Alston v. Town of Brookline
Alston v. Town of Brookline
Opinion of the Court
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.
1 After reviewing the parties' submissions concerning the objections, I agree that the Rooker - Feldman Doctrine does not bar the present case, but I conclude *517that the doctrine of claim preclusion does apply, because the claims at issue could have or should have been brought in the prior action. See O'Neill v. City Manager of Cambridge ,
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.
REPORT AND RECOMMENDATION ON TOWN DEFENDANTS' PARTIAL MOTION TO DISMISS (# 110).
M. Page Kelley, United States Magistrate Judge
I. Introduction.
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)
II. Procedural History.
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.
*518Before the court acted on the motion to dismiss, Alston filed a first amended complaint on January 26, 2016, which was styled as a class action. (# 21.) The amended complaint added seven new plaintiffs who claimed that they, too, had been racially discriminated against by the Town.
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 3 8 and 20, and that all plaintiffs other than Alston be required to file new, separate lawsuits. (# 72.)
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);
*519The Town defendants' motion to dismiss is limited to (1) portions of the third amended complaint relating to "policy choices by the Town regarding the powers and jurisdiction that various Town committees should have," including the Town Meeting's amendment of a bylaw to remove jurisdiction over employee complaints of racial discrimination from a certain commission, and a claim that the bylaw as amended is unconstitutional; and (2) portions of the complaint "relating to alleged discrimination against third parties by unrelated actors spanning decades." (# 110 at 2, # 111 at 3.) The Town defendants do not seek dismissal of Alston's claims against the Town defendants arising from an alleged hostile work environment and Alston's ultimate termination. (# 111 at 1-2.)
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.
II. Allegations in the Third Amended 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)
A. Facts Pertaining to Alston.
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 *520"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."
In September 2010, Pender served a "two 24-hour shift suspension."
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."
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."
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."
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."
By early 2014, the Town had placed Alston on unpaid leave "with the intent to terminate his employment."
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.
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."
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.
Despite the Town psychiatrist's recommendation that the Town develop a plan *522that 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."
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.
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."
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.
B. The Structure of Town Government.
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:
The Selectmen are the ultimate decision-makers with respect to the hiring, firing, promotion, demotion, and discipline (Selectmen must approve suspensions longer than 5 days) of Brookline police officers and firefighters. The Selectmen have the authority to hire and fire the *523town administrator, the town counsel, the director of human resources, the police chief, the fire chief, and other department heads. The Selectmen appoint members of Town boards and commissions, including the Town's Diversity, Inclusion, and Community Relations Commission [ ] and the prior Human Relations Commission. The Selectmen are responsible for adopting and overseeing town administrative policies, including the Town's anti-discrimination and retaliation policy, and representing the Town of Brookline in lawsuits, as plaintiff and defendant. The Chair of the Brookline Board of Selectmen sets the agenda for the Board and communicates regularly with the administrative staff, including the town counsel, human resources director, and the town administrator. The Selectmen frequently appoint and serve on ad-hoc committees to address Town issues.
C. The Custom.
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.
1. Effect on Housing Demographics.
Alston contends that the custom has affected the racial makeup of the Town's population compared to neighboring Boston.
2. Effect on Employment.
a. Composition of the Town Workforce.
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.
b. Treatment of Town Employees.
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 *526heroin and drank frequently while employed by the Town. Id. Despite his being arrested, the Town took no disciplinary measures against the white employee and did not make him enroll in a substance abuse program or subject him to drug or alcohol testing. Id. ¶ 109. This same employee was fired by his previous employer in 2000 after being arrested for armed robbery while masked. Id. ¶ 110. According to Alston, "the white [DPW] employee's misconduct was an open secret among Town employees." Id. ¶ 112.
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.
*527
On December 7, 2015, Sergeant Robert Lawlor, a white BPD officer, "was protected from any substantial disciplinary action after he told Prentice Pilot
D. Diversity and Anti-Discrimination Commissions.
1. The Human Relations Commission.
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.
*528At the end of 2012, the Human Relations Commission
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.
2. Diversity, Inclusion, and Community Relations Commission.
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 *529any interviews with Black firefighters, and only five out of the fifteen Black firefighters responded to written survey questions. Id. ¶ 57. As part of its conclusion, the report stated that "Black respondents in the fire department 'believed it was not clear to whom to report harassment incidents' and that 'their work is not valued by others.' " Id. The report did not include any concrete steps for change. Id.
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.
III. Standard of Review.
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 ,
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."
IV. Discussion.
As stated above, the Town defendants do not seek dismissal of claims relating to *530alleged racially-motivated actions taken against Alston, including claims "arising from an alleged hostile work environment and his termination...." (# 111 at 1.) The motion is limited to allegations concerning: 1) "[t]he portions of the Complaint relating to policy choices by the Town regarding the power and jurisdiction" of Town committees and the asserted unconstitutionality of Article 3.14 of the Town bylaws; and 2) allegations of "alleged discrimination against third parties by unrelated actors spanning decades." Id. at 3.
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.
A. The Law.
1.
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
Section 1981 has been interpreted to cover various forms of employment discrimination:
[Plaintiff] grounds her claims in both Title VII and42 U.S.C. § 1981 . The same legal framework applies to both statutory bases.... This framework allows for distinct claims of disparate treatment, retaliation, and hostile work environment, all of which [plaintiff] alleges, *531and all of which fit into the familiar McDonnell Douglas burden-shifting scheme.
Bhatti v. Trustees of Boston Univ. ,
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 ,
2.
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 ,
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. ,
A claim of retaliation for petitioning the government for redress of grievances can take many forms, see Powell v. Alexander ,
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 ,
3. Municipal Liability.
Municipalities may be sued under § 1983. Monell v. Dept. of Soc. Serv. of City of N.Y. ,
must prove that "action pursuant to official municipal policy" caused [his] injury. Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law. These are "action[s] for which the municipality is actually responsible."
Connick v. Thompson ,
Municipal liability will attach if a violation occurs pursuant to an official policy or a custom. Welch v. Ciampa ,
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 ,
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 ,
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,
*534Whether an official "has this requisite level of specific policymaking authority is a matter of state law." Walden v. City of Providence, R.I.,
4. Proving Municipal Liability.
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 ,
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 ,
Those four reversals could not have put Connick on notice that the office's Brady training was inadequate with respect to the sort of Brady violation at issue here. None of those cases involved failure to disclose blood evidence, a crime lab report, or physical or scientific evidence of any kind. Because those incidents are not similar to the violation at issue here, they could not have put Connick on notice that specific training was necessary to avoid this constitutional violation.
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 *535Police Department of breaking down doors without warrants when apprehending felons.
The Third Circuit, in Watson v. Abington Twp. ,
Here ... the only evidence advanced by the Plaintiffs is evidence that officers at one point may have used racial profiling as a way to increase the number of traffic tickets they were writing and may have used racial slurs. This evidence is simply too general to sustain their claims. Our cases under Monell have typically involved an alleged constitutional violation that was an actual occurrence of the specific alleged custom . In Bielevicz [v. Dubinon,915 F.2d 845 (3d Cir. 19900) ], for example, we found that there was sufficient evidence of a custom of arresting people for public intoxication without probable cause to support a § 1983 claim that the plaintiff had been arrested for public intoxication without probable cause.915 F.2d at 851-52 . Similarly, in Beck v. Pittsburgh,89 F.3d 966 (3d Cir. 1996), we found that the plaintiff's § 1983 claim for police brutality could survive a motion for judgment as a matter of law based on evidence of the department's alleged custom of ignoring police brutality.Id. at 976 . Here, the Plaintiffs do not have evidence that the Abington Township Police Department had a custom of raiding establishments associated with African-Americans.
Watson ,
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 ,
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 ,
B. Allegations in the Third Amended Complaint.
1. Evidence to Establish Custom.
a. Housing Demographics.
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.
b. Municipal Employee Demographics
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.
c. Advantageous Treatment of White Individuals.
Alston's general statements regarding which Town agents "enforce" the *537"unconstitutional policy" are sufficiently related to his claims and should remain. Id. ¶¶ 65-66. However, Alston's statement that Brookline "favors white people and discriminates against Black people in all aspects of Town affairs, id. ¶ 79, is conclusory and should be stricken.
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.
*538d. Mistreatment of Black Individuals.
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.
e. Town Commissions.
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 *539entity responsible for his termination, and that Alston's treatment by the two commissions may have had some effect on the decision to terminate his employment, as set out below, several of the allegations in this section of the third amended complaint should not be stricken.
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 16th meeting regarding racial discrimination and the fear of retaliation, id. ¶ 147, and the subsequent decision to hold a meeting to address racism, id. ¶ 148, are sufficiently related to Alston's claims and should remain. The statement read by the DICR Commission at the January 5, 2016 meeting, id. ¶¶ 149, is potentially relevant to the Board's notice of alleged discrimination and should also remain.
Alston's contention that the Board has "failed to take up the DICR Commission's charge," id. ¶ 150, is conclusory and should be stricken.
2. The Constitutionality of Article 3.14.
The third amended complaint's reference to Article 3.14 is cursory:
In the spring of 2014, led by Selectwoman Daly, the Selectmen's ad-hoc Committee on Diversity, Equal Employment Opportunities, and Affirmative Action passed an article in Town Meeting which abolished the Human Relations Commission and replaced it with a Commission with no jurisdiction over the Town's *540workforce, the DICR Commission. The new bylaw is Article 3.14 of the Town's bylaws.
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 ,
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 ,
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.' "
*541Alston notes that a facially neutral law is still unconstitutional if its enactment or enforcement was motivated by a discriminatory purpose-in this case, to racially discriminate.
V. Conclusion.
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.
VI. Review by District Court Judge.
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. ,
REPORT AND RECOMMENDATION ON INDIVIDUAL DEFENDANTS' MOTION TO DISMISS THIRD AMENDED COMPLAINT (# 112).
I. Introduction.
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
II. The Facts.
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,
A. The Structure of Town Government.
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."
The Selectmen are the ultimate decision-makers with respect to the hiring, firing, promotion, demotion, and discipline (Selectmen must approve suspensions longer than 5 days) of Brookline police officers and firefighters. The Selectmen have the authority to hire and fire the town administrator, the town counsel, the director of human resources, the police chief, the fire chief, and other department heads. The Selectmen appoint members of Town boards and commissions, including the Town's Diversity, Inclusion, and Community Relations Commission [ ] and the prior Human Relations Commission. The Selectmen are responsible for adopting and overseeing town administrative policies, including the Town's anti-discrimination and retaliation policy, and representing the Town of Brookline in lawsuits, as plaintiff and defendant. The Chair of the Brookline Board of Selectmen sets the agenda for the Board and communicates regularly with the administrative staff, including the town counsel, human resources director, and the town administrator. The Selectmen frequently appoint and serve on ad-hoc committees to address Town issues.
B. Facts Pertaining to the Individual Defendants' Treatment of *543Alston.
Alston joined the Brookline Fire Department (BFD) in 2002.
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."
In September 2010, Pender served a "two 24-hour shift suspension."
In May 2012, Alston filed a complaint with the Massachusetts Commission Against Discrimination (the MCAD) "relating to the promotion."
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."
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."
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."
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."
By early 2014, the Town had placed Alston on unpaid leave "with the intent to terminate his employment."
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.
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."
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.
*545
The Town hired Dr. Marilyn Price, a board certified psychiatrist at Massachusetts General Hospital, to evaluate Alston.
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."
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.
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."
III. Motion to Dismiss Standard.
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 *546facts set forth in the complaint and draw all reasonable inferences therefrom in the pleader's favor.' " Haley v. City of Boston ,
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 ,
IV. Discussion.
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.)
A. The Rooker-Feldman Doctrine and Claim Preclusion.
1. The Norfolk Superior Court Case.
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.
*547Id. at 5-6. He further claimed he was retaliated against under § 4(4) for engaging in protected activity, as he was shunned and humiliated at work and treated differently from others by not being granted certain "injured on duty" benefits. Id. at 6-7.
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.
2. The Rooker-Feldman Doctrine Does Not Apply.
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. ,
The Supreme Court finally clarified the rule in Exxon Mobil ,
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."
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 ,
If a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state court judgment based on that decision, Rooker-Feldman bars subject matter jurisdiction in federal district court. If, on the other hand a federal plaintiff asserts as a legal wrong an allegedly illegal act or omission by an adverse party, Rooker-Feldman does not bar jurisdiction.
Noel v. Hall ,
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 ,
3. The Doctrine of Claim Preclusion Does Not Apply.
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 ,
In Massachusetts, claim preclusion "makes a valid, final judgment conclusive on the parties and their privies, and prevents relitigation of all matters that *549were or could have been adjudicated in the action." Kobrin v. Bd. of Registration in Med. ,
a. There Was a Final Judgment on the Merits in State Court.
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,
*550b. The Town is an Identical Party But the Individual Defendants Are Not.
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,
The individual defendants, however, cannot be said to have been in privity with the Town defendants in the first suit.
c. The Claims Are Not Identical.
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.
*551Under the doctrine of claim preclusion, "the guiding principle is that [a party] is precluded from litigating not only those claims that were actually decided in the [previous] case but also those that could have been brought in that action." Bui,
Massachusetts courts use a transactional approach to determine whether claims are the same. Saint Louis v. Baystate Med. Ctr., Inc. ,
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, *552long after the dismissal of the Norfolk Superior Court case, after a lengthy dispute with the Board over what conditions he needed to meet in order to return to work, the Board terminated Alston's employment. Id. ¶¶ 59-61.
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. ,
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 5th, the Town defendants conceded that a jury would have to hear the initial facts concerning the voicemail incident in order to understand the case. They yet appear to request that under the doctrine of claim preclusion the trial judge instruct the jury that they could not award damages for anything occurring prior to the dismissal of the Norfolk Superior Court case. Where claim preclusion does not prevent a second case from going forward, ought the plaintiff to be prohibited from asking for damages concerning actions that were alleged in the first case? The court has not found any Massachusetts cases, and the Town defendants have not provided any, relating to this situation. In fact, the Town defendants have made no written argument pertaining to this question. The Town defendants have not met their burden to show that claim preclusion should apply in this manner, and the court recommends that their motion be denied.
B. The Claims Are Not Barred by the Statute of Limitations.
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.
*553Alston brings claims under
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 ,
*554The statute of limitations for § 1981 actions is four years. Buntin v. City of Boston,
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.
C. The Doctrine of Legislative Immunity.
Local legislators have absolute immunity from suit under § 1983 for their legislative activities. Bogan v. Scott-Harris ,
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."
*555There are some actions by the individual defendants alleged in the third amended complaint that clearly are not covered by legislative immunity. For example, Alston alleges that he was terminated because he is Black and in retaliation for his making claims of racial discrimination. (# 108 ¶ 158.) The actions of the Board in terminating employees are not protected by legislative immunity, except in particular circumstances which are not present here. See, e.g. , Acevedo-Garcia v. Vera-Monroig,
D. Failure to State a Claim.
1. Count II Alleging Violation of § 1983 Does Not Fail to State a Claim.
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 ,
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."
*556Najas Realty, LLC v. Seekonk Water Dist. ,
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.
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,
Alston has adequately pled an adverse employment action. See Barton ,
Alston also claims retaliation for petitioning the government for redress of grievances, a charge which can take many forms, see Powell v. Alexander ,
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 ,
2. Count II Alleging Violation of § 1981 Does Not Fail to State a Claim.
The Town defendants join in the individual defendants' motion that Alston has failed to state a claim under Title
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. ,
*558Section 1981 has been interpreted to cover various forms of employment discrimination:
[Plaintiff] grounds her claims in both Title VII and42 U.S.C. § 1981 . The same legal framework applies to both statutory bases.... This framework allows for distinct claims of disparate treatment, retaliation, and hostile work environment, all of which [plaintiff] alleges, and all of which fit into the familiar McDonnell Douglas burden-shifting scheme.
Bhatti v. Trustees of Boston Univ. ,
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 ,
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.
*5593. Count II Alleging Violation of § 1985 Does Not Fail to State a Claim.
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 ,
" 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.,
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,
E. The Individual Defendants are Not Entitled to Qualified Immunity.
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 ,
*560Alston asserts that the individual defendants are liable under §§ 1981, 1983, and 1985 for enforcing the Town's unconstitutional custom by (1) racially discriminating against him, (2) violating his First Amendment rights to freedom of speech and to petition the government for redress of grievances, and (3) violating his Fourteenth Amendment right to equal protection. (# 108 ¶¶ 198-205.) Accepting Alston's well-pled allegations as true, and as explained above in part (D), Alston adequately claims the individual defendants violated clearly established anti-discrimination laws.
These well-established laws would have been understood by public officials. See El Dia, Inc. v. Governor Rossello ,
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,
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,
F. The Doctrine of Constitutional Avoidance Does Not Apply.
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,
considered practice not to decide abstract, hypothetical or contingent questions ... or to decide any constitutional question in advance of the necessity for its decision ... or to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied ... or to decide any constitutional question except with reference to the particular facts to which it is to be applied.
Clinton v. Jones ,
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."
G. Claims Against Town Counsel Should Not be Dismissed for Reasons of Public Policy.
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 ,
V. Conclusion.
For all of the reasons stated, I RECOMMEND that the Individual Defendants' Motion to Dismiss Third Amended Complaint (# 112) be DENIED.
*562VI. Review by District Court Judge.
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. ,
The Court only considers matters to which the defendants specifically objected. See e.g., Cortes-Rivera v. Dep't of Corr. & Rehab.,
Claims against the individual defendants in their official capacities are equivalent to claims against their government employer, the Town. Rosaura Bldg. Corp. v. Municipality of Mayaguez ,
Alston brings other claims against the individual defendants in their individual capacities and the firefighters' union. See # 108. The union does not have any motion to dismiss pending before the court at this time. The individual defendants filed a motion to dismiss the claims against them (# 112), which is addressed in a separate Report and Recommendation filed February 6, 2018.
Further references to "Rules" are to the Federal Rules of Civil Procedure.
The court found that the amended complaint "relates the stories of eight individual plaintiffs with no facts in common" (# 72 at 22) and that the allegations purportedly relating to Alston spanned centuries, alleged irrelevant facts, and were so jumbled as to make it impossible to identify his claims. Id. at 29-30.
This court recommended that the first amended complaint be dismissed with prejudice against one defendant, Stanley Spiegel; the District Court did not adopt this recommendation and instead permitted Alston to replead against Spiegel. (# 72 at 39; # 75 at 2.) After Alston filed his second amended complaint (# 78), the District Court adopted this court's recommendation (# 98) that claims against Spiegel be dismissed (# 105). The District Court further adopted this court's recommendation that Alston's attorney be sanctioned under Rule 11 for repleading against Spiegel with the same deficient allegations that were in the previous complaint (# 132), although the District Court enlarged the time period for attorneys' fees encompassed by the sanction (# 153).
Alston incorporates by reference his opposition to the individual defendants' earlier motion to dismiss (# 40), see # 133 at 6, and the court has reviewed that document in analyzing the pending motion.
Alston contends that the pending 12(b)(6) motion is barred under Rule 12(g)(2), which states that "[e]xcept as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion," because defendants did not raise the defense of failure to state a claim when they filed their previous Rule 12(f) motion to strike (# 86) and alternative Rule 12(e) motion for a more definite statement (# 88). (# 133 at 2-4.) This argument fails. The Town defendants previously have repeatedly filed motions to dismiss (## 10, 34) which the court has not addressed until now because of the glaring deficiencies in the previous complaints. Furthermore, plaintiff's interpretation of Rule 12, as applied in this circuit, is incorrect. See MMB Dev. Grp., Ltd. v. Westernbank Puerto Rico ,
The individual defendants have filed a separate motion to dismiss on many grounds, see # 112. Although the Town defendants did not file anything indicating that they wished to join in the individual defendants' motion to dismiss, at the hearing on January 5, 2018, counsel for the Town defendants informed the court that they do join in certain arguments made by the individual defendants. Those issues are addressed in the court's Report and Recommendation concerning # 112.
Alston refers to the "policy" throughout his pleadings. As explained infra , for purposes of municipal liability analysis, the alleged racist practices are more accurately described as a "custom" than a "policy" and the court will use the term "custom."
Each year from 2010 to 2014, the Director of Human Resources prepared reports for the Board relating to Alston. (# 108 ¶ 32t.) These "reports were used as the basis for opinions by the Town's psychiatrists regarding Mr. Alston's fitness for duty in 2014 and 2015, by an outside consultant regarding the propriety of the Town's response to Mr. Alston's complaint in 2015, and by an outside hearing officer hired to recommend Mr. Alston's termination as a Brookline firefighter in 2016."
Mr. Lampke presumably is the outside hearing officer referenced in # 108 ¶ 63.
As stated in the third amended complaint, "Brookline has a population of approximately 59,000, which is approximately 3% Black, 76% white, 16% Asian-American, and 5% Hispanic or Latino." (# 108 ¶ 3.)
Alston notes that the Board appointed a Black man as the director of the Human Rights Commission in 1971, but he resigned the following year complaining of "tokenism" and was replaced by a white man. (# 108 ¶ 76.) In 2014, the Board appointed a Black man with no civil rights qualifications to "head the new Office of Diversity, Inclusion, and Community Relations" but "[t]he remaining 24 department head positions in the Town have always been reserved for white people. Brookline also reserves the position of superintendent of schools and principal of the high school for white people. And out of Brookline's eight elementary schools, only one has had a Black principal." Id. ¶ 77.
The third amended complaint states that "[o]n February 28, 2010, the MCAD found probable cause to credit allegations that the Town of Brookline had fostered a racially hostile work environment in the parks department based on the use of racial slurs, including the N-word." (# 108 ¶ 32f.) It is unclear whether this allegation concerns the same finding as the one referenced in paragraph 98 of the third amended complaint.
The third amended complaint does not state the gender of the employee. See # 108 ¶¶ 83-86.
It should be noted that Joslin Murphy was not appointed to her position as Town Counsel until June 2013. (# 108 ¶ 15.) Alston fails to identify the individual acting as Town Counsel in 2007.
The race of the citizen is not alleged. Id. ¶ 113.
The third amended complaint does not explain who Prentice Pilot is. See # 108.
Attorney Ames, counsel for Alston, was a member of the Human Relations Commission and chair of a diversity subcommittee of the Commission during the time of the actions related in the third amended complaint. The court has commented before that certain of the pleadings in this case reference a long history of acrimony between Attorney Ames and the Town on the topic of racial discrimination. (# 72 at 2 n.1.) With regard to claims concerning the Human Rights Commission, the Town asserts that Attorney Ames simply failed to persuade the Town to adopt his view of how racial discrimination should be addressed in the Town, and none of his claims are actionable. See, e.g. , # 11 at 22. The court will confine itself to analyzing the pleadings and notes that facts concerning Attorney Ames's motives are not properly before the court on a motion to dismiss.
The third amended complaint notes that this commission is described as "the Town's civil rights commission" (# 108 ¶¶ 37, 137) and is "charged with enforcing the Town's by-law against racial discrimination" and "investigat[ing] and resolv[ing] complaints of racial discrimination, including Mr. Alston's." Id. ¶ 37.
Plaintiff requests that the court "[s]trike down Article 3.14 of the Town's bylaws as unconstitutional." (# 108 at 42.)
The date of this meeting is listed as both December 16, 2015 and January 16, 2015. See # 108 ¶¶ 58, 145-147.
As previously mentioned, in his opposition Alston incorporates an earlier opposition he filed to defendants' previous motions to dismiss, # 40. That 37-page pleading consists almost entirely of a rehash of factual allegations set out in the first two complaints, see id. at 5-34, and devotes only three pages to legal argument concerning the individual defendants' motion to dismiss.
The Supreme Court, in Jett v. Dallas Independent School District ,
If Alston is able to prove these elements, then defendants may avoid liability only by proving by a preponderance of the evidence that they would have taken the same action "even in the absence of the protected conduct." Mt. Healthy, 429 U.S. at 287,
While the "pattern of similar constitutional violations by untrained employees" standard necessary to make out a failure to train claim is not identical to that of general municipal custom, the Supreme Court has relied on failure to train cases in its analysis of general municipal liability. See, e.g., Bd. of Cty. Comm'rs of Bryan Cty., Okl. , 520 U.S. at 406-08,
The third amended complaint does not give many details about these matters and the court may revisit their relevancy as the case progresses.
Again, as with other facts the court finds should not be dismissed at this stage, the complaint contains little information about this incident and the court may revisit its relevancy as the case progresses.
The court's recommendation that ¶ 137 stand is limited to the extent that it asserts that the Human Relations Commission began to investigate Alston's case and should not be construed as allowing Alston to advance claims relating to the overly broad category of "racial discrimination in the Town's workforce." (# 108 ¶ 137.)
The Town defendants informed the court at the hearing on this motion on January 5, 2018, that they join in the individual defendants' motion with regard to certain arguments. The results will be noted infra .
The defendants are the Town of Brookline (the Town), its board of selectmen (the Board), town counsel and the human resources director in their official capacities (collectively, the Town defendants); the union of firefighters to which Alston belonged (the Union); former Selectwoman Betsy DeWitt, former Selectwoman Jesse Mermell, former Selectman Kenneth Goldstein, current Selectman Neil Wishinsky, former Selectwoman Nancy Daly, current Selectman Bernard Greene, current Selectman Ben Franco, current Selectwoman Nancy Heller, Town Director of Human Resources Sandra DeBow, and Town Counsel Joslin Murphy in their individual capacities (collectively, the individual defendants).
Alston incorporated by reference his opposition to the individual defendants' earlier motion to dismiss (# 40), see # 133 at 6, and the court has reviewed that document in analyzing the pending motion.
Although the case is only at the motion to dismiss stage, a substantial history exists. All that need be said here is that the present motion concerns the now-operative third amended complaint. For details concerning the procedural history of the case, see the court's Report and Recommendation on the Town defendants' motion to dismiss, docketed on February 6, 2018.
See # 72 (Report and Recommendation on previous motions to dismiss) and the Report and Recommendation on Town defendants' motion to dismiss.
Alston's third amended complaint is full of references to actions taken by "the Town" or "the Board of Selectmen" without attributing those actions to any particular individuals. In the section of the complaint entitled "Claims Against Individual Selectmen," however, he specifies which selectmen performed certain actions. (# 108 ¶¶ 151-59.) Even though the Board members had different tenures, Alston makes claims against each of them sufficient to withstand this motion to dismiss. See, e.g., id. ¶ 158 (Board members Daly, Wishinsky, Heller, Greene and Franco decided to terminate Alston), ¶¶ 152-53 (Board members DeWitt, Goldstein, and Mermell decided to give Pender "grossly insufficient discipline for racist and retaliatory conduct"). Alston also makes sufficient specific claims against Town Counsel and the Director of Human Resources, see id. ¶¶ 160-68 ("Claims Against Town Counsel") and ¶¶ 169-79 ("Claims Against the Human Resources Director"). See Ocasio-Hernandez v. Fortuno-Burset ,
Each year from 2010 to 2014, the Director of Human Resources prepared reports for the Board relating to Alston. (# 108 ¶ 32t.) These "reports were used as the basis for opinions by the Town's psychiatrists regarding Mr. Alston's fitness for duty in 2014 and 2015, by an outside consultant regarding the propriety of the Town's response to Mr. Alston's complaint in 2015, and by an outside hearing officer hired to recommend Mr. Alston's termination as a Brookline firefighter in 2016."
Mr. Lampke presumably is the outside hearing officer referenced in # 108 ¶ 63.
In deciding this issue the court considers documents attached to the pleadings from the prior state court case as they are matters of public record and are appropriate for consideration on a motion to dismiss. See Giragosian v. Ryan ,
This case concerns claim preclusion, not issue preclusion, which is a separate doctrine that has different elements. See Heacock v. Heacock ,
The individual defendants argue that they may raise the defense of claim preclusion "under the doctrine of non-mutual claim preclusion" as set out in In re El San Juan Hotel Corp. ,
The Town's memorandum only obliquely states this point. See # 111 at 1-2. At oral argument on January 5th counsel affirmed that this is the Town's position.
Alston could have brought federal constitutional claims in the Norfolk Superior Court action. See Roy v. City of Augusta ,
Defendants argue only that Alston's initial complaint, filed in December 2015, is time-barred. (# 122 at 23.) They do not make any argument concerning the statute of limitations with regard to particular defendants who were added in subsequent amended complaints, nor do they argue that claims in the present third amended complaint are time-barred. Therefore the court will analyze their argument solely with regard to the initial complaint.
"A 'continuing violation' however, is not a theory of recovery; it is a theory under which a limitations period may be extended. The 'continuing violation' doctrine is an equitable exception that saves otherwise time-barred claims if they are based on an ongoing series of acts anchored by similarity to some violation that is not time-barred." Bolduc v. Town of Webster ,
Plaintiff, demonstrating the baffling inattention to legal analysis that he has throughout this litigation, opposes the argument in one sentence, without citing to anything: "And legislative immunity does not apply because none of the defendants are legislators." (# 40 at 36.)
In a separate Report and Recommendation on the Town's motion to dismiss (# 110), docketed on February 6, 2018, this court recommended that some of the allegations in the third amended complaint having do to with decisions of the Board concerning policy be dismissed on other grounds.
As previously mentioned, at the hearing on January 5th, the Town defendants informed the court that they joined in the individual defendants' motion to dismiss regarding certain issues, including for failure to state a claim. The Town defendants are charged in Count I with, among other things, violating Alston's Fourteenth Amendment guarantee of equal protection. The individual defendants are not charged with this. Compare # 108 ¶ 193 with ¶¶ 199-202. The court will not rule on whether the equal protection claim is adequately pled in the absence of any written argument by the Town defendants.
If Alston is able to prove these elements, then defendants may avoid liability only by proving by a preponderance of the evidence that they would have taken the same action "even in the absence of the protected conduct." Mt. Healthy, 429 U.S. at 287,
While Alston has not pled that he was contractually employed, and defendants have not raised the issue, it appears that § 1981 also applies to employees at will:
The court of appeals for this circuit has yet to address this issue. However, the great weight of authority from other circuit courts of appeals supports the view that employees at will can avail themselves of the protections afforded by section 1981.... And, at least one district court in this circuit shares the view that an employee at will may pursue claims against his or her former employer under section 1981. See Joseph v. Wentworth Institute of Technology ,120 F.Supp.2d 134 , 144 (D. Mass. 2000).
Hill v. Textron Auto. Interiors, Inc. , No. CIV. 00-221-M,
Although the court finds that Alston has pled a viable claim under § 1981, there is a question whether this claim should be dismissed for other reasons. In Jett v. Dallas Independent School District ,
Mass. Gen. Laws ch. 41, § 111F provides that when a firefighter is incapacitated for duty because of an injury sustained in the performance of his duty without fault of his own, "he shall be granted leave without loss of pay for the period of such incapacity...."
Reference
- Full Case Name
- Gerald ALSTON v. TOWN OF BROOKLINE, MASSACHUSETTS, Brookline Board of Selectmen, Betsy Dewitt, Kenneth Goldstein, Nancy Daly, Jesse Mermell, Neil Wishinsky, Bernard Greene, Ben Franco, Nancy Heller, Sandra Debow, Joslin Murphy, each of them in his or her individual and official capacity, and Local 950, International Association of Firefighters
- Cited By
- 8 cases
- Status
- Published