United States District Court, D. Massachusetts
GERALD A. DACOSTA, Plaintiff,
TOWN OF PLYMOUTH, Defendant.
MEMORANDUM AND ORDER RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 33); DEFENDANT'S MOTION TO STRIKE (DOCKET ENTRY # 45)
MARIANNE B. BOWLER, Magistrate Judge.
Pending before this court is a motion for summary judgment (Docket Entry # 33) filed by defendant Town of Plymouth ("the Town"). Plaintiff Gerald A. DaCosta ("DaCosta") opposes the motion. (Docket Entry # 40). Also pending is a motion to strike portions of an affidavit of DaCosta and an affidavit of Dale Webber ("Webber") (Docket Entry # 45) which DaCosta opposes (Docket Entry # 51). After conducting a hearing on January 23, 2014, this court took the motions (Docket Entry ## 33 & 45) under advisement.
The parties' dispute arises out of DaCosta's employment with the Town. The five count verified complaint sets out the following causes of action: (1) violation of DaCosta's right to equal protection under the Fourteenth Amendment in violation of 42 U.S.C. § 1983 ("section 1983") (Count I); (2) breach of contract (Count II); (3) breach of the implied covenant of good faith and fair dealing (Count III); (4) violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000-e ("Title VII" or "section 2000-e"), and Massachusetts General Laws chapter 151B ("chapter 151B") (Docket Entry # 1, ¶¶ 5, 55, 58) based on disability and national origin discrimination, the Age Discrimination in Employment Act, 29 U.S.C. § 621. ("ADEA" or "section 621") and chapter 151B based on age discrimination (Count IV); and (5) intentional infliction of emotional distress (Count V). (Docket Entry # 1).
Although debatable, this court interprets Count IV as also raising hostile work environment claims. (Docket Entry # 1, ¶¶ 22, 30, 40, 42, 47 & 55); see Gorski v. New Hampshire Dept. of Corrections , 290 F.3d 466, 470 (1st Cir. 2002) (construing amended complaint as raising hostile work environment claim). The complaint sets out a series of events and disparate treatment transpiring over a five year period from 2006 to 2011. In paragraph 40, which paragraph 55 incorporates into Count IV, the complaint alleges that, "all of the events are linked as a continual course of intentional harassment over said period... creating a hostile work environment." (Docket Entry # 1, ¶¶ 40, 55). Elsewhere, the complaint refers to "an on going pattern, based upon his age, medical condition" and "national origin (Bermudian) in an attempt to get him to quit" thus "creating a hostile work environment." (Docket Entry # 1, ¶¶ 22, 55). The complaint also describes the misconduct as "harassment, as part of a pattern due to Plaintiff's age, diabetic condition, and national origin." (Docket Entry # 1, ¶¶ 30, 55). Additional language includes "a hostile environment, " "harass, " "a hostile and abusive employment environment, " "harassment" and "a pattern of behavior." (Docket Entry # 1, ¶¶ 37, 42, 47, 51, 55). Count IV therefore sets out not only discrete employment discrimination claims but also hostile work environment claims. See id. at 469-470.
The summary judgment motion seeks dismissal of all five counts. (Docket Entry # 33). In response to the motion, DaCosta "stipulates to the dismissal of Counts II, III, and V" of the complaint. (Docket Entry # 40). The motion therefore reduces to the merits of summary judgment as to the claims in counts I and IV.
STANDARD OF REVIEW
Summary judgment is designed "to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.'" Dávila v. Corporación De Puerto Rico Para La Difusión Pública , 498 F.3d 9, 12 (1st Cir. 2007). It is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). It is inappropriate "if the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side." Pierce v. Cotuit Fire District , 741 F.3d 295, 301 (1st Cir. 2014); see also Caban-Rodriguez v. Jimenez-Perez, 2014 WL 959489, at *1 (1st Cir. March 12, 2014) (applying "the same legal standard as the district court" when reviewing summary judgment).
"Genuine issues of fact are those that a factfinder could resolve in favor of the nonmovant, while material facts are those whose existence or nonexistence has the potential to change the outcome of the suit.'" Green Mountain Realty Corp. v. Leonard, 2014 WL 1613704, at *6 (April 23, 2014). The evidence is viewed "in the light most favorable to the nonmoving party" and "all reasonable inferences" are drawn in his favor. Ahmed v. Johnson, 2014 WL 2111236, at *3 (1st Cir. May 21, 2014). Where, as here, the nonmovant bears the burden of proof at trial, he "must point to facts memorialized by materials of evidentiary quality and reasonable inferences therefore to forestall the entry of summary judgment." Geshke v. Crocs, Inc. , 740 F.3d 74, 77 (1st Cir. 2014); see Woodward v. Emulex Corp. , 714 F.3d 632, 637 (1st Cir. 2013) (as to issues on which nonmovant bears burden of proof, he must "demonstrate that a trier of fact reasonably could find in his favor'").
In reviewing a summary judgment motion, a court may examine "all of the record materials on file, " Geshke v. Crocs, Inc. , 740 F.3d at 77, "including depositions, documents, electronically stored information, affidavits or declarations... or other material." Fed.R.Civ.P. 56(c) (1). "Unsupported allegations and speculation" however "do not demonstrate either entitlement to summary judgment or the existence of a genuine issue of material fact sufficient to defeat summary judgment." Rivera-Colon v. Mills , 635 F.3d 9, 12 (1st Cir. 2011); see Serra v. Quantum Servicing, Corp., 747 F.3d 37, 40 (1st Cir. 2014) ("allegations of a merely speculative or conclusory nature are rightly disregarded").
The Town submits a statement of undisputed facts under LR. 56.1. (Docket Entry # 35). DaCosta responds to the LR. 56.1 statement and admits a number of the undisputed facts. Uncontroverted statements of fact in a LR. 56.1 statement comprise part of the summary judgment record. See Cochran v. Quest Software, Inc. , 328 F.3d 1, 12 (1st Cir. 2003); Stonkus v. City of Brockton School Department , 322 F.3d 97, 102 (1st Cir. 2003).
In addition, where, as here, a complaint is verified, it is appropriate to consider factual averments based on personal knowledge as the equivalent of an affidavit for purposes of summary judgment. Sheinkopf v. Stone , 927 F.2d 1259, 1262-1263 (1st Cir. 1991). Conclusory allegations, however, "do not pass muster, and hence, must be disregarded." Id . at 1262. Likewise, "an affidavit... made upon information and belief.. does not comply with Rule 56(e).'" Id . at 1271.
I. MOTION TO STRIKE
The Town moves to strike DaCosta's (Docket Entry # 40-1) and Webber's (Docket Entry # 40-3) affidavits. It submits that the affidavits: (1) are improperly premised on information and belief; and (2) contain speculative, conclusory or hearsay statements. The Town additionally maintains that DaCosta's affidavit contradicts a number of prior sworn statements in his deposition. Insofar as statements in the verified complaint mirror statements in DaCosta's affidavit, the Town also seeks to strike the corresponding statements in the verified complaint which, as noted above, is the equivalent of an affidavit for purposes of summary judgment.
A. Statements Premised on Belief
The Town contends that DaCosta's statements are not based on the "personal knowledge" mandate of Fed.R.Civ.P. 56(c)(4) ("Rule 56(c)(4)") and are therefore hearsay. Under Rule 56(c)(4), "An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4); Kenney v. Floyd , 700 F.3d 604, 609 (1th Cir. 2012); Sheinkopf v. Stone , 927 F.2d at 1271 (affidavits based upon "information and belief" do not comply with Rule 56).
Reviewing the challenged statements under this standard, the following statements in DaCosta's affidavit are stricken: (1) the third sentence of the second paragraph in paragraph one; (2) the third sentence of the final paragraph in paragraph one; and (3) the first and second sentences of the second paragraph in paragraph ten.
B. Conclusory or Hearsay Statements
The Town next argues that DaCosta's affidavit contains legal arguments and conclusory assertions and that Webber's affidavit contains arguments, conclusory assertions and hearsay assertions. DaCosta submits that the statements in Webber's affidavit are based on his "personal observations as a long time union official in the Town of Plymouth" and are "based upon his [own] personal knowledge." (Docket Entry # 51). "Unsupported, subjective, conclusory, or imaginative" statements made within a summary judgment affidavit are not part of the summary judgment record. Torrech-Hernandez v. General Elec. Co. , 519 F.3d 41, 47 (1st Cir. 2008) (statements that "amount to nothing more than self-serving, factually devoid declarations" are not given any weight). It is also "black-letter law that hearsay evidence cannot be considered on summary judgment for the truth of the matter asserted." Kenney v. Floyd , 700 F.3d at 609 (internal quotations omitted).
The following statements in DaCosta's affidavit constitute legal arguments or conclusory assertions: (1) the entire third paragraph in paragraph one; (2) the fourth sentence of the first paragraph in paragraph two; (3) the first,  second and fourth sentences of the final paragraph in paragraph three; (4) the clause in the final sentence of paragraph four that reads, "due to [DaCosta's] medical condition"; (5) the third sentence of the final paragraph in paragraph five; (6) the final sentence in paragraph six; (7) the last clause in the last sentence in paragraph seven; (8) the fifth and sixth sentences of the first paragraph in paragraph eight; (9) the last sentence of the second paragraph in paragraph eight; (10) the first clause of the first sentence and the final sentence of the third paragraph in paragraph eight; (11) the third, fourth and fifth sentences in paragraph nine; (12) the statement in the first sentence of the first paragraph in paragraph ten that reads, "Another incident of dissimilar and malicious treatment"; (13) the statement in the second sentence that reads, "since there wasn't any proof to back the alleged claims made against the Plaintiff, " and the fourth sentence of the third paragraph in paragraph ten; (14) the final paragraph in paragraph ten except for the last clause in the final sentence; and (15) the fourth and fifth sentences of the final paragraph in paragraph 12.
Turning to Webber's affidavit (Docket Entry # 40-3), he attests that:
In some instances, the files I possess, the issues that were told to me by those filing them (since deceased) and the cases they represent show a pattern that any reasonable person could conclude that the Plaintiff, (sic) management targeted DaCosta by unfairly harassing him regarding work assignments and even unfair discipline based upon groundless claims.
(Docket Entry # 40-3, ¶ 5). Although Webber also attests that the contents of the affidavit are based on "his own personal knowledge, " there are no facts to support his involvement as a fact witness in the incidents that DaCosta experienced from 2006 to 2011. See Livick v. The Gillette Co. , 524 F.3d 24, 28 (1st Cir. 2008) ("requisite personal knowledge' needed for a summary judgment affidavit must concern facts as opposed to conclusions, assumptions or surmise'"). "[T]he issues that were told to" Webber constitute inadmissible hearsay. See Bhatti v. Trustees of Boston University , 659 F.3d 64, 71 (1st Cir. 2011) (Bhatti's recitation of coworkers' out-of-court statements about scheduling disparities in employment discrimination case is "inadmissible hearsay").
The following statements in Webber's affidavit are based on information or belief or constitute legal argument, conclusory assertions or hearsay: (1) the clause in paragraph two that reads, "the treatment [DaCosta] was subjected to by [the Town] leading to his filing of the complaint"; (2) paragraph three; (3) paragraph four; (4) paragraph five; (5) paragraph six except for the first clause of the first sentence; (6) paragraph seven; and (7) the clause in paragraph eight stating the "pattern of harassing tactics and adverse employment actions regarding [Town] employees who were subjected to such treatment." (Docket Entry # 40-3, ¶ 8).
C. Statements Contradicting Prior Testimony
The Town next argues that paragraphs one, three, four and ten in DaCosta's affidavit contain statements that contradict his prior deposition testimony. It is not necessary to strike the challenged portion of paragraphs one, three and four because their inclusion in the record would not alter the result. As discussed infra, the 2006 and July 2009 incidents are untimely.
The challenged statement in paragraph four does not contradict the identified statements in DaCosta's deposition. The averment in paragraph ten regarding the "harassment" being part of an "ongoing pattern, based upon his age, medical condition, " diabetes and national origin directly contradicts the cited deposition testimony and is therefore stricken. See Orta-Castro v. Merck, Sharp & Dohme Quimica P.R., Inc. , 447 F.3d 105, 110 (1st Cir. 2006) (if party's affidavit directly contradicts that party's deposition testimony, the court shall disregard the affidavit unless the party can offer a "satisfactory explanation").
II. MOTION FOR SUMMARY JUDGMENT
On July 14, 2010, DaCosta filed a complaint with the Massachusetts Commission Against Discrimination ("MCAD") and the U.S. Equal Employment Opportunity Commission ("EEOC"). (Docket Entry # 1, ¶ 3) (Docket Entry # 35, ¶ 68) (Docket Entry # 53, ¶ 68). On January 31, 2011, he withdrew the charges and filed this action against the Town. (Docket Entry # 1, ¶ 4) (Docket Entry # 35, ¶ 69) (Docket Entry # 53, ¶ 69).
DaCosta was born in 1953 in Bermuda and, at all relevant times, his citizenship was Bermudian. (Docket Entry # 35, ¶ 20) (Docket Entry # 53, ¶ 20) (Docket Entry # 35-1, pp. 8, 66-67) (Docket Entry 40-1, ¶ 3(3), sent. 5) (Docket Entry # 1, ¶ 17, sent. 2). He "is one-half Portuguese and one-half Bermudian." (Docket Entry # 35, ¶ 20) (Docket Entry # 53, ¶ 20) ...