COMMONWEALTH OF MASSACHUSETTS
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`HAMPSHIRE,SS
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`SUPERIOR COURT DEPARTMENT
`C.A. NO: 1780CV00033
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`HAMPSHIRE SUPERIOR COURT
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`APR 11 2022
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`HARRY JEKANOWSKI,JR.
`CLERK/MAGISTRATE
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`J
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`PATRICK BUCHANAN AND
`TODD DODGE,
`Plaintiffs,
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`Vv.
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`TOWN OF GREENFIELD
`and
`ROBERT HAIGH,
`Defendants
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`DEFENDANTS’ MOTION FOR RECONSIDERATION ON DECISION AND ORDER
`ON DEFENDANTS’ MOTION TO PRECLUDE IRRELEVANT TESTIMONY
`CONCERNING NON-COMPARATOR GREENFIELD OFFICERS
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`The Defendants movefor reconsideration of the court’s decision to allow the Plaintiff to
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`introduce highly prejudicial and inflammatory evidence regarding a 2015 controversy relating to
`a Confederate flag hanging ontheinterior of a free-standing garage ownedbythenplaintiff's co-
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`worker sergeant Daniel McCarthy. The sole issues for the jury to decidein this trial are twofold:
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`whether Greenfield Police Chief Robert Haigh was motivated by racial animus when he:
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`a.
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`imposed discipline as a result of a 2015 JA investigation against the Plaintiff after
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`the Plaintiff admitted he ordered a minor to buyagift for his mother and send him
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`"the receipts or else he wouldfind him andissue himacitation, and for not disclosing
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`or returning a $10 gratuity that the minor sent him; and
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`b.
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`Chief Haigh allegedly interfering with the Plaintiff's promotion in 2020.
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`Permitting the Plaintiff to introduce evidence regarding an entirely unrelated issue
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`involving a co-worker’s display of the Confederate flag in his private home will unequivocally
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`prejudice the jury and deprive Chief Haighofa fair trial, The central issue in this caseis the state
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`of mind of the Defendant Haigh when he made certain decisions (separated by five years)
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`regarding the Plaintiff's employment. Sgt. McCarthy is, at best, a peripheral participant in the
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`earlier events in this case. In fact, there is no evidence whatsoever to suggest that McCarthy had
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`any influence in the adverse employment actions that will be presented to the jury. Further, the
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`court’s present ruling leavesit to the jury to decide whetherdisciplining Sergeant McCarthy for
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`having displayed a Confederate flag inside of his private garage would violate his First
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`Amendmentrights. The Defendants suggest that permitting the jury to decide what constitutes
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`protected speech under the First Amendmentis wholly inappropriate. Indeed,it is wellsettled that
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`this question is a matter of law, not fact. Discovery in this case is closed. This is quite simply a
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`determination that must be made by the Court beforetrial.
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`It undisputed that the Confederate Battle flag is currently considered by many! to represent
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`a symbol of hate and racism,as this court recognized in its Order, [Document #73]. Conversely,
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`in 2015, at the time that the display at issue was first brought to the attention of the City of
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`Greenfield and its Police Department, more than half of the country considered it a symbol of
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`pride. See Note 1,supra. This court knowsas well as the parties that this is an unresolved subject
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`ofhotly contested debate throughoutthe country, andit is unequivocally clear that our Constitution
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`protects speech that some ofus abhor: “[t]he hallmark ofthe protection offree speech is to allow
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`“free trade in ideas’-—even ideas that the overwhelming majority of people might find distasteful
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`or discomforting. Virginia v. Black, 538 U.S. 343, 358 (2003), quoting Abrams v. United States,
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`250 U.S. 616, 630,(1919) (Holmes, J., dissenting); see also Texas v. Johnson, 491 U.S. 397, 414
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`(1989) (“Ifthere is a bedrockprinciple underlying the First Amendment,it is that the government
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`1 It appears that this is the view held by many, but certainly not a clear majority of Americans. According to a
`Gallup poll from 2015, 57% of those surveyed see the flag as a symbol of southern pride. Jennifer Agiesta, Poll:
`Majority sees Confederateflag as Southern Pride Symbol, not Racist, CNN (July 2, 20 15), available at
`http:/Avww.cnn.com/201 5/07/02/politics/confedcrate-flag-poll-racism-southern-pride/.
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`maynot prohibit the expression of an idea simply because society finds the idea itself offensive or
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`disagreeable”).?
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`The Court held in its decision (Court Order, Document # 73) that the Plaintiff will be
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`allowed to present evidence at
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`trial
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`that a co-worker, Sergeant McCarthy, maintained a
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`Confederate flag in the garage that he co-owned and that Chief Haigh did not discipline McCarthy
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`for having such a display. The court ruled that this is probative as follows:
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`I, “to bolster the claim that McCarthy and others at the Greenfield Police Department
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`harbored racial animus”;
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`“to impeach McCarthy's testimony regarding who hung the Confederate flag”;
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`“as comparator evidence. Plaintiffs expect the evidence to demonstrate the Greenfield
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`Police Department never opened an investigation as to whether McCarthy's actions in
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`displaying a Confederate flag constituted ‘conduct unbecoming a police officer’ [because
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`according to the plaintiffs] Robert Haigh' s written order to McCarthy not to comment on
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`social media sites relative to the Confederate flag undercutsdefendants' argumentthat the
`Greenfield Police Department was without authority to take action against McCarthy.”
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`a
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`“Evidence relating to McCarthy maintaining a Confederate flag is relevant and proper
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`-evidence to be considered by the jury on the issues ofrace discrimination, retaliation and
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`whistleblower activity. See Bulwer v. Mount Auburn Hospital, 473 Mass. 672, 684-88
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`(2016).”
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`The court has erred. This evidence cannot be admitted, and if it is,
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`it will be reversible error.
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`FACTS
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`2 Justice Brandeis putit poetically in Whitney v. California, 274 U.S. 357, 375-76 (1927) (Brandeis,J.
`concurring), overruled in part by Brandenburg v. Ohio, 395 U.S. 444, 89 8. Ct, 1827, 23 L. Ed. 2d 430 (1969).
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`The Plaintiff's relevant facts begin with an internal affairs (“IA”) investigation ofa traffic
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`stop that the Plaintiff conducted in December 2014. The only involvementthat Sgt. McCarthy had
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`with this IA was that on January 15, 2015, he senta letter to Lt. Burge informing his superior of
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`information that he had received abouta traffic stop from a Greenfield police officer. McCarthy
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`indicated that “in of itself, I did not find a problem.” This should preclude any further inquiry.
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`McCarthy indicated to Lt. Burge that he was “not sure if this is an issue.” McCarthy did not
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`advocate for any action to be taken as to Buchanan,he simply relayed information conveyed to
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`him. (See letter to Burge, attached as Exhibit 1).
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`The IA was initiated and was conducted by Lt. Burge. It was Burge, vot McCarthy, who
`found Buchanan guilty on four charges. Burge passed his findings to Chief Haigh who imposed
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`disciplinary action, a three-day suspension, removed Buchanan from his position as provisional
`sergeant, and ordered him to take an ethics course. There is no evidence whatsoever that McCarthy
`had any role in the Chief’s decision. The Union appealedthediscipline, the Mayor upheldit, and
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`the Union demandedarbitration. The arbitrator reduced the three-day suspension to a letter of
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`reprimand but upheld the demotion,stating “...there was ample cause to return Officer Buchanan
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`back to his rank of patrol officer.”
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`On November 28, 2015, residents of a house whose lot adjoined one owned by McCarthy
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`complained that they saw a Confederate flag hanginginside a free-standing garage on McCarthy’s
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`property, which was visible from the street only when the garage door was open. The neighbors,
`"whohad adopted a Black child, indicated that he was very troubled by the flag. When Chief Haigh
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`learned of this controversy, he met with McCarthy and asked him to removethe flag from public
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`view. The two had a discussion during which McCarthyprotested that he had a Constitutional right
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`to hangthe flag inside his garage. The Chief agreed with that proposition but asked McCarthy to
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`remove the flag from view anyway. Thatday, or the next, McCarthy complied and heputthe flag
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`in an upstairs space in the garage where it was not visible to the public. Both the Mayor of
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`Greenfield and the Chief reached out to the neighbors, met with them, and expressed their
`sympathy and support to them andtheir son.
`.
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`Subsequently, a public controversy broke out in Greenfield around the question oftheflag,
`McCarthy's position as the police liaison to the City’s Human Rights Committee, and the
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`constitutional protections of the flag. The Mayor met with the City’s Human Rights Commission
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`arid they agreed that the hangingof the flag was a Constitutionally protected activity and the City
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`could not take action against McCarthy. However, there were many postings on social media
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`regarding this controversy which were affecting the operations of the Police Department.
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`Accordingly, on December 1, 2015, the Chief issued an order to McCarthy that he should not
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`commenton the issue on Social Media and should not respond to any media requests. (See order
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`attached as “Exhibit 2”)
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`The uncontroverted facts are that McCarthy wasnot a decision-maker regarding anyofthe
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`actions that the Plaintiff complained of.
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`I.
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`The Court’s Ruling Erroneously Invites the Jury to Decide as a Question ofLaw as to
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`what is and is not Protected by the First Amendment.
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`In denying a Motion in Liminefiled by the Defendant (Docket No. # 53), the court stated that
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`the Plaintiff can argue to the jury by way of comparator evidence? that the Defendant should have
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`disciplined Sergeant McCarthy for displaying a Confederate flag inside of his private residence.
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`3 It is undisputed that the Plaintiff was disciplined for acts performed within the scope of his employment
`as a police officer. This is unequivocally not a proper comparatoras discussed infra. Moreover, the suggestion that
`the Chiefof Police can be imputed with racist motivations because he did not later discipline an officer for
`displaying a Confederate flag at his private residence constitutes insurmountable legal error and is notlegally sound
`based on well settled law, also discussed injra.
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`(Court Order, Docket No. #73). Notwithstanding multiple reasons why this decision constitutes
`reversible error as otherwise outlined in this Motion for Reconsideration, the court’s conclusion is
`misplaced given prevailing First Amendment jurisprudence. The Defendant urges the court to
`reconsiderits decision in light of both binding and persuasive precedent, including case authority
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`that is squarely on point.
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`-
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`Asa threshold matter, whether the Defendant could have lawfully disciplined McCarthy is
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`a legal determination. It does not belong in front of a jury. Even if the court somehow determines
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`that McCarthy’s speech wasnotprotected by the First Amendment,it is undisputed that the Chief
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`asked him to remove the flag from public view after it was raised as an issue of concern by
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`neighbors, a directive with which he complied. It would have been unconstitutional for the
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`Defendantto retroactively discipline McCarthy for previously displaying a Confederate flag at his
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`private residence when there had been no legitimate disruption to the operations ofthe police
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`departmentresulting from McCarthy’s private, protected speech. On this basis, exclusion ofthis
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`evidence is mandated by law. Thelegal framework ofthe requisite analysis is as follows below:
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`Westart with the basic tenet that government employees,including law enforcement
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`officers, do not relinquish their First Amendmentrights to freedom of speech and expression as a
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`condition of employment. Pickering v. Bd. ofEdue., 391 U.S. 563, 568 (1968); Connick v. Myers,
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`461 U.S. 138, 140 (1983). The Supreme Court has also held that the Constitution prohibits
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`retaliation based on exercising freedom of speech. Rumsfeld v. F. for Acad. & Institutional Rts.,
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`Inc., 547 U.S. 47, 59, (2006) quoting United States v. American Library Assn., Inc., 539 U.S. 194,
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`210, (2003) (quoting Board of Conm’'rs, Wabaunsee Cty. v. Umbehr, 518 U.S. 668, 674, (1996)
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`(some internal quotation marks omitted)) ( “ ‘the government may not deny a benefit to a person
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`on a basis that infringes his constitutionally protected ... freedom of speech even if he has no
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`entitlement to that benefit (emphasis added).’”); See, e.g., Adams v. Trs. of the Univ. of N.C-
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`Wilmington, 640 F.3d 550, 560 (4th Cir. 2011) (stating that the “First Amendmentprotects not
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`only the affirmative right to speak, butalso the ‘right to be free from retaliation by a public official
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`for the exercise ofthat right”)).
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`In Connick, the United States Supreme Court established a two-step inquiry in determining
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`whether a public employee’s speech is protected. First, the employee’s conduct must be “fairly
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`characterized as constituting speech on a matter of public concern.” Connick, 461 U.S. at 146.
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`Second, the employee’s right to commenton a matter of public concern must be balanced with the
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`relevant interests ofthe public employer.Jd. Asthe United States Supreme Court has recognized,
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`this two-part inquiry is @ question of law for courts to properly decide. Jd. at 148 n.7, 150 n.10.
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`Sparr v. Ward, 306 F.3d 589, 594 (8th Cir. 2002) (holding that “[bJoth parts of the Connick-
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`Pickering inquiry are questionsof law for the court to decide”); Cook v. Gwinnett Cty. Sch. Dist.,
`414 F.3d 1313 (11th Cir. 2005), In sum, the court mustfirst consider whether McCarthy’s speech
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`can be “fairly characterized as constituting speech on a matter of public concern,” Connick, 461
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`U.S. at 146. Second, the court must balance the interests of the government in prohibiting that
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`speech. Id.
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`With this preliminary framework in mind, we move to prong one.Aspart ofthis inquiry,
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`the court must decide (a) if McCarthy spokeas a citizen and (b) whether the speech was a matter
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`of public concern. Boyce v. Andrew, 510 F.3d 1333, 1342 (11th Cir. 2007), citing Connick and
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`Pickering, supra. “The controlling factor is whether the expressions are made as an employee
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`fulfilling his responsibility to his employer” rather than as a citizen. Springer v. City ofAtlanta,
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`2006 WL 2246188, at *3 (N.D. Ga. Aug. 4, 2006), citing Garcetti v. Ceballos, 547 U.S. 410, 421
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`(2006). It is undisputed that the speech at issue is McCarthy’s display of the Confederate flag
`inside of his private residence and it was in no wayrelated to his employment. As a matteroflaw,
`this constitutes protected speech. See, ¢.g., Greer v. City of Warren, No. 1:10-CV-01065, 2012
`WL 1014658, 2012 U.S. Dist. LEXIS 39735 (W.D. Ark. Mar. 23, 2012); Dixon v. Coburg Dairy,
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`Inc., 330 F.3d 250 (4th Cir.2003), vacated on other grounds by Dixon v. Coburg Dairy, Inc., 369
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`F.3d 811 (4th Cir.2005) (en banc).
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`In Dixon, the Fourth Circuit held that “[t]he act of displaying a Confederate flag is plainly
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`within the purview of the First Amendment.” Jd. at 262, The Fourth Circuit went on to say that a
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`person had“a constitutionally protected right to fly the Confederate battle flag from his home,car,
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`or truck.” Jd. The holding in Dixonis consistent with decisions from the Supreme Court addressing
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`flags as protected speech. For example, in Texas v. Johnson, the Supreme Court recognized “the
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`communicative nature of conduct relating to flags.” 491 U.S. 397, 406 (1989) (holding that
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`displaying flags and other symbols are entitled to First Amendmentprotection as variants of
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`speech). In instances of displays of Confederate flags by public officials on private property, the
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`case jurisprudence appears to hinge on whether there is entanglement with the officer’s
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`employment, i.e., speech as a citizen versus that as a public official. Here, there are no facts
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`whatsoever to suggest that this was employment-related speech. Thereare also nofacts to support
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`that the Chief of Police had reason to believe otherwise. There are multiple decisions on similar
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`facts that stand for the proposition that the display ofa Confederate flag by a government employee
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`on private property constitutes protected speech. We survey a few such decisions for purposes of
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`illustration.
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`In Greer, supra, retaliatory action was taken against a police officer who privately
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`displayed a Confederate flag inside of his home and on his “MySpace”(social media) account.
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`Acknowledging the consistency among cases across the country, the Greer court agreed that the
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`“display clearly touches on a matter of public concern such that it is protected speech under the
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`First Amendment.” Jd, at *7.
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`In Erickson v. City ofTopeka, 209 F. Supp. 2d 1131 (D. Kan. 2002), a similar result was
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`reached by anotherdistrict court in analyzing whether a city employee’s license plate, containing
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`a Confederate flag and the words “heritage not hate,” constituted protected speech. The Erikson
`court held that the plaintiffwas not required to show that the flag wasthe “subject ofraging debate
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`in this locale before his speech may be found to be of public.concern...” Jd. at 1140. Plainly, the
`court held that evenifplaintiffs flag tag were nothing other than a symbolofthe Confederate flag,
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`it would be entitled to protection. Jd. at 1138. The court emphasized that “[i]n deciding whether a
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`particular statement involves a matter of public concern, the fundamental inquiry is whether the
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`plaintiffspeaks as an employeeor as a citizen.” Jd. The court concluded that the plaintiffs display
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`of his flag tag was purely as a citizen and not as an employee, as the placement of the symbolin
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`his private vehicle could not be said to constitute public dialogue and “no more was required to
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`place his speech, primafacie, within the protection of the First Amendment.” Jd. at 1140.
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`In Carpenter v. City ofTampa, No. 8:03-cv-451, 2005 WL 1463206,at *3 (M.D.Fla. June
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`21, 2005), the Middle District of Florida held that the display of a Confederate Flag “constituted a
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`matter of public concern and wasclearly protected by the First Amendment.” Jd. In Carpenter,the
`plaintiffofficer displayed a Confederate flag license plate on the front ofhis personal vehicle. The
`truck was never used in any official capacity by the government; however, the plaintiff often
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`parked his truck in a municipal parking lot. Nonetheless, the court concludedthat this constituted
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`protected speech. fd.
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`In Cotriss vs. Roswell, 2019 WL 13021858, No. 1:16-CV-4589-MHC(N.D. Ga. Sept. 26,
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`2017), the plaintiffraised the Confederateflag in plain view onaflagpoleat her personal residence.
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`There was no evidence that she took any other action at her place of employment in conjunction
`with that activity and no indication that she spoke pursuant to her official duties in any manner.
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`On thosefacts, the plaintiff was held to have spoken as a citizen and her speech was protected,*
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`The Cotriss court went a step further in stating that “[rJegardless of whatever private statements
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`Plaintiff might have intended to convey, courts have consistently held that display of the
`| Confederate flag is statement of public concern.” Jd. at *5.
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`In Duke v. Hamil, 997 F. Supp. 2d 1291 (N.D. Ga. 2014), a deputy chief of police was
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`demoted following his posting of an image of the Confederate flag on social media accompanied
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`by the phrase, “It’s time for the second revolution.” Jd. at 1293. The court found that “that
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`Plaintiff's speech can befairly consideredto relate to matters ofpolitical concern to the community
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`because a Confederate flag can communicate an array of messages, among them variouspolitical
`or historical points ofview.” Jd. at 1300.
`Accordingly, based on the wealth of authority on this very question, as a matter of law,
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`McCarthy’s act of displaying the Confederate flag in his own private residence constitutes
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`protected speech. Therefore, the analysis continues to prong 2 as, under Connick, the interests of
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`the government must also be balanced. Connick, 461 U.S. at 159. In performing this balancing
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`4The court found against the plaintiff on prong 2 because she regularly parked her
`marked cruiser next to the flagpole; in other words, there was a nexus between her employment
`and the speech that tipped the balancingtest in favor of her government employer regulating her
`speech.
`:
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`test, the court must consider: (1) whether the speech at issue impeded the government’s ability to
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`perform its duties effectively; (2) the manner, time, and place of the speech; and (3) the context in
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`which the speech was made. Carpenter, supra, at *3. The decision in Greer, supra, decided on
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`similarfacts, is particularly instructive on this issue.
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`In Greer, the government contended that discipline was warranted against an officer for
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`displaying a Confederate flag inside ofhis home becausethe display “was unnecessarily disruptive
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`to the functioning of the police department.” /d.at *7, In support of its claim that the officer’s
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`actions were an impedimentto official operations, the governmentrelied upon testimony that “at
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`least two African American members of the Department were concernedthat Plaintiff might be a
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`racist based onthe flags and expressed that they would prefer not to serve with him.” Jd. The court
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`rejected that government’s argument, holding that “[e]ven assuming two African American
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`members of the City of Warren Police Department expressed concern on this issue, Plaintiff
`displayed the Confederate Flag at his private residence and on a private MySpace account. There
`is no indication Plaintiffdisplayed this Confederate Flag at the workplace where other employees
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`of the police department would be exposed to it while in the workplace. Accordingly, this Court
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`finds the potential disruption to the City of Warren Police Department did not outweigh Plaintiff's
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`protected right to display this Confederate Flag.” Jd.
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`The decision is Carpenteris also persuasive. In Carpenter, the license plate of an officer’s
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`private vehicle contained an imageofthe Confederate flag. The court held that the sheer existence
`of the flag, while offensive to some and publicly viewable, was not a sufficient impedimentto
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`outweighthe officer’s right to free speech. The court reasoned:
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`Until this incident, a complaint was never made aboutthe flag. The display of the
`flag did not impede Carpenter’s own workas hestill received excellent marks on
`his employee evaluation sheet. Further, the time, manner, and place of speech were
`not disruptive to the working environment. Carpenter displayed the flag on his
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`personal vehicle, which remained parked in the city lot for the duration of the
`workday. He did not speak about the flag or what he thoughtit represented inside
`the workplace or during work hours. Finally, the speech was made in the context
`of purely personal expression and was not overtly harmful to the City of Tampa’s
`working environment.
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`Id, at *3.
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`The facts in the present case are more compelling than those in Carpenter and Greer.
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`McCarthy’s flag wasaffixed inside of a private garage and only viewable to anyoneoutside if his
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`garage door was open and they were peering inside. Unlike the flag in Carpenter, it was not
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`attached to a moving vehicle and wasnotever present on public property. There is absolutely no
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`evidence that any members of the police department knew of, much less complained about, the
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`flag before the neighbors made a public comment. More critically, as soon as the neighbor’s
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`complaint wasaired,it is undisputed that the Chief asked McCarthy to removethe flag from public
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`view, which he did. While the outward distaste for the Confederate flag by McCarthy’s neighbors
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`caused a temporary disruption (althoughthis argument wasrejected by the Greer court), the issue
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`was cured and there wassimply nolegalbasisto discipline McCarthy solely for having previously
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`displayed the flag prior to him being asked to removeit or relocate it from view of the public.
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`On these facts, it is not appropriate to suggestthat the ChiefofPolice should have, or could
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`have, disciplined McCarthy. It undoubtedly would have constituted a First Amendmentviolation.
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`The court cites Bulwer v. Mount Auburn Hospital, 473 Mass. 672, 684-88 (2016) in its
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`decision to allow the evidence in controversy to be presented to the jury. Bulwer is wildly
`inapposite, as it involves the posting of offensive material in a commonarea ofthe workplace.
`Applying the holding in Bufwarto the facts ofthis case is not appropriate.
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`For these reasons,
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`the Chief of Police could not have lawfully disciplined McCarthy
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`without violating the First Amendment. Thus, the evidence of the incident involving the private
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`display of the Confederate flag by an equal coworker who is a non-party and non-decision maker
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`must be excluded.
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`The fact that the Chief issued a written order to McCarthy restraining his speech by not
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`commenting on social media does nothingto alter the confederate flag First Amendmentanalysis,
`and is a second, separate, question of law. The court held in its ruling that the written warning
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`“yndercuts[] defendants’ argumentthat the Greenfield Police Department was without authority to
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`take action against McCarthy.” However, the written order is a red herring; whether the written
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`order to Mccarthy waslegal or not does nothing to help or hurt the purely legal analysis ofwhether
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`the Town could have punished McCarthy for engaging in protected speech. Arguably, asking
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`McCarthy to take the flag down, moveit, and not commentonit after there had been public
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`disapproval were borderline violations ofthe First Amendment, and would depend on whetherthe
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`court applied a Pickering test or the more exacting priorrestraint test articulated in United States
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`v. National Treasury Employees Union, 513 U.S. 454, 465, (1995) (“NTEU ”) test. See e.g. See
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`e.g. Brady v. Tamburini, 518 F. Supp. 3d 570, 577-78 (D.R.I. 2021), (department lawfully
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`restricted speech of police detective who spoke with press in violation of departmentpolicy and
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`was subsequently disciplined was violation of First Amendment). In any event, this purely legal
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`analysis regarding the constitutionality ofChiefHaigh’s order to restrain speech has absolutely no
`bearing on the legal determination of whether it would have been constitutional to discipline
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`McCarthy for possession ofthe flag in his home.
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`Il.
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`The Plaintiffcannot rely on the supposedbias ofa non-decision-makerto bolster his claim
`that a decision-maker was biased. Plaintiffhas not asserted a cat's paw theory ofliability
`and because he has not asserted a claim for hostile work environmentthere is no reason
`to allow this evidence.
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`Inits ruling, the Court erred whenit held that the admission of evidence on the Confederate
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`flag is admissible “to bolster their claim that McCarthy and others at the Greenfield Police
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`Department harbored racial animus.” The “and others” suggestion is both unfounded and
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`prejudicial. Nonetheless, the suggestion thatifthe jury finds that McCarthy, a non-decision maker,
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`was somehow biased for having displayed a Confederate flag privately, that bias can also be
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`imputed to “others” in the Police Departmenthas absolutely no support in the law. See Mass. R.
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`Evid. 404(a)(1) (Evidence of a person’s character or a charactertrait is not admissible to prove
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`that on a particular occasion the person acted in accordance with the character ortrait). The
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`extraordinary prejudice that would result from admitting this evidence on sucha basis is reversible
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`error,
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`McCarthy’s alleged bias can also not be imputed to the Chiefbecause the Plaintiffhas not
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`asserted a “Cat’s Paw” theory of liability.> That principle holds that even when the ultimate
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`decision maker is unbiased, he or she maystill be liable if the discriminatory motive of a non-
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`decision makerhassignificant influence on the ultimate decision maker. Staub v. Proctor Hospital,
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`562 U.S. 411 (2011). First, the plaintiff has neverarticulated this theory nor has it been pled. This
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`trial is not, and cannot be, about this question. Further, there are insufficient facts in this case to
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`support such a theory. McCarthy was not Buchanan’s supervisor and there is no evidence that
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`McCarthy ever sought to influence Chief Haigh in any of his actions regarding Buchanan (See
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`Exhibit 2, letter from McCarthy to Chief). Further, this is not a hostile work environmentcase;
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`Buchananis only alleging that he wastreated differently than similarly situated co-workersin his
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`2015 discipline and his failure to be promoted onastraight discrimination theory. Admitting
`
`
`
`5 “The term ‘cat's paw’ derives from a fable conceived by Aesop, put into verse by La Fontaine in 1679, and injected
`into United States employment discrimination law by Judge Posnerin 1990. Staub v, Proctor Hosp., 562 U.S. 411,
`416 (2011) (citations omitted). “In the fable, a monkey inducesa cat by flattery to extract roasting chestnuts from
`the fire. After the cat has done so, burningits pawsin the process, the monkey makes off with the chestnuts and
`leaves the cat with nothing.” /d.
`
`14
`
`

`

`evidence to show that the Plaintiff experienced a hostile work environment because of a co-
`
`worker’s actions or that the Confederate flag demonstrates that others in Greenfield harbor racial
`
`animusis simply erroneous.
`
`Wl.
`
`The evidence is also impermissible “to impeach McCarthy's testimony regarding who hung
`the Confederate flag”
`
`The court held that this evidence is also admissible for the purposes of “timpeach[ing]
`
`McCarthy’s testimony regarding who hung the Confederate flag.” This is an impermissible basis
`
`to impeach McCarthy. Mass. Guide to Evid. 608(b). (“In general, specific instances of misconduct
`
`showingthe witnessto be untruthful are not admissible for the purpose ofattacking or supporting
`
`the witness’s credibility.”); Mass. Guide to Evid. 613(a)(4) Collateral Matter (“Extrinsic evidence
`
`to impeach a witness on a collateral matter is not admissible as of right, but only in the exercise of
`
`sound discretion by the trial judge”). The Defendants suggest there could be nothing more
`
`collateral than who hung the Confederate flag in McCarthy’s garage for all the reasons explained
`
`supra, but also becauseit is undisputed McCarthy maintained the flag in his free-standing garage
`
`and admits to that fact. Cross-examination on this issue is so prejudicial
`
`it would deny the
`
`Defendantsthe right toafair trial.
`
`CONCLUSION
`
`For these reasons, the Defendant requests reconsideration or the opportunity to appealto
`
`Single Justice.
`
`Respectfully submitted,
`
`45
`
`

`

`The Defendants,
`Town of Greenfield and Robert Haigh,
`By their attorneys,
`
`/s/ Leonard H. Kesten
`Leonard H. Kesten, BBO No. 542042
`Erica Brody, BBO No.681572
`Brody, Hardoon, Perkins & Kesten, LLP
`699 Boylston Street, 12th Floor
`Boston, MA 02116
`617- 880-7100
`Ikesten@bhpklaw.com
`ebrody@bhpklaw.com
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that the foregoing document was served this day via email to the Clerk of
`
`Courts, Harry Jekanowski, Jr., [harryjekanowski@jud.state.ma.us] and to counsel of record
`
`Timothy J. Ryan [t#r@efclaw.com] and Michael G. McDonough [mgm@efclaw.com]. The
`
`original of which will be hand delivered to the Court for docketing and filing on Monday,
`
`April 11, 2022,
`
`Dated: April 10, 2022
`
`/s/ Leonard H. Kesten
`Leonard HH. Kesten, BBO No. 542042
`
`16
`
`

`

`EXHIBIT 1
`
`

`

`
`
`Cily kaawnas the Town af
`GREENFIELD, MASSACHUSETTS
`
`GREENFIELD POLICE DEPARTMENT
`Robert H. Gaigh Jr.
`
`tbe IeAdeets Chief of Police
`
`321 Ligh Street
`© Girecnficl, MA 0130]
`WilliamF - Martin
`MavOr
`Phome 113-778-541 1 ext (ROde Paw 413-774-6969
`haighréapreenfieldpd.org
`
`
`
`Lt. Joe Burge
`Sgt. Dan McCarthy
`Information about actions of Ofc, Pat Buchanan
`
`To:
`From:
`Subject:
`
`Lt.
`
`On January 15", 2015 I was advised by an officer that in speaking with a person
`in the lobby (Brenda Patullo) this person explainedto this officer that she wanted to share a
`positive experience that she had pertaining to Ofc. Buchanan. She stated back in Dec. Ofc.
`Buchanan stopped her son for a motor vehicle infraction and Ofc. Buchanan explainedto her son
`that he needed to go and spend $50 in Christmas presents for his mother and within five days
`drop off the receipts to him (Ofc. Buchanan)as proofthat he did this andif he did not do this he
`(Ofc. Buchanan) knows where he lives. In ofitself, I did not find a problem,until this officer
`also said that this is the fourth orfifth time that he has heard that Ofc. Buchanan has made these
`types of stipulations.
`I am notsure if this is an issue, but wanted to atleast make you awareofthis, in case it
`becomes a problem.
`
`Ms
`Respectfully Submitted,
`
`ss. |MN v
`Set. Dan
`McCarthy #
`
`ra
`
`,
`
` 08
`
`
`
`The Town ofGreenfield is an Agtrinalive Action/Equal Opportunity Employer,
`a designated Grecn Community and a recipient ofthe "Leading byExanple™ -ward
`
`

`

`EXHIBIT 2
`
`

`

`, City known as the Town of