Cristo v. Evangelidis

90 Mass.App.Ct. 585

62 N.E.3d 94

Jude CRISTO

v.Lewis EVANGELIDIS.¹

No. 15–P–91.

Appeals Court of Massachusetts, Worcester.

Argued Nov. 2, 2015.

Decided Oct. 28, 2016.

Andrew J. Abdella for the defendant.

Timothy M. Burke, Boston, for the plaintiff.

Present: AGNES, SULLIVAN, & BLAKE, JJ.

AGNES, J.

The question before us is whether the defendant, Lewis Evangelidis, sheriff of Worcester County, was entitled to judgment as a matter of law on count three of the plaintiff Jude Cristo's complaint, charging Evangelidis with a violation of 42 U.S.C. § 1983.² In particular, Cristo alleges that Evangelidis retaliated against him by terminating him from employment in the Worcester County sheriff's office (sheriff's office or department) on January 7, 2011, for exercising his rights under the First Amendment to the United States Constitution in early 2010, the year before Evangelidis took office. For the reasons that follow, we conclude that Evangelidis's motion for summary judgment, based on the defense of qualified immunity, should have been allowed because on the record before us, Cristo's speech, while related to matters of public concern, was undertaken in his capacity as an employee of the sheriff's office, and not as a private citizen.³ See Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006).

Background. We view the summary judgment record in the light most favorable to Cristo, the nonmoving party. Cristo was hired in June, 1999, as the assistant personnel director of the sheriff's office. Cristo was promoted to human resources director of the sheriff's office in February, 2006, by Guy Glodis, Evangelidis's predecessor. Shortly thereafter, Cristo was also appointed by Glodis to be the payroll director, and given other human resource duties. When, during the summer of 2009, Glodis decided not to seek reelection as sheriff, Shawn P. Jenkins assumed the role of acting sheriff.

In early 2010, Cristo expressed concerns to Jenkins, and to deputy superintendent Paul Legendre, that assistant deputy superintendent Scott Bove, a candidate for the sheriff's position, was not performing his human resource duties and was away campaigning as a candidate for sheriff for some portion of days he marked himself present at the department. Jenkins and Legendre informed Cristo that they were aware of the situation. Cristo also told Jenkins and Legendre that he personally observed Captain Jason Dickhaut, who had duties relating to the payroll for line staff at the sheriff's office, helping Bove with his campaign for sheriff during work hours, and that Dickhaut had given bumper stickers supporting Bove's candidacy to Cristo's assistant for payroll and asked her to record “missed punches” in the department's time clock system for him and others. Because Dickhaut's sporadic attendance and failure to perform his payroll duties were “causing problems with the department's ability to process the payroll in a timely manner,” Cristo brought his concerns directly to Jenkins, who supervised Dickhaut.

On Friday, February 19, 2010, Dickhaut confronted Cristo about the complaints made by Cristo about Dickhaut's campaign activities on department time and Dickhaut's interactions with human resource and payroll personnel. Dickhaut was loud and hostile. Jenkins, who was in the next office when Dickhaut confronted Cristo, told Cristo that he had heard the exchange. When asked what he was going to do about it, Jenkins reportedly laughed, and told Cristo “that he let it go on” and “to go home early.” The following weekend, Cristo prepared a five-page report on Dickhaut's violations of law and the department's own regulations, but did not submit it to Jenkins.

Cristo attended a meeting with Jenkins and Legendre on Monday, June 14, 2010. Cristo reminded them of the confrontation Dickhaut had initiated with him, and informed them about the five-page report he had prepared. They did not ask him to submit it. Cristo also brought up his ongoing concerns about Bove's campaign activities and his failure to keep accurate time records, as well as an issue about missing radios that were the property of the department. Jenkins expressed concerns that by putting things in electronic mail (e-mail) messages and writings, Cristo was making him (Jenkins) look like he was not interested in addressing these issues. Cristo told them he simply wanted these problems resolved.

On November 7, 2010, Evangelidis, as sheriff-elect, was interviewed by the Worcester Telegram and Gazette and reportedly said that it was not his intention to replace everyone then employed by the sheriff's office, that he had not yet picked anyone for the management positions, that he was willing to interview current employees, and that if they were doing their jobs well, “they should feel comfortable in the fact that they can keep the job.”

Cristo attended the inauguration ceremony for the new sheriff on January 5, 2011. Cristo approached Evangelidis and introduced himself. Evangelidis replied, “Jude Cristo?” and walked away. The following day, an article about Evangelidis's inauguration appeared in the Worcester Telegram and Gazette in which Evangelidis was quoted as saying that he “is giving employees at the jail a chance to prove themselves.” The next day, Cristo was called to a meeting with Jenkins at 3:00 P.M. Jenkins told Cristo that his position was being abolished, and that if he agreed to resign, he could work for two more weeks. Cristo declined the invitation. Jenkins then handed Cristo an envelope which he said contained Cristo's final check and termination letter.

On January 13, 2011, Cristo requested, in writing, a full accounting of what he had been paid and copies of his personnel file, medical file, and e-mails. He also inquired whether he would receive the same $2,000 severance check that other employees who had been laid off several weeks earlier had received. Cristo also sent a letter to Evangelidis appealing his termination under a department regulation. On January 14, 2011, Jenkins sent an e-mail to certain sheriff's office personnel advising them that employee records and personnel files were not to be destroyed or deleted, and that if any information was requested by Cristo, the request was to be forwarded to Jenkins or chief of staff Jason Rives. Staff were also verbally informed not to have any contact with Cristo.

On January 25, 2011, Rives sent a letter to Cristo explaining that unlike the other former employees, he was not entitled to severance pay because he was not first placed on administrative leave, and that the decision to make the payments was made by the outgoing sheriff. On February 3, 2011, Jenkins sent a letter to Cristo dismissing his appeal and informing him that he lacked the financial background to perform the duties of the new “combined position.”

On March 21, 2011, Cristo wrote to the State retirement board to inform it of a $3,000 pay raise he had received from Glodis in the summer of 2007, which was not included in the salary information provided to the retirement board by the sheriff's office. On March 29, 2011, the retirement board sent a letter to the sheriff's office requesting information about the $3,000. Jenkins responded in writing to the retirement board and stated that the $3,000 was not a salary increase, but a bonus, but did not submit “factual documentation” in support of his statement.

On April 4, 2011, Cristo was notified by the retirement board that his retirement had been approved retroactive to January 7, 2011, the date of his termination. That same day, Cristo sent a letter to Rives requesting that he be paid twenty percent of his accumulated sick leave days as of the date of his termination. On April 12, 2011, the retirement board informed Cristo that based on the information it had received from the sheriff's office, it could not add $3,000 to his salary for purposes of calculating his retirement benefit. Cristo appealed this decision. On May 16, 2011, Rives informed Cristo in writing that he would not be paid a percentage of his accumulated sick leave because Cristo had been “terminated” from his employment with the sheriff's office.

In May, 2011, the sheriff's office hired another individual to fill the newly created position of “Director of Administration and Finance/CFO,” which consolidated the various positions previously held by Cristo. Prior to joining the sheriff's office, the newly hired person had served as the part-time treasurer of the town of Barre.

Discussion. 1. Standard of review. Summary judgment is appropriate when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). A party moving for summary judgment who does not bear the burden of proof at trial demonstrates the absence of a triable issue either by submitting affirmative evidence negating an essential element of the nonmoving party's case or by showing that the nonmoving party is unlikely to submit proof of that element at trial. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991) ; Flesner v. Technical Communications Corp., 410 Mass. 805, 809, 575 N.E.2d 1107 (1991). The nonmoving party cannot defeat the motion for summary judgment by resting on its pleadings and mere assertions of disputed facts. LaLonde v. Eissner, 405 Mass. 207, 209, 539 N.E.2d 538 (1989). “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact in order to defeat a motion for summary judgment.” Pederson v. Time, Inc., 404 Mass. 14, 17, 532 N.E.2d 1211 (1989).

2. Section 1983 retaliation claim. In order to prevail on his First Amendment retaliation claim, Cristo must establish three things are more likely than not: (1) that he was speaking “as a citizen on a matter of public concern”...