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Howcroft v. City of Peabody
Citations: 51 Mass. App. Ct. 573; 747 N.E.2d 729; 17 I.E.R. Cas. (BNA) 1183; 2001 Mass. App. LEXIS 310Docket: No. 98-P-2151
Court: Massachusetts Appeals Court; May 17, 2001; Massachusetts; State Appellate Court
Frederick Howcroft, a former police officer of Peabody, has filed a lawsuit against the city of Peabody and several police officers, alleging violations of his First Amendment rights due to retaliatory actions taken against him for speaking out about smoking in public buildings, specifically at the Peabody police station. His concerns arose after the Governor approved a smoking ban in public places on January 14, 1988, which included police stations, and a separate statute prohibiting smoking for police officers and firefighters hired after January 1, 1988. Howcroft claims the defendants retaliated against him for expressing his concerns, which he contends were matters of public interest rather than personal grievances. In his verified amended complaint, he alleges violations of Federal and State civil rights, intentional infliction of emotional distress, and interference with contractual relations. The Superior Court granted summary judgment in favor of the defendants on all counts, leading to Howcroft's appeal. The court is tasked with examining the evidence in favor of Howcroft, particularly regarding whether his statements about smoking were personal grievances or protected speech on a public issue. Howcroft has a history of health issues related to smoke exposure, having quit smoking due to sensitivities that developed over time. Concerns about tobacco smoke were raised by Howcroft to his superiors starting in 1987, but no action was taken until June 22, 1988, when Chief Robert Champagne issued a General Order prohibiting smoking in the police control room while designating the front lobby as the smoking area. This order complied with G. L. c. 270, § 22 but overlooked G. L. c. 41, § 101A, which prohibited smoking by police officers appointed after January 1, 1988, both on and off duty. In early 1989, Howcroft, then a patrol sergeant, requested that smoking be banned during roll call due to his sensitivity. In retaliation, Lieutenant John McCorry smoked cigars at roll call and blew smoke in Howcroft's face when confronted. Following Howcroft's complaints about smoking violations, McCorry ordered him to stand in a corner during roll call and later reassigned him to an indoor position despite Howcroft’s concerns about health risks. Howcroft appealed to Captain Milton Cottrell for a reversal of the reassignment and enforcement of smoking regulations, but his requests were denied. Howcroft subsequently informed Champagne of the violations, who dismissed his concerns, asserting authority over the building's smoking status and failing to provide a written response as required. Although an agreement was reached to keep the connecting door between the smoking and non-smoking areas closed, McCorry ordered it to remain open. This resulted in Howcroft suffering nosebleeds and seeking medical attention. Despite presenting medical recommendations against smoke exposure, Champagne dismissed one doctor’s credibility, and Cottrell did not acknowledge Howcroft’s letters, supporting McCorry instead. Howcroft's health worsened due to sinus issues, prompting him to inform McCorry on December 31, 1989, that he was going home sick. McCorry indefinitely relieved him from duty, requiring a doctor's note for his return. When Howcroft sought to return to work on January 3, 1990, Cottrell denied the request and warned him not to contact the chief. On January 24, Cottrell, following Champagne's directive, ordered Howcroft to report to the station and write a report on his condition, despite Howcroft having already provided this information in previous correspondence. Howcroft requested legal counsel before responding but was dismissed by Cottrell for noncompliance. On January 29, following accusations of abusing sick leave, Champagne ordered Howcroft back to work, which he complied with immediately. On January 30, McCorry assigned smokers to Howcroft's work area, and when Howcroft protested, McCorry dismissed him. Howcroft subsequently requested air quality testing at the station. On January 31, exposure to smoke exacerbated Howcroft's sinus condition, leading to a hospital visit where he was diagnosed with a sinus infection. On February 8, Howcroft was suspended for five days for alleged sick leave abuse after providing a doctor's note prohibiting exposure to smoke. The mayor increased the suspension to ten days upon appeal. Howcroft appealed to the Civil Service Commission, where an administrative magistrate found the disciplinary action to be a pretext aimed at unjustly punishing Howcroft, recommending reversal of the suspension. The commission adopted the magistrate's findings but reduced the suspension to one day. On February 21, 1990, Howcroft filed a lawsuit in the Superior Court. Ongoing conflicts continued, with McCorry ordering Howcroft to work in smoking areas in March 1990. Correspondence between the parties failed to resolve the issue, notably a letter from Chief Champagne on April 3, 1990, dismissing Howcroft's complaints and suggesting that minor smoking infractions were permissible to allow smoking breaks, despite existing legislation against smoking by certain officers. In late 1990, Howcroft sustained a hand injury while on duty, leading to a series of disputes with his employer, Champagne. Although granted some leave under rule 25, Howcroft was not allowed to attend family or holiday events. In October 1991, he received a three-day unpaid suspension for alleged sick leave violations, which an arbitrator rescinded in spring 1992. Howcroft suffered another hand injury in early 1992 and continued to be restricted from leaving his home. By 1993, his health had deteriorated significantly, culminating in a diagnosis of depression after he worked his last shift on November 23, 1993. The city denied his application for disability benefits under G. L. c. 41, § 111F, prompting Howcroft, through his union, to appeal, arguing that his disabilities were linked to his employment conditions, including treatment during leave and stress from workplace smoking complaints. The city contested the causal relationship between Howcroft’s ailments and his employment. An arbitrator reviewed extensive expert testimony and determined on February 20, 1998, that the city had violated the collective bargaining agreement by denying Howcroft's benefits. The arbitrator awarded benefits from November 23, 1993, to August 11, 1996, when Howcroft received an accidental disability retirement. The arbitrator concluded that Howcroft's employment conditions post-smoking complaint led to various mental health issues and that his disability was causally related to these experiences. Additionally, Howcroft filed an affidavit against the defendants' motions, affirming his complaint allegations and indicating that his advocacy for compliance with smoking laws in the police station benefited others. He noted the irritation of fellow officers with tobacco smoke and his attempts to enforce smoking regulations through proper channels. The legal issues at hand require viewing all evidence favorably toward Howcroft, with the defendants bearing the burden to show no genuine issues of material fact exist. A claim under 42 U.S.C. § 1983 asserts that a State cannot condition public employment in a manner that infringes upon an employee's constitutional right to freedom of expression, as established in Connick v. Myers. The State’s interest in regulating employee speech differs from its interest in regulating general citizen speech. The First Amendment protects not only political speech but also addresses various significant secular issues. The balance between an employee's right to comment on public concern and the State's interest in public service efficiency is pivotal. The evaluation of whether an employee's speech pertains to public concern involves analyzing the "content, form, and context" of the statements made, as seen in Connick v. Myers. An employee's grievances about internal matters do not generally warrant First Amendment protections unless they raise issues of public concern. Howcroft claims his complaints regarding the non-enforcement of a tobacco regulation relate to public health concerns, which are of significant public interest, evidenced by legislative actions banning smoking among certain public employees. The inquiry into whether speech is protected under the First Amendment is a legal question, not a factual one, necessitating an independent review by appellate courts to prevent violations of free speech. Secondhand tobacco smoke poses significant public health risks, prompting substantial public discourse regarding smoking in public areas. Howcroft expressed concerns not only for his health but also about the Peabody police department's failure to enforce smoking regulations, specifically § 22. He formally notified Chief Champagne about the non-compliance on December 7, 1989, requesting an investigation, but received dismissive feedback asserting the station was a "smoking building." Howcroft's affidavit indicates his intent to advocate for enforcement of smoking laws, which does not disqualify him from First Amendment protections, even with a personal stake in the issue. The defendants' actions, including McCorry’s disrespectful behavior towards Howcroft, highlight a systemic failure to uphold the law. There was also a lack of communication regarding the smoking ban for officers appointed after January 1, 1988. The context of the legislation reflects a strong public interest in health, making Howcroft's expressions protected speech under the First Amendment. His personal grievances do not invalidate the defendants' neglect of their enforcement duties. Legal precedents emphasize that public employees should be able to report misconduct without fear of reprisal, and violations threatening public health are of public concern, regardless of their origins in employee disputes. Dismissing a public employee’s speech as unprotected due to personal interests undermines public discourse on significant issues, particularly regarding allegations of malfeasance by police officials. Speech revealing corruption or misconduct by city officials is inherently of public concern, making it unnecessary to evaluate the speaker's motives. In reviewing the allowance of summary judgments, it is concluded that the employee’s speech pertains to matters of public importance. The Pickering Balance Test requires weighing the employee's right to communicate on public matters against the employer's need to maintain workplace efficiency. While police departments require discipline and morale, the defendants did not show a valid interest in suppressing the employee's speech. Allegations of disruption, such as the employee's early departures and absence due to illness, were attributed to the defendants' retaliatory actions rather than the employee's speech. It is crucial to prevent public employers from silencing employees solely based on disagreement with their speech's content. The strong public interest in exposing abuses of power by officials provides robust First Amendment protection for such speech, as demonstrated in comparable case law. The balance favors protecting the employee’s rights against retaliatory actions for speaking out on important issues. Reports of sexual harassment made by an employee concerning an executive assistant to a county commissioner are deemed matters of public concern, thus warranting protection even if the employee's motivation is personal. This is supported by *Caron v. Silvia*, contrasting with *Smith v. Commissioner of Mental Retardation*, where the court deemed the statements unprotected due to their personal nature. The record indicates no disruption to the workplace from Howcroft’s complaints, and he appropriately communicated his concerns privately to superiors and sought help from relevant public agencies and his union. Howcroft’s expressions were not merely complaints but were in accordance with G. L. c. 270, § 22, which aims to safeguard public health regarding tobacco. The defendants’ actions in retaliating against Howcroft for his speech, which highlighted their misconduct and abuse of power, failed to justify any suppression of his expression. A genuine issue of material fact exists regarding potential retaliatory employment decisions against Howcroft, indicating that summary judgment for the defendants on his § 1983 claim was erroneous. In contrast, the court affirmed summary judgment for the city on Howcroft’s state civil rights claim under the Massachusetts Civil Rights Act (MCRA), concluding that a municipality is not classified as a 'person' under this statute. This distinction is drawn from prior case law, noting that MCRA does not require action under color of law, unlike § 1983, which allows for municipal liability based on federal precedent. Legislative history does not influence the Massachusetts Civil Rights Act (MCRA). G. L. c. 4, § 7, Twenty-third defines "person" to include only "corporations, societies, associations, and partnerships," and this definition governs unless a clear contrary intent is expressed, which is absent in the MCRA. Courts have established that general terms like "persons" typically do not include the Commonwealth or its political subdivisions, indicating that if the Legislature intended to include government entities, it would do so explicitly. Summary judgment favors individual defendants in their official capacities, affirming that to bypass state sovereign immunity in damage suits, plaintiffs must target state officials in their individual capacities. The MCRA does not create substantive rights but provides a mechanism to seek relief from rights interference based on federal or state laws. To establish a claim under the MCRA, a plaintiff must demonstrate that their rights were interfered with through "threats, intimidation, or coercion." In this case, Howcroft has presented sufficient evidence suggesting the defendants engaged in harassment and intimidation to suppress his free speech rights regarding smoking regulations in the station house. This includes actions such as ignoring state smoking laws, ordering Howcroft to be quiet, blowing smoke in his face, and attempts to reassign him to increase his exposure to smoke. These allegations collectively indicate a potential trial issue regarding whether the defendants engaged in retaliatory conduct that constitutes prohibited intimidation. Intimidation is defined as instilling fear to compel or deter conduct, as established in Planned Parenthood League of Mass. Inc. v. Blake and Broderick v. Roache. A scheme involving harassment and wrongful discipline of a police officer could meet the criteria for threats or intimidation. The defendants' motions for summary judgment regarding these claims were denied, as they failed to demonstrate entitlement to judgment as a matter of law. The concept of qualified immunity applies to both § 1983 and Massachusetts Civil Rights Act (MCRA) claims, shielding public officials performing discretionary functions from liability unless the right allegedly violated was not "clearly established" at the time of the action. The court noted that Howcroft's right to voice concerns about tobacco smoke was established by prior case law and legislation, with no basis for qualified immunity at this stage. Regarding the claim of intentional infliction of emotional distress, Howcroft must demonstrate that the defendants intended to cause distress, that their conduct was extreme and outrageous, and that it resulted in severe distress for Howcroft. However, under the Massachusetts Tort Claims Act, municipalities cannot be held liable for intentional torts, leading to the dismissal of Howcroft's claims against the city and other defendants in their official capacities. Howcroft's claims for intentional infliction of emotional distress against individual defendants are not protected by governmental immunity, allowing these claims to proceed to jury trial. The court reversed the summary judgment dismissing this count for individual defendants. Regarding the claim of intentional interference with contractual or business relations, Howcroft must prove the existence of a contract or relationship, the defendants’ knowledge of it, intentional interference for improper purposes, and resulting damages. The defendants contended there was no evidence of improper means or motive; however, the court found that a jury could reasonably conclude otherwise. Therefore, summary judgment for the individual defendants on this count was also deemed improper. The court affirmed the dismissal of Howcroft's claims against the city and individual defendants in their official capacities but reversed the dismissals of civil rights claims, emotional distress claims, and interference claims against individual defendants. The case is remanded for further proceedings. Howcroft's challenge to the summary judgment grant concerning defendants McCorry and Champagne was rejected, as the court adequately addressed the liability of all defendants and Howcroft had sufficient opportunity to present relevant materials. There were no unexplored factual issues identified by Howcroft, confirming that the summary judgment process was appropriately handled. No party filed a motion to strike documents in the appendix, which was referenced as necessary for presenting facts in line with summary judgment review rules. The term "the defendants" generally refers to individual defendants unless context indicates otherwise. It was clarified in *Plymouth v. Civil Serv. Commn.* that the applicability of a specific statute only pertains to officers appointed after January 1, 1988. The record does not specify where roll call occurred in the building. Howcroft filed a grievance through his union, and the Labor Relations Commission found no improper reassignment under the collective bargaining agreement, dismissing the prohibited practice charge. However, McCorry’s reassignment of Howcroft to operations resulted in a junior sergeant overseeing him, marking a deviation from past practices. Howcroft responded to Cottrell the following day, and although defendants disputed it, the allegation was present in both the original and amended complaints, verified by Howcroft's affidavit opposing defendants' summary judgment motions. A DLI engineer in May 1990 determined that air quality met regulations but advised against recirculating tobacco-contaminated air to nonsmoking areas. Rule 25 mandates that officers unable to work due to illness or injury remain at their listed residence unless permitted otherwise. Section 111F provides that police officers injured on duty without fault receive paid leave during their incapacity. Howcroft's letter from December 7, 1989, referenced G. L. c. 270.22. Under Section 1983, any person who, under the color of law, deprives a citizen of rights secured by the Constitution is liable. The summary judgment for the city and individual defendants in their official capacities was affirmed, as they do not qualify as "persons" under Section 1983 when the action is viewed as against the official’s office, thus implicating the State. A municipality can be liable under Section 1983 if the injury results from actions of officials that can be considered municipal acts or from a municipal policy or custom causing the injury. Howcroft must demonstrate that his speech was a substantial or motivating factor in the adverse employment action he faced. While the defendants acknowledge that he experienced adverse employment action, they argue that his speech did not pertain to matters of public concern and that their employment decisions were justified responses to his conduct. A claim under section 1983 requires the challenged conduct to be attributable to a person acting under state law and to result in a denial of constitutional or federal rights. The defendants do not contest that they acted under color of state law as police officers. However, Howcroft’s civil rights claims do not invoke the Massachusetts Constitution, focusing instead on federal constitutional principles. The excerpt references a case where the court addressed the implications of a smoking ban for police officers, noting the legislative intent to reduce the risk of hypertension and heart disease, thereby limiting eligibility for disability retirement benefits. This policy aims to ensure a healthier workforce in high-risk positions. The defendants support their arguments with precedent, including Smith v. Fruin. The court in Fruin ruled in favor of the defendants on summary judgment, determining that Smith's complaints regarding second-hand smoke were personal and lacked public interest, as he admitted to speaking only for himself. This ruling is not applicable to the current case, where Howcroft’s concerns were communicated to a superior, which does not negate First Amendment protections. Evidence suggests Howcroft’s speech was a motivating factor in adverse employment actions against him, consistent with prior rulings. Although the question of municipal immunity under the Massachusetts Civil Rights Act (MCRA) was previously reserved, the reasoning from Commonwealth v. ELM Medical Labs carries relevance here. Massachusetts law allows the Attorney General to bring civil actions against interference with constitutional rights. Individuals may also sue for equitable relief and compensatory damages if their rights are interfered with. The motion judge initially granted summary judgment based on preemption by the Labor Management Relations Act, a stance the defendants have since abandoned on appeal. Additionally, the city is not classified as an employer under the National Labor Relations Act, and Howcroft did not pursue claims against the city or defendants in their official capacities.