Opinion
1681CV00866
01-19-2018
Timothy MCLAUGHLIN et al.[1] v. Martin MEEHAN et al.[2]
MEMORANDUM OF DECISION AND ORDER ON THE DEFENDANTS’ MOTION TO DISMISS
Kathe M. Tuttman, Justice
On March 28, 2016, the plaintiffs, Timothy McLaughlin (" McLaughlin") and Pauline Carteiro (" Carteiro"), filed a twelve-count complaint alleging that the defendants, administrators and police officers at the University of Massachusetts-Lowell (" UMass-Lowell") violated their federal and state civil rights and engaged in intentionally tortious conduct, including false imprisonment and defamation. The case principally concerns the plaintiffs’ speaking out about alleged sham hiring practices at the UMass-Lowell Police Department (" Department"), and the defendants’ allegedly taking actions to suppress that speech. The matter is presently before the court on the defendants’ motion to dismiss for failure to state a claim pursuant to Mass.R.Civ.P. 12(b)(6). The court heard oral argument on the motion on November 14, 2017. For the following reasons, the motion is ALLOWED, in part, and DENIED, in part.
BACKGROUND
The complaint and attached exhibits sets forth the following allegations. McLaughlin and Carteiro are former UMass-Lowell security officers. McLaughlin began his employment in 2011; he was discharged on or about June 12, 2013. Carteiro began in 2009; his discharge occurred on or about May 31, 2013. During their employment, each had satisfactory or above average performance reviews. The defendants were at all relevant times the following UMass-Lowell employees: Martin Meehan (" Meehan"), the Chancellor of UMass-Lowell; Randolph Brashears (" Brashears"), the Chief of the Department; Scott Childs (" Childs"); an officer in the Department; Mark Schaaf (" Schaaf"), an officer in the Department; Kenneth Wilson (" Wilson"), the Civilian Security Dispatch Supervisor in the Department; Lauren Turner (" Turner"), an Associate Vice Chancellor in human resources and equal opportunity and outreach; Michael Rutherford (" Rutherford"), the Director of Employer and Labor Relations; Ronald Dickerson (" Dickerson"), the Deputy Chief of the Department; and Melissa Mullen (" Mullen"), the Administrative Lieutenant in the Department.
Rule 12(b)(6) permits the Court to take into consideration matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint. Id.; see Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000).
I. The Patronage Scheme
In 2010, UMass-Lowell hired Brashears as its new Police Chief. Brashears, who was from out of state, immediately became friends with a detective in the Department who had retired from the Nashua, New Hampshire, Police Department. After the two became friends, Brashears began a practice of hiring only retired New Hampshire police officers, most with connections to Nashua, for open positions in the Department. By the end of 2010, he had hired Childs and another officer, both retired Nashua police sergeants, as patrolmen, and a few months later, promoted them to the rank of sergeant. Shortly thereafter, Brashears hired at least seven additional New Hampshire police retirees, including Schaaf, while at the same time halting the advancement of three security officers who were about to enter the police academy in order to fill three of those positions. In 2011, Brashears created the position of deputy chief in the Department, and hired Dickerson, a retired Nashua Police Department captain, to fill the spot. In early 2012, Brashears created two more new positions: chaplain and civilian communications and security manager. He then hired a former Nashua police officer for the chaplain job, and Wilson, a former Nashua police captain, to fill the civilian job.
Apparently, Brashears created the civilian job for Wilson because Wilson could not get a waiver from attending the police academy in Massachusetts.
As a result of the patronage scheme, public safety has suffered at UMass-Lowell. In particular, Department directives ordered officers not to enforce drug- and alcohol-related matters, not to arrest students, and not to issue parking tickets after hours. The problem was compounded by Brashears " stacking" the first shift with the New Hampshire hires, and leaving the third shift barely staffed. The New Hampshire hires also regularly took two- to three-hour lunch breaks at local establishments, rather than spending that shift time protecting the campus.
The complaint details incidents wherein the lack of arrests or involvement compromised campus safety, including ignored incidents of vandalism, and the failure to issue tickets and tow vehicles from campus residential lots, thereby creating a security risk for residents returning home late at night without a place to park.
The patronage scheme also created a rift in the Department, with those speaking out against it suffering ridicule, as well as verbal and written reprimands. The rift is apparent in a March 29, 2013, employee newsletter (" newsletter") wherein Brashears writes that: " a very small element within our security department has been silently waging a war on the rest of our department." He further notes that those employees’ acts, including photographing members’ patrol cars, " are currently under criminal investigation." He closes the newsletter by asking " the 98% of our good willed employees [to] commit to resolving these problems and moving forward as one Department." The New Hampshire hires also set themselves apart by creating a shared email account, " teamnewhampshire@aol.com, " that they used to disseminate inappropriate material among themselves, including an email containing derogatory and violent statements against women.
II. Carteiro’s Public Disclosure of the Patronage Scheme
In 2012, Carteiro began to send anonymous letters to the press and law enforcement exposing the patronage scheme. In particular, Carteiro sent to the FBI a letter dated February 15, 2013 (" FBI letter"), detailing the patronage scheme, the hostile work environment, and the public safety concerns set forth above, as well as mentioning the sexist behavior of one officer. In one paragraph of the five-plus page, single-spaced FBI letter, Carteiro states: " My fear is that the hostile work environment we currently face creates an environment in which one of us or myself will snap, and this will put the safety of the entire University at risk." The FBI letter is signed " Concerned Citizen, Taxpayer, and Employee."
Carteiro also sent a letter to Meehan, dated March 22, 2013 (" Meehan letter"), wherein he impersonated a parent concerned about public safety at UMass-Lowell. The Meehan letter cited the lack of police personnel present on campus, who are instead spending their time at local establishments, and the writer’s attempts to document the whereabouts of the UMass-Lowell police officers.
III. Carteiro’s Detention and Interrogation
On March 28, 2013, at about 5:00 a.m., while Carteiro was posted at a campus building, Wilson approached him and insisted that he " go for a ride." Carteiro initially declined, but then went with Wilson because he felt he had no choice. Wilson drove Carteiro to the Cabot Street Police Station, escorted him in, and told him to turn over his radio. After he did so, Carteiro was taken to an interrogation room, where Schaaf and Childs began to interrogate him about the FBI letter. Carteiro admitted writing it, and admitted that he had gathered the information it contained from numerous sources, including McLaughlin. Carteiro insisted, however, that he alone wrote and sent the FBI letter, despite Schaaf and Childs pressuring him at length to admit that McLaughlin and another security officer, Leo Reading, had assisted him.
When Carteiro refused to provide additional information, Schaaf and Childs told him that " things are going to get ugly." Schaaf asked for Carteiro’s cell phone, which he searched for text messages and numbers. Childs asked Carteiro where his mother and father worked, and also about his brother. Childs showed Carteiro a piece of paper from the district attorney’s office, telling him, " this is where you’re going if you don’t cooperate. You ever been to a grand jury?" Childs went on, saying, " Do you want to be in the news; your parents in the news?" and " Are you afraid of getting jammed up; getting your friends jammed up?"
Eventually, Childs told Carteiro that they had to go to his house and look on his computer, saying, " we either get to see it or the Middlesex District Attorney will subpoena or get a search warrant for it and we’ll see it anyway." Shaaf then gave Carteiro a consent form, which he signed. Childs, who had left the room, returned and informed Carteiro that " I just spoke with the DA and they have the grand jury ready so now it all depends if you cooperate." After hearing this, fearing further detention or arrest, Carteiro agreed to show them the FBI letter on his computer.
Prior to leaving the station for Carteiro’s house, while he was waiting in the lobby with Wilson, Carteiro said that he wanted some fresh air. Wilson said, " you better stay right here." Shortly thereafter, Carteiro drove his personal vehicle to his house, followed by Childs and Schaaf in an unmarked cruiser. Once at his house, Carteiro showed them his computer, and directed them to the FBI letter thereon. Schaaf began searching the computer, and asked Carteiro for his email password, which Carteiro provided. After about forty-five minutes, Childs informed Carteiro that they were going to take his computer, despite Carteiro’s protestations. To safeguard the computer, Carteiro himself loaded it into the cruiser.
From the start of the interrogation, until Schaaf and Childs left Carteiro’s home, approximately seven hours elapsed. Carteiro was exhausted and sleep-deprived from his overnight shift, and, at one point during the interrogation, nodded off and fell asleep. At no point during the interrogation did Carteiro feel free to leave.
The following day, March 29, 2013, Carteiro came to the UMass-Lowell police station to retrieve his computer. While he was waiting, he observed Mullen, Dickerson, and Brashears looking at a screen attached to his computer. Dickerson and Brashears ultimately handed the computer back to Carteiro.
IV. Carteiro’s Suspension and Termination
Also on March 29, 2013, Carteiro received a letter informing him that he was suspended from work. A few weeks later, by letter dated May 24, 2013, Rutherford informed Carteiro of a disciplinary hearing regarding the following offenses: publishing false information that he was a police officer, publishing false claims about UMass-Lowell’s hiring practices, and publishing a false threat to the safety of UMass-Lowell. At the hearing, the questioning was focused almost exclusively on Carteiro’s exposure of the patronage scheme, and not on any perceived safety threat. A few days later, on or about May 31, Carteiro’s employment was terminated.
V. McLaughlin
In October 2012, McLaughlin observed an incident of sexual harassment during work hours involving the New Hampshire hires. Specifically, at some point in October 2012, shortly before his shift began, McLaughlin saw Schaaf watching a video, and then heard him say about a sexual assault victim that " she’s more of a slut than a victim" and call another officer to " come here, you’re missing her boobies." Female officers were present in the room at the time Schaaf made the comments.
McLaughlin reported the incident up the chain of command. Wilson then questioned McLaughlin about the incident, asking McLaughlin what he wanted him to do about it. McLaughlin replied that he wanted Schaaf to be retrained. Shortly thereafter, Schaaf was promoted to detective.
On March 28, 2013, at some point in the mid-afternoon, Schaaf, Childs, and two Nashua police officers came to McLaughlin’s house and questioned him about sending the FBI letter, and the " threat" contained therein. Despite McLaughlin’s protests that he did not write the letter, Childs did not stop questioning him. When one of McLaughlin’s family members suggested getting a lawyer, Childs leaned closely into McLaughlin, pointed a finger in his face, and said, " you know what, get a lawyer, you’re going to need one."
McLaughlin’s disciplinary hearing occurred on June 4, 2013, and concerned the same allegations listed above for Carteiro, in addition to conduct unbecoming of an employee and gross insubordination. In support of the charges, during the hearing, Schaaf and Childs presented evidence obtained from their search of Carteiro’s phone and computer. In his written recommendation for termination, the hearing officer noted that, during a prior investigatory hearing, McLaughlin refused to answer questions and instead exercised his rights against self-incrimination. Finally, the hearing officer noted McLaughlin’s disrespectful and flippant attitude during the hearing. On or about June 12, 2013, McLaughlin’s employment was terminated.
At some point thereafter, after receiving information from Schaaf and Childs that McLaughlin was involved in drafting and sending the FBI letter, Nashua police confiscated McLaughlin’s New Hampshire pistol/revolver license.
VI. Present Action
In their July 5, 2016, amended complaint, the plaintiffs allege the following causes of action: Count 1, violations of their rights to freedom of speech and freedom of association under 42 U.S.C. § 1983; Count 2, violations of G.L.c. 12, § § 11H and 11I; Count 3, interference with advantageous relationship; Count 4, false imprisonment; Count 5, violations of substantive and procedural due process rights under § 1983; Count 6, invasion of privacy; Count 7, intentional infliction of emotional distress; Count 8, violation of 42 U.S.C. § 1985; Count 9, violation of 42 U.S.C. § 1986; Count 10, defamation; Count 11, declaratory and prospective injunctive relief; and Count 12, violations of the Fourth Amendment protection against unlawful seizure under § 1983. Not all counts concern both plaintiffs and all defendants; the details of the parties involved in each count will be discussed, infra . On September 30, 2016, the defendants moved to dismiss the complaint under Rule 12(b)(6) for failure to state a claim for which relief may be granted, which the plaintiffs opposed.
DISCUSSION
Rule 12(b)(6) allows for dismissal of a complaint when the factual allegations contained within it do not suggest plausible entitlement to relief. Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-36 (2008); Fraelick v. PerkettPR, Inc., 83 Mass.App.Ct. 698, 699-700 (2013). In ruling on the motion, the court accepts the factual allegations as true and draws all reasonable inferences in favor of the plaintiff. Fraelick, 83 Mass.App.Ct. at 699-700.
I. Sufficiency of Factual Allegations as to Certain Defendants
The defendants argue that the complaint fails to allege sufficient facts to support any of the allegations against Meehan, Rutherford, and Turner. As to Turner, I agree, as the complaint contains no factual allegations relating to her knowledge of the relevant events, or any actions she took in relation to the plaintiffs. Meehan and Rutherford stand on different ground, however. The complaint alleges that Meehan had knowledge of the events in question, and that Rutherford participated in the plaintiffs’ termination, and the defendants offer no further, specific arguments regarding why they should be dismissed from any particular claim. Accordingly, the defendants’ motion to dismiss is ALLOWED as to all claims pertaining to Turner.
II. Federal Civil Rights Actions
A. Freedom of Speech (Count 1)
Carteiro and McLaughlin allege that all defendants violated their First Amendment right to freedom of speech. To prevail on a freedom of speech claim in an employment context, the plaintiffs must show: (1) that they were speaking as citizens on a matter of public concern; (2) that their interests, as citizens, in commenting upon matters of public concern outweighed their employer’s interest in promoting the efficiency of the public services it performs through its employees; and (3) that the protected expression was a substantial or motivating factor in the adverse employment decision. Cristo v. Evangelidis, 90 Mass.App.Ct. 585, 589 (2016), quoting Decotiis v. Whittemore, 635 F.3d 22, 29 (1st Cir. 2011). The first two factors are questions of law for the court while the third factor is ordinarily a question of fact for the jury. Davignon v. Hodgson, 524 F.3d 91, 100-01 (1st Cir. 2008). See Garcetti v. Caballos, 547 U.S. 410, 418-20 (2006).
The first factor has two subparts: whether the plaintiffs were speaking as citizens and whether the subject of the speech was of public concern. Cristo, 90 Mass.App.Ct. at 589. Both are met here. The plaintiffs were speaking as citizens (rather than employees) because their speech concerned hiring practices and the report of internal sexual misconduct, neither of which formed part of the plaintiffs’ official duties as security officers. See Garcetti, 547 U.S. at 421 (when " public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not" protect their communications). While the plaintiffs learned of the issues by virtue of their employment, that fact alone has no bearing on the citizen analysis. Lane v. Franks, 134 S.Ct. 2369, 2379 (2014) (" critical question" is " whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties").
As for public concern, Carteiro exposed a patronage scheme that negatively affected public safety at UMass-Lowell, and cast a negative light on the operation of UMass-Lowell as a fair and impartial public institution. The same speech was imputed to McLaughlin. Each plaintiff also spoke about sexual misconduct at the Department. Both are matters of public concern. See Garcetti, 547 U.S., at 425 (" Exposing governmental inefficiency and misconduct is a matter of considerable significance"); Baron v. Suffolk Cnty. Sheriff’s Dep’t, 402 F.3d 225, 233-34 (1st Cir. 2005) (matters of public concern include official malfeasance, abuse of office, and neglect of duties); Azzaro v. County of Allegheny, 110 F.3d 968, 978 (3d Cir. 1997) (report of sexual harassment matter of public concern); Thomas v. Salisbury, 2015 WL 5684074, at *5 (D.Mass. 2015) (sexual harassment by acting police chief a matter of public concern).
That the plaintiffs may also have had other personal motives for speaking does not remove the speech from the realm of public concern under the facts of this case, where the public concern was highly significant compared to any personal grievances the plaintiffs may have had. See Cygan v. Wisconsin Dep’t of Corr., 388 F.3d 1092, 1100-01 (7th Cir. 2004).
On the allegations presented here, the second factor of the analysis is also met. The relevant inquiry " is whether the plaintiffs’ interest in speaking outweighed the defendants’ interest in promoting the efficiency of the public services the police department performs." Pomponio v. Ashland, 2016 WL 471285, at *5 (D.Mass. 2016). In other words, the " question is whether [the defendants] had an ‘adequate justification for treating [the plaintiffs] differently from any member of the public ...’ " Lane, 134 S.Ct. at 2380, quoting Garcetti, 547 U.S. at 418. Given the significance of the allegations concerning both the sexual misconduct and the patronage scheme, if true, as I must assume at this point, the defendants can put forth no justification that would outweigh the plaintiffs’ interest in exposing the misconduct. See id.
Finally, on the issue of causation, the complaint sets forth in compelling detail the link between the speech, particularly as to the patronage scheme, and the terminations (e.g., the hostile work environment, the length and tone of the interrogation, and the substance of the disciplinary hearings). Even if the safety " threat" contained in the FBI letter also was a motivating factor in terminating the plaintiffs’ employment, any factual nuances underlying the employment decision are for determination at a later stage of this litigation. Presently, viewing the facts alleged and the exhibits attached in the plaintiffs’ favor, the speech about the sham hiring practices was the primary reason the plaintiffs were fired.
The allegations having satisfied each of the three relevant factors, the defendants’ motion to dismiss the portion of Count 1 alleging violation of the plaintiffs’ freedom of speech is DENIED .
B. Freedom of Association (Count 1)
The complaint alleges that the plaintiffs’ right to associate freely was violated by Brashears’s email, and by the harassment they experienced by virtue of their disagreement with the Department’s hiring practices and the sexual misconduct they observed. Relevant here, freedom of association " encompasses ... a right to associate for the purpose of engaging in those activities protected by the First Amendment- speech, assembly, petition for the redress of grievances, and the exercise of religion." American Lithuanian Naturalization Club, Athol, Mass., Inc. v. Board of Health of Athol, 446 Mass. 310, 324 (2006) (internal quotations omitted). In other words, " [f]reedom of association guarantees an opportunity for people to express their ideas and beliefs through membership or affiliation with a group." Caswell v. Licensing Comm’n for Brockton, 387 Mass. 864, 871-72 (1983). See Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 (1984); Hanover v. New England Reg’l Council of Carpenters, 467 Mass. 587, 593-94 (2014).
Here, the plaintiffs were a minority group within the Department, associating with each other for the purpose of redressing grievances about the Department’s hiring practices and the sexual misconduct of other officers. As determined, supra, these issues are matters of public concern, and thus constitute protected, expressive speech under the First Amendment. See Roberts, 468 U.S. at 622 (right to associate with others in pursuit of shared social and political ends implicit in First Amendment protections); Unemployed Workers Union v. Hackett, 332 F.Supp. 1372, 1376 (D.R.I. 1971) (" constitutional protection extends to cooperative organizational activity intended to promote social change by vindicating the rights of minority group members"), citing National Ass’n for the Advancement of Colored People v. Button, 371 U.S. 415, 430 (1963). The newsletter, in particular with its threat of criminal investigation, and the overall dynamic within the Department, were blatant attempts to suppress the plaintiffs’ right to associate with one another in order to speak about these issues. Accordingly, the defendants’ motion to dismiss the portion of Count 1 alleging violation of the plaintiffs’ freedom of association is DENIED.
While infringements on an individual’s freedom of association may be justified when compelling state interests are at stake, see, e.g., Roberts, 468 U.S. at 623, the defendants have made no such argument here.
C. Substantive and Procedural Due Process (Count 5)
McLaughlin alleges that his substantive and procedural due process rights were violated when Schaaf and Childs gave false information to the Nashua police about him, which then resulted in the loss of his New Hampshire pistol/revolver license. According to McLaughlin, the loss of license, in turn, caused him to be deprived of his right to seek employment as a police officer.
The complaint also alleges that Schaaf and Childs acted to punish or deter McLaughlin from exercising his free speech rights. Those allegations are inapposite under this claim, as they are unconnected to a deprivation of any protected property right.
If these allegations are true, however, it is only the licensing authority in New Hampshire that can afford McLaughlin relief on his procedural due process claim. See Matter of Angela, 445 Mass. 55, 62 (2005) (" The fundamental requirement of due process is notice and the opportunity to be heard at a meaningful time and in a meaningful manner" [citation omitted]). The same could be said for the substantive due process claim, where it was the licensing authority that revoked the license. Moreover, the substantive due process claim fails where McLaughlin has no " unconditional right" to employment as a police officer. R.V.H., Third, Inc. v. State Lottery Comm’n, 47 Mass.App.Ct. 712, 716 (1999) (no substantive due process rights without protected property interest, which is equivalent of " unconditional right"). See Nordberg v. Massachusetts Dep’t of Educ., 87 Mass.App.Ct. 1101, 2015 WL 114916, at *4 (2015) (Rule 1:28 decision) (no property or fundamental right to prospective public employment), citing Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312-13 (1976). See also Knox v. Civil Serv. Comm’n, 63 Mass.App.Ct. 904, 906 (2005). For these reasons, the defendants’ motion to dismiss Count 5 is ALLOWED.
D. Violations of 42 U.S.C. § § 1985 and 1986 (Counts 8-9)
The plaintiffs allege that, in violation of 42 U.S.C. § 1985(2) and (3), the defendants conspired for the purpose of denying them the equal protection and privileges of the law. The plaintiffs further allege that Meehan and Rutherford failed to prevent the § 1985 violations, in violation of § 1986.
The plaintiffs’ § 1985(2) claim fails because the complaint does not allege that the defendants either obstructed justice, or intimidated a party, witness, or juror, as required by the language of the statute. To succeed on a § 1985(3) claim, a plaintiff must allege that the conspiracy was fueled by some " class-based, invidiously discriminatory animus." Bray v. Women’s Health Clinic, 506 U.S. 263, 268 (1993) (citation omitted). See Butner v. Department of State Police, 60 Mass.App.Ct. 461, 469 (2004). The First Circuit has held that this requirement is met where the identifiable group in which the plaintiff claims membership would trigger heightened scrutiny under the Equal Protection Clause, as with suspect or quasi-suspect classifications. See Piacentini v. Levangie, 998 F.Supp. 86, 91 (D.Mass. 1998), citing Libertad v. Welch, 53 F.3d 428, 448 (1st Cir. 1995). Because the plaintiffs’ status as civil servants seeking redress has not been afforded such heightened scrutiny, their § § 1985(3) and 1986 claims necessarily fail. The defendants’ motion to dismiss Counts 8 and 9 is accordingly ALLOWED.
Section 1985(2) of Title 42 of the United States Code provides: " If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws."
E. Unreasonable Seizure (Count 12)
Carteiro alleges that Schaaf, Wilson, and Childs violated his Fourth Amendment right to be free of unreasonable seizure by interrogating and detaining him against his will for seven hours, and by coercing him to signing a consent form to search his computer, all without a warrant or probable cause. The Fourth Amendment protects " the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. When an individual’s encounter with police amounts to more than a minimally intrusive interaction, a seizure occurs, which, depending on the level of intrusion, is a " de facto arrest requiring probable cause, or an investigative (or Terry) stop necessitating reasonable suspicion." United States v. Ford, 548 F.3d 1, 4 (1st Cir. 2008). " [A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554 (1980). Relevant to this calculation is " the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled." Id. " A seizure of property ... occurs when there has been a meaningful interference with an individual’s possessory interest in that property." Soldal v. Cook County, Ill., 506 U.S. 56, 61 (1992) (citation omitted). Whether the seizure is lawful depends on its reasonableness. Id. at 69.
Here, Schaaf, Wilson, and Childs offer no argument that they had either reasonable suspicion or probable cause to detain and interrogate Carteiro, or that their seizure of his computer was reasonable. While these individuals were Carteiro’s work superiors, they were also law enforcement officers, with all of the power and authority that comes with that status. Given the detailed allegations of a forceful, hostile, and prolonged seizure of Carteiro, against his will, as well as the coerced consent form, Carteiro has pleaded a valid Fourth Amendment claim. The defendants’ motion to dismiss Count 12 is DENIED.
F. Qualified Immunity
The defendants argue that they are entitled to qualified immunity as to the plaintiffs’ federal constitutional claims. The relevant three-part test is as follows: " (1) whether the facts taken in the light most favorable to the plaintiff demonstrate that there was a violation of the plaintiff’s Federal constitutional or statutory rights; (2) if so, whether at the time of the violation those rights were clearly established; and (3) whether a reasonable person in the defendant’s position would understand that his conduct violated those clearly established rights." Cristo, 90 Mass.App.Ct. at 590. Qualified immunity is an affirmative defense the defendants have the burden to prove, id., and, ordinarily, the earliest stage of litigation at which it is decided is summary judgment. Gutierrez v. Massachusetts Bay Transp. Auth., 437 Mass. 396, 404 (2002). Based on the defendants’ brief and unsubstantive argument on this issue, and the current stage of litigation, I see no reason to depart from that usual practice here. See Pomponio, 2016 WL 471285 at *5 (rejecting qualified immunity argument where defendants made only general claim and record was not sufficiently developed).
The defendants also argue that they are entitled to qualified immunity on the state civil rights claims, but offer no argument in support of that proposition.
On the free speech claim, the defendants summarily cite the case of Pereira v. Commissioner of Soc. Servs., 432 Mass. 251, 261 (2001), in support of the proposition that any free speech rights were not clearly established. The court never reached that analysis, however, where there was no constitutional violation, and in any event, the speech at issue in that case, a racial joke, is far different from the protected speech at issue here. Id. at 118, 122. Likewise, the defendants’ arguments concerning anonymous speech are inapposite where the plaintiffs’ anonymity is not legally relevant under the case law. Finally, on the unreasonable seizure claim, the defendants make no argument apart from conclusory statements and boilerplate legal principles.
III. State Civil Rights Claims
A. Violations of Massachusetts Civil Rights Act (Count 2)
The plaintiffs allege that the defendants violated their rights under the Massachusetts Civil Rights Act (" MCRA"). " The [MCRA] provides a State remedy for interference or attempts to interfere with the exercise or enjoyment of rights secured by the Constitution or laws of the United States or rights secured by the Constitution or laws of the Commonwealth by threats, intimidation, or coercion. G.L.c. 12, § 11H. Section 11I authorizes a private cause of action for the deprivation of secured rights and an award of attorneys fees for the prevailing party." Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass. 93, 98 (1987). " To establish a claim under the [MCRA] the plaintiffs must prove that (1) their exercise or enjoyment of rights secured by the Constitution or laws of either the United States or of the Commonwealth, (2) have been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by ‘threats, intimidation or coercion.’ " Reproductive Rights Network v. President of Univ. of Mass., 45 Mass.App.Ct. 495, 505 (1998) (citations omitted).
General Laws c. 12, § 11H, provides, in relevant part: " Whenever any person or persons, whether or not acting under color of law, interfere by threats, intimidation or coercion, or attempt to interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other person or persons of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, the attorney general may bring a civil action for injunctive or other appropriate equitable relief in order to protect the peaceable exercise or enjoyment of the right or rights secured."
General Laws c. 12, § 11I, provides, in relevant part: " Any person whose exercise or enjoyment of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, has been interfered with, or attempted to be interfered with, as described in section 11H, may institute and prosecute in his own name and on his own behalf a civil action for injunctive and other appropriate equitable relief as provided for in said section, including the award of compensatory money damages."
Because the plaintiffs’ § 1983 claims (Counts 1 and 12, for violations of their First Amendment and Carteiro’s Fourth Amendment rights) survive the defendants’ motion to dismiss, the inquiry here automatically moves to whether the defendants’ actions constituted " threats, intimidation, or coercion" under the MCRA. Id. A " [t]hreat ... involves the intentional exertion of pressure to make another fearful or apprehensive of injury or harm ... Intimidation involves putting in fear for the purpose of compelling or deterring conduct ... [Coercion involves] the application to another of such force, either physical or moral, as to constrain him to do against his will something he would not otherwise have done." Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, 474 (citations omitted). " The term ‘threats, intimidation and coercion’ may take on many forms." Reproductive Rights Network, 45 Mass.App.Ct. at 506.
The allegations here, including the termination of the plaintiffs’ employment, the newsletter, and Carteiro’s detention and interrogation, all undertaken to suppress the plaintiffs’ constitutional rights, easily meet the above definitions of threats, intimidation and coercion, particularly given the remedial nature of the statute. See Redgrave, 399 Mass. at 99. The defendants’ motion to dismiss Count 2 is DENIED.
B. Invasion of Privacy (Count 6)
Carteiro alleges that Schaaf, Childs, Mullen, Brashears, and Dickerson, violated his right to privacy by viewing personal information on his seized computer. The complaint further alleges that any consent Carteiro provided was coerced, and, in any event, only related to the FBI letter, and not to the myriad other files the above defendants viewed.
" To sustain a claim for invasion of privacy under G.L.c. 214, § 1B, the invasion of a person’s solitude or seclusion must be both unreasonable and substantial or serious." Polay v. McMahon, 468 Mass. 379, 382 (2014) (citation omitted). " Generally, whether an intrusion qualifies as unreasonable, as well as either substantial or serious, presents a question of fact." Id. at 383 " In determining whether a defendant committed an unreasonable intrusion, [the court] balance[s] the extent to which the defendant violated the plaintiff’s privacy interests against any legitimate purpose the defendant may have had for the intrusion." Id., citing Webster v. Motorola, Inc., 418 Mass. 425, 431-34 (1994) (discussing intrusion in an employment context). Factors that the court considers " in assessing whether there has been an intrusion that is unreasonable, as well as substantial or serious, include the location of the intrusion, the means used, the frequency and duration of the intrusion, and the underlying purpose behind the intrusion." Id.
General Laws c. 214, § 1B, provides: " A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages."
A person’s private computer files, including his email accounts, contain a person’s thoughts, ideas, and communications. They are intensely personal, and functionally no different from a person’s physical solitude or seclusion. Under the set of facts alleged here, where the defendants had no legitimate purpose in searching the computer other than to suppress Carteiro’s constitutional rights, and any perceived safety threat contained in the FBI letter was a mere pretext, the complaint states a plausible claim for invasion of privacy under § 1B. The defendants’ motion to dismiss Count 6 is DENIED.
VI. Intentional Torts
A. Interference with Advantageous Relations (Count 3)
The plaintiffs allege that the defendants intentionally persuaded UMass-Lowell not to perform under its employment contracts with the plaintiffs with improper motive and/or means. According to the plaintiffs, the improper motive included perpetuating the patronage scheme and preventing the plaintiffs from speaking out about it, while the improper means included false imprisonment, invasion of privacy, intimidation, threat, harassment, and retaliatory discharge.
To prevail on a tortious interference claim, a plaintiff must prove that: (1) he had a contract with a third party; (2) the defendant knowingly induced the third party to break that contract; (3) the defendant’s interference was improper in motive or means; and (4) the interference harmed the plaintiff. Alba v. Sampson, 44 Mass.App.Ct. 311, 314 (1998). In an employment context, where the defendant is a supervisor, the improper motive or means element requires the plaintiff to prove that the defendant acted with actual malice. Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 395 (2005). In other words, the defendant must have acted " malevolently, i.e., for a spiteful malignant purpose unrelated to the legitimate corporate interest." Id., quoting from Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 476 (1992).
Because it is undisputed that the plaintiffs had an employment agreement that was terminated, the only elements at issue are the second and third. The defendants’ knowledge that their actions would lead to the plaintiffs’ termination is a factual inquiry inappropriate for determination on a motion to dismiss. On the third element, it is unclear whether all the named defendants acted in a supervisory capacity in relation to the plaintiffs. Regardless, the result is the same under either standard. As for the supervisory defendants, which requires a showing of actual malice, their actions or complicity in the chain of events that led to the plaintiffs’ discharge was completely unrelated to any legitimate corporate interest. See id. Indeed, perpetuating a patronage scheme and sexual harassment, as the plaintiffs allege, would be counter to the legitimate interests of UMass-Lowell as a public institution. The same actions described also constitute improper motive or means. For these reasons, the defendants’ motions to dismiss Count 3 is DENIED.
B. False Imprisonment (Count 4)
Carteiro alleges that Schaaf and Childs falsely imprisoned him during his interrogation, and Wilson falsely imprisoned him during his transport in the police vehicle. " A defendant is liable for false imprisonment if: (a) he acts intending to confine another within fixed boundaries; (b) the act directly or indirectly results in confinement; and (c) the plaintiff is conscious of the confinement." Cremaldi-Vickery v. Otis Elevator, Inc., 57 Mass.App.Ct. 1105, 2003 WL 168452, at *2 (2003) (Rule 1:28 decision), citing Restatement (Second) Torts § 35 (1965). Where an employer is confining an employee for investigative reasons, " a person may be detained for a reasonable length of time and in a reasonable way." Proulx v. Pinkerton’s Nat’l Detective Agency, Inc., 343 Mass. 390, 393 (1961). See Foley v. Polaroid Corp., 400 Mass. 82, 89-92 (1987). The burden to prove reasonableness is on the defendants. Id. at 89.
Because Carteiro sufficiently alleges an intentional confinement against his will at the hands of the above defendants, the only remaining question is whether the confinement was reasonable under the circumstances. See id. That inquiry is a fact-based one inappropriate for determination at the dismissal stage. Accordingly, the defendants’ motion to dismiss Count 4 is DENIED.
C. Intentional Infliction of Emotional Distress (Count 7)
The plaintiffs allege that the defendants’ actions caused them severe emotional distress, including depression and sleep disorder, as well as loss of income and loss of job opportunity. " To sustain a claim of intentional infliction of emotional distress, a plaintiff must show (1) that the defendant intended to cause, or should have known that his conduct would cause, emotional distress; (2) that the defendant’s conduct was extreme and outrageous; (3) that the defendant’s conduct caused the plaintiff’s distress; and (4) that the plaintiff suffered severe distress." Sena v. Commonwealth, 417 Mass. 250, 263-64 (1994), citing Agis v. Howard Johnson Co., 371 Mass. 140, 144-45 (1976). To be considered extreme and outrageous, the defendant’s conduct must be " beyond all bounds of decency and ... utterly intolerable in a civilized community." Agis, 371 Mass. at 145, quoting Restatement (Second) Torts § 46 comment d (1965). Liability cannot be founded upon mere insults, threats, or annoyances. Foley, 400 Mass. at 99.
Proving that the defendants’ conduct was extreme and outrageous is a difficult showing to make under the case law. Nevertheless, taking the allegations as true, the defendants, in particular those who took part in the investigation, certainly engaged in conduct that could fit within that category. Likewise, the plaintiffs’ distressed response to those actions is plausible. The defendants’ motion to dismiss Count 7 is DENIED.
D. Defamation (Count 10)
McLaughlin alleges that Schaaf and Child knowingly and with malice published, either orally or in writing, a statement to one or more Nashua police officers that McLaughlin was involved in writing the FBI letter and that McLaughlin was a " threat" to the public and UMass-Lowell student body. McLaughlin further alleges that, at the time of the publication, the above defendants knew that information was false, and, that as a result of the publication, he was harmed by the loss of his New Hampshire firearm license, and the loss of opportunity to obtain such a license in Massachusetts. These losses, he alleges, negatively affected his ability to seek employment as a police officer.
" To prevail on a claim of defamation, a plaintiff must establish that the defendant was at fault for the publication of a false statement regarding the plaintiff, capable of damaging the plaintiff’s reputation in the community, which either caused economic loss or is actionable without proof of economic loss." White v. Blue Cross & Blue Shield of Mass., Inc., 442 Mass. 64, 66 (2004). Libel and statements that may prejudice the plaintiff’s profession or business both fall into the category of actionable statements without proof of economic loss. Ravnikar v. Bogojavlensky, 438 Mass. 627, 630 (2003).
Citing Flagg v. AliMed, Inc., 466 Mass. 23, 37-38 (2013), the defendants argue that the complaint insufficiently alleges a publication. See id. at 38 (dismissing defamation claim where complaint alleged only that information " became known amongst fellow workers and the community at large"). I disagree. Here, the complaint specifically alleges a communication of false information from Schaaf and Child to Nashua Police officers. Unlike in Flagg, there is no gap in the allegations here concerning how the information became known to the relevant community. Because McLaughlin likewise satisfies the other pleading requirements of a defamation claim, the defendants’ motion to dismiss Count 10 is DENIED.
E. Common-Law Qualified Immunity
The defendants’ argument that they are entitled to common-law qualified immunity on the plaintiffs’ tort claims is unpersuasive. A public official engaging in discretionary conduct is not liable for negligence or other error in the making of an official decision if the official acted " in good faith, without malice and without corruption." Gildea v. Ellershaw, 363 Mass. 800, 820 (1973). Assuming the doctrine applies to intentional torts, which is not at all clear, the plaintiffs allege that the defendants acted out of a corrupt motivation to shield and perpetuate their unlawful hiring practices. Such a motivation does not meet the requirements for immunity stated in Gildea. See id.; Safe Haven Sober Houses, LLC v. Good, 82 Mass.App.Ct. 1112, 2012 WL 3930121, at *4 (2012) (Rule 1:28 decision).
V. Declaratory Relief (Count 11)
The plaintiffs allege " that there is a possibility that they will re-apply or apply for further employment with the UMass-Lowell Police, and, as such, have standing to bring this declaratory relief action." Any future application or employment, however is hypothetical. Declaratory judgment " is a vehicle for resolving actual, not hypothetical, controversies." Quincy City Hosp. v. Rate Setting Comm’n, 406 Mass. 431, 439 (1990). Accordingly, the defendants’ motion to dismiss the plaintiff’s G.L.c. 231A declaratory relief action is ALLOWED.
ORDER
For the reasons stated, it is hereby ORDERED that the defendants’ motion to dismiss is ALLOWED, in part, as follows:
1. The defendant, Lauren Turner, shall be DISMISSED as a defendant in this case.
2. Count 5, alleging procedural and substantive due process violations pursuant to 42 U.S.C. § 1983, is DISMISSED.
3. Counts 8 and 9, alleging violations of 42 U.S.C. § § 1985 and 1986, are DISMISSED.
4. Count 11, seeking declaratory relief pursuant to G.L.c. 231A, is DISMISSED.
As to all remaining defendants and counts of the complaint, the defendants’ motion to dismiss is DENIED.