DIANE LAWLESS v. TOWN OF FREETOWN, et al.
No. 21-1251
United States Court of Appeals For the First Circuit
March 22, 2023
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before Kayatta and Howard, Circuit Judges, and Walker, District Judge.*
Joseph A. Padolsky, with whom Louison, Costello, Condon & Pfaff, LLP was on brief, for appellants.
Chip Muller, with whom Muller Law, LLC was on brief, for appellee.
I.
Plaintiff-Appellee Diane Lawless served as Treasurer of the Town of Freetown for roughly two years beginning in 2013 and ending in 2015. Her contract called for a three-year term of employment, terminable only for cause following a six-month probationary period. The Town of Freetown is governed by a Board of Selectmen. The board members took exception to Lawless‘s continued tenure, arranged for her to receive notice of perceived shortcomings, placed her on administrative leave, and eventually instituted disciplinary proceedings based on a notice reciting
Lawless filed an action in Bristol County Superior Court naming as defendants the Town of Freetown and (now former) board members Lee Baumgartner, Lisa Pacheco, and Paul Sadeck. The individual board members are the Appellants herein.1 Lawless included in her complaint a claim alleging deprivation of her right to procedural due process, citing
Following the close of discovery, the board members joined with the Town in seeking summary judgment against Lawless‘s due process claim, contending for their part that the doctrine of qualified immunity shielded them from Lawless‘s
The district court called thе summary judgment motion for oral argument on February 26, 2021. In the limited time available for argument, the parties argued only their respective positions on the merits of Lawless‘s state law libel claim and her due process claim; they did not address either the board members’ qualified immunity defense or Lawless‘s waiver contention.
The district court issued its summary judgment ruling in a memorandum and order dated March 9, 2021. Lawless v. Town of Freetown by & through Thomas, No. 18-cv-11089-IT, 2021 WL 878083 (D. Mass. Mar. 9, 2021). In its ruling, the court opted to proceed directly to the merits of the qualified immunity defense, neither relying on nor even mentioning the waiver argument. Based on its discussion of the merits of the procedural due process claim, which it found supported on the summary judgment record, the court quickly rejected the board members’ argument for qualified immunity, concluding that it is clearly established that a “sham” disciplinary hearing does not satisfy due process.
The board members (“Appellants“) filed a timely notice of appeal in which they argued that the district court erred in its denial of their qualified immunity defense.
II.
This Court has jurisdiсtion over the Appellants’ interlocutory appeal of the district court‘s “denial of summary judgment on qualified immunity only insofar as
A.
Because Lawless‘s waiver argument logically precedes analysis of the merits, we pause to consider it before turning to the district court‘s qualified immunity ruling. The Appellants did not assert in their answer the affirmative defense of qualified immunity. Lawless argued in her summary judgment opposition that the failure to timely plead the defense amounted to waiver. The Appellants did not file a reply to that challenge. Nor did they seek leave to amend their answer.
As an affirmative defense, qualified immunity can be waived or, more precisely here, forfeited.2 Guzman-Rivera v. Rivera-Cruz, 98 F.3d 664, 667 (1st Cir. 1996); Buenrostro v. Collazo, 973 F.2d 39, 44 (1st Cir. 1992).
Despite this otherwise stern admonition, in Knapp Shoes this Court reserved the issue of whеther a district court may excuse a failure to plead “if ‘a plaintiff receives notice of an affirmative defense by some means other than pleadings’ and is not prejudiced by the omission of the defense from the initial pleading.” Id. (quoting Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1445 (6th Cir. 1993)).3 Since Knapp Shoes, this Court has articulated
the standard to allow a district court to excuse a failure to timely plead where (1) “the defendant asserts [the affirmative defense] without undue delay and the plaintiff is not unfairly prejudiced by any delay,” or (2) “the circumstances necessary to establish entitlement to the affirmative defense did not obtain at the time the answer was filed.” Davignon v. Clemmey, 322 F.3d 1, 15 (1st Cir. 2003).
If there is an exception to
Given the Appellants’ delay in raising the defense of qualified immunity and their failure to defend that delay4, the district court in its discretion could have deemed the defense forfeited for purposes of summary judgment. The district court, however, opted not to rely on any waiver or forfeiture. On appeal, Lawless fails to argue either that the district court abused its discretion in so proceeding or that that she was prejudiced by any delay in raising the defense. Accordingly, like the district court, we proceed to the merits.
B.
We review a district court‘s denial of summary judgment on qualified immunity grounds de novo. Estate of Rahim by Rahim v. Doe, 51 F.4th 402, 410 (1st Cir. 2022). However, we credit the district court‘s factual assessment that the record, viewed in the light most favorable to Lawless, the nonmoving party, would support the finding that the Appellants were seriously biased against her continued employment by the Town. See Valdizán v. Rivera-Hernandez, 445 F.3d 63, 65 (1st Cir. 2006). Nonetheless, “we
remain free to examine, on an interlocutory appeal, whether [a] fact makes any cognizable legal difference.” Id.
Diane Lawless contends that the appellants violated her right to due process of law because they harbored biases against her yet still presided at the only due process hearing afforded to her by the Town of Freetown. For their part, the Appellants argue they are entitled to qualified immunity because they provided Lawless a fulsome, three-day, pretermination process replete with notice of the charges and possible consequences, the opportunity to cross-examine and call witnesses, and the opportunity to respond and advocate for herself, both in her own words and through the closing argument of counsel. They argue that they are shielded by qualified immunity because no reasonable board member would appreciаte that this kind of process was deficient, even if the decisionmakers arrive at the hearing predisposed to terminate the employee.
The district court rejected the idea that biased decisionmakers might provide adequate pretermination procedural due process based on its determination that the facts viewed in the light most favorable to Lawless would permit a jury finding “that the Board had made up its mind to terminate Lawless prior to the hearing and that no evidence she presented would have changed the result.” Mem. & Order at 20. Among other facts shedding light on this ruling, the district court noted several disparaging comments
that the Appellants made prehearing, one board member‘s remark
When government officials are sued in their individual capacities for money damages, the doctrine of qualified immunity shields them from pecuniary liability unless their conduct violated “clearly established statutory or constitutional rights of which a reasonable person would hаve known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). To assess an official‘s bid for qualified immunity, we may begin by determining whether the conduct in question violated a federal statutory or constitutional right. Alternatively, we may begin by determining whether the unlawfulness of the conduct was clearly established at the time. Punsky v. City of Portland, 54 F.4th 62, 65-66 (1st Cir. 2022). The latter inquiry has “two related aspects,” Rocket Learning, Inc. v. Rivera-Sanchez, 715 F.3d 1, 9 (1st Cir. 2013), namely: (1) the relative clarity of the governing law to a reasonable official
on the date of the alleged wrong and (2) whether the specific characteristics of the situation confronted by the official would have made it cleаr to a reasonable official how the governing law applied in the given situation. Punsky, 54 F.4th at 66. Together, these aspects of the inquiry must persuade us that available precedent placed the legal question beyond debate such that any reasonable official would have appreciated the illegality of the conduct in question. City & Cnty. of San Francisco v. Sheehan, 575 U.S. 600, 611 (2015). We take up the latter aspect of the qualified immunity analysis because it affords the most direct route to consideration of the clarity of thе governing law and resolution of the appeal.
To begin, the parties do not dispute that Lawless was entitled under Massachusetts law to due process in connection with the for-cause termination of her employment contract with the Town of Freetown. Given this premise, it was clearly established that the essential components of a pretermination due process hearing were “oral or written notice of the charges against [her], an explanation of the emplоyer‘s evidence, and an opportunity to present [her] side of the story.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). It was also clearly established that “[t]o require more than this prior to termination would intrude to an unwarranted extent on the government‘s interest in quickly removing an unsatisfactory employee.” Id. Based on
our review of the summary judgment recitation of facts provided by Lawless and the district court, the pretermination hearing in this case met all the essential requirements of predeprivation process.
Lawless disagrees because she contends that personal bias plugged the Appellants’ ears so that they did not actually hear her response. The district court based its ruling precisely on this notion. However, as far as the law is concerned, this notion was drawn a priori by Lawless‘s counsel and the district court; it was not clearly established in the law, at least not in this circuit and others.
Reasonable persons generally come to understand--instinctively as much as inductively--that the impartiality of decisionmakers
Yet, even in judicial proceedings absolute impartiality is not a constitutional mandate.
[V]arious situations have been identified in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable. Among these cases are those in which the adjudicator has a pecuniary interest in the outcome and in which he has been the target of personal abuse or criticism from the party before him.
Withrow v. Larkin, 421 U.S. 35, 47 (1975) (footnotes omitted). However, other than the “constitutionally [in]tolerable” situations identified by the Withrow Court, “most matters relating to judicial disqualification [do] not rise to a constitutional level.” FTC v. Cement Institute, 333 U.S. 683, 702 (1948). “[M]atters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion.” Tumey v. Ohio, 273 U.S. 510, 523 (1927); see also Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820 (1986). Stated otherwise, even when it comes to judicial officers, the constitutional threshold for disqualifying personal bias is not clearly established.
By comparison, the threshold for unconstitutional bias in pretermination government emplоyment proceedings is about as clear as mud. In fact, there is not even a basic requirement that hearing officers be impartial in the employment context. Chmielinski v. Massachusetts, 513 F.3d 309, 318 (1st Cir. 2008); Acosta-Sepulveda v. Hernandez-Purcell, 889 F.2d 9, 12 (1st Cir. 1989). To the contrary, it is clearly established that employing authorities may preside at termination hearings even though they
instituted the termination proceedings. Acosta-Sepulveda, 889 F.2d at 12 (listing Loudermill entitlements and observing that “it is not required that a hearing be conducted before an ‘impartial decisionmaker‘“). That kind of bias--essentially a predisposition to terminate an employee‘s contract--is precisely the kind of bias in play here.5
While this Circuit has openly questioned whether “the issue of bias can be addressed with an abstract broad statement that the due process standard of Loudermill either always or never requires that the hearing officer be unbiased,” Chmielinski, 513 F.3d at 317, such “abstract broad statements“--were they offered--would not serve as clearly established law for purposes of our qualified immunity inquiry.
such clear guidance that any reasonable official in the Appellants’ position would have been on notice that presiding at Lawless‘s termination hearing would violate the due process clause.6
Given that the clear legal statements available in binding precedent tend more to frustrate than support Lаwless‘s due process claim against the Appellants, we have little difficulty concluding that the doctrine of qualified immunity shields the Appellants from liability against Lawless‘s due process claim. Before ending our inquiry, we pause to transcribe a coda.
Lawless contends that her case is different because the Town of Freetown provided only one hearing, a pretermination hearing. In her understanding, Appellants should have known that a postdeprivation hearing would be needed if the prеtermination hearing was infected with personal bias, because the availability
of a state law postdeprivation remedy--be it a breach of contract claim or a claim for judicial review of administrative action--does not moot an otherwise ripe, federal procedural due process claim. The district court took note of the argument but chose not to address it. Contrary to Lawless‘s argument, neither the Supreme Court nor this Court has clearly established that the membership of a municipal board that conducts a pretermination proceeding must, independent of state law, arrange for a postdeprivation hearing before a neutral official whenever colorable allegations of bias have been or might be raised against them but the pretermination hearing otherwise met the full complement of Loudermill requirements.7
Furthermore, it is not clearly established in this circuit that postdeprivation remedies available under Massachusetts law are inadеquate to serve as a check against biased pretermination tribunals that honor Loudermill. While this Court has explained that a federal claim for a procedural due process violation is not automatically negated by the availability of a state law breach of contract claim, see Clukey v. Town of Camden, 717 F.3d 52, 61 (1st Cir. 2013) (collecting cases), in such
process deficiencies were manifest. See, e.g., id. at 60 (finding that the plaintiff did not receive “notice of any kind whatsoever” (emphasis in original)); Concepcion Chaparro v. Ruiz-Hernandez, 607 F.3d 261, 266 (1st Cir. 2010) (involving a stipulation that no pretermination process was afforded); Cotnoir v. Univ. of Maine Sys., 35 F.3d 6, 11-12 (1st Cir. 1994) (explaining that the summary judgment record reflected inadequate notice of both the charges and the proposed employment consequences and that there was no predeprivation reveal of the evidence used to justify termination); Collins v. Marina-Martinez, 894 F.2d 474, 480 (1st Cir. 1990) (explaining that the plaintiff “had no prior inkling of what type of information would be requested . . . [;] [n]o specification of charges . . . [;] no documents available to him[; and received an] interview last[ing] for 30 minutes“). See also Loudermill, 470 U.S. at 548 (emphasizing the failure to afford the plaintiffs in the consolidated appeals the opportunity to respond). In any event, as far as the board-member Appellants are concerned8, for reasons already explained a violation of clearly
established law is not manifested by a genuine issue of personal bias.9
The district court‘s order denying summary judgment on the federal claims against appellants is reversed, and the case is remanded for further proceedings.