Slattery v. Town of Framingham

KEVIN J. SLATTERY, Plaintiff, v. TOWN OF FRAMINGHAM, et al., Defendants.

Civil Action No. 17-cv-11187-IT

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

November 9, 2020

MEMORANDUM & ORDER

TALWANI, D.J.

Plaintiff Kevin Slattery, a former Deputy Chief with the Framingham Police Department ("FPD"), brought this action against the Town of Framingham¹; Kenneth Ferguson, Chief of the FPD, in his individual capacity; and Steven Trask, Acting Chief of the FPD, in his individual capacity. Compl. [#1]. Plaintiff alleges that Chief Ferguson, Acting Chief Trask, and Framingham retaliated against him for his protected speech in violation of 42 U.S.C. § 1983 (Counts I-III) and that Framingham retaliated against him in violation of the Massachusetts Whistleblower Act ("MWA"), Mass. Gen. Laws ch. 149, §§ 185 et seq. (Count IV). He further alleges that Trask and Framingham discriminated against him based on his age, in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 (Counts V-VI), and the Massachusetts anti-discrimination statute, Mass. Gen. Laws ch. 151B (Counts VII-VIII), and based on his disability, in violation of the Americans with Disabilities Act of 1990 ("ADA"),42 U.S.C. § 12101 et seq. (Counts IX-X) and Mass. Gen. Laws ch. 151B (Counts XI-XII). And, finally, he alleges that Trask and Framingham violated his right to privacy under the Massachusetts privacy act, Mass. Gen. Laws ch. 214, § 1B (Counts XIII-XIV) and the Massachusetts fair information practices act, Mass. Gen. Laws ch. 66A, § 2 (Count XV).

Presently before the court are Framingham's Motion for Summary Judgment [#49] and Ferguson and Trask's Motion for Summary Judgment [#51]. For the following reasons, Framingham's motion is GRANTED, and Ferguson and Trask's motion is DENIED IN PART as to the claim brought against Trask under the Massachusetts privacy act (Count XIII) and GRANTED IN PART as to all other claims.

I. Standard of Review

Under Rule 56, summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in favor of the non-moving party . . . [and] [a] fact is material if it has the potential of determining the outcome of the litigation." Baker v. St. Paul Travelers, Inc., 670 F.3d 119, 125 (1st Cir. 2012) (internal citation omitted). When reviewing a motion for summary judgment, the court must take all properly supported evidence in the light most favorable to the non-movant and draw all reasonable inferences in the nonmovant's favor. Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). The court properly "give[s] no heed to speculative, unsupported, or unreasonable conclusions." Showtime Entm't, LLC v. Town of Mendon, 769 F.3d 61, 69 (1st Cir. 2014). The moving party is responsible for identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absenceof a disputed material fact, the burden shifts to the non-moving party to set forth "specific facts showing there is a genuine issue for trial." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 256 (1986).

II. Factual Background

A. Key Players

Plaintiff was hired as a patrolman with the FPD in 1985 and rose through the ranks from sergeant to lieutenant and eventually to Deputy Chief in 2013. Defendants' Statement of Material Facts ("Defs' SOF") ¶ 1 [#53]²; Plaintiff's Statement of Material Facts to Which There Is a Genuine Issue ("Pl's SOF") ¶ 2 [#60]. As Deputy Chief, Plaintiff had a wide range of managerial responsibilities, including oversight of the Detective and Narcotics Units. Pl's SOF ¶ 4, 7 [#60]. Among other things, his duties required him to "insure that the integrity of the department [was] not compromised," to "supervise the daily activity of Departmental personnel," and to "monitor the quality of work performed for adherence to acceptable policing standards." Deputy Chief Job Description 4-8 [#1-9]. He also had authority to discipline subordinate officers in his chain of command for "violations of department rules, policies, orders, or procedures, not to exceed a suspension without compensation for five (5) days, and if necessary, with a recommendation to the Chief of Police that additional or greater discipline be imposed." Defs' SOF ¶ 28 [#53]. Plaintiff retired from the FPD on April 5, 2017. Id. at ¶ 88.

Defendant Ferguson joined the FPD in the same year as Plaintiff, was appointed Chief of Police in 2013, and retired in April 2018. Defs' SOF ¶ 2-3 [#53]. He was succeeded as Chief of Police by Defendant Trask, who joined the FPD in 1987 and had previously served as ActingChief when Defendant Ferguson was on sick leave in late 2016 through early 2017. Id. at ¶ 3-4; Madonna Report 6 [#60-44].

In addition to the parties, two other members of the FPD play important roles in the events at issue here. Sergeant Scott Brown and Officer Matthew Gutwill were, at all times relevant, members of the FPD Narcotics Unit who worked in a dual capacity as officers with a Drug Enforcement Agency ("DEA") task force. Moore Report 2 [#53-6]. Sergeant Brown was also the president of the Framingham Police Superior Officers Association ("Union"). Madonna Report 4 [#60-44].

This litigation takes place against a backdrop of intense "distrust and dysfunction" within the FPD, which has been "embroiled in a number of disputes between and among its officers and command staff" as well as "between the unions and the administration." Id. The court takes judicial notice that this is the third case in this session to emerge out of these ongoing conflicts. See Gutwill v. City of Framingham, No. 1:16-CV-12191-IT (D. Mass.); Stuart v. City of Framingham, No. 1:16-CV-12559-IT (D. Mass.).

B. Alleged Whistleblowing

In 2011, Sergeant Brown was the defendant in a criminal trial, following allegations that he had brandished a firearm at civilians. Defs' SOF ¶ 2-3 [#53]; Pl's Depo. 44-45 [#53-3]; Moore Report 3 [#53-6]. Plaintiff, then a lieutenant, was involved in the investigation and testified against Brown, who was ultimately acquitted. Moore Report 3 [#53-6].

That same year, Plaintiff began to investigate the alleged wrongful conviction of a childhood acquaintance, Kevin O'Loughlin. Defs.' SOF ¶ 8 [#53]; Pl's Depo. 129 [#60-1]. The investigation resulted in a successful motion for a new trial in 2015, and the district attorneysubsequently filed a nolle prosequi. Pl's Depo. 129-30 [#60-1]. Plaintiff received an award for his work on the case. Id. at 130.

After he was promoted to Deputy Chief in 2013, Plaintiff investigated several alleged improprieties within the Detective and Narcotics Units, over which he had supervisory authority. Pl's SOF ¶ 4, 7 [#60]. In 2015, he became aware that a detective in the Narcotics Unit had allegedly failed to follow protocol when paying and tracking money spent on confidential informants. "Buy Funds" Email 10/2/15 [#60-7]; DeRosa Emails 5/2/16 3 [#60-9]. Plaintiff also investigated an alleged inappropriate relationship between that same detective and a confidential informant, as well as a possible conflict of interest between the detective and Attorney Brian Simoneau, Assistant to the Chief of Police. DeRosa Emails 5/2/16 3 [#60-9]; Defs' SOF ¶ 8 [#53]. He was additionally involved in investigating a theft by an officer from the FPD evidence room and an incident in which an FPD lieutenant allegedly told a subordinate to throw a suspect on the train tracks. Dubeshtar Emails 10/1/15 [#60-8]; Defs' SOF ¶ 8 [#53]; Pl's Depo 551 [#60-1]. He made at least some of these issues known to the Middlesex District Attorney's Office. DeRosa Emails 5/2/16 2-3 [#60-9].

C. Conflicts with Officer Gutwill and Sergeant Brown

On January 29, 2016, Plaintiff notified Officer Gutwill that Gutwill was being rotated off the DEA taskforce. Defs' SOF ¶ 14 [#53]. Gutwill accused Plaintiff of lying about the reason for the rotation, then called Chief Ferguson and claimed that Plaintiff had perjured himself in his testimony against Sergeant Brown in the 2011 criminal case. Email to HR 2/6/16 [#53-4]. Plaintiff reported Gutwill to Human Resources for bullying and harassment several days later, id., and Gutwill, in turn, complained that Plaintiff had rotated him in retaliation for reporting corruption within the FPD. Moore Report 2-3 [#53-6].

On March 22, 2016, Sergeant Brown called Chief Ferguson to express his support for Gutwill's retaliation claim. Id. at 2. Ferguson informed Plaintiff of the conversation, and Plaintiff called Brown the next day. Id. at 3. The conversation grew heated, and Plaintiff accused Brown of spreading false information about him and trying to turn other members of the FPD against him. Defs' SOF ¶ 17-18. After the call, Brown filed a complaint against Plaintiff with Human Resources, and Plaintiff complained about Brown to both Chief Ferguson and Human Resources. Id. at ¶ 17, 20. Plaintiff also requested that Framingham provide him with counsel, given the gravity of the accusations against him. Request for Counsel 3/25/16 [#60-51]. Framingham hired Attorney Julie Moore to investigate the cross-complaints. Defs' SOF at ¶ 21.

D. First Sick Leave and Accommodations

On March 28, 2016, Plaintiff took a sick leave of absence due to Lyme disease. Id. at ¶ 39-40. He was medically cleared to work half days as of April 20, 2016, and the FPD granted him that accommodation. Id. at ¶ 40-42.

E. "Let Him" Statement and Administrative Leave

Shortly after he returned, on April 25, 2016, Plaintiff had a conversation with then-Deputy Chief Trask and Lieutenant Blaise Tersoni about whether Lieutenant Vincent Stuart might be interfering with an investigation into an incident concerning...