Bradley v. Cruz et al

Filing 207

Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER ALLOWING IN PART and DENYING IN PART 131 Defendants' Motion for Summary Judgment; DENYING 163 Defendants'Amended Motion to Strike Portions of Plaintiff's Omnibus Statement. See Attached Order.(DaSilva, Carolina)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

JOHN BRADLEY,
Plaintiff,
v.
TIMOTHY J. CRUZ, et al.,
Defendants.

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Civil Action No. 1:13-cv-12927-IT

MEMORANDUM AND ORDER
March 30, 2017
TALWANI, D.J.
Plaintiff John Bradley brings this action against Defendants Timothy Cruz, Michael
Horan, Frank Middleton, and the Plymouth County District Attorney’s Office for claims arising
out of Bradley’s employment, and termination of employment, as the Deputy First Assistant
District Attorney and Chief District Court Prosecutor in the Plymouth County District Attorney’s
Office (“D.A.’s Office”). Bradley alleges violation of 42 U.S.C. § 1983 (Count I against Cruz,
Horan, and Middleton); violation of the Massachusetts Civil Rights Act (Count II against Cruz,
Horan, and Middleton); tortious interference with an advantageous contractual, business, or
employment relationship (Count III against Horan and Middleton); wrongful termination in
violation of public policy (Count V against the D.A.’s Office); and violation of the
Massachusetts Whistleblower Act, Mass. Gen. Laws ch. 149, § 184 (Count VI against the D.A.’s
Office).

Pending before the court are Defendants’ Motion for Summary Judgment [#131] and
Defendants’ Amended Motion to Strike Portions of Plaintiff’s Omnibus Statement [#163]. For
the reasons set forth in this order, the summary judgment motion is ALLOWED IN PART and
DENIED IN PART, and the motion to strike is DENIED.
I. Motion to Strike
Defendants have moved to strike certain portions of Bradley’s Local Rule 56.1 statement,
asserting that certain responses do not properly controvert Defendants’ corresponding statement
of undisputed fact and that other responses do not contain record citations. Each response by
Bradley in his Local Rule 56.1 statement that Defendants contest includes citations to the record.
Whether the record evidence is sufficient to controvert Defendants’ corresponding statements is
an issue for summary judgment but is not a basis for striking the responses.
Defendants also assert that certain responses include “inappropriate argument and
innuendo.” The court declines to strike these responses but relies only upon facts supported by
the summary judgment record. See Ferring Pharms., Inc. v. Braintree Labs., Inc., No. 13-12553NMG, 2016 WL 6078287, at *8 (D. Mass. Oct. 14, 2016); Shervin v. Partners Healthcare Sys.,
Inc., 2 F. Supp. 3d 50, 60 (D. Mass. 2014), aff’d, 804 F.3d 23 (1st Cir. 2015).
II. Motion for Summary Judgment
A. Standard
A moving party is entitled to summary judgment 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). A
genuine dispute of fact exists if an issue can be resolved in favor of either party. Calero-Cerezo
v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir. 2004). A fact is material if it has the potential to
affect the outcome of the case. Id. In passing on a motion for summary judgment, the court
construes all properly supported evidence in the light most favorable to the non-moving party
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and draws all reasonable inferences in its favor. Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st
Cir. 1990). The burden falls on the moving party to demonstrate an “absence of evidence to
support the non[-]moving party’s case.” Celotex Corp. v. Cattret, 477 U.S. 317, 325 (1986).
When the moving party satisfies that burden, the non-moving party “must adduce specific facts
showing that a trier of fact reasonably could find in his favor.” Murray v. Warren Pumps, LLC,
821 F.3d 77, 83 (1st Cir. 2016) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986)).
B. Summary Judgment Record
Although many facts are strongly disputed and a jury may well reach a different
conclusion, the record is recited here in the light most favorable to Bradley, the non-moving
party, as required on summary judgment. Griggs-Ryan, 904 F.2d at 115. Based on the summary
judgment record, a jury finding Bradley’s evidence credible and resolving factual disputes in his
favor could find the following chronology of events:
Bradley began his career in the D.A.’s Office in 1991, where he served until 2001, when
he joined the U.S. Attorney’s Office.
In November 2001, Cruz was appointed the Plymouth County District Attorney. He was
elected to a four-year term in 2002.
In 2003, Bradley returned to the D.A.’s Office, and shortly after his return, was named
Deputy First Assistant District Attorney.
Bradley has presented evidence that, at a 2003 meeting about salary increases, the D.A.’s
Office’s Chief Legal Counsel, Michael Horan, commented to another assistant district attorney
about the extent to which individual employees had supported Cruz’s 2002 campaign. According
to Bradley, Horan also told him “on many occasions” in 2004 or 2005 that individual
contributions from employees “were important to Mr. Cruz” and that political contributions were
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tied to decisions about raises.
In 2005, and again in 2006, Bradley contributed $500 to Cruz’s 2006 re-election
campaign. Also in 2005 or 2006, Bradley became Chief District Court Prosecutor, supervising
attorneys that practiced in the county’s district courts. As such, he was the fourth highest paid
attorney in the D.A.’s Office. Although advising assistant district attorneys practicing in the
county’s superior courts was never among Bradley’s official responsibilities, Horan and Cruz
informally tasked Bradley with this additional role when First Assistant District Attorney Frank
Middleton was unavailable.
In 2006, Cruz was re-elected to a second four-year term, and in both 2007 and 2009,
Bradley again contributed $500 to Cruz’s re-election campaign.
In 2009, Bradley met with Cruz to discuss, among other things, Bradley’s concerns about
Frank Middleton’s decisions as to the handling of cooperating witnesses in homicide cases. Cruz
advised Bradley he would look into these concerns but did not. Cruz did tell Middleton that
Bradley had complained about Middleton.
In 2010, Bradley shared with Horan his concerns about a particular cooperating witness’
potential for violence. Horan later reported to Bradley that Horan had spoken with Cruz, who
had professed “complete faith” in Frank Middleton’s decisions regarding this witness.
Eventually, a rift developed among D.A.’s Office employees over the direction the office
was taking, particularly with respect to a series of administrative decisions made by Frank
Middleton. On one side of the schism sat Middleton and a group of employees that included
Middleton’s wife, Bridget Middleton. On the other side was Bradley, Horan, and a group of
assistant district attorneys, including Karen O’Sullivan.
Bradley did not contribute to Cruz’s re-election campaign in 2010. Bradley contends that,

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after he stopped contributing to the campaign, Horan told him “several times” that the
Middletons had tried to persuade Cruz to fire him for this reason. According to Bradley, Horan
told Bradley that the Middletons had told Horan, “Well, Tim’s not quite there yet. But they’re
still working on it.”
In or around 2010, according to Bradley, Horan instructed him to transfer an assistant
district attorney to an office far from his home, because that attorney had not contributed to or
participated in Cruz’s campaign. Bradley complied. Bradley further has presented evidence that,
in 2010, Horan told O’Sullivan that Cruz and Frank Middleton were displeased with
O’Sullivan’s lack of participation in the campaign, and he advised her to participate. According
to Bradley, Horan told Bradley that Horan was present at a meeting in which Frank Middleton
tried to persuade Cruz to determine O’Sullivan’s pay raise based on her lack of participation in
the campaign. Additionally, Bradley has submitted an affidavit from a former D.A.’s Office
employee who asserts that, during Cruz’s tenure, she was “pressured to participate and/or
contribute to his political campaign” and that this expectation “was part of the office culture.”
Cruz was re-elected for a second full term as Plymouth County District Attorney in
November 2010. After the election, in late November or early December 2010, Bradley raised
concerns to Horan about Middleton’s decisions regarding yet another cooperating witness. A few
days later, Horan told Bradley that he had addressed the matter with Cruz, who was not
concerned.
By December 2010, the rift in the D.A.’s Office had come to a head. A group of assistant
district attorneys, including Bradley, planned to approach Cruz with concerns about Frank
Middleton’s leadership decisions while the Middletons were away on vacation. Bridget

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Middleton learned about their plans and, on her own initiative, met separately with three assistant
district attorneys to discuss their colleagues’ grievances and plans.
The meetings were memorialized in Bridget Middleton’s typed notes. Summarizing what
one of the assistant district attorneys told her, she wrote:
[The assistant district attorney] feels that they are undermining Tim [Cruz]
politically outside the office . . . JB [John Bradley] and KO [Karen
O’Sullivan] made a purposeful determination to do nothing for Tim
because they don’t like how the office is run. Everyone knew that JB did
not help and it sent a strong message to the staff. This undermined Tim
during a critical period.
In her notes documenting statements made by another of the three assistant district attorneys,
Bridget Middleton wrote: “It is well know[n] that JB and KO sat out purposefully. This did not
send a positive message to the rest of the staff.” Although that assistant district attorney testified
that the notes may have been referring to statements she may have made about Bradley and
O’Sullivan’s attendance at an office meeting, Bridget Middleton testified that it was her
understanding that the comments concerned their participation in the recent campaign. Bridget
Middleton gave her notes to Cruz.
According to Bradley, in late 2010 or early 2011, assistant district attorneys assigned to
the superior courts were instructed that they no longer should consult him about their cases.
In January 2011, Cruz held a mandatory staff meeting in which he stated that if
employees disagreed with his office policies, they should find other employment.
Toward the end of 2011, Bradley again spoke with Horan about concerns regarding a
third cooperating witness. After relaying this to Cruz, Horan told Bradley that Cruz had said he
was “done” discussing such matters.
Also that year, on November 17, 2011, a Boston Globe reporter contacted Bradley about
acquittals in jury-waived trials in operating-under-the-influence (“OUI”) cases. Bradley

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previously had met the reporter to discuss this topic, with Cruz’s blessing. After communicating
with the reporter on November 17, Bradley sent the following e-mail to Cruz:
Got a call from the Globe asking what we are going to do, moving
forward, on the jury waived/[OUI] issue. I mentioned that we were
considering asking for declination on all [OUI] jury waivers in
cases involving [four specific judges]. If you agree to this, they
will run a front page story. Personally, I feel we are remiss if we
don’t do this, press coverage notwithstanding.
Cruz, who was out of the office, responded: “I am deciding what I will do with this when I get
back. No more contact with [the G]lobe until I say so.” Bradley wrote back: “I am not your child.
I have done a lot of important work in this office both before and after you became DA. You can
start showing a little more respect in the future.”
On November 21, 2011, Bradley and Cruz met in Cruz’s office. At the meeting, Cruz
said something to the effect of: “You’re obviously not happy here.” Bradley testified that he
responded that he was unhappy in the D.A.’s Office but that he enjoyed his work, and he told
Cruz about his two longstanding homicide cases—Commonwealth v. Caswell and
Commonwealth v. Winquist—that were scheduled for trial soon. Caswell would be tried in
December, and, at that time, the Winquist trial was set for February 2012. Bradley also informed
Cruz that his pension would vest in the next year.
On December 21, 2011, a jury returned with a guilty verdict in Caswell.
On January 4, 2012, Bradley e-mailed Cruz’s assistant: “Could you tell DA that I’ve
already given myself a congratulatory pat on the back for the Caswell conviction; so he need not
expend extra energy by offering any kind words! I know how busy and important he is . . .” Also
that month, Cruz relieved Bradley of his duties and title as Chief District Court Prosecutor,
although Bradley’s salary remained the same. Bradley’s only remaining responsibility was
prosecuting Commonwealth v. Winquist. According to Bradley, he complained about the release

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of his responsibilities to Horan, who told him that the Middletons were trying to marginalize
him.
In February 2012, Cruz formally retained the services of William Gary Kilzer, an
independent human resources consultant to address the management of the office. Kilzer’s
evaluation focused on the employees who directly reported to Cruz (the Middletons and Horan),
and he did not speak with Bradley. Cruz testified at his deposition that, at the time he was
determining which employees Kilzer should confer with, he had not yet made the decision to fire
Bradley. According to Kilzer, Cruz told him about Bradley’s e-mail, and Kilzer suggested that
Cruz fire Bradley. Kilzer recalled Cruz saying that he “didn’t want to fire him now” because
Bradley was in the middle of a murder trial. Kilzer completed the consulting assignment in or
around March.
Winquist was tried later in 2012, and on September 25, 2012, the jury reached a guilty
verdict. A few days later, Horan was informed for the first time by Cruz that Cruz had decided to
fire Bradley, and on September 28, Horan summoned Bradley to his office at Cruz’s behest and
asked Bradley to resign. When Bradley refused, Horan said he was fired. Bradley testified that,
when asked if there was a reason why he was being let go, Horan “kind of shrugged his
shoulders and smirked and said, ‘Of course not.’” Bradley’s pension had been set to vest the
following May.1
At the time of the termination, Bradley’s personnel file contained no notation about an
agreement to resign or pending termination. Nor was Bradley ever placed on a performance
improvement plan.

Bradley’s affidavit states that the pension would have vested in May 2012, as opposed to May
2013, but this appears to be a typographical error.
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A. Analysis
Defendants move for summary judgment as to all counts.
1. Massachusetts Civil Rights Act
Bradley alleges that Cruz, Horan, and Middleton violated the Massachusetts Civil Rights
Act (“MCRA”).2 The MCRA “creates remedies for ‘[a]ny person whose exercise or enjoyment
of rights secured by the constitution or laws of the United States, or of rights secured by the
constitution or laws of the commonwealth, has been interfered with, or attempted to be interfered
with [by any person, whether or not acting under color of law, by threats, intimidation or
coercion].’” Currier v. Nat’l Bd. of Med. Examiners, 965 N.E.2d 829, 837 (Mass. 2012) (quoting
Mass. Gen. Laws ch. 12, §§ 11I, 11H). To succeed on an MCRA claim, “a plaintiff must prove
that (1) the exercise or enjoyment of some constitutional or statutory right; (2) has been
interfered with, or attempted to be interfered with; and (3) such interference was by threats,
intimidation, or coercion.” Id. at 837-38.
Defendants argue, inter alia, that Bradley’s MCRA claim cannot survive summary
judgment because he has failed to establish interference with his First Amendment rights through
threats, intimidation, or coercion. Bradley counters that he has produced sufficient evidence for a
jury to find that his termination constituted economic coercion. Within the context of the MCRA,
“actionable coercion is ‘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.’” Buster v.
George W. Moore, Inc., 783 N.E.2d 399, 410 (Mass. 2003) (emphasis omitted) (quoting Planned
Parenthood League of Mass., Inc. v. Blake, 631 N.E.2d 985, 990 (Mass. 1994)). “It is ‘the active

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The Complaint [#1] alleges violation of Mass. Gen. Laws ch. 12, § 11H, but that section
authorizes actions brought by the Massachusetts Attorney General. Section 11I provides for a
private cause of action.
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domination of another’s will.’” Id. (quoting Planned Parenthood, 631 N.E.2d at 990). Indeed, “in
certain circumstances, economic coercion, standing alone, may be actionable under the
[MCRA].” Id. at 411. The applicable standard for determining the existence of economic
coercion is that of an objective, reasonable person. Currier, 965 N.E.2d at 838.
Bradley likens the termination of his employment to the cancellation of a contract. In
certain circumstances, one party may be liable under the MCRA for depriving another of its
rights under a contract. Buster, 783 N.E.2d at 410 & n.17 (citing Redgrave v. Bos. Symphony
Orchestra, Inc., 502 N.E.2d 1375 (Mass. 1987)). However, this argument fails here because
Bradley was an at-will employee. Mass. Gen. Laws ch. 12, § 16 (“Each district attorney shall,
subject to appropriation and subject to the conditions of this section, appoint and may, at his
pleasure, remove such assistant district attorneys as are necessary to the functioning of the office
of the district attorney.”). In Webster v. Motorola, Inc., 637 N.E.2d 203 (Mass. 1994), the
Massachusetts Supreme Judicial Court held that an employer’s threats to terminate the
employment of at-will employees was not actionable under the MCRA because the employees
did not possess contractual rights to continue in their positions. Id. at 206. Applying Webster, the
First Circuit concluded in Nolan v. CN8, 656 F.3d 71 (1st Cir. 2011), that the dismissal of an atwill employee also does not amount to actionable coercion. Id. at 79. Bradley contends that such
interpretation by federal courts is a misconstruction of Webster, which he claims merely upholds
the rights of employers to require universal drug testing. However, this overly narrow reading of
Webster overlooks its plain language. See Webster, 637 N.E.2d at 206 (“[T]he defendants
allegedly attempted to interfere with the plaintiffs’ rights by threatening the loss of their ‘at-will’
positions. This is not actionable conduct. No physical confrontation is alleged, and because the
plaintiffs were employed ‘at will,’ they had no contract right to their positions.” (emphases

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added)).
Bradley urges this court to follow the decision in Cabi v. Boston Children’s Hospital, 161
F. Supp. 3d 136 (D. Mass. 2016). However, the conduct alleged by the plaintiff post-doctoral
fellows in Cabi included multiple, frequent, and explicit threats to harm the plaintiffs’ future
careers if they did not agree to the defendants’ demands. Id. at 149-51. Here, Bradley has alleged
no similar threats to his future job prospects and instead points only to Horan’s statements that
the Middletons sought to get him fired from his position at the D.A.’s Office for not contributing
to Cruz’s campaign. These “threats” are no more than the threats to an at-will position directly
governed by Webster.
Bradley has not presented sufficient evidence of threats, coercion, or intimidation
sufficient to withstand summary judgment on his MCRA claim.
2. Section 1983
Bradley brings a claim against Horan, Middleton, and Cruz for violation of Section 1983
by discriminating against Bradley because he did not contribute to or participate in the 2010
campaign. An employee alleging adverse action on the basis of First Amendment political
discrimination in violation of Section 1983 carries the initial burden of establishing a prima facie
case. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). To do so, he
must present evidence to show that “(1) the plaintiff and the defendant belong to opposing
political affiliations; (2) the defendant has knowledge of the plaintiff’s . . . affiliation; (3) . . . a
challenged employment action [occurred]; and (4) . . . political affiliation was a substantial or
motivating factor behind it.” Welch v. Ciampa, 542 F.3d 927, 938-39 (1st Cir. 2008) (quoting
Martinez-Vélez v. Rey-Hernández, 506 F.3d 32, 39 (1st Cir. 2007)). In this context, “persons
sued in their individual capacities . . . must be gauged in terms of their own actions.” Id. at 936

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(quoting Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)).
Once the plaintiff makes a prima facie showing, the burden of production shifts to the
defendant to “show[] by a preponderance of the evidence that it would have reached the same
decision . . . even in the absence of the protected conduct.” Mt. Healthy, 429 U.S. at 287; see
also Acevedo-Diaz v. Aponte, 1 F.3d 62, 67 (1st Cir. 1993). The plaintiff “may discredit the
proffered nondiscriminatory reason, either circumstantially or directly, by adducing evidence that
discrimination was more likely than not a motivating factor.” Padilla-Garcia v. Guillermo
Rodriguez, 212 F.3d 69, 77 (1st Cir. 2000). “The evidence by which the plaintiff established [his
or] her prima facie case may suffice for a factfinder to infer that the defendant’s reason is
pretextual and to effectively check summary judgment.” Id. at 78.
a. Claim Against Horan
When reasonably viewed in Bradley’s favor, the facts as to Horan show at most that he
conveyed the messages of others. There is nothing to suggest that he participated in the decision
to terminate or otherwise acted against Bradley. As Bradley has not come forward with facts
sufficient to support a prima facie claim against Horan, Bradley is unable to withstand Horan’s
summary judgment motion on the Section 1983 claim.
b. Claims Against Cruz and Middleton
Defendants argue that Bradley cannot demonstrate that his decision not to support Cruz’s
campaign was a substantial or motivating factor behind his termination or the removal of his
responsibilities and that the record demonstrates that Bradley’s employment was terminated
because of disrespectful and insubordinate behavior, not protected activities.
Bradley has presented enough evidence to establish a prima facie case, particularly as to
the removal of his informal responsibilities. When reasonably viewed in his favor, the record

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evidence shows that, on the heels of the 2010 campaign, Cruz received Bridget Middleton’s
typed notes which, when read in the light most favorable to Bradley, state that he did not support
Cruz’s most recent run and that this lack of support “undermined [Cruz] politically” and among
employees. At about the same time, and for no reasons articulated in the record, Cruz was
stripped of his informal role of advising assistant district attorneys about their superior court
cases.
The removal of Bradley’s duties as a Chief District Court Prosecutor in January 2012 and
his eventual termination after the murder cases concluded pose a closer case, but the evidence
does suffice for a prima facie case. Bradley has adduced evidence that, if believed, demonstrates
that his lack of participation in Cruz’s campaign was a substantial factor in Cruz’s hostility
toward him—despite the delayed action in effectuating the termination. And although Frank
Middleton did not have the statutory authority to fire him, a jury reasonably could find that
Middleton influenced the decision. In particular, a jury could find that Middleton allegedly told
Horan that Middleton intended to get Bradley fired because Bradley did not provide sufficient
political support.
The question remains as to whether Bradley’s claims against Cruz and Middleton survive
the remaining prongs of the Mt. Healthy burden-shifting test. Cruz testified at his deposition that
when he spoke to Bradley after he sent the November 2011 e-mail, Bradley said he wanted to try
the two aforementioned cases and then would leave the office after Winquist. According to Cruz,
he informed Bradley at that time that he would appoint a new Chief District Court Prosecutor in
January 2012. Cruz testified further that he decided to terminate Bradley’s employment “[p]retty
much the moment” he received the November 2011 e-mail, because “I knew he could no longer
work in the office with that level of disrespect for me and for the office.”

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But despite this testimony, a genuine dispute exists as to whether the e-mail was the
reason for the termination or an after-the-fact justification. Bradley’s version of the November
2011 conversation differs from Cruz’s, and there are no notations in Bradley’s personnel file
about his pending termination or an alleged agreement to resign. Bradley never was placed on a
performance improvement plan, and Cruz did not tell Horan of Cruz’s decision until on or about
the day of Bradley’s termination. Cruz also testified that he had not yet decided to dismiss
Bradley by the time Kilzer was working with them, and Cruz did not hire Kilzer until February
2012 (although they had had an introductory meeting on an unknown date before that). Kilzer
testified that he and Cruz discussed Bradley’s conduct and that Cruz expressly declined to
terminate his employment. Kilzer did not testify that a decision to terminate Bradley already had
been made. Further, a reasonable juror could conclude that, had the November 2011 e-mail been
viewed as so offensive as to warrant termination, Cruz would have terminated Bradley’s
employment immediately, issued a performance plan, or at least told the Chief Legal Counsel
during the intervening months. In light of these wholly disputed material facts, Cruz and
Middleton are not entitled to summary judgment on the Section 1983 claim.
3. Tortious Interference Claim
Bradley further alleges that Horan and Middleton tortiously interfered with Bradley’s
advantageous contractual, business, or employment relationship. A plaintiff alleging tortious
interference must have evidence on which a jury could find
that (1) he had an advantageous relationship with a third party (e.g., a present . . .
employment relationship); (2) the defendant knowingly induced a breaking of the
relationship; (3) the defendant’s interference with the relationship, in addition to
being intentional, was improper in motive or means; and (4) the plaintiff was
harmed by the defendant’s actions.
Blackstone v. Cashman, 860 N.E.2d 7, 12-13 (Mass. 2007). With respect to the third element,

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when the defendant is an official of the employer and acting in the scope of his or her
employment, the plaintiff must prove that the defendant acted with actual malice. Id. at 13.
Actual malice exists when the defendant acts with “a spiteful, malignant purpose, unrelated to
the legitimate corporate interest.” Id. (quoting Wright v. Shriners Hosp. for Crippled Children,
589 N.E.2d 1241, 1246 (Mass. 1992)).
With respect to Horan, even when the summary judgment record is reasonably construed
in a light most favorable to Bradley, the facts demonstrate that Horan at most acted as the
harbinger of the messages of others. There is no evidence that Horan interfered with Bradley’s
employment relations and certainly no evidence that he acted with a spiteful purpose. Summary
judgment in his favor therefore is proper.
With regard to Middleton, when all reasonable inferences are drawn in Bradley’s favor,
Middleton’s efforts against Bradley as allegedly reported by Horan is sufficient evidence from
which a jury could find that Middleton actively tried to interfere with Bradley’s employment and
ultimately succeeded. When considered in the light most advantageous to Bradley, a jury could
find Horan’s statements to show that Middleton acted with actual malice unrelated to the
legitimate interests of the D.A.’s Office. For this reason, whether Middleton acted in the office’s
legitimate interest or with actual malice is a question of fact not amenable to summary judgment.
4. Wrongful Termination in Violation of Public Policy
Bradley’s claim that the D.A.’s Office wrongfully terminated him in violation of public
policy is based on the same evidence offered in support of his Section 1983 claim against Cruz.
Despite the “general rule” that an at-will employee may be terminated for any reason or no
reason, “[l]iability may be imposed on an employer . . . if an at-will employee is terminated for a
reason that violates a clearly established public policy.” Upton v. JWP Businessland, 682 N.E.2d
1357, 1358 (Mass. 1997). The D.A.’s Office argues that Bradley has failed to adduce evidence
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that his lack of political support was the reason for his termination. In so doing, the D.A.’s Office
points to the nearly two years that elapsed between Bradley’s decision not to contribute to the
2010 campaign and the termination of his employment in September 2012. They claim he was
fired for insubordinate behavior. As discussed above, this is a question of fact.
Since a reasonable juror could accept Bradley’s version of events, summary judgment on
this count must fail.
5. Violation of the Massachusetts Whistleblower Act
Finally, Bradley charges that the D.A.’s Office violated the Massachusetts Whistleblower
Act, Mass. Gen. Laws ch. 149, § 185. The Massachusetts Whistleblower Act states, in pertinent
part:
An employer shall not take any retaliatory action against an
employee because the employee . . . [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, or a rule or regulation promulgated
pursuant to law, or which the employee reasonably believes poses
a risk to public health, safety or the environment.
Mass. Gen. Laws ch. 149, § 185(b)(1). To succeed on a claim under the Act, the employee must
demonstrate “that he engaged in protected activity and that his participation in that activity
played a substantial or motivating part in the retaliatory action.” Pierce v. Cotuit Fire Dist., 741
F.3d 295, 303 (1st Cir. 2014) (quoting Welch, 542 F.3d at 943). Upon a prima facie showing, the
burden shifts to the employer to “proffer[] a legitimate, nonretaliatory reason for the [adverse
action].” Id. (quoting Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 262 (1st Cir.
1999)). The burden then returns 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. (quoting Higgins, 194 F.3d at 262).

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Bradley argues that his multiple complaints about the handling of cooperating witnesses
was a substantial or motivating factor in his termination.3 In support of its motion for summary
judgment, the D.A.’s Office argues that Bradley did not directly disclose his concerns about
cooperating witnesses to Cruz. However, in addition to presenting evidence of a direct disclosure
to Cruz in 2009, Bradley has adduced evidence that he disclosed these concerns to Horan, who
relayed them to Cruz as late as the end of 2011. A reasonable juror could conclude that the
disclosure was made.
The D.A.’s Office further argues that Bradley was terminated for insubordinate behavior,
not his complaints regarding cooperating witnesses. This is a factual issue that cannot be
resolved on summary judgment. Viewing the record in the light most favorable to Bradley, a jury
reasonably could find that Bradley raised concerns to Cruz, either directly or through Horan as
an intermediary, about the handling of cooperating witnesses multiple times between 2009 and
2011. When Bradley last raised the matter at the end of 2011, Cruz responded that he would not
discuss it further. By Cruz’s testimony, he made the decision in late 2011 to terminate Bradley’s
employment when he finished his homicide trials. Shortly thereafter, in January 2012, Cruz did
strip Bradley of his title of Chief District Court Prosecutor. As discussed above, it is disputed as
to when the decision to terminate Bradley was made, and a reasonable juror could determine that
the reason for termination proffered by the D.A.’s Office—the November 2011 e-mail—is
pretextual. Though the matter is hotly contested, the court cannot conclude that a reasonable jury
could not find on this record that the D.A.’s Office terminated Bradley’s employment because he
complained about practices related to confidential witnesses. For this reason, the motion for

3

As an additional basis for relief under the Act, Bradley alleged in his Complaint [#1] that his
objections to certain judges’ handling of OUI cases played a significant role in his termination.
However, he has abandoned this theory at the summary judgment stage.
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summary judgment as to this count must fail.
III. Conclusion
For the foregoing reasons, Defendants’ Motion for Summary Judgment [#131] is
ALLOWED IN PART and DENIED IN PART. Specifically, Horan is entitled to summary
judgment on all counts, and Cruz and Middleton are entitled to summary judgment on Count II
(MCRA). Summary judgment is denied as to all remaining counts and defendants. Defendants’
Amended Motion to Strike Portions of Plaintiff’s Omnibus Statement [#163] is DENIED.
IT IS SO ORDERED.
Date: March 30, 2017

/s/ Indira Talwani
United States District Judge

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