United States District Court, D. Massachusetts
MARK G. DOWGIEWICZ
THE TOWN OF WEBSTER, et al.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR
JUDGMENT ON THE PLEADINGS
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE.
court observed in its decision on defendants' special
motion to dismiss, the legal battle being fought in this case
falls into a depressingly familiar category of a small-town
intra-governmental political feud, here involving a former
member of the Town of Webster's Board of Selectmen, Mark
Dowgiewicz (the plaintiff), and defendants - the Town itself,
Timothy Bent, the former Webster Chief of Police, and Pamela
Leduc, the former Webster Town Administrator . . . . The
pleadings are riddled with allegations of discrimination,
nepotism, racism, retaliation, libel, slander, financial
impropriety, and intimidation. As best as can be determined
from the pleadings, the quarrel began over the refusal of the
defendants to hire Dowgiewicz's [future] son-in-law as a
Town police officer. Broadly read, the Complaint alleges that
when plaintiff objected to what he (in his role as a
Selectman) perceived to be discriminatory hiring practices on
the part of the Town in passing over his soon-to-be
son-in-law (alleged to be a “minority”), the
defendants embarked on a campaign of harassment and
retaliation against him.
Complaint alleges violations of Title VII, 42 U.S.C. §
2000 et seq.; the federal Civil Rights Act, 42
U.S.C. § 1983; the Massachusetts AntiDiscrimination in
Employment Act, Mass. Gen. Laws ch. 151B (Chapter 151B); and
the Massachusetts Whistleblowers Statute, Mass. Gen. Laws ch.
149, § 185; broken into thirteen separate counts
asserted individually against the Town, former Chief Bent,
and former Town Administrator Leduc. The court previously
denied the defendants' SLAPP motion. In that order, the
parties were asked to identify those documents deemed
appropriate for consideration on defendants' Fed.R.Civ.P.
12(c) motion for judgment on the pleadings. See Curran v.
Cousins, 509 F.3d 36, 44 (1st Cir. 2007) (“The
court may supplement the facts contained in the pleadings by
considering documents fairly incorporated therein and facts
susceptible to judicial notice.”), quoting R.G.
Fin. Corp. v. Vergara-Nuñez, 446 F.3d 178, 182
(1st Cir. 2006).
response to the court's order, the parties by way of a
letter dated October 29, 2019, indicated that, with the
exception of a report of investigation and a hearing
officer's decision concerning an alleged violation of a
citizen's civil rights by a Webster police officer, they
were in agreement with respect to the numerous other exhibits
previously submitted to the court. While I think the
defendants have the better of this argument, neither of the
disputed exhibits is necessary to this decision. Rather I
rely for the most part on the factual allegations set out in
the pleadings and plaintiff's October 9, 2019 supporting
12(c) permits “a party to move for judgment on the
pleadings at any time “[a]fter the pleadings are
closed, ” as long as the motion does not delay the
trial. Fed.R.Civ.P. 12(c). A Rule 12(c) motion differs from a
Rule 12(b)(6) motion in that it implicates the pleadings as a
whole. “In the archetypical case, the fate of such a
motion will depend upon whether the pleadings, taken as a
whole, reveal any potential dispute about one or more of the
material facts.” Gulf Coast Bank & Trust Co. v.
Reder, 355 F.3d 35, 38 (1st Cir. 2004).
thirteen counts of the Complaint divide into three basic
categories: (1) those based on alleged discrimination in
employment; (2) those based on alleged retaliation by Bent
and Leduc against plaintiff in response to the exercise of
his First Amendment rights; and (3) a claim against the Town
for “whistleblower” retaliation. The employment
discrimination claims are framed on federal Title VII
regarding the Town and Massachusetts Chapter 151B regarding
the individual defendants. Central to these claims is the
allegation set out in paragraph 1 of Dowgiewicz's
affidavit, specifically: “For the past 19 years I have
served on the Webster Board of Selectman where I am minimally
compensated $3200 annually; in that capacity the Town of
Webster is my employer.” Beginning with that premise,
Dowgiewicz states that he “was subjected to an adverse
employment action . . . causally linked to [his] protected
conduct, ” that is, his public complaints about the
Town's allegedly discriminatory practices and civil
rights violations. Pl's Br. at 7. As a result of the
sustained three-year campaign of adverse retaliatory
harassment undertaken by the defendants, Dowgiewicz alleges
that it “became difficult, if not impossible, for [him]
to perform his job. Id. at 8.
problem with the employment-based counts of the Complaint is
that Dowgiewicz's fundamental premise is wrong. An
elected selectman of a town is not an employee and the
Supreme Judicial Court (SJC) has specifically so held.
See Bruno's Case, 340 Mass. 420 (1960). In that
case, a selectman for the Town of Athol who was injured while
officially “perambulating” the Town's borders
filed a claim for workers' compensation. The claim was
rejected on grounds that the claimant was not an employee. On
appeal, the SJC agreed with the reviewing board even though
the claimant was paid a regular salary by the Town and a
special stipend for performing the perambulating duty.
It was agreed that in addition to their regular pay as
selectmen, which amounted to $11.26 weekly, the selectmen
received an additional $10 for perambulating. This fact,
however, did not alter the character of the duty which the
claimant was performing as an elected public officer. He had
no contract of hire with the town and did not meet that
requirement of the definition of “employee” in
the workmen's compensation act: “every person in
the service of another under any contract of hire, express or
implied, oral or written.” G. L. c. 152, § 1 (4).
He was not subject to the direction and control of anyone,
but was himself in joint charge of the performance of an
Id. at 421 (internal citation omitted).
powers and duties conferred on selectmen by state law are
those more of an employer than an employee. Among others,
selectmen control the personal and real property of the town
for which they are elected, Mass. Gen. Laws ch. 40, § 3;
exercise the power of eminent domain, Mass. Gen. Laws ch. 40,
§ 14; designate public ways in the town, Mass. Gen. Laws
ch. 82, § 38; conduct investigations of the operation of
town departments, Mass. Gen. Laws ch. 41, § 23B; and
oversee aspects of the town employees' retirement
program, Mass. Gen. Laws ch. 32, § 28(2)(a). See
generally D. A. Randall et al., 18 Mass. Pract. Series
§ 6.3 (Board of Selectmen - Duties and Powers) (5th ed.
conclusion that a salaried selectman does not qualify as an
employee under Chapter 151B is reinforced by a reading of the
statute itself, and more particularly, the omission by the
Legislature of any definition of the term
“employer” or “employee” that would
expand on the common law meaning of a master-servant
relationship. The First Circuit has explicitly so held in
interpreting both Chapter 151B and Title VII.
The parties do not cite, and our research has not revealed,
any Massachusetts decisions interpreting the term
“employer” under ch. 151B in a context similar to
this case. However, in interpreting ch. 151B, Massachusetts
courts follow federal case law construing analogous
provisions of federal antidiscrimination law. See
Wheatley v. Am. Tel. & Tel. Co., 418 Mass. 394
(1994). Therefore, we look to federal decisions interpreting
the term “employer” under federal
In Lopez v. Massachusetts,558 F.3d 69 (1st Cir.
2009), we recently interpreted the term
“employer” under Title VII of the Civil Rights
Act of 1964. We noted that Supreme Court precedent has
“established that when a statute contains the term
‘employee' but does not define it, a court must
presume that Congress has incorporated traditional agency law
principles for identifying ‘master-servant
relationships.'” Id. at 83. Under the
common law test, “'the relevant factors defining
the master-servant relationship focus on the ...