Opinion
PC-2022-00466
01-31-2023
JOHN DOE, Plaintiff, v. STATE OF RHODE ISLAND, DIVISION OF THE STATE POLICE; JAMES MANNI, Colonel of the State Police, Defendants.
For Plaintiff: Carly B. Iafrate, Esq. For Defendant: D. Peter DeSimone, Esq. Vincent F. Ragosta, Jr., Esq. Adam Sholes, Esq.
ATTORNEYS:
For Plaintiff: Carly B. Iafrate, Esq.
For Defendant: D. Peter DeSimone, Esq. Vincent F. Ragosta, Jr., Esq. Adam Sholes, Esq.
DECISION
GIBNEY, P.J.
The Rhode Island State Police (Defendant) discharged former State Police Officer John Doe (Plaintiff) without the benefit of a hearing as is typically required by G.L. 1956 § 42-28.6-4, the Law Enforcement Officers' Bill of Rights (LEOBOR). In a previous Decision, this Court determined that Plaintiff's right to a LEOBOR hearing-or lack thereof-was dependent in part upon an unresolved issue of material fact that precluded granting Plaintiff's Motion for Summary Judgment. Doe v. State of Rhode Island, Division of the State Police, No. PC-2022-00466, Nov. 28, 2022, Gibney, P.J. (November 2022 Decision). Now before the Court are the parties' subsequent competing cross-motions: 1) Plaintiff's Motion for Reconsideration [of the Court's November 2022 Decision] and Summary Judgment, see generally Pl.'s Mem. in Supp. of Mot. for Recons. &Summ. J. (Pl.'s Mem.); and 2) Defendant's Motion that the Existing "Disputed Issue of Material Fact" [as identified in the Court's November 2022 Decision] Be Determined as a Matter of Law. See generally Def.'s Mem. Jurisdiction is pursuant to G.L. 1956 §§ 8-2-13 and 42-28.6-4.
The full title of this January 17, 2023 filing is "Defendant's Memorandum in Support of His [sic] (1) Motion that the Existing 'Disputed Issue of Material Fact' be Determined as a Matter of Law, and (2) Objection to 'Plaintiff's Memorandum in Support of Motion for Reconsideration and Summary Judgment.'" Now before the Court is Plaintiff's request that this Court reconsider two aspects of that Decision. See generally Pl.'s Mem. First, Plaintiff requests reconsideration of the Court's determination that an issue of material fact remains in dispute. Id. at 2. Plaintiff contends that the Second Disciplinary Dispute occurred on December 25, 2021 and that-even if his Suspension Days were served on December 25 and 26, 2021-the express terms of the Agreement provided that the Probationary Period began only after those suspension days-i.e.,
I
Facts and Travel
The underlying facts and travel of this matter are detailed in the Court's November 2022 Decision. (November 2022 Decision, at 2-4.) There, this Court held that a Disciplinary Consent Agreement (the Agreement) executed as between the parties to resolve an October 2021 disciplinary matter (the First Disciplinary Dispute) was valid and enforceable, including a provision whereby Plaintiff agreed "to be placed on probationary status . . . for.... [three months]" (the Probationary Period). Id. at 3; see also (Pl.'s Mem. in Supp. of Mot. for Summ. J. (Pl.'s Summ. J. Mem.) Ex. C (Agreement), at 4.). During the Probationary Period, Plaintiff would "not be afforded rights under the LEOBOR." (Agreement, at 4.) By the terms of the Agreement, Plaintiff would be suspended without pay for two days, "to be served by January 31, 2022" (Suspension Days), and the Probationary Period would then begin "[u]pon [Plaintiff's] return from serving the suspension days[.]" (Agreement, at 3-4.) The Agreement left open the specific dates of suspension, requiring only that they be served by January 31, 2022. Id. at 3.
Plaintiff was scheduled to work on December 25 and 26, 2021 but was absent from work on those days without prior authorization (the Second Disciplinary Dispute). (Appl. for an Order Directing Def. to Show Cause Why Certain Rights Should Not Be Afforded Pursuant to LEOBOR (Pl.'s Appl.) ¶¶ 32-33; Def.'s Answer ¶ 33.) Defendant "initially marked [December 25 and 26, 2021] as . . . sick day[s]"; but subsequently retroactively recategorized those days as unpaid leave to reflect Defendant's unilateral determination that December 25 and 26, 2021 would be designated as Plaintiff's two Suspension Days under the Agreement. (Aff. of Colonel James Manni ¶¶ 10-11; Pl.'s Appl. ¶ 37; Def.'s Answer ¶ 37.)
In deciding Plaintiff's Motion for Summary Judgment, this Court's November 2022 Decision stated that-as a matter of contract interpretation-it was unclear "whether the parties intended that Defendant could unilaterally and retroactively determine dates of suspension." (November 2022 Decision, at 14.) That issue of intent constituted a material factual dispute that precluded summary judgment "because commencement of the Probationary Period-and hence waiver of Plaintiff's LEOBOR rights-was tied to the dates of his suspension." Id.
The Court also declined to grant summary judgment for Plaintiff based on his argument that the Probationary Period's condition precedent-requiring a "return from serving the suspension days"-necessitated that Plaintiff physically work a shift, especially in light of the unresolved issues of fact surrounding the nature of his work status on December 25 and 26, 2021. Id. at 12-14 ("Assuming [Plaintiff's failure to report to work due to voluntary intoxication] to be true, as we must at this stage, adopting Plaintiff's proposed interpretation would give Plaintiff unilateral authority to avoid the Agreement by repeatedly failing to report to work[.]").
Now before the Court is Plaintiff's request that this Court reconsider two aspects of that Decision. See generally Pl.'s Mem. First, Plaintiff requests reconsideration of the Court's determination that an issue of material fact remains in dispute. Id. at 2. Plaintiff contends that the Second Disciplinary Dispute occurred on December 25, 2021 and that-even if his Suspension Days were served on December 25 and 26, 2021-the express terms of the Agreement provided that the Probationary Period began only after those suspension days-i.e., December 27, at the earliest. Id. at 4. As a result, Plaintiff maintains that it is undisputed that he was not in the Probationary Period on December 25 when the Second Disciplinary Dispute occurred, and he was therefore entitled to a LEOBOR hearing because, by Plaintiff's reading of the Agreement, "the waiver applies to misconduct committed during the probationary period[.]" Id. (emphasis in original). Second, Plaintiff requests that the Court reconsider its assessment of the Agreement's use of the word "return" in conditioning commencement of the Probationary Period on Plaintiff's "return from serving the suspension days." Id. at 5-8.
In response, Defendant both objects to Plaintiff's request for reconsideration and asserts a cross-motion, supported by additional documentary evidence, seeking to resolve the disputed issue of intent in its favor. See generally Def.'s Mem. In light of this expanded evidentiary record, Defendant argues that "the superintendent's unilateral authority to 'retroactively' determine [P]laintiff's suspension days is clear and determinable as a matter of law[.]" Id. at 1.
II
Standards of Review
A
Motion for Reconsideration
"Although . . . the Superior Court Rules of Civil Procedure say nothing [about] a motion to reconsider," our Supreme Court has noted that "'a party's motion to reconsider has been treated by this Court as a motion to vacate a judgment under Rule 60(b).'" Atmed Treatment Center, Inc. v. Travelers Indemnity Co., 285 A.3d 352, 359 (R.I. 2022) (quoting McLaughlin v. Zoning Board of Review of Town of Tiverton, 186 A.3d 597, 604 n.9 (R.I. 2018)). "'It is well settled that [a] motion to vacate a judgment is left to the sound discretion of the trial justice[.]'" Id. (quoting Renewable Resources, Inc. v. Town of Westerly, 110 A.3d 1166, 1171 (R.I. 2015)).
However, consideration of a motion to reconsider under the Rule 60(b) standard applies only to a final judgment, order, or proceeding and does not apply to interlocutory orders. Id. at 361-62. "In contrast to final judgments, '[i]nterlocutory orders are those that are provisional or temporary, or that decide some intermediate point or matter but are not a final decision of the whole matter.'" Id. at 361 (quoting Coit v. Tillinghast, 91 A.3d 838, 843 (R.I. 2014)). "A trial justice retains the authority 'to modify any interlocutory judgment or order prior to final judgment.'" Id. at 362 (quoting Renewable Resources, Inc., 110 A.3d at 1171).
Nevertheless, "a motion for reconsideration should not be undertaken lightly" and "a trial justice must balance the interests of the parties against a thoughtful determination that a change of course is proper under the circumstances[.]" Id. Further, the trial justice must rely on the parties' original arguments when reconsidering a prior judgment and not on any "after-the-fact arguments" advanced for the first time in the motion for reconsideration. Id. (citing Cochran v. Quest Software, Inc., 328 F.3d 1, 11 (1st Cir. 2003) ("It is generally accepted that a party may not, on a motion for reconsideration, advance a new argument that could (and should) have been presented prior to the district court's original ruling.")).
B
Motion for Summary Judgment
Although Defendant does not caption its cross-motion as being one for summary judgment, its request that this Court determine an issue as a matter of law in light of the available evidence in the record is, in substance, a motion for partial summary judgment. "Summary judgment is appropriate when . . . the court determines that there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law." Delta Airlines, Inc. v. Neary, 785 A.2d 1123, 1126 (R.I. 2001); see also Super. R. Civ. P. 56(c). "In deciding a motion for summary judgment, [a] [c]ourt views the evidence in the light most favorable to the nonmoving party." Mruk v. Mortgage Electronic Registration Systems Inc., 82 A.3d 527, 532 (R.I. 2013). Moreover, "'the moving party bears the initial burden of establishing the absence of a genuine issue of fact.'" McGovern v. Bank of America, N.A., 91 A.3d 853, 858 (R.I. 2014) (quoting Robert B. Kent et al., Rhode Island Civil Procedure § 56:5, VII-28 (West 2006)). The "nonmoving party bears the burden of proving by competent evidence the existence of a disputed issue of material fact and cannot rest upon mere allegations or denials in the pleadings, mere conclusions[,] or mere legal opinions." Mruk, 82 A.3d at 532 (internal quotation omitted).
III
Analysis
A
Plaintiff's Motion for Reconsideration
1
Plaintiff's Probation Status as of December 25, 2021
Plaintiff's request for reconsideration of this Court's November 2022 Decision with respect to his probation status as of December 25, 2021 contains two fatal flaws. First, he now focuses on the date of Second Disciplinary Dispute-December 25, 2021-as being the operative date for purposes of assessing his right to a LEOBOR hearing when, in fact, the key date is January 20, 2022-when Defendant took disciplinary action. (Pl.'s Appl. ¶ 49.) Second, he represents the Agreement's waiver provision as applying "to misconduct committed during the probationary period," when no such language appears in the Agreement. Compare Pl's Mem. 4 (emphasis in original) with Agreement, at 4 ("[D]uring the Probationary Period, [Plaintiff] shall not be afforded rights under the LEOBOR.").
Our Supreme Court recently stated that a trial court is prohibited from considering any "after-the-fact arguments" advanced for the first time in a motion for reconsideration. Atmed Treatment Center, Inc., 285 A.3d at 362. Here, Plaintiff states without citation that "[t]he parties agree that for [Plaintiff] to waive his rights in connection with alleged misconduct that occurred on December 25, he would have had to be on probation on December 25." (Pl.'s Mem. 4.) The Court can identify no such "agreement" on this point from the record. Further, contrary to Plaintiff's current focus on his status as of December 25, 2021, Plaintiff's original argument before this Court was that "he was not on probation on January 20 when he was discharged[.]" (Pl.'s Summ. J. Mem. 7 (emphasis added).) Similarly, in his original application for relief, Plaintiff stated that he is entitled to relief "because [he] was not on probation at the time of termination[.]" (Pl.'s Appl. ¶ 58(d) (emphasis added).) Atmed Treatment Center, Inc. forecloses consideration of Plaintiff's "after-the-fact" argument, which now attempts to shift focus from the date of termination to the date of the Second Disciplinary Dispute. Atmed Treatment Center, Inc., 285 A.3d at 362.
Plaintiff misconstrues Defendant's prior statement that Defendant will comply with § 42-28.6-4 if this Court orders Plaintiff's reinstatement. (Pl.'s Mem. 4 n.4 (quoting Def.'s Mem. in Reply to Pl.'s Mem.... in Supp. of Obj. to Def.'s Mot. for Partial Summ. J. 2).) If the Court orders Plaintiff's reinstatement, it is because Plaintiff was not on probation as of January 20, 2022 and is entitled to a LEOBOR hearing. Defendant's acknowledgment of that possible outcome is not an admission.
In any event, Plaintiff's revised emphasis on December 25, 2021 is misplaced. Arguably, Plaintiff was entitled to the protections of § 42-28.6-2 as of December 25, 2021 when he was under investigation for the Second Disciplinary Dispute. See § 42-28.6-2 ("Conduct of investigation"). He does not contest, however, that he received written notice in accordance with § 42-28.6-2(4)-(5) prior to his December 29, 2021 interrogation. (Pl.'s Appl. ¶¶ 38-41.) Instead, Plaintiff's claim is that he did not receive the LEOBOR protections of § 42-28.6-4 prior to his termination on January 20, 2022. Id. ¶¶ 50, 55, 58(d); see also § 42-28.6-4 ("Right to hearing- Notice request for hearing-Selection of hearing committee"). It is therefore inaccurate for Plaintiff to argue that the waiver provision applies only "to misconduct committed during the probationary period[.]" (Pl's Mem. 4 (emphasis in original).) The Agreement states that "during the Probationary Period, [Plaintiff] shall not be afforded rights under the LEOBOR." (Agreement, at 4.) By its plain terms, the waiver provision is concerned specifically with Plaintiff's LEOBOR rights during the probationary period-not the timing of his alleged misconduct; namely: 1) his § 42-28.6-2 rights during investigation and interrogation; and 2) his § 42-28.6-4 rights prior to any disciplinary action "which would be considered a punitive measure," i.e., his January 20, 2022 termination. See § 42-28.6-4(a); see also Agreement, at 4 ("[D]uring the Probationary Period, [Plaintiff] shall not be afforded rights under the LEOBOR."); Roadepot, LLC v. Home Depot, U.S.A., Inc., 163 A.3d 513, 519 (R.I. 2017) ("When there is only one reasonable interpretation of a contract, the contract is deemed unambiguous."). Plaintiff's Application for relief complains only that he was denied the latter protections of § 42-28.6-4 when he was terminated on January 20, 2022, and that is precisely what the November 2022 Decision addressed.
Specifically, this Court stated that there existed a disputed issue as to "whether the parties intended that Defendant could unilaterally and retroactively determine dates of suspension." (November 2022 Decision, at 14.) "This dispute is material because commencement of the Probationary Period-and hence waiver of Plaintiff's LEOBOR rights-was tied to the dates of his suspension." Id. An issue of fact that precluded granting Plaintiff's request for summary judgment was whether Plaintiff was on probation on January 20, 2022 such that his contractual waiver of LEOBOR protections was in effect. After reconsideration, the Court declines to revise that determination.
2 Plaintiff's "Return from Serving the Suspension Days"
Plaintiff next asks this Court to reconsider the section of the November 2022 Decision addressing Plaintiff's argument that the Probationary Period had not commenced as of January 20, 2022 because Plaintiff never "returned" to duty. (Pl.'s Mem. 5-8.) Plaintiff's request for reconsideration relies, in part, on a new argument referencing evidence not found in the record before the Court; namely, that Plaintiff was "authorized" by Defendant to be out of work between December 25, 2021 and January 22, 2022. Id. at 5. Accordingly, the Court declines to consider that new argument. See Atmed Treatment Center, Inc., 285 A.3d at 362.
Plaintiff's remaining contention is that Defendant "clearly drafted the [A]greement to make sure probation did not start until [Plaintiff] returned to duty." (Pl.'s Mem. 6 (emphasis in original).) Plaintiff's focus on the Agreement's use of the phrase "return to duty" does not reference the appropriate language of the Agreement. The relevant language is that "[u]pon return from serving the suspension days, [Plaintiff] shall be deemed to be placed on probationary status[.]" See Agreement, at 4; see also November 2022 Decision, at 12. The Agreement's provisions addressing Plaintiff's front desk work assignment and job expectations when he "return[ed] to duty" are distinct from the commencement of the Probationary Period. Naturally, working the front desk necessitates a physical return to duty. The same is not true regarding commencement of the three-month Probationary Period, which was otherwise dependent upon a "return from serving the suspension days" and not a "return to duty." (Agreement, at 4.)
It is also important to clarify that the relevant section of the November 2022 Decision stated that the Court was "[v]iewing the facts in the light most favorable to Defendant"-as the legal standard required when assessing Plaintiff's Motion for Summary Judgment-and, as a result, the Court had to accept as true that "Plaintiff was absent from work on December 25, 2021 due to voluntary intoxication." (November 2022 Decision, at 13.) As such, the Court could not enter summary judgment in favor of Plaintiff based on his failure to "'return from serving the suspension days.'" Id. at 12-14 (quoting Agreement, at 4). Whether Plaintiff was experiencing a "mental health crisis" as of December 25, 2021, had submitted paperwork of a disability, and was authorized to use his entitlement to "unlimited sick leave" remain unresolved issues of fact. Compare Pl.'s Appl. ¶¶ 33, 35, 37, 43-46 and Pl.'s Brief Reply Mem. in Supp. of Mot. for Recons. &Summ. J. (Pl.'s Reply Mem.) Ex. 1 (Gazzero E-mails) (showing Defendant's human resources representative had received medical documentation from Plaintiff that would be "review[ed]"), with Answer ¶¶ 32-37, 43-46 (asserting that Plaintiff failed to report to work due to voluntary intoxication) and Manni Aff. ¶ 10 (same).
B
Defendant's Motion for Partial Summary Judgment
Defendant asks this Court to hold as a matter of law that the parties agreed that Defendant possessed unilateral discretion to determine the Suspension Days to be served pursuant to the Agreement. See Def.'s Mem. 9 ("[T]here can be no questioning of the superintendent's authority to decide whether and when to suspend [Plaintiff] for two days without pay or that [Plaintiff] got all that he bargained for in that regard.").
Defendant begins its argument by referencing the statutes, rules, regulations, and operational instructions that establish Plaintiff's "terms and conditions of employment." (Def.'s Mem. 2.) Importantly, however, Defendant fails to include the Agreement, which undisputedly established certain terms and conditions of Plaintiff's employment relative to the settlement of the First Disciplinary Dispute. See Def.'s Mem. in Supp. of its Obj. to Pl.'s Mot. for Summ. J. 1 (stating Plaintiff "was working under the terms of a Disciplinary Consent Agreement").
Defendant's next reference is to its authority under the LEOBOR to impose "[s]ummary punishment of two . . . days' [sic] suspension without pay . . . for minor violations of departmental rules and regulations." Section 42-28.6-13(b). This reference to LEOBOR is inapposite because the Agreement resolved the First Disciplinary Dispute in lieu of LEOBOR. See Agreement, 3 ("it is now the intention of [Plaintiff] and [Defendant] to fully resolve their disputes and thereby avoid costly and time-consuming LEOBOR-litigation"); id. at 4 ("This Agreement is entered into . . . for the sole purpose of compromising and settling any disputes pertaining to and stemming from the Investigation and the charging of [Plaintiff] with a LEOBOR Complaint and Notice recommending discipline from [Defendant]."). The issue in dispute is not whether Defendant's unilateral determination of the Suspension Days was permitted by LEOBOR-the Agreement supplanted LEOBOR with respect to the First Disciplinary Dispute. Id. at 5 ("This Agreement constitutes the entire agreement between [Plaintiff] and [Defendant.]"). The issue in dispute is whether Defendant's unilateral action was permitted under the Agreement.
The Court also notes that there is no evidence in the record as to whether the First Disciplinary Dispute involved a "minor violation[] of departmental rules and regulations" subject to the summary suspension powers referenced in § 42-28.6-13. The Agreement makes no reference to § 42-28.6-13 in its discussion of the Suspension Days and otherwise states that Defendant would "vigorously prosecute [Plaintiff]" in the absence of the Agreement. (Agreement, 2-3.)
Defendant next cites various sources to show that its "superintendent clearly had the authority to decide whether to suspend [Plaintiff.]" (Def.'s Mem. 4 (emphasis in original).) This argument again misses the mark. Whether Defendant had authority to suspend Plaintiff is not in dispute-paragraph two of the Agreement unambiguously provided that "[Plaintiff] shall be suspended for two . . . days without pay." (Agreement, at 3.) The disputed issue concerns the parties' intent in determining when those Suspension Days would occur. See November 2022 Decision, at 14 ("It is unclear whether . . . the parties intended that Defendant could unilaterally and retroactively determine dates of suspension."). The provided statutes, rules, and regulations are "certainly . . . pieces of extrinsic evidence that should be considered to resolve the ambiguity." Inland American Retail Management LLC v. Cinemaworld of Florida, Inc., 68 A.3d 457, 464 (R.I. 2013). "Nonetheless, it is not appropriate to consider this evidence on a motion for summary judgment because the intent of the parties is a question of fact." Id. Similarly, the narrative of events and various exhibits that Defendant provides "may well assist as an interpretive aid to determine the parties' intent, but, again, such a determination cannot properly be resolved at the summary judgment stage." Id. at 465.
Even if summary judgment was appropriate, Plaintiff has satisfied his burden as the nonmoving party to show the continued existence of a disputed fact; namely, that the December 21-22, 2021 e-mail exchange between Plaintiff and Defendant's representative shows Plaintiff identifying and suggesting specific dates of suspension, which may support a finding of an intent to mutually agree on dates of suspension. See Pl.'s Brief Reply Mem. (citing Weaver Aff. Ex. A (Dec. 21-22, 2021 E-mail Exchange) (showing Plaintiff e-mailing suggested suspension dates of January 4 and 18, 2022)); Mruk, 82 A.3d at 532 ("In deciding a motion for summary judgment, [a] [c]ourt views the evidence in the light most favorable to the nonmoving party."); see also In re Dissolution of Anderson, Zangari &Bossian, 888 A.2d 973, 977 n.3 (R.I. 2006) (quoting Restatement (Second) Contracts § 202 cmt. g (1981) ("The parties to an agreement know best what they meant . . . and thus the parties' subsequent course of performance may be instructive in contract interpretation.").
IV
Conclusion
For the reasons stated, this Court denies Plaintiff's Motion for Reconsideration and Summary Judgment. The Court also denies Defendant's Motion to determine the existing disputed issue of material fact as a matter of law, which the Court has treated as a Motion for Partial Summary Judgment. Counsel shall prepare the appropriate orders for entry.