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Payne-Callender v. Gavin

United States District Court, D. Massachusetts

September 16, 2019




         By way of her Verified Complaint, G. Renee Payne-Callender, a detective employed by the Boston Police Department (BPD), is suing her superior, Lieutenant Detective Donna Gavin, and the BPD for alleged discrimination based on race, gender, and age (Counts I & II); hostile workplace (Count III & IV); retaliation (Counts V & VI); discrimination based on “sham investigation” (Count VII & VIII); and intentional and negligent infliction of emotional distress (Counts IX and X).[1] Gavin timely removed the case from Suffolk Superior Court to this court on grounds of federal question jurisdiction on June 10, 2019. The court heard oral argument on the defendants' motions to dismiss on September 12, 2019.


         The factual allegations of the Verified Complaint, accepted as true for purposes of deciding defendants' Rule 12(b)(6) motions, are as follows. Payne-Callender is a 56-year-old black woman, and a veteran of the BPD with a decorated career. In 2007, Payne-Callender was assigned to the Human Trafficking Unit of the Family Justice Division of the BPD, a prestigious assignment for which she was highly qualified. In 2009, Gavin became Payne-Callender's immediate supervisor in the Human Trafficking Unit. Because Payne-Callender and Gavin worked separate shifts, Payne-Callender was unable to report to Gavin in person. In September of 2010, after Gavin deliberately refused to answer after-hours phone calls from Payne-Callender, Payne-Callender was reprimanded by then-Deputy Superintendent Kelly Nee for failing to report an incident involving a city councilor. In May of 2011, Gavin complained to Captain Detective Mark Hayes that Payne-Callender had failed to inform her of a request from the State Police seeking assistance in an investigation, even though Payne-Callender had directed the State Police to contact Gavin directly. Gavin stated to Hayes that she could not manage Payne-Callender and did not like Payne-Callender, and received permission from Hayes to transfer Payne-Callender out of the Human Trafficking Unit. Gavin filled Payne-Callender's position with a younger black female detective, who was subsequently replaced by a younger white male detective in less than a year.

         Payne-Callender sought a transfer to the Special Investigations Unit, but it was denied. Thereafter, although Gavin attempted to prevent it, Payne-Callender was transferred to the Crimes Against Children Unit, also a part of the Family Justice Division and housed in the same building as the Human Trafficking Unit. In August of 2014, Gavin unsuccessfully attempted to block Payne-Callender from attending a human trafficking training seminar, on the grounds that Payne-Callender no longer worked in the Trafficking Unit. Also in 2014, Payne-Callender sought to take the sergeant's exam early because of a death in her family, but was told that only officers on active military duty abroad was permitted to take the exam on other than the designated date. She later learned that two male officers, who were not on active military duty, were permitted to take the exam at alternate times.

         On February 14, 2017, the day before a human trafficking training seminar for which Payne-Callender had received an email save-the-date, Gavin uninvited her and a male detective in the Crimes Against Children Unit on the pretext that there was insufficient space. In May of 2017, during an interview in connection with internal cross-complaints between Gavin and Hayes, [2] Payne-Callender expressed a fear of retaliation from Gavin for her cooperation with the investigation.

         In August of 2017, Payne-Callender had an altercation with a civilian clerk of the Trafficking Unit over the delayed relay of messages while Payne-Callender's computer was down for repairs. When Gavin learned of the incident, she insisted that all members of the Trafficking Unit and Payne-Callender submit written reports. Payne-Callender later learned that Gavin asked a sergeant detective in the Human Trafficking Unit to rewrite his report to remove certain facts (presumably favorable to Payne-Callender), and that ultimately, Gavin only submitted the report of the civilian clerk to the BPD human resources (HR) department.

         On September 8, 2017, Payne-Callender filed a formal “Harassment and Hostile Work Environment” claim against Gavin with the BPD Internal Affairs Division. BPD did not meaningfully investigate Payne-Callender's claims - the initial investigation officer's synopsis was inaccurate and inconsistent, and after his retirement, the new investigation officer did not reach out to Payne-Callender. Superintendent Frank Mancini falsely reported the he spoke to Payne-Callender about her complaint. Contrary to its usual policy and practice, BPD did not remove Payne-Callender from Gavin's chain of command to protect Payne-Callender from retaliation, [3] and the investigation remains incomplete because of the pending litigation involving Gavin, Hayes, and the BPD.[4]

         Payne-Callender went on medical leave from March of 2018 to February of 2019. During this period, Gavin systematically left Payne-Callender off of emails sent to all detectives in the Human Trafficking and Crimes Against Children Units. This kept Payne-Callender from being informed of on-going investigations and department directives, and put her at a disadvantage when she returned to work. According to the Complaint, Gavin claimed that she also kept a white male detective who was on leave off the emails.

         In June of 2018, Payne-Callender filed a complaint with the Massachusetts Commission Against Discrimination (MCAD). BPD opened a corresponding internal investigation, and interviewed Payne-Callender in October of 2018. Despite multiple requests and an offer to enter into a confidentiality agreement, BPD refused to provide Payne-Callender a transcript of her interview or of the several interviews it had conducted in connection with her 2017 internal affairs complaint, on the grounds that the investigations were on-going. In February of 2019, an internal affairs investigator attempted to gather information from Payne-Callender directly, despite the pendency of the MCAD complaint.

         When Payne-Callender returned work in February of 2019, BPD did not transfer her out of the Crimes Against Children Unit, and Gavin remained her supervisor. Payne-Callender's new partner warned her that he would report any information that she disclosed to Gavin. Gavin also intentionally avoided Payne-Callender's office, making it impossible for Payne-Callender to adhere to BPD reporting requirements. When Payne-Callender sought approval to teach an outside criminal justice course, rather than accepting a one-page form as BPD had done the previous seven times she sought similar permission, the Legal Department required Payne- Callender to submit an additional written report.[5] Payne-Callender filed suit on April 17, 2019.


         To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations of a complaint must “possess enough heft” to set forth “a plausible entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 559 (2007); Thomas v. Rhode Island, 542 F.3d 944, 948 (1st Cir. 2008). As the Supreme Court has emphasized, this standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotation marks omitted).

         A threshold issue is whether a majority of the incidents described in the Complaint occurred within the statute of limitations. The parties agree that a discrimination-based claim must be filed with the MCAD within 300 days of the allegedly discriminatory conduct. See 29 U.S.C. § 626(d)(1), Mass. Gen. Laws Ch. 151B, § 5. Payne-Callender submitted her MCAD complaint on June ...

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