United States District Court, D. Massachusetts
JOHN P. O'ROURKE, Plaintiff,
HAMPSHIRE COUNCIL OF GOVERNMENTS; WILLIAM R. BARNETT, in his Official Capacity as Chairman of the Executive Committee of the Hampshire Council of Governments; EILEEN STEWART, in her Official Capacity as Vice Chairman of the Executive Committee of the Hampshire Council Of Governments; CAROL P. CONSTANT, in her Official Capacity as a member of the Executive Committee of the Hampshire Council of Governments; MICHAEL P. SARSYNSKI, JR., in his Official Capacity as a member of the Executive Committee of the Hampshire Council of Governments; GEORGE A. SYMBORSKI, in his Official Capacity as a member of the Executive Committee of the Hampshire Council of Governments; TODD D. FORD, in his Official Capacity as Executive Director of the Hampshire Council of Governments, Defendants.
MEMORANDUM AND ORDER REGARDING REPORT AND
RECOMMENDATION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
AND DEFENDANTS' CROSS MOTION FOR SUMMARY JUDGMENT (DKT.
NOS. 36, 39, 68)
G. MASTROIANNI, UNITED STATES DISTRICT JUDGE
O'Rourke (“Plaintiff”), acting pro
se, brings the present action against the Hampshire
Council of Governments (“Council”) and the
following members of its board in their official capacity:
William R. Barnett, Eileen Stewart, Carol P. Constant,
Michael P. Sarsynski, George A. Symborski, and Todd D. Ford
(collectively, “Defendants”). Plaintiff asserts
federal, state, constitutional, and statutory claims arising
from the Council's decision to terminate him from his
position as Director of Electricity on August 19, 2013.
Plaintiff and Defendants have filed cross motions for summary
filed suit against Defendants on December 26, 2014 after
being terminated from his position as Director of the
Council's Electricity Department
(“Department”) without notice or a hearing.
(See Dkt. No. 1, Compl.) Plaintiff's complaint
alleges the following: (1) Defendants deprived him of his
property rights and right to procedural due process under the
Fourteenth Amendment in violation of 42 U.S.C. § 1983
and analogous provisions of the Massachusetts constitution by
terminating him without a hearing (Count I), (id.
¶¶ 61-65); (2) Defendants breached Plaintiff's
employment contract by firing him without cause and in a
manner inconsistent with the Council's Personnel Policies
and Procedures Manual (“Personnel Manual”) (Count
II), (id. ¶¶ 66-70); (3) Defendants
violated Massachusetts's Open Meeting Law
(“OML”) by improperly conducting closed sessions
without affording Plaintiff the requisite procedural
safeguards (Count III), (id. ¶¶ 71-72);
and (4) Defendants conspired to violate Plaintiff's due
process rights in violation of 42 U.S.C. §§ 1983
and 1985 (Count IV). (Id. ¶¶ 73-77.)
April 2, 2015, Defendants filed a motion to dismiss all
counts pursuant to Federal Rule of Civil Procedure 12(b)(6).
(See Dkt. No. 15, Mot. to Dismiss.) Defendants
argued: (1) Plaintiff's due process claims (Counts I and
IV) must be dismissed “because Plaintiff was an
employee at will and did not have a constitutionally
protected property interest in his continued employment,
” (id. at 2); (2) Plaintiff's breach of
contract claim (Count II) must be dismissed “because
Plaintiff's employment agreement with the Council did not
set out a definite term of employment and accordingly, was
terminable at will, ” (id.); and (3)
Plaintiff's OML claim (Count III) must be dismissed
“because the Plaintiff lacks standing to bring such a
claim.” (Id.) Plaintiff opposed the motion,
(see Dkt. No. 20, Mem. in Opp. to Defs.' Mot. to
Dismiss), and it was taken under advisement without a
hearing. (See Dkt. No. 22.)
published opinion, this court denied Defendants' motion
to dismiss as to Counts I, II, and IV, and dismissed Count
III without prejudice. See O'Rourke v. Hampshire Council
of Govt's, 121 F.Supp.3d 264 (D. Mass. 2015). On
February 22, 2016, Plaintiff filed a motion for summary
judgment on the remaining claims (Counts I, II, IV). (Dkt.
No. 36.) On March 11, 2016, Defendants filed a cross motion
for summary judgment. (Dkt. No. 39.)
parties are familiar with the facts of the case, which are
set forth in detail in this court's prior decision on
Defendants' motion to dismiss and Judge Robertson's
R&R. The court therefore begins its discussion with the
standard of review.
Standard of Review
judgment is proper where a movant succeeds in demonstrating
no genuine issue of material fact exists, and that it is
entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P.
56(c)). A fact is material if it has the capacity to
“sway the outcome of the litigation, ”
Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st Cir.
2008), and presents a genuine issue if it could persuade a
reasonable jury to return a verdict for the nonmovant.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986) (quoting Fed.R.Civ.P. 56(c)). A movant is entitled to
judgment as a matter of law where the nonmovant “fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322. In evaluating the facts
adduced, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in
his favor.” Anderson, 477 U.S. at 255 (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59
(1970)). “The standards are the same where . . . both
parties have moved for summary judgment. ‘The court
must rule on each party's motion on an individual and
separate basis, determining, for each side, whether a
judgment may be entered in accordance with the Rule 56
standard.'” Bienkowski v. Northeastern
Univ., 285 F.3d 138, 140 (1st Cir. 2002) (internal
quotation marks omitted).
objecting party is entitled to de novo review of an
R&R. See United States v. Raddatz, 447 U.S. 667,
court will adopt Judge Robertson's well-considered R&R in
full despite Plaintiff and Defendants' objections, ...