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Kim Janey didn't discriminate against the man who was police commissioner for two days by firing him, judge concludes

A federal judge today dismissed or put on hold much of Dennis White's wrongful-termination suit against Boston for the way he was booted as police commissioner by then acting Mayor Kim Janey, but gave White two weeks to filed a more detailed rationale for why his due-claims shouldn't be dismissed as well.

Specifically, US District Court Judge Leo Sorokin dismissed White's allegations that Janey held racial or sexual animus against him.

In his ruling, Sorokin said he's skeptical White has a due-process case, either, but agreed to let him and his lawyers try to make the case that what they claim is the city's failure to give him an adequate public airing of his case really was a violation of his right to due process. He said he was doing so because city lawyers failed to do what he did and provide a comprehensive argument that White has no case:

Thus, White has not addressed these questions, and the Court lacks the benefit of the parties’ insights and arguments. In these circumstances, dismissal of Count I at this juncture would be ill-considered and unfair to the parties.

Should Sorokin rule against White on that count as well, however, that might not be the end of White's lawsuit. Sorokin took no action at all on more than a dozen claims White raised that are based on state laws, including one very specific 1962 law related to the relationship between the mayor of Boston and the city police commissioner, which has never been tested in court and which Sorokin could send back to state court for proceedings. White, in fact, originally sued Boston and then acting Mayor Kim Janey in state court, but city attorneys "removed" the case to federal court because of the constitutional issues White raise.

The case stems from White's sudden rise and then dismissal as Boston police commissioner. After Police Commissioner William Gross suddenly quit with no advance public notice in early 2021, Mayor Marty Walsh quickly appointed Gross's friend, White, as his successor, without even the usual pretense of a nationwide search, as Walsh was preparing to decamp for Washington.

The Globe promptly published a story about domestic-abuse claims against White by his former wife, herself a Boston Police officer and Walsh suspended White two days after appointing him. In June, Janey fired White completely, arguing he was a bully who had no place in a modern police department.

Sorokin's ruling today was technically on whether White could swap out his initial complaint, which alleged the city wronged him two different ways, with a longer complaint alleging the city should be made to pay for 16 different violations of both federal and state law.

But Sorokin dismissed two of White's three complaints under federal law, both dealing with alleged violations of his right to equal protection due to alleged racial and sexual bias by Janey.

White failed to provide any proof that media reports claiming Janey was considering a woman superintendent as White's replacement was proof that Janey canned him because of his gender. Plus, unlike White, that superintendent had a clean internal-affairs record - no allegations of domestic abuse, or, for that matter, any allegations of any wrongdoing at all. White's ex-wife is also not a valid "comparator" to prove gender bias, because unlike White, she was not being considered for commissioner.

Similarly, Sorokin continued, Janey saying she would not tolerate domestic abuse against Black women was far from enough to prove that she was biased against White - especially because her comment came in response to White alleging that Janey, the city's first Black mayor, was biased against him because he is Black himself.

So that leaves White's one remaining federal count, that the way Janey fired him - her initial attempt was put on hold by a state judge after White sued violated his due-process rights because Janey released a report on the allegations against White that White claimed including falsehoods that he was not allowed to rebut:

In essence, White asserts that the defendants deprived him of a constitutionally protected liberty interest when they released the Report and publicly commented on it, because he alleges the Report contained false and stigmatizing charges that the defendants tied to his removal as Commissioner of the BPD. In these circumstances, White alleges, he was entitled to a “public” and “evidentiary name-clearing hearing,” which the defendants failed to provide.

The problem with White's allegation, legally known as a "stigma-plus" claim is that a similar case involving the firing of New York City's chief medical officer "raises substantial questions about whether White has stated a plausible due process claim here," Sorokin wrote

In that case, a federal appeals court in New York concluded that "the constitutionally protected interest at issue" is not whether the person could get his job back, but whether the "stigma" from a report leading to his firing would prevent him from securing other employment by unfairly tarnishing his reputation by releasing information without letting the person try to rebut it. "It does not, however, compel a government employer to change its mind and believe or endorse the person’s refutation of the stigmatizing information," Sorokin noted. "Nor does it guarantee the person their job back."

White undercuts his own charge in his complaint, Sorokin wrote:

Here, White's own allegations demonstrate Janey and the City permitted him multiple opportunities to [rebut the allegations]. White was interviewed by the independent investigator and submitted evidence to her; the substance of his responses to her questions as well as his written statement submitted to her after the interview were included in the Report; at least one witness statement he submitted to the investigator was summarized in the Report, along with further information the investigator gleaned from an interview conducted with that witness; he collected and submitted to the defendants in advance of his termination hearing sworn and videotaped statements of witnesses who spoke on his behalf regarding the stigmatizing charges; he was represented by counsel throughout the process; and he was permitted to speak during the termination hearing when it did occur. In these circumstances, [White's revised complaint] does not support a plausible inference that White was denied an opportunity to clear his name with his employer (i.e., the City and Janey).

Sorokin continued:

The second question posed by a claim such as White's, and the primary focus of the stigma-plus claim articulated in the PSAC, is whether and to what extent a public and/or trial- like name-clearing opportunity is constitutionally mandated. Accepting White's allegations, the private video hearing held by Janey in June was not such a proceeding. White, however, has cited no authority holding that a person in his position is entitled to a public, formal, trial-like proceeding facilitated and presided over by his government employer.

But while Sorokin says he readily found the New York case - cited in another case decided in Boston, city attorneys did not attempt to use it in their arguments and did not provide a detailed analysis of why the judge should rule against White's due-process claim, which means White's attorneys had no chance to rebut it. He gave White two weeks to reply and then gave city attorneys a week after that to answer before he reaches a decision.

In the meantime, Boston still does not have a permanent police commissioner. After White was suspended, Walsh named BPD Superintendent in Chief Gregory Long as acting commissioner, a post he continues to hold. In January, Mayor Wu appointed a committee to help her find a new commissioner. Long has taken himself out of the running for the permanent job.

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Comments

… under the rock Walsh and Gross pulled him out from under?
Probably not.
Janey did the right thing and the judge has been more than fair giving him an extra 2 weeks to wriggle in the muck.

up
Voting closed 11