Opinion
CIVIL ACTION NO. 01-10551-GAO.
May 1, 2003.
MEMORANDUM AND ORDER
Michael Gallerani brought this nineteen-count law suit against the Town of Plymouth and six individual defendants asserting that he was improperly terminated by the Town from his position as Executive Director of the Office of Economic Development. After the defendants moved for summary judgment on all counts, Gallerani responded with a motion to amend his complaint. The proposed new complaint names only three of the original defendants and trims the claims from nineteen counts to five. By the proposed amendment, the plaintiff essentially concedes that the original claims now omitted are not viable, and that the defendants not included in the amended complaint should be dismissed from the case.
The defendants oppose the motion to amend because they say the amended complaint adds completely new theories of recovery too late in the life of the case. Further, to the extent that the proposed amended complaint reasserts theories that were presented previously, the defendants argue that they are entitled to summary judgment on those claims. For the reasons discussed below, the plaintiff's motion to amend is granted in part and denied in part, and the defendants' motion for summary judgment is denied as to the complaint as permitted to be amended.
A. Summary of Facts
Gallerani's original complaint and the defendants' motion for summary judgment together paint the following picture, stated favorably to the plaintiff. Gallerani worked for the Town of Plymouth beginning at least in 1988 when he was appointed as the Executive Secretary of the Plymouth Development and Industrial Commission. In 1991, after the Town revised its charter, the Development and Industrial Commission was renamed the Office of Economic Development and Gallerani's title was changed to Executive Director of the Office.
In 1996, Gallerani began to have difficulties with defendant Kenneth A. Tavares, who at the time was the chair of the Town's July Four Committee. Troubles began when Gallerani told Tavares that he would have to arrange adequate rest room facilities for the Fourth of July celebrations. Tavares allegedly responded by verbally upbraiding Gallerani and calling him profane names. According to Gallerani, Tavares verbally attacked him on several occasions thereafter.
In 1997 and 1998, Tavares made several attempts to have Gallerani removed from office. In May 1997, after Tavares was elected to the Board of Selectmen, he allegedly told the Board's Chairman, Roger Silva, that Gallerani should be removed from his position. Silva, however, opposed Gallerani's removal. In May 1998, Tavares spoke to Donald Jacobs, the Town Manager at the time, and again expressed his desire to have Gallerani removed. Jacobs refused to fire Gallerani and told Tavares that he felt Gallerani was doing a good job.
Thereafter, Jacobs resigned as Town Manager and defendant Eleanor Beth was appointed Town Manager. According to Gallerani, once Tavares was on the Board of Selectmen and Beth was the Town Manager, they made his job very difficult for him. He claims they excluded him from important meetings, required him to submit detailed biweekly activity reports, and verbally harassed him. At one point Beth informed Gallerani that all five members of the Board of Selectmen "hate you." Gallerani also claims that at a Town Meeting held on November 1 and 2, 1999, Tavares and other members of the Board of Selectmen made insulting statements about his job performance. At the meeting, these Board members expressed their view that the Town needed to hire outside professional consultants to help design an economic development plan because the Town's economic development staff could not handle the problems facing the Town on their own.
In response to what he perceived as harassment, Gallerani told Beth on several occasions that he was experiencing workplace stress and that he was seeking the aid of his physician and a mental health counselor. On November 7, 1999, Gallerani announced in an e-mail that he was going on medical leave. His mental health counselor, Mark Dunay, advised Beth of Gallerani's mental health issues and his need for medical leave. Before Gallerani left for his time off, he cleaned out his desk and deleted his e-mails. On November 10, 1999, Beth sent Gallerani a letter stating that because Gallerani had cleaned out his office she had concluded that he had "abandoned and effectively resigned from" his position. The letter went on to state that Beth accepted this "resignation" effective November 8, 1999. Gallerani wrote back to Beth stating that he did not intend to resign and reiterating that he was on medical leave. Skeptical about Gallerani's claimed medical condition, the Town asked Dr. Glenn Cahn to examine him. Dr. Cahn concluded that Gallerani was fit for duty and was not suffering from undue levels of stress.
Four months later, Gallerani returned to work. After he returned, he received an e-mail from Beth stating that his staff had complained about him and that further action would be taken. A meeting among Gallerani, Beth, other Town officials, and two representatives from Gallerani's union was held April 26, 2000. At the meeting, Gallerani was asked to resign because of what were said to be numerous complaints about him, although the Town officials present would not let Gallerani see copies of the complaints. When Gallerani refused to resign, Beth handed him a letter of termination, and he was escorted out of the building by a police officer.
B. Gallerani's Motion to Amend
Amendments to pleadings are to be freely allowed "when justice so requires." Fed.R.Civ.P. 15(a). But this rule does not give Gallerani anything close to an automatic right to amendment, especially when his motion to amend comes after the close of discovery and after the defendants have moved for summary judgment. See e.g., Torres-Rios v. LPS Labs., 152 F.3d 11, 16 (1st Cir. 1998) (motion to amend complaint filed after close of discovery and after defendant's motion for summary judgment properly denied). Moreover, a motion to amend may be denied if it is futile or if the defendants would suffer undue prejudice if the amendment were allowed. See Hayes v. New England Millwork Distribs., 602 F.2d 15, 19 (1st Cir. 1979) (citingFoman v. Davis, 371 U.S. 178, 182 (1962)). If a plaintiff files a motion to amend his complaint after the discovery period has ended, the burden is on him "to give a valid reason for having waited so long to file his motion." Grant v. News Group Boston, Inc., 55 F.3d 1, 6 (1st Cir. 1995).
As an explanation for his late filing of the motion to amend, Gallerani states that upon review of the defendants' motion for summary judgment he concluded "that it would be appropriate to eliminate certain defendants and a number of claims." Pl.'s Mot. to Am. ¶ 4. He also notes that he had informed the defendants and the Court at a status conference held a few days before the defendants filed their motion that he thought he might need to amend his complaint. Gallerani argues that amendment is particularly appropriate here because he is simply eliminating claims and defendants, thereby "providing a more focused explanation of his claims." Pl.'s Mot. to Am. ¶ 8. The amended complaint only names Tavares, Beth, and the Town as defendants. The five (as opposed to nineteen) claims asserted are for "Unconstitutional Discharge Based on Political Affiliation with the Silva Faction" (Counts I and III), "Unconstitutional Discharge in Violation of the Equal Protection Clause" (Counts II and IV), and "Wrongful Termination and Discrimination Against Person with Mental Illness in Violation of M.G.L. c. 151B" (Count V).
The defendants concede that the chapter 151B claim was asserted in the original complaint, but they contend that the political affiliation and equal protection claims are new. In Count I of the original complaint, Gallerani stated that the plaintiffs had deprived him of:
his rights of association and speech guaranteed under the First Amendment to [the] U.S. Constitution, his rights under the Due Process clause guaranteed by [the] Fifth and Fourteenth Amendments to the U.S. Constitution to enjoy those privileges essential to the orderly pursuit of happiness by free men, his rights to equal protection of the laws guaranteed by the Fourteenth Amendment to said Constitution.Complaint ¶ 105. Thus, it appears that an equal protection claim and a First Amendment claim are at least nominally included in the original complaint. The defendants' objection is that, aside from the general invocation of various provisions of the Constitution, the complaint did not plead facts that would justify a reader in concluding that the claims intended were those now described in more detail in the proposed amended complaint. In other words, the defendants say that while the original complaint may have been intended to assert some First Amendment claim, there is no description there of the claim set forth more particularly in the amended complaint.
It is difficult to discern what kind of First Amendment claim (if any) is asserted in the original complaint. In any event, the defendants are correct that the political affiliation theory was not included in the original complaint. Almost all of the specific factual allegations in the amended complaint supporting the assertion that there were competing political factions in the Town were not in the original complaint. See e.g., Proposed Am. Compl. ¶ 15, 21, 51, 52, 54, 55. For example, the amended complaint states for the first time that Gallerani and his father were active supporters of the "Silva Faction," and that Beth and Tavares acted jointly "to punish Gallerani for his association with the Silva Faction." Id. ¶¶ 51, 55. These allegations were not in the original complaint.
Allowing the political affiliation theory of liability to go forward would unfairly prejudice the defendants who were not reasonably put on notice by the original complaint, notwithstanding the general reference to the First Amendment, that the plaintiff was pressing such a theory. As a result, the defendants say, they have not pursued discovery concerning the theory. See also Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 933 (1st Cir. 1983) (proper to deny motion to amend complaint to add additional reason for bad faith termination when allowing motion would have required additional discovery). Delaying the trial and placing additional discovery costs on the defendants is also particularly inappropriate in light of the seeming weakness of the political affiliation theory. The amended complaint does not contain much by way of specific allegations tending to show that his problems with the defendants stemmed from the fact that he belonged to the wrong political faction. Instead, most of the specific allegations support the proposition that the defendants harbored personal dislike for Gallerani, which is not an adequate basis for a claim that he was terminated because of political affiliation.See also Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 58 (1st Cir. 1990) (mere allegation that there was a "politically charged atmosphere" at the time of the termination and that plaintiff had ties with members of the opposing political faction does not establish a First Amendment claim). It is not necessary to go so far as saying that Gallerani could not have established such a claim. It is enough to note that the weakness of his claim further supports prohibiting its late addition to the case.
Gallerani's equal protection claim stands on different footing. The only new facts that the amended complaint alleges regarding this claim are the names of three other town employees who he believes were sanctioned less severely for their work-related problems than he was. To bring a successful claim under the equal protection clause, Gallerani must demonstrate that the defendants purposely subjected him to worse treatment than other similarly situated Town employees, and that the defendants were motivated by an "intent to inhibit or punish [his] exercise of constitutional rights, or malicious or bad faith intent to injure [him]." See Rubinovitz v. Rogato, 60 F.3d 906, 910 (1st Cir. 1995). The defendants were on notice, by the original complaint, that Gallerani would intend to identify other Town employees who had been the subject of complaints but who were not terminated as a result. If the defendants had wanted to force Gallerani to name specific individuals sooner, they had options: they could have moved to dismiss his equal protection claim for failure to state a claim, to which Gallerani would likely have had to respond with more specifics, or they could have used discovery tools to prod him to reveal the information. The specific naming of individuals in the amended complaint has not introduced a new theory to the case, it has simply added some specifics to an existing one.
Accordingly, Gallerani is granted leave to file an amended complaint that asserts the claims set forth in Counts II, IV, and V of his proposed amended complaint. All other claims and defendants as they appear in the original complaint are dismissed.
C. Defendants' Motion for Summary Judgment
It remains to consider the merits of the defendants' summary judgment motion as it pertains to the claims of denial of equal protection (Counts II and IV) and of employment discrimination under chapter 151B (Count V). Through affidavits from himself and others in the Town, Gallerani has produced sufficient evidence to demonstrate the existence of a genuine issue as to a material fact concerning the equal protection claim. The affidavits would support an inference that the defendants' motivation to terminate him may have been malicious or that they had a bad faith intent to injure him. The defendants have responded that their true motivation was the legitimate concern that arose from complaints that Beth had received from Gallerani's co-workers. The jury will have to determine whose version is correct. See Rodriguez-Rios v. Cordero, 138 F.3d 22, 25 (1st Cir. 1998) (generally, motivation is a question of fact for the jury).
Section 4 of chapter 151B makes it unlawful for the Town to discharge an employee "because of his handicap. . . ." Mass. Gen. Laws ch. 151B, § 4(16). There is a material dispute between the parties as to whether Gallerani has a handicap. Assuming for present purposes that Gallerani can show that he suffered from a requisite disability, there is little in the record to support his claim that he was terminated "because of" his mental health problems. Instead, it seems that the Town did not believe that Gallerani was suffering from any mental illness, and that it terminated him either because Beth and Tavares did not like him, or because he was unable to get along with his coworkers, but not because he was disabled.
Massachusetts law has a fairly low threshold for making an initial showing of discrimination on the basis of disability. InDartt v. Browning-Ferris Indus., 691 N.E.2d 526 (Mass. 1998), the Massachusetts Supreme Judicial Court ("SJC") held that to establish a prima facie case:
a plaintiff must present credible evidence that (1) he is handicapped within the meaning of the statute; (2) he is qualified to perform the essential functions of the job with or without reasonable accommodation; (3) he was terminated or otherwise subject to an adverse action by his employer; and (4) the position he had occupied remained open and the employer sought to fill it.Id. at 528. Notably, these four criteria do not require that the plaintiff produce evidence that his handicap was the motivation for his termination. Once the plaintiff has established a prima facie case of discrimination, the defendants may counter "by articulating a lawful reason or reasons for its employment decision and producing credible evidence to show that the reason or reasons advanced were the real reasons." See Abramian v. President Fellows of Harvard Coll., 731 N.E.2d 1075, 1084 (Mass. 2000) (citations and quotations omitted). Here, the defendants have not offered much specific evidence regarding their motivations; they rely largely on their general assertions that Gallerani was terminated because of complaints by co-workers. On the current record, it cannot be said that Gallerani would be unable to show at trial that the defendants' asserted reasons for terminating him were pretextual. See id. at 1085 (after employer has shown that there were legitimate reasons for terminating the plaintiff, the plaintiff must show these reasons were merely pretextual and defendants' real motivation was to discriminate). There are genuine disputes concerning material facts, and summary judgment is not appropriate.
D. Conclusion
Gallerani's motion to amend his complaint (docket no. 35) is GRANTED to the extent that an amended complaint may be filed that asserts the claims set forth in Counts II, IV, and V of the proposed amended complaint. All defendants are dismissed except for the Town of Plymouth, Kenneth Tavares, and Eleanor Beth. Gallerani's motion to amend his complaint to add a claim for unconstitutional discharge based on his political affiliations is DENIED. The defendants' motion for summary judgment (docket no. 25) is DENIED.
It is SO ORDERED.