Filed: Jan. 28, 2014
Latest Update: Mar. 02, 2020
Summary: Board of Fire Commissioners of the Cotuit Fire District, Donald, Campbell, Ronald Mycock and Peter Field, Fire Commissioners of the, Cotuit Fire Department, and Christopher Olsen, Fire Chief.his and Jayne's joint employment in the Department.Board nor Olsen survives the Mt. Healthy framework.
United States Court of Appeals
For the First Circuit
No. 13-1428
DAVID PIERCE,
Plaintiff, Appellant,
v.
COTUIT FIRE DISTRICT; BOARD OF FIRE COMMISSIONERS OF THE
COTUIT FIRE DISTRICT; DONALD CAMPBELL, Fire Commissioner of the
Cotuit Fire Department, RONALD MYCOCK, Fire Commissioner of the
Cotuit Fire Department; PETER FIELD, Fire Commissioner of the
Cotuit Fire Department; CHRISTOPHER OLSEN, Fire Chief,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl and Howard, Circuit Judges.
Harold Lichten, with whom Sara Smolik and Lichten & Liss-
Riordan, P.C. were on brief, for appellant.
Marielise Kelly, with whom Edward R. Gargiulo and Gargiulo/
Rudnick, LLP were on brief, for appellees Cotuit Fire District,
Board of Fire Commissioners of the Cotuit Fire District, Donald
Campbell, Ronald Mycock and Peter Field, Fire Commissioners of the
Cotuit Fire Department, and Christopher Olsen, Fire Chief.
January 28, 2014
HOWARD, Circuit Judge. Plaintiff-appellant David Pierce,
former Captain of the Cotuit, Massachusetts Fire Department,
brought a complaint against the Department, the Fire Chief, and the
Board of Fire Commissioners, alleging political discrimination in
violation of the First Amendment and 42 U.S.C. § 1983,
whistleblowing retaliation in violation of the Massachusetts
Whistleblower Act, and tortious interference with contractual
relations. The district court entered summary judgment in favor of
the defendants on all counts. Because we conclude that the
defendants have presented legitimate, business-related grounds for
their employment decisions and because Pierce has failed to
demonstrate that the proffered explanations are pretextual, we
affirm.
I. Facts
The Cotuit Fire Department is a relatively small
operation. In rough order of seniority, the Department has five
"call" firefighters, six full-time firefighters, three Lieutenants,
one Captain, and one Fire Chief. The Department also has a
three-member Board of Fire Commissioners ("the Board"), which is in
charge of overseeing, appointing, and terminating personnel. At
the time of the relevant events, the Captain of the Cotuit Fire
Department was David Pierce. Since March of 2008, the Fire Chief
has been defendant Christopher Olsen. Until November of 2009, the
Fire Commissioners were defendants Donald Campbell, Ronald Mycock,
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and Peter Field. In November, Donald Campbell resigned and was
replaced by Brenda Nailor.
A. Inter-Departmental Relationships
In the decades leading up to the fall of 2009, the Cotuit
Fire Department was the home of some fairly complicated personal
histories. 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. Since the 1990s, firefighters and officers in the
department had discussed implementing a stricter policy regarding
domestic relationships, though no early discussions materialized
into a new policy.
Following their marriage, David and Jayne Pierce were
never scheduled to work the same regular 24-hour shift. They did,
however, work together with some regularity when they responded to
emergency calls or when one of them volunteered to substitute for
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an unavailable firefighter on the other's regular shift. During
these times, Pierce directly supervised his wife. 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.
Following his communication with the Ethics Commission,
Pierce became directly involved in his wife's employment on at
least three occasions. First, in the fall of 2008, Pierce advised
Chief Olsen against imposing a probationary period on the tenure of
new Lieutenants at a time when Jayne was about to become a
Lieutenant. Second, Pierce advised Olsen that a new Emergency
Medical Services position should go to a trained paramedic when
Jayne was the only trained paramedic in the Department. Finally,
in April of 2009, Pierce assisted in a disciplinary investigation
involving Jayne's verbal altercation with a subordinate
firefighter. Although Pierce had a right to recuse himself and
although Jayne specifically requested that he do so, Pierce chose
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to participate after Olsen indicated that he desired Pierce's input
in the hearing. Pierce recommended that Jayne receive a counseling
session as punishment. However, Olsen ultimately decided to demote
Jayne from Lieutenant to firefighter.
In March of 2009, roughly a year after his appointment as
Fire Chief and just before Jayne's disciplinary investigation,
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, in response to Jayne's objections to
her demotion from Lieutenant, 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.
B. The Wool Campaign
In April 2009, Donald Campbell's seat on the Board came
up for re-election. Campbell originally ran for re-election
unopposed. Concerned about a potential conflict of interest
created by Campbell's status as an active union firefighter,
however, Pierce actively encouraged William Wool to enter the race
as a write-in candidate.
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At Pierce's request, Commissioner Mycock agreed to meet
with Wool to discuss Wool's interest in serving on the Board.
Mycock did not discourage Wool from running and, while he did not
take a position on Wool's candidacy, he agreed that Campbell's
union ties created a conflict of interest. Mycock's concerns were
echoed by Commissioner Field, although Field did not take a public
position on Wool's campaign either. Mycock did have Olsen advise
Pierce not to campaign for Wool while on duty or to use Department
resources in his campaigning. Pierce complied with both requests.
Throughout the month of May, Pierce campaigned for Wool
by handing out flyers, talking to acquaintances about the election,
and displaying a campaign sign for Wool on election day. On one
occasion, Pierce was off-duty and campaigning for Wool outside the
town Post Office when Olsen drove by and indicated that he wanted
Pierce's assistance at an emergency call. Reporting to emergency
calls is voluntary for off-duty firefighters, and Pierce declined
Olsen's request. The next day, Olsen told Pierce that he wished
that Pierce had responded to the call. Olsen also mentioned that
he was "concerned" about "losing Campbell" as a Commissioner during
the upcoming election.
Campbell ultimately won reelection. Following the
election, according to Pierce's testimony, Olsen told Pierce that
he was "not happy" that Pierce had campaigned for Wool. Olsen also
opined that it was "inappropriate" for Pierce to have campaigned
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outside the fire station on a separate occasion. Campbell stopped
by Pierce's office during the same period, ostensibly to assure
Pierce that he had no hard feelings, but he ultimately expressed
disappointment and frustration with Pierce over his support for
Wool.
C. Retaliation and Ethics Complaints
On October 2, 2009, four months following his campaigning
activity, Pierce sent a letter to the Board claiming that Olsen had
been retaliating against him ever since the election due to his
support of Wool. Pierce cited a variety of forms of harassment
starting in the weeks following the election. He reported that
Olsen had reneged on his promise to make Pierce "Deputy Chief,"
taken 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. While Olsen did not respond to Pierce's charges at the
time, he later contended that he needed to re-purpose Pierce's
office into new sleeping quarters due to space constraints and that
it would be more efficient to turn Pierce's work cellphone into a
department-wide phone for on-duty officers.
The Board replied to Pierce with a letter indicating that
his complaint did not conform to the grievance process prescribed
by the Department's collective bargaining agreement and took no
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further actions on his charges. Because Pierce's letter criticized
Olsen's treatment of both Pierce and his wife, however, the Board
did take the occasion to remind Pierce of his obligations under the
Massachusetts ethics laws and to suggest that Pierce contact the
Ethics Commission for an advisory opinion regarding his
professional relationship with Jayne.
On November 20, 2009, the Board sent its own letter to
the Ethics Commission to request that the Commission conduct an
evaluation of Pierce's potential conflict of interest, copying
Pierce on the communication. Among other things, the letter
informed the Commission that Pierce had "regular supervisory
authority over and day to day supervision of his wife," and that
Pierce had participated in a disciplinary matter involving Jayne in
April. The letter was signed by Mycock and Field, but not by
Campbell, who had resigned the previous day. While the Ethics
Commission considered the Board's letter, Pierce wrote the Board to
request a formal exemption under Mass. Gen. Laws ch. 268A, § 19 for
his and Jayne's joint employment in the Department. The letter
estimated that Pierce supervised his wife on ten to twelve
occasions per year. The Board declined to take up Pierce's request
while it awaited a response from the Ethics Commission.
On June 17, 2010, the Ethics Commission sent Pierce a
confidential letter informing him that he appeared to be in
violation of Mass. Gen. Laws ch. 268A, § 19. To remedy the
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situation, the Commission suggested that Pierce should obtain an
exemption, restructure his position so as to have no day-to-day
supervision of Jayne, or either he or Jayne could resign. On June
24, 2010, Pierce replied to the Ethics Commission to clarify that
he did not have "day-to-day active supervision" of his wife. In
the same letter, on which Olsen was copied, Pierce suggested that
the Board had refused to grant him an exemption in retaliation for
certain unrelated claims that he and Jayne were pursuing against
the Town of Cotuit. The Board responded directly to the Ethics
Commission, again raising the issue of Pierce's supervision of
Jayne and his involvement in her discipline and promotion.
On June 18, 2010, presumably without knowledge of the
letter Pierce had received from the Ethics Commission the previous
day, Olsen notified Pierce of his intent to suspend him with pay.
Olsen attributed his decision to an independent conclusion reached
by the Board's counsel that Pierce was violating the state ethics
law. He instituted the suspension following a hearing later that
month. Subsequently, Olsen and the Board became aware of the
Commission's June 17, 2010 letter. On November 29, 2010, after a
hearing at which the letter was discussed, Olsen suspended Pierce
without pay. Olsen again explained that his disciplinary action
responded to Pierce's violations of Mass. Gen. Laws ch. 268A.
On January 11, 2011, the Commission sent Pierce a final
confidential letter, informing him that the Commission had found
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"facts sufficient to find reasonable cause to believe" that Pierce
was violating the ethics law. Two weeks later, the Commission
responded directly to the Board regarding its November 20, 2009
complaint against Pierce. While noting that its "decision does not
necessarily mean that your complaint was without merit," the
Commission determined that the matter "does not warrant further
investigation or the imposition of formal sanctions at this time."
On April 20, 2011, despite the Commission's failure to
impose sanctions, the Board chose to terminate Pierce's employment.
D. Administrative and Legal Actions
On December 3, 2010, Pierce initiated this action against
the Cotuit Fire Department, the Board, and Chief Olsen and
Commissioners Campbell, Mycock, and Field in their individual
capacities. 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.
That same day, Pierce also initiated a "step one"
grievance against Olsen regarding his suspension without pay under
the Cotuit Fire Department's Collective Bargaining Agreement. On
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December 19, 2010, Pierce submitted a "step two" grievance
regarding the same matter.
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.
After the defendants moved for summary judgment, the
district court entered judgment in their favor on all claims.
Pierce now appeals.
II. Discussion
We review a district court's grant of summary judgment de
novo, construing the record in the light most favorable to the non-
moving party and resolving all reasonable inferences in that
party's favor. Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir.
2008). We cannot affirm if the record is sufficiently open-ended
to permit a rational factfinder to resolve a material factual
dispute in favor of either side.
Id. at 40; Maymí v. P.R. Ports
Auth.,
515 F.3d 20, 25 (1st Cir. 2008). Inversely, we must affirm
if the record reveals no genuine issue as to any material fact and
the movant is entitled to judgment as a matter of law. Vineberg v.
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Bissonnette, 548 F.3d 50, 55 (1st Cir. 2008); Fed. R. Civ. P.
56(c). We are not limited to the district court's rationale, but
may affirm on any grounds made manifest by the record. Jones v.
Secord,
684 F.3d 1, 5 (1st Cir. 2012).
A. First Amendment Retaliation
Pierce claims that Olsen and the Board's decisions to
suspend and ultimately terminate him as Captain, as well as Olsen's
pattern of hostile conduct in the summer of 2009, constitute
retaliation for his political support for Wool as Fire
Commissioner.
It is well established that political discrimination by
a state employer, including retaliation for a contrary political
opinion, violates the freedom of belief and association protected
by the First Amendment. See Padilla-Garcia v. Guillermo Rodriguez,
212 F.3d 69, 74 (1st Cir. 2000). As a core constitutional
violation, employment retaliation for protected political and
expressive activity also creates individual liability under 42
U.S.C. § 1983, subject to the rules of qualified immunity. Powell
v. Alexander,
391 F.3d 1, 16 (1st Cir. 2004). To qualify for
relief under the First Amendment or under § 1983, an employee's
claim must survive the burden-shifting analysis enunciated in Mt.
Healthy City School District Board of Education v. Doyle,
429 U.S.
274 (1977). See
Powell, 391 F.3d at 17. First, the employee must
demonstrate that he engaged in protected First Amendment conduct
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and that this conduct "was a substantial or motivating factor" in
his employer's adverse employment action. Welch v. Ciampa, 542
F.3d 927, 936 (1st Cir. 2008); see also Mt.
Healthy, 429 U.S. at
287. An employer may subsequently avoid liability by establishing
that it "would have taken the same action regardless of the
plaintiff's political beliefs or protected conduct."
Welch, 542
F.3d at 936;
Padilla-Garcia, 212 F.3d at 74; see also Mt.
Healthy,
429 U.S. at 287. Finally, the burden shifts back to the plaintiff
to "discredit the . . . nondiscriminatory reason, either
circumstantially or directly, by adducing evidence that
discrimination was more likely than not a motivating factor."
Padilla-Garcia, 212 F.3d at 77.
Based on the record, Pierce's claim against neither the
Board nor Olsen survives the Mt. Healthy framework. With regard to
the Board, Pierce has offered no evidence that the Commissioners
had any political motivations in their treatment of him. Pierce
has not suggested that either Mycock or Field opposed Wool for
Commissioner, and indeed the record reveals that both Commissioners
shared Pierce's concern that Campbell had an undesirable conflict
of interest. While a jury might be able to infer that Campbell
took issue with Pierce's opposition to his candidacy, Campbell
resigned from the Board before either Pierce's suspension or
termination took place. Even granting Pierce the inference that
Campbell may have been involved with drafting the Board's November
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10, 2009 letter to the Ethics Commission, that letter sought only
the Commission's opinion on Pierce's potential conflict of
interest. Pierce does not contend that Campbell influenced the
Board's decision to terminate Pierce over a year later. He
consequently fails to make even a prima facie showing of political
discrimination against the Board.
Pierce has adduced far more substantial evidence that
Olsen objected to Pierce's political support of Wool. Assuming
that Pierce has stated a prima facie case of political retaliation
against Olsen, however, Pierce's claim fails at the second Mt.
Healthy step. The record identifies a legitimate and non-
discriminatory justification for each instance of Olsen's
"harassment" of Pierce following the election. Olsen re-purposed
Pierce's office because the Department was tight on space. He took
back Pierce's cellphone because it was more efficient to make the
phone available to all on-duty officers. He failed to make Pierce
"Deputy Chief" because no such position had ever existed nor exists
now in the Department. He upbraided Pierce in connection with the
memorial ceremony because Pierce was unprepared for an official
duty, and included several other offending firefighters in his
reproach.
Pierce leans heavily on Olsen's decision to suspend him
without pay in the summer of 2010 even though less drastic options,
such as an immediate demotion, were available. Yet Olsen's
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decision is directly explained by his objections to Pierce's
ongoing ethics violation as Captain of the Department, and Pierce's
claims that this explanation is pretextual are purely speculative.
While Pierce repeatedly notes that Olsen could have chosen a less
extreme remedy, he does not deny that Olsen's actions were within
the reasonable range of responses to Olsen's concerns about
Pierce's professional relationship with his wife. Nor does Pierce
offer any evidence that such concerns would not have justified
Olsen's actions in the regular course of conduct--for example,
evidence that other Fire Chiefs treated similarly-situated officers
more leniently.
The district court properly entered summary judgment in
favor of the defendants on Pierce's First Amendment claim.
B. Whistleblower Retaliation
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
("MWA"), Mass. Gen. Laws ch. 149, § 185 et seq. 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.
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Pierce's challenge may sound under either section
185(b)(1) or section 185(b)(3) of the MWA.1 Section 185(b)(1)
prohibits a state employer from retaliating against an employee who
"[d]iscloses, or threatens to disclose to a supervisor or to a
public body an activity, policy or practice of the employer . . .
that the employee reasonably believes is in violation of a law."
Mass. Gen. Laws ch. 149, § 185(b)(1). Section 185(b)(3) of the
statute prohibits an employer from retaliating against an employee
who "[o]bjects to, or refuses to participate in any activity,
policy or practice which the employee reasonably believes is in
violation of a law." Id. § 185(b)(3). To qualify for protection
under section 185(b)(1), but not under section 185(b)(3), an
employee must first "br[ing] the activity, policy or practice . .
. to the attention of a supervisor of the employee by written
notice and . . . afford[] the employer a reasonable opportunity to
correct the activity, policy or practice."
Id. § 185(c)(1).
While the two causes of action are quite distinct, a
plaintiff's burden of proof under the MWA closely parallels his
burden for First Amendment discrimination under Mt. Healthy. To
prevail on an MWA claim, an employee must show "that he engaged in
protected activity and that his participation in that activity
played a substantial or motivating part in the retaliatory action."
1
Because Pierce did not identify which provision of the MWA
underwrites his claim, we follow the district court in analyzing
both sections as the most plausible options.
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Welch, 542 F.3d at 943; see also Larch v. Mansfield Mun. Elec.
Dep't,
272 F.3d 63, 67 (1st Cir. 2001). The employer may
subsequently avoid liability "by proffering a legitimate,
nonretaliatory reason for the [adverse action]." Higgins v. New
Balance Athletic Shoe, Inc.,
194 F.3d 252, 262 (1st Cir. 1999).
The burden then shifts back to the employee to "adduce some
significantly probative evidence showing both that the proffered
reason is pretextual and that a retaliatory animus sparked his
dismissal."
Id.
The parties spend some time debating whether Chief Olsen
qualifies as an "employer" or merely a "supervisor" under the MWA,
and subsequently whether Pierce's October 2, 2009 letter to the
Board disclosed an unlawful "practice of the employer" under
section 185(b)(1).2 The parties also debate whether Pierce's June
24, 2010 letter to the Ethics Commission, directly accusing the
Board of retaliation for an unrelated legal dispute, satisfied
section 185(c)(1)'s notification requirement.
2
The Massachusetts statute defines the "Employer" subject to
its provisions as "the commonwealth, and its agencies or political
subdivisions, including, but not limited to, cities, towns,
counties and regional school districts, or any authority,
commission, board or instrumentality thereof." Mass. Gen. Laws ch.
149, § 185(a)(2). The statute defines a "Supervisor" separately,
as "any individual to whom an employer has given the authority to
direct and control the work performance of the affected employee,
[or] who has authority to take corrective action regarding the
violation of the law, rule or regulation of which the employee
complains." Id. § 185(a)(4).
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We do not reach these issues, because, as with his First
Amendment challenge, Pierce's claim under the MWA fails at the
second step of the burden-shifting framework. Even assuming that
Pierce could establish a prima facie case of retaliation by the
Board based on either his October 2, 2009 or his June 24, 2010
letter, the Board has offered an independent and legitimate motive
for its adverse employment actions: its objections to Pierce's
potential violations of Mass. Gen. Laws ch. 268A, § 19. Pierce
emphasizes the suspicious proximity between his October 2, 2009
complaint to the Board against Olsen and the Board's prompt
instigation of an ethics investigation against him. Yet the Board
does not suggest the timing was purely coincidental: by
simultaneously protesting both his and Jayne's treatment in the
same professional communication, Pierce's letter brought his
potential ethics violation back to the Board's attention. The
record corroborates that the months before Pierce's letter had
witnessed revitalized efforts to combat intra-departmental nepotism
at the Cotuit Fire Department, not least through Olsen's release of
an updated Familial Relations Policy that March--well before
Pierce's support of Wool during the spring election. Pierce's
letter also followed soon on the heels of Olsen's August 2009
investigation of a "hostile environment" at the Department, which
yielded complaints against the Pierces by nearly half of the
Department's employees. The record fully supports the Board's
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claim that its ethics investigation, and its subsequent termination
of Pierce, responded to genuine and timely concerns about Pierce's
professional conduct as Captain.
The district court properly entered summary judgment in
favor of the defendants on Pierce's MWA challenge.
C. Tortious Interference with Contractual Relations
Finally, in a pendent state claim, Pierce claims that
Chief Olsen and Commissioners Campbell, Mycock, and Field
tortiously interfered with his employment contract with the Cotuit
Fire Department.
To support a claim of tortious interference with
contractual relations, a plaintiff must prove that: "(1) he had a
contract with a third party; (2) the defendant knowingly interfered
with that contract . . . ; (3) the defendant's interference, in
addition to being intentional, was improper in motive or means; and
(4) the plaintiff was harmed by the defendant's actions."
O'Donnell v. Boggs, 611 F.3d 50, 54 (1st Cir. 2010) (quoting
Harrison v. NetCentric Corp.,
744 N.E.2d 622, 632 (Mass. 2001)).
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.
Harrison, 744 N.E.2d at 632. However,
an employee may bring a claim against a supervisor if he
demonstrates that the supervisor acted "out of malevolence, that
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is, with actual malice." Blackstone v. Cashman, 860 N.E.2d 7, 13
(Mass. 2007) (quoting Gram v. Liberty Mut. Ins. Co.,
429 N.E.2d 21,
24 (Mass. 1981)) (internal quotation marks and citations omitted);
see also
O'Donnell, 611 F.3d at 54 n.3. A showing of actual malice
requires "more than a showing of mere hostility." Zimmerman v.
Direct Fed. Credit Union,
262 F.3d 70, 76 (1st Cir. 2001). A
plaintiff must show that malice "was the controlling factor in the
supervisor's interference"; that the inference of malice is
"probab[le] rather than possib[le]"; and that the evidence
affirmatively suggests the supervisor's actions "were not derived
from a desire to advance the employer's legitimate business
interests."
Id. at 76-77.
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."
As discussed above, all of the named defendants had legitimate
business reasons for their adverse actions against Pierce--most
notably, their genuine concerns about the Department's violation of
the Massachusetts ethics laws. Pierce has not demonstrated that
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probable malice was the controlling factor behind the
Commissioners' or Olsen's employment decisions.
The district court properly entered summary judgments in
favor of the defendants on Pierce's tortious interference claim.
III. Conclusion
For the foregoing reasons, the district court's grant of
summary judgment is affirmed as to all claims.
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