Davignon v. Hodgson

United States Court of Appeals
For the First Circuit

No. 06-1191

DAVID DAVIGNON, DAVID GOUVEIA, DAVID MILLER,
EDWARD MORIS, JR., and THOMAS PRESBY,

Plaintiffs, Appellees,

v.

THOMAS M. HODGSON, Individually and as
Bristol County Sheriff,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker,* Senior U.S. District Judge]

Before

Torruella, Circuit Judge,

Stahl, Senior Circuit Judge,

and Howard, Circuit Judge.

Bruce A. Assad, Bristol County Sheriff's Office, with whom
Gary W. Smith, Susan S. Riedel, and Posternak Blankstein & Lund
LLP, were on brief, for appellant.
Philip N. Beauregard, with whom Timour Zoubaidoulline, and Law
Offices of Beauregard, Burke & Franco, were on brief, for
appellees.

*
Of the Southern District of New York, sitting by designation.
 Jeffrey R. Turco and Brian Knuuttila, on brief for amicus
curiae Massachusetts Sheriffs' Association.
Douglas I. Louison, Stephen C. Pfaff, and Merrick, Louison &
Costello, LLP, on brief for amicus curiae Massachusetts
Correctional Officers Federated Union.
Fredric M. Knapp, Richard Weintraub, James T. Prusinowski, and
Laufer, Knapp, Torzewski, Dalena & Sposaro, LLC, on brief for
amicus curiae National Sheriff's Association.

April 24, 2008
 HOWARD, Circuit Judge. Five Bristol County Massachusetts

correctional officers were suspended from their jobs by Sheriff

Thomas Hodgson. Claiming that the sheriff's actions were in

retaliation for their First Amendment activities, they sued

pursuant to 42 U.S.C. § 1983, in addition to bringing various

claims under state law. A jury found Hodgson liable in his

official capacity on the § 1983 claims, found against him on some

of the state law claims, and awarded a total of $17,980 in

compensatory damages. In this appeal, we reject each of Hodgson's

claims of error and affirm the judgment.

I. Facts

We rehearse the facts in a light most favorable to the

jury verdict. See McDonough v. City of Quincy, 452 F.3d 8, 13 (1st

Cir. 2006).

In 2000, the Sheriff's Department employed 350

correctional officers, all of whom were members of the

Massachusetts Correctional Officers Federated Union (the "union").

Among the correctional facilities operated by the Department were

the Ash Street jail in New Bedford and the House of Correction in

North Dartmouth. Four of the plaintiffs worked at the Ash Street

facility; plaintiff David Davignon worked at the House of

Correction.

All five of the plaintiffs were active in union affairs.

Plaintiffs Davignon, David Gouveia, David Miller and Thomas Presby

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were union stewards, and counted among their union duties looking

into management's alleged violations of the collective bargaining

agreement. Davignon and Presby were also members of the union’s

negotiating subcommittee, as was plaintiff Edward Morris, Jr.

In the spring of 2000, with their collective bargaining

agreement set to expire in June, the union and the Department began

negotiating a new agreement. Hodgson, who as sheriff was in charge

of the correctional facilities, was among those representing the

Department at these negotiations.

The jury heard testimony that, by the summer of 2000,

negotiations had grown tense, after no progress on a new agreement

had been made after several sessions. Davignon testified that

union negotiators had trouble getting release time from work to

attend the sessions. At one session in late June, tensions boiled

over. According to testimony, Hodgson had arrived more than thirty

minutes late, and at the close of the session a union

representative asked him to be punctual for the next meeting.

Witnesses said that Hodgson cursed at the representative, slammed

his hand on the table and said, "I'm the Sheriff. If you have to

wait, you'll wait for me." Both Davignon and Presby were present,

in their capacities as union negotiators.

In time, the union requested mediation. In September,

after returning from the first mediation session, Presby requested

and received permission from superior officers to address fellow

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officers at roll call. There was testimony that presentation of

information unrelated to the facility's daily operations was not

unusual at roll calls, including giving updates on union activity.

Presby reported that the negotiation sessions had not been going

well and that the union planned to hold a meeting to determine its

next step.

Presby's update became the subject of an internal

investigation ordered by Hodgson, to determine whether Presby had

left his post in order to give the report. A few days after

Presby's remarks, Hodgson also ordered an additional investigation

into whether Presby and Morris had left open a door to the central

control area of the Ash Street jail. Hodgson testified that he

initiated this latter investigation because an administrator told

him that on a visit to the facility eleven days prior, the

administrator had walked through a number of unlocked doors

including a door to central control. The administrator identified

Morris and Presby among the officers present in the central control

area. He did not, however, submit a written report on the date of

the incident as called for by standard departmental procedure.

While these investigations were underway, Hodgson issued a policy

directive stressing that union representatives could not use roll

call to discuss union business.

The union decided to hold a picket at a busy intersection

near the Ash Street facility to express dissatisfaction with the

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contract negotiations and to criticize Hodgson's treatment of

correctional officers and their families. The union mailed a

letter to its members providing relevant information, and Davignon,

Gouveia and Miller spoke with individual correctional officers at

work about the planned picket.

At trial, conversations between plaintiffs and four

officers were highlighted. There was no dispute that the

conversations were brief, with estimates ranging from approximately

ten to forty-five seconds. Testimony conflicted as to the precise

nature of Gouveia's and Davignon's conversations. Gouveia said

that he relayed information about the picket to two officers, but

there was also testimony that he asked them if they were going to

attend the picket. One noted that Gouveia held a pen and paper

during the encounter. Further, although Gouveia testified that

several officers approached him and asked him about the picket, the

only officers that reported Gouveia spoke to them said that he did

the approaching. One officer asserted that Davignon contacted him

by telephone and asked him if he would be attending the picket.

Davignon denied doing so both in investigative interviews and at

trial.

Neither the plaintiffs nor the officers with whom they

spoke testified that the conversations distracted any of them from

their work, or otherwise endangered staff or inmates. The officer

allegedly contacted by phone did, however, testify that "in a

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sense" he was taken away from his post to answer Davignon's phone

call.

Hodgson ordered an investigation into these encounters,

to determine whether officers had been pressured or coerced to

participate in the picket. Hodgson testified that he initiated the

investigation because one of the officers had mentioned to him that

he felt that he was being harassed about the picket.

During this time Hodgson addressed three roll calls. In

one or more of them he referred to the Supreme Court's decision in

Garrity v. New Jersey,1 and several witnesses testified that

Hodgson told officers that, based on Garrity, he could terminate

those who failed to be completely truthful during internal affairs

investigations. He also stated that employees could not conduct

union business on duty, and further that he knew there were

"troublemakers" in the department whom he would not hesitate to

remove. Relatedly, he stressed that if they were terminated they

might grieve and eventually get their jobs back, but they would be

making five or six dollars an hour in the interim. Both Gouveia

and Davignon testified that Hodgson stared directly at them when

making the "troublemakers" comment.

Hodgson also discussed the status of the collective

bargaining negotiations. He told the officers that the election

was over, he was the sheriff, and that the longer it took to settle

1
385 U.S. 493 (1967).

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the contract the less money there would be for them and their

families. He also informed them that there would be no retroactive

pay, and that someone was misleading them if they were being told

otherwise. Explaining at trial why he could discuss union matters

at roll call even though his earlier directive had explicitly

banned such discussion, Hodgson asserted that different rules

applied to him as sheriff.

The three investigations had the following results.

First, with respect to whether Presby impermissibly left his post

to address a roll call, investigators determined that Presby did

have permission to leave his post. Second, as to the open central

control door, Morris and Presby were assigned to the area, neither

recalled interacting with the administrator, and Presby

specifically stated that he always complied with rules regarding

entrance doors. The administrator reaffirmed, and filed a written

report confirming, that the central control door was indeed open

and that he had observed Morris and other personnel in the area.

Finally, with respect to the investigation of the picket-related

speech by Davignon, Gouveia, and Miller, interviews of more than

sixty officers yielded written statements from four officers

stating that the plaintiffs had spoken to them about the picket.

In his statement one of the officers noted that he told one of the

plaintiffs to get back to him when he had more information about

the picket. None of the officers wrote that the plaintiffs

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harassed, pressured, solicited or coerced them during their brief

conversations. Three of them gave oral statements and trial

testimony consistent with their written statements. The one

officer whom Davignon had allegedly telephoned, however, testified

at trial that he felt harassed by the phone call.

Based on the investigation results and on the statement

by one of the officers that he had been harassed, Hodgson suspended

Davignon, Gouveia, and Miller for thirty days without pay,

transferred them to another facility, stripped them of their

seniority rights and changed their days off from weekends to

weekdays. Presby and Morris were suspended for ten days without

pay based on the open door incident.

The suspension letters sent to Davignon, Gouveia, and

Miller charged them with soliciting correctional officers to

participate in a union picket. The letters cited Article VII of

the Collective Bargaining Agreement as the basis for the

suspensions but also pointed out that the plaintiffs' wrongful

conduct "interfered with other correctional officers' performance

of their duties" and adversely affected "the efficient operation of

the department and potentially the health and safety of all

employees."2 Finally, the letters stated that the plaintiffs had

2
Article VII, in its entirety, contains two sentences about work
hours. Article VIII, on the other hand, does discuss policies
applying to union representatives but only states that a steward
list should be given to the sheriff and that stewards should be
granted reasonable time off to "investigate and settle grievances,

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used departmental telephones to solicit the other officers, in

violation of departmental rules.3 At trial, Hodgson acknowledged

that neither Gouveia nor Miller used departmental telephones and

that this particular charge was a typographical error.

The suspension letters the supervisor of the Ash Street

facility sent to Presby and Morris charged that they had breached

security while assigned to central control. The stated basis for

the suspensions was the administrator's written report.

At trial, Hodgson elaborated on the various bases for the

suspensions. With respect to Davignon, Gouveia and Miller, he

generally reiterated the grounds cited in the suspension letters

but added that he also relied on the oral statement by one of the

officers about feeling harassed. Hodgson acknowledged that he

believed the plaintiffs had pressured rather than harassed other

officers. He also testified at length about the general risks

present in the correctional facility setting and the dangers that

speech like the plaintiffs' posed to the facility's security

because of the great potential for distraction.

With respect to Presby and Morris, Hodgson said that the

suspensions were based on the investigative report of the door

incident. By contrast, Presby testified that in the past staff had

attend meetings of state and national bodies, including conventions
without loss of pay."
3
The letters also reference the plaintiffs' conduct during the
investigation, but Hodgson does not rely on that basis on appeal.

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pointed out opened doors but that no one had been punished as a

result. Further, both Hodgson and the supervisor acknowledged that

they did not investigate the administrator's report of another door

left open.

Nowhere in the trial testimony was there identified a

specific rule disallowing union speech during working hours aside

from the sheriff’s directive banning union speech at roll calls.

Further, although Hodgson at one point testified that it was a

violation to be doing anything other than working in the facility,

he later said that officers were permitted to talk about non-union

related topics such as upcoming parades, sports, and other small

talk subjects. Several witnesses testified that officers often

discuss non-work related matters at work. Finally, there was

testimony that departmental telephones at times were used to make

personal calls.

II. Proceedings

The plaintiffs sued Hodgson in both his individual and

official capacities, seeking damages and injunctive relief under 42

U.S.C. § 1983 for violation of their First Amendment rights of

speech and association. All five plaintiffs also alleged violation

of the Massachusetts Civil Rights Act ("MCRA"), Mass. Gen. Laws c.

12, §§ 11H, 11I, and asserted additional state law claims,

including invasion of privacy under Mass. Gen. Laws c. 214 § 1B,

and intentional interference with advantageous relations.

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 Following the court’s denial of summary judgment for any

party, the case was tried before a jury. The verdicts were mixed.

On the § 1983 claims the jury found in favor of Hodgson in his

individual capacity but against him in his official capacity, and

awarded the plaintiffs lost wages. The jury also found for Morris

under the MCRA but awarded no damages. It found in favor of

Davignon, Gouveia and Miller for intentional interference with

advantageous relations, with no damages awarded to Davignon; and

for Hodgson on the invasion of privacy claims.

Hodgson seasonably filed motions for judgment as a matter

of law or for a new trial, to set aside the damage award or for

remittitur. The district court denied these motions and awarded

the plaintiffs attorney fees.

III. Discussion

On appeal, Hodgson presses four primary arguments:

first, the district court erred in concluding as a matter of law

that the First Amendment protected the plaintiffs’ speech; second,

no reasonable jury could have found that Presby’s and Morris’s

punishments were in retaliation for their exercise of First

Amendment rights; third, the jury’s § 1983 individual capacity

findings in favor of Hodgson were inconsistent with the findings in

favor of Morris on his MCRA claim and in favor of Davignon, Gouveia

and Miller on their intentional interference claims; and fourth,

the district court erred in instructing the jury regarding the

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First Amendment claims. Two evidentiary challenges and an attack

on the attorney fee award are also mounted. We consider these

claims in turn.

We review de novo the district court's denial of a motion

for judgment as a matter of law, Acevedo-Delgado v. Rivera, 292

F.3d 37, 40 (1st Cir. 2002) and the denial of a motion for new

trial for abuse of discretion, see Interstate Litho Corp. v. Brown,

255 F.3d 19, 29 (1st Cir. 2001). The standards of review

applicable to specific issues are set out in the discussion of

those issues.

A. Freedom of Speech Retaliation Claim

A government employee does not surrender all of her First

Amendment rights at her employer's doorstep, Garcetti v. Ceballos,

547 U.S. 410, 417 (2006), and has the right to speak as a citizen

addressing matters of public concern. City of San Diego v. Roe,

543 U.S. 77, 80 (2004). This right, however, is not absolute.

Connick v. Myers, 461 U.S. 138, 150 (1983); Curran v. Cousins, 509

F.3d 36, 44 (1st Cir. 2007). "[A] governmental employer may impose

certain restraints on the speech of its employees, restraints that

would be unconstitutional if applied to the general public." San

Diego, 543 U.S. at 80.

When analyzing First Amendment claims that arise in the

government workplace, we follow an established route. As a

threshold matter, we must determine whether the employee spoke as

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a citizen on a matter of public concern. Rankin v. McPherson, 483

U.S. 378, 384 (1987); Baron v. Suffolk County Sheriff's Dept., 402

F.3d 225, 233 (1st Cir. 2005). If so, then we must balance the

interests of the employee, as a citizen, in commenting upon matters

of concern and the "interest of the State, as an employer, in

promoting the efficiency of the public services it performs through

its employees." Pickering v. Bd. of Educ., 391 U.S. 563, 568

(1968); Mihos v. Swift, 358 F.3d 91, 103 (1st Cir. 2004). If the

balance weighs in favor of the employee, it must then be determined

whether the protected speech was a "substantial or motivating

factor in the adverse action against the plaintiff." Mt. Healthy

City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 281-282

(1977); Curran, 509 F.3d at 45.

The standard of review depends on the step. Because the

first two prongs involve analyzing whether the speech is "of a

character which the principles of the First Amendment protect,

these determinations are always subject to de novo review."4

O'Connor v. Steeves, 994 F.2d 905, 912 (1st Cir. 1993)(internal

4
In this case the district judge curiously, after holding that
the balance weighed in favor of the plaintiffs, nevertheless
subsequently submitted the balancing question to the jury. See
Breaux v. City of Garland, 205 F.3d 150, 156 n. 9 (5th Cir.
2000)(describing the district court's decision to send the
balancing question to the jury as "problematic"). This does not,
however, impact our standard of review. See Knowlton v. Greenwood
Indep. Sch. Dist., 957 F.2d 1172, 1177-78 (5th Cir. 1992)(reviewing
balancing question de novo despite fact that district court sent
question to jury).

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quotation marks and citation omitted). The last prong, causation,

presents a question of fact. Nethersole v. Bulger, 287 F.3d 15,

18-19 (1st Cir. 2002). Accordingly, where a jury has decided

causation vel non, we reverse only if no reasonable jury could have

arrived at that conclusion. Crowley v. L.L. Bean, 303 F.3d 387,

393 (1st Cir. 2002). Here, the plaintiffs' evidence satisfies

their burden at each step.

1. Public Concern5

In answering the threshold question of whether the speech

involves a matter of public concern we must determine if the

employee's expression can fairly be considered to relate to "any

matter of political, social, or other concern to the community."

Connick, 461 U.S. at 146. This is a case-specific, fact-dependant

inquiry. Curran, 509 F.3d at 45. We generally look to the

"content, form, and context of a given statement as revealed by the

whole record." Id. at 147-148; Jordan, 428 U.S. at 72. Content,

however, is pre-eminent. See O'Connor, 994 F.2d at 914. If the

employee's speech is on a topic that would qualify, "on the basis

of its content alone" as a matter of inherent public concern, we

5
The public concern inquiry is relevant to the claims of
Davignon, Gouveia, and Miller. Hodgson has not on appeal addressed
whether Presby's roll call speech involved a matter of public
concern, and thus waives argument on that issue. United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Hodgson did address the
cause of Presby's suspension, which we analyze at step three.
Plaintiff Morris claimed Hodgson retaliated against him based on
his association with the union, and we take up that claim
separately.

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needn't inquire further into the "form and context" of the

expression. O'Connor, 994 F.2d at 914.

The plaintiffs argue that their speech, because it

related to union activity, touched on a matter of "inherent public

concern" and that we should therefore dispense with a more robust

"content, form, and context" inquiry. We are reluctant to do so.

In the past we have cautioned against allowing the inherent public

concern category to draw too many types of cases within its

gravitational pull. See Fabiano, 352 F.3d at 454 (noting, in

refusing to categorically hold that public zoning lawsuits involve

matters of inherent public concern, that "to use so broad a

standard . . . would sweep nearly every public act under First

Amendment protection").

To be sure, certain categories of speech carry residual

guarantees of their public qualities and are often interpreted,

justifiably, to involve matters of inherent public concern. See

Mihos, 358 F.3d at 102-103 (public voting); see also Baron, 402

F.3d at 235 (reports to supervisors of official misconduct or

wrongdoing within public office). Private speech to fellow

employees regarding union activities is not necessarily imbued with

those same public qualities. We are not alone in this conclusion.

See Boals v. Gray, 775 F.2d 686, 693 (6th Cir. 1985)(holding that

an employee's speech, simply because it is union-related, does not

touch on matter of public concern as matter of law); see also

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Gregorich v. Lund, 54 F.3d 410, 415 (7th Cir. 1995)(determining

inquiry into "precise content, form, and context" necessary despite

the fact that case involved union activity).

The fact that the speech in this case related to union

matters is not sufficient by itself to dispense with full-dress

Connick analysis. But that fact does point in the direction of

finding that the speech involved a matter of public concern. Other

circuits have weighed union-related speech heavily in the public

concern calculus. See Boddi v. City of Columbus, 989 F.2d 745, 750

(5th Cir. 1993)(noting that "much more of the range of [union]

activity than the range of employee speech . . . is not solely

personal and is inevitably of public concern"); Clue v. Johnson,

179 F.3d 57, 61 (2d Cir. 1999) (noting that union activities which

"necessarily entail a substantial criticism of management raise

matters of public concern.") Here, not only did the plaintiffs'

speech involve union activity in general, but one of the picket's

stated purposes was to allow union members to publicly express

criticism of management. At trial, Davignon, Gouveia, and Miller

all testified to this fact, specifically asserting that the picket

would publicize Hodgson's alleged unfair treatment of correctional

officers.

Moreover, the plaintiffs' speech at least touched on

newsworthy subjects. The speech contained information about a

picket specifically intended to alert the public to the behavior of

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Hodgson, a politically elected official. See Connick, 461 U.S. at

148 (noting that speech may involve a matter of public concern if

it attempts "to bring to light actual or potential wrongdoing or

breach of public trust on the part of [government official]").

Hodgson characterizes the plaintiffs' statements to

fellow officers as being related only to their "personal

grievances" with management. He further says that the plaintiffs

spoke solely out of self-interest. Both of these arguments are

wanting. First, the statements were not muttered complaints about

Hodgson or his administration but rather were responses to

questions about -- or requests for support of -- an upcoming

picket. Even if we were to construe the content of the statements

as being indirectly critical either of Hodgson's behavior toward

the correctional workers or of the administration's stance in the

collective bargaining process, such would not automatically strip

the speech of its public qualities. See Givhan v. Western Line

Consol. Sch. Dist., 439 U.S. 410, 415-416 (1979) (noting fact that

employee's workplace speech criticized her government employer did

not necessarily indicate that it did not involve matter of public

concern). Second, although it would be naive to think that the

plaintiffs in this case were moved to speak solely by the spirit of

civic-mindedness, our cases do not mandate selflessness on the part

of plaintiffs. See Fabiano, 352 F.3d at 455 (holding employee's

speech touched on a matter of public concern where his purpose in

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filing the lawsuit "was to restore the integrity of the zoning

process and remedy parking congestion" in addition to protecting

his property interest).

It is true that the plaintiffs stood to benefit in many

ways from persuading co-workers to attend the picket.

Nevertheless, the record also supports a conclusion that the

plaintiffs wanted to improve the collective bargaining process as

a whole and attempted to do so through the time tested method of

drawing the public's attention to what they considered unfair

behavior on the part of the defendant. Compare Saulpaugh v. Monroe

Cmty. Hosp., 4 F.3d 134, 143 (2d Cir. 2002)(complaints of sexual

harassment did not involve matter of public concern because

personal in nature and not related to employer's broader policies).

The fact that the plaintiffs hoped their speech would benefit them

personally in some respects is not fatal to their case. See

Gregorich, 54 F.3d at 416 (holding plaintiff-employee's union-

organizing effort involved matter of public concern where its

purpose was to effect change in management policy to benefit

himself and co-workers).

2. Balancing the Interests

In balancing the interests of the employer and employees

in this case, we look first to the teaching of Waters v. Churchill,

511 U.S. 661 (1994) with respect to the speech engaged in by

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plaintiffs Davignon, Gouveia, and Miller.6 Waters applies where

the employer who took disciplinary action did not have personal

knowledge of the true content of the employee's speech but rather

relied on another's reports of what the employee said. See id. at

678.7

Under Waters, we apply the balancing analysis to the

facts as the employer believed them to be if the employer arrived

at its conclusion reasonably and in good faith. See Waters, 511

U.S. at 677; see also Kearney v. Town of Wareham, 316 F.3d 18, 24-

25 (1st Cir. 2002)("employer may rest...action on evidence produced

in an internal investigation so long as the findings gleaned from

the investigation are facially reasonable and drawn in good

faith")(citing Waters, 511 U.S. at 677).

Here, plaintiffs put forward evidence that, while Hodgson

may not have acted with bad faith, he acted unreasonably in

arriving at his suspension decision. As the suspension letters

6
The Waters analysis, like the public concern inquiry, is not
applicable to Presby because Hodgson contends that he disciplined
Presby based on the "door" incident rather than on anything Presby
said.
7
A court may engage in a Waters analysis when determining whether
the speech involved a matter of public concern, Meaney v. Dever,
326 F.3d 283, 288-289 (1st Cir. 2003), or when examining the
employer's determination that government interests outweighed the
plaintiff's interest in speaking. See Waters, 511 U.S. at 680
("the potential disruptiveness of the speech as reported was enough
to outweigh whatever First Amendment value it might have
had")(emphasis added); see also Hennessey v. City of Melrose, 194
F.3d 237, 247 (1st Cir. 1999).

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indicate, Hodgson took action because he believed the plaintiffs'

speech, as reported, involved solicitation of other officers,

caused interference with the other officers' performance of duties,

and created safety risks. In arriving at this conclusion, however,

the defendant consulted four written reports that did not

characterize the plaintiffs' statements as solicitation, contained

virtually no mention of distraction or interference with work

responsibilities, and did not reference any safety risks

whatsoever.

At trial the defendant also testified that he largely

relied on the one officer's oral comment mentioning harassment.

But that officer's later report, which Hodgson also said he relied

upon, did not comport with the oral statement. As the Supreme

Court has emphasized, when there is a reasonable likelihood that

what an employee said is protected by the First Amendment, an

employer "must tread with a certain amount of care." Waters, 511

U.S. at 678. Here, Hodgson had strong evidence indicating the

plaintiffs' speech was not disruptive. At the least, this evidence

should have prompted him to engage in further investigation. See

Waters 511 U.S. at 678 (indicating employer's decision-making may

be unreasonable if investigation used falls outside range of what

reasonable manager would use). Accordingly, when balancing the

respective interests we will take a fresh look at the facts and not

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simply examine the facts as the employer believed them to be. See

id. at 677.

The balancing test employed at this step, "Pickering

balancing," requires a balancing of "the value of an employee's

speech . . . against the employer's legitimate government interest

in 'preventing unnecessary disruptions and inefficiencies in

carrying out its public service mission.'" Guilloty Perez v.

Pierluisi, 339 F.3d 43, 52 (1st Cir. 2003) (citing O'Connor, 994

F.2d at 915). In evaluating the government's interest, a number of

factors may be considered. Among these are (1) the time, place,

and manner of the employee's speech, Connick, 461 U.S. at 153

(noting that speech will likely be more disruptive if it occurs

during work hours, at the office, or requires the speaker or others

to leave work stations), and (2) the employer's motivation in

making the adverse employment decision. See Mihos, 358 F.3d at 103

(noting if the employer retaliated entirely out of self-interest as

opposed to a legitimate concern about the functioning of government

services, the government's side of the balance is undermined).

Ultimately, Pickering balancing, like the public concern analysis,

is highly fact specific. See Evans-Marshall v. Bd. of Educ., 428

F.3d 223, 239 (6th Cir. 2005); see also Gustafson, 290 F.3d at

909)(citation omitted).

In emphasizing the government's interests, both Hodgson

and amici raise concerns that are not insubstantial. In addition

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to contending that the plaintiffs' speech caused actual disruption,

Hodgson testified about the more general need to assert control

over correctional officers' speech. He spent considerable time

detailing the pressurized, high-stakes environment in which the

officers work and relating how, in particular, if plaintiffs'

speech was left unchecked, it could have potentially disrupted that

environment, creating risks to the safety of employees and inmates

alike.

Maintaining discipline and harmony in the workplace is a

valid governmental interest. See Rankin, 483 U.S. at 388 (noting

that, in balancing the interests under Pickering, courts may ask

"whether the statement impairs discipline by superiors or harmony

among co-workers, [or] has a detrimental impact on close working

relationships for which personal loyalty and confidence are

necessary.")(citing Pickering, 391 U.S. at 570-573). The need for

"discipline, maintenance of harmony among co-workers, and close

working relationships requiring personal loyalty and confidence is

greater in the context of law enforcement." Guilloty Perez, 339

F.3d at 53; see also Conaway v. Smith, 853 F.2d 789, 798 (1st Cir.

1988). Putting aside practical distinctions between correctional

facilities and police departments, the importance of safety within

correctional facilities cannot casually be dismissed.

Although expressing valid interests, the defendant has

not in our view demonstrated how the plaintiffs' speech here

-23-
created harm or increased risks. There was no evidence of actual

disruption, despite the fact that the plaintiffs spoke at work and

during work hours. The plaintiffs' statements to fellow employees

were brief, generally lasting a matter of seconds. The brevity of

these statements likely posed no greater danger than the small talk

regularly engaged in during working hours. At trial, the sole

evidence presented about distraction was one officer's testimony

that he was taken from his post "in a sense" by Davignon's phone

call. Taking nothing away from whatever subjective view that

officer holds of his post, Davignon, both in interviews and at

trial, denied ever consulting that officer about the picket.

Against the competing evidence, this lone characterization of a

conversation by one officer is rather thin.

Against the scant evidence of actual disruption, Hodgson

reasonably asserts that a government employer is entitled to

consider not only whether the employee's speech actually disrupted

the work place environment but also whether the speech had the

potential to disrupt. He argues that the plaintiffs' speech

threatened to "disintegrate" working relationships by creating a

division between officers sympathetic to the union and those who

were not.

Indeed, an employer may consider a speech's potential to

disrupt. See Connick, 461 U.S. at 152 ("We do not see the

necessity for an employer to allow events to unfold to the extent

-24-
that the disruption of the office and the destruction of working

relationships is manifest before taking action"). Nevertheless,

there is a significant question on these facts whether Hodgson

suspended the plaintiffs because of their speech's potential to

disrupt when the suspension letters issued to the plaintiffs refer

solely to the actual disruption the speech caused.

In any event, the record is even thinner in support of

Hodgson's position that the plaintiffs' speech threatened to

disrupt the harmony among workers. Testimony and the investigative

reports reveal that when the plaintiffs approached other officers

they did so in a civil, non-threatening manner. See Lewis v.

Harrison Sch. Dist., 805 F.2d 310, 315-316 (8th Cir.

1986)(upholding jury's finding that plaintiff's speech was not

disruptive where speech was civil in tone). In fact, the evidence

was that in some instances, other officers actually sought

information from the plaintiffs about the picket.

If the plaintiffs' speech hinted at burgeoning signs of

hostility toward officers unsympathetic to the union, Hodgson's

concerns about potential disruption to workplace harmony would have

substance. After an exhaustive review of the record, however, we

find not even the specter of such harm. The "mere incantation of

the phrase 'internal harmony in the workplace' is not enough to

carry the day." Gustafson, 290 F.3d at 911 (citing Hubert v.

Wilhelm, 120 F.3d 648, 655 (7th Cir. 1997); see also Weast v.

-25-
Pierce Cty., 34 Fed. Appx. 587, 589 (9th Cir. 2002)(determining

record did not support conclusory allegations that officer's speech

criticizing management could disrupt department operations).

Hodgson warns that if the plaintiffs were to prevail

here, the safety and efficiency of correctional facilities

everywhere would be compromised. But we do not view this case as

being about whether a correctional facility employer can prohibit

all non-work related conversation on the job. Rather, we engage in

Pickering balancing of the interests presented, necessarily taking

into account a number of highly case specific factors. Included

among these are the employer's motives in taking the adverse

action.

In this case, there is ample evidence that Hodgson

suspended the plaintiffs not out of a legitimate concern that their

speech compromised safety at the correctional facilities but

because of their pro-union activity. First, the timing of the

suspensions is suspect. When Hodgson suspended the five active

union members, he had already demonstrated significant frustration

with the union, indulging in a outburst during one negotiation

session in particular. Both Davignon and Presby, part of the

union's negotiating team, were present at this session. See Mihos,

358 F.3d at 103 (noting government side of scale undermined if

evidence indicates employer fired employee in a "retaliatory fit of

pique").

-26-
 Additionally, Hodgson's own actions and pattern of

enforcement further undermine his claim of legitimate motives.

Although asserting that discussion of union matters is particularly

divisive and poses a serious risk of disruption, Hodgson used roll

call to personally discuss these same union matters. Relatedly, if

Hodgson was so concerned that any non-work focused speech would

create such serious distractions and risks, we think it is more

than curious that he would allow employees to discuss things such

as parades and sports without punishment.

Finally, Hodgson argues that the fact that the plaintiffs

were not authorized to "conduct" union business on county time

further bolsters the government's interest. On the facts of this

case, this argument is unpersuasive for two reasons. First, while

the issue of whether the plaintiffs violated office policy is not

irrelevant to the Pickering inquiry, see Connick, 461 U.S. at 153,

it is unclear what policy Hodgson relies on. Nowhere in the

collective bargaining agreement, the list of the duties and

responsibilities of correctional officers, or the code of

ethics/employee conduct and work rules is the topic of "conducting"

union business specifically addressed. Moreover, it is highly

doubtful that the brief asides about an upcoming picket that took

place here constitute "conducting" union business, any more than,

for example, posting a notice would.

-27-
 Because Hodgson acknowledges that he disciplined

Davignon, Gouveia, and Miller because of their speech, our analysis

of their claims ends here. But, because Hodgson proffered a non-

speech based reason for Presby's suspension, we must analyze

Presby's claim at step three.

3. Causation

Unlike Davignon, Gouveia and Miller, who the defendant

acknowledges were disciplined for their speech, in order for Presby

to prevail he must demonstrate that his protected expression was a

"substantial or motivating factor in the adverse employment

decision." Mt. Healthy City Sch. Dist. Bd. Educ., 429 U.S. at 287.

This is simply a question of causation. See Tejada-Batista v.

Morales, 424 F.3d 97, 101 (1st Cir. 2005)(noting that Mt. Healthy

"comports with [] traditional tort-law principle[s]").

Causation is ordinarily analyzed in two steps. Yerardi's

Moody St. Rest. & Lounge, Inc. v. Bd. of Selectmen, 932 F.2d 89, 91

(1st Cir. 1991); Mullin, 284 F.3d at 38. First, the plaintiff must

show that the employer would not have taken adverse action but for

the plaintiff's speech.8 Tejada-Batista, 424 F.3d at 101. The

plaintiff, in establishing this causal link, need not produce

direct evidence of his employer's motivation and accordingly may

8
We emphasize that the plaintiff's burden under Mt. Healthy is
more substantial than a plaintiff's burden of producing prima facie
evidence in a Title VII discrimination case. Guilloty Perez, F.3d
at 56 n. 11.

-28-
rely on circumstantial evidence. Guilloty Perez, 339 F.3d at 56-57

(internal quotation marks and citation omitted). If the plaintiff

meets that burden, the burden shifts to the employer, and the court

must afford the employer the opportunity to sever the causal link.

O'Connor, 994 F.2d at 913. Hodgson may accomplish this task by

establishing, by a preponderance of the evidence, that he would

have taken the adverse action even had Presby not engaged in

protected speech. Id.

A reasonable jury could have found Presby would not have

been suspended but for his speech at the roll call. Although

Hodgson asserts that Presby was suspended because he left a

facility door open, the record contains substantial circumstantial

evidence indicating otherwise.

First, the timing of both the investigation and the

suspension is questionable. Hodgson ordered the open door incident

investigation a little over a week after Presby spoke at the roll

call. See Nethersole, 287 F.3d at 19 (noting employer's actions

immediately following alleged protected speech relevant to

causation inquiry even though ostensibly related to different

incident). Further, the suspension for the door incident was

issued the day after an internal affairs inquiry began to establish

that Presby had permission to leave his post and address roll call.

Second, the suspension relied on the word of one person

as opposed to the word of two others. While an employer is not

-29-
prohibited from crediting one person's report of an incident over

others, context matters. Here, the one person happened to be a

member of management, while the two others were active union

members. Along with the other evidence of pretext, the jury was

entitled to consider whether acceptance of one version over the

other revealed a desire to punish Presby for his roll call speech

under the guise of something else. At the least, the conflicting

evidence in these circumstances should have prompted further

investigation, for example, questioning others assigned to the

central control area. See also Am. Postal Workers Union v. United

States Postal Serv., 830 F.2d 295, 311 (D.C. Cir. 1987) (noting

employer's failure to investigate further in face of conflicting

evidence strongly suggested asserted reason for taking adverse

action was pretext).

Third, the deviation from standard reporting procedures,

evidenced by both the administrator's oral report to Hodgson --

coming eleven days after the alleged incident, as well as by the

administrator's late written report -- filed a month and a half

after the same incident, casts more doubt on the investigation's

integrity. Even absent any charge of collusion, the fact that the

discipline decsion relied on substantially delayed reports, rife

with all the risks of faulty memory, again calls into question the

true motive for using the incident as grounds for suspension.

-30-
 Finally, the jury had before it the trial testimony of

Presby, the supervisor and Hodgson himself, establishing the

absence of other investigations of, and punishments for, similar

incidents. Presby testified that although the door had been left

open on a number of prior occasions, no one had been punished in

connection with those incidents. To be sure, past wrongs do not

make a right, and conceivably Hodgson could have decided to step up

enforcement. However, both Hodgson and the supervisor testified

that, despite the fact that the same administrator reported another

door being left open, Hodgson chose not to pursue an investigation

of that incident. This inference of selective enforcement bolsters

Presby's theory that Hodgson used the door incident as a pretext in

order to retaliate against Presby for his protected speech.

This testimony, together with the timing of the

investigations and suspensions, as well as the reliance on late

reports from a person in the management ranks in the face of

contradicting evidence, was sufficient to shift the burden to

Hodgson and require him to prove that Presby would have been

suspended even in the absence of his protected conduct. For his

part, Hodgson pointed to the report detailing the administrator's

observations to justify the disciplinary decision. A reasonable

jury could have found that this was not enough.

-31-
 B. Freedom of Association Retaliation Claim

Morris does not contend that Hodgson retaliated against

him based on anything he said. Rather, Morris claims Hodgson

suspended him because of his active association with the union.

The relevant question is whether Hodgson suspended Morris

based on the open door incident or based on his union association.9

The Mt. Healthy causation inquiry applies in instances where a

government employee claims her employer has taken adverse action

that is violative of associational rights. See Gomez v. Rivera

Rodriguez, 344 F.3d 103, 110 (1st Cir. 2003)(requiring that a

plaintiff show that "political affiliation was a substantial or

motivating factor in the decisional calculus")(internal citation

omitted).

On this point we may be brief. Morris described himself

as "very involved," with the union and, at the time of his

suspension, had an active role in the collective bargaining

negotiations. Hodgson suspended Morris against the backdrop of

9
Neither the Supreme Court nor this Circuit has decided whether
the public concern requirement extends to an employee's claim that
an employer has retaliated based on association. See Shrum v. City
of Coweta, 449 F.3d 1132, 1138 (10th Cir. 2006). We have
explicitly reserved this question, Tang, 163 F.3d at 11 n.4, which
has divided the Courts of Appeals. See Shrum, 449 F.3d at 1139 n.
3 (listing circuits definitively resolving issue). Hodgson's brief
assumes that we do require that the associational activity in
question involve a matter of public concern, but does not
adequately address why Morris's union association did not, in fact,
implicate such a matter. Thus, the public concern issue as to
Morris is waived. Zannino, 895 F.2d at 17.

-32-
these negotiations. Because Hodgson charged and suspended Morris

and Presby based on the same incident, we do not need to again

reference the various shortcomings of Hodgson's proffered reason

for the suspensions. The jury reasonably could have determined

that Morris was punished because of his association with the union.

C. Jury Instructions

Hodgson contends that the district court erred in refusing

to give two of his requested jury instructions. His requests

emphasized that: (1) "judicial review of prison officials' actions

is very limited," thus courts "must give appropriate deference to

the decisions of prison administrators and appropriate recognition

to the peculiar and restrictive circumstances of penal

confinement,"; and (2)"even absent the special deference given to

prison administrators, potential disruptiveness can outweigh the

employee's free speech interests."

We review jury instructions de novo. Seahorse Marine

Supplies, Inc. v. P.R. Sun Oil Co., 295 F.3d 68, 76 (1st Cir. 2002)

(citing United States v. DeStefano, 59 F.3d 1, 2 (1st Cir. 1995)).

Where a district court refuses to give a party's requested

instruction, however, we will reverse only if the requested

instruction was "(1) correct as a matter of substantive law, (2) not

substantially incorporated into the charge as rendered, and (3)

integral to an important point of the case." White v. New Hampshire

Dep't of Corr., 221 F.3d 254, 263 (1st Cir. 2000)(internal citation

-33-
omitted). Hodgson timely objected to the failure to give his

requested instructions; thus if it was error not to give them, we

must determine whether the error was harmless. See Scarfo v.

Cabletron Sys., 54 F.3d 931, 939 (1st Cir. 1995).

There was no error in refusing to issue Hodgson's

requested instructions. With respect to the requested "deference

instruction," Hodgson does not cite any precedent suggesting that

courts should give special deference to employment decisions made

by correction officials. Rather the cited cases involve correction

officials making decisions affecting inmates. See, e.g., Jones v.

N.C. Prisoners' Labor Union., 433 U.S. 119 (1977)(operation of

prisoners' union); Devany v. Hall, 509 F. Supp. 497 (D. Mass.

1981)(former inmate's complaint against officers and employees of

department of corrections). The requested jury instruction was

therefore not required as a matter of substantive law.

The other requested instruction, emphasizing "potential

disruptiveness," was correct as a matter of substantive law. But

this instruction was substantially incorporated into the charge to

the jury. The jury was instructed that, when balancing the relevant

interests, it should take into account:

[T]he Sheriff's interest in promoting the
efficiency of the public services performed
through employees...The factors that are
relevant...are whether the speech creates
disharmony in the workplace, impedes the
speaker's ability to perform his duties or
impairs working relationships with other
employees.

-34-
 The jury thus understood that speech "creates disharmony,"

or "impairs working relationships" if it actually disrupts or if it

creates a potential for disruption. The district judge did not word

the instruction in such a way as to suggest that the jury had to

find actual disruption, e.g., "created disharmony," or "impaired

working relationships." In criminal cases we have said that a

defendant has a right to an instruction on his theory of the case

when the theory is supported by the record and is valid.

DeStefano, 59 F.3d at 5. But even in criminal cases, "so long as

the charge sufficiently conveys the defendant's theory, it need not

parrot the exact language that the defendant prefers." United

States v. McGill, 953 F.2d 10, 12 (1st Cir. 1992)(internal citation

omitted). Here the district court's charge to jury sufficiently

conveyed Hodgson's theory.

Even if the failure to give the requested instructions was

error, the error was harmless. A new trial is called for only "if

the error could have affected the result of the jury's

deliberation." Romano v. U-haul Int'l, 233 F.3d 655, 667 (1st Cir.

2000)(citing Allen v. Chance Mfg. Co., 873 F.2d 465, 469 (1st Cir.

1989). Here, even if the district court had specifically used the

phrase "potential disruptiveness" in the instruction it is unlikely

that the jury would have reached a different conclusion. At trial,

the plaintiffs discredited the theory that Hodgson acted because the

-35-
plaintiffs' speech posed the potential for disruption. See Romano,

233 F.3d at 667 (harmless error in instruction where prevailing

party presented evidence at trial sufficient to dispel concern

proper instruction would have influenced verdict). And further, as

discussed above, the jury almost certainly considered the potential

for disruption given the language of the actual instruction.

D. Inconsistent Verdicts Claim

When reviewing claims of inconsistency between general

civil jury verdicts, we do not have the compulsion of a specific

procedural rule to determine the existence of an inconsistency.

Merchant v. Ruhle, 740 F.2d 86, 89 (1st Cir. 1984). We are,

however, reluctant to order a new trial on the basis of inconsistent

jury verdicts. Connelly v. Hyundai Motor Co., 351 F.3d 535, 540

(1st Cir. 2003). When a party claims that jury verdicts are

inconsistent, we "attempt to reconcile the jury's findings, by

exegesis if necessary." Acevedo-Diaz v. Aponte, 1 F.3d 62, 74 n.15

(1st Cir. 1993). This exercise involves determining whether the

jury could have, consistent with its instructions, rendered the

challenged verdicts. See Merchant, 740 F.2d at 91. In undertaking

this analysis we view the facts in the light most favorable to the

verdict. Id.

Hodgson claims that the jury's general verdicts were

inconsistent in two ways.

-36-
 1. Alleged inconsistency between § 1983 and
Intentional Interference with Advantageous Relationship
verdicts.

First, Hodgson argues that the jury's finding in his favor

on Davignon's, Gouveia's, and Miller's § 1983 individual capacity

claims is inconsistent with its finding that those same plaintiffs

were entitled to judgment on their intentional interference with

advantageous relations10 claims. In this argument, Hodgson relies

on the fact that the jury specifically found that he did not act

"willfully, maliciously, or with reckless indifference to the

plaintiff's constitutional rights" and consequently did not award

punitive damages to the plaintiffs on their § 1983 claims.

In analyzing this claimed inconsistency we look to

distinctions between the federal punitive damage standard under §

1983 and the elements a plaintiff must prove exist to recover on a

state intentional interference claim. Under § 1983, a jury may levy

punitive damages when a defendant's conduct is "shown to be

motivated by evil motive or intent, or when it involves reckless or

callous indifference to the federally protected rights of others."

Smith v. Wade, 461 U.S. 30, 56 (1983); see also Iacobucci v.

Boulter, 193 F.3d 14, 25-26 (1st Cir. 1999). In Iacobucci, we

emphasized that the "evil motive," "intent," or "reckless or callous

10
Although the state law claim is referred to as "wrongful
interference with advantageous relations" in the briefs and in the
jury instructions, the claim is more commonly referred to in the
relevant decisional law as "intentional interference with
advantageous relations." Accordingly, we do so here.

-37-
indifference" pertains to the "defendant's knowledge that [he] may

be acting in violation of federal law." Iacobucci, 193 F.3d at 26

(emphasis added) (internal quotation marks and citation omitted).

As for the state law claim, in order for a plaintiff to

recover for intentional interference with advantageous relations he

must prove, among other elements, that the defendant intentionally

interfered with the employment relationship and that this

interference "was improper in motive or means." See Weber v. Cmty.

Teamwork, Inc., 434 Mass. 761, 781 (2001). Where the defendant is

a supervisor the plaintiff must also show that the improper motive

or means rose to the level of "actual malice" and was the

"controlling factor" in the defendant's interference. Id. Whether

Hodgson possessed "actual malice" depends on whether he had a

"'spiteful, malignant purpose, unrelated to the legitimate corporate

interest' of the employer," id. at 782. Put differently, the

question is whether the defendant "was personally hostile or

harbored ill will toward the plaintiff." Skylar v. Beth Isr.

Deaconess Med. Ctr., 59 Mass. App. Ct. 550, 554, 797 N.E.2d 381

(2003)(citing Weber, 434 Mass. at 783).

The jury's verdicts on the § 1983 and intentional

interference claims can be reconciled. The court specifically

instructed the jury that it could award punitive damages if it found

that the defendant acted "willfully, maliciously, or with reckless

indifference to the plaintiff's constitutional rights." (emphasis

-38-
added). The jury could have determined that Hodgson had a

"spiteful, malignant purpose," namely, to silence those speaking out

in favor of the union, but that he believed that silencing them was

permissible under federal law. See Kolstad v. ADA, 527 U.S. 526,

537 (noting punitive damages inappropriate where employer believes

actions are lawful); see also Iacobucci, 193 F.3d at 26. Moreover,

the jury may have determined that, First Amendment issues aside,

Hodgson was hostile towards the plaintiffs. See Weber, 434 Mass.

at 783. Those plaintiffs who recovered on the intentional

interference claim, Davignon, Gouveia, and Miller, all testified

that Hodgson was hostile toward them at roll call. All three

testified to his threatening remarks regarding their employment

status, and Davignon and Gouveia additionally stated that Hodgson

stared at them when referencing "troublemakers." The jury could

have reasonably construed such behavior as evidencing hostility.

2. Alleged inconsistency between § 1983 and
Massachusetts Civil Rights Act verdicts

Hodgson also contends that the jury's finding in his favor

on Morris's § 1983 individual capacity claim renders inconsistent

the verdict in favor of Morris on his MCRA claim.

Hodgson says first that, as to all plaintiffs, the jury

found him liable only in his official capacity and not in his

individual capacity. Further, with the exception of Morris, the

jury found that Hodgson did not violate the plaintiffs' rights under

the MCRA. Hodgson argues that these findings in his favor were

-39-
tantamount to finding that he was entitled to qualified immunity.

It follows, the argument goes, that the jury's verdict in favor of

Morris on his MCRA claim was erroneous and inconsistent with the

verdicts in Hodgson's favor under § 1983. Hodgson also argues that

the MCRA requires Morris to establish that Hodgson interfered with

his exercise or enjoyment of rights by "threats, intimidation or

coercion," and that Morris failed to prove the existence of one of

these additional elements.

The plaintiffs have two responses. First, they say that

a finding of qualified immunity is irrelevant to Morris's MCRA claim

because the claim is based on a separate incident in which Hodgson

was not acting under the "color of state law," a necessary

ingredient for qualified immunity. Specifically, they cite an

incident where Hodgson confronted Morris outside the correctional

facility and chastised him for not wearing a hat. If Hodgson was

not acting under the color of state law, they argue, he could not

avail himself of the qualified immunity defense. See Burke v. Town

of Walpole, 405 F.3d 66, 76 (1st Cir. 2005) (noting that qualified

immunity applies when a person's rights are infringed by state

actors)(emphasis added)(internal citation omitted). Second, the

plaintiffs argue that Morris proved Hodgson interfered with his

constitutional rights by "threats, intimidation, or coercion" by

presenting evidence that Hodgson, during the hat incident, addressed

Morris in an "aggressive, angry, and arrested" manner.

-40-
 We agree with the plaintiffs that the jury's verdicts are

indeed susceptible to a consistent, albeit strained, reading.

First, the jury could have, as the plaintiffs argue,

found that Hodgson was not acting under the color of state law and

thus was not shielded by qualified immunity. This theory is viable

because, even though the MCRA claim may be thought of as a state law

analogue to the federal § 1983 claim, and even though courts have

held the same qualified immunity standard applies to both laws, the

MCRA does not require state action.11

In resolving the "under color of law" question in the past

we have examined the totality of the circumstances, to determine

whether the "state actor's conduct occurs in the course of

performing an actual or apparent duty of his office, or...is such

that the actor could not have behaved in that way but for the

authority of his office." Martinez v. Colon, 54 F.3d 980, 986 (1st

Cir. 1995). Admittedly, a finding that Hodgson was not acting

"under the color of law" during this incident required the jury to

engage in mental gymnastics. For one thing, looked at in isolation

there is little evidence in the record about the hat incident, and

the facts that are present, such as the fact that the incident

occurred in the vicinity of the correctional facility, seem to cut

11
Compare "Whenever any person or persons, whether or not acting
under color of law...," G.L. c. 12, § 11H with "Every person, who
under color of any statute, ordinance, regulation, custom, or
usage, or any State or Territory or the District of Columbia...,"
42 U.S.C. § 1983.

-41-
against a finding of no state action. See Zambrana-Marrero v.

Suarez-Cruz, 172 F.3d 122, 125 (1st Cir. 1999)(noting location of

incident relevant to analysis). Nevertheless, the jury could have

found that Hodgson, when chastising Morris for not wearing his hat,

was not enforcing any official duties given that departmental

policy, according to testimony at trial, did not require Morris to

wear a hat. In the end, we accord the jury's conclusion respect,

especially since determining whether a defendant acted under color

of state law can often be "particularly elusive," id., and reminding

ourselves of our duty to read the jury's verdicts consistently if

possible. See Malm v. United States Lines Co., 269 F. Supp. 731,

731-32 (S.D.N.Y. 1967), aff'd, 378 F.2d 941 (2d Cir. 1967)

(recognizing jury's right to "idiosyncratic position provided the

challenged verdict is based on the evidence and the law").

As to Hodgson's second contention -- that Morris did not

establish "threats, intimidation or coercion," -- the jury could

have reasonably found that Hodgson's behavior towards Morris

amounted to intimidation, and thus that Morris met one of the three

additional requirements under the MCRA. The Massachusetts Supreme

Judicial Court has defined "intimidation" as "putting in fear for

the purpose of compelling or deterring conduct." Planned Parenthood

League of Mass. Inc. v. Blake, 417 Mass. 467, 474 (1994) (citations

omitted), cert. denied, 513 U.S. 868 (1994). Morris testified that

Hodgson, "spun the wheels of his car," before getting out of the car

-42-
and confronting him in an "aggressive, angry, and arrested" manner.

Morris also testified that Hodgson's behavior intimidated him.

Given that Morris held a position on the negotiating subcommittee,

the jury could have rationally concluded that Hodgson intended to

intimidate Morris in order to frustrate his associational rights.

Accordingly, we affirm the verdict in favor of Morris on his MCRA

claim.

E. Evidentiary Claims

1.Admission of state agency decision

The district court admitted into evidence a decision

rendered by the Massachusetts Labor Relations Commission (MLRC) --

a state administrative agency. The MLRC is charged with resolving

labor disputes by enforcing Massachusetts labor laws, and its

decision addressed whether the Bristol County Sheriff's Department

violated various sections of M.G.L. C. 150E.

Hodgson argues that the district court erred in admitting

the MLRC decision into evidence. He claims (1) the findings of fact

in the decision are inadmissible hearsay and (2) that even assuming

the decision is otherwise admissible, the district court should have

excluded it under Federal Rule of Evidence 403.

We review a district court's decision to admit evidence

for abuse of discretion. United States v. Jiminez, 419 F.3d 34, 43

(1st Cir. 2005). We find no abuse here.

-43-
 First, the decision was admissible under the public

records exception to the rule against hearsay. See, Fed. R. Evid.

803(8). The public records exception allows a district court to

admit public records and reports, in any form, of public agencies

setting forth,

in civil actions and proceedings...factual
findings resulting from an investigation made
pursuant to authority granted by law, unless
the sources of information or other
circumstances indicate a lack of
trustworthiness.

Id. (C). "The Supreme Court has interpreted this 'public records'

exception to the hearsay rule broadly to include both conclusions

and opinions of public offices and agencies." Patterson v. Mills,

64 Fed. Appx. 457, 462 (6th Cir. 2003)(citing Beech Aircraft Corp.

v. Rainey, 488 U.S. 153, 162 (1988)).

Hodgson relies on cases holding that judicial findings of

fact in a previous case are inadmissible under Rule 803(8)(c). See

e.g., Herrick v. Garvey, 298 F.3d 1184, 1192 (10th Cir. 2002); Milan

Express v. Averitt Express, 254 F.3d 966, 983, n. 25 (11th Cir.

2001). But the Massachusetts Labor Commission is not a court, and

its determinations are not stamped with the judicial imprimatur that

the findings of a court are. The Commission's findings are thus

less likely than those of a court to be given disproportionate

weight by a jury. See Herrick, 298 F.3d at 1192.

-44-
 Turning to Hodgson's Rule 403 objection, we conclude that

the district court did not abuse its discretion in admitting the

decision. Rule 403 permits the exclusion of relevant evidence "if

its probative value is substantially outweighed by the danger of

unfair prejudice." Fed. R. Evid. 403. We have emphasized that

"only rarely--and in extraordinarily compelling circumstances--will

we, from the vista of a cold appellate record, reverse a district

court's on-the-spot judgment concerning the relative weighing of

probative value and unfair effect." United States v. Flemmi, 402

F.3d 79, 86 (1st Cir. 2005)(internal quotation marks and citation

omitted); see also Paolitto v. Brown E.& C. Inc., 151 F.3d 60, 65

(2d Cir. 1998)(noting district court in best position to consider

how admission of agency report will impact trial).

The MLRC's decision was highly probative given both the

identity of the parties and the fact that the decision pertained to

the same incidents that gave rise to this federal action. The judge

was entitled to take that value into account. Moreover, the

admission of the decision did not unfairly prejudice Hodgson. As

we have stressed in the past, "virtually all evidence is

prejudicial...but it is only unfair prejudice against which the law

protects." United States v. Pinillos-Prieto, 419 F.3d 61, 72 (1st

Cir. 2005) (internal quotation marks and citation omitted) (emphasis

in original). Any potential for unfairness was mitigated by the

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district judge expressly instructing the jury that the MLRC's

decision involved a different issue and was not binding on the jury.

2. Decision to reopen to permit plaintiff to
present evidence of lost wages

After the close of evidence the district court allowed the

plaintiffs to reopen and present evidence of the amounts of their

lost wages. Although the plaintiffs had a witness available,

Hodgson stipulated to the amounts but objected to the court's

decision to reopen.

A district court's decision to reopen the record to permit

the introduction of additional evidence is reviewable for abuse of

discretion. United States v. Santana, 175 F.3d 57, 64 (1st Cir.

1999); Lussier v. Runyon, 50 F.3d 1103, 1113 (1st Cir. 1995). While

the court's decision turns on flexible and case-specific criteria,

among the factors the district court should consider are "whether

(1) the evidence sought to be introduced is especially important and

probative; (2) the moving party's explanation for failing to

introduce the evidence earlier is bona fide; and (3) reopening will

cause no undue prejudice to the non-moving party." Rivera-Flores

v. Puerto Rico Tel. Co., 64 F.3d 742, 746 (1st Cir. 1995)(citing

Joseph v. Terminix Int'l Co., 17 F.3d 1282, 1285 (10th Cir. 1994)).

There was no abuse of discretion in allowing the

additional evidence. First, the plaintiffs' evidence on lost wages

was highly probative, as it was the only evidence of the precise

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amount of compensatory damages. Compare Joseph, 17 F.3d at 1285

(noting that "new" evidence would have been cumulative). Second,

the plaintiffs appeared to have a bona fide explanation for failing

to introduce the evidence, namely "reasonably genuine surprise."

See Rivera-Flores, 64 F.3d at 747 (explaining that "it may amount

to an abuse of discretion for a trial court to decline to reopen in

circumstances where the movant has demonstrated 'reasonably genuine

surprise'")(emphasis added)(internal citation omitted). The

plaintiffs appear to have been operating under the assumption that

they could introduce damages at a later stage and expressed genuine

surprise once faced with the prospect of losing such an opportunity.

Compare Bradford Trust Co. v. Merrill, Lynch, Pierce, Fenner &

Smith, Inc., 805 F.2d 49, 52-53 (2d Cir. 1986)(affirming lower

court's denial of motion to re-open where lower court repeatedly

warned that moving party would need to present evidence on "key

issue"). Finally, because the plaintiff had a readily available

witness who would testify as to lost wages, see Rivera-Flores, 64

F.3d at 749 (noting defendant not unduly prejudiced where

"introduction of [] readily obtainable documentary evidence could

have entailed but minimal delay"), and because Hodgson would have

the opportunity to cross-examine this witness, the reopening did not

cause undue prejudice.

F. Attorneys Fees

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 The plaintiffs requested and the district court awarded

attorney's fees in the amount of $172,248.21 and expenses of

$2,481.75. Hodgson argues this award is excessive for three

reasons: (1) the limited dollar amount of the verdict in the

plaintiffs' favor; (2) the failure of the plaintiffs' claims for

invasion of privacy; and (3) the fact that the plaintiffs' fee

request contained "excessive, duplicative, and repetitive hours."

We deferentially review a district court's fee award and

thus give substantial respect to the court's informed discretion.

Coutin v. Young & Rubicam P.R., 124 F.3d 331, 336 (1st Cir. 1997);

Diaz-Rivera v. Rivera-Rodriguez, 377 F.3d 119, 124 (1st Cir. 2004)

('a reviewing court customarily defers to the trial judge, whose

intimate knowledge of the nuances of the underlying case uniquely

positions him to construct a condign award')(internal citation

omitted). Accordingly, we will disturb such an award only if the

district court has manifestly abused its discretion or made a

mistake of law. Id. at 124. Such an abuse or mistake may occur if

a court, in arriving at an award, ignores a material factor

deserving significant weight, relies upon an improper factor, or

relies solely upon proper factors but mistakenly weighs those

factors. Coutin, 124 F.3d at 336.

Here, the district court did not abuse its discretion.

First, although the jury only awarded the plaintiffs' aggregate

damages of $17,980 based primarily on the § 1983 claims, the Supreme

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Court has rejected "the proposition that fee awards under § 1988

should necessarily be proportionate to the amount of damages a civil

rights plaintiff actually recovers." City of Riverside v. Rivera,

477 U.S. 561, 574 (1986)(plurality opinion). Further, while the

trial result is a "preeminent consideration in the fee-adjustment

process," Coutin, 124 F.3d at 338, -- all the plaintiffs were

equally unsuccessful as to one of their four shared claims -- we

have stressed that a plaintiff's claim-by-claim success is only one

of the factors to be considered when examining the results obtained.

Id. Also significant is "the societal importance of the right which

has been vindicated." Id. The district court emphasized that the

plaintiffs were victorious on the civil rights claim that "propelled

this litigation for more than five years."

Finally, although excessive or unproductive time spent is

not compensable, see, e.g., Lipsett v. Blanco, 975 F.2d 934, 937

(1st Cir. 1992), in this case the district court "carefully

examined" Hodgson's claims of excessiveness and found the

plaintiffs' fee schedule, prepared according to the accepted

lodestar method, to be justified. In the end, we see no reason to

question the district court's judgment on this factor, or any of the

other factors, and accordingly affirm the fee award.

For the foregoing reasons, the judgment is affirmed.

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