COMMONWEALTH OF MASSACHUSETTS
`
`66
`
`
`
`
`
`
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`HAMPSHIRE, SS
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`PATRICK BUCHANAN AND
`TODD DODGE,
`
`
`
`
`
`
`
`
`Plaintiffs,
`
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`
`TOWN OF GREENFIELD AND
`ROBERT HAIGH
`
`
`
`
`
`
`
`
`Defendants.
`
`
`
`
`
`
`
`
`
`
`REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO
`PRECLUDE IRRELEVANT TESTIMONY CONCERNING
`NON- COMPARATOR GREENFIELD OFFICERS
`
`
`SUPERIOR COURT DEPARTMENT
` C.A. NO: 1780CV00033
`
`Superior Court - Hampshire
`
`4/5/2022
`
`
`
`
`The Defendants reply to the Plaintiffs’ Opposition to the Defendants’ motion in limine to
`
`preclude irrelevant testimony concerning non-comparator Greenfield Officers. The Plaintiff’s
`
`motion is rife with misstatements of the evidence and misleading characterizations of the law.
`
`Patrick Buchanan was the only Black member of the Greenfield Police Department. He
`
`was also the Greenfield Police Department’s first ever Black sergeant. Chief Haigh exercised his
`
`discretion and promoted Buchanan to provisional sergeant on January 13, 2015, and he held that
`
`position for two weeks until he was demoted on January 31, 2015. The Chief again promoted to
`
`provisional sergeant on October 16, 2017, where he served for 16 months until multiple
`
`subordinates complained about his bullying behavior. It was solely in the Chief’s discretion
`
`whether to promote Buchanan to provisional sergeant. (compare Plainitff’s representations that
`
`
`
`1
`
`

`

`the Chief “favor[ed] white employees and sabotage[ed] the career of Buchanan who should have
`
`become the Defendants’ first ever black Sergeant” (Plf’s Opp. at p. 2); “Buchanan…has
`
`asserted…claims arising from GPD’s steadfast refusal and failure to promote him to the rank of
`
`Sergeant” (Plf’s Opp. at p. (4); “…GPD had achieved its goal of sabotaging Buchanan’s promotion
`
`to becoming the first [B]lack Sergeant in the [D]epartment’s history.” (Plf’s Opp. at at 5). To the
`
`extent that the Plaintiff seeks to try this case under a theory that because there are no other Black
`
`members of the Department the Greenfield Police Department is racist, he should be precluded
`
`from doing so. In addition, to the extent the Plaintiff argues that his demotion in January 2015 had
`
`any impact on the third party Assessment Center’s ranking of him in third place, he is wrong.
`
`
`
`Todd Dodge brings a single claim for violation of the whistleblower statute. The
`
`Defendants expect that this court will issue a Directed Verdict in favor of the Defendants on that
`
`claim. In order to satisfy the whistleblower statute, Dodge must show that he complained, in
`
`writing, about the discriminatory conduct.1 The Defendants have repeatedly pointed out to the
`
`Plaintiff’s attorney that Dodge did not blow any whistle—in writing or otherwise. Indeed, he
`
`testified that he would never have objected to such unlawful behavior. The court should not admit
`
`comparator evidence in order to compare Dodge to anyone because Dodge has adduced no
`
`evidence to support his claim.
`
`
`
`Plaintiff Buchanan seeks to compare his discipline with the treatment of Chief Haigh, Todd
`
`Clark, Jimmy, Rode, and Dan McCarthy. The Defendants have already addressed many of the
`
`
`1 The whistleblower statute protects from employer retaliation an employee who “[d]iscloses, or threatens
`to disclose to a supervisor or to a public body an activity, policy or practice of the employer ... that the employee
`reasonably believes is in violation of a law.” G.L. c. 149 § 185(b)(1). An employee may not bring a whistleblower
`claim on this basis, however, unless he “has [first] brought the activity, policy or practice in violation of a law ...
`to the attention of a supervisor of the employee by written notice and has afforded the employer a reasonable
`opportunity to correct the activity, policy or practice.” G.L. c. 149 § 185(c)(1). "This provision is interpreted to
`require that an employee give “unequivocal notice” of the questioned practice to the employer before taking the
`complaint to an outside authority.” Delaney v. Town of Abington, 211 F. Supp. 3d 397, 402 (D. Mass. 2016), aff'd, 890
`F.3d 1 (1st Cir. 2018); Dirrane v. Brookline Police Dep't, 315 F.3d 65, 73 (1st Cir.2002).
`
`
`
`2
`
`

`

`arguments raised in the Plaintiff’s Opposition.2 Some of the arguments raised with respect to
`
`McCarthy, however, warrant rebutting directly.
`
`First, the Plaintiff seeks to admit evidence that McCarthy’s father violated ethical rules in
`
`2002 and Sgt. McCarthy benefitted from that violation (Plf’s Opp. p. 14-15); this proposition is
`
`plainly inappropriate and prohibited by the evidentiary rules. The “sins of our father’s” theory has
`
`no place in a court of law.
`
`Next, the Plainitff seeks to admit into evidence that McCarthy co-owned a stand-alone
`
`garage where a confederate flag was hanging on an interior wall and may have been partially
`
`visible from the street. The Plaintiff states, “The Confederate flag is relevant and admissible as to
`
`McCarthy’s credibility and the issue of whether he and others at GPD harbored improper racial
`
`[sic].” (Plf’s Opp. at p. 16). The stated purpose of this so-called evidence is absolutely
`
`impermissible.
`
`
`
`The Plaintiffs cite to Commonwealth v. Jackson 240 A. 3d 119, 25 (Pa. Super. Ct. 2020)
`
`for the proposition that “Courts have found that ‘ownership of a Confederate flag was relevant for
`
`the trial judge, as factfinder, to assess whether [the flag’s owner or supporter] harbored imporper
`
`racial bias.” That is a mischaracterization of the holding in that case. The quotation is taken from
`
`one court (not “courts”) and is dictum. In that criminal case (not a civil case), the defendant was
`
`prosecuted for his involvement in a large drug trafficking operation. The prosecution presented
`
`testimony of a cooperating witness who bought mephamphetamine from the defendant. The trial
`
`judge did not permit the defense attorney to inquire into whether this cooperating witness owned
`
`
`2 It does bear noting that in its Opposition, the Plaintiff falsely claims Chief Haigh, “disclos[ed] confidential
`information relating to [a criminal suspect], imposed a sanction on the complainant, job loss, in addition to the already
`pending OUI charge that the Chief was not authorized to impose.” (Plf Opp. at p. 9) This is a blatant
`mischaracterization of the record evidence. The Chief did not disclose confidential information as statements by a
`criminal defendant are not confidential. The Chief did not impose a sanction of job loss on the criminal suspect—her
`employer did.
`
`
`
`3
`
`

`

`a Confederate flag, which, the attorney argued, would have shown that this person harbored
`
`improper racial bias against the criminal defendant, who was a person of color. The defendant was
`
`convicted. The Pennsylvania Appeals Court upheld the conviction, and in dicta held it was error
`
`not to permit the criminal defendant to cross-examine the witness about his bias against the
`
`defendant, but that the error was not reversible.
`
`
`
`This criminal case from Pennsylvania does little to help the Plaintiff’s civil lawsuit. The
`
`Plaintiff has brought this lawsuit alleging the Chief’s failure to promote him was discriminatory.
`
`McCarthy is not a defendant. Further, McCarthy played a minor role in bringing a possible
`
`violation of the rules to the Chief’s attention, after another officer informed him of it. The issue of
`
`whether McCarthy owns a confederate flag and whether that flag is kept in a garage that McCarthy
`
`co-owns is irrelevant to whether the Chief harbored impermissible racial bias. This is precisely the
`
`sort of prejudicial evidence that is intended to inflame the jury; it serves no other basis.
`
`See Brunner v. Stone & Webster Eng'g Corp., 413 Mass. 698, 704–05, (1992) quoting Medina–
`
`Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 10 (1st Cir.1990) (“The biases of one who
`
`neither makes nor influences the challenged personnel decisions are not probative in an
`
`employment discrimination case”); see also Bennett v. Saint–Gobain Corp., 507 F.3d 23, 31 (1st
`
`Cir.2007), quoting from Velazquez–Fernandez v. NCE Foods, Inc., 476 F.3d 6, 11 (1st Cir.2007)
`
`(“[T]he discriminatory intent of which [an employee] complains must be traceable to the person
`
`or person who made the decision to fire him.... When assessing a claim of pretext in an employment
`
`discrimination case, an inquiring court must focus on the motivations and perceptions of the actual
`
`decisionmaker”).
`
`
`
`The Plaintiff also relies on Bulwer v. Mount Auburn Hospital, 473 Mass. 672 (2016) as
`
`support for the admissibility of the Confederate flag in a private garage co-owned by a non-
`
`
`
`4
`
`

`

`defendant. In that case, the plaintiff, a Black male of African descent and Belizean national origin,
`
`survived summary judgment as to his employment discrimination claim where the evidence was,
`
`inter alia, that “white supremacist literature” was twice left in the employer’s staff room, and
`
`someone had twice removed a bumper sticker from a person’s office door that expressed support
`
`of diversity. At the Appeals Court, the dissent vigorously contended that this specific evidence
`
`was inadmissible based on lack of relevance and overriding prejudice. Bulwer v. Mount Auburn
`
`Hosp., 86 Mass. App. Ct. 316, 353, aff'd in part, 473 Mass. 672 (2016) (Sikora, J, dissenting). As
`
`to this evidence, the Supreme Judicial Court specifically held “…the admissibility of any proffered
`
`evidence at trial is for the judge to determine.” Bulwer, 473 Mass. at 686.
`
`In this case, the evidence is that the confederate flag was on an interior wall of a garage co
`
`owned by McCarthy. It had no relationship to his functions as a police officer, thus the Defendants
`
`were prohibited by the First Amendment of the United States Constitution from taking any action
`
`against McCarthy. Thus, the situation in this case is entirely distinct from white supremacist
`
`literature that is brought into the workplace. To the extent that the Plaintiff attempts to suggest that
`
`this is “permissible evidence of the Defendants’ animus and discriminatory attitudes…and tacit
`
`endorsement of MCarthy’s bigotry….” (Plf’s Opp. at p. 16) this is simply not a permissible basis
`
`to admit such evidence. See Brunner, 413 Mass. at 704–05; Medina–Munoz, 896 F.2d at 10;
`
`Bennett, 507 F.3d at 31; Velazquez–Fernandez, 476 F.3d at 11.
`
`WHEREFORE, the Defendants respectfully request that this court preclude this irrelevant
`
`comparator evidence.
`
`
`
`Respectfully submitted,
`
`The Defendants,
`Town of Greenfield and Robert Haigh,
`
`
`
`5
`
`

`

`
`
`
`
`
`
`
`
`
`
`
`
`
`
`By their attorneys,
`
`
`
`/s/ Leonard H. Kesten
`Leonard H. Kesten, BBO No. 542042
`Erica Brody, BBO No. 681572
`Brody, Hardoon, Perkins & Kesten, LLP
`699 Boylston Street, 12th Floor
`Boston, MA 02116
`
`
`617- 880-7100
`lkesten@bhpklaw.com
`ebrody@bhpklaw.com
`
`
`
`
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on this date, I filed the foregoing document electronically through
`
`the Massachusetts Odyssey File and Serve system and it will therefore be sent electronically to
`
`the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies
`
`will be sent to all non-registered participants.
`
`
`
`
`/s/ Leonard H. Kesten
`Leonard H. Kesten, BBO No. 542042
`
`
`
`
`
`
`Dated: April 5, 2022
`
`
`
`6
`
`