Lavalette v. Cressman et al

Filing 35

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered denying 15 Plaintiff's Motion for Summary Judgment; granting in part (as to due process claim) and denying in part (as to First Amendment claims) 23 Motion for Summary Judgment (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
GARY LAVALETTE,
Plaintiff,
v.
DAVID CRESSMAN, Individually and
as Executive Administrator for
the Town of Dartmouth, and
TOWN OF DARTMOUTH,
Defendants.

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CIVIL ACTION NO.
11-10722-DPW

MEMORANDUM AND ORDER
March 26, 2013
The plaintiff Gary Lavallete contends that he was deprived
of due process when terminated from part-time employment with the
defendant Town of Dartmouth by the defendant Town Executive
Administrator David Cressman.

Lavalette argues he was entitled

to a hearing regarding the grounds for the termination and that
certain of the grounds involved retaliation for the exercise of
his First Amendment rights.

The parties have presented cross

motions for summary judgment.
After careful review of the record, I will grant summary
judgment to the defendants - and deny it to the plaintiff - on
the due process claim.

The record makes clear that the plaintiff

has not established the threshold factual predicate to this
claim; he did not request the hearing to which he was otherwise
entitled.

As to the First Amendment claim – which only the

defendant seeks to dispose of by summary judgment – the
relatively undeveloped record before me discloses genuine issues

of material fact regarding whether Lavalette was addressing
matters of public concern as to which he has comparatively robust
constitutional protections.
The defendant Executive Administrator Cressman confronted
the plaintiff in person with a letter of termination identifying
three bases.
immediate.

He told the plaintiff the termination was

The plaintiff concedes that he never in any words

asked for the hearing that is provided under the Town Charter.
The most that can be said on this record is that plaintiff asked
the defendant Cressman to hear his “side” and that Cressman
responded that he “would not change [his] mind.”
The right to a hearing found in § 6-9 of the Town of
Dartmouth Town Charter provides that an employee given, as
Lavalette was here, a written notice of the intent to remove and
a statement of the causes delivered in hand “[w]ithin five days
following delivery of such notice
hearing.”

. . . may request a public

Lavalette never made such a request.

While a more

humane and fair minded supervisor and employer might have taken
it upon himself to remind an employee he is terminating particularly one like Lavalette who had served the town for some
sixteen years - of the right to request a hearing at which he
could present his “side,” the Town Charter procedures do not
require such advice.

Plainly Cressman and Lavalette were in an

adversarial relationship once the termination was announced.
Lavalette could hardly rely upon Cressman for strategic advice.
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Cf. Herwins v. City of Revere, 163 F.3d 15, 20 (1st Cir. 1998).
His failure to seek the due process protection available, whether
considered a matter of pre- or post-deprivation opportunity, is
fatal to his claim.
The two incidents on which the First Amendment claim is
founded - which are in turn two of the three bases for his
termination - appear not to have been within the scope of
Lavalette’s part-time employment as a plumbing inspector.

As a

consequence, he may be viewed by a reasonable jury as speaking as
a citizen on matters of public concern and not as to a matter
specific to his own employment.

In one incident, while

conducting an inspection of a restaurant regarding plumbing
matters, it appears he identified public health issues beyond
plumbing and voiced concerns.

In the second incident, while

conducting his personal plumbing business at a private residence,
he identified conditions that caused him to make a report to a
town official.
In order to determine whether his rights to free speech have
been abridged, Lavalette must show that (1) he spoke as a citizen
on a matter of public concern; (2) his First Amendment interest
and the interest of the public outweigh the government’s interest
in functioning efficiently; and (3) that his protected speech was
a substantial and motivating factor in adverse action against
him.

Welch v. Ciampa, 542 F.3d 927, 938 (1st Cir. 2008).

It is

undisputed that the incidents were identified as bases for the
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adverse employment action against Lavalette.

On this thin

record, there is a genuine dispute whether Lavalette’s speech
concerned matters of public concern and whether the governmental
interest in efficiency is outweighed by interests protected by
the First Amendment.

Cf.

Connick v. Myers, 461 U.S. 138, 147-48

(1983) (“Whether an employee’s speech addresses a matter of
public concern must be determined by the content, form, and
context of a given statement.”).
Accordingly, I DENY plaintiff’s motion (#15) for summary
judgment and GRANT so much of defendants' cross motion (#23) for
summary judgment as concerns the plaintiff’s due process claim
and DENY so much of that motion as concerns First Amendment
claims.

/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

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