Davignon v. Hodgson

• Decision Date: 24 April 2008
• Docket Number: No. 06-1191.,06-1191.
• Parties: David DAVIGNON, David Gouveia, David Miller, Edward Moris, Jr., and Thomas Presby, Plaintiffs, Appellees, v. Thomas M. HODGSON, Individually and as Bristol County Sheriff, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

524 F.3d 91

David DAVIGNON, David Gouveia, David Miller, Edward Moris, Jr., and Thomas Presby, Plaintiffs, Appellees, v. Thomas M. HODGSON, Individually and as Bristol County Sheriff, Defendant, Appellant.

No. 06-1191.

United States Court of Appeals, First Circuit.

Heard February 9, 2007.

Decided April 24, 2008.

Bruce A. Assad, Bristol County Sheriff's Office, with whom Gary W. Smith, Susan S. Riedel, and Posternak Blankstein & Lund LLP, were on brief, for appellant.

Philip N. Beauregard, with whom Timour Zoubaidoulline, and Law Offices of Beauregard, Burke & Franco, were on brief, for appellees.

Jeffrey R. Turco and Brian Knuuttila, on brief for amicus curiae Massachusetts Sheriffs' Association.

Douglas I. Louison, Stephen C. Pfaff, and Merrick, Louison & Costello, LLP, on brief for amicus curiae Massachusetts Correctional Officers Federated Union.

Fredric M. Knapp, Richard Weintraub, James T. Prusinowski, and Laufer, Knapp, Torzewski, Dalena & Sposaro, LLC, on brief for amicus curiae National Sheriff's Association.

Before TORRUELLA, Circuit Judge, STAHL, Senior Circuit Judge, and HOWARD, Circuit Judge.

HOWARD, Circuit Judge.

Five Bristol County Massachusetts correctional officers were suspended from their jobs by Sheriff Thomas Hodgson. Claiming that the sheriff's actions were in retaliation for their First Amendment activities, they sued pursuant to 42 U.S.C. § 1983, in addition to bringing various claims under state law. A jury found Hodgson liable in his official capacity on the § 1983 claims, found against him on some of the state law claims, and awarded a total of $17,980 in compensatory damages. In this appeal, we reject each of Hodgson's claims of error and affirm the judgment.

I. Facts

We rehearse the facts in a light most favorable to the jury verdict. See McDonough v. City of Quincy, 452 F.3d 8, 13 (1st Cir.2006).

In 2000, the Sheriff's Department employed 350 correctional officers, all of whom were members of the Massachusetts Correctional Officers Federated Union (the "union"). Among the correctional facilities operated by the Department were the Ash Street jail in New Bedford and the House of Correction in North Dartmouth. Four of the plaintiffs worked at the Ash Street facility; plaintiff David Davignon worked at the House of Correction.

All five of the plaintiffs were active in union affairs. Plaintiffs Davignon, David Gouveia, David Miller and Thomas Presby were union stewards, and counted among their union duties looking into management's alleged violations of the collective bargaining agreement. Davignon and Presby were also members of the union's negotiating subcommittee, as was plaintiff Edward Morris, Jr.

In the spring of 2000, with their collective bargaining agreement set to expire in June, the union and the Department began negotiating a new agreement. Hodgson, who as sheriff was in charge of the correctional facilities, was among those representing the Department at these negotiations.

The jury heard testimony that, by the summer of 2000, negotiations had grown tense, after no progress on a new agreement had been made after several sessions. Davignon testified that union negotiators had trouble getting release time from work to attend the sessions. At one session in late June, tensions boiled over. According to testimony, Hodgson had arrived more than thirty minutes late, and at the close of the session a union representative asked him to be punctual for the next meeting. Witnesses said that Hodgson cursed at the representative, slammed his hand on the table and said, "I'm the Sheriff. If you have to wait, you'll wait for me." Both Davignon and Presby were present, in their capacities as union negotiators.

In time, the union requested mediation. In September, after returning from the first mediation session, Presby requested and received permission from superior officers to address fellow officers at roll call. There was testimony that presentation of information unrelated to the facility's daily operations was not unusual at roll calls, including giving updates on union activity. Presby reported that the negotiation sessions had not been going well and that the union planned to hold a meeting to determine its next step.

Presby's update became the subject of an internal investigation ordered by Hodgson, to determine whether Presby had left his post in order to give the report. A few days after Presby's remarks, Hodgson also ordered an additional investigation into whether Presby and Morris had left open a door to the central control area of the Ash Street jail. Hodgson testified that he initiated this latter investigation because an administrator told him that on a visit to the facility eleven days prior, the administrator had walked through a number of unlocked doors including a door to central control. The administrator identified Morris and Presby among the officers present in the central control area. He did not, however, submit a written report on the date of the incident as called for by standard departmental procedure. While these investigations were underway, Hodgson issued a policy directive stressing that union representatives could not use roll call to discuss union business.

The union decided to hold a picket at a busy intersection near the Ash Street facility to express dissatisfaction with the contract negotiations and to criticize Hodgson's treatment of correctional officers and their families. The union mailed a letter to its members providing relevant information, and Davignon, Gouveia and Miller spoke with individual correctional officers at work about the planned picket.

At trial, conversations between plaintiffs and four officers were highlighted. There was no dispute that the conversations were brief, with estimates ranging from approximately ten to forty-five seconds. Testimony conflicted as to the precise nature of Gouveia's and Davignon's conversations. Gouveia said that he relayed information about the picket to two officers, but there was also testimony that he asked them if they were going to attend the picket. One noted that Gouveia held a pen and paper during the encounter. Further, although Gouveia testified that several officers approached him and asked him about the picket, the only officers that reported Gouveia spoke to them said that he did the approaching. One officer asserted that Davignon contacted him by telephone and asked him if he would be attending the picket. Davignon denied doing so both in investigative interviews and at trial.

Neither the plaintiffs nor the officers with whom they spoke testified that the conversations distracted any of them from their work, or otherwise endangered staff or inmates. The officer allegedly contacted by phone did, however, testify that "in a sense" he was taken away from his post to answer Davignon's phone call.

Hodgson ordered an investigation into these encounters, to determine whether officers had been pressured or coerced to participate in the picket. Hodgson testified that he initiated the investigation because one of the officers had mentioned to him that he felt that he was being harassed about the picket.

During this time Hodgson addressed three roll calls. In one or more of them he referred to the Supreme Court's decision in Garrity v. New Jersey,¹ and several witnesses testified that Hodgson told officers that, based on Garrity, he could terminate those who failed to be completely truthful during internal affairs investigations. He also stated that employees could not conduct union business on duty, and further that he knew there were "troublemakers" in the department whom he would not hesitate to remove. Relatedly, he stressed that if they were terminated they might grieve and eventually get their jobs back, but they would be making five or six dollars an hour in the interim. Both Gouveia and Davignon testified that Hodgson stared directly at them when making the "troublemakers" comment.

Hodgson also discussed the status of the collective bargaining negotiations. He told the officers that the election was over, he was the sheriff, and that the longer it took to settle the contract the less money there would be for them and their families. He also informed them that there would be no retroactive pay, and that someone was misleading them if they were being told otherwise. Explaining at trial why he could discuss union matters at roll call even though his earlier directive had explicitly banned such discussion, Hodgson asserted that different rules applied to him as sheriff.

The three investigations had the following results. First, with respect to whether Presby impermissibly left his post to address a roll call, investigators determined that Presby did have permission to leave his post. Second, as to the open central control door, Morris and Presby were assigned to the area, neither recalled interacting with the administrator, and Presby specifically stated that he always complied with rules regarding entrance doors. The administrator reaffirmed, and filed a written report confirming, that the central control door was indeed open and that he had observed Morris and other personnel in the area. Finally, with respect to the investigation of the picket-related speech by Davignon, Gouveia, and Miller, interviews of more than sixty officers yielded written statements from four officers stating that the plaintiffs had spoken to them about the picket. In his statement one of the officers noted that he told one of the plaintiffs to get back to him when he had more information about the picket. None of the officers wrote that the plaintiffs harassed, pressured, solicited or coerced them during their brief conversations. Three of them gave oral statements and trial testimony consistent with their written statements. The one officer whom Davignon had allegedly telephoned, however, testified at trial that he felt harassed by the phone call.

Based on the investigation results...