Silva v. Worden

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 96-2165

KENNETH SILVA,

Plaintiff, Appellant,

v.

LAWRENCE D. WORDEN, INDIVIDUALLY AND AS COMMISSIONER FOR THE
CITY OF NEW BEDFORD DEPARTMENT OF PUBLIC WORKS, ROSEMARY
TIERNEY, AS MAYOR, AND THE CITY OF NEW BEDFORD,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert Collings, U.S. Magistrate Judge]

Before

Torruella, Chief Judge,

Lynch, Circuit Judge,

and Stearns,* District Judge.

Philip N. Beauregard, with whom Law Offices of Beauregard

& Burke was on brief for the appellant.

Kevin J. Finnerty, Assistant City Solicitor, with whom

Peter J. Thomas, Assistant City Solicitor was on brief for

appellees.

November 20, 1997

* Of the District of Massachusetts, sitting by
designation.

LYNCH, Circuit Judge. Kenneth Silva appeals from a
LYNCH, Circuit Judge.

directed verdict on his claims alleging violations of the

First and Fourteenth Amendments. The First Amendment claims

are that Silva was subjected to a ban on parking cars in a

city employee parking lot when the cars carry political roof

rack signs, that the ban was selectively enforced against

him, and that the termination of his city employment was in

retaliation for his support of his wife's political candidacy

for city office when she ran against a candidate whom the

mayor supported. The Fourteenth Amendment claim is that

Silva's liberty or property interests under the Due Process

Clause were violated when he was not given a name-clearing

hearing before his employment was terminated for pushing

another city employee.

At the close of plaintiff's evidence, defendants

moved for a directed verdict. The district court took the

motion under advisement and then, at the close of all

evidence, directed a verdict against the plaintiff as to the

roof rack ban, selective enforcement, and due process claims.

The court let the retaliatory firing claim against defendant

Worden go to the jury, which held in favor of the defendant.

The retaliatory firing claim against the City of New Bedford

and Mayor were dismissed. Silva appeals the directed

verdict, but not the jury finding against him on his

retaliatory firing claim. We affirm. In so doing, we hold

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that the roof rack ban was not a custom or practice so well

established as to be attributable to the City through its

policy-making officials. We further hold that Silva's

termination did not occur under circumstances entitling him

to a hearing.

I
I

Silva was hired by the City as an employee in the

Department of Public Works on May 24, 1993. Silva was a

probationary employee; as such he could not obtain full civil

service status until six months after the date of his hiring.

In June 1993, Ramone Silva, Silva's wife, announced her

intention to run for election as City Councilor for Ward 4.

Mrs. Silva was one of five candidates who sought election to

this vacant seat. The leading candidate in this campaign was

Joseph Fortes, a political ally of defendant Rosemary

Tierney, the Mayor of New Bedford. Defendant Lawrence

Worden, the DPW Commissioner, and Jose Pontes, the DPW

Superintendent and manager of the city yard, were also

supporters of Mayor Tierney.

Because she was a write-in candidate and not on the

ballot, Mrs. Silva relied heavily on signs to bring herself

to the attention of voters. Such a write-in campaign is

unusual in New Bedford, so Mrs. Silva's efforts received much

publicity. Silva vigorously supported his wife's candidacy

and worked on her behalf. Pictures of Silva and his wife

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were widely distributed in campaign literature and published

in area newspapers.

Silva worked for the DPW without incident until

September 23, 1993, when Silva went to the supply area to get

work gloves and was ignored by the supply clerk, Timothy

Lobo. Lobo, a supporter of Mayor Tierney, knew that Silva's

wife was campaigning against Fortes. Lobo refused to give

any gloves to Silva, telling him he "was not important."

When Silva later approached Lobo to discuss the incident, a

physical altercation resulted in which Silva pushed Lobo.

While no one was injured and the incident was treated by both

parties as "no big deal," Lobo reported the incident to

Pontes.

Pontes called Silva to his office and chastised

Silva for the incident. Pontes also told Silva to remove his

car from the city yard, where Silva had parked. The city

yard is a large area, primarily containing the DPW Highway

Department, where DPW employees commonly park. Silva's car

had a roof rack advertising his wife's candidacy for City

Councilor. Pontes told Silva that city policy prohibited

employees from parking cars with political roof rack signs in

the city yard. There was evidence that other DPW employees

had parked their personal cars in the city yard with

political roof rack signs advocating other candidates for

public office. Some DPW employees also had bumper stickers

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on their cars. But no other person, except Silva, has

recently been instructed to move his or her car. Silva

relocated his car and never parked in the city yard again.

Pontes, as DPW Superintendent, was second in the

DPW heirachy below Worden. Commissioner Worden, not

Superintendent Pontes, ran the agency. Pontes supervised the

day-to-day operations of the DPW. While Worden had formal

authority over the city yard, Pontes administered the yard on

a daily basis, a responsibility traditionally exercised by

the DPW Supervisor.

On September 24, 1993, Pontes gave Silva a written

warning indicating that Silva "pushed Tim Lobo" and

recommending that Silva's probation be extended. Silva

refused to sign the warning. Pontes sent a copy of the

warning to the union steward and placed a copy in Silva's

personnel file. Although Pontes instructed Silva that he

would be given a hearing before Worden, as was customary

practice for probationary employees, Silva was never

contacted by Worden for this purpose.

On October 7, 1993, Silva received a letter signed

by Worden discharging him because of the events giving rise

to the warning. Worden never spoke to Silva about the

discharge and declined to grant Silva a hearing at which

Silva might defend himself. Silva was unable to find other

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work for two years. On election day, 1993, Mrs. Silva

defeated Fortes for the Ward 4 seat.

In April 1994, Silva sued the City, Mayor Tierney,

and Worden under 42 U.S.C. 1983 and Mass. Gen. Laws ch. 12

11H,I (the state civil rights acts), claiming that the roof

rack ban violated the First Amendment, that it was

selectively enforced against him, that he was discharged in

retaliation for his support of his wife's candidacy, and that

the City's failure to provide him a name-clearing hearing

prior to his discharge violated his liberty interests under

the Due Process Clause of the Fourteenth Amendment.

At trial, Commissioner Worden testified that Pontes

had informed him there was a longstanding city "policy" set

by the DPW Superintendents prohibiting political roof rack

signs in the city yard, although Worden also testified that

he had no knowledge of any such practice until after Silva

had filed suit against the City. Pontes testified that the

policy had been first instituted by a DPW Superintendent in

the 1970's and was continued by later Superintendents,

including Pontes. Pontes and Lobo both testified that they

remembered past incidents of people being asked to move their

cars on account of political roof racks.

At the close of Silva's case, defendants moved for

a directed verdict. The court reserved ruling on the motion

and instructed the defendants to proceed with their case,

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"understanding that I'll be judging the evidence as of this

point, without considering the evidence that you introduce,

rather than keep the jury waiting." After the defendants

completed presenting their evidence, they renewed their

motion for directed verdict, which the court granted. The

court let the retaliatory firing claim go to the jury, which

found in favor of Worden, the sole remaining defendant.

II
II

In reviewing a directed verdict under Fed. R. Civ.

P. 50(a), "we take the evidence most favorable to the losing

party and ask de novo whether a reasonable jury had

inevitably to decide in favor of the victor." Abraham v.

Nagle, 116 F.3d 11, 13 (1st Cir. 1997).

We consider all evidence offered during trial,

including evidence introduced by the defendants. We do this

notwithstanding the defendants' motion for directed verdict

at the end of Silva's case and the court's statement that it

would rule, although at the close of all evidence, only on

the plaintiff's evidence. The court's reservation on the

initial motion at the end of Silva's case acted as a denial

of the motion, upon which the City had the choice of either

standing on its motion or proceeding with its evidence. The

defendants chose to proceed with their evidence, and this

court must now view all of the evidence presented. See

Gillentine v. McKeand, 426 F.3d 717, 722-23 (1st Cir. 1970);

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A & N. Club v. Great American Ins. Co., 404 F.2d 100, 103-104

(6th Cir. 1968) (citing O'Malley v. Cover, 221 F.2d 156, 158-

59 (8th Cir. 1955)). Moreover, the court held that directed

verdict was proper based both on Silva's evidence alone and

on all evidence presented during the trial, thereby

effectively making two separate rulings.

In reviewing a directed verdict, the appellate

court "may not consider the credibility of witnesses, resolve

conflicts in testimony, or evaluate the weight of the

evidence." Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir.

1987). "Nevertheless, the evidence to which the nonmovant

points must comprise more than fragmentary tendrils: a mere

scintilla of evidence is not enough to forestall a directed

verdict, especially on a claim or issue as to which the

burden of proof belongs to the objecting party." Fashion

House, Inc. v. K Mart Corp., 892 F.2d 1076, 1088 (1st Cir.

1989) (citations omitted).

We repeat the procedural context. A jury heard and

rejected the retaliatory firing claim. At issue here is the

potential liability of the City on the other First Amendment

claims and the due process claim. With this in mind, we face

the central questions in this appeal: (1) whether Pontes is a

"policymaker" under Monell v. Department of Social Services,

436 U.S. 658 (1978) and its progeny, (2) whether the City had

a "policy" or "custom" of banning political roof rack signs,

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and (3) whether Silva was deprived of a liberty interest

under the Due Process clause of the Fourteenth Amendment by

the method of his termination. We answer each question in

the negative.

A. Municipal Liability

In Monell, the Supreme Court held that a

municipality may not be held vicariously liable under 1983

for the torts of an employee solely on the basis of its

employer-employee relationship with the tortfeasor. Id. at

691. Instead, a plaintiff seeking to impose liability on a

municipality under 1983 must identify a municipal "policy"

or a "custom" that caused the plaintiff's injury. See Board

of County Comm'rs of Bryan County v. Brown, 117 S.Ct. 1382,

1388 (1997); Pembauer v. Cincinnati, 475 U.S. 469, 479-81

(1986); Monell, 436 U.S. at 694. The disputed "policy" or

"custom" must also be the cause and moving force behind the

deprivation of constitutional rights. See Bryan County

Comm'rs, 117 S.Ct. at 1388. Because neither policy nor

custom is shown here, we do not reach the causation issue.

A municipality may be held liable for acts taken

pursuant to a "policy by at least two methods:1 when the

1. Justice Souter, in his dissenting opinion in Bryan

County Comm'rs, identifies three alternatives: (1) where the

appropriate office promulgates a generally applicable
statement of policy and the subsequent act is simply an
implementation of the policy; (2) where no rule has been
announced but federal law has been violated by the act of the
policymaker itself; (3) where the policymaker has failed to

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deprivation resulted (1) "from the decisions of its duly

constituted legislative body", or (2) from the decisions "of

those officials whose acts may fairly be said to be those of

the municipality." Id. In such cases, "[m]unicipal

liability attaches only where the decisionmaker possesses

final authority to establish municipal policy with respect to

the action ordered." Pembauer, 475 U.S. at 481 (emphasis

added).

Liability may also be premised on a "custom" which

caused plaintiff's injury. In particular, a municipality

might be held liable when the plaintiff is injured by "an act

performed pursuant to a 'custom' that has not been formally

approved by an appropriate decisionmaker [when] the relevant

practice is so widespread as to have the force of law."

Bryan County Comm'rs, 117 S.Ct. at 1388. As this court

explained in Bordanaro v. McLeod, 871 F.2d 1151 (1st Cir.

1989), one method of showing custom is to demonstrate that

the custom or practice is so "wellsettled and widespread that

the policymaking officials of the municipality can be said to

have either actual or constructive knowledge of it yet did

nothing to end the practice." Id. at 1156.

act affirmatively at all, so long as the need to control the
agents of government is so obvious, and the inadequacy of the
existing practice so likely to result in violation of
existing right, that the policymaker can be said to be
"deliberatively indifferent". Bryan County Comm'rs, 117

S.Ct. at 1395. None of this trilogy can be said to be true
here.

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The evidence presented in this case does not

demonstrate the existence of either a policy or a custom

under 1983. First, Pontes, the individual who told Silva

he could not park in the city yard, is clearly not the "final

authority" in the city yard. The City Code of New Bedford

specifically provides that "[t]he commissioner of public

works under the direction of the mayor and the city council

shall . . . [h]ave the charge of the city yard . . . ." New

Bedford City Code 19-143; see also Jett v. Dallas

Independent School Dist., 491 U.S. 701, 737 ("[W]hether a

particular official has 'final policymaking authority' is a

question of state law." (quoting St. Louis v. Praprotnik, 485

U.S. 112, 123 (1988))). Thus Worden, as DPW Commissioner,

was Pontes's superior in matters concerning the city yard and

ultimately responsible for the manner in which the yard was

run. That Worden acknowledged at trial that Pontes was "the

head guy" at the yard is insufficient, without more, to

demonstrate that Worden delegated final decisionmaking

authority regarding the yard to Pontes. This is especially

true in light of Worden's assertions at trial that Pontes, as

DPW Superintendent, was "directly beneath my position," and

that "I am the department head."

We agree with the district court's assessment that

Pontes's discretion to run the yard does not constitute final

decisionmaking authority which might trigger liability under

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1983 as interpreted by Bryan County Comm'rs and Pembauer.

Pontes's testimony that an unidentified DPW Superintendent in

the 1970's first came up with the roof rack ban does not

suffice. Such a decision was not made by New Bedford's

legislative body; nor are superintendents, who are second-in-

command figures, the final authority to establish DPW policy.

Second, Silva has not met the burden of showing a

"custom" under Bordanaro. The roof rack ban was not so

"wellsettled and widespread" as to have force of law, nor is

there sufficient evidence that the City's policymaking

officials could be said to have had actual or constructive

knowledge of the practice. See Bordanaro, 871 F.2d at 1156-

57. At the close of evidence, witnesses such as Lobo and

Pontes could only remember a few instances over the last

twenty years when any roof rack policy had been enforced.

More significantly, Commissioner Worden testified that he did

not even know of the existence of a roof rack ban until

several months after Silva had been fired and, indeed, not

until after Silva had filed suit against the City. Moreover,

there is no evidence that Mayor Tierney or other high ranking

city officials, or prior policymakers, were even aware of the

practice, much less that they did nothing to end it. We do

not suggest that, and need not reach the issue of whether, a

flat ban on political roof racks on cars in city employee

parking lots is unconstitutional. Even if Silva's "custom"

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claim is recast as involving a custom of selective

enforcement of such a ban depending on which candidate's sign

is displayed, a far more potent constitutional claim, the

claim still fails for want of evidence that it involves a

custom.

Under Bordanaro, in order to show that City

officials had constructive knowledge of the practice, the

plaintiff must show that "the practices have been so

widespread or flagrant that in the proper exercise of their

official responsibilities the municipal policymakers should

have known of them." Bordanaro, 871 F.2d at 1157 (citations,

internal quotation marks, and alterations omitted). In

Bordanaro, the plaintiff had presented considerable evidence

demonstrating a comprehensive failure by the defendant City

of Everett to train and monitor the actions of its police

officers, and the court found that the evidence demonstrated

the existence of a widespread practice of which the

defendant's policymaking officials should have been aware.

See Id. at 1159-61. In contrast, the evidence in this case

at best suggests a practice, sporadic at most, of which only

some lower-level managerial employees were aware. This

evidence is insufficient to show that the City's policymaking

officials had constructive notice of the practice.

B. Due process considerations

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Silva claims he was deprived of a liberty interest

under the Due Process clause of the Fourteenth Amendment by

the termination of his employment in that the termination

stigmatized him and damaged his ability to obtain other

employment. Silva further argues that the City violated his

right to due process by refusing to grant him a hearing at

which he might clear his name.

The Supreme Court has held that termination of at-

will employment, even when accompanied by statements which

might be characterized as defamatory, is insufficient by

itself to implicate a constitutionally protected liberty or

property interest. See Bishop v. Wood, 426 U.S. 341, 348-49

n. 13 (1976); Board of Regents v. Roth, 408 U.S. 564, 572

(1972). Despite the "drastic effect of the 'stigma' which may

result from defamation by the government in a variety of

contexts, . . . reputation alone, apart from some more

tangible interests such as employment, is [n]either 'liberty'

[n]or 'property' by itself sufficient to invoke the

procedural protection of the Due Process Clause." Paul v.

Davis, 424 U.S. 693, 701 (1976). Rather, the reputational

injury must be accompanied by a change in the injured

person's status or rights under substantive state or federal

law. See Id. at 710-12.

We interpreted these requirements in Beitzell v.

Jeffrey, 643 F.2d 870 (1st Cir. 1981), stating that "the

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Fourteenth Amendment procedurally protects reputation only

where (1) government action threatens it, (2) with unusually

serious harm, (3) as evidenced by the fact that employment

(or some other right or status) is affected." Id. at 878

(footnote and citations omitted). Moreover, the municipality

terminating the employee must also be responsible for the

dissemination of defamatory charges, in a formal setting (and

not merely as the result of unauthorized "leaks"), and

thereby significantly have interfered with the employee's

ability to find future employment. Id. at 879.

Massachusetts law, under the State Constitution,

may have a slightly broader conception of the liberty

interests protected by due process in this sort of case.

Such liberty interests have been found in the absence of

formal charges where the allegedly defamatory statements are

"likely to be disseminated either to members of the public or

to prospective employers." See Smith v. Commissioner of

Mental Retardation, 28 Mass. App. Ct. 628, 636-37 (1990),

rev'd on other grounds, 409 Mass. 545 (1991). But the right

to a hearing still only attaches when the damage to

plaintiff's character is very serious. As the court stated

in Smith,

The type of damage to reputation and
character . . . must be beyond whatever
obloquy stems from the loss of a job,
demotion, adverse evaluations (e.g.,
inefficiency and incompetence), of
judgments of job performance. Similarly,

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demotions or transfers with overtones of
disciplinary action and consequent
adverse effect on reputation do not,
without more, give rise to a liberty
interest.

Id. at 635 (citations omitted); see also, Stetson v. Board of

Selectmen, 369 Mass. 755, 761 (1976) (To "constitute a

deprivation of liberty based on serious damage to one's

standing in the community, more must be shown than mere

allegations of incompetence or inefficiency at a particular

job.")

The evidence does not meet these requirements.

There is no evidence that the basis for Silva's termination,

that Silva "pushed Tim Lobo", was ever disseminated in a

formal setting, as required under federal law. Even assuming

the state standard is different, there was no dissemination

to the public or to prospective employees. The termination

letter that passed through the City personnel department

remarked only on Silva's "unsatisfactory conduct and job

performance". The employee warning written by Pontes stated

only that Silva "pushed Tim Lobo" and was not publicly

disseminated. Silva's union representative was aware of the

incident only because Silva requested the representative's

presence when Pontes issued his warning. That Worden

interviewed a witness to the incident is insufficient to

constitute dissemination. Finally, that the incident was

discussed by other employees in the city yard is not evidence

17

that the incident was published by Worden or any other city

official or was the basis for a formal charge requiring due

process protections.

In sum, we find no evidence supporting the claim

that Silva's termination was accompanied by defamatory formal

charges or statements that were disseminated by city

officials. Nor do we find evidence that Silva's subsequent

difficulty in obtaining employment resulted from the City's

discharge of Silva for unsatisfactory conduct and job

performance.

Affirmed. Costs to the defendants.

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