Broderick v. Roache

• Decision Date: 21 November 1990
• Docket Number: Civ. A. No. 90-11500-MA.
• Citation: 751 F. Supp. 290
• 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

751 F. Supp. 290

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.

November 21, 1990.

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

Paul J. Gillespie, Driscoll, Gillespie and Stanton, Lynnfield, Mass., James A. Brett, Reed, O'Reilly & Brett, Boston, Mass., Walter B. Prince, Rosanna Cavallaro, Peckham, Lobel, Casey, Prince & Tye, Boston, Mass., Peter Antell, Antell & Blacker, Boston, Mass., John P. Roache, City of Boston Law Dept., Boston, Mass., Michael C. Bolden, Asst. Corp. Counsel, City of Boston Law Dept., Boston, Mass., Kevin S. McDermott, Boston Police Dept., Corporate Counsel, Boston, Mass., for defendants.

MEMORANDUM AND ORDER

MAZZONE, District Judge.

The plaintiffs, William T. Broderick and the Boston Police Superior Officer's Federation ("Federation") filed this suit against the City of Boston ("City") and various officials employed by the Boston Police Department¹ ("BPD") on June 12, 1990, alleging state and federal constitutional and statutory causes of action. The Federation is the collective bargaining representative of all uniformed personnel of the BPD employed in the positions of sergeant, lieutenant, and captain. Broderick is the current President of the Federation, and has been employed by the BPD since 1969. He has been an active member of the union for some time.

The complaint outlines a number of instances when Broderick, either on behalf of the Federation or of himself, opposed various BPD policies and procedures. The plaintiffs allege that the defendants repeatedly engaged in conduct which was intended both to punish Broderick for his opposition and to chill any further opposition to BPD actions by either Broderick or the Federation.² The plaintiffs seek an injunction against further discriminatory actions against Broderick, money damages for civil rights violations, treble damages for civil RICO claims, punitive damages against all defendants except the City of Boston, and costs and attorney's fees.³ As the specifics of the factual allegations involved are important to the resolution of this motion, they will be described at some length.

The activities for which Broderick claims constitutional protection are detailed in ¶ 13 of the complaint. Broderick alleges that he made numerous statements to the media commencing in March of 1989, which were critical of the operation of the BPD. The statements apparently covered a range of subjects affecting the police department, including the propriety and constitutionality of various BPD law enforcement policies and practices which were under public scrutiny at the time, as well as employment policies which affected the police officers whom Broderick represented as Federation president.⁴ Broderick also gave testimony to the Public Safety Committee of the Boston City Council in May, 1989 which was critical of BPD policies regarding assignment of police officers.

Broderick further alleges that since 1987 he has pursued numerous legal actions against the BPD on behalf of himself and the Federation. In 1987, as a member of the Promotions Committee of the Federation, Broderick participated in criticism of a proposed promotional exam for the position of police lieutenant and in January of 1988 that dispute engendered a lawsuit in which the BPD and the Federation took antagonistic positions. Also in 1988, the Federation and Broderick joined in a suit against the BPD for failure to promote Broderick, and when a judgment favorable to Broderick was ignored by the BPD, the court held the BPD in contempt. Broderick publicized the contempt finding by drawing it to the attention of the Boston Globe, and wrote letters to Mayor Flynn and Commissioner Roache demanding removal of Roache because of the contempt finding. He also participated in enforcement of a binding arbiter's decision prohibiting the retaliatory transfer of Federation officers. Finally, in February of 1990 he participated in legal actions by the Federation against the BPD procedure for appointment of lieutenants.

In retaliation, Broderick alleges, the BPD engaged in a pattern of harassment and retaliatory action against Broderick. They subjected him to three different disciplinary hearings which were not justified, refused to promote him when he was entitled to promotion, refused to give him permission to practice law in his spare time when other officers similarly situated received such permission, and kept him under surveillance in an attempt to prevent him from speaking to the press. After statements in the press attributed to Broderick charged the BPD with having a policy of carrying out illegal searches, Evans reprimanded and then interrogated Broderick. In addition, defendant Hart verbally attacked Broderick in public in March of 1988.

This matter is before me now on the defendant Paul Evans's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).⁵ In deciding a motion for dismissal, the allegations of the complaint must be taken as true. Pujol v. Shearson/American Express, Inc., 829 F.2d 1201, 1202 (1st Cir. 1987). I will discuss the claims against Paul Evans seriatim.

1. Constitutional violations actionable under 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act

Count One of the complaint is a claim under 42 U.S.C. § 1983, ("section 1983") alleging that the BPD defendants violated the First and Fourteenth Amendments by retaliating against Broderick for his exercise of his constitutionally guaranteed rights to speak on matters of public concern, to participate in union activities, and to file actions in courts, and attempting to chill the future exercise of such constitutionally protected activities. Count Two alleges that the same conduct violated the Massachusetts Civil Rights Act, M.G.L. c. 12, § 11I.⁶

The right of a public employee to engage in speech on matters of public concern without fear of retaliation by his employer is clearly established. Rankin v. McPherson, 483 U.S. 378, 383, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987). However, liability under section 1983 is limited to adverse employment decisions motivated by speech on matters of public concern. "Our responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government ..." Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983) (emphasis added). Although there may be some First Amendment protection of speech regarding private matters, the Supreme Court has not afforded it the same protection in an employment context, because of the strong interests of the government as employer in maintaining an effective work force. See Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968); Rankin, 483 U.S. at 390-91, 107 S.Ct. at 2900-2901. "A federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior." Connick, 461 U.S. at 147, 103 S.Ct. at 1690.⁷

In the context of a 12(b)(6) motion, the complaint cannot be dismissed unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which could entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Whether the speech pertains to a matter of public concern must be determined by the content, form and context of a given statement, Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690-91. The ultimate issue, whether the speech is protected, is a question of law, not fact. Connick, 461 U.S. at 148 n. 7, 103 S.Ct. at 1690 n. 7. Even viewed under this liberal standard, it is clear that some of the plaintiff's factual allegations do not state a claim for which relief could be granted under section 1983. A number of the incidents relate only to internal departmental employment matters which affect Broderick and other BPD employees. While Broderick has a right to disagree with his employer, belong to a union and use the courts and other dispute resolving forums to further and safeguard his rights, the First Amendment does not afford him special protection as a public employee for these activities. These are essentially private matters, and have been explicitly excluded from the doctrine by the Supreme Court. See Connick, 461 U.S. at 147, 103 S.Ct. at 1690. While Broderick's employer may in fact be engaging in conduct designed to discourage his vigorous advocacy of the union, and to weaken the Federation by intimidating one of its most influential spokespersons, Broderick's remedy may be found in the state and federal labor laws specifically designed to prevent employer abuse of power in such labor disputes. See for example, 29 U.S.C. §§ 157, 158; M.G.L. c. 150E and c. 31 § 42.

Some of the activities alleged by Broderick to have brought the wrath of the BPD upon him are at least arguably protected, however. In civil rights cases implicating First Amendment rights, summary judgment is to be favored over dismissal if the question is a close one. Dewey v. University of New Hampshire, 694 F.2d 1, 3 (1st Cir.1982), cert. denied, 461 U.S. 944, 103 S.Ct. 2121, 77 L.Ed.2d 1301 (1983). The factual allegations which accordingly survive this motion are public statements critical of the BPD and Commissioner Roache which are alleged in ¶ 13(f), (g), (i), and (k) of the complaint. The complaint is not precise about the content, form, and context of these statements, but the allegations are specific enough to raise the question of whether they were statements protected under the Supreme Court's analysis of First Amendment violations actionable under section 1983.⁸

2. Civil RICO claim

Count Four of the complaint charges that the defendants Roache, Hart, Evans and Morgan engaged in a RICO...