Darryl and Domenic in the Beforetimes. Circa January 2020, actually. (via Springfield City Hall)

SPRINGFIELD—Lawyers for former Springfield mayoral aide, Darryl Moss, and his old employer, Mayor Domenic Sarno were in court last month to argue over whether Moss’s discrimination lawsuit can proceed. The parties, which include the city itself as a defendant, had not been in open court for months. The discovery process has taken up much of the preceding year.

Hampden Superior Court Judge James Manitsas heard the defendants’ motion for summary judgment. They argued that after discovery there is no factual dispute that Sarno’s lawfully terminated Moss for a post that allegedly violated the city’s employee social media policy. Obviously, Moss disagrees.

“Mr. Mahoney concluded the post did violate the social media policy,” Patricia Rapinchuk, Sarno and the city’s attorney, said at oral arguments. She was referencing Springfield’s HR/Labor Relations director, William Mahoney, who investigated the post.

“An objective reading of that post could be that it was advocating violence and violence against the police,” Rapinchuk continued.

Robert Johnson, Moss’s attorney, asserted the social media policy was just a pretext to justify a discriminatory employment action.

“The city used a blanket policy, but did not specifically state what aspect of the social media policy was violated,” Moss’s lawyer, Charles Johnson said at oral arguments.

Moss had been in Sarno’s employ since 2008, the year the mayor entered office. Sarno testified Moss’s performance had been satisfactory until his termination. In 2020, Moss, by then Sarno’s Constituent Services Director,  received a recognition.

Moss alleges that Sarno’s firing him due to a social media post—and amid the George Floyd protests— amounted to employment discrimination. In that post, Moss called Trump’s support for armed brat Kyle Rittenhouse, who had killed two people in Wisconsin, “a declaration of war.”

“Sundown Sunrise Ass Country… Yo Keshawn Dodds grab the rifles!” Moss continued, tagging an acquaintance of his. A month later, Sarno canned Moss for violating the city’s social media policy.

(A jury eventually acquitted Rittenhouse, consistent with evidence of self-defense. His decision to crash a protest while packing heat all while a tense national moment remains suspect.)

Sometime after his termination, Moss moved to the Atlanta area.

The city and Sarno have said the national tension factored into the decision to can Moss. Moss has maintained since the investigation began that his post was a reference to the HBO show Lovecraft Country. His lawyer has underscored that he posted it on his own time and on his personal—if publicly visible—Facebook account.

Moss’s case against Sarno and the city began at the Massachusetts Commission Against Discrimination. He withdrew it and filed in Superior Court in 2022. He initially alleged breach of contract, defamation and First Amendment violations, too. A judge dismissed these. The case continues with claims of discrimination, discriminatory disparate impact, retaliation, violations of the Massachusetts Civil Rights Act (MCRA), and negligence in the investigation of Moss’s post.

In their motion, the defendants argue the city applies the social media policy fairly. What inconsistencies that occur were due to the policy not yet applying to collective bargaining agreements. That argument appeared strongest against the claims of direct discrimination and disparate impact. The city further asserted that it never actually threatened Moss’s speech rights, as is required under the MCRA, and that Mahoney diligently conducted a full and fair investigation.

Judge Manitsas has presided over much of the case up to now. (still via YouTube/Governor’s Council)

To win on summary judgment, the defendants must convince Judge Manitsas that no genuine issue of fact remains for a jury to consider. Indeed, Johnson pushed back on the suggestion that all the facts were settled, instead saying all the city and Sarno had was circumstantial evidence.

Retaliation may be the hardest claim to dismiss. Such claims often trip defendants up because they only require punishing someone for engaging in protected actions. This initial activity can be reporting discrimination with an HR office or the government. It can also be supporting an employee may face discrimination. The underlying allegation does not need to be legally sufficient for a retaliation claim to succeed.

The city hired Rapinchuk’s firm ostensibly because the city Law Department is conflicted out.

Sarno’s office has not responded to a request for comment about the summary judgment motion. Rapinchuk declined to comment after oral arguments. Moss’s attorney did not indicate how he thought Manitsas would rule.

“The judge gave both sides time to present their arguments. I’m certain the Court’s decision will be just and fair,“ Johnson said in an email.

With thousands of employees and a nearly $1 billion budget, discrimination lawsuits are not foreign to Springfield. However, most such discrimination suits are cabined within specific city departments. They would go nowhere near Sarno’s oft-inscrutable inner sanctum.

The summary judgment motion includes affidavits and portions of depositions from several of the principal actors in the case. Among the individuals the parties deposed were Moss, then-Police Commissioner Cheryl Clapprood, HR/Labor Relations Director William Mahoney and the mayor.

Together, these provide a behind-the-scenes look at the events leading up to Moss’s termination and how City Hall works generally, such as confirmation of mayoral screaming. (Sarno testified he did not recall the meeting at which that happened.)

Moss’s opposition to summary judgment emphasizes his work on civil rights in Springfield. In his deposition and in court filings, Moss it was he who pressed Sarno to act after events like the beating of Melvin Jones and the reinstatement of officers involved the fracas that began at Nathan Bill’s Bar & Restaurant. (Sarno testified Moss was one of many influences.) Moss called disputes between the city’s Black community and City Hall “stressful.”

“So, it was like fighting an uphill battle trying to assist members of the Black community. And that’s stressful because I’m a member of the Black community,” Moss testified.

The events most proximate to his termination were advocating for the reinstatement of Keshawn Harris’ firearm license and organizing events around the Department of Justice’s report on police misconduct. Moss indicated these activities led many in Pearl Street, up to and including Clapprood, to dislike.

Moss and his attorney frequently alleged that actions Clapprood had taken, including as the hiring/firing authority for Springfield Police, were evidence of discrimination in the city. Rapinchuk has dismissed these citations as irrelevant. Yet, Moss also claimed Pearl Street had begun monitoring his social media in August of 2020. That was how they came to report the post to 36 Court Street.

Clapprood retired last year. By then, the mayor had retitled her position as Police Superintendent. Lawrence Akers succeeded her.

At the heart of the summary judgment motion is whether the city actually followed the social media policy, consistent with prior practice, when Sarno terminated Moss. The city has argued it often turfs employees for errant social media posts. Exceptions Moss cited were often those the defendants said fell under union contracts that had not yet incorporated the policy.

Sarno issued the policy in 2017 after a cop made light of the ramming protesters in Charlotteville. One woman died in the carnage. This had immediate effect upon nonunion employees. Yet, it took time to add it to union contracts, as Rapinchuk noted at the hearing and in court filings. One of the people Moss cited as an example for disparate treatment was Police Captain Richard Labelle, who made insulting comments on a Facebook thread that was discussing football players kneeling in 2018. He received a daylong suspension.

“While Defendants do not dispute these allegations, Plaintiffs will be unable to prove that Labelle was similarly situated in all relevant aspects,” Rapinchuk wrote in her brief. “Labelle was a Civil Service employee and a member of a union, and decisions about his discipline were subject to and had to comply with the terms of the union contract and the Civil Service laws.”

That might doom the direct discrimination claims. Yet, in court, Johnson raised a novel observation: Moss had not actually violated the social media policy. He cited a September summary judgment ruling against Springfield in a similar case. There a Latino police officer also lost her job for violating the Police Department’s social media policy. Johnson argued that Moss’s post did not fall under any of the citywide policy’s prohibited activities.  Ergo, there remained a dispute as to whether Sarno’s action was pretextual. That may not sway a jury, but it could defeat summary judgment.

Neither Mahoney’s report nor Moss’s termination letter appear to identify which part of the social media policy Moss violated.

Nevertheless, the strongest claim remains retaliation. While the court papers identify many of Moss’s activities supporting the Black community, the events immediately before his termination may be most relevant. As Johnson described how as news of the investigation into Facebook post broke, Moss sought permission from Sarno’s to hold a press conference to support his side.

In court, Rapinchuk argued the events that led to Moss’s termination began and effectively concluded before that day. That may not be sufficient, though.

Moss spoke briefly at the September 30, 2020 rally—although a longer statement from him was read—but prominent figures in Springfield’s Black community alleged that racism was behind the investigation and now threatened Moss’s job. The next day Sarno terminated Moss, Johnson noted. The attorney cited Sarno’s deposition wherein the mayor acknowledged he fired Moss the day after the rally.

Sarno argues he didn’t file Moss for the rally…after the rally.

Johnson repeated many of these points while discussing the MCRA claim.

“It sends a message to others in the city that if you speak your mind, you may be terminated,” he said.

Perhaps the most vulnerable claim is the alleged negligence of the investigation. Johnson dwelled on that claim only briefly. Moss’s opposition to summary judgment discusses it broad strokes, pointing to a failure to consult affirmative action managers or undertake progressive discipline. Rapinchuk, however, countered that no duty of care exists.

“There is no other source in law that says the city has a duty to investigate social media policy violations,” she said.

Skeptics of Sarno’s City Hall may think Mahoney reached the conclusion the mayor or others wanted. However, the evidence the city’s personnel direct conducted a slipshod investigation seems thin.

The standard Sarno and the city must meet is high as the case in September showed. Were the judge to grant summary judgment, he would essentially be asserting that no reasonable jury could find for Moss given the undisputed facts.

If some or all claims survive, the case will go to trial. Moss is seeking north of $2 million in damages, per documents filed with the briefs. That amount is well within the city’s financial capacity to settle—although it might need City Council approval. Yet, Moss may have little incentive to settle.

The progression of the suit suggests he wants to make a point as much as recoup his damages. Just putting the mayor through a trial, at which he will have to testify in open court, could be a prize itself.