United States Court of Appeals For the First Circuit
No. 22-1137
HENRY DIAZ,
Plaintiff, Appellant,
v.
CITY OF SOMERVILLE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Jennifer C. Boal, U.S. Magistrate Judge]
Before
Barron, Chief Judge, Selya and Kayatta, Circuit Judges.
James J. Heggie on brief for appellant. Leonard H. Kesten, Michael Stefanilo, Jr., Deidre Brennan Regan, and Brody, Hardoon, Perkins & Kesten, LLP on brief for appellee.
February 1, 2023 SELYA, Circuit Judge. Police officers occupy positions
of trust and authority and, thus, are understandably held to high
standards of conduct. Notwithstanding those standards, plaintiff-
appellant Henry Diaz, a police officer, contends that the City of
Somerville (the City) wrongfully discharged him after he was
involved in an off-duty altercation with a civilian and lied about
the altercation during an internal investigation. Diaz, who is
both Black and Hispanic, contends that his discharge was based on
his race in violation of Title VII and Mass. Gen. Laws ch. 151B.
The district court concluded that Diaz's contentions were
unsupported and entered summary judgment in favor of the City. We
affirm.
I
We draw the relevant facts from the summary judgment
record, construing all disputed facts and reasonable inferences
therefrom "in the light most flattering to the party against whom
summary judgment was entered" (here, Diaz). Pleasantdale Condos.,
LLC v. Wakefield, 37 F.4th 728, 730 (1st Cir. 2022).
In the early morning hours of June 30, 2017, Diaz (an
off-duty Somerville police officer) was driving through East
Boston when he was forced to stop because a pedestrian stepped in
front of his car. A confrontation ensued, during which Diaz got
out of his car and repeatedly punched the pedestrian before driving
away. The pedestrian reported the incident to the authorities in
- 2 - East Boston but did not appear at the subsequent hearing on the
matter. As a result, the case was dismissed without prejudice.
The Somerville Police Department was apprised of the
incident and conducted its own internal investigation. During
this investigation, Diaz maintained that he had merely defended
himself out of fear for his own safety. Withal, the East Boston
police report, a video of the incident, and witness interviews
suggested otherwise. The Somerville Police Department
investigation concluded that Diaz had been the aggressor and that
the incident manifested conduct unbecoming an officer. That
investigation also concluded that Diaz had not been truthful during
the course of the probe. And after reviewing the report of the
investigation, the City's police chief recommended disciplinary
action up to and including dismissal.
In November of 2017, the City held a hearing to review
the police department's findings and to present a disciplinary
recommendation to the mayor. Diaz was given notice of the hearing
and was represented by counsel. After considering evidence
presented by both the police department and Diaz, the hearing
officer concurred with the police department's findings and
determined that just cause existed to terminate Diaz's employment.
The mayor adopted the findings of the hearing officer and fired
Diaz.
- 3 - Diaz appealed the termination of his employment to the
Massachusetts Civil Service Commission (the Commission). See
Mass. Gen. Laws ch. 31, § 43. After three days of hearings, the
Commission found, by a preponderance of the evidence, that Diaz
had "engaged in substantial misconduct which adversely affect[ed]
the public interest" and had violated departmental rules and
regulations by engaging in conduct unbecoming an officer and by
prevaricating during the investigation.
The Commission proceeded to consider whether those
violations justified the City's decision to terminate Diaz's
employment. Diaz argued that he, as a Black Hispanic officer, had
been disciplined more severely than officers of other races who
had committed similar, or worse, infractions. The Commission
found, however, that the proffered comparators were
distinguishable because the misconduct in those cases "was not as
serious," the comparators themselves were "no longer employed as
police officers," and/or those matters had been resolved through
settlements.
The Commission went on to consider other potentially
mitigating circumstances, including Diaz's previously unblemished
disciplinary record and its own preference for progressive
discipline. Even after taking those matters into account, though,
the Commission concluded that "the seriousness of the misconduct
here, which includes pummeling a private citizen who was not posing
- 4 - a physical threat to Mr. Diaz, and then lying about the reasons
for this misconduct, warrant termination." The Commission issued
its final decision on April 11, 2019, upholding the termination of
Diaz's employment as a police officer. Diaz did not seek judicial
review of that decision and the appeal period has expired.
But even while the Commission's proceedings were still
in progress, Diaz charted a parallel course. Just before the
Commission's final hearing, he lodged a charge of discrimination
with the Massachusetts Commission Against Discrimination (the
MCAD). See Mass. Gen. Laws ch. 151B, § 5. In May of 2019, Diaz
sued the City in a Massachusetts state court, alleging that he was
discharged because of his race.1 See 42 U.S.C. § 2000e-2(a)(1);
Mass. Gen. Laws ch. 151B. The City removed the case to the United
States District Court for the District of Massachusetts. See 28
U.S.C. § 1441. After some pretrial skirmishing and the expiration
of the discovery period, the City moved for summary judgment.2 See
Fed. R. Civ. P. 56(a).
1 Diaz did not receive a right-to-sue letter but filed his complaint more than ninety days after lodging his charge of discrimination with the MCAD. See Mass. Gen. Laws ch. 151B, § 9 ("Any person claiming to be aggrieved by a practice made unlawful under [chapter 151B], may, at the expiration of ninety days after the filing of a complaint with the commission, . . . bring a civil action for damages or injunctive relief or both in the superior . . . court for the county in which the alleged unlawful practice occurred . . . ."). 2By consent of the parties, the case was heard and determined by a magistrate judge. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.
- 5 - The district court held that, for purposes of Diaz's
chapter 151B claim, the Commission's unappealed decision precluded
Diaz from relitigating the issues of whether the City had a
legitimate reason for terminating his employment and whether he
had been subject to disparate treatment. And although the Title
VII claim was not precluded by the Commission's decision, the
district court determined that the comparators submitted by Diaz
were insufficient to show that the City's stated reasons for
termination were pretextual.
Based upon these rulings, the district court granted the
City's motion for summary judgment. This timely appeal followed.
II
We review a district court's entry of summary judgment
de novo. See Faiella v. Fed. Nat'l Mortg. Ass'n, 928 F.3d 141,
145 (1st Cir. 2019). "In the course of that review, we take the
facts in the light most hospitable to the nonmovant . . . and draw
all reasonable inferences therefrom to that party's behoof." Gen.
Hosp. Corp. v. Esoterix Genetic Lab'ys, LLC, 16 F.4th 304, 308
(1st Cir. 2021).
With this standard as our guide, we turn to Diaz's
claims. We start with his state-law claim and then address his
federal claim.
- 6 - A
Diaz's state-law claim is a disparate-treatment claim
under Mass. Gen. Laws ch. 151B. That statute makes it unlawful
for "an employer, by himself or his agent, because of []race [or]
color, . . . to discharge from employment [an] individual." Mass.
Gen. Laws ch. 151B, § 4(1). Massachusetts courts borrow from
federal law and employ a framework similar — but not identical —
to that established in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), when analyzing chapter 151B disparate-treatment claims
in which there is no direct evidence of discrimination. See, e.g.,
Knight v. Avon Prods., Inc., 780 N.E.2d 1255, 1261 (Mass. 2003).
As is true in federal cases, the first step of the
framework requires the plaintiff to establish a prima facie case
by showing that "(1) he is a member of a [protected class]; (2) he
performed his job at an acceptable level; [and] (3) he was
terminated." Blare v. Husky Injection Molding Sys. Bos., Inc.,
646 N.E.2d 111, 115 (Mass. 1995); see Bulwer v. Mount Auburn Hosp.,
46 N.E.3d 24, 32-33 (Mass. 2016). If the plaintiff successfully
negotiates that step, the second step — which is the same under
both federal and state law — comes into play. At that step, the
burden of production shifts to the employer. There, the employer
must articulate "a legitimate, nondiscriminatory reason for its
[adverse] decision." Blare, 646 N.E.2d at 115.
- 7 - So long as the employer makes this modest second-step
showing, the burden reverts to the plaintiff. At this final step,
the Massachusetts approach diverges from the classic McDonnell
Douglas framework. Massachusetts is a "pretext only
jurisdiction," where a plaintiff "need only present evidence from
which a reasonable jury could infer that 'the [employer's] facially
proper reasons given for its action against [him] were not the
real reasons'" in order to survive summary judgment. Theidon v.
Harvard Univ., 948 F.3d 477, 505 (1st Cir. 2020) (first alteration
in original) (quoting Bulwer, 46 N.E.3d at 33). Thus, even though
a plaintiff pressing a Title VII claim must at a minimum present
evidence of animus — which may be done by demonstrating that the
employer's stated reason for the adverse action is so "unworthy of
credence" as to suggest animus, Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 147 (2000) — a plaintiff pressing a
chapter 151B claim need only present evidence that could create
the inference that the employer's stated reason for the adverse
action is not the real reason.3 And that showing can be made by
"demonstrat[ing] that similarly situated . . . employees were
3 There is an additional difference. Unlike federal law, Massachusetts law places the burden of persuasion on the moving party (here, the City) throughout the framework. See Bulwer, 46 N.E.3d at 34; Sullivan v. Liberty Mut. Ins. Co., 825 N.E.2d 522, 529 (Mass. 2005).
- 8 - treated differently." Matthews v. Ocean Spray Cranberries, Inc.,
686 N.E.2d 1303, 1309-10 (Mass. 1997).
In the case at hand, the district court supportably
determined — and the parties do not contest — that Diaz stated a
prima facie case of discrimination. The court went no further
with respect to Diaz's chapter 151B claim because it concluded
that the Commission's findings precluded Diaz from relitigating
the issues of whether the City articulated a legitimate,
nondiscriminatory justification for terminating his employment and
whether he had been treated disparately in comparison to other
similarly situated officers. Testing this conclusion requires us
to weigh the preclusive effect, if any, of the Commission's
findings.4
"[W]hen a state agency 'acting in a judicial
capacity . . . resolves disputed issues of fact properly before it
which the parties have had an adequate opportunity to
litigate,' . . . federal courts must give the agency's factfinding
the same preclusive effect to which it would be entitled in the
State's courts." Univ. of Tenn. v. Elliott, 478 U.S. 788, 799
(1986) (quoting United States v. Utah Constr. & Mining Co., 384
U.S. 394, 422 (1966)); see Baez-Cruz v. Mun. of Comerio, 140 F.3d
4On appeal, Diaz contests the district court's determination only as to disparate treatment.
- 9 - 24, 28 (1st Cir. 1998). Consequently, we must look to
Massachusetts law to determine what preclusive effect, if any, the
Commission's decision has on Diaz's state-law claim. See Baez-
Cruz, 140 F.3d at 28-29.
Under Massachusetts law, a previously litigated issue is
precluded when
"(1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication," was essential to the earlier judgment, and was actually litigated in the prior action.
Degiacomo v. City of Quincy, 63 N.E.3d 365, 369 (Mass. 2016)
(quoting Kobrin v. Bd. of Registration in Med., 832 N.E.2d 628,
634 (Mass. 2005)). If those conditions are satisfied, "[a] final
order of an administrative agency in an adjudicatory proceeding,
not appealed from and as to which the appeal period has expired,
precludes relitigation of the same issues between the same parties,
just as would a final judgment of a court of competent
jurisdiction." Stowe v. Bologna, 610 N.E.2d 961, 963 (Mass. 1993)
(alteration in original) (quoting Stowe v. Bologna, 592 N.E.2d
764, 766 (Mass. App. Ct. 1992)); see Alba v. Raytheon Co., 809
N.E.2d 516, 521-22 (Mass. 2004) (holding that issue preclusion
estopped plaintiff from relitigating issues in chapter 151B claim
- 10 - that were previously determined in unappealed administrative
proceeding).
Diaz does not gainsay that the Commission's decision was
a final adjudication on the merits and that he was a party to that
proceeding. Nor does he dispute that the Commission's
determination that he failed to identify comparators of sufficient
similarity to show disparate treatment was actually litigated and
was essential to the Commission's judgment. Instead, he asserts
that the issue of disparate treatment raised before the Commission
was not identical to the issue of disparate treatment presented to
the district court through his chapter 151B claim. The difference,
he says, is that the Commission was determining whether just cause
existed for his firing, whereas the district court was being asked
to adjudicate his claim of discrimination.
For present purposes, that is a distinction without a
difference. Just as the City bore the burden of persuasion on the
chapter 151B claim throughout the course of the modified McDonnell
Douglas framework, so too it bore the burden of persuasion before
the Commission. Massachusetts Ass'n of Minority L. Enf't Officers
v. Abban, 748 N.E.2d 455, 461 (Mass. 2001). And the issue of
whether Diaz had been treated differently than other similarly
situated officers was essential to, and precisely the same in,
both proceedings. The Commission examined the comparators offered
by Diaz and determined that they failed to show that he had been
- 11 - subjected to harsher discipline than others similarly situated
because the proposed comparators were different in material
respects. By offering comparators as his sole evidence of pretext,
Diaz sought to relitigate that very same issue before the district
court. The overlap between the issue of disparate treatment raised
before the Commission and the issue of disparate treatment raised
before the district court was "so substantial that preclusion [was]
plainly appropriate." Comm'r of Dep't of Emp't & Training v.
Dugan, 697 N.E.2d 533, 537 (Mass. 1998).
Diaz has another blade in his scabbard. He contends
that he should not be precluded from relitigating the issue of
disparate treatment because he offered additional comparators at
summary judgment — comparators that had not been displayed before
the Commission. That contention does not gain him any traction:
"issue preclusion is premised on a party's prior opportunity to
litigate an issue, not on whether the party made the best use of
that opportunity." In re Goldstone, 839 N.E.2d 825, 833 (Mass.
2005). Diaz had a full and fair opportunity to litigate the issue
of disparate treatment before the Commission; that he did so
without presenting all the evidence available to him does not
require that he be given a second bite at the cherry.
Diaz next assays a broader argument. He submits that
the Commission lacked jurisdiction to adjudicate his
- 12 - discrimination claim because he filed an MCAD complaint before the
Commission issued its final decision. The filing of the complaint,
he reasons, afforded the MCAD exclusive jurisdiction over his
discrimination claim. In support, he cites Mass. Gen. Laws ch.
151B, § 9, which requires a plaintiff seeking to bring claims under
chapter 151B first to satisfy the administrative requirement of
filing a charge of discrimination with the MCAD. See Charland v.
Muzi Motors, Inc., 631 N.E.2d 555, 557-58 (Mass. 1994). Section
9 further provides that once such a charge is filed, the
administrative proceedings of the MCAD are "exclusive" as to any
"acts declared unlawful" under chapter 151B and that "the final
determination on the merits" of any such complaint "shall exclude
any other civil action, based on the same grievance of the
individual concerned." Mass. Gen. Laws ch. 151B, § 9.
But there is a rub. At no time did Diaz either raise
this issue before the Commission or challenge the Commission's
jurisdiction through an appeal in state court. Nor did Diaz
advance this argument, face up and squarely, in the court below.
Indeed, at oral argument on the motion for summary judgment in
that court, Diaz's counsel stated that although the Commission
typically abstains from addressing issues of racial
discrimination, "they have jurisdiction where they could [address
those issues]." Under these circumstances, we hold that the
- 13 - argument has been waived.5 See Teamsters, Local No. 59 v. Superline
Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) ("[L]egal theories
not raised squarely in the lower court cannot be broached for the
first time on appeal.").
That ends this aspect of the matter. We hold — as did
the district court — that Diaz was precluded from relitigating,
within the context of his chapter 151B claim, the issue of whether
he had received disparate treatment compared to other similarly
situated officers. Because Diaz does not contend that he
demonstrated pretext in some manner other than by offering
comparators, he perforce has failed to carry his burden of
producing evidence showing that the City's stated reasons for
terminating him were pretextual. It follows that the district
court did not err in granting summary judgment for the City on
Diaz's chapter 151B claim.
5 In all events, Diaz fails to provide dispositive legal authority to bolster his interpretation of chapter 151B's exclusivity provision. Although he argues that the Supreme Judicial Court's decision in Town of Brookline v. Alston, 167 N.E.3d 385 (Mass. 2021), stands for the proposition that a pending charge of discrimination before the MCAD divests the Commission of jurisdiction to consider conduct that might relate to a claim of discrimination, the court did not reach that issue in Alston — a case in which the MCAD proceeding had concluded several years before the plaintiff filed his civil service appeal. See id. at 399; see also id. (stating that the Commission's consideration of "racist or retaliatory statements and acts" when determining whether just cause existed to discharge an employee "[did] not displace or undermine the purpose served by [chapter] 151B").
- 14 - B
This brings us to Diaz's federal disparate-treatment
claim. Under Title VII, it is unlawful for an employer "to
discharge any individual, or otherwise to discriminate against any
individual . . . because of such individual's race, color,
religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).
Federal law employs the classic McDonnell Douglas framework in
Title VII cases in which the plaintiff does not offer direct
evidence of discrimination. As indicated above, see supra Part
II(A), this framework diverges from its Massachusetts counterpart
at the third step. See Theidon, 948 F.3d at 505 n.39 (citing
Bulwer, 46 N.E.3d at 33); see also Reeves, 560 U.S. at 147-48.
The district court determined that Diaz stated a prima
facie case and that the City articulated a legitimate,
nondiscriminatory justification for terminating his employment.
For summary judgment purposes, then, Diaz's Title VII claim turns
on whether he has made out a genuine issue of material fact
regarding the third step of the framework: whether the City's
stated reason for firing Diaz was pretextual and, in fact,
motivated by some discriminatory animus. Udo v. Tomes, 54 F.3d 9,
13 (1st Cir. 1995).
Once again, Diaz attempts to prove pretext by showing
"that others similarly situated to him in all relevant respects
were treated differently by" the City. Conward v. Cambridge Sch.
- 15 - Comm., 171 F.3d 12, 20 (1st Cir. 1999). Unlike Diaz's state-law
claim, though, his Title VII claim is not precluded by the
Commission's unreviewed conclusions regarding comparator evidence.
State administrative proceedings, not judicially reviewed, do not
have preclusive effect with regard to Title VII claims. See Univ.
of Tenn., 478 U.S. at 796. Thus, we train the lens of our inquiry
on the proffered comparators.
When evaluating such comparators, "[r]easonableness is
the touchstone: while the plaintiff's case and the comparison
cases that he advances need not be perfect replicas, they must
closely resemble one another in respect to relevant facts and
circumstances." Conward, 171 F.3d at 20. As we have said,
[t]he test is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated. Much as in the lawyer's art of distinguishing cases, the "relevant aspects" are those factual elements which determine whether reasoned analogy supports, or demands, a like result. Exact correlation is neither likely nor necessary, but the cases must be fair congeners. In other words, apples should be compared with apples.
Dartmouth Rev. v. Dartmouth Coll., 889 F.2d 13, 19 (1st Cir. 1989),
overruled on other grounds by Educadores Puertorriqueños En Acción
v. Hernández, 367 F.3d 61, 64, 66-67 (1st Cir. 2004).
The district court determined that the comparators
offered by Diaz were not sufficiently similar to show pretext
- 16 - because the comparator incidents did not involve officers found
both to have committed violent assaults and to have dissembled
during the ensuing investigations. See Diaz v. City of Somerville,
583 F. Supp. 3d 296, 312 (D. Mass. 2022). Diaz assigns error and
points to several comparator-officers who committed violent
assaults yet were not discharged. He maintains, in essence, that
comparator cases showing leniency for violent assaults, without
any ensuing dishonesty, are sufficiently similar to demonstrate
pretext. So, too, he maintains (at least by fair implication)
that comparator cases depicting instances of untruthfulness,
without any attendant violence, are adequate to carry his burden.
We do not agree. The egregiousness of Diaz's conduct
and the City's stated reasons for his dismissal hinged on the
combined force of both his assaultive conduct and his subsequent
prevarication.6 In other words, it was the combustible mixture of
unrestrained aggression and unmitigated mendacity that separated
this case from Diaz's proffered comparators. Removing an important
ingredient of that mixture (say, untruthfulness about what
happened or the presence of violence) renders any proposed
comparison inappropriate. For a comparison to be apt, "apples
6Although Diaz suggests in passing that he was not untruthful, he fails either to develop that argument in his appellate briefing or to explain why we should take his violence- only cases as adequate comparators in light of that argument. We therefore deem any such challenge waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
- 17 - should be compared with apples." Dartmouth Rev., 889 F.2d at 19.
Diaz, however, invites us to compare apples with apricots.
Consequently, the district court did not err in determining that
proposed comparators lacking both the elements of aggression and
mendacity were not similarly situated and, thus, that Diaz's
proposed comparators were insufficient to ground a finding that
the City's reasons for terminating him were pretextual.7
The absence of any evidence of pretext is fatal to Diaz's
Title VII claim. See Conward, 171 F.3d at 22. Accordingly, we
uphold the district court's entry of summary judgment on that
claim.
III
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
7 The district court did address one comparator in which an officer was found both to have committed an assault and to have been untruthful. The court determined, though, that this incident was an inapt comparator because the officer did not "lie[] about the assault itself." Diaz, 583 F. Supp. 3d at 312 n.39. On appeal, Diaz neither mentions this incident in his brief nor challenges the district court's determination. We therefore deem any such challenge waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
- 18 -