Bruce v. Worcester Reg'l Transit Auth.

527 F.Supp.3d 67

Christopher BRUCE and, Amalgamated Transit Union, Plaintiffs,

v.WORCESTER REGIONAL TRANSIT AUTHORITY, Central Mass Transit Management, Inc., David Trabucco, James Parker and Jonathan Church, Defendants.

CIV. ACT. NO. 18-40037-TSH

United States District Court, D. Massachusetts.

Filed March 16, 2021

Harold L. Lichten, Adelaide H. Pagano, Lichten & Liss-Riordan, P.C., Boston, MA, Michael P. Persoon, Pro Hac Vice, Thomas H. Geoghegan, Pro Hac Vice, Willem Bloom, Pro Hac Vice, Despres, Schwartz & Geoghegan, Ltd., Chicago, IL, for Plaintiffs.

Thomas J. Conte, Demitrios M. Moschos, Alexandra N. Mansfield, James P. Hoban, Mirick O'Connell DeMallie & Lougee, LLP, Worcester, MA, for Defendants Worcester Regional Transit Authority, Central Mass Transit Management, Inc., David Trabucco, Jonathan Church.

Christopher B. Kaczmarek, Hilary Detmold, Siobhan M. Sweeney, Littler Mendelson P.C., Boston, MA, Alexandra N. Mansfield, Mirick O'Connell DeMallie & Lougee, LLP, Worcester, MA, for Defendant James Parker.

Memorandum of Decision and Order

Hillman, D.J.

Background

Plaintiffs, Christopher Bruce ("Bruce") and Amalgamated Transit Union¹ , filed this action against the Worcester Regional Transport Authority ("WRTA"), Central Mass Transit Management, Inc. ("CMTM"), David Trabucco ("Trabucco"), James Parker ("Parker"), and Jonathan Church ("Church" and together with, WRTA, CMTM, Trabucco, Parker and Church, the "Defendants") as the result of Bruce's termination from his position as a bus driver. Bruce has asserted claims against all Defendants under 42 U.S.C. § 1983 (Count I) and the Massachusetts Civil Rights Act, Mass.Gen.L. ch. 12, § 11I ("MCRA")(Count II) for violation of his right to free speech. Bruce has also asserted a state law claim against Trabucco and Parker for tortious interference with employment relations (Count III). This Memorandum of Decision and Order addresses the parties’ cross-motions for summary judgment (Docket Nos. 86 and 89). For the reasons set forth below, summary judgment shall enter for the Defendants on all claims.²

Standard of Review

Summary Judgment is appropriate where, "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Carroll v. Xerox Corp. , 294 F.3d 231, 236 (1^st Cir. 2002) (citing Fed. R. Civ. P. 56(c) ). " ‘A "genuine" issue is one that could be resolved in favor of either party, and a "material fact" is one that has the potential of affecting the outcome of the case." Sensing v. Outback Steakhouse of Florida, LLC , 575 F.3d 145, 152 (1^st Cir. 2009) (quoting Calero-Cerezo v. U.S. Dep't. of Justice , 355 F.3d 6, 19 (1^st Cir. 2004) ).

When considering a motion for summary judgment, the Court construes the record in the light most favorable to the nonmoving party and makes all reasonable inferences in favor thereof. Sensing, 575 F.3d at 153. The moving party bears the burden to demonstrate the absence of a genuine issue of material fact within the record. Id., at 152. " ‘Once the moving party has pointed to the absence of adequate evidence supporting the nonmoving party's case, the nonmoving party must come forward with facts that show a genuine issue for trial.’ " Id. (citation to quoted case omitted). " ‘[T]he nonmoving party "may not rest upon mere allegations or denials of the [movant's] pleading, but must set forth specific facts showing that there is a genuine issue of material fact as to each issue upon which [s/he] would bear the ultimate burden of proof at trial." Id. (citation to quoted case omitted). The nonmoving party cannot rely on "conclusory allegations" or "improbable inferences". Id. (citation to quoted case omitted). " ‘The test is whether, as to each essential element, there is "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." ’ " Id. (citation to quoted case omitted). "Cross-motions for summary judgment require the district court to ‘consider each motion separately, drawing all inferences in favor of each non-moving party in turn.’ " Green Mountain Realty Corp. v. Leonard , 750 F.3d 30, 38 (1^st Cir. 2014) (citation to quoted case omitted).

Facts

The WRTA, CMTM and the CBA

The WRTA is a regional transit authority established by Mass.Gen.L. ch. 161B. By statute, the WRTA is expressly prohibited from "directly operat[ing] any mass transportation service" and, therefore engages contractors to operate its transit system. CMTM is a private corporation which is party to a contract with WRTA³ pursuant to which it is responsible for the day-to-day operations of the Worcester regional transit system. Under the contract, CMTM exercises full control over all personnel decisions, including discipline, hiring, and firing. In connection with that authority, CMTM has adopted and enforces its own employment and disciplinary rules and policies. WRTA owns the buses and sets, approves and maintains control of the routes. WRTA also owns the property located at 60 Foster Street, Worcester, Massachusetts (the "Hub") and the Maintenance and Operations Facility, located at 42 Quinsigamond Avenue, Worcester, Massachusetts (the "Maintenance and Operations Facility").

During the relevant period, Parker was the General Manager of CMTM. However, he often signed correspondence identifying himself as General Manager of WRTA and also identified himself as such to other WRTA employees. Similarly, Trabucco signed his emails as an employee of WRTA. Bus drivers such as Bruce are employees of CMTM and receive their W-2 Forms and paychecks from CMTM. The uniforms for CMTM drivers have the WRTA logo, which is required by the CBA, which was negotiated by Amalgamated Transit Union Local #22 ("ATU Local 22"), which had a uniform committee of which Bruce was a member. The CBA requires all operators to wear the proper uniform: "When reporting for duty, Operators shall wear the proper uniform consisting of white shirts with WRTA logo ... Black cloth vests with WRTA logo ...." Buses driven by CMTM operators have the WRTA logo on them, under which logo it reads: "operated by CMTM." WRTA directly pays the nonwage compensation of the drivers, including pensions benefits, which are paid directly out of the WRTA budget, and has secondary liability for wages. CMTM receives guidance from WRTA as to the monetary impact of its contract with ATU Local 22.⁴

Bruce was hired as a Worcester bus driver in 1976 by the entity which was the predecessor to the WRTA. From 1994 to 2013, he was a full-time business agent for ATU Local 22. In 2013 Bruce gave up his full-time position as ATU Local 22's business agent and was replaced by Ken Kephart, ("Kephart") who continues to hold the position. Bruce became the ATU Local 22 president, an unpaid, elected position and went back to driving a bus.⁵ On July 13, 2015, CMTM and ATU Local 22 entered into a Collective Bargaining Agreement for the period from July 1, 2015 to July 1, 2018 (the "CBA"), which Bruce was involved in negotiating, and which outlines the relationship between CMTM and WRTA.

CMTM Safety Policies and Procedures

The CMTM Operator Handbook outlines the written safety practices that must be adhered to in order to be a driver for CMTM.

Section 5.19 of the CMTM Operator Handbook provides, in part, as follows:

... Operators are to refrain from unnecessary conversation with passengers while engaged in the duties of driving a bus...

... The operator must not proceed until passengers are seated ... Passengers should not be allowed to stand near the operator's seat merely to converse with the operator ... (emphasis in original).

Section 6.29 of the CMTM Operator Handbook provides, in part, as follows:

An operator must not permit anything to divert his/her attention from the safe and proper performance of his duty.

....

Holding unnecessary conversation, looking backward ... etc., while the bus is in motion are all prohibited. Passengers should not be allowed to stand near yellow line [directly behind the driver] and converse with the driver.

Bruce was trained in safety and is familiar with the CMTM Operator Handbook. He was responsible for training new employees at CMTM in safety.

CMTM has an Employee Discipline Policy which includes a list of Class II infractions. Class II infractions do not result in immediate discharge, instead such an infraction results in a 10-15 day suspension for a first violation and discharge after the second. Class II infractions include: making unauthorized statements to the media (newspaper, TV, radio, etc.), that is statements made as an employee of CMTM or WRTA without having obtained prior approval of the General Manager.

Bruce's Employment as a Bus Driver and the Events Leading to His Termination

Bruce's Prior Disciplinary Record and the LC Agreement

During his employment by CMTM and the WRTA, Bruce had a significant disciplinary record. Within the three (3) years immediately preceding his final discharge, which is the subject of this action, he was terminated twice--on August 31, 2015 and again on February 15, 2017--for violating CMTM's Employee Discipline Policy (both terminations were rescinded by agreement). On June 1, 2016 he was demoted as the result of another violation. After Bruce was terminated on February 15, 2017, CMTM, Bruce, and ATU Local 22 entered into a Last Chance Return to Work Agreement (the "LC Agreement") dated March 30, 2017. Both Bruce and Kephart (who was the union representative who signed the agreement for ATU Local 22), as business agents and leaders of ATU Local 22, had substantial experience dealing with such last chance return to work agreements. The WRTA is not a party to the LC Agreement.

In the LC Agreement, which was to remain in effect for two years, Bruce and ATU Local 22 agreed that any Class I or Class II violation of Employee Discipline Policy/Code of Conduct by Bruce would...