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Heagney v. Wong

United States Court of Appeals, First Circuit

February 11, 2019

SCOTT L. HEAGNEY, Plaintiff, Appellee,
v.
LISA A. WONG; CITY OF FITCHBURG, Defendants, Appellants, BADGEQUEST, INC.; STEPHAN UNSWORTH, Defendants.

          APPEAL 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.

          Before Torruella, Thompson, and Barron, Circuit Judges.

          BARRON, CIRCUIT JUDGE.

         This 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.

         Heagney's 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.

         At 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.

         I.

         Heagney 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.

         Heagney 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.

         As part 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?"

         Over 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 position.

         Before 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.

         The 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[.]"

         At 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."

         On the 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."

         Local 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."[1]

         Fitchburg 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.

         The 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.

         In 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).

         Prior 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.

         The 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 claim.

         The 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.

         II.

         Wong's 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."

         Under 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).

         The 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.

         We can 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.

         Nevertheless, truth is "an absolute defense" to this defamation claim.[2] 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)).

         Essentially, 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, https://en.oxforddictionaries.com/definition/forthcoming (defining "forthcoming" as "willing to divulge information"); Merriam-Webster Dictionary (2005) (defining "forthcoming" as "characterized by openness, candidness, and forthrightness").

         The 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 ...


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