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Alston v. Town of Brookline

United States District Court, D. Massachusetts

September 30, 2016

GERALD ALSTON, JUANA BAEZ, ROGELIO RODAS, CRUZ SANABRIA, DEMETRIUS OVIEDO, and DEON FINCHER, on behalf of themselves and all others similarly situated, Plaintiffs,
TOWN OF BROOKLINE, MASSACHUSETTS; BROOKLINE BOARD OF SELECTMEN; BETSY DEWITT, in her individual and official capacities; KENNETH GOLDSTEIN, in his individual and official capacities; NANCY DALY, in her individual and official capacities; JESSE MERMELL, in her individual and official capacities; NEIL WISHINSKY, in his individual and official capacities; SANDRA DEBOW, in her individual and official capacities; JOSLIN MURPHY, in her individual and official capacities; STANLEY SPIEGEL; and LOCAL 950, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, Defendants.


          George A. O'Toole, Jr. United States District Judge

         The magistrate judge to whom this matter was referred has filed a Report and Recommendation (dkt. no. 72) ("R&R") recommending that plaintiff Gerald Alston's claims be severed from the claims asserted by the other named plaintiffs and that the claims of the other named plaintiffs be dismissed without prejudice. As to the named defendants, the R&R further recommends that Alston's claims against all defendants except Stanley Spiegel be dismissed without prejudice and with leave to replead those claims in a manner consistent with the requirement of Federal Rule of Civil Procedure 8(a)(2) (requiring "a short and plain statement of the claim showing that the pleader is entitled to relief). The R&R further recommends that Alston's claims against Spiegel be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. The plaintiffs filed objections to the R&R (dkt. no. 73), and the defendants filed a response to those objections (dkt. no. 74).

         Having reviewed the relevant pleadings and submissions, I approve and ADOPT the magistrate judge's recommendation with the sole exception of her recommendation that Alston's claims against Spiegel be dismissed with prejudice. Since the plaintiff is being granted leave to replead against the other defendants, I think it is fair to give him a chance to replead his claims against Spiegel as well.

         Accordingly, the defendants' Motions to Dismiss (dkt. nos. 34, 36, 45, and 52) are GRANTED to the extent described above, and the present complaint is dismissed without prejudice. Alston is granted leave to file an amended complaint stating claims personal to him. Any amended complaint shall comply with the pleading requirements of the Federal Rules of Civil Procedure, and shall be filed not later than 21 days from the entry of this Order.

         It is SO ORDERED.


          M. Page Kelley United States Magistrate Judge

         I. Overview of the case

         In this putative class action, six named plaintiffs allege a host of violations of 42 U.S.C. § 1981 and § 1983 against the Town of Brookline ("the Town"), the Brookline Board of Selectmen ("the Board"), and Local 950, International Association of Firefighters ("the Union"); and violations of 42 U.S.C. § 1981, § 1983, and § 1985 against certain members of the Board in their official and individual capacities ("the Town individual defendants") and against Stanley Spiegel, who is a Town Meeting Member. (Amended complaint, #21 at ¶¶ 81-84.) The 85-page, 270-paragraph amended complaint states at the outset that the plaintiffs "bring this claim on behalf of themselves and all others who have been damaged by Brookline's longstanding and well-established policy, custom and practice of opposing racial equality, enforcing racial subordination, engaging in affirmative action and favoritism towards [W]hite residents and employees, and retaliating against persons who protest racial discrimination." Id. at ¶ 2.

         Plaintiffs are represented by one attorney, Brooks Ames, who filed the original complaint on December 1, 2015, on behalf of one plaintiff, Gerald Alston, a Brookline firefighter alleging civil rights violations. (#1.) On January 26, 2016, the amended complaint was filed, adding seven more plaintiffs. (#21.) Two of them, Officers Prentice Pilot and Estifanos Zerai-Misgun of the Brookline Police Department, filed Notices of Voluntary Dismissal on February 8, 2016. (##30, 31.)[1]

         The allegations concerning each plaintiff are set out in detail below, but in short, the plaintiffs consist of Gerald Alston, a Brookline firefighter who allegedly was discriminated against because he is Black[2] and then suffered retaliation for speaking out about it; Cruz Sanabria, a Hispanic Brookline resident who allegedly was falsely charged with a crime in Brookline, among other retaliatory acts, for speaking out against racism; Juana Baez, a Hispanic Brookline resident who allegedly had a violent encounter with a tow truck driver and a Brookline police officer; Rogelio Rodas, a Hispanic Brookline resident who allegedly was assaulted by a Brookline police officer; Demetrius Oviedo, a Brookline resident whose ethnicity is never stated in the amended complaint, who passed the civil service exam to become a Brookline firefighter but was not hired for allegedly discriminatory reasons and who also had problems with the Brookline police; and Deon Fincher, a Black sanitation worker in Brookline who claims he was treated differently on the job than were White[3] workers.

         Plaintiffs allege that the Town's policy of "disregarding the Fourteenth Amendment" violated their constitutional rights. (#21 at ¶ 124.) The policy "has kept free Black people out of Brookline for centuries, " as evidenced by the fact that only 3% of the population of Brookline is Black. Id. at ¶ 130. The amended complaint lists various committees that the Town has established from 1953 to the present to address issues concerning racism and argues that in fact these efforts "suppress racial equality and enforce racial subordination." Id. at ¶ 134. Plaintiffs set out numerous incidents of lenient treatment afforded to White people, such as an instance where an unnamed employee from the department of public works was not terminated for getting a criminal conviction, or an instance where a White person was promoted over a Black person with superior qualifications for a "senior administrator position" in the Town. Id. at ¶¶ 136-157.

         In a section entitled "The Board of Selectmen Fight to Protect & Conceal the Policy, " the amended complaint relates instances where the Board thwarted unnamed citizens' efforts to expose and change "the Town's unconstitutional policy."[4] Id. at ¶¶ l 59-173.

         The amended complaint asserts that "the Town Defendants' unconstitutional policy practice and custom caused Plaintiffs to suffer damages compensable pursuant to 42 U.S.C. § 1981 and § 1983" and "the individual defendants violated 42 U.S.C. § 1981, 1983, and 1985 by enforcing the Town's unconstitutional policy, practice, and custom, " "by retaliating against Plaintiffs for opposing the Town's unconstitutional and racist policy, " and "by discriminating against Plaintiffs on the basis of race." Id. at ¶¶ 254, 25 8, 260-61. Plaintiffs seek declaratory judgment against all defendants, a finding that Article 3.14 of the Town's bylaws violates the U.S. Constitution, compensatory and punitive damages, class certification, establishment of a reparations fund, costs and attorney's fees. (#21 at ¶ 84.)

         This report and recommendation addresses the motions to dismiss filed by all defendants. (##34, 36, 48, 53). Plaintiffs opposed the motions to dismiss (##40, 56, 64), and all defendants replied. (##65, 68, 71.)

         For the reasons set out below, the court recommends as follows:

         1. The District Court should exercise its discretion under Fed.R.Civ.P. 20 and 21 to sever Mr. Alston's case from the cases of the other named plaintiffs, as the plaintiffs' cases do not meet the criteria under Fed.R.Civ.P. 20 (a)(1) to be tried together in the same action. The District Court should dismiss all but the first named plaintiff without prejudice to the filing of new, separate lawsuits by the dropped plaintiffs.[5] See Cruz v. Bristol-Myers Squibb Co., PR, 699 F.3d 563, 569 (1st Cir. 2012).

         2. With regard to the remaining plaintiff, Mr. Alston, the District Court should dismiss his claims against all defendants except Spiegel, without prejudice and with leave to replead, for failure to comply with the threshold test of Fed.R.Civ.P. 8: that a plaintiff must set forth a "short and plain statement" of his claims showing that he is entitled to relief.

         3. Alston's claims against Spiegel should be dismissed with prejudice for failure to state a claim under Fed.R.Civ.P. 12(b)(6).

         II. Facts

         The facts as alleged in the amended complaint are as follows.

         A. Defendants

         Defendant Town of Brookline "is a duly organized town in the Commonwealth of Massachusetts... headed by an elected five-member Board of Selectmen and a representative town meeting." (#21 at ¶ 110.)

         Defendant Brookline Board of Selectmen comprises elected officers of the Town. Id. at ¶ 111. The Selectmen serve as the Police and Fire Commissioners, and hold ultimate decisionmaking power for hiring, firing, promotion, demotion, and disciplinary suspension of Brookline police officers and firefighters. Id. at ¶111. They also hold authority to hire and fire Town employees such as the town administrator, town counsel, director of human resources, police chief, and fire chief. Id. They adopt and oversee Town administrative policies, and appoint and serve on committees to address Town issues. Id. The elected Chair of the Brookline Board of Selectmen ("Chair") sets the agenda for the Board and communicates with administrative staff. Id.

         At some time relevant to this suit, DeBow was the Town's human resources director, Murphy was town counsel, and Spiegel was a town meeting and advisory committee member. Id. at ¶¶ 119, 120, 208. The remaining individual defendants, DeWitt, Goldstein, Daly, Mermell, and Wishinsky, served on the Board. Id. at ¶¶ 112-16.

         B. Plaintiff Gerald Alston

         1. Pender Voicemail and Investigation

         Gerald Alston, who is Black, joined the Brookline Fire Department in 2002. (#21 at ¶102.) On May 28, 2010, Alston was injured at work and heard "rumors that his supervising officer, Lt. Paul Pender, was claiming that [Alston] was faking his injury to obtain leave." Id. at ¶175. Pender enjoys privileges in Brookline because he is White and because his father was a Brookline firefighter and boxer. Id. at ¶176. On May 30, Pender left a voicemail for Alston; at the end of the voicemail Pender said "fat fuck" and "fucking nigger." Id. at ¶¶ 177-78. Pender later told Alston that the comments were not directed at him, but rather at "a gangbanger" or an "18-wheel truck that cut him off in traffic." Id. at ¶181. Pender considered the situation a joke, and accused Alston of having a vendetta against him. Id.

         Alston reported the message to the Fire Department's chief operating officer, who took no action. Id. at ¶¶ 179-80. On July 27, 2010, Alston filed a written complaint with the Town, and met with the fire chief, town counsel, and "human resources." Id. at ¶182. Upon hearing the message, town counsel said "we have a problem." Id. The fire chief offered to fire Pender, but Alston refused; the chief then said he would make Pender ineligible for promotion. Id. After this meeting, the Town transferred Pender to a different firehouse and opened an investigation. Id. at ¶ 184. During the investigation, the Town pressured Alston to drop his complaint: the director of human resources, defendant Sandra Debow, asked Alston in a phone conversation "how long he wanted [Pender] to suffer." Id. at ¶ 185. Alston told Debow that he wanted the Town to follow its policies; she then called Alston an "asshole" and hung up. Id. The Union "spread rumors that Mr. Alston had made a false allegation of racism against Mr. Pender" and sent a representative to a meeting with Debow and Alston. Id.

         By mid-August 2010, the entire Board knew of the voicemail and investigation. Id. at ¶ 186. It gave Pender "an extremely short suspension" with pay. Id. at ¶187. A few days after the suspension, the Town promoted Pender from lieutenant to acting captain. Id. at ¶ 190. The Board then adopted a "'zero tolerance' anti-discrimination policy" which did not change the Town's process for investigating discrimination complaints. Id. at ¶ 188. At a Board-ordered mediation between Pender and Alston, Pender refused to shake Alston's hand or apologize to him. Id. at ¶ 189. The Town "arranged for" Pender and his family to fly to the White House where Pender received an award; it did not inform the White House of the investigation or suspension. Id. at ¶ 190.

         2. Retaliation against Alston

         The Town and the Union "retaliated against Mr. Alston because he protested the Town's policy of racial subordination of [B]lack people and racial favoritism toward [W]hite people." Id. at ¶ 191. The Board and the Town "created a retaliatory and hostile work environment" by training supervisors to "secretly report workplace friction" with Alston; having human resources prepare reports "portraying [Alston] as a problem employee;" and painting Alston as a "disruptive and overly-sensitive" person who "imagin[ed] or fabricat[ed] complaints of harassment and retaliation." Id. at ¶¶ 196-97. The Union also retaliated against Alston, by "falsely claiming that [his] complaint against Mr. Pender was meritless and self-interested." Id. at ¶193. Alston "protested the Union's retaliation against him but the Town did nothing to address it." Id. at ¶ 195. Although Alston's doctor recommended medical leave due to stress, the Town required him to use sick time instead of granting paid leave. Id. at ¶198.

         Alston filed a formal complaint with the Massachusetts Commission Against Discrimination ("MCAD") and filed a lawsuit in the Massachusetts Superior Court. Id. at ¶199. In response, the Town perpetrated "more harassment and retaliation" against Alston. Id. The Town conducted a sham investigation and produced a report showing that Alston had fabricated his complaints. Id. at ¶200. The Town "encouraged supervisors to deny" retaliating against Alston. Id. at ¶ 201. In spring 2013, while Alston's MCAD complaint was pending, the Board voted to make Pender's promotion permanent. Id. at ¶ 203. The Town denied Alston promotions to acting lieutenant, although he was "the senior man on the truck." Id. at ¶ 204. At a committee meeting, defendant Nancy Daly distributed a letter that had been sent to the local Brookline newspaper. Id. at ¶207. The letter "attacked [Alston's] courage and credibility, " and "was solicited from a retired Black firefighter for the purpose of retaliating against" Alston. Id. The next day, defendant Stanley Spiegel distributed the letter to town meeting members to provide "'diversity' of opinion regarding the lawsuit." Id. at ¶ 208. The Board "blocked the human relations commission from intervening, " and "refused to release the Town's investigatory reports and clarify public uncertainty." Id.

         3. "Leave" Incident

         In mid-December 2013, Alston found the word "Leave" written on a door underneath his jacket. Id. at ¶ 210. Alston photographed the message and told other firefighters "this is the kind of thing that makes people go postal." Id. Alston said "he was not like that though" and that "he was going to make the Town pay legally." Id. The Union reported the writing to the Town, the fire chief, the human resources director and town counsel, but the Town did not immediately investigate. Id. at ¶¶ 210-11. Instead, because of his "going postal" comment, the Town began a sham investigation of Alston under the workplace safety policy, requiring him to have a fitness-for-duty investigation with the Town psychiatrist. Id. Further, the Town issued a stay-away order requiring Alston to stay away from the Town's firehouses. Id. at ¶¶ 215-16. The Union asked for police officers to be posted at the firehouses, but the fire chief refused. Id. at ¶ 216.

         Three months after the writing, the Town called Alston for an interview, but refused to allow his attorney to attend. Id. at ¶ 213. Five months after the writing, the Town wrote in a report that Alston himself or a member of a neighboring fraternity could have written the word. Id. at ¶ 211. However, the Board knew this was false, and that the word was actually intended as retaliation for the lawsuit Alston had filed. Id. at ¶ 212.

         On January 6, 2014, the Town's psychiatrist concluded Alston posed no threat to workplace safety. Id. at ¶ 216. However, in May 2014 the Town "falsely determined that Mr. Alston had violated the workplace safety policy." Id. at ¶ 217. The Town placed Alston on unpaid leave. Id. at ¶ 218. The Union did not object to this or file a grievance, and it "did not object to the finding of a violation, did not attempt to negotiate on behalf of Mr. Alston, and did not seek injured on duty status for Mr. Alston." Id. The Town conditioned Alston's return to duty upon accepting "abusive and onerous conditions designed to protect it in litigation and to leave the impression that [Alston] was to blame for hostility he encountered in the fire house." Id. at ¶ 219.

         The Town also obtained Alston's medical records through his Superior Court case; the records indicated some cocaine use prior to December 2011. Id. at ¶220. Based on these records, the Town instructed the Town psychiatrist to conduct an additional exam including this information. Id. at ¶ 221. Further, the Town "leaked the information in Mr. Alston's file" to defendant Spiegel and "others." Id. at ¶ 222. The Town has no written substance abuse policy and there was no indication that Alston continued to use drugs. Id. at ¶ 223. However, the human resources director included two years of random drug testing in Alston's conditions to return to duty. Id. This was retaliatory and different from the treatment of White employees. Id.

         In October 2014, Alston used up his remaining sick and leave time and received his final paycheck. Id. at ¶224. The Union did not contact Alston to check on his health or wellbeing. Id. at ¶ 224. In November 2014, the human resources director "scheduled a reasonable accommodation meeting for the purpose of terminating Mr. Alston." Id. at ¶ 225. Alston's counsel attempted to schedule a meeting with Goldstein. Id. at ¶226. In response, assistant town counsel threatened Alston's counsel via email. Id. At the end of November, Alston filed a letter with the Board, asking them to 1) conduct an independent investigation; 2) grant him a hearing to address his appeal; 3) investigate a recent MCAD finding against the fire chief and human resources director involving a Jewish firefighter; 4) investigate whether the Town had misled MCAD about its reasons for requesting anti-discrimination training; and 5) conduct a racial climate review of the entire department. Id. at ¶ 227. The Board did none of these things. Id. at ¶ 228.

         In December 2014, Alston again asked the Board to conduct an investigation of his case and place him back on administrative leave. Id. at ¶229. Instead, the Town retaliated against Alston by providing Spiegel with Alston's file.[6] Id. at ¶ 230. Spiegel then intimated to a "supporter" of Alston that there was damaging information in Alston's file. Id. After Alston complained, Town counsel spoke to Spiegel and a witness, and wrote a "sham report" the next day concluding that Spiegel had not engaged in misconduct. Id. at ¶ 231.

         Alston and his attorney arranged to inspect his personnel file; when they arrived, a police detective was present to observe. Id. at ¶232. After Alston's attorney called Goldstein, the police detective was removed. Id. In reviewing his file, Alston noted that information was missing. Id. at ¶ 233. When he brought this up to human resources, a specialist reviewed his file with the police detective. Id. The specialist added a missing page with redactions "that appeared to have been made that day by the human resources director, " and Alston discovered that there were two relevant letters missing from the file. Id.

         In January 2015, Alston and his attorney met with Goldstein and town counsel. Id. at ¶ 234. Goldstein admitted "doubts" about Pender's story, disagreed with Pender's promotion, and claimed to be powerless with regard to Spiegel's comments. Id. During the meeting, town counsel "superfluously repeat[ed] the phrase 'fucking nigger.'" Id. at ¶ 235. The meeting ended when Goldstein perceived that Alston was threatening him, and left abruptly. Id. at ¶ 236.

         Goldstein threatened to file charges against Alston, but no charges were actually filed. Id. at ¶¶ 236-37. In retaliation, the Town circulated a flyer to the police with a picture of Alston, falsely stating that Alston had threatened Goldstein and was possibly armed. Id. at ¶ 237.

         In February 2015, Alston had a second fitness-for-duty exam; the new psychiatrist added conditions "including meeting with a therapist weekly and a psychiatrist monthly and releasing them to discuss his treatment with the Town." Id. at ¶ 238. The Board endorsed the conditions. Id. Alston refused the conditions, and asked to meet with the Board and Union, who declined his requests. Id. at ¶ 239. Alston obtained a review from an independent psychiatrist, who concluded that his problems were not "in his head" and required adjustment of the firehouse environment, not psychiatric treatment. Id. at ¶ 240. Alston suffered severe impacts, including divorce, debt, deteriorated health, and loss of "the job that he loved to do and excelled at." Id. at ¶ 241.

         C. Plaintiff Juana Baez

         Juana Baez is a Brookline resident from the Dominican Republic who identifies as Hispanic. Id. at ¶¶ 47, 64, 106. On August 15, 2015, Baez and her newborn baby had just returned from the hospital. Id. Her baby's father, Alberto Rodrigo-Torres, parked Baez' car near her home in an area not marked as a tow zone or fire lane while he carried groceries upstairs.[7] Id. Baez had a permit to park on the property. Id. While Rodrigo-Torres was inside, a White tow truck driver hooked up the car. Id. Rodrigo-Torres and Baez attempted to persuade him not to tow the car and offered to pay the "drop fee." Id. at ¶ 65. The driver cursed and yelled, refused to let them pay the fee, and opened and closed his truck door in a way that almost hit Baez and her baby. Id. Rodrigo-Torres stepped in the bed of the tow truck to prevent the driver from leaving, and called the police. Id.

         When the police arrived, they accepted the tow truck driver's version of events, and took no action towards him. Id. at ¶¶ 47, 66. Instead, they handcuffed Rodrigo-Torres and ordered him not to speak Spanish; demanded a passport from Baez, who is a U.S. citizen; and falsely accused Baez of breaking the tow truck's window. Id. at ¶66. Although the driver accused Rodrigo-Torres of scratching his truck with a key, the police took no pictures of the alleged damage and did not examine Rodrigo-Torres' keys. Id. at ¶ 69. Twice, the police left Rodrigo-Torres in a closed car without air conditioning although the outside temperature was approximately 85 degrees. Id. at ¶ 70.

         Rodrigo-Torres was charged with malicious destruction of property and Baez was charged with disorderly conduct. Id. at ¶ 67. Rodrigo-Torres' charges remain pending, although no evidence against him has been produced. Id. at ¶ 71. Baez was summonsed for an arraignment rather than a show cause hearing, despite the fact that the police did not witness the disorderly conduct reported by the tow truck driver. Id. at ¶ 68. Although the case was immediately dismissed, Baez had to pay court costs of $150. Id. at ¶ 71. Further, the police referred Baez to the Department of Children & Families ("DCF"). Id. at ¶ 68. The DCF worker closed the referral, "telling Baez that her problem with the Brookline police was the color of her skin." Id. at ¶ 71. Baez suffered severe emotional distress, and is now afraid of the police. Id. at ¶ 72.

         In November 2015, Baez wrote to the Board complaining about the police's treatment of her, and asking that the Town and the police contact her only through counsel. Id. at ¶73. The Town Administrator responded that the police would contact Baez directly, "[b]ecause that's the way we do it." Id. at ¶ 74. On January 20, 2016, [8] after Baez spoke at a public Board meeting about the incident, the police asked Baez to sign a release form. Id. at ΒΆ 75. Although the ...

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