Burdick v. Town of Westerly, 011521 RISUP, WC-2016-0043

Docket Nº:C. A. WC-2016-0043
Opinion Judge:TAFT-CARTER, J.
Attorney:For Plaintiff: Gregory P. Massad, Esq. For Defendant: Matthew T. Oliverio, Esq.; Kelly M. Fracassa, Esq.; Deidre E. Carreno, Esq.; William J. Conley, Jr., Esq.; Cark W. Yudysky, Esq.; Thomas M. Robinson, Esq.
Case Date:January 15, 2021
Court:Superior Court of Rhode Island




C. A. No. WC-2016-0043

Superior Court of Rhode Island, Washington

January 15, 2021

For Plaintiff: Gregory P. Massad, Esq.

For Defendant: Matthew T. Oliverio, Esq.; Kelly M. Fracassa, Esq.; Deidre E. Carreno, Esq.; William J. Conley, Jr., Esq.; Cark W. Yudysky, Esq.; Thomas M. Robinson, Esq.



Before this Court are Defendants' Motions for Summary Judgment; one motion was filed by the Defendant Town of Westerly (the Town), through Christopher Duhamel (Duhamel), Diana Serra (Serra), Patricia Douglas (Douglas), and Deborah Bridgham (Bridgham), in her capacity as Treasurer for the Town (collectively, the Town Defendants), and the remaining three motions were filed by Defendants Michelle Buck (Buck), Daniel Kinder (Kinder), and Steven Hartford (Hartford) (together with the Town Defendants, referred to herein as Defendants). Plaintiff Elizabeth Burdick (Plaintiff or Burdick) objects to Defendants' motions. Jurisdiction is pursuant to G.L. 1956 §§ 8-2-13, 9-1-28.1(b), 28-50-4, and Super. R. Civ. P. 56.


Facts and Travel

This case arises from a dispute between a former zoning official and the Town, involving two competing and contradictory accounts of certain events that occurred from 2011 through 2015. Plaintiff was employed by the Town as Zoning Enforcement Officer (ZEO) for approximately four and a half years, until her separation therefrom became effective on February 22, 2013. See Defs.' Common App. Dep. Ex. G 460-64; Ex. DD 243.1 Plaintiff's contested version of these events paints her as a whistleblower who experienced retaliation, defamation, and invasions of her privacy at the hands of at least two civil conspiracies by the Town and its employees and agents. Defendants argue that a stressful zoning matter and subsequent separation from employment were made more complicated by Plaintiff's paranoia, conflicts of interest, and accusations against former colleagues. Plaintiff and Defendants both agree that the instant controversy arose during a period dominated by Burdick and the Town's interaction with Westerly Granite Co., Inc. (Westerly Granite).

The Copar Matter

In late 2011, Westerly Granite, as owner of a parcel of land in Westerly, submitted a site plan for a zoning permit seeking permission to engage in quarry operations within certain portions of its parcel. (Ex. DD 256-57.) This precipitated a controversy, herein referred to as the "Copar matter," regarding the terms of a pre-existing special use zoning permit that allowed Westerly Granite and quarry operator Copar Quarries of Westerly, LLC (Copar) to operate the marble quarry over the vehement objections of surrounding residents. Id. at 258-59.

The Copar matter was a high-profile event for the Town. In late 2011, Burdick began to receive complaints and threats from the disgruntled neighbors of Westerly Granite's parcel about "noise and dust" from processing operations. See id. at 259-60. Burdick recalls that one particular neighbor lodged "probably a hundred complaints." Id. at 263-69. According to Defendant Hartford, it was as a result of this pressure that he removed Burdick from handling the Copar matter on December 27, 2012. (Dep. Ex. A 405.) Yet, during this same period in December 2012 and January 2013, Burdick sent three letters to then-Town Solicitor Buck, through counsel, accusing various individuals in the town government of having engaged in unethical or illegal conduct, as well as claiming that her work environment was hostile and discriminatory. See Ex. E 6-7; Ex. F 8-9; Ex. G 10-11. The January 16, 2013 letter notified the Town of Burdick's intention to bring claims against it, potentially under the Rhode Island Whistleblowers' Protection Act, §§ 28-50-1 et seq. (RIWPA), due to her removal from the Copar matter following the Town's receipt of her December 2012 letter and its allegations of wrongdoing. (Ex. F 9; Ex. DD 290-91.) The January 16, 2013 letter also included Plaintiff's first accusations that she was "subjected to the Town Manager [Hartford] using her office to further his illicit affair with a staff member in violation of innumerable municipal regulations." (Ex. F 8.)

Burdick also claims that, before she was removed from handling the Copar matter, Hartford and Buck restrained her from taking any enforcement action against Copar or Westerly Granite. (Am. Compl. ¶ 11(b); Ex. DD 279-81.) Burdick believed that there was a preexisting quarry use available on the land, and she alleges that Hartford and Buck coerced her into changing her official opinion. (Am. Compl. ¶ 11(b); Ex. DD 369, 374-79; Ex. EE 680-81.) However, Burdick indicated in a November 27, 2012 email to Buck and then-Zoning Solicitor Jack Payne (Payne) that she was "ok with" changing her opinion because Hartford and Buck's different legal interpretation had "changed [her] mind." Dep. Ex. F 459; see Ex. DD 369, 374-76.

In January 2013, the Town learned that Burdick was approached by one of the principals of Copar, Sam Cocopard (Cocopard), with an invitation to apply for a position at a Copar quarry project in Lisbon, Connecticut, and that Burdick responded by signaling her interest. Ex. DD 302-04; see Dep. Ex. C 448-49. Specifically, the Town learned that Burdick sent an email to Jamie Rabbitt (Rabbitt), a planner for the Town of Lisbon, on January 8, 2013. See Dep. Ex. H 689. In this email, Burdick sought to meet with Rabbitt "to discuss the project in detail and from the Town's [Lisbon's] perspective." Id. On January 16, 2013, then-Town Manager Hartford met with Burdick to discuss her email to Rabbitt and Copar's invitation for Burdick to apply for a position with the company. (Ex. DD 303-05.) Burdick acknowledged that she spoke to Cocopard but said she had not agreed to work for them. See id. at 309. However, Burdick received a check dated January 11, 2013 from Cocopard which represented half of a retainer, though she alleged that she had not cashed it at that time. Id. at 313-14.

In a January 18, 2013 memorandum, Hartford memorialized the discussion that took place during the January 16, 2013 meeting. (Dep. Ex. C 448-49.) In his memorandum, Hartford had "decided that it would be a clear conflict" of interest for Burdick to work for Copar, an adverse party in litigation with the Town. Id. Burdick alleges that Hartford's memorandum was false and defamatory. (Am. Compl. ¶ 15; Ex. DD 314-17.) Her subsequent January 18, 2013 letter, through counsel, accused the Town of engaging in additional RIWPA violations when Hartford put his memorandum reprimanding Burdick for considering a job with Copar in her personnel file. (Ex. G 10.)

As a result of these competing narratives of wrongdoing, the Town, through Defendant Kinder, hired Richard Kerbel of R. Kerbel Consulting LLC to conduct an investigation regarding Burdick's allegations. See Am. Compl. ¶¶ 19-21; Ex. DD 323-25; see also Dep. Ex. D 450-57. Burdick refused to participate in this investigation. (Ex. DD 450-55.) On February 10, 2013, after reviewing the allegations made by Burdick and her attorney, Kerbel reported that he "did not find anything of substance" and concluded that Burdick's allegations were either false or based on misunderstandings or exaggerations. See id. at 324-25; see also Dep. Ex. D 455. Burdick later alleged that Defendants conspired to create a sham investigative report, as Kerbel was employed as a paralegal by Defendant Kinder at the time of the investigation. (Am. Compl. ¶ 21; Pl.'s Mem. Supp. Obj. Defs.' Mot. Summ. J. (Pl.'s Mem.) 11-14.)

Burdick left her position with the Town on February 22, 2013. See Dep. Ex. G 460-64. On that date, Burdick signed a separation agreement (the Separation Agreement) that contained a waiver and release of claims.[2] See id. at 464. Burdick agreed, in consideration of the payments made to her by the Town, to release the Town and its representatives "from any and all demands, claims, causes of action and lawsuits, known and unknown, that [she] may have or have had against any Released Parties from the beginning of time to the date of [her] signing." Id. at 461.3

2013 Publicity and Statements

Shortly after Burdick left her position with the Town, local newspaper The Westerly Sun published several articles discussing Burdick's employment and the allegations addressed in the Kerbel report. See Exs. M-Q 93-102. The paper received some of its information from an unidentified source.4 See, e.g., Ex. M 93-95; see also Ex. EE 523. As a result of the Westerly Sun's initial receipt and subsequent publication of this information, members of the Town Council and Town staff were asked to comment on Burdick's allegations. See Exs. M-Q 93-102. Consequently, the statements made by Town functionaries, quoted in the articles published in March and April of 2013, form the basis for a number of Burdick's claims of retaliation, defamation, and false light invasion of privacy, as well as negligence and conspiracy. See id.; see also Am. Compl. ¶¶ 30-39, 69-76, 95, 98.

The 2013 statements at issue include the following: • On February 11, 2013, Westerly Sun reporter Dale P. Faulkner (Faulkner) requested that the Defendant Town, under the Access to Public Records Act (APRA), release records related to a whistleblower claim by Burdick. (Dep. Ex. LL 826; Am. Compl. ¶ 22.) Burdick alleges that Buck, Kinder, and Hartford's response on February 15, 2013 that "we do not believe that any documents exist that are responsive to your request," was false and misleading. (Dep. Ex. MM 827; Am. Compl. ¶ 23.) Burdick states that her...

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