October 9, 2001

RYA W. ZOBEL,

U.S. DISTRICT JUDGE

Plaintiff, Brian J. Dasey ("Dasey"), a former probationary Massachusetts State Trooper, brings this action pursuant to the Massachusetts right to privacy statute, M.G.L. c. 214, § 1B ("Chapter 214"), the Federal Civil Rights Act, 42 U.S.C. § 1983, and the Massachusetts Civil Rights Act, M.G.L. c. 12, § 11H ("Chapter 12"). He claims monetary damages and injunctive relief on the grounds that defendants deprived him of his state statutory right to privacy, as well as his constitutional rights to privacy and due process of law surrounding the termination of his employment without a hearing. Defendants have moved for summary judgment on all counts. For the following reasons, Defendants' motion is granted.

These facts are not in dispute. On August 27, 1999, Plaintiff was enlisted as a trooper of the Massachusetts Department of State Police ("State Police"). On his employment application, and during his interview, Plaintiff represented that he did not use or possess illegal drugs. Shortly after his enlistment, Defendants came into possession of a videotape which showed Plaintiff and others smoking what appeared to be marijuana. On September 14, 1999, he was given a "General Discharge" from the State Police because he allegedly made false statements about prior drug use in his application and interview. Plaintiff's discharge occurred while he was on probationary status, that is, during the first year of his employment. Massachusetts State Police Rules and Regulations ("State Police Rules"), Sec. 7.1.3 states:

During the first twelve months following a member's initial enlistment, members shall be retained on a probationary status. During the probationary period, the Colonel/Superintendent may, as allowed by law, discharge any member.

Plaintiff denied any allegations that the tape showed him smoking marijuana, and now contends that Defendants' viewing of the tape violated his right to privacy, and that the failure of the Defendants to provide him with a pre-termination hearing constituted a violation of his constitutional "property" interests as protected by the Due Process Clause of the Fourteenth Amendment. In support of his contention that he had a property interest in continued employment as a state trooper, Plaintiff cites to Article 2, sec.1 of the collective bargaining agreement (the "CBA") between the Police Association of Massachusetts and the Commonwealth of Massachusetts. Article 2, sec. 1 states, in relevant part:

Except as otherwise limited by an express provision of this Agreement, the Employer shall have the right to exercise complete control and discretion over its organization and technology, including . . . the suspension, demotion, discharge, or any other appropriate action against its employees with just cause . . . .

In addition, Plaintiff relies heavily on Article 3 of the CBA, which states that in the event of a conflict between a matter addressed by both the State Police Rules and the CBA, the terms of the CBA shall prevail.

I. Invasion of Privacy (Counts I-III)

Plaintiff alleges, in Counts I-III, and part of Count IV, that the Defendants' viewing of the videotape, and subsequent termination of his employment based on the same, amounted to an "unreasonable, substantial or serious interference" with his privacy rights, as proscribed by Chapter 214, § 1B. Defendants argue that they are insulated from Plaintiff's invasion of privacy claims by the doctrine of qualified immunity. A decision on qualified immunity, however, need not be reached, as Plaintiff has failed to set forth sufficient facts to support a finding of an unreasonable interference with a privacy interest within the meaning of Chapter 214, § 1B.

For purposes of the Massachusetts Privacy Act, private facts are not simply those that are not public, that is, not generally or widely known. French v. United Parcel Service, Inc., 2 F. Supp. 2d 128, 131 (D.Mass. 1998). Rather, Chapter 214, § 1B prohibits the disclosure of information that is highly personal or intimate in nature. Bratt v. Int'l Business Machs. Corp., 392 Mass. 508, 467 N.E.2d 126, 133-34 (1984). Plaintiff cannot claim that the tape in question was highly personal or intimate in that he allowed himself to be videotaped with multiple participants, any one of whom might have either talked to his superiors or voluntarily disclosed the tape to another third party. See French, 2 F. Supp. 2d at 131 (D.Mass. 1998)("Three other UPS employees took part and observed the events . . . any of these persons was free to describe the incident;" finding that the event was not private); Tedeschi v. Reardon, 5 F. Supp. 2d 40 (D.Mass. 1998)(officer parked outside political event had no expectation of privacy from employer running a license plate check); Broderick v. Police Commissioner, 368 Mass. 33, 330 N.E.2d 199 (1975)(police officer had no privacy interest in conduct that occurred at a public law enforcement gathering).

Even if Plaintiff had set forth facts sufficient to meet the statutory requirement of a "private" action, he would not be able to overcome the second prong of the Chapter 214 inquiry, namely, a showing that Defendants' viewing of the tape and subsequent termination of Plaintiff was unreasonable. An "employer's legitimate interest in determining the employees' effectiveness in their jobs [is] balanced against the seriousness of the intrusion on the employees' privacy." Bratt, 467 N.E.2d at 135. In cases involving police officers, employers have a "compelling interest in determining whether [officers] are using drugs and in deterring such use," which outweighs an officer's privacy interests under Chapter 214. O'Connor v. Police Commissioner of Boston, 408 Mass. 324, 330, 557 N.E.2d 1146, 1150 (1990)(warrantless, suspicionless urine testing of police cadets held reasonable). Drug use by police officers "has the obvious potential, inimical to public safety of fellow officers, to impair the perception, judgment, physical fitness, and integrity of the users." Id. at, 328. Indeed, the "unlawful obtaining, possession, and use of drugs cannot be reconciled with respect to the law." Id. As discussed above, Plaintiff has not set forth sufficient facts to show that he had a privacy interest in the videotape. Therefore, weighing the relative lack of intrusion on Plaintiff's privacy against the compelling interest in preventing drug use by state police officers, Defendant's receipt of the videotape and subsequent termination of Plaintiff based on the same was reasonable as a matter of law.

II. Civil Rights Violations (Counts IV-VI)

Plaintiff's remaining counts allege violations of his civil rights, arising from the termination as a state trooper. He argues that the CBA's "just cause" language gives him a right to a termination hearing and therefore a reasonable expectation in continued employment. Regardless of any requirement in the CBA of a finding of "just cause" in all termination proceedings, it does not apply to Plaintiff. His status as a probationer prevents him from claiming a reasonable expectation of continued employment, sufficient to establish a constitutional property interest protected by the Due Process Clause of the Fourteenth Amendment.

A. Plaintiff's Probationary Status Under State Law

Plaintiff has a constitutionally protected property interest in his employment if he has a reasonable expectation that his employment will continue. Bleeker v. Dukakis, 665 F.2d 401 (1st Cir. 1981). Where an independent source does not provide a property interest in the form of an entitlement to continued employment, the constitution will not offer procedural protections. Bishop v. Wood, 426 U.S. 341, 350, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976); Bleeker, 665 F.2d at 403. Such an entitlement "must be decided by reference to state law." Bishop, 426 U.S. at 344. Plaintiff has failed to point to any Massachusetts law that supports his entitlement to continued employment as a state trooper. To the contrary, the State Police Rules specifically address the implications of probationary status in section 7.1.3, by stating that any officer may be discharged during the first twelve months of enlistment. The State Police Rules do not place any restrictions or conditions on such a discharge, nor do they afford the probationer a right to a hearing. See Gonzalez v. Police Commissioner of Boston, 6 Mass. App. Ct. 873, 873, 375 N.E.2d 342 (1978)(holding that terminated probationary officer was not entitled to a hearing under the due process clause of the Fourteenth Amendment).

Massachusetts statutory law supports the proposition that a probationary trooper does not have a reasonable expectation in continued employment. See M.G.L. c. 22C, § 13. Chapter 22C mandates that a trial board be convened for any trooper who has served in the State Police for one year or more. Chapter 22C does not, however, speak to the issue of whether a hearing must be afforded to a trooper within his or her first year of enlistment. According to accepted statutory interpretation, the fact that the legislature specifically tailored the right to a hearing to those troopers who have served for one year or more, implies that this right need not be afforded to those who have served less than a year. Police Commissioner of Boston v. Cecil, 431 Mass. 410, 413, 727 N.E.2d 846 ("[A] statutory expression of one thing is an implied exclusion of other things omitted from the statute")(quoting Harborview Residents' Comm. Inc. v. Quincy Hous. Auth., 368 Mass. 425, 432, 332 N.E.2d 891 (1975)).

Likewise, the policy behind probationary status supports this proposition. The Supreme Judicial Court recently addressed the reasons for M.G.L. c. 31, § 61, which sets forth the probationary period and evaluation procedure of municipal police officers, stating:

With respect to police officers and fire fighters, in particular, the Legislature recognized the special need of a prolonged probationary period from six months to one year . . . . Courage, good judgment, and the ability to work under stress in the public interest and as part of an organization, are qualities that are not quickly perceived. The policy of the statute is to ensure sufficient time for a careful determination whether they are present in sufficient degree.

Police Commissioner of Boston v. Cecil, 431 Mass. 410, 414, 727 N.E.2d 846, 848 (2000)(citing Leominster v. Int'l Bhd. of Police Officers Local 338, 33 Mass. App. Ct. 121, 127, 596 N.E.2d 1032 (1992). In keeping with the policy of providing effective law enforcement to the public, the State Police Rules and statutes give the Colonel/ Superintendent the necessary discretion to make termination decisions during the critical first year of a trooper's enlistment. It is not for this court to judge the propriety of these decisions under a due process claim, as the termination process was procedurally sound as a matter of law. As the State Police Rules, case law, and statutes make clear, a probationary trooper such as the Plaintiff, who may be terminated for any reason without a hearing, cannot have a reasonable expectation of continued employment sufficient to establish a property right protected by the Fourteenth Amendment.

B. The CBA

Plaintiff's reliance on the CBA to provide a property interest in continued employment is also unavailing. He cites Article 2, Section 1, the Managerial Rights provision which details numerous rights not of state troopers, whether in probationary or permanent status, but of the employer. Included among these managerial rights is the right to "exercise complete control and discretion over its organization and technology, including . . . the suspension, demotion, discharge, or any other appropriate action against its employees with just cause . . . ." To suggest that this clause grants rights to Plaintiff is to stand it on its head. Such an interpretation is especially implausible as it is not supported by the applicable statute concerning termination hearings for troopers who have served in the State Police for more than one year. Thus, Plaintiff could not have reasonably relied on Article 2 as an entitlement to continued employment.

Furthermore, "the use of the words 'for cause' does not magically, or always, transform a job into protected property; the focus must remain upon the nature of the employee's legitimate expectation of continued entitlement to his or her job." Bennett v. City of Boston, 869 F.2d 19, 21 (1st Cir. 1989). As discussed earlier, Plaintiff knew that, as a probationer, he was subject to strict review during the first year of his employment, during which time he could be discharged for any reason without a hearing.

Even if the CBA did trump the case law and state statutes, it is far from clear that the "just cause" language would be sufficient to give Plaintiff a property interest. In Lydon, the court addressed a CBA provision that prohibited an employee from being discharged "for disciplinary reasons without just cause," much like the clause at issue here prevents "any other appropriate action" without just cause. The court stated, in dicta, that the provision left open the possibility that an employee could be discharged on grounds, other than those based upon disciplinary reasons, without just cause. Id. at *2. Therefore, the provision alone did not "reasonably engender[ ] a sufficient expectation of continued employment to create a property interest." Id. Similarly, the phrase "any other appropriate action against its employees with just cause," could be read to allow the specified actions of "suspension," "demotion," and "discharge" for any reason at all. Any reliance on such an ambiguous phrase, as an entitlement to a property interest in continued employment, is simply not reasonable. Accordingly, Defendants' motion to dismiss is allowed and judgment may be entered in their favor.

10/9/01

RYA W. ZOBEL

UNITED STATES DISTRICT JUDGE