Professional Documents
Culture Documents
No. 96-1245
STEPHEN R. MARQUES,
Plaintiff, Appellant,
v.
KEVIN J. FITZGERALD,
Defendant, Appellee.
____________________
____________________
Before
____________________
appellant.
Kathleen M. Powers with
__________________
appellee.
____________________
brief for
____________________
This case
concerns several
claims
brought
by
discharge while a
plaintiff-appellant,
Stephen
R.
Marques,
probationary employee of
the city.
on his
Marques,
pond
due
to
his
fear
of
city
removed
the case
capsizing
and
was
subsequently
to federal
court.
The
law; the
district court
We affirm
on two claims,
the Rhode
and vacate as to
BACKGROUND
Marques' need for the life preserver, but told him he would get
____________________
We
take the
testimony at trial.
facts
from the
pleadings
and from
the
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Marques
again been assigned to duty in the boat cutting reeds, told lead
in the boat, that he would like a life preserver, and that he had
asked for one on the prior day but not received it.
Barlow
questioned the need for a life preserver, given the depth of the
Marques
At
Barlow indicated
Gammell.
at the pond site about the safety of the project, Marques and
____________________
Testimony
indicating
five
feet.
was
presented by
city
witnesses
at trial
by dredging, and
measures
approximately
cement walls.
300 feet
by
250
feet, with
retaining
East Providence, who gave the original order for the work project
at Jones Pond, testified that the weed cutting project could have
been
performed by laborers in
a boat, as
actually occurred, or
23rd session, he
lost hold of
a five
foot
was using; when he grabbed it, the rake was almost fully
-3-
On their
termination.
of his attitude.
his firing.
counseling.
difficulties.
emotional distress, and that the city had violated the Rhode
____________________
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At
DISCUSSION
To
affirm, we must find that the evidence on each count would permit
Fashion
_______
House v. K Mart Corp., 892 F.2d 1076, 1088 (1st Cir. 1989).
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____________
____________________
4
brought
(R.I.
follows:
the Rhode
claims were
Island Whistleblowers'
Act
Act (on the grounds that the city saw him as disabled) (42 U.S.C.
28-50-1
- 28-50-9); the
Rhode Island
Civil
Rights
Act
(R.I.
Gen. Laws
42-112-1
et
seq.); and
Marques voluntarily
dismissed a claim
actions
violated Rhode
policy.
After the
all the
other claims,
Marques moved
however,
the district
court denied
address
this
Island's safe
46-22-1 - 19).
boating practices
issue because
to
appellant did
public
verdicts on
reinstate this
this motion.
not
Rhode
We
count;
need not
brief it.
See
___
906 F.2d 25, 40 (1990) (appellant waives any issue not adequately
raised in initial brief).
-5-
A.
part that:
We
However,
(4)
following:[...]
(iii) A county, city, town, or regional governing
body, a council, school district, or a board,
department, commission, agency, or any member or
employee thereof.7
____________________
28-50-3(1) (1995).
version
of
statutory
the
The current
Whistleblowers'
number, (R.I.
Act
that
Gen. Laws
Rhode
28-50-2(4)(iii) (1995).
carried
36-15-1
an
- 10);
-6-
body."
violation.
suspected violations.
He
There is
We do, however,
-7-
Where
the terms of a statute are clear, a court must give the words
In re
_____
As
Therefore, we turn to
at hand, although it, too, has not been the focus of relevant
caselaw.9
____________________
8
and
We look
Conn.
employer shall
Gen.
Stat.
Ann.
31-51m
(West
1987)("No
penalize any
-8-
The statutes in
____________________
employee
because
the
writing, a violation
federal
law
or
employee
or a
...
reports,
verbally
suspected violation of
regulation
or
any
municipal
or
in
any state
or
ordinance
or
10
1995)
to the
attention of a
employer,
opportunity to
149,
275-E (1987
& Supp.
the
Stat. Ann.
and
then
correct that
allowed
the
employer
authority with
a
reasonable
L. ch.
831(1) -
-9-
wages.
Id. at 607.
___
at 608-09.
Id.
___
Hampshire Act:
Id. at 609.
___
Similar purposes,
The city,
that the Rhode Island statute, unlike the New Hampshire one, does
should be inferred.
There, the
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Id. at 931-32.11
___
Marques argues
We
The latter
____________________
11
the Federal
The court
Act have
been
deference is given
to administrative
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that allowed by the district court, and then whether Marques was
However,
was one for the jury, and not a proper subject for a directed
verdict.
on December 22nd:
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preserver.
did not want to go back in the boat because he felt sick, that he
did not feel conditions in the pond were safe, and that he still
again testified that he had told Barlow he was not feeling well,
that he was not going back in the boat, and that during general
the project.
evidence of the depth of the pond was not so clear that Marques'
B.
directed verdict for the city on his claim that the city's
distress.
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severe.
46).
Id. at 990.
___
The
outrageous.12
We agree.
of the end of his probation period may not have been pleasant for
Ins. Co., 935 F.2d 370, 380 (1st Cir. 1991) (quoting Restatement
________
___________
(Second) of Torts
_________________
____________________
12
Rhode
have used
three factors:
1)
the conduct
or
knowable
susceptibility
of
the
plaintiff
to
the
emotional
injury.
391, 401 (D.R.I. 1986), aff'd, 890 F.2d 484 (R.I. 1989).
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13
212
Both
after
her refusal
colorable claim
on
the
grounds that
found an employee
submit
to
polygraph
test
stated
outrageous because
she
to
in Moniodis v.
________
the
employer's actions
were
-14-
extreme and
condition, and
C.
We
CONCLUSION
This accords with the terms of the statute itself, and with the
As a jury could
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this claim.
claim.
costs to appellant.
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One half
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