Arroyo v. City of Bos.

FELIX G. ARROYO, Plaintiff, v. CITY OF BOSTON and MARTIN J. WALSH, Defendants.

Case No. 20-cv-12082-DJC

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

June 8, 2021

MEMORANDUM AND ORDER

CASPER, J.

I. Introduction

Plaintiff Felix G. Arroyo ("Arroyo") has filed this lawsuit against Defendants City of Boston ("the City") and the former mayor of the City, Martin J. Walsh ("Mayor Walsh") (collectively, "Defendants") alleging breach of contract (Count I), violation of due process rights pursuant to 42 U.S.C. § 1983 (Count II), wrongful termination (Count IV), negligent infliction of emotional distress (Count V), violation of the Massachusetts Civil Rights Act (Count VI) and breach of the implied covenant of good faith and fair dealing against both Defendants (Count VII) and defamation just against Mayor Walsh (Count III). D. 21. Defendants now have moved to dismiss. D. 7, D. 9. Plaintiff has moved to amend the complaint, D. 16. As stated during the motion hearing, D. 20, this Court ALLOWS the motion to amend, D. 16. The Court has considered the motions to dismiss, D.7, D. 9, as to allegations in the amended complaint, D. 21. For the reasons stated below, the Court ALLOWS the motions to dismiss in PART and DENIES them in part.

II. Standard of Review

On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), the Court must determine if the facts alleged "plausibly narrate a claim for relief." Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (citation omitted). Reading the complaint "as a whole," the Court must conduct a two-step, context-specific inquiry. García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). First, the Court must perform a close reading of the claim to distinguish the factual allegations from the conclusory legal allegations contained therein. Id. Factual allegations must be accepted as true, while conclusory legal conclusions are not entitled credit. Id. Second, the Court must determine whether the factual allegations present a "reasonable inference that the defendant is liable for the conduct alleged." Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (citation omitted). In sum, the complaint must provide sufficient factual allegations for the Court to find the claim "plausible on its face." García-Catalán, 734 F.3d at 103 (citation omitted).

III. Factual Background

The following summary is based upon the allegations in the amended complaint which are assumed to be true for the purposes of resolving Defendants' motions to dismiss. Arroyo served as Chief of Health and Human Services ("HHS") for the City from January 6, 2014 until his termination on August 24, 2017. D. 21 at ¶¶ 9, 12.

At all relevant times during the present action, the City maintained a policy manual, "An Employee Guide to Benefits, Rights and Responsibilities" ("City Employee Manual"), including a policy on the disciplinary process that governs responses to the violation of work regulations or inappropriate off-duty or on-duty employee behavior. Id. at ¶ 16; D. 21-1.

As alleged, the City learned about claims of sexual harassment against Arroyo on or about July 24 and 25, 2017. Id. at ¶ 15. On July 27, 2017, the City placed Arroyo on administrative leave pending an investigation into the allegations. Id. at ¶ 17. Arroyo was informed by Mayor Walsh's Chief of Staff, Dan Koh ("Koh"), and Corporation Counsel, Eugene O'Flaherty ("O'Flaherty"), that he was placed on administrative leave. Id. That same day, O'Flaherty told Arroyo that the allegations were serious, and he should not be thinking about his job, but rather about "keeping himself out of jail." Id. at ¶ 18. Arroyo has denied and continues to deny all allegations of misconduct brought forth by Hilani Morales ("Morales"). Id. at ¶ 19.

A July 27, 2017 letter from O'Flaherty informed Arroyo that he was on leave pending investigation of a "serious complaint including allegations of harassment and retaliation," although the City did not inform Arroyo that the investigation specifically involved allegations of sexual harassment or provide notice of any of the specific allegations made against him. Id. at ¶ 20. The letter also stated that during administrative leave, Arroyo was "prohibited from having contact with any City employees," which he alleges interfered with his right to present evidence. Id. at ¶ 21. The letter further instructed Arroyo to "not take action that could be perceived as retaliatory against anyone who may have information relevant to the City of Boston's investigation" as "[e]ngaging in such misconduct is prohibited and may be grounds for immediate termination." Id. at ¶ 22. News of Arroyo's leave was published in an August 1, 2017 Boston Globe story based "on a leak from City Hall." Id. at ¶ 29. Arroyo repeatedly requested the details of specific allegations brought against him, as well as the source of the complaint in writing, but the City did not provide the requested information. Id. at ¶¶ 20, 30.

The City hired attorney Kay Hodge ("Hodge") to conduct the investigation of the allegations against Arroyo. Id. at ¶ 28. Arroyo played no role in selecting the investigator, andHodge had previously represented the City against workers in various matters before the Massachusetts Civil Service Commission as well as federal and state court. Id. Although Arroyo received a press inquiry on August 7, 2017 revealing that the press was aware of the specific nature and source of the complaint against him, he met all press inquiries with no comment due to the City's demand he refrain from same. Id. at ¶¶ 23, 31. Arroyo alleges that he was not allowed to defend himself, which he claims further damaged his public reputation. Id. at ¶ 31. On August 8, 2017, Hodge confirmed the investigation was confidential and that the City would not be speaking to the press even though a City employee had already leaked information about the investigation. Id. at ¶ 32. After scheduling an interview with Hodge for August 16, 2017, Arroyo, through counsel, requested a copy of the City Employee Manual, the specific allegations against him and name of complainant, evaluations he received from the HHS Leadership Team members in his capacity as Chief, access to his work emails and an affirmative answer in writing of whether the City had expressed a desire or preference to terminate him prior to the completion of the independent investigation. Id. at ¶ 34. Despite the City's failure to fulfill his requests, he remained fully cooperative. Id. About two days prior to the scheduled interview, Arroyo provided the investigator with the names and titles of twenty-five relevant witnesses, most of whom were women and members of the HHS Leadership Team that previously met with him monthly. Id. at ¶ 35. Arroyo also provided Hodge with relevant evidence including evidence of text messages that his accuser sent to another City employee making contradictory and inconsistent allegations against him during the investigation. Id. at ¶¶ 36, 38.

Arroyo participated in an interview with the investigator on August 16, 2017 and denied all allegations of misconduct. Id. at ¶ 40. The next day, August 17, 2017, Morales filed a complaint with the Massachusetts Commission Against Discrimination ("MCAD") and shortlythereafter shared the complaint with the Boston Globe. Id. at ¶ 41. She also provided the newspaper with emails she received from Koh. Id. The Globe published a story detailing her allegations on August 22, 2017. Id. at ¶ 47. The same day that the Globe article was published, O'Flaherty called Arroyo's attorney to say that Arroyo could resign or be fired. Id. at ¶ 48.

Arroyo alleges that the City and Mayor Walsh failed to complete the pending investigation before making public statements concerning the matter. On August 23, 2017, the Globe quoted Mayor Walsh as saying "[n]obody should have that feeling, [coming into] a hostile work environment. No one should ever have that," when asked generally about sexual harassment. He described it as "something that bothers [him], "particularly [with] a woman" and expressed not wanting these issues to happen in his administration. Id. at ¶ 49. The City's communication chief at the time, Laura Oggeri ("Oggeri") was quoted saying that the allegations were "intolerable and disturbing." Id. She further added that the City takes "the safety and well-being of [its] employees very seriously" and that the City was "working to get to the bottom" of it "as soon as possible." Id. Lieutenant Detective Michael McCarthy ("McCarthy") of the Boston Police Department similarly told the Globe that he was "attempting to contact the victim to see if she wanted to file a criminal complaint." Id. at ¶ 51.

The City terminated Arroyo on August 24, 2017 before having the opportunity to complete his follow up interview scheduled for the next day. Id. at ¶¶ 54-55. Oggeri, however, said in an email statement that he was terminated "after a comprehensive internal investigation." Id. at ¶ 74. The statement was reported by multiple media outlets. Id. Variations of this statement were echoed in subsequent publications in the Globe in September 2017 and February 2018 respectively where the City is said to have terminated Arroyo after an internal investigation beginning on July27 and ending on August 23, 2017. Id. at ¶ 75. The City never provided Arroyo with written findings of fact from the investigation. Id. at ¶ 61.

In October 2017, the City responded to Morales' MCAD complaint stating that it had no evidence that Arroyo committed the acts alleged. Id. at ¶ 64. Morales withdrew her MCAD complaint on November 21, 2017. Id. at ¶ 65. She filed a civil complaint against Arroyo and the City alleging sexual harassment and retaliation in March 2018. Id.

As a result of being terminated, Arroyo lost, in addition to his compensation, his health care insurance, dental care benefits, eye care benefits...