Burns v. State Police Ass'n of Massachusetts

Decision Date12 September 2000
Docket NumberNo. 99-2299,99-2299
Citation230 F.3d 8
Parties(1st Cir. 2000) JOHN A. BURNS, Plaintiff, Appellant, v. STATE POLICE ASSOCIATION OF MASSACHUSETTS AND DEAN BENNETT, Defendants, Appellees. Heard
CourtU.S. Court of Appeals — First Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge] Harrison A. Fitch and Joel P. Suttenberg for appellant.

Brian Rogal with whom Timothy M. Burke was on brief for appellees.

Before Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Stahl, Circuit Judge.

COFFIN, Senior Circuit Judge.

Plaintiff-appellant John Burns claims that the State Police Association of Massachusetts (SPAM) and one of its officers conspired to prevent his promotion to a higher rank in the state police force because of his race, in violation of 42 U.S.C. 1985(3). Concluding that a conspiracy could not exist between a corporation and one of its officers acting in his official capacity, the district court granted summary judgment for defendants on the 1985 claim and remanded related state law claims of defamation, slander and malicious prosecution to a Massachusetts court. We affirm, though on the more basic ground that appellant failed to present sufficient evidence of racial animus to support his 1985 claim.

I. Factual Background

Our review of a grant of summary judgment is plenary, and we consider the facts and all reasonable inferences to be drawn from them in the light most favorable to the nonmovant. F.D.I.C. v. Kooyomjian, 220 F.3d 10, 13-14 (lst Cir. 2000). We need not accept the district court's reasoning, however, and may affirm the entry of summary judgment on any sufficient ground revealed by the record. Torres v. E.I. Dupont de Nemours & Co., 219 F.3d 13, 18 (lst Cir. 2000). The opposing party may not rely on conclusory allegations and unsupported speculation, and even when "elusive concepts" like motive or intent are at issue summary judgment may be appropriate. Pagano v. Frank, 983 F.2d 343, 347 (lst Cir. 1993). The opposing party must offer "definite, competent evidence" to defeat a properly supported motion for summary judgment. Torres, 219 F.3d at 18 (citations omitted); Pagano, 983 F.2d at 347. With these standards in mind, we outline the pertinent facts.

Appellant Burns joined the Massachusetts State Police as a captain in 1992 when that force merged with several other Massachusetts police organizations, including his employer, the Metropolitan District Police (METS). In 1995, appellant was promoted to major, making him the highest ranking African-American officer in the State Police. On six subsequent occasions, however, he was passed over for promotion to colonel. He claims that his rise in the ranks was stalled by a racially motivated conspiracy between appellees SPAM, the union representing state troopers and sergeants, and SPAM's vice president at the time, Dean Bennett.

To support his conspiracy theory, Burns's complaint alleges four instances in which he claims he was treated unfairly. The "First Incident," in early 1993, involved an accusation by an unknown person that Burns had a physical altercation with a trooper over unauthorized bumper stickers on the officer's car. Although Burns did report the improper stickers, an investigation led to a determination that the allegations of a physical confrontation were false.

In the "Second Incident," which occurred later in 1993, Burns again was accused falsely by an unknown individual. On this occasion Burns was alleged to have fondled the breast of a female trooper while questioning her about a missing name tag. An investigation led to the conclusion that the entire scenario was fabricated.

The "Third Incident" arose from an inspection Burns conducted to assure compliance with a new procedure for troopers appearing in court. Troopers required to be in court to testify accounted for their time by obtaining court cards and having them signed. One day in November 1994, Burns spoke with Trooper Kathleen Barrett at the Brockton District Court about her court card. Barrett subsequently called SPAM to clarify the current court-card policy, and, in the course of the conversation, she complained to appellee Bennett about the abrupt manner in which she claimed Burns had dealt with her and the assistant district attorney with whom she was working that day. In June 1995, when the issue of the new court-card policy was on the agenda of a regularly scheduled meeting of representatives from SPAM and the Department of State Police, Bennett brought up the incident involving Barrett and stated that Burns's conduct could constitute sexual harassment. 1

After the meeting, although no complaint had been filed pursuant to established state police policy, a formal harassment investigation was initiated. When interviewed as part of that inquiry, Trooper Barrett denied ever claiming to have been harassed, sexually or otherwise, by appellant. Bennett, too, at some point denied making an allegation of sexual harassment. Burns was notified in March 1996 that he had been cleared.

The "Fourth Incident" centered on a column printed in SPAM's in-house newspaper, The Trooper. The column, written by the pseudonymous "Corporal Midnight," featured a letter, by an anonymous author, making a thinly veiled reference to Burns's exemption from the state police ban on facial hair. Referring only to a "hypothetical" officer, the letter and answer suggested that he had committed perjury when he disclaimed any skin trouble on his application for his previous job with METS; the column also indicated that the officer in question was fired from a federal government position for refusing to shave. Burns, who has a condition that makes shaving painful, is the only former METS officer now with the state police who is permitted to wear a beard. It is undisputed that he was never fired by a federal employer.

Burns's complaint alleges that Bennett and SPAM acted with racial animus in orchestrating these incidents to undermine his authority and to discredit the Massachusetts Minority State Police Officers Association (MMSPOA), a fraternal association of minority state police officers. Burns was a founding member of the MMSPOA, which was formed after the consolidation of the various Massachusetts police forces, and he has served as its vice president since its origin. He attributes his failure to attain the rank of colonel to the efforts of appellees to diminish his reputation.

Although Burns's complaint contains no specific factual support for his claim of racial bias, he testified at deposition that Bennett and other members of SPAM had opposed creation of the MMSPOA. He viewed their opposition as reflecting racial animosity because of the organization's purpose to represent officers of color, and he reported that, when he and the MMSPOA president met with SPAM executive board members to inform them of the new organization, they were received poorly. Burns testified that one individual, not appellee Bennett, told them, "'If I ever find or hear that you are approaching minority members of SPAM to join your organization, I'm going to come after you and I'm going to get you.'" Burns understood this as an assertion by the officer that "there was no room for minorities to be forming an organization and he was not going to stand by while that happened." Burns further testified that a SPAM leader, also not Bennett, asserted that there was no need for "another organization that would speak for members of the Department."

In addition, Burns stated that some of his colleagues on the force had told him about racist comments made by some officers who were unhappy that the merger of police organizations had brought high-ranking minorities to the state police force. These unidentified officers reportedly stated that "they didn't want any officers of color telling them anything."

The MMSPOA's president, Albert Toney, also testified about the negative reaction of some SPAM leaders to the formation of the minority organization, including an angry accusation by a board member that the MMSPOA would promote unfair affirmative action policies. Among other actions and statements discrediting the MMSPOA that Toney attributed to SPAM officials, but not specifically to appellee Bennett, were notices sent to individuals who had advertised in the MMSPOA's newspaper, The Sentry, advising them that the MMSPOA is "not a legal association, that we are not a credible association, that they should not give [advertising revenue] to us." He also pointed to statements by SPAM members, in response to telephone inquiries from potential Sentry advertisers, that the MMSPOA was being investigated by the Attorney General's office and that the people affiliated with the organization are "nothing but a bunch of crooks and . . . not State Police officers." Toney testified that he considers SPAM a racist organization because of comments such as the one described earlier about affirmative action, because he has been called "nigger" "on occasion" by one member of the SPAM executive board, and because of incidents in 1978 and 1985 in which SPAM failed to support him on issues linked to race. 2

The district court concluded that this evidence did not add up to a 1985 violation because "a corporation cannot conspire with its own members acting within the scope of their employment," and the record failed to demonstrate any conduct by Bennett beyond his authority as an officer of SPAM. On appeal, appellant contends that the court erred in applying the "intracorporate conspiracy doctrine" to these facts. See, e.g., McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036-38 (llth Cir. 2000) (en banc) (discussing origin of doctrine and applicability to 1985 claims). In response, the appellees argue that the court properly concluded that a conspiracy between an organization and a single individual member is...

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