Brady v. Joyce

GERARD BRADY, Plaintiff v. KEVIN JOYCE, NALDO GAGNON, and COUNTY OF CUMBERLAND, Defendants

SUPERIOR COURT CIVIL ACTION Docket No. CV-13-056

Superior Court of Maine

ENTERED: October 8, 2014

RECEIVED & FILED: October 6, 2014

October 3, 2014

STATE OF MAINE

ANDROSCOGGIN, ss

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Before the court is defendants' motion for summary judgment on all counts of plaintiff's complaints. For the following reasons, the motion is granted.

PROCEDURAL HISTORY

In September 2012, plaintiff filed a complaint with the Maine Human Rights Commission and subsequently was issued a "right to sue" letter. Plaintiff filed his complaint against defendants Joyce and Gagnon on April 12, 2013 in Cumberland County and was assigned docket number CV-13-064. The complaint includes count I: violation of Maine's Civil Rights Act; count II: defamation; count III: interference with advantageous relationship; and count IV: punitive damages.

Plaintiff filed a separate complaint against- defendant County of Cumberland on April 16, 2013 in Androscoggin County and was assigned docket number CV-13-056. The complaint includes count I: violation of Maine Whistleblower Protection Act; count II: violation of Maine Civil Rights Act; count III: defamation; and count IV: interference with advantageous relationship.

Plaintiff filed a motion to transfer the lawsuit against defendants Joyce and Gagnon to Androscoggin County and to consolidate that lawsuit with the lawsuit against County of Cumberland. The court granted plaintiff's motion to transfer venue on June 12, 2013 and granted plaintiff's motion to consolidate the two lawsuits on June 24, 2013. Defendants filed the motion for summary judgment on May 2, 2014.

BACKGROUND

Plaintiff Gerard Brady has worked for the Cumberland County Sheriff's Department for more than 30 years. (Supp. S.M.F. ¶ 1.) From 1994 until 2012, plaintiff worked as a detective in the Criminal Investigation Division (CID). (Supp. S.M.F. ¶ 4.) Plaintiff is trained to administer polygraph examinations. (Supp. S.M.F. ¶¶ 13-14.) In addition to performing polygraphs as part of his position at the Sheriff's Department, plaintiff runs a private company called Forensic Polygraph Services, which also offers polygraph examinations. (Supp. S.M.F. ¶¶ 15, 21.)

Defendant Kevin Joyce was elected Sheriff in November 2010. (Supp. S.M.F. ¶ 52.) Defendant Naldo Gagnon serves as Chief Deputy. (Supp. S.M.F. ¶ 7.) Plaintiff alleges that defendants Joyce and Gagnon directed an aggressive investigation against plaintiff to punish him for (1) reporting an incident of prisoner abuse and (2) publicly declaring that he would not support defendant Joyce in the 2010 election if another individual, Michael Edes, ran against defendant Joyce. Defendants argue plaintiff was disciplined for improperly running his private polygraph business during work hours.

Alleged Prisoner Assault

In May 2010, plaintiff saw a video of an incident that plaintiff believed depicted a corrections officer assaulting an inmate. (Supp. S.M.F. ¶ 27.) Detective John Fournier and Court Officer Scott Sutherland were also present when plaintiff saw the video. (Supp. S.M.F. ¶ 29.) After seeing the video, plaintiff remarked to Detective Fournier and Officer Sutherland, "someone is going to jail." (Supp. S.M.F. 30.) About two weeks later, plaintiff raised the incident in a CID meeting attended by two of plaintiff's supervisors, Sergeant James Estabrook and Lieutenant Donald Foss. (Supp. S.M.F. ¶¶ 8, 9, 31.) Plaintiff said CID had not been assigned to investigate the case and he did not know why nothing was being done. (Supp. S.M.F. ¶ 31; Add. S.M.F. ¶ 2.) Lieutenant Foss responded that the matter was the subject of an internal affairs investigation. (Supp. S.M.F. ¶ 32.) Within a week of that meeting, plaintiff raised the issue again with Sergeant Estabrook. (Add. S.M.F. ¶ 3.) According to plaintiff, he raised the issue a third time with Lieutenant Joel Barnes, the internal affairs investigator.¹ (Add. S.M.F. ¶ 4.) After a couple of months, plaintiff dropped the issue. (Supp. S.M.F. ¶ 39.)

Support for Michael Edes

At approximately the same time the video incident was unfolding, plaintiff learned that Mr. Edes was considering running for Sheriff in the 2010 election. (Supp. S.M.F. ¶ 46.) Plaintiff specifically remembers telling at least four coworkers, including Detective Brian Ackerman, Captain Jeff Davis, Lieutenant Foss, and Sergeant Estabrook, that plaintiff would support Mr. Edes in theelection if he ran against defendant Joyce. (Add. S.M.F. ¶ 32.) Sergeant Estabrook and Lieutenant Foss both report to defendants Joyce and Gagnon. (Add. S.M.F. ¶ 33.) According to Sergeant Estabrook and Lieutenant Foss, it was widely known around the Sheriff's office that plaintiff did not support defendant Joyce politically. (Add. S.M.F. ¶ 29-31; Opp. S.M.F. ¶ 53.) Defendants Joyce and Gagnon claim they did not know plaintiff supported Mr. Edes until this lawsuit was filed. (Supp. S.M.F. ¶¶ 53-54.)

Criminal Investigation

Defendants claim that after a review of department activities, Lieutenant Foss noticed a significant decline in the number of plaintiff's pre-employment polygraph examinations conducted for the County in 2011. (Supp. S.M.F. ¶ 56.) According to plaintiff, Lieutenant Foss instructed plaintiff to change the method he used to report his statistics for polygraph examinations before 2011 and Lieutenant Foss knew the change would lower plaintiff's numbers. (Opp. S.M.F. ¶ 56.) On February 7, 2012, Lieutenant Foss, Sergeant Estabrook, and Captain Donald Goulet met with defendants Joyce and Gagnon to discuss plaintiff's pre-employment polygraph statistics for 2011. (Supp. S.M.F. ¶ 57.) The following day, defendant Joyce placed plaintiff on administrative leave. (Supp. S.M.F. ¶ 58.) At defendant Joyce's direction, Lieutenant Foss and Sergeant Estabrook launched a criminal investigation to determine whether plaintiff was running his private polygraph business on County time. (Supp. S.M.F. ¶ 59.) According to plaintiff, defendant Joyce directed who was to interview plaintiff as part of the investigation. (Opp. S.M.F. ¶ 60.)

Lieutenant Foss and Sergeant Estabrook reached the following conclusions after the investigation. Plaintiff conducted some private polygraphsduring business hours for which he was paid by the County. (Supp. S.M.F. ¶ 62a.) Plaintiff used what was referred to in the Sheriff's Department as "unmanaged comp time" to take paid time off during which he sometimes ran his private business. (Supp. S.M.F. ¶ 69.) This comp time accrued because CID detectives are salaried employees, but sometimes worked longer hours than the standard work week. (Supp. S.M.F. ¶¶ 63-64.) For each extra hour worked, detectives would earn an hour of paid time off. (Supp. S.M.F. ¶ 65.) Plaintiff received permission from his supervisor, Sergeant Estabrook, on the days he left work early. (Supp. S.M.F. ¶ 67; Opp. S.M.F. ¶ 62a.)

The investigation further revealed that plaintiff performed one private polygraph while on a paid sick day. (Supp. S.M.F. ¶ 62b.) On one occasion, plaintiff used a County vehicle to deliver polygraph results for his business. (Supp. S.M.F. ¶ 62c.) Plaintiff's private clients would call plaintiff on his Sheriff's Department phone and he would instruct them to call him back on his private cell number. (Supp. S.M.F. ¶ 62d.)

After the investigation and at defendant Joyce's direction, Lieutenant Foss and Sergeant Estabrook met with the District Attorney to review the case. (Supp. S.M.F. ¶¶ 70-71.) The District Attorney declined to prosecute plaintiff. (Supp. S.M.F. ¶ 73.) Defendant Gagnon then transferred the case to the Maine Criminal Justice Academy, which declined to take any action. (Supp. S.M.F. ¶¶ 74-75.)

While the case was being referred to other departments, the matter was also assigned² to Lieutenant Barnes to conduct an internal affairs investigation. (Supp. S.M.F. ¶¶ 76-77.) The investigation revealed policy violations forplaintiff's use of sick time and unmanaged comp time to run his business. (Supp. S.M.F.¶ 78.) In addition, the investigation found that plaintiff failed to advise Cumberland County law enforcement agencies that contacted plaintiff about pre-employment polygraphs that the County charged less than his private company for those services. (Supp. S.M.F. ¶ 78.)

Following the internal affairs investigation, plaintiff had a predetermination hearing with defendant Gagnon on April 18, 2012. (Supp. S.M.F. ¶ 81.) Plaintiff was represented by the Union and had an attorney present at the hearing. (Supp. S.M.F. ¶ 82.) Defendant Gagnon imposed discipline by letter dated April 20, 2012, reassigning plaintiff from CID to patrol as a patrol deputy. (Supp. S.M.F. ¶¶ 83-84.) Lieutenant Barnes, the investigator, believed that plaintiff was disciplined more harshly than he deserved. (Add. S.M.F. ¶ 21.) Plaintiff grieved defendant Gagnon's decision to the County Manager, who upheld the discipline. (Supp. S.M.F. ¶ 85.) The Union pursued the case to arbitration, and an arbitration hearing was held on March 13, 2013. (Supp. S.M.F. ¶¶ 86-87.) The arbitrator overturned plaintiff's demotion. (Supp. S.M.F. ¶ 88; Opp. S.M.F. ¶ 88; Add. S.M.F. ¶ 22.)

After the arbitrator overturned the demotion, the defendant County of Cumberland terminated plaintiff's employment. (Add. S.M.F. ¶ 23.) The same arbitrator overturned the termination. (Add. S.M.F. ¶ 24.) Plaintiff returned to work on August 26, 2013. (Supp. S.M.F. ¶ 89.)

Defendants acknowledge that many Sheriff's Department employees have used unmanaged comp time for personal reasons such as running errands, attending ballgames, and drinking alcohol. (Add. S.M.F. ¶ 25.) No one else has been investigated for these instances. (Add. S.M.F. ¶ 25.) Defendant Joyce isaware of one incident involving a commander at Logan Airport who had forgotten his passport. (Add. S.M.F. ¶ 26.) A lieutenant picked up the passport at the commander's house...