Massachusetts Corrections Officer Wins $500,000 In “Code Of Silence” Retaliation Lawsuit

Bruce Baron began working as a corrections officer at the Suffolk County, Massachusetts House of Correction in 1995. On January 27, 1997, while Baron was on duty, he and a supervisor, Sergeant Walsh, observed over a television monitor that another officer, Sergeant William Curtis, was playing cards with inmates in violation of the institution’s policies. Walsh ordered Baron to call a deputy superintendent to the unit and show him the monitor, where Curtis could still be seen playing cards. Baron complied, thereby essentially reporting Curtis’s infraction. Curtis was suspended for three days as a result.

Almost immediately after this incident, Baron’s colleagues began to harass him in retaliation for reporting Curtis’s card-playing in violation of a tacit “code of silence” under which corrections officers refrained from reporting each other for policy violations. Among other things, the corrections officers shunned him at roll call and referred to him as a “rat.” They displayed posters throughout the facility mocking Baron. One poster accused him of being a child molester. During the summer of 1997, Baron also received harassing phone calls at work; once he left work to find that his car had been defaced with feces and his tires had been slashed.

Daniel Hickey, another corrections officer, was the chief instigator of the harassment, repeatedly threatening Baron and calling him a rat in front of inmates and other corrections officers. In one of their more heated encounters in September 1997, Hickey approached Baron in the cafeteria, said “Excuse me, this is for the rat fink,” and threw cheese onto Baron’s plate. He also called Baron a “low down Jewish rat bastard coward.”

Baron verbally complained to his supervisors and to the Sheriff’s Investigative Division about such harassment on more than 30 occasions. A deputy superintendent interviewed Hickey and ordered him to leave Baron alone but did not discipline him. On another occasion, a supervisor responded to Baron’s complaints by telling him to “be a man.” Baron was ultimately transferred to the night shift in October 1997, but the harassment did not abate. Among other things, officers refused to cover his post for bathroom breaks, requiring him to relieve himself in a cup or in a yard adjacent to his post.

As the harassment continued, Baron was charged with several violations of institution policy. In December 1997, a female inmate alleged that Baron had sexually assaulted her. Baron claimed that Hickey encouraged the inmate’s allegations in an effort to discredit him; a jury acquitted him on the assault charge. Baron was also suspended for five days and placed on employee probation for one year for giving food to an inmate in violation of prison policy, and for 20 days for violating policy by directly informing the police of an inmate’s claim that his girlfriend had been sexually assaulted, rather than immediately reporting the claim to the Department. Baron eventually resigned, and brought a whistleblower lawsuit under the free speech guarantees of the First Amendment.

When a jury awarded Baron $500,000 in damages, the County appealed the jury’s verdict to the federal First Circuit Court of Appeals. The Court rejected the appeal.

The County’s primary argument was that Baron’s “speech” – his role in the investigation of the card-playing deputy, and his subsequent complaints of harassment by fellow employees – was not protected by the First Amendment. The County argued that the speech concerned matters of private as opposed to public interest.

The Court rejected the County’s arguments, holding “retaliation against officers who breach a code of silence among their colleagues at a county House of Correction implicates the public interest. The wrongdoing Baron complained of, including officers’ violations of prison policy, retaliation for breaching the code of silence, and prison officials’ failure to investigate or put a stop to that retaliation, affected not only Baron and his co-workers, but also the prison inmates who were under the Department’s control. Accordingly, Baron’s speech involved a legitimate matter of inherent concern to the electorate.”

The County objected to the amount of the verdict, contending that no evidence supported the half-million dollar award. The Court disagreed, finding that “although Baron presented little evidence of economic damages, his testimony demonstrated that the harassment had taken a heavy emotional toll on him. Over the course of many months, Baron was subjected to vicious threats and physical intimidation. He received harassing phone calls that included taunts about his wife, who suffered from multiple sclerosis and was confined to a wheelchair. Posters displayed throughout the House of Correction labeled him a rat and suggested that he was a child molester. His car was smeared with feces and his tires were slashed. Other officers refused to cover his post for restroom breaks, forcing him to relieve himself in a cup. This harassment affected his health, requiring him to be taken to the hospital after collapsing from stress. Ultimately, the harassment took such a serious toll that he was forced to quit his job. In light of these facts, an award of $500,000 does not exceed any rational appraisal or estimate of the damage” in this case.

Baron v. Suffolk County Sheriff’s Department, 2005 WL 708338 (1st Cir. 2005).

This article appears in the May 2005 issue