Civil rights - 42 U.S.C. 1983 - First Amendment.

Byline: Mass. Lawyers Weekly Staff

Where the plaintiff, a police chief, claims his termination was in retaliation for his refusal to follow directions of a town administrator and selectman to take adverse actions against certain current and former employees of the police department, his 1983 and discrimination claims may go forward, but he has not stated a plausible claim for a First Amendment violation.

"Robert Eaton has sued the Town of Townsend, the Town Administrator (James Kreidler), and a member of the Board of Selectman (Gordon Clark) for claims arising out of his employment as the Townsend Police Chief. The defendants collectively moved to dismiss part of the Amended Complaint.

"Eaton alleges that shortly after beginning his employment, 'Defendants Clark and Kreidler sought to coerce Plaintiff Eaton to take adverse actions against certain current and former employees of the Townsend Police Department.' According to Eaton, these employment actions included demotions and denial of promotions for individuals with whom Kreidler and Clark had personal issues.

"Count VII asserts a claim against Kreidler and Clark for violations of 42 U.S.C. 1983. Count VIII asserts a claim against Kreidler and Clark for violations of the Massachusetts Civil Rights Act ('MCRA'), Mass. Gen. Laws ch. 12, 11I. MCRA is 'coextensive with 42 U.S.C. 1983, except that the Federal statute requires State action whereas its State counterpart does not.' Batchelder v. Allied Stores Corp., 393 Mass. 819, 823 (1985). Additionally, MCRA is limited to cases in which the 'derogation of secured rights occurs by 'threats, intimidation or coercion.'' Bell v. Mazza, 394 Mass. 176, 182 (1985) (quoting Mass. Gen. Laws ch. 12, 11H). Eaton asserts two theories of constitutional violations. First, he asserts that his First Amendment rights were violated when he was placed on administrative leave and terminated due, in part, to the press release he issued on February 10, 2017. Second, he asserts that his Fifth and Fourteenth Amendment rights were violated when he was denied a genuine hearing prior to his termination. Defendants move to dismiss both theories on grounds of qualified immunity and on the merits.

"'In Garcetti, the Supreme Court held that public employees do not speak as citizens when they 'make statements pursuant to their official duties,' and that accordingly, such speech is not protected by the First Amendment.' Decotiis v. Whittemore, 635 F.3d 22, 30 (1st Cir. 2011)...