Lawless v. Town of Freetown

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

DIANE LAWLESS., *

*

Plaintiff, *

*

v. * Civil Action No. 18-cv-11089-IT

*

TOWN OF FREETOWN, by and through *

its Treasurer/Collector, JESSICA *

THOMAS, PAUL SADECK, individually *

and in his official capacity as member of *

the Board of Selectmen, LEE *

BAUMGARTNER, individually and in his *

official capacity as member of the Board *

of Selectmen, and LISA A. PACHECO, *

individually and in her official capacity as *

member of the Board of Selectmen, *

*

Defendants. *

MEMORANDUM & ORDER

March 9, 2021

TALWANI, D.J.

Plaintiff Diane Lawless, a former municipal employee, brought this action against the

town of Freetown (“Freetown” or “town”) and the three members of its Board of Selectmen

(collectively, “Board members”) in their individual and official capacities. In her Amended

Complaint [#42], Lawless alleges libel against the Board members (Count I); violation of her due

process rights under 42 U.S.C. § 1983 (“section 1983”) (Count II) and the Massachusetts

Declaration of Rights (Count III) against Freetown and the Board members; ultra vires acts

against Freetown and the Board members (Count IV); and breach of contract against Freetown

(Count V). Now pending before the court is Freetown and the Board members’ joint Motion for

Summary Judgment [#93]. For the following reasons, the motion is DENIED as to the section

1983 claim (Count II) and the breach of contract claim (Count V) and is GRANTED as to all

other claims.

I. Standard of Review

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate

when “the movant shows that 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 fact is material when, under

the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986); Baker v. St. Paul Travelers, Inc., 670 F.3d 119, 125 (1st

Cir. 2012). A dispute is genuine if a reasonable jury could return a verdict for the non-moving

party. Anderson, 477 U.S. at 248.

The moving party bears the initial burden of establishing the absence of a genuine dispute

of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This burden can be satisfied

in two ways: (1) by submitting affirmative evidence that negates an essential element of the non-

moving party’s claim or (2) by demonstrating that the non-moving party failed to establish an

essential element of its claim. Id. at 331.

Once the moving party establishes the absence of a genuine dispute of material fact, the

burden shifts to the non-moving party to set forth facts demonstrating that a genuine dispute of

material fact remains. Id. at 314. The non-moving party cannot oppose a properly supported

summary judgment motion by “rest[ing] on mere allegations or denials of [the] pleadings.”

Anderson, 477 U.S. at 256. Rather, the non-moving party must “go beyond the pleadings and by

[his or] her own affidavits, or by ‘the depositions, answers to interrogatories, and admissions on

file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S.

at 324 (quoting Fed. R. Civ. P. 56(e)). Disputes over facts “that are irrelevant or unnecessary”

will not preclude summary judgment. Anderson, 477 U.S. at 248.

When reviewing a motion for summary judgment, the court must take all properly

supported evidence in the light most favorable to the non-movant and draw all reasonable

inferences in the non-movant’s favor. Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990).

“Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences

from the facts are jury functions, not those of a judge, [when] he [or she] is ruling on a motion

for summary judgment.” Anderson, 477 U.S. at 255.

II. Factual Background

A. The Defendants

Freetown is a Massachusetts town that operates with a town meeting form of government.

Plaintiff’s Response to Defendants’ Statement of Undisputed Material Facts (“Pl’s SOF Resp.”)

¶ 9 [#107]. Town meeting acts as Freetown’s legislative body,1 while the executive branch

consists of an elected Board of Selectmen (“Board”) together with a Town Administrator. Id. at

¶¶ 9-11; Freetown Charter 1-8 [#95-11]. At the time of the events at issue in this case, Paul

Sadek, Lee Baumgartner, and Lisa Pacheco comprised the Board. Pl’s SOF Resp. ¶¶ 2-4 [#107];

Sadek Aff. [#95-5]; Baumgartner Aff. [#95-6]; Pacheco Aff. [#95-7]. Pacheco served as the

Board’s chair of personnel. Pl’s SOF Resp. ¶ 46 [#107].

B. The Plaintiff and the Terms of her Employment

In June 2013, the Board appointed Lawless as Freetown’s “Treasurer/Collector”

(“Treasurer”) for a three-year term running from July 1, 2013 to June 20, 2016. Pl’s SOF Resp.

1 In a town meeting form of government, a town meeting is both an event and an entity. As an

event, it denotes a gathering of the town’s eligible voters and is referred to as “the town

meeting.” As an entity, it is the legislative body and is referred to simply as “town meeting.” For

example, an eligible voter might attend a town meeting, and town meeting might vote to approve

the budget. See Sec’y of the Commonwealth, Citizen’s Guide to Town Meetings (March 9,

2008), https://www.sec.state.ma.us/cis/cispdf/Guide_to_Town_Meetings.pdf.

¶¶ 1, 17-18 [#107]. According to the job posting for the position, “[t]he Treasurer-Collector shall

have such powers and duties as may be vested in those offices expressly by general or special

law, but shall otherwise report to and be under the direction and supervision of the Town

Administrator.” Disciplinary Hrg. Exhibits 29 [#95-16].

Lawless’ employment agreement stated that the Board agreed to employ Lawless as

Treasurer “to perform all required functions and duties of the position . . . as required by State

Law and/or Town By-laws or the Board.” Employment Agreement 1 [#95-4]. The agreement

provided that she was to work a minimum of thirty-six hours per week, to be scheduled Monday

through Friday, and that she would be available to the town at all times, except during periods of

illness or approved vacation or other leave. Id.

In addition, the agreement specified that, after an initial six-month probationary period,

Lawless was terminable only for cause. Id. It further provided that the Board was required to

give Lawless written notice of the grounds for discipline or dismissal at least five days prior to

any vote to terminate her employment; that any such vote would take place at a meeting of the

Board at which Lawless had the right to be represented by an attorney, to examine witnesses, and

to present evidence; and that the Board recognized the principle of progressive discipline and

would afford Lawless prior notice of shortcomings and an opportunity to correct the same, where

reasonably possible. Id. at 1-2.

Lawless served as treasurer for two years, until her termination in June 2015, discussed

further below. Pl’s SOF Resp. ¶¶ 149-51 [#107].

C. Lockbox Contract

Shortly after her appointment as Treasurer, Lawless implemented a “Lockbox” program

to help Freetown process its tax payments. Id. at ¶ 19.2 She signed a contract with a local

financial institution on November 25, 2013. Lockbox Agreement [#95-14].

D. Cheryl Estrella’s Complaints to the Town Administrator and His March 2014

Notices to Lawless

Cheryl Estrella, who at the time was the senior clerk in the Treasurer’s office and was

Lawless’ subordinate, began complaining about Lawless to Town Administrator Richard Brown3

in February 2014. Pl’s SOF Resp. ¶ 5 [#107]; Plaintiff’s Statement of Undisputed Facts (“Pl’s

SOF”) ¶ 51 [#110]. At some point, Estrella complained to Brown that Lawless had allowed her

husband to come into the office for extended periods of time. Estrella Dep. 84-85 [#109-15]. In

response, in March 2014, Brown directed Lawless via email to cease allowing her husband to be

present in her office. Disciplinary Hrg. Exhibits 31 [#95-16]. Later that month, Brown sent

Lawless another email instructing her that transfers of payments to Lockbox needed Board

approval. Id. at 32. Brown took no further action regarding these matters. Pl’s SOF ¶ 51 [#110].

Brown also told Estrella that she should not complain to him every time she had a

disagreement with Lawless. Id. Estrella then made complaints about Lawless directly to Sadeck

and Baumgartner. Id. at ¶ 52.

2 A Lockbox is a third-party collection and processing service provided by a financial institution

to accelerate the flow of funds to the treasury. Under the service, payments made by taxpayers

are directed to a special post office box instead of going to the town. The financial institution

then retrieves the payments, processes them, and deposits the fund directly into the town’s bank

account. See Lockbox Contract [#95-14].

3 Brown was the Town Administrator when Lawless was hired in June 2013 and remained in that

position until some point during the summer of 2014. Healey Dep. 36 [#109-11].

E. April 2, 2014 Executive Session

On April 2, 2014, the Board held an executive session, attended by the Sadeck, Pacheco,

Baumgartner, and Town Counsel.4 Apr. 2, 2014 Exec. Session Minutes [#95-17]. During this

executive session, Sadeck stated that, while paying his tax bill, he noticed that a Lockbox

program had been implemented despite the program not having been authorized by the Board. Id.

Baumgartner raised a concern about Lawless’ husband having been in her office. Id. Sadeck said

that he had also received a report that Lawless had behaved unprofessionally toward another

town employee. Id. Baumgartner then said that he did not trust Lawless, and Pacheco and Sadeck

agreed. Id. Pacheco suggested that the Board hold a disciplinary hearing, and Sadeck stated that

Lawless was appointed, not elected, and that “is the end of story.” Id. Town Counsel responded

that the Board could not hold a disciplinary hearing until Lawless had been given a directive

about her behavior and then violated it. Id. At the end of the executive session, the Board voted

to hold an executive session with Lawless to discuss these issues. Id.

F. April 15, 2014 Executive Session

That executive session was held on April 15, 2014. Apr. 15, 2014 Exec. Session Minutes

[#95-19]. Lawless was present with her attorney, and Brown and Town Counsel were also in

attendance. Id. Sadeck confronted Lawless about implementing Lockbox without Board approval

and asked whether she had signed a contract with a bank. Id. Lawless responded that she had

filled out forms but did not know whether there was a contract. Id. Sadeck also said that he

believed Lawless to have provided incorrect information to a newspaper in response to a public

4 Under the Massachusetts open meeting law, G. L. c. 30A, §§ 18-25, all meetings of public

bodies must be open to the public. However, certain topics may be discussed in executive, or

closed, session, including “the discipline or dismissal of, or complaints or charges brought

against, a public officer, employee, staff member or individual.” Id. § 21.

records request. Id. Lawless, through her attorney, responded that she had never previously been

made aware of this issue. Id.

Next, Sadeck expressed his concerns about Lawless’ husband having been in her office

and having access to sensitive town records. Id. Lawless stated that her husband had, on several

occasions, come to pick her up and spent a few minutes in the office while waiting for her to

wrap up her work, but that she had never given him access to town meetings or records. Id.

Sadeck also said that Lawless had incorrectly filled in her timesheet and noted that she was not

entitled to compensatory time and that she needed to inform the Town Administrator in advance

if she intended to work on weekends. Id. Finally, Sadeck raised an issue concerning paycheck

distribution and stated that he would not tolerate Lawless “thr[owing] her employee under the

bus” for her mistakes. Id.

After Lawless had left the executive session, the Board voted to send her a letter

recapping the meeting and providing her with directives as to her future conduct but reserving

further inquiry regarding the Lockbox issue. Id. In response to Sadeck’s question of where they

would go from there, Baumgartner stated that he would “never get past the trust thing” and

expressed his belief that Lawless “was not truthful” with the Board. Id. The Board sent Lawless a

letter on April 22, 2014, directing her to keep her hours “consistent with the regular hours that

Town Hall is open”; to notify the Town Administrator if she needed to work beyond normal

hours or planned to be absent from work; to schedule her vacation in advance with the Board; to

seek approval of the Board before implementing any changes to town business, policies, or

procedures; to behave courteously toward citizens and other town employees; and not to allow

her husband or other personal visitors into her office at any time. Apr. 24, 2014 Letter [#95-20].

The letter advised Lawless that failure to comply with the expectations and directives in the letter

could result in disciplinary action, including possible termination. Id.

G. Approval of the Lockbox Contract

At some point prior to July 2014, the Board ratified the Lockbox contract. Jun. 8 Hrg. Tr.

86 [#95-9]; Healey Dep. 38 [#109-11].

H. Jack Healey becomes Town Administrator

Jack Healey became the Town Administrator at some point during the summer of 2014.

Healey Dep. 36 [#109-11]. He was not advised until an executive session in November 2014 of

any concerns regarding Lawless. Pl’s SOF ¶ 61 [#110].

I. November 17, 2014 Executive Session

The Board held an executive session with Healey on November 17, 2014, to address the

fact that Healey had given Lawless the password to Estrella’s computer. Nov. 17, 2014 Exec.

Session Minutes [#95-21]. Healey apologized, and Pacheco said that she did not want Healey to

be taken advantage of. Id. She went on to say that the Board did not trust Lawless, and

Baumgartner said that, in his opinion, Lawless “should be gone.” Id.

J. Conflict with Jessica Thomas

On January 26, 2015, Jessica Thomas replaced Estrella as the senior clerk in the

Treasurer’s office. Pl’s SOF Resp. ¶¶ 5-6, 53 [#107]; Jun. 8 Hrg. Tr. 19-20 [#95-9]. Shortly after

Thomas started, Lawless instructed her not to speak about her work with Estrella (who had

moved to the Town Clerk’s office) or Christine Jussaume, the assistant tax collector. Pl’s SOF

Resp. ¶ 54 [#107].

On March 24, 2015, Lawless asked Thomas to organize certain tax payments. Id. at ¶ 55.

Thomas began to sort them but was stopped by Lawless, who wanted them organized a different

way. Id. at ¶ 56. At that point Jussaume came into the office, and Thomas asked her how the

payments should be sorted. Id. at ¶ 57. This led to a conflict between Thomas and Lawless,

which culminated in Thomas crying and going to the Town Administrator’s office to report

Lawless’ conduct, with Lawless following behind her. Id. at ¶¶ 58-61.

When Thomas and Lawless reached the Town Administrator’s office, Healey was not

there. Id. at ¶ 62. Ali Golz, the Board’s administrative assistant, called Sadeck, who spoke with

both Thomas and Lawless over the phone. Id. Sadeck asked Golz to call Pacheco, who oversaw

personnel matters, to let her know what had happened. Id. at ¶¶ 62-63. Pacheco instructed Golz

to tell Lawless to go home and not to come into the Town Hall the next day. Id. at ¶¶ 63-64.

Lawless returned to her office. Id. at ¶ 65. Early the next morning, on March 25, 2015,

she came into the Town Hall and downloaded confidential files onto flash drives. Id. Upon

learning that Lawless was in the Town Hall, Healey called her and told her to leave the building

immediately. Id. at ¶ 66. Lawless complied but took the flash drives with her. Id. at ¶ 67.

K. Administrative Leave

The following day, Healey placed Lawless on paid administrative leave “pending review

of recent events.” Notice of Admin. Leave [#96-3]. The notice stated that, during the period of

her administrative leave, she was not to perform any of the duties of her position or take any

action on behalf of the town, unless directed to do so by the Town Administrator or the Chair of

the Board. Id. The notice also specified that Lawless was being placed on leave because of

Thomas’ complaint against her and because, despite being instructed on March 24, 2015, not to

report to work the next day, she had returned to the office on March 25, 2014 and had copied

town files onto a flash drive without authorization. Id. Finally, the notice requested that Lawless

immediately return the flash drives and not make copies of the data contained on them. Id.

While Lawless was on leave, Healey asked her to turn over the town’s bank and financial

software passwords to enable the town to perform its financial obligations. Pl’s SOF Resp. ¶ 80

[#107]. Lawless refused to do so, stating that this was to protect the town because, by statute,

only a town’s bonded treasurer may bank on behalf of the town. Id. at ¶ 82; see also G. L. c. 41,

§ 35. Lawless conducted bank transfers and processed payroll at Healey’s direction during her

administrative leave. Pl’s SOF Resp. ¶ 84 [#107].

L. Solicited Complaints Against Lawless

At some point shortly after the incident between Lawless and Thomas, Pacheco solicited

written submissions from certain Freetown employees regarding their working relationships with

Lawless. Pl’s SOF Resp. ¶ 70 [#107]. Thomas and Jussaume submitted letters to the Board on

March 31, 2015, and Estrella sent a lengthy email to Pacheco, Healey, and Golz on April 3,

2015. Disciplinary Hrg. Exhibits 43-53 [#95-16].

M. April 7, 2015 Executive Session

In an executive session on April 7, 2015, the Board discussed their concerns about

Lawless and what action to take going forward. Apr. 7, 2015 Exec. Session Minutes [#96-4].

Town Counsel noted the absence of a discipline history and advised the Board that the town

typically would put a performance improvement plan in place for four to five months or try to

negotiate a separation agreement. Id. Pacheco stated that she had already told Lawless to stop

making decisions without Board input and not coming in on off days and that Lawless had not

complied. Id. Town Counsel then noted that, if the Board had had these concerns for such a long

time, the response from Lawless would be to ask why the Board had waited so long to take any

action. Id. Baumgartner said that Lawless had lied to the Board at two open meetings, and

Sadeck stated that his major issue was her interpersonal skills. Id. Pacheco asserted that she

thought they had cause for termination. Id. The Board members proceeded to discuss various

issues, including the steps for hiring an interim Treasurer. Id. At the end of the meeting, the

Board voted to hold a “termination hearing” for Lawless. Id.

Following that meeting, on April 10, 2015, Healey sent Lawless another letter continuing

her administrative leave. Renewed Notice of Admin. Leave [#96-5]. The notice also requested

that she turn over any equipment issued to her by the town and informed her that on April 29,

2015, the Board would meet to vote to hold an executive session to hear charges made against

her. Id.

N. April 29, 2015 Executive Session

The meeting notice for the April 29, 2015 executive session was posted on April 27, 2015

and stated that the purpose of the meeting would be “to hear complaints or charges against Diane

Lawless as an employee of the Town of Freetown.” Disciplinary Hrg. Exhibits 12 [#95-16]. At

Lawless’ request, the meeting was held in open session rather than executive session. Apr. 29,

2015 Open Session Minutes [#96-6]. However, no hearing of complaints or charges took place at

that time. Id. Rather, after a brief procedural discussion, the Board unanimously voted to execute

a notice of disciplinary hearing, which had been previously drafted by Town Counsel and

presented to the Board. Id.

The next day, on April 30, 2015, Baumgartner sent Lawless the notice of disciplinary

hearing. Notice of Disciplinary Hrg. [#96-7]. The notice outlined eight charges against Lawless:

(1) that she had behaved unprofessionally toward town employees, citizens, and vendors; (2) that

she had refused to turn over the bank passwords over to Healey; (3) that, in 2014, she had misled

the Board regarding the implementation of the Lockbox program; (4) that after being placed on

administrative leave, she had downloaded confidential town files onto flash drives and (5)

returned to the Town Hall despite instructions to remain home; (6) that she had improperly

disposed of town real estate records in September 2014; (7) that she had taken vacation in June

2014 without advising the Board; and (8) that she had failed to provide information to a town

insurance vendor in June 2014. Id.

O. Disciplinary Hearing

The disciplinary hearing was held over three days, on June 8, June 12, and June 22, 2015.

Jun. 8 Hrg. Tr. [#95-9]; Jun. 12 Hrg. Tr. [#95-13]; Jun. 22 Hrg. Tr. [#96]. Lawless, who was

represented by counsel, waived her right to have the hearing held in executive session and agreed

that it would be held in open session. Jun. 8 Hrg. Tr. 2 [#95-9]. At the beginning of the first day

of the hearing, Lawless and her counsel were advised that, after the town had presented its

evidence, Lawless would have the opportunity to call her own witnesses and to present her own

evidence. Id. at 4-6. Lawless and her counsel were also provided with copies of the exhibits that

that Freetown intended to use to support the charges against Lawless, including the letters from

Thomas and Jussaume and the email from Estrella.5 Id. at 10-17.

Town Counsel called Thomas as the first witness, and she testified that Lawless had

prohibited her from speaking to other town employees about her work and that Lawless had

mistreated Jussaume. Id. at 16, 22-27. Thomas also recounted the events of March 24, 2015,

which had led up to Lawless’ placement on administrative leave. Id. at 29-41.

Next, Healey testified that Lawless’ performance as Treasurer had been “very good” but

that she had had interpersonal issues with other town employees. Id. at 68-69. He stated that,

upon learning that Lawless was in the Town Hall on March 25, 2015, after having been

instructed not to come in, he called her and told her to leave the building. Id. at 71. He also said

that he had been informed by the town’s IT personnel that, on the night of March 24, 2015, as

5 Lawless’ counsel objected to these exhibits partway through the second day of the hearing, as

well as an exhibit containing correspondence between Sadeck and Healey, on the grounds that

they were hearsay and that the town had not called Estrella or Jussaume as witnesses that

Lawless’ counsel could cross-examine. Jun. 12 Hrg. Tr. 71-72 [#95-13]. The objection was

overruled on the ground that Lawless could have subpoenaed the witnesses to testify. Id. at 75.

well as the next morning, Lawless had copied town files onto flash drives. Id. at 72-73. Finally,

he explained that Lawless’ refusal to turn over the town’s bank and financial software passwords

had made it challenging for the town to perform its financial obligations for approximately a

month and a half. Id. at 74-76. On cross-examination, Healey also testified that certain public tax

records had been improperly disposed of and that the Board had a policy that town employees

not work nights or weekends in the Town Hall. Id. at 94-100, 102.

Lawless testified over the second and third days of the hearing. Jun. 12 Hrg. Tr. [#95-13];

Jun. 22 Hrg. Tr. [#96]. By her account, when she began working as Freetown’s Treasurer, she

inherited an ineffective staff and an inefficient system, and she received inadequate training. Jun.

12 Hrg. Tr. 14-38, 54-65 [#95-13]. She explained that, to make her office more efficient, she

implemented the Lockbox program, but that when she initially met with the bank and signed a

contract, she believed that it was only to test the program, not to fully implement it, and therefore

did not seek Board approval. Id. at 39-45. Although Lawless conceded that the Board “felt like

they were in the dark, that [she] was doing this without their permission,” she explained that she

had moved forward with the implementation because Town Administrator Brown had told her

that the Board approved. Id. at 46-52. She noted further that, in the end, the Board had formally

approved the Lockbox program. Id. at 53.

As to the other charges, Lawless stated that, although she knew that her contract did not

include compensatory time, she had not known until the April 15, 2014 executive session that

she was not permitted to leave the Town Hall during work hours without requesting vacation. Id.

at 79-86. She also gave her own accounts of the circumstances surrounding the allegedly

improper disposal of town records and her failure to provide information to a town insurance

vendor. Id. at 100-04, 123-28. She acknowledged that she had instructed Thomas not to speak

with Estrella or Jussaume about her work and that, on March 24, 2015, she felt that Thomas was

“going over [her] head” by asking Jussaume for advice, leading to the confrontation between

them. Jun. 22 Hrg. Tr. 6-9, 16-19 [#96]. And, finally, she reiterated that she had taken town files

home with her on the flash drives because she wanted to be able to continue her work from

home, having been instructed not to come into work the next day, and that she refused to turn

over the banking passwords because it would have violated Massachusetts law. Id. at 27-29, 36,

38. Much of her remaining testimony on direct examination was focused on the April 15, 2014

executive session. Jun. 12 Hrg. Tr. 78-147 [#95-13].

Following Lawless’ testimony, Lawless’ counsel and Town Counsel gave closing

statements, and Town Counsel recommended that the Board not pursue the charges that Lawless

had improperly disposed of town records in September 2014 and that she had taken vacation in

June 2014 without advising the Board. Jun. 22 Hrg. Tr. 76-96 [#96]. The Board then began to

deliberate, and Sadeck raised Lawless’ history of interpersonal issues with Freetown employees.

Id. at 98-104. Town Counsel responded by reminding Sadeck and the rest of the Board that their

votes should be based only on the evidence presented during the hearing rather than on events

that had transpired previously. Id. at 104. The Board then voted, without further deliberation or

factual findings on any of the remaining charges, to sustain six of the eight charges against

Lawless, finding that she had acted unprofessionally towards Freetown employees and vendors;

failed to turn over the bank passwords to Healey; misled the Board regarding the Lockbox

program; downloaded confidential town files onto flash drives; returned to the Town Hall despite

instructions to remain home; and failed to provide pension information to a town insurance

vendor. Id. at 105-08. Pacheco then moved to terminate Lawless, and the Board voted in favor.

Id. at 115.

The Board sent Lawless a written notice of termination on June 22, 2015, and her

termination became effective on June 26, 2015. Termination Letter [#96-11].

III. Discussion

A. Libel

Lawless’ first claim alleges libel against the Board members based on their publication of

Estrella’s email by placing it into the public record as an exhibit at the disciplinary hearing. Am.

Compl. ¶¶ 152-85 [#42]. Lawless identifies six allegedly defamatory statements in the email.6

However, the libel claim is barred because the Board members were conditionally privileged to

make the statements.

6 The statements were:

(1) “[A]ll I could hear all day was Ms. Lawless socializing on the phone all day long, and

shopping online for ‘beads’ for her jewelry making business,” Am. Compl. ¶ 158

[#42];

(2) “I believe Ms. Lawless demonstrates paranoid behavior and has serious mood swings

that could be associated as severe bipolar disorder or some other form of mental

handicap,” id. at ¶ 165;

(3) “[Lawless] made mention many times on how she remodeled one of her offices at

another city/town and couldn’t wait to ‘paint our office with dollar signs.’ She also

made mention that she had bullet proof glass installed when she was a collector but

that we wouldn't be getting that in Freetown[, and] that’s why she moved her desk

around the corner so we ([Jussaume and] myself) would ‘be the first ones in the line

of fire,’” id. at ¶ 169;

(4) “[I]t has crossed my mind and the mind of some of my other coworkers that Ms.

Lawless will show up at Town Hall with that gun her husband bought her,” id. at

¶ 171;

(5) “I witnessed Ms. Lawless retrieve the Workers Compensation Binder off the top of

the filing cabinet, that Ali Golz had left with her, per her request a few days earlier,

and put it in her briefcase bag. She had often taken materials home with her but this

time I felt very uneasy because I thought there might have been insurance quotes in

that binder, and seeing that her husband was an insurance salesman, to me there was a

conflict of interest or an ethics violation,” id. at ¶ 174; and

(6) “[I]n March 2014, Ms. Lawless had somehow been able to take pretty much the

whole month off – without putting in for sick/vacation time,” id. at ¶ 177.

“A person is conditionally privileged to publish a defamatory statement if the publisher

and the recipient share a common interest in the subject, and the statement is reasonably

calculated to further or protect that interest.” Lawless v. Estrella, 99 Mass. App. Ct. 16, 22

(2020) (citing Downey v. Chutehall Constr. Co., 86 Mass. App. Ct. 660, 665 (2014)). The

privilege is particularly important “in the context of workplace investigations” to “ensure that

employees are able to report both actual and suspected misconduct without fear of being held

liable for claims of defamation. Accordingly, the conditional privilege will protect the disclosure

of otherwise defamatory information ‘when the publication is reasonably necessary to serve the

employer’s legitimate interest in the fitness of an employee to perform his or her job.’” Id. at 23

(quoting Sovie v. North Andover, 742 F. Supp. 2d 167, 174 (D. Mass. 2010)).

In this case, the Board members published the email, which was obtained in response to

an inquiry regarding employees’ working relationships with Lawless, as an exhibit at Lawless’

disciplinary hearing which concerned the same issue. This clearly falls within the ambit of

conditionally privileged communications, where the Board functions as Freetown’s executive

branch and has a direct interest in monitoring town employee performance.

Lawless contends that, even if publication of the email was conditionally privileged, the

Board members lost the privilege through abuse. Pl’s Opp. 32 [#115]. The conditional privilege

can be lost through “unnecessary, unreasonable or excessive publication of the defamatory

matter” or by publication of defamatory information with “actual malice.” See Galvin v. New

York, N.H. & H.R. Co., 341 Mass. 293, 297-98 (1960). It can also be lost if the defendants knew

that the information was false or had no reason to believe it to be true. See Sklar v. Beth Israel

Deaconess Med. Center, 59 Mass. App. Ct. 550, 558 (2003). The burden of proving abuse of the

privilege is on the plaintiff. See Dragonas v. Sch. Comm. of Melrose, 64 Mass. App. Ct. 429,

438 (2005).

Here, there is no evidence that the email was unnecessarily, unreasonably, or excessively

published. The email did include Estrella’s opinions that may have had no place in the

disciplinary hearing, but the opinions are not actionable. In any event, the disciplinary hearing

would have taken place in executive session, but Lawless “elected to have th[e] hearing

conducted in the public eye, in open session.” Jun. 8 Hrg. Tr. 9 [#95-9].

As to malice, “it is not enough to show that the defendant merely disliked the plaintiff or

that such animosity was part of the defendant’s motivation.” Dragonas, 64 Mass. App. Ct. at 439

(emphasis added). “Instead, the conditional privilege is lost only ‘if the publication is not made

chiefly for the purpose of furthering the interest which is entitled to protection.’” Id. (quoting

Ezekiel v. Jones Motor Co., 374 Mass. 382, 390 n.4 (1978)) (emphasis original). Where the

email was gathered as part of the town’s collection of evidence regarding Lawless’ working

relationships and where the Board members intended the hearing to be conducted in executive

session and conducted it in open session only at Lawless’ request, the court concludes that—

whatever ill will the Board members may have harbored towards Lawless—their primary

motivation for publication of the email was to offer evidence regarding her performance as

Treasurer and her working relationships with her coworkers in the disciplinary hearing, which

are protected interests.

Finally, Lawless has not met her burden of demonstrating that the Board members knew

that Estrella’s statements were false or had no reason to believe them to be true. Lawless focuses

largely on the fact that none of the Board members verified any of Estrella’s allegations, but

“[i]mposing a duty of affirmative verification is not consistent with the conditional privilege. The

privilege is applicable if the person making the allegedly false and defamatory statement views

the statement as reasonably grounded.” Fowler v. Sohio Oil Co., No. 88-2533-WD, 1990 WL

320042, at *5 (D. Mass. Jan. 9, 1990) (citing Foley v. Polaroid, Corp., 400 Mass. 82, 95 (1987)).

Because the court concludes that the Board members’ publication of email was

conditionally privileged and that they did not lose the privilege through abuse, summary

judgment is warranted as to Count I.7

B. 42 U.S.C. § 1983

Lawless’ second claim alleges a violation of her due process rights under section 1983

against the Board members and Freetown. Am. Compl. ¶¶ 186-224 [#42]. Specifically, she

claims that her disciplinary hearing was procedurally inadequate because (1) the town’s

witnesses were not sworn in; (2) the Board admitted hearsay evidence; (3) the outcome of the

disciplinary was predetermined; and (4) the Board did not afford her a constitutionally adequate

post-termination hearing. Pl’s Opp. 2-26 [#115].

7 To the extent that Lawless’ libel claim is based on the second, fourth, and fifth allegedly

defamatory statements, the claim is also barred by collateral estoppel. Under Massachusetts law,

the doctrine of collateral estoppel applies when “(1) there was a final judgment on the merits in

the prior adjudication; (2) the party against whom estoppel is asserted was a party (or in privity

with a party) to the prior adjudication; (3) the issue in the prior adjudication is identical to the

issue in the current adjudication; and (4) the issue decided in the prior adjudication was essential

to the earlier judgment.” Green v. Town of Brookline, 53 Mass. App. Ct. 120, 123 (2001); see

also Alba v. Raytheon Co., 441 Mass. 836, 842 (2004). Plaintiff’s action against Estrella in state

court alleged libel based on the same six statements. Superior Ct. Order [#96-13]. A Superior

Court judge granted summary judgment in favor of Estrella, id. at 4-6, and the Massachusetts

Appeals Court affirmed. Lawless, 99 Mass. App. Ct. at 26. The Appeals Court agreed with the

Superior Court that the second statement “was unambiguously a statement of opinion, and not

fact, and was therefore not actionable,” and found that the fourth and fifth statements were

expressions of opinion when taken in the context of the email as a whole. Id. at 20-22.

Accordingly, since the decision in the state court is a final judgment on the merits, Lawless was

party to the prior adjudication, and the issue of whether these statements are defamatory is

identical in both proceedings, Lawless’ libel claim based on these three statements, which have

been determined to be statements of opinion, is barred by collateral estoppel.

To prevail on a procedural due process claim under section 1983, a plaintiff must

demonstrate (1) that she has been deprived of a protected interest and (2) that the defendants

deprived her of that interest without due process. Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26,

30 (1st Cir. 2008). It is uncontested that Lawless had a protected property interest in her

continued employment under the terms of her employment contract. She therefore could not be

terminated without due process, including a hearing before her termination. Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (holding that due process “requires ‘some kind of

a hearing’ prior to the discharge of an employee who has a constitutionally protected property

interest in his employment”).

“The essential requirements of due process . . . are notice and an opportunity to respond.

The opportunity to present reasons, either in person or in writing, why proposed action should

not be taken is a fundamental due process requirement.” Id. at 546. “Pre-termination and post-

termination proceedings are not evaluated for constitutional adequacy in isolation from each

other; a reviewing court studies the totality of the process received in light of the factual record

to determine if the procedural due process was sufficient.” Senra v. Town of Smithfield, 715

F.3d 34, 39 (1st Cir. 2013). Here, because there was no post-termination hearing, the court

considers whether the pre-termination hearing alone satisfied due process. See Cassim v. Bowen,

824 F.2d 791, 798 (9th Cir. 1987) (“The general rule is that the less the predeprivation process,

the greater must be the post-deprivation process”).

Neither pre-termination nor post-termination hearings need satisfy all the requirements of

due process attendant to court proceedings. See Senra, 715 F.3d at 39 (citing Chmielinski v.

Massachusetts, 513 F.3d 309, 316 (1st Cir. 2008)) (“Writing about pretermination proceedings,

we have observed that ‘a termination hearing is not a court of law.’ That observation holds true

for post-termination hearings”). And the First Circuit has stated that, as to pre-termination

hearings, “there is no requirement that the hearing officer be impartial; indeed, the terminating

employer may preside.” Chmielinski, 513 F.3d at 318. Lawless argues that, while that may be

true where post-termination proceedings are provided, a biased decisionmaker is procedurally

inadequate where she was afforded only a pre-termination hearing. However, the court need not

determine whether a neutral decisionmaker is required where there is not post-termination

hearing because a reasonable jury could find that, in this case, the outcome of the hearing was

predetermined and therefore violated Lawless’ due process rights.

Even where there is no requirement that the individuals adjudicating a pre-termination

hearing be unbiased, the lack of impartiality may at some point become “so severe as to interfere

with due process at the hearing itself.” Id. Due process requires that the employer “be willing to

listen. Otherwise, the ‘opportunity to respond’ required by Loudermill is no opportunity at all.”

Ryan v. Illinois Dep't of Children & Family Servs., 185 F.3d 751, 762 (7th Cir. 1999). Here,

there is evidence for a reasonable jury to find that the Board had made up its mind to terminate

Lawless prior to the hearing and that no evidence she presented would have changed the result.

First, at the April 2, 2014 executive session—more than a year before Lawless’

disciplinary hearing—the Board members agreed that they did not trust Lawless. Apr. 2, 2014

Exec. Session Minutes [#95-17]. After Pacheco suggested that the Board hold a disciplinary

hearing, Sadeck stated that Lawless was appointed, not elected, and that “is the end of story.” Id.

A reasonable jury could find that Sadeck meant that the Board should terminate Lawless without

the benefit of a disciplinary hearing. At another executive session later that month, Baumgartner

said that he would “never get past the trust thing” and expressed his belief that Lawless “was not

truthful” with the Board. Id.

Then, at the November 17, 2014 executive session, Pacheco stated that she did not trust

Lawless and believed that Lawless had taken advantage of Healey to get the password to

Estrella’s computer. Baumgartner said that, in his opinion, Lawless “should be gone.” Nov. 17,

2014 Exec. Session Minutes [#95-21].

Next, at the at the April 7, 2015 executive session, the Board members voted

unanimously to hold a “termination hearing” for Lawless. Apr. 7, 2015 Exec. Session Minutes

[#96-4]. During the same session, Town Counsel advised the Board that they should promptly

hire an interim Treasurer because the “relationship [with Lawless] needs to be separated.” Id.

Finally, during the disciplinary hearings, a bystander overheard Sadeck and Baumgartner

discussing the hearing and heard one of them ask “why do we have to do this dog and pony

show, let’s just vote to terminate her and get it over with.” Higgins Aff. [#109-23]. Once the

hearing was over, the Board then voted to terminate Lawless without deliberating or making any

factual findings as to the majority of the charges against her. Jun. 22 Hrg. Tr. 105-08 [#96].

Based on these facts, a reasonable jury could find that the basis for the Board members’

votes was unrelated to the evidence presented at the hearing, that no evidence that Lawless could

have introduced would have made a difference to the outcome, that the outcome of the hearing

was therefore predetermined, and that Lawless accordingly was not afforded a true “opportunity

to respond.” See Loudermill, 470 U.S. at 546. Summary judgment is therefore inappropriate.

1. Parratt-Hudson Doctrine

The Board members argue that even if the pre-termination hearing was procedurally

inadequate, Lawless’ claim is barred by the Parratt-Hudson doctrine. Defs’ Mem. 20-21 [#100].

The Parratt-Hudson doctrine holds that “if a state provides adequate post-deprivation remedies—

either by statute or through the common-law tort remedies available in its courts—no claim of a

violation of procedural due process can be brought under § 1983 against the state officials whose

random and unauthorized conduct caused the deprivation.” Lowe v. Scott, 959 F.2d 323, 340 (1st

Cir. 1992). See Parratt v. Taylor, 451 U.S. 527 (1981); Hudson v. Palmer, 468 U.S. 517 (1984).

The doctrine does not apply, however, when “[t]he State delegated to [the government entity] the

power and authority to effect the very deprivation complained of . . . and also . . . the

concomitant duty to initiate the procedural safeguards.” Zinermon v. Burch, 494 U.S. 113, 138

(1990). In this case, the exception is inapposite: by their own admission, the Board members

terminated Lawless pursuant to a broad statutory grant of authority that delegates to the town the

responsibility to enact appropriate procedural protections. Pl’s SOF Resp.” ¶ 13 [#107]; see also

2010 Mass. Acts ch. 122, § 1.

2. Qualified Immunity

The Board members also suggest that they are entitled to qualified immunity. Defs’

Mem. 21-24 [#100]. “[G]overnment officials performing discretionary functions generally are

shielded from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Courts evaluate claims for qualified immunity

under a two-part test: “(1) whether the facts alleged or shown by the plaintiff make out a

violation of a constitutional right; and (2) if so, whether the right was ‘clearly established’ at the

time of the defendant’s alleged violation.” Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir.

2009).

Here, the court has determined that a reasonable jury could reach the conclusion that

Lawless’ due process rights were violated. The Board members argue that, even if that were the

case, it was not clearly established that the Board members were required (1) to recuse

themselves from the disciplinary hearing because they had previously addressed her performance

issues, or (2) to provide Lawless with all of the due process protections characteristic of court

proceedings. Defs’ Mem. 23 [#100]. But these arguments miss the main mark of Lawless’

allegations: that the disciplinary hearing was a sham and that the Board members had made up

their minds to terminate her long before the hearing began.

“The basic requirements of due process have long been settled” and “an objectively

reasonable official would indubitably have known that depriving plaintiff of . . . a meaningful

opportunity to respond . . . violated the fourteenth amendment.” Collins v. Marina–Martinez, 894

F.2d 474, 481 (1st Cir. 1990). The Board members are therefore not entitled to qualified

immunity.

C. Massachusetts Declaration of Rights and Claim of Ultra Vires Acts

At the hearing on the Motion for Summary Judgment [#93], Lawless conceded judgment

as to the Massachusetts Declaration of Rights (Count III) and ultra vires acts (Count IV) claims.

Elec. Clerk’s Notes [#119]. Accordingly, Defendants are granted summary judgment as to these

two claims.

D. Breach of Contract

Lawless’ final claim is that Freetown breached her employment agreement by

terminating her without justification or cause.8 Am. Compl. ¶¶ 235-37 [#42]. “To prevail on a

claim for breach of contract [under Massachusetts law], a plaintiff must demonstrate that there

was an agreement between the parties; the agreement was supported by consideration; the

8 The Amended Complaint [#42] also alleges that Freetown breached the employment contract

by not increasing Lawless’ salary after a year of continuous employment. Am. Compl. ¶¶ 233-34

[#42]. However, neither side addressed this claim in the briefing before this court.

plaintiff was ready, willing, and able to perform his or her part of the contract; the defendant

committed a breach of the contract; and the plaintiff suffered harm as a result.” Bulwer v. Mount

Auburn Hosp., 473 Mass. 672, 690 (2016) (citing Singarella v. Boston, 342 Mass. 385, 387

(1961)).

It is uncontested that an agreement existed between Lawless and Freetown. As described

above, Lawless’ employment agreement specified that Freetown employed her as Treasurer for a

three-year term running from July 1, 2013 to June 20, 2016. Employment Agreement 1 [#95-4].

It further provided that, after an initial six-month probationary period, Lawless was terminable

only for “cause.” Id. The standard for “just cause” under Massachusetts law is set out in Klein v.

President and Fellows of Harvard College, which states that:

Terms such as “just cause” and like phrases have been construed in similar or analogous

contexts as meaning: “[T]here existed (1) a reasonable basis for employer dissatisfaction

with a new employee, entertained in good faith, for reasons such as lack of capacity or

diligence, failure to conform to usual standards of conduct, or other culpable or

inappropriate behavior, or (2) grounds for discharge reasonably related, in the employer's

honest judgment, to the needs of his business. Discharge for a ‘just cause’ is to be

contrasted with discharge on unreasonable grounds or arbitrarily, capriciously, or in bad

faith.”

25 Mass. App. Ct. 204, 208 (1987) (quoting G M Employment Serv., Inc. v. Commonwealth,

358 Mass. 430, 435 (1970)). “As the existence of just cause is an affirmative defense,

‘commonly a question of fact, it rarely can be ruled as matter of law that it has been sustained.’”

Goldhor v. Hampshire Coll., 25 Mass. App. Ct. 716, 722 (1988) (quoting Chaplain v. Dugas, 323

Mass. 91, 93 (1948)). In addition, Lawless’ employment agreement stated that “the Board

recognize[d] the principle of progressive discipline and w[ould] afford [Lawless] prior notice of

shortcomings and an opportunity to correct the same where reasonably possible.” Id. at 1-2.

Freetown argues that the “cause” standard requires only that the employer have a

legitimate reason to discharge an employee and that because Lawless “yelled at a staff member

and chased her up a flight of stairs” and “snuck into Town Hall after being directed not to come

in and downloaded confidential information onto flash drives and took them home without

permission,” her conduct is clearly cause for termination Id. However, Freetown’s argument

advances contested inferences as unchallenged and assumes that the factfinder is compelled to

agree with its construction of disputed events. The law is otherwise. Griggs-Ryan, 904 F.2d at

115.

First, there is a genuine dispute as to whether Lawless’ conduct toward Thomas was so

inappropriate and unprofessional as to justify her termination for cause. Although a jury could

find that Lawless’ behavior constituted just cause, it could equally find that termination was a

disproportionate reaction and that, given the employment agreement committing Freetown to use

progressive discipline “where reasonably possible,” Lawless should have been disciplined—such

as with a written warning or a suspension—instead.

Similarly, a genuine dispute exists as to whether Lawless was permitted to take town files

home with her. Freetown claims that Lawless “snuck into Town Hall” at the time that Lawless

downloaded the files onto flash drives, but at that time, she had not yet been placed on

administrative leave and had only been told through a message passed on by the Board’s

administrative assistant not to come into the Town Hall the next day. Pl’s SOF Resp. ¶¶ 63-64

[#107]. According to Lawless, she downloaded the files—something that she had done on prior

occasions without issue—so that she would be able to continue her work from home. Id. at ¶ 65;

Pl’s Opp. 21-22 [#115]. Nor did the town have any policy against such conduct. Pl’s Opp. 21-22

[#115].

The other bases for Lawless’ termination are also disputed. Freetown claims that

Lawless’ refusal to turn over the banking passwords constitutes cause, but Lawless counters that

she had a statutory obligation not to relinquish the passwords until a new Treasurer had been

appointed. Pl’s SOF Resp. ¶ 82 [#107]; see also G. L. c. 41, § 35. Regarding the town’s

allegation that Lawless “misled” the Board with respect to the Lockbox program, Lawless

disputes that she intentionally misrepresented the agreement with the bank to the Board and

claims that she believed she had Board authorization. Pl’s Opp. 31 [#115]. Given that the Board

went on to ratify the contract shortly thereafter, a reasonable jury could find that this does not

constitute cause for termination. Finally, the town’s allegation that Lawless “failed, refused, and

neglected” to provide pension information to a town insurance vendor is not supported by any

evidence in the summary judgment record.

Considering all the evidence, the court finds that there is a factual question for the jury to

decide whether Freetown had just cause to terminate Lawless. Summary judgment is therefore

denied.

IV. Conclusion

For the foregoing reasons, Freetown and the Board member’s joint Motion for Summary

Judgment [#93] is GRANTED as to Counts I, III and IV, and DENIED as to Counts II and V.

IT IS SO ORDERED.

March 9, 2021 /s/ Indira Talwani

United States District Judge