Mard v. Town of Amherst

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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