Campagna v. Com. of Mass. Dept. of Env. Prot.

Page 120

206 F.Supp.2d 120

Paul CAMPAGNA, Plaintiff, v. COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION; David Howland, acting under color of law in his individual capacity; Deirdre Doherty Cabral, acting under color of law in her individual capacity; Mary Holland, acting under color of law in her individual capacity; Edward Kunce, acting under color of law in his individual capacity; Alan Weinberg, acting under color of law in his individual capacity; and David B. Struh, acting under color of law in his individual capacity, Defendants.

No. CIV.A.01-30077-MAP.

United States District Court, D. Massachusetts.

June 7, 2002.

Caroline Carrithers, Law Office of Caroline Carrithers, Amherst, MA, for Plaintiff.

Timothy M. Jones, Attorney General's Office, Springfield, MA, for Defendants.

MEMORANDUM REGARDING DEFENDANTS' MOTION TO DISMISS AMENDED COMPLAINT

(Docket No. 16)

PONSOR, District Judge.

I. INTRODUCTION

Plaintiff Paul Campagna ("plaintiff"), an employee of the Massachusetts Department of Environmental Protection ("DEP"), has brought suit under 42 U.S.C. § 1983, the Massachusetts Civil Rights Act, and under Massachusetts common law against the DEP and five of plaintiff's co-employees, David Howland ("Howland"), Deirdre Doherty Cabral ("Cabral"), Mary Holland ("Holland"), Edward Kunce ("Kunce"), Alan Weinberg ("Weinberg"), and David Struh ("Struh")(together "defendants"). Plaintiff contends that as a result of a lawsuit he brought against DEP in 1992, he has been harassed in violation of his right to petition the Government for redress under the First Amendment, has suffered disparate treatment in violation of his right to Equal Protection under the Fourteenth Amendment, and has been defamed. Defendants have moved to dismiss for failure to state a claim and lack of subject-matter jurisdiction. For the reasons discussed below, the motion to dismiss will be allowed.

II. STANDARD OF REVIEW

When reviewing a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), the court must "accept as true the well-pleaded factual allegations of the complaint, draw all reasonable inferences therefrom in the plaintiff's favor and determine whether the complaint, so read, sets forth facts sufficient to justify recovery on any cognizable theory." Martin v. Applied Cellular Technology, Inc., 284 F.3d 1, 6 (1st Cir.2002). Similarly, review of a motion to dismiss for lack of subject-matter jurisdiction under Fed.R.Civ.P. 12(b)(1) requires the court to "construe the complaint liberally, treating all well-pleaded facts as true and drawing all reasonable inferences in favor of the plaintiffs." Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir.1998). However, "[b]ecause federal courts are courts of limited jurisdiction, federal jurisdiction is never presumed. Instead, the proponent — here, the plaintiff[] — must carry the burden of demonstrating the existence of federal jurisdiction." Id. On no issue will the court "credit conclusory assertions, subjective characterizations, or `outright vituperation.'" Barrington Cove Ltd. P'ship v. Rhode Island Hous. & Mortgage Fin. Corp., 246 F.3d 1, 5 (1st Cir.2001), quoting Coyne v. City of Somerville, 972 F.2d 440, 444 (1st Cir.1992).

III. FACTUAL AND PROCEDURAL BACKGROUND

According to the amended complaint, plaintiff was employed by DEP as an Environmental Engineer in the Bureau of Waste Site Management in 1985, and was soon promoted to the position of "EE III." (Docket 3 at 4). Plaintiff hoped for an additional promotion to "EE IV," but was passed over while "less qualified, but more politically connected candidates were promoted." Id.

In 1992, plaintiff quit DEP for a position with the federal government, but immediately re-applied when a position for which he was qualified was announced. Id. However, Howland, a defendant and DEP employee in charge of filling the position, refused to hire plaintiff. Howland said that plaintiff "was less qualified than the candidate Howland supported." Id.

Plaintiff sued, "claiming that, as a Veteran of the Vietnam War, he was entitled to preferential hiring." Id. According to the plaintiff, "the court agreed with plaintiff Campagna and ordered the DEP to place him in the position unless there was another, better qualified candidate who was also a veteran." Id. at 4-5. DEP appealed, and the parties eventually settled in June 1995, with plaintiff "accept[ing] a different, less desirable position." Id. at 5.¹

No adverse action is alleged from the time of settlement in June, 1995, until October, 1997. During this twenty-eight month period plaintiff ran an after-hours business from his home "designing and monitoring septic systems in Western Massachusetts." Id. In April, 1997, plaintiff was hired by a customer in Westfield, Massachusetts whose septic system had failed a "Title V" inspection performed by another inspector, one "Mr. Lally" ("Lally"). Id. Lally had determined that the customer's septic system was installed too close to ground water and had an unsealed "weep hole" in the septic tank. Id. at 5-6.

Plaintiff reevaluated the system and determined that Lally had been wrong on both counts. Id. at 6. Accordingly, plaintiff contacted the Westfield authorities and advised them to reevaluate the system. Id. Daniel Reardon ("Reardon"), a member of the Westfield Board of Health, notified DEP of plaintiff's communication. Id. at 6.

Sometime later, in October 1997, plaintiff "actively supported Timothy Maginnis in his appeal of an enforcement action brought against Mr. Maginnis in October 1997." Id. at 5. Like the 1992 lawsuit, this "active support" of Timothy Maginnis ("Maginnis") allegedly gave defendants cause to harbor a grudge against plaintiff and eventually to retaliate against him.

Meanwhile, on October 11, 1997, defendant Cabral, a DEP employee, reinspected the Westfield site, along with Reardon and another Title V inspector, David Recoulee ("Recoulee"). Id. at 6. Cabral agreed with Lally, the first inspector, and found that the septic system was built too close to groundwater. Id. She concluded that plaintiff's opinion was invalid, and instructed Recoulee "to fail the system." Id. at 6-7.

According to the complaint, plaintiff's supposed error in reviewing Lally's work at the Westfield site gave defendants the chance to act on the grudge that they had been nursing against plaintiff. Cabral instituted an "enforcement action" against plaintiff, an administrative proceeding under state regulations by which the DEP could sanction incompetent or negligent inspectors. According to the complaint:

Cabral, under the direction of the other defendants, and without first sending the plaintiff a Letter of Non-Compliance, charged plaintiff Campagna with two willful violations of DEP regulations and statutes pertaining to Title V, resulting from inaccurately estimating the depth of groundwater and neglecting to complete the requisite form.

Id. at 7. On August 28, 1998, this process apparently resulted in a finding that plaintiff had, in fact, (1) inaccurately estimated the groundwater depth; and (2) neglected to complete a required form. As a result of these findings, "defendants fined plaintiff $1,500 for two willful violations of Title V violations [sic]." Id. at 8.

Plaintiff contends that the two findings that purported to justify the fine against him were either incorrect or unfair. First, he alleges that his groundwater depth reading was accurate, and that Lally's and Cabral's calculations were wrong. Allegedly, "[d]efendant Cabral, under the direction of the other defendants, ignored evidence . . . validating plaintiff Campagna's estimate of the average ground water level." Id. at 8. Moreover, Cabral, according to the complaint, was inexperienced and performed her inspection incompetently. Id.

Second, according to the complaint, even if plaintiff failed to complete "the requisite form" properly, Title V's rule requiring an inspector to do this was arbitrarily enforced. Allegedly, both Lally and Recoulee also failed to complete the form properly in conjunction with their inspections of the Westfield property, but neither was charged with violating the rule. Id. at 7. Allegedly, only three other inspectors have been the subjects of enforcement actions by DEP's Western Regional Office, and one of those did not receive a fine. Id. at 9-10.²

Next, the complaint alleges that defendants further injured plaintiff by publicizing the false charges.

The defendants issued a press release detailing their charges against plaintiff Campagna. In the press release, defendant Commissioner David B. Struh falsely claimed plaintiff Campagna had "cheated a customer and left the environment unprotected." The defendants sent a copy of this press release to the Boards of Health in the towns in which plaintiff Campagna had worked. Further, the defendants reported plaintiff Campagna to the Board of Registration for Sanitarians. An article detailing the Department's disciplinary actions against plaintiff Campagna for Title V violations was placed on the Department's web site in August 1998. It remained on the web page until September August [sic] 2000.

Id. at 8. As a result of this negative publicity, plaintiff was allegedly forced to close his after-hours inspection business. Id.

Plaintiff appealed the DEP enforcement action and the fine. Id. This appeal allegedly provided a third reason for defendants' retaliation. To punish plaintiff for appealing,

Cabral instructed staff at the DEP's Western Regional Office not to talk to the plaintiff about the case. Defendant Weinberg advised plaintiff Campagna not to talk to other DEP staff members at the Springfield regional office about his case and even forbade him to visit other areas of the building without permission to prevent him from discussing his case with fellow DEP employees.

Id. at 9.

On November 1, 2000, an administrative judge reduced plaintiff's fine to $100, and,...