UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

Transcription

1 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS LEON STUART ) Plaintiff ) ) V. ) ) CITY OF GLOUCESTER, Chief John McCarthy ) and Lieutenant Jeremiah Nicastro, ) in their Official and Individual Capacities ) Defendants ) COMPLAINT INTRODUCTION The Plaintiff, Officer Leon Stuart, brings this action seeking redress for substantial violations of his rights pursuant to the Federal Civil Rights Act, 42 U.S.C. 1983, as well as under the Massachusetts Civil Rights and Whistleblower Acts, M.G.L. C. 149, 185, by retaliating against him for reporting, objecting to, refusing to participate in, and filing complaints about what the Plaintiff reasonably believed were ongoing violations of law and ethical violations within the City of Gloucester Police Department, specifically by Defendants Chief John McCarthy ( Chief McCarthy ) and Lieutenant Jeremiah Nicastro ( Lt. Nicastro ). The Plaintiff brings claims for violations of the common law as well. JURISDICTION The Plaintiff asserts federal jurisdiction under 42 U.S.C. 1983, and pendent jurisdiction of his state law claims under 28 U.S.C PARTIES 1. The Plaintiff, Leon Stuart, is an individual residing in Gloucester, Essex County, Commonwealth of Massachusetts. 2. Defendant City of Gloucester, is a municipality duly incorporated under the laws of the Commonwealth of Massachusetts 3. The Defendant, Chief John McCarthy (Hereinafter Defendant McCarthy or McCarthy ), is employed by the Gloucester Police Department, and currently holds the rank of Chief within the Department.

2 4. The Defendant, Lieutenant Jeremiah Nicastro ( Lt. Nicastro ), is employed by the Gloucester Police Department, and currently holds the rank of Lieutenant within the Department. FACTS Officer Leon Stuart 5. Plaintiff, Officer Leon Stuart (Hereinafter Plaintiff or Stuart ), was previously employed as a Police Officer for the City of Gloucester ( the City or Gloucester ), for approximately 12 years. 6. Plaintiff is, and has always been, a dedicated, energetic and hardworking employee. He is a respected member of the Gloucester Police Department (hereinafter GPD ) and has been an active participant within his community at large. 7. Throughout his career, Officer Stuart has devoted himself to his law enforcement career, placing the public's safety at the forefront, and executing his responsibilities with honesty and integrity. 8. Officer Stuart has never previously been disciplined during his 12 years of service as a member of the Gloucester Police Department. Stuart s Union Activity 9. In 2016, Stuart became the Department s local union president for a bargaining unit of 45 employees. Prior to becoming President, the Plaintiff served in the capacity of a union representative and Treasurer for a total of approximately 9 years. 10. Stuart was an active Union President, who routinely spoke out at City and departmental meetings on matters that pertained to unit members' terms and conditions of employment. 11. The Plaintiff also negotiated with the City and/or the named Defendants over issues concerning proposed changes in working conditions and on multiple occasions, negotiated attempts to reduce or remove discipline that a unit member previously incurred. 12. On May 2, 2017, multiple members of the Gloucester Police Department attended the wake of Gloucester Officer Heath Moseley. Officer Moseley had served under former Chief Leonard Campanello during his tenure with the GPD.

3 13. While former Chief Campanello was leaving the wake he was approached by Detective Thomas Quinn ( Det. Quinn ), Gloucester Police Lieutenant David Quinn s ( Lt. Quinn ) brother. 14. Former Chief Campanello and Det. Thomas Quinn spoke for approximately 10 minutes. Once their conversation had concluded, Det. Quinn then walked toward the other officers congregated in the funeral home driveway. 15. As Det. Thomas Quinn was walking toward the group, his brother, Lt. David Quinn, said in a loud and clearly understandable voice to all assembled, in particular former Chief Campanello, "Hey Tommy, make sure you wipe the cum from your chin from Lenny's cock before you come back to the real officers." 16. The Plaintiff, as well as others who were present, were shocked by the conduct and comment made by Lt. David Quinn, who was in full Gloucester Police Department uniform 17. Present to witness this incident were many Gloucester Police officers, firefighters, uniformed personnel from surrounding public safety agencies, mourners, as well as other members of the general public, who were within earshot of this grossly inappropriate comment. 18. As Det. Quinn approached where his brother, Lt. David Quinn, was standing, an argument ensued and many attendees watched as Lt. Quinn continued to publicly berate and demean his brother further for ostensibly speaking to former Chief Campanello. 19. As a result of the above incident, the Plaintiff went to the office of Donna Leete, the Director of Human Resources for the City of Gloucester. As the Union President, the Plaintiff attempted to discuss his concerns about what had publicly transpired at a fellow officer s funeral and to insure that the City take appropriate disciplinary action regarding Lt. Quinn s conduct. 20. While the Plaintiff was in Ms. Leete s office, with the door closed, both Leete and Plaintiff heard Defendant Nicastro and Lieutenant Quinn standing directly outside the door, attempting to listen to their conversation. Ms. Leete opened the door to her office and both Nicastro and Quinn quickly walked away and left the area. 21. As a result of this incident, the Plaintiff, through counsel, sent a letter on May 11, 2017, to Ms. Leete stating the following: Because of the actions of Lieutenant Quinn, Union President Stuart came to your office today to express the concerns of the GPPA bargaining unit officers and to insure that the City takes appropriate action to make sure that the members of the bargaining unit are not retaliated against or intimidated by the Gloucester

4 Superior Officers. While President Stuart was in your office with the door closed so that he could express the Union's concerns to you in privacy, you and he heard Sergeant Nicastro and Lieutenant Quinn directly outside your door, clearly listening to your discussion. Soon after you opened the door, they walked away and left. It is clear that the actions of police department superior officers was intended to further interfere with President Stuart's Union activity on behalf of his members and to serve to intimidate President Stuart and his members. The GPPA therefore insists that the City of Gloucester take action to investigate the conduct of Gloucester Superior Officers and specifically Lieutenant Quinn and Sergeant Nicastro, to insure that these supervisors cease and desist from taking action to interfere with the GPPA and the patrol officers of the Gloucester Police Department who are asserting their rights under M.G.L. c. 150E. (Exhibit 1) 22. On or about June 29, 2017, the City of Gloucester and Police Chief John McCarthy notified the Plaintiff that he (Plaintiff) was now under investigation concerning the above letter that the Union attorney had sent to HR Director Donna Leete alleging improper actions of Police Department Supervisors and intimidation of union members. 23. The memorandum from Chief McCarthy ordered the Plaintiff to answer a series of questions concerning the Union s internal communications, strategy and representational activities surrounding the decision made by the Union to send a letter of complaint to the HR director, as well as questions concerning the dissemination of the Union s letter and follow-up. 24. The Plaintiff was threatened by Chief McCarthy that this investigation may lead to claimed violations of Departmental Rules and Regulations, Policies and Procedures and result in discipline. (Exhibit 2) 25. As a result of the above-threatened discipline, Plaintiff filed a complaint with the Department of Labor Relations charging Chief McCarthy and the City of Gloucester with prohibited practice(s) under M.G.L. c. 150E. 26. On July 13, 2017, Plaintiff responded to Chief McCarthy s threatening memorandum. Plaintiff stated: This is in response to your memo dated June 29, 2017, concerning Incident at Personnel Office --- May 11, Since I was at the Personnel Office on May 11, 2017 in my position as President of the Gloucester Police Patrolman s Association ( GPPA ), MCOP Local 344, and your question concern my activities as Union President, I have been advised that it is an illegal order for you to require me to answer questions about internal union issues and internal union strategy and communications. That is why the Union has filed a Charge of Prohibited Practices at the Department of Labor Relations, copy enclosed, to challenge this improper investigation. (Exhibit 3)

5 27. The threat of discipline and the potential for the loss of his employment caused the Plaintiff considerable emotional distress and concern. Shortly thereafter, Plaintiff was placed on Injured on Duty ( IOD ) leave for a brief period of time as a result of the significant stress he was experiencing at work. 28. Officer Stuart was evaluated by his physician and notified that he was cleared to return to work on July 20, 2017, with no restrictions. 29. Despite medical clearance from his physician, Chief McCarthy and the City denied Plaintiff s request to return to work and instead insisted on further documentation. 30. On July 20, 2017, Union counsel ed Chief McCarthy and Donna Leete, Director of HR, regarding Plaintiff s sick leave and anticipated return to work. Counsel stated the following: I ve spoken with Officer Stuart about his note, His note states that he is cleared to return to work today, July 20 th with no restrictions; it is my understanding that this is substantively identical to the notes he provided the Department when he was out sick for 16 days this past fall and when he was out sick for roughly12 days last year. In each case, the City raised no concerns with the content of those notes. I would be remiss if I did not express the Union s concern with the potential disparate treatment of Officer Stuart with regard to this note. 31. The continued: As you know, the Union has recently filed an unfair labor practice charge against the City; if the City is taking the position that the content of Officer Stuart s note is insufficient, it is doing so for the first time in close temporal proximity to the filing of that charge. This raises the specter of retaliation. (Exhibit 4) 32. On September 28, 2017, the Plaintiff filed a written complaint regarding Defendant McCarthy s actions with Gloucester Mayor Romeo Theken ( Mayor Theken ). Plaintiff s correspondence stated the following: As we are sure you are aware, over the last several months, the GPPA, has had to take various actions on behalf of its members to protect union rights and activities. Currently, there is an unfair labor practice charge pending as well as two grievances which we found necessary to file. These cannot only have an effect on individual union members, but the entire union body as a whole. Since May 2017, the outspoken stance that my members have asked me to take as Union President, concerning the overall atmosphere and morale at the Police Department, has not been well received by the present police administration. (Exhibit 5)

6 33. The Plaintiff avers that his ongoing Union activities placed him in a position of being targeted by the Department s upper level management. Stuart s Whistleblower Activity 34. Two months after the letter to Mayor Theken was sent, Officer Stuart alleged that his immediate supervisors, namely Lieutenant Jeremiah Nicastro ( Lt. Nicastro ) and Sergeant Christopher Frates ( Sgt. Frates ), had violated Gloucester Police Department Rule (Unjust or Improper Orders) as well as other ethical violations, relating to an arrest that occurred on November 30 th, On that date, the Plaintiff was dispatched to a call for a report of an unwelcome guest at a residence. 36. Upon arriving at the scene, the female caller informed Plaintiff that she wanted the unwelcome guest, a male friend, to leave, but did not provide sufficient information to warrant the initiation of criminal charges. Both parties appeared intoxicated to the Plaintiff. 37. Plaintiff believed that the best course of action was to simply call for a cab for the unwelcome guest to resolve the situation. There was no evidence of a physical confrontation and the Plaintiff did not believe there was probable cause for an arrest or that the calling party was willing to seek any charges. 38. Prior to the cab s arrival, Defendant Sergeant Frates arrived at the scene and ordered the Plaintiff to arrest the unwelcome guest. 39. Plaintiff complied with his superior s order and arrested the individual and charged him with being a disorderly person. 40. The following morning, the Plaintiff was instructed to come to the station by Lt. Nicastro. Defendant Nicastro informed Plaintiff that he wanted the Plaintiff to make changes to his arrest report from the night before. 41. Specifically, Lt. Nicastro told Plaintiff to change his original report, which had stated that Plaintiff was able to complete his interview with the arrestee while at the scene. Lt. Nicastro told Plaintiff to change his report to state that Plaintiff could not complete his interview of the arrested person and therefore enable him to make additional changes at the direction of Lt. Nicastro. 42. During this time period, there was a significant amount of media coverage regarding superior officers within the Massachusetts State Police who had allegedly required officers to alter their arrest reports. Officer Stuart reasonably believed that this conduct was, at a minimum, an ethical violation or potentially criminal conduct.

7 43. As a result of Lt. Nicastro s actions, Officer Stuart subsequently reported attempts by members of the Gloucester Police Department, including the named Defendant Nicastro, to coerce Officer Stuart to change his police report(s)and/or incorporate information that Officer Stuart did not believe were legitimate. 44. Specifically, on December 12, 2017, the Plaintiff sent a memorandum to Chief McCarthy stating that he believe(d) it was wrong to arrest this person on this occasion (the November 30 th arrest) and wrong of the Sgt. and Lt. to require me to do so when there was inadequate basis for the arrest. (Exhibit 6) 45. Officer Stuart has also complained about his reasonable belief that Lt. Nicastro had previously altered and/or produced a false report regarding another incident which had resulted in the arrest of an individual on December 2, On December 2, 2017, at approximately 3:23 am, the GPD responded to a call for service at a Taylor Street residence for a complaint of an alleged assault. Officer Stuart and Officer Christopher Liacos ( Officer Liacos ) were the first responding officers. Sergeant Jerome Ciolino and Lt. Nicastro arrived on the scene shortly thereafter. 47. The December 2 nd incident involved two unrelated Spanish-speaking families (The L s and the M s ) who lived in the same apartment on Taylor Street. 48. During his interview with the Plaintiff and Officer Liacos, Mr. L stated that his wife and their seven-year-old daughter were asleep in their bedroom when they were awakened by Mr. M pulling the blankets off of the two of them. 49. Mrs. L subsequently informed Officer Liacos that she noticed her daughter s nightgown was pulled up, but she had not actually seen Mr. M move her daughter s nightgown or touch any portion of her daughter s body. 50. In an effort to charge Mr. M with the more serious offense of indecent assault and battery on a child under the age of 14, Lt. Nicastro and another officer reviewed relevant case law and learned that rubbing of the abdomen is considered indecent assault and battery so we changed the charge. (Exhibit 7) 51. As a result, Lt. Nicastro changed Officer Liacos report and added the following critical information: Mrs. L was awoken unexpectedly to their roommate Mr. M pulling down the blankets off her daughter and touching her daughters abdomen while pushing up (the daughter s) nightgown. (Emphasis added) 52. Officer Liacos subsequently complained that his report had been changed by Lt. Nicastro to reflect information that he had neither witnessed nor been told by Mrs. L or her husband.

8 53. Lt. Nicastro s fabrication, a required element for the crime of indecent A&B on a child under 14, resulted in Mr. M being charged with that offense. 54. Officer Stuart formally complained to Defendant McCarthy about this misrepresentation of the factual background by Lt. Nicastro and alleged that Lt. Nicastro intentionally manufactured evidence/facts to increase the severity of the charges brought against the arrested individual. 55. The City hired Alfred Donovan to conduct a so-called independent investigation of the Plaintiff s allegations. The Plaintiff was interviewed by Mr. Donovan regarding his observations and his belief that Lt. Nicastro had acted illegally. 56. Despite being interviewed by Mr. Donovan regarding the above complaint; Officer Stuart s testimony was not included in Donovan s final report. Officer Stuart was one of only four officers on scene with first-hand knowledge of the incident. 57. Lieutenant Nicastro has subsequently admitted to amending the original report of the arresting officer and changing the charges lodged against the arrestee from Domestic Assault and Battery to the more serious charge of Indecent Assault and Battery on a minor. Additional Complaints by Stuart and Subsequent Retaliation 58. On or about December 28, 2017, Officer Stuart was involved in an off-duty incident with an individual who the Plaintiff believed to be a serious threat to public safety. 59. On December 28, 2017, at approximately 6:30 PM, Officer Stuart, while a passenger in his brother s car, observed a green Toyota Camry run through the stop sign at Shepard and Maplewood Avenue in the City of Gloucester. 60. The vehicle continued on Maplewood Avenue at an estimated 40 miles per hour speed, in a 25 miles-per-hour zone. In addition, the Plaintiff observed that the vehicle was traveling on the wrong side of the road. 61. Officer Stuart directed his brother to follow the vehicle, based on his impression, that the driver of the vehicle was potentially impaired or, at a minimum, a serious public safety threat. 62. Officer Stuart saw the operator of the vehicle, Shawn Bartholomew, pull into a Gulf gas station. Officer Stuart left his brother s vehicle and identified himself to Bartholomew that he was a GPD officer and that based on his erratic driving he would be issued a citation for the infractions that the Plaintiff had observed.

9 63. Officer Stuart also informed Bartholomew that he was calling for a marked cruiser to arrive to issue the citation, as he had no citation book at that time. 64. According to the police report filed by Patrolman Clifford Alves Jr., "Bartholomew stated that he did cut off those two guys and he was trying to explain it to them. 65. Mr. Bartholomew refused to follow Officer Stuart s instructions to return to his vehicle and wait for the marked GPD to arrive. 66. When he was told a police cruiser was in route to the scene, Bartholomew suddenly moved toward the Plaintiff. A physical struggle began as the Plaintiff attempted to gain control over Bartholomew who was attempting to leave the area and physically assault Stuart. 67. Upon the arrival of a uniformed GPD officer, Mr. Bartholomew was placed under arrest and taken into custody. 68. Mr. Bartholomew was issued a citation for violation of the following; Failing to Stop, Marked Lanes violation and speeding. 69. As a result of the above incident, Officer Stuart suffered an injury to his shoulder and was immediately placed on IOD status. 70. No issue with the manner in which Officer Stuart conducted himself and the arrest was raised with Stuart until February 21, Despite following Department protocol, Officer Stuart became the subject of an unwarranted and unjustifiably delayed Internal Affairs investigation. 71. On February 21, 2018, Chief McCarthy sent Officer Stuart a memo informing him of the investigation and the allegations. (Exhibit 8) 72. The individual who was hired by the City to investigate the Plaintiff for this offduty incident had previously been hired by the City to do the investigations of Defendants Nicastro and Frates. 73. It is significant to note that Mr. Donovan was not properly licensed by the Commonwealth of Massachusetts at the time of either of the investigations he was hired by the City to perform. Mr. Donovan has also been recently criticized by the Massachusetts Civil Service Commission ( CSC ) in two separate decisions regarding the manner he has conducted his investigations. 74. By way of example, the Chairman of the CSC made the following comments regarding Mr. Donovan s investigative techniques in Mulcahy v. City of Somerville (D ):

10 I had other problems with the employee statements. Instead of asking openended questions (i.e. walk me through what you remember being said ), the employees were asked highly leading questions, including the employee being read an alleged statement and then being asked words to the effect, do you remember that being said? Absent a pronouncement that the witnesses had exhausted his/her memory, that is not the type of examination that would be permitted as part of a de novo hearing before the Commission, further undercutting the reliability of those statements. 75. Another example of Mr. Donovan s inability to conduct an independent investigation is described in the CSC s decision in Grasso v. Town of Agawam D ): The Town asked Mr. Donovan to assist with the internal investigation here His testimony, along with the testimony of the Police Chief and the communication between them, however, make it clear that this was not an independent investigation. Donovan added significant charges (including alleged criminal conduct) to his initial report after sharing the report with the Police Chief. Based on all of the relevant testimony, including somewhat confusing testimony regarding what actions constituted criminal conduct, I infer that the only reasons these charges were added was the Chief s request to do so, as opposed to an independent conclusion by Donovan that criminal conduct actually occurred. Further, Donovan, either didn t understand, or did not explain properly in his report, that he had reached an opposite conclusion than his own use-of-force expert (O Laughlin) regarding whether Grasso and Connor engaged in excessive force. 76. In preparation for his interview with Mr. Donovan, Plaintiff s counsel sought copies of the videotapes of the incident at the Gulf Station involving the Plaintiff and Mr. Bartholomew. 77. Despite multiple requests by Officer Stuart and counsel, the City refused to provide Officer Stuart with a copy of the video of the incident of the responding uniformed officer prior to his interview with Mr. Donovan. 78. On February 28, 2018, Officer Stuart was interviewed by Mr. Donovan. Mr. Donovan claimed that the underlying basis for the investigation was the result of issues raised by the District Attorney s office. 79. Mr. Donovan based his questions to the Plaintiff upon a copy of the videotape taken from the gas station where the Plaintiff had informed Bartholomew that a marked cruiser was in route there to give him a citation. In addition to refusing to provide a copy of the video before the interview, Mr. Donovan refused to show the Plaintiff the video during the actual interview. As a result, Officer Stuart was disadvantaged in his ability to fully describe or explain the events of this incident, which had occurred two months earlier.

11 80. On March 6, Officer Stuart s labor counsel, sent Chief McCarthy correspondence asking about the genesis of the Complaint and the reason for the initiation of the investigation. Specifically, counsel requested a copy of the Complaint Report Form which would have indicated whether or not Mr. Bartholomew had filed the complaint against the Plaintiff. It was departmental policy to complete a Complaint Report Form when a complaint was made. Chief McCarthy refused to respond to this request. 81. The March 6, letter stated to Defendant McCarthy stated: In accordance with the Internal Affairs Policy 4.01 Sec III A (2) there should be a complaint report on the complaint report form. Please provide a copy of the complaint report form in this matter. Also, in Sec III B, the policy provides a procedure for recording all complaints. When Officer Stuart was interviewed by Al Donovan the genesis of this complaint was unclear. Officer Stuart is certainly entitled to know who the actual complainant is in this matter. 82. On March 16, 2018, labor counsel ed general counsel for the City, Chip Payson ( Attorney Payson ) and again requested information about the genesis of the complaint and a copy of the Department s Complaint Report Form. 83. In the March 16, , labor counsel wrote; We are also quite concerned by the fact that the timing of this investigation certainly appears to be the result of Union President Stuart s active Union advocacy. (Exhibit 9) 84. On March 28, 2018, Officer Stuart filed a Criminal Complaint Form with the Attorney General s Office regarding the alleged illegal conduct of Lt. Nicastro, in which Nicastro altered police reports. (Exhibit 10) 85. On April 13, 2018, Officer Stuart was provided with notice that his Appointing Authority hearing would be conducted on April 18, On April 16, 2018, Officer Stuart contacted the Attorney General s Office and spoke with Massachusetts State Police Trooper Kevin Baker to complain about the ongoing improprieties in the GPD as well as the continuing retaliation against Officer Stuart. Officer Stuart stated: I am being retaliated against for my recent reported incidents, involving members of the Gloucester Police Department I again plead with the AG s office to take a look at how things are be (sic) handled within my department, public trust and integrity have been jeopardized. I also feel that I should be able to make my report and not be retaliated against I have put my name on the line, trying to do the right thing. (Exhibit 11)

12 87. Prior to his hearing Officer Stuart was subsequently provided with the IA Report completed by Mr. Donovan. The IA Report was incomplete. There was no audio or transcription of the interviews of most of the witnesses, including Mr. Bartholomew. 88. On or about May 8, 2018, Stuart notified the City of Gloucester, Chief McCarthy and Mayor Theken pursuant to the requirements of M.G.L. 149, 185, of his intent to pursue a claim pursuant to the Massachusetts Whistle Blower Protection Act as well as Massachusetts and Federal Civil Rights statutes for violation of his State and Federal civil rights and retaliation for objecting to and refusing to engage in activities protected by state law and for reporting and/or objecting to matters that he reasonably believed to be violations of law or threats to public safety. (Exhibit 12) 89. The letter stated: Officer Stuart has been subjected to repeated threats, intimidation and coercion by multiple members of the Gloucester Police Department for questioning his supervisor s actions and his refusal to participate in activities which he reasonably believes constitute a violation of numerous state laws and threats to public safety. It is patently clear that the retaliation and hostile treatment inflicted on Officer Stuart was done as a direct consequence for his complaints about and refusals to be a part of what he reasonably believed to be illegal and/or unethical conduct. 90. On May 15, 2018, approximately one week after notifying the City of the abovedescribed retaliation, the City conducted a disciplinary hearing regarding the off duty events of December 28, At the Appointing Authority hearing on May 15, 2018, Chief McCarthy admitted that there was never a complaint made by Mr. Bartholomew against Officer Stuart as a result of the December 28, 2017 incident. 92. Chief McCarthy testified that on December 29, 2017, the day after the events at the gas station, that he was allegedly contacted by the Gloucester Times requesting records for the arrest the night before. 93. Chief McCarthy stated that this request caused him to look into the incident and attempt to secure the video of the event. 94. Chief McCarthy testified that the Plaintiff s previous complaints concerning the Liacos and the Holley Street incidents were pending at the time of his decision to look into the December 28 incident at the Gulf gas station. 95. Although the Plaintiff requested it, there was no tape recording permitted of the Appointing Authority hearing conducted by the City.

13 96. Dr. Maria (Maki) Haberfeld, who is a recognized expert in the use of force, was retained by the Union and subsequently conducted a review of Officer Stuart s actions on the night of December 28 th. Dr. Haberfeld concluded the following: It is my professional opinion that on December 28th, 2017, Officer Stuart acted within his discretionary powers when he confronted and used force against Mr. Bartholomew. Officer Stuart s actions were based on his departmental Policies and Procedures, as well as the Use of Force model followed by the GPD and more specifically what is referred to as the Totality Triangle that emphasizes the lawful justification of the use of force based on the 1) Perception of Circumstances, 2) Perceived Subject Actions and 3) Reasonable Officer Response. I therefore conclude that Officer s Stuart s actions were fully justified and his use of force against Mr. Bartholomew was fully within the justified legal framework. 97. Despite this information from Dr. Haberfeld, on June 19, 2018, the Plaintiff was notified that his employment with the Gloucester Police Department had been terminated effective that same day. The City s termination letter stated the following; Based upon the above findings of several policy violations, including the use of unnecessary and unreasonable force and the inaccurate reporting of the facts of a physical altercation he initiated on December 28, 2017, I recommend that the employment of Police Officer Leon Stuart be terminated in accordance with the provisions of the Civil Service law. 98. The following day, on June 20, 2018, Chief McCarthy posted a notice (Exhibit 13) on the Roll Call Board which was seen by the entire Gloucester Police Department. The notice read: TO ALL MEMBERS OFFICER LEON STUART S EMPLOYMENT AS A GLOUCSTER POLICE OFFICER HAS BEEN TERMINATED BY THE CITY OF GLOUCESTER EFFECTIVE JUNE 19, ANY POLICE INTERACTION WITH FORMER OFFICER STUART SHOULD BE VETTED THROUGH LIEUTENANT FITZGERALD OR THE CHIEF. 99. Other members of the GPD had previously been terminated and/or suspended. No such notice was ever posted in a similar manner Officer Stuart has been subjected to repeated threats, intimidation and coercion by multiple members of the Gloucester Police Department for questioning his supervisor s actions and his refusal to participate in activities which he reasonably believes constitute a violation of numerous state laws and threats to public safety.

14 101. It is patently clear that the retaliation, hostile treatment and ultimately the termination of Officer Stuart was done as a direct consequence for his complaints about and refusals to be a part of what he reasonably believed to be illegal and/or unethical conduct. COUNT ONE- VIOLATION OF CIVIL RIGHTS 42 U.S.C., 1983 v. Defendants City of Gloucester and Defendant McCarthy and Nicastro in their official and individual capacities 102. The Plaintiff incorporates herein the previous allegations set forth in this Complaint Defendant City of Gloucester and Defendant McCarthy and Nicastro, in their official and individual capacities, and under color of law, attempted to interfere with, and did interfere with the Plaintiffs exercise and enjoyment of rights secured by the Constitution and laws of the United States and the Massachusetts Declaration of Rights, including, but not limited to, his right to free speech, right to participate in concerted union activity, right to Procedural and Substantive Due Process, right to continued employment and the right to petition and seek redress from Governmental abuse without retaliation As a consequence of the Defendants actions, the Plaintiff has suffered and continues to suffer economic loss, fear and emotional distress, loss of status in his community, loss of reputation and promotional opportunities Plaintiff seeks compensatory as well as punitive damages against the Defendants for their actions, as well as reasonable attorney s fees and such other relief as the court deems appropriate. COUNT TWO - WHISTLEBLOWER (M.G.L. ch. 149, 185), b (1) and b (3) v. CITY OF GLOUCESTER 106. The Plaintiff incorporates herein the previous allegations set forth in this Complaint Plaintiff, through various means and measures, reported, objected to, refused to participate in, filed written complaints and reports about what he reasonably believed were ongoing violations of law, and/or rules and regulations within the Gloucester Police Department including, but not limited to, violations of the collective bargaining agreement by Defendants, multiple illegal and unethical actions including, but not limited to, the altering of reports and coercion of percipient witnesses The Defendants retaliated against Plaintiff for reporting, disclosing, objecting to and/or refusing to participate in an activity, policy or practice which

15 Plaintiff reasonably believed was in violation of a law and/or a rule or regulation promulgated by law, in violation of the Massachusetts Whistleblower statute, G.L.c , b (1) and b (3) Plaintiff has been retaliated against for reporting and objecting to Defendants actions and as a result of raising these issues was subsequently subjected to disparate treatment, a hostile work environment, threats of discipline, retaliatory acts, and denial of promotion, loss of income and termination from his employment As a consequence of the Defendants actions as stated above, Plaintiff suffered and continues to suffer damages, including, but not limited to: loss of income, loss of employment benefits, other financial losses, loss of professional opportunities, loss of personal and professional reputation, loss of community standing, and emotional and mental distress. WHEREFORE, Plaintiff demand judgment against the Defendants on Count II, plus interest and costs of this action, treble damages and reasonable attorneys fees as provided under G.L.c.149, Section 185. COUNT THREE MASSACHUSETTS CIVIL RIGHTS (M.G.L. ch. 12, 11H, I) v. Defendant McCarthy and Nicastro in their official and individual capacities 111. The Plaintiff incorporates herein the previous allegations set forth in this Complaint Defendants, in their official and individual capacities, attempted to interfere with, and did interfere with Plaintiff s exercise and enjoyment of rights secured by the Constitution and laws of the United States, and the Constitution and laws of the Commonwealth of Massachusetts, by threats, intimidation and coercion, including his right to free speech, protected right to participate in union activity, right of continued employment and Due Process of law Defendants, attempted to and did interfere with the Plaintiff s above stated rights by means of threats of discipline, economic coercion and retaliatory intimidation in an attempt to silence the Plaintiff s rights of free speech, right to participate in union activities, rights of continued employment and Due Process of law. WHEREFORE, Plaintiff demand judgment against the Defendants on Count III, plus interest and costs of this action, and reasonable attorneys fees as provided under M.G.L. c. 12, Section 11I. COUNT FOUR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS v. Defendant McCarthy and Nicastro in their official and individual capacities

16 114. The Plaintiff incorporates herein the previous allegations set forth in this Complaint As stated above, the conduct of the Defendants toward the Plaintiff was extreme in degree and outrageous in character, resulting in the intentional and reckless infliction of emotional distress upon Plaintiff By his actions as stated above, the Defendants intended to inflict, and did inflict emotional distress on Plaintiff or knew or should have known that emotional distress was a likely result of Defendant s conduct Defendant s conduct as alleged above was extreme and outrageous, beyond all possible bounds of decency and was utterly intolerable The outrageous actions of the Defendants were the cause of Plaintiff s distress and the emotional distress sustained by the Plaintiff is of a nature that no reasonable person could be expected to endure As a result of the outrageous actions of the Defendants, Plaintiff was caused to suffer emotional injuries and damages. THE PLAINTIFF HEREBY DEMANDS A TRIAL BY JURY ON ALL COUNTS. Respectfully submitted, For Plaintiff, By his attorney, /s/ Timothy M. Burke Timothy M. Burke, BBO # Gould Street, Suite 100 Needham, MA Dated: August 31, 2018 (781) Certificate of Service I hereby certify that these documents were filed through the ECF system and will therefore be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be mailed via first class mail to those registered as non-participants. Dated: August 31, 2018 /s/ Timothy M. Burke