Mard v. Town of Amherst

• Decision Date: 20 November 2003
• Docket Number: No. 03-1216.,03-1216.
• Citation: 350 F.3d 184
• Parties: Veronica MARD, Plaintiff, Appellant, v. TOWN OF AMHERST, Massachusetts, Kate Zlogar, and Keith Hoyle, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

350 F.3d 184

Veronica MARD, Plaintiff, Appellant, v. TOWN OF AMHERST, Massachusetts, Kate Zlogar, and Keith Hoyle, Defendants, Appellees.

No. 03-1216.

United States Court of Appeals, First Circuit.

Submitted September 9, 2003.

Decided November 20, 2003.

Harold L. Lichten and Pyle, Rome, Lichten, & Ehrenberg, P.C., for appellant.

Richard W. Jensen and Morrison, Mahoney & Miller, LLP, for appellees.

Before LYNCH, LIPEZ, and SILER,^* Circuit Judges.

LIPEZ, Circuit Judge.

In her action brought under 42 U.S.C. § 1983, plaintiff Veronica Mard appeals the district court's award of summary judgment in favor of defendants Town of Amherst et al. Mard complains that the defendants terminated her injury leave benefits without providing adequate notice or opportunity to be heard, in violation of her right to due process under the Fourteenth Amendment of the United States Constitution. The district court granted the defendants' motion for summary judgment and denied the plaintiff's cross motion for summary judgment. Finding compliance with the requirements of due process, we affirm the decision of the district court.

I.

We recite the facts in the light most favorable to the appellant, drawing all reasonable inferences in her favor. See Macone v. Town of Wakefield, 277 F.3d 1, 5 (1st Cir.2002). On September 2, 2000, Mard, a firefighter for the Town of Amherst, Massachusetts, answered an emergency ambulance call at Amherst College. While proceeding down a hill with a stretcher to retrieve a patient, Mard slipped and fell, landing on her back and shoulder. As a result of the fall, Mard received injuries to her back, neck, shoulders, left arm, left leg, right knee, and ankle.

After Mard completed the call and returned to the station, she informed her supervisor, Captain Donald R. McKay, that she was injured and would need to go home. Mard did not return to work and began receiving injury leave benefits pursuant to Mass. Gen. Laws ch. 41, § 111F. The statute provides that whenever a firefighter of a city or town "is incapacitated for duty because of injury sustained in the performance of his duty," he or she shall be granted paid leave "for the period of such incapacity." Mass. Gen. Laws ch. 41 § 111F. Such leave may not extend beyond "any period after a physician designated by the board or officer authorized to appoint police officers or fire fighters in such [town] determines that such incapacity no longer exists." Id.

As a member of the Amherst Fire Fighters, Local 1764, I.A.F.F. ("the Union"), Mard was a party to a collective bargaining agreement between the Union and the Town. The agreement, a copy of which is sent to all union members within their first month of full employment, specifies the rights and obligations of union members who are sick or injured and affirms that the provisions of the agreement "shall not be less than the provisions of [Mass. Gen. Laws ch. 41, § 111F]." Article 21.5 of the agreement further provides:

The employee shall upon request submit medical evidence to the Fire Chief on those occasions on which leave as provided herein is claimed when the employee has been treated by a physician or other medical practitioner, including, but not limited to, treatment by an osteopath or chiropractor. The Fire Chief may require the timely presentation of such medical evidence or other evidence reasonably satisfactory to him in connection with a claim for sick or injury leave hereunder in the event he reasonably suspects that the employee making such claim was not legitimately incapacitated from performing his duties as an employee.

Under Article 21.11 of the collective bargaining agreement, the Fire Chief, acting on behalf of the Town, may determine the length and extent of a union member's injury:

Upon ... his own initiative the Fire Chief will arrange for medical evaluation of length and extent of disability, including an opinion as to the ability of the employee to perform limited duty. The Fire Chief shall make a determination of suitability for duty taking into consideration the needs of the department....

As provided by Article 21.12, any "disputes regarding interpretation or application of [the] policy [are] subject to the grievance and arbitration procedure" set forth in the agreement.

In June 2001, the Town requested that the plaintiff attend an independent medical examination conducted by neurologist Linda C. Cowell. Dr. Cowell conducted an extensive evaluation and prepared an eight-page report for the Town, which included medical records provided by Mard. The report noted that "the examining process was explained to the examinee and she understands there is no patient/treating physician relationship and the report will be sent to the requesting client." It concluded that Mard "could perform a light duty job with essentially no lifting."

Immediately after Mard's examination by Dr. Cowell, another neurologist, Brian Smith, prescribed medication for migranes that Mard said she had been experiencing. Mard notified the Town that Dr. Smith had placed her on medication that caused her dizziness and disequilibrium and that therefore precluded her from driving. In response to this information, the Town approved the continuation of Mard's injury leave.

On August 29, 2001, the Town sent Mard a letter notifying her that "an appointment for an Independent Medical Examination ha[d] been arranged for [her]" with a neurologist, Dr. William Donahue. The letter instructed Mard to bring to the appointment "any X-rays, CT scans, MRI studies, [or] other medical records pertaining to [her] injury" and warned that "pursuant to Section 45 of the Workers Compensation Act, failure to attend or obstruction of this examination may suspend your right to compensation."

Mard attended her appointment with Dr. Donahue and brought with her medical records from her orthopedic surgeon, primary care physician, and chiropractor, as well as records relating to a prior MRI. Mard claims that Dr. Donahue did not ask for her medical records and refused to review the records when she offered them to him. She states that Dr. Donahue told her that he did not wish her to provide any unsolicited information and that she should answer only those questions he asked. She further claims that the physician conducted an eleven-minute examination, asking only general questions and neglecting to inquire about her migraines or the side effects of her migraine medication. According to Mard, Dr. Donahue did not review her March 2001 MRI or the initial study of the migraines and failed to address her migraines or the effects of her medication in his report to the Town.

The Town, on the other hand, argues that Mard "had the opportunity and did, in fact, present her side of the story to Dr. Donahue," and that the doctor's opinion was "based on reliable information, including his physical examination, the plaintiff's description of her symptoms, and a medical records review." In his four-page report to the Town, Dr. Donahue stated that he took a medical history from Mard and reviewed her medical records, including "an extensive independent medical examination particularly in terms of a history that was done by Dr. Linda Cowell." He discussed in some detail the results of his physical examination of Mard and related Mard's description of her own symptoms. He noted that he did not have available for review the April 2001 MRI study or any "significant recent records of treatment and evaluation." After the evaluation, Dr. Donahue determined that Mard would be able to work "in moderate duty capacity," with certain limitations.

On October 4, 2001, Keith Hoyle, the Town's Fire Chief, notified Mard by letter that she would "no longer be on injured duty status effective October 5, 2001," at which time she would be assigned "moderate duty." When Mard did not return to work on October 5, the Town terminated her benefits. On October 9, 2001, Mard filed a grievance under Article 26.1 of the collective bargaining agreement, which provides extensive procedures for resolving grievances, defined as "any difference between the parties to [the] Agreement relating to its interpretation, application, or administration...." Pursuant to the grievance procedures established by the agreement, the Grievance Committee found that a grievance existed and referred the dispute to Chief Hoyle. After meeting with the Committee, the Fire Chief agreed that Mard could remain on personal sick leave pending the outcome of the grievance procedure. Also in accord with the collective bargaining agreement, the Committee forwarded the grievance to the Town Manager, who conducted a hearing on November 19, 2001 that involved both parties to the grievance. On November 26, 2001, the Town Manager determined that Mard was no longer eligible for injured on duty status under § 111F or § 21.9. Three days later, the Union notified the Town of its intent to file for arbitration on Mard's behalf as provided for by the collective bargaining agreement.

On December 12, 2001, Mard filed a complaint in the United States District Court for the District of Massachusetts, alleging that the Town terminated her injury leave benefits without providing adequate notice and hearing as required by the Due Process Clause of the Fourteenth Amendment.¹ Mard filed a motion for a preliminary injunction and summary judgment on March 12, 2002. On April 15, 2002, the Town filed its answer to the complaint.

On May 17, 2002, while the arbitration and civil lawsuit were pending, the Union and the Town executed a settlement agreement. It provided, in part:

Whereas, the parties have reached agreement to settle all issues with regard to the grievance and they intend by the settlement to resolve all outstanding issues relative to all allegations contained in the grievance....

The agreement restored Mard to injured on duty status retroactively to the date on which it had been converted to sick leave, and accorded to...