A minor setback for Moss in first legal test of his case against Sarno and the city. (via Springfield City Hall)

The city of Springfield successfully whittled down the claims former mayoral aide Darryl Moss has alleged, but the meat of the suit endures. Moss, who held multiple roles in Mayor Domenic Sarno’s office, was shown the door after a controversial Facebook post. After filing with the Massachusetts Commission Against Discrimination, he sued in court. Moss’s July 12 complaint included seven counts, including three employment discrimination claims, against Sarno and by extension the city.

The city targeted four counts—negligence, breach of contract, defamation, and, ostensibly, First Amendment violations—for dismissal. The city’s motion sought to knock out these non-discrimination counts because Moss had supposedly failed to allege enough facts to legally sustain the claims. Hampden Superior Court Judge Jane Mulqueen sided with the city on three of the four claims.

The city’s motion is an early action in litigation. Not surprisingly, the judge’s ruling is concise and avoids nearly any discussion outside the alleged facts and applicable law. The claim Mulqueen sustained pertained to negligence.

Moss’s attorney did not comment on the ruling. An attorney for Springfield and the mayor declined to comment citing city policy to not speak on pending litigation.

Moss claimed the city’s investigation of his conduct was negligent in its execution and thus he suffered damages. The city counters that this was a discretionary policymaking function that is exempt from litigation. Mulqueen rejected the city’s argument. While the city’s investigation was discretionary, the exception was narrow.

“Whether or not to investigate an employee’s private post to social media is not discretionary conduct involving policy making or planning, and not the type of decision the narrow discretionary function exception was designed to protect from liability,” she writes in her opinion. Employee management was not policy making or other activity the exception covered.

The city had more success against Moss’s breach of contract and defamation claims. Moss had argued that the city’s employee policy manual constituted a contract and Sarno violated it by not using progressive discipline against his aide. At this stage of litigation, Mulqueen found, the court was not in a position to deem the manual a contract or not. But even assuming it was, the claim could not stand.

The use of progressive discipline for employees was itself discretionary, she wrote, citing the policy’s own use of the word “may.”

Moss’s claim of defamation appeared to be a bit flimsier in the court’s eyes. It lacked the kind of specificity courts demand when imposing penalties for uttering false statements.

Mayor Sarno circa 2020. (WMP&I)

“Nowhere in the complain does Mass state exactly what Sarno said, when he made the allegedly defamatory statements, to whom he made them, or otherwise how such statements were published,” Mulqueen writes. “At most, Moss alleges that at some unspecified point, Sarno ‘stated to the media that Plaintiff’s social media postings advocated violence.’”

In other words, the court found Sarno’s statement is not disprovable.

The final count that the court dismissed alleged that Sarno violated Moss’s free speech rights. However, the court explicitly did not dismiss this claim with prejudice. Moss had alleged a claim arising directly from the state and federal rights to speech, but no such thing exists. Rather, plaintiffs must file such claims under the Massachusetts Civil Rights Act.

Moss appears likely to do so. However, the survival of the negligence claim may have potential if anything further develops during discovery.

Still, his case under employment discrimination laws will remain his strongest for now. In reciting the allegations, the judge notes Moss’s claim that a white employee did not experience termination for a social media post. If true and the facts are substantially similar, it may be what checkmates Sarno.