Lewis v. City of Boston

• Decision Date: 28 January 2003
• Docket Number: No. 02-1495.,02-1495.
• Parties: Murphy A. LEWIS, Plaintiff, Appellant, v. CITY OF BOSTON, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

321 F.3d 207

Murphy A. LEWIS, Plaintiff, Appellant, v. CITY OF BOSTON, Defendant, Appellee.

No. 02-1495.

United States Court of Appeals, First Circuit.

Heard November 7, 2002.

Decided January 28, 2003.

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Ozell Hudson, Jr., with whom Anthony W. Neal, was on brief, for appellant.

James M. Chernetsky, Assistant Corporation Counsel, for appellee.

Before LIPEZ, Circuit Judge, COFFIN and STAHL, Senior Circuit Judges.

STAHL, Senior Circuit Judge.

Plaintiff-appellant Murphy A. Lewis ("Lewis") brought this action against the City of Boston ("City"), claiming that the City first discharged him and then failed to hire him for a newly created position because of his race in violation of Mass. Gen. Laws ch. 151B, § 4(1) and because of his public statements regarding inadequate funding for the City's music programs in violation of the First Amendment. The district court granted summary judgment in the City's favor. We affirm.

I

Lewis, an African-American male, has been employed by the City in the Boston Public Schools ("BPS") from 1975 through the present, and served as city-wide Music Director from 1995 through August 1999. The City initially employed Lewis as a music instructor from 1975 to August 18, 1995, at which time the City appointed him as acting Music Director; on January 15, 1998, the City appointed him as permanent Music Director. As Music Director, Lewis was responsible for implementing and developing policy relating to music education, overseeing music curriculum development, supporting ninety-two music teachers, conducting inventories of musical instruments, organizing the Martin Luther King, Jr. celebration, and serving as liaison between the BPS and various music organizations in the City.

The Music Director was one of ten Senior Program Directors in the Department of Curriculum and Instructional Practices ("Curriculum Department"), all of whom reported to the Director of the Department, Sid Smith ("Smith"), a white male. Smith reported directly to Timothy Knowles ("Knowles"), Deputy Superintendent for Teaching and Learning. In 1999, of these ten directors, four were African-American, one was Asian, and five were white.

During his tenure as Music Director, Lewis was a public advocate for increased funding for music education, particularly instrumental music instruction.¹ In a November 25, 1997 article, the Boston Herald reported that Lewis desired to expand instrumental music instruction and that to do so he proposed hiring new music instructors to travel among elementary and middle schools. Sometime in 1998, Lewis reduced this proposal to writing and shared it with a City Councilor. The proposal stressed that the City was in non-compliance with its own Arts Policy by not offering instrumental music instruction. To come within compliance, the proposal recommended that the City hire twenty new teachers at an approximate cost of $1,000,000, as part of a revived Itinerant Music Program. Lewis did not speak to his supervisors before sharing his written proposal with the City Councilor. According to Lewis, shortly thereafter, Smith told Lewis that the Superintendent, Thomas Payzant, was very upset with Lewis for speaking to the City Councilor.² Smith also testified that he expressed his concern that Lewis should think about whether he was violating established protocol by talking to city council members about budget-related matters without first consulting Payzant.

Lewis was also quoted in a February 1, 1999 Boston Globe article. The City's press office had directed the Boston Globe reporter to Lewis. The article reported that instruments lay dormant in a warehouse, many of which had "rotted in the eight years since funding for instrumental music instruction was eliminated from the city's school budget." The article did not reveal, and Lewis did not know, the source of this information. Lewis was quoted as stating that the school system was trying to inform teachers of the existence and location of the instruments. The article also discussed Lewis's desire to revive the Itinerant Music Program. Lewis discussed the article with Smith and Payzant, and neither of them expressed any negative comments. In March 1999, with Payzant present, Lewis addressed a City Council hearing, discussing the need for greater funding for music programs.

In late spring of 1999, the City instituted a system-wide reduction in force to fund transition programs³ in literacy and mathematics, and to prepare students for the impending Massachusetts Comprehensive Assessment System tests ("MCAS"). Smith decided, with the approval of Knowles and Payzant, to eliminate the Music Director position and to spread Lewis's duties to other positions. The reorganization contemplated the creation of a new position, which consolidated the bulk of the Music Director duties with the day-to-day school responsibilities held by the Director of the Roland Hayes Division of Music⁴, who would report directly to Knowles, rather than to Smith, as Lewis did. The Arts Director would assume the remaining responsibilities. By letter dated May 14, 1999, Payzant notified Lewis that the City was eliminating his position due to budget cuts. In addition to eliminating Lewis's position, the City terminated thirty-one other relatively high-level, supervisory employees.

The City posted the revised Roland Hayes position three times. Qualified candidates were required to have a master's degree and school-based management experience. The City formed a screening committee that reviewed applications and selected qualified candidates for interviews. A diverse group, the screening committee consisted of three African-Americans, one Hispanic, and one white. Although Lewis did not have a master's degree, he applied for the position, but was not selected for an interview. Instead, the City selected four candidates for interviews, including three African-Americans, all with the requisite master's degree and school-based management experience. The City did not hire any of the candidates, re-posted the position, and decided to keep Greg Gozzola, the teacher who had been filling in for Winfrey, as acting Director of Roland Hayes for the following academic year. Some of the district-wide responsibilities formerly held by Lewis were assumed by the Arts Director, Kathy Tosolini ("Tosolini"), a white female, and the remainder, such as the Martin Luther King, Jr. celebration, were assumed by other employees.

In 2000, the City re-posted the position, but reduced the district-wide responsibilities; Tosolini and others continued to cover those functions. Even though Lewis still did not have a master's degree,⁵ the City mailed to him a written invitation to interview and called him to confirm on the morning it was scheduled. Lewis failed to appear for the interview, claiming that he never received the invitation and that by the time he received the call, he had a prior commitment. His interview was not rescheduled. Ultimately, the City offered the position to an African-American, but he declined. The position was re-posted, and remained unfilled at the time of the district court's summary judgment ruling.

II

Lewis filed this civil suit against the City, alleging that, by eliminating his position and failing to hire him for the Roland Hayes position, the City retaliated against him for his public statements in violation of the First Amendment and because of his race in violation of Mass. Gen. Laws. ch. 151B, § 4. The district court granted summary judgment in favor of the City, finding that Lewis had adduced insufficient facts to support either claim.

III

We review the district court's grant of summary judgment de novo, viewing the facts in the light most favorable to Lewis, the nonmoving party, and drawing all reasonable inferences in his favor. Feliciano De La Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir.2000).

A. Mass. Gen. Laws ch. 151B, § 4(1)

To prevail on his chapter 151B claim, Lewis must prove that he "is a member of a protected class, [he] suffered harm as a result of [the City's] adverse employment action, and the [City] harbored discriminatory animus, which was the determinative cause of the adverse action." Weber v. Community Teamwork, Inc., 434 Mass. 761, 775, 752 N.E.2d 700 (2001). Because Lewis relies upon circumstantial evidence of discrimination, we employ a familiar three-stage, burden-shifting paradigm first set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107, 116-18, 731 N.E.2d 1075 (2000). Lewis bears the initial burden of establishing a prima facie case of discrimination; doing so creates a presumption of discrimination. Id. at 116, 731 N.E.2d 1075. The burden then shifts to the City to rebut the presumption by advancing a legitimate nondiscriminatory reason for the employment decision. The City's obligation is one of production as opposed to persuasion, as the burden of persuasion remains with Lewis. Id. at 117, 731 N.E.2d 1075. If the City meets its burden, the presumption of discrimination disappears. The burden returns to Lewis to establish that the basis of the City's decisions was unlawful discrimination, by adducing evidence that the reasons given by the City for its actions were mere pretexts to hide such discrimination. Id. at 118, 731 N.E.2d 1075.

1. Elimination of the Music Director

We first decide whether Lewis established a prima facie case, mindful that the purpose of doing so is to eliminate the "most common nondiscriminatory reasons" for an employment decision, from which a fact finder might reasonably conclude that the employer made its decision because of race. Id. at 116, 731 N.E.2d 1075. As Lewis was terminated as part of a district-wide reduction in force, he must show by a preponderance of the evidence that (1) he was a...