United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION
FOR JUDGMENT ON THE PLEADINGS [Docket No. 37]
JENNIFER C. BOAL United States Magistrate Judge
action, plaintiff Francisco Baez alleges that the Defendants
discriminated against him on account of his race, national
origin, and ethnicity in violation of 42 U.S.C. § 1983
and M.G.L. c. 151B. Defendants have moved for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure. Docket No. 37. For the following reasons, the
Court recommends that the District Judge assigned to this
case deny the motion.
a Black, Hispanic male whose parents were born in the
Dominican Republic. First Amended Complaint
(“AC”) ¶¶ 1, 6. At all relevant times,
he was employed as a police officer for the City of Brockton
Police Department. Id. at ¶ 1. During his
employment with the Brockton Police Department, Baez was the
only employee of Dominican Republic ancestry. Id. at
alleges that during the time that Baez worked with defendant
Sergeant George Khoury, Khoury referred to black people as
“niggers” and to Hispanic people as
“spics.” Id. at ¶ 9. Khoury also
referred to white women who dated black men as “white
trash nigger lovers.” Id.
September 13, 2013, Baez claims that he was in the booking
area as were a number of other officers, including Khoury.
Id. at ¶ 10. Baez walked by Khoury but never
pushed him, nudged him, or touched him in any way.
September 15, 2013, Baez claims that Khoury falsely reported
to defendant Chief of Police Emanuel Gomes that, on September
13, 2013, Baez bumped into Khoury and was discourteous to him
while in the booking room. Id. at ¶ 11. Khoury
also falsely reported that on the same day, Baez passed him
in the hallway leading to the cell area and bumped him as he
passed. Id. at ¶ 12. Khoury referred to
Baez's conduct as an assault. Id. at ¶ 11.
Baez alleges that Khoury's false accusations were made
because he had animus towards Baez on account of Baez's
race, national origin, and/or ethnicity. Id. at
December 13, 2013, as a result of Khoury's false
allegation, Baez received a written disciplinary action
issued by defendant Captain Wayne Sargo. Id. at
¶ 17. In the letter of reprimand, Sargo wrote that
“Sergeant Khoury related that you did willfully bump
him twice in the booking area and while he was involved with
a ‘Neighborhood Surge' operation.”
Id. Captain Sargo reprimanded Baez for conduct
unbecoming of an officer and for insubordination.
alleges that a video of the alleged incident shows that
Khoury's allegations were false. Id. at
¶¶ 18, 20, 32. Sargo viewed the video and was aware
that Khoury's allegations were false before issuing the
letter of reprimand. Id. at ¶¶ 19-21, 23.
Sargo's decision to discipline Baez despite his knowledge
that Khoury's allegations were false was based on racial,
ethnic, and national origin animus against Baez and/or
because Sargo condoned the prejudice and discriminatory
animus of Khoury. Id. at ¶ 23.
about December 10, 2013, Baez appealed his written
disciplinary reprimand to Gomes. Id. at ¶ 24.
Gomes was also aware that video existed showing that
Khoury's allegations were false. Id. at
¶¶ 25-27. Nevertheless, Gomes upheld the written
reprimand. Id. at ¶ 27. Baez alleges that
Gomes' decision to uphold the written reprimand
“was on account of racial, national origin, and ethnic
bias and animus on the part of Chief Gomes and because he was
conditioning and acting on the prejudice and discriminatory
animus of Sergeant Khoury.” Id. at ¶ 28.
attempt to defend Baez, his union requested the video of the
booking area on the date in question. Id. at ¶
29. The union was told by the Department that no such video
existed. Id. In fact, a video did exist.
Id. In February 2014, Baez received his personnel
record, which contained a copy of the video of the booking
area for September 13, 2013. Id. at ¶ 31.
filed a grievance of Gomes' decision upholding the
written reprimand. Id. at ¶ 33. A hearing was
held before the City of Brockton Director of Personnel
Maureen Cruise. Id. at ¶ 34. The video of the
booking area was shown at the hearing. Id. at ¶
35. Despite the clear video evidence that Khoury's
allegations were false, Cruise upheld the written reprimand.
Id. at ¶ 36.
the Union appealed the written reprimand to an independent
arbitrator, the City of Brockton entered into an agreement
whereby it agreed to remove the written reprimand from
Baez's personnel record and to rescind the discipline
issued to Baez. Id. at ¶ 38.
September 24, 2014, Baez filed a complaint with Internal
Affairs regarding Khoury, Sargo, and Gomes' conduct in
connection with Khoury's accusations against Baez and
Sargo and Gomes' handling of it. Id. at ¶
39. Neither Khoury, Sargo, nor Gomes were ever ...