Bettencourt v. Town of Mendon

334 F.Supp.3d 468

Edward BETTENCOURT, Plaintiff,

v.TOWN OF MENDON, Mendon Police Department, Chief Ernest Horn, and Lieutenant Donald Blanchette, Defendants.

CIVIL ACTION NO. 16-40065-TSH

United States District Court, D. Massachusetts.

Filed September 26, 2018

Timothy M. Burke, Jared S. Burke, Law Offices of Timothy M. Burke, Needham, MA, for Plaintiff.

Thomas R. Donohue, Gregor A. Pagnini, Leonard H. Kesten, Brody, Hardoon, Perkins & Kesten, Regina M. Ryan, Louison, Costello, Condon & Pfaff, LLP, Boston, MA, for Defendants.

ORDER AND MEMORANDUM OF DECISION

TIMOTHY S. HILLMAN, UNITED STATES DISTRICT JUDGE

Background

Edward Bettencourt ("Plaintiff" or "Bettencourt") has filed suit against the Town of Mendon ("Town"), Mendon Police Department,¹ Chief Ernest Horn ("Chief Horn")² and Lieutenant Donald Blanchette ("Blanchette", and together with the Town and Horn "Defendants") asserting claims for violation of the Massachusetts Whistleblower Act, Mass.Gen.L. ch.149, § 185 (Count One—Town of Mendon); violation of the Massachusetts Civil Rights Act, Mass.Gen.L. ch. 12, §§ 11H, I ("MCRA") (Count Two— Horn and Blanchette); Conspiracy (Count Three— Horn and Blanchette); Intentional Infliction of Emotional Distress (Count Four— Horn and Blanchette); violation of his federal civil rights under 42 U.S.C. § 1983 (Count Five— Horn and Blanchette); sex and gender discrimination in violation of Mass.Gen.L. ch. 151B ("Chapter 151B")(Counts Six and Seven— Horn and Blanchette), Retaliation in violation of Chapter 151B (Count Eight—all Defendants); assault and battery (Count Nine— Blanchette); and False Imprisonment (Count Ten— Blanchette). Chief Horn and Blanchette are being sued in their individual and official capacities.

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 had coffee in Blanchette's office and they would joke around. Bettencourt, Officer Bruce Poirier ("Poirier") and Blanchette would often buy each other coffee. There were several times that Blanchette would request that Bettencourt have lunch with him. Bettencourt did not enjoy these interactions, but tried to get along with Blanchette to "minimize abuse and to get along in the department." In 2012, Bettencourt was choking on some Chinese food and Blanchette saved Bettencourt from choking.

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 took place in 2008/2009.³ Bettencourt also reported being ordered into in a cell along with Poirier. Blanchette was upset with Bettencourt and Poirier (apparently for eating lunch together) and the dispatcher jokingly suggested that Blanchette put them in a cell. Blanchette then took Bettencourt and Poirier to the cell block where prisoners are kept and ordered them into separate cells. Blanchette bolted the door on Poirier's cell. As Blanchette started to shut Bettencourt's cell door, he saw a look in Bettencourt's eyes and said he was joking and let Bettencourt out. At no time was Bettencourt locked in the cell. The incident with the cell occurred in 2011 or 2012. Bettencourt also reported to the MSP that he witnessed Blanchette punch Poirier in the bicep. Bettencourt also reported that Blanchette would poke one of their dispatchers, Robin Remillard. Bettencourt also reported that Blanchette threatened, verbally abused, and belittled everyone at the MPD. However, he verbally and physically abused Bettencourt and Poirier more than other MPD employees. During Bettencourt's interview with the MSP he was ordered not to speak to anyone about the investigation. Bettencourt complied with this order and only told his roommate that he was meeting with the MSP, but he did not provide any explanation.

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 Poirier at the MPD. Bruce Poirier is a straight male.

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...