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Thomas v. Town of Salisbury

United States District Court, D. Massachusetts

January 3, 2018

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. Following this court's ruling on various motions to dismiss, the remaining defendants were the Town of Salisbury and its Town Manager, Cornelius (Neil) Harrington, and, on a limited basis, Robert St. Pierre, who had been hired to investigate Thomas, and whose investigation of the plaintiff had led to the termination of his employment with the Salisbury Police Department.[1]

         On September 30, 2017, this court issued a Memorandum of Decision and Order allowing the Remaining Defendants' motion for summary judgment on Count I, in which Thomas had alleged a violation of First Amendment rights by the Town and Harrington. (See Docket No. 92). Since this was the only federal law claim remaining in the case, this court held a status conference to discuss whether the remaining state law claims should be remanded to the state court in light of Wilber v. Curtis, 872 F.3d 15, 23 (1st Cir. 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))).

         At the status conference, all parties requested that this court retain jurisdiction over this case and decide the Remaining Defendants' motion for summary judgment as to the state law claims. In particular, but without limitation, the parties all agreed that given the age of the case, this court's numerous substantive rulings and consequent familiarity with the complex procedural and factual record, and the straightforward nature of the state law claims, judicial economy, convenience, fairness and comity warrant this court's retention of jurisdiction. This court agrees. Therefore, in this Supplemental Memorandum of Decision and Order this court will address the remaining state law claims, namely 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). For all the reasons detailed herein, the Remaining Defendants' motion for summary judgment as to the state law claims is ALLOWED.


         This decision will assume familiarity with this court's prior decisions on the various motions to dismiss (Docket Nos. 48-50), as well as on the Remaining Defendants' motion for summary judgment (Docket No. 92). The following facts are derived substantially from the summary judgment decision, and are limited to the facts relevant to the issues remaining before this court. In addition, the facts are viewed in the light most favorable to the non-moving party, Thomas. Tobin v. Fed. Express Corp., 775 F.3d 448, 450 (1st Cir. 2014).


         Thomas became a police officer with the Town of Salisbury in 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 Administrative 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 Selectmen, 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.).

         As noted above, with L'Esperance under investigation, 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 of the reprimand as it was happening. (See PR ¶ 45).

         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).[3] 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 would be conducted by St. Pierre, over Thomas' objection that the investigation should be done internally by a superior officer. (See DF ¶ 60).

         Thomas' Letter to the Board of Selectmen

         On February 24, 2011, Thomas provided a so-called “whistle-blower” letter to the Chairman of the Board of Selectmen, reporting sexual harassment claims against Sullivan. (DF ¶ 48). Therein, Thomas purported to disclose information provided by female officers to another male officer who, in turn, disclosed it to Thomas. (Def. Ex. H). 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. It is Thomas' contention that while the Board's initial decision to conduct an investigation into Thomas may have been legitimate, given the issues that had come up during the L'Esperance investigation, the “flawed and rigged investigation” that allegedly took place, “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.” (Pl. Opp. (Docket No. 80) at 3 (Thomas “does not propose that the Board's suggestion that an investigation may be appropriate was, in and of itself, retaliatory . . . .”).[4]

         The Chairman of the Board of Selectmen gave a copy of Thomas' letter to Harrington. (DF ¶ 48). Unbeknownst to Thomas, in or about mid-February 2011, Officer McNeil had approached Harrington and also told him about allegations of sexual harassment concerning Sullivan. (PR ¶ 48). Harrington had acknowledged the complaint, but said that he would “sit on it” for now, and did not report it to any Selectman. (Id.).

         Thomas' charges, however, resulted in further investigation. Thus, a few days later, on February 28, 2011, Harrington told Thomas that, in accordance with the Town's sexual harass-ment policy, and after consulting with counsel, a confidential investigation into the charges of sexual harassment by Sullivan would take place beginning that week. (DF ¶ 49). Harrington reported the same to the Board of Selectmen on February 28, 2011 as well. (DF ¶ 50). In fact, on the same day Harrington, on behalf of the Town, hired Lt. Mary Butler from the Salem Police Department to conduct the investigation. (DF ¶ 51).

         Sullivan retired from the Salisbury Police Department on March 1, 2011, effective immediately. (DF ¶ 52). Richard Merrill was appointed Acting Police Chief by Harrington. (Id.). Lt. Butler submitted her investigative report about Sullivan to Harrington on May 23, 2011. (DF ¶ 53). Harrington advised the Board of Selectmen that the investigation had been completed on June 9, 2011, and Thomas was similarly informed by Acting Chief Merrill on June 22, 2011. (DF ¶¶ 54, 55).

         The Investigation of Thomas

         Meanwhile, on the same day that he hired Lt. Butler to investigate Sullivan, February 28, 2011, Harrington, on behalf of the Town, entered into a contract with St. Pierre to conduct an investigation and render a report concerning the allegations of misconduct involving Thomas which had surfaced during the L'Esperance investigation. (See DF ¶ 63). The investigation continued for months, during which Acting Chief Merrill placed Thomas on paid Administrative Leave, beginning on May 24, 2011. (DF ¶ 64). Thomas contends that the investigation was improper and biased, and that the results were pre-determined. This is strenuously denied by Harrington and St. Pierre.

         A careful and complete reading of the record in this case leads to the conclusion that while the basic facts relating to the investigation are not in dispute, there is a sharp dispute as to the significance of the events and as to the parties' motivations. Reading the record in the light most favorable to Thomas, a fact-finder may conclude that Harrington wanted to remove Thomas from his employment with the Salisbury Police Department even before the investigation began.[5] In addition, there is evidence that Harrington and St. Pierre were in frequent communication during the investigation. (See, e.g., PR ¶ 71).[6] There is also evidence from which a fact-finder may conclude that St. Pierre encouraged officers to disclose any negative information that they might have about Thomas. (See, e.g., PF ΒΆ 112). However, despite Thomas' challenges to the veracity of ...

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