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Federico v. Town of Rowley

United States District Court, D. Massachusetts

December 7, 2016



          F. Dennis Saylor IV United States District Judge.

         This is an employment dispute. Plaintiff Carmine Federico has brought this action against the Town of Rowley, his former employer, and MaryBeth Wiser, his former supervisor.

         The complaint alleges five claims against both defendants. The first four claims are brought pursuant to the federal Family and Medical Leave Act, 29 U.S.C. § 2615(a), and the Massachusetts Small Necessities Leave Act, Mass. Gen. Laws ch. 149, § 52D, related to time that Federico took off work. Federico contends that defendants interfered with his right to take leave under these laws, and that they subsequently terminated him in retaliation for exercising his right to take leave. The fifth claim is for invasion of privacy under Massachusetts law. Federico contends that Wiser searched his personal effects without permission during his employment.

         Defendants have moved for summary judgment as to all claims. For the following reasons, the motion will be granted.

         I. Factual Background

         The facts are presented in the light most favorable to the plaintiff, except where otherwise noted.

         Carmine Federico began working as the administrative assistant to the superintendent of the Rowley Water Department on September 23, 2013. (Federico Dep. 47). As an administrative assistant, Federico was responsible for providing administrative support to the superintendent, including answering the telephone, scheduling appointments, and preparing minutes for bi-monthly Board of Water Commissioners meetings. (Def. Ex. D 3-4). For nearly a year, Federico held that position without incident. (Federico Dep. 67-68).

         On August 11, 2014, MaryBeth Wiser joined the Rowley Water Department as the new superintendent, and became Federico's direct supervisor. (Id. at 65). Wiser and Federico agree that for the first few weeks of her tenure, the two enjoyed a “friendly” and professional relationship. (Id. at 67-68; Wiser Dep. 39-40).

         A. Federico's Leave on September 2, 2014

         On Tuesday, September 2, 2014, Federico took the day off work in order to care for his elderly mother. (Federico Dep. 77).[1] At that point, Federico had not worked for the Town for one year, and therefore did not have any right to FMLA-protected leave.

         That morning, nine inmates from the Lawrence jail arrived at the Rowley Water Department to perform painting work as part of an ongoing work-release program. (Id. at 88; Wiser Dep. 42-43). The inmates could not be put to work immediately because the Water Department lacked the necessary supplies. (Wiser Dep. 42-44). The Town contends that it was Federico's responsibility to prepare for and direct the inmates' work, and that he knew or should have known that the inmates would arrive on September 2. Federico, however, disputes that contention. (Id. at 42-44; Federico Dep. 89-90).

         Wiser called Federico once or twice over the course of the day and sent him one or two text messages concerning the waiting inmates. (Federico Dep. 93-94).[2] According to Federico, Wiser's messages were difficult to understand due to a bad connection, but from what Federico could understand, Wiser sounded “very overwhelmed, ” “distraught and lost, ” and “irate about something.” (Id. at 94). Federico contends that he returned Wiser's calls, but couldn't get through. (Id.). Failing to get in touch with Federico, Wiser went to Walmart to get the missing supplies. (Wiser Dep. 44).

         B. The Events of September 9 to 23, 2014

         Federico contends that after that day, Wiser's attitude toward him changed, becoming hostile and condescending. (Federico Dep. 100, 108). He contends that Wiser asked him to perform personal and demeaning tasks, such as cleaning dog feces and cigarette ashes from her car. (Id. at 100). Wiser denies that her attitude and disposition toward Federico changed after September 3, and denies that she asked Federico to perform personal favors for her. (Wiser Dep. 51-52).

         On September 9 or 10, 2014, Wiser met with Federico after she “had noticed that [his] job performance was poor.” (Id. at 100). After the meeting, Wiser sent Federico a memorandum to follow up on the meeting and to spell out his duties and responsibilities in detail. (Def. Ex. D). The memorandum, among other things, directed Federico to limit personal telephone calls during work hours, to refrain from taking work home, and to prepare minutes the day after each Board of Water Commissioners meeting is held. (Id. ¶¶ 17, 26, 2, 19).

         By Friday, September 19, Federico had not yet completed six sets of minutes. (Wiser Dep. 73). That day, Wiser instructed Federico to put all other work aside and complete the missing minutes by September 23. (Def. Ex. E). That timeline would allow Federico to work on the minutes all day on September 22. (Id.). Wiser also instructed Federico not to take work home. (Id.). Federico failed to produce the missing minutes by Wiser's deadline, and continued to take work home despite Wiser's directive. (Federico Dep. 235)

         On Monday, September 22, Federico arrived at work around 7:00 a.m., dropped his briefcase on his desk, and briefly left the office to use the men's room and punch in. (Federico Dep. 23). His briefcase contained notes he had prepared for meeting minutes, prescription medications, his notary public seal, and his wallet. (Id. at 15-21). The parties dispute what happened next. Federico contends that he returned to find his briefcase in disarray, and concluded that Wiser must have rummaged through his papers while he was away from his desk. (Id. at 17-18). Wiser contends that she did not examine the contents of the briefcase, but instead took photographs of work-related papers visible in the open bag. (Wiser Dep. 89-91).

         On Tuesday, September 23, Wiser held a meeting at the Water Department office with Federico, Ron Keefe, the union representative, and Amy Lydon, the Assistant Town Administrator, to discuss Federico's job performance. (Def. SMF ¶ 46). The attendees discussed the status of the incomplete Board minutes, the manner in which Federico took telephone messages, and the charge that Federico was taking work home with him. (Wiser Dep. 98). When discussing the prohibition on working from home, Wiser stated that she had seen work papers in Federico's briefcase and that she had taken photographs of the papers. (Federico Dep. 17). Wiser held up her cellular telephone which contained the photographs, but did not show them to anyone at the meeting. (Id. at 21-22; Def. SMF ¶ 51; Pl. Resp. to Def. SMF ¶ 51).

         At about 11:45 a.m., Wiser asked Federico to produce the minutes that he had completed to that point. (Def. SMF ¶ 54). Federico did not produce anything. Instead, he stated that he thought someone must have deleted the drafts. (Id. ¶ 55). At approximately 11:45 a.m., he stated that he was going home sick and that he had recorded the meeting with his cellular telephone. (Id. ¶¶ 54-55). Federico then left the office.

         Federico never returned to work at the Water Department. (Id. ¶ 56). As of September 23, 2014, he had worked at the Water Department for exactly one year. He thus became eligible for FMLA-protected leave on the day he left.

         C. Post-Employment Investigation of Federico's Internet Use

         On September 24, 2014, Water Department staff reviewed Federico's work computer and collected internet browsing history and e-mails sent to and from Federico's work e-mail. (Summit Dep. 10-11). The Town contends that the initial reason for investigating Federico's computer after his departure was to try to find the missing Board minutes. (Eagan Dep. 28).

         The browsing history on Federico's computer revealed that he had spent an enormous amount of time at work viewing websites, bulletin boards, and videos, and sending e-mails that were not work-related. Among other things, he viewed thousands of advertisements for escort services and other sexually explicit advertisements and websites. (Def. Ex. I; Federico Dep. 94). He also watched dozens of hours of episodes of the television show Hogan's Heroes during work hours. (Def. Ex. I).

         The paper printout of Federico's Internet browsing history for the three-month period between June 26 and September 22, 2014, takes up 642 pages of single-spaced text. (Ex. I). A few examples will illustrate how he spent most of each work day.

         As noted, on September 9 or 10, Wiser met with Federico after noticing that his work performance was poor. On the previous day, September 8, Federico first accessed the internet at 7:00 a.m. by logging on to “Free Music Online - Internet Radio - Jango.” (Ex. I-10 at 971). He then spent half an hour logging on to what appears to be private e-mail accounts at and (Id. at 971-72). At 7:29 a.m., he began looking at advertisements on and[3] At 7:30 a.m., he began to view explicit advertisements for casual sexual encounters. (Id. at 972). He continued to look at ads for sexual encounters, websites, and his personal e-mail almost continuously until 11:50 a.m. (Id. at 987).[4] The records of his Internet activity for that morning alone-from 7:30 a.m. to 11:50 a.m.-take up more than 17 single-spaced pages of the record. (Id. at 972-87). At 12:15 p.m., he opened an episode of Hogan's Heroes on YouTube, and presumably began watching it at his desk. There was no Internet activity for the next two hours. At 2:37 p.m., he resumed looking at ads for casual sexual encounters and his personal e-mail accounts. (Id. at 987). At 3:24 p.m., the Internet activity ended. (Id. at 991). The internet history for the 47-minute period between 2:37 p.m. and 3:24 p.m. is more than four pages long. (Id. at 987-91).

         As also noted, on Friday, September 19, Wiser instructed Federico to put all other work aside in order to complete the missing Board minutes. The internet records for the previous day, September 18, are of a similar nature to those described above. (Id. at 1021-23). Although he viewed fewer sexual encounter advertisements that day, he streamed seven separate episodes of Hogan's Heroes. (Id.). On September 19, there were no searches of ads for sexual encounters, but he did watch one episode of Hogan's Heroes. (Id. at 1024). September 20 and 21 were a Saturday and Sunday, respectively, and there was no Internet activity that day.

         On Monday, September 22, 2014-the day of the alleged briefcase search, and the day he was supposed to be finishing the six sets of minutes-Federico began using the internet from his work computer at 7:07 a.m., seven minutes into the workday. (Def. Ex. I-10). At 7:07, he opened three websites simultaneously: one for an episode of Hogan's Heroes on YouTube, one entitled “Free Music Online, ” and one entitled “Water Commissioners' Meeting recorded July 15 - Rowley Community Media.” (Id. at 1024). At 7:28 a.m., Federico opened (Id. at 1025). While on the Backpage website, he visited advertisements for escorts with titles such as “NOTHING *SWEET* LIKE PETITE (new pics!)” and “Fresh meat in town YOUNGFUNSPONTANEOUS.” (Id.). At 7:50 a.m., he opened a new episode of Hogan's Heroes. (Id. at 1025). He opened three additional episodes at 8:24 a.m., 8:52 a.m., and 9:45 a.m. (Id.). At 9:56 a.m., he visited the “Casual Encounters” section of (Id.). Between 9:56 a.m. and 10:06 a.m., he viewed eight more sexually explicit advertisements on Casual Encounters and Backpage, with titles such as “cuddle or whatever ‘w4m, '” “looking to feel used - w4m, ” and “1 in a million hottest Latinas passion available now.” (Id. at 1025-26).[5] At 10:13 a.m., he began watching another episode of Hogan's Heroes, followed by another-his seventh of the day-at 10:42 a.m. (Id. at 1026). At 10:55 a.m., he returned to Craigslist to view additional sexual services ...

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