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Pomponio v. Town Of Ashland

United States District Court, D. Massachusetts

February 5, 2016

EDWARD POMPONIO et al., Plaintiffs,
v.
TOWN OF ASHLAND, et al., Defendants.

MEMORANDUM & ORDER

INDIRA TALWANI UNITED STATES DISTRICT JUDGE

I. Introduction

Plaintiffs Edward Pomponio, a former employee of the Ashland Police Department, and his wife, Paula Pomponio, allege that the moving Defendants, all employees of the Ashland Police Department and members of the Ashland Police Association, harassed Pomponio, made defamatory statements about both Plaintiffs in a union complaint, and engaged in a concerted effort to have Edward Pomponio removed from the police department. Plaintiffs allege violations of 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act, as well as claims for intentional infliction of emotional distress, negligent infliction of emotional distress, defamation, tortious interference with contractual relations, battery, and loss of consortium.

Presently before the court are two motions for judgment on the pleadings: one brought by Defendants Richard Briggs, Gregory Fawkes, Robert MacQuarrie, Michael Dionne, and Allena Downey, who are named in all of these counts, [1] and one brought by Defendants Christopher Alberini and John Driscoll, who are named in some of the tort claims. [#23], [#26]. The moving Defendants are a lieutenant (Richard Briggs), sergeants (Gregory Fawkes and Robert MacQuarrie), a detective (John Driscoll) and officers (Christopher Alberini, Michael Dionne, and Allena Downey) (“Defendants” or “Moving Defendants”). For the following reasons, the motions are ALLOWED IN PART and DENIED IN PART.

II. Facts as Alleged in the First Amended Complaint

Edward Pomponio (“Pomponio”) began as a patrol officer for the Ashland Police Department in March 2008. First Am. Compl. ¶ 27. In 2008, Pomponio was disciplined for the accidental discharge of his firearm. Id. ¶ 28. He alleges that immediately following that discharge, and up to 2013, he was subjected to name calling, harassment, humiliation, emotional and physical distress from Defendants Richard Briggs, Michael Dionne, Gregory Fawkes, Christopher Alberini, Robert MacQuarrie, Luann Tomaso, and Allena Downey. Id. ¶ 29. He asserts further that Briggs, Fawkes, Alberini, MacQuarrie, Dionne, Downey, Tomaso, and Driscoll began calling him derogatory names, posting humiliating photographs around the station, and altering a department shooting trophy, and that harassment regarding the shooting continued up to 2013. Id. ¶¶ 30-31.

In December 2009, Pomponio filed a complaint against Downey for disrespectful conduct and untruthfulness. Id. ¶ 33. Pomponio alleges that as a result of filing this complaint, he was subjected to continuous harassment, humiliation, mental anguish and extreme emotional and physical distress by Briggs, Fawkes, Alberini, MacQuarrie, Dionne, and Downey that continued to 2013. Id. ¶ 34.

From 2008 to 2013, Pomponio filed several allegations of misconduct, including allegations of criminal activity of co-workers. Id. ¶ 35. Pomponio alleges that as a result of these complaints, he was subjected to harassment, ridicule, hostile work atmosphere, and name calling by many officers, including Briggs, Fawkes, Alberini, MacQuarrie, Dionne, Downey, and Tomaso that continued to 2013. Id. ¶ 36.

From 2008 to 2013, Fawkes, Alberini, and MacQuarrie subjected Pomponio to intimidation, fear of physical harm, harassment, name calling, and ridicule regarding his religious beliefs. Id. ¶¶ 86, 90. Alberini placed devil worship materials on Pomponio’s locker on multiple occasions between 2009 and 2013. Id. ¶ 87. The chief of police, Scott Rohmer, ordered Lieutenant Briggs to take corrective action but Briggs failed to do so. Id. ¶ 89.

In October 2011, Pomponio was appointed as provisional sergeant. Id. ¶¶ 40, 54. Alberini solicited officers to boycott Pomponio’s swearing in ceremony, causing him harassment, humiliation, mental anguish, and extreme emotional and physical distress. Id. ¶¶ 50-51, 64-65. Town Manager Petrin told Police Chief Rohmer that Pomponio was not liked by the Ashland Police Association membership. Id. ¶¶ 43, 57. Petrin refused to promote Pomponio to permanent Sergeant, allegedly as a result of false information that had been provided by Briggs, Dionne, MacQuarrie, and Fawkes. Id. ¶¶ 43, 49, 57, 63.

In December 2011, Pomponio reported sexual misconduct allegedly occurring within the police department. Id. ¶¶ 52, 66. As a result of reporting the sexual misconduct, Pomponio was allegedly subjected to harassment, name calling, isolation, humiliation, mental anguish, and extreme emotional and physical distress by Briggs, Fawkes, Alberini, MacQuarrie, Dionne, and Tomaso that continued up to 2013. Id. ¶ 68.

Fawkes, MacQuarrie, and Dionne subsequently filed a complaint (hereinafter the “Union Complaint”) on behalf of members of the Ashland Police Association. Id. ¶ 69; Union Compl.[2], [3] Fawkes drafted the Union Complaint and ten officers signed it. First Am. Compl. ¶¶ 75-76. Briggs, Fawkes, MacQuarrie, and Dionne provided the Union Complaint to Metrowest Daily News and the Union Complaint was subsequently published. Id. ¶ 73. Outside investigators later determined that the Union Complaint contained false and misrepresented facts and was “drafted in an effort to embarrass Pomponio and Chief Rohmer and force them to resign.” Id. ¶ 77. In January 2012, following the filing of the Union Complaint, Fawkes and Dionne informed Chief Rohmer that the complaint against Chief Rohmer would be withdrawn if the investigation regarding the sexual misconduct were terminated. Id. ¶ 78.

In February 2012, Pomponio reported to Chief Rohmer that several Ashland Police Officers had violated department rules and criminal laws and that certain investigation reports were removed. Id. ¶¶ 103, 105. As a result of this investigation, Pomponio allegedly was subjected repeated harassment, name calling, humiliation, mental anguish, and extreme emotional and physical distress from officers, including Briggs, Fawkes, MacQuarrie, Alberini and Dionne. Id. ¶ 107.

In March 2012, Pomponio attended a police association event to discuss a complaint filed against Fawkes. Id. ¶ 108. Fawkes approached Pomponio, who was reading that complaint, and forcefully removed it from Pomponio’s hands. Id. ¶ 109. Pomponio filed a complaint regarding the alleged assault and battery, and, as a result, was subjected to continuing harassment, name calling, isolation, and ridicule from Briggs, Fawkes, Alberini, MacQuarrie and Dionne. Id. ¶¶ 110, 111.

Fawkes and Dionne met with Ashland selectmen to attempt to convince them to remove Pomponio and Chief Rohmer from their positions. Id. ¶ 115. Fawkes told them that he, Dionne, and the Ashland Police Association had been working for nine months to oust Rohmer and Pomponio. Id. ¶ 117.

On February 28, 2014, Pomponio was notified that he was subject to a disciplinary hearing for destruction of drug evidence occurring in 2011 and for untruthfulness. Id. ¶ 125. Pomponio alleges that Defendants’ conduct caused his 2014 termination, and that other officers did not face the same discipline for similar conduct. Id. ¶¶ 126-27.

III. Discussion

A. Standard of Review

Where “a motion for judgment on the pleadings ‘is employed as a vehicle to test the plausibility of a complaint, it must be evaluated as if it were a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).’” Shay v. Walters, 702 F.3d 76, 82 (1st Cir. 2012). In evaluating a motion to dismiss, the court assumes “the truth of all well-pleaded facts” and draws “all reasonable inferences in the plaintiff’s favor.” Nisselson v. Lernout, 469 F.3d 143, 150 (1st Cir. 2006). To survive dismissal, a complaint must contain sufficient factual material “to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007)).

In deciding such a motion, a court is ordinarily limited to considering “only the complaint, documents attached to it, and documents expressly incorporated into it.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 72 (1st Cir. 2014). When, however, “a complaint’s factual allegations are expressly linked to-and admittedly dependent upon-a document (the authenticity of which is not challenged), that document effectively merges into the pleadings and the trial court can review it in ...


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