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Brothers v. Town of Millbury

United States District Court, D. Massachusetts

August 14, 2014

THE TOWN OF MILLBURY, E. BERNARD PLANTE, in his Personal and Official Capacities, RICHARD BATES, in his Personal and Official Capacities, EDWARD MCGINN, in his Personal and Official Capacities, Defendants.


TIMOTHY S. HILLMAN, District Judge.


Kimberly Brothers ("Brothers") brings suit against the Town of Millbury (the "Town"), E. Bernard Plante ("Plante"), Richard Bates ("Bates"), and Edward McGinn ("McGinn") (collectively "Defendants"). She alleges violations of 42 U.S.C. § 1983 for interference with her right to Procedural Due Process (Count I), Substantive Due Process (Count II), and Equal Protection (Count III), violations of the Massachusetts Civil Rights Act (Count IV), Civil Conspiracy (Count VII), Intentional Infliction of Emotional Distress (Count VIII), Interference with Advantageous Relations (Count X), and Defamation (Count XIII) against all Defendants. Brothers also alleges Breach of Contract (Count V), Breach of the Implied Covenant of Good Faith and Fair Dealing (Count VI), Malicious Prosecution (Count IX), Wrongful Discharge in Violation of Public Policy (Count XI), and Negligent Hiring, Supervision, and Retention of Employees (Count XII) against the Town and Plante. Defendants have moved to dismiss all claims against them. For the reasons set forth below, those motions are granted in part and denied in part.


Brothers is a full-time police officer for the town of Millbury and is covered under the Millbury Police Association Collective Bargaining Agreement (CBA). Article VII of the CBA provides that police officers are not to be disciplined or discharged "except for just cause."

In April 2010, Brothers was assigned the position of Detective. While serving in that capacity, Brothers was assigned to investigate fellow officer Daniel Daly for misconduct. On two occasions Town Manager Robert Spain spoke to Brothers, warning her that some members of the Board of Selectmen did not like her, were out to get her, and that "Some people are better friends with the selectman than they are you."

In August 2011, Bates, a member of the Worcester Police Department Internal Affairs Unit, was hired to assist Brothers in her investigation. Bates is an attorney who has conducted over 200 internal investigations, and sits on the executive board of a national investigators association. Years earlier, Brothers took a graduate course taught by Bates. She complained to Bates and school officials about how he conducted the class and thereafter, Bates was not asked to return to teach.

Brothers alleges that Bates' investigation into Daly morphed into an investigation of her. The Town also hired McGinn, a Worcester Police Officer, to assist Bates with the investigation. On March 19, Bates scheduled an interview with Brothers. Brothers' attorney requested that Bates recuse himself due to the history between him and her. Bates denied there was a conflict and Town refused to recuse Bates.

During the investigation, Bates interviewed a number of police and civilian witnesses and subsequently destroyed the records of those interviews. He admitted that he did so without notifying any other official, but maintains that the records did not have any probative value. Brothers alleges that these records contained information capable of exonerating her of the false allegations.

The investigation into Brothers was completed in only sixteen days. In his final report, Bates found that Brothers had committed (1) untruthfulness in a police report, (2) untruthfulness in an affidavit, and (3) intimidated town residents. Bates also opined that many police departments terminate officers for such behavior because such finding "makes an officer damaged goods... [and] could jeopardize criminal cases, as well as... civil and disciplinary cases, where they must rely on that officer for corroboration." McGinn's separate report included only a single finding of harassing/intimidating town residents.

Thereafter, the Board of Selectmen voted to conduct a hearing to determine if Brothers should be terminated for (1) harassment of town residents and (2) excessive texting. Neither Bates nor McGinn included the excessive texting charge in their reports. The Town chose Attorney Janice Silverman to be the Hearing Officer. Silverman had previously worked as the head of Human Resources for the City of Worcester and knew Bates and the attorneys representing the Town. Silverman did not inform Brothers of this or offer to recuse herself.

Following the hearing, Silverman sustained both charges and recommended Brothers be terminated. The Town did not have a text message policy, and the Chief of Police testified that Brothers texted more than some, but less than other officers. This was the first time an officer had been disciplined for excessive texting. The Board of Selectmen, including Plante, a member of the Board, unanimously voted to terminate Brothers' employment.

Brothers felt publicly humiliated by her termination and became unable to support her family financially or emotionally. She could not contribute to her retirement or apply for promotional opportunities. Brothers appealed her termination to an independent arbitrator who held that Bates and McGinn's findings were replete with error and based on flawed testimony. The arbitrator also found that "McGinn's report exhibits an incorrect grasp of the facts, " and contained "misstatements [which] reflect[ed] the generally hasty and inadequate nature of the Town's investigation." The arbitrator reinstated Brothers without loss of seniority, rank, or benefits. He also awarded her back pay and other overtime opportunities. Since the ruling, Brothers has returned to work but had not, at the time she filed her complaint, been given her back pay.

Standard of Review

To survive a 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, a complaint must evince the requisite factual detail to establish a plausible claim that "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009). In other words, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679. In evaluating a motion to dismiss, the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Langadinos v. American Airlines, Inc., 199 F.3d 68, 68 (1st Cir. 2000). The court may consider "only facts and documents that are part of or incorporated into the complaint." Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008).


Count I: Procedural Due Process

Brothers claims she was improperly terminated and not afforded adequate procedural safeguards to remedy her violated rights. More specifically, that her initial hearing was not impartial, and that the post-termination process was constitutionally inadequate because it was not timely.

As with all claims brought under 42 U.S.C. § 1983, Brothers is required to show two elements: (1) the defendant must have acted under color of state law; and (2) the defendant's conduct must have deprived the Brothers of rights secured by the Constitution or by federal law. Rodríguez-Cirilo v. García, 115 F.3d 50, 52 (1st Cir. 1997). Section 1983 is generally inapplicable "unless a state actor's conduct occurs in the course of performing an actual or apparent duty of his office." Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995). Both of these requirements are met here, as Defendants conceded they were acting under color of state law, and Brothers was deprived of a protected property interest, her continued employment. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 539, 105 S.Ct. 1487, 1491 (1985) (holding that a public employee who could only be dismissed for cause had a property right in continued employment); Goss v. Lopez, 419 U.S. 565, 573 (1975) (finding that a state employee who is entitled to continued employment, absent just cause for discharge, may demand procedural safeguard of due process).

It is well-established that "[a]n essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case.'" Loudermill, 470 U.S. at 542 (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)). Furthermore, "[d]ue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Brothers was put on notice of the charges against her and she received two hearings, one pre-termination and one post-termination, where she was represented by counsel and given the opportunity to present evidence. Brothers alleges, however, the procedure she was given violated her due process rights because her initial hearing was not impartial, and her appeal was not timely, taking over a year.

Courts generally do not consider pre-termination and post-termination procedures in isolation, but rather review the process in totality. Senra v. Town of Smithfield, 715 F.3d 34, 39 (1st Cir. 2013); see Loudermill, 470 U.S. at 547, n. 12 (noting that post-termination procedures are relevant to the necessary scope of pre-termination procedures); Hadfield v. McDonough, 407 F.3d 11, 21 (1st Cir. 2005) (finding that post-deprivation remedy was sufficient to address "any pre-deprivation of process... caused by random and unauthorized conduct by defendants"); Cronin v. Town of Amesbury, 81 F.3d 257, 260 (1st Cir. 1996) (finding that MA statute, which allowed employee to appeal termination and retrieve back pay, was sufficient post-deprivation remedy); Perkins v. City of Attleboro, 969 F.Supp.2d 158, 176-77 (D. Mass. 2013) (dismissing procedural due process claim when plaintiff alleged those involved in the pre-termination hearing had improper motives, but did not allege those involved in a post-deprivation review were similarly improperly motivated.). Here, any inadequacy in the initial hearing was remedied by Brothers' opportunity for a second hearing.

"Courts have been reluctant to declare a tardy post-deprivation remedy inadequate except in extreme cases, in recognition of the regrettable fact that delay is a natural concomitant of our administrative bureaucracy.'" Cronin, 895 F.Supp. at 388 (quoting Isaacs v. Bowen, 865 F.2d 468, 477 (2nd Cir. 1989)). While it has been recognized that "[a]t some point, a delay in the post-termination hearing would become a constitutional violation, " courts have held that delays of post-termination appeals of up to two years do not violate due process. Loudermill, 470 U.S. at 547; see Mathews v. Eldridge, 424 U.S. 319, 342 (finding an 11-month delay in adjudicating post-termination appeal of disability benefits did not violate due process); Isaacs, 865 F.2d at 477 (19-month delay in adjudication of medical benefits appeal was not violation of due process); Frock v. United States Railroad Retirement Bd., 685 F.2d 1041, 1047 (7th Cir. 1982) (2-year delay in adjudicating appeal did not violate due process). Moreover, delays are more likely to be declared unconstitutional if the tardiness of adjudication causes "grievous loss, " such as putting the aggrieved party in a state of indigence. ...

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