Mancini v. City of Providence et al

Filing 14

CERTIFICATION ORDER. So Ordered by Judge William E. Smith on 9/26/13. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
CITY OF PROVIDENCE, by and through )
its Treasurer, James J. Lombardi, )
III; and HUGH CLEMENTS, JR.,
)
)
Defendants.
)
___________________________________)
MARK MANCINI,

C.A. No. 13-92 S

CERTIFICATION ORDER
WILLIAM E. SMITH, United States District Judge.
In accordance with Rule 6 of the Rhode Island Supreme Court
Rules of Appellate Procedure, the following question is hereby
certified 1 to the Rhode Island Supreme Court:
Does Section 28-5-7(6) of the Rhode
Employment Practices Act, R.I. Gen. Laws
seq. (“FEPA”), provide for the individual
an employee of a defendant employer and,
what circumstances?

Island Fair
§ 28-5-1 et
liability of
if so, under

In addition to the question articulated above, this Court
“would welcome the advice of the Rhode Island Supreme Court on
any other relevant aspect of Rhode Island law which it believes
1

Though neither party requested that this question be
certified to the Rhode Island Supreme Court, this Court may
properly certify a question to the state’s highest court on its
own motion under the circumstances presented in this case.
Hundley v. Marsh (In re Hundley), 603 F.3d 95, 98 (1st Cir.
2010).

would aid in the proper resolution of this issue.”

Am. States

Ins. Co. v. LaFlam, 672 F.3d 38, 44 (1st Cir. 2012).
I.

Background 2
The

question

certified

has

been

considered

by

several

judges of this Court and the Rhode Island Superior Court for
decades.

It is now raised in a Motion to Dismiss Plaintiff’s

Complaint

in

the

present

action.

Plaintiff

Mark

Mancini,

a

Sergeant of the Providence Police Department (the “PPD”), has
filed an eleven-count Complaint (ECF No. 1), which includes ten
counts against Defendant City of Providence (the “City”), his
employer, and one count against Defendant Hugh Clements, Jr.,
Chief

of

Police

for

the

PPD.

Plaintiff’s

claims

involve employment and disability discrimination.

generally

At issue here

is Plaintiff’s employment discrimination claim under the Rhode
Island Fair Employment Practices Act, R.I. Gen. Laws § 28-5-1 et
seq (“FEPA”), against Clements, in his individual capacity, for
the

alleged

failure

to

promote

Plaintiff

from

the

sergeant to the rank of lieutenant within the PPD.
¶¶

119-20.)

Specifically,

Plaintiff

alleges

rank

of

(See Compl.

that

Clements

violated Plaintiff’s rights under R.I. Gen. Laws § 28-5-7(6)

2

Rule 6(b) of the Rhode Island Supreme Court Rules of
Appellate Procedure requires that the certifying court “set
forth (1) the questions of law to be answered; and (2) a
statement of all facts relevant to the questions certified and
showing fully the nature of the controversy in which the
questions arose.”
2

because

Clements

aided,

abetted,

incited,

compelled,

and/or

coerced the City to engage in an unlawful employment practice
through his involvement in the promotion process.
According

to

the

Complaint,

Plaintiff

(Id.)

injured

his

right

knee while chasing a suspect in the line of duty on November 15,
2010.

(Id. ¶ 15.)

As a result of Plaintiff’s injured right

knee, he was placed on “injured on duty” status, and was out of
work until May 2011. (Id. ¶ 19.)

When he returned to work,

Plaintiff was placed on “light duty” status.

(Id. ¶ 22.)

In or

about August 2011, the PPD terminated his light duty status, and
by

September

2,

2011,

employer,

Plaintiff

with

City.

the

as

filed
(Id.

a

result

for

¶¶

of

a

accidental

23-24.)

directive

from

disability

Plaintiff’s

his

benefits

accidental

disability pension was ultimately denied, and the City refused
to allow him to return to work on “light duty” status.
29.)

Plaintiff

alleges

that

his

physical

(Id. ¶

impairment

substantially limited one or more of his life’s major activities
including, but not limited to, working.
On

May

3,

2012,

Plaintiff

was

(Id. ¶ 31.)
notified

that

a

written

examination (the “Exam”) for promoting police officers from the
rank of sergeant to the rank of lieutenant was scheduled to be
administered

to

all

eligible

sergeants.

(Id.

¶

35.)

The

criteria for selecting a lieutenant would be based on a 100point overall score whereby each candidate is awarded points as
3

follows:

(1) 0-85 points for his or her score on a 100-question

written examination; (2) 0-5 points for his or her level of
education; (3) 0-5 points for his or her level of seniority; and
(4) 0-5 points for his or her service.

(Id. ¶ 37.)

The service

component pertains to the candidate’s overall performance as a
police officer.

(Id.

¶ 41.)

The Chief of Police considers

letters of commendation, memoranda of merit received and other
factors

to

Service

points

discretion.
overall

determine
are

candidate’s

awarded

(Id. ¶ 42.)

scores

lieutenant.

a

were

to

at

service

the

points.

Police

(Id.)

Chief’s

sole

The candidates with the five highest
receive

a

promotion

from

sergeant

to

(Id. ¶ 45.)

On June 16, 2012, Plaintiff completed the Exam and received
an overall score of 88.2:
examination;
seniority;

(2)
and

5
(4)

points
0

(1) 78.2 points for the written
for

points

education;
for

(3)

service.

5

points

(Id.

¶

for
50.)

Plaintiff’s 88.2 overall score ranked him seventh of the sixteen
sergeants who took the Exam; therefore, he did not receive a
promotion to lieutenant.

(Id. ¶ 51.)

scored an 89.2 on the Exam.
It

is

the

Police

The fifth ranked sergeant

(Id. ¶ 61.)

Chief’s

decision

to

award

Plaintiff

0

service points that is the basis for Plaintiff’s claim against
Clements.

Of the sixteen sergeants who completed this Exam,

nine officers received a rating of 5, two officers received a
4

rating of 4.5, two officers received a rating of 4, two officers
received a rating of 3.5, and one officer, Plaintiff, received a
rating of 0.

(Id. ¶ 64.)

Plaintiff has previously completed

five promotional exams, in which he was awarded a 5 for service
points in each examination.
has

received

letters

throughout his career.

of

(Id. ¶ 60.)

commendation

(Id. ¶ 57.)

Furthermore, Plaintiff
and

memoranda

of

merit

Had Plaintiff received even

one service point, he would have tied with the fifth highest
test taker and been eligible for a promotion.
II.

(Id. ¶ 63.)

Reasons for Certification
The

dispute

in

this

case

permits individual liability.

revolves

around

whether

FEPA

Specifically at issue here is

R.I. Gen. Laws § 28-5-7(6), which makes it unlawful
[f]or any person, whether or not an employer,
employment agency, labor organization, or employee, to
aid, abet, incite, compel, or coerce the doing of any
act declared by this section to be an unlawful
employment practice, or to obstruct or prevent any
person from complying with the provisions of this
chapter or any order issued pursuant to this chapter,
or to attempt directly or indirectly to commit any act
declared by this section to be an unlawful employment
practice.
R.I. Gen. Laws § 28-5-7(6).
Title VII, the federal Civil Rights Act, does not provide
for individual liability.

See Fantini v. Salem State Coll., 557

F.3d 22, 28-30 (1st Cir. 2009).

5

Defendants rely on this fact,

and decisional authority from other courts, to argue that, like
Title VII, FEPA does not provide for individual liability.
Trial

court

judges

who

have

considered

the

issue

of

individual liability under FEPA have disagreed on the answer.
On one end of the spectrum at least two judges have rejected the
notion that individual liability exists under the statute.

See

Bringhurst v. Cardi’s Dep’t Store, Inc., No. KC-2010-1025, 2011
WL

9379273

(R.I.

Super.

Dec.

30,

2011)

(Judge

K.

Rodgers)

(holding that FEPA, like Title VII, does not permit individual
liability); Fabrizio v. City of Providence, C.A. No. 04-3025
(R.I. Super. Oct. 19, 2010) (Judge Stern) (dismissing employment
discrimination

action

explanation).

Judge Rogers based her ruling on the continued

practice

of

Rhode

interpretation
[FEPA].”

of

against

individual

Island

courts

Title

VII

turning

for

defendants

“to

guidance

federal
in

without

courts’

interpreting

Bringhurst, 2011 WL 9379273 (citations omitted).

The midpoint in this spectrum is represented by Johnston v.
Urban League of R.I., Inc., No. C.A. 09-167 S, 2009 WL 3834129
(D.R.I. Nov. 13, 2009), which unsurprisingly is cited by both
parties for conflicting propositions.

Defendant correctly notes

that in Johnston, this Court initially dismissed an individual
claim of liability under FEPA.
out,

however,

that

Id. at *3.

dismissal

provided

As Plaintiff points
leave

to

amend

the

complaint to re-plead in accordance with R.I. Gen. Laws § 28-56

7(6), reasoning that this provision itself provides a basis for
finding

individual

liability.

Id.

Plaintiff

notes

that

ultimately the plaintiff in Johnston won a jury verdict on the
issue of individual liability after successfully amending his
complaint.

(See Ex. B Pl. Opp’n. to Def.’s Mot. to Dismiss, ECF

No. 11.)
Plaintiff relies on two decisions at the other end of the
spectrum. These rulings came to the conclusion that FEPA does
permit

individual

liability,

relying

in

part

on

language

contained within FEPA that is not contained in Title VII.

In

Wyss v. Gen. Dynamics Corp., Judge Lagueux, of this Court, held
that

FEPA

“is

broader

than

Title

VII.

.

.

.

[because

i]t

explicitly reaches ‘any person, whether or not an employer.’”
24 F. Supp. 2d 202, 210 (D.R.I. 1998) (quoting R.I. Gen. Laws §
28-5-7(6)).
independent

Thus,

he

ground[]

reasoned

for

this

individual

language

“provides

liability.”

Id.

an
This

position reaffirmed Judge Lagueux’s earlier ruling that “FEPA
reaches

past

employers

individual employees.”

to

forbid

discriminatory

acts

by

Iacampo v. Hasbro, Inc., 929 F. Supp.

562, 573 (D.R.I. 1996).
Because

the

proper

scope

and

meaning

of

R.I.

Gen.

Laws

§ 28-5-7(6) with respect to individual liability is not clear,
this Court believes that an answer to the question certified
above would greatly assist it in resolving the matter currently
7

pending before it, and would assist this and other courts in
rendering decisions related to FEPA in the future.
IT IS SO ORDERED.

William E. Smith
William E. Smith
United States District Judge
Date: September 26, 2013

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