134 F.3d 427 (1st Cir. 1997), 95-1950, Scott-Harris v. City of Fall River

Docket Nº:95-1950 to 95-1952 and 95-2100.
Citation:134 F.3d 427
Party Name:Janet SCOTT-HARRIS, Plaintiff, Appellee, v. CITY OF FALL RIVER, et al., Defendants, Appellants. Janet SCOTT-HARRIS, Plaintiff, Appellant, v. CITY OF FALL RIVER, et al., Defendants, Appellees.
Case Date:January 15, 1997
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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134 F.3d 427 (1st Cir. 1997)

Janet SCOTT-HARRIS, Plaintiff, Appellee,


CITY OF FALL RIVER, et al., Defendants, Appellants.

Janet SCOTT-HARRIS, Plaintiff, Appellant,


CITY OF FALL RIVER, et al., Defendants, Appellees.

Nos. 95-1950 to 95-1952 and 95-2100.

United States Court of Appeals, First Circuit

January 15, 1997

Heard Nov. 6, 1996.

Certiorari Denied March 9, 1998. See 118 S.Ct. 1184.

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[Copyrighted Material Omitted]

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Harvey A. Schwartz, Boston, MA, with whom Schwartz, Shaw & Griffith was on brief, for plaintiff-appellee.

Stephen C. Fulton, Natick, MA, with whom Law Office of Bruce R. Fox was on brief, for defendant-appellant City of Fall River.

Bruce A. Assad, Fall River, MA, for defendant-appellant Marilyn Roderick.

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Robert J. Marchand, Fall River, MA, with whom Driscoll, Marchand, Boyer & Stanton and Mary E. O'Neil were on brief, for defendant-appellant Daniel Bogan.

Before SELYA, Circuit Judge, ALDRICH, Senior Circuit Judge, and BOUDIN, Circuit Judge.

SELYA, Circuit Judge.

Although America began with the vision of a city on a hill, not every American has shared a sense of optimism about our nation's municipalities. Indeed, one of the most illustrious of the Framers regarded great cities as "pestilential to the morals, the health, [and] the liberties of man." Christopher Tunnard, The City of Man 34 (1970) (quoting Thomas Jefferson).

In this vein, American legal institutions have begun over time to view cities with a certain constitutionally based suspicion. Thus, in Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978), the Supreme Court ruled that municipalities could be held liable under 42 U.S.C. § 1983 for deprivations of federally protected rights which occurred "pursuant to official municipal policy of some nature." 1 Monell opened the floodgates for an outpouring of such suits against municipalities.

The case at hand is one example of the genre. At trial, a jury found the City of Fall River (the City) and two municipal officials liable under section 1983 for the passage of a facially neutral ordinance that abolished the plaintiff's job. The defendants' appeals raise a tantalizing question about whether a discriminatory animus displayed by fewer than the minimum number of city council members whose votes would be required to enact an ordinance can (or should) be imputed to the municipality itself. Other interesting questions abound, including questions dealing with causation in the context of constitutional torts and the availability of legislative immunity defenses in that setting. Before addressing any of these issues, however, we must parse Fed.R.App.P. 4(a)(6) for the first time and determine whether the defendants have brought their appeals in a timeous fashion.


Many of the facts in this case are conflicted. We present them as best they have presented themselves, occasionally resolving disparities as the jury permissibly might have done. See, e.g., Veranda Beach Club Ltd. Partnership v. Western Sur. Co., 936 F.2d 1364, 1375 (1st Cir.1991) (discussing standard for appellate review of post-verdict challenges to evidentiary sufficiency).

The City hired the plaintiff, Janet Scott-Harris, as the administrator of the newly created Department of Health and Human Services (HHS). When Scott-Harris entered the City's service in 1987, she became the first African-American ever to hold a managerial position in the municipal government. By all accounts she performed quite well at HHS. Withal, she did not enjoy a problem-free relationship with the City's political hierarchs. In 1988, for example, she clashed with Marilyn Roderick, the vice-president of the City Council. Scott-Harris believed that Roderick made inappropriate references to an aspirant's ethnicity in the course of an employment interview and stormed out of the room. Shortly thereafter, she engaged in a shouting match with Roderick. When Scott-Harris subsequently attempted to apologize, Roderick hung up the telephone.

Scott-Harris' difficulties with Roderick did not end with the aforedescribed incident. There were periodic flare-ups--by way of illustration, Roderick wrote a letter to the City Administrator, Robert Connors, protesting

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Scott-Harris' use of a City-owned motor vehicle--but it was Scott-Harris' reaction to the dysphemisms spouted by Dorothy (Dot) Biltcliffe, a nutrition program assistant for the City's Council on Aging (COA), that precipitated internecine warfare. In the fall of 1990, Scott-Harris learned that Biltcliffe had been making offensive comments. In one instance, referring to her co-worker Paula Gousie and to Scott-Harris, Biltcliffe remarked: "That little French bitch has her head up that nigger's ass." In another, Biltcliffe referred to a secretary as "a little black bitch." Scott-Harris spoke out against this racist invective and, because COA operated under her general supervision, she consulted with Connors and then drew up a set of charges against Biltcliffe as a prelude to dismissal.

The pendency of these charges did not improve Biltcliffe's manners; she called Scott-Harris "a black nigger bitch" and warned that there would be repercussions because Biltcliffe "knew people." Biltcliffe unabashedly pressed her case with two city councilors (Roderick and Raymond Mitchell) and a state senator who, in turn, called Roderick. After numerous postponements the City held a hearing on March 27, 1991. This resulted in a settlement under which Biltcliffe agreed to accept a 60-day suspension without pay. Mayor Daniel Bogan subsequently intervened and pared the punishment substantially.

During this time frame the City's financial outlook worsened. Municipal officials anticipated that state aid would decline up to 10% in the next fiscal year (July 1, 1991 to June 30, 1992). Mayor Bogan directed Connors to prepare a list of proposed budget cuts to accommodate the anticipated reduction in funding. Connors asked his department heads, including Scott-Harris, for their input. Scott-Harris recommended reducing the hours of school nurses. Bogan rejected this suggestion and, over Connors' objection, insisted that Scott-Harris' position be eliminated.

Because the post had been created by municipal ordinance, its abolition necessitated the same procedural formalities. The City Charter requires the votes of a majority of the nine members of the City Council for passage of such an ordinance. The mayor often submits proposed legislation to the City Council, and, in addition, he must approve every enacted ordinance (or else the Council must override his veto). In February 1991 Bogan asked the Council to do away with Scott-Harris' position. On March 5 the ordinance committee, chaired by Roderick, reported out an emendatory ordinance designed to achieve this end and recommended its passage. Three weeks later the City Council voted six-to-two (Roderick voting with the majority) to approve the position-elimination ordinance. Bogan signed it into law.

At about the same time that he moved to incinerate Scott-Harris' job, Bogan offered her a different portfolio--Public Health Director--which paid approximately $12,000 less per annum. Scott-Harris accepted the offer by letter dated February 28, 1991, but a follow-up communique from Bogan added extra duties and shifted Scott-Harris to a less desirable office. Disappointed, Scott-Harris drafted a letter rejecting the job offer. That letter mysteriously arrived at the mayor's office and was acted upon by Bogan despite Scott-Harris' efforts to retract it. Scott-Harris' tour of duty with the City ended on March 29, 1991--two days after the hearing that led to Biltcliffe's suspension. She filed suit several months later.


Solon, the fabled Greek legislator, once characterized the best type of city as one "in which those who are not wronged, no less than those who are wronged, exert themselves to punish the wrongdoers." Plutarch, Plutarch's Lives 455 (Bernadotte Perrin trans., 1914). Here, the plaintiff's complaint alleged in substance that the City and certain municipal officials 2 inverted the Solonic ideal:

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when the plaintiff responded forcefully (but appropriately) to Biltcliffe's racial slurs, the defendants sided with the wrongdoer and instead punished Scott-Harris by ousting her from her position under a blatant pretext. The plaintiff alleged that, in so doing, the defendants abridged her First Amendment rights and set the stage for redress under section 1983. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977) (explaining that in order to prevail on a section 1983 claim based on the First Amendment, the plaintiff must prove that her protected speech was a substantial or motivating factor in the decision to eliminate her job).

At trial the defendants asserted that their motives in passing the challenged ordinance were exclusively fiscal. The plaintiff disagreed, contending that racial animus and a desire to punish her for protected speech, not budgetary constraints, spurred the introduction and passage of the ordinance. On May 26, 1994, evidently persuaded by the plaintiff's efforts to connect Dot to her dismissal, the jury returned a verdict against all three defendants. 3

The verdict form memorialized the jury's conclusions (1) that the plaintiff's constitutionally protected speech was a substantial or motivating factor both in Bogan's decision to recommend enactment of the ordinance and in Roderick's decision to work for its passage, and (2) that these actions proximately caused the extirpation of the HHS director's position. As originally returned, the verdict form added an inconvenient wrinkle; it indicated that the plaintiff had not proven that the City's professed desire to enact the ordinance...

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