Summary
rejecting economic coercion theory under the MCRA where plaintiff's suspension was reversed by an arbitrator
Summary of this case from Thomas v. HarringtonOpinion
15-P-1469
02-16-2017
Paul TRACEY v. Steven CHAMPEON & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Paul Tracey, is a city of Waltham (city) police officer who successfully challenged disciplinary action imposed on him by the city. An independent arbitrator converted a fifteen-day suspension without pay into a written reprimand and awarded Tracey compensation for lost opportunity for overtime or detail work for the nine months Tracey was placed on paid administrative leave during the city's investigation. A Superior Court judge upheld the arbitrator's award, and a panel of this court affirmed the judgment. Waltham v. Waltham Police Patrol Officers' Union, Local 161 , 87 Mass. App. Ct. 1130 (2015).
This appeal is from the judgment dismissing Tracey's civil suit seeking additional damages arising from the city's investigation and disciplinary process. Because Tracey has failed to state a plausible entitlement to relief on any claim, we affirm.
The motion judge dismissed all nine counts of Tracey's complaint, pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). Tracey appeals the dismissal of four of those counts.
Background . After a member of the public filed a complaint with the Waltham police department against Tracey, then-police Chief Thomas LaCroix assigned Detective Steven Champeon to conduct an investigation. LaCroix placed Tracey on paid administrative leave pending the results of the investigation.
LaCroix died prior to the filing of Tracey's complaint. Keith MacPherson, who had been the police department's deputy chief, became the chief.
Tracey contends that LaCroix, Champeon, and Keith MacPherson attempted to "coerce him into accepting the discipline" by keeping him on paid administrative leave months after the investigation concluded. Tracey also asserts that Champeon advised Tracey to switch to his wife's health insurance, because the police department intended to put Tracey on unpaid leave for six months, at a time when Tracey's son was facing significant medical problems.
Discussion . "We review the allowance of a motion to dismiss de novo." Curtis v. Herb Chambers I-95, Inc ., 458 Mass. 674, 676 (2011). To withstand a motion to dismiss, a complaint must contain "factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief." Iannacchino v. Ford Motor Co ., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp . v. Twombly , 550 U.S. 544, 557 (2007). In reviewing the allowance of a motion to dismiss, we accept as true the factual allegations in the complaint, and any reasonable inferences that may be drawn therefrom in the plaintiff's favor. Blank v. Chelmsford Ob/Gyn, P.C ., 420 Mass. 404, 407 (1995).
Tracey also cites the standard of review set forth in Nader v. Citron , 372 Mass. 96, 98 (1977). However, the Supreme Judicial Court "retir[ed]" the Nader standard in Iannacchino , 451 Mass. at 636.
As an initial matter, we clarify the scope of the appeal. Tracey did not appeal the dismissal of any claims against the city. Also, during oral argument, Tracey stated that he was no longer pursuing Champeon, MacPherson, or LaCroix in their official capacities. We now address Tracey's claims against defendants Champeon, MacPherson, and LaCroix in their individual capacities.
As Tracey has not appealed any claim against the city, and is no longer pursuing the individual defendants in their official capacities, we need not address the city's contention that Tracey lacks standing to bring suit against the city or the officers in their official capacity.
1. Civil rights violation (count I) . Under §§ 11H and 11I of G. L. c. 12, the Massachusetts Civil Rights Act (MCRA), inserted by St. 1979, c. 801, § 1, a plaintiff may bring suit against persons who interfere, or attempt to interfere, "by threats, intimidation or coercion," with the plaintiff's rights under State or Federal law. "Coercion" under the MCRA is "the application to another of such force, either physical or moral, as to constrain him to do against his will something he would not otherwise have done." Deas v. Dempsey , 403 Mass. 468, 471 (1988), quoting from Webster's New International Dictionary 519 (2d ed. 1959). The parties agree that economic coercion standing alone may be actionable. Buster v. George W. Moore, Inc ., 438 Mass. 635, 647-648 (2003).
Tracey argues that his continued suspension after the conclusion of the investigation amounted to economic coercion that interfered with his property interest in continued employment. Although Tracey was on paid leave, he argues that he lost approximately one-third of his income due to lost overtime and detail opportunities. There is no indication in the record that Tracey was coerced or made to do anything in order to end his suspension or avoid any other consequence of the investigation. Moreover, it is unclear, and Tracey's brief does not elucidate, how the defendants' conduct could have coerced him to "accept punishment" or otherwise "do against his will something he would not otherwise have done." See Dempsey , supra . His allegations without factual support are insufficient to suggest an entitlement to relief.
The arbitrator awarded Tracey compensation for benefits lost during the paid administrative leave, as well as complete reimbursement of pay, seniority, and benefits during the fifteen-day suspension. See Waltham Police Patrol Officers' Union, Local 161 , 87 Mass. App. Ct. 1130.
In addition, regardless of whether the city has chosen to do so in the past, it has a contractually explicit managerial right to remove an officer from duty pending an investigation. Tracey's contention that he was placed on paid leave for an unusually long period of time does not alter the result. The allegations are insufficient to state a plausible claim of economic coercion under the MCRA. Tracey had, and used, a procedural remedy to challenge his investigation and discipline. See Buster , supra at 648 ("Generally, by itself, a threat to use lawful means to reach an intended result is not actionable under [G. L. c. 12,] § 11I") (citation omitted).
Finally, Tracey urges that his complaint and supporting documents sufficiently allege that this was not a "normal" internal investigation; he asserts that it was politically motivated, that Champeon should have questioned the credibility of the complainant, and that the action taken against Tracey was not warranted by the allegations. Again, Tracey has failed to allege how any of this conduct could have coerced him into acting against his will.
Tracey alleges that the investigation was politically motivated due to the involvement of a mayoral candidate. The arbitrator found, "While the odor of politics permeates this case, no political motive for the administrative actions against [Tracey] was proven." The arbitrator ultimately concluded that "the City's decision to investigate the matter was neither arbitrary nor capricious." Tracey was not a party to the arbitration, and this finding is not binding on him in this matter.
Tracey also argues that his treatment was unusual in that the city has allowed officers under investigation for serious crimes to continue working; it placed only one other officer on administrative leave when that officer was charged with felony assault. Regardless of whether the city has chosen to do so in the past, it has a contractually explicit managerial right to remove an officer from duty pending an investigation.
2. Intentional infliction of emotional distress (count VI) . The complaint alleges that Tracey's suspension and Champeon's behavior during the investigation constitute extreme and outrageous conduct causing severe emotional distress. For substantially the reasons set forth in the Superior Court judge's memorandum of decision, we conclude that Tracey has failed to plausibly state a claim for intentional infliction of emotional distress.
On appeal, Tracey emphasizes that the possibility of losing health insurance before his son's surgery was emotionally distressing. However, the complaint also indicates Tracey's wife was a Waltham police officer and that Tracey switched to her insurance immediately after receiving advice to do so. The complaint does not indicate, and Tracey does not clarify on appeal, how this plausibly caused severe distress. As such, the complaint does not contain sufficient facts plausibly suggesting an entitlement to relief. See, e.g., Beecy v. Pucciarelli , 387 Mass. 589, 596 (1982) (claim alleging intentional infliction of emotional distress properly dismissed where defendant's conduct could not be characterized as extreme and outrageous).
3. Intentional interference with advantageous relations (count VII) . We conclude that Tracey's claim for intentional interference with advantageous relations was properly dismissed. Our case law is clear that a plaintiff must suffer actual economic loss to succeed on such a claim. Tech Plus, Inc . v. Ansel , 59 Mass. App. Ct. 12, 19 (2003). Tracey's complaint merely contains conclusory assertions that the defendants interfered with his ability to secure promotional and career advancement opportunities and that Tracey "suffered damages" from such interference. Tracey fails to provide any factual allegations to support his assertion that such opportunities existed. On appeal, Tracey argues that he suffered an actual economic loss because he waited years to receive reimbursement pursuant to the arbitrator's award. We conclude that the city's alleged delay in complying with an arbitration award cannot form the basis of a claim against these defendants in their individual capacities. His claim fails accordingly.
4. Civil conspiracy (count V) . Our case law recognizes two theories of civil conspiracy: the first arises from underlying tortious conduct, and the second constitutes an independent tort. Kurker v. Hill , 44 Mass. App. Ct. 184, 188 (1998). Before the motion judge, Tracey alleged civil conspiracy stemming from tortious conduct. Tracey does not successfully allege an underlying tort, see parts 2 and 3, supra , and therefore, this theory fails. On appeal, Tracey now argues that the defendants engaged in a civil conspiracy constituting an independent tort. Such a conspiracy requires showing that the defendants exercised "some peculiar power of coercion" over Tracey through "force of numbers" that the defendants would not have had acting independently of one another. Fleming v. Dane , 304 Mass. 46, 50 (1939) (quotation omitted). See Gutierrez v. Massachusetts Bay Transp. Authy ., 437 Mass. 396, 415 (2002). Tracey has failed to allege the defendants acted in concert beyond his conclusory allegation that they had "a common design or agreement" to investigate and discipline him and disburse information about the investigation and discipline. Tracey has not plausibly alleged any concerted action by the defendants in their individual capacities. We therefore conclude that his civil conspiracy claim was properly dismissed.
The defendants note that Tracey's complaint did not allege the second type of civil conspiracy, and argue that he has waived that type of conspiracy claim on appeal. However, in Kurker , 44 Mass. App. Ct. at 188 n.3, this court rejected the argument that civil conspiracy must be pleaded with particularity. For the purposes of our discussion we assume, without finding, that Tracey has not waived the argument.
5. Conclusion . The judgment dismissing the complaint is affirmed.
The individual defendants also assert, as an alternative ground for affirming the judgment, that they are entitled to qualified immunity from Tracey's claims. Because Tracey has failed to state a plausible entitlement to relief on any claim, we need not address the defendants' qualified immunity defense.
--------
So ordered .
Judgment affirmed.