Silva v. Worden

• Court: Court of Appeals for the First Circuit
• Decided: November 20, 1997
• Docket: 96-2165
• Status: Published

Opinion

USCA1 Opinion

United States Court of Appeals
                            United States Court of Appeals

                                For the First Circuit
                                For the First Circuit



                                 ____________________



            No.  96-2165



                                    KENNETH SILVA,



                                Plaintiff, Appellant,



                                          v.



             LAWRENCE D. WORDEN, INDIVIDUALLY AND AS COMMISSIONER FOR THE

               CITY OF NEW BEDFORD DEPARTMENT OF PUBLIC WORKS, ROSEMARY

                   TIERNEY, AS MAYOR, AND THE CITY OF NEW BEDFORD, 



                                Defendants, Appellees.

                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                    [Hon. Robert Collings, U.S. Magistrate Judge]
                                           _____________________

                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________

                                Lynch, Circuit Judge,
                                       _____________



                            and Stearns,* District Judge.
                                          ______________



                                 ____________________



                Philip N. Beauregard, with whom Law Offices of Beauregard
                ____________________            _________________________

            & Burke was on brief for the appellant.
            _______

                Kevin J.  Finnerty, Assistant  City Solicitor, with  whom
                __________________

            Peter  J. Thomas, Assistant  City Solicitor was  on brief for
            ________________

            appellees.



                                 ____________________



                                  November 20, 1997

                                 ____________________


____________________



                 *  Of   the  District  of   Massachusetts,  sitting   by

            designation.



LYNCH, Circuit Judge.  Kenneth Silva appeals from a
                      LYNCH, Circuit Judge.
                             _____________



            directed verdict  on his  claims alleging  violations of  the



            First  and Fourteenth Amendments.  The First Amendment claims



            are that Silva  was subjected to a  ban on parking cars  in a



            city employee parking lot when the cars carry  political roof



            rack signs,  that the  ban was  selectively enforced  against



            him, and that  the termination of his city  employment was in



            retaliation for his support of his wife's political candidacy



            for city  office when  she ran against  a candidate  whom the



            mayor  supported.   The Fourteenth  Amendment  claim is  that



            Silva's liberty or  property interests under the  Due Process



            Clause were violated  when he was  not given a  name-clearing



            hearing  before  his  employment was  terminated  for pushing



            another city employee.



                      At the  close of  plaintiff's evidence,  defendants



            moved for  a directed verdict.   The district court  took the



            motion  under advisement  and  then,  at  the  close  of  all



            evidence, directed a verdict against the  plaintiff as to the



            roof rack ban, selective enforcement, and due process claims.



            The  court let the retaliatory firing claim against defendant



            Worden go to  the jury, which held in favor of the defendant.



            The retaliatory firing claim against  the City of New Bedford



            and  Mayor  were  dismissed.    Silva  appeals  the  directed



            verdict,  but  not  the  jury  finding  against  him  on  his



            retaliatory firing claim.  We  affirm.  In so doing, we  hold


3



that the  roof rack ban was not a  custom or practice so well



            established as  to be  attributable to  the City  through its



            policy-making  officials.    We  further  hold  that  Silva's



            termination did  not occur under  circumstances entitling him



            to a hearing. 



                                          I
                                          I



                      Silva was hired  by the City as an  employee in the



            Department of  Public Works  on May  24, 1993.   Silva  was a



            probationary employee; as such he could not obtain full civil



            service status until six months after the date of his hiring.



            In  June  1993,  Ramone Silva,  Silva's  wife,  announced her



            intention to run  for election as City Councilor  for Ward 4.



            Mrs. Silva was one of  five candidates who sought election to



            this vacant seat.  The leading candidate in this campaign was



            Joseph  Fortes,  a  political   ally  of  defendant  Rosemary



            Tierney,  the Mayor  of  New  Bedford.    Defendant  Lawrence



            Worden,  the DPW  Commissioner,  and  Jose  Pontes,  the  DPW



            Superintendent  and manager  of  the  city  yard,  were  also



            supporters of Mayor Tierney.



                      Because she was a write-in candidate and not on the



            ballot, Mrs.  Silva relied heavily on signs  to bring herself



            to  the attention  of voters.   Such  a write-in  campaign is



            unusual in New Bedford, so Mrs. Silva's efforts received much



            publicity.   Silva vigorously  supported his wife's candidacy



            and  worked on her  behalf.  Pictures  of Silva  and his wife


4



were widely distributed in  campaign literature and published



            in area newspapers. 



                      Silva worked  for  the DPW  without incident  until



            September 23, 1993, when Silva went to the supply area to get



            work  gloves and  was  ignored by  the supply  clerk, Timothy



            Lobo.  Lobo, a supporter  of Mayor Tierney, knew that Silva's



            wife  was campaigning against  Fortes.  Lobo  refused to give



            any gloves  to Silva,  telling him  he  "was not  important."



            When Silva later approached  Lobo to discuss the  incident, a



            physical altercation  resulted  in which  Silva pushed  Lobo.



            While no one was injured and the incident was treated by both



            parties  as "no  big deal,"   Lobo  reported the  incident to



            Pontes.



                      Pontes  called Silva  to his  office and  chastised



            Silva for the incident.  Pontes also told Silva to remove his



            car from  the city yard,  where Silva  had parked.   The city



            yard is  a large area,  primarily containing the  DPW Highway



            Department, where DPW  employees commonly park.   Silva's car



            had a  roof rack  advertising his wife's  candidacy for  City



            Councilor.   Pontes told  Silva that  city policy  prohibited



            employees from parking cars with political roof rack signs in



            the city yard.   There was evidence that  other DPW employees



            had  parked  their  personal  cars  in  the  city  yard  with



            political roof  rack  signs advocating  other candidates  for



            public office.  Some DPW  employees also had bumper  stickers


5



on  their cars.    But  no other  person,  except Silva,  has



            recently  been instructed  to move  his  or her  car.   Silva



            relocated his car and never parked in the city yard again. 



                      Pontes, as  DPW Superintendent, was  second in  the



            DPW  heirachy  below   Worden.    Commissioner   Worden,  not



            Superintendent Pontes, ran the agency.  Pontes supervised the



            day-to-day  operations of the  DPW.  While  Worden had formal



            authority over the city yard, Pontes administered the yard on



            a daily basis,  a responsibility  traditionally exercised  by



            the DPW Supervisor.



                      On  September 24, 1993, Pontes gave Silva a written



            warning   indicating  that   Silva  "pushed  Tim   Lobo"  and



            recommending  that Silva's  probation  be  extended.    Silva



            refused to  sign  the warning.   Pontes  sent a  copy of  the



            warning to  the union  steward and placed  a copy  in Silva's



            personnel file.   Although  Pontes instructed  Silva that  he



            would be  given a  hearing before  Worden,  as was  customary



            practice  for   probationary  employees,   Silva  was   never



            contacted by Worden for this purpose.



                      On  October 7, 1993, Silva received a letter signed



            by Worden  discharging him because of the  events giving rise



            to  the warning.    Worden  never spoke  to  Silva about  the



            discharge  and declined  to  grant Silva  a hearing  at which



            Silva might defend  himself.  Silva was unable  to find other


6



work  for two  years.    On election  day,  1993, Mrs.  Silva



            defeated Fortes for the Ward 4 seat.  



                       In April 1994, Silva sued the City, Mayor Tierney,



            and  Worden under 42 U.S.C.   1983 and Mass. Gen. Laws ch. 12



              11H,I (the state civil rights acts), claiming that the roof



            rack   ban  violated  the   First  Amendment,  that   it  was



            selectively enforced against  him, that he was  discharged in



            retaliation for his support of his wife's candidacy, and that



            the City's  failure to  provide him  a name-clearing  hearing



            prior to his  discharge violated his liberty  interests under



            the Due Process Clause of the Fourteenth Amendment.  



                      At trial, Commissioner Worden testified that Pontes



            had informed him  there was a longstanding  city "policy" set



            by the  DPW Superintendents  prohibiting political  roof rack



            signs  in the city yard,  although Worden also testified that



            he had  no knowledge of  any such practice until  after Silva



            had filed suit  against the City.  Pontes  testified that the



            policy had been first  instituted by a DPW  Superintendent in



            the  1970's  and  was  continued  by  later  Superintendents,



            including Pontes.   Pontes and Lobo both  testified that they



            remembered past incidents of people being asked to move their



            cars on account of political roof racks. 



                      At  the close of Silva's case, defendants moved for



            a directed verdict.  The  court reserved ruling on the motion



            and instructed  the defendants  to proceed  with their  case,


7



"understanding that I'll  be judging the evidence as  of this



            point, without considering  the evidence that you  introduce,



            rather  than keep  the jury waiting."   After  the defendants



            completed  presenting  their  evidence,  they  renewed  their



            motion for  directed verdict, which  the court granted.   The



            court let the retaliatory firing  claim go to the jury, which



            found in favor of Worden, the sole remaining defendant.



                                          II
                                          II



                      In  reviewing a directed verdict under Fed. R. Civ.



            P. 50(a), "we take the  evidence most favorable to the losing



            party  and  ask  de  novo   whether  a  reasonable  jury  had



            inevitably to  decide in  favor of the  victor."   Abraham v.
                                                               __________



            Nagle, 116 F.3d 11, 13 (1st Cir. 1997).  
            _____



                      We consider  all  evidence  offered  during  trial,



            including evidence introduced  by the defendants.  We do this



            notwithstanding the  defendants' motion for  directed verdict



            at the end of Silva's case and the court's  statement that it



            would rule,  although at the  close of all evidence,  only on



            the plaintiff's  evidence.   The court's  reservation on  the



            initial motion  at the end of Silva's  case acted as a denial



            of the motion, upon which the  City had the choice of  either



            standing on its motion or  proceeding with its evidence.  The



            defendants chose  to proceed  with their  evidence, and  this



            court  must now  view all  of  the evidence  presented.   See
                                                                      ___



            Gillentine v. McKeand, 426 F.3d 717, 722-23  (1st Cir. 1970);
            __________    _______


8



A & N. Club v. Great American Ins. Co., 404 F.2d 100, 103-104
            ___________    _______________________



            (6th Cir. 1968) (citing O'Malley v. Cover, 221 F.2d 156, 158-
                                    ________    _____



            59 (8th Cir. 1955)).   Moreover, the court held that directed



            verdict was proper  based both on Silva's  evidence alone and



            on   all  evidence   presented  during  the   trial,  thereby



            effectively making two separate rulings.



                      In  reviewing  a  directed verdict,  the  appellate



            court "may not consider the credibility of witnesses, resolve



            conflicts  in  testimony,  or  evaluate  the  weight  of  the



            evidence."  Wagenmann  v. Adams, 829 F.2d 196,  200 (1st Cir.
                        ___________________



            1987).   "Nevertheless, the  evidence to which  the nonmovant



            points must comprise more than fragmentary tendrils:  a  mere



            scintilla of evidence  is not enough to  forestall a directed



            verdict,  especially on  a claim  or  issue as  to which  the



            burden of  proof belongs  to the  objecting party."   Fashion
                                                                  _______



            House, Inc.  v. K Mart Corp.,  892 F.2d 1076, 1088  (1st Cir.
            ____________________________



            1989) (citations omitted).



                      We repeat the procedural context.  A jury heard and



            rejected the retaliatory firing claim.   At issue here is the



            potential liability of the City  on the other First Amendment



            claims and the due process claim.  With this in mind, we face



            the central questions in this appeal: (1) whether Pontes is a



            "policymaker" under Monell v. Department  of Social Services,
                                ______    ______________________________



            436 U.S. 658 (1978) and its progeny, (2) whether the City had



            a "policy" or "custom" of banning political  roof rack signs,


9



and  (3) whether  Silva was  deprived  of a  liberty interest



            under the Due  Process clause of the  Fourteenth Amendment by



            the method  of his termination.   We answer each  question in



            the negative.



            A.  Municipal Liability
                ___________________



                      In   Monell,  the   Supreme  Court   held   that  a
                           ______



            municipality may not be held vicariously liable  under   1983



            for  the torts  of an  employee solely  on the  basis of  its



            employer-employee relationship with  the tortfeasor.  Id.  at
                                                                  ___



            691.  Instead,  a plaintiff seeking to impose  liability on a



            municipality  under   1983 must identify a municipal "policy"



            or a "custom" that caused  the plaintiff's injury.  See Board
                                                                ___ _____



            of County Comm'rs   of Bryan County v. Brown, 117 S.Ct. 1382,
            ___________________________________    _____



            1388 (1997);  Pembauer v.  Cincinnati, 475  U.S. 469,  479-81
                          ________     __________



            (1986); Monell,  436 U.S. at  694.  The disputed  "policy" or
                    ______



            "custom" must also  be the cause and moving  force behind the



            deprivation  of  constitutional  rights.    See Bryan  County
                                                        ___ _____________



            Comm'rs,  117  S.Ct. at  1388.   Because  neither  policy nor
            _______



            custom is shown here, we do not reach the causation issue.



                      A  municipality may be  held liable for  acts taken



            pursuant to  a "policy  by at least  two methods:1   when the



                                
            ____________________



            1.     Justice Souter,  in  his dissenting  opinion in  Bryan
                                                                    _____

            County Comm'rs, identifies three alternatives:  (1) where the
            ______________

            appropriate   office  promulgates   a  generally   applicable

            statement of  policy  and the  subsequent  act is  simply  an

            implementation  of the  policy; (2)  where no  rule  has been

            announced but federal law has been violated by the act of the

            policymaker itself; (3)  where the policymaker has  failed to



                                          10



deprivation  resulted (1)  "from the  decisions  of its  duly



            constituted  legislative body", or (2) from the decisions "of



            those officials whose acts may fairly be said  to be those of



            the   municipality."    Id.    In  such  cases,  "[m]unicipal
                                    ___



            liability  attaches only  where  the decisionmaker  possesses



            final authority to establish municipal policy with respect to
            _______________



            the  action ordered."   Pembauer, 475  U.S. at  481 (emphasis
                                    ________



            added). 



                      Liability  may also be premised on a "custom" which



            caused plaintiff's  injury.   In  particular, a  municipality



            might be held liable when the plaintiff is injured by "an act



            performed pursuant  to a 'custom' that has  not been formally



            approved by  an appropriate decisionmaker [when] the relevant



            practice  is so  widespread as  to  have the  force of  law."



            Bryan  County Comm'rs,  117 S.Ct.  at  1388.   As this  court
            _____________________



            explained  in Bordanaro v.  McLeod, 871  F.2d 1151  (1st Cir.
                          _________     ______



            1989), one  method of showing  custom is to  demonstrate that



            the custom or practice is so "wellsettled and widespread that



            the policymaking officials of the municipality can be said to



            have either  actual or constructive  knowledge of it  yet did



            nothing to end the practice."  Id. at 1156.
                                           ___



                                
            ____________________



            act affirmatively at all,  so long as the need to control the

            agents of government is so obvious, and the inadequacy of the

            existing  practice  so  likely  to  result  in  violation  of

            existing  right,  that the  policymaker  can  be  said to  be

            "deliberatively  indifferent".    Bryan  County Comm'rs,  117
                                              _____________________

            S.Ct. at 1395.   None of this trilogy can be  said to be true

            here.



                                          11



The  evidence  presented  in  this  case  does  not



            demonstrate  the existence  of either  a policy  or a  custom



            under   1983.   First, Pontes, the individual  who told Silva



            he could not park in the city yard, is clearly not the "final



            authority" in  the city yard.   The City Code of  New Bedford



            specifically  provides  that  "[t]he  commissioner of  public



            works under the  direction of the mayor and  the city council



            shall . . . [h]ave the charge of the city yard . .  . ."  New



            Bedford  City  Code     19-143;  see   also  Jett  v.  Dallas
                                             __________  ____      ______



            Independent School  Dist., 491  U.S. 701,  737 ("[W]hether  a
            _________________________



            particular official  has 'final policymaking  authority' is a



            question of state law." (quoting St. Louis v. Praprotnik, 485
                                             _________    __________



            U.S. 112,  123 (1988))).   Thus Worden, as  DPW Commissioner,



            was Pontes's superior in matters concerning the city yard and



            ultimately  responsible for the manner  in which the yard was



            run.  That Worden acknowledged  at trial that Pontes was "the



            head  guy" at  the  yard is  insufficient,  without more,  to



            demonstrate  that   Worden  delegated   final  decisionmaking



            authority regarding the  yard to Pontes.  This  is especially



            true in light of Worden's assertions at trial that Pontes, as



            DPW Superintendent,  was "directly beneath my  position," and



            that "I am the department head."



                      We agree with the district  court's assessment that



            Pontes's discretion to run the yard does not constitute final



            decisionmaking authority which  might trigger liability under


12



1983 as  interpreted by Bryan County Comm'rs  and Pembauer.
                                      ____________________      ________



            Pontes's testimony that an unidentified DPW Superintendent in



            the  1970's first came  up with  the roof  rack ban  does not



            suffice.   Such  a decision  was  not made  by New  Bedford's



            legislative body; nor are superintendents, who are second-in-



            command figures, the final authority to establish DPW policy.



                      Second, Silva has not met  the burden of showing  a



            "custom"  under Bordanaro.   The  roof  rack ban  was not  so
                            _________



            "wellsettled and widespread" as to  have force of law, nor is



            there  sufficient  evidence   that  the  City's  policymaking



            officials could  be said to  have had actual  or constructive



            knowledge of the practice.   See Bordanaro, 871 F.2d at 1156-
                                         ___ _________



            57.  At  the close  of evidence, witnesses  such as Lobo  and



            Pontes  could only  remember  a few  instances over  the last



            twenty years  when any  roof rack  policy had been  enforced.



            More significantly, Commissioner Worden testified that he did



            not  even know  of  the existence  of a  roof rack  ban until



            several months after  Silva had been  fired and, indeed,  not



            until after Silva had filed suit against the City.  Moreover,



            there is no evidence that Mayor Tierney or other high ranking



            city officials, or prior policymakers, were even aware of the



            practice, much  less that they did nothing to  end it.  We do



            not suggest that, and need not reach the issue of whether,  a



            flat ban  on political  roof racks on  cars in  city employee



            parking lots is  unconstitutional.  Even if  Silva's "custom"


13



claim   is  recast  as   involving  a  custom   of  selective



            enforcement of such a ban depending on which candidate's sign



            is displayed,  a far  more potent  constitutional claim,  the



            claim still  fails for  want of evidence  that it  involves a



            custom.   



                      Under  Bordanaro,   in  order  to  show  that  City
                             _________



            officials  had constructive  knowledge of  the practice,  the



            plaintiff   must  show  that  "the  practices  have  been  so



            widespread or flagrant that  in the proper exercise  of their



            official responsibilities  the municipal  policymakers should



            have known of them."  Bordanaro, 871 F.2d at 1157 (citations,
                                  _________



            internal quotation  marks,  and  alterations  omitted).    In



            Bordanaro, the plaintiff  had presented considerable evidence
            _________



            demonstrating a  comprehensive failure by the  defendant City



            of Everett  to train  and monitor the  actions of  its police



            officers,  and the court found that the evidence demonstrated



            the  existence  of   a  widespread  practice  of   which  the



            defendant's policymaking  officials should  have been  aware.



            See Id. at  1159-61.  In contrast, the evidence  in this case
            ___ ___



            at best suggests a practice,  sporadic at most, of which only



            some  lower-level  managerial  employees were  aware.    This



            evidence is insufficient to show that the City's policymaking



            officials had constructive notice of the practice.



            B.  Due process considerations
                __________________________


14



Silva  claims he was deprived of a liberty interest



            under the Due  Process clause of the  Fourteenth Amendment by



            the termination  of his  employment in  that the  termination



            stigmatized  him  and  damaged his  ability  to  obtain other



            employment.  Silva further argues that the City  violated his



            right to  due process by  refusing to grant him  a hearing at



            which he might clear his name.



                      The  Supreme Court has held that termination of at-



            will employment, even  when accompanied  by statements  which



            might be  characterized  as defamatory,  is  insufficient  by



            itself to  implicate a constitutionally  protected liberty or



            property interest.  See Bishop  v. Wood, 426 U.S. 341, 348-49
                                ___ ______     ____



            n. 13 (1976);  Board of  Regents v. Roth,  408 U.S. 564,  572
                           _________________    ____



            (1972). Despite the "drastic effect of the 'stigma' which may



            result  from defamation  by the  government in  a  variety of



            contexts,  .  .  .  reputation alone,  apart  from  some more



            tangible interests such as employment, is [n]either 'liberty'



            [n]or  'property'   by  itself  sufficient   to  invoke   the



            procedural  protection of the  Due Process Clause."   Paul v.
                                                                  ____



            Davis, 424  U.S. 693, 701  (1976).  Rather,  the reputational
            _____



            injury  must  be  accompanied  by  a  change  in  the injured



            person's  status or rights under substantive state or federal



            law.  See Id. at 710-12.
                  ___ ___



                      We interpreted  these requirements  in Beitzell  v.
                                                             ________



            Jeffrey, 643  F.2d  870 (1st  Cir. 1981),  stating that  "the
            _______


15



Fourteenth  Amendment procedurally  protects reputation  only



            where  (1) government action threatens it, (2) with unusually



            serious harm, (3)  as evidenced by  the fact that  employment



            (or some  other right or  status) is affected."   Id. at  878
                                                              ___



            (footnote and citations omitted).  Moreover, the municipality



            terminating the  employee must  also be  responsible for  the



            dissemination of defamatory charges, in a formal setting (and



            not  merely as  the  result  of  unauthorized  "leaks"),  and



            thereby  significantly  have interfered  with  the employee's



            ability to find future employment.  Id. at 879.  
                                                ___



                      Massachusetts  law, under  the State  Constitution,



            may  have  a  slightly  broader  conception  of  the  liberty



            interests  protected by  due process  in this  sort of  case.



            Such  liberty interests  have  been found  in the  absence of



            formal charges where the  allegedly defamatory statements are



            "likely to be disseminated either to members of the public or



            to  prospective  employers."  See  Smith  v. Commissioner  of
                                          ___  _____     ________________



            Mental Retardation,  28 Mass.  App. Ct.  628, 636-37  (1990),
            __________________



            rev'd on other grounds, 409 Mass.  545 (1991).  But the right
            ______________________



            to  a  hearing  still  only   attaches  when  the  damage  to



            plaintiff's character  is very serious.  As  the court stated



            in Smith,
               _____



                      The type  of  damage  to  reputation  and

                      character . . .  must be beyond  whatever

                      obloquy stems  from  the loss  of a  job,

                      demotion,   adverse  evaluations   (e.g.,

                      inefficiency   and    incompetence),   of

                      judgments of job performance.  Similarly,


16



demotions or transfers  with overtones of

                      disciplinary   action   and    consequent

                      adverse  effect  on  reputation  do  not,

                      without  more,  give  rise to  a  liberty

                      interest.



            Id. at 635 (citations omitted); see also, Stetson v. Board of
            ___                             ________  _______    ________



            Selectmen,  369 Mass.  755,  761  (1976)  (To  "constitute  a
            _________



            deprivation  of  liberty  based on  serious  damage  to one's



            standing in  the  community, more  must  be shown  than  mere



            allegations of  incompetence or inefficiency at  a particular



            job.")



                      The  evidence  does  not meet  these  requirements.



            There is no evidence that  the basis for Silva's termination,



            that Silva  "pushed Tim  Lobo",  was ever  disseminated in  a



            formal setting, as required under federal law.  Even assuming



            the state standard  is different, there was  no dissemination



            to  the public or to  prospective employees.  The termination



            letter  that  passed through  the  City  personnel department



            remarked only  on  Silva's "unsatisfactory  conduct  and  job



            performance".   The employee warning written by Pontes stated



            only  that  Silva "pushed  Tim  Lobo"  and  was not  publicly



            disseminated.   Silva's union representative was aware of the



            incident only  because Silva  requested the  representative's



            presence  when  Pontes  issued  his  warning.    That  Worden



            interviewed  a witness  to the  incident  is insufficient  to



            constitute dissemination.    Finally, that  the incident  was



            discussed by other employees in the city yard is not evidence


17



that the incident  was published by Worden or  any other city



            official or was  the basis for a formal  charge requiring due



            process protections.



                      In  sum, we find  no evidence supporting  the claim



            that Silva's termination was accompanied by defamatory formal



            charges  or  statements  that   were  disseminated  by   city



            officials.  Nor do we  find evidence that Silva's  subsequent



            difficulty in  obtaining employment resulted from  the City's



            discharge  of  Silva  for  unsatisfactory   conduct  and  job



            performance.



                      Affirmed.  Costs to the defendants.
                      ________


18