Alston v. Town of Brookline, MA

United States Court of Appeals
For the First Circuit

No. 20-1434

GERALD ALSTON,

Plaintiff, Appellant,

v.

INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 950,

Defendant, Appellee.

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

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

Before

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

Brooks A. Ames, with whom Brookline Justice League was on
brief, for appellant.
John M. Becker, with whom James Racine and Sandulli Grace,
P.C. were on brief, for appellee.

May 19, 2021

* Of the District of New Hampshire, sitting by designation.
 SELYA, Circuit Judge. Plaintiff-appellant Gerald

Alston's supervisor left him a voicemail containing the most

inflammatory of racial slurs. The message triggered a lengthy

series of events that Alston says culminated in his firing six

years later. Alston did not go quietly into this bleak night but,

rather, sued in the federal district court alleging, inter alia,

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

complaint names as defendants the Town of Brookline, Massachusetts

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

members of the Board, the Town's counsel and human resources

director, Local 950, International Association of Firefighters

(the Union), and a Town Meeting member (Stanley Spiegel). In

resolving these myriad claims, the district court first dismissed

with prejudice the claims against Spiegel. See Alston v. Town of

Brookline, No. 15-13987, 2017 WL 1536213, *1 (D. Mass. Apr. 26,

2017). It then dismissed the claims against a Selectwoman, Jesse

Mermell, in an unpublished order. See Alston v. Town of Brookline,

No. 15-13987, 2018 WL 3302995, at *2 n.1 (D. Mass. July 5, 2018).

Following extensive discovery, the court granted summary judgment,

by means of two successive rescripts, in favor of the other

defendants. See Alston v. Town of Brookline, No. 15-13987, 2020

WL 1649915 (D. Mass. Apr. 2, 2020) (addressing motions by the Town,

the Board, and the remaining individual defendants); Alston v.

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Town of Brookline, No. 15-13987, 2020 WL 1615408 (D. Mass. Apr. 2,

2020) (addressing the Union's motion).

Alston filed a single notice of appeal, challenging all

of these orders (save for the order dismissing the claims against

Mermell). After hearing oral argument, we chose to decide the

appeal in serial opinions. First, we affirmed the district court's

dismissal of Alston's claims against Spiegel. See Alston v.

Spiegel, 988 F.3d 564 (1st Cir. 2021). Next, we reviewed the

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

the Board, and the remaining individual defendants, vacating and

remanding as to some claims and affirming as to others. See Alston

v. Brookline (Alston/Town), ___ F.3d ___, ___ (1st Cir. 2021) [No.

20-1434, slip op. at 4]. In this final opinion, we address the

district court's grant of summary judgment to the Union.

Concluding — as did the district court — that the record reveals

no genuine issue of material fact and that the Union is entitled

to judgment as a matter of law, we affirm.

I. BACKGROUND

We rehearse the relevant facts and travel of the case,

focusing primarily on Alston's interactions with the Union. The

reader who hungers for a more panoramic view may consult our

earlier opinion in Alston/Town, ___ F.3d at ___ - ___ [No. 20-

1434, slip op. at 4-18].

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 Alston, a black man, began working for the Brookline

Fire Department (the Department) as a firefighter in 2002. Shortly

thereafter, he became a member of the Union, which represents all

firefighter personnel employed by the Town, excepting only the

fire chief, the chief of operations, and the civilian staff.

During the spring of 2010, Alston 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 answer, Pender left a voicemail, which concluded with

Pender using a racial slur ("f.....g n....r"), apparently in

reference to Alston. After consultation with fellow firefighters,

he concluded that he ought to reach out to Pender.

Pender, however, beat him to the punch and called him on

July 8. He attempted to assure Alston that the racial slur was

not intended for him. Instead, 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.

Two days later, Pender again tried to explain the context

in which he had uttered the racial slur. By then, Alston had

spoken about the voicemail with Michael O'Reilly, the Department's

chief of operations. Pender stated 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?"

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 Alston filed a written complaint with then-Chief Peter

Skerry on July 28. On July 30, Skerry determined that Pender's

language constituted a fireable offense and transferred Pender to

another station. Disciplinary proceedings took place the next

month. At Pender's request, the Union provided him with legal

representation. After determining that the racial slur may not

have been directed at Alston, the Board imposed a negotiated two-

tour suspension. Along with the suspension, Pender made certain

other concessions: he waived his right of appeal, committed to

undergo anger management and diversity training, agreed to

mediation with Alston, and consented to transfer permanently out

of the station where Alston worked.

Approximately 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 then-Union President Shaun Fay, citing past

practice. Fay did not appeal the Town's decision to promote Pender

to the vacancy. Nor did he ask the Union to file a grievance

regarding the Town's selection of Pender.

On September 17 (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. A week after that meeting, Pender

was given a medal at the White House for his heroism in connection

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with a 2008 fire. Two days after Alston's return to work, Joe

Canney, a fellow firefighter and Union member, wrote on a password-

protected Union blog, to which only Union members had access, a

reference to a "faceless coward" who was marring Pender's receipt

of the award. The post complained about someone "leak[ing] to the

media about our BROTHER[']S alleged acts of misconduct on what

should have been the proudest day of their professional lives."

Because a news report about Alston's complaint against Pender had

recently been published, Alston put two and two together and

understood Joe Canney to be speaking about him. Alston complained

to Skerry, who responded that he would request deletion of the

post. That post was subsequently deleted.

The parties dispute whether Joe Canney was a Union

officer at the time he posted to the blog. Alston points to the

Union's 2010 tax filings, which list him as its vice-president.

But Paul Trahon, the Union President since 2013, testified that

the tax filings were inaccurate. Consistent with his testimony,

Union meeting minutes from this period list Paul Canney — not Joe

Canney — as one of the Union's officers. The tax filings make

clear that the two Canneys are separate individuals.

On November 24, Alston became agitated at work in the

wake of a "routine scheduling decision." Taken to a local

hospital, he tested positive for cocaine.

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 Read in the light most favorable to Alston, see Houlton

Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir.

2021), the record reflects that, in February of 2011, Pender again

berated Alston for reporting the voicemail. Pender allegedly told

Alston that he had "destroyed [Pender's] life and ruined [Pender's]

career."

Alston was injured in a motor vehicle accident in May of

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

the Massachusetts Commission Against Discrimination (MCAD). In

November, 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

growing worse 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. She ultimately

concluded that Alston's allegations were without merit.

Alston never complained to then-Union president Fay

about any instance of retaliation or about being ignored by other

firefighters. Nevertheless — as 2012 drew to a close — Fay learned

that Alston had alleged that his coworkers were retaliating against

him by ignoring him. Fay questioned Alston's group about the

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charge, and the members of the group denied that any form of

"shunning" was taking place.

On January 4, 2013, Lieutenant Ronald Cronin wrote to

the new fire chief Paul Ford requesting that Alston be transferred

back to his assigned engine. The stated purpose of this request

was to keep Alston either on "street level" or with Lieutenant

Justin Robinson at all times in order "to help ensure his own

personal safety." In the letter, Cronin referenced his meeting

with the chief and Lieutenant Robinson but made no mention of any

Union official. And although Trahon did not see this letter until

2018, he testified that he spoke with Robinson around the time of

Cronin's request about "dealing with management" and complying

with the Collective Bargaining Agreement (the CBA).

In May 2013, Chief Ford recommended Pender's permanent

promotion to the rank of captain. The Board acquiesced. By then,

Alston says that he 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). And since Alston was no longer in attendance

at Union events, the Union stopped asking him to sing the national

anthem at those events. So, too, the record contains evidence

showing that Pender took advantage of his new position to tell

recruits that Alston's lawsuit was "a bunch of lies." Pender's

account differs: he testified that he talked with five recruits

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"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, Alston filed suit in a state court on his

MCAD charge. When his state-court suit became public, the Town's

counsel (Joslin Murphy) reminded Pender of his non-retaliation

obligations.

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., 175

F.3d at 184, 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 continued to admonish Alston, stating

that the lawsuit was dragging his name through the mud and causing

pain to his family. He also declared that the allegations in the

complaint were lies.

At the end of his shift on December 19, 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

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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.

Chief 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, and Chief Ford saw no need for the

issuance of a "stay-away order." Moreover, 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.

By then, Trahon had replaced Fay as Union President.

Trahon heard about the "Leave" incident and Alston's subsequent

comments from Lieutenant Robinson. Trahon reached out to Chief

Ford to gather more information. When Ford asked Trahon for

advice, Trahon commented that some unnamed Union members had

expressed concern for their safety. As a result, Trahon proposed

stationing a police cruiser at Station 5. After obtaining

additional information, Trahon suggested assigning policemen to

all the fire stations. Ford asked Trahon if he was "insane" and

rejected Trahon's suggestion. Instead, on December 27, acting at

the direction of the Town's hierarchs, Ford ordered Alston to stay

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off the Town's property due to the "going postal" comment.

Alston's later attempt to clarify that he had never made a comment

about shooting the men in the station was ignored.

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. The

flyer was not distributed to firefighters, nor did the Town send

it to the Union.

In an attempt to obtain more information about the Town's

investigation into the "Leave" incident and Alston's employment

status, Trahon contacted DeBow. According to Trahon, DeBow was

"not forthcoming" but seemed "surprised" by how much Trahon knew.

On January 3, 2014, Trahon sent a follow-up letter to the Town

asking for information about the Town's investigation into the

"Leave" incident, Alston's "threat level," the stay-away order,

Alston's status as an employee, and any assistance offered to

Alston. Trahon requested daily written updates. There is no

evidence that the Town complied with Trahon's request.

On January 13, DeBow notified Alston that she was

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

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comments as possible violations of Town policies. She also

confirmed that he had been placed on paid leave pending completion

of those investigations. On May 14, DeBow reported that she could

not conclude that the "Leave" message was discriminatory or

retaliatory. That same day, the Town scheduled a meeting to

discuss the results of the Town's investigations, disciplinary

action against Alston, and return-to-work conditions.

Alston did not seek to have the Union represent him at

the meeting. When Trahon learned that such a meeting would take

place, he reached out to Alston to ask if he wanted representation.

Alston responded that he did but noted that he would have his

attorney present as well. Neither Alston nor the Town sent Trahon

relevant correspondence or documentation prior to the meeting.

Alston and his attorney attended the meeting. Prior to

the start of the proceedings, DeBow told Trahon that he was allowed

to be there only as an observer. Town officials reported the

results of the Town's investigations, including recommendations

for discipline. Trahon did not object at any point during the

meeting. And although Trahon testified that Alston accepted the

Town's recommendations, Alston recalls objecting to the terms of

the Town's proposal. Notwithstanding his opposition to the Town's

proposed terms, though, Alston never asked the Union either to

lodge a grievance on his behalf or to take any other steps to

oppose the Town's return-to-work conditions. Alston never asked

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the Union for additional representation, nor did he furnish the

Union with any relevant documents.

The Town 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. After

mental health evaluations by both Dr. Andrew Brown (a Town-

designated psychiatrist) and Dr. Michael Kahn (Alston's designee),

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.

The Town and the Department tried to schedule meetings

with Alston to explore whether he could return to work with

reasonable accommodations. After plans for a meeting in November

fizzled, DeBow notified Alston of a scheduled reevaluation with

Dr. Brown.

Alston's counsel responded that Alston would not keep

the scheduled appointment, but Trahon was not privy to that

correspondence. Trahon did learn — in November of 2014 — that the

Town was planning to conduct the scheduled fitness-for-duty

evaluation at the public safety building. The Union took the

position that such a public evaluation contravened the CBA.

Although Alston did not request the Union's assistance on this

issue, Trahon called DeBow to object to the evaluation. DeBow

hung up on him. Trahon then wrote to the Town on December 2,

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stating that the Union was "adamantly against" the Town conducting

any evaluation at fire headquarters. Trahon feared that

"parad[ing] a veteran firefighter through" any public building

would set a "bad precedent for the entire membership" of the Union.

He added that he believed the Union had blocked an earlier attempt

by the Town to conduct a medical evaluation of a Union member in

a public building. Those kinds of evaluations, Trahon said, posed

a "serious problem for the Union."

Alston fell behind in his Union dues and — on December

12 — the Union gave him options either for catching up on his dues

or temporarily withdrawing from Union membership. Alston did not

respond. By failing to pay dues, he became a member not in good

standing. Nevertheless, he was neither removed nor expelled from

the Union; he always had the option of returning to full Union

membership upon payment of back dues.

Trahon's complaint about the proposed reevaluation fell

on deaf ears. Thus, in February of 2015, Alston underwent 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 as long as he committed

to appropriate treatment and the Town implemented satisfactory

stress-reducing accommodations. She recommended three specific

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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.

On December 1, 2015, Joe Canney wrote an email to DeBow

about Alston's situation. He complained that "[d]espite the fact

that Mr. Alston threatened to shoot his co-workers, he continued

to be payed [sic] for longer than most can even remember." Trahon

was copied on this email, but there is no evidence that either he

or DeBow replied to it.

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 test. Later that month, the Board terminated Alston's

paid leave for his failure to cooperate with return-to-work

conditions.

Joe Canney once again logged into the Union blog on May

16 to besmirch Alston. On this occasion, he identified Alston by

name. He wrote that "ALSTON[] [i]s one of the biggest pieces of

shit to ever walk into a firehouse!" Alston did not see Joe

Canney's post until after he filed this suit.

In June, Acting Chief Robert Ward recommended Pender for

a temporary promotion to deputy fire chief. Pender appeared before

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the Board, and the Board decided to accept Ward's recommendation.

It specifically noted that Pender had served out his discipline

related to the voicemail incident.

Although some members of the Union attended a public

hearing to speak in favor of Pender's promotion, the Union itself

neither took a position nor organized the appearance of Union

members. Withal, several members — including Trahon — signed a

petition in favor of the promotion in their capacity as Town

employees. As Trahon testified, the Union itself generally "does

not get involved in hiring or promotions."

Alston did not respond to DeBow's July 21 letter

regarding possible modified duty. Nor did he appear for a drug

test scheduled for the following August. At the end of August, an

outside hearing officer held a pre-termination hearing and found

just cause for termination of Alston's employment. The Board voted

to adopt the recommendation.

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, the

state superior court vacated the Commission's decision and

remanded the matter for the taking of evidence. Following a ten-

day evidentiary hearing, the Commission reversed the Town's edict

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in February of 2019 and ordered Alston reinstated with back pay.1

In Alston/Town, see ___ F.3d at ___ [No. 20-1434, slip op. at 43],

we determined that the Commission's decision and findings (D&F)

formed a legitimate part of the summary judgment record. As

relevant here, the D&F stated:

No union representative attended this or any
similar meeting regarding Firefighter
Alston's potential return to work. According
to Chief Ford, there was a "strained
relationship" between the union and
Firefighter Alston. Chief Ford compared the
lack of union involvement here with another
firefighter who was in jeopardy of losing his
job, stating: " . . . I had the union in my
office saying what the heck can we do to save
this guy's job, they were willing participants
in whatever it's going to take, let's not let
him lose his job. I had zero interaction with
the union as far as they being Gerald's
representative."

Prior to his discharge, Alston brought this suit. In so

far as it pertained to the Union, the suit culminated in the

district court's entry of summary judgment. See Alston, 2020 WL

1615408, at *5.

II. ANALYSIS

The gravamen of Alston's action against the Union is his

claim that the Union's representation of him was tainted by

discrimination and retaliation. In service of this claim, he

1The Massachusetts Supreme Judicial Court rejected the Town's
appeal of the Commission's decision on April 27, 2021. See Town
of Brookline v. Alston, No. SJC-12974, 2021 WL 1619958, at *1
(Mass. Apr. 27, 2021).

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alleges (among other things) that the Union failed to represent

him fairly on account of his race, condoned the Town's racially

discriminatory and retaliatory actions toward him, neglected to

enforce compliance with the CBA's anti-discrimination provision,

better represented other (non-black) firefighters with similar

disciplinary records, acted so as to deprive him of the equal

protection of the laws, retaliated against him for speaking out

against racist policies, and conspired with the Town and Town

officials to deprive him of constitutionally assured rights and

privileges. The district court rejected these importunings,

concluding that Alston had identified no genuine issues of material

fact and that the Union was entitled to judgment as a matter of

law. See Alston, 2020 WL 1615408, at *5. Before us, Alston says

that the district court's entry of summary judgment "ignored"

relevant evidence and that the record, properly read, evinces

genuine issues of material fact regarding certain aspects of the

Union's treatment of him.

It is common ground that a district court's entry of

summary judgment engenders de novo review. See Houlton Citizens'

Coal., 175 F.3d at 184. Applying this standard, we assess the

facts in the light most agreeable 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 in this

way, demonstrates that there is no genuine issue as to any material

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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).

Even though the nonmovant is entitled to all reasonable

inferences from the record, there are limits. For instance, we

will not "draw unreasonable inferences or credit bald assertions,

empty conclusions, rank conjecture, or vitriolic invective."

Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st

Cir. 2007); see Kearney v. Town of Wareham, 316 F.3d 18, 22 (1st

Cir. 2002) ("Creating a genuine issue of material fact requires

hard proof rather than spongy rhetoric."). And "[i]f a nonmovant

bears the ultimate burden of proof on a given issue, []he must

present 'definite, competent evidence' sufficient to establish the

elements of h[is] claim in order to survive a motion for summary

judgment." Pina v. Children's Place, 740 F.3d 785, 795-96 (1st

Cir. 2014) (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822

(1st Cir. 1991)).

It is against this backdrop that we turn to Alston's

specific claims of error.

A. Fair Representation Claims.

The operative version of Alston's complaint alleged that

the Union's conduct toward Alston violated 42 U.S.C. § 1981.

Before the district court, Alston recast this allegation: he

posited that the Union's acquiescence in the Town's discriminatory

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and retaliatory conduct, as well as its "omissions when it had a

duty to act," transgressed the Union's duty of fair representation.

Alston went on to hypothesize that the breach of that duty violated

42 U.S.C. § 1981. See, e.g., Hill v. City of New York, 136 F.

Supp. 3d 304, 340 (E.D.N.Y. 2015) (recognizing union acquiescence

in employer's discrimination in violation of duty of fair

representation as viable theory of liability under section 1981).

The district court concluded that the proffered facts did not make

out a violation of Alston's right "to make and enforce contracts"

under section 1981. Alston, 2020 WL 1615408, at *5.

On appeal, Alston attempts to reinvent his argument. He

posits that "the Union violated its contractual obligations to him

by condoning and participating" in the Town's allegedly

discriminatory behavior. As framed, this claim appears to draw

its essence from state contract law, not from the Union's duty of

fair representation. See Breininger v. Sheet Metal Workers Int'l

Ass'n Loc. Union No. 6, 493 U.S. 67, 79 (1989) (explaining that

duty of fair representation does not arise under state contract

law); see also United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56,

62 (1981) (distinguishing claim for breach of CBA from claim for

breach of duty of fair representation).

The rub, though, is that Alston did not present a claim

for discriminatory breach of contract below. His attempt to switch

horses in midstream comes well beyond its expiration date: "[i]f

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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." Teamsters, Chauffeurs, Warehousemen & Helpers Union,

Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir.

1992). There are no extraordinary circumstances here, and to the

extent that Alston's reference to contractual obligation refers to

provisions of a contract between him and the Union, we deem that

argument waived. Cf. United States v. Lilly, 13 F.3d 15, 18 (1st

Cir. 1994) (finding argument waived where "current version"

differed materially from that presented to lower court).

So, too, Alston's sporadic attempts to tether his

allegations of discrimination and retaliation to section 1981 are

unavailing. In his appellate briefing, he neither delineates the

applicable legal standard for such claims nor makes the slightest

effort to apply section 1981 to the facts of record. Indeed, his

only reference to section 1981 in his appellate briefing appears

in an explanatory parenthetical to a cited case.2 For present

purposes, that parenthetical carries even less weight because it

Specifically, Alston's opening brief contains the following
2

cite and parenthetical: Bonilla v. Oakland Scavenger Co., 697
F.2d 1297, 1304 (9th Cir. 1982) (holding a union has an affirmative
obligation to oppose employment discrimination against its members
under 42 U.S.C. § 1981).

- 21 -
appears in a section of his opening brief that indiscriminately

combines his claims under sections 1981 and 1983.

We long have warned that "[i]t is not enough merely to

mention a possible argument in the most skeletal way, leaving the

court to do counsel's work, create the ossature for the argument,

and put flesh on its bones." United States v. Zannino, 895 F.2d

1, 17 (1st Cir. 1990). Trying to concoct section 1981 claims from

the meager morsels that Alston has provided would require us to do

exactly what Zannino forbids. Thus, with respect to Alston's

nascent section 1981 claims, "we see no reason to abandon the

settled appellate rule that issues adverted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation,

are deemed waived."3 Id.

Despite these waivers, Alston is not left holding an

entirely empty bag. His briefs repeatedly argue that the Union

improperly represented him, that it condoned the Town's

discriminatory and retaliatory conduct, and that it failed to

ensure that the CBA's anti-discrimination provision was honored by

the Town. These arguments closely resemble the duty-of-fair-

representation argument that he made below. See, e.g., Alston,

3 For the sake of completeness, we add that it would make no
difference if Alston had properly preserved his claims under
section 1981. As we explain below, see text infra, the theory of
liability that undergirds those claims — the Union's alleged breach
of the duty of fair representation — is unsupported by the record.

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2020 WL 1615408, at *4 ("Alston contends the Union participated in

and tacitly acquiesced to discriminatory and retaliatory conduct

against Alston in violation of its contractual duty of fair

representation to him."); see also Emmanuel v. Int'l Brotherhood

of Teamsters, Local Union No. 25, 426 F.3d 416, 419-20 (1st Cir.

2005) (explaining that duty of fair representation guarantees

fairness in union enforcement of CBA and representation of union

members). Accordingly, we deem them preserved and proceed to

address them on their merits.

At the outset, a brief primer may be useful. At all

relevant times, the Union had a CBA with the Town for a bargaining

unit that encompassed the Town's firefighters. "[A]s the exclusive

bargaining representative of the employees, . . . [a] [u]nion ha[s]

a statutory duty fairly to represent all of those employees, both

in its collective bargaining . . . and in its enforcement of the

resulting collective bargaining agreement." United Steelworkers

of Am. v. Rawson, 495 U.S. 362, 372 (1990) (quoting Vaca v. Sipes,

386 U.S. 171, 177 (1967)). This duty is commonly known as the

"duty of fair representation." Id.

A union breaches this duty by acting arbitrarily,

discriminatorily, or in bad faith toward a member. See Morales-

Vallellanes v. Potter, 339 F.3d 9, 16 (1st Cir. 2003). Negligence

— without more — is insufficient to establish a breach of the duty.

See Rawson, 495 U.S. at 372-73.

- 23 -
 The duty of fair representation is colored by the special

relationship between a union and its members. The nature of this

special relationship has a direct bearing on judicial review: in

determining whether a breach of the duty of fair representation

has occurred, an inquiring court's evaluation of the evidence

concerning the union's performance must be "highly deferential" to

the union. Air Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65,

78 (1991). This deference imposes a "heavy burden" on a member of

the bargaining unit who asserts a breach of the duty. Morales-

Vallellanes, 339 F.3d at 16.

A cardinal reason for this deference is that the

collective bargaining system necessarily "subordinates the

interests of an individual employee to the collective interests of

all employees in a bargaining unit." Vaca, 386 U.S. at 182. The

deference afforded to the union's decisionmaking recognizes its

obligation to balance the competing interests of all union members.

See Emmanuel, 426 F.3d at 420 ("[T]he reviewing court must accord

the union's conduct substantial deference[,] . . . [and t]his

standard of review recognizes that unions must have ample latitude

to perform their representative functions."); Dutrisac v.

Caterpillar Tractor Co., 749 F.2d 1270, 1273 (9th Cir. 1983)

("Because the union must balance many collective and individual

interests when it decides whether and to what extent to pursue a

particular grievance, courts should accord substantial deference

- 24 -
to the union's decisions."). Given this obligation, "[t]he

complete satisfaction of all who are represented is hardly to be

expected." Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953).

In the case at hand, Alston mounts two principal lines

of argument as to how the Union allegedly breached its duty of

fair representation. The first line of argument posits that the

Union acted in bad faith. "A union acts in bad faith when it acts

with an improper intent, purpose, or motive." Bryan v. Am.

Airlines, Inc., 988 F.3d 68, 74 (1st Cir. 2021) (quoting Good

Samaritan Med. Ctr. v. NLRB, 858 F.3d 617, 630 (1st Cir. 2017)).

To establish that the Union's exercise of judgment was in bad

faith, Alston must adduce "substantial evidence of fraud,

deceitful action or dishonest conduct." Amalgamated Ass'n of St.,

Elec. Ry. & Motor Coach Emps. of Am. v. Lockridge, 403 U.S. 274,

299 (1971) (quoting Humphrey v. Moore, 375 U.S. 335, 348 (1964)).

Having in mind the complexities inherent in a union's obligation

to balance a constellation of individual and collective interests,

it is possible for a union to act in good faith while at the same

time making rational decisions that may be adverse to an individual

union member's interests. See Barr v. United Parcel Serv., Inc.,

868 F.2d 36, 43-44 (2d Cir. 1989).

Alston's most loudly bruited evidence of bad faith

consists of an offer by the Union president (Trahon) to represent

Alston at the May 2014 meeting without disclosing that he had

- 25 -
advocated for more safety measures following Alston's "going

postal" comments. Relatedly, Trahon went to the meeting but, at

the insistence of a municipal official (DeBow), attended only as

an observer. As we explain below, these facts fall far short of

evincing bad faith.

We start with the "going postal" comments. Affording

the Union's decisionmaking the requisite degree of deference, it

was the Union's obligation both to protect its members from

perceived threats to their safety and to ensure that any discipline

meted out to Alston comported with the CBA. See id. at 43.

Although those obligations were not congruent, the Union had to do

what it could to carry out both of them. As long as the Union

satisfied its responsibility to balance those competing interests,

the fact that it took Alston's comments more seriously than he

might have wished was merely an unfortunate byproduct. See Ryan

v. New York Newspaper Printing Pressman's Union No. 2, 590 F.2d

451, 457 (2d Cir. 1979). ("Although it is unfortunate that in

this case the ultimate harm fell on appellants, drawing the line

elsewhere would, or reasonably could have been thought would, have

caused harm to others."). Alston hardly can question Trahon's

right — indeed, his duty — to advocate for reasonable safety

measures in the workplace. We conclude, therefore, that Trahon's

support of safety measures, standing alone, is grossly inadequate

to establish bad faith on the Union's part.

- 26 -
 Nor was Trahon's silence at the meeting a harbinger of

bad faith. Alston has identified no evidence that would permit a

reasonable inference that Trahon's offer to help him was deceitful,

dishonest, or prompted by some nefarious motive. What scant

evidence there is points in the opposite direction. The relevant

discussion at the meeting centered on whether the Town should

impose back-to-work conditions on Alston. After the Union

concluded that one of those conditions — the proposed fitness-for-

duty evaluations — might be in breach of the CBA, it repeatedly

communicated to the Town that it opposed the imposition of that

condition. Without prompting from Alston, Trahon called DeBow to

object to the medical evaluation as a return-to-work condition.

What is more, he later wrote to the Town in furtherance of that

objection. He also communicated with Alston to advise him about

how best to handle Chief Ford's direct order to appear for a

medical evaluation. At no point did Trahon or the Union act

contrary to Alston's stated interest in avoiding the proposed

fitness evaluations.

Nor does Trahon's silent attendance at the May 2014

meeting change the calculus. Trahon's silence at the meeting was

not through choice. Moreover, nothing in the record suggests that

Trahon's silence was a manifestation of an improper purpose.

Trahon offered Alston Union representation even without a request

from Alston; he attended the meeting knowing that Alston was

- 27 -
accompanied by his own counsel; he knew that it was standard

practice for the Union to defer to a member's personal attorney;

and it was DeBow — the Town official who was in charge of the

meeting — who dictated that Trahon's role would be limited to that

of an observer. For aught that appears, Trahon's choice was either

to forgo attending the meeting or to attend in silence. To

complete the picture, we think it relevant that when the meeting

ended, Trahon told Alston that the Union would stand by him and

help his cause. Alston neither responded nor subsequently asked

for Union assistance. He never asked the Union, say, to file a

grievance.

The bottom line is that Alston offered no definite,

competent evidence from which a rational factfinder could

determine that either Trahon or the Union acted in bad faith. As

a result, we discern no error in the district court's rejection of

Alston's duty-of-fair-representation claim insofar as that claim

was premised on allegations that the Union had acted in bad faith.

Alston's second line of argument as to how the Union

allegedly breached its duty of fair representation posits that the

Union acted in a discriminatory fashion and in retaliation for his

opposition to what he viewed as the Town's alleged discrimination

against him. To establish that the Union acted discriminatorily,

Alston must show "substantial evidence of discrimination that is

intentional, severe, and unrelated to legitimate union

- 28 -
objectives." Lockridge, 403 U.S. at 301; see Addington v. US

Airline Pilots Ass'n, 791 F.3d 967, 984 (9th Cir. 2015). To this

end, Alston marshals a wide-ranging collection of slights that he

strives to lay at the Union's doorstep. Stripped of the pejorative

rhetoric in which they are couched, these allegations — whether

viewed singly or in combination — cannot bear the weight that

Alston loads upon them.

Before training the lens of our inquiry on Alston's

allegations of discrimination, we offer a caveat. Because Alston's

allegations implicate incidents occurring over a period of several

years, many of which are fleeting, it would serve no useful purpose

for us to attempt to catalog them all. Instead, we deal only with

the more conspicuous of them. Alston's other allegations are

either fatally underdeveloped, patently meritless, or both.

Our starting point is Alston's claim that a finding of

discrimination can be premised on the Union's failure to oppose

Pender's promotion to temporary fire captain. Pender, however,

was himself a member of the Union, and the promotion was made by

the Board in the ordinary course of municipal business. At the

time, Alston neither opposed the promotion nor requested the Union

to file a grievance regarding it. That the Union did not itself

challenge an unopposed promotion of a Union member who had served

his unobjected-to punishment for the voicemail incident does not,

- 29 -
standing alone, comprise definite and competent evidence of

discrimination.4 See Lockridge, 403 U.S. at 301.

Relatedly, Alston tries to anchor his claim of

discrimination in the Union's failure to respond to Pender's

continued retaliation against him. But a union does not have a

duty of prescience, and it cannot be expected to deal with matters

of which it has no knowledge. Cf. McLeod v. Arrow Marine Transp.,

Inc., 258 F.3d 608, 612 (7th Cir. 2001) (concluding that union

"cannot be faulted" for failing to investigate issue neither

brought to union's attention nor raised in employees' grievances);

NLRB v. Greenleaf Motor Express, Inc., 872 F.2d 1027 (Table), at

*5 (6th Cir. 1989) (finding no acquiescence by union when "[u]nion

did not know of the Company's unfair labor practices"). On this

point, Alston testified that he did not report either of the two

allegedly retaliatory incidents (the February 2011 and October

2013 interactions) to the Union. Nor did he file a grievance

concerning Pender's conduct. Without a showing that the Union

knew of the alleged retaliation — and no such showing has been

made here — the Union's inaction could not be intentional and,

4 We add, moreover, that Alston's claim is undermined by the
absence of proof that the Union holds any sway over promotions,
that it has ever sponsored or opposed a particular promotion, or
that it is at all involved in the promotional process within the
Department.

- 30 -
thus, could not be discriminatory. See Lockridge, 403 U.S. at

301.

Next, Alston tries to hinge his claim of discrimination

on the Union's assistance to Pender in obtaining reimbursement for

the pay he had lost while suspended, thus ameliorating the

punishment levied for Pender's act of racial harassment. The

record is utterly barren, though, of any evidence suggesting that

the Union sought that reimbursement for some discriminatory

reason. Pender, a Union member, asked for Union representation,

and the Union provided it (as it was bound to do under its duty of

fair representation). See Rawson, 495 U.S. at 372. Ordinarily,

a union's representation of a union member facing discipline

constitutes a legitimate union obligation. See Lockridge, 403

U.S. at 301; see also Addington, 791 F.3d at 984 (explaining that

"a union must act with some legitimate union purpose that

'rationally promote[s] the aggregate welfare of employees in the

bargaining unit'" (quoting Rakestraw v. United Airlines, Inc., 981

F.2d 1524, 1535 (7th Cir. 1992))). Here, nothing about the Union's

action was out of the ordinary: that the reimbursement indirectly

lessened Pender's punishment for the voicemail incident does not

evince discrimination against Alston. See Lockridge, 403 U.S. at

301.

In a variation on this theme, Alston submits that the

reimbursement of Pender's pay "softened" Pender's discipline as

- 31 -
compared to the discipline meted out to Alston. This shift in

focus does little to rehabilitate Alston's failed claim of

discrimination. Advocating for members who request help on matters

such as pay and discipline is a quintessentially union objective,

see id., and the Union's pursuit of that objective in this instance

was not adverse to Alston.5

Alston also seeks to base his discrimination claim on a

salmagundi of loosely related acts and omissions. These include

the fact that the Union stopped inviting him to sing the national

anthem at Union social gatherings; the fact that the Union did

nothing when Alston told Trahon that he wanted to address the Union

membership; the fact that Trahon took no action in connection with

the "Leave" incident; the Union's suspension of Alston for his

failure to pay dues; the Union's connection with messages composed

by a Union member (Joe Canney); and the Union's failure to act

after the Town removed Alston from the payroll. None of these

acts and omissions moves the needle.

With respect to the national anthem, Alston sometimes

had been asked, on an impromptu and unpaid basis, to sing when he

5 We note that Alston himself could have sought Union
representation when his pay was halted in 2014 and asked the Union
to seek reimbursement for him. He chose not to do so. The absence
of evidence is not evidence of absence, and the fact that a request
for help was never made and therefore never denied cannot ground
a finding of discrimination. Cf. Bhatti v. Trs. of Bos. Univ.,
659 F.3d 64, 73 (1st Cir. 2011) (explaining that "a nonexistent
denial cannot support [a] discrimination claim").

- 32 -
attended Union social gatherings. To the extent that Alston

exhorts us to infer discrimination or retaliation from the drying-

up of invitations to sing, his exhortations ring hollow. There is

no evidence that the Union ever invited Alston to social gatherings

for the specific purpose of singing the national anthem. Rather,

the record reflects that if he happened to be present at such

gatherings, he would usually (but not always) be asked to sing.

After the voicemail incident, Alston — of his own volition —

stopped attending Union social gatherings, and the Union could no

longer ask him to sing because he was no longer in attendance.

There is no evidence that the Union denied any requests by Alston

to sing the national anthem, that it reduced the frequency of

invitations to sing at social gatherings when he chose to attend,

or that it prevented Alston from attending such gatherings. In

other words, Alston has neither articulated nor established how

the Union behaved differently after the voicemail incident. So

viewed, his allegations are insufficient to carry the "heavy

burden" that he bears in asserting a breach of the Union's duty of

fair representation. Morales-Vallellanes, 339 F.3d at 16.

Alston's attempt to link his claim of discrimination to

the Union's inaction after he told Trahon that he wanted to address

the Union membership is equally futile. Alston — as a Union member

in good standing — had the right to attend Union meetings and to

speak at those meetings. Yet, Alston testified that no one

- 33 -
prevented him from going to a Union meeting and addressing the

membership. Nor does anything in the record warrant an inference

that Trahon ever made arrangements for members to speak at Union

meetings — and Alston never says what he expected Trahon to do for

him. Because there is no evidence either that the Union treated

Alston differently from others who wished to speak or that it ever

denied Alston the opportunity to speak at a Union meeting, the

claim of discrimination founders. See Bhatti, 659 F.3d at 73.

The facts surrounding the "Leave" incident do not

advance Alston's cause. To begin, Alston neither reported the

incident to the Union nor filed a grievance with regard to it.

Nothing in the record suggests that the Union knew about the

incident at or near the time that it occurred.

When Trahon eventually learned about the incident, he

texted Alston to offer him the Union's support. Trahon also

suggested recourse to an employee assistance program, but Alston

replied that he was getting help on his own. On these bare facts,

Alston leaves us to guess what action he expected Trahon to take.

Because an inference of discrimination cannot be based on

guesswork, the aftermath of this incident cannot fuel Alston's

discrimination claim. See Lockridge, 403 U.S. at 301.

Similarly, the Union's suspension of Alston for failure

to pay Union dues does not offer fertile soil for a claim of

discrimination. To be sure, the Union did suspend Alston when he

- 34 -
failed to pay his dues. But Alston's claim of discrimination is

meritless: the suspension was carried out in full conformity with

the rules governing Union membership; those rules, on their face,

are not discriminatory; and Alston himself testified that his

suspension was not in any way retaliatory or discriminatory.

Alston's effort to hitch his claim of discrimination to

Joe Canney is futile. The genesis of this claim reposes in Joe

Canney's authorship of two blog posts and an email that disparaged

Alston. There is a dispute as to whether Joe Canney was a Union

officer at the relevant times, and we assume (favorably to Alston)

that he was. Even so, Joe Canney's trio of messages do not suffice

to allow an inference of discrimination.

We need not tarry. There is simply no evidence either

that Joe Canney was acting in his capacity as a Union officer when

he wrote the messages or that the Union in any way authorized,

endorsed, or condoned them.6 That is game, set, and match. See

Weigand v. NLRB, 783 F.3d 889, 897 (D.C. Cir. 2015) (declining to

hold union liable when it "did not authorize or otherwise condone

6 The evidence on this issue, though minimal, points the other
way: the Union took down the first post immediately after Alston
complained to Trahon. As to the second post, Alston himself did
not know of it until after he filed suit in federal court, which
suggests that it was swiftly removed. And, finally, although
Trahon was copied on Joe Canney's 2015 email, there is no evidence
that the Union either agreed with its content or republished it.
See Weigand v. NLRB, 783 F.3d 889, 897 (D.C. Cir. 2015).

- 35 -
the posting of the contested messages on the Facebook page"

accessible to only union members and maintained by the union).

Finally, the Union's failure to take action when the

Town removed Alston from the payroll does not manifest

discrimination. Alston never filed a grievance, and he does not

describe any particular action that he contends the Union should

have taken. By the same token, he does not identify any similar

situation in which the Union — without a request from the affected

firefighter — intervened. There is, therefore, no evidence from

which a rational factfinder could infer that Alston was treated

differently from other firefighters. Cf. Goodman v. Lukens Steel

Co., 482 U.S. 656, 669 (1987) (inferring discrimination when union

categorically "ignored racial discrimination claims on behalf of

blacks" while "pursuing thousands of other legitimate

grievances").

Although this completes the litany of loosely related

acts and omissions on which Alston relies, there are two more hooks

on which he endeavors to hang his discrimination claim. Both of

these hooks involve Lieutenant Cronin.

First, Alston notes the Union's failure to intervene

after the Town denied Cronin's request to have Alston work next to

Lieutenant Robinson at "street level." That request, though, was

made in 2013, and the record is undisputed that Trahon did not see

Cronin's letter until 2018 (well after Alston had been cashiered).

- 36 -
Nor did Alston otherwise bring either the request or the Town's

refusal to act on it to the Union's attention in the relevant time

frame. On this record, there is no way that the Union's omission

can be termed "intentional" and only intentional discrimination is

actionable under the duty of fair representation. See Lockridge,

403 U.S. at 301.

Second, Alston complains that the Union failed to

investigate Cronin's allegation that members of its executive

board told senior white firefighters to stay away from, or be

careful around, Alston. In support, Alston relies exclusively on

DeBow's handwritten notes of a conversation with Fay (Trahon's

predecessor as Union president). The notes, however, merely pose

a question: "Did E-Board members visit Station 7 to tell White

Sr. Members to stay away from or be careful around Alston?"

According to the notes, Fay's response was unambiguous: "No,

never. That didn't happen. Ron [Cronin] is lying." Although we

must draw all reasonable inferences in Alston's favor at the

summary judgment stage, no rational factfinder could infer from

this scrap of evidence alone that members of the Union's executive

board communicated any warning at all to senior white firefighters.

See Cabán Hernández, 486 F.3d at 8. The "definite, competent

evidence" needed to defeat a motion for summary judgment, Pina,

740 F.3d at 796, is wholly lacking. As we repeatedly have warned,

"conjecture cannot take the place of proof in the summary judgment

- 37 -
calculus." Bennett v. Saint-Gobain Corp., 507 F.3d 23, 31 (1st

Cir. 2007).

Of course, the whole sometimes can be greater than the

sum of the parts. Thus, a series of events, none of which is by

itself sufficient to show discrimination, may in cumulation

suffice. See Lockridge, 403 U.S. at 301; see, e.g., Trail v. Int'l

Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 542

F.2d 961, 968 (6th Cir. 1976). Here, however, Alston does not

articulate how the Union's actions collectively support an

inference of discrimination or how those acts and omissions

interlock to form a pattern of discrimination. None of these

events independently evinces either discriminatory intent or

racial animus and, absent some developed argumentation — and Alston

offers none — a rational factfinder could not infer that these

events, taken in the ensemble, evince either discriminatory intent

or racial animus. See Zannino, 895 F.2d at 17.

The short of it is that Alston has plucked a smattering

of discrete events from a six-year history of antipathy between

him and the Town, tried to cast the Union as a villain, and spun

a narrative that tries to attribute his troubles with the Town to

the Union. This narrative does not withstand scrutiny because it

is spun not out of hard facts and supportable inferences but,

rather, out of wispy strands of speculation and surmise. For this

- 38 -
reason, the district court did not err in granting summary judgment

to the Union on Alston's duty-of-fair-representation claims.

B. Remaining Claims.

We need not linger long over Alston's remaining claims.

He asserts two claims under 42 U.S.C. § 1983 and a final claim

under 42 U.S.C. § 1985. All of these claims strike by-now-familiar

chords: they rely on evidence already discussed (and found

wanting) in other contexts.

With respect to section 1983, he first alleges that the

Union discriminated against him on the basis of race in violation

of his equal protection rights. He further alleges that the Union

retaliated against him for exercising his First Amendment right to

speak out against race discrimination. And with respect to section

1985, he alleges that the Union, the Town, and various Town

officials engaged in a civil conspiracy to deprive him of

constitutionally assured rights and privileges. Before us, he

challenges the district court's grant of summary judgment in favor

of the Union on these three claims.

To maintain a claim under section 1983, Alston must

establish both that the Union acted under color of state law and

that its conduct deprived him of a federally protected right. See

Soto v. Flores, 103 F.3d 1056, 1061-62 (1st Cir. 1997); Martinez

v. Colon, 54 F.3d 980, 984 (1st Cir. 1995). A person is a state

actor under section 1983 if he is a state official, if "he has

- 39 -
acted together with or has obtained significant aid from state

officials," or if "his conduct is otherwise chargeable to the

State."7 Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982);

see Gonzalez-Morales v. Hernandez-Arencibia, 221 F.3d 45, 49 (1st

Cir. 2000). Where, as here, the plaintiff proceeds against a

private entity, we must plumb the record for evidence that that

entity "aligned [itself] so closely with either state action or

state actors that the undertow pulls them inexorably into the

grasp" of section 1983. Perkins v. Londonderry Basketball Club,

196 F.3d 13, 17 n.1, 18 (1st Cir. 1999) (quoting Roche v. John

Hancock Mut. Life Ins. Co., 81 F.3d 249, 253-54 (1st Cir. 1996)).

The Union argued, in its brief on appeal, that it never

undertook joint activities regarding Alston either with the Town

or with any Town officials. Relatedly, the Union argued that the

actions of which Alston complains, including the representation of

Pender and the support of safety measures after Alston's "going

postal" comments, are textbook examples of union conduct. In the

Union's view, it necessarily follows that Alston failed to

7 In our ensuing state-action analysis, we treat the Town —
consistent with Alston's theory of the case — as a state actor.
See Perkins v. Londonderry Basketball Club, 196 F.3d 13, 18 n.3
(1st Cir. 1999); see also Nat'l Collegiate Athletic Ass'n v.
Tarkanian, 488 U.S. 179, 191 (1988) ("[Section 1983] liability
attaches only to those wrongdoers who carry a badge of authority
of a State and represent it in some capacity. . . ." (internal
quotations omitted)).

- 40 -
establish the Union's requisite alignment with state action or

state actors. See Perkins, 196 F.3d at 18.

In his reply brief, Alston offered no rebuttal to this

argument. But he did counter — albeit in support of his section

1985 claim — that the Union conspired with the Town. Because a

conspiracy between a state actor and a private party to accomplish

a prohibited end constitutes state action, see Casa Marie, Inc. v.

Superior Ct. of P.R. for Dist. of Arecibo, 988 F.2d 252, 259 (1st

Cir. 1993), we consider his section 1983 and section 1985 claims

together, and we treat the evidence that Alston cites in support

of his section 1985 claim as comprising his best evidence of state

action.

To establish his claim for civil rights conspiracy,

Alston must show that "two or more persons act[ed] in concert to

commit an unlawful act, or to commit a lawful act by unlawful

means." Earle v. Benoit, 850 F.2d 836, 844 (1st Cir. 1988)

(quoting Hampton v. Hanrahan, 600 F.2d 600, 620-21 (7th Cir.

1979)). The principal elements that Alston must satisfy in this

instance are the existence of "an agreement between the parties to

inflict a wrong against or injury upon another, and an overt act

that results in damages." Id. (internal quotations omitted)

(quoting Hampton, 600 F.2d at 620-21). In evaluating whether the

record supports the existence of the claimed conspiracy, we must

take into account the totality of the circumstances. See id. at

- 41 -
843. Because "the agreement that rests at the heart of a

conspiracy is seldom susceptible of direct proof," we typically

rely on inferences to conclude that such an agreement was made.

Id. Those inferences, however, must be reasonable and must be

supported by a plausible rendition of the facts of record. See

Est. of Bennett v. Wainwright, 548 F.3d 155, 178 (1st Cir. 2008);

Earle, 850 F.2d at 843.

Alston's main argument on this point seems to be that

the Union had an implied agreement with the Town to condone

discrimination and retaliation. In support, he calls our attention

to the Union's inaction in two instances: the Union did not object

to the Town's denial of Lieutenant Cronin's request to have Alston

work next to Lieutenant Robinson; and the Union sat by and

"allowed" Pender to be promoted. Neither instance advances

Alston's cause.

Here, it is undisputed that Union leadership did not

learn of Cronin's request until 2018 — roughly five years after

the request was made and long after Alston had ceased working.

Moreover, the record is devoid of any evidence that the Union had

anything to say about Pender's promotion. See supra note 4 and

accompanying text. Above and beyond those gaps in the record, the

most significant data point is that Alston cites no evidence,

direct or circumstantial, suggesting that the Union's inaction

with respect to those particular matters was as a result of

- 42 -
coordination with the Town. Consequently, there is no principled

way in which we can find that either instance evinces purposeful

participation in concert with the Town. See Lugar, 457 U.S. at

941.

Alston also suggests that another instance of the

Union's inaction — its failure to follow up when Cronin speculated

that the Town's human resources director, DeBow, "had a conflict

of interest in investigating Alston's complaints" — is evidence of

concerted activity. This suggestion seemingly refers to a

statement in Cronin's 2013 letter requesting that Alston be

assigned to work next to Lieutenant Robinson. In that communiqué,

Cronin griped that the Town had selected DeBow, who was named in

Alston's MCAD complaint, to "investigat[e] [her]self." There is,

however, no evidence that anyone in Union leadership was aware of

Cronin's concern until 2018, nor is there any evidence that the

Union chose not to object to DeBow's investigative role due to

some agreement, express or implied, with the Town.

Alston next claims that "[t]he Union and [the Town]

concealed Trahon's conflict of interest in representing Alston at

the 2014 disciplinary meeting" — the meeting that resulted in the

imposition of a set of conditions on Alston's return to work. This

claim is baseless. The idea that Trahon (the Union president) had

a conflict of interest apparently rests on evidence that DeBow

instructed Trahon that he could only observe during the meeting.

- 43 -
By insisting that Trahon's role at the meeting be limited to that

of an observer, DeBow was exercising her prerogative as the

official in charge of the meeting. For aught that appears,

Trahon's choice at that point was either to agree to assuming

observer status or to refrain from attending the meeting. Seen in

this light, the record does not bear out Alston's contention that

Trahon, by heeding the stipulation that DeBow unilaterally

imposed, was acting in concert with the Town against Alston's

interests. There is, moreover, other evidence in the record

showing, with conspicuous clarity, that DeBow and Trahon were not

in lockstep concerning the return-to-work conditions. The Union

strongly opposed DeBow's proposed medical-evaluation condition and

repeatedly made its opposition to the return-to-work conditions

known to municipal officials notwithstanding Alston's decision not

to request Union assistance regarding the matter. Thus, Alston's

ipse dixit that the Union "allow[ed] [the Town] to impose the

return to work conditions on Alston that ultimately led to his

termination" is too weak to underpin his "state action" claim.

Cf. Casa Marie, 988 F.2d at 259 (refusing "to credit

. . . conclusory [conspiracy] allegation[s] as a sufficient basis

for finding 'state action'").

Taking a different tack, Alston contends that,

subsequent to his "going postal" comments, the Union "fueled" the

Town's "false narrative" that Union members needed police

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protection from him. But even if we assume, for argument's sake,

that both the Town and the Union deemed Alston a threat to the

safety of other firefighters and sought to depict him as such, the

record is bereft of any evidence, direct or circumstantial, that

the Town and the Union sought to do so in concert. What evidence

there is points in the opposite direction: the Town not only

rejected the Union's request for a police presence at the

firehouses but also refused to furnish the Union with any

information about Alston's threats (insisting that such

information was confidential). That both the Town and the Union

independently concluded that a firefighter making comments about

shooting up a workplace posed a threat to employee safety, without

more, falls far short of establishing that the two actors

coordinated their response. Cf. Earle, 850 F.2d at 843 (declining

to infer conspiratorial agreement between state troopers and town

officers when state troopers had an independent duty to respond to

defendant's threats to safety); Ciambriello v. Cnty. of Nassau,

292 F.3d 307, 324 (2d Cir. 2002) (noting that "conclusory

allegations of conspiracy ring especially hollow in light of the

adversarial relationship between the County and [the union]").

Alston's section 1985 claim against the Union is no more

robust. "Section 1985 provides a remedy for acts of civil

conspiracy in which two or more individuals conspire for the

purpose of depriving another of rights or privileges accorded to

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them by law." Spiegel, 988 F.3d at 577; see 42 U.S.C. § 1985(3).

Virtually by definition, an essential element of a section 1985

claim is a conspiracy between the defendant (here, the Union) and

another party. See Griffin v. Breckenridge, 403 U.S. 88, 102

(1971); Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996). As we

already have made clear, Alston has failed to substantiate his

allegations of conspiratorial conduct involving the Town and the

Union.

In sum, Alston has identified no evidence in the record

adequate to support either a finding of state action on the Union's

part or a finding of concerted activity involving the Union and

the Town. It necessarily follows that both his section 1983 claims

and his section 1985 claim fail as a matter of law. Inasmuch as

the record contains no genuine issue of material fact as to the

Union acting under color of state law or purposefully participating

in a conspiracy with the Town, we hold that the district court did

not err in granting summary judgment to the Union on these claims.

III. CONCLUSION

We need go no further. Although Alston and the Union

may not have always been on the same page, that is a far cry from

the requisite showing that the Union engaged in race-based

discrimination or retaliation against Alston, that it failed to

afford him fair representation, that it acted in ways calculated

to deny his equal protection or free speech rights, or that it

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purposefully participated with the Town in a conspiracy proscribed

under the civil rights statutes. For the reasons elucidated above,

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

Union is

Affirmed.

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