Bounphasaysonh v. Town of Webster

Decision Date01 March 2021
Docket NumberNo. 4:19-CV-40085-TSH,4:19-CV-40085-TSH
PartiesHENRY BOUNPHASAYSONH, Plaintiff, v. THE TOWN OF WEBSTER, TIMOTHY BENT, DOUGLAS C. WILLARDSON, MICHAEL SHAW, JAMES HOOVER, AND DONALD D. BOURQUE, Defendants.
CourtU.S. District Court — District of Massachusetts
Report and Recommendation

Hennessy, M.J.

This matter comes before the Court on the motion of the Town of Webster ("the Town") Timothy Bent, Douglas C. Willardson, Michael Shaw, James Hoover, and Donald D. Bourque ("Defendants") for judgment on the pleadings. [Dkt. No. 30]. Plaintiff Henry Bounphasaysonh has filed an opposition to the motion. [Dkt. No. 35]. This matter was referred to me on December 3, 2020 and is now ripe for adjudication. [Dkt. No. 38]. For the reasons that follow, I recommend the motion for judgment on the pleadings be ALLOWED in part and DENIED in part.

A. FACTUAL BACKGROUND

Plaintiff Henry Bounphasaysonh, a resident of the Town of Webster, is of Laotian descent. [Dkt. No. 12 ("Am. Compl.") ¶¶ 6, 20]. Starting in 2015, Plaintiff applied to join the Webster Police Department ("WPD"). [Id. ¶ 28]. In April 2015, he scored 96 out of 100 on the Massachusetts Civil Service exam. [Id.] In November 2015, the Massachusetts Human Resources Division ("HRD") ranked Plaintiff fourth among candidates willing to accept a position as a police officer. [Id. ¶ 29].

In Massachusetts, the civil service test score is one of the primary factors for determining eligibility for hiring. See Mass. Gen. Laws ch. 31 § 25. A police department must keep a list of priority candidates, ranked by test scores and qualifications. Id. When a police department hires a candidate "other than the qualified person whose name appears highest" on the list, that police department must submit a publicly-available statement of reasons for that decision. Id. § 27. This document is called a "bypass." Bypassed candidates may appeal to the Massachusetts Civil Service Commission ("Commission"). Id. § 2(b). In reviewing a bypass, "[t]he Commission is charged with ensuring that the system operates on 'basic merit principles.'" Massachusetts Ass'n of Minority Law Enf't Officers v. Abban, 434 Mass. 256, 259 (2001) (quoting Mass. Gen. Laws ch. 31 § 1) (alterations omitted).

A. Interviews and Bypasses for the Job

In January 2016, Defendants Bent, Shaw, and Hoover, among others, interviewed Plaintiff for a position as a police officer with the WPD. [Am. Compl. ¶ 32]. Bent later described this interview as "horrendous," and, with Shaw, recommended denying Plaintiff the position. [Id. ¶¶ 33-35]. The Town bypassed Plaintiff on January 25, 2016, giving him the following reasons:

• failed to take advantage of promotional opportunities with prior employers, UPS and CVS;
• received less than stellar performance reviews from prior employers;
• untruthfully stated he had resigned from his part-time town beach parking lot job via a telephone call when he had actually done so by text message;
• untruthfully stated he personally filled out a job application to the Town that had actually been filled out by his girlfriend; and
• gave the "worst interview ever."

[Id. ¶¶ 34, 36; Dkt. No. 32-1; Dkt. No. 12-1 at 4]. Instead, the Town hired a lower-ranked non-minority applicant. [Am. Compl. ¶ 33; Dkt. No. 32-1]. In May 2016, Plaintiff again applied to the WPD and was placed at the top of the HRD list of eligible applicants. [Am. Compl. ¶ 39]. In November 2016, Bent again notified Plaintiff that he had been bypassed in favor of a lower-ranked non-minority applicant, stating he was not called in for a second interview because of his "horrendous" first interview and purported dishonesty. [Id.]. Plaintiff alleges Willardson approved of this bypass, and Selectman Bourque "communicated his endorsement" of it. [Id. ¶¶ 41-44].

B. Civil Service Commission

In January 2017, Plaintiff appealed to the Commission contesting the Town's decision to bypass him a second time. [Id. ¶ 45]. Defendants Bent, Shaw and Hoover testified, and the parties submitted exhibits. [Dkt. No. 12-1 at 2]. While this appeal was pending, Plaintiff was again bypassed in favor of two lower-ranked non-minority applicants. [Id. ¶ 46; Dkt. No. 32-3]. Further, Plaintiff alleges that after he filed his appeal, the Town, without notifying Plaintiff of openings, hired at least five new police officers. [Id. ¶ 49]. On February 1, 2018, the Commission unanimously determined that the Town's reasons for denying Plaintiff employment seemed to be "based on false premises, unreliable hearsay, miscommunication and sloppiness," further finding that Town officials themselves had made false statements. [Id. ¶ 50; Dkt. No. 12-1 at 12-14].

In the decision, the Commission evaluated the stated reasons for Plaintiff's bypass. [Dkt. No. 12-1 at 3-4]. First, as to Plaintiff's alleged dishonesty, the Commission considered the two alleged lies plaintiff told: (1) that Plaintiff had quit a seasonal job with the Town by phone, when in reality he had texted his resignation; and (2) that Plaintiff had completed a Town job application, when his girlfriend did so for him. [Id. at 12, 14]. The Commission found that both claims of dishonestywere unfounded. The Town provided no evidence that Plaintiff ended his seasonal employment through a text. [Id. at 12-13]. As to the job application, the Commission noted Plaintiff completed separate applications in 2011 and 2012, in accordance with the Town's requirement of annual applications for seasonal jobs. [Id. at 14]. Plaintiff acknowledged that his girlfriend completed the 2011 job application; it was undisputed that Plaintiff completed the 2012 application. [Id]. However, the Commission found that it was unclear which application was produced at the interview, and Plaintiff assumed it was his most recent application. [Id. at 15].

As to the Town's finding that Plaintiff had shown a lack of initiative in his prior jobs, the Commission noted that Plaintiff worked at those jobs while completing his bachelor's degree and then looking for post-graduate employment, and found that the Town "somehow converted these reasonable, and, arguably, commendable, decisions by Mr. Bounphasaysonh into a narrative to describe Mr. Bounphasaysonh as someone who lacks initiative or a desire for personal growth." [Id. at 17].

Lastly, the Commission found a lack of evidence for assessing Plaintiff's interview as the "worst ever." [Id. at 17-18]. The interview was not recorded, and the Town failed to produce notes, rating sheets, or other evaluative materials to support the assessment. [Id. at 18]. Further, the interview panel had relied on a "scenario" question not included on the list of interview questions the Town submitted to the Commission, and the recollection of the panelists regarding this scenario question conflicted. [Id.]. The Commission ordered the Town to place Plaintiff "at the top of the next Certification issued to the Town of Webster for position of permanent intermittent police officer until such time as he is appointed or bypassed . . . [i]f Mr. Bounphasaysonh is appointed, he shall receive the same civil service seniority date as those candidates appointed from Certification No. 03783." [Id. at 18-19].

C. Plaintiff's Harm

To this date, Defendants have failed to obey the order from the Commission. [Id. ¶ 84]. Plaintiff alleges that he continues to suffer financial loss because his current occupation provides substantially less salary than he would have make as a WPD officer. [Id. ¶ 102]. He further claims emotional distress, mental suffering, and loss of experience, advancement, and personal satisfaction. [Id. ¶¶ 101, 104].

D. Racial Disparity

In addition to the bypasses of his applications, Plaintiff alleges the Town has not hired any minority police officers and that in a town whose population is 20% minority, the entire police force is Caucasian. [Am. Compl. ¶ 78]. He further alleges that the HRD list has on it several applicants, including himself, who are members of protected racial groups, but that every WPD hire was a lower-ranked white person. [Id. ¶¶ 75, 80]. Finally he asserts that discriminatory hiring is a de facto policy of the WPD, and Willardson and Bourque were aware of it "at all times." [Id. ¶ 44].1

D. Procedural History

Plaintiff filed complaints with the Massachusetts Commission Against Discrimination ("MCAD") and the Equal Employment Opportunity Commission ("EEOC") on November 30, 2018. [Id. ¶ 14]. He timely notified both agencies of his intention to file suit in federal court, and the EEOC issued a right-to-sue letter on May 2, 2019. [Id. ¶ 15]. Plaintiff filed the instant action on June 24, 2019, alleging discrimination and retaliation under Title VII, 42 U.S.C. § 2000e-2(a)and Mass. Gen. Laws. ch. 151B § 4 [Id., Counts I-VI]; discrimination, Monell liability, conspiracy, and failure to intervene by Willardson under 42 U.S.C. §1983 [Id., Counts VI-X]; and a common law claim of civil conspiracy [Id., Count XI]. Plaintiff's amended complaint incorporates all allegations into each claim. [See id., Counts I-XI]2 I therefore infer that each claim incorporates each instance of Defendants refusing to hire Plaintiff.

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(c), a party may move for judgment on the pleadings "[a]fter the pleadings are closed - but early enough not to delay trial." Fed. R. Civ. P. 12(c). A court reviews motions for judgment on the pleadings under a standard that is essentially the same as that for a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), except that "[a] Rule 12(c) motion, unlike a Rule 12(b)(6) motion, implicates the pleadings as a whole." Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54-55 (1st Cir. 2006). Facts contained in the pleadings are viewed in the light most favorable to the nonmovant, and all reasonable inferences are drawn in its favor. Zipperer v. Raytheon Co., 493 F.3d 50, 53 (1st Cir. 2007). In reviewing a motion under Rule 12(c), the court may consider "documents the...

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