Roche v. Donahue, CIV.A. 96-12533-GAO.

• Decision Date: 06 November 1997
• Docket Number: No. CIV.A. 96-12533-GAO.,CIV.A. 96-12533-GAO.
• Citation: 985 F.Supp. 14
• Parties: J. Edward ROCHE, Plaintiff v. Robert DONAHUE; Thomas M. Menino, Individually and in his capacity as Mayor of the City of Boston; and the Boston Redevelopment Authority, Defendants.
• Court: U.S. District Court — District of Massachusetts

985 F.Supp. 14

J. Edward ROCHE, Plaintiff v. Robert DONAHUE; Thomas M. Menino, Individually and in his capacity as Mayor of the City of Boston; and the Boston Redevelopment Authority, Defendants.

No. CIV.A. 96-12533-GAO.

United States District Court, D. Massachusetts.

November 6, 1997.

John A. Hanrahan, Law Office of Susan A. Jackson, Boston, MA, for Plaintiff J. Edward Roche.

Gary C. Crossen, Feriale Abdullah, Foley, Hoag & Eliot, Boston, MA, for Defendant Robert Donahue.

Dawna McIntyre, City of Boston Law Dept., Boston, MA, for Defendant Thomas M. Menino.

Rebecca J. Wilson, William V. Hoch, Peabody & Arnold, Boston, MA, Dennis C. Callahan, Boston Redevelopment Authority, Boston, MA, for Defendant Boston Redevelopment Authority.

MEMORANDUM AND ORDER

O'TOOLE, District Judge.

The plaintiff J. Edward Roche brings this action against the defendant The Boston Redevelopment Authority (the "BRA"), Thomas M. Menino, individually and in his capacity as Mayor of the City of Boston, and Robert Donahue, alleging various violations of Massachusetts and federal laws in connection with the termination of Roche's employment at the BRA and his failure to be reappointed to the Boston Board of Zoning Appeals. The defendants have each moved to dismiss the complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). For the reasons stated below, the motions are granted in part and denied in part.

Background

In considering a motion to dismiss for failure to state a claim, a court must accept all well-pleaded facts as true and draw all reasonable inferences in favor of the nonmoving party. Washington Legal Found. v. Massachusetts Bar Found., 993 F.2d 962, 971 (1st Cir.1993). For the purposes of this motion, the following allegations made by the plaintiff will be assumed to be true.

Roche was employed by the BRA in various temporary positions beginning in January 1988. He was appointed to the position of Director of Special Projects/Harbor Planning as of September 18, 1989.

On May 1, 1993, Roche was appointed by Mayor Raymond L. Flynn to the Zoning Board of Appeals for the City of Boston ("Zoning Board") for a term of five years, ending May 1, 1998.

The defendant Menino was elected Mayor in a special election in 1993. Roche alleges that during the election campaign Menino personally pressured him to join his campaign, and that defendant Donahue, then volunteer campaign director for Menino, told him, "You will be with us or you will be fired—you do understand that, don't you Eddie." (Verified Complaint, ¶ 33).

After Menino's election, the Zoning Board was reconstituted pursuant to a Home Rule Petition submitted to the Legislature by Mayor Menino. The plaintiff was not reappointed to the reconstituted Board.

In May of 1994, Roche was informed that the Director of the BRA intended to submit his name to the BRA Board requesting that the Board vote to terminate his employment. Having been given the choice between voluntary resignation or a hearing before the Board that would very likely lead to his termination, Roche chose to resign.

Constructive Discharge Claims

Counts I-V of Roche's complaint all relate to the manner in which Roche's employment with the BRA came to an end. In sum, he alleges that because was not informed that he had certain seniority rights, his choice to resign from the BRA was both uninformed and "coerced." By coercing his resignation, the BRA deprived him of his constitutionally protected property interest in continued employment and violated his rights under state law said to be applicable in the event of workforce reductions. (See Verified Complaint ¶¶ 12-14).

This Court has previously held in the case of a similarly situated plaintiff that BRA employees do not enjoy seniority rights under Mass. Gen. L. ch. 121B, § 52. Lewis v. Boston Redevelopment Auth., No. 94-12103-GAO, slip op. at 9-16, 1996 WL 208473 (D.Mass. Apr.4, 1996). The failure of the BRA to inform its employees of nonexistent rights is not a violation of law and does not vitiate the voluntariness of the resignation. Regardless of whether Roche can be categorized as a permanent or temporary employee, his resignation was not a constructive discharge. Counts I, II, III, IV, and V must be dismissed for failure to state a claim.

First Amendment Claims

Roche further alleges that the BRA, Donahue, Menino, and the City of Boston all violated his rights to political association guaranteed by the First Amendment to the United States Constitution by forcing him to resign because he refused to support Menino's candidacy for Mayor (Counts VI, VII, and VIII). He relies on the well recognized proposition that "the first amendment protects nonpolicymakers from being drummed out of public service on the basis of their political affiliation or advocacy of ideas." Correa-Martinez v. Arrillaga-Belendez 903 F.2d 49, 56 (1st Cir.1990).¹

In order to withstand a motion to dismiss in a political patronage case, the plaintiff must make a "fact-specific showing that a causal connection exists linking defendants' conduct, as manifested in the adverse employment decision, to plaintiff's politics, that is, the plaintiff must have pled facts adequate to raise a plausible inference that he was subjected to discrimination based on his political affiliation or views." Correa-Martinez, 903 F.2d at 58.

Roche's complaint alleges several instances in which Menino asked him for political support and he refused. He further alleges that he was specifically told that he would lose his job as a result of his failure to support the Mayor's election. Subsequently, he was selected for termination by the Director of the BRA who was appointed by the Mayor. Because...