                                                        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.
                                                                     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.

                                          OPINION

       Justice Robinson, for the Court. The petitioners, former Providence Mayor 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

judgment.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 the 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 Parade’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.” About Us,
RHODE ISLAND PRIDE, http://www.prideri.com/ (last visited December 19, 2014).



                                               -1-
participation in the parade, the respondents sued the petitioners, 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 those 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 the

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 Travel4

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

Department, Mr. Fabrizio as a firefighter and Mr. Deninno 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 Company 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

uncommon.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.


                                              -2-
company chosen 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, nor

condone homosexual behavior.”        When 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 the 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 would jeopardize their employment status within

the Fire Department.

       Mr. Fabrizio and Mr. Deninno further alleged 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 claimed that the harassment did not end

with the work assignment; they averred that, after their assignment 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, despite

participating in meetings with the City’s Equal Employment Opportunity Officer, filing formal

grievances with their union, and lodging complaints with “upper-level management,” their

complaints went unresolved.




                                               -3-
       In June of 2004, Mr. Fabrizio and Mr. Deninno filed nearly identical 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 treasurer, Stephen Napolitano. The 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 rights of freedom of speech and association under the Rhode Island Constitution).6 Mr.

Fabrizio and Mr. Deninno sought several forms of relief, including declaratory 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
        All other counts in the complaint were disposed 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 violation 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) Count 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 undertake a great deal of discovery; among those whose depositions were
taken were Mr. Fabrizio, Mr. Deninno, and Chief Rattigan.




                                                -4-
assignment”––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 injunctive or declaratory relief

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

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

show that they were qualifiedly immune from suit. After considering the arguments of the

respective parties, the hearing justice rendered a bench decision denying the motion. While the

hearing justice noted that this Court had alluded to the possible applicability 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

him 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 writ 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 such an order constitutes an interlocutory decision; and, under our precedent, the

non-prevailing party is not entitled to an appeal of right. National Refrigeration, Inc. v. Capital

Properties, Inc., 88 A.3d 1150, 1154 (R.I. 2014). However, even though a direct appeal is not

available, a non-prevailing party may petition for certiorari with respect to an otherwise

nonappealable order. See Fayle v. Traudt, 813 A.2d 58, 61 (R.I. 2003). On occasion, we have




                                               -5-
granted a writ of certiorari following a denial of a motion 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 Insurance Co., 35 A.3d 902, 905 (R.I. 2012). Our review on

certiorari is confined to determining 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 National 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 the 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 judgment 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 constitutional violation is present.” Monahan v. Girouard, 911

A.2d 666, 673-74 (R.I. 2006). Accordingly, we conclude that, in view of the facts of this

specific case, it is not necessary to invoke the doctrine of qualified immunity because no

constitutional violation occurred.




                                               -6-
        Here, respondents received an order 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 participation 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 relatively 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 “[did] not relieve her of her professional

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 suit[ed] her moral

beliefs”).

        The respondents’ appearance in the parade, solely as members 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 that 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 discharged for exercising First Amendment rights must show they have engaged in

constitutionally protected speech—that is, “commenting upon matters of public concern”)

(internal quotation marks omitted).




                                              -7-
       As we noted in Monahan, “the first step in evaluating 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 parade as public servants carrying out a legitimate work assignment was 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.




                                               -8-
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion 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. 2012-157-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. Robinson III

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Brian Van Couyghen

ATTORNEYS ON APPEAL:

                      For Petitioners: Kevin F. McHugh, Esq.

                      For Respondents: Gina A. DiCenso, Esq.
