Kearney v. Town of Wareham

• Decision Date: 10 December 2002
• Docket Number: No. 02-1264.,02-1264.
• Citation: 316 F.3d 18
• Parties: Stephen J. KEARNEY, Plaintiff, Appellant, v. TOWN OF WAREHAM et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

316 F.3d 18

Stephen J. KEARNEY, Plaintiff, Appellant, v. TOWN OF WAREHAM et al., Defendants, Appellees.

No. 02-1264.

United States Court of Appeals, First Circuit.

Heard November 4, 2002.

Decided December 10, 2002.

Robert J. Murphy, with whom Holbrook & Murphy was on brief, for appellant.

Joseph L. Tehan, Jr., with whom Katharine Goree Doyle and Kopelman and Paige, P.C. were on brief, for appellees.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and LIPEZ, Circuit Judge.

SELYA, Circuit Judge.

Plaintiff-appellant Stephen J. Kearney, a police officer, repeatedly took issue with his employer, the Town of Wareham (the Town), over the extent of the Town's obligations under the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (FLSA). He asserts that the Town and its hierarchs, angered because he had prevailed in those disputes, cashiered him. Claiming illegal retaliation, he sued the Town, its chief executive (Town Administrator Joseph Murphy), and two of his quondam superiors (Police Chief Thomas Joyce and Lieutenant Arthur J. Brightman).¹ The district court disposed of the case on the defendants' motion for summary judgment. Kearney v. Town of Wareham, Civ. No. 00-10115, 2002 WL 229690, at *4 (D.Mass. Feb. 1, 2002). Kearney now appeals. We affirm the judgment: the FLSA does not constrain an employer who, despite harboring animosity toward an FLSA suitor, makes employment decisions on other grounds — and does so with due deliberation and objectivity.

I. BACKGROUND

We glean the relevant facts from the summary judgment record, drawing all reasonable inferences in favor of the party opposing brevis disposition (here, the plaintiff). See Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990).

Wareham, Massachusetts, is a bucolic community known largely as a gateway to Cape Cod. Beginning in January of 1988, Kearney served as a patrol officer and canine handler for the Wareham Police Department. As a canine handler, Kearney brought his dog home each evening and provided essential care. The Police Department did not count the time spent ministering to the animal as part of Kearney's 40-hour work week.

On May 17, 1994, Kearney and Todd Bazarewsky (a similarly situated canine handler) demanded overtime compensation of up to three hours per day for this work. They also sought additional overtime for transporting the dogs to and from the police station. When the Town rejected these entreaties, the officers filed suit under the FLSA.² A trial ensued, and the jury found in Kearney's favor. Its verdict eventually translated into an award of $683.84 in damages, $2,346.81 in costs, and $34,589.00 in attorneys' fees.

The suit plainly left a bad taste in the mouths of Kearney's superiors. After the verdict but before the case was finally resolved, Chief Joyce circulated a memorandum entitled "Mandatory Overtime Reduction." This document, dated April 17, 1997, anticipated the final judgment and warned that the police force "must prepare to absorb the settlement costs of [Kearney's] lawsuit from the Department's budget." The memorandum then described the chief's plans to effectuate reductions in overtime assignments to free up the needed funds. Kearney claims that the money used to pay the judgment was not derived from the Police Department's budget³ and that Chief Joyce's statements were calculated to pit Kearney against his fellow officers (who counted on overtime to supplement their income).

Kearney asserts that, as a result of the memorandum, his colleagues acted cooly toward him. Moreover, his allegation (in the course of the litigation) that the Town had acted in bad faith rankled, and Chief Joyce, among others, voiced suspicions that Kearney's victory had been procured by untruthful testimony.

From and after that point, Kearney's supervisors began paying particularly close attention to his job performance. This scrutiny resulted in two reprimands. The first, issued on May 28, 1997, was for failure to discover a break-in at a local restaurant during a patrol. The second, issued shortly thereafter, was for failing to clean his revolver. Kearney admits to the accuracy of the facts on which these reprimands were based but asserts (without offering specific examples to the contrary) that such infractions often were overlooked when committed by others. As an added slight, he was assigned what he described as "the oldest and most dilapidated" patrol car in the Police Department's fleet.

At some point in time — the record is silent as to the exact date — Kearney assumed the position of shop steward for the union that represented the rank and file members of the Wareham Police Department. In that capacity, he helped to bring two more FLSA claims against the Town. The first arose when the Police Department asked officers to remain available in case their services might be required during a predicted hurricane. Kearney argued that officers deserved compensation for the time that they spent at home awaiting a call to action. The other claim comprised an effort to secure compensation for police officers for training and roll-call time. In each instance, municipal officials found the claim to be meritorious and adjusted officers' compensation accordingly.

Not long after the last of these claims was settled, a series of events unfolded that marked the beginning of the end. During the early morning hours of May 31, 1998, Kearney, while on patrol, found a bag of expensive golf clubs. Although standard procedure required officers to inventory lost property and either place it inside the evidence shed or ask a sergeant to secure it temporarily, Kearney eschewed these alternatives. Instead, he left the clubs next to the evidence shed (at the rear of the station house) without either logging them in or reporting that he had found them. He did, however, mention his discovery to a fellow officer, Dennis Damata.

The clubs vanished. They mysteriously reappeared twelve days later (after their owner had reported them lost). Kearney suspected that Damata had taken the clubs and said as much. When Damata learned of this aspersion, he complained to Lieutenant Brightman. After conferring with Chief Joyce, Brightman mounted an internal investigation.

Brightman interviewed several police officers and the owner of the golf clubs. He reported to Chief Joyce that he could not reach "a factual conclusion." He did, however, express the view that some of those interviewed were "being less than 100% truthful" and that criminal conduct likely had occurred. Emphasizing the disruptive effect of the incident, Brightman recommended that the probe continue and that the Police Department arrange polygraph tests for Kearney and Damata.

Both officers voluntarily agreed to undergo polygraph examinations, which were administered by an independent expert. The test results indicated that Damata was being truthful and Kearney was not. Chief Joyce immediately placed Kearney on administrative leave. He then wrote to Murphy on September 4, 1998, requesting the convening of a suspension hearing to look into Kearney's conduct. Acceding to this request, Murphy appointed Warren J. Rutherford, the Barnstable Town Administrator, as an independent hearing officer. Kearney did not object to the appointment.

Rutherford took testimony for four days over a period from September 18 through October 9, 1998. Kearney and several other police officers were among the witnesses. On October 15, 1998, Rutherford issued a detailed report in which he summarized the evidence, found that Kearney had violated departmental rules, and adjudged him guilty of "continued untruthful statements and conduct." On this basis, Rutherford recommended Kearney's immediate discharge. Four days later, Murphy adopted the hearing officer's recommendation and terminated Kearney's employment. The following day, Chief Joyce announced Kearney's termination in a letter to all police personnel, noting that "[e]mployees who are untruthful ... will not be tolerated." At about the same time, in what amounted to an exit interview, Chief Joyce told Kearney: "you may have won the battle, but you didn't win the war." Not unreasonably, Kearney interpreted this as a reference to his successful prosecution of FLSA claims.

Kearney appealed his termination to the Massachusetts Civil Service Commission (the Commission). On November 22, 1999, the Commission found Kearney guilty of "conduct unbecoming an officer" and noted that his behavior had caused "dissonance within the department." Withal, the Commission thought dismissal too severe a sanction and reduced the penalty to a sixty-day suspension. The state superior court affirmed the Commission's decision. See Wareham Police Dep't v. Kearney, 2001 WL 34054522, No. 00-0224, slip op. at 7 (Mass.Super.Ct. Nov. 27, 2001). Judicial review ended at that point. The dismissal never actually took effect (although the sixty-day suspension presumably has been served).

In the meantime, Kearney had commenced the instant action. After the close of discovery, the defendants moved for summary judgment. The district court, in a thoughtful rescript, granted the motion. Kearney, 2002 WL 229690, at *4. This timely appeal followed.⁴

II. THE SUMMARY JUDGMENT STANDARD

The role of summary judgment is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990) (quoting Fed.R.Civ.P. 56 advisory committee's note). Thus, summary judgment is appropriate as long as "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Because appellate review of orders granting or denying summary judgment is plenary, Garside, 895 F.2d at 48, this court, like the district court, ...