Johnson v. Town of Duxbury

United States District Court

District of Massachusetts

)

Brian Johnson, Kelley O’Neil, )

Christopher Johnson, Minor )

Child, )

)

Plaintiffs, )

) Civil Action No.

v. ) 16-12578-NMG

)

Town of Duxbury, Matthew Clancy, )

)

Defendants. )

MEMORANDUM & ORDER

GORTON, J.

This suit, brought under 18 U.S.C. § 1983, arises out of a

dispute in which retired Duxbury police officer Brian Johnson

(“plaintiff” or “Johnson”) alleges that the Town of Duxbury

(Massachusetts) and Chief of Police Matthew Clancy

(“defendants”) violated plaintiff’s federal and state rights

under the Fourth Amendment to the United States Constitution and

the Massachusetts Civil Rights Act, M.G.L. c. 12, §§ 11H, 11I.

Plaintiff asserts that defendants violated his civil rights by

ordering him to produce his personal phone records pursuant to

an internal affairs (“IA”) investigation. Plaintiff brings this

suit on behalf of himself and his family members whose phone

records were produced as part of the IA investigation.

I. Background

Brian Johnson is a retired police officer of the Duxbury

Police Department. Following his resignation in 2016, he

brought a suit under § 1983 on behalf of himself and three

family members, alleging that the Town of Duxbury (“the Town”)

and its Chief of Police Matthew Clancy (“the Chief”)

(collectively referred to as “defendants”) violated his civil

rights under federal and state law.1

In November, 2013, following an earlier IA finding of

misconduct against plaintiff, he and his union signed an

agreement with the Town, known as a Last Chance Agreement (“LCA”

or “the Agreement”), whereby plaintiff was demoted and agreed

that there was just cause to dismiss him from the Duxbury Police

Department. The LCA further states that if Johnson engages in

any future serious misconduct, the Chief of Police has just

cause to dismiss him. Termination pursuant to the LCA was to be

unreviewable under the grievance and arbitration procedures of

the current collective bargaining agreement between the police

union and the Town. The actions of the Town were, however, to

remain reviewable on arbitrary, capricious or substantial

evidence grounds.

1 Plaintiff brings the Massachusetts Civil Rights Act (“MCRA”)

claim against Chief Clancy only.

During the Fall of 2015, Johnson was contacted by a

potential witness who claimed to have incriminating evidence

with respect to an ongoing murder/robbery investigation in

Marshfield, Massachusetts. Johnson disputes that he spoke to

the witness but does not dispute that he failed to report to his

commanding officer or to any other law enforcement agency that

he received voicemail and text messages from the witness.

Plaintiff thereafter was subpoenaed to testify before a grand

jury regarding the murder investigation but again failed to

report that fact to his superiors. Upon learning of Johnson’s

reticence, the Chief instructed his Deputy to open an

investigation into the actions of Johnson and another officer.

During this new IA investigation, plaintiff was represented by

union counsel Kareem Morgan of the law firm Sandulli Grace, PC.

In February, 2016, Chief Clancy issued an order for Johnson

to produce phone records as part of the IA investigation.

Attorney Morgan told the Chief that Johnson would comply with

the order only if it were narrowed in scope to records

“reasonably related and germane” to the investigation. The

Chief delayed issuing the order and his retained counsel,

Fernand Dupere (“Attorney Dupere”), negotiated with Attorney

Alan Shapiro of the same Sandulli Grace law firm with respect to

the scope of the phone records to be produced.2 Shapiro agreed

to produce redacted records of Johnson and another officer as

part of the investigation. Chief Clancy issued the revised

order for phone records with which plaintiff complied, albeit

“under protest”. The phone records encompassed information

relating to Johnson and members of his family but Johnson was

the account subscriber for all relevant lines. In July, 2016,

during the pendency of the investigation, Johnson retired from

the Duxbury Police Department. Following his retirement, he

filed this § 1983 suit.

Pending before this Court is defendant’s motion for summary

judgment.

II. Legal Analysis

A. Legal Standard for Summary Judgment

The role of summary judgment is to assess the proof in

order to see whether there is a genuine need for trial. Mesnick

v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991). The

burden is on the moving party to show, through the pleadings,

discovery and affidavits, that there is “no genuine dispute as

to any material fact and that the movant is entitled to judgment

as a matter of law”. FED. R. CIV. P. 56(a). A fact is material if

it “might affect the outcome of the suit under the governing

2 Shapiro testified at his deposition that the entire firm had

been retained to represent the union and union members.

law”. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A genuine issue of material fact exists where the evidence with

respect to the material fact in dispute “is such that a

reasonable jury could return a verdict for the nonmoving party”.

Id.

If the moving party has satisfied its burden, the burden

shifts to the nonmoving party to set forth specific facts

showing that there is a genuine, triable issue. Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986). The Court must view the

entire record in the light most favorable to the nonmoving party

and indulge all reasonable inferences in that party’s favor.

O’Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993). Summary

judgment is appropriate if, after viewing the record in the

nonmoving party’s favor, the Court determines that no genuine

issue of material fact exists and that the moving party is

entitled to judgment as a matter of law. Celotex Corp., 477 U.S.

at 322–23.

B. Defendants’ Motion for Summary Judgment

1. Reasonable Search of Phone Records

Plaintiff contends that defendants’ search of his personal

phone records violated his Fourth Amendment rights because

defendants did not have probable cause for the search.

Defendants respond that the standard of review with respect to a

work-related investigation of an employee’s personal phone

records is one of reasonableness, not probable cause.

Defendants aver that the search was, in fact, reasonable in

inception and scope because the records were 1) specifically

related to an IA investigation, 2) redacted and 3) limited to

nine phone numbers, all of which were germane to the

investigation.

Public employer intrusions of the constitutionally

protected privacy interest of government employees for

legitimate investigations of work-related misconduct are

analyzed under a standard of reasonableness, not probable cause.

O'Connor v. Ortega, 480 U.S. 709, 725 (1987). The subject

search must be reasonable in its inception and scope. Id. at 26.

It is “justified” at inception when there are reasonable grounds

to suspect that the search will reveal evidence that the

employee has engaged in work-related misconduct. Id. Whether a

search is reasonable in scope requires that the search be

related to the objectives of the search and not excessively

intrusive in light of the nature of the misconduct. Id.

Chief Clancy ordered Johnson to produce his personal phone

records as part of an IA investigation. He was informed that

Johnson may have 1) had information relating to an ongoing

murder and robbery investigation and 2) testified at a grand

jury pursuant to a subpoena without notifying his superiors.

Because the Chief had reason to believe that Johnson’s phone

records contained evidence of suspected work-related misconduct,

the search was reasonable in its inception. As to its scope,

the Chief, after some pushback from Johnson’s union counsel,

agreed to limit the scope of the records search. As such, the

resulting intrusion into plaintiff’s personal records was

commensurate with his alleged misconduct and the Court concludes

that the search was reasonable under the Fourth Amendment.

2. Plaintiff Voluntarily Consented to the Search

Defendants submit that plaintiff voluntarily consented to

the search rendering the reasonableness inquiry under the Fourth

Amendment moot. Defendants contend that plaintiff was

represented by two attorneys at the law firm of Sandulli Grace,

PC (which was retained by plaintiff’s union) at all material

times and that counsel negotiated on plaintiff’s behalf as to

the production of the redacted phone records. Defendants

further aver that union counsel had actual and apparent

authority to negotiate for plaintiff and that even if they did

not have such authority, plaintiff ratified their actions by

complying with the agreed production of his records. Finally,

defendants contend that plaintiff’s consent to produce the phone

records was binding on all parties because plaintiff had common

authority over the cell phones of his family members and the

home landline that were subpoenaed.

Johnson does not squarely respond to defendants’ argument

but in a footnote claims that the Chief at one point doubted

whether union counsel had “legal standing” to make

representations on behalf of Johnson. Plaintiff is equivocal as

to whether counsel acted on his behalf and further claims that

his conversations with union counsel related only to his fear of

termination.

Notwithstanding the fact that employer searches of employee

property is subject to a reasonableness standard, voluntary

consent to a warrantless search is a well-recognized exception

to the Fourth Amendment warrant requirement. Schneckloth v.

Bustamonte, 412 U.S. 218, 222 (1973). Consent must be freely

and voluntarily given and courts look at the totality of the

circumstances. Id. at 228. At all material times during the

investigation, Johnson was represented by union counsel who

negotiated with defendants to narrow the scope of the search.

Pursuant to that negotiation, union counsel and Johnson produced

the redacted records. While plaintiff protests that he agreed

to produce his records only because he believed that his job

security was threatened, he proffers no evidence apart from the

LCA itself to support the alleged coercion. Moreover, to the

extent Johnson claims that union counsel had no authority to

consent on his behalf, that argument is moot in light of

defendant’s reasonable belief to the contrary as addressed

below.

Finally, with respect to the privacy interests of the other

named plaintiffs (Johnson’s family members), this Court agrees

that Johnson’s consent to produce relevant phone records is

binding on them. U.S. v. Matlock, 415 U.S. 164, 170 (1974)

(where a third party has common authority, usually through

mutual use, joint access or control over premises or effects,

one party’s consent legitimizes the warrantless search).

Defendants have shown that Johnson was the subscriber for all

relevant lines and thus had common authority over them. As

such, his consent is binding on his other family members.

Accordingly, this Court concludes that no reasonable juror

could find that consent was invalid.

3. Defendant’s Reasonable Belief

Johnson asserts that the Chief had no reasonable belief

that Johnson consented to the search because 1) the Chief

decided to investigate him based on hearsay and rumors and 2)

the Chief questioned whether union counsel had authority to

consent to the search on Johnson’s behalf.

Defendants contend that the Chief reasonably believed that

counsel had authority to consent to the search on Johnson’s

behalf based on the following facts: 1) union counsel stated in

writing that he would be representing plaintiff in the IA

investigation, 2) union counsel assisted in composing Johnson’s

report about his communications with the alleged robbery

witness, 3) union counsel confirmed that Johnson was willing to

provide redacted records, 4) the Chief’s counsel (Dupere)

negotiated the redaction process with a partner from the law

firm retained by the union (Shapiro), 5) the Chief revised his

order for production of Johnson’s records with Attorney

Shapiro’s approval and 6) Johnson complied with that order.

To the extent that plaintiff claims that his lawyer had

neither actual nor apparent authority to consent on his behalf,

consent is nevertheless valid where the officer, under an

objective standard, reasonably believed that the third party had

authority to consent. Illinois v. Rodriguez, 497 U.S. 177, 188

(1990); see also U.S. v. Meada, 408 F.3d 14, 21 (2005) (holding

that the officers’ reasonable belief that defendant’s girlfriend

had joint access to the apartment provided valid consent to the

search). Defendants have demonstrated that attorneys from the

Sandulli Grace firm made written and oral representations that

they represented Johnson as part of the IA investigation.

Johnson complied with the revised order, negotiated by counsel,

and thus ratified counsel’s apparent authority. Accordingly,

this Court concludes that Chief Clancy was reasonable in his

belief that Johnson consented to the search.

4. Qualified Immunity for Defendant Clancy

Johnson contends that qualified immunity does not apply

because no reasonable chief or municipality would have

understood that he willingly consented to search of the subject

phone records.

Defendants respond that the Chief is entitled to qualified

immunity because 1) there is no underlying constitutional

violation and 2) even if the search had violated a

constitutional right by limiting the scope of the order and

accepting the redacted records, no reasonable officer would

believe that the Chief had violated plaintiffs’ constitutional

rights.

To determine whether a law enforcement officer is entitled

to qualified immunity, courts consider whether: 1) plaintiff’s

allegations establish a constitutional violation, 2) the

constitutional right was clearly established at the time of the

alleged violation and 3) a reasonable officer would have

understood the act or omission to contravene a constitutional

right. Limone v. Condon, 372 F.3d 39. This Court finds that

defendant did not violate plaintiff’s constitutional rights by

ordering the search because it was relevant and germane to the

work-place investigation of plaintiff’s alleged misconduct.

Furthermore, assuming arguendo that a violation did occur by

virtue of the negotiated production of redacted records, no

reasonable officer under the circumstances would believe that he

violated plaintiff’s constitutional rights. Johnson’s

alternative claim that the underlying constitutional violation

was the coercion of his consent (due to the LCA) is without

merit and, accordingly, Chief Clancy is entitled to a qualified

immunity defense.

5. Monell Claim

Johnson argues that the Town is liable under a Monell

theory of liability because the Chief was the final decision

maker with respect to the investigation and his decisions

intentionally deprived Johnson of his civil rights.

Defendants deny that a viable Monell claim exists because

plaintiff cannot show that 1) the Chief committed an underlying

constitutional violation or 2) the Town engaged in any

unconstitutional custom, policy or practice. Moreover,

defendants note that, by claiming that the Chief breached the

Town’s policy of observing constitutional rights of the parties

with respect to internal investigations, Johnson concedes that

the Town’s policy is constitutional and thus no Monell claim

survives.

To establish a Monell claim against a municipality,

plaintiff must show 1) plaintiff’s harm was caused by a

constitutional violation and 2) the municipality is responsible

for that violation. Oklahoma City v. Tuttle, 471 U.S. 808, 817

(1985). Johnson cannot establish that the search of his records

or the circumstances surrounding it constituted a constitutional

violation because it was reasonable in its inception and scope.

Nor can plaintiff show that the LCA was inherently coercive.

Those facts alone eliminate plaintiff’s Monell claim.

6. Threats, Intimidation or Coercion under the MCRA

Johnson submits that defendants interfered with his federal

and state rights because the Chief undertook the unreviewable

actions of demoting him in 2013, removing him from patrol to

desk duty in 2016 and ordering him to produce phone records

under threat of termination.

Defendants respond that Johnson was not coerced because he

entered into the LCA voluntarily and thus the potential

disciplinary action resulting from the 2015 IA investigation did

not render the request for records a “threat”. Furthermore,

defendants note that Johnson’s resignation carries a presumption

of voluntariness which he has not overcome.

Parties may sue under the Massachusetts Civil Rights Act

(“MCRA”) when their federal or state rights have been interfered

with through threats, intimidation or coercion. M.G.L. c. 12, §§

11H, 11I. Johnson has not, however, adequately informed the

Court of what constitutional or statutory violation is being

alleged under the MCRA. To the extent that he claims that the

underlying constitutional violation relates to the search, his

claim is deficient for the reasons set forth above. The same is

true to the extent his argument hinges on the supposition that

the LCA is inherently coercive. Courts have upheld disciplinary

agreements such as a “Last Chance Agreement” as “part and

parcel” of collective bargaining agreements (“CBAs”). Connolly

v. Boston Edison Co., No. CIV.A.00-11849-PBS, 2001 WL 575868, at

*4 (D. Mass. May 15, 2001); see, e.g., Int’l Union of Operating

Eng'rs Local 351 v. Cooper Natural Res., Inc., 163 F.3d 916,

919–20 (5th Cir. 1999) (last chance agreement “formed a binding

contract pursuant to the CBA” and must be treated as a

supplement to the CBA); Bakers Union Factory No. 326 v. ITT

Cont’l Baking Co., 749 F.2d 350, 354–55 (6th Cir. 1984)

(agreements reached as part of disciplinary process constitute

formal contractual settlements of labor disputes and should be

construed as part of the CBA).

Moreover, plaintiff entered into the LCA to avoid dismissal

for just cause pursuant to a negative finding in an earlier IA

investigation. Johnson has at times suggested that there was

not “substantial evidence” to support the 2013 IA findings but

at no time has he claimed that the 2013 findings or the

subsequent LCA were invalid or retaliatory. He cannot now

retroactively allege coercion because he faced imminent

disciplinary action in 2016. As such, this Court concludes

there is no valid MCRA claim.

7. Constructive Discharge and Provoked Insubordination

Johnson now proffers a different theory of coercion under

the LCA. He submits that he believed he would lose his pension

or health insurance if he opposed the order to produce phone

records because any adverse decision by the Chief was

unreviewable under the LCA. This, plaintiff asserts, amounts to

a constructive discharge. He also avers that the Chief tried to

provoke him and that but for the Chief’s provocation, he would

not have resigned. In support of that claim, he alleges that

the Chief imposed more severe sanctions than necessary and

insisted on the “warrantless” search in an effort to chill

opposition to the IA investigation and to coerce plaintiff into

early retirement.

Defendants reply that Johnson did not previously allege the

unconstitutionality of the LCA, constructive discharge or

provoked insubordination in his complaint and thus this Court

should not consider such claims under summary judgment. Even if

the new claims were before this Court, defendants submit they

are untenable because plaintiff voluntarily entered into the LCA

and his resignation created a presumption of voluntariness.

This Court has previously declined to consider arguments

raised for the first time in opposition to a motion for summary

judgment. Carroll v. City of Quincy, 441 F. Supp. 2d 215, 224

(D. Mass. 2006). Such a declination is warranted here but, in

the interest of completeness and because plaintiff has alleged

plausible theories of constructive termination and provoked

insubordination, his latter day arguments will be considered.

Under a constructive discharge claim, plaintiff must show

that a reasonable person in his position would have felt

compelled to resign and that he did actually resign. Cherkaoui

v. City of Quincy, 877 F.3d 14, 29 (1st Cir. 2017). The working

conditions must be so onerous, abusive or unpleasant as to leave

a reasonable person with no choice. Id. While plaintiff did in

fact resign, he has failed to proffer any evidence that the

“coerced” circumstances were not of his own doing. Johnson was

found to have violated department policy in 2013 and stipulated

that the Chief had just cause to terminate him. Rather than

being terminated, he agreed to enter into the LCA (with his

union’s approval) and to be subject to higher scrutiny with

respect to future discipline. Plaintiff was demoted as a result

of the 2013 disciplinary action and has proffered no evidence,

other than his own self-serving affidavit, that the subsequent

disciplinary action was retaliatory in any way.

While specifically subject to the LCA, plaintiff failed to

report contact from a person who purported to have information

relating to an ongoing murder and robbery investigation or that

he had been subpoenaed to testify before a grand jury. As a

result, the Chief ordered an IA investigation and the production

of relevant records. Because no reasonable juror could find

that defendants acted in a retaliatory or coercive manner, this

Court concludes that plaintiff was not subject to onerous,

abusive or unpleasant conditions during his employment and that

he has no viable constructive discharge claim.

As to the remaining claim of provoked insubordination, the

First Circuit has recognized that an employer cannot rely on its

employee’s adverse reaction to the employer’s provocation to

justify termination. Trustees of Boston Univ. v. N.L.R.B., 548

F.2d 391, 393 (1st Cir. 1977). Plaintiff has not, however,

demonstrated how his own misconduct of not reporting information

regarding an ongoing murder investigation relates to any

wrongful reaction by the Chief. The IA investigation emanated

from Johnson’s personal conduct. Because he has failed to show

how the Chief provoked him, this Court concludes there is no

viable claim for provoked insubordination.

ORDER

For the foregoing reasons, defendants’ motion for summary

judgment (Docket No. 42) is ALLOWED.

So ordered.

_/s/ Nathaniel M. Gorton____

Nathaniel M. Gorton

United States District Judge

Dated October 23, 2018