United States District Court, D. Massachusetts
SUPPLEMENTAL MEMORANDUM OF DECISION AND ORDER ON
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Gail Dein United States Magistrate Judge
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
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))).
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.
STATEMENT OF FACTS
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
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).
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).
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.).
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 ¶
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). 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 ¶
Letter to the Board of Selectmen
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 . . .
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
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).
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).
Investigation of Thomas
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.
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. In addition, there is evidence that
Harrington and St. Pierre were in frequent communication
during the investigation. (See, e.g., PR
¶ 71). 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 ¶ 112).
However, despite Thomas' challenges to the veracity of