Opinion
21-P-108
03-11-2022
Robert SMITH v. TOWN OF WEST BRIDGEWATER & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Plaintiff Robert Smith (Smith), formerly a special police officer (SPO) of the Town of West Bridgewater, appeals from a judgment dismissing his claims under the Massachusetts Whistleblower Act, G. L. c. 149, § 185. The gist of Smith's claim is that he was (1) suspended, and (2) ultimately not reappointed as an SPO, in retaliation for objections he lodged, in which he alleged that other officers in the department gave special treatment to the Chairman of the West Bridgewater Board of Selectmen. The alleged special treatment was that the officers did not issue the Chairman official citations for minor civil motor vehicle infractions. A Superior Court judge dismissed Smith's claims at summary judgment, reasoning among other things that Smith's objections did not qualify as protected conduct under the Act, and that Smith in any event could not show that the objections he made were causally related to his suspension or non-reappointment. We affirm.
Background. On April 12, 2015, Officer Matthew Monteiro of the West Bridgewater Police Department (Department) stopped Jerry Lawrence, Chairman of the West Bridgewater Board of Selectmen, for an invalid vehicle inspection sticker -- a civil motor vehicle infraction. During the stop, Officer Monteiro discovered that Lawrence did not have his driver's license with him, and that Lawrence's vehicle had license plates belonging to another vehicle -- each also a civil motor vehicle infraction. Prior to taking any action, Officer Monteiro called Sergeant Christopher Werner for guidance. After speaking with Sergeant Werner, Officer Monteiro gave Chairman Lawrence a verbal warning and chastised him for not rectifying the problem with his license plates, because Monteiro was aware that Lawrence had received prior warnings about the issue. Monteiro also did not record the stop of the Chairman in the police log.
We summarize the facts drawn from the summary judgment record, viewed in the light most favorable to Smith. Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177 (2015).
Smith concedes that there was no Department rule requiring Officer Monteiro to log the stop.
Later that day, Officer Monteiro discussed the traffic stop with plaintiff Smith. Smith was at the time an SPO in the Department -- a position he had been appointed to, annually, since he retired from the force in 2002. Prior to his retirement, Smith had been an officer in the Department for thirty years, ending his term as a sergeant. According to Smith, during his discussion with Officer Monteiro, Monteiro told him that when Monteiro called Sergeant Werner for guidance, Sergeant Werner told him to let Lawrence go without taking further action or logging the stop.
SPOs are annually appointed by the Board of Selectmen to one year terms. See G. L. c. 41, § 96.
Sergeant Werner's and Officer Monteiro's versions of their conversation are not consistent with Smith's version. Rather, Sergeant Werner and Officer Monteiro both state that during the conversation, Officer Monteiro said he wanted to let Lawrence go with a verbal warning, and Sergeant Werner responded by telling Officer Monteiro to use his discretion.
Smith did not take any immediate action after his April 12, 2015 conversation with Officer Monteiro. Ten days later, on April 22, 2015, Smith saw Chairman Lawrence's vehicle parked near where Smith was working a detail. Smith asked Lawrence whether "he had taken care of the registration of his vehicle," and Lawrence stated that the issue was resolved. Smith then called the police station, and asked the officer on duty to check whether Lawrence's vehicle was properly registered. The officer on duty confirmed that Lawrence's registration was active. Sergeant Werner, who was at the station when Smith called in, overheard part of this conversation. Werner subsequently told Lieutenant Vincent Flaherty about Smith's call to the station, and in response Flaherty told Werner to remind Smith that SPOs were not to conduct traffic enforcement while working a police detail.
Later that day, Werner asked Smith to speak with him in his office. Werner asked Smith why he ran Lawrence's plate, and Smith replied that Lawrence had previously been stopped for improper vehicle registration, and Smith wanted to check whether the registration issues persisted. At this point, Werner accused Smith of "trying to start ... a shit show."
As the conversation progressed, both Smith and Werner raised their voices and pointed at each other. Werner stated that Smith had previously been instructed not to conduct traffic enforcement while working a traffic detail, and Smith responded that he "was never told that, ever." After some further back and forth, Smith said "we're getting nowhere" and "I'm leaving," and left Werner's office. Werner followed Smith out of the office and told him "you're done ... you're suspended off the detail list." During the entire confrontation, Smith did not mention Sergeant Werner's alleged instruction to Officer Monteiro to let Chairman Lawrence go without a citation.
Smith testified that he was never told by Werner not to leave. In his deposition testimony, Werner stated that he had told Smith not to leave. An officer sitting outside the office heard Sergeant Werner tell Smith multiple times not to walk away from him.
Five days after Smith's confrontation with Sergeant Werner, on April 27, 2015, Smith met with Chief Clark to discuss his suspension. Clark informed Smith that he had been suspended for insubordination; Smith responded that insubordination was not the real reason for the suspension. Smith also told Chief Clark, among other things, that Lawrence committed a criminal offense by improperly registering his vehicle, that it was "irresponsible leadership" for Sergeant Werner to tell Officer Monteiro to let Lawrence go for a violation for which Lawrence had received previous warnings, and that Werner had told Monteiro not to log the violation.
Department policies define insubordination as "any disrespectful, mutinous, insolent, or abusive language or action toward a superior, whether in or out of the presence of the superior" and "any failure or deliberate refusal to obey a lawful order (written or oral), given by a superior officer."
Smith's suspension remained in effect for approximately six weeks. On May 20, 2015, while Smith was suspended, Smith nevertheless was unanimously reappointed for another one year term as an SPO, upon recommendation of the Department and by a vote of Chairman Lawrence and the other members of the Board of Selectmen. On June 1, 2015, Chief Clark reinstated Smith to the detail list, but specifically ordered him not to run license plates, write tickets, or do anything other than direct traffic.
In March of 2016, Flaherty was selected as incoming police chief, in anticipation of Chief Clark's impending retirement. Thereafter, in May 2016, over one year after the incident, incoming Chief Flaherty recommended eight officers to the Board of Selectmen for the next one year term as SPOs. Smith was not included. Flaherty later testified that he had not reappointed Smith because (1) Smith had a history of insubordination, and (2) Flaherty had received feedback from other officers in the Department that Smith communicated inappropriately with younger officers -- that when given direction by younger officers, Smith would argue with them and threaten to go over their heads to Chief Clark.
Smith filed this lawsuit in June of 2016. The complaint included: (1) a claim under the Massachusetts Whistleblower Act, G. L. c. 149, § 185, alleging that the Department had retaliated against him for reporting and objecting to unlawful conduct; (2) a Massachusetts Civil Rights Act claim against Lawrence, Chief Clark, Flaherty, and Werner; (3) a conspiracy claim against all defendants; and (4) a Federal civil rights claim against all defendants under 42 U.S.C. § 1983. The defendants removed the case to Federal court, where a Federal judge dismissed the Federal civil rights claims, and then remanded the state law claims.
Following discovery, a Superior Court judge granted the defendants’ motions for summary judgment. As to Smith's whistleblower claim, the judge noted that Smith had not provided written notice to the Department, which the judge reasoned was required for a claim under § 185 (b ) (1), and also that Smith had not engaged in protected activity as defined by § 185 (b ) (3), because he had never been asked to engage personally in illegal conduct. The judge also concluded that even if Smith could show that he engaged in protected activity, he had "no reasonable expectation" of proving that his alleged protected activity caused his suspension, or his non-reappointment as an SPO. Smith appeals.
The judge also granted summary judgment as to Smith's claims against the individual defendants. Smith does not raise any arguments regarding those claims on appeal.
Discussion. We review a grant of summary judgment de novo, to determine "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Krupien v. Ritcey, 94 Mass. App. Ct. 131, 134 (2018) (quotation omitted). Summary judgment may be granted if the party opposing summary judgment has the burden of proof at trial, and "has no reasonable expectation of proving an essential element of that party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
The whistleblower statute, G. L. c. 149, § 185, prohibits public employers from taking "retaliatory action[s]" against employees who engage in certain types of defined protected activities. In general, the protected activities include objecting to, or disclosing, actions that the employee "reasonably believes [are] in violation of a law." Cristo v. Worcester County Sheriff's Office, 98 Mass. App. Ct. 372, 376 (2020), quoting G. L. c. 149, § 185 (b ). See Bennett v. Holyoke, 362 F.3d 1, 5 (1st Cir. 2004). The elements of a whistleblower claim include (1) the employee engaged in a protected activity; (2) participation in that activity was the cause of the retaliatory action; and (3) damages resulted. Trychon v. Massachusetts Bay Transp. Auth., 90 Mass. App. Ct. 250, 255 (2016). Here, Smith's claim fails because, even assuming he engaged in activity protected by the Act, he has no reasonable expectation of demonstrating that his actions were the cause of his suspension or non-reappointment.
1. Protected activity. The Act identifies three categories of protected activity. G. L. c. 149, § 185 (b ). At issue here are the first and third categories. In pertinent part, these provisions protect an employee who:
"(1) Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer ... that the employee reasonably believes is in violation of a law ... or
"(3) Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes is in violation of a law." Id.
As to employees seeking protection under § 185 (b ) (1), the statute also requires the employee to give prior written notice before disclosing the misconduct to an external public body; under our decision in Cristo, however, the notice requirement does not apply where the employee makes the disclosure internally to a supervisor. Cristo, 98 Mass. App. Ct. at 379. See G. L. c. 149, § 185 (c ) (1). Furthermore, the notice requirement does not apply to the protections of § 185 (b ) (3).
For present purposes we can assume, without deciding, that Smith engaged in conduct that might qualify as protected under the Act. Notably, however, Smith's confrontation with Sergeant Werner on April 22 does not qualify as protected activity. Even under Smith's version of that event, Smith never said anything to Werner that amounted to an objection that Chairman Lawrence had received special and unlawful treatment. Instead, Smith testified that he and Werner argued about whether Smith was authorized to run the motor vehicle licensing check -- a dispute over Smith's authority, not an objection to Werner's handling of Lawrence.
On the other hand, Smith's statements to Chief Clark on April 27, five days after he was suspended, perhaps could qualify as protected activity, although the question is hardly free from doubt. Clark was a supervisor of Smith, so no prior written notice was required under subsection (b ) (1). , Moreover, according to Smith's testimony, Smith both advised Clark that Sergeant Werner had told Officer Monteiro to let Lawrence go without issuing a citation, and stated his belief that Lawrence's conduct was unlawful and that Werner's direction constituted irresponsible leadership, given Lawrence's violations.
The motion judge ruled that prior written notice was required under § (b ) (1), but the judge did not have the benefit of our later decision in Cristo, 98 Mass. App. Ct. at 379.
The Town also argues that Smith was obligated to make a written disclosure to the Department prior to making a disclosure to an outside public body by filing this lawsuit. This argument fails because the purported retaliation in question occurred prior to Smith bringing his lawsuit. As Cristo notes, "[t]he fact that the employee ... files a lawsuit [after the retaliation] does not magically cause the employer's illegal retaliation to retroactively become lawful."98 Mass. App. Ct. at 380.
Assuming that Smith's April 27 statements to Clark qualify as a disclosure under § (b ) (1), however, Smith also would have to meet the requirement that he "reasonably believe[d]" that Sergeant Werner and/or Officer Monteiro acted "in violation of law." G. L. c. 149, § 185 (b ) (1). That is a difficult argument, because Massachusetts law is clear that an officer in Monteiro's position has discretion as to whether or not to issue a citation for a civil motor vehicle infraction. Commonwealth v. Larose, 483 Mass. 323, 335 (2019) ("police officers ... are entitled to lawfully use their discretion in issuing traffic citations"). See G. L. c. 90C, § 3 (A ) (1). In this case, Smith does not contend that the decision to let Chairman Lawrence go with a warning was unlawful standing alone; rather, Smith argues that Sergeant Werner acted unlawfully because Werner's (alleged) advice to Officer Monteiro violated a statutory "standard of conduct" for public officials because, according to Smith, Sergeant Werner was then seeking promotion within the Department and Werner stood to receive an "unwarranted privilege[ ]" from directing that Lawrence be let go with a warning. See G. L. c. 268A, § 23 (b ) (2). ,
Although G. L. c. 268A, § 23, was not mentioned in the briefing before the Superior Court, it was mentioned several times during the hearing on the motion for summary judgment.
We note that the judge concluded correctly that Smith had not engaged in protected activity pursuant to § 185 (b ) (3). Section (b ) (3) "contemplates misconduct in which the employee is personally involved, or in which the employee is asked to participate." Cristo, 98 Mass. App. Ct. at 377. Smith was never asked to engage personally in the alleged misconduct, and therefore he cannot sustain a claim under § 185 (b) (3).
2. Causation. We need not resolve whether Smith has met the element of protected activity, however. Assuming without deciding that he has, Smith must still present facts that raise a genuine issue as to whether he can show causation -- that is, whether the protected activity (the statements to Clark on April 27, 2015) at least "played a substantial or motivating part" in the adverse employment action. Trychon, 90 Mass. App. Ct. at 255. See Antonellis v. Department of Elder Affairs, 98 Mass. App. Ct. 251, 264 (2020). Smith has not done so with respect to either his 2015 suspension or his 2016 non-reappointment.
The "substantial or motivating part" causation test is the formulation we used in Trychon, although the Trychon opinion itself points out that a different, arguably stricter causation test has also been applied in related contexts -- the "determining factor" causation standard that the Supreme Judicial Court applied to discrimination claims pursuant to G. L. c. 151B, § 4. Trychon, 90 Mass. App. Ct. at 255 n.10. See Lipchitz v. Raytheon Co., 434 Mass. 493, 504 (2001). We need not decide what standard applies, as Smith cannot meet either standard referenced in Trychon.
In the summary judgment context, Massachusetts cases have employed a burden shifting approach to evaluate retaliation claims. Thus, Smith had the initial burden of proof as to all elements of his retaliation claim -- including the element regarding a causal connection between his participation in protected activity and the adverse employment action. See Mole v. University of Mass., 442 Mass. 582, 591-592 (2004) (interpreting G. L. c. 151B, § 4, retaliation claim). See also Pierce v. Cotuit Fire Dist., 741 F.3d 295, 303 (1st Cir. 2014) (interpreting G. L. c. 149, § 185 ). If Smith met his burden to make a prima facie showing, the burden would then shift to the Town to show that there were "independent and legitimate" nonretaliatory reasons for the suspension and non-reappointment. Antonellis, 98 Mass. App. Ct. at 265. The burden then would return to Smith to show that the asserted nonretaliatory reasons were pretextual. See Pierce, 741 F.3d at 303.
a. The 2016 non-reappointment. Smith's causation showing regarding his 2016 non-reappointment did not satisfy his initial burden. Indeed, all Smith has shown is that he raised an objection in April of 2015, which was followed by non-reappointment over one year later; however, "[t]he mere fact that one event followed another is not sufficient to make out a causal link." MacCormack v. Boston Edison Co., 423 Mass. 652, 662 n.11 (1996). One reason Smith's causation argument regarding his 2016 non-reappointment lacks force is because he was reappointed in 2015, just a few weeks after his conversation with Clark, by a unanimous vote of the Board of Selectmen. In contrast, the employment action Smith challenges occurred over one year later, was based on the decision of a new chief of police, not Clark, and occurred during the regularly scheduled annual SPO appointment process. All of these circumstances rebut the contention that there is a causal connection between the April 2015 Clark conversation and Smith's 2016 non-reappointment. Mole, 442 Mass. at 595 ("the time span between [the] protected activity and the later adverse actions is too long to support his desired inference of causation"). And equally important, Smith points to no affirmative evidence that suggests such a causal connection.
However, even if Smith could meet his initial burden as to the 2016 non-reappointment, he has not raised a genuine issue as to whether Flaherty's stated nonretaliatory reasons for not reappointing him were pretextual. Flaherty explained that he did not recommend Smith to be reappointed because (1) Smith had a history of insubordination, and (2) Smith had difficulty communicating appropriately with younger officers. Smith argues, among other things, that Flaherty was merely biding his time to retaliate until he had the power to do so as chief of police. However, Smith has not adduced evidence that Flaherty was even aware of the contents of Smith's April 27, 2015 conversation with Clark.
b. The 2015 suspension. Smith also has not produced evidence that his 2015 suspension was causally related to the Clark conversation. Indeed, the Clark conversation did not occur until five days after Sergeant Werner suspended Smith, and Smith concedes that during his earlier April 22, 2015 confrontation with Werner, he did not raise what he had been told regarding Sergeant Werner advising Officer Monteiro to let Chairman Lawrence go without a citation. Smith has therefore not put forth any evidence that he engaged in protected activity prior to his suspension, let alone that such protected activity was a "substantial or motivating" cause of his suspension. Mole, 442 Mass. at 594 (retaliation not inferred where "adverse employment actions ... predate any knowledge that the employee has engaged in protected activity").
Moreover, as with the non-reappointment, even if Smith had presented sufficient evidence of causation to shift the burden to the defendant, he has not adduced evidence raising a genuine issue that the reason given for his suspension was pretextual. The stated reason for the suspension was Smith's insubordination to Sergeant Werner on April 22, 2015. Under Department policies, insubordination encompasses, among other things, "any disrespectful, mutinous, insolent, or abusive language or action toward a superior, whether in or out of the presence of the superior." Smith concedes that he argued with Werner, raised his voice, and pointed his finger at Werner. Smith also contested Werner's authority to suspend him. Smith concluded the conversation by saying "we're getting nowhere" and leaving Sergeant Werner's office. These actions alone are enough to constitute insubordination as defined by the Department polices, and once again, there is no affirmative evidence indicating that the proffered insubordination was a pretext.
Judgment affirmed.