Pro se рlaintiff-appellant Gerald Fabiano appeals from the district court’s judgment in favor of his former employer, the Corporation Counsel’s office of the defendant-appellee City of Boston. Fabiano asserts that he was unlawfully terminated in retaliation for filing a lawsuit in state court against the City of Boston Zoning Board of Appeal, which was the Corporation Counsel’s client. The district court awarded summary judgment to the City and the individual defendant-appellees, holding that as a matter of law, Fabiano’s termination did not violate the First Amendment. We affirm the judgment below, albeit on different grounds than those set forth by the district court.
I. Background
We present the facts in the light most favorable to Fabiano, as the party opposing summary judgment.
See Sparks v. Fidelity Nat’l Title Ins. Co.,
During late 1996 and early 1997, Hopkins received reports from Joyce and another manager expressing concerns about Fabiano’s case management skills, particularly with respect to his approach to settlement. In June, 1997, these concerns were discussed at a meeting attended by Fabi-ano and Hopkins.
In January, 1998, Fabiano informed Joyce that he had initiated a pro se action appealing a decision of the City of Boston Zoning Board of Appeal (“Zoning Board”) to the Superior Court. The Government Affairs Division represents the Zoning Board on appeals, and Fabiano had personally worked on two such cases during his tenure.
In Fabiano’s pro se appeal, he challenged the renewal of a zoning variance for a restaurant located one hundred feet from real estate in which he had an ownership interest. 1 Fabiano cоntended that a variance had never been initially granted, and that the renewal, issued in error, permitted a sit-down restaurant to provide takeout services, thus diminishing the limited parking supply on his residential street. Plaintiffs mother, who owned a different abutting property, joined him in the action. Like Fabiano, she represented herself.
Notwithstanding the strong reaction of Joyce, Fabiano did not seek permission for self-representation or procure outside counsel. He believed that under the conflict of interest policy governing situations in which an employee acts on his own behalf, his action was permissible.
The matter was reported to Hopkins, who was told (apparently incorrectly) that Fabiano was representing his family as well as himself in the action. After consulting with outside counsel, Hopkins came to believe that Fabiano’s actions were “potentially in violation of state law, as well as state ethical rules governing the practice of attorneys.”
For a few months after Fabiano filed the Zoning Board action, Joyce regularly asked Fabiano about his trial schedule, something that he had never done before. On May 22, 1998, shortly after Fabiano reported that he had no trials scheduled, Hopkins terminated his employment. She did this while holding a copy of the Zoning Board complaint in her hand, telling Fabi-ano that she lacked confidence in his judgment and was dismayed that he had not consulted state statutes, the Board of Bar Overseers, the State Ethics Commission, or any manager before entering his appearance against the City.
Hopkins contended that she did not fire Fabiano for suing the City, but rather for his failure to follow city policy with respect to written disclosure and prior written approval of his lawsuit, as well as “his inability or unwillingness to acknowledge the serious professional, ethical and practical problems created by his lawsuit.” She stated that the Zoning Board lawsuit was merely one more example of poor judgment with respect to his caseload.
After investigation, the City acknowledged that the variance decision had resulted from “inadvertent clerical error.” Joyce answered and handled the matter on behalf of the City. On February 18, 1999, the zoning appeal was resolved in favor of Fabiano and his mother by agreed judgment.
In December 2001, Fabiano filed a complaint in the Massachusetts Superior Court asserting First Amendment claims against each defendаnt pursuant to 42 U.S.C. § 1983 as well as common law state claims. Defendants removed the case to federal court.
After a hearing, the district court allowed the defendants’ motion for summary judgment with respect to the First Amendment claims, and remanded the state claims to state court.
Fabiano v. Hopkins,
II. Discussion
Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Rosenberg v. City of Everett,
We may affirm the district court’s entry of summary judgment on any ground revealed by the record.
Houlton Citizens’ Coalition v. Town of Houlton,
A. Municipal liability pursuant to 42 U.S.C. § 1983
In an action pursuant to 42 U.S.C. § 1983, there can bе no municipal liability under a respondeat superior theory.
Monell v. Dept. of Soc. Servs.,
Hopkins is the relevant policymaker for the purposes of our § 1983 analysis, as the decision to terminate Fabiano’s employment ultimately resided with her. Fa-biano does not point to any relevant City “policy” beyond the mere fact that Hopkins decided to fire him. Nor does he assert that the City has made a well-settled practice of punishing attorneys who have taken legal action against it or otherwise exercised their First Amendment rights. 3
Absent evidence of an unconstitutional municipal policy, a single incident of misconduct cannot provide the basis for municipal liability under § 1983.
Oklahoma City v. Tuttle,
B. Individual liability and qualified immunity
The individual defendants, Hopkins and Joyce, assert an affirmative defense of qualified immunity. Qualified im
In assessing this defense, we consider a sequence of questions: (1) whether the facts as alleged make out a constitutional violation; (2) whether that right was clearly established; and (3) whether a similarly situated reasonable official would have understood that her conduct violated clearly established law.
Savard v. Rhode Island,
1. First Amendment violation
Accordingly, we first consider whether Fabiano’s allegations set forth a First Amendment violation. As an initial matter, every citizen has the right “to petition the Government for a redress of grievances.” U.S. Const. amend. I. The right of access to the courts is an established aspect of this right.
Bill Johnson’s Restaurants, Inc. v. NLRB,
In
Mullin v. Town of Fairhaven,
First, we must determine whether the speech at issue involves “matters of public concern.” Connick v. Myers,461 U.S. 138 , 147-48,103 S.Ct. 1684 ,75 L.Ed.2d 708 (1983). If it does not, then its First Amendment value is low, and a “federal court is not the appropriate forum in which to review the wisdom” of internal decisions arising therefrom. Id. at 147,103 S.Ct. 1684 . Second, if the speech does pertain to matters of public concern, the court must, under the Supreme Court’s decision in [Pickering v. Bd. of Educ.,391 U.S. 563 ,88 S.Ct. 1731 ,20 L.Ed.2d 811 (1968) ], balance the strength of plaintiffs’ and the public’s First Amendment interests against “the strength of the countervailing governmental interest in promoting efficient performance of the public service the gоvernment agency or entity must provide through” its public officials ...
(internal citations omitted). Third, Fabiano must show that his protected speech was a substantial or motivating factor in the City’s decision to fire him.
See id.
at 38;
Lewis v. City of Boston,
a. Matter of public concern
In the first step of this analysis, whether Fabiano’s lawsuit addressed a matter of public concern presents a very close question. We examine the entire record to assess the content, form, and context of his speech.
See Connick,
On the other hand, public-employee speech on a topic which would not necessarily qualify, on the basis of its content alone, as a matter of inherent public concern (e.g., internal working conditions, affecting only the speaker and coworkers), may require a more complete Connick analysis ... with a view to whether the community has in fact manifested a legitimate concern in the internal wоrkings of the particular agency or department of government, and, if so, whether the “form” of the employee’s expression suggests a subjective intent to contribute to any such public discourse.
Id. at 914.
Fabiano contends that .because his lawsuit involves zoning, it is inherently a matter of public concern under
O’Connor.
We agree that zoning relates to the public interest in a very broad sense.
See McElderry v. Planning Bd. of Nantucket,
To use so broad a standard, however, would sweep nearly every public act under First Amendment protection. The specific nature of Fabiano’s legal action— whether a variance was correctly issued for a take-out restaurant on a residential street — does not constitute the type of issue of inhеrent public concern that would truncate our analysis under
O’Connor.
His complaint cannot be said to engage the public interest on a large scale; it is more akin in scope to a public employee speaking out on a workplace concern.
See O’Connor,
Accordingly, it is appropriate to inquire into Fabiano’s motives for his Zoning Board lawsuit. We examine the extent to which Fabiano intended his lawsuit to “contribute to any ‘public discourse,’ or if it simply reflected personal or internal ... concerns.”
Mullin,
There is no doubt that Fabiano’s lawsuit was motivated in large part by self-interest. As the owner of property abutting the restaurant granted the erroneous variance, he was directly affected by the renewed variance and the concomitant possibility of increased traffic. His complaint to the Zoning Board plainly sought to redress these matters. Indeed, Fabiano would not have had standing to bring suit had he lacked a personal interest and particularized harm.
See
Mass. Gen. Laws ch. 40A, § 16;
Green v. Bd. of Appeals,
Nonetheless, we think that Fabiano’s Zoning Board lawsuit had sufficiеnt public dimension to ground a First Amendment claim. The record supports a conclusion that Fabiano’s purpose in filing the lawsuit, in addition to vindicating his property rights, was to restore the integrity of the zoning process and remedy parking congestion. Fabiano and his mother had attempted, before and/or during their litigation, to point out the breakdown in the variance process that led to the improper renewal. These efforts ultimately were successful, resulting in an agreed judgment before the Zoning Board. Had Fabi-ano and his mother not acted in a timely matter to challenge the renewal, the Zoning Board’s error would have become permanent. See Mass. Gen. Laws ch. 40A, § 17 (stating that action must be brought within twenty days after the decision has been filed).
Although this is a very close case, we think the form and context of Fabiano’s expression indicates a subjective intent to contribute to public discourse.
See O’Connor,
b. Pickering balancing
The next step of our analysis of Fabiano’s First Amendment right is to balance the strength of the relevant constitutional interests against the countervailing governmental interest in promoting efficient performance of the City’s public service.
See Pickering,
The City contends that Fabiano’s conduct undermined the efficient internal workings of the department. Fabiano was a senior attorney responsible for counseling and representing agency clients, including the Zoning Board. In that position, he had an obligation to recognize the sensitive nature of his work. He failed to seek advice or advance permission from his superiors to litigate against one of his clients and rebuffed Joyce’s urging to seek outside counsel. Rather, he proceeded with his lawsuit, apparently heedless to the possibility of embarrassment to the Corporation Counsel’s office or an appearance of impropriety. Fabiano’s filing of the Zoning Board appeal, as well as his intransigence vis-a-vis his superiors following its disclosure, could be reasonably construed as disruptive.
Although the government’s conсerns are valid, they fall short of outweighing Fabi-
We note also that ultimately there was no adversity between Fabiano’s position and the City’s position concerning the variance at issue. The City eventually admitted that the renewal was issued improperly and entered an agreed judgment. In that respect, Fabiano’s successful attempt to redress the errors committed by the Zoning Board apparently did not conflict with the City’s mission to deliver government services. Indeed, Fabiano. arguably helped to vindicate the public’s interest in a fair and just review process.
Cf. O’Connor,
Moreover, Fabiano’s conduct arguably does not seem to have violated the City’s internal policy as expressed in its publication Introduction to Conflict of Interest Law for City of Boston Employees. That manual provides, in relevant part:
Acting on Behalf of Others
While you are a City employee, you may not act as agent or representative for anyone other than the City in connection with any matter involving the City....
Special case: Family Members. If you are an appointed employee, you are generally allowed to act as an agent for: members of your immediate family (yourself, your spouse, your parents, your siblings, your children, your spouse’s parents, your spouse’s siblings, and your spouses’s children), or any person for whom you serve as guardian, executor, administrator, trustee or personal fiduciary, provided that:
a. the mаtter is not within your official jurisdiction as a City employee;
b. you have never personally participated in the matter while employed by the City; and
c. you get prior, written permission from your appointing authority (see the definition of “appointing authority” at the end of this brochure).
Special case: Acting on your own behalf You are always allowed to represent yourself, and to state personal points of view. However, you should always make it clear that you are acting on your own behalf, and not acting in any officiаl capacity. You may even represent yourself before the City agency you work for (but remember that you may not take any type of official action on a matter that affects you).
(Emphasis in original).
The section titled “Acting on your own behalf’ appears to be relevant here. Although Joyce and Hopkins maintain they were told that Fabiano was representing his mother, Fabiano testified below that he told Joyce that he was only representing himself, and we must construe any disputes in his favor.
See Rosenberg,
Applying the latter section of the manual, it does not seem that Fabiano committed a violation. Nothing in the litigation indicated that Fabiano was acting in an official capacity as counsel to the City when he filed suit, or that he took any official action on a matter affecting him.
We do not mean to suggest that Fabi-ano’s conduct was proper or created no conflict of interest with his employer. Indeed, Fabiano’s conduct appears to implicate the Massachusetts Rules of Professional Conduct, see Supreme Judicial Court Rule 3:07, at least to the extent that it may have created an appearance of impropriety. Nor can we condone the bullheaded manner in which Fabiano defied the stated and obvious concerns of his superiors. He proceeded with his pro se filing with no apparent regard for their concerns. Nonetheless, reluctantly we conсlude that under the specific and unusual facts of this case, the City’s interest in an efficient workplace did not trump Fabiano’s First Amendment right to pursue his zoning suit.
c. Causation
In the third and final step in establishing a First Amendment violation, Fabiano must show that his protected speech was a substantial or motivating factor in the City’s decision to fire him.
See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
2. “Clearly established” right
Having concluded that Fabiano’s аllegations arguably suffice to state a First Amendment claim, we proceed to the second step of the qualified immunity analysis and consider whether Fabiano’s First Amendment right was “clearly established.” Saucier;
The nature of Fabiano’s First Amendment claim makes it extremely difficult for him to prove that this right was clearly established at the time his employment was terminatеd. “Because
Pickering
’s constitutional rule turns upon a fact-intensive balancing test, it can rarely be considered ‘clearly established’” for purposes of qualified immunity.
O’Connor,
The facts of this case do not prеsent the sort of unusual circumstances that would
We affirm the judgment of the district court as to all defendant-appellees.
Notes
. After investigation, defendants learned that Fabiano had not become one of the record owners of the property until after the original zoning decision had been made, just prior to the running of the appeals period.
. Fabiano's complaint in the Zoning Board action indicates that he and his mother signed the document separately, each pro se. Fabi-ano did not list his Board of Bar Overseers number on his signature line.
. In 1995, another Law Department attorney filed a pro se zoning appeal, but she apparently suffered no adverse employment consequences. Moreover, this attorney did not work for the Government Affairs Division and was not supervised by Hopkins, the policymaker at issue. Hence, this incident, taken together with Fabiano's termination, lacks sufficient commonality to form a pattern or practice.