Pomponio et al v. Town of Ashland et al

Filing 75

Judge Indira Talwani: ORDER entered granting in part and denying in part Motions for Judgment on the Pleadings 23 , 26 ;(Talwani, Indira)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
EDWARD POMPONIO et al.,

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Plaintiffs,
v.
TOWN OF ASHLAND, et al.,
Defendants.

Civil Action No. 15-cv-10253-IT

MEMORANDUM & ORDER
February 5, 2016
I.

Introduction
Plaintiffs Edward Pomponio, a former employee of the Ashland Police Department, and

his wife, Paula Pomponio, allege that the moving Defendants, all employees of the Ashland
Police Department and members of the Ashland Police Association, harassed Pomponio, made
defamatory statements about both Plaintiffs in a union complaint, and engaged in a concerted
effort to have Edward Pomponio removed from the police department. Plaintiffs allege
violations of 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act, as well as claims for
intentional infliction of emotional distress, negligent infliction of emotional distress, defamation,
tortious interference with contractual relations, battery, and loss of consortium.
Presently before the court are two motions for judgment on the pleadings: one brought by
Defendants Richard Briggs, Gregory Fawkes, Robert MacQuarrie, Michael Dionne, and Allena
Downey, who are named in all of these counts,1 and one brought by Defendants Christopher

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Only Fawkes in named in the battery count.

Alberini and John Driscoll, who are named in some of the tort claims. [#23], [#26]. The moving
Defendants are a lieutenant (Richard Briggs), sergeants (Gregory Fawkes and Robert
MacQuarrie), a detective (John Driscoll) and officers (Christopher Alberini, Michael Dionne,
and Allena Downey) (“Defendants” or “Moving Defendants”). For the following reasons, the
motions are ALLOWED IN PART and DENIED IN PART.
II.

Facts as Alleged in the First Amended Complaint
Edward Pomponio (“Pomponio”) began as a patrol officer for the Ashland Police

Department in March 2008. First Am. Compl. ¶ 27. In 2008, Pomponio was disciplined for the
accidental discharge of his firearm. Id. ¶ 28. He alleges that immediately following that
discharge, and up to 2013, he was subjected to name calling, harassment, humiliation, emotional
and physical distress from Defendants Richard Briggs, Michael Dionne, Gregory Fawkes,
Christopher Alberini, Robert MacQuarrie, Luann Tomaso, and Allena Downey. Id. ¶ 29. He
asserts further that Briggs, Fawkes, Alberini, MacQuarrie, Dionne, Downey, Tomaso, and
Driscoll began calling him derogatory names, posting humiliating photographs around the
station, and altering a department shooting trophy, and that harassment regarding the shooting
continued up to 2013. Id. ¶¶ 30-31.
In December 2009, Pomponio filed a complaint against Downey for disrespectful conduct
and untruthfulness. Id. ¶ 33. Pomponio alleges that as a result of filing this complaint, he was
subjected to continuous harassment, humiliation, mental anguish and extreme emotional and
physical distress by Briggs, Fawkes, Alberini, MacQuarrie, Dionne, and Downey that continued
to 2013. Id. ¶ 34.
From 2008 to 2013, Pomponio filed several allegations of misconduct, including
allegations of criminal activity of co-workers. Id. ¶ 35. Pomponio alleges that as a result of

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these complaints, he was subjected to harassment, ridicule, hostile work atmosphere, and name
calling by many officers, including Briggs, Fawkes, Alberini, MacQuarrie, Dionne, Downey,
and Tomaso that continued to 2013. Id. ¶ 36.
From 2008 to 2013, Fawkes, Alberini, and MacQuarrie subjected Pomponio to
intimidation, fear of physical harm, harassment, name calling, and ridicule regarding his
religious beliefs. Id. ¶¶ 86, 90. Alberini placed devil worship materials on Pomponio’s locker
on multiple occasions between 2009 and 2013. Id. ¶ 87. The chief of police, Scott Rohmer,
ordered Lieutenant Briggs to take corrective action but Briggs failed to do so. Id. ¶ 89.
In October 2011, Pomponio was appointed as provisional sergeant. Id. ¶¶ 40, 54.
Alberini solicited officers to boycott Pomponio’s swearing in ceremony, causing him
harassment, humiliation, mental anguish, and extreme emotional and physical distress. Id. ¶¶ 5051, 64-65. Town Manager Petrin told Police Chief Rohmer that Pomponio was not liked by the
Ashland Police Association membership. Id. ¶¶ 43, 57. Petrin refused to promote Pomponio to
permanent Sergeant, allegedly as a result of false information that had been provided by Briggs,
Dionne, MacQuarrie, and Fawkes. Id. ¶¶ 43, 49, 57, 63.
In December 2011, Pomponio reported sexual misconduct allegedly occurring within the
police department. Id. ¶¶ 52, 66. As a result of reporting the sexual misconduct, Pomponio was
allegedly subjected to harassment, name calling, isolation, humiliation, mental anguish, and
extreme emotional and physical distress by Briggs, Fawkes, Alberini, MacQuarrie, Dionne, and
Tomaso that continued up to 2013. Id. ¶ 68.

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Fawkes, MacQuarrie, and Dionne subsequently filed a complaint (hereinafter the “Union
Complaint”) on behalf of members of the Ashland Police Association. Id. ¶ 69; Union Compl. 2,3
Fawkes drafted the Union Complaint and ten officers signed it. First Am. Compl. ¶¶ 75-76.
Briggs, Fawkes, MacQuarrie, and Dionne provided the Union Complaint to Metrowest Daily
News and the Union Complaint was subsequently published. Id. ¶ 73. Outside investigators
later determined that the Union Complaint contained false and misrepresented facts and was
“drafted in an effort to embarrass Pomponio and Chief Rohmer and force them to resign.” Id.
¶ 77. In January 2012, following the filing of the Union Complaint, Fawkes and Dionne
informed Chief Rohmer that the complaint against Chief Rohmer would be withdrawn if the
investigation regarding the sexual misconduct were terminated. Id. ¶ 78.
In February 2012, Pomponio reported to Chief Rohmer that several Ashland Police
Officers had violated department rules and criminal laws and that certain investigation reports
were removed. Id. ¶¶ 103, 105. As a result of this investigation, Pomponio allegedly was
subjected repeated harassment, name calling, humiliation, mental anguish, and extreme
emotional and physical distress from officers, including Briggs, Fawkes, MacQuarrie, Alberini
and Dionne. Id. ¶ 107.

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The Union Complaint is dated January 23, 2011, and Plaintiff alleges that the Union Complaint
was filed in 2011. First Am. Compl. ¶ 69; Defs., Briggs, Fawkes, MacQuarrie, Dionne,
Downey’s Mem. Law Supp. Mot. J. Pleadings Ex. A [#24-1]; Pls.’ Mot. Opp’n Defs. Briggs,
Fawkes, MacQuarrie, Dionne, Downey’s Mot. J. Pleadings Ex. B, at 12-17 [#48-1]. It appears
from further allegations regarding the response to the Union Complaint, however, that the 2011
date may be a typographical error in both documents. See First Am. Compl. ¶ 78.
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Plaintiff alleges that the Union Complaint accused Paula Pomponio of bribing Rohmer “in an
effort to buy Pomponio his position within the Ashland Police,” First Am. Compl. ¶¶ 69-70, 7576, but the Union Complaint, which Plaintiffs and Defendants have submitted to this court, does
not mention nor refer to Paula Pomponio. Defs., Briggs, Fawkes, MacQuarrie, Dionne,
Downey’s Mem. Law Supp. Mot. J. Pleadings Ex. A [#24-1]; Pls.’ Mot. Opp’n Defs. Briggs,
Fawkes, MacQuarrie, Dionne, Downey’s Mot. J. Pleadings Ex. B, at 12-17 [#48-1].
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In March 2012, Pomponio attended a police association event to discuss a complaint filed
against Fawkes. Id. ¶ 108. Fawkes approached Pomponio, who was reading that complaint, and
forcefully removed it from Pomponio’s hands. Id. ¶ 109. Pomponio filed a complaint regarding
the alleged assault and battery, and, as a result, was subjected to continuing harassment, name
calling, isolation, and ridicule from Briggs, Fawkes, Alberini, MacQuarrie and Dionne. Id. ¶¶
110, 111.
Fawkes and Dionne met with Ashland selectmen to attempt to convince them to remove
Pomponio and Chief Rohmer from their positions. Id. ¶ 115. Fawkes told them that he, Dionne,
and the Ashland Police Association had been working for nine months to oust Rohmer and
Pomponio. Id. ¶ 117.
On February 28, 2014, Pomponio was notified that he was subject to a disciplinary
hearing for destruction of drug evidence occurring in 2011 and for untruthfulness. Id. ¶ 125.
Pomponio alleges that Defendants’ conduct caused his 2014 termination, and that other officers
did not face the same discipline for similar conduct. Id. ¶¶ 126-27.
III.

Discussion
A. Standard of Review
Where “a motion for judgment on the pleadings ‘is employed as a vehicle to test the

plausibility of a complaint, it must be evaluated as if it were a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6).’” Shay v. Walters, 702 F.3d 76, 82 (1st Cir. 2012). In
evaluating a motion to dismiss, the court assumes “the truth of all well-pleaded facts” and draws
“all reasonable inferences in the plaintiff’s favor.” Nisselson v. Lernout, 469 F.3d 143, 150 (1st
Cir. 2006). To survive dismissal, a complaint must contain sufficient factual material “to ‘state a

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claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007)).
In deciding such a motion, a court is ordinarily limited to considering “only the
complaint, documents attached to it, and documents expressly incorporated into it.” Foley v.
Wells Fargo Bank, N.A., 772 F.3d 63, 72 (1st Cir. 2014). When, however, “a complaint’s
factual allegations are expressly linked to—and admittedly dependent upon—a document (the
authenticity of which is not challenged), that document effectively merges into the pleadings and
the trial court can review it in deciding a motion to dismiss under Rule 12(b)(6).” Beddall v.
State St. Bank & Trust Co., 137 F.3d 12, 17 (1st Cir. 1998).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations . . . [f]actual allegations must be enough to raise a right to relief above the
speculative level . . . .” Twombly, 550 U.S. at 555 (internal citations and quotations omitted).
“A claim has facial plausibility when the pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
663.
A. Claims Brought by Plaintiff Paula Pomponio
All of Paula Pomponio’s claims, except for her loss of consortium claim, stem from the
allegation that Defendants stated in the Union Complaint that Paula Pomponio bribed Chief
Rohmer in an effort to buy Pomponio his position within the police department. First Am.
Compl. ¶¶ 70-74. But the Union Complaint, attached to both the Defendants’ motions and
Plaintiffs’ oppositions and properly considered by the court, does not name or even refer to Paula
Pomponio at all. For that reason, Paula Pomponio has not stated claims for any of these counts
and her claims, except for her loss of consortium claim, are dismissed.

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B. Claims as to Defendant John Driscoll
The complaint refers to Defendant John Driscoll only in passing and Plaintiffs conceded
at argument on the instant motions that they did not state claims against him. Accordingly,
Driscoll’s motion is allowed and the claims against Driscoll are dismissed.
C. 42 U.S.C. § 1983 (Count VIII) Claim Against Moving Defendants Briggs,
Fawkes, MacQuarrie, Dionne, and Downey
To “state a claim under § 1983, a plaintiff must allege (1) the violation of a right
protected by the Constitution or laws of the United States and (2) that the perpetrator of the
violation was acting under color of law.” Cruz-Erazo v. Rivera-Montanez, 212 F.3d 617, 621
(1st Cir. 2000). 4 Plaintiffs allege interference with rights “secured by the federal Constitution
including its First, Fourth, Fifth, and Fourteenth Amendments.” First Am. Compl. ¶ 177.
Defendants assert that Plaintiffs have failed to provide specificity as to the alleged civil rights at
stake, and Plaintiffs, in response, explain that the Moving Defendants allegedly interfered with
Pomponio’s free speech rights to report the sexual harassment of an officer.
Although, as a general matter, the “First Amendment prohibits government officials from
subjecting an individual to retaliatory actions . . . for speaking out,” Decotiis v. Whittemore, 635
F.3d 22, 29 (1st Cir. 2011) (internal quotation marks omitted), a “governmental employer may
impose certain restraints on the speech of its employees, restraints that would be unconstitutional
if applied to the general public.” Davignon v. Hodgson, 524 F.3d 91, 100 (1st Cir. 2008)
“In distinguishing private action from state action, the general inquiry is whether ‘a state actor’s
conduct occurs in the course of performing an actual or apparent duty of his office, or . . . is
such that the actor could not have behaved in that way but for the authority of his office.’”
Zambrana-Marrero v. Suarez-Cruz, 172 F.3d 122, 125 (1st Cir. 1999) (quoting Martinez v.
Colon, 54 F.3d 980, 986 (1st Cir. 1995)); Martinez, 54 F.3d at 987 (“Though on duty and in
uniform, [defendant’s] status as a police officer simply did not enter into his benighted
harassment of his fellow officer.”). The parties do not address whether the First Amended
Complaint alleges sufficient facts showing that the Moving Defendants were acting under color
of state law, and accordingly, the court does not reach this issue.
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(quoting City of San Diego, Cal. v. Roe, 543 U.S. 77, 80 (2004)). The First Circuit has
articulated a three-part inquiry to determine whether an adverse employment action against a
public employee violates his First Amendment rights: (1) that he spoke as a citizen on a matter of
public concern, (2) that his interest in commenting on these matters outweighed the defendant’s
interest in the efficient performance of its public service, and (3) that the protected expression
was a substantial or motivating factor in the adverse employment action. Decotiis, 635 F.3d at
29. The first two factors are questions of law for the court while the third factor is ordinarily a
question of fact for the jury. Davignon, 524 F.3d at 100-01.
Under the first part of the Decotiis analysis, Pomponio must allege that his “speech
touched upon a matter of public concern” and that he spoke as a citizen rather than as an
employee. Decotiis, 635 F.3d at 30; see also Garcetti v. Caballos, 547 U.S. 410, 418 (2006). He
has done so.
First, sexual harassment and other discriminatory misconduct within a police department
are matters of public concern. See Baron v. Suffolk Cty. Sheriff’s Dep’t, 402 F.3d 225, 233-34
(1st Cir. 2005) (concluding that matters of public concern include official malfeasance, abuse of
office, and neglect of duties); Azzaro v. Cty. of Allegheny, 110 F.3d 968, 978-79 (3d Cir. 1997)
(report of sexual harassment matter of public concern); Thomas v. Town of Salisbury, No. 1413726, 2015 WL 5684074, at *5 (D. Mass. Sept. 28, 2015) (sexual harassment by acting police
chief a matter of public concern).
Second, Pomponio plausibly alleges that he was speaking as a citizen. When “public
employees make statements pursuant to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution does not” protect their
communications. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). However, “the mere fact that

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a citizen’s speech concerns information acquired by virtue of his public employment does not
transform that speech into employee—rather than citizen—speech.” Lane v. Franks, 134 S. Ct.
2369, 2379 (2014) (concluding that fired employee’s public testimony about information he
learned through his employment was citizen speech). Instead, the “critical question” is “whether
the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it
merely concerns those duties.” Id. While this issue may be disputed, the allegations are
sufficient to survive a motion to dismiss.
Under the second part of the Decotiis analysis, the court observes whether Pomponio’s
interest in reporting alleged sexual harassment outweighed Defendants’ interest in promoting the
efficiency of the public services the police department performs. In other words, the “question is
whether [Defendants] had an ‘adequate justification for treating [Pomponio] differently from any
member of the public. . . .’” Lane, 134 S. Ct. at 2380 (quoting Garcetti, 547 U.S. at 418).
Taking all of Pomponio’s allegations as true, Defendants can put forth no adequate justification
for retaliating against an employee who reports sexual harassment. For purposes of these
motions, Pomponio has shown that he engaged in constitutionally protected speech against
which Defendants retaliated.
Defendants argue that, even if Pomponio has stated a claim for a constitutional violation,
they are nevertheless protected by qualified immunity. Defendants only make a general claim of
qualified immunity and do not direct their arguments to Pomponio’s First Amendment claim;
moreover, the record is not sufficiently developed at this stage to evaluate this claim.
Accordingly, the court therefore does not find at the pleading stage that Defendants are entitled
to qualified immunity. See Jordan v. Carter, 428 F.3d 67, 74-75 (1st Cir. 2005) (rejecting

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qualified immunity where defendant put forth a “generic argument” in support of a motion to
dismiss). The motion for judgment on the pleading is denied as to Pomponio’s Count VIII.
D. State Law Claims
1. Anti-SLAPP Protection
Defendants argue the Union Complaint constituted petitioning activity protected by the
constitutions of the United States and the Commonwealth of Massachusetts, and that to the
extent Plaintiffs’ complaint is based on the Union Complaint, it is subject to dismissal under the
Massachusetts anti-SLAPP statute, Mass. Gen. Laws ch. 231, § 59H. Plaintiffs agree that the
state statute “bars claims brought against a party because of that party’s exercise of his right to
petition” and do not dispute that their complaint is based in large part on the Union Complaint.
They argue instead that the Union Complaint is not protected petitioning activity because
defendants did not seek redress in their status as citizens. Pls.’ Mem. Law Supp. Opp’n Defs.
Briggs, Fawkes, MacQuarrie, Dionne, Downey’s Mot. J. Pleadings [#48] at 13. According to
Plaintiffs, because the Union Complaint begins “[w]e, as employees of the Ashland Police
Department have learned of major acts of misconduct,” Defendants were acting as employees
and their speech is not protected.
As explained above, however, the “mere fact that a citizen’s speech concerns information
acquired by virtue of his public employment does not transform that speech into employee—
rather than citizen—speech.” Lane, 134 S. Ct. at 2379 (concluding that fired employee’s public
testimony about information he learned through his employment was citizen speech). Instead,
the “critical question” is “whether the speech at issue is itself ordinarily within the scope of an
employee’s duties, not whether it merely concerns those duties.” Id. Here, Plaintiffs do not
contend that the Union Complaint was made within the scope of the defendants’ duties.

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Nor can the court ignore Defendants’ assertion of rights under the Massachusetts antiSLAPP statute on the theory that the anti-SLAPP statute is a procedural rule that does not apply
in federal court. As the First Circuit explained in considering Maine’s similar anti-SLAPP
statute, the anti-SLAPP statute “is only addressed to special procedures for state claims based on
a defendant’s petitioning activities,” and as to such claims, serves the “distinct function of
protecting those specific defendants that have been targeted with litigation on the basis of their
protected speech.” Godin v. Schencks, 629 F.3d 79, 88-89 (1st Cir. 2010). The statute includes
substantive aspects, including shifting the burden to the plaintiff to defeat the special motion and
determining the scope of the plaintiff’s burden. Id. at 89. These same substantive aspects are
found in Mass. Gen. Laws ch. 231, § 59H. As the Supreme Judicial Court has explained, on
such a special motion,
the party seeking dismissal (the defendant) must demonstrate, through pleadings
and affidavits, that the plaintiff’s claims are based on “petitioning activities alone
and have no substantial basis other than or in addition to the petitioning
activities.” If this showing is not made, the special motion must be denied. If the
showing is made, then the burden shifts to the nonmoving party (the plaintiff) to
demonstrate, again by pleadings and affidavits, that the moving party’s petitioning
activities were “devoid of any reasonable factual support or any arguable basis in
law” and the petitioning activities “caused actual injury to the responding party.”
G.L. c. 231, § 59H. If these showings are made, by a preponderance of the
evidence, then the special motion to dismiss must be denied. If that standard is
not met for one or both elements, the special motion to dismiss must be allowed.
Wenger v. Aceto, 883 N.E.2d 262, 266 (Mass. 2008) (internal citations omitted).
That said, Defendants have not presented their anti-SLAPP arguments by way of a
special motion to dismiss. If Defendants seek to have the court address this defense, they “may
bring a special motion to dismiss” under the statute seeking to demonstrate that the plaintiff’s
claims are based on “petitioning activities alone and have no substantial basis other than or in
addition to the petitioning activities.” Mass. Gen. Laws ch. 231, § 59H. Pomponio may defend
against any such motion by rebutting Defendants’ showing or, to the extent that the claims have
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no substantial basis other than or in addition to petitioning activities, by demonstrating that
Defendants’ activities were “devoid of any reasonable factual support or any arguable basis in
law” and the petitioning activities “caused actual injury” to Pomponio. Id.
Accordingly, Defendants’ arguments relating to Mass. Gen. Laws ch. 231, § 59H are
denied without prejudice to being raised in a special motion to dismiss.
2.

Massachusetts Civil Rights Act Claim (Count VII) Against Moving
Defendants Briggs, Fawkes, MacQuarrie, Dionne, and Downey

To state a claim under Mass. Gen. Laws ch. 12, § 11I, the Massachusetts Civil Rights Act
(“MCRA”), Plaintiffs must allege 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.” Glovsky v. Roche Bros. Supermarkets,
Inc., 17 N.E.3d 1026, 1035 (Mass. 2014) (quoting Currier v. Nat’l Bd. of Med. Exam’rs, 965
N.E.2d 829, 837-38 (Mass. 2012)). The MCRA and § 1983 are parallel statutes intended to
provide coextensive remedies. See Batchelder v. Allied Stores Corp., 473 N.E.2d 1128, 1131
(Mass. 1985). Thus, like § 1983, the MCRA requires an actual deprivation of constitutional
rights. Elwood v. Pina, 815 F.2d 173, 177-78 (1st Cir. 1987). However, state action is not
required for the MCRA to apply, as the MCRA “reaches private conduct.” Nolan v. CN8, 656
F.3d 71, 76 (1st Cir. 2011).
Pomponio has sufficiently alleged the interference with his constitutional rights, so the
court considers whether he has alleged threats, intimidation, or coercion. The additional
requirement of threats, intimidation, or coercion exists because the “Massachusetts legislature
intended that even a direct deprivation of a plaintiff’s rights would not be actionable under the
act unless it were accomplished by means of one of these three constraining elements.” Nolan,
656 F.3d at 77 (internal quotation marks and citation omitted). Whether conduct constitutes a
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threat, intimidation, or coercion is determined by the court applying “the objective standard of a
reasonable person . . . .” Meuser v. Fed. Express Corp., 564 F.3d 507, 520 (1st Cir. 2009) (citing
Haufler v. Zotos, 845 N.E.2d 322, 335 (Mass. 2006)). “Threat” in this context involves “the
intentional exertion of pressure to make another fearful or apprehensive of injury or harm”;
“‘intimidation’ involves ‘putting in fear for the purpose of compelling or deterring conduct’; and
‘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.’” Glovsky, 17 N.E.3d at
1035 (quoting Haufler, 845 N.E.3d at 335).
Pomponio does not sufficiently allege threats, intimidation, or coercion. Pomponio
asserts that the Union Complaint was “drafted in an effort to embarrass” Pomponio and Chief
Rohmer and “force them to resign.” First Am. Compl. ¶ 77 (emphasis added). This allegation
does not involve intimidation, threats, or moral or physical force sufficient to support a claim
under the MCRA. See, e.g., Glovsky, 17 N.E.3d at 1036 (store manager informing signature
gatherer that the supermarket had adopted a policy against signature solicitation does not amount
to threats, intimidation, or coercion, where there was no threat of immediate arrest or forcible
ejection); Planned Parenthood League of Mass., Inc.v. Blake, 631 N.E.2d 985, 990-91 (Mass.
1994) (lecturing, counselling, and picketing against abortion do not interfere with that right
through threats, intimidation, or coercion).
Accordingly, the motion for judgment on the pleading as to Count VII is allowed.
3.

Intentional Infliction of Emotional Distress (Count I) Against Moving
Defendants Briggs, Fawkes, MacQuarrie, Dionne, and Downey

To establish a claim for intentional infliction of emotional distress, Plaintiffs must show
“(1) that [Defendants] intended, knew, or should have known that [their] conduct would cause
emotional distress; (2) that the conduct was extreme and outrageous; (3) that the conduct caused
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emotional distress; and (4) that the emotional distress was severe.” Polay v. McMahon, 10
N.E.3d 1122, 1128 (Mass. 2014). To be “extreme and outrageous,” conduct must go “beyond all
possible bounds of decency” and be “regarded as atrocious, and utterly intolerable in a civilized
community.” Id. “The standard for making a claim of intentional infliction of emotional distress
is very high . . . .” Doyle v. Hasbro, Inc., 103 F.3d 186, 195 (1st Cir. 1996). Outrageousness
encompasses only a “high order of reckless ruthlessness or deliberate malevolence . . . .”
Conway v. Smerling, 635 N.E.2d 268, 237 (Mass. App. Ct. 1994). The mere fact that a
defendant has “acted with an intent which is tortious” is not sufficient to meet the “extreme and
outrageous” standard. Foley v. Polaroid Corp., 508 N.E.2d 72, 82 (Mass. 1987).
The instances of harassment that Plaintiffs allege in the First Amended Complaint do not
amount to “extreme and outrageous” conduct. “Liability for extreme and outrageous conduct
cannot be predicated upon mere insults, indignities, threats, annoyances, petty oppressions, and
other trivialities.” Roman v. Trs. of Tufts Coll., 964 N.E.2d 331, 341 (Mass. 2012). The
harassment alleged falls squarely into the ambit of insults and indignities, which are not as a
matter of law extreme and outrageous.5
The filing of the Union Complaint, which allegedly contained lies about Pomponio in a
concerted effort to have him leave the police department, may, at least at this stage, suffice to
allege extreme and outrageous conduct. See Thomas, 2015 WL 5684074, at *13 (allegations of
an “ongoing effort on the part of [defendant] to have [plaintiff] removed from the police force”

Plaintiffs allege that Alberini placed devil worship materials on Plaintiff Pomponio’s locker,
First Am. Compl. ¶ 87, and explain in their opposition that “[t]he religion-based harassment that
Plaintiff suffered . . . is considered to be an aggravating factor to the extreme and outrageous
element required to support his intentional infliction of emotional distress claim.” Pls.’ Mot.
Opp’n Defs. Briggs, Fawkes, MacQuarrie, Dionne, Downey’s Mot. J. Pleadings at 7 n.4. The
First Amended Complaint, however, does not include a claim as to Alberini for intentional
infliction of emotional distress.
5

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suffice to state extreme and outrageous conduct); Merchand v. Town of Hamilton, No. 0910433-LTS, 2009 WL 3246607, at *1, *9 (D. Mass. Oct. 5, 2009) (intentional infliction claim
stated where allegations that co-worker police officers spread rumors that plaintiff police officer
committed misconduct in order to discredit police chief, with whom plaintiff was closely
associated); see also Tech Plus, Inc. v. Ansel, 793 N.E.2d 1256, 1268 (Mass. App. Ct. 2003)
(defendant making statements that plaintiff was anti-Semitic and persecuted another because of
his Jewish heritage could be extreme and outrageous). Pomponio will face an uphill battle if he
cannot muster evidence to support the truth of his allegations or the level of maliciousness
allegedly displayed by Defendants. See Chakrabarti v. Cohen, 31 F.3d 1, 6 (1st Cir. 1994)
(affirming directed verdict on intentional infliction of emotional distress for defendants who
“misstated facts concerning [plaintiff’s] competence and conduct” in termination of plaintiff and
therefore did not engage in conduct that was “extreme and outrageous”); Conway, 635 N.E.2d at
273 (investigation and reporting of suspected embezzlement not extreme and outrageous where
“founded in reasonable apprehension based on objective facts” and handled “with comparative
graciousness”). But, at this stage, the intentional infliction claim may proceed and the motions
for judgment on the pleadings are denied as to Pomponio’s Count I.
4.

Negligent Infliction of Emotional Distress (Count II) Against All Moving
Defendants

Defendants move for judgment on the pleadings Count II on the ground that they are
immune from negligence claims under the Massachusetts Tort Claims Act (“MTCA”). The
MTCA prevents public employees from incurring liability for negligent conduct occurring within
the scope of their employment. See Mass. Gen. Laws ch. 258, § 2 (“[N]o such public employee
. . . shall be liable for any injury . . . caused by his negligent or wrongful act or omission while
acting within the scope of his office or employment.”). When determining whether an employee
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is acting within the scope of employment, the court is to look to the common law, which test
instructs the court to consider whether the “act was in furtherance of the employer’s work.”
Clickner v. City of Lowell, 663 N.E.2d 852, 855 (Mass. 1996). “Factors to be considered
include whether the conduct in question is of the kind the employee is hired to perform, whether
it occurs within authorized time and space limits, and whether it is motivated, at least in part, by
a purpose to serve the employer.” Id.
Taking the allegations in the First Amended Complaint as true, Defendants were not
acting within the scope of their employment when they signed and disseminated the Union
Complaint.6 Although Defendants identified themselves as employees of the Police Department
in the Union Complaint, they were not engaging in conduct that they were hired to perform as
police officers. Additionally, they were allegedly motivated by a purpose to embarrass and
injure Pomponio and Chief Rohmer, not to serve their employer. First Am. Compl. ¶ 77. The
motions for judgment on the pleadings are therefore denied as to Pomponio’s Count II.
5.

Defamation (Count IV) Against Defendants Briggs, Fawkes, MacQuarrie,
Dionne and Downey

Plaintiffs allege that Defendants defamed Plaintiffs in the Union Complaint. To state a
claim for defamation under Massachusetts law, Plaintiffs must establish that Defendants
published a statement about and concerning Plaintiffs, which was defamatory and false, and that
Plaintiffs suffered economic loss (or that the claim is actionable without proof of economic loss).
Stanton v. Metro Corp., 438 F.3d 119, 124 (1st Cir. 2006). A statement is defamatory if it may
be reasonably understood as “discrediting [Plaintiffs] in the minds of any considerable and

6

Plaintiffs’ opposition limits the negligent infliction of emotional distress count to the writing,
signing, and dissemination of the Union Complaint. The court will therefore do so as well.
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respectable class of the community.” Disend v. Meadowbrook Sch., 604 N.E.2d 54, 55 (Mass.
App. Ct. 1992).
Accepting for purposes of this motion Pomponio’s claim that the statements in the Union
Complaint were false, made with malice and caused in part his termination, he has stated a claim
for defamation. Defendants published in the Union Complaint various statements about (and
naming) Pomponio. These statements, which accused Pomponio of physical assault, threatening
to harm police officers’ families, misusing police resources, spreading rumors of a sexual nature
about a police officer, and pressuring that police officer to file a sexual harassment report, were
defamatory because they would “hold the plaintiff up to scorn, hatred, ridicule or contempt . . . .”
Stone v. Essex Cty. Newspapers, Inc., 330 N.E.2d 161, 165 (Mass. 1975); see also Union Compl.
Accordingly, the motion for judgment on the pleading is denied as to Pomponio’s Count IV.
6.

Tortious Interference (Count VI) Against All Moving Defendants

At the hearing on the instant motions, Plaintiffs conceded that they do not state a claim
for tortious interference. Accordingly, Count VI is dismissed.
7.

Loss of Consortium (Count IX) Against All Moving Defendants

The parties are correct that loss of consortium claims arise only from underlying torts.
See Sena v. Commonwealth, 629 N.E.2d 986, 994 (Mass. 1994) (“As a general rule, a claim for
loss of consortium requires proof of a tortious act that caused the claimant’s spouse personal
injury.”). Thus, where the underlying claim falls, the loss of consortium claim falls. Because all
claims that Paula Pomponio brought except for loss of consortium are dismissed, so is
Pomponio’s loss of consortium claim. But, because this court is not dismissing all of
Pomponio’s underlying claims, the motions as to Paula Pomponio’s loss of consortium claim are
denied.

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8.

Battery (Count X) Against Defendant Fawkes

Pomponio brings a battery claim against Defendant Fawkes for forcefully removing from
Pomponio a sheet of paper, a complaint that was filed against Fawkes. First Am. Compl. ¶ 109.
To state a claim for battery, Pomponio must show that Fawkes “intend[ed] to cause a harmful or
offensive contact with the person of [Pomponio] or a third person, or an imminent apprehension
of such contact, and . . . a harmful contact with the person of [Pomponio] directly or indirectly
results.” Waters v. Blackshear, 591 N.E.2d 184, 185 (Mass. 1992) (quoting Restatement
(Second) of Torts § 13); see also Restatement (Second) of Torts § 18. Courts in various
jurisdictions have held that offensive contact with an object attached to or identified with the
plaintiff’s body can constitute battery. See, e.g., Picard v. Barry Pontiac-Buick, Inc., 654 A.2d
690, 694 (R.I. 1995) (deciding that the intentional touching of the camera that plaintiff was using
to take pictures of the defendant could constitute battery); Fisher v. Carrousel Motor Hotel, Inc.,
424 S.W.2d 627, 629-30 (Tex. 1967) (ruling that grabbing a plate from plaintiff’s hand while
making derogatory comment about plaintiff constituted battery). Pomponio will have to prove
that Fawkes’s actions amounted to an offensive contact battery to prevail on this claim. But, at
this stage, Pomponio has stated a claim that Fawkes intended to harmfully or offensively touch
an object associated with Pomponio’s body. Cf. Workman v. United Fixtures Co., 116 F. Supp.
2d 885, 896-97 (W.D. Mich. 2000) (plaintiff did not show facts at summary judgment stage that
grabbing paper from plaintiff’s hand amounted to battery). Therefore, the motion for judgment
on the pleadings as to Count XII is denied.
IV.

Conclusion
For the foregoing reasons, Richard Briggs, Gregory Fawkes, Robert MacQuarrie,

Michael Dionne, and Allena Downey’s Motion for Judgment on the Pleadings and Christopher

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Alberini and John Driscoll’s Motion for Judgment on the Pleadings are ALLOWED IN PART,
and DENIED IN PART. All counts as to John Driscoll are DISMISSED. As to the remaining
Moving Defendants, all counts brought by Paula Pomponio, except for Count IX (Loss of
Consortium), are DISMISSED. As to the claims brought by Edward Pomponio, Count VI
(Tortious Interference), Count VII (Massachusetts Civil Rights Act), and Count IX (Loss of
Consortium) as to the remaining Moving Defendants are DISMISSED.
It is ordered that:
1. The clerk is directed to terminate John Driscoll as a defendant.
2. Parties shall file a Joint Status Report in light of this decision by the close of business
February 10, 2016.
IT IS SO ORDERED.
February 5, 2016

/s/ Indira Talwani
United States District Judge

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