Wynne v. Creigle

825 N.E.2d 559, 63 Mass. App. Ct. 246, 22 I.E.R. Cas. (BNA) 1274, 2005 Mass. App. LEXIS 362
CourtMassachusetts Appeals Court
DecidedApril 14, 2005
DocketNo. 04-P-335
StatusPublished
Cited by28 cases

This text of 825 N.E.2d 559 (Wynne v. Creigle) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wynne v. Creigle, 825 N.E.2d 559, 63 Mass. App. Ct. 246, 22 I.E.R. Cas. (BNA) 1274, 2005 Mass. App. LEXIS 362 (Mass. Ct. App. 2005).

Opinion

Graham, J.

In this appeal, we further consider the scope of petitioning activities protected by the “anti-SLAPP” law, G. L. c. 231, § 59H. The plaintiff, Thomas M. Wynne, Jr., formerly a firefighter for the town of Greenfield, was discharged by the town as the result of an investigation by the Greenfield fire chief into allegations that the plaintiffs behavior was affecting the morale and safe operations of the fire department. The plaintiff later commenced this Superior Court action alleging that the defendant Amy T. Creigle, the surviving spouse of a former Greenfield firefighter, made defamatory comments about [247]*247the plaintiff in a written statement to the Greenfield fire department and in articles in a Greenfield newspaper. He now appeals primarily from the allowance of her special motion to dismiss under G. L. c. 231, § 59H, challenging the judge’s ruling that her statements reflected the exercise of her right of petition protected by the statute. We affirm.

Background. We summarize the undisputed factual and procedural background to the controversy.1 The plaintiff was hired as a Greenfield firefighter in December of 1993. In the summer of 1995, he came to believe that Kenneth Creigle (Creigle), and several others who had been hired as firefighters before the plaintiff, had falsely identified Greenfield as their place of residence to take advantage of an in-town hiring preference. The plaintiff could have had greater seniority had Creigle and the others not been so employed.

In letters written in September and November of 1995 and January of 1996, the plaintiff, through his attorney, reported to the Department of Personnel Administration (DPA) that Creigle might have impermissibly claimed a residency preference. The letters indicated the plaintiff’s concern about his “seniority and attendant benefits” and asked the DPA to investigate. On March 22, 1996, the DPA responded, stating that records from 1989 showed a Greenfield residency for Creigle. Nearly one year passed when, on March 11, 1997, the plaintiff’s attorney requested guidance from the DPA as to remedial procedures with respect to the Creigle issue.

Subsequently, on May 28, 1997, the plaintiff’s attorney sent a “presentment notice” to James MacKenzie, the fire chief of Greenfield, pursuant to G. L. c. 258, § 4. The notice stated that, in light of Creigle’s actions, the plaintiff was presenting claims for negligence and for wrongful acts or omissions. He sent identical letters to the Greenfield board of selectmen, the Greenfield town manager, and the Executive Office of Administration and Finance. In the letters, the plaintiff questioned Creigle’s entitlement to residency preference.

[248]*248Dissatisfied by the failure of MacKenzie and the others to respond to his letters, the plaintiff filed a complaint against Creigle in the Greenfield Division of the District Court Department on September 11, 1997. Thereafter, coworkers and management began to treat the plaintiff differently. On October 22, 1997, MacKenzie transfenred Creigle from one firefighter grouping to another within the department.

On January 28, 1998, Creigle committed suicide.2 Immediately after Creigle’s death, the defendant requested that the plaintiff not attend any services. The defendant claimed that her husband’s suicide followed his harassment by the plaintiff both at and outside of work. Sometime between Creigle’s death and August 7, 1998, the defendant sought legislation providing for payment of death benefits to her as the widow of a firefighter.3

The following month, MacKenzie held a staff meeting in which he discussed allegations by the plaintiff of being harassed by other firefighters, and ordered his officers to stop any harassment. He also sent two memoranda instructing personnel to conduct themselves professionally with regard to the plaintiff.

On February 23, 1998, deputy fire chief Hormidas Lively sent MacKenzie a memorandum reporting that the plaintiff had left the fire station in his pickup truck at such a rapid speed that his tires squealed, possibly endangering civilians. Lively also expressed concern for the plaintiff’s ability to operate emergency equipment and recommended that he be assigned to a nondriving position. On February 27, 1998, as a result of Lively’s memorandum, MacKenzie reprimanded the plaintiff.

On April 11, 1998, a firefighter sent a memorandum to MacKenzie reporting an incident in which the plaintiff allegedly had operated a fire engine at an unsafe speed in responding to a call from a nursing home and failed to obey an order to remain [249]*249with the vehicle while others went into the nursing home. A few days later, another firefighter reported to MacKenzie that the plaintiff left a ladder truck in an “unstartable” condition. These reported actions raised morale and safety concerns regarding the plaintiff. MacKenzie, on May 1, 1998, informed the plaintiff that he was being reassigned to the fire prevention, fire alarm division, under the supervision of assistant fire chief George Herzig, while the department was investigating the allegations of misconduct. MacKenzie assigned Herzig to conduct the investigation.

On May 20, 1998, Herzig completed his investigation. He had taken statements from fifteen firefighters (half of the department), the plaintiff, and the defendant. The firefighters unanimously felt that the plaintiff was causing severe stress in the department and should be fired. Their statements described the plaintiff as an angry man who had harassed the Creigles on numerous occasions. They further indicated that many of them did not feel comfortable working with him.

In her own written statement of May 15, 1998, submitted in connection with the investigation, the defendant indicated that she and her husband had been harassed by the plaintiff. She stated that copies of the plaintiff’s civil complaint had been taped to her husband’s car window; that the plaintiff would sit next to him in the watch room to intimidate him and start a fight; that the plaintiff would tease him about his new truck, implying it had been bought with money the plaintiff would get in his lawsuit; that the Creigles would continually receive copies of the lawsuit papers in the mail; that the plaintiff often made prank telephone calls to their home; that the plaintiff would drive into their driveway at night; and that on one occasion, the plaintiff, knowing the Creigles needed money, told the defendant to “come on over here,” implying (in her mind) that he would pay her for sexual favors.

On June 15, 1998, a departmental hearing was held regarding the disciplinary charges against the plaintiff. The plaintiff and two other firefighters testified. On June 23, 1998, MacKenzie sent the plaintiff a draft decision proposing a reprimand and paid administrative leave. The plaintiff, however, would not accept a reprimand. Thereafter, MacKenzie concluded his [250]*250investigation and, on July 24, 1998, terminated the plaintiff’s employment on the basis that his actions were affecting the safe operations of the fire department, i.e., that the plaintiff had built a distrust among his fellow firefighters.

The plaintiff thereafter discussed his firing with The Recorder, the Greenfield newspaper. He commented on the reasons for his decision to file suit against Creigle and indicated that the suit caused animosity towards him by the fire department.

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Bluebook (online)
825 N.E.2d 559, 63 Mass. App. Ct. 246, 22 I.E.R. Cas. (BNA) 1274, 2005 Mass. App. LEXIS 362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wynne-v-creigle-massappct-2005.