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Cummings v. City of Newton

United States District Court, D. Massachusetts

February 11, 2016




Matthew Cummings (“plaintiff” or “the Chief”) brings this suit against the City of Newton and Mayor Setti D. Warren (collectively “defendants”) seeking, among other things, indemnification for expenses incurred in connection with claims brought against him and the City of Newton by a former subordinate who claims he orally and physically abused her. As a result of those claims of abuse, the City attempted to discharge the Chief. Although the City won at the agency level, it lost when the matter was referred to arbitration. The City appealed to the Massachusetts Superior Court where the case remains pending. Plaintiff brings a tort claim and several federal and state claims for violation of his constitutional rights.

Pending before the Court is defendants’ motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Defendants submit that plaintiff’s complaint fails to state a claim for which relief can be granted because plaintiff failed to exhaust his contractual remedies. For the reasons that follow, defendants’ motion to dismiss will be allowed, in part, and denied, in part.

I. Background

From January, 2009 through January, 2014, the Chief and the City of Newton were parties to a five-year employment contract (“agreement”), which explained the details of plaintiff’s role as Chief of Police of the City of Newton. In September, 2011, Vincent Nguyen (“Nguyen”), the clerk in charge of collections for paid police details in the Office of the Chief of Police, made an allegation of theft against Jeanne Sweeney Mooney (“Mooney”), who was plaintiff’s Executive Secretary. Various City representatives and plaintiff made the decision to place Mooney on paid administrative leave pending an investigation. Despite finding probable cause to believe that Mooney had committed larceny over $250, the City decided in January, 2012 not to file a criminal complaint or take disciplinary action. Plaintiff opposed the City’s decision.

In May, 2012, Mooney reported that, among other acts of misconduct, plaintiff had called her a “bitch” and a “whore” more than two years earlier and that he had kicked her, injuring her foot and breaking her shoe. Mooney served the City with a letter demanding $600, 000. In June, 2012, at the direction of defendant Mayor Warren, the Newton Police Department filed a criminal complaint against Mooney for the alleged theft. In August, 2012, a Clerk Magistrate in Framingham District Court determined that there was probable cause to believe Mooney had committed larceny over $250. She was charged and subsequently acquitted in May, 2013.

In the process of investigating the allegation against Mooney, the City hired an independent investigator to look into Mooney’s allegations against the Chief. During that investigation, plaintiff voluntarily appeared without counsel for three separate interviews, none of which was audio/video recorded. He denied all of Mooney’s allegations.

In August, 2012, the investigator nevertheless determined that Mooney’s allegations were credible. The Chief’s employment agreement provided that “conduct unbecoming” was grounds for termination and, as a result of the investigator’s finding, he was placed on administrative leave pending a hearing. Prior to the hearing, however, defendant Mayor Warren made a public statement to several media sources that he accepted the investigator’s findings as true and intended to terminate the Chief.

In response to a complaint filed by Mooney with the Massachusetts Commission Against Discrimination (“MCAD”) in July, 2012, the City filed a Position Statement, purportedly on plaintiff’s behalf. The Position Statement declared that plaintiff acted alone when he chose to pursue the criminal complaint against Mooney, presumably in an effort to exculpate defendant Mayor Warren and other City officials. Plaintiff was not afforded an opportunity to view the Position Statement prior to its submission, nor did the City provide separate representation to plaintiff for the MCAD proceeding.

In October, 2012, the City of Newton attempted to discharge plaintiff after a hearing. After losing that dispute twice at arbitration, the City appealed in the Massachusetts Superior Court where it remains pending. Meanwhile, Mooney sued the City and the plaintiff in federal court. Summary judgment in that case was entered in favor of the Chief and the City with respect to her tort claims and claims for violations of various civil and constitutional rights, but Mooney retains some state law claims.

Plaintiff seeks indemnification from the City for the previous and ongoing litigation against him. The City has refused, forcing the Chief to retain private counsel at what he describes as considerable personal expense. Pending before the Court is defendants’ motion to dismiss. The City and the Mayor seek to dismiss plaintiff’s claims as barred by his failure to exhaust his contractual remedies, i.e. avail himself to arbitration. For the reasons set forth below, defendants’ motion will be allowed, in part, and denied, in part.

II. Motions to dismiss

A. Legal standard

The City is correct that public policy favors arbitration of disputes. McCarthy v. Azure, 22 F.3d 351, 355 (1st Cir. 1994). Arbitration is, however, only appropriate for resolution of disputes that “the parties have agreed to submit to arbitration.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995). In order to forego litigation and compel arbitration, the moving party must show

that a valid agreement to arbitrate exists, that the movant is entitled to invoke the arbitration clause, that the other party is bound by that clause, and that the claim ...

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