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Constructive Dismissal Defeats Summary Judgment in MA Whistle Blower Suit

A Massachusetts Federal District Court denied summary judgment to Suffolk
County in a guard's 42 U.S.C.§ 1933 action alleging he was forced to quit
because he broke a "code of silence" when he reported a fellow guard's
misconduct. The guard observed a fellow guard at the Suffolk County House
of Corrections playing cards with prisoners in violation of prison policy,
and was instructed to file a report by a superior. The guard accused of
the violation received three days suspension, and the reporting guard
began enduring harassment from fellow guards for being a "rat fink."
The guard verbally reported the harassment to superiors over 30 times, and
in writing over 20 times, to no avail. The harassment was not only verbal
barbs but also included "threatening phone calls, smearing of feces on his
car, and the slashing of his tires." The guard, himself, began getting
into trouble and was suspended twice. Ultimately, he resigned.

His complaint alleged he was constructively discharged in violation of his
First Amendment rights. The Court held the guard had to show that his
report about the misconduct was of interest to the public to prevail. The
Court stated it is essential that guards be able to speak freely about
misconduct without the pressure of a "code of silence" and fear of extreme
retaliatory harassment sufficient to force resignation. A report of a
special commission on the Suffolk County Sheriff's Department found the
existence of the code of silence is of public concern and needed to be
aggressively attacked. Moreover, the guard was complying with the
instruction of a superior. The Court held the extreme harassment in
retaliation for protected speech that results in constructive discharge
can constitute a claim under § 1983.

The Court then turned to the guard's due process claim alleging
constructive discharge by reason of working conditions rendered so
intolerable as to remove any real choice from the plaintiff as to whether
to remain in his job. The Court held it must apply a "surrounding
circumstances" analysis and "ask whether the conditions were such that a
reasonable person could not be expected to remain at the job, that is,
whether the plaintiff reasonably felt he had no choice but to resign." The
Court found the facts are disputed on this issue and a jury needed to
resolve the disputes.

The Court also held the County may be liable in this case, as a jury could
find a custom of turning a blind-eye to employee-employee harassment in
retaliation for speaking out in violation of the "code of silence." The
Court also held the sheriff was entitled to qualified immunity, as it
concluded the sheriff's management style did not amount to a hands-off,
willful blindness or deliberate indifference response to the code of
silence during the relevant time period.

The Court further held a common law claim of constructive discharge
against the County would be allowed in this case. Accordingly, the Court
denied the County's motion for summary judgment but granted the sheriff
qualified immunity. See: Baron v. Hickey, 242 F.Supp. 2d 66 (D. Mass,

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Related legal case

Baron v. Hickey

BARON v. HICKEY, 242 F.Supp.2d 66 (D.Mass. 01/31/2003)

[1] United States District Court, District of Massachusetts

[2] CIVIL ACTION NO: 01-10143-PBS

[3] 242 F. Supp.2d 66, 2003

[4] January 31, 2003


[6] Carolyn Conway, DiMento & Sullivan, Boston, Ma, for Plaintiff.

[7] Stephen C. Pfaff, Douglas I. Louison, Merrick, Louison & Costello, Boston, Ma, for Defendant.

[8] Kathleen M. Cawley, Suffolk County Sheriff's Department, Boston, Ma, for Defendant, Cross-Claimant.

[9] The opinion of the court was delivered by: Patti B. Saris, United States District Judge.



[12] Plaintiff Bruce S. Baron, a corrections officer at the Suffolk County House of Correction, alleges he was harassed and forced to quit because he broke a "code of silence" when he reported a fellow officer's misconduct. He asserts claims under 42 U.S.C. § 1983 and state law. Defendants Richard Rouse, Sheriff of Suffolk County ("Rouse"), and the Suffolk County Sheriff's Department ("the Department") move for summary judgment. After hearing, the motion is ALLOWED in part and DENIED in part.


[14] When all reasonable inferences are drawn in plaintiff's favor, the Court treats the following facts as undisputed, except where otherwise stated. Some of these facts are hotly disputed.

[15] Plaintiff Baron was hired on December 7, 1995 by the Suffolk County House of Correction as a corrections officer. Defendant Rouse became Sheriff in October 1996. On January 27, 1997, Baron observed another corrections officer, Sgt. Curtis, a supervisor, playing cards with a group of inmates, a violation of the institution's policies. Peeved at Curtis's laziness, a supervisor instructed Baron to report the matter, and he did so, albeit reluctantly because he knew the likely consequences of breaking the code of silence concerning another officer's misconduct. Sgt. Curtis received a three-day suspension as a result of Baron's report. Baron's co-workers began to harass him on a daily basis when they learned that he had filed this report.

[16] The chief protagonist was Defendant Hickey, also a corrections officer, who harassed, threatened, and intimidated Baron on numerous occasions. On September 13, 1997, Hickey came to Baron's table at the cafeteria saying, "Excuse me, this is for the rat fink." Hickey threw cheese onto Baron's plate, splattering the food onto Baron's uniform, and tried prodding him into a fight by saying he was a "low down Jewish rat bastard coward." There were other instances in which Hickey referred to Baron as a "rat fink" and a "rat coward," and once said that he, Hickey, would, "be the one to beat the shit out of" Baron. Hickey denies being the ring leader of this harassment. His version of the September 13th incident is that Baron walked by him and said hello. When Hickey refused to answer, Baron responded: "Oh, you don't talk to me either like the rest of those fucking punks." In the cafeteria, Hickey thought Baron called him a punk again. When Hickey replied, "Did I hear a squeak?" Baron replied, "Hey, Hickey, why don't you do us all a favor and commit suicide or kill yourself." Hickey repeated, "Did I hear a squeak?" Hickey explained he wanted to avoid any conversation with Baron because of rumors that he was a rat. Under either version, Baron was being ostracized and taunted for reporting the misconduct.

[17] Other forms of harassment include defamatory and threatening posters that were taped to Baron's locker and in the staff locker room one of which stated that Baron watched child-pornography at work threatening phone calls, smearing of feces on his car, and the slashing of his tires. Baron also submitted a poster which he interpreted as depicting an elevator shaft with language suggesting he would be pushed down the shaft. Superior officers observed some of the harassment, but did nothing to halt it. Baron was transferred to the night shift on or about October 15, 1997, in an effort to avoid further harassment, but to no avail.

[18] Baron verbally complained of this harassment on thirty occasions, and in writing he submitted twenty complaints, to his supervisors at the Sheriff's Department. With respect to the September 13, 1997 incident, he submitted two written complaints, on September 15 and September 16, 1997, one of which was with the Sheriff's Investigative Division ("SID"). He claims that the SID lost the other written complaints, and he did not keep copies. Neither report mentioned harassment based on religion. In January, 1998, Baron met with Deputy Superintendent Lugelow. Lugelow interviewed Hickey (who denied harassing Baron) and ordered him to cease the harassment. Hickey was not disciplined. On another occasion, when Baron reported an anonymous harassing phone call, his supervisor told another corrections officer to cease if he was the one making the call. Nothing more was done to stop the harassment. On one occasion, a superior responded to Baron's complaint by telling him to "be a man." Defendants contend that both complaints were adequately addressed, and that they had an anti-harassment policy in place.

[19] Baron himself began getting into trouble. On December 9, 1997, a female inmate alleged the plaintiff sexually assaulted her and an internal investigation ensued. A criminal complaint was filed for indecent assault and battery on a person over 14 in violation of Mass. Gen. L. ch. 265, § 13H. Plaintiff was acquitted and claims the charges were trumped up in an effort to discredit him. Plaintiff was also given a 5-day suspension for giving food (sandwiches and candy) to a female inmate in violation of department policy.

[20] On February 24, 1998, plaintiff was taken ill at work and was sent to the hospital, but later returned to work. On August 13, 1998, he received a 20-day suspension until August 11, 1998 for receiving a written communication from an inmate which he did not report immediately, but instead filed with the Boston Police. Essentially an inmate told Baron that his 15-year old girlfriend had been sexually assaulted by an upstairs neighbor and Baron filed the report directly with the police, rather than notifying his supervisor.

[21] According to the Superintendent of the Suffolk County House of Correction, Richard James Feeney, a "code of silence" existed among the corrections officers in the institution in 1997 and 1998. This "code of silence" requires officers to refrain from reporting each other for violations of the institution's policies. Baron claims he suffered harassment as a result of breaking the code. Baron alleges that this "code of silence" is known and tolerated by both the Department and Sheriff Rouse.

[22] Baron resigned in September 1998, claiming he was forced to resign by the unremitting harassment, which was taking a psychological toll. Defendants claim he resigned rather than face the 20-day suspension imposed on August 11, 1998.


[24] "Summary judgment is appropriate when `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Barbour v. Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir. 1995) (quoting Fed.R.Civ.P. 56(c)). "To succeed [in a motion for summary judgment], the moving party must show that there is an absence of evidence to support the nonmoving party's position." Rogers v. Fair, 902 F.2d 140, 143 (1st Cir. 1990); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

[25] Once the moving party has properly supported its motion for summary judgment, the burden shifts to the non-moving party, who "may not rest upon mere allegations or denials of his pleading, but must set forth specific facts showing there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514 (1986). "There must be `sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.'" Rogers, 902 F.2d at 143 (quoting Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511) (citations and footnote in Anderson omitted). The Court must "view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences in that party's favor." Barbour, 63 F.3d at 36.


[27] A. Alleged Constitutional Violations

[28] To prevail on a claim under 42 U.S.C. § 1983, Baron must show that he has suffered a violation of his constitutionally protected rights. He claims (1) that he was constructively discharged in retaliation for his exercise of First Amendment rights; (2) that he was deprived of his property interest in his job in violation of the due process clause; and (3) that defendants permitted a hostile work environment because of his religion.

[29] 1. First Amendment Claim

[30] Plaintiff claims that he was discharged in retaliation for his report of the wrong-doing of his fellow corrections officer and in retaliation for his complaints to the sheriff regarding the co-worker harassment against him for being a "snitch."

[31] The First Circuit has recently summarized that to prevail on a First Amendment claim of this nature plaintiff, "as a public employee, must establish that (1) his expression involved matters of public concern; (2) his interest in commenting upon those matters outweighed the City's interests in the efficient performance of its public services; and (3) his protected speech was a substantial or motivating factor in the City's adverse employment actions." Lewis v. City of Boston, 02-CV-1495, 2003 WL 174887 at *7 (1st Cir. Jan. 28, 2003); see also Mullin v. Town of Fairhaven, 284 F.3d 31, 37-38 (1st Cir. 2002); Connick v. Myers, 461 U.S. 138, 147-48 (1983); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977); Pickering v. Bd. of Educ., 391 U.S. 563 (1968).

[32] Absolute First Amendment protection is not accorded to the speech of a public employee regarding his employment without regard to content. The threshold question is thus whether the employee was speaking as a citizen upon matters of public concern, or, alternatively, as an employee upon matters only of personal interest:


Where a public employee speaks out on a topic which is clearly a legitimate matter of inherent concern to the electorate, the court may eschew further inquiry into the employee's motives as revealed by the "form and context" of the expression. . . . On the other hand, public-employee speech on a topic which would not necessarily qualify, on the basis of its content alone, as a matter of inherent public concern (e.g., internal working conditions, affecting only the speaker and co-workers), may require a more complete Connick analysis into the form and context of the public-employee expression, "as revealed by the whole record," . . . with a view to whether the community has in fact manifested a legitimate concern in the internal workings of the particular agency or department of government, and, if so, whether the "form" of the employee's expression suggests a subjective intent to contribute to any such public discourse.

[34] O'Connor v. Steeves, 994 F.2d 905, 913-14 (1st Cir. 1993) (emphasis in original).

[35] The question here is whether the report about the misconduct of a corrections officers at the Suffolk County House of Correction is of inherent interest to the public. Connick provides important guideposts here. On the one hand, the Supreme Court held that speech about confidence and trust in supervisors, the level of office morale, and the need for a grievance committee did not raise matters of substantial public concern because it was rooted in the employee's personal dissatisfaction with a job transfer. 461 U.S. at 148. On the other hand, questions about whether public employees felt pressured to work in political campaigns was deemed "a matter of interest to the community upon which it is essential that public employees be able to speak out freely without fear of retaliatory dismissal." Id. at 149. The Supreme Court gave as an example of an area of public concern a situation where an employee seeks to bring to light "actual or potential wrongdoing or breach of public trust" on the part of public employees. Id. at 148.

[36] Here, the initial report of co-worker wrongdoing was not rooted in plaintiff's personal employment situation. Therefore, it does not fall into the category of "personal interest," which the Supreme Court carved out as speech that is generally not constitutionally protected. On the other hand, the minimal level of employee wrongdoing playing cards with an inmate does not seem to arise to the level of breach of a public trust, even though it may well be a violation of an internal rule. Moreover, Baron's personal motivation was not to contribute to the public discourse, but rather was to comply with the instruction of a superior.

[37] Of greater concern is the alleged supervisory tolerance of a pattern of escalating co-worker harassment launched against a corrections officer for reporting an infraction by a fellow officer in a prison setting and then complaining about the harassment. It is apparent that the issue of whether a corrections officer is willing to "walk the blue line" to report wrongdoing within the prison walls is a matter of great interest to the community, and the courts. This problem is analogous to the situation in which a public employee feels pressured to work in a political campaign, which the Supreme Court discussed in Connick. It is essential that corrections officers be able to speak out freely about misconduct without the pressure of a "code of silence" and fear of extreme retaliatory harassment sufficient to force resignation. See Myriam E. Gilles, Breaking the Code of Silence: Rediscovering "Custom" in Section 1983 Municipal Liability, 80 B.U. L. Rev. 17, 63-67 (2000) (describing depth and pervasiveness of problem of codes of silence in law enforcement).

[38] The community has in fact manifested a legitimate concern in the internal workings of the Sheriff's Department. This concern was recently heightened when seven indictments issued in 2000 against two corrections officers for excessive force. See e.g. U.S. v. Eric J. Donnelly and William Benson, (Crim. No. 00-10431-RCL). See also, Francie Latour and Thomas Farragher, Sexual Abuse in Suffolk Prison, Boston Globe, May 23, 2001, at A1 (first of a series of Globe articles chronicling concerns about inmate abuse and mismanagement at the Suffolk County House of Correction). At the Sheriff's request, a Commission was formed by Governor Jane Swift in the fall of 2000 in response to mounting allegations of inmate abuse, patronage, and mismanagement. See generally Report of the Special Commission on the Suffolk County Sheriff's Department ("The Stern Report," named after its Chair, Donald Stern, the former United States Attorney). This report recommended that "the Department should take steps to become more open and increase its internal and external accountability. The Commission urges an aggressive attack on the code of silence that prevents staff members from reporting the misconduct of fellow staff members." Id. at 9 (Emphasis added).

[39] Finally, defendants argue that plaintiff was not discharged by the County, but rather resigned. However, extreme harassment in retaliation for protected speech that results in constructive discharge can constitute a claim under § 1983. See Jeffes v. Barnes, 208 F.3d 49, 64 (2d Cir. 2000) (overturning dismissal of § 1983 case brought by corrections officer subject to harassment for statements made to news media and federal investigators concerning other officers' treatment of inmates).

[40] 2. Due Process Claim