Employment actions against cities, towns and state government

"The plaintiff's perspective"

Harvey A. Schwartz

Rodgers, Powers & Schwartz

18 Tremont Street

Boston MA 02108

(617) 742-7010

Would you rather sue City Hall or General Motors?

Employment actions against government employers offer opportunities to plaintiffs not available in actions against private employers. Most employment discrimination laws that apply to private employers also apply to government employers. In addition, however, the government is restrained by a document not applicable to private employers: the United States Constitution. The use of state and federal civil rights laws in employment actions against government employers can go a long way to avoid caps on damages, to change burdens of proof, to avoid short limitations periods, and to drastically modify the status of employees-at-will.

In addition, in the rough and tumble of local politics -- often rougher and more tumbly than state or national politics -- the concept of who is an employee can become flexible enough to include appointed and elected local officials, making actions even by unpaid local officials fit within the boundaries of employment actions.

On the other hand, the arcane and seemingly metaphysical concepts that have evolved concerning liability under 42 U.S.C. § 1983 -- particularly the catchphrase that there is no respondeat superior liability against municipalities for the conduct of their employees -- create speed bumps for the inexperienced. The law controlling federal civil rights actions against local governments is complex and convoluted to the point where some -- dissenting -- Supreme Court justices have begun calling for a complete overhaul of the doctrine. This is no field into which a first time venturer should race with confidence.

What follows will be a checklist of statutory causes of action with some summaries of the leading cases. The underlying point to be made is that when a government employee -- or former employee -- wanders into your office with a tale of woe the two key words to keep in mind in considering his or her case are, first, "government" and, second, "employee." These cases can be the same as actions against private employers, but they can also be very different.

Causes of action

Massachusetts and federal employment discrimination statutes

G.L. c. 151B

The government is a "person" subject to full liability The general employment discrimination statute, c. 151B, makes it an unlawful practice for "employers" and "persons" to discriminate against "employees" or "persons" or to retaliate against them. The state and local governments are both "employers" and "persons." The statute, in c. 151B §1(1) states:

The term "person" includes ... the Commonwealth and all political subdivisions, boards, and commissions thereof.

The definition of "employer" in c. 151B §1(5) states:

The term "employer" ... shall include the Commonwealth and all political subdivisions, boards, departments and commissions thereof.

Almost all of the unlawful practices prohibited by the statute refer to actions taken either by employers or by persons. For example, c. 151B § 4(1) says it shall be an unlawful practice

For an employer, by himself or his agent, because of the race, color, religious creed, national origin, sex, sexual orientation," to discriminate in the terms or conditions of employment . . . [emphasis added]

And c. 151B § 4(4), states that it shall be an unlawful practice

For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden under this chapter or because he has filed a complaint, testified or assisted in any proceeding under section five. [emphasis added]

The "catch-all clause" of § 4(5), usually used to support actions against supervisors individually, could just as well apply to the government. That clause makes it an unlawful practice

For any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so. emphasis added]

Finally, the Commonwealth and its subdivisions are specifically prohibited from discriminating against employees on account of their age. Chapter 151B § 4(1C) makes it an unlawful practice

For the commonwealth or any of its political subdivisions, by itself or its agent, because of the age of any individual, to refuse to hire or employ or to bar or discharge from employment such individual in compensation or in terms, conditions or privileges of employment unless pursuant to any other general or special law.

The Supreme Judicial Court recently closed the door on one previously unresolved issue in employment actions against government employers: whether they were subject to punitive damages under c. 151B § 9. In Bain v. City of Springfield, 424 Mass. 758, 678 N.E.2d 155, 73 Fair Empl.Prac.Cas. (BNA) 1435 (1997), the SJC said that the Commonwealth and its subdivisions are subject to liability for punitive damages under c. 151B. "The natural and ordinary reading of these provisions is that the Commonwealth and its subdivisions are liable for punitive damages on the same basis as other 'persons' and 'employers.' Indeed, it is hard to imagine how else the Legislature should have written this rather complex and lengthy statute to include among its intended effects the result of subjecting the Commonwealth to punitive as well as actual damages." 424 Mass. at 763.

In summary, government employers are treated exactly the same under c. 151B as are private employers. Government employers can no more discriminate against their employees on account of their age, sex, race or sexual orientation than can private employers. The now familiar standards of Blare v. Husky Injection Molding Systems, 419 Mass. 437, 646 N.E.2d 111 (1995) -- in whatever interpretation your personal beliefs place on this case -- apply to discrimination actions against government employers as well as private employers. The available damages are the same, regardless of whether the employer is private or public and punitive damages are always available. Since these actions are not "tort" actions the procedural requirements of the Massachusetts Tort Claims Act, G.L. c. 258, do not apply. There is no need to serve a presentment letter on the municipal employer, under c. 258 §4. There is no $100,000 cap on liability under c. 258 §2. There is no reservation of sovereign immunity for intentional torts, pursuant to c. 258 §10(c).

Title VII, 42 U.S.C. § 2000e et. seq.

Americans With Disabilities Act, 42 U.S.C. §§ 12101-12213

Age Discrimination in Employment Act, 29 U.S.C. § 623

Local governments can be sued under federal law

Title VII, the Age Discrimination in Employment Act and the Americans with Disabilities Act all include state and local governments within their definitions of "employers" subject to liability. The ADA, 42 U.S.C. § 12111-12117, uses the same definition of "person" as does Title VII. See, ADA, 42 U.S.C. § 12111(7). Title VII first defines "person" as "one or more individuals, governments, governmental agencies, political subdivisions . . . ." 42 U.S.C. § 2000e(a). It then defines "employer" to mean "a person engaged in an industry affecting commerce who has fifteen or more employees . . . " The ADEA, at 29 U.S.C. § 630(b)(2), also includes within the definition of "employer"

a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State . . . and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States.

The United States government is specifically exempted from Title VII, the ADEA and the ADA. These statutes exclude elected officials and their high level appointees from their coverage, however. For example, the ADEA, at 29 U.S.C. § 630(f), says that the term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency, or political subdivision.

State and local governments are subject to liability under the ADA, the ADEA and Title VII to the same extent as are private employers. The same notice requirements to the Equal Employment Opportunities Commission apply and the procedures are the same.

Civil Rights statutes

The road to golden opportunities is covered with speed bumpsThe greatest difference between employment actions against government employers and against private employers is the application of civil rights statutes. The key federal civil rights statute, 42 U.S.C. § 1983, applies only when the wrongful conduct is taken "under color of state law." While there is a body of law concerning the liability of private entities acting in concert with state actors, see, Richardson v. McKnight, 117 S.Ct. 2100 (1997), except in exceptional circumstances § 1983 simply does not apply to private employers. For example, a private employer is free to fire an employee in retaliation for the employee's constitutionally protected political expression. See, Korb v. Raytheon, 410 Mass. 581, 574 N.E.2d 370 (1991). For governmental employers, however, there is a complex body of law under § 1983 concerning when an employer may take action against an employee on account of the employee's speech. See, Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 284 (1977) and Elrod v. Burns, 427 U.S. 347 (1976). In general, a government employer cannot take action against an employee on account of the employee's constitutionally protected speech.

The federal civil rights statutes, primarily 42 U.S.C. §§ 1981 and 1983, are independent of Title VII. The procedural requirements and short statutes of limitations under Title VII and c. 151B do not apply to federal civil rights act cases, which have a three year statute of limitations with no requirement to file with any agency or to exhaust any state administrative remedies. See, Alexander v. Gardner-Denver Co., 415 U.S. 36, 48 (1974) and Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459-460 (1975). Counts under Title VII, c. 151B and § 1983 can be brought in one complaint against a government employer. Jurisdiction lies in both state and federal courts.

An example of how the interplay of the employment discrimination statutes and the civil rights statutes opens doors for government employee plaintiffs not available to privately employed plaintiffs is seen in Janet Scott-Harris v. City of Fall River, rev'd sub. nom. Bogan v. Scott-Harris, 1998 WL 85313 (U.S.)(March 3, 1998). There, the plaintiff, an African-American city employee, brought claims in federal court under Title VII, alleging she was fired because of her race, and under 42 U.S.C. § 1983, asserting she was fired because she complained about racism in city government. In response to special questions the jury found that (1) the reason stated by the defendants for firing her was not their true reason, (2) that the plaintiff did not prove that the real reason was because of her race (Note that plaintiff would have prevailed under Blare but not underSt. Mary's Honor Center), and (3) that the plaintiff's constitutionally protected speech was a motivating factor in the decision to fire her. She was awarded some $236,000 in damages, plus attorneys fees, on her First Amendment claim. Had she worked for a private employer that § 1983 claim would not have been available.

The greatest difference between employment discrimination actions under c. 151B and Title VII on the one hand and under 42 U.S.C. § 1983 on the other is the difficulty of imposing liability on the governmental body itself, rather than on individual actors. Title VII liability is imposed only on the employer, whether that employer is private or public. Although plaintiffs often include a Title VII claim against a supervisor with their claim against the employer, courts increasingly frown on such claims and they are more and more likely to be rejected on summary judgment, if not in a Fed. R. Civ. P., R. 12(b)(6) motion on the complaint. It should be noted that c. 151B pretty clearly applies both against the employer and a fellow employee or supervisor, as a "person" who aids or abets the unlawful practice.

In contrast to this Title VII and c. 151B liability under respondeat superior against the employer, but probably not against the individuals responsible for the discrimination, liability under § 1983 is just the opposite. There is no respondeat superior liability against the municipality on account of conduct taken by its employees. A municipality itself is only liable for conduct taken pursuant to its official policy or by policy-making officials, or as part of a pattern or practice of conduct sanctioned by the policy makers, even though not formally enacted. This line of cases began with Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658 (1978), which held that municipalities were "persons" for purposes of 42 U.S.C. § 1983 and that municipalities could be liable for constitutional torts when "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." 436 U.S. at 690. In the nearly twenty years since the Monell decision, cases have refined the standards for determining who is a municipal policy-maker, what is municipal policy, what is municipal custom and the degree of proof necessary to meet these standards to such a fine point that some say the standard is no longer understandable. See, Board of County Commissioners of Bryan County, Oklahoma v. Brown,117 S. Ct. 1382, reh'g den. 117 S. Ct. 2472 (1997) (Breyer, J., joined by Ginsberg and Stevens, J.J. dissenting) ("But a basic legal principle that requires so many such distinctions to maintain its legal life may not deserve such longevity") and (Souter, J., joined by Stevens and Breyer, J.J., dissenting) ("I had not previously thought that there was sufficient reason to unsettle the precedent of Monell. Now it turns out, however, that Monellis hardly settled. That being so, Justice Breyer's powerful call to reexamine § 1983 municipal liability afresh finds support in the Court's own readiness to rethink the matter.")

In employment cases under § 1983 this requirement to prove that an action was taken pursuant to official policy sometimes requires a plunge into the intricacies of municipal law to determine who the ultimate policy-making official is. See, City of St. Louis v. Pratrotnik, 108 S.Ct. 915 (1988). For example, if a policeman is fired, purportedly because of his race or her sex, whether the police chief who made the decision is the ultimate policy maker in regard to police employment issues will depend on municipal ordinance and state law, in addition to local policy and practice. Unless the plaintiff can prove that the decision was made by the ultimate policy maker there will be no municipal liability, although the police chief may be held personally liable.

Section 1983 also poses some difficult problems as to personal liability of the individual decision makers. When the Scott-Harriscase, originating with a decision by the Fall River, Massachusetts City Council to eliminate an African American woman's management position, reached the Supreme Court that court recently held for the first time that members of local governing boards -- in that case the Fall River City Council -- had absolute legislative immunity from § 1983 liability, regardless of their unconstitutional motivation. Bogan v. Scott-Harris, 1998 WL 85313 (U.S.)(March 3, 1998). This decision, based on large part on the specific legislative-type powers granted to this particular city council, will certainly lead to a spate of litigation concerning immunity for local officials. Because of the intricacies of this decision it is possible that members of city councils will be absolutely immune from § 1983 liability, no matter how intentionally they violated clearly established rights, but that members of town boards of selectmen will not have this protection.

Even officials who do not have absolute immunity have a form of qualified immunity that is not available to them in Title VII actions. Qualified immunity permits a government official to obtain a dismissal of an action against him unless the plaintiff can show that the right that was violated was clearly established at the time of the violation. Denials of summary judgment motions asserting qualified immunity are usually immediately appealable, without waiting for the case to be tried. But see Swint v. Chambers County Commission, 514 U.S. 35 (1995).

Section 1983 actions involving state, rather than municipal, employees offer further complexity. States, unlike municipalities, are not "persons" subject to suit under the civil rights act. Further, the state itself has sovereign immunity under the Eleventh Amendment, which Congress did not abrogate in enacting 42 U.S.C. § 1983. Edelman v. Jordan, 415 U.S. 651 (1974). State officials can be sued personally for their conduct taken "under color of state law," but not in their official capacities, and the state, unlike a municipality, can not be sued under § 1983.

The complexity thickens. In actions against private employers under c. 151B, liability is available against both the employer and managers. In many instances the employer is liable for conduct it knew nothing about if committed by a management employee. See, College-Town of Interco v. Comm. Against Discrim., 400 Mass. 156, 508 N.E.2d 587 (1987). Plaintiffs' decisions about whether or not to name a manager personally, however, often revolve around concern that they would obtain a judgment against the manager but not the employer and they would not be able to collect anything against the individual. This is especially true in the decision whether to seek punitive damages. Juries are more likely to impose punitives against the malicious manager than against a company liable only under respondeat superior.

In actions against municipalities under § 1983, unless the employment decision was made by the municipality's policy makers, there will be no municipal liability. The malicious manager, however, can be named personally. Fears about obtaining an uncollectible judgment are diminished because c. 258 §9 permits public employers to indemnify their employees up to $1 million "arising out of any claim, action, award, compromise, settlement or judgment by reason of . . . any act or omission which constitutes a violation of the civil rights of any person under any federal or state law; if such employee or official at the time of such intentional tort or such act or omission was acting within the scope of his official duties or employment." The caveat to this potential golden cow for plaintiffs, however, is that the statute also holds that "[n]o such employee or official shall be indemnified under this section for violation of any such civil rights if he acted in a grossly negligent, willful or malicious manner." The Supreme Judicial Court has held that the words "grossly negligent, willful or malicious manner" are equivalent to the standard for punitive damages.Pinshaw v. Metropolitan District Commission, 402 Mass. 687, 697 (1988). As a result, if there is an award of punitive damages the municipality is prohibited from indemnifying the employee for anything, compensatory or punitive. Because of this plaintiffs sometimes intentionally waive any claim for punitive damages against individual defendants, fearful that a punitives award will make the entire judgement uncollectible.

Yet another nuance in this complex web of statutory protections is that while unlimited punitive damages are available against municipal employers under c. 151B, see Bain supra., and limited punitive damages are available under Title VII, municipalities are immune from liability for punitive damages, no matter how egregious their conduct, under 42 U.S.C. § 1983. See, Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981).

One additional wrinkle to this scheme is the question of who is a municipal employee. "Employee" is defined in c. 151B § 1(6) only in the negative, saying, "The term "employee" does not include any individual employed by his parents, spouse or child, or in the domestic service of any person." In the hothouse of local politics the question sometimes comes across attorneys' desks of whether members of local boards and commissions -- planning boards, zoning boards of appeal, conservation commissions, redevelopment authorities -- are "employees" of the town protected by c. 151B. These people are usually appointed, sometimes elected, and usually serve with no pay and receive no benefits. When, for example, the board of selectmen sack the members of a zoning board of appeals, is there a possible cause of action under c. 151B if the ejected officials claim they were removed because of age or sex or race, or because they opposed discrimination in employment? That is certainly an open question under c. 151B.

Under 42 U.S.C. § 1983 it is an easy one to answer. If they were removed from office under color of state law, as would virtually always be the case, they can bring a claim for violation of their constitutional rights in their removal from office. An examples of these cases is David Miller v. Town of Hull, 878 F.2d 523 (1^st Cir. 1989), cert. denied 493 U.S. 976 (1989), in which three members of a redevelopment authority successfully claimed they were removed from their unpaid, elected positions because the selectmen disagreed with their votes on certain issues. The First Circuit said in that case that votes of public officials are constitutionally protected speech. In a similar vein see Charles Stella v. Town of Tewksbury, 63 F.3d 71 (1st Cir. 1995) and 4 F.3d 53 (1st Cir. 1993), in which three members of a zoning board of appeals successfully claimed they were unconstitutionally removed from their appointed offices because the selectmen disagreed with some of their votes. Other First Amendment employment cases arise in situations where there is a change in administration and supporters of the new mayor are placed into jobs or promoted and opponents are fired or demoted. In these First Amendment employment cases the only relief is under § 1983; no protection is available under c. 151B or Title VII.

The Massachusetts Civil Rights Act, G.L. c. 12 § 11H and I

Unlike § 1983's ability to allow an end run around the procedural hurdles and short limitations period of Title VII, the state Civil Rights Act can not be used to avoid the six month filing deadline under c. 151B. Where the state employment discrimination statute applies, it preempts the field. Green v. Wyman-Gordon Co., 422 Mass. 551, 664 N.E.2d 808 (1996); Bester v. Roadway Express, Inc., 741 F.Supp. 321 (D.Mass.1990). On the other hand, where c. 151B does not apply, for example, where the employer has fewer than six employees, an employment discrimination claim can be brought under c. 12 § 11I. See, O'Connell v. Chasdi, 400 Mass. 686 511 N.E.2d 349 (1987)(sex harassment claim permitted under c. 12 § 11I).

The greatest hurdle in using c. 12 § 11I in employment actions against government employers is the basic question of whether state and local governments are "persons" subject to the statute. In Commonwealth v. Elm Medical Laboratories, 33 Mass. App. Ct. 71, 76 (1992) the Appeals Court ruled that "the Commonwealth is not a 'person' for purposes of c. 12 §§ 11H and 11I." In contrast to that decision, in Pheasant Ridge Assocs. Ltd. Partnership v. Burlington, 399 Mass. 771, 782, 506 N.E.2d 1152 (1987), involving a claim against a town under the State Civil Rights Act, the Supreme Judicial Court noted that the town made no claim to immunity, "and it may well be right in not making that claim." The court cited Owen v. Independence, 445 U.S. 622, 650, 100 S.Ct. 1398, 1415, 63 L.Ed.2d 673 (1980), in which the Supreme Court held that municipalities are "persons" subject to § 1983 liability.

CONCLUSION

Employment actions against government employers are a heads-I-win, tails-you-lose proposition for plaintiffs. All of the statutory benefits and rights an employee has against a private employer are available against public employers. In addition, the federal civil rights statutes provide additional grounds and additional claims a plaintiff can bring. The caveat to this benefit, however, is that federal civil rights liability is complex and the legal standards are constantly changing.

Employment actions against government employers

Is there liability?