Caron v. Silvia
Caron v. Silvia
Opinion of the Court
Judith Caron is a cigarette smoker. From 1980 until she was fired in 1988, she was employed as a social worker in the Attleboro office of the Department of Public Welfare (department). Caron’s smoking in the workplace was a source of controversy with her supervisors. Because of
Caron filed a complaint containing numerous counts against three individuals, two of whom were her supervisors. Ruling on a motion filed by the defendants, a Superior Court judge dismissed several counts of the complaint and granted summary judgment for the defendants on the others. Only one issue is raised on appeal: whether summary judgment was properly granted in favor of Caron’s two supervisors, named as defendants individually, on her claim under the Federal (42 U.S.C. § 1983 [1988]) and State (G. L. c. 12, §§ 11H and 11I [1988 ed.]) Civil Rights Acts
To determine whether the defendants may have violated clearly established law in this case, we are required to examine Caron’s claim, on the basis of the factual material presented to the motion judge, that she was discharged for exercising her First Amendment rights.
It is clear from the affidavits filed by all parties that for some time before her television appearances Caron had felt aggrieved by her treatment as a smoker in her particular workplace. The rights of smokers in the department’s Attleboro office had been the subject of litigation, and Caron had intervened as a party. Subsequently, the department instituted a State-wide policy concerning smoking which restricted her rights. Caron stated in her affidavit that she “complained to anyone who would listen” about the office policy, that she “became increasingly vocal about [her] treatment as a smoker,” and that she began “to attract media
The affidavits informed the motion judge adequately of the context of Caron’s speech. Caron’s televised remarks were made in the context of a long-standing internal office dispute. As to the content of the speech, Caron stated only that she was “invited” to appear on television programs “on smokers’ rights.”
Some knowledge of content is important in determining whether a person’s speech relates to a matter of public concern. It would not have been enough that Caron’s comments related to the department, an important public agency, as there is no indication that the comments suggested that the agency was not properly performing its responsibilities to the public, compare Roth v. Veteran’s Admn., 856 F.2d 1401, 1406 (9th Cir. 1988), or that the agency was deficient in a matter about which the public might be concerned, such as engaging in a pattern of unlawful discrimination, compare Matulin v. Lodi, 862 F.2d 609, 612-613 (6th Cir. 1988). On the other hand, the issue of smoking in public places has been the subject of legislation in Massachusetts, see G. L. c. 270, §§ 21 and 22, and there certainly has been considerable public debate about the dangers of smoking both to smokers and others in their immediate vicinity and the extent to which smoking should be tolerated in public places. Caron would not be disqualified from First Amendment protection merely because she had a personal stake in the controversy. The question is whether her television appearances were related to both her personal concerns and the broader issue of smoking policies in general.
We think her statement that she was “invited” to appear on programs “on smokers’ rights,” particularly in light of the form of those appearances, is sufficient to create an inference that she was addressing more than her own personal concerns. As to the forum in which Caron expressed herself, we
The question remains whether the defendants are immune from suit. The right of public employees not to be fired in retaliation for speaking on matters of public concern has been established since at least 1968, see Pickering v. Board of Educ., 391 U.S. 563, 568 (1968), and was affirmed in Connick v. Myers, 461 U.S. at 154, in 1983. Contrast Duarte v. Healy, 405 Mass. at 49, in which the rights of probationary fire fighter recruits with respect to a drug testing policy were held to be not clearly established. Considering the record as a whole, particularly the forum in which Caron expressed herself, we conclude that, at least for purposes of summary judgment, it was “clearly established” that Caron’s expression had sufficiently addressed a public issue to entitle
So ordered.
Caron appeared with counsel at a hearing before a designee of the Commissioner of Public Welfare on January 19, 1988. The hearing officer found insubordination amounting to just cause for Caron’s discharge based upon her refusal to appear at a meeting about her work performance unless she was allowed to tape record the meeting. The Commissioner accepted that finding.
The State Civil Rights Act claim was based upon allegations that the defendants, by threats, interfered with Caron’s rights to tape record a meeting, to smoke in the workplace, and “to speak out critically in public.” The judge actually dismissed the claim under Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). Only the free speech aspect of the claim is argued on appeal. The issue is the same as the one raised by the Federal Civil Rights Act claim, and the judge’s decision involved consideration of the affidavits. Therefore, we treat the judge’s order as to the speech portion of the State claim as one ordering summary judgment.
Caron properly does not contend that the Massachusetts Constitution affords her broader rights to free speech than the United States Constitution. See Colo v. Treasurer & Recr. Gen., 378 Mass. 550, 558 (1979); Smith v. Commissioner of Mental Retardation, 409 Mass. 545, 552 (1991). Nor does she contend that the Massachusetts Civil Rights Act would afford her greater rights in the present situation than does the Federal Civil Rights Act.
If the speech is determined to address a matter of public concern, two issues would remain: whether the interests of the employee in making the statement outweigh the State’s interest as employer in promoting efficient performance of its employees, Pickering v. Board of Educ., 391 U.S. 563, 568 (1968); and whether the employee’s speech was a substantial factor motivating the defendants to effectuate her discharge, Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).
Caron stated in her affidavit that before she appeared on “60 Minutes” she was told by a supervisor, not one of the two defendants involved in this appeal: “The Commissioner will be very unhappy if you do this segment on ‘60 Minutes.’ He has a long memory.” Caron makes similar but vague references in her affidavit to threats by the defendants. She states: “When the defendants discovered that I was to appear on these [Boston television] programs, attempts were made to keep me off them by denying me time away from my job, to which I was entitled, and for which, in one instance, I had received prior written approval.” Compare Kolodziej v. Smith, 412 Mass. 215 (1992).
Concurring Opinion
(concurring). Although I fully agree with the careful and sound treatment of this matter by the majority, I believe that the same result could be reached more directly. I am of opinion that the plaintiffs affidavit, cited by the majority in note 6 at 276, is sufficient to raise an issue of material fact as to whether the alleged actions of the defendants and certain of their colleagues (e.g., another supervisor) were threatening and were intended to intimidate or coerce the plaintiff to refrain from exercising her rights to free speech under the Federal and State Constitutions. See Batchelder v. Allied Stores Corp., 393 Mass. 819, 821, 822-823 (1985). This most certainly is a jury question at this stage of the proceedings.
The plaintiff must be afforded the opportunity to establish that the remarks attributed to the defendants were substantially accurate, and that their clear implications accurately reflected their state of mind. The granting of summary judgment in such cases “is disfavored.” Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991).
The abuse of power by public officials over their subordinates — whether by intimidation and coercion either to engage in improper conduct or, as alleged here, to refrain from exercising rights — must be extirpated. It is in this area that the courts, which are often the final forum to which victims of such abuse can turn, must act with particular care to find the truth. No conduct strikes me as being more coercive than for a government official, one vested with the public trust, to exercise his powers in the abusive manner here alleged. This
Reference
- Full Case Name
- Judith A. Caron vs. Edward Silvia & Another
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- 15 cases
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- Published