Broderick v. Roache

• Decision Date: 06 October 1992
• Docket Number: Civ. A. No. 90-11500-MA.
• Citation: Broderick v. Roache, 803 F.Supp. 480 (D. Mass. 1992)
• Parties: William T. BRODERICK and Boston Police Superior Officers Federation, Plaintiffs, v. Francis M. ROACHE, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

803 F. Supp. 480

William T. BRODERICK and Boston Police Superior Officers Federation, Plaintiffs, v. Francis M. ROACHE, et al., Defendants.

Civ. A. No. 90-11500-MA.

United States District Court, D. Massachusetts.

October 6, 1992.

James F. Lamond, Alan J. McDonald, Newton, Mass., for plaintiffs.

Paul J. Gillespie, Driscoll, Gillespie and Stanton, Lynnfield, Mass., for Francis M. Roache.

James A. Brett, Reed, O'Reilly & Brett, Boston, Mass., for James Hart.

Nancy Merrick, Merrick & Louison, Boston, Mass., for Paul Evans.

Walter B. Prince, Rosanna Cavallaro, Peckham, Lobel, Casey, Prince & Tye, Boston, Mass., for Arthur Morgan, Jr.

Peter Antell, Antell & Blacker, Boston, Mass., for Robert Conlon.

John P. Roache, Hogan & Roache, Boston, Mass., for Charles Burke.

Michael C. Bolden, U.S. Atty.'s Office, Kevin S. McDermott, William H. Keefe, Asst. Corp. Counsel, City of Boston Law Dept., Boston, Mass., for City of Boston.

MEMORANDUM AND ORDER

MAZZONE, District Judge.

This civil rights case was filed by the Boston Police Superior Officers Federation ("Federation") and William T. Broderick, the Federation's president, against the City of Boston and officials of the Boston Police Department ("BPD"). The complaint alleges that the defendants engaged in a pattern of harassment and retaliation designed to punish and chill Broderick's exercise of his constitutionally protected rights to speak on matters of public concern, to participate in union activities, and to file actions in court. Broderick and the Federation bring suit pursuant to section 1983, 42 U.S.C. § 1983, and the Massachusetts Civil Rights Act ("MCRA"), Mass.Gen.L. ch. 12 §§ 11H and I. Broderick also alleges a civil conspiracy by the defendants to deprive him of his constitutional and statutory rights. This case is presently before the court on the defendant City of Boston's Motion for Summary Judgment on Count Two, which alleges that the City is liable under MCRA.¹

I. Standard for Summary Judgment

Summary judgment is warranted only when the record, viewed in the light most favorable to the non-moving party, evinces no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). While a court need not "give credence to `mere allegations' or draw inferences where they are implausible or not supported by `specific facts,'" Sheinkopf v. Stone, 927 F.2d 1259, 1262 (1st Cir.1991) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)), the court must "take the record in the light most hospitable to the party opposing summary judgment and indulge all reasonable inferences favorable to him." Buenrostro v. Collazo, 973 F.2d 39, 41 (1st Cir.1992).

II. Facts Alleged

William Broderick has been employed by the BPD since 1969 (as a police officer since 1977 and as a sergeant since 1986). He has served as president of the Federation since January 1, 1989. Prior to that date he held the position of vice president of the Federation, to which he was elected in November 1987. The Federation is the collective bargaining representative of all uniformed personnel of the BPD employed in the positions of sergeant, lieutenant, and captain.

In his complaint, Broderick alleges that he has been the target of a campaign of harassment and retaliation by the defendants because he has been active on behalf of the Federation and because he has frequently criticized the BPD and Police Commissioner Roache in the news media. Broderick claims that the defendants have retaliated against him by denying him a promotion to which he was entitled, by refusing to grant him permission to practice law in his off-duty hours, and by subjecting him to unjustified disciplinary proceedings. A condensed version of the events which allegedly triggered this retaliation follows.

Broderick's disagreements with the BPD date from 1987, when, as a member of the Federation's Promotions Committee, Broderick publicized his criticism of an examination used to promote officers to the position of lieutenant. The exam had been devised by the Massachusetts Department of Personnel Administration ("DPA"). The Federation sued DPA and the Police Commissioner over the content and structure of the exam, and as a result "DPA revised the examination in a manner supported by the Federation but opposed by the BPD." Verified Complaint, ¶ 13(a).

The exam was given in the late spring and summer of 1987, and Broderick sat for it. Plaintiffs' Trial Document, ¶ 17. Because of problems with the administration of a portion of the exam, there was a controversy over whether the exam should be invalidated. Broderick, in his capacity as vice president of the Federation, "openly opposed the position taken by the BPD in the presence of high level BPD representatives." Plaintiffs' Trial Document, ¶ 19.

DPA ultimately denied the BPD's request to readminister the exam and proceeded to rank the candidates for promotion on the basis of the remaining untainted exam components, as urged by the Federation. Broderick was twenty-fourth out of 111 candidates. In March 1988, Police Commissioner Roache promoted the twenty-three sergeants ranked above Broderick and the ten sergeants immediately below Broderick to lieutenant. Plaintiffs allege that Roache had never previously deviated from the rankings in making promotions. See Plaintiffs' Trial Document, ¶ 21.

In March 1988, Broderick and the Federation brought suit against the BPD for the decision to bypass Broderick for promotion. The Superior Court ordered the BPD to leave vacant a lieutenant's position pending a Civil Service Commission investigation. The BPD ignored that order and proceeded to fill the vacancy. The Superior Court held Police Commissioner Roache and the BPD in contempt of court. Broderick and the Federation then called for Roache's resignation in correspondence sent to Roache and to Raymond Flynn, Mayor of Boston.

Sometime during March, Broderick was "verbally harassed" by James Hart, the BPD Legal and Administrative Advisor, at a BPD swearing-in ceremony. Broderick claims that "Hart intended to intimidate him in connection with the Federation's challenge to Broderick's having been by-passed for promotion." Verified Complaint, ¶ 18.

Meanwhile, Broderick had been sworn in as a member of the Massachusetts bar in December 1987. In January 1988, Broderick requested permission from Commissioner Roache to engage in the private practice of law during his off-duty hours. The BPD has a long-standing policy of granting such requests and at the time Broderick sought approval, approximately thirteen other officers had been granted permission to practice law on a part-time basis. Permission had been granted to one officer as recently as October 1987. In fact, plaintiffs state, permission had never previously been denied and was usually granted within two weeks of the time of the request. However, Broderick was told that his request was being held up pending a review and possible revision of the policy. Broderick was not granted permission until December 1990, after he filed a prohibited practice charge with the Labor Relations Commission. See Plaintiffs' Trial Document, ¶ 25.

During 1988 and 1989 Broderick had numerous further disagreements with the City and the BPD. In November 1988, Broderick became the Federation's chief representative in negotiations with the City over a new collective bargaining agreement. The parties were unable to agree on the terms of the agreement and filed for binding arbitration. The arbitrator ruled in favor of the Federation on the issue of the right of Federation officers not to be transferred by the BPD while in Federation office. When the BPD announced the transfers of two Federation officers in defiance of the arbitrator's ruling, the Federation sued for an injunction in Superior Court, where the arbitrator's ruling was confirmed. See Verified Complaint, ¶ 13(d), (e). This incident, including Broderick's criticism of the City, was widely publicized.

In March 1989, Broderick wrote to Commissioner Roache to complain that Charles Burke, Deputy Director of the Bureau of Administrative Services, was having Broderick followed in an attempt to prevent him from speaking to the media. An internal investigation subsequently found Broderick's complaint against Burke to be unsubstantiated. The Boston Herald covered the story. See Plaintiffs' Trial Document, ¶¶ 38, 39.

Also in March 1989, following the shooting death of BPD officer Sherman Griffiths, Broderick publicly criticized BPD policies regarding search warrants and drug investigations and the effects of those policies on police morale and public safety.

In May 1989, Broderick testified before the Public Safety Committee of the Boston City Council on the subject of "sector integrity," a policy governing the assignment of BPD officers to high-crime areas. His testimony covered his disagreement with the policy as well as his criticism of "the BPD's management structure under Roache." Verified Complaint, ¶ 13(h). Throughout the rest of 1989 and 1990, Broderick's criticisms of Roache and the BPD were often quoted in the local media.

In April 1989 Broderick underwent a three-day disciplinary hearing on the charge that he had failed to give proper notice and to properly report to work on days when he was scheduled for release time to perform Federation duties. Broderick argued that he did not know, was not informed, and did not believe that he was in violation of the reporting policy. The hearing resulted in a seven-day suspension, which Broderick served in July. Broderick appealed the suspension to the Civil Service Commission, which overturned it. The BPD has filed notice of appeal.

On April 18, 1989, Broderick received notice that he would be required to undergo a second disciplinary hearing on charges that he had violated BPD rules and regulations in conducting an arrest which...