Diaz v. City of Somerville

583 F.Supp.3d 296

Henry DIAZ, Plaintiff,

v.CITY OF SOMERVILLE, Defendant.

Civil Action No. 19-11361-JCB

United States District Court, D. Massachusetts.

Filed February 3, 2022

Jacques A. Dessin, Dessin Law Office, Boston, MA, for Plaintiff.

Leonard H. Kesten, Michael Stefanilo, Jr., Brody, Hardoon, Perkins & Kesten, Boston, MA, for Defendant.

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ¹

[Docket No. 42]

Boal, M.J.

In this action, 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 Fed. R. Civ. P. 56(c)(2) ("A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence."). Therefore, where a party objects to proffered evidence for want of authentication, the proponent of the evidence need not in fact authenticate the evidence. Sanchez-Pares v. Mapfre Puerto Rico, No. 18-1917, 2021 WL 359985, at *1 (D.P.R. Feb. 2, 2021) (citing Garcia-Garcia v. Costco Wholesale Corp., 878 F.3d 411, 418 n. 11 (1st Cir. 2017) ). Rather, the proponent must merely "show that the material is admissible as presented or ... explain the admissible form that is anticipated" for trial. Id. (citing Fed. R. Civ. P. 56, Advisory Committee Notes (2010)). Although a sworn affidavit is unnecessary, some showing is required. Id. (citation omitted).

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 proponent 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 for the City of Somerville. Docket No. 59-1. Ms. Phillips’ affidavit states that Exhibit B to the City's statement of undisputed facts is a true and accurate copy of the surveillance video that was reviewed by the City in conjunction with the disciplinary matter against Diaz and that was submitted to the Civil Service Commission without objection by counsel for Diaz. Id. at ¶ 7. She also states that the video was retrieved as a part of the disciplinary process involving Diaz and was received by her and kept by the City in the usual course of business. Id. at ¶ 8. Diaz has not credibly suggested that the video does not depict the incident in question. Accordingly, I find that the video is susceptible to being presented in admissible form at trial.

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 concerning 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 Docket 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. Therefore, 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. FACTS ⁴

Diaz is a Black-Hispanic male who was born in the Dominican Republic.⁵ He was hired as a police officer with the City of Somerville in February 2008.⁶ Prior to the June 30, 2017 incident at issue in this case, Diaz performed his job satisfactorily and had no disciplinary records in his personnel file.⁷

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 30^th 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 found that termination of Diaz's employment was warranted under the circumstances.¹⁹ Via letter dated December 13, 2017, the Mayor of Somerville adopted the findings and recommendation of Attorney Berry and the recommendation of Chief Fallon and terminated Diaz from his position as a police officer.²⁰

On December 27, 2017, pursuant to M.G.L. c. 31, § 43, Diaz filed an appeal with the Civil Service Commission (the "Commission"), contesting the decision of the City to terminate his employment as a Somerville police officer.²¹ The Commission held three days of hearings on June 11, July 13, and August 17, 2018.²² Diaz was represented by counsel and testified on his own behalf.²³

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,

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