SCOTT L. HEAGNEY, Plaintiff, Appellee,
LISA A. WONG; CITY OF FITCHBURG, Defendants, Appellants, BADGEQUEST, INC.; STEPHAN UNSWORTH, Defendants.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Timothy S. Hillman, U.S. District Judge]
Leonard H. Kesten, with whom Judy A. Levenson, Deidre Brennan
Regan, and Brody, Hardoon, Perkins & Kesten, LLP were on
brief, for appellants.
Nicholas B. Carter, with whom Joseph M. Cacace and Todd &
Weld LLP were on brief, for appellee.
Torruella, Thompson, and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE.
case concerns a suit that Scott Heagney, a past applicant for
the position of the police chief of Fitchburg, Massachusetts,
brought against the City of Fitchburg ("Fitchburg")
and its mayor after the mayor decided not to nominate him for
the job. The mayor made her decision after she discovered
late in the hiring process that Heagney had not disclosed,
among other things, that he was charged with serious criminal
offenses (of which he was later acquitted at trial) during
the time period in which he was employed at another local
police department. The mayor was quoted thereafter in local
newspapers explaining her decision not to nominate Heagney
for the position.
suit claims that Fitchburg violated his rights under
Massachusetts General Laws Chapter 151B by basing its
decision not to hire him for the position on his failure to
disclose the criminal case against him. Heagney's suit
also claims, under Massachusetts law, that the mayor defamed
him through statements that she made to the local newspapers
explaining the decision.
trial, the jury found for Heagney on both claims. For the
defamation claim, the jury awarded Heagney $750, 000 in
compensatory damages and for the Chapter 151B claim, no
compensatory damages but $750, 000 in punitive damages. The
District Court denied Fitchburg's motions for judgment as
a matter of law and for a new trial or remittitur, and
entered judgment for Heagney. Fitchburg now appeals. We
reverse the judgment on the defamation claim, affirm the
judgment on the Chapter 151B claim, and reverse the award of
punitive damages for the Chapter 151B claim.
first submitted his application for the position of Fitchburg
Police Chief in October 2013. On the résumé
accompanying his application, Heagney listed positions that
he had held at the Police Department of Franklin,
Massachusetts from 1987 to 2001 and at the United States
Bureau of Alcohol Tobacco and Firearms ("ATF"),
where he had been employed since 2001.
did not list on his résumé, however, his prior
employment as an officer in the Police Department of
Falmouth, Massachusetts where, after being fired by the
Franklin Police Department, he had worked from 1990 to 1993.
Instead, on his résumé, Heagney stated that he
had worked as a patrolman at the Franklin Police Department
from 1987 to 1994, without noting the break in his service.
Heagney also did not list his prior employment at the Police
Department of Attleboro, Massachusetts, where he had worked
from 1985 to 1987.
of the application process, Heagney was also asked to fill
out a standard employment application. The application asked
candidates to list their employment for the past fifteen
years. Heagney stated in the application only that he had
worked in the Franklin Police Department from 1987 to 2001
and at the ATF from 2001 to present. He also answered
"no" to two questions: "Have you ever been
disciplined, fired or forced to resign because of misconduct
or unsatisfactory employment?" and "Prior to the
hiring of our next police chief, a thorough and comprehensive
background investigation will be conducted. Are there any
issues that we should be aware of that would arise during
such an investigation?"
the course of several months, Bernard Stephens
--Fitchburg's personnel director -- and the rest of the
selection committee -- whose members had been chosen by Lisa
Wong, the mayor of Fitchburg -- gradually narrowed the pool
of potential candidates with the assistance of an
"assessment center" and through various interviews.
After interviewing the three remaining candidates, Wong chose
Heagney as the finalist for the position of Fitchburg Police
Chief. She sent an email to the city council on March 10,
2014 announcing her decision to nominate him for the
Wong would officially nominate any candidate for Fitchburg
Police Chief to the city council, however, that candidate was
required to pass a background check by BadgeQuest, a
consulting firm that Fitchburg had hired to assist in the
selection process. Thus, BadgeQuest, at Fitchburg's
request, proceeded to complete its background investigation
of Heagney. And, after an initial investigation, Stephan
Unsworth, Fitchburg's primary contact at BadgeQuest,
communicated BadgeQuest's tentative conclusion to
Stephens that "there [we]re no issues
in [Heagney's] background that would have a negative
impact on [his] suitability for the position of Fitchburg
[P]olice [C]hief." Unsworth did indicate, though, that
BadgeQuest was still waiting for Heagney's personnel file
from the ATF.
next significant development occurred on March 17, 2014,
before Heagney's personnel file arrived from the ATF. On
that date, Wong's office received an anonymous letter
that raised concerns about Heagney's pending nomination
for Fitchburg Police Chief. The letter stated that Heagney
had worked and had been involved in various incidents of
misconduct at the Attleboro, Falmouth, and Franklin Police
Departments. The letter also stated that Heagney had been
charged with various criminal offenses related to pistol
whipping an individual (which subsequent investigation
revealed to be his ex-girlfriend) but that the criminal
"case was dismissed[.]"
Wong's request, Stephens immediately asked BadgeQuest to
"check out" the allegations in the letter, which
BadgeQuest began to do. Before BadgeQuest had conclusively
verified any of the letter's allegations, however,
Stephens sent Unsworth an email on the afternoon of March 18,
2014, in which he called off the BadgeQuest investigation
into Heagney. In his email to Unsworth
explaining why, Stephens gave as "[r]easons": (1)
"[y]our question early on to him about any problems in
the past . . . that we should know about. He answered
no"; (2) "[a]pplication was not filled out with all
the police jobs that he had early in his career"; and
(3) "[h]e has lost Mayor Wong's support."
afternoon of March 18, 2014, Wong spoke with Heagney and gave
him an end-of-business-day deadline to withdraw his name as
an applicant for the chief of police position. After that
deadline passed and Heagney still had not withdrawn his name,
Wong sent an email to the city council in which she withdrew
her nomination of Heagney to be the Fitchburg Police Chief.
In the email, Wong stated that "[t]he nomination was
subject to the execution of a contract and a background
check, both of which have been suspended."
newspapers covered Wong's withdrawal of Heagney's
nomination. One of the articles about this news, written by
Paula Owen, appeared in the Worcester Telegram &
Gazette and stated: "Now, Ms. Wong claims the
46-year-old ATF agent, who runs the Rochester, N.Y., office,
was not forthcoming on his résumé about his
work experience or about a court case on alleged assault and
battery and other charges when he was 21."
eventually received Heagney's personnel files from the
ATF and the Falmouth and Attleboro Police Departments. Those
files included the following information related to the
"court case" -- and the underlying allegations of
criminal conduct by Heagney -- referenced in the anonymous
letter. In 1988, Cheryl Collins, Heagney's ex-girlfriend,
filed complaints with the Franklin and Wrentham Police
Departments against Heagney in which she alleged that he had
physically abused and threatened her with a pistol. Following
the allegations, Heagney was placed on temporary leave from
his job at the Franklin Police Department after an internal
investigation. The criminal case against Heagney in Wrentham
District Court for assault and battery of Collins with a
dangerous weapon ended in Heagney's acquittal.
personnel files also revealed other disciplinary actions that
had been taken against Heagney by police departments at which
he had previously worked. Those actions were for various
instances of misconduct, including fabricating a police
report, acting unprofessionally during a suicide watch, and
failing to appear in court for a trial.
2015, Heagney filed suit in state court against Wong,
Fitchburg, BadgeQuest, and Unsworth. The defendants removed
the case to federal court based on diversity jurisdiction.
See 28 U.S.C. § 1332(a). Heagney's
complaint alleged that all defendants except for Fitchburg
had defamed him in violation of Massachusetts law and that
Fitchburg had violated Massachusetts General Laws Chapter
151B by not hiring Heagney due to his failure to inform it of
the criminal case against him. As relevant here, Chapter 151B
provides that it is unlawful for
an employer, himself or through his agent, . . . to exclude,
limit or otherwise discriminate against any person by reason
of his or her failure to furnish such information through a
written application or oral inquiry or otherwise regarding .
. . an arrest, detention, or disposition regarding any
violation of law in which no conviction resulted.
Mass. Gen. Laws ch. 151B, § 4(9).
to trial, Heagney settled with BadgeQuest and Unsworth.
Heagney then proceeded to trial on his claims against Wong
and Fitchburg. At the end of the trial on those claims, the
defendants filed a motion for judgment as a matter of law
under Federal Rule of Civil Procedure 50(a), which the
District Court denied. The case was submitted to the jury.
The jury specifically found that Wong had made the statement
to the Worcester Telegram & Gazette
that Heagney "was not forthcoming . . . about a court
case on alleged assault and battery and other charges when he
was 21" and that this statement was both false and
defamatory. On this defamation claim, the jury awarded
Heagney $125, 000 "for damages to his reputation,
including emotional distress" and $625, 000 "for
economic losses." Separately, the jury found that the
other statements at issue were not false.
jury also found Fitchburg liable, in violation of Chapter
151B, for discriminating against Heagney because of his
failure to disclose the information concerning the criminal
case against him. But, with respect to damages, the jury
found, based on after-acquired evidence of administrative
actions that had been taken against Heagney by other police
departments, that Fitchburg would have refused to hire
Heagney on the basis of that evidence alone and thus
independently of the fact that he had not disclosed the
criminal case. As a result, the jury did not award Heagney
any compensatory damages on the Chapter 151B claim. The jury
did award him, however, $750, 000 in punitive damages on that
defendants renewed their motion for judgment as a matter of
law under Federal Rule of Civil Procedure 50(b) and
alternatively requested a new trial under Federal Rule of
Civil Procedure 59(a) or remittitur under Federal Rule of
Civil Procedure 59(e). The District Court denied all the
motions. Wong and Fitchburg now appeal.
appeal of the denial of both her motion for judgment as a
matter of law and for a new trial on Heagney's defamation
claim focuses on the statement attributed to her that
appeared in the story by Owen that was published in the
Worcester Telegram & Gazette on March 20, 2014.
To repeat, the story stated, in relevant part: "Now, Ms.
Wong claims the 46-year old ATF agent, who runs the
Rochester, N.Y., office, was not forthcoming on his
résumé about his work experience or about a
court case on alleged assault and battery and other charges
when he was 21."
Massachusetts law, to prove defamation against a public
figure (which Heagney concedes that he is), Heagney must show
that: (1) Wong made a statement concerning him to a third
party; (2) the statement could damage Heagney's
reputation in the community; (3) Wong made the statement with
actual malice; and (4) the statement caused economic loss or
is actionable without economic loss. See Ravnikar v.
Bogojavlensky, 782 N.E.2d 508, 510-11 (Mass. 2003).
jury found that Wong made the entire statement attributed to
her in the story by Owen. The jury found that the portion of
the statement in which Wong stated that Heagney "was not
forthcoming on his résumé about his work
experience" was not false. But, the jury found that the
portion of the statement in which Wong stated that Heagney
"was not forthcoming . . . about a court case on alleged
assault and battery and other charges when he was 21"
was both false and defamatory. The jury's finding on that
portion of the statement is the sole basis for the finding of
liability on Heagney's defamation claim.
easily dispose of Wong's threshold contention that the
evidence was too slight to permit a jury to find that she in
fact made the statement at issue to the Worcester
Telegram & Gazette. Owen, the reporter at the
Worcester Telegram & Gazette who wrote the March
20, 2014 article, testified at trial that Wong made the
statement to her during a phone call. The jury reasonably
could have credited Owen's testimony as to that point.
truth is "an absolute defense" to this defamation
claim. Noonan v. Staples, Inc., 556 F.3d
20, 26 (1st Cir. 2009) (citing Mass. Sch. of Law at
Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 42 (1st
Cir. 1998); McAvoy v. Shufrin, 518 N.E.2d 513, 517
(Mass. 1988)); see also Shaari, 691 N.E.2d at 927.
And, under the First Amendment, Heagney bears the burden of
showing that the statement at issue was false. See
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767,
776 (1986). Moreover, the First Amendment compels us to
"afford plenary review" instead of the "usual
deferential Rule 50 standard" to "'mixed
fact/law matters which implicate core First Amendment
concerns,' such as the jury's conclusions regarding
falsity." Sindi v. El-Moslimany, 896 F.3d 1, 14
(1st Cir. 2018) (quoting AIDS Action Comm. of Mass., Inc.
v. MBTA, 42 F.3d 1, 7 (1st Cir. 1994)).
Wong's position is that the record shows that Heagney
was, in fact, "not forthcoming" about the
"court case" involving the criminal charges that
had been lodged against him in the ordinary sense of being
"not forthcoming." After all, she points out,
Heagney at no point actually brought the case to the
attention of Wong or the search committee. Thus, Wong
contends the statement at issue cannot ground a defamation
claim because it was true rather than false. And, we
conclude, applying plenary review, that, under the ordinary
construction of the phrase "not forthcoming," Wong
is right. See Oxford Living Dictionaries: English,
(defining "forthcoming" as "willing to divulge
information"); Merriam-Webster Dictionary (2005)
(defining "forthcoming" as "characterized by
openness, candidness, and forthrightness").
evidence shows that Heagney had been put on notice that
"a thorough and comprehensive background investigation
w[ould] be conducted" as part of the selection process.
Yet, despite multiple opportunities during that process to do
so, Heagney never in fact "alert[ed] the Defendants that
his background investigation would reveal [the assault and
battery] allegations, the resulting internal affairs
investigation, the suspension, and the subsequent criminal
charges." In fact, when asked on the initial application
form whether he had "ever been disciplined, fired, or
forced to resign because of misconduct or ...