Thomas v. Harrington

909 F.3d 483

Mark THOMAS, Plaintiff, Appellant,

v.Cornelius J. HARRINGTON, a/k/a Neil Harrington; Town of Salisbury; Robert St. Pierre, Defendants, Appellees,Daniel McNeil ; Eugene Scione; Richard Merrill ; Steven Sforza ; Michael Adler; Thomas Fowler; Kevin Sullivan; David L'Esperance, Defendants.

No. 18-1102

United States Court of Appeals, First Circuit.

November 28, 2018

Cary P. Gianoulis, Boston, MA, with whom John F. Tocci was on brief, for appellant.

Adam Simms, with whom John J. Cloherty III, Boston, MA, was on brief, for appellees.

Before Lynch, Stahl, and Lipez, Circuit Judges.

STAHL, Circuit Judge.

This appeal arises out of an alleged conspiracy to terminate plaintiff-appellant Mark Thomas from his position as an officer at the Salisbury Police Department ("SPD"). In 2010, Cornelius Harrington, the Salisbury town manager, hired Robert St. Pierre to investigate allegations of misconduct by the then-police chief, David L'Esperance. During the investigation, St. Pierre also uncovered evidence of alleged wrongdoing by Thomas, resulting in a follow-up investigation. Harrington terminated Thomas from his employment based on that second investigation, but an arbitrator later reversed that decision. Nevertheless, Thomas retired soon after and alleged, inter alia, that Harrington and St. Pierre conspired against him. He further alleged that Harrington violated the Massachusetts Civil Rights Act ("MCRA"), Mass. Gen. Laws ch. 12 §§ 11H, 11I, by depriving him of a protected property right — namely, his continued employment with the SPD.

Thomas has offered little evidence beyond bald speculation for the existence of a conspiracy. Moreover, he has not shown that his constitutional rights were interfered with by "threats, intimidation, or coercion," as required by the MCRA. Accordingly, and for the following reasons, we affirm the district court's grant of summary judgment.

I. Factual Background

In April 2006, Harrington hired David L'Esperance as Salisbury's new police chief. Soon after L'Esperance was hired, he promoted Thomas to detective and eventually designated him as Chief of Detectives,¹ decisions which Thomas allege created substantial jealousy among other SPD officers.

In autumn 2010, two SPD officers made allegations of misconduct against L'Esperance. The allegations reached Harrington who, on advice of counsel, placed L'Esperance on administrative leave. Harrington then reached out to St. Pierre, a retired former Chief of Police in Salem, Massachusetts, and set up a meeting to discuss the allegations.² After this discussion, on December 9, 2010, St. Pierre entered into a "Professional Services Agreement" with Salisbury to investigate the allegations against L'Esperance. Harrington did not obtain permission from the town's Board of Selectmen prior to soliciting St. Pierre's services, nor did the Board initially approve the contract. However, Harrington was not required to first obtain the permission of the Board of Selectmen before hiring an outside consultant on behalf of the town, and no member of the Board voiced an objection to Harrington's decision to retain St. Pierre's services.

Before the investigation concluded, however, L'Esperance resigned from active duty with the SPD. Thereafter, on January 24, 2011, St. Pierre tendered his investigative report to Harrington, which concluded that L'Esperance had violated numerous SPD rules. As relevant here, the report also disclosed allegations of misconduct against Thomas. Among those allegations were that Thomas (1) studied for the bar exam while on the job; (2) observed but failed to report L'Esperance pilfering evidence at crime scenes; and (3) fabricated portions of his resume for submission to the FBI in connection with his application to attend a FBI training program.

The Board of Selectmen held a meeting on January 24, 2011, at which the Board asked Harrington to contact St. Pierre to further investigate "loose ends" from the L'Esperance report, including the allegations against Thomas. The Board confirmed that request during a February 24, 2011 public meeting. At the end of that meeting, Thomas requested that SPD internal affairs conduct the investigation into him instead, but this request was denied.

Pursuant to the Board of Selectmen's instruction, Harrington once again reached out to St. Pierre and asked that he conduct the investigation into Thomas. St. Pierre initially replied that, because Thomas was not a "ranking officer," the SPD could conduct the investigation internally. However, St. Pierre eventually acceded to the request and entered into another Professional Services Agreement on February 28, 2011. The then-acting SPD chief, Kevin Sullivan, requested that Detective Steven Sforza be permitted to help with the investigation. On May 24, 2011, Sullivan's successor as acting SPD chief, Richard Merrill, placed Thomas on paid administrative leave during the pendency of the investigation.

During the investigation into Thomas, St. Pierre interviewed several municipal and SPD employees. One SPD officer, Daniel McNeil, testified that during his recorded interview, St. Pierre turned off the tape recorder and said something to the effect of "[this] is not where I'm going with this or what I'm looking for." McNeil understood this comment to mean that he was "being obviously directed" by St. Pierre to give negative information about Thomas.

Thomas separately contends that, during the L'Esperance investigation, Sforza illegally taped a conversation with him while at the SPD station in December 2010. This allegation came to light while Sforza was assisting with the Thomas investigation and, although Sforza denied the claim,³ he was removed from the Thomas investigation thereafter. Despite that removal, Thomas alleges that Sforza continued communicating with St. Pierre, a claim that appellees deny.

During their respective depositions, Harrington and St. Pierre testified that Harrington's role in the Thomas investigation was limited. For example, both testified that Harrington did not provide St. Pierre with questions to ask witnesses or tell St. Pierre or Sforza whom to interview. In addition, Harrington was never given a copy of St. Pierre's investigatory notes.⁴ Appellees claim that Harrington also did not give St. Pierre advice on what "issues [St. Pierre] should investigate." Thomas disputes that claim, pointing to several communications between Harrington, St. Pierre, and town counsel relating to the investigation. Although those communications largely summarized the progress of St. Pierre's investigation, in one email concerning Thomas's prior disciplinary history, town counsel stated "[Thomas] may have just shot himself in the foot."

On August 1, 2011, St. Pierre delivered a draft copy of his investigative report to Harrington. Harrington made several changes to the report, and submitted it to the Board of Selectmen on September 28, 2011. That same day, Harrington sent a letter to Thomas notifying him that a disciplinary hearing would be held regarding the contents of the report. In addition, in response to a Freedom of Information Act ("FOIA") request, Harrington forwarded a copy of the report to a reporter with the Newburyport Daily News, a local newspaper.⁵ The report was published the following day. A copy was also anonymously forwarded to the Massachusetts Board of Bar Overseers, an action Thomas attributes to Harrington.⁶

The disciplinary hearing was held on December 15, 2011, during which no witnesses testified, and the town simply entered St. Pierre's report into the record. Harrington issued a decision on February 8, 2012, upholding two of the four charges against Thomas and dismissing the other two. Specifically, Harrington found that Thomas had (1) studied for the bar exam while on duty; and (2) falsified his resume in the application to the FBI. He then terminated Thomas's employment with Salisbury. However, on October 31, 2012, an arbitrator reversed the decision, finding that there was insufficient evidence to support Thomas's termination. The SPD reinstated Thomas in December 2012 and, in accordance with the arbitrator's order, provided him with full back pay.

Thomas testified that soon after his reinstatement, the new permanent police chief, Thomas Fowler, told him that many SPD officers "did not want him back." In addition, Fowler placed certain conditions on Thomas's ability to moonlight as a practicing attorney, expressing the need to avoid conflicts of interest. Specifically, Fowler required that Thomas refrain from practicing criminal defense and labor and employment law. He also required Thomas to decline any cases involving either the SPD or Salisbury. Emails from that time show that Fowler notified Harrington that he was limiting Thomas's law practice, though the parties dispute whether Harrington played an active role in Fowler's decision-making.

On March 24, 2014, Thomas sent Fowler a letter stating, "I am in fear for my life at work and truly believe that many of the officers and town employees will retaliate with grave circumstances[.]" As a result of this letter, Fowler placed Thomas on paid administrative leave. Approximately two weeks later, Fowler received a letter from Thomas's psychologist stating that Thomas was being treated for certain medical conditions and recommending that Thomas "take a leave of absence until further notice." Fowler then converted Thomas's administrative leave to long-term sick leave. Thomas never returned to active duty, and eventually retired from the SPD on November 23, 2015.

II. Procedural Background

On September 29, 2014, Thomas filed this suit in the District of Massachusetts against Harrington, St. Pierre, Salisbury, and eight other current and former SPD officers. His complaint included 12 counts, including claims under the United States and Massachusetts Constitutions, Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, §§ 11H, 11I, Massachusetts Whistleblower Statute, Mass. Gen. Laws ch....