United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR
Dennis Saylor IV United States District Judge.
an employment dispute. Plaintiff Carmine Federico has brought
this action against the Town of Rowley, his former employer,
and MaryBeth Wiser, his former supervisor.
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
have moved for summary judgment as to all claims. For the
following reasons, the motion will be granted.
facts are presented in the light most favorable to the
plaintiff, except where otherwise noted.
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).
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.
Federico's Leave on September 2, 2014
Tuesday, September 2, 2014, Federico took the day off work in
order to care for his elderly mother. (Federico Dep.
At that point, Federico had not worked for the Town for one
year, and therefore did not have any right to FMLA-protected
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
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). 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).
The Events of September 9 to 23, 2014
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).
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).
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.
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).
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).
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.
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.
Post-Employment Investigation of Federico's Internet
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).
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).
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
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 Hotmail.com and Yahoo.com. (Id.
at 971-72). At 7:29 a.m., he began looking at advertisements
on Craigslist.com and Backpage.com. 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). 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).
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.
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 Backpage.com. (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 Craigslist.com. (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). 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 ...