Barry v. Moran

United States Court of Appeals
For the First Circuit

No. 10-1607

DENISE M. BARRY; ELIZABETH H. GOLDEN; PATRICIA J. MCDONOUGH;
ELAINE MESITI; LILA BROWN; MARY M. KANE; and JUDITH A. KELLEY;

Plaintiffs, Appellants,

v.

ROBERT J. MORAN; PAUL A. CHRISTIAN; WILLIAM KESSLER; WILLIAM
HITCHCOCK; RONALD KEATING; RODERICK FRASER; JOSEPH FINN; JOHN DOE
and/or JANE DOES 1-50; and CITY OF BOSTON FIRE DEPARTMENT,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Boudin, and Lipez, Circuit Judges.

Thomas F. Feeney, with whom Feeney & Associates at Law were on
brief, for appellants.
Dawn M. Beauchesne, Assistant Corporation Counsel, with whom
Ian D. Prior was on brief, for appellees.

November 22, 2011
 LIPEZ, Circuit Judge. In this civil rights suit,

appellants allege that a pattern of cronyism and nepotism in the

employment decisions of the Boston Fire Department ("BFD" or

"Department") rose to the level of actionable political

discrimination in violation of the First Amendment. Appellants

Denise Barry, Elizabeth Golden, Patricia McDonough, Elaine Mesiti,

Lila Brown, Mary Kane and Judith Kelley are civilian employees of

the BFD. Along with another employee,1 they filed suit in

Massachusetts state court alleging that certain employment actions

affecting their status with the BFD were unconstitutional,

tortious, and retaliatory. Specifically, they alleged that,

because they chose not to associate politically with a powerful

group of individuals at the BFD and in the government of the City

of Boston, they were passed over for promotions and other public

benefits that they otherwise would have received.

The appellees, defendants below, include the BFD2 and

numerous BFD supervisors and former supervisors. After removing

the case to federal court, the appellees moved for summary

judgment, arguing that no evidence linked the challenged employment

1
Jane Green, a plaintiff below, entered into a settlement
agreement with the defendants and is not a party to this appeal.
2
The BFD, as a department of the City of Boston, is not an
entity subject to suit under Section 1983. See Dwan v. City of
Boston, 329 F.3d 275, 278 n.1 (1st Cir. 2003). The plaintiffs'
second and third Amended Complaints properly name the City of
Boston as defendant in place of the BFD.

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decisions to an identifiable political group, cause, or belief.

Without elaboration, the district court granted the motion as to

the appellants' federal claims, brought under 42 U.S.C. § 1983, and

remanded the state law claims to the Massachusetts state court.

We affirm. The First Amendment's prohibition of

political discrimination is a component of its general protection

of the rights of freedom of speech and association. Elrod v.

Burns, 427 U.S. 347, 356-57 (1976). Yet not all speech and

association falls within the ambit of the First Amendment. A

successful claim that a public employer violated First Amendment

rights through adverse employment decisions motivated by a

plaintiff's associational choices requires some evidence that the

association at issue is political or otherwise constitutionally

protected. The record in this case reveals insufficient evidence

of this sort to create a triable issue of fact. However unsavory

it may be, preferential treatment in public employment decisions

unrelated to protected speech or association does not infringe upon

freedoms secured by the First Amendment.

I.

A. Factual Background

We recount the facts in the light most favorable to the

appellants, the party opposing summary judgment.3 Agusty-Reyes v.

3
The record in this case leaves much to be desired. Not only
did appellants fail to comply with Federal Rule of Appellate
Procedure 30(d) by failing to paginate appellees' exhibits in the

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Dep't of Educ. of P.R., 601 F.3d 45, 48 (1st Cir. 2010). The seven

plaintiffs are long-time civilian employees of the BFD, who, at the

time that this suit was filed, had between eight and 39 years of

experience with the Department. The defendants are high-ranking

officials or former officials within the BFD and the City of

Boston. At the time the motions for summary judgment were filed,

the defendants held the following positions: Deputy Chief (Finn and

Hitchcock), Chief (Keating), Director of Human Resources ("HR") for

the BFD (Moran), Commissioner and former Commissioner of the BFD

(Fraser and Christian, respectively), and Assistant Director of HR

for the City of Boston (Kessler). The defendant most involved in

the plaintiffs' allegations is Moran. In his role as Director of

HR for the BFD, he performed a preliminary screening of applicants

for civil positions, conducted initial interviews and forwarded top

candidates to the Commissioner. Final authority for all personnel

decisions, including hiring, firing and promotion, rested with the

Commissioner of the BFD, a position held by defendant Christian

appendix, but they also failed to comply with district court rules
intended to ease the court's review of factually complex cases on
motions for summary judgment. See D. Mass. L.R. 56.1. Much of the
appellants' Rule 56.1 Statement is merely a verbatim recitation of
allegations made in the complaint, as are their responses to
certain interrogatories. Thus the appellants have failed to
fulfill their obligation to organize the record and direct the
court to the materials necessary to evaluate their claims. See
Taylor v. Am. Chemistry Council, 576 F.3d 16, 32 n.16 (1st Cir.
2009) ("It is not the court's responsibility to 'ferret out and
articulate' the record evidence material to the appellants'
claims."). Nevertheless, we have looked to the record to determine
whether triable issues of fact exist in this case.

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from November 2001 to February 2006, and subsequently by defendant

Fraser.

There is no single incident or actor to which all the

plaintiffs point as the basis for their claims.4 Rather, they

allege a pattern of discrimination on the basis of political

affiliation going back to at least 2000,5 which was evident in

myriad ways with respect to each plaintiff. That said, there are

important commonalities among the factual circumstances underlying

the plaintiffs' claims.

All of the plaintiffs held administrative positions in

the BFD, serving as clerk typists or administrative assistants. To

varying degrees, each of the plaintiffs moved up within the

Department over the course of their employment, receiving

additional pay, responsibilities, and new job titles. However, for

each plaintiff, promotions within the Department slowed or ceased

4
The plaintiffs originally sought to bring their claims as a
class action on behalf of all employees of the BFD who had suffered
similar treatment, but the motion for class certification was
denied. In doing so, the district court adopted the recommendation
of a magistrate judge, who explained that "the record reveals an
assortment of highly individualized employment decisions involving
individual plaintiffs having different backgrounds and employment
experience and seeking a diverse array of employment positions."
Barry v. Moran, No. 05-10528 (D. Mass. Apr. 7, 2008) (Report and
Recommendation).
5
Although the plaintiffs claim damages for events that
occurred from 2000 onward, they point to events predating that
period as evidence of a pattern and practice within the BFD, which
they argue helps to establish an impermissible motive for the
challenged employment decisions.

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at a certain point, and each was repeatedly denied or dissuaded

from applying for promotions, step increases or transfers, despite

the fact that they were qualified for the positions they sought.

For example, one of the plaintiffs, Denise Barry,

identified eleven BFD positions that she applied for between 2000

and 2006, none of which she received. Another plaintiff, Patricia

McDonough, submitted seven unsuccessful applications between 1999

and 2004 for positions within the BFD. Yet another plaintiff, Lila

Brown, identified nine positions within the BFD that she

unsuccessfully applied for between 1999 and 2000. In the case of

each of the plaintiffs, the positions for which they applied

represented desirable promotions or transfers that would have

brought them added responsibilities, higher salaries and/or

opportunities for advancement within the BFD.

While the circumstances surrounding each of the

challenged employment decisions differ, certain trends emerge.

First, equally-qualified applicants from within the BFD were often

passed over in favor of individuals from outside the BFD, contrary

to a policy of preference for in-house candidates. Second,

individuals were hired who lacked requisite qualifications for the

jobs for which they were hired, and in some cases job descriptions

and minimum qualifications were altered to aid particular

candidates. Third, hiring was occasionally completed without the

public posting of jobs as required by BFD and union rules.

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Finally, the candidates who benefitted from these practices were

often friends, neighbors or relatives of influential BFD employees,

powerful people within city government or elected officials. As

one plaintiff testified in her deposition, "persons were appointed

to positions in the Boston Fire Department because of who they

knew, who sponsored them, and who supported them, rather than

merit."

Thus, the plaintiffs are individuals who were passed over

or denied jobs and promotions in favor of others who had a

connection to those in power in the BFD or city government. During

this time, power in the BFD was largely located in two informal

groups that the plaintiffs identify as the "Hyde Park Group" and

the "South Boston Group." Although one need not be a resident of

one of these two Boston locales to be affiliated with the group,

each group was loosely organized around certain powerful people who

lived in those locales. The "Hyde Park Group" is alleged to have

especially benefitted from its connections to Boston Mayor Thomas

M. Menino, who was a resident of the neighborhood. Many, if not

most, of the successful applicants for positions within the BFD

during this time enjoyed the benefit of the familial, social and

professional connections that linked members of these two

neighborhood-based groups.

For example, the plaintiffs identify a position that five

of them would have applied for in 2003 if they had not been

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discouraged from doing so. The person who was hired for the job

was already a BFD employee, and was dating someone who worked in a

City Councilor's office. She also happened to be related to one of

the defendants. Notably, the successful applicant had been among

those who conducted the first round of interviews for the position,

and, after it was determined that she would receive the position,

the job grade was raised to match her level. Independent of this

particular incident, she also received benefits in the form of paid

vacation and free tuition for continuing education classes that

were not available to the plaintiffs.

Similarly, in late 2003, plaintiff Barry inquired about

a permanent assignment to a position she had been temporarily

filling while it was vacant. Despite the fact that she had

performed the job satisfactorily, she was told that someone from

City Hall would be taking the position, although this person never

materialized. Ultimately, the position went to a former BFD

employee who was living out of state at the time, but who had close

connections to two chiefs of the BFD and was a "great friend" of

another influential person in the Department. When Barry

complained that she did not receive the position, and observed that

many of those who had been hired by the BFD had some pre-existing

relationship with influential BFD and city officials, defendant

Moran allegedly replied "[w]ell, if you're not into politics,

little girl, then you're not into a position here." All told,

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plaintiffs identify dozens of positions that were filled by

relatives, neighbors and friends of high-ranking officials within

the BFD and Boston city government.

The conduct alleged by plaintiffs is not unprecedented in

the BFD. A January 2000 report issued by the Boston Fire

Department Review Commission noted that "a significant number" of

respondents to a department-wide survey "complained of the 'old boy

network' in place throughout the department."6 The report went on

to state that "[t]here exists a strong perception that if you are

not among the 'in' crowd, you will not succeed, you will not

receive better assignments, you will not be encouraged to take a

leadership role and you will not be taken seriously regarding

suggestions for improvement." While these observations were made

in regard to efforts to improve racial and gender diversity within

the BFD, they are also consistent with the allegations raised by

plaintiffs in this case.

6
This report, titled "The Challenge: Managing Tradition,
Diversity and Change," was prepared by the Boston Fire Department
Review Commission. Mayor Menino appointed this body to address
various administrative issues in the BFD, including problems with
training, discipline, and integration of women and racial and
ethnic minorities. The appellees offered the report to illustrate
the efforts that the BFD has taken to be a more inclusive and
professionally managed organization. In particular, the appellees
point to the report's recommendation of a merit-based hiring system
and argue that, in expecting to benefit from seniority and the fact
that they were in-house applicants, the appellants represent the
old, discredited system and are opposed to positive change.

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 Additionally, in October 2000, Mayor Menino issued an

executive order stating that "discrimination, retaliation and

harassment are contrary to City policy and are also illegal. Such

conduct is defined as follows: . . . Conduct that conditions a

person's hiring, compensation, terms and conditions of employment

or access to services provided by the City on that person's . . .

political affiliation." According to plaintiffs, this executive

order was intended to address "a historical pattern and practice of

political affiliation discrimination, a.k.a. 'patronage' or

'cronyism,' within Boston City departments, including but not

limited to Defendant Boston Fire Department."

B. Procedural Background

On March 14, 2005, plaintiffs filed a complaint in

Suffolk Superior Court raising numerous claims under federal and

Massachusetts state law, including claims under 42 U.S.C. § 1983

alleging a violation of their First Amendment right to be free of

discrimination on the basis of political affiliation. The

complaint sought injunctive relief, declaratory relief and damages

against the various defendants. In turn, the defendants removed

the case to federal court. Subsequently, the plaintiffs filed two

amended complaints adding additional plaintiffs and allegations.7

7
In contrast to their Third Amended Complaint, which only
alleges a violation of First Amendment rights, the plaintiffs'
brief on appeal states summarily that their Section 1983 claim
alleges violations of the First, Fifth, Ninth and Fourteenth
Amendments. However, their brief and their statements at oral

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The defendants moved for summary judgment. With the exception of

one plaintiff (whose claims were later settled), the district court

granted the motions on the Section 1983 claims and remanded the

state law claims to Massachusetts state court. There was no oral

argument on the summary judgment motions,8 and the district court

did not explain its reasoning.9

II.

We review the district court's grant of summary judgment

de novo, viewing the record in the light most favorable to the non-

argument focus exclusively on their First Amendment political
discrimination argument and never explain the basis for claims
alleging violations of other rights secured by federal law.
Accordingly, we address only the First Amendment political
discrimination argument.
8
A hearing was scheduled with the expectation of oral
argument on the summary judgment motions, but the plaintiffs'
attorney failed to appear.
9
Appellants argue that it was legal error for the district
court to fail to explain its summary judgment order. They ask us
to remand for that explanation. We may quickly dispose of this
argument. Federal Rule of Civil Procedure 52(a) explicitly states
that district courts are "not required to state findings or
conclusions when ruling on a motion under Rule 12 or 56." Fed. R.
Civ. P. 52(a)(3); see also Zayas v. Bacardi Corp., 524 F.3d 65, 70
(1st Cir. 2008) ("Though a district court ordinarily ought to
explain the reasoning behind a grant of summary judgment, it is not
obliged to do so."); Grossman v. Berman, 241 F.3d 65, 68 (1st Cir.
2001) ("[A] trial court, on a motion for summary judgment, has no
absolute obligation either to make specific findings of fact or to
elaborate upon its view of the controlling legal principles."). In
some cases we have remanded for an explanation of the district
court's reasoning where necessary to evaluate the decision. See
Grossman, 241 F.3d at 68-69 (remanding for elaboration where the
bankruptcy court's "enigmatic explanation" and the district court's
"terse affirmance" "supplie[d] insufficient guidance for reasoned
review"). We see no need to do so here.

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moving party. Velez v. Thermo King de P.R., Inc., 585 F.3d 441,

446 (1st Cir. 2009). Summary judgment is appropriate where the

moving party shows that there is no genuine issue of material fact,

and that it is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(a). "Although we give the non-moving party the benefit

of all reasonable inferences, a party cannot rest on 'conclusory

allegations, improbable inferences, or unsupported speculation' to

defeat a motion for summary judgment." Welch v. Ciampa, 542 F.3d

927, 935 (1st Cir. 2008) (quoting McCarthy v. Nw. Airlines, Inc.,

56 F.3d 313, 315 (1st Cir. 1995)). Rather, "[t]o defeat a motion

for summary judgment, the nonmoving party 'must set forth specific

facts showing that there is a genuine issue for trial.'" Id.

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256

(1986)). Appellants insist that they have set forth facts in the

summary judgment record creating genuine issues for trial.

A. Legal Principles

It is well-established that "non-policymaking public

employees are protected from adverse employment decisions based on

their political affiliation." Padilla-Garcia v. Guillermo

Rodriguez, 212 F.3d 69, 74 (1st Cir. 2000) (reviewing the Supreme

Court's decisions in Rutan v. Republican Party of Ill., 497 U.S. 62

(1990); Branti v. Finkel, 445 U.S. 507 (1980); and Elrod v. Burns,

427 U.S. 347 (1976)). As the Court explained in Elrod, "political

belief and association constitute the core of those activities

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protected by the First Amendment. . . . [And], if there is any

fixed star in our constitutional constellation, it is that no

official, high or petty, can prescribe what shall be orthodox in

politics . . . ." 427 U.S. at 356 (internal quotation mark

omitted).

Traditional political patronage systems reward support

for the political party in power with jobs or other public

benefits, thereby placing undue pressure on public employees and

job applicants to conform their political beliefs and conduct

accordingly.10 Thus, "[t]he cost of the practice of patronage is

the restraint it places on freedoms of belief and association."

Id. at 355. For those holding government jobs, the ever-present

"threat of dismissal for failure to provide that support

unquestionably inhibits protected belief and association." Id. at

359. Similarly, for those seeking governmental employment,

promotion or transfer, the effect of requiring association or

support for a particular party, candidate or cause impermissibly

10
Of course, this concern applies only to government employees
in non-policymaking positions. In Branti, the Court explained that
"if an employee's private political beliefs would interfere with
the discharge of his public duties, his First Amendment rights may
be required to yield to the State's vital interest in maintaining
governmental effectiveness and efficiency." 445 U.S. at 517; see
also Padilla-Garcia, 212 F.3d at 74 n.2 ("[P]olicymaking and
confidential employees might justifiably be dismissed on the basis
of their political views."). However, none of the appellants
allege that they held, or sought to be appointed to, policymaking
or confidential positions.

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impinges upon the freedoms of belief and association. See Rutan,

497 U.S. at 79.

Claims of political discrimination in public employment

are evaluated under a two-part test established by the Court in Mt.

Healthy City School District Board of Education v. Doyle, 429 U.S.

274 (1977). Under this test, the plaintiff must first show that

"his conduct was constitutionally protected, and that this conduct

was a 'substantial factor' or to put it in other words, that it was

a 'motivating factor' [in the adverse employment action]." 429

U.S. at 287. If this showing is made, the defendant has the

opportunity to show "by a preponderance of the evidence that it

would have reached the same decision as to . . . [the adverse

employment action] even in the absence of the protected conduct."

Id.; see also Padilla-Garcia, 212 F.3d at 74-78 (applying Mt.

Healthy test).

In evaluating claims of political discrimination, the

Court has been clear that constitutional protection extends to the

decision not to associate with a political party or faction. See

Rutan, 497 U.S. at 76 ("The First Amendment prevents the

government, except in the most compelling circumstances, from

wielding its power to interfere with its employees' freedom to

believe and associate, or to not believe and not associate."

(emphasis added)); Welch, 542 F.3d at 939 ("The freedom not to

support a candidate or cause is integral to the freedom of

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association and freedom of political expression that are protected

by the First Amendment."). Thus, "coercion [of belief] is equally

unlawful when it is directed toward apolitical career employees as

when it is directed towards a party's political opponents."

Acosta-Orozco v. Rodriguez-de-Rivera, 132 F.3d 97, 101-02 (1st Cir.

1997).

However, in order to meet the first prong of the Mt.

Healthy test and receive First Amendment protection, the

association, or refusal to associate, must be political in nature

or implicate some other constitutional concern. As the Supreme

Court has explained, "the First Amendment invests public employees

with certain rights, it does not empower them to 'constitutionalize

the employee grievance.'" Garcetti v. Ceballos, 547 U.S. 410, 420

(2006) (quoting Connick v. Myers, 461 U.S. 138, 154 (1983)).

Similarly, we have noted that "the first amendment does not protect

against all deprivations arising out of an act of association

unless the act itself - say, joining a church or a political party,

speaking out on matters of public interest, advocacy of reform -

falls within the scope of activities eligible for inclusion within

the constitutional tent." Correa-Martinez v. Arrillaga-Belendez,

903 F.2d 49, 57 (1st Cir. 1990), overruled on other grounds by

Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61 (1st

Cir. 2004). Thus, mere personal association without political

overtones does not implicate First Amendment concerns, and "the

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burden of proof [is] on the plaintiff to demonstrate that her

association was political and not personal." Padilla-Garcia, 212

F.3d at 76.

Without purporting to be exhaustive, the term

"political," in the relevant First Amendment sense, pertains to the

conduct of government, public policy or public controversies. See

Padilla-Garcia, 212 F.3d at 76 (noting that support for a political

candidate - in a campaign or as member of an administration - is an

archetypal political association); LaRou, 98 F.3d at 662 (finding

that there was no protected activity, where plaintiff was not

motivated by campaign plans, affiliation with a particular

candidate, or beliefs animating a disputed election); Correa-

Martinez, 903 F.2d at 57 (noting that plaintiff must allege

discrimination on the basis of "ideology" or "partisan

affiliation"); Black's Law Dictionary 1276 (9th ed. 2009) (defining

"political" as "[p]ertaining to politics; or relating to the

conduct of government"). Given this understanding of the term

"political," "[s]upport for a political candidate . . . is an

example of an association that inevitably implicates the right to

engage in association for the advancement of beliefs and ideas."

Padilla-Garcia, 212 F.3d at 76 (internal quotation marks omitted).

Nevertheless, the label "political" does not necessarily implicate

partisan politics and traditional political parties. See id.

(noting that "factions within one party can represent different

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political philosophies," and association with one faction in

opposition to another is subject to First Amendment protection).

There is no mechanical test for determining whether the

association at issue is sufficiently political to trigger

constitutional protection. "[W]e have held, time and again, that

circumstantial evidence alone can support a finding of political

discrimination." Anthony v. Sundlun, 952 F.2d 603, 605 (1st Cir.

1991). We have previously observed that a "highly-charged

political atmosphere" accompanying a shift of power from one

political party to another, along with the fact that the plaintiffs

and defendants are of competing political persuasions, may be

probative of discriminatory animus. Acevedo-Diaz v. Aponte, 1 F.3d

62, 69 (1st Cir. 1993). Additionally, the fact that a plaintiff

was actively involved in electoral politics in a prominent public

role can help establish a political motive for an adverse

employment action. Id. Our cases contain many other examples of

evidence indicative of the political motivation for challenged

employment actions. See, e.g., Welch, 542 F.3d at 940-41 (noting

that after remaining neutral in a political controversy the

plaintiff was replaced by a vocal supporter of new police chief);

Acosta-Orozco, 132 F.3d at 102 (finding that failure to afford

plaintiffs a hearing to contest adverse employment action could

fairly imply that the stated apolitical reason for the action was

pretextual); Acevedo-Diaz, 1 F.3d at 70 n.6 (noting that plaintiff

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was constructively dismissed one day after the new administration

took office).

Thus, a plaintiff alleging discrimination on the basis of

political affiliation may escape summary judgment only by

pointing to evidence in the record which, if
credited, would permit a rational fact finder
to conclude that the challenged personnel
action occurred and stemmed from a politically
based discriminatory animus. Without more, a
nonmoving plaintiff-employee's unsupported and
speculative assertions regarding political
discrimination will not be enough to survive
summary judgment.

LaRou, 98 F.3d at 661 (quoting Rivera-Cotto v. Rivera, 38 F.3d 611,

614 (1st Cir. 1994)); see also Kauffman v. P.R. Tel. Co., 841 F.2d

1169, 1173 n.5 (1st Cir. 1988) (noting in the context of a

political discrimination claim that "the party against whom summary

judgment is sought must generate the specific facts necessary to

take the asserted claim out of the realm of speculative, general

allegations" (emphasis added)). With these legal requirements in

mind, we turn to appellants' claims of political discrimination.

B. Appellants' Use of the Label "Political"

On its face, appellants' claim that they were penalized

for their lack of political support for, or association with, those

in power in the BFD and Boston city government would seem to fall

within the scope of the First Amendment's protection. However, a

review of the record reveals that the associations identified by

appellants as the basis for the challenged employment decisions are

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personal, not political, in nature. While appellants consistently

apply the label "political" to the decision-making process that

resulted in the challenged adverse employment actions, they use

this adjective to refer to office politics and interpersonal

relationships rather than the conduct of government, public policy

or public controversies. In appellants' parlance, any connection

to a city official or powerful figure within the BFD is a political

connection or affiliation. For example, appellants assert that a

friendship with the mayor's wife, dating someone who works in a

city councilor's office, being the son-in-law of the mayor's right-

hand-man, and living on the same block as a BFD chief are all

"political" connections.

Notably, appellants do not allege, for example, that they

are members of a rival political party, that a divisive political

issue created a rift between appellees and themselves, or that they

were asked for campaign contributions or to engage in other

political activity. Furthermore, despite references in

interrogatory responses to political power struggles within the

BFD, none of the appellants offer evidence of power struggles

concerning the conduct of government, public policy or public

controversies.

In fact, multiple appellants acknowledged in deposition

testimony that, despite the label "political," the associations and

connections they complain of are personal in nature. Barry stated

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that "[t]here's always political cliques in any agency . . . .

It's just whoever is the administration head at that time, usually

has their little, you know, circle that they make sure that they

take care of their friends." Similarly, Kane noted that another

BFD employee was hired because she was the recent widow of a

firefighter and the department wanted to "help her out." Kane

viewed this as an example of political affiliation discrimination,

but said that she did not object to it because it was for a good

cause.

Most tellingly, McDonough explained that "our parties

aren't politically affiliated. You're affiliated through who you

know, so it doesn't mean that your political affiliation is saying

that you're in the Democratic Party or the Republican party. It's

saying that you're affiliated through who you know." Later in the

same deposition, McDonough explained how one comes to be affiliated

with the neighborhood-based factions that all of the appellants

identified within the BFD and the City of Boston:

Q: Are you saying that everyone in Hyde Park is
politically connected to Mayor Menino?
A: No.
Q: Are you saying that you have to live in Hyde Park in
order to be politically connected to the Hyde Park
Group?
A: No.
Q: So what are you saying?
A: You just have to know them and be -- whether you're
a relative or a friend or.
Q: That would apply to the South Boston Group as well?
A: Yes.

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Accordingly, McDonough's use of the term political affiliation is

properly understood to refer to friendships and familial

relationships with influential people, a usage that is common to

all of the appellants.

C. The Challenged Hiring and Promotion Decisions

Consistent with their broad understanding of "political

affiliation," appellants offer no evidence that the employment

decisions of which they complain were motivated by the relevant

sort of political animus. Conspicuously absent from the record is

any evidence of a pattern of hiring or promotion in the BFD on the

basis of association with a particular candidate or cause

concerning government, public policy or public controversies. Of

the dozens of individuals identified by the seven appellants as

having been hired or promoted on the basis of a political

affiliation, there is only one for which there is any record

evidence suggesting that her relationship with those in power had

some political element, in the relevant sense, and was not merely

personal.

Mary Ann McHugo was hired as a Principal Administrative

Assistant in 2000.11 Prior to joining the BFD, McHugo had been an

Assistant City Auditor and office manager in the Mayor's Office of

Neighborhood Services. McHugo was active in numerous civic

11
McHugo is not a party to this lawsuit and she is mentioned
by appellants only to provide contrast with their own lack of
success in securing new positions and promotions within the BFD.

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associations and met Mayor Menino several times before beginning

her work with the City. Mayor Menino knew her father and attended

his wake, and, most importantly, McHugo organized a rally for Mayor

Menino at a neighborhood church. Accordingly, McHugo can be

characterized as having both personal and political associations

with Mayor Menino and his administration. However, this is the

only political association identified by appellants among those

associations cited as evidence of a pattern of political

discrimination within the BFD. The presence of a single political

association among dozens of personal associations does not create

a material issue of fact as to whether their political neutrality

-- rather than their lack of personal connections -- was the reason

they were passed over for promotions and other employment

benefits.12

Then there is Barry's statement that defendant Moran told

her that "if you're not into politics little girl, then you're not

into a position here." Interpreted in the context of the other

evidence in the record, this statement can only refer to politics

in the sense of office politics or personal connections. Nowhere

does Barry allege that she was asked to take part in any political

12
Although appellants' motion for class certification was
denied, they do not clearly distinguish evidence in the record
relevant to each appellant. Instead, their brief on appeal
suggests that there exists a pattern and practice of political
discrimination in the BFD and that, insofar as it establishes this
pattern, all of the evidence they identify is relevant to each of
the appellants' claims.

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activity and refused, or that there was some public controversy in

which she opposed those in power or remained neutral. Barry

alleges that the person who was hired for the position she sought,

Ian McKenzie, was "politically affiliated with those with power and

influence over the BFD." However, she does not explain the nature

of that affiliation or the basis for her conclusion that it was

political. There is no record evidence that McKenzie was engaged

in any sort of political activity or had a political association

with the administration.

There is some temptation to classify Moran's alleged

statement as a "stray remark" of the sort we have identified in

previous workplace discrimination cases. A "stray remark" is a

statement that, while on its face appears to suggest bias, is not

temporally or causally connected to the challenged employment

decision and thus not probative of discriminatory animus. See

Meléndez v. Autogermana, Inc., 622 F.3d 46, 54-55 (1st Cir. 2010).

"[S]tray workplace remarks . . . normally are insufficient,

standing alone, to establish . . . the requisite discriminatory

animus." Gonzalez v. El Dia, Inc., 304 F.3d 63, 69 (1st Cir. 2002)

(internal quotation marks omitted). However, in this case, Moran's

remark is closely connected to one of the challenged employment

decisions. Thus, the issue here is not that the statement is

attenuated from the decision, but rather that, interpreted in the

context of all the record evidence before us, the statement is not

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sufficiently suggestive of animus based on political affiliation

for the Section 1983 claim to survive summary judgment. See

Goldman v. First Nat. Bank of Boston, 985 F.2d 1113, 1116 (1st Cir.

1993) ("There is no trialworthy issue unless there is enough

competent evidence to enable a finding favorable to the nonmoving

party." (citing Anderson, 477 U.S. at 249)).

III.

Taken as a whole, the record before us lacks indicia of

discrimination on the basis of political affiliation. There is no

evidence, or even any allegation, of conflict concerning the

conduct of government, public policy or public controversies.

Likewise, there is no identification of any political group, party

or faction with whom appellants associated, or refused to

associate. The "South Boston Group" and the "Hyde Park Group"

identified by appellants are at most social and familial networks

loosely organized around Boston locales; there is no indication

that they have any political significance.

We have previously explained that an employment decision

motivated by cronyism, not discrimination, would be "lawful, though

perhaps unsavory." Fernandes v. Costa Bros. Masonry, Inc., 199

F.3d 572, 587 (1st Cir. 1999), abrogated on other grounds by Desert

Palace v. Costa, 539 U.S. 90 (2003); see also Foster v. Dalton, 71

F.3d 52, 54, 56 (1st Cir. 1995) (stating in "a near-classic case of

an old boy network in operation" that "Title VII does not outlaw

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cronyism"). Other circuits have taken the same approach. The

Tenth Circuit has noted that "[t]he friendship and nepotism cases

only illustrate a broader principle: that employers are free to

employ nondiscriminatory criteria that are 'unfair' or even

reprehensible, so long as they are not discriminatory." Neal v.

Roche, 349 F.3d 1246, 1252 (10th Cir. 2003). In particularly vivid

language, the Second Circuit has observed that "back-scratching,

log-rolling, horse-trading, institutional politics, envy, nepotism,

[and] spite" are not illegal motivations for employment decisions.

Stratton v. Dep't for the Aging for City of New York, 132 F.3d 869,

880 (2d Cir. 1997) (internal quotation marks omitted).

Unfortunately for appellants, the simple fact that one is

a friend or relative of a powerful person does not create a

political association implicating First Amendment concerns. There

is an important distinction between a public official who chooses

to hire friends, relatives, neighbors or college buddies, and one

who refuses to hire those who failed to make campaign

contributions, join her political party or attend political

rallies. Although the first public official may be practicing bad

policy, she is not practicing political affiliation discrimination

that violates First Amendment rights.13 To ignore this distinction

13
Because we find that there is insufficient evidence in the
summary judgment record to create a triable issue of fact as to
whether the appellants suffered adverse employment actions on the
basis of political association, or lack thereof, there is no need
to address the second part of the Mt. Healthy analysis asking

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is to "constitutionalize the employee grievance" generally.

Garcetti, 547 U.S. at 420. We have no authority or inclination to

take that step.

Affirmed.

whether the adverse employment action would have been taken
regardless of the association in question.

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