Diaz v. City of Somerville

• Decision Date: 01 February 2023
• Docket Number: 22-1137
• Parties: HENRY DIAZ, Plaintiff, Appellant, v. CITY OF SOMERVILLE, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

HENRY DIAZ, Plaintiff, Appellant, v. CITY OF SOMERVILLE, Defendant, Appellee.

No. 22-1137

United States Court of Appeals, First Circuit

February 1, 2023

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Jennifer C. Boal, U.S. Magistrate Judge]

James J. Heggie on brief for appellant.

Leonard H. Kesten, Michael Stefanilo, Jr., Deidre Brennan Regan, and Brody, Hardoon, Perkins &Kesten, LLP on brief for appellee.

Before Barron, Chief Judge, Selya and Kayatta, Circuit Judges.

SELYA CIRCUIT JUDGE.

Police officers occupy positions of trust and authority and, thus are understandably held to high standards of conduct. Notwithstanding those standards, plaintiff-appellant Henry Diaz, a police officer, contends that the City of Somerville (the City) wrongfully discharged him after he was involved in an off-duty altercation with a civilian and lied about the altercation during an internal investigation. Diaz, who is both Black and Hispanic, contends that his discharge was based on his race in violation of Title VII and Mass. Gen Laws ch. 151B. The district court concluded that Diaz's contentions were unsupported and entered summary judgment in favor of the City. We affirm.

I

We draw the relevant facts from the summary judgment record construing all disputed facts and reasonable inferences therefrom "in the light most flattering to the party against whom summary judgment was entered" (here, Diaz). Pleasantdale Condos., LLC v. Wakefield, 37 F.4th 728, 730 (1st Cir. 2022).

In the early morning hours of June 30, 2017, Diaz (an off-duty Somerville police officer) was driving through East Boston when he was forced to stop because a pedestrian stepped in front of his car. A confrontation ensued, during which Diaz got out of his car and repeatedly punched the pedestrian before driving away. The pedestrian reported the incident to the authorities in East Boston but did not appear at the subsequent hearing on the matter. As a result, the case was dismissed without prejudice.

The Somerville Police Department was apprised of the incident and conducted its own internal investigation. During this investigation, Diaz maintained that he had merely defended himself out of fear for his own safety. Withal, the East Boston police report, a video of the incident, and witness interviews suggested otherwise. The Somerville Police Department investigation concluded that Diaz had been the aggressor and that the incident manifested conduct unbecoming an officer. That investigation also concluded that Diaz had not been truthful during the course of the probe. And after reviewing the report of the investigation, the City's police chief recommended disciplinary action up to and including dismissal.

In November of 2017, the City held a hearing to review the police department's findings and to present a disciplinary recommendation to the mayor. Diaz was given notice of the hearing and was represented by counsel. After considering evidence presented by both the police department and Diaz, the hearing officer concurred with the police department's findings and determined that just cause existed to terminate Diaz's employment. The mayor adopted the findings of the hearing officer and fired Diaz.

Diaz appealed the termination of his employment to the Massachusetts Civil Service Commission (the Commission). See Mass. Gen. Laws ch. 31, § 43. After three days of hearings, the Commission found, by a preponderance of the evidence, that Diaz had "engaged in substantial misconduct which adversely affect[ed] the public interest" and had violated departmental rules and regulations by engaging in conduct unbecoming an officer and by prevaricating during the investigation.

The Commission proceeded to consider whether those violations justified the City's decision to terminate Diaz's employment. Diaz argued that he, as a Black Hispanic officer, had been disciplined more severely than officers of other races who had committed similar, or worse, infractions. The Commission found, however, that the proffered comparators were distinguishable because the misconduct in those cases "was not as serious," the comparators themselves were "no longer employed as police officers," and/or those matters had been resolved through settlements.

The Commission went on to consider other potentially mitigating circumstances, including Diaz's previously unblemished disciplinary record and its own preference for progressive discipline. Even after taking those matters into account, though, the Commission concluded that "the seriousness of the misconduct here, which includes pummeling a private citizen who was not posing a physical threat to Mr. Diaz, and then lying about the reasons for this misconduct, warrant termination." The Commission issued its final decision on April 11, 2019, upholding the termination of Diaz's employment as a police officer. Diaz did not seek judicial review of that decision and the appeal period has expired.

But even while the Commission's proceedings were still in progress, Diaz charted a parallel course. Just before the Commission's final hearing, he lodged a charge of discrimination with the Massachusetts Commission Against Discrimination (the MCAD). See Mass. Gen. Laws ch. 151B, § 5. In May of 2019, Diaz sued the City in a Massachusetts state court, alleging that he was discharged because of his race.^[1] See 42 U.S.C. § 2000e-2(a)(1); Mass. Gen. Laws ch. 151B. The City removed the case to the United States District Court for the District of Massachusetts. See 28 U.S.C. § 1441. After some pretrial skirmishing and the expiration of the discovery period, the City moved for summary judgment.^[2] See Fed. R. Civ. P. 56(a).

The district court held that, for purposes of Diaz's chapter 151B claim, the Commission's unappealed decision precluded Diaz from relitigating the issues of whether the City had a legitimate reason for terminating his employment and whether he had been subject to disparate treatment. And although the Title VII claim was not precluded by the Commission's decision, the district court determined that the comparators submitted by Diaz were insufficient to show that the City's stated reasons for termination were pretextual.

Based upon these rulings, the district court granted the City's motion for summary judgment. This timely appeal followed.

II

We review a district court's entry of summary judgment de novo. See Faiella v. Fed. Nat'l Mortg Ass'n, 928 F.3d 141, 145 (1st Cir. 2019). "In the course of that review, we take the facts in the light most hospitable to the nonmovant . . . and draw all reasonable inferences therefrom to that party's behoof." Gen. Hosp. Corp. v. Esoterix Genetic Lab'ys, LLC, 16 F.4th 304, 308 (1st Cir. 2021).

With this standard as our guide, we turn to Diaz's claims. We start with his state-law claim and then address his federal claim.

A

Diaz's state-law claim is a disparate-treatment claim under Mass Gen. Laws ch. 151B. That statute makes it unlawful for "an employer, by himself or his agent, because of []race [or] color, . . . to discharge from employment [an] individual." Mass.

Gen. Laws ch. 151B, § 4(1). Massachusetts courts borrow from federal law and employ a framework similar - but not identical - to that established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), when analyzing chapter 151B disparate-treatment claims in which there is no direct evidence of discrimination. See, e.g., Knight v. Avon Prods., Inc., 780 N.E.2d 1255, 1261 (Mass. 2003).

As is true in federal cases, the first step of the framework requires the plaintiff to establish a prima facie case by showing that "(1) he is a member of a [protected class]; (2) he performed his job at an acceptable level; [and] (3) he was terminated." Blare v. Husky Injection Molding Sys. Bos., Inc., 646 N.E.2d 111, 115 (Mass. 1995); see Bulwer v. Mount Auburn Hosp., 46 N.E.3d 24, 32-33 (Mass. 2016). If the plaintiff successfully negotiates that step, the second step - which is the same under both federal and state law - comes into play. At that step, the burden of production shifts to the employer. There, the employer must articulate "a legitimate, nondiscriminatory reason for its [adverse] decision." Blare, 646 N.E.2d at 115.

So long as the employer makes this modest second-step showing, the burden reverts to the plaintiff. At this final step, the Massachusetts approach diverges from the classic McDonnell Douglas framework. Massachusetts is a "pretext only jurisdiction," where a plaintiff "need only present evidence from which a reasonable jury could infer that 'the [employer's] facially proper reasons given for its action against [him] were not the real reasons'" in order to survive summary judgment. Theidon v. Harvard Univ., 948 F.3d 477, 505 (1st Cir. 2020) (first alteration in original) (quoting Bulwer, 46 N.E.3d at 33). Thus, even though a plaintiff pressing a Title VII claim must at a minimum present evidence of animus - which may be done by demonstrating that the employer's stated reason for the adverse action is so "unworthy of credence" as to suggest animus, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) - a plaintiff pressing a chapter 151B claim need only present evidence that could create the inference that the employer's stated reason for the adverse action is not the real reason.^[3] And that showing can be made by "demonstrat[ing] that similarly situated . . . employees were treated differently." Matthews v. Ocean Spray Cranberries, Inc., 686 N.E.2d 1303, 1309-10 (Mass. 1997).

In the case at hand, the district court supportably determined - and the parties do not contest - that Diaz stated a prima facie case of discrimination. The court went no further with...