Hayes v. Mass. Bay Transp. Auth., CIVIL ACTION NO. 19-12042-WGY
| Decision Date | 27 October 2020 |
| Docket Number | CIVIL ACTION NO. 19-12042-WGY |
| Parties | Mark HAYES, Plaintiff, v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY and IXP Corporation, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Lucas J. Newbill, Law Offices of Lucas Newbill, Brookline, MA, for Plaintiff.
Marjorie S. Cooke, Barbara Gruenthal, Cooke Clancy & Gruenthal LLP, Boston, MA, for Defendant Massachusetts Bay Transportation Authority.
Peter A. Brown, Joshua M. Loveall, D'Ambrosio Brown, LLP, Boston, MA, for Defendant IXP Corporation.
YOUNG, D.J.
This case revolves around an inflammatory comment uttered in a public work setting: "She should go back to Africa." The speaker and plaintiff, Mark Hayes ("Hayes"), was referring to a protester appearing on the television at his office. A minor ruckus ensued in his office, which was the 911 call center of the Massachusetts Bay Transportation Authority ("MBTA") police department. Shortly afterward Hayes was fired, and he now sues the MBTA and his direct employer, the contractor IXP Corporation ("IXP"), for violation of his free speech rights.
Hayes himself acknowledges that his remark, heard out of context, would reasonably be taken as racist. Indeed, the "go back to Africa" epithet has a long and ugly history in this country and in Massachusetts.1 Yet Hayes maintains that his subjective intent was not racist. The protester on TV was a refugee from the Democratic Republic of Congo and naturalized United States citizen, and she had voiced a harsh and vulgar criticism of U.S. immigration policies. His comment "had nothing to do with the color of her skin," he avers, and he "would have felt the same thing" if the protester had been "from France or Sweden or Canada."2
From a legal standpoint, nothing turns on whether Hayes harbored subjective racist intent. The Court need not determine whether the comment was racist, since even offensive and bigoted statements may enjoy First Amendment protection. Nor is it the role of this Court to decide whether Hayes should have been fired for this incident. Rather, the sole question before this Court is whether Hayes’ termination violated his right of free speech. To decide this matter, Supreme Court precedent requires weighing the public employee's interest in making the comment against the employer's interest in an efficient and harmonious workplace environment. This balancing is intensely fact-bound, since it involves determining the precise nature of the conversation at issue and the true motivations of the employer who fired him.
On this record, there are triable questions of fact that preclude summary judgment on the free speech issue. First, the parties dispute whether Hayes was venting to himself (or perhaps at the TV, as statedin his deposition) or, rather, having a conversation with his colleagues in the office. His First Amendment interest in venting is negligible, but much less so if he was genuinely conversing with others. More important, First Circuit precedent suggests that it is the employer's "true motivation for firing" Hayes that matters. Mihos v. Swift, 358 F.3d 91, 103 (1st Cir. 2004). The parties dispute whether (as the MBTA and IXP assert) Hayes was fired to protect the workplace from disruption and to enforce its own policies or (as Hayes argues) in retaliation against his unpopular political speech. If in fact the motivation was the former, Hayes would likely lose; where it the latter, he would likely win. Such factfinding cannot be done at the summary judgment stage.
On September 6, 2019, Hayes filed a complaint against IXP and the MBTA in Massachusetts Superior Court. Notice Removal, Ex. C, Compl., ECF No. 1-3. The case was removed by the MBTA to this Court on October 1, 2019. ECF No. 1. Hayes filed an amended complaint on December 13, 2019. Am. Compl., ECF No. 22. On January 2, 2020, after briefing and oral argument, the Court granted in part and denied in part the defendants’ motions to dismiss. Order, ECF No. 25.
On March 23, 2020, both defendants moved for summary judgment. MBTA's Mot. Summ. J., ECF No. 38; Mem. Supp. MBTA's Mot. Summ. J. ("MBTA's Mem."), ECF No. 39; IXP's Mot. Summ. J., ECF No. 43; Mem. Supp. IXP's Mot. Summ. J. ("IXP's Mem."), ECF No. 44. Hayes opposed the motions. Pl.’s Consolidated Mem. Opp'n Mots. Summ. J. IXP & MBTA ("Opp'n), ECF No. 53. After hearing oral argument on May 14, 2020, the Court disposed of some ancillary claims and took the free speech claims under advisement. Electronic Clerk's Notes, ECF No. 61. These claims -- counts I (federal free speech), II (state free speech), and XII (wrongful termination because of protected speech) of the amended complaint -- are now the only claims pending before the Court. See Am. Compl. ¶¶ 245, 247, 272.
The MBTA contracted with IXP in 2017 to provide call-taking and dispatch services for the MBTA Police Department. Def. MBTA's Statement Undisputed Material Facts Supp. Mot. Summ. J. ("MBTA's Facts") ¶ 2, ECF No. 40. Hayes was an at-will employee hired by IXP as a dispatcher on November 6, 2017, working in the MBTA Police Department's headquarters located at 240 Southampton Street in Boston. Id. ¶¶ 3-4; Statement Facts IXP's Mot. Summ. J. ("IXP's Facts") ¶ 3, ECF No. 45.
All 911 calls that involve incidents on MBTA property anywhere in the state, along with other routine or emergency calls, are transferred to the MBTA Police Department communications center where Hayes worked. MBTA's Facts ¶ 11. The call taker processes incoming calls and relays the information via a computer aided dispatch (CAD) system to the dispatcher, who then communicates with the relevant police officers or emergency responders. Id. ¶¶ 11-13. "If the call is such an emergency that it requires an immediate response before it can be entered into the CAD system, the information is communicated verbally by the call-taker calling out to the dispatcher." Id. ¶ 13. Latoya Boman ("Boman") was another IXP employee in the same office performing dispatch functions. Id. ¶ 8. Hayes was the "main" or "No. 1" dispatcher and Boman was a call taker. Id. ¶ 10. Hayes is white and Boman is African-American. Id. ¶ 9.
Both Hayes and Boman worked the overnight shift on August 3-4, 2018. Id. ¶ 25. While at work on the morning of August 4, 2018, Hayes watched a news segment on the television in the office. Id. ¶ 27.3 Though the television was supposed to be on mute so as not to distract the employees performing emergency services, Hayes "heard every word" of the news segment. Id. ¶¶ 26-27. The segment featured Therese Patricia Okoumou, a naturalized U.S. citizen originally from the Democratic Republic of Congo, who had climbed the Statue of Liberty on July 4th to protest U.S. immigration policies. Id. ¶¶ 28, Pl.’s Resp. MBTA's Facts ¶ 32, ECF No. 56. "The broadcast showed Ms. Okoumou chanting: ‘America, you [beep], you drug addicts, you KKK, you fascist USA;’ " Hayes believed the beeped out word to be ‘motherfuckers.’ " MBTA's Facts ¶ 28; see also Aff. Lucas Newbill, Ex. 9, Dep. Mark P. Hayes ("Hayes Dep.") 54:4-19, ECF No. 55-9.
Watching this news segment, Hayes commented: "If she hates America so much, she should go back to Africa." MBTA's Facts ¶ 29. That statement (the "Statement") set in motion the ensuing events that led to this litigation. Boman remarked that Hayes’ comment was "racist," leading David Albanese ("Albanese"), an MBTA lieutenant, quickly to shut down the conversation. Id. ¶¶ 30, 36. Hayes later explained that he was "upset" by the news report and, in making the Statement, "wasn't speaking with anyone in particular" and "was not having a conversation" but rather he "needed to vent." Id. ¶ 32. By way of analogy, he compared his verbal reaction to "when you watch a football game and you're yelling at the TV." Id. The relevant portion of Hayes’ deposition reads as follows:
Hayes Dep. 117:22-118:16; see also id. at 153:24-154:14 ().4
Lt. Albanese reported the incident to the MBTA Police Department's deputy chief, Preston Horton, that same day, who quickly forwarded the report to Harry Marshall and Stephanie Brown, IXP's project and on-site managers, commenting: "FYI: action should be taken for this inappropriate comment." Aff. Preston Horton ("Horton Aff."), Ex. D., Email from Preston Horton to Stephanie Brown & Harry Marshall (Aug. 4, 2018), ECF No. 41-4; MBTA's Facts ¶¶ 40-42. Deputy Chief Horton also alerted Superintendent Richard Sullivan of the MBTA Police Department, who informed IXP management the following day that Hayes must "be removed from the schedule and not work at the MBTA police department" pending review of the incident. MBTA SOF ¶ 42. Boman also reported the incident to IXP management the next day. Id. ¶ 43. On August 6, 2018, Harry Marshall of IXP informed Deputy Chief Horton that, "after review of IXP employee statements and follow-up conversations with Dispatcher Hayes, we have deemed the incident and behavior under review to be inconsistent with IXP's Code of Conduct and established policies and egregious enough to merit dismissal from...
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