O'Neill v. Baker, 99-1180

Citation210 F.3d 41
Decision Date09 February 2000
Docket NumberNo. 99-1180,99-1180
Parties(1st Cir. 2000) KATHERINE M. O'NEILL, Plaintiff, Appellant, v. CHARLES D. BAKER, in his individual capacity; LINDA K. CARLISLE, in her individual capacity; RUTH A. MCDERMOTT, in her individual capacity; COMMISSIONER OF ADMINISTRATION AND FINANCE OF THE COMMONWEALTH OF MASSACHUSETTS; and DEPARTMENT OF SOCIAL SERVICES OF THE COMMONWEALTH OF MASSACHUSETTS, Defendants, Appellees. Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 41

210 F.3d 41 (1st Cir. 2000)
KATHERINE M. O'NEILL, Plaintiff, Appellant,
v.
CHARLES D. BAKER, in his individual capacity; LINDA K. CARLISLE, in her individual capacity; RUTH A. MCDERMOTT, in her individual capacity; COMMISSIONER OF ADMINISTRATION AND FINANCE OF THE COMMONWEALTH OF MASSACHUSETTS; and DEPARTMENT OF SOCIAL SERVICES OF THE COMMONWEALTH OF MASSACHUSETTS, Defendants, Appellees.
No. 99-1180
United States Court of Appeals For the First Circuit
Heard February 9, 2000
Decided April 12, 2000

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Copyrighted Material Omitted

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Maura A. O'Neill for appellant.

Salvatore M. Giorlandino, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General of Massachusetts, was on brief, for appellees.

Before: Selya, Boudin, and Lynch, Circuit Judges.

LYNCH, Circuit Judge.

The district court entered summary judgment against the claims of Katherine O'Neill, a veteran Massachusetts social worker, that the Department of Social Services (DSS) and her supervisors terminated her employment without affording her pre-termination rights to procedural due process.1 The complaint sought lost pay

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and benefits, compensatory damages, punitive damages, attorney's fees, and "such other relief the court deems just." We affirm the grant of summary judgment.

I.

Because this appeal challenges a summary judgment decision, we construct this description of the events from the undisputed facts and from inferences drawn in the plaintiff's favor. See Thomas v. Eastman Kodak Co., 183 F.3d 38, 42 (1st Cir. 1999), cert. denied, 68 U.S.L.W. 3526 (U.S. Feb. 22, 2000) (No. 99-1127). Katherine O'Neill was originally hired as a social worker by the Department of Public Welfare in 1975; she went to work for DSS in 1983 and was sent to the Chelsea DSS office in 1990. O'Neill was a tenured employee under the Massachusetts civil service system and a member of the public employees' union, the Alliance of AFSCME-SEIU/AFL-CIO, Local 509. At the time of her termination in 1993, she had the job title of Social Worker III and worked as a screener and investigator of allegations of child abuse and neglect.

Under state law, DSS must start to investigate and evaluate a report of a physically or emotionally injured child within two hours of initial contact and complete the investigation within 24 hours if there is reason to believe the child is in immediate danger. See Mass. Gen. Laws ch. 119, 51B(1). Otherwise, the investigation and evaluation must be started within two days and completed within ten days. See id. The investigator's report becomes the basis for further actions, which can include taking the child into temporary custody, notifying the district attorney and creating a service plan for the child and family within 45 days, and/or making other social services available to the child and family. See id. 51B(3)-(5). O'Neill's job involved her in the screening of the initial report and the later investigation.

O'Neill's work history reveals both considerable conflict with others in the Chelsea office and a series of complaints from her immediate supervisor about her absences from work and her failure to complete her reports in a timely manner. In July 1993, Ruth McDermott, the Area Director for the Chelsea office, met with O'Neill about her chronic tardiness and absences from work. O'Neill attributed these absences to a chronic illness that was exacerbated by the stress of her job. McDermott told O'Neill that she would continue to monitor her absences. At the same time, McDermott gave O'Neill a letter that detailed her absences and lateness, reminded her of the procedures for calling in late or sick, and notified her that failure to make "immediate and consistent improvement" would lead to "disciplinary action up to and including suspension."

O'Neill continued to be absent or tardy periodically, and on September 17, 1993, McDermott met with O'Neill and suspended her without pay for one day. McDermott began the meeting by reading from a letter that listed her absences and tardiness, reminded her when she was expected to report to work, and warned her that the consequences of failing to make improvement included termination. By memo dated October 6, 1993, McDermott advised O'Neill that while there had been some improvement, her performance and attendance record continued to be unsatisfactory. McDermott urged O'Neill to "give more attention to these issues" and advised her that failure to make improvement would result in further disciplinary action "up to and including suspension."

On October 22, 1993, McDermott met with O'Neill and suspended her for three days without pay. McDermott again handed O'Neill a letter at the beginning of the meeting and read from it. The letter detailed the days that O'Neill had been absent or tardy since the September suspension. The letter further said that "any

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failure to make immediate and consistent improvement in the area's [sic] outlined above will result in you being terminated from your employment." During most of this period, O'Neill was on a work plan designed to improve her performance. On November 3, 1993, O'Neill was informed that she was again being placed on a work plan (her last work plan had expired on October 31, 1993). The written work plan set forth DSS's requirements and expectations and warned O'Neill that failure to improve her attendance could lead to termination. McDermott repeated that warning to O'Neill on November 17, 1993.

On December 17, 1993, McDermott sent O'Neill a memorandum entitled "Contemplated Action Hearing." It instructed O'Neill to meet with her that day to discuss her attendance and work plan and, "[d]ue to the nature of the meeting," "advis[ed] [O'Neill] of [her] right to have Union representation." The meeting was rescheduled to December 20 and then to December 23 to permit O'Neill to have a union representative present.

On December 23, 1993, McDermott met with O'Neill and her union representative. McDermott read aloud from a letter of that date. The letter said that after review "of all the facts," including those presented at the meeting of December 23, there was just cause to terminate O'Neill's employment based on her continued pattern of tardiness and absences. It listed eight days since O'Neill's last suspension when she was absent or tardy for a period during the work day. McDermott's affidavit states that O'Neill did not, despite the opportunity provided at the meeting, offer any explanation for her tardiness and absenteeism or any evidence that her discharge was not warranted. McDermott's affidavit also says that "[h]ad [O'Neill] presented compelling reasons indicating that the contemplated discharge was unwarranted, [McDermott] would have reconsidered whether there was just cause to discharge her." O'Neill, who also filed an affidavit, does not dispute this.

McDermott says that she decided to terminate O'Neill on December 17, 1993 and that she drafted the termination letter dated December 23 "prior to the hearing in consultation with the Department's labor relations office as was typical when a discharge was contemplated." The termination letter was mailed to O'Neill the day before the termination meeting took place, and O'Neill received it at her home on December 24, 1993. McDermott's affidavit says that it was a mistake for her secretary to have mailed the letter, which bore McDermott's signature, before the termination meeting.

The Massachusetts civil service law requires that certain particulars be followed before a tenured, covered employee like O'Neill is terminated. See Mass. Gen. Laws ch. 31, 41 (requiring that the employee be given written notice, "which shall include the action contemplated, the specific reason or reasons for such action and a copy of [certain] sections [of the civil service provisions]"). O'Neill says that she was not told in advance of the meeting that she was to be terminated2 and that she was not given a copy of the relevant civil service provisions, as required by the statute. Under the civil service law, O'Neill had the right to challenge her termination and the termination procedures in two ways. She could appeal within ten days to the Civil Service Commission, or she could bring a civil suit for reinstatement in state court. See Mass. Gen. Laws ch. 31, 42.

Alternatively, under state law O'Neill could pursue her remedies under the collective bargaining agreement and take the matter to binding arbitration. See Mass. Gen. Laws ch. 150E, 8. At the recommendation

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of her union representative, O'Neill decided to pursue arbitration. To do that, O'Neill waived her rights to appeal the discharge "to any other forum, including the Civil Service Commission."

At arbitration, the union did not deny O'Neill's absences and tardiness, but instead argued that many of these absences were justified by illness and that absences, tardiness, and flexible work hours were accepted practice at the Chelsea office. The arbitration resulted in a decision on March 29, 1996 that upheld the termination of O'Neill's employment as being amply supported by just cause. The arbitrator found that there was no evidence that any other Chelsea social worker had the "significant time and attendance problem" that O'Neill had. And she concluded that O'Neill's behavior adversely impacted DSS's ability to meet the statutory time requirements and thus to help children at risk and their families. Noting some of O'Neill's strengths as a social worker, the arbitrator called this case "a very sad story." We agree.

O'Neill made no effort to obtain judicial review of the arbitrator's decision, but instead filed a federal civil rights lawsuit on December 23, 1996. The complaint, as amended, sought compensatory damages, punitive damages, attorney's fees, and "such other relief the court deems just." In support of her claim for damages, O'Neill says that she was unable to obtain employment as a social...

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