Bolduc v. Town of Webster

• Decision Date: 22 May 2009
• Docket Number: Civil Action No. 05-40030-FDS.
• Citation: 629 F.Supp.2d 132
• Parties: John A. BOLDUC, Jr., Plaintiff, v. TOWN OF WEBSTER and Richard Bergeron, Defendants.
• Court: U.S. District Court — District of Massachusetts

629 F.Supp.2d 132

John A. BOLDUC, Jr., Plaintiff, v. TOWN OF WEBSTER and Richard Bergeron, Defendants.

Civil Action No. 05-40030-FDS.

United States District Court, D. Massachusetts.

May 22, 2009.

John J. Green, Jr., Harry L. Miles, Green, Miles, Lipton, White & Fitz-Gibbon, Northampton, MA, for Plaintiff.

Carole Sakowski Lynch, Morrison Mahoney LLP, Springfield, MA, Geoffrey B. McCullough, Murphy, Hesse, Toomey & Lehane, LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

SAYLOR, District Judge.

This action involves the allegedly wrongful discipline and discharge of a police officer. Plaintiff John Bolduc contends that the Town of Webster and its chief of police (defendant Richard Bergeron) retaliated against him for disclosing that he had heard another officer make a racist comment, and for filing a complaint with the Massachusetts Commission Against Discrimination ("MCAD"). Specifically, Bolduc brings claims for (1) deprivation of civil rights guaranteed by the First, Fifth and Fourteenth Amendments to the U.S. Constitution in violation of 42 U.S.C. § 1983; (2) violation of 42 U.S.C. § 1985(2); (3) violation of Mass. Gen. Laws ch. 151B; (4) violation of 42 U.S.C. § 2000e et seq. (Title VII); (5) violation of Mass. Gen. Laws ch. 149, § 185 (the Massachusetts Whistleblower Act) against the Town only; and (6) violation of Mass. Gen. Laws ch. 12, §§ 11H & I (Massachusetts Civil Rights Act, or "MCRA").

Defendants have jointly moved for summary judgment. The determination of the merits of that motion is complicated by the fact that plaintiff has failed to specify his causes of action with any precision. In addition, in his memorandum opposing summary judgment, plaintiff treats certain theories superficially without any factual or legal development, mentions others only in passing, and ignores others altogether. This makes it exceedingly difficult for the Court to ascertain the exact nature of the claims and to determine whether there is evidence to support them. It is not the obligation of the Court to play the role of plaintiffs advocate, or to scour the record for evidence supporting a theory when plaintiff himself has neglected to do so. "Judges are not like pigs, hunting for truffles buried in briefs." United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991).

In any event, and for the reasons stated below, defendants' motion for summary judgment will be granted in part and denied in part.

I. Factual Background

The facts are set forth in the light most favorable to the plaintiff, except as noted.

A. Bolduc's Promotion to Sergeant

Plaintiff John A. Bolduc became a police officer with the Webster Police Department in March 1995. In October 2001, he was appointed to the position of provisional sergeant.

In June 2002, the Town had an opening for the position of sergeant. Three candidates took a civil service examination and participated in oral interviews for the position: Bolduc, Officer Michaela Kelley, and Officer Aaron Suss. The officials filling the position could select any one of the top three scoring applicants on the examination. Kelley received the highest grade on the examination. Bolduc, however, scored the highest grade in the oral interview, and was awarded the promotion on June 30, 2002. The decision to promote him was made by defendant Richard Bergeron, who was the Chief of Police at the time.

Bolduc was normally assigned to uniform patrol duty on the night shift. However, he was permitted to work days in plainclothes, as necessary, because he was assigned to a cold case murder investigation known as the Amato case.

B. The Colonial Club Incident

On February 22, 2003, Bolduc, Officer Brian Barnes, Deputy Chief Thomas Ralph, and several other town employees met for lunch at the Colonial Club Restaurant in Webster. The purpose of the lunch was to celebrate the birthday of the Town Administrator's secretary. During the lunch, Barnes, while in uniform, told a story about an airplane flight he had recently taken. Bolduc contends that Barnes "first began talking about an overweight woman who was seated in front of him ... then elaborated as to why he did not find the flight pleasant, at one point stating, `I had to sit in the middle seat between two niggers. I felt like a fuckin' Oreo cookie....'" (Pl. Opp. at Ex. 21; Bolduc Dep. 8/31/2006 at 54-56).

About two weeks later, on March 6, Barnes informed a union representative, Detective Michael Shaw, that he believed that Bolduc had cheated on the oral interview for the position of sergeant. According to Barnes, he was in a room with Deputy Chief Ralph on the night before the oral interviews. Barnes reported that he heard Ralph reading the oral interview questions to Bolduc over the telephone, that he remembers the incident quite "vividly," and that Ralph told him "not to `fucking say anything to anybody' about the conversation." Barnes contends that he also told Officer Kelley and Chief Bergeron about the allegations the same day. Bolduc denies any cheating in connection with the oral interview.

On April 15, Deputy Chief Ralph delivered a letter to Chief Bergeron that he contended was a "formal complaint" against Barnes for acting in a "manner that is racist, slanderous and libelous." In the letter, Ralph stated that Barnes, while on duty, made racist statements in public by "referring to blacks as `niggers,' Hispanics as `spics' and Asians as `chinks.'" The letter also stated that in early 2003, the police department had received negative media publicity because Barnes was "the number one Officer in the state failing to comply with the state mandated racial profiling law." According to Ralph, Chief Bergeron became upset upon hearing the allegations against Barnes and told Ralph to leave his office. Later that day, Bergeron ordered Ralph to turn in the keys to his police car.

C. Allegations of Retaliation Against Bolduc

Also on April 15, Bolduc stopped by Chief Bergeron's office to discuss the Amato investigation. Chief Bergeron showed him the complaint letter from Deputy Chief Ralph. Bergeron accused Bolduc of "displaying inappropriate loyalty to Ralph," and collaborating with Ralph on the letter; he also told him that his "friendship, support and loyalty to the Deputy Chief is going to cost [him]."¹

On April 16, Deputy Chief Ralph sent a letter to Chief Bergeron inquiring about his employment status. On April 17, Bergeron ordered Ralph to give a formal written report explaining his "insubordination"—a reference to Ralph's alleged failure to respond to the dispatcher between the time he left Bergeron's office and when he was later asked to turn in the keys to his patrol car on April 15. That same day, Barnes gave Bergeron a statement concerning Bolduc's alleged cheating. Bergeron then left for vacation, leaving Sergeant William Keefe in charge while he was gone. Also that same day, Ralph told Bolduc that he had given Bergeron a list of witnesses to Barnes's comments at the Colonial Club lunch, and that Bolduc's name was on the list. Ralph also told Bolduc that his name would appear on a list of witnesses in a discrimination claim that Ralph intended to file against the police department.

While Bergeron was away on vacation, Ralph returned to work. Ralph then suspended Barnes for not following the proper chain of command, refusal to obey a direct order, and insubordination and discourtesy.

On May 1, Ralph filed a claim with the MCAD. The complaint made no mention of Bolduc's witnessing of the Colonial Club incident. That same day, Bolduc entered Bergeron's office to discuss an unrelated investigation. During that meeting, Bergeron asked him if he ever heard Barnes make racist comments. Bolduc responded that he had. Bergeron ordered Bolduc to provide him "a written statement with names and dates."

On May 6, after a hearing, Barnes was reinstated with back pay.

On May 12, Bergeron asked Bolduc if he had prepared the statement he had requested regarding Barnes. Bolduc gave Bergeron a one-page statement, dated May 2, that addressed the incident at the Colonial Club. After Bolduc provided the statement, Bergeron told Bolduc that he was to return to uniformed patrol duty, effective immediately. Bolduc contends that his schedule of duties was also changed from the day shift to the night shift.

On May 14, according to Bolduc, Chief Bergeron and another officer met with John Stevens, a former Webster police officer. Bergeron allegedly offered to reinstate Stevens if he could provide negative information about Bolduc or Ralph.

The next day, May 15, Bolduc sent a memorandum to Town Administrator Steven Boudreau. The memorandum stated (inaccurately) that Bolduc had filed a complaint with the MCAD, charging that he was the "target of retaliation" by Bergeron because he was identified as a witness in the MCAD proceeding filed by Ralph.² Also on May 15, Bergeron told Bolduc and Officer Suss to relinquish their lower-level office space. Bolduc contends this loss of space required him to maintain police records at home.³

On May 18, Ralph was placed on administrative leave by Bergeron for suspending Barnes without cause. On May 19, Bolduc sent a further letter to Town Administrator Boudreau alleging that Bergeron was retaliating against him.

On June 15, Chief Bergeron and another officer questioned Earl Burgess, a bartender acquainted with Bolduc. Bergeron asked Burgess if he was aware of any drug use, specifically cocaine, by Bolduc. Burgess said that he had no knowledge of any sort of illegal activity on the part of Bolduc.

Bolduc learned about the incident that same day and confronted Bergeron. He told Bergeron that he would submit to blood and urine tests to prove that he was not taking drugs. Bolduc contends that Bergeron told him not to worry about it because he "never put any credence" in the allegation. The following day, June 16, Bolduc filed a complaint with the MCAD against the...