Two security officers at the University of Massachusetts-Lowell could sue for violations of their First Amendment rights based on claims they were fired for speaking out publicly against unfair hiring practices and sexual harassment, a Superior Court judge in Massachusetts has found.
The individual defendants, which included the school’s former chancellor and current chief of police, argued that the plaintiffs could not show they were speaking “as citizens on a matter of public concern” for the purpose of maintaining a freedom-of-speech claim in the public employment context.
But Judge Kathe M. Tuttman, in denying in part a motion to dismiss, found the plaintiffs’ allegations satisfied those elements of a prima facie case under the framework iterated by the U.S. Supreme Court most recently in Garcetti v. Caballos and Lane v. Franks.
With respect to their status vis-à-vis the speech at issue, Tuttman wrote that the plaintiffs were “speaking as citizens (rather than employees) because their speech concerned hiring practices and the report of sexual misconduct, neither of which formed part of the plaintiffs’ official duties as police officers. While the plaintiffs learned of the issues by virtue of their employment, that fact alone has no bearing on the citizen analysis.”
The 23-page decision is McLaughlin, et al. v. Meehan, et al.
Plaintiffs’ counsel Laurence E. Sweeney said he did not file claims under state whistleblower laws protecting public employees because his clients could not satisfy certain essential elements for such claims, particularly the need for aggrieved employees to provide employers the opportunity to rectify a problem before going public in the form of written notice.
“The claims that we brought were more than sufficient,” the North Chelmsford lawyer said.
Sweeney said the most significant issues raised in the case involved the free speech rights of public employees.
“This clearly was a matter of public concern when you’re talking about safety issues and sexual misconduct,” Sweeney said.
The university, which was represented by the Attorney General Office, declined an interview request, instead issuing an email that stated it was pleased the judge dismissed “certain counts and an employee from the lawsuit under the very low standard of proof that must be applied at this early stage of the proceedings. We expect similar favorable results as the litigation proceeds and the applicable standards of proof for the plaintiffs become higher.”
Boston employment and business litigator Andrea C. Kramer said the decision was “very much” in line with the current trend in Massachusetts of allowing more employment cases to get past the dispositive motion stage.
Meanwhile, Springfield litigator Amelia J. Holstrom said she was struck by the egregiousness of the defendants’ behavior alleged in the complaint.
“I think this is going to be one of those cases that settles or one that a jury is going to decide,” Holstrom said. “Based on credibility [of the witnesses], a reasonable fact-finder may very well side with the two employees.”
Plaintiff Paulino Carteiro began working as a security officer in the UMass-Lowell Police Department in 2009. Plaintiff Timothy McLaughlin joined the department in 2011.
In 2010, the school hired defendant Randolph Brashears as police chief. The plaintiffs alleged that, shortly after his arrival, Brashears implemented a policy of filling job openings in the department with retired police officers from New Hampshire who hoped to earn a second pension in Massachusetts.
According to the plaintiffs, security on campus suffered as a result of the “patronage scheme,” partly because New Hampshire hires typically neglected their duties by taking two- to three-hour lunch breaks at local eateries. The plaintiffs further claimed that officers who voiced their objections to the hiring practices were ridiculed and subjected to verbal and written reprimands.
In 2012, Carteiro began sending anonymous letters to newspapers and law enforcement describing the situation. In a February 2013 letter to the FBI, Carteiro complained about the patronage policy and sexist behavior by one of the officers in the department, writing that he feared “the hostile work environment we currently face creates an environment in which one of us or myself will snap and put the entire university at risk.”
According to the plaintiffs, the department commenced an investigation to identify the source of the letters.
Carteiro alleged that, while on duty in the early morning hours of March 28, 2013, he was approached by Kenneth Wilson, a department supervisor, who insisted that he “go for a ride” with him. Carteiro claimed Wilson drove him to a nearby campus police station where he was interrogated about the FBI letter by two fellow officers, Scott Childs and Mark Schaaf.
Carteiro admitted to writing the letter, but refused to provide further information, even though Childs and Schaaf allegedly threatened “things were going to get ugly” and that Carteiro could be brought before a grand jury. Allegedly under pressure, Carteiro did sign a consent form for a search of his home computer. He then drove home in his own car followed by Schaaf and Childs in an unmarked cruiser.
The two officers seized Carteiro’s computer and, after getting the password, left. Department heads returned the computer the following day.
All told, Carteiro claimed he was detained for approximately seven hours.
The university subsequently suspended Carteiro for falsely claiming he was a police officer, publishing false claims about the department’s hiring practices, and publishing a false threat to campus safety. The university terminated Carteiro on May 31, 2013, following a disciplinary hearing.
McLaughlin’s claims stemmed from an alleged sexual harassment incident that he observed at work in October 2013. According to McLaughlin, he observed Schaaf watching a video online in connection with a sexual assault case. McLaughlin claimed he heard Schaaf comment — with female officers present in the room — that the complainant was “more of a slut than a victim.” Schaaf also allegedly made other sexist comments about the victim.
The plaintiffs alleged that even though McLaughlin reported the incident to his superiors, Schaaf escaped discipline and soon obtained a promotion to detective.
According to the complaint, Childs and two Nashua police officers came to McLaughlin’s house in late March 2013, at the same time Carteiro was under suspicion by colleagues in the department for sending the FBI letter. McLaughlin claimed the officers accused him of being the author of the FBI letter.
Shortly after the incident, the department levied disciplinary charges against McLaughlin for conduct unbecoming, gross insubordination, and many of the same charges levied against Carteiro. McLaughlin was terminated on June 13, 2013, following a disciplinary hearing.
Carteiro and McLaughlin subsequently sued Martin T. Meehan (the UMass-Lowell chancellor at the time of the events in question before becoming president of the UMass system), Brashears, Wilson, officers Childs and Schaaf, and several other school administrators for various civil rights violations and intentional torts.
The defendants moved to dismiss for failure to state a claim.
Motion to dismiss
Turning to the complaint’s First Amendment claims, Tuttman said plaintiffs alleging violations of free speech rights in the public employment context must show: (1) they were speaking as citizens on a matter of public concern; (2) their interest in commenting on matters of public concern outweighed their employer’s interest in promoting the efficiency of the public services it provides; and (3) the protected expression was a substantial or motivating factor in the adverse employment decision.
In addition to finding the allegations showed the plaintiffs were speaking as citizens on a matter of public concern, Tuttman found the plaintiffs satisfied the second factor of a prima facie case.
“Given the significance of the allegations concerning both the sexual misconduct and the patronage scheme, if true, as I must assume at this point, the defendants can put forth no justification that would outweigh the plaintiffs’ interest in exposing the misconduct,” the judge wrote.
On the issue of causation, Tuttman concluded the complaint set forth in “compelling detail” the link between the speech in question and the alleged retaliation.
“Presently, viewing the facts alleged and the exhibits attached in the plaintiffs’ favor, the speech about the sham hiring practices was the primary reason the plaintiffs were fired,” Tuttman wrote.
The judge likewise concluded that the complaint stated a First Amendment freedom-of-association claim, observing “the plaintiffs were a minority group within the Department, associating with each other for the purpose of redressing grievances about the Department’s hiring practices and the sexual misconduct of other officers.”
Tuttman found Carteiro pleaded a valid Fourth Amendment claim in that Schaaf, Wilson and Childs failed to articulate either reasonable suspicion or probable cause for the seizure and detention of Carteiro and his computer.
The judge also decided the plaintiffs could proceed with claims under G.L.c. 12, §§11H and 11I. Those sections of the Massachusetts Civil Rights Act provide remedies for interference with the exercise of constitutional or statutory rights by threats, intimidation or coercion. Tuttman similarly found grounds for proceeding with several tort claims, including invasion of privacy, false imprisonment, defamation and intentional infliction of emotional distress.
As to the tort claims, Tuttman rejected the argument that the defendants were shielded by common law qualified immunity, pointing to allegations that they “acted out of a corrupt motivation to shield and perpetuate their unlawful hiring practices.”
On the other hand, the judge found the complaint’s allegations failed to indicate the school’s human resources chief had any knowledge of the events in question. Accordingly, Tuttman dismissed all claims as to that defendant.
In addition, Tuttman dismissed the plaintiffs’ claims for substantive and procedural due process violations, as well as federal civil rights claims alleging the defendants conspired to deprive them of equal protection of the law.