Powell v. City of Pittsfield

• Citation: 221 F.Supp.2d 119
• Decision Date: 21 August 2002
• Docket Number: No. CIV.A.97-30189 MAP.,CIV.A.97-30189 MAP.
• Parties: Walter J. POWELL, Plaintiff, v. CITY OF PITTSFIELD, Edward M. Reilly, and Kathleen Alexander, Defendants.
• Court: U.S. District Court — District of Massachusetts

221 F.Supp.2d 119

Walter J. POWELL, Plaintiff, v. CITY OF PITTSFIELD, Edward M. Reilly, and Kathleen Alexander, Defendants.

No. CIV.A.97-30189 MAP.

United States District Court, D. Massachusetts.

August 21, 2002.

COPYRIGHT MATERIAL OMITTED

David P. Hoose, Howard S. Sasson, Katz, Sasson & Hoose, Springfield, MA, for Plaintiff.

Judith C. Knight, Campoli & Curley, Katherine G. Alexander, Pittsfield, MA, Daniel R. Solin, New York City, David B. Mongue, Donovan & O'Connor, Adams, MA, Nancy Frankel Pelletier, Robinson, Donovan, Madden & Barry, Springfield, MA, John A. Agostini, Pittsfield, MA, for Defendants.

MEMORANDUM OF DECISION

PONSOR, District Judge.

I. INTRODUCTION

On September 29, 1993, plaintiff Walter Powell, an African-American police officer, settled a lawsuit alleging racial discrimination against the City of Pittsfield. This settlement called for a payment of $81,000 and Powell's reinstatement to the Pittsfield police department. Following the settlement, the defendants began a campaign of obstruction, choreographed by the City Solicitor, designed to pressure or manipulate Powell into abandoning his plan to return to the police force. For more than two and a half years defendants managed to fend off plaintiff's return with excuses they knew were false, forcing Powell to cobble together ways to support himself and his family while he waited. Finally, on May 20, 1996, after Powell filed a pro se motion to vacate the 1993 Settlement Agreement, the defendants dropped their campaign and allowed him to return to work, as they had originally promised.

Our constitutional system gives every citizen the right to seek redress in the courts, as Walter Powell did, without fear that recourse to the law will make that citizen a target for retaliation, as Walter Power was here. Defendants' misconduct entitles Powell to substantial damages for his lost wages and emotional distress. In addition, the court will award punitive damages against the City Solicitor for her particularly egregious misconduct. Plaintiff will also be entitled to full reimbursement of his reasonable attorneys' fees.

The specific counts remaining against the three defendants now before the court are as follows.¹

Powell alleges (1) that defendants delayed his reinstatement in retaliation for his successful 1991 lawsuit, in violation of 42 U.S.C. § 1983 (Count II); (2) that Pittsfield exploited the fact that Powell suffered from hepatitis C as a false justification to delay his return, in violation of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Count III); (3) that the individual defendants conspired to retaliate against him, in violation of 42 U.S.C. § 1985(2) (Count IV); and (4) that the City of Pittsfield's refusal to comply with the settlement agreement constituted a common law breach of contract (Count V).

II. FINDINGS OF FACT

1. Powell is married, but was separated at the time of trial. He was born in North Carolina. He is currently 49 years old, and has children ages 30, 25, 24, 21, and 2. Powell was a medic with the 82nd Airborne Division of the United States Army, and received an honorable discharge in 1976. Before beginning his employment as a police officer, Powell worked, among other fields, with the carpenter's union.

2. In December, 1983, Powell became a police officer in North Adams. In 1985, Powell transferred to Pittsfield and began employment there. Pittsfield was a larger department, and Powell believed that there would be more room to advance. In connection with this transfer, Dr. Gordon T. Bird ("Dr.Bird"), the City's physician, performed a routine physical examination on Powell, but it was less extensive than the physical given to new recruits.

3. On March 21, 1991, Powell was fired from the Pittsfield Police Department. Powell hired an attorney, Kenneth Gogel ("Gogel"), and brought suit against Pittsfield, the former Chief of Police, the former Mayor and others, alleging racial discrimination.

4. This 1991 Complaint was offensive to the police department. It charged Captain Walter M. Boyer, the Acting Chief of Police at the time, with "calling a black man a nigger," in the presence of two police trainees. It also alleged that Captain Boyer said that he "would run his ass over if a black man stepped in front of the cruiser." In addition to Attorney Gogel, who was handling the lawsuit, Powell was represented by Attorney Michael Powers ("Powers") in Boston on a related Civil Service matter involving the City of Pittsfield.

5. In 1992, while the suit was pending, Reilly was elected as Mayor of Pittsfield. Reilly appointed Kathleen Alexander as City Solicitor. When she started, the solicitor's office was in bad shape. There was a huge number of cases, and files were on the floor. Alexander had been a general litigator and had no experience in municipal law. She was working 12-15 hours per day, 6 days a week, and had only one half-time assistant. Due to her efforts, the organization and professionalism of the Solicitor's office quickly improved.

6. Reilly also appointed Gerald Lee as Chief of Police ("Lee" or "Chief Lee"). Chief Lee had been a police officer since 1969, had worked with Powell, and admitted having a close relationship with some of the defendants that Powell sued.

7. The 1991 litigation created negative publicity. Mayor Reilly was aware of this and consequently undertook to settle Powell's suit. Reilly believed that the City could not be run well in a contentious way, and that the Powell litigation was "divisive to the City." Chief Lee agreed that the suits were divisive.

8. Reilly also believed that Powell had been unfairly fired and thought it was "fair" for Powell to get his job back. Reilly delegated the efforts to settle Powell's lawsuit to Alexander, although he remained involved to some extent. Gogel did not participate directly in the settlement negotiations (although they covered the action he was handling), which were handled by Attorney Powers on Powell's behalf and included the related Civil Service matter as well. Alexander had a troubled relationship with Attorney Powers.

9. In June of 1993, Powell wrote directly to Alexander and asked about her response to his letter threatening further suit. Alexander would have had to defend that threatened suit if Powell had followed through. Alexander was also representing the City in the related ongoing Civil Service matter in Suffolk County.

10. Several police officers had "hard feelings" against Powell as a result of his lawsuit and made these feelings known to Chief Lee, Alexander, and Reilly.

11. Powell entered into a Settlement Agreement with Pittsfield on September 29, 1993. The settlement document was signed by Powers, Powell, and Alexander. No City representative other than Alexander signed the agreement, but prior to entering the Agreement, Reilly and Alexander met with Chief Lee to discuss the requirements to be satisfied by Powell as a condition of his reinstatement. Under the terms of the Settlement Agreement, Powell agreed to:

(1) dismiss his suits with prejudice; and

(2) issue a joint media statement with Pittsfield and otherwise keep the Agreement confidential.

Pittsfield agreed to:

(1) pay Powell $81,000; and

(2) reinstate Powell subject to:

1. "certain retraining;"

2. "certain psychological counseling if and as determined by Chief Lee;"

3. "successfully undergoing a complete physical and psychological examination;" and

4. "whatever other conditions Chief Lee determines are necessary in order to facilitate Mr. Powell's reorientation into the Department for both his own interests and the best interests of the Department."

12. Powell did not understand "certain retraining" to include going to the Massachusetts Police Academy. Powell had already completed academy training in 1983 prior to joining the North Adams police department. Reilly also testified that he had no recollection, one way or the other, of the requirement that Powell attend the academy. However, Gogel testified on cross-examination that he did understand that Powell would have to re-attend the academy before reinstatement. Chief Lee testified that he contacted the Criminal Justice Training Council, and they sent him a letter recommending that Powell go to the academy in the fall of 1993.

13. On October 20, 1993, Dr. Bird examined Powell. Despite the fact that Powell had previously been a police officer, the City had requested that Powell be examined as "a new recruit," and told Dr. Bird that Powell would be re-attending the academy. Treating Powell as a new recruit required Dr. Bird to administer tests that he otherwise would not have conducted.

14. Dr. Bird was the City Physician, and had previously seen Powell two or three times for problems related to routine illness or injury.

15. Dr. Bird found Powell to be healthy and muscular, if somewhat overweight. At the time, Powell was bench pressing over 300 pounds and running five miles approximately three times a week. At this initial exam, Dr. Bird found no indication that Powell could not return to work. The lab tests, however, showed a mildly abnormal elevation in liver function.

16. When Dr. Bird informed Powell of the liver test results, Powell asked, "Are you saying there is a problem with me going back to work?" Dr. Bird replied, "No, I'm not saying that." Dr. Bird put a check on the disposition form indicating that Powell was "qualified for the position sought," but added an asterisk, noting that Powell had abnormal liver functions and needed further testing. Dr. Bird felt that the initial elevations in liver function were non-diagnostic. He also found Powell to be completely asymptomatic.

17. On the basis of further tests, taken on or about October 29, 1993, Dr. Bird recommended that Powell have a hepatitis panel test to further assess his liver function. On November 10, 1993, the panel test indicated a positive reaction for hepatitis C. This was exactly six weeks after the...