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Davison v. Town of Sandwich

United States District Court, D. Massachusetts

March 24, 2017

ANDREW DAVISON and CAPE COD BIOFUELS, INC., Plaintiffs,
v.
TOWN OF SANDWICH, JASON VIVEIROS, THOMAS CORRIVEAU, GEORGE RUSSELL, and GEORGE H. DUNHAM, Defendants.

          MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

          F. Dennis Saylor IV United States District Judge

         This is 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.

         In 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.

         Beginning 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.

         The 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.

         Davison 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.

         I. Background

         A. Factual Background

         1. Plaintiffs

         Andrew 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 54).

         In 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).

         2. Defendants

         The Town of Sandwich is a Massachusetts town, with a town meeting form of government. George H. Dunham is the Town Manager. (Def. SMF ¶ 6).

         George 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).

         3. Fire Department Rules and CBA

         Mass. 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.

         Rule 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).

         All 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).

         Article 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).

         4. Davison's Injury

         On 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.

         While 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).

         In 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.).

         5. The News Articles about Cape Cod BioFuels

         While 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).[1] 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.

         6. Davison's Sign Opposing a New Public Safety Complex

         The 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. (Id.).

         At the 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).[2] 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).[3]

         7.Events of July and August 2012

         Sometime 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).

         On 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).

         While 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 interests.
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).

         According 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).

         Later 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).[4]

         On 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. (Id.).[5]

         Davison 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).

         On 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).

         On 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).

         8. Davison's Return to Work and the Events of September 2012

         On 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).

         On September 27, 2012, Russell sent a letter to Davison. (Id. at 5, 36-37).[6] 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.).

         Davison 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).

         On 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.).

         9. Whether Rule 22.5 Had Been Enforced in the Past

         It 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).

         Another 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).

         10.Further Developments Concerning Davison's Sign

         According 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. at 160-61).

         On 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.).[7] It also quoted Town Manager Dunham as ...


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