UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS: CHRISTOPHER KENNEDY ) Plaintiff ) ) Vv. ) ) CITY OF PITTSFIELD ) CHIEF MICHAEL WYNN, in his Official and) Individual capacity, CAPTAIN DAVID ) GRANGER, in his Official and ) Individual capacity and MAYOR DANIEL ) BIANCHI, in his Official and Individual capacity) Defendants ) COMPLAINT INTRODUCTION In this action the plaintiff, Christopher Kennedy, brings this action seeking redress for substantial violations of his rights by the City of Pittsfield and its employees under the Federal Civil Rights Act (42 U.S.C., § 1983), ADEA-Age Discrimination in Employment Act (42 USS.C. § 623), the Massachusetts Civil Rights Act (MCRA), Massachusetts General Law Chapter 151B, and the Massachusetts Whistleblower Act, M.G.L. ch. 149, § 185, for retaliating against him for reporting, objecting to, and filing complaints about ongoing violations of law in the City of Pittsfield, specifically by defendants Chief Michael Wynn, Captain David Granger and Mayor Daniel Bianchi, as well as violations of the common law. JURISDICTION Plaintiff, asserts federal jurisdiction under 28 U.S.C. § 1331, and pendent jurisdiction of his state law claims under 28 U.S.C. § 1367.10, ADMINISTRATIVE PREREQUISITES On or about June 26, 2014, the Plaintiff filed a Charge of Discrimination at the Massachusetts Commission Against Discrimination, MCAD Docket Number 14SEM01657, charging the Defendants with discriminating against the Plaintiff in employment on the basis of age. ‘The Charge of Discrimination was filed jointly with the Massachusetts Commission Against Discrimination and Equal Employment Opportunity Commission, EEOC No: 16C-2014-01874, within the time required by Massachusetts General Laws Chapter 151B. Plaintiff has withdrawn his Charge of Discrimination with the Massachusetts Commission Against Discrimination and the Equal Employment Opportunity Commission PARTIES The Plaintiff is Christopher Kennedy, an individual residing in the City of Pittsfield, Berkshire County, Commonwealth of Massachusetts. Defendant City of Pittsfield, is a municipality duly incorporated under the laws of the Commonwealth of Massachusetts ‘The Defendant, Chief Michael Wynn, is Chief of the Pittsfield Police Department, with a place of business located in Berkshire County, Commonwealth of Massachusetts. ‘The Defendant, David Granger (hereinafter “Defendant Granger” or “Captain Granger,”) is employed by the Pittsfield Police Department, with a place of business located in Berkshire County, Commonwealth of Massachusetts. ‘The Defendant, Daniel Bianchi, is Mayor of the City of Pittsfield, with a place of business located in Berkshire County, Commonwealth of Massachusetts. FACTS Plaintiff, Christopher Kennedy (Hereinafter “Kennedy” or “Plaintiff’), age 57, has been employed as a Police Officer for the City of Pittsfield (Hereinafter “the City”), for approximately 27 years. Plaintiff has received numerous awards and commendations for his work during his career with the Pittsfield Police Department, including, but not limited to, letters of commendation for arrest of two people on charges of breaking and entering in the night time; a citation of appreciation for administering life saving techniques in prevention of a fatality; an award for removing an unconscious 7-year old child from a vehicle in adouble fatal motor vehicle accident; a commendation for entering a burning building and evacuating occupants; various letters of appreciation from citizens. 11. Plaintiff is and has always been a dedicated, energetic and hard working employee of the City of Pittsfield. 12, Plaintiff has served in numerous capacities within the patrol division such as community police liaison, command vehicle operator, motoreycle officer, off-road motorcycle officer and boat patrol 13, In October 2012, Plaintiff took and passed the Civil Service Promotional Exam for the position of Sergeant. 14, Just prior to receiving the Civil Service Exam scores, Plaintiff was approached by Lt. Katherine O°Brien (Hereinafter “O’Brien”). Plaintiff had no intention of retiring and desired to be considered as a potential candidate for promotion to sergeant. O”Brien provided the Plaintiff with a copy of the Massachusetts Public Employee Retirement Guide and stated that, “you (Plaintiff) should read this.” 15. Lt. Katherine O’Brien and Defendant David Granger have a closer personal and working relationship within the Pittsfield Police Department. 16. On or about March of 2013, the Civil Service Exam scores were released, Plaintiff scored an 81 and was first on the list to be promoted to the position of Sergeant. 17. Immediately after Plaintiff was placed at the top of the list for promotion to Sergeant, he began to be targeted and heavily scrutinized at work by members of the Department, including Defendant David Granger, who serves as a Captain and is in a supervisory position. 18. On or about April 7, 2013, Lt. O’Brien drafted a report of alleged wrongdoing by the Plaintiff stating that Kennedy had requested delaying the entry into the NCIC computer for a missing persons report “for about an hour.” 19. Lt. O’Brien further alleged that the Plaintiff had said it would be an inconvenience to the County Dispatch (the entering agency), so why not wait when the missing subject would return home anyway. (Attached hereto as Exhibit 1) 20. Lieutenant O’Brien’ report was written to accomplish two objectives. The first was to discredit the Plaintiff's ability to make sound decisions. The second was to have him respond in writing and then accuse him of being untruthful and provide the Defendants with a “reason” to bypass him for promotion to the rank of Sergeant, 21. Soon thereafter, Defendant Granger ordered Plaintiff to respond to the complaint filed by Lt. O’Brien with a deadline of April 19, 2013.22. Based upon his prior experience with Defendant Granger, Plaintiff felt this was an effort to “paper” him so that the Defendants would have a justification to bypass him and force him to retire prematurely. Plaintiff voiced these beliefs to various members of the Department that he was being wrongfully investigated. 23. Out of fear of retaliation for these statements, Plaintiff contacted Mayor Daniel Bianchi (Hereinafter “Mayor Bianchi”) to complain that he was being wrongly investigated and retaliated against. 24, Plaintiff stated to Defendant Bianchi that Lt. O*Brien had written a false report about him. and that he had been ordered to respond to it by Defendant Granger. 25. Based upon the Plaintiff's previous negative experience with Defendant Granger, Plaintiff was afraid he would be disciplined unfairly again, (Defendant Granger had previously wrongfully disciplined Plaintiff and was reversed in part by the Civil Service Commission). 26. Mayor Bianchi asked Plaintiff to meet with him the following moming, 27. Plaintiff went to Mayor Bianchi’s office and provided him with a copy of the complaint filed against him by Lt. O’Brien. Bianchi instructed Plaintiff to provide him with a chronological time line of all the previous incidents involving Captain Granger. 28. On April 18, 2013, Plaintiff drafted a letter to Defendants Captain Granger and Chief ‘Wynn regarding the allegations contained in the complaint filed by Lt. O’Brien. (Attached hereto as Exhibit 2) 29. In his letter, Plaintiff informed both Captain Granger and Chief Wynn that he felt he was being discriminated and retaliated against in an attempt to prevent his promotion to the rank of Sergeant, 30. Plaintiff stated that, “I find the time of this report (Lt. O’Brien’s complaint) amusing as the civil service certified promotional list was recently released and as it was common knowledge that the test scores of individual participants were known throughout the department.” 31. On or about April 29, Plaintiff was ordered to meet with Chief Wynn at his office. Wynn ordered Plaintiff to waite a more detailed report in response to O’Brien’s allegations. Wynn informed Plaintiff that his report would not result in disciplinary action against him, 32. Plaintiff complied with the Chief's order and submitted his report. 33. On or about November 2013, Plaintiff leamed of a new civil service list for entry level Police officers to Pittsfield.34. Upon review of the list, Plaintiff noticed that Captain Granger's son, David R. Granger was placed at the top of the eligibility list due to his alleged “veteran status.” 35. Plaintiff, as well as other Pittsfield officers, was unaware of any military service time that would place David R. Granger into veteran status, Plaintiff reasonably believed that the younger Granger had improperly submitted his application checked as a “veteran.” 36, Plaintiff publicly reported his belief to Sergeant Mark Lenihan, Lt. Winston, Dispatcher Scott Conners and Dispatcher Thomas Hickey and others. Plaintiff stated that, in his opinion, it was unfair to other candidates to improperly claim veteran status to get an advantage on the civil service list. 37. As a consequence of Plaintiff and others (Sgt. Mark Lenihan) speaking out about Defendant Granger's son being wrongfully classified as a veteran, an inquiry was conducted. 38. Had the Plaintiff not spoken out about Defendant Granger's son’s wrongful position on the appointment list for new hires on the Pittsfield Police Department, he would potentially have been hired before other candidates. 39. Subsequently, it was stated that Captain David Granger, who was a veteran and his son, David R. Granger's names had been misidentified As a result, Granger’s son was removed from the top of the list to a lower position for hire. 40. Defendant Granger was made aware that Plaintiff and Sgt. Mark Lenihan had been outspoken about his son's application and the possible inequity to other candidates, 41. On or about January 2014, Plaintiff was notified by Sergeant Matthew Hill that Defendant Granger had told a group of members of the Pittsfield Police Department that “Kennedy (Plaintiff) was trying to buy the position of Sergeant by donating to the mayor.” 42. This false statement by Defendant Granger placed the Plaintiff in a negative light within the Department and held him up to ridicule by other officers further diminishing his opportunity for promotion. 43, Defendants Granger and Pittsfield Chief Wynn have a close professional relationship and consistently support each other’s position on issues within the Department. 44, Plaintiff is assigned to work at the Sergeant's desk arca located outside of Granger's office. Through body language, lack of eye contact and facial expressions by Captain Granger, Plaintiff began to be subjected to a very intimidating and hostile work environment, Although Captain Granger is assigned to work the day shift he very frequently works until late in the evening.45, On or about March 14, 2014, Plaintiff was informed by Sgt. Mark Lenihan that Lenihan had leamed that the City and Chief Wynn were planning on bypassing the Plaintiff to the rank of Sergeant 46. On March 21, 2014, Plaintiff received official notice to sign the certified list to be considered for the position of Provisional Sergeant. 47. On March 22, 2014, Plaintiff encountered Chief Wynn in the Pittsfield Police Department garage. Plaintiff inquired of Defendant Wynn whether the rumors of his (Plaintif?’s) bypass were true. 48. Chief Wynn unequivocally stated that he had “no intention to promote” the Plaintiff, even though the procedures associated with the promotional process, including taking part in the formal interview had not yet been completed. 49. On or about April 9, 2014, Plaintiff interviewed with Chief Wynn, Mayor Bianchi and City Personnel Director DeAngelo for the promotion to Provisional Sergeant. 50. On or about April 20, 2014, Plaintiff leamed via general department e-mail that Officer Gary Traversa, age 40, would be assuming the duties of Provisional Sergeant. 51. On May 29, 2014, Plaintiff, pursuant to the requirements of M.G.L. 149, § 185 (e)(1), provided written notice to Mayor Bianchi that he was being retaliated against for engaging in protected activities protected by state law and for reporting matters that he reasonably believed to constitute wrong doing. (Attached hereto as Exhibit 3) 52, Plaintiff stated that he had complained to Sergeant Lenihan, Lieutenant Michael Winston, Dispatcher Scott Conners and Dispatcher Thomas Hickey and others about Captain David Granger's son, David R. Granger, being placed at the top of the Civil Service list due to his alleged “veteran status.” 53. Plaintiff notified Mayor Bianchi that as a result of his complaints he was subsequently, retaliated against by multiple employces of the Department who began to overtly remove Kennedy from the chain and flow of information regarding the status and ongoing developments within the Department. Plaintiff also stated that he believed members of the Department have been attempting to “paper” Kennedy so that they would have grounds to discipline and possibly terminate his employment. 54. On or about June 23, 2014, the Plaintiff filed a Charge of Discrimination at the Massachusetts Commission Against Discrimination, MCAD Docket Number 14SEM01657, charging the Defendants with discriminating against the Plaintiff in employment on the basis of age. (Attached hereto as Exhibit 4) 55. On August 5, 2014, Defendant Wynn notified the Pittsfield Police Department that four (4) promotions were taking effect on Sunday, August 10, 2014, including three (3) promotions to the position of Sergeant. (Attached hereto as Exhibit 5)56. Wynn stated that Temporary Sergeant Gary was being promoted to Permanent Full-Time Police Sergeant. Sergeant Traversa is approximately sixteen (16) years younger than Plaintiff. 57. Wynn stated that Officer Gary Herland was being promoted to Temporary Full-Time Police Sergeant. Sergeant Herland is approximately twelve (12) years younger than Plaintiff 58, Wynn stated that Detective Nicholas DeSantis was being promoted to Provisional (Acting) Full-Time Police Sergeant. Sergeant DeSantis is approximately twenty-three (23) years younger than Plaintiff. 59, Plaintiff was ranked higher on the Civil Service eligibility list than Traversa, Herland and DeSantis. (Attached hereto as Exhibit 6) 60. On August 12, 2014, approximately five months after his conversation with Defendant ‘Wynn, Plaintiff was officially notified of the bypass for the promotion to Sergeant. (Attached hereto as Exhibit 7) 61. In said notice, John DeAngelo, Director of Personnel for the City of Pittsfield stated, “In examining the document it appears that you did not receive the required notice of by- pass.” 62, Plaintiff alleges he was not provided the required notice of bypass by the Defendants in a deliberate attempt to preclude or otherwise limit his rights of appeal to the Civil Service Commission and/or the MCAD. 63. Plaintiff's bypass to the rank of Sergeant is a direct consequence of both his age (57) and in retaliation for reporting his reasonable belief to Defendant Bianchi that he was ‘wrongfillly investigated by Defendant Granger and for reporting his reasonable belief that Defendant Granger’s son had falsely claimed veteran’s status. 64, At the time of Plaintiff's by-pass, Defendant Granger was further motivated to force Plaintiff into retirement to create an additional position on the Pittsfield Police Department for new hire candidates. 65. On March 20, 2015, the City of Pittsfield posted a notice of employment for a position of Full-Time Police Sergeant. (Attached hereto as Exhibit 8) 66. Plaintiff and Provisional Sergeant Nicholas DeSantis were the only individuals who were eligible and stated they were willing to accept the position. 67. On April 6, 2015, Plaintiff received a letter signed by Mayor Daniel Bianchi, informing Kennedy that the City had bypassed him on the Civil Service list certified as number 15+004 for the position of Permanent, Full-time Police Sergeant. (Attached hereto as Exhibit 9%) 68. Plaintiff was bypassed by Sergeant Nicholas DeSantis, Upon information and belief, Sergeant DeSantis is twenty-three (23) years younger than Plaintiff. At the time of his promotion, DeSantis had ten (10) years of service with the Pittsfield Police Department. Plaintiéf had twenty-eight (28) years of service with the Pittsfield Police Department, 69. As a result of the City’s unlawful age discrimination, Kennedy has suffered damages, including but not limited to, loss of compensation, loss of benefits, loss of future benefits, consequential damages, damage to his personal and professional reputation, severe emotional distress, legal fees and expenses. 70. Plaintiff, through various means and measures, publicly and privately reported, objected to, filed complaints and reports concerning what he reasonably believed were ongoing violations of law and public safety issues within the Pittsfield Police Department including, but not limited to, violations by Defendants Granger and Wynn. 71. The Defendants retaliated against Plaintiff for disclosing, objecting to and/or refusing to participate in an activity, policy or practice which Plaintiff reasonably believed was in violation of a law and/or a rule or regulation promulgated by law, in violation of the Massachusetts Whistleblower statute, G.L.c.149 §185. 72, Plaintiff has been retaliated against for reporting and objecting to such actions and as a result of raising these issues he was subsequently subjected to disparate treatment, a hostile work environment, retaliatory acts, lost promotional opportunities and the potential for termination from employment. 73. Asa consequence of the defendants’ actions, Plaintiff suffered and continues to suffer damages, including, but not limited to: loss of income, loss of employment benefits, other financial losses, loss of professional opportunities, loss of personal and professional reputation, loss of community standing, and emotional and mental distress. COUNT ONE - WHISTLEBLOWER (M.G.L. ch. 149, § 185) vy. CITY OF PITTSFIELD 74, Plaintiff incorporates herein the previous allegations set forth in this Complaint, Plaintiff, through various means and measures, reported, objected to, filed written complaints and reports about ongoing violations of law in the Pittsfield Police Department including, but not limited to, violations by Defendants Wynn and Granger. 75, The Defendants retaliated against Plaintiff for disclosing, objecting to and/or refusing to participate in an activity, policy or practice which plaintiffs reasonably believed was in violation of a law and/or a rule or regulation promulgated by law, in violation of the Massachusetts Whistleblower statute, G.L.c.149 §185.76, Plaintiff has been retaliated against for reporting and objecting to such actions and as a result of raising these issues was subsequently subjected to disparate treatment, a hostile work environment, retaliatory acts, and termination from his employment. 77. As a consequence of the Defendants’ actions, Plaintiff suffered and continues to suffer damages, including, but not limited to: loss of income, loss of employment benefits, other financial losses, loss of professional opportunities, loss of personal and professional reputation, loss of community standing, and emotional and mental distress. WHEREFORE, Plaintiff demand judgment against the Defendant on Count J, plus interest and costs of this action, and reasonable attomeys’ fees as provided under G.L.c.149, Section 185. COUNT TWO - MASSACHUSETTS CIVIL RIGHTS (M.G.L. ch. 12, §§ 11H, 1) v. Defendants Wynn, Granger and Bianchi in their official and individual capacities 78. The Plaintiff incorporates herein the previous allegations set forth in this Complaint. 79. Defendants, in their official and individual capacities, attempted to interfere with, and interfered with PlaintifP's exercise and enjoyment of rights secured by the constitution and laws of the United States, and the constitution and laws of the Commonwealth, by threats, intimidation and coercion, including his right to the exercise of free speech, equal protection of the laws and continued employment. WHEREFORE, Plaintiff demand judgment against the Defendants on Count TI, plus interest and costs of this action, and reasonable attorneys’ fees es provided under MGL. c. 12, Section 111. COUNT THREE - CONSPIRACY v. Defendants Wynn, Granger and Bianchi in their official and individual capacities 80. The Plaintiff incorporates herein the previous allegations set forth in this Complaint. 81. The City of Pittsfield and its employees, including the individual Defendants, have pursued, or joined in the pursuit of, a common course of conduct, and acted in concert with and conspired with one another, in furtherance of a common plan or design to retaliate against Plaintiff and ultimately remove Plaintiff from his employment and or deny him promotional opportunities. 82. The unlawful means and purpose of this conspiracy were undertaken in retaliation for Plaintiff's reports, objections, complaints, and citations about violations of law by the Defendants in the City of Pittsfield. WHEREFORE, Plaintiffs demand judgment against the Defendants on Count II, plus interest and costs of this action, and reasonable attorneys’ fees.COUNT FOUR - INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. v. Defendants Wynn, Granger and Bianchi in their official and individual capacities 83. The Plaintiff incorporates herein the previous allegations set forth in this Complaint. 84, The conduct of the Defendants towards the plaintisf was extreme in degree and outrageous in character, resulting in the intentional and reckless infliction of emotional distress upon plaintiff. 85. Defendants intended to inflict emotional distress on plaintiff or knew or should have known that emotional distress was a likely result of defendant's conduct. 86, Defendants conduct as alleged above was extreme and outrageous, beyond all possible bounds of decency and was utterly intolerable. 87. The outrageous actions of the Defendants were the cause of Plaintiff's distress and the emotional distress sustained by the Plaintiff is of a nature that no reasonable person could be expected to endure. 88. As a result of the outrageous actions of the Defendants, Plaintiff was caused to suffer emotional injuries and damages COUNT FIVE -M.GLL. c. 151B - AGE DISCRIMINATION 89. The Plaintiff incorporates herein the previous allegations set forth in this Complaint. 90. The discriminatory and abusive treatment of the Plaintiff, as described herein, violates the express provisions of M.G.L. e. 151B with regard to age. 91. There is direct and circumstantial evidence of bias on the part of the Defendants, including, but not limited to, the evidence set forth above. 92. This hostile environment and the conditions imposed upon the Plaintiff and the adverse action taken against the Plaintiff by Defendants is directly related to his age and has adversely affected the terms and conditions of his employment, including, but not limited to promotional opportunities. 93. The Plaintiff was severely and adversely afifected by the Defendants’ conduct and by the failure of the Defendant City of Pittsfield to take reasonable steps to stop or correct this conduct COUNT SIX -M.G.L. c. 151B - RETALIATION 94, The Plaintiff incorporates herein the previous allegations set forth in this Complaint. 95. The Plaintiff was treated differently as to the terms and conditions of his employment based upon his reporting age discrimination,96. The Plaintiff believes that he was bypassed and subject to adverse employment action, at Jeast in part, based upon his reporting of said age discrimination in addition to the other allegations contained herein. 97. This environment and the conditions imposed upon the Plaintiff related to and adversely affected the terms and conditions of his employment, 98. The Plaintiff was severely and adversely affected by the Defendants’ conduct and the failure of the Defendant to take reasonable steps to ensure that this discriminatory conduct would not continue. COUNT SEVEN— Civil Rights (42 U.S.C, § 1983) 99. The Plaintiff incorporates herein the previous allegations set forth in this Complaint. 100. The Defendants, in their official and individual capacity, and under color of law, attempted to interfere with, and interfered with, Plaintiffs exercise and enjoyment of rights secured by the constitution and laws of the United States, including his right to free speech. 101 Defendant Granger, in his official and individual capacity, and under color of law, attempted to interfere with, and interfered with, Plaintiff's exercise and enjoyment of rights secured by the constitution and laws of the United States, including his right to free speech, 102, Defendant Wynn, in his official and individual capacity, and under color of law, attempted to interfere with, and interfered with, Plaintiff's exercise and enjoyment of rights secured by the constitution and laws of the United States, including his right to free speech. 103. Defendant Bianchi, in his official and individual capacity, and under color of law, attempted to interfere with, and interfered with, Plaintiff's exercise and enjoyment of rights secured by the constitution and laws of the United States, including his right to free speech. 104, WHEREFORE, Plaintiff demands judgment against Defendant Granger and Defendant Wynn and Defendant Bianchi on Count VII, including compensatory and punitive damages, compensation for his emotional pain and suffering, interest, costs, attomeys’ fees, and such other relief as this Court deems just and proper. COUNT EIGHT - Unlawfal Employment Practices-ADEA-Age Discrimination (QUSC. § 623) 105. The Plaintiff incorporates herein the previous allegations set forth in this ‘Complaint. 106. ‘The Plaintiff was treated differently as to the terms and conditions of his employment based upon his age by the Defendants.107. ‘The Plaintiff believes that his employment was adversely affected, at least in part, based upon age, as well as resisting and reporting the discrimination and harassment itself. 108. This environment and the conditions imposed upon the Plaintiff related to and adversely affected the terms and conditions of his employment. 109 ‘The Plaintiff was severely and adversely affected by the Defendants’ conduct and the failure of the Defendants to take reasonable steps to ensure that this discriminatory conduct would not continue. ‘THE PLAINTIFF HEREBY DEMANDS A TRIAL BY JURY ON ALL COUNTS. Respectfully submitted, For Plaintiff, By his attomey, he Timothy, Burke, BBO #065720 160 Gould Street, Suite 100 ‘Needham, MA 02494-2300 Dated: August 31, 2015 (781) 455-0707 CERTIFICATE OF SERVICE I, Timothy M. Burke, hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic filing (NEF) and paper copies will be sent to those indicated as non-registered participants on August 31, 2015