Thomas, was a police officer with the Town of Salisbury, Massachusetts. He brought this action alleging numerous violations of his constitutional and state law rights in connection with an internal investigation brought against him, his resulting termination as a police officer, and his subsequent reinstatement. The defendants originally fell into three groups, including the Town of Salisbury and the Town Manager, Cornelius (Neil) Harrington (collectively the “Town Defendants”), and the “Individual Defendants, ” which group included police officers Richard Merrill, Jr., Eugene Scione, Steven Sforza and Michael Alder; Robert St. Pierre (the former Chief of the Salem Police Department who conducted the investigation); and Thomas Fowler (the current Chief of the Salisbury Police Department). The final group, collectively referred to as the “L'Esperance Defendants, " included David J. L'Esperance (the former Salisbury Chief of Police); Kevin Sullivan (the former Salisbury Acting Chief of Police); and Daniel McNeil (a retired Sergeant from the Salisbury Police Department).

         All three groups moved to dismiss the Complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). This court issued extensive decisions on those motions, dismissing all the claims except Count I (violation of First Amendment Rights - Retaliation against the Town and Harrington), Count V (civil conspiracy against Harrington and St. Pierre), Count VII (violation of Mass. Gen. Laws. ch. 12, § 11I - The Massachusetts Civil Rights Act against Harrington), Count VIII (intentional infliction of emotional distress against Harrington), Count IX (intentional interference with contractual relations against Harrington), and Count X (interference with advantageous business relations against Harrington). (See Docket Nos. 48-50).

         Following the completion of discovery, the defendants moved for summary judgment on all of the remaining counts. For the reasons detailed herein, the Defendants' Motion for Summary Judgment (Docket No. 70) is ALLOWED as to Count I, the alleged violation of Thomas's First Amendment Rights. Since this is the only federal law claim, a status conference will be held to discuss whether the remaining state law claims should be remanded to the state court in light of Wilber v. Curtis, ___ F.3d ___, No. 16-2250, 2017 WL 4159603, *6 (D. Mass. Sept. 20, 2017) (“the Supreme Court has instructed that ‘in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine - judicial economy, convenience, fairness, and comity - will point toward declining to exercise jurisdiction over the remaining state-law claims.'” (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7, 108 S.Ct. 614, 619 n.7, 98 L.Ed.2d 720 (1988))).


         On February 24, 2011, Thomas delivered a two-page memorandum to the Chairman of the Board of Selectman, Donald Beaulieu, which contained a number of allegations of sexual harassment concerning then Acting Chief of Police Sullivan (the “whistle-blower letter”). (DF ¶¶ 48, 43). In Count I of his Complaint, Thomas alleges that, in response, and in violation of his First Amendment rights, the Town Manager Neil Harrington and Robert St. Pierre, whom Harrington had hired to investigate affairs at the Police Department, retaliated against Thomas by targeting him for removal from the police force, and permitting a “flawed and rigged investigation” of complaints against Thomas to be conducted. (Pl. Mem. (Docket No. 80) at 3 (“Thomas here does not propose that the Board's suggestion that an investigation may be appropriate was, in and of itself, retaliatory, rather this particular flawed and rigged investigation, with pre-determined results, was conducted in retaliation for Thomas' disclosure of Sullivan's improprieties approximately a week prior to the commencement of the formal Thomas Investigation.” (emphasis in original)). The defendants have moved to dismiss this claim on various grounds, including that his speech was not protected since Thomas was acting in his capacity as a police officer, and not a private citizen, when he communicated with the Board of Selectman. At the motion to dismiss stage, this court concluded that the allegations of the Complaint were sufficient to support a finding that Thomas was acting as a private citizen, so Count I was not dismissed. (See Memorandum of Decision and Order on Town Defendants' Motion to Dismiss (Docket No. 48) (“Town Dec.”) at 10-15). After consideration of the full record, this court agrees with the defendants that Thomas' speech was not protected under the First Amendment. Moreover, this court finds that the defendant Harrington is entitled to qualified immunity on this claim. Therefore, summary judgment shall be entered in favor of the defendants on Count I of the Complaint.


         This decision will assume familiarity with this court's prior decisions on the motions to dismiss. (See Docket Nos. 48-50). Only the facts relevant to the motion for summary judgment will be repeated herein.[1] However, a general chronology will be helpful to put the current issues into context.

         Thomas has been a police officer with the Town of Salisbury since the 1980s. (Compl. (Docket No. 1) at 16, 19). In early 2006, the Town Manager, Neil Harrington, put together a four-person Screening Committee to screen the applicants for a new Chief of Police for the Town. (DF ¶ 6). Harrington was a member of the Committee, as was Thomas. (Id.). The Screening Committee unanimously recommended David L'Esperance. (DF ¶ 7). Harrington hired L'Esperance as the Chief of Police in April 2006. (DF ¶ 10). In accordance with the Town Charter, L'Esperance's contract was verified by the Board of Selectmen. (Id.). On, or soon after, his first day on the job, L'Esperance appointed Thomas to the position of Detective. (DF ¶ 12). It is Thomas' contention that this appointment, as well as his rising status in the Department, caused much jealousy among his fellow officers. (PR ¶ 12).

         The L'Esperance Investigation

         In the Fall of 2010, two Salisbury Police Officers, Tony King and Steven Sforza, learned of certain alleged misconduct involving Chief L'Esperance, which they brought to the attention of the Executive Officer, Kevin Sullivan. (DF ¶ 20). Sullivan, in turn, brought this information to the attention of Harrington. (Id.). Harrington placed L'Esperance on Administrate Leave on December 5, 2010, and appointed Sullivan as the Acting Police Chief. (DF ¶ 21). On or about December 9, 2010, Harrington, on behalf of the Town, entered into a contract with Robert St. Pierre, effective December 1, 2010, to conduct an investigation into the charges against L'Esperance. (DF ¶ 23; PR ¶ 23). Harrington had worked with St. Pierre in Salem, Massachusetts, where Harrington had been the Mayor and St. Pierre had been the Chief of Police. (DF ¶¶ 7, 15).

         On December 27, 2010, the Board unanimously renewed Harrington's employment as Town Manager. (DF ¶ 31). On January 11, 2011, Harrington sent L'Esperance a letter, copy to the Board of Selectman, advising him that St. Pierre had been hired to conduct an administrative review of the allegations of misconduct that had been made against him, and advising L'Esperance that he would be interviewed by St. Pierre on January 13, 2011. (DF ¶ 32). During the course of the L'Esperance investigation, St. Pierre interviewed 14 officers and civilian employees of the Police Department. (DF ¶ 36). On January 18, 2011, L'Esperance tendered his resignation from the Salisbury Police Department. (DF ¶ 37). On January 24, 2011, St. Pierre turned in his investigative report concerning L'Esperance to Harrington (and the Board). (See DF ¶ 38). Therein, St. Pierre concluded that he would have recommended the immediate dismissal of L'Esperance if he had not already resigned. (Id.).

         Allegations Against Thomas

         The L'Esperance Report also contained allegations against Thomas. (PR ¶ 38). In particular, these allegations included that Thomas had studied for the bar exam while on the job, that Thomas had witnessed L'Esperance pilfering evidence at crime scenes and that Thomas had conspired with L'Esperance to create a false resume for submission to the FBI that included Thomas' designation to the position of Chief of Detectives. (PF ¶ 114).[2] On January 24, 2011, St. Pierre gave a summary of his report to the Board of Selectmen meeting in an Executive Session. (DF ¶ 39). On either that day and/or on February 14, 2011, the Board asked Harrington to ask St. Pierre to conduct an investigation into certain “loose ends” with respect to L'Esperance, and to conduct an investigation into the allegations made against Thomas during the L'Esperance investigation. (DF ¶ 58; PR ¶ 58; DF ¶ 59). Thomas was aware of the decision to investigate him by no later than February 14, 2011, and he knew that the investigation was going to be conducted by St. Pierre, over Thomas's objection that the investigation should be done internally by a superior officer. (See DF ¶ 60).

         Harrington also met with some members of the Salisbury Police Department on January 28, 2011, and told them that he would meet with officers individually to discuss any concerns they had with the Department. (DF ¶ 40). It is unclear whether Thomas was there, but at least one Sergeant took Harrington up on his offer for a private meeting. (PR ¶ 40; DF ¶ 41). During that meeting, the Sergeant complained that Harrington had not taken action about L'Esperance sooner. (Id.).

         Meanwhile, Sullivan was serving as the Acting Chief of Police. Thomas and Sullivan had a negative history and it did not improve. For example, Sullivan issued a reprimand against Thomas, which was later rescinded. (See DF ¶¶ 44-47; PR ¶ 44). Harrington was advised by Sullivan about the reprimand as it was happening. (See PR ¶ 45).

         Thomas's Letter to the Board of Selectmen

         On February 24, 2011, Thomas provided his so-called “whistle blower” letter to the Chairman of the Board of Selectman, reporting sexual harassment claims against Sullivan. (DF ¶ 48). As detailed above, by the time Thomas provided the letter to the Board, he was aware that the Board had decided that his conduct would be investigated by St. Pierre. Thomas' letter began as follows:

I was recently given information from Officer Dan McNeil regarding an alarming allegation against another member of the Salisbury Police Department. In light of what just transpired in our town, I feel that it is my duty to fully disclose as a certified sexual assault investigator trained by the Massachusetts State Police through the Essex County District Attorney's Office, and it being the wish of the Selectmen, Town Manager, and residents of Salisbury to come forward with identified victims, named witnesses, and factual evidence in regard to any and all Salisbury Police officers with allegations of sexual harassment and/or misconduct, and actions unbecoming an officer.

(Def. Ex. H at 1). The letter concluded as follows:

I feel that it is in the best interest of the town and for the men and women of the Salisbury Police to fully disclose these serious charges. The Board of Selectmen and the Town Manager impressed upon all of us that they would like the police to come forward with named witnesses and victims of alleged misconduct rather than going forward with just rumor or innuendo.

(Id. at 3). All of the allegations were based on information Thomas allegedly obtained from other ...

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