Lawless v. Town of Freetown et al

Filing 210

Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER. For the foregoing reasons, Freetown's Renewed Motion for [Partial] Summary Judgment [Doc. No. 190 ] is GRANTED in part and DENIED in part. Plaintiff may proceed on her section 1 983 claim, limited to the argument that the Board members had decided to terminate Lawless prior to the pretermination hearing and that no argument or evidence she presented would have changed the result.IT IS SO ORDERED. Please see attached. (Kelly, Danielle)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
DIANE LAWLESS,

*
*
Plaintiff,
*
*
v.
*
*
TOWN OF FREETOWN, by and through *
its Treasurer/Collector, JESSICA
*
THOMAS, PAUL SADECK, individually *
and in his official capacity as member of
*
the Board of Selectmen, LEE
*
BAUMGARTNER, individually and in his *
official capacity as member of the Board
*
of Selectmen, and LISA A. PACHECO,
*
individually and in her official capacity as *
member of the Board of Selectmen,
*
*
Defendants.
*

Civil Action No. 18-cv-11089-IT

MEMORANDUM & ORDER
November 14, 2023
TALWANI, D.J.
Plaintiff Diane Lawless, a former municipal employee, brought this action against
Defendants Town of Freetown (“Freetown” or “Town”) and the members of its Board of
Selectmen (the “Board members”) in their individual and official capacities. Following the
individual Board members’ successful interlocutory appeal as to their qualified immunity
defense, Freetown filed a Renewed Motion for [Partial] Summary Judgment [Doc. No. 190]
seeking summary judgment on Plaintiff’s claim under 42 U.S.C. § 1983 (“section 1983”) against
the Town. 1 The court rejects Freetown’s threshold arguments that it is entitled to summary

1

Although labeled a “Motion for Summary Judgment,” the motion does not challenge Lawless’s
breach of contract claim.

judgment on the ground that the section 1983 claim as to the Town is new, unadvertised, and
waived. On the merits, the motion is DENIED as to the claim regarding pre-termination due
process and GRANTED as to the claim regarding post-termination process.
I.

Procedural History
The procedural history of this case prior to the interlocutory appeal is addressed in the

court’s Memorandum and Order [Doc. No. 122], in which the court granted Defendants’ Motion
for Summary Judgment [Doc. No. 93] as to Plaintiff’s claims of libel against the Board members
(Count I); violation of her due process rights under the Massachusetts Declaration of Rights
(Count III) against Freetown and the Board members; and ultra vires acts against Freetown and
the Board members (Count IV), and denied the motion as to Plaintiff’s claims under section 1983
(Count II) against Freetown and the Board members and for breach of contract (Count V) as to
the Town. On the section 1983 claim, the court found that based on the disputed factual record,
“a reasonable jury could find that, in this case, the outcome of the hearing was predetermined
and therefore violated Lawless’ due process right.” Mem. & Order 20 [Doc. No. 122]. The court
ignored the individual Board members’ failure to raise a qualified immunity defense in their
answer but rejected that defense finding that “‘an objectively reasonable official would
indubitably have known that depriving plaintiff of . . . a meaningful opportunity to respond . . .
violated the fourteenth amendment.’” Id. at 23 (quoting Collins v. Marina-Martinez, 894 F.2d
474, 481 (1st Cir. 1990)).
The individual Defendants sought review of the denial on summary judgment of the
qualified immunity defense in an interlocutory appeal. See Notice of Interlocutory Appeal [Doc.
No. 126]. During the pendency of the interlocutory appeal, this court held several pretrial and
status conferences to determine if any portions of the matter could proceed while the Board

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members’ interlocutory appeal was pending. See Elec. Clerk’s Notes for Proceedings (March 23,
2021) [Doc. No. 124]; Tr. of Pretrial Videoconference (September 20, 2021) [Doc. No. 171]; Tr.
of Pretrial Videoconference (November 8, 2021) [Doc. No. 176]; Elec. Clerk’s Notes for
Proceedings (March 31, 2022) [Doc. No. 175]. As discussed further below, the Town’s claim of
a waiver stems from a colloquy during one of these conferences.
On March 22, 2023, the First Circuit reversed this court’s denial of summary judgment
on the individual Board members’ qualified immunity defense, and remanded the case for further
proceedings. Lawless v. Town of Freetown, 63 F.4th 61 (1st Cir. 2023).
On remand, the court invited the Town to file a second summary judgment motion to tee
up the parties’ ongoing dispute as to Plaintiff’s section 1983 claim against the Town. See Elec.
Clerk’s Notes [Doc. No. 187]. Freetown filed the pending Renewed Mot. for Summ. J. [Doc. No.
190], and the parties have submitted extensive briefing on the issues presented. See Pl.’s Opp’n
[Doc. No. 192]; Def’s. Reply [Doc. No. 197]; Def’s. Opp’n to Pl.’s Mot. for Leave to File a
Surreply [Doc. No. 204]; Pl.’s Surreply [Doc. No. __].
II.

The Town’s Procedural Challenge to Plaintiff’s Section 1983 claim
The Town first seeks summary judgment on Plaintiff’s section 1983 claim because

Plaintiff purportedly never brought, and cannot now “retroactively interject,” a Monell 2 claim
against the Town. Def. Town of Freetown’s Renewed Mem. of Law in Supp. of its Mot. for
Summ. J. (“Def. Freetown’s Mem.”) 1-2 [Doc. No. 191]. The Town contends that neither
Plaintiff’s Amended Complaint [Doc. No. 1-1] nor its subsequent briefing and arguments before
the court advertised a Monell claim. Id. Defendant Freetown asserts that “[w]hat is clear is that
Plaintiff’s Section 1983 claim was not pled as two separate claims,” one against the individuals

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Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978).
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and one against the Town, and that “[Plaintiff’s] pleadings never once mention Monell or singleinstance theories of municipal liability.” Id. at 6. According to Defendant, Plaintiff’s failure to
plead a separate Monell claim against the Town forecloses the possibility of municipal liability
altogether. Id. at 8-9. Further, Defendant claims that despite ample opportunity to make the court
aware of its alleged claim against Freetown, Plaintiff repeatedly failed to do so. Id. The Town
concludes Plaintiff’s Monell claim, if it ever existed, has been waived. Id. at 9.
Plaintiff counters that Defendant has known from the start that Plaintiff brought a section
1983 claim against the Town because the Town has always been a named Defendant in the case
and because Plaintiff always referred to plural “Defendants” when discussing her section 1983
claim. Memo. in Supp. of Pl. Diane Lawless’ Opp’n to Defs.’ Renewed Mot. for Summ. J. 2-4
(“Pl.’s Mem.) [Doc. No. 193]. She argues that Defendants and the court have understood
throughout the case that she has a claim against the Town, and that claim was not and did not
need to be labeled a “Monell” claim. Id. at 5. Plaintiff argues that she brought one section 1983
claim against four Defendants, the three individual Board members and the Town, and that the
Town’s liability is direct. Id. at 4; see also Bd. of the Cty. Comm’rs v. Brown, 520 U.S. 397, 406
(1997) (a decision “duly promulgated by city lawmakers, could trigger municipal liability if the
decision itself were found to be unconstitutional”).
Regardless of how Plaintiff has labeled the claim, the court agrees with Plaintiff that she
brought and continues to maintain a section 1983 municipal liability claim against the Town, as
permitted by Monell, for alleged procedural due process violations. Through summary judgment
and on interlocutory appeal, Plaintiff, Defendants, this court, and the First Circuit have discussed
Plaintiff’s section 1983 claim as including a claim against the Town. A review of the briefing
and decisions reveals that Plaintiff consistently asserted—and the court and Defendants

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consistently understood Plaintiff to be asserting—that the Town is liable under section 1983. See
Defs.’ Mem. in Supp. of Mot. to Dismiss 2 [Doc. No. 10] (“Counts I – IV are brought against the
Town and the individually named Defendants in their individual and official capacities”); Mem.
& Order on Summ. J. 18 [Doc. No. 122] (“Lawless’ second claim alleges a violation of her due
process rights under section 1983 against the Board members and Freetown”); Lawless, 63 F.4th
at 64 (“the board members joined with the Town in seeking summary judgment against
Lawless’s due process claim”); id. at 70, n.8 (“Because our appellate jurisdiction is founded on
the qualified immunity question, the Town’s potential municipal liability on the due process
claim is not before us”).
Defendant asserts next that, in any event, Plaintiff waived her section 1983 claim as to
the Town. The Town contends the purported waiver occurred during an initial pretrial conference
on November 8, 2021, while the interlocutory appeal was pending. The court noted during that
conference that it did not have jurisdiction over the section 1983 claim given the Board
members’ appeal. See Tr. Of Pretrial Videoconference 4:8-11, 16-17 [Doc. No. 176]; see also
United States v. Brooks, 145 F.3d 446, 455 (1998) (“as a general rule, the filing of a notice of
appeal ‘divests a district court of authority to proceed with respect to any matter touching upon,
or involved in, the appeal’”) (quoting United States v. Mala, 7 F.3d 1058, 1061 (1st Cir. 1993)).
In exploring the option of proceeding on the contract dispute, the court had the following
colloquy with counsel:
THE COURT: The – one claim is against the town. That’s the breach of
contract claim.
[DEFENDANTS’ COUNSEL]: Yes, Your Honor.
THE COURT: And the other claim is against the individuals?
[DEFENDANTS’ COUNSEL]: Yes, Your Honor.
[PLAINTIFF’S COUNSEL]: And the town.
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THE COURT: Because of – on – against the town how? It’s a – why is it
against the town? Is there a Monell claim? I can’t remember. I don’t think
there is.
[PLAINTIFF’S COUNSEL]: No, Your Honor. But I don’t think – I mean, I’m
almost certain that we named the town in the 1983 claim, and I don’t believe
that the town ever moved for summary judgment on that point.
THE COURT: Well, there’s no Monell claim against the town, is there?
[DEFENDANTS’ COUNSEL]: No. There was never a Monell claim in this
case. It’s a procedural due process claim, which is against the individuals,
which is why we’re before the First Circuit on the interlocutory appeal.
....
[PLAINTIFF’S COUNSEL]: As a practical matter, Your Honor, we have
claims against the individual defendants in their official capacities.
Tr. Of Pretrial Videoconference 7:7-8:1-2, 8:21-23 [Doc. No. 176] (emphasis added).
Plaintiff’s counsel explained that he did not label Plaintiff’s claim as a Monell claim
because her due process claim against the Town sounded in direct liability. See Pl.’s Mem. 12-14
[Doc. No. 193]. And he repeatedly noted during that colloquy that he had asserted a section 1983
claim against the Town, and that he had asserted claims against the individual Defendants in
their official capacities. In contrast, Defendants’ counsel’s statement that “[it]’s a procedural due
process claim, which is against the individuals, which is why we’re before the First Circuit on
the interlocutory appeal” was misleading where only the individuals had a right to an
interlocutory appeal as to their qualified immunity defense. That limitation on the appeal in no
way meant that Plaintiff had not asserted a claim against the Town. On this record, the court
finds no waiver of Plaintiff’s section 1983 claim for alleged procedural due process violations
against Freetown. 3

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The court notes further that Freetown was in no way prejudiced by Plaintiff’s November 8,
2021 statement that there was no Monell claim where that single statement occurred after all
discovery was completed and while the interlocutory appeal was pending. Instead, it appears that
the Town is seeking to exploit the labeling confusion as Plaintiff has consistently maintained that
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III.

The Town’s Substantive Challenge to Plaintiff’s Section 1983 claim
Defendant also contends that Plaintiff’s procedural due process claim has been flatly

rejected by the First Circuit and is otherwise unsupported by law. Def. Freetown’s Mem. 9-13
[Doc. No. 191]. Defendant argues that the First Circuit squarely held that the pre-termination
hearing provided to Plaintiff satisfied the requirements of due process, and thus Plaintiff’s “sham
hearing” theory is dead in the water as to the Town. Id.
Plaintiff counters that the opinion on interlocutory appeal has no bearing on her claim
against the Town. Pl.’s Mem. 15-19 [Doc. No. 193]. She contends that the First Circuit’s
decision was narrowly focused on the issue of qualified immunity and that “[a]spects of the First
Circuit’s [] decision besides its opinion on the individual defendants’ qualified immunity are
dicta.” Pl.’s Mem. 21 [Doc. No. 196].
The court finds neither framework correct. The First Circuit asserted “jurisdiction over
the [individual Board Members’] interlocutory appeal of [this] court’s ‘denial of summary
judgment on qualified immunity only insofar as the appeal rest[ed] on legal, rather than factual
grounds,’” Lawless, 63 F.4th at 64-65 (quoting McCue v. City of Bangor, 838 F.3d 55, 57 (1st
Cir. 2016)). Accordingly, the First Circuit decision does not alter this court’s understanding of
the factual record on summary judgment. The First Circuit also confirmed that “[b]ecause [its]
appellate jurisdiction is founded on the qualified immunity question, the Town’s potential

she has a direct claim against the Town including during that hearing itself. Indeed, playing
hardball (and raising questions about possible conflicts of interest in the representation of both
the Town and the individuals), Defendants’ counsel marshaled this confusion to refuse to agree
to dismissal of the claims against the individual Board Members then pending before the First
Circuit unless Plaintiff agreed to forfeit her direct liability claim against the Town. See Def.
Freetown’s Renewed Mot. for Summ. J., Ex. E (March 2022 Emails between counsel) [Doc. No.
191-5].
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municipal liability on the due process claim is not before [the First Circuit].” Lawless, 63 F.4th
at 70 n.8.
Nonetheless, under the First Circuit’s “law of the case” doctrine, a mandate for further
proceedings “with only a few exceptions, forbids . . . a lower court from relitigating issues that
were decided by a higher court, whether explicitly or by reasonable implication, at an earlier
stage of the same case.” Municipality of San Juan v. Rullan, 318 F.3d 26, 29 (1st Cir. 2003). At
the same time, “[i]t is equally clear that issues that were not decided by the appellate court and
that are thus outside the scope of the mandate are not affected by the mandate.” De JesusMangual v. Rodriguez, 383 F.3d 1, 6 (1st Cir. 2004); see also Biggins v. Hazen Paper Co., 111
F.3d 205, 209 (1st Cir. 1997) (“mandates require respect for what the higher court decided, not
for what it did not decide.”).
Accordingly, the court reconsiders the Town’s initial request for summary judgment,
taking into account the First Circuit’s decision on the interlocutory appeal as required under the
law of the case doctrine and mandate rule.
A. Standard of Review
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate
when “the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is material when, under
the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Baker v. St. Paul Travelers Ins. Co.., 670 F.3d 119, 125
(1st Cir. 2012). A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248.

8

The moving party bears the initial burden of establishing the absence of a genuine dispute
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This burden can be satisfied
in two ways: (1) by submitting affirmative evidence that negates an essential element of the nonmoving party’s claim or (2) by demonstrating that the non-moving party failed to establish an
essential element of its claim. Id. at 323-24.
Once the moving party establishes the absence of a genuine dispute of material fact, the
burden shifts to the non-moving party to set forth facts demonstrating that a genuine dispute of
material fact remains. Id. The non-moving party cannot oppose a properly supported summary
judgment motion by “rest[ing] upon mere allegation[s] or denials of [the] pleading[s].”
Anderson, 477 U.S. at 256. Rather, the non-moving party must “go beyond the pleadings and by
[his or] her own affidavits, or by ‘the depositions, answers to interrogatories, and admissions on
file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S.
at 324 (quoting Fed. R. Civ. P. 56(e)). Disputes over facts “that are irrelevant or unnecessary”
will not preclude summary judgment. Anderson, 477 U.S. at 248.
When reviewing a motion for summary judgment, the court must take all properly
supported evidence in the light most favorable to the non-movant and draw all reasonable
inferences in the non-movant’s favor. Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990).
“Credibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge, [when] he [or she] is ruling on a
motion for summary judgment.” Anderson, 477 U.S. at 255.
B. Factual Record
The factual record is set forth in this court’s Memorandum and Order [Doc. No. 122]
which is incorporated herein in full. Of particular note, the court found:

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[T]here is evidence for a reasonable jury to find that the Board had made up its
mind to terminate Lawless prior to the hearing and that no evidence she presented
would have changed the result.
First, at the April 2, 2014 executive session—more than a year before
Lawless’ disciplinary hearing—the Board members agreed that they did not trust
Lawless. Apr. 2, 2014 Exec. Session Minutes [Doc. No. 95-17]. After Pacheco
suggested that the Board hold a disciplinary hearing, Sadeck stated that Lawless
was appointed, not elected, and that “is the end of story.” Id. A reasonable jury
could find that Sadeck meant that the Board should terminate Lawless without the
benefit of a disciplinary hearing. At another executive session later that month,
Baumgartner said that he would “never get past the trust thing” and expressed his
belief that Lawless “was not truthful” with the Board. Id.
Then, at the November 17, 2014 executive session, Pacheco stated that she
did not trust Lawless and believed that Lawless had taken advantage of Healey to
get the password to Estrella’s computer. Baumgartner said that, in his opinion,
Lawless “should be gone.” Nov. 17, 2014 Exec. Session Minutes [Doc. No. 9521].
Next, at the at the April 7, 2015 executive session, the Board members
voted unanimously to hold a “termination hearing” for Lawless. Apr. 7, 2015
Exec. Session Minutes [Doc. No. 96-4]. During the same session, Town Counsel
advised the Board that they should promptly hire an interim Treasurer because the
“relationship [with Lawless] needs to be separated.” Id.
Finally, during the disciplinary hearings, a bystander overheard Sadeck
and Baumgartner discussing the hearing and heard one of them ask “why do we
have to do this dog and pony show, let’s just vote to terminate her and get it over
with.” Higgins Aff. [Doc. No. 109-23]. Once the hearing was over, the Board then
voted to terminate Lawless without deliberating or making any factual findings as
to the majority of the charges against her. Jun. 22 Hrg. Tr. 105-08 [Doc. No. 96].
Mem. and Order 20-21 [Doc. No. 122].
C. Discussion
As this court previously summarized:
Lawless’ second claim alleges a violation of her due process rights under section
1983 against the Board members and Freetown. Am. Compl. ¶¶ 186-224 [Doc.
No. 42]. Specifically, she claims that her disciplinary hearing was procedurally
inadequate because (1) the town’s witnesses were not sworn in; (2) the Board
admitted hearsay evidence; (3) the outcome of the disciplinary [hearing] was
predetermined; and (4) the Board did not afford her a constitutionally adequate
post-termination hearing. Pl’s Opp. 2-26 [Doc. No. 115].

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Mem. and Order at 18. The court considers Plaintiff’s claim in light of the First Circuit decision,
and also considers Plaintiff’s final argument regarding a post-termination hearing.
1. Pretermination Hearing
Because the interlocutory appeal concerned qualified immunity, the First Circuit needed
to identify what were “clearly established statutory or constitutional rights of which a reasonable
person would have known.” Lawless, 63 F.4th at 67 (quoting Pearson v. Callahan, 555 U.S. 223,
231 (2009)). The First Circuit explained that “the parties do not dispute that Lawless was entitled
under Massachusetts law to due process in connection with the for-cause termination of her
employment contract with the Town of Freetown.” Id. The Court continued:
Given this premise, it was clearly established that the essential components of a
pretermination due process hearing were “oral or written notice of the charges
against [her], an explanation of the employer’s evidence, and an opportunity to
present [her] side of the story.” It was also clearly established that “[t]o require
more than this prior to termination would intrude to an unwarranted extent on the
government’s interest in quickly removing an unsatisfactory employee.” Based on
our review of the summary judgment recitation of the facts provided by Lawless
and the district court, the pre-termination hearing in this case met all the essential
requirements of pre-deprivation process.
Id. (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985)).
The First Circuit explained that due process does not require absolute impartiality, and
that “it is clearly established that employing authorities may preside at termination hearings even
though they instituted the termination proceeding.” Id. at 68. It commented that “[t]o hold that
such [a predisposition to terminate] bias precludes the town officials from approving a
termination even after the employee is given notice and a chance to explain why termination is
not called for would be to require most small towns to surrender important responsibilities to
persons not accountable to local citizens.” Id. at 68 n.5. The Court concluded that “[g]iven that
the clear legal statements available in binding precedent tend more to frustrate than support
Lawless’s due process claim against the Appellants, we have little difficulty concluding that the
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doctrine of qualified immunity shields the Appellants from liability against Lawless’s due
process claim.” Id. at 69. In sum, the First Circuit’s decision squarely blocks Plaintiff’s claim
that she can show that the pretermination hearing was constitutionally insufficient based on the
Board members’ bias, even as to bias so substantial that it “plugged the Appellants’ ears so that
they did not actually hear her response.” Id. at 67.
But this court reached one further conclusion of fact and law not addressed by the First
Circuit (and with no impact on the qualified immunity analysis where the law concededly is not
clearly established), namely, that the evidence on summary judgment was sufficient for a
reasonable jury to find “that the Board had made up its mind to terminate Lawless prior to the
hearing and that no evidence she presented would have changed the result,” that is, that “the
outcome of the hearing was predetermined and therefore violated Lawless’ due process rights.”
Mem. and Order 20 [Doc. No. 122]. In other words, there was evidence from which a jury could
find that Defendants did not give Lawless “an opportunity to present [her] side of the story,”
Lawless, 63 F.4th at 67 (quoting Loudermill, 470 U.S. at 546), or “a chance to explain why
termination is not called for.” Id. at 68 n.5. Plaintiff may proceed to trial on this narrow claim,
and Defendant can be protected from the jury straying beyond this claim by instructions directing
the jury that any due process violation must be based on a finding that an irrevocable decision
was made to terminate Plaintiff in advance of the hearing and not on the Board members’ alleged
biased.
Finally, the First Circuit also observed that “[t]he alleged procedural default cannot be the
[Board’s] failure to reach the right result. Such a holding would turn any procedural due process
claim into a full judicial [or jury] review of discretionary administrative decisions.” Id. at 70 n. 8
(quoting Acosta-Sepulvada v. Hernandez-Purcell, 889 F.2d 9, 12 (1st Cir. 1989)). While it does

12

not appear that Plaintiff has asserted such a claim, to the extent that Plaintiff does seek to claim a
due process violation based on the “failure to reach the right result,” any such claim is barred.
2. Post-termination Hearing
The First Circuit directed this court also to consider Plaintiff’s post-deprivation remedies
available under Massachusetts law. Id. at 69.
Plaintiff argues that pre- and post-deprivation remedies must be decided together. Pl.’s
Surreply 9 [Doc. No. 201-1]. Plaintiff contends that (1) it is undisputed that Freetown did not
provide any post-deprivation hearing to Plaintiff and (2) a breach of contract action—the only
available remedy to Plaintiff—is “always an inadequate post-deprivation process in employment
cases.” Id. at 10 (citing Lujan v. G & G Fire Sprinklers, 532 U.S. 189, 196 (2001) and Clukey v.
Town of Camden, 717 F.3d 52, 61 (1st Cir. 2013)).
Defendant counters that Plaintiff misreads her cases on procedural due process. The
Town argues that where there were no deficiencies in the pre-termination process afforded to a
public employee, Plaintiff’s breach of contract remedy at state law is more than sufficient to
satisfy due process. Def. Town of Freetown’s Opp’n to Pl. Diane Lawless’ Mot. for Leave to File
a Surreply 6-8 [Doc. No. 204].
Defendant is correct. Both Lujan and Clukey involved Plaintiffs who had been provided
no pre-termination hearing by their employers. The question in both of those cases was what, if
any, post-deprivation remedy could cure the absence of a pre-termination process. See Lujan,
532 U.S. at 191; Clukey, 717 F.3d at 60.
In Lujan, the Supreme Court upheld a California statute authorizing the state to withhold
payments due a contractor on a public works project if the subcontractor failed to comply with
certain requirements. Lujan, 532 U.S. at 191. In reaching its conclusion, the Court distinguished

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the claimants in Lujan from claimants who had been deprived of a present entitlement. Id. at 196.
Where the claimants in Lujan were not deprived a present entitlement, the statutory scheme of
withholding payment was constitutionally valid where the claimants could sue for breach of
contract. Id. at 197. In cases where a present entitlement was denied, the court determined that
the availability of a state breach-of-contract remedy would not cure a total lack of predeprivation process. See id. at 190.
In Clukey, the First Circuit considered whether the availability of post-termination
remedies via, inter alia, state law breach of contract claims foreclosed a violation of procedural
due process claim where a municipal employee was not provided “any notice whatsoever” before
an adverse employment action. Clukey, 717 F.3d at 62. Neither Clukey nor Lujan supports
Plaintiff’s claim that the Town was required to provide her with a post-deprivation hearing to
comport with due process if her pre-termination hearing was not constitutionally deficient.
The “root requirement” of the Due Process Clause is “that an individual be given an
opportunity for a hearing before he is deprived of any significant property interest.” Loudermill,
470 U.S. at 542 (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971)). 4 Plaintiff has
pointed to no case, and the court has found none, that stands for the proposition that where pretermination process is constitutionally sufficient, an employer is required to provide more robust
post-termination process than available state breach-of-contract remedies.
In sum, Plaintiff is not entitled to a post-deprivation hearing.

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This root requirement underscores this court’s view that if the pretermination hearing was a
hearing in name only and an irrevocable decision had already been made, that supposed pretermination process is constitutionally insufficient.
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IV.

Conclusion
For the foregoing reasons, Freetown’s Renewed Motion for [Partial] Summary Judgment

[Doc. No. 190] is GRANTED in part and DENIED in part. Plaintiff may proceed on her section
1983 claim, limited to the argument that the Board members had decided to terminate Lawless
prior to the pretermination hearing and that no argument or evidence she presented would have
changed the result.
IT IS SO ORDERED.
November 14, 2023

/s/ Indira Talwani
United States District Judge

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