997 F.3d 23
1st Cir.2021Background:
- In 2010 a Brookline firefighter, Paul Pender (Alston's supervisor), left a voicemail using a racial slur directed at or referring to Gerald Alston; the Town disciplined Pender (two tours suspension) but later promoted him temporarily and then permanently.
- Alston complained internally, filed MCAD charges (2012, amended for retaliation), and sued in state court (2013); the state suit was dismissed with prejudice in 2014 for discovery failures.
- Post-2014, Alston alleges continued shunning, a "Leave" dust- message incident, a flyer publicizing alleged "going postal" comments, psychiatric evaluations, suspension/paid-leave disputes, failures to meet return-to-work conditions, drug-test disputes, and eventual termination (2016); the Civil Service Commission later reversed the termination and ordered reinstatement.
- Alston filed a federal civil-rights suit (42 U.S.C. §§ 1981, 1983, 1985) naming the Town, the Board, Town officials (in individual and official capacities), and others; defendants moved for summary judgment and the district court granted it in full.
- On appeal the First Circuit reviewed (1) whether the state-court dismissal precluded federal claims or use of pre-2014 facts, (2) dismissal of §1981 and equal-protection claims, (3) admissibility/weight of the Civil Service Commission decision (D&F), (4) §1983 retaliation claims against the Town/Board and individual officials, and (5) challenge to settlement non-cooperation clauses.
- The Court affirmed some rulings, vacated others, and remanded: it held pre-2014 facts are not barred from consideration; affirmed dismissal of §1981 and equal-protection claims; reversed exclusion of the D&F and vacated summary judgment on certain §1983 retaliation claims; upheld denial of voiding non-cooperation clauses.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Claim preclusion / scope of record | Alston: state-court dismissal doesn't bar claims against individual officials in their personal capacities and pre-2014 facts may support mixed claims | Defendants: 2014 dismissal with prejudice bars earlier facts/claims and limits federal action to post-2014 events | Court: state dismissal does not preclude claims against defendants in their individual capacities and does not bar use of pre-2014 facts; district court's temporal limitation was error |
| §1981 claims against state actors | Alston: §1981 claims should proceed | Town: §1981 does not provide damages remedy against state actors; §1983 is exclusive remedy | Court: affirmed — §1981 damages claims against state actors barred (followed circuit precedent) |
| Equal Protection (selective treatment) | Alston: Town/officials discriminated and treated him worse because of race | Defendants: no comparator evidence of similarly situated non-Black employees | Court: affirmed summary judgment — plaintiff failed to identify similarly situated comparators |
| §1983 First Amendment retaliation (municipal/Board) | Alston: his protected speech on racial discrimination and subsequent complaints were substantial motivating factors; D&F shows Town's reasons were pretextual | Town: relied on fitness-for-duty, psychiatric reports, non-cooperation and safety concerns as legitimate, non-retaliatory reasons | Court: vacated summary judgment for Town/Board; district court abused discretion excluding the Civil Service Commission D&F; D&F plus record permit reasonable jury to find pretext and retaliation; remanded |
| §1983 retaliation (individual officials) | Alston: officials participated in or condoned retaliatory actions | Officials: claim preclusion, lack of adverse action by some, or qualified immunity | Court: affirmed summary judgment for four officials (DeBow, Murphy, DeWitt, Goldstein) re: no adverse action shown; vacated summary judgment as to Daly, Greene, Heller, Franco, Wishinsky (triable issues remain); qualified immunity left for district court to address on remand |
| Enforceability of non-cooperation settlement clauses | Alston: clauses that bar voluntary cooperation with his suit violate public policy and should be voided | Town: clauses allowed compelled testimony and cooperation with agencies; settlements are favored to encourage resolution | Court: affirmed denial of voiding motion — clauses not against public policy given carve-outs for subpoenas/agency cooperation |
Key Cases Cited
- Goldstein v. Galvin, 719 F.3d 16 (1st Cir. 2013) (official-capacity vs individual-capacity privity distinction for claim preclusion)
- Buntin v. City of Boston, 857 F.3d 69 (1st Cir. 2017) (§1981 damages claims barred against state actors; §1983 is exclusive remedy)
- Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (U.S. 1989) (limits on §1981 as against state actors; §1983 as remedy)
- Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 (U.S. 2000) (standards for proving pretext at summary judgment and jury inference of discrimination)
- Garcetti v. Ceballos, 547 U.S. 410 (U.S. 2006) (public-employee speech balancing and limits)
- Monell v. Dep't of Social Servs., 436 U.S. 658 (U.S. 1978) (municipal liability under §1983)
- Pickering v. Board of Education, 391 U.S. 563 (U.S. 1968) (balancing test for public-employee speech)
- Che v. Mass. Bay Transp. Auth., 342 F.3d 31 (1st Cir. 2003) (caution about taking motive and intent away from jury in discrimination cases)