United States Court of Appeals
For the First Circuit
No. 03-1216
VERONICA MARD,
Plaintiff, Appellant,
v.
TOWN OF AMHERST, MASSACHUSETTS,
KATE ZLOGAR, AND KEITH HOYLE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Lynch, Lipez, and Siler,* Circuit Judges.
Harold L. Lichten and Pyle, Rome, Lichten, & Ehrenberg, P.C.
for appellant.
Richard W. Jensen and Morrison, Mahoney & Miller, LLP for
appellees.
November 20, 2003
*
Of the Sixth Circuit, sitting by designation.
LIPEZ, Circuit Judge. In her action brought under 42
U.S.C. § 1983, plaintiff Veronica Mard appeals the district court's
award of summary judgment in favor of defendants Town of Amherst et
al. Mard complains that the defendants terminated her injury leave
benefits without providing adequate notice or opportunity to be
heard, in violation of her right to due process under the
Fourteenth Amendment of the United States Constitution. The
district court granted the defendants' motion for summary judgment
and denied the plaintiff's cross motion for summary judgment.
Finding compliance with the requirements of due process, we affirm
the decision of the district court.
I.
We recite the facts in the light most favorable to the
appellant, drawing all reasonable inferences in her favor. See
Macone v. Town of Wakefield, 277 F.3d 1, 5 (1st Cir. 2002). On
September 2, 2000, Mard, a firefighter for the Town of Amherst,
Massachusetts, answered an emergency ambulance call at Amherst
College. While proceeding down a hill with a stretcher to retrieve
a patient, Mard slipped and fell, landing on her back and shoulder.
As a result of the fall, Mard received injuries to her back, neck,
shoulders, left arm, left leg, right knee, and ankle.
After Mard completed the call and returned to the
station, she informed her supervisor, Captain Donald R. McKay, that
she was injured and would need to go home. Mard did not return to
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work and began receiving injury leave benefits pursuant to Mass.
Gen. Laws ch. 41, § 111F. The statute provides that whenever a
firefighter of a city or town "is incapacitated for duty because of
injury sustained in the performance of his duty," he or she shall
be granted paid leave "for the period of such incapacity." Mass.
Gen. Laws ch. 41 § 111F. Such leave may not extend beyond "any
period after a physician designated by the board or officer
authorized to appoint police officers or fire fighters in such
[town] determines that such incapacity no longer exists." Id.
As a member of the Amherst Fire Fighters, Local 1764,
I.A.F.F. ("the Union"), Mard was a party to a collective bargaining
agreement between the Union and the Town. The agreement, a copy of
which is sent to all union members within their first month of full
employment, specifies the rights and obligations of union members
who are sick or injured and affirms that the provisions of the
agreement "shall not be less than the provisions of [Mass. Gen.
Laws ch. 41, § 111F]." Article 21.5 of the agreement further
provides:
The employee shall upon request submit medical
evidence to the Fire Chief on those occasions on which
leave as provided herein is claimed when the employee
has been treated by a physician or other medical
practitioner, including, but not limited to, treatment
by an osteopath or chiropractor. The Fire Chief may
require the timely presentation of such medical
evidence or other evidence reasonably satisfactory to
him in connection with a claim for sick or injury
leave hereunder in the event he reasonably suspects
that the employee making such claim was not
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legitimately incapacitated from performing his duties
as an employee.
Under Article 21.11 of the collective bargaining agreement, the
Fire Chief, acting on behalf of the Town, may determine the length
and extent of a union member's injury:
Upon . . . his own initiative the Fire Chief will arrange
for medical evaluation of length and extent of
disability, including an opinion as to the ability of the
employee to perform limited duty. The Fire Chief shall
make a determination of suitability for duty taking into
consideration the needs of the department . . . .
As provided by Article 21.12, any "disputes regarding
interpretation or application of [the] policy [are] subject to the
grievance and arbitration procedure" set forth in the agreement.
In June 2001, the Town requested that the plaintiff
attend an independent medical examination conducted by neurologist
Linda C. Cowell. Dr. Cowell conducted an extensive evaluation and
prepared an eight-page report for the Town, which included medical
records provided by Mard. The report noted that "the examining
process was explained to the examinee and she understands there is
no patient/treating physician relationship and the report will be
sent to the requesting client." It concluded that Mard "could
perform a light duty job with essentially no lifting."
Immediately after Mard's examination by Dr. Cowell,
another neurologist, Brian Smith, prescribed medication for
migranes that Mard said she had been experiencing. Mard notified
the Town that Dr. Smith had placed her on medication that caused
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her dizziness and disequilibrium and that therefore precluded her
from driving. In response to this information, the Town approved
the continuation of Mard's injury leave.
On August 29, 2001, the Town sent Mard a letter notifying
her that "an appointment for an Independent Medical Examination
ha[d] been arranged for [her]" with a neurologist, Dr. William
Donahue. The letter instructed Mard to bring to the appointment
"any X-rays, CT scans, MRI studies, [or] other medical records
pertaining to [her] injury" and warned that "pursuant to Section 45
of the Workers Compensation Act, failure to attend or obstruction
of this examination may suspend your right to compensation."
Mard attended her appointment with Dr. Donahue and
brought with her medical records from her orthopedic surgeon,
primary care physician, and chiropractor, as well as records
relating to a prior MRI. Mard claims that Dr. Donahue did not ask
for her medical records and refused to review the records when she
offered them to him. She states that Dr. Donahue told her that he
did not wish her to provide any unsolicited information and that
she should answer only those questions he asked. She further
claims that the physician conducted an eleven-minute examination,
asking only general questions and neglecting to inquire about her
migraines or the side effects of her migraine medication.
According to Mard, Dr. Donahue did not review her March 2001 MRI or
the initial study of the migraines and failed to address her
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migraines or the effects of her medication in his report to the
Town.
The Town, on the other hand, argues that Mard "had the
opportunity and did, in fact, present her side of the story to Dr.
Donahue," and that the doctor's opinion was "based on reliable
information, including his physical examination, the plaintiff's
description of her symptoms, and a medical records review." In his
four-page report to the Town, Dr. Donahue stated that he took a
medical history from Mard and reviewed her medical records,
including "an extensive independent medical examination
particularly in terms of a history that was done by Dr. Linda
Cowell." He discussed in some detail the results of his physical
examination of Mard and related Mard's description of her own
symptoms. He noted that he did not have available for review the
April 2001 MRI study or any "significant recent records of
treatment and evaluation." After the evaluation, Dr. Donahue
determined that Mard would be able to work "in moderate duty
capacity," with certain limitations.
On October 4, 2001, Keith Hoyle, the Town's Fire Chief,
notified Mard by letter that she would "no longer be on injured
duty status effective October 5, 2001," at which time she would be
assigned "moderate duty." When Mard did not return to work on
October 5, the Town terminated her benefits. On October 9, 2001,
Mard filed a grievance under Article 26.1 of the collective
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bargaining agreement, which provides extensive procedures for
resolving grievances, defined as "any difference between the
parties to [the] Agreement relating to its interpretation,
application, or administration . . . ." Pursuant to the grievance
procedures established by the agreement, the Grievance Committee
found that a grievance existed and referred the dispute to Chief
Hoyle. After meeting with the Committee, the Fire Chief agreed
that Mard could remain on personal sick leave pending the outcome
of the grievance procedure. Also in accord with the collective
bargaining agreement, the Committee forwarded the grievance to the
Town Manager, who conducted a hearing on November 19, 2001 that
involved both parties to the grievance. On November 26, 2001, the
Town Manager determined that Mard was no longer eligible for
injured on duty status under § 111F or § 21.9. Three days later,
the Union notified the Town of its intent to file for arbitration
on Mard's behalf as provided for by the collective bargaining
agreement.
On December 12, 2001, Mard filed a complaint in the
United States District Court for the District of Massachusetts,
alleging that the Town terminated her injury leave benefits without
providing adequate notice and hearing as required by the Due
Process Clause of the Fourteenth Amendment.1 Mard filed a motion
1
Donald R. McKay was originally a plaintiff in this action but
withdrew from the suit on February 19, 2002.
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for a preliminary injunction and summary judgment on March 12,
2002. On April 15, 2002, the Town filed its answer to the
complaint.
On May 17, 2002, while the arbitration and civil lawsuit
were pending, the Union and the Town executed a settlement
agreement. It provided, in part:
Whereas, the parties have reached agreement to settle all
issues with regard to the grievance and they intend by
the settlement to resolve all outstanding issues relative
to all allegations contained in the grievance . . . .
The agreement restored Mard to injured on duty status retroactively
to the date on which it had been converted to sick leave, and
accorded to her all benefits that would have accrued had this
status not been withdrawn. It further provided that Mard should
continue to receive benefits pursuant to § 111F until the Hampshire
County Retirement Board rendered a decision on her pending
Involuntary Application for Accidental Disability Retirement
Benefits.
The Town moved for summary judgment in the civil lawsuit
on November 20, 2002. On January 16, 2003, the district court held
a hearing on the cross motions. At the conclusion of this hearing,
the court ruled from the bench that summary judgment should be
entered for the Town. To implement this ruling, the court issued
an order on January 17, 2002, denying Mard's motion for a
preliminary injunction and cross motion for summary judgment and
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granting the Town's cross motion for summary judgment. In an
accompanying memorandum, the district court summarized the reasons
for its decision to enter summary judgment in favor of the Town,
referring to its bench decision for a more complete explanation.
The court's ruling rested on three grounds: 1) the independent
medical examination that led to the termination of Mard's benefits
provided her with constitutionally adequate notice and an
opportunity to be heard; 2) Mard was afforded constitutionally
adequate post-deprivation due process pursuant to the Parratt-
Hudson doctrine; and 3) the grievance settlement entered into by
the parties constituted a waiver of Mard's due process claims.
We review the district court's grant of summary judgment
de novo, construing the evidence in the light most favorable to the
non-moving party. Wojcik v. Mass. State Lottery Comm'n., 300 F.3d
92, 98-99 (1st Cir. 2002). Summary judgment is appropriate where
the evidence shows that "there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law." Barbour v. Dynamics Research Corp., 63 F.3d 32,
36-37 (1st Cir. 1995) (quoting Fed.R.Civ.P. 56(c)). We may affirm
the award of summary judgment on any ground with adequate support
in the record. Houlton Citizens' Coalition v. Town of Houlton, 175
F.3d 178, 184 (1st Cir. 1999). We focus on the district court's
due process rulings.
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II.
The threshold issue in a procedural due process action is
whether the plaintiff had a constitutionally protected property
interest at stake. Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 538-41 (1985); Bd. of Regents v. Roth, 408 U.S. 564, 576-78
(1972). If she did, the State could not deprive her of this
property without due process of law under the Fourteenth Amendment.
Loudermill, 470 U.S. at 538.
Property interests are "created and their dimensions are
defined by existing rules or understandings that stem from an
independent source such as state law." Bd. of Regents v. Roth, 408
U.S. at 577. Section 111F of the Massachusetts statute creates
such an interest for firefighters injured in a work-related
accident. See Gaffney v. Silk, 488 F.2d 1248, 1250 (1st Cir.
1973). Mard's status under state law as a firefighter who was
found to be "incapacitated for duty because of injury sustained in
the performance of his duty without fault of [her] own" gave her a
property interest in the continued receipt of injury leave benefits
that was protected by constitutional due process guarantees. Mass.
Gen. Laws ch. 41, § 111F; see Loudermill, 470 U.S. at 538-39.
Once we determine that Mard possessed a constitutionally
protected property interest in the continued receipt of her § 111F
benefits, we must next ask what procedures were required before the
Town could constitutionally deprive her of these benefits. It is
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well established that "individuals whose property interests are at
stake are entitled to notice and an opportunity to be heard."
Dusenbery v. United States, 534 U.S. 161, 167 (2002)(internal
quotation marks omitted). Mard argues that the Town failed to
provide her with constitutionally adequate notice and an
opportunity to be heard before terminating her injury leave
benefits. We examine each of these claims in turn.
A. Notice
Mard claims that the district court erred in determining that
the Town provided her with constitutionally sufficient notice of
the impending termination of her § 111F benefits. She argues that
she "had no knowledge that her examination with Dr. Donahue could
result in the termination of her benefits either before or
immediately after the examination" and that she did not learn of
the contemplated action until she received a letter on October 4,
2001, two weeks after her appointment with Dr. Donahue, informing
her that her benefits would be terminated the next day.
Although we view the facts in the light most favorable to the
appellant, we cannot conclude that the notice provided by the Town
was constitutionally deficient. Due process requires notice that
is "reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an
opportunity to present their objections," Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950), and that
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affords "the affected individual . . . a fundamentally fair chance
to present his or her side of the story." Puerto Rico Telephone Co.
v. Telecommunications Regulatory Bd. of Puerto Rico, 189 F.3d 1, 19
(1st Cir. 1999) (quoting In re Nineteen Appeals Arising Out of the
San Juan Dupont Plaza Hotel Fire Litig., 982 F.2d 603, 611 (1st
Cir. 1992)); see Mathews v. Eldridge, 424 U.S. at 333 (requiring
for due process purposes "the opportunity to be heard 'at a
meaningful time and in a meaningful manner'"). "The purpose of
notice under the Due Process Clause is to apprise the affected
individual of, and permit adequate preparation for, an impending
'hearing.'" Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 12,
14 (1978).
This is not a case where the plaintiff's benefits were
terminated without any prior notice or opportunity to respond. See
Kercado-Melendez v. Aponte Roque, 829 F.2d 255, 263 (1st Cir. 1987)
(due process violation where Department of Public Instruction
dismissed school district superintendent without prior notice or
hearing). Nor is it a case where the plaintiff was notified of the
pending termination but not of the availability of an opportunity
to present her objections. Memphis Light, 436 U.S. at 14 (finding
due process violation where petitioners were notified that their
utility services would be discontinued if payment was not made by
a certain date but were not informed of the availability of "'an
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opportunity to present their objections' to their bills")(citing
Mullane, 339 U.S. at 314).
In this case, the Town notified Mard by letter that "an
appointment for an Independent Medical Examination" had been
arranged for her at the request of the Town. The letter directed
Mard to bring to the appointment "any X-rays, CT scans, MRI
studies, [and] other records pertaining to [her] injury." In
determining whether this letter was reasonably calculated to
apprise Mard of the pendency of the examination and possible
termination, we must take into account the particular circumstances
and conditions under which the letter was sent. See Sarit v.
United States Drug Enforcement Admin., 987 F.2d 10, 14 (1st Cir.
1993)(noting that "Mullane clearly contemplates inquiry into the
peculiarities and practicalities of a given case" at the time the
notice was sent) (internal quotation marks omitted).
Both the state statute and the collective bargaining agreement
indicate that the purpose of a required independent medical
examination by a Town-designated physician is to evaluate an
injured firefighter or police officer's continued eligibility for
§ 111F benefits. Under the statute, injured on duty status shall
not extend beyond "any period after a physician designated by the
board or officer authorized to appoint police officers or fire
fighters in such [town] determines that such incapacity no longer
exists." Mass. Gen. Laws ch. 41, § 111F. Additionally, the
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collective bargaining agreement, a copy of which was issued to Mard
when she began to work as a firefighter for the Town, provided that
"on his own initiative, the Fire Chief may arrange for a medical
evaluation of the length and extent of the disability, including an
opinion as to the ability of the employee to perform limited duty."
Collective Bargaining Agreement, § 21.11. It also authorized the
Fire Chief to "require the timely presentation of such medical
evidence or other evidence reasonably satisfactory to him in
connection with a claim for sick or injury leave" should he
"reasonably suspect[] that the employee making such claim was not
legitimately incapacitated from performing his duties as an
employee." Id. § 21.5. Mard therefore could have turned to the
statute or to the collective bargaining agreement if she was
unclear about the reason for the Town's request to attend an
Independent Medical Examination. See Sachs v. Detroit, 2003 W.L.
21817875, *9 (E.D. Mich. 2003)(due process does not require that
notice of demolition hearing specify what makes the property
"dangerous" within the meaning of city ordinance where the property
owner "could have ascertained the basis for the dangerous building
hearings by reading Ordinance 290-H, reading the inspectors report
filed in the docket of dangerous buildings, or by calling the
building inspector or his supervisor").
In addition, the Town's letter was reasonably calculated to
notify Mard of the nature and purpose of the independent medical
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examination in light of the fact that she had submitted previously
to an examination of that type. In June 2001, the Town issued its
first request that Mard attend an independent medical evaluation of
the injuries she sustained on September 2, 2000. As the examining
physician, Dr. Cowell, noted in her report to the Town, "the
examining process was explained to the examinee during that
examination, and she under[stood] that there [was] no
patient/treating physician relationship and the report will be sent
to the requesting client." Immediately after Dr. Cowell completed
her examination and concluded that Mard could "perform a light duty
job with essentially no lifting," Mard notified the Town that she
had been placed on migraine medication that prevented her from
driving and therefore from returning to work. Based on this new
information, the Town approved the continuation of Mard's injury
leave.
In light of the state statute, the collective bargaining
agreement, and her experience with a previous independent medical
examination, the Town's letter of August 29, 2001 was reasonably
calculated to apprise Mard of the pendency of both the examination
and the potential termination of her benefits. The letter
instructed her to attend a second independent medical examination
arranged at the Town's request and to bring with her any medical
records pertaining to her injury. It also included the heading,
"Concentra Medical Examinations," the name of the occupational
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health services provider that arranged Mard's first independent
medical examination with Dr. Cowell. Further, the letter warned
that "pursuant to Section 45 of the Workers Compensation Act,
failure to attend or obstruction of this examination may suspend
[Mard's] right to compensation." As a firefighter, Mard received
injury leave benefits in accordance with Mass. Gen. Laws ch. 41, §
111F, rather than under the general Workers Compensation Act.2
Mass. Gen. Laws ch. 152, § 45. However, section 45 of the latter
statute similarly provides for independent medical examinations of
injured employees, the results of which may be used in subsequent
decisions concerning the employee's eligibility for compensation.
By referring Mard to a provision of the Workers' Compensation Act
that is analogous to Mass. Gen. Laws ch. 41, § 111F, the letter
provided clear indicia of the nature and purpose of the
independent medical examination.3
2
Section 111F is unlike "'pure' workmen's compensation law" in
that a recipient "is not entitled to benefits merely because he was
injured in the course of employment: the officer must be injured
through no fault of his own." Wincek v. West Springfield, 399 Mass.
700, 704 n.3 (1987).
3
Section 45 of the Massachusetts Compensation Act provides
that an injured employee on workers' compensation shall
from time to time thereafter during the continuance of
his disability . . . if requested by the insurer or
insured, submit to an examination by a registered
physician. . . . If a physician provided by the employee
is not present at the examination, it shall be the duty
of the insurer to file with the division a copy of the
report of its examining physician or physicians if and
when such report is to be used on the basis of any order
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B. Hearing
Mard next argues that the district court erred in ruling that
the independent medical examination provided by the Town prior to
terminating her § 111F benefits was an adequate hearing under the
due process clause of the Fourteenth Amendment. Mard claims,
first, that a medical examination may not as a matter of law
constitute an adequate pre-termination check against the erroneous
deprivation of injury leave benefits, even when combined with more
comprehensive post-termination procedures. Second, she argues that
even if an independent medical examination can provide a
constitutionally adequate pre-termination opportunity to be heard,
the examination as conducted by Dr. Donahue did not provide
sufficient due process. We disagree on both grounds.
1. The Pre-Termination Opportunity to be Heard
The Due Process Clause requires "an opportunity to be heard
. . . at a meaningful time and in a meaningful manner." Armstrong
v. Manzo, 380 U.S. 545, 552 (1965). In general, the state must
provide "some kind of hearing" before depriving an individual of a
protected property interest. Zinermon v. Burch, 494 U.S. 113, 127
(1990). This hearing need not be elaborate. Rather, where more
by the division.
Mass. Gen. Laws ch. 152, § 45. The section further provides that
"if the employee refuses to submit to the examination or in any way
obstructs it, his right to compensation shall be suspended, and his
compensation during the period of suspension may be forfeited." Id.
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comprehensive post-termination procedures are available, the pre-
termination hearing need only provide "an initial check against
mistaken decisions." Loudermill, 470 U.S. at 546. We find that an
independent medical examination may serve as such an "initial
check" and, coupled with adequate post-deprivation procedures,
provide a meaningful opportunity to be heard.
Mard argues that recognizing a medical examination as a
constitutionally adequate pre-termination check against erroneous
decision making would "run counter to the rationale that forms the
basis of the hearing requirement," a rationale that "emphasizes the
need to alert the ultimate decisionmaker to disputes of fact and
provide a hedge against erroneous decisions." We are not persuaded
by this argument. Where a decision to terminate benefits turns on
an evaluation of medical evidence, an examining physician is well
qualified to resolve factual disputes about the injured
firefighter's continued incapacity and to evaluate "the
appropriateness or necessity" of terminating his or her injured on
duty status. See Basciano v. Herkimer, 605 F.2d 605, 610 (2d Cir.
1978) (medical examination and review by City Medical Board
provided adequate due process prior to determining eligibility for
accident disability retirement benefits); Danese v. Knox, 827 F.
Supp. 185, 195 (S.D.N.Y. 1993) (medical examination conducted by
Port Authority doctors provided an adequate "initial check" against
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erroneous determination that police officer was ineligible for line
of duty sick leave).
Town-designated physicians serve as independent evaluators who
base their opinions on the medical evidence before them, including
evidence provided by the employee. See Basciano, 605 F.2d at 610
(when evaluating eligibility for disability retirement benefits,
the responsibility of city-appointed physicians "was to make a
medical judgment, not to function as adversaries or advocates");
American Board of Independent Medical Examiners, Guidelines of
Ethical Conduct ("Physicians shall . . . [r]each conclusions that
are based on facts and sound medical knowledge" and shall "[n]ever
accept a fee for services which are dependent upon writing a report
favorable to the referral service."), available at
http://www.abime.org/abime/content/cime/m_guidelines.asp?site=4.
As the Second Circuit has explained, where a decision turns on the
evaluation of medical evidence, a pre-termination hearing before
the ultimate administrative decision maker "presumably would
require the resolution of conflicting medical opinions by lay
administrators" and would be unlikely to result in a more reliable
decision. Basciano, 605 F.2d at 611. See also Mathews, 424 U.S.
at 343-44 (because the decision to revoke Social Security
disability benefits "will turn, in most cases, upon routine,
standard, unbiased medical reports by physician specialists
concerning a subject whom they have personally examined," the added
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value of a pre-termination hearing before the administrative
decision maker is less than in the usual case of welfare
entitlement)(internal citation and quotations marks omitted). By
affording the injured firefighter an opportunity to present her
medical records and discuss her injury with the examining
physician, an independent medical examination serves as a
constitutionally adequate initial check against an erroneous
determination that a firefighter is physically capable of returning
to active duty. See Loudermill, 470 U.S. at 542-43.
The adequacy of this kind of limited, pre-termination hearing
rests in part upon the availability of more rigorous post-
deprivation procedures. As the Supreme Court explained in
Loudermill, "the existence of post-termination procedures is
relevant to the necessary scope of pretermination procedures." Id.
at 547 n.12 (holding that a limited pre-termination hearing was
sufficient where it was followed by a more comprehensive post-
termination hearing). Mard does not challenge the grievance
procedures available to her under the collective bargaining
agreement, and we have not been presented with any evidence
suggesting that these procedures were insufficient for due process
purposes. Thus, the Town did not violate Mard's due process rights
by providing an independent medical examination rather than a more
formal administrative hearing prior to its decision to terminate
her benefits.
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2. The Parratt-Hudson Doctrine
Mard also claims that the independent medical examination
provided by the Town, as conducted by Dr. Donahue, did not afford
her constitutionally adequate due process. Viewing the facts in
the light most favorable to Mard, as the nonmoving party, we
assume that Dr. Donahue conducted an eleven minute examination,
refused to review the medical records that Mard brought to the
appointment, and instructed her to refrain from volunteering any
unsolicited information. We also accept for the purpose of
summary judgment that Mard was not afforded an opportunity to tell
Dr. Donahue about her migraines or the effect of her medications.
These are troubling allegations, suggesting that Mard's
presentation of her disability evidence may have been truncated at
the pre-termination phase. However, these concerns do not give
rise to a finding of unconstitutionality on the facts of this
case. As we explain below, because the government neither
contemplated nor authorized Dr. Donahue's alleged conduct, the
Town's post-termination hearing procedures afforded to Mard all of
the process due. See Parratt v. Taylor, 451 U.S. 527 (1981);
Hudson v. Palmer, 468 U.S. 517 (1984).
Under the so-called Parratt/Hudson doctrine, due process is
not violated where the deprivation is caused by the random and
unauthorized conduct of state officials and where the state
provides adequate post-termination procedures. See O'Neill, 210
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F.3d at 50. In such situations, additional pre-deprivation
safeguards would have little value in preventing an erroneous
deprivation of the protected interest. Zinermon, 494 U.S. at 129.
Thus, no matter how high the risk of erroneous deprivation posed
by the challenged conduct, "the State cannot be required
constitutionally to do the impossible by providing predeprivation
process." Id. In other words, Parratt/Hudson provides that
"[w]hen a deprivation of a property interest is occasioned by
random and unauthorized conduct by state officials, . . . the due
process inquiry is limited to the issue of the adequacy of
postdeprivation remedies provided by the state." O'Neill, 210 F.3d
at 50 (quoting Lowe v. Scott, 959 F.2d 323, 340 (1st Cir. 1992)).
On the other hand, under the Supreme Court's decision in Zinermon,
conduct is not considered unauthorized where the government has
delegated broad authority to "effect the very deprivation
complained of [by the plaintiff]." 494 US. at 136-39. Courts
therefore must "scrutinize carefully the assertion by state
officials that their conduct is 'random and unauthorized.'" Lowe,
959 F.2d at 341.4
We agree with the conclusion of the district court that Dr.
Donahue's alleged failure to accept or consider Mard's medical
4
We have rejected the view that Zinermon v. Burch undermined
the Parratt-Hudson doctrine. Herwins v. City of Revere, 163 F.3d
15, 19 (1st Cir. 1998)(describing Zinermon as a case in which state
law authorized the procedure that was followed, so the act of the
state officials could not be "random and unauthorized").
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information was random and unauthorized by the Town. Mard does
not claim that § 111F delegated to Town-designated physicians
broad authority to perform unprofessional or inadequate medical
examinations. Nor does she suggest that Dr. Donahue's alleged
conduct constituted a form of regular practice among physicians
who perform § 111F independent medical examinations at the Town's
request. In fact, Mard acknowledges that the "statutory authority
[delegated to the examining medical official] necessarily carries
with it the concomitant duty to initiate procedural safeguards to
protect against the unconstitutional deprivation of section 111F
benefits." As Mard herself suggests, § 111F contemplates that
examining physicians will provide injured firefighters with an
opportunity to present medical evidence and discuss their
condition during the examination in order to guard against an
erroneous determination that they are capable of returning to
work.
Insofar as Dr. Donahue failed to "initiate procedural
safeguards to protect against the unconstitutional deprivation of
section 111F benefits," his conduct was in breach of the duty that
ran "concomitant" to his statutory authority. This alleged,
unprofessional conduct, which was not authorized by the statute
and did not form a regular pattern among § 111F physicians, did
not violate Mard's due process rights so long as the Town provided
an adequate post-deprivation remedy. O'Neill, 210 F.2d at 48-50.
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As we have noted, Mard does not challenge the adequacy of the
post-termination procedures provided under the collective
bargaining agreement. Consequently, with respect to Mard's claims
concerning the adequacy of her pre-termination hearing, we find
that the post-termination grievance procedures provided Mard all
the process that was due.5
III.
For the foregoing reasons, the district court's entry of
summary judgment in favor of the defendants is affirmed.
So ordered.
5
Because we affirm the district court's grant of summary
judgment in favor of the defendants on other grounds, we need not
decide whether the grievance settlement entered into by the parties
constituted a waiver of Mard's due process claims.
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