Saltzman v. Town of Hanson

• Decision Date: 31 March 2013
• Docket Number: Civil Action No. 11–10056–MBB.
• Citation: 935 F.Supp.2d 328
• Parties: Bonita SALTZMAN, Plaintiff, v. TOWN OF HANSON, Michael Finglas, Sr. and Jean Marie Smith, Defendants.
• Court: U.S. District Court — District of Massachusetts

935 F.Supp.2d 328

Bonita SALTZMAN, Plaintiff,

v.TOWN OF HANSON, Michael Finglas, Sr. and Jean Marie Smith, Defendants.

Civil Action No. 11–10056–MBB.

United States District Court,

D. Massachusetts.

March 31, 2013.

Bonita Saltzman, Hanson, MA, pro se.

Anne C. Rosenberg, Scott L. Machanic, William M. Zall, Cunningham, Machanic, Cetlin, Johnson & Harney LLP, Natick, MA, for Defendants.

MEMORANDUM AND ORDER RE: MOTION OF DEFENDANT, TOWN OF HANSON, FOR SUMMARY JUDGMENT (DOCKET ENTRY # 28); MOTION OF DEFENDANTS, MICHAEL FINGLAS, SR., AND JEAN MARIE SMITH, FOR SUMMARY JUDGMENT (DOCKET ENTRY # 30)

BOWLER, United States Magistrate Judge.

Pending before this court is a motion filed by defendant Town of Hanson (“the Town”) for summary judgment and a motion filed by defendants Michael Finglas, Sr. (“Finglas”) and Jean Marie Smith (“Smith”) (collectively “defendants”) for summary judgment. (Docket Entry 28 & 30). Plaintiff Bonita Saltzman (“plaintiff”) opposes both motions. On October 11, 2012, this court held a hearing and took the motions (Docket Entry 28 & 30) under advisement.

PROCEDURAL HISTORY

The five count pro se complaint filed on December 16, 2010, sets out the following claims against defendants: (1) a due process claim under 42 U.S.C. § 1983 (“section 1983”) for refusing to produce transcripts of a municipal hearing (Count One); (2) wrongful termination (Count Two); (3) breach of the implied covenant of good faith and fair dealing (Count Three); (4) termination without just cause (Count Four); and (5) intentional infliction of emotional distress (Count Five). On May 3, 2012, defendants filed an amended answer adding a statute of limitations defense. (Docket Entry # 24).

The Town filed the summary judgment motion on June 29, 2012. (Docket Entry # 28). Finglas and Smith also filed a motion for summary judgment on June 29, 2012. (Docket Entry # 30). Accompanying both motions were memorandums of law in support of summary judgment and a joint statement of material facts pursuant to LR. 56.1. (Docket Entry 29, 31 & 32). Plaintiff filed an opposition to both motions on July 23, 2012, to which defendants filed a reply on August 2, 2012. (Docket Entry 33 & 34). Plaintiff filed an “answer & opposition” to defendants' reply. (Docket Entry # 37). On January 24, 2013, this court denied defendants' motion to strike the answer and opposition but allowed them the opportunity to respond by January 31, 2013. Defendants did not file a response.

STANDARD OF REVIEW

Summary judgment is appropriate when “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Rule 56(c), Fed.R.Civ.P. “A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party.” Am. Steel Erectors, Inc. v. Local Union No. 7, Int'l Ass'n of Bridge, Structural, Ornamental & Reinforcing Iron Workers, 536 F.3d 68, 75 (1st Cir.2008). “A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law.” Id.

Facts are viewed in favor of the non-movant. Noonan v. Staples, Inc., 556 F.3d 20, 23 (1st Cir.2009). “Where, as here, the non-movant has the burden of proof and the evidence on one or more of the critical issues in the case is not significantly probative, summary judgment may be granted.” Davila v. Corporacion De Puerto Rico Para La Difusion Publica, 498 F.3d 9, 12 (1st Cir.2007); accord Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir.2006) (if moving party makes preliminary showing, non-moving party must “produce specific facts, in suitable evidentiary form, to establish the presence of a trial worthy issue” with respect to each element on which he “would bear the burden of proof at trial”).

Defendants submit a LR. 56.1 statement of undisputed facts. Uncontroverted statements of fact in the LR. 56.1 statement comprise part of the summary judgment record. See Cochran v. Quest Software, Inc., 328 F.3d 1, 12 (1st Cir.2003) (the plaintiff's failure to contest date in LR. 56.1 statement of material facts caused date to be admitted on summary judgment); Stonkus v. City of Brockton School Dep't, 322 F.3d 97, 102 (1st Cir.2003) (citing LR. 56.1 and deeming admitted undisputed material facts the plaintiff failed to controvert); Kenda Corp., Inc. v. Pot O'Gold Money Leagues, Inc., 329 F.3d 216, 225 (1st Cir.2003) (citing principle that “ ‘[p]ro se status does not insulate a party from complying with procedural and substantive law’ ”).

FACTUAL BACKGROUND

Plaintiff worked for the Town's Multi Service Center (“the Senior Center”) as the Assistant Supportive Day Program Coordinator from October 2004 until December 17, 2008. (Docket Entry # 1) (Docket Entry # 32, Ex. 1, pp. 11–17). The Supportive Day Program provides services for elderly clients, most of whom suffer from Alzheimer's or another form of dementia. (Docket Entry # 32, Ex. 2 & 9). Smith served as Director of Elder Affairs the entire time plaintiff was employed at the Senior Center and was responsible for the management of the Senior Center. (Docket Entry # 1). Diane McCarey (“McCarey”) was the Supportive Day Program Coordinator and plaintiff's immediate supervisor throughout her employment. (Docket Entry # 32, Ex. 1, p. 17).

The Town is a municipal corporation governed by a five member Board of Selectmen (“the Board”). (Docket Entry # 32, Ex. 6). At the time of plaintiff's termination, the Board consisted of Chairman James A. Egan (“Egan”), Vice Chairman Christopher L. Colclough (“Colclough”), James E. Armstrong (“Armstrong”), Stephen M. Amico (“Amico”) and Donald H. Howard (“Howard”). (Docket Entry # 1). The Board is the appointing authority for plaintiff's position of Assistant Supportive Day Program Coordinator at the Senior Center. (Docket Entry # 32, Ex. 6). It also served as the Personnel Board of the Town. (Docket Entry # 32, Ex. 10).

Finglas served as the Town Administrator for the duration of plaintiff's employment at the Senior Center. (Docket Entry # 1, Ex. 1; Docket Entry # 32, Ex. 8). As Town Administrator, he also served as the Personnel Director of the Town and was responsible for the administration of all personnel matters.¹ (Docket Entry # 32, Ex. 10). The Town Administrator was responsible for making any necessary recommendations to the Board about the dismissal of employees whose positions fell under the Board's jurisdiction. (Docket Entry # 32, Ex. 1, p. 138). The Assistant Supportive Day Program Coordinator position, plaintiff's position, fell under the jurisdiction of the Board. (Docket Entry # 32, Ex. 9).

Section 8G of the Town's personnel classification and compensation by-law allows termination of an employee “for just cause.” (Docket # 32, Ex. 10). In particular, the by-law states:

an employee may be terminated from employment by the Town Administrator for just cause after the employee has been given written warning by the Department Head, fails to show adequate improvement in work performance during the warning period and the relevant appointing body votes affirmatively for termination.

(Docket Entry # 32, Ex. 10). Prior to discharge of an employee recommended for termination, the Board conducts a hearing to review the recommendation to terminate. (Docket Entry # 32, Ex. 10 & 11). As noted above, if the Board voted affirmatively in favor of termination, the Town Administrator may terminate the employee for “just cause.” (Docket Entry # 32, Ex. 10).

On June 19, 2008, an incident occurred at the Senior Center during which a client wandered away (“the missing client incident”). (Docket Entry # 32, Ex. 1, pp. 59–62 & 67). The police were called and a search commenced. (Docket Entry # 32, Ex. 1, pp. 59–62). The client was eventually found in the Town library next door to the Senior Center a few hours later. (Docket Entry # 32, Ex. 1, pp. 59–62). During the time the client went missing, plaintiff had left the Senior Center and gone to the same library to renew her library books. (Docket Entry # 32, Ex. 1, pp. 59–62).

Plaintiff's job description includes “providing assistance to the Supportive Day Program Clients to [the] Senior Center Van.” (Docket Entry # 32, Ex. 13). A November 2007 memorandum to staff from McCarey dictates that all clients are assisted to vans. (Docket Entry # 32, Ex. 4). This entails “one person to assist with the van [and wait] until van leaves” and another person “stay[ing] with the SDC ² Program.” (Docket Entry # 32, Ex. 3). Plaintiff testified that a “verbal directive” required escorting clients to the van but did not designate the individual responsible. (Docket Entry # 32, Ex. 1, pp. 62–67). She also remembered that McCarey passed out “literature” during a 2007 staff meeting “that said the aide shall go to the van.” (Docket Entry # 32, Ex. 1, pp. 62–67). Plaintiff testified that she handled the matter appropriately because she had informed another staff member that she was leaving the floor to renew her library books so that staff member was therefore the individual responsible for the clients at the time of the missing client incident. (Docket Entry # 32, Ex. 1, pp. 62–67). As a result of the incident, Smith issued plaintiff a written warning on June 24, 2008, informing her that if there were any more infractions she would be recommending plaintiff's dismissal to the Town Administrator. (Docket Entry # 32, Ex. 14).

In a letter dated July 8, 2008, to plaintiff, McCarey gave plaintiff a written warning about two complaints she had received about plaintiff from the staff at the Senior Center. (Docket Entry # 32, Ex. 19). The complaints involved plaintiff delegating her clients and duties to other staff members and wandering away from the floor. (Docket Entry # 32, Ex. 19).³ Plaintiff was issued another written warning from Smith on July 18, 2008, advising her not to discuss details of personnel meetings with other staff members and clients at the Senior Center. (Docket Entry #...