Neece v. City of Chicopee

106 F.4th 83

• Court: Court of Appeals for the First Circuit
• Decided: June 27, 2024
• Docket: 23-1227
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 23-1227

JEFFREY A. NEECE,

Plaintiff, Appellant,

v.

CITY OF CHICOPEE,

Defendant, Appellee,

SHARYN RILEY,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark G. Mastroianni, U.S. District Judge]

Before

Montecalvo, Lipez, and Rikelman, Circuit Judges.

Emily Smith-Lee, with whom SLN Law, LLC was on brief, for appellant. Meredith G. Fierro, with whom CEK Boston, P.C. was on brief, for appellee.

June 27, 2024 RIKELMAN, Circuit Judge. Jeffrey Neece sued the City of

Chicopee after the mayor decided not to renew Neece's employment

contract. During a jury trial, the parties presented very

different accounts of why Neece lost his job. The mayor claimed

that Neece was not productive or responsive to his colleagues and

had alienated key stakeholders. Neece claimed that the mayor

retaliated against him because Neece's testimony in a

gender-discrimination case against the city undermined the city's

defense. After hearing from both Neece and the mayor, as well as

a dozen other witnesses, the jury rejected Neece's retaliation

claims. Neece now argues that he is entitled to a new trial

because the district court limited the evidence he could present

about what he views as a key event: a closed-door meeting between

the city's attorneys and the city council about the merits of the

gender-discrimination case and the impact of Neece's testimony.

We conclude that the district court did not abuse its discretion

in limiting evidence about this meeting, which the mayor did not

attend, after Neece was unable to show that the mayor ever learned

about the details of the meeting. We therefore uphold the jury's

verdict and affirm.

I. BACKGROUND

A. Relevant Facts

Neece's appeal focuses on "a number of the district

court's evidentiary rulings," so we "recite the facts in a

- 2 - 'balanced' manner in which we 'objectively view the evidence of

record.'" United States v. Amador-Huggins, 799 F.3d 124, 127 (1st

Cir. 2015) (quoting United States v. Burgos–Montes, 786 F.3d 92,

99 (1st Cir. 2015)).

1. Neece's Role in City Government

In 2013, the then-mayor of Chicopee, Michael

Bissonnette, appointed Neece as the superintendent of the

Department of Public Works ("DPW"). Under his employment contract,

Neece was appointed to a five-year term from June 17, 2013, to

June 30, 2018. In early 2014, Richard Kos took office as mayor,

after defeating Bissonnette in the November election. Kos ("the

mayor") then became Neece's direct supervisor for the rest of

Neece's contract with the city.

As the superintendent of DPW, Neece was responsible for

supervising nine departments that work to improve and maintain the

city's infrastructure, including the highway, parks, water, and

sanitation departments, as well as the Central Maintenance Garage.

The garage, which figures prominently in this case, repairs city

vehicles (and should not be confused with a parking garage).

At trial, the parties presented competing narratives

about Neece's job performance. For instance, the mayor testified

that he initially had a favorable impression of Neece, but, during

his first year in office, he began to "los[e] faith in [Neece's]

decision-making." He attributed that change to several key events,

- 3 - including Neece's recommendation that the city purchase an $80,000

asphalt recycler to fix potholes. After Neece advocated for the

equipment, the mayor expended political capital to convince the

city council to approve the purchase, only to have Neece discover

later that the recycler would not work properly. The mayor was

disappointed, not only because he felt Neece could have discovered

that fact earlier, before the mayor made the pitch to the city

council, but also because Neece did not inform him that the

equipment was never purchased; the mayor learned of that fact only

months later, when he happened to ask Neece how the recycler was

working. The mayor also discussed Neece's delay in providing

essential information for a state grant application that had to be

submitted in person in Boston, which caused the application to be

delivered at the last minute. By contrast, Neece explained that,

although the city council had appropriated funding for the

recycler, he realized the problem with the equipment before any

city money was used to purchase it, and the mayor never expressed

any concerns regarding this incident at the time. Neece also

testified that, while he was DPW superintendent, the city did not

miss out on any grant opportunities.

Other city employees who testified at trial corroborated

the mayor's account, though, again, Neece offered a different

version of events. The employees stated that Neece was often

difficult to reach, did not respond to questions or concerns raised

- 4 - in emails, and handled employee discipline inappropriately. For

example, they recounted that Neece disciplined several

water-department employees for not plowing snow during a snowstorm

even though they were not obligated to do so and two of the

employees were not even scheduled to work the day of the storm. A

union then filed grievances against the city on behalf of some of

those employees, leading the city to retract the discipline. Also,

one veteran DPW employee testified that working under Neece's

supervision was so challenging that he opted to retire early. Yet,

Neece, for his part, described the many hours he dedicated to the

nine departments under his supervision and asserted that human

resources and the city's legal department reviewed the

disciplinary letters he sent to the water-department employees.

2. The Huber Case and Neece's Testimony

Neece's retaliation claims in this case hinge on his

testimony in a lawsuit against the city ("the Huber case"), which

challenged a hiring decision at the Central Maintenance Garage.

In December 2015, the city posted a job opening for a motor

equipment repair person at the garage. One woman, Nicholle Huber,

applied for the job and was rated as the top candidate by those

who interviewed her. The job posting stated that the position

would require the employee to lift and/or move up to 100 pounds.

But during Huber's interview, Neece, who believed he had final say

on all hiring decisions within DPW departments, told Huber that

- 5 - she did not need to meet the lifting requirement. And yet, Huber's

job offer was rescinded when she could not lift 100 pounds during

a pre-employment physical examination. Huber sued the city,

alleging that it had discriminated against her on the basis of

gender during the hiring process.

In October 2017, Neece provided deposition testimony in

Huber's case. He testified that, the day after Huber was

interviewed, he and his assistant spoke to Alfred Ryczek, the head

of the Central Maintenance Garage. According to Neece, Ryczek

told them that he was afraid of a sexual-harassment suit if a woman

were hired to work at the garage, that he was concerned about what

the city would do if Huber became pregnant, and that men in the

garage already were making derogatory jokes about how they would

behave in Huber's presence.1 In addition, Neece testified that he

informed the director of human resources, as well as the city

solicitor, that if the city did not hire Huber even though she was

the best qualified candidate, it may face a gender-discrimination

lawsuit and would "basically be defenseless" because of Ryczek's

comments and Huber's hiring process. Neece also testified that he

told the mayor what Ryczek had said about hiring a woman to work

in the garage. Emails between Neece and his assistant documenting

1 Ryczek admitted he told Neece's assistant he was concerned about what he would do if Huber became pregnant "[b]ecause there was no light duty in the garage," but he denied making any of the other comments Neece described. - 6 - Ryczek's comments were exchanged as part of discovery in the case.

3. The City Council Executive Session

Following mediation in the Huber case, Marshall

Moriarty, the city solicitor, and Mark Albano, the city's lead

trial attorney for the case, met with the mayor and recommended

that the city settle the lawsuit for $140,000. The mayor accepted

the recommendation but needed the city council to approve the

settlement and appropriate the funds.

So, pursuant to the mayor's order, the city council held

an executive session -- a non-public meeting -- on April 24, 2018,

to consider whether to approve the settlement. The mayor was not

present at the executive session.

Neece's evidentiary challenges on appeal center on the

details of this meeting. There, Albano discussed with city council

members the merits of the Huber case, why he believed it was in

the city's best interest to settle, and Neece's role in the case.

Albano explained that the lawsuit was "one of the better, if not

the best employment discrimination cases [he had] ever seen"

because Huber had "direct evidence of discrimination." That

evidence, he stated, came from Neece and Neece's assistant, who

"indicated that Al [Ryczek] said to them[:] [W]e don't want women

in the garage. . . . I'm deathly afraid of having women there. I

know it's discriminatory[,] but it is what it is."

According to Albano, Neece had testified in his

- 7 - deposition that he considered Ryczek's statements to be

discriminatory and Huber to have been treated unfairly because

Neece told her that being able to lift 100 pounds was not important

for the job. Albano also noted that "[g]enerally, the Chicopee

employees, the director of the department, [and] the assistant

director are [the city's] best witnesses," but "[i]n this case

they're [the city's] nightmare witnesses." Although those

witnesses "swore to tell the truth and must believe they're telling

the truth," he explained, "it's a truth that is very unpalatable

from the [c]ity's point of view in terms of prevailing in this

case." Because the potential damages and attorneys' fees award

could far exceed the $140,000 settlement amount, Albano

recommended that the city council approve the settlement. In doing

so, he stated that "[i]t's very unpalatable in the mayor's office

and in the law department to be paying this amount of money, but

the case represents a series of missteps and

mistakes . . . that . . . have mushroomed . . . into a big

problem."

Following Albano's presentation, several city council

members expressed their frustration with Huber's hiring process

and the department-head infighting it reflected. One city council

member told Albano: "I hope that you'll take the message back to

the [m]ayor that we need some in service training, so that they

get on the same page when hiring people.

- 8 - That . . . nobody . . . should be undercutting the other guy,

because it just means we're gonna lose if they go to court."

Similarly, city council members were displeased that Neece and

Ryczek could not "work together" with the human resources

department to determine whether the lifting requirement could be

waived. One member, Joel McAuliffe, requested "information from

the [m]ayor and from the law department to at least let [the city

council] know what has been done to address the issues that allowed

this to transpire," especially because those involved in the hiring

process were "still in leadership positions" in city government.

Another asked whether Neece had been disciplined for "[t]elling

someone something that wasn't true." Albano advised not taking

disciplinary action while the case was pending to avoid the

appearance of retribution or retaliation.

In an open session held one week later, the city council

voted to appropriate $140,000 to settle the Huber case.

4. Non-Renewal of Neece's Contract

Meanwhile, in March 2018, after Neece's deposition

testimony in the Huber case but before the city attorneys advised

the mayor to accept the proposed settlement, the mayor issued a

written warning to Neece about his job performance. The warning

summarized several alleged deficits with Neece's work, identified

corrective actions, and requested that Neece submit weekly reports

on his projects. This was the first time the mayor documented any

- 9 - perceived concerns with Neece's performance. The mayor testified

at trial that he was prompted to issue the March warning because

Neece had recently sent an email to members of the parks and

recreation commission, who are volunteers, insisting they hire his

preferred candidate to be the superintendent of the parks

department. The mayor believed the email "verged on bullying."

The mayor went on to testify that, when he reviewed Neece's weekly

reports, he observed that the same projects were reported each

week with minimal progress, leaving him "disillusioned."

According to Neece, however, some of the projects were ones he was

already working on, and others were long-term tasks that would

take time to complete.

In April 2018, two months before Neece's contract was

set to expire, the mayor informed Neece that he planned to

advertise the position of DPW superintendent and solicit new

candidates, but that Neece could still apply for the position. On

June 28, 2018, the mayor told Neece he was not renewing Neece's

contract.

B. Legal Proceedings

Neece sued the city in 2019, alleging that the mayor

declined to renew his contract as retaliation for the deposition

testimony he gave in the Huber case, in violation of Title VII of

the Civil Rights Act of 1964 and the Massachusetts Whistleblower

Act.

- 10 - Both parties filed pre-trial motions related to the city

council executive session. A few weeks before the first scheduled

trial date, Neece filed a motion seeking an adverse inference

instruction, or the exclusion of certain evidence, based on the

city's failure to record or otherwise memorialize the executive

session. In response, the city revealed that an audio recording

of the executive session did exist; however, it then filed a

separate motion to exclude any evidence regarding the meeting. It

argued that, at the meeting, the city's attorneys were providing

their legal assessment to the city council about a pending lawsuit

against the city, so attorney-client privilege and the attorney

work-product doctrine protected the recording.

The district court denied the city's motion. It

determined that (1) during discovery the city waived the

attorney-client privilege that would otherwise apply to the

executive session by allowing two deposition witnesses to answer

general questions about the discussions at the meeting, and (2) the

work-product doctrine did not apply. Further, the district court

explained, even if attorney-client privilege protected the

communications at the executive session, the city still would have

to produce the recording for the following reason: "Whether

[Neece's] role in the Huber litigation was discussed at the

4/24/2018 executive session is central to his claim of pretext.

Two witnesses present at the meeting have offered conflicting

- 11 - testimony about whether [Neece's] role was discussed, and the

recording offers the only means to resolve the discrepancy." The

court's order addressed only whether the recording had to be

provided to Neece as part of the pre-trial discovery process. The

court stated that it would decide later if the recording could be

admitted as evidence during the trial itself.

The court then ordered the city to produce the recording

and a transcript. But it "recognize[d] the sensitive nature of

some of the material in the recording and the possibility that

portions would be inadmissible at trial for reasons including

likelihood of confusion or unfair prejudice." Accordingly, the

court directed Neece to seek rulings on the admissibility of

portions of the recording by filing another pre-trial motion, which

Neece did. Ultimately, however, the court denied Neece's motion,

stating that it would rule on admissibility during trial.

The case proceeded to a jury trial, which took place

over thirteen days in January 2023. The city's central defense

was that the mayor did not renew Neece's contract because he was

dissatisfied with Neece's job performance, not because Neece's

deposition testimony supported Huber's gender-discrimination

claim. To that end, the city called seven employees over the

course of three days, including Ryczek, the city's director of

human resources, the mayor's former chief of staff, the chair of

the parks commission, two veteran DPW employees, and Neece's

- 12 - replacement, all of whom had interacted with Neece and testified

that they alerted the mayor to his unresponsiveness and lack of

productivity. In turn, to prove his retaliation claims, Neece

testified on his own behalf and called as witnesses Huber, three

city council members, city attorneys Albano and Moriarty, his

former assistant, and the mayor.

During the trial, the parties debated the admissibility

of the executive session discussions. On direct examination, Neece

questioned members of the city government about statements made at

the meeting, and he later attempted to introduce portions of the

transcript. The district court limited some of the witness

testimony and excluded the transcript. The court's rationale was

that the mayor, not the city council, decided not to renew Neece's

contract. And because the parties agreed that the mayor was not

at the meeting, Neece had to "connect some dots" between the

meeting and the mayor. Specifically, he had to demonstrate that

the mayor "had th[e] information" conveyed at the executive

session, either because he knew about it before the meeting or

learned about it afterwards, for it to be relevant at trial. But,

despite repeated attempts, the court determined that Neece never

connected those dots. When Neece's witnesses were asked whether

they told the mayor about what was said at the executive session,

they all said no. Critically, Neece also asked the mayor directly

whether, before he decided not to renew Neece's contract, he

- 13 - learned of questions or concerns that city council members raised

in the executive session. The mayor answered that he did not.

Thus, the district court ruled that testimony from the

city attorneys and city council members about specific statements

they made at the meeting, as well as the meeting transcript, was

not relevant to Neece's retaliation claims. Further, it determined

that certain questions about Albano's presentation to the city

council were cumulative, would only waste time, and would confuse

the jury, essentially by creating a mini-trial of the Huber case.

Finally, the court precluded testimony by the mayor recounting

Albano's advice to him about the Huber settlement, finding those

conversations protected by attorney-client privilege that the city

had not waived.

The jury returned a defense verdict. On the Title VII

claim, it found that Neece had proven that he engaged in protected

activity and experienced an adverse employment action but failed

to establish a causal link between the mayor's non-renewal of his

contract and his role in the Huber case. On the Massachusetts

whistleblower claim, the jury found that Neece had proven that he

disclosed and objected to an activity he reasonably believed

violated the law but failed to demonstrate that the city retaliated

against him because he did so. This timely appeal followed.

II. STANDARD OF REVIEW

We review Neece's preserved objections to the district

- 14 - court's evidentiary rulings for abuse of discretion. See United

States v. Rathbun, 98 F.4th 40, 47 (1st Cir. 2024) (examining

admissibility of witness testimony under this standard); Cavallaro

v. United States, 284 F.3d 236, 245 (1st Cir. 2002) (explaining

that abuse-of-discretion standard applies to evidentiary

determinations concerning a claim of privilege). "An abuse of

discretion occurs 'when a material factor deserving significant

weight is ignored, when an improper factor is relied upon, or when

all proper and no improper factors are assessed, but the court

makes a serious mistake in weighing them,'" including by making an

error of law. Lech v. von Goeler, 92 F.4th 56, 63-64 (1st Cir.

2024) (quoting Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161

F.3d 77, 83 (1st Cir. 1998)).

Even if we determine that a district court's evidentiary

ruling was erroneous, however, we will not disturb the jury's

verdict if the error was harmless, that is, "if it is highly

probable that the error did not affect the outcome of the case."

McDonough v. City of Quincy, 452 F.3d 8, 19–20 (1st Cir. 2006).

III. DISCUSSION

Neece seeks a new trial on the ground that the district

court abused its discretion by limiting evidence about the

executive session. The court limited this evidence on various

grounds, concluding that some was not relevant; some was cumulative

or likely to waste time or confuse the issues; and some was

- 15 - protected by attorney-client privilege. We address each ground in

turn.

Ultimately, we determine that the district court did not

abuse its discretion in any of these rulings. Neece's own

witnesses undercut his claim that the mayor learned about what

city council members said at the meeting. Thus, the court did not

abuse its discretion in finding that those statements were not

relevant to the mayor's state of mind or alleged retaliatory

motive. The city solicitor also testified that Albano recommended

settling the Huber case because he thought it had merit, and the

record backs up the district court's view that further questions

on this topic would waste time and distract from the main

retaliation issue in this case. And, importantly, Neece was able

to ask the mayor directly about his knowledge of the topics

discussed at the executive session: the Huber settlement, Neece's

role in that case, and concerns city council members raised at the

meeting. Finally, the facts supported the court's ruling that

certain communications between Albano and the mayor were

privileged.

A. Relevance

We start with the district court's exclusion of evidence

on relevance grounds. Under Federal Rule of Evidence 401, evidence

is relevant if "it has any tendency to make a fact" that is "of

consequence in determining the action" "more or less probable than

- 16 - it would be without the evidence." Fed. R. Evid. 401. We have

explained that, "to be relevant, the evidence need not definitively

resolve a key issue in the case" but rather "need only move the

inquiry forward to some degree." Rathbun, 98 F.4th at 51. "Given

that relevancy is a quintessential judgment call, we 'give trial

judges considerable leeway in deciding whether the contested

evidence satisfies'" the relevance standard. Id. (quoting

Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 76 (1st Cir. 2010)).

Relevance is "determined on a case-by-case basis, in

light of both the particular factual context and the applicable

law." Daumont-Colón v. Cooperativa de Ahorro y Crédito de Caguas,

982 F.3d 20, 28 (1st Cir. 2020). Thus, we begin with the elements

that Neece needed to prove to succeed on his retaliation claims

under federal and state law.

Under Title VII, it is illegal for an employer to

retaliate against an employee for "oppos[ing] any practice made an

unlawful employment practice by [Title VII itself]." 42 U.S.C.

§ 2000e–3(a). To establish a prima facie case of retaliation, a

plaintiff must prove that (1) they "engaged in protected activity

under Title VII," (2) they "suffered an adverse employment

action," and (3) "the adverse employment action was causally

connected to the protected activity." Collazo v. Bristol–Myers

Squibb Mfg., Inc., 617 F.3d 39, 46 (1st Cir. 2010). To establish

participation in a protected activity, "the plaintiff need not

- 17 - show that the conditions [they] opposed 'actually amounted to a

violation of Title VII.'" Id. at 48 (quoting Fantini v. Salem

State Coll., 557 F.3d 22, 32 (1st Cir. 2009)). Rather, they must

show only that they had "a good faith, reasonable belief that the

underlying challenged actions" amounted to discrimination. Id.

(quoting Fantini, 557 F.3d at 32). If "the plaintiff establishes

a prima facie case of retaliation, the burden shifts to the

defendant to articulate a legitimate, non-retaliatory reason for

its employment decision." Id. at 46. If the defendant does so,

"the burden shifts back to [the plaintiff] to show that the

proffered legitimate reason is in fact a pretext and that the job

action was the result of the defendant's retaliatory animus." Id.

(alteration in original) (citation omitted).

The Massachusetts Whistleblower Act likewise prohibits

an employer from retaliating against an employee who

"[d]iscloses . . . to a supervisor or to a public body" or

"[o]bjects to, or refuses to participate in an[] activity, policy

or practice which the employee reasonably believes is in violation

of a law." Mass. Gen. Laws ch. 149, § 185(b)(1), (3). To prevail

on a claim under the statute, a plaintiff must show that they

"engaged in protected activity and that [their] participation in

that activity played a substantial or motivating part in the

retaliatory action." Welch v. Ciampa, 542 F.3d 927, 943 (1st Cir.

2008).

- 18 - Thus, the critical issue in this case was whether the

mayor -- the person who decided not to renew Neece's contract --

acted with a retaliatory motive when he did so. Accordingly, as

the district court emphasized, for the contents of the executive

session to be relevant, Neece had to forge some link between what

took place at the meeting and the mayor.

We see no error in the district court's reasoning that

what was said at the meeting was relevant only if the mayor knew

about it. See Theidon v. Harvard Univ., 948 F.3d 477, 508 & n.44

(1st Cir. 2020) (finding that emails by "one of many voices in a

chorus cautioning [university president] against promoting" the

plaintiff did not support an inference of retaliation given that

the university president, not the writer of the emails, "had the

final say" on the plaintiff's promotion); Vélez v. Thermo King de

P.R., Inc., 585 F.3d 441, 452 (1st Cir. 2009) ("[I]n assessing

pretext, a court's focus must be on the perception of the

decisionmaker."). After all, the parties did not dispute that the

mayor, as opposed to the city council as a body or its individual

members, was the one who opted not to renew the contract. And

Neece attempted to offer the conversations that occurred at the

executive session to prove the mayor's alleged retaliatory motive,

to the extent the mayor was "influenced" by the discussions at the

meeting.

Against this backdrop, the district court did not abuse

- 19 - its discretion in determining that certain testimony about

statements at the meeting and portions of the meeting transcript

were not relevant to the mayor's motive for ending Neece's

employment. That is because, as we proceed to explain, the

evidence did not reasonably support the inference that the mayor

knew about what was said at the meeting.

According to Neece, he should have been able to introduce

at trial statements by city council members calling for his

discipline -- calls that, he points out, "were requested to be

conveyed to the [m]ayor." The problem, however, is that the mayor

himself denied ever hearing about these concerns or demands.2

Further, Neece's own witnesses who were present at the meeting

likewise denied talking to the mayor about what was said there.

City council members McAuliffe and Frank Laflamme testified that

they did not speak to the mayor about the executive session. And

Neece contends that city council members called "for there 2

to be some kind of discipline or consequences for [him] as a result of his involvement in [the Huber] case," that is, his deposition testimony that was unfavorable to the city. By contrast, the city maintains that city council members asked whether Neece would face repercussions for erroneously telling Huber that she did not need to meet the 100-pound lifting requirement. The transcript plausibly supports the city's interpretation, and, to the extent the district court relied on that same view of the transcript, it did not abuse its discretion. See Clukey v. Town of Camden, 894 F.3d 25, 34 (1st Cir. 2018) (explaining that, under the abuse-of-discretion standard, we will leave a district court's ruling undisturbed if we are not "left with a 'definite and firm conviction that the court below committed a clear error of judgment'" (citation omitted)). - 20 - the only remaining city-council-member witness stated that he did

not know if "what went on at that meeting" was communicated back

to the mayor. Neece also asked Moriarty and Albano whether they

reported to the mayor what happened at the meeting or knew if

anyone else did. Both stated that, in the normal course, someone

would update the mayor about the meeting but that they did not

update him and had no knowledge of anyone else doing so either.

For similar reasons, the district court did not abuse

its discretion in excluding portions of the transcript of the

executive session, which Neece tried to introduce before resting

his case. The court ruled that the transcript was inadmissible

because it was not relevant, stating that Neece "had ample

opportunity to question the relevant witnesses . . . about this

information [from the executive session] being made known to [the

mayor], who was the decision-maker[,] . . . and it just wasn't

there." The record supports the court's assessment. As the court

observed, by the time Neece sought to introduce the transcript, he

had already asked the mayor himself, city council members, and the

city attorneys about whether the discussions at the meeting ever

got back to the mayor. Not a single witness could confirm that

they did.

Further, to the extent Neece sought to prove that his

deposition testimony and the Huber settlement were "unpalatable"

to the mayor or that his deposition testimony provided direct

- 21 - evidence of discrimination by the city, he was able to ask the

mayor directly about those topics. Indeed, in response to Neece's

questioning, the mayor confirmed that he knew that Neece's

testimony was unfavorable to the city, that Neece had recounted

Ryczek's concerns about hiring a woman, and that Neece had

documented his conversation with Moriarty and the human resources

director about the city's vulnerability to a gender-discrimination

lawsuit. Along similar lines, Neece elicited testimony from the

mayor that a $140,000 settlement was a "sizeable" expense for the

city. As the city notes, Neece could have followed up with leading

questions suggesting that the settlement was "unpalatable" but did

not do so.

In light of these multiple lines of inquiry by Neece

over several days of trial, the record simply does not support

Neece's position that it was the district court's relevancy rulings

that prohibited him from connecting the dots between the mayor and

the executive session. "To be sure, Federal Rule of Evidence 401's

standard for relevancy is low . . . ." Ward v. Schaefer, 91 F.4th

538, 544 (1st Cir. 2024). But even against this permissive

standard, the court did not abuse its discretion when it found

that the city council members' statements at the executive session

did not tend to make it more likely than it otherwise would be

that the mayor retaliated against Neece because of his role in the

Huber case.

- 22 - Next, we turn to the rest of the challenged evidentiary

rulings.

B. Evidence That Was Cumulative or Likely to Waste Time or Confuse the Issues

The district court also excluded certain testimony from

Albano on the ground that it was cumulative and likely to waste

time and confuse the issues.

Federal Rule of Evidence 403 permits the district court

to "exclude relevant evidence if its probative value is

substantially outweighed by a danger of . . . confusing the

issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence." Fed. R. Evid. 403.

Thus, even if evidence helps inform disputed issues, the district

court "can find [its] 'untoward effects' . . . to be so weighty

that the evidence should be excluded." Galarneau v. Merrill Lynch,

Pierce, Fenner & Smith, Inc., 504 F.3d 189, 205 (1st Cir. 2007)

(quoting Faigin v. Kelly, 184 F.3d 67, 80 (1st Cir. 1999)).

In reviewing the district court's evidentiary rulings

under Rule 403, we keep in mind that "[t]he balancing act that the

rule demands 'is a quintessentially fact-sensitive enterprise, and

the trial judge is in the best position to make such fact[-]bound

assessments.'" Rathbun, 98 F.4th at 51 (first alteration in

original) (quoting United States v. Mare, 668 F.3d 35, 39 (1st

Cir. 2012)). Thus, we have declined, "from the vista of a cold

- 23 - appellate record, [to] reverse a district court's on-the-spot

judgment concerning the relative weighing of probative value and

unfair effect" absent "extraordinarily compelling circumstances."

Ward, 91 F.4th at 545 (quoting Freeman v. Package Mach. Co., 865

F.2d 1331, 1340 (1st Cir. 1988)). We see no such circumstances

here, given the way the trial played out.

We evaluate the district court's rulings in the order in

which they occurred at trial. First, during Moriarty's direct

examination, Neece sought to introduce a recording of Albano's

presentation to the city council. In particular, Neece wanted to

introduce Albano's recorded statements that his deposition

testimony and the $140,000 settlement were "unpalatable," the

Huber case was one of "the best employment discrimination cases"

Albano had seen because Neece provided Huber with "direct evidence

of discrimination," and, consequently, Neece was a "nightmare

witness[]" for the city. After Moriarty testified that he and

Albano had met with the city council to discuss the Huber

settlement at the mayor's direction, and that he had listened to

the recording of the meeting, Neece moved to admit the recording.

The court ruled that Neece had not established an adequate

foundation for doing so, especially when Neece already had been

allowed to question Moriarty about Albano's assessment of the Huber

case and demonstrate that Albano thought Huber had a strong claim.

The court then asked Neece why he needed to admit the recording of

- 24 - Albano's statements, and Neece responded that the city was "still

fighting the merits of the Huber case."

We see no abuse of discretion in the district court's

finding that Moriarty's testimony about Albano's specific

statements would have been cumulative and that excluding those

statements did not prejudice Neece. See Elwood v. Pina, 815 F.2d

173, 178 (1st Cir. 1987) (explaining district court may properly

exclude evidence when it is "repetitive" and the "small increment

of probability it adds may not warrant the time spent in

introducing it" (citation omitted)). As the court noted, Neece

needed to prove only that he had a reasonable belief that the city

had discriminated against Huber to establish his own retaliation

claims. Thus, Neece "[didn't] have to retry the Huber case here."

And, as the court observed, Moriarty had confirmed that (1) Albano

thought Huber's case was meritorious, and (2) Albano recommended

the city settle the case as a result. For that reason, as the

court explained, Neece already had the opportunity to rebut the

city's account that the Huber case lacked merit.

Second, during Albano's direct examination, Neece asked

Albano whether he (1) concluded that the evidence in the Huber

case was harmful to the city and (2) told the mayor that the

evidence was harmful. The district court sustained the city's

objections to those questions, finding that they were cumulative

and wasted time and noting that it was "losing track about what

- 25 - case [Neece was] trying to prove here."

In the context of Albano's overall testimony, this

ruling was within the district court's discretion. We "must

'evaluate the trial court's decision from its perspective when it

had to rule and not indulge in review by hindsight.'" United

States v. Varoudakis, 233 F.3d 113, 124 (1st Cir. 2000) (quoting

Old Chief v. United States, 519 U.S. 172, 183 n.6 (1997)). Even

if what Albano had told the mayor were relevant to the mayor's

motive, by the time the city lodged its objections, (1) Neece

already had established that Albano kept the mayor informed about

depositions in the Huber case, (2) Albano already had described

Neece's deposition testimony, and (3) it was obvious that Neece's

testimony undermined the city's defense. Indeed, in response to

a series of questions, Albano explained that it was Neece who

testified to Ryczek's statements expressing concern about hiring

a woman in the Central Maintenance Garage, asking what would happen

if a female employee became pregnant, and indicating fear of a

sexual-harassment suit if a woman were hired to work at the garage.

Albano also acknowledged that Neece documented Ryczek's

statements. Further, the court reasonably concluded that there

was a real potential for confusing the issues because the

proceeding risked becoming a mini-trial of the Huber case. See

Williams v. Drake, 146 F.3d 44, 48 (1st Cir. 1998) (finding no

abuse of discretion in excluding evidence when its "potential for

- 26 - muddling the issues was real" and it "could well have created an

unwarranted sideshow, drawing attention from the main event").

We also see no harm from the district court's decision

to limit Albano's testimony. Immediately after its ruling, the

court itself asked Albano whether he told the mayor the names of

the people -- i.e., Neece -- who gave deposition testimony in the

Huber case; Albano indicated that he was not sure. What's more,

as we've outlined above, Neece was able to ask the mayor directly

whether the mayor knew that Neece's deposition undermined the

city's defense.

C. Attorney-Client Privilege

We now address Neece's final evidentiary claim. At

trial, the district court precluded the mayor's testimony about

the specific advice Albano gave him regarding the benefits of

settling the Huber case, finding that attorney-client privilege

protected those conversations. Neece contends that the district

court erred in determining both that a privilege between the mayor

and Albano existed and that the city had not waived the privilege.

We begin with the foundational legal principles.3

3 Federal Rule of Evidence 501 provides that federal common law governs a claim of privilege, "[b]ut in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision." Fed. R. Evid. 501. Neece seems to presume that, in this federal-question case in which the district court exercised supplemental jurisdiction over his Massachusetts-law retaliation claim, federal privilege law

- 27 - Attorney-client privilege "safeguard[s] communications between

attorney and client, but protects only those communications that

are confidential and are made for the purpose of seeking or

receiving legal advice." Blattman v. Scaramellino, 891 F.3d 1, 4

(1st Cir. 2018) (alteration in original) (internal quotation marks

omitted) (quoting Lluberes v. Uncommon Prods., LLC, 663 F.3d 6,

23-24 (1st Cir. 2011)). "That protection ceases, or is often said

to be 'waived,' when otherwise privileged communications are

disclosed to a third party," because "such disclosure 'destroys

the confidentiality upon which the privilege is premised.'"

Lluberes, 663 F.3d at 24 (citations omitted). The party that

invokes the privilege, here the city, bears the burden of showing

that (1) it applies, and (2) it has not been waived. Id.

Turning to the facts here: At trial, Neece sought to

prove the mayor's retaliatory motive by asking the mayor whether,

as part of Albano's recommendation on the Huber settlement, Albano

told him that Neece's testimony had been unfavorable to the city.

The city objected, stating that Albano's advice to the mayor on

the settlement was a privileged attorney-client communication.

The district court agreed, reasoning that Albano and the mayor

applies. The city does not directly challenge that presumption, and neither party argues that federal and Massachusetts law differ on the privilege issues presented here. So, we also apply federal privilege law. See Lluberes v. Uncommon Prods., LLC, 663 F.3d 6, 23 (1st Cir. 2011) (applying federal privilege law when parties implicitly indicated it controlled). - 28 - were "meeting privately for [the mayor] to be [given] information

that would affect his recommendation [to the city council] on

the . . . Huber settlement."

We conclude that the district court did not err in this

determination. "The objectives of the attorney-client privilege

apply to governmental clients." United States v. Jicarilla Apache

Nation, 564 U.S. 162, 169 (2011). In particular, "[t]he privilege

aids government entities and employees in obtaining legal advice

founded on a complete and accurate factual picture." Id. at 169-70

(quoting Restatement (Third) of the Law Governing Lawyers § 74

cmt. b (Am. L. Inst. 1998)). Thus, "[u]nless applicable law

provides otherwise, the Government may invoke the attorney-client

privilege in civil litigation to protect confidential

communications between Government officials and Government

attorneys." Id. at 170. The mayor certainly would be among the

city employees covered by the city's privilege because he was an

agent of the city (its chief executive) receiving advice from a

city attorney about why the city should settle a pending lawsuit

against it, all for the purpose of deciding whether to direct the

city council to consider the settlement. See In re Cnty. of Erie,

473 F.3d 413, 422-23 (2d Cir. 2007) (holding that attorney-client

privilege applied to emails sent from a county attorney to county

officials responsible for implementing correctional policies when

emails conveyed the attorney's assessment of and guidance on

- 29 - complying with legal requirements); Restatement (Third) of the Law

Governing Lawyers §§ 73-74 (Am. L. Inst. 1998) (explaining that

attorney-client privilege generally extends to confidential

communications that occur between a government lawyer and

government employees and that are made for the purpose of

"establish[ing] and maintain[ing] legal positions").

But Neece argues that, for two reasons, the city waived

any privilege that would apply to the mayor's conversations with

Albano about the settlement. He claims that the district court

previously found that the city had intentionally waived any

privilege that attached to the discussions at the executive session

when the city allowed Moriarty and McAuliffe to testify about those

discussions in their depositions, and that this waiver extended to

Albano's conversations with the mayor. He also contends that

Federal Rule of Evidence 502, which governs waiver of privileged

communications, applies here.

The district court rejected these arguments, determining

that two distinct claims of privilege existed: first, a privilege

that attached to conversations among the city attorneys and city

council members at the executive session, and second, "a separate

attorney-client privilege between [the mayor] and Attorney Albano

regarding their private conversations." The court analyzed the

privilege claim for each set of conversations separately.

Neither the district court's rulings about the executive

- 30 - session nor Rule 502 support a finding of waiver for the mayor's

conversations with Albano. As for its earlier orders determining

that the audio recording of the executive session was discoverable,

the district court found that the city waived the attorney-client

privilege that attached to the executive session "by allowing two

different witnesses to answer questions about the discussions

during the meeting," without "limitations as to the scope of

questions that could be posed to [them] about" that meeting. The

court's rulings did not address the private conversations between

Albano and the mayor, which occurred in advance of the executive

session and represent entirely separate communications.

Nor does Rule 502 apply to the circumstances here. That

rule provides that when a party waives attorney-client privilege

through a disclosure in a federal proceeding, "the waiver extends

to an undisclosed communication or information in [the same]

proceeding only if" three conditions are met: (1) "the waiver is

intentional"; (2) "the disclosed and undisclosed communications or

information concern the same subject matter"; and (3) "they ought

in fairness to be considered together." Fed. R. Evid. 502(a). We

have explained that the "subject-matter waiver" provided for in

the rule "is generally reserved for 'situations in which a party

intentionally puts protected information into the litigation in a

selective, misleading and unfair manner.'" Salmon v. Lang, 57

F.4th 296, 326-27 (1st Cir. 2022) (quoting Fed. R. Evid. 502(a)

- 31 - advisory committee notes). "Such waivers are almost invariably

premised on fairness concerns." In re Keeper of Recs. (Grand Jury

Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 24 (1st Cir. 2003).

Those concerns arise when a party "partially disclose[s]

privileged communications or affirmatively rel[ies] on privileged

communications to support its claim or defense and then shield[s]

the underlying communications from scrutiny by the opposing

party." In re Grand Jury Proc., 219 F.3d 175, 182 (2d Cir. 2000).

We see no such fairness concerns or selective disclosure

here. The city insisted from the outset that the discussions at

the executive session, including any advice rendered by the city

attorneys, were neither discoverable nor admissible, and it did

not selectively disclose information helpful to its cause while

concealing other information that was unhelpful. We therefore

decline to disturb the district court's ruling.

D. Harm of the Evidentiary Rulings

We conclude by noting that, even if the district court

did abuse its discretion in any of its evidentiary rulings

(although we determine it did not), any error was harmless.

Neece's central argument is that he was prejudiced by the exclusion

of the verbatim statements from the executive session because "the

bland and summary questions that" witnesses had answered "had

nowhere near the force or the clarity of [the] actual words in the

meeting." But in reviewing the record as a whole, we cannot say

- 32 - it is "highly probable" that the exclusion of those words

"affect[ed] the outcome of the case," McDonough, 452 F.3d at 19-20,

given both the evidence Neece did introduce and the evidence the

city put forth in support of its defense. As for Neece's evidence,

we've explained that witnesses, including the mayor, disclaimed

that city council members' calls for discipline were relayed to

the mayor. We therefore cannot say that the exclusion of those

statements impacted the verdict. As for Albano's comments on the

impact of Neece's testimony in the Huber case, Neece also put forth

evidence on this point. He was able to have both Albano and the

mayor confirm on the stand that, prior to recommending a

settlement, the mayor knew that Neece provided specific pieces of

evidence that were obviously detrimental to the city's defense,

and the mayor was concerned about taxpayer money funding a

settlement. Finally, through seven witnesses who had interacted

or worked directly with Neece, the city introduced substantial

evidence that countered Neece's version of why he lost his job,

which the jury could have credited to find that the mayor had a

legitimate, nonretaliatory reason for not renewing Neece's

contract: Neece's performance issues.

"Given the totality of the evidence," the particular

statements from the executive session, describing Neece as a

nightmare witness for the city and his testimony and the settlement

it prompted as unpalatable, "cannot reasonably be understood

- 33 - as . . . [the] pivotal evidence that [could have] tipped the

verdict in favor" of Neece. Gay v. Stonebridge Life Ins. Co., 660

F.3d 58, 64 (1st Cir. 2011).

IV. CONCLUSION

For all these reasons, we affirm.

- 34 -