304 F.3d 148 (1st Cir. 2002), 01-2579, Dasey v. Anderson

Docket Nº:01-2579.
Citation:304 F.3d 148
Party Name:Brian J. DASEY, Plaintiff, Appellant, v. Glenn B. ANDERSON, Joseph Mclaughlin, John DiFava, Paul L. Regan, John Doe, Defendants, Appellees.
Case Date:September 20, 2002
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 148

304 F.3d 148 (1st Cir. 2002)

Brian J. DASEY, Plaintiff, Appellant,


Glenn B. ANDERSON, Joseph Mclaughlin, John DiFava, Paul L. Regan, John Doe, Defendants, Appellees.

No. 01-2579.

United States Court of Appeals, First Circuit

September 20, 2002

Heard April 1, 2002.

Page 149

[Copyrighted Material Omitted]

Page 150

[Copyrighted Material Omitted]

Page 151

Alan S. Fanger for appellant.

Matthew Q. Verge, Assistant Attorney General, with whom James A. Sweeney, Assistant Attorney General, was on brief.

Before TORRUELLA and LIPEZ, Circuit Judges, and McAULIFFE,[*] District Judge.

McAULIFFE, District Judge.

Brian Dasey ("Dasey") was employed as a state trooper by the Massachusetts Department of State Police ("MSP" or "State Police"). Before his probationary period expired, he was discharged for making a material misstatement in his employment application. Dasey filed suit, asserting violations of the Massachusetts right-of-privacy law, Mass. Gen. Laws ch. 214, § 1B; the Federal Civil Rights Act, 42 U.S.C. § 1983; and the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11H.

Page 152

The district court granted summary judgment in favor of the defendants on all counts, and Dasey filed a timely appeal. We affirm.


The critical facts are not contested. After completing his training at the State Police Academy, Dasey was enlisted as a uniformed member of the State Police on August 27, 1999. During the initial application process to become a state trooper, Dasey affirmatively represented that he did not use illegal drugs and, during the preceding five-year period, had not "used, possessed, supplied or manufactured any illegal drugs." On September 14, 1999, while Dasey was still serving in a probationary status,1 MSP Deputy Superintendent Glenn Anderson was given a videotape that had been seized by state troopers while executing a search warrant in an unrelated homicide investigation. The videotape showed Dasey and others apparently smoking marijuana.

After reviewing the videotape, Anderson and appellees John DiFava, Joseph McLaughlin, and Paul L. Regan, all senior State Police officers, concluded that Dasey had been caught on videotape using an illegal drug and, therefore, had necessarily made a false material statement when he denied prior drug use during the application process. Anderson summoned Dasey to MSP headquarters, where he was met by an attorney provided by the troopers' union, the State Police Association of Massachusetts ("SPAM"). Dasey and the union attorney then met with Anderson.

Anderson told Dasey that he had evidence (or information) 2 that Dasey had used an illegal drug and had falsely denied doing so during the employment application process. Dasey was offered an opportunity to resign in lieu of discharge.3 He refused and was thereupon dismissed. Dasey was awarded a general discharge, executed by DiFava in his capacity as Colonel and Superintendent, which read, in its entirety, as follows: "In accordance with the Rules and Regulations governing the Department of State Police, the below named officer is hereby given a GENERAL DISCHARGE effective as of the close of business on Tuesday, September 14, 1999."


Dasey's amended complaint contained six counts. Counts I, II, and III asserted claims for invasion of privacy, brought under Mass. Gen. Laws ch. 214, § 1B, against various defendants. Count IV described a claim under 42 U.S.C. § 1983, based upon alleged violations of Dasey's federal constitutional rights to privacy

Page 153

and due process, as well as deprivation of a property right in continued employment allegedly established by Mass. Gen. Laws ch. 268, § 13B. The due process claim in Count IV alleged deprivation of both a property interest in continued employment and a reputation-based liberty interest. Dasey contended that his property interest in continued employment entitled him to a pre-termination hearing, while his liberty interest entitled him to a post-termination name-clearing hearing. Count V asserted a second § 1983 claim, involving a due process violation related to deprivation of a property interest, and Count VI asserted a violation of the Massachusetts Civil Rights Act. Because Dasey's amended complaint dropped the MSP as a defendant, and names the remaining defendants only in their individual capacities, neither the Eleventh Amendment nor principles of sovereign immunity present any obstacles to Dasey's claims.

The district court granted defendants' motion for summary judgment as to Counts I, II, III, and the invasion of privacy claim in Count IV. The court ruled that Dasey failed to allege that defendants disclosed any facts that would qualify as "private" for purposes of Mass. Gen. Laws ch. 214, § 1B, an essential element of the cause of action, and, alternatively, that Dasey failed to show that defendants acted unreasonably in reviewing the videotape, or in taking action against him based on its content. The district court also granted defendants' motion for summary judgment as to Counts V and VI, and the due process claim in Count IV, on grounds that Dasey, as a probationary trooper, had no reasonable expectation that his employment would continue and, as a consequence, had no constitutionally protected property interest in his job, or concomitant due process rights, at the time he was discharged. The district court did not directly address Dasey's claim that he wasentitled to a name-clearing hearing to protect a reputation-based liberty interest.


We review the district court's ruling on summary judgment de novo. Pure Diatribes., Inc. v. Baker, 285 F.3d 150, 154 (1st Cir. 2002) (citation omitted). We may affirm the entry of summary judgment "on any ground revealed by the record." Moulton Citizens' Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999). Summary judgment is appropriate when the record reveals "no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. CIF. P. 56(c). When ruling upon a party's motion for summary judgment, the district court must "scrutinize the summary judgment record 'in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor.'" Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001) (quoting Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990)).

This appeal presents three basic issues; two are rather straightforward, and one is slightly more complicated. We begin with the less complicated matters—Dasey's privacy and liberty-interest claims—and end with his asserted right to a pre-termination hearing.

A. Privacy Interest

Massachusetts recognizes an actionable right of privacy. The applicable statute provides that "[a] person shall have a right against unreasonable, substantial or serious interference with his privacy." Mass. Gen. Laws chi. 214, § 1B. Section 1B protects people from "disclosure of facts . . . that are of a highly personal or intimate nature when there exists no legitimate, countervailing interest." Brat v.

Page 154

Int'l Bus. Machos. Corp., 392 Mass. 508, 467 N.E.2d 126, 133-34 (1984) (citations omitted); see also French v. United Parcel Serve., Inc., 2 F.Supp.2d 128, 131 (Dumas. 1998) ("To constitute an invasion of privacy, the invasion must be both unreasonable and serious or substantial.") (citation omitted). Massachusetts does not recognize a cause of action for false light invasion of privacy. Caney v. City of Chelsea, 925 F.Supp. 58, 70 (D.Mass.1996) (citing ELM Med. Lab., Inc. v. RKO Gen., Inc., 403 Mass. 779, 532 N.E.2d 675, 681 (1989)). Rather, Mass. Gen. Laws chi. 214, § 1B is typically invoked to remedy "the gathering and dissemination of information which the plaintiffs contended was private." Schlesinger v. Merrill Lynch, Pierce, Fanner & Smith, Inc., 409 Mass. 514, 567 N.E.2d 912, 914 n. 4 (1991) (citations omitted).

As the district court correctly decided, Counts I, II, and III of the complaint fail, as a matter of law. Neither the complaint nor Dasey's objection to summary judgment identified any facts at all, and certainly no highly personal or intimate facts, about Dasey that were either gathered or disseminated by any defendant.

As for the personal or intimate nature of the allegedly private facts disclosed in the videotape, French plainly establishes that activity in the presence of others who owe no duty of confidentiality—a category which includes the subject matter of the videotape—is hardly "private." See French, 2 F.Supp.2d at 131. Likewise, the "gathering and dissemination" element has not been met. Dasey neither alleged, nor produced any evidence that suggested, that any defendant made or distributed the tape; he only alleged that defendants watched it.4

Even if Dasey had been able to satisfy the "gathering and dissemination" and "private facts" elements of his claim under Mass. Gen. Laws chi. 214, § 1B, that still would not have been enough to survive summary judgment. To be actionable, the gathering and dissemination of private facts must also be unreasonable. When determining the reasonableness of an intrusion, an "employer's legitimate interest in determining the employees' effectiveness in their jobs should be balanced against the seriousness of the intrusion on the employees' privacy." O'Connor v. Police Comm.'s of Boston, 408 Mass. 324, 557 N.E.2d 1146, 1150 (1990) (quoting Brat, 467 N.E.2d at 135) (holding that police department's "compelling interest in determining whether cadets were using drugs" outweighed cadets' privacy interest in avoiding unannounced urinalysis tests for which sample collection was monitored by police personnel). Here, defendants' modest intrusion into Dasey's privacy (if reviewing the seized videotape evidence constituted an intrusion at all) was entirely reasonable in light of their compelling interest in verifying the...

To continue reading