Pisano v. Ambrosino et al

Filing 109

Judge Nathaniel M. Gorton: ENDORSED MEMORANDUM & ORDER entered granting in part and denying in part 95 Motion for Summary Judgment. "defendants motion for summary judgment (Docket No. 95) is, with respect to the claims pursuant to (or for):1) 42 U.S.C. § 1983 (Count 1), ALLOWED;2) 42 U.S.C. § 1985 (Count 2), ALLOWED;3) wrongful termination (Count 3), ALLOWED as to defendants Michael Murphy and Paul Capizzi, but otherwise DENIED;4) intentional infliction of emotional distress (Count 4), ALLOWED; and5) negligent infliction of emotional distress (Count 5), ALLOWED. So ordered. (Caruso, Stephanie)

United States District Court
District of Massachusetts
)
)
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Plaintiff,
)
)
v.
)
)
TOM AMBROSINO, MICHAEL MURPHY,
)
PAUL CAPIZZI and CITY OF REVERE, )
)
Defendants.
)
)
)
CLIFFORD PISANO,

Civil Action No.
13-11409-NMG

MEMORANDUM & ORDER
GORTON, J.
This case involves allegations of retaliation against city
officials who purportedly decided against reappointing plaintiff
to another annual term as a school crossing guard due to his
efforts to unionize the crossing guards.
Pending before the Court is defendants’ motion for summary
judgment.

For the reasons that follow, the motion will be

allowed, in part, and denied, in part.
I.

Background and procedural history
A.

Parties

Plaintiff Clifford Pisano (“Pisano” or “plaintiff”) is a
resident of Revere, Massachusetts who worked as a crossing guard
for the Revere public schools from 1994 to 2010.

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Defendant Thomas Ambrosino (“Ambrosino”) was the mayor of
the City of Revere during the period of the alleged events.

As

mayor, Ambrosino was authorized to appoint and to reappoint
individuals to work as school crossing guards every school year.
Defendant Michael Murphy (“Murphy”) was the Captain of the
Revere Police Department during the period of the alleged
events.
Defendant Paul Capizzi (“Capizzi”) is the city solicitor
for the City of Revere.
Defendant City of Revere employed the individual defendants
Ambrosino, Murphy and Capizzi during the period of the alleged
events.
B.

The decision not to reappoint plaintiff to a new term

In June, 2010, Ambrosino decided not to reappoint plaintiff
to a new term as a crossing guard for the 2010-2011 academic
year.

Plaintiff asserts that Ambrosino made that decision

solely on the basis of plaintiff’s union-related activities.
Defendants deny that assertion and insist that Ambrosino
decided against reappointment based upon plaintiff’s
disciplinary record which included rules violations, suspensions
and a “pattern of poor behavior”.

Defendants claim that

Ambrosino found plaintiff unsuited to a position that would
require him to direct traffic, guide children, interact with the
public and follow the directives of the police department.
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They

deny that his union-related activities had anything to do with
their failure to reappoint.
According to defendants, plaintiff’s disciplinary record
lists incidents in which Pisano:
1)

received a one-day suspension in December, 2008 for
insubordination and disrespectful behavior towards his
supervisor,

2)

was the subject of a formal complaint by a “senior
citizen volunteer” in August, 2009 who claimed that
plaintiff chastised and assaulted her for wearing a
florescent vest while she helped pedestrians cross the
street near a farmer’s market,

3)

failed to report to Captain Murphy’s office at the
Revere police station in September, 2009 to discuss the
formal complaint against him,

4)

refused to accept notice from “Sergeant Graf” of a
scheduled disciplinary hearing while plaintiff was on
duty and “became disrespectful to the sergeant in
public”,

5)

agreed to two 10-day suspensions during a subsequent
meeting with Captain Murphy and a union representative
from the American Federation of State, County and
Municipal Employees (“AFSCME”), as a result of
disciplinary charges of a) assaulting a senior citizen,
b) failing to report to the police station as ordered
and c) refusing to accept service and behaving
disrespectfully toward a sergeant,

6)

directed vehicle traffic through red lights and
confronted drivers, without authority, several times
during the 2009-2010 academic year, and

7)

unlawfully audio-taped a union membership meeting at the
Revere police station despite demands that he not do so.

Plaintiff does not dispute defendants’ summary of his
disciplinary record other than by general assertions in his

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affidavit that 1) defendants charged him with assault without
sufficient cause and for the sole purpose of interfering with
his employment and unionizing efforts and 2) Ambrosino falsely
accused him of unlawful recording the union membership meeting.
C.

Procedural history

Plaintiff initially filed an administrative complaint with
the Massachusetts Division of Labor Relations Board in
September, 2009 alleging that the Revere School Department
retaliated against him for his unionizing activities when they
suspended him for one day in 2008 and ten days in 2009.
administrative complaint was dismissed in June, 2010.

That
The

Employment Relations Board affirmed the dismissal in February,
2011.
AFSCME filed a grievance on plaintiff’s behalf with the
American Arbitration Association (“AAA”) and represented him at
an AAA hearing in January, 2011.

The arbitrator dismissed that

grievance in March, 2011 upon finding that plaintiff was not a
union member of AFSCME at the time the grievance was filed.
Plaintiff sought to vacate the decision of the arbitrator
by commencing an action in Massachusetts Superior Court.

That

case was dismissed in October, 2011 after the court found that
plaintiff was not a proper party to the arbitration and thus
could not appeal the decision.

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In June, 2013, plaintiff commenced the instant action in
federal court by filing a complaint, pro se, alleging that
defendants unlawfully refused to reappoint him as a crossing
guard.

He claims that defendants did so in response to his

successful efforts in helping the crossing guards to form a
union in April, 2010.
The complaint contends that defendants “fired” him in June,
2010 out of retaliation and without providing him a hearing or
opportunity to call witnesses in his defense.

Plaintiff claims

that 1) Murphy falsely charged him with an assault and
2) Ambrosino and Capizzi were aware of and encouraged Murphy’s
unlawful conduct and supported plaintiff’s termination in
furtherance of an “outright Conspiracy to violate [his]
Procedural and Substantive Due Process Rights”.

Plaintiff

further alleges that Ambrosino falsely accused him of unlawfully
recording a union membership meeting at the Revere police
station.
The complaint asserts five counts pursuant to
1) 42 U.S.C. § 1983 for violations of plaintiff’s First,
Fifth and Fourteenth Amendment rights due to defendants’
malicious and corrupt failure to reappoint him,
2) 42 U.S.C. § 1985 for defendants’ conspiracy to initiate
false criminal complaints against him and deprive him of
his substantive and procedural due process rights and
3) state law for wrongful termination, intentional
infliction of emotional distress (“IIED”) and negligent
infliction of emotional distress (“NIED”).
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Defendants jointly moved for summary judgment in May, 2016.
II.

Motion for summary judgment
A.

Legal standard

The role of summary judgment is “to pierce the pleadings
and to assess the proof in order to see whether there is a
genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d
816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc.,
895 F.2d 46, 50 (1st Cir. 1990)).

The burden is on the moving

party to show, through the pleadings, discovery and affidavits,
“that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a).
A fact is material if it “might affect the outcome of the
suit under the governing law”. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).

A genuine issue of material fact

exists where the evidence with respect to the material fact in
dispute “is such that a reasonable jury could return a verdict
for the nonmoving party.” Id.
If the moving party satisfies its burden, the burden shifts
to the non-moving party to set forth specific facts showing that
there is a genuine, triable issue. Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986).

The Court must view the entire record in

the light most favorable to the non-moving party and make all

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reasonable inferences in that party's favor. O'Connor v.
Steeves, 994 F.2d 905, 907 (1st Cir. 1993).

Summary judgment is

appropriate if, after viewing the record in the non-moving
party's favor, the Court determines that no genuine issue of
material fact exists and that the moving party is entitled to
judgment as a matter of law.
B.

Application
1.

42 U.S.C. § 1983

Section 1983 provides a cause of action against persons who
violate federal law while acting under color of state law. 42
U.S.C. § 1983.

Plaintiff asserts § 1983 claims against the

three individual defendants in their official capacities and
against the City of Revere.
Municipal officials acting in their official capacities
qualify as “persons” subject to suit under § 1983 in cases in
which the municipality would be “suable in its own name.” Monell
v. Dep’t of Social Servs. of City of New York, 436 U.S. 658, 690
n.55 (1978)(“[O]ur holding today that local governments can be
sued under § 1983 necessarily decides that local government
officials sued in their official capacities are ‘persons’ under
§ 1983 in those cases in which, as here, a local government
would be suable in its own name.”).
To establish municipal liability for a constitutional
violation by a municipal officers, a plaintiff must show that
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1) the harm to him was caused by the constitutional violation,
2) a municipal policy or custom led to that violation and caused
the plaintiff’s injury and 3) the municipality was “deliberately
indifferent” to the affected constitutional right. Young v. City
of Providence, 404 F.3d 4, 25-26 (1st Cir. 2005).
Defendants assert, and the Court agrees, that plaintiff has
not
identif[ied] offensive customs or policies of the City
or [demonstrated] how these policies or customs caused
him injury.
Defs.’ Mem. Summ. J. 9, ECF No. 96.

Plaintiff thus cannot

establish municipal liability based upon the record before the
Court.

Accordingly, the Court will allow summary judgment in

favor of defendants on the § 1983 claim.
2.

42 U.S.C. § 1985

Section 1985(3) provides a remedy for a conspiracy to
violate civil rights if the plaintiff establishes 1) a
conspiracy, 2) a conspiratorial purpose to deprive him of the
equal protection of the laws, 3) an overt act in furtherance of
the conspiracy and 4) an injury to his person or property, or a
deprivation of a constitutionally protected right. Perez-Sanchez
v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008).
The second requirement of conspiratorial purpose requires
“some racial, or perhaps otherwise class-based, invidiously
discriminatory animus”. Id.

The United States Supreme Court has
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rejected the notion that § 1985 protect[s] against
discrimination on the basis of union membership . . .
[because it] decided that § 1985(3) did not reach
conspiracies motivated by economic or commercial animus.
Id. at 108 (citing United Bros. of Carpenters & Joiners v.
Scott, 463 U.S. 825, 838 (1983)).
Here, plaintiff claims that defendants conspired to
“initiat[e] and maintain[] false criminal complaints against him
and [deny] him substantive and procedural due process rights”.
Plaintiff does not contend that defendants did so with a
racially discriminatory motive and he identifies no other
“class-based, invidiously discriminatory animus” in his
pleadings.
The only “class-based animus” that the Court can discern
from plaintiff’s submissions is an alleged discriminatory motive
based upon his union-related activities.

Section 1985(3) does

not protect against such a discriminatory motive. See United
Bros, 463 U.S. at 838.

Accordingly, the Court will allow

defendants’ motion for summary judgment on the § 1985 claim.
3.

Wrongful termination

Count 3 of the complaint purports to assert a claim for
wrongful termination against all defendants pursuant to Chapters
149, 150 and 151 of the General Laws of Massachusetts.
Because plaintiff alleges that he was “terminated" from his
position as a crossing guard solely due to his union-related

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activities, his state claim of wrongful termination is governed
by the burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Wynn & Wynn, P.C. v.
Mass. Comm’n Against Discrimination, 431 Mass. 655, 665-67
(2000), overruled on other grounds by Stonehill Coll. v. Mass.
Comm’n Against Discrimination, 441 Mass. 549, 562(2004)
(distinguishing between discrimination cases involving
purportedly illegitimate motives and “mixed motive” cases
involving both legitimate and illegitimate motives).
Under the McDonnell Douglas framework, plaintiff must first
make a prima facie showing that defendants terminated him based
upon discriminatory or retaliatory motives. Id. at 665.

If he

succeeds, the burden shifts to his employer to present a
legitimate and non-discriminatory reason for the termination,
after which plaintiff must prove that the proffered
justification was merely a “pretext” for discriminating against
him. Id. at 665-666.
In this case, plaintiff does not dispute defendants’
contention that neither Murphy nor Capizzi is subject to the
wrongful termination claim because neither was his employer or
authorized to make employment decisions.

The Court will allow

summary judgment on the wrongful termination claim with respect
to Murphy and Capizzi.

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The parties do, however, dispute the critical issue of
whether the alleged justification of the remaining defendants
for the termination was legitimate or pretextual.

Plaintiff

insists that they terminated him based upon his participation in
union-related activities.

Defendants respond that Ambrosino

decided against reappointing plaintiff on the basis of his
disciplinary record.

The Court will leave the determination of

that genuine issue of material fact to the jury.
Accordingly, summary judgment on the wrongful termination
claim will be allowed with respect to defendants Murphy and
Capizzi but denied with respect to Ambrosino and the City of
Revere.
4.

Intentional infliction of emotional distress

A plaintiff claiming intentional infliction of emotional
distress must show that 1) the defendant intended to cause, or
should have known that his conduct would cause, emotional
distress, 2) the conduct was extreme and outrageous, 3) the
conduct caused the plaintiff distress and 4) the plaintiff
suffered severe distress. Sena v. Commonwealth, 417 Mass. 250,
263-64 (1994).

Conduct is “extreme and outrageous” if it is

“beyond all bounds of decency and [] utterly intolerable in a
civilized community.” Id. at 264.

The conduct must constitute

more than “mere insults, threats, or annoyances.” Id.

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Defendants contend that there are no facts in evidence
suggesting that plaintiff suffered “severe” emotional distress.
Plaintiff does not address that contention in his pleadings.
Although plaintiff does allege generally that defendants’
conduct caused him “substantial pain and suffering” (in the
complaint) and “great humiliation and anxiety and . . . great
emotional distress” (in his answer to the interrogatories), he
does not set forth any specific facts in his pleadings that
would create a genuine, triable issue of fact with respect to
the severity of his distress.

Accordingly, the Court will allow

the motion for summary judgment with respect to the IIED claim.
5.

Negligent infliction of emotional distress

To prevail on a claim of negligent infliction of emotional
distress, a plaintiff must establish 1) negligence, 2) emotional
distress, 3) causation, 4) physical harm manifested by objective
symptoms and 5) that a reasonable person would have suffered
emotional distress under the same circumstances. Opalenik v.
LaBrie, 945 F. Supp. 2d 168, 196 (D. Mass. 2013) (quoting
Sullivan v. Boston Gas Co., 605 N.E.2d 805, 807 (Mass. 1993)).
Here, as defendants point out, plaintiff presents no
evidence that he suffered physical harm as a result of the
emotional distress caused by the alleged misconduct.

He does

not dispute defendants’ assertion that the lack of objective

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manifestation of physical harm is fatal to his claim.

The Court

will allow summary judgment to defendants on the NIED claim.

ORDER
For the foregoing reasons, defendants’ motion for summary
judgment (Docket No. 95) is, with respect to the claims pursuant
to (or for):
1)

42 U.S.C. § 1983 (Count 1), ALLOWED;

2)

42 U.S.C. § 1985 (Count 2), ALLOWED;

3)

wrongful termination (Count 3), ALLOWED as to
defendants Michael Murphy and Paul Capizzi, but
otherwise DENIED;

4)

intentional infliction of emotional distress (Count
4), ALLOWED; and

5)

negligent infliction of emotional distress (Count 5),
ALLOWED.

So ordered.
/s/ Nathaniel M. Gorton____
Nathaniel M. Gorton
United States District Judge
Dated June 1, 2016

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