Cummings v. City of Newton & Setti D. Warren in His Individual & Official Capacities, Civil Action No. 15–13462–NMG

298 F.Supp.3d 279

Matthew A. CUMMINGS, Plaintiff,

v.CITY OF NEWTON and Setti D. Warren in his individual and official capacities, Defendants.

Civil Action No. 15–13462–NMG

United States District Court, D. Massachusetts.

Signed February 6, 2018

Timothy M. Burke, Sheila E. McCravy, Law Office of Timothy M. Burke, Needham, MA, for Plaintiff.

Angela Buchanan Smagula, Maura E. O'Keefe, City of Newton Law Department, Newton, MA, Donnalyn B. Kahn, City Solicitor's Office City of Newton Law Department, Newton Centre, MA, for Defendants.

MEMORANDUM & ORDER

Nathaniel M. Gorton, United States District Judge

This case involves allegations of tortious and unconstitutional actions arising out of the termination of the former Police Chief of the City of Newton. Matthew Cummings ("plaintiff") brings this suit against the City of Newton and against Mayor Setti D. Warren, in both his individual and official capacities, (collectively "defendants") alleging 1) a violation of procedural due process under 42 U.S.C. § 1983, 2) a violation of substantive due process under 42 U.S.C. § 1983, 3) a violation of the Massachusetts Civil Rights Act ("MCRA"), M.G.L. c. 12, § 11I, 4 ) intentional interference with advantageous relations, 5) breach of the covenant of good faith and fair dealing and 6) intentional infliction of emotional distress.

Pending before the Court is defendants' motion for summary judgment. For the reasons that follow, defendants' motion will be allowed.

I. Background

In March, 2009, Matthew Cummings and the City of Newton ("Newton" or "the City") entered into an employment contract for Cummings to serve as the Newton Chief of Police.

In September, 2011, Vincent Nguyen ("Nguyen"), a clerk in the Office of the Chief of Police, made an allegation of theft against Jeanne Sweeney Mooney ("Mooney"), who was plaintiff's Executive Secretary. That same month, Mooney was placed on paid administrative leave pending investigation. Cummings believed that there was probable cause to arrest Mooney for theft. The Human Resources Department for the City initiated an independent investigation into the alleged larceny. In January, 2012, the chosen investigator found probable cause to arrest Mooney for larceny but she was not then arrested.

Mooney served the City with a demand letter pursuant to the Massachusetts Tort Claims Act, M.G.L. c. 258, § 4, on May 21, 2012. That demand letter contained allegations that Cummings had made inappropriate remarks to Mooney and that on one occasion had kicked her, causing injury. The alleged events were said to have taken place during the summer of 2010. On May 22, 2012, the City hired Edward Mitnick ("Mitnick") of Just Training Solutions, LLC to investigate the allegations in Mooney's demand letter. In August, 2012, Mitnick concluded his investigation and found that there was "sufficient credible evidence" to believe that Mooney's allegations against Cummings were true.

Meanwhile, on or about May 31, 2012, former City Solicitor Donnalyn Kahn ("Kahn"), Cummings and various City officials discussed the theft allegations against Mooney. A few days later, the Mayor's office contacted Cummings, and informed him that the Mayor wished to discuss those allegations. The parties dispute whether Warren or Cummings made the final decision but the Newton Police Department, in conjunction with the Middlesex District Attorney's office, filed a criminal complaint against Mooney in June, 2012. On July 16, 2012, Mooney filed a verified discrimination complaint with the Massachusetts Commission Against Discrimination. That complaint alleged that Warren, Kahn, Cummings and former Newton Police Lieutenant Edward Aucoin filed the criminal charges against Mooney in retaliation for her having reported the misconduct of Cummings.¹

On August 29, 2012, Warren notified Cummings that he was being "placed on administrative leave, pending a termination hearing for cause" pursuant to the terms of his employment agreement. That same day, Warren held a press conference wherein he stated,

[t]he names the chief called this employee, and the physical action of kicking her, is inappropriate and unacceptable.... It's just purely unacceptable in this city, is not tolerated and will not be tolerated.

On September 11, 2012, the Mayor sent plaintiff a letter providing notice of the charges warranting termination. The letter indicated that Cummings would be charged with 1) "conduct unbecoming a Police Chief" and 2) "inability satisfactorily to perform the services" required of a Police Chief. Mayor Warren designated Robert R. Rooney ("Rooney"), the City's Chief Operating Officer, to preside over the hearing that was held on October 10, 2012. The following day, the Mayor notified Cummings that

Pursuant to paragraph 5 of your current Chief of Police's contract and after a hearing and findings of fact by Hearing Officer Robert R. Rooney, you are hereby terminated as Chief of Police for the City of Newton.

Pursuant to the employment agreement, Cummings appealed the decision to an arbitrator. One year later, on October 10, 2013, the arbitrator issued a decision in which he found that Cummings did not engage in conduct unbecoming a police chief and ordered plaintiff reinstated to his position as Chief of Police with back pay. The City appealed that decision to the Massachusetts Superior Court pursuant to M.G.L. c. 150C § 11. The Superior Court remanded the decision to the arbitrator. In March, 2015, the arbitrator again found that the City did not satisfy its burden of proving that Cummings engaged in conduct unbecoming a police chief. This time, however, the arbitrator ordered as a remedy that the City make Cummings whole for lost benefits, including back pay, but that "reinstatement is not awarded because Mr. Cummings' employment contract ... expired January 12, 2014."

A. Employment Agreement

The employment agreement between Cummings and the City, entitled "Chief of Police's Contract", provided that the City would employ Cummings as its Chief of Police from January 13, 2009 until January 12, 2014, "unless earlier terminated under the provisions" of the agreement. The contract also provided that

[t]he city, acting through its mayor, may terminate Cummings for cause after a hearing." "Cause" is defined to include "Cummings' failure, refusal or inability satisfactorily to perform the services required of him hereunder ... [and] ... conduct unbecoming a Police Chief ....

If the City proposed to terminate the contract, the agreement required that "Cummings shall receive written notice of the charges against him at least seven days prior to a hearing." The contract afforded Cummings the right, during the hearing, to be

represented by counsel, to question, confront and cross-examine witnesses, to introduce evidence and to conduct oral arguments."

The hearing officer, who was to be the Mayor or his designee, was to hear and consider the evidence and cause for dismissal had to be established "by substantial evidence". The agreement contained an arbitration clause that provided that

[a]ny dispute concerning ... a claim to breach, or the termination of this Agreement, or the termination of employment of the Chief of Police, shall be resolved exclusively by arbitration under the Voluntary Labor Arbitration Rules of the American Arbitration Association.

Finally, the agreement permitted the City to terminate Cummings' employment, at the sole discretion of the Mayor, during the fifth year of Cummings' term.

II. Analysis

The role of summary judgment is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991). The burden is on the moving party to show, through the pleadings, discovery and affidavits, "that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists where the evidence with respect to the material fact in dispute "is such that a reasonable jury could return a verdict for the nonmoving party." Id.

If the moving party has satisfied its burden, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine, triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court must view the entire record in the light most favorable to the non-moving party and indulge all reasonable inferences in that party's favor. O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993). Summary judgment is appropriate if, after viewing the record in the non-moving party's favor, the Court determines that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.

A. Count I: 42 U.S.C. § 1983 —Procedural Due Process

Defendants assert that plaintiff has failed to show that the procedural safeguards contained in his employment contract were constitutionally deficient. Plaintiff maintains that defendants deprived plaintiff of his employment without due process of law through their misconduct, malicious motivation, intentional delays and failure to comply with court orders.

Section 1983 creates a cause of action against persons who, under color of state law, deprive a United States citizen of any "rights, privileges, or immunities secured by the Constitution and laws." See 42 U.S.C. § 1983. The Fourteenth Amendment provides that

nor shall any state deprive any person of life, liberty, or property, without due process of law.

U.S. Const. amend. XIV, § 1.

To prevail on a procedural due process claim under § 1983, a plaintiff must demonstrate that: 1) the plaintiff has been deprived of a protected interest and 2) that deprivation was accomplished without due process of...