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Crenshaw v. Town of Southborough

United States District Court, D. Massachusetts

March 29, 2018

TOWN OF SOUTHBOROUGH, JEAN KITCHEN, in her individual and official capacity, and JANE MORAN, in her individual and official capacity, Defendants.




         This action stems from the termination of a Southborough police officer after he requested injured-on-duty (“IOD”) leave. The plaintiff, Michael Crenshaw alleges that he was entitled to IOD leave because of the stress and anxiety he suffered as a result of his activity as a police officer and on behalf of the Southborough Police Department Union, Local 167 (the “Union”). He brings the instant action against the town of Southborough (the “Town”), former Southborough police chief, Chief Jane Moran (“Moran”), and former town administrator, Jean Kitchen (“Kitchen”) alleging: (I) violation of his procedural due process rights; (II) violation of his substantive due process rights; (III) intentional interference with advantageous relations; (IV) violation of implied covenant of good faith and fair dealing; (V) intentional interference with prospective advantageous relations; (VI) abuse of process; (VII) defamation and; (VIII) intentional infliction of emotional distress. This memorandum discusses whether the Defendants are entitled to summary judgment with regards to the claims of substantive due process, intentional interference with advantageous and/or prospective advantageous relations, and intentional infliction of emotional distress.[1]


         Michael Crenshaw was hired by the Southborough Police Department (the “Department”) as a civilian dispatcher in 2002, as a full-time police officer in 2006, and completed the police academy in 2007. In December 2007, Crenshaw became the president of the Union. During his time as president he filed a number of complaints, many of which alleged misconduct of fellow police officer Sgt. Slatkovitz. In May 2008, police chief Webber and Kitchen ordered Crenshaw, to file a written report detailing his complaints of employee violations of Department rules and Massachusetts law. Crenshaw wrote a detailed report which included allegations that Sgt. Slatkovitz improperly released suspects, and other conduct which resulted in unsafe working conditions. After an investigation, Chief Webber found Sgt. Slatkovitz in violation of Police Department Rules and Regulations for one incident but otherwise found no other inappropriate conduct by Sgt. Slatkovitz or any other Department employee.

         Chief Moran was appointed chief of the Department after Chief Webber passed away in 2009. In 2010, Crenshaw again became the Union president.[2] In July 2010, Crenshaw and a fellow police officer met with Chief Moran regarding their concerns about Sgt. Slatkovitz. Chief Moran followed up with an email to Crenshaw, recommending that he seek counseling for his personal grudge against Sgt. Slatkovitz. In August, acting as Union president, Crenshaw asked for clarification on a driving restriction placed on a fellow officer. Chief Moran forwarded his request to a Union attorney stating that “one of these days he will go [too] far and get written up.” (Doc. No. 72 at ¶114). The Union filed a charge of prohibited practice against Chief Moran alleging that this response constituted a threat intended to discourage Crenshaw's Union activity.

         On December 25, 2010, a fellow patrolman was ordered to remain on patrol by Sgt. Slatkovitz instead of escorting an arrestee to the hospital; the suspect fled. Crenshaw contacted Chief Moran to discuss this incident and made plans to meet the following morning. Chief Moran refused to discuss the issue without Crenshaw's permission to record their conversation which Crenshaw declined, absent representation. Prior to leaving Chief Moran's office, Crenshaw requested clarification on the arrest policy. Chief Moran asked if he was able to implement and enforce her directives as police chief. Crenshaw replied, “yes, if we are all on the same page.” (Doc. No. 65 at ¶ 18). Chief Moran told Crenshaw that he had not answered her question because she was requesting a yes or no response. Crenshaw again replied, “yes if we are all on the same page.” Id. Chief Moran then placed Crenshaw on a two-day suspension and issued a written reprimand.[3] An unfair labor practice charge was filed against her on behalf of Crenshaw. As a result, the Town agreed to rescind and expunge the written reprimand from Crenshaw's personnel file provided he not disciplined for insubordination for two years.

         After returning to work, Chief Moran reassigned Crenshaw to the 8:00 am to 4:00 pm shift in an effort to “keep an eye on him.” (Doc. No. 65 at ¶ 21.) Sgt. Slatkovitz became Crenshaw's supervisor July 2011. On July 2nd, Crenshaw left work due to physical discomfort and was diagnosed with shingles. He returned to work on July 15, 2011. Three days later, Crenshaw felt pain where he had shingles and was permitted to leave. He never returned to work for the Department.[4]

         On July 23, 2011, Crenshaw sent Chief Moran a letter referencing IOD leave, pursuant to Mass. Gen. Laws ch. 41 §111F. The letter informed her that his medical leave was a result of the stress and anxiety experienced on the job. Chief Moran sent Crenshaw paperwork under the Family Medical Leave Act (“FMLA”), informed him that the Town was tentatively designating his absence as FMLA, and reserved the Town's right to have an independent physician evaluate him.

         On October 3, 2011, Crenshaw was ordered to meet with Dr. Reade for an “Independent Medical Exam in regards to [Crenshaw] filing an injured on duty claim.” (Doc. No. 53-18 p.1). Prior to meeting with Crenshaw, Dr. Reade requested all information in Crenshaw's employment file. Instead of providing everything as requested, Chief Moran provided an opinion-based summary of his employment history. She included her belief that Crenshaw was “fixated” on Sgt. Slatkovitz's job performance, had become “enraged” when his complaints against Sgt. Slatkovitz were unfounded and that his attitude was “spiraling downward, ” and he was “out of control.” (Doc. No. 65 at ¶ 148-50). She also failed to inform Dr. Reade that Crenshaw had filed most, if not all, of his grievances as a representative of the Union.

         Before beginning the evaluation, Dr. Reade informed Crenshaw that she was not treating him, that the information discussed was not confidential, and that it would be shared with his employer. During the evaluation, Crenshaw disclosed a history of illegal drug use in 2004-2005. He stated that he had attended an outpatient detoxification program in Walpole to deal with that drug use, and that he had been taking Suboxone to manage his opioid dependency since 2007. Crenshaw states that he informed Chief Webber about his substance abuse when he first sought treatment in 2005.[5]

         Immediately upon learning of this information, Chief Moran looked into Crenshaw's application for a license to carry a firearm. Crenshaw had applied for and was granted a license in July 2008 from the Millville Police Department.[6] Question nine of the application asks, “[a]re you or have you ever been under treatment or confinement for drug addiction or habitual drunkenness?” (Doc. No. 65 at ¶ 8). “Crenshaw answered, ‘No' in writing and signed the applications under the pains and penalties of perjury.” Id. Crenshaw states that he believed the question was only asking if he had ever been confined for drug addiction and because he had not, he answered in the negative. Chief Moran sent a letter notifying the Millville Police Department of Crenshaw's disclosure of substance abuse and stated that he was “unsafe.” Millville subsequently revoked his license to carry.

         Dr. Reade completed her report, titled, “Fitness For Duty Evaluation, ” after meeting with Crenshaw and discussing some of his medical history with his providers.[7] Chief Moran requested that Crenshaw follow up with Dr. Reade because the report was inconclusive as to the extent of his history of substance abuse and the success of his treatment. She sent two letters in December ordering him to contact Dr. Reade. Crenshaw claims that he did not receive the letters therefore, he did not contact Dr. Reade.

         In January 2012, Chief Moran sent a third letter ordering Crenshaw to appear for an investigatory interview. Crenshaw attended, represented by counsel. As advised by counsel, Crenshaw refused to answer questions about his substance abuse or sign medical releases. At the end of the interview, Crenshaw acknowledged that his failure to participate could result in further discipline, including termination.

         A termination hearing was scheduled for February 28, 2012 in front of the Board of Selectmen (the “Board”).[8] Crenshaw was notified about three weeks prior to the hearing. Four days before the hearing, Crenshaw requested a postponement in order to secure counsel but Kitchen declined this request. Both Chief Moran and Kitchen were present at the hearing; Chief Moran testified while Kitchen took notes.

         After the hearing, the Board unanimously voted to terminate Crenshaw. The following reasons were listed for his termination: (1) Crenshaw's untruthful statement in his written application for firearm license, signed under the pains and penalties of perjury, in violation of Department Rules and Regulations 7.7; (2) his disqualification from carrying a firearm under Massachusetts and Federal law;[9] (3) failure to report substance dependency or use of controlled substance, in violation of Department Rules and Regulations 14.9; (4) Dr. Reade's opinion that Crenshaw's ongoing substance dependency made him unfit for duty, and Plaintiff's failure to produce evidence to the contrary; (5) insubordination in refusing to adhere to Chief Moran's written orders to contact Dr. Reade and failure to comply with her request to sign medical releases, in violation of Department Rules and Regulations 8.02; (6) The Board's finding that he testified untruthfully at the hearing when he stated that he never received Chief Moran's written orders mentioned above, in violation of Department Rules and Regulations 7.7.

         Crenshaw received a letter notifying him of his termination on March 7, 2012. He filed this action on March 5, 2015, against the Town, Chief Moran, and Kitchen, ...

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