Powell v. City of Pittsfield

Page 94

143 F.Supp.2d 94

Walter J. POWELL, Plaintiff v. CITY OF PITTSFIELD; Edward Reilly; Gerald Lee; Kathleen Alexander; and Gordon Bird, Defendants

No. CIV.A. 97-30189-MAP.

United States District Court, D. Massachusetts.

April 23, 2001.

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David P. Hoose, Howard S. Sasson, Katz, Sasson & Hoose, Springfield, MA, for Walter J. Powell, Plaintiff.

Katherine G. Alexander, City Solicitor's Office, Pittsfield, MA, Judith C. Knight, Campoli & Curley, Pittsfield, MA, for City of Pittsfield.

Katherine G. Alexander, City Solicitor's Office, Pittsfield, MA, Judith C. Knight, Campoli & Curley, Pittsfield, MA, Daniel R. Solin, Pittsfield, MA, for Edward Rielly.

David B. Mongue, Donovan & O'Connor, Adams, MA, Katherine G. Alexander, City Solicitor's Office, Pittsfield, MA, Judith C. Knight, Campoli & Curley, Pittsfield, MA, for Gerald Lee.

Nancy Frankel Pelletier, Robinson, Donovan, Madden & Barry, Springfield, MA, Katherine G. Alexander, City Solicitor's Office, Pittsfield, MA, Judith C. Knight, Campoli & Curley, Pittsfield, MA, for Kathleen Alexander.

John A. Agostini, Pittsfield, MA, Katherine G. Alexander, City Solicitor's Office, Pittsfield, MA, Judith C. Knight, Campoli & Curley, Pittsfield, MA, for Gordon Bird, Defendants.

ORDER

PONSOR, District Judge.

Upon de novo review this Report and Recommendation is hereby adopted, without opposition. Rulings on the pending motions for summary judgment are as set forth in Section IV. The clerk will set the matter for a status conference.

So ordered.

REPORT AND RECOMMENDATION WITH REGARD TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (Docket Nos. 46, 49, 56, 57 and 61)

NEIMAN, United States Magistrate Judge.

Walter J. Powell ("Plaintiff"), believing that the City of Pittsfield ("Pittsfield") did not rehire him as a police officer quickly enough following his settlement of a prior employment discrimination lawsuit, filed this action on September 8, 1997. Plaintiff claims that Pittsfield, along with four individuals involved in the rehiring process, Mayor Edward Reilly ("Reilly"), Police Chief Gerald Lee ("Lee"), City Solicitor Kathleen Alexander ("Alexander") and City Physician Gordon Bird ("Dr.Bird") (collectively "Defendants"), violated certain civil rights and other laws.

Defendants have each moved for summary judgment. The motions, five in all, have been referred to this court for a report and recommendation. See 28 U.S.C. § 636(b). For the reasons stated below, the court will recommend that two of the motions, Dr. Bird's and Lee's, be allowed in full and that the remaining three, Pittsfield's, Reilly's and Alexander's, be allowed in part and denied in part.

I. SUMMARY JUDGMENT STANDARD

A court may grant summary judgment pursuant to FED. R. CIV. P. 56(c) if "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Once the moving party has asserted that no genuine issue of material fact exists, the burden is on the opposing party to point to specific facts demonstrating that there is, indeed, a trialworthy issue. National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995). A "genuine" issue is one "that a reasonable jury could resolve ... in favor of the nonmoving party." McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995). Accord United States v. One Parcel of Real Property, Great Harbor Neck, New Shoreham, R.I., 960 F.2d 200, 204 (1st Cir.1992).

Not every genuine factual conflict, however, necessitates a trial. "`It is only when a disputed fact has the potential to change the outcome of the suit under the governing law if found favorably to the nonmovant that the materiality hurdle is cleared.'" Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445, 448 (1st Cir. 1997) (quoting Martinez v. Colon, 54 F.3d 980, 983-84 (1st Cir.1995)). At bottom, matters of law are for the court to decide at summary judgment. Blackie v. Maine, 75 F.3d 716, 721 (1st Cir.1996).

II. BACKGROUND

The court states the facts, which span nearly two decades, in a light most favorable to Plaintiff, the non-moving party. In doing so, the court deems admitted uncontroverted facts of record supplied by Defendants. See Local Rule 56.1.¹

Plaintiff, an African-American, attended the state police academy in 1983 and thereafter began working as a police officer in the city of North Adams. (Plaintiff's Amended Affidavit (attached to Docket No. 78) ¶¶ 1, 2.) In May of 1985, Plaintiff was hired as a Pittsfield police officer. (Docket No. 32: First Amended Complaint and Demand for Jury Trial ("Complaint") ¶ 9.) When Plaintiff was initially hired by Pittsfield, Dr. Bird performed a routine physical examination. (Docket No. 71: Exhibits in Support of Plaintiff Opposition to Defendants' Motions for Summary Judgment ("Plaintiff's Exhibits"), Exhibit 5 (Bird Deposition) at 15-16.) At all relevant times, Dr. Bird held the title of City Physician, a part-time, contract position. (Complaint § 1(C)(4), at 3 and § II at 4.)

On March 21, 1991, Plaintiff was fired from the Pittsfield Police Department. (Complaint ¶ 10.) Plaintiff thereafter filed a lawsuit in this district alleging illegal race discrimination. See Powell v. Pittsfield, Civil Action No. 91-30195-FHF. While that lawsuit was pending in 1992, Reilly became the Mayor of Pittsfield, Alexander became the City Solicitor and Lee became the Chief of Police. (See Pittsfield's Facts §§ i(C)(1)-(3), at 2-3.) Reilly, as Mayor, was the ultimate appointing authority for the Police Department. (Plaintiff's Exhibits, Exhibit 2 (Reilly Deposition) at 8.)

On September 29, 1993, Plaintiff and Pittsfield entered into a Settlement Agreement and Release of All Claims ("Settlement Agreement"). (Complaint ¶ 12.) Reilly and Alexander negotiated the Settlement Agreement on behalf of Pittsfield. (Plaintiff's Exhibits, Exhibit 2 (Reilly Deposition) at 13.) As part of their negotiation, Reilly and Alexander met with Lee to discuss requirements which would allow Plaintiff to be reinstated. (Id., Exhibit 4 (Lee Deposition) at 23-24.) Reilly, however, viewed himself as the person ultimately responsible for Plaintiff's reinstatement. (Id., Exhibit 2 (Reilly Deposition) at 35-36.)

The terms of the Settlement Agreement required Plaintiff to dismiss with prejudice all civil actions pending against Pittsfield, its agents, employees, successors and assigns, including the prior action filed in this court. (Docket No. 60: Exhibits [to Pittsfield's] Concise Statement of Facts ("Pittsfield's Exhibits"), Exhibit B ¶ 4.) In return, Pittsfield agreed to pay Plaintiff $81,000 and reinstate him as a police officer. (Id. ¶ 1.) Plaintiff's reinstatement, however, was conditioned upon his passing a physical and psychological examination and other reasonable conditions to be determined by Police Chief Lee. (Id. ¶ 3.) More specifically, the Settlement Agreement, in applicable part, provided as follows:

Powell agrees that his reinstatement shall be conditioned upon his successful completion of certain re-training as determined by Chief of Police Gerald Lee, certain psychological counseling if and as determined by Chief Lee, successfully undergoing a complete physical and psychological examination, and whatever other conditions Chief Lee determines are necessary in order to facilitate Mr. Powell's reorientation into the Department for both his own interests and the best interests of the Department.

(Id.)

Following execution of the Settlement Agreement, Pittsfield's personnel department requested Dr. Bird to provide a full police academy entrance physical exam to Plaintiff. (Complaint ¶ 17; Docket No. 48: Exhibits Regarding Memorandum in Support of Bird's Motion for Summary Judgment ("Bird's Exhibits"), Exhibit 8 (Bird Deposition) at 31.) At the time, Dr. Bird's duties as City Physician included giving physicals to Pittsfield police officer candidates who were entering the Pittsfield police force. (Complaint ¶ 16.) Because Pittsfield did not have a specific custom or policy in place pertaining to the rehiring or reinstatement of police officers after a period of separation, the city utilized its policy requiring that newly hired police officers pass a physical examination administered by Dr. Bird. (See Docket No. 65: Memorandum in Support of Alexander's Motion for Summary Judgment ("Alexander's Brief"), Exhibit 2 (Alexander Deposition) at 17-19.)

Dr. Bird examined Plaintiff on October 20, 1993 — lab tests appeared to have been taken on October 13, 1993 (Bird's Exhibits, Exhibit 9) — and Dr. Bird found Plaintiff healthy and "[q]ualified for the position sought." (Complaint ¶¶ 18, 19; Pittsfield's Exhibits, Exhibit D.) Nonetheless, abnormal liver function tests, which indicated a possible mild dysfunction, required further liver testing. (Pittsfield's Exhibits, Exhibit D; Complaint ¶ 19.)

On the basis of these further tests, taken on or about October 27, 1993, Dr. Bird determined that Plaintiff, while otherwise healthy, should have a hepatitis panel test to further assess liver function. (Complaint ¶ 20.) On November 10, 1993, the test indicated a positive reaction for hepatitis C. (Id. ¶ 21; Pittsfield's Exhibits, Exhibit E.) Accordingly, Plaintiff was referred to a specialist, although he indicated that he also wanted to arrange for a consultation with his own doctor about the possibility of hepatitis C. (Complaint ¶ 21; Bird's Exhibits, Exhibit 13.)²

On November 15, 1993, Dr. Robert Taylor — a doctor chosen by Plaintiff — reported to Dr. Bird that, although Plaintiff may have a hepatitis infection, he was otherwise healthy and was only restricted from giving blood and imbibing alcohol. (Alexander's Brief, Exhibit 4(F).) Plaintiff then saw Dr. Arthur Wasser, a gastroenterologist to whom he was referred by Dr. Bird. (Pittsfield's Exhibits, Exhibit F.) Dr. Wasser reported on December 13,...