Opinion
No. 06-549.
October 6, 2008.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS JOSEPH E. SOLOMON AND JOSEPH ALAIMO'S MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
The plaintiffs Shaun Cronin (Cronin) and his wife Kimberly Cronin (Kimberly) (collectively, Cronins), brought this case against the defendants the City of Methuen (City), the Methuen Police Department (Department), Joseph E. Solomon (Solomon), and Joseph Alaimo (Alaimo) asserting claims arising out of Cronin's resignation from the Department and his allegedly unsuccessful attempts to obtain employment elsewhere. In an August 2006 decision, this court (Murtagh, J.) dismissed all of the Cronins' claims against the City and Department and against Solomon and Alaimo in their official capacities; this court also dismissed the Cronins' claims of slander and negligent infliction of emotional distress against Solomon and Alaimo (collectively, defendant employees).
The remaining claims are against the defendant employees in their individual capacities: tortious interference with contractual relations, intentional infliction of emotional distress, and loss of consortium. The employees move for summary judgment.
The defendant employees have also filed a motion to strike portions of the Cronins' summary judgment opposition (i.e., page 2 n. 1; page 2, first sentence of third full paragraph; page 2 n. 2, final sentence; page 3, third sentence of first full paragraph; page 4, third and fourth sentences of first full paragraph; page 4 n. 4; page 5, parts of first full paragraph; page 6, first full sentence; and parts of pages 6 and 7); Exhibits 1 through 5 to the Cronins' summary judgment opposition; and portions of the Cronins' response to the defendant employees' Rule 9A statement (i.e., ¶¶ 3, 4, 24, 34, 45, 71, 72, 84, 89, 94, 95, 98, and 99). Given this court's conclusion, below, it need not address this motion.
BACKGROUND
The following facts are viewed in the light most favorable to the non-moving party. Humphrey v. Byron, 447 Mass. 322, 325 (2006).
Cronin was employed as a patrolman with the Department for seventeen years, from April of 1987 through June of 2003. Before his employment with the Department, in 1986, Cronin pled guilty to operating under the influence of alcohol and hitting a telephone pole in Amherst, Massachusetts (Amherst Incident). His license was suspended and he paid a fine as restitution for having struck the telephone pole. The police report for the Amherst Incident indicates that Cronin made statements to the responding officer that the accident was a suicide attempt. Although Cronin denies that he had been trying to commit suicide, he does not deny that he made the statement to the police officer.
During his seventeen years with the Department, Cronin was disciplined three times: in 1994, when he was suspended for one day for abuse of sick time; in 2002, when he was issued a five-day suspension, held in abeyance, for an incident involving his stepdaughter (2002 Incident); and in 2003, when he was placed on administrative leave for filing a false report (2003 Incident). The last two incidents contributed to Cronin's eventual separation from the Department.
The 2002 Incident occurred on September 12, 2002, while Cronin was working the 4:30 p.m. to 12:30 a.m. shift. He received a telephone call from his wife who told him that her daughter and Cronin's stepdaughter, Kayla, had not returned home from school and was at a friend's house. The area where he first searched for Kayla was within his assigned sector; the area where he ultimately located Kayla was not within his sector. Without receiving permission from a supervisor, Cronin left his sector with an officer he had contacted for assistance and went to retrieve Kayla from an apartment building. Cronin found Kayla hiding, and she kicked and screamed as she tried to get away, refusing to leave with him. In response, Cronin handcuffed her, took her from the residence, placed her in the backseat of his cruiser, and delivered her to his wife at their home.
Prior to this incident, Kayla had been hospitalized three times for mental illness. The diagnosis from these hospitalizations appeared to be some type of bipolar disorder.
The shift commander at that time was Lieutenant Thomas Fram (Fram). Fram became aware of the 2002 Incident when a civilian reported to Fram that Cronin had "barged in[to]" his apartment and removed Kayla in handcuffs. Fram Deposition, Exhibit E to Defendants' Summary Judgment Motion, at 23. Fram called Cronin to his office to discuss the matter, and, then, informed his own supervisor, Captain Joseph Harb (Harb). Solomon, then the acting chief of police, learned of the 2002 Incident, and the Department's professional standards division investigated.
Solomon reported the 2002 Incident to the Attorney General's office and to the District Attorney's office, requesting that they issue Cronin "transactional immunity, which provides him immunity from being charged with a crime; therefore, he would[] [not] be charged with a felony because he would lose his pension" otherwise. Solomon Deposition, Exhibit C to Defendants' Summary Judgment Motion, at 59. After the professional standards division completed its investigation, Cronin and the Department entered into an agreement regarding his punishment for the 2002 Incident. Pursuant to this agreement, Cronin received a five-day suspension that was to be held in abeyance pending his completing Employee Assistance Program counseling. Cronin views this agreement as a "break" to him, Cronin Deposition, Exhibit A to Defendants' Summary Judgment Motion, at 227, because he understands that his conduct during the 2002 Incident was in violation of Department rules, regulations, policies, and procedures.
The 2003 Incident occurred on May 11, 2003. On that date, Cronin was "assisting another officer with a minor traffic accident by redirecting traffic." Cronin Deposition, Exhibit A to Defendants' Summary Judgment Motion, at 276. While Cronin was outside his cruiser, a dispatcher contacted him and asked him if he was calling the station; Cronin responded that he was not and informed the dispatcher that he was directing traffic. Two days later, the Department's began an internal affairs investigation into an alleged "radio click."
The defendant employees provide the following definition of radio click: "a situation in which a radio transmission being sent by an individual is `stepped on' or blocked by an individual attempting to transmit simultaneously on the same radio signal and channel. The result of such a scenario is that the simultaneously transmitting parties are unaware that their particular transmission was not sent properly, and third parties are unable to ascertain the content of the transmissions." Defendant Employees' Statement of Material Facts, ¶ 31 n. 6. This court accepts this undisputed definition.
From May of 2002 through May of 2003, a time period that included the 2002 Incident but ended just prior to the 2003 Incident, the Department conducted an annual performance review of Cronin. On the Officer Assessment Report (Annual Review) Cronin's supervisor, Sergeant Kevin J. Martin (Martin) filled out after the year-long review of Cronin, Cronin received "Above Average" ratings for nine out of fourteen categories, and "Good" ratings for the remaining five categories; Cronin did not receive any "Needs Improvement" ratings. Cronin signed the Annual Review on May 6, 2003, indicating that he "Agree[d]" with the assessment. Fram signed the Annual Review on May 6, 2003, also indicating his agreement. On May 12, 2003, Harb, Solomon, and Alaimo signed the Annual Review, as required; all three men indicated their disagreement with the assessment.
Other than Harb's signature, it is difficult to read the signatures on the Annual Review, included as Exhibit F to the Defendants' Summary Judgment Motion. In their statement of facts, the defendant employees indicate — and the Cronins do not dispute — that the signatures belong to Harb, Solomon, and Alaimo.
Cronin alleges that his immediate supervisors, i.e., Martin and Fram, "were muscled into trying to change [Cronin's] evaluation" and when they did not, Harb, Solomon, and Alaimo wrote in their negative comments. Cronin Deposition, Exhibit A to Defendants' Summary Judgment Motion, at 313. Fram disputes this allegation, as does Harb.
A disciplinary hearing on the 2003 Incident was scheduled for June 12, 2003. Rather than hold the hearing, however, Cronin's union attorney and representatives, the City's solicitor, and the Department, including Solomon, negotiated Cronin's separation. The parties agreed that Cronin would "take a leave of absence effective June 30, 2003 and on January 3, 2004 at 5 p.m. resign from the position of police officer with the City" during which time, Cronin would "utilize all the sick time [he] [had] available. Once [his] sick time [had] run out . . . the City [would] continue[] to pay [him] for the balance of time remaining on [his] leave of absence." Exhibit I to Defendants' Motion for Summary Judgment, at 1 (2003 Release). Also in the 2003 Release, Cronin "waive[d] any and all rights to hereafter seek in any administrative or court forum continuation in or reinstatement to the position of police officer with the City of Methuen or to claim beyond the benefits provided in [the 2003 Release] any further rights or to make any claims as to the city and/or its officers, servants and employees." Id.
Between June of 2003, when he left the Department, and January of 2004, when he stopped receiving payments from the Department, Cronin was not employed. In January of 2004, he applied for unemployment benefits. He worked for approximately one week as a security guard at the Prudential Center mall in Spring 2004, and did not work again until mid-September of 2004 when he worked for Lowell Armored Car as an armored car driver. He left that job in December 2004 to work for the Department of Homeland Security as a transportation security screener. He stayed in that job until November of 2005 when he became the supervisor of the overnight shift at Fisher College. In May of 2006, the United States Postal Service hired Cronin as a postal carrier; he still holds that job. At his deposition, Cronin testified that he was hired for these jobs because the employers did not "check with the city of Methuen, other than contacting them to verify [he] worked there." Cronin Deposition, Exhibit A to Defendants' Summary Judgment Motion, at 340.
During his deposition, Cronin testified that during this period of unemployment, when he was not "going through the application process" for various jobs, he was "[s]itting around the house. . . . [a]ll the time." Cronin Deposition, Exhibit A to Defendants' Summary Judgment Motion, at 351-352.
Cronin specifies several employers who he alleges declined to hire him after speaking with the defendant employees as part of their background check of Cronin. Cronin's basis for his claim that the defendant employees' interference precluded his hiring for a number of positions is his assertion "[t]hat the potential employers said that they were going to call the [Department] and then [he] was never hired by anybody that did" contact the Department. Cronin Deposition, Exhibit A to Defendants' Summary Judgment Motion, at 410. Cronin testified at his deposition, however, that he does not know whether this contact with any Department employee actually took place.
In his complaint, Cronin alleges he applied for jobs at the Lawrence Police Department; at Merrimack College; in Brentwood, New Hampshire, as a prison guard; at the Water Street Detention Center in Methuen; at Emmanuel College; at Regis College; at the Pelham, New Hampshire, police department; at the University of Massachusetts, Lowell; at Worcester State College; and at Beth Israel Deaconess Medical Center. At his deposition, Cronin testified that he additionally applied for jobs at Access New Hampshire; at Assumption College; at BAE Systems; at Booz, Allen, Hamilton Security; at the Massachusetts Society for the Prevention of Cruelty to Animals; at Fidelity Investments; at Boston University, both at the Medical Center's Department of Public Safety and at the Police Department; and at the Tewksbury Hospital Police Department.
Cronin further testified that "[i]t doesn't take a brain surgeon" to make the inferential leap that Department employees made negative statements about Cronin to potential employers because "[e]very time [he] [would] apply for a job that doesn't check with Methuen, [he] [would] get it. Every time [he] [would] apply for a job that says they're going to check with Methuen, [he] [does not]." Cronin Deposition, Exhibit A to Defendants' Summary Judgment Motion, at 411.
Alaimo, the deputy chief of the Department, testified at his deposition that he has "never spoken to anybody, ever, about Mr. Cronin. . . . No one has ever called [him], and [he] [has] never spoken to anybody about him, for him, against him. Never spoke to anybody." Alaimo Deposition, Exhibit D to Defendants' Summary Judgment Motion, at 169, 170. In his affidavit, Lawrence Police Department (Lawrence Police) chief of police, John Romero (Romero) corroborates this claim, stating that he has "had no conversations" with Alaimo "regarding Mr. Cronin or his application for employment with the [Lawrence Police]." Romero Affidavit, Exhibit A to Defendants' Response to Cronins' Opposition, ¶ 8.
Solomon, however, testified that two potential employers contacted him about Cronin. First, Solomon testified at his deposition that he received a telephone message from a school's police chief; Solomon was unable to recall the name of the individual or of the institution. Solomon and the individual exchanged voicemail messages, but they never actually spoke to each other. Second, Captain Molchan (Molchan) from Lawrence Police asked Solomon for "all the background information and packages on . . . Cronin, personal, internal affairs, and everything, and [Solomon] said [he] [would not] release anything without a signed release form." Solomon Deposition, Exhibit C to Defendants' Summary Judgment Motion, at 148-149.
As set forth below, Molchan wrote in an internal Lawrence Police memorandum that Solomon "would not recommend Shaun Cronin to the position of patrolman in Lawrence" for a number of reasons, thereby contradicting Solomon's deposition testimony. Exhibit B to Defendants' Response to Cronins' Opposition, at 4.
In an affidavit, Lawrence Police chief, John Romero (Romero) stated that he spoke with Solomon regarding Cronin and that
"Solomon stated that, in compliance with the written authorization of Mr. Cronin, the [Department] would provide the [Lawrence Police] with the material maintained by the [Department] regarding Mr. Cronin. Chief Solomon further indicated that, beyond the production of the requested material, he could not comment further on Mr. Cronin's application for employment. . . . At no time during that conversation did Chief Solomon disparage or badmouth Mr. Cronin, nor did he comment negatively on Mr. Cronin's application with the [Lawrence Police]."
Romero Affidavit, Exhibit A to Defendants' Response to Cronins' Opposition, ¶¶ 6-7.
Cronin's application process with the Lawrence Police involved submitting a written application, sitting for a preliminary interview with background investigators, and having an interview with Romero and three or four Lawrence Police officers. Romero told Cronin "he was going to call the [Department] chief's office and . . . speak to him about [Cronin's] transfer" to Lawrence Police from the Department. Cronin Deposition, Exhibit A to Defendants' Summary Judgment Motion, at 431. Beyond this statement, Cronin is not aware "whether that telephone call ever took place[.]" Cronin Deposition, Exhibit A to Defendants' Summary Judgment Motion, at 432. Cronin left this final interview with the chief "thinking [he] was going to be on the Lawrence Police within 48 hours" based on representations of one of the officers present at the interview.
In his affidavit, Romero states that, during that interview, Cronin "was not told that he would be hired by the [Lawrence Police]." Romero Affidavit, Exhibit A to Defendants' Response to Cronins' Opposition, ¶ 11.
Prior to this interview with Romero, "someone . . . took some steps to help [Cronin] get [an] interview" with the mayor of Lawrence. Cronin Deposition, Exhibit A to Defendants' Summary Judgment Motion, at 419. At this meeting, Cronin told the mayor his "reasons for wanting to leave Methuen, specifically the incident with Kayla and with the handcuffing of Kayla, and basically [his] desire to become a Lawrence police officer. . . . [I]n passing, . . . [he said] something, `Now they're writing me up for radio clicks,' or something of that nature." Cronin Deposition, Exhibit A to Defendants' Summary Judgment Motion, at 420. At this interview, the mayor informed Cronin that, "as long as [the Lawrence Police] Chief . . . agreed, that [the mayor] would gladly see [Cronin] as a member of the Lawrence Police Department." Cronin Deposition, Exhibit A to Defendants' Summary Judgment Motion, at 422.
During Cronin's application process with the Lawrence Police, he signed a release of information to the Lawrence Police. This release, dated January 6, 2004, stated that he "consent[ed] to have an investigation made as to [his] moral character, reputation, and fitness for the position to which [he] [had] applied." Exhibit J to Defendants' Summary Judgment Motion (2004 Release). Cronin "also authorize[d] and request[ed] every person, firm, company, corporation, governmental agency, court, association or institution having control of any documents, records and other information pertaining to [him], to furnish to the Lawrence Police Department any such information, including documents, records, files regarding charges or complaints filed against [him], formal or informal, ending or closed, or any other pertinent data, and to permit the Lawrence Police Department or any of its agents or representatives to inspect and make copies of such documents, records, and other information." Id. In relation to this authorization, Cronin also "release[d], discharge[d] and exonerate[d] the Lawrence Police Department, its agents and representatives, and any person so furnishing information from any and all liability of every nature and kind arising out of the furnishing or inspection of such documents, records and other information or the investigations made by or on behalf of the Lawrence Police Department."Id.
Pursuant to the 2004 Release, Molchan went to the Department where Department Captain Edward Guy (Guy) turned over the requested materials.
Exhibit L to the defendant employee' summary judgment motion is an Department "Property Routing Slip" that lists the property Guy turned over to Molchan on February 9, 2004. The Department turned over Cronin's "Professional Standards File" which included the following:
"— TWO MANILA FOLDERS (TITLES LISTED BELOW)
1. DEPT. RULES AND REGULATIONS VIOLATIONS
2. CONDUCT UNBECOMING, NEGLECT OF DUTY AND CRIMINAL CONDUCT COMPLAINT.
— ONE GREEN HANGING FOLDER WITH 7 MANILA FOLDERS (TITLES LISTED BELOW)
1. CRONIN, SHAUN INVESTIGATION 2/8/98 DISCHARGE OF FIREARMS.
2. CRONIN, SHAUN 7/5/94 SICK ABUSE
3. CRONIN, SHAUN
4. CRONIN, SHAUN
5. CRONIN, SHAUN 1/15/91 M/V ACCIDENT
6. COMPLAINT GIGLIOTTI, V IA CRONIN
7. MISSED COURT DATE 8/6/98 SGT MARTIN — OFF CRONIN[.]"
Exhibit L to Defendants' Summary Judgment Motion (capitalization in original).
In an interoffice memorandum to Cronin's file which was dated February 10, 2004, but included information he learned during his interview with Cronin on February 18, 2004, Molchan wrote up a summary of Cronin's background, including the Amherst Incident. He also described the 2002 and 2003 Incidents. Molchan also wrote that he spoke with Solomon in the course of conducting his background check of Cronin. Solomon "would not recommend Shaun Cronin to the position of patrolman in Lawrence. He stated that [Cronin] has too many issue[s]. [Solomon] feels that if [Cronin] was appointed to the [Lawrence Police] he would abuse his power as a Lawrence Police Officer and be pulling over Methuen Officers and ticketing them. . . . [Solomon] told [Molchan] that [Cronin] was not messed up or dirty. [He] believed [Cronin] was just looking for medals and recognition." Exhibit B to Defendants' Response to Cronins' Opposition, at 4. Molchan also wrote that he spoke with Alaimo who "also believes [Cronin] would be a problem for the [Lawrence Police] if hired."Id.
With respect to this information quoted above regarding Molchan's conversations with Solomon and Alaimo, Romero claims that he has "no personal knowledge of any such conversations" and that he "did not review that portion of the Molchan memorandum during the pendency of Mr. Cronin's application, nor was [he] aware of such information at the time that the determination was made that Mr. Cronin's candidacy for a lateral transfer would not result in an offer of employment." Second Romero Affidavit, Exhibit C to Defendants' Response to Cronins' Opposition, ¶¶ 5-6.
Cronin testified during his deposition that he understood that, "as a result of signing [the 2004 Release] [he] was authorizing the Methuen Police Department to release all information it had regarding [him][.]" Cronin Deposition, Exhibit A to Defendants' Summary Judgment Motion, at 425-426. He also testified, however, that he did not believe the 2004 Release extended to "impertinent data such as" the Amherst Incident. Cronin Deposition, Exhibit A to Defendants' Summary Judgment Motion, at 427.
Cronin learned from a family friend, Ron Ford (Ford), that Lawrence Police were not going to hire him; Ford did not indicate that Romero had spoken to Solomon or Alaimo regarding Cronin's employment. On the third day of his deposition, Cronin testified that, "after day two of [his] deposition," he ran into former Lawrence Police officer Mary Bartlett (Bartlett) who informed Cronin that, around the time of Cronin's application to the Lawrence Police, she told Romero "that she knows [Cronin] and she thinks [he is] a good guy." Cronin Deposition, Exhibit A to Defendants' Summary Judgment Motion, at 464. "[S]he said . . . she was told by [Lawrence Police] Chief . . . that Solomon and Alaimo, quote, killed [Cronin], [Lawrence Police] just can't put [Cronin] on, nobody had a nice thing to say about [him]." Id.
At Cronin's deposition, Solomon's attorney asked him if he had any "personal information as to whether Chief Solomon had any contact with anyone associated with the Lawrence Police Department," to which Cronin responded: "Oh, please. He did. You know it. I know it, everyone in the planet knows it. . . . You know how it's done. Come on. You know exactly what he did. You know exactly how he did it. You're doing your job in defending him,. . . . [b]ut you know how he did it, it's all back doors, it's all whispers. You know exactly what he did." Cronin Deposition, Exhibit A to Defendants' Summary Judgment Motion, at 608-609.
Cronin submitted an affidavit from Michael E. Hatem (Hatem) who was an Department lieutenant from 1972 until his retirement in 2006. In his affidavit, he recounts an encounter he had with Solomon and Alaimo. Solomon informed Hatem that the Lawrence Police was considering hiring Cronin and "stated: `I told Romero that he [Cronin] hates us, and if he [Cronin] [messes] with us when we are in Lawrence, we'll sue him [Romero].'" Hatem Affidavit, Exhibit 2 to Cronins' Opposition to Defendants' Summary Judgment Motion, ¶ 23 (alterations in original) (Hatem Affidavit). "Alaimo then stated: `And he's [Romero] our friend too.'" Hatem Affidavit, ¶ 24 (alteration in original). Hatem "understood this to mean that Romero was Chief Solomon and Deputy Chief Alaimo's friend, and that Romero would do as they asked and not hire [Cronin]." Hatem Affidavit, ¶ 25.
Cronin asserts claims of tortious interference with contractual relations (Count Two) against the defendant employees in their individual capacities; the Cronins each assert that the defendant employees' conduct constituted intentional infliction of emotional distress (Count Five), with Kimberly Cronin's claim arising solely from the actions the defendant employees allegedly took against Cronin; and Kimberly Cronin asserts a claim for loss of consortium (Count Six), contending that the defendant employees' alleged actions against Cronin caused her relationship with Cronin to suffer.
DISCUSSION
Summary judgment is granted where there are no genuine issues of material fact and where the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Commissioner of Corr., 390 Mass. 419, 422 (1983); Community Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976). The moving party may satisfy its burden either by submitting affirmative evidence negating an essential element of the opposing party's case, Flesner v. Technical Commc'ns Corp., 410 Mass. 805, 809 (1991), or by demonstrating "`that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case.'" Carey v. New England Organ Bank, 446 Mass. 270, 278 (2006), quoting Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). "[B]are assertions and conclusions . . . are not enough to withstand a well-pleaded motion for summary judgment." Polaroid Corp. v. Rollins Envtl. Servs., Inc., 416 Mass. 684, 696 (1993).
I. The Releases
The defendant employees rely, in part, on the 2003 and 2004 Releases as barring the Cronins' claims against them. "It is well established that the defense of a release must be raised as an affirmative defense and that the omission of an affirmative defense from an answer generally constitutes a waiver of that defense." Sharon v. Newton, 437 Mass. 99, 102 (2002), citing Mass. R. Civ. P. 8(c) (listing "release" among "matter[s] constituting an avoidance or affirmative defense" that party must "set forth affirmatively"). The defendant employees did not include the 2003 and 2004 Releases among the affirmative defenses in their answer, thus they have waived their right to base their argument on them.
The Cronins do not make this argument, and the defendant employees do not claim — nor does the docket indicate — that they amended their answer to include this affirmative defense.
If the defendant employees had included the Releases as an affirmative defense, the Releases would have protected them from liability as to all claims. First, with the 2003 Release, Cronin waived any rights "to hereafter seek in any administrative or court forum continuation in or reinstatement to the position of police officer with the City of Methuen or to claim beyond the benefits provided in this [2003 Release] any further rights or to make any claims as to the city and/or its officers, servants and employees." (Emphasis added). The last part of this statement precludes Cronin from bringing any action against the defendant employees, even with respect to claims arising after June 12, 2003, the date on which the parties executed the 2003 Release. Arguably, however, the use of the word "hereafter" refers only to the first part of the statement in which Cronin waives his rights to seek reinstatement to the Department. Even if the 2003 Release can be read to limit those waivers set forth in the second and third parts of the statement to claims arising before June 12, 2003, however, the 2004 Release applies to protect the defendant employees from liability.
The 2004 Release permits the Department, including the defendant employees, "to furnish to the [Lawrence Police] . . . any other pertinent data. . . ." The defendant employees made comments to the Lawrence Police concerning their belief that Cronin would abuse his position as an Lawrence Police officer by pulling over and ticketing Department officers and that, if he did so, the Department would sue the Lawrence Police. This information is pertinent to Cronin's fitness for the position as an Lawrence Police employee; the Lawrence Police would not want to hire a police officer who would disregard rules and subject the department to litigation. The defendant employees' comments are therefore within the scope of the 2004 Release. In signing the 2004 Release, Cronin discharged the Department, including the defendant employees, from liability "arising out of the furnishing or inspection of such . . . information. . . ." Thus, if the defendant employees had included the 2004 Release among its affirmative defenses, it would have protected the defendant employees from liability.
This conclusion is not fatal to the defendant employees' motion. As discussed below, the Cronins' claims against the defendant employees fail on their merits.
II. Prospective Employers Other than the Lawrence Police Department
The Cronins' claims against the defendant employees arise out of the defendant employees' alleged communications with employers with whom Cronin sought employment after he left the Department. These communications, they contend, constitute tortious interference with Cronin's prospective contractual relations, resulted in emotional distress, and caused Kimberly's relationship with Cronin to suffer. The summary judgment record indicates, however, that the only prospective employer with whom the defendant employees communicated was the Lawrence Police.
Assuming for purposes of this decision only that Cronin has support beyond his self-serving deposition for his assertion that he applied to and/or interviewed with almost twenty other prospective employers, the defendant employees have demonstrated that Cronin has no reasonable expectation of proving at trial that the defendant employees spoke with those prospective employers, let alone knowingly induced them not to hire Cronin.
Cronin's stated grounds for these assertions with respect to these prospective employers is that they did not hire him after telling him that they planned to call the Department as a reference. He does not base his conclusion on personal knowledge that such contact actually took place, but rather on his belief that "it doesn't take a brain surgeon" to conclude that the only reason the prospective employers did not hire him was because the defendant employees spoke to them. See Gurry v.Cumberland Farms, Inc., 406 Mass. 615, 623 n. 5 (1990) ("[E]vidence . . . derived from depositions and affidavits made on the basis of personal knowledge . . . [is] in the proper form to comprise a record for summary judgment."). These "bare assertions and conclusions" are insufficient to survive the defendant employees' motion for summary judgment. Polaroid Corp., 416 Mass. at 696. The defendant employees' motion for summary judgment as to the Cronins' claims arising out of the defendant employees' alleged communications with prospective employers other than the Lawrence Police must be allowed.
Cronin's statements throughout his deposition that prospective employers told him they planned to contact the Department are also hearsay, "`extrajudicial statement[s] offered to prove the truth of the matter asserted.'" G.E.B. v. S.R.W., 422 Mass. 158, 168 (1996), quotingCommonwealth v. Keizer, 377 Mass. 264, 269 n. 4 (1979). Hearsay cannot defeat a motion for summary judgment. Mitchell v. TAC Technical Servs., Inc., 50 Mass. App. Ct. 90, 91 n. 3 (2000).
III. Lawrence Police Department
The summary judgment record establishes that a factual dispute exists not only as to whether the defendant employees spoke with the Lawrence Police, but also as to what the defendant employees allegedly said to the Lawrence Police about Cronin. Resolving those disputes in the light most favorable to Cronin — and notwithstanding that most of these facts are hearsay — this court assumes for purposes of this decision that the defendant employees told an Lawrence Police employee that they would not recommend Cronin to the Lawrence Police; and that defendant employees speculated to an Lawrence Police employee that, if the Lawrence Police did hire Cronin, Cronin would abuse his power as a police officer by pulling over and ticketing Department officers, in which case the Department officers would sue the Lawrence Police. The Cronins' claims arise out of these communications.
With respect to Solomon, Solomon testified that his only contact with the Lawrence Police was informing Molchan that he would not release Cronin's file to the Lawrence Police without a signed release; Molchan wrote in an internal Lawrence Police memo that Solomon would not recommend Cronin for hire at the Lawrence Police and that Solomon believed if the Lawrence Police hired Cronin, Cronin would pull over Department officers; Romero states in his affidavit that he spoke to Solomon who told him that the Department would not release Cronin's file to the Lawrence Police without written authorization and that Solomon made no negative comments about Cronin, stating instead that he could not comment on Cronin's application; and Hatem states in his affidavit that Solomon told him that he told Romero that if Cronin messed with them when they are in Lawrence, they would sue Romero.
With respect to Alaimo, Alaimo testified in his deposition that he did not speak to any potential employers about Cronin; Romero corroborates this contention in his affidavit, stating that he did not speak to Alaimo about Cronin; in the Hatem Affidavit, Hatem recounts his conversation with Solomon and Alaimo during which Solomon's comments indicated that only he spoke to Romero; in his internal Lawrence Police memorandum, however, Molchan wrote that Alaimo told him that Cronin would be a problem if the Lawrence Police hired him.
Finally, Cronin testified in his deposition that Bartlett, a former Lawrence Police officer, told him that Romero told her that both Solomon and Alaimo "killed" Cronin's chances with the Lawrence Police.
Hearsay is "an `extrajudicial statement offered to prove the truth of the matter asserted.'" G.E.B. v. S.R.W., 422 Mass. 158, 168 (1996), quoting Commonwealth v. Keizer, 377 Mass. 264, 269 n. 4 (1979). Hearsay "is `unacceptable to defeat summary judgment,' . . . [because of] the desirability of avoiding a futile trial for lack of competent evidence. . . ." Mitchell v. TAC Technical Servs., Inc., 50 Mass. App. Ct. 90, 91 n. 3 (2000), quoting Madsen v. Erwin, 395 Mass. 715, 721 (1985). The Hatem Affidavit contains hearsay, as the Cronins have offered Hatem's recounted conversation with the defendant employees about their earlier conversation with Romero as proof that the defendant employees actually made those statements to Romero. Cronin's contention in his deposition with respect to his conversation with Bartlett, who told him that Romero told her that the defendant employees told him that the Lawrence Police should not hire Cronin, is also hearsay as he offers his testimony as proof, again, that the defendant employees told Romero not to hire Cronin. See id. (noting that "the reasoning underlying that rule" that hearsay in affidavit cannot defeat summary judgment "is equally applicable to the hearsay testimony in a deposition").
A. Tortious Interference with Contractual Relations — Count Two
A claim of tortious, or intentional, interference with contractual relations requires the plaintiff to "prove that (1) he had an advantageous relationship with a third party (e.g., a . . . prospective . . . employment relationship); (2) the defendant knowingly induced a breaking of the relationship; (3) the defendant's interference with the relationship, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant's actions."Blackstone v. Cashman, 448 Mass. 255, 260 (2007), citing Weber v.Community Teamwork, Inc., 434 Mass. 761, 781 (2001). Cronin alleges that the defendant employees' comments to the Lawrence Police induced the Lawrence Police to not hire Cronin, intentionally breaking his prospective employment relationship with the Lawrence Police.
Cronin need not prove both improper motive and improper means; rather, [t]he standard . . . is interference accompanied by improper motive or improper means. . . ." Kurker v. Hill, 44 Mass. App. Ct. 184, 191 (1998) (emphasis in original); see Conway v. Smerling, 37 Mass. App. Ct. 1, 7 (1994) (noting that an "essential element" of this tort "is that defendant has acted without lawful cause"). Improper means can consist of, for example, "disparaging comments . . ., false statements, . . . [or] improper leverage to coerce" the breaking of the relationship. Dziamba v. Warner Stackpole LLP, 56 Mass. App. Ct. 397, 408-409 (2002); Kurker, 44 Mass. App. Ct. at 191 ("`[I]mproper means' may consist of a violation of a statute or common law precept." (citingUnited Leasing Corp. v. Geltman, 406 Mass. 811, 817 (1990))). For purposes of this discussion only, the court will assume that the defendant employees' comments to the Lawrence Police about Cronin constitute an improper means.
"Communications between former and prospective employers concerning an employee are . . . privileged." White v. Blue Cross Blue Shield of Mass., Inc., 442 Mass. 64, 69 (2004). This privilege "serve[s] the important public purpose of promoting the free flow of information in the workplace," id., as well as the public's "interest in having a police force comprised of competent and able individuals." Mulgrew v. Taunton, 410 Mass. 631, 635 (1991). The defendant employees rely on this privilege for their argument that, even if their alleged comments to the Lawrence Police constitute an improper means, their comments are protected. Williams v. B K Med. Sys., Inc., 49 Mass. App. Ct. 563, 573 (2000) ("`No question of privilege arises unless the interference would be wrongful but for the privilege.'" (quoting United Truck Leasing Corp., 406 Mass. at 816)); Kurker, 44 Mass. App. Ct. at 192 (considering — and ultimately rejecting — defendants' argument that privilege shielded them from liability only after court first determined that defendants used improper means in interfering with plaintiff's advantageous business relations).
"[J]ustification for one's conduct [such as pursuant to a privilege] is an affirmative defense to be proved by the defendant. . . ."United Truck Leasing Corp., 406 Mass. at 812, citing Owen v. Williams, 322 Mass. 356, 360 (1948); Williams, 49 Mass. App. Ct. at 573 ("[P]rivilege is affirmative defense to claim of contractual interference under Massachusetts law[.]" (citing Charles River Data Sys., Inc. v.Oracle Complex Sys. Corp., 788 F. Supp. 54, 59 (D. Mass. 1991)). Unlike the situation with respect to the 2003 and 2004 Releases, the defendant employees asserted as an affirmative defense that they "were privileged in their actions and conduct and the [Cronins'] claims therefore are barred." Defendants' Answer, Second Affirmative Defense, at 17.
The initial burden is on the defendant employees "to show facts which create the qualified privilege." Humphrey v. National Semiconductor Corp., 18 Mass. App. Ct. 132, 134 (1984). As the privilege is lost "only when the employer recklessly makes `unnecessary, unreasonable or excessive' publications[,]" White, 442 Mass. at 69 (citation omitted), the burden then shifts to Cronin "to prove that the privilege had been abused." Humphrey, 18 Mass. App. Ct. at 134.
In Mulgrew, the chief of the police department from which the plaintiff had resigned wrote a letter to the committee deciding the plaintiff's request for reinstatement. 410 Mass. at 633-634. In the letter, the chief wrote "that the plaintiff's performance as a police officer had been poor; that the plaintiff had been a `sick day' abuser; that there were `investigational inconsistencies and unanswered questions' regarding the plaintiff's version of the incident [precipitating his resignation] . . .; and that the plaintiff had left the department under a `cloud of suspicion.'" Id. at 634. The plaintiff's argument that the chief had abused his privilege because he "did not have a sufficient basis upon which" to make the statements in the letter failed as the records supported the chief's statements. Id. at 636-637.
Here, the record similarly supports the defendant employees' comments to the Lawrence Police. Cronin was disciplined on at least three occasions, and all three occasions demonstrate his failure to adhere to the Department's rules and procedures. Based on this history, it was reasonable for the defendant employees to have speculated that Cronin would continue to disregard the Lawrence Police's rules and pull over Department officers to ticket them. The defendant employees' comments to the Lawrence Police are consistent with the rationales behind this privilege, promoting the free flow of information and having a police force comprised of lawful and competent officers. Id. at 635. They therefore "had a privilege, if not a duty, to speak the truth even if the disclosure of the facts might negatively affect [Cronin's] job prospects." Conway, 37 Mass. App. Ct. at 7-8. A contrary ruling by this court would undermine society's interest in promoting candor by persons recommending police officer candidates.
Cronin has not demonstrated that the defendant employees abused this privilege. In fact, Molchan wrote in his internal memorandum that Solomon specifically stated that Cronin "was not messed up or dirty." The court infers that Solomon meant that Cronin was not mentally ill or corrupt. The Hatem Affidavit is consistent with Molchan's memo, and does not indicate that Solomon stated that Cronin was corrupt or unethical. See, e.g., id. at 2, 8 (noting that defendants would have abused privilege if their purpose in disclosing to plaintiff's potential employers that "circumstances surrounding [plaintiff's] leaving is the subject of an investigation by" police "had been to besmirch [plaintiff] to disguise their own dereliction"). Cronin has therefore not satisfied his burden such that the defendant employees lose the protection of this privilege.
To the extent that Cronin also alleges that the defendant employees' allegedly providing the Lawrence Police with information concerning the Amherst Incident is actionable conduct, Cronin's claim also fails. As noted above, the defendants had a privilege to provide the Lawrence Police with the information they had about Cronin, "even if the disclosure of the facts might negatively affect [Cronin's] job prospects." Conway, 37 Mass. App. Ct. at 7-8. Although Cronin now claims that the Amherst Incident inaccurately characterizes him as suicidal at that time, provision of this material to the Lawrence Police does not constitute an abuse of the defendant employees' privilege as they did not, for example, fabricate any claims against Cronin in order to "besmirch" him in any way. See id. at 8. Contrary to Cronin's argument, the Amherst Incident information is within the scope of the 2004 Release, which permitted the Department to provide the Lawrence Police with "files regarding charges or complaints filed against [Cronin], formal or informal, ending or closed. . . ."
The defendant employees' motion for summary judgment with respect to Count Two, alleging tortious interference with contractual relations, must be allowed.
B. Intentional Infliction of Emotional Distress — Count Five
The Cronins claim that, through their communications to the Lawrence Police, the defendant employees intentionally inflicted emotional distress on the Cronins. A claim of intentional infliction of emotion distress requires evidence "`(1) that the defendant intended to inflict emotional distress, or knew or should have known that emotional distress was the likely result of his conduct, . . . (2) that the defendant's conduct was extreme and outrageous, beyond all possible bounds of decency and utterly intolerable in a civilized community, (3) [that] the actions of the defendant were the cause of the plaintiff's distress, and (4) [that] the emotional distress suffered by the plaintiff was severe and of such a nature that no reasonable person could be expected to endure it.'" Tetrault v. Mahoney, Hawkes Goldings, 425 Mass. 456, 466 (1997), quoting Payton v. Abbott Labs, 386 Mass. 540, 555 (1982).
A plaintiff cannot base liability for this tort on "`mere insults, indignities, threats, annoyances, petty oppressions or other trivialities,' nor even is it enough `that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice" or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort[.]'" Foley v. Polaroid Corp., 400 Mass. 82, 99 (1987), quoting Restatement (Second) of Torts § 46, cmt. d (1965). Liability for intentional infliction of emotion distress "`has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Id., quoting Restatement (Second) of Torts § 46, cmt. d (1965). Outrageousness "means, for example, a high order of reckless ruthlessness or deliberate malevolence that . . . is simply intolerable." Conway, 37 Mass. App. Ct. at 8.
As concluded above, the defendant employees' comments to the Lawrence Police were reasonable given Cronin's history with the Department. They refrained from making reckless statements such as, for example, accusing Cronin of being corrupt, mentally ill or unethical. See id. Therefore, even if the defendant employees made their statements to the Lawrence Police intending to cause the Cronins emotional distress, the Cronins have not demonstrated a reasonable likelihood of proving that the defendant employees' conduct was extreme, outrageous, beyond the bounds of decency, and utterly intolerable. See Carey, 446 Mass. at 278. The defendant employees' motion for summary judgment as to Count Five must be allowed. C. Loss of Consortium — Count Six
Courts permit defendants to assert privilege as a justification for this tort as well. Beecy v. Pucciarelli, 387 Mass. 589, 596 (1982) (recognizing that "`one who, without a privilege to do so, by extreme and outrageous conduct intentionally causes severe emotional distress to another, with bodily harm resulting from such distress, is subject to liability for such emotional distress and bodily harm'" (quoting George v. Jordan Marsh Co., 359 Mass. 244, 255 (1971))). Thus, even if the defendant employees' comments could be construed as extreme and outrageous, the privilege analysis set forth above would apply, protecting the defendant employees from liability. See id. (holding that, as defendant's conduct could not be characterized as extreme and outrageous, there was no need to "address[] any of the other elements of this cause of action, including the issue of privilege").
The purpose of a claim of loss of consortium "is to compensate for the loss of the companionship, affection and sexual enjoyment of one's spouse, and it is clear that these can be lost as a result of psychological or emotional injury as well as from actual physical harm."Agis v. Howard Johnson Co., 371 Mass. 140, 146 (1976); see Pinheiro v.Medical Malpractice Joint Underwriting Ass'n of Mass., 406 Mass. 288, 292 n. 5 (1989) (noting that injuries "consortium plaintiff" may suffer "include the `loss of companionship and affection, of sexual enjoyment, and of prospects of [parent]hood.'" (alteration in original) (quotingDiaz v. Eli Lilly Co., 364 Mass. 153, 160 (1973))). Although that "loss is separate from that incurred by the bodily-injured plaintiff,. . . . [and] `independent of the damage claim of the injured spouse[,]'"Pinheiro, 406 Mass. at 292 n. 5 (citation omitted), "a claim for loss of consortium requires proof of a tortious act that caused the claimant's spouse personal injury." Sena v. Commonwealth, 417 Mass. 250, 264 (1994).
Kimberly Cronin bases her loss of consortium claim on the defendant employees' conduct against Cronin. As concluded above, Cronin's claims against the defendant employees fail. Therefore, Kimberly Cronin has not satisfied "the implicit prerequisite [to a loss of consortium claim] that the injured spouse have a viable claim." Id.; e.g., Short v.Burlington, 11 Mass. App. Ct. 909, 910 (1981) (holding wife's claim for loss of consortium fails "because it is entirely derivative and has no existence apart from a viable claim of the other spouse founded on personal injury"); cf. New England Mut. Life Ins. Co. v. Liberty Mut. Ins. Co., 40 Mass. App. Ct. 722, 727 (1996) (holding, in insurance context, that without underlying acts, "there would have been no personal injuries and, therefore, no basis for a suit against the insureds for misrepresentation, negligence, and loss of consortium").
The defendant employees' motion for summary judgment as to Count Six must be allowed.
ORDER
The defendants Joseph E. Solomon and Joseph Alaimo's motion for summary judgment is ALLOWED .