United States Court of Appeals For the First Circuit
No. 20-1434
GERALD ALSTON,
Plaintiff, Appellant,
v.
STANLEY SPIEGEL,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge] [Hon. M. Page Kelley, U.S. Magistrate Judge]
Before
Lynch and Selya, Circuit Judges, and Laplante,* District Judge.
Brooks A. Ames, with whom Brookline Justice League was on brief, for appellant. Naomi R. Shatz, with whom Martin R. Rosenthal, David Duncan, and Zalkind Duncan & Bernstein LLP were on brief, for appellee.
February 19, 2021
* Of the District of New Hampshire, sitting by designation. SELYA, Circuit Judge. Plaintiff-appellant Gerald Alston
filed this civil rights action alleging violations of 42 U.S.C.
§§ 1981, 1983, and 1985. The operative pleading — his second
amended complaint (the SAC) — named as defendants the Town of
Brookline, Massachusetts (the Town), the Brookline Board of
Selectmen (the Board), certain members of the Board, the Town's
counsel and human resources director, Local 950, International
Association of Firefighters (the Union), and Stanley Spiegel (a
Town Meeting member). Alston, a former Town firefighter who is
black, alleges that the defendants discriminated against him on
the basis of race; retaliated against him for exercising his First
Amendment rights; and conspired to enforce the Town's policy of
opposing racial equality, favoring white residents and employees,
and retaliating against those who oppose the Town's views.
After Alston had filed his second amended complaint, the
district court dismissed with prejudice his claims against
Spiegel. See Alston v. Town of Brookline, No. 15-13987, 2017 WL
3387132, at *4-6 (D. Mass. Aug. 7, 2017). In serial orders, the
district court later granted summary judgment in favor of the
remaining defendants. See Alston v. Town of Brookline, No. 15-
13987, 2020 WL 1649915 (D. Mass. Apr. 2, 2020) (addressing motions
by the Town, the Board, and the remaining individual defendants);
Alston v. Town of Brookline, No. 15-13987, 2020 WL 1615408 (D.
Mass. Apr. 2, 2020) (addressing the Union's motion).
- 2 - Alston appealed from all of these adverse orders. For
ease in exposition, we have carved his appeal into discrete
segments. In this opinion, we address Alston's appeal only insofar
as it relates to the district court's dismissal of his claims
against Spiegel.1 We conclude that the allegations against Spiegel
fail to state a claim upon which relief can be granted and,
therefore, affirm the order of dismissal. We retain appellate
jurisdiction over all other aspects of his appeal.
I. BACKGROUND
We briefly rehearse the relevant allegations of the SAC,
accepting as true the well-pleaded facts. See Santiago v. Puerto
Rico, 655 F.3d 61, 72 (1st Cir. 2011). We then limn the travel of
the case.
Alston is a black firefighter who began working for the
Brookline Fire Department (the Department) in 2002. On May 30,
2010, Paul Pender, a lieutenant in the Department, left a voicemail
on Alston's telephone in which he used a racial slur when referring
to Alston. Alston reported the lieutenant's comment to the
Department's chief operating officer, but the Department took no
corrective action. The Department did, however, communicate to
Pender that Alston had reported the incident. Pender responded by
1 Because Alston's claims against the other appellees raise distinct issues, we will decide them in separate and subsequent opinions. See, e.g., United States v. Santiago-Rivera, 744 F.3d 229, 231 n.1 (1st Cir. 2014).
- 3 - telling Alston that reporting him "was the stupidest thing [Alston]
could have ever done."
Alston alleges that the Board, the entity responsible
for hiring, firing, and disciplining the Town's firefighters,
failed to take appropriate action. Instead of disciplining Pender
for his racist comment, the Board protected and rewarded the
lieutenant. Alston asserts that, since the 2010 incident, the
Town and other defendants, as well as the Department, have punished
him in various ways, including the stonewalling of his complaints,
insufficiently investigating those complaints, covering up the
truth, encouraging the ostracization of Alston by other
firefighters, denying him promotions, and constantly harassing
him. These punitive actions allegedly continued even after Alston
filed suit in state court and complained to the Massachusetts
Commission Against Discrimination.
In the fall of 2013, the Boston Globe reported on
Alston's state-court suit. At that point, Alston says, the Town
increased its efforts to discredit his claims and force him out of
the Department on a pretextual basis.
Against this backdrop, we introduce the appellee.
Spiegel is an elected Town Meeting member and an appointed member
of the Advisory Committee.2 Alston alleges that Spiegel has
The record offers little information about the status of 2
Town Meeting members, but the district court took judicial notice
- 4 - frequent contact with the Board and that (until Alston sued him)
he acted as an "unofficial surrogate" for the Board.
According to the SAC, Spiegel distributed a "letter to
the editor," by email, to members of the Town Meeting on September
19, 2013. The letter, authored by a retired black fire lieutenant,
had been passed out at a public meeting the day before by
Selectwoman Nancy Daly. It attacked Alston's credibility and cast
him in a negative light. In the same email, though, Spiegel
directed Town Meeting members to a quote from Selectwoman Daly
taken from that day's local newspaper in which she cautioned
against a rush to judgment before the remainder of the facts
relevant to Alston's complaint could be made public. Spiegel
echoed Daly's sentiments about reserving judgment and noted only
that the letter provided some "additional insight."
Alston further alleges that, in early 2014, the Town
arranged for a psychiatrist to deem Alston "unfit for duty" and
placed him on unpaid leave with the intent to terminate his
employment. In December of that year, Alston's case received wider
publicity in the media. Thereafter, Alston says, the Town
of the fact that the Town has 240 Town Meeting members. See Alston, 2017 WL 3387132, at *3 n.5. So, too, the record is murky as to the precise nature and function of the "Advisory Committee." It indicates, though, that the Advisory Committee is linked in some way to the Town's governmental structure and that one of its roles is to approve financial settlement agreements to which the Town is a party. Such agreements may settle "claims for racial discrimination."
- 5 - retaliated against him by giving Spiegel access to Alston's
personnel file. Spiegel is alleged to have told several people
gathered in the Board's public meeting room that he had such access
as a result of his position as a Town Meeting member. He is also
alleged to have told a woman who was wearing an "I support Gerald
Alston" sticker that she would not support Alston if she knew the
real story contained in his personnel file. In this conversation,
Spiegel allegedly represented to the Alston supporter that he was
speaking on behalf of the Town.
Additionally, Spiegel claimed (falsely, according to the
SAC) that two black firefighters had told him that they did not
support Alston. When questioned about his statements, Spiegel
allegedly grew extremely agitated and put his face close to the
supporter's face and raised his voice. The conversation ended
when Spiegel shouted, "I'm disgusted," and left the room.
On February 13, 2015, Alston was placed on paid
administrative leave. He asserts that despite the Selectmen's
publicly conciliatory stance toward him, "they tacitly encouraged
their unofficial surrogates, including advisory committee member
and town meeting member, Stanley Spiegel to smear Mr. Alston and
undermine public support for him." Just over a year later — on
February 16, 2016 — the Board terminated Alston's paid
administrative leave. Alston was formally dismissed from his
- 6 - firefighter position by unanimous vote of the Board on October 5,
2016.
Alston filed suit in the federal district court roughly
ten months before his formal discharge. Two months later, he filed
an amended complaint, adding seven other plaintiffs. Various
defendants filed motions to dismiss, which the district court
referred to a magistrate judge. See Fed. R. Civ. P. 73(a). As
relevant here, the magistrate judge recommended dismissing
Alston's claims against Spiegel with prejudice for failure to state
a claim. See Fed. R. Civ. P. 12(b)(6). Alston objected to this
recommendation. The district court overruled his objection,
except that the court dismissed Alston's claims against Spiegel
without prejudice, thus allowing Alston to attempt to re-plead
those claims. Alston proceeded to file the SAC in an effort, inter
alia, to rejuvenate his claims against Spiegel. Once again,
Spiegel moved to dismiss, and the district court referred his
motion to the magistrate judge. The magistrate judge found that
the factual allegations as to Spiegel were essentially the same as
in the previously dismissed complaint, except for a few "minimal"
changes, and again recommended dismissal with prejudice for
failure to state a claim. Alston, 2017 WL 3387132, at *5. Alston
objected to this recommendation but, in April of 2017, the district
court adopted the recommendation and dismissed Alston's claims
against Spiegel with prejudice. A hiatus ensued, during which the
- 7 - district court disposed of Alston's remaining claims against the
other defendants. This timely appeal followed.
II. ANALYSIS
We afford de novo review to a district court's order
granting a motion to dismiss for failure to state a claim. See
Santiago, 655 F.3d at 72. The district court's rationale is not
binding upon us, and we may affirm an order of dismissal on any
ground made manifest by the record. See id. (citing Román-Cancel
v. United States, 613 F.3d 37, 41 (1st Cir. 2010)).
When reviewing the grant of such a motion, "we accept as
true all well-pleaded facts alleged in the complaint and draw all
reasonable inferences therefrom in the pleader's favor." Id. Even
so, we need not credit a plaintiff's "[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). At
bottom, a complaint will survive a motion to dismiss when it
alleges "enough facts to state a claim to relief that is plausible
on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). A claim is plausible when the factual content adumbrated
in the complaint permits a reasonable inference that the defendant
is liable. See Iqbal, 556 U.S. at 678. "If the factual allegations
in the complaint are too meager, vague, or conclusory to remove
the possibility of relief from the realm of mere conjecture,"
dismissal is proper. SEC v. Tambone, 597 F.3d 436, 442 (1st Cir.
- 8 - 2010); see Iqbal, 556 U.S. at 678 ("Where a complaint pleads facts
that are merely consistent with a defendant's liability, it stops
short of the line between possibility and plausibility of
entitlement to relief." (internal quotations omitted)).
With these parameters in place, we zero in on Alston's
claims against Spiegel. Generally, Alston alleges that the Town
has "a policy, practice, and custom of opposing racial equality,
enforcing racial subordination, engaging in affirmative action and
favoritism towards white residents and employees, and retaliating
against persons who protest racial discrimination." With specific
reference to Spiegel, Alston pleads violations of 42 U.S.C.
§§ 1981, 1983, and 1985 for "enforcing the Town's unconstitutional
policy, practice, and custom," for retaliating against Alston for
protesting the Town's "policy, practice, and custom," and for
"discriminating against [Alston] on the basis of race." Relatedly,
Alston pleads that Spiegel acted under color of law and violated
clearly established law. We examine these plaints one by one.
A. Section 1981.
As relevant here, section 1981 affords relief when
racial discrimination precludes a plaintiff from entering a
contractual relationship or when racial discrimination impairs a
plaintiff's existing contractual relationship. See Domino's
Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006). The text of
section 1981 provides in relevant part that "[a]ll persons within
- 9 - the jurisdiction of the United States shall have the same right in
every State and Territory to make and enforce contracts . . . as
is enjoyed by white citizens." 42 U.S.C. § 1981(a). The
prophylaxis of section 1981 also extends to discriminatory
dismissals, see Domino's Pizza, 546 U.S. at 477, and "prohibits
not only racial discrimination but also retaliation against those
who oppose [such discrimination]," Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 570 U.S. 338, 355 (2013) (citing CBOCS W., Inc. v.
Humphries, 553 U.S. 442, 445 (2008)). To state a discrimination
claim under section 1981, a plaintiff must show that he is a member
of a racial minority, that the defendant discriminated against him
on the basis of his race, and that the discrimination implicated
the right to make and enforce contracts. See Hammond v. Kmart
Corp., 733 F.3d 360, 362 (1st Cir. 2013).
As a preliminary matter, "[a]ny claim brought under
§ 1981 . . . must initially identify an impaired 'contractual
relationship,' under which the plaintiff has rights." Domino's
Pizza, 546 U.S. at 476 (quoting 42 U.S.C. § 1981(b)). The only
identifiable contract that can be gleaned from the SAC is Alston's
employment relationship with the Town. Although Alston does not
specifically mention this contract in framing his allegations
against Spiegel, we will infer (favorably to Alston) that his
employment contract is the relevant contract for purposes of his
section 1981 claim. Thus — to make out his discrimination claim
- 10 - — Alston must plausibly allege that Spiegel's conduct was motivated
by race and impaired Alston's employment relationship. Similarly
— to make out his retaliation claim — Alston must plausibly allege
that Spiegel's impairment of Alston's contractual relationship was
as a result of Alston's opposition to the Town's racial
discrimination. See Hammond, 733 F.3d at 362.
We begin with Alston's race discrimination claim. One
insurmountable obstacle that blocks this claim is that the SAC
never alleges that Spiegel's conduct was motivated by Alston's
race. Nothing in the SAC suggests that Spiegel considered Alston's
race either when deciding to distribute the letter or when
confronting Alston supporters. Nor does the SAC include any
allegation of racial animus on Spiegel's part. In the absence of
such allegations, Alston has utterly failed to make out a claim
for racial discrimination under section 1981. See Fantini v. Salem
State Coll., 557 F.3d 22, 33-34 (1st Cir. 2009).
Alston's race discrimination claim runs headlong into a
second — and equally insurmountable — obstacle: the SAC does not
allege that Spiegel's conduct impaired Alston's employment
relationship with the Town in any way. Alston does not allege,
for instance, that Spiegel was his employer, that Spiegel had any
influence on the terms and conditions of his employment, or that
Spiegel had any role in the enforcement of his contract. In fact,
the SAC contains nothing to connect Spiegel either to the contract
- 11 - as a whole or to any particular provision in it. To the contrary,
the SAC alleges that the employment relationship between the Town's
firefighters and the Town is enforced through the Board. According
to the SAC, the Selectmen are the "ultimate decision-makers with
respect to the hiring, firing, promotion, demotion, and
discipline" of the firefighters. Spiegel is not alleged to be a
member of the Board and — based on the SAC's allegations — there
is no principled way in which we can infer that Spiegel's conduct
resulted in the Board's termination of Alston's employment.
None of this should be a surprise to Alston. Spiegel
stressed the lack of connectivity between his actions and Alston's
employment in motions to dismiss the various iterations of Alston's
complaint, and the magistrate judge twice found this argument
persuasive. See Alston, 2017 WL 3387132, at *4-6. In an apparent
effort to plug this hole, the SAC alleges that "Spiegel has
frequent contact with the Board of Selectmen, both formally and
informally," and that "until named as a defendant in this
lawsuit[,] [Spiegel] acted as an unofficial surrogate for the Board
of Selectmen." But neither of these allegations can sustain a
reasonable inference that Spiegel's actions had a detrimental
effect on Alston's employment with the Town. The SAC does not
describe the nature of the "frequent contact" and does not include
any factual matter suggesting that the contact between Spiegel and
the Board concerned Alston's employment.
- 12 - Even when taken in the light most favorable to Alston,
the allegations that Spiegel disseminated a letter casting Alston
in a negative light and confronted an Alston supporter, in
combination with the allegations that Spiegel has had contact with
the Selectmen, do not make out a plausible claim for discriminatory
interference with Alston's employment contract. So, too, the
conclusory allegation that Spiegel was an "unofficial surrogate"
for the Board is wholly devoid of factual support and is,
therefore, insubstantial. Aponte-Torres v. Univ. of P.R., 445
F.3d 50, 55 (1st Cir. 2006) (explaining that a court, when passing
upon a motion to dismiss, should not "credit bald assertions,
unsupportable conclusions, periphrastic circumlocutions, and the
like" (internal quotations omitted)). We thus hold — as did the
district court — that Alston failed to plead an actionable section
1981 race discrimination claim.
Given this holding, we need not linger long over Alston's
section 1981 retaliation claim. To establish such a claim, a
plaintiff must show that he undertook protected conduct, that he
experienced an adverse employment action, and that the latter was
causally connected to the former. See Pina v. Children's Place,
740 F.3d 785, 800-01 (1st Cir. 2014). On a motion to dismiss, "we
must determine whether, as to each defendant, a plaintiff's
pleadings are sufficient to state a claim on which relief can be
granted." Sanchez v. Pereira-Castillo, 590 F.3d 31, 48 (1st Cir.
- 13 - 2009) (emphasis in original). Accordingly, Alston must plausibly
allege Spiegel's role in the adverse employment action (in this
case, his dismissal). See Ocasio-Hernández v. Fortuño-Burset, 640
F.3d 1, 16 (1st Cir. 2011) ("[E]ach defendant's role in the
termination decision must be sufficiently alleged to make him or
her a plausible defendant."); Peñalbert-Rosa v. Fortuño-Burset,
631 F.3d 592, 594 (1st Cir. 2011) ("[S]ave under special
conditions, an adequate complaint must include not only a plausible
claim but also a plausible defendant."). Here — as we already
have pointed out — the SAC fails to link Spiegel to the Board's
termination of Alston's employment and, thus, fails to state a
claim for retaliation under section 1981.
In his reply brief, Alston seems to argue that Spiegel's
comments to the Alston supporter themselves constituted
retaliation "because they publicly broadcast the fact that
Brookline had provided Spiegel with access to derogatory
information in Alston's personnel file."3 But these allegations
do not make out a retaliation claim under section 1981 because
they do not connect Spiegel to any injury to Alston's contractual
relationship with the Town. Section 1981 is not a full suit of
3We note, in passing, that Alston never distinguishes between the allegations that go to his section 1981 retaliation claim and those that go to his section 1985 retaliation claim. He generally describes Spiegel's conduct as "retaliation," eschewing any further amplification.
- 14 - armor — a "strange remedial provision designed to fight racial
animus in all of its noxious forms." Domino's Pizza, 546 U.S. at
476. Rather, it is a bulletproof vest, designed specifically to
safeguard contractual relationships. See id. at 476-77
(concluding that Congress "positively reinforced" the contractual-
obligation element of section 1981 claims). So whether or not
Spiegel's comments were retaliatory in the ordinary sense, they
were not retaliatory within the purview of a statute designed to
protect contractual relationships from racial discrimination.
That completes this phase of our inquiry. With respect
to section 1981, the SAC — though prolix — is notable more for
what it does not say than for what it says. Pertinently, it does
not allege that Spiegel's conduct was racially motivated, that
Spiegel ever interacted with Alston, that Spiegel had even the
slightest authority over Alston's employment, or that Spiegel had
any involvement in any action that impacted Alston's employment.
Although section 1981 may require more — a matter on which we take
no view — these deficiencies alone make it evident that the
district court did not err in dismissing Alston's section 1981
claims against Spiegel.
B. Section 1983.
"Section 1983 is a vehicle through which individuals may
sue certain persons for depriving them of federally assured rights"
under color of state law. Gagliardi v. Sullivan, 513 F.3d 301,
- 15 - 306 (1st Cir. 2008). To state a claim under section 1983, Alston
must plead that he was deprived of a constitutional or federal
right, that a causal connection existed between Spiegel's action
and the deprivation of that right, and that Spiegel's actions
constituted state action. See Sanchez, 590 F.3d at 41; Gagliardi,
513 F.3d at 306. To this end, Alston alleges that Spiegel
discriminated against him on the basis of race and that Spiegel
retaliated against him for exercising his First Amendment rights
in protesting the Town's racial discrimination.
We start with Alston's claim of racial discrimination.
We note, though, that the SAC does not explicitly invoke any
particular constitutional provision in relation to Spiegel's
conduct. However, the SAC does invoke the Equal Protection Clause,
U.S. Const. amend. XIV, § 1, with respect to Alston's parallel
allegations concerning the Town's alleged discriminatory conduct.
Since Alston gives us no other choice, we assume that his
allegations of race discrimination against Spiegel likewise seek
to vindicate his perceived rights under the Equal Protection
Clause.
To establish an equal protection claim, Alston must
allege facts indicating that, compared with others similarly
situated, he was selectively treated based on an impermissible
consideration (in this case, race). See Barrington Cove Ltd.
P'ship v. R.I. Hous. & Mortg. Fin. Corp., 246 F.3d 1, 7 (1st Cir.
- 16 - 2001). Alston has failed to satisfy this requirement. As
previously discussed, see supra Part II(A), the SAC stumbles on
the lowest rung of the ladder because it is bereft of any factual
allegations suggesting that Spiegel distributed the letter and
confronted Alston's supporters as a result of Alston's race. There
was, therefore, no plausible way for the district court to conclude
that Spiegel's treatment of Alston was based on impermissible
criteria. See id.
As to this issue, there is a second (and equally
dispositive) flaw in the SAC. Alston's race discrimination claim
is implausible because it fails to identify anyone who was
"similarly situated" to Alston. None of the allegations directed
against Spiegel describe Spiegel's conduct toward other
firefighters (let alone firefighters involved in employment
disputes and litigation, like Alston). This inadequacy, in and of
itself, suffices to validate the dismissal of Alston's section
1983 race discrimination claim. See Mulero-Carrillo v. Román-
Hernández, 790 F.3d 99, 105-06 (1st Cir. 2015).
We are left with Alston's section 1983 claim of
retaliation for his exercise of First Amendment rights. See U.S.
Const. amend. I. To state such a claim, the SAC must show that
Alston's speech was protected under the First Amendment (so as to
shield him from adverse employment action in retaliation for such
speech) and that Alston suffered an adverse employment action
- 17 - caused by Spiegel. See Gagliardi, 513 F.3d at 306. Alston must
also show "that the protected expression was a substantial or
motivating factor in the adverse employment decision." Curran v.
Cousins, 509 F.3d 36, 45 (1st Cir. 2007).
"[T]he 'adverse employment action' inquiry in the
section 1983 context focuses on whether an employer's acts, viewed
objectively, place substantial pressure on the employee's
political views." Barton v. Clancy, 632 F.3d 9, 29 (1st Cir. 2011)
(quoting Bergeron v. Cabral, 560 F.3d 1, 8 (1st Cir. 2009)). This
inquiry looks to "whether the defendants' acts would have a
chilling effect on the employee's exercise of First Amendment
rights." Id. As such, the "pertinent question" here is whether
Spiegel's actions constituted the kind of action that "would deter
'a reasonably hardy individual[]' from exercising his
constitutional rights." Id. (quoting Agosto-de-Feliciano v.
Aponte–Roque, 889 F.2d 1209, 1217 (1st Cir. 1989) (en banc)).
Measured against this framework, Alston's allegations
fall short of stating a plausible First Amendment retaliation claim
under section 1983. It is fanciful to think that Spiegel's
distribution of a letter and his confrontation of two Alston
supporters would deter a reasonable person from exercising his
First Amendment rights against his employer. These activities
cannot, therefore, comprise an adverse employment action. We add
only a few words of explanation.
- 18 - To begin, the SAC alleges that the letter — which
attacked Alston's credibility — was neither drafted nor published
by Spiegel. It was written by another firefighter and had already
been "distributed at a public meeting the day before" by
Selectwoman Daly. What is more, Spiegel's email forwarding the
letter was addressed to fellow Town Meeting members, not to Alston,
or to persons alleged to have any connection to Alston. And in
the email, Spiegel specifically warned against "rush[ing] to
judgment." Alston never alleges how he came across this email.
More importantly, he never alleges that he knew about this email
when considering whether to continue to pursue his grievances
against his employer. There is, therefore, no factual plinth upon
which to rest a claim that Spiegel's unoriginal letter, presented
to people unrelated to Alston with a warning not to rush to
judgment, communicated to Alston that his exercise of his First
Amendment rights spelled trouble and should cease.
Alston's allegations concerning Spiegel's interactions
with the Alston supporter and others are equally impuissant. The
SAC alleges that over a year after Spiegel sent the email, he
berated an Alston supporter — not Alston himself — and falsely
claimed in front of that Alston supporter and others that two black
firefighters were not supportive of Alston. Here, too, the SAC
lacks any factual allegations sufficient to establish how an event
that did not take place in Alston's presence came to his attention.
- 19 - Nor does the SAC allege how conduct that might or might not have
been intimidating to the supporter wound up intimidating Alston
himself.
In an effort to blunt the force of this reasoning, Alston
argues that Spiegel's conduct, as described in the SAC, amounts to
an implied threat to disseminate injurious information about
Alston and is, therefore, the kind of conduct that would chill an
employee's speech. In support, Alston relies almost exclusively
on the decision in Ray v. Ropes & Gray LLP, 961 F. Supp. 2d 344
(D. Mass. 2013). His reliance is mislaid.
In Ray, the plaintiff alleged that he was discriminated
and retaliated against by his employer, a law firm, on the basis
of his race. See id. at 350. He filed a charge with the Equal
Employment Opportunity Commission (EEOC) alleging as much. See
id. at 351. The EEOC initially found no reasonable cause to
believe that Ray's employer had discriminated or retaliated
against him. See id. at 352. But on further consideration, the
EEOC changed course and concluded that, while the evidence in fact
did not support a finding of discrimination, there was probable
cause to believe that the defendant had retaliated against Ray for
filing the charge. See id.
Ray then mailed the EEOC's finding to a number of people,
including Dean Martha Minow of Harvard Law School. See id. A
legal online publication learned of Ray's contact with Dean Minow
- 20 - and reached out to the defendant for comment. See id. In response,
the defendant handed Ray's EEOC determination letter to the
website, and the website then posted it online. See id. The
letter contained "a recitation of evidence, including detailed
information about Ray's performance reviews and a description of
the internal investigation of Ray and his reprimand by the firm
for alleged criminal misconduct with a subordinate." Id. The
district court concluded that "[t]he threat of dissemination of
derogatory private information, even if true, would likely deter
any reasonable employee from pursuing a complaint against his
employer." Id. at 360.
Ray does not advance Alston's cause. For one thing,
Spiegel was neither Alston's employer nor a person alleged to be
acting in the employer's stead. For another thing, even assuming
that Alston was aware of Spiegel's conduct, the SAC does not allege
that injurious information would come to light at Spiegel's
direction; nor does it allege what that information might concern.
This is in marked contrast to Ray, in which the released
information was described as "severely damaging information." Id.
And the final nail in the coffin is that Alston does not allege
that Spiegel ever threatened to disseminate information extracted
from Alston's personnel file. The only conduct alleged is Spiegel
telling the Alston supporter that "she would not support Mr. Alston
if she knew the 'real story' contained in Mr. Alston's personnel
- 21 - file." Nothing in this statement allows us to infer that Spiegel
communicated to Alston that he would spread detrimental
information about Alston to others.
To sum up, we do not gainsay that a campaign of
harassment may give rise to a First Amendment claim under section
1983. See Barton, 632 F.3d at 29; Bart v. Telford, 677 F.2d 622,
625 (7th Cir. 1982). Here, however, the two seemingly independent
events proffered by Alston in support of his First Amendment claim
occurred over a year apart; and neither event is alleged to have
been effectively communicated to Alston. Nor does the SAC allege
that Spiegel had any contact at all with Alston (personal or
professional) or that Alston even knew who Spiegel was. One
swallow does not a summer make, and the two unconnected events
described in the SAC cannot plausibly be characterized as a
campaign of harassment sufficient to chill the speech of a
"reasonably hardy individual[]." Agosto-de-Feliciano, 889 F.2d at
1217.
Let us be perfectly clear. We recognize that "[a]
traditional employment relationship is not a prerequisite to a
First Amendment retaliation claim." Barton, 632 F.3d at 28. But
when — as in this case — the allegations essentially amount to a
distant critic bad-mouthing or dissembling about an individual
behind his back twice over the course of a year, the complaint
lacks sufficient allegations of the degree of pressure on the
- 22 - individual's views needed to state a plausible First Amendment
retaliation claim. See id. at 29; cf. McKee v. Hart, 436 F.3d
165, 173 (3d Cir. 2006) ("Courts have not found violations of
employees' First Amendment rights 'where the employer's alleged
retaliatory acts were criticism, false accusations, or verbal
reprimands.'" (quoting Brennan v. Norton, 350 F.3d 399, 419 (3d
Cir. 2003))); Coszalter v. City of Salem, 320 F.3d 968, 976 (9th
Cir. 2003) ("[W]hen an employer's response includes only minor
acts, such as 'bad-mouthing,' that cannot reasonably be expected
to deter protected speech, such acts do not violate an employee's
First Amendment rights."). We therefore conclude that the SAC
fails to allege the kind of conduct that would dissuade a
reasonable person from exercising his First Amendment right to
free speech. It follows inexorably that the district court did
not err in dismissing Alston's section 1983 retaliation claim.
C. Section 1985.
Section 1985 provides a remedy for acts of civil
conspiracy in which two or more individuals conspire for the
purpose of depriving another of rights or privileges accorded to
them by law. See 42 U.S.C. § 1985(3). To plead an actionable
claim under this statute, Alston must allege the existence of a
conspiracy, allege that the purpose of the conspiracy is "to
deprive the plaintiff of the equal protection of the laws,"
describe at least one overt act in furtherance of the conspiracy,
- 23 - and "show either injury to person or property, or a deprivation of
a constitutionally protected right." Pérez-Sánchez v. Pub. Bldg.
Auth., 531 F.3d 104, 107 (1st Cir. 2008). On this score, Alston
never gets out of the starting gate; the SAC fails to allege,
either directly or inferentially, that any conspiracy existed.
Refined to bare essence, a conspiracy is a "combination
of two or more persons acting in concert to commit an unlawful
act." Earle v. Benoit, 850 F.2d 836, 844 (1st Cir. 1988). A civil
rights conspiracy, though, must have certain other features. To
plead such a conspiracy, a plaintiff "must plausibly allege facts
indicating an agreement among the conspirators to deprive the
plaintiff of h[is] civil rights." Parker v. Landry, 935 F.3d 9,
18 (1st Cir. 2019). When direct evidence of such an agreement is
unavailable, "the plaintiff must plead plausible factual
allegations sufficient to support a reasonable inference that such
an agreement was made." Id.; see Earle, 850 F.2d at 843. Where,
as here, a complaint aspires to allege a conspiracy in violation
of section 1985(3), it must "elaborate[] []or substantiate[] [any]
bald claims that certain defendants 'conspired' with one another."
Slotnick v. Garfinkle, 632 F.2d 163, 166 (1st Cir. 1980); see
Francis-Sobel v. Univ. of Me., 597 F.2d 15, 17 (1st Cir. 1979)
(requiring "at least minimum factual support of the existence of
a conspiracy"). Vague and conclusory allegations about persons
working together, with scant specifics as to the nature of their
- 24 - joint effort or the formation of their agreement, will not suffice
to defeat a motion to dismiss. See Parker, 935 F.3d at 18.
In the case at hand, those are precisely the kind of
allegations that Alston offers. He concedes that the SAC does not
allege an express agreement but, rather, argues that an agreement
can be inferred from "Spiegel and Daly's distribution of the same
letter criticizing Alston in 2013 and from Spiegel's self-reported
knowledge of the contents of Alston's personnel file in 2014."
Inferences, though, are not infinitely elastic, and these
allegations are manifestly insufficient to make out an agreement.
Were the law otherwise, the plausibility standard would be reduced
to mere rhetoric.
Once again, what the SAC does not say is enlightening.
Alston does not allege any contact or conversation between Spiegel
and Daly, nor does he allege any agreement between them even
minimally related to him (let alone to the deprivation of his
rights). The SAC does not even allege that Spiegel received the
much-bruited letter from Daly. It tells us only that Daly
distributed the letter at a public meeting, without including any
information as to whether Spiegel was even in attendance. Although
it may be within the realm of possibility that Daly and Spiegel
collaborated to circulate the letter, nothing in the SAC's factual
allegations permit a reasonable inference to that effect. A
pleader is entitled to have reasonable inferences drawn in his
- 25 - favor, but he is not entitled to the benefit of speculation
unanchored to sufficiently supportive facts. See Peñalbert-Rosa,
631 F.3d at 596.
The same sort of deficiency dulls the force of the
allegation that Spiegel had access to Alston's personnel file.
The SAC alleges that the Town provided Spiegel access to that file,
and nothing more. It does not identify Daly (or any person for
that matter) as having collaborated with Spiegel in this endeavor.
And even when viewed through the most forgiving lens, the SAC
cannot plausibly be read to suggest that Spiegel and anyone else
were acting in concert. After all, the SAC contains no factual
allegations from which to infer that Spiegel and any other person
reached a common understanding of what they were hoping to achieve.
Because the SAC fails to plead any factual support for the
existence of a conspiracy, the district court's dismissal of
Alston's section 1985 claims was unimpugnable. See Francis-Sobel,
597 F.2d at 17.
III. CONCLUSION
We need go no further. For aught that appears, Spiegel
was at most a peripheral player in the evolving saga of Alston's
difficulties with the Town, the Board, and the Department. Alston
has had three opportunities to plead his claims against Spiegel,
and he has come up empty. There simply are no facts pleaded in
the SAC sufficient to ground a reasonable inference that Spiegel
- 26 - is liable to Alston for any of the wrongs alleged. Put bluntly,
the facts set forth are too meager to lift Alston's claims over
the threshold of conjecture. We therefore affirm the judgment of
the district court dismissing Alston's claims. We retain appellate
jurisdiction over Alston's appeal insofar as it relates to his
claims against other defendants.
So Ordered.
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