Murray v. Menino

USCA1 Opinion












[Not For Publication]
United States Court of Appeals United States Court of Appeals
For the First Circuit For the First Circuit
____________________

No. 96-1848

JAMES A. MURRAY,

Plaintiff, Appellant,

v.

CITY OF BOSTON,

Defendant, Appellee.

____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge] ___________________

____________________

Before

Stahl and Lynch, Circuit Judges, ______________

and Woodlock,* District Judge. ______________

____________________

Mark S. Bourbeau, with whom Bourbeau and Bourbeau Bonilla & __________________ __________________________________
Tocchio were on brief, for appellant. _______

Krisna M. Basu, Assistant Corporation Counsel, with whom Merita _______________ ______________________________ ______
A. Hopkins, Corporation Counsel, was on brief, for appellee. __________ ___________________
____________________
December 17, 1996
____________________
____________________
*Of the District of Massachusetts, sitting by designation.


















PER CURIAM. Plaintiff James Murray appeals from PER CURIAM

the entry of summary judgment on his employment-related claim

against the City of Boston. Murray, a former city employee,

brought claims against the City of Boston and Mayor Menino

under 42 U.S.C. 1983 and the Massachusetts Civil Rights

Act, Mass. Gen. L. ch. 12, 11I ("MCRA").

Murray alleges that, in 1992, he was terminated

from his position as Executive Assistant to the Commissioner

for Elderly Affairs, and that, in 1994, he was constructively

terminated from his subsequent position as a reporter for

Boston Seniority, a Commission for Elderly Affairs __________________

publication. Murray resigned from the latter position in

March 1994. Murray alleges that these employment actions

were punishment for expressing his political beliefs,

specifically for running for City Council in 1991 and for

Mayor in 1993 against the incumbent Mayor of Boston.

The district court granted summary judgment for the

defendants on all claims. Murray appeals only from the

judgment against him as to the City. Because Murray has not

adduced evidence sufficient to establish municipal liability

under 1983, we affirm the district court's grant of summary

judgment on that claim.1 As Murray has failed to show that

____________________

1. Defendant also argues that Murray was not constructively
terminated and that, on the merits, he has not shown any
retaliation, much less for the expression of his political
views. We find it unnecessary to reach these arguments but
note that they appear well taken.

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he was subject to any threats, intimidation, or coercion, a

necessary element of claims under the MCRA, we also affirm

the grant of summary judgment on the state law claim.

In order to make out a claim of municipal liability

under 1983, Murray must show that the "execution of a

government's policy or custom, whether made by lawmakers or

by those whose edicts or acts may fairly be said to represent

official policy, inflicts the injury." Monell v. New York ______ ________

Dep't of Social Servs., 436 U.S. 658, 694 (1978). The theory ______________________

of respondeat superior has no place in such claims. Id. at ___

691. The "custom" on which liability is premised must be "so

permanent and well settled as to constitute a 'custom or

usage' with the force of law." Id. (quoting Adickes v. S.H. ___ _______ ____

Kress Co., 398 U.S. 144, 167-68 (1970)(internal quotation __________

marks omitted)). Murray does not contend that there is a

formal act or written policy which embodies the so-called

policy of retaliation. Nor does he contend that "anyone in

city government ever promulgated, or even articulated, such a

policy." City of St. Louis v. Praprotnik, 485 U.S. 112, 128 __________________ __________

(1988). Rather, he says that there is an informal policy or

custom of punishing city employees who express political

views different than those of the administration.

This court had said that there are "two

requirements for plaintiffs to meet in maintaining a 1983

action grounded upon an unconstitutional municipal custom":



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First, the custom or practice must be
attributable to the municipality. . .
.[I]t must be so well-settled and
widespread that the policymaking
officials of the municipality can be said
to have either actual or constructive
knowledge of it yet did nothing to end
the practice. Second, the custom must
have been the cause of and the moving
force behind the deprivation of
constitutional rights.

Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir.)(internal _________ ______

citations omitted), cert. denied, 493 U.S. 820 (1989). ____________

On the first point, Murray naturally relies on his

own employment history, which need not be detailed here, to

support his claim that there is a "well-settled and

widespread" custom. But evidence of a single occurrence is

usually insufficient, in and of itself, to establish a

municipal "custom and usage." St. Hilaire v. City of ____________ ________

Laconia, 71 F.3d 20, 29 (1st Cir. 1995), cert. denied, 116 S. _______ ____________

Ct. 2548 (1996); Mahan v. Plymouth County House of _____ ____________________________

Corrections, 64 F.3d 14, 16-17 (1st Cir. 1995). ___________

Murray tries to buttress his claim that there is a

"custom" by pointing to three lawsuits filed in the United

States District Court for the District of Massachusetts and

one complaint filed before the Massachusetts Commission

Against Discrimination by present or former city employees.2


____________________

2. We assume arguendo that the deposition transcripts ________
proffered by Murray constitute admissible evidence. The
City argues that they are inadmissible hearsay. See Garside ___ _______
v. Osco Drug, Inc., 895 F.2d 46 (1st Cir. 1990). _______________

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There is considerable doubt that three individual law suits

and one administrative complaint, even if each made

allegations comparable to Murray's, would suffice to show a

custom with the force of law. But these other disputes are

not comparable to the present action and do not involve

similar allegations of retaliation because of political

opposition to the incumbent administration. None of the

complaining individuals was, from the evidence presented, a

candidate for office. Even if Murray's complaint is read to

allege a broader theory of retaliation, encompassing more

than just retaliation against city employees who run for

office against incumbent city officials, the other fact

settings he proffers do not support his claim that there is

such a custom or policy.

These claims involve diverse city agencies, and

different city officials were responsible for the employment

actions at issue. One claimant makes allegations of denial

of due process in how his job was terminated, one alleges

termination following her criticism of her employing agency,

one alleges sexual harassment, and one alleges retaliation

for speaking out against sexual harassment. Murray makes no

attempt to link these various claims to a central

policymaker. These disparate facts do not fall easily under

even the broader category of a "custom" of punishing city





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employees for expression, in any form, of political views

contrary to those of the city administration.

Such a protean view as that offered by Murray would

render the "custom" requirement meaningless. In contrast

with the showing made here, this court has credited proof,

such as that offered in Bordanaro, of uncontroverted evidence _________

from witnesses with first hand knowledge of a practice of

particular city officials who repeatedly engaged, over a

period of time, in exactly the same sort of unconstitutional

behavior. See Bordanaro, 871 F.2d at 1156. As we said in ___ _________

Mahan, plaintiff "has not brought his case near the Bordanaro _____ _________

umbrella, let alone under it." Mahan, 64 F.3d at 16. _____

To establish a claim under the MCRA, Mass. Gen. L.

ch. 12, 11I, plaintiff must prove that the alleged

interference or attempted interference with rights was by

"threats, intimidation or coercion." Mass. Gen. L. ch. 12,

11H; Swanset Dev. Corp. v. City of Taunton, 668 N.E.2d 333, __________________ _______________

337 (Mass. 1996). The Supreme Judicial Court has said that:

"[t]hreat" in this context involves the
intentional exertion of pressure to make
another fearful or apprehensive of injury
or harm. "Intimidation" involves putting
in fear for the purpose of compelling or
deterring conduct. . . . [A] definition
of coercion [is] "the application to
another of such force, either, physical
or moral, as to constrain him to do
against his will something he would not
have done."





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Planned Parenthood League v. Blake, 631 N.E.2d 985, 990 ___________________________ _____

(Mass.), cert. denied, 115 S. Ct. 188 (1994) (internal _____________

citations omitted). Murray presents no evidence from which a

court could conclude that he was subjected to "threats,

intimidation, or coercion" of this nature. Therefore, his

state law claim fails on the merits as well.

The judgment of the district court granting summary

judgment to the defendant on all claims is affirmed. ________





































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