Supreme Court

No. 2012

- 157

- M.P

. (PC 04

- 3025 ) (PC 04

- 3026 )

Theodore J. Fabrizio, Jr. :

v. :
City of Providence, et al

. :

Stephen J. Deninno :

v. :
City of Providence, et al. :

NOTICE : This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone 222

- 3258 of any typographical or other formal errors in order that corrections may be made before the opinion is published.- 1

- Supreme Court

No. 2012

- 157

- M.P

. (PC 04

- 3025 ) (PC 04

- 3026 )

Theodore J. Fabrizio, Jr. :

v. :
City of Providence, et al

. :

Stephen J. Deninno :

v. :
City of Providence, et al. :

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

O P I N I O N

Justice Robinson , for the Court. The petitioners , former Providence M ayor Vincent A.

Cianci , Jr. and former Chief of the Providence Fire Department James Rattigan, seek review on

certiorari of an order by the Superior Court denying without prejudice their motion for summary
judgmen t. 1 The underlying dispute arose after the respondents
, Theodore J. Fabrizio, Jr. and
Stephen J. Deninno , two Providence firefighters, objected to orders from their superiors that they
serve as part of the crew of a fire engine in the 2001 Pride Parade

. 2 Following their unwilling

1 Although both Vincent A. Cianci, Jr., and James F. Rattigan do not presently hold their former offices as Mayor and Fire Chief, for t he sake of narrative clarity we shall hereinafter refer to them simply by the titles which they held at the time of the 2001 Pride Parade that gave rise to the instant jarndycean piece of litigation

.

2 The Rhode Island Pride Commission, the Pride P arade’s sponsor, is a nonprofit organization the goal of which is “celebrating the pride and diversity of the lesbian, gay, bisexual, and transgendered community of Rhode Island and southern New England.” A bout Us
, RHODE ISLAND PRIDE , http://www.prideri.com/ (last visited December 1 9 , 2014).- 2

-

participation in the parade, the respondents sued the petiti oners, as well as the City of
Providence, on a variety of state and federal claims. Mayor Cianci and Chief Rattigan moved for
summary judgment on two of th o se claims ( viz.
, Counts Six and Seven; see infra ), invoking the

venerable doctrine of qualified immunity from suit. 3 After entertaining argument in open court,
the hearing justice opined that further development of the pertinent facts was warranted;
accordingly, he denied the motion for summary judgment , but he specifically stated that th e

denial was without prejudice

. For the reasons set forth below, we quash the judgment of the Superior Court and remand

with instructions that petitioners’ motion for summary judgment be granted

.
I

Facts and Travel 4

In 2001, Mr. Fabrizio and Mr. Deninno we re employed by the Providence Fire

Department
, Mr. Fabrizio as a firefighter and Mr. De ni n no as a captain. Both men served in
Engine Company No. 7, a company based at the North Main Street Fire Station

. On June 15,
2001, Engine Compan y No. 7 received a work assignment to drive a fire truck in the 2001 Pride

Parade the next day

. Nothing in the record indicates that assignments of this type were at all

un common

. 5 It is further uncontested in the record that Engine Company No. 7 was the engine

3 Regrettably, the papers containing petitioners’ motion for summary judgment and the accompanying memorandum of law are missing from the record before us. Nonetheless, we have been able to glean from the extant record the essence of their argument.

4 There is no material dispute with respect to the facts that we have summarized in the text.

5 Chief Rattigan testified in his deposition that fire engine companies had also received orders to participate in parades for other organizations ; and the record indicates that the Fire Department used an official “Request for a Fire Company” form for the 2001 Pride Parade.- 3

-

company ch osen to carry out the 2001 Pride Parade assignment due to its proximity to the parade

route , in accordance with the practice of Chief Rattigan

.
Mr. Fabrizio and Mr. Deninno self

- identify as members of the Roman Catholic Church,

and they contend that their beliefs as Catholics do not allow them to “ support, encourage, n or

condone homosexual behavior. ” W hen these two firefighters learned of their company’s
assignment, they objected to participating in the parade on the basis of their religious beliefs
, expressing their discomfort to the district chief. Notwithstanding the objections of Mr. Fabrizio

and Mr. Deninno
, Chief Rattigan reiterated his order that they carry out the task assigned

. ( Mr.

Fabrizio and Mr. Deninno also alleged that they were told by others associated with the Fire
Department that th e order to participate in the parade came directly from Mayor Cianci. ) The
next day, Mr. Fabrizio and Mr. Deninno reluctantly were part of the crew of Engine Company

No. 7 as it took part in the parade pursuant to the June 15, 2001 order

. Both firefighters alleged

that it was their conviction that to do otherwise w ould jeopardize their employment status with in
the Fire Department.

Mr. Fabrizio and Mr. Deninno further allege d that
, while the parade was ongoing
, they
experienced sexual harassment, including being subjected to sexual propositions and other

offensive remarks

. Mr. Fabrizio and Mr. Deninno also claim ed that the harassment did n ot end
with the work assignment ; they averred that , after their a ssignment to the parade, they suffered

additional sexual harassment at the hands of their coworkers and also received at least sixty
profanity

- laced anonymous phone calls

. Mr. Fabrizio and Mr. Deninno alleged that, d espite
participating in meetings with the C ity’ s Equal Employment Opportunity O fficer, filing formal
grievances with their union, and lodging complaints with “ upper

- level management, ” their
complaints went un resolv ed.- 4

-

In June of 2004, Mr. Fabrizio and Mr. Deninno filed nearly id entical complaints in the
Superior Court for Providence County against several defendants

–– Mayor Cianci , individually
and in his official capacity ; Chief Rattigan , individually and in his official capacity ; and the City
of Providence, by and through its tr easurer, Stephen Napolitano

. T he only counts in their
complaints that are relevant to this appeal are Count Six ( alleging deprivation of the right of
freedom of religion under the Rhode Island Constitution ) and Count Seven ( alleging deprivation
of the rig hts of freedom of speech and association under the Rhode Island Constitution )

. 6 Mr.
Fabrizio and Mr. Deninno sought several forms of relief , including de claratory and injunctive

relief as well as compensatory and punitive damages.
In January of 2012
, petitioners, Mayor Cianci and Chief Rattigan
, moved for summary
judgment on Counts Six and Seven on the basis of qualified immunity. 7 The two officials argued
that respondents had no clearly established right to “refuse to complete a legitimate work

6 A ll other counts in the complaint were di sposed of in favor of Mayor Cianci and Chief Rattigan during earlier stages of the litigation for reasons that are not presently relevant. The original nine counts were as follows: (1) Count One, alleging employment discrimination in violation of the federal Civil Rights Act; (2) Count Two, alleging unlawful discrimination in violation of the state Fair Employment Practices Act; (3) Count Three, alleging unlawful discrimination in violation of the state Civil Rights Act; (4) Count Four, alleging a deprivation of the right to freedom of religion under federal law; (5) Count Five, alleging a deprivation of the right to freedom of speech and association under federal law; (6) Count Six, alleging deprivation of the right of freedom of religion in viola tion of the Rhode Island Constitution; (7) Count Seven, alleging deprivation of the right of freedom of speech and association in violation of the Rhode Island Constitution; (8) Count Eight, alleging intentional infliction of emotional distress; and (9) Co unt Nine, alleging negligent infliction of emotional distress.

7 Through its ten long years of travel, this case has been removed to federal court, has been remanded by that court , and has survived several dispositive motions in state court

–– including a partial motion for summary judgment by respondents, a motion for summary judgment on the merits by petitioners, and a motion to dismiss by petitioners. Somewhere along the way, the parties managed to unde rtake a great deal of discovery; among those whose depositions were taken were Mr. Fabrizio, Mr. Den inno, and Chief Rattigan

.- 5

-

assig nment”

–– i.e.
, to refuse to man a fire truck in a parade because of personal moral objections
to the task. The respondents vociferously disagreed, arguing in their objection to the motion for
summary judgment (1) that qualified immunity was no bar to any i njunctive or declaratory relief

in their favor ; a nd (2) that, more importantly, in view of what they contended was the applicable

test for constitutional violations of the rights of government employee s , petitioners could not

show that they were qualifiedl y immune from suit

. After considering the arguments of the
respective parties, t he hearing justice rendered a bench decision denying the motion. While the
hearing justice noted th at this Court had alluded to the possible applica bility of the doctrine of
qualified immunity in earlier cases such as Ensey v. Culhane , 727 A.2d 687 (R.I. 1999) and

Pontbriand v. Sundlun , 699 A.2d 856 ( R.I. 1997), he did not pass upon the applicability of that

doctrine in this case; it was his view that the facts had not yet been sufficiently developed for

h im to be able to grant petitioners’ motion for summary judgment. Accordingly , the hearing
justice denied the motion

— albeit without prejudice. Mayor Cianci and Chief Rattigan
subsequently filed a petition for review on wri t of certiorari

. We granted the petition and stayed

further Superior Court proceedings pending our review of the matter.

II

Standard of Review
As a general rule, this Court will not review the denial of a motion for summary
judgment , since su ch an order constitutes an interlocutory decision ; and
, under our precedent , the

non

- prevailing party is not entitled to an appeal of right

. Nationa l Refrigeration, Inc. v. Capital
Properties, Inc.
, 88 A.3d 1150, 1154 (R.I. 2014). However
, even though a direct a ppeal is not

available, a non

- prevailing part y may petition for certiorari with respect to an otherwise
nonappealable order. See Fayle v. Traudt , 813 A.2d 58, 61 (R.I. 2003)

. O n occasion
, we ha ve- 6

-

granted a writ of certiorari following a denial of a motio n for summary judgment where no
genuine issues of material fact are in dispute, and both parties present purely legal arguments

.
See
, e.g. , Henderson v. Nationwide Ins urance Co. , 35 A.3d 902, 905 (R.I. 2012). Our review on

certiorari is confined to deter mining whether an error of law has occurred

. Woodruff v. Gitlow
, 91 A.3d 805, 809 (R.I. 2014).

We review the denial of a motion for summary judgment de novo , and we use “the same
standard of review that applies to a grant of summary judgment.” Woodruff , 91 A.3d at 809
(internal quotation marks omitted) ; see also Nat iona l Refrigeration, Inc. , 88 A.3d at 1154 ;
Employers Mutual Casualty Co. v. Arbella Protection Insurance Co. , 24 A.3d 544, 553 (R.I.

2011) . This standard requires us to view the record in t he light most favorable to the nonmoving

party ; and
, if we conclude that a genuine issue of material fact exists or that the moving party is
not entitled to judgm ent as a matter of law, we must affirm the denial of summary judgment. See

Woodruff , 91 A.3d at 810 ; see also Morales v. Town of Johnston , 895 A.2d 721, 726

- 27 (R.I.

2006)

. See generally Estate of Giuliano v. Giuliano , 949 A.2d 386 , 390

- 91 (R.I. 2008).

III
Analysis
Although petitioners argue that the doctrine of qualified immunity protects them from
liability, we have stated that “[g] overnment officials need not avail themselves of the protections
of qualified immunity when no cons titutional violation is present.” Monahan v. Girouard
, 911

A.2d 666, 673

- 74 (R.I. 2006). Accordingly, we conclude that, in view of the facts o f this
specific case , it is not necessary to invoke the doctrine of qualified immunity because no

constitutional violation occurred

.- 7

-

Here, respondents received an ord er to participate in the parade because their engine
company was assigned to the task; it is uncontested that such orders were common, as evidenced
by Chief Rattigan’s reference to receiving “numerous” requests from parade organizers for Fire

Department pa rticipation and as reflected in the standard form for such requests used by the

Department. After receiving this work assignment from their employer (the regularity of which
has not been questioned), respondents participated in the parade merely as relati vely anonymous
public servants. We are unaware of any pertinent legal authority in support of the proposition

that
, in such specific circumstances, employees’ rights are violated if they happen to possess
religious objections to the beliefs of the group with which an otherwise legitimate work
assignment requires brief interaction

. See generally Mendoza Toro v. Gil
, 110 F. Supp. 2d 28,

35 (D.P.R. 2000) (stating that the plaintiff’s beliefs “[ d id ] not relieve her of her professiona l
obligation to complete legitimate work assignments” and further stating that the plaintiff did not
“have a First Amendment right to pick and choose work assignments that s uit[ed] her moral

beliefs ”).

The respondents’ appearance in the parade , solely as m embers of the Providence Fire

Department
, did not constitute a form of expression on their part . Rather, it was simply the
accomplishing of a task assigned to an engine company of the Providence Fire Department, and
the individuals chosen to carry out th a t assignment cannot be said to have engaged in personal
speech by carrying out their work as public servants. See generally Hennessy v. City of

Melrose , 194 F.3d 237, 245 , 246 (1st Cir. 1999) (noting that plaintiffs who allege that they have

been discharge d for exercising First Amendment rights must show they have engaged in

co nstitutionally protected speech

— that is, “commenting up on matters of public concern”)
(internal quotation marks omitted)

.- 8

-

As we noted in Monahan , “the first step in evalua ting a claim to qualified immunity is to
determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all

* * *. ” Monahan
, 911 A.2d at 674 (internal quotation marks omitted). The respondents’
participation in the parad e as public servants carrying out a legitimate work assignment wa s not a
deprivation of their constitutional rights. Therefore, as in Monahan , since there was no
deprivation of a constitutional right, our analysis rightly can come to an abrupt halt since “the

need for [invocation of the doctrine of qualified immunity ] no longer exists.” Id

.
IV

Conclusion
For the reasons set forth herein, the petition for certiorari is granted, and the judgment of
the Superior Court is quashed. The papers in the case are remanded to the Superior Court with
our opinion endorsed thereon for entry of judgment on Counts Six and Seven in accordance with
this opinion.

### R HODE 

### I SLAND 

### S UPREME 

### C OURT 

### C LERK 

### ’ S 

### O FFICE



### Clerk’s Office Order/O pinion Cover Sheet

TITLE OF CASE: Theodore J. Fabrizio, Jr. v. City of Providence, et al. Stephen J. Deninno v. City of Providence, et al.

CASE NO : No. 20 1 2

- 1 57

- M.P. (PC 04

- 3025) ( PC 04

- 3026 )

COURT: Supreme Court

DATE OPINION FILED: December 19 , 2014

JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia
, JJ.

WRITTEN BY: Associate Justice William P. Ro binson III

SOURCE OF APPEAL: Providence County Superior Court

JUDGE FROM LOWER COURT :

Associate Justice Brian Van Couyghen

ATTORNEYS ON APPEAL :

For P etitio ners : Kevin F. McHugh , Esq.

For Respondents : Gina A. DiCenso , Esq.