
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________            No.  96-2165                                    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.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Robert Collings, U.S. Magistrate Judge]                                           _____________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                Lynch, Circuit Judge,                                       _____________                            and Stearns,* District Judge.                                          ______________                                 ____________________                Philip N. Beauregard, with whom Law Offices of Beauregard                ____________________            _________________________            & Burke was on brief for the appellant.            _______                Kevin J.  Finnerty, Assistant  City Solicitor, with  whom                __________________            Peter  J. Thomas, Assistant  City Solicitor was  on brief for            ________________            appellees.                                 ____________________                                  November 20, 1997                                 ____________________                                            ____________________                 *  Of   the  District  of   Massachusetts,  sitting   by            designation.                      LYNCH, Circuit Judge.  Kenneth Silva appeals from a                      LYNCH, Circuit Judge.                             _____________            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                                          3            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                                          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                                          4            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                                          5            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                                          6            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,                                          7            "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                                          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.3d 717, 722-23  (1st Cir. 1970);            __________    _______                                          8            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 questions in this appeal: (1) whether Pontes is a            "policymaker" under Monell v. Department  of Social Services,                                ______    ______________________________            436 U.S. 658 (1978) and its progeny, (2) whether the City had            a "policy" or "custom" of banning political  roof rack signs,                                          9            and  (3) whether  Silva was  deprived  of a  liberty interest            under the Due  Process clause of the  Fourteenth Amendment by            the method  of his termination.   We answer each  question in            the negative.            A.  Municipal Liability                ___________________                      In   Monell,  the   Supreme  Court   held   that  a                           ______            municipality may not be held vicariously liable  under   1983            for  the torts  of an  employee solely  on the  basis of  its            employer-employee relationship with  the tortfeasor.  Id.  at                                                                  ___            691.  Instead,  a plaintiff seeking to impose  liability on a            municipality  under   1983 must identify a municipal "policy"            or a "custom" that caused  the plaintiff's injury.  See Board                                                                ___ _____            of County Comm'rs   of Bryan County v. Brown, 117 S.Ct. 1382,            ___________________________________    _____            1388 (1997);  Pembauer v.  Cincinnati, 475  U.S. 469,  479-81                          ________     __________            (1986); Monell,  436 U.S. at  694.  The disputed  "policy" or                    ______            "custom" must also  be the cause and moving  force behind the            deprivation  of  constitutional  rights.    See Bryan  County                                                        ___ _____________            Comm'rs,  117  S.Ct. at  1388.   Because  neither  policy nor            _______            custom is shown here, we do not reach the causation issue.                      A  municipality may be  held liable for  acts taken            pursuant to  a "policy  by at least  two methods:1   when the                                            ____________________            1.     Justice Souter,  in  his dissenting  opinion in  Bryan                                                                    _____            County Comm'rs, identifies three alternatives:  (1) where the            ______________            appropriate   office  promulgates   a  generally   applicable            statement of  policy  and the  subsequent  act is  simply  an            implementation  of the  policy; (2)  where no  rule  has been            announced but federal law has been violated by the act of the            policymaker itself; (3)  where the policymaker has  failed to                                          10            deprivation  resulted (1)  "from the  decisions  of its  duly            constituted  legislative body", or (2) from the decisions "of            those officials whose acts may fairly be said  to be those of            the   municipality."    Id.    In  such  cases,  "[m]unicipal                                    ___            liability  attaches only  where  the decisionmaker  possesses            final authority to establish municipal policy with respect to            _______________            the  action ordered."   Pembauer, 475  U.S. at  481 (emphasis                                    ________            added).                       Liability  may also be premised on a "custom" which            caused plaintiff's  injury.   In  particular, a  municipality            might be held liable when the plaintiff is injured by "an act            performed pursuant  to a 'custom' that has  not been formally            approved by  an appropriate decisionmaker [when] the relevant            practice  is so  widespread as  to  have the  force of  law."            Bryan  County Comm'rs,  117 S.Ct.  at  1388.   As this  court            _____________________            explained  in Bordanaro v.  McLeod, 871  F.2d 1151  (1st Cir.                          _________     ______            1989), one  method of showing  custom is to  demonstrate that            the custom or practice is so "wellsettled and widespread that            the policymaking officials of the municipality can be said to            have either  actual or constructive  knowledge of it  yet did            nothing to end the practice."  Id. at 1156.                                           ___                                            ____________________            act affirmatively at all,  so long as the need to control the            agents of government is so obvious, and the inadequacy of the            existing  practice  so  likely  to  result  in  violation  of            existing  right,  that the  policymaker  can  be  said to  be            "deliberatively  indifferent".    Bryan  County Comm'rs,  117                                              _____________________            S.Ct. at 1395.   None of this trilogy can be  said to be true            here.                                          11                      The  evidence  presented  in  this  case  does  not            demonstrate  the existence  of either  a policy  or a  custom            under   1983.   First, Pontes, the individual  who told Silva            he could not park in the city yard, is clearly not the "final            authority" in  the city yard.   The City Code of  New Bedford            specifically  provides  that  "[t]he  commissioner of  public            works under the  direction of the mayor and  the city council            shall . . . [h]ave the charge of the city yard . .  . ."  New            Bedford  City  Code     19-143;  see   also  Jett  v.  Dallas                                             __________  ____      ______            Independent School  Dist., 491  U.S. 701,  737 ("[W]hether  a            _________________________            particular official  has 'final policymaking  authority' is a            question of state law." (quoting St. Louis v. Praprotnik, 485                                             _________    __________            U.S. 112,  123 (1988))).   Thus Worden, as  DPW Commissioner,            was Pontes's superior in matters concerning the city yard and            ultimately  responsible for the manner  in which the yard was            run.  That Worden acknowledged  at trial that Pontes was "the            head  guy" at  the  yard is  insufficient,  without more,  to            demonstrate  that   Worden  delegated   final  decisionmaking            authority regarding the  yard to Pontes.  This  is especially            true in light of Worden's assertions at trial that Pontes, as            DPW Superintendent,  was "directly beneath my  position," and            that "I am the department head."                      We agree with the district  court's assessment that            Pontes's discretion to run the yard does not constitute final            decisionmaking authority which  might trigger liability under                                          12              1983 as  interpreted by Bryan County Comm'rs  and Pembauer.                                      ____________________      ________            Pontes's testimony that an unidentified DPW Superintendent in            the  1970's first came  up with  the roof  rack ban  does not            suffice.   Such  a decision  was  not made  by New  Bedford's            legislative body; nor are superintendents, who are second-in-            command figures, the final authority to establish DPW policy.                      Second, Silva has not met  the burden of showing  a            "custom"  under Bordanaro.   The  roof  rack ban  was not  so                            _________            "wellsettled and widespread" as to  have force of law, nor is            there  sufficient  evidence   that  the  City's  policymaking            officials could  be said to  have had actual  or constructive            knowledge of the practice.   See Bordanaro, 871 F.2d at 1156-                                         ___ _________            57.  At  the close  of evidence, witnesses  such as Lobo  and            Pontes  could only  remember  a few  instances over  the last            twenty years  when any  roof rack  policy had been  enforced.            More significantly, Commissioner Worden testified that he did            not  even know  of  the existence  of a  roof rack  ban until            several months after  Silva had been  fired and, indeed,  not            until after Silva had filed suit against the City.  Moreover,            there is no evidence that Mayor Tierney or other high ranking            city officials, or prior policymakers, were even aware of the            practice, much  less that they did nothing to  end it.  We do            not suggest that, and need not reach the issue of whether,  a            flat ban  on political  roof racks on  cars in  city employee            parking lots is  unconstitutional.  Even if  Silva's "custom"                                          13            claim   is  recast  as   involving  a  custom   of  selective            enforcement of such a ban depending on which candidate's sign            is displayed,  a far  more potent  constitutional claim,  the            claim still  fails for  want of evidence  that it  involves a            custom.                         Under  Bordanaro,   in  order  to  show  that  City                             _________            officials  had constructive  knowledge of  the practice,  the            plaintiff   must  show  that  "the  practices  have  been  so            widespread or flagrant that  in the proper exercise  of their            official responsibilities  the municipal  policymakers should            have known of them."  Bordanaro, 871 F.2d at 1157 (citations,                                  _________            internal quotation  marks,  and  alterations  omitted).    In            Bordanaro, the plaintiff  had presented considerable evidence            _________            demonstrating a  comprehensive failure by the  defendant City            of Everett  to train  and monitor the  actions of  its police            officers,  and the court found that the evidence demonstrated            the  existence  of   a  widespread  practice  of   which  the            defendant's policymaking  officials should  have been  aware.            See Id. at  1159-61.  In contrast, the evidence  in this case            ___ ___            at best suggests a practice,  sporadic at most, of which only            some  lower-level  managerial  employees were  aware.    This            evidence is insufficient to show that the City's policymaking            officials had constructive notice of the practice.            B.  Due process considerations                __________________________                                          14                      Silva  claims he was deprived of a liberty interest            under the Due  Process clause of the  Fourteenth Amendment by            the termination  of his  employment in  that the  termination            stigmatized  him  and  damaged his  ability  to  obtain other            employment.  Silva further argues that the City  violated his            right to  due process by  refusing to grant him  a hearing at            which he might clear his name.                      The  Supreme Court has held that termination of at-            will employment, even  when accompanied  by statements  which            might be  characterized  as defamatory,  is  insufficient  by            itself to  implicate a constitutionally  protected liberty or            property interest.  See Bishop  v. Wood, 426 U.S. 341, 348-49                                ___ ______     ____            n. 13 (1976);  Board of  Regents v. Roth,  408 U.S. 564,  572                           _________________    ____            (1972). Despite the "drastic effect of the 'stigma' which may            result  from defamation  by the  government in  a  variety of            contexts,  .  .  .  reputation alone,  apart  from  some more            tangible interests such as employment, is [n]either 'liberty'            [n]or  'property'   by  itself  sufficient   to  invoke   the            procedural  protection of the  Due Process Clause."   Paul v.                                                                  ____            Davis, 424  U.S. 693, 701  (1976).  Rather,  the reputational            _____            injury  must  be  accompanied  by  a  change  in  the injured            person's  status or rights under substantive state or federal            law.  See Id. at 710-12.                  ___ ___                      We interpreted  these requirements  in Beitzell  v.                                                             ________            Jeffrey, 643  F.2d  870 (1st  Cir. 1981),  stating that  "the            _______                                          15            Fourteenth  Amendment procedurally  protects reputation  only            where  (1) government action threatens it, (2) with unusually            serious harm, (3)  as evidenced by  the fact that  employment            (or some  other right or  status) is affected."   Id. at  878                                                              ___            (footnote and citations omitted).  Moreover, the municipality            terminating the  employee must  also be  responsible for  the            dissemination of defamatory charges, in a formal setting (and            not  merely as  the  result  of  unauthorized  "leaks"),  and            thereby  significantly  have interfered  with  the employee's            ability to find future employment.  Id. at 879.                                                  ___                      Massachusetts  law, under  the State  Constitution,            may  have  a  slightly  broader  conception  of  the  liberty            interests  protected by  due process  in this  sort of  case.            Such  liberty interests  have  been found  in the  absence of            formal charges where the  allegedly defamatory statements are            "likely to be disseminated either to members of the public or            to  prospective  employers."  See  Smith  v. Commissioner  of                                          ___  _____     ________________            Mental Retardation,  28 Mass.  App. Ct.  628, 636-37  (1990),            __________________            rev'd on other grounds, 409 Mass.  545 (1991).  But the right            ______________________            to  a  hearing  still  only   attaches  when  the  damage  to            plaintiff's character  is very serious.  As  the court stated            in Smith,               _____                      The type  of  damage  to  reputation  and                      character . . .  must be beyond  whatever                      obloquy stems  from  the loss  of a  job,                      demotion,   adverse  evaluations   (e.g.,                      inefficiency   and    incompetence),   of                      judgments of job performance.  Similarly,                                          16                      demotions or transfers  with overtones of                      disciplinary   action   and    consequent                      adverse  effect  on  reputation  do  not,                      without  more,  give  rise to  a  liberty                      interest.            Id. at 635 (citations omitted); see also, Stetson v. Board of            ___                             ________  _______    ________            Selectmen,  369 Mass.  755,  761  (1976)  (To  "constitute  a            _________            deprivation  of  liberty  based on  serious  damage  to one's            standing in  the  community, more  must  be shown  than  mere            allegations of  incompetence or inefficiency at  a particular            job.")                      The  evidence  does  not meet  these  requirements.            There is no evidence that  the basis for Silva's termination,            that Silva  "pushed Tim  Lobo",  was ever  disseminated in  a            formal setting, as required under federal law.  Even assuming            the state standard  is different, there was  no dissemination            to  the public or to  prospective employees.  The termination            letter  that  passed through  the  City  personnel department            remarked only  on  Silva's "unsatisfactory  conduct  and  job            performance".   The employee warning written by Pontes stated            only  that  Silva "pushed  Tim  Lobo"  and  was not  publicly            disseminated.   Silva's union representative was aware of the            incident only  because Silva  requested the  representative's            presence  when  Pontes  issued  his  warning.    That  Worden            interviewed  a witness  to the  incident  is insufficient  to            constitute dissemination.    Finally, that  the incident  was            discussed by other employees in the city yard is not evidence                                          17            that the incident  was published by Worden or  any other city            official or was  the basis for a formal  charge requiring due            process protections.                      In  sum, we find  no evidence supporting  the claim            that Silva's termination was accompanied by defamatory formal            charges  or  statements  that   were  disseminated  by   city            officials.  Nor do we  find evidence that Silva's  subsequent            difficulty in  obtaining employment resulted from  the City's            discharge  of  Silva  for  unsatisfactory   conduct  and  job            performance.                      Affirmed.  Costs to the defendants.                      ________                                          18
