Howcroft v. City of Peabody & others

• Decision Date: 11 December 2000
• Docket Number: P-2151
• Citation: 747 N.E.2d 729,51 Mass. App. Ct. 573
• Parties: (Mass.App.Ct. 2001) FREDERICK HOWCROFT vs. CITY OF PEABODY & others. <A HREF="#fr1-1" name="fn1-1">1 98-
• Court: Appeals Court of Massachusetts

747 N.E.2d 729 (Mass.App.Ct. 2001)

FREDERICK HOWCROFT vs. CITY OF PEABODY & others.¹

98-P-2151

Appeals Court of Massachusetts

December 11, 2000.

May 17, 2001.

County: Essex.

Present: Brown, Gillerman, & Duffly, JJ.

Civil Rights, Availability of remedy, Immunity of public official. Public Employment, Police. Constitutional Law, Freedom of speech and press. Massachusetts Civil Rights Act. Federal Civil Rights Act. Emotional Distress. Contract, Interference with contractual relations.

Civil action commenced in the Superior Court Department on February 21, 1990.

The case was heard by Peter F. Brady, J., on motions for summary judgment.

J. Michael Conley (Edward L. Sweda with him) for the plaintiff.

Lawrence J. O'Keefe, City Solicitor (Jonathan Blodgett & Austin Joyce with him) for City of Peabody & others.

GILLERMAN, J.

The plaintiff Frederick Howcroft, formerly a police officer employed by the city of Peabody, brought this action against the city of Peabody and several Peabody police officers, claiming principally that his First Amendment right to speak out on a matter of public interest had been infringed by the retaliatory acts of the defendants. See Pickering v. Board of Educ., 391 U.S. 563, 568 (1968); Kennedy v. Tangipahoa Parish Library Bd. of Control, 224 F.3d 359, 365-366 (5th Cir. 2000). Howcroft's concern was smoking in public places, in this case, the Peabody police station. On January 14, 1988, the Governor approved a comprehensive statute devoted to this subject, which, in part, prohibited smoking in public places including

"any public elevator, supermarket or retail food outlet, in or upon any public mass transit conveyances or indoor platform or enclosed outdoor platform, at any open meeting of a governmental body . . . [or] in any courthouse, school, college, university, museum, library, train, airplane, waiting area of an airport, waiting area of a health care facility . . . group child care center, school-aged day care center, or family day care center . . . or in any public building, except in an area which has specifically been designated as a smoking area. An area shall be designated as a smoking area only if nonsmoking areas of sufficient size and capacity are available to accommodate nonsmokers."² (Emphasis supplied.)

G. L. c. 270, § 22, inserted by St. 1987, c. 759, § 3.

Two days earlier, the Governor had approved a statute providing that after January 1, 1988,"no person who smokes any tobacco product shall be eligible for appointment as a police officer or firefighter in a city or town and no person so appointed after said date shall continue in such office or position if such person thereafter smokes any tobacco products. The personnel administrator shall promulgate regulations for the implementation of this section."

G. L. c. 41, § 101A, inserted by St. 1987, c. 697, § 117.

Regulations promulgated by the personnel administrator on October 6, 1988, interpreted the prohibition to include "all time off the job as well as all time on the job." Plymouth v. Civil Serv. Commn., 426 Mass. 1, 3 (1997). We discuss this latter statute in more detail at note 19, and related text, infra.

In his verified amended complaint, Howcroft alleged that the defendants violated his Federal and State civil rights and, in addition, that they intentionally inflicted emotional distress and intentionally interfered with his contractual and/or advantageous relations. The Superior Court allowed the defendants' motions for summary judgment on all counts and Howcroft appealed.³ We reverse in part and affirm in part.

The relevant facts appearing in the summary judgment materials⁴ extend over a period of more than five years. We summarize these materials, which we view in the light most favorable to Howcroft, and we draw therefrom all reasonable inferences in his favor. See Douillard v. LMR, Inc., 433 Mass. 162, 163 (2001). The dominant (but not exclusive) issue is whether, as the defendants⁵ argue, Howcroft was expressing only his personal grievances about the presence of tobacco smoke in the police station, or whether, as Howcroft insists, he exercised his First Amendment right to speak out on a subject of public interest.

Howcroft was hired by the city as a police officer in 1969. Beginning in about 1977, Howcroft had sinus problems. Regular treatment and a number of operations were required. Howcroft had been a heavy smoker, but his new sensitivity to smoke led him to quit smoking altogether.

By 1985, Howcroft commonly experienced headaches, sinus blockages, nose bleeds, watery and itching eyes, difficulty in breathing, and elevated blood pressure levels as well as serious respiratory tract discomfort caused by inhaling the tobacco smoke of others while at work in the police station. Concerned about his health, he brought the issue of tobacco smoke to his superiors on several occasions beginning in 1987, but to no avail.

On June 22, 1988, defendant Robert Champagne, the chief of the Peabody police department, issued a "General Order, Rules for Control Room," dated June 22, 1988, prohibiting smoking in the control room at the station, a large open space shared by the officers. At the same time Champagne designated the front lobby as the police station's smoking area. These orders were consistent with G. L. c. 270, § 22 (quoted above), but ignored the fact that G. L. c. 41, § 101A (quoted above), passed six months earlier and applicable to all officers appointed after January 1, 1988, prohibited smoking by such police officers both on the job and off the job.⁶

In 1989, Howcroft, then a patrol sergeant, worked primarily outside the station, although periodically he was required to work in the control room where, as noted above, smoking was prohibited. In early 1989, Howcroft, after becoming aware of the provisions of c. 270, § 22 -- but apparently unaware of the provisions of c. 41, § 101A -- told his immediate supervisor, Lieutenant John McCorry, of his sensitivity to smoking and requested that smoking be prohibited at roll call.⁷ In response, McCorry began to smoke cigars at roll call and distributed cigars to at least one other officer during roll call. McCorry and other officers, including Champagne, also continued to smoke regularly in areas not designated for smoking.

In the fall of 1989, Howcroft confronted McCorry about his smoking in off-limits areas. In response, McCorry blew smoke in Howcroft's face and told him to "shut up."

On December 6, 1989, following Howcroft's complaints that there was a State law banning smoking in public buildings outside designated areas, McCorry ordered Howcroft to stand in a corner of the room during roll call, with at least three officers present. Shortly thereafter, McCorry reassigned Howcroft to the position of operations sergeant, with duties inside the station.⁸ Howcroft immediately asked McCorry to reconsider, noting the possible "serious health risk" of the reassignment. McCorry did not respond, and the following day Howcroft requested of the defendant Captain Milton Cottrell, McCorry's superior, that Howcroft be permitted to announce at roll call that the front lobby was the only designated smoking area, and also asked that McCorry's reassignment order be rescinded. Cottrell refused.

By letter dated December 7, 1989, Howcroft brought to Champagne's attention that the provisions of G. L. c. 270, § 22, were being disregarded and asked Champagne, as expressly permitted by § 22, to investigate the situation and inform Howcroft of his findings. See note 2, supra.

In response, Champagne told Howcroft that "[t]his is my building and as far as I am concerned, it is a smoking building and I know the law better than you do." Champagne did not respond in writing, as required by § 22.

The parties did agree that Howcroft would be allowed to close the connecting door between the lobby, where smoking was permitted, and the control room, where smoking was not permitted and where Howcroft worked. The following day, however, McCorry ordered that the connecting door be kept open. Howcroft's nose soon began to bleed and he left work early to seek medical attention. Despite repeated requests by Howcroft, neither Champagne nor Cottrell enforced the agreement to keep the door shut. On several occasions between December of 1989 and January of 1990, Howcroft wrote his superiors, providing them with notes from two doctors recommending that he not be exposed to smoke because of his sinus condition. Champagne called one of the physicians a "phony." Cottrell did not respond to these letters in writing and orally supported McCorry's orders.

Howcroft's health continued to deteriorate. On December 31, 1989, when Howcroft informed McCorry that he was going home sick because of the blockage of his sinuses and a severe sinus headache, McCorry's response was to relieve Howcroft from duty indefinitely, telling him not to return without a note from a doctor stating he is fit for duty. On January 3, Howcroft requested permission from Cottrell to return to work, asserting he was fit for duty. Cottrell denied the request and warned Howcroft not to "bother the chief."

On January 24, 1990, Cottrell, acting on Champagne's order, told Howcroft to report to the station and asked him to write a report detailing his condition. The information requested in the report had been provided by Howcroft in the series of letters from the previous month. Howcroft, who attended the meeting with union representatives, requested that he be allowed to speak with an attorney before answering the questions. Cottrell dismissed him, claiming that Howcroft had failed to comply with his order.⁹

On January 29, 1990, after calling Howcroft an "abuser" of sick time, Champagne ordered Howcroft back to work. Howcroft immediately complied with that order. On January 30, 1990, McCorry assigned a smoker to the desk at which Howcroft was working. McCorry subsequently entered the control room smoking a cigar and...