United States Court of Appeals
For the First Circuit
No. 03-1444
GERALD FABIANO,
Plaintiff, Appellant,
v.
MERITA A. HOPKINS; KEVIN J. JOYCE; CITY OF BOSTON,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Howard, Circuit Judge,
Campbell, Senior Circuit Judge,
and Stahl, Senior Circuit Judge.
Gerald Fabiano, pro se, for appellant.
Christine M. Roach, with whom Roach & Carpenter, P.C., was on
brief for appellees.
December 9, 2003
STAHL, Senior Circuit Judge. Pro se plaintiff-appellant
Gerald Fabiano appeals from the district court's judgment in favor
of his former employer, the Corporation Counsel's office of the
defendant-appellee City of Boston. Fabiano asserts that he was
unlawfully terminated in retaliation for filing a lawsuit in state
court against the City of Boston Zoning Board of Appeal, which was
the Corporation Counsel's client. The district court awarded
summary judgment to the City and the individual defendant-
appellees, holding that as a matter of law, Fabiano's termination
did not violate the First Amendment. We affirm the judgment below,
albeit on different grounds than those set forth by the district
court.
I. Background
We present the facts in the light most favorable to Fabiano,
as the party opposing summary judgment. See Sparks v. Fidelity
Nat'l Title Ins. Co., 294 F.3d 259, 265 (1st Cir. 2002). In June
1994, Fabiano was appointed Assistant Corporation Counsel for the
City. He served as a senior litigation lawyer in the Government
Affairs Division and was an at-will employee. Defendant-appellee
Kevin J. Joyce, the Director of Government Affairs, was Fabiano's
immediate supervisor from December 1995 until his termination.
Defendant-appellee Merita A. Hopkins was the Corporation Counsel.
During late 1996 and early 1997, Hopkins received reports from
Joyce and another manager expressing concerns about Fabiano's case
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management skills, particularly with respect to his approach to
settlement. In June, 1997, these concerns were discussed at a
meeting attended by Fabiano and Hopkins.
In January, 1998, Fabiano informed Joyce that he had initiated
a pro se action appealing a decision of the City of Boston Zoning
Board of Appeal ("Zoning Board") to the Superior Court. The
Government Affairs Division represents the Zoning Board on appeals,
and Fabiano had personally worked on two such cases during his
tenure.
In Fabiano's pro se appeal, he challenged the renewal of a
zoning variance for a restaurant located one hundred feet from real
estate in which he had an ownership interest.1 Fabiano contended
that a variance had never been initially granted, and that the
renewal, issued in error, permitted a sit-down restaurant to
provide take-out services, thus diminishing the limited parking
supply on his residential street. Plaintiff's mother, who owned a
different abutting property, joined him in the action. Like
Fabiano, she represented herself.
When Fabiano notified Joyce of the litigation, Joyce
immediately responded that his action in taking the appeal
presented a conflict of interest and strongly advised Fabiano to
1
After investigation, defendants learned that Fabiano had not
become one of the record owners of the property until after the
original zoning decision had been made, just prior to the running
of the appeals period.
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retain separate counsel. In the district court, Joyce testified
that Fabiano told him that he was representing himself and family
members, while Fabiano claimed he told Joyce he was only
representing himself.2 According to Fabiano, Joyce angrily told
Fabiano that he had to pick which side he was on and said that the
litigation violated Mass. Gen. L. ch. 268A, the state ethics law.
Notwithstanding the strong reaction of Joyce, Fabiano did not
seek permission for self-representation or procure outside counsel.
He believed that under the conflict of interest policy governing
situations in which an employee acts on his own behalf, his action
was permissible.
The matter was reported to Hopkins, who was told (apparently
incorrectly) that Fabiano was representing his family as well as
himself in the action. After consulting with outside counsel,
Hopkins came to believe that Fabiano's actions were "potentially in
violation of state law, as well as state ethical rules governing
the practice of attorneys."
For a few months after Fabiano filed the Zoning Board action,
Joyce regularly asked Fabiano about his trial schedule, something
that he had never done before. On May 22, 1998, shortly after
Fabiano reported that he had no trials scheduled, Hopkins
2
Fabiano's complaint in the Zoning Board action indicates that
he and his mother signed the document separately, each pro se.
Fabiano did not list his Board of Bar Overseers number on his
signature line.
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terminated his employment. She did this while holding a copy of
the Zoning Board complaint in her hand, telling Fabiano that she
lacked confidence in his judgment and was dismayed that he had not
consulted state statutes, the Board of Bar Overseers, the State
Ethics Commission, or any manager before entering his appearance
against the City.
Hopkins contended that she did not fire Fabiano for suing the
City, but rather for his failure to follow city policy with respect
to written disclosure and prior written approval of his lawsuit, as
well as "his inability or unwillingness to acknowledge the serious
professional, ethical and practical problems created by his
lawsuit." She stated that the Zoning Board lawsuit was merely one
more example of poor judgment with respect to his caseload.
After investigation, the City acknowledged that the variance
decision had resulted from "inadvertent clerical error." Joyce
answered and handled the matter on behalf of the City. On February
18, 1999, the zoning appeal was resolved in favor of Fabiano and
his mother by agreed judgment.
In December 2001, Fabiano filed a complaint in the
Massachusetts Superior Court asserting First Amendment claims
against each defendant pursuant to 42 U.S.C. § 1983 as well as
common law state claims. Defendants removed the case to federal
court.
After a hearing, the district court allowed the defendants'
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motion for summary judgment with respect to the First Amendment
claims, and remanded the state claims to state court. Fabiano v.
Hopkins, 245 F. Supp.2d 305, 312 (D. Mass. 2003). The district
court held that Fabiano's litigation pertained to a matter of
public concern "in only a most limited sense." Id. at 311 (quoting
Connick v. Myers, 461 U.S. 138, 154 (1983)). Even if Fabiano's
conduct were protected by the First Amendment, the court continued,
the constitutional concern was outweighed by "the valid workplace
concern of the Corporation Counsel that Fabiano should have
consulted with his supervisor before initiating this litigation,
and sought to minimize any actual conflicts or appearance of
conflicts." Id. at 312. This appeal followed.
II. Discussion
Summary judgment is proper if the pleadings, depositions,
answers to interrogatories, and admissions on file show that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. Rosenberg v.
City of Everett, 328 F.3d 12, 17 (1st Cir. 2003) (citing Fed. R.
Civ. P. 56(c) (2003)). We review the district court's award of
summary judgment de novo, construing the record in the light most
favorable to Fabiano and resolving all reasonable inferences in his
favor. Id.
We may affirm the district court's entry of summary judgment
on any ground revealed by the record. Houlton Citizens' Coalition
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v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999). Although
the district court ruled only on the merits of Fabiano's First
Amendment claims, we take a somewhat different approach, holding
that neither the City of Boston nor the individual defendants may
be liable pursuant to 42 U.S.C. § 1983.
A. Municipal liability pursuant to 42 U.S.C. § 1983
In an action pursuant to 42 U.S.C. § 1983, there can be no
municipal liability under a respondeat superior theory. Monell v.
Dept. of Soc. Servs., 436 U.S. 658, 690-95 (1978). Rather, to
establish liability against the City, Fabiano must prove
deprivation of a constitutional right by means of "the execution of
the government's policy or custom." City of Canton v. Harris, 489
U.S. 378, 385 (1989); see also Monell, 436 U.S. at 690-94.
Hopkins is the relevant policymaker for the purposes of our
§ 1983 analysis, as the decision to terminate Fabiano's employment
ultimately resided with her. Fabiano does not point to any
relevant City "policy" beyond the mere fact that Hopkins decided to
fire him. Nor does he assert that the City has made a well-settled
practice of punishing attorneys who have taken legal action against
it or otherwise exercised their First Amendment rights.3
3
In 1995, another Law Department attorney filed a pro se
zoning appeal, but she apparently suffered no adverse employment
consequences. Moreover, this attorney did not work for the
Government Affairs Division and was not supervised by Hopkins, the
policymaker at issue. Hence, this incident, taken together with
Fabiano's termination, lacks sufficient commonality to form a
pattern or practice.
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Absent evidence of an unconstitutional municipal policy, a
single incident of misconduct cannot provide the basis for
municipal liability under § 1983. Oklahoma City v. Tuttle, 471
U.S. 808, 823-24 (1985). Such a result would be the equivalent of
imposing respondeat superior liability upon the municipality. Id.
Fabiano's termination stands alone as a unique incident of alleged
misconduct and does not, as a matter of law, suffice to ground
§ 1983 liability against the City.
B. Individual liability and qualified immunity
The individual defendants, Hopkins and Joyce, assert an
affirmative defense of qualified immunity. Qualified immunity is
intended to shield public officials "from civil damages liability
as long as their actions could reasonably have been thought
consistent with the rights they are alleged to have violated."
Anderson v. Creighton, 483 U.S. 635, 638 (1987). "Where the
defendant seeks qualified immunity, a ruling on that issue should
be made early in the proceedings so that the costs and expenses of
trial are avoided where the defense is dispositive." Saucier v.
Katz, 533 U.S. 194, 200 (2001).
In assessing this defense, we consider a sequence of
questions: (1) whether the facts as alleged make out a
constitutional violation; (2) whether that right was clearly
established; and (3) whether a similarly situated reasonable
official would have understood that her conduct violated clearly
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established law. Savard v. Rhode Island, 338 F.3d 23, 27 (1st Cir.
2003). We are required to take these questions in this order, as
the development of the law of qualified immunity is best served by
the judicial exposition of the first two inquiries. Saucier, 533
U.S. at 201; see also Dirrane v. Town of Brookline, 315 F.3d 65, 69
(1st Cir. 2002).
1. First Amendment violation
Accordingly, we first consider whether Fabiano's allegations
set forth a First Amendment violation. As an initial matter, every
citizen has the right "to petition the Government for a redress of
grievances." U.S. Const. amend. I. The right of access to the
courts is an established aspect of this right. Bill Johnson's
Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983).
In Mullin v. Town of Fairhaven, 284 F.3d 31, 37-38 (1st Cir.
2002), we recently described the three elements a public employee
must show to prevail on a First Amendment claim against his
employer:
First, we must determine whether the speech at issue
involves "matters of public concern." Connick v. Myers,
461 U.S. 138, 147-48 (1983). If it does not, then its
First Amendment value is low, and a "federal court is not
the appropriate forum in which to review the wisdom" of
internal decisions arising therefrom. Id. at 147.
Second, if the speech does pertain to matters of public
concern, the court must, under the Supreme Court's
decision in [Pickering v. Bd. of Educ., 391 U.S. 563
(1968)], balance the strength of plaintiffs' and the
public's First Amendment interests against "the strength
of the countervailing governmental interest in promoting
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efficient performance of the public service the
government agency or entity must provide through" its
public officials . . .
(internal citations omitted). Third, Fabiano must show that his
protected speech was a substantial or motivating factor in the
City's decision to fire him. See id. at 38; Lewis v. City of
Boston, 321 F.3d 207, 217 (1st Cir. 2003).
a. Matter of public concern
In the first step of this analysis, whether Fabiano's lawsuit
addressed a matter of public concern presents a very close
question. We examine the entire record to assess the content,
form, and context of his speech. See Connick, 461 U.S. at 147-48.
"To presume that all matters which transpire within a government
office are of public concern would mean that virtually every remark
-- and certainly every criticism directed at a public official –-
would plant the seed of a constitutional case." Id. at 149.
In O'Connor v. Steeves, 994 F.2d 905, 913 (1st Cir. 1993), we
noted that the specific factual circumstances of a case govern the
extent to which we delve into a public employee's personal motives
behind his speech. A case in which an employee expresses himself
on a subject that is "clearly a legitimate matter of inherent
concern to the electorate" may not require us to inquire further
into his motives. Id. at 913-14.
On the other hand, public-employee speech on a topic
which would not necessarily qualify, on the basis of its
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content alone, as a matter of inherent public concern
(e.g., internal working conditions, affecting only the
speaker and co-workers), may require a more complete
Connick analysis . . . with a view to whether the
community has in fact manifested a legitimate concern in
the internal workings of the particular agency or
department of government, and, if so, whether the "form"
of the employee's expression suggests a subjective intent
to contribute to any such public discourse.
Id. at 914.
Fabiano contends that because his lawsuit involves zoning, it
is inherently a matter of public concern under O'Connor. We agree
that zoning relates to the public interest in a very broad sense.
See McElderry v. Planning Bd. of Nantucket, 431 Mass. 722, 726, 729
N.E.2d 1090, 1093 (2000) (stating that purpose of zoning law is to
"regulate the use of land to ensure the safety, convenience, and
welfare of the inhabitants of municipalities"); Carstensen v.
Zoning Bd. of Appeals, 11 Mass. App. Ct. 348, 356, 416 N.E.2d 522,
527 (1981) (noting that "the main purpose of zoning is to stabilize
the use of property and to protect an area from deleterious uses .
. .").
To use so broad a standard, however, would sweep nearly every
public act under First Amendment protection. The specific nature
of Fabiano's legal action -- whether a variance was correctly
issued for a take-out restaurant on a residential street -- does
not constitute the type of issue of inherent public concern that
would truncate our analysis under O'Connor. His complaint cannot
be said to engage the public interest on a large scale; it is more
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akin in scope to a public employee speaking out on a workplace
concern. See O'Connor, 994 F.2d at 914; compare with Mullin, 284
F.3d at 915 (holding that employee's whistleblowing concerning
official misconduct by selectmen obviated the need for a threshold
analysis of his dominant motive for speaking out); see also
Brasslett v. Cota, 761 F.2d 827, 844 n.14 (1st Cir. 1985)
(affording no apparent consideration to public employee's motive
where fire chief's public commentary on fire protection plainly
qualified as a matter of inherent public concern).
Accordingly, it is appropriate to inquire into Fabiano's
motives for his Zoning Board lawsuit. We examine the extent to
which Fabiano intended his lawsuit to "contribute to any 'public
discourse,' or if it simply reflected personal or internal . . .
concerns." Mullin, 284 F.3d at 38 (quoting O'Connor, 994 F.2d at
914). We note that Fabiano's "speech" differs in form from the
more conventional expression at issue in the applicable case law,
which involves written or spoken criticisms or complaints about
workplace issues. See, e.g., Connick, 461 U.S. at 147-48; Mullin,
284 F.3d at 39; Alinovi v. Worcester Sch. Comm., 777 F.2d 776, 786-
87 (1st Cir. 1985) (concluding that teacher who posted letters from
school administration in an attempt to bring about a resolution of
her disciplinary problem was motivated by a purely personal issue
and did not implicate matter of public concern). Accordingly, we
construe Fabiano's intent in the fact-specific context of his
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litigation.
There is no doubt that Fabiano's lawsuit was motivated in
large part by self-interest. As the owner of property abutting the
restaurant granted the erroneous variance, he was directly affected
by the renewed variance and the concomitant possibility of
increased traffic. His complaint to the Zoning Board plainly
sought to redress these matters. Indeed, Fabiano would not have
had standing to bring suit had he lacked a personal interest and
particularized harm. See Mass. Gen. Laws ch. 40A, § 16; Green v.
Bd. of Appeals, 404 Mass. 571, 572, 536 N.E.2d 485, 585 (1989).
Nonetheless, we think that Fabiano's Zoning Board lawsuit had
sufficient public dimension to ground a First Amendment claim. The
record supports a conclusion that Fabiano's purpose in filing the
lawsuit, in addition to vindicating his property rights, was to
restore the integrity of the zoning process and remedy parking
congestion. Fabiano and his mother had attempted, before and/or
during their litigation, to point out the breakdown in the variance
process that led to the improper renewal. These efforts ultimately
were successful, resulting in an agreed judgment before the Zoning
Board. Had Fabiano and his mother not acted in a timely matter to
challenge the renewal, the Zoning Board's error would have become
permanent. See Mass. Gen. Laws ch. 40A, § 17 (stating that action
must be brought within twenty days after the decision has been
filed).
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Although this is a very close case, we think the form and
context of Fabiano's expression indicates a subjective intent to
contribute to public discourse. See O'Connor, 994 F.2d at 914.
Hence, we conclude that he has, by a narrow margin, made a
sufficient showing that his lawsuit addressed a matter of public
concern.
b. Pickering balancing
The next step of our analysis of Fabiano's First Amendment
right is to balance the strength of the relevant constitutional
interests against the countervailing governmental interest in
promoting efficient performance of the City's public service. See
Pickering, 391 U.S. at 568. Albeit not an exact science, Pickering
balancing "is necessary in order to accommodate the dual role of
the public employer as a provider of public services and as a
government entity operating under the constraints of the First
Amendment." Rankin v. McPherson, 483 U.S. 378, 384 (1987). This
balancing test is "particularized"; if the plaintiff's
constitutional claim is relatively weak, as here, the government
need show less to counter it. See Connick, 461 U.S. at 150, 152.
The City contends that Fabiano's conduct undermined the
efficient internal workings of the department. Fabiano was a
senior attorney responsible for counseling and representing agency
clients, including the Zoning Board. In that position, he had an
obligation to recognize the sensitive nature of his work. He
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failed to seek advice or advance permission from his superiors to
litigate against one of his clients and rebuffed Joyce's urging to
seek outside counsel. Rather, he proceeded with his lawsuit,
apparently heedless to the possibility of embarrassment to the
Corporation Counsel's office or an appearance of impropriety.
Fabiano's filing of the Zoning Board appeal, as well as his
intransigence vis-a-vis his superiors following its disclosure,
could be reasonably construed as disruptive.
Although the government's concerns are valid, they fall short
of outweighing Fabiano's First Amendment interests in pursuing his
zoning case. First, there is little evidence in the record that
Fabiano's lawsuit disrupted the day-to-day functioning of his
workplace. After Fabiano brought the matter to his supervisor's
attention, defendants continued to employ Fabiano for several
months while he litigated other matters. Until his termination,
Fabiano was unaware of any response to his litigation on the part
of the City other than the filing of an answer to the complaint.
We note also that ultimately there was no adversity between
Fabiano's position and the City's position concerning the variance
at issue. The City eventually admitted that the renewal was issued
improperly and entered an agreed judgment. In that respect,
Fabiano's successful attempt to redress the errors committed by the
Zoning Board apparently did not conflict with the City's mission to
deliver government services. Indeed, Fabiano arguably helped to
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vindicate the public's interest in a fair and just review process.
Cf. O'Connor, 994 F.2d at 916 (stating that a "strong public
interest in disclosures supplemented [plaintiff's] relatively
slight personal interest in speaking out . . . weighting the
Pickering scale in favor of First Amendment protection against
retaliation for [plaintiff's] speech").
Moreover, Fabiano's conduct arguably does not seem to have
violated the City's internal policy as expressed in its publication
Introduction to Conflict of Interest Law for City of Boston
Employees. That manual provides, in relevant part:
Acting on Behalf of Others
While you are a City employee, you may not act as
agent or representative for anyone other than the City in
connection with any matter involving the City. . . .
. . . . .
Special case: Family Members. If you are an
appointed employee, you are generally allowed to act as
an agent for: members of your immediate family (yourself,
your spouse, your parents, your siblings, your children,
your spouse's parents, your spouse's siblings, and your
spouses's children), or any person for whom you serve as
guardian, executor, administrator, trustee or personal
fiduciary, provided that:
a. the matter is not within your official jurisdiction as
a City employee;
b. you have never personally participated in the matter
while employed by the City; and
c. you get prior, written permission from your appointing
authority (see the definition of "appointing authority"
at the end of this brochure).
. . . . .
Special case: Acting on your own behalf. You are
always allowed to represent yourself, and to state
personal points of view. However, you should always make
it clear that you are acting on your own behalf, and not
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acting in any official capacity. You may even represent
yourself before the City agency you work for (but
remember that you may not take any type of official
action on a matter that affects you).
(Emphasis in original).
The section titled "Acting on your own behalf" appears to be
relevant here. Although Joyce and Hopkins maintain they were told
that Fabiano was representing his mother, Fabiano testified below
that he told Joyce that he was only representing himself, and we
must construe any disputes in his favor. See Rosenberg, 328 F.3d
at 17. In fact, Fabiano's complaint in the Zoning Board action
indicates that he and his mother signed the document separately,
each pro se.
Applying the latter section of the manual, it does not seem
that Fabiano committed a violation. Nothing in the litigation
indicated that Fabiano was acting in an official capacity as
counsel to the City when he filed suit, or that he took any
official action on a matter affecting him.
We do not mean to suggest that Fabiano's conduct was proper or
created no conflict of interest with his employer. Indeed,
Fabiano's conduct appears to implicate the Massachusetts Rules of
Professional Conduct, see Supreme Judicial Court Rule 3:07, at
least to the extent that it may have created an appearance of
impropriety. Nor can we condone the bull-headed manner in which
Fabiano defied the stated and obvious concerns of his superiors.
He proceeded with his pro se filing with no apparent regard for
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their concerns. Nonetheless, reluctantly we conclude that under
the specific and unusual facts of this case, the City's interest in
an efficient workplace did not trump Fabiano's First Amendment
right to pursue his zoning suit.
c. Causation
In the third and final step in establishing a First Amendment
violation, Fabiano must show that his protected speech was a
substantial or motivating factor in the City's decision to fire
him. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 287 (1977); Mullin, 284 F.3d at 38. This requirement is
satisfied. Hopkins was holding a copy of the Zoning Board
complaint in her hand when she fired Fabiano, and in her affidavit
below she cited the lawsuit as one of several reasons underlying
the termination (although she took pains to emphasize that the
method by which Fabiano sued the City, not the suit itself, was the
cause). It may well be that a factfinder would determine that
Fabiano's deficiencies in professional judgment, not the lawsuit
itself, was the primary cause of the firing. But, taking all
inferences in favor of Fabiano, as we are bound to do, we conclude
that he has adduced sufficient evidence of causation for purposes
of our review.
2. "Clearly established" right
Having concluded that Fabiano's allegations arguably suffice
to state a First Amendment claim, we proceed to the second step of
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the qualified immunity analysis and consider whether Fabiano's
First Amendment right was "clearly established." Saucier, 533 U.S.
at 201-02. The purpose of this requirement is "to ensure that
before they are subjected to suit, officers are on notice that
their conduct is unlawful." Id. at 206; see also Hope v. Pelzer,
536 U.S. 730, 739 (2002).
The nature of Fabiano's First Amendment claim makes it
extremely difficult for him to prove that this right was clearly
established at the time his employment was terminated. "Because
Pickering's constitutional rule turns upon a fact-intensive
balancing test, it can rarely be considered 'clearly established'"
for purposes of qualified immunity. O'Connor, 994 F.2d at 917 n.11
(quoting Bartlett v. Fisher, 972 F.2d 911, 916-17 (8th Cir.
1992)(internal quotation marks omitted)); see also Frazier v.
Bailey, 957 F.2d 920, 931 (1st Cir. 1992) ("if the existence of a
right or the degree of protection it warrants in a particular
context is subject to a balancing test, the right can rarely be
considered 'clearly established,' at least in the absence of
closely corresponding factual or legal precedent").
The facts of this case do not present the sort of unusual
circumstances that would support the finding of a clearly
established right notwithstanding Pickering. As we noted supra,
there is a very close question as to whether Fabiano's allegations
made out a constitutional claim. Fabiano's supervisors had, on at
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least one formal occasion, stated a basis for distrusting his
judgment, see Dirrane, 315 F.3d at 71, and were reasonably
concerned about the potential conflict of interest (and the
appearance of such conflict) that his Zoning Board lawsuit
entailed. We cannot say that they knew or should have known that
firing Fabiano under these circumstances was unlawful.
Accordingly, we conclude that Joyce and Hopkins are entitled to
qualified immunity on Fabiano's First Amendment claims.
We affirm the judgment of the district court as to all
defendant-appellees.
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