Bruce v. Worcester Regional Transit Authority ( 2022 )


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  •           United States Court of Appeals
    For the First Circuit
    Nos. 21-1293, 21-1300
    CHRISTOPHER BRUCE,
    Plaintiff, Appellant, Cross-Appellee,
    AMALGAMATED TRANSIT UNION,
    Plaintiff,
    v.
    WORCESTER REGIONAL TRANSIT AUTHORITY; CENTRAL MASS TRANSIT
    MANAGEMENT, INC.; DAVID TRABUCCO, in his individual and official
    capacities; JONATHAN CHURCH, in his individual and official
    capacities,
    Defendants, Appellees, Cross-Appellants,
    JAMES PARKER, in his individual and official capacities,
    Defendant, Appellee.
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Timothy S. Hillman, U.S. District Judge]
    Before
    Barron, Chief Judge,
    Howard and Thompson, Circuit Judges.
    Willem Bloom, with whom Michael P. Persoon, Thomas H.
    Geoghegan, Despres, Schwartz & Geoghegan, Ltd., Harold Lichten,
    and Lichten & Liss-Riordan, P.C. were on brief, for appellant/
    cross-appellee.
    Thomas J. Conte, with whom Alexandra N. Mansfield and Mirick,
    O'Connell, DeMallie & Lougee, LLP were on brief, for appellees/
    cross-appellants.
    Christopher B. Kaczmarek and Littler Mendelson, P.C. on brief
    for appellee James Parker.
    May 18, 2022
    BARRON, Chief Judge.     Christopher Bruce is a former bus
    driver for the Worcester Regional Transit Authority ("WRTA").               He
    was employed in that capacity by Central Mass Transit Management,
    Inc. ("CMTM"), which had contracted with WRTA to provide bus
    service to the City of Worcester and surrounding towns.           While so
    employed, Bruce also served as president of the bus drivers' union,
    Amalgamated Transit Union Local 22 ("Local 22").           Bruce was fired
    on February 8, 2018, from his job as a WRTA bus driver.                 His
    termination   followed   the   public    comments   that   he   made   to    a
    television network about proposed budget cuts to the WRTA.
    In response to the termination of his employment, Bruce
    filed suit under 
    42 U.S.C. § 1983
     claiming a violation of his right
    to free speech under the First Amendment of the U.S. Constitution
    and under the Massachusetts Civil Rights Act ("MCRA") in the United
    States District Court for the District of Massachusetts.          He named
    as defendants WRTA; CMTM; James Parker, the general manager of
    CMTM; David Trabucco, the director of operations of CMTM; and
    Jonathan Church, the Executive Director of WRTA.             The District
    Court granted summary judgment to the defendants on Bruce's claims.
    We vacate and remand.
    I.
    WRTA is a Massachusetts public authority that provides
    transit service to Worcester and surrounding towns.              See Mass.
    Gen. Laws ch. 161B, §§ 2, 3.      WRTA is prohibited from "directly
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    operat[ing] any mass transportation service," id. § 25, however,
    and so it contracts with a private party to operate that service,
    see id. § 6(f).
    During the time relevant to the issues in this appeal,
    WRTA contracted with CMTM, which is a wholly owned subsidiary of
    First Transit, Inc.      WRTA's bus drivers are employees of CMTM but
    nonetheless wear uniforms with WRTA logos, and WRTA pays the
    drivers' nonwage compensation, such as pension benefits, directly
    out of its own budget.         WRTA also owns the buses that the drivers
    operate,   approves     bus    routes,   makes    certain    service-related
    decisions, and owns real property where the drivers perform some
    of their duties, including the site known as "the Hub."              Finally,
    some officers of CMTM -- including Parker and Trabucco -- often
    identify   themselves     as      officers   of    WRTA     when   they   send
    correspondence.
    At the same time, CMTM has adopted its own rules for
    employment, including for disciplining its employees, and CMTM
    enforces those rules.         CMTM also negotiates with Local 22.
    Bruce worked as a WRTA bus driver from 1976 until 1994,
    when he left to work as a full-time business agent for Local 22.
    Bruce then returned to work at WRTA, as a CMTM employee, in 2013
    when he was elected president of Local 22, which is an unpaid role.
    In   2015,    CMTM     terminated      Bruce's    employment    for
    disciplinary infractions, including improper cell phone use while
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    driving and failure to follow orders.            That termination was later
    rescinded    by    agreement.      But,    after     another   disciplinary
    infraction, Bruce was demoted in 2016 and eventually terminated
    from employment with CMTM in February 2017 after "giving back" an
    overtime shift for which he had previously volunteered.
    Following this latter termination, Bruce approached the
    Local 22 business agent, Ken Kephart, and told him that he "wanted
    to get back to work as soon as possible."           Bruce asked Kephart "to
    go in and talk to [CMTM] to see if he could make an arrangement to
    make a last chance or a way to get back."
    Bruce was apparently referring to what is known as a
    "last chance agreement."        Kephart indicated that he did not like
    last chance agreements, and so did Bruce.              But, Bruce said, "I
    need to get back to work."
    Bruce, Kephart, and Parker entered into a last chance
    agreement on March 30, 2017 (the "Last Chance Agreement").                The
    Last   Chance     Agreement   provided    that    Bruce's   termination    of
    employment would be converted to a suspension without pay for the
    period that he was not working and that Bruce would return to work
    on April 1, 2017.      It further provided that "[a]ny determination
    by" CMTM that Bruce had committed certain disciplinary infractions
    during a two-year period would "result in immediate termination of
    Mr. Bruce's employment."
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    In addition, under the agreement, Bruce and Kephart
    agreed "to waive any and all rights they may have presently or in
    the future to file or assert any claim, complaint, grievance,
    appeal to arbitration or other action in any forum of any kind in
    regard to any further disciplinary action including termination
    invoked by [CMTM] pursuant to [the Last Chance] Agreement for the
    two (2) year period."         Bruce also was given under the agreement
    "the opportunity to consult with a representative of his choosing
    prior   to   signing   this   Agreement,   including   consultation   with
    [Bruce's] Union," and the agreement stated that Bruce "has done
    so."
    Bruce faced discipline again in January 2018, when he
    was investigated for leaving the scene of an accident.            It was
    determined, however, that he did not conclusively violate a safety
    procedure or practice.
    That same month, the Governor of Massachusetts proposed
    significant budget cuts to regional transportation authorities in
    his proposed budget for the 2019 fiscal year.          CMTM and Local 22
    agreed to participate in joint efforts to oppose the budget cuts.
    On January 29, 2018, Parker included in his daily email
    to CMTM employees a message that directed CMTM drivers to "contact
    your reps and feel free to talk with passengers, family, friends
    and each other." Trabucco and Church testified that no preapproval
    was needed for employees who spoke to the media while off-duty and
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    not in uniform, but the written policy covered "[a]ll statements
    in   which   an    employee   is    representing    CMTM   or   WRTA"   without
    reference to hours of duty or uniform.
    Bruce participated in an interview regarding the budget
    cuts with the Worcester Telegram & Gazette for an article that the
    newspaper published on February 4, 2018.            Bruce was working at the
    time as a "report" driver.           He thus was responsible at the time
    both for driving WRTA buses that had been taken out of service
    from the "Hub," which is the central terminal for WRTA services,
    to CMTM's maintenance and operations facility, for filling in for
    sick drivers,      and for driving repaired          buses back from that
    facility to the "Hub" so that the buses could be placed back in
    service.
    The newspaper article discussed Local 22's efforts to
    "mobiliz[e] in the face of rumored service cuts and job losses as
    [WRTA] confronts an anticipated $1 million budget shortfall."               The
    article reported that "Bruce, [the] Local 22 president, said he
    hadn't seen an effort like this since the strike of 2004."                Bruce
    testified that he was on duty when he gave the interview.
    The   next   day,     February   5,   2018,   Bruce   received   a
    telephone call from a reporter for the local Telemundo television
    station.     The reporter requested to interview bus drivers about
    the proposed budget cuts, and Bruce told her to meet him the next
    day at 12:30 PM at the Hub, when there would be a shift change.
    - 7 -
    Bruce contacted four other drivers to arrange for them
    to speak with the reporter too.       Bruce arrived at the Hub at 11:00
    AM after bringing a bus there, and the Telemundo TV crew had
    already arrived.
    Bruce spoke with the crew, one member of whom asked to
    take a ride in a bus around the Hub to prepare the camera.           Bruce
    did not check in with his immediate supervisor to determine if he
    had any tasks to perform.        However, Bruce testified that he knew
    he did not because all of the buses at the repair garage were in
    disrepair, so his next job would have to be to take a bus back
    from the Hub.
    Bruce gave an interview to the TV crew before his shift
    ended while in uniform and driving a bus around the back lot at
    the Hub at no more than 5 miles per hour with no one else on board.
    A short clip from Bruce's interview aired that night on Telemundo.
    The clip shows Bruce briefly looking at the reporter,
    who stood behind him, and at one point taking both hands off of
    the steering wheel.        Bruce tells the interviewer that if the
    proposed budgets cuts are enacted, "the public will be the loser."
    A chyron identifies Bruce as "Presidente del Sindicato," meaning
    "President of the Union."
    The following day, February 7, Bruce received a letter
    from David Trabucco, CMTM director of operations, that informed
    him   that   he   was   being   investigated   for   making   unauthorized
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    statements to the media, for a willful or deliberate violation of
    or disregard of safety rules or common safety practice, and for a
    failure to follow work orders.    CMTM policy requires drivers to
    seek preapproval for "[a]ll statements in which an employee is
    representing CMTM or WRTA."
    Trabucco met with Bruce on February 8.   Kephart and Jo-
    Ann Clougherty, the Human Resources Manager for CMTM, attended the
    meeting as well.
    Clougherty's notes of the meeting reflect that Bruce
    said that he had "no intention of doing anything bad.    I screwed
    up . . . [g]ot phone calls from media should have had them call
    Ken [Parker]."     The notes further state that Trabucco informed
    Bruce "You know you need authorization to speak," and Bruce
    responded, "yes I know."   Trabucco informed Bruce that he would be
    taken out of service pending the investigation.
    Bruce and Kephart subsequently met with Parker.    Bruce
    testified that he said the same thing to Parker that he had said
    to Trabucco.
    Parker wrote a letter to Bruce on February 13 informing
    him that he had been terminated following "the investigation of
    the . . . infractions you were charged with."
    Bruce and Kephart subsequently went to see Parker the
    same day to ask him to reconsider the termination.    Parker, in a
    memorandum for record written after that conversation, wrote that
    - 9 -
    he "went through each of the three charges which led to my
    decision," and that "Chris acknowledged that he committed the
    offenses."    Parker further wrote that he "explained that [he] felt
    the coordination of an unauthorized media interview combined with
    the completely unsafe manner in which it was conducted while he
    was on the clock and should have been driving the bus back to the
    garage led to my decision.        I felt he was doing this to thumb his
    nose at the company and if I let it pass it would establish a
    dangerous    precedent."     Parker      testified      that   the   memorandum
    accurately reflected the conversation.
    Bruce and Amalgamated Transit Union filed suit against
    WRTA, CMTM, Trabucco, Church, and Parker on March 26, 2018.                  After
    discovery, both plaintiffs and defendants filed cross-motions for
    summary judgment. The District Court denied the plaintiffs' motion
    and granted the defendants' motion.            See Bruce v. Worcester Reg'l
    Transit Auth., 
    527 F. Supp. 3d 67
    , 81 (D. Mass. 2021).
    Bruce   timely   appealed;      he    was   not    joined   by    the
    Amalgamated Transit Union.        All of the defendants except Parker
    cross-appealed based on the District Court's conclusion that the
    waiver that Bruce had signed in the Last Chance Agreement did not
    bar his claims.     Although the District Court had merely "assume[d]
    . . . that CMTM was acting under color of state law when it
    terminated"   Bruce,   
    id. at 78
    ,   the     appealing     defendants    also
    - 10 -
    appealed "to the extent that the [District] Court found that CMTM
    was so entwined with WRTA that it constituted a state actor."
    II.
    We begin with Bruce's challenge to the District Court's
    grant of summary judgment to the defendants on his § 1983 claim.
    Bruce alleges in that claim that he was fired based on his
    interview with Telemundo in violation of the First Amendment.
    "To   determine   whether     an    adverse    employment     action
    against a public employee violated an individual's First Amendment
    free speech rights, we employ a three-part inquiry."                Gilbert v.
    City of Chicopee, 
    915 F.3d 74
    , 82 (1st Cir. 2019); see also
    Curran v. Cousins, 
    509 F.3d 36
    , 45 (1st Cir. 2007) (aligning this
    circuit's three-part test with Garcetti v. Ceballos, 
    547 U.S. 410
    (2006)).   The first part concerns whether the public employee
    "spoke as a citizen on a matter of public concern."                Gilbert, 915
    F.3d at 82 (quoting Curran, 
    509 F.3d at 45
    ).                The second part
    concerns whether, if the employee did so, "the relevant government
    entity had an adequate justification for treating the employee
    differently from any other member of the general public."               Curran,
    
    509 F.3d at 45
     (quoting Garcetti, 
    547 U.S. at 418
    ).                   The third
    part concerns whether, if that government entity did not have an
    adequate   justification,       "the   protected         expression     was   a
    substantial   or   motivating    factor       in   the   adverse    employment
    decision." 
    Id.
     Even then, "the employer must have the opportunity
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    to prove that it would have made the same decision regardless of
    the protected expression." 
    Id.
     (citing Mt. Healthy City Sch. Dist.
    Bd. of Educ. v. Doyle, 
    429 U.S. 274
    , 287 (1977)); see also McCue
    v. Bradstreet, 
    807 F.3d 334
    , 338-39 (1st Cir. 2015).
    Bruce contends that the defendants are not entitled to
    summary judgment on this claim because of what he contends the
    record   shows   in    relation   to        each   part   of   the   tripartite
    constitutional inquiry.      We review the District Court's decision
    de novo to determine if a "reasonable fact-finder, examining the
    evidence and drawing all reasonable inferences helpful to [Bruce]
    could resolve the dispute in [Bruce's] favor."             Hill v. Walsh, 
    884 F.3d 16
    , 21 (1st Cir. 2018) (citations omitted).
    A.
    There is no dispute that the budget cuts that Bruce
    discussed in his interview with Telemundo constituted a "matter of
    public concern."      Curran, 
    509 F.3d at 45
    .        The parties do dispute,
    however, whether Bruce "spoke as a citizen," 
    id.,
     or, instead,
    only "pursuant to [his] official duties," Decotiis v. Whittemore,
    
    635 F.3d 22
    , 30 (1st Cir. 2011) (quoting Garcetti, 
    547 U.S. at 421
    ).    Bruce contends that, given what a reasonable juror could
    find the record shows about the circumstances in which he was
    speaking during the interview, he was speaking as a citizen.
    Insofar as there is no material dispute of fact with respect to
    the circumstances in which Bruce gave the interview, the question
    - 12 -
    of whether Bruce is right on that score is one of law.                Curran,
    
    509 F.3d at
    45 (citing Connick v. Myers, 
    461 U.S. 138
    , 148 n.7
    (1983)).
    To assess Bruce's contention, it helps to start by
    reviewing what the Supreme Court of the United States held in
    Garcetti, as that case, too, concerned a public employee's First
    Amendment challenge to a termination of his employer that he
    contended was based on speech that he made at work.                  There, a
    deputy district attorney alleged that his supervisors violated the
    First Amendment when they retaliated against him for speech that
    he made to them concerning what he saw as deficiencies in a pending
    prosecution by his office.      
    547 U.S. at 413-15
    .      The Supreme Court
    held that the District Court had correctly granted summary judgment
    to the defendants, because the prosecutor's "expressions were made
    pursuant to his duties as a calendar deputy," given that he "spoke
    as   a   prosecutor   fulfilling    a   responsibility       to   advise   his
    supervisor about how best to proceed with a pending case."                 
    Id. at 421
    .
    The Supreme Court stated the general rule this way: "when
    public    employees   make   statements     pursuant    to   their   official
    duties, the employees are not speaking as citizens for First
    Amendment purposes, and the Constitution does not insulate their
    communications from employer discipline."         
    Id.
        The Supreme Court
    made clear, however, that it was "not dispositive" that the
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    prosecutor had "expressed his views inside the office, rather than
    publicly," because "[e]mployees in some cases may receive First
    Amendment protection for expressions made at work."         
    Id.
     at 420
    (citing Givhan v. W. Line Consol. Sch. Dist., 
    439 U.S. 410
    , 414
    (1979)).
    Thus,   when   determining   whether   an   employee   spoke
    "pursuant to their official duties," we must focus on whether the
    speech was "part of what" the employee was "employed to do" rather
    than merely whether the employee engaged in the speech "at work."
    
    Id. at 420, 421
    .    As the Court has put it following Garcetti:    "The
    critical question under Garcetti is whether the speech at issue is
    itself ordinarily within the scope of an employee's duties, not
    whether it merely concerns those duties."     See Lane v. Franks, 
    573 U.S. 228
    , 240 (2014).
    Here, there is no question that Bruce spoke to Telemundo
    while he was "at work."     But, Bruce contends, the District Court
    erred in ruling that he spoke to Telemundo during the interview
    pursuant to his official duties and not "as a citizen."       And that
    is because, he argues, he was speaking to Telemundo as an official
    of Local 22 about a matter that merely concerned his duties in a
    general sense.
    Bruce urges that we hold that a public employee is not
    speaking pursuant to his official duties -- and is instead speaking
    in his capacity as a citizen -- whenever the employee is speaking,
    - 14 -
    even at work, as an official of the employee's union.          Bruce argues
    that such a rule is supported by Supreme Court precedent that
    "draw[s] a clear distinction between employer speech and union
    speech."    See Janus v. Am. Fed. Of St., Cty., and Mun. Emps., 
    138 S. Ct. 2448
    , 2474 (2018) (noting that unions "speak[] for the
    employees, not the employer").        And, Bruce further contends that
    some of our sister circuits have adopted this rule.             See Boulton
    v. Swanson, 
    795 F.3d 526
    , 534 (6th Cir. 2015) ("We . . . hold that
    speech in connection with union activities is speech 'as a citizen'
    for purposes of the First Amendment."); Ellins v. City of Sierra
    Madre, 
    710 F.3d 1049
    , 1059-60 (9th Cir. 2013) (same); Fuerst v.
    Clarke, 
    454 F.3d 770
    , 774 (7th Cir. 2006) ("Because [an employee's]
    comments that precipitated the adverse action taken against him
    were made in his capacity as a union representative, rather than
    in   the   course   of   his   employment   as   a   deputy   sheriff   . . .
    [Garcetti] is inapposite.").
    We need not go that far.             Under our post-Garcetti
    precedent in this area, it is evident that, given what a reasonable
    juror could find about the circumstances in which Bruce was
    speaking to Telemundo, Bruce was speaking in his capacity "as a
    citizen" during the interview.
    In applying Garcetti, we have identified a number of
    nonexclusive factors that indicate that a public employee is
    speaking "as a citizen," rather than "pursuant to the [employee's]
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    official    duties."     They    include      "whether     the   employee    was
    commissioned or paid to make the speech in question" by the
    employer; whether "the subject matter of the speech" indicates the
    capacity in which the employee was speaking; "whether the speech
    was made up the chain of command" of the employer or independent
    of it; "whether the employee spoke at her place of employment" or
    elsewhere;   "whether    the    speech    gave   objective       observers   the
    impression that the employee represented the employer when she
    spoke   (lending    it   'official       significance')";        "whether    the
    employee's speech derived from special knowledge obtained during
    the course of her employment"; and "whether there is a so-called
    citizen analogue to the speech."         Gilbert, 915 F.3d at 82 (quoting
    Decotiis, 
    635 F.3d at 32
    ).
    Bruce   contends    that,    in   light   of    what   the   record
    supportably shows with respect to each of those factors it was
    error for the District Court to conclude that, as a matter of law,
    he was not speaking "as a citizen" during the Telemundo interview.
    We agree.
    A reasonable juror could find on this record -- as the
    parties appear to agree -- that Bruce was not paid by CMTM to speak
    with Telemundo, and that Telemundo identified Bruce to its viewers
    as "Presidente del Sindicato"            (or, "President of the Union").
    Such a juror also could find on this record that Bruce's speech
    did not derive from any special knowledge that he had gained as a
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    public employee but was based instead on the common-sense premise
    (or, at most, a premise that he could have learned as a union
    official) that cuts to WRTA's budget would impact WRTA service.
    Moreover, a reasonable juror could find on this record
    that Bruce's statements to Telemundo were essentially the same as
    ones that a typical WRTA rider could have made, which would support
    the determination that there is a citizen analogue to the speech
    at issue.   Nor, obviously, were Bruce's comments made up the chain
    of command.   In fact, that a reasonable juror could find that Bruce
    spoke -- as the defendants' own position accepts -- to Telemundo
    contrary to his employer's directives indicates that his speech
    fell outside his professional duties.     See Dahlia v. Rodriguez,
    
    735 F.3d 1060
    , 1075 (9th Cir. 2013) (en banc).
    The defendants stress in response that the record shows
    that Bruce was interviewed in uniform, while driving a bus on WRTA
    property in the middle of his workday.      But, the same could be
    said of any speech by Bruce while he was in uniform at work.
    Garcetti is clear in holding that there is a distinction between
    speech made "pursuant to [an employee's] official duties" and
    speech made "at work."    
    547 U.S. at 420, 421
    ; see also 
    id. at 420
    ("That Ceballos expressed his views inside his office, rather than
    publicly, is not dispositive.").
    The defendants do argue that "[w]hile Bruce's 'official
    duties' may not have included making public addresses, it is
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    undisputed   that    CMTM    authorized   its    employees    to    speak   out
    regarding the WRTA budget cuts, including by handing out flyers."
    And it is true that the fact that the employer commissions or pays
    for the speech at issue points in favor of the determination that
    the speech was not made "as a citizen."                 It does not follow,
    however, that the employer's failure to prohibit that speech
    necessarily means that the speech is made "pursuant to official
    duties." Cf. Decotiis, 
    635 F.3d at 31
     ("In identifying Plaintiff's
    official responsibilities,         'the proper inquiry is          "practical"
    rather than formal, focusing on "the duties an employee actually
    is expected to perform,"' and not merely those formally listed in
    the   employee's    job   description."      (quoting    Mercado-Berrios     v.
    Cancel-Alegría, 
    611 F.3d 18
    , 26 (1st Cir. 2010))).
    The defendants also point to a statement by Bruce in his
    motion for summary judgment below that suggests that Telemundo
    sought out drivers to interview generally, rather than union
    representatives.      There is no dispute, though, that Telemundo
    identified Bruce as the union president, rather than as a driver,
    in the clip of the interview shown to the public.            Moreover, given
    the strength of the factors that point towards a conclusion that
    Bruce was speaking in a private capacity, the fact that Telemundo
    may have been seeking comments from WRTA drivers in their role as
    drivers does not suffice to show that, as a matter of law on this
    record,   Bruce    himself   was    speaking    to   Telemundo     during   the
    - 18 -
    interview in that capacity rather than in his capacity as a union
    president.
    B.
    We come, then, to the second part of the three-part
    inquiry.     Here, the question is whether, even if Bruce spoke "as
    a citizen" on a "matter of public concern" during the Telemundo
    interview,    the      defendants     "had       an    adequate   justification     for
    treating [him] differently from any other member of the general
    public" by terminating him for his protected speech, Curran, 
    509 F.3d at 45
     (quoting Garcetti, 
    547 U.S. at 418
    ).
    The defendants urge us to affirm the District Court's
    grant of summary judgment to them on Bruce's § 1983 claim on this
    ground, notwithstanding that the District Court made no finding
    regarding it.         We decline to do so.
    This portion of the inquiry requires that we "attempt[]
    to   'balance    the     value   of   an     employee's       speech    --   both   the
    employee's      own    interests      and    the       public's   interest    in    the
    information the employee seeks to impart -- against the employer's
    legitimate      government       interest             in   preventing    unnecessary
    disruptions and inefficiencies in carrying out its public service
    mission.'"      Decotiis, 
    635 F.3d at 35
     (internal quotation marks
    omitted) (quoting Guilloty Perez v. Pierluisi, 
    339 F.3d 43
    , 52
    (1st Cir. 2003)); see also Connick, 
    461 U.S. at 140
    ; Pickering v.
    Bd. of Educ. of Twp. High Sch. Dist. 205, 
    391 U.S. 563
    , 568 (1968).
    - 19 -
    We consider "(1) 'the time, place, and manner of the employee's
    speech,' and (2) 'the employer's motivation in making the adverse
    employment decision.'"     Decotiis, 
    635 F.3d at 35
     (quoting Davignon
    v. Hodgson, 
    524 F.3d 91
    , 104 (1st Cir. 2008)).      If, in considering
    these factors, we determine that the employee "face[d] only those
    speech restrictions that are necessary for [his] employer[] to
    operate efficiently and effectively," Garcetti, 
    547 U.S. at 419
    ,
    then   the   defendants'   restrictions   on   speech   were   adequately
    justified and we must affirm the District Court's grant of summary
    judgment to the defendants.     The resolution of this question is,
    like the question we have just discussed, a matter of law for the
    court to decide.    Curran, 
    509 F.3d at 45
    .
    The determination of whether the firing of a public
    employee for violating a restriction on speech that the employer
    imposed is justified necessarily hinges on the nature of that
    restriction.    Bruce contends that the record suffices to allow a
    reasonable juror to find that the speech restriction at issue was
    the one in CMTM's Employee Discipline Policy, which, as we have
    mentioned, provides that "[a]ll statements in which an employee is
    representing CMTM or WRTA must be pre-approved by the General
    Manager."     The defendants contend that even if he was terminated
    because of that policy, that policy was adequately justified by
    the defendants' efficiency and safety interests.
    - 20 -
    That   policy,   by   its     plain    language,      covers       even
    statements made while an employee is off duty and without regard
    to their content.      And while Parker testified that it did not reach
    that   far,    he    was   unable   to    point     to   anything       that    would
    substantiate his claim that the policy was not as broad as its
    plain language would suggest, creating at least a genuine issue of
    fact as to the reach of the policy.          Thus, insofar as a juror could
    find that the policy is as broad as its terms indicate that it is,
    as we conclude such a juror could, we do not see how that policy
    is "necessary" for WRTA and CMTM "to operate efficiently and
    effectively," Garcetti, 
    547 U.S. at 419
    .
    Notably, WRTA and CMTM do not offer any justification
    for    requiring     pre-authorization      in    the    expansive       array    of
    scenarios where an employee might be said to be "representing" one
    of those organizations, particularly given that they applied the
    policy to an interview in which Bruce was identified as the union
    president.      True, Parker does argue that "[a]n employer need not
    show an actual adverse effect in order to terminate an employee,"
    Curran, 
    509 F.3d at 49
    , but instead may "consider . . . speech's
    potential to disrupt," Davignon, 
    524 F.3d at 105
     (emphasis added).
    But, in Davignon, we did not allow a public employer to use the
    potential      for   speech    to   cause    disruption      as     a    post    hoc
    rationalization for terminating an employee; we instead looked to
    - 21 -
    the record to determine whether the potential for disruption was
    actually the reason for the firing.            
    Id.
    Here, the record would allow a reasonable juror to
    conclude that Bruce was terminated simply because he violated the
    broad preauthorization policy and not because of any specific
    conduct    in   which    he   engaged        for     which    a    more    tailored
    preauthorization policy might be warranted.                  And, that being so,
    his termination simply for violating that broad preauthorization
    policy cannot plausibly be justified as necessary to protect the
    defendants' legitimate safety and efficiency interests.
    C.
    That brings us to the third part of the three-part
    inquiry,     which   concerns     whether          the    public      employee   can
    "demonstrate 'that the protected expression was a substantial or
    motivating      factor   in     the     adverse          employment     decision.'"
    Delaney v. Town of Abington, 
    890 F.3d 1
    , 6 (1st Cir. 2018) (quoting
    Curran, 
    509 F.3d at 45
    ).         In holding that Bruce failed to make
    that showing, the District Court pointed -- and the defendants now
    point -- to the fact that the defendants consistently stated that
    Bruce committed three infractions, any of which subjected him to
    termination under the Last Chance Agreement.                   See Bruce, 527 F.
    Supp. 3d at 80.      The defendants now renew their argument that
    because Bruce committed two terminable violations that did "not
    involv[e] speech of any kind," they are "not liable because Bruce
    - 22 -
    would have been terminated for either of the other two (2) listed
    infractions, which did not involve speech."       Parker advances an
    argument along similar lines.
    As Bruce explains, however, the memorandum from Parker
    contemporaneously recording the conversation that he had with
    Bruce and Kephart states that Bruce was fired because Parker "felt
    the coordination of an unauthorized media interview combined with
    the completely unsafe manner in which it was conducted while he
    was on the clock and should have been driving the bus back to the
    garage"   (emphasis   added),   demonstrates   that   "the   non-speech
    actions alone were not sufficient to justify termination" such
    that a reasonable juror could conclude that the speech element was
    the motivating factor for Parker's decision.     Bruce also points to
    Parker's comment to Bruce that Parker felt Bruce was "thumb[ing]
    his nose at" CMTM and that Parker could not "let it pass," arguing
    that these statements demonstrate that Bruce's speech was central
    to his termination.
    Thus, given this evidence, we agree with Bruce that a
    reasonable juror could read Parker's memorandum to say that the
    mere fact that Bruce gave an unauthorized interview was the
    substantial factor behind his termination, or that the three
    disciplinary violations are so intertwined that the resulting
    termination cannot be understood except as a reaction to Bruce's
    interview.   We also agree with Bruce that a reasonable juror could
    - 23 -
    infer from the comment that Bruce was "thumb[ing] his nose" that
    Parker perceived a personal affront from Bruce's comments that
    must be based on Bruce's failure to seek preauthorization for his
    interview, as that reasonable juror might think it odd for the
    other violations to give rise to such a feeling.                Moreover, the
    record does not contain any evidence that would compel a reasonable
    juror to conclude that Bruce would have been terminated had he
    engaged   in    the   same   conduct   but   not   given   an    unauthorized
    interview.     The defendants' arguments to the contrary identify, at
    best, evidence that Bruce could have been terminated.
    D.
    Parker asserts, as a separate ground for affirming the
    District Court's ruling, what is known as the Mt. Healthy defense
    -- that the defendants "would have terminated Bruce's employment
    regardless of his comments to Telemundo."             To the extent this
    defense is separate from the "substantial or motivating factor"
    inquiry, see Decotiis, 
    635 F.3d at 29-30
     (directing us to look to
    Mt. Healthy only if the aforementioned "three parts of the inquiry
    are resolved in favor of the plaintiff"), our reasoning as to that
    inquiry is equally on point.
    As we have explained, although a reasonable juror might
    be compelled to conclude based on the record evidence that Bruce
    could have been fired pursuant to the terms of the Last Chance
    Agreement based on his conduct, such a juror would not be compelled
    - 24 -
    to conclude on this record that Bruce would have been fired.                      So,
    we cannot affirm the grant of summary judgment on this ground
    either.
    III.
    We next turn to Bruce's MCRA claim.                The District Court
    granted summary judgment to the defendants on this claim "for the
    same reasons" that it gave in granting them summary judgment on
    his § 1983 claim.           Bruce, 527 F. Supp. 3d at 81.               Thus, for the
    reasons we have discussed, we reverse the grant of summary judgment
    on this claim, too.
    The defendants briefly argue, however, that we should
    affirm notwithstanding our treatment of the § 1983 claim because,
    before the District Court, the defendants advanced arguments that
    Bruce   had    not    shown    the   requisite      threats,      intimidation,    or
    coercion to succeed on a MCRA claim, see Mass. Gen. Laws ch. 12,
    §§ 11H(a)(1),        11I,   and   Bruce     did    not   rebut    these    arguments.
    Because the District Court did not address this contention below,
    we leave it to be addressed by the District Court in the first
    instance on remand.
    IV.
    There    remains       to     address      only     the     defendants'
    contentions -- which they style as a cross appeal -- that we may
    affirm the District Court's grant of summary judgment on the
    alternative grounds that (1) the Last Chance Agreement barred
    - 25 -
    Bruce's claims and (2) Bruce has failed to meet his burden to show
    "state action."    See Alberty-Vélez v. Corporación de P.R. Para La
    Difusion Publica, 
    361 F.3d 1
    , 5 n.4 (1st Cir. 2004) (noting that
    although "a party may not appeal from a favorable judgment," even
    when   the   District   Court   has   rejected   some   of   that   party's
    arguments, we still may "treat [the] cross-appeal as a request
    that we affirm the summary judgment ruling on" the bases the
    District Court rejected).       As we will explain, we conclude that
    the ultimate resolution of whether each of these grounds has merit
    is also best addressed by the District Court in the first instance
    on remand.    See Yan v. ReWalk Robotics Ltd., 
    973 F.3d 22
    , 39 (1st
    Cir. 2020) (noting our "discretion" to choose this course).
    A.
    In the Last Chance Agreement, Bruce and Local 22 agreed
    "to waive any and all rights they may have presently or in the
    future to file or assert any claim, complaint, grievance, appeal
    to arbitration or other action in any forum of any kind in regard
    to any further disciplinary action including termination invoked
    by [CMTM] pursuant to [the Last Chance] Agreement for the two (2)
    year period."     "Waiver and release are affirmative defenses on
    which the employer bears the burden."        Rivera-Flores v. Bristol-
    Myers Squibb Caribbean, 
    112 F.3d 9
    , 12 (1st Cir. 1997) (citing
    Fed. R. Civ. P. 8(c)).     We review the District Court's conclusion
    - 26 -
    that the defendants did not meet that burden de novo.               Hill, 884
    F.3d at 21.
    With respect to Bruce's § 1983 claim, the District Court
    applied our precedent addressing the waiver of federal statutory
    claims, which requires that such a waiver must have been made
    knowingly and voluntarily.       See Rivera-Flores, 
    112 F.3d at 11, 12
    .
    Under   that   precedent,   we    have     applied   a   totality    of   the
    circumstances test that includes, but is not limited to, "a non-
    exclusive set of six factors," namely "(1) plaintiff's education
    and business experience; (2) the respective roles of the employer
    and employee in determining the provisions of the waiver; (3) the
    clarity of the agreement; (4) the time plaintiff had to study the
    agreement; (5) whether plaintiff had independent advice, such as
    that of counsel;    and (6) the consideration for the waiver."
    Melanson v. Browning-Ferris Indus., Inc., 
    281 F.3d 272
    , 276 & n.4
    (1st Cir. 2002) (citing Smart v. Gillette Co. Long-Term Disability
    Plan, 
    70 F.3d 173
    , 181 n.3 (1st Cir. 1995)).
    The District Court ruled based on these factors that
    "[t]he only factor in Bruce's favor is that CMTM drafted the waiver
    provision," but the District Court nonetheless concluded "that the
    fact that the waiver provision does not expressly specify that the
    waiver includes constitutional and/or statutory claims at least
    brings its scope into question."         Bruce, 527 F. Supp. 3d at 78.
    The District Court thus found that there was "a genuine issue of
    - 27 -
    material fact as to whether Bruce knowingly and voluntarily waived
    his right [to] assert claims against the Defendants for violation
    of his right to free speech under federal . . . law."   Id.
    We have never held, however, that a "magic words" test
    is applicable to any type of claim, such that a waiver must
    expressly name the precise claims that it reaches to be knowing
    and voluntary.   And so, to the extent that the District Court
    relied on the mere failure to mention such claims as the basis for
    ruling in Bruce's favor with respect to the waiver question, we
    agree with the defendants that the District Court erred.
    Bruce argues, however, that, even if that is so, the
    Last Chance Agreement does not bar his § 1983 claim because he is
    seeking in it to vindicate a "fundamental constitutional right" --
    specifically a First Amendment right.    He thus argues both that
    there must be "clear and convincing evidence" that he knowingly
    and voluntarily waived his First Amendment-based claim and that,
    under that heightened evidentiary standard, it was impossible for
    him knowingly and voluntarily to waive his "unknown First Amendment
    claims" that had not yet arisen.    See Janus, 
    138 S. Ct. at 2486
    (establishing that "to be effective," a waiver of First Amendment
    rights "must be freely given and shown by 'clear and compelling'
    evidence" (quoting Curtis Publishing Co. v. Butts, 
    388 U.S. 130
    ,
    145 (1967) (plurality opinion))); Johnson v. Zerbst, 
    304 U.S. 458
    ,
    464 (1938) (directing us to "'indulge every reasonable presumption
    - 28 -
    against waiver' of fundamental constitutional rights" (quoting
    Aetna Ins. Co. v. Kennedy, 
    301 U.S. 389
    , 393 (1937))).
    Bruce made the same argument below, but the District
    Court did not address it and instead ruled in his favor under our
    typical waiver standard.          We thus leave it for the District Court
    to address in the first instance on remand.             We note in this regard
    that the defendants do not identify any case -- nor are we aware
    of any -- in which we have permitted a waiver of a First Amendment
    claim brought under § 1983, and that the one precedent that the
    defendants do invoke is a district court opinion that, although it
    asserts that "[i]t is settled law in the First Circuit that
    agreements containing waivers of an employee's right to . . .
    pursue constitutional claims as consideration for resolving an
    employment      dispute   . . .    are   valid    and   enforceable   where   a
    defendant/employer establishes that the waiver was made knowingly
    and voluntarily,"         Higgins v. Town of Concord, 
    322 F. Supp. 3d 218
    , 225 (D. Mass. 2018), cites only to cases that do not involve
    constitutionally-based claims such as the one that Bruce brings,
    see 
    id.
    As for the MCRA claim, the question of when and how an
    employee may waive such claims in an employment agreement is a
    matter of state law, given that the rights MCRA protects are
    grounded   in    state    law   and   contract    interpretation   is   itself
    typically a matter of state law.               See Ruiz-Sánchez v. Goodyear
    - 29 -
    Tire   &    Rubber   Co.,   
    717 F.3d 249
    ,   252   (1st   Cir.   2013);
    Livingstone v. North Belle Vernon Borough, 
    91 F.3d 515
    , 539 (3d
    Cir. 1996).      The District Court relied, however, only on our
    precedents concerning the waiver of federal statutory claims.           See
    Bruce, 527 F. Supp. 3d at 77-78.         Thus, even if, as the defendants
    contend, the District Court erred in applying that precedent to
    find that the Last Chance Agreement did not constitute a knowing
    and intelligent waiver of that claim, it erred by not applying the
    state law requirements for effecting the waiver of such a claim.
    Finding no definitive guidance from the SJC on the question, and
    the defendants having failed to identify any on-point state court
    precedent, here, too, we think the proper course is to permit the
    District Court to address the parties' arguments in the first
    instance.
    B.
    As a last ground for affirming the District Court, the
    defendants contend that CMTM and its officers and employees are
    not state actors, while the only state actor among the defendants
    -- WRTA -- had no role in Bruce's termination.          They thus contend
    that Bruce's First Amendment-based § 1983 claim necessarily fails
    and that in consequence, so, too, necessarily, does his MCRA claim.
    But, here, too, we think the better course is for us to permit the
    District Court to address that contention on remand, given that it
    merely "assume[d] for purposes of [its] discussion" of Bruce's
    - 30 -
    termination that Bruce's "termination can be fairly attributable
    to state action" and so has not addressed the state-action issue.
    Bruce, 527 F. Supp. 3d at 78.1
    V.
    We vacate the District Court's grant of summary judgment
    to the defendants and remand for further proceedings consistent
    with this opinion.   The parties shall bear their own costs.
    1 None of the defendants raised any immunities as a
    defense to us or in their motions for summary judgment, and so we
    do not address them.
    - 31 -