Wagner v. City of Holyoke

241 F.Supp.2d 78

Robert WAGNER and Margaret Wagner, Plaintiffs, v. CITY OF HOLYOKE, Daniel Szostkiewicz, individually, and in his official capacity as Mayor of the City of Holyoke, Marc Cournoyer, individually, and in his official capacity as Chief of Police for the City of Holyoke Police Department, Stephen Donoghue, Arthur Monfette, Arthur Therrien, International Brotherhood of Police Officers, Local 409 of the International Brotherhood of Police Officers, and Local 388 of the International Brotherhood of Police Officers, Defendants

No. CIV.A. 98-30170-MAP.

United States District Court, D. Massachusetts.

January 24, 2003.

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Stewart T. Graham, Jr., Hampden, MA, Bonnie G. Allen, Heisler, Fields & Feldman, Springfield, MA, for Robert Wagner, Margaret Wagner.

Harry L. Miles, John J. Green, Jr., John H. Fitz-Gibbon, Green, Miles, Lipton, White & Fitz-Gibbon, Northampton, MA, for City of Holyoke, Daniel Szostkiewicz, Mark Cournoyer, Dennis Egan.

John C. Sikorski, Robinson, Donovan, Madden & Barry, Springfield, MA, Harry L. Miles, John J. Green, Jr., John H. Fitz-Gibbon, Green, Miles, Lipton, White & Fitz-Gibbon, Northampton, MA, for Stephen Donoghue.

Michael R. Salvon, National Assoc. of Government Employees, Springfield, MA, John J. Green, Jr., John H. Fitz-Gibbon, Green, Miles, Lipton, White & Fitz-Gibbon, Northampton, MA, for Arthur Monfette.

Skoler, Abbott, Hayes & Presser, Springfield, MA, Harry L. Miles, John J. Green, Jr., John H. Fitz-Gibbon, Green, Miles, Lipton, White & Fitz-Gibbon, Northampton, MA, Christopher M. Browne, International Brotherhood of Police Officers, Springfield, MA, for Arthur Therrien.

MEMORANDUM REGARDING PLAINTIFFS' AND DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

(Docket Nos. 137, 142)

PONSOR, District Judge.

I. Introduction

Plaintiff Robert Wagner ("Wagner" or "plaintiff), a sergeant with the City of Holyoke Police Department, has charged the City of Holyoke, its former Mayor, two former police chiefs and other defendants with orchestrating a campaign of retaliation against him for disclosing to certain public bodies, and for discussing publicly, alleged misconduct within the department. His wife, Margaret Wagner, is a co-plaintiff on one count, claiming a loss of consortium.

The ten-count complaint asserts the following claims: violation of the First and Fourteenth Amendments, 42 U.S.C. § 1983 (Count One); violation of the Massachusetts Civil Rights Act, Mass. Gen Laws ch. 12, § 11I (Count Two); violation of the Massachusetts Whistleblower Statute, Mass. Gen. Laws ch. 149, § 185 (Count Three); common law unlawful and malicious interference with an employment contract (Count Four); common law intentional infliction of emotional distress (Count Five); common law breach of duty of fair representation (Count Six); entitlement to a declaratory judgment to the effect that certain policies and regulations of the Holyoke Police Department violate the Massachusetts Declaration of Rights and the United States Constitution (Count Seven); infringement of the right to privacy in violation of Mass. Gen. Laws ch. 214, § 1B (Count Eight); common law defamation (Count Nine); and, by Margaret Wagner, common law loss of consortium (Count Ten).

The targets of the lawsuit are Wagner's employer, the City of Holyoke; Daniel Szostkiewicz ("Szostkiewicz"), the former Mayor of Holyoke; Marc Cournoyer ("Cournoyer"), the former Chief of Police of the Holyoke Police Department; Stephen Donoghue ("Donoghue"), another former Chief of Police of the Holyoke Police Department; Wagner's coworker and former president of Local 388 of the International Brotherhood of Police Officers, Arthur Therrien ("Therrien"); the International Brotherhood of Police Officers ("the International"); Local 409 of the International Brotherhood of Police Officers ("Local 409") and Local 388 of the International Brotherhood of Police Officers ("Local 388") (together "defendants").¹

Defendants have moved for summary judgment on Counts One, Two, Three, Eight, and part of Nine. Plaintiffs have moved for partial summary judgment against the defendants City of Holyoke, Szostkiewicz, Cournoyer, and Therrien with respect to retaliation claims contained in Counts One, Two, Three, Four, Five, Seven, and Ten and with respect to their claim of unconstitutional application of Holyoke Police Department Regulations 1.24, 1.26, and 1.30.

Subsequent to the filing of memoranda on this motion, the First Circuit issued its opinion in Dirrane v. The Brookline Police Department, 315 F.3d 65 (1st Cir.2002). At oral argument, counsel had the opportunity to address the impact of Dirrane. Based largely on this recent authority, the court will allow most, but not all, of defendants' motion for partial summary judgment. The plaintiffs' motion will be denied.

II. Standard of Review

Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). A "genuine" issue is one that reasonably could be resolved in favor of either party, and a material fact is "one that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 411 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must view all evidence in the light most favorable to the nonmoving party, "drawing all reasonable inferences in that party's favor." Thomas v. Eastman Kodak Co., 183 F.3d 38, 42 (1st Cir.1999), cert. denied, 528 U.S. 1161, 120 S.Ct. 1174, 145 L.Ed.2d 1082 (2000).

Once the moving party has asserted that no genuine issue of material fact exists, the burden is on the opposing party to point to specific facts demonstrating that there is, indeed, a trialworthy issue. National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995), cert. denied 515 U.S. 1103, 115 S.Ct. 2247, 132 L.Ed.2d 255 (1995). Not every genuine factual conflict, of course, necessitates a trial. "It is only when a disputed fact has the potential to change the outcome of the suit under the governing law if found favorably to the nonmovant that the materiality hurdle is cleared." Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445, 448 (1st Cir.1997) (citation omitted). At bottom, matters of law are for the court to decide at summary judgment. Blackie v. Maine, 75 F.3d 716, 721 (1st Cir.1996).

III. Factual History

The facts below are viewed in the light most favorable to the plaintiffs; all reasonable inferences are drawn in their favor.

Wagner joined the Holyoke Police Department on October 10, 1975. On January 3, 1982, he was promoted to the rank of sergeant.

In July 1991, Wagner was elevated from the rank of sergeant to the Chief of Police by then-Mayor William Hamilton. This was the first and only time that a chief did not hold the rank of lieutenant or captain prior to his appointment.

Wagner's tenure as police chief was marred by a vote of no confidence by the patrolmen's union and a motion for a vote of no confidence by the Holyoke City Council that was only narrowly defeated. One of Wagner's accomplishments as chief was his revision of the Standing Operating Procedure of the Holyoke Police Department. In September 1994, Wagner resigned as chief and resumed his rank as sergeant.

In January 1995, Donoghue was appointed Chief of Police. Later that year, the Massachusetts Attorney General's ("AG") office and Massachusetts Commission Against Discrimination ("MCAD") began investigating the Holyoke Police Department for alleged wrongdoing. The AG investigators approached Wagner in September 1995 about allegations of criminal activity and civil rights violations. Wagner cooperated with the investigation.

On December 3, 1995, Wagner filed a lawsuit in federal court alleging that the City of Holyoke and individual city councilors had conspired against him to violate his rights and interfere with his employment contract. Wagner also alleged that city officials had defamed him. The suit was dismissed on November 8, 1996 by U.S. District Judge Frank H. Freedman.

Between 1995 and 1996, Wagner met with two Holyoke police officers, Flores and Haberman, regarding claims of discrimination, departmental overtime abuse, illegal alcohol sales and gambling, and Flores' MCAD complaint. Holyoke City Councillor Diasdado Lopez attended some of these meetings.

On June 13, 1996, Donoghue reprimanded Wagner in writing for allowing Sergeant Gary Bennett ("Bennett") to leave his duties during a major fire and for submitting an untrue report on the matter. When Wagner, shortly after the incident, submitted an undated written response to the reprimand, which was critical of Donoghue's deployment of men on the night of the fire, Donoghue himself replied in another undated memo. In this memo, Donoghue criticized the "impertinent" tone of Wagner's written response, advising Wagner that he was "a subordinate whose abilities [had been] below ... expectations." (Docket No. 141, Ex. 11).

On June 17, 1996, Donoghue ordered the payroll clerk to cease paying out-of-grade stipends—that is, additional pay stipends to inferior officers who assumed supervisory duties on individual shifts—to all sergeants, including Wagner.

On June 21, 1996, Wagner filed a grievance with his union, Local 409, seeking rescission of the June 13 written reprimand. On July 3, 1996, by agreement, Donoghue and Local 409 agreed that the June 13, 1996 letter of reprimand would be removed from Wagner's file in six months if he incurred no further disciplinary action. Moreover, sometime before July 15, 1996 (the record is not clear when) Donoghue withdrew his order requiring the payroll clerk to cease paying the out-of-grade stipends. Despite this, on July 15, 1996, Wagner filed a grievance with Local 409 charging that he...