United States Court of Appeals For the First Circuit
No. 20-1135
VINCENT E. STUART,
Plaintiff, Appellant,
v.
CITY OF FRAMINGHAM, MASSACHUSETTS, f/k/a Town of Framingham; and BRIAN SIMONEAU, Assistant to the Chief of Police of the City of Framingham,
Defendant, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Lynch, Kayatta, and Barron, Circuit Judges.
Benjamin J. Wish, with whom Seth J. Robbins and Todd & Weld, LLP, were on brief, for appellant. John J. Cloherty III, with whom Pierce, Davis & Perritano, LLP, was on brief, for appellees.
February 24, 2021 LYNCH, Circuit Judge. The district court granted
summary judgment in favor of defendants City of Framingham and
Brian Simoneau in this lawsuit brought by former Framingham police
officer Vincent Stuart raising Garcetti speech retaliation and
Massachusetts Whistleblower Act claims. See Garcetti v. Ceballos,
547 U.S. 410 (2006); Mass. Gen. Laws ch. 149, § 185(b)(1). Because
the undisputed facts demonstrate that defendants have met their
burden to show that the adverse employment decisions would have
occurred whether or not Stuart engaged in protected speech, we
affirm the district court's entry of summary judgment. See Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977)("Mt. Healthy"); Cf. Garcetti, 547 U.S. at 417-18.
I.
A full recitation of the facts and issues in this case
can be found in the district court's January 22, 2020, memorandum
and order. Stuart v. City of Framingham, No. 1:16-cv-12559-IT,
2020 WL 360552, at *1-5 (D. Mass. Jan. 22, 2020). In brief, Stuart
was a police officer in the Framingham Police Department ("FPD")
from July 2000 until the termination of his employment on February
22, 2017. Id. at *1, *4. In 2014 he was promoted to lieutenant
and served as a shift commander and as the commanding officer of
the Framingham Weapons Training Unit. Id. at *1. Stuart was then
- 2 - a member of the Executive Board of the Framingham Police Superior
Officers Association -- a police union. Id.
Between 2015 and 2017, Stuart made two unrelated
complaints against other members of the FPD. The first was in
2015, when Stuart brought a complaint against Brian Simoneau, who
was a civilian "Assistant to the Chief." Id. at *1-2. Stuart
stated that Simoneau had performed non-civilian police functions,
including motor vehicle stops and responding to police calls.
Stuart's union also submitted a letter, which stated that
Simoneau's behavior "open[ed] members of the Superior Officers
Union to tremendous liability issues." Id. at *2. In response,
Chief Kenneth Ferguson prohibited Simoneau from acting as a
"Special Officer." Simoneau also participated in weapons
training.1 Id.
Separately, Stuart in 2016 filed a complaint against
Lieutenant Robert Downing. Stuart had a long-running dispute with
1 In 2015, the FPD changed its policy to require shift commanders to personally book arrestees who arrived during their shift. Stuart states that because he booked just 7% of the arrestees who arrived while he was on duty, other shift commanders called this change the "Stuart policy" and resented the additional work it entailed. Stuart, 2020 WL 360552, at *2. FPD also investigated Stuart's possible misuse of his flexible leave time. Id. In a settlement regarding the flexible leave investigation, Stuart attested that these actions were not retaliation for his complaint against Simoneau. The district court accordingly did not treat them as adverse employment actions, and Stuart does not make any argument on appeal that this settlement is not binding here. Id.
- 3 - Downing. Their relationship had deteriorated rapidly between 2008
and 2009, while Downing was President of the Framingham Girls
Softball League. As President, Downing "left Stuart's daughter
off the [team] draft roster." Stuart and Downing's relationship
never recovered. Stuart told Chief Ferguson in May 2016, for
example, that "Downing is running around trying to screw me and my
daughter." In April 2016, Stuart discovered that Downing was
involved in an investigation into Stuart's daughter, who was a
suspect in an assault and battery. On May 3, 2016, Stuart emailed
himself a copy of the investigation report relating to his
daughter.
On May 26, 2016, Stuart submitted his complaint against
Downing to Framingham's human resources director. Stuart alleged
that Downing had committed fraud, larceny, and other crimes, along
with violations of FPD's internal policies. He claimed that
Downing's "CTS -- Less Lethal Impact Munitions" instructor
certification had expired in 2006, but Downing nonetheless
continued to teach "Less Lethal Impact Munitions" courses and to
certify on his overtime reports that he was a qualified instructor.
Stuart also contacted Chief Ferguson and asked that Simoneau not
be involved in any investigation of his complaint. Id. at *3.
On August 8, 2016, Deputy Chief Ronald Brandolini sent
Stuart a Notice of Investigation, which stated, "your submission
of [the Downing complaint] may . . . constitute conduct unbecoming
- 4 - a Framingham Police Lieutenant and violate Department Rule 10.2
which prohibits the act of knowingly entering or causing to be
entered . . . a police report or police record [containing] any
inaccurate, false, or improper information." FPD placed Stuart on
paid administrative leave effective that day. That paid
administrative leave lasted through February 22, 2017, after the
investigation had been completed and after there was a further
hearing on charges stemming from the investigation. Id. at *3-4.
During the investigation, Brandolini interviewed individuals
within the department and at the company that provided FPD with
less lethal weapons training. On September 30, 2016 he submitted
a 354-page report detailing his findings.2 Brandolini concluded
that Stuart had been untruthful in his complaint against Downing.
He listed numerous false or misleading statements in Stuart's
submission, including that "[Brandolini] specifically asked
[Stuart] to compile 'instructor certificates for the past five
years,'" that Stuart reviewed the certifications for all
instructors, that he was able to get certificates for every
instructor except Downing, that CTS training representative Dan
Miller told Stuart the CTS certification records were highly
2 Simoneau assisted in preparing the Brandolini report, but the parties dispute the extent of his involvement. Stuart claims that Simoneau "drafted much of the substance of th[e] report" while defendants claim that Simoneau merely formatted the report and helped to compile documents.
- 5 - accurate through 2009, that Miller told Stuart that Downing did
not attend the 2011 instructor training, and that Miller only
confirmed Downing's 2002 instructor certification and not
certifications for other years. Brandolini explained in his report
that he began to investigate Stuart almost immediately after he
saw the Downing complaint. He "quickly determined [the complaint]
was not accurate" by checking Downing's "Less Lethal Impact
Munitions" certification records in FPD's internal computer system
and confirming with FPD's payroll coordinator that Downing had not
claimed overtime for work as a Less Lethal Impact Munitions
instructor on at least thirty-one of the thirty-six dates that
Stuart alleged in his complaint. Brandolini was also aware of the
longstanding issues between Stuart and Downing. Brandolini
states, "anyone with knowledge of the Stuart-Downing relationship"
would "conclude[] that Stuart harbors substantial hatred towards
Downing."
After receipt of Brandolini's investigative report, the
City appointed an outside independent hearing officer to hear the
allegations against Stuart. See Mass. Gen. Laws ch. 31, § 41. It
selected John Collins, an attorney who is not an employee of the
City. On January 31, 2017, Collins conducted the disciplinary
hearing. At the hearing Collins heard witnesses and received
exhibits. Brandolini testified on behalf of the City, and Stuart
called two witnesses: Lieutenant Stephen Cronin and Stuart's union
- 6 - president, Sergeant Scott Brown.3 Collins also "repeatedly
invited" both sides to call Stuart as a witness, but Stuart chose
not to testify. Stuart and the City were represented by counsel.
Both lawyers examined witnesses and presented argument.
On February 16, 2017, Collins issued a twenty-eight-page
report detailing his findings from the hearing and recommending
that FPD fire Stuart. Collins found that the evidence presented
at the hearing corroborated the findings in the Brandolini report
as to Stuart's violations. He also found that Stuart had not
substantiated his assertions in defense. Collins concluded that
Stuart violated the Department's rules concerning competence,
filing false reports, truthfulness, and conduct unbecoming of an
officer. Consistent with FPD's policy that officers who engaged
in dishonest conduct must be fired, Collins recommended that each
of the violations of FPD's policies regarding filing false reports
and untruthfulness "requir[ed] termination" of Stuart's
employment. He stated that in light of the obligation imposed on
3 Stuart now complains that he was not permitted to question witnesses about Simoneau's involvement in FPD's investigation into Stuart. Collins made clear that he limited that line of questioning because it was not relevant to the disciplinary issue before him. He explained in his report, "[Stuart's] well-prepared and articulate counsel often strenuously urged me to focus on other areas, and some of these may become relevant in another forum, [but] my assignment was limited to determining whether there was just cause to discipline Lt. Stuart based on charges that resulted from [Brandolini's] investigation."
- 7 - law enforcement officers by the Brady and Giglio4 doctrines, Stuart
was "unable to perform essential job duties including testifying
credibly in court or in other forums." Collins also recommended
that Stuart's violation of FPD's rule concerning conduct
unbecoming of an officer, on its own, warranted a "moderate period
of suspension" between "30 [and] 60 day[s]," and his violation of
the rule concerning incompetence warranted a 30-day suspension.
Stuart has presented no evidence that Collins was ever aware of
the Simoneau complaint, and Stuart does not allege that he was.
Stuart did not appeal from the hearing determination to the Civil
Service Commission, as he was entitled to do. Mass. Gen. Laws ch.
31, §§ 41, 43.
On February 22, 2017, then Acting Chief Steven Trask
(who replaced Chief Ferguson while Ferguson was on medical leave,
beginning November 16, 2016) accepted Collins' recommendation and
terminated Stuart's employment.5 Stuart, 2020 WL 360552, at *4.
4 See Brady v. Maryland, 373 U.S. 83, 86 (1963) (prosecutors must disclose exculpatory evidence to a criminal defendant); Giglio v. United States, 405 U.S. 150, 154 (1972) (prosecutors must disclose information weighing on the credibility of a key witness to a criminal defendant). 5 Stuart claims that Simoneau had some role in the discussions about Stuart's termination. He states that Simoneau "sent or received thirteen emails with City Counsel and/or the FPD Administration, including Trask, concerning Stuart [between the time of the disciplinary hearing and Stuart's termination]." Stuart has failed to put any of these emails into evidence. He also states, "Simoneau further accepted an invitation from City
- 8 - Trask issued Stuart a termination letter, which stated, "having
thoroughly reviewed and carefully considered Hearing Officer
Collins' findings, conclusions, and recommendations, I adopt and
agree with them. . . . Therefore, for all the reasons set forth in
[the Collins report], and after a thorough examination of the
entire record in this matter, effective this date I am hereby
discharging you from employment with the Framingham Police
Department."
On December 20, 2016, Stuart brought this suit against
the City of Framingham and Simoneau. He initially sued just to
challenge his suspension with pay during FPD's investigation of
the Downing complaint as retaliation in violation of the First
Amendment and the Massachusetts Whistleblower Act. Stuart alleged
that Simoneau improperly motivated the investigation into Stuart,
delayed giving Stuart notice of the investigation, protected
Downing from discipline, and removed favorable language from
Brandolini's report.
After Trask terminated his employment Stuart amended his
complaint to assert claims that the termination of his employment
was in retaliation for his speech. Although Stuart alleged that
Simoneau influenced Trask's decision to accept Collins'
recommendation, he never produced any evidence to support that
Counsel to attend a meeting [about Stuart]," but he provides no details about the meeting.
- 9 - allegation. Cf. Santiago-Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46, 55 (1st Cir. 2000) (discriminatory statements by those
"in a position to influence the decisionmaker" were sufficient to
raise a triable question of pretext in an employment discrimination
suit). After extensive discovery the district court granted
summary judgment for the defendants on both the First Amendment
speech-retaliation and the Massachusetts Whistleblower Act
claims.6 Stuart, 2020 WL 360552, at *1. It found that a reasonable
jury could conclude that Stuart's complaint against Simoneau was
protected speech relating to a matter of public concern. Id. at
*5-6. The court also found that Stuart's paid administrative leave
and the termination of his employment were both adverse employment
actions. Id. at *6. And it concluded that Stuart had not presented
sufficient evidence of a causal relationship between the Simoneau
complaint and Stuart's paid administrative leave and termination.
Id. at *7-8. The court stated, "a reasonable jury could not find
that any protected speech was a substantial and motivating factor
for the adverse employment actions." Id. at *1. It also found
that in any event, "[d]efendants . . . 'met their burden to show
that they would have taken the same adverse employment actions
regardless of [Stuart's] . . . speech.'" Id. at *7 (quoting
6 The court also granted summary judgment as to Stuart's contract law claims. Stuart, 2020 WL 360552, at *8-9. Stuart does not appeal from that portion of the decision.
- 10 - McGunigle v. City of Quincy, 835 F.3d 192, 205 (1st Cir. 2016)).
The district court held that Stuart's Massachusetts Whistleblower
Act claim failed for the same reasons. Id. at *8.
Stuart brought this timely appeal, arguing there is a
genuine material dispute over whether the Simoneau complaint was
a substantial or motivating factor in FPD's decision to place
Stuart on paid administrative lead and terminate Stuart.
II.
We review the district court's grant of summary judgment
de novo. Henderson v. Mass. Bay Transp. Auth., 977 F.3d 20, 29
(1st Cir. 2020). "Summary judgment is appropriate when 'there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.'" McGunigle, 835 F.3d at
202 (quoting Fed. R. Civ. P. 56(a)).
To prevail on a speech-retaliation claim the plaintiff
must first show that his or her protected speech related to a
"matter[] of public concern," Garcetti, 547 U.S. at 417, and was
a "substantial or motivating factor" in the adverse employment
consequence. McGunigle, 835 F.3d at 202 (quoting Decotiis v.
Whittemore, 635 F.3d 22, 29 (1st Cir. 2011)). If the plaintiff
meets that test the burden shifts to the defendant to prove by a
preponderance of evidence that "it would have reached the same
decision . . . [regarding the adverse employment event] even in
the absence of the protected conduct." Mt. Healthy, 429 U.S. at
- 11 - 287. "[T]he plaintiff may then 'discredit the proffered
nondiscriminatory reason, either circumstantially or directly, by
adducing evidence that discrimination was more likely than not a
motivating factor.'" Reyes-Pérez v. State Ins. Fund Corp., 755
F.3d 49, 55 (1st Cir. 2014) (quoting Padilla-García v. Guillermo
Rodríguez, 212 F.3d 69, 77 (1st Cir. 2000)).
The same standard applies to Stuart's Massachusetts
Whistleblower Act claim. "[A] plaintiff's burden of proof under
the [Massachusetts Whistleblower Act] closely parallels his burden
for First Amendment discrimination under Mt. Healthy." Pierce v.
Cotuit Fire Dist., 741 F.3d 295, 303 (1st Cir. 2014); see also
Antonellis v. Dep't of Elder Affs., 152 N.E.3d 798, 811 (Mass.
App. Ct. 2020).
The issue on appeal is whether there is a triable
question that Stuart's Simoneau complaint was a "substantial or
motivating factor" in his suspension and termination.7 As to the
district court's ruling that the Collins hearing was an independent
7 Stuart also argues that the district court was wrong to find that the investigation into Stuart over his use of flexible leave time and the changes to the FPD booking policy were not retaliation. But Stuart does not challenge, or even mention, the district court's finding that Stuart's flexible leave settlement barred any claim of that kind. See Stuart, 2020 WL 360552 at *2 n.2. Accordingly, Stuart has waived any argument challenging the district court's decision on that point. See Universal Ins. Co. v. Off. of Ins. Comm'r, 755 F.3d 34, 39 (1st Cir. 2014) (citing United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).
- 12 - basis for Stuart's firing, there is no claim made that the findings
of untruthfulness were inaccurate. And Stuart presents no evidence
to challenge Collins' independence.8 Stuart's whole assertion is
that the FPD applied differential standards to officers charged
with dishonesty, and that other officers were less severely
disciplined for similar conduct. Because he has presented no
evidence of any differential treatment of dishonesty by FPD, we
affirm the district court's grant of summary judgment.
Stuart argues that the FPD inconsistently applied its
"zero tolerance" policy to dishonesty, terminating him for conduct
that had resulted in less severe discipline for other officers.
This argument is meritless. The other instances of discipline
that Stuart points to concern employees who are not similarly
situated. Stuart focuses his similarly situated argument
primarily on Downing. Downing is not a comparator for at least
three reasons: First, there were no findings that any assertions
against Downing raised issues under the Brady or Giglio doctrines.
Further, there were no findings that Downing was untruthful.
Third, the independent hearing officer's investigation showed it
was Stuart who had been untruthful in his allegations against
Downing.
8 At most Stuart argues Simoneau "personally selected" Collins as the hearing officer, but he has presented no evidence that this was true.
- 13 - As to the other comparators, Stuart tacitly concedes
that the district court correctly found that Matthew Gutwill was
not similarly situated to him. He has waived any argument as to
his two remaining comparators. He discusses them in a single
paragraph, does not mention either by name, and relies entirely on
two paragraphs in the defendants' response to plaintiff's revised
statement of material facts as factual support for his claims.
See Universal Ins. Co. v. Off. of Ins. Comm'r, 755 F.3d 34, 39
(1st Cir. 2014) (citing United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990)). In any event, his discussion of these
comparators in his briefing to the district court was similarly
sparse. On that record, the district court correctly concluded
"there is insufficient evidence from which a jury could infer that
any of the named comparators are similarly situated to Stuart."
Stuart, 2020 WL 360552, at *7 n.4. We conclude that because the
independent hearing officer's findings of untruthfulness required
termination, Stuart plainly would have been subjected to the same
discipline whether or not Simoneau influenced Trask in making the
final termination decision.
Stuart's secondary challenge to the period of his paid
administrative leave during the investigation of the Downing
complaint also fails. Stuart does not dispute that Brandolini
"quickly determined" that Stuart's complaint was inaccurate, or
that it was Brandolini who made the decision to place Stuart on
- 14 - paid administrative leave. Stuart also concedes that Simoneau was
"not essential" to the investigation. Further, Brandolini had
personal knowledge that some of Stuart's allegations against
Downing were inaccurate. Brandolini testified that Stuart's
dishonesty meant he would not be able to testify in criminal cases.
There was no error in the district court's conclusion that FPD
would have imposed the same discipline whether or not Stuart had
ever made a complaint about Simoneau. Under the doctrines of Mt.
Healthy and Garcetti, this conclusion was correct. Mt. Healthy,
429 U.S. at 287; Garcetti, 547 U.S. at 417-18; see also Pierce,
741 F.3d at 303.
III.
The judgment of the district court is affirmed.
- 15 -