Brennan v. City of Everett

180 N.E.3d 1038 (Table)

Andrew BRENNAN

v.CITY OF EVERETT & another.¹

21-P-403

Appeals Court of Massachusetts.

Entered: January 26, 2022.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Andrew Brennan, filed a complaint in the Superior Court against the defendants, the city of Everett (city) and the Everett fire chief, Anthony Carli, arising out of his employment as a firefighter in the Everett fire department (department). Brennan alleged violation of the Massachusetts Whistleblowers Act, G. L. c. 149, § 185, against the city; violation of G. L. c. 151B, § 4 (4A), for interference, and violation of G. L. c. 151B, § 4, for retaliation, both against Carli; and violation of the Federal Family and Medical Leave Act (FMLA), 29 U.S.C. § 2615 (a) (1), against the city and Carli. Following a hearing, the judge denied the defendants’ motion for summary judgment pursuant to Mass. R. Civ. P. 56, 365 Mass. 824 (1974), or in the alternative for judgment on the pleadings pursuant to Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974), or to dismiss for failure to state a claim, pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974).³ The defendants then filed this interlocutory appeal. As discussed in detail infra, our review is limited to whether the judge properly denied summary judgment on Carli's claim of qualified immunity. Concluding that Carli has not shown as a matter of law that he is entitled to qualified immunity, we affirm.

Background.⁴ We view the facts in the light most favorable to Brennan as the nonmoving party. See Earielo v. Carlo, 98 Mass. App. Ct. 110, 111 (2020). In November 2017, Brennan, a captain in the department, was working a fire detail at a construction site when he suggested that an ambulance be called for an injured employee; the paramedic on site refused to do so, and shouted at Brennan. Brennan reported the incident to a deputy chief, and a few days later, he made a report to the Office of Emergency Medical Services (OEMS) and copied Carli on the report. Carli met with Brennan and advised him that he broke the chain of command by reporting the incident directly to OEMS. Thereafter Carli showed increasing hostility towards Brennan. In 2018, Carli disciplined Brennan for abusing sick time; the discipline was ultimately rescinded.

In May 2019, Brennan experienced stress due to medical situations involving his family. Carli met with Brennan, at the behest of the union president following a conversation between Carli and the union president about Brennan's stress. Carli told Brennan that it was brought to his attention that Brennan was "not okay" during roll call. In response, Brennan explained his circumstances, and asked for leave under the FMLA. Carli failed to provide Brennan with any FMLA information. Instead, Carli arranged for a mental health evaluation and drug test for Brennan later that day. After being evaluated, Brennan was cleared to return to work immediately. When Brennan returned to the fire station, Brennan was met by several Everett police officers who were standing near his car; Brennan's firefighter gear had been placed inside the car. Police officers seized Brennan's personal firearms, (both those lawfully stored in his car at the fire station and those at his residence) and his license to carry. At the time the complaint in this action was filed, those items had not been returned to Brennan. A few days later, Brennan was evaluated by a psychiatrist who advised him to remain out of work for six weeks. In September 2019, Brennan was reevaluated and cleared to return to work. Notwithstanding that, Carli scheduled an independent medical examination (IME) with a different psychiatrist in October 2019, who concluded that Brennan was not fit to return to duty based on reports of Brennan's erratic behavior and his denial of the same.

In December 2019, Brennan filed a charge of discrimination with the Massachusetts Commission Against Discrimination (MCAD) against Carli and the psychiatrist who conducted the October 2019 IME. In December 2019 and February 2020, another doctor conducted another IME; this doctor concluded that there was insufficient evidence for him to opine on whether Brennan was fit for duty. In March 2020, Carli sent a letter to Brennan that he was to return to work. The letter advised Brennan that if he was "involved in any incidents of concern ... [he would] be subject to further appropriate action ... including, depending on the circumstances, an involuntary separation from employment."

Discussion. 1. Doctrine of present execution. Although the defendants raise multiple issues, only one -- Carli's interlocutory appeal of the denial of his summary judgment motion insofar as it asserts the affirmative defense of qualified immunity -- is properly before us under the doctrine of present execution. "As a general rule, there is no right to appeal from an interlocutory order unless a statute or rule authorizes it." Wilbur v. Tunnell, 98 Mass. App. Ct. 19, 20 (2020), quoting Maddocks v. Ricker, 403 Mass. 592, 597 (1988). "In considering claims of ... qualified immunity by governmental entities or employees, we have interpreted the immunity to provide protection from suit, not merely from liability; therefore, we have applied the doctrine of present execution to allow an interlocutory appeal from an order denying a motion to dismiss or for summary judgment brought by someone asserting such immunity." Lynch v. Crawford, 483 Mass. 631, 635 (2019).

The doctrine of qualified immunity is an affirmative defense available to an individual person, not a defense for an agency or municipality. See O'Malley v. Sheriff of Worcester County, 415 Mass. 132, 142 (1993) ("qualified immunity is based on the defendants’ personal defenses and not those of the government agency"). As the judge recognized, the city's claims do not fit in to the doctrine of qualified immunity and are therefore not before us.

2. Qualified immunity. The judge denied Carli's motion for summary judgment reasoning that Carli did not establish that he was entitled to invoke the affirmative defense of qualified immunity because Brennan's complaint alleged violations of clearly established law. We review the denial of a motion for summary judgment de novo under the familiar standard. See Lynch, 483 Mass. at 641. See also Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).

Qualified immunity "shields government officials, performing discretionary tasks, from civil liability ... insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known" (citation omitted). Earielo, 98 Mass. App. Ct. at 115. "For a right to be clearly established, the unlawfulness of the defendants’ conduct must be apparent based on then existing law" (quotation and citation omitted). Id. When resolving qualified immunity issues at the summary judgment stage, we begin by "asking whether the facts adduced by the plaintiff make out a violation of a constitutional [or statutory] right and if so, whether that right was clearly established at the time of [the] defendant's alleged misconduct" (quotation and citation omitted). Id. "A negative answer to either query results in the application of qualified immunity in favor of the defendant official." Id. "The second prong of the analysis requires a showing that, to overcome immunity, ‘it would be clear to a reasonable [official] that his conduct was unlawful in the situation he confronted.’ " Id., quoting Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009). "The objective legal reasonableness of the defendant's actions is a question of law for the courts." Earielo, supra. However, "[i]t is not necessary for courts to have previously considered a particular situation identical to the one faced by the government official." Id. at 118, quoting Caron v. Silvia, 32 Mass. App. Ct. 271, 273 (1992). "It is enough, rather, that there existed case law sufficient to clearly establish that if a court were presented with such a situation, the court would find that the plaintiff's rights were violated" (citation omitted). Earielo, supra. We address each claim in turn.

a. Interference claim. General Laws c. 151B, § 4 (4A) ( § 4 [4A]) makes it "unlawful [f]or any person to coerce, intimidate, threaten or interfere with another person in the exercise or enjoyment of any right granted or protected by [G. L. c. 151B]" (quotation and citation omitted). Lopez v. Commonwealth, 463 Mass. 696, 706 (2012). "There is no question that ... § 4 (4A) prohibits interference with an employee's right to work in an environment free of unlawful handicap discrimination." McLaughlin v. Lowell, 84 Mass. App. Ct. 45, 72 (2013). Here, Brennan alleged that Carli placed him on leave and provided false information to medical evaluators under the false belief that Brennan was mentally unfit. In so doing, Brennan alleged that Carli interfered with his rights by "regarding him as disabled and denying him the full benefits of employment," causing damages. Put another way, Brennan claimed that he had a right to be free of discrimination by Carli based on a perceived or actual disability. See G. L. c. 151B, § 4 (16). On these facts, the complaint made out claims of violations of clearly established law of which a reasonable fire chief would be aware. See Dahill v. Police Dep't of Boston, 434 Mass. 233, 241 (2001) (person may establish he is "regarded" as impaired and protected by G. L. c. 151B where "whether actually impaired or not," he may have been the victim "of stereotypic...