“Although the arbitrator’s factual findings are not dispositive, they may be entitled to great weight.” (citing McDonald v. City of W. Branch, 466 U.S. 284, 292 n.13 (1984))
How later courts described this case
- “Although the arbitrator’s factual findings are not dispositive, they may be entitled to great weight.” (citing McDonald v. City of W. Branch, 466 U.S. 284, 292 n.13 (1984))
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
________________________________________
)
)
MICHAEL RAE, )
)
Plaintiff, )
)
v. ) Civil Action
) No. 19-11044-PBS
COMMONWEALTH OF MASSACHUSETTS )
MASSACHUSETTS BAY TRANSPORTATION )
AUTHORITY, KENNETH GREEN, individually, )
and RICHARD SULLIVAN, individually, )
)
Defendants. )
________________________________________)
MEMORANDUM AND ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
April 22, 2021
Saris, D.J.
INTRODUCTION
Lieutenant Michael Rae (“Lt. Rae”) sues his former employer,
the Massachusetts Bay Transportation Authority (“MBTA”), and its
employees Kenneth Green (“Chief Green”), Chief of the MBTA Transit
Police Department, and Richard Sullivan (“Supt. Sullivan”),
Superintendent of the MBTA Transit Police Department, alleging
that his termination for sleeping on the job during multiple night
shifts was racially motivated and violates his First Amendment
rights and state law. He asserts the following claims: (1) the
MBTA and Chief Green discriminated against him because of his race
(white) in violation of Mass. Gen. Laws ch. 151B (Count I); (2) the
MBTA and Chief Green retaliated against him for filing an internal
complaint of harassment against Chief Green in violation of Mass.
Gen. Laws ch. 151B (Count III); (3) Chief Green and Supt. Sullivan
retaliated against him because of his union affiliation in
violation of the First Amendment and 42 U.S.C. § 1983 (Count V);
(4) Supt. Sullivan interfered with his First Amendment rights by
means of threats, intimidation, and/or coercion in violation of
the Massachusetts Civil Rights Act (the “MCRA”), Mass. Gen. Laws
ch. 12, § 11H (Count VI); (5) Chief Green and Supt. Sullivan
intentionally interfered with his contractual rights in violation
of state common law (Count IV); and (6) the MBTA failed to pay him
all the wages to which he was entitled in violation of the
Massachusetts Wage Act, Mass. Gen. Laws. Ch. 149, § 148 (Count
VII).1 Defendants move for summary judgment on all six claims.
For the following reasons, the Court ALLOWS their motions.
BACKGROUND
The facts, viewed in the light most favorable to Lt. Rae as
the nonmoving party, are as follows.
1 The parties previously stipulated to dismissal with prejudice
of Count II, which asserted a claim of discrimination based on
veteran status against the MBTA and Chief Green. See Dkt. 29.
I. Initial Investigation
Effective March 5, 2016, the MBTA Transit Police Department
(the “Department”) assigned Lt. Rae, who is white, to work the
11:30 p.m. to 7:30 a.m. shift, known throughout the Department as
the “last half shift.” Depending on the day, Lt. Rae would serve
either as the “Duty Supervisor” or a “Road Lieutenant” on the last
half duty shift. The Duty Supervisor is the highest-ranking
officer on duty during last half shifts. He or she works from the
“Duty Supervisor’s Desk” – a desk located on an elevated platform
within the dispatch area from which one can see the entire facility
– and is responsible for supervising the operations of the
Department throughout the entire MBTA system. The Road Lieutenant
is the highest-ranking officer on the road during last half shifts
and is responsible for monitoring and supervising the work of the
patrol officers, monitoring MBTA property, and responding to
emergencies and other calls for service.
At 1:50 a.m. on Sunday, September 25, 2016, during a last
half shift for which Lt. Rae served as Duty Supervisor, a call
came in that a 13-year-old boy had been found asleep on a Silver
Line bus at the Southampton Garage. Officer Bartlett responded to
the call. Although standard procedure for the protection of
juveniles is to query the Criminal Justice Information System to
determine whether the child has been reported as missing, assess
whether the child needs medical or other services, contact the
Department of Children and Families, determine the child’s
residential address, and release the child only to a parent or
guardian, Officer Bartlett merely asked the boy for “his name,
[date of birth], and . . . home address” and “transported” the boy
to the apartment building he gave as his address without contacting
a parent or guardian. Dkt. 44-3 at 3.
The next day, while reviewing the events of the weekend,
Deputy Chief Preston Horton (“D.C. Horton”) and Supt. Sullivan
independently became aware of the call. Concerned, Supt. Sullivan
emailed Lt. Rae and Sergeant Carrasco, the Patrol Supervisor,
stating, “one is left to assume a thirteen-year-old is found
sleeping on a bus at 2AM and NO additional steps were undertaken
to determine how that came to be, the juvenile’s physical/mental
state of being, who received the child upon transport to his
residence etc.” Dkt. 42-2 at 2 (emphasis in original). He
instructed them to “[a]scertain as much information as possible
and adjust this report immediately.” Id. D.C. Horton separately
emailed Sergeant Carrasco to determine if Officer Bartlett had
taken the requisite steps despite failing to include them in his
report. [Dkt. 40 ¶ 21] Sergeant Carrasco confirmed that Officer
Bartlett had not followed appropriate protocol.
Because he considered the mishandling of this event to be
very serious – the child had been reported missing on September
21, 2016 and was not located again until September 29, 2016 – Supt.
Sullivan asked Deputy Chief Sean Reynolds (“D.C. Reynolds”) to
investigate how the incident had occurred. D.C. Reynolds sent
notices of investigation and a set of written questions to several
officers whom he believed had knowledge of the situation, including
Lt. Rae.2
In his answers to D.C. Reynolds’s written questions, Lt. Rae
stated that he was “unaware” of the call and referred to Officer
Bartlett’s report for any details regarding its handling. Dkt.
43-2 at 3. His responses surprised D.C. Reynolds because Lt. Rae,
as the Duty Supervisor for the relevant shift, “should have been
aware of this call for service” in real time. Dkt. 43 ¶ 14.
Suspecting that Lt. Rae was not at the Duty Supervisor’s Desk when
the call came in, D.C. Reynolds reviewed the video records of a
camera (referred to as the “mantrap video”) positioned to capture
all entries and exits from the dispatch area to determine his
whereabouts. These records showed Lt. Rae leaving the dispatch
area in a hooded sweatshirt at 1:46 a.m. during the September 24-
25, 2016 last half shift and not returning until 6:04 a.m. Because
“Duty Supervisors are expected to work at the Duty Supervisor’s
Desk” unless they responding to a call for service, D.C. Reynolds
2 These other officers cooperated in the investigation and
received discipline ranging from a written reprimand to a one-day
suspension.
found Lt. Rae’s four-hour absence “both inexplicable and very
concerning.” Dkt. 43 ¶ 20.
Per standard operating procedure, D.C. Reynolds broadened the
scope of his investigation to determine if the unexplained absence
constituted a single instance of misconduct or was part of a larger
pattern of wrongdoing. He reviewed the mantrap video for the two
last half shifts Lt. Rae worked before the September 24-25 shift
and the two last half shifts he worked after it. During all four
of these shifts, Lt. Rae disappeared for prolonged periods (between
1 hour and 43 minutes and 4 hours and 39 minutes) without
explanation.
II. Expanded Investigation
D.C. Reynolds reported his findings to Supt. Sullivan, who
authorized D.C. Reynolds to conduct an expanded investigation into
misconduct.
On October 17, 2016, during fire alarm testing, D.C. Reynolds
discovered that the “Night Lieutenant’s Office,” a room available
for night lieutenants to use in situations requiring more privacy
than the dispatch area can provide (e.g., when a citizen comes in
to make a complaint), was locked. D.C. Reynolds tried using the
master key to access the room, but it did not work. When he asked
the building manager for a copy of the key to this room, the
building manager informed him that Lt. Rae had taken the key and
had never returned it. D.C. Reynolds accordingly arranged for a
locksmith to change the lock.
After the locksmith opened the door, D.C. Reynolds, now joined
by D.C. Horton and Supt. Sullivan, entered the office. The three
observed a “cot set up in the room with a sleeping bag and pillow”;
“a heater . . . set up on the desk next to the cot”; “a duffle bag
and a blanket”; a computer; and a filing cabinet labeled “Superior
Officers Association.” Dkt. 43 ¶¶ 27, 28. They also found a
deadbolt on the only door providing access to the room. Lt. Rae
later admitted to installing the deadbolt without permission.
Lt. Rae discovered he could no longer access the Night
Lieutenant’s Office later that night. He immediately emailed D.C.
Reynolds asking to be “inform[ed] . . . of the change” and for
“access to the office.” Dkt. 43-6 at 2. When he later received
permission from D.C. Reynolds to retrieve his personal property,
the sleeping materials were among the items he removed. D.C.
Reynolds accordingly concluded that Lt. Rae had been using the
Night Lieutenant’s Office as a makeshift sleeping quarters during
the hours in which he was missing in his last half shifts.
D.C. Reynolds pulled the available mantrap video records,
which went back 90 days, to determine how often Lt. Rae was absent
from dispatch while serving as Duty Supervisor or not on the road
while serving as Road Lieutenant. He also interviewed several
officers and lieutenants about their experiences on the last half
shift. The officers confirmed that Lt. Rae would often be “absent
from dispatch for long periods of time and that this was not true
of other Duty Supervisors for whom they worked.” Dkt. 43 ¶ 45.
The lieutenants confirmed that “they worked their shifts from the
Duty Supervisor’s Desk except when their duties required that they
be elsewhere,” i.e., that they did not perform their duties out of
the Night Lieutenant’s Office. Dkt. 43 ¶ 46.
Although the Department did not authorize lieutenants to
perform their duties from the Night Lieutenant’s Office, D.C.
Reynolds nonetheless sought to verify whether Lt. Rae was
performing his duties while absent. In that vein, he cross-
referenced audio recordings (which allowed him to see if Lt. Rae
spoke on the radio or answered the Duty Supervisor’s recorded line
in dispatch); access card reports (which allowed him to see if Lt.
Rae tapped into any work-related area); computer logs (which
allowed him to see if, when, and from which computer Lt. Rae was
logged in, including the computer in the Night Lieutenant’s
Office); and the dispatch system (which allowed him to see if Lt.
Rae responded to or backed up any officer on call). Based on the
information he gathered, D.C. Reynolds “concluded that Lt. Rae was
absent from the Duty Supervisor’s Desk when he was the assigned
Duty Supervisor and absent from his responsibilities on the road
as Road Lieutenant for an aggregate of 176 hours, 9 minutes during
the period July 19, 2016 – October 24, 2016 and that he was not
performing his duties during those missing hours” but was instead
sleeping while on duty. Dkt. 43 ¶ 48. He also determined that
Lt. Rae had violated the uniform requirements of the Department
during at least 19 shifts and had failed to comply with a policy
mandating disclosure to Professional Standards on at least 36
occasions in which he used the Emergency Access Card.
III. Disciplinary Hearing and Termination
Chief Green, who is black, placed Lt. Rae on administrative
paid leave (“APL”) on November 10, 2016. Two and a half months
later, after reviewing the results of D.C. Reynolds’s
investigation, Chief Green notified Lt. Rae that the MBTA would
conduct a Disciplinary Hearing on charges including Dereliction of
Duty, Sleeping While on Duty, Failure to Supervise, and Abuse of
Position. The Disciplinary Hearing occurred on February 2, 2017
and March 1, 2017. After listening to the parties’ arguments and
reviewing their evidence, the Hearing Officer, who is white,
concluded that just cause existed as to “all of the charges”
asserted against Lt. Rae. Dkt. 41-4 at 15; see also id. at 11-
15.
Chief Green, in consultation with Supt. Sullivan, D.C.
Reynolds, and D.C. Horton, terminated Lt. Rae’s employment
effective March 28, 2017. Supt. Sullivan, D.C. Reynolds, and D.C.
Horton are white.
IV. Arbitration
The MBTA Police Superior Officers Association (the “Superior
Officers Union”), which represented Lt. Rae, demanded arbitration
pursuant to the parties’ Collective Bargaining Agreement.
Arbitrator Mary Jeanne Tufano (“Arbitrator Tufano”) was assigned
to the case. She conducted evidentiary hearings on October 19,
20, 23, 24, and 25, 2017.
During these hearings, Lt. Rae did not dispute that he had
spent long periods of time in the Night Lieutenant’s Office while
serving as Duty Supervisor or Road Lieutenant. He instead
maintained that Department policy allowed him to perform his duties
from “wherever the job took” him, including the Night Lieutenant’s
Office. Dkt. 45-2 at 23. The MBTA offered testimony from other
lieutenants who had had worked the last half shift contradicting
Lt. Rae’s position. The MBTA also offered the testimony of a
patrol officer who had worked with four Duty Supervisors, including
Lt. Rae, on the last half shift that Lt. Rae was the only one to
leave the Duty Supervisor’s Desk for extended periods of time.
Arbitrator Tufano issued her decision on February 8, 2018.
She noted that the “gravamen” of the MBTA’s complaint was “the
‘unaccounted for’ time that Lt. Rae spent away from the [D]uty
[S]upervisor’s [D]esk in the dispatch area, or not on the road
when serving as road lieutenant.” Dkt. 45-3 at 37. Because the
evidence “establishe[d]” that Lt. Rae was not performing the duties
of these positions during these periods of unaccounted-for time,
she determined that just cause existed for disciplining him. Id.
at 39. And because she found “the dereliction of duty offense,”
if not the other conduct (e.g., failing to wear a uniform or
failing to report use of the Emergency Access Card), to be a
“serious offense meriting discharge,” she sustained the penalty of
termination. Id. at 46-47. In doing so, she rejected the Superior
Officers Union’s contention that the discharge was motivated by
anti-union bias.
V. Union Activity
Lt. Rae first became a member of the Superior Officers Union
when he was promoted to lieutenant in 2013. In 2014, he was
elected as the union’s Vice President, and in 2015, he became its
President. In his role as President, he “routinely filed
grievances . . . regarding the uniform allowance, union delegates,
TPSA commander overtime, TPSA reorganization, accreditation, and”
terminations. Dkt. 45-3 at 9.
On June 28, 2016, the recently terminated Vice President of
the Superior Officers Union, Lieutenant Christopher Maynard,
publicly posted a picture of Supt. Sullivan sleeping during a break
in an interest arbitration. Later that day, Supt. Sullivan called
Lieutenant Richard Salisbury, a member of the Executive Board of
the Superior Officers Union, to complain. During the call, Supt.
Sullivan allegedly stated that the General Manager of the MBTA had
authorized him to hire a private detective to investigate the
officers on the Executive Board at his own expense, and he
threatened to spend up to $20,000 of his own money suing them for
“defamation of character.” Dkt. 54-2 ¶ 4. Supt. Sullivan also
allegedly told a different union individual, Lieutenant Richard
Campos, that he was going to “crush you guys.” Dkt. 45-3 at 10.
Supt. Sullivan disputes making either statement.
The Superior Officers Union subsequently denounced Lt.
Maynard’s post and disclaimed having any role in it.
VI. Complaints Filed by Lt. Rae
On September 27, 2016, Lt. Rae filed a complaint with the
Office of Diversity and Civil Rights, alleging that Sergeant
Michael Flanagan, the president of the union representing police
sergeants, had threatened to physically harm him during a union
meeting. After investigating the complaint, Supt. Sullivan
concluded that the allegations were “not sustained.” Dkt. 42-4 at
12.
On November 10, 2016, after learning about his impending
placement on APL, Lt. Rae filed another complaint with the Office
of Diversity and Civil Rights, this time accusing Chief Green of
intimidation and harassment. Supt. Sullivan and D.C. Reynolds did
not learn of Lt. Rae’s complaint against Chief Green until several
days after they placed Lt. Rae on APL.
VII. Chief Green Interview
In April of 2016, a local radio station interviewed Chief
Green about his vision for the Department. During the interview,
Chief Green discussed the preference given to veterans in hiring
decisions. He acknowledged that veterans are “deserv[ing] of
having preference” but noted that “people in the community deserve
new positions as well.” Dkt. 45-9 at 9. He explained that he
planned to navigate this “tricky situation” by making a more
“concentrated effort to recruit minority veterans and minorities
within the community.” Id. He further expressed a desire to
“darken” up the Department, which was then seventy-four percent
white. Id. at 17.
DISCUSSION
I. Legal Standard
Summary judgment is appropriate when, based upon the
pleadings, affidavits, and depositions, “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is
“material” if it “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A dispute is “genuine” if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.”
Id.
Generally, “a party seeking summary judgment always bears the
initial responsibility of informing the district court of the basis
for its motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). “To succeed, the moving party must show that there is an
absence of evidence to support the nonmoving party’s position.”
Rogers v. Fair, 902 F.2d 140, 143 (1st Cir. 1990). Once it has
made the requisite showing, the burden shifts to the nonmovant to
“present definite, competent evidence to rebut the motion” and
demonstrate that a “trialworthy issue persists.” Vineberg v.
Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008) (internal citations
and quotations omitted). “‘[T]he mere existence of a scintilla of
evidence’ is insufficient to defeat a properly supported motion
for summary judgment.” Torres v. E.I. Dupont De Nemours & Co.,
219 F.3d 13, 18 (1st Cir. 2000) (quoting Anderson, 477 U.S. at
252).
II. Racial Discrimination Claim (Count I)
In Count I, Lt. Rae claims that the MBTA and Chief Green
terminated him because of his race (white) in violation of Mass.
Gen. Laws ch. 151B. He argues that the April 2016 radio interview
of Chief Green constitutes direct evidence of discrimination. The
Court disagrees. During the interview, Chief Green discussed the
need for increased diversity in the workforce and the effort to
recruit minorities. He did not discuss any matter that would
constitute direct evidence of a discriminatory motive involving
Lt. Rae’s termination, which occurred nearly a year later. Cf.
Patten v. Wal-Mart Stores E., Inc., 300 F.3d 21, 25 (1st Cir.
2002). The claim itself thus must be assessed using the burden-
shifting paradigm set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
Under the McDonnell Douglas paradigm, a plaintiff bears the
initial burden “to show by a preponderance of the evidence a prima
facie case of discrimination.” Blare v. Husky Injection Molding
Sys. Boston, Inc., 646 N.E.2d 111, 115 (Mass. 1995). If the
plaintiff makes the requisite showing, the burden shifts to the
employer to “rebut the presumption created by the prima facie case
by articulating a legitimate, nondiscriminatory reason for its
[employment] decision.” Id. If the defendant proffers a
legitimate, nondiscriminatory reason for its action, “the burden
of production shifts back to the plaintiff employee, requiring the
employee to provide evidence that ‘the employer’s articulated
justification is not true but a pretext.’” Bulwer v. Mount Auburn
Hosp., 46 N.E.3d 24, 33 (Mass. 2016) (cleaned up) (quoting Blare,
646 N.E.2d at 116).
Chief Green and the MBTA focus their arguments on the second
and third stage of the McDonnell Douglas test, contending that
they have met their burden to articulate a legitimate, non-
discriminatory reason for the termination – Lt. Rae’s misconduct,
as confirmed by D.C. Reynolds’s investigation and the decision of
the Hearing Officer – and that Lt. Rae has not provided evidence
that this justification is a pretext.
Lt. Rae seeks to establish pretext in two ways.3 First, he
argues that the extreme nature of the punishment – termination –
indicates pretext. It is true that, as he notes, Defendants have
not offered any evidence that he had ever been subject to a prior
disciplinary sanction. But given the extent of the dereliction of
duty (176 hours of sleeping on the job), no reasonable juror could
find that the harshness of the punishment, standing alone,
establishes pretext. Nor has Lt. Rae offered evidence of
differential treatment of similarly situated individuals which
would support a reasonable inference that the severity of his
punishment reflected untruthfulness.
Second, Lt. Rae relies on the contents of the April 2016 radio
interview to demonstrate racial animus. In the interview, Chief
Green discussed his hope of “darken[ing]” the Department. Dkt.
45-9 at 17. He said that the Police Department was “too white.”4
3 Because he does not mention the alleged comments Chief Green
made to Lt. Rae while Lt. Rae was a recruit at the police academy
or after Lt. Rae arrested a young black woman who had littered at
an MBTA station and refused to leave, he has waived any argument
that these comments demonstrate pretext.
4 He did not, however, make any derogatory or negative statements
about white individuals.
Id. He also relies on allegations that Chief Green, when he was
a lieutenant, called another lieutenant (white) a racist.
Plaintiff’s counsel presses the Court to infer racial bias from
these statements. He maintains that, if Chief Green had discussed
a desire to increase the representation of whites in the
Department, his comments would likely be interpreted as racist.
The Court does not find the argument reasonable. Although Lt. Rae
disagrees with the language used by Chief Green in the interview,
even he acknowledges that “diversity in law-enforcement
departments is a lofty, admirable and necessary goal.” Dkt. 52 at
14. In any event, it is undisputed that Lt. Rae was terminated
after an extensive investigation into suspected misconduct. Lt.
Rae does not challenge the ultimate findings of this investigation
(e.g., that he slept on the job for 176 hours), which was conducted
by white officers, and there is no evidence that Chief Green played
any role in initiating or directing the scope of the investigation.
Moreover, there is no evidence his decision was tainted by any
alleged racial bias. The Court accordingly ALLOWS the motion for
summary judgment on Count I.
III. Retaliation Claim (Count III)
In Count III, Lt. Rae asserts that the MBTA and Chief Green
retaliated against him for filing a harassment and intimidation
complaint against Chief Green on November 10, 2016, the same date
he was put on paid administrative leave. The court can discern
two alleged adverse actions from this claim: placement on APL and
termination. As to the first, the fact that Defendants
indisputably did not become aware of the complaint until after
they placed Lt. Rae on APL defeats any finding of causation. As
to the second, causation is again lacking because Lt. Rae offers
no evidence to tie his termination to the act of filing of his
complaint. He relies solely on timing, but the investigation
against Lt. Rae began several months before Lt. Rae filed the
complaint, and a plaintiff cannot manufacture a claim of
retaliation by filing a complaint after finding out he is under
investigation. The Court ALLOWS the motion for summary judgment
on Count III.
IV. First Amendment Claims (Count V)
Lt. Rae asserts § 1983 claims against Chief Green and Supt.
Sullivan for retaliation in violation of the First Amendment based
on his union activities. To make out a prima facie case of First
Amendment retaliation, a plaintiff must show that “(1) he engaged
in an activity protected by the First Amendment; (2) [the
defendant] took an adverse action against him; and (3) there is a
causal link between the protected activity and the adverse action.”
Staples v. Gerry, 923 F.3d 7, 15 (1st Cir. 2019) (citing Hannon v.
Beard, 645 F.3d 45, 48 (1st Cir. 2011)).
Defendants do not dispute that Lt. Rae’s participation in
the Superior Officers Union qualifies as “activity protected by
the First Amendment.” See id. They dispute, however, whether Lt.
Rae has tied his termination to any anti-union animus.
Lt. Rae fails to offer any evidence that Chief Green harbored
anti-union animus, let alone that such animus was a substantial
and motivating factor behind his termination. He argues instead
that Chief Green, by approving the termination, became
“responsible for” the alleged anti-union animus of Supt. Sullivan,
not that he had any anti-union animus himself. He relies on a
“cat’s paw” theory of liability,5 essentially arguing Chief Green
was tainted by Sup. Sullivan’s anti-union animus. Dkt. 52 at 15.
The flaw in this theory is that Lt. Rae has not met his burden
to establish a genuine dispute of material fact on the claim
against Supt. Sullivan. Lt. Rae, the union president and a union
activist, has adduced some (disputed) evidence that Supt. Sullivan
harbored anti-union animus: The record indicates that Supt.
Sullivan may have threatened to privately investigate and
personally sue each member of the Union Executive Board using
$20,000 of his own money and that he may have threatened to “crush”
the union. However, Lt. Rae offers nothing to link any alleged
anti-union bias to his termination. And in the absence of any
5 “The ‘cat’s paw theory’ is employed when one ‘seeks to hold
his employer liable for the animus of a supervisor who was not
charged with making the ultimate employment decision.’” Ameen v.
Amphenol Printed Cirs., Inc., 777 F.3d 63, 68 (1st Cir. 2015)
(quoting Staub v. Proctor Hospital, 562 U.S. 411, 422 (2011)).
evidence of causation, the Court gives weight to Arbitrator
Tufano’s determination, amply supported by the record,6 that the
circumstances of the termination itself establish “that Lt. Rae
was not discharged for his Union activity.” Dkt. 45-3 at 44; see
Wojcik v. Massachusetts State Lottery Comm’n, 300 F.3d 92, 105
(1st Cir. 2002) (“Although the arbitrator’s factual findings are
not dispositive, they may be entitled to great weight.” (citing
McDonald v. City of W. Branch, 466 U.S. 284, 292 n.13 (1984))).
The Court accordingly ALLOWS the motion for summary judgment on
Count V.
V. MCRA Claim (Count VI)
In Count VI, Lt. Rae asserts that Supt. Sullivan interfered
with his First Amendment rights by means of threats, intimidation,
or coercion when he threatened to sue or “crush” members of the
Executive Board. Dkt. 45-3 at 10. To bring a claim under the
MCRA, Mass. Gen. Laws ch. 12, § 11H, a plaintiff must show “(1)
his exercise or enjoyment of rights secured by the Constitution or
6 For example, consistent with Arbitrator Tufano’s findings, the
record indicates that, despite making the alleged anti-union
comments in June of 2016, Supt. Sullivan did not authorize any
investigation against Lt. Rae until D.C. Reynolds independently
discovered evidence of wrongdoing during an investigation into the
mishandling of the September 25, 2016 incident. Moreover, once he
approved the expanded scope of the investigation, Supt. Sullivan
did not play any active role in conducting it (aside from being
physically present when D.C. Reynolds first entered the Night
Lieutenant’s Office). Nothing in these facts suggest that Supt.
Sullivan engaged in “untoward ‘digging’ to manufacture charges
against Lt. Rae.” Dkt. 45-3 at 45.
laws of either the United States or the Commonwealth, (2) has been
interfered with, or attempted to be interfered with, and (3) that
the interference or attempted interference was by threats,
intimidation or coercion.” Meuser v. Fed. Express Corp., 564 F.3d
507, 516 (1st Cir. 2009) (internal quotation marks and citations
omitted).
Here, Lt. Rae asserts that Supt. Sullivan’s threats to Lt.
Salisbury and Lt. Campos constituted an attempt to interfere with
his right of association under the First Amendment. However, he
does not explain how the threats to “crush” the members of the
Executive Board had any link to his termination or otherwise
affected plaintiff’s constitutional rights. See Goddard v.
Kelley, 629 F. Supp. 2d 115, 128 (D. Mass. 2009). The Court
accordingly ALLOWS the motion for summary judgment on Count VI.
VI. Intentional Interference Claims (Count IV)
In Count IV, Lt. Rae asserts that Chief Green and Supt.
Sullivan intentionally interfered with his contractual
relationship with the MBTA. To establish intentional interference
with a contractual relationship, Lt. Rae must prove that (1) “he
had an advantageous relationship with” the MBTA; (2) Supt. Sullivan
and Chief Green “knowingly induced a breaking of the relationship”;
(3) Supt. Sullivan and Chief Green acted under an “improper” motive
or means; and (4) their actions caused Lt. Rae harm. See Rando v.
Leonard, 826 F.3d 553, 556 (1st Cir. 2016) (quoting Blackstone v.
Cashman, 860 N.E.2d 7, 12-13 (Mass. 2007)). Because Supt. Sullivan
and Chief Green supervised Lt. Rae at the relevant time, Lt. Rae
must further show that the “improper” motive or means underlying
their actions encompassed actual malice. See Pierce v. Cotuit
Fire Dist., 741 F.3d 295, 304 (1st Cir. 2014) (citations omitted).
Mere hostility is insufficient. See id.
The only evidence of actual malice offered by Lt. Rae is the
alleged anti-union animus of Supt. Sullivan. But Lt. Rae has
failed to causally link any anti-union animus to his termination
(or even the underlying investigation precipitating his
termination), as discussed in more detail above. And without any
basis for inferring the existence of a causal link between the
two, no reasonable juror could find that Supt. Sullivan acted under
an improper motive in recommending Lt. Rae for termination. The
Court accordingly ALLOWS the motion for summary judgment on the
portion of Count IV asserted against Supt. Sullivan.
As for the portion of Count IV asserted against Chief Green,
Lt. Rae does not appear to argue that it should survive the instant
motion for summary judgment. The Court accordingly ALLOWS the
motion for summary judgment on this claim.
VII. Wage Violation Claim (Count VII)
Count VII asserts a claim against the MBTA for unpaid wages
for “days owed” and “comp time” under the Massachusetts Wage Act.
The MBTA persuasively argues that the claim is precluded by § 301
of the Labor Management Relations Act, 29 U.S.C. § 185(a), because
these issues are covered by the Collective Bargaining Agreement.
Lt. Rae does not appear to rebut that “days owed” and “comp time”
are creatures of the Collective Bargaining Agreement.
Moreover, the MBTA, as a branch of the Commonwealth of
Massachusetts, is entitled to sovereign immunity. See Smith v.
Massachusetts Bay Transp. Auth., 968 N.E.2d 884, 888 (Mass. 2012).
Even if there is no preemption, Lt. Rae must show that the
Commonwealth has waived sovereign immunity with respect to his
Wage Act claim. By its express terms, the Wage Act applies to the
Commonwealth only with respect to “mechanic[s], workm[e]n and
laborer[s]” or employees of a “penal” institution. Mass. Gen.
Laws ch. 149, § 148. Lt. Rae argues that “law enforcement officers
such as an MBTA police officer” fall within the scope of this class
of employees. The Massachusetts Appeals Court recently rejected
a similar claim brought by court officers, at least in part on the
ground they perform police duties. Donahue v. Trial Ct., 164
N.E.3d 925, 931-32 (Mass. App. Ct. 2021). The Court holds that
the Wage Act does not waive the Commonwealth’s sovereign immunity
with respect to claims brought by MBTA law enforcement officers.
The Court accordingly allows the motion for summary judgment on
Lt. Rae’s Wage Act claim.
ORDER
For the reasons stated above, the motions for summary judgment
(Dkts. 36 & 38) are ALLOWED. The Clerk will enter judgment against
Lt. Rae on Counts I, III, IV, V, VI, and VII and orders that the
case be closed.
SO ORDERED.
/s/ PATTI B. SARIS
Patti B. Saris
United States District Judge