Opinion
No. 15–P–1618.
12-08-2016
Jose EDWARDS v. CITY OF BOSTON & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Jose Edwards, appeals from the summary judgment in favor of the defendants. On appeal, the plaintiff contends that the Superior Court motion judge erred in granting summary judgment to each defendant (on multiple grounds) and in failing to rule on his motion for sanctions, and that the city of Boston and Carol R. Johnson deprived him of due process for failing to continue with his disciplinary hearing. We affirm.
1. Summary judgment. The defendant claims that the motion judge erred in granting summary judgment for the defendants based on multiple contract, civil rights, and negligence theories. We disagree.
In reviewing the grant of a motion for summary judgment, we analyze the evidence in the light most favorable to the nonmoving party for whether all material facts have been established, and determine if the moving party was entitled to a judgment as a matter of law. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Our review is de novo. The question then is whether the plaintiff "ha[d] ‘no reasonable expectation of proving an essential element’ of his case." Bobick v. United States Fid. & Guar. Trust, 439 Mass. 652, 659 (2003) (citation omitted).
The plaintiff contends that the summary judgment motions brought by the city of Boston and Johnson should have been denied on the breach of contract, breach of implied covenant of good faith and fair dealing, negligence, and violation of civil rights claims. He also asserts that the motions for summary judgment on the defamation claims, brought by Johnson and Donna Robbins, should have been denied.
A. Breach of contract. The motion judge found no genuine issue of material fact concerning the breach of contract claims because the plaintiff was no longer an employee, and therefore no longer a party to the relevant contract. The dispute resolution process outlined in the collective bargaining agreements apply only to "member[s] of the bargaining unit," "administrator[s]," and "employee[s]," categories of which the plaintiff was no longer a member after his termination. There exists nothing in the contract that required disciplinary hearings to continue after termination of the employee for reasons other than the discipline in question, rendering the plaintiff's breach of contract claims void.
B. Breach of implied covenant of good faith and fair dealing. The motion judge determined that the plaintiff's claims for breach of implied covenant of good faith and fair dealing were duplicative of his claims for breach of contract, and as with the breach of contract claims, he had no rights under the contract to finish the disciplinary process after his employment had been terminated. This allegation was simply based on the plaintiff's speculation, and there was no evidence that he would be able to prove essential elements of either his claims for breach of contract or for breach of implied covenant of good faith and fair dealing. See ibid.
C. Negligence. The motion judge properly granted the motions for summary judgment on the plaintiff's negligence actions where the claims made by the plaintiff were for intentional acts, not negligent conduct. An act cannot be considered intentional (i.e., his breach of contract claim) and also negligent. See Sabatinelli v. Butler, 363 Mass. 565, 567 (1973) ("If conduct is negligent it cannot also be intentional. Similarly, a finding of intentional conduct precludes a finding that the same conduct was negligent").
D. Violation of civil rights. As the motion judge found, a municipality is not a person for purposes of suit under the Massachusetts Civil Rights Act (MCRA). See Howcroft v. Peabody, 51 Mass.App.Ct. 573, 591–592 (2001). The judge properly granted the city of Boston's summary judgment motion on the plaintiff's MCRA claims.
In granting Johnson's motion for summary judgment on this claim, the motion judge expressly found that the plaintiff "failed to state a prima facie case for a violation of his civil rights as a matter of law." A claim is proper under the MCRA and may be brought against a public employee when the plaintiff proves that "(1) their exercise or enjoyment of rights secured by the Constitution or laws of either the United States or of the Commonwealth, (2) have been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by ‘threats, intimidation or coercion.’ " Swanset Dev. Corp. v. Taunton, 423 Mass. 390, 395 (1996), quoting from G.L. c. 12, § 11I. The plaintiff alleged that Johnson's failure to provide him with a full disciplinary hearing impaired his due process rights, and that her communications and letters with the plaintiff were intended to intimidate, threaten, and terminate his employment. After review of the letters, the motion judge properly determined that they did not rise to the level of a violation of the MCRA. There was no evidence in the letters that would be construed as coercive or threatening in nature, and they merely communicated the plaintiff's employment status and rights. As with his breach of contract claims, there was no violation of his rights to due process for a disciplinary hearing because the plaintiff was no longer employed, as he was terminated due to a reduction in work force and therefore had no due process or contractual rights to an ongoing disciplinary hearing after termination.
E. Defamation. The motion judge also properly granted summary judgment in favor of Johnson and Robbins on the plaintiff's defamation claims. "In order to state a claim of defamation, a plaintiff must allege facts indicating that (1) the defendant published a false statement regarding the plaintiff—that is, the defendant communicated the statement concerning the plaintiff to a third party; (2) the statement could damage the plaintiff's reputation in the community; and (3) the statement caused economic loss or is otherwise actionable without proof of economic loss." Flagg v. AliMed, Inc., 466 Mass. 23, 37 (2013). The plaintiff's claim against Johnson stems from a meeting attended by the plaintiff, Johnson, and Hassell McClellan, the plaintiff's mentor, in which Johnson inquired about the facts underlying the allegations against the plaintiff. In fact, the plaintiff does not dispute that Johnson was inquiring about his side of the story regarding the allegations and the investigation, and has failed to provide any specific defamatory statements made by Johnson, or any proof of harm to him stemming from such statements. Without specific statements or any proof of loss, summary judgment in favor of Johnson was proper.
The grant of the summary judgment motion for Robbins was also proper, for Robbins is a mandated reporter, and therefore possessed conditional privilege due to her employment. See Mulgrew v. Taunton, 410 Mass. 631, 635 (1991). The plaintiff has failed to produce any evidence that the § 51A complaint or Robbins's testimony at the disciplinary hearing were done with actual malice or reckless disregard for the truth, nor has he shown the report was made in bad faith or was frivolous. See G.L. c. 119, § 51A(g). See also Mulgrew, supra at 636 (defamation suit will not succeed without showing of knowing or reckless publication of defamatory statement). Therefore, Robbins's report and testimony were an exercise of her employment duties and therefore conditionally privileged and exempt from a suit for defamation. The plaintiff also failed to prove economic loss resulting from any alleged defamation by Robbins.
2. Motion for sanctions. Under Rule 9A(b)(6) of the Massachusetts Rules of the Superior Court, "[t]he court need not consider any motion or opposition that fails to comply with the requirements of this rule." The plaintiff's motion for sanctions was not a part of the summary judgment record. Therefore, the motion judge did not need to decide the motion once summary judgment had entered. The matter is not properly before us.
3. Due process claim. Because the plaintiff was no longer an employee, he was not entitled to the continuation of his disciplinary hearing as his employment contract did not include the ability to continue such hearings after termination of employment, as discussed supra. Therefore, his claim of deprivation of due process fails. Otherwise, the plaintiff raises this claim of liability for the first time on appeal, and therefore it is waived. See Martins v. University of Mass. Med. Sch., 75 Mass.App.Ct. 623, 634 n.17 (2009) ("[N]ew theories of liability raised for the first time on appeal are deemed waived"). ,
The defendants' motion to strike is allowed. The panel has not considered evidence not presented at the summary judgment hearing.
The plaintiff's requests for attorney's fees and costs are denied.
Judgment affirmed.