Mass Firefighter Loses Retaliation Suit

A Massachusetts firefighter who claims he was disciplined in retaliation for his political support of a candidate running for fire board, and for reporting his own ethics violation, has lost his federal court law suit.

David Pierce was a captain with the Cotuit Fire Department. According to the court:

• As Captain of the Department, Pierce served directly over his wife, Jayne Pierce, who was a full-time firefighter through the majority of their relationship. Prior to his marriage to Jayne, Pierce had been married to Donna Pierce (now Donna Fenner), who had been a call firefighter at the time, but had subsequently joined the Department as a full-time firefighter and married fellow firefighter Scott Fenner. Fenner’s own ex-wife, Amy Griffin Fenner, is also a call firefighter. There was testimony that this pattern of intra-departmental relationships made the Cotuit Fire Department the subject of mockery among neighboring departments, frequently to the consternation of the Department’s own employees.

• In March 2008, Pierce wrote the Massachusetts State Ethics Commission (“Ethics Commission”) to request an advisory opinion regarding any potential conflict of interest arising out of his professional relationship with Jayne. On March 31, 2008, the Ethics Commission advised him that the state ethics law, Mass. Gen. Laws ch. 268A, § 19, prohibited him from participating in his wife’s supervision, performance evaluations, or promotions, or in setting her compensation. The Commission recommended that he write the Board of Fire Commissioners to disclose the situation and obtain a formal exemption, but Pierce chose not to pursue the matter.

• In March of 2009 … Fire Chief [Christopher Olsen] … circulated a new “Familial Relations Policy” for the Department. Among other things, the policy forbade officers from working regular shifts with or directly supervising their family members. After the policy was circulated, Pierce and Jayne sought legal counsel regarding the policy’s repercussions for their careers.

• In August of 2009 … Olsen initiated efforts to investigate an allegedly “hostile environment” in the Cotuit Fire Department. Five full-time firefighters submitted complaints of harassment or intimidation by the Pierces when they were on duty.

Captain Pierce allegedly had some occasional involvement with supervising his wife, and participated in the unsuccessful campaign of a candidate for fire board. In October 2009, Captain Pierce sent a letter to the fire board alleging that Fire Chief Christopher Olsen:

• reneged on his promise to make Pierce “Deputy Chief,” [took] away Pierce’s office and made him return his Department-issued cell phone, called Pierce and his wife “greedy” for volunteering for overtime, and publicly lashed out at Pierce and two other firefighters for failing to prepare for a memorial ceremony.

In June,2010 Chief Olsen suspended Captain Pierce for violating state ethics laws. On November 29, 2010, following a hearing he was suspended without pay prompting the suit to be filed on December 3, 2010.

• Pierce sued the Department and the Board for political discrimination in violation of the First Amendment and for retaliation in violation of the Massachusetts Whistleblower Act. He sued Olsen, Campbell, Mycock, and Field for political discrimination and retaliation in violation of 42 U.S.C. § 1983 and for tortious interference with contractual relations in violation of the common law.

Captain Pierce was formally terminated from the Cotuit Fire Department on April 20, 2011.

• On May 8, 2011, less than a month after Pierce’s termination, the Board entered into a settlement agreement with the firefighter’s union that permitted Pierce to return to work as a full-time firefighter, while restricting Pierce’s ability to work on any shift with his wife. The union consequently withdrew a scheduled arbitration regarding Pierce’s grievances. Pierce objected to the settlement, but eventually returned to work as a firefighter.

The trial court ruled in favor of the department, and Captain Pierce appealed to the US First Circuit Court of Appeals. In the court’s own words:

• Pierce has offered no evidence that the Commissioners had any political motivations in their treatment of him. … He consequently fails to make even a prima facie showing of political discrimination against the Board.

• Pierce further contends that the Board’s instigation of an ethics investigation against him and its ultimate termination of his employment violated the Massachusetts Whistleblower Act… . Pierce suggests that the Board retaliated against him for his October 2, 2009 letter objecting to Olsen’s harassment or for his June 24, 2010 letter to the Ethics Commission objecting to the Board’s refusal to grant him an exemption.… The record fully supports the Board’s claim that its ethics investigation, and its subsequent termination of Pierce, responded to genuine and timely concerns about Pierce’s professional conduct as Captain.
  

• Finally…  Pierce claims that Chief Olsen and Commissioners Campbell, Mycock, and Field tortiously interfered with his employment contract with the Cotuit Fire Department. … Because a defendant may tortiously interfere only with a plaintiff’s contract with a third party, an employee cannot bring a claim of tortious interference with an employment contract against his own employer. … However, an employee may bring a claim against a supervisor if he demonstrates that the supervisor acted “out of malevolence, that is, with actual malice.” … In this case, Commissioners Campbell, Mycock, and Field were all signatories to Pierce’s employment contract with the Cotuit Fire Department. It is thus questionable whether they can be viewed as “supervisors” so as to create liability under the common law. Even assuming that all four defendants are “supervisors” liable for tortious interference, however, Pierce has failed to establish that any of them acted with “actual malice.”

With that, the First Circuit affirmed the district court’s grant of summary judgment.

The case points out the importance of a fire department being able to articulate legitimate business-related reasons for making personnel decisions. Allegations by an employee claiming to be a “victim” are not uncommon, and are often accompanied by threats of litigation. It is a situation that can tend to intimidate leaders making it difficult to properly manage complex problems. The ruling in Pierce demonstrates the willingness of courts to accept legitimate business-related explanations in the face of counter-allegations by personnel that might otherwise appear just as plausible.

Here is a copy of the ruling. Pierce v Cotuit