Cummings v. City of Newton et al
Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDER. For the foregoing reasons, defendants' motion for summary judgment (Docket No. 52 ) is ALLOWED. So Ordered.(Franklin, Yvonne)
United States District Court
District of Massachusetts
Matthew A. Cummings,
City of Newton and Setti D.
Warren in his individual and
Civil Action No.
MEMORANDUM & ORDER
This case involves allegations of tortious and
unconstitutional actions arising out of the termination of the
former Police Chief of the City of Newton.
(“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
Pending before the Court is defendants’ motion for summary
For the reasons that follow, defendants’ motion will
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
That same month, Mooney was placed on paid
administrative leave pending investigation.
that there was probable cause to arrest Mooney for theft.
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,
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.
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
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.
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
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
In May, 2013, Mooney was acquitted after a jury trial in
Framingham District Court.
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.
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.
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
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
The City appealed that decision to the Massachusetts
Superior Court pursuant to M.G.L. c. 150C § 11.
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
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
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
[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
The contract afforded Cummings the right, during the
hearing, to be
represented by counsel, to question, confront and crossexamine witnesses, to introduce evidence and to conduct
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”.
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.
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.
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 (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 (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
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.
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
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 law. Perez–Acevedo v.
Rivero–Cubano, 520 F.3d 26, 30 (1st Cir. 2008).
The parties agree that Cummings possessed a property
interest in his employment by virtue of his employment
agreement. Cf. Nwaubani v. Grossman, 199 F. Supp. 3d 367, 380
(D. Mass. 2016), aff’d, No. 16-2105, 2017 WL 3973915 (1st Cir.
June 21, 2017) (finding that for-cause termination provision
created property right for state university professor).
the issue is whether the City and Mayor deprived Cummings of
that interest without adequate process.
“Pre-termination and post-termination proceedings are not
evaluated for constitutional adequacy in isolation” from each
other. Senra v. Town of Smithfield, 715 F.3d 34, 39 (1st Cir.
A post-deprivation remedy may cure a pre-deprivation
procedural inadequacy caused by the random or unauthorized
conduct of defendants. Hadfield v. McDonough, 407 F.3d 11, 21
(1st Cir. 2005).
Because Cummings received adequate post-termination
remedies his procedural due process claim fails.
1. Pre-termination procedures
Plaintiff asserts that the pre-termination procedures,
including the independent investigation and hearing, were
He puts forth the theory defendants attempted “to
make plaintiff a scape goat (sic) for the claims asserted
against the defendants” in Mooney’s demand letter.
Cummings explains, “the defendants initiated a sham
investigation” and appointed Rooney, “who answers directly to
defendant Warren” to preside over the termination hearing.
The Fourteenth Amendment requires “at a minimum, some kind
of notice and some kind of opportunity to be heard.” Clukey v.
Town of Camden, 717 F.3d 52, 59 (1st Cir. 2013) (citing
Dusenbery v. United States, 534 U.S. 161, 167, (2002))
(additional citation omitted).
A termination hearing “need not
be elaborate” but must provide the employee
(1) oral or written notice of the charges against him, (2)
an explanation of the employer's evidence, and (3) an
opportunity to present his side of the story.
Chmielinski v. Massachusetts, 513 F.3d 309, 316 (1st Cir. 2008))
(internal quotation marks omitted) (quoting Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 546 (1985)).
Plaintiff received notice of the charges against him in the
letter he received on September 11, 2012.
He was given an
explanation of the employer’s evidence in the form of an
executive summary of the investigation and the investigative
report of the independent investigator.
represented by counsel at the hearing and called three
He was present at the hearing but chose not to
Nevertheless, plaintiff maintains that he did not
receive a real opportunity to present his side of the story
because Robert Rooney, who presided over the hearing, had made
up his mind before it started.
As a general rule, “it is not required that a hearing be
conducted before an impartial decisionmaker.” Acosta-Sepulveda
v. Hernandez-Purcell, 889 F.2d 9, 12 (1st Cir. 1989).
contract may, as it does here, provide that the Mayor may
preside over the hearing. See id. (“In fact, the hearing may be
presided over by the employer himself.”) (citing Feliciano–
Angulo v. Rivera Cruz, 858 F.2d 40, 44 (1st Cir. 1988)).
allege that intolerable partiality arose, a plaintiff
must overcome the presumption that administrators are men
of conscience and intellectual discipline, capable of
judging a particular controversy fairly on the basis of its
own circumstances, and must demonstrate an actual risk of
bias or prejudgment.
Brasslett v. Cota, 761 F.2d 827, 837 (1st Cir. 1985) (internal
quotation marks omitted) (citing Withrow v. Larkin, 421 U.S. 35,
The actual risk “must be shown by a specific
demonstration of partiality.” Duhani v. Town of Grafton, 52 F.
Supp. 3d 176, 182 (D. Mass. 2014) (internal quotation marks
omitted) (citation omitted).
Surveying the evidence in the
light most favorable to Cummings, plaintiff has made that
Plaintiff objects that the Mayor selected a “designee who
answers directly” to him.
The employment agreement provided,
however, that the hearing officer was to be “the mayor or his
If the Mayor himself was contractually permitted to
preside over the hearing, a fortiori the designation of Riley,
the chief operating officer of the City, was not inappropriate.
Riley’s position as chief operating officer does not demonstrate
a specific demonstration of partiality. Cf. id. (fact that
person who made original decision to terminate employee also
served as appointing authority, hearing officer and fact witness
insufficient to demonstrate adjudicator was partial).
On the other hand, Cummings alleges that at the press
conference prior to the hearing, Warren “had already clearly
stated his intent to terminate plaintiff.”
A plaintiff may
establish that a hearing was insufficient where “the outcome of
his pre-termination hearing was predetermined.” Id. at 183.
Mayor’s statement that Cummings’ behavior is “unacceptable” and
“is not tolerated and will not be tolerated” in the City is not
a pellucid statement that the Mayor intended to terminate
The Mayor’s firm statement was not dispositive.
could have been interpreted as anticipating discipline in the
form of a public reprimand or a poor evaluation on Cummings’
contractually required performance evaluations or termination.
At the summary judgment stage, however, the Court views the
evidence in the light most favorable to Cummings and draws all
reasonable inferences in his favor. Del Valle-Santana v.
Servicios Legales De Puerto Rico, Inc., 804 F.3d 127, 128 (1st
Plaintiff points to the proceedings before Riley to
demonstrate that Riley’s mind was already made up before the
He notes, for instance, that Riley sided with the City
on its motion in limine to limit the testimony of Mooney.
arbitrator found that the excluded testimony, concerning
Mooney’s possible motivation, was “absolutely and obviously
necessary to evaluate her credibility.”
Finally, Cummings notes
that his motion requesting that Riley recuse himself was denied.
Viewing the facts in the light most favorable to Cummings,
“the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Taylor v. Am. Chemistry
Council, 576 F.3d 16, 24 (1st Cir. 2009) (quoting Chadwick v.
WellPoint, Inc., 561 F.3d 38, 43 (1st Cir. 2009)).
a genuine issue of material fact exists as to whether Cummings
was afforded an adequate pre-termination hearing. See id.
2. Post-termination procedures
Notwithstanding the procedural deficiencies in Cummings’
pre-termination hearing, a plaintiff must demonstrate that no
adequate post-deprivation remedies were made available in order
to succeed on a procedural due process claim.
See Cronin v.
Town of Amesbury, 81 F.3d 257, 260–61 (1st Cir. 1996) (per
Plaintiff contends that the City’s vexatious appeals,
combined with the pre-termination infractions, violated his
right to due process.
Defendants respond that Cummings was
afforded due process by successfully availing himself of
Cummings received adequate post-deprivation remedies.
appealed his termination to an arbitrator who granted him
Indeed, he prevailed twice in his post-
termination arbitral proceedings against the City.
alleges, without citation to any case law, that the City causing
the arbitral hearing to conclude four months later than
scheduled constituted “an unreasonable pattern of delays”.
see Alton Land Trust v. Town of Alton, 745 F.2d 730, 732 (1st
Cir. 1984) (two-and-a-half year litigation not inordinate
Plaintiff accuses the City of appealing the arbitrator’s
decision on “frivolous grounds.”
Although both the Superior
Court and Appeals Court sided with Cummings, neither court
deemed the City’s argument “frivolous”, nor did plaintiff seek,
much less receive, sanctions against the City for filing a
frivolous appeal. Cf. Ressler v. Deutsche Bank Tr. Co. Americas,
92 Mass. App. Ct. 502 (2017) (declining to impose sanctions for
frivolous appeal after determining that appellant’s arguments
Finally, plaintiff alleges that defendants have “failed to
make plaintiff whole despite several court orders mandating them
to do so.”
Plaintiff does not specify in what way he has not
been made whole.
He suggests that he was denied “the
opportunity to return to his position as chief of police” even
though the arbitrator, on remand, determined that reinstatement
was not an appropriate remedy.
In any event, Cummings’ remedy
for such an alleged violation is an order to enforce the
judgment from the appropriate forum, not a procedural due
process claim in this one. See Cronin, 81 F.3d at 260 (delay did
not render post-deprivation remedy inadequate because “the
possibility” of plaintiff receiving the remedy remained).
Because plaintiff was afforded adequate post-deprivation
remedies, his claim of a procedural due process violation fails
as a matter of law.
Accordingly, defendants’ motion for summary
judgment will, with respect to Count I, be allowed.
Count II: 42 U.S.C. § 1983 - Substantive Due Process
Plaintiff contends that the intentional delay and frivolous
appeals by the City, combined with the pre-termination abuses,
are so egregious as to be “conscious shocking” in violation of
the due process clause which, in turn, amounts to a violation of
42 U.S.C. § 1983.
Defendants respond that the plaintiff offers
“no facts to support any egregious behavior” by the Mayor or
Substantive due process protects against arbitrary and
capricious deprivations of protected interests. Licari v.
Ferruzzi, 22 F.3d 344, 347 (1st Cir. 1994).
To prevail on a
substantive due process claim, a plaintiff must allege that the
defendants' actions were “so egregious as to shock the
conscience.” Gianfrancesco v. Town of Wrentham, 712 F.3d 634,
639 (1st Cir. 2013).
To shock the conscience, the conduct must
be “truly outrageous, uncivilized, and intolerable.” Hasenfus v.
LaJeunesse, 175 F.3d 68, 72 (1st Cir. 1999).
Cummings was terminated from his employment in a hearing
that may have been inadequate.
He then appealed that decision
and was awarded reinstatement by an independent arbitrator.
Plaintiff fails to cite a case even faintly analogous to these
facts in which a substantive due process claim succeeded.
is not surprising as the defendants’ actions here do not
“remotely approach the level of a substantive due process
violation.” Gonzalez-Droz v. Gonzalez-Colon, 660 F.3d 1, 16 (1st
Defendants’ motion for summary judgment will, with respect
to Count II, be allowed.
C. Count V: M.G.L. c. 12 § 11I – Massachusetts Civil Rights
Plaintiff maintains that the same conduct giving rise to
the alleged violations of § 1983 also violate MCRA.
responds that plaintiff has failed to demonstrate that Warren
threatened, intimidated or coerced Cummings.
Section 11I of the MCRA provides for a cause of action to
person whose exercise or enjoyment of rights secured by the
constitution or laws of the United States, or of rights
secured by the constitution or laws of the commonwealth,
has been interfered with, or attempted to be interfered
with, as described in section 11H . . . .
M.G.L. c. 12 § 11I.
Section 11H, in turn, specifies that the interference must
take place “by threats, intimidation or coercion, or attempt to
interfere by threats, intimidation or coercsion . . . .” M.G.L.
c. 12 § 11H.
To establish a claim under MCRA, a plaintiff must prove
that 1) his exercise or enjoyment of rights secured by the
Constitution or laws of either the United States or of the
Commonwealth, 2) has been interfered with, or attempted to be
interfered with and 3) that the interference or attempted
Plaintiff advances this claim only against defendant Warren in
his individual capacity.
interference was by “threats, intimidation or coercion”. Swanset
Dev. Corp. v. City of Taunton, 423 Mass. 390, 395 (1996).
Threats, intimidation and coercion are defined such that:
“Threat”...involves the intentional exertion of pressure to
make another fearful or apprehensive of injury or harm.
“Intimidation” involves putting in fear for the purpose of
compelling or deterring conduct. [“Coercion” is] “the
application to another of such force, either physical or
moral, as to constrain him to do against his will something
he would not otherwise have done.”
Planned Parenthood League of Massachusetts, Inc. v. Blake, 417
Mass. 467, 474 (1994).
As explained above, plaintiff has not established that
Warren interfered with his constitutional due process rights.
Furthermore, he sets forth no specific facts demonstrating that
Warren threatened, intimidated or coerced him.
submits that Warren’s press conference, designation of Riley as
the hearing officer and second termination of Cummings
constituted “consistent use of threats and coercive tactics.”
Those allegations, however, “fall well short of the types of
coercive conduct” found in cases that have sustained a MCRA
violation. See Horne v. City of Boston, 509 F. Supp. 2d 97, 115
(D. Mass. 2007) (collecting cases).
Because plaintiff has failed to establish that defendant
interfered with his constitutional rights and failed to
demonstrate that Warren used threats, intimidation or coercion,
defendants’ motion for summary judgment will, with respect to
Count V, be allowed.
D. Count VI: Intentional Interference with Advantageous
Cummings submits that defendants caused him harm by
interfering with his employment contract.
that plaintiff has failed to demonstrate that either Warren or
the City acted with actual malice.
A claim of intentional interference with an advantageous
business relationship must assert that 1) plaintiff had a
business relationship or anticipated a contract of economic
benefit, 2) defendant knew of the relationship, 3) defendant
interfered with the relationship through an improper motive or
means and 4) plaintiff suffered a loss of advantage as a direct
result of defendant's conduct. Am. Private Line Servs., Inc. v.
E. Microwave, Inc., 980 F.2d 33, 36 (1st Cir. 1992) (citing
United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 812
To satisfy the third element, plaintiff must allege
“wrongfulness beyond the interference itself.” James L. Miniter
Ins. Agency, Inc. v. Ohio Indem. Co., 112 F.3d 1240, 1250 (1st
Cir. 1997) (citing Geltman, 406 Mass. at 816).
Such improper conduct may exist if a party “used threats,
misrepresented any facts [or] defamed anyone” in the course of
the interference. Geltman, 406 Mass. at 817. Where a plaintiff
sues a municipal official or municipality, a plaintiff must show
that “actual malice, that is, a spiteful, malignant purpose,
unrelated to the legitimate municipal interest” was the
controlling factor in the interference. Cachopa v. Town of
Stoughton, 72 Mass. App. Ct. 657, 661-62 (2008) (quoting
Blackstone v. Cashman, 448 Mass. 255, 261 (2007)) (internal
quotation marks omitted); cf. Blackstone, 448 Mass. at 265
(explaining that “actual malice” is a “higher standard” than
Actual malice is “a burden placed on the
plaintiff, not a defense that must be proved by the defendant.”
Blackstone, 448 Mass. at 261.
The record includes evidence that the Mayor announced that
Cummings’ actions were “inappropriate and unacceptable” and
“will not be tolerated”.
It also shows that the City hired an
independent investigator who, after investigation, found
believed that Mooney’s allegations against Cummings were valid.
Viewing the evidence in the light most favorable to plaintiff,
he may be able to demonstrate that the result of his pretermination hearing was preordained.
His assertion that Warren
set him up as a scapegoat to avoid the financial liability that
could arise from Mooney’s claims, on the other hand, relies on
speculation instead of evidence.
At the summary judgment stage, the nonmovant must “set
forth specific facts showing that there is a genuine issue for
trial.” Liberty Lobby, 477 U.S. at 250 (footnote omitted)
Instead, Cummings relies on conclusory
statements and speculation.
He may not “rest upon mere
allegation” but instead must “present affirmative evidence” that
defendants acted with a spiteful, malignant purpose. See id. at
Cummings fails to point to any specific facts
demonstrating that defendants displayed actual malice.
Because plaintiff has failed to demonstrate that defendants
acted with actual malice, defendants’ motion for summary
judgment will, with respect to Count VI, be allowed.
E. Count VII: Breach of Good Faith and Fair Dealing
Plaintiff argues that defendants breached the implied
covenant of good faith and fair dealing by affording him a
prejudicial hearing in the course of unreasonable posttermination delays.
Defendants rejoin that Cummings availed
himself of the full benefit of the covenant through the remedial
process of arbitration.
In Massachusetts, all contracts contain an implied covenant
of good faith and fair dealing which provides that each party
involved will not
do anything that will have the effect of destroying or
injuring the right of the other party to receive the fruits
of the contract.
K.G.M. Custom Homes, Inc. v. Prosky, 468 Mass. 247, 254 (2014).
“The scope of the [implied] covenant is only as broad as the
contract that governs the particular relationship.” Ayash v.
Dana–Farber Cancer Inst., 443 Mass. 367, 385 (2005).
Plaintiff, as permitted by his contract, appealed the
termination decision to an arbitrator and twice received redress
from that arbitrator.
Accordingly, he was not denied the
“fruits of the contract”.
In addition, the employment agreement
at issue provided Cummings with “for cause” protection.
plaintiff cannot demonstrate a breach of the covenant of good
faith and fair dealing where, as here, “an explicit contractual
provision giv[es] the employee greater protection than the
covenant.” Bertrand v. Quincy Mkt. Cold Storage & Warehouse Co.,
728 F.2d 568, 571 (1st Cir. 1984); see also Azzi v. W. Elec.
Co., 19 Mass. App. Ct. 406, 410 (1985).
Defendant’s motion for summary judgment will, with respect
to Count VII, be allowed.
F. Count VIII: Intentional Infliction of Emotional Distress 3
Plaintiff proposes that defendants’ actions “amounted to
extreme and outrageous conduct” sufficient to constitute the
tort of intentional infliction of emotional distress.
Defendants assert that, even if plaintiff’s allegations were
true, they would not constitute extreme and outrageous conduct.
The Massachusetts Tort Claims Act bars recovery against a
municipality or municipal officials in their official capacity
for “any claim arising out of an intentional tort.” M.G.L. c.
258, § 10(c). Accordingly, plaintiff may bring this claim only
against defendant Warren in his personal capacity.
In the Commonwealth of Massachusetts, the tort of
intentional infliction of emotional distress may lie against
one who, without a privilege to do so, by extreme and
outrageous conduct intentionally causes severe emotional
distress to another . . . .
George v. Jordan Marsh Co., 359 Mass. 244, 255 (1971).
Conduct is extreme and outrageous if it is “beyond all
possible bounds of decency, and utterly intolerable in a
civilized community.” Payton v. Abbott Labs, 386 Mass. 540, 437
The actions must be so egregious that “the recitation
of the facts to an average member of the community would . . .
lead him to exclaim, ‘Outrageous!’” Borden v. Paul Revere Life
Ins. Co., 935 F.2d 370, 380 (1st Cir. 1991); see also Foley v.
Polaroid Corp., Inc., 400 Mass. 82, 99 (1987) (quoting
Restatement (Second) of Torts, § 46, comment d (1965)).
The facts of this case do not approach that high standard.
The Massachusetts Supreme Judicial Court has adopted this
demanding test to limit
frivolous suits and avoid litigation in situations where
only bad manners and mere hurt feelings are involved.
Agis v. Howard Johnson Co., 371 Mass. 140, 145 (1976) (citation
Plaintiff states that “the totality of the circumstances”
demonstrates extreme and outrageous conduct.
case law in support of that claim.
He provides no
Warren’s actions included
holding a press conference, terminating the plaintiff and
appealing an adverse arbitration decision.
Such conduct, even
including embellishments which are not supported by the record,
would not lead an average member of the community to exclaim,
Defendants’ motion to dismiss will, with respect to Count
VIII, be allowed.
For the foregoing reasons, defendants’ motion for summary
judgment (Docket No. 52) is ALLOWED.
/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated February 6, 2018
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