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USCA1 Opinion
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
3
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
4
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
5
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
6
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,
7
"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,
9
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
10
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
12
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"
13
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 __________________________
14
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 _______
15
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,
16
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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Document Info
Docket Number： 96-2165
Filed Date： 11/20/1997
Precedential Status： Precedential
Modified Date： 3/3/2016