Alston v. Town of Brookline, MA

United States Court of Appeals
For the First Circuit

No. 20-1434

GERALD ALSTON,

Plaintiff, Appellant,

v.

TOWN OF BROOKLINE ET AL.,

Defendants, Appellees,

JESSE MERMELL, in her individual and official capacities,

Defendant.

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

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

Before

Lynch and Selya, Circuit Judges,
and Laplante,* District Judge.

Brooks A. Ames, with whom Brookline Justice League was on
brief, for appellant.
Sophia Hall, Robyn Maguire, Alison Casey, and Nutter
McClennen & Fish LLP on brief for Lawyers for Civil Rights, The
Boston Society of Vulcans of Massachusetts, and The Charles
Hamilton Houston Institute for Race and Justice, amici curiae.
Joseph A. Padolsky, with whom Patricia Correa, Douglas I.
Louison, and Louison, Costello, Condon & Pfaff, LLP were on brief,
for appellees.

* Of the District of New Hampshire, sitting by designation.
May 7, 2021
 SELYA, Circuit Judge. A voicemail message, containing

a crude and highly charged racial slur, sparked a controversy that

rocked the tony town of Brookline, Massachusetts (the Town). On

December 1, 2015, the controversy spilled over into the federal

district court: plaintiff-appellant Gerald Alston, the recipient

of the voicemail message, filed this civil rights action alleging

violations of 42 U.S.C. §§ 1981, 1983, and 1985. The operative

complaint named a long list of defendants, including (as relevant

here) the Town, the Brookline Board of Selectmen (the Board), the

Town's counsel and human resources director, and select members of

the Board (Nancy Daly, Betsy DeWitt, Ben Franco, Kenneth Goldstein,

Bernard Greene, Nancy Heller, Jesse Mermell, and Neil Wishinsky).1

All of the individual defendants were sued in both their personal

and official capacities.

1 Alston also named Stanley Spiegel, a Town Meeting member,
and Local 950, International Association of Firefighters (the
Union) as defendants. The district court dismissed the claims
against Spiegel with prejudice. See Alston v. Town of Brookline,
No. 15-13987, 2017 WL 1536213, at *1 (D. Mass. Apr. 26, 2017).
The court later entered summary judgment in favor of the Union.
Alston v. Town of Brookline, No. 15-13987, 2020 WL 1615408, at *5
(D. Mass. Apr. 2, 2020).

Alston appealed both of these orders. We recently affirmed
the order of dismissal as to Spiegel. See Alston v. Spiegel, 988
F.3d 564, 569 (1st Cir. 2021) [No. 20-1434, slip op. at 3].
Alston's claims against the Union, which raise a distinct set of
issues, will be resolved in a separate and subsequent opinion.
See, e.g., United States v. Santiago-Rivera, 744 F.3d 229, 231 n.1
(1st Cir. 2014).

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 The defendants denied liability and — following

discovery, the dismissal of the claims against Mermell, and other

pretrial skirmishing — moved for summary judgment. The district

court granted their motions. See Alston v. Town of Brookline, No.

15-13987, 2020 WL 1649915, at *5 (D. Mass. Apr. 2, 2020). This

timely appeal ensued.

We previously noted that, due to the complexity of

Alston's appeal, we would resolve it in a series of separate

opinions. See Alston v. Spiegel, 988 F.3d 566, 569 n.1 (1st Cir.

2021). In this opinion, we address the appeal only insofar as it

relates to the district court's grant of summary judgment in favor

of the above-enumerated defendants. For the reasons discussed

below, we affirm in part, vacate in part, and remand for further

proceedings. Withal, we retain appellate jurisdiction over those

aspects of the appeal not yet adjudicated.

I. BACKGROUND

We draw a representative sampling of the facts from the

amplitudinous summary judgment record. Alston, a black man, began

working for the Brookline Fire Department (the Department) in 2002

as a firefighter. During the spring of 2010, he sustained a work-

related injury that temporarily put him out of work. On May 30,

2010, Paul Pender, then a lieutenant in the Department and Alston's

supervisor, called Alston to check on his well-being. When Alston

did not pick up the telephone, Pender left a voicemail, which

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concluded with Pender using a racial slur ("f.....g n....r"),

apparently in reference to Alston.

Unsure about how to proceed, Alston sought the advice of

senior firefighters. He also played the voicemail for the

Department's chief of operations, Michael O'Reilly. O'Reilly did

not report the incident to the then-Chief of the Department (Peter

Skerry) but instead agreed with Alston that Alston would speak

with Pender directly.

Before Alston could reach out to Pender, Pender learned

through another firefighter that Alston had told O'Reilly about

the voicemail. On July 8, 2010, Pender called Alston and assured

him that the racial slur was not intended for Alston. Rather, it

was intended for "a young black gang-banger" who had cut off Pender

in traffic. Offended by Pender's explanation, Alston abruptly

ended the call.

The next time Alston spoke to Pender was on July 10,

2010. Pender again tried to explain the context in which he had

uttered the racist comment. He added that reporting the voicemail

to O'Reilly "was the stupidest thing [Alston] could have ever

done." He then asked Alston, "Are you after my job or something?"

Alston filed a written complaint with Chief Skerry on

July 28, 2010. At a meeting two days later attended by Alston,

his wife, Skerry, O'Reilly, and then-Town counsel Jennifer Depazo,

Alston played the voicemail. In response, Skerry determined that

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Pender's language constituted a fireable offense and informed

Alston that he would advocate for Pender's termination. Alston

replied that he did not want Pender to lose his job. Later that

day, Skerry transferred Pender to another station.

In August of 2010, the Board met to discuss possible

disciplinary action vis-à-vis Pender. Chief Skerry initially

recommended a suspension of four tours of duty for Pender, but the

Board rejected that recommendation and imposed a negotiated two-

tour suspension. This decision took into account Pender's prior

record at the Department and his expression of remorse. Along

with the suspension, Pender made certain other concessions: he

waived his right of appeal, committed to undergo anger management

and diversity training and mediation with Alston, and consented to

permanently transfer out of the station where Alston worked.

Alston was not called as a witness before the Board.

Roughly two weeks after the effective date of Pender's

suspension, the Town promoted Pender to temporary fire captain.

In doing so, the Town used Pender's greater seniority to break a

tie with another firefighter, citing past practice.

On September 17, 2010 (in anticipation of Alston's post-

injury return to work), Chief Skerry met with the Department's

officers. He reminded them that the Town has zero tolerance for

either discrimination or retaliation.

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 A week after that meeting, Pender was given a medal at

the White House for his heroism in connection with a 2008 fire.

Two days after Alston's return to work, Joe Canney, a fellow

firefighter, wrote (on a password-protected union blog to which

only union members had access) about a "faceless coward" who was

marring Pender's receipt of the award. Inferring that Canney was

speaking about him, Alston complained to Skerry, who said that he

would request deletion of the post. The post was subsequently

deleted.

In October of 2010, Alston told Skerry that he was

disappointed with the Town's coddling of Pender. In response,

Skerry wrote to Alston, suggesting that he seek mental health

counseling. On October 14, Alston began seeing a counselor, and

he was subsequently excused from work for days at a time for

evaluation and treatment of workplace stress. On November 24,

Alston became agitated at work as a result of a "routine scheduling

decision." Taken to a local hospital, he tested positive for

cocaine.

Alston has presented evidence showing that, in February

of 2011, Pender again berated him for reporting the voicemail.

Pender allegedly told Alston that he had "destroyed [Pender's]

life and ruined [Pender's] career."

Chief Skerry retired later that year, and the Board

appointed Paul Ford as the new Chief. In early 2012, Ford met

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with Alston to talk about how things were between Alston and

Pender. Alston told Ford that he wanted to move on from the

voicemail incident but that Pender refused even to shake his hand.

Alston was injured in a motor vehicle accident in May of

2012. That month, Alston filed a discrimination charge with the

Massachusetts Commission Against Discrimination (MCAD). In

November of 2012, he amended the charge to incorporate a claim for

retaliation. Specifically, he alleged that he had been "shunned,

isolated, and mocked by his fellow firefighters at the direction

and instruction of his superiors," that these conditions had been

worsening over the past three years, and that he had repeatedly

complained about his plight without any intervention by

management. Spurred by Alston's charge, the Town human resources

director, Sandra DeBow, launched an investigation and concluded

that Alston's allegations were without merit.

On May 1, 2013, Chief Ford recommended Pender's

permanent promotion. The Board acquiesced, making permanent

Pender's promotion to captain. By the time of this promotion,

Alston had noticed that firefighters were shunning him, ignoring

him, leaving the common areas as soon as he entered, and leaving

him out of family social events (to which he previously had been

invited). Alston has also presented evidence showing that Pender

used his new position to tell recruits that Alston's lawsuit was

"a bunch of lies." Pender's account is different: he testified

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that he talked with five recruits "who were all minorities" and

that all of them were "shocked . . . that something so benign is

going on seven and a half years later."

On June 17, 2013, Alston filed suit on his MCAD charge

in the state superior court. Two days later, a Town human

resources official, Leslea Noble, notified Alston that she wished

to interview him about complaints that he had voiced to coworkers.

Alston did not respond. When Alston's state-court suit became

public, the Town's counsel, Joslin Murphy, reminded Pender of his

non-retaliation obligations.

In September of 2013, one of the selectwomen, Nancy Daly,

circulated a letter from a retired black firefighter. The letter

criticized Alston and asserted that it was insulting to all

firefighters for Alston to claim that he could not count on fellow

firefighters to save him in a life-threatening situation.

It is undisputed that Alston and Pender had a

conversation on October 31, 2013. Viewing that incident in the

light most favorable to Alston, see Houlton Citizens' Coal. v.

Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999), he approached

Pender, saying that his lawsuit was not personal and had nothing

to do with Pender. The lawsuit, he said, was about the Town

respecting him. Pender again apologized for the voicemail message

but then admonished Alston, stating that the lawsuit was dragging

his name through the mud and causing pain to his family. Pender

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also repeatedly declared that the allegations in the complaint

were lies.

At the end of his shift on December 19, 2013, Alston

found the word "Leave" written in the dust on the door next to the

seat on the firetruck to which he had been assigned. He called

this display to the attention of two coworkers, Ryan Monahan and

Cormac Dowling. Chief Ford was informed of the incident, and he

reported it to both DeBow and Murphy. Three days later, Alston

referred to the incident in front of coworkers and stated that,

"people go postal over matters like this." That night, Ford

interviewed Alston about his statement and — concerned about

Alston's mental state — placed him on paid leave pending a

psychiatric evaluation. From that point forward, Alston never

resumed work as a firefighter.

Ford immediately arranged to meet with DeBow and Murphy,

relating that Alston had spoken to him about the incident in a

"cordial and calm manner." In his view, Alston was not a threat

to his coworkers. He therefore opposed the issuance of a "stay-

away order" against Alston. Consistent with Ford's position, both

Monahan and Dowling said that they did not feel threatened by

Alston's comment. Another firefighter recalled Alston saying that

he was not the type of person who would carry out a workplace

shooting.

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 Yet, Chief Ford did not have the last word: on December

27, acting at the direction of the Town's hierarchs, he ordered

Alston to stay off the Town's property due to the "going postal"

comment. Alston's later attempt to make clear that he had never

made a comment about shooting the men in the station fell on deaf

ears.

The Town soon circulated a flyer to its police officers.

The flyer included a color photograph of Alston and the type of

car he drove, listing his name, address, date of birth, and height.

It claimed that Alston had "made statements referring to 'going

postal,' obtaining a firearm and returning to a firehouse to cause

harm." There is no evidence in the record to substantiate the

allegations in the flyer beyond the "going postal" comment.

On January 6, 2014, Alston was examined by a psychiatrist

chosen by the Town (Dr. Andrew Brown). Dr. Brown lost little time

in communicating to Chief Ford and DeBow that Alston did not pose

a threat to himself or others.

On January 13, DeBow notified Alston that she was

investigating both the "Leave" incident and the "going postal"

comment as possible violations of Town policies. She also

confirmed that he had been placed on paid leave pending completion

of those investigations. She requested that Alston contact her to

arrange an interview, but Alston did not respond. At the same

time, DeBow requested additional pictures of the "Leave" message

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because the picture Alston had submitted reflected glare that

"obscured some of the letters" and, thus, complicated any

handwriting analysis. Alston did not comply and — on May 14 —

DeBow reported that she could not conclude that the "Leave" message

was discriminatory or retaliatory because the Town's handwriting

expert could not identify the author. DeBow also speculated that

a nearby fraternity might have written the message; although "there

[was] no evidence to establish that this [fraternity] scenario"

occurred, the "possibility [could not] be discounted."

That same day, the Town nonetheless suspended Alston for

two tours for violating its workplace safety policy. It also

removed him from paid administrative leave and placed him on paid

sick leave. Alston's placement on sick leave stemmed from concerns

about his mental health. Both Dr. Brown and Alston's own

psychiatrist (Dr. Michael Kahn) worried that Alston might not be

mentally fit to perform his firefighter duties. In the end,

Alston's eventual return to work was conditioned on receipt of

appropriate mental health treatment, reevaluation by the Town's

psychiatrist, and random drug testing.

On October 23, the Town notified Alston that he had

exhausted his available leave.2 Alston was asked to resume

2 Meanwhile, on July 8, the state superior court entered
judgment for the Town on Alston's discrimination and retaliation
claims, resting its decision on procedural grounds.

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contributing his share of his municipal health insurance premiums.

Although Alston did not respond to this request, the Town continued

to cover Alston's share and his health insurance remained in force.

The Town and the Department attempted to schedule

meetings with Alston to explore whether he could return to work

with reasonable accommodations. Alston failed to appear for a

planned November 10 meeting. When he insisted on bringing members

of the public to a November 24 meeting, Ford and DeBow refused to

hold the meeting with Alston's guests present. DeBow then wrote

to Alston, notifying him of a scheduled reevaluation appointment

with Dr. Brown. Alston's counsel replied that Alston would not

attend.

Alston then formally asked the Board to review his claims

of discrimination and retaliation. The Board's chair (Kenneth

Goldstein) replied in December that "[w]e are . . . informed that

the supervisor who uttered those words to you and was formally

disciplined for the incident offered his apology to you, and has

since repeatedly expressed remorse and regret for his conduct."

The following month, Alston contacted Goldstein, complaining about

an incident involving Stanley Spiegel, a Town Meeting member. See

supra note 1. An investigation commissioned by the Town revealed

that Spiegel had told an Alston supporter that "he was a Town

Meeting member and he knew things the public didn't know [because]

Alston won't allow [his personnel file] to be released to the

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public." The Town sought input about this incident from Alston's

counsel but received no response. Eventually, the Town concluded

that Spiegel had not violated the Town's anti-discrimination/anti-

retaliation policy.

On January 13, 2015, Goldstein and Murphy met with Alston

and his counsel. They again requested that Alston submit to a

reevaluation by Dr. Brown. Alston refused and continued to press

for paid leave. A brouhaha erupted over a statement that Goldstein

construed as a threat and that Alston maintained was benign. The

meeting ended without any progress having been made.

In February, Alston sat for a fitness-for-duty

examination by Dr. Marilyn Price, a Town-retained psychiatrist

(designated as such after Alston had demanded that the Town replace

Dr. Brown). The next day, Alston was placed on paid leave

(apparently as a reward for his cooperation). Dr. Price concluded

that Alston could return to work so long as he committed to

appropriate treatment and the Town implemented satisfactory

stress-reducing accommodations. She recommended three specific

conditions: that Alston receive appropriate mental health

treatment; that Alston undergo random drug screens; and that the

Town work with Alston to identify accommodations to reduce his

level of stress. Even so, Alston and the Town failed to agree on

a return-to-work plan.

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 In June of 2015, Alston wrote to the new Board chair

(Neil Wishinsky), requesting a one-on-one meeting to discuss the

"stalemate." He stated that, although he had "always been willing

to play by the rules," the Town was "not agreeing to make changes

that will make the fire house safe for [him]." Alston referenced

the seminal 2010 voicemail, arguing that the promotion of Pender

undermined the Town's professed "zero tolerance" policy toward

racism. He concluded by asking for an opportunity to be heard.

Murphy — the Town's counsel — responded that she had advised

Wishinsky against such a meeting. Alston did not respond to

Murphy. Instead, Alston acknowledged receipt of Murphy's message

in a letter to the Board. In his letter, Alston declined the

Town's back-to-work conditions and again requested a hearing

before the Board on his discrimination and retaliation

allegations. Once again, it was Murphy who responded to Alston's

request. She went on to emphasize the public safety considerations

underlying Dr. Price's conditions and asked Alston to provide

specific reasons for disregarding those conditions. Murphy

received no reply to her letter. In August and September, Chief

Ford sought information from Alston about his current mental health

treatment. Alston did not respond to either inquiry.

In November, a Town consultant released the results of

a "racial climate" review. The review found no significant areas

of concern.

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 In February of 2016, Murphy requested proof of mental

health treatment and instructed Alston to appear for a drug test.

Alston neither acknowledged Murphy's request nor appeared for the

scheduled drug test. On February 16, the Board met and terminated

Alston's paid leave for his failure to cooperate with return-to-

work conditions.

In March and April, the Town informed Alston that it had

retained Charles Walker, a former MCAD chair, to hear Alston's

concerns in front of the Board. Alston refused to participate.

On May 5, Murphy informed Alston's counsel that Chief Ford was

available to discuss reasonable accommodations and sought

information about Alston's availability. Once again, Murphy

received no response. In late May, Alston exhausted his accrued

leave credits.

In June of 2016, Acting Chief Robert Ward recommended

Pender for a temporary promotion to deputy fire chief. Pender

appeared before the Board, and the Board decided to accept Ward's

recommendation, noting that Pender had served out his discipline

related to the voicemail incident.

Alston did not respond to a July 21, 2016 letter from

DeBow regarding possible modified duty, and he also did not appear

for a drug test scheduled for the following August. At the end of

August, an outside hearing officer held a pre-termination hearing.

Alston chose not to testify, not to call witnesses, and not to

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submit any exhibits. The hearing officer found just cause for

termination of Alston's employment, and the Board voted to adopt

the recommendation and to terminate Alston's employment. Alston

appealed his termination to the Massachusetts Civil Service

Commission (the Commission), which denied his appeal without

holding an evidentiary hearing. In April of 2018, though, the

state superior court vacated the Commission's decision and

remanded the matter for an evidentiary hearing. Following a ten-

day evidentiary hearing, the Commission reversed Alston's ouster

in February of 2019 and ordered him reinstated with back pay. In

its decision and findings (the D&F), the Commission concluded that

the Town's "own actions and inactions were the reasons that made

it impossible for Firefighter Alston to return to work, which

formed the basis of [the Town's] decision to terminate his

employment." The superior court subsequently denied the Town's

motion to stay the Commission's order pending the Town's appeal.

And in August of 2019, the superior court affirmed the Commission's

decision to reinstate Alston. The Town's appeal was rejected by

the Massachusetts Supreme Judicial Court on April 27, 2021. See

Town of Brookline v. Alston, No. SJC-12974, 2021 WL 1619958, at *1

(Mass. Apr. 27, 2021).

During the latter stages of this jousting, Alston

repaired to the federal district court. He brought this suit in

December of 2015, and it culminated (as relevant here) in the entry

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of the summary judgment order that is now before us. See Alston,

2020 WL 1649915, at *5.

II. ANALYSIS

Alston assigns error to the district court's entry of

summary judgment in favor of the Town, the Board, and a cadre of

Town officials sued both in their personal and official capacities.

He argues that the record, properly configured, raises triable

issues of fact as to the discriminatory and retaliatory nature of

the defendants' actions. Alston also challenges the district

court's denial of his motion to void — on public policy grounds —

settlement agreements that purport to forbid certain individuals

from cooperating in the prosecution of Alston's case.

We review a district court's entry of summary judgment

de novo. See Houlton Citizens' Coal., 175 F.3d at 184. In that

process, we evaluate the facts of record in the light most

flattering to the nonmovant (here, Alston) and draw all reasonable

inferences in that party's favor. See id. Summary judgment is

appropriate only when the record, read as required, demonstrates

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law. See

Fed. R. Civ. P. 56(a); Morelli v. Webster, 552 F.3d 12, 18 (1st

Cir. 2009). The denial of Alston's motion to void the non-

cooperation clauses presents a question of contract

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enforceability, which engenders de novo review. See S. Bay Bos.

Mgmt. v. Unite Here, Local 26, 587 F.3d 35, 40 (1st Cir. 2009).

A. Claim Preclusion.

At the outset, we think it necessary to clarify the scope

of the record. Specifically, the defendants contend that the

relevant time frame from which we can pluck facts is limited to

the period after the state court's 2014 judgment. Alston demurs,

maintaining that earlier-occurring facts may be employed to

support his claims. Because the resolution of this temporal

dispute will shape our subsequent analysis, we tackle it first.

1. The District Court's Treatment of State-Court

Proceedings. On July 8, 2014, the state superior court dismissed

with prejudice Alston's 2013 lawsuit "as a sanction for Alston's

failure to comply with discovery obligations." Alston, 2020 WL

1649915, at *1. Four years later, the district court was tasked

with evaluating how — if at all — that state-court judgment

affected Alston's federal-court claims. See Alston v. Town of

Brookline, 308 F. Supp. 3d 509, 516 (D. Mass. 2018). The

defendants invoked the doctrine of claim preclusion and "ask[ed]

the court to excise the facts alleged in the first case from the

present case." Id. at 552. Alston objected.

The district court sided with the defendants: it

concluded "that the doctrine of claim preclusion does apply,

because the claims at issue could have or should have been brought

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in the prior action." Id. at 517. The court then went beyond

what the defendants had requested, ruling that Alston could assert

only "claims that post-date the final judgment" in the state-court

suit. Id.

Alston moved for reconsideration, arguing (among other

things) that because his state-court suit named only the Town as

a defendant, his claims against the individual defendants could

not be precluded. See Alston v. Town of Brookline, No. 15-cv-

13987, 2018 WL 3302995, at *1 (D. Mass. July 5, 2018). The district

court denied Alston's motion, holding that "Alston may only assert

claims against the defendants — both Town and individual — that

have arisen after the date of the final judgment of the [state-

court] case." Id. at *2.

The effect of these orders on Alston's claims is not

entirely clear. On the one hand, the district court did not

explicitly expunge events prior to the 2014 judgment from the

record (as requested by the defendants) but, rather, focused its

order on "claims" that "could have or should have been brought."

Alston, 308 F. Supp. 3d at 517. Under this framework, mixed claims

(that is, claims anchored both in facts occurring prior to the

2014 cutoff date and in facts occurring thereafter) arguably could

not have been brought in the state-court action and, thus, may

have survived. On the other hand, the district court did

explicitly "[sustain] the defendant's objection" — an objection

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that requested the court to bar all claims "alleg[ing] facts that

pre-date the termination" of the state-court suit. Id. at 516-

17. Strengthening this implication, the district court later wrote

that because "Alston was foreclosed from asserting in this case

claims that were or were available to be asserted in the prior

case," he could not "assert any claim arising from" incidents that

occurred before the state court disposed of his original suit.

Alston, 2020 WL 1649915, at *4 n.5. Illustrating this point, the

district court noted that the "Leave" incident had occurred in

2013 and, thus, could not be relied upon in the federal-court

action. See id.

Claim preclusion is strong medicine and should not

casually be dispensed. Although the district court suggested in

dictum that its disposition of the case would not be different

even if its claim preclusion ruling "was erroneous," id., we are

not so sanguine. The scope and validity of this ruling plainly

affects the contours of the summary judgment record. Thus, we

train the lens of our inquiry on that ruling, reviewing it de novo.

See Silva v. City of New Bedford, 660 F.3d 76, 78 (1st Cir. 2011).

2. Why the District Court Erred. We apply Massachusetts

law to determine the preclusive effect of the state-court judgment.

See Torromeo v. Town of Fremont, 438 F.3d 113, 115-16 (1st Cir.

2006). In Massachusetts, "[c]laim preclusion makes a valid, final

judgment conclusive on the parties and their privies, and prevents

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relitigation of all matters that were or could have been

adjudicated in the action." Kobrin v. Bd. of Regist. in Med., 832

N.E.2d 628, 634 (Mass. 2005) (quoting O'Neill v. City Manager of

Cambridge, 700 N.E.2d 530, 532 (Mass. 1998)). In the circumstances

at hand, claims based entirely on events preceding the state-court

judgment could have been adjudicated in state court and are

therefore barred. See id.; see also Heacock v. Heacock, 520 N.E.2d

151, 153 (Mass. 1988). For claim preclusion to attach as to mixed

claims, the defendants must establish that the prior judgment is

one on the merits, that the parties to the prior and present suits

are the same or in privity, and that the causes of action stated

in the prior and present suits are the same. See Kobrin, 832

N.E.2d at 634.

It cannot be gainsaid that the defendants have satisfied

the first element. The state court's dismissal with prejudice of

Alston's suit operated as a final adjudication on the merits. See

Dep't of Revenue v. LaFratta, 562 N.E.2d 1352, 1355 (Mass. 1990)

(explaining that "a dismissal with prejudice 'constitutes an

adjudication on the merits as fully and completely as if the order

had been entered after trial'" (quoting Boyd v. Jamaica Plain Coop.

Bank, 386 N.E.2d 775, 778 n.8 (Mass. App. Ct. 1979))); see also

Mass. R. Civ. P. 41(b)(2)-(3) ("On motion of the defendant,

. . . the court may, in its discretion, dismiss any action for

failure of the plaintiff to prosecute or to comply with these rules

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or any order of court. . . . [Such] a dismissal . . . operates as

an adjudication upon the merits.").

The defendants' smooth sailing stops there. For one

thing, they encounter rough seas when the identity-of-parties

element is inspected. In the state court, Alston sued the Town

alone. By contrast, Alston's federal-court suit is directed not

only against the Town but also against a bevy of individual

defendants affiliated with the Town (who are named in both their

individual and official capacities). As official-capacity

defendants, these individuals present no barrier to the

application of claim preclusion: we have held that "a public

official, sued only in his official capacity, is a proxy for the

government entity that employs him and is in privity with that

entity." Goldstein v. Galvin, 719 F.3d 16, 23 (1st Cir. 2013).

For claim preclusion purposes, then, the identity-of-parties

element is satisfied as to the claims against the Town and the

individual defendants in their official capacities.

But as individual-capacity defendants, these Town

officials stand on a different footing. Because "[b]y definition,

such a suit takes aim at the individual," those individual-capacity

defendants are "not considered to be in privity with the government

entity" with which they are affiliated (here, the Town). Id.

Building on this foundation, we held in Goldstein that "a person

who is sued in one capacity (whether official or individual) cannot

- 23 -
assert a defense of claim preclusion in a later action in which he

is sued in a different capacity." Id. Thus, "a person who has

defended a suit brought against him in his official capacity is

not protected by principles of claim preclusion from a subsequent

suit brought against him by the same plaintiff[] in his individual

capacity." Id. It follows that none of Alston's claims against

persons sued in their individual capacities are subject to claim

preclusion, and the district court's contrary ruling was

incorrect.

The defendants challenge this conclusion arguing that

the "operative holding" in Goldstein was too narrow to be helpful.

As they read it, Goldstein stands only for the proposition that

"when a federal court considers the preclusive effect of an earlier

state-court judgment, it must apply that state's preclusion

principles." And in Massachusetts, they say, those principles

demand a finding of claim preclusion.

The defendants read Goldstein too grudgingly. There, we

assessed the preclusive effect of a state-court judgment when the

state-court suit was against an individual in his official capacity

and the subsequent federal suit named him only in his individual

capacity. See id. at 22-23. We concluded "that an official who

has litigated [a claim] in his official capacity is not precluded

from relitigation [of that claim] in his personal capacity." Id.

at 23 (internal quotations omitted). This conclusion is the law

- 24 -
of this circuit and, as such, it is binding upon us. See United

States v. Barbosa, 896 F.3d 60, 74 (1st Cir. 2018); Nevor v.

Moneypenny Holdings, LLC, 842 F.3d 113, 125 (1st Cir. 2016).

The individual defendants also suggest that Goldstein

misconstrued Massachusetts law. Even if that question were open

to us — and it is not — the defendants do not argue that the wall

that Goldstein erected between a defendant's official and

individual capacities does not exist. Instead, they argue, in

effect, that our conclusion in Goldstein was erroneous because,

under Massachusetts preclusion principles, state courts do not

require a showing of the identity of the parties. Massachusetts

courts, the defendants assert, apply the doctrine of non-mutual

claim preclusion, which permits a person who was not a party in a

prior suit to raise the defense of claim preclusion in a subsequent

suit (such that litigation of a claim in one capacity may preclude

relitigation in another capacity).

The cases that the defendants cite for this suggestion

are not in point. Some of them do not apply Massachusetts law.

See, e.g., Fidler v. E.M. Parker Co., 476 N.E.2d 595, 599-600

(Mass. 1985) (determining preclusive effect of earlier federal-

court judgment under federal claim-preclusion principles); Mancuso

v. Kinchla, 806 N.E.2d 427, 434 (Mass. App. Ct. 2004) (same).

Others turn on issue preclusion, not claim preclusion, see, e.g.,

Martin v. Ring, 514 N.E.2d 663, 664 (Mass. 1987); Maher v. General

- 25 -
Motors Corp., 346 N.E.2d 833, 835 (Mass. 1976); Home Owners Fed.

Sav. & Loan Ass'n v. Nw. Fire & Marine Ins. Co., 238 N.E.2d 55, 59

(Mass. 1968), and this distinction makes a dispositive difference,

see TLT Constr. Corp. v. A. Anthony Tappe & Assocs., Inc., 716

N.E.2d 1044, 1049 (Mass. App. Ct. 1999) ("Claim preclusion has as

a prerequisite that there be an identity or privity of the parties

to the present and prior actions, while issue preclusion requires

[only] that the party against whom issue preclusion is asserted in

the present action was a party or in privity with a party to the

prior adjudication."). The rest of the cases that the defendants

cite describe claim preclusion generally but wholly fail to

establish that, under Massachusetts law, a defendant who was

neither a party nor in privity with a party in the earlier suit

may invoke claim preclusion against a plaintiff. See, e.g.,

O'Neill, 700 N.E.2d at 532; Heacock, 520 N.E.2d at 152-53.

We need not paint the lily. Consistent with Goldstein,

we hold that for a claim to be precluded by a previous state-court

judgment, Massachusetts law requires the identity of parties. See

Korbin, 832 N.E.2d at 634. The defendants sued in this action in

their individual capacities were neither parties to Alston's

state-court suit nor in privity with such parties. Accordingly,

Alston's claims against those individual-capacity defendants are

not subject to claim preclusion.

- 26 -
 This leaves the possibility of claim preclusion against

the Town and the individual defendants in their official

capacities. That possibility hinges on the third element of the

claim preclusion framework: the identity of the claims. We bring

that element front and center.

Under Massachusetts law, "[a] claim is the same for

[claim preclusion] purposes if it is derived from the same

transaction or series of connected transactions." Saint Louis v.

Baystate Med. Ctr., Inc., 568 N.E.2d 1181, 1185 (Mass. App. Ct.

1991). Several of the events important to Alston's federal-court

claims undergirded Alston's state-court claims. In the state-

court suit, Alston pleaded discrimination and retaliation claims

and supported those claims with descriptions of the 2010 voicemail

incident, Pender's subsequent promotions, and allegations that the

Department's brass and the Town not only failed to take corrective

action but also participated in further violations of his rights.

Those allegations focused on the Town's actions aimed at isolating

Alston from fellow firefighters. Alston says that the Town mocked

him by calling discrimination trainings "Alston trainings" or

"Gerald trainings," by instructing other firefighters to "stay

away from Alston" lest they risk being sued or fired, and by foot-

dragging with respect to injured-on-duty benefits after Alston had

been hurt at work. According to Alston, the Town's actions

resulted in firefighters shunning and ridiculing him.

- 27 -
 Alston's allegations in federal court sweep much more

broadly than his allegations in state court. As an example, they

go well beyond his relationship with his fellow firefighters.

Alston alleges that the Town spoke to outside sources in order to

discredit him, that the selectmen engaged Alston in bad faith after

they placed him on paid administrative leave in February of 2015,

and that the selectmen's insincere efforts to ensure that Alston

would feel safe at work culminated in the termination of Alston's

paid leave in February of 2016. As another example, Alston alleges

in his federal-court suit that he was fired for discriminatory

and/or retaliatory reasons — but that firing did not take place

until well after 2014, and Alston's federal-court allegations are

considerably more extensive than his state-court allegations of

workplace disruption. Where, as here, subsequent conduct is

materially more extensive than the conduct underlying an earlier

suit, claim preclusion will not lie. See Walsh v. Int'l

Longshoremen's Ass'n, Local 799, 630 F.2d 864, 873 (1st Cir. 1980).

The sockdolager is that many of the allegations in

Alston's federal-court complaint post-date the state-court

judgment. For instance, the operative version of the federal-

court complaint alleges that the state-court judgment itself

triggered further retaliation by the defendants because the state-

court suit was (in their view) Alston's "last protection against

termination." Thereafter, Alston alleges, the Town ignored him,

- 28 -
cut off his pay, spoke negatively about him in public, and then

cashiered him. None of these allegations could conceivably have

been included in the state-court suit because they refer to events

that had not then happened. Put another way, the present

allegations "involve subsequent conduct, and thus lack sufficient

identicality of causes of action with the earlier suit." González-

Piña v. Rodríguez, 407 F.3d 425, 430 (1st Cir. 2005) (finding that

claim preclusion did not apply where employee who returned to work

after first suit was subjected to new conduct) (internal quotations

omitted).

The bottom line is that Alston's suspension without pay

and his subsequent firing go significantly beyond the nucleus of

operative facts alleged in the state-court case, both in time and

scope. And because suspension without pay and firing are alleged

to be retaliatory consequences that were not — and could not have

been — set out in the state-court complaint, the suit before us

does not "seek[] redress for the same wrong[s]." TLT Constr.

Corp., 716 N.E.2d at 1051 (quoting Mackintosh v. Chambers, 190

N.E. 38, 39 (Mass. 1934)). Therefore, the claims involved in the

two suits are not identical.

Against this backdrop, we hold that Alston's present

claims against the Town and the official capacity defendants are

- 29 -
not precluded by the state-court judgment. To the extent that the

district court held to the contrary, its holding was in error.3

3. Some Final Words. The doctrine of claim preclusion

sieves claims, not facts. See Whole Woman's Health v. Hellerstedt,

136 S. Ct. 2292, 2305 (2016). Nor are we aware of any other

authority that would bar the consideration of facts that occurred

before the state-court judgment. See id. (citing Restatement of

Judgments for proposition that materially changed circumstances

post-judgment, "taken in conjunction with the antecedent facts,"

may form the nucleus of a second action, Restatement (Second) of

Judgments § 24, cmt. f (1980)). In this suit, Alston complains of

conduct that transpired over many years. We conclude that he is

not precluded either from bringing the present claims or from

supporting those claims with facts that pre-date the state-court

judgment. To the extent that the district court's rulings

contravened these principles, those rulings were incorrect.

3 There is one exception. Alston's claims against Selectwoman
Mermell did not make it to the summary judgment stage. The
district court dismissed those claims because Mermell left the
Board in 2013 and, as a result, no claim against her rested on
facts that post-dated the state court's 2014 judgment. See Alston,
2018 WL 3302995, at *2 n.1. Mermell is not listed on the docket
as an appellee, and Alston offers no arguments against her on
appeal. What is more, when listing "the town officials who
condoned and participated in the discrimination and retaliation"
against him, he includes each of the individual defendants except
Mermell. Accordingly, the district court's decision to dismiss
the claims against her has not been challenged, and we need not
consider it.

- 30 -
 These errors have significant ramifications for this

appeal. The appropriateness of summary judgment depends, of

course, on the existence vel non of genuine issues of material

fact. The district court's erroneous view of claim preclusion

artificially constrained the sources that it was willing to

consider in determining whether genuine issues of material fact

existed. We must proceed, therefore, to evaluate Alston's

remaining claims of error against the full summary judgment record

— a tableau that includes facts that occurred prior to the entry

of the 2014 state-court judgment. We turn next to that task.

B. Claims Against the Town and the Board (count 1).4

Alston alleges that the Town and the Board are liable

for racial discrimination against him in violation of the Equal

Protection Clause. See U.S. Const. amend. XIV, § 1. He also

alleges that the Town retaliated against him for protesting this

discriminatory treatment, thereby abridging his First Amendment

right to free speech. See U.S. Const. amend. I. These wrongs, he

says, entitle him to recover damages under 42 U.S.C. §§ 1981 and

1983. We examine his claims sequentially.

4 Count 1 also contains allegations against Murphy and DeBow,
but nearly identical allegations are contained in count 2. With
respect to Murphy and DeBow, Alston's briefing does not distinguish
between counts 1 and 2 but, instead, refers generally to those
counts as his "discrimination and retaliation claims." For ease
in exposition, we examine all of his claims against Murphy and
DeBow in our subsequent discussion of count 2.

- 31 -
 1. Equal Protection. Alston invokes section 1983,

asserting that the defendants violated his equal protection

rights.5 See Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir.

2008) ("Section 1983 is a vehicle through which individuals may

sue certain persons for depriving them of federally assured

rights."). To succeed on an equal protection claim, Alston must

establish that, compared with others similarly situated, he was

treated selectively and in a subpar manner based on impermissible

considerations (such as race). See Rubinovitz v. Rogato, 60 F.3d

906, 909-10 (1st Cir. 1995); see also Ayala-Sepúlveda v.

Municipality of San Germán, 671 F.3d 24, 32 (1st. Cir. 2012) ("Some

evidence of actual disparate treatment is a 'threshold

requirement' of a valid equal protection claim" (quoting Est. of

Bennett v. Wainwright, 548 F.3d 155, 167 (1st Cir. 2008).). "To

5At the motion-to-dismiss stage, the district court
considered whether the allegations in the operative complaint
sufficed to establish municipal liability under section 1983. See
Alston, 308 F. Supp. 3d at 532-34; see also Monell v. Dep't of
Soc. Servs. of City of N.Y., 436 U.S. 658, 690 (1978). At that
time, the Town and the Board conceded that the Board members were
the final policymakers for purposes of liability anent Alston's
employment. Alston, 308 F. Supp. 3d at 534. For that reason, the
district court concluded that the allegations that the Board
members' conduct "deprived Alston of constitutional rights is an
acceptable method of establishing municipal liability under
§ 1983." Id.; see also Welch v. Ciampa, 542 F.3d 927, 942 (1st
Cir. 2008) ("[A] single decision by a final policymaker can result
in municipal liability."). On appeal, the defendants do not
dispute that Alston's allegations, if proven, would suffice to
establish municipal liability. Accordingly, no Monell issue is
before us.

- 32 -
put flesh upon the bare bones of this theory," a plaintiff's task

is "to identify and relate specific instances where persons

situated similarly 'in all relevant aspects' were treated

differently." Dartmouth Rev. v. Dartmouth Coll., 889 F.2d 13, 19

(1st Cir. 1989) (quoting Smith v. Monsanto Chem. Co., 770 F.2d

719, 723 (8th Cir. 1985)). Such relevant aspects include job

"performance, qualifications and conduct, 'without such

differentiating or mitigating circumstances that would

distinguish' their situations." Smith v. Stratus Computer, Inc.,

40 F.3d 11, 17 (1st Cir. 1994) (quoting Mitchell v. Toledo Hosp.,

964 F.2d 577, 583 (6th Cir. 1992)).

Alston has failed to satisfy this obligation. He neither

alleges nor points to facts that identify non-black firefighters

similarly situated to him, who did not experience the negative

treatment and adverse employment actions to which he was subjected.

Cf. Ayala-Sepúlveda, 671 F.3d at 32 (granting summary judgment

when plaintiff, a homosexual man, "present[ed] no evidence

regarding, for example, instances in which heterosexual employees

with similar rank and qualifications were not transferred"). In

his briefing, Alston does not make the slightest effort to identify

any facts in the record that might show such a disparity in

treatment. We have warned before — and today reaffirm — that "a

litigant has an obligation 'to spell out [his] arguments squarely

and distinctly,' or else forever hold [his] peace." Rivera-Gomez

- 33 -
v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988) (quoting Paterson-

Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990

(1st Cir. 1988)). So it is here. Consequently, we hold that the

district court's grant of summary judgment on Alston's equal

protection claim was unimpugnable.6 See Ayala-Sepúlveda, 671 F.3d

at 32.

2. Section 1981. We turn next to Alston's claims under

42 U.S.C. § 1981. The "exclusive federal remedy for violation of

the rights guaranteed in § 1981 by state governmental units" is

section 1983. Buntin v. City of Boston, 857 F.3d 69, 70-71 (1st

Cir. 2017) (quoting Jett v. Dallas ISD, 491 U.S. 701, 733 (1989)).

Thus, a plaintiff "may not bring claims for damages under 42 U.S.C.

§ 1981 against state actors." Id. at 70.

6 Alston's claims against the individual defendants include
claims under 42 U.S.C. § 1983. As we noted in Spiegel, 988 F.3d
at 574, the operative complaint does not explicitly invoke any
particular constitutional provision in relation to the individual
defendants. The operative complaint does, however, invoke the
Equal Protection Clause, see U.S. Const. amend. XIV, § 1, with
respect to Alston's parallel allegations concerning the Town and
the Board's allegedly discriminatory conduct. We therefore assume
that his allegations of race discrimination against the individual
defendants likewise arise under the Equal Protection Clause. See
Spiegel, 988 F.3d at 574. So viewed, those claims suffer from the
same evidentiary deficiency that dooms his counterpart equal
protection claims against the Town and the Board: they lack any
predicate showing of similarly situated firefighters who were
spared the same sort of negative treatment and adverse employment
actions of which Alston complains. Thus, we affirm the entry of
summary judgment in favor of the individual defendants on these
claims.

- 34 -
 We are bound by Buntin as the law of the circuit, and

Alston does not articulate any legal theory that would suffice to

circumvent the Buntin limitation. Accordingly, we affirm the

district court's entry of summary judgment in favor of the Town

and the Board with respect to Alston's section 1981 claims. By

the same token, we affirm the district court's order granting

summary judgment in favor of the individual defendants, in both

their individual and official capacities, on those claims. See

id. at 70, 76. After all, those defendants are also state actors

and they are alleged to have acted only within the realm of their

official duties. See id. It follows that Alston's section 1981

claims against them are barred.

3. Section 1983 Retaliation. This brings us to Alston's

claims for retaliation under 42 U.S.C. § 1983. The gravamen of

his claims is the contention that the defendants — the Town and

the Board — retaliated against him for his exercise of his First

Amendment rights. To prevail, Alston — as a public employee —

must establish that his expression involved matters of public

concern, that his interest in commenting upon those matters

outweighed the Town's interests in the efficient performance of

its public services, and that his protected speech was a

substantial or motivating factor in the adverse employment actions

that were visited upon him. See Lewis v. City of Boston, 321 F.3d

207, 218 (1st Cir. 2003). If Alston can make a prima facie showing

- 35 -
to this effect, the burden shifts to the defendants to demonstrate

that they would have taken the same action regardless of Alston's

speech. See Collazo-Rosado v. Univ. of P.R., 765 F.3d 86, 95 (1st

Cir. 2014).

The affected defendants concede that Alston has made out

a prima facie case of retaliation. They insist, though, that they

cooperated with Alston to facilitate his return to work and relied

on Dr. Price's report in deciding to terminate Alston's employment.

These actions, they say, make it pellucid that their decision to

fire Alston was not anchored in a retaliatory rationale but,

rather, that Alston's unfitness for duty was an independent reason

for terminating his employment.

In arguing that this explanation is a sham, Alston points

primarily to the D&F (the decision and findings of the

Massachusetts Civil Service Commission). In the D&F, the

Commission found the defendants' proffered reasons for firing

Alston to be pretextual. Alston submits that if a jury were

presented with the D&F — which rested on evidence that is largely

included within the summary judgment record — it could reasonably

conclude that the defendants acted in a retaliatory manner. The

D&F should have been treated as admissible evidence in this case,

- 36 -
Alston insists, under Federal Rule of Evidence 803(8) and First

Circuit precedent interpreting that rule.7

Rule 803(8) crafts an exception to the hearsay rule, in

certain circumstances and subject to certain conditions, for

"factual findings from a legally authorized investigation" by a

governmental entity. Fed. R. Evid. 803(8)(A)(iii). Alston argues

that the D&F satisfies these criteria and that comparable

administrative findings, reached (as here) after adversarial

hearings, have been admitted into evidence in other cases. See,

e.g., Davignon v. Hodgson, 524 F.3d 91, 113 (1st Cir. 2008) ("The

Supreme Court has interpreted [the] 'public records' exception to

the hearsay rule broadly to include both conclusions and opinions

of public offices and agencies" (quoting Patterson v. Mills, 64 F.

App'x. 457, 462 (6th Cir. 2003).)); see also Beech Aircraft Corp.

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

The defendants' initial objection is that Alston failed

to advance this argument below. Specifically, they contend that

Alston "did not mention Fed. R. Evid. 803(8) and First Circuit

precedent construing it" in the district court and, thus, waived

any argument premised on those authorities. The record, however,

tells a different tale.

Although the amici argued in their brief that the D&F should
7

be accorded preclusive effect, Alston expressly disavows that
argument.

- 37 -
 It is true that Alston did not make mention of either

Rule 803(8) or First Circuit precedent interpreting it. But Alston

justified his reliance on the D&F by citing case law for the

proposition that the court could take judicial notice of it as a

record and report of an administrative body. In addition, Alston

argued below that the D&F itself constituted evidence sufficient

to convince a reasonable jury to find that the defendants'

explanation was a pretext for discriminatory and retaliatory

conduct. He pointed out that, because the D&F was itself a product

of an extensive evidentiary hearing and because that rational trier

of fact found in his favor, a reasonable jury presented with

essentially the same information could also find in Alston's favor.

And in his opposition to the motion for summary judgment, Alston

submitted that "[t]he facts presented at the civil service hearing,

and the inferences drawn from those facts, were plainly sufficient

to permit a reasonable fact finder — the chair of the Commission

— to reject the Town's claim to have terminated Alston in good

faith and for non-discriminatory and non-retaliatory reasons."

Alston then suggested that "[i]t is not a leap to conclude that a

reasonable jury, with the benefit of a full trial, could reject

the same defenses proffered by the Defendants in this case. A

jury would also be permitted to find, as did the Commission, that

Alston's termination was retaliatory . . . on the basis of race."

- 38 -
 There was more. In that same opposition, Alston again

argued that "after hearing all the evidence and making appropriate

assessments of credibility, the Commission unequivocally rejected

the Defendants' version of reality and sided with Alston. It is

simply not credible, therefore, for the Defendants to claim that

a reasonable jury would somehow be compelled to find in the

Defendants' favor on the same set of facts."

The bottom line is that the defendants were clearly on

notice of Alston's argument during the district court proceedings.

In their rejoinder to Alston's opposition to summary judgment,

they presented essentially the same arguments that they now make

as to the admissibility vel non of the D&F. Given these back-and-

forth volleys, we think it is evident that Alston presented the

D&F as a source of material facts for summary judgment purposes.

That is essentially the same argument that he is making to us.

Whether or not an issue is preserved in the trial court

does not depend on what authorities the arguing party cites to

that court. See Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d

748, 773 n.20 (7th Cir. 2010) (finding issue preserved because it

was raised below and noting that "litigant may cite new authority

on appeal"); United States v. Rapone, 131 F.3d 188, 196 (D.C. Cir.

1997) (distinguishing between raising new issue and citing new

authority on appeal). Rather, preservation of the issue depends

on whether the issue itself was presented face up and squarely in

- 39 -
the trial court. See B & T Masonry Constr. Co. v. Pub. Serv. Mut.

Ins. Co., 382 F.3d 36, 40 (1st Cir. 2004); Teamsters, Chauffeurs,

Warehousemen & Helpers Union, Local No. 59 v. Superline Transp.

Co., 953 F.2d 17, 21 (1st Cir. 1992). Consistent with these

principles, we hold that Alston adequately preserved the issue of

whether the D&F should be considered as part of the summary

judgment record.

We turn next to the question of how the district court

treated the D&F. Although the court did not explicitly decide

whether the D&F was specific and competent evidence, it ruled more

globally that Alston "fail[ed] to cite competent, non-conclusory

evidence in support of his objections to the defendants' cited

factual evidence." Alston, 2020 WL 1649915, at *3. Later on, the

court stated that Alston had not "pointed to admissible evidence

that would support a factfinder's conclusion that the Town was

punishing him in retaliation for his expressions of criticism."

Id. at *5. The only plausible reading of the district court's

rescript is that the court must have decided, sub silentio, to

exclude the D&F from the summary judgment record. We review the

district court's decision to exclude the D&F for abuse of

discretion. See Udemba v. Nicoli, 237 F.3d 8, 14 (1st Cir. 2001).

"Abuse-of-discretion review is respectful but appellate

deference is not unbridled." Corp. Techs., Inc. v. Harnett, 731

F.3d 6, 10 (1st Cir. 2013). For example, a material error of law

- 40 -
categorically constitutes an abuse of the district court's

discretion. See id. Similarly, an abuse of discretion "occurs

when a material factor deserving significant weight is ignored,

when an improper factor is relied upon, or when . . . the court

makes a serious mistake in weighing [the relevant factors]." Id.

(quoting Indep. Oil and Chem. Workers of Quincy, Inc. v. Procter

& Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988)).

We think that the court below abused its discretion in

effectively excluding the D&F. The defendants' argument, in

essence, posits that Federal Rule of Civil Procedure 56(c)(1)

requires parties to dispute facts in particular ways and that

Alston did not refer to the D&F in such a way. Although this

argument makes clear that Alston did not dispute many of the

statements of fact put forth by the defendants, nothing in Rule

56(c)(1) informs a court about the admissibility of a particular

piece of evidence. Indeed, the rule itself contemplates proof of

facts through, inter alia, "other materials."8

8 Rule 56(c)(1) provides in pertinent part that
A party asserting that a fact cannot be or is
genuinely disputed must support the assertion
by: citing to particular parts of materials
in the record, including depositions,
documents, electronically stored information,
affidavits or declarations, stipulations
(including those made for purposes of the
motion only), admissions, interrogatory
answers, or other materials . . . .
Fed. R. Civ. P. 56(c)(1)(A).

- 41 -
 Here, the most logical conclusion that can be drawn from

a murky record is that the district court failed to give any weight

to a proper factor in the decisional calculus: the D&F. The

court's only reference to the D&F was its conclusion that the D&F

did not work any issue preclusion. See Alston, 2020 WL 1649915,

at *3 n.2. This conclusion, though, sheds no light on the

admissibility of the D&F. An agency's findings are not

inadmissible simply because they have no preclusive effect. Cf.

Davignon, 524 F.3d at 113 (upholding admission of agency decision

under Rule 803(8) even though decision "involved a different issue

and was not binding on the jury").

To be sure, the Town and the Board argue in their

appellate brief that the D&F is shot full of hearsay and is

otherwise unreliable. These arguments are in service to an attempt

to lay a foundation for the exclusion of the D&F as untrustworthy

under Rule 803(8). The fly in this particular ointment is that

the defendants did not make any of these objections to

admissibility below. Because the issue of whether the D&F should

be excluded on this basis was not properly before the district

court, we do not decide this issue. "If any principle is settled

in this circuit, it is that, absent the most extraordinary

circumstances, legal theories not raised squarely in the lower

court cannot be broached for the first time on appeal." Superline

- 42 -
Transp., 953 F.2d at 21. For purposes of this appeal, then, any

such objections are by the boards.9

We hold that the district court abused its discretion in

erroneously excluding the D&F at summary judgment because (the

court thought) it lacked preclusive effect. Even so, this holding

does not end our inquiry. It remains for us to determine whether

a jury, armed with the D&F, reasonably could conclude that the

defendants' stated reasons for terminating Alston's employment

were pretextual.

In conducting this appraisal, we remain mindful that

there is no "mechanical formula" for establishing pretext. Che v.

Mass. Bay Transp. Auth., 342 F.3d 31, 39 (1st Cir. 2003). One

size does not fit all, and the inquiry into pretext is the kind of

inquiry in which "everything depends on the individual facts."

Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218

F.3d 1, 7 (1st Cir. 2000) (quoting Thomas v. Eastman Kodak Co.,

183 F.3d 38, 58 (1st Cir. 1999)). Consequently, "we have been

'particularly cautious' about taking such questions out of the

jury's hands." Che, 342 F.3d at 40 (quoting Hodgens v. Gen.

9 We do not foreclose the possibility that the defendants, in
subsequent proceedings before the district court, may seek to carry
their burden of showing untrustworthiness and, thus, persuade the
district court to exclude all or some of the D&F under Rule 803(8).
See United States v. Fuentes-Lopez, ___ F.3d ___, ___ (1st Cir.
2021) [No. 20-1188, slip op. at 8]. That issue is simply not
before us.

- 43 -
Dynamics Corp., 144 F.3d 151, 167 (1st Cir. 1998)); see Petitti v.

New Eng. Tel. & Tel. Co., 909 F.2d 28, 34 (1st Cir. 1990) ("This

court has consistently held that determinations of motive and

intent, particularly in discrimination cases, are questions better

suited for the jury, as proof is generally based on inferences

that must be drawn, rather than on the proverbial 'smoking gun.'"

(citation and quotation marks omitted)).

Here, the record — properly constituted — contains an

agency decision (the D&F) finding the defendants' reasons for

firing Alston to be pretextual. That agency decision tips the

summary judgment scales and leads us to conclude that there was

sufficient evidence from which a rational jury could find that the

defendants' stated reason for firing Alston was only a pretext for

discrimination.

In reaching this conclusion, we take note that there are

a number of routes through which a plaintiff can demonstrate

pretext. One such route is "by showing that the employer's

proffered explanation is unworthy of credence." Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (quoting

Texas Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 256 (1981)).

Another route allows a plaintiff to demonstrate pretext by showing

"weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate reasons"

such that a factfinder could "infer that the employer did not act

- 44 -
for the asserted non-discriminatory reasons." Hodgens, 144 F.3d

at 168. As we explain below, Alston's case travels down these

routes.

The defendants submit that Alston was fired because he

was not fit for duty and because his non-cooperation and refusal

to comply with the drug-testing condition rendered him unfit to

return to work. Alston says that these reasons were convenient

fictions, and several facts (taken in the light most favorable to

Alston) combine to support an inference that they were bogus.

To begin, the Commission considered whether the

defendants' proffered reasons for the adverse employment action

were a "'mere pretext or device to get rid of' [Alston]." It

concluded that they were. The D&F described how the conditions

that triggered Alston's mental health issues — issues that the

Town then used to question Alston's fitness for duty — were caused

by the defendants. According to the Commission, the Town "chose

not to impose meaningful discipline" on Pender, elected to overlook

the shunning and ignoring of Alston by other firefighters, and

"promoted a false narrative that painted [Alston] as a paranoid

employee who simply couldn't 'move on.'"

The conclusion that the defendants created the

conditions that left Alston unfit for duty is not plucked out of

thin air but, rather, is bulwarked by other facts in the record.

For instance, the information in the flyer describing Alston's

- 45 -
"going postal" comment was exaggerated, and Chief Skerry could not

identify the source of the added information. Moreover, Pender's

statement describing new firefighters' surprise at how "something

so benign" could be ongoing seven years later, could well suggest

to a jury that the defendants have allowed a mischaracterization

of the 2010 incident to flourish.

The record facts could also suggest that the defendants

were quick to minimize Alston's concerns with workplace hostility

— concerns that he communicated to the Town as his reasons for not

participating in the scheduled drug-testing. As an example, DeBow

was easily dissuaded, without a shred of proof, from the logical

conclusion that the "Leave" message was rooted in discrimination

or retaliation. In marked contrast, she could not dismiss the

"possibility" that the message was spawned by a fraternity despite

there being absolutely no evidence to that effect. And, finally,

after Mermell left the Board in 2013, she posted a public apology

to Alston, in which she lamented voting in favor of Pender's two-

week suspension, called his punishment "inadequate," and admitted

that she "accepted what [she] was told as fact" and that she failed

"to assert that a bare-bones punishment fell short of an

appropriate response in the face of one of the most vile slurs."

Mermell added that her failure to object to Pender's temporary

promotion was "yet another message regarding the lack of

seriousness and full understanding with which the Town leadership

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was approaching this matter." All of these events took place prior

to Dr. Price's 2015 report and could suggest to a jury that the

defendants were unwilling from the very beginning to credit

Alston's complaints of race discrimination and hostility,

regardless of Alston's fitness to perform his duties as a

firefighter.

Last — but surely not least — a jury reasonably could

conclude on this record that the defendants' real motives were

discriminatory or retaliatory. Although the relevant events

spanned many years, the key fact is that the sequence of events

was precipitated by a supervisor uttering a vicious racial slur.

As the Fourth Circuit observed, "[p]erhaps no single act can more

quickly alter the conditions of employment and create an abusive

working environment than the use of an unambiguously racial epithet

such as [the 'n-word'] by a supervisor in the presence of his

subordinates." Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185

(4th Cir. 2001) (quoting Rodgers v. W.-S. Life Ins. Co., 12 F.3d

668, 675 (7th Cir. 1993)). So, too, "[n]o other word in the

English language so powerfully or instantly calls to mind our

country's long and brutal struggle to overcome racism and

discrimination against African-Americans." Ayissi-Etoh v. Fannie

Mae, 712 F.3d 572, 580 (D.C. Cir. 2013) (Kavanaugh, J.,

concurring). The record facts, taken in the light most conducive

to Alston's claims, support serial conclusions: that the two-week

- 47 -
suspension of Pender was incommensurate with the repugnancy of

Pender's language; that Pender's subsequent promotions were

inconsistent with the defendants' professed "zero tolerance"

policy toward racism; and that, for many years after the seminal

incident, the defendants labored to protect — albeit clumsily —

the supervisor who was in the wrong by nurturing the narrative

that Alston was paranoid while Pender was remorseful. Given the

supportability of these conclusions, a jury reasonably could find

that when the defendants realized that Alston would not budge,

they chose to look for reasons to terminate his employment instead

of taking action against Pender.

Drawing all reasonable inferences in favor of Alston, we

conclude that a jury could find that Alston's unfitness for duty

was not the true reason for his firing. Instead, a jury could

find that the true reason for the firing was as a reprisal for

Alston's complaints of discrimination and retaliation.

Accordingly, we vacate the district court's grant of summary

judgment in favor of the Town and the Board on Alston's retaliation

claims under section 1983 and remand those claims for further

proceedings.

C. Remaining Claims Against Individual Defendants (count 2).

We now reach Alston's remaining claims. The record makes

manifest that even though all of the individual defendants may not

have been involved in every significant event, each of them was

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involved in at least one significant incident — investigating the

voicemail fiasco, disciplining Pender, his subsequent promotions,

the inquiry into the "Leave" incident, or Alston's firing.

Alston's claims against them, brought pursuant to sections 1981

and 1983, allege race-based discrimination and retaliation.10 We

already have disposed of Alston's section 1981 claims and his

section 1983 equal protection claims against these defendants, see

supra Part II(B)(2) and note 6, and we need not repastinate that

well-plowed ground.

This leaves only Alston's section 1983 retaliation

claims against certain Town officials (Nancy Daly, Sandra DeBow,

Betsy DeWitt, Ben Franco, Kenneth Goldstein, Bernard Greene, Nancy

Heller, Joslin Murphy, and Neil Wishinsky) in both their individual

and official capacities. With respect to these claims, the Town

officials rely heavily on the district court's decision to consider

only facts arising after the state-court judgment. Because the

district court's temporal limitation was in error, see supra Part

10Alston also brought a claim against these defendants for
conspiracy to deprive him of the equal protection of the laws.
See 42 U.S.C. § 1985. The district court entered summary judgment
against Alston on this claim. Alston, 2020 WL 1649915, at *5. In
his appellate briefing, Alston makes no substantive reference to
that ruling. Consequently, we deem any claim of error waived.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
("[T]he settled appellate rule [is] that issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived."). It follows that only his
section 1983 retaliation claims remain for our review.

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II(A), the wind has been taken out of the sails of many of the

Town officials' arguments. We consider what remains of their

asseverational array.11

The Town officials primarily argue that Alston has

failed to raise a genuine issue of material fact as to any of the

elements of his section 1983 First Amendment retaliation claims.

See Lewis, 321 F.3d at 218. They first argue that Alston has not

spoken on an issue of public concern. See id. Specifically, they

assert that after the state-court judgment, Alston was on sick

leave, pending psychiatric clearance. In their view, Alston's

grievances from and after that time focused on the outcome of the

prior litigation — not a matter of public concern.

This is little more than gaslighting. The Town officials

concede that Alston previously protested racial discrimination.

Relatedly, they concede that the right to protest discrimination

is "inherently" a matter of public concern. See Connick v. Myers,

461 U.S. 138, 148 n.8 (1983). It follows inexorably that once the

district court's erroneous temporal limitation has been corrected,

Alston's speech satisfies the "public concern" element of his

section 1983 retaliation claims.

11The individual defendants raise several arguments that are
duplicative of those raised by the Town and the Board, including
arguments in support of affording claim-preclusive effect to the
state-court judgment and arguments in support of excluding the D&F
from the summary judgment record. For the reasons discussed above,
see supra Part II(A), we find those arguments unpersuasive.

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 Next, the Town officials contend that Alston's interest

in his speech was outweighed by the Town's interests in the

efficient performance of its public services. See Lewis, 321 F.3d

at 218. This contention, too, rests on a mischaracterization of

Alston's speech as speech "about previously litigated and adjudged

claims." As we have pointed out, Alston's speech can fairly be

found to be speech against racial discrimination; so the question

for us is whether Alston's interest in speaking against racial

discrimination in the Department is outweighed by the Town's

interests in the efficient discharge of public services.

In balancing these interests, we are committed to the

proposition that "[s]o long as employees are speaking as citizens

on matters of public concern, they must face only those speech

restrictions that are necessary for their employers to operate

efficiently and effectively." Garcetti v. Ceballos, 547 U.S. 410,

419 (2006). Such balancing "requires a hard look at the facts of

the case, including the nature of the employment and the context

in which the employee spoke." Decotiis v. Whittemore, 635 F.3d

22, 35 (1st Cir. 2011) (quoting Davignon, 524 F.3d at 104). We

proceed to take that "hard look," viewing the facts (as the summary

judgment standard demands) in the light most favorable to Alston.

See O'Connor v. Steeves, 994 F.2d 905, 917 (1st Cir. 1993).

After Alston first became concerned about racial

discrimination in the Department, he spoke behind closed doors

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with senior firefighters. He then spoke directly with his

supervisors. After Pender was promoted, Alston continued to voice

his objections to the defendants' allegedly discriminatory

conduct. It was only after Alston reasonably perceived that the

Department had fumbled the ball that he began to speak more

publicly (with other firefighters and with outside parties).

Alston's quiet contacts with his supervisors adequately evinces

that reporting discrimination in the Department does not per se

disrupt the Department's delivery of its important public

services. Given these facts, it strains credulity to insist that

muzzling employees who wish to speak out against race

discrimination is essential for the efficient operation of the

Department. See Garcetti, 547 U.S. at 418-19. It follows that

Alston has satisfied the second element of his section 1983

retaliation claims.

As to the third and last element, four of the Town

officials — DeBow, Murphy, DeWitt, and Goldstein — argue that they

did not engage in conduct that can be said to constitute an adverse

employment action under section 1983. See Lewis, 321 F.3d at 218.

"[T]he 'adverse employment action' inquiry in the section 1983

context focuses on whether an employer's acts, viewed objectively,

place substantial pressure on the employee's political views."

Barton v. Clancy, 632 F.3d 9, 29 (1st Cir. 2011) (quoting Bergeron

v. Cabral, 560 F.3d 1, 8 (1st Cir. 2009)). In undertaking this

- 52 -
tamisage, we look to "whether the defendants' acts would have a

chilling effect on the employee's exercise of First Amendment

rights." Id. As such, the "pertinent question" is whether the

actions of these four defendants comprise the kind of actions that

"would deter 'a reasonably hardy individual[]' from exercising his

constitutional rights." Id. (quoting Agosto-de-Feliciano v.

Aponte-Roque, 889 F.2d 1209, 1217 (1st Cir. 1989) (en banc)).

Alston contends that these four defendants are liable

because they "allowed Alston's pay to terminate in 2014." But

Alston elsewhere asserts that his pay ended in October of 2014

because "he had exhausted all of his available leave." In this

respect, Alston is hoist by his own petard — especially since the

record contains no facts sufficient to cast doubt upon his

"exhaustion" assertion. Nor does anything in the record suggest

that one or more of these four defendants had the slightest effect

on the cessation of Alston's paid leave. Because Alston has failed

to provide any factual plinth for a finding that DeBow, Murphy,

DeWitt, or Goldstein engaged in an adverse employment action within

the purview of section 1983, we affirm the district court's entry

of summary judgment in favor of these four defendants, in both

their official and individual capacities, on the section 1983

retaliation claims.

The remaining Town officials (Daly, Franco, Greene,

Heller, and Wishinsky) argue that, although their firing of Alston

- 53 -
constitutes an adverse employment action, they did not vote to

cashier him in retaliation for his protected speech. See Lewis,

321 F.3d at 218. In support, they insist that the real reason for

Alston's firing was his unfitness for duty. But as we already

have indicated, the record discloses a genuine issue of material

fact as to whether that proffered reason for Alston's firing was

pretextual. See supra Part II(B)(2). As a result, summary

judgment cannot rest on this ground.

Alternatively, the remaining Town officials submit that

they are entitled to qualified immunity with respect to Alston's

individual-capacity claims. To determine if a public official is

entitled to qualified immunity, an inquiring court engages in a

"two-step pavane." Alfano v. Lynch, 847 F.3d 71, 75 (1st Cir.

2017). At the first step, the court must determine "whether the

plaintiff's version of the facts makes out a violation of a

protected right." Id. At the second step, the court must

determine "whether the right at issue was 'clearly established' at

the time of defendant's alleged misconduct." Id. (quoting Matalon

v. Hynnes, 806 F.3d 627, 633 (1st Cir. 2015)). Because qualified

immunity is an affirmative defense to liability, the burden is on

the defendants to prove the existence of circumstances sufficient

to bring the defense into play. See DiMarco-Zappa v. Cabanillas,

238 F.3d 25, 35 (1st Cir. 2001).

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 Here, however, we must address the qualified immunity

issue within the limits of the arguments presented to us on appeal.

In their appellate argument, the remaining Town officials (Daly,

Greene, Heller, Franco, and Wishinsky) do not clearly separate out

either the first prong of the inquiry or the various components of

the second prong. Nor do they attempt to analyze either prong

with respect to each defendant (individually). Instead, they argue

generally that they did not violate Alston's First Amendment rights

without pausing to distinguish between and delineate the two

prongs.

Given this superficial presentation, we cannot at this

juncture conclude that the remaining Town officials are entitled

to qualified immunity. The limitations of the record and of the

defendants' arguments stand in the way. It follows that we must

vacate the district court's entry of summary judgment on the claims

against the remaining Town officials.

We add a coda. To the extent the remaining Town

officials focus on the first prong of qualified immunity in their

appellate brief, that reliance is mislaid. They have made, at

most, generalized and non-specific arguments with respect to each

individual defendant. Since we already have held that Alston has

survived summary judgment on the merits of his First Amendment

retaliation claims, see supra Part II(C), such arguments are

insufficient to ground a conclusion that Alston's version of the

- 55 -
facts falls short of working a violation of his constitutional

rights. See Alfano, 847 F.3d at 75.

We also think it useful to comment upon the second prong

of the qualified immunity inquiry. In their appellate brief, the

Town officials cite that prong and state that "the law must have

been sufficiently clear that 'any reasonable official in the

defendant's position would have known that the challenged conduct

is illegal "in the particular circumstances that he or she

faced."'" They also discuss the Pickering balancing of the

interests, see Pickering v. Bd. of Educ. of Twp. High Sch. Dist.

205, 391 U.S. 563, 568 (1968), and their claimed justifications

for the termination of Alston's employment. But they do not

explain why these elements of Alston's First Amendment retaliation

claims fail one or more components of the second prong. Given the

lack of clarity as to the arguments actually being made, we cannot

now conclude that the remaining Town officials are entitled to

qualified immunity. The entry of summary judgment in their favor

on Alston's section 1983 free-speech retaliation claims, in both

their individual and official capacities, must, therefore, be

vacated.

This does not mean, of course, that the district court

cannot explore the qualified immunity issue in all its aspects on

remand. For instance, the district court may entertain successive

motions for summary judgment, see FDIC v. Kooyomjian, 220 F.3d 10,

- 56 -
16 (1st Cir. 2000), or address the issue at a subsequent stage of

the litigation, see Guzmán-Rivera v. Rivera-Cruz, 98 F.3d 664, 669

(1st Cir. 1996) (noting that even though defendants had waived

defense of qualified immunity at summary judgment stage, defense

remained available for subsequent stage of litigation). We leave

these matters to the district court's informed discretion, and we

take no view of the future disposition of the issue.

D. Non-Cooperation Agreements.

There is one loose end. After Alston commenced this

action, the Town entered into settlement agreements with three

black men who had asserted claims against it.12 Each of the

agreements contained a similarly worded non-cooperation clause,

which barred the claimant from "voluntarily cooperat[ing] or

assist[ing] any person or entity . . . in the prosecution of any

claims against the defendants." One of the agreements went so far

as to prohibit cooperation with "Gerald Alston in connection with

the pending federal court complaint." The prohibition contained

in the agreements, however, was not absolute: the agreements did

not prohibit the claimants "from testifying truthfully under oath

12 Alston's first amended complaint (FAC) added seven
plaintiffs to this action, but the district court severed the added
plaintiffs. Although the added plaintiffs are not parties to this
appeal, it should be noted that two of the black men with whom the
Town settled were named as plaintiffs in the FAC. The Town also
settled with another black man who sought to sue separately for
assault and battery.

- 57 -
if compelled to do so via subpoena or court order in a legal

proceeding" or from "cooperating with any federal or state agency

investigation not initiated by a Party."

When Alston learned of the agreements, he moved for an

order voiding the clauses prohibiting voluntary cooperation with

a party in his position as against public policy. The district

court denied the motion, and Alston assigns error.

Alston's principal plaint is that the non-cooperation

clauses are against public policy. In support, he relies primarily

on our decision in EEOC v. Astra USA, Inc., 94 F.3d 738 (1st Cir.

1996). There, we concluded that agreements that prohibit

cooperation with government agencies are void on public policy

grounds. See id. at 745. This case, however, is a horse of a

different hue: the clauses at issue explicitly allow the

signatories to cooperate with agency investigations and to provide

information pursuant to subpoenas or court orders. Astra is,

therefore, inapposite.

In a final attack on these agreements, Alston argues

that, in pursuing his civil rights claims, he is acting as a

private attorney general. As a result, he suggests, his claims

"implicate[] the public interest in safeguarding civil rights."

Alston's reasoning is flawed. It would essentially ban commonplace

non-disclosure clauses from settlement agreements in all civil

rights actions. Such a broad proscription finds no support in the

- 58 -
case law. To the contrary, "public policy strongly favors

encouraging voluntary settlement of employment discrimination

claims." Id. at 744.

We will "rarely" invalidate settlement agreements on

public policy grounds. Bandera v. City of Quincy, 344 F.3d 47, 52

(1st Cir. 2003). This case falls within the general rule, not

within the long-odds exception to it. The Town's use of non-

cooperation clauses as a bargaining chip in settlement

negotiations may be controversial, but we are not prepared to break

new ground and hold that a municipality's use of such clauses is

against public policy. We therefore affirm the district court's

denial of Alston's motion to void the non-cooperation clauses.

III. CONCLUSION

We need go no further. Just as large oaks from single

acorns grow, so too — as this case illustrates — sprawling lawsuits

can grow from a single, highly charged racial slur. And this suit

is not yet at an end. For the reasons elucidated above, the

judgment of the district court is affirmed in part and vacated in

part. Specifically, we vacate the district court's grant of

summary judgment as to Alston's retaliation claims under section

1983 against the Town and the Board. We also vacate the district

court's judgment as to Alston's section 1983 retaliation claims

against Daly, Greene, Heller, Franco, and Wishinsky, in their

personal and official capacities. The case is remanded for further

- 59 -
proceedings consistent with this opinion. All parties shall bear

their own costs.

So Ordered.

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