Thomas v. Town of Salisbury
| Decision Date | 28 September 2015 |
| Docket Number | CIVIL ACTION NO. 14–13726–JGD |
| Citation | 134 F.Supp.3d 633 |
| Parties | Mark Thomas, Plaintiff, v. Town of Salisbury, David J. L'Esperance, Cornelius J. Harrington, Kevin Sullivan, Robert St. Pierre, Daniel McNeil, Richard Merrill Jr., Eugene Scione, Steven Sforza, Michael Adler and Thomas Fowler, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Cary P. Gianoulis, John F. Tocci, Tocci & Lee, LLC, Boston, MA, for Plaintiff.
Adam Simms, John J. Davis, Pierce, Davis & Perritano, LLP, Douglas I. Louison, Joseph A. Padolsky, Louison, Costello, Condon & Pfaff, LLP, Boston, MA, for Defendants.
The plaintiff, Mark Thomas, is a police officer with the Town of Salisbury. He has brought this action alleging numerous violations of his constitutional and state law rights in connection with an internal investigation brought against him, his resulting termination as a police officer, and his subsequent reinstatement. The defendants fall into three groups, each of whom have filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)
. They include the Town of Salisbury and the Town Manager, Cornelius (Neil) Harrington (collectively the "Town Defendants"), and the "Individual Defendants," which group includes police officers Richard Merrill, Jr., Eugene Scione, Steven Sforza and Michael Alder; Robert St. Pierre (the former Chief of the Salem Police Department who conducted the investigation); and Thomas Fowler (the current Chief of the Salisbury Police Department). The final group, collectively referred to as the "L'Esperance Defendants," includes David J. L'Esperance (the former Salisbury Chief of Police); Kevin Sullivan (the former Salisbury Acting Chief of Police); and Daniel McNeil (a retired Sergeant from the Salisbury Police Department).
This matter is presently before the court on the Town Defendants' Motion to Dismiss all the remaining counts of the complaint against them. (Docket No. 21). These include Count I (violation of First Amendment Rights—Retaliation), Count II (violation of Fourteenth Amendment—Procedural Due Process), Count III (violation of Fourteenth Amendment—Substantive Due Process), Count IV (violation of Fourteenth Amendment—Defamation), Count V (civil conspiracy against Harrington), Count VII (violation of Mass. Gen. Laws. ch. 12, § 11I
—The Massachusetts Civil Rights Act against Harrington), Count VIII (intentional infliction of emotional distress against Harrington), Count IX (intentional interference with contractual relations against Harrington), Count X (interference with advantageous business relations against Harrington), and Count XI (defamation against Harrington). The plaintiff has voluntarily withdrawn Count XII (violation of Mass. Gen. Laws ch. 149, § 185 Whistleblower Statute against the Town). For the reasons detailed herein, the motion to dismiss is ALLOWED as to Counts II, III, IV and XI, and DENIED as to Counts I, V, VII, VIII, IX and X.
When ruling on a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6)
, the court must accept as true all well-pleaded facts, and give the plaintiff the benefit of all reasonable inferences. See
Cooperman v. Individual, Inc. , 171 F.3d 43, 46 (1st Cir.1999). Applying this principle, the relevant facts are as follows.
Thomas has been a police officer with the Town of Salisbury since the 1980's. (Compl. (Docket No. 1) ¶¶ 16, 19). He is also an attorney. (Id. ¶ 23). As a police officer, Thomas is a member of the New England Police Benevolent Association ("NEPBA" or the "Union"), which has a collective bargaining agreement ("CBA") with the Town. (Id. ¶ 3). It is undisputed that Article 8 of the CBA provides that "police officers are not to be removed, dismissed, discharged or suspended in any manner except for just cause." (Town Mem. (Docket No. 22) at 2). Until the events at issue here, Thomas was an officer in good standing, and had been the recipient of numerous accolades in connection with his law enforcement work. (Compl. ¶¶ 20-25). He worked well under a number of Chiefs, including, for a while, the defendant David L'Esperance. (Id. ¶¶ 19, 24-28). As Thomas alleges, based upon his "career achievements and credentials, up until 2011, it was clear that he was on the fast track to rise through the ranks of the SPD [Salisbury Police Department] and to the pinnacle of his profession." (Id. ¶ 29).
In or about April 2006, L'Esperance was selected as Salisbury's new Police Chief.
(Id. ¶ 33). According to the plaintiff, L'Esperance was the choice of Harrington, the Town Manager. (Id. ¶¶ 33-34). Thomas contends that he worked well with L'Esperance until about 2009, as described below. (See id. ¶¶ 35-87). During the time period between 2006 and 2009, Thomas reported to L'Esperance what he believed to be inappropriate behavior on the part of various police officers, in particular the defendant Alder, who was also an officer of the NEPBA, and the defendant Sullivan, who allegedly displayed a great deal of animosity toward Thomas. (Id. ¶¶ 41-60).
A number of officers and others were dissatisfied with the tenure of L'Esperance as Police Chief, and a vote of "no confidence" was taken by the Union on or about February 4, 2009. (Id. ¶¶ 78-81). When L'Esperance learned that Thomas was among those who had not supported him, L'Esperance became extremely upset and declined to promote Thomas to acting-Sergeant, despite previous promises to do so. (Id. ¶¶ 84-87). Due to various allegations of wrongdoing on the part of L'Esperance, L'Esperance was placed on paid administrative leave on or about December 5, 2010, and eventually resigned on January 18, 2011. (Id. nn.1 & 2). The defendant Sullivan became the Acting Chief. (Id. ¶ 88).
According to Thomas, Harrington independently authorized an investigation into the allegations against L'Esperance, and hired defendant Robert St. Pierre to conduct the investigation. (Id. n.3). Thomas alleges that St. Pierre, the former Chief of the Salem Police Department, was a long-time friend of Harrington, and that his hiring was improper for a number of reasons, including the fact that the Board of Selectmen had not given permission to conduct the investigation. (Id. ¶¶ 101-09). Moreover, the decision to proceed with St. Pierre was allegedly done so that Harrington would be protected from exposure and could direct the investigation. (Id. ¶ 105). According to Thomas, while L'Esperance was the focus of the investigation, the plaintiff, too, was a "target" from the outset. (Id. ¶¶ 122-27).
On January 24, 2011, St. Pierre issued a report (the "L'Esperance Report"), which detailed serious violations of state law and the Police Department's Code of Conduct on the part of L'Esperance. (Id. n.3). The L'Esperance Report also contained allegations concerning Thomas, and Harrington independently authorized St. Pierre to begin a new investigation of Thomas in late February 2011. (Id. ). According to Thomas, during the period of his investigation, then Acting Chief Sullivan, along with other police officers, "continued, on a daily basis, attacking Thomas, trying to ruin his reputation." (Id. ¶ 99).
On or about February 23, 2011, about a month after the issuance of the L'Esperance Report charging Thomas with wrongdoing, and shortly before his own investigation began, the plaintiff filed what he has characterized as a "whistle blowing" letter with the then-Chairman of the Board of Selectmen, Donald Beaulieu, and with Harrington. (Id. ¶¶ 111-12). Therein, Thomas alleged that Acting Chief Sullivan had sexually harassed female dispatchers working with the Police Department. (Id. ¶¶ 111-12, 114). Thomas subsequently learned that Harrington had been made aware of these charges by Police Officer McNeil earlier, but that the two men had decided to cover it up so as to avoid further humiliation or embarrassment for Salisbury. (Id. ¶¶ 113-16). Harrington allegedly rewarded McNeil by promoting him to Sergeant, a position that Thomas was already slated to fill. (Id. ¶ 116).
Thomas was placed on administrative leave on May 25, 2011 while his investigation was pursued. (Id. n.8). Thomas alleges that because of jealousy and personal animosity, many SPD employees submitted false and defamatory statements to St. Pierre about him. (Id. ¶¶ 129-54). Sullivan was allegedly an instigator of the negative information provided, and St. Pierre was allegedly biased against Thomas and would coach witnesses to provide negative information. (Id. ). There are no allegations that Harrington provided any information in the investigation, although Thomas alleges that Harrington was kept "apprised of the investigation during its pendency" by St. Pierre. (Id. ¶ 158). The events surrounding this investigation of Thomas, and his subsequent exoneration, form the principal bases of his claims of wrongdoing in this case.
On or about September 1, 2011, St. Pierre issued a report (the "Thomas Report"), which was mailed to Thomas on September 28, 2011. . In the report, St. Pierre found that there were grounds to discharge Thomas, namely: (1) that during the period October 1, 2007 through March 1, 2008, Thomas studied for the Bar Exam while on duty as a police officer, and (2) that Thomas knowingly allowed "then-Chief David L'Esperance to submit false information concerning [the plaintiff's] work history, including but not limited to the position [he] held and as to disciplinary action that had been taken against [him,]" in order to gain admission to the FBI National Academy. (Compl. Ex. 1 at 1). Thomas contends that these charges are patently false.
Meanwhile, in response to Thomas' complaint about Sullivan, Harrington had again hired St. Pierre who, in turn, had hired Police Lt. Mary Butler of the Salem Police Department to assist in a new investigation. (Id. ¶¶...
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