Firenze v. Nat'l Labor Relations Bd.

993 F.Supp.2d 40

Don FIRENZE, Plaintiff,

v.NATIONAL LABOR RELATIONS BOARD, National Labor Relations Board Union, Defendants.

Civil Action No. 12–10880–PBS.

United States District Court, D. Massachusetts.

Jan. 27, 2014.

Don Firenze, Boston, MA, pro se.

Jennifer A. Serafyn, United States Attorney's Office, Jonathan J. Margolis, Rodgers, Powers & Schwartz LLP, Boston, MA, Joseph V. Kaplan, Passman & Kaplan, P.C., Washington, DC, for Defendants.

ORDER ON REPORT AND RECOMMENDATIONS

PATTI B. SARIS, Chief Judge.

“After a review of the objection and the caselaw, the Court ADOPTS the report and recommendation. I order that final judgment be entered in favor of the defendants.” Action on motion: ADOPTING [69] Report and Recommendations: DENYING [47] Motion for Summary Judgment; GRANTING [57] Motion for Summary Judgment.

REPORT AND RECOMMENDATION ON MOTION FOR SUMMARY JUDGMENT AGAINST NATIONAL LABOR RELATIONS BOARD WITH RESPECT TO COUNT II OF THE COMPLAINT (# 47) AND DEFENDANT NLRB'S CROSS–MOTION FOR SUMMARY JUDGMENT AS TO THE REMAINING COUNT II(# 57)

COLLINGS, United States Magistrate Judge.

I. Introduction

On May 16, 2012, plaintiff Don Firenze (“Firenze”) filed a three-count complaint (# 1) against the defendants National Labor Relations Board (“NLRB”) and the National Labor Relations Board Union (“NLRBU”). Firenze is an attorney with the NLRB's Boston Regional Office, known as Region One. (Local Rule 56.1 Statement of Material Facts Not in Dispute # 53 ¹ at 2) He is represented in collective bargaining and related employment matters by the NLRBU. (# 53 at 2)

The NLRB and NLRBU each filed motions to dismiss the complaint. ( 8, 15) On January 10, 2013, 2013 WL 639151 the undersigned issued a Report and Recommendation on the dispositive motions, recommending that NLRBU's motion to dismiss Count III, the only count against the NLRBU, be allowed. (# 30) It was further recommended that the NLRB's motion to dismiss be allowed with respect to Counts I and III, but denied as to Count II. (# 30) On February 19, 2013, 2013 WL 639148 Chief Judge Saris adopted the Report and Recommendation in relevant part and dismissed Counts I and III. (# 37) Thus, at this juncture, the sole remaining claim is that alleged in Count II, to wit, that the NLRB violated Firenze's First Amendment right to free speech by imposing a prior restraint of speech on its employees when it forbade them from publicizing labor disputes between the NLRB and the NLRBU. (# 1 ¶ 42)

On June 11, 2013, Firenze filed a motion for summary judgment as to the remaining Count II of the complaint. (# 47) In conjunction with his motion, Firenze filed a motion for leave to exceed page limits (# 48), which was granted. (# 49) The plaintiff then filed a memorandum of law in support of the summary judgment motion (# 50) and a statement of material undisputed facts. (# 53) Attached as exhibits to Firenze's statement of undisputed material facts are an affidavit of Firenze (# 53–1) and a copy of certain e-mail exchanges. (# 53–2)

On August 13, 2013, the NLRB filed a cross-motion for summary judgment (# 57) together with a memorandum in support of its cross-motion and in opposition to Firenze's motion (# 58), a copy of certain e-mail exchanges (# 60), the declaration of NLRB Special Counsel Elizabeth H. Bach (# 59), and a statement of material undisputed facts.² (# 61) Eight days later on August 21, 2013, the plaintiff filed a “reply brief,” in reality an opposition, challenging the NLRB's cross-motion for summary judgment. (# 63) Following an extension of time, on September 13, 2013, the NLRB filed a reply memorandum to Firenze's opposition to the NLRB's cross-motion for summary judgment as to the remaining Count II. (# 68)

At this juncture, the record is complete; the motion and cross-motion for summary judgment stand ready for decision.

II. Factual Background

A series of labor disputes arose during Firenze's course of employment at the NLRB's Boston Regional Office based on conduct occurring between July 2008 and December 2010. (# 53–1 at 1; # 59 ¶ 5; 61 ¶ 1) As a result, six grievances were filed on the plaintiff's behalf under the collective bargaining agreement's grievance and arbitration provisions. (# 61 ¶ 1) The gravamen of Firenze's grievances, discussed infra, was his contention that the disciplinary actions against him were unwarranted and were taken by his supervisor, Regional Director Rosemary Pye (“Pye” or “Regional Director Pye”), because the plaintiff had accused Pye of unethical conduct and implied that his understanding of the law was superior to hers. (# 63)

The first grievance was in response to a February 17, 2009 written reprimand Firenze received in connection with the Classic Lath case to which he had been assigned. (# 59, Ex. A) The plaintiff had requested to be removed from the case because he considered it barred by the six-month statute of limitations. (# 59, Ex. A) When Firenze was not removed from the case, while on annual leave he drafted a memorandum in which he concluded that the complaint in Classic Lath was time-barred and accused Regional Director Pye of breaching her ethical obligation to disclose that fact to the adjudicating Board. (# 59, Ex. A) The plaintiff eventually drafted the assigned documents, but was cited for dragging his feet in doing so. (# 59, Ex. A)

The second grievance was in response to an annual performance appraisal issued on June 10, 2009, for Firenze's work in the preceding year. (# 59, Ex. B) Under the “critical element” quality of work category, the plaintiff received a “Minimally Successful” rating for his performance in the Classic Lath case. (# 59, Ex. B)

The third grievance was in response to a three-day suspension issued in November 2009. (# 59, Ex. C) The grounds for suspension included interference with the investigation of a case and violation of the Information Officer confidentiality requirement, which the NLRB alleged occurred when Firenze told a respondent's attorney that the complainant had admitted that no protected activity under the Act had occurred. The plaintiff's communication was said to have: “revealed potentially damaging information to parties prior to a full investigation; reached a premature determination that a claim was without merit; gave the impression to parties that [he] had the authority to make determinations; and countermanded specific instructions from [his] supervisory chain.” (# 59, Ex. C)

The fourth grievance was in response to a written warning Firenze received on February 24, 2010, for an alleged violation of a provision of the Unfair Labor Practices (ULP) Manual pertaining to the Information Officer function. (# 59, Ex. D) As grounds for the warning, the NLRB asserted that on January 19, 2010, Firenze sent an email to an attorney involved in Supreme Court litigation against the NLRB. (# 59, Ex. D) In that email, the plaintiff wrote that the NLRB engaged in a “denial of due process” when it decided a case for “institutional reasons” rather than on the merits. (# 59, Ex. D)

The fifth grievance was in response to a seven-day suspension proposed by Pye on February 24, 2010, for failure to follow confidentiality requirements regarding investigative affidavits, and for disrespectful and inappropriate conduct towards a supervisor, including throwing a file in the direction of his supervisor because Firenze had found her behavior to be rude and dismissive. (# 59, Ex. E)

The sixth grievance was in response to an October 10, 2010 ten-day suspension for disrespectful conduct toward Regional Director Pye. (# 59, Ex. F) Firenze's alleged disrespectful behavior included, inter alia, telling Pye that she was “not analytical,” that he would not be a “good little bureaucrat,” and implying that he was smarter than her. (# 59, Ex. F)

Pursuant to the collective bargaining agreement's grievance and arbitration provisions, the NLRBU referred Firenze's six grievances for arbitration. (# 53 at 2) In April 2010, before arbitration was set to commence, the plaintiff sent an email to Regional Director Pye asking whether he was permitted to tell people who deal with the NLRB that he had been suspended. (# 53–2) Pye replied that “[i]t would help us answer your question if you tell us why you need to tell people you have been suspended.” (# 53–2) Firenze wrote back: “I could not even begin to think of all the particular reasons I might want to tell people that I have been suspended but the general reason is that I prefer to be able to speak the truth.” (# 53–2) In response, on June 21, 2010, Pye sent an email stating that Firenze “may not communicate in any way about any discipline by the Agency with parties, lawyers, other representatives, and witnesses to your cases or other members of the public who contact the NLRB about NLRB matters” as doing so “would undermine the integrity of the Agency and its ability to fairly effectuate the [National Labor Relations] Act.” (# 53–2)

Firenze responded to Pye's directive with a series of hypotheticals to clarify the class of people with whom he was prohibited from discussing his grievances with the NLRB, such as whether participants to closed cases or certain newspapers who have come before the NLRB were off-limits. (# 53–2) Pye replied that the plaintiff's questions were answered in her original directive which provided him “sufficient guidance to exercise [his] professional judgment appropriately” and that she did “not want to speculate about hypothetical situations.” (# 53–2) Regional Director Pye did invite Firenze to contact her if a specific situation arose in which he needed further guidance. (# 53–2)

On December 27, 2010, the NLRB and the NLRBU agreed to settle the six grievances referred for arbitration by, inter alia, the NLRB expunging all materials relating to the written reprimand of February 17, 2009, the February 24, 2010 written warning, and the October 18, 2010 ten-day suspension from Firenze's record; the NLRB agreeing not to rely...