Opinion
21-P-403
01-26-2022
Andrew BRENNAN v. CITY OF EVERETT & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Andrew Brennan, filed a complaint in the Superior Court against the defendants, the city of Everett (city) and the Everett fire chief, Anthony Carli, arising out of his employment as a firefighter in the Everett fire department (department). Brennan alleged violation of the Massachusetts Whistleblowers Act, G. L. c. 149, § 185, against the city; violation of G. L. c. 151B, § 4 (4A), for interference, and violation of G. L. c. 151B, § 4, for retaliation, both against Carli; and violation of the Federal Family and Medical Leave Act (FMLA), 29 U.S.C. § 2615 (a) (1), against the city and Carli. Following a hearing, the judge denied the defendants’ motion for summary judgment pursuant to Mass. R. Civ. P. 56, 365 Mass. 824 (1974), or in the alternative for judgment on the pleadings pursuant to Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974), or to dismiss for failure to state a claim, pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). The defendants then filed this interlocutory appeal. As discussed in detail infra, our review is limited to whether the judge properly denied summary judgment on Carli's claim of qualified immunity. Concluding that Carli has not shown as a matter of law that he is entitled to qualified immunity, we affirm.
The judge concluded that summary judgment was not appropriate where there was "no compliant [Superior Court] Rule 9A (b) (5) statement, no affidavit, and multiple disputes of material fact." He further found that "the affirmative defense of qualified immunity [was] not available to the [c]ity and [was] not established as to Carli, because the complaint alleg[ed] violations of clearly established law."
Background. We view the facts in the light most favorable to Brennan as the nonmoving party. See Earielo v. Carlo, 98 Mass. App. Ct. 110, 111 (2020). In November 2017, Brennan, a captain in the department, was working a fire detail at a construction site when he suggested that an ambulance be called for an injured employee; the paramedic on site refused to do so, and shouted at Brennan. Brennan reported the incident to a deputy chief, and a few days later, he made a report to the Office of Emergency Medical Services (OEMS) and copied Carli on the report. Carli met with Brennan and advised him that he broke the chain of command by reporting the incident directly to OEMS. Thereafter Carli showed increasing hostility towards Brennan. In 2018, Carli disciplined Brennan for abusing sick time; the discipline was ultimately rescinded.
For the purposes of their motion, the defendants accepted the pleaded "facts" as true.
In May 2019, Brennan experienced stress due to medical situations involving his family. Carli met with Brennan, at the behest of the union president following a conversation between Carli and the union president about Brennan's stress. Carli told Brennan that it was brought to his attention that Brennan was "not okay" during roll call. In response, Brennan explained his circumstances, and asked for leave under the FMLA. Carli failed to provide Brennan with any FMLA information. Instead, Carli arranged for a mental health evaluation and drug test for Brennan later that day. After being evaluated, Brennan was cleared to return to work immediately. When Brennan returned to the fire station, Brennan was met by several Everett police officers who were standing near his car; Brennan's firefighter gear had been placed inside the car. Police officers seized Brennan's personal firearms, (both those lawfully stored in his car at the fire station and those at his residence) and his license to carry. At the time the complaint in this action was filed, those items had not been returned to Brennan. A few days later, Brennan was evaluated by a psychiatrist who advised him to remain out of work for six weeks. In September 2019, Brennan was reevaluated and cleared to return to work. Notwithstanding that, Carli scheduled an independent medical examination (IME) with a different psychiatrist in October 2019, who concluded that Brennan was not fit to return to duty based on reports of Brennan's erratic behavior and his denial of the same.
In December 2019, Brennan filed a charge of discrimination with the Massachusetts Commission Against Discrimination (MCAD) against Carli and the psychiatrist who conducted the October 2019 IME. In December 2019 and February 2020, another doctor conducted another IME; this doctor concluded that there was insufficient evidence for him to opine on whether Brennan was fit for duty. In March 2020, Carli sent a letter to Brennan that he was to return to work. The letter advised Brennan that if he was "involved in any incidents of concern ... [he would] be subject to further appropriate action ... including, depending on the circumstances, an involuntary separation from employment."
Discussion. 1. Doctrine of present execution. Although the defendants raise multiple issues, only one -- Carli's interlocutory appeal of the denial of his summary judgment motion insofar as it asserts the affirmative defense of qualified immunity -- is properly before us under the doctrine of present execution. "As a general rule, there is no right to appeal from an interlocutory order unless a statute or rule authorizes it." Wilbur v. Tunnell, 98 Mass. App. Ct. 19, 20 (2020), quoting Maddocks v. Ricker, 403 Mass. 592, 597 (1988). "In considering claims of ... qualified immunity by governmental entities or employees, we have interpreted the immunity to provide protection from suit, not merely from liability; therefore, we have applied the doctrine of present execution to allow an interlocutory appeal from an order denying a motion to dismiss or for summary judgment brought by someone asserting such immunity." Lynch v. Crawford, 483 Mass. 631, 635 (2019).
The doctrine of qualified immunity is an affirmative defense available to an individual person, not a defense for an agency or municipality. See O'Malley v. Sheriff of Worcester County, 415 Mass. 132, 142 (1993) ("qualified immunity is based on the defendants’ personal defenses and not those of the government agency"). As the judge recognized, the city's claims do not fit in to the doctrine of qualified immunity and are therefore not before us.
2. Qualified immunity. The judge denied Carli's motion for summary judgment reasoning that Carli did not establish that he was entitled to invoke the affirmative defense of qualified immunity because Brennan's complaint alleged violations of clearly established law. We review the denial of a motion for summary judgment de novo under the familiar standard. See Lynch, 483 Mass. at 641. See also Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).
Qualified immunity "shields government officials, performing discretionary tasks, from civil liability ... insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known" (citation omitted). Earielo, 98 Mass. App. Ct. at 115. "For a right to be clearly established, the unlawfulness of the defendants’ conduct must be apparent based on then existing law" (quotation and citation omitted). Id. When resolving qualified immunity issues at the summary judgment stage, we begin by "asking whether the facts adduced by the plaintiff make out a violation of a constitutional [or statutory] right and if so, whether that right was clearly established at the time of [the] defendant's alleged misconduct" (quotation and citation omitted). Id. "A negative answer to either query results in the application of qualified immunity in favor of the defendant official." Id. "The second prong of the analysis requires a showing that, to overcome immunity, ‘it would be clear to a reasonable [official] that his conduct was unlawful in the situation he confronted.’ " Id., quoting Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009). "The objective legal reasonableness of the defendant's actions is a question of law for the courts." Earielo, supra. However, "[i]t is not necessary for courts to have previously considered a particular situation identical to the one faced by the government official." Id. at 118, quoting Caron v. Silvia, 32 Mass. App. Ct. 271, 273 (1992). "It is enough, rather, that there existed case law sufficient to clearly establish that if a court were presented with such a situation, the court would find that the plaintiff's rights were violated" (citation omitted). Earielo, supra. We address each claim in turn.
a. Interference claim. General Laws c. 151B, § 4 (4A) ( § 4 [4A]) makes it "unlawful [f]or any person to coerce, intimidate, threaten or interfere with another person in the exercise or enjoyment of any right granted or protected by [G. L. c. 151B]" (quotation and citation omitted). Lopez v. Commonwealth, 463 Mass. 696, 706 (2012). "There is no question that ... § 4 (4A) prohibits interference with an employee's right to work in an environment free of unlawful handicap discrimination." McLaughlin v. Lowell, 84 Mass. App. Ct. 45, 72 (2013). Here, Brennan alleged that Carli placed him on leave and provided false information to medical evaluators under the false belief that Brennan was mentally unfit. In so doing, Brennan alleged that Carli interfered with his rights by "regarding him as disabled and denying him the full benefits of employment," causing damages. Put another way, Brennan claimed that he had a right to be free of discrimination by Carli based on a perceived or actual disability. See G. L. c. 151B, § 4 (16). On these facts, the complaint made out claims of violations of clearly established law of which a reasonable fire chief would be aware. See Dahill v. Police Dep't of Boston, 434 Mass. 233, 241 (2001) (person may establish he is "regarded" as impaired and protected by G. L. c. 151B where "whether actually impaired or not," he may have been the victim "of stereotypic assumptions, myths, and fears regarding such limitations"). See also McLaughlin, 84 Mass. App. Ct. at 72 (interference with employee's right to work in environment free of unlawful handicap discrimination is prohibited by G. L. c. 151B, § 4 [4A]).
b. Retaliation claim. "To make out [a] prima facie case [for retaliation under G. L. c. 151B, § 4, the plaintiff] [must] show that he engaged in protected conduct, that he suffered some adverse action, and that a causal connection existed between the protected conduct and the adverse action." Osborne-Trussell v. Children's Hosp. Corp., 488 Mass. 248, 260 (2021). It has long been established that retaliating against employees through negative changes to terms and conditions of employment in response to the exercise of protected rights violates G. L. c. 151B. See Ritchie v. Department of State Police, 60 Mass. App. Ct. 655, 665 (2004) ("Prohibited retaliatory actions are those that constitute a change in working conditions that create a material disadvantage in the plaintiff's employment" [quotation and citation omitted]). See also King v. Boston, 71 Mass. App. Ct. 460, 473-475 (2008). Here, referring to the language in Carli's March 2020 letter cautioning about "any incidents of concern," Brennan claimed that he was threatened with discipline or termination after his return to work, without "any standards or metrics for what would be an incident of concern." Brennan also alleged that Carli unlawfully discriminated against him because Brennan opposed practices that violated G. L. c. 151B and because he filed an MCAD complaint. On these facts, the complaint made out claims of violations of clearly established law, and a reasonable fire chief would have known that he could not "threaten" to discipline Brennan for conduct or impairment protected by G. L. c. 151B or vague "incidents of concern" without reference to department standards or metrics. See King, supra at 475 (question of material fact whether plan to eliminate superior officers’ locker room was retaliatory adverse employment action where "a fact finder could find that the department intended to retaliate against the male superior officers for supporting the complaints of their female union colleagues"); Ritchie, supra at 666 ("Close temporal proximity between the protected activity and the adverse employment action permits an inference of the causal nexus necessary for a finding of retaliation" [citation omitted]).
c. FMLA interference claim. Employers are required to notify employees of their FMLA rights and to respond promptly to employee questions about the applicability and procedures for FMLA leave. See 29 C.F.R. §§ 825.300 (c)(1), (d) (2019). More specifically, an employer must provide an employee who requests FMLA leave with notice of eligibility within five business days absent extenuating circumstances. See 29 C.F.R. § 825.300(b)(1) (2019). Here, Brennan claimed that Carli interfered with his FMLA rights by refusing to provide him with information about these rights upon request thereby causing damages. On these facts, the complaint alleged violations of clearly established law of which a reasonable fire chief would be aware. Cf. Crevier v. Spencer, 600 F. Supp. 2d 242, 257 (D. Mass. 2008) ("employer's failure to explain FMLA procedures can constitute interference with employee's FMLA rights" [quotation and citation omitted]).
Conclusion. On this record, Carli has not established that he is entitled to invoke the affirmative defense of qualified immunity. Accordingly, we affirm the denial of Carli's motion for summary judgment as to that issue. However, nothing herein precludes Carli from asserting a defense of qualified immunity before a fact finder at trial. The denial of the defendants’ motion for summary judgment for the claims asserted against the city are not properly before us, and thus we dismiss so much of the appeal as seeks review of that denial.
So ordered.
affirmed in part; dismissed in part