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15-P-91                                               Appeals Court

                JUDE CRISTO   vs.   LEWIS EVANGELIDIS.1


                              No. 15-P-91.

        Worcester.       November 2, 2015. - October 28, 2016.

              Present:    Agnes, Sullivan, & Blake, JJ.


Civil Rights, Immunity of public official, Termination of
     employment. Employment, Retaliation, Termination.
     Constitutional Law, Freedom of speech and press, Public
     employment. Public Employment, Termination. Practice,
     Civil, Summary judgment, Civil rights. Sheriff.



     Civil action commenced in the Superior Court Department on
September 6, 2011.

     A motion for summary judgment was heard by David
Ricciardone, J.


    Andrew J. Abdella for the defendant.
    Timothy M. Burke for the plaintiff.


    AGNES, J.    The question before us is whether the defendant,

Lewis Evangelidis, sheriff of Worcester County, was entitled to

judgment as a matter of law on count three of the plaintiff Jude


    1
        Individually and as sheriff of Worcester County.
                                                                   2


Cristo's complaint, charging Evangelidis with a violation of 42

U.S.C. § 1983.2   In particular, Cristo alleges that Evangelidis

retaliated against him by terminating him from employment in the

Worcester County sheriff's office (sheriff's office or

department) on January 7, 2011, for exercising his rights under

the First Amendment to the United States Constitution in early

2010, the year before Evangelidis took office.   For the reasons

that follow, we conclude that Evangelidis's motion for summary

judgment, based on the defense of qualified immunity, should

have been allowed because on the record before us, Cristo's

speech, while related to matters of public concern, was

undertaken in his capacity as an employee of the sheriff's

office, and not as a private citizen.3   See Garcetti v. Ceballos,

547 U.S. 410, 421 (2006).


     2
       Cristo's original complaint consisted of four counts: a
whistleblower claim pursuant to G. L. c. 149, § 185; a
Massachusetts Civil Rights Act (MCRA) claim pursuant to G. L.
c. 12, §§ 11H and 11I; a civil rights claim pursuant to 42
U.S.C. § 1983; and a conspiracy claim arising out of the
elimination of his position at the Worcester County sheriff's
office on January 7, 2011. Cristo's MCRA and conspiracy claims
were dismissed on Evangelidis's motion. Cristo later stipulated
to a dismissal with prejudice of his whistleblower claim. The
remaining count, involving the § 1983 claim in which damages are
sought against Evangelidis in his personal capacity, was ordered
stayed pending appeal by a single justice of this court. See
note 3, infra.
     3
       Ordinarily, there is no right to an appeal from an order
denying a party's motion for summary judgment. However, when
the motion for summary judgment is based on the defense of
qualified immunity, the order denying qualified immunity is
                                                                     3


    Background.     We view the summary judgment record in the

light most favorable to Cristo, the nonmoving party.    Cristo was

hired in June, 1999, as the assistant personnel director of the

sheriff's office.    Cristo was promoted to human resources

director of the sheriff's office in February, 2006, by Guy

Glodis, Evangelidis's predecessor.    Shortly thereafter, Cristo

was also appointed by Glodis to be the payroll director, and

given other human resource duties.   When, during the summer of

2009, Glodis decided not to seek reelection as sheriff, Shawn P.

Jenkins assumed the role of acting sheriff.

    In early 2010, Cristo expressed concerns to Jenkins, and to

deputy superintendent Paul Legendre, that assistant deputy

superintendent Scott Bove, a candidate for the sheriff's

position, was not performing his human resource duties and was

away campaigning as a candidate for sheriff for some portion of

days he marked himself present at the department.    Jenkins and

Legendre informed Cristo that they were aware of the situation.

Cristo also told Jenkins and Legendre that he personally

observed Captain Jason Dickhaut, who had duties relating to the

payroll for line staff at the sheriff's office, helping Bove

with his campaign for sheriff during work hours, and that



treated as a final order and is immediately appealable. See
Mitchell v. Forsyth, 472 U.S. 511, 525-526 (1985); Littles v.
Commissioner of Correction, 444 Mass. 871, 876 (2005); Matthews
v. Rakiey, 38 Mass. App. Ct. 490, 493 (1995).
                                                                    4


Dickhaut had given bumper stickers supporting Bove's candidacy

to Cristo's assistant for payroll and asked her to record

"missed punches" in the department's time clock system for him

and others.    Because Dickhaut's sporadic attendance and failure

to perform his payroll duties were "causing problems with the

department's ability to process the payroll in a timely manner,"

Cristo brought his concerns directly to Jenkins, who supervised

Dickhaut.

    On Friday, February 19, 2010, Dickhaut confronted Cristo

about the complaints made by Cristo about Dickhaut's campaign

activities on department time and Dickhaut's interactions with

human resource and payroll personnel.    Dickhaut was loud and

hostile.    Jenkins, who was in the next office when Dickhaut

confronted Cristo, told Cristo that he had heard the exchange.

When asked what he was going to do about it, Jenkins reportedly

laughed, and told Cristo "that he let it go on" and "to go home

early."    The following weekend, Cristo prepared a five-page

report on Dickhaut's violations of law and the department's own

regulations, but did not submit it to Jenkins.

    Cristo attended a meeting with Jenkins and Legendre on

Monday, June 14, 2010.    Cristo reminded them of the

confrontation Dickhaut had initiated with him, and informed them

about the five-page report he had prepared.   They did not ask

him to submit it.    Cristo also brought up his ongoing concerns
                                                                   5


about Bove's campaign activities and his failure to keep

accurate time records, as well as an issue about missing radios

that were the property of the department.   Jenkins expressed

concerns that by putting things in electronic mail (e-mail)

messages and writings, Cristo was making him (Jenkins) look like

he was not interested in addressing these issues.   Cristo told

them he simply wanted these problems resolved.

    On November 7, 2010, Evangelidis, as sheriff-elect, was

interviewed by the Worcester Telegram and Gazette and reportedly

said that it was not his intention to replace everyone then

employed by the sheriff's office, that he had not yet picked

anyone for the management positions, that he was willing to

interview current employees, and that if they were doing their

jobs well, "they should feel comfortable in the fact that they

can keep the job."

    Cristo attended the inauguration ceremony for the new

sheriff on January 5, 2011.   Cristo approached Evangelidis and

introduced himself.   Evangelidis replied, "Jude Cristo?" and

walked away.   The following day, an article about Evangelidis's

inauguration appeared in the Worcester Telegram and Gazette in

which Evangelidis was quoted as saying that he "is giving

employees at the jail a chance to prove themselves."   The next

day, Cristo was called to a meeting with Jenkins at 3:00 P.M.

Jenkins told Cristo that his position was being abolished, and
                                                                    6


that if he agreed to resign, he could work for two more weeks.

Cristo declined the invitation.    Jenkins then handed Cristo an

envelope which he said contained Cristo's final check and

termination letter.

    On January 13, 2011, Cristo requested, in writing, a full

accounting of what he had been paid and copies of his personnel

file, medical file, and e-mails.    He also inquired whether he

would receive the same $2,000 severance check that other

employees who had been laid off several weeks earlier had

received.   Cristo also sent a letter to Evangelidis appealing

his termination under a department regulation.    On January 14,

2011, Jenkins sent an e-mail to certain sheriff's office

personnel advising them that employee records and personnel

files were not to be destroyed or deleted, and that if any

information was requested by Cristo, the request was to be

forwarded to Jenkins or chief of staff Jason Rives.    Staff were

also verbally informed not to have any contact with Cristo.

    On January 25, 2011, Rives sent a letter to Cristo

explaining that unlike the other former employees, he was not

entitled to severance pay because he was not first placed on

administrative leave, and that the decision to make the payments

was made by the outgoing sheriff.   On February 3, 2011, Jenkins

sent a letter to Cristo dismissing his appeal and informing him
                                                                   7


that he lacked the financial background to perform the duties of

the new "combined position."

    On March 21, 2011, Cristo wrote to the State retirement

board to inform it of a $3,000 pay raise he had received from

Glodis in the summer of 2007, which was not included in the

salary information provided to the retirement board by the

sheriff's office.   On March 29, 2011, the retirement board sent

a letter to the sheriff's office requesting information about

the $3,000.    Jenkins responded in writing to the retirement

board and stated that the $3,000 was not a salary increase, but

a bonus, but did not submit "factual documentation" in support

of his statement.

    On April 4, 2011, Cristo was notified by the retirement

board that his retirement had been approved retroactive to

January 7, 2011, the date of his termination.   That same day,

Cristo sent a letter to Rives requesting that he be paid twenty

percent of his accumulated sick leave days as of the date of his

termination.   On April 12, 2011, the retirement board informed

Cristo that based on the information it had received from the

sheriff's office, it could not add $3,000 to his salary for

purposes of calculating his retirement benefit.    Cristo appealed

this decision.   On May 16, 2011, Rives informed Cristo in

writing that he would not be paid a percentage of his
                                                                     8


accumulated sick leave because Cristo had been "terminated" from

his employment with the sheriff's office.

    In May, 2011, the sheriff's office hired another individual

to fill the newly created position of "Director of

Administration and Finance/CFO," which consolidated the various

positions previously held by Cristo.     Prior to joining the

sheriff's office, the newly hired person had served as the part-

time treasurer of the town of Barre.

    Discussion.     1.   Standard of review.   Summary judgment is

appropriate when "there is no genuine issue as to any material

fact and . . . the moving party is entitled to a judgment as a

matter of law."   Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404

(2002).   A party moving for summary judgment who does not bear

the burden of proof at trial demonstrates the absence of a

triable issue either by submitting affirmative evidence negating

an essential element of the nonmoving party's case or by showing

that the nonmoving party is unlikely to submit proof of that

element at trial.    See Kourouvacilis v. General Motors Corp.,

410 Mass. 706, 716 (1991); Flesner v. Technical Communications

Corp., 410 Mass. 805, 809 (1991).    The nonmoving party cannot

defeat the motion for summary judgment by resting on its

pleadings and mere assertions of disputed facts.      LaLonde v.

Eissner, 405 Mass. 207, 209 (1989).     "If the moving party

establishes the absence of a triable issue, the party opposing
                                                                     9


the motion must respond and allege specific facts which would

establish the existence of a genuine issue of material fact in

order to defeat a motion for summary judgment."    Pederson v.

Time, Inc., 404 Mass. 14, 17 (1989).

    2.   Section 1983 retaliation claim.    In order to prevail on

his First Amendment retaliation claim, Cristo must establish

three things are more likely than not:    (1) that he was speaking

"as a citizen on a matter of public concern"; (2) that his

interests, "as a citizen, in commenting upon matters of public

concern" outweighed his employer's interest "in promoting the

efficiency of the public services it performs through its

employees"; and (3) "that the protected expression was a

substantial or motivating factor in the adverse employment

decision."    Decotiis v. Whittemore, 635 F.3d 22, 29 (1st Cir.

2011), quoting from Curran v. Cousins, 509 F.3d 36, 44–45 (1st

Cir. 2007).

    3.   Qualified immunity.    "Even when an official is

personally liable under § 1983, he may be shielded from paying

damages when the doctrine of qualified immunity applies. . . .

[Q]ualified immunity shields government officials performing

discretionary functions from civil liability for money damages

when their conduct does not violate clearly established

statutory authority or constitutional rights of which a

reasonable person would have known.    Qualified immunity is an
                                                                    10


affirmative defense, and thus the burden of proof is on

defendants-appellants."   DiMarco-Zappa v. Cabanillas, 238 F.3d

25, 35 (1st Cir. 2001) (citation and quotation omitted).    See

Baker v. Gray, 57 Mass. App. Ct. 618, 622 (2003); Ahmad v.

Department of Correction, 446 Mass. 479, 484 (2006).

     There is a tripartite test for determining whether a

defendant is entitled to the defense of qualified immunity in a

case such as this:   (1) whether the facts taken in the light

most favorable to the plaintiff demonstrate that there was a

violation of the plaintiff's Federal constitutional or statutory

rights;4 (2) if so, whether at the time of the violation those

rights were clearly established; and (3) whether a reasonable

person in the defendant's position would understand that his

conduct violated those clearly established rights.     See Nelson

v. Salem State College, 446 Mass. 525, 531 (2006).     See also

Saucier v. Katz, 533 U.S. 194, 200-201 (2001); White v. Gurnon,

67 Mass. App. Ct. 622, 627 (2006).   The present case is one in

which there is overlap between the first element of Cristo's

§ 1983 claim and the first question to be addressed in

determining whether Evangelidis is entitled to qualified

immunity, namely, whether Cristo is able to prove that

     4
       "[Section] 1983 protects against the violation of Federal
statutes and constitutional provisions. It does not protect
against the violation of State statutes." Baker v. Gray, 57
Mass. App. Ct. 618, 624 (2003).
                                                                 11


Evangelidis violated his First Amendment rights.   See Clancy v.

McCabe, 441 Mass. 311, 322 (2004), quoting from Camilo-Robles v.

Hoyos, 151 F.3d 1, 7 (1st Cir. 1998) (although inquiry into

whether there is qualified immunity is "separate and distinct"

from assessment of merits of plaintiff's case, they sometimes

"overlap").

     In denying the motion for summary judgment, it appears that

the judge assumed that Cristo was engaged in the exercise of his

First Amendment rights when he complained to Jenkins about the

conduct of Bove and Dickhaut, because his decision turned on the

reason for Cristo's termination.5   On the record before us,

however, such an assumption cannot be squared with the holding

in Garcetti v. Ceballos, 547 U.S. 410.   In Garcetti, the United

States Supreme Court clarified the law regarding qualified

immunity by declaring that when a public employee like Cristo

makes a statement pursuant to his official duties, he is not


     5
       In denying the motion for summary judgment, the judge
concluded that Evangelidis's "alleged motivations" created "the
ultimate questions of material fact," which suggests that the
judge may have denied relief based on the view that Evangelidis
could be liable for damages if he harbored a subjective intent
to retaliate against Cristo. In his order staying the
proceedings pending review by this court (see note 2, supra),
the single justice noted that that approach "contravenes the
Supreme Court's intent to restrict the question of qualified
immunity to 'an objective inquiry into the legal reasonableness
of the official action.'" Clancy v. McCabe, 441 Mass. at 323,
quoting from Anderson v. Creighton, 483 U.S. 635, 645 (1987).
In view of the approach we take, it is unnecessary to explore
this question further.
                                                                   12


speaking as a citizen in the exercise of First Amendment rights.

The Court relied on the First Amendment analysis set forth in

Pickering v. Board of Educ. of Township High Sch. Dist. 205,

Will City, 391 U.S. 563, 568 (1968), and Connick v. Myers, 461

U.S. 138, 142 (1983), and acknowledged that the initial question

in cases such as this is whether the content of the public

employee's speech related to "a matter of public concern."

Garcetti, supra at 418.   Here, this question is easily answered

in the affirmative because Cristo was calling attention to the

fact that other public employees in the sheriff's office were

not performing their assigned duties, conducting the private

business of campaigning for public office while they were

supposed to be working for the sheriff's office, and committing

other acts in violation of law.   However, the Garcetti court

added a further requirement that must be met before it can be

said that a public employee has exercised First Amendment

rights.   "We hold that when public employees make statements

pursuant to their official duties, the employees are not

speaking as citizens for First Amendment purposes, and the

Constitution does not insulate their communications from

employer discipline."   Id. at 421.   The Court reasoned that when

an employee performs tasks that are part of his duties, the

employee's supervisors have a right to review and evaluate his

performance independent of judicial oversight.   Id. at 423.    On
                                                                   13


the other hand, when an employee "speaks as a citizen addressing

matters of public concern, the First Amendment requires a

delicate balancing of the competing interests surrounding the

speech and its consequences."   Ibid.

    The determination of the scope of a public employee's

duties calls for a "practical" rather than a formal inquiry --

one that depends not simply on a job description, but also on

the duties that the employee was expected to perform.   Decotiis

v. Whittemore, 635 F.3d at 31, quoting from Mercado-Berrios v.

Cancel-Alegria, 611 F.3d 18, 26 (1st Cir. 2010).   In the present

case, we have the benefit of a record that contains Cristo's

deposition in which he testified in detail about the workplace

complaints he brought to the attention of Jenkins and others.

    On the record before us, there are no material facts in

dispute with regard to whether Cristo spoke in his capacity as

an employee of the sheriff's office or as a private citizen.

Cristo learned about the matters that he reported to Jenkins in

the course of performing his job duties.   The subjects of his

speech are all matters that are directly related to Cristo's

myriad duties as payroll director, and his other human resource

responsibilities.   Cristo's first complaint to Jenkins was that

Bove was not performing his human resource duties and not

working full days -- matters that relate directly to Cristo's

responsibilities.   Cristo's second complaint to Jenkins was
                                                                   14


about Dickhaut's attendance.   In making this complaint, Cristo

specifically stated that Dickhaut's conduct was interfering with

Cristo's ability to perform his payroll duties.    Cristo's third

complaint to Jenkins concerned missing radios that were the

property of the sheriff's office.     Once again, during his

deposition testimony, Cristo specifically explained that one of

his duties was to ensure that when employees left the sheriff's

office, they filled out a form that itemized the return of any

sheriff's office equipment that was issued to them.     Cristo

aired his complaints while on duty.     Cristo did not share the

contents of his complaints with anyone other than his immediate

supervisor.   Cristo did not make use of a forum outside the

workplace to communicate his complaints.     Contrast Pickering,

391 U.S. at 566 (plaintiff wrote letter to local newspaper);

Decotiis, supra at 28 (plaintiff urged clients to contact

advocacy organizations); Curran, 509 F.3d at 41 (plaintiff made

Internet postings).

    We conclude that Cristo's communications to Jenkins were

"made exclusively to fulfill [his] responsibilities" as the

director of payroll and human resources.     See O'Connell v.

Marrero-Racio, 724 F.3d 117, 123 (1st Cir. 2013) (human resource

director who complained about unethical and illegal activities

in workplace was not speaking as private citizen for First

Amendment purposes).   A defendant is not required to establish
                                                                   15


that the employee had a specific duty to speak or to lodge a

complaint.   Instead, courts should examine the context in which

the public employee's speech occurred.   Decotiis, 635 F.3d at

32.

      Cristo's response that his speech concerned matters of

public concern is beside the point because under the analytical

framework developed in Garcetti, it is not sufficient that an

employee's speech relates to matters of public concern.    Under

governing Federal law,6 "when public employees make statements

pursuant to their official duties, the employees are not

speaking as citizens for First Amendment purposes, and the

Constitution does not insulate their communications from

employer discipline."   Garcetti, 547 U.S. at 421.   See Lane v.

Franks, 134 S. Ct. 2369, 2373 (2014) (If "speech is made

pursuant to the employee's ordinary job duties, then the




      6
       Count three is based exclusively on an alleged violation
of Federal law, namely, the First Amendment. We have no
occasion and decline to express an opinion whether under the
Massachusetts Declaration of Rights a public employee's right to
be protected against discipline by his public employer that is
based on the employee's workplace speech is broader than the
protections recognized by the Supreme Court in Garcetti. See,
e.g., Trusz v. UBS Realty Investors, LLC, 319 Conn. 175, 216
(2015) (adopting view expressed by Justice Souter, in his
dissenting opinion in Garcetti, 547 U.S. at 435, that "comment
on official dishonesty, deliberately unconstitutional action,
other serious wrongdoing, or threats to health and safety can
weigh out in an employee's favor" when the employee's speech
concerns official duties).
                                                                   16


employee is not speaking as a citizen for First Amendment

purposes").7

     Conclusion.   For the above reasons, the order denying

Evangelidis's motion for summary judgment is vacated.   The case

is remanded to the Superior Court for entry of an order allowing

the motion for summary judgment.

                                   So ordered.




     7
       Evangelidis also maintains that the summary judgment
record contains no evidence that would support an inference that
there was a causal relationship between his decision to
terminate Cristo and Cristo's complaints before Evangelidis
became sheriff. See Clancy v. McCabe, 441 Mass. at 321, quoting
from Jones v. Wellham, 104 F.3d 620, 627 (4th Cir. 1997) (more
than "mere cause-in-fact relationship" is required). The
evidence in the summary judgment record that bears directly on
this question is that in his deposition, Evangelidis states he
did not learn of Cristo's complaints until after Cristo filed
this lawsuit. Also, Jenkins states in his affidavit that he did
not inform Evangelidis of Cristo's complaints until after this
lawsuit was filed. Cristo, in turn, relies on an incident at
Evangelidis's inauguration event in which he states that
Evangelidis abruptly walked away from him without speaking after
they were introduced, and the timing of his termination, coming
only days after Evangelidis was sworn in as sheriff. In view of
our decision with respect to qualified immunity, it is
unnecessary for us to address this factual dispute.
