322 F.Supp.2d 49 (2004) | Cited 1 time | D. Massachusetts | June 21, 2004


Plaintiff Patrick Scrima was the City of Somerville'sSuperintendent of Inspectional Services from October 9, 1999,until November 9, 2001, when he was informed by the City'sthen-Mayor, Dorothy Kelly Gay, that she would not reappoint himto another one-year term. Shortly before he was terminated,plaintiff was deposed in his official capacity in a casechallenging a building permit he had granted in August 2000.Plaintiff and the City Solicitor Susan Callahan had a differenceof opinion over plaintiff's decision to grant the permit, andprior to the deposition, plaintiff told the Mayor that he wantedto be represented by outside counsel. The Mayor said that shewanted him to use the City's lawyers.

At the deposition, plaintiff was represented by outsidecounsel, although an Assistant City Solicitor was present. In histestimony plaintiff alleged various instances of misconduct byCity officials, including that the Mayor extorted $1 million fromthe discount retailer Target. He now claims that he was fired foralleging misconduct by City officials at the deposition and forinsisting on retaining private counsel and has sued the City and Gay, in her individual and official capacities.He asserts claims for wrongful termination in violation of publicpolicy (Count I), violation of the Massachusetts WhistleblowerStatute, Mass. Gen. Laws ch. 149, § 185 (Count II), andinfringement of his constitutional rights to free speech (CountIII) and due process (Count IV). Defendants seek summary judgmenton all counts.

Plaintiff concedes defendants' request for judgment as to CountIV. Regarding plaintiff's other causes of action, Count I failswith respect to the City and defendant Gay in her officialcapacity. The Massachusetts Tort Claims Act provides theexclusive remedy for torts against a City and its electedofficers, Mass. Gen. Laws ch. 258, § 2, and claims forintentional torts are barred. Id. at § 10(c). However, "[w]hilepublic employers . . . may not be held liable for intentionaltorts committed by their employees, the employees may bepersonally liable for any harm they have caused." Spring v.Geriatric Authority of Holyoke, 475 N.E.2d 727, 734 n. 9 (1985).Therefore, Count I survives summary judgment only as to defendantGay in her individual capacity.1

On Count II plaintiff claims that his conduct should receivewhistleblower protection because the deposition that he gaveconstituted testimony before a "public body conducting aninvestigation, hearing or inquiry into any violation oflaw. . . ." Mass. Gen. Laws ch. 149, § 185(b)(2). The Statutedefines "public body" to include "any federal, state or localjudiciary, or any member or employee thereof." Id. at § 185(a)(3)(B). Plaintiff argues that the fact that attorneys andstenographers are "officers of the court" transforms a privatecivil deposition into a "public body." The plain language of theStatute does not permit such a reading. Defendants are thereforeentitled to summary judgment on Count II.

Finally, plaintiff contends that he had a First Amendment rightto retain his own attorney and to speak honestly at thedeposition. Because there are no allegations or evidence of apolicy or practice of retaliatory firings, Count III does notstate a claim against the City or defendant Gay in her officialcapacity. Fabiano v. Hopkins, 352 F.3d 447, 452 (1st Cir.2003). Moreover, plaintiff has pointed to no authorityestablishing a right to retain private counsel for a publicemployee being sued only in his official capacity, andplaintiff's insistence on being represented by his own lawyer isnot protected speech.

The only issue that remains under Count III is whetherdefendant Gay in her individual capacity violated plaintiff'sFirst Amendment rights by firing him in retaliation for hisdeposition testimony. In order to establish a First Amendmentclaim, plaintiff must show that (1) the speech at issue was amatter of public concern, Connick v. Myers, 461 U.S. 138,147-48 (1983); (2) his First Amendment interests outweigh theCity's interest in the efficient operation of government,Pickering v. Board of Educ., 391 U.S. 563, 568 (1968); and (3)"the protected speech was a substantial or motivating factor inthe adverse action against the plaintiff." Mihos v. Swift,358 F.3d 91, 102 (1st Cir. 2004) (citing Mt. Healthy City Sch. Dist.Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).

Under this three-prong test, summary judgment is inappropriateon Count III. First, plaintiff's testimony is arguably astatement about misconduct and corruption in City government and therefore a matter of public concern,regardless of the fact that he was deposed in his officialcapacity. See O'Connor v. Steeves, 994 F.2d 905, 915 n. 6(1st Cir. 1993) ("[S]peech which discloses any evidence ofcorruption, impropriety or other malfeasance on the part of cityofficials, in terms of content, clearly concerns matter[s] ofpublic import.") (citations and internal quotation marksomitted); Morris v. Crow, 142 F.3d 1379, 1382 (11th Cir. 1998)(contrasting a deputy sheriff's civil deposition testimony onmatters of private concern with "reporting specific wrongs andabuses within [City] government"). Second, although defendantsargue that the Pickering balancing test tips in their favorbecause plaintiff was a "policymaker" for whom "political firing"was acceptable, Flynn v. City of Boston, 140 F.3d 42, 44-45(1st Cir. 1998), genuine issues of material fact exist on theextent of plaintiff's responsibilities as Superintendent ofInspectional Services. Genuine issues of fact also cloud thequestion of whether plaintiff was fired because of his depositiontestimony. Because plaintiff's allegations describe the violationof a clearly established constitutional right that a reasonableCity official would understand, the defense of qualified immunityis not available. Mihos, 358 F.3d at 101-10.

Accordingly, the Motion for Summary Judgment is allowed on allcounts for the City and defendant Gay in her official capacityand on Counts II and IV for defendant Gay in her individualcapacity. It is denied on Counts I and III against defendant Gayin her individual capacity.

1. In a footnote defendants argue that a wrongful terminationclaim does not lie against an individual and would be barred byqualified immunity even if it did. Because genuine issues ofmaterial fact remain about whether defendant Gay causedplaintiff's termination because of his exercise of protectedspeech, infra, defendants' arguments are unavailing.

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