Turley v. Zivkovich

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

)

TIMOTHY TURLEY )

)

Plaintiff, )

)

v. ) Civil Action No. 14-14755-LTS

)

)

CURTIS MCKENZIE, et al., )

)

Defendants. )

)

ORDER ONDEFENDANTS’

MOTIONS FOR SUMMARY JUDGMENT

January5, 2018

SOROKIN, J.

On December 31, 2014, plaintiff Timothy Turley filed a complaint in this Court against

the Municipal Police Training Commission (“the Commission”), the Western Massachusetts

Regional Police Academy (“the Academy”), Curtis McKenzie, Robert Powers, and Delilah Yee

(collectively, “the Commonwealth defendants”), and Sean Shattuck. The complaint alleged,

among other claims, sexual harassment, gender discrimination,age discrimination, breach of

contract, and retaliation, all arising from Turley’s tenure at and dismissal from the Academy.

After the Court’s ruling onthe Commonwealth defendants’ motion to dismiss and

defendant Shattuck’s motion for partial judgment on the pleadings,six claims remain before this

Court.Doc. No.29.Count I asserts a First Amendment retaliation claim under 42U.S.C. §1983

against McKenzie, Powers, Shattuck, and Yeein their individual capacities.1 Doc. No.1.Count

II asserts aclaim for non-monetary2 relief under 20 U.S.C. § 1681 (“Title IX”)against the

Academy and the Commission. Id.Count III asserts a claim for equitable relief under Mass. Gen.

Laws chapter 214, § 1C (“Chapter 214sexual harassment”)against the Academy. Count IV

asserts a claim for equitable relief under Mass. Gen. Laws chapter 151B(“Chapter 151B”)

against the Commission, andagainst McKenziein his official capacity,as well as a claim for

monetary damages against,McKenzie, Powers,and Yeein their individual capacities. Id.Count

VI asserts a claim for specific performance for breach of contract against the Commission. Id.

Finally,Count VII asserts a claim for tortious interference with contract, for monetary damages,

against McKenzie, Powers, Shattuck,and Yeein their individual capacities. Id.

Before the Court are the defendants’ motions for summary judgment.The

Commonwealth defendants move for summary judgment on all claims pending against them.

Doc. No.118. Separately,Shattuckmoves for summary judgment on all claims pending against

him.Doc. No.120.Turleyfiled a combined omnibus opposition to the defendants’ motions in

which he addressed onlythe First Amendment claim (Count I), the Title IX claim (Count II), and

the Chapter 214 sexual harassment claim (Count III).3 Doc. Nos.129; 134. Accordingly, the

Court ALLOWS the defendants’ motions for summaryjudgment as to Counts IV, VI,and VII (a)

1 Originally, Plaintiff also asserted claims against Daniel Zivkovich, however, Plaintiff

voluntarily dismissed these claims conceding that he had no reasonable likelihood of ever

obtaining admissible evidence to support claims against Zivkovich. Doc. No. 54.

2 All claims for monetary damages against the Academy and the Commission were dismissed.

Doc. No. 29at 2.

3 Turley does assert, in two conclusory sentences that all his other state law claims survive

defendants’ motions. Doc. No. 129 at 25-26. This cursory argument is insufficient to prevent a

waiver. See, e.g.,United States v. Encarnacion-Ruiz, 787 F.3d 581, 586 (1st Cir. 2015) (“We

have repeatedly stated that wedeem waived claims not made or claims adverted to in

acursoryfashion, unaccompanied by developed argument.” (citations omitted)); United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“It is not enough merely to mention a

possibleargument in the most skeletal way, leaving the court to do counsel's work.”).

as unopposed and (b) due toTurley’s failure to prosecute these claims at this stage of the

litigation. That leaves for resolution the motions for summary judgment on the First Amendment

retaliation claim against, in their individual capacities,McKenzie, Powers, Shattuck, and Yee

(Count I),the Title IX claim for non-monetaryreliefagainst the Academy and the Commission

(Count II), and theChapter 214 sexual harassment claim against the Academy (Count III).4

I. BACKGROUND

The facts, based upon the undisputed facts before the Court, Plaintiffs’ factual submissions

even where disputed and those facts established by drawing all reasonable inferences in Turley’s

favor, are set forth below.5

Turley worked for twenty years at the Suffolk County Sheriff’s Department. Doc.No.

136 at ¶2. He retired from the Sheriff’s Department in 2010 at the age of forty-three. Id.at ¶3.

In 2013, Turley decided to advance his career by training as a certified police officer. Doc. No. 1

at ¶12.To further this goal, Turley enrolled in a 20-week police officer training course at the

Academy, which began in August of 2013.6 Doc.No.136 at ¶198.

A. Alleged Hazing at the Academy

Turley avers that on his first day at the Academy he was forced “to place socks on [the]

bare feet [of another cadet] in front of the entire [class].” Doc. No. 136 at ¶ 148.Hewas later

required to write the Academy’s use of force model on the board “every day during his lunch

break.” Id.at ¶151.Turley was teased by staff instructors Powers and Yee who often made jokes

4 The Plaintiff’s post-hearing motion to supplement the record (Doc. No. 142) is DENIED. The

parties had a full and fair opportunity to submit their evidence. To allow the motion would

further delay this matter as it would require permitting the defendants to respond. Moreover, the

facts are not material to the Court’s disposition of the pending motions.

5 Defendants dispute manyof the facts described in the text.

6 In Massachusetts, a person who wishes to become a police officer must first complete a course

of study at a police academy. Mass. Gen. Laws ch. 41, § 96B. The Massachusetts police

academies, including the Academy, are overseen by the Commission. Doc. No. 136 at ¶2.

suggesting that Turley suffered from “erectile dysfunction” and “needed Viagra.” Id.at ¶¶157,

162-63.

Turley was not the only cadet who was the object of the staffs’ ridicule and jokes. Doc.

No.1 at ¶22.Cadets at the Academy are hazed to “toughen them up,” Id. at ¶22, but much of

the hazing is “racist, sexist, and homophobic.” Doc. 136 at ¶146. For instance, one cadet was

called “a walking heart attack” and “fucking retarded,” he was instructed to stop “sticking [his]

ass out” because he was “not at [his] boyfriend’s house,” and was “ordered . . . to exchange

shoelaces with a female cadet whose laces were pink.” Id.at ¶¶78, 80, 84-85.Acadet was asked

“Does your wife read the news paper [sic] while you fuck her?” Id. at ¶100.Another cadet was

instructed to bring Vaseline to class. Id.at ¶107. One teacherinstructed the class to stop

“ethnically altered vehicles.” Id.at 124.

The hazing escalated during the cadets’firearms training. Shattuck, one of thefirearms

instructors, routinely “scream[ed] and [swore] at [student officers] in order to teach them to use

their weapons while also feeling stress.” Doc. 138 at ¶8. “Throughout the firearms course,

Shattuck would refer to the cadets as ‘ladies,’ ‘bitches,’ ‘faggots,’ ‘fags,’ and ‘retards’”Doc. 138

at ¶141.On one occasion, Shattuck handcuffed a cadet (not Turley), while Shattuck “took his

fingers and placed them under [the cadet’s] nose, asking [the cadet] if they [Shattuck’s fingers]

smelled like the cadet’s wife.” Doc. 136 at ¶99. The hazing“culminated” when “Shattuck

grabbed [a cadet’s (but not Turley’s)] buttocks behind the genitals at the anus, forced his finger

into the victim’s anus . . . and proceeded to rub his genital against the victim, simulating sexual

intercourse.”Doc. 1 at 30; Doc. No. 136 at ¶ 110. After these incidents, Shattuck told the cadets

“what happens on the range, stays on the range” and “you guys can all . . . bitch and moan about

how we have talked to you and treated you, but we already have our badges.” Doc. 136 at ¶115.

B. Turley’s Objections and Shattuck’s “threat”

Turley did not formally report the instructors’ conduct duringhis tenure at the Academy.

Doc. No. 136 at ¶36.Turley says, as a general matter, that he objected to Shattuck’s behavior on

thefiringrange by making facial expressions and through his body language.Doc. No. 138 at ¶

217.Except as described later in this paragraph he does not give further details about when he

made these expressions, who was present when he made these expressions, or the particular

context in which he made them. Turley describes two specific instances by which he says he

voiced his objections. First,when Shattuck asked a cadet if “his fingers smelled like [the

cadet’s] wife,” Turley made an upset face. Id.at ¶ 219. Shattuck noticed Turley’s displeasure and

asked Turley “What’s your fucking problem?” Id. Second, when Shattuck grabbeda cadet and

“simulated intercourse,” Turley approached to stop Shattuck. Id. at ¶¶220-22. Shattuck released

the cadet and asked Turley, “Don’t you have a sense of humor?” Id.at ¶223. Turley responded

“That’s not funny.” Id. Theseincidents happenedinShattuck’s classroom, and on the firing

range, respectively. Id.at ¶¶38, 45, 47-52.Turleydoes not identify the other staff, if any, present

during either incident.

In addition to these instances, Turley says he also “admonished other cadets for nervously

laughing at Shattuck’s inappropriate behavior.” Id.at ¶227. A cadet told him “to keep it down

because the staff was listening.” Id.at ¶227.Turley does not describe where this occurred, or

which instructors, if any, were listening. Id.at ¶227.

Shattuck later told Turley that if Turley ever graduated, then Turley could “tell [Shattuck]

to go fuck himself.” Id. at ¶223. Turley understood Shattuck’s statement as a threat. Doc. No.

136 at ¶181.

C. Shattuck’s Alleged Retaliation

On the final day of weapons training at the firing range, cadets take a firearms

qualification test,during whichthey fire their weapons at paper targets.Doc. No. 138 at ¶58.

Instructors then score the cadets’ tests by reviewing the cadets’ targets. Id. at ¶60. A cadet is

allowed three attempts to pass. Id.at ¶64.

Turley received a failing score on each of his three attempts to qualify on thefirearms

test. Doc No. 138 at ¶199. Turley saw Shattuck score his targets.7 Doc. No. 138 at ¶244. He did

not see any other instructors look at his target but admits that another instructor may have also

looked at his targets. Doc. Nos. 138 at ¶82; 122, Attachment A at 53.

Turley, who has twenty years’ experience qualifying on firearms tests, believes that he

shot well enough to pass. Doc. No. 134 at 9; Doc. No. 136 at ¶205. Doc. No. 138 at ¶199. He

contends that he actually did pass but that Shattuck “maliciously fail[ed] him.” Doc. No. 138 at ¶

250.

Turley subsequently passed aremedial firearms test, and thenpassedthesame test again

after he was separated from the Academy. Doc. No. 138 at ¶253-54.

D. McKenzie’s Knowledge

McKenzie, the director of the Academy, was frequently on the firing range during the

hazing. Doc. 136 at ¶¶ 35, 192.

7 Shattuck disputes that he was the “primary scorer” of Turley’s target. Doc. No. 138 at ¶¶58-97.

He says that another instructor, Gaynor, was the “primary scorer” and that Shattuck only

reviewed Turley’s targets to confirm that Turley had failed. Id. at ¶82-87. Gaynor does not recall

scoring Turley’s target or if she even “ever had Mr. Turley’s target in [her] hands”but

acknowledges that she, Shattuck, and another instructor, Cady, scored targets that day. Doc. Nos.

138 at ¶82; Doc. No. 122, Attachment Q at 6-9.

On one occasion, during a firearms training session, an instructor, Cady, told Shattuck

that he “would ejaculate in [Shattuck’s] mouth.” Id.at ¶38. The instructors were standing near a

live microphone, so the comment was broadcast throughout the firing range. Id.

McKenzie was apprised of the incident (“the hot microphone incident”) in November of

2013,and initiated an investigationat the end of that month. Id.at ¶¶39-40. As part of the

investigation, McKenzie addressed the cadets, explained that he was investigating, and asked if

“they had any questions.” Id.at ¶¶40-41. “[N]one responded.” Id. at ¶41. McKenzie then

interviewed the instructors and spoke with Cady about the incident. Id. at ¶¶42-47. Over the

course of the interviews, one instructor told McKenzie that he had heard Shattuck make sexually

aggressive comments to a cadet. Id. at ¶45.

McKenzie says that, on December 2, 2013, he and Powers arranged a meeting with

Shattuck and Cady to discuss thehot microphone incident and theallegations of sexually

aggressive comments. Id. at ¶¶48.The meeting was held onDecember 17, 2013,which

McKenzieasserts was the earliest date at which the parties were available to meet. Id. at ¶49.

December 17, 2013 is also the day that McKenzie received a post-dismissal complaint letter

from Turley. Id. at ¶¶48-49. Turley argues that the meeting was not pre-arranged but was instead

heldto “manage the crisis created” by his letter. Id.at ¶49.He offers no evidence supporting this

argument.

E. Turley’s Dismissal

McKenzie dismissed Turley from the Academy on December 10of 2013, citing

Municipal Police Training Committee regulation 550 CMR 3.09(4) as the reason for the

dismissal. Doc. No. 136 at ¶17.The Municipal Police Training Committee regulations govern

police training programs in Massachusetts, including cadet dismissal. Doc. Nos. 136 at ¶¶5, 23.

Regulation 550 CMR 3.09(4) (“the three strikes rule”),requires that a cadet be dismissed if he

fails “any three tests.”Doc. No. 136 at ¶6.When a cadet fails a test, the cadet receives an

“action notice.” Doc. 136 at ¶215.Per the three strikes rule, a cadet will be dismissed from the

Academyupon his third action notice.

Turley received failing scores on three examinations during his tenure at the Academy:

the firearms test, supra5-6,a comprehensive exam, and the Standardized Field Sobriety Test,

(“SFST”), Doc. Nos. 138 at ¶104; 136 at ¶¶18-19, 226-31.

F. McKenzie’s Alleged Retaliation

Although the three strikes rule requires that “any student officer who fails . . . any three

tests .. . be dismissed for non-disciplinary reasons,” Police Training Regulations, 550 CMR

3.09(4) (emphasis added), McKenzie instructed the cadets that only comprehensive exams would

count towards the “three strike rule.” Doc. No. 136 at ¶219. Hedescribed the comprehensive

exams as four tests “which the students would be given advance notice and ample time to

prepare for.” Id.at ¶¶216-17.After the first comprehensive exam, McKenzie told the class that

it “would be impossible to fail out of the academy foracademic reasons if they passed a second

comprehensive exam on their first attempt.” Id.at ¶222.

The SFSTis not a comprehensive exam. Id.at ¶217-220. The test covers only one

subject and the material is taught over the course of only three days. Id.at ¶265. Turley failed

the SFST. Id. 231. McKenzie treated Turley’s failure of the SFST as his third and final failure

under the three strikes rule. Id.at 232.Turley argues that this treatmentwas “retaliatory.” Id.at

¶196.

G. Turley’s Post-Dismissal Letter

After his dismissal, Turley submitted a letter allegingthat he experiencedinappropriate

hazingat the Academyand that his dismissal was retaliatory. Doc.No.136 at ¶26-28.

The same day that McKenzie received Turley’s letter, he met with Shattuck, Cady, and

Powers purportedly to discuss his investigation of the hot microphone incident and the

allegations that arose during the subsequent investigation.8 Id. at ¶¶48-49. Followingthe

meeting, McKenzie collected reports from thirteen cadets and ultimately fired Shattuck and

Cady. Id. at ¶¶55-56. McKenzie then referred Shattuck’s behavior to the District Attorney for

potential criminal charges. Id. at ¶58.

II. THE LEGAL STANDARD

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 genuine dispute “is one on which the evidence would enable a reasonable

jury to find the fact in favor of either party.” Perez v. Lorraine Enters., Inc., 769 F.3d 23, 29 (1st

Cir. 2014). “A ‘material’ fact is one that is relevant in the sense that it has the capacity to change

the outcome of the jury’s determination.” Id.(citation omitted).

Once a party “has properly supported its motion for summary judgment, the burden

shifts to the non-moving party, who ‘may not rest on mere allegations or denials of his pleading,

but must set forth specific facts showing there is a genuine issue for trial.’” Barbour v.

Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir. 1995) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 256 (1986)). The Court is “obliged to view the record in the light most

favorable to the nonmoving party, and to draw all reasonable inferences in the nonmoving

8 Turley contends that the meeting was actually set-up in response to his letter. Doc.No.136 at ¶

49.

party’s favor.” LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). Even so, the

Court is to ignore “conclusory allegations, improbable inferences, and unsupported speculation.”

Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir. 2008) (quoting Medina–Muñoz v. R.J. Reynolds

Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)). A court may enter summary judgment “against a

party who fails to make a showing sufficient to establish the existence of an element essential to

that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986).

III. FIRST AMENDMENT RETALIATION CLAIM

“[T]he First Amendment prohibits government officials from subjecting an individual to

retaliatory actions . . . for speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006).“To

prevail on aretaliation claim under§ 1983 a plaintiff must show: (1) that his conduct was

constitutionally protected, and (2) that this conduct was a substantial factor or a motivating factor

forthe defendant's retaliatory decision.”Rosaura Bldg. Corp. v. Municipality of Mayaguez, 778

F.3d 55, 66 (1st Cir. 2015).

Turley argues, without opposition for purposes of summary judgment,that he engaged in

protectedactivity when he spoke out against the hazing culture at the Academy.Doc. Nos.1 at 1;

134at 5.He further argues that he was retaliated against because of his First Amendment activity

when he was: (1) given failing scores onthree consecutivefirearms tests, (2) given an “action

notice”for failing the Standard Field Sobriety Test (“SFST”), and(3)dismissed from the

Academyfor violating the three strikes rule.9 Doc. Nos.1at ¶¶43-50; 134at 8; 129at 8.

9 Turley alleges that during his tenure at the Academy he voiced his dissatisfaction with the

hazing culture verbally and through facial expressions. Doc. Nos. 1 at 1, ¶ 68; 129 at 5-6. He

further alleges that Shattuck and other instructors made comments to him that could be

characterized as harassment. He does not argue that this alleged conduct was itself retaliation.

Doc.Nos.1 at ¶¶66-70; 129 at 8. SeeWelch v. Ciampa, 542 F.3d 927, 937 (1st Cir. 2008)

a. Yee and Powers

Powers was a staff instructor,and Yee was a physical training instructor at the Academy

during Turley’s tenure there.Doc. No.136 at ¶¶11, 13.Turley concedes that Powers and Yee

were “not involved in scoring. . . the firearms exam.”Doc. No.136 at ¶61.He also concedes

that neither Powers nor Yee were aware of Turley’s complaints that the exam was scored

incorrectly until after Turley’s separation. Doc. No.136 at ¶35. He concedes that Powers and

Yee “werenot involved in scoring. . .the SFST exam.” Id. Finally, Turley concedes that

Powers and Yee“were not consulted about [Turley’s] dismissal and did not know that the

plaintiff would be dismissed until after his separation.” Doc. No.136at ¶25.As a result of these

concessions, there is no evidence that Powers or Yee committed or participateddirectly in any of

the three alleged retaliatory acts.

Nonetheless, Turley does not concede that summary judgment is warranted. Heargues

that Yee and Powers are liablefor First Amendment retaliationbecause they acted in concert

with the other defendants toretaliate against Turley. Turley’s conspiracy argument fails because

Turley failed (1)toplead a conspiracy action; and (2)to submit sufficient facts to support an

inference that the defendants acted in concert.

Turley’s complaint omits any allegations of joint action, concerted action, conspiracy or a

claim under section 1985(3). Seedoc. No. 1at ¶¶ 66-70 (listing allegations pertinent to Count I);

see generallyDoc. No. 1. Nor has Turley amended his complaint or sought leave to do so.

More than two years after filing the initial complaint, and well after the November 1,

2015 deadline for amending the pleadings without good cause, Doc. No. 31 at 1, Turley filed a

(stating “[a]ctions of informal harassment, as opposed to formal employment actions ... can be

the basis for first amendment claims,” when “the motive [of the retaliatory harassment] was

political discrimination.”)

document entitled “Notice of Alternate Theories of Pleading” (“Notice”) in which the plaintiff

first mentioned his intent to pursue conspiracy liability with respect to his § 1983 claim. Doc.

No. 107 at 1. The notice is neither an amended complaint nor a motion to amend. It neither

alleges any facts nor advances any basis for amending the complaint. Id.Now, in the opposition

to the defendants’ motions for Summary Judgment, plaintiff advances such a conspiracy theory

of liability. Doc. No. 129 at 17-19. This he cannot do. Rule 8 exists to “give defendant[s] fair

notice of what the plaintiff’s claim is and the grounds upon which it rests.” Soni v. Boston Med.

Ctr. Corp., 683 F. Supp. 2d 74, 91 (D. Mass. 2009) (quoting Swierkiewicz v. Sorema N.A., 534

U.S. 506, 512 (2002)). Plaintiff failed to give defendants “fair notice” of his conspiracy claim,

and the Court will not reopen discovery at this late date. See Vineberg v. Bissonnette, 548 F.3d

50, 55 (1st Cir. 2008)(affirming district court's denial of request to reopen discoveryfiled five

weeks after opponent's motion for summary judgment).

Turley’s conspiracy theory also fails for another independent reason: he has put forth

insufficient facts to support an inference of conspiracy. Tosucceed on a claim for conspiracy

under Section 1983, a plaintiff must prove (1) a conspiratorial agreement and (2)an abridgment

of afederally secured right. Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir. 2001). A

conspiratorial agreement consists of “an agreement between two or more state actors.” Williams

v. City of Boston, 771 F. Supp. 2d 190, 204 (D. Mass. 2011).While it is “not necessary to show

an express agreement to prove a conspiracy,” Earle v. Benoit, 850 F.2d 836, 845 (1st Cir. 1988),

“allegations of a conspiracy under Section 1983 must . . .be supported by material facts, not

merely conclusory statements.” Id.(quotingSlotnick v. Garfinkle,632 F.2d 163, 165 (1st

Cir.1980)).To survive summary judgment, the plaintiff must present “evidence, either direct or

circumstantial, of an agreement among defendants . . . to inflict harm upon the plaintiffs.”Estate

of Bennett v. Wainwright, 548 F.3d 155, 178 (1st Cir. 2008).

Turley concedes that he has “no direct proof of an agreement”amongthe defendants to

retaliate against Turley. Doc. No.134 at 17. In support of his conspiracy claim, Turley advances

the following facts:

1. There was a “culture of hazing”at the Academy. Doc. No.136 at ¶69.

2. “McKenzie, Powers, Yee, and Shattuck contributed to the culture of hazing at various

levels.” Id.at ¶74.

3. Turley expressed his disapproval of the hazing. Id. 136 at ¶¶128, 175, 177, 179, 185-

86.

4. McKenzie issued Turley an action notice after his failure of the SFST exam and then

dismissed Turley from the Academy. Id.at ¶¶20, 22.

5. After his separation, Turley sent a letter to the Academy complainingofthe culture at

the Academy. Id.136 at ¶26.

6. Powers and McKenziearranged a meeting with Shattuck which took place theday

that they received Turley’s letter. Although they claimedthat the meetingwas already

scheduled, they met to manage the “crisis created by [Turley’s] allegations.” Id. at ¶

48.

7. McKenzie failed to produce an email that he sent to Powers. Id.at ¶238.

Turley has already conceded there is no direct evidence of agreement. He argues the

facts support the inference Powers and/or Yee joined a conspiratorial agreement to violate

Turley’s First Amendment rights, but he lacks the evidence to support drawing any such

inference. There is no evidencethat Powers or Yee: knew of or approved of any of the allegedly

retaliatory acts; engaged in any hazing of anature similar to the hazing Shattuck allegedly

committed; orknewof or responded in any way to Turley’s expressions of objection to the

hazing.Evenif McKenzie intentionally deleted theemail he sent to Powers to avoid production,

Powers was not “in on” McKenzie’s scheme; and the Commonwealth produced the received

version of McKenzie’s email to Powers. Doc. No. 135 at 6 n.5. After Turley’s separation from

the Academy, Powers, andMcKenzie [but not Yee] met with Shattuck and Cady to discuss the

hot microphone incident and subsequent investigation.Doc. No.136 at ¶48.Ameeting of

several instructors after the alleged retaliation transpired does not support an inference of

conspiratorial agreement, whether considered alone or in conjunction with the entire summary

judgment record. At this stage, Turley must go beyond “merely conclusory statements”. Earle,

850 F.2d at 845. For these reasons, Turleyhas failed to put forthsufficient facts for a reasonable

factfinder to infer the existence of a conspiracy.

Accordingly, the Court ALLOWS Yee and Powers’ motions for summary judgment as to

Count I.

b. McKenzie

McKenzie was the director of the Academy during Turley’s tenure there. Doc. No.136at

¶10.McKenzie gave Turley his separation notice following his failure of the SFST, citing the

“three strikes rule.” Doc. No.136at ¶¶22-23.Turley’s failure of the SFST was his third test

failure at the Academy. Id.at ¶23.

Turleyconcedes that he received a failing score on the SFST; but argues that the SFST

was not a “test” within the meaning of the “three strikes rule,” and that McKenzie changed the

Academy’s policy for the purpose of dismissing Turley from the Academy. Doc. No.129 at 13-

14.Turleycontends that McKenzie was awareof the hazing at the Academyandof Turley’s

expressed discontent.Doc. No.136at ¶¶35,190-92. His theoryis that McKenzie retaliated by

issuing the separation notice and dismissing Turley from the Academy. Doc. No.129 at 12-13.

He claims that McKenzie used Turley’s failure on the SFST as a pretext for the retaliatory

dismissal. Id.at 12-14. McKenzieresponds that Turley’s dismissal was not retaliatory,that the

dismissal was required by the three strikes rule, and that hewas unaware of Turley’s protected

speech. Doc. No.119 at 20.

Toprevail on his First Amendment claim against McKenzie, Turley must show that

McKenzie’s adverse actions against Turley were “causally related to [Turley’s] protected

conduct.” Abril-Rivera v. Johnson, 806 F.3d 599, 601 (1st Cir. 2015). This means showingthat

McKenzie was aware of Turley’s protected conduct,SeeClark Cty. Sch. Dist. v. Breeden, 532

U.S. 268, 273 (2001) (finding no causation where there was no indication that decisionmaker had

knowledge of alleged protected activity); Taylor v. Chao, 516 F.Supp.2d 128, 137 (D.D.C. 2007)

(“In order to show causation, a plaintiff must show that the official responsible for the alleged

retaliatory act had knowledge of the protected activity.”), and that Turley’s protected “conduct

was a substantial factor or a motivating factor”for McKenzie’s involvement in Turley’s

dismissal from the Academy,Rosaura Bldg. Corp., 778 F.3d at 66.

McKenzieclaims that he “could not have retaliated against the plaintiff when he

dismissed him because he was not aware”of Turley’s protected conduct, Doc. No. 119 at 19, but

Turley argues otherwise. Doc. No. 136 at ¶35.The evidence that Turley offers to show that

McKenzie was aware of Turley’s protected speech includes: (1)acadet’s testimonythat

McKenzie likely hadknowledge of what was transpiring at the academy because he oversaw

different portions of instruction,id.at ¶191; and(2)Shattuck’s testimonythat McKenzie was on

the range for the majority of the time that firearms instruction was taught.10 Id.at ¶192.

The facts that Turley has presented are not enough.The evidence might support an

inferencethat McKenzie had general knowledge of hazing—whichwas allegedly pervasive—but

the evidence is insufficient to support an inference that McKenzie had knowledge ofTurley’s

protected activities, which were mostly objections expressed quietly through facial expressions

and body language. Turleyhas offered no evidence as to when McKenzie was present on the

range; what, if any, protected conduct Turley engaged in while McKenzie was on the range; or

what McKenziespecifically saw or heard. McKenzie’s general presence at the Academy does

not support an inference that he was present when Turley made protected statements or that he

was cognizant that such statements had been made. Because Turley has failed to make a

sufficient showing that McKenzie was aware of Turley’s protected conduct, he cannot establish

that the protected conduct was a motivating factor in McKenzie’s decision to dismiss Turley

from the Academy. See Ambrose v. Township of Robinson, Pa.,303 F.3d 488, 493 (3d

Cir.2002) (“It is only intuitive that for protected conduct to be a substantial or motiving factor in

a decision, the decisionmakers must be aware of the protected conduct.”).11

Forthese reasons, the Court ALLOWS McKenzie’s motion for summary judgment as to

Count I.

10 Turley has also offered evidence that when he spoke out against hazing, another cadet told him

that the staff were “listening to every word he said,” Doc. 136 at ¶185.Turley’s restatement is

the only source of the cadet’s statement; thus,the cadet’s statement is hearsay and inadmissible

for the truth. E.g.,United States v. Benitez-Avila, 570 F.3d 364, 367 (1st Cir. 2009).

11Turley’s conspiracy argument as to McKenzie fails for the same reasons that it fails as to

Powers and Yee. Supra. 12-14.

c. Shattuck

As a firearms instructor, Shattuck employed what he deemed a “legitimate method” of

inducing stress in students “to teach them to handle weaponry effectively in traumatic

encounters.” Doc. No.138 at ¶8. His method was to “to scream and swear” at students during

weapon training. Id.Turley contends that Shattuck referred to students as “faggots, homos, and

queers” and instructed the class with “vulgar diatribes.” (e.g. “Stand like you’re getting fucked in

the ass, you should be used to it.”) Doc. No.1 at ¶¶28-29.

Turley contends that he voiced disapproval of Shattuck’s behavioronthe firing range on

three specific instances: when he gave Shattuck an upset look after Shattuck asked a cadet if

Shattuck’s fingers “smelled like [the cadet’s] wife”; when he approached Shattuck when

Shattuck “grabbed [a cadet] and simulated intercourse”; and when he told Shattuck “that’s not

funny.” Doc. No.138 at ¶¶ 219-227.Turley further contends that this behavior was protected

conduct and that Shattuck retaliated against him in violation of section1983 by maliciously

failing Turleyon his firearms test.Doc. No.138 at ¶¶237-51.

To prevail on a section1983 retaliation claim, a plaintiff must show that the defendant

took an adverse action against the plaintiff and that the plaintiff’s protected conduct was a

motivating factor for the defendant’s action. Rosaura Bldg. Corp., 778 F.3d at 66. Shattuck’s

theory is that Turley has failed on both counts. He denies taking anadverse action against

Turley. He claims that he was not the primary scorer of Turley’s test and that he only confirmed

another instructor’s judgment that Turley had failed. Doc. No. 138 at ¶¶ 87, 240. Heargues that,

in any event, the adverse action was not motivated by Turley’s protected conduct because Turley

in fact failedthe test. Id. at ¶240.

Turley has presented sufficient evidence to create a fact question as to whether Shattuck

was responsible forscoring Turley’s firearms test. Turley testified that he saw Shattuck score his

targets, although he conceded that he does not know if an additional instructor assistedShattuck.

Doc. No. 138 at ¶244. Shattuck claims that Turley’s concession establishes his story as

unrebutted. Doc. No. 137 at 10. However, even if Shattuck and another person jointly scored

Turley’s target, which Turley admits is possible, Turley’s testimony is sufficient to support an

inference that Shattuck did participatein scoring the test.Cf.Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 151 (2000) (finding company liable for intentional discrimination

whenbiased supervisorrecommended that plaintiff be fired even though formal decision maker

displayed no evidence of discriminatory bias); Staub v. Proctor Hosp., 562 U.S. 411, 420 (2011)

(requiring, for purposes of liability for employment discrimination, only that biased actor play a

causal role in adverse action); Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 148 (2d Cir. 2010)

(finding causal connection “sufficiently demonstrated” when unbiased agent decided to impose

adverse action “pursuant to encouragement” by biased actor).

Turley has likewisepresented sufficient evidence to support an inference that he in fact

passed the firearms test. Turley testified that he shot well enough to pass the test. Doc. 138 at ¶

246.Hewas in a position to know because, throughout his career at the Suffolk County

Sherriff’s office, he never failed a firearms qualification. Doc. 136 at ¶136. Additionally,the

weapon he used during his firearms test was the same weapon that he used to qualify while at the

Sheriff’s office. Doc. 138 at ¶65. During thefirearms test, he says he shot “consistent with every

other firearms test.” Doc. 134 at 10. Turley’s testimony creates a genuine issue of material fact

as to whether he passed the test. SeeCampbell v. Casey, 166 F. Supp. 3d 144, 150 (D. Mass.

2016)(finding a genuine fact issue where defendant contended that plaintiff crossed over traffic

line but plaintiff contended that he did no such thing).

Consequently, Shattuck’s motion for summary judgment is DENIED.

IV.THE TITLE IX CLAIM

a. Hostile environment

Title IXprovides in pertinent part: “No person ... shall, on the basis of sex, be excluded

from participation in,be denied the benefits of, or be subjected to discrimination under any

education program or activity receiving Federal financial assistance.” Gebser v. Lago Vista

Indep. Sch. Dist., 524 U.S. 274, 280 (1998)(quoting 20U.S.C. §1681(a)). “[S]exual harassment

can constitute sex discrimination.”Wills v. Brown Univ., 184 F.3d 20, 25 (1st Cir. 1999).One

type of sexual harassment that is cognizable under Title IX is a hostile environment. Seeid.

(“[T]he Supreme Court has endorsed two different . . . theories as to how such harassment can

constitute sex discrimination . . . the other theory [is] under the rubric “hostile environment.”).

An institution is liable under Title IXfor a hostile environment,when a victim is “subjected to

[sex-based] harassment severe enough to compromise the victim’s . . . educational

opportunities,” the institution “had actual knowledge of the harassment,” yet “exhibited

deliberate indifference to it.” Id. at 26.

For purposes of Title IX, an institution has actual knowledge if“an official who at a

minimum has authority to address the alleged discrimination and to institute corrective measures

on the recipient’s behalf has actual knowledge of the discrimination in the[institution]’s

programs.” Gebser, 524 U.S. 274 at 290. Deliberate indifference may be established if the

official, who has been shownto have actual knowledge of sex-basedharassment, “failed

adequately to respond.” SeeDoe v. Fournier, 851 F.Supp. 2d 207, 222 (D. Mass. 2012). “If the

institution takes timely and reasonable measures to end the harassment, it is not liable under Title

IX for prior harassment.” Wills, 184F.3dat 26.

b. The Academy and the Commission

To succeed on his Title IX hostile environment claim, Turleymust show that an official

who hadauthority to address the alleged discrimination had actual knowledge of the

discrimination and responded with “deliberate indifference to the discrimination.” Gebser, 524

U.S. at 290. McKenzie, as the Academy’s director, had authority to address the alleged

discrimination.Doc. No. 119 at 23. The Academy and the Commission’s theory is that

McKenzie had no knowledge of any sexual harassment until the plaintiff’s post-dismissal letter.

Doc. No.136at ¶ 35. They argue that once McKenziereceived the letter, hedidnot display

indifference but ratheractedto remedy the alleged discrimination by initiating an investigation

and ultimately firing Shattuck and another employee.Doc. No.136at ¶¶54-56.The plaintiff’s

theory is that, although Turley did not officiallyreport the harassment at the Academy until after

his dismissal, McKenzie was aware of the harassment well before he received Turley’s letter.

Doc. No.136 at ¶ 35.Turley supports his theory with (1) testimony that McKenzie was present

during some of the hazing and generallyoversaw much of what transpired at the Academy; and

(2) testimony from a cadet who attended the Academy’s program the year before Turley and

complained of hazingduring his [the cadet’s] tenure.Doc. No.136 at ¶¶87, 191-92.The parties’

dispute essentially turns onhow much McKenzie knew of the harassment andwhen.

Turley has presentedinsufficient facts to support an inference of deliberate indifference.

Deliberate indifference is a “stringent standard of fault.” Bd. Of the County Comm’rs v. Brown,

520 U.S.397, 410 (1997). In the educational setting, a school might be found deliberately

indifferent “where it had notice of the sexual harassment, and either did nothing or failed to take

additional reasonable measures after it learned that its initial remedies were ineffective.” Porto v.

Town of Tewksbury, 488 F.3d 67, 74 (1st Cir. 2007). It cannot be said that McKenzie “did

nothing” in response to allegations of misconduct at the Academy.Turley concedes that

McKenzie addressed cadets after the hot microphone incident,Doc. No.136 at ¶40-41,that

McKenzie interviewed cadets and met with the firearms instructors once he received Turley’s

post-dismissal letter,Doc. No.136 at ¶48,that McKenzie collected incident reports from

thirteen cadets, Doc. No. 136 at ¶55, and that McKenzie fired Shattuck and Cady. 136 at ¶ 56.

Even viewing the facts in the light most favorable to Turley, Turley has failed to set forth facts

supporting an inference of either notice or that McKenzie acted with deliberate indifference.

Yet, Turley still argues that McKenzie acted with deliberate indifference. Turley’s

argument is two-fold: (1) McKenzie’s investigation “was a sham” and (2) McKenzie had

previous knowledge of similar behavior directed at other cadets and displayed deliberate

indifference by not remedying the problem sooner.

The evidence Turley puts forth to show McKenzie’s investigation was a sham is slim: no

cadets were interviewed for over a month after the “hot microphone incident.” Doc. No. 134at

16-17. Although no cadets were interviewed for over amonth after the incident, several

instructors were interviewed within two weeks of the incident, Doc. No. 136 at ¶¶ 42-46. The

entire investigation was completed in less than two months. Id.at ¶¶ 40-65. A delay of weeks

between the initiation of the investigation and the interviewing of cadets with nothing more is

insufficient to support a reasonable inference that the investigation was a sham. Cf.Ahmed v.

Johnson, 752 F.3d 490, 497 (1st Cir. 2014)(explaining that, for purposes of summary judgment,

plaintiff must present “a convincing mosaicof . . . evidence that would allow a jury to infer

intentional discrimination.”) Turley’s assertion that it was a sham is “speculation,”unsupported

by the mosaic of facts, and is therefore not enough to survive summary judgment. Prescott, 538

F.3d at 39.

Turley’s argument that McKenzie displayed deliberate indifference because he did not

act sooner is also deficient.Turley has failed to present facts to support an inference that

McKenzie had prior notice of the kind of “severe” sexual harassment necessary to prevail on a

hostile environment claim.Doe v. D'Agostino,367 F.Supp.2d 157, 166 (D. Mass. 2005).

“A plaintiff may show that an institution had ‘actual notice’ by showing that the [sic] it

was aware of complaints by other students regarding” the same type of sexual harassment as that

complained of by the plaintiff.Bloomer v. Becker Coll., No. CIV.A. 09-11342-FDS, 2010 WL

3221969, at *5 (D. Mass. Aug. 13,2010); Gebser, 524 U.S. at 291.The prior complaints must

put the institution on notice that students are at risk of experiencing harassment based on sex, see

Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 66 (1st Cir. 2002) (“discrimination on the basis

of sex is the sine qua non of a Title IX sexual harassment case . . .”), and that the potential

harassment is “severe enough to compromise [their] educational opportunities” D’Agostino,367

F.Supp.2d at 166.Here, Turley has submitted only that “[a cadet from a prior class] complained

to McKenzie about being hazed” and “McKenzie was present during many of the instances of

[the cadet’s] hazing.” Doc. No. 136 at ¶¶ 86-87. He does not indicate which particular incidents

McKenzie observed or of what type of hazing the cadet complained. Id.This evidence is

insufficient to support an inference that McKenzie had “actual notice” that cadets were at risk of

sexual harassment “severe enough to compromise [their] educational opportunities.” Wills, 184

F.3d at 26. In D’Agostino, the court found that complaints by parents that their “child frequently

cried in class” and that their child’s teacher used “inappropriate incentives” wereinsufficient to

provide actual notice of the teacher’s “alleged propensity to sexually harass . . . students.”

D’Agostino, 367 F.Supp.2d at 166-67. Likewise, here, a previous cadet’s complaints of hazing

and McKenzie’s alleged presence during some incidents of hazing do not support a finding of

actual knowledge. Moreover, McKenzie’s general presence at the Academy is, without more,

also insufficient to support an inference of actual knowledge of severe sexual harassment.

Consequently,summary judgment as to Count II’s Title IX hostile environment claim is

ALLOWED.

c. Retaliation

The plaintiff’s second Title IX theory is that he was retaliated against for complaining of

sex discrimination. “[W]hen a funding recipient retaliates against a person because he complains

of sex discrimination, this constitutes intentional discrimination on the basis of sex, in violation

of Title IX.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 167 (2005).Aperson need not

be a direct victim of sex discrimination to prevail on a retaliation claim. Id. at 179. “Where the

retaliation occurs because the complainant speaks out about sex discrimination, the ‘on the basis

of sex’ requirement is satisfied.” Id.To prevail on a Title IX retaliation claim, a plaintiff must

allege “facts sufficient to show that she engaged in activity protected by Title IX, that the alleged

retaliator knew of the protected activity, that the alleged retaliator subsequently undertook some

action disadvantageous to the actor, and that a retaliatory motive played a substantial part in

prompting the adverse action.” Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 67 (1st Cir.

2002).

Turley acknowledges that he did not “formally report[] the misconduct” at the Academy

until after his dismissal. Doc. Nos.136 at ¶ 36; 129 at 24. Nevertheless, he claims that he

“engaged in protected conduct when he objected to Shattuck’s misconduct during the firearms

course” and that he was retaliated against when he was dismissed from the Academy. Doc. No.

129 at 24.

Turley alleges that he engaged in behavior protected under Title IX when:

1. He expressed his disapproval through facial expressions and Shattuck responded

asking “What’s your fucking problem?” Doc. No. 136 at ¶ 177.

2. He approached Shattuck to stop him when Shattuck grabbed another student and

simulated intercourse. Id. at ¶¶ 178-180.He then told Shattuck “That’s not funny.”

Id.136 at ¶ 181.

3. Turley “admonished other cadets for nervously laughing at Shattuck’s inappropriate

behavior.” Id.at ¶ 185.

Plaintiff’s retaliation theory is deficient. To prevail on aTitle IX retaliation claim, the

plaintiff must show that “he complained of sexual harassment, that [the Academy] knew [he] had

complained of such, and that it took adverse action because of [his] complaints.” Yan Yan v.

Penn State Univ., 529 F. App’x 167, 171 (3d Cir. 2013). Even assuming that Turley’s

expressions and statements were complaints of sex discrimination,12 Turley has alleged no facts

supporting an inference that the Academy or Commission knew that Turley had complained of

sex discrimination. See generallyDoc. Nos.1at ¶¶ 71-82; 136.Turley argues that McKenzie

knew about his allegedly protected conduct because McKenzie was frequentlyon the firing

12 WhenTurley was asked during his deposition “What did you intend to convey by [saying

‘that’s not funny’]?” Turley did not claim that his comment was meant as a complaint of sex

discrimination. Instead, he stated that his comment was meant to convey his “objection to

[Shattuck’s] felonious acts.” Doc. No. 136 at ¶ 183.Even if Turley specifically voiced

disapproval of sex harassment to Shattuck and other cadets, it is not clear that such disapproval

would constitute a complaint for the purposes of Title IX. In Jackson, the Supreme Court found a

cognizable claim of retaliation where the plaintiff repeatedly complained of the unequal

treatment of boys’ and girls’ basketball teams to his supervisors. 544 U.S. at 167. Here, Turley

acknowledges that he did not bring a complaint to his supervisors at any time during his tenure at

the Academy. Doc. No. 136 at ¶ 37.

range, but Turley has set forth nofacts establishingMcKenzie saw or took notice of Turley’s

alleged comments, which were largely in the form of facial expressions and body language. See

generallyDoc. No.136.13

Plaintiff complained of sexist comments in his dismissal letter.Doc. No.136 at ¶ 186.

His dismissal letter would therefore qualify as protected activity under Title IX.Jackson, 544

U.S. at 184.According to Turley’s own account, the letter was submitted afterhe was separated

from the Academy. Id.at ¶ 94.Adverse actions taken against Turley while he was at the

Academy cannot be becauseof the letter.Consequently, Turley is unableto show that the

alleged retaliatory actions were the result of his complaint of sex discrimination, and summary

judgment is ALLOWED as to Turley’s Title IX retaliation claim against the Academy and the

Commission.

V. CHAPTER 214SEXUAL HARASSMENT CLAIM

InCount III, Turley has alleged that he was subjected toa“hostile education

environment”in violation of Mass. Gen. Laws chapter 214 and 151C. Doc. No.1 at ¶¶83-86;

Doc. No.129at 24, 28.

At the hearing on the motion for summary judgement, the Court sua sponteinquired

whether the Eleventh Amendment barred Count III or any remaining count in the Complaint.

Though the Commonwealth initially said no, promptly post-hearing, the Commonwealth filed a

letter asserting that the Eleventh Amendment does apply, bars this Count, and may be invoked

even at this late stage of the lawsuit. Doc. No. 144. Subsequently, the Commonwealth filed a

13 Title IX prohibits sexual discrimination by recipients of federal funding—not sexual

discrimination generally. 20U.S.C. §1681(a). To establish Title IX liability, Turley must make a

showing that the Academy, through one of its officials with “authority to address the alleged

discrimination,”discriminated against Turley. Gebser, 524 U.S. 274 at 290.Turley does not

contend that Shattuck had such authority. SeeDoc. 128-29 (arguing only that Powers and

McKenzie had such authority).

supplemental memo addressing the Eleventh Amendment issues, Doc. No. 146, and Turley filed

an opposition, Doc. No. 147. The Court credits the candid and thoughtful opposition filed by

Turley, but nonetheless, concludes that the Eleventh Amendment requires the dismissal of Count

III for the reasons persuasively, thoroughly, and concisely stated by Judge Talwani in Bradley v.

Cruz,No. 1:13-CV-12927-IT, 2017 WL 3443212, at *1 (D. Mass. Aug. 10, 2017).14

The Court therefore ALLOWS the motion for summary judgment as to Turley’s Chapter

214 sexual harassment claim.

VI.CONCLUSION

For the foregoing reasons,the Commonwealth defendants’Motionfor Summary

Judgment (Doc. No.118) is ALLOWED as to Count I against Yee, Powers, and McKenzieAND

ALLOWED as to Count II against the Commission and the Academy; and ALLOWED as to

Count III against the Academyas this claim is barred in this Court by theEleventh Amendment.

Shattuck’s Motion for Summary Judgment (Doc. No. 120) is DENIED as to Count I.

Within seven days, the parties shall file a joint status report stating (1) the estimated

duration of trial; and (2) whether the parties would like to goto mediation before any trial.

SO ORDERED.

/s/ Leo T. Sorokin

Leo T. Sorokin

United States District Judge

14 One further point bears mention. At first blush the outcome appears manifestly unfair —

requiring Turleyat this latedate to refile in state court and resulting, possibly, in two trials.

However, the claim splitting implications are the same whether the Commonwealth invoked the

Amendment at the outset of the case or now. If the Commonwealth now asserted, in state court, a

statute of limitations defense which only became available as a result of the passage of time

before it invokedthe Amendment then an unfairness might arise. Turley’s counsel suggests that

no such concern is present due to the provisions of Mass.Gen. Laws chapter 260,§32.