United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS FOR
Dennis Saylor IV United States District Judge
a civil action brought by a former firefighter (and a company
that he owns and operates) for alleged violations of his
constitutional rights and for various state-law claims.
Plaintiffs Andrew Davison and Cape Cod BioFuels, Inc., have
filed suit against the Town of Sandwich; George H. Dunham,
the Sandwich Town Manager; George Russell, the former Fire
Chief; Thomas Corriveau, the former Deputy Fire Chief; and
Jason Viveiros, a lieutenant in the Fire Department.
November 2011, Davison injured his shoulder in the line of
duty and took an extended injury leave. While on leave, he
received his full salary and benefits. He also performed work
for his company, Cape Cod BioFuels, Inc., during the leave.
Among other things, he promoted the company and appeared in
multiple news stories about it while on injury leave.
in July 2012, Davison put up a sign on his property urging
town residents to “vote ‘no'” on a
proposed new public safety complex. Town officials, who
supported the complex, were unhappy with the sign.
Nonetheless, Davison was not ordered to take it down. The
proposal was defeated at a town meeting in May 2013.
Town of Sandwich Fire Department has a rule that prohibits
employees from performing work of any kind while on injury
leave. Town officials requested that Davison stop working
while on leave, which he refused to do. He also provided
incomplete and untimely medical information in response to
requests from the town for more information about his claimed
disability. Davison was reprimanded for violating the rule in
September 2012. Nonetheless, he continued to work for his
company while on injury leave. The town hired an investigator
to follow Davison, who observed him working at the company,
lifting large objects, and moving without any discomfort or
restriction. Eventually, in April 2014, Davison was fired for
violation of town rules and policies and insubordination, as
well as making a threatening telephone call.
now contends, in substance, that he was fired in retaliation
for putting up the sign, in violation of his exercise of his
First Amendment rights of free speech. All defendants have
moved for summary judgment as to all claims. For the
following reasons, the motion will be granted in part and
denied in part.
Davison was hired as a full-time professional firefighter in
the town of Sandwich, Massachusetts, in 2002. (Davison Dep.
at 19). He is also a resident of Sandwich. (Def. Ex. 8 at
2007, Davison co-founded a company called Cape Cod BioFuels,
Inc., that manufactures biodiesel from cooking oil. (Davison
Dep. at 29-30). He owns fifty percent of the company, and
serves as both its secretary and the chairman of its board.
(Id.). In those capacities, he performs various
administrative and sometimes physical tasks for the company,
and is responsible for overseeing day-to-day operations.
(Davison Aff. ¶ 5).
Town of Sandwich is a Massachusetts town, with a town meeting
form of government. George H. Dunham is the Town Manager.
(Def. SMF ¶ 6).
Russell was the Fire Chief of Sandwich until his retirement
in January 2014. (Russell Dep. at 12). Thomas Corriveau was
the Deputy Fire Chief until his retirement in June 2014.
(Corriveau Dep. At 8). Jason Viveiros is a lieutenant in the
fire department and serves as the local president of the
firefighters' union. (Def. SMF ¶ 2).
Fire Department Rules and CBA
Gen. Laws ch. 41, § 111F governs leave with pay for
injured firefighters. It states, in substance, that
firefighters injured in the line of duty shall be granted
leave without loss of pay for the period of their
incapacitation. Mass. Gen. Laws. ch. 41, § 111F.
22.5 of the Sandwich Fire Department's Rules and
Regulations prohibits firefighters who are receiving full pay
while on § 111F leave from working “at any other
job whether paid or not paid.” (Def. Ex. 5).
full-time Sandwich firefighters, except the Chief and Deputy
Chief, are required to join the firefighters' union. (Pl.
SMF ¶ 49). The employment of all union members is
governed by a collective bargaining agreement negotiated
between the union and the town. (Id.). Article IV,
§ 2 of the relevant agreement states that the town's
Board of Selectmen shall “promulgate reasonable rules
and regulations pertaining to the operation of the Fire
Department and the conduct of employees.” (Pl. Ex. 8 at
5). However, Article II, § 2(D) of the agreement states
that its provisions “shall supersede any conflicting
Town Bylaw, rule or regulation to the extent permitted by
Chapter 150E of the General Laws.” (Id. at 3).
Article XXV of the agreement sets out the grievance
procedures to be used “to settle all alleged grievances
of members of the Department.” (Id. at 21). It
states that any grievance concerning an alleged violation of
the agreement shall be presented first to the Fire Chief,
then to the Town Manager, then to the Board of Selectmen,
and, if still not resolved, the union may then submit the
matter for arbitration. (Id. at 21-22).
IX of the collective bargaining agreement between the
firefighters' union and the town includes a provision
that is virtually identical to Mass. Gen. Laws ch. 41, §
111F, and states that it is “intended to conform with
the provisions of Section 111F.” (Pl. Ex. 8 at 11).
November 2, 2011, Davison injured his right shoulder in the
line of duty while lifting an elderly man into an ambulance.
(Davison Dep. at 80). He was granted injury leave two days
later, on November 4. (Def. SMF ¶ 12). It is undisputed
that he received full compensation and benefits during his
periods of injury leave.
on leave, Davison continued to work for Cape Cod BioFuels. He
contends that the work was necessary to keep the business
going. (Davison Aff. ¶ 6).
early 2012, Davison stopped by the fire station to drop off a
note from his doctor regarding the status of his injury, as
is required for employees on injury leave. (Davison Aff.
¶ 6). According to Davison, Deputy Chief Corriveau,
after inquiring about the status of his injury, asked how
things were “at the shop”-which Davison
interpreted to mean Cape Cod BioFuels- and asked if he was
able to keep things running with the injury. (Id.).
Davison responded that the business was running just fine, as
others were able to do any physical work that needed to be
done, and he was only doing paperwork. (Id.). At
that time, according to Davison, Corriveau did not raise any
objection to Davison's involvement with Cape Cod BioFuels
while on injury leave. (Id.).
The News Articles about Cape Cod BioFuels
still on leave, Davison hired a public relations firm to help
promote Cape Cod BioFuels. (Davison Dep. at 118). The firm
set up interviews for Davison with various local newspapers
and magazines. (Id.). As a result, in the summer of
2012, a series of articles were published about Cape Cod
BioFuels featuring statements by Davison about his
involvement with the company. (Def. Ex. 8 at
10-22). Two of the articles included photographs
of what appeared to be Davison wearing a Cape Cod BioFuels
uniform and standing in front of a company truck.
(Id. at 13, 17). As noted, at the time, Davison was
on leave arising out of his ostensible inability to work.
Davison's Sign Opposing a New Public Safety
Town of Sandwich had been working for several years on plans
for a new joint fire and police station, commonly referred to
as the public safety complex, to replace its small and
outdated facilities. (Dunham Dep. at 34-37, 46-47). It was
estimated that the project would cost approximately $30
million. (Id. at 50). According to Davison, on July
4, 2012, the town circulated pamphlets with information about
its plan for the new complex. (Davison Dep. at 177-78). That
was, according to him, when he first learned of the plan.
end of July 2012, after learning about the proposed project,
Davison put up a large sign in his front yard that read
“Vote No Public Safety Complex.” (Davison Dep. at
159, 175, 178). Davison's home was located on a busy
road that defendants Russell and Corriveau drove down
regularly. (Dunham Dep. at 160; Russell Dep. at 160;
Corriveau Dep. at 78). According to Davison, the sign
remained up, with occasional breaks, between July 2012 and
December 2012, and again in the spring of 2013. (Davison Dep.
at 147-49, 178-79, 218).
of July and August 2012
in July 2012, Jason Viveiros-a lieutenant in the fire
department and president of the firefighters'
union-called Davison. According to Davison, Viveiros was
“screaming” at him to take down the sign.
(Davison Dep. at 101-02). Also according to Davison, Viveiros
told him that unless he took down the sign, his job and
chances of receiving a promotion could be in jeopardy.
(Id. at 103).
August 3, 2012, Davison again went to the fire station to
drop off a note concerning his medical condition. (Davison
Dep. at 99-100). The note, which was from Cape Cod
Orthopaedics and Sports Medicine, was dated August 2, 2012.
It stated: “[R]emain out of work until further notice.
Daily non-physical activity is not impeding his return to
work at Sandwich Fire Department.” (Def. Ex. 8 at 25).
at the fire station, Deputy Corriveau spoke to Davison.
Corriveau's description of the meeting, which he
memorialized on August 7, was as follows:
1 had a conversation with [Davison] concerning recent
published articles detailing the company in which he has
partial ownership. . . .
He had already heard that I was upset about the recent
stories prior to the start of our conversation. I told him
that the articles describing how well his business was doing
were inappropriate as he was on injury leave. He told me he
was a partner in a business and he has every right to speak
to the media concerning its operation. He went as far as to
say they had hired a public relations firm to further their
FF Davison had no remorse or felt any responsibility in
[sic] this inappropriate behavior. He stated that
there had been a previous case in which someone taught a CPR
class while out on injury and he had every right to run his
company while out. . . .
I tried to convey that recent changes in the public pension
retirement system were the direct result of actions similar
to the one of which we were speaking of. His reply was that
he does not care as “he will not be here much
longer.” On leaving my office he stated “you will
be seeing me on WCVB's Chronicle TV program[”] as
they had videoed a story on his business. His arrogant sense
of entitlement that was shown [sic] was remarkable.
(Def. Ex. 8 at 23).
to Davison, Deputy Corriveau told him during the meeting
“it would behoove [him] to keep [his] mouth
shut.” (Davison Dep. at 113). Also according to
Davison, Corriveau mentioned that the town was not happy with
his sign, and that if he “continued on such a
path” it would hurt his chances of receiving a
promotion and he would be “scrutinized going
forward.” (Id. at 100). Corriveau denies
making any such statements, and contends that he did not even
become aware of Davison's sign until November 2012.
(Corriveau Dep. at 98-99).
in the day on August 3, 2012, Chief Russell gave a letter to
Davison stating the following:
This letter is to notify you that you are in violation of
Article 22 Section 5 entitled “Sickness and Line of
Duty Injuries” in the current Department Rules and
Regulations dated December 5, 1991. Article 22 Section 5
states “Members on sick or injured leave shall not work
any other job whether paid or not paid.”
It has become public knowledge that you are violated this
specific section of the Rules and Regulations. You are hereby
ordered to immediately cease any further activity that would
violate the Department Rules and Regulations.
Any further violations of the Department Rules and
regulations will lead to disciplinary action including but
not limited to suspension and/or termination.
(Def. Ex. 8 at 24).
August 15, 2012, Chief Russell sent another letter to
Davison. That letter recounted Davison's August 3 meeting
with Deputy Corriveau and stated that “[t]he events of
August 3, 2012 are troubling for a number of reasons and
require immediate action on your part.” (Def. Ex. 8 at
25). The letter continued:
. . . I hereby order you to immediately cease and desist from
any employment activities during any remaining period of
leave of absence pursuant to Chapter 41. As you know, such
employment is expressly prohibited by Rule 22.5 of the
Sandwich Fire Department Rules and Regulations. Rule 22.5
states the following: “Members on sick or injured leave
shall not work at any other job whether paid or not.”
Accordingly, to the extent that you have been employed by any
company for the period of November 02, 2011 through the
present, you have been in violation of this Department's
Rules and Regulations and you must immediately terminate any
conduct which continues to violate Rule 22.5.
(Def. Ex. 8 at 26). The letter went on to state that
“the August 02, 2012 note from your medical provider
does not sufficiently address your current physical condition
as it relates to your ability to return to your employment
responsibilities with the Town of Sandwich, ” and in
particular it did not “address the critical question of
what condition, if any, currently prevents your return to
work” and provided “no detail regarding an
anticipated return to work date.” (Id.). It
requested an appropriate medical note within seven days.
then sent a copy of Chief Russell's August 15 letter to
Viveiros, the union president. (Davison Dep. at 321).
Viveiros forwarded the letter to the union's attorney,
Howard Lenow. (Id. at 324). Davison later met with
Viveiros and Lenow and expressed his belief that he was being
singled out for enforcement of Rule 22.5 because of his
position on the public safety complex. (Id. at
328-29). Lenow responded that there was nothing that the
union could do for Davison until the town formally
disciplined him. (Id. at 329).
August 20, Deputy Corriveau interviewed Davison as part of
his investigation. (Def. Ex. 8 at 27; Davison Dep. at 131).
Corriveau asked Davison about his work for Cape Cod BioFuels
while on injury leave. (Davison Dep. at 132). Davison
responded that he had performed a number of administrative
tasks for the company, but denied doing any physical labor
while on leave. (Def. Ex. 8 at 27).
August 24, 2012, Davison provided a note to the fire
department from Dr. Thomas Kinkead at Cape Cod Orthopedics
and Sports Medicine. The note stated that due to a continuing
deficit in strength and the need for additional physical
therapy, Davison could not be evaluated for a return to work
until a subsequent office visit in three and a half weeks.
(Def. Ex. 8 at 29).
Davison's Return to Work and the Events of September
August 29, Davison's doctor provided a note that cleared
him to return to work without restrictions on September 4,
2012. (Def. Ex. 8 at 30). Around that same time, Corriveau
completed his investigation and sent a report of his findings
to Chief Russell. (Def. Ex. 8 at 31). Davison returned to
work on September 4. (Id. at 5).
September 27, 2012, Russell sent a letter to Davison.
(Id. at 5, 36-37). The letter stated that
Davison's work for Cape Cod BioFuels, which had been
documented in newspaper and online reports, created a
“direct conflict with Rule 22.5 of the Sandwich Fire
Department Rules and Regulations.” (Id. at
37). The letter further stated that it “constitute[d] a
written reprimand for a direct violation of Department Rules
and Regulations.” (Id.).
sent a copy of Russell's reprimand letter to Viveiros,
who said he would talk to attorney Lenow about it. (Davison
Dep. at 331-32). Viveiros later told Davison that, according
to Lenow, the letter could not be the basis of a grievance.
(Id. at 332).
September 28, 2012, Chief Russell issued a memorandum to all
Sandwich firefighters. The memorandum stated that its purpose
was “to reinforce that the Town of Sandwich Fire
Department continues to strictly enforce and expects
compliance by all members of the Department” with all
department rules and regulations. (Def. Ex. 8 at 38). It
specifically “highlight[ed]”Rule 22.5.
(Id.). Among other things, it stated that
“Rule 22.5 prohibits any employment by any member of
the Department during the period of any leave of absence for
sickness or injury, regardless of whether such employment
provides compensation and/or requires any form of physical
labor or exertion.” (Id.).
Whether Rule 22.5 Had Been Enforced in the
appears that Davison was the first Sandwich firefighter to be
reprimanded for violating Rule 22.5. (Russell Dep. at 76).
According to Chief Russell, the rule did not have to be
enforced because it had never been violated. (Id. at
76-77). It appears that since September 2012, three
firefighters other than Davison have been investigated or
disciplined for violating the rule. (Dunham Dep. at 66-73;
Russell Dep. at 70-73).
firefighter testified that prior to 2012 it was “common
knowledge, ” despite the rule, that working while on
injury leave was permissible as long as it did not aggravate
injuries or prolong the period of leave. (Lahteine Dep. at
29). Three firefighters testified that they had engaged in
non-physical work while out on leave and not been
reprimanded. (Maciel Dep. at 37-40; Lahteine Dep. at 21-23;
LeVangie Dep. at 19-20). According to those firefighters,
Deputy Corriveau knew of their outside work, but told them in
substance that as long as their work was not physical and did
not aggravate their injuries or otherwise prolong their
absence, it was not a problem. (Maciel Dep. at 37-40;
Lahteine Dep. at 30; LeVangie Dep. at 19-20).
Developments Concerning Davison's Sign
to Chief Russell and Deputy Corriveau, they first became
aware of Davison's sign in November 2012. (Russell Dep.
at 157-58; Corriveau Dep. at 98-99). Russell saw the sign
periodically when driving by, but testified that he
“didn't care” and that the measure
“wasn't going to pass anyway.” (Russell Dep.
December 15, 2012, a news article was published in the Cape
Cod Times about the sign. (Def. Ex. 10). The article
described Davison as the first Sandwich firefighter to
publicly demonstrate opposition to the public safety complex.
(Id.). It also quoted Town Manager Dunham as