Opposition Brief — City of Lynn v. Thompson

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No. 01-0834

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In The

Supreme Court of the United States

CITY OF LYNN,

Petitioner,

TERRANCE THOMPSON,

Respondent.

On Petition For Writ Of Certiorari

To The Massachusetts Supreme Judicial Court

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RESPONDENT’S BRIEF IN OPPOSITION

MICHAEL J. AKERSON, ESQUIRE

Counsel of Record

AustTIN M. Joyce, Esquire

EpwarpD P. REARDON, P.C.

397 Grove Street

Worcester, MA 01605

(508) 754-7285

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Whether the Massachusetts Supreme Judicial Court

correctly affirmed an arbitrator’s award that reinstated

Terrance Thompson as a City of Lynn Police Officer,

holding that the award does not violate public policy,

state or federal.

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PARTIES TO THE PROCEEDING

Petitioner is the City of Lynn (hereinafter “City”).

Respondent is Terrance Thompson (hereinafter

“Thompson”). None of the parties hereto are corpora-

tions.

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

PARTIES TO THE PROCEEDINGS .............-..+- ii

pr F Be Bee os) ee eee eee iii

TABLE OF AUTHORITIES ...........22seeceeeeeees iv

OPPOSITION TO PETITION FOR WRIT OF CER-

| EEN errr rrr rrr ETP E TLE Ee

STATEMENT OF THE CASE.............-seceeeeees

EE cece GGhevadesseseveceatecceccerneresses

I. THE MASSACHUSETTS SUPREME JUDICIAL

COURT CORRECTLY HELD THAT THE ARBI-

TRATOR’S AWARD REINSTATING TERRANCE

THOMPSON DOES NOT VIOLATE PUBLIC POL-

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A. The Facts Found by the Arbitrator Are

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B. No Public Policy Has Been Violated That

Would Preclude the Arbitration Award’s

Reinstatement of Thompson..............++-

C. Eastern Associated Coal Corporation Supports

the Premise That Thompson’s Arbitration

Award Does Not Violate Public Policy......

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iv

TABLE OF AUTHORITIES

Page

Cases

Amalgamated Meat Cutter & Butcher Union v. Great

W. Food Co., 712 F.2d 122 (5th Cir. 1983)........... 4

City of Canton v. Harris, 489 U.S. 378 (1989)..... a: 3% 6

City of Lynn v. Thompson, 435 Mass. 54 vO | 2

Commonwealth v. Garner, 423 Mass. 735 (1996) ........ 3

Dean v. City of Worcester, 924 F.2d 364 (ist Cir.

FORE és ccccevdadcesceesenascanncertscumeeridaereds 3

Delta Air Lines, Inc. v. Air Pilots Ass'n Int'l, 861

F.2d 665 (11th Cir. 1988), cert. denied, 493 U.S.

re ee ee or er ee ree 4

Eastern Associated Coal Corporation v. United Mine

Workers of America, District 17, 531 U.S. 57

GO ook cens etbaciescbebticsevesdescndes a0 2, 4, 5, 6

Exxon Shipping Co. v. Exxon Seamen’s Union, 993

Pan Gee Mes Gh Bs oo Kin 6 Brak ckscsedcuc meses’ 4

Graham v. Connor, 490 U.S. 386 (1988)................ 3

Gulf Coast Indus. Workers Union v. Exxon Oil Co.,

991 F.2d 244 (5th Cir.), cert. denied, 114 S.Ct. 441

(0 Pe re errr thee prt sore. ep rere 4

Iowa Elec. Light & Power v. Local Union 204 of the

Int’l Bhd. Of Elec. Workers, 834 F.2d 1424 (8th Cir.

SOR Dive eccuanaas decease 4snenks ite feeder en +

Monell v. Department of Social Services, 436 U.S. 658

CIR EE bv ca ctxoenieedek ee pecnctadcerenveetaasinkeiin 3

Monroe v. Pape, 365 US. 167 (1969).......cccceses. 2, 6

TABLE OF AUTHORITIES —- Continued

Page

clea len ean ss 2, 3,5, 6

OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

Thompson respectfully submits that the decision of

the Massachusetts Supreme Judicial Court correctly

applied the governing law in the Commonwealth of Mas-

sachusetts and that the instant Petition for Writ of Cer-

tiorari presents no valid grounds for review and thus

should be denied.

STATEMENT OF THE CASE

The controlling facts are set forth in detail in the

Arbitration Award. (Appendix “Pet. App.” 40-80).

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ARGUMENT

I. THE MASSACHUSETTS SUPREME JUDICIAL

COURT CORRECTLY HELD THAT THE ARBITRA-

TOR’S AWARD REINSTATING TERRANCE

THOMPSON DOES NOT VIOLATE PUBLIC POLICY.

A. The Facts Found by the Arbitrator Are Final.

Despite the persistent yet erroneous yearnings of the

City in its Petition and throughout its post arbitration

filings that Thompson was responsible for breaking Eliz-

abeth Raymer’s (hereinafter “Ms. Raymer”) arm, it can-

not ignore the arbitrator’s contrary ruling. After many

arbitration hearing days, the arbitrator found that

Thompson did not use excessive force in his contact with

Ms. Raymer and that he was thus not responsible for

breaking her arm. Pet. App. 78. It matters not how many

times the City’s Petition states and restates that

Thompson broke Ms. Raymer’s arm while restraining her

because the singular salient fact to this proceeding is that

the mutually selected arbitrator cleared Thompson of

using excessive force. Pet. App. 78. Facts found by arbi-

trators are final and any errors that may have been made |

by the arbitrator-are-not subject to review. Eastern Associ-

ated Coal Corporation v. United Mine Workers of America,

District 17, 531 U.S. 57, 62 (2000). Though the Massa-

chusetts Supreme Judicial Court opined that some of the

Thompson arbitrator’s findings were unsound, it held

that the court must accept the findings, even if believed

that they are “grossly erroneous.” City of Lynn uv.

Thompson, 435 Mass. 54, 61-62 (2001). Federal law is no

different.

B. No Public Policy Has Been Violated That

Would Preclude the Arbitration Award’s Rein-

statement of Thompson.

The City contends that 42 U.S.C. § 1983 is a public

policy that would preclude the enforcement of the arbi-

tration award reinstating Thompson to the position of

police officer for the City of Lynn. This statute, 42 U.S.C.

§ 1983, is remedial in nature as it provides a mechanism

of redress for collecting damages in civil actions and

provides no substantive rights. City of Canton v. Harris,

489 U.S. 378, 395 (1989); Monroe v. Pape, 365 U.S. 167,

170-175 (1969). Despite this, the City asserts that it may

not be able to defend itself against liability in future civil

rights cases naming Thompson as a defendant because of

an adverse jury verdict in the early 1990s against

Thompson for excessive force, and because it decided to

Te |

settle the lawsuit brought by Ms. Raymer.! The City also

argues that it would be absolutely liable in future civil

rights actions. Therefore, it postulates, public policy

requires that Thompson cannot be reinstated as a police

officer.

The City misunderstands the municipal liability stan-

dard required in civil rights cases. The principle of respon-

deat superior does not apply to local governmental entities

for purposes of § 1983 liability. City of Canton, supra at

385; Monell v. Department of Social Services, 436 U.S. 658,

694-695 (1978). Municipal liability would lie only for a

municipality’s unconstitutional policies, practices, and

customs that cause the plaintiff’s constitutional depriva-

tion. Id. Despite the City’s arguments about speculative

potential future civil liability, it offers this Court no

authority from any court of this land, any statute, or any

regulation to support its contention that this “public pol-

icy” must void the arbitration award that reinstated

Thompson.” If the City’s arguments prevail, then

1 Given that police officers are charged with enforcing

laws, sometimes they must use force to affect such and some

harm may result to individuals when a police officer justifiably

uses force. See Graham v. Connor, 490 U.S. 386, 390 (1988) (use of

force by police that results in citizen sustaining broken foot, cuts

and injured shoulder may not be constitutionally excessive);

Dean v. City of Worcester, 924 F.2d 364, 369 (1st Cir. 1991) (police

use of force resulting in cut nose, scratches and welts was

reasonable); Commonwealth v. Garner, 423 Mass. 735, 744-745

(1996) (use of stun grenade during execution of search warrant

was reasonable even though little girl allegedly injured.).

2 The absence of the City’s authority to support its

proposition speaks to the rarity of the application of the public

policy exception. The type of cases which have implicated the

disciplinary decisions regarding public employees would

be made by juries who reach verdicts and politicians who

authorize settlements of suits. This cannot be the basis of

a public policy.

C. Eastern Associated Coal Corporation Supports

the Premise That Thompson’s Arbitration

Award Does Not Violate Public Policy.

The City suggests that Eastern Associated Coal Corpo-

ration v. United Mine Workers of America, District 17, 531

U.S. 57 (2000) is distinguishable from the case at bar and

thus should not to be considered by this Court. This

suggestion reflects an entire misreading of the case as

Eastern Associated Coal strongly supports Thompson’s

position that his reinstatement award does not violate

public policy.

Eastern Associated Coal held that an arbitrator’s rein-

statement of an employee (a truck driver) who failed two

public policy exception stem from potential incidents of mass

destruction to the general public. See Exxon Shipping Co. v. Exxon

Seamen's Union, 993 F.2d 357 (3rd Cir. 1993) (positive drug

testing helmsman runs oil tanker aground); Gulf Coast Indus.

Workers Union v. Exxon Oil Co., 991 F.2d 244, 252 (5th Cir.), cert.

denied, 114 S.Ct. 441 (1993) (positive drug testing petro-chemical

technician); Delta Air Lines, Inc. v. Air Pilots Ass’n Int'l, 861 F.2d

665 (11th Cir. 1988), cert. denied, 493 U.S. 871 (1989) (intoxicated

air line pilot); Iowa Elec. Light & Power v. Local Union 204 of the

Int'l Bhd. Of Elec. Workers, 834 F.2d 1424 (8th Cir. 1987) (safety

violating nuclear plant worked); Amalgamated Meat Cutter &

Butcher Union v. Great W. Food Co., 712 F.2d 122 (5th Cir. 1983)

(drunk tractor trailer driver). In all of these cases, however, the

arbitrator found the employee committed the conduct charged,

unlike the arbitrator here.

——

drug tests did not violate public policy. The Court rea-

soned that due to a regulatory scheme in place concern-

ing truck drivers, termination was not required and that

rehabilitation was encouraged. The employee’s suspen-

sion was within the arbitrator’s authority and consistent

with the parameters of the regulatory scheme. Eastern

Associated Coal recognized that people can differ as to

whether reinstatement or discharge is the more appropri-

ate remedy, but both parties agreed to entrust the reme-

dial decision to an arbitrator.

The case is similar to this in that both arbitrators

reinstated employees, but imposed a period of suspen-

sion. In Thompson, the arbitrator suspended him for two

weeks for his insensitive treatment of a mentally ill

woman. Pet. App. 79-80. The Thompson facts are more

compelling than those in Eastern Associated Coal in show-

ing that public policy should not void the award imple-

mentation. The key difference between the Eastern

Associated Coal truck driver and Thompson is that

Thompson did not commit the gravamen of the charges

brought against him. The arbitrator found that Thompson

did not use excessive force in restraining Ms. Raymer

whereas the other arbitrator found that the truck driver

twice committed a criminal act by failing drug tests.

Though the City dislikes the arbitration result, it received

what it agreed to and bargained for with the police union:

a hearing process with an independent arbitrator

entrusted with this remedial decision. Eastern Associated

Coal, supra at 67.

Assuming arguendo that § 1983 is an applicable

source of public policy, then similarly to the regulatory

scheme applicable to the truck driver in Eastern Associated

Coal this federal statute does not require that its violators

be terminated. In fact, § 1983 is silent as to the employ-

ment implications of its violators. This is so because by its

terms § 1983 provides no rights but only an avenue of

civil redress. City of Canton, supra at 395; Monroe, supra at

170-175. Had Congress in 1871, or at any time subsequent

thereto, desired to mandate termination of violators of

§ 1983, then the legislature would have voted to amend

the Act in the past 130 years. Employment disputes in the

public sector are commonly reso'ved by arbitration which

provides for an informal, yet inexpensive means of final

resolution of disputes stemming from collective bargain-

ing agreements. That is exactly the case at hand. The

arbitrator heard evidence presented by counsel for both

parties and entered an award that was within the scope of

the agreed to arbitration issues. Pet. App. 40-41. Like

Eastern Associated Coal, no public policy is implicated or .

violated to prevent the arbitrator’s reinstatement of

Thompson.

CONCLUSION

The Petition for Writ of Certiorari fails to demon-

strate any valid grounds for review of the decision below

and should be denied.

Respectfully submitted,

MIcHAEL J. AKERSON, ESQUIRE

AustTIn M. Joyce, Esquire

397 Grove Street

Worcester, MA 01605

(508) 754-7285

January 2002