Romeo v. Town of Winthrop
| Decision Date | 23 May 2023 |
| Docket Number | 22-cv-10573-DJC |
| Parties | FERRUCCIO A. ROMEO, Plaintiff, v. TOWN OF WINTHROP, TERENCE M. DELEHANTY, and AUSTIN FAISON, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Plaintiff Ferruccio A. Romeo (“Romeo”) has filed this lawsuit against Defendants Town of Winthrop (the “Town”), Terence M. Delehanty (“Delehanty”), and Austin Faison (“Faison”) (collectively “Defendants”) alleging a variety of federal and state law claims relating to his employment as a Winthrop Police Sergeant. D. 22. Defendants have moved for dismissal only as to Counts I-III, D. 23, which allege 42 U.S.C. § 1983 liability for violating Romeo's federal rights (Count I), violations of the Americans With Disabilities Act (“ADA”) (Count II), and violations of the Family and Medical Leave Act (“FMLA”) (Count III) against all Defendants, D. 22. For the reasons stated below the Court ALLOWS Defendants' partial motion to dismiss as to Count I, but only as to the claims against the Town, and Delehanty and Faison in their official capacities; Count II; and Count III. D. 23. The Court otherwise DENIES Defendants' partial motion to dismiss, D. 23, and the case will proceed on the remainder of Count I and the other remaining claims, Counts IV-IX.
A defendant may move to dismiss for a plaintiff's “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To withstand a Rule 12(b)(6) challenge, the Court must determine if the complaint “plausibly narrate[s] a claim for relief.” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (citation omitted). Reading the complaint “as a whole,” the Court must conduct a two-step, context-specific inquiry. Garda-Catalan v. United States, 734 F.3d 100, 103 (1st Cir. 2013) (citations omitted). First, the Court must perform a close reading of the claim to distinguish the factual allegations from the conclusory legal allegations contained therein. Id. (citation omitted). Factual allegations must be accepted as true, while conclusory legal conclusions are not entitled credit. Id. (citation omitted). Second, the Court must determine whether the factual allegations present a “reasonable inference that the defendant is liable for the misconduct alleged.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In sum, the complaint must provide sufficient factual allegations for the Court to find the claim “plausible on its face.” Garda-Catalan, 734 F.3d at 103 (quoting Iqbal, 556 U.S. at 678).
The following facts are drawn from Romeo's second amended complaint, D. 22, and are accepted as true for the purpose of resolving the pending motion to dismiss.
Romeo is a Winthrop Police Sergeant and served as the local union president of the Massachusetts Coalition of Police Officers Local 421-AFL-CIO for approximately ten years from December 2004 through February 2015. Id. ¶¶ 4, 9, 11. In 2015, the Town of Winthrop terminated Romeo's employment. Id. ¶ 12. After litigation before an arbitrator and the state courts, however, he was reinstated in July 2018. Id. ¶ 13.
On February 28, 2019, Romeo filed a request for intermittent leave pursuant to the FMLA to care for his aging parent and disabled spouse. Id. ¶ 14. Defendants approved that request. Id. On August 5, 2019, nineteen hours were deducted without notice from Romeo's accrued vacation hours to offset hours owed. Id. ¶ 15. Due to Romeo taking his approved intermittent FMLA leave, he was unable to attend trainings or perform other duties to offset the hours owed. Id. According to Romeo, he was not given additional time or opportunities to offset the hours owed, as customarily done by the Winthrop Police Department. Id. On August 8, 2019, he filed a grievance which was denied first by (Police Chief) Delehanty and then by (Town Manager) Faison. Id. ¶ 16.
Winthrop police officers are granted ten hours of “Time Due” for not using or abusing sick time within three consecutive months, for a total of forty hours per year. Id. ¶ 10. Pursuant to this policy, Romeo submitted a Time Due request on September 5, 2019 for not calling out sick between March 1, 2019 and August 31, 2019. Id. ¶ 17. After emailing to check the status of his request, Romeo was informed that his request was denied because he had used 294 hours of sick time between March 1, 2019 and August 29, 2019. Id. ¶ 19. Romeo contends that this was improper because he was not calling out sick, but rather using pre-approved, intermittent FMLA leave and opted to conserve his accrued sick time. Id. ¶¶ 19, 21. On December 23, 2019, he filed a grievance for not receiving Time Due. Id. ¶ 23. Faison denied that request on February 18, 2020. Id. ¶ 24. Romeo alleges that other Winthrop police officers have received Time Due, despite taking sick time. Id. ¶ 25.
On January 24, 2022, Romeo submitted a request for intermittent FMLA leave for a chronic medical condition. Id. ¶ 38. He alleges that after the request was pending for eighty-one days, the request was approved. Id.
Romeo also alleges that Defendants have interfered with his opportunities for promotions. After being reinstated in 2018, Romeo submitted a letter of interest to participate in a promotional examination for a Permanent Sergeant position. Id. ¶ 28. He also submitted a letter of interest for a Provisional Sergeant position posted by Delehanty. Id. ¶¶ 27, 29. Despite being given notice that he could participate in the promotional examination, Romeo did not receive any study materials and Defendants refused to postpone the examination. Id. ¶¶ 30, 31. Other officers submitted letters of interest in the Provisional Sergeant position and Romeo alleges that he had the most seniority, background, training, and experience of the officers who submitted letters of interest. Id. ¶ 32. Ultimately, Romeo was not offered the Provisional Sergeant position. Id. ¶ 33. Romeo also alleges that he was informed that he was not eligible to take a promotional examination for a Permanent Lieutenant position. Id. ¶ 36.
Romeo contends that Defendants have willfully violated the FMLA and interfered with his promotional opportunities because, during his tenure as the local union president, he “was a strong advocate for equal rights for female Police Officers” and “aided, counseled and assisted” female Winthrop Police Officers, Nancy Dalrymple (“Dalrymple”) and Judy Racow (“Racow”), “in pursuing successful sex discrimination complaints at the Commission Against Discrimination, Equal Employment Opportunity Commission, Massachusetts Superior Court, Massachusetts Appeals Court, and U.S. District Court of Massachusetts.” Id. ¶ 11; see id. ¶¶ 41, 43.
Romeo instituted this action on April 15, 2022, D. 1, and later amended his complaint, D. 22. Defendants moved to dismiss only Counts I-III. D. 23.
In Count I of Romeo's second amended complaint, he alleges that Defendants violated 42 U.S.C. § 1983 by discriminating against him. D. 22 ¶¶ 40-41.
A municipality is not liable under 42 U.S.C. § 1983 solely because it employs a tortfeasor. Monell v. Dep't of Soc. Servs. of the City of N.Y., 436 U.S. 658, 691 (1978). Instead, to prevail in a § 1983 action against a municipality, plaintiffs must prove that the violation of their rights occurred because of a municipality's policy or custom. Baez v. Town of Brookline, Mass. Brookline Police, 44 F.4th 79, 82 (1st Cir. 2022) (citing Monell, 436 U.S. at 694). Policies and customs can be both official or unofficial, so they “include[] the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011) (citing cases). Furthermore, under either scenario, the policy or custom “must have been the cause of and the moving force behind the deprivation.” Miller v. Kennebec Cnty., 219 F.3d 8, 12 (1st Cir. 2000) (citation and internal quotation marks omitted). Accordingly, “there are three elements to a § 1983 claim against a municipality: (1) a violation of the constitution or federal law; (2) a custom or policy of the municipality; and (3) causation between the custom or policy and the constitutional deprivation.” Off, of the Pub. Guardian v. Elliot Hosp., No. 21-cv-705-LM, 2022 WL 4104502, at *3 (D.N.H. Sept. 8, 2022).
Here, there is no plausible allegation that the Town has a formal or express policy instructing officials to retaliate against officers who advocate for the equal rights of female police officers. Romeo contends, however, that he can establish an unlawful policy or custom in the three following ways: (1) a person with final policymaking authority caused the deprivation; (2) failure to train or supervise; and (3) the existence of a custom of tolerance or acquiescence to federal rights violations. D. 27 at 10. None prove availing.
Only officials who have final policymaking authority can subject their municipal employer to § 1983 liability through their actions. St. Louis v. Praprotnik, 485 U.S 112, 127 (1988) (citation and internal quotation marks omitted). “Whether an official is a final policymaker is also a question of law.” Walden v. City of Providence, 596 F.3d 38, 55 (1st Cir. 2010) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). “This determination requires a showing that ‘a deliberate choice to follow a course of action [was] made from among various alternatives by the official or officials...
To continue reading
Request your trial