Background
Edward Bettencourt ("Plaintiff" or "Bettencourt") has filed suit against the Town of Mendon ("Town"), Mendon Police Department,
This Order addresses the following motions: Defendant, Lieutenant Blanchette's Partial Motion For Summary Judgment (Docket No. 30) and Defendant Town of Mendon, Mendon Police Department and Chief Ernest Horn's Motion For Summary Judgment (Docket No. 34). For the following reasons, the Defendants' motions for summary judgment are granted, in part, and denied, in part.
Facts
Bettencourt became employed by the Town as a police officer in November of 1997. While working, Bettencourt would socialize with Blanchette and frequently
In 2008, Chief Horn began attending law school with permission from Mendon's Board of Selectmen who also helped pay some of his tuition. Chief Horn was routinely absent from the Mendon Police Department ("MPD") until he graduated from law school in 2011/2012. While Chief Horn was in law school, Blanchette was the de facto Chief. Blanchette felt overworked as the result of having to cover for Chief Horn because he was doing payrolls, billing, running the shift, and attending meetings. He was handling such duties both for the fire department and the MPD. Basically, Chief Horn had handed the day to day operation do of the MPD over to Blanchette. In 2008, Blanchette told Bettencourt that "while Chief Horn was attending law school, the Chief was not to be bothered and if you (Bettencourt) ever go over my head there will be severe repercussions." While supervising, Blanchette yelled or spoke loudly to everyone and yelled at Bettencourt on an almost daily basis.
On June 16, 2013, two Mendon Police officers, Poirier and James Walckner ("Walckner"), made allegations of misconduct to the Massachusetts State Police ("MSP") regarding Blanchette. The MSP investigated the allegations and conducted interviews of several MPD personnel. On September 18, 2013, Bettencourt was interviewed by the MSP and he told the MSP that on September 8, 2013, Blanchette took a knife from Poirier, started approaching Bettencourt and backed him into a filing cabinet while holding the knife away from his throat. Bettencourt asked Blanchette to stop threatening him and told him that he was "afraid of knives." Blanchette continued to approach him (Bettencourt) while saying "slash, slash, slice, slash, slash" and making threating motions with the knife towards Bettencourt's throat and groin area. Blanchette was talking about how he learned to kill a man with a knife in the Marines. Bettencourt told the MSP that Blanchette once pulled his Taser on Poirier, Chief Horn, and himself. Blanchette also pulled the Taser on Bettencourt between 2009 and 2012.
Bettencourt also reported that Blanchette would jam his fingers into his rib cage and that it would cause him pain. Bettencourt reported that Blanchette punched him in the bicep during the previous winter (2012) for leaving his police car running in the parking lot. Bettencourt also reported that Blanchette would "tit flip" him, i.e. walk up to him and put his hand under his pectoral muscle and push up. The "tit flipping" occurred from 2008-2011. Blanchette never "tit flipped" anyone else. Bettencourt repeatedly told Blanchette to stop, but he refused to do so. Bettencourt and several other MPD employees have described Blanchette's actions as demeaning and degrading. Bettencourt felt that the "tit flipping" was being done because he was gay. Bettencourt ended up having gynecomastia surgery to reduce the size of his breasts. He then started wearing his vest every day.
Bettencourt also reported being struck with a riding crop in the back of the legs. The alleged incident with the riding crop
Poirier was also interviewed and he told the MSP that he, Bettencourt, and Dave Kurczy ("Kurczy" or "Sergeant Kurczy") were struck with a fiberglass bike pole. Poirier told the MSP that the officers were hit for about 6-8 months in 2008. Poirier told the MSP that Blanchette once tried to staple his leg, and that he had been verbally/physically abused and bullied since 2008. Poirier reported to the MSP that Blanchette punched him in the chest and tried to "drive stun him" in the groin. Poirier also reported that Blanchette pointed a Taser at approximately five other MPD employees.
Patricia Benoit-Rudden ("Benoit-Rudden") was also interviewed by the MSP and she reported that Blanchette was not nice to basically the entire day shift including, Bettencourt, Walckner, Poirier, Robin Remillard, Jessica LeBlanc, Steve Laporta, Kurczy and sometimes herself. Benoit-Rudden also reported instances where she has seen Kurczy upset because Blanchette had yelled at him. She also reported that Blanchette was a yeller and that it would be nothing to hear him yelling at "Pam or Dave" and tell them that they "suck as detectives." She further stated that Bettencourt and Poirier made clear to Blanchette that they didn't like the physical abuse and he should "knock it off," but Blanchette would still do it.
Robin Remillard was also interviewed by the MSP and she described Blanchette as downright mean, verbally abusive, emotionally abusive, and controlling. She also reported to the MSP that she began to look for a new job because Blanchette's supervisory style was emotionally abrasive and it caused her chest pains, heart burn, and migraines. She also reported that she changed shifts to get away from Blanchette, and that he harassed everyone. Jessica LeBlanc was also interviewed by the MSP and she reported "jokingly" being hit by Blanchette with a closed fist.
Although it was not reciprocated, Blanchette considered his interactions with Bettencourt to be horseplay. Blanchette, in his mind, treated Bettencourt as if he was a brother. Blanchette had the most physical contact with Bettencourt and Bruce
On September 28, 2013, Blanchette called Bettencourt looking for the key to the MPD motorcycle. Blanchette forced his way into Bettencourt's office in order to get the motorcycle key because the key was not in its proper place and Blanchette could not find the key to Bettencourt's office. As a result, the door frame to Bettencourt's office was broken and the MPD fixed it. Bettencourt was not working when Blanchette was looking for the key.
On September 30, 2013, the MSP interviewed Blanchette regarding the allegations made against him. Blanchette contends that prior to his interview with the MSP, he had no knowledge of the investigation or anyone going to speak with the MSP. However, Chief Horn recalls telling him that officers had made complaints that they were being abused by him and that he told Blanchette "what [he] knew." He also told Blanchette that the MSP wanted to interview him. During his interview, Blanchette acknowledged that most of the allegations were true, including the knife incident. Shortly after Blanchette's interview with the MSP, he was placed on administrative leave, but Chief Horn changed his status to sick leave so that he continued to get paid. On October 21, 2013, Blanchette was arrested as the result of the MSP investigation. Blanchette was charged in connection with the incident where he held a knife to Bettencourt's throat. After he was charged, Blanchette and Chief Horn had very little contact.
Soon after learning about the allegations brought forward to the MSP, Chief Horn appointed special officer Thomas Green ("Green") to investigate how the MPD was being run, including allegations of abuse by Blanchette. Chief Horn told Green to report his findings to Town counsel. Green worked, or has worked, for a private consulting firm run by Chief Horn. Moreover, while the investigation purported to be independent, Chief Horn was in contact with Green during the course of the investigation.
On August 5, 2014, Bettencourt met with Chief Horn to discuss his (Bettencourt's) belief that Blanchette was returning and the severe anxiety and stress that he was feeling as a result. Chief Horn told Bettencourt that the process by which Blanchette would be allowed to return to work would take about a year. On the morning of August 26, 2014, Blanchette admitted in court to sufficient facts to four felonies and three misdemeanors in which the Plaintiff and Officer Bettencourt were the victims. His case was Continued Without a Finding for 18 months. That same day, Blanchette was allowed to return to full duty status at the MPD.
The day prior to Blanchette returning to work, Blanchette drove into the police station and stared at Bettencourt in an intimidating manner. On Blanchette's first day back to work, Blanchette stood in the parking lot with his arms crossed staring at Bettencourt while he unloaded his cruiser. Bettencourt called Chief Horn and told
On or about September 8, 2014, Bettencourt delivered a letter to the Mendon Board of Selectmen ("Board") along with a copy of the MSP report, asking them to terminate Blanchette's employment. That same date, Blanchette and the Town agreed to a "Last Chance Agreement," pursuant to which Blanchette agreed not to challenge his demotion and to thereafter comply with rules, regulation and policies of the MPD and refrain from engaging in abusive behavior toward other members of the MPD.
On November 24, 2014, Senior First District Attorney Daniel Bennett wrote Chief Horn a letter confirming their agreement that Blanchette would no longer be Court liaison with the Worcester County District Attorney's Office and that he would no longer be the primary arresting officer in any case. Chief Horn did not comply with the agreement that Blanchette would no longer be the primary arresting officer on any case. On December 23, 2015, while Blanchette was still on probation, Chief Horn assigned him to the Detective Division which came with an increase in pay and increased overtime opportunities.
One day, in the dispatch office, while staring at Bettencourt, Blanchette made comments about how he still runs the department and then he walked off. Specifically, Blanchette stated "[w]e still know who runs this f'ing department." The next day, Blanchette looked right at Bettencourt and made a comment about how he was a patrolman and he could say whatever he wanted in the department. As Blanchette was making this comment he took two or three steps towards Bettencourt before veering off towards the door. Bettencourt never worked the same shift with Blanchette after he returned to the MPD on August 26, 2014.
Bettencourt filed a charge of discrimination with the Massachusetts Commission Against Discrimination ("MCAD") on November 3, 2014, alleging that Blanchette discriminated against him. Shortly after Bettencourt filed his MCAD charge of discrimination he applied for an open sergeant's position and was denied the promotion. Bettencourt was interviewed by Sergeant Kurczy, and Assistant Fire Chief Mark Bucchino, who had allegiances to Chief Horn. He was also interviewed by Town Administrator Kimberly Newman. Bettencourt does not believe that any of these individuals had any animus towards him because he was gay. Bettencourt believes that he was more experienced and had more training than the officer who was selected.
Blanchette had no knowledge that Bettencourt was seeking a promotion, and Bettencourt has no knowledge of Blanchette playing a role in the denial of his promotion. Blanchette claims that he learned that Bettencourt was gay in April of 2013, however, there is evidence in the record which suggests that he knew before that date. Blanchette was sad that Bettencourt did not tell him that he was gay because he thought they were friendly enough that Bettencourt could tell him. Prior to April 2013, officers at the MPD made accusations that Bettencourt was gay. Blanchette was aware of these accusations, but knew at this time that Bettencourt dated women. In 2008, Bettencourt
Chief Horn claims that prior to the commencement of this lawsuit, he did not know that Bettencourt was gay. However, there is evidence in the record that suggests that Chief Horn was aware that Bettencourt was gay well before suit was filed. Chief Horn claims that the first time Horn was made aware of Blanchette's objectionable conduct was around September 30, 2013, after Walckner and Poirier had gone to the MSP in June 2013. However, Chief Horn acknowledges receiving a copy of anonymous letter outlining Blanchette's objectionable conduct on March 17, 2013. The letter was first sent to radio station WMRC in Milford. Chief Horn called Blanchette into his office and asked him about the allegations. Chief Horn claims that Blanchette denied it. However, Blanchette states that he probably said that he did it. Whether Chief Horn conducted any investigation within the MPD as a result of the letter is a disputed fact, The Board, did not conduct any investigation into the allegations and neither the Board nor Chief Horn took any corrective action as the result of the letter.
Bettencourt never made a complaint about Blanchette to Chief Horn. Bettencourt also never made a complaint about Blanchette to the Board. Bettencourt did not do so because he feared professional and physical retaliation from Blanchette. Given the inferences of conflict and bias throughout this case, it is appropriate to note that Blanchette was the best man at Chief Horn's wedding. In January 2014, Sergeant Kurczy questioned Bettencourt about his discovery that he (Bettencourt) had indicated on a 2012 department form that he had been the victim of harassment. Bettencourt denied that he was the victim of harassment.
In December 2015, after Blanchette had returned to the MPD for approximately 14 months, Bettencourt reported feeling ill to Chief Horn who believed he was experiencing mental stress and told him to take some time off to feel better. Based on his observations of how distraught Bettencourt was at the time and fearing that he might hurt himself, Chief Horn took his firearm, although he was not required to do so. Moreover, despite his contention that he took away the firearm because he felt Bettencourt was under mental stress, he would not place him on injured on duty status pursuant to Mass.Gen.L. ch. 41, § 111F ("IOD"), although he had the authority to do so. Through counsel and while remaining on leave, Plaintiff subsequently requested that he be placed on IOD status. Chief Horn ultimately forwarded the request to the Board, who pursuant to Bettencourt's request, placed him on IOD status.
After Bettencourt reported Blanchette's conduct to the MSP, his take home motorcycle, which he had used for five years, was taken away and his office was moved to a trailer. Chief Horn did not renew the lease on two motorcycles, one which was used by Bettencourt and another used by Sergeant Hoar, who had been promoted and would no longer be using the motorcycle. Additionally, Bettencourt was not the only officer to be moved to the trailer, nor was he the first to be moved. However, Chief Horn gave Bettencourt's office to his personal secretary.
Standard of Review
Federal Rule of Civil Procedure 56 provides that the court shall grant summary judgment if the moving party shows, based on the materials in the record, "that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A factual dispute precludes summary judgment if it is both "genuine" and "material." See Anderson v. Liberty Lobby ,
The moving party is responsible for "identifying those portions [of the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett ,
The Motions for Summary Judgment
Blanchette seeks summary judgment on Bettencourt's claims for violation of the MCRA, conspiracy, violation of his right to free speech and equal protection under
Plaintiff's Whistleblower Claim
Bettencourt asserts that he acted as a whistleblower when he reported Blanchette's abusive conduct to the MSP. He asserts that the Town violated his rights under the whistleblower statute, Mass. Gen. L. ch. 149, § 185, when Chief Horn and Blanchette took adverse actions against him after he made the report. The Town asserts that Bettencourt's claim is barred under the two year statute of limitations applicable to such claims.
The Massachusetts whistleblower statute "forbids Massachusetts agencies and instrumentalities from retaliating against employees who disclose to a public body any activity or practices in violation of law that the employee reasonably believes poses a risk to public health or safety. The limitations period for a claim of retaliation under the whistleblower statute is two years. 'The statutory period for complaining of a discriminatory termination does not begin to run until the employee has sufficient notice of that specific
Violation of the MCRA and Section 1983
Bettencourt alleges that Blanchette and Chief Horn violated his right to freedom of speech and equal protection under section 1983 and the MCRA by punishing him for speaking up about the they physical and verbal abuse which occurred at the MPD.
Whether Bettencourt's Civil Right's Claims Are Barred By the Statute of Limitations
Defendants assert that Bettencourt's federal and state civil rights claims for violation of his First Amendment right to free speech are barred by the statute of limitations because the incidents and conduct underlying such claims occurred prior to June 3, 2013. " Section 1983 does not contain a built-in statute of limitations. For section 1983 claims, a federal court applies
"Although section 1983 borrows its limitations period from state law, the accrual date for a section 1983 claim is measured by federal law. Under federal law, such a cause of action accrues 'when the plaintiff knows, or has reason to know of the injury on which the action is based.' " Alamo-Hornedo v. Puig ,
First, it is not evident from the complaint, or Plaintiff's arguments made in his memoranda in opposition how the individual incidents of abuse relate to his civil rights claims for violation of his free speech and equal protection rights-although the Court can surmise how the incidents would be relevant to his equal protection claim.
Defendant assert that Bettencourt has failed to state a claim for violation of his first amendment free speech rights because he was not speaking as a citizen on a matter of public concern. "[W]hen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior." Connick v. Myers ,
a two-step initial inquiry. The first step requires a determination of: whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech ... [T]his first step itself has two subparts: (a) that the employee spoke as a citizen and (b) that the speech was on a matter of public concern. If the answer to [this] first (two subpart) step is yes, then the possibility of a First Amendment claim arises, and the second step of the inquiry is made:
The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. This consideration reflects the importance of the relationship between the speaker's expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations.
Curran v. Cousins ,
Defendants argue that Plaintiff's speech concerns alleged verbal and physical harassment in the workplace, which are not matters of public concern, but are instead complaints about working conditions. I disagree with the Defendants. On the record before me, Bettencourt was not reporting on a few minor instances of "horseplay" which may occur in the workplace. On the contrary, this was a person in a supervisory position, for all intents and purposes, the acting chief of police, who was allowed to physically and verbally abuse his subordinates, including but not limited to Bettencourt, for years . Given the nature and extent of Blanchette's abusive, unprofessional conduct, Bettencourt's report to the MSP and his complaints to the Board and Chief Horn are akin to a public employee disclosing corruption within a government agency, which are the
"A public employee who is speaking as an employee, rather than as a citizen, has no First Amendment cause of action based on his 'employer's reaction to the speech.' In other words, the focus in this context is not on the content of the speech, but 'the role the speaker occupied when he said it.' " Bolduc v. Town of Webster ,
In this case, application of the factors favor a finding that Bettencourt speech was made as part of his duties as a police officer. Bettencourt spoke to MSP investigators concerning the conditions at the MPD, that is, the conditions of his employment. He also sent a letter to the Board and spoke with Chief Horn, and in both cases, such speech concerned the conditions of his employment. In speaking to the Board and Chief Horn, he was speaking "up the chain of command." It also can be said that his interview with the MSP was part of the chain of command as it was an official investigation involving official complaints about conditions at the MPD. He spoke on matters which he learned during the course of, or connection with, his employment. There is no citizen analogue to the speech.
Whether Plaintiff has stated a Claim for Violation of His Equal Protection Rights
"In an equal protection case, the court considers (1) whether the [plaintiff] was treated differently than others similarly situated, and (2) whether such difference was based on an impermissible consideration, such as race. Some evidence of actual disparate treatment is a 'threshold requirement' of a valid equal protection claim ... Plaintiffs claiming an equal protection violation must first identify and relate specific instances where persons situated similarly in all relevant aspects were treated differently, instances which have the capacity to demonstrate that plaintiffs were singled out for unlawful oppression." Ayala-Sepulveda v. Municipality of San German ,
Plaintiff's Conspiracy Claim
Bettencourt has alleged a state common law civil conspiracy claim against Blanchette and Chief Horn. "Massachusetts recognizes two types of civil conspiracy, so-called 'true conspiracy' and conspiracy based on section 876 of the Restatement (Second) of Torts." Taylor v. Am. Chemistry Council ,
an independent action, but rather involves 'concerted action,' whereby liability is imposed on one individual for the tort of another. Under this theory, a defendant may be held liable for actions done by others pursuant to a common design or with the defendant's substantial assistance or encouragement. Key to this cause of action is a defendant's substantial assistance, with the knowledge that such assistance is contributing to a common tortious plan. Thus, plaintiff must establish a common plan to commit a tortious act where the participants know of the plan and its purpose and take affirmative steps to encourage the achievement of the result.
Grant ,
Intentional Infliction of Emotional Distress
Bettencourt has asserted a claim for intentional infliction of emotional distress against Chief Horn and Blanchette. Blanchette is not moving for summary judgment on this claim. Chief Horn seeks summary judgment on the grounds that this claim is barred by the applicable statute of limitations (three years). In the alternative, Chief Horn asserts that Bettencourt has failed to allege sufficient facts to establish a claim against him for intentional infliction of emotional distress.
To make out a claim of intentional infliction of emotional distress, the plaintiffs were required to show (1) that [defendant] intended, knew, or should have known that his conduct would cause emotional distress; (2) that the conduct was extreme and outrageous; (3) that the conduct caused emotional distress; and (4) that the emotional distress was severe. The standard for making a claim of intentional infliction of emotional distress is very high. Liability cannot be predicated on mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities, nor even is it enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Conduct qualifies as extreme and outrageous only if it go[es] beyond all possible bounds of decency, and [is] regarded as atrocious, and utterly intolerable in a civilized community.
Polay v. McMahon ,
Plaintiff's Discrimination Claims
Bettencourt has asserted claims for sex and gender discrimination under Chapter 151B against the Defendants. The Defendants assert that Plaintiffs Chapter 151B claims are barred by the applicable statute of limitations. In the alternative, they argue that the claims fail on their merits.
Whether Plaintiff's Discrimination Claims are Time Barred
Defendants assert that Bettencourt filed his complaint with the MCAD on November 3, 2014 and therefore, any incidents of discrimination which occurred more than three hundred days prior, i.e. , before January 7, 2014, cannot be used to support his claim. Bettencourt argues that he has alleged an ongoing pattern of discrimination by Blanchette that continued beyond January 7, 2014 and therefore, under the continuing violation doctrine, his claims are not time-barred.
Under Chapter 151B, a plaintiff must file an administrative complaint with the MCAD within 300 days of the date of the occurrence of the alleged unlawful employment practice. See Mass.Gen. L. ch. 151B, § 5. However, "where a plaintiff alleges a pattern of discriminatory conduct ... the continuing violation doctrine applies. 'That doctrine permits a person to seek damages for alleged discrimination occurring outside the usual statute of limitations period if the alleged events are part of an ongoing pattern of discrimination, and there is a discrete violation within the statute of limitations period to anchor the earlier claims.' " Diaz v. Jiten Hotel Mgmt., Inc. ,
As pointed out by Blanchette, the only possible incidents of alleged unlawful conduct by him after January 7, 2014 are the following: (1) one day prior to Blanchette returning to work on August 26, 2014, he was driving by the police station and stared at Bettencourt in an intimidating manner; (2) one day in the dispatch office, while staring at Bettencourt, Blanchette made comments about how he still runs the f'ing department and then he walked off; and (3) the next day, Blanchette looked right at Bettencourt and made a comment about how he was a patrolman and he could say whatever he wanted in the department-as Blanchette was making this comment he took two or three steps towards Bettencourt and veered off towards the door. Bettencourt does not dispute that these are the only incidents involving Blanchette which occurred within the statute of limitations period. I have grave doubts as to whether these alleged incidents are sufficient to act as the necessary "anchor" during the statute of limitations period for the alleged pattern of abusive physical and, to a lesser extent, verbal conduct which occurred well before January 7, 2014 and are the mainstay of Bettencourt's discrimination complaint against Blanchette. The question is whether I can find that as a matter of law, a reasonable person in Bettencourt's position would have known well before January 7, 2014 that his rights had allegedly been violated. Given the gravity and frequency of the abuse prior to 2014, I find that a reasonable person in Bettencourt's position would have known that his rights had been violated. Indeed, the incidents which happened before 2014 are the basis for Blanchette's independent claims for false imprisonment, assault and battery and intentional infliction of emotional distress. Blanchette's motion for summary judgment on this claim is granted, as I find it is time barred.
As to Chief Horn and the Town, Bettencourt does not dispute that he has not alleged any incidents of discrimination by Chief Horn or the Town which occurred during the statute of limitations period. Instead, he argues that the Court should analyze whether their claims are timely applying a systematic pattern of discrimination analysis. Federal courts analyzing the timeliness of discrimination claims brought under Title VII have recognized both the continuing violation theory and the "systematic violation" theory. " '[A] systemic violation need not involve an identifiable, discrete act of discrimination transpiring within the limitation period.... A systemic violation has its roots in a discriminatory policy or practice; so long as the policy or practice itself continues into the limitation period, a challenger may be deemed to have filed a timely complaint.' " Morrison v. N. Essex Cmty. Coll. ,
Plaintiff's Retaliation Claims
Plaintiff's retaliation claims are governed by the burden-shifting framework of McDonnell Douglas Corp. v. Green ,
To establish a prima facie case of retaliation under Chapter 151B, he must show: (1) he engaged in a protected activity; (2) he suffered a materially adverse action; and (3) there was a causal connection between the protected activity and the adverse action. See Dixon v. Int'l Bhd. Of Police Officers ,
Under Massachusetts law, a plaintiff has engaged in protected activity if "he has opposed any practices forbidden under this chapter or because he has filed a complaint, testified or assisted in any proceeding under [the statute]." Mass.Gen.L. ch. 151B § 4(4). "Adverse action" in the retaliation context is an act "that could well dissuade a reasonable worker from making or supporting a charge of discrimination." It is defined as: "any action 'to coerce, intimidate, threaten, or interfere with' the plaintiff." Dixon ,
While the Defendants have not disputed that Bettencourt has satisfied the first prong of the McDonnel Douglas analysis, they assert that, as a matter of law, he has failed to establish that first, that he suffered an adverse action, and second, that any adverse action he did suffer was causally related to his protected activity. Bettencourt asserts that he suffered adverse employment actions when his office was transferred to the trailer, he was denied a promotion, his motorcycle was taken away, and when Chief Horn denied him IOD status. Bettencourt has not come forward with a scintilla of evidence that Blanchette had any role in any of these alleged adverse actions. For that reason, summary judgment shall enter for Blanchette on Bettencourt's retaliation claim. The remainder of this discussion with focus on whether Bettencourt has stated a retaliation claim against Chief Horn and/or the Town.
There is evidence in the record that Chief Horn and/or the Town did take the alleged actions against Bettencourt. The question thus becomes whether under the broad definition of "adverse action" recognized under Massachusetts law he suffered "effects on working terms, conditions, or privileges that are material, and thus governed by the statute, as opposed to those effects that are trivial and so not properly the subject of a discrimination action." Sensing v. Outback Steakhouse of Fla., LLC ,
Plaintiff's False Imprisonment Claim
Plaintiff has asserted a false imprisonment claim against Blanchette as a result of Blanchette ordering him into a cell sometime in 2011/2012. Blanchette argues that this claim is barred under the applicable statute of limitations (three years). Bettencourt asserts that this incident was part of the long term pattern of abuse by Blanchette and applying the continuing violation doctrine. "The continuing tort doctrine has been applied to a limited number of torts in Massachusetts," see M.L. v. S.N. ,
Conclusion
Defendant, Lieutenant Blanchette's Partial Motion For Summary Judgment (Docket No. 30) is granted , in part and denied , in part.
Defendant Town of Mendon, Mendon Police Department and Chief Ernest Horn's Motion For Summary Judgment (Docket No. 34) is granted , in part and denied , in part.
SO ORDERED.
Notes
The Mendon Police Department is not an entity separate from the Town and therefore, is not treated as an independent party. For that reason, the Mendon Police Department is dismissed from the case.
Ernest Horn is no longer the chief of police for the Town. Because he was the chief of police during the period relevant to Bettencourt's claims, I will refer to him as "Chief Horn" throughout this opinion.
Blanchette disputes this asserted fact stating that he and Bettencourt hit each other with a riding crop and that the alleged incident did not take place in this time period. Nonetheless, this is what Bettencourt reported to the MSP, which is the undisputed fact.
Chief Horn disputes the extent to which he had contact with Green during the investigation stating that he did not communicate with him in depth until Walckner started making accusations against him (Chief Horn) to Green.
The Massachusetts Supreme Judicial Court has indicated that claims under the MCRA are, for the most part, analyzed co-extensively with claims brought under section 1983, except that "[t]o state a claim under the MCRA, a plaintiff must show that (1) his exercise or enjoyment of rights secured by the constitution or laws of either the United States or the Commonwealth of Massachusetts (2) has been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by threats, intimidation or coercion." Ciolino v. Eastman ,
Bettencourt has also asserted civil rights claims against Blanchette for violation of his right to bodily integrity. Blanchette has not moved for summary judgment on that claim.
"The 'continuing violation' doctrine is an equitable exception that saves otherwise time-barred claims if they are based on an ongoing series of acts anchored by similarity to some violation that is not time-barred. The purpose of the doctrine is to ensure that a plaintiff's claims are not foreclosed in circumstances where a plaintiff needed to see a pattern of mistreatment before becoming aware that earlier individual acts were, indeed, discriminatory." Salcedo v. Town of Dudley ,
The alleged physical abuse by Blanchette would be relevant to his free speech claim if, for instance, he alleged that Blanchette hit him with a riding crop, or "tit flipped" him because he was speaking out, but I do not read his submissions as making such allegations.
If I find that Bettencourt has satisfied the first two steps, then the jury determines whether protected speech was "a substantial or motivating factor in triggering" any adverse employment action against him, and "whether, even if the [speech] was a triggering factor[ ], the [D]efendant[s] would have taken the same action even if [he] had never made the statement" are questions for the jury. Bennett v. City of Holyoke ,
Bettencourt filed a complaint with the MCAD, which arguably was done outside his duties as a police officer. However, such speech is more personal in nature rather than a matter of public concern, and therefore, would not support a cause of action.
Defendants assert that Plaintiffs' retaliation claims under Chapter 151B are also time barred. However, substantially all of the retaliatory actions complained of by Bettencourt took place after he filed his MCAD complaint in November 2014, and therefore, are well within the statute of limitations. Moreover, because I found that Bettencourt's Chapter 151B discrimination claims are time barred, it was not necessary for me to address Defendants' argument that they are barred by Bettencourt's filing of a whistleblower claim under Chapter 149, § 185(f). However, I do not find that Bettencourt's filing of a whistleblower claim under chapter 149 would bar his retaliation claims as they are not based on the same underlying cause of action, and therefore, would not result in duplicative damages.
Chief Horn contends that he did not make the decision as to who got the position which Bettencourt applied for. I find that there is a dispute of fact on this issue.