The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
KEMAL BOZKURT, ) Civil Action No.
) 18-12622-FDS
Plaintiff, )
)
v. )
)
CITY OF LAWRENCE, )
)
Defendant. )
__________________________________________)
MEMORANDUM AND ORDER ON DEFENDANT’S
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
SAYLOR, J.
This case arises out of the termination of a library employee. Plaintiff Kemal Bozkurt
was employed at the Lawrence Public Library for 18 years, eventually rising to the position of
Assistant Director. In early 2017, he was issued warnings by his supervisor for insubordination
and abuse of authority. Later that year, he appeared before the library’s Board of Trustees for a
disciplinary hearing. He was then dismissed for deficient performance.
Bozkurt filed suit, asserting three claims that all allege, in substance, that defendant the
City of Lawrence violated Section 4 of the municipal administrative code by failing to make a
“reasonable effort” to correct his performance before dismissing him. Defendant has moved to
dismiss the complaint for failure to state a claim upon which relief can be granted. For the
following reasons, the motion will be granted.
I. Background
A. Factual Background
The facts are set forth as described in the complaint and attached exhibits.
Kemal Bozkurt began working for the Lawrence Public Library as an Assistant Librarian
on August 30, 1999. (Compl. ¶ 3). He was promoted to Assistant Director in January 2015 and
became Acting Director in September 2015. (Id.). Soon after, he returned to his position of
Assistant Director after a permanent Director, Jessica Valentin, was hired. (Id.).
On March 29, 2017, Bozkurt received a “warning letter” from Valentin. (Compl. Ex. A).
The letter stated that Bozkurt had received a “verbal warning for insubordination for failure to
acknowledge and/or meet [Valentin’s] request for meetings.” (Id.). It described the
“insubordination” as follows:
On two occasions, you were sent meeting requests via email to meet with your
supervisor and failed to comply. On the first occasion, you did not acknowledge
the meeting invitation but later cited that you were ‘working the second shift.’ On
the second occasion, today, you acknowledged the meeting request but once again
cited that you were ‘working the second shift’ and responded by saying we could
meet during the timeframe you proposed. Furthermore, your reason for not being
able to meet with me due to you scheduling yourself for later in the day is not
consistent with your text communication today stating that you were at an
appointment in Manchester and might be in a little late.
(Id.). Valentin further warned that Bozkurt, as Assistant Director, was expected to “make
[himself] available for regular meetings and special requested meetings.” (Id.). In addition, she
stated that “as a salaried employee, [Bozkurt was] expected to work outside of a regular hourly
schedule and make every attempt to meet requests made by [Valentin].” (Id.). The letter
concluded by indicating that Valentin “agreed to meet with [Bozkurt] on a bi-weekly basis to
provide feedback & guidance.” (Id.). On April 5, 2017, Bozkurt signed the letter
acknowledging that he had received the warning. (Id.) However, the complaint adds that
Bozkurt sent Valentin an email “reminding her that he was working second shift and she
agreed.” (Compl. ¶ 8).
Valentin sent Bozkurt a second “warning letter” on April 18, 2017. (Compl. Ex. B). The
letter stated that Bozkurt had committed an “abuse of power.” (Id.). Specifically, the letter
stated:
On Friday, April 7, you made me aware via email that you’d be using flextime on
Wednesday, April 12 morning and would be coming in at 1:00 p.m. You
mentioned that Elvin Fabian [a subordinate employee] had cancelled an
appointment and would be available to cover you. On Tuesday, April 11 . . .
I . . . asked for a confirmation that you’d be in at 1:00 p.m. the following day.
You hesitated and said that you’d try to be here at that time. On Wednesday,
April 12 morning, you texted me to inform me that your uncle had passed away
and that you wouldn’t be coming in at all. [Later], I called the front desk to
inform the staff that I was on my way and to get a heads up if anyone called out
sick for coverage purposes. [Fabian] informed me that he noticed you were out
and then made the following connection: [h]e said that you called him on his day
off on Friday, April 7 and asked him to change his medical appointment because
he was ‘really needed at work on Wednesday.’ He did not know the reason but
complied with your request. On Wednesday, he understood that you had him
change[] his approved time off to accommodate your schedule which as an
administrator, is an abuse of power.
(Id.). Moreover, the letter stated that while Bozkurt had been approved to take time off on April
13 and 14, 2017, he had failed to ensure that someone would cover his payroll duties for those
days. (Id.). In response, Bozkurt stated that the library had historically been “flexible” in
changing schedules and that he directed Fabian to work on April 12 to ensure that there was
coverage in the morning that day. (Compl. ¶ 14). A notation on the letter states that Bozkurt
refused to sign the acknowledgement section. (Compl. Ex. B).
Bozkurt was suspended, with pay, from his position on August 21, 2017, pending further
review by the Library’s Board of Trustees. (Compl. Ex. C). He received notice on August 28,
2017, that there would be a disciplinary hearing. That hearing took place on November 9, 2017.1
(Compl. ¶ 18). The complaint alleges that until the hearing, Bozkurt “did not receive a reason in
writing for such extreme disciplinary measures.” (Id.).
Five days after the hearing, on November 14, 2017, Bozkurt was terminated from his
1 The hearing had been continued to that date at Bozkurt's request. (Compl. Ex. D).
position as Assistant Director. (Compl. Ex. D). The letter of dismissal stated that he was being
terminated for “poor performance and failure to work well with others.” (Id.). In addition, the
letter noted that Bozkurt had been “provided [at the disciplinary hearing] with an opportunity to
respond to the reasons provided for taking disciplinary action against [him].” (Id.).
B. Procedural Background
The complaint was originally filed in Essex County Superior Court on November 13,
2018. It asserts three claims. Count One asserts a claim for breach of the implied covenant of
good faith and fair dealing. (Compl. ¶¶ 26-30). Count Two asserts a claim for violation of the
Massachusetts Civil Rights Act (“MCRA”), Mass. Gen. Laws ch. 12, §§ 11H & 11I. (Id. ¶¶ 31-
34). Count Three appears to assert a Fourteenth Amendment due-process claim under 42 U.S.C.
§ 1983. (Id. ¶¶ 35-38).2 The City timely removed the action to this court on December 21, 2018.
(ECF No. 1). It has now moved to dismiss the complaint for failure to state a claim.
II. Legal Standard
On a motion to dismiss, the court “must assume the truth of all well-plead[ed] facts and
give . . . plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness
Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.
1999)). To survive a motion to dismiss, the complaint must state a claim that is plausible on its
face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In other words, the “[f]actual
allegations must be enough to raise a right to relief above the speculative level, . . . on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555
(citations omitted). “The plausibility standard is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal,
2 The complaint mistakenly labels this claim "Count II."
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if the
complaint fails to set forth “factual allegations, either direct or inferential, respecting each
material element necessary to sustain recovery under some actionable legal theory.” Gagliardi v.
Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting Centro Medico del Turabo, Inc. v. Feliciano
de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)).
III. Analysis
A. Count One—Breach of the Implied Warranty
Count One alleges a claim for breach of the implied covenant of good faith and fair
dealing. Under Massachusetts law, a covenant of good faith and fair dealing is implied in every
contract. See UNO Rest., Inc. v. Bos. Kenmore Realty Corp., 441 Mass. 376, 385 (2004)
(citation omitted). The covenant provides that “neither party shall do anything that will have the
effect of destroying or injuring the rights of the other party to receive the fruits of the contract.”
Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471 (1991) (internal quotation marks,
alteration, and citation omitted).
The complaint does not allege the existence of any employment agreement or other
contract between the parties. Instead, the only possible “contract” referred to in the complaint is
Section 4 of the city’s administrative code. That section, titled “Establishment of a personnel
department,” states as follows:
1.1 Purpose. It is the purpose of this section to establish a system of personnel
administration, for the city of Lawrence, that is consistent with the following
merit principles:
. . .
4. Retention of employees on the basis of their performance. A reasonable
effort shall be made to assist employees in correcting inadequate performance;
and if following such effort inadequate performance cannot be corrected,
separation shall occur.
(Compl. Ex. E (emphasis added)). Bozkurt argues that the city’s decision to terminate his
employment violated procedural protections provided by Section 4 to which he was entitled.
Bozkurt provides no authority, and this Court is unaware of any, for the proposition that a
municipal administrative code can constitute a contract between parties, or that a claim for
breach of the implied covenant can be premised on such a code. The only case he does cite,
Ferguson v. Host Int’l, Inc., 53 Mass. App. Ct. 96, 101-02 (2001), stands for the more limited
and unremarkable proposition that an employee handbook can be considered part of an
employment contract between an employee and employer.
Moreover, even assuming that Section 4 was part of an employment contract and the
complaint alleged a breach of that contract, the claim would still likely fail. Courts are required
to interpret contracts according to their plain language. See A.L. Prime Energy Consultant, Inc.
v. Mass. Bay Transp. Auth., 479 Mass. 419, 428 (2018). Here, Section 4 states only that the city
is obligated to make a “reasonable effort” to help employees correct deficient performance.
(Compl. Ex. E). The complaint does not allege that Bozkurt’s performance was in fact
satisfactory. Indeed, Bozkurt does not seem to dispute that his performance was deficient—in
particular, that he failed to respond to his superior’s request for meetings, abused his authority,
and did not complete his payroll duties in a timely fashion. Nor does he dispute that Valentin
had offered to meet with him biweekly to “provide feedback & guidance” (Compl. Ex. A); that
he was warned not to interfere with subordinates’ approved time off (Compl. Ex. B); and that he
was provided an opportunity to defend himself at a disciplinary hearing (Compl. Ex. D). The
complaint itself, and its exhibits, thus appear to show that the City made a reasonable effort to
assist him on correcting his inadequate performance before terminating his employment.
In any event, in the absence of a contract, there can be no claim for breach of the implied
covenant of good faith and fair dealing. Accordingly, Count One will be dismissed for failure to
state a claim.
B. Count Two—Violation of the Massachusetts Civil Rights Act
Count Two alleges a violation of the MCRA, which provides a right of action of action to
any person whose exercise or enjoyment of rights secured by the federal or state constitution or
laws has been interfered with by “threats, intimidation or coercion.” Mass. Gen. Laws ch. 12, §§
11H & 11I. A “threat” means “the intentional exertion of pressure to make another fearful or
apprehensive of injury or harm”; “intimidation” means “putting in fear for the purposes of
compelling or deterring conduct”; and “coercion” means “the application to another of such
force, either physical or moral, as to constrain him to do against his will something he would not
otherwise have done.” Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, 474
(1994). To survive a motion to dismiss, the complaint must allege that a defendant threatened,
intimidated, or coerced the plaintiff into “giv[ing] up something that [he had] the constitutional
right to do.” Pimentel v. City of Methuen, 323 F. Supp. 3d 255, 272 (D. Mass. 2018) (quoting
Goddard v. Kelley, 629 F. Supp. 2d 115, 128 (D. Mass. 2009)) (internal quotation marks
omitted).
There are at least two basic problems with the MCRA claim, either of which is fatal.
First, even assuming that Section 4 was violated, Bozkurt was not threatened, intimidated, or
coerced into giving up some other right—for example, his right to freedom of speech. Rather,
the termination itself was the alleged wrongdoing.3 The SJC has held that “[a] direct violation of
a person’s rights does not by itself involve threats, intimidation, or coercion and thus does not
3 In his opposition brief, Bozkurt contends that Exhibit C, the letter dated August 21, 2017, which
suspended him with pay, constituted coercion because it "require[ed] him to leave the workplace immediately and
amongst other things stay away from City property." (Mem. in Opp. at 4). However, that argument does not save
the MCRA claim, as the letter was part of the alleged underlying direct violation—that is, his termination.
implicate the [MCRA].” Longval v. Comm’r of Corr., 404 Mass. 325, 333 (1989). Second, the
Massachusetts Appeals Court has held that “a municipality is not a ‘person’ covered by the
[MCRA].” Howcroft v. City of Peabody, 51 Mass. App. Ct. 573, 591-92 (2001). That holding
has been followed by the First Circuit and this district. See Kelley v. LaForce, 288 F.3d 1, 11 n.9
(1st Cir. 2002); Dyer v. City of Bos., 2018 WL 1513568, at *7 (D. Mass. Mar. 27, 2018);
Meagher v. Andover Sch. Comm., 94 F.Supp.3d 21, 45 (D. Mass. 2015). Therefore, Bozkurt
cannot assert a MCRA claim against the City, regardless of what transpired. For those reasons,
Count Two will likewise be dismissed.
C. Count Three—Section 1983 Claim
Finally, Count Three purports to allege a Section 1983 claim against the City for
“deprivation of rights, privileges, and or immunities secured by the Constitution and laws.”
(Compl. ¶ 36). “Section 1983 creates a private right of action for redressing abridgements or
deprivations of federal constitutional rights.” McIntosh v. Antonino, 71 F.3d 29, 33 (1st Cir.
1995). “A claim under § 1983 has two ‘essential elements’: the defendant must have acted
under color of state law, and his or her conduct must have deprived the plaintiff of rights secured
by the Constitution or by federal law.” Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir. 2008).
The second element requires the plaintiff to show that defendant caused the alleged deprivation.
Id. Here, the City does not dispute that its actions were under “color of state law.”
However, the complaint fails to identify any federal constitutional or statutory provision
that was violated. It simply claims that “the City terminated Bozkurt’s employment . . . in clear
violation of [Section] 4 [of the municipal administrative code].” (Compl. ¶ 37). Because
“[m]ere violations of state [and local] law do not . . . create constitutional claims,” Vargas-
Badillo v. Diaz-Torres, 114 F.3d 3, 6 (1st Cir. 1997), on that basis alone this claim must be
dismissed.
In his opposition brief, Bozkurt raises two arguments. First, he asserts that his continued
employment was a protected “property right, recognized under the [Fourteenth] Amendment.”
(Mem. in Opp. at 3).4 The Court will assume that Bozkurt intends to assert a claim that his
dismissal was without procedural due process in violation of his Fourteenth Amendment rights.
But “[i]n order to mount a successful due process claim stemming from the loss of public
employment, an employee must [first] demonstrate that he has a cognizable property interest in
his continued employment.” Kando v. R.I. State Bd. of Elections, 880 F.3d 53, 58 (1st Cir.
2018). “In Massachusetts, employment is presumed to be at-will unless there exists an express
or implied contract governing its terms and conditions.” Day v. Staples, Inc., 555 F.3d 42, 58
(1st Cir. 2009) (citation omitted). Because the complaint failed to plead the existence of an
employment contract, the Court must presume that Bozkurt was an at-will employee with “no
reasonable expectation of continued public employment.” Kando, 880 F.3d at 61. Without a
protected property interest, the Section 1983 claim must fail.
Even assuming that Section 4 of the administrative code did vest a property right, this
claim would still fail. After determining the existence of a vested property interest, the inquiry
turns to “whether the procedures followed by the State were constitutionally sufficient.”
Swarthout v. Cooke, 562 U.S. 216, 219 (2011). Here, the exhibits to the complaint itself clearly
show that Bozkurt was given two warnings and permitted to defend himself at a disciplinary
hearing before the city terminated his employment. That satisfies the “essential requirements of
due process: notice and an opportunity to respond.” O’Neill v. Baker, 210 F.3d 41, 48 (1st Cir.
2000) (affirming dismissal of tenured state employee’s due-process claim where she was given
4 This argument, which constitutes only two sentences, is so thinly briefed and argued that there is a strong
case for waiver. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
warnings that her performance was defective and had opportunity to speak in her own defense in
disciplinary hearings) (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985))
(internal quotation marks and alterations omitted).
Second, Bozkurt suggests that he has a viable Monell claim against the city. (Mem. in
Opp. at 3). It is well-established, however, that a municipality “may not be sued under § 1983
for an injury inflicted solely by its employees or agents.” Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 694 (1978). “Rather, liability can be imposed on a local government only where that
government’s policy or custom is responsible for causing the constitutional violation or injury.”
Kelley, 288 F.3d at 9 (citing Monell, 436 U.S. at 690–91). Here, even assuming that there was a
constitutional violation, the complaint does not allege that the City has a policy or custom of
terminating employees without due process. Nor can courts infer the existence of such a policy
or custom from a single isolated instance of misconduct. See City of Oklahoma City v. Tuttle,
471 U.S. 808, 831 (1985). Accordingly, the complaint does not state a viable Monell claim, and
Count Three will be dismissed.
IV. Conclusion
For the foregoing reasons, defendant’s motion to dismiss for failure to state a claim is
GRANTED.
So Ordered.
/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
Dated: March 27, 2019 United States District Judge