Pierce v. Cotuit Fire Dist.

• Decision Date: 28 January 2014
• Docket Number: No. 13–1428.,13–1428.
• Citation: 741 F.3d 295
• Parties: David PIERCE, Plaintiff, Appellant, v. COTUIT FIRE DISTRICT; Board of Fire Commissioners of the Cotuit Fire District; Donald Campbell, Fire Commissioner of the Cotuit Fire Department, Ronald Mycock, Fire Commissioner of the Cotuit Fire Department; Peter Field, Fire Commissioner of the Cotuit Fire Department; Christopher Olsen, Fire Chief, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

741 F.3d 295

David PIERCE, Plaintiff, Appellant,

v.COTUIT FIRE DISTRICT; Board of Fire Commissioners of the Cotuit Fire District; Donald Campbell, Fire Commissioner of the Cotuit Fire Department, Ronald Mycock, Fire Commissioner of the Cotuit Fire Department; Peter Field, Fire Commissioner of the Cotuit Fire Department; Christopher Olsen, Fire Chief, Defendants, Appellees.

No. 13–1428.

United States Court of Appeals, First Circuit.

Jan. 28, 2014.

Harold Lichten, with whom Sara Smolik and Lichten & Liss–Riordan, P.C. were on brief, for appellant.

Marielise Kelly, with whom Edward R. Gargiulo and Gargiulo/Rudnick, LLP were on brief, for appellees Cotuit Fire District, Board of Fire Commissioners of the Cotuit Fire District, Donald Campbell, Ronald Mycock and Peter Field, Fire Commissioners of the Cotuit Fire Department, and Christopher Olsen, Fire Chief.

Before LYNCH, Chief Judge, STAHL and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Plaintiff-appellant David Pierce, former Captain of the Cotuit, Massachusetts Fire Department, brought a complaint against the Department, the Fire Chief, and the Board of Fire Commissioners, alleging political discrimination in violation of the First Amendment and 42 U.S.C. § 1983, whistleblowing retaliation in violation of the Massachusetts Whistleblower Act, and tortious interference with contractual relations. The district court entered summary judgment in favor of the defendants on all counts. Because we conclude that the defendants have presented legitimate, business-related grounds for their employment decisions and because Pierce has failed to demonstrate that the proffered explanations are pretextual, we affirm.

I. Facts

The Cotuit Fire Department is a relatively small operation. In rough order of seniority, the Department has five “call” firefighters, six full-time firefighters, three Lieutenants, one Captain, and one Fire Chief. The Department also has a three-member Board of Fire Commissioners (“the Board”), which is in charge of overseeing, appointing, and terminating personnel. At the time of the relevant events, the Captain of the Cotuit Fire Department was David Pierce. Since March of 2008, the Fire Chief has been defendant Christopher Olsen. Until November of 2009, the Fire Commissioners were defendants Donald Campbell, Ronald Mycock, and Peter Field. In November, Donald Campbell resigned and was replaced by Brenda Nailor.

A. Inter–Departmental Relationships

In the decades leading up to the fall of 2009, the Cotuit Fire Department was the home of some fairly complicated personal histories. As Captain of the Department, Pierce served directly over his wife, Jayne Pierce, who was a full-time firefighter through the majority of their relationship. Prior to his marriage to Jayne, Pierce had been married to Donna Pierce (now Donna Fenner), who had been a call firefighter at the time, but had subsequently joined the Department as a full-time firefighter and married fellow firefighter Scott Fenner. Fenner's own ex-wife, Amy Griffin Fenner, is also a call firefighter. There was testimony that this pattern of intra-departmental relationships made the Cotuit Fire Department the subject of mockery among neighboring departments, frequently to the consternation of the Department's own employees. Since the 1990s, firefighters and officers in the department had discussed implementing a stricter policy regarding domestic relationships, though no early discussions materialized into a new policy.

Following their marriage, David and Jayne Pierce were never scheduled to work the same regular 24–hour shift. They did, however, work together with some regularity when they responded to emergency calls or when one of them volunteered to substitute for an unavailable firefighter on the other's regular shift. During these times, Pierce directly supervised his wife. In March 2008, Pierce wrote the Massachusetts State Ethics Commission (“Ethics Commission”) to request an advisory opinion regarding any potential conflict of interest arising out of his professional relationship with Jayne. On March 31, 2008, the Ethics Commission advised him that the state ethics law, Mass. Gen. Laws ch. 268A, § 19, prohibited him from participating in his wife's supervision, performance evaluations, or promotions, or in setting her compensation. The Commission recommended that he write the Board of Fire Commissioners to disclose the situation and obtain a formal exemption, but Pierce chose not to pursue the matter.

Following his communication with the Ethics Commission, Pierce became directly involved in his wife's employment on at least three occasions. First, in the fall of 2008, Pierce advised Chief Olsen against imposing a probationary period on the tenure of new Lieutenants at a time when Jayne was about to become a Lieutenant. Second, Pierce advised Olsen that a new Emergency Medical Services position should go to a trained paramedic when Jayne was the only trained paramedic in the Department. Finally, in April of 2009, Pierce assisted in a disciplinary investigation involving Jayne's verbal altercation with a subordinate firefighter. Although Pierce had a right to recuse himself and although Jayne specifically requested that he do so, Pierce chose to participate after Olsen indicated that he desired Pierce's input in the hearing. Pierce recommended that Jayne receive a counseling session as punishment. However, Olsen ultimately decided to demote Jayne from Lieutenant to firefighter.

In March of 2009, roughly a year after his appointment as Fire Chief and just before Jayne's disciplinary investigation, Olsen circulated a new “Familial Relations Policy” for the Department. Among other things, the policy forbade officers from working regular shifts with or directly supervising their family members. After the policy was circulated, Pierce and Jayne sought legal counsel regarding the policy's repercussions for their careers.

In August of 2009, in response to Jayne's objections to her demotion from Lieutenant, Olsen initiated efforts to investigate an allegedly “hostile environment” in the Cotuit Fire Department. Five full-time firefighters submitted complaints of harassment or intimidation by the Pierces when they were on duty.

B. The Wool Campaign

In April 2009, Donald Campbell's seat on the Board came up for re-election. Campbell originally ran for re-election unopposed. Concerned about a potential conflict of interest created by Campbell's status as an active union firefighter, however, Pierce actively encouraged William Wool to enter the race as a write-in candidate.

At Pierce's request, Commissioner Mycock agreed to meet with Wool to discuss Wool's interest in serving on the Board. Mycock did not discourage Wool from running and, while he did not take a position on Wool's candidacy, he agreed that Campbell's union ties created a conflict of interest. Mycock's concerns were echoed by Commissioner Field, although Field did not take a public position on Wool's campaign either. Mycock did have Olsen advise Pierce not to campaign for Wool while on duty or to use Department resources in his campaigning. Pierce complied with both requests.

Throughout the month of May, Pierce campaigned for Wool by handing out flyers, talking to acquaintances about the election, and displaying a campaign sign for Wool on election day. On one occasion, Pierce was off-duty and campaigning for Wool outside the town Post Office when Olsen drove by and indicated that he wanted Pierce's assistance at an emergency call. Reporting to emergency calls is voluntary for off-duty firefighters, and Pierce declined Olsen's request. The next day, Olsen told Pierce that he wished that Pierce had responded to the call. Olsen also mentioned that he was “concerned” about “losing Campbell” as a Commissioner during the upcoming election.

Campbell ultimately won reelection. Following the election, according to Pierce's testimony, Olsen told Pierce that he was “not happy” that Pierce had campaigned for Wool. Olsen also opined that it was “inappropriate” for Pierce to have campaigned outside the fire station on a separate occasion. Campbell stopped by Pierce's office during the same period, ostensibly to assure Pierce that he had no hard feelings, but he ultimately expressed disappointment and frustration with Pierce over his support for Wool.

C. Retaliation and Ethics Complaints

On October 2, 2009, four months following his campaigning activity, Pierce sent a letter to the Board claiming that Olsen had been retaliating against him ever since the election due to his support of Wool. Pierce cited a variety of forms of harassment starting in the weeks following the election. He reported that Olsen had reneged on his promise to make Pierce “Deputy Chief,” taken away Pierce's office and made him return his Department-issued cell phone, called Pierce and his wife “greedy” for volunteering for overtime, and publicly lashed out at Pierce and two other firefighters for failing to prepare for a memorial ceremony. While Olsen did not respond to Pierce's charges at the time, he later contended that he needed to re-purpose Pierce's office into new sleeping quarters due to space constraints and that it would be more efficient to turn Pierce's work cellphone into a department-wide phone for on-duty officers.

The Board replied to Pierce with a letter indicating that his complaint did not conform to the grievance process prescribed by the Department's collective bargaining agreement and took no further actions on his charges. Because Pierce's letter criticized Olsen's treatment of both Pierce and his wife, however, the Board did take the occasion to remind Pierce of his obligations under the Massachusetts ethics laws and to suggest that Pierce contact the Ethics Commission for an advisory opinion regarding his professional relationship with Jayne.

On November 20, 2009, the Board sent its own letter to the Ethics Commission to request that the...