Sauro v. Lombardi

• Decision Date: 02 December 2014
• Docket Number: C.A. PC-2014-3388
• Parties: JOHN SAURO; KAREN SAURO, Plaintiffs, v. JAMES LOMBARDI, in his capacity as Treasurer of the CITY OF PROVIDENCE; RETIREMENT BOARD OF THE EMPLOYEES RETIREMENT SYSTEM OF THE CITY OF PROVIDENCE, Defendants.
• Court: Rhode Island Superior Court

JOHN SAURO; KAREN SAURO, Plaintiffs,
v.
JAMES LOMBARDI, in his capacity as Treasurer of the CITY OF PROVIDENCE; RETIREMENT BOARD OF THE EMPLOYEES RETIREMENT SYSTEM OF THE CITY OF PROVIDENCE, Defendants.

C.A. No. PC-2014-3388

Superior Court of Rhode Island

December 2, 2014

Providence County Superior Court.

For Plaintiff: Joseph J. Voccola, Esq. Thomas F. Connors, Esq.

For Defendant: Kenneth B. Chiavarini, Esq.

DECISION

CARNES, J.

The matter before the Court involves a pension dispute between John Sauro^[1](Plaintiff or Mr. Sauro) and the City of Providence (the City), sued through its treasurer, James Lombardi, as well as the Retirement Board of the Employees Retirement System of the City of Providence (the Board) (collectively, Defendants). Plaintiff has filed a twelve count First Amended Complaint alleging primarily constitutional violations by Defendants in regard to the suspension of his pension. In addition to compensatory damages, permanent injunctive relief, declaratory relief, and attorney's fees, Plaintiff additionally moves this Court for a preliminary injunction requiring the City to restore Plaintiff's pension while this litigation is pending. This Court held a hearing on the preliminary injunction over the course of some five days^[2] on October 1, 2, 3, 6, and 7, 2014. During the hearing, the Court heard from nine witnesses^[3] and received seventy-eight exhibits. Jurisdiction is pursuant to G.L. 1956 § 8-2-13 (exclusive jurisdiction of equity actions) and Super. R. Civ. P. 65(a) (preliminary injunction). For the reasons set forth below, this Court denies Plaintiff's Motion for a Preliminary Injunction.

I Background

A Background Facts of the Case^[4]

On August 5, 1991, Plaintiff was hired as a firefighter with the Providence Fire Department. (First Am. Compl. ¶ 8.) In August of 1998, Mr. Sauro and another unnamed firefighter were carrying a large man down three flights of stairs in a stair chair^[5] because the man was having breathing problems. (Tr. at 7-8, Vol. I, Oct. 1, 2014.) At some point, the other firefighter dropped the chair, and the full weight of the chair and its occupant came down on Plaintiff, resulting in an injury to Plaintiff's right shoulder. Id. at 8-9. Mr. Sauro suffered an "acromioclavicular joint separation and focal through and through full thickness rotator cuff tear" in his right shoulder. (First Am. Compl. ¶ 18.)

Mr. Sauro began receiving treatment for his shoulder from an orthopedic specialist, Dr. David Moss. (Tr. at 10, Vol. I, Oct. 1, 2014.) Mr. Sauro's primary care physician, Dr. Tony Wu, and Dr. Moss both prescribed a physical therapy routine for Mr. Sauro because he was not a good candidate for corrective surgery. Id. at 10-12. At some later point in time, Dr. Wu indicated to Mr. Sauro that he had reached maximum medical improvement from the physical therapy, but Mr. Sauro would be unable to return to work as a firefighter. Id. at 13-14.

On January 8, 1999, Plaintiff applied for accidental disability retirement^[6] with the City. (Defs.' Mem. at 1.) As part of the application process, Mr. Sauro had to undergo three independent medical evaluations (IMEs) with doctors selected by the City. (Tr. at 85-86, Vol. I, Oct. 1, 2014.) All three of the IME doctors, as well as Plaintiff's own doctor, concluded that Plaintiff was permanently disabled as a firefighter. Id. at 17. The Board granted Mr. Sauro accidental disability retirement in October of 2000. Id. at 2.

Under the City of Providence pension ordinance, each year, a disability pensioner is required to submit a recertification of disability from his or her own doctor. Providence City Code § 17-189(8)(a) (2013).^[7] Additionally, the City may send a disability pensioner for an IME with a physician of the City's choosing once per year. Id. The option to send a pensioner for an IME has long been part of the pension system, but the recertification process was added to the ordinance in 2007 after a pension study commission indicated a need to reevaluate disability pensioners regularly. Providence City Council Resolution 2007-49 § 5 (November 8, 2007); see Tr. at 438, Vol. III, Oct. 6, 2014. Mr. Sauro complied with the annual recertification when he began receiving notifications from the City. (Tr. at 442, Vol. III, Oct. 6, 2014.)

Eventually, Mr. Sauro's physical therapy progressed to weight training, first at the therapy office and then later, on Plaintiff's own, in a public gym. (Tr. at 11-12, Vol. I, Oct. 1, 2014.) News reporter Tim White surreptitiously filmed Mr. Sauro during his gym workouts and in April 2011 aired a story on Channel 12 Eyewitness News questioning how Mr. Sauro could be lifting weights and receiving a disability pension. (Exs. 5, 13, 14, 22, 57) The initial story led to a flood of media attention and a City investigation of Mr. Sauro for potential fraud on the pension system. (First Am. Compl. ¶ 25; Ex. 7.) Several officials of the City and the Board^[8]made statements to the media either as part of the initial story or follow-up pieces regarding their reaction to the video of Mr. Sauro, generally indicating surprise and a desire to investigate. (Exs. 5, 14, 15.)

Based on the concern that Plaintiff's injury may have healed, the City directed Plaintiff to appear for an IME with Dr. Anthony DeLuise, Jr. on June 7, 2011. (Exs. 6, 7, 8.) Dr. DeLuise's report, which was submitted to the Board, indicated that Mr. Sauro is disabled as a firefighter, but the report also recommended additional testing because Dr. DeLuise did not have access to certain testing equipment and is not qualified to give a psychological evaluation. (Ex. 12.) On July 27, 2011, the Board met to review Dr. DeLuise's report and ordered Mr. Sauro to submit to a functional capacity evaluation based on Dr. DeLuise's recommendations. (Ex. 17.) However, the City also announced publicly that there would be no criminal charges brought against Mr. Sauro in regard to his activities as depicted in news accounts. (Ex. 13.)

Mr. Sauro's attorney filed objections to the Board's order for the additional testing, arguing, inter alia, that the additional testing constituted a second IME, which the Board was not authorized to order under Providence City Code § 17-189(8). (Ex. 21.) Initially, the Board maintained its order for Mr. Sauro to undergo the functional capacity evaluation and ordered Mr. Sauro to obtain a prescription from his doctor for the evaluation. (Ex. 23.) Mr. Sauro went to Dr. Moss, who refused to write the prescription for the functional capacity evaluation because he examined Mr. Sauro and concluded that Mr. Sauro remained disabled and the functional capacity evaluation would serve no purpose. (Exs. 25, 26.)^[9] In May of 2012, the Board voted to remove Mr. Sauro from its agenda, and no further tests were ordered. (Tr. at 301-04, Vol. II, Oct. 3, 2014.)

In July of 2013, Mr. Sauro was noticed by the City to attend another IME, this time with Dr. Brian McKeon in Waltham, MA. (Ex. 33.) Plaintiff's attorney objected because the pension ordinance, at that time, required that IMEs "be made at the place of residence of the pensioner or other place mutually agreed upon . . . [, ]" and Mr. Sauro did not reside in Massachusetts. (Ex. 34.) In response to this objection, the City cancelled the IME. (Defs.' Mem. at 3.)

On July 31, 2013, the Providence City Council voted to amend the pension ordinance to remove the location restriction for IMEs, among other changes. Providence City Council Resolution 2013-35 § 1 (July 31, 2013). As a result, the pension ordinance was amended to its present form. (Defs.' Ex. A.) In August 2013, Plaintiff was again noticed for an IME with Dr. McKeon to be held on September 13, 2013. (Tr. at 582-83, Vol. IV, Oct. 7, 2014.) Mr. Sauro stated that he consulted with his psychologist, psychiatrist, and colorectal doctor regarding whether to attend the IME, and they ordered him not to attend as it could be life-threatening to him. (Tr. at 61, Vol. I, Oct. 1, 2014.)

On September 10, 2013, Ms. Sauro emailed Ms. Bailey requesting that the IME be cancelled because it was physically and financially impossible for Mr. Sauro to attend as he was bedridden and had been ordered not to travel out of state. (Pl.'s Ex. B.) According to Ms. Bailey, she and Ms. Sauro spoke on the phone on September 12, 2013, and Ms. Bailey indicated to Ms. Sauro that she would reschedule the appointment but would need a note from Mr. Sauro's doctor to validate Ms. Sauro's claims. (Tr. at 390-93, Vol. II, Oct. 3, 2014.) Ms. Sauro testified that she called Dr. Denby—Mr. Sauro's psychiatrist—to request a note. (Tr. at 596-97, Vol. IV, Oct. 7, 2014.) She testified that Dr. Denby stated that he wanted to see Mr. Sauro in person, so she and Mr. Sauro went to Dr. Denby's office. (Tr. at 597-98, Vol. IV, Oct. 7, 2014.) After the appointment with Dr. Denby, Mr. and Ms. Sauro continued to Office Max (to fax Dr. Denby's note to Ms. Bailey), CVS, a gas station, Stop and Shop, and Mr. Sauro's attorney's office. (Tr. at 66-67, Vol. I, Oct. 1, 2014.)

Unbeknownst to Mr. Sauro, the City had hired a private investigator to follow Mr. Sauro starting on September 11, 2013, and continuing for a few days. (Tr. at 516, Vol. III, Oct. 6, 2014.) Brandon Lowe, the private investigator, videotaped Mr. Sauro's activities on September 12, 2013, noting that Mr. Sauro operated the Sauros' vehicle for part of the day. (Ex. 58, at 3-5.) Mr. Lowe also recorded Mr. and Ms. Sauro departing their home again on September 13, 2013, this time stopping at Mr. Sauro's attorney's office. (Ex. 58, at 6.)

The City rescheduled Mr. Sauro's IME with Dr. McKeon for October 16, 2013. (Ex. 41.) On October 15, 2013, Plaintiff's attorney sent an objection to the City, and Plaintiff did not attend the October 16, 2013, IME. (Ex. 43.) In response to Mr. Sauro's failure to attend, the Board again took up the matter of his pension. (Exs. 46, 47.)...