).  A police sergeant brought a negligence and civil rights action against the city and three of his superiors in order to be provided a smoke-free area in which to work.  The city and a named police lieutenant brought motions to dismiss the suit.  The city’s motion was denied by a Superior Court judge (Sullivan, J.); the lieutenant’s motion was allowed as to negligence and handicap discrimination but denied as to allegations of civil rights violations (Ronan, J.).  Then, the city’s motion was reheard and allowed as to negligence and handicap discrimination but denied as to allegations of civil rights violations (Ronan, J.).  The city filed a motion for summary judgment, which was granted on July 31, 1998 (Brady, J.).  The court ruled that Howcroft’s complaints were in the nature of personal grievances, a form of speech based on a matter of private concern, and as such not protected by the First Amendment.  For the same reason, a Massachusetts Civil Rights Act claim for the deprivation of Howcroft’s First Amendment free speech rights by threats, intimidation and coercion failed to survive a motion for summary judgment.  Howcroft  filed an appeal in 1999 (No. 98-P-2151).  Oral arguments before the Massachusetts Appeals Court took place on December 11, 2000.

On May 17, 2001, the Massachusetts Appeals Court, at 747 N.E.2d 729, 51 Mass. App. Ct. 573, 2001 Mass.App. LEXIS 310, 17 BNA IER CAS 1183, 16.2 TPLR 2.44, affirmed the dismissal of the claims against the city and the defendants in their official capacities, but reversed the dismissal of Howcroft’s claims (intentional infliction of emotional distress, civil rights, and intentional interference with advantageous relationships) against the defendants in their individual capacities.

No. 90-543, (Essex County, MA, Superior Court 1990).