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Murphy v. City of Newton

United States District Court, D. Massachusetts

December 11, 2017

MICHAEL MURPHY, Plaintiff,
v.
CITY OF NEWTON et al., Defendants.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge.

         I. Introduction

         Plaintiff Michael Murphy (“Murphy”) has filed this lawsuit against Defendants City of Newton (the “City”) and Bruce Proia (“Proia”), chief of the Newton Fire Department, (collectively, “Defendants”) alleging Fourth and Fourteenth Amendment violations brought pursuant to 42 U.S.C. § 1983 (Count I), violation of the Massachusetts Civil Rights Act (Count III), a Monell claim under 42 U.S.C. § 1983 (Count IV), violation of Article 14 of the Massachusetts Declaration of Rights (Count V), violation of the Massachusetts Privacy Act (Count VII) and intentional infliction of emotional distress (Count VIII). D. 16. Defendants have moved for summary judgment on all counts, D. 56, and Murphy has moved for summary judgment on all claims other than Counts VII and VIII, D. 62. For the reasons stated below, the Court ALLOWS Defendants' motion and DENIES Murphy's motion.

         II. Standard of Review

         The Court grants summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law.” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)) (internal quotation mark omitted). The movant bears the burden of demonstrating the absence of a genuine issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations or denials in her pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but “must, with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor.” Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). “As a general rule, that requires the production of evidence that is ‘significant[ly] probative.'” Id. (alteration in original) (quoting Anderson, 477 U.S. at 249). The Court “view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).

         III. Factual Background

         The following facts are taken from the parties' Rule 56.1 statements and accompanying documents and are otherwise undisputed unless noted. Murphy has been employed by the City of Newton Fire Department (the “Department”) for nineteen years and currently serves as a lieutenant. D. 58 ¶¶ 1, 2; D. 73 ¶¶ 1, 2. The Department is headed by Fire Chief Proia, who has served in his current role since 2011. D. 65 ¶ 3. Proia is responsible for both the promulgation and modification of departmental policies as well as for the issuance of general personnel orders, so long as they are approved by the City's mayor. Id. ¶ 7; D. 65-3 at 6-7. From March 2009 until August 2015, Murphy was assigned to Station 1, which was under the command of Carmine D'Agostino (“D'Agostino”). D. 58 ¶ 5; D. 73 ¶ 5. While both men initially worked well with one another, “friction” developed. D. 65 ¶ 18. During his time with the Department, Murphy has been subject to numerous disciplinary actions. D. 58 ¶ 3; D. 73 ¶ 3. Notably, Murphy was put under a return to work agreement in 2005 after the Department discovered that he suffered from a substance abuse problem. D. 58 ¶ 3; D. 73 ¶ 3. He was also cited for leaving the fire station without permission in 2007. D. 58 ¶ 3; D. 73 ¶ 3.

         On May 9, 2015, Murphy was on duty at Station 1 for a twenty-four hour shift. D. 58 ¶ 6; D. 65 ¶ 20; D. 73 ¶ 6. D'Agostino was also on assignment that day. D. 65 ¶ 20. In the early afternoon, Murphy informed a junior firefighter, Cliff Arpino (“Arpino”), that he would be briefly stepping out of the fire station. D. 58 ¶ 7; D. 65 ¶ 21; D. 73 ¶ 7. While Arpino was under the impression that Murphy had permission to leave the station, Murphy had not informed D'Agostino that he would be doing so. D. 58 ¶¶ 8, 9; D. 73 ¶¶ 8, 9. Soon thereafter, a fire alarm came into the station, which Murphy became aware of either by radio or by the station's building speaker, and Murphy returned to the building to respond to the call. D. 58 ¶ 11; D. 65 ¶ 21; D. 73 ¶ 11. D'Agostino noticed that Murphy was not in the station at the time the fire alarm sounded and saw Murphy entering the station soon after the alarm went off. D. 58 ¶ 13; D. 73 ¶ 13. Following the call (which turned out to be a false alarm), D'Agostino approached Arpino to find out what Murphy was doing prior to the alarm. D. 65 ¶¶ 22, 23. Arpino informed him that Murphy had planned on leaving the station to purchase a coffee and that Arpino assumed Murphy had sought permission to do so beforehand. Id. ¶ 23. After learning that Murphy had left the station without authorization, D'Agostino called Deputy Chief Michael McNamara (“McNamara”), D'Agostino's supervisor and the shift commander at that time, to share his intention to reprimand Murphy. D. 58 ¶ 15.

         Following this conversation, of which Murphy somehow became aware, D'Agostino witnessed Murphy again leaving the fire station. D. 65 ¶ 25. McNamara called Murphy to discuss the situation. Id. ¶ 26. During the course of this phone call, McNamara described Murphy as being agitated. D. 58 ¶ 17; D. 65 ¶ 26; D. 73 ¶ 17. Additionally, Murphy relayed to McNamara that he was leaving the station because he was “going to fucking kill someone.” D. 58 ¶ 17; D. 65 ¶ 26; D. 73 ¶ 17. McNamara instead suggested that Murphy complete the remainder of his shift in a different fire station, which Murphy did without incident. D. 58 ¶ 18; D. 65 ¶ 27; D. 73 ¶ 18. McNamara then advised D'Agostino of what had transpired with Murphy, including the fact that Murphy had threatened to kill someone. D. 58 ¶ 19; D. 65 ¶ 30; D. 73 ¶ 19. On May 12, 2015, D'Agostino sent an e-mail to Proia, McNamara and Chief of Operations Gino Lucchetti (“Lucchetti”) expressing concern with Murphy's comment that he would “fucking kill someone.” D. 58 ¶ 21; D. 65 ¶ 37; D. 73 ¶ 21. D'Agostino noted that Murphy was scheduled to work the following day and that he had anxiety over “the safety of the men on duty in the city tomorrow” in light of Murphy's statement. D. 63-7 at 2; D. 65-12 at 2. In response, the City of Newton's Human Resources Department organized a meeting the next day to discuss the events that had occurred. D. 58 ¶ 22; D. 73 ¶ 22.

         On May 13, 2015, Murphy, Proia, Human Resources Employment Manager Teri Struth (“Struth”), Newton fire fighter and union President Tom Lopez (“Lopez”) and Interim Director of Health and Human Services Linda Walsh (“Walsh”) convened to discuss the threat attributed to Murphy and the relationship between Murphy and D'Agostino. D. 58 ¶ 23; D. 65 ¶ 49[1]; D. 73 ¶ 23. When asked whether he made the threat, Murphy stated, “I don't believe I did. I might have. I don't think so.” D. 58 ¶ 24; D. 73 ¶ 24. Proia found Murphy's conduct during the meeting to be “cocky, confident, evasive, untruthful and bizarre” in his interactions with those present. D. 65 ¶ 52. Similarly, Walsh found that Murphy was not acting “normally” during the meeting. Id. ¶ 53. Struth indicated to Proia that she thought Murphy was behaving “really, really bizarrely” and “really not typical, ” which Proia acknowledged. Id.; D. 65-5 at 25. At the meeting, Struth informed Murphy that to return to work, he would be required to complete a fitness for duty examination with the City's Employee Assistance Psychologist, Dr. Bruce Cedar (“Dr. Cedar”). D. 58 ¶ 25; D. 73 ¶ 25. Dr. Cedar had helped Murphy with his substance abuse problems in the past and Murphy indicated at the meeting that he was not opposed to meeting with the doctor. D. 58 ¶ 26; D. 73 ¶ 26.

         Following the meeting, Murphy contacted Dr. Cedar and then went to Dr. Cedar's office to schedule an appointment. D. 65 ¶ 62. Dr. Cedar expressed in his later report that he was concerned that Murphy was trying to “play” him and had contacted him prior to a formal appointment to put his “spin” on the events that had led to the order of the fitness for duty test in the first place. D. 58 ¶ 29; D. 63-8 at 4; D. 73 ¶ 29. He noted that his suspicion was bolstered by the fact that Murphy had contacted him before the City did so. D. 58 ¶ 27; D. 63-8 at 4; D. 73 ¶ 27.

         Murphy met with Dr. Cedar for his appointment on May 15, 2015. D. 58 ¶ 30; D. 65 ¶ 63; D. 73 ¶ 30. During the appointment, Dr. Cedar asked Murphy to provide a urine sample for drug testing. D. 58 ¶ 31; D. 65 ¶ 64; D. 73 ¶ 31. Dr. Cedar's reason for asking Murphy to submit to a drug test were: (1) Murphy had been referred to him for a fitness of duty evaluation and he wanted to rule out all possible factors that might have influenced Murphy's behavior; (2) Murphy had a history of substance abuse issues and Dr. Cedar wanted to ensure he had not relapsed; and (3) multiple individuals present at the May 13th meeting had observed Murphy's behavior to be erratic. D. 58 ¶ 32; D. 65 ¶ 64; D. 73 ¶ 32. Murphy refused to submit to drug testing, explaining that there was a provision of the collective bargaining agreement between the City and the firefighters' union that dealt with drug testing and Dr. Cedar's request did not comply with those terms. D. 58 ¶ 33; D. 65 ¶ 65; D. 73 ¶ 33. Struth explained to Murphy that he would not be allowed to return to work until he was cleared as fit by Dr. Cedar. D. 65 ¶ 73.[2]

         On May 22, 2015, Murphy returned to Dr. Cedar's office and Dr. Cedar again requested that Murphy submit to a drug test. D. 58 ¶ 39; D. 73 ¶ 39. At this appointment, Murphy agreed to submit a urine sample. D. 58 ¶ 40; D. 73 ¶ 40. In his May 25, 2015 report, Dr. Cedar cleared Murphy as fit for duty. D. 63-8; D. 65-14. The report noted that the urine sample “would not be tested until the contract issues were worked out between the City and the Union.” D. 63-8 at 4; D. 65-14 at 4. Dr. Cedar further explained that although he was clearing Murphy as fit, he “encourage[d] the City and the Union to come to terms on the testing of the sample, ” as he “would rather that [his] ‘Yes, [Murphy] can return to work' was contingent on a negative drug test.” D. 63-8 at 6; D. 65-15 at 6.

         The sample was eventually tested, despite the objections levied by Lopez (Murphy's union representative). D. 58 ¶ 42; D. 65 ¶ 97; D. 73 ¶ 42. The test came back positive for marijuana and Proia placed Murphy on paid administrative leave and scheduled a disciplinary hearing. D. 58 ¶¶ 43, 44; D. 65 ¶ 105; D. 73 ¶¶ 43, 44. The disciplinary hearing took place on June 23, 2015, although the parties were not able fully to resolve the issues and a second hearing date was scheduled for late July. D. 58 ¶¶ 48, 52; D. 73 ¶¶ 48, 52. On June 24, 2015, however, Proia issued three letters to Murphy that: (1) dropped the drug test charge against him and returned him to work effective immediately; (2) dropped the charge against him concerning the threatening statement that he made and returned him to work effective immediately; and (3) charged Murphy with a two-day suspension for leaving the station without permission. D. 58 ¶ 53; D. 65 ¶¶ 115, 120; D. 73 ¶ 53.

         Also in June 2015, Murphy's union filed two grievances concerning the collection and testing of Murphy's urine sample. D. 65 ¶ 121. Struth denied these grievances on August 13, 2015 and the matter proceeded to binding arbitration on June 23, 2016. Id. ¶¶ 122, 123. The arbitrator found that the City violated the screening procedures in the collective bargaining agreement. D. 58 ¶ 55; D. 73 ¶ 55. The City has appealed the arbitrator's findings. Id.; D. 65-29.

         IV. Procedural History

         Murphy instituted this action on July 17, 2015. D. 1. On April 27, 2017, Murphy voluntarily dismissed Counts II and VI of the amended complaint. D. 55. The Court heard the parties on the pending summary judgment motions and took these matters under advisement. D. 77.

         V. ...


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