902 F. Supp. 2d 135
D. Mass.2012Background
- Zavatsky, a Massachusetts Probation Department officer since 1985, claimed promotions were biased toward politically connected candidates; the 2005 and 2007 promotion rounds were allegedly rigged, leading to Tubbs’ hire over Zavatsky; the Policies Manual required merit-based appointments and CJAM certification but did not define protected merits; a second interview committee was formed after pressure, excluding Zavatsky; the Ware Report (2010) revealed Tubbs’ political connections and officials’ testimony alleged influence; Zavatsky pursued federal and state claims, seeking damages, fees, and a grievance remedy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Zavatsky has a cognizable property interest in a merit-based promotion process | Zavatsky alleges a protected process right under the Policies Manual | There is no rights-based entitlement to the promotion process itself | No cognizable property interest; claims dismissed |
| Whether Zavatsky's non-affiliation claim states a First Amendment violation | Non-affiliation affects First Amendment rights through political discrimination | Allegations show personal, not political, affiliation; insufficient causal link | Non-affiliation claims dismissed against Mulligan and Lucci; amendments allowed for O’Brien and Tavares |
| Whether the Massachusetts Civil Rights Act claims survive | Threats, intimidation or coercion violated MCRA | Actions were not threats/those coercive enough to meet MCRA | Counts III and VI as to Mulligan and Lucci dismissed; Counts II and V allowed to amend against O’Brien and Tavares |
| Whether amendment to the complaint should be granted | Proposed amendments add specificity and address deficiencies | Amendment would be futile for due process and some MCRA claims | Amendment denied for Counts I and IV; allowed for Counts II and V (O’Brien, Tavares) and for certain MCRA aspects; full amendment subject to court’s discretion |
| Whether the case should be stayed pending criminal proceedings | Discovery delay harms plaintiff; cases are not coextensive | Stays minimize discovery strain and protect ongoing investigations | Discovery stay allowed; full stay denied; intervenors’ stay of discovery granted; case may proceed with amendments |
Key Cases Cited
- Coyne v. City of Somerville, 972 F.2d 440 (1st Cir. 1992) (no property interest in promotion despite merit-based concerns)
- Lavash v. Kountze, 604 F.2d 103 (1st Cir. 1979) (assumed possible interest in being fairly evaluated but not decided)
- Teigen v. Renfrow, 511 F.3d 1072 (10th Cir. 2007) (no property interest in promotion process)
- McMenemy v. City of Rochester, 241 F.3d 279 (2d Cir. 2001) (no entitlement to promotion despite supervisory promises)
- Meuser v. Fed. Express Corp., 564 F.3d 507 (1st Cir. 2009) (measures for coercion under MCRA require concrete pressure)
- Haufler v. Zotos, 446 Mass. 489, 845 N.E.2d 322 (Mass. Sup. Ct.) (MCRA threat/intimidation/coercion definition and standard)