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Alston v. Town of Brookline

United States District Court, D. Massachusetts

March 30, 2018

GERALD ALSTON, Plaintiff,
v.
TOWN OF BROOKLINE, MASSACHUSETTS, BROOKLINE BOARD OF SELECTMEN, BETSY DEWITT, KENNETH GOLDSTEIN, NANCY DALY, JESSE MERMELL, NEIL WISHINSKY, BERNARD GREENE, BEN FRANCO, NANCY HELLER, SANDRA DEBOW, JOSLIN MURPHY, each of them in his or her individual and official capacity, and LOCAL 950, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, Defendants.

          OPINION AND ORDER

          GEORGE A. O'TOOLE, JR. UNITED STATES DISTRICT JUDGE.

         The magistrate judge to whom this case was referred issued two reports and recommendations (“the R&Rs”) (dkt. nos. 188 & 189) addressing the motions to dismiss filed by the Town of Brookline defendants (dkt. no. 110) and the individual defendants (dkt. no. 112), respectively. The R&Rs recommend that paragraphs of the third amended complaint be stricken as surplusage. They also recommend rejecting the defendants' arguments that certain claims apparently pled by the plaintiff are barred either by the Rooker-Feldman doctrine or by principles of claim preclusion to the extent that they allege facts that pre-date the termination of the plaintiff's prior Norfolk County action. The defendants filed timely objections to the latter of these recommendations.[1]

         After reviewing the parties' submissions concerning the objections, I agree that the Rooker-Feldman Doctrine does not bar the present case, but I conclude that the doctrine of claim preclusion does apply, because the claims at issue could have or should have been brought in the prior action. See O'Neill v. City Manager of Cambridge, 700 N.E.2d 530, 532-33 (Mass. 1998); Heacock v. Heacock, 520 N.E.2d 151, 153 (Mass. 1988); Martin v. Ring, 514 N.E.2d 663, 664 (Mass. 1987). The plaintiff may only assert claims that post-date the final judgment of the Norfolk Superior Court case.

         Accordingly, I ADOPT the R&Rs (dkt. nos. 188 & 189) insofar as portions of the third amended complaint are stricken, but I SUSTAIN the defendants' objection as stated above with respect to claim preclusion.

         It is SO ORDERED.

         REPORT AND RECOMMENDATION ON TOWN DEFENDANTS' PARTIAL MOTION TO DISMISS (#110).

          KELLEY, U.S.M.J.

         I. Introduction.

         This is a civil rights action in which a former firefighter for the Town of Brookline (the Town), Gerald Alston, who is Black, alleges that he was racially discriminated against by the Town, certain town officials in their individual and official capacities, and the firefighters' union. This motion to dismiss only concerns Alston's claims against the Town.

         Specifically, Alston brought this action against the Town, the Board of Selectmen (the Board), the Town Counsel, and the Human Resources Director (collectively, the Town defendants)[1] alleging that they are liable under §§ 1981 and 1983 because of a custom of racial discrimination in Town governance and because of their actions as policymakers for the Town. Alston claims that the Town defendants violated his Fourteenth Amendment right to equal protection by enforcing the policy, and that they violated his First Amendment rights to freedom of speech and to petition the government for redress of grievances by retaliating against him. (#108 ¶¶ 192-197.)[2] For the reasons outlined below, the court recommends that Town Defendants' Partial Motion to Dismiss (#110) be allowed in part and denied in part.

         II. Procedural History.

         On December 1, 2015, Alston filed a 55-page complaint in which he was the sole plaintiff. (#1.) Alston alleged that the Town defendants, individual defendants, and the firefighters' union to which Alston had belonged had violated his rights in much the same way he alleges in the present complaint. Id. On January 12, 2016, the Town defendants moved to dismiss the complaint for failure to state a claim (##10, 11) on essentially the same grounds as they do in the present motion. Compare #11 at 22 with #111 at 15-16; #11 at 18 with #111 at 21.

         Before the court acted on the motion to dismiss, Alston filed a first amended complaint on January 26, 2016, which was styled as a class action. (#21.) The amended complaint added seven new plaintiffs who claimed that they, too, had been racially discriminated against by the Town. Id. Two of the plaintiffs withdrew from the complaint two weeks later. (##30, 31.) The Town again moved to dismiss the case on the same grounds as in the original motion but added arguments concerning why the new plaintiffs were not properly joined in Alston's case. (##34, 35.)

         On September 2, 2016, this court issued a Report and Recommendation to the District Court, O'Toole, J., recommending that the first amended complaint be dismissed without prejudice for failure to conform to Federal Rules of Civil Procedure[3] 8 and 20, and that all plaintiffs other than Alston be required to file new, separate lawsuits. (#72.)[4] The court did not address the substance of the Town defendants' pending motion to dismiss because the court ordered Alston to file a new complaint. Id. at 39. Judge O'Toole adopted the Report and Recommendation in part. (#75.)[5]

         On October 21, 2016, Alston filed a second amended complaint. (#78.) The Town defendants and individual defendants jointly moved to strike portions of it under Rule 12(f) (#86) and moved alternatively for a more definite statement under Rule (12)(e) (#88). This court issued an Order in which ##86 and 88 were granted in part and denied in part. (#106.)

         Alston then filed the now-operative third amended complaint. (#108.) The Town defendants have once again moved to dismiss (#110); Alston responded in opposition (#133)[6]; and the Town defendants replied (#135).[7] An oral argument on this motion was held on January 5, 2018.

         The Town defendants' motion to dismiss is limited to (1) portions of the third amended complaint relating to “policy choices by the Town regarding the powers and jurisdiction that various Town committees should have, ” including the Town Meeting's amendment of a bylaw to remove jurisdiction over employee complaints of racial discrimination from a certain commission, and a claim that the bylaw as amended is unconstitutional; and (2) portions of the complaint “relating to alleged discrimination against third parties by unrelated actors spanning decades.” (#110 at 2, #111 at 3.) The Town defendants do not seek dismissal of Alston's claims against the Town defendants arising from an alleged hostile work environment and Alston's ultimate termination. (#111 at 1-2.)[8] The Town defendants explain that they seek dismissal of “large sections of the Complaint that are lengthy and that would needlessly expand the scope of discovery to the prejudice of the Town and third parties when they have nothing to do with Plaintiff's alleged injury or wrongdoing by the Selectmen, who are the ‘Policymaker' for purposes of establishing Section 1981 and/or 1983 municipal liability in this case.” Id. at 2.

         In order to determine whether the complained-of material is relevant or should be stricken, the court must first describe both the facts of the case and the particular factual allegations to which defendants object. The court will then discuss the legal framework of Alston's claims. Finally, applying this law to the facts, the court determines that certain allegations should be stricken, while others should remain in the complaint.

         II. Allegations in the Third Amended Complaint.

         The third amended complaint alleges that the Town's policy, practice, and custom of protecting and encouraging acts of racial discrimination and disparate treatment (the custom)[9]was the driving force behind the racially-motivated wrongs inflicted on Alston. See generally #108. As explained above, a substantial procedural history exists in this matter and previous orders of the court set out the facts of the case at length, see, e.g., #72 (Report and Recommendation on Motions to Dismiss). While only those facts germane to the pending motion will be repeated here, because of the nature of the analysis those facts must be set out in detail.

         A. Facts Pertaining to Alston.

         Alston joined the Brookline Fire Department (BFD) in 2002. (#108 ¶ 2.) On May 30, 2010, Paul Pender, a lieutenant in the BFD, left a voicemail on Alston's phone in which he called Alston a “f***ing n*****” (the voicemail incident). Id. ¶ 19. A week later, Alston reported the voicemail incident to BFD's chief operating officer, but the Town took no action other than to inform Pender of Alston's complaint. Id. ¶ 22. Alston contends that Pender made excuses for the comment, showed no remorse, and told Alston that filing the complaint “was the stupidest thing [Alston] could have ever done.” Id. ¶¶ 23-24. Pender behaved this way because he knew that the custom of racial discrimination in the Town would protect him and punish Alston. Id. ¶ 24.

         On August 17, 2010, the Board held a hearing to address the voicemail incident, but failed to question Pender about his excuses; did not investigate Pender's intimidating and retaliatory conduct; and did not “terminate his employment, demote him, or make him ineligible for promotion.” Id. ¶ 26. The Board kept the facts of the incident secret. Id. ¶ 27.

         In September 2010, Pender served a “two 24-hour shift suspension.” Id. ¶ 29. Then the Town, “[w]ith the tacit approval of [the Board], ” promoted Pender to acting captain. Id. On September 22, 2010, the Board arranged for Pender to travel to the White House to receive a medal of valor from the attorney general. Id. ¶ 27. Selectwoman Mermell tweeted out coverage of the medal ceremony. Id. The purpose and effect of Selectwoman Mermell's actions was to “protect Lieutenant Pender from any stigma and to mark him with the selectmen's corporate stamp of approval.” Id. ¶ 28.

         In May 2012, Alston filed a complaint with the Massachusetts Commission Against Discrimination (the MCAD) “relating to [Pender's] promotion.” Id. ¶ 32a. Prior to filing with the MCAD, Alston complained repeatedly to the fire chief and the director of human resources about Pender's promotion. Id. According to Alston, “[t]o take advantage of the 300-day statute of limitations for employment discrimination actions in Massachusetts, [the Town] persuaded Mr. Alston to keep his complaints ‘in-house' for years by lying to him and cynically taking advantage of his loyalty to the fire department and his desire to be seen as a team player.” Id. ¶ 33.

         On May 7, 2013, the fire chief reported to the Board that Pender was being “assigned to be the assistant trainer for all firefighters in Brookline.” Id. ¶ 30. Despite knowing that Alston had filed a complaint with the MCAD protesting his treatment after he reported the racial slur, the Board voted unanimously to promote Pender permanently to captain. Id. ¶ 31. Alston contends that this action was in contravention to the Board's statement to him that Pender would be ineligible for promotion. Id. ¶ 34. The Board told Alston that Pender “had not really been promoted and that his promotion to Captain was temporary and would be rescinded.” Id.

         Alston states that the Town “promised to ‘take care of' the retaliation against [Alston] and prohibited him from obtaining relief from the Town's civil rights commission, the Human Relations Commission.” Id. The Town also failed to investigate properly Alston's complaints that he had been “shunned, ostracized, and denied promotions to temporary Lieutenant in April and May of 2013.” Id. ¶ 35.

         In June of 2013, Alston filed an action in Superior Court of the Commonwealth of Massachusetts, Norfolk County, “complain[ing] about Lieutenant Pender's promotion.” Id. ¶ 32a.

         In the fall of 2013, the Town “attacked Mr. Alston publicly and behind closed doors; forced him out of the fire department on a pretext; and falsely and maliciously arranged for him to be deemed ‘unfit for duty' by a biased and incompetent psychiatrist.” Id. ¶ 36. On December 19, 2013, the word “Leave” was written on the door underneath Alston's jacket on his assigned seat on the firetruck. Id. ¶ 32e. Alston asserts that the Town and certain individual defendants failed to investigate the incident adequately, id. ¶¶ 161, 174, and that as a result of this failure, other firefighters were encouraged to shun and ostracize him, id. ¶ 32e.

         By early 2014, the Town had placed Alston on unpaid leave “with the intent to terminate his employment.” Id. In the summer of the same year, Alston's discrimination lawsuit was dismissed, and he lost his last protection against termination. Id. ¶ 40. Within months of the civil suit's being dismissed, the Town stopped Alston's paycheck, which resulted in his inability to afford basic necessities. Id. ¶ 42. The Town prohibited Alston from working a second job, “on threat of violating Town rules.” Id.

         Despite Alston's completion of an anger management course and his visits with a psychiatrist, the Town did not contact him regarding his return to the fire department. Id. ¶ 41. “On November 24, 2014, after going months without pay, Alston wrote to Selectman Chairman Kenneth Goldstein outlining the many bad decisions that had been made by the Town's administrative staff and request[ing] to be heard pursuant to the Town's anti-discrimination and retaliation policy.” Id. ¶ 43; see also Id. ¶ 32a.

         On December 2, 2014, after the Board ignored Alston's letter, Alston and several of his supporters appeared before the Board and requested that it “investigate Mr. Alston's case, rectify the racist environment in the fire department, and restore Mr. Alston's job.” Id. ¶ 44. The Board did not restore Alston to duty. Id. ¶ 45. Only after a public protest against the Town's treatment of Alston at the January 2015 Dr. Martin Luther King, Jr. celebration was Alston's job temporarily saved. Id.

         The Board assigned Town Counsel, who had been involved with the decision to “force Mr. Alston out of the fire department, ” to oversee a “meaningless and perfunctory third-party ‘review'” of the Director of Human Resources' reports.[10] Id. ¶ 47. Town Counsel “ensured that the third-party reviewer would not interview Mr. Alston or any other witnesses and would not look underneath [the Human Resource Director]'s sham reports.” Id.

         The Town hired Dr. Marilyn Price, a board certified psychiatrist at Massachusetts General Hospital, to evaluate Alston. Id. ¶¶ 49, 50. In a March 2015 report, Dr. Price found that Alston “was not ‘unfit for duty.'” Id. ¶ 50 (emphasis in original). Dr. Price found that Pender's use of a racial slur made Alston question how he was perceived by other firefighters and raised concerns as to whether they would “have his back” in dangerous situations. Id. ¶ 51. Dr. Price also found that the Town's “swift promotion” of Pender after Alston reported the voicemail incident resulted in harm to Alston, “and that the Town needed to modify the work environment to reduce Mr. Alston's level of stress and restore [his] trust in his fellow [firefighters].” Id. ¶ 52. A second psychiatrist, retained by Alston, likewise found that Alston “was otherwise fit for duty, but that the racial environment in the [BFD] was too hostile for [Alston] to safely return to work.” Id. ¶ 53.

         Despite the Town psychiatrist's recommendation that the Town develop a plan that would allow Alston to return to work, the Board “acted in bad faith, and pursuant to the Policy, by refusing to take any reasonable steps to rectify the hostile work environment in the fire department.” Id. ¶¶ 49, 54. According to Alston, the Board never intended to work with him to ensure that he would feel safe returning to work, and instead, intended to drive him out of the fire department and the Town for protesting racial discrimination. Id. ¶¶ 59, 64. It was the Board's goal to maintain “an environment in Brookline in which Black people and their supporters are afraid to speak out about racial discrimination for fear of retaliation.” Id. ¶ 59.

         On February 16, 2016, in a meeting closed to the public, the Board, without affording Alston the opportunity to be heard, terminated Alston's paid administrative leave for failure to comply with a return to work plan. Id. ¶ 60. On October 5, 2016, at a public meeting held at Alston's request, the Board, by unanimous vote, formally terminated his position with the BFD. Id. ¶ 61. In so doing, the Board adopted the recommendation of an outside hearing officer paid for and selected by the Town. Id. ¶ 63. The hearing officer “heard no witnesses in support of Mr. Alston's termination and . . . simply summarized, often unfairly, Dr. Price's report and certain correspondence from the Town.” Id. Alston contends that “Mr. Lampke[11] falsely claimed that Mr. Alston had not cooperated with the Town's efforts to return him to duty, which the [Board] knew was not true.” Id.

         While no justification for the decision to terminate Alston was provided at the public meeting, the Board authorized Town Counsel to issue a press release that “falsely implied that the Board had terminated Mr. Alston because of drug use, violence, and a refusal to work with [the Town] to return to duty.” Id. ¶ 62. “Although the [Board] knew this innuendo was false, Board members expected and tacitly encouraged their unofficial surrogates, including advisory committee member Fred Levitan, to use it to smear Mr. Alston privately and on social media.” Id.

         In sum, Alston alleges that he has been persecuted since he reported the voicemail incident in 2010, id. ¶ 32, and that “[b]y failing to properly sanction Lieutenant Pender's conduct and by promoting him in 2010, 2013, and 2016, the [Board] encouraged firefighters to take the position that Mr. Alston's complaint was meritless, personal to Mr. Alston only, and did not relate to a serious violation of the firefighters' code of conduct that affected all firefighters.” Id. ¶ 32d. Alston asserts that “[e]ach defendant knows that Lieutenant Pender called Mr. Alston a racial slur, failed to take responsibility for it in subsequent conversations with Mr. Alston, and blamed Mr. Alston for creating a problem by reporting the slur. The defendants have concealed this knowledge from other firefighters in the Brookline fire department.” Id. ¶ 32b.

         B. The Structure of Town Government.

         The Town government is headed by the board of selectmen, which is comprised of five elected members, and the town meeting. Id. ¶ 3. The selectmen are the chief elected and executive officers of the Town “with overall responsibility for supervising Town affairs.” Id. ¶ 4. The Town operates under a “weak chief” charter, which means that the Board serves as the police and fire commissioner for the Town:

The Selectmen are the ultimate decision-makers with respect to the hiring, firing, promotion, demotion, and discipline (Selectmen must approve suspensions longer than 5 days) of Brookline police officers and firefighters. The Selectmen have the authority to hire and fire the town administrator, the town counsel, the director of human resources, the police chief, the fire chief, and other department heads. The Selectmen appoint members of Town boards and commissions, including the Town's Diversity, Inclusion, and Community Relations Commission [] and the prior Human Relations Commission. The Selectmen are responsible for adopting and overseeing town administrative policies, including the Town's anti-discrimination and retaliation policy, and representing the Town of Brookline in lawsuits, as plaintiff and defendant. The Chair of the Brookline Board of Selectmen sets the agenda for the Board and communicates regularly with the administrative staff, including the town counsel, human resources director, and the town administrator. The Selectmen frequently appoint and serve on ad-hoc committees to address Town issues.

Id.

         C. The Custom.

         According to Alston, the Town has been plagued by “a deeply embedded [p]olicy of elevating white people and subordinating Black people” for many years. Id. ¶¶ 64, 67. The custom is enforced by the Board through its agents in the Town administration. Id. ¶ 65.

         1. Effect on Housing Demographics.

         Alston contends that the custom has affected the racial makeup of the Town's population compared to neighboring Boston.[12] Id. ¶ 67. He notes that in 2013 the Town found that it was likely that racial discrimination was occurring in its sale and rental housing markets. Id. ¶ 68. Despite these findings, the Town does not conduct fair housing testing or otherwise enforce its fair housing bylaw. Id. Plaintiff asserts that the Town has been aware of these problems in the housing market for many years. Id. ¶¶ 68, 69.

         2. Effect on Employment.

         a. Composition of the Town Workforce.

         According to Alston, the custom's effects can be seen in the racial composition of the Town's employees. Many white employees have multi-generational employment legacies and there are “kinship networks” across the municipal workforce. Id. ¶ 70. In the 1970s, federal court orders forced the Town to hire Black police officers and firefighters. Id. ¶ 71. Despite these orders the Board has maintained a virtually all-white command staff in both departments. Id. The only Black lieutenant to serve in the Brookline police department (BPD) was forced to file an action with the MCAD after the Board delayed his promotion, id. ¶ 72; there have only been three Black lieutenants in the history of the BFD and no higher ranking officers. Id. ¶ 73. According to reports commissioned by the Town in 2015 and 2016, Black police officers and firefighters do not feel that their work is valued the same as the work of their white counterparts. Id. ¶ 74.

         The third amended complaint asserts that this same disparity can be seen in the Town department-head positions because the Board has reserved these positions for white people.[13] Id. ¶ 75. In an effort “[t]o conceal its opposition to racial equality and to maintain the facade of compliance with civil rights laws, [the Town] from time to time establishes committees, working groups and commissions whose nominal charge is to investigate racial inequality, prepare reports, and propose action.” Id. ¶ 78. These bodies have never been given the authority to rectify racial discrimination in the Town. Id.

         b. Treatment of Town Employees.

         Alston offers many examples of how the custom has allegedly produced unjust results in employment matters based on the race of Town employees.

         In 2005, a white employee in the department of public works (DPW) was convicted of assault with a dangerous weapon and intimidation of a witness, but suffered no adverse employment consequences. Id. ¶ 80. Six years later, the Town promoted this DPW employee. Id. ¶ 81. The DPW employee resigned in 2014 after challenging the Town's failure to promote him a second time. Id. ¶ 82. The Town did not assert the DPW employee's criminal convictions as a basis for denying the promotion. Id.

         From 2006 to 2009, a Black employee in the parks department was racially harassed by supervisors and his fellow employees. Id. ¶ 96. The Director of Human Resources conducted a “sham investigation” into the employee's complaint and denied it. Id. ¶ 97. The employee filed a complaint with the MCAD. Id. ¶ 98. In 2009, the MCAD found probable cause “that the Town had fostered a racially hostile environment.”[14] Id. The Town did nothing to address the racial climate. Id.

         In 2007, the Town promoted a white employee to a senior administrative position over a Black employee with superior qualifications. Id. ¶ 83. A Town Meeting member raised questions to the Board about the hiring decision. Id. ¶ 84. In response to the Town Meeting member's inquiry, an unidentified selectman met privately with the member and disparaged the competency of the Black employee. Id. ¶ 85. In so doing, the selectman referenced negative comments in the Black employee's personnel file, comments of which the employee was not aware because the employee's supervisor had secretly inserted them in the employee's file without him or her[15] being made aware of them. Id. ¶¶ 85, 86.

         In 2007, BPD brought a criminal assault charge against a Black Town Meeting member, and Town Counsel[16] banned that member from Town hall, because the Black Town Meeting member objected to a white Town official's rudeness to a senior citizen following a public meeting. Id. ¶ 99. The BPD officer who recommended the criminal charge was the nephew of the white Town official. Id. ¶ 100. The charges were dropped, but the Town failed to sanction BPD, the Town official, or Town Counsel for their “misconduct.” Id. ¶ 101. The Board appointed an ad hoc committee to review the matter, “but instructed the committee to make no findings about the incident.” Id. ¶ 104. The chief of police subsequently promoted the BPD officer who recommended the charge and appointed him to head the internal affairs department, which is tasked with investigating citizen complaints against the police. Id. ¶ 102. According to Alston, the Town's actions “defamed the Black [T]own [M]eeting member by creating the innuendo that he had done something criminal, inappropriate, or otherwise out of bounds.” Id. ¶ 103.

         In late 2007, in an effort to shield itself from charges of racism after two Black employees filed racial discrimination claims with the MCAD the previous year, the Town hired a Black woman as the director of the Town's early childhood education center, which is run by the recreation department. Id. ¶ 87. Parents and staff did not approve of the new director and requested that the head of the recreation department terminate the director or force her to resign. Id. ¶ 88. “The department head did not support the director, and town counsel began to investigate pretexts on which to fire her.” Id. ¶ 89. In early 2008, the head of the recreation department conducted a meeting for parents and staff, the purpose of which was to persuade the director to resign. Id. ¶ 90.

         The day after the meeting, an unidentified individual left a bomb threat that contained a racial slur in the director's work mailbox at the center. Id. ¶ 91. In response, Town Counsel coordinated a “sham investigation” with the police that yielded no suspects. Id. ¶ 92. The Town then fired the director for “a pre-textual reason that it had been aware of before the bomb threat.” Id. ¶ 93. To avoid potential liability for discrimination, the Town hired another Black woman to head the center. Id. ¶ 94. This individual subsequently left a year later “because of the hostile racial climate at the center.” Id. The Town never addressed the racial climate at the center, and despite inquiry from a parent with children at the center regarding the two Black directors' departures, the Board never investigated the issue. Id. ¶¶ 94, 95.

         In 2008, the Board appointed a white woman as a BPD officer over a Black woman with a higher score on the civil service exam. Id. ¶ 105. The white applicant was a Brookline High School graduate, a Brookline resident, and the daughter of a BFD firefighter. Id. The Black applicant was also a Brookline High School graduate and a resident of Brookline, but had no relatives employed by the Town. Id. To justify hiring the white applicant with the lower score, “the Town manufactured a pretext.” Id. ¶ 106. The Town claimed that the Black applicant was bypassed due to an inconsistent work history and because she stated on her application that she had never used drugs, but admitted in her interview to having smoked marijuana as a teenager. Id. The applicant told the Town and the interviewers that she understood the question on the application to have only pertained to her drug use as an adult. Id. In 2013, the Black applicant made inquiries to the Town regarding her application, to which officials from the Town responded by discouraging her from examining her application by falsely suggesting that it contained damaging information about her. Id. ¶ 107. Town Counsel also falsely claimed that the Black applicant had scored lower on the civil service exam than the white woman who was ultimately hired. Id.

         In 2008, a white employee of the DPW, who was hired by the Town in 2003 shortly after having completed a two and one half year sentence in the house of correction, was arrested for possession of heroin. Id. ¶¶ 108, 111. This employee allegedly used heroin and drank frequently while employed by the Town. Id. Despite his being arrested, the Town took no disciplinary measures against the white employee and did not make him enroll in a substance abuse program or subject him to drug or alcohol testing. Id. ¶ 109. This same employee was fired by his previous employer in 2000 after being arrested for armed robbery while masked. Id. ¶ 110. According to Alston, “the white [DPW] employee's misconduct was an open secret among Town employees.” Id. ¶ 112.

         In 2010, a citizen brought a criminal complaint against four white BPD officers for assault and battery with a dangerous weapon. Id. ¶ 113.[17] Despite the victim's being taken to the hospital via ambulance for broken ribs, no officer was fired. Id. The officers in question received two-day suspensions and wrote letters to the police chief apologizing for exercising poor judgment. Id. ¶ 114. Six years later, in 2016, one of the officers involved in the 2010 incident was promoted to Sergeant by the Board despite the existence of an unresolved racial discrimination complaint against him. Id.

         On November 4, 2012, BPD Sergeant Robert Murphy, the husband of Town Counsel, released a white man from the BPD station who had been arrested for driving under the influence. Id. ¶ 119. Sergeant Murphy had the white man's car towed back to the station and then allowed the man to drive away. Id. ¶ 120. As part of this same incident, Sergeant Murphy ordered the arresting officer to throw out several containers of alcohol that had been collected at the scene as evidence. Id. ¶ 121. After learning of the incident, the chief of police disciplined Sergeant Murphy with a written reprimand. Id. ¶ 122. The third amended complaint notes that “[s]everal years earlier, Mr. Murphy, while still an officer, received no consequences for not reporting, and concealing with the help of his sister, [who was also a] BPD officer, that his department issued firearm had gone missing. In fact, he was subsequently promoted to Sergeant by the [Board].” Id. ¶ 123.

         In 2013, the Town convened a search committee to identify candidates to fill the position of head of the planning department. Id. ¶ 124. According to Alston, the planning department is “responsible for serving [the Town]'s low-income residents by administering [the Town]'s community development block grant funds.” Id. The Town selected only white individuals to serve on the six-person search committee “and did not highlight the need for a candidate with expertise in working with and for low income residents.” Id. ¶ 125. It is Alston's position that “[t]he most qualified applicant for the department head position was a Black man with a master's degree from Harvard, but the Town did not offer him the job because it had identified a preferable, although less qualified, white woman candidate with connections to the former [T]own administrator.” Id. ¶ 126.

         On August 26, 2014, a white BFD firefighter was arrested for allegedly driving 114 mph while under the influence of alcohol. Id. ¶ 127. The Town protected the white firefighter by refusing to confirm his employment with BFD to the press. Id. This same firefighter previously had been arrested for assault and battery and for driving under the influence in 2012. Id. ¶ 128. “Despite this pattern of arrests, the white firefighter has been protected by the Town from termination.” Id. ¶ 129.

         In November 2015, a white employee of the DPW threatened to shoot people in the department. Id. ¶ 130. In response, the Town posted police protection at the department and conducted an investigation. Id. “Because the employee was white, however, the Town claimed that the threat was a misunderstanding. The employee was not subjected to the same procedures as Mr. Alston.” Id.

         On December 7, 2015, Sergeant Robert Lawlor, a white BPD officer, “was protected from any substantial disciplinary action after he told Prentice Pilot[18] to do ‘n***** jumping jacks.'” Id. ¶ 115. In response, the Board hired a consultant who claimed that when Sergeant Lawlor said the word “naked” it sounded like “n*****.” Id. ¶ 116. The consultant did not confront Sergeant Lawlor with the fact that he told the initial police investigation that he said “nude.” Id. ¶ 117. According to Alston, “[t]he [Board] [is] aware that Sergeant Lawlor and other employees use the n-word but tacitly approve its use to maintain racial subordination.” Id. ¶ 118.

         D. Diversity and Anti-Discrimination Commissions.

         1. The Human Relations Commission.[19]

         In May 2010, just days before the voicemail incident, the Town Meeting passed a resolution calling for the Town to “improve its diversity practices by (1) issuing an annual diversity report, (2) appointing a committee to examine and improve the Town's diversity practices, and (3) holding an annual Dr. Martin Luther King, Jr. celebration.” Id. ¶ 131. The Board only supported the third prong of this resolution, and, during discussions of the resolution, Selectwoman Daly “cautioned that the author of the resolution should not expect [the Town] to ‘look like Boston.'” Id. ¶ 132.

         Selectwoman Mermell was assigned by the Board to chair the Dr. Martin Luther King, Jr. celebration committee. Id. ¶ 133. “[Selectwoman] Mermell prevented the committee from examining the Town's diversity practices, and the [Board] instead assigned [the Director of Human Resources] to write non-substantive annual reports regarding the racial composition of the workforce and the town's diversity practices, which did not include any data regarding the Town's handling of racial discrimination complaints.” Id. The Board discontinued the annual reports after three years. Id. ¶ 134.

         In 2011, concerns raised by Black employees with respect to racially disparate treatment by the Town were brought to the Board's attention. Id. ¶ 135. In response, the chair of the Board, Selectwoman DeWitt, announced at a Board meeting that Selectwoman Mermell was going to chair an ad hoc committee to examine and update the Town's workforce diversity policies. Id. ¶ 135. Neither selectwoman intended to do anything to ameliorate the employees' concerns. Id. Selectwoman Mermell “deliberately did not appoint anyone to the ad-hoc committee and did not convene any meetings[, ]” and the Board “took no action to correct the racially disparate treatment that had been repeatedly brought to [its] attention.” Id. ¶ 136.

         At the end of 2012, the Human Relations Commission[20] started to investigate racial discrimination in the Town's workforce. Id. ¶ 137. As part of this process, the commission inquired about Alston's case. Id. The Human Relations Commission was governed by the Town bylaws, which empowered the Commission to investigate “complaints charging discrimination . . . in connection therewith by any town official or employee, ” id. ¶ 139 (quoting Section 3.14.3(g) of the bylaws), and required all departments of the Town to cooperate fully with the Commission. Id. ¶ 140 (quoting Section 3.14.5 of the bylaws).

         In 2013, the Board blocked the Human Relations Commission from enforcing its mandate by: intentionally depriving the Commission of a quorum “by refusing to appoint two Black men and a Latino man with civil rights experience to seats vacated by resignations;” opposing a resolution in the Town Meeting that requested that the Board lift the moratorium on appointments and appoint the three applicants of color; and by naming Selectwoman Daly to an ad hoc committee on diversity, equal employment opportunities, and affirmative action to develop a warrant article to abolish the Human Rights Commission and eviscerate the Town's anti-discrimination bylaw. Id. ¶ 141; see also Id. ¶ 38 (addressing the Board's alleged failure to appoint commissioners).

         In the fall of 2013, Alston's case was reported publicly for the first time, and the Board refused to provide to the Human Rights Commission the Town's investigatory reports concerning Alston's case and prohibited the fire chief from meeting with the commission about the racial climate in the fire department. Id. ¶¶ 38, 142. Throughout Alston's interactions with the Town, the Town fought to prevent the Human Relations Commission from fulfilling its charge. Id. ¶¶ 37, 141.

         2. Diversity, Inclusion, and Community Relations Commission.

         In the spring of 2014, the Board “had [the Town Meeting] abolish the [Human Relations] Commission and replace it with the toothless [Diversity, Inclusion, and Community Relations (DICR)] Commission, which was stripped of any authority to rectify racial discrimination in the [Town] workforce.” Id. ¶ 39; see also Id. ¶ 143. The DICR Commission was promulgated under Article 3.14 of the Town's bylaws. Id. ¶ 143.[21]

         In December 2014, the Board promised to “work with the newly constituted DICR Commission to conduct a Racial Climate Review in the fire department and ‘seek out and eradicate any discrimination or unfairness that we hear about.'” Id. ¶¶ 48, 144. Alston contends that the Board failed to follow through on its December 2014 promises. Id. ¶¶ 48, 150. The Board repeatedly refused to meet with Alston to discuss the scope of the Racial Climate Review, including meetings requested by others on Alston's behalf. Id. ¶ 55.

         Six months after promising to work with the DICR Commission, the Board “stripped the DICR Commission of responsibility for supervising the Racial Climate Review and directed that it not include any meaningful effort to examine, rectify, and improve the racial climate in the fire department.” Id. ¶ 56. The final Racial Climate Review report failed to include any interviews with Black firefighters, and only five out of the fifteen Black firefighters responded to written survey questions. Id. ¶ 57. As part of its conclusion, the report stated that “Black respondents in the fire department ‘believed it was not clear to whom to report harassment incidents' and that ‘their work is not valued by others.'” Id. The report did not include any concrete steps for change. Id.

         At a public meeting of the DICR Commission held on January 16, 2015, [22] Selectman Greene refused to discuss the final Racial Climate Review report because Alston was present. Id. ¶¶ 58, 145-146. At this same meeting, two Black police officers stated that the Town had failed to rectify the racially hostile environment present in the BPD, which included the failure to discipline members of the command staff who used racial slurs. The officers said they feared retaliation for coming forward with their complaints and neither has returned to work since. Id. ¶¶ 58, 147.

         On January 5, 2016, the Board held a meeting to address public complaints about racism in the Town including those made by the two Black BPD officers. Id. ¶ 148. At the meeting, the chair of the DICR Commission read a statement, which had been approved unanimously by the Commission, in which the Commission accused the Board of allowing a culture of racism to permeate the Town's hiring practices and requested that the Board take action to ameliorate this issue. Id. ¶ 149. Alston asserts that the Board has not taken up the DICR Commission's charge. Id. ¶ 150.

         III. Standard of Review.

         A Rule 12(b)(6) motion to dismiss challenges a party's complaint for failing to state a claim. In deciding such a motion, a court must “‘accept as true all well-pleaded facts set forth in the complaint and draw all reasonable inferences therefrom in the pleader's favor.'” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (quoting Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 5 (1st Cir. 2011)). In order to survive a motion to dismiss under Rule 12(b)(6), the plaintiff must provide “enough facts to state a claim to relief that is plausible on its face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The “obligation to provide the grounds of [the plaintiff's] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (internal quotation marks and alteration omitted). The “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” and to cross the “line from conceivable to plausible.” Id. at 555, 570.

         In this case, the Town does not ask the court to dismiss any claim of municipal liability asserted in the third amended complaint. The only claim the Town moves to dismiss is the claim that bylaw 3.14 is unconstitutional, and the Rule 12(b)(6) standard will be applied to that claim. For the remaining claims, the Town seeks only to narrow the evidence that Alston may use to establish municipal liability. To the extent the court recommends striking factual allegations, rather than claims, the court does so under Rule 12(f), under which “[t]he court may strike from a pleading . . . any redundant, immaterial, impertinent or scandalous matter.”

         IV. Discussion.

         As stated above, the Town defendants do not seek dismissal of claims relating to alleged racially-motivated actions taken against Alston, including claims “arising from an alleged hostile work environment and his termination . . . .” (#111 at 1.) The motion is limited to allegations concerning: 1) “[t]he portions of the Complaint relating to policy choices by the Town regarding the power and jurisdiction” of Town committees and the asserted unconstitutionality of Article 3.14 of the Town bylaws; and 2) allegations of “alleged discrimination against third parties by unrelated actors spanning decades.” Id. at 3.

         Alston's opposition to the Town defendants' pending motion consists of: 1) his Rule 12 procedural bar argument which is without merit, see supra n.7; 2) a two-paragraph defense of his assertion that Article 3.14 of the Town bylaws is unconstitutional; and 3) the contention that because this court and the Town defendants have acknowledged that some of Alston's claims will survive the motion to dismiss, he should therefore be entitled to conduct discovery on all his allegations. See #133. Alston makes no effort to rebut the Town defendants' argument that many of the examples he sets out to establish the municipal custom are not sufficiently connected to the harm he allegedly suffered, and he fails to address the objections raised by the Town that many of the examples in the third amended complaint assert harms perpetrated by actors over whom the Board has no control.[23]

         As described below, the court finds that certain allegations in Alston's third amended complaint are irrelevant to his claims and recommends that they be stricken. Other allegations about which defendants complain are sufficiently related to Alston's claims that they should not be stricken at this juncture. The court finds, further, that the Brookline bylaw complained of is not unconstitutional, and recommends that the corresponding claim be dismissed.

         A. The Law.

         1. 42 U.S.C. § 1981.

         Section 1981 prohibits racially discriminatory impairment of one's right “to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” Title 42 U.S.C. § 1981(a). The statute defines “make and enforce contracts” as “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” Title 42 U.S.C. § 1981(b). In the First Circuit, “‘[t]o state a claim under this statute, a plaintiff must show (1) that he is a member of a racial minority, (2) that the defendant discriminated against him on the basis of his race, and (3) that the discrimination implicated one or more of the activities enumerated in the statute.'” Odunukwe v. Bank of Am., 335 Fed.Appx. 58, 61 (1st Cir. 2009) (quoting Garrett v. Tandy Corp., 295 F.3d 94, 98 (1st Cir. 2002)).

         Section 1981 has been interpreted to cover various forms of employment discrimination:

[Plaintiff] grounds her claims in both Title VII and 42 U.S.C. § 1981. The same legal framework applies to both statutory bases. . . . This framework allows for distinct claims of disparate treatment, retaliation, and hostile work environment, all of which [plaintiff] alleges, and all of which fit into the familiar McDonnell Douglas burden-shifting scheme.

Bhatti v. Trustees of Boston Univ., 659 F.3d 64, 70 (1st Cir. 2011) (internal citation and footnote omitted) (affirming summary judgment in favor of employer).

         Under the McDonnell Douglas burden-shifting scheme, “a plaintiff bears the initial burden of proffering evidence sufficient to establish a prima facie case of discrimination.” Cherkaoui v. City of Quincy, 877 F.3d 14, 24 (1st Cir. 2017); Conward v. Cambridge Sch. Comm., 171 F.3d 12, 19 (1st Cir. 1999) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). The defendant then has the burden of articulating a legitimate, nondiscriminatory reason for the adverse employment action. Cherkaoui, 877 F.3d at 24 (citations omitted). If defendant accomplishes this task, the plaintiff then has the burden of offering “evidence that [defendant's] explanation is pretextual and that discriminatory animus prompted the adverse action.” Id. (quotation marks and citations omitted).[24]

         2. 42 U.S.C. § 1983.

         Section 1983 “is a vehicle through which individuals may sue certain persons for depriving them of federally assured rights, such as the First Amendment's right to free speech . . . .” Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir. 2008). A claim under § 1983 has two essential elements: the defendant must have acted under color of state law, and his or her conduct must have deprived the plaintiff of rights secured by the Constitution or by federal law. Id. “The second element requires the plaintiff to show ‘that the [defendant's] conduct was the cause in fact of the alleged deprivation.'” Id. (quoting Rodriguez-Cirilo v. Garcia, 115 F.3d 50, 52 (1st Cir. 1997)).

         The federally protected rights at issue here are (1) Alston's rights under § 1981 to be free from racial discrimination in his employment, outlined above, (2) Alston's First Amendment rights to freedom of speech and to petition the government for redress of grievances, and (3) Alston's Fourteenth Amendment right to equal protection. (See #108 ¶¶ 1, 193-95.)

         “When a government actor retaliates against someone for exercising constitutionally protected First Amendment rights, that individual has a cognizable retaliation claim pursuant to § 1983.” Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d 134, 141 (1st Cir. 2016). “The First Amendment protects (among other things) the right to free speech and the right to petition all branches of the government.” Id. The elements of a First Amendment free speech retaliation claim in a case involving a government employee are (1) whether the employee spoke as a citizen on a matter of public concern, (2) whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public, and (3) whether the plaintiff can show that the protected expression was a substantial or motivating factor in the adverse employment decision. Barton v. Clancy, 632 F.3d 9, 27 (1st Cir. 2011) (quoting Curran v. Cousins, 509 F.3d 36, 45 (1st Cir. 2007)).

         A claim of retaliation for petitioning the government for redress of grievances can take many forms, see Powell v. Alexander, 391 F.3d 1, 16 (1st Cir. 2004) (citing cases), including termination of an employee. See Fishman v. Clancy, 763 F.2d 485, 486-87 (1st Cir. 1985) (finding attempts to terminate public school teacher for filing grievances and engaging in other First Amendment activities cognizable under § 1983). Such a claim is governed by the two-part burden-shifting analysis established by the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977). A plaintiff must first show by a preponderance of the evidence that he “engaged in constitutionally protected conduct, and that the conduct was a substantial or motivating factor for the adverse employment decision.” Padilla-Garcia v. Guillermo Rodrigues, 212 F.3d 69, 74 (1st Cir. 2000).[25]

         A plaintiff makes out a claim for violation of his Fourteenth Amendment right to equal protection under § 1983 by showing ‘“that (1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.'” Freeman v. Town of Hudson, 714 F.3d 29, 38 (1st Cir. 2013) (quoting Rubinovitz v. Rogato, 60 F.3d 906, 909-910 (1st Cir. 1995)). A plaintiff in a disparate treatment race discrimination case must show that others similarly situated to him in all relevant respect were treated differently by the employer. Conward v. Cambridge Sch. Comm., 171 F.3d 12, 20 (1st Cir. 1999) ...


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