ANDOVER — The court wants a jury to decide whether Town Manager Andrew Flanagan was justified in firing the town’s former director of youth services following an investigation of his “misconduct.”
Essex Superior Court Judge Elizabeth Dunigan denied Flanagan’s motion for summary judgment on William “Bill” Fahey’s complaint for wrongful termination in a decision filed Friday.
Former Youth Services Director Fahey filed a civil complaint for his firing against Town Manager Andrew Flanagan, named individually and representative of the town, in 2021. Fahey was ousted from his position in May 2021 for “misconduct” after the town hired a third-party investigator to look into allegations of inappropriate behavior by the town employee.
“In the court’s view, considering the entirety of the record, whether the Town had just cause to terminate Fahey is a factual question best left for the jury to decide,” Dunigan said.
Fahey has argued he was unfairly terminated due to a report generated by the third-party investigation. He also claims Flanagan defamed his character and discredited his reputation in the community through emails sent to the Select Board and public.
Fahey has also argued Flanagan and the town acted in bad faith to terminate his employment by relying on a woman’s accusations against him, despite the investigator questioning her credibility.
In 2020, a 26-year-old woman, identified in court documents as “MJ,” accused Fahey of engaging in sexually inappropriate behavior with her beginning at 16 while he supervised the Andover Youth Services program.
At the time, the District Attorney’s office determined Fahey’s alleged conduct was not criminal, even if the accusations were true, according to Dunigan’s order.
The town launched its own investigation into the woman’s accusations and hired Discrimination and Harassment Solutions, LLC. Fahey was placed on administrative leave pending the investigation’s results.
The report found that the woman’s credibility was compromised and identified concerns with her memory issues and inconsistent statements. The investigator also noted how the allegations amounted to, at most, sexual harassment and not sexual assault.
However, the report noted “significant gaps” in Fahey’s credibility, according to court documents. The report concluded there was sufficient evidence Fahey violated the town’s computer use policy regarding pornographic material and his “expressions of affection” violated the town’s sexual harassment policy. It also noted his actions were “inconsistent” with his role as a youth services director and recommended disciplinary action.
The town informed Fahey he was being terminated in April 2021. Fahey opposed it, saying there was not “just cause” to fire him. He argued the town relied on accusations to determine if he engaged in “indiscretions” outside the scope of the investigation. He was ultimately terminated by Flanagan in May 2021.
Fahey served as youth services director from 1994 to 2021.
In 2019, the town and Andover Independent Employees Association entered into an agreement which gave the town manager the authority to remove the youth services director if there was just cause with a written statement for the reason of the firing.
Fahey has made claims against the town for breach of contract and breach of the implied covenant of good faith and fair dealing. The town claims Fahey was terminated after the results of an independent investigator yielded there was just cause to fire him, “and no reasonable fact finder could find otherwise,” according to the court’s decision.
“Fahey argues that the question of just cause is generally an issue of fact. And it is definitely an issue of fact in this case,” in which the judge notes disputes in the findings and conclusions of misconduct from the independent investigation.
“The court is persuaded that Fahey is correct,” the decision reads.
The court determined there are disputed facts, on whether Fahey engaged in misconduct or other conduct which warranted his termination, which can’t be resolved with summary judgment.
The record suggests facts that there was just cause for firing him, including the downloading and showing of a pornographic film depicting the woman who accused Fahey of inappropriate behavior toward her as a minor, Dunigan said in the court order. But other facts lead to the conclusion there was no just cause as Fahey opposes many facts from the investigation, she added.
A final pretrial conference is scheduled for Oct. 7.