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15-P-91 Appeals Court

JUDE CRISTO vs. LEWIS EVANGELIDIS.1 

No. 15-P-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.

Civil action commenced in the Superior Court Department on 

September 6, 2011. 

A motion for 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, sheriff 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 Evangelidis 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 sheriff's office (sheriff's office or 

department) on January 7, 2011, for exercising his rights under 

the First Amendment to the United States Constitution in early 

2010, the year before Evangelidis took office. For 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 employee of the sheriff's 

office, 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 11I; a civil 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 sheriff's 

office on January 7, 2011. Cristo's MCRA and conspiracy claims 

were dismissed on Evangelidis's motion. Cristo later stipulated 

to a dismissal with prejudice of his whistleblower claim. The 

remaining count, involving the § 1983 claim in which damages are 

sought against Evangelidis 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 qualified immunity is 
3

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 director of the 

sheriff's office. Cristo was promoted to human resources 

director of the sheriff's office in February, 2006, by Guy 

Glodis, Evangelidis's predecessor. Shortly thereafter, Cristo

was also appointed by Glodis to be the payroll director, and 

given other human resource duties. When, during the summer of 

2009, Glodis decided not to seek reelection as sheriff, Shawn P. 

Jenkins assumed the role of acting sheriff. 

In early 2010, Cristo expressed concerns to Jenkins, and to 

deputy superintendent Paul Legendre, that assistant deputy 

superintendent Scott Bove, a candidate for the sheriff's 

position, was not performing his human resource duties and was 

away campaigning as a candidate for sheriff 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 

observed 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 given 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 system for him 

and others. Because Dickhaut's sporadic attendance and failure 

to perform his payroll duties 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 the five-page report he had prepared. They did not ask 

him to submit it. Cristo also brought up his ongoing concerns 
5

about Bove's campaign activities and his failure to keep 

accurate time records, as well as an issue about missing radios 

that were the property 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 these problems resolved.

On November 7, 2010, Evangelidis, as sheriff-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 sheriff's office, that he had not yet 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 ceremony for the new 

sheriff on January 5, 2011. Cristo approached Evangelidis and 

introduced himself. Evangelidis replied, "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 told Cristo that his position was being abolished, and
6

that if he agreed to resign, he could work for two more weeks. 

Cristo declined the invitation. Jenkins then handed Cristo an 

envelope which he said contained Cristo's final check and 

termination letter.

On January 13, 2011, Cristo requested, in writing, 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 regulation. On January 14, 

2011, Jenkins sent an e-mail to certain sheriff'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 

forwarded 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 severance 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 him 
7

that he lacked the financial background to perform the duties of 

the new "combined position." 

On March 21, 2011, Cristo wrote to the State retirement 

board to inform it of a $3,000 pay raise he had received from 

Glodis in the summer of 2007, which was not 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 sheriff's office requesting information about 

the $3,000. Jenkins responded in writing to the retirement 

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 retroactive 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 board informed 

Cristo that based on the information it had received from the 

sheriff'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 his
8

accumulated sick leave because Cristo had been "terminated" from 

his employment with the sheriff's office. 

In May, 2011, the sheriff's office hired another individual 

to fill the newly created position of "Director of 

Administration and Finance/CFO," which consolidated the various 

positions previously held by Cristo. Prior to joining the 

sheriff's office, the newly hired person had served as the parttime treasurer of the town 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 party 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. 

Eissner, 405 Mass. 207, 209 (1989). "If the moving party 

establishes the absence of a triable issue, the party opposing 
9

the motion must respond and allege specific facts 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 

decision." 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 violate clearly established 

statutory authority or constitutional rights of which a 

reasonable person would have known. Qualified immunity is an 
10

affirmative defense, and thus the burden of proof is on 

defendants-appellants." DiMarco-Zappa v. Cabanillas, 238 F.3d 

25, 35 (1st Cir. 2001) (citation and quotation omitted). See 

Baker v. Gray, 57 Mass. App. Ct. 618, 622 (2003); Ahmad v. 

Department 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 Federal constitutional or statutory 

rights;4 (2) if so, whether at the time of the violation those 

rights were clearly established; and (3) whether a reasonable 

person in the defendant's position would understand that his 

conduct violated those clearly established rights. 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 first 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 decision turned on the 

reason for Cristo's termination.

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 public employee like Cristo 

makes a statement pursuant to his official duties, he is not 

 

5 In denying the motion for summary judgment, the judge 

concluded that Evangelidis's "alleged motivations" created "the 

ultimate questions of material fact," which suggests that the 

judge may have denied relief based on the view that Evangelidis 

could be liable for damages if he harbored a subjective intent 

to retaliate against Cristo. In his order staying the 

proceedings pending review by this court (see note 2, supra),

the single justice noted that that approach "contravenes the 

Supreme Court's intent to restrict the question of qualified 

immunity to 'an objective inquiry into the legal reasonableness 

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. 

The Court relied on the First Amendment analysis set forth in 

Pickering v. Board 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 matter 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, conducting 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 court 

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 purposes, and the 

Constitution does not insulate their communications from 

employer discipline." Id. at 421. The Court reasoned that when 

an employee performs tasks that are part of his duties, the 

employee's supervisors have a right to review and evaluate his 

performance independent of judicial oversight. Id. at 423. On 
13

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 

speech and its consequences." Ibid. 

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. Whittemore, 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 employee of the sheriff'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 was 
14

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 concerned missing radios that were the 

property of the sheriff'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 itemized the return of any 

sheriff's office equipment that 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 forum outside the 

workplace to communicate his complaints. Contrast Pickering, 

391 U.S. at 566 (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).

We 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 117, 123 (1st Cir. 2013) (human 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 establish 
15

that the employee had a specific duty to speak or to lodge a

complaint. Instead, 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 

framework developed in Garcetti, it is not sufficient that an 

employee's speech relates to matters of public concern. Under 

governing Federal 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. at 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 Federal 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 

(2015) (adopting view expressed by Justice Souter, in 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 denying 

Evangelidis's motion for summary judgment is vacated. The case 

is remanded to the Superior Court 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 

terminate Cristo and Cristo's complaints before Evangelidis 

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 

evidence in the summary judgment record that bears directly on 

this question is that in his deposition, Evangelidis 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 inform Evangelidis of Cristo's complaints until after this 

lawsuit was filed. Cristo, in turn, relies on an incident at 

Evangelidis's inauguration event in which he states that 

Evangelidis abruptly walked away from him without speaking after 

they were introduced, and the timing of his termination, coming 

only days after Evangelidis was sworn in as sheriff. In view of 

our decision with respect to qualified immunity, it is 

unnecessary for us to address this factual dispute.