Opinion
Civil Action No. 00-10115-GAO
February 1, 2002
MEMORANDUM AND ORDER
The defendants collectively have moved for summary judgment on all the remaining claims in the plaintiff's complaint. The plaintiff, Stephen J. Kearney, opposes their motion as to some of the claims (Counts 1, 7, 9, 19, 20, 21, 22, 25, 27, 28, 31, 34, and 36) and agrees to the dismissal of the rest (Counts 10, 11, 12, 13, 16, 18, 29, 30). Kearney also seeks to amend his complaint to add a count of negligence against the Town of Wareham. For the reasons set forth below, the defendants' motion for summary judgment is GRANTED, and the plaintiff's motion to amend his complaint is DENIED.
Counts 2, 3, 4, 5, 6, 8, 14, 15, 17, 23, 24, 26, 32, 33, 35 were dismissed on an earlier motion by the defendants.
A. Summary of Facts
Kearney was employed as a patrol officer by the police department of the Town of Wareham from January 1988 until October 1998. Thomas A. Joyce is Wareham's police chief and Arthur J. Brightman is a patrol lieutenant under Chief Joyce. Through an intermediary sergeant, Brightman was Kearney's supervisor. Defendant Joseph Murphy was a Wareham Town Administrator during Kearney's employment, but Murphy died on October 18, 2000. As a result of his death, both parties to this case agree that all counts against Murphy ought to be dismissed.
At some point during his tenure as a patrol officer, Kearney became responsible for a police dog ("K-9"). There was a disagreement between Kearney and the Town about whether the Town ought to pay for the costs associated with the K-9. Kearney and another officer successfully brought suit under the Fair Labor Standards Act ("FLSA") for back wages which they claimed were due to them for amounts they had advanced for the care and board of their K-9s. Defs.' Mot. for Summ. J., Ex. 1, Statement of Facts, Ex. G ("Defs.' Ex.").
On April 17, 1997, after the verdict in the FLSA case was rendered in Kearney's favor, Joyce circulated a memorandum to the Wareham police officers in which he stated, "As a result of the recent verdict in the K-9/F.L.S.A. suit against the Town, I must prepare to absorb the settlement costs of this lawsuit from the Department's budget." Defs.' Ex. H. The memorandum went on to outline cutbacks in the availability of overtime assignments. Id. Joyce alleges that at the time he circulated the memorandum, he believed that the department would have to bear the cost of the suit, and it was only two months later that he learned that the costs would not come from the police budget. Defs.' Ex. E at 122. Kearney claims that, as a result of the memorandum, he was subjected to humiliating remarks from other officers on "countless" occasions, Pl.'s Opp'n to Defs.' Mot. for Summ. J., Ex. A, Kearny Dep. at 61 ("Pl.'s Ex."), presumably because they were distressed at the prospect of reduced funds for their own overtime work.
Kearney then became the shop steward for the Wareham police union. In that capacity, he brought a second FLSA suit against the Town, this time alleging that the Town had failed to pay officers wages owed in connection with "stand by time." Kearney claimed that the Town had to pay officers when they were requested to "stand by" and be available to respond to a possible hurricane. Joyce was opposed to the police department making such payments. This second suit was also decided in Kearney's favor in an administrative proceeding.
Kearney was involved in a third suit against the police department under the FLSA. This time, the allegation was that Wareham had to pay for the training of officers. Through a state agency proceeding, Wareham determined that it did owe officers some additional payment.
The parties dispute whether Kearney directly brought this suit, or whether he was involved merely in his capacity as Shop Steward. Compare Pl.'s Statement of Disputed and Undisputed Facts at 11 and Defs.' Statement of Facts ¶ 21. The dispute is irrelevant to the issues presented.
After these three suits, Kearney alleges that Joyce and Brightman engaged in a series of vindictive acts against him. First, Brightman gave Kearney a written reprimand for failing to discover a break-in of a local restaurant during his patrol. Kearney claims that other officers have also missed break-ins but have not been disciplined. Pl.'s Ex. A at 39. Second, Kearney received a letter reprimanding him for having a dirty weapon, but there does not appear to be any evidence that Joyce or Brightman were behind the issuance of the letter. Pl.'s Ex. A at 77. Finally, Kearney claims that Joyce asked the officer in charge of making patrol car assignments to assign an old patrol car in poor condition to Kearney. Pl.'s Ex. A at 84.
The most debated part of the history between the parties surrounds a set of golf clubs that Kearney found while on patrol. On May 31, 1998, while Kearney was patrolling the Baypointe Golf Club in Wareham, he found a bag of expensive golf clubs lying on the ground. Kearney took the clubs, returned to the police station with them, and placed them near the evidence shed at the rear of the station. Several officers agree that placing "found property" there was routine practice by the police officers. See Pl.'s Statement of Disputed and Undisputed Facts at 13. The defendants claim that proper procedure for handling lost property is to place it in the evidence room or to give it to a sergeant. See Defs.' Mot. for Summ. J., Ex. 1, Statement of Facts at ¶ 40. Kearney did not file any report concerning the golf clubs or otherwise report that he had found them.
At some point the golf clubs disappeared from the station, but they later reappeared when their owner contacted the police looking for them. The defendants believe that Kearney may have taken them. Kearney, on the other hand, believes that another officer, Dennis Damata, may have taken them. Damata was one of the few officers to whom Kearney had told that he had found and brought in the clubs. Pl.'s Ex. A at 112-13. Eventually, Damata approached Brightman to complain that Kearney was making statements to other officers accusing Damata of stealing a set of golf clubs, and he asked Brightman to start an investigation. Defs.' Ex. F at 55-56, 75-76. Brightman told Joyce about Damata's complaint and Joyce directed him to start an internal affairs investigation. Defs.' Ex. E at 141, 144-45.
As part of the internal investigation, Kearney and Damata each voluntarily took a polygraph test. The results indicated that Kearney was being untruthful and, contrariwise, that Damata was being truthful. Defs.' Exs. Y, Z. The day after the test, Joyce placed Kearney on administrative leave. Defs.' Ex. AA. On September 4, 1998, Joyce sent a letter to the Town Administrator Murphy requesting an administrative disciplinary hearing for Kearney and recommending that Kearney be suspended if discipline was imposed.
The administrative hearing was conducted before an independent hearing officer. After an extended hearing in which Kearney and several other officers testified, the hearing officer recommended that Kearney "be immediately discharged and removed from is position as a Police Officer. . . . His violation of department rules and regulations and his continued untruthful statements and conduct justify this recommendation." Defs.' Ex. GG. Thereafter Joyce issued a notice to the Wareham police officers declaring that: "Stephen Kearney has been terminated as a police officer with this department. . . . Employees who are untruthful, who undermine morale or department efficiency through false statements, rumor-mongering or inappropriate behavior, and those who untruthfully accuse fellow officers of wrongdoing will not be tolerated." Compl. Ex. C. Kearney claims that turning the matter into a formal investigation was unusual, and that termination was a disproportionately harsh punishment. See Pl.'s Statement of Facts at 23-24. When Kearney had a conversation with Joyce after his termination, he alleges that Joyce made a reference to Kearney's first FLSA suit and said, "You may have won the battle, but you didn't win the war." Pl.'s Ex. A at 20, 23.
Kearney appealed his termination to the Civil Service Commission. Though the Commission found some discipline was appropriate, it reduced the punishment to a sixty day suspension. The Civil Service Commission's decision was affirmed by the Suffolk Superior Court on November 27, 2001.
B. FLSA Claims Against the Town of Wareham, Joyce, and Brightman
Kearney claims that his termination was illegal because it amounted to retaliation by Joyce and Brightman for his successful suits against Wareham under the FLSA. The FLSA expressly forbids such retaliatory actions, stating that:
"[I]t shall be unlawful for any person . . . to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee[.]"29 U.S.C. § 215(a)(3). In reply, the defendants assert that Joyce and Brightman are not Kearney's employers, and that Kearney has failed to meet his burden to prove that his termination was motivated by retaliatory animus.
Even if Kearney can establish that Joyce and Brightman are his employers, his FLSA claims all fail because he cannot show that his termination was an act of retaliation. For purposes of the defendants' summary judgment motion, the Court will assume that Joyce and Brightman harbored resentment against Kearney for vigorously asserting FLSA rights. However, the defendants suspended Kearney only after he had failed a polygraph test and they terminated him after the independent hearing officer, following a full hearing, recommended that Kearney be dismissed. Although Joyce and Brightman may have been happy to have the opportunity to suspend or terminate Kearney, Kearney's suspension and termination were objectively justified at the time they were imposed. An employee may not escape discipline he deserves simply because at some prior time he had successfully prosecuted an FLSA claim against his employer. See Blackie v. Maine, 75 F.3d 716, 724 (1st Cir. 1996) ("The FLSA is [not] a shield against legitimate employer actions. . . .").
Kearney has not offered any basis for suspecting that the hearing officer did not conduct his proceedings fairly or impartially.
To succeed in his FLSA retaliation claim, Kearney must show that the adverse employment action was the result of his assertion of his rights under the FLSA. See id. at 723 (to make a claim for retaliation, the plaintiff must show that a trier of fact could find "that a causal connection existed between the protected conduct and the adverse action" (citation and emphasis omitted). Here, the causal chain is broken by the polygraph test and the independent hearing officer's impartial findings and recommendation. The fact that the hearing officer's recommendation of termination was subsequently reduced to a suspension also does not make Joyce's reliance on the recommendations inappropriate.
Similarly, the record does not permit the conclusion that the letters of reprimand Kearney received — for missing a break-in and for having a dirty weapon — constituted retaliation under the FLSA. In the first place, Kearney does not say that the factual predicates for reprimand did not exist. For the same reason he could justifiably be disciplined for lying, he could legitimately be disciplined for other infractions. To support a retaliation claim, he would have to start by showing that the reprimands had not been merited; he has not offered an evidentiary basis for that proposition.
There are other gaps in his proffer as to these matters. As noted earlier, with respect to the weapon reprimand, there is nothing in the record indicating who authorized or issued the reprimand. With respect to the break-in, the record is also meager, and there is little but speculation to support the claim that it was improperly motivated. For example, though Kearney asserts that he was treated differently from others for the same infraction, there is no evidence from which an independent fact finder could draw that conclusion. A witness's ipse dixit on the point is not sufficient to permit a rational fact finder to conclude that the fact was true.
Finally, the assignment to Kearney of a less desirable patrol car, even if there were evidence to the effect that one or more of the defendants was responsible for it, is not a "materially adverse employment action" sufficient to support a retaliation claim. Blackie, 75 F.3d at 725.
C. Defamation Claims Against Joyce
Kearney fails to provide adequate support for his claims of libel and slander against Joyce. In order to prevail on a defamation claim, Kearney must show that Joyce made a false and defamatory statement about Kearney. McAvoy v. Shufrin, 518 N.E.2d 513, 517 (Mass. 1988). A statement is defamatory if it discredited Kearney "in the minds of any considerable and respectable class of the community." King v. Globe Newspaper Co., 512 N.E.2d 241, 249 (Mass. 1987) (citations and internal quotations omitted). Since all the statements Joyce made were related either to Kearney's conduct as a police officer, or to his suit against the police department regarding the proper payment of police officers, Kearney qualifies as a "public official" and must show Joyce acted with "actual malice." See Rotkiewicz v. Sadowsky, 730 N.E.2d 282, 287-89 (Mass. 2000) (finding that a patrol-level police officer is a "public official" for purposes of a defamation suit).
The first instance of defamation Kearney points to is the memorandum that Joyce circulated stating that Kearney's FLSA lawsuit was responsible for reductions in overtime. In the first place, these statements cannot form the basis for a defamation suit because they were not false statements about Kearney; they were about what budget the funds to pay for the FLSA suit were coming from. Moreover, though it turned out that Joyce was wrong as to the impact of the FLSA suit on the police budget, Kearney has not produced evidence that Joyce knew that his statements were false at the time he made them, or that Joyce issued his memorandum with reckless disregard for the truth. Thus, Kearney cannot show that Joyce acted with "actual malice" when he circulated the overtime memorandum. See Rotkiewicz, 730 N.E.2d at 289 ("`[A]ctual malice' does not mean the defendant's dislike of, hatred of, or ill will toward, the plaintiff. Rather, actual malice means that the defamatory falsehood was published with knowledge that it was false or reckless disregard of whether it was false." (citation and internal quotations omitted)).
The notice Joyce issued after Kearney was terminated also is not actionable. Again, because the statements in the notice were about Kearney's actions as a patrol officer, Kearney is a "public figure" and he must show that Joyce acted with malice. The first part of the notice was literally true: Kearney had been terminated as a police officer. The rest of the notice implicitly asserted that Kearney deserved the termination because he lied, et cetera. Joyce posted the notice in the wake of the independent hearing officer's determination that Kearney had lied and failed to follow proper police procedures. To the extent that Joyce's admonition to the police force was an implied statement about Kearney's conduct or character, it was based on what Joyce correctly understood to be the independent hearing officer's findings.
D. Intentional Infliction of Emotional Distress
There are four requirements to a successful claim for the infliction of emotional distress must meet. Agis v. Howard Johnson Co., 355 N.E.2d 315, 318-19 (Mass. 1976). First, a plaintiff must show "that [the defendants] intended to inflict emotional distress or that [the defendants] knew or should have known that emotional distress was the likely result of [their] conduct." Id. Second, he must show that the defendants' conduct was "extreme and outrageous . . . beyond all possible bounds of decency and was utterly intolerable in a civilized community." Id. (citations and internal quotations omitted). Third, the defendants' actions must be the cause of Kearney's distress. Id. Fourth, he must show that the distress he suffered was "severe and of a nature that no reasonable man could be expected to endure it." Id. (citations and internal quotations omitted).
Even if Kearney could satisfy the first three requirements listed above (it is especially doubtful that he could establish the second element), he has not offered any evidence that he suffered a level of emotional distress which no reasonable man could be expected to endure. Nothing in the record tends to demonstrate that the events he alleges have had "a severe and traumatic effect [on his] emotional tranquility." See Agis, 355 N.E.2d at 319 (citations and internal quotations omitted). This claim fails.
E. State Law FLSA Retaliation and Wrongful Discharge Claims
The remaining claims in the case for retaliation under the Massachusetts FLSA and for wrongful discharge are properly dismissed for the reasons outlined in the defendants' memorandum in support of summary judgment.
F. Conclusion
In sum, Kearney cannot prevail on any of the theories he has advanced in his complaint. It is too late for him to try to add a new theory to this action. Therefore, the defendants' motion for summary judgment on all remaining counts is GRANTED, and the plaintiff's motion to file an amended complaint is DENIED.