O'Rourke v. Hampshire Council of Governments (121 F. Supp. 3d 264, 2015)

MEMORANDUM AND ORDER REGARDING DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

MASTROIANNI, United States District Judge

I. Introduction

John O’Rourke (“Plaintiff’), proceeding pro se, brings this action against the Hampshire Council Governments, as well as individual members of the Executive Committee of the Council — William R. Barnett, Eileen Stewart, Carol P. Constant, Michael P. Sarsynski, George A. Symborski, and Todd D. Ford, in their official capacities (together, “Defendants”). On April 2, 2015, Defendants moved to dismiss Plaintiffs complaint. (Dkt No. 15.) Plaintiff opposed this motion on May 11, 2015. (Dkt. No. 20.) The court took this motion under advisement without a hearing. (Dkt. No. 22.)

After reviewing the parties’ submissions and the relevant law, the court denies Defendants’ motion to dismiss with respect to Plaintiffs 42 U.S.C. § 1983 claim (Count I), Plaintiffs Conspiracy to Violate 42 U.S.C. § 1983 claim (Count IV), and Plaintiffs breach of contract claim (Count II). Assuming Plaintiff has not conceded his Open Meeting Law claim (Count III), the court will grant Defendants’ motion to dismiss this claim without prejudice.

II. Plaintiff’s Factual Allegations

On February 6, 2012, Plaintiff entered into a written employment agreement with the Hampshire Council of Governments (the “Council”) to serve as the Council’s Director of Electricity. (Dkt. No 1, Complaint (“Compl.”) ¶ 13.) This agreement provides that “[a]ll provisions of the ... regulations and rules of the Council relating to personnel policy ... as they now exist or hereafter may be amended ... shall apply to [Plaintiff].” (CompLEx. A.1). Plaintiff was given the aforementioned Council’s Personnel Policies and Procedures Manual (the “Personnel Manual”), which set forth the specific terms and conditions of his employment, describing itself as a “covenant between the employer and employee.” (CompLEx. C. 2.) The Personnel Manual discusses, inter alia, the purpose of, length of, and protocol for discharge during, an employee’s probationary period. In relevant part, it specifically provides:

D. Probationary Period

1. Purpose

The probationary period shall be utilized to observe an employee’s work performance, 'including competency, habits, abilities,' attitudes, and any other pertinent characteristic) to allow for an effective evaluation of a new employee.' ■

2. Length of probation

a) Each new employee ... shall be required to' complete satisfactorily a six-month probationary period....

b) The probationary period may be extended by the Department Head, with approval of the Executive Director, for up to six additional months if it is felt to be justified and that it could allow the employee to develop the ability to perform the duties of the position satisfactorily....

3. Termination while on probation

At any time during the probationary period, an employee may be terminated without cause by the Department - Head, with approval of the Executive Director

(CompLEx. C. 8.) On or about August 7, 2012, this probationary period expired for Mr. O’Rourke. Id. ¶ 22.) The Personnel Manual later describes the protocol for discharging a non-probationary employee or Department Head, stating:

4.Discharge

a) The Executive Director with the Department Head may discharge an employee for unsatisfactory job performance, violation of Council’s rules and regulations, or for any situation or instance of such seriousness that discharge is warranted.

b) The Executive Director, with an Executive Committee member, may discharge a Department Head for unsatisfactory’ job performance, violation of Council’s rules and regulations, or for any situation or instance of such seriousness that discharge is warranted.

c)‘ An employee shall be given written notice of the discharge signed by the appropriate Department Head and Executive Director specifying:

• the date of discharge;

• the specific behavior and dates of the behavior, as appropriate;

• the right to appeal the discharge and the grievance procedures ■ to follow for an appeal.

d) A copy of the notice of discharge shall be placed in the employer’s personnel file.

(Id. Ex. C.28.)

During the summer of 2013, the Council’s Executive Committee met in private at several points. (Id. ¶ 27.) On August 15, 2013, the Executive Council unanimously voted in favor of discharging Plaintiff. (Id.) On August 19, 2013, Plaintiff was notified the Executive Council made the decision to terminate him, and that his discharge was effective immediately. (Id. ¶ 33.) Plaintiff did not receive any prior notification that he was to be dismissed; he was not invited to speak on his own behalf prior to the dismissal. (Id. ¶ 35.)

Plaintiff then sent the Executive Committee a request seeking an opportunity to be heard regarding his discharge. (Id. ¶ 36.) On August 28, 2013, the Chairman of the Executive committee denied Plaintiffs request for a hearing and instructed him to direct any future correspondence to the Council’s attorneys. ( Id. ¶ 37.) On September 5, 2013, Plaintiff met with a Council member and an attorney for the Council and requested a hearirig regarding his termination. (Id. ¶ 38.) These individuals told Plaintiff, for the first time, that his dismissal was “not for cause,” and therefore that the procedural protections set forth in the Personnel Manual governing the discharging of Department Heads were “not applicable.” (Id.) On that same day, Plaintiff emailed the Council member and the attorney for the Council with whom he had met, again • requesting a hearing. (Id. ¶ 39.) A few hours later, oh September 5, 2013, Plaintiff was notified he could appear before the Executive Committee that evening, although he was also informed that the Executive Committee would not conduct an “executive session” for him. (Id. ¶ 40.) He therefore was only permitted to appear before the Executive Committee, in “open session” and under what he alleges to have been “very restrictive conditions amounting to a gag order.” (Id.) Specifically, Plaintiff states he was “prohibited from questiqning or speaking about his dismissal, or the multiple violations of the Council’s, written policies, or the multiple violations of law surrounding his dismissal.” (Id.)

On September 9, 2013, Plaintiff received a letter from the Council’-s attorney; stating that, since he had been dismissed “not for cause,” “the procedure for discharging a Department Head outlined in the amended Personnel Manual” waá “inapplicable and is not available to” Plaintiff. (Id, ¶42.) On October 18, 20Í3,' Plaintiff filed an Open Law Meeting complaint against the Council with the Division of Open Government of the Office of the Attorney General (“AG”). (Id. ¶ 43.) The AG conducted an investigation, and found that the Executive Committee of the Council violated the Open Meeting Law in no fewer than six instances. (M ¶ 45.)

III. Standard of Review

To survive a 12(b)(6) motion to dismiss, a complaint must'allege facts that “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Thus, the factual allegations in the complaint must ’‘nudget ][the] claims across the line from conceivable to plausible.” Id. at 570, 127 S.Ct. 1955. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference the defendant is liable for the • misconduct alleged; Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “Determining whether a complaint states a plausible claim for relief’ is a context-specific task, requiring “the reviewing court to draw on its judicial experience and common sense.” Id. at 679, 129 S.Ct. 1937.

Courts are not required to accept as true allegations in a complaint that are legal conclusions. Id. at 678, 129 S.Ct. 1937. However, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679, 129 S.Ct. 1937. Therefore, in assessing a claim’s plausibility, the court must construe the complaint in the plaintiffs favor, accept all non-conclusory factual allegations as true, and draw any reasonable inferences in favor of the plaintiff. See, San Gerónimo Caribe Project, Inc. v. Acevedo-Vilá, 687 F.3d 465, 471 (1st Cir.2012).

IV. Analysis

A. Procedural Due Process (Count I)

Plaintiff claims the Council deprived him of his constitutionally protected property interest in continued public employment without due process, thereby violating 42 U.S.C. § 1983, when he was allegedly terminated without notice and a chance to speak on his behalf. (CompLIffl 61-65.) Defendant argues this claim must be dismissed because “Plaintiff was an at-will employee and his employment agreement did not permit termination solely ‘for cause.’” (Dkt. No. 16, Mem. of Law in Supp. of Def.’s Mot. to Dismiss (“Def.Mem.”) 2.) Given Plaintiffs factual allegations, as well as documents which may be properly considered at this stage, the court denies Defendant’s motion to dismiss this claim.

“In order to establish a procedural due process claim under [42 U.S.C. § 1983], a plaintiff must allege first that it has a property interest as defined by state law and, second, that the defendants, acting under color of state law, deprived it of that property interest without constitutionally adequate process.” Marrero-Gutierrez v. Molina, 491 F.3d 1, 8 (1st Cir.2007) (internal quotation marks and corresponding citation omitted). “The Due Process Clause of the Fourteenth Amendment protects government employees who possess property interests in continued public employment.” Maymi v. Puerto Rico Ports Auth., 515 F.3d 20, 29 (1st Cir.2008) (internal quotation marks and corresponding citation omitted).

(1) Constitutionally Protected Property Interest

“A public employee has a constitutionally protected interest in continued employment where he has a reasonable expectation, arising out of state statute, rules or the contract, that he will continue to be employed.” Perkins v. Board of Directors of School Administrative Dist., 686 F.2d 49, 51 (1st Cir.1982). Therefore, one who can be discharged from their employment only for cause has a constitutionally protected property interest, whereas one whose may be terminated without cause (one who is employed “at-will”) does not. Id. For this reason, here, the question of whether Plaintiffs interest in his job rises to the level of constitutionally protected “property” depends on whether his employment relationship was such that he could only be terminated “for cause.” See id. This is an issue of state law. Id.

“Massachusetts law assumes at-will employment, unless there exists, expressly or impliedly, a contract governing the terms and conditions of employment.” Derrig v. Wal-Mart Stores, Inc., 942 F.Supp. 49, 54 (D.Mass.1996). Thus, one does not have a constitutionally protected property interest in their employment by default. See Santos v. City of Fall River, 942 F.Supp.2d 178, 188 (D.Mass.2013) (“An at-will employment contract, without more, does not create a reasonable expectation of continued employment.”). By contrast, if one is employed through an employment contract (implied or otherwise), cause is likely a prerequisite to termination. See id. at 188-189.

“It is well-settled in Massachusetts that the terms of a personnel manual may constitute an implied employment contract, thus defeating the presumption that employment is at-will.” Ray v. Ropes & Gray LLP, 961 F.Supp.2d 344, 352 (D.Mass.2013) (internal quotation marks omitted). In order to determine whether a personnel manual effectively implies an employment contract, courts in this district have applied a two-pronged approach. See Derrig, 942 F.Supp. at 55; Applying state law, the court has explained that, in this context, “the central inquiries are: First, did the employee believe that the employment manual[ ] he or she was given constituted the terms or conditions of employment, equally binding on employee and employer^ and sjecond, was this belief reasonable under the circumstances?” Id. The Massachusetts Supreme Judicial Court has also outlined several additional factors to consider (none of which- is dis-positive), holding that “there is no implied contract based on the terms of a personnel manual where: (1) the employer retained the right to unilaterally modify terms; (2) the terms of the manual were not negotiated; (3) the manual stated that it provided only guidance regarding the employer’s policies; (4) no term of employment was specified in the manual; and (5) the employee did not sign the manual to manifest assent.” Day v. Staples, Inc., 555 F.3d 42, 58-59 (1st Cir.2009).

Here, a plausible inference can be made that a reasonable employee would have believed the manual; entitled “Hampshire Council of Governments Personnel Policies and Procedures” constituted a binding employment contract which permitted termination only for cause, following a six-month probationary period. See generally Derrig, 942 F.Supp. at 55. In reaching this conclusion, the court focuses on one line from the employment agreement and three separate provisions from the employment manual. (Compl. Ex. A & Ex. C.)

To begin, when Plaintiff entered into a written employment agreement with Defendants, this agreement provided that “[a]ll provisions of the ... regulations and rules of the Council relating to personnel policy ... as they now exist or hereafter may be amended ... shall apply to [Plaintiff].” (CompLEx. A.l.) With respect to the employment manual, itself, it broadly states at the outset that it is a “covenant between the employer and employee.” (CompLEx. C, 2.) Moving into more specifics from the employment manual, Chapter 2, Section D describes a “six-month probationary period” for “each new employee.” (CompLEx. C. 8.) Within that section, in a subsection entitled “Termination while on probation,” the manual states that, “[a]t any time during the probationary period, an employee may be terminated without cause by the Department Head, with Approval of the Executive Director.” (Id.) It is significant that this is the only explicit mention of an employee’s being terminable “without cause” in the entire employment manual. A plausible inference can therefore be made the manual’s reference to an employee’s terminability “without cause” during only a specific period, in conjunction with the complete lack of specifying an “at-will” employment relationship existed, would reasonably be interpreted as an employment contract. See generally Ian nelle v. Fire Comm’r of Boston, 331 Mass. 250, 118 N.E.2d 757, 759 (1954) (in some situations, omission of contractual terms can aid in contractual interpretation).

Additionally, a section entitled “Discipline and Grievance” describes the' circumstances under which a Department Head can "be discharged. (CompLEx. C. 28.) Specifically, a Department Head may be discharged for “unsatisfactory job performance, violation of Council’s rules and regulations,” or for “any situation or instance of such seriousness that discharge is warranted.” (Id.) The notion of permitting termination only in certain egregious circumstances is tantamount to permission to terminate employees only with some level of cause, at least under the standards, applicable at this stage. See generally Ferry v. Rosewood Constr. Corp., 2008 WL 5216259, *6 (Mass.Super.Ct. Nov. 5, 2008) (“personnel manuals, distributed by employers to employees can create a binding commitment insofar as employees have a reasonable expectation that the employer will adhere to the policies expressed therein.”).

For these reasons) the court draws two pertinent inferences: (1) this manual effectively constituted an employment contract; (2) cause would have been required to discharge Plaintiff after the completion of his probationary period. Therefore, since Plaintiff alleges he had been employed for six month at the time of his discharge (thereby completing his probationary period), the court finds he has plausibly alleged a constitutionally protected property interest in his continued state employment.

Finding an employment contract existed, under the standards applicable at this stage, the court moves to the second prong of the inquiry to determine whether a plausible inference can be made that Plaintiff was deprived of constitutionally adequate process.

(2) ■ Constitutionally Adequate Process

The Procedural Due Process violation “is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process.” Lowe v. Scott, 959 F.2d 323, 340 (1st Cir.1992) (quoting Zinermon v. Burch, 494 U.S. 113, 126, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990)). “Therefore, to determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate.” Id. “This inquiry would examine the procedural safeguards built into the statutory or administrative procedure- of effecting the deprivation, and any remedies for erroneous deprivations provided by statute or tort law.” Id.

The Supreme Court has classified the requisite Procedural Due Process which must accompany a deprivation of a constitutionally protected property interest as “a flexible concept that varies with the particular situation.” ' Zinermon, 494 U.S. at 127, 110 S.Ct. 975. “The [Supreme] Court has not forged a boilerplate standard for determining what process is due in all circumstances, but, instead, has articulated three areas of • particular importance: ‘First-, the private ■ interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’ ” In re Nineteen Appeals Arising out of San Juan Dupont Plaza Hotel Fire Litig., 982 F.2d 603, 611 (1st Cir.1992) (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (“Due process is malleable, calling for such procedural protections as the particular situation demands.”).).

As a general rule, courts agree that an individual is typically entitled to “some kind