United States Court of Appeals
For the First Circuit
No. 02-1495
MURPHY A. LEWIS,
Plaintiff, Appellant,
v.
CITY OF BOSTON,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Lipez, Circuit Judge,
Coffin and Stahl, Senior Circuit Judges.
Ozell Hudson, Jr., with whom Anthony W. Neal, was on brief,
for appellant.
James M. Chernetsky, Assistant Corporation Counsel, for
appellee.
January 28, 2003
STAHL, Senior Circuit Judge. Plaintiff-appellant Murphy
A. Lewis ("Lewis") brought this action against the City of Boston
("City"), claiming that the City first discharged him and then
failed to hire him for a newly created position because of his race
in violation of Mass. Gen. Laws ch. 151B, § 4(1) and because of his
public statements regarding inadequate funding for the City’s music
programs in violation of the First Amendment. The district court
granted summary judgment in the City's favor. We affirm.
I
Lewis, an African-American male, has been employed by the
City in the Boston Public Schools ("BPS") from 1975 through the
present, and served as city-wide Music Director from 1995 through
August 1999. The City initially employed Lewis as a music
instructor from 1975 to August 18, 1995, at which time the City
appointed him as acting Music Director; on January 15, 1998, the
City appointed him as permanent Music Director. As Music Director,
Lewis was responsible for implementing and developing policy
relating to music education, overseeing music curriculum
development, supporting ninety-two music teachers, conducting
inventories of musical instruments, organizing the Martin Luther
King, Jr. celebration, and serving as liaison between the BPS and
various music organizations in the City.
The Music Director was one of ten Senior Program
Directors in the Department of Curriculum and Instructional
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Practices ("Curriculum Department"), all of whom reported to the
Director of the Department, Sid Smith ("Smith"), a white male.
Smith reported directly to Timothy Knowles ("Knowles"), Deputy
Superintendent for Teaching and Learning. In 1999, of these ten
directors, four were African-American, one was Asian, and five were
white.
During his tenure as Music Director, Lewis was a public
advocate for increased funding for music education, particularly
instrumental music instruction.1 In a November 25, 1997 article,
the Boston Herald reported that Lewis desired to expand
instrumental music instruction and that to do so he proposed hiring
new music instructors to travel among elementary and middle
schools. Sometime in 1998, Lewis reduced this proposal to writing
and shared it with a City Councilor. The proposal stressed that
the City was in noncompliance with its own Arts Policy by not
offering instrumental music instruction. To come within
compliance, the proposal recommended that the City hire twenty new
teachers at an approximate cost of $1,000,000, as part of a revived
Itinerant Music Program. Lewis did not speak to his supervisors
before sharing his written proposal with the City Councilor.
According to Lewis, shortly thereafter, Smith told Lewis that the
Superintendent, Thomas Payzant, was very upset with Lewis for
1
By 1995, except in a few schools, the BPS had eliminated
instrumental music instruction. In lieu of such instruction, the
City offered music appreciation, singing, and rhythm.
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speaking to the City Councilor.2 Smith also testified that he
expressed his concern that Lewis should think about whether he was
violating established protocol by talking to city council members
about budget-related matters without first consulting Payzant.
Lewis was also quoted in a February 1, 1999 Boston Globe
article. The City's press office had directed the Boston Globe
reporter to Lewis. The article reported that instruments lay
dormant in a warehouse, many of which had "rotted in the eight
years since funding for instrumental music instruction was
eliminated from the city's school budget." The article did not
reveal, and Lewis did not know, the source of this information.
Lewis was quoted as stating that the school system was trying to
inform teachers of the existence and location of the instruments.
The article also discussed Lewis's desire to revive the Itinerant
Music Program. Lewis discussed the article with Smith and Payzant,
and neither of them expressed any negative comments. In March
1999, with Payzant present, Lewis addressed a City Council hearing,
discussing the need for greater funding for music programs.
In late spring of 1999, the City instituted a system-wide
reduction in force to fund transition programs3 in literacy and
2
The district court ruled that the statement was not hearsay
based on an agency theory under Fed. R. Evid. 801(d)(2)(D).
Because the City does not challenge that ruling, we will consider
the statement.
3
Transition programs provided additional support to students
who were furthest behind and were not eligible for promotion.
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mathematics, and to prepare students for the impending
Massachusetts Comprehensive Assessment System tests ("MCAS").
Smith decided, with the approval of Knowles and Payzant, to
eliminate the Music Director position and to spread Lewis's duties
to other positions. The reorganization contemplated the creation
of a new position, which consolidated the bulk of the Music
Director duties with the day-to-day school responsibilities held by
the Director of the Roland Hayes Division of Music4, who would
report directly to Knowles, rather than to Smith, as Lewis did.
The Arts Director would assume the remaining responsibilities. By
letter dated May 14, 1999, Payzant notified Lewis that the City was
eliminating his position due to budget cuts. In addition to
eliminating Lewis's position, the City terminated thirty-one other
relatively high-level, supervisory employees.
The City posted the revised Roland Hayes position three
times. Qualified candidates were required to have a master's
degree and school-based management experience. The City formed a
screening committee that reviewed applications and selected
qualified candidates for interviews. A diverse group, the
screening committee consisted of three African-Americans, one
Hispanic, and one white. Although Lewis did not have a master's
4
Roland Hayes Division of Music, located at Madison High
School, was the City's single magnet school for music. In January,
1999, the Director of Roland Hayes, Robert Winfrey, retired. Greg
Gozzola, a white teacher at Roland Hayes, temporarily assumed
Winfrey's duties.
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degree, he applied for the position, but was not selected for an
interview. Instead, the City selected four candidates for
interviews, including three African-Americans, all with the
requisite master's degree and school-based management experience.
The City did not hire any of the candidates, re-posted the
position, and decided to keep Greg Gozzola, the teacher who had
been filling in for Winfrey, as acting Director of Roland Hayes for
the following academic year. Some of the district-wide
responsibilities formerly held by Lewis were assumed by the Arts
Director, Kathy Tosolini ("Tosolini"), a white female, and the
remainder, such as the Martin Luther King, Jr. celebration, were
assumed by other employees.
In 2000, the City re-posted the position, but reduced the
district-wide responsibilities; Tosolini and others continued to
cover those functions. Even though Lewis still did not have a
master's degree,5 the City mailed to him a written invitation to
interview and called him to confirm on the morning it was
scheduled. Lewis failed to appear for the interview, claiming that
he never received the invitation and that by the time he received
the call, he had a prior commitment. His interview was not
rescheduled. Ultimately, the City offered the position to an
African-American, but he declined. The position was re-posted, and
5
Lewis received his master's degree on June 10, 2001.
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remained unfilled at the time of the district court's summary
judgment ruling.
II
Lewis filed this civil suit against the City, alleging
that, by eliminating his position and failing to hire him for the
Roland Hayes position, the City retaliated against him for his
public statements in violation of the First Amendment and because
of his race in violation of Mass. Gen. Laws. ch. 151B, § 4. The
district court granted summary judgment in favor of the City,
finding that Lewis had adduced insufficient facts to support either
claim.
III
We review the district court's grant of summary judgment
de novo, viewing the facts in the light most favorable to Lewis,
the nonmoving party, and drawing all reasonable inferences in his
favor. Feliciano De La Cruz v. El Conquistador Resort & Country
Club, 218 F.3d 1, 5 (1st Cir. 2000).
A. Mass. Gen. Laws ch. 151B, § 4(1)
To prevail on his chapter 151B claim, Lewis must prove
that he "is a member of a protected class, [he] suffered harm as a
result of [the City's] adverse employment action, and the [City]
harbored discriminatory animus, which was the determinative cause
of the adverse action." Weber v. Community Teamwork, Inc., 434
Mass. 761, 775, 752 N.E.2d 700 (2001). Because Lewis relies upon
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circumstantial evidence of discrimination, we employ a familiar
three-stage, burden-shifting paradigm first set out in McDonnell-
Douglas Corp. v. Green, 411 U.S. 792 (1973). Abramian v. President
& Fellows of Harvard Coll., 432 Mass. 107, 116-18, 731 N.E.2d 1075
(2000). Lewis bears the initial burden of establishing a prima
facie case of discrimination; doing so creates a presumption of
discrimination. Id. at 116. The burden then shifts to the City to
rebut the presumption by advancing a legitimate, nondiscriminatory
reason for the employment decision. The City’s obligation is one
of production as opposed to persuasion, as the burden of persuasion
remains with Lewis. Id. at 117. If the City meets its burden, the
presumption of discrimination disappears. The burden returns to
Lewis to establish that the basis of the City's decisions was
unlawful discrimination, by adducing evidence that the reasons
given by the City for its actions were mere pretexts to hide such
discrimination. Id. at 118.
1. Elimination of the Music Director
We first decide whether Lewis established a prima facie
case, mindful that the purpose of doing so is to eliminate the
"most common nondiscriminatory reasons" for an employment decision,
from which a fact finder might reasonably conclude that the
employer made its decision because of race. Id. at 116. As Lewis
was terminated as part of a district-wide reduction in force, he
must show by a preponderance of the evidence that (1) he was a
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member of a protected class under chapter 151B; (2) he performed
his job satisfactorily; (3) he was terminated; and (4) the City did
not treat race neutrally in making its decision to terminate him or
retained personnel outside of his protected class in the same
position. LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842 (1st Cir.
1993); cf. Wheatley v. Am. Tel. & Tel. Co., 418 Mass. 394, 397, 636
N.E.2d 265 (1994) ("It is our practice to apply Federal case law
construing the Federal anti-discrimination statutes in interpreting
G.L. c. 151B.").6
It is undisputed that Lewis has established the first
three elements; the battleground then is in the fourth prong. On
appeal, for the first time, Lewis attempts to demonstrate that the
City did not treat race neutrally in deciding whom to terminate by
arguing that the lay-offs were statistically out of line with the
overall racial makeup of the BPS workforce. See, e.g., Lipchitz v.
Raytheon Co., 434 Mass. 493, 508-09, 751 N.E.2d 360 (2001) (holding
that statistical evidence may support an inference that a
particular decision was made because of discriminatory animus);
Smith College v. MCAD, 376 Mass. 221, 228 n.9, 380 N.E.2d 121
6
The fourth prong is slightly different in the non-reduction
in force setting. In that context, the fourth prong requires that
the employee establish that "his employer sought to fill the
plaintiff's position by hiring another individual with
qualifications similar to the plaintiff's. . . ." Abramian, 432
Mass. at 116, 731 N.E.2d 1075. In the typical reduction of force
case, however, the fourth prong is unworkable because the
plaintiff’s position no longer exists.
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(1978) ("In a proper case, gross statistical disparities alone may
constitute prima facie proof of a practice of discrimination.").
Because Lewis failed to raise this theory below, we deem it
forfeited.7 Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d
252, 258 (1st Cir. 1999) ("[A]lthough the court of appeals affords
de novo review to orders granting summary judgment, it will not
reverse such an order on the basis of arguments [or theories] that
were not made in the trial court."); Utica Mutual Ins. Co. v.
Weathermark Investments, Inc., 292 F.3d 77, 80-82 (1st Cir. 2002);
see generally, Wright & Miller, supra note 7, § 2716, at 282.
Lewis also contends that "only black Senior Program
Directors were laid off," from which a jury could infer that the
City targeted him because of race. But Lewis was the only Senior
Program Director in the Curriculum Department to be terminated; the
remaining three African-American Senior Program Directors retained
7
Even if we were to consider the argument, we would find the
record devoid of any evidence revealing a gross statistical
disparity. Lewis attempts to present the demographic makeup of the
BPS workforce through factual representations in a footnote to his
appellate brief. It is elementary, however, that we review the
record as it existed at the time the district court rendered its
ruling, Crawford v. Lamantia, 34 F.3d 28, 31 (1st Cir. 1994); 10A
Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice & Procedure § 2716, at 282 (3d ed. 1998); cf. Fed. R. App.
P. 10(a) (West 2002) (setting forth the composition of the record
for appeal), and we disregard factual assertions made in briefs and
other self-serving documents that are not otherwise supported by
competent evidence as required by Rule 56(e), Vivid Tech., Inc. v.
Am. Sci. & Eng'g, Inc., 200 F.3d 795, 812 (1st Cir. 1999); Nieves
v. Univ. of Puerto Rico, 7 F.3d 270, 276 n.9 (1st Cir. 1993);
Wright & Miller, supra, § 2723, at 389-90.
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their positions. We fail to see how a jury could reasonably infer
that the City targeted Lewis due to his race merely because he was
the one Senior Program Director, out of ten, who was terminated.
Cf. LeBlanc, 6 F.3d at 844 ("We . . . question whether a company
can be said not to treat age neutrally as a matter of law merely
because two of the three people it discharges pursuant to a
reduction in force belong to the protected class. A sample of
three is a small number from which to draw deductions of this
sort.").
Lewis also relies on the City's retention of the other
Senior Program Directors who were not in his protected class.8
Lewis points to no convincing evidence that shows how the positions
held by the other directors may reasonably be considered the same
as the position that Lewis held. Lewis himself testified that
"there's no comparable position" to his former position, unless the
City were "to make a position [of] Director of Fine Arts, . . .
but--right now, that position doesn't exist . . . ." In any event,
the record emphasizes the differences, not the similarities,
between the positions. Each Senior Program Director was
responsible for a specific academic discipline: English, which
included two directors (one for elementary and one for secondary
8
Lewis's brief states that "all the other Senior Program
Directors . . . were not in Lewis's protected class" and that all
were retained. This is a misstatement of the record, as three of
the other directors were African-American.
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education), math, science, history, world languages, music, art,
physical education, and health. The duties and responsibilities of
each of the directors were defined by the specific academic
discipline to which they were assigned. Within an assigned
discipline, the director established and implemented performance
standards, curriculum guidelines, and professional development
programs, and supported teachers throughout the BPS. Smith also
testified, uncontroverted by Lewis, that the City disregards
seniority when instituting a reduction in force within the
Curriculum Department because the City does not view the Senior
Program Director positions as being of similar character.
Lewis makes much of the fact that the Arts and Music
Director positions had the same personnel grade and salary and were
listed on a single job posting. Although true, Lewis ignores
significant differences. The Arts Director covered three subject
areas: visual arts, theater, and dance. Among other things, she
supported 151 art teachers, established and implemented the Arts
and Education Policy for the BPS, coordinated programs with the
Museum of Fine Arts, and coordinated after-school and other
programs not coordinated by the Music Director. On this record, no
fact finder could reasonably conclude that any of the other
directors were in the same position as Lewis.
Relying upon Flebotte v. Dow Jones & Co., 51 F. Supp.2d
36, 40 (D. Mass. 1999), Lewis attempts to avoid our inevitable
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conclusion by asserting that the City's delegation of his duties to
other individuals not in his protected class amounted to retaining
individuals in the same position. We disagree. The purpose of the
prima facie case is to identify those circumstances where the
employer’s actions, if left unexplained, are more likely than not
based on unlawful discrimination. In the typical reduction in
force case, the employer's actions have already been explained, as
the reduction in force is itself a legitimate, nondiscriminatory
reason for the lay-offs. And as recognized by the district court,
"in a reduction in force situation, a company generally reorganizes
its workforce and reassigns responsibilities to reduce headcount
and save money." Lewis v. City of Boston, No. CIV. A. 00-11548,
2002 WL 523910, at *5 (D. Mass. March 29, 2002). Merely
demonstrating that, as a result of the reduction in force, the
employer consolidated positions or allocated duties of discharged
employees to other existing employees does not itself raise a
reasonable inference that the employer harbored discriminatory
animus toward any one employee. Accepting Lewis's argument "would
render meaningless the fourth requirement of the prima facie case"
under LeBlanc. Id. We are careful not to suggest, however, that
an employer may mask unlawful discrimination by simply transferring
all of an employee's duties to another employee during a reduction
in force. Rather, we are saying that the employee must come
forward with something more than evidence of the inevitable
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transfer of his or her responsibilities to existing employees.
This Lewis has failed to do.9
Finally, Lewis for the first time contends that his
position was not, in fact, eliminated, reasoning that the duties of
the Roland Hayes Director were merely added to the position he
formerly held. This argument is unavailing. The evidence in the
record, adduced by both the City and Lewis, leaves beyond question
that the City eliminated the Music Director position from the
Curriculum Department and consolidated the duties of that position
with that of the former Roland Hayes Director and the Arts
Director. There simply is no genuine issue of material fact as to
whether his position was eliminated. We hold therefore that Lewis
failed to establish a prima facie case of racial discrimination.
Even if we were to assume arguendo that Lewis satisfied
his prima facie burden, we would still affirm. The City proffered
a number of legitimate reasons why it chose Lewis's position for
elimination during its search for additional funds for transition
programs in literacy and mathematics and to prepare students for
the MCAS tests. Smith, who made the decision, testified that the
Music Director position was the natural candidate for elimination
9
Of course, an employee is free to establish that the
reduction in force is itself a sham. Lewis, however, does not
challenge the legitimacy of the City's system-wide reduction in
force; indeed, at oral argument, he agreed that the City undertook
the reduction in force, in part, to focus more resources to prepare
students for the impending MCAS tests.
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in his Department because music was not a priority subject area10;
aside from English, the Arts was the only subject area that had two
Senior Program Directors; and the duties of the Music Director
could be easily transferred to the Arts Director and the Roland
Hayes position, which would result in one less person doing the
work. In addition, transferring district-wide duties to the Roland
Hayes position and creating a new Director position that was under
the supervision of the Deputy Superintendent would achieve the
City's goal of raising the status and visibility of the Roland
Hayes position. The City's reasons sufficiently dispel any taint
of racial discrimination.
Beyond the thin evidence Lewis relies upon to satisfy his
prima facie case, Lewis presented no evidence to support a
reasonable inference that any of the reasons given by the City were
false. That evidence does not by itself even suggest that the
reasons advanced by the City were a pretext for discrimination.
The City's decision to discharge Lewis is not actionable under
chapter 151B.
2. Failure to hire for the Roland Hayes position
Again, Lewis relies on indirect evidence of racial
discrimination. To establish a prima facie case, Lewis must
establish that (1) he is a member of a protected class under 151B;
10
The MCAS tests covered English, mathematics, history,
science, and world languages.
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(2) he applied for an open position; (3) he was not hired; and (4)
the City sought to fill the position with individuals who had
qualifications similar to his. Wynn & Wynn v. MCAD, 431 Mass. 655,
666 n.22, 729 N.E.2d 1068 (2000). The district court held that
Lewis failed to establish a prima facie case because he was not
qualified, as he lacked a master's degree and school-based
management experience. Lewis responds that there exists a genuine
issue as to whether he was qualified, pointing out that the City
appointed him as Music Director in 1995, which required a master's
degree, and invited him to interview for the second posting, even
though the qualifications for the position had not changed and he
still did not have a master's degree. We will assume, without
deciding, that Lewis has satisfied his prima facie burden, and turn
to the second stage of the McDonnell-Douglas paradigm.
We think it important to review each posting separately,
not only because Lewis raises distinct challenges to each of them,
but also because doing so exposes the lack of substance to his
claims. Lewis does not challenge the first committee's decision
not to select him, conceding at oral argument that the first
selection committee, which included three African-Americans, did
not discriminate against him based upon his race. Instead, Lewis
contends that the City, because of his race, stacked that committee
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with two members, Winfrey and Ruth Howe11, both African-Americans,
who it knew were biased against him and would not select him. This
is mere conjecture. Although there is evidence that Smith,
Knowles, and Payzant knew that Lewis and Winfrey had conflicts in
the past over Roland Hayes,12 not one of them selected the committee
members. The committee members were selected by the Deputy
Superintendent, Amalle Cudiero Nelson, who also chaired the first
committee. Not only has Lewis failed to present any evidence that
Nelson knew that any of the members of the committee were biased
against him, but, more significantly, he has also failed to show
that Nelson otherwise, because of his race, stacked the committee
against him. Given Lewis's concession that the committee did not
discriminate against him due to his race, we will proceed to the
second posting.
We need not dwell at length on the second posting as we
find that Lewis has failed to adduce any evidence even suggesting
that he was not hired due to his race. The City adduced ample
evidence that Lewis took himself out of contention for the
position: it is uncontested that Lewis failed to appear for the
11
Howe was a member of the Friends of Roland Hayes, which was
an outside advocacy group for Roland Hayes Division of Music.
12
As to Ruth Howe, there is absolutely no record support for
the assertion that she was somehow biased against Lewis. Lewis
invites us to speculate that because she was, at the time, a member
of the Friends of Roland Hayes, she was biased against him. We
decline the invitation.
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scheduled interview. Nevertheless, Lewis points out that after
failing to show for the scheduled interview, he sent a facsimile to
the City's Human Resources Director, with a copy to Knowles,
requesting that the interview be rescheduled. While the Director
did not reschedule, there is absolutely no evidence remotely
suggesting that the City, through its Human Resources Director,
failed to reschedule his interview because of his race. In any
event, even more telling of a lack of discriminatory animus, the
City offered the position to an African-American, a person in
Lewis's protected class. Based on this record, a jury could not
reasonably conclude that the City failed to hire him because of his
race.13
B. First Amendment
Lewis also claims that the City deprived him of his First
Amendment rights, in violation of 42 U.S.C. § 1983,14 by retaliating
against him for his statements to the press in 1997 and 1999 and to
13
The position was re-posted and remained open at the time of
the district court's rulings. In his appellate brief, Lewis's
counsel alleges that Lewis was not hired after the third posting
even though he had a master's degree. These facts are not properly
before us, see supra note 7, and in any event, there is no evidence
in the record providing the details of the hiring process from
which an inference of discriminatory animus may be properly drawn.
14
Lewis also based his claim on the Massachusetts Civil Rights
Act ("MCRA"), Mass. Gen. Laws ch. 12, § 11H-I. Lewis does not
appeal the district court’s ruling that the City could not be held
liable under MCRA because the City is not a "person" for purposes
of the Act.
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members of the City Council in 1998 and 1999.15 To prevail on his
claim, as a public employee, Lewis must establish that (1) his
expression involved matters of public concern; (2) his interest in
commenting upon those matters outweighed the City’s interests in
the efficient performance of its public services; and (3) his
protected speech was a substantial or motivating factor in the
City’s adverse employment actions. Mullin v. Town of Fairhaven,
284 F.3d 31, 37-38 (1st Cir. 2002) (citing Connick v. Myers, 461
U.S. 138, 147-48 (1983); Mt. Healthy City Sch. Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274 (1977); Pickering v. Bd. of Educ., 391 U.S.
563 (1968)); Nethersole v. Bulger, 87 F.3d 15, 18 (1st Cir. 2002).
The first two prongs are questions of law and thus are subject to
de novo review, whereas the third prong is generally for the fact
finder to decide. Nethersole, 287 F.3d at 19; O'Connor v. Steeves,
994 F.2d 905, 913 (1st Cir. 1993). If Lewis succeeds in
establishing a prima facie case, the burden of persuasion shifts to
15
We uphold the district court’s ruling, unchallenged by the
City, that Lewis could bring his First Amendment claim under
§ 1983, even though Lewis failed to name individual defendants in
their personal capacity. The trial court found that the City’s
"decision was made as part of the budgetary process and constituted
a deliberate policy determination with respect to the structure of
the music education program in the public schools," and thus the
City, through its policy makers--Payzant, Knowles, and Smith, was
the "moving force behind the decision." Lewis v. City of Boston,
No. CIV. A. 00-11548, 2002 WL 523910, at *10 (D. Mass. March 29,
2002) (citing Bd. Of County Comm’rs of Bryan County v. Brown, 520
U.S. 397, 404 (1997); City of Canton v. Harris, 489 U.S. 378, 389
(1989); Monell v. New York Dep't of Soc. Services, 436 U.S. 658,
694 (1978)).
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the City to prove by a preponderance of the evidence that Lewis's
position would have been eliminated "even in the absence of the
protected conduct." Mt. Healthy, 429 U.S. at 287.
The City does not challenge the district court’s ruling
in favor of Lewis on the first two prongs; we therefore proceed to
the third prong. Lewis is not required to come forward with direct
evidence (the so-called smoking gun) that his speech was a
substantial or motivating factor, but rather, as in other contexts
where motivation is an issue, he can rely upon circumstantial
evidence. Having considered the briefs and thoroughly reviewed the
entire record, we agree with the district court that Lewis failed
to adduce any evidence suggesting that his speech played a
substantial or motivating role in the City's decisions.
To establish the essential nexus, Lewis stresses the
temporal proximity between his public statements to the press and
to City Council members and the City's decision to eliminate his
position. Lewis also notes that Smith told him that Payzant was
very upset after Lewis shared his proposal with a City Councilor in
1998. From these facts, Lewis believes that a jury could conclude
that his speech was a substantial or motivating factor in the
City's decision. We disagree.
Although "'close temporal proximity between two events
may give rise to an inference of causal connection,'" Nethersole,
287 F.3d at 20 (emphasis added) (quoting Hodgens v. Gen. Dynamics
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Corp., 144 F.3d 151, 168 (1st Cir. 1998)), that inference is "not
necessarily conclusive" where, as in this case, the inference is
considerably weakened by other facts in the record, Hodgens, 144
F.3d at 170. Here, Lewis started his public advocacy for more
funding for music programs in 1997, over a year and a half before
he was terminated, a fact that seriously undermines his temporal
proximity argument.16 Moreover, after reviewing Lewis's public
statements, we doubt that a fact finder could reasonably conclude
that they were in any way critical of the City or its supervisors;
Lewis merely commented on the need for more funding and his desire
to revive instrumental music instruction. In any event, we find no
evidence that any of his supervisors, including Smith, who made the
decision to eliminate Lewis's position, were anything but
supportive of his comments. After his statements appeared in the
16
Facing this problem before the district court, Lewis argued
that the relevant time period on which the court should focus is
the spring of 1999, when the level of public interest about funding
of music and arts programs was high. Lewis attempts a different
course on appeal, alleging that the causal link between his 1997
statements in the Boston Herald and the decision to terminate him
remained unbroken, as the City engaged in retaliatory actions by no
longer sending him communications regarding music, excluding him
from the Arts Policy Committee, denying him an adequate budget, and
failing to adequately respond to interferences with his workspace
by other employees. The record demonstrates that Lewis believed
that, aside from failing to rectify his workspace complaints, the
City, because of Lewis's race, engaged in the other so-called
retaliatory actions since 1995. As to the City's failure to
respond to his workspace complaints, we seriously doubt whether it
constitutes a sufficient adverse employment action for First
Amendment purposes; but even if it does, we find no evidence
linking his 1997 statements to the City's lack of response to his
complaints.
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1997 Boston Herald, the City promoted Lewis from acting to
permanent Music Director, encouraged him to start a parent advocacy
group, and assisted him in gaining access to the musical
instruments at Roland Hayes. Indeed, Lewis testified that he
discussed the Boston Globe article with Payzant because, at the
time, Payzant was assisting Lewis in distributing instruments
throughout the City, the goal that Lewis was quoted as trying to
achieve. And it was the City, through its press office, that
directed the Boston Globe reporter to Lewis.
Even more significant, the inference carried by the
temporal proximity between his statements in 1999 and the decision
to terminate him dissipates when consideration is given to the
attendant circumstances. The City adduced ample evidence that
Lewis's position was eliminated along with thirty-one others during
a reduction in force resulting from the impending MCAS tests.
Lewis presented no credible evidence demonstrating that the reasons
advanced by the City were pretexts from which a fact finder could
infer discriminatory animus.
We are also unconvinced that Smith's alleged statement
that Payzant was very upset sufficiently links Lewis's protected
activity to the decision to terminate him. The record evidence
does not suggest that Smith, the person who decided to eliminate
the position, shared Payzant's claimed view or that he was
concerned with anything beyond protocol.
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Even were we to assume that Lewis met his prima facie
burden on such thin circumstantial evidence, he could not avoid
summary judgment because the City sufficiently established the Mt.
Healthy defense. We find that the City demonstrated by a
preponderance of the evidence that it would have reached the same
decision regardless of Lewis's speech. Lewis failed to present
evidence, direct or circumstantial, to refute even one of the
reasons given by the City. It would be pure conjecture to conclude
that the City would have made a different decision in the absence
of Lewis's comments.
IV
Having found that Lewis has failed to meet his burden of
adducing sufficient facts to survive a motion of summary judgment
on both his First Amendment and Chapter 151B claims, we affirm.
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