Cass v. Town of Wayland et al
Filing
104
Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered.The Court ALLOWS Defendants' motion (Docket No. 76 ) with respect to Counts III, IV, V, and VI and DENIES it with respect to Counts I, II, and VII.SO ORDERED.(Lara, Miguel)
Case 1:17-cv-11441-PBS Document 104 Filed 05/30/19 Page 1 of 44
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
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)
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Plaintiff,
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v.
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TOWN OF WAYLAND, WAYLAND PUBLIC
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SCHOOLS, WAYLAND POLICE
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DEPARTMENT, PAUL STEIN, BRAD
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CROZIER, ALLYSON MIZOGUCHI, and
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JAMES BERGER,
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Defendants.
)
___________________________________)
STEPHEN F. CASS,
Civil Action
No. 17-11441-PBS
MEMORANDUM AND ORDER
May 30, 2019
Saris, C.J.
INTRODUCTION
This case stems from the decision not to renew Plaintiff
Stephen F. Cass’s position as athletic director of the Wayland
Public Schools. Cass asserts that his contract was not renewed
in retaliation for his bringing Title IX concerns about gender
equity and questionable budgetary and fundraising practices in
Wayland’s sports programs to school officials’ attention. Cass
also claims he was arrested and prosecuted for not returning a
used school laptop in retaliation for his exercise of his First
Amendment rights. Defendants contend that he was not renewed for
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entirely performance-driven reasons. Cass has sued the Town of
Wayland, and other institutional and individual defendants,
alleging: unlawful retaliation and discrimination in violation
of Title IX (Count I); unlawful retaliation and termination in
violation of the Massachusetts Whistleblower Act (Count II);
malicious prosecution (Count III); intentional infliction of
emotional distress (Count IV); violations under 42 U.S.C. § 1983
and Mass. Gen. Laws ch. 12, § 11H (Count V); defamation (Count
VI); and intentional interference with contractual relations
(Count VII). Defendants move for summary judgment on all counts.
After hearing, the Court ALLOWS IN PART and DENIES IN PART
Defendants’ motion (Docket No. 76).
BACKGROUND
Unless otherwise noted, the following facts are undisputed.
I. First Year (2013-2014)
In the spring of 2013, Stephen F. Cass applied to be the
athletic director for the Wayland Public Schools (“WPS”) in
Wayland, Massachusetts. During the interview, Dr. Paul Stein,
superintendent of WPS, told Cass about the “need to tighten up
on the athletic budget a little bit.” Docket No. 96-1 at 5. Cass
signed a 1-year employment contract for the 2013-2014 school
year on July 31, 2013.
John Ritchie served as Wayland High School (“WHS”) interim
principal for the 2013-2014 school year. An ongoing source of
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tension between the athletic coaches and Cass was the athletic
department’s budget and the school’s fundraising policy for
sports teams. Principal Ritchie and Assistant Superintendent
Brad Crozier were helpful throughout the fall in supporting
Cass’s efforts to restrict expenditures. On November 24, 2013,
Cass sent Superintendent Stein an email emphasizing his concerns
about the imbalance in fundraising between different sports
teams, and a resulting disparity in funding between the boys’
and girls’ sports teams. On January 6, 2014, Cass provided the
Wayland School Committee with an overview of some of the fiscal
issues facing the athletic department. As reported in the
meeting’s minutes, Stein “praised [Cass’s] efforts in taking on
a vast number of issues related to the athletic program in his
first year as Athletic Director.” Docket No. 81-12 at 2.
In early February 2014, Assistant Principal Allyson
Mizoguchi was chosen as the next principal of WHS, to begin in
July 2014. Throughout the spring, Cass continued to meet
frequently with school officials concerning fundraising, fiscal
issues, and problems with specific coaches. On May 21, 2014,
Cass met with Principal Ritchie, Assistant Principal Mizoguchi,
and Scott Parseghian – head football coach and another assistant
principal at WHS – to review the year.
Ritchie’s term as interim principal ended on June 30, 2014.
At that time, Ritchie provided Cass with a generally favorable
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performance evaluation. He stated that given the challenges Cass
faced, “he did a good job in his first year in many ways, most
particularly in beginning to bring order and control to
expenditures, and imposing certain restrictions on how monies
are spent.” Docket No. 81-20 at 2. But Ritchie also pointed out
two areas where Cass could improve:
The first involves spending significant time trying to
build supportive relationships with the coaching
staff, and indeed with the teaching staff at the
school. The second involves eliciting administrative
support for any initiatives, alterations, or
restrictions that need to be implemented, so that
difficult changes or decisions are not perceived as
emanating solely from the Athletic Director.
Id. One part of this, Ritchie continued, was for Cass to work on
his “tendency to see himself as, and then be seen as, the ‘new
sheriff’ in town.” Id.
II. Second Year (2014-2015)
In mid-June 2014, Cass entered into a second 1-year
employment contract to serve as the athletic director for the
2014-2015 school year. Like the first contract, the second
contract provided that “[i]f the Superintendent intends to
reappoint Stephen Cass at the end of this contract, he will so
notify Stephen Cass of that intention before April 1 of the year
in which the contract would terminate.” Docket No. 81-21 at 2.
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A. Fundraising Guidelines
Throughout the summer, Cass continued to discuss fiscal
concerns about fundraising with now-Principal Mizoguchi. In midAugust, Cass sent an email to select parents of student-athletes
to advise them of an informational meeting later that month to
discuss, among other things, team fundraising policies.
Additionally, at Cass’s request, at the beginning of the 20142015 school year, Mizoguchi sent a letter to all WHS coaches
containing new fundraising guidelines. On September 1, 2014,
Cass sent Mizoguchi an email in which he stated that after
“doing a lot of thinking [the past] weekend over the fiscal
state of Wayland athletics and [his] role in fixing it,” he
“realized that [he was] totally alone on an island regarding the
issue of fiscal responsibility – at odds with select coaches,
schools administrators and . . . parents.” Docket No. 81-28 at
2. Cass told Mizoguchi that he would like a meeting with her,
Stein, Parseghian, and a member of the school committee to
further discuss his concerns.
B. Tension with Coaches
At the same time, Cass’s relationship with some of WHS’s
coaches was becoming strained. In August, Cass had tense
exchanges with Guy Enoch – the WHS girls’ soccer coach – and
Dave Gavron - the WHS boys’ soccer coach. On September 8, 2014,
Mizoguchi emailed Crozier and Stein, stating in part:
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I am struggling with supporting Stephen Cass and could
really use a bit of time with either or both of you to
get some advice. . . . [H]e is frustrating some
coaches both because of these new practices (coaches
are accustomed to having a long leash) and sometimes
because of his interpersonal manner. I have mediated
two difficult conversations between him and a coach in
the last two weeks.
. . .
This is a point of transition for Athletics, and I
have tried to understand and support Stephen with many
of his ideas for change. . . . At the same time, I am
feeling that I am spending a lot of (too much?) time
on Athletics issues.
Docket No. 81-29 at 2.
Two days later, Cass emailed Mizoguchi with additional
complaints about Parseghian, Gavron, and Sean Chase – the
wrestling coach - because of perceived violations of school
policies. Cass also noted Title IX concerns, stating:
We have three people/programs that have consumed so
much of my time and energy over the last two years –
football, wrestling, BSoccer . . . the old guard. The
latter two have been by far the most selfish with
their resources, and football works independently of
the school and is a walking Title IX violation.
Docket No. 81-30 at 4 (alteration in original). On September 12,
2014, Mizoguchi responded to Cass’s complaints in part, and
expressed her view that his last voicemail to her was a “rant”
and that his comments about coaches were “pretty caustic and
unproductive.” Id. at 6; Docket No. 81-31 at 2. She did not
appear to address his Title IX statement. Later that evening,
Mizoguchi forwarded the email chain to Crozier, stating that she
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had “stopped trusting that Stephen’s communication can be civil
or productive.” Docket No. 81-32 at 2.
C. “A Walking Title IX Violation”
On September 15, 2014, a WHS parent emailed Cass his
thoughts in response to the informational meeting Cass held with
select parents in late August. Cass forwarded the parent’s email
to Stein, Crozier, Mizoguchi, and others stating:
Hello All,
I am beyond exhausted being the lightening rod for all
the fiscal problems in athletics. I did amazing things
bringing us close to budget last year – and took lots
and lots of abuse from parents and coaches to make
that happen.
WHS athletics is a walking Title IX violation. The
gender inequity is atrocious and has been so for some
time. However, I cannot bring fairness and equity to
the program by myself.
I would like some public support for [sic] the
administration and school committee on these issues.
Otherwise, this is a losing battle and I’m not going
to fight it alone any longer.
Thank you,
Stephen Cass
Docket No. 81-33 at 2. This was the first time Cass raised Title
IX concerns with Stein and Crozier, although he had voiced his
concerns to Mizoguchi earlier in the month. Stein instructed
Crozier to meet with Cass about the allegations. At the time,
Crozier oversaw WPS’s human resources function, including Title
IX complaints. Crozier immediately responded to Cass: “This is
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the first time that you are expressing a concern about a Title
IX issue. I would like to hear more about the specifics, so that
we can officially look into the concern and address any issues.
Please set up a meeting with me to discuss ASAP.” Docket No. 8133 at 2.
At the time of Cass’s email, the WHS staff handbook
included a discrimination policy which instructed that anyone
with a Title IX complaint “shall bring it to the attention of
the principal as soon as possible,” and that “[t]he principal
will investigate the complaint and respond in writing within
seven days.” Docket No. 91-32 at 2. Then, “[i]f the complaint is
not satisfactorily resolved, it may be forwarded to the
superintendent or his designee who will investigate the
complaint and respond in writing within fourteen days.” Id.
Cass and Crozier met on September 18, 2014 to discuss
Cass’s Title IX concerns. At some point during the meeting, Cass
stated that he raised the Title IX concerns to “cover [his]
ass.” Docket No. 79-3 at 178:11-19; see also Docket No. 92 ¶ 54.
Cass explained that he “was putting Mr. Crozier on notice that
if they fire me for upholding gender equity, they would be in
violation of the law.” Docket No. 91-1 ¶ 99. When Crozier asked
Cass about specific data or instances to support his
allegations, Cass provided an excel sheet he maintained
detailing expenditures broken-out by sports team, but not cost
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per athlete. On October 9, 2014, Crozier emailed Cass to followup on the meeting. His email stated, in part:
Thank you
email you
wanted to
expecting
for meeting with me on 9/18 regarding an
sent . . . . Several days have past and I
be sure that you were clear that I was
some follow-up from the meeting.
At the meeting you provided me with some general
accounting expenses to support the claim of inequity.
I asked for more background on the expenditures . . .
specifically, historical data by sport for both boys
and girls broken out by cost per athlete.
In our meeting, you indicated that the Title IX claim
was more to protect your job, never the less, now that
you have raised the concern, I want to be assured that
the concerns are addressed . . . . I would even
suggest we seek a third party to review the data and
your concerns. Please let me know your thoughts as
soon as possible.
Docket No. 81-34 at 3. Cass did not respond to this email.
On October 28, 2014, Cass emailed Mizoguchi expressing
concern about the Henley Foundation providing the boys’ golf
team, which had won the state tournament, with jackets because
“[i]t’s part of the gender equity piece that is still
problematic and part of the need for things to flow through the
athletic office and not have too many things done
independently.” Docket No. 81-39 at 2. Mizoguchi responded: “Got
it. Add it to the list.” Id.
The school department’s outside counsel, Attorney Gini
Tate, presented a ninety-minute Title IX training on November 4,
2014. Crozier, Mizoguchi, and Cass all attended the training.
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Throughout the fall of 2014 and spring of 2015, Cass
continued to experience tension with some of WHS’s coaches on
non-gender-related issues. For example, he sparred with the
football coach, Parseghian, concerning the cancellation of the
Thanksgiving Day football game due to snow and with the
wrestling coach, Chase, about transportation costs.
D. Evaluation and Non-Renewal
Around February 12, 2015, Mizoguchi provided Cass with a
verbal performance evaluation. On March 31, 2015, Cass emailed
Mizoguchi a document titled “Wayland Athletic Concerns,”
stating, “I feel it is important for me to put all things in
writing going forward since I have been the subject of so many
false accusations by the school administration over the past few
weeks.” Docket No. 81-46 at 2. The document, addressed to
Mizoguchi and Stein, began: “I want to put a number of things in
writing regarding my 20 months in Wayland. I am extremely
frustrated with my role as athletic director; most specifically
by the fact that I am constantly excluded from many of the most
important decisions pertaining to athletics.” Docket No. 91-25
at 4. Cass proceeded to list fourteen ongoing issues he had with
Wayland athletics, many of which dealt with fundraising. The
sixth issue specifically stated: “There is a significant gender
equity issue in athletics resulting from fundraising and gifts
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received from outside agencies that support our athletic
program.” Id.
Superintendent Stein did not notify Cass whether he was
intending to renew Cass’s employment contract prior to April 1,
2015 as specified in the contract. On April 1, 2015, Mizoguchi
recorded notes in her day planner – as she typically did –
related to meetings she had throughout the day. On that date,
she wrote the words “whistleblower,” “Title 9 issue?” and “May 1
letter” in relation to Cass. Docket No. 91-7 at 2.
On April 8, 2015, Mizoguchi held a meeting with Stein,
Crozier, Parseghian, and Assistant Principal Ethan Dolleman to
discuss whether to renew Cass’s employment contract. After the
meeting, Mizoguchi emailed her friend, Wayne Ogden, and stated,
in part:
Good meeting today in the sense that we’re all in
synch. It also became clear that, although it is
ultimately my decision, everyone thinks that the dude
should go for a host of legitimate reasons. I really
feel like Judas here. The next couple of weeks will be
all about crafting my evaluation, meeting with him
initially (probably early next week, with Ethan
[Dolleman]), and then meeting for a final time,
probably with Brad [Crozier]. . . .
Docket No. 91-26 at 3.
On April 13, 2015, Crozier emailed Tate with a draft of
Mizoguchi’s evaluation, writing: “I wanted your thoughts on
Allyson’s evaluation of the [Athletic Director]. There are
similarities between this Eval and last year’s Eval. The plan is
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to give the Eval on May 1st and non-renew later in May.” Docket
No. 81-50 at 2. Mizoguchi met with Cass on April 15, 2015 and
provided him with his performance evaluation. While Mizoguchi
praised Cass as “extremely hard-working and dedicated when it
comes to the varied demands of the position,” she also noted
that “[t]he overarching theme of concern is Mr. Cass’s
leadership approach, which in style and substance has frequently
been ineffective.” Docket No. 91-8 at 2. Mizoguchi quoted the
“new sheriff” observation from Cass’s prior performance
evaluation, and also stated that “[s]ome of his relationships
with coaches are adversarial and have required the involvement
of another administrator in order to reach a comfortable
understanding.” Id. at 3.
Mizoguchi was specifically thinking
of Cass’s relationship with Parseghian, Chase, Gavron, and
Enoch. “Lastly,” Mizoguchi wrote, “Cass’s volatility in his
personal conduct has been of concern. . . . It is for these
reasons that I am uncertain whether to renew Mr. Cass’s contract
for the 2015-2016 school year.” Id.
On April 24, 2015, Cass emailed Stein about the performance
evaluation. He wrote, in part: “I felt the majority of points
[Mizoguchi] made regarding me and my ability were inaccurate and
was quite stunned to learn that my future as Wayland athletic
director is not secure.” Docket No. 91-28 at 3. Stein, on the
advice of counsel, asked Cass to put his concerns in writing.
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On May 5, 2015, Cass sent a six-page letter to Stein
detailing his various complaints. He began by recalling the
interview process and how Stein had told Cass that “the budget
need[ed] to be tightened up,” but did not disclose that the
athletic department exceeded its budget by $60,000 the prior
year. Docket No. 91-29 at 3. Cass stated that “had people on the
search committee been transparent about the magnitude of the
fiscal issues” he “would not have accepted the position.” Id.
Cass went on to state that Mizoguchi’s evaluation of him was
“blatantly false” because he had “a wonderful working
relationship with almost every coach at Wayland” with the
exception of three outlier coaches “who had built up their miniempires over time and were not interested in fiscal
responsibility or constraints on their way of doing things.” Id.
Cass specifically mentioned in the letter that football coach
Parseghian, “publicly opposed measures designed to promote
fiscal responsibility, preserve gender equity, and require
ethical fundraising.” Id. Finally, under the heading “Gender
Equity” Cass wrote:
When I arrived, athletic funds were not being
disbursed in a fair or equitable manner. As mentioned,
football and wrestling were travelled excessively, and
girls did not receive fair treatment (for example,
there were not enough girls track uniforms – the girls
had to share uniforms). Since I arrived, I have
purchased badly needed uniforms for many girls teams:
[list of ten teams].
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Despite my efforts, gender equity has not been
achieved. This is a result of fundraising that has
directed a disproportionate amount of funds into the
coffers of boys teams. In addition, funds from the
Steve Henley Foundation (an athletic fundraising
organization) have ended up mostly with boys teams.
During my time at Wayland, this organization has
purchased championship jackets for golf, boys soccer,
hockey, and wrestling (I’m told but not confirmed). No
girls team has received championship jackets.
I instituted an athletic department policy to prevent
teams from accepting outside funding, but the boys
soccer and wrestling coaches have ignored this policy.
I have issued complaints about this inequity through
emails to Wayland administrators – in 9/2014 and
4/2015.
Id. at 7-8. Three days later, on May 8, 2015, Stein formally
advised Cass, via letter, that WPS would not be renewing Cass’s
contract for another year. The letter did not list a specific
reason for the decision.
E. Letter to Wayland School Committee
On May 19, 2015, Cass sent a letter to the Wayland School
Committee reiterating his concerns previously expressed to
Mizoguchi and Stein. Cass focused on WPS’s “long-standing fiscal
problem” and alleged that the behavior of some coaches ranged
“from unethical to blatantly illegal.” Docket No. 81-56 at 2.
Cass, speaking about the fiscal reforms he implemented, wrote:
As a result of these efforts, I experienced furious
pushback from three coaches of boys’ teams, and a lack
of support from the principal. The more I pushed for
fiscal responsibility and gender equity in athletics
at Wayland, the more pushback I got. . . . It is
apparent that my contract is not being renewed in
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retaliation for my bringing forth these violations of
town, state and federal law and my advocacy for gender
equity.
Id. Cass went on to state that he had obtained legal counsel and
was prepared to pursue legal remedies, but the “bottom line” was
that he wanted to keep his job for another year and hoped the
Committee could help resolve the situation without the need for
litigation. Id. at 3.
The Wayland School Committee met on June 3, 2015 to discuss
the letter and voted to refer Cass’s allegations concerning
Title IX and other violations to the appropriate state and
federal agencies. Subsequently, Tate sent a copy of Cass’s May
19 letter to the Massachusetts Department of Elementary and
Secondary Education, the Office of the Inspector General, the
State Ethics Commission, the Massachusetts Attorney General, and
the U.S. Department of Education’s Office of Civil Rights
(“OCR”). OCR responded on September 24, 2015 that it could not
move forward with a formal investigation without a signed
consent form from Cass. Cass never provided a signed form. He
eventually filed a complaint with OCR in the spring of 2016 but
decided not to pursue the claim on advice of counsel.
In a follow-up meeting on June 22, 2015, the Wayland School
Committee concluded that the decision not to renew Cass’s
contract fell within the purview of the Superintendent.
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III. End of Employment
On June 7, 2015, while he was still an employee, Cass met
two unidentified high school kids around WHS and arranged to
meet them at a liquor store in Wayland. Cass paid them to
distribute approximately one hundred fliers around WHS reading
“STEIN/CROZIER/FRAUD/THE 3 AMIGOS.” Docket No. 92 ¶ 89. The
fliers were investigated by the Wayland Police Department
(“WPD”), but no charges were filed. On June 12, 2015, Cass ran
into Ritchie in the WHS parking lot. Ritchie described Cass’s
demeanor as “an uncontrolled rage” and suggested to Mizoguchi
that she consider putting a safety plan in place. Docket No. 816 ¶ 15.
On June 16, 2015, Reid Lyons – the human resources director
for WPS – emailed Crozier to let him know that Cass’s last day
would be June 23, 2015. Later that day, Crozier emailed Susan
Ginsberg – a systems administrator for WPS – to ask what
equipment had been issued to Cass. Ginsberg responded, “Stephen
has 2 laptops (macbook pro and macbook). I have asked Keith
[Clevenger] to verify that.” Docket No. 81-60 at 2.
On June 17, Lyons emailed Cass to follow-up, stating: “Now
that we agree next Tuesday June 23rd is your last day can you
come to my office around three and drop off your computers, ID
badge and your keys?” Docket No. 81-61 at 2. And the next day,
on June 18, Wayland IT Technician Keith Clevenger emailed Cass
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to retrieve laptop WPS08204, a white macbook that had been
loaned to Cass in February 2014 as a replacement machine while
his school-issued MacBook Pro was being repaired. Cass did not
reply to Clevenger’s email. The parties dispute whether IT
Specialist Mary Barber told Cass in the summer of 2014 that he
could keep the loaner laptop, WPS08204.
Finally, on the afternoon of June 23, on Cass’s last day,
Crozier asked Cass about failing to drop-off his laptops, keys,
and ID badge with Reid. See Docket No. 96-1 at 225:6-9. Cass
responded that he told Reid he would drop his things off the
next day, but Crozier asked him to return the items that
afternoon. See id. at 225:12-13; see also Crozier Dep. Cass
testified:
I gave him my keys. . . . Then he asked for my I.D.
card. I told him I did not have an I.D. card, that I
had lost my I.D. card on the day of the Thanksgiving
Day football game . . . . Then he asked for my
computer. I gave him my computer and my – my MacBook
Pro computer and my power cord. He asked me for my
other MacBook Pro. I said, [m]y other MacBook Pro,
that’s the one that – that’s the one I stepped on the
computer and broke the screen.
Docket No. 96-1 at 225:16-226:8. According to Cass, Crozier
specifically asked about a second MacBook Pro and Cass said he
had stepped on it. At the time, Cass did not offer that he still
had the laptop WPS08204, the loaner computer, because he did not
“even think about any other computer.” Docket No. 91-1 ¶ 129.
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IV. Summer of 2015 and Arrest
A. Interactions with Parents and School Officials
Beginning in August 2015, several incidents involving Cass
were reported to the Wayland Police Department (“WPD”). First,
on August 14, Cass sent two emails to James Lampert, the father
of a WHS student, who had supported the school administration
during Cass’s nonrenewal. In the emails, Cass pretended to be
Lampert’s son’s lacrosse coach contacting coaches at Colgate
University and other NESCAC schools. The emails stated:
“Basically, [the son] is not D1 player even though he may have
been advertised as such. . . . Plus, throw in character issues
and a very high-maintenance father, and it is a recipe for
failure.” Docket No. 81-65 at 7. Cass did not actually send
either email to any college lacrosse coach. Lampert also
received a note in his mailbox he believed came from Cass
stating, “Payback is a bitch.” See Docket Nos. 81-69, 81-70, 8171. Lampert reported these incidents to the WPD, which assigned
Detective Sergeant Jamie Berger to investigate.
Second, on August 24, Cass drove to Camp Caribou in
Winslow, Maine to watch the WHS football team. Cass suspected
the team of violating Massachusetts Interscholastic Athletic
Association (“MIAA”) rules. After gaining access to private
property, and without consent from the team, students, or
parents, Cass took photos of the students’ football practice and
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saved the photos to a flash drive to show to the MIAA. When Cass
learned that the WPD was involved, he disposed of the photos.
Chief of Police Robert Irving received emails from parents
complaining that Cass had taken photos of their children without
permission and assigned the case to Detective Berger. Berger
spoke with Cass about the incident on September 8, 2015. It was
the one and only interaction between Cass and Detective Berger
prior to Cass’s arrest on October 26, 2015.
Third, on August 27, Cass created fliers with “Fire GAV” on
them – in reference to Gavron, the boys’ soccer coach. He
enlisted his brother, David Cass, to distribute them in the WHS
parking lot early that morning before athletic team practices.
Witnesses, believing it was Stephen Cass who distributed the
fliers, reported the incident to the WPD.
Fourth, on August 28, Cass went to the WPS’s offices where
he spoke with Stein. The parties dispute how confrontational the
interaction was, but Stein reported the interaction to Chief
Irving, and shortly thereafter the court issued a no-trespass
order against Cass. After these incidents, Chief Irving was
“concerned about the number of things that were occurring with
Mr. Cass and whether or not this could escalate into more of a
problem than there already was.” Docket No. 79-4 at 46:2-7.
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B. Arrest
On October 22, 2015, WPS Systems Administrator Ginsberg
emailed Crozier that she had been “looking through computer
inventory and found that Stephen Cass’ macbook (the one never
turned in) is still active and that it is showing a location of
Woodland Rd (Stephen lives on Woodland Rd).” Docket No. 81-75 at
12. Ginsberg provided screen shots of the macbook’s location and
activity log, and asked Crozier how to proceed. The screen shots
indicated that for laptop WPS08204, the “Last Inventory Update”
had been performed on October 21, 2015 at 11:05 PM, and the last
time Cass had logged in was on October 19, 2015 at 1:49 PM.
Chief Irving, Stein, and Crozier discussed the laptop at a
meeting that afternoon. Chief Irving was informed that WPS had
issued a loaner laptop to Cass, which WPS had asked Cass to
return at the end of his employment, but that he had not
returned it. Irving also learned that inventory software had
located the missing macbook at Cass’s home. Chief Irving
suggested that the police could investigate. Stein reported the
computer as stolen, and subsequently, Irving assigned the matter
to Detective Berger.
On Monday, October 26, 2015, Detective Berger met with
Crozier, Ginsberg, Clevenger, and others at WHS. School staff
provided Berger with the email messages between Cass and school
officials described above, and location information for laptop
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WPS08204. Relying on this information, Berger prepared an
affidavit in support of an application for a search warrant and
sent the application to the Middlesex District Attorney’s
office, as was standard practice, which approved the
application. The clerk magistrate of the Framingham District
Court approved and signed the warrant that same day.
Detective Berger served the search warrant at Cass’s home
on October 26, 2015. When Cass answered the door, Detective
Berger explained his presence, and Cass directed Berger to the
laptop on the couch. The computer was marked with a tag reading
“PROPERTY OF WAYLAND PUBLIC SCHOOLS/WPS08204.” See Docket Nos.
81-78, 81-79. Detective Berger took possession of the laptop and
placed Cass under arrest for possession of stolen property and
larceny of an item valued over $250.
After the arrest, Berger returned to WPD where another
officer booked Cass. Berger issued a press release which stated:
On Monday, October 26, 2015, the Wayland Public School
District reported that an employee no longer employed
by the district was believed to be in possession of a
computer owned by the district. The Wayland Police
Department conducted an investigation, was issued a
search warrant and recovered the stolen computer.
Subsequently, Stephen F. Cass of Wayland was arrested
and charged with [larceny over $250 and receiving
stolen property over $250].
Docket No. 81-80 at 2. Berger faxed the press release to a preset list of local media outlets. He provided a copy of Cass’s
booking photograph to one reporter from the MetroWest Daily News
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upon request. Berger also posted a copy of the press release and
booking photo to the WPD Facebook page. Chief Irving was away at
this time due to a death in the family; when he returned to
Wayland the next day, he requested that Berger take down the
Facebook post. This was not the first time the WPD had posted
about an arrest on its Facebook page, although posting was
infrequent. Prior to trial, the charge of receiving stolen
property over $250 was dropped, and the felony charge of larceny
over $250 was reduced to a misdemeanor. The trial resulted in a
directed verdict for Cass.
LEGAL STANDARD
Summary judgment is appropriate when “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 factual
dispute precludes summary judgment if it is both genuine and
material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247–48 (1986). An issue is “genuine if the evidence about the
fact is such that a reasonable jury could resolve the point in
the favor of the non-moving party,” and “[a] fact is material if
it has the potential of determining the outcome of the
litigation.” Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782
(1st Cir. 2011) (quotation omitted).
The moving party is responsible for “identifying those
portions of [the record] which it believes demonstrate the
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absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). It can meet this burden
“either by offering evidence to disprove an element of the
plaintiff's case or by demonstrating an ‘absence of evidence to
support the non-moving party's case.’” Rakes v. United States,
352 F. Supp. 2d 47, 52 (D. Mass. 2005) (quoting Celotex, 477
U.S. at 325). If the moving party shows the absence of a
disputed material fact, the burden shifts to the non-moving
party to “set forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S. at 256.
“[C]onclusory allegations, improbable inferences, and
unsupported speculation” are insufficient to create a genuine
issue of material fact to survive summary judgment. Sullivan v.
City of Springfield, 561 F.3d 7, 14 (1st Cir. 2009) (quotation
omitted). When ruling on a motion for summary judgment, the
court “view[s] the facts in the light most favorable to the
party opposing summary judgment.” Rivera–Colón v. Mills, 635
F.3d 9, 10 (1st Cir. 2011).
DISCUSSION
I. Retaliation
Cass asserts that the Town of Wayland and the Wayland
Public Schools did not renew his employment contract as
retaliation for his raising concerns about gender equity in the
athletic program in violation of 20 U.S.C. § 1681 (“Title IX”)
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and the Massachusetts Whistleblower Act, Mass. Gen. Laws ch.
149, § 185, et seq. Defendants argue that undisputed evidence
establishes Cass was not renewed due to his performance as
athletic director, and that a retaliatory motive did not play a
“substantial part” in the employment decision. Because there are
genuine disputes of material fact, Cass’s retaliation-based
claims survive summary judgment.
A. Title IX
Title IX provides that, “[n]o person in the United States
shall, on the basis of sex, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination
under any education program or activity receiving Federal
financial assistance.” 20 U.S.C. § 1681(a). The statute also
prohibits retaliation against third parties, such as teachers
and coaches, because they complained about Title IX violations.
See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174, 181
(2005). Claims under Title IX, like Title VII, involve a burdenshifting framework. See Theriault v. Genesis HealthCare LLC, 890
F.3d 342, 350 (1st Cir. 2018) (“As a general rule, federal
courts employ the McDonnell Douglas burden-shifting framework
when analyzing employment retaliation claims at the summary
judgment stage.”); see also Doe v. Brown Univ., 896 F.3d 127,
132 n.5 (1st Cir. 2018) (holding that a court “may turn to Title
VII for guidance on Title IX claims” (quotation omitted)).
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First, the plaintiff must establish a prima facie case. To do
so, he must show that “[he] engaged in activity protected by
Title IX, that the alleged retaliator knew of the protected
activity, that the alleged retaliator subsequently undertook
some action disadvantageous to [him], and that a retaliatory
motive played a substantial part in prompting the adverse
action.” Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 67 (1st
Cir. 2002). Once the plaintiff has made a prima facie showing,
the “defendant must articulate a legitimate, non-retaliatory
reason for its employment decision.” Calero-Cerezo v. U.S. Dep't
of Justice, 355 F.3d 6, 26 (1st Cir. 2004). If the defendant
meets its burden, then the plaintiff must “show that the
proffered legitimate reason is in fact a pretext and that the
job action was the result of the defendant's retaliatory
animus.” Id.
For purposes of summary judgment, Defendants acknowledge
that Cass engaged in activity protected by Title IX, that school
officials were aware of his complaints, and that the school
subsequently did not renew Cass’s contract. To establish a prima
facie case, Cass must show causation – that a retaliatory motive
played a “substantial part” in prompting the adverse action.
Cass relies primarily on the timing of the non-renewal to
establish his prima facie showing. The First Circuit has held
that “a showing of discharge soon after the employee engages in
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an activity specifically protected . . . is indirect proof of a
causal connection between the firing and the activity because it
is strongly suggestive of retaliation.” Id., 355 F.3d at 25
(quoting Oliver v. Dig. Equip. Corp., 846 F.2d 103, 110 (1st
Cir. 1988)). The Supreme Court has advised that “cases that
accept mere temporal proximity between an employer's knowledge
of protected activity and an adverse employment action as
sufficient evidence of causality to establish a prima facie case
uniformly hold that the temporal proximity must be very close.”
Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001)
(per curiam) (quotation omitted). Cass told school officials
that Wayland athletics was a “walking Title IX violation” in
September 2014, and later sent two letters sent on March 31,
2015 and May 5, 2015. In his March 31 letter to Stein and
Mizoguchi, Cass wrote, “[t]here is a significant gender equity
issue in athletics resulting from fundraising and gifts received
from outside agencies that support our athletic program.” Docket
No. 91-25 at 4. The next day, Mizoguchi wrote in reference to
Cass, “whistleblower,” “Title 9 issue?” and “May 1 letter.”
Docket No. 91-7 at 2. Within a week, on April 8, school
officials decided not to renew him. On May 5, Cass wrote Stein a
long letter which included complaints about gender equity. Three
days later, Stein sent Cass a formal letter indicating that WPS
would not be hiring him for a third year. The temporal proximity
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between these events is sufficient to make a prima facie case.
See Calero-Cerezo, 355 F.3d at 26 (finding that a month between
complaint and adverse employment action was close enough in
temporal proximity to make out a prima facie case of
retaliation).
Defendants have offered legitimate, non-retaliatory reasons
for not renewing Cass’s contract. In their view, he had poor
relationships with certain coaches, he was a high-maintenance
employee who left his supervisor ranting voicemails, and he was
an ineffective leader with a caustic communications style.
There is no “mechanical formula” to determine whether
Defendants’ proffered reasons are pretextual. Billings v. Town
of Grafton, 515 F.3d 39, 55 (1st Cir. 2008) (quotation omitted).
“[D]eviations from standard procedures, the sequence of
occurrences leading up to a challenged decision, and close
temporal proximity between relevant events” can “give rise to an
inference of pretext.” Harrington v. Aggregate Indus.-Ne.
Region, Inc., 668 F.3d 25, 33 (1st Cir. 2012). Here, there are
disputed issues of fact that preclude summary judgment. One
reasonable inference is that school officials perceived Cass to
be a whistleblower, who called a foul on the way certain boys
teams were funded.
The timing of the non-renewal followed
multiple complaints about gender equity. Cass claims that he had
good relationships with most coaches, and that the performance
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evaluation unfairly relied on opinions from specific coaches who
were most resistant to Cass’s reforms and who were the main
cause of WPS’s gender equity problems. While Defendants have
produced evidence of unprofessional, angry behavior on the part
of Cass, viewing the facts in the light most favorable to him,
the Court concludes there is a disputed question as to the
motive for the nonrenewal. See id. at 33 (“Courts should be
especially cautious before granting summary judgment when
pretext and retaliatory animus are at issue.”). Therefore,
Defendants’ motion for summary judgment on Count I is denied.
B. Massachusetts Whistleblower Act
Cass’s state whistleblower claim mirrors his Title IX
claim, with the addition that he also alleges Defendants
retaliated against him because he described improper fundraising
practices. The MWA provides:
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. . . .
Mass. Gen. Laws ch. 149, § 185(b)(1). Similar to Title IX, the
MWA employs a burden-shifting framework at summary judgment. For
a plaintiff to prevail on an MWA claim he:
must show that he engaged in protected activity and
that his participation in that activity played a
substantial or motivating part in the retaliatory
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action. The employer may subsequently avoid liability
by proffering a legitimate, nonretaliatory reason for
the adverse action. 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.
Pierce v. Cotuit Fire Dist., 741 F.3d 295, 303 (1st Cir. 2014)
(cleaned up). Given the similarities between the Title IX and
MWA legal standards, the Court also denies Defendants’ motion
for summary judgment on Count II.
C. Intentional Interference with Contractual Relations
Cass alleges Stein, Crozier, and Mizoguchi intentionally
interfered with his employment contract by writing a negative,
false performance review with a retaliatory motive. Defendants
move for summary judgment, arguing that the school officials are
entitled to qualified privilege as Cass’s supervisors.
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)). Generally, “an employee cannot bring a
claim of tortious interference with an employment contract
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against his own employer.” Pierce, 741 at 304 (citing Harrison,
744 N.E.2d at 632).
However, “a supervisor may be personally liable if he
tortiously interferes with a subordinate's employment
relationship.” Zimmerman v. Direct Fed. Credit Union, 262 F.3d
70, 76 (1st Cir. 2001). The individual defendant-supervisor is
entitled to “qualified privilege” if the employment decision was
“within the scope of his supervisory duties.” Id. In order to
overcome the privilege, a plaintiff has the burden of proving
that the supervisor acted with “actual malice” which was the
“controlling factor in the supervisor’s interference.” Id.
“Proof of actual malice requires more than a showing of mere
hostility.” Id.; see also King v. Driscoll, 638 N.E.2d 488, 495
(Mass. 1994) (explaining that “personal dislike will not warrant
an inference of the requisite ill will”).
Accordingly, the school officials can only be held liable
if Cass proves that actual malice was the controlling factor in
their decision not to renew his contract. Because “it follows
logically that the elements underlying a claim for unlawful
retaliation may be used to show malice when a tortious
interference claim is brought against a supervisor,” Zimmerman,
70 F.3d at 77, the Court leaves it to the jury to determine
whether Mizoguchi, Stein, and Crozier were motivated by
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retaliatory animus and . The Court denies Defendants’ motion on
Count VII.1
III. Arrest and Prosecution
Cass asserts four claims against Defendants stemming from
his arrest in October 2015, none of which survives summary
judgment.
A. Malicious Prosecution
In Count III of the complaint, Cass asserts a claim of
malicious prosecution against all Defendants except Principal
Mizoguchi. He argues that Defendants “actively participated in
initiating legal process against [him] knowing that the criminal
charges they sought were baseless and lacked any probable
cause.” FAC ¶ 110. In Massachusetts, “[t]o prevail on a claim of
malicious prosecution, a plaintiff must prove that the defendant
instituted a prior civil or criminal proceeding without probable
cause and with improper purpose, and that the prior proceeding
terminated in favor of the plaintiff (who was the defendant in
Because Plaintiff’s contract was not renewed, this count is better analyzed
as a claim for interference with advantageous relations. The elements of the
two claims are very similar. See Blackstone v. Cashman, 860 N.E.2d 7, 12–13
(Mass. 2007) (“To make a successful claim for intentional interference with
advantageous relations, a plaintiff must prove that (1) he had an
advantageous relationship with a third party (e.g., a present or prospective
contract or 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.”). Both
causes of action only allow for public officials who are acting within the
scope of their employment to be held liable if they are motivated by actual
malice. See id. at 13.
1
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the prior proceeding).” Billings v. Commerce Ins. Co., 936
N.E.2d 408, 411–12 (Mass. 2010). As an initial matter, the Town
of Wayland, WPS, and WPD are immune from this intentional tort
claim pursuant to Mass. Gen. Laws ch. 258, § 10(c) (preserving
sovereign immunity for municipalities from “any claim arising
out of an intentional tort, including . . . intentional mental
distress, malicious prosecution, . . . libel, slander, . . .”).
With respect to Detective Berger, the claim also fails
because there is no evidence that he lacked probable cause to
either apply for a search warrant or arrest Cass. The absence of
probable cause is “[a]n essential element” of a malicious
prosecution claim, and “[t]he burden of proof on this issue is
placed firmly on the plaintiff.” Seelig v. Harvard Coop. Soc’y.,
296 N.E.2d 825, 827–28 (Mass. App. Ct. 1973). Probable cause in
the context of a malicious prosecution claim “has long been
defined as ‘such a state of facts in the mind of the . . .
(defendant) as would lead a man of ordinary caution and prudence
to believe, or entertain an honest and strong suspicion,’ that
the plaintiff had committed a crime.” Carroll v. Gillespie, 436
N.E.2d 431, 435 (Mass. App. Ct. 1982) (alteration in original)
(quoting Lincoln v. Shea, 277 N.E.2d 699, 702 (Mass. 1972)). It
is an objective standard, and “defendant's conduct must be
adjudged by his honest and reasonable belief at the time he
instituted the complaint rather than by what may turn out later
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to have been the actual state of things.” Lincoln, 277 N.E.2d at
702 (quotation omitted).
In preparing his affidavit in support of a search warrant,
Detective Berger was provided with information from school
officials to support an honest and reasonable belief that Cass
had intentionally failed to return the macbook. First, he was
provided with emails indicating Cass had been asked by Wayland
IT Technician Clevenger to return laptop WPS08204, and to return
his laptops – plural – before leaving his job. Second, System
Administrator Ginsberg provided Berger with readouts indicating
that Cass had logged in to laptop WPS08204 as recently as a few
days ago, and that the computer was located in Cass’s home. It
was reasonable for Berger to rely on this information in
applying for a search warrant for the computer. And the clerk
magistrate approved the search warrant. See Messerschmidt v.
Millender, 565 U.S. 535, 546 (2012) (“[T]he fact that a neutral
magistrate has issued a warrant is the clearest indication that
the officers acted in an objectively reasonable manner, or, as
we have sometimes put it, in objective good faith.”) (quotation
omitted). Additionally, when Detective Berger located the laptop
in Cass’s home, it was reasonable for him to believe that the
laptop’s value exceeded $250, thereby permitting an arrest for a
felony. Objectively, Detective Berger had probable cause for the
search warrant and the arrest.
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In response, Cass contends that WPS IT Specialist Mary
Barber told him he could keep the laptop in the summer of 2014.
While this fact is in dispute, even if true, the information was
never conveyed to Berger. Cass also argues that Berger
unreasonably arrested and charged him since he was later
acquitted. However, a “conviction require[s] the higher standard
of proof beyond a reasonable doubt,” so a criminal acquittal
does not “establish that [Berger] lacked the requisite probable
cause” to arrest Cass at the time. Gillis v. Chase, 894 F.3d 1,
3 (1st Cir. 2018).
The claim also fails as a matter of law because there is no
evidence that Detective Berger acted with actual malice. “To
raise a genuine issue of material fact on the question of
malice, the plaintiff must come forward with some evidence that
would permit a fact finder to conclude that [Berger] (1) knew
there was no probable cause, and (2) acted with an improper
motive.” Sklar v. Beth Isr. Deaconess Med. Ctr., 797 N.E.2d 381,
387 (Mass. App. Ct. 2003). Cass argues that Berger’s failure to
conduct a thorough investigation is evidence suggesting actual
malice. Although Berger should have done an investigation into
the price of the used macbook rather than estimate its value
based on his personal belief, negligence does not rise to the
level of actual malice. See Beecy v. Pucciarelli, 441 N.E.2d
1035, 1039 (Mass. 1982) (noting that even mere “wilful and
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wanton conduct does not constitute malicious conduct”); Sklar,
797 N.E.2d at 387 (“Wanton or negligent behavior is insufficient
without some evidence of an ulterior purpose.”).
Cass’s claim against Stein and Crozier is closer because of
the antagonism between Cass and these officials. Generally
speaking, “[t]he mere transmission of information to a police
officer, who using his or her independent judgment, then pursues
the matter and institutes criminal proceedings, has never been
held sufficient to support an action for malicious prosecution.”
Correllas v. Viveiros, 572 N.E.2d 7, 10 (Mass. 1991). Given the
events over the summer, it can reasonably be inferred that Stein
and Crozier felt ill will towards Cass at the time of his
arrest. Moreover, a jury could reasonably find that asking the
police to search for the macbook was an overly aggressive
response to a former employee’s retention of a used laptop.
Still, the undisputed evidence is that they had probable cause
to believe he refused to return school property despite earlier
requests to do so. Therefore, although the request for a police
investigation is admissible as evidence of malice at trial, the
Court allows Defendants’ motion for summary judgment with
respect to Count III.
B. Violations of § 1983 and Mass. Gen. Laws ch. 12, § 11H
In Count V, Cass asserts claims under 42 U.S.C. § 1983 and
Mass. Gen. Laws ch. 12, § 11H (the Massachusetts Civil Rights
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Act) against Detective Berger.2 Cass argues that Berger’s arrest
violated his rights under the First and Fourth Amendments.
A § 1983 claim “has two essential elements: the defendant
must have acted under color of state law, and his or her conduct
must have deprived the plaintiff of rights secured by the
Constitution or by federal law.” Gagliardi v. Sullivan, 513 F.3d
301, 306 (1st Cir. 2008) (quotation omitted). Additionally, the
plaintiff must show “that the [defendant's] conduct was the
cause in fact of the alleged deprivation.” Id. (quotation
omitted). The MCRA is the state analogue to § 1983 but “is
narrower than § 1983 in that it limits its remedy to conduct
that interferes with a secured right ‘by threats, intimidation
or coercion.’” Nolan v. CN8, 656 F.3d 71, 76 (1st Cir. 2011)
(quoting Mass. Gen. Laws ch. 12, § 11H)).
The First Circuit has “assume[d] without deciding that
malicious prosecution can, under some circumstances, embody a
violation of the Fourth Amendment and thus ground a cause of
action under section 1983.” Nieves v. McSweeney, 241 F.3d 46, 54
(1st Cir. 2001); see also Harrington v. City of Nashua, 610 F.3d
24, 30 (1st Cir. 2010) (“It remains an unanswered question
whether a malicious prosecution claim is cognizable under the
The complaint also asserts claims against the WPD; however, at the hearing
Cass’s counsel conceded that there was no Monell-type claim against the
police department arising from his arrest.
2
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Fourth Amendment and section 1983 . . . .”). A plaintiff seeking
to sustain a malicious prosecution claim under § 1983 must do
more than merely satisfy the elements of the common law tort of
malicious prosecution. See Britton v. Maloney, 196 F.3d 24, 28
(1st Cir. 1999). The “plaintiff must show a deprivation of
liberty, pursuant to legal process, that is consistent with the
concept of a Fourth Amendment seizure.” Harrington, 610 F.3d at
30. Because Cass fails to provide evidence to support his common
law malicious prosecution claim, his § 1983 claim on this basis
also fails.3
“Claims of retaliation for the exercise of First Amendment
rights are cognizable under § 1983.” Powell v. Alexander, 391
F.3d 1, 16 (1st Cir. 2004). To prove a First Amendment
retaliatory arrest claim, a plaintiff must show that he engaged
in constitutionally protected conduct and that he was subjected
to an adverse action by the defendant. D.B. ex rel. Elizabeth
B. v. Esposito, 675 F.3d 26, 43 (1st Cir. 2012). “The plaintiff
pressing a retaliatory arrest claim must [also] plead and prove
the absence of probable cause for the arrest.” Nieves v.
Bartlett, -- S.Ct. --, 2019 WL 2257157, at *6 (2019). “Absent
such a showing, a retaliatory arrest claim fails.” Id. at *8.
Defendants also assert that Detective Berger is entitled to qualified
immunity on Cass’s Fourth Amendment claim. See Docket No. 77 at 23-25.
Because Cass does not provide sufficient evidence of a constitutional
violation, the Court declines to decide whether Berger is immune from any
liability.
3
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But, “[i]f the plaintiff proves the absence of probable cause,
then the Mt. Healthy test governs: The plaintiff must show that
the retaliation was a substantial or motivating factor behind
the [arrest], and, if that showing is made, the defendant can
prevail only by showing that the [arrest] would have been
initiated without respect to retaliation.” Lozman v. City of
Riviera Beach, 138 S. Ct. 1945, 1952 (2018).
There is a “narrow qualification” to the no-probable-cause
requirement “for circumstances where officers have probable
cause to make arrests, but typically exercise their discretion
not to do so.” Nieves, 2019 WL 2257157, at *9. This exception is
necessary because “an unyielding requirement to show the absence
of probable cause could pose a risk that some police officers
may exploit the arrest power as a means of suppressing speech.”
Id. (quotation omitted). Thus, a plaintiff can overcome the
requirement if he “presents objective evidence that he was
arrested when otherwise similarly situated individuals not
engaged in the same sort of protected speech had not been.” Id.
If the plaintiff shows objective evidence, then “the plaintiff’s
claim may proceed in the same manner as claims where the
plaintiff has met the threshold showing of the absence of
probable cause.” Id.
Cass asserts that his protected First Amendment activities
include distributing the “Three Amigos” fliers, distributing
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leaflets stating, “Fire GAV,” and recording the Wayland football
team practice in Maine. See Docket No. 90 at 45. Cass has not
asserted a violation of his First Amendment rights against the
school officials, but to the extent his whistleblowing activity
could be the basis for this claim, that argument has been
disclaimed. See Docket No. 90 at 45 n.18 (stating that his
“whistleblowing activity . . . is not the specific protected
First Amendment activity that gives rise to this claim”).4
Detective Berger had probable cause to arrest Cass, and
that would normally be the end of the analysis under Nieves v.
Bartlett. However, in light of the minor nature of the crime of
failing to return a used laptop in the context of an employment
dispute, an objective inquiry might produce evidence that an
officer would typically exercise his discretion not to arrest
other similarly situated individuals.5 Even if Cass could prove
that the “narrow qualification” applies, his claim still fails
because there is no evidence that Berger was motivated by Cass’s
First Amendment activities as opposed to his retention of the
purloined laptop. While Berger was likely aware of Cass’s
Defendants also argue that Cass’s First Amendment claim is barred by the
Supreme Court’s ruling in Garcetti v. Ceballos that “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 insulate their communications from employer discipline.” 547 U.S. 410,
421 (2006). Garcetti does not appear to apply in this case because all the
asserted protected activity occurred after Cass was nonrenewed.
4
The decision in Nieves v. Bartlett was issued after the parties completed
briefing this motion.
5
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summertime incidents, Chief Irving directed Detective Berger to
investigate the missing laptop based on information from school
officials. Berger applied for and received a search warrant, and
when he served that warrant on Cass at his home, he quickly
found the laptop in question on Cass’s couch, in plain view.
Being aware of protected speech is not sufficient evidence that
it was a substantial or motivating factor in the arrest. Cass’s
MCRA claim also fails as there is no evidence of a
constitutional violation. Therefore, the Court grants summary
judgment for the Defendants on Count V.
C. Defamation
In Count VI, Cass asserts a claim of defamation against the
WPD and Detective Berger for posting his booking photo and
related press release on Facebook. To prove a claim of
defamation, the plaintiff must show “(1) that the defendant made
a statement, concerning the plaintiff, to a third party; (2)
that the statement was defamatory such that it could damage the
plaintiff's reputation in the community; (3) that the defendant
was at fault in making the statement; and (4) that the statement
either caused the plaintiff economic loss or is actionable
without proof of economic loss.” Shay v. Walters, 702 F.3d 76,
81 (1st Cir. 2012) (cleaned up). “[I]n a defamation action a
threshold issue is whether the statement is reasonably
susceptible of a defamatory meaning, and that determination is a
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question of law for the court.” Foley v. Lowell Sun Publ’g. Co.,
533 N.E.2d 196, 197 (Mass. 1989). When determining whether a
statement is defamatory, “the court must analyze the statement
in light of the totality of the circumstances, including the
entire context of the publication.” Shay, 702 F.3d at 81
(quotation omitted).
In this case, the publication of the press release –
whether to the media or on Facebook – was unnecessarily
demeaning and contrary to police policy, but it was not
defamatory. The press release stated that Cass had been arrested
and charged with larceny over $250 and receiving stolen property
over $250. The statement was not false. See Foley, 533 N.E.2d at
197 (addressing the issue of a “police log” column and finding
that when the statement was read in context, “its clear meaning
is to report that [plaintiff] was arrested for assaulting an
officer — and not that he either had been convicted of the
offense or had actually committed the assault”). Indeed, “[t]he
publication of the fact that one has been arrested, and upon
what accusation, is not actionable, if true.” Lambert v.
Providence Journal Co., 508 F.2d 656, 658 (1st Cir. 1975)
(quotation omitted). It is worth pointing out that Chief Irving,
upon returning to work, promptly and wisely took the post down
upon request.
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Cass argues that even if the statement is true,
Massachusetts law provides for an exception when the statement
was made with actual malice. See Mass. Gen. Laws ch. 231, § 92
(“[T]he truth shall be a justification [to a defamation action]
unless actual malice is proved.”). However, the Supreme Judicial
Court has held that application of the statute to a truthful
defamatory statement on a matter of public concern, even if the
statement is malicious, is unconstitutional. Shaari v. Harvard
Student Agencies, Inc., 691 N.E.2d 925, 929 (Mass. 1998). Even
assuming the press release was published with malice, the claim
still fails because the publication of an arrest report
involving the alleged theft of town property is a matter of
public concern. Therefore, the Court allows Defendants’ motion
for summary judgment on Count VI.
D. Intentional Infliction of Emotional Distress
Cass asserts that his claim for intentional infliction of
emotional distress (“IIED”) “did not arise during [his]
employment; rather, it relates to the malicious prosecution and
subsequent defamation of” him. Docket No. 90 at 42 n.15. To
succeed on an IIED claim, Cass must show: “(1) that the
defendant intended to cause, or should have known that his
conduct would cause, emotional distress; (2) that the
defendant's conduct was extreme and outrageous; (3) that the
defendant's conduct caused the plaintiff's distress; and
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(4) that the plaintiff suffered severe distress.” Sena v.
Commonwealth, 629 N.E.2d 986, 994 (Mass. 1994) (citing Agis v.
Howard Johnson Co., 355 N.E.2d 315, 318–19 (Mass. 1976)). “To be
considered extreme and outrageous, the defendant's conduct must
be beyond all bounds of decency and ... utterly intolerable in a
civilized community.” Id. (alteration in original) (quotation
omitted).
Because neither Cass’s malicious prosecution claim nor his
defamation claim survives summary judgment, they cannot provide
a basis for his IIED claim. The police conduct, while illadvised in these circumstances, does not qualify as extreme or
outrageous behavior. See Robinson v. Cook, 706 F.3d 25, 38 (1st
Cir. 2013). And the Supreme Court has held that “a failed
defamation claim cannot be recycled as a tort claim for
negligent or intentional infliction of emotional distress.”
Shay, 702 F.3d at 83 (citing Hustler Magazine, Inc. v. Falwell,
485 U.S. 46, 56–57 (1988)).
Additionally, as public employers, the Town of Wayland,
WPS, and WPD are immune from claims arising from intentional
torts. See Mass. Gen. Laws ch. 258, § 10(c). Therefore, Cass’s
IIED claim fails as a matter of law, and the Court grants
summary judgment for the Defendants on Count IV.
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ORDER
For the reasons stated above, the Court ALLOWS Defendants’
motion (Docket No. 76) with respect to Counts III, IV, V, and VI
and DENIES it with respect to Counts I, II, and VII.
SO ORDERED.
/s/ PATTI B. SARIS
Hon. Patti B. Saris
Chief United States District Judge
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