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Brophy fights suspension with lawsuit against Peabody

By Julie Manganis
Staff writer

Fri, May 16 2008

- Click here to read the letters to John Brophy regarding the conditions of re-employment.

PEABODY - John Brophy fought a three-year legal battle to get his firefighter job back after being fired for sleeping through a 911 call.

Now he's back in court, claiming the city's requirement that he submit to a physical and a drug test before rejoining the force is discriminatory. He is seeking an injunction to bar the city from disciplining him for insubordination for failing three times to report for the examinations.

And he's also asking a judge to order the city to wait three months for him to return to work - because he's working another job as a plumber and needs to finish a project.

Brophy was fired after sleeping through a March 2005 call about a 6-month-old baby having difficulty breathing. An arbitrator later ruled Brophy's firing was excessive punishment and ordered that he get his job back. The finding was upheld by judges in the Superior and Appeals courts.

Brophy claims in the latest complaint, filed yesterday in Salem Superior Court, that Mayor Michael Bonfanti and fire Chief Steven Pasdon have conspired to set him up for a series of suspensions and possible termination, that they have engaged in "selective prosecution" of Brophy, and that they are in contempt of the arbitration award.

Last week, city officials confirmed that Brophy had been given a total of 12 days' suspension but would not specify what for.

But a letter from Bonfanti that was included in court papers spells out the reasons for the suspension: Brophy's failure to report for a fitness-for-duty examination and hair follicle drug test three times, and his failure to tell his superiors why he didn't show.

Brophy missed three appointments for the testing, including one on April 29 after an interview with the chief, who reminded him that he was in violation of an order.

According to the letter from Bonfanti, Brophy acknowledged that he had received all three orders, as well as voice mail reminders from the chief about the appointments.

"Finally, attorney (Daniel) Cocuzzo specifically asked you whether you realized you were (in) violation of direct orders from Chief Pasdon when you refused to report for the testing. You again answered in the affirmative," the mayor's letter said.

Bonfanti found that amounted to insubordination.

The three suspensions, of three, four and five days, were imposed consecutively, for a total of 12 days.

"You did not file an appeal under the civil service statute ... nor did you file for arbitration through your union. Therefore, you not only have a prior 30-day suspension on the books but you also currently have the previous three suspensions now part of your permanent employment record. Thus at this juncture the city has a duty and obligation to the citizens of Peabody to contemplate further discipline," Bonfanti wrote.

Bonfanti said the discipline could range "up to and including your discharge." A hearing was set for May 20.

Working as a plumber

In an affidavit, Brophy says that the requirements to take a physical and a drug test prior to rejoining the force are not in the department rules or contract and that by requiring him to do so, the city is treating him differently from other employees. He also said he had not received a formal letter reinstating him, only a letter referring to his reinstatement in connection with a request to report for the exam and test.

He then goes on to say that "due to the city's outrageous actions against me, I have been unemployed, as a firefighter," and "I knew I needed to mitigate my lost wages through other employment."

So, he said, he has worked as a plumber. In November, he signed a contract with Essex County Craftsman to install heating equipment at the Malden Senior Center, with a project start date of sometime in April or May.

He also says he had to post a performance bond of $80,000 to guarantee completion of the project by July. He says he would lose that bond if he does not complete the project.

"To fulfill the requirements of this project I am required to be at the center Monday through Friday from 7 a.m. to 3:30 p.m.," Brophy wrote. "I requested the city, through my attorney, to delay my reinstatement to the department so that I can complete the project at the center, as I would suffer severe financial harm if I did not complete my contract. The city refused my request despite the negative financial consequences that would follow my breach of contract at the center."

He says he will lose income and "potentially lose my home" if he defaults on the Malden project.

Brophy and his lawyers also contend that the city has set out guidelines and standards for his return, but has failed to specify what those are, and, "As a result of not knowing what these guidelines/standards are I don't know if I will be treated as a new hire or as a seasoned previously employed firefighter. Without knowing what is expected from me, upon my return, I am fearful the city will again unfairly terminate my employment with the department."

A hearing on the request is scheduled for May 22 in Newburyport Superior Court. That is two days after the scheduled disciplinary hearing.

Bonfanti had not yet received a copy of the court complaint last night, and it was not clear whether the disciplinary hearing would be rescheduled.