O'Rourke v. Hampshire Council of Governments et al

Filing 24

Judge Mark G. Mastroianni: MEMORANDUM AND ORDER entered. As follows: For the reasons stated, the court DENIES Defendants motion to dismiss (Dkt. No. 15 ) with respect to Plaintiffs 42 U.S.C. § 1983 claim (Count I), Plaintiffs Conspiracy to Viol ate 42 U.S.C. U.S.C. § 1983 (Count IV), and Plaintiffs breach of contract claim (Count II). Assuming Plaintiff has not conceded his Open Meeting Law claim (Count III), the court ALLOWS Defendants motion to dismiss this claim without prejudice. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
*
JOHN P. O’ROURKE,
*
*
Plaintiff,
*
*
v.
*
*
Civil Action No. 14-30216-MGM
HAMPSHIRE COUNCIL OF
*
GOVERNMENTS; WILLIAM R. BARNETT, *
in his Official Capacity as Chairman of the
*
Executive Committee of the Hampshire Council *
of Governments; EILEEN STEWART, in her *
Official Capacity as Vice Chairman of the
*
Executive Committee of the Hampshire Council *
Of Governments; CAROL P. CONSTANT, in *
her Official Capacity as a member of the
*
Executive Committee of the Hampshire Council *
of Governments; MICHAEL P. SARSYNSKI, *
JR., in his Official Capacity as a member of the *
Executive Committee of the Hampshire Council *
of Governments; GEORGE A. SYMBORSKI, *
in his Official Capacity as a member of the
*
Executive Committee of the Hampshire
*
Council of Governments; TODD D. FORD, in *
his Official Capacity as Executive Director of the *
Hampshire Council of Governments,
*
*
Defendants.
*
*
MEMORANDUM AND ORDER REGARDING DEFENDANTS’
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
(Dkt. No. 15)
August 7, 2015
MASTROIANNI, U.S.D.J.

I.

INTRODUCTION

John O’Rourke (“Plaintiff”), proceeding pro se, brings this action against the Hampshire
Council Governments, as well as individual members of the Executive Committee of the Council—
William R. Barnett, Eileen Stewart, Carol P. Constant, Michael P. Sarsynski, George A. Symborski,

and Todd D. Ford, in their official capacities (together, “Defendants”). On April 2, 2015,
Defendants moved to dismiss Plaintiff’s complaint. (Dkt No. 15.) Plaintiff opposed this motion on
May 11, 2015. (Dkt. No. 20.) The court took this motion under advisement without a hearing. (Dkt.
No. 22.)
After reviewing the parties’ submissions and the relevant law, the court denies Defendants’
motion to dismiss with respect to Plaintiff’s 42 U.S.C. § 1983 claim (Count I), Plaintiff’s Conspiracy
to Violate 42 U.S.C. § 1983 claim (Count IV), and Plaintiff’s breach of contract claim (Count II).
Assuming Plaintiff has not conceded his Open Meeting Law claim (Count III), the court will grant
Defendants’ motion to dismiss this claim without prejudice.
II.

PLAINTIFF’S FACTUAL ALLEGATIONS

On February 6, 2012, Plaintiff entered into a written employment agreement with the
Hampshire Council of Governments (the “Council”) to serve as the Council's Director of
Electricity. (Dkt. No 1, Complaint (“Compl.”) ¶ 13.) This agreement provides that “[a]ll provisions
of the . . . regulations and rules of the Council relating to personnel policy . . . as they now exist or
hereafter may be amended . . . shall apply to [Plaintiff].” (Compl. Ex. A. 1). Plaintiff was given the
aforementioned Council's Personnel Policies and Procedures Manual (the “Personnel Manual”),
which set forth the specific terms and conditions of his employment, describing itself as a “covenant
between the employer and employee.”1 (Compl. Ex. C. 2.) The Personnel Manual discusses, inter
alia, the purpose of, length of, and protocol for discharge during, an employee’s probationary period.
In relevant part, it specifically provides:
D. Probationary Period
1. Purpose
The manual and agreement were directly referenced in the Complaint, and were submitted by Plaintiff with his
Complaint as exhibits. (Compl. Ex. A & Ex. C.) Accordingly, the court may properly consider the text of it at this stage.
See Trans-Spec Truck Serv. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. Mass. 2008) (“Exhibits attached to the
complaint are properly considered part of the pleading ‘for all purposes,’ including Rule 12(b)(6).”).
1

2

The probationary period shall be utilized to observe an employee’s work
performance, including competency, habits, abilities, attitudes, and any other
pertinent characteristic, to allow for an effective evaluation of a new
employee.
2. Length of probation
a) Each new employee…shall be required to complete satisfactorily a sixmonth probationary period… .
b) The probationary period may be extended by the Department Head, with
approval of the Executive Director, for up to six additional months if it is
felt to be justified and that it could allow the employee to develop the ability
to perform the duties of the position satisfactorily… .
3. Termination while on probation
At any time during the probationary period, an employee may be terminated
without cause by the Department Head, with approval of the Executive
Director
(Compl. Ex. C. 8.) On or about August 7, 2012, this probationary period expired for Mr. O’Rourke.
Id. ¶ 22.) The Personnel Manual later describes the protocol for discharging a non-probationary
employee or Department Head, stating:
4. Discharge
a) The Executive Director with the Department Head may discharge an employee
for unsatisfactory job performance, violation of Council’s rules and regulations, or
for any situation or instance of such seriousness that discharge is warranted.
b) The Executive Director, with an Executive Committee member, may discharge a
Department Head for unsatisfactory job performance, violation of Council’s rules
and regulations, or for any situation or instance of such seriousness that discharge is
warranted.
c) An employee shall be given written notice of the discharge signed by the
appropriate Department Head and Executive Director specifying:
 the date of discharge;
 the specific behavior and dates of the behavior, as appropriate;
 the right to appeal the discharge and the grievance procedures to follow for
an appeal.
d) A copy of the notice of discharge shall be placed in the employer’s personnel file.
(Id. Ex. C.28.)

3

During the summer of 2013, the Council’s Executive Committee met in private at several
points.2 (Id. ¶ 27.) On August 15, 2013, the Executive Council unanimously voted in favor of
discharging Plaintiff. (Id.) On August 19, 2013, Plaintiff was notified the Executive Council made
the decision to terminate him, and that his discharge was effective immediately. (Id. ¶ 33.) Plaintiff
did not receive any prior notification that he was to be dismissed; he was not invited to speak on his
own behalf prior to the dismissal. (Id. ¶ 35.)
Plaintiff then sent the Executive Committee a request seeking an opportunity to be heard
regarding his discharge. (Id. ¶ 36.) On August 28, 2013, the Chairman of the Executive committee
denied Plaintiff’s request for a hearing and instructed him to direct any future correspondence to the
Council’s attorneys. (Id. ¶ 37.) On September 5, 2013, Plaintiff met with a Council member and an
attorney for the Council and requested a hearing regarding his termination. (Id. ¶ 38.) These
individuals told Plaintiff, for the first time, that his dismissal was “not for cause,” and therefore that
the procedural protections set forth in the Personnel Manual governing the discharging of
Department Heads were “not applicable.” (Id.) On that same day, Plaintiff emailed the Council
member and the attorney for the Council with whom he had met, again requesting a hearing. (Id. ¶
39.) A few hours later, on September 5, 2013, Plaintiff was notified he could appear before the
Executive Committee that evening, although he was also informed that the Executive Committee
would not conduct an “executive session” for him. (Id. ¶ 40.) He therefore was only permitted to
appear before the Executive Committee in “open session” and under what he alleges to have been
“very restrictive conditions amounting to a gag order.” (Id.) Specifically, Plaintiff states he was
“prohibited from questioning or speaking about his dismissal, or the multiple violations of the
Council’s written policies, or the multiple violations of law surrounding his dismissal.” (Id.)

Plaintiff believes the “notion of dismissing [him] for cause was raised and discussed” during these meetings, though
Plaintiff does not state his factual basis for believing this. (Id. ¶ 40.)
2

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On September 9, 2013, Plaintiff received a letter from the Council’s attorney, stating that,
since he had been dismissed “not for cause,” “the procedure for discharging a Department Head
outlined in the amended Personnel Manual” was “inapplicable and is not available to” Plaintiff. (Id.
¶ 42.) On October 18, 2013, Plaintiff filed an Open Law Meeting complaint against the Council with
the Division of Open Government of the Office of the Attorney General (“AG”). (Id. ¶ 43.) The
AG conducted an investigation, and found that the Executive Committee of the Council violated
the Open Meeting Law in no fewer than six instances. (Id. ¶ 45.)
III.

STANDARD OF REVIEW

To survive a 12(b)(6) motion to dismiss, a complaint must allege facts that “raise a right to
relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus,
the factual allegations in the complaint must “nudge[] [the] claims across the line from conceivable
to plausible.” Id. at 570. A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference the defendant is liable for the misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Determining whether a complaint states a plausible
claim for relief” is a context-specific task, requiring “the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
Courts are not required to accept as true allegations in a complaint that are legal conclusions.
Id. at 678. However, “[w]hen there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679.
Therefore, in assessing a claim's plausibility, the court must construe the complaint in the plaintiff's
favor, accept all non-conclusory factual allegations as true, and draw any reasonable inferences in
favor of the plaintiff. See San Gerónimo Caribe Project, Inc. v. Acevedo-Vilá, 687 F.3d 465, 471 (1st
Cir. 2012).

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IV.

ANALYSIS

A. Procedural Due Process (Count I)
Plaintiff claims the Council deprived him of his constitutionally protected property interest in
continued public employment without due process, thereby violating 42 U.S.C. § 1983, when he was
allegedly terminated without notice and a chance to speak on his behalf. (Compl. ¶¶ 61-65.)
Defendant argues this claim must be dismissed because “Plaintiff was an at-will employee and his
employment agreement did not permit termination solely ‘for cause.’” (Dkt. No. 16, Mem. of Law in
Supp. of Def.’s Mot. to Dismiss (“Def. Mem.”) 2.) Given Plaintiff’s factual allegations, as well as
documents which may be properly considered at this stage, the court denies Defendant’s motion to
dismiss this claim.
“In order to establish a procedural due process claim under [42 U.S.C. § 1983], a plaintiff
must allege first that it has a property interest as defined by state law and, second, that the
defendants, acting under color of state law, deprived it of that property interest without
constitutionally adequate process.” Marrero-Gutierrez v. Molina, 491 F.3d 1, 8 (1st Cir. 2007)
(internal quotation marks and corresponding citation omitted). “The Due Process Clause of the
Fourteenth Amendment protects government employees who possess property interests in
continued public employment.” Maymi v. Puerto Rico Ports Auth., 515 F.3d 20, 29 (1st Cir. 2008)
(internal quotation marks and corresponding citation omitted).
(1) Constitutionally Protected Property Interest
“A public employee has a constitutionally protected interest in continued employment where
he has a reasonable expectation, arising out of state statute, rules or the contract, that he will
continue to be employed.” Perkins v. Board of Directors of School Administrative Dist., 686 F.2d
49, 51 (1st Cir. 1982). Therefore, one who can be discharged from their employment only for cause
has a constitutionally protected property interest, whereas one whose may be terminated without
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cause (one who is employed “at-will”) does not. Id. For this reason, here, the question of whether
Plaintiff’s interest in his job rises to the level of constitutionally protected “property” depends on
whether his employment relationship was such that he could only be terminated “for cause.” See id.
This is an issue of state law. Id.
“Massachusetts law assumes at-will employment, unless there exists, expressly or impliedly, a
contract governing the terms and conditions of employment.” Derrig v. Wal-Mart Stores, Inc., 942
F. Supp. 49, 54 (D. Mass. 1996). Thus, one does not have a constitutionally protected property
interest in their employment by default. See Santos v. City of Fall River, 942 F. Supp. 2d 178, 188
(D. Mass. 2013) (“An at-will employment contract, without more, does not create a reasonable
expectation of continued employment.”). By contrast, if one is employed through an employment
contract (implied or otherwise), cause is likely a prerequisite to termination. See id. at 188-189.
“It is well-settled in Massachusetts that the terms of a personnel manual may constitute an
implied employment contract, thus defeating the presumption that employment is at-will.” Ray v.
Ropes & Gray LLP, 961 F. Supp. 2d 344, 352 (D. Mass. 2013) (internal quotation marks omitted). In
order to determine whether a personnel manual effectively implies an employment contract, courts
in this district have applied a two-pronged approach. See Derrig, 942 F. Supp. at 55. Applying state
law, the court has explained that, in this context, “the central inquiries are: First, did the employee
believe that the employment manual[] he or she was given constituted the terms or conditions of
employment, equally binding on employee and employer[; and s]econd, was this belief reasonable
under the circumstances?” Id. The Massachusetts Supreme Judicial Court has also outlined several
additional factors to consider (none of which is dispositive), holding that “there is no implied
contract based on the terms of a personnel manual where: (1) the employer retained the right to
unilaterally modify terms; (2) the terms of the manual were not negotiated; (3) the manual stated that
it provided only guidance regarding the employer's policies; (4) no term of employment was
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specified in the manual; and (5) the employee did not sign the manual to manifest assent.” Day v.
Staples, Inc., 555 F.3d 42, 58-59 (1st Cir. 2009).
Here, a plausible inference can be made that a reasonable employee would have believed the
manual, entitled “Hampshire Council of Governments Personnel Policies and Procedures”
constituted a binding employment contract which permitted termination only for cause, following a
six-month probationary period. See generally Derrig, 942 F. Supp. at 55. In reaching this conclusion,
the court focuses on one line from the employment agreement and three separate provisions from
the employment manual. (Compl. Ex. A & Ex. C.)
To begin, when Plaintiff entered into a written employment agreement with Defendants, this
agreement provided that “[a]ll provisions of the . . . regulations and rules of the Council relating to
personnel policy . . . as they now exist or hereafter may be amended . . . shall apply to [Plaintiff].”
(Compl. Ex. A. 1.) With respect to the employment manual, itself, it broadly states at the outset that
it is a “covenant between the employer and employee.” (Compl. Ex. C. 2.) Moving into more
specifics from the employment manual, Chapter 2, Section D describes a “six-month probationary
period” for “each new employee.”3 (Compl. Ex. C. 8.) Within that section, in a subsection entitled
“Termination while on probation,” the manual states that, “[a]t any time during the probationary
period, an employee may be terminated without cause by the Department Head, with Approval of
the Executive Director.” (Id.) It is significant that this is the only explicit mention of an employee’s
being terminable “without cause” in the entire employment manual. A plausible inference can
therefore be made the manual’s reference to an employee’s terminability “without cause” during
only a specific period, in conjunction with the complete lack of specifying an “at-will” employment
relationship existed, would reasonably be interpreted as an employment contract. See generally

While this probationary period “may be extended by the Department head...for up to six additional months” (Compl.
Ex. C. 8.), there is no indication that this occurred here.
3

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Iannelle v. Fire Comm'r of Boston, 118 N.E.2d 757, 759 (Mass. 1954) (in some situations, omission
of contractual terms can aid in contractual interpretation).
Additionally, a section entitled “Discipline and Grievance” describes the circumstances
under which a Department Head can be discharged. (Compl. Ex. C. 28. ) Specifically, a Department
Head may be discharged for “unsatisfactory job performance, violation of Council’s rules and
regulations,” or for “any situation or instance of such seriousness that discharge is warranted.” (Id.)
The notion of permitting termination only in certain egregious circumstances is tantamount to
permission to terminate employees only with some level of cause, at least under the standards
applicable at this stage. See generally Ferry v. Rosewood Constr. Corp., 2008 WL 5216259, *6 (Mass.
Super. Ct. Nov. 5, 2008) (“personnel manuals, distributed by employers to employees can create a
binding commitment insofar as employees have a reasonable expectation that the employer will
adhere to the policies expressed therein.”).
For these reasons, the court draws two pertinent inferences: (1) this manual effectively
constituted an employment contract; (2) cause would have been required to discharge Plaintiff after
the completion of his probationary period. Therefore, since Plaintiff alleges he had been employed
for six month at the time of his discharge (thereby completing his probationary period), the court
finds he has plausibly alleged a constitutionally protected property interest in his continued state
employment.
Finding an employment contract existed, under the standards applicable at this stage, the
court moves to the second prong of the inquiry to determine whether a plausible inference can be
made that Plaintiff was deprived of constitutionally adequate process.
(2) Constitutionally Adequate Process
The Procedural Due Process violation “is not complete when the deprivation occurs; it is
not complete unless and until the State fails to provide due process.” Lowe v. Scott, 959 F.2d 323,

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340 (1st Cir. 1992) (quoting Zinermon v. Burch, 494 U.S. 113, 126 (1990)). “Therefore, to determine
whether a constitutional violation has occurred, it is necessary to ask what process the State
provided, and whether it was constitutionally adequate.” Id. “This inquiry would examine the
procedural safeguards built into the statutory or administrative procedure of effecting the
deprivation, and any remedies for erroneous deprivations provided by statute or tort law.” Id.
The Supreme Court has classified the requisite Procedural Due Process which must
accompany a deprivation of a constitutionally protected property interest as “a flexible concept that
varies with the particular situation.” Zinermon, 494 U.S. at 127. “The [Supreme] Court has not
forged a boilerplate standard for determining what process is due in all circumstances, but, instead,
has articulated three areas of particular importance: ‘First, the private interest that will be affected by
the official action; second, the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute procedural safeguards;
and finally, the Government's interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would entail.’” In re
Nineteen Appeals Arising out of San Juan Dupont Plaza Hotel Fire Litig., 982 F.2d 603, 611 (1st
Cir. 1992) (quoting Mathews v. Eldridge, 424 U.S. 319, 335(1976) (“Due process is malleable, calling
for such procedural protections as the particular situation demands.”).).
As a general rule, courts agree that an individual is typically entitled to “some kind of a
hearing before the State deprives a person of liberty or property.” Zinermon, 494 U.S. at 127; see,
e.g., Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 18 (1978) (hearing required before
cutting off utility service); Fuentes v. Shevin, 407 U.S. 67, 80-84 (1972) (hearing required before
issuance of writ allowing repossession of property); Goldberg v. Kelly, 397 U.S. 254, 264 (1970)
(hearing required before termination of welfare benefits). Accordingly, courts “review cases
involving adversarial hearings to determine whether, under the specific facts and circumstances of a
10

given situation, the affected individual has had a fundamentally fair chance to present his or her side
of the story.” In re Nineteen Appeals Arising out of San Juan Dupont Plaza Hotel Fire Litig., 982
F.2d at 611. Therefore, in this context, “the Constitution 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), prior to being “deprived of any significant property interest.” Garcia-Gonzalez v. PuigMorales, 761 F.3d 81, 88 (1st Cir. 2014) (internal quotation marks omitted).
Based on the allegations set forth in the complaint, a plausible inference can be made that
Plaintiff was not afforded constitutionally adequate process when he was discharged. Plaintiff alleges
that a series of “executive sessions” occurred, at which the notion of terminating him was discussed.
(Compl. ¶¶ 27-28.) He states that he was not (1) provided with any notice of these executive
sessions, and therefore (2) was denied the opportunity to be present during the portions of the
executive sessions that concerned him personally. (Compl. ¶¶ 30, 35.) From these allegations, it
follows that he was denied any opportunity to “speak on his own behalf” or participate in any pretermination proceeding. (Compl. ¶¶ 31, 35.) See In re Nineteen Appeals Arising out of San Juan
Dupont Plaza Hotel Fire Litig., 982 F.2d at 611. While, following his termination, Plaintiff was
“permitted to appear before the Executive Committee in open session,” he was “prohibited from
questioning or speaking about his dismissal” at this purported post-termination hearing. (Id. ¶ 40.)
As a result, the court agrees with Plaintiff, at this stage and under the applicable standards, that the
appearance “could not be considered a ‘hearing’” pursuant to the requirements of the Procedural
Due Process Clause. (Id.) See Zinermon v. Burch, 494 U.S. 113, 127 (1990).
For these reasons, the court denies Defendants’ motion to dismiss Plaintiff’s claim that his
Constitutional Procedural Due Process rights were violated.
B. Conspiracy to Violate Plaintiff’s Due Process rights (Count IV)

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In order to make out an actionable conspiracy under 42 U.S.C. § 1985, a plaintiff must
demonstrate both that there was a conspiratorial agreement, and that there was actual abridgement
of a federally-secured right. Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir. 2001). Defendant’s
argument that Plaintiff’s “Conspiracy to Violate Due Process Rights” count should be dismissed is
solely premised upon his assertion that Plaintiff’s claim for a violation of his Procedural Due Process
rights should be dismissed. (Def. Mem. 6-8.) As discussed above, the court finds a plausible
inference can be made that Defendant’s Procedural Due Process rights were violated. (See Compl.
¶¶ 29-32, 35.) For this reason, the court denies Defendant’s motion to dismiss this claim.
C. Breach of Contract (Count II)
In his Complaint, Plaintiff alleges he had an employment contract with Defendant and it was
breached.4 (Compl. ¶¶ 66-70.) Defendant moves to dismiss this claim, arguing that Plaintiff did not
have an employment contract, and (by implication) that if Plaintiff did have an employment
contract, it was not breached. (Def. Mem. 8-9.) For the following reasons, the court denies
Defendants’ motion to dismiss this claim.
To establish a prima facie case of breach of contract, a plaintiff must show 1) there is a
contract, 2) he performed his duties under the contract, 3) the defendant breached the contract, and
4) the plaintiff suffered damages as a result of the defendant’s breach. Porcaro v. Chen, 2005 WL
3729056 *1 (Mass. Super. Ct. Dec. 29, 2005); see Michelson v. Digital Fin. Servs., 167 F.3d 715, 720
(1st Cir. Mass. 1999). If an employee reasonably believes an employer intended to offer him or her
employment terminable only for cause, pursuant to terms stated in a manual or employment

In his memorandum opposing Defendants’ motion to dismiss, Plaintiff argues that he has a cause of action predicated
upon a theory of common-law breach of contract as well as, additionally or alternatively, a cause of action predicated
upon a theory of a breach of the implied covenant of good faith and fair dealing. (See Pl. Opp’n 12-13.) At no point in
Plaintiff’s Complaint does he mention the implied covenant of good faith and fair dealing. For that reason, the court is
unable to consider this additional claim at this point. See Diaz-Rivera v. Rivera-Rodriguez, 377 F.3d 119, 123 (1st Cir.
2004) (“At a bare minimum, even in this age of notice pleading, a defendant must be afforded both adequate notice of
any claims asserted against him and a meaningful opportunity to mount a defense.”).
4

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agreement, then the employee’s continuing to work following receipt of that agreement or manual,
pursuant to the conditions outlined in that manual, constitutes an acceptance of an offer of a
unilateral contract. See O'Brien v. New England Tel. & Tel. Co., 664 N.E.2d 843, 848 (Mass. 1996).
When provisions of an employment manual effectively or impliedly form an employment
contract, “[t]he employees may have a reasonable expectancy that management will adhere to a
manual's provisions.” Ferguson v. Host Int'l, 53 Mass. App. Ct. 96, 102 (Mass. App. Ct. 2001)
(quoting O’Brien 664 N.E.2d at 848). Under these circumstances, “an affected employee’s reliance
on the [employment] manual would be reasonable, and [an aggrieved employee] is entitled to
whatever rights that the manual set forth.” Ferguson, 53 Mass. App. Ct. at 102 (quoting O'Brien,
664 N.E.2d at 848). Accordingly, the Massachusetts Appeals Court reversed the trial court’s
summary judgment on the defendant-employer’s behalf in Ferguson v. Host Int'l where the
defendant-employer did not abide by the pecuniary provisions in the employment manual when he
discharged the plaintiff-employee. See 53 Mass. App. Ct. at 102.
As discussed above, the court finds a plausible inference can be made that Plaintiff and
Defendants entered into an (implied) employment contract. Further, similar to the situation in
Ferguson, the court finds a plausible inference can be made that Plaintiff accepted an offer of a
unilateral contract, and that he reasonably could have relied upon the pertinent provisions of the
employment manual/agreement. See id. It follows that Plaintiff was entitled to, inter alia, the rights
set forth in the subsection laying out the manner in which Defendant could discharge a department
head. See O'Brien, 664 N.E.2d at 849; Ferguson, 53 Mass. App. Ct. at 102. Therefore, if Defendant
discharged Plaintiff for a reason other than those outlined as potential grounds for discharge in this
section of the employment manual, Defendant may have breached this employment contract.
As discussed in the facts section, the employment manual outlines several potential reasons for
which Defendants may have discharged Plaintiff, following the completion of his probationary
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period. The court finds Plaintiff sufficiently alleges Defendant discharged him for a reason other
than those permissible reasons outlined in this (implied) contract, and that Plaintiff suffered
damages as a result. Therefore, for the purposes of the motion to dismiss and operating under the
premise that Plaintiff was effectively employed pursuant to an (implied) employment contract which
required at least some sort of “cause” as a prerequisite to termination, the court finds Plaintiff has
sufficiently put forth a colorable breach of contract claim. Defendant’s motion to dismiss this claim
is denied.
D. Open Meeting Law (Count III)
Plaintiff also brings a claim for violation of the Massachusetts Open Meeting Law. See MASS.
GEN. LAWS ch. 30A § 21(a)(1); Ghiglione v. School Committee of Southbridge, 378 N.E.2d 984, 987
(Mass. 1978) (“The open meeting law is designed to eliminate much of the secrecy surrounding the
deliberations and decisions on which public policy is based.”). Both Defendant and Plaintiff agree
the Attorney General has already investigated and come to a conclusion regarding whether
Defendant violated the Open Meeting Law in this case. (Def. Mem. 9-10; Pl. Opp’n 13) See MASS.
GEN. LAWs ch. 30A § 23(f). In Plaintiff’s opposition memorandum, however, he seems to indicate
that the determination by the Attorney General should serve only to bolster his argument that his
Procedural Due Process rights were violated, as opposed to serving as an independent claim upon
which he believes relief should be granted in the instant case. (Pl. Opp’n 13.)
Even if Plaintiff has not abandoned his Open Meeting Law claim, however, it is nevertheless
subject to dismissal “because the [Open Meeting Law] does not provide a private right of action to
an individual plaintiff.” Melville v. Town of Adams, 9 F. Supp. 3d 77, 98 (D. Mass. 2014)
(“Plaintiff's argument that the Office of the Attorney General was not diligent in reviewing her
complaint [does not] alter[] this conclusion.”); see MASS. GEN. LAWs ch. 30A § 23(f). Rather, the
law provides that “the attorney general or 3 or more registered voters may initiate a civil action to

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enforce the open meeting law.” Id. Therefore, since Plaintiff alone has filed this claim in the instant
action, he lacks standing to bring it. See Schultz v. Kelly, 188 F. Supp. 2d 38, 56 (D. Mass. 2002)
(“In the case at bar, there are only two Plaintiffs . . . As a result, Plaintiffs lack standing . . . .”). The
court therefore grants Defendant’s motion to dismiss this claim without prejudice.5
E. Prior Settlement Agreement
Defendants have submitted a copy of a “Release and Settlement Agreement” between Plaintiff
and Defendants, on December 23, 2013, along with their memorandum in support of their motion
to dismiss. (Deft. Mem. & Deft. Mem. Ex. A.) Defendants argue that, since “Plaintiff seeks to relitigate the issues surrounding his termination from employment with the Council and wages and
benefits due,” his claims in this case are barred. (Deft. Mem. 10.) In his opposition memorandum,
Plaintiff contends the settlement agreement solely pertains to an alleged violation of the Wage Act
pursuant to MASS. GEN. LAWS ch. 149 § 148. (Pl. Opp’n 14.) Independent of its factual accuracy, the
court is unable to accept Defendants’ premise at this stage, and therefore finds their argument
unavailing.
“In ruling on a motion to dismiss, a court must accept as true all the factual allegations in the
complaint and construe all reasonable inferences in favor of the plaintiffs.” Alternative Energy, Inc.
v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001). “Ordinarily, a court may not
consider any documents that are outside of the complaint, or not expressly incorporated therein,
unless the motion is converted into one for summary judgment.” Alternative Energy, Inc., 267 F.3d
at 33. There is, however, a narrow exception “for documents the authenticity of which are not
disputed by the parties; for official public records; for documents central to plaintiffs' claim; or for
documents sufficiently referred to in the complaint.” Watterson v. Page, 987 F.2d 1, 3 (1st Cir.

Since the court has dismissed Plaintiff’s Open Meeting Law Claim on this ground, the court need not reach
Defendant’s argument that it should be dismissed pursuant to the doctrine of res judicata. (Deft. Mem. 9-10.)
5

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1993). In these situations, “[w]hen the complaint relies upon a document, whose authenticity is not
challenged, such a document ‘merges into the pleadings’ and the court may properly consider it
under a Rule 12(b)(6) motion to dismiss.” Alternative Energy, Inc., 267 F.3d at 33. “When a written
instrument contradicts allegations in the complaint to which it is attached, the exhibit trumps the
allegations.” Yacubian v. United States, 750 F.3d 100, 108 (1st Cir. 2014). Further, although “there is
no requirement that the pleader attach a copy of the writing on which his action or defense is
based[,] . . . when plaintiff fails to introduce a pertinent document as part of his pleading, defendant
may introduce the exhibit as part of his motion attacking the pleading.” Fudge v. Penthouse
International, Ltd., 840 F.2d 1012, 1015 (1st Cir. 1988).
Accordingly, in Diva's Inc. v. City of Bangor, the First Circuit found that the District Court
properly considered a settlement agreement, finding the “Appellants’ claim that the Appellees
breached the settlement agreement is dependent on the scope of the settlement agreement.” 411
F.3d 30, 38 (1st Cir. 2005). Similarly, in Alternative Energy, Inc., the First Circuit found that the
District Court appropriately considered the settlement agreement when the complaint referred to it
“or its terms numerous times.” 267 F.3d at 34.
Here, however, unlike the aforementioned cases, Plaintiff’s allegations do not depend upon
the settlement agreement, nor does Plaintiff reference it or its terms in the Complaint. Further, even
if the court were able to properly consider the settlement agreement in ascertaining whether Plaintiff
can bring this claim at this stage, the settlement agreement, itself, does not specify the specific claims
by Plaintiff against Defendants that were settled under the agreement.6 To the extent that
Defendants assert the settlement agreement covered claims now brought by Plaintiff in the instant
case, Plaintiff disputes this assertion. Therefore, this issue constitutes a factual dispute, and
The document asserted to be the agreement references a “Stipulation of Dismissal With Prejudice and Without Costs,
attached hereto as Exhibit A.” (Deft. Mem. Ex. A. 2.) However, neither party has attached the aforementioned
document referred to by the Settlement Agreement as “Exhibit A.” (Id.)
6

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Defendant’s disputed factual assertions will not be considered at this stage. See National Ass'n of
Government Employees v. Mulligan, 854 F.Supp.2d 126, 131 (D. Mass. 2012); Weiss v. Steve's
Creative Stereo & Security Systems, Inc., 2007 WL 2781887, at *2-3 (Mass. App. Ct. September 21,
2007).
For these reasons, the court finds Defendants’ argument that Plaintiff’s claims should be
barred due to their attached settlement agreement unavailing, at least at this time.

V.

CONCLUSION

For the reasons set forth above, the court DENIES Defendants’ motion to dismiss with
respect to Plaintiff’s 42 U.S.C. § 1983 claim (Count I), Plaintiff’s Conspiracy to Violate 42 U.S.C.
U.S.C. § 1983 (Count IV), and Plaintiff’s breach of contract claim (Count II). Assuming Plaintiff has
not conceded his Open Meeting Law claim (Count III), the court ALLOWS Defendant’s motion to
dismiss this claim without prejudice.
It is So Ordered.
_/s/ Mark G. Mastroianni________
MARK G. MASTROIANNI
United States District Judge

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