312 F.Supp.2d 117 (2004) | Cited 3 times | D. Massachusetts | April 9, 2004


This is an action against a member of the Massachusetts State Policealleging misconduct. Plaintiffs — Lecrenski Bros., Inc., DavidLecrenski and Dana Lecrenski — claim that Trooper Ronald Johnson("Defendant") violated their civil rights and discriminated against themin violation of both federal and state law. Defendant has filed a motionto dismiss pursuant to Rule 12(b)(6) and a hearing was held on March 4,2004. For the reasons which follow, the court will allow Defendant'smotion, but in part only.

The facts as alleged in the complaint are well known to the parties andwill not be fully restated here. In summary, Plaintiffs claim thatDefendant, acting under color of state law, deliberately andsystematically made it difficult for them to operate their school busservice business, resulting, among other things, in the non-renewal of at least one bus contract. Defendant's alleged campaign againstPlaintiffs was grounded in their having hired a number of employees ofRussian heritage. This led Plaintiffs to file a four-count complaint,three of which concern Defendant: civil rights violations under42 U.S.C. § 1983 ("section 1983") (Count I); civil rights violations under theMassachusetts Civil Rights Act ("MCRA") and Mass. Gen. L. ch. 93, §102 (Count II); and employment discrimination under section 4 of Mass.Gen. L. ch. 151B ("chapter 151B") (Count IV).1

In due course, Defendant filed the instant Rule 12(b)(6) motion todismiss. Defendant's motion asserts that Plaintiffs not only lackstanding for a few of the claims, but that the complaint, as a whole,fails to state claims upon which relief may be granted.


Dismissal is warranted under Rule 12(b)(6) where there is a "failure tostate a claim upon which relief can be granted." Fed.R.Civ.P.12(b)(6); see Wagner v. Devine, 122 F.3d 53, 55 (1st Cir. 1997). Inanalyzing such a motion, the court must accept the allegations of thecomplaint as true, drawing all reasonable inferences in favor of theplaintiffs. See Albright v. Oliver, 510 U.S. 266, 268 (1994). Atbottom, a cause of action may be dismissed if the plaintiffs cannotprove, beyond a doubt, that facts supporting the claim entitle them torelief. See Conley v. Gibson, 355 U.S. 41, 45- 46 (1957); Roeder v. Alpha Indus., Inc., 814 F.2d 22, 25(1st Cir. 1987).2


For the reasons which follow, the court will allow Defendant's motioninsofar as Count I of the complaint relies on the MassachusettsConstitution and insofar as Count II attempts to state a claim underMass. Gen. L. ch. 93, § 102. The court will also allow the motion asto the entirety of Count IV, the employment discrimination claim. In allother respects, the motion will be denied.

A. Count I

As a threshold matter, Defendant seeks to dismiss so much of Count I,the section 1983 claim, which seeks relief for violations of rights underthe Massachusetts Constitution. As the parties are well aware, section1983 provides a remedy "against all forms of official violation offederally protected rights." Monell v. New York City Dep't of SocialServs., 436 U.S. 658, 700-01 (1978) (emphasis added). It does notprovide a remedy for a violation of a right based on a stateconstitution. See Pesce v. J. Sterling Motion High Sch.,830 F.2d 789, 795 (7th Cir. 1987); Magnuson v. Cassarella,812 F. Supp. 824, 830 n.5 (N.D. Ill. 1992). Accordingly, without oppositionfrom Plaintiffs, Defendant's motion will be allowed in this respect.

With regard to the remainder of Count I, Defendant argues that, atbest, Plaintiffs' claim concerns the loss of a private contract and thatsuch loss does not have the magnitude of a federally protected right.Moreover, Defendant argues, even if the complaint is construed to allegea violation of procedural due process, it was one of the school districtsfor which Plaintiffs operated, not Defendant, which made the decision notto renew Plaintiffs' bus contract.

Defendant's argument to the contrary, the court believes that, forpurposes of Rule 12(b)(6), Plaintiffs have adequately pled a claim inCount I for violations of their federal constitutional rights. Forexample, Plaintiffs allege that Defendant's actions "were performedwillfully and knowingly and were motivated by his prejudice againstRussian immigrants, and as a result thereof, the Plaintiffs havesuffered economic and other damages, and have been denied theirConstitutional rights to employ persons regardless of their race ornational origin." (Complaint ¶ 15 (emphasis added). See alsoComplaint ¶ 20 ("As a direct and proximate result of the falseaccusations of [Defendant] made under color of law, the plaintiffs weredeprived of rights guaranteed by the Constitution of the UnitedStates . . . and have incurred economic damages.").) To be sure,Plaintiffs will have to articulate those rights much more precisely asthe litigation unfolds. For the moment, however, under the authority ofLeatherman v. Tarrant County Narcotics Intelligence & CoordinationUnit, 507 U.S. 163 (1993) (describing liberal notice pleading standardsfor section 1983 claims), the court deems Plaintiffs' section 1983 allegations to be sufficient. As a result,except for the alleged claim under the Massachusetts Constitution, thecourt will deny Defendant's motion with respect to Count I.

B. Count II

Preliminarily, the court will dismiss, on standing grounds, that partof Count II which alleges a violation of Mass. Gen. L. ch. 93, § 102,the state statute guaranteeing "[a]ll persons within the commonwealth,regardless of sex, race, color, creed or national origin, . . . thesame rights enjoyed by white male citizens, to make and enforcecontracts. . . ." Plaintiffs' argument to the contrary, they have notalleged that Defendant discriminated against them on the basis of theirrace or national origin. Rather, they contend that Defendant'sdiscrimination against their Russian drivers indirectly caused themharm. "Such an allegation can hardly amount to `discrimination in theenforcement' of the plaintiffs' contracts . . . or a denial of thesame contractual benefits enjoyed by white male [citizens]." HarvardLaw Sch. Coalition for Civil Rights v. Pres. & Fellows of HarvardColl., 595 N.E.2d 316, 319 (Mass. 1992). See also Ellis v.Safety Ins. Co., 672 N.E.2d 979, 987 (Mass. App. Ct. 1996)(similar).

Nonetheless, the court concludes that Plaintiffs have adequatelyalleged a claim in Count II under the MCRA. To establish an MCRA claim, aplaintiff must prove that his or her exercise or enjoyment of rightssecured by the constitution or laws of either the United States orMassachusetts has been interfered with by threats, intimidation or coercion. See Mass. Gen. L. ch. 12, §§ 11H and 11I.3 Whilethe MCRA is the state "counterpart" to section 1983 and is basically"coextensive with" the federal statute, see Chilson v. Polo RalphLauren Retail Corp., 11 F. Supp.2d 153, 158 (D. Mass. 1998);Batchelder v. Allied Stores Corp., 473 N.E.2d 1128, 1130-31(Mass. 1985), there are some differences. For example, to succeed on anMCRA claim, a plaintiff must show that the derogation of rights occurred"by threats, intimidation or coercion." Bally v. NortheasternUniv., 532 N.E.2d 49, 52 (Mass. 1989). Here, Defendant argues,Plaintiffs have not sufficiently alleged such "threats, intimidation, orcoercion."

In order for "threats, intimidation, or coercion" to be established,the Supreme Judicial Court normally requires "a showing of an `actual orpotential physical confrontation accompanied by a threat of harm.'"Carvalho v. Town of Westport, 140 F. Supp.2d 95, 101 (D. Mass. 2001) (quoting Planned ParenthoodLeague of Mass., Inc. v. Blake, 631 N.E.2d 985, 989 n.8 (Mass.1994)). However, as the SJC more recently explained, "coercion" under theMCRA is "not limited . . . to actual or attempted physical force."Buster v. George W. Moore, Inc., 783 N.E.2d 399, 410 (Mass.2003). Rather, "in certain circumstances, economic coercion, standingalone, may be actionable under the act." Id. at 411. See alsoid. at 410 ("For example, we have suggested that coercion may befound where one party deprives another of rights due under a contract.").

Economic coercion, at the very least, can be implied in the instantcomplaint. (See, e.g., Complaint ¶¶ 15 and 20 (quoted above). See alsoid. ¶ 11 ("As a result of the false accusations brought by[Defendant], Lecrenski Brothers, Inc. lost a contract. . . .").) Therealso might exist instances of actual or attempted physical force. (See,e.g., id. ¶ 23 ("As a . . . result of [Defendant's]actions . . ., [P]laintiffs were subjected to retaliatory treatment,intimidation, threats and coercion for the purpose of discouraging themfrom hiring and retaining employees who were recent immigrants from theformer Soviet Union.").) Thus, for essentially the same notice pleadingreasons this court applied to the section 1983 cause of action, the courtdeems the MCRA claim in Count II sufficiently pled. See Leatherman, 507U.S. at 169; Fed.R.Civ.P. 8(a) (pleading need only set forth "a shortand plain statement of the claim showing that the pleader is entitled torelief"). Cf. Karetnikova v. Trustees of Emerson College,725 F. Supp. 73, 77-78 (D. Mass. 1989) (noting that actions which result in "cancellation of a future economic relationship" would appear to be"sufficient to constitute coercion" and, therefore, allowing MCRA claimto survive Rule 8(a)'s liberal pleading hurdle).

To be sure, the court is aware of at least one pre-Leathermandecision by the SJC which would appear to place a heightened pleadingburden on state MCRA plaintiffs. In Hobson v. McLean Hosp.Corp., 522 N.E.2d 975 (Mass. 1988), the SJC dismissed an MCRA claimwhich consisted of "conclusory allegations, amounting to a summarizationof G.L. c. 12, §§ 11H, 11I." Id. at 978. Also there, "[t]heplaintiff [did] not identify, and [the court could] not discern, whatright guaranteed to her by Massachusetts law [was] concerned." Id.Hobson has been applied by both Chief Judge William G. Young,Canney v. City of Chelsea, 925 F. Supp. 58, 70 (D. Mass. 1996)(citing Hobson for proposition that "mere recitals of boilerplate claimsof `threats, intimidation, or coercion' do not meet the requirements ofMassachusetts civil rights pleading"), and, indirectly, by this court ina situation where, unlike here, there was no allegation that thedefendant "had any contact whatsoever with Plaintiffs," Lorenzo v.Gallant, 2002 WL 31833751, at *5-6 (D. Mass. Oct. 28) (applyingCanney which, in turn, applied Hobson) (rep't and rec.adopted Dec. 16, 2002).

That being said, this court is not convinced that it should applyHobson's state-law based heightened pleading standard to MCRA claimsbrought in this federal forum. The First Circuit Court of Appealsrecently reminded the lower courts that"Leatherman . . . emphasiz[es] the general primacy in federalcourt of Rule 8 (notice pleading) and 9(b) (heightened pleading only for fraud and mistake)."Andresen v. Diorio, 349 F.3d 8, 17 (1st Cir. 2003). See alsoSwierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). "[U]nderstandard Erie doctrine," the court explained, "state pleadingrequirements, so far as they are concerned with the degree of detail tobe alleged, are irrelevant in federal court even as to claims arisingunder state law." Andresen, 349 F.3d at 17 (citing, inter alia, Hannav. Plumer, 380 U.S. 460, 466-74 (1965)).4 See also Jacksonv. East Bay Hosp., 980 F. Supp. 1341, 1352 (N.D. Cal. 1997)("Leatherman holds that a federal court may not apply a statelaw which requires `heightened pleading' in [state] civil rightscases. . . ."); Medley v. Turner, 1993 WL 96112, at *1 (N.D.III. Mar. 31, 1993) ("Even though the claim at issue is grounded in statelaw, the standards prescribed by the Rules, rather than state pleadingprinciples, apply.") (citing Hanna and Leatherman).

In any event, Plaintiffs' MCRA claim is sufficiently pled underRule 8(a).5 It may be that Plaintiffs will not ultimately be able to prove what theyclaim, "but a threshold dismissal is simply not in order." Medley, 1993WL 96112, at *1. Accordingly, except for the alleged claim under Mass.Gen. L. ch. 93, § 102, the court will deny Defendant's motion withrespect to Count II.

C. Count IV

Finally, the court agrees with Defendant that Plaintiffs lack standingto pursue Count IV, Plaintiffs' chapter 151B cause of action. Accordingto the SJC, the "central focus" of section 4 of chapter 151B, which isincluded within the statutes governing labor and industries, is toprotect employees from employers' discriminatory employment practices: The authority to bring an action for a statutory violation is determined with reference to the context, subject matter, and area of concern of the statute. General Laws c. 151B, § 4, prohibits employers from engaging in discriminatory employment practices against certain protected classes. Chapter 151B, § 4(1) seeks the removal of artificial, arbitrary, and unnecessary barriers to full participation in the workplace. Section 9 of G.L. c. 151B, grants to "[a]ny person claiming to be aggrieved" by such a discriminatory practice standing to bring a civil action for damages or injunctive relief or both. The central focus of inquiry is whether the employer penalizes some employees or prospective employees because of their race, color, religion, sex, or national origin. Although the Commonwealth's employment discrimination law, G.L. c. 151B, affects a broad array of employment practices we will not assume that the Legislature intended to cover relationships outside the traditional common law employer-employee relationship. To qualify as a "person aggrieved," a person must allege substantial injury as the direct result of the action complained of. It is clear from the statute and case law that an individual has to be within the employment relationship and has to have suffered injury as a result of a prohibited practice in order to have a cause of action under § 9.Harvard Law Sch. Coalition, 595 N.E.2d at 318 (citations, footnoteand further internal quotation marks omitted; emphasis added). See alsoCariglia v. Hertz Equip. Rental Corp., — F.3d —, slip op. at12, 2004 WL 720250, at *5 (1st Cir. Apr. 5, 2004) (noting SJC's"instruction that the `primary purposes' of Mass. Gen. L. ch. 151B §4 `are to protect citizens of the Commonwealth from adverse employmentdecisions . . . and to discourage, and punish unlawful discriminationin the work place.'") (quoting Knight v. Avon Prods., Inc.,780 N.E.2d 1255, 1264 (Mass. 2003)). As Defendant points out, he is not beingsued within the context of an employment relationship.

To be sure, Plaintiffs emphasize the language in subsection 4A whichprohibits "any person to coerce, intimidate, threaten or interfere withanother person in the exercise or enjoyment of any right granted orprotected by this chapter. . . ." Mass. Gen. L. ch. 151B, § 4(4A)(emphasis added). Similarly, subsection 5 bars "any person, whether anemployer or employee or not, to aid, abet, incite, compel or coerce thedoing of any of the acts forbidden under the chapter or to attempt to doso." Id., § 4(5) (emphasis added). Nonetheless, neithersubsection has been interpreted by Massachusetts courts to extendstanding to the employer of the aggrieved party.

Subsection 4A has consistently been construed as prohibitinginterference with, or retaliation against, an aggrieved employee whopursues relief through the Massachusetts Commission AgainstDiscrimination ("MCAD"), even though the provision never uses the word"retaliation." See, e.g., Sahli v. Bull HN Info. Sys., Inc., 774 N.E.2d 1085, 1089 (Mass. 2002); Pontremoli v. Spaulding Rehab.Hosp., 747 N.E.2d 1261, 1264 (Mass. App. Ct. 2001) (citing Bain v.Springfield, 678 N.E.2d 155, 160 (Mass. 1997)). See also Blockel v. J. C.Penney Co., 337 F.3d 17, 27 (1st Cir. 2003). While the perpetrator doesnot have to be the employer (and could instead be a third party), thereis no evidence that the statute was intended to provide standing tothose, like Plaintiffs here, who employ the aggrieved employee.6

Likewise, subsection 5 has principally been invoked by employeesagainst co-workers or supervisors who, while not the actual employer ofthe aggrieved party, took part in or abetted discriminatory acts. SeeChapin v. Univ. of Mass., 977 F. Supp. 72, 78 (D. Mass. 1997) (holdingthat non-action of a supervisor who is aware of sexual harassment isaiding and abetting in violation of subsection 5); Morehouse v. BerkshireGas Co., 989 F. Supp. 54,61 (D. Mass 1997) (co-workers could be suedindividually under subsections 4A and 5 for harassing female employee).Cf. Ligenza v. Genesis Health Ventures of Mass., Inc., 995 F. Supp. 226,233 (D. Mass 1998) (supervisors not liable under subsection 5 for aidingand abetting discrimination that did not occur). Once again, however,Plaintiffs are not such "aggrieved" parties here.

In short, the court is unwilling to stretch chapter 151B in the mannerPlaintiffs seek, particularly in a way so far removed from theestablished employment discrimination focus of the statute. See Martel v.Stafford, 992 F.2d 1244, 1247 (1st Cir. 1993) (cautioning plaintiffswho choose a federal forum to "not expect the federal court to steerstate law into unprecedented configurations") (citations omitted). Thecourt has not been provided — nor has it found any — case lawwhere the statutory provisions upon which Plaintiffs rely have beenextended to provide standing to the employers of parties affected by thediscrimination of a third party. Accordingly, the court will dismissCount IV.


For the reasons stated, Defendant's motion is ALLOWED with regard toCount IV, so much of Count I that seeks to pursue a 1983 claim via theMassachusetts Constitution, and so much of Count II that seeks to state aclaim under Mass. Gen. L. ch. 93, § 102. In all other respects,Defendant's motion is DENIED.


1. Count III was targeted solely at a co-defendant — theCommonwealth of Massachusetts, acting by and through its Department ofPublic Safety — but Plaintiffs voluntarily dismissed that cause ofaction.

2. Although Defendant's "standing" argument might conceivably fallunder the rubric of Rule 12(b)(1), which concerns subject matterjurisdiction, the court will follow the parties' lead and analyze theentire motion, including the standing argument, as arising underRule 12(b)(6). See United States v. AVX Corp., 962 F.2d 108, 114 n.6(1st Cir. 1992) (considering standing argument pursuant to Rule 12(b)(6),as parties did, but recognizing "that Rule 12(b)(1) arguably provides acloser analogy"). See also McInnis-Misenor v. Me. Med. Ctr.,319 F.3d 63, 67 (1st Cir. 2003) (evaluating defendant's standing argumentpursuant to Rule 12(b)(6)).

3. In pertinent part, sections 11H and 11I state as follows: [11 H:] Whenever any person or persons, whether or not acting under color of law, interfere by threats, intimidation, or coercion, with the exercise and enjoyment by any other person or persons of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, the attorney general may bring a civil action for injunctive or other appropriate equitable relief in order to protect the peaceable exercise or enjoyment of the right or rights secured. [11 I:] Any person whose exercise or enjoyment of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, has been interfered with, or attempted to interfere with, as described in section 11 H, may institute and prosecute in his own name and on his own behalf a civil action for injunctive and other appropriate equitable relief as provided for in said section, including the award of compensatory money damages.

4. The First Circuit made these statements in the context of adefamation claim which, under Massachusetts law, must also meet a"heightened pleading standard," i.e., "the complaint [must] include theprecise wording of at least one sentence of the alleged defamatorystatements and the means and approximate dates of publication." Andresen,349 F.3d at 16-17 (citations and internal quotation marks omitted). Thiscourt once applied those standards as the main justification forrecommending dismissal of a defamation claim brought in federal court.See Kibbe v. Potter, 196 F. Supp.2d 48, 74-75 (D. Mass. 2002).In post-Andresen hindsight, that application was apparently wrong, butfortunately rectified by District Judge Michael A. Ponsor who affirmedthe dismissal on an entirely different ground. See id. at53.

5. In the court's view, the MCRA claim would also survive, albeitbarely, under Hobson's heightened pleading standard. For one thing, asindicated, the complaint alleges somewhat more than a boilerplate summaryof the "threats, intimidation, or coercion" requirement. Moreover, unlikethe situation in Hobson, federal constitutional rights (e.g., firstamendment or procedural due process rights) can be readily discerned fromthe complaint's substantive allegations.

6. Granted, the MCAD itself has found a third party, unrelated tothe employment relationship, liable for discrimination under subsection4A. See Erewa v. Reis, Docket No. 93-BEM-2249, cited at 26M.L.W. 1392 (1998). Even there, however, it was the employee who broughtthe claim, not the employer.

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