United States District Court, D. Massachusetts
[Copyrighted Material Omitted]
For Ken Williams, Plaintiff: John J. Hightower, LEAD ATTORNEY, Randolph, MA.
For City of Brockton, Emanuel Gomes, In his Individual and Official Capacity as Interim Chief of the Brockton Police Department, William K Conlon, In this Individual and Official Capacity as Former Chief of the Brockton Police Department, Defendants: Stephen C. Pfaff, Louison, Costello, Condon & Pfaff, LLP, Boston, MA.
Lon Elliott, In his Individual and Official Capacity as Brockton Police Officer, Defendant, Pro se Abington, MA.
For William Farmer, In his Individual and Official Capacity as a Member of the Brockton Retirement Board, William E Parlow, In this Individual and Official Capacity as a Member of the Brockton Retirement Board, Matthew J McLaughlin, In his Individual and Official Capacity as a Member of the Brockton Retirement Board, Edward P Mack, In his Individual and Official Capacity as a Member of the Brockton Retirement Board, Heidi Chuckran, In his Individual and Official Capacity as a Member of the Brockton Retirement Board, Brockton Retirement Board, Defendants: Gregory F. Galvin, Weymouth, MA.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND ON PLAINTIFF'S MOTION TO STRIKE
Judith Gail Dein, United States Magistrate Judge.
The plaintiff, Ken Williams (" Williams" ), is a former officer in the Brockton, Massachusetts Police Department (" BPD" ). He has brought this civil rights action against the City of Brockton (" City" or " Brockton" ), four present and/or former officers of the BPD, the Brockton Retirement Board, and five individual members of the Retirement Board (collectively, the " Retirement Board Defendants" ). Williams alleges, in essence, that the defendants engaged in a pattern of retaliation against him after he advised an African-American businessman to file a complaint with the Internal Affairs Division of the BPD accusing one of Williams' fellow police officers, defendant Lon Elliott, with false arrest and racially offensive conduct. Williams also alleges that the City and the four defendant police officers (collectively, the " Police Defendants" ) discriminated against him after he became disabled with post-traumatic stress disorder (" PTSD" ). By his Complaint, Williams has asserted claims against all of the defendants, pursuant to 42 U.S.C. § § 1983 and 1988, for violations of his constitutional rights and for payment of attorney's fees incurred by Williams as a result of those violations. (Counts I, III and IV). He has also asserted claims against the four individual police officers for depriving him of his rights under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (" ADA" ) (Count II). Each of the individual defendants has been named in both his official and individual capacities.
The matter is before the court on the " Defendants City of Brockton, William Conlon, Emmanuel Gomes and Brian Leary's Motion for Summary Judgment" (Docket No. 119) and on the " Motion for Summary Judgment of the Defendants,
Brockton Retirement Board, William R. Farmer, William E. Parlow, Matthew J. McLaughlin, Edward P. Mack & Heidi A. Chuckran" (Docket No. 123). By their motions, the defendants contend that there are no material facts in dispute, and that they are entitled to judgment as a matter of law on all of Williams' claims against them. The matter is also before the court on the plaintiff's " Motion to Strike Celotex Argument from the City's Summary Judgment Motion" (Docket No. 133), by which Williams requests that the court: " (1) limit the City's argument regarding the First Amendment and ADA claims to the issue of statute of limitations; (2) . . . limit the City's 1983 argument to whether the City violated clearly established law; and (3) . . . limit the City's argument regarding municipal [liability] to whether Williams' custom, practice, or policy claims are time barred." For all the reasons described below, the plaintiff's motion to strike is DENIED, the Retirement Board Defendants' motion for summary judgment is ALLOWED, and the Police Defendants' motion for summary judgment is ALLOWED IN PART and DENIED IN PART. The matter shall proceed to trial on the plaintiff's claims against the Police Defendants under 42 U.S.C. § 1983 (" Section 1983" ), to the extent they are premised upon the denial of Williams' 2010 request for injured on duty leave and the events surrounding his retirement from the BPD.
II. STATEMENT OF FACTS
In ruling on a motion for summary judgment, the facts must be viewed in the light most favorable to the non-moving party. See Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008). Accordingly, the following facts are relevant to the defendants' motions for summary judgment.
The plaintiff, Williams, was employed as a police officer in the BPD from approximately October 1995 until his retirement on November 12, 2010. (Compl. (Docket No. 1) ¶ 16; PD SOF ¶ 6; PRPD ¶ 6). He initially performed work as a patrol-man, but was later promoted to the position of Generalist Detective. (PD Ex. B at 8). Williams, who is African-American, claims that during his tenure as a police officer, he was one of only a handful of minority officers who were employed by the BPD. (Compl. ¶ 17). The record indicates that the plaintiff performed well in his job, even earning an award as a " Top Cop" in the spring of 2009. (See Pl. Supp. SOF ¶ 44, 58; Pl. Ex. 35).
The Arrest of Jose Semedo
As indicated above, Williams' claims in this action arise out of events that occurred following the arrest of an African American businessman named Jose Semedo (" Semedo" ). Semedo was arrested on a warrant by officers from the BPD on November 20, 2007. (PD SOF ¶ 3(b); Pl. Ex. H ¶ III(1)). One of those officers was defendant Elliott, who was then a Sergeant with the BPD. (Pl. Ex. H ¶ III(1)). During the arrest, Semedo attempted to convince Elliott that the warrant had been recalled, but his efforts were unavailing. (Pl. Ex. C at 4). Elliott not only refused to confirm that the warrant remained outstanding, but he also made racially offensive remarks to Semedo, and mocked Semedo using racially offensive gestures. (Pl. Ex. H ¶ III(11) & (15)).
Following an appearance in and subsequent release from court on November 20, 2007, Semedo went to the bus station where Williams happened to be working a police detail. (Pl. Ex. 15 at 36-38; PD SOF ¶ 3(c); PRPD ¶ 3(c)). Semedo approached Williams and entered into a discussion with the plaintiff in which Semedo recounted details of his arrest, including Elliott's racist comments. (Pl. Ex. 15 at 37-38). Williams advised Semedo to file a complaint with the BPD. (Id.; see also PRPD ¶ 3(e)). Accordingly, Semedo submitted a letter to the Internal Affairs Division of the BPD in which he described the circumstances of his arrest, including the manner in which Elliott had treated him during the course of the incident. (Pl. Ex. C at 4-5).
In January 2008, the Internal Affairs Division launched an investigation into Semedo's complaint against Elliott. (Pl. Supp. SOF ¶ 12; Pl. Ex. C at 8-13). The investigation included, but was not limited to, interviews with Elliott and witnesses to the incident, the submission of written reports by officers who took part in Semedo's arrest, and a search for documentation regarding the status of any warrants relating to Semedo. (See Pl. Ex. C). The plaintiff claims that by July 2008, Elliott and other members of the BPD had learned about Williams' role in advising Semedo to report the offending conduct. (See Compl. ¶ ¶ 32-33). It is Williams' contention that the BPD originally tried to cover up the facts relating to Semedo's arrest. (See Pl. Opp. Mem. (Docket No. 140) at 6-7). Eventually, however, Elliott's employment with the BPD was terminated.
Denial of Williams' 2008 Injured on Duty Claim
Williams contends that the Police Defendants harassed him and took adverse actions against him in retaliation for his involvement in the Semedo matter. (See Compl. ¶ ¶ 35-41). The first such alleged incident occurred in the summer of 2008, after Williams was injured on duty. Specifically, the record demonstrates that on July 12, 2008, Williams suffered a blood exposure injury in the course of performing his duties as a police officer, and had to remain out of work for a number of weeks. (Pl. Ex. U at 12; Pl. Ex. 14 at 90-91; PD Ex. B at 9).
According to Williams, Elliott was responsible for submitting the plaintiff's claim for injured on duty (" IOD" ) leave to City Hall so that Williams could receive workers' compensation. (Pl. Ex. 14 at 90-92; PRPD ¶ 3(h)). However, when Williams returned to work in August 2008, he discovered that Elliott had failed to submit the necessary paperwork. (Pl. Ex. 14 at 92; PD Ex. B at 9). As a result of Elliott's conduct, Williams was not credited for sick time while he was away from work, and was reprimanded by his Operations Bureau Commander for abusing his sick leave. (PD Ex. B at 9; Pl. Ex. U at 2, 13). Although the plaintiff's 2008 claim for IOD leave was ultimately submitted by another officer, Williams claims that Elliot's failure to file the paperwork in a timely manner was due to the plaintiff's communications with Semedo, including his effort to encourage Semedo to file a complaint with the BPD, and that Elliott's conduct thereby constituted unlawful retaliation for Williams' exercise of his right to free speech. (See Pl. Ex. 14 at 92-95; Compl. ¶ ¶ 36, 41 & Count I).
In about October 2008, Williams received a summons to appear and testify at a disciplinary hearing regarding Elliott's conduct toward Semedo. (PD Ex. B at 9-10). Prior to the hearing, Williams encountered one of the Police Defendants, Emanuel Gomes, in the hallway outside the hearing room. (Pl. Ex. 14 at 99-100). According to Williams, Gomes attempted to discourage him from testifying adversely against Elliott. (Id.; Pl. Supp. SOF ¶ 21). However, Williams declined to follow Gomes' advice, and provided testimony and information that was damaging to Elliott. (PD SOF ¶ 3(i); PRPD ¶ 3(i)). Both Elliott and the Chief of the BPD, defendant William K. Conlon, were among the individuals who were present at the hearing. (PRPD ¶ 3(i)). Consequently, they were able to hear Williams' testimony against Elliott. (See id.).
On December 18, 2008, Williams received notice that the City had denied his IOD claim relating to the blood exposure injury because Williams' attending physician had indicated that Williams could return to work. (Pl. Ex. U at 2, 6). The plaintiff disputed the denial, which was upheld by the City on February 25, 2009. (Id. at 11). Notwithstanding the stated reason for the denial, Williams asserts that the City's decision was based on his testimony at Elliott's disciplinary hearing, and that the City violated his constitutional rights by retaliating against him for engaging in protected speech. (See Pl. Ex. 14 at 94-95; PD Ex. B at 10-11; Compl. ¶ ¶ 59, 62-63).
Williams subsequently filed a grievance against the City concerning the denial of his IOD claim, and a hearing took place before a Grievance Hearing Officer. (See Pl. Ex. R). On April 7, 2009, the Hearing Officer issued a decision in which she found that the plaintiff's IOD status should be allowed. (Id.). Consequently, Williams was ultimately granted IOD leave in connection with the blood exposure injury. (Pl. Ex. 14 at 92-93).
In January 2009, Elliott was terminated from his employment with the BPD. (PD Ex. B at 10). However, Williams claims that the defendants continued to engage in adverse actions against him. In particular, Williams contends that the Police Defendants improperly denied an IOD claim that he filed in 2010. (See Pl. Supp. SOF ¶ ¶ 32-33). He further contends that the City and the Retirement Board conspired to force him into an early retirement. (See id. ¶ 38; Pl. SOF ¶ 14). The facts relevant to these claims are as follows.
Denial of Williams' 2010 Injured on Duty Claim
During the time period from January 7, 2010 through April 5, 2010, Williams was out of work on leave pursuant to the Family Medical Leave Act for reasons unrelated to any issues in this case. (PD SOF ¶ 4; PRPD ¶ 4; PD Ex. C). The plaintiff claims at some point during his leave, he became disabled due to symptoms resulting from work-related PTSD. (See PD Ex. B at 11; PRPD ¶ 4; PD Ex. C). On April 23, 2010, not long after he had returned to work, Williams met with defendant William Parlow, a member of the Retirement Board, and Bill Healy (" Healy" ), the president of the Brockton Police Patrolman's Association (" Union" ), in a back room at the French Club and discussed his PTSD diagnosis. (PRRB ¶ 2; Pl. Ex. 14 at 563; Pl. Ex. 32 at 19-20). During the conversation, Williams informed Parlow and Healy that he intended to apply for IOD leave based on his mental condition. (See Pl. Ex. 14 at 563-64). According to the plaintiff, Parlow responded by telling the plaintiff that any such claim would be denied. (Id. at 445-46, 516-17, 563-64). He also urged Williams to return to work and wait until he had signs of a physical injury before filing an IOD claim. (Id. at 516-17). Williams asserts that Parlow was speaking on behalf of the Retirement Board as a whole and that his statements were indicative of " the influence that the [Retirement Board] has over denying officer PTSD injured on duty claims." (Pl. Opp. to BRB (Docket No. 137) at 8-9). He also argues that Parlow's statements illustrate the Retirement Board's " custom, policy, or practice of discouraging PTSD injured on duty claims." (Id. at 9). As detailed below, however, this court finds that even assuming that Parlow was speaking on behalf of the Retirement Board, the record is insufficient to support Williams' claims against Parlow or the Retirement Board.
Williams declined to accept Parlow's advice, and later that day, on April 23, 2010, he filed a claim for IOD leave based on his PTSD. (PRPD ¶ 4; Pl. Ex. 14 at 448). The undisputed facts establish that at the time Williams submitted his claim, the City's practice was to deny all such claims initially so that the matter could be further investigated. (Pl. Supp. SOF ¶ 26; Pl. Ex. 16 at 76-79; Pl. Ex. 21 at 77-78). Accordingly, Williams' claim was denied on May 11, 2010. (Pl. Ex. S at 2). It was denied again on May 21, 2010, after the City had an opportunity to review additional information. (Id. at 1). Williams claims that the denial violated his rights under the Constitution and constituted an act of discrimination under the ADA. (See Compl. at Counts I & II).
At the time it denied Williams' claim, the City was in possession of a report from Frederick J. Welsh, LMHC, a psychologist who had met with Williams based on a referral from the BPD's Stress Officer. (Pl. Supp. SOF ¶ 33; Pl. Ex. 3). In his report, Mr. Welsh confirmed Williams' diagnosis of PTSD. (Pl. Ex. 3). He also noted that the plaintiff suffered from hypertension and work-related issues, and opined that the plaintiff had a Global Assessment of Functioning score of 55. (Pl. Ex. 3). However, in denying Williams' claim, the City did not describe why it had failed to credit Mr. Welsh's opinion, and it
provided no explanation for its decision. (See Pl. Ex. S).
The Union filed a grievance on Williams' behalf challenging the City's denial of his 2010 IOD claim. (Pl. Ex. Q at 7-8). A hearing on the grievance was held before a hearing officer designated by the Mayor. (Id.). During the hearing, the parties submitted numerous documents, including but not limited to, the letter from Mr. Welsh. (Id. at 7). After consideration of the parties' positions and the available evidence, the hearing officer found that " the City was not provided sufficient medical documentation indicating that a reoccurring injury was sustained in the performance of Officer Ken Williams' duties as a Police Officer[,]" or " that any injury [was] casually (sic) related to his duties as a Police Officer." (Id. at 8). Therefore, she denied the Union's grievance and upheld the City's determination that Williams was not entitled to IOD leave. (Id.). As detailed below, this denial was subsequently affirmed by an independent arbitrator, and the plaintiff is not challenging the merits of the arbitrator's decision.
Williams' Retirement From the BPDW
The record establishes that when a BPD officer uses up all of his sick time, vacation time and personnel time, but is unable to work due to injury, the officer becomes subject to termination on the grounds that he had abandoned his post. (Pl. Supp. SOF ¶ 28). After his 2010 IOD claim was denied, Williams believed he had only two options that would enable him to avoid termination -- quitting the police force or applying for accidental disability retirement. (Pl. Ex. 14 at 517). Following a consultation with his wife, Williams determined that he should opt for retirement. (Id. at 518). Thus, in May 2010, while continuing to challenge the denial of his IOD leave, he submitted an application for accidental disability retirement to the Retirement Board. Therein, he claimed disability due to hypertension resulting from his job as a police officer. (See RB SOF ¶ 4; PRRB ¶ 4; Pl. SOF ¶ 24; PD Ex. C).
The process for obtaining accidental disability retirement is governed by 840 C.M.R. § 10.00. (RB Ex. 7 ¶ 2). Pursuant to the regulatory procedures established thereunder, an applicant for such retirement must appear before the Retirement Board. (Id.). If the Retirement Board accepts the applicant's written application, it is forwarded to the Public Employee Retirement Association Commission (" PERAC" ), which sets up a medical panel to examine the applicant and generate a report. (Id.). The report is then sent to the Retirement Board, along with certain medical panel certificates, for consideration and approval by the Board. (Id.). Once the Retirement Board approves the medical panel certificates, it notifies PERAC and awaits PERAC's approval. (Id.). After receipt of that approval, a retirement date is established with the assistance of the applicant's ...