Mark Thomas v. Cornelius J. Harrington, a/k/a Neil Harrington

This appeal arises out of an

alleged conspiracy to terminate plaintiff-appellant Mark Thomas

from his position as an officer at the Salisbury Police Department

("SPD"). In 2010, Cornelius Harrington, the Salisbury town

manager, hired Robert St. Pierre to investigate allegations of

misconduct by the then-police chief, David L'Esperance. During

the investigation, St. Pierre also uncovered evidence of alleged

wrongdoing by Thomas, resulting in a follow-up investigation.

Harrington terminated Thomas from his employment based on that

second investigation, but an arbitrator later reversed that

decision. Nevertheless, Thomas retired soon after and alleged,

inter alia, that Harrington and St. Pierre conspired against him.

He further alleged that Harrington violated the Massachusetts

Civil Rights Act ("MCRA"), Mass. Gen. Laws ch. 12 §§ 11H, 11I, by

depriving him of a protected property right -- namely, his

continued employment with the SPD.

Thomas has offered little evidence beyond bald

speculation for the existence of a conspiracy. Moreover, he has

not shown that his constitutional rights were interfered with by

"threats, intimidation, or coercion," as required by the MCRA.

Accordingly, and for the following reasons, we affirm the district

court's grant of summary judgment.

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I. Factual Background

In April 2006, Harrington hired David L'Esperance as

Salisbury's new police chief. Soon after L'Esperance was hired,

he promoted Thomas to detective and eventually designated him as

Chief of Detectives,1 decisions which Thomas allege created

substantial jealousy among other SPD officers.

In autumn 2010, two SPD officers made allegations of

misconduct against L'Esperance. The allegations reached

Harrington who, on advice of counsel, placed L'Esperance on

administrative leave. Harrington then reached out to St. Pierre,

a retired former Chief of Police in Salem, Massachusetts, and set

up a meeting to discuss the allegations.2 After this discussion,

on December 9, 2010, St. Pierre entered into a "Professional

Services Agreement" with Salisbury to investigate the allegations

against L'Esperance. Harrington did not obtain permission from

the town's Board of Selectmen prior to soliciting St. Pierre's

services, nor did the Board initially approve the contract.

However, Harrington was not required to first obtain the permission

of the Board of Selectmen before hiring an outside consultant on

1 It appears that L'Esperance's decision to designate Thomas

as "Chief of Detectives" was informal.

2 Harrington had been the mayor of Salem, Massachusetts for

seven years, during which time St. Pierre was the Salem police

chief.

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behalf of the town, and no member of the Board voiced an objection

to Harrington's decision to retain St. Pierre's services.

Before the investigation concluded, however, L'Esperance

resigned from active duty with the SPD. Thereafter, on January

24, 2011, St. Pierre tendered his investigative report to

Harrington, which concluded that L'Esperance had violated numerous

SPD rules. As relevant here, the report also disclosed allegations

of misconduct against Thomas. Among those allegations were that

Thomas (1) studied for the bar exam while on the job; (2) observed

but failed to report L'Esperance pilfering evidence at crime

scenes; and (3) fabricated portions of his resume for submission

to the FBI in connection with his application to attend a FBI

training program.

The Board of Selectmen held a meeting on January 24,

2011, at which the Board asked Harrington to contact St. Pierre to

further investigate "loose ends" from the L'Esperance report,

including the allegations against Thomas. The Board confirmed

that request during a February 24, 2011 public meeting. At the

end of that meeting, Thomas requested that SPD internal affairs

conduct the investigation into him instead, but this request was

denied.

Pursuant to the Board of Selectmen's instruction,

Harrington once again reached out to St. Pierre and asked that he

conduct the investigation into Thomas. St. Pierre initially

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replied that, because Thomas was not a "ranking officer," the SPD

could conduct the investigation internally. However, St. Pierre

eventually acceded to the request and entered into another

Professional Services Agreement on February 28, 2011. The thenacting

SPD chief, Kevin Sullivan, requested that Detective Steven

Sforza be permitted to help with the investigation. On May 24,

2011, Sullivan's successor as acting SPD chief, Richard Merrill,

placed Thomas on paid administrative leave during the pendency of

the investigation.

During the investigation into Thomas, St. Pierre

interviewed several municipal and SPD employees. One SPD officer,

Daniel McNeil, testified that during his recorded interview, St.

Pierre turned off the tape recorder and said something to the

effect of "[this] is not where I'm going with this or what I'm

looking for." McNeil understood this comment to mean that he was

"being obviously directed" by St. Pierre to give negative

information about Thomas.

Thomas separately contends that, during the L'Esperance

investigation, Sforza illegally taped a conversation with him

while at the SPD station in December 2010. This allegation came

to light while Sforza was assisting with the Thomas investigation

and, although Sforza denied the claim,3 he was removed from the

3 Sforza claimed that the tape recorder was "broken" during

the incident in question.

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Thomas investigation thereafter. Despite that removal, Thomas

alleges that Sforza continued communicating with St. Pierre, a

claim that appellees deny.

During their respective depositions, Harrington and St.

Pierre testified that Harrington's role in the Thomas

investigation was limited. For example, both testified that

Harrington did not provide St. Pierre with questions to ask

witnesses or tell St. Pierre or Sforza whom to interview. In

addition, Harrington was never given a copy of St. Pierre's

investigatory notes.4 Appellees claim that Harrington also did

not give St. Pierre advice on what "issues [St. Pierre] should

investigate." Thomas disputes that claim, pointing to several

communications between Harrington, St. Pierre, and town counsel

relating to the investigation. Although those communications

largely summarized the progress of St. Pierre's investigation, in

one email concerning Thomas's prior disciplinary history, town

counsel stated "[Thomas] may have just shot himself in the foot."

On August 1, 2011, St. Pierre delivered a draft copy of

his investigative report to Harrington. Harrington made several

changes to the report, and submitted it to the Board of Selectmen

4 St. Pierre provided Harrington with the transcript of a SPD

dispatcher, Kristine Harrison, to keep him "informed." Thomas

also points out that St. Pierre destroyed his investigative notes

from the L'Esperance and Thomas investigations. However, St.

Pierre testified that he was trained to destroy investigative notes

at the conclusion of an investigation.

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on September 28, 2011. That same day, Harrington sent a letter to

Thomas notifying him that a disciplinary hearing would be held

regarding the contents of the report. In addition, in response to

a Freedom of Information Act ("FOIA") request, Harrington

forwarded a copy of the report to a reporter with the Newburyport

Daily News, a local newspaper.5 The report was published the

following day. A copy was also anonymously forwarded to the

Massachusetts Board of Bar Overseers, an action Thomas attributes

to Harrington.6

The disciplinary hearing was held on December 15, 2011,

during which no witnesses testified, and the town simply entered

St. Pierre's report into the record. Harrington issued a decision

on February 8, 2012, upholding two of the four charges against

Thomas and dismissing the other two. Specifically, Harrington

found that Thomas had (1) studied for the bar exam while on duty;

and (2) falsified his resume in the application to the FBI. He

then terminated Thomas's employment with Salisbury. However, on

5 In his brief, Thomas disputes that the report was given to

the Newburyport Daily News pursuant to a FOIA request. However,

Harrington and St. Pierre explicitly referred to the FOIA request

in an e-mail exchange, and Thomas offers no evidence to rebut that

claim.

6 To that end, in an email dated September 21, 2011, Harrington

stated "I am assuming that we will also be giving a copy of the

[Thomas] report to the Board of Bar Overseers." In his deposition,

Harrington testified that he could not recall whether he had

provided the Thomas report to the Board of Bar Overseers.

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October 31, 2012, an arbitrator reversed the decision, finding

that there was insufficient evidence to support Thomas's

termination. The SPD reinstated Thomas in December 2012 and, in

accordance with the arbitrator's order, provided him with full

back pay.

Thomas testified that soon after his reinstatement, the

new permanent police chief, Thomas Fowler, told him that many SPD

officers "did not want him back." In addition, Fowler placed

certain conditions on Thomas's ability to moonlight as a practicing

attorney, expressing the need to avoid conflicts of interest.

Specifically, Fowler required that Thomas refrain from practicing

criminal defense and labor and employment law. He also required

Thomas to decline any cases involving either the SPD or Salisbury.

Emails from that time show that Fowler notified Harrington that he

was limiting Thomas's law practice, though the parties dispute

whether Harrington played an active role in Fowler's decisionmaking.

On March 24, 2014, Thomas sent Fowler a letter stating,

"I am in fear for my life at work and truly believe that many of

the officers and town employees will retaliate with grave

circumstances[.]" As a result of this letter, Fowler placed Thomas

on paid administrative leave. Approximately two weeks later,

Fowler received a letter from Thomas's psychologist stating that

Thomas was being treated for certain medical conditions and

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recommending that Thomas "take a leave of absence until further

notice." Fowler then converted Thomas's administrative leave to

long-term sick leave. Thomas never returned to active duty, and

eventually retired from the SPD on November 23, 2015.

II. Procedural Background

On September 29, 2014, Thomas filed this suit in the

District of Massachusetts against Harrington, St. Pierre,

Salisbury, and eight other current and former SPD officers. His

complaint included 12 counts, including claims under the United

States and Massachusetts Constitutions, Massachusetts Civil Rights

Act, Mass. Gen. Laws ch. 12, §§ 11H, 11I, Massachusetts

Whistleblower Statute, Mass. Gen. Laws ch. 149, § 185, and state

common law. On separate motions to dismiss, the district court

dismissed claims against all defendants except for Harrington, St.

Pierre, and Salisbury. As relevant here, the district court

allowed the following claims to proceed to discovery: retaliation

in violation of the First Amendment by Harrington and Salisbury

(Count 1), civil conspiracy by Harrington and St. Pierre (Count

5), and interference with Thomas's continued right to employment

in violation of the MCRA by Harrington (Count 7). In two separate

decisions,7 the district court granted defendants' motion for

7 In its memorandum and order dated September 30, 2017, the

district court granted summary judgment as to the sole remaining

federal claim. See Thomas v. Town of Salisbury, 277 F. Supp. 3d

161, 165 (D. Mass. 2017). The court then ordered a status

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summary judgment on all three remaining claims. This timely appeal

followed. On appeal, the parties stipulated to the dismissal of

Thomas's claims against Salisbury and Harrington as to Count 1.

III. Analysis

This court reviews grants of summary judgment de novo,

viewing the record and all reasonable inferences to be drawn

therefrom in the light most favorable to the non-moving party.

See Jakobiec v. Merrill Lynch Life Ins. Co., 711 F.3d 217, 223

(1st Cir. 2013). Summary judgment is warranted only if "there is

no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

When "a properly supported motion for summary judgment is made,

the adverse party must set forth specific facts showing that there

is a genuine issue for trial." Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 250 (1986) (internal quotations marks omitted). The

nonmoving party may not simply "rest upon mere allegation or

denials of his pleading," but instead must "present affirmative

evidence." Id. at 256-57.

conference for the parties to discuss whether the remaining state

law claims should be remanded to state court in light of Wilber v.

Curtis, 872 F.3d 15, 23 (1st Cir. 2017) ("[I]t can be an abuse of

discretion -- if no federal claim remains -- for a district court

to retain jurisdiction over a pendent state law claim when that

state law claim presents a substantial question of state law that

is better addressed by the state courts."). Thereafter, all

parties agreed that the district court could retain jurisdiction

and resolve the remaining claims. See Thomas v. Town of Salisbury,

284 F. Supp. 3d 66, 69 (D. Mass. 2018).

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A. Civil Conspiracy

Thomas first contends that the district court erred in

granting summary judgment on his conspiracy claim because there

was evidence "that Harrington and St. Pierre had a common plan to

deprive [him] of his . . . property right of employment, . . . and

took affirmative steps to achieve the desired result." He argues

that the district court failed to consider evidence that, viewed

in its totality, would permit a jury to infer the existence of a

conspiracy. He primarily relies on: (1) the existence of

Harrington and St. Pierre's prior work relationship; (2)

Harrington's alleged control over the investigative process, as

demonstrated through communications between him and St. Pierre;

and (3) alleged irregularities that arose during St. Pierre's

investigation.

In Massachusetts, civil conspiracy may take the form of

"'concerted action,' whereby liability is imposed on one

individual for the tort of another."8 Kurker v. Hill, 689 N.E.2d

833, 836 (Mass. App. Ct. 1998). "Because it is vicarious

liability, this type of civil conspiracy requires an underlying

8 Massachusetts also recognizes another form of civil

conspiracy where "defendants, acting in unison, had some peculiar

power of coercion over plaintiff that they would not have had if

they had been acting independently." Aetna Cas. Sur. Co. v. P&B

Autobody, 43 F.3d 1546, 1563 (1st Cir. 1994) (internal quotation

marks and citation omitted). However, because Thomas's briefs

explicitly rely on the "concerted action" theory of conspiracy, we

need not address this alternative form of conspiracy.

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tort [and t]he conspiracy consists in agreeing to, or assisting

in, this underlying tort." Taylor v. Am. Chemistry Council, 576

F.3d 16, 35 (1st Cir. 2009) (citations omitted). To prove a

"concerted action" conspiracy, a plaintiff must show that

defendants either (1) acted "in concert with or pursuant to a

common design with" the tortfeasor or (2) "gave substantial

assistance to" the tortfeasor's conduct.9 Kyte v. Phillip Morris

Inc., 556 N.E.2d 1025, 1027 (Mass. 1990); see also Taylor, 576

F.3d at 35 ("Massachusetts courts have recognized two theories of

liability under [Restatement (Second of Torts)] section 876: (1)

'concert of action,' and (2) 'substantial assistance' or 'aiding

and abetting.'").

Under the "common design" theory, a plaintiff must show

"first, a common design or an agreement, although not necessarily

express, between two or more persons to do a wrongful act and,

second, proof of some tortious act in furtherance of the

agreement." Aetna Cas. Sur. Co. v. P&B Autobody, 43 F.3d 1546,

1564 (1st Cir. 1994). "[A]n inference of an implied agreement

[can] properly be drawn from the conduct of two or more parties."

Kyte, 556 N.E.2d at 1028.

9 Thomas appears to mistakenly conflate these two

alternatives, treating them as necessary elements of "concerted

action" liability.

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By contrast, under the "substantial assistance" theory,

"a person may be liable in tort if he 'knows that the . . . conduct

[of another person] constitutes a breach of duty and gives

substantial assistance or encouragement to the other so to conduct

himself.'" Kurker, 689 N.E.2d at 837 (quoting Restatement (Second)

of Torts § 876(b) (1977)) (alterations in original); see also Baker

v. Wilmer Cutler Pickering Hale & Dorr LLP, 81 N.E.3d 782, 793

(Mass. App. Ct. 2017) ("The claim for civil conspiracy . . .

requires a showing that the defendants (1) knew that the conduct

of [others] constituted a breach of fiduciary duty and (2)

substantially assisted in or encouraged that conduct."). "Key to

this cause of action is a defendant's substantial assistance,

[given] with the knowledge that such assistance is contributing to

a common tortious plan." Kurker, 689 N.E.2d at 837. Moreover,

liability under this theory only applies to "assistance or

encouragement that is a 'substantial factor in causing the

resulting tort.'" Taylor, 576 F.3d at 35 (quoting Restatement

(Second) of Torts § 876 cmt. d.). In addition, the plaintiff must

also establish that the defendant had an "unlawful intent,"

consisting of both "knowledge that the other's conduct is

tortious[] and an intent to substantially assist or encourage that

conduct." Id.; see also Kyte, 556 N.E.2d at 1028 ("Evidence of

the defendant's knowledge of its substantial, supporting role in

an unlawful enterprise is required."). Merely showing the

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defendant's "general awareness" that their ostensible coconspirator

is engaged in tortious acts is insufficient. Kyte,

556 N.E.2d at 1028. The plaintiff need not, however, provide

evidence of an agreement between the defendant and the tortfeasor.

Taylor, 576 F.3d at 35-36.

Thomas's argument fails under either theory. With

respect to the "common design" theory, the evidence on which Thomas

relies falls well short of supporting an inference of an agreement

between Harrington and St. Pierre to terminate his employment.

For example, Thomas notes that Harrington, without the Board of

Selectmen's prior knowledge,10 solicited St. Pierre to conduct the

L'Esperance investigation. From that and subsequent

communications between the two, he infers that Harrington

controlled the course of the investigation, including its eventual

discovery of evidence against Thomas. While the record contains

communications between Harrington and St. Pierre, they only

demonstrate that both men believed that there was good cause to

terminate Thomas's employment.11 There is no suggestion that

Harrington controlled or otherwise directed St. Pierre's work. In

addition, while such communications show that Harrington was

10 In any event, the Board of Selectmen ultimately approved

the investigation into Thomas.

11 Notably, Thomas does not dispute that defendants had cause

to investigate him.

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"generally aware[]" of the investigation's progress, they do not

rise to the level necessary to impose liability under the common

design theory. Kyte, 556 N.E.2d at 1028; cf. Aetna Cas. Sur. Co.,

43 F.3d at 1564-65 (reasonable to infer concerted action from

repeated pattern of misstatements).

Thomas's argument that St. Pierre provided "substantial

assistance" to tortious acts against him is equally unavailing.

Thomas emphasizes that during the investigations into himself and

L'Esperance, St. Pierre attempted to unduly "influence" the

testimony of SPD officers.12 Even assuming that Harrington sought

to remove Thomas from the SPD prior to the investigations,13 there

is no evidence from which to infer that St. Pierre was aware of

that wrongful purpose. See Taylor, 576 F.3d at 35 (requiring,

inter alia, "knowledge that the other's conduct is tortious").

The evidence only shows that St. Pierre was retained by the Board

of Selectmen to investigate Thomas and that he communicated with

Harrington, the town manager, during that investigation. While,

as the district court noted, Harrington may have encouraged St.

12 Thomas alleges that Sforza continued to participate in the

Thomas investigation despite being removed. However, he fails to

connect Sforza's purported wrongful involvement to either

Harrington or St. Pierre.

13 As discussed earlier, a "concerted effort" conspiracy

requires an underlying tortious act. See Taylor, 576 F.3d at 35.

Although Thomas does not explicitly identify a tortious act,

Harrington's decision to terminate Thomas is the only plausible

candidate.

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Pierre to "dig deep" for facts against Thomas, Thomas v. Town of

Salisbury, 284 F. Supp. 3d 66, 79 (D. Mass. 2018), that alone is

insufficient to support a finding that St. Pierre was aware of

Harrington's alleged tortious purpose. Cf. Grant v. John Hancock

Mut. Life. Ins. Co., 183 F. Supp. 2d 344, 363-64 (D. Mass. 2002)

(granting summary judgment on concerted action conspiracy on the

reasoning that "[b]ecause a conspiracy requires an agreement to

commit a wrongful act, none can exist where an alleged participant

lacks knowledge that a wrongful act is being perpetrated[]").

In short, there is insufficient evidence for a

reasonable jury to infer the existence of a conspiracy between

Harrington and St. Pierre. Accordingly, we affirm the district

court's grant of summary judgment on that claim.

B. Massachusetts Civil Rights Act

Thomas also contends that the district court erred in

dismissing his MCRA claim against Harrington.14 As noted, the MCRA

provides a right of action to any person whose exercise or

enjoyment of rights secured by the federal or state constitutions

or laws has been interfered with by "threats, intimidation or

coercion." Mass. Gen. Laws ch. 12, §§ 11H, 11I. A "threat" means

"the intentional exertion of pressure to make another fearful or

apprehensive of injury or harm"; "intimidation" means "putting in

14 The MCRA claim is not brought against St. Pierre.

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fear for the purpose of compelling or deterring conduct"; and

"coercion" means "the application to another of such force, either

physical or moral, as to constrain him to do against his will

something he would not otherwise have done." Planned Parenthood

League of Mass., Inc. v. Blake, 631 N.E.2d 985, 990 (Mass. 1994).

"[T]he MCRA contemplates a two-part sequence: [liability may be

found where] (1) the defendant threatens, intimidates, or coerces

the plaintiff, in order to (2) cause the plaintiff to give up

something that [she] has the constitutional right to do." Goddard

v. Kelley, 629 F. Supp. 2d 115, 128 (D. Mass. 2009).

Here, the parties do not dispute that Thomas's continued

employment with the SPD constituted a constitutionally protected

property interest.15 Accordingly, the only question with respect

to the MCRA claim is whether Harrington engaged in "threats,

intimidation, or coercion."

It is rare for a MCRA claim to involve no physical threat

of harm. Although "purely economic pressures may constitute

actionable coercion under the MCRA," "the exception for claims

based on non-physical coercion remains a narrow one." Nolan v.

CN8, 656 F.3d 71, 77-78 (1st Cir. 2011) (quotation marks and

citations omitted). Massachusetts courts have required "a pattern

15 It appears that Thomas is asserting a procedural due process

claim. See Costa-Urena v. Segarra, 590 F.3d 18, 26 (1st Cir.

2009).

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of harassment and intimidation" to support a finding of nonphysical

coercion under the MCRA. See Howcroft v. City of Peabody,

747 N.E.2d 729, 746 (Mass. App. Ct. 2001) (finding repeated verbal

harassment, relocation of work site, and multiple failed attempts

to suspend plaintiff without pay and deprive him of benefits

supported a MCRA claim). However, "by itself, a threat to use

lawful means to reach an intended result is not actionable under

[the MCRA]." Buster v. George W. Moore, Inc., 783 N.E.2d 399, 411

(Mass. 2003).

Thomas contends that Harrington violated the MCRA by

forcing him to leave the SPD. In support, Thomas notes that

Harrington disseminated St. Pierre's investigatory report to a

local newspaper, possibly disclosed it to the Massachusetts Board

of Bar Overseers, and "steer[ed]" Fowler into forbidding him from

practicing law. Thomas has waived some of these points by failing

to raise or develop them below. See Thomas, 284 F. Supp. 3d at 78

& n.13. However, even taking these arguments at face value, the

events to which Thomas points fall well short of the MCRA's

coercion requirement. First, as the district court noted, the

dissemination to the local newspaper was in response to a FOIA

request. Id. Second, Thomas's allegation that Harrington

submitted the report to the Board of Bar Overseers suffers from

fatal flaws -- he does not show how, given the record here, this

filing could constitute "threats, coercion, or intimidation."

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And, his unsupported allegations are no more than that -- mere

allegations. And third, the record shows not only that Fowler

unilaterally implemented the policy restricting officers

moonlighting as practicing attorneys, but also that the policy was

narrowly tailored to ensure that officers avoided any conflicts of

interest.16 These events hardly evince a "pattern of harassment

and intimidation" geared towards coercing Thomas's resignation

from the SPD.17

Interpreted liberally, the evidence plausibly suggests

that Harrington wanted to see Thomas leave the SPD. However, as

we have stated, "the exception for [MCRA] claims based on nonphysical

coercion remains a narrow one," and it should not be

invoked unless the record "resembl[es] the sort of physical, moral,

or economic pressure that courts have found sufficient to support

16 The fact that the investigation caused Thomas to "strongly

contemplate[] leaving his employ," is of no avail where he does

not dispute that Harrington had cause for initiating the

investigation. This is true even though an arbitrator ultimately

reversed Harrington's decision to terminate his employment. See

Tracey v. Champeon, 79 N.E.3d 1111 (Table) (Mass. App. Ct. 2017)

(unpublished) (rejecting economic coercion theory under the MCRA

where plaintiff's suspension was reversed by an arbitrator).

17 Thomas further alleges that subsequent to the filing of the

instant suit, Harrington interfered with the sale of his Salisbury

home. Specifically, he notes that Harrington contacted the

Salisbury building inspector and directed him to investigate

whether Thomas's home violated any zoning laws. Thomas contends

that this prevented him from selling his home. However, because

that incident occurred well after Thomas retired, it cannot have

interfered with his right to continued employment with the SPD.

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a claim under this statute." Meuser v. Fed. Express Corp., 564

F.3d 507, 519 (1st Cir. 2009) (quotation marks and citation

omitted). This is not one of those circumstances. Therefore, we

affirm the district court's grant of summary judgment on Thomas's

MCRA claim against Harrington.18



18 Because the evidence fails to support a finding that

Harrington violated the MCRA, we need not address his qualified

immunity argument.

For the foregoing reasons, the district court's grant of

summary judgment is AFFIRMED.