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Sauro v. Lombardi

Superior Court of Rhode Island

December 2, 2014

JOHN SAURO; KAREN SAURO, Plaintiffs,
v.
JAMES LOMBARDI, in his capacity as Treasurer of the CITY OF PROVIDENCE; RETIREMENT BOARD OF THE EMPLOYEES RETIREMENT SYSTEM OF THE CITY OF PROVIDENCE, Defendants.

Providence County Superior Court.

For Plaintiff: Joseph J. Voccola, Esq. Thomas F. Connors, Esq.

For Defendant: Kenneth B. Chiavarini, Esq.

DECISION

CARNES, J.

The matter before the Court involves a pension dispute between John Sauro[1](Plaintiff or Mr. Sauro) and the City of Providence (the City), sued through its treasurer, James Lombardi, as well as the Retirement Board of the Employees Retirement System of the City of Providence (the Board) (collectively, Defendants). Plaintiff has filed a twelve count First Amended Complaint alleging primarily constitutional violations by Defendants in regard to the suspension of his pension. In addition to compensatory damages, permanent injunctive relief, declaratory relief, and attorney's fees, Plaintiff additionally moves this Court for a preliminary injunction requiring the City to restore Plaintiff's pension while this litigation is pending. This Court held a hearing on the preliminary injunction over the course of some five days[2] on October 1, 2, 3, 6, and 7, 2014. During the hearing, the Court heard from nine witnesses[3] and received seventy-eight exhibits. Jurisdiction is pursuant to G.L. 1956 § 8-2-13 (exclusive jurisdiction of equity actions) and Super. R. Civ. P. 65(a) (preliminary injunction). For the reasons set forth below, this Court denies Plaintiff's Motion for a Preliminary Injunction.

I Background

A Background Facts of the Case[4]

On August 5, 1991, Plaintiff was hired as a firefighter with the Providence Fire Department. (First Am. Compl. ¶ 8.) In August of 1998, Mr. Sauro and another unnamed firefighter were carrying a large man down three flights of stairs in a stair chair[5] because the man was having breathing problems. (Tr. at 7-8, Vol. I, Oct. 1, 2014.) At some point, the other firefighter dropped the chair, and the full weight of the chair and its occupant came down on Plaintiff, resulting in an injury to Plaintiff's right shoulder. Id. at 8-9. Mr. Sauro suffered an "acromioclavicular joint separation and focal through and through full thickness rotator cuff tear" in his right shoulder. (First Am. Compl. ¶ 18.)

Mr. Sauro began receiving treatment for his shoulder from an orthopedic specialist, Dr. David Moss. (Tr. at 10, Vol. I, Oct. 1, 2014.) Mr. Sauro's primary care physician, Dr. Tony Wu, and Dr. Moss both prescribed a physical therapy routine for Mr. Sauro because he was not a good candidate for corrective surgery. Id. at 10-12. At some later point in time, Dr. Wu indicated to Mr. Sauro that he had reached maximum medical improvement from the physical therapy, but Mr. Sauro would be unable to return to work as a firefighter. Id. at 13-14.

On January 8, 1999, Plaintiff applied for accidental disability retirement[6] with the City. (Defs.' Mem. at 1.) As part of the application process, Mr. Sauro had to undergo three independent medical evaluations (IMEs) with doctors selected by the City. (Tr. at 85-86, Vol. I, Oct. 1, 2014.) All three of the IME doctors, as well as Plaintiff's own doctor, concluded that Plaintiff was permanently disabled as a firefighter. Id. at 17. The Board granted Mr. Sauro accidental disability retirement in October of 2000. Id. at 2.

Under the City of Providence pension ordinance, each year, a disability pensioner is required to submit a recertification of disability from his or her own doctor. Providence City Code § 17-189(8)(a) (2013).[7] Additionally, the City may send a disability pensioner for an IME with a physician of the City's choosing once per year. Id. The option to send a pensioner for an IME has long been part of the pension system, but the recertification process was added to the ordinance in 2007 after a pension study commission indicated a need to reevaluate disability pensioners regularly. Providence City Council Resolution 2007-49 § 5 (November 8, 2007); see Tr. at 438, Vol. III, Oct. 6, 2014. Mr. Sauro complied with the annual recertification when he began receiving notifications from the City. (Tr. at 442, Vol. III, Oct. 6, 2014.)

Eventually, Mr. Sauro's physical therapy progressed to weight training, first at the therapy office and then later, on Plaintiff's own, in a public gym. (Tr. at 11-12, Vol. I, Oct. 1, 2014.) News reporter Tim White surreptitiously filmed Mr. Sauro during his gym workouts and in April 2011 aired a story on Channel 12 Eyewitness News questioning how Mr. Sauro could be lifting weights and receiving a disability pension. (Exs. 5, 13, 14, 22, 57) The initial story led to a flood of media attention and a City investigation of Mr. Sauro for potential fraud on the pension system. (First Am. Compl. ¶ 25; Ex. 7.) Several officials of the City and the Board[8]made statements to the media either as part of the initial story or follow-up pieces regarding their reaction to the video of Mr. Sauro, generally indicating surprise and a desire to investigate. (Exs. 5, 14, 15.)

Based on the concern that Plaintiff's injury may have healed, the City directed Plaintiff to appear for an IME with Dr. Anthony DeLuise, Jr. on June 7, 2011. (Exs. 6, 7, 8.) Dr. DeLuise's report, which was submitted to the Board, indicated that Mr. Sauro is disabled as a firefighter, but the report also recommended additional testing because Dr. DeLuise did not have access to certain testing equipment and is not qualified to give a psychological evaluation. (Ex. 12.) On July 27, 2011, the Board met to review Dr. DeLuise's report and ordered Mr. Sauro to submit to a functional capacity evaluation based on Dr. DeLuise's recommendations. (Ex. 17.) However, the City also announced publicly that there would be no criminal charges brought against Mr. Sauro in regard to his activities as depicted in news accounts. (Ex. 13.)

Mr. Sauro's attorney filed objections to the Board's order for the additional testing, arguing, inter alia, that the additional testing constituted a second IME, which the Board was not authorized to order under Providence City Code § 17-189(8). (Ex. 21.) Initially, the Board maintained its order for Mr. Sauro to undergo the functional capacity evaluation and ordered Mr. Sauro to obtain a prescription from his doctor for the evaluation. (Ex. 23.) Mr. Sauro went to Dr. Moss, who refused to write the prescription for the functional capacity evaluation because he examined Mr. Sauro and concluded that Mr. Sauro remained disabled and the functional capacity evaluation would serve no purpose. (Exs. 25, 26.)[9] In May of 2012, the Board voted to remove Mr. Sauro from its agenda, and no further tests were ordered. (Tr. at 301-04, Vol. II, Oct. 3, 2014.)

In July of 2013, Mr. Sauro was noticed by the City to attend another IME, this time with Dr. Brian McKeon in Waltham, MA. (Ex. 33.) Plaintiff's attorney objected because the pension ordinance, at that time, required that IMEs "be made at the place of residence of the pensioner or other place mutually agreed upon . . . [, ]" and Mr. Sauro did not reside in Massachusetts. (Ex. 34.) In response to this objection, the City cancelled the IME. (Defs.' Mem. at 3.)

On July 31, 2013, the Providence City Council voted to amend the pension ordinance to remove the location restriction for IMEs, among other changes. Providence City Council Resolution 2013-35 § 1 (July 31, 2013). As a result, the pension ordinance was amended to its present form. (Defs.' Ex. A.) In August 2013, Plaintiff was again noticed for an IME with Dr. McKeon to be held on September 13, 2013. (Tr. at 582-83, Vol. IV, Oct. 7, 2014.) Mr. Sauro stated that he consulted with his psychologist, psychiatrist, and colorectal doctor regarding whether to attend the IME, and they ordered him not to attend as it could be life-threatening to him. (Tr. at 61, Vol. I, Oct. 1, 2014.)

On September 10, 2013, Ms. Sauro emailed Ms. Bailey requesting that the IME be cancelled because it was physically and financially impossible for Mr. Sauro to attend as he was bedridden and had been ordered not to travel out of state. (Pl.'s Ex. B.) According to Ms. Bailey, she and Ms. Sauro spoke on the phone on September 12, 2013, and Ms. Bailey indicated to Ms. Sauro that she would reschedule the appointment but would need a note from Mr. Sauro's doctor to validate Ms. Sauro's claims. (Tr. at 390-93, Vol. II, Oct. 3, 2014.) Ms. Sauro testified that she called Dr. Denby—Mr. Sauro's psychiatrist—to request a note. (Tr. at 596-97, Vol. IV, Oct. 7, 2014.) She testified that Dr. Denby stated that he wanted to see Mr. Sauro in person, so she and Mr. Sauro went to Dr. Denby's office. (Tr. at 597-98, Vol. IV, Oct. 7, 2014.) After the appointment with Dr. Denby, Mr. and Ms. Sauro continued to Office Max (to fax Dr. Denby's note to Ms. Bailey), CVS, a gas station, Stop and Shop, and Mr. Sauro's attorney's office. (Tr. at 66-67, Vol. I, Oct. 1, 2014.)

Unbeknownst to Mr. Sauro, the City had hired a private investigator to follow Mr. Sauro starting on September 11, 2013, and continuing for a few days. (Tr. at 516, Vol. III, Oct. 6, 2014.) Brandon Lowe, the private investigator, videotaped Mr. Sauro's activities on September 12, 2013, noting that Mr. Sauro operated the Sauros' vehicle for part of the day. (Ex. 58, at 3-5.) Mr. Lowe also recorded Mr. and Ms. Sauro departing their home again on September 13, 2013, this time stopping at Mr. Sauro's attorney's office. (Ex. 58, at 6.)

The City rescheduled Mr. Sauro's IME with Dr. McKeon for October 16, 2013. (Ex. 41.) On October 15, 2013, Plaintiff's attorney sent an objection to the City, and Plaintiff did not attend the October 16, 2013, IME. (Ex. 43.) In response to Mr. Sauro's failure to attend, the Board again took up the matter of his pension. (Exs. 46, 47.) On December 18, 2013, the Board voted to suspend Mr. Sauro's pension for refusal to attend the IME on October 16, 2013. (Ex. 47.) The instant claim followed with Plaintiff setting forth numerous allegations against Defendants. The Plaintiff now moves for a preliminary injunction to enjoin the City from denying Plaintiff his pension payments.

B Standard of Review

The decision of whether to grant a preliminary injunction "rests within the sound discretion of the hearing justice." Iggy's Doughboys, Inc. v. Giroux, 729 A.2d 701, 705 (R.I. 1999). In making the determination on a preliminary injunction,

"the hearing justice should determine whether the moving party (1) has a reasonable likelihood of success on the merits, (2) will suffer irreparable harm without the requested injunctive relief, (3) has the balance of the equities, including the possible hardships to each party and to the public interest, tip in its favor, and (4) has shown that the issuance of a preliminary injunction will preserve the status quo." Id.

The moving party need not establish the certainty of success on the merits, but he or she does need to make out a prima facie case. DiDonato v. Kennedy, 822 A.2d 179, 181 (R.I. 2003) (citing Fund for Cmty. Progress v. United Way of Se. New England, 695 A.2d 517, 521 (R.I. 1997)).

Although, generally, only a prima facie case is necessary for a preliminary injunction, the standard is heightened if the moving party is seeking mandatory action by the opposing party. See King v. Grand Chapter of R.I. Order of E. Star, 919 A.2d 991, 995 (R.I. 2007). A mandatory injunction is an injunction that "commands action from a party rather than preventing action." Id. In addition to the four requirements for a preliminary injunction laid out above, a mandatory injunction also requires a "showing of 'very clear' right and 'great urgency.'" Id. (quoting Giacomini v. Bevilacqua, 118 R.I. 63, 65, 372 A.2d 66, 67 (1977)).

C Summaries of Witness Testimony

Provided here are summaries of the testimony presented at the hearing. These summaries are not intended to replace the comprehensive stenographic record or the copious notes taken by the Court during the hearing. Throughout this Decision, these and other portions of witness testimony, as well as this Court's factual findings and credibility determinations, will be addressed. This summary overview may not include all of those testimony portions or Court determinations. Plaintiff's witnesses:

1. John Sauro: Mr. Sauro began his testimony with a background on his employment with the Providence Fire Department and the injury which led to his accidental disability pension. He then testified that the City had ordered six IMEs during his employment with the Providence Fire Department—three from the initial injury and three as part of his disability application. He testified that in 2008 or 2009, the City began requiring all disability pensioners annually to recertify their disabilities with their own doctors, which Mr. Sauro complied with when requested. Mr. Sauro then testified about the events leading up to and the aftermath of the Channel 12 news story and resulting "nonstop media attention." (Tr. at 30, Vol. I, Oct. 1, 2014.) Mr. Sauro testified that in June 2011, the City noticed him to appear for an IME with Dr. DeLuise, which he attended. Mr. Sauro testified that the Board reviewed the results of the IME at its July 2011 meeting and ordered Mr. Sauro to undergo more testing, which Mr. Sauro framed as a second IME. Mr. Sauro testified that Board members John Igliozzi and Kerion O'Mara both made public statements against Mr. Sauro, which Mr. Sauro testified indicates that they were biased in their Board votes on his pension. However, Mr. Sauro testified that he never underwent the additional testing because he was required to get a prescription for the test, and his physician, after conducting an exam that Mr. Sauro also describes as an IME, refused to issue a prescription because the test was unnecessary. Mr. Sauro was then dropped from the Board agenda.
In July 2013, the City again noticed Mr. Sauro to appear for an IME, this time with Dr. McKeon in Waltham, MA, which was rescinded because the IME was outside of Mr. Sauro's state of residence. Mr. Sauro testified as to the City ordinance change[10] allowing for out-of-state IMEs and the subsequent notice to appear for an IME with Dr. McKeon in September 2013. He testified as to the events of September 10 through 13, 2013 regarding cancelling the IME, his wife's communication with Sybil Bailey, and he and his wife's errands during those days. He testified that he was under doctor's orders not to attend the out-of-state IME and "would have probably died" if he had gone. (Tr. at 126, Vol. I, Oct. 2, 2014.) Mr. Sauro testified that his pension was suspended by the Board on December 18, 2013. He testified that as a result of the suspension, he has suffered not only financial harm, but the stress of the City's multiple requests for IMEs has also caused him physical and mental injury.[11]
2. Councilman John Igliozzi: Councilman Igliozzi is a member of the Board and a member of the Providence City Council, among other positions. He holds his Board position because he is the Finance Chair for the Providence City Council. Councilman Igliozzi testified that he has been an advocate for pension reform throughout his sixteen-year tenure with the Providence City Council. He testified that in or around April of 2011, Tim White showed him video of Mr. Sauro lifting weights in a gym, which gave him concerns because he wondered if Mr. Sauro's injury had healed. He testified that he felt the need to "revisit" Mr. Sauro's pension because of his fiduciary duty to the citizens of Providence. (Tr. at 248, Vol. I, Oct. 2, 2014.) However, he testified that he had not made up his mind on whether to suspend Mr. Sauro's pension at the time that Mr. White visited him. Councilman Igliozzi also testified as to his understanding of the City ordinances regarding disability pensions, which, to his recollection, require an IME once per year. He testified that he voted with the Board to request additional testing after the IME report by Dr. DeLuise in 2011 because the evidence was compelling that there may be an issue and he felt that the City needed to investigate further. Councilman Igliozzi also testified that he did not recuse himself from further Board voting regarding Mr. Sauro because he had not prejudged the matter, and he would continue to fulfill his fiduciary duty to the citizens of Providence.
3. Kerion O'Mara: Mr. O'Mara is a disabled, retired Providence police officer, and he had been a member of the Board since around 2007.[12] He testified that the Board typically reviews one or two pension applications each month; some are approved and some are denied. Although he could not recall the specific statements that he made in regard to viewing the news story about Mr. Sauro, he stated that the comments quoted in the subsequent news articles were the types of statements that he would have made. Mr. O'Mara testified that he was directly involved with having Mr. Sauro's pension added to the Board agenda for reconsideration because he believed that there was a need to examine the situation further.[13] Mr. O'Mara acknowledged that Plaintiff's attorney asked him to recuse himself from Mr. Sauro's matter and Mr. O'Mara refused. Mr. O'Mara testified—upon examining Dr. DeLuise's written report—that he recalled that Dr. DeLuise recommended additional testing for Mr. Sauro. Mr. O'Mara testified that his only concern after reading Dr. DeLuise's report was that Mr. Sauro undergo additional testing. Mr. O'Mara additionally testified that he was aware of news stories related to other disability pensioners, but that Mr. Sauro was the only one that he felt required further investigation. Mr. O'Mara additionally testified that he has known Mr. Sauro and his family for a long time, and Mr. Sauro's brother, Tony, helped save Mr. O'Mara's life when he was shot in the line of duty. He testified that he has no animosity towards Mr. Sauro or any member of the Sauro family. Additionally, Mr. O'Mara stated that he had retired from the Board prior to the December 18, 2013 vote that resulted in the suspension of Mr. Sauro's pension.
4. James Lombardi: Mr. Lombardi has been the treasurer of the City for three and a half years, and he has been a member[14] of the Board during that time. Mr. Lombardi testified that the Channel 12 news story left him surprised and concerned, and he testified that he wanted to investigate Mr. Sauro's injury status. Mr. Lombardi testified that he voted to keep Mr. Sauro on the Board agenda around May 2012, but the remainder of the voting Board members approved removal. He testified that after that vote he spoke with the media and indicated that the Board should have pursued the matter further and suspended Mr. Sauro's pension until he submitted to additional testing.[15] However, Mr. Lombardi stated that he approaches each decision on the Board with a fair and impartial mindset, and he only called for a suspension of Mr. Sauro's pension because Mr. Sauro had refused to comply with the Board's order for medical exams.
5. Sybil Bailey: Ms. Bailey is the director of Human Resources for the City. Her department[16] is responsible for noticing pensioners of recertification and IME requests as well as selecting the doctors for IMEs. Ms. Bailey testified that her office will sometimes send requests of their own accord without an order from the Board.[17] Her office maintains a list of doctors that they utilize for IMEs as well as for workers' compensation examinations. When an examination is needed, her office will contact the doctor first to be sure that the doctor is willing to examine the employee. Ms. Bailey testified that a pension study commission revealed the need to reexamine disability pensioners, which resulted in the annual recertification process to supplement the as-requested IMEs. Ms. Bailey testified that the recertification and IME process was put on hold during 2012 because the City was dealing with changes in Medicare and with pension litigation. In 2013, they just picked up where they left off.[18]
With regard to selecting Dr. McKeon in 2013, Ms. Bailey testified that the office would have been looking for an orthopedic surgeon and a doctor that was distanced from the media hype of Mr. Sauro's case. She testified that Dr. McKeon was probably not on their reference list, but she believes that Ms. Conrad received a referral from the Deputy Commissioner of Public Safety, Michael O'Toole. Ms. Bailey testified that she was unaware that IMEs must be scheduled at a pensioner's place of residence until she received Mr. Sauro's objection to the July 2013 IME in Waltham, MA. In response to that objection letter, Ms. Bailey's office cancelled the July 2013 IME with Dr. McKeon. Ms. Bailey testified that she then received a copy of a letter from City Solicitor Chiavarini that the ordinance had been amended and IMEs were no longer limited to the place of residence.
Ms. Bailey also testified about the communications with Karen Sauro regarding the rescheduled September 13, 2013 IME. Ms. Bailey received an email from Ms. Sauro on September 10, 2013 indicating that it would be physically and financially impossible for Mr. Sauro to attend the IME. Ms. Bailey testified that she authorized surveillance on Mr. Sauro for September 11 through 13, 2013 because she and Ms. Conrad were concerned that Mr. Sauro would not attend the IME.[19] She testified that they hired Brandon Lowe for the surveillance, whom she had hired many times before for city surveillance for workers' compensation and disciplinary matters. Ms. Bailey also testified that she had a lengthy telephone conversation with Ms. Sauro on September 12, 2013, during which she requested that Ms. Sauro submit a note from one of Mr. Sauro's doctors[20] supporting her claim that Mr. Sauro was unable to attend the IME. She testified that the surveillance documented Mr. Sauro leaving the house and driving on both September 12 and 13, 2013.
Ms. Bailey testified that she rescheduled Mr. Sauro's appointment with Dr. McKeon to October 16, 2013. Ms. Bailey referred Mr. Sauro's case to the Board after he failed to appear for the October 2013 IME. She additionally testified that she attended the December 18, 2013 Board meeting. She initially testified that she did not believe that she spoke or brought anything with her to the meeting, but she later indicated that she did speak at the meeting regarding her conversation with Ms. Sauro. Ms. Bailey also testified that she has sent other disability pensioners for IMEs, including two prior to 2011, and she has requested additional medical documentation from others when she did not feel that a full IME was required.
6. Brandon Lowe: Mr. Lowe is a licensed private investigator and the Director of Investigations for his company, Interstate Investigations. He testified that on September 10, 2013, he received a telephone call from Ms. Conrad who requested that Mr. Lowe monitor Mr. Sauro for the next three to five days. Mr. Lowe testified that he has frequently done surveillance work for the City, he has no contract or fee agreement[21] with the City, and he is frequently given discretion in how much surveillance is necessary. Mr. Lowe testified that he has done thousands of surveillance jobs, and he does not form opinions of the parties that he follows. Mr. Lowe testified that he did not see Mr. Sauro leave the house on September 11, 2013. Mr. Lowe testified from his notes that on September 12, 2013, he observed Mr. and Ms. Sauro depart their home in a Jeep Wrangler.[22] He testified that over the next few hours, he observed Mr. and Ms. Sauro visit an office in Warwick, Office Max, Stop and Shop, and CVS. Mr. Lowe additionally testified that he continued his surveillance of Mr. Sauro on September 13, 2013, and he observed Mr. and Ms. Sauro again leave their home, with Mr. Sauro driving for part of the day. Mr. Lowe testified that—although he has no medical training—he did not observe any outward signs of pain or discomfort from Mr. Sauro throughout the surveillance.
7. Karen Sauro: Ms. Sauro is Mr. Sauro's wife of eighteen years. Ms. Sauro testified that Mr. Sauro's mental and physical health had significantly deteriorated over the summer of 2013, and both she and Mr. Sauro were frequently bedridden and taking drugs with sedative effects. She testified that she was concerned with her husband attending the September 13, 2013 IME, specifically because neither of them could drive that long of a distance, and Mr. Sauro might suffer a "stroke, heart attack, a nervous breakdown, [or] go into a psychosis" if he had to travel that far. (Tr. at 590, Vol. IV, Oct. 7, 2014.) Ms. Sauro testified that she emailed Ms. Bailey on September 10, 2013 regarding cancelling the September 13, 2013 IME, and she did not receive a response on September 10 or 11, 2013. Ms. Sauro testified that she called Ms. Bailey on September 12, 2013, and Ms. Bailey told her that she would need a doctor's note faxed by the end of the business day in order to cancel the IME. Ms. Sauro then detailed the time that she and Mr. Sauro spent outside of the house that day, and the letter that she received from Ms. Bailey via email when they arrived home. Ms. Sauro testified that on September 13, 2013, Mr. Sauro suffered "some kind of attack" while they were out of the house because he believed they were being followed. (Tr. at 610, Vol. IV, Oct. 7, 2014.) Ms. Sauro also testified that she and Mr. Sauro were living in Florida shortly before the July 2013 notice of the out-of-state IME. Ms. Sauro testified that she did not believe Mr. Sauro would have been able to attend an IME even if it had been in Cranston, their city of residence.
8. Carl Richards: Mr. Richards is a firefighter with the Providence Fire Department. He also became a Board member in October 2013, after being elected by his fellow Providence Fire Department union members. Mr. Richards testified that he had viewed the Channel 12 news story and that it "looked bad" but "situations like that are multidimensional . . . not just face value." (Tr. at 655, Vol. IV, Oct. 7, 2014.) Mr. Richards received a copy of Plaintiff's medical records from Plaintiff's brother, Rocco. He testified that he spoke with Plaintiff on the morning of the December 2013 Board meeting and informed him that "his not going to the doctor's appointment, by city ordinance, it was clear that it was, in effect, refusal to go." (Tr. at 656-57, Vol. IV, Oct. 7, 2014.) Mr. Richards admitted that he had made up his mind on how he would vote after reviewing Plaintiff's medical records and the City ordinance, before even viewing the surveillance video at the Board meeting. He testified that he attended the December 18, 2013 Board meeting and voted to suspend Plaintiff's pension. He further testified that he spoke with Rocco Sauro at some point after the meeting, who was upset about Mr. Richard's vote. He informed Rocco Sauro that he had voted based on the evidence presented and the language of the pension ordinance. He stated that he explained to Rocco Sauro that "public perception [of Plaintiff] is that he is the poster boy for, you know, pension fraud." (Tr. at 662, Vol. IV, Oct. 7, 2014.)
9. Rocco Sauro: Rocco Sauro[23] is Plaintiff's brother. He is a Lieutenant with the Providence Fire Department, where he has worked since March 16, 1992. Rocco Sauro testified that there are no light duty positions available to a firefighter on an accidental disability pension; rather, the light duty positions are reserved for active firefighters who will be returning to full service. Rocco Sauro stated that in November 2013 he provided a copy of Plaintiff's medical records to Carl Richards so that Mr. Richards could "get up to speed on his case" before it went before the Board. (Tr. at 675, Vol. IV, Oct. 7, 2014.) Rocco Sauro met with Mr. Richards again in January 2014 to express his displeasure with Mr. Richards' vote at the December 2013 Board meeting. According to Rocco, Mr. Richards stated that he had to vote against Plaintiff, who was "going to be the poster boy for disability pension fraud, " and that Mr. Richards would have lost his credibility with the Board if he had voted in Plaintiff's favor. (Tr. at 676, Vol. IV, Oct. 7, 2014.) Rocco Sauro testified that Plaintiff could not perform the duties of a firefighter in his condition, but, on cross-examination, he admitted that he has never personally reviewed Plaintiff's medical records.
10. John Sauro: Upon second examination, Mr. Sauro was presented with several documents by Plaintiff's attorney related to Mr. Sauro's current medical conditions as well as his medical conditions at other times relevant to this case. Mr. Sauro additionally testified to the health benefits (physical and mental) that he had been experiencing from working out at the gym. He has not returned to a gym since the news story aired in April 2011. On cross-examination, Mr. Sauro indicated that several of his medical problems were related to the stress of the dispute with the City over his pension, including his right knee pain, his colorectal disease, and his right hip pain. Mr. Sauro testified that Dr. Porto had informed him that driving while taking his sedative medications would be dangerous, but that she indicated short trips were okay when he felt that he could manage it. Mr. Sauro stated that he had no choice but to drive because he had no other way to get to his doctors' appointments and other necessary errands. Additionally, Mr. Sauro testified that he would not have attended the September 2013 IME even if the doctor had been located in Rhode Island because City ordered IMEs are "post traumatic stress disorder triggers." (Tr. at 724, Vol. IV, Oct. 7, 2014.) However, Mr. Sauro maintained that he had "never refused an IME, ever." (Tr. at 726, Vol. IV, Oct. 7, 2014.) He additionally testified that his understanding of Providence City Code § 17-189 is that if one disability pensioner is sent for an IME, all disability pensioners must be sent.

II Analysis

For this Court to grant the requested preliminary injunction, the Court must find that (1) Mr. Sauro has demonstrated a reasonable likelihood of succeeding on the merits of his case; (2) Mr. Sauro will suffer irreparable harm if his pension is not restored; (3) upon balancing the equities in the case, including the public interest, the balance favors Mr. Sauro; (4) issuance of the injunction will preserve the status quo; (5) Mr. Sauro has a very clear right to return of his pension; and (6) Mr. Sauro has a great urgency in having his pension reinstated. See King, 919 A.2d at 995; Iggy's Doughboys, Inc., 729 A.2d at 705.

The Court's findings and conclusions are for the purposes of the preliminary injunction only, based on the testimony and exhibits presented at the hearing. The Court is aware that litigation in this case will continue, and the findings may change as new facts are brought forth during discovery and at trial. This Decision does not purport to address the merits of whether Plaintiff is entitled to his disability pension. That is the prerogative of the Board, and the instant matter is not an appeal of the Board's decision. The inquiry for the instant Decision only extends to whether the Court should, in the exercise of its discretion, afford equitable relief in the form of ordering the Board to reinstate the Plaintiff's pension benefits. Other than such equitable relief, the Court has no jurisdiction to determine the merits of the Board's action on an appeal.

A Likelihood of Success on the Merits

In his First Amended Complaint, Plaintiff advances several theories of recovery based on various alleged actions by Defendants since 2011. Most of Plaintiff's causes of action that were developed at the hearing are rooted in alleged federal constitutional violations. The Plaintiff's federal claims are brought under 42 U.S.C. § 1983.[24] This Court addresses each cause of action in turn below.

1 Due Process

The Plaintiff's allegations of harm by Defendants predominately relate to Count II of the First Amended Complaint: violations of Plaintiff's due process rights. Plaintiff alleges that he was denied a fair hearing by the Board on multiple occasions[25] because members of the Board[26]were prejudiced against Mr. Sauro and refused to recuse themselves. Plaintiff claims that the Board exceeded its authority in ordering (1) the functional capacity evaluation in 2011 and (2) the IME in 2013. Plaintiff also claims that the December 2013 Board meeting—at which his pension was suspended—constituted an unfair hearing because the Board ignored the controlling law on what constitutes "refusal" of an IME, and Mr. Sauro was not provided a written decision setting forth the Board's findings of fact and conclusions of law.

a Procedural Due Process: Notice and Opportunity to be Heard

The Fourteenth Amendment to the United States Constitution states that no state shall "deprive any person of life, liberty, or property, without due process of law." One "essential principle of due process" is that the deprived party must receive notice and be given an opportunity to be heard prior to the deprivation. State v. Germane, 971 A.2d 555, 579 (R.I. 2009) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)). Mr. Sauro's pension was suspended at the December 18, 2013 Board meeting. The Board sent a notice to Mr. Sauro prior to the Board meeting informing him that the Board would be discussing his "physical health/mental health" at that meeting. (Ex. 46.) Although Mr. Sauro did not personally attend that meeting, he was afforded an opportunity to attend. See Germane, 971 A.2d at 579 (citing Loudermill, 470 U.S. at 542). Mr. Sauro's attorney, Joseph Voccola, did attend the meeting ...


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