Professional Documents
Culture Documents
No. 20-1434
GERALD ALSTON,
Plaintiff, Appellant,
v.
Defendants, Appellees,
Defendant.
Before
here) the Town, the Brookline Board of Selectmen (the Board), the
the Board (Nancy Daly, Betsy DeWitt, Ben Franco, Kenneth Goldstein,
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The defendants denied liability and — following
opinions. See Alston v. Spiegel, 988 F.3d 566, 569 n.1 (1st Cir.
I. BACKGROUND
related injury that temporarily put him out of work. On May 30,
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concluded with Pender using a racial slur ("f.....g n....r"),
Skerry) but instead agreed with Alston that Alston would speak
him that the racial slur was not intended for Alston. Rather, it
was intended for "a young black gang-banger" who had cut off Pender
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Pender's language constituted a fireable offense and informed
replied that he did not want Pender to lose his job. Later that
officers. He reminded them that the Town has zero tolerance for
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A week after that meeting, Pender was given a medal at
the White House for his heroism in connection with a 2008 fire.
only union members had access) about a "faceless coward" who was
deleted.
cocaine.
appointed Paul Ford as the new Chief. In early 2012, Ford met
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with Alston to talk about how things were between Alston and
voicemail incident but that Pender refused even to shake his hand.
worsening over the past three years, and that he had repeatedly
him out of family social events (to which he previously had been
used his new position to tell recruits that Alston's lawsuit was
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that he talked with five recruits "who were all minorities" and
non-retaliation obligations.
Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999), he approached
Pender, saying that his lawsuit was not personal and had nothing
but then admonished Alston, stating that the lawsuit was dragging
his name through the mud and causing pain to his family. Pender
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also repeatedly declared that the allegations in the complaint
were lies.
found the word "Leave" written in the dust on the door next to the
"cordial and calm manner." In his view, Alston was not a threat
Monahan and Dowling said that they did not feel threatened by
he was not the type of person who would carry out a workplace
shooting.
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Yet, Chief Ford did not have the last word: on December
Alston to stay off the Town's property due to the "going postal"
made a comment about shooting the men in the station fell on deaf
ears.
car he drove, listing his name, address, date of birth, and height.
chosen by the Town (Dr. Andrew Brown). Dr. Brown lost little time
in communicating to Chief Ford and DeBow that Alston did not pose
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because the picture Alston had submitted reflected glare that
DeBow reported that she could not conclude that the "Leave" message
expert could not identify the author. DeBow also speculated that
removed him from paid administrative leave and placed him on paid
about his mental health. Both Dr. Brown and Alston's own
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contributing his share of his municipal health insurance premiums.
Although Alston did not respond to this request, the Town continued
hold the meeting with Alston's guests present. DeBow then wrote
with Dr. Brown. Alston's counsel replied that Alston would not
attend.
the supervisor who uttered those words to you and was formally
disciplined for the incident offered his apology to you, and has
that Spiegel had told an Alston supporter that "he was a Town
Meeting member and he knew things the public didn't know [because]
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public." The Town sought input about this incident from Alston's
retaliation policy.
(designated as such after Alston had demanded that the Town replace
Dr. Brown). The next day, Alston was placed on paid leave
treatment; that Alston undergo random drug screens; and that the
level of stress. Even so, Alston and the Town failed to agree on
a return-to-work plan.
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In June of 2015, Alston wrote to the new Board chair
to play by the rules," the Town was "not agreeing to make changes
that will make the fire house safe for [him]." Alston referenced
Ford sought information from Alston about his current mental health
of concern.
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In February of 2016, Murphy requested proof of mental
scheduled drug test. On February 16, the Board met and terminated
work conditions.
leave credits.
appeared before the Board, and the Board decided to accept Ward's
DeBow regarding possible modified duty, and he also did not appear
for a drug test scheduled for the following August. At the end of
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submit any exhibits. The hearing officer found just cause for
its decision and findings (the D&F), the Commission concluded that
the Town's "own actions and inactions were the reasons that made
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of the summary judgment order that is now before us. See Alston,
II. ANALYSIS
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enforceability, which engenders de novo review. See S. Bay Bos.
Mgmt. v. Unite Here, Local 26, 587 F.3d 35, 40 (1st Cir. 2009).
A. Claim Preclusion.
the period after the state court's 2014 judgment. Alston demurs,
1649915, at *1. Four years later, the district court was tasked
the court to excise the facts alleged in the first case from the
because the claims at issue could have or should have been brought
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in the prior action." Id. at 517. The court then went beyond
what the defendants had requested, ruling that Alston could assert
suit. Id.
things) that because his state-court suit named only the Town as
court denied Alston's motion, holding that "Alston may only assert
have arisen after the date of the final judgment of the [state-
entirely clear. On the one hand, the district court did not
not have been brought in the state-court action and, thus, may
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that requested the court to bar all claims "alleg[ing] facts that
case," he could not "assert any claim arising from" incidents that
See Silva v. City of New Bedford, 660 F.3d 76, 78 (1st Cir. 2011).
See Torromeo v. Town of Fremont, 438 F.3d 113, 115-16 (1st Cir.
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relitigation of all matters that were or could have been
therefore barred. See id.; see also Heacock v. Heacock, 520 N.E.2d
one on the merits, that the parties to the prior and present suits
are the same or in privity, and that the causes of action stated
in the prior and present suits are the same. See Kobrin, 832
N.E.2d at 634.
had been entered after trial'" (quoting Boyd v. Jamaica Plain Coop.
Bank, 386 N.E.2d 775, 778 n.8 (Mass. App. Ct. 1979))); see also
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or any order of court. . . . [Such] a dismissal . . . operates as
defendants affiliated with the Town (who are named in both their
entity" with which they are affiliated (here, the Town). Id.
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assert a defense of claim preclusion in a later action in which he
incorrect.
As they read it, Goldstein stands only for the proposition that
and the subsequent federal suit named him only in his individual
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of this circuit and, as such, it is binding upon us. See United
Moneypenny Holdings, LLC, 842 F.3d 113, 125 (1st Cir. 2016).
See, e.g., Fidler v. E.M. Parker Co., 476 N.E.2d 595, 599-600
v. Kinchla, 806 N.E.2d 427, 434 (Mass. App. Ct. 2004) (same).
Martin v. Ring, 514 N.E.2d 663, 664 (Mass. 1987); Maher v. General
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Motors Corp., 346 N.E.2d 833, 835 (Mass. 1976); Home Owners Fed.
Sav. & Loan Ass'n v. Nw. Fire & Marine Ins. Co., 238 N.E.2d 55, 59
see TLT Constr. Corp. v. A. Anthony Tappe & Assocs., Inc., 716
N.E.2d 1044, 1049 (Mass. App. Ct. 1999) ("Claim preclusion has as
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This leaves the possibility of claim preclusion against
Baystate Med. Ctr., Inc., 568 N.E.2d 1181, 1185 (Mass. App. Ct.
Department's brass and the Town not only failed to take corrective
Alston from fellow firefighters. Alston says that the Town mocked
away from Alston" lest they risk being sued or fired, and by foot-
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Alston's allegations in federal court sweep much more
discredit him, that the selectmen engaged Alston in bad faith after
and/or retaliatory reasons — but that firing did not take place
Longshoremen's Ass'n, Local 799, 630 F.2d 864, 873 (1st Cir. 1980).
court suit was (in their view) Alston's "last protection against
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cut off his pay, spoke negatively about him in public, and then
that had not then happened. Put another way, the present
Piña v. Rodríguez, 407 F.3d 425, 430 (1st Cir. 2005) (finding that
claim preclusion did not apply where employee who returned to work
omitted).
scope. And because suspension without pay and firing are alleged
does not "seek[] redress for the same wrong[s]." TLT Constr.
claims against the Town and the official capacity defendants are
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not precluded by the state-court judgment. To the extent that the
136 S. Ct. 2292, 2305 (2016). Nor are we aware of any other
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These errors have significant ramifications for this
Alston alleges that the Town and the Board are liable
alleges that the Town retaliated against him for protesting this
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1. Equal Protection. Alston invokes section 1983,
rights.5 See Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir.
Municipality of San Germán, 671 F.3d 24, 32 (1st. Cir. 2012) ("Some
Bennett v. Wainwright, 548 F.3d 155, 167 (1st Cir. 2008).). "To
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put flesh upon the bare bones of this theory," a plaintiff's task
(1st Cir. 1989) (quoting Smith v. Monsanto Chem. Co., 770 F.2d
719, 723 (8th Cir. 1985)). Such relevant aspects include job
his briefing, Alston does not make the slightest effort to identify
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v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988) (quoting Paterson-
Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990
at 32.
section 1983. Buntin v. City of Boston, 857 F.3d 69, 70-71 (1st
Cir. 2017) (quoting Jett v. Dallas ISD, 491 U.S. 701, 733 (1989)).
Thus, a plaintiff "may not bring claims for damages under 42 U.S.C.
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We are bound by Buntin as the law of the circuit, and
Alston does not articulate any legal theory that would suffice to
id. at 70, 76. After all, those defendants are also state actors
and they are alleged to have acted only within the realm of their
his claims is the contention that the defendants — the Town and
the Board — retaliated against him for his exercise of his First
that were visited upon him. See Lewis v. City of Boston, 321 F.3d
207, 218 (1st Cir. 2003). If Alston can make a prima facie showing
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to this effect, the burden shifts to the defendants to demonstrate
that they would have taken the same action regardless of Alston's
Cir. 2014).
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Alston insists, under Federal Rule of Evidence 803(8) and First
e.g., Davignon v. Hodgson, 524 F.3d 91, 113 (1st Cir. 2008) ("The
App'x. 457, 462 (6th Cir. 2003).)); see also Beech Aircraft Corp.
Alston "did not mention Fed. R. Evid. 803(8) and First Circuit
Although the amici argued in their brief that the D&F should
7
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It is true that Alston did not make mention of either
justified his reliance on the D&F by citing case law for the
conduct. He pointed out that, because the D&F was itself a product
and the inferences drawn from those facts, were plainly sufficient
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There was more. In that same opposition, Alston again
argued that "after hearing all the evidence and making appropriate
they presented essentially the same arguments that they now make
that court. See Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d
748, 773 n.20 (7th Cir. 2010) (finding issue preserved because it
was raised below and noting that "litigant may cite new authority
on appeal"); United States v. Rapone, 131 F.3d 188, 196 (D.C. Cir.
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the trial court. See B & T Masonry Constr. Co. v. Pub. Serv. Mut.
Ins. Co., 382 F.3d 36, 40 (1st Cir. 2004); Teamsters, Chauffeurs,
Co., 953 F.2d 17, 21 (1st Cir. 1992). Consistent with these
judgment record.
treated the D&F. Although the court did not explicitly decide
whether the D&F was specific and competent evidence, it ruled more
exclude the D&F from the summary judgment record. We review the
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categorically constitutes an abuse of the district court's
& Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988)).
Alston did not refer to the D&F in such a way. Although this
argument makes clear that Alston did not dispute many of the
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Here, the most logical conclusion that can be drawn from
a murky record is that the district court failed to give any weight
court's only reference to the D&F was its conclusion that the D&F
did not work any issue preclusion. See Alston, 2020 WL 1649915,
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Transp., 953 F.2d at 21. For purposes of this appeal, then, any
a jury, armed with the D&F, reasonably could conclude that the
were pretextual.
Mass. Bay Transp. Auth., 342 F.3d 31, 39 (1st Cir. 2003). One
size does not fit all, and the inquiry into pretext is the kind of
183 F.3d 38, 58 (1st Cir. 1999)). Consequently, "we have been
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Dynamics Corp., 144 F.3d 151, 167 (1st Cir. 1998)); see Petitti v.
New Eng. Tel. & Tel. Co., 909 F.2d 28, 34 (1st Cir. 1990) ("This
sufficient evidence from which a rational jury could find that the
defendants' stated reason for firing Alston was only a pretext for
discrimination.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (quoting
Texas Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 256 (1981)).
such that a factfinder could "infer that the employer did not act
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for the asserted non-discriminatory reasons." Hodgens, 144 F.3d
routes.
was not fit for duty and because his non-cooperation and refusal
concluded that they were. The D&F described how the conditions
Town then used to question Alston's fitness for duty — were caused
conditions that left Alston unfit for duty is not plucked out of
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"going postal" comment was exaggerated, and Chief Skerry could not
after Mermell left the Board in 2013, she posted a public apology
that she "accepted what [she] was told as fact" and that she failed
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was approaching this matter." All of these events took place prior
to Dr. Price's 2015 report and could suggest to a jury that the
firefighter.
spanned many years, the key fact is that the sequence of events
(4th Cir. 2001) (quoting Rodgers v. W.-S. Life Ins. Co., 12 F.3d
668, 675 (7th Cir. 1993)). So, too, "[n]o other word in the
Mae, 712 F.3d 572, 580 (D.C. Cir. 2013) (Kavanaugh, J.,
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suspension of Pender was incommensurate with the repugnancy of
policy toward racism; and that, for many years after the seminal
that Alston was paranoid while Pender was remorseful. Given the
that when the defendants realized that Alston would not budge,
conclude that a jury could find that Alston's unfitness for duty
was not the true reason for his firing. Instead, a jury could
find that the true reason for the firing was as a reprisal for
claims under section 1983 and remand those claims for further
proceedings.
manifest that even though all of the individual defendants may not
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involved in at least one significant incident — investigating the
supra Part II(B)(2) and note 6, and we need not repastinate that
well-plowed ground.
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II(A), the wind has been taken out of the sails of many of the
asseverational array.11
See Lewis, 321 F.3d at 218. They first argue that Alston has not
grievances from and after that time focused on the outcome of the
461 U.S. 138, 148 n.8 (1983). It follows inexorably that once the
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Next, the Town officials contend that Alston's interest
the case, including the nature of the employment and the context
proceed to take that "hard look," viewing the facts (as the summary
See O'Connor v. Steeves, 994 F.2d 905, 917 (1st Cir. 1993).
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with senior firefighters. He then spoke directly with his
retaliation claims.
employment action under section 1983. See Lewis, 321 F.3d at 218.
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tamisage, we look to "whether the defendants' acts would have a
Aponte-Roque, 889 F.2d 1209, 1217 (1st Cir. 1989) (en banc)).
that one or more of these four defendants had the slightest effect
retaliation claims.
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constitutes an adverse employment action, they did not vote to
321 F.3d at 218. In support, they insist that the real reason for
2017). At the first step, the court must determine "whether the
v. Hynnes, 806 F.3d 627, 633 (1st Cir. 2015)). Because qualified
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Here, however, we must address the qualified immunity
generally that they did not violate Alston's First Amendment rights
prongs.
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facts falls short of working a violation of his constitutional
Town officials cite that prong and state that "the law must have
205, 391 U.S. 563, 568 (1968), and their claimed justifications
claims fail one or more components of the second prong. Given the
vacated.
motions for summary judgment, see FDIC v. Kooyomjian, 220 F.3d 10,
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16 (1st Cir. 2000), or address the issue at a subsequent stage of
(1st Cir. 1996) (noting that even though defendants had waived
D. Non-Cooperation Agreements.
black men who had asserted claims against it.12 Each of the
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if compelled to do so via subpoena or court order in a legal
on our decision in EEOC v. Astra USA, Inc., 94 F.3d 738 (1st Cir.
therefore, inapposite.
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case law. To the contrary, "public policy strongly favors
(1st Cir. 2003). This case falls within the general rule, not
III. CONCLUSION
can grow from a single, highly charged racial slur. And this suit
1983 against the Town and the Board. We also vacate the district
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proceedings consistent with this opinion. All parties shall bear
So Ordered.
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