Vickowski v. Hukowicz

201 F.Supp.2d 195

Jeffrey A. VICKOWSKI, Plaintiff, v. Dennis HUKOWICZ, individually, and in his official capacity as Chief of Police for the Town of Hadley Police Department; Glenn E. Clark, in his official capacity as Chairman of the Board of Selectmen for the Town of Hadley; and The Town of Hadley, Defendants.

No. Civ.A. 97-30252-MAP.

United States District Court, D. Massachusetts.

March 13, 2002.

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Joan A. Antonino, Charles J. DiMare, Antonino & DiMare, Amherst, MA, for Jeffrey A. Vickowski, plaintiff.

Joseph L. Tehan, Jr., Kopelman & Paige, P.C., Boston, MA, Katharine I. Goree, Kopelman & Paige, Boston, MA, for Dennis Hukowicz, Glenn E. Clark, Town of Hadley, defendant.

MEMORANDUM REGARDING REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Docket No. 77)

PONSOR, District Judge.

I. INTRODUCTION

In this case, the plaintiff, Jeffrey A. Vickowski ("plaintiff"), a former police officer in the Town of Hadley, brought suit against the Town of Hadley ("Hadley"), Chief of Police Dennis Hukowicz ("Chief Hukowicz"), and the Chairman of the Hadley Board of Selectmen (the "Board"), Glenn E. Clark ("Clark"), alleging that he was both retaliated against, and discriminated against, in violation of the Equal Protection Clause and the First Amendment of the United States Constitution. Plaintiff claimed, in essence, that he suffered disparate treatment and eventual termination because he filed a grievance in 1989 and a lawsuit in 1990 against defendants.

Defendants filed a motion for summary judgment, arguing in essence that plaintiff's contentions, even if accepted, described little more than a garden variety employment dispute, not a matter of "public concern" worthy of constitutional protection. Defendants' motion was referred to Magistrate Judge Kenneth P. Neiman, who agreed with defendants and issued a Report and Recommendation to the effect that the motion should be allowed. That Report and Recommendation is attached as Exhibit A.

Plaintiff has filed an objection to the Report and Recommendation. Since this court's de novo review reveals that Magistrate Judge Neiman's analysis was correct, the court will adopt his recommendation and allow defendants' motion.

II. FACTUAL AND PROCEDURAL BACKGROUND

The factual background and prior proceedings are clearly laid out in Magistrate Judge Neiman's Report and Recommendation at pages 2-7, and need not be repeated here. However, since the pivotal issue in this case is whether plaintiff's activities touched upon a matter of "public concern," and were therefore protected by the First Amendment, a few words regarding the facts relevant to that issue are necessary.

Plaintiff's 1989 Notice of Claim and his 1990 Complaint (Docket 69, Exhibits I and J) reveal that plaintiff charged the Town of Hadley, Chief Hukowicz, and three members of the Board with various violations of the federal and state constitutions, and of state law. As is explained more fully in the Report and Recommendation, plaintiff was disciplined and suspended for two weeks without pay for removing two stereo speakers from the Hadley Police Department garage. The facts surrounding this discipline were made public. Plaintiff appealed the discipline and suspension to the Board, but in the end was only offered one week of back pay. He thereafter filed a lawsuit, which was eventually settled for $21,000.

In the 1989 Notice of Claim and the 1990 Complaint, plaintiff contended that the Board's decision to discipline him, and its subsequent public disclosure of its action, violated his constitutional rights to due process, privacy, and freedom of expression. The Notice of Claim and Complaint, additionally, charged Chief Hukowicz and the Board with misconduct in violation of state law and plaintiff's state and federal constitutional rights. Following the settlement of the 1990 lawsuit, Vickowski alleges he was harassed and eventually terminated in retaliation for his grievance and lawsuit. This retaliation, plaintiff contends, violated his right to petition the government for redress under the First Amendment.

III. DISCUSSION

In order to proceed with this civil rights claim, as Magistrate Judge Neiman noted, plaintiff must show as a threshold matter that his 1989 Notice of Claim or 1990 lawsuit touched on a matter of "public concern." The seminal case in this area is the Supreme Court's decision in Pickering v. Board of Education, 391 U.S. 563, 569, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). As the Court later noted, Pickering reflected "the common-sense realization that government offices could not function if every employment decision became a constitutional matter." Connick v. Myers, 461 U.S. 138, 143, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The Court has since explained that "the government as employer has far broader powers than does the government as sovereign." Waters v. Churchill, 511 U.S. 661, 671, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994). "The government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer." Id., at 675, 114 S.Ct. 1878.

The Court's concern about proper government functioning limits a plaintiff's rights under both the petition and speech clauses of the First Amendment. As Magistrate Judge Neiman noted, the Court of Appeals made it clear in Boyle v. Burke, 925 F.2d 497 (1st Cir.1991), that the petition clause, like the speech clause, requires an employee's legal grievance to touch on a matter of "public concern" before it can form the basis for a civil rights suit. Id. at 505.

Plaintiff argues, in essence, that his 1989 grievance and 1990 lawsuit touched on matters of public concern for two reasons. First, they alleged violations of the federal constitution. Second, they accused public officials of malfeasance.

The first argument flies in the face of existing law. The very point of the "public concern" requirement is to protect against the "attempt to constitutionalize [an] employee grievance...." Connick, 461 U.S. at 154, 103 S.Ct. 1684. If merely filing a § 1983 lawsuit against a government official were sufficient to constitute speech on a matter of public concern, the "public concern" requirement would largely evaporate. As the Supreme Court has noted, "government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment." Id. at 146, 103 S.Ct. 1684. This latitude does not disappear simply because a public official is accused of constitutional wrongdoing.

Plaintiff's second argument, that his grievances touched on matters of public concern because they accused public officials of malfeasance, derives from the First Circuit's decision in O'Connor v. Steeves, 994 F.2d 905 (1st Cir.1993). The plaintiff in O'Connor criticized one member of the local Board of Selectmen for "purchasing goods for personal use through [a government] account, which was not subject to the 5% Massachusetts sales tax." Id. at 908. The First Circuit held that these "revelations directly implicated a topic of concern to the community — official misconduct by an incumbent elected official." Id. at 915. The O'Connor plaintiff's speech had a "direct bearing" on a local official's "fitness for elective office." Id. Plaintiff argues that in the same way, his grievances articulated "official misconduct" by public officials that had a "direct bearing" on the "fitness" of those officials for "public office."

This comparison must be rejected. Any governmental employee who files a § 1983 suit against an elected official may, of course, argue that the alleged constitutional violation constituted "official misconduct" and showed that the supervisor was not "fit for public office." In this case, however, plaintiff's grievances, though wrapped in constitutional clothing, were based upon matters of personal concern.

Plaintiff complained, at bottom, that the way Hadley officials handled his own discipline and suspension was unfair. While this complaint may or may not have had merit, the basis of the complaint was a personal grievance; plaintiff did not believe that he should have been suspended, and he did not believe the discipline should have been made public. But, in a case like this, an employee's speech can form the basis of a civil rights suit only "when the employee spoke `as a citizen upon matters of public concern' rather than `as an employee upon matters only of personal interest.'" United States v. National Treasury Employees Union, 513 U.S. 454, 466, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995) (emphasis in original), quoting Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Here, without question, plaintiff spoke "as an employee" upon a matter only of personal interest. See Padilla-Garcia v. Guillermo Rodriguez, 212 F.3d 69, 78-79 (1st Cir.2000) (noting public comment that mayor failed to comply with regulations by not publicly announcing new projects and respective budget allotments was "easily distinguishable from self-serving statements that promote a personal interest.").

A final matter should be noted. Government employee speech or litigation not touching on matters of public concern does not always — necessarily or automatically — fall entirely outside the purview of the First Amendment. Connick, 461 U.S. at 147, 103 S.Ct. 1684; O'Connor, 994 F.2d at 912. The requirement that such activity touch on matters of public concern is properly considered a jurisprudential guideline; in "the most unusual circumstances," a federal court may be "the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior." 461 U.S. at 147, 103 S.Ct. 1684. This is not such a case. To permit this action...