Pereira v. Commissioner of Social Services

• Decision Date: 02 May 2000
• Citation: 733 NE 2d 112,432 Mass. 251
• Parties: LINDA M. PEREIRA v. COMMISSIONER OF SOCIAL SERVICES & another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

432 Mass. 251

733 NE 2d 112

LINDA M. PEREIRA v. COMMISSIONER OF SOCIAL SERVICES & another.¹

Supreme Judicial Court of Massachusetts, Suffolk.

May 2, 2000.

August 9, 2000.

Present: MARSHALL, C.J., ARRAMS, GREANEY, IRELAND, SPINA, & COWIN, JJ.

Mark P. Sutliff, Assistant Attorney General, for the defendants.

Eric S. Maxwell for the plaintiff.

MARSHALL, C.J.

We consider whether an investigator employed by the Department of Social Services (DSS or department) may be disciplined for making an offensive racist comment at a testimonial dinner for retiring members of a city council. We conclude that the decision taken by a public agency to discharge her must be upheld. We reverse an order of summary judgment in favor of the employee.

In September, 1996, Linda M. Pereira commenced this action against the department and its commissioner, in her official capacity and individually, alleging that she had been terminated from her position as a DSS social worker "solely as a consequence of her protected speech" in violation of her rights under the First Amendment to the United States Constitution and the Constitution of the Commonwealth of Massachusetts.² She brought this action pursuant to G. L. c. 30A (administrative procedure act), G. L. c. 231A (declaratory judgment), G. L. c. 249, § 5 (mandamus), and 42 U.S.C. § 1983 (1994) (Federal civil rights statute). She also alleged common-law violations for wrongful termination and infliction of emotional distress. Pereira sought declaratory and injunctive relief, as well as monetary damages from the commissioner individually.

The parties submitted cross motions for summary judgment, which, in October, 1998, a judge in the Superior Court allowed in part and denied in part. He held that Pereira's claims under G. L. c. 30A; G. L. c. 231A; and G. L. c. 249, § 5, were barred as untimely filed.³ He allowed Pereira's motion for summary judgment on the issue of liability as to her civil rights claim against the commissioner in her individual capacity, concluding that she was not entitled to qualified immunity because the constitutional right of free speech, he said, was "clearly established," and a reasonable official "would have understood" that firing Pereira would violate her constitutional rights. He ordered a trial on the issue of damages against her. The judge also determined that Pereira was entitled to injunctive relief against the department on her civil rights claim and ordered the department to reinstate her nunc pro tunc with back pay.⁴ The judge determined that Pereira's claim for intentional infliction of emotional distress raised issues of material fact that could not be disposed of on summary judgment.

Judgment on the cross motions entered on November 25, 1998. The commissioner, in her individual capacity, took an appeal from the denial of her qualified immunity on Pereira's claim for monetary damages.⁵ In February, 1999, the department moved for entry of a separate and final judgment on the order granting Pereira's claim for equitable relief, which was allowed in March, 1999. Meanwhile, the department and the commissioner jointly moved to stay, pending appeal, the order requiring the department to reinstate Pereira to her former job, the trial on damages for Pereira's claim against the commissioner under 42 U.S.C. § 1983, and the trial on liability and damages on Pereira's claim for intentional infliction of emotional distress, all of which the judge allowed.⁶ The commissioner's appeal from the denial of her claim for qualified immunity and the department's appeal from the judge's order were consolidated in the Appeals Court. We transferred the case to this court on our own motion.

I

We summarize the facts as stipulated by the parties, supplemented where appropriate by facts appearing in the record that are not disputed. See Community Nat'l Bank v. Dawes, 369 Mass. 550, 553-554 (1976); Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). Pereira was employed by DSS for over twelve years, during which she had an "unblemished" record. At the time of her discharge, Pereira was a "protective investigator."⁷ Her principal responsibilities required her to review reports of allegations of abuse and neglect of children, screen cases to determine whether the department should proceed with an investigation, and to investigate any abuse allegation within ten days, or within hours if the report indicated an emergency. In consultation with a supervisor, Pereira determined whether in any particular case the removal of a child from home was necessary. To those ends, her investigations involved significant contact with DSS clients, the community, and social service organizations, among others, as she interviewed and investigated those involved with and implicated in the abuse reports. For DSS to carry out its public mandate to protect children who are abused and neglected, Pereira, like other DSS investigators, was required to gain access to the homes of affected families. G. L. c. 18B, § 3 (B) (4).

In addition to her position with DSS, Pereira had been a member of the Fall River city council from 1991 to 1995, but in the fall of 1995 she lost her bid for reelection. On February 5, 1996, Pereira attended a dinner for the then outgoing Fall River city councillors, an event that is the focal point of this case. The event was hosted by the city clerk and attended by numerous city officials, community leaders of Fall River, and other guests. While a political event, members of the general public were not invited.⁸ At the party, Pereira made a distasteful racial comment that the parties characterize as a "joke."⁹ The following day the press reported that she had made the statement, adding, inaccurately, that it was part of her prepared remarks at the dinner.¹⁰ Two days later, DSS placed Pereira on administrative leave, with pay. On April 10, 1996, following an internal investigation that included a hearing, the commissioner informed Pereira that her service as a DSS employee would be terminated, effective immediately.¹¹

There was widespread publicity of the incident, as a result of which the DSS area director in Fall River "received numerous complaints from [DSS] clients [and] members of the community."¹² In an affidavit submitted by the defendants as part of their cross motion for summary judgment and not disputed by Pereira, the area director states that she received twenty-five telephone calls from people expressing outrage that a department employee would tell a racist "joke." It is also undisputed that one DSS employee was refused entrance into a DSS client's home because of Pereira's reported comment.¹³

II

We consider first whether Pereira's speech is protected by the First Amendment, and, if so, whether DSS violated her rights by terminating her employment. The question would not be considered substantial if the view of Justice Holmes, expressed more than a century ago, had prevailed. In McAuliffe v. Mayor & Aldermen of New Bedford, 155 Mass. 216, 220 (1892), the court dismissed a police officer's challenge to a police regulation prohibiting the solicitation of political contributions because, "[t]he petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." Id. This view has not prevailed. In a long line of cases the Supreme Court has clarified that, when a public employer attempts to discharge or otherwise discipline an employee who exercises a right that is constitutionally protected, the employer is subject to some restraint. See, e.g., Keyishian v. Regents of the Univ. of N.Y., 385 U.S. 589, 605-606 (1967), quoting Keyishian v. Regents of the Univ. of N.Y., 345 F.2d 236, 239 (2d Cir. 1965) ("the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected"). A public employer therefore "may not discharge an employee on a basis that infringes that employee's constitutionally protected interest in freedom of speech." Rankin v. McPherson, 483 U.S. 378, 383 (1987). See Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Board of Educ., 391 U.S. 563 (1968). To decide whether a public employee has an actionable claim for the infringement of her First Amendment rights, we must determine first, based on "the content, form, and context of [the] given statement, as revealed by the whole record," Connick v. Myers, supra at 147-148, whether the public employee was speaking "as a citizen upon matters of public concern." Id. at 147. The Supreme Court has distinguished between disciplinary actions taken by a public employer that require judicial scrutiny to ensure "that citizens are not deprived of fundamental rights by virtue of working for the government," and disciplinary actions for which public employers enjoy wide latitude in managing their offices. See id. "To be protected, the speech must be on a matter of public concern ...."¹⁴Waters v. Churchill, 511 U.S. 661, 668 (1994). If a court determines the speech to be on a matter of public concern, then the court must "arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Educ., supra at 568. In addition, "the employee's interest in expressing herself on [the] matter must not be outweighed by any injury the speech could cause" to that interest. Waters v. Churchill, supra at 668.¹⁵

The defendants argue that Pereira's "joke" was not a matter of public concern, and therefore not protected. Pereira takes the contrary position. The judge in the Superior Court apparently assumed it was; he did not consider the threshold question whether Pereira's comment constituted speech related "to any matter of political, social, or other concern to the community."...