Nelson v. Town of Westminster

1

AMY NELSON, Plaintiff, v. TOWN OF WESTMINSTER, et al., Defendants.

CIVIL No. 23-40069-MRG

United States District Court, D. Massachusetts

August 30, 2024

REPORT AND RECOMMENDATION

David H. Hennessy, United States Magistrate Judge.

Amy Nelson, a Sergeant at the Westminster Police Department (“WPD”), filed suit on June 14, 2023, against the Town of Westminster and her former supervisor, Ralph LeBlanc. Nelson alleges that Westminster and LeBlanc interfered with and discriminated/retaliated against her for utilizing the protections of the Family and Medical Leave Act (“FMLA”). Nelson also alleges that LeBlanc threatened her in violation of the Massachusetts Civil Rights Act and intentionally interfered with her employment at the WPD. Finally, Nelson alleges that Westminster discriminated against her because of her gender, sex, and pregnancy status in violation of Massachusetts law, negligently supervised LeBlanc which allowed his misconduct to occur, retaliated against her in violation of Title VII of the Civil Rights Act, and created a hostile work environment in violation of Title VII. Westminster and LeBlanc separately moved to dismiss the claims against them, and Judge Guzman referred these motions to me for a report and recommendation. For the reasons set forth below, I RECOMMEND the following:

• As to Counts I and III for discrimination/retaliation in violation of the FMLA, Defendants' motions to dismiss should be DENIED.

• As to Count II for interference with FMLA-protected rights, LeBlanc's motion to dismiss should be GRANTED.

• As to Count IV for violations of the Massachusetts Civil Rights Act, LeBlanc's motion to dismiss should be GRANTED.

• As to Count V for intentional interference with an advantageous relationship, LeBlanc's motion to dismiss should be DENIED.

• As to Count VI for negligent supervision Westminster's motion to dismiss should be GRANTED.

• As to Count VII for gender and sex discrimination in violation of Massachusetts law, Westminster's motion to dismiss should be DENIED.^[1]

• As to Count IX for retaliation in violation of Title VII of the Civil Rights Act, Westminster's motion to dismiss should be DENIED.

• As to Count X for sexual harassment in violation of Title VII of the Civil Rights Act, Westminster's motion to dismiss should be DENIED.

I. Factual Background

Nelson has been an officer at the WPD since 2005. [Dkt. No. 12 Amended Complaint (“AC”), ¶ 1]. She was the first full-time female officer at WPD. Id. ¶ 6. In January 2020, she was promoted to sergeant. Id. ¶ 1. She has no disciplinary history. Id. ¶ 8.

A. Nelson's Use of FMLA Leave

In late fall 2015, Nelson notified then-Chief Salvatore Albert (not party to this suit) that she was pregnant. Id. ¶ 10. She was assigned to dispatch duties for the remainder of her pregnancy. Id. Nelson requested and received FMLA leave for her child's birth. Id. ¶ 11. However, during her leave, the pay policy for officers on leave was changed from the average of hours usually worked to the hours that the employee actually took leave, which resulted in lower pay while she was on leave. Id. ¶¶ 12-13. The new pay policy was in place for at least the twelve weeks of Nelson's FMLA leave. Id. ¶ 14.

During the summer of 2018, Nelson notified then-Chief Michael McDonald (not party to this suit) that she was pregnant with her second child. Id. ¶ 30. Around the same time, Nelson expressed interest in an additional part-time position as a School Resource Officer (“SRO”). Id. ¶¶ 28-29. The SRO position was awarded to a new officer recently graduated from the police academy who was some fifteen years junior to Nelson. Id. ¶ 31. Nelson later learned LeBlanc had stated that she was not considered for the SRO position because she was pregnant and would be taking maternity leave. Id. ¶ 32. LeBlanc was not yet chief and it is unclear if he participated in or influenced the SRO assignment decision.

In December 2020, Nelson told LeBlanc, who had been promoted to Chief earlier in 2020, that she was pregnant and would need reasonable accommodation for her pregnancy near her May 2021 due date. Id. ¶ 52. After she informed LeBlanc of her pregnancy, she was assigned to dispatch duty from 11 p.m. to 7 a.m., rather than her preferred shift of 3 p.m. to 11 p.m. Id. ¶ 54. When an accident to an officer on the 3 to 11 p.m. shift created an opening, LeBlanc refused Nelson's request for reassignment to her preferred shift, and she remained on the overnight shift throughout her pregnancy. Id. ¶¶ 56-58.

In May 2021, Nelson took FMLA leave and returned to work in September 2021. Id. ¶¶ 65, 67. When she returned, she was instructed to move her locker from the women's locker room to the lieutenant's office. Id. ¶ 67. Only male supervisors occupied the lieutenant's office, meaning Nelson would have to bring her uniform and toiletries from the lieutenant's office to the women's locker room to change. Id. ¶ 68. Nelson refused to move her locker. Id. ¶ 69. She was informed that LeBlanc repeatedly complained about her refusal. Id.

On November 18, 2021, Nelson notified LeBlanc that her daughter was diagnosed with leukemia. Id. ¶ 72. Nelson explained that treatment and hospitalization for her daughter would require her to take four to six weeks of leave. Id. ¶ 73. Westminster denied Nelson's additional FMLA leave request because her FMLA leave had been exhausted during her pregnancy earlier that year. Id. ¶¶ 74-75. When Nelson told LeBlanc this, LeBlanc told her that if she ran out of time and still needed to take leave, she would have to separate from employment and, when her job was posted, re-apply and possibly be re-hired. Id. ¶¶ 77-78.

On December 10, 2021, without warning, Nelson was moved off her group rotation despite a history of sergeants picking their group and effectively controlling their scheduled holidays. Id. ¶¶ 79-80. This change meant that where Nelson historically was off on Christmas, she was now, two weeks before the holiday, obligated to work. Id. ¶ 80. When Nelson complained, LeBlanc told her she would have to use her benefit time, which she alleges LeBlanc knew she did not have. Id. ¶ 81. Nelson became afraid that she would lose her job based on LeBlanc's comments and the amount of leave she would require for her daughter's treatment. Id. ¶ 82. Additionally, when members of WPD learned of Nelson's leave predicament, they donated leave time to her. However, LeBlanc intentionally never informed Nelson of the donations, allegedly because LeBlanc believed (erroneously) Nelson created a GoFundMe account to help defray her daughter's medical expenses. Id. ¶¶ 87-89.

Nelson's daughter's treatment was partially successful; thus, in December 2021, Nelson returned early from FMLA leave and, because she was concerned about diminishing benefit time, cancelled her remaining leave request. Id. ¶¶ 85-86. In May 2022, Nelson requested intermittent FMLA leave due to her daughter's ongoing leukemia treatment. Id. ¶ 95. Defendant LeBlanc made negative comments in response, saying again that Nelson may lose her job if she exhausted her leave benefits and needed further absences. Id. ¶ 98.

In June 2022, the WPD proposed a forced overtime policy. Id. ¶ 100. Nelson addressed with LeBlanc the potential for a forced overtime shift coinciding with FMLA leave Nelson might require for her daughter's treatment. Id. LeBlanc told Nelson that if her daughter's treatment conflicted with a mandatory overtime shift, Nelson would need a doctor's note so that “when people bitch about [Nelson],” LeBlanc could show them the note. Id. ¶¶ 101-03. When Nelson later urged LeBlanc to amend the forced overtime policy because of her need to take FMLA leave to care for her daughter, LeBlanc refused and told Nelson she “should have made better choices” when she decided to take on her current responsibilities. Id. ¶ 105. Five days later, without warning, Nelson's firearms duties and certain other responsibilities were terminated. Id. ¶ 106.

B. Nelson's Allegations of Gender, Sex, and Pregnancy Discrimination

In June 2017, Nelson applied to fill an opening for a sergeant. Id. ¶ 16. The promotion was given to a male colleague^[2]despite Nelson's higher test score on the sergeant's exam and her higher level of education. Id. ¶¶ 18, 22. Then-Lieutenant McDonald informed Nelson that the male colleague's education was adjusted a level because he was only “a few credits shy” of receiving a bachelor's degree. Id. ¶ 23. Nelson alleges that she was denied this promotion because of her gender. Id. ¶ 26.

During Nelson's second pregnancy in 2018, she was assigned to dispatch duty, but she was also required to train newly-hired dispatchers and write training curriculums; she alleges male officers were not given additional responsibilities while assigned to light duty. Id. ¶¶ 34- 35. Nelson found the additional workload overwhelming and stressful, but when she reported this to then-Chief McDonald (and provided a doctor's note), McDonald told Nelson that he wasn't sure she should work if stress was an issue. Id. ¶¶ 36-37, 40.

A sergeant position again became available at the end of 2019, and Nelson had the highest test score of all the applicants, earning her the promotion. Id. ¶¶ 41, 44. Nelson was later approached by McDonald and told that the selectmen did not want to promote her because she had not been supportive of McDonald's candidacy for Chief; further, McDonald told her that she should step down as union president if she was to become sergeant, although no male officer had been forced to resign as president as a condition of accepting a promotion. Id. ¶¶ 45-48.

In March 2021, Chief LeBlanc promoted the same male colleague who was promoted to sergeant in 2017 to lieutenant. See id. ¶ 113. LeBlanc did not call...