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Pereira v. Commissioner of Social Services8/9/2000
Suffolk.
May 2, 2000.
Constitutional Law, Freedom of speech and press. Public Employment, Termination. Civil Rights, Immunity of public official.
Civil action commenced in the Superior Court Department on September 9, 1996.
The case was heard by Herman J. Smith, Jr., J., on motions for summary judgment.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
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. She brought this action pursuant to G. L. c. 30A (administrative procedure act), G. L. c. 231A (declaratory judgment), G. L. c. 249, Sect. 5 (mandamus), and 42 U.S.C. Sect. 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, Sect. 5, were barred as untimely filed. 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. 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.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. Sect. 1983, and the trial on liability and damages on Pereira's claim for intentional infliction of emotional distress, all of which the judge allowed.
The commissioner's appeal from the denial of her claim for qualified immunity and the department's appeal from the judge's order
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