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Higgins v. Town of Concord

United States District Court, D. Massachusetts

July 23, 2018

TOWN OF CONCORD, KATE HODGES, and CHRISTOPHER WHELAN, in their individual capacities, Defendants.



         Pamela Higgins worked for the town of Concord (the Town) for over 25 years before being forced from her job in 2016. She contends that she was terminated in retaliation for taking leave to care for her ill spouse, and she has sued the Town and two supervisors for violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, and for violation of her rights to procedural and substantive due process. The defendants move for summary judgment. They argue that Higgins' claims, if not barred by a “last chance agreement” she signed, lack merit because they did not retaliate against her and she resigned voluntarily. For the reasons discussed below, the motion will be granted on the plaintiff's due process claims but denied on her FMLA claim.

         I. THE PARTIES

         The plaintiff worked for the Town from 1989 to 2016. Defendant Chris Whelan was at all relevant times the Town Manager. Defendant Kate Hodges was at all relevant times the Assistant Town Manager and the plaintiff's direct supervisor.


         Broadly speaking, the plaintiff enjoyed a long and positive tenure with the Town until the middle to latter part of 2015. She began working for the Town's Recreation Department full-time in 1989 and became its Assistant Director in 2000. In January 2015 the director of the Recreation Department retired and Whelan appointed Higgins and another person named Laura Lunig (“Lunig”) to serve as acting co-directors. Defendants' Statement of Material Facts in Support of Their Motion For Summary Judgment (“Defendants' SUF”), at ¶¶ 15-16.

         In February 2015 Whelan appointed Hodges to replace the recently retired Assistant Town Manager. Defendants' SUF, at ¶ 17. As Whelan had observed the Recreation Department to be in some state of disarray, he informed Hodges that past problems the Recreation Department had experienced would not be tolerated in the future. Id., at ¶¶ 19-20. This concern was later conveyed to Higgins. Id., at ¶ 21.

         On June 18, 2015, Hodges and Higgins met for Higgins' annual performance review. Hodges rated Higgins a “top performer, ” an excellent employee and a joy to work with. Id., at ¶ 26; Local Rule 56.1 Statement of Material Facts (“Plaintiff's SUF”), at ¶ 13. On another occasion that same month, Hodges informed Whelan that she thought Higgins was doing well, and that she was excited to see Higgins progress in her role as Acting Director. Plaintiff's SUF, at ¶ 15.

         In July 2015, Lunig resigned and Whelan appointed Higgins as Acting Director on a temporary basis, with plans to evaluate her performance sometime during the fall. Plaintiff's SUF, at ¶ 8; Defendants' SUF, ¶ 39.

         Sadly, however, Higgins was at around the same time experiencing tumult in her personal life. In March 2015, shortly after she had assumed the co-director role, Higgins' husband suffered a heart attack. Defendants' SUF, at ¶ 22. And then, in June 2015, the couple learned that he was suffering from lung cancer. Id., at ¶ 27. Higgins informed Hodges that she would need to attend appointments with her husband. Hodges told her to take all the time she needed and she subsequently informed Whelan that Higgins was taking time to attend medical appointments with her husband. Id., at ¶¶ 27, 28; Plaintiff's SUF, at ¶¶ 16, 20. Hodges also asked Higgins if she wanted to take some time off, work part time or set an alternative work schedule. Plaintiff's SUF, at ¶ 21. Higgins responded that working was therapeutic so she declined to pursue any of those options. Id.; Defendants' SUF, at ¶ 30.

         Beginning in or around the fall of 2015, however, things began to go downhill and a sequence of events, not all necessarily related, led to a breakdown in the parties' relationship. Among them, Higgins in September failed to complete the Recreation Department's capital plan as she had been tasked. She sent an email to Jon Straggas (“Straggas”), another Recreation Department employee, saying “[she] pleaded stupid on the capital plan.” Defendants' SUF, at ¶ 41. Hodges and Straggas instead prepared the capital plan together. Id.

         In November 2015 Hodges became concerned that Higgins was missing scheduled meetings and she asked Foley to compile statistics on Higgins' attendance and absences for the first half of 2015. Id., at ¶ 51. Hodges, Foley and Whelan also met with Higgins to review her performance as the Acting Director. Id., at ¶ 49. Higgins presented her “vison” for the department but Whelan apparently was not impressed. Id.

         At around the same time, Hodges called Straggas to discuss her frustration that Higgins was missing meetings because of her need to spend time with her husband. Hodges was concerned about the department's ability to adequately perform its work and she asked Straggas whether there were any matters within the department that might concern Whelan and that she should know about. Plaintiff's SUF, at ¶¶ 24-25. Straggas raised two matters. He told Hodges that (1) Higgins was playing tennis two mornings a week during business hours, and that (2) another employee was conducting personal training lessons during work in violation of town policy, and with Higgins' knowledge. Id.

         Regarding Higgins' tennis playing, there apparently was some precedent for this practice; the former Recreation Department Director had allowed Higgins to play tennis twice a week during regular business hours and Higgins had simply continued the practice after being made Acting Director. Defendants' SUF, at ¶ 10. Moreover, Higgins worked over 44 hours per week despite playing tennis, and apparently also did not have a set schedule or specified work hours. Plaintiff's SUF, at ¶¶ 18, 32. Nonetheless, Hodges came to believe that Higgins had missed some scheduled work meetings because she was playing tennis, and had moreover misled Hodges to believe she was unavailable or doing something else when in fact she was playing tennis. Defendants' SUF, at ¶¶ 45-47.

         Regarding the report of an employee conducting personal training sessions, the Town initiated an investigation in January 2016. On January 7, 2016, Hodges and Foley interviewed Higgins. Defendant's SUF, at ¶ 60. They instructed her (as they similarly instructed other Town employees with whom they met) not to discuss the investigation with anyone else in the Recreation Department, and to immediately report back if anyone approached to talk about the investigation. Id., at ¶¶ 62-63. Foley indicated that it would be a “fireable offense” if Higgins discussed the investigation with anyone, although Higgins does not remember Foley using that specific phrase. Defendants' SUF, at ¶¶ 64-65.

         Foley and Hodges also interviewed a Town employee named Karen Bush (“Bush”). When they instructed Bush not to discuss the investigation with anyone else, Bush asked whether that meant she also could not discuss the investigation with Higgins. Hodges replied, “It's OK, [P]am knows we are questioning staff.” Bush interpreted this to mean that she was permitted to speak with Higgins about the investigation. Plaintiff's SUF, at ¶ 47. Indeed, Bush thereafter approached Higgins and asked her about the investigation. Id., at ¶ 48. Higgins acknowledged Bush's question but did not make any substantive statements regarding the investigation. Id. For her part, Higgins similarly raised the topic of the investigation in conversation with Straggas. Defendants' SUF, at ¶ 67.

         In response to these interactions, Hodges and Foley confronted Higgins and asked her if she had spoken with anyone about the investigation. Id., at ¶ 68. Higgins initially denied speaking to anyone but then admitted that she did speak to both Straggas and Bush. Id. By contrast, no one confronted Bush even though it was she who had approached Higgins. Similarly, no one apparently confronted Straggas despite the fact that he also spoke to others and even sent text messages regarding that fact to Hodges. Plaintiff's SUF, at ¶ 50.

         At around the same time, on January 6, 2016, Higgins received FMLA paperwork from Foley and submitted a request for intermittent FMLA leave. Defendants' SUF, at ¶ 56. Higgins told Hodges that her husband would begin radiation treatment in five days. Plaintiff's SUF, at ¶ 35. Foley and Hodges both notified Whelan by email later ...

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