United States District Court, D. Massachusetts
OPINION AND ORDER
A. O'TOOLE, JR. UNITED STATES DISTRICT JUDGE.
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.
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.
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.
AND RECOMMENDATION ON TOWN DEFENDANTS' PARTIAL MOTION TO
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.
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) 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.) For the reasons outlined below, the court
recommends that Town Defendants' Partial Motion to
Dismiss (#110) be allowed in part and denied in part.
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.
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.)
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 8 and 20, and that all plaintiffs other
than Alston be required to file new, separate lawsuits.
(#72.) 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.)
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.)
then filed the now-operative third amended complaint. (#108.)
The Town defendants have once again moved to dismiss (#110);
Alston responded in opposition (#133); and the Town defendants
replied (#135). An oral argument on this motion was held
on January 5, 2018.
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.) 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.
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.
Allegations in the Third Amended Complaint.
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)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.
Facts Pertaining to 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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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. 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.
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.
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.
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 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.
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.
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.
The Structure of Town Government.
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
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.
Effect on Housing Demographics.
contends that the custom has affected the racial makeup of
the Town's population compared to neighboring
Boston. 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,
Effect on Employment.
Composition of the Town Workforce.
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.
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. 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.
Treatment of Town Employees.
offers many examples of how the custom has allegedly produced
unjust results in employment matters based on the race of
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.
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.” Id. The Town did nothing to
address the racial climate. Id.
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 being made aware of them. Id.
¶¶ 85, 86.
2007, BPD brought a criminal assault charge against a Black
Town Meeting member, and Town Counsel 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.
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.
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.
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.
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.
2010, a citizen brought a criminal complaint against four
white BPD officers for assault and battery with a dangerous
weapon. Id. ¶ 113. 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.
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.
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.
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.
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.
December 7, 2015, Sergeant Robert Lawlor, a white BPD
officer, “was protected from any substantial
disciplinary action after he told Prentice
Pilot 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.
Diversity and Anti-Discrimination Commissions.
The Human Relations Commission.
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.
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.
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.
end of 2012, the Human Relations Commission 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).
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).
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.
Diversity, Inclusion, and Community Relations
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.
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.
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.
public meeting of the DICR Commission held on January 16,
2015,  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.
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.
Standard of Review.
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,
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
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.
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
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.
42 U.S.C. § 1981.
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)).
1981 has been interpreted to cover various forms of
[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
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).
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
42 U.S.C. § 1983.
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
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.)
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)).
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.
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) ...