632 F.3d 9 (1st Cir. 2011), 08-2479, Barton v. Clancy

Docket Nº:08-2479.
Citation:632 F.3d 9
Opinion Judge:LIPEZ, Circuit Judge.
Party Name:Gordon BARTON, Plaintiff, Appellant, v. Edward J. CLANCY, Jr., individually and in his capacity as Mayor of the City of Lynn, Massachusetts, Defendant, Appellee.
Attorney:Harold L. Lichten, with whom Leah M. Barrault and Lichten & Liss-Riordan, P.C. were on brief, for appellant. John R. Hitt, with whom Cosgrove, Eisenberg & Kiley, P.C., and James Lamanna, Assistant City Solicitor, were on brief, for appellee.
Judge Panel:Before LIPEZ, STAHL, and HOWARD, Circuit Judges.
Case Date:January 14, 2011
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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632 F.3d 9 (1st Cir. 2011)

Gordon BARTON, Plaintiff, Appellant,


Edward J. CLANCY, Jr., individually and in his capacity as Mayor of the City of Lynn, Massachusetts, Defendant, Appellee.

No. 08-2479.

United States Court of Appeals, First Circuit.

January 14, 2011

Heard Oct. 7, 2009.

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[Copyrighted Material Omitted]

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Harold L. Lichten, with whom Leah M. Barrault and Lichten & Liss-Riordan, P.C. were on brief, for appellant.

John R. Hitt, with whom Cosgrove, Eisenberg & Kiley, P.C., and James Lamanna, Assistant City Solicitor, were on brief, for appellee.

Before LIPEZ, STAHL, and HOWARD, Circuit Judges.

LIPEZ, Circuit Judge.

Plaintiff Gordon Barton appeals from the district court's grant of summary judgment to defendant Edward J. Clancy, Jr., mayor of the City of Lynn, Massachusetts (City or Lynn). Barton brought claims against Clancy for disability harassment, Mass. Gen. Laws ch. 151B, § 4, and retaliation based on the exercise of his First Amendment rights, 42 U.S. C. § 1983.1 Barton's claims stemmed from an ongoing conflict between Clancy and Barton, an African-American who served as a firefighter for the City for nearly thirty years, until his involuntary retirement in 2004 due to a work-related back injury. During that time and in the years following his retirement, Barton was an outspoken representative of the firefighter's union and a vocal and frequent critic of City policies, and he participated in several lawsuits against the City raising claims of race discrimination and union contract violations. In addition to serving as a firefighter, Barton served by appointment as a volunteer on the City's Parks Commission beginning in 1996. After his disability retirement from the fire department, Barton was hired in the fall of 2006 as the boys' basketball coach for one of the City's public high schools.

In April 2006, Clancy declined to reappoint Barton to the Parks Commission. In the fall of 2006 and the spring of 2007, after Barton was hired for the basketball coaching job, Clancy publicly criticized Barton's ability to perform the job on the

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ground that he had retired because of disability, repeatedly called upon school officials to rescind his appointment, and initiated investigations into Barton's payment of taxes and his disability pension.

After careful consideration, we affirm the grant of summary judgment as to the state law disability harassment claim, which arises from Clancy's persistent public criticism of Barton following his appointment as basketball coach. We conclude that the mayor was not Barton's employer for purposes of the coaching job. Although a few Massachusetts decisions have imposed liability for workplace harassment on defendants who were not the plaintiff's employer, none have imposed liability on a non-employer where, as here, the alleged harasser was never physically present on the plaintiff's work site and none of the alleged harassing acts occurred at the plaintiff's workplace.

We likewise affirm the grant of summary judgment as to the First Amendment claim. Leaving for another day the question of whether Barton has demonstrated a First Amendment violation based on the non-reappointment to a volunteer position, we conclude that Clancy's refusal to reappoint Barton to the Parks Commission in retaliation for the exercise of his First Amendment rights was not a violation of clearly established law. We also conclude that Clancy is entitled to qualified immunity on Barton's First Amendment claim based on retaliatory harassment because we cannot say that a reasonable official in Clancy's shoes would have understood that his conduct violated Barton's constitutional rights.


We recount the facts with the summary judgment standard in mind, viewing the record in the light most favorable to the nonmoving party, Barton. Vé lez v. Thermo King de P.R., Inc., 585 F.3d 441, 444 (1st Cir.2009).

A. Barton's First Amendment Activities

Barton has spoken out against Mayor Clancy and the City on a number of occasions. He served as a firefighter for the City from 1976 until 2004. As president of the Lynn firefighter's union from 2000 until 2004, he was the " public face" of the union. In 2002, Clancy announced that the City would be laying off over thirty firefighters. In response, Barton had a series of meetings with Clancy and made statements to the local press expressing the union's position that the lay-offs would negatively affect the safety of Lynn citizens. Around this same time, Lynn firefighters picketed a fundraiser held by Clancy. Barton was present during the picketing and had a heated discussion with Clancy, in which Clancy stated to Barton, " [i]t shouldn't have come to this."

Barton also participated in several lawsuits against the City. In 2004, the firefighter's union filed a lawsuit against the City and Clancy, seeking funding for certain staffing clauses in the union contract. The union obtained an injunction against Clancy, ordering him to submit a funding request for the staffing clauses at issue. Also in 2004, Barton was involved in a complaint filed with the Massachusetts Commission Against Discrimination (MCAD) against the Lynn Water and Sewer Commission, challenging the Water and Sewer Commission's hiring practices as racially discriminatory. In 2005, Barton was involved in a class action lawsuit against the City, alleging that the civil service examination used to qualify and rank applicants for firefighter positions had a disparate impact on African-American and

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Hispanic candidates.2 Finally, in 2006, Barton agreed, based on his union sympathies, to be a plaintiff in a taxpayer lawsuit against the City and Clancy, which sought to block the transfer of custodial employees from the school department to the inspectional services department. Clancy was aware of Barton's involvement in these lawsuits and complaints against the City.

B. Barton's Retirement from the Fire Department

In 2004, after Barton suffered a work-related back injury, the Chief of the Fire Department filed an application for involuntary retirement with the Lynn Retirement Board asking that Barton be retired because he was " unable to perform his job now and in the future." The Lynn Retirement Board approved the application, concluding, based on findings from a medical panel that examined Barton, that he was " physically incapable of performing the essential duties of his job and that said incapacity is likely to be permanent." The Lynn Retirement Board granted Barton an accidental disability retirement pension. Although Barton's back injury renders him physically unable to perform his job as a firefighter, it does not prevent him from doing other kinds of jobs, and he is physically able to work as a basketball coach.

C. Barton's Non-Reappointment to the Lynn Parks Commission

Barton was appointed to serve on the Lynn Parks Commission in 1996, and was reappointed in 2000, prior to Clancy's election as Mayor. The Lynn Parks Commission has general supervisory powers over the City's parks and playgrounds. There is no monetary compensation for service on the Parks Commission. Barton explained that the primary benefit he received from serving on the Parks Commission was the opportunity to help people.

Barton served on the Parks Commission under his 2000 appointment until April 10, 2006, when he received a one-sentence letter from Clancy thanking him for his service on the Commission. Clancy testified in deposition that he decided not to reappoint Barton in 2006 because Barton had not requested reappointment. Clancy had not asked Barton whether he was interested in reappointment, and could not recall whether the individual who replaced Barton had requested appointment.

D. Barton's Appointment as Basketball Coach

In the fall of 2006, the boys' basketball coach at Lynn English High School resigned, leaving an immediate vacancy. On November 28, 2006, Clancy met with Superintendent of Lynn Public Schools Nicholas Kostan, Lynn English Principal Andy Fila, and members of the School Committee to discuss hiring a replacement coach. Clancy left before the close of the meeting, and was informed later that afternoon that Superintendent Kostan, upon Principal Fila's recommendation, had hired Barton as interim coach for the 2006-2007 basketball season.

On the following day, November 29, Clancy hand-delivered a letter to Principal Fila strongly criticizing the decision to hire Barton and urging that Barton's appointment be rescinded. The November 29 letter stated, inter alia:

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To my utter astonishment, Superintendent Nick Kostan called me later that afternoon to inform me you had chosen, and he had approved the choice of Gordon " Buzzy" Barton to be the interim basketball coach. It is my understanding that Mr. Barton is receiving an accidental disability retirement pension from the City of Lynn because of a chronically-disabling injury. To me, it is oxymoronic to choose a person for this position who is receiving a pension, based on an accidental disability due to a possibly disabling physical injury. It is an insult to the intelligence of the taxpayers of this city.


Mr. Barton may possess many redeeming qualities. However, a person receiving a disability pension does not fit the mold for a vigorous individual that is implicit in the qualifications of being a basketball coach.... I believe you should immediately rescind this appointment. Personally, since this is an interim appointment, a stable, established person with coaching experience at the high school level should be chosen.

Despite Clancy's protests, Barton remained employed as the interim basketball coach. At the close of a successful 2006-2007...

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