Labor & Employment Law Daily Wrap Up, RETALIATION–D. Mass.: Police officer who resigned with charges pending fails to advance claim, (Jan 17, 2025)

By Nadine E. Roddy, J.D.

The officer’s intentional infliction of emotional distress (IIED) claim also failed as a matter of law.

A Boston police officer who resigned with disciplinary charges pending failed to raise material fact questions on her Title VII retaliation claim against the city and its police department, the federal district court in Massachusetts has ruled. The record contained no evidence that the department’s release of her employment records to prospective employers, per her request and with her authorization, had a retaliatory motive (Doe v. City of Boston, No. 21-11062-MJJ (D. Mass. Jan. 13, 2025)).

Allegation of rape by coworker. A former police officer (employee) of the City of Boston brought suit under Title VII against the city, the Boston Police Department (BPD), and unnamed individual officers, alleging that the defendants: (1) retaliated against her for reporting that she had been raped by a fellow officer; and (2) provided false and negative employment references to her prospective employers. She also asserted a common law IIED claim.

The summary judgment evidence showed that approximately two years into her employment with the city, the employee reported to BPD that a fellow officer had raped her while the two were attending a shooting competition in a neighboring state. Both she and the officer were placed on paid administrative leave while the matter was investigated. The officer was declared fit to return to duty two months later, but the employee remained on leave for several months, eventually returning to administrative duty. Two separate internal investigations determined that the employee and the officer had a consensual sexual relationship, and law enforcement in both states found insufficient evidence of criminal conduct.

Rule violations. Some two years later, a detective filed a complaint with the city’s Internal Affairs Department (IAD), alleging that the employee had committed various violations of BPD rules. The IAD issued a report recommending that 65 rule violations be sustained against her. The recommendation went up the chain of command, and the charges were sustained at all levels, including the BPD Commissioner. As a result, BPD determined that the appropriate discipline was termination. The employee filed an internal administrative appeal with union representation, but while the matter was pending, she resigned her employment. Her departure was classified as a “resignation with charges pending.”

Lawsuits. Thereafter, the employee filed three consecutive lawsuits against the defendants in Massachusetts state court but failed to prosecute any of them. She then filed her Title VII suit in the federal district court for the District of Columbia (DC), as some of the jobs she had sought post-termination were located there. That court, lacking personal jurisdiction over the defendants, transferred the case to the federal district court in Massachusetts. After discovery, the defendants moved for summary judgment.

Retaliation claim. It was conceded by the defendants that the employee had engaged in protected activity when she complained to BPD about the rape incident, but they contended that BPD had not taken any adverse employment action in response to that activity. The court had previously ruled that the employee was precluded from asserting her termination as an adverse action by the dismissal of her state law cases with prejudice.

The employee argued instead that BPD’s disclosure of her employment information to her prospective employers was retaliatory. The court disagreed, noting that: (1) she had expressly authorized BPD to disclose her employment information; and (2) the record contained no admissible evidence that the manner in which BPD disclosed the information differed from its usual practice or could otherwise be reasonably characterized as adverse. The employee’s uncorroborated deposition testimony that coworkers had told her of phone calls made by BPD to prospective employers was hearsay.

In addition, the employee claimed that BPD retaliated against her by providing information to the Washington Post stating that “’she had essentially been terminated from BPD.’” The record showed, however, that in response to the paper’s public records request, BPD had released records accurately reflecting that she had resigned with charges pending. Thus, no reasonable jury could find that the City’s desire to retaliate was a but-for cause of the challenged employment action.

IIED claim. The court noted its previous ruling that the IIED claim was barred by the prior state court litigation to the extent it arose under Massachusetts law, but it was allowed to the extent it arose under DC law and was based on conduct occurring after the Massachusetts cases concluded. The court then held that the employee’s evidence wholly failed to show the “extreme and outrageous conduct” required for this tort under DC law. The record reflected only that she had authorized BPD to produce her employment and disciplinary records to her prospective employers, and that BPD did so in compliance with its usual practices.

For these reasons, the court granted summary judgment for the defendants on all claims.

The case is No. 21-11062-MJJ.

Judge: Joun, M.

Attorneys: Aderson Bellegarde Francois (Georgetown University Law Center) for Jane Doe. Frank Charles Morris, Jr. (Epstein Becker & Green) for City of Boston.

Companies: City of Boston

Cases: Retaliation Discharge PublicEmployees StateLawClaims TortClaims MassachusettsNews