Buntin v. City of Boston

United States Court of Appeals
For the First Circuit

No. 15-1667

JEANNETTE BUNTIN,

Plaintiff, Appellant,

v.

CITY OF BOSTON; JAMES MCGONAGLE; SCOTT ALTHER,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Kayatta, Stahl, and Barron,
Circuit Judges.

W.Kendall, with whom Law Office of W.Kendall was on brief,
for appellant.
Nicole M. O'Connor, Assistant Corporation Counsel, with whom
Eugene L. O'Flaherty, Corporation Counsel, and City of Boston Law
Department were on brief, for appellees.

December 29, 2015
 STAHL, Circuit Judge. Jeannette Buntin's late father,

Oswald Hixon, was formerly employed as a mechanic by the City of

Boston ("City"). Buntin, proceeding as the administratrix of

Hixon's estate, brought suit alleging that the City and Hixon's

supervisors, James McGonagle and Scott Alther, discriminated

against Hixon on the basis of his race and retaliated against him

by terminating his employment.1 Concluding that Buntin had not

pled facts sufficient to support one claim and had failed to timely

exhaust the administrative prerequisites necessary to bring suit

on another claim, the district court dismissed Buntin's complaint.

After careful review, we AFFIRM in part and REVERSE in part.

I. Facts and Background

We set forth the facts as alleged in Buntin's complaint.

Hixon, who is black, was hired by the City in 2002 to work as a

mechanic at the City's public works facility. At all relevant

times, Hixon's immediate supervisors were Alther and McGonagle,

both of whom are white. In 2007, Hixon failed a random drug and

alcohol test and was put on probation and required to undergo

counselling. Hixon protested his selection for the test, which he

suggested was made on the basis of race.

Roughly four years later, on Friday, February 4, 2011,

Alther and McGonagle issued Hixon a written warning for bringing

1 At points, we refer to the City, Alther, and McGonagle
collectively as the "Defendants."

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his personal vehicle into a City garage for repairs in violation

of a City policy. Hixon protested the warning "vociferously" and

pointed out to Alther and McGonagle that white employees had

violated the same policy (and other City policies in place at the

time) without consequence.

The following Monday, February 7, 2011, Hixon returned

to work and was informed that he had been suspended. Then, on

February 10, Hixon was notified that he had been terminated based

on a purported violation of the City's drug and alcohol policy, an

explanation that the complaint alleges was both untrue and merely

a pretext for unlawful discrimination and retaliation.2

In January 2013, Hixon filed an application for

unemployment benefits with the Massachusetts Department of

Unemployment Assistance ("DUA"). Alther and McGonagle appeared at

a series of ensuing hearings and allegedly testified falsely that

Hixon had been under the influence of controlled substances at

work and had refused to submit to a drug and alcohol test.3 Soon

2 The complaint contains a number of allegations relating
to Hixon's membership in a union of City employees and the union's
failure to pursue grievances that he filed relating to the 2007
and 2011 incidents. Because Hixon did not bring suit against the
union, we view these allegations as relevant only to provide
context to Hixon's claims against the Defendants.

3 Although not in the record before us, Buntin
represented at oral argument that Hixon was vindicated in an appeal
of the DUA proceedings before the Boston Municipal Court, which
awarded him benefits and found that he had not been under the
influence while at work.

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thereafter, Hixon applied for reinstatement with the City, but was

not offered a job.

Thereafter, on December 13, 2013, Hixon filed a charge

with the Massachusetts Commission Against Discrimination ("MCAD"),

which dismissed his charge as untimely.4 Hixon passed away in

2014, and Buntin was appointed as the administratrix of his estate.

Buntin brought this lawsuit on behalf of Hixon's estate

on February 6, 2015 in Massachusetts Superior Court, asserting a

total of seventeen claims against the Defendants under both state

and federal law. While the complaint is confusing at times,

Buntin's federal claims appear to arise under 42 U.S.C. §§ 1981

("Section 1981") and 1983 ("Section 1983"). As we read it, the

Section 1981 claim alleges that the Defendants discriminatorily

terminated Hixon on the basis of race and, separately, retaliated

against him by suspending him and terminating his employment for

protesting his discriminatory treatment.5 The Section 1983 claim

4 Later, on January 11, 2014, Hixon filed a second MCAD
charge premised on the allegedly untrue testimony of Alther and
McGonagle at the January 2013 DUA hearings. This charge too was
dismissed as untimely.

5 In addition, one could perhaps tease out from the
complaint a Section 1981 claim premised on the Defendants' creation
of a hostile work environment, but we find any such claim to be
both inadequately pled and entirely undeveloped on appeal. See,
e.g., Edwards v. Prime, Inc., 602 F.3d 1276, 1300 (11th Cir. 2010)
(noting that a hostile work environment claim requires the
plaintiff to allege that the harassment endured was "severe or
pervasive enough to alter the terms and conditions of employment
and create a hostile or abusive working environment").

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appears to be premised on the same allegations of discrimination

and retaliation, as well as the City's failure to provide Hixon

with a "name-clearing hearing" after Alther and McGonagle's

testimony at the 2013 DUA hearings impugned his reputation. The

Defendants promptly removed the suit to the district court and

then moved to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6).

In ruling on the motion to dismiss, the district court

considered only the federal claims. Buntin v. City of Boston, No.

15-10556-RGS, 2015 U.S. Dist. LEXIS 60561 (D. Mass. May 8, 2015).

The district court concluded that the Section 1981 claim must be

dismissed because Buntin failed to exhaust her administrative

remedies by filing a timely charge of discrimination with the MCAD

before bringing suit. Id. at *10. With respect to the Section

1983 claim, the district court concluded that it too must be

dismissed because Buntin failed to plead facts sufficient to

support the claim. Id. at *10-11.

II. Discussion

We review the district court's dismissal of a complaint

for failure to state a claim de novo. Cardigan Mountain Sch. v.

N.H. Ins. Co., 787 F.3d 82, 84 (1st Cir. 2015). In doing so, we

assume the truth of Buntin's factual allegations and draw all

reasonable inferences in her favor. Id. at 87. To survive a

motion to dismiss, the complaint must contain sufficient factual

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matter, accepted as true, to state a claim to relief that is

"plausible on its face." Id. at 84 (quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)). We are not wedded to the district

court's reasoning; rather, we may affirm the dismissal of a claim

on any basis made evident by the record. Rocket Learning, Inc. v.

Rivera-Sánchez, 715 F.3d 1, 8 (1st Cir. 2013).

A. Section 1981

Section 1981 provides, in relevant part, that "[a]ll

persons within the jurisdiction of the United States shall have

the same right . . . to make and enforce contracts . . . and to

the full and equal benefit of all laws and proceedings . . . as is

enjoyed by white citizens . . . ." 42 U.S.C. § 1981(a). Buntin's

complaint alleges that the Defendants violated Section 1981 by

suspending Hixon on February 7, 2011, and terminating him on

February 10, 2011, both on account of his race and as retaliation

for his having complained that his treatment on February 4, 2011

was discriminatory. As we have said, the district court dismissed

this claim solely on the grounds that Hixon failed to file a charge

of discrimination with the MCAD in a timely manner prior to

bringing suit.

In doing so, however, the district court appears to have

conflated the administrative exhaustion requirements imposed by

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq., with Section 1981, which has no such exhaustion requirement.

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Compare Aly v. Mohegan Council, Boy Scouts of Am., 711 F.3d 34, 41

(1st Cir. 2013) (noting that a Title VII plaintiff must file a

charge of discrimination with the MCAD within 300 days of the

alleged unlawful act prior to bringing suit) (citing 42 U.S.C.

§ 2000e-5(e)(1)), with Fane v. Locke Reynolds, LLP, 480 F.3d 534,

539 (7th Cir. 2007) (observing that Section 1981 does not require

administrative exhaustion). Thus, the district court erred when

it imputed an administrative exhaustion requirement to Section

1981 and dismissed Buntin's claim for failure to comply with that

requirement.

To the Defendants' credit, they do not argue that the

district court's dismissal should be affirmed on the basis of

administrative exhaustion. Rather, they urge that we affirm either

because the Section 1981 claim was not brought within its statute

of limitations, or because the claim was premised merely on

conclusory allegations. We reject both arguments.

As an initial matter, we find that Buntin's Section 1981

claim was brought within the applicable four-year statute of

limitations. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369,

382 (2004). Hixon was issued a written warning on February 4,

2011 for bringing his personal vehicle into a City garage for

repairs, discipline that he protested on grounds that it was

applied to him in a discriminatory manner. It was not until

February 7, 2011, however, that Hixon returned to work and learned

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that he had been suspended, and it was not until February 10, 2011

that he was fired. These dates are important because Buntin filed

her lawsuit almost exactly four years later on February 6, 2015.

The Defendants insist that the statute of limitations

began to run on February 4, 2011, when Hixon received a written

warning. But, claims for discrimination and retaliation accrue

when the alleged unlawful act "has a crystallized and tangible

effect on the employee and the employee has notice of both the act

and its invidious etiology." Shervin v. Partners Healthcare Sys.,

Inc., 804 F.3d 23, 33 (1st Cir. 2015). Here, Hixon did not learn

of his suspension and termination, the alleged unlawful acts, until

February 7 and 10, respectively. Therefore, Buntin's lawsuit,

launched just as time was about to expire on February 6, 2015,

beat the statute of limitations buzzer (albeit just barely).

The Defendants next argue that Buntin's complaint should

be dismissed because it relies solely on conclusory allegations.

We disagree. Buntin's complaint sets forth, in fairly significant

detail, the specific facts and circumstances surrounding the

events of February 4 through 10, 2011, during which time Hixon was

allegedly disciplined in an unlawfully discriminatory manner, then

suspended and terminated discriminatorily and in retaliation for

having protested his disparate treatment. These allegations are

"specific and factual," and they plausibly suggest that Buntin is

entitled to relief on a Section 1981 claim for discriminatory

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termination and retaliation. Cardigan Mountain Sch., 787 F.3d at

84, 87.

In sum, because the district court erred by imposing an

administrative exhaustion requirement where none exists, and

because we reject the alternative bases for dismissal proffered by

the Defendants, we REVERSE the district court's dismissal of

Buntin's Section 1981 claim.

B. Section 1983

Section 1983 provides a cause of action for the

"deprivation of any rights, privileges, or immunities secured by

the Constitution and laws" by any person acting under color of

state law. 42 U.S.C. § 1983. Buntin's Section 1983 claim is

subject to a three-year statute of limitations. See Poy v.

Boutselis, 352 F.3d 479, 483 (1st Cir. 2003) (citing Mass. Gen.

Laws ch. 260, § 2A and explaining that Section 1983 "borrows" state

statutes of limitations for personal injury claims).

As we have said, Buntin's complaint is unclear at points.

Nevertheless, we discern two possible bases for the Section 1983

claim: (1) Hixon's suspension and termination; and (2) the City's

failure to give Hixon a "name-clearing hearing" after Alther and

McGonagle impugned his character by allegedly testifying falsely

at Hixon's DUA hearings in January 2013. We conclude, however,

that under either theory, dismissal is required.

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 To the extent that the Section 1983 claim is premised on

Hixon's alleged unlawful suspension and termination, any such

claim was indisputably brought more than three years after it

accrued. To reiterate the point, Hixon's suspension and

termination took place in February 2011, and Buntin's complaint

was filed some four years later.

On the other hand, a Section 1983 claim premised on the

January 2013 testimony of Alther and McGonagle would have been

brought within the three-year statute of limitations. However,

any such claim would fail on its merits. "[W]here a public-sector

employer creates and disseminates a false and defamatory

impression about an employee in connection with the employee's

discharge. . . . the Constitution's due process protections require

the employer to provide the employee with an opportunity to dispute

the defamatory allegations." Wojcik v. Mass. State Lottery Comm'n,

300 F.3d 92, 103 (1st Cir. 2002) (citations omitted). Indeed, the

"failure to provide an adequate name-clearing forum is actionable

under [Section 1983]." Id.; see also Burton v. Town of Littleton,

426 F.3d 9, 14-15 (1st Cir. 2005). Nevertheless, a Section 1983

claim premised on the failure to afford a name-clearing hearing

requires that the employee satisfy five elements: (1) the alleged

defamatory statement must seriously damage the employee's standing

and association in the community; (2) the employee must dispute

the statement as false; (3) the statement must have been

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intentionally publicized by the government; (4) the stigmatizing

statement must have been made in conjunction with an alteration of

the employee's legal status, such as the termination of his

employment; and (5) the government must have failed to comply with

the employee's request for a name-clearing hearing. Wojcik, 300

F.3d at 103 (citations omitted).

As we must, we assume the truth of Buntin's factual

allegations and we draw all reasonable inferences in her favor.

Cardigan Mountain Sch., 787 F.3d at 87. Yet, even after doing so,

the complaint fails to allege any facts whatsoever establishing

the third, fourth, and fifth elements of a Section 1983 claim

premised on the denial of a name-clearing hearing. As an initial

matter, there is no allegation that the City publicized the

defamatory statements beyond the DUA hearings at which they were

made. What is more, the complaint itself establishes that the

alleged defamatory statements were not made in conjunction with an

alteration in Hixon's employment status. Rather, they were made

some two years after his termination at a hearing regarding Hixon's

entitlement to unemployment benefits. Perhaps most importantly,

the complaint does not suggest that the City denied Hixon a name-

clearing hearing, or that Hixon even requested one in the first

place.

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 Thus, whether premised on Hixon's 2011 termination or on

the testimony of Alther and McGonagle at the 2013 DUA hearings,

Buntin's Section 1983 claim was properly dismissed.

III. Conclusion

For the reasons we have described, dismissal of the

Section 1983 claim is AFFIRMED, dismissal of the Section 1981 claim

is REVERSED, and the case is REMANDED to the district court for

further proceedings consistent with this opinion.6 Costs are taxed

in favor of the plaintiff-appellant Jeannette Buntin.

6 Buntin's complaint and brief make passing reference to
Title VII, which prompted the City in its brief to dispute the
viability of any potential Title VII claim. Although it is far
from clear that Buntin is in fact pursuing a Title VII claim, we
note that any such claim is foreclosed based on Hixon's failure to
file a charge of discrimination with the MCAD within 300 days of
his suspension and termination. See Aly, 711 F.3d at 41 ("Failure
to exhaust [the] administrative process [of filing an MCAD charge]
'bars the courthouse door.'" (quoting Jorge v. Rumsfeld, 404 F.3d
556, 564 (1st Cir. 2005))).

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