MEMORANDUM AND ORDER
This case arises from events surrounding the appointment of anew police chief to the Saugus, Massachusetts ("Saugus" or"Town") Police Department. The plaintiff David Putnam ("Putnam"),a lieutenant in the Saugus Police Department, brought suitagainst John Vasapolli ("Vasapolli"), the former Saugus TownManager, Andrew Bisignani ("Bisignani), the current Saugus TownManager, and the Town of Saugus alleging that he was unlawfullypassed over for the police chief position on two separateoccasions. Compl. ¶ 1 [Doc. No. 1]. Putnam alleges that he waspassed over for the position in retaliation for his testimony before the State Ethics Commission regarding an incident in whicha member of the Saugus Board of Selectmen was stopped by policefor driving while intoxicated but, because of his politicalinfluence, was not charged. Id. Putnam claims that he was alsobypassed in retaliation for a police report he drafted about thesame incident. Id. at ¶ 50.
Putnam alleges violations of his First Amendment rights under42 U.S.C. § 1983 by all of the defendants and a violation ofMass. Gen. Laws ch. 149, § 185 by the Town of Saugus. Thedefendants have moved for summary judgment on all of Putnam'sclaims.
A. Factual Background
The following recitation of facts is taken from Putnam'sComplaint, Putnam's Statement of Contested Fact and exhibitsattached thereto [Doc. No. 29], Defendants' Statement of Facts ofRecord as to Which There is no Genuine Issue to be Tried andexhibits attached thereto [Doc. Nos. 24, 35], Putnam's Memorandumin Support of Opposition to Summary Judgment [Doc. No. 28], andDefendants Vasapolli's and Bisigani's Memorandum in Support ofSummary Judgment [Doc. No. 23].
For purposes of deciding Defendants' Motions for SummaryJudgment, where a factual dispute exists, the Court must takePutnam's version of the facts as true, where supported by record evidence, and draw all reasonable inferences in Putnam's favor.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
1. The Parties
Putnam has served as an officer in the Saugus Police Departmentsince 1978. Compl. ¶ 7. He is currently a lieutenant,1 arank he obtained in 1996 at which time he was first on the CivilService list. Id.; Pl.'s Statement of Contested Material Facts("Pl.'s Statement of Facts") ¶ 2. Throughout his tenure, Putnamhas received numerous commendations and has never beendisciplined. Compl. ¶ 7; Pl.'s Statement of Facts ¶ 2.
Putnam holds a Bachelor's degree in psychology and a Master'sdegree in criminal justice. Pl.'s Statement of Facts ¶ 1.Additionally, Putnam has taken college-level courses in criminaljustice and many in-service training programs. Id. CivilService examinations for Saugus Police Chief were administered in1998 and 2002. Id. Putnam received the highest score on bothexaminations. Id.
The Town of Saugus is a municipal corporation organized underthe laws of the Commonwealth of Massachusetts. Compl. ¶ 6.
Vasapolli has served as Saugus Town Counsel since 1981. Pl.'sStatement of Facts ¶ 9. From August 2002 until January 2003, Vasapolli also served as Acting Town Manager of Saugus.Compl. ¶ 4; Defs.' Statement of Material Facts ("Defs.' Statementof Facts") ¶ 5. As Acting Town Manager, Vasapolli was theappointing authority for the Saugus Police Department, includingthe position of temporary police chief. Compl. ¶ 4.
Bisignani was appointed Town Manager of Saugus in January 2003.Compl. ¶ 5; Defs.' Statement of Facts ¶ 7. As Town Manager,Bisignani was the appointing authority for the Saugus PoliceDepartment, including the position of permanent police chief.Compl. ¶ 5.
2. Incidents Creating a Contentious Relationship Between theSaugus Police Department and the Saugus Board of Selectmen
During the period relevant to this case, there were hostileinteractions between members of the Saugus Board ofSelectman2 and members of the Saugus Police Department.Pl.'s Statement of Facts ¶ 4. During this period, Saugus policecharged three of the five members of the Board with criminalactivity and investigated the spouse of a fourth member. Id.
a. Incident Involving Selectman Christie Ciampa
One evening, sometime before July 2004, Putnam was thecommanding officer on duty for the Saugus Police Department. Pl.'s Statement of Facts, Ex. 1, Dep. of David J. Putnam ("PutnamDep.") at 175-76. That evening, Selectman Christie Ciampa("Ciampa") was arrested for the crime of operating a motorvehicle under the influence of alcohol. Id. The arrest followeda motor vehicle accident in which Ciampa was involved. Id.
b. Incident Involving Selectman Maureen Dever
At some time in June 2004, the Saugus Police Departmentreceived a call from someone complaining about a speeding vehiclein the neighborhood. Id. at 176. The license plate number givenby the caller was that of Selectman Maureen Dever's ("Dever")husband. Id. Following the call, Putnam dispatched a sergeantto Dever's home to investigate. Id. Although the Devers werenot home when the sergeant arrived, the sergeant questionedDever's husband on a later occasion. Id.
When word of the investigation was published in a newspaper'spolice log, Putnam received a telephone call from Selectman Deverwho wanted to know what happened. Id. Putnam explained how theinvestigation arose from a complaint called in to the department.Id. at 176-77. To that, Dever replied that she and her husbandwere in Maine that evening and that the speeding complained of"never happened." Id. at 177. Dever expressed her suspicionthat the complaint was falsely made because of "Saugus politics."Id. Putnam explained that if that was so, no one in the Saugus Police Department had been involved.Id. Dever appeared to accept that explanation. Id.
c. Incident Involving Selectman Anthony Cogliano
Selectman Anthony Cogliano ("Cogliano") who operated severalnightclubs in Saugus, frequently complained that he was harassedby Saugus police officers, including Putnam. Pl.'s Statement ofFacts ¶ 4(a). In May 2003, shortly before Putnam was interviewedfor the job of permanent police chief, Putnam ordered thatcriminal charges be brought against Cogliano for a liquor lawviolation arising from Cogliano's operation of a nightclub.Putnam Dep. at 130; Pl.'s Statement of Facts, Ex. 3, Dep. ofAnthony Cogliano ("Cogliano Dep.") at 22; Defs.' Statement ofFacts ¶ 41.
This charge stemmed from Cogliano's refusal to allow Sauguspolice officers to investigate after-hours drinking. Putnam Dep.at 124. The reason supplied by Cogliano for his refusal was that"John Vasapolli told me I don't have to let you in." Id. at126. Cogliano pled to sufficient facts on this charge shortlybefore Town Manager Bisignani bypassed Putnam for the position ofpermanent police chief. Pl.'s Statement of Facts ¶ 18. TownManager Bisignani admits to reading the police report of theincident involving Selectman Cogliano. Pl.'s Statement of Facts,Ex. 5, Dep. of Andrew Bisignani ("Bisignani Dep.") at 33. Prior to this incident, in 1998, Cogliano was involved in analtercation with Saugus Police Officer Scott Crabtree("Crabtree"), in which Cogliano spoke abusively about Sauguspolice officers who refused to work paid details at Cogliano'snightclub. Pl.'s Statement of Facts ¶ 4(a). According toCrabtree, Cogliano told him, "I run that fucking department."Pl.'s Statement of Facts, Ex. 7, Aff. of Scott Crabtree("Crabtree Aff.") at 4.
Cogliano also complained that Saugus police had broken into hisoffice. Cogliano Dep. at 21. At different times during the eventsdescribed above, Cogliano complained about police harassment tothe Town Managers at the time including Steven Angelo ("Angelo"),Vasapolli, and Bisignani. Id. at 52. Cogliano also complainedto Police Chief Edward Felix and later to Police Chief JamesMacKay ("MacKay"). Id. at 50-52.
d. Incident Involving Selectman Michael Kelleher
On the evening of January 3, 2002 and early morning of January4, 2002, Putnam was the officer in charge of the Saugus PoliceDepartment. Pl.'s Statement of Facts ¶ 5(b). That evening,Selectman Michael Kelleher ("Kelleher") had been socializing withthen Town Manager Steven Angelo ("Angelo") and others at variousSaugus nightclubs and bars. Id. at ¶ 5(c). Kelleher's finalstop of the evening was a club managed by Selectman Cogliano.Id. Cogliano, who observed Kelleher to be intoxicated, advised him not to drive because Saugus policeofficers were in the club's parking lot. Id. Apparently,Kelleher ignored Cogliano's advice. Id.
Shortly after 2:00 a.m. Putnam, who was at police headquarters,heard the radio report of Officers Matthew Vecchio ("Vecchio")and Kevin Cabral ("Cabral") that they had stopped a motor vehicleon Hammersmith Drive in Saugus. Pl.'s Statement of Facts, Ex. 13,Jan. 16, 2002 Police Report of David J. Putnam ("Putnam Report").Shortly thereafter, Putnam received a telephone call on hismobile telephone from Chief of Police Edward Felix ("Felix"), whoordered Putnam to call him at his home. Pl.'s Statement of Facts¶ 5(d). When Putnam called, Felix asked him, "Do you know whothey have stopped out there?" Id. Felix then informed Putnamthat Officers Vecchio and Cabral had stopped Selectman Kelleherwho "may be drunk." Id.
Felix told Putnam to instruct the officers to drive Kelleherhome "as a personal favor to him [Felix]." Id. Felix explainedto Putnam that "we'll get a lot of mileage out of this." Id.Felix further noted that he was trying to get a new contract andto get his son appointed to the police department. Id. Asinstructed, Putnam called officers Vecchio and Cabral and askedthem what was happening. Id. at ¶ 5(e). They informed him thatthey had stopped Kelleher because he was driving erratically,that he appeared to be intoxicated, and that there was an emptybeer can on the floor of his car. Id. Putnam then relayed Felix's "personal favor" request. Id. Putnam cautioned theofficers, however, that the proper course of action was "theirdecision and that he would back them up 100 percent." Id. at ¶5(f).
By this, Putnam meant that if the officers decided not toextend the "personal favor" to Felix and instead arrestedKelleher, Putnam "would back them up and wouldn't allow them tobe harassed." Id. Putnam then dispatched a sergeant to thescene with orders to reaffirm what he had told Vecchio and Cabralover the telephone. Id. Minutes later, Putnam received anothercall from Felix who demanded to know what was happening. Id. at¶ 5(g). Putnam informed Felix that he had relayed the "personalfavor" message but that he also told the officers that "if theydecided to arrest Kelleher, [he] would stand behind them." Id.
To Putnam's statement, Felix replied, "I am getting tired ofthis shit with you, you don't show me any respect." PutnamReport. Putnam replied by stating, "I am getting sick of hearingthat, I work as hard, if not harder than any Lieutenant you have.I certainly work harder than you ever did and I don't go aroundstarting trouble like you used to. When you were a Lieutenant youused to advise me to `bury the chief in grievances.' I don't doanything like that, I just mind my business and do my job. I amstanding behind my men, the way you taught me to." Id. A fewminutes later, Felix called Putnam again and ordered him to instruct Vecchio and Cabral to tell Kelleher to call him [Felix]at home. Id.
Officers Vecchio and Cabral drove Kelleher home withoutarresting him. Id. Later that morning, at police headquarters,Vecchio and Cabral informed Putnam that they were ready to arrestKelleher but felt they could not after speaking to Felix onKelleher's phone. Id. A few minutes later, Felix entered theoffice. Id. He immediately apologized to Vecchio, Cabral, andPutnam. Id. He further stated to Putnam, "You did the rightthing, you always back up your men." Id. Felix added that "wewill get some mileage out of this." Id.
Word of the Kelleher incident spread rapidly throughout Saugus.Pl.'s Statement of Facts ¶ 6. It was, in Vasapolli's words, "avery public event . . . discussed by anybody politically involvedin the town and people not politically involved in the town."Pl.'s Statement of Facts, Ex. 2, Dep. of John Vasapolli("Vasapolli Dep.") at 39. On January 16, 2002, on the advice ofhis attorney, Putnam filed a formal police report of the eventsdescribed above including his telephone conversations with Felix.Compl. ¶ 20.
Several of the police reports relating to the incident,including Putnam's, were "leaked" to the local media and printed.Pl.'s Statement of Facts ¶ 6. Later, a complaint about theKelleher incident was made to the State Ethics Commission, whichbegan an investigation. Compl. ¶ 21. Some, including Felix, believed Putnam was responsible for disclosing the incident tothe press and reporting it to the State Ethics Commission. Id.at ¶ 22. Putnam maintains that he did neither. Id. Vasapollialso believed that someone from within the Police Department hadreleased the information but had no opinion as to who that mightbe. Vasapolli Dep. at 41.
Within the next few days, Vasapolli and Town Manager Angelodiscussed the event and Putnam's involvement in it. Pl.'sStatement of Facts ¶ 7; Vasapolli Dep. at 18-20. Angelo was quiteupset that Putnam's report had been made public. Vasapolli Dep.at 22-23. Vasapolli too was upset about Putnam's report in thatit included "personal statements" about Chief Felix and becauseit was not filed until almost two weeks after the events which itdescribed. Id. at 28. Aside from its inclusion of those"personal statements," however, Vasapolli denies taking issuewith the fact that the report was written. Id.
In connection with the State Ethics Commission's investigationof the Kelleher incident, Putnam was questioned and latersummoned to testify before the Commission on December 16, 2002.Pl.'s Statement of Facts ¶ 11. Putnam informed Chief Felix bye-mail that he would be testifying because the date of histestimony conflicted with a scheduled officer training program.Putnam Dep. at 76. Putnam's testimony before the State EthicsCommission came one week after Vasapolli, who was then TownManager, interviewed him for the position of temporary police chief. Pl.'s Statement of Facts ¶ 11. Putnam testifiedtruthfully before the Ethics Commission about the Kelleherincident, including his exchanges with Chief Felix. Compl. ¶ 23.Four days after Putnam's testimony, Vasapolli informed him thathe had been passed over for the position.3 Id. ¶ 37
The Ethics Commission investigation of the Kelleher incidentresulted in a letter of reprimand being issued to former TownManager Angelo4 and the imposition of civil penalties of$2,000 each on Chief Felix and Selectman Kelleher for violationsof State Conflict of Interest laws. Pl.'s Statement of Facts ¶12. The Commission released its findings on June 25, 2003, oneweek before Bisignani, who by then was Town Manager, bypassedPutnam for the position of permanent police chief.5 Id.
3. Bypass of Putnam for Temporary Police Chief Position
a. Letter From Putnam's Attorney to Vasapolli
In October 2002, it became clear Chief Felix would be retiring.Pl.'s Statement of Facts ¶ 13. On October 11, 2002 Putnam's attorney wrote to Town Manager Vasapolli, expressing hisconcern that Putnam's involvement in the Kelleher incident wouldbe an impediment to his appointment as chief.6 Pl.'sStatement of Facts, Ex. 14, Letter from Attorney Lichten toVasapolli of 10/11/02 ("Lichten Letter") at 2. The letter notedthat Putnam was currently number one on the Civil Service list,having achieved a significantly higher score than the nextranking individual on the list. Id. at 1.
The letter went on to state that "there have been numerousrumors that Lt. McKay [sic] may be named acting chief, and thatthe town will then bypass Lt. Putnam." Id. The letter statedthat if Putnam was bypassed, "there could be significant legalramifications." Id. The specific concerns noted in the letterwere (1) that Putnam and Chief Felix had argued about whether ornot to provide special treatment to Selectmen Kelleher; (2) thatPutnam had been questioned by officials from the State EthicsCommission in relation to the Kelleher incident; and (3) thatPutnam wrote a police report which criticized town officials.Id. at 1-2. The letter also raised concerns about Town ManagerVasapolli's "significant involvement" in the Kelleher incident because of his position of Town Counsel at the time of theincident. Id. at 2.
Thus, the letter asserted, Putnam was concerned that "hisrefusal to go along with town officials in th[e Kelleher] matter,and his subsequent cooperation with the Ethics Commission" couldadversely affect his promotion. Id. Accordingly, the letterproposed that "in order to avoid the appearance of conflict, orto avoid legal challenges," the Town utilize an independent,outside panel to select a new police chief. Id.
Vasapolli responded to Putnam's counsel with a letter of hisown. Pl.'s Statement of Facts, Ex. 15, Letter from Vasapolli toLichten of 10/28/02 ("Vasapolli Letter"). Vasapolli's letternoted that the position of chief had not yet become vacant andthat he had not even seen the Civil Service list. Id. at 1. Theletter also stated that Vasapolli did not, in fact, havesignificant involvement in the Kelleher incident as "some, if notall of the individuals involved, had their own legal counsel."Id. Vasapolli indicated his resentment of the fact thatPutnam's counsel was "attempting to control the legal process forthe Town to fill a vacancy that does not even exist at thepresent time." Id. Vasapolli added that the process followed infilling any vacancy in the chief's position would be "fair and inaccordance with all Civil Service rules and regulations." Id.
b. Vasapolli's Interview of Putnam While serving as Town Manager, Angelo had numerousconversations with Putnam about the position of police chief.Putnam Dep. at 23-24. In 1998, Angelo informed Putnam, who hadscored first on the Civil Service examination, that he wasappointing Felix to the position of permanent chief but thatFelix would only hold the position for three years. Id. at 24.After that point, Angelo explained, Putnam would be appointed tothe position. Id. In exchange, Angelo requested that Putnam"not to file a bypass or make any problems." Id. Putnam did notoppose Felix's appointment. Id. at 25.
In December 2002, Chief Felix took leave from his position dueto a service connected injury and applied for disabilityretirement. Defs.' Statement of Facts ¶ 45. Because Felix had notfiled papers for final retirement, the position that becameavailable was only temporary. Id. In preparation for hisappointment of a temporary chief, Vasapolli sent letters to thetop three candidates on the Civil Service list encouraging themto schedule an interview for the position. Id. at ¶ 46. Thosecandidates were Putman, Lieutenant James MacKay ("MacKay"), andLieutenant Dominic DiMella ("DiMella"). Id. at ¶ 47.
Putnam was interviewed by Vasapolli for the position onDecember 9, 2002, one week before his testimony before the StateEthics Commission. Pl.'s Statement of Facts ¶ 14. The interviewwas dominated by questions about the Kelleher incident. Id.Vasapolli first asked Putnam about what problems he perceived in the department. Id. Following Putnam's response, Vasapollisaid, "Let's talk about the Kelleher incident." Id. Vasapolliasked a series of questions, all based on the Kelleher incident,trying, in Putnam's mind, to get him to say that "there wasnothing inappropriate that happened" on the night of theincident. Putnam Dep. at 95.
In reference to the on-scene officers' decision to driveKelleher home rather than arresting him, Vasapolli repeatedlyasked, "Don't officers have discretion to do this," and "Aren'tthey allowed to do that." Id. Putnam replied that the decisionwas an "inappropriate use of discretion because it was done basedon [Kelleher's] position as a selectman." Id. Vasapollicontinued to question Putnam about the Kelleher incident for thenext twenty minutes. Id. at 96.
Vasapolli next asked Putnam about his relationship with formerTown Manager Angelo. Id. at 98. Putnam responded that theirrelationship was "pretty good" but that Angelo felt that he,Putnam, did not know how to have a good time in life. Id.According to Putnam, Angelo's impression stemmed from Putnam'srefusal "to go to nightclubs and strip clubs with Angelo and someselectmen." Id. at 100. When Putnam explained to Vasapolli thathe declined such invitations because, "hav[ing] a wife anddaughter at home" he found them inappropriate, Vasapolli rolledhis eyes and said, "I have had to be their designated driver."Id.; Pl.'s Statement of Facts ¶ 14. Vasapolli asked the same questions to all three candidates forthe temporary chief position. Vaspolli Dep. at 67-68. Accordingto Vasapolli, he focused on the Kelleher incident because hethought it was a very significant issue in the town and becausehe was unhappy with the way Chief Felix handled it. Id. at 68.Vasapolli claims he found Putnam's responses to questions aboutthe Kelleher incident to be the best of the threecandidates.7 Id. at 70. Vasapolli viewed Putnam'seducation, leadership skills, and honesty as his strengths andhis lack of experience in the Executive Officer/Acting Chiefposition as a weakness.8 Id. at 73.
c. Vaspolli's Selection of Lieutenant MacKay for TemporaryChief Position
Ultimately, Vasapolli selected Lieutenant MacKay for theposition of temporary chief. Id. at 71. MacKay scored an 82 onhis Civil Service examination (six points lower than Putnam'sscore of 88) and had earned a two year Associate's degree fromNorth Shore Community College in 1975. Pl.'s Statement of Facts ¶1. The official reason Vasapolli provided for his choice of MacKay was MacKay's superior experience which included serving asExecutive Officer/Acting Chief since 1995. Vasapolli Dep. at71-72. Vasapolli also expressed his desire to maintain the statusquo, since MacKay had acted as chief on several occasions in thepast. Id. at 72. Putnam was notified on December 20, 2002 thathe had not been selected for the position, four days after histestimony before the State Ethics Commission. Defs.' Statement ofFacts ¶ 60; Compl. ¶ 37.
d. Vasapolli's Conversations with Officer Michael McGrath andSelectmen Cogliano and Kelleher
Five days before Vasapolli interviewed Putnam, he discussed thecandidates with Saugus Police Officer Michael McGrath("McGrath"). Pl's Statement of Facts ¶ 8. During theirconversation Vasapolli asked for McGrath's opinion on MacKay'sand DiMella's qualifications for the position of temporary chief.Pl.'s Statement of Facts, Ex. 9, Aff. of Michael McGrath("McGrath Aff.") ¶ 4. Although not asked about Putnam, McGrathresponded that he believed Putnam to be the best candidatebecause Putnam "has the respect of all the men." Id.(emphasis in original). McGrath then asked, "Why are you askingme for my opinion, everyone knows that you have already made yourmind up on MacKay?" Id. Vasapolli, without denying McGrath'sassertion, replied that he had "a problem" with Putnam. Id. at¶ 5. Vasapolli noted that he disapproved of the way Putnam handledthe Kelleher incident. Id. Vasapolli stated further, "The thingI don't like about Dave [Putnam] is that he wrote the reportabout Eddie Felix. Once you write down something like that itbecomes a document. If I have a problem like that, I go to a manface to face." Id. at ¶ 6. Vasapolli added that, "the Chiefshouldn't have stepped on Putnam's toes." Id. at ¶ 7.
Vasapolli denied speaking with any members of the Board ofSelectmen about the three candidates, including SelectmanCogliano. Vasapolli Dep. at 65. Cogliano, however, claims that heand Vasapolli did speak about the candidates at some point. Pl.'sStatement of Facts ¶ 15; Cogliano Dep. at 32-33. Additionally, itappears that Vasapolli may have also spoken to Selectman Kelleherabout the candidates. Pl.'s Statement of Facts ¶ 15. On January11, 2003, Kelleher approached Saugus Police Lieutenant ThomasCoogan and said, "I hope Dave Putnam doesn't think that I haveprevented him from getting the Chief's job. They asked me aboutit and I stated that they were all equally qualified. Please lethim know." Pl.'s Statement of Facts, Ex. 8, Aff. of Thomas A.Coogan ("Coogan Aff.") ¶ 3.
4. Bypass of Putnam for Permanent Police Chief Position
Andrew Bisignani ("Bisignani") was hired as Saugus Town Managerby the Board of Selectmen in January 2003. Pl.'s Statement ofFacts ¶ 17. Bisignani was aware of both Selectman Cogliano's heated relationship with the Saugus Police Departmentand the Kelleher incident. Bisignani Dep. at 16-17, 34-36.Bisignani was also aware of Putnam's participation in the StateEthics Commission's investigation of the Kelleher incident whichhe had discussed with people in Saugus. Id. at 19. After ChiefFelix officially retired, Bisignani began the process ofselecting a permanent replacement. Pl.'s Statement of Facts ¶ 17.
a. Letters From Putnam's Attorney to Bisignani
On May 15, 2003, prior to scheduling any interviews for theposition, Bisignani received a letter from Putnam's attorneyexpressing concern that Putnam would not have a fair interviewbecause of his involvement in both the ethics proceedings againstSelectman Kelleher and the liquor law charge brought againstSelectman Cogliano described above. Defs.' Statement of Facts,Ex. Q, Letter from Lichten to Bisignani of 5/15/03 ("LicthenLetter II") at 1. In the letter, Putnam's counsel requested thatan outside panel of police chiefs select the new permanent policechief. Id.
On May 23, 2003, Bisignani responded to Putnam's counsel with aletter stating that he, the Town Manager, is the appointingauthority and therefore he would be making the appointment forpolice chief. Defs.' Statement of Facts, Ex. R, Letter fromBisignani to Lichten of 5/23/03 ("Bisignani Letter") at 1. Bisignani, however, did act on Putnam's counsel'srecommendation to use experts to assist him in the interviewprocess because he agreed that a Town Manager who does not haveexperience with police duties should seek expert advice.Bisignani Dep. at 43-44. Accordingly, Bisignani asked two retiredpolice chiefs, James Russo ("Russo") of Revere, Massachusetts andJohn Toomey ("Toomey") of Swampscott, Massachusetts to assist himwith the interview process. Defs.' Statement of Facts ¶ 72.Specifically, Bisignani asked for their assistance in formulatingquestions and for their advice and opinions on candidates'responses. Id. The only candidate that both Russo and Toomeyknew personally was MacKay. Id. at ¶¶ 73, 75. Neither Russo norToomey knew the other two candidates Putnam and DiMella. Id.
On May 30, 2003, Bisignani informed Putnam, who remained firston the Civil Service list, that he was arranging interviews forthe appointment of permanent Police Chief and that his interviewwas scheduled for June 4, 2003. Id. at ¶ 63. Two days beforethat interview, on June 2, 2003, Bisignani received anotherletter from Putnam's counsel. Id. at ¶ 67. This letter statedthat, "unless our proposal for an independent selection panel isfollowed, there will undoubtedly be a new case arising out of thepermanent chief's selection. In addition, as you may or may notknow, David Putnam has retained a prominent civil rights attorneyto bring a lawsuit against the Town for violation of the First Amendment and public policy arising out of the samefact pattern." Id.
b. Bisignani's Interview of Putnam
Bisignani prepared for his interviews by reviewing the CivilService list, researching the individual candidates' backgrounds,discussing the interview process with Vasapolli (who had returnedto his role as Town Counsel), and reviewing the Town Charter.Bisignani Dep. at 10-11. Bisignani claims that when he researchedthe candidates' backgrounds, he received negative feedback aboutPutnam from "an assistant clerk in the Lynn District Court" andFred Riley, a former prosecutor. Id. at 21-22.
Bisignani's interview posed several hypothetical questions.Pl.'s Statement of Facts ¶ 20(a). Bisignani asked Putnamquestions about a situation in which a "businessman orpolitician" complained to Bisignani of harassment by the police.Id. At the time of the interview, the only "businessman orpolitician" who complained to Bisignani about police harassmentwas Selectman Cogliano. Bisignani Dep. at 36.
In response to Bisignani's hypothetical, Putnam responded thathe would tell Bisignani to "send him over to speak with me."Putnam Dep. at 147-48. Bisignani was visibly angered withPutnam's answer and "practically yelled," "Well, they didn't comesee you, they came to see me. Now what are you going to do?" Id. at 148. After responding that he would interview thecomplaining person and possibly conduct an investigation, Putnaminformed Bisignani that "frequently people make charges that thepolice are harassing them. That's because they have been caughtdoing something wrong and caught red handed so they can't disputethe evidence so they will impugn the officer's motives." Id. at149. Putnam suggested that Bisignani take Cogliano's complaint"with a grain of salt" until a full investigation was conducted.Id. Bisignani said nothing in response to Putnam's statementand simply "glared" at him. Id. at 149-150.
Bisignani next asked Putnam about his vision for the PoliceDepartment. Id. Putnam responded that he felt there was a needto "flatten" the department, that it had become "top heavy withbrass" and that he wanted to see the patrol force built up. Id.Putnam stated his belief that officers too often referred mattersto specialized units such as the domestic violence and juvenileunits, rather than dealing with the problems themselves. Id. at150-51. He suggested that division commanders review suchreferrals before they are made. Id. at 151. Later in theinterview when Bisignani asked Putnam if he wanted to eliminatespecialty positions, Putnam clarified his position by explainingthat he did not want to eliminate specialty positions but merelythought such positions were being overused. Id. at 152-53.
During the interview, Putnam was asked by Russo about ahypothetical situation in which he witnessed misconduct by an officer who was also a personal friend. Id. at 153-54. Putnamreplied that he would take the appropriate disciplinary action,including termination or prosecution if appropriate. Id. at153. Putnam was also asked by Toomey, "What if you had apolitician or businessman in the community who had been verysupportive of the police and made a lot of donations, had beenvery supportive of you during budget time, and his son ordaughter got a ticket or got arrested for drunk driving? Wouldyou help him?"9 Id. at 154.
When Putnam responded that he would not, Toomey asked, "Whynot? These people have been good to you." Id. at 154-55. Putnamresponded, "If I am chief of the Police Department, this policedepartment, there is going to be no interfering in prosecutionsfor any matter whether it's a criminal matter, civil matter,moving violation. That is the court's job to decide how thosethings should be resolved. We are not going to do it based onpolitics or friendships." Id. at 155. No one in the interviewverbally responded to Putnam's response, however, Toomey lookedat Russo and according to Putnam, "gave him a look like I was thebiggest fool in the world." Id.
After the interviews, Russo expressed his opinion that DiMellahad a bright future but lacked experience. Defs.' Statement of Facts ¶ 74. Russo also stated that Putnam wasacademically qualified but lacked administrative experience andthat he was concerned about Putnam's idea to eliminatespecialized units, although Putnam steadfastly maintains that hedid not express this idea. Id. Russo also expressed his opinionthat MacKay had strong administrative experience, especially onbudgetary issues. Id.
On July 2, 2003, Bisignani informed Putnam that he had not beenselected for the police chief position. Id. at 12. On the sameday, Bisignani appointed MacKay to the position. Id. In hisappointment letter to the State Human Resources Division ("HRD")explaining why he was passing over Putnam, the top-ranked personon the Civil Service list, Bisignani cited MacKay's personality,experience, and shared vision for the Police Department. Id.;Pl.'s Statement of Facts, Ex. 16, Letter from Bisignani toCommonwealth of Massachusetts, Human Resources Division of 7/2/03("Bisignani Letter to HRD") at 1-2. On July 18, 2003, the HRDapproved the bypass of Putnam based on the reasons in Bisignani'sletter. Defs.' Statement of Facts, Ex. X, Letter from HRD toDavid Putnam of 7/18/03.
In contrast to what he viewed as MacKay's common vision for thePolice Department, Bisignani stated that Putnam did not share hisvision, which involved expanding the use of specializedoperations. Bisignani Letter to HRD at 3. Putnam, Bisignaniasserted, "wants to `flatten' the Department by placing the most emphasis on police patrol and downgrading the special units."Id.
c. Conversations Between Bisignani and Vasapolli RegardingCandidates
Vasapolli denies discussing any of the candidates withBisignani. Vasapolli Dep. at 78-79. Specifically, Vasapollidenies saying anything to Bisignani about MacKay. Id. at 79-80.Bisignani stated in his deposition testimony, however, that heand Vasapolli did have a conversation about MacKay. BisignaniDep. at 15. According to Bisignani, he asked Vasapolli why he hadnot been the one to appoint a permanent chief. Id. at 14.Vasapolli responded that because Chief Felix had not yetofficially retired when he appointed MacKay, that position wasonly temporary. Id. at 14-15. Vasapolli then stated that MacKayhad been a "natural fit" for the position. Id. at 15. Incontrast to Vasapolli's endorsement of MacKay, he said nothing toBisignani about Putnam. Id. at 15-16.
5. MacKay's Actions as Permanent Chief
a. "Flattening Out" of Command Structure
After becoming Permanent Chief, MacKay eliminated a number oflieutenant positions, a change MacKay claims to have favored.Pl.'s Statement of Facts, Ex. 4, Dep. of Chief James J. MacKay("MacKay Dep.") at 51. MacKay admits that this change could bedescribed as "flattening out the command structure." Id. at51-52. Bisignani never complained to MacKay about the elimination of these positions. Id. at 53. Additionally, MacKay stated thatbecause of budget restrictions, he had reduced the number ofofficers in specialty units after becoming Permanent Chief. Id.at 57.
b. Selectman Cogliano Photograph Incident
After becoming Permanent Chief, MacKay refused to permitLieutenant DiMella, the head of the detective unit, to refer aninvestigation of Selectman Cogliano to the State EthicsCommission. Pl.'s Statement of Facts Ex. 6, Aff. of DomenicDiMella ("DiMella Aff.") ¶ 5. DiMella had been working with theEssex County District Attorney's Office to investigate violenceat Saugus nightclubs, including clubs owned or managed byCogliano. Id. at ¶¶ 3-4.
At a Board of Selectmen Meeting convened to address nightclubviolence and the passage of a bylaw forbidding nightclubs fromoperating after 2:00 a.m., Cogliano claimed that he was notaffiliated with "Caruso's Diplomat" ("Caruso's"), one of theclubs under investigation. Id. at ¶ 4. Cogliano, therefore,refused to recuse himself from the Board's rulings on nightclubissues. Id. DiMella developed evidence showing that Coglianowas in fact affiliated with Caruso's. Id. The Essex CountyDistrict Attorney instructed DiMella to refer Cogliano to theState Ethics Commission. Id. at ¶ 6. When DiMella informedMacKay of his plan to do so, MacKay ordered DiMella not to, claiming that he needed Cogliano's support for a tax override.Id. at ¶ 5.
Another Saugus police officer, Stephen McCarthy ("McCarthy")who was upset that Cogliano denied being affiliated withCaruso's, photographed Cogliano working there. Id. at ¶¶ 8-9.Following this incident, MacKay called DiMella into his officeand angrily questioned him about whether he had sent McCarthy tophotograph Cogliano. Id. at ¶ 9. MacKay said that Cogliano hadjust telephoned him and was "screaming" about the incident. Id.MacKay also mentioned that Town Manager Bisignani wanted to seehim [MacKay] regarding the incident. Id. MacKay told DiMellathat he wanted McCarthy punished. Id. at ¶ 10. When DiMellaexplained to MacKay that it was not against the law to photographa person in public, MacKay told DiMella to "have a talk" withMcCarthy. Id.
The following day, MacKay told DiMella that he had been calledto Town Manager Bisignani's office, where he met with Bisignaniand Town Counsel Vasapolli. Id. at ¶ 11. MacKay told DiMellathat they demanded to know why Cogliano was being investigatedand "grilled him" about the incident. Id. MacKay stated that hedid not reveal anything about the District Attorney'sinvestigation of Caruso's and that he informed them that McCarthyhad not done anything illegal. Id. Finally, MacKay stated,"They were not very happy with me at Town Hall." Id. McCarthy made an entry in the official police log aboutobserving Cogliano at Caruso's and taking photographs of himthere. Pl.'s Statement of Facts, Ex. 17, Saugus Police DepartmentLog Entry Oct. 22, 2003. DiMella informed MacKay about the logentry. DiMella Aff. at ¶ 12. The following day, DiMella examinedthe police log and observed that the entry concerning Coglianohad been deleted. Id. MacKay denies that he deleted the log.MacKay Dep. at 39-40. MacKay acknowledges that only he and oneother person in the department have the authority to delete a logentry. Id. at 41-42. While MacKay acknowledges that hediscussed the Cogliano incident with Bisignani and Vasapolli, heasserted the attorney-client privilege when asked to discuss theconversation. Id. at 44-47.
c. No Confidence Vote
In February or March of 2004, the Saugus Police SuperiorOfficers Union voted that they had no confidence in MacKay aspolice chief. Putnam Dep. at 178. MacKay sent a letter to theBoard of Selectmen reviewing the reasons for the vote. MacKayDep. at 90. In the letter MacKay stated that a reporter for thenewspaper which had printed an article about the vote, told himthat Putnam was the source of confidential police informationrelated to the vote. Id. At his deposition, MacKay was shown aletter addressed to him from that reporter denying that she hadever told MacKay that she had spoken with Putnam or that Putnam was her source. Id. at 91. The letter further denied thatPutnam was, in fact, her source. Id. On relevancy grounds,MacKay refused to answer questions at his deposition as towhether the reporter had actually told him that Putnam was hersource. Id. at 91-99.
A. Standard of Review
Summary judgment is warranted if, after reviewing the facts inthe light most favorable to the non-moving party, no genuineissues of material fact remain and that the moving party isentitled to judgment as matter of law. Anderson,477 U.S. at 248; Fed.R.Civ.P. 56(c). A "genuine" issue of fact is one thata reasonable jury, on the record before the court, could resolvein favor of either party. Anderson, 477 U.S. at 248. A fact ismaterial when it "might affect the outcome of the suit under thegoverning law." Hayes v. Douglas Dynamics, Inc., 8 F.3d 88,90 (1st Cir. 1993) (citing Anderson, 477 U.S. at 248).
In making its determination, the court must view the evidencein the light most favorable to the non-moving party and draw allreasonable inferences in its favor. Anderson, 477 U.S. at 255.The movant has the initial burden of production, which it canmeet either by offering evidence to disprove an element of theplaintiff's case or by demonstrating an "absence of evidence tosupport the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has met itsburden, the non-moving party must "go beyond the pleadings, andby [its] own affidavits, or by the depositions, answers tointerrogatories, and admissions on file, designate specific factsshowing there is a material issue for trial." Id. at 323(internal quotation marks omitted).
Defendants Vasapolli and Bisignani have moved for summaryjudgment of Putnam's 42 U.S.C. § 1983 claim that they violatedPutnam's right of freedom of speech as protected by the First andFourteenth Amendments on the following grounds: (1) Putnam hasfailed to establish that he engaged in First Amendment protectedactivity; (2) Putnam has failed to establish a causal linkbetween First Amendment protected activity and adverse employmentaction; and (3) Vasapolli and Bisignani are entitled to qualifiedimmunity. Defs.' Mem. at 3, 6, 14.
Defendant Town of Saugus ("Town") has also moved for summaryjudgment of Putnam's First Amendment section 1983 claim on theground that Putnam has failed to adduce evidence of anunconstitutional custom or policy or that either Vasapolli orBisignani committed an underlying constitutional violation. Def.Town of Saugus' Mem. in Supp. of Mot. for Summ. J. ("Town'sMem.") at 13. Additionally, the Town moves for summary judgmentof Putnam's retaliation claim under Mass. Gen. Laws ch.149, § 185 on the ground that he has produced no evidence ofretaliation. Id. at 4. B. Putnam's Section 1983 Claims Against Vasapolli andBisignani
Section 1983 provides in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . .42 U.S.C. § 1983.
In his complaint, Putnam claims that both his testimony beforethe State Ethics Commission and his written report in relation tothe Kelleher incident constituted speech protected by the Firstand Fourteenth Amendments to the United States Constitution.Compl. ¶ 49. Putnam maintains that Vasapolli and Bisignani passedhim over for the positions of temporary and permanent chiefrespectively because of that speech. Id. at ¶ 50. BecauseVasapolli and Bisignani acted under color of state law in theirconduct, Putnam argues, their actions infringed on his right tofreedom of speech protected by the First and FourteenthAmendments, in violation of section 1983. Id. ¶¶ 51-52.
1. First Amendment Protected Activity
The First Amendment to the United States Constitution protectscitizens' freedom of speech. U.S. Const. amend. I. A publicemployee does not relinquish her First Amendment rights tocomment on matters of public concern simply by virtue of her government employment. Connick v. Myers, 461 U.S. 138, 140(1983) (citing Pickering v. Board of Education, 391 U.S. 563(1968). Absolute First Amendment protection, however, is notaccorded to all public employees' speech irrespective of itscontent. Tang v. State of R.I. Dep't of Elderly Affairs,163 F.3d 7, 11 (1st Cir. 1998). Otherwise, anything said by a publicemployee on the job could "plant the seeds of a constitutionalcase." Id. (quoting Connick, 461 U.S. at 149). Instead,courts employ a three part test to determine whether anactionable First Amendment claim exists. Id. at 12; Mihos v.Swift, 358 F.3d 91, 102 (1st. Cir. 2004).
First, a court must determine whether the employee made hercomments "as a citizen upon matters of public concern." Tang,163 F.3d at 12 (quotation omitted). If the speech involvedaddresses only issues of personal interest rather than publicconcern, a First Amendment claim cannot survive absent "the mostunusual circumstances" because "a federal court is not theappropriate forum in which to review the wisdom of a personneldecision taken by a public agency allegedly in reaction to theemployee's behavior." Id. (quoting Connick, 461 U.S. at 147).
Second, courts must weigh the strength of the employee's andthe public's First Amendment interests against the government'sinterest in the efficient administration of the workplace.Mullin v. Town of Fairhaven, 284 F.3d 31, 37-38 (1st Cir.2002); Tang, 163 F.3d at 12 (citing Pickering,391 U.S. at 568). Third, if the employee's and the public's interests outweigh alegitimate government interest in restricting the employee'sspeech, the employee must show that the protected speech was asubstantial or motivating factor in the adverse employmentaction. Mihos, 358 F.3d at 102 (citations omitted); Tang,163 F.3d at 12 (citing O'Connor v. Steeves, 994 F.2d 905, 913(1st Cir. 1993)).
a. Public Concern Requirement
Whether an employee's speech addresses a matter of publicconcern as opposed to her private interest is determined by "thecontent, form, and context" of the given statements "as revealedby the whole record." Connick, 461 U.S. at 147-48. Speechtouches upon a matter of public concern if it can be "fairlyconsidered as relating to any matter of political, social orother concern to the community." Id. at 146. According toPutnam, his speech at issue includes (1) his protests in hisconversation with Chief Felix regarding Felix's request thatSelectman Kelleher receive preferential treatment; (2) Putnam'sreport on the Kelleher incident; (3) Putnam's discussions withand testimony before the State Ethics Commission; and (4) asconcerns Bisignani's hiring decision, Putnam's order thatofficers charge Selectman Cogliano with a criminal liquor lawviolation. Pl.'s Mem. at 12. According to Putnam, the allegation that a police departmentimproperly accorded favorable treatment to political figures isclearly a matter of public concern. Id. at 13. The State EthicsCommission's investigation of the Kelleher incident, Putnamargues, is conclusive proof that the public was concerned aboutwhat Putnam disclosed. Id. Additionally, Putnam observes,Vasapolli himself testified that the Kelleher incident andPutnam's report on it were the talk of the town. Id.; VasapolliDep. at 17, 39.
Regarding Putnam's testimony before the State EthicsCommission, Vasapolli and Bisignani argue that Putnam was notengaged in constitutionally protected speech because there hadalready been extensive media reports on the Kelleher incident atthe time of Putnam's testimony. Defs.' Mem. at 4. Therefore,Putnam "was not bringing to light any information that had notalready been made public." Id. (citing Coyne v. City ofSomerville, 770 F. Supp. 740, 752 (D. Mass. 1991) (Cohen, M.J.)(noting that the plaintiff could not be considered a citizengoing public for the first time when there had already been widescale press coverage of a matter)).
There is no legal requirement, however, that an individual'sspeech bring to light new, previously non-public information inorder for it address a matter of public concern. Connick,461 U.S. at 147-48; Tang, 163 F.3d at 12. In Coyne v. City ofSomerville, the court examined prior media coverage as onefactor in the overall context in which the speech was made to helpdetermine whether the speaker's interest was merely personal.Coyne, 770 F. Supp. at 752. The court did not announce a rulethat testimony regarding matters which have received extensivepress coverage fall outside the realm of public concern. Seeid.
It can hardly be argued that media coverage of the Kelleherincident transforms Putnam's testimony before a public bodyinvestigating misconduct by public officials into a matter onlyof private interest. See Connick, 461 U.S. at 147-48(emphasis added). If such were the case then virtually alltestimony given before a court or other public body would falloutside the realm of protected First Amendment speech so long asthe events surrounding the trial or hearing were widelypublicized. Surely, this cannot be so. See Konits v. ValleyStream Cent. High Sch., 394 F.3d 121, 126 (2d Cir. 2005) (citingMandell v. County of Suffolk, 316 F.3d 368, 383 (2d Cir.2003)) (noting that speech is of particular public concern whenit involves actual testimony in court or in administrativeproceedings); Scrima v. Gay, 322 F. Supp. 2d 49, 51 (D. Mass.2004) (Zobel, J.) (holding that a public employee's depositiontestimony involves a matter of public concern if "arguably astatement about misconduct or corruption in [c]ity government"and regardless of whether testimony is given in employee'sofficial capacity) (citation omitted).
Moreover, the law is quite clear that speech like Putnam's report and testimony relating to the possible corruption ofpublic officials addresses a matter of public concern.Rivera-Jimenez v. Pierluisi, 362 F.3d 87, 94 (1st Cir. 2004)(holding that law enforcement agent's speech which raised thepossibility of corruption in a public agency is protected underthe First Amendment); Guilloty Perez v. Pierluisi,339 F.3d 43, 53 (1st Cir. 2003) (holding that law enforcement officer'sFirst Amendment interest is entitled to even greater weight whereofficer's reports exposed possible government corruption);O'Connor, 994 F.2d at 915 (quoting Connick, 461 U.S. at 145n. 7) (holding that an employee's speech which concerns thealleged abuse of public office occupies "the highest rung of thehierarchy of First Amendment values"); Wagner v. City ofHolyoke, 241 F. Supp. 2d 78, 91 (D. Mass. 2003) (Ponsor, J.)(holding that statements comprising evidence of possiblecorruption within a police department "are precisely the type ofcommunications that demand strong First Amendment protection").
Vasapolli and Bisignani argue, however, that to the extentPutnam's First Amendment claim is derived from his police reportof the Kelleher incident, such speech is not protected in thecontext of public employment. Defs.' Mem. at 4. In support oftheir argument they cite Tang v. State of Rhode Island, Dep'tof Elderly Affairs which ruled that an employee's personalcomplaints about her working conditions did not constitute amatter of public concern. Tang, 163 F.3d at 12-13. In Tang, the working conditions complained of includedinter alia being placed on administrative leave and beingrelocated within the building. Id. at 12 n. 5. There is a FirstAmendment distinction, however, between complaints about thesetypes of working conditions, which are not protected andcomplaints about fellow employees' official misconduct, which areprotected. Guilloty Perez, 339 F.3d at 52 (holding that lawenforcement agent's internal reports of misconduct by fellowofficers involved matters of public concern and contrasting suchspeech with employee's complaints in Tang) (citation omitted);Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 11-12 & n. 10 (1stCir. 2003) (holding that a public employee's internal memorandaraising concerns about public corruption are protected FirstAmendment speech because they addressed a matter of publicconcern); O'Connor, 994 F.2d at 916 (citing Givhan v.Western Line Consol. Sch. Dist. 439 U.S. 410, 415-16 (1979) forthe proposition that First Amendment protection is not lost wherean employee discloses official misconduct directly to employerrather than to the public); see also Taylor v. Keith,338 F.3d 639, 643-46 (6th Cir. 2003) (holding that police reportsraising allegations of misconduct by other officers touched upona matter of public concern even if drafted within the scope ofemployment and not disclosed to the media). Therefore, Vasapolliand Bisignani's argument that Putnam's police report cannot bethe statement of a citizen addressing a matter of public concernis unavailing. The same conclusion, however, does not extend to other "speech"which Putnam claims to be protected by the First Amendment.Specifically, Putnam's "order" that officers charge SelectmanCogliano with a liquor law violation is not protected FirstAmendment speech because it was issued in the normal course ofhis duties and fails to address a matter of public concern suchas official misconduct. While information relating to Cogliano'sliquor law violation could be considered information of "generalpublic interest," that fact alone does not make it of "publicconcern" for First Amendment purposes. Morris v. Crow,142 F.3d 1379, 1381-82 (11th Cir. 1998) (citing Connick,461 U.S. at 148 n. 8).
In Morris v. Crow, the Eleventh Circuit Court of Appealsheld that an accident investigator's report on the trafficaccident of a fellow Sheriff's Department employee did notinvolve a matter of public concern even though the reportaddressed negligent conduct that jeopardized public safety. Id.at 1381. Although the report reflected information of "generalpublic interest" it was not intended to address a matter of"public concern" for First Amendment purposes as it wasmandatorily written in the normal course of the investigator'sduties. Id. at 1382 (emphasis added).
The court contrasted such speech with a voluntarily writtenpolice report bringing to light the official misconduct of fellowofficers. Id. (citations omitted) (emphasis added). Such speech, the court ruled, is not in the normal course of anofficer's duties because its purpose is to raise issues of publicconcern, namely official misconduct. Id. (emphasis added);Scrima, 322. F. Supp. 2d at 51 (citing Morris,143 F.3d at 1382 for the proposition that there is a First Amendmentdistinction between speech related to the normal course of anemployee's duties and speech which reports specific wrongs andabuses within city government). The report in Morris was withinthe normal course of the investigator's duties because there wasno evidence indicating that his purpose included the exposure ofofficial misconduct. Morris, 143 F.3d at 1382.
Unlike Putnam's report on the Kelleher incident which hedrafted because of the public's concern over the incident, SeePutnam Dep. at 34; Pl.'s Mem. at 19, and which specificallyaddressed instances of official misconduct, there is noindication that Putnam intended to address a matter of publicconcern by ordering Cogliano to be charged with a liquor lawviolation. Id. at 130, 149. Rather, Putnam ordered Cogliano tobe charged because Cogliano had broken the law. Id. Such anorder is presumably within the normal course of a policeofficer's duties and Putnam makes no claim that it was issued forany reason other than because it was part of his job to do so.See id. Cogliano's position as a selectman does not convertPutnam's order into a matter of public concern as the chargeagainst him was not tied to any official misconduct attendant to his position as Selectman. Rather, the charge stemmed fromCogliano's capacity as a nightclub operator. Id. at 129-30.Thus, Putnam's order cannot be considered protected FirstAmendment speech because it did not address a matter of publicconcern. Connick, 461 U.S. at 147.
Similarly, Vasapolli and Bisignani argue that Putnam draftedhis report of the Kelleher incident not to address a matter ofpublic concern but rather to advance his personal interestsincluding becoming Chief of Police. Defs.' Mem. at 5; see alsoMullin, 284 F.3d at 38-39 (observing that motive is relevant indetermining whether an issue raised by a government employee isof public concern). They support this argument by citing Putnam'sinclusion in the report of his heated exchange with Felix inwhich Putnam stated, "I don't go around starting trouble like youused to." Defs.' Mem. at 5. This, they argue, combined with thetiming of the report, demonstrates that Putnam filed the reportnot to speak to a matter of public concern but to address apersonal grievance with Felix. Id. Vasapolli and Bisignani alsocite Putnam's actions following his writing of the report andobserve that "this suit was preordained" and became "inevitablewhen Putnam's counsel interfered with the appointment process bysending threatening letters to both Vasapolli and Bisignani priorto interviews ever being posted." Id. These letters, they arguewere designed to place Putnam in a better position than othercandidates. Id. at 6. While Putnam's filing of the Kelleher report and subsequentactions may permit the inference that he was motivated by his ownpersonal interest, an alternative inference is also available.Based on the record evidence, a jury could permissibly find thatPutnam wrote the report because he wanted to bring to light theissue of official misconduct and because he wanted to clarify hisrole and the roles of Officers Vecchio and Cabral in the Kelleherincident.10 Putnam Dep. at 34-35; Pl.'s Mem. at 19.
Additionally, a jury is entitled to believe Putnam that theletters sent by his attorney were motivated solely by his desireto receive fair consideration for the positions. Putnam Dep. at87. Here, at the summary judgment phase, the Court must view theevidence in the light most favorable to Putnam and draw allreasonable inferences in his favor. Anderson, 477 U.S. at 255.Therefore, Vasapolli's and Bisignani's argument that Putnam was not publicly motivated in his speech does not entitle them tosummary judgment because Putnam's motivation is a genuine issueof material fact. Id.; Fed.R.Civ.P. 56(c).
2. Causal Link Between Protected Activity and AdverseEmployment Action
As mentioned above, the third requirement of a valid FirstAmendment claim in the public employment context is that theemployee show that her protected activity was a substantial ormotivating factor in the adverse employment action. Mihos,358 F.3d at 102 (citations omitted).11 Once a plaintiff hasmade this showing, the burden shifts to the employer to show by apreponderance of the evidence that it would have reached the samedecision even in the absence of the protected speech.Vazquez-Valentin v. Santiago-Diaz, 385 F.3d 23, 30 (1st Cir.2004); O'Connor, 994 F.2d at 912.12 Vasapolli andBisignani argue that Putnam has failed to meet this requirement. Defs.' Mem. at 6.
a. Awareness of Putnam's Ethics Commission Testimony
First, Vasapolli argues, a causal connection between Putnam'sactivity and his being passed over for the position of temporarychief is lacking because Vasapolli was not even aware that Putnamhad testified before the State Ethics Commission and certainlynot the substance of that testimony. Id. at 7. Furthermore, heargues, Putnam did not testify until after his interview. Id.Vasapolli's alleged lack of awareness, however, is refuted byevidence in the record before the Court. The October 11, 2002letter from Putnam's attorney to Vasapolli stated that "Lt.Putnam has been questioned by the Ethics Commission" about theKelleher incident. Licthen Letter at 2. The letter also notedPutnam's "subsequent cooperation with the Ethics Commission"following the Kelleher incident. Id.
According to Vasapolli, this letter is "too vague" to provide abasis for retaliation. Defs.' Mem. at 7 n. 3. Although thisletter was sent prior to Putnam's actual testimony, it placedVasapolli on notice that Putnam had been approached by the Ethics Commission and that he was questioned regarding theKelleher incident. Therefore, Vasapolli's own self-servingstatement that he did not know about Putnam's testimony isinsufficient to establish his lack of knowledge as matter of law.See Rosenberg v. City of Everett, 328 F.3d 12, 17 (1st Cir.2003). Furthermore, the fact that Putnam's testimony before theEthics Commission came after Vasapolli's interview of Putnam isalso insufficient for a grant of summary judgment on the issue ofVasapolli's knowledge because the decision to bypass Putnam forthe position of temporary chief was not made until after hetestified.
The inference that Vasapolli knew of Putnam's testimony issupported by the fact that Vasapolli acknowledged that the eventsrelated to the Kelleher incident were widely discussed throughoutSaugus. Vasapolli Dep. at 39. In Vasapolli's words, the eventssurrounding the Kelleher incident were "very public" and were"discussed by anybody politically involved in the town and peoplenot politically involved in the town." Id. Specifically,Vasapolli acknowledged that the Ethics Commission's investigationwas widely discussed throughout Saugus. Id. at 52-53.
Further, Vasapolli admits he discussed the events related tothe Kelleher incident with former Town Manager Angelo, a personalacquaintance and participant in the Ethics Commission'sinvestigation who himself testified. Id. at 18-20. While thisdiscussion came prior to Putnam's testimony, it supports the inference that Vasapolli was apprised of the events related tothe Kelleher incident, including the Ethics Commission'sinvestigation and Putnam's testimony.13
Bisignani argues that he too was unaware that Putnam testifiedbefore the Ethics Commission. Defs.' Mem. at 8. Bisignani claimsthat he could not have been aware of Putnam's testimony beforethe Ethics Commission because he did not become Town Manageruntil after Putnam testified. Defs.' Mem. at 8. Bisignani,however, was Town Manager on June 25, 2003, the day on which theEthics Commission released its findings on the Kelleher incident.Pl.'s Statement of Facts ¶ 12. On that date, the Commissionannounced that it had issued a letter of reprimand to former TownManager Angelo and had imposed civil penalties of $2,000 each onFormer Chief Felix and Selectman Kelleher. Id. These findingswere released the week before Bisignani passed over Putnam forthe position of permanent chief. Id.
More importantly, Bisignani specifically acknowledged in hisdeposition testimony that he was aware of Putnam's involvement"on the prosecution side" of Ethics Commission proceedings.Bisignani Dep. at 20. This was in direct response to a questionabout whether Bisignani knew that Putnam had been involved in testifying before the Commission at the time Bisignani wasconsidering candidates for the permanent chief position. Id.Finally, the May 15, 2003 letter from Putnam's counsel toBisignani listed as a reason for Putnam's concern, Putnam'sinvolvement in the Ethics Commission's proceedings againstSelectman Kelleher. Defs.' Statement of Facts ¶ 64. Bisignani'sletter in response acknowledged his awareness that Putnam hadtestified before the Commission. Bisignani Letter at 1.Accordingly, a reasonable inference is available that Bisignaniwas aware of Putnam's Ethics Commission testimony and his lack ofknowledge has not been established as matter of law.
b. Retaliation Against Protected Activity
Vasapolli and Bisignani next argue that even if they were awareof Putnam's protected activity, he cannot establish a connectionbetween that activity and the bypasses. Defs.' Mem. at 8.
(1) Town Manager Vasapolli
Vasapolli argues that there is no record evidence to suggestthat Putnam's report of the Kelleher incident or his EthicsCommission testimony were substantial or motivating factors inthe decision to pass over him for the position of temporarychief. Id. Putnam, however, has cited sufficient evidence tosupport an inference to the contrary.
Vasapolli acknowledges that he was upset about Putnam's report of the Kelleher incident in that it included "personalstatements" about Chief Felix and because it was not filed untilalmost two weeks after the events which it described. VasapolliDep. at 28. Additionally, during Vasapolli's interview of Putnam,the interview was dominated by questions about the Kelleherincident. Pl.'s Statement of Facts ¶ 20(a). Vasapolli claims thathe agreed with Putnam's responses regarding his handling of theincident. Vasapolli Dep. at 70. Yet this claim is contradicted byVasapolli's conduct during the interview. That is, while Putnamexplained his belief that it was inappropriate for the on-sceneofficers to drive Kelleher home rather than arrest him, Vasapollirepeatedly countered, "Don't officers have discretion to dothis?" and "Aren't they allowed to do that?" Putnam Dep. at 95.
Additionally, according to Officer McGrath, five days beforePutnam's interview with Vasapolli, Vasapolli approached McGrathand asked his opinion on MacKay's and DiMella's qualificationsfor the temporary chief position. McGrath Aff. ¶ 4. When McGrathasked, "Why are you asking me for my opinion, everyone knows thatyou have already made your mind up on MacKay?" Vasapolli repliedthat he had a "problem" with Putnam and that "he did not like theway . . . Putnam handled the Kelleher situation." Id. at ¶¶4-5. Vasapolli said that he was upset about Putnam's report onthe Kelleher incident claiming, "The thing I don't like aboutDave [Putnam] is that he wrote the report about Eddie Felix. Once you write down something like thatit becomes a document. If I have a problem like that, I go to aman face to face." Id. at ¶ 6.
In direct response to McGrath's question about his choice forthe position of temporary chief, Vasapolli stated that he had aproblem with Putnam namely, that he had written a report on theKelleher incident. The timing and substance of this responsepermits the inference that Putnam's report on the Kelleherincident was a "substantial or motivating factor" in the decisionto bypass him for the temporary chief position. Mihos,358 F.3d at 102.
Vasapolli's counsel argues that the sole inference that can bedrawn from the record evidence is that Vasapolli was upset withPutnam's report only to the extent that it included personalstatements about Chief Felix including that Felix had been a"troublemaker" in the past who used to "stir up grievances." Tr.of Mot. Hr'g of Jan. 27, 2005 ("Tr.") [Doc. No. 31] at 9-11. Forthis argument, Vasapolli's counsel relies on Vasapolli's owndeposition testimony in which Vasapolli acknowledges as much.Id. at 9-10; Vasapolli Dep. at 57-58. Such portions of Putnam'sreport, counsel argues, are insufficient to support any claim inthis case. Tr. at 9-10. As counsel further points out, Vasapollitestified that Putnam, in his opinion, was the only person whoacted appropriately with regard to the Kelleher incident. Id.at 9; Vasapolli Dep. at 59. The problem with this argument is that it takes Vasapolli'sself-serving statements as true and fails to address theaffidavit of Officer McGrath which provides direct evidence thatVasapolli claimed to have "a problem" with Putnam because he didnot like the way Putnam "handled the Kelleher situation,"specifically, that he "wrote the report about Eddie Felix."McGrath Aff. ¶¶ 5-6. Nothing in Vasapolli's subsequent statementsto McGrath limited his dissatisfaction to the specific portionsof the report referring to Felix as a troublemaker who used tostir up grievances. See id. at ¶¶ 6-7.
Accordingly, a jury could permissibly find that Vasapolli's"problem" with Putnam included not only the report's personalstatements cited by his counsel but also the report's exposure ofFelix's official misconduct attendant to the Kelleher incident.As discussed above, such portions of the report are sufficient tosupport an actionable First Amendment claim. Rivera-Jimenez,362 F.3d at 94; Guilloty Perez, 339 F.3d at 53; O'Connor,994 F.2d at 915 (citation omitted); Wagner, 241 F. Supp. 2d at 91.
Vasapolli next argues that the same result (bypassing Putnam)would have been obtained regardless of Putnam's engagement inFirst Amendment protected activity. Defs.' Mem. at 10. In supportof this claim, Vasapolli argues first that Putnam's achievementof the highest Civil Service score does not entitle him to theposition of chief. Defs.' Mem. at 10-11 (citing Burns v.Sullivan, 619 F.2d 99, 104 (1st Cir. 1980)). Next, Vasapolli argues, there existed sufficient reasons forselecting MacKay rather than Putnam. Id. at 11. These reasonsinclude MacKay's prior experience as Executive Officer/ActingChief and Vasapolli's desire to maintain the status quo as MacKaywas already Acting Chief at the time of his appointment. Id.
While a jury may believe Vasapolli's stated rationale, it doesnot eliminate the other possible inference that Vasapolli'sdecision was in retaliation for Putnam's protected speech. To beentitled to summary judgment, Vasapolli must demonstrate that noreasonable jury could find that he has not shown by apreponderance of the evidence that he would have bypassed Putnamregardless of Putnam's speech. Anderson, 477 U.S. at 252;Vazquez-Valentin, 385 F.3d at 30; O'Connor, 994 F.2d at 912.Because of the record evidence permitting the inference ofVasapolli's retaliatory motive, there is a genuine issue ofmaterial fact in this regard and summary judgment isinappropriate for the section 1983 claim against Vasapolli.Anderson, 447 U.S. at 254; Fed.R. Civ. Pro. 56.
(2) Town Manager Bisignani
Bisignani similarly points to the absence of sufficientevidence to establish that Putnam's protected speech was a"substantial or motivating factor" in his bypass of Putnam forthe position of permanent chief. Mihos, 358 F.3d at 102. Inresponse, Putnam first notes that just as his interview with Vasapolli was dominated by questions about the Kelleher incident,"his interview with Bisignani was dominated by questions about`political influence' and drunk driving arrests, all of which, ajury could conclude, were based on the Kelleher incident." Pl.'sMem. at 8.
Next, Putnam points out, at the time of his interview, he hadrecently been involved in a criminal charge being brought againstSelectman Cogliano who later complained to Bisignani that Sauguspolice were harassing him. Id. at 9. During the interview,Bisignani posed a series of questions apparently based on thesecomplaints. Id. Putnam argues that a jury could infer thatBisignani spent so much of the interview asking these questionsout of concern that Putnam would cause "problems" for"influential businessmen and political figures, such as Cogliano,Kelleher, Felix, and Angelo." Id. This inference, Putnamargues, is supported by "the temper of the interview" duringwhich Bisignani "practically yelled" at Putnam and the retiredchiefs assisting him "made faces" at Putnam's responses. Id.
Additionally, Putnam observes that Bisignani, in his depositiontestimony and in his letter to HRD explaining the bypass, placedgreat weight on what he perceived as a difference between hisvision for the police department and Putnam's. Id. Bisignaniclaimed that Putnam wanted to eliminate special units whereasBisignani believed such units should be expanded. BisignaniLetter to HRD at 3. Putnam claims that Bisignani's letter distorted his view which was that he wanted to closelysupervise the method by which cases were referred to specialunits. Pl.'s Mem. at 9-10. This distortion, Putnam argues, couldsupport a jury finding that the "vision" issue was used byBisignani as a pretext for improper discrimination. Id. at 10.
Further, Putnam notes, Bisignani relied on Putnam's desire to"flatten" the department's structure by eliminating supervisorypositions as a reason for his preference of MacKay's vision forthe department. Id. As MacKay stated during his deposition,however, he eliminated supervisory positions after becomingChief, a position he claims to have favored. MacKay Dep. at 51.This evidence, Putnam claims, strengthens the inference thatBisignani's statement about Putnam's conflicting vision wassimply a pretext for Bisignani's improper motivation. Pl.'s Mem.at 10.
Finally, Putnam cites MacKay's actions after becoming chief tosupport the inference that Bisignani wanted a police chief whowould "support and shield" influential politicians andbusinessmen. Id. Specifically, Putnam points to (1) MacKay's"protection" of Selectman Cogliano by ordering Lieutenant DiMellanot to report him to the State Ethics Commission; (2) MacKay'sremoval of a police log entry concerning Cogliano;14 and(3) the fact that MacKay became upset when Bisignani andVasapolli chided him for allegedly harassing Cogliano. Id. at 10-11. A jurycould also infer, Putnam claims, that MacKay lacked thequalifications that Bisignani claimed he had based on the noconfidence vote taken against MacKay eight months after hisappointment to the permanent chief position. Id. at 11.
The trouble with Putnam's arguments, however, is that eachsuffers from the same fatal flaw. Even assuming that theinferences Putnam suggests could be drawn, he has failed toconnect Bisignani's hiring decision to any of his First Amendmentprotected activity. Short of evidence that Putnam's protectedactivity was a "substantial or motivating" factor in the decisionto bypass him, Putnam cannot maintain a First Amendment claimagainst Bisignani. Mihos, 358 F.3d at 102; Tang,163 F.3d at 12; O'Connor, 994 F.2d at 913.
Putnam urges the Court to use restraint in granting summaryjudgment where as here, the factual question at issue isdiscriminatory animus. Pl.'s Mem. at 15 (citing Hodgens v.General Dynamics Corp., 144 F.3d 151, 167 (1st Cir. 1998)). Insuch cases, Putnam argues, where the nonmoving party has producedsufficient evidence to call into question the defendant'smotivation, summary judgment should be denied. Id. (citingHodgens, 144 F.3d at 167).
There is no evidence, however, and Putnam makes no claim, thathis protected speech was a motivating factor in Bisignani's decision to pass him over for the chief position.15 Thus,even if Bisignani's decision was based on an "impropermotivation," there is nothing beyond speculation permitting theinference that Bisignani's improper motivation was related toPutnam's protected speech. Such speculation is insufficient todefeat a motion for summary judgment. Benoit v. TechnicalManufacturing Corp., 331 F.3d 166, 173 (1st Cir. 2003), quotingFeliciano de la Cruz v. El Conquistador Resort & CountryClub, 218 F.3d 1, 5 (1st Cir. 2000) (quotations omitted).Accordingly, summary judgment is appropriate for Putnam's FirstAmendment section 1983 claim against Bisignani because he hasfailed to meet an essential element of a actionable FirstAmendment claim, namely a causal connection between his protectedspeech and the adverse employment action taken against him.Tang, 163 F.3d at 12 (citing O'Connor, 994 F.2d at 913).
3. Qualified Immunity
Finally, Vasapolli argues that he is entitled to summaryjudgment because he is protected by the doctrine of qualified immunity. Defs.' Mem. at 14. As Vasapolli points out, qualifiedimmunity shields public officials from claims predicated on theperformance of discretionary functions, insofar as that conductdoes not violate clearly established statutory or constitutionalrights of which a reasonable person would have known. Harlow v.Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). Inother words, a defendant is entitled to the defense if heractions could reasonably have been thought to be consistent withthe rights they are alleged to have violated. Anderson v.Creighton, 483 U.S. 635, 638 (1987).
Qualified immunity is an affirmative defense that must bepleaded by a defendant official. Gomez v. Toledo,446 U.S. 635, 640 (1980). The Supreme Court has established that thedefense has both an objective and subjective element. Harlow,457 U.S. at 815. The objective element presumes a defendant'sknowledge of and respect for "basic, unquestioned constitutionalrights." Id. (quoting Wood v. Strickland, 420 U.S. 308, 322(1975)). The subjective element requires the defendant to havehad impermissible intentions. Id. Thus, qualified immunity isdefeated if either (1) "an official knew or reasonably shouldhave known that the action" taken within her sphere of officialresponsibility violated the constitutional rights of a plaintiff,or (2) if she took the action with the malicious intention tocause a deprivation of constitutional rights. Id. (citation andinternal quotation marks omitted). Therefore, in assessing the merits of the defense of qualifiedimmunity courts consider: (1) whether the facts alleged make outa constitutional violation; (2) whether that law was clearlyestablished; and (3) whether a similarly situated reasonableofficial would have understood that her conduct violated clearlyestablished law. Savard v. Rhode Island, 338 F.3d 23, 27 (1stCir. 2003). The central purpose of qualified immunity is toprotect officials acting in good faith "from undue interferencewith their duties and from potentially disabling threats ofliability." Elder v. Holloway, 510 U.S. 510, 514 (1994)(quoting Harlow, 457 U.S. at 806). Vasapolli argues that thispurpose is especially important here given the "intimidatingcorrespondence from Putnam's counsel." Defs.' Mem. at 15.
Vasapolli argues that he is shielded by qualified immunitybecause he did not violate clearly established law. Id. (citingFabiano v. Hopkins, 352 F.3d 447, 452 (1st Cir. 2003)). It isclear as matter of law he argues, that a reasonable Town Managerwould not have known that "appointing the most experiencedcandidate to the chief's position" violated clearly establishedlaw. Id. It cannot be credibly argued, Vasapolli claims, that areasonable Town Manager would have acted any differently than hedid in making his decision or that a reasonable Town Managerwould have known that bypassing Putnam violated hisconstitutional rights. Id.
According to Putnam, this argument "puts the cart before the horse." Pl.'s Mem. at 18. That is, the law is clearlyestablished that a government official cannot retaliate againstan employee because of her protected speech. Id. (citingRankin v. McPherson, 483 U.S. 378, 385 (1987)). The key issueat this juncture, Putnam notes, is Vasapolli's motivation forpassing over him for the position. Id. (emphasis added). Thatmotivation, Putnam observes, is a core issue in this case. Id.If, as Putnam suggests, the evidence is sufficient for a jury toinfer that Putnam's constitutionally protected speech was asubstantial factor in Vasapolli's decision, then such conductwould violate clearly established law. Id.
As a result, Putnam acknowledges, the qualified immunitydefense, at least at the summary judgment phase, "rises and fallson the determination of whether the evidence is sufficient for ajury to infer that a retaliatory motivation was a substantialfactor in the decision to bypass him." Id. Because, asdiscussed above, the record evidence is sufficient to permit theinference that Vasapolli retaliated against Putnam for exercisingof his "basic" and "unquestioned" First Amendment rights, thedoctrine of qualified immunity does not warrant summary judgment.Harlow, 457 U.S. at 815 (citation omitted).
C. Putnam's Section 1983 Claim Against The Town of Saugus
In his complaint, Putnam also asserts a First Amendment section1983 claim against the Town of Saugus because he was passed over for the positions of temporary and permanent chief,he claims, in retaliation for his report on the Kelleher incidentand Ethics Commission testimony. Compl. ¶ 52.
Municipal liability under section 1983 cannot be imposedpursuant to a mere respondeat superior theory. Monell v.Department of Social Servs., 436 U.S. 658, 691 (1978). That is,a municipality cannot be held liable under section 1983 solelybecause it employs the wrongdoer. Id. at 694. Instead,municipal liability is imposed when the injury complained ofresults from an officially sanctioned policy or custom.Manarite v. City of Springfield, 957 F.2d 953, 958 (1st Cir.1992); Foley v. City of Lowell, 948 F.2d 10, 14 (1st Cir.1991). Requiring a "policy" ensures that a municipality is heldliable only for those deprivations resulting from the decisionsof its duly constituted legislative body or those whose acts mayfairly be said to be those of the municipality. Board of theCounty Cmm'rs v. Brown, 520 U.S. 397, 403-404 (1997) (citingMonell, 436 U.S. at 694).
The Town argues that it is entitled to summary judgment onPutnam's section 1983 claim because he has "failed to establishany policy of retaliatory bypass." Town's Mem. at 14. Instead,the Town notes, Putnam's bypasses were single incidents which,without more, are insufficient for the imposition of municipalliability. Id. at 15 (citing Bordanaro v. McLeod,871 F.2d 1151, 1161 n. 8 (1st Cir. 1989) (citing City of St. Louis v.Praprotnik, 485 U.S. 112 (1988) (plurality opinion) and Oklahoma City v.Tuttle, 471 U.S. 808, 823-24 (1985) (plurality opinion))).
According to the Town, a municipal "policy" in this case wouldrequire "widespread or flagrant practices of bypassing employeesfor retaliatory reasons." Id. This understanding, however,misinterprets the definition of the term "policy" as it isexplained by the Supreme Court. As Putnam correctly observes,under appropriate circumstances, municipal liability can inherefrom the single act of a municipal official. Pl.'s Mem. at 16-17(citing Brown, 520 U.S. at 403-04); Pembaur v. City ofCincinnati, 475 U.S. 469, 481 (1986).
As the Supreme Court held in Pembaur v. City of Cincinnati,the term "policy" does not necessarily require a widespreadpractice. Id. at 481 n. 9. Rather, the Court observed, the termincludes "a specific decision or set of decisions designed tocarry out such a chosen course of action." Id. (quotingWebster's Third New International Dictionary 1754 (1981))(emphasis added). This more nuanced definition of "policy" wasnecessary because the fact that "a government frequently choosesa course of action tailored to a particular situation and notintended to control decisions in later situations." Id. at 481.Thus, if an official's particular decision is made pursuant toher decision-making authority, "it surely represents an act ofofficial government `policy'" as that term is properlyunderstood. Id. According to a plurality of the Pembaur court, an official'sdiscretion to make a decision is not enough for an imposition ofmunicipal liability because such liability "attaches only wherethe decisionmaker possesses final authority to establishmunicipal policy with respect to the action ordered." Id. at481-82 (plurality opinion) (emphasis added). Thus, an officialwho is authorized to establish final municipal policy may giverise to municipal liability based on a specific exercise of thatauthority. Id. at 481-83 (plurality opinion).
It is therefore plain, the Pembaur majority held, "thatmunicipal liability may be imposed for a single decision bymunicipal policymakers under appropriate circumstances." Id. at480 (emphasis added). A different interpretation of the word"policy," the Court noted, would be "contrary to the fundamentalpurpose of § 1983." Id. at 481.
In arguing for a contrary interpretation, the Town reliesheavily on the recent First Circuit decision in Fabiano v.Hopkins. 352 F.3d at 452. In Fabiano, Gerald Fabiano("Fabiano") a former Assistant Corporation Counsel for the Cityof Boston ("City") was fired by Merita A. Hopkins ("Hopkins"),the City's head Corporation Counsel. Id. at 450-451. Followinghis termination, Fabiano filed suit against the City pursuant tosection 1983 alleging inter alia that his First Amendmentrights had been violated. Id. at 451.16
In addressing Fabiano's municipal liability claim, the courtnoted that Hopkins was the relevant policymaker for purposes ofsection 1983 in that "the decision to terminate Fabiano'semployment ultimately resided with her." Id. at 452. The courtnoted further that Fabiano pointed to no relevant city "policy"beyond the fact that Hopkins decided to fire him. Id. Accordingto the First Circuit, "[a]bsent evidence of an unconstitutionalmunicipal policy, a single incident of misconduct cannot providethe basis for municipal liability under § 1983." Id. (citingTuttle, 471 U.S. at 823-24 (plurality opinion)).
The sole support cited by the First Circuit for thisproposition is the Supreme Court's decision in Oklahoma City v.Tuttle. Id. (citing Tuttle, 471 U.S. at 823-24 (pluralityopinion)). In Tuttle, Rose Marie Tuttle ("Tuttle"), the widowof a man shot and killed by an Oklahoma City police officer,brought a section 1983 claim against the municipality arguingthat the officer had used excessive force. Tuttle,471 U.S. at 811-13. In rejecting Tuttle's municipal liability claim, aplurality of the Court observed that "a single incident ofunconstitutional activity is not sufficient to impose [municipal]liability under Monell, unless proof of the incident includesproof that it was caused by an existing unconstitutional municipal policy, whichpolicy can be attributed to a municipal policy maker." Id. at823-24 (plurality opinion).
It is this portion of the Tuttle opinion upon which theFabiano court relied for the proposition that even thoughHopkins had the ultimate authority to fire Fabiano, a single actis insufficient for the imposition of municipal liability as itcould not constitute a policy. Fabiano, 352 F.3d at 452 (citingTuttle, 471 U.S. at 823-24 (plurality opinion)). Thisinterpretation of Tuttle, however, was explicitly rejected bythe Supreme Court's decision in Pembaur. 475 U.S. at 482 n. 11(plurality opinion).
In Pembaur, a plurality relied on Tuttle to note that"[t]he fact that a particular official — even a policymakingofficial-has discretion in the exercise of particular functionsdoes not, without more, give rise to municipal liability based onan exercise of that discretion." Id. at 481-82 (citingTuttle, 471 U.S. at 822-24 (plurality opinion)). Before holdingthat such discretion must be exercised pursuant to an official'sfinal authority related to the matter within her discretion, theplurality observed: Respondent argues that the holding in Tuttle is far broader than this. It relies on the statement near the end of Justice Rehnquist's plurality opinion that "[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker." 471 U.S. at 823-24, 105 S.Ct., at 2436. Respondent contends that a policy cannot be said to be "existing" unless similar action has been taken in the past. This reading of the Tuttle plurality is strained, and places far too much weight on a single word. The plaintiff in Tuttle alleged that a police officer's use of excessive force deprived her decedent of life without due process of law. The plaintiff proved only a single instance of unconstitutional action by a nonpolicymaking employee of the city. She argued that the city had "caused" the constitutional deprivation by adopting a "policy" of inadequate training. The trial judge instructed the jury that a single, unusually excessive use of force may warrant an inference that it was attributable to grossly inadequate training, and that the municipality could be held liable on this basis. We reversed the judgment against the city. Although there was no opinion for the Court on this question, both the plurality and the opinion concurring in the judgment found plaintiff's submission inadequate because she failed to establish that the unconstitutional act was taken pursuant to a municipal policy rather than simply resulting from such a policy in a "but for" sense. Id., at 822-24, 105 S.Ct., at 2435-2436 (plurality opinion), 829-830, 105 S.Ct., at 2439 (Brennan, J., concurring in part and concurring in judgment). That conclusion is entirely consistent with our holding today that the policy which ordered or authorized an unconstitutional act can be established by a single decision by proper municipal policymakers.Pembaur, 475 U.S. at 482 n. 11 (first emphasis in original,second emphasis added). Thus, the plurality specifically rejectedFabiano's interpretation of Tuttle. Id. The Pembaurmajority preempted that interpretation in a broader sense byunambiguously holding that a "policy" for purposes of municipalliability may stem from a single incident of misconduct. Id. at 481.
The Supreme Court revisited this issue in Board of the CountyComm'rs v. Brown. 520 U.S. at 404. Elaborating on its decisionin Pembaur, the Supreme Court noted that it is not enough foran imposition of municipal liability to simply identify conductproperly attributable to the municipality. Id. Rather, it mustbe shown that "through its deliberate conduct, the municipalitywas the `moving force' behind the injury alleged. That is, aplaintiff must show that the municipal action was taken with therequisite degree of culpability and must demonstrate a directcausal link between the municipal action and the deprivation offederal rights." Id.
Proof that a municipality's "authorized decisionmaker hasintentionally deprived a plaintiff of a federally protectedright" the Court held, "necessarily establishes that themunicipality acted culpably. Similarly, the conclusion that theaction taken by the . . . authorized decisionmaker itselfviolates federal law will also determine that the municipalaction was the moving force behind the injury of which theplaintiff complains." Id. at 405. Thus, Brown confirmed thenotion that an official's single act can provide the basis formunicipal liability so long as that act violated federal law.Id.
In accordance with these precedents, the First Circuit Court of Appeals has recognized the proposition that an official'ssingle act can serve as a policy and thus establish a basis formunicipal liability. Kelley v. Laforce, 288 F.3d 1, 9 (1stCir. 2002) (holding that a "policy" for purposes of municipalliability may be established by an official's single decision)(citation omitted); Dickinson v. Chitwood, No. 98-1446,1998 U.S. App. LEXIS 32569, *2-*3 (1st Cir. Dec. 17, 1998) (citingPembaur, 475 U.S. at 481 for the proposition that a singledecision by a final decision-maker may give rise to municipalliability) (unpublished opinion);17 Roma Constr. Co. v.aRusso, 96 F.3d 566, 576 (1st Cir. 1996) (holding that an unconstitutional policy maybe inferred from an official's single decision or act) (citationomitted); Harrington v. Almy, 977 F.2d 37, 45 (1st Cir. 1992)(citing Pembaur, 475 U.S. at 481-84 to hold that a singledecision can be a policy for purposes of municipal liability));Bowen v. City of Manchester, 966 F.2d 13, 18 (1st Cir. 1992)(same); Small v. City of Belfast, 796 F.2d 544, 553 (1st Cir.1986) (holding that city manager's single unconstitutional actionwas sufficient for the imposition of municipal liability); butsee Bordanaro, 871 F.2d at 1156-57 (holding that evidence ofa single event alone cannot establish a municipal policy)(citations omitted).
The First Circuit in Fabiano after citing Tuttle made noreference to either of the Supreme Court's subsequent decisionsin Pembaur or Brown. Nor did the court address any of thecases cited above from within the First Circuit. The court simplynoted that because Fabiano had not "assert[ed] that the City hasmade a well-settled practice of punishing attorneys who havetaken legal action against it or otherwise exercised their FirstAmendment rights," the single decision to fire Fabiano was aninsufficient basis for municipal liability. Fabiano,352 F.3d at 452. The Fabiano court implicitly reasoned that a single decision is an insufficient predicate for municipal liabilitybecause it cannot constitute a "policy." Id.
As the foregoing discussion demonstrates, this interpretationof the term "policy" fails to account for the precedent of theSupreme Court and the First Circuit establishing that a "policy"may be comprised of nothing more than a single act.18Fabiano notwithstanding, this Court cannot "simply disregardits sworn oath" to comply with the binding opinions of theSupreme Court. Andrews-Clarke v. Travelers Ins. Co.,984 F. Supp. 49, 60 (D. Mass. 1997). Accordingly, this Court is bound toapply the rule of decision of the Supreme Court that underappropriate circumstances, a government official's single act ofmisconduct may give rise to municipal liability. Brown,520 U.S. at 404-05; Pembaur, 475 U.S. at 480; see also Kelley,288 F.3d at 9.
Thus, under the rubric of Pembaur and its progeny, Putnammust establish that Vasapolli and Bisignani were "authorizeddecisionmakers" in making their respective appointments oftemporary and permanent chief. Pembaur, 475 U.S. at 481. This inquiry requires proof that Vasapolli and Bisignani had theauthority to establish final policy regarding such appointments.Pembaur, 475 U.S. at 481-83 (plurality opinion); see alsoMcMillian v. Monroe County, 520 U.S. 781, 784-85 (1997)(noting that a majority of the Supreme Court has adopted the"final policymaking authority" requirement in municipal liabilitycases) (citation omitted); Belfast, 796 F.2d at 552-53.Further, Putnam must show that either Vasapolli or Bisignani inexercising such authority intentionally deprived him of afederally protected right. Brown, 520 U.S. at 404. If suchshowings are made, a single act by either Vasapolli or Bisignanimay provide the basis for municipal liability.
As Putnam points out, the Town has gone to great lengths toshow that the Town Manager, not the Board of Selectmen, is theauthorized and final decision maker concerning the appointment ofpolice chief. Pl.'s Mem. at 17. The defendants note in theirStatement of Facts that the Town Manager "was the appointingauthority for the position of police chief." Pl.'s Mem. at 17(citing Defs.' Statement of Facts ¶¶ 6, 8). Additionally, in hisdeposition testimony, Selectman Cogliano in discussing theappointment of police chief noted, "[A]s a selectman . . . wehire a town manager to do his job. We appoint him to do it.That's his duty. He has to make those decisions." Cogliano Dep.at 32. Further, according to Selectman Ciampa, regarding the appointment of police chief, "We have a very strong town managerform of government . . . I let the managers manage and I don'tinterfere what [sic] their job is. . . . I keep my nose out ofwhat their job is basically." Defs.' Statement of Facts, Ex. Y,Dep. of Christie Ciampa ("Ciampa Dep.") at 6. Bisignani himselfacknowledges that the Town Manager has exclusive authorityconcerning the appointment of police chief. Bisignani Letter at1.
If any question remained as to whether the Town Manager is theauthorized and final authority respecting the appointment ofPolice Chief, Putnam argues, it is settled by the Saugus TownCharter which vests the Town Manager, not the Board of Selectmen,with the exclusive legal authority to make that appointment.Defs.' Statement of Facts, Ex. C, Saugus Town Charter ("Charter")at 2. The Town Manager's appointment authority, however, must beexercised based on "merit and fitness alone." Id. Based on theabove evidence, Putnam has shown sufficiently that Vasapolli andBisignani were authorized decision-makers in their appointmentsof temporary and permanent police chief under local law.Pembaur, 475 U.S. at 481.
Whether Putnam has established that Vasapolli and Bisignani had"final policymaking authority" regarding the appointments,however, is not as obvious. The existence of final policymakingauthority is not matter of fact. Rather, it is matter of state and local law to be determined by the trial judge before a caseis submitted to a jury. Jett v. Dallas Indep. Sch. Dist.,491 U.S. 701, 737 (1989) (citations omitted).19 In City ofSt. Louis v. Praprotnik, a plurality of the Supreme Courtattempted to provide a readily applicable framework to aid inascertaining the location of final policymaking authority.485 U.S. at 124-31 (plurality opinion).
According to the Praprotnik plurality, for an official tohave final policymaking authority, their discretion cannot be"constrained by policies not of that official's making." Id. at127 (plurality opinion). When an official is so constrained,"those policies, rather than the subordinate's departures fromthem, are the act of the municipality." Id. (pluralityopinion). Similarly, the plurality observed, where a"subordinate's decision is subject to review by themunicipality's authorized policymakers, they have retained theauthority to measure the official's conduct for conformance withtheir policies." Id. (plurality opinion).20 Theplurality further acknowledged that "refinements of theseprinciples may be suggested in the future. . . ." Id. (plurality opinion).
Specifically at issue in Praprotnik was whether a municipalarchitect's supervisors in the Community Development Agency hadfinal authority to make certain personnel decisions. Id. at114, 128 (plurality opinion). The plurality ruled that thesupervisors lacked final authority for two reasons. Id.(plurality opinion). First, it noted that the supervisors'decision-making authority was not final as the municipality'smayor and aldermen were also authorized to make personneldecisions. Id. at 126, 128 (plurality opinion). Second, theplurality observed, the municipality's Civil Service Commissionwas empowered to override improper personnel decisions. Id.(plurality opinion).
According to the municipality's charter, all appointments mustbe made "on the sole basis of merit and fitness." Id. at 129(plurality opinion). As the plurality pointed out, the CivilService Commission had the final authority to interpret andenforce this provision. Id. at 128-29 (plurality opinion).Because this authority had not been delegated to the supervisors,they could not have final policymaking authority with respect tothe personnel decisions at issue. Id. (plurality opinion).
Praprotnik was decided by only eight Justices. Id. at 113(plurality opinion). The four-Justice plurality's framework fordetermining the existence of "final policymaking authority" was expressly rejected by an equal number of Justices. In hisconcurring opinion in which Justices Marshall and Blackmunjoined, Justice Brennan declared the plurality's framework"unduly narrow and unrealistic, and one that ultimately wouldpermit municipalities to insulate themselves from liability forthe acts of all but a small minority of actual policymakers."Id. at 132 (Brennan, J., concurring).21
Under the plurality's finality framework, Justice Brennanobserved, so long as an official's decision is subject to someform of review, however limited, that official's decisions cannotbe final. Id. at 144-45 (Brennan, J., concurring). JusticeBrennan noted further that under the plurality's framework, "amunicipal charter's precatory admonition against . . . employmentpractice[s] not based on merit and fitness effectively insulatesthe municipality from any liability based on acts inconsistentwith that policy." Id. at 145 n. 7 (Brennan, J., concurring).
In responding to Justice Brennan's latter concern, theplurality denied that its ruling implied such a result. Id. at130-31 (plurality opinion). Rather, the plurality reasoned, itsdecision merely "respect[s] the decisions, embodied in state and local law, that allocate policymaking authority among particularindividuals and bodies." Id. at 131 (plurality opinion). Anofficial's refusal to carry out such policies, the pluralityobserved "could obviously help to show that a municipality'sactual policies were different from the ones that had beenannounced." Id. (plurality opinion).
The following term, the Supreme Court decided Jett v. DallasIndep. Sch. Dist. where it incorporated principles outlined inPraprotnik into its majority opinion. 491 U.S. at 738. Jettwas the first time a majority of the Court adopted the "finalpolicymaking authority" requirement for municipal liabilityclaims. Id. at 737. At issue in Jett was whether a highschool principal and school superintendent had final policymakingauthority regarding the termination and reassignment of a schoolemployee. Id. at 705-07, 736-37.
In its discussion of this issue, the Court noted that inPraprotnik, a plurality attempted to clarify the tools a courtshould employ in determining where policymaking authority lies.Id. at 737. The Court cited Praprotnik to note that such aninquiry is a question of state law which includes positive law,custom, and usage. Id. (citation omitted). In observing that atrial judge must determine this issue, however, the Court did notcite Praprotnik or any other case. Id.
Citing its decision in Monell v. Department of Social Servs., the Court noted that once the policymaking officialsare identified, a jury must determine if their actions caused thedeprivation at issue. Id. (citations omitted). The Court itselfdeclined to resolve these issues. Id. at 738. Instead, itremanded the case for a determination of which officials hadfinal policymaking authority as to employee transfers "in lightof the principles enunciated by the plurality opinion inPraprotnik and outlined above." Id.
As this Court reads Jett, there are at least two arguableinterpretations of the effect it gives to Praprotnik's two-stepframework for determining final policymaking authority. Oneinterpretation is that Jett converts only those portions ofPraprotnik it specifically referenced into its majorityopinion. Those portions do not include Praprotnik's two-stepfinality framework. If that framework is embodied only by aplurality of an equally divided court, it would not be binding onthe lower courts. See, e.g., Horton v. California,496 U.S. 128, 136 (1990); United States v. Berry, 636 F.2d 1075, 1078(1st Cir. 1981). A second interpretation of Jett is that itconverts Praprotnik in its entirety into a majority holding.Because of the issue's significance to this case, bothinterpretations are discussed below.
1. Strict Interpretation
The Supreme Court's decision in Jett could be interpreted to convert only those portions of Praprotnik specifically citedinto a majority opinion. Under this interpretation, it could beargued that Praprotnik's framework for determining whether anofficial has final decision-making authority was not incorporatedby Jett. See Terminate Control Corp., v. Horowitz,28 F.3d 1335, 1349 (2d Cir. 1994) (failing to apply Praprotnik'sfinality framework and noting its pronouncement that finalauthority is determined by state law is the portion ofPraprotnik that Jett expressly incorporated); Steven S.Cushman, Municipal Liability Under § 1983: Toward a NewDefinition of Municipal Policymaker, 34 B.C.L. Rev. 693, 694 n.6 (1993) (cautioning that the ability of Jett to convertPraprotnik into a majority opinion should not be overstated asJett did not require the Court to determine the issue of finalpolicymaking authority); see also Erwin Chemerinsky, FederalJurisdiction, § 8.5.2 at 497 (4th ed. 2003) (observing that evenafter the Supreme Court's pronouncement in Praprotnik regardingfinal decision-making authority, which municipal officialspossess such authority remains unsettled and lower courtscontinue to struggle with this issue).
The Jett Court specifically referenced Praprotnik for thefollowing propositions: (1) Whether an official has finalpolicymaking authority is matter of state law, and (2) Relevantlaw includes state and local positive law as well as custom andusage having the force of law. Jett, 491 U.S. at 737 (citations omitted). Curiously, the Court did not cite Praprotnik when itheld that trial judges must determine whether an official hasfinal authority. Id. More precisely, the Court failed to citeto Praprotnik's two-step framework for determining whether anofficial has final authority. See id. At the end of itsopinion the Court remanded the case for a determination of finalpolicymaking authority "in light of the principles enunciated bythe plurality opinion in Praprotnik and outlined above." Id.at 738.
Arguably, one could take the position that use of the language:"the principles enunciated . . . in Praprotnik and outlinedabove" limits the Court's incorporation of Praprotnik only tothose portions that it "outlined above." See id. (emphasisadded). That is, it is not enough that a principle was enunciatedin Praprotnik if it was not also outlined by Jett. Seeid. As Praprotnik's finality framework was not outlined bythe Jett opinion, one could argue that it has not beenincorporated by a majority of the Supreme Court. See id.
This interpretation finds some support in the Supreme Court'sdecision in McMillian v. Monroe County. 520 U.S. at 784-85,791. In that case the parties agreed that an Alabama sheriff hadfinal policymaking authority in the area of law enforcement butdisagreed about whether Alabama sheriffs were final policymakersfor the county or the state. Id. at 785. The Court concluded that Alabama sheriffs were state policymakers. Id. at793.
In reaching its conclusion, the Court noted that Alabamasheriffs "are given complete authority to enforce the statecriminal law in their counties." Id. at 790. The Court alsonoted, however, that under Alabama law, a sheriff's exercise ofhis or her law enforcement duties is subject to the directcontrol of the governor and state attorney general. Id. at 791.The Court gave no indication that such control in any wayhampered a sheriff's "complete authority" in that area. Seeid. Yet, under Praprotnik's two-step framework, such controlwould appear to preempt the conclusion that a sheriff holds finalpolicymaking authority. Praprotnik, 485 U.S. at 127 (pluralityopinion); McMillian, 520 U.S. at 802 (Ginsburg, J., dissenting)(citation omitted).
Thus, McMillian lends some support to the proposition thatJett did not make Praprotnik's finality framework controllingin determining the existence of final policymaking authority.This support should not be overstated as the Court was notrequired to determine the issue of whether sheriffs have finalauthority since the parties there agreed that they do.McMillian, 520 U.S. at 783.22 Nonetheless, the Court'sfailure to note that such an understanding contravenes the plurality's holding in Praprotnikcombined with the Court's characterization of the sheriff'sauthority as "complete" casts some doubt on the precedentialforce of Praprotnik's finality framework. See McMillian,520 U.S. at 783, 791.
This interpretation of Jett is also consistent with the caselaw of the First Circuit. This Court was unable to discover asingle decision by the First Circuit that has either adopted orapplied Praprotnik's two-step finality framework. Moreover, theFirst Circuit has reached results directly at odds with thatframework.
For example, in Silva v. Worden, 130 F.3d 26, 31 (1st Cir.1997), although the First Circuit acknowledged Jett'sincorporation of Praprotnik's proposition that finalpolicymaking authority is matter of state law, the court did notapply Praprotnik's finality framework. 130 F.3d at 31(citations omitted). Instead, the court reached a resultcompletely at odds with that framework. See id. At issue inSilva was whether the Superintendent of the Department ofPublic Works had final policymaking authority regardingautomobile parking in a city yard. Id. at 29, 31. According tothe court, the superintendent lacked such authority. Id. at 31.Rather, the court concluded, the public works commissioner hadfinal policymaking authority in that area. Id.
The First Circuit reached this result despite themunicipality's code which provided that "the commissioner ofpublic works under the direction of the mayor and city councilshall . . . have the charge of the city yard. . . ." Id.(citation omitted) (alteration in original) (emphasis added).Such a result is at odds with Praprotnik's framework whichwould have foreclosed a finding of the commissioner's finalpolicymaking authority because his decisions are both reviewableby the mayor and city counsel and subject to their policies.Praprotnik, 485 U.S. at 127 (plurality opinion).
Furthermore, if Praprotnik's method for determining finalpolicymaking authority was binding precedent, it would followthat courts uniformly must engage in the two-part inquiry as towhether an official's decisions are constrained by policies notof his or her making and whether those decisions are subject toreview by a separate municipal policymaker. Id. Within theDistrict of Massachusetts, however, there is no such uniformity.See Beal v. Blache, No. 02-cv-12447-RGS, 2005 U.S. Dist.LEXIS 2151, *11 (D. Mass. Feb. 14, 2005) (Stearns, J.) (failingto apply Praprotnik's framework and holding that municipality'sfailure to dispute that police chief was a "high-level" official"with policymaking authority in police matters" sufficient toestablish police chief's final policymaking authority in such matters) (citations omitted) (unpublished opinion) (emphasisadded); McCarthy v. Szostkiewicz, 188 F. Supp. 2d 64, 71 (D.Mass. 2002) (Ponsor, J.) (failing to cite Praprotnik andholding that a mayor's admission in his deposition testimony thathe was "the sole appointing authority for appointments andpromotions" to the city's police department sufficient toestablish mayor's final policymaking authority respecting policepromotions for purposes of summary judgment); Ford v. SuffolkCounty, 154 F. Supp. 2d 131, 146 (D. Mass. 2001) (Gertner, J.)(failing to cite Praprotnik and holding that parties' agreementthat sheriff has final policymaking authority sufficient forimposition of municipal liability); Powell v. City ofPittsfield, 143 F. Supp. 2d 94, 125 (D. Mass. 2001) (failing toapply Praprotnik and holding that a mayor's admission that hewas the ultimate decision-maker regarding police appointmentssufficient to establish final policymaking authority in thatarea); Martineau v. Kurland, 36 F. Supp. 2d 39, 43 (D. Mass.1999) (Keeton, J.) (applying the Praprotnik finality frameworkand holding that city hospital director lacked final policymakingauthority because constrained by city's formal policy againstdiscrimination or retribution); Armstrong v. Lamy,938 F. Supp. 1018, 1035-36 (D. Mass. 1996) (Keeton, J.) rev'd on othergrounds by Educadores Puertorriquenos en Accion v.Hernandez, 367 F.3d 61 (1st Cir. 2004) (recognizing Jett'sincorporation of specific portions of Proprotnik but holdingthat school committee members have final authority to establish school policy despite fact that state lawsubjected such authority to "standards established by the boardof education.") (citation omitted); Gonsalves v. City of NewBedford, 939 F. Supp. 915, 917 (D. Mass. 1996) (Wolf, J.)(applying Praprotnik's finality framework).23 Seealso Smith v. City of Boston, 413 Mass. 607, 612, 613-14(1992) (Nolan, J.) (applying Praprotnik's finality frameworkand concluding that city's personnel director lacked finalpolicymaking authority because he was constrained by policiesenunciated by the mayor including the requirement that actions betaken on the basis of "merit and fitness").
2. Less Strict Interpretation
It could also be reasonably argued that the majority in Jettincorporated Praprotnik it its entirety including its finalityframework. See Auriemma v. Rice, 957 F.2d 397, 400-01 (7thCir. 1992) (applying Praprotnik's finality framework andholding that Jett incorporated Praprotnik in its entirety); Crowley v.Prince George's County Police Dep't, 890 F.2d 683, 687 (4thCir. 1989) (applying Praprotnik's finality framework); TheSupreme Court, 1988 Term: Leading Case: III. Federal Statutes andRegulations, 103 Harv. L. Rev. 320, 324 (1989) (observing thatJett adopted Praprotnik's approach for determining whether anofficial has final policymaking authority).
While the Court in Jett did not explicitly referencePraprotnik's two-step finality framework, it did observe thatin Praprotnik, "we attempted a clarification of tools a federalcourt should employ in determining where policymaking authoritylies for purposes of § 1983." Jett, 491 U.S. at 737. Theplurality's framework for determining an official's finalpolicymaking authority was certainly among those "tools." Laterin its opinion, the Court remanded the case to determine "wherefinal policymaking authority . . . lay in light of the principlesenunciated by the plurality opinion in Praprotnik and outlinedabove." Id. at 738.
It does not automatically follow as a matter of interpretationthat Jett's final sentence limits its incorporation ofPraprotnik to its portions specifically "outlined above."Rather, use of the word "and" in that sentence could reasonablybe understood to indicate that the court must make itsdetermination in light of those principles enunciated by the Praprotnik plurality as well as those other principlesoutlined above unrelated to Praprotnik. See id. (emphasisadded).
Further, even if the language "and outlined above" incorporatesonly those portions of Praprotnik that were explicitly cited byJett, one could interpret the mention of Praprotnik's "tools"for determining policymaking authority to include Praprotnik'sfinality framework. See id. at 737. One could therefore arguethat the finality framework was one of Praprotnik's principles"outlined" in Jett. See id. at 737, 738. While this mightstretch the definition of the word "outlined," such a position iscertainly arguable.
While resolution of this issue is of central importance to thiscase and to the law of municipal liability generally, this Courtexpresses no opinion as to the proper interpretation of Jett'sincorporation of Praprotnik as it is not necessary to decidethe Town's Motion for Summary Judgment. As explained below, whenassuming for present purposes that Praprotnik's twostepfinality framework is binding precedent, it does not mandate theconclusion that Vasapolli and Bisignani lacked final policymakingauthority for purposes of summary judgment.
3. Town Managers' Authority
According to the Saugus Town Charter, the Town Manager isempowered to "supervise and direct the administration" of the Saugus Police Department. Charter at 2. Subject to thelimitations of State law, the Town Manager is also empowered to"reorganize, consolidate or abolish" the department. Id. Exceptfor school department employees, the charter vests the TownManager with the authority to appoint and remove all officers andemployees of the Town. Id. The Town Manager's appointmentauthority however, must be exercised based on "merit and fitnessalone." Id. The Town Manager is also responsible foradministering all state and local laws applicable to the Town.Id. at 3.
Despite the appointment authority given to the Town Manager,one could argue that it is not final authority underPraprotnik because the Town Manager is constrained by policesnot of his or her making. 485 U.S. at 127 (plurality opinion)(emphasis added). That is, because the Town Manager's appointmentauthority must be exercised based on "merit and fitness alone,"one could argue that the Town Manager's disregard of thatdirective is not the Town's final policy but a subordinate'sdeparture from it. Id. (plurality opinion).
In Praprotnik, the plurality addressed this point in responseto Justice Brennan's concern that a municipal charter's inclusionof "merit and fitness" language would effectively insulate themunicipality from liability. Id. at 130-31 (plurality opinion).The plurality denied that assertion and observed that refusals to abide by a "merit and fitness" standardcould help to show that a municipality's policies were inreality, different from those in the charter. Id. (pluralityopinion). This seems to suggest that a "merit and fitness"standard would not preclude a finding of final policymakingauthority in the official to whom that standard applies, if thatpolicy is frequently disregarded. See id. (pluralityopinion). One could then argue that Vasapolli's single allegeddeparture from the "merit and fitness" policy is insufficient.
This reasoning, however, is contradicted by other portions ofthe plurality's opinion which suggest that a "merit and fitness"standard does not automatically preclude a finding of finalpolicymaking authority. The town charter involved in Praprotnikrequired appointment decisions as well as "all measures for thecontrol and regulation of employment" be "on the sole basis ofmerit and fitness." Id. at 129 (plurality opinion).
Despite its recognition that the mayor was constrained by thedirectives of the charter, the plurality acknowledged that "onewould have to conclude" that the mayor's policy decisions wouldbe "attributable to the city itself" so long as applicable lawdoes not make the mayor's decisions reviewable by themunicipality's civil service commission. Id. at 126 (pluralityopinion). Thus, the "merit and fitness" provision did not automatically preclude a ruling of the mayor had finalpolicymaking authority. Id. (plurality opinion). Rather, thecivil service commission must have the power to enforce the"merit and fitness" provision by reviewing the mayor's decisionsin order to prevent such a finding. See id. at 126, 129(plurality opinion).
Thus, the plurality's reasoning appears internallycontradictory. One portion of the opinion implies that a "meritand fitness" standard preempts a finding of final authority,id. at 127, 130-31 (plurality opinion), while another partsuggests it does not so long as the official's decisions are notsubject to review by other municipal policymakers. Id. at 126,129 (plurality opinion). One way that this apparent inconsistencycan be resolved is through a closer examination of Praprotnik'sreasoning. Such an examination suggests that the two-stepframework for determining final policymaking authority may nothave been intended to apply to those policymakers who arelegislatively authorized to act but only to those subordinateofficials to whom the legislatively empowered decision-makershave delegated their authority. Id. at 126-27 (pluralityopinion) (emphasis added); Waters v. City of Morristown,242 F.3d 353, 362 (6th Cir. 2001) (citing Praprotnik,485 U.S. at 127 (plurality opinion) ("a municipal employee [is not] a finalpolicymaker unless the official's decisions are . . . not constrained by the official policies of superior officials.")(emphasis added)).
Before articulating its finality framework, the plurality notedthat "[a]s the plurality in Pembaur recognized, specialdifficulties can arise when it is contended that a municipalpolicymaker has delegated his policymaking authority toanother official." Id. at 126 (plurality opinion) (citationomitted) (emphasis added). Indeed, the Pembaur pluralityobserved that "[a]uthority to make municipal policy may begranted directly by a legislative enactment or may bedelegated by an official who possess such authority" and thatpolicymaking authority may therefore be spread among variousofficers and official bodies. Pembaur, 475 U.S. at 483(plurality opinion).
To address the difficulties inherent in the delegation ofauthority, the Praprotnik plurality offered principles toprovide useful guidance. Praprotnik, 485 U.S. at 127 (pluralityopinion). Among those principles was the plurality's two-stepframework for determining final policymaking authority. Id.(plurality opinion). According to the plurality, "[w]hen anofficial's discretionary decisions are constrained by policiesnot of that official's making, those policies, rather than thesubordinate's departures from them, are the act of themunicipality. Similarly, when a subordinate's decision issubject to review by the municipality's authorizedpolicymakers, they have retained the authority to measure the official'sconduct for conformance with their policies." Id. (pluralityopinion) (emphasis added).
Thus, the determination that the mayor in Praprotnik hadfinal policymaking authority can be reconciled with the fact thathis policy decisions were subject to the charter's "merit andfitness" policy. This reconciliation stems from the fact he wasnot a subordinate whose authority relied upon a delegationfrom another official but was instead provided directauthority by legislative enactment. Praprotnik, 485 U.S. at 127(plurality opinion); Pembaur, 475 U.S. at 483 (pluralityopinion).
So understood, the mere inclusion of "merit and fitness"language in a municipal charter, does not prevent vesting finalpolicymaking authority in the official whom the charter empowers.See Praprotnik, 485 U.S. at 126, 129 (plurality opinion).Rather, for final authority to be foreclosed, another municipalpolicymaker must have the power to review that official'sdecisions. Id. at 126, 129 (plurality opinion).24 This Court is mindful of the fact that this interpretation hasthe unusual effect of according different legal significance tothe same legislative language depending on the person to whom itis applied. That is, as applied to the official who islegislatively empowered, it does not prevent a ruling that theindividual has final policymaking authority; as applied to asubordinate to whom that policymaker delegates her authority,however, it precludes a ruling that the subordinate has finalauthority.
This interpretation, however, avoids reading Praprotnik asinternally contradictory, a far more unusual result. Moreover,this understanding is better able to comply with the policyunderlying municipal liability which seeks to hold themunicipality accountable for the conduct of those whose acts mayfairly be said to be those of the municipality. Brown,520 U.S. at 403-404 (citing Monell, 436 U.S. at 694). When a localgovernment official's decisions are unreviewable within thegoverning structure, those decisions may fairly be said torepresent official as well as final policy because within thatofficial's sphere of discretion, she is the vessel through whichthe municipality acts. See id. That authorizing legislationrequires an official to make her decisions based on "merit andfitness alone" makes her authority no less final when thatofficial herself is the sole determiner of whether that standard has been met. See Praprotnik, 485 U.S. at 126, 129 (pluralityopinion); see also, id. at 145 n. 7 (Brennan, J.,concurring); Martinez v. City of Opa-Locka, 971 F.2d 708,714-15 (11th Cir. 1992) (holding that under Praprotnik, a towncharter's directive that city manager's personnel decisions bebased on "merit and fitness" did not preclude city manager'sfinal policymaking authority where no other town officials wereempowered to enforce that provision); Melton v. OklahomaCity, 879 F.2d 706, 724-25 (10th Cir. 1989) rev'd on othergrounds 928 F.2d 920(10th Cir. 1991) (holding that underPraprotnik, city manager had final policymaking authorityregarding personnel decision despite city charter's command thatall personnel decisions be made according to "merit andfitness").25
When a subordinate has only delegated authority, her acts arenot as obviously attributable to the municipality. Presumably, ifa subordinate failed to adhere to a "merit and fitness" standard,the delegating official could easily rescind that authority. Conversely, limiting the scope of a legislativelyauthorized official's authority would require the more cumbersomeprocess of either amending or repealing the authorizinglegislation. Because a subordinate's authority can be morereadily taken back, her departures from required standards arenot as easily characterized as those of themunicipality.26
While this interpretation reconciles Praprotnik's apparentinconsistency, this Court recognizes that its two-step frameworkcould also be interpreted to apply beyond mere instances ofdelegated authority. Although the plurality articulated itsframework in the context of its discussion of delegation, itslanguage did not limit its reasoning to subordinates: "When anofficial's discretionary decisions are constrained by policiesnot of that official's making those polices . . . are the actof the municipality." Praprotnik, 485 U.S. at 127 (pluralityopinion) (emphasis added). Thus, the opinion can fairly be read to apply to the policymaking authority of both "authorized" and"subordinate" decision-makers. See id. (plurality opinion);Legal Aid Soc'y v. City of New York, 114 F. Supp. 2d 204, 233(S.D.N.Y. 2000) (observing that under Praprotnik, to the extenta mayor's decisions were constrained by a separate municipalboard's policy against favoritism in the procurement ofcontracts, such constraint could potentially prevent a finding ofthe mayor's final policymaking authority in that area).
Similar to the issue of Praprotnik's precedential force,whether its method for determining final policymaking authorityapplies equally to "authorized" decision-makers and"subordinates" is no doubt crucial to the ultimate resolution ofthis case. At this stage, however, this Court need not determinethose issues conclusively. As mentioned above, even ifPraprotnik is governing precedent and even if its frameworkapplies beyond instances of delegation, Praprotnik does notforeclose a finding that the Saugus Town Manager has finalpolicymaking authority so as to warrant summary judgment.
It is sufficient that Praprotnik can be read to hold that a"merit and fitness" standard does not by itself cut off anofficial's final policymaking authority. See Praprotnik,485 U.S. at 126, 129 (plurality opinion). Under this interpretationof Praprotnik, foreclosure of final policymaking authority alsorequires an official's decisions to be reviewable by separate municipal officials. Id. at 126 (plurality opinion). Becausethere has been no indication that the Town Manager's appointmentdecisions are subject to review by other municipal officials suchas the Board of Selectmen, summary judgment is not appropriate.
The record includes only a portion of the Saugus Town Charter.Within that portion the charter grants the Town Manager broadauthority to "supervise and direct" the police department'sadministration. Charter at 2. The Town Manager is specificallyempowered to make personnel decisions including the appointmentof police chief. Id. Thus far, there has been no indicationthat other provisions of the charter (or any other source of law)subject the Town Manager's personnel decisions to any type ofreview within the municipality. To the contrary, the recordevidence discussed above indicates the autonomy the Town Managerenjoys in making these decisions.
Moreover, the Town has not refuted Putnam's claim that the TownManager has final policymaking authority and neither party hasaddressed the requirements of that element. Pl.'s Mem. at16-17.27 Accordingly, given the evidence in the record,this Court finds that the absence of final policymaking authorityhas not been established as matter of law. LaSota v. Town of Topsfield, 979 F. Supp. 45, 49 (D. Mass. 1997) (Gertner, J.)(holding that where record is not fully developed, evidence thatofficials likely had final policymaking authority under statelaw sufficient to defeat summary judgment) (emphasis added).
Finally, Putnam has cited sufficient evidence permitting theinference that Vasapolli, in his appointment decisionintentionally deprived him of a federally protected right.Brown, 520 U.S. at 404-05. As discussed at length above, Putnamhas produced evidence that Vasapolli bypassed him for thetemporary chief position in retaliation for his First Amendmentprotected activity. If believed, this provides a sufficient basisfor the imposition of municipal liability because it "necessarilyestablishes that the municipality acted culpably." Id. at 405(emphasis added). Thus, the Town's further argument that Putnam'smunicipal liability claim fails because he is unable to establishan underlying constitutional violation by Vasapolli or Bisignaniis insufficient for a grant summary judgment.
D. Putnam's Whistleblower Act Claim Against The Town ofSaugus
In his complaint, Putnam claims the Town violated his rightsunder Mass. Gen. Laws ch. 149, § 185 because it passed over himfor the positions of temporary and permanent chief in retaliationfor his report on the Kelleher incident and for his testimony before the State Ethics Commission. Compl. ¶¶ 46-48; Pl.'s Mem.at 19-20. That statute, commonly known as the "Whistleblower Act"provides, in relevant part: (b) An employer shall not take any retaliatory action against an employee because the employee does any of the following: (1) Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or of another employer with whom the employee's employer has a business relationship, that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law, or which the employee reasonably believes poses a risk to public health, safety or the environment; (2) Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law, or activity, policy or practice which the employee reasonably believes poses a risk to public health, safety or the environment by the employer, or by another employer with whom the employee's employer has a business relationship; or (3) Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law, or which the employee reasonably believes poses a risk to public health, safety or the environment.Mass. Gen. Laws ch. 149, § 185(b).
The Whistleblower Act gives an aggrieved employee a privateright of action against a public employer, including amunicipality, if the employer takes retaliatory action againsther for engaging in protected activities. Bennett v. City of Holyoke, 362 F.3d 1, 5 (1st Cir. 2004). A "retaliatory action"includes discharge, suspension, demotion, or any other actionthat adversely affects the terms and conditions of employment.Id. at 5 (citing § 185(a)(5)). Additionally, "[t]he term`public body' is defined broadly to include legislative,judicial, administrative, and law enforcement agencies at thefederal, state, and local levels." Id. (citing § 185(a)(3)).
Subject to certain exceptions, Whistleblower Act protectiondoes not apply to an employee who makes a disclosure to a publicbody unless the employee has brought the wrongful conduct atissue to the attention of a supervisor by written notice andgives the employer a reasonable opportunity to correct theactivity.28 § 185(c)(1). Additionally, an employee whobrings suit under the Whistleblower Act waives her rights andremedies arising from the employer's same retaliatory actions"under any other contract, collective bargaining agreement,state law, rule or regulation, or under the common law."Section 185(f); Bennett v. City of Holyoke,230 F. Supp. 2d 207, 220-21 (D. Mass. 2002) (Ponsor, J.) (emphasis added).
Putnam claims that his testimony before the Ethics Commission is covered by section 185(b)(2) of the statute. Pl.'sMem. at 20. Further, Putnam asserts, his disclosure of theKelleher incident through his written report is covered undersection 185(b)(1). Id. at 19.
1. Putnam's Ethics Commission Testimony
The Town argues that Putnam's Whistleblower Act claim againstit must fail because Putnam has not established that Vasapolliand Bisignani were aware that Putnam had testified before theState Ethics Commission. Town's Mem. at 5. That is, the Townasserts, even if the State Ethics Commission is a "public body"entitling Putnam to protection under the whistleblower statute,the appointing authorities for the two positions, Vasapolli andBisignani, were not aware that Putnam had testified before theEthics Commission or of the substance of that testimony beforemaking their appointment decisions. Id.
The Town's argument here is identical to Vasapolli's andBisignani's argument above in relation to Putnam's FirstAmendment claim. For the same reasons stated above, namely that ajury could permissibly find that Vasapolli and Bisignani knewabout Putnam's testimony, the Town's argument is insufficient fora grant of summary judgment of Putnam's Whistleblower claim.
The Town further argues that Putnam's Whisteblower Act claimmust fail because Putnam has failed to establish a causal connection between his testimony before the Ethics Commission andthe decision to bypass him. Id. 6. The Town's argument here issimilar to Vasapolli's and Bisignani's argument above in relationto Putnam's First Amendment claim. That is, because theWhistleblower Act requires the retaliatory act to be "because" ofa plaintiff's testimony before a public body, Putnam's failure todemonstrate a causal connection between his testimony and thebypass entitles the Town to summary judgment. Dirrane v.Brookline Police Dep't, 315 F.3d 65, 72 (1st Cir. 2002). Thereis, however, sufficient evidence to permit the inference thatPutnam's protected speech was causally related to Vasapolli'sdecision to bypass him for the position.
Vasapolli told officer McGrath that he had a "problem" withPutnam because of the way he handled the Kelleher incident andfor writing a report about it. McGrath Aff. ¶ 5. This was said indirect response to McGrath's assertion that he believed Vasapollihad decided to appoint MacKay to the position of temporary chief.Id. The substance of Putnam's Ethics Commission testimony wasnearly identical to the information contained in his writtenreport, i.e. it highlighted the improper behavior of Chief Felixand Selectman Kelleher. Compl. ¶ 23; Putnam Dep. at 78-79.
Here at the summary judgment phase all reasonable inferencesmust be drawn in Putnam's favor. Perez v. Volvo Car Corp., 247 F.3d 303, 310 (1st Cir. 2001). Because of (1) the availability ofthe inference that Vasapolli knew about Putnam's EthicsCommission testimony, (2) the similarity between Putnam's reportand Ethics Commission testimony, and (3) the fact that Vasapollibypassed Putnam days after his testimony, a reasonable inferenceis available that Vasapolli bypassed Putnam, in part, because ofhis testimony. While this is not conclusive proof of Vasapolli'smotive, it is enough to create a genuine issue as to his motive.Fed.R.Civ.P. 56(c). Accordingly, the Town is not entitled tosummary judgment on Putnam's Whistleblower Act claim.
2. Putnam's Report on the Kelleher Incident
Even if an inference was not available that Vasapolli bypassedPutnam in retaliation for his Ethics Commission Testimony,summary judgment would not be available because of the recordevidence demonstrating that Vasapolli bypassed Putnam as a resultof his report on the Kelleher incident.
The Whistleblower Act's prohibition of retaliation is notlimited to employees' disclosures to agencies such as the EthicsCommission. Rather, the term "public body" is broadly defined toinclude police departments. Section 185(a)(3); Dirrane,315 F.3d at 73. Thus, a police officer's internal report regardingfellow officers' misconduct qualifies as a "disclosure" to a"public body" for purposes of the Whistleblower Act. Section185(b)(1); Dirrane, 315 F.3d at 72-73. On the face of the statute, however, it appears that Putnam'sreport of the Kelleher incident cannot be shielded fromretaliation unless he provided prior written notice of theincident to the police department. Section 185(c)(1) (emphasisadded). That is, the statute requires an employee to providewritten notice of the misconduct to a supervisor beforedisclosing it to a "public body," which in this case happens tobe the police department itself. Id. Thus, the statute seems tomandate the paradoxical result that Putnam provide the policedepartment with a written account of the Kelleher incident beforefiling his report of the incident. Id.
This anomaly was recognized by the First Circuit in Dirranev. Brookline Police Dep't, which held that such a literalapplication of the statute would be at odds with its design andpurpose. 315 F.3d at 73. As the First Circuit noted, the "writtennotice" requirement of the Whistleblower Act was intended to givethe employer "an opportunity to clean up its own house before thematter was taken outside." Id. Where the employer itself is thepublic body to whom the disclosure is made, such prior writtennotice is not necessary. Id. Accordingly, the First Circuitheld, the statute's requirement of written notice and anopportunity to correct is only imposed where the disclosure ismade to an outside public body. Id. (emphasis added); seealso, Wagner, 241 F. Supp. 2d at 97-98. Thus, Putnam's report of the Kelleher incident is exempt fromthe statute's prior written notice requirement because suchdisclosure was not made to an "outside" public body. Dirrane,315 F.3d at 75.29 Because Putnam's report can beclassified as a disclosure to a public body for purposes of thestatute and because of the direct evidence showing that Vasapolliretaliated against Putnam for that disclosure, summary judgmentconcerning Putnam's Whistleblower Act claim is inappropriate. III. CONCLUSION
Accordingly, in light of the analysis above on January 27,2005, Vasapolli's and Bisignani's Motion for Summary Judgment[Doc. No. 22] was DENIED as to Vasapolli and it is now ALLOWED asto Bisignani. The Town of Saugus' Motion for Summary Judgment[Doc. No. 20] is now DENIED.
1. Lieutenant is the second highest rank in the Saugus PoliceDepartment in which there is no rank of Captain. Pl.'s Opp'n toDefs.' Mot. for Summ. J. ("Pl.'s Mem.") at 3.
2. The Board of Selectmen is the body which, among otherthings, appoints the Saugus Town Manager. Defs. John Vassapolli'sand Andrew Bisgnani's Mem. in Supp. of Mot. for Summ. J. ("Defs.'Mem.") at 5.
3. Putnam's pursuit of the temporary police chief position isdiscussed in greater detail below.
4. Town Manager Angelo was reprimanded for his participationin the Kelleher incident because on that night, Angelo contactedFelix and attempted to secure preferential treatment forKelleher. Pl.'s Statement of Facts, Ex. 10, Letter from PeterSturges, Executive Director, State Ethics Commission to StevenAngelo of 6/25/03 at 1.
5. Putnam's pursuit of the position of permanent police chiefis discussed in greater detail below.
6. That attorney is not Putnam's present counsel. According toPutnam, he retained an attorney in this matter because Vasapolli"is very close professionally and personally with persons whowere affected by the Ethics Committee [sic] investigation namely,Mr. Angelo and Mr. Kelleher." Putnam Dep. at 87.
7. Putnam's response was that regardless of the identity ofthe person involved or their position, he would have treated themthe same way. Id. at 70-71. Both MacKay and DiMella equivocatedthat their handling of the incident would "depend on thesituation" and that "they would have had to have been there" toknow how they would handle it. Id. at 70. MacKay respondedfurther he would not have tried to influence the decision of theofficers on the scene. Id.
8. The Executive Officer/Acting Chief assumes the role ofchief when the chief is on vacation or out sick. Id.
9. Bisignani acknowledged, that as far as he knew, the onlySaugus politicians who had recently been arrested or involved ina drunk driving matter were Selectmen Cogliano and Kelleher.Bisignani Dep. at 37.
10. While Putnam's desire to clarify his involvement may beunderstood as a personal interest, such characterization does notremove Putnam's report from the realm of public concern as thatrequirement demands only that an employee not speak "upon mattersonly of personal interest. . . ." Connick, 461 U.S. at 147(emphasis added); O'Connor, 994 F.2d at 915; see also Cityof San Diego v. Roe, 125 S. Ct. 521, 525 (2004) (citationomitted); Guilloty Perez, 339 F.3d at 51 (citation omitted).Furthermore, even if a jury finds that Putnam was partiallymotivated by a personal grievance with Felix, such motivationdoes not automatically cut off First Amendment protection.Wagner, 241 F. Supp. 2d at 92 ("a plaintiff who personallydislikes, or bears a grudge against, a particular individual doesnot necessarily lose his right to make statements regarding thatindividual that raise matters of public concern, even if hismotive in making the statements derives partially or completelyfrom personal animus").
11. The defendants do not dispute Putnam's assertion that hisspeech meets the second requirement of an actionable FirstAmendment claim, namely that his interest in disclosing Kelleherincident and the public's interest in being informed about itoutweigh the Town's interest in the efficient administration ofthe workplace. Mullin, 284 F.3d at 37-38. Because the Town doesnot claim any legitimate interest in curtailing Putnam's speech,this Court cannot conclude as matter of law that its interestoutweighs that of Putnam and the public. O'Connor,994 F.2d at 916. An important part of the record supporting this conclusionis the absence of any evidence showing a disruption of policedepartment functioning. Wagner, 241 F. Supp. 2d at 93-94.Additionally, because the Town does not dispute the accuracy ofthe information disclosed by Putnam, the weight accorded to itsinterests may be reduced. O'Connor, 994 F.2d at 916 n. 8(citation omitted).
12. A plaintiff does not have to produce, as Vasapolli andBisignani contend, "significantly probative evidence" that theprotected activity was a "but for" cause of the adverseemployment action; she must only show that it was a "substantialor motivating factor." Vazquez-Valentin, 385 F.3d at 30(emphasis added). The precedent that Vasapolli and Bisignani citefor the more stringent burden of proof did not involve a FirstAmendment claim but a retaliatory discharge claim under42 U.S.C. § 215. Defs.' Mem. at 8 (citing Kearney v. Town of Wareham,316 F.3d 18, 24 (1st Cir. 2002)).
13. Even if Vasapolli is to be believed that he was unaware ofPutnam's testimony, he was aware of Putnam's police report on theKelleher incident. Vasapolli Dep. at 16-17, 24. Therefore,Vasapolli's lack of awareness of Putnam's testimony would notautomatically sever a causal connection between Putnam'sprotected activity and Vasapolli's hiring decision.
14. MacKay, however, denies that he deleted the entry. MacKayDep. at 39-40.
15. The only connection Putnam draws between his activitiesand Bisignani's hiring decision relates to his order thatSelectman Cogliano be charged with a liquor law violation. Pl.'sMem. at 12. As discussed at length above, however, that order didnot constitute First Amendment protected speech. Putnam'sargument that a jury could find that some of the interviewquestions were based on the Kelleher incident is equallyunavailing. Even if such an inference could be drawn, it does notpermit the further inference that Bisignani retaliated againstPutnam for his report and testimony related to thatincident.
16. Fabiano claimed that his termination resulted from hislawsuit challenging a decision of the City's Zoning Board ofAppeal. Id. at 450.
17. Citation to unpublished opinions has been an issue ofconsiderable debate, which continues until today. See 1st Cir.Loc. R. 32.3(b). The Eighth and Ninth Circuits are on extremeends of the debate. Anastasoff v. United States,223 F.3d 898, 899-905 (8th Cir. 2000) (R. Arnold, J.), vacated as moot,235 F.3d 1054 (8th Cir. 2000) (en banc) (holding that unpublishedopinions have precedential effect); Hart v. Massanari,266 F.3d 1155, 1180 (9th Cir. 2001) (Kozinski, J.) (upholding itslocal rule prohibiting the citation of unpublished decisions asconstitutional); see also Alshrafi v. American Airlines,Inc., 321 F. Supp. 2d 150, 160 n. 9 (D. Mass. 2004) (reviewingthe holdings in Anastasoff and Hart). For a more complete reflection of this debate, see Stephen R.Barnett, In Support of Proposed Federal Rule of AppellateProcedure 32.1: A Reply to Judge Alex Kozinski, 51-DEC Fed. Law.32, (November/December 2004); Anne Coyle, Note, A Modest Reform:The New Rule 32.1 Permitting Citation to Unpublished Opinions inthe Federal Courts of Appeals, 72 Fordham. L. Rev. 2471 (2004);A Lawrence J. Fox, Those Unpublished Opinions: An AppropriateExpedience or an Abdication of Responsibility?, 32 Hofstra L.Rev. 1215 (2004); Hon. Alex Kozinski, Letter, 51-JUN Fed. Law.36, 37 (June 2004); Gary Young, Cite, Publish or Perish?, Nat'lL.J., May 3, 2004, at S1. This Court considers the reasoning of Anastasoff especiallycompelling and thus treats the holdings of unpublished opinionsof the First Circuit "with great care and respect," even thoughthe Court of Appeals itself does not accord these opinionsprecedential weight. Alshrafi, 321 F. Supp. 2d at 160 n. 9;Giese v. Pierce Chem. Co., 43 F. Supp. 2d 98, 103 n. 1 (D.Mass. 1999) (relying on unpublished opinions' persuasiveauthority).
18. This is not to say that municipal liability could havebeen imposed based on Hopkins' decision to terminate Fabiano.Rather, these precedents simply establish that a claim'sdependence on a single decision does not automatically precludethe imposition of municipal liability. As explained below, forliability to be imposed based on a single decision, thedecisionmaker must have final policymaking authority regardingthe matter decided.
19. State and local law includes both "positive law" as wellas well as "custom and usage" having the force of law. Id.(citation omitted).
20. That the State Human Resources Division had the authorityto disapprove Putnam's bypass would not be affected by thispronouncement as it is the State's not the municipality'spolicymaker.
21. Justice Stevens too rejected the plurality's framework inhis dissenting opinion. Id. at 148 & n. 1 (Stevens, J.,dissenting) ("No matter how narrowly the Court may define thestandards for imposing liability on municipalities in § 1983litigation. . . . I remain convinced that Congress intended thedoctrine of respondeat superior to apply in § 1983litigation.").
22. Moreover, the conclusion that sheriffs are finalpolicymakers for the state is not as legally significant becausestates are not subject to liability under section 1983. Quernv. Jordan, 440 U.S. 332, 338 (1979).
23. This, of course, is not the first time the judges of theDistrict of Massachusetts have been divided on an issue.Compare United States v. Lahey Clinic Hosp. Inc., No.04-1753, 2005 U.S. App. LEXIS 1828, *12 n. 4 (1st Cir. Feb. 4,2005) (noting the existence a conflict of views within theDistrict of Massachusetts regarding the proper interpretation of42 U.S.C. § 405, and resolving that conflict) (unpublishedopinion) with Ortega v. Star-Kist Foods, Inc.,370 F.3d 124, 127, 132 n. 6 (1st Cir. 2004) (observing split amongDistrict of Massachusetts judges regarding class actions andwhether 28 U.S.C. § 1367 provides supplemental jurisdiction overall class members' claims where the named plaintiff meets theamount-in-controversy requirement but other class members do not,and resolving that conflict).
24. This refers not to the second step of the plurality'sfinality framework describing "when a subordinate's decision issubject to review by the municipality's authorizedpolicymakers," Id. at 127 (plurality opinion) (emphasisadded). Rather, it refers to the plurality's earlier observationthat "[a]ssuming applicable law" does not make the mayor'sdecisions reviewable by municipality's civil service commission,"one would have to conclude that policy decisions made ? by themayor . . . would be attributable to the city itself." Id. at126 (plurality opinion). This is merely a common senseunderstanding of the word "final."
25. A different way of stating the same point is to the extentan official is not monitored for compliance with "merit andfitness" policies, the official is not actually "constrained" bysuch polices for purposes of Praprotnik. See Randle v.City of Aurora, 69 F.3d 441, 448-49 (10th Cir. 1995) (holdingthat in determining final policymaking authority, the pertinentissue is not whether the official is hypothetically constrainedby policies not of that official's making but whether suchconstraints are actually meaningful and citing Melton to notethat a city charter's "merit and fitness" policy did not precludean official's final policymaking authority) (citations omitted)(emphasis added).
26. If Praprotnik is binding precedent, this interpretationmight help explain the District of Massachusetts decisions thathave failed to apply its framework where the officials at issuewere legislatively authorized to act. This interpretation wouldnot, however, reconcile Praprotnik with the First Circuit'sdecision in Silva v. Worden. 130 F.3d at 31. Even ifPraprotnik's finality framework did not govern that analysis,the finding of final policymaking authority in Silva conflictswith Praprotnik's earlier admonition that final authoritycannot reside in an official's whose decisions are subject toreview within municipal government. Praprotnik, 485 U.S. at 126(plurality opinion); Silva, 139 F.3d at 31.
27. Rather, the Town simply relied on its argument that asingle act is insufficient to establish a municipal policy.Town's Mem. at 14-15. The Town is of course, free to argue at anyappropriate juncture that the Town Manager lacks finalpolicymaking authority.
28. Putnam's report of the Kelleher incident provided suchwritten notice because it brought to light the same conduct aboutwhich he testified before the Ethics Commission. See Wagner,241 F. Supp. 2d at 97-98. Further, the employer had a "reasonableopportunity" to redress the conduct as Putnam did not testifyuntil eleven months after his report was filed.
29. It should be noted that the same result could be reachedin this case without contravening the statute's plain meaning.The prior written notice requirement applies only to disclosuresmade to a "public body." Section 185(c)(1). The statute'sprotection, however, also extends to disclosures made to a"supervisor." Section 185(b)(1). A supervisor is defined by thestatute as one with "authority to direct and control the workperformance of . . . the employee [and] who has authority to takecorrective action regarding the violation. . . ." Section185(a)(4). Felix, who was Chief of Police, appears to satisfythis definition. Assuming a protocol in which a police chiefreads officers' filed reports, Putnam's report could beclassified as a disclosure to a supervisor, a disclosure as towhich no additional notice requirement applies. It is merelycoincidental that Felix occupied the dual role of Putnam'ssupervisor and purveyor of the misconduct reported.