United States Court of Appeals
For the First Circuit
No. 08-2479
GORDON BARTON,
Plaintiff, Appellant,
v.
EDWARD J. CLANCY, JR., individually and in his capacity as Mayor
of the City of Lynn, Massachusetts,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Lipez, Stahl, and Howard,
Circuit Judges.
Harold L. Lichten, with whom Leah M. Barrault and Lichten &
Liss-Riordan, P.C. were on brief, for appellant.
John R. Hitt, with whom Cosgrove, Eisenberg & Kiley, P.C., and
James Lamanna, Assistant City Solicitor, were on brief, for
appellee.
January 14, 2011
LIPEZ, Circuit Judge. Plaintiff Gordon Barton appeals
from the district court's grant of summary judgment to defendant
Edward J. Clancy, Jr., mayor of the City of Lynn, Massachusetts
(City or Lynn). Barton brought claims against Clancy for
disability harassment, Mass. Gen. Laws ch. 151B, § 4, and
retaliation based on the exercise of his First Amendment rights, 42
U.S.C. § 1983.1 Barton's claims stemmed from an ongoing conflict
between Clancy and Barton, an African-American who served as a
firefighter for the City for nearly thirty years, until his
involuntary retirement in 2004 due to a work-related back injury.
During that time and in the years following his retirement, Barton
was an outspoken representative of the firefighter's union and a
vocal and frequent critic of City policies, and he participated in
several lawsuits against the City raising claims of race
discrimination and union contract violations. In addition to
serving as a firefighter, Barton served by appointment as a
volunteer on the City's Parks Commission beginning in 1996. After
his disability retirement from the fire department, Barton was
hired in the fall of 2006 as the boys' basketball coach for one of
the City's public high schools.
In April 2006, Clancy declined to reappoint Barton to the
Parks Commission. In the fall of 2006 and the spring of 2007,
1
Barton brought several additional claims under Massachusetts
state law, the dismissal of which he does not appeal here.
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after Barton was hired for the basketball coaching job, Clancy
publicly criticized Barton's ability to perform the job on the
ground that he had retired because of disability, repeatedly called
upon school officials to rescind his appointment, and initiated
investigations into Barton's payment of taxes and his disability
pension.
After careful consideration, we affirm the grant of
summary judgment as to the state law disability harassment claim,
which arises from Clancy's persistent public criticism of Barton
following his appointment as basketball coach. We conclude that
the mayor was not Barton's employer for purposes of the coaching
job. Although a few Massachusetts decisions have imposed liability
for workplace harassment on defendants who were not the plaintiff's
employer, none have imposed liability on a non-employer where, as
here, the alleged harasser was never physically present on the
plaintiff's work site and none of the alleged harassing acts
occurred at the plaintiff's workplace.
We likewise affirm the grant of summary judgment as to
the First Amendment claim. Leaving for another day the question of
whether Barton has demonstrated a First Amendment violation based
on the non-reappointment to a volunteer position, we conclude that
Clancy's refusal to reappoint Barton to the Parks Commission in
retaliation for the exercise of his First Amendment rights was not
a violation of clearly established law. We also conclude that
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Clancy is entitled to qualified immunity on Barton's First
Amendment claim based on retaliatory harassment because we cannot
say that a reasonable official in Clancy's shoes would have
understood that his conduct violated Barton's constitutional
rights.
I.
We recount the facts with the summary judgment standard
in mind, viewing the record in the light most favorable to the
nonmoving party, Barton. Vélez v. Thermo King de P.R., Inc., 585
F.3d 441, 444 (1st Cir. 2009).
A. Barton's First Amendment Activities
Barton has spoken out against Mayor Clancy and the City
on a number of occasions. He served as a firefighter for the City
from 1976 until 2004. As president of the Lynn firefighter's union
from 2000 until 2004, he was the "public face" of the union. In
2002, Clancy announced that the City would be laying off over
thirty firefighters. In response, Barton had a series of meetings
with Clancy and made statements to the local press expressing the
union's position that the lay-offs would negatively affect the
safety of Lynn citizens. Around this same time, Lynn firefighters
picketed a fundraiser held by Clancy. Barton was present during
the picketing and had a heated discussion with Clancy, in which
Clancy stated to Barton, "[i]t shouldn't have come to this."
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Barton also participated in several lawsuits against the
City. In 2004, the firefighter's union filed a lawsuit against the
City and Clancy, seeking funding for certain staffing clauses in
the union contract. The union obtained an injunction against
Clancy, ordering him to submit a funding request for the staffing
clauses at issue. Also in 2004, Barton was involved in a complaint
filed with the Massachusetts Commission Against Discrimination
(MCAD) against the Lynn Water and Sewer Commission, challenging the
Water and Sewer Commission's hiring practices as racially
discriminatory. In 2005, Barton was involved in a class action
lawsuit against the City, alleging that the civil service
examination used to qualify and rank applicants for firefighter
positions had a disparate impact on African-American and Hispanic
candidates.2 Finally, in 2006, Barton agreed, based on his union
sympathies, to be a plaintiff in a taxpayer lawsuit against the
City and Clancy, which sought to block the transfer of custodial
employees from the school department to the inspectional services
department. Clancy was aware of Barton's involvement in these
lawsuits and complaints against the City.
2
Barton was not named as a plaintiff in either the 2004
complaint against the Water and Sewer Commission or the 2005 suit
against the City. However, Barton testified that he supported and
was involved in each of these suits, and Clancy does not dispute
Barton's involvement.
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B. Barton's Retirement from the Fire Department
In 2004, after Barton suffered a work-related back
injury, the Chief of the Fire Department filed an application for
involuntary retirement with the Lynn Retirement Board asking that
Barton be retired because he was "unable to perform his job now and
in the future." The Lynn Retirement Board approved the
application, concluding, based on findings from a medical panel
that examined Barton, that he was "physically incapable of
performing the essential duties of his job and that said incapacity
is likely to be permanent." The Lynn Retirement Board granted
Barton an accidental disability retirement pension. Although
Barton's back injury renders him physically unable to perform his
job as a firefighter, it does not prevent him from doing other
kinds of jobs, and he is physically able to work as a basketball
coach.
C. Barton's Non-Reappointment to the Lynn Parks Commission
Barton was appointed to serve on the Lynn Parks
Commission in 1996, and was reappointed in 2000, prior to Clancy's
election as Mayor. The Lynn Parks Commission has general
supervisory powers over the City's parks and playgrounds. There is
no monetary compensation for service on the Parks Commission.
Barton explained that the primary benefit he received from serving
on the Parks Commission was the opportunity to help people.
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Barton served on the Parks Commission under his 2000
appointment until April 10, 2006, when he received a one-sentence
letter from Clancy thanking him for his service on the Commmission.
Clancy testified in deposition that he decided not to reappoint
Barton in 2006 because Barton had not requested reappointment.
Clancy had not asked Barton whether he was interested in
reappointment, and could not recall whether the individual who
replaced Barton had requested appointment.
D. Barton's Appointment as Basketball Coach
In the fall of 2006, the boys' basketball coach at Lynn
English High School resigned, leaving an immediate vacancy. On
November 28, 2006, Clancy met with Superintendent of Lynn Public
Schools Nicholas Kostan, Lynn English Principal Andy Fila, and
members of the School Committee to discuss hiring a replacement
coach. Clancy left before the close of the meeting, and was
informed later that afternoon that Superintendent Kostan, upon
Principal Fila's recommendation, had hired Barton as interim coach
for the 2006-2007 basketball season.
On the following day, November 29, Clancy hand-delivered
a letter to Principal Fila strongly criticizing the decision to
hire Barton and urging that Barton's appointment be rescinded. The
November 29 letter stated, inter alia:
To my utter astonishment, Superintendent Nick
Kostan called me later that afternoon to
inform me you had chosen, and he had approved
the choice of Gordon "Buzzy" Barton to be the
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interim basketball coach. It is my
understanding that Mr. Barton is receiving an
accidental disability retirement pension from
the City of Lynn because of a chronically-
disabling injury. To me, it is oxymoronic to
choose a person for this position who is
receiving a pension, based on an accidental
disability due to a possibly disabling
physical injury. It is an insult to the
intelligence of the taxpayers of this city.
. . .
Mr. Barton may possess many redeeming
qualities. However, a person receiving a
disability pension does not fit the mold for
a vigorous individual that is implicit in the
qualifications of being a basketball coach. .
. . I believe you should immediately rescind
this appointment. Personally, since this is
an interim appointment, a stable, established
person with coaching experience at the high
school level should be chosen.
Despite Clancy's protests, Barton remained employed as
the interim basketball coach. At the close of a successful 2006-
2007 basketball season, Superintendent Kostan officially hired
Barton as full-time coach for the boys' basketball team. On May 9,
2007, after learning that Barton had been appointed as full-time
coach, Clancy sent a second letter objecting to Barton's
appointment, this time to Superintendent Kostan. Clancy's May 9
letter expressed "disappointment" with the decision to hire Barton
and stated in part:
Why my objection?
Merriam-Webster's Collegiate Dictionary
Eleventh Edition defines disability as
follows:
(1b) inability to pursue an occupation
because of a physical impairment;
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(2) lack of legal qualification to do
something.
Mr. Gordon Barton is retired from the Lynn
Fire Department on an accidental disability
pension. . . .
I believe the taxpayers and citizens of the
City of Lynn are entitled to an explanation of
how its interests are being protected by the
hiring of an individual who is receiving an
accidental disability pension based on a
physical inability to work. The efficacy of
the public employee retirement system is
called into question. Next to the burgeoning
cost of health insurance, the skyrocketing
increases in pension costs put a strain on
municipal budgets and the City of Lynn's tax
rate. I reiterate the contention I expressed
in my letter of November 29, 2006 to Principal
Fila. I take strong exception to your approval
of Mr. Fila's appointment of Mr. Barton absent
sufficient evidence to protect the financial
interests of the City of Lynn.
Again, in spite of Clancy's strong criticisms, Superintendent
Kostan did not discharge Barton.
In addition to sending these letters directly to
Principal Fila and Superintendent Kostan, Clancy provided the
letters to the local press. Clancy's letters sparked multiple news
articles, several of which included excerpts of the letters. Many
Lynn residents sent letters to local newspapers expressing their
views on the topic, and many residents mentioned Clancy's letters
to Barton.
Shortly after writing the second letter, Clancy made
similarly critical statements about Barton's appointment in an
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interview with a local newspaper, The Daily Item. Clancy was
quoted as stating:
"My opinion of Barton's suitability aside, the
principle of having a person who is receiving
disability -- income tax free -- state pension
coaching is an anomaly and the city's
financial interests have to be protected,"
[Clancy] said. "What should happen is Barton
or Fila or whoever should get an indemnity
policy absolving the city of any liability."
. . .
"I don't care if he is just walking on the
court, he is receiving disability pension from
the city of Lynn based on physical
incapacity," Clancy said. "(The state
declared him) physically unable to work so I
think that disqualifies him from being coach.
In a basketball game there is movement, there
is energy, there is synergy and the coach
shows, at least in some fashion, how you play
defense or how a point guard plays offense.
Inherently, it implies or assumes some degree
of physical dexterity and Barton retired from
the city for the inability to do just that."
. . .
"If Barton gets a physical that says he's able
to work and Fila and Nick say he's the
basketball coach, I will participate in a
jump-ball ceremony for charity before the
first game," he said. "Absent the physical
disability disappearance, we need, at the very
least, a liability waiver."
In addition to his public attacks on Barton's appointment
as basketball coach and his requests to Barton's hiring authorities
that the appointment be rescinded, Clancy initiated investigations
into Barton's taxes and disability pension. Sometime after writing
the November 29, 2006 letter, Clancy made a request to the City's
deputy tax collector for any public documents related to Barton's
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payment of taxes. Clancy requested these records based on his
recollection that Barton had been late or delinquent in paying
certain taxes. He intended to use the tax documents to "see if the
pattern that I had seen earlier had persisted and whether my
recollection was correct or not." Clancy could not recall any
individuals about whom he had made a similar request for tax
information. In addition, Clancy requested public documents about
Barton's disability pension from the Lynn Retirement Board. Barton
was made aware of Clancy's requests for his tax and pension
records. In addition, in late May 2007, shortly after Barton filed
this lawsuit, attorneys for Barton and Clancy sparred over whether
state law prohibited Barton from working as a basketball coach
while receiving an accidental disability pension.
Clancy's conduct, and the resulting public controversy
surrounding Barton's employment, made Barton feel that he was "not
wanted" for the job and at times distracted him from his coaching.
Clancy's actions made Barton fearful about losing his disability
pension and his job as basketball coach, caused him immense stress,
and made him feel sick. He also had trouble sleeping.
E. Proceedings in the District Court
In May 2007, Barton filed this suit against Clancy,
individually and in his capacity as Mayor of the City of Lynn. As
relevant to this appeal, Barton asserted a violation of his rights
under Massachusetts state law, Mass. Gen. Laws ch. 151B (ch. 151B),
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§ 4, alleging that Clancy's conduct related to Barton's appointment
as basketball coach constituted unlawful disability harassment.
Barton further asserted a 42 U.S.C. § 1983 claim3 for violation of
his rights under the First Amendment, alleging that Clancy's
failure to reappoint him to the Parks Commission and Clancy's
conduct related to the basketball coaching job constituted unlawful
retaliation based on the exercise of Barton's First Amendment
rights.
The district court granted Clancy's motion for summary
judgment as to both claims.4 As to the disability harassment
claim, the district court concluded that Clancy was not Barton's
employer and, although MCAD decisions have imposed liability for
workplace harassment absent a direct employment relationship, those
decisions have not imposed liability for acts such as Clancy's that
occurred outside the workplace setting. The court further
3
Section 1983 imposes civil liability upon any person who,
acting under color of state law, "subjects, or causes to be
subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws."
42 U.S.C. § 1983. Mayor Clancy does not dispute that he was acting
under color of state law when he engaged in the conduct at issue
here.
4
The district court also granted Clancy summary judgment as
to Barton's remaining claims for tortious interference with
advantageous business relations, handicap discrimination in
violation of ch. 151B, § 4(16), unlawful retaliation in violation
of ch. 151B, § 4, and violation of the Massachusetts Civil Rights
Act, Mass. Gen. Laws ch. 12, § 11(1). On appeal, Barton does not
challenge the district court's ruling as to these claims, and we do
not address them.
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concluded that Clancy's actions were not sufficiently severe or
pervasive to create a hostile work environment.
As to the First Amendment claim, the court found that
Barton had asserted a "plausible First Amendment retaliation claim"
based on both Clancy's refusal to reappoint Barton to the Lynn
Parks Commission and Clancy's conduct related to Barton's
appointment as basketball coach. The court concluded that Barton
had shown that he spoke out on matters of public concern, that
Clancy's actions would tend to chill individuals in their exercise
of constitutional rights, and that there was a genuine issue of
material fact as to whether Clancy's actions were motivated by
Barton's history of speaking out. However, the court concluded
that Barton was entitled to qualified immunity because none of the
allegedly retaliatory acts violated clearly established law.
On appeal, Barton contends that the court erred in
granting summary judgment as to his disability harassment and First
Amendment claims. Summary judgment is properly granted where "the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a).5 We review the district court's grant of
5
Federal Rule of Civil Procedure 56 was amended effective
December 1, 2010. Although the prior version was applicable to
Clancy's motion, and the district court properly applied that
version, the standard has not changed and we thus cite the new
rule. See Fed. R. Civ. P. 56 advisory committee notes
("Subdivision (a) carries forward the summary-judgment standard
expressed in former subdivision (c), changing only one word –
genuine 'issue' becomes genuine 'dispute.'").
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summary judgment de novo, drawing all reasonable inferences in
favor of the nonmoving party. Thermo King, 585 F.3d at 446.
II.
Barton contends that the district court erroneously
granted summary judgment as to his disability harassment claim
under ch. 151B. Clancy responds that the district court properly
granted summary judgment for three independent reasons: (1) Barton
is not a "handicapped person" for purposes of ch. 151B; (2) Clancy
was not Barton's "employer," and ch. 151B does not permit liability
to attach to a nonemployer; and (3) Clancy's alleged harassment
toward Barton did not create a hostile work environment because it
was not workplace related and not sufficiently severe or pervasive.
A federal court sitting in diversity or, as here,
exercising supplemental jurisdiction over a state law claim must
apply state substantive law. Hoyos v. Telecorp Commc'ns, Inc., 488
F.3d 1, 5 (1st Cir. 2007). In doing so, we "look to the
pronouncements of a state's highest court in order to discern the
contours of that state's law." González Figueroa v. J.C. Penney
P.R., Inc., 568 F.3d 313, 318 (1st Cir. 2009). If the highest
court has not spoken directly on the question at issue, we predict
"how that court likely would decide the issue," looking to the
relevant statutory language, analogous decisions of the state
supreme court, decisions of the lower state courts, and other
reliable sources of authority. Id. at 318-19.
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A. Whether Barton Is "Handicapped" Under Chapter 151B
Chapter 151B defines "handicap" to include "(a) a
physical or mental impairment which substantially limits one or
more major life activities of a person; (b) a record of having such
impairment; or (c) being regarded as having such impairment." Ch.
151B, § 1(17); see also id. § 1(20) (defining the term "major life
activities" to include "working"). As the Massachusetts Supreme
Judicial Court (SJC) has explained, "[l]oosely speaking, the first
prong protects only those persons with actual physical or mental
limitations, while the third prong protects those persons who,
whether actually impaired or not, may be the victims of stereotypic
assumptions, myths, and fears regarding such limitations." Dahill
v. Police Dep't of Boston, 748 N.E.2d 956, 962-63 (Mass. 2001). An
employee's impairment, whether actual or perceived, substantially
limits the employee in the major life activity of working only if
the impairment "precludes him from performing a class of jobs."
City of New Bedford v. Mass. Comm'n Against Discrimination, 799
N.E.2d 578, 590 (Mass. 2003).
A reasonable jury could conclude that Barton satisfies
ch. 151B's definition of handicap because Clancy regarded him as
having a physical impairment that substantially limited his ability
to perform a range of jobs. Clancy's repeated criticisms of Barton
serving as a basketball coach reflect his assumption that, because
Barton had a back injury that left him physically unable to work as
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a firefighter and eligible for a disability pension, Barton was
also physically unable to perform a range of jobs including that of
a high school basketball coach. The "regarded as" prong is aimed
at precisely this kind of "stereotypic assumption[]." See Dahill,
748 N.E.2d at 963.6
B. Employment Relationship
Clancy next contends that Barton's handicap harassment
claim fails because Clancy was not Barton's employer for purposes
of ch. 151B. Barton responds that (1) Clancy had sufficient
control over the circumstances of Barton's employment to qualify as
his employer, and (2) even absent an employment relationship,
Clancy may be held liable for handicap harassment under ch. 151B,
§ 4(4A).
1. Whether Clancy Was Barton's Employer
Chapter 151B's definition of "employer" provides little
guidance, stating that
the term 'employer' does not include a club
exclusively social, or a fraternal association
or corporation, if such club, association or
corporation is not organized for private
profit, nor does it include any employer with
fewer than six persons in his employ, but
shall include the commonwealth and all
political subdivisions, boards, departments
and commissions thereof.
6
In light of this conclusion, we need not address Barton's
alternative argument that he qualifies as a handicapped person by
virtue of his work-related back injury under Mass. Gen. Laws ch.
152, § 75B, a section of the Massachusetts workers' compensation
law.
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Id. § 1(5). The parties do not cite, and our research has not
revealed, any Massachusetts decisions interpreting the term
"employer" under ch. 151B in a context similar to this case.
However, in interpreting ch. 151B, Massachusetts courts follow
federal case law construing analogous provisions of federal
antidiscrimination law. See Wheatley v. Am. Tel. & Tel. Co., 636
N.E.2d 265, 268 (Mass. 1994). Therefore, we look to federal
decisions interpreting the term "employer" under federal
antidiscrimination statutes.
In Lopez v. Massachusetts, 588 F.3d 69 (1st Cir. 2009),
we recently interpreted the term "employer" under Title VII of the
Civil Rights Act of 1964. We noted that Supreme Court precedent
has "established that when a statute contains the term 'employee'
but does not define it, a court must presume that Congress has
incorporated traditional agency law principles for identifying
'master-servant relationships.'" Id. at 83. Under the common law
test, "'the relevant factors defining the master-servant
relationship focus on the master's control over the servant.'" Id.
at 84 (quoting Clackamas Gastroenterology Assocs., P.C. v. Wells,
538 U.S. 440, 448 (2003)).
As we explained in Lopez, we look to the guidelines in
the Equal Employment Opportunity Commission (EEOC) Compliance
Manual to address the question of whether an employment
relationship exists. Id. at 85. The guidelines list a series of
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"non-exhaustive factors" that are indicative of an employment
relationship:
"[t]he employer has the right to control when,
where, and how the worker performs the job;"
"[t]he work does not require a high level of
skill or expertise;" "[t]he work is performed
on the employer's premises;" "[t]here is a
continuing relationship between the worker and
the employer;" "[t]he employer has the right
to assign additional projects to the worker;"
"[t]he employer sets the hours of work and the
duration of the job;" "[t]he worker is paid by
the hour, week, or month rather than the
agreed cost of performing a particular job;"
"[t]he worker does not hire and pay
assistants;" "[t]he work performed by the
worker is part of the regular business of the
employer;" "[t]he employer is in business;"
"[t]he worker is not engaged in his/her own
distinct occupation or business;" "[t]he
employer provides the worker with benefits
such as insurance, leave, or workers'
compensation;" "[t]he worker is considered an
employee of the employer for tax purposes;"
"[t]he employer can discharge the worker;" and
"[t]he worker and the employer believe that
they are creating an employer-employee
relationship."
Id. (quoting 2 Equal Emp't Opportunity Comm'n, EEOC Compliance
Manual, § 2-III, at 5716-17 (2008)) (alterations in original).
Applying these factors in the instant case, we conclude
that Clancy was not Barton's employer. One relevant factor,
whether "[t]he employer can discharge the worker," clearly
militates against finding otherwise. See id. It is undisputed
that the superintendent of Lynn's public school system, and not the
mayor, had the ultimate authority to hire and fire school athletic
coaches. The mayor's lack of hiring and firing authority is
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particularly clear in this case, where Clancy's letters strongly
urged Superintendent Kostan and Principal Fila to rescind Barton's
appointment, but Kostan and Fila rejected that suggestion and kept
Barton employed. Barton has not attempted to demonstrate, and the
record does not show, that any of the other factors listed in the
EEOC guidelines support a finding that the City's public high
school athletic coaches are "employees" of the mayor.
Barton does not argue that Clancy qualified as his
employer based on the factors listed in the EEOC guidelines.
Instead, he relies on our decision in Carparts Distribution Center,
Inc. v. Automotive Wholesaler's Ass'n of New England, Inc., 37 F.3d
12 (1st Cir. 1994), and argues that Clancy was his employer because
Clancy had the ability to control significant aspects of Barton's
employment. In Carparts, we stated that an entity would be an
"employer" under the Americans with Disabilities Act (ADA) if it
"exercised control over an important aspect of [the plaintiff's]
employment," such as employee health care coverage. Id. at 17. In
Lopez, however, we emphasized that the Supreme Court has restricted
the definition of "employer" under Title VII to its meaning at
common law. 588 F.3d at 84. We distinguished Carparts on the
grounds that it "involved two private entities, an unusual set of
facts, and a particular procedural posture," and noted that in
Carparts we ultimately "concluded that we lacked sufficient facts
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to determine whether this test even applied to the case at hand."
Id. at 88 (citing Carparts, 37 F.3d at 18).
Even assuming, arguendo, that the standard suggested in
Carparts is applicable here, Clancy did not exercise sufficient
control over any important aspect of Barton's employment to qualify
as his employer. Barton emphasizes ways in which the mayor
exercised some indirect influence over the hiring and financing of
high school basketball coaches. Under the Lynn City Charter and
state law, the mayor sits as chairman of the School Committee; the
School Committee in turn has the authority to elect the
superintendent; and the superintendent, in consultation with high
school principals, in turn has the authority to hire and fire
school athletic coaches, Mass. Gen. Laws ch. 71 §§ 47A, 59B. The
mayor also has some influence over public school funding. Under
the City Charter, the mayor submits a proposed budget to the City
Council for each fiscal year, which contains a complete financial
plan for all city funds and activities. The City Council then
adopts the budget, with or without amendments. However, as noted
above, it is undisputed that the superintendent, not the mayor, has
authority to hire and fire athletic coaches. The mayor's limited
and indirect influence over public school athletic coaches does not
indicate that Mayor Clancy exercised control over an important
aspect of Barton's employment.
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2. Whether § 4(4A) Requires An Employment Relationship
Barton next contends that even if Clancy was not his
employer, his handicap harassment claim can proceed against a
person other than his employer under ch. 151B, § 4(4A). Section
4(4A) provides that it is unlawful
[f]or any person to coerce, intimidate,
threaten, or interfere with another person in
the exercise or enjoyment of any right granted
or protected by this chapter, or to coerce,
intimidate, threaten or interfere with such
other person for having aided or encouraged
any other person in the exercise or enjoyment
of any such right granted or protected by this
chapter.
Barton reasons that § 4(4A) prohibits "any person," regardless of
whether that person is his employer, from interfering with his
enjoyment of a right protected by ch. 151B. He contends that
Clancy's conduct interfered with his enjoyment of the protected
right to work in an environment free from unlawful handicap
harassment. See ch. 151B, § 4(16) (prohibiting employment
discrimination based on handicap).7
The SJC has not directly addressed the issue of whether
a defendant may be held liable under § 4(4A) for interfering with
7
The SJC has not specifically confirmed that Massachusetts
recognizes a claim for a hostile work environment based on handicap
under ch. 151B, § 4(16). However, the parties do not dispute that
Massachusetts recognizes such a claim, and we proceed on the
assumption that such a claim is cognizable under ch. 151B, § 4(16).
See Quiles-Quiles v. Henderson, 439 F.3d 1, 5 & n.1 (1st Cir. 2006)
(assuming that a disability harassment claim is viable under
analogous provision of the ADA).
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a plaintiff's protected right to work in an environment free of
unlawful harassment, even where the defendant is not the
plaintiff's employer or employer-agent. However, Barton's reading
of § 4(4A) finds limited support in Massachusetts case law and
administrative MCAD decisions.8 See, e.g., Thomas O'Connor
Constructors, Inc. v. Mass. Comm'n Against Discrimination, 893
N.E.2d 80, 86-89 (Mass. App. Ct. 2008) (imposing liability under §
4(4A) on a general contractor for its supervisory employee's racial
harassment of plaintiff construction worker at the "unitary"
construction work site, even though neither the alleged harasser
nor the general contractor were plaintiff's employer); Mass. Comm'n
Against Discrimination v. Local Union No. 12004 ("McGrath"), 2004
WL 1852966, at *37 (MCAD 2004) (imposing individual liability on
union employees for sexual orientation harassment of supervisory
employee at company work sites, reasoning that liability is
properly imposed under § 4(4A) even "when the person charged with
employment discrimination is not the complainant's employer or an
agent of the employer"); Fluet v. Harvard Univ., 2001 WL 1602815,
at *41 (MCAD 2001) (imposing individual liability on professor for
sexual harassment of teaching assistant under § 4(4A) absent an
employment relationship); Erewa v. Reis, 20 MDLR 36 (MCAD 1998)
(holding that an elderly patient's niece could be held liable under
8
Administrative decisions of the MCAD are to be accorded
deference in the interpretation of ch. 151B. College-Town, Div. of
Interco, Inc. v. Mass. Comm'n Against Discrimination, 508 N.E.2d
587, 593 (Mass. 1987)
-22-
§ 4(4A) for racially harassing a home health care worker in the
patient's home, reasoning that the plain language of § 4(4A) does
not require any employment relationship).
Even assuming, arguendo, that Clancy may be held liable
absent an employment relationship, the question remains whether
Clancy's alleged conduct interfered with Barton's right to work in
an environment free of unlawful harassment.9
C. Whether Clancy Interfered With a Protected Right Under Ch. 151B
Clancy contends that even if a direct employment
relationship is not required to impose liability under § 4(4A), his
conduct did not interfere with Barton's protected right to work in
an environment free of unlawful harassment. Clancy emphasizes that
he and Barton did not work at the same site and that he was never
physically present at Barton's workplace.
As discussed above, in certain factual circumstances, the
MCAD and at least one Massachusetts appellate decision have
interpreted § 4(4A) to impose liability on "any person" for
interference with the plaintiff's right to work in an environment
free of unlawful harassment, even where that person is not the
9
Barton also suggests that Clancy violated a right protected
by ch. 151B in that he "attempted to interfere" with Barton's
employment as basketball coach by attempting to have him
discharged. However, Clancy was ultimately unsuccessful in
convincing Superintendent Kostan or Principal Fila to discharge
Barton. Nothing in § 4(4A) suggests that a defendant may be held
liable under this section for merely attempting, without success,
to interfere with a right protected by ch. 151B, and Barton cites
no authority for this interpretation.
-23-
plaintiff's employer or employer-agent. However, in each of these
decisions the alleged harasser was physically present at the
plaintiff's workplace and the harassing conduct occurred on the
plaintiff's work site during the work day. See, e.g., Thomas
O'Connor Constructors, 893 N.E.2d at 89 (verbal harassment of
construction worker by supervisory employee of general contractor
on "unitary work site"); McGrath, 2004 WL 1852966 at *37 (verbal
harassment of supervisory employee by union employees at gas
company dig sites); Erewa, 20 MDLR at 38 (verbal and physical
harassment of home health care worker during on-site visit to
patient's home).
Here, by contrast, Clancy was never physically present at
Barton's work site and none of the alleged harassing conduct
occurred at Barton's workplace, although Barton may have felt some
of the effects of that conduct at work. Clancy never visited
Barton's office while he was the basketball coach, never attended
any of his basketball games or practices, and was never otherwise
physically close to Barton while Barton was working as a basketball
coach. Clancy also never personally confronted Barton during the
time he served as coach and never spoke directly with Barton about
the basketball coaching position.
Barton does not cite, and we are not aware of, any
Massachusetts decisions imposing liability for harassment under
§ 4(4A) where, as here, the alleged harasser was not the
-24-
plaintiff's employer or employer-agent, was never physically
present at the plaintiff's work site, and did not perform any of
the alleged harassing acts on the plaintiff's work site. As a
federal court applying the law of the forum state, "we will not
create new rules or significantly expand existing rules. We leave
those tasks to the state courts." Phoung Luc v. Wyndham Mgmt.
Corp., 496 F.3d 85, 88 (1st Cir. 2007). In light of our
conclusion, we need not address Clancy's alternate argument that
his actions were not sufficiently severe or pervasive to create a
hostile work environment.
III.
Barton next contends that the district court erroneously
concluded that his First Amendment claim was barred by qualified
immunity. Barton claims that Clancy retaliated against him based
on the exercise of his First Amendment rights in violation of
clearly established law. Clancy's First Amendment claim is based
on two different alleged acts of retaliation: (1) Clancy's decision
not to reappoint Barton to his position on the Lynn Parks
Commission in April 2006, and (2) Clancy's campaign of harassment
against Barton in 2006-2007 following his appointment as basketball
coach. We discuss the qualified immunity framework, and then
address each component of Barton's retaliation claim.
-25-
A. Qualified Immunity Analysis
Public officials have "qualified immunity from personal
liability for actions taken while performing discretionary
functions." Lynch v. City of Boston, 180 F.3d 1, 13 (1st Cir.
1999). The qualified immunity analysis requires a court to decide
"(1) whether the facts alleged or shown by the plaintiff make out
a violation of a constitutional right; and (2) if so, whether the
right was 'clearly established' at the time of the defendant's
alleged violation." Maldonado v. Fontanes, 568 F.3d 263, 269 (1st
Cir. 2009) (adopting two-step analysis and abandoning prior usage
of three-step analysis in light of Pearson v. Callahan, 129 S. Ct
808, 815-16 (2009)). Courts may conduct this inquiry sequentially,
or resolve a particular case on the second prong alone. Id. at
270.
The "clearly established" prong has two aspects: (1) "the
clarity of the law at the time of the alleged civil rights
violation," and (2) whether, given the facts of the particular
case, "a reasonable defendant would have understood that his
conduct violated the plaintiff['s] constitutional rights." Id. at
269. "Cognizant of both the contours of the allegedly infringed
right and the particular facts of the case, the relevant,
dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted." Id.
-26-
(internal quotation marks and citation omitted). In other words,
"the salient question is whether the state of the law at the time
of the alleged violation gave the defendant fair warning that his
particular conduct was unconstitutional." Id. This does not mean
that "an official action is protected by qualified immunity unless
the very action in question has previously been held unlawful," but
rather that "in the light of pre-existing law the unlawfulness must
be apparent." Anderson v. Creighton, 483 U.S. 635, 640 (1987);
accord Hope v. Pelzer, 536 U.S. 730, 739 (2002); Bergeron v.
Cabral, 560 F.3d 1, 12 (1st Cir. 2009), abrogated on other grounds
by Maldonado, 568 F.3d at 269 ("[A] plaintiff need not show that
the conduct of which he complains is an exact replica of conduct
that previously has been held unlawful.").
In conducting a qualified immunity analysis, a court
should "use its full knowledge of its own [and other relevant]
precedents." Elder v. Holloway, 510 U.S. 510, 516 (1994) (internal
quotation marks omitted, brackets in original). The court must
examine whether there are "'cases of controlling authority . . . at
the time of the incident . . . [or] a consensus of cases of
persuasive authority such that a reasonable officer could not have
believed that his actions were lawful,'" Bergeron, 560 F.3d at 11
(quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)) (alterations in
original), and "should search the relevant authorities both in
circuit and out of circuit." Id.; see also El Dia, Inc. v.
-27-
Rossello, 165 F.3d 106, 110 n.3 (1st Cir. 1999) (declining to adopt
"a hard-and-fast rule" that out-of-circuit precedent is either
determinative of or irrelevant to whether a law is clearly
established, and instead stating that whether precedent "clearly
establishes" a law may depend in part upon "the location and level
of the precedent, its date, its persuasive force, and its level of
factual similarity to the facts before this Court").
B. Non-Reappointment to Parks Commission
Barton contends that Clancy violated clearly established
law by declining to reappoint him to the Lynn Parks Commission in
retaliation for the exercise of his First Amendment rights. Clancy
responds that it is not unlawful to decline to reappoint an
individual to a public volunteer position in retaliation for
protected activity, and that in any event he is entitled to
qualified immunity because the law was not clearly established as
of April 10, 2006, when the non-reappointment occurred. To assess
this response, we first survey the state of the relevant law on (1)
whether removal from a volunteer position such as Parks
Commissioner triggers First Amendment scrutiny, and (2) whether the
failure to reappoint to a volunteer position, as opposed to removal
from such a position, triggers such scrutiny. We then evaluate
whether the right at issue was clearly established in April 2006.
-28-
1. Law on Removal from a Volunteer Position
"Retaliation, though it is not expressly referred to in
the Constitution, is nonetheless actionable because retaliatory
actions may tend to chill individuals' exercise of constitutional
rights." Powell v. Alexander, 391 F.3d 1, 16-17 (1st Cir. 2004)
(internal quotation marks omitted). As a general matter, the
government may not deprive an individual of a "valuable government
benefit[]" in retaliation for his or her exercise of First
Amendment rights.10 Lynch, 180 F.3d at 13-14. In Perry v.
Sindermann, 408 U.S. 593, 597 (1972), the Supreme Court explained:
For at least a quarter-century, this Court has
made clear that even though a person has no
'right' to a valuable governmental benefit and
even though the government may deny him the
benefit for any number of reasons, there are
some reasons upon which the government may not
rely. It may not deny a benefit to a person
on a basis that infringes his constitutionally
protected interests – especially, his interest
in freedom of speech. For if the government
could deny a benefit to a person because of
his constitutionally protected speech or
associations, his exercise of those freedoms
would in effect be penalized and inhibited.
Clancy does not dispute this general principle, but
instead contends that a volunteer position, such as that of Parks
Commissioner, is not a "valuable governmental benefit," the
deprivation of which would trigger First Amendment scrutiny.
10
Clancy does not contend that Barton did not engage in
protected activity, or that the non-reappointment was not in
retaliation for his protected activity, and therefore we do not
address these issues.
-29-
Clancy relies heavily on Lynch, in which we held that, as of August
1994, it was not clearly established that it was unlawful for a
government official to remove an individual from a volunteer
position in retaliation for protected speech. 180 F.3d at 13. The
plaintiff claimed that she was terminated from service as a
volunteer on the mayor's Hunger Commission in retaliation for her
exercise of First Amendment rights. Id. at 6, 13. We first
"assume[d], without deciding, that the opportunity to serve as a
volunteer could constitute the type of valuable governmental
benefit or privilege the deprivation of which can trigger First
Amendment scrutiny." Id. at 13 (citing Perry, 408 U.S. at 597).
We then reasoned that even if removal from a volunteer position in
retaliation for protected activity violated the First Amendment, it
was not a violation of clearly established law:
It was not "clearly established" as of August,
1994, when [the supervisor] removed [the
plaintiff] from the Hunger Commission, that a
government official could not take such action
in retaliation for protected speech. We
recognize that the Supreme Court has held that
a variety of public benefits, in addition to
public employment, cannot be denied solely
because of the recipient's exercise of
constitutional rights. See, e.g., Rutan v.
Republican Party, 497 U.S. 62 (1990)
(promotion or transfer in government job);
Shapiro v. Thompson, 394 U.S. 618, 627 n.6
(1969) (welfare benefits). [The plaintiff]
argues that loss of a volunteer position with
a government agency falls into this category.
However, neither the Supreme Court nor this
court has ever held that the rule forbidding
denial of valuable governmental benefits in
reprisal for protected speech announced in
-30-
Perry v. Sindermann and its progeny extends to
the denial of non-compensated positions on
voluntary boards. Scant authority in support
of such an extension of the doctrine currently
exists.
Id. at 13-14. We acknowledged that in Hyland v. Wonder, 972 F.2d
1129, 1135 (9th Cir. 1992) ("Hyland I"), the Ninth Circuit held
"that volunteer status is a valuable governmental privilege that
cannot be denied on the basis of protected speech." Lynch, 180
F.3d at 14. However, we concluded that a single decision from
another circuit applying its own precedents was insufficient to
make it apparent to a reasonable public official that a particular
act was unlawful. Id.
Between August 1994, when the alleged retaliatory action
occurred in Lynch, and April 2006, when the alleged retaliatory
action occurred in this case, neither the First Circuit nor the
Supreme Court addressed whether removal from a volunteer position
in retaliation for protected speech can violate the First
Amendment.11 Relying on decisions from other jurisdictions, Barton
argues that the legal landscape has changed since Lynch and that
the right he asserts was clearly established at the time of his
non-reappointment. We review the relevant out-of-circuit
decisions, beginning with the earliest.
11
Ziskend v. O'Leary, 79 F. Supp. 2d 10 (D. Mass. 2000),
citing Lynch, held that at the time of the alleged adverse action
in that case, October 1997, it was not clearly established that
removal from a public volunteer position triggered First Amendment
scrutiny. Id. at 12-13.
-31-
Prior to Lynch, a Second Circuit decision, Janusaitis v.
Middlebury Volunteer Fire Department, 607 F.2d 17, 25-26 (2d Cir.
1979), found that the dismissal of a volunteer firefighter for
certain work-related complaints could violate the First Amendment.12
In that case, however, it was unnecessary for the court to engage
in an analysis of the plaintiff's status because Connecticut law
specifically provided that "volunteer firemen 'shall be construed
to be employees of the municipality' for purposes of workmen's
compensation." Id. at 21 (quoting Conn. Gen. Stat. § 7-314a).
Therefore, after concluding that the termination of the firefighter
was "state action" for purposes of a § 1983 claim, the court simply
treated the firefighter as a public employee for purposes of the
First Amendment claim. Id. at 25.13
More than a decade later in Hyland I, the Ninth Circuit
held that "the loss of a high-level volunteer position" with the
city Juvenile Probation Department could trigger First Amendment
12
The court ultimately concluded that no First Amendment
violation had occurred because the plaintiff had expressed himself
in a way that threatened the fire department's institutional
efficiency.
13
Janusaitis does not appear to reflect the prevailing view
of the Second Circuit. A far more recent decision stated, without
citation to Janusaitis, that the Second Circuit "had not yet
addressed whether 'claims of termination from volunteer positions
based on protected conduct are equivalent to, or should be analyzed
different from, more traditional claims of termination from
salaried government positions.'" Hoyt v. Andreucci, 433 F.3d 320,
327 n.5 (2d Cir. 2006) (quoting Gorman-Bakos v. Cornell Coop.
Extension of Schenectady Cnty., 252 F.3d 545, 551 n.2 (2d Cir.
2001)).
-32-
scrutiny. 972 F.2d at 1136. As noted, we concluded in Lynch that
Hyland I, a single circuit decision applying its own precedents,
did not suffice to clearly establish the right at issue. In
addition, both that case and its sequel, Hyland v. Wonder, 117 F.3d
405 (9th Cir. 1997) ("Hyland II"),14 relied in part on Janusaitis.
Neither Hyland decision considered the fact that in Janusaitis,
unlike in Hyland, state law required that the volunteer position at
issue be treated as equivalent to public employment for certain
purposes.
Between the two Hyland decisions, in Versarge v. Township
of Clinton, 984 F.2d 1359 (3d Cir. 1993), the Third Circuit
"assume[d], without deciding, that 'the opportunity to serve as a
volunteer [firefighter] constitutes the type of governmental
benefit or privilege the deprivation of which can trigger First
Amendment scrutiny.'" Id. at 1364 (quoting Hyland, 972 F.2d at
1135).
Several years later, in Andersen v. McCotter, 100 F.3d
723, 727 (10th Cir. 1996), the Tenth Circuit held that an intern
terminated from her position at a community corrections facility
was entitled to First Amendment protection. While the court
ultimately concluded that the plaintiff was an employee, it also
stated that her claim would not be defeated even if she were
14
Hyland I found that the loss of a volunteer position was
protected; Hyland II found that the right was clearly established
in 1988, when the plaintiff was terminated.
-33-
considered to be a volunteer. Id. Because it found the plaintiff
to be an employee, the court declined to decide whether it was
clearly established, as of March 1994, that volunteers were
entitled to First Amendment protection. Id. at 729.15 Instead, the
court relied on the unremarkable proposition that it had been
clearly established since 1968 that public employees were entitled
to such protection. Id. Most recently, in Mosely v. Board of
Educaction of Chicago, 434 F.3d 527 (7th Cir. 2006), the Seventh
Circuit found that the plaintiff stated a First Amendment claim
when she alleged that she had been denied the opportunity to
meaningfully participate in her role as a school committee
volunteer in retaliation for her protected activity. That case,
however, relied in part on another Seventh Circuit case which, like
Janusaitis, concluded that a volunteer firefighter could be
protected by the First Amendment based in part on a state statute
that treated volunteer firefighters as employees under the law.
Mosely, 434 F.3d at 535 (citing Brown v. Disciplinary Comm. of
Edgerton Volunteer Fire Dep't, 97 F.3d 969, 973-74 (7th Cir.
1996)).16
15
Although the court did not decide the issue, it did cite
Hyland I and Janusaitis after noting the defendants' argument that
volunteer protection was not clearly established.
16
Because the court was deciding a motion to dismiss for
failure to state a claim, neither a qualified immunity defense nor
its "clearly established law" component was at issue.
-34-
In sum, the Second, Seventh, and Ninth Circuits have
found that volunteer positions are entitled to constitutional
protection; however, these cases have relied in part, either
directly or indirectly, on state statutes which mandate that such
volunteers be treated as employees. The Tenth Circuit, albeit in
dicta, has concluded that volunteers enjoy First Amendment
protection without reliance on any such state statute. The Third
Circuit, like this circuit, has assumed without deciding that a
public volunteer position is a valuable government benefit, the
deprivation of which can trigger First Amendment scrutiny. At the
same time, no court has held that volunteers are not protected by
the First Amendment.
2. Law on Removal Versus Non-Reappointment
Whether volunteers are entitled to First Amendment
protection is only part of the equation. Clancy further argues
that, even if it was clearly established as of April 2006 that
removal from a public volunteer position triggers First Amendment
scrutiny, it was not clearly established that failure to reappoint
to a volunteer position triggers such scrutiny.
Strictly speaking, Clancy is correct. Although a number
of courts have subjected volunteer positions to First Amendment
scrutiny, those decisions have addressed removal from a volunteer
position, rather than non-reappointment to it. At the same time,
however, this distinction between removal and failure to reappoint
-35-
has been considered immaterial in cases where the plaintiff, unlike
Barton, is a public employee.
A plaintiff's lack of any right or entitlement to
employment does not defeat a First Amendment retaliation claim
based on denial of that employment. Perry, 408 U.S. at 597. In
Perry, the Supreme Court held that the nonrenewal of a nontenured
state college teacher's contract at the end of his one-year
contract triggered First Amendment scrutiny. The Court explained
that even if the plaintiff had no right to a valuable government
benefit, that benefit could not be denied simply because of his
protected speech. Id. Thus, the plaintiff's "lack of a
contractual or tenure 'right' to re-employment" was "immaterial to
his free speech claim." Id. at 597-98. The Court drew a
distinction between the plaintiff's First Amendment retaliation
claim, in which his lack of any entitlement or property interest in
his continued employment was "irrelevant," and his procedural due
process claim, in which those facts were "highly relevant." Id. at
599; accord Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 283-84 (1977).
Applying these principles, we have held that because a
First Amendment claim does not depend on any right or entitlement
to continued employment, First Amendment protections apply with
equal force whether the public employee is terminated from a
position or not reappointed. See, e.g., Ward v. Hickey, 996 F.2d
-36-
448, 452 (1st Cir. 1993) ("In general, as [plaintiff] was a
nontenured teacher the School Committee could have refused to
rehire her without any reason at all. However, a school committee
violates the First Amendment . . . if it denies rehiring in
retaliation for a nontenured teacher's exercise of constitutionally
protected speech." (internal citations omitted)); Cheveras Pacheco
v. Rivera Gonzalez, 809 F.2d 125, 128 (1st Cir. 1987) (holding that
First Amendment protections against loss of employment based on
political affiliation "apply generally to an employee's right to
retain his public employment, and they do not distinguish between
employees discharged from a permanent position and those who fail
to receive a new appointment" (emphasis in original)).
3. Clearly Established Law
Leaving for another day the question of whether Barton
has stated a constitutional violation, we hold that as of April
2006, the law was not sufficiently clear to put Clancy on notice
that declining to reappoint Barton to the volunteer position of
Parks Commissioner in retaliation for his First Amendment
activities was unlawful.
First, it was not clearly established that the loss of an
unpaid volunteer position could form the basis of a First Amendment
retaliation claim. Neither this circuit nor the Supreme Court has
resolved the basic question of whether an unpaid volunteer position
is a valuable government benefit, the deprivation of which can
-37-
trigger First Amendment scrutiny. Although several decisions from
other jurisdictions have subjected volunteer positions to such
scrutiny, some did so in direct or indirect reliance on state
statutes that treat volunteers as employees. Others did so only in
dicta, and still others assumed this principle without deciding it.
This collection of precedent hardly amounts to the type of
"consensus . . . of persuasive authority" that would preclude a
misunderstanding as to the legality of non-reappointment of a
volunteer. Bergeron, 560 F.3d at 11.
Second, we are not aware of any cases holding or even
assuming that non-reappointment to a volunteer limited-term
position triggers First Amendment scrutiny. Although the
proscription on refusing to reappoint employees in retaliation for
engaging in protected speech was clearly established in 2006, it
does not necessarily follow that the failure to reappoint a
volunteer to a term position in retaliation for engaging in
protected speech was also clearly prohibited.
In sum, determining whether Clancy was liable for his
failure to reappoint Barton would require us to answer two
uncertain legal questions: (1) whether a volunteer position is a
valuable government benefit the loss of which can form the basis of
a First Amendment retaliation claim; and (2) whether, even if the
removal from a volunteer position triggers First Amendment
scrutiny, the failure to reappoint to a volunteer term position can
-38-
also trigger such scrutiny. Consequently, the dimensions of the
right at issue were far from "sufficiently clear that a reasonable
official would understand that what he is doing violates that
right." Anderson, 483 U.S. at 640.
C. Campaign of Retaliatory Harassment
Barton further contends that Clancy violated clearly
established law by conducting a campaign of harassment against him
in retaliation for his protected activity. Barton's claim of
retaliatory harassment is based on substantially the same facts as
his handicap harassment claim: Clancy's statements conveying his
disapproval of Barton being hired as the basketball coach and
Clancy's investigation into Barton's tax records and pension.17
We first survey the law relevant to Barton's claim of
retaliatory harassment before assessing the claim itself.
17
Clancy suggests in his brief on appeal that Barton's
retaliation claim in the district court was based only on the non-
reappointment to the Lynn Parks Commission, and not on the alleged
campaign of harassment. This contention is not supported by the
record. Barton's complaint alleged that Clancy took a series of
actions against Barton, including both the non-reappointment to the
Parks Commission and the acts of harassment set forth above, and
then broadly alleged that "the conduct of defendant Clancy, as set
forth above, constitutes a violation of plaintiff's rights to
freedom of speech . . . ." In his opposition to Clancy's motion
for summary judgment, Barton specifically argued that Clancy
retaliated against him by "engag[ing] in a relentless public
campaign to oust Mr. Barton from his job as basketball coach" and
by requesting records related to Barton's taxes and disability
pension. Clancy responded to this argument in his reply brief.
-39-
1. Law on Retaliatory Harassment
Public employees "do not forego all the protections of
the First Amendment by virtue of working for the government."
Foley v. Town of Randolph, 598 F.3d 1, 5 (1st Cir. 2010). The
Supreme Court's jurisprudence has long protected the First
Amendment rights "not only of the employees themselves, but of the
general public in receiving the well-informed views of government
employees engaging in civic discussion." Id. (internal quotation
marks omitted). In evaluating whether a challenged government
action violates a public employee's First Amendment right to
freedom of speech, we examine (1) "'whether the employee spoke as
a citizen on a matter of public concern,'" (2) "'whether the
relevant government entity had an adequate justification for
treating the employee differently from any other member of the
general public,'" and (3) "whether the plaintiff can show that the
protected expression was a substantial or motivating factor in the
adverse employment decision." Curran v. Cousins, 509 F.3d 36, 45
(1st Cir. 2007) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418
(2006)).
Clancy does not argue that Barton did not speak as a
citizen on matters of public concern, that the government had an
adequate justification for its treatment of Barton, or that
Barton's protected speech was not a substantial or motivating
factor in the alleged harassment. Indeed, the district court
-40-
reached conclusions in Barton's favor on each of these issues,18 and
Clancy does not dispute those determinations. Therefore, we do not
address these issues on appeal.
a. Employment Relationship
Clancy first argues, without citation to authority, that
there can be no constitutional violation in the absence of an
employer-employee relationship with Barton for purposes of the
coaching position. As discussed above, Clancy did not exercise
sufficient control over Barton's employment as a high school
basketball coach to qualify as his "employer" for purposes of
Massachusetts's antidiscrimination law. However, the fact that
Clancy was not Barton's employer for purposes of employment
discrimination law does not foreclose Barton's First Amendment
retaliation claim.
A traditional employment relationship is not a
prerequisite to a First Amendment retaliation claim. Official
retaliation is actionable because it "tend[s] to chill individuals'
exercise of constitutional rights." Powell, 391 F.3d at 17
18
The district court stated:
Plaintiff's allegations, if true, establish a
constitutional violation. . . . Plaintiff has produced
facts tending to show that (1) he engaged in speech on
matters of public concern; (2) his interest in speaking,
and the public's interest, outweighed any legitimate
governmental interest in the efficient performance of its
public function; and (3) the speech was a motivating
factor in Defendant's alleged retaliation.
-41-
(quotation marks omitted); see also Crawford-El v. Britton, 523
U.S. 574, 588 n.10 (1998) ("The reason why such retaliation offends
the Constitution is that it threatens to inhibit exercise of the
protected right."). Government actions that threaten to chill
protected activity can occur in a variety of factual contexts and
are not limited to cases in which the government actor is the
plaintiff's employer. See, e.g., Bd. of Cnty. Comm'rs v. Umbehr,
518 U.S. 668, 674 (1996) (holding that First Amendment protections
apply to government contractors as well as government employees,
noting that in either case government efforts "may chill speech on
matters of public concern"). Indeed, actionable retaliation may
occur outside the employment context altogether. See, e.g., El
Dia, Inc., 165 F.3d at 109-10 (retaliatory withdrawal of government
advertising from newspaper infringes on First Amendment rights);
Nestor Colón-Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32,
40-41 (1st Cir. 1992) (retaliatory denial of land use permit
violates First Amendment).
b. Adverse Employment Action
Clancy further contends that "Barton's inability to show
a tangible adverse employment action is fatal to his First
Amendment claim." Clancy emphasizes that Barton has not alleged
specific changes in his working conditions such as the loss of a
promotion.
-42-
For purposes of a First Amendment retaliation claim, even
in an employment setting, a plaintiff need not suffer an "adverse
employment action" as that term ordinarily is used in the
employment discrimination context. The term "adverse employment
action" first developed in the Title VII context "as a shorthand
for the statutory requirement that a plaintiff show an alteration
in the material terms or conditions of his employment." Bergeron,
560 F.3d at 7-8 (emphasis added). However, there is no similar
requirement for a First Amendment claim filed pursuant to § 1983.
See id. at 8. Instead, "the 'adverse employment action' inquiry in
the section 1983 context focuses on whether an employer's acts,
viewed objectively, place substantial pressure on the employee's
political views" – or, more generally, on whether the defendants'
acts would have a chilling effect on the employee's exercise of
First Amendment rights.19 Id. at 8 (citing Agosto-de-Feliciano v.
Aponte-Roque, 889 F.2d 1209, 1218 (1st Cir. 1989) (en banc)); see
also Rivera-Jiménez v. Pierluisi, 362 F.3d 87, 94 (1st Cir. 2004)
("[T]he standard for showing an adverse employment action is lower
in the First Amendment retaliation context than it is in other
contexts (such as Title VII) . . . .").
19
Our precedent derives primarily from the employment setting,
and the standards are thus typically articulated for that context.
However, as we have observed, the First Amendment principles also
are applicable where the plaintiff is not in an employment
relationship with the defendant. This case is something of a
hybrid. Clancy was not Barton's employer, but his actions targeted
Barton's public employment.
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Thus, the pertinent question in a § 1983 retaliation
case based on the First Amendment is whether the defendant's
actions would deter "a reasonably hardy individual[]" from
exercising his constitutional rights. Agosto-de-Feliciano, 889
F.2d at 1217. A campaign of informal harassment, for example,
would support a First Amendment retaliation claim if the alleged
harassment would have such a chilling effect. See id. (informal
harassment short of actual or constructive discharge can support
§ 1983 retaliation claim if "government's actions are sufficiently
severe to cause reasonably hardy individuals to compromise their
political beliefs and associations"); accord Martinez-Vélez v. Rey-
Hernández, 506 F.3d 32, 42 (1st Cir. 2007) (same); see also
Rosario-Urdaz v. Velazco, 433 F.3d 174, 179 (1st Cir. 2006)
(stating that a "substantial campaign of harassment, instigated or
knowingly tolerated by superiors," can form the basis for a § 1983
claim).
Even "relatively minor events" can give rise to § 1983
liability, Rivera-Jiménez, 362 F.3d at 94, so long as the
harassment is not so trivial that it would not deter an ordinary
employee in the exercise of his or her First Amendment rights. See
id. at 94-95 (retaliatory harassment of plaintiff, including denial
of special benefits and assignments, was sufficiently adverse to
form basis for First Amendment claim); see also, e.g., Coszalter v.
City of Salem, 320 F.3d 968, 976-77 (9th Cir. 2003) (campaign of
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retaliatory acts, including disciplinary investigation, change in
duties, and verbal harassment and humiliation, was sufficient to
support First Amendment claim); Pieczynski v. Duffy, 875 F.2d 1331,
1335-36 (7th Cir. 1989) (campaign of minor harassments, including
removing plaintiff's long distance phone line, denying requests for
vacation time, confining duties to paperwork, and not allowing her
to change lunch hour, was sufficient to support First Amendment
claim); Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)
("campaign of petty harassments," including groundless reprimands
of plaintiff and holding her up to ridicule for bringing a birthday
cake to the office, supported First Amendment claim). But see
McKee v. Hart, 436 F.3d 165, 170-71 (3d Cir. 2006) (three comments
by supervisor that were critical of plaintiff's job performance,
without more, were too trivial to deter a person of ordinary
firmness from exercising First Amendment rights).
2. Clearly Established Law
We have no difficulty concluding that "the contours of
the allegedly infringed right," Maldonado, 568 F.3d at 269, were
clearly established at the time of Clancy's actions in 2006 and
2007. Precedents from this court and the Supreme Court
demonstrated that a First Amendment retaliation claim requires
neither a formal employment relationship, see Umbehr, 518 U.S. at
674, nor an "adverse employment action" as that term is used in
Title VII, see Rivera-Jiménez, 362 F.3d at 94. Moreover, we had
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held that even "relatively minor events" can give rise to liability
for retaliation under § 1983, see id., and that a campaign of
harassment can support a First Amendment retaliation claim if the
harassment would deter a reasonably hardy individual in the
exercise of his or her First Amendment rights, see, e.g.,
Rosario-Urdaz, 433 F.3d at 179; Agosto-de-Feliciano, 889 F.2d at
1217.
Given the facts of this case, however, we need not decide
whether Clancy's conduct amounted to unconstitutional retaliation
based on these established principles. Rather, because we
conclude that Clancy lacked "fair warning that his particular
conduct was unconstitutional," Maldonado, 568 F.3d at 269, we hold
that Clancy is entitled to qualified immunity.20
For the most part, Clancy's statements consisted of
substantively appropriate speech criticizing the decision to hire
Barton as a city-employed coach while he was receiving a disability
pension from the City. In his letters, Clancy invoked "the
financial interests of the City of Lynn" and "the skyrocketing
increases in pension costs" that were "put[ting] a strain on
municipal budgets and the City of Lynn's tax rate." He also asked
to review public documents related to Barton's pension and payment
of taxes.
20
To be clear, aside from this holding, we are not intimating
anything about the constitutionality of Clancy's conduct.
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In essence, Clancy instigated a public controversy about
an unusual hiring decision that had larger policy implications.
Given Clancy's focus on that decision, the legitimate fiscal-
responsibility thrust of his commentary, and the limited nature of
his records inquiry, it is far from clear that Clancy's actions
were sufficiently oppressive to chill the speech of a reasonably
hardy individual. In these particular circumstances, we cannot say
that a reasonable official in Clancy's "shoes 'would have
understood that his conduct violated the Plaintiff['s]
constitutional rights.'" Raiche v. Pietroski, 623 F.3d 30, 36 (1st
Cir. 2010) (quoting Maldonado, 568 F.3d at 269) (alteration in
original). Accordingly, Clancy is entitled to qualified immunity
on Barton's retaliation claim.
IV.
For the reasons expressed in this opinion, the district
court's grant of summary judgment is affirmed. The parties shall
bear their own costs on appeal.
So ordered.
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Barton v. Clancy
Court: Court of Appeals for the First Circuit
Date filed: 2011-01-14
Citations: 632 F.3d 9
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