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Riley v. Massachusetts Department of State Police

United States District Court, D. Massachusetts

May 24, 2018

ORLANDO RILEY, Plaintiff,
v.
MASSACHUSETTS DEPARTMENT OF STATE POLICE, Defendant.

          MEMORANDUM AND ORDER

          DENISE J. CASPER UNITED STATES DISTRICT JUDGE

         I. Introduction

         Plaintiff Orlando Riley (“Riley”) filed a complaint against the Massachusetts Department of State Police (“MSP”), claiming that MSP discriminated against him on the basis of his race when it disqualified him from admission to the 2011 MSP Academy class. D. 11. MSP has now moved for summary judgment, D. 118, and to strike the expert report of Joel P. Wiesen, D. 123. Riley has also moved for additional discovery pursuant to Fed.R.Civ.P. 56(d). D. 128. The Court heard arguments on the pending motions and took the matters under advisement. D. 163. For the reasons discussed below, the Court DENIES MSP's motion for summary judgment, D. 118, DENIES Riley's Rule 56(d) motion as moot, D. 128, and DENIES MSP's motion to strike the expert report of Joel P. Wiesen, D. 123.

         II. Standard of Review

         A. Motion for Summary Judgment

         Summary judgment is granted when there is no genuine dispute as to any material fact and the undisputed facts establish that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law.” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). A genuine dispute of material fact occurs when the factual evidence “is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party carries the burden of establishing the absence of a genuine dispute of material fact and that it is entitled to judgment as a matter of law. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000). If the movant satisfies this burden, the non-moving party may not merely refer to allegations or denials in her pleadings. Anderson, 477 U.S. at 256. Instead, he “must, with respect to each issue on which he would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor.” Borges ex rel. S.M.B.W. v. Serrano- Isern, 605 F.3d 1, 5 (1st Cir. 2010). “As a general rule, this requires the production of evidence that is ‘significant[ly] probative.'” Id. (quoting Anderson, 477 U.S. at 249) (alteration in original). The Court must “view the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).

         B. Motion to Strike Expert Testimony

         Under Fed.R.Evid. 702, a qualified expert witness may testify “in the form of an opinion, or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Fed.R.Evid. 702; see United States v. Mooney, 315 F.3d 54, 62 (1st Cir. 2002). This rule “assign[s] to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.” Cipollone v. Yale Indus. Prods., Inc., 202 F.3d 376, 380 (1st Cir. 2000) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993)). “[T]he district court must perform [this] gatekeeping function by preliminarily assessing ‘whether the reasoning or methodology . . . properly can be applied to the facts at issue'” by examining the several factors on a case-specific inquiry. Seahorse Marine Supplies, Inc. v. Puerto Rico Sun Oil Co., 295 F.3d 68, 80 (1st Cir. 2002) (quoting Daubert, 509 U.S. at 592-93). If the Court determines that the expert's testimony is reliable and relevant, “the traditional and appropriate means of attacking shaky but admissible evidence” is through “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” Milward v. Acuity Specialty Prods. Grp., Inc., 639 F.3d 11, 15 (1st Cir. 2011) (quoting Daubert, 509 U.S. at 590).

         III. Factual Background

         The following facts are undisputed unless otherwise noted. Riley, who is African-American, has been employed as police officer with the New Bedford Police Department (“NBPD”) since 2002. D. 160 ¶¶ 1, 2. In April 2009, Riley sat for the MSP written examination, a prerequisite for obtaining an appointment with the MSP Academy (the “MSP Academy”), and received a raw, passing score of 100. D. 160 ¶ 88. In February 2011, Riley received a notification of eligibility thereby requesting confirmation of his interest to compete for the Academy class scheduled to commence in October 2011. D. 160 ¶ 89. MSP then provided Riley with a conditional offer of employment as Academy Trainee. D. 160 ¶ 90. In May 2011, Riley completed the application and submitted it to MSP the following day. D. 160 ¶ 91. The application contained a signature page which required Riley to certify that “I have read each question asked of me and understand each question. My statements on this form and any attachments to this form are true and correct to the best of my knowledge and belief are made in good faith.” D. 160 ¶ 93. Riley signed and dated this page. Id. On May 2, 2011, Riley submitted a required notarized agreement certifying to the following: “I understand that false or misleading information given herein or during interview(s) will result in my being disqualified from further consideration and/or terminated from employment with the Department of State Police.” D. 160 ¶ 94. On question No. 8 of the application (which asked for the schools the applicant was attending or had attended beyond junior high school), Riley failed to list all of the high schools he attended. D. 160 ¶ 98. On question No. 20(A) of the application (which asked an applicant to “list ALL of the [police or law enforcement] departments you have applied to”), Riley did not disclose his 1999 unsuccessful applications to the Providence Police Department (“PPD”) nor to the New Bedford Police Department (“NBPD”) D. 160 ¶¶ 101, 102. Question No. 20(E) asked, among other things, whether an applicant had ever been “a subject of an internal investigation or citizen's complaint, ” to which Riley checked a box for “NO, ” but also added, in the supplemental space provided on the application, that he had “never been a subject of investigation within my police department. The only time I was interviewed by my internal affairs unit was as a witness.” D. 160 ¶ 104; D. 121-17. The parties dispute whether Riley was aware at the time he answered this question that he was a subject of a NBPD internal affairs investigation (the “Soares investigation[1]”). D. 160 ¶ 105. Riley contends that he learned of the investigation on May 24, 2011 and prior to that he was told he was merely a witness to the investigation. D. 160 ¶¶ 105, 107.

         The background investigation is a phase in the MSP's hiring process that is organized and administered by the MSP's Certification Unit. D. 160 ¶ 70. This phase was conducted by MSP troopers, each of whom were assigned between five to ten candidates. D. 160 ¶ 71. Trooper Robert Lima (“Lima”) was assigned by the MSP to conduct Riley's background investigation. D. 160 ¶ 108. Lima has been employed by the MSP since 2006. D. 160 ¶ 109. Lima conducted the background investigation between July and September 2011. D. 160 ¶¶ 108, 115. On July 7, 2011, Lima contacted Riley via telephone to initiate a conversation and informed Riley to reach out to him if he “had any question about the material.” D. 160 ¶ 116. The parties dispute whether the MSP made it clear that errors discovered after completion of the application should be corrected over the phone and whether waiting to disclose such errors during the in-person interview would be later be perceived “untruthful.” D. 160 ¶¶ 117 - 119. On August 17, 2011, Riley contacted Lima via email making him aware there had been changes to the contact information of the references he previously provided on his application. D. 160 ¶ 123. Riley did not indicate in this email that he had learned that he was a subject of the Soares investigation. D. 160 ¶ 125. On or about August 22, 2011, Riley sought to review his NBPD personnel file, however, the parties dispute Riley's reasons for doing so. D. 160 ¶ 126. MSP asserts that Riley “was worried that MSP might consider the Soares investigation to be a ‘negative.'” Id. Riley, on the other hand, maintains that he simply “wished to confirm that no disciplinary information had been placed in it as he had assured would be the case.” Id. On August 22, 2011, Riley again D. 160 ¶¶ 29-34; D. 121-1-. Riley disputes that the investigation was exclusively and primarily focused on him. D. 160 ¶ 34. emailed Lima to provide the name of his “RISP [Rhode Island State Police] background investigator, ” but did not mention the Soares investigation. D. 160 ¶¶ 127, 128.

         Sometime prior to September 1, 2011, Riley also completed a questionnaire provided to him by Lima. D. 160 ¶ 129. This questionnaire similarly required applicants to certify that all statements are true and complete, which Riley did. D. 160 ¶¶ 132, 133. The parties dispute that Riley understood this certification to apply to the questionnaire only and not the application he had completed several months earlier. D. 160 ¶¶ 134, 135. Riley asserts that his answers on the questionnaire are not material facts since they were not the basis for MSP's rejection of his application. D. 160 ¶¶ 132-135, 138-141. Pursuant to a written release signed by Riley, Lima visited NBPD and reviewed Riley's personnel and internal affairs files on September 1, 2011. D. 160 ¶ 142. In doing so, Lima uncovered a June 18, 2010 Memorandum[2] with “[Chief] Provencher's further handwritten annotations from May 24, 2011.” D. 160 ¶ 143. Upon discovery of this Memorandum, Lima believed that Riley had “received a written reprimand based on the Soares Investigation.” D. 160 ¶ 145. The parties dispute whether Lima knew the documentation was merely for a recommendation for a written reprimand and not in fact a written reprimand. Id.

         The parties also dispute whether Riley ever disclosed that he had later learned he was a subject of the Soares investigation. D. 160 ¶ 151. Riley maintains that he did disclose such information when Lima and Riley reached the topic of the investigations during the in-person interview. Id. When Lima asked why Riley had not disclosed this information until this point in the process, he explained “because there was no discipline involved and I would rather discuss this issue with you during my interview so that I could tell you in detail about the incident and there wouldn't be any misunderstandings.” D. 160 ¶ 153. When Lima then asked why Riley did not discuss the incident on his application, Riley explained that he completed the application on May 3, 2011 and the “[C]hief did not make a decision on [the] matter until May 24, 2011.” D. 160 ¶ 155. He added that he was not aware the Soares “investigation was still pending because it was so long in between the time when [he] first spoke with internal affairs until the time [the] [C]hief closed the investigations.” Id. Riley maintains that Chief Provencher assured him that the incident would not be in his file given that he had not received a reprimand. D. 160 ¶ 159. On September 2, 2011, a NBPD union representative, at Riley's request, contacted Lima to discuss the Soares investigation. D. 160 ¶ 171. This representative informed Lima that “Officer Riley was in fact being truthful in any statement he provided as to not being the subject of an internal affairs investigation and as to not having been informed of any discipline as a result.” Id.

         Lima interviewed Riley for approximately three hours on September 1, 2011. D. 160 ¶ 146. The parties agree that portions of the interview were spent reviewing and correcting mistakes on Riley's application. D. 160 ¶ 147. The parties disagree, however, about Lima's tone and attitude during this interview which Riley characterizes as “suspicious, hostile and condescending” and contends that Lima “spent excessive time repeating the same questions on the same subjects, including challenging Riley's answer that he did not gamble, denigrat[ing] Riley's neighborhood, insinuate[ing] that Riley forged documents, claim[ing] he made mistakes that were not mistakes and repeatedly insist[ing] over Riley's denials that Riley had been reprimanded.” Id. With respect to Riley's neighborhood, Riley contends that after the interview, Lima visited his residence located on the third-floor of an apartment building in New Bedford. D. 160 ¶ 175. When Lima arrived, Riley was not home, however his fiancée answered the door and was surprised that Lima had gotten up to the third floor given that the entry to the building was “usually locked.” D. 160 ¶ 176. According to Riley's fiancée, once inside the apartment, Lima looked around the house and commented that they “might want to get [the] door checked because [they] don't live in the greatest neighborhood.” D. 160 ¶ 177.

         Lima completed his background investigation report (“First Report”) on September 7, 2011. D. 160 ¶ 178; D. 121-27. In the First Report, Lima stated that he learned that Riley had “additional debt” and that Riley had a loan of $65, 000 due to a mortgage Riley took out on a property “that allegedly was cancelled.” D. 121-27 at 9-10. Lima noted in this report that Riley had not provided any documentation indicating that he no longer had this debt and that upon reading the credit report, he learned the property may have gone into foreclosure. Id. Lima also noted that Riley informed him that the mortgage debt had been resolved but that Riley “could not provide any additional documentation to stipulate his claim.” D. 121-27 at 10. Additionally, despite learning otherwise, Lima disclosed in this same section that “a written reprimand was to be placed in [Riley's NBPD] file” as a result of the Soares investigation. D. 160 ¶ 178. Specifically, Lima noted that “[a]t no time did [Riley] list on his application or tell me about the internal investigations where he received a written reprimand.” D. 121-27 at 10. Also in the First Report, Lima talked about Riley's missing high school transcripts. Id. Specifically, Lima mentioned Riley's failure to disclose and provide a transcript for Bishop Stang High School (“Bishop”). Id. Lima noted that he asked Riley about such and that Riley stated he was under the impression that he was only required to produce the transcript for New Bedford High School, the high school from which he had graduated. Id.; D. 162 at 10. According to the First Report, when Lima asked Riley for an explanation, Riley stated he left Bishop due to a “residency requirement.” D. 121-27 at 10. According to Lima, because Bishop is a private school, Riley's answer did not seem plausible so he followed up with the school and spoke with the school's administrative assistant. Id. According to Lima, this source informed him that Riley had not returned the following year as a result of “academic performance.” Id. Riley disputes that he ever told Lima the reason for not returning to Bishop was as result of a “residency requirement.” D. 160 ¶ 165. Instead, Riley states he told Lima he did not return to Dartmouth High School, a public school, for this reason. Id. Moreover, an affidavit from the Bishop administrative assistant attests that she “did not know the reason(s) that [] Riley did or did not return to Bishop [], and [does] not recall having any conversation with Trooper Lima about [] Riley or why he did or did not return to Bishop.” D. 121-40 at 3. In his application, Riley's listed nine references, four of which were colleagues or former colleagues at the NBPD. 160 ¶ P27. In the First Report, Lima stated he “did not find anyone to go record about [Riley's] work performance but only that he was a good guy who was caring and an ‘alright' worker.” D. 121-27 at 7. Riley contends that Lima failed to contact four of the five current and former colleagues including two of Riley's then-current supervisors. D. 160 ¶ P49. Rather, Riley argues, Lima opted to contact two MSP troopers mentioned elsewhere in his application and with whom Lima only was acquainted and were not among his listed references. Id. The MSP does not dispute that Lima contacted at least two of Riley's references consisting of Riley's then-current and former supervisors and the two aforementioned MSP troopers. Id.

         On September 7, 2011, a three-person Review Board consisting of Major Kevin Butler, Major William Christiansen, and Captain Frank McGinn met to consider the applications of a number of candidates. D. 160 ¶ 181. The Review Board considered Riley's application and voted unanimously to disqualify him. D. 160 ¶¶ 181, 182. According to MSP, the Review Board applies “an internal set of guidelines known as the ‘Automatic and Discretionary Disqualifiers.[3]'” D. 160 ¶ 81. Riley contends, however, that the Review Board had “little information beyond that provided by the background investigator and routinely conformed to the background investigator's lead.” D. 160 ¶ 183. By letter dated September 15, 2011, the MSP informed Riley of his disqualification ...


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