Welch v. Ciampa

• Decision Date: 23 September 2008
• Docket Number: No. 07-2470.,07-2470.
• Parties: Robert J. WELCH, Plaintiff, Appellant, v. Christopher CIAMPA, individually and in his capacity as Police Chief of the Town of Stoughton, Massachusetts, Town of Stoughton, Massachusetts, Richard Levine, individually and in his capacity as a Select Person for the Town of Stoughton, Massachusetts, John Kowalczyk, individually and in his capacity as a Select Person for the Town of Stoughton, Massachusetts, Manuel Cachopa, individually and in his capacity as Police Chief of the Town of Stoughton, Massachusetts, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

542 F.3d 927

Robert J. WELCH, Plaintiff, Appellant, v. Christopher CIAMPA, individually and in his capacity as Police Chief of the Town of Stoughton, Massachusetts, Town of Stoughton, Massachusetts, Richard Levine, individually and in his capacity as a Select Person for the Town of Stoughton, Massachusetts, John Kowalczyk, individually and in his capacity as a Select Person for the Town of Stoughton, Massachusetts, Manuel Cachopa, individually and in his capacity as Police Chief of the Town of Stoughton, Massachusetts, Defendants, Appellees.

No. 07-2470.

United States Court of Appeals, First Circuit.

Heard April 10, 2008.

Decided September 23, 2008.

Hillary Schwab, with whom Harold L. Lichten and Pyle, Rome Lichten, Ehrenberg, & Liss-Riordan, P.C., was on brief for appellant.

Michele E. Randazzo, with whom Jackie Cowin and Kopelman and Paige, P.C., was on brief for appellee Town of Stoughton.

Valerie A. McCormack, with whom Stephen C. Pfaff and Louison, Costello, Condon & Pfaff, LLP, was on brief for appellees Christopher Ciampa, Manuel Cachopa, Richard Levine and John Kowalczyk.

Before TORRUELLA, CUDAHY,^* and LIPEZ, Circuit Judges.

CUDAHY, Circuit Judge.

Robert Welch, a police officer in the Town of Stoughton (the Town), filed this lawsuit against the Chief of Police, the former Police Chief, two members of the Town's Board of Selectmen (the Board) and the Town, alleging that the defendants impermissibly retaliated against him for exercising his rights under the First Amendment of the Federal Constitution. He also sought relief under a state whistleblower statute and under the common law theory of tortious interference with advantageous business relations. Welch appeals from the district court's grant of summary judgment for the defendants. We affirm in part and reverse and remand in part.

I. Background

We set forth the facts in the light most favorable to Welch, the nonmoving party. Ramos-Santiago v. United Parcel Serv., 524 F.3d 120, 122 (1st Cir.2008). Welch joined the Stoughton Police Department (the Department) in 1987, and in 1999 he was promoted to sergeant. The following year, he was made detective sergeant, the highest-ranking position in the department's detective division. As detective sergeant, Welch received a stipend in addition to his sergeant's salary and was eligible for overtime and detail assignments that are not available to sergeants. The Police Chief appoints officers to the detective sergeant position and other so-called "specialist" positions, and the appointees serve in those positions from July 1 through June 30 of the following year. The decision to appoint or to reappoint individuals to specialist positions is within the sole discretion of the Police Chief. Welch was reappointed to the detective sergeant position each year from 2000 through 2004.

This lawsuit emerged from public controversy surrounding the management of the Stoughton Police Department. In June 2004, the Board of Selectmen decided not to renew Police Chief Manuel Cachopa's contract. This decision reverberated throughout the Town and through the Department and in short order a campaign was initiated to recall the selectmen who had voted not to renew Cachopa's contract and to replace them with defendants Richard Levine and John Kowalczyk. Levine and Kowalczyk promised to reinstate Cachopa as Chief if they were elected.

The recall campaign divided the Department. A number of officers were actively involved in supporting the recall effort, attending meetings and publicly expressing their support for the recall. Defendant Christopher Ciampa, a sergeant at the time, was an outspoken supporter of the campaign, hosting a weekly show on community public television called "Enough is Enough" that focused on the recall campaign and the Board's failure to renew Cachopa's contract. For his part, Welch decided not to participate in any campaign activities related to the recall. His decision to remain neutral was regarded as a betrayal by Cachopa, who allegedly perceived those who did not publicly support the recall as being against it and, by extension, against him. Cachopa threatened Welch, making comments such as "you picked the wrong side" and "there are going to be changes in July." Welch understood this last comment to mean that he would not be reappointed to the detective sergeant position. Cachopa and some of his supporters would "stare down" officers who did not actively support the recall.

While the recall efforts were underway, two lieutenants in the Department began looking into allegations of police misconduct. The allegations, which included charges of witness intimidation and attempted extortion, implicated Cachopa and several other police officers. A special prosecutor was appointed to handle the investigation and a grand jury was empaneled. In August 2004, acting Police Chief David Chamberlin asked Welch to assist the special prosecutor by participating in the Department's investigation into the alleged misconduct. Welch interviewed witnesses and wrote reports on his findings over the next two months. He also attended the grand jury proceedings, helped the prosecutor prepare witnesses for their grand jury appearances and testified before the grand jury about the results of his investigation.

The investigation exacerbated the divisions within the Department. Officers who supported the recall harassed Welch and other officers who were perceived as not supporting the recall, calling them "weasel" and "rat." In addition, Cachopa told Welch that he had made a mistake by becoming involved in the investigation. After becoming involved in the investigation, Welch found rubber rats, derogatory cartoons and, on one occasion, a bullet in his mailbox at the police station. In November 2004, Town Manager Mark Stankiewicz placed Cachopa and six other officers on administrative leave after learning that Welch and others who were assisting in the investigation were being harassed. Levine and Kowalczyk were elected to the Board that same month. Shortly thereafter, the Board reinstated Cachopa as Police Chief and directed Stankiewicz to reinstate the other officers who had been placed on leave.

After resuming his position as Chief, Cachopa sought to have Ciampa made deputy chief. Ciampa was a sergeant at the time and in attempting to have Ciampa made deputy chief, Cachopa passed over three higher-ranking lieutenants. Because deputy chief is a civil service position, Stankiewicz told Cachopa that Ciampa could not be made deputy chief without going through the civil service process and he was made an "executive officer" instead. In this capacity, Ciampa was the second in command at the Department. In December 2004, Cachopa changed the shift assignments of three lieutenants who had been involved in the investigation of the Department. He also moved the lieutenants' offices so that they would have to share office space with some of the sergeants who were the subject of the grand jury proceedings. The lieutenants complained to Stankiewicz about the retaliatory atmosphere at the Department and Stankiewicz hired an independent consultant to look into their complaints. The consultant concluded that retaliation was occurring within the Department and that in changing the lieutenants' shifts and work conditions, Cachopa was motivated by a desire to get back at them for their perceived involvement in the grand jury investigation.

Although he was vindicated by the results of the recall election, Cachopa's tenure as reinstated Chief was relatively brief. In March 2005, the grand jury indicted Cachopa and two other officers. Cachopa was placed on administrative leave and the Board promoted Ciampa from "executive officer" to acting chief. In June 2005, Ciampa made the annual specialist position appointments. Welch and one other officer, Detective Craig Lepro, were not reappointed to their specialist positions. Welch was replaced with an officer who had been a vocal supporter of Cachopa and who was among the officers who had been placed on leave in November 2004 out of concern that he was interfering with the grand jury investigation.

Welch filed this lawsuit in September 2005. He brought a claim under 42 U.S.C. § 1983 alleging that Ciampa, Levine, Kowalczyk and the Town of Stoughton violated his First Amendment rights by removing him from the detective sergeant position in retaliation for his refusal to participate in the recall campaign. In addition, Welch brought a claim against Ciampa for tortious interference with advantageous business relations. In August 2006, Welch amended his complaint to add Cachopa as a defendant. Welch also added a claim against the individual defendants under the Massachusetts Civil Rights Act and a claim against the Town under the Massachusetts Whistleblower Act. In June 2007, the defendants moved for summary judgment and in September 2007, the district court, in an oral decision from the bench, granted summary judgment for all defendants on all claims. This timely appeal followed.¹

II. Discussion

We review a district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in its favor. Pineda v. Toomey, 533 F.3d 50, 53 (1st Cir.2008). To defeat a motion for summary judgment, the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "A genuine issue for trial exists as to [a material] fact if there is evidence from which a reasonable trier could decide the fact either way." Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir.2003). Although we give the nonmoving party the benefit of all reasonable inferences, a party cannot rest on "conclusory allegations, improbable inferences, [or] unsupported speculation" to defeat a motion for summary judgment. McCarthy v....