HENRY DIAZ v. CITY OF SOMERVILLE
Civil
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
February 3, 2022
Boal, M.J.
[Docket No. 42]
Boal, M.J.
In this аction, plaintiff Henry Diaz, a former Somerville police officer, alleges discrimination on the basis of his race in violation of Title VII and Massachusetts law.2 Defendant City of Somerville has moved for summary judgment in its favor. Docket No. 42. I heard oral argument on September 1, 2021. For the following reasons, I grant the motion.
I. SCOPE OF THE RECORD
As a preliminary matter, I must determine the proper scope of the record. Diaz has filed a motion to strike certain exhibits submitted by the City of Somerville as well as some of the statements of fact in the City‘s Statement of Undisputed Facts. Docket No. 51. For the
following reasons, I deny Diaz‘s motion to strike.
At summary judgment, supporting material need not be submitted in a form admissible in evidence but the proponent must show that the evidence is susceptible to being presented in such a form. See
A. Video Of the Incident And Related Statements Of Fact
Diaz argues that this Court should not consider a video of the alleged June 30, 2017 altercation that is the subject of this case because it has not been authenticated and it cannot be presented in a form that would be admissible in evidence. Docket No. 52 at 3, 9, 13. He also argues that this Court should disregard all of the City‘s statements of undisputed facts that are based on the video. See id. I disagree.
“Authentication is a straightforward concept requiring a ‘reasonable probability’ that the item in dispute is what its prоponent claims.” Asociacion De Periodistas De Puerto Rico v. Mueller, 680 F.3d 70, 79 (1st Cir. 2012) (citing Fed. R. Evid. 901(a); United States v. Cruz, 352 F.3d 499, 506 (1st Cir. 2003)). “The proponent ‘need not rule out all possibilities inconsistent with authenticity;’ so long as the ‘evidence is sufficient to allow a reasonable person to believe the evidence is what it purports to be,’ it is left to the factfinder to determine what weight it deserves.” Id. (citing United States v. Alicea-Cardoza, 132 F.3d 1, 4 (1st Cir. 1997)).
The City has submitted the affidavit of Shannon T. Phillips, Assistant City Solicitor
B. Affidavit Of Former Police Chief David Fallon (Exhibit F)
Diaz also moves to strike paragraphs 5, 6, and 7 of the Affidavit of Former Police Chief David Fallon on the grounds that such paragraphs “contain attestations conсerning a claim based on the contents of his conversations with other people and/or speculation that amount to inadmissible hearsay.” Docket No. 52 at 2. Fallon, however, is attesting to what information he relied upon in recommending Diaz‘s termination. He is allowed to do so.
C. Findings Of The Civil Service Commission
In addition, Diaz objects to consideration of the decision of the Civil Service Commission and the paragraphs of the City‘s statement of undisputed facts that rely on that decision as hearsay. Docket No. 52 at 4-11.3 The City, however, is not offering the Civil Service
Commission‘s decision for the truth of the matter asserted. Rather, the City argues that the Civil Service Commission‘s findings have preclusive effect in this action. See Dоcket No. 59 at 4. It is appropriate to consider the Civil Service Commission‘s findings for that purpose. See O‘Hara v. Diageo-Guinness, USA, Inc., 306 F. Supp. 3d 441, 457 (D. Mass. 2018) (citations omitted) (“[J]udicial notice is properly taken of orders and decisions made by other courts or administrative agencies’ when the preclusive effect of those decisions is at issue.“). Similarly, it is proper for this Court to consider the Decision of the Appointing Authority Officer and the Decision of Reconsideration not for the truth of the matters asserted but as evidence of the state of mind of the relevant decision makers. This Court addresses the preclusion argument below. Thereforе, Diaz‘s objection is overruled.
D. Opinion Testimony And Conclusory Statements
Finally, Diaz moves that this Court strike paragraphs 54-55 and 58 of the City‘s statement of undisputed facts as inadmissible opinion testimony and/or conclusory statements. Docket No. 52 at 11-12. Frankly, this argument is puzzling. Those paragraphs contain uncontroversial statements regarding the procedural history of the litigation.
Accordingly, I deny Diaz‘s motion to strike.
II. FACTS4
Diaz is a Black-Hispanic male who was
Sometime between 2:15 and 2:30 a.m. on June 30, 2017, while off-duty from his position as a Somerville police officer, Diaz was driving down Chelsea Street in East Boston with his friend “KT” in the passenger seat of his vehicle.8 At some point, a male civilian (“DB“) came out of nowhere and crossed onto the street in front of Diaz‘s vehicle, which caused Diaz to make a sudden stop.9 The interaction resulted in a physical altercation between Diaz and DB.10
On July 11, 2017, Diaz was placed on administrative leave while the incident was investigated.11 Lt. Timothy Mitsakis of the Somerville Police Department completed an internal investigation of the June 30th incident.12 During an interview conducted in the course of that investigation, Diaz maintained that he struck DB because he was in fear of imminent harm.13 At the conclusion of his investigation, Lt. Mitsakis concluded that Diaz had violated the Department‘s Rules & Regulations relating to truthfulness and conduct unbecoming an officer.14 Chief David Fallon concurred and recommended to the appointing authority that Diaz be disciplined up to and including termination.15
After providing Diaz with notice, a local appointing authority hearing was held on November 2, 2017 by a hearing officer designated by the City, Attorney Peter Berry.16 Diaz, who was represented by counsel, chose not to testify on his own behalf.17 Attorney Berry found that Diaz had engaged in conduct unbecoming an officer and that he was untruthful during his interview by Lt. Mitsakis.18 He also
On December 27, 2017, pursuant to
After hearing the evidence, the Commission found, inter alia, that the City had shown that Diaz engaged in substantial misconduct which adversely affects the public interest. Specifically, it found that “[b]ased upon review of the clear surveillance video of the incident in question, and evidence presented during the course of the hearing, Mr. Diaz did not act in self-defense when striking DB repeatedly on June 30, 2017. Rather, the evidence shows Mr. Diaz was the aggressor during this incident.”24 In addition, the Commission stated that:
The video does not support Mr. Diaz‘s claim that he felt imminent danger before he struck DB. Rather, the video shows Mr. Diaz to be the aggressor by striding forcefully across the street towards DB with a clear purpose to strike DB. At that point, DB had withdrawn from the conflict.
More generally, Mr. Diaz failed repeatedly to de-escalate what began as a rather minor and routine incident. Mr. Diaz stopped his truck and exited the vehicle to continue to engage in an altercation with a civilian beginning when he jaywalked. While DB and Mr. Diaz appeared to have a verbal exchange of words, this does not justify the escalation that occurred, including Mr. Diaz exiting his vehicle. As referenced in the findings, Mr. Diaz exited his vehicle before there was any reference to a gun. Instead of getting out of his vehicle, he had the opportunity to leave the scene and avoid the continued interaction. He admits he was angry during the incident and could not explain why he did not stay in his car and drive away other than it being a bad mistake.25
The Commission also determined that Diaz was untruthful:
During his recorded intеrview as part of the internal affairs investigation, he initially told the interviewer that he hit [DB] in self-defense as he felt in imminent danger. He described in detail how he felt he was about to be struck and had no choice but to hit [DB]. During his testimony before the Commission, Mr. Diaz acknowledged that the video does not support his prior statements to investigators. Specifically, he acknowledged during his testimony before the Commission that any alleged raising of the hands by DB would have occurred after Mr. Diaz had repeatedly struck DB. Mr. Diaz‘s argument that simply remembering things differently does not constitute untruthfulness is not persuasive
for two reasons. First, he chose not to testify at the local heаring and offer that explanation at the time the City was deciding whether there was just cause to terminate him as a police officer. Second, his explanation is not plausible. This is not a case of simply failing to remember a minor detail (i.e. what words were exchanged, how many times he struck DB, etc.). Rather, he stated to investigators that he was in fear of DB and that he continued to strike DB until he was no longer in fear. Mr. Diaz‘s own testimony, the video evidence and common sense show that this core argument by Mr. Diaz (rather than a minor detail) was simply not true. It cannot be attributed to an innocent lapse of memory.26
Before the Commission, Diaz argued that other officers had received lesser discipline for similar or worse offenses.27 The Commission rejected that argument, finding that:
As stated in the findings, Mr. Diaz himself ruled out any type of settlement agreement when the issue was broached by his union representative. I carefully reviewed all of the documents in Exhibit 14 and the parties’ arguments regarding whether the actions or inactions by the City showed that Mr. Diaz was subject to disparate treatment. In each case, I have found that the City has distinguished those matters from the instant appeal, either because the misconduct was not as serious, the employees are no longer employed as police officers or the matters were subject to settlement agreеments.28
The Commission considered that Diaz had no prior discipline in his record.29 Nevertheless, it concluded that:
While the Commission has consistently stated that progressive discipline is consistent with the requirement of basic merit principles, the seriousness of the misconduct here, which includes pummeling a private citizen who was not posing a physical threat to Mr. Diaz, and then lying about the reasons for this misconduct, warrant termination, even in the absence of prior discipline.30
Accordingly, the Commission denied Diaz‘s appeal.31 Diaz did not appeal the Commission‘s decision but rather moved for reconsideration.32 On June 30, 2019, the Commission denied Diaz‘s motion for reconsideration and the Commission‘s decision became final.33
III. ANALYSIS
A. Standard Of Review
Summary judgment is apрropriate if the record, viewed in the light most favorable to the nonmoving party – here, Diaz – “discloses ‘no genuine issue of material fact’ and [thus] demonstrates that ‘the moving party is entitled to a judgment as a matter of law.‘” Zabala-De Jesus v. Sanofi-Aventis Puerto Rico, Inc., 959 F.3d 423, 427-428 (1st Cir. 2020) (quoting Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006)). A dispute is genuine where the evidence “is such that a reasonable jury could resolve the point in the favor of the non-moving party.” Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 87 (1st Cir. 2018) (citation omitted). A material fact is
The moving party bears the initial burden of establishing that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that burden is met, the opposing party can avoid summary judgment only by providing properly supported evidence of disputed material facts that would require trial. See id. at 324. “A plaintiff opposing a properly documented summary judgment motion must carry ‘the burden of producing specific facts sufficient to deflect the swing of the summary judgment scythe.‘” Trahan v. Wayfair Maine, LLC, 957 F.3d 54, 60 (1st Cir. 2020) (quoting Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-7 (1986) (warning that the non-moving party may not simply “rest upon mere allegation or denials of his pleading,” but instead must “present affirmative evidence“).
B. Race Discrimination And The McDonnell Douglas Framework
Diaz brings claims under Title VII and Massachusetts law. Under Title VII, it is unlawful for an employer “to discharge . . . any individual . . . because of such individual‘s race, color, religion, sex, or national origin.”
Where, as here, the plaintiff alleges employment discrimination on the basis of race and there is no direct evidence of discrimination, the Court analyzes his claims under the burden-shifting framework that the United States Supreme Court set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Taite v. Bridgewater State Univ., Board of Trustees, 999 F.3d 86, 93 (1st Cir. 2021). Under that framework, to survive summary judgment, Diaz must put forth evidence from which a reasonable juror could find that he has established a prima facie case of discrimination, namely, that (1) he belongs to a protected class; (2) he was qualified for the position of police officer; (3) the employer took an adverse employment action against him; and (4) the position remained open or was filled by a person with similar qualifications. See Ray v. Ropes & Gray LLP, 799 F.3d at 113 (citation omitted).
If the plaintiff succeeds in putting forth sufficient evidence of a prima facie case, “[t]he burden of production then ‘shifts to the employer to state a legitimate, nondiscriminatory reason for the adverse employment action.‘”34 Paul v. Murphy, 948 F.3d 42, 50 (1st Cir. 2020) (citations omitted). If the defendant articulates such a reason, the “burden of
“A plaintiff can ‘establish pretext by showing weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer‘s proffered legitimate reasons such that a factfinder could’ rationally find them unworthy of credencе and hence ‘infer that the employer did not act for the asserted [nondiscriminatory reasons].‘” Taite, 999 F.3d at 94 (citing Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 56 (1st Cir. 2000)). Moreover, to establish pretext, “[t]here are many veins of circumstantial evidence that may be mined” as “courts will look at evidence of discrimination not in splendid isolation, but as part of an aggregate package of proof offered by the plaintiff.” Id. (quoting Mesnick v. Gen. Elec., 950 F.2d 816, 824 (1st Cir. 1991)). Ultimately, in order to survive summary judgment, Diaz need not prove his case but rather “viewing the aggregate package of proof [he] offered, [he] ‘need only show that [his] ability to meet [his] burden turns on a genuine issue of material fact.‘” Id. (internal citations omitted). “For purposes of the summary judgment analysis, then, the question becomes whether a reasonable jury could find that . . . [the City‘s] proffered reason is pretextual and that [Diaz] was in fact . . . [fired] because of [his] . . . race.” Id. (citations omitted).
1. For Purposes Of Summary Judgment, Diaz Has Provided Sufficient Evidence Of A Prima Facie Case
For purposes of its motion only, the City concedes that Diaz has shown the first, third, and fourth prongs of the prima facie case. See Docket No. 43 at 14. The City argues that Diaz has not met the second prong because he cannot show that he was performing his job at an acceptable level because he engaged in conduсt unbecoming a police officer and was untruthful regarding the June 30, 2017 incident. Id. However, where, as here, the employer relies on
to survive summary judgment.” Theidon v. Harvard Univ., 948 F.3d 477, 505 (1st Cir. 2020) (quoting Bulwer v. Mount Auburn Hosp., 473 Mass. 672 (2016)). “In other words, Massachusetts law differs from federal law in that plaintiffs do not need to establish both discriminatory animus and pretext; they just need to show pretext.” Id. at 505, n. 39.
deficient job performance as its legitimate, nondiscriminatory reason for the termination, this Court may not “consider the employer‘s alleged nondiscriminatory reason for taking an adverse employment action when analyzing the prima facie case,” because doing so would “bypass the burden-shifting analysis and deprive the plaintiff of the opportunity to show that the nondiscriminatory reason was in actuality a pretext designed to mask discrimination.” Melendez v. Autogermana, Inc., 622 F.3d 46, 51 (1st Cir. 2010) (citations omitted). Thus, because the City invoked Diaz‘s alleged misconduct in arguing that he was discharged for nondiscriminatory reasons, see Docket No. 43 at 15, this Court cannot rely on it assessing whether he satisfied the second prong of the prima facie case.
The City argues that it has put forth legitimate, nondiscriminatory reasons for its decision to terminate Diaz and that Diaz is unable to demonstrate pretext. Docket No. 43 at 15-17. Specifically, the City allеges that it terminated Diaz‘s employment as a police officer because the surveillance video, Diaz‘s own admissions and testimony before the Commission, and the Commission‘s findings show that he engaged in conduct unbecoming a police officer, to wit, initiating a physical altercation with a civilian and striking that individual multiple times. Id. at 15. In addition, Diaz was untruthful and unremorseful regarding the incident. Id.
Further, the City argues that given the Commission‘s findings, Diaz is precluded from relitigating whether he was untruthful or whether he acted in a manner that was unbecoming an officer. Docket No. 43 at 17-19. Therefore, the City continues, Diaz cannot attack the City‘s reasons for terminating him as illegitimate or arguе that he was performing his job at an acceptable level at the time of his termination. Id. at 18-19. The City also argues that Diaz is precluded from relitigating whether he was treated disparately than other officers in his termination. Id. at 19. Therefore, Diaz cannot prove that he was treated differently on the basis of race and his claims must fail. Id. For the following reasons, I find that issue preclusion applies to Diaz‘s Chapter 151B claim but not his Title VII claim.
a. The Commissions Unreviewed Findings Have No Preclusive Effect On Diaz‘s Title VII Claim
The Full Faith and Credit Statute,
Here, thе Commission‘s findings were never reviewed by a state court. The City concedes that the U.S. Supreme Court‘s decision in Elliot forecloses the application of res judicata to Diaz‘s Title VII claim. Docket No. 64 at 2. The City, however, argues, with little to no citation to any legal support, that the doctrine of issue preclusion can and should be applied to bar Diaz from relitigating factual issues resolved by the Commission in the context of his Title VII claim. Id. at 2-4. I disagree.
Following Elliot, courts have uniformly found that unreviewed state agency factual findings may not be given issue preclusive effect in subsequent Title VII actions. See, e.g., Hillman v. Shelby Cty. Government, 297 F. App‘x 450, 452-453 (6th Cir. 2008); Bishop v. Birmingham Police Dep‘t, 361 F.3d 607, 610 (11th Cir. 2004); Rao v. Cty. Of Fairfax, Va., 108 F.3d 42, 45 (4th Cir. 1997); Roth v. Koppers Industries, Inc., 993 F.2d 1058, 1059 (3rd Cir. 1993); McInnes v. State of California, 943 F.2d 1088, 1093-1094 (9th Cir. 1991); Afrasiabipour v. Pennsylvania Dep‘t of Transp., 469 F. Supp. 3d 372, 384 (E.D. Pa. 2020). This Court has been unable to find any decisions making the distinction between issue and claim preclusion that the City argues should be applied in this case. Accordingly, I find that Diaz is not precluded from relitigating factual issues decided by the Commission in connection with his Title VII claim.
b. Issue Preclusion Bars Diaz‘s Chapter 151B Claim
Unlike with Title VII claims, unreviewed state agency determinations may have preclusive effect in subsequent Chapter 151B actions “so long as the tribunal rendering judgment has the legal authority to adjudicate the dispute.” Alba v. Raytheon Co., 441 Mass. 836, 841 (2004). In determining whether to give preclusive effect to the findings of а state agency, Massachusetts law applies.36 See Baez-Cruz, 140 F.3d at 28; Keystone Shipping Co. v. New England Power Co., 109 F.3d 46, 50-51 (1st Cir. 1997). Under Massachusetts law, issue preclusion may be used defensively if “(1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom estoppel is asserted was a party (or in privity with a party) to the prior adjudication; (3) the issue in the prior adjudication is identical to the issue in the current adjudication; and (4) the issue decided in the prior adjudication was essential to the earlier judgment.” Green v. Town of Brookline, 53 Mass. App. Ct. 120, 123 (2001) (citations
omitted). “If the conditions for preclusion are otherwise met, ‘[a] final order of an administrative agency in an adjudicatory proceeding . . . precludes relitigation of the same issues between the same parties, just as would a final judgment of a court of competent jurisdiction.‘” Id. at 123-124 (citations omitted).
Here, there is no dispute that Diaz was a party to the proceeding before the Commission. Diaz argues that there was no final judgment because he “was able to appeal it to the Superior Court.” See Docket No. 49 at 23. However, while he had the opportunity to appeal the Commission‘s decision within thirty days of the date of the decision, see
Diaz also challenges the identity of the issues and the necessity of the contested issues to the Commission‘s ruling. See Docket No. 49 at 23-24. The primary issue before the Commission was whether the City had “just cause” to terminate Diaz. See
above, the issues before this Court include whether the City had a legitimate, non-discriminatory reason to terminate Diaz. By finding just cause for the termination, the Commission necessarily concluded that the City had a legitimate reason to terminate Diaz. Among other things, the Commission determined that Diaz had engaged in conduct unbecoming a police officer because hе was the aggressor and failed repeatedly to de-escalate the situation. See Docket No. 44-1 at 12-13. In addition, the Commission found that Diaz was untruthful by claiming that he felt imminent danger before he struck DB. These findings were necessary to the Commission‘s finding of just cause. Therefore, Diaz is precluded from relitigating whether the City had a legitimate reason to terminate Diaz‘s employment.
In addition, Diaz has chosen to prove pretext in this case by arguing that he was treated disparately from other similarly situated white officers. See Docket No. 49 at 21-23. Diaz chose to litigate before the Commission whether he was treated disparately from other police officers in his termination.38 See Docket No. 44-1 at 16. Though the Commission appears to have made no findings regarding racial bias, it made a finding of fact that the cases cited by Diaz in support of his claim of disparate treatment were not comparable because the misconduct was not as serious, the employees were no longer employed as police officers, or the matters were subject to settlement agreements. Id. Therefore, the Commission found that he had not been subject to disparate treatment. See id. Such finding is sufficiently similar to the finding necessary to show pretext in this case for purposes of issuе preclusion. See Kosereis v. Rhode Island, 331 F.3d 207, 214 (1st Cir. 2003) (to show disparate treatment, plaintiff must show “that others similarly
situated to him in all relevant respects were treated differently by the employer.“).
With respect to the necessity of that finding to the Commission‘s decision, Massachusetts courts have:
expand[ed] the applicability of [collateral estoppel] to encompass certain findings not strictly essential to the final judgment in the prior action . . . if it is clear that the issues underlying them were treated as essential to the prior case by the court and the party to be bound. Stated another way, it is necessary that such findings be the product of full litigation and careful decision.
Green, 53 Mass. App. Ct. at 126-127 (quoting Comm‘r of the Dept. of Employment & Training v. Dugan, 428 Mass. 138, 144 (1998)) (emphasis in originаl). As detailed above, the Commission made extensive findings of
3. In Any Event, Diaz Has Failed To Raise Any Triable Issues Regarding His Title VII Claim
As stated above, issue preclusion does not apply to Diaz‘s Title VII claim. Therefore, for purposes of his Title VII claim, Diaz is not precluded from relitigating any issues decided by the Commission. Regardless, I find that, for purposes of summary judgment, the City has met its burden to articulate a legitimate non-discriminatory reason for Diaz‘s termination. Specifically, the City has provided evidence at this stage that it terminated Diaz because he was found to have аcted in a manner unbecoming a police officer during the June 30, 2017 incident and that he was untruthful about the incident. See SOF ¶ 60; Docket No. 44-6. Therefore, in order to survive summary judgment, Diaz must raise a triable issue regarding pretext.
Diaz could show that an employer‘s stated reasons are pretextual in any number of ways. Kosereis, 331 F.3d at 214. One method is to produce evidence that that the plaintiff was treated differently than other similarly situated individuals, see id., which is what Diaz has chosen to do here. See, e.g., Resp. ¶¶ 109-140; Docket No. 49 at 21-23. To successfully allege disparate treatment, Diaz must show “that others similarly situated to him in all relevant respects were treated differently by the employer.” Id. at 214 (citations omitted). “The examples of disparate treatment ‘need not be perfect replicas, [but] they must closely resemble one another in respect to relevant facts and circumstances.‘” Id. (citation omitted).
Here, Diaz has put forth evidence of instances where white police officers received lesser discipline for what he characterizes as similar or worse instances of misconduct. See Resp. ¶¶ 109-140. Diaz cites examples of, inter alia, white police officers accused of assaulting civilians and engaging in domestic violence who were not terminated by the City for their misconduct. See, e.g., Resp. ¶¶ 111-114. The еxamples cited by Diaz, however, are insufficient to show pretext because they do not involve facts or circumstances similar to those Diaz faced. Specifically, Diaz has not pointed to any other instances where a police officer was found both to have assaulted a civilian while off duty and to have lied about the incident during the investigation.39 Accordingly, I find that Diaz has failed to raise a triable issue regarding pretext.
For the foregoing reasons, I deny Diaz‘s motion to strike and grant the City‘s motion for summary judgment.
/s/ Jennifer C. Boal
JENNIFER C. BOAL
United States Magistrate Judge