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- 1030; SJCReporter@sjc.state.ma.us 15

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- 91 Appeals Court

JUDE CR ISTO vs . LEWIS EVANGELIDIS. 1

No. 15

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- 91. Worcester. November 2, 2015.

- October 28 , 2016. Present: Agnes, Sullivan, & Blake, JJ.
Civil Rights , Immunity of public official, Termination of employment. Employment , Retaliation, Termination. Constitutional Law , Freedom of speech and press, Public employment. Public Employment , Termination. Practice, Civil , Summary judgment, Civil rights. Sheriff
.

C ivil action commenced in the Superior Court Department on September 6, 2011. A motion f or summary judgment was heard by David Ricciardone , J.

Andrew J. Abdella for the defendant
. Timothy M. Burke for the plaintiff
. AGNES, J. The question before us is whether the defendant , Lewis Evangelidis, s heriff of Worcester County, was entitled to judgment as a matter of law on count three of the plaintiff Jude

1 Individually and as sheriff of Worcester County.2

Cristo 's complaint , charging Evangelid i s with a violation of 42 U.S.C. § 1983
. 2 In particular, Cristo alleges that Evangelidis retaliated against him by terminating him from employment in the Worcester County s heriff's o ffice (sheriff's office or department) on January 7, 2011, for exercising his rights under the First Amend ment to the United States Constitution in early 2010, the year before Evange lidis took office. F or the reasons that follow, we conclude that Evangelidis ' s motion for summary judgment , based on the defense of qualified immunity, should have been allowed because on the record before us , Cristo's speech , while related to matters of public concern, was undertaken in his capacity as an e mployee of the s heriff's

o ffice, and not as a private citizen. 3 See Garcetti v. Ceballos , 547 U.S. 410, 421 (2006).

2 Cristo's original complaint consisted of four counts: a whistleblower claim pursuant to G. L. c. 149, § 185; a Massachusetts Civil Rights Act (MCRA) claim pursuant to G. L. c. 12, §§ 11H and 11 I; a civi l rights claim pursuant to 42 U.S.C. § 1983; and a conspiracy claim arising out of the elimination of his position at the Worcester County s heriff's office on January 7, 2011. Cristo's MCRA and conspiracy claims were dismissed on Evangelidis's motion. Cr isto later stipulated to a dismissal with prejudice of his w histleblower claim. The remaining count , involving the § 1983 claim in which damages are sought against Evangelid i s in his personal capacity , was ordered stayed pending appeal by a single justice of this court. See note 3 , infra
.

3 Ordinarily, there is no right to an appeal from an order denying a party's motion for summary judgment. However, when the motion for summary judgment is based on the defense of qualified immunity, the order denying q ualified immunity is3

Background
. We view the summary judgment record in the light most favorable to Cristo, the nonmoving party. Cristo was hired in June, 1999 , as the assistant personnel d irector of the

s heriff's o ffice. Cristo was promoted to h uman r esources d irector of the sheriff's office in February, 2006 , by Guy Glodis, Evangelidis's predecessor . Sho rtly thereafter , Cristo was also appointed by Glod is to be the p ayroll d irector, and given other human resource duties. When, during the summer of 2009, Glodis decided not to seek ree lection as s heriff, Shawn P. Jenkins assumed the role of acting s heriff. In early 2010, Cristo expressed concerns to Jenkins, and to d eputy s uperintendent Paul Legendre, that a ssistant d eputy

s uperintendent Scott Bove, a candidate for the s heriff ' s posi tion, was not performing his human resource duties and was away campaigning as a candidate for s heriff for some portion of days he marked himself present at the department . Jenkins and Legendre informed Cristo that they were aware of the situation. Cristo also told Jenkins and Legendre that he personally

o bserved Captain Jason Dickhaut , who had duties relating to the payroll for line staff at the sheriff ' s office , helping Bove with his campaign for sheriff during work hours, and that

treated as a final order and is immediately appealable. See Mitchell v. Forsyth , 472 U.S. 511, 525

- 526 (1985) ; Littles v. Commissioner of Correction , 444 Mass. 871, 876 (2005); Matthews v. Rakiey , 38 Mass. App. Ct. 490, 493 (1995).4

Dickhaut had giv en bumper stickers supporting Bove's candidacy
to Cristo ' s assistant for payroll and asked her to record

" missed punches " in the department ' s time clock syste m for him and others. Be cause Dickhaut ' s sporadic attendance and failure to perform his payroll d uties were " causing problems with the department ' s ability to process the payroll in a timely manner, " Cristo brought his concerns directly to Jenkins , who supervised Dickhaut. On Friday, February 19, 2010, Dickhaut confronted Cristo about the complaints made by Cristo about Dickhaut's campaign activities on department time and Dickhaut ' s interactions with human resource and payroll personnel. Dickhaut was loud and hostile. Jenkins, who was in the next office when Dickhaut confronted Cristo , told Cristo that he had heard the exchange. When asked what he was going to do about it, Jenkins reportedly laughed, and told Cristo " that he let it go on " and " to go home early
. " The following weekend, Cristo prepared a five

- page report on Dickhaut ' s violations of law and the department ' s own regulations, but did not submit it to Jenkins. Cristo attended a meeting with Jenkins and Legendre on Monday, June 14, 2010. Cristo reminded them of the confrontation Dickhaut had initiated with him, and informed them about t he five

- page report he had prepared. They did not ask him to submit it. Cristo also brought up his ongoing concerns5

about Bove ' s campaign activities and his failure to keep accurate time records , as well as an issue about missing radios that were the pro perty of the department . Jenkins expressed concerns that by putting things in electronic mail (e

- mail)
messages and writings, Cristo was making him (Jenkins) look like he was not interested in addressing these issues. Cristo told them he simply wanted th ese problems resolved.
O n November 7, 2010, Evangelidis , as s heriff

- elect, was interviewed by the Worcester Telegram and Gazette and reportedly said that it was not his intention to replace everyone then employed by the s heriff ' s office , that he had not y et picked anyone for the management positions, that he was willing to interview current employees , and that if they were doing their jobs well, " they should feel comfortable in the fact that they can keep the job. " Cristo attended the inauguration cerem ony for the new

s heriff on January 5 , 2011. Cristo approached Evangelidis and introduced himself. Evangelidis r eplied , " Jude Cristo? " and walked away. The following day, an article about Evangelidis's inauguration appeared in the Worcester Telegram and Gazette in which Evangelidis was quoted as saying that he " is giving employees at the jail a chance to prove themselves. " The next day, Cristo was called to a meeting with Jenkins at 3:00 P . M . Jenkins t old Cristo that his position was being abolished , and6

that if he agreed to resign , he could work for two more weeks. Cristo declined the invitation. Jenkins the n handed Cristo an envelope which he said contained Cristo's final che ck and termination lette r. On January 13, 2011, Cristo requested, in writ ing, a full accounting of what he had been paid and copies of his personnel file, medical file, and e

- mails. He also inquired whether he would receive the same $2,000 severance check that other employees who had been laid off several weeks earlier had received. Cristo also sent a letter to Evangelidis appealing his termination under a department regulati on. On January 14, 2011, Jenkins sent an e

- mail to certain s heriff ' s office personnel advising them that employee records and personnel files were not to be destroyed or deleted, and that if any information was requested by Cristo , the request was to be
f orwarded to Jenkins or chief of staff Jason Rives. Staff were also verbally informed not to have any contact with Cristo
. On January 25, 2011, Rives sent a letter to Cristo explaining that unlike the other former employees, he was not entitled to severan ce pay because he was not first placed on administrative leave, and that the decision to make the payments was made by the outgoing sheriff. On February 3, 2011, Jenkins sent a letter to Cristo dismissing his appeal and informing him7

that he lacked the financial background to perform the duties of the new " combined position. " On March 21, 2011, Cristo wrote to the S tate retirement board to inform it of a $3,000 pay raise he had received from Glodis in the summer of 2007 , which was n ot included in the salary information provided to the retirement board by the sheriff ' s office . On March 29, 2011, the retirement board sent a letter to the s heriff ' s office requesting information about the $3,000. Jenkins responded in writing to the ret irement board and stated that the $3,000 was not a salary increase, but a bonus, but did not submit " factual documentation " in support of his statement . On April 4, 2011, Cristo was notified by the retirement board that his retirement had been approved re troactive to January 7, 2011, the date of his termination. That same day, Cristo sent a letter to Rives requesting that he be paid twenty percent of his accumulated sick leave days as of the date of his termination. On April 12, 2011, the retirement boar d informed Cristo that based on the information it had received from the

s heriff ' s office , it could not add $3,000 to his salary for purposes of calculating his retirement benefit. Cristo appealed this decision. On May 16, 2011, Rives informed Cristo in writing that he would not be paid a percentage of hi s8

accumulated sick leave because Cristo had been " terminated " from his employment with the s heriff ' s office
. I n May, 2011, t he sheriff's office hired another individual to fill the newly created positi on of " Director of Administration and Finance /CFO ," which consolidated the various positions previously held by Cristo. Prior to joining the

s heriff ' s office, the newly hired person had served as the part

time treasurer of the to wn of Barre. Discussion
. 1. Standard of review . Summary judgment is appropriate when " there is no genuine issue as to any material fact and
. . . the moving party is entitled to a judgment as a matter of law. " Mass.R.Civ.P. 56 (c) , as amended, 436 Mass. 1404 (2002)
. A party moving for summary judgment who does not bear the burden of proof at trial demonstrates the absence of a triable issue either by submitting affirmative evidence negating an essential element of the nonmoving party's case or by showing that the nonmoving pa rty is unlikely to submit proof of that element at trial. See Kourouvacilis v. General Motors Corp ., 410 Mass. 706, 716 (1991); Flesner v. Technical Communications Corp ., 410 Mass. 805, 809 (1991). The nonmoving party cannot defeat the motion for summary judgment by resting on its pleadings and mere assertions of disputed facts. LaLonde v. Eis s ner , 405 Mass. 207, 209 (1989). "If the moving party establishes the absence of a triable issue, the party opposing9

the motion must respond and allege specific fa cts which would establish the existence of a genuine issue of material fact in order to defeat a motion for summary judgment." Pederson v. Time, Inc ., 404 Mass. 14, 17 (1989). 2. Section 1983 retaliation claim . In order to prevail on his First Amendment retaliation claim, Cristo must establish three things are more likely than not: (1) that he was speaking

" as a citizen on a matter of public concern " ; (2) that his interests, " as a citizen, in commenting upon matters of public

concern " outweighed his employer's interest " in promoting the efficiency of the public services it performs through its employees " ; and (3) " that the protected expression was a substantial or motivating factor in the adverse employment de cision. " Decotiis v. Whittemore , 635 F.3d 22, 29 (1st Cir. 2011) , quoting from Curran v. Cousins , 509 F.3d 36, 44

– 45 (1st Cir. 2007). 3
. Qualified immunity
. "Even when an official is personally liable under § 1983, he may be shielded from paying damages when the doctrine of qualified immunity applies.
. . . [ Q ] ualified immunity shields government officials performing discretionary functions from civil liability for money damages when their conduct does not viol ate clearly established statutory authority or constitutional rights of which a reasonable person would have known. Qualified immunity is an10

affirmative defense, and thus the burden of proof is on defendants

- appellants." DiMarco

- Zappa v. Cabanillas , 238 F.3d 25, 3 5 (1st Cir. 2001) (citation and quotation omitted). See Baker v. Gray , 57 Mass. App. Ct. 618, 622 (2003) ; Ahmad v. Dep artment of Correction , 446 Mass. 479, 484 (2006). There is a tripartite test for determining whether a defendant is entitled to the defense of qualified immunity in a case such as this : (1) whether the facts taken in the light most favorable to the plaintiff demonstrate that there was a violation of the plaintiff ' s F ederal constitutional or statutory rights; 4 (2) if so, whether at the time of the violation th ose rights were clearly established; and (3) whether a reasonable person in the defendant ' s position would understand that his conduct violated th ose clearly established right s . See Nelson

v. Salem State College , 446 Mass. 525, 531 (2006)
. See also Saucier v. Katz , 533 U.S. 194, 200

- 201 (2001) ; White v. Gurnon , 67 Mass. App. Ct. 622, 627 (2006). The present case is one in which there is overlap between the first element of Cristo's § 1983 claim and the f irst question to be addressed in determining whether Evangelidis is entitled to qualified immunity, namely, whether Cristo is able to prove that

4 "[Section] 1983 protects against the violation of Federal statutes and constitutional provisions. It does not protect against the violation of State statutes
. " Baker v. Gray , 57 Mass. App. Ct. 618, 624 (2003).11

Evangelidis violated his First Amendment rights. See Clancy v. McCabe , 441 Mass. 311, 322 (2004) , quoting from Camilo

- Robles v. Hoyos , 151 F.3d 1, 7 (1st Cir. 1998) (although inquiry into whether there is qualified immunity is "separate and distinct " from assessment of merits of plaintiff ' s case, they sometimes

" overlap " ). In denying the motion for summary judgment, it appears that the judge assumed that Cristo was engaged in the exercise of his First Amendment rights when he complained to Jenkins about the conduct of Bove and Dickhaut , because his de cision turned on the reason for Cristo 's terminati on . 5 On the record before us, however, such an assumption cannot be squared with the holding in Garcetti v. Ceballos , 547 U.S. 410. In Garcetti , the United
States Supreme Court clarified the law regarding qualified immunity by declaring that when a publi c employee like Cristo makes a statement pursuant to his official duties, he is not

5 I n denying the motion for summary judgment , the judge concluded that Evangelid i s's "alleged motivations" created "the ultimate questions of material fact," which suggests that the judge may have denied relief based on the view that Evangelid i s could be liable for damages if he harbored a subjectiv e intent to retaliate against Cristo. In his order staying the proceedings pending review by this court (see note 2, supra ), t he single justice noted that t hat approach " contravenes the Supreme Court's intent to restrict the que stion of qualified immunity to ' an objective inquiry into the legal reasona bleness of the official action.'" Clancy v. McCabe , 441 Mass. at 323, quoting from Anderson v. Creighton , 483 U.S. 635, 645 (1987). In view of the approach we take, it is unnecessary to explore this question further.12

speaking as a citizen in the exercise of First Amendment rights.
T he C ourt relied on the First Amendment analysis set forth in Pickering v. B oard of Educ. of Township High Sch
. Dist. 205, Will City , 391 U.S. 563 , 568 (1968) , and Connick v. Myers , 461 U.S. 138, 142 (1983), and acknowledged that the initial question in cases such as this is whether the content of the public employee ' s speech related to " a mat ter of public concern. " Garcetti , supra at 418
. Here, this question is easily answered in the affirmative because Cristo was calling attention to the fact that other public employees in the sheriff ' s office were not performing their assigned duties, cond ucting the private business of campaigning for public office while they were supposed to be working for the sheriff ' s office , and committing other acts in violation of law
. However, the Garcetti c ourt added a further requirement that must be met before it can be said that a public employee has exercised First Amendment rights. " We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purpo ses, and the Constitution does not insulate their communications from employer discipline. " Id . at 421. T he C ourt reasoned that when an employee performs tasks that are part of his duties, the employee ' s supervisors have a right to review and evaluate hi s performance independent of judicial oversight. Id . at 423. On13

the other hand, when an employee " speaks as a citizen addressing matters of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the
speec h and its consequences. " I bi d
. The determination of the scope of a public employee ' s duties calls for a " practical " rather than a formal inquiry

--

one that depends not simply on a job description, but also on the duties that the employee was expected to perform. Decotiis

v. Whitt e more , 635 F.3d at 31 , quoting from Mercado

- Berrios v. Cancel

- Alegria , 611 F.3d 18, 26 (1st Cir. 2010)
. In the present case, we have the benefit of a record that contains Cristo's deposition in which he testified in detail about the workplace complaints he brought to the attention of Jenkins and others. On the record before us, there are no material facts in dispute with regard to whether Cristo spoke in his capacity as an employe e of the s heriff ' s office or as a private citizen. Cristo learned about the matters that he reported to Jenkins in the course of performing his job duties
. The subjects of his speech are all matters that are directly related to Cristo ' s myriad duties as payroll director, and his other human resource responsibilities. Cristo ' s first complaint to Jenkins was that Bove was not performing his human resource duties and not working full days

-- matters that relate directly to Cristo ' s responsibilities. Cristo ' s second complaint to Jenkins was14

about Dickhaut ' s attendance. In making this complaint, Cristo specifically stated that Dickhaut ' s conduct was interfering with Cristo ' s ability to perform his payroll duties. Cristo ' s third complaint to Jenkins concerne d missing radios that were the property of the s heriff ' s office . Once again, during his deposition testimony, Cristo specifically explained that one of his duties was to ensure that when employees left the sheriff ' s office , they filled out a form that ite mized the return of any sheriff ' s office equipment th at was issued to them. Cristo aired his complaints while on duty. Cristo did not share the contents of his complaints with anyone other than his immediate supervisor . Cristo did not make use of a foru m outside the workplace to communicate his complaints. Contrast Pickering , 391 U.S. at 56 6 (plaintiff wrote letter to local newspaper); Decotiis , supra at 28 (plaintiff urged clients to contact advocacy organizations) ; Curran , 509 F.3d at 41 (plaintiff made Internet postings).
W e conclude that Cristo ' s communications to Jenkins were

" made exclusively to fulfill [ his ] responsibilities " as the director of payroll and human resources. See O ' Connell v. Marrero

- Racio , 724 F.3d 11 7 , 123 (1 st Cir. 2013) (huma n resource director who complained about unethical and illegal activities in workplace was not speaking as private citizen for First Amendment purposes). A defendant is not required to establish15

that the employee had a specific duty to speak or to lodge a complaint. Instea d, courts should examine the context in which the public employee ' s speech occurred. Decotiis , 635 F.3d at 32
. Cristo ' s response that his speech concerned matters of public concern is beside the point because under the analytical fra mework developed in Garcetti , it is not sufficient that an employee ' s speech relate s to matters of public concern. Under governing F ederal law, 6 "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." Garcetti , 547 U.S. a t 421. See Lane v. Franks , 134 S. Ct. 2369, 2373 (2014 ) (If " speech is made pursuant to the employee ' s ordinary job duties, then the

6 Count three is based exclusively on an alleged violation of F ederal law, namely, the First Amendment. We have no occasion and decline to express an opinion whether under the Massachusetts Declaration of Rights a public employee ' s right to be protected against discipline by his public employer that is based on the employee ' s workplace speech is broader than the protections recognized by the Supreme Court in Garcetti
. See, e.g., Trusz v. UBS Realty Investors, LLC , 319 Conn. 175, 216 (201 5) (adopting view expressed by Justice Souter, i n his dissenting opinion in Garcetti , 547 U.S. at 435, that " comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety can weigh out in an employee ' s favor " when the employee ' s speech concerns official duties).16

employee is not speaking as a citizen for First Amendment
purposes " ). 7
Conclusion . For the above reasons, the order deny ing Evangelid i s's motion for summary judgment is vacated. The case is remanded to the S uperior C ourt for entry of an order allowing the motion for summary judgment. So ordered
.

7 Evangelidis also maintains that the summary judgment record contains no evidence that would support an inference that there was a causal relationship between his decision to termin ate Cristo and Cristo's complaints before Evangelidi s became sheriff. See Clancy v. McCabe , 441 Mass. at 321 , quoting from Jones v. Wellham , 104 F.3d 620, 627 (4th Cir. 1997) (more than " mere cause - in

- fact relationship " is required). The evid ence in the summary judgment record that bears directly on this question is that in his deposition, Evangelid i s states he did not learn of Cristo's complaints until after Cristo filed this lawsuit. Also, Jenkins states in his affidavit that he did not inf orm Evangelid i s of Cristo's complaints until after this lawsuit was filed. Cristo , in turn, relies on an incident at Evangelid i s's inauguration event in which he states that Evangelid i s abruptly walked away from him without speaking after they were introd uced, and the timing of his termination, coming only days after Evangelid i s was sworn in as sheriff. I n view of our decision with respect to qualified immunity , it is unnecessary for us to address this factual dispute.