Cass v. Town of Wayland

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

STEPHEN F. CASS, )

)

Plaintiff, )

)

v. ) Civil Action

) No. 17-11441-PBS

TOWN OF WAYLAND, WAYLAND PUBLIC )

SCHOOLS, WAYLAND POLICE )

DEPARTMENT, PAUL STEIN, BRAD )

CROZIER, ALLYSON MIZOGUCHI, and )

JAMES BERGER, )

)

Defendants. )

___________________________________)

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

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

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

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.

A. Fundraising Guidelines

Throughout the summer, Cass continued to discuss fiscal

concerns about fundraising with now-Principal Mizoguchi. In mid-

August, 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 2014-

2015 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:

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

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

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. 81-

33 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

per athlete. On October 9, 2014, Crozier emailed Cass to follow-

up on the meeting. His email stated, in part:

Thank you for meeting with me on 9/18 regarding an

email you sent . . . . Several days have past and I

wanted to be sure that you were clear that I was

expecting 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.

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

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

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.

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 mini-

empires 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].

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

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.

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. 81-

6 ¶ 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

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.

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, 81-

71. 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

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.

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

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 pre-

set list of local media outlets. He provided a copy of Cass’s

booking photograph to one reporter from the MetroWest Daily News

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

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”)

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 burden-

shifting 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)).

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

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

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

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

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

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

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

1 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.

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

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.

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

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

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

2 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.

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.

3 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.

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

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

4 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.

5 The decision in Nieves v. Bartlett was issued after the parties completed

briefing this motion.

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

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.

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

(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 ill-

advised 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.

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