Silva v. Worden

• Decision Date: 08 October 1997
• Docket Number: No. 96-2165,96-2165
• Citation: 130 F.3d 26,1997 WL 713952
• Parties: Kenneth SILVA, Plaintiff, Appellant, v. Lawrence D. WORDEN, Individually and as Commissioner for the City of New Bedford Department of Public Works, Rosemary Tierney, as Mayor, and the City of New Bedford, Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 26

130 F.3d 26

Kenneth SILVA, Plaintiff, Appellant, v. Lawrence D. WORDEN, Individually and as Commissioner for the City of New Bedford Department of Public Works Rosemary Tierney, as Mayor, and the City of New Bedford, Defendants, Appellees.

No. 96-2165.

United States Court of Appeals First Circuit.

Heard Oct. 8, 1997.

Decided Nov. 20, 1997.

Philip N. Beauregard, with whom Law Offices of Beauregard & Burke was on brief, for appellant.

Kevin J. Finnerty, Assistant City Solicitor, with whom Peter J. Thomas, Assistant City Solicitor was on brief, for appellees.

Before TORRUELLA, Chief Judge, LYNCH, Circuit Judge, and STEARNS, ^* District Judge.

LYNCH, Circuit Judge.

Kenneth Silva appeals from a directed verdict on his claims alleging violations of the First and Fourteenth Amendments. The First Amendment claims are that Silva was subjected to a ban on parking cars in a city employee parking lot when the cars carry political roof rack signs, that the ban was selectively enforced against him, and that the termination of his city employment was in retaliation for his support of his wife's political candidacy for city office when she ran against a candidate whom the mayor supported. The Fourteenth Amendment claim is that Silva's liberty or property interests under the Due Process Clause were violated when he was not given a name-clearing hearing before his employment was terminated for pushing another city employee.

At the close of plaintiff's evidence, defendants moved for a directed verdict. The district court took the motion under advisement and then, at the close of all evidence, directed a verdict against the plaintiff as to the roof rack ban, selective enforcement, and due process claims. The court let the retaliatory firing claim against defendant Worden go to the jury, which held in favor of the defendant. The retaliatory firing claim against the City of New Bedford and Mayor were dismissed. Silva appeals the directed verdict, but not the jury finding against him on his retaliatory firing claim. We affirm. In so doing, we hold that the roof rack ban was not a custom or practice so well established as to be attributable to the City through its policy-making officials. We further hold that Silva's termination did not occur under circumstances entitling him to a hearing.

I

Silva was hired by the City as an employee in the Department of Public Works on May 24, 1993. Silva was a probationary employee; as such he could not obtain full civil service status until six months after the date of his hiring. In June 1993, Ramone Silva, Silva's wife, announced her intention to run for election as City Councilor for Ward 4. Mrs. Silva was one of five candidates who sought election to this vacant seat. The leading candidate in this campaign was Joseph Fortes, a political ally of defendant Rosemary Tierney, the Mayor of New Bedford. Defendant Lawrence Worden, the DPW Commissioner, and Jose Pontes, the DPW Superintendent and manager of the city yard, were also supporters of Mayor Tierney.

Because she was a write-in candidate and not on the ballot, Mrs. Silva relied heavily on signs to bring herself to the attention of voters. Such a write-in campaign is unusual in New Bedford, so Mrs. Silva's efforts received much publicity. Silva vigorously supported his wife's candidacy and worked on her behalf. Pictures of Silva and his wife were widely distributed in campaign literature and published in area newspapers.

Silva worked for the DPW without incident until September 23, 1993, when Silva went to the supply area to get work gloves and was ignored by the supply clerk, Timothy Lobo. Lobo, a supporter of Mayor Tierney, knew that Silva's wife was campaigning against Fortes. Lobo refused to give any gloves to Silva, telling him he "was not important." When Silva later approached Lobo to discuss the incident, a physical altercation resulted in which Silva pushed Lobo. While no one was injured and the incident was treated by both parties as "no big deal," Lobo reported the incident to Pontes.

Pontes called Silva to his office and chastised Silva for the incident. Pontes also told Silva to remove his car from the city yard, where Silva had parked. The city yard is a large area, primarily containing the DPW Highway Department, where DPW employees commonly park. Silva's car had a roof rack advertising his wife's candidacy for City Councilor. Pontes told Silva that city policy prohibited employees from parking cars with political roof rack signs in the city yard. There was evidence that other DPW employees had parked their personal cars in the city yard with political roof rack signs advocating other candidates for public office. Some DPW employees also had bumper stickers on their cars. But no other person, except Silva, has recently been instructed to move his or her car. Silva relocated his car and never parked in the city yard again.

Pontes, as DPW Superintendent, was second in the DPW heirachy below Worden. Commissioner Worden, not Superintendent Pontes, ran the agency. Pontes supervised the day-to-day operations of the DPW. While Worden had formal authority over the city yard, Pontes administered the yard on a daily basis, a responsibility traditionally exercised by the DPW Supervisor.

On September 24, 1993, Pontes gave Silva a written warning indicating that Silva "pushed Tim Lobo" and recommending that Silva's probation be extended. Silva refused to sign the warning. Pontes sent a copy of the warning to the union steward and placed a copy in Silva's personnel file. Although Pontes instructed Silva that he would be given a hearing before Worden, as was customary practice for probationary employees, Silva was never contacted by Worden for this purpose.

On October 7, 1993, Silva received a letter signed by Worden discharging him because of the events giving rise to the warning. Worden never spoke to Silva about the discharge and declined to grant Silva a hearing at which Silva might defend himself. Silva was unable to find other work for two years. On election day, 1993, Mrs. Silva defeated Fortes for the Ward 4 seat.

In April 1994, Silva sued the City, Mayor Tierney, and Worden under 42 U.S.C. § 1983 and Mass. Gen. Laws ch. 12 § 11H, I (the state civil rights acts), claiming that the roof rack ban violated the First Amendment, that it was selectively enforced against him, that he was discharged in retaliation for his support of his wife's candidacy, and that the City's failure to provide him a name-clearing hearing prior to his discharge violated his liberty interests under the Due Process Clause of the Fourteenth Amendment.

At trial, Commissioner Worden testified that Pontes had informed him there was a longstanding city "policy" set by the DPW Superintendents prohibiting political roof rack signs in the city yard, although Worden also testified that he had no knowledge of any such practice until after Silva had filed suit against the City. Pontes testified that the policy had been first instituted by a DPW Superintendent in the 1970's and was continued by later Superintendents, including Pontes. Pontes and Lobo both testified that they remembered past incidents of people being asked to move their cars on account of political roof racks.

At the close of Silva's case, defendants moved for a directed verdict. The court reserved ruling on the motion and instructed the defendants to proceed with their case, "understanding that I'll be judging the evidence as of this point, without considering the evidence that you introduce, rather than keep the jury waiting." After the defendants completed presenting their evidence, they renewed their motion for directed verdict, which the court granted. The court let the retaliatory firing claim go to the jury, which found in favor of Worden, the sole remaining defendant.

II

In reviewing a directed verdict under Fed.R.Civ.P. 50(a), "we take the evidence most favorable to the losing party and ask de novo whether a reasonable jury had inevitably to decide in favor of the victor." Abraham v. Nagle, 116 F.3d 11, 13 (1st Cir.1997).

We consider all evidence offered during trial, including evidence introduced by the defendants. We do this notwithstanding the defendants' motion for directed verdict at the end of Silva's case and the court's statement that it would rule, although at the close of all evidence, only on the plaintiff's evidence. The court's reservation on the initial motion at the end of Silva's case acted as a denial of the motion, upon which the City had the choice of either standing on its motion or proceeding with its evidence. The defendants chose to proceed with their evidence, and this court must now view all of the evidence presented. See Gillentine v. McKeand, 426 F.2d 717, 722-23 (1st Cir.1970); A & N. Club v. Great American Ins. Co., 404 F.2d 100, 103-104 (6th Cir.1968) (citing O'Malley v. Cover, 221 F.2d 156, 158-59 (8th Cir.1955)). Moreover, the court held that directed verdict was proper based both on Silva's evidence alone and on all evidence presented during the trial, thereby effectively making two separate rulings.

In reviewing a directed verdict, the appellate court "may not consider the credibility of witnesses, resolve conflicts in testimony, or evaluate the weight of the evidence." Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir.1987). "Nevertheless, the evidence to which the nonmovant points must comprise more than fragmentary tendrils: a mere scintilla of evidence is not enough to forestall a directed verdict, especially on a claim or issue as to which the burden of proof belongs to the objecting party." Fashion House, Inc. v. K mart Corp., 892 F.2d 1076, 1088 (1st Cir.1989) (citations omitted).

We repeat the procedural context. A jury heard and rejected the retaliatory firing claim. At issue here is the potential liability of the City on the other First Amendment claims and the due process claim. With this in mind, we face the central...