George A. O'Toole, Jr., United States District Judge.
The magistrate judge to whom this case was referred issued two reports and recommendations ("the R & Rs") (dkt. nos. 188 & 189) addressing the motions to dismiss filed by the Town of Brookline defendants (dkt. no. 110) and the individual defendants (dkt. no. 112), respectively. The R & Rs recommend that paragraphs of the third amended complaint be stricken as surplusage. They also recommend rejecting the defendants' arguments that certain claims apparently pled by the plaintiff are barred either by the Rooker-Feldman doctrine or by principles of claim preclusion to the extent that they allege facts that pre-date the termination of the plaintiff's prior Norfolk County action. The defendants filed timely objections to the latter of these recommendations.
After reviewing the parties' submissions concerning the objections, I agree that the
Accordingly, I ADOPT the R & Rs (dkt. nos. 188 & 189) insofar as portions of the third amended complaint are stricken, but I SUSTAIN the defendants' objection as stated above with respect to claim preclusion.
It is SO ORDERED.
M. Page Kelley, United States Magistrate Judge.
This is a civil rights action in which a former firefighter for the Town of Brookline (the Town), Gerald Alston, who is Black, alleges that he was racially discriminated against by the Town, certain town officials in their individual and official capacities, and the firefighters' union. This motion to dismiss only concerns Alston's claims against the Town.
Specifically, Alston brought this action against the Town, the Board of Selectmen (the Board), the Town Counsel, and the Human Resources Director (collectively, the Town defendants)
On December 1, 2015, Alston filed a 55-page complaint in which he was the sole plaintiff. (# 1.) Alston alleged that the Town defendants, individual defendants, and the firefighters' union to which Alston had belonged had violated his rights in much the same way he alleges in the present complaint. Id. On January 12, 2016, the Town defendants moved to dismiss the complaint for failure to state a claim (## 10, 11) on essentially the same grounds as they do in the present motion. Compare # 11 at 22 with # 111 at 15-16; # 11 at 18 with # 111 at 21.
On September 2, 2016, this court issued a Report and Recommendation to the District Court, O'Toole, J., recommending that the first amended complaint be dismissed without prejudice for failure to conform to Federal Rules of Civil Procedure
On October 21, 2016, Alston filed a second amended complaint. (# 78.) The Town defendants and individual defendants jointly moved to strike portions of it under Rule 12(f) (# 86) and moved alternatively for a more definite statement under Rule (12)(e) (# 88). This court issued an Order in which ## 86 and 88 were granted in part and denied in part. (# 106.)
Alston then filed the now-operative third amended complaint. (# 108.) The Town defendants have once again moved to dismiss (# 110); Alston responded in opposition (# 133);
In order to determine whether the complained-of material is relevant or should be stricken, the court must first describe both the facts of the case and the particular factual allegations to which defendants object. The court will then discuss the legal framework of Alston's claims. Finally, applying this law to the facts, the court determines that certain allegations should be stricken, while others should remain in the complaint.
The third amended complaint alleges that the Town's policy, practice, and custom of protecting and encouraging acts of racial discrimination and disparate treatment (the custom)
Alston joined the Brookline Fire Department (BFD) in 2002. (# 108 ¶ 2.) On May 30, 2010, Paul Pender, a lieutenant in the BFD, left a voicemail on Alston's phone in which he called Alston a "f***ing n*****" (the voicemail incident). Id. ¶ 19. A week later, Alston reported the voicemail incident to BFD's chief operating officer, but the Town took no action other than to inform Pender of Alston's complaint. Id. ¶ 22. Alston contends that Pender made excuses for the comment, showed no remorse, and told Alston that filing the complaint
On August 17, 2010, the Board held a hearing to address the voicemail incident, but failed to question Pender about his excuses; did not investigate Pender's intimidating and retaliatory conduct; and did not "terminate his employment, demote him, or make him ineligible for promotion." Id. ¶ 26. The Board kept the facts of the incident secret. Id. ¶ 27.
In September 2010, Pender served a "two 24-hour shift suspension." Id. ¶ 29. Then the Town, "[w]ith the tacit approval of [the Board]," promoted Pender to acting captain. Id. On September 22, 2010, the Board arranged for Pender to travel to the White House to receive a medal of valor from the attorney general. Id. ¶ 27. Selectwoman Mermell tweeted out coverage of the medal ceremony. Id. The purpose and effect of Selectwoman Mermell's actions was to "protect Lieutenant Pender from any stigma and to mark him with the selectmen's corporate stamp of approval." Id. ¶ 28.
In May 2012, Alston filed a complaint with the Massachusetts Commission Against Discrimination (the MCAD) "relating to [Pender's] promotion." Id. ¶ 32a. Prior to filing with the MCAD, Alston complained repeatedly to the fire chief and the director of human resources about Pender's promotion. Id. According to Alston, "[t]o take advantage of the 300-day statute of limitations for employment discrimination actions in Massachusetts, [the Town] persuaded Mr. Alston to keep his complaints `in-house' for years by lying to him and cynically taking advantage of his loyalty to the fire department and his desire to be seen as a team player." Id. ¶ 33.
On May 7, 2013, the fire chief reported to the Board that Pender was being "assigned to be the assistant trainer for all firefighters in Brookline." Id. ¶ 30. Despite knowing that Alston had filed a complaint with the MCAD protesting his treatment after he reported the racial slur, the Board voted unanimously to promote Pender permanently to captain. Id. ¶ 31. Alston contends that this action was in contravention to the Board's statement to him that Pender would be ineligible for promotion. Id. ¶ 34. The Board told Alston that Pender "had not really been promoted and that his promotion to Captain was temporary and would be rescinded." Id.
Alston states that the Town "promised to `take care of' the retaliation against [Alston] and prohibited him from obtaining relief from the Town's civil rights commission, the Human Relations Commission." Id. The Town also failed to investigate properly Alston's complaints that he had been "shunned, ostracized, and denied promotions to temporary Lieutenant in April and May of 2013." Id. ¶ 35.
In June of 2013, Alston filed an action in Superior Court of the Commonwealth of Massachusetts, Norfolk County, "complain[ing] about Lieutenant Pender's promotion." Id. ¶ 32a.
In the fall of 2013, the Town "attacked Mr. Alston publicly and behind closed doors; forced him out of the fire department on a pretext; and falsely and maliciously arranged for him to be deemed `unfit for duty' by a biased and incompetent psychiatrist." Id. ¶ 36. On December 19, 2013, the word "Leave" was written on the door underneath Alston's jacket on his assigned seat on the firetruck. Id. ¶ 32e. Alston asserts that the Town and certain individual defendants failed to investigate the incident adequately, id. ¶¶ 161, 174, and that as a result of this failure, other
By early 2014, the Town had placed Alston on unpaid leave "with the intent to terminate his employment." Id. In the summer of the same year, Alston's discrimination lawsuit was dismissed, and he lost his last protection against termination. Id. ¶ 40. Within months of the civil suit's being dismissed, the Town stopped Alston's paycheck, which resulted in his inability to afford basic necessities. Id. ¶ 42. The Town prohibited Alston from working a second job, "on threat of violating Town rules." Id.
Despite Alston's completion of an anger management course and his visits with a psychiatrist, the Town did not contact him regarding his return to the fire department. Id. ¶ 41. "On November 24, 2014, after going months without pay, Alston wrote to Selectman Chairman Kenneth Goldstein outlining the many bad decisions that had been made by the Town's administrative staff and request[ing] to be heard pursuant to the Town's anti-discrimination and retaliation policy." Id. ¶ 43; see also id. ¶ 32a.
On December 2, 2014, after the Board ignored Alston's letter, Alston and several of his supporters appeared before the Board and requested that it "investigate Mr. Alston's case, rectify the racist environment in the fire department, and restore Mr. Alston's job." Id. ¶ 44. The Board did not restore Alston to duty. Id. ¶ 45. Only after a public protest against the Town's treatment of Alston at the January 2015 Dr. Martin Luther King, Jr. celebration was Alston's job temporarily saved. Id.
The Board assigned Town Counsel, who had been involved with the decision to "force Mr. Alston out of the fire department," to oversee a "meaningless and perfunctory third-party `review'" of the Director of Human Resources' reports.
The Town hired Dr. Marilyn Price, a board certified psychiatrist at Massachusetts General Hospital, to evaluate Alston. Id. ¶¶ 49, 50. In a March 2015 report, Dr. Price found that Alston "was
Despite the Town psychiatrist's recommendation that the Town develop a plan
On February 16, 2016, in a meeting closed to the public, the Board, without affording Alston the opportunity to be heard, terminated Alston's paid administrative leave for failure to comply with a return to work plan. Id. ¶ 60. On October 5, 2016, at a public meeting held at Alston's request, the Board, by unanimous vote, formally terminated his position with the BFD. Id. ¶ 61. In so doing, the Board adopted the recommendation of an outside hearing officer paid for and selected by the Town. Id. ¶ 63. The hearing officer "heard no witnesses in support of Mr. Alston's termination and ... simply summarized, often unfairly, Dr. Price's report and certain correspondence from the Town." Id. Alston contends that "Mr. Lampke
While no justification for the decision to terminate Alston was provided at the public meeting, the Board authorized Town Counsel to issue a press release that "falsely implied that the Board had terminated Mr. Alston because of drug use, violence, and a refusal to work with [the Town] to return to duty." Id. ¶ 62. "Although the [Board] knew this innuendo was false, Board members expected and tacitly encouraged their unofficial surrogates, including advisory committee member Fred Levitan, to use it to smear Mr. Alston privately and on social media." Id.
In sum, Alston alleges that he has been persecuted since he reported the voicemail incident in 2010, id. ¶ 32, and that "[b]y failing to properly sanction Lieutenant Pender's conduct and by promoting him in 2010, 2013, and 2016, the [Board] encouraged firefighters to take the position that Mr. Alston's complaint was meritless, personal to Mr. Alston only, and did not relate to a serious violation of the firefighters' code of conduct that affected all firefighters." Id. ¶ 32d. Alston asserts that "[e]ach defendant knows that Lieutenant Pender called Mr. Alston a racial slur, failed to take responsibility for it in subsequent conversations with Mr. Alston, and blamed Mr. Alston for creating a problem by reporting the slur. The defendants have concealed this knowledge from other firefighters in the Brookline fire department." Id. ¶ 32b.
The Town government is headed by the board of selectmen, which is comprised of five elected members, and the town meeting. Id. ¶ 3. The selectmen are the chief elected and executive officers of the Town "with overall responsibility for supervising Town affairs." Id. ¶ 4. The Town operates under a "weak chief" charter, which means that the Board serves as the police and fire commissioner for the Town:
Id.
According to Alston, the Town has been plagued by "a deeply embedded [p]olicy of elevating white people and subordinating Black people" for many years. Id. ¶¶ 64, 67. The custom is enforced by the Board through its agents in the Town administration. Id. ¶ 65.
Alston contends that the custom has affected the racial makeup of the Town's population compared to neighboring Boston.
According to Alston, the custom's effects can be seen in the racial composition of the Town's employees. Many white employees have multi-generational employment legacies and there are "kinship networks" across the municipal workforce. Id. ¶ 70. In the 1970s, federal court orders forced the Town to hire Black police officers and firefighters. Id. ¶ 71. Despite these orders the Board has maintained a virtually all-white command staff in both departments. Id. The only Black lieutenant to serve in the Brookline police department (BPD) was forced to file an action with the MCAD after the Board delayed his promotion, id. ¶ 72; there have only been three Black lieutenants in the history of the BFD and no higher ranking officers. Id. ¶ 73. According to reports commissioned by the Town in 2015 and 2016, Black police officers and firefighters do not feel that their work is valued the same as the work of their white counterparts. Id. ¶ 74.
The third amended complaint asserts that this same disparity can be seen in the Town department-head positions because the Board has reserved these positions for white people.
Alston offers many examples of how the custom has allegedly produced unjust results in employment matters based on the race of Town employees.
In 2005, a white employee in the department of public works (DPW) was convicted of assault with a dangerous weapon and intimidation of a witness, but suffered no adverse employment consequences. Id. ¶ 80. Six years later, the Town promoted this DPW employee. Id. ¶ 81. The DPW employee resigned in 2014 after challenging the Town's failure to promote him a second time. Id. ¶ 82. The Town did not assert the DPW employee's criminal convictions as a basis for denying the promotion. Id.
From 2006 to 2009, a Black employee in the parks department was racially harassed by supervisors and his fellow employees. Id. ¶ 96. The Director of Human Resources conducted a "sham investigation" into the employee's complaint and denied it. Id. ¶ 97. The employee filed a complaint with the MCAD. Id. ¶ 98. In 2009, the MCAD found probable cause "that the Town had fostered a racially hostile environment."
In 2007, the Town promoted a white employee to a senior administrative position over a Black employee with superior qualifications. Id. ¶ 83. A Town Meeting member raised questions to the Board about the hiring decision. Id. ¶ 84. In response to the Town Meeting member's inquiry, an unidentified selectman met privately with the member and disparaged the competency of the Black employee. Id. ¶ 85. In so doing, the selectman referenced negative comments in the Black employee's personnel file, comments of which the employee was not aware because the employee's supervisor had secretly inserted them in the employee's file without him or her
In 2007, BPD brought a criminal assault charge against a Black Town Meeting member, and Town Counsel
In late 2007, in an effort to shield itself from charges of racism after two Black employees filed racial discrimination claims with the MCAD the previous year, the Town hired a Black woman as the director of the Town's early childhood education center, which is run by the recreation department. Id. ¶ 87. Parents and staff did not approve of the new director and requested that the head of the recreation department terminate the director or force her to resign. Id. ¶ 88. "The department head did not support the director, and town counsel began to investigate pretexts on which to fire her." Id. ¶ 89. In early 2008, the head of the recreation department conducted a meeting for parents and staff, the purpose of which was to persuade the director to resign. Id. ¶ 90.
The day after the meeting, an unidentified individual left a bomb threat that contained a racial slur in the director's work mailbox at the center. Id. ¶ 91. In response, Town Counsel coordinated a "sham investigation" with the police that yielded no suspects. Id. ¶ 92. The Town then fired the director for "a pre-textual reason that it had been aware of before the bomb threat." Id. ¶ 93. To avoid potential liability for discrimination, the Town hired another Black woman to head the center. Id. ¶ 94. This individual subsequently left a year later "because of the hostile racial climate at the center." Id. The Town never addressed the racial climate at the center, and despite inquiry from a parent with children at the center regarding the two Black directors' departures, the Board never investigated the issue. Id. ¶¶ 94, 95.
In 2008, the Board appointed a white woman as a BPD officer over a Black woman with a higher score on the civil service exam. Id. ¶ 105. The white applicant was a Brookline High School graduate, a Brookline resident, and the daughter of a BFD firefighter. Id. The Black applicant was also a Brookline High School graduate and a resident of Brookline, but had no relatives employed by the Town. Id. To justify hiring the white applicant with the lower score, "the Town manufactured a pretext." Id. ¶ 106. The Town claimed that the Black applicant was bypassed due to an inconsistent work history and because she stated on her application that she had never used drugs, but admitted in her interview to having smoked marijuana as a teenager. Id. The applicant told the Town and the interviewers that she understood the question on the application to have only pertained to her drug use as an adult. Id. In 2013, the Black applicant made inquiries to the Town regarding her application, to which officials from the Town responded by discouraging her from examining her application by falsely suggesting that it contained damaging information about her. Id. ¶ 107. Town Counsel also falsely claimed that the Black applicant had scored lower on the civil service exam than the white woman who was ultimately hired. Id.
In 2008, a white employee of the DPW, who was hired by the Town in 2003 shortly after having completed a two and one half year sentence in the house of correction, was arrested for possession of heroin. Id. ¶¶ 108, 111. This employee allegedly used
In 2010, a citizen brought a criminal complaint against four white BPD officers for assault and battery with a dangerous weapon. Id. ¶ 113.
On November 4, 2012, BPD Sergeant Robert Murphy, the husband of Town Counsel, released a white man from the BPD station who had been arrested for driving under the influence. Id. ¶ 119. Sergeant Murphy had the white man's car towed back to the station and then allowed the man to drive away. Id. ¶ 120. As part of this same incident, Sergeant Murphy ordered the arresting officer to throw out several containers of alcohol that had been collected at the scene as evidence. Id. ¶ 121. After learning of the incident, the chief of police disciplined Sergeant Murphy with a written reprimand. Id. ¶ 122. The third amended complaint notes that "[s]everal years earlier, Mr. Murphy, while still an officer, received no consequences for not reporting, and concealing with the help of his sister, [who was also a] BPD officer, that his department issued firearm had gone missing. In fact, he was subsequently promoted to Sergeant by the [Board]." Id. ¶ 123.
In 2013, the Town convened a search committee to identify candidates to fill the position of head of the planning department. Id. ¶ 124. According to Alston, the planning department is "responsible for serving [the Town]'s low-income residents by administering [the Town]'s community development block grant funds." Id. The Town selected only white individuals to serve on the six-person search committee "and did not highlight the need for a candidate with expertise in working with and for low income residents." Id. ¶ 125. It is Alston's position that "[t]he most qualified applicant for the department head position was a Black man with a master's degree from Harvard, but the Town did not offer him the job because it had identified a preferable, although less qualified, white woman candidate with connections to the former [T]own administrator." Id. ¶ 126.
On August 26, 2014, a white BFD firefighter was arrested for allegedly driving 114 mph while under the influence of alcohol. Id. ¶ 127. The Town protected the white firefighter by refusing to confirm his employment with BFD to the press. Id. This same firefighter previously had been arrested for assault and battery and for driving under the influence in 2012. Id. ¶ 128. "Despite this pattern of arrests, the white firefighter has been protected by the Town from termination." Id. ¶ 129.
In November 2015, a white employee of the DPW threatened to shoot people in the department. Id. ¶ 130. In response, the Town posted police protection at the department and conducted an investigation.
On December 7, 2015, Sergeant Robert Lawlor, a white BPD officer, "was protected from any substantial disciplinary action after he told Prentice Pilot
In May 2010, just days before the voicemail incident, the Town Meeting passed a resolution calling for the Town to "improve its diversity practices by (1) issuing an annual diversity report, (2) appointing a committee to examine and improve the Town's diversity practices, and (3) holding an annual Dr. Martin Luther King, Jr. celebration." Id. ¶ 131. The Board only supported the third prong of this resolution, and, during discussions of the resolution, Selectwoman Daly "cautioned that the author of the resolution should not expect [the Town] to `look like Boston.'" Id. ¶ 132.
Selectwoman Mermell was assigned by the Board to chair the Dr. Martin Luther King, Jr. celebration committee. Id. ¶ 133. "[Selectwoman] Mermell prevented the committee from examining the Town's diversity practices, and the [Board] instead assigned [the Director of Human Resources] to write non-substantive annual reports regarding the racial composition of the workforce and the town's diversity practices, which did not include any data regarding the Town's handling of racial discrimination complaints." Id. The Board discontinued the annual reports after three years. Id. ¶ 134.
In 2011, concerns raised by Black employees with respect to racially disparate treatment by the Town were brought to the Board's attention. Id. ¶ 135. In response, the chair of the Board, Selectwoman DeWitt, announced at a Board meeting that Selectwoman Mermell was going to chair an ad hoc committee to examine and update the Town's workforce diversity policies. Id. ¶ 135. Neither selectwoman intended to do anything to ameliorate the employees' concerns. Id. Selectwoman Mermell "deliberately did not appoint anyone to the ad-hoc committee and did not convene any meetings[,]" and the Board "took no action to correct the racially disparate treatment that had been repeatedly brought to [its] attention." Id. ¶ 136.
In 2013, the Board blocked the Human Relations Commission from enforcing its mandate by: intentionally depriving the Commission of a quorum "by refusing to appoint two Black men and a Latino man with civil rights experience to seats vacated by resignations;" opposing a resolution in the Town Meeting that requested that the Board lift the moratorium on appointments and appoint the three applicants of color; and by naming Selectwoman Daly to an ad hoc committee on diversity, equal employment opportunities, and affirmative action to develop a warrant article to abolish the Human Rights Commission and eviscerate the Town's anti-discrimination bylaw. Id. ¶ 141; see also id. ¶ 38 (addressing the Board's alleged failure to appoint commissioners).
In the fall of 2013, Alston's case was reported publicly for the first time, and the Board refused to provide to the Human Rights Commission the Town's investigatory reports concerning Alston's case and prohibited the fire chief from meeting with the commission about the racial climate in the fire department. Id. ¶¶ 38, 142. Throughout Alston's interactions with the Town, the Town fought to prevent the Human Relations Commission from fulfilling its charge. Id. ¶¶ 37, 141.
In the spring of 2014, the Board "had [the Town Meeting] abolish the [Human Relations] Commission and replace it with the toothless [Diversity, Inclusion, and Community Relations (DICR)] Commission, which was stripped of any authority to rectify racial discrimination in the [Town] workforce." Id. ¶ 39; see also id. ¶ 143. The DICR Commission was promulgated under Article 3.14 of the Town's bylaws. Id. ¶ 143.
In December 2014, the Board promised to "work with the newly constituted DICR Commission to conduct a Racial Climate Review in the fire department and `seek out and eradicate any discrimination or unfairness that we hear about.'" Id. ¶¶ 48, 144. Alston contends that the Board failed to follow through on its December 2014 promises. Id. ¶¶ 48, 150. The Board repeatedly refused to meet with Alston to discuss the scope of the Racial Climate Review, including meetings requested by others on Alston's behalf. Id. ¶ 55.
Six months after promising to work with the DICR Commission, the Board "stripped the DICR Commission of responsibility for supervising the Racial Climate Review and directed that it not include any meaningful effort to examine, rectify, and improve the racial climate in the fire department." Id. ¶ 56. The final Racial Climate Review report failed to include
At a public meeting of the DICR Commission held on January 16, 2015,
On January 5, 2016, the Board held a meeting to address public complaints about racism in the Town including those made by the two Black BPD officers. Id. ¶ 148. At the meeting, the chair of the DICR Commission read a statement, which had been approved unanimously by the Commission, in which the Commission accused the Board of allowing a culture of racism to permeate the Town's hiring practices and requested that the Board take action to ameliorate this issue. Id. ¶ 149. Alston asserts that the Board has not taken up the DICR Commission's charge. Id. ¶ 150.
A Rule 12(b)(6) motion to dismiss challenges a party's complaint for failing to state a claim. In deciding such a motion, a court must "`accept as true all well-pleaded facts set forth in the complaint and draw all reasonable inferences therefrom in the pleader's favor.'" Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (quoting Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 5 (1st Cir. 2011)). In order to survive a motion to dismiss under Rule 12(b)(6), the plaintiff must provide "enough facts to state a claim to relief that is plausible on its face." See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The "obligation to provide the grounds of [the plaintiff's] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555, 127 S.Ct. 1955 (internal quotation marks and alteration omitted). The "[f]actual allegations must be enough to raise a right to relief above the speculative level," and to cross the "line from conceivable to plausible." Id. at 555, 570, 127 S.Ct. 1955.
In this case, the Town does not ask the court to dismiss any claim of municipal liability asserted in the third amended complaint. The only claim the Town moves to dismiss is the claim that bylaw 3.14 is unconstitutional, and the Rule 12(b)(6) standard will be applied to that claim. For the remaining claims, the Town seeks only to narrow the evidence that Alston may use to establish municipal liability. To the extent the court recommends striking factual allegations, rather than claims, the court does so under Rule 12(f), under which "[t]he court may strike from a pleading ... any redundant, immaterial, impertinent or scandalous matter."
As stated above, the Town defendants do not seek dismissal of claims relating to
Alston's opposition to the Town defendants' pending motion consists of: 1) his Rule 12 procedural bar argument which is without merit, see supra n.7; 2) a two-paragraph defense of his assertion that Article 3.14 of the Town bylaws is unconstitutional; and 3) the contention that because this court and the Town defendants have acknowledged that some of Alston's claims will survive the motion to dismiss, he should therefore be entitled to conduct discovery on all his allegations. See # 133. Alston makes no effort to rebut the Town defendants' argument that many of the examples he sets out to establish the municipal custom are not sufficiently connected to the harm he allegedly suffered, and he fails to address the objections raised by the Town that many of the examples in the third amended complaint assert harms perpetrated by actors over whom the Board has no control.
As described below, the court finds that certain allegations in Alston's third amended complaint are irrelevant to his claims and recommends that they be stricken. Other allegations about which defendants complain are sufficiently related to Alston's claims that they should not be stricken at this juncture. The court finds, further, that the Brookline bylaw complained of is not unconstitutional, and recommends that the corresponding claim be dismissed.
Section 1981 prohibits racially discriminatory impairment of one's right "to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens." Title 42 U.S.C. § 1981(a). The statute defines "make and enforce contracts" as "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." Title 42 U.S.C. § 1981(b). In the First Circuit, "`[t]o state a claim under this statute, a plaintiff must show (1) that he is a member of a racial minority, (2) that the defendant discriminated against him on the basis of his race, and (3) that the discrimination implicated one or more of the activities enumerated in the statute.'" Odunukwe v. Bank of Am., 335 Fed.Appx. 58, 61 (1st Cir. 2009) (quoting Garrett v. Tandy Corp., 295 F.3d 94, 98 (1st Cir. 2002)).
Section 1981 has been interpreted to cover various forms of employment discrimination:
Bhatti v. Trustees of Boston Univ., 659 F.3d 64, 70 (1st Cir. 2011) (internal citation and footnote omitted) (affirming summary judgment in favor of employer).
Under the McDonnell Douglas burden-shifting scheme, "a plaintiff bears the initial burden of proffering evidence sufficient to establish a prima facie case of discrimination." Cherkaoui v. City of Quincy, 877 F.3d 14, 24 (1st Cir. 2017); Conward v. Cambridge Sch. Comm., 171 F.3d 12, 19 (1st Cir. 1999) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). The defendant then has the burden of articulating a legitimate, nondiscriminatory reason for the adverse employment action. Cherkaoui, 877 F.3d at 24 (citations omitted). If defendant accomplishes this task, the plaintiff then has the burden of offering "evidence that [defendant's] explanation is pretextual and that discriminatory animus prompted the adverse action." Id. (quotation marks and citations omitted).
Section 1983 "is a vehicle through which individuals may sue certain persons for depriving them of federally assured rights, such as the First Amendment's right to free speech...." Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir. 2008). A claim under § 1983 has two essential elements: the defendant must have acted under color of state law, and his or her conduct must have deprived the plaintiff of rights secured by the Constitution or by federal law. Id. "The second element requires the plaintiff to show `that the [defendant's] conduct was the cause in fact of the alleged deprivation.'" Id. (quoting Rodriguez-Cirilo v. Garcia, 115 F.3d 50, 52 (1st Cir. 1997)).
The federally protected rights at issue here are (1) Alston's rights under § 1981 to be free from racial discrimination in his employment, outlined above, (2) Alston's First Amendment rights to freedom of speech and to petition the government for redress of grievances, and (3) Alston's Fourteenth Amendment right to equal protection. (See # 108 ¶¶ 1, 193-95.)
"When a government actor retaliates against someone for exercising constitutionally protected First Amendment rights, that individual has a cognizable retaliation claim pursuant to § 1983." Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d 134, 141 (1st Cir. 2016). "The First Amendment protects (among other things) the right to free speech and the right to petition all branches of the government." Id. The elements of a First Amendment free speech retaliation claim in a case involving a government employee are (1) whether the employee spoke as a citizen on a matter of public concern, (2) whether
A claim of retaliation for petitioning the government for redress of grievances can take many forms, see Powell v. Alexander, 391 F.3d 1, 16 (1st Cir. 2004) (citing cases), including termination of an employee. See Fishman v. Clancy, 763 F.2d 485, 486-87 (1st Cir. 1985) (finding attempts to terminate public school teacher for filing grievances and engaging in other First Amendment activities cognizable under § 1983). Such a claim is governed by the two-part burden-shifting analysis established by the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). A plaintiff must first show by a preponderance of the evidence that he "engaged in constitutionally protected conduct, and that the conduct was a substantial or motivating factor for the adverse employment decision." Padilla-Garcia v. Guillermo Rodrigues, 212 F.3d 69, 74 (1st Cir. 2000).
A plaintiff makes out a claim for violation of his Fourteenth Amendment right to equal protection under § 1983 by showing "`that (1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.'" Freeman v. Town of Hudson, 714 F.3d 29, 38 (1st Cir. 2013) (quoting Rubinovitz v. Rogato, 60 F.3d 906, 909-910 (1st Cir. 1995)). A plaintiff in a disparate treatment race discrimination case must show that others similarly situated to him in all relevant respect were treated differently by the employer. Conward v. Cambridge Sch. Comm., 171 F.3d 12, 20 (1st Cir. 1999) ("Reasonableness is the touchstone: while the plaintiff's case and the comparison cases that he advances need not be perfect replicas, they must closely resemble one another in respect to relevant facts and circumstances.").
Municipalities may be sued under § 1983. Monell v. Dept. of Soc. Serv. of City of N.Y., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). It is axiomatic that a municipality cannot be held liable on a theory of respondeat superior just because it employs a tortfeasor. Id. at 691, 98 S.Ct. 2018. To establish municipal liability under § 1983, a plaintiff must not only identify conduct attributable to the municipality, but:
Connick v. Thompson, 563 U.S. 51, 60-61, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) (some alteration in original) (internal citation omitted); see Baron v. Suffolk Cty.
Municipal liability will attach if a violation occurs pursuant to an official policy or a custom. Welch v. Ciampa, 542 F.3d 927, 941 (1st Cir. 2008). When an official policy exists that is unconstitutional on its face, the inquiry is straightforward. See, e.g., Monell, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (finding liability for enforcement of an unconstitutional city policy that required pregnant employees to take unpaid leaves of absence before medically necessary). When a plaintiff points to no specific unconstitutional policy, however, as is the case here, a claim of municipal liability must be grounded in a custom as evidenced by widespread action or inaction by public officials. See McElroy v. City of Lowell, 741 F.Supp.2d 349, 353 (D. Mass. 2010) (citing Fletcher v. Town of Clinton, 196 F.3d 41, 55 (1st Cir. 1999)).
The First Circuit has explained the difference between official policy and unofficial custom: "[u]nlike a `policy,' which comes into existence because of the top-down affirmative decision of a policymaker, a custom develops from the bottom-up." Baron, 402 F.3d at 236 (alteration in original) (internal citation omitted). Such a custom "must be so well settled and widespread that the policymaking officials of the municipality can be said to have either actual or constructive knowledge of it yet did nothing to end the practice." Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir. 1989); Whitfield v. Melendez-Rivera, 431 F.3d 1, 13 (1st Cir. 2005).
The Supreme Court has explained the causation requirement: a plaintiff who brings a § 1983 action against a municipality bears the burden of demonstrating that "through its deliberate conduct, the municipality was the `moving force' behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (emphasis in original) (internal citation omitted); Burrell v. Hampshire Cty., 307 F.3d 1, 10 (1st Cir. 2002); see also Melendez-Rivera, 431 F.3d at 13 (quoting Bordanaro, 871 F.2d at 1156) ("[T]he custom must have been the cause of and `the moving force behind' the constitutional violation.").
There are two theories of municipal liability at issue in this case. One is that because of long-standing and widespread racism in the Town condoned by the Town government, there exists a custom of treating city employees in a racist manner; the Board treated Alston in accordance with this custom; and Alston suffered as a result. (# 108 ¶¶ 1, 193.) A second theory is that acts committed by the members of the Board in their handling of Alston's case, in their role as "policymaking officials" of the Town, constituted a policy for which the Town is liable. Id. at ¶ 196. See Connick, supra, 563 U.S. at 60-61, 131 S.Ct. 1350 ("Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials[....]"); Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) ("[I]t is plain that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances."); Welch, 542 F.3d at 941 ("We are bound by Pembaur and conclude that a single decision by a final policymaker can result in municipal liability."); see also Saunders v. Town of Hull, 874 F.3d 324, 330 (1st Cir. 2017) (finding no Monell liability where there was insufficient evidence that Board of Selectmen ratified official's retaliation against individual).
Alston claims that a superior officer in the BFD called him a racial slur; Alston reported the incident but the Town's response was grossly inadequate; and after reporting the racial slur incident and complaining about the Town's lackluster response, Alston was the victim of the Town's orchestrated effort to silence him, retaliate against him, and ultimately terminate him from the BFD. In short, Alston avers that the Town, primarily through the actions of the Board, retaliated against him for protesting his "unequal and racist treatment." (# 108 ¶¶ 18-64.)
Alleging that the members of the Board are "final decisionmakers," see id. ¶ 4, and that their actions deprived Alston of constitutional rights is an acceptable method of establishing municipal liability under § 1983, and the third amended complaint is not deficient in this regard. Board of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 406, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). As set out above, however, Alston further asserts that he was discriminated against pursuant to a wide-spread custom of racial discrimination in the town. (# 108 ¶¶ 65-130.) Some of the facts he sets out to establish the existence of this alleged custom are problematic.
Courts have required that the evidence used to demonstrate a municipal custom have a close connection to the acts alleged in the case itself. For example, in Connick, in the context of municipal liability for the failure to train employees, plaintiff sought to establish that the prosecutor's office in question had a pattern of perpetrating Brady violations. Connick, 563 U.S. at 62, 131 S.Ct. 1350. Plaintiff proffered that in the ten years preceding his trial, Louisiana courts had overturned four convictions because of Brady violations by prosecutors in the same office. Id. The Supreme Court, however, ruled that the four reversals did not prove a pattern of constitutional violations because they were not sufficiently similar to the Brady violation in that case:
Id. at 62-63.
Conduct was deemed similar enough in Bordanaro, where plaintiffs sought to show that their injuries, suffered after Everett police officers forced open a hotel room door and beat them, were caused by the unconstitutional practice of the Everett
The Third Circuit, in Watson v. Abington Twp., 478 F.3d 144, 157 (3rd Cir. 2007), expounded at length on what evidence might be similar enough to establish a municipal custom. The court there found that the plaintiffs' alleged claim — that the police were raiding establishments associated with Black individuals — was incongruous with the evidence proffered to establish a custom, namely, the use of racial profiling tactics by the police with respect to the issuance of traffic tickets and the use of racial slurs within the department. The Watson court explained that
Watson, 478 F.3d at 157 (emphasis added).
Alston does not cite to any cases, and this court has found none, in which conduct as wide-ranging, disparate, and remote in time as that alleged in the third amended complaint has been found to be relevant in proving a custom to establish municipal liability. There simply is no legal precedent for finding that facts such as racial discrimination in housing, the favorable treatment of a white police officer who lost his firearm, or problems encountered by a Black director of the Town's early childhood education center, to name just a few of the many examples Alston proffers, properly may be offered as evidence of a municipal custom of racism that led to retaliation against a firefighter who complained about being called a racial slur. Surely, racism is a pervasive problem in our society. But not every example of racism in a town, or of favoritism toward white people, can be mustered to establish a municipal custom in a particular civil rights suit. As detailed below, this court therefore finds that many of the allegations pled are irrelevant to establishing the custom and should be stricken from the third amended complaint.
The court does find that some of the allegations challenged by the Town should not be stricken. They may be relevant to Alston's claims for violation of his Fourteenth Amendment right to equal protection under § 1983 by showing that Alston was selectively treated compared with others similarly situated on the basis of his race. See Freeman v. Town of Hudson, 714 F.3d at 38. Certain allegations may
The Town argues that with regard to much of the conduct alleged in the third amended complaint involving individuals other than Alston, it is not clear whether members of the Board were the final policymakers. (# 111 at 13-14, 15.) The court does not have enough information at this time to make findings on this basis. For example, the Town argues that the Board may not be deemed responsible for any conduct alleged to have occurred in the DPW, because "[a]side from DPW Division Heads ..., the DPW Commissioner is otherwise the appointing authority for DPW." (# 111 at 4.) At this point in the case, it is not clear what control the Board has over the DPW Commissioner, or whether in a particular case the Board could be said to have had actual or constructive knowledge of a certain problem. See Silva v. Worden, 130 F.3d 26, 31-32 (1st Cir. 1997) (finding that, to establish custom that has not been formally approved by a decision-maker, final policymakers must have had actual or constructive knowledge of the custom but did nothing to end the practice). At this stage the court will confine its recommendation to whether the asserted conduct appears to be sufficiently related to the harms allegedly suffered by Alston to be relevant to the action.
The third amended complaint's reference to a 2013 study that found that racial discrimination was occurring in the Town's housing and rental markets, (# 108 ¶ 68), and the findings of a 1969 committee that reached a similar conclusion, id. ¶ 69, do not have a sufficient connection to Alston's claims to establish any municipal custom. These allegations should be stricken.
Alston's assertion that the custom is the reason for the racially disparate makeup of the municipal workforce, id. ¶ 67, his allegations with respect to white, multi-generational kinship networks, id. ¶ 70, and his assertion that the Board reserves the Town department head positions for white people, id. ¶¶ 75-77, are not sufficiently linked to the harm Alston suffered. Court orders from the 1970s regarding the employment of Black firefighters and police officers, id. ¶ 71, are too remote in time to be relevant. However, claims concerning Black firefighters' and police officers' not being promoted, id. ¶¶ 72-73, and Black firefighters' and police officers' opinions about how their work is viewed, id. ¶ 74, should not be stricken, as allegations pertaining to racial discrimination in the fire and police departments, and the Board's response to those issues, are relevant to Alton's claims.
Alston's general statements regarding which Town agents "enforce" the
The 2005 incident in which an unidentified white DPW employee was convicted of a crime, yet the Town refused to take any action and subsequently promoted him, id. ¶¶ 80-82, bears too tenuous a connection to Alston. These allegations should be stricken.
The Town's 2007 decision to promote an unidentified white employee to a senior administration position over a Black employee with "superior qualifications," id. ¶¶ 83-86, is not sufficiently related to Alston's claims to be relevant. These allegations should be stricken.
The Town's 2007 decision to hire a Black woman as the director of the Town's early childhood education center and the subsequent problems that unfolded, id. ¶¶ 87-95, are not sufficiently connected to the harm Alston allegedly suffered. These allegations should be stricken.
The 2008 appointment of an unidentified white woman as a BPD officer over an unidentified Black woman with a higher score on the civil service exam for allegedly pretextual reasons, id. ¶¶ 105-107, is not a basis from which one can draw any reasonable inferences relating to the harm alleged against Alston. These allegations should be stricken.
The Town's allegedly insufficient response to a white DPW employee's 2008 arrest for possession of heroin and the subsequent promotion of the employee, id. ¶¶ 108-112, bears no connection to the harm alleged to have been inflicted upon Alston, and therefore fails to support the claims advanced in the third amended complaint. These allegations should be stricken.
Sergeant Robert Murphy's November 4, 2012 decision to release a white individual from BPD custody and the chief of police's resultant decision to discipline Murphy with a written reprimand, id. ¶¶ 119-122, are not connected sufficiently the allegations pertaining to Alston. These allegations should be stricken.
The allegations pertaining to Murphy's not being disciplined for losing and concealing the loss of his department issued firearm, id. ¶ 123, are in no way connected to the conduct concerning Alston. These allegations should be stricken.
The Town's 2013 decision to appoint white members to a committee tasked with finding candidates for the position of head of the planning department and subsequent appointment of a white department head, id. ¶¶ 124-126, do not show any malfeasance on the part of the Town. These allegations should be stricken.
Alston's contention that the Town protected a white firefighter who was arrested for driving 114 mph while under the influence of alcohol and had been previously arrested in 2009 and 2012, id. ¶¶ 127-129, should remain in the case and not be dismissed as it is sufficiently similar to his claims.
The allegations pertaining to a white DPW employee's threatening comments and the Town's reaction, id. ¶ 130, and Alston's contention that "[t]he employee was not subjected to the same procedures as Mr. Alston," id., are relevant to Alston's claims and should not be dismissed.
The allegations pertaining to a Black DPW employee's mistreatment and victimization via racial epithets by supervisors and co-workers, id. ¶¶ 96-98, are analogous to the conduct directed at Alston and should not be stricken.
The 2007 incident where a Black Town Meeting member was criminally charged and banned from Town hall for objecting to a white Town official's rudeness to a senior citizen, id. ¶¶ 99-104, does not support Alston's claims with respect to the harm inflicted on him. Alston does not assert any basis on which the Town's failure to "sanction the police, the [T]own official, or [T]own [C]ounsel for their misconduct," id. ¶ 101, could support a municipal liability claim. Alston's assertion that "[t]he Town's actions defamed the Black [T]own [M]eeting member by creating the innuendo that he had done something criminal, inappropriate, or otherwise out of bounds," id. ¶ 103, is conclusory and need not be credited. These allegations should be stricken.
The 2010 incident involving a citizen's filing of a criminal complaint against four white BPD officers, and the subsequent promotion of one officer despite the existence of an outstanding racial discrimination complaint, id. ¶¶ 113-114, is not sufficiently linked to Alston's claims. These allegations should be stricken.
The portion of the third amended complaint relating to the December 7, 2015 incident where Sergeant Robert Lawlor told an individual to do "n***** jumping jacks" and the Town's efforts to protect Sergeant Lawlor "from any substantial disciplinary action," id. ¶¶ 115-118, is sufficiently similar to the harm allegedly inflicted on Alston and resulting Town response to support Alston's claims and should not be stricken.
Many of Alston's allegations concerning the Human Rights and DICR Commissions are insufficiently connected to the harm allegedly suffered by Alston to support his claims. The general claim that Brookline has "from time to time" established committees "to investigate racial inequality" but "has never given these bodies any power to rectify racial discrimination" is too general and is conclusory, and should be stricken. Id. ¶ 78. The third amended complaint discusses a 2010 resolution passed by the Town Meeting that called for the Town to improve its diversity practices. Id. ¶ 131. Plaintiff asserts that the Board only partially supported this resolution, id. ¶ 132, and that Selectwoman Mermell prevented a committee, which had been formed as a result of the resolution, from examining the Town's diversity practices, id. ¶ 133. Plaintiff does not explain how Selectwoman Mermell inhibited the committee nor does he allege that her actions harmed him. These allegation should be stricken.
Alston also alleges that the Board assigned the Director of Human Resources to "write non-substantive annual reports regarding the racial composition of the workforce and the town's diversity practices, which did not include any data regarding the Town's handling of racial discrimination complaints," id. ¶ 133, and that the reports were discontinued after three years, id. ¶ 134. Alston's cursory claims do not identify how these reports impacted him, or how a failure to include certain data or to complete reports beyond three years reflected a custom of racial discrimination. These allegations should be stricken.
Understanding that the Town defendants are not, at this juncture, moving for dismissal of claims relating to Alston's ultimate termination, that the Board is the
Allegations pertaining to a 2011 incident in which Black employees raised concerns of racially disparate treatment to the Board, who announced an ad hoc committee to examine the Town's "workforce diversity policies" lack detail regarding the Black employees' identities or departments. Nonetheless, the conduct alleged is sufficiently related to Alston's claims and the allegations should stand. See id. ¶¶ 135, 136.
Allegations that the Human Relations Commission, at the end of 2012, began to investigate Alston's case, id. ¶ 137, and that the Board refused to provide the commission with the Town's investigatory reports and prohibited the fire chief from meeting with the commission regarding the racial climate in the fire department, id. ¶ 142, are sufficiently connected to the alleged malfeasance inflicted on Alston to withstand scrutiny at this stage.
The allegations that the Board replaced the Human Relations Commission with a "toothless" DICR commission to avoid taking action against discrimination are sufficiently related to Alston's alleged claim of a custom of racism in employment and should remain. Id. ¶¶ 39, 143-144. The allegations pertaining to the December 16, 2015 DICR Commission meeting at which the Racial Climate Review was to be discussed, and Selectman Greene's refusal to do so because Alston was present, id. ¶¶ 145-146, relate sufficiently to the Board's alleged mistreatment of plaintiff and should stand. The allegations regarding two unidentified Black BPD officers' complaints made at the December 16
Alston's contention that the Board has "failed to take up the DICR Commission's charge," id. ¶ 150, is conclusory and should be stricken.
The third amended complaint's reference to Article 3.14 is cursory:
Id. ¶ 143. Alston notes that under this new bylaw the DICR Commission, unlike its predecessor, lacks jurisdiction over the Town's workforce, id., and, in his "Relief Requested" section, Alston asks the court to strike down the bylaw as unconstitutional, id. at 42. Alston does not explain how the bylaw violates the Constitution in his complaint; one might infer that he is claiming that the bylaw was passed in order to thwart his efforts to have the Town address his complaints about racial discrimination, or that the replacing of one bylaw with another less-stringent one demonstrates the Town's custom of racism.
The Town defendants' arguments regarding Article 3.14 are minimal. In a single paragraph of their Motion, the Town defendants contend that the Article 3.14 is constitutional both on its face and as applied. (# 111 at 14-15.) Although the Town defendants make no argument concerning how the statute is constitutional on its face, it undoubtedly is. See Watchtower Bible and Tract Society of New York, Inc., v. Sagardia De Jesus, 634 F.3d 3, 12 (1st Cir. 2011) ("Such a challenge [that a statute is unconstitutional on its face] ordinarily requires that the statute be invalid in every possible application, or, in some First Amendment contexts, that it be clearly overbroad in some applications that cannot or should not be severed.") (citing Members of the City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)).
The Town defendants argue that Article 3.14 is constitutional as applied because the third amended complaint fails to allege any adverse action against Alston or change in Alston's working conditions as a result of Article 3.14's enactment. (# 111 at 14-15.) The court will construe this as an argument that Alston does not have standing to raise his constitutional claim because he suffered no injury caused by the passage of Article 3.14. The court will consider this argument because standing is jurisdictional. Rumford Pharmacy, Inc. v. City of E. Providence, 970 F.2d 996, 1001 (1st Cir. 1992) ("Since appellant lacked standing to challenge the constitutionality of the Rhode Island statute, the district court was without jurisdiction to address its claim for declaratory or injunctive relief.").
Alston has "Article III standing" to challenge the constitutionality of the bylaw if he can "`allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.'" Id. (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)) (additional citation omitted). In other words, Alston must plead that he was injured by the passage of bylaw 3.14 and that if it is declared unconstitutional, his injury will be cured. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 261, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). He has not done this. While one could infer from the third amended complaint that Alston alleges that the passage of 3.14 was motivated by the Board's wish to squash his complaints, (see # 108 ¶¶ 56, 131-150), the allegations are nebulous and the link is tenuous. Moreover, even if Alston had adequately pled that he was injured by the passage of 3.14, there is no evidence that declaring the bylaw unconstitutional would provide Alston with a remedy. See Rumford Pharmacy, 970 F.2d at 1001 ("As it has not been alleged, nor does it appear, that equitable relief could restore or protect any right of the appellant... appellant lacks standing to assert its claim for injunctive or declaratory relief.").
For all of the reasons stated, I RECOMMEND that Defendant Town's Partial Motion to Dismiss (# 110) be ALLOWED in part and DENIED in part. Specifically, I RECOMMEND that the allegations in paragraphs 67-71, 75-95, 99-114, 119-126, 131-134, 141, 150 be stricken, and section D of relief requested (asking that Article 3.14 of the Town's bylaws be stricken as unconstitutional) be dismissed from the third amended complaint.
The parties are advised that any party who objects to this Report and Recommendation must file specific written objections with the Clerk of this Court within 14 days of the party's receipt of it. The objections must specifically identify the portion of the Recommendation to which objections are made and state the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b), Fed. R. Civ. P., shall preclude further appellate review. See Keating v. Secretary of Health & Human Servs., 848 F.2d 271 (1st Cir. 1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir. 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980); see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).
This is a civil rights action in which a former firefighter for the Town of Brookline, Gerald Alston, who is Black, alleges that he was racially discriminated against by Brookline, various town officials in their individual and official capacities, and the firefighters' union.
The individual defendants moved to dismiss the third amended complaint (# 112); Alston responded in opposition
The court previously set out the lengthy facts alleged in the case and separately set out the facts alleged to establish the Town's custom of discrimination,
The Town government is headed by the board of selectmen, which is comprised of five elected members, and the town meeting. (# 108 ¶ 3.) The selectmen are the chief elected and executive officers of the Town "with overall responsibility for supervising Town affairs." Id. ¶ 4. The Town operates under a "weak chief" charter, which means that the Board serves as the police and fire commissioner for the Town. Id.
Id.
Alston joined the Brookline Fire Department (BFD) in 2002. Id. ¶ 2. On May 30, 2010, Paul Pender, a lieutenant in the BFD, left a voicemail on Alston's phone in which he called Alston a "f***ing n*****" (the voicemail incident). Id. ¶ 19. A week later, Alston reported the incident to BFD's chief operating officer, but the Town took no action other than to inform Pender of Alston's complaint. Id. ¶ 22. Alston contends that Pender made excuses for the comment, showed no remorse, and told Alston that filing the complaint "was the stupidest thing [Alston] could have ever done." Id. ¶¶ 23-24. Pender behaved this way because he knew that the custom of racial discrimination in the Town would protect him and punish Alston. Id. ¶ 24.
On August 17, 2010, the Board held a hearing to address the voicemail incident, but failed to question Pender about his excuses; did not investigate Pender's intimidating and retaliatory conduct; and did not "terminate his employment, demote him, or make him ineligible for promotion." Id. ¶ 26. The Board kept the facts of the incident secret. Id. ¶ 27.
In September 2010, Pender served a "two 24-hour shift suspension." Id. ¶ 29. Then the Town, "[w]ith the tacit approval of [the Board]," promoted Pender to acting captain. Id. On September 22, 2010, the Board arranged for Pender to travel to the White House to receive a medal of valor from the attorney general. Id. ¶ 27. Selectwoman Mermell tweeted out coverage of the medal ceremony. Id. The purpose and effect of Selectwoman Mermell's actions was to "protect Lieutenant Pender from any stigma and to mark him with the selectmen's corporate stamp of approval." Id. ¶ 28.
In May 2012, Alston filed a complaint with the Massachusetts Commission Against Discrimination (the MCAD) "relating to the promotion." Id. ¶ 32a. Prior to filing with the MCAD, Alston complained repeatedly to the fire chief and the director of human resources about Pender's promotion. Id. According to Alston, "[t]o take advantage of the 300-day statute of limitations for employment discrimination actions in Massachusetts, [the Town] persuaded Mr. Alston to keep his complaints `in-house' for years by lying to him and cynically taking advantage of his loyalty to the fire department and his desire to be seen as a team player." Id. ¶ 33.
On May 7, 2013, the fire chief reported to the Board that Pender was being "assigned to be the assistant trainer for all firefighters in Brookline." Id. ¶ 30. Despite knowing that Alston had filed a complaint with the MCAD protesting his treatment after he reported the voicemail incident, the Board voted unanimously to promote Pender permanently to captain. Id. ¶ 31. Alston contends that this action was in contravention to the Board's statement to
Alston states that the Town "promised to `take care of' the retaliation against [Alston] and prohibited him from obtaining relief from the Town's civil rights commission, the Human Relations Commission." Id. The Town also failed to investigate properly Alston's complaints that he had been "shunned, ostracized, and denied promotions to temporary Lieutenant in April and May of 2013." Id. ¶ 35.
In June of 2013, Alston filed an action in Superior Court of the Commonwealth of Massachusetts, Norfolk County, "complain[ing] about Lieutenant Pender's promotion." Id. ¶ 32a.
In the fall of 2013, the Town "attacked Mr. Alston publicly and behind closed doors; forced him out of the fire department on a pretext; and falsely and maliciously arranged for him to be deemed `unfit for duty' by a biased and incompetent psychiatrist." Id. ¶ 36. On December 19, 2013, the word "Leave" was written on the door underneath Alston's jacket on his assigned seat on the firetruck. Id. ¶ 32e. Alston asserts that the Town and certain individual defendants failed to investigate the incident adequately, id. ¶¶ 161, 174, and that as a result of this failure, other firefighters were encouraged to shun and ostracize him. Id. ¶ 32e.
By early 2014, the Town had placed Alston on unpaid leave "with the intent to terminate his employment." Id. In the summer of the same year, Alston's discrimination lawsuit was dismissed, and he "lost his last protection against termination." Id. ¶ 40. Within months of the civil suit's being dismissed, the Town stopped Alston's paycheck, which resulted in his inability to afford basic necessities. Id. ¶ 42. The Town prohibited Alston from working a second job, "on threat of violating Town rules." Id.
Despite Alston's completion of an anger management course and his visits with a psychiatrist, the Town did not contact him regarding his return to the fire department. Id. ¶ 41. "On November 24, 2014, after going months without pay, Alston wrote to Selectman Chairman Kenneth Goldstein outlining the many bad decisions that had been made by the Town's administrative staff and request[ing] to be heard pursuant to the Town's anti-discrimination and retaliation policy." Id. ¶ 43; see also id. ¶ 32a.
On December 2, 2014, after the Board ignored Alston's letter, Alston and several of his supporters appeared before the Board and requested that it "investigate Mr. Alston's case, rectify the racist environment in the fire department, and restore Mr. Alston's job." Id. ¶ 44. The Board did not restore Alston to duty. Id. ¶ 45. Only after a public protest against the Town's treatment of Alston at the January 2015 Dr. Martin Luther King, Jr. celebration was Alston's job temporarily saved. Id.
The Board assigned Town Counsel, who had been involved with the decision to "force Mr. Alston out of the fire department," to oversee a "meaningless and perfunctory third-party `review'" of the Director of Human Resources' reports.
The Town hired Dr. Marilyn Price, a board certified psychiatrist at Massachusetts General Hospital, to evaluate Alston. Id. ¶¶ 49, 50. In a March 2015 report, Dr. Price found that Alston "was
Despite the Town psychiatrist's recommendation that the Town develop a plan that would allow Alston to return to work, the Board "acted in bad faith, and pursuant to the Policy, by refusing to take any reasonable steps to rectify the hostile work environment in the fire department." Id. ¶¶ 49, 54. According to Alston, the Board never intended to work with him to ensure that he would feel safe returning to work, and instead, intended to drive him out of the fire department and the Town for protesting racial discrimination. Id. ¶¶ 59, 64. It was the Board's goal to maintain "an environment in Brookline in which Black people and their supporters are afraid to speak out about racial discrimination for fear of retaliation." Id. ¶ 59.
On February 16, 2016, in a meeting closed to the public, the Board, without affording Alston the opportunity to be heard, terminated Alston's paid administrative leave for failure to comply with a return to work plan. Id. ¶ 60. On October 5, 2016, at a public meeting held at Alston's request, the Board, by unanimous vote, formally terminated his position with the BFD. Id. ¶ 61. In so doing, the Board adopted the recommendation of an outside hearing officer paid for and selected by the Town. Id. ¶ 63. The hearing officer "heard no witnesses in support of Mr. Alston's termination and ... simply summarized, often unfairly, Dr. Price's report and certain correspondence from the Town." Id. Alston contends that "Mr. Lampke
While no justification for the decision to terminate Alston was provided at the public meeting, the Board authorized Town Counsel to issue a press release that "falsely implied that the Board had terminated Mr. Alston because of drug use, violence, and a refusal to work with [the Town] to return to duty." Id. ¶ 62. "Although the [Board] knew this innuendo was false, Board members expected and tacitly encouraged their unofficial surrogates, including advisory committee member Fred Levitan, to use it to smear Mr. Alston privately and on social media." Id.
A Rule 12(b)(6) motion to dismiss challenges a party's complaint for failing to state a claim. In deciding such a motion, a court must "`accept as true all well-pleaded
In order to survive a motion to dismiss under Rule 12(b)(6), the plaintiff must provide "enough facts to state a claim to relief that is plausible on its face." See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The "obligation to provide the grounds of [the plaintiff's] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555, 127 S.Ct. 1955 (internal quotation marks and alteration omitted). The "[f]actual allegations must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555, 127 S.Ct. 1955. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Simply put, the court should assume that well-pleaded facts are genuine and then determine whether such facts state a plausible claim for relief. Id. at 679, 129 S.Ct. 1937.
The individual defendants (and the Town defendants, with respect to certain issues) seek dismissal of the complaint against them on the grounds that (A) the claims are barred by the Rooker-Feldman doctrine and by the doctrine of claim preclusion; (B) they are barred by the statute of limitations; (C) claims against certain defendants are barred by the doctrine of legislative immunity; (D) the claims should be dismissed for failure to state a claim; (E) the individual defendants are entitled to qualified immunity; (F) the doctrine of constitutional avoidance applies; and (G) claims against Town Counsel should be dismissed for reasons of public policy. (# 122 at 16-17.)
On June 17, 2013, Alston filed a complaint in the Norfolk Superior Court, no. 2013-00898, alleging racial discrimination under Mass. Gen. Laws ch. 151(B), because Lieutenant Pender called him a racial slur, and because he was retaliated against for reporting the incident and complaining about Pender's subsequent promotion. (# 15-2, complaint.) Alston sued the Town of Brookline, claiming that "[a]s a result of nearly three years of discriminatory and retaliatory harassment Mr. Alston has suffered from severe anxiety, depression, rage, humiliation, loss of self-esteem and severe emotional distress." Id. at 5. He alleged under chapter 151(B), § 4(1) that he was a member of a protected class; he engaged in a protected activity by speaking out; and he was subjected to unequal, unacceptable working conditions and practices because of his race. Id. at 5-6.
On June 25, 2014, the Town moved for dismissal of the action for discovery violations; on July 8, 2014, final judgment was entered for the Town. Id. at 10-12. Approximately one year later, Alston filed a motion for relief from judgment under Mass. R. Civ. P. 60(b), id. at 11, and on July 10, 2015, Judge Connors denied the motion in a written Order. Id. at 14. Judge Connors found that: final judgment had entered because of Alston's failure to comply with the court's order concerning an overdue discovery response; Alston moved to be relieved from the judgment because of "excusable neglect," but the only support he offered for his motion was a five-sentence affidavit from counsel stating that he had moved his office a year before the entry of judgment; and there was no explanation for the delay of a year in filing the motion for relief from judgment. Id. The court found that "the history of this case is replete with multiple instances of the defendant's having to file repeated motions seeking the court's assistance to compel the plaintiff to provide discovery ... The conduct at issue here is reflective not of `mistake, inadvertence or excusable neglect' as referenced in Rule 60(b), but rather of egregious inattention of counsel or client." Id. at 14-15.
The Town defendants join in the individual defendants' motion to dismiss on the grounds that this court lacks jurisdiction under the Rooker-Feldman doctrine (# 122 at 22), which prohibits "federal complaints ... [that] essentially invite[] federal courts of first instance to review and reverse unfavorable state-court judgments." Exxon Mobil Corp. v. Saudi Basic Indust. Corp., 544 U.S. 280, 283, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005); see D.C. Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 S.Ct. 362 (1923). The rationale for the doctrine is that Congress, in enacting 28 U.S.C. § 1257, gave authority only to the United States Supreme Court to reverse or modify state court judgments; lower federal courts are not the "appropriate appellate proceeding" in which to correct state court errors, as "[t]he jurisdiction possessed by the District Courts is strictly original." Rooker, 263 U.S. at 415-16, 44 S.Ct. 149. Despite the uncontroversial foundation on which it rests, the doctrine spawned decades of confusion, in large part because courts often blurred the distinction between the doctrine and the law of claim preclusion. See Allison B. Jones, The Rooker-Feldman Doctrine: What Does It Mean To Be Inextricably Intertwined? 56 Duke Law Journal 643, 661-678 (2006) (discussing circuits' differing interpretations of the doctrine prior to Exxon Mobil); GASH Associates v. Village of Rosemont, Ill., 995 F.2d 726, 728 (7th Cir. 1993) (stating that while equating Rooker-Feldman doctrine with preclusion is understandable, the two concepts are distinct).
The Supreme Court finally clarified the rule in Exxon Mobil, 544 U.S. at 291-94, 125 S.Ct. 1517; see Federation de Maestros de Puerto Rico v. Junta de Relaciones del Trabajo de Puerto Rico, 410 F.3d 17, 20-21 (1st Cir. 2005) (describing "the somewhat uncertain path" First Circuit law had taken prior to "the clarification provided by Exxon Mobil"). In Exxon Mobil, the Supreme Court plainly stated that the doctrine "is confined to ... cases brought by state-court losers complaining of injuries caused by state-court judgments
The Supreme Court in Exxon Mobil stressed that § 1257 does not "stop a district court from exercising subject-matter jurisdiction simply because a party attempts to litigate in federal court a matter previously litigated in state court." 544 U.S. at 293, 125 S.Ct. 1517. If a federal plaintiff presents some independent claim, one in which he is not simply complaining of the state court judgment itself, "`then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion.'" Id. (quoting GASH, 995 F.2d at 728). In other words, the doctrine is narrow; it only prohibits de facto appeals of state court judgments, and it is distinct from the law of issue and claim preclusion. "Rooker-Feldman is not simply preclusion by another name." Lance, 546 U.S. at 466, 126 S.Ct. 1198.
The present case is not barred by the Rooker-Feldman doctrine because Alston is not attempting to appeal any decision rendered by the state court. The plaintiff's suit in McKenna v. Curtin, 869 F.3d 44, 47 (1st Cir. 2017), was barred by Rooker-Feldman because he complained in federal court that the suspension of his license to practice law in Rhode Island through a state disciplinary hearing was in violation of his state and federal rights, and asked the district court to countermand that order. Id. at 48. Alston's complaint here is not based on actions taken by the state court. He does not take issue with what the court there decided.
Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003).
In this matter Alston is asserting a legal wrong perpetrated by the Town and various town officials. He is not seeking relief from any state court judgment. Rooker-Feldman does not apply. See Silva v. Massachusetts, 351 Fed.Appx. 450, 455 (1st Cir. 2009) (stating that Rooker-Feldman applies where plaintiff's federal action complains of injuries directly caused by the state court judgment); Galibois v. Fisher, 174 Fed.Appx. 579, 581 (1st Cir. 2006) (finding Rooker-Feldman inapplicable where plaintiff sought relief "not from an injury allegedly caused by the state court but from an injury allegedly inflicted by the defendant."). The motion should be denied.
The Town defendants join the individual defendants' motion asserting that plaintiff's claims are barred by the doctrine of claim preclusion. (# 186.) The effect that the Norfolk Superior Court action has on this case is determined according to Massachusetts law. Torromeo v. Fremont, 438 F.3d 113, 115 (1st Cir. 2006); see also 28 U.S.C. § 1738.
In Massachusetts, claim preclusion "makes a valid, final judgment conclusive on the parties and their privies, and prevents relitigation of all matters that
Final judgment entered in the Norfolk Superior Court case on motion of the defendant under Mass. R. Civ. P. 33(a)(3) for Alston's failure to comply with the court's discovery orders. See # 15-2 at 11 (docket); 12 (Final Judgment Order); 14-15 (Judge Conner's Order denying plaintiff's motion for relief from judgment). Under Mass. R. Civ. P. 41(b)(3), such a dismissal "operates as an adjudication upon the merits." Dawe v. Capital One Bank, 456 F.Supp.2d 236, 241 (D. Mass. 2006) (finding that state court dismissal for discovery sanction satisfied requirement of "final judgment on the merits" for claim preclusion, as under Massachusetts law, an involuntary dismissal constitutes an "adjudication on the merits" under Rule (41)(b)(3)); see Jarosz v. Palmer, 436 Mass. 526, 536, 766 N.E.2d 482 (2002) (finding that dismissal with prejudice constitutes a valid and final judgment for purposes of claim preclusion). The requirement under the doctrine of claim preclusion that the previous action must have resulted in a "final judgment on the merits," Kobrin, 444 Mass. at 843, 832 N.E.2d 628, does not mean any issues had to have been actually litigated. "`Adjudication on the merits' is not synonymous with the actual litigation and determination of the facts of a case." Dawe, 456 F.Supp.2d at 241 n.3 (citing Semtek Int'l, Inc. v. Lockheed Martin Corp., 531 U.S. 497, 498, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001)) (stating that "adjudication upon the merits" under federal counterpart to Mass. R. Civ. P. 41(b)(3) means action was dismissed with prejudice). This requirement is met.
The Town of Brookline was the sole defendant in the first suit; in the present suit, the Town and various officials sued in their official capacities are named as defendants. Since an official sued in his official capacity "is a proxy for the government entity that employs him and is in privity with that entity," see Goldstein v. Galvin, 719 F.3d 16, 23 (1st Cir. 2013) (citation omitted), the Town defendants here are identical with the defendant named in the Norfolk Superior Court action, and the requirement of identity of the parties is met.
The individual defendants, however, cannot be said to have been in privity with the Town defendants in the first suit.
The Town defendants do not ask the court to dismiss Alston's claims against the Town arising from actions that occurred after the Norfolk Superior Court action was dismissed. (# 111 at 1-2.) They ask the court to find that factual allegations raised in the Norfolk Superior Court suit are barred by the doctrine of claim preclusion, and concede that allegations that post-date the dismissal of the Norfolk Superior Court suit, such as those concerning Alston's termination, should proceed in this court.
Massachusetts courts use a transactional approach to determine whether claims are the same. Saint Louis v. Baystate Med. Ctr., Inc., 30 Mass.App.Ct. 393, 399, 568 N.E.2d 1181 (1991). "A claim is the same for [claim] preclusion purposes if it is derived from the same transaction or series of connected transactions." Id. What factual grouping constitutes "a transaction" is to be determined pragmatically, giving weight to such factors as "whether the facts are related in origin or motivation and whether they form a convenient trial unit." Id. at 399, 568 N.E.2d 1181.
The voicemail incident occurred in 2010. (#108 ¶ 1.) Alston filed the Norfolk Superior Court action in 2013. (#15-2 at 8.) Alston alleged that after the voicemail incident, he was discriminated against and retaliated against for reporting the incident and for complaining about Pender's subsequent promotion, and that his superiors and the Town not only did nothing to help him but in fact participated in further violation of his rights. Id. at 1-5.
The Norfolk Superior Court case was dismissed in June 2014; Alston's motion for relief from judgment was denied in June 2015. (#15-2 at 11.) Alston filed the action in this court in December 2015. (#1.) Although his present allegations originate from the voicemail incident as did the Norfolk Superior Court matter, see #108 ¶ 6, they are substantially broader and post-date to a significant degree the claims brought in the Norfolk Superior Court action. For example, in the present case, Alston complains about many discriminatory and retaliatory actions taken against him occurred after the dismissal of the Norfolk Superior Court case, by Board members and others in Town government, in response to his attempts to return to work after being put on leave. See, e.g., #108 ¶¶ 32(a), (b), (d), (t), (u), (v). He specifically alleges that after the Norfolk Superior Court case was dismissed, the Board intensified its retaliation against him by terminating his pay. Id. ¶¶ 36, 40-42. Some of the allegations Alston makes are supported by information he alleges he did not receive until after the Norfolk Superior Court case was dismissed. See, e.g., id. ¶ 32(z). Eventually, in October 2016,
Here, where Alston is not only complaining of being retaliated against by being ostracized and treated differently from others at work as he did in the first suit, but is complaining about many more acts of retaliation, including being suspended without pay and being terminated, he is not putting forth claims "based on the same set of operative facts and seek[ing] redress for the same wrongs" as in the prior case. TLT Const. Corp. v. A. Anthony Tappe and Associates, Inc., 48 Mass.App.Ct. 1, 8, 716 N.E.2d 1044 (1999). Nor can it be said that Alston knew the substance of the present claims when he filed the first claim. In fact, he could not possibly have known the substance of them, as they had not yet occurred. Compare Massaro v. Walsh, 71 Mass.App.Ct. 562, 567, 884 N.E.2d 986 (2008). The instant allegations "involve subsequent conduct, and thus lack sufficient identicality of causes of action with the earlier suit." Gonzalez-Pina v. Rodriguez, 407 F.3d 425, 430 (1st Cir. 2005) (finding that claim preclusion did not apply where employee returning to work after first action was subjected to new conduct) (internal quotations omitted). Subsequent conduct, "`even if it is of the same nature as the conduct complained of in a prior lawsuit, may give rise to an entirely separate cause of action.'" Id. (quoting Kilgoar v. Colbert Cty. Bd. of Educ., 578 F.2d 1033, 1035 (5th Cir. 1978)); see also Walsh v. International Longshoremen's Ass'n, AFL-CIO, Local 799, 630 F.2d 864, 873 (1st Cir. 1980) (finding a second action not barred by claim preclusion where "subsequent conduct was broader and more far-reaching than the conduct which led to the original complaint").
The Town defendants do not ask the court to bar the present proceeding under the doctrine of claim preclusion, but ask the court to excise the facts alleged in the first case from the present case. Obviously, such a ruling would complicate the trial of the case; at argument on January 5
The Town defendants join in the individual defendants' motion that Alston's claims are barred by the statute of limitations. The individual defendants argue simply that "[t]o the extent that the Plaintiff relies upon the incident with Lt. Pender his Section 1983 and Section 1985 claims are time-barred," and add that "[t]he same result is required upon analysis of the plaintiff's claims under Section 1981 ..." (#122 at 23.) They do not cite one case in support of their assertion that the 2010 voicemail incident triggered the statute of limitations. The court is not persuaded.
Alston filed his first complaint in this case in December 2015. (#1.)
Because Alston successfully alleges serial violations, the court need not take up whether he has successfully pled systemic violations. See Megwinoff v. Banco Bilbao Bizcaya, 233 F.3d 73, 76 (1st Cir. 2000) ("Systemic violations have been recognized rarely, usually in instances of a discriminatory promotion, hiring, training, or compensation system where direct evidence, statistics, or other evidence demonstrate the discriminatory effects of that policy.").
Here, Alston's claims did not accrue when Pender called him a racial slur in 2010, as defendants argue. (#122 at 23.) Alston alleges that he tried for years to work with the Board to ameliorate the problems that arose after he complained of the voicemail incident and was retaliated against for complaining, and even alleges that as time passed, the Board deceived him into thinking that a resolution would be found. See, e.g., #108 ¶¶ 33, 43-46. One could say that the alleged unlawful acts of the Town "crystallized" and had a "tangible effect" on Alston at least as recently as October 2014 (prior to his filing this case in December 2015) when the Board suspended Alston without pay, a date well within the four-year statute of limitations. (#1 ¶ 11.) There is no statute of limitations bar under § 1981.
Defendants make no argument concerning the statute of limitations for Alston's conspiracy claims under § 1985, see #122 at 22-23, therefore, any argument on this point is waived.
Local legislators have absolute immunity from suit under § 1983 for their legislative activities. Bogan v. Scott-Harris, 523 U.S. 44, 49, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998). "Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it." Id. at 54, 118 S.Ct. 966. Acts such as voting for an ordinance, introducing a budget, or vetoing a law, are all legislative acts for which governmental actors may not be sued. Id. at 55, 118 S.Ct. 966. Absolute immunity, however, does "not apply to administrative or executive functions. The touchstone is the nature of the contested action, not the job title of the official who is sued." Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 4 (1st Cir. 2000).
Individual defendants DeWitt, Goldstein, Daly, Mermell, Wishinsky, Greene, Franco, and Heller (all Board members) move to dismiss all of the claims against them in Count II as barred by the doctrine of legislative immunity. Defendants do not specify what particular alleged acts are covered by this claim. (#122 at 23-25.) They argue in their memorandum that "they were engaged in legislative acts when they proposed, discussed and voted upon the policies at issue" and so "their alleged personal motives in doing so is irrelevant." Id. at 24. This statement suggests that their argument is limited to claims having to do with promulgating policies, but then they move to dismiss all the claims against them, id. at 25, which obviously encompass a wider range of actions.
The Town defendants join in the individual defendants' motion to dismiss counts alleging a violation of § 1983 for failure to state a claim. (#122 at 36-40.) Section 1983 "is a vehicle through which individuals may sue certain persons for depriving them of federally assured rights, such as the First Amendment's right to free speech...." Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir. 2008). A claim under § 1983 has two essential elements: the defendant must have acted under color of state law, and his or her conduct must have deprived the plaintiff of rights secured by the Constitution or by federal law. Id. "The second element requires the plaintiff to show `that the [defendant's] conduct was the cause in fact of the alleged deprivation.'" Id. (quoting Rodriguez-Cirilo v. Garcia, 115 F.3d 50, 52 (1st Cir. 1997)).
Alston claims his First Amendment rights initially were violated when he was retaliated against for reporting the voicemail incident. "When a government actor retaliates against someone for exercising constitutionally protected First Amendment rights, that individual has a cognizable retaliation claim pursuant to § 1983." Najas Realty, LLC v. Seekonk
Alston has made out a claim for First Amendment retaliation based on free speech. Alston complained about being called a racial slur by a superior, says that he was retaliated against by his fellow-firefighters, and the individual defendants did nothing to help him. (#108 ¶¶ 1, 32.) Instead, they made matters worse by failing properly to sanction the superior, encouraging those who were discriminating against him, and then retaliating against him themselves. Id. Alston's speech, i.e., complaining about the voicemail incident, and then complaining that he was mistreated for reporting the incident, is undeniably protected conduct. See Connick v. Myers, 461 U.S. 138, 148 n.8, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (stating that the "right to protest racial discrimination [is] a matter inherently of public concern").
Allegations that the individual defendants did nothing to stop retaliatory harassment by others, such as Alston's fellow firefighters, is in itself adequate to plead a cause of action against the individual board members. See Manzer v. Town of Anson, 771 F.Supp.2d 121 (D. Me. 2011) (denying motion to dismiss action for harassment for protected speech). In Manzer, the protected speech consisted of a supervisor's "deleting overtime from [plaintiffs'] timecards, forcing them to work unnecessarily during Selectmen's meetings, and threatening their employment." Id. at 131. The court found plaintiffs stated a claim against the selectmen, as their complaint established a reasonable inference that that the selectmen knew of the protected speech, did nothing in response, and thus tacitly authorized violation of rights. Id. at 132. Here, it is not disputed that the Board knew what had happened to Alston and that he complained about it, and one may reasonably infer from the progression of events set out in the third amended complaint that the Board did not help him when he was subjected to retaliation. Therefore Alston, like the Manzer plaintiffs, has stated a claim that the individual defendants violated his free speech rights.
Alston has adequately pled an adverse employment action. See Barton, 632 F.3d at 29 (holding that "adverse employment action" under § 1983 analysis focuses on whether defendant's actions would deter reasonably hardy person from exercising rights; even relatively minor events can give rise to liability). Alston makes many specific allegations that the individual defendants took adverse employment actions against him as a result of his protected complaints about his treatment. For example, Alston claims that Town Counsel failed to investigate matters pertaining to his case, including the "Leave" incident, and recommended terminating Alston without notice or a hearing. (#108 ¶¶ 161-63, 166.) The Human Resources Director is accused, among other things, of participating in the decision to give Pender "grossly insufficient discipline," of failing to investigate Alston's retaliation complaints, failing to investigate the "Leave" incident, and
Alston also claims retaliation for petitioning the government for redress of grievances, a charge which can take many forms, see Powell v. Alexander, 391 F.3d 1, 16 (1st Cir. 2004) (citing cases), including termination of an employee. See Fishman v. Clancy, 763 F.2d 485, 486-87 (1st Cir. 1985) (finding attempts to terminate public school teacher for filing grievances and engaging in other First Amendment activities cognizable under § 1983). A claim for retaliation for petitioning the government for redress of grievances is governed by the two-part burden-shifting analysis established by the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Alston must first show by a preponderance of the evidence that he "engaged in constitutionally protected conduct, and that the conduct was a substantial or motivating factor for the adverse employment decision." Padilla-Garcia v. Guillermo Rodrigues, 212 F.3d 69, 74 (1st Cir. 2000).
In short, Alston has met his burden adequately to plead a claim under § 1983: he has pled that the defendants were acting under color of state law, and their actions deprived him of rights secured by federal law and by the Constitution. Gagliardi, 513 F.3d at 306. The motion should be denied.
The Town defendants join in the individual defendants' motion that Alston has failed to state a claim under Title 42 U.S.C. § 1981. (#122 at 33-36.) Section 1981 prohibits racially discriminatory impairment of one's right "to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens." 42 U.S.C. § 1981(a). The statute defines "make and enforce contracts" as "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b).
In the First Circuit, "`[t]o state a claim under this statute, a plaintiff must show (1) that he is a member of a racial minority, (2) that the defendant discriminated against him on the basis of his race, and (3) that the discrimination implicated one or more of the activities enumerated in the statute.'" Odunukwe v. Bank of Am., 335 Fed.Appx. 58, 61 (1st Cir. 2009) (quoting Garrett v. Tandy Corp., 295 F.3d 94, 98 (1st Cir. 2002)).
Bhatti v. Trustees of Boston Univ., 659 F.3d 64, 70 (1st Cir. 2011) (internal citation and footnote omitted) (affirming summary judgment in favor of employer).
Under the McDonnell Douglas burden-shifting scheme, "a plaintiff bears the initial burden of proffering evidence sufficient to establish a prima facie case of discrimination." Cherkaoui v. City of Quincy, 877 F.3d 14, 24 (1st Cir. 2017). The defendant then has the burden of articulating a legitimate, nondiscriminatory reason for the adverse employment action. Id. (citations omitted). If defendant accomplishes this task, the plaintiff then has the burden of offering "evidence that [defendant's] explanation is pretextual and that discriminatory animus prompted the adverse action." Id. (quotation marks and citations omitted).
The question here is whether Alston has set out a prima facie case. Alston is a member of a racial minority and as set out above, he has adequately alleged that the Town defendants and each of the individual defendants engaged in racial discrimination, including harassment, retaliation, and termination, that adversely impacted his employment. For purposes of a motion to dismiss under Rule 12(b)(6), he has adequately alleged facts from which one could infer that the harms he suffered were because of his race. Therefore, he has adequately pled a claim under § 1981.
Plaintiff's only mention of § 1985 in the third amended complaint is in Count II, where he includes it along with §§ 1981 and 1983 in claims against the individual defendants for enforcing the Town's unconstitutional custom, for retaliating against Alston for opposing the Town's custom, and for discriminating against Alston on the basis of race. (#108 ¶¶ 199-202.) Alston does not specify under which subsection of § 1985 he is suing. In fact, Alston's sole mention of the § 1985 claim is one sentence in an opposition to a previous motion to dismiss, which consists of a citation to Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), a case which deals with § 1985(3). In light of this clue, the court will assume that Alston's claim is made under § 1985(3).
"Section 1985(3) prohibits two or more persons in any State or Territory from conspiring to deprive any person or class of persons of the equal protection of the laws." Perez-Sanchez v. Public Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008) (internal punctuation, quotation marks, and citation omitted). The claim has four elements: "First, the plaintiff must allege a conspiracy; second he must allege a conspiratorial purpose to deprive the plaintiff of the equal protection of the laws; third he must identify an overt act in furtherance of the conspiracy; and finally, he must show either injury to person or property, or a deprivation of a constitutionally protected right." Id. at 107.
Alston alleges a conspiracy, see, e.g., #108 ¶¶ 1, 27-29, 32-33, 46-49, 59, 151; he alleges a conspiratorial purpose to deprive him of equal protection of the laws, id.; he identified overt acts, id.; and he demonstrates injury, id. ¶¶ 32, 36, 42. Thus, he has adequately pled a viable § 1985 claim, and it should not be dismissed.
The individual defendants assert that they are protected by the doctrine of qualified immunity. The First Circuit has adopted a two-part test for qualified immunity: "(1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was `clearly established' at the time of the defendant's alleged violation." Ciolino v. Gikas, 861 F.3d 296, 303 (1st Cir. 2017) (quotation marks and citations omitted); see also D.C. v. Wesby, ___ U.S. ___, 138 S.Ct. 577, 589, 199 L.Ed.2d 453 (2018). The second step of the analysis "has two elements: We ask (a) whether the legal contours of the right in question were sufficiently clear that a reasonable [defendant] would have understood that what he was doing violated the right, and (b) whether in the particular factual context of the case, a reasonable [defendant] would have understood that his conduct violated the right." Ciolino, 861 F.3d at 303 (internal quotation marks and citations omitted). "Qualified immunity is an affirmative defense, and thus the burden of pleading it rests with the defendant." DiMarco-Zappa v. Cabanillas, 238 F.3d 25, 35 (1st Cir. 2001); Tibbs v. Samuels, No. CV 13-11095-DJC, 2017 WL 1164484, at *13 (D. Mass. Mar. 28, 2017) (citations omitted). "It is generally unwise though to venture into a qualified immunity analysis at the pleading stage because in the majority of cases it is necessary to develop the factual record to test the veracity of the complaint's allegations." Maroney v. Fiorentini, No. 16-CV-11575-DLC, 2017 WL 6063064, at *8 (D. Mass. Dec. 7, 2017).
These well-established laws would have been understood by public officials. See El Dia, Inc. v. Governor Rossello, 165 F.3d 106, 109-10 (1st Cir. 1999) (affirming denial of motion to dismiss on qualified immunity grounds where relevant free speech rights were clearly established and "mistaken judgment" could not apply) (citation omitted); Hayes v. State of R.I. Dep't of Bus. Regulation, 70 F.3d 1252 (1st Cir. 1995) (Table) ("[W]e summarily affirm the district court's purely legal determination that, at the time of the challenged conduct, there existed a clearly established right under the fourteenth amendment's equal protection clause to be free from sex discrimination in the workplace.") (citing Lipsett v. University of Puerto Rico, 864 F.2d 881, 884-85 (1st Cir.1988)). Reasonable individuals would have understood that the actions of which Alston complained, such as terminating him because he complained of racial discrimination, violated his rights.
To the extent the individual defendants dispute Alston's characterization of the employment actions taken against him and their roles in these acts, these are factual issues. Factual disputes preclude dismissal based on qualified immunity. See McCue v. City of Bangor, Maine, 838 F.3d 55, 61-62 (1st Cir. 2016); Maldonado v. Fontanes, 568 F.3d 263, 267-72 (1st Cir. 2009); Sebunya v. Cty. of Cumberland, 201 F.3d 428 (1st Cir. 1999) (dismissing defendants' interlocutory appeal for lack of jurisdiction where application of qualified immunity turned on "factual questions as to whether defendants acted with discriminatory intent").
At this stage of the case, the facts alleged by the plaintiff make out violations of constitutional rights, and those rights were "clearly established at the time of the defendant's alleged violation." Maldonado, 568 F.3d at 268-69. The individual defendants are not entitled to dismissal based on qualified immunity at this time, without prejudice to renew on summary judgment.
Both the Town defendants and the individual defendants assert that "[t]o the extent that the plaintiff's claims are based upon claimed loss of pay while he was out of work on stress or otherwise unfit for duty, his remedy for redress is G.L. c. 41, § 111F."
"A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them." Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988); see also Camreta v. Greene, 563 U.S. 692, 705, 131 S.Ct. 2020, 179 L.Ed.2d 1118
Clinton v. Jones, 520 U.S. 681, 690 n.11, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) (internal quotations and citations omitted).
The doctrine does not apply here. Alston has raised valid constitutional claims that cannot be avoided by application of a Massachusetts statute having to do with firefighters' entitlement to paid leave while injured on the job. His constitutional claims are not "abstract, hypothetical or contingent," nor is he asking the court to "formulate a rule of constitutional law broader than is required." Id. This is not a case such as Sony BMG Music Entertainment v. Tenenbaum, 660 F.3d 487, 511 (1st Cir. 2011), where the First Circuit held that a district court erred in unnecessarily deciding the question whether a jury's award of damages was constitutionally excessive, when the court could have simply ordered remittitur. "If the district court had ordered remittitur, there would have been a number of possible outcomes that would have eliminated the constitutional due process issue altogether...." Id. at 513. Contrary to defendants' assertion that "it is clear that the action is based almost, if not, entirely upon G. L. c. 41, § 111F," Alston's claims are much broader than the question of whether he was properly granted paid leave or not when he was injured. Defendants' arguments fail.
Town Counsel Murphy, one of the individual defendants, argues that because she is "the legal advisor to the Board ... her communications with the Selectmen in carrying out that function stand on a unique, protected footing." (#122 at 41.) As she "merely conveyed to her client the information that had been provided to her," "had no decision-making authority over the terms of Murphy's [sic] continued employment," and "did not know or direct what the Town would do with the information," she could not have deprived Alston of his employment. Id. at 41-42. Murphy further argues that because she is an attorney, "she must be given qualified immunity in these circumstances in order to protect her attorney-client relationship with the Town." Id. at 42.
Murphy does not cite one case in support of her argument, and this court cannot find one that even indirectly validates it. There is nothing about her position as an attorney for the Town, or the fact that she was not the final decision-maker regarding Alston's employment, that prohibits her from being sued. See Powell v. Alexander, 391 F.3d 1 (1st Cir. 2004) (finding that city solicitor for Pittsfield, Massachusetts may properly be sued under § 1983 in her individual capacity for her part in violating rights of plaintiff, a police officer, by participating in concerted campaign to prevent his reinstatement to the city's police force in retaliation for his exercise of constitutional rights). The motion should be denied.
For all of the reasons stated, I RECOMMEND that the Individual Defendants' Motion to Dismiss Third Amended Complaint (#112) be DENIED.
The parties are advised that any party who objects to this Report and Recommendation must file specific written objections with the Clerk of this Court within 14 days of the party's receipt of it. The objections must specifically identify the portion of the Recommendation to which objections are made and state the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b), Fed. R. Civ. P., shall preclude further appellate review. See Keating v. Secretary of Health & Human Servs., 848 F.2d 271 (1st Cir. 1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir. 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980); see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).
Hill v. Textron Auto. Interiors, Inc., No. CIV. 00-221-M, 2001 WL 276972, at *6 (D.N.H. Mar. 17, 2001) (internal citations omitted).
