United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT (DKT. NO. 71)
L. CABELL, U.S.M. JUDGE
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...