GLOUCESTER — What is left of a 2018 lawsuit filed by a former Gloucester Police union president — a claim that the city violated the state's whistleblower protection law — is set to go to trial early next year.

Former Gloucester Police Patrolman's Association president Leon Stuart filed the lawsuit shortly after he was fired in June 2018 by Mayor Sefatia Romeo Theken. 

The firing came after an internal affairs investigation into a December 2017 off-duty encounter with a driver who, Stuart maintained, had run a stop sign and nearly struck a minivan in which Stuart was riding. Stuart and his brother followed the minivan to a gas station, where Stuart confronted the driver. When Stuart did not show a badge the man ignored him, and Stuart eventually put the man into a headlock while waiting for backup to arrive. 

But in Stuart's lawsuit he alleged that the firing was retaliatory, after months of prior complaints regarding a range of actions by his superiors, including an earlier internal affairs investigation, and two arrests where he says he was either ordered to rewrite police reports or saw other officers alter them, in one case to support an arrest for which Stuart didn't believe there was probable cause.  

In a decision issued on Sept. 30, U.S. District Court Judge Allison Burroughs concluded otherwise, finding that the firing, which was later upheld by an arbitrator, was not in response to or retaliation for Stuart's past public comments or complaints about the department. 

Burroughs went on to say, "given the content of the video, it would have been shocking if there had not been an investigation, irrespective of any speech." 

But she did find that a 2017 internal affairs investigation launched by then-Chief John McCarthy, now a Gloucester city councilor, did raise questions of possible retaliation. The judge concluded that the claim of whether that happened can go to a jury. 

Stuart, who had become president of the union in 2016, received a complaint from a member, Detective Thomas Quinn, about comments made by Lt. David Quinn during the services for another officer who had died, in 2017. While discussing the issue with the city's director of human resources, Stuart believed he heard the chirp of a police radio outside the office and went on to accuse Lt. Quinn and another senior officer, Lt. Jeremiah Nicastro, of eavesdropping. 

After sharing those accusations — which were denied by the two lieutenants — with other officers in the union, McCarthy began an internal affairs investigation. As part of that investigation he raised a series of questions that, a Department of Labor Relations investigation later concluded, violated labor laws protecting union officials from questions by an employer about union activities. 

Burroughs, in her decision, concluded that Stuart's actions regarding the matter were related to protected union activity. 

Since the city did not address the episode in its own filings, the judge said she will allow that part of the complaint to stand.

But the judge rejected an argument by Stuart and his lawyers that because other officers engaged in improper behavior that was not disciplined, the fact that he was amounted to retaliation. 

Burroughs said that while both Stuart and a senior officer had been found to have engaged in conduct unbecoming an officer, Stuart's case was different because it involved excessive use of force, exposed the city to potential liability and was all on video. 

A final pretrial conference in the case is scheduled for Jan. 19, with a trial set for Feb. 1. 

Courts reporter Julie Manganis can be reached at 978-338-2521, by email at jmanganis@salemnews.com or on Twitter at @SNJulieManganis

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