Fabiano v. Hopkins

• Decision Date: 09 December 2003
• Docket Number: No. 03-1444.,03-1444.
• Citation: 352 F.3d 447
• Parties: Gerald FABIANO, Plaintiff, Appellant, v. Merita A. HOPKINS; Kevin J. Joyce; City of Boston, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 447

352 F.3d 447

Gerald FABIANO, Plaintiff, Appellant, v. Merita A. HOPKINS; Kevin J. Joyce; City of Boston, Defendants, Appellees.

No. 03-1444.

United States Court of Appeals, First Circuit.

Heard October 9, 2003.

Decided December 9, 2003.

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Gerald Fabiano, pro se, for appellant.

Christine M. Roach, with whom Roach & Carpenter, P.C., was on brief, for appellees.

Before HOWARD, Circuit Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Senior Circuit Judge.

STAHL, Senior Circuit Judge.

Pro se plaintiff-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., 294 F.3d 259, 265 (1st Cir.2002). In June 1994, Fabiano was appointed Assistant Corporation Counsel for the City. He served as a senior litigation lawyer in the Government Affairs Division and was an at-will employee. Defendant-appellee Kevin J. Joyce, the Director of Government Affairs, was Fabiano's immediate supervisor from December 1995 until his termination. Defendant-appellee Merita A. Hopkins was the Corporation Counsel.

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 Fabiano 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 contended that a variance had never been initially granted, and that the renewal, issued in error, permitted a sit-down restaurant to provide take-out services, thus diminishing the limited parking supply on his residential street. Plaintiff's mother, who owned a different abutting property, joined him in the action. Like Fabiano, she represented herself.

When Fabiano notified Joyce of the litigation, Joyce immediately responded that his action in taking the appeal presented a conflict of interest and strongly advised Fabiano to retain separate counsel. In the district court, Joyce testified that Fabiano told him that he was representing himself and family members, while Fabiano claimed he told Joyce he was only representing himself.² According to Fabiano, Joyce angrily told Fabiano that he had to pick which side he was on and said that the litigation violated Mass. Gen. L. ch. 268A, the state ethics law.

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 Fabiano 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 defendant 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, 245 F.Supp.2d 305, 312 (D.Mass. 2003). The district court held that Fabiano's litigation pertained to a matter of public concern "in only a most limited sense." Id. at 311 (quoting Connick v. Myers, 461 U.S. 138, 154, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). Even if Fabiano's conduct were protected by the First Amendment, the court continued, the constitutional concern was outweighed by "the valid workplace concern of the Corporation Counsel that Fabiano should have consulted with his supervisor before initiating this litigation, and sought to minimize any actual conflicts or appearance of conflicts." Id. at 312. This appeal followed.

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, 328 F.3d 12, 17 (1st Cir.2003) (citing Fed.R.Civ.P. 56(c) (2003)). We review the district court's award of summary judgment de novo, construing the record in the light most favorable to Fabiano and resolving all reasonable inferences in his favor. Id.

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, 175 F.3d 178, 184 (1st Cir.1999). Although the district court ruled only on the merits of Fabiano's First Amendment claims, we take a somewhat different approach, holding that neither the City of Boston nor the individual defendants may be liable pursuant to 42 U.S.C. § 1983.

A. Municipal liability pursuant to 42 U.S.C. § 1983

In an action pursuant to 42 U.S.C. § 1983, there can be no municipal liability under a respondeat superior theory. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Rather, to establish liability against the City, Fabiano must prove deprivation of a constitutional right by means of "the execution of the government's policy or custom." City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); see also Monell, 436 U.S. at 690-94, 98 S.Ct. 2018.

Hopkins is the relevant policymaker for the purposes of our § 1983 analysis, as the decision to terminate Fabiano's employment ultimately resided with her. Fabiano 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, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). Such a result would be the equivalent of imposing respondeat superior liability upon the municipality. Id. Fabiano's termination stands alone as a unique incident of alleged misconduct and does not, as a matter of law, suffice to ground § 1983 liability against the City.

B. Individual liability and qualified immunity

The individual defendants, Hopkins and Joyce, assert an affirmative defense of qualified immunity. Qualified immunity is intended to shield public officials "from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). "Where the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive." Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

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;...