Pierce v. Cotuit Fire District, et al

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Norman H. Stahl, Appellate Judge and Jeffrey R. Howard, Appellate Judge. Published. [13-1428]

Case: 13-1428

Document: 00116641420

Page: 1

Date Filed: 01/28/2014

Entry ID: 5797075

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 & LissRiordan, 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

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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

whistleblowing

the

First

Amendment

retaliation

in

and

42

violation

of

U.S.C.
the

§

1983,

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.
The
operation.

Cotuit

Fire

Facts

Department

is

a

relatively

small

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.

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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.
these times, Pierce directly supervised his wife.

Entry ID: 5797075

During

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

performance

from

participating

evaluations,

compensation.

or

in

his

promotions,

wife's
or

in

supervision,
setting

her

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

firefighter.

verbal

altercation

with

a

subordinate

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

Department.

a

new

"Familial

Relations

Policy"

for

the

Among other things, the policy forbade officers from

working regular shifts with or directly supervising their family
members.
legal

After the policy was circulated, Pierce and Jayne sought

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.
unopposed.

Campbell originally ran for re-election

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.

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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.
informed

the

Commission

that

Among other things, the letter
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

to

that

Pierce

supervised

his

wife

on

ten

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.

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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.

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On

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December

19,

2010,

Pierce

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submitted

a

"step

two"

less

a

month

after

Entry ID: 5797075

grievance

regarding the same matter.
On

May

8,

2011,

than

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.
scheduled

arbitration

The union consequently withdrew a

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 nonmoving party and resolving all reasonable inferences in that
party's favor.
2008).

Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir.

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.

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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.
v. Alexander, 391 F.3d 1, 16 (1st Cir. 2004).

Powell

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.
to

"discredit

Finally, the burden shifts back to the plaintiff
the

circumstantially

.

or

.

.

nondiscriminatory

directly,

by

adducing

reason,
evidence

either
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.

discriminatory

The

record

justification

identifies
for

each

a

legitimate
instance

"harassment" of Pierce following the election.

of

and

non-

Olsen's

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.

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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

Pierce's professional relationship with his wife.

concerns

about

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

("MWA"), Mass. Gen. Laws ch. 149, § 185 et seq.

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.

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Pierce's

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challenge

may

Date Filed: 01/28/2014

sound

under

185(b)(1) or section 185(b)(3) of the MWA.1

either

Entry ID: 5797075

section

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

subsequently

F.3d

63,

avoid

67

(1st

Cir.

liability

"by

2001).

The

proffering

nonretaliatory reason for the [adverse action]."

employer
a

may

legitimate,

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.
does

not

suggest

the

timing

was

purely

Yet the Board

coincidental:

by

simultaneously protesting both his and Jayne's treatment in the
same

professional

communication,

Pierce's

letter

brought

potential ethics violation back to the Board's attention.

his
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

Pierce's support of Wool during the spring election.

before

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
Harrison, 744 N.E.2d at 632.

against his own employer.
an

employee

may

bring

a

claim

against

a

However,

supervisor

if

he

demonstrates that the supervisor acted "out of malevolence, that

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Case: 13-1428

Document: 00116641420

is, with actual malice."

Page: 20

Date Filed: 01/28/2014

Entry ID: 5797075

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
"probab[le]

interference";
rather

than

affirmatively suggests
from

a

desire

interests."

to

that

the

inference

possib[le]";

and

of

that

malice

the

is

evidence

the supervisor's actions "were not derived

advance

the

employer's

legitimate

business

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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Case: 13-1428

Document: 00116641420

probable

malice

was

Page: 21

the

Date Filed: 01/28/2014

controlling

factor

Entry ID: 5797075

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.

-21-