
USCA1 Opinion

	




                                [Not For Publication]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 96-1848                                   JAMES A. MURRAY,                                Plaintiff, Appellant,                                          v.                                   CITY OF BOSTON,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                  [Hon. George A. O'Toole, Jr., U.S. District Judge]                                                ___________________                                 ____________________                                        Before                           Stahl and Lynch, Circuit Judges,                                            ______________                            and Woodlock,* District Judge.                                           ______________                                 ____________________            Mark  S.  Bourbeau, with  whom  Bourbeau  and Bourbeau  Bonilla  &            __________________              __________________________________        Tocchio were on brief, for appellant.        _______            Krisna M.  Basu, Assistant Corporation  Counsel, with whom  Merita            _______________  ______________________________             ______        A. Hopkins, Corporation Counsel, was on brief, for appellee.        __________  ___________________                                 ____________________                                  December 17, 1996                                 ____________________        ____________________        *Of the District of Massachusetts, sitting by designation.                       PER CURIAM.   Plaintiff James  Murray appeals  from                      PER CURIAM            the entry of summary judgment on his employment-related claim            against  the City of Boston.  Murray, a former city employee,            brought claims against  the City of  Boston and Mayor  Menino            under  42 U.S.C.    1983 and  the Massachusetts  Civil Rights            Act, Mass. Gen. L. ch. 12,   11I ("MCRA").                      Murray  alleges that,  in 1992,  he was  terminated            from his position as  Executive Assistant to the Commissioner            for Elderly Affairs, and that, in 1994, he was constructively            terminated  from his  subsequent position  as a  reporter for            Boston   Seniority,   a   Commission   for   Elderly  Affairs            __________________            publication.   Murray  resigned from  the latter  position in            March 1994.    Murray alleges  that these employment  actions            were   punishment  for  expressing   his  political  beliefs,            specifically for  running for City  Council in  1991 and  for            Mayor in 1993 against the incumbent Mayor of Boston.                      The district court granted summary judgment for the            defendants  on all  claims.   Murray  appeals  only from  the            judgment against him as  to the City.  Because Murray has not            adduced evidence sufficient to establish  municipal liability            under   1983, we affirm the district court's grant of summary            judgment on that  claim.1  As Murray has failed  to show that                                            ____________________            1.  Defendant also  argues that Murray was not constructively            terminated  and that,  on the  merits, he  has not  shown any            retaliation, much  less for  the expression of  his political            views.  We find  it unnecessary to reach these  arguments but            note that they appear well taken.                                         -2-                                          2            he was subject to  any threats, intimidation, or  coercion, a            necessary  element of claims  under the MCRA,  we also affirm            the grant of summary judgment on the state law claim.                      In order to make out a claim of municipal liability            under    1983, Murray  must  show that  the  "execution of  a            government's policy  or custom, whether made  by lawmakers or            by those whose edicts or acts may fairly be said to represent            official  policy, inflicts the  injury."  Monell  v. New York                                                      ______     ________            Dep't of Social Servs., 436 U.S. 658, 694 (1978).  The theory            ______________________            of respondeat superior has  no place in such claims.   Id. at                                                                   ___            691.  The "custom" on which liability is premised must be "so            permanent  and well  settled as  to constitute  a 'custom  or            usage' with the force  of law." Id. (quoting Adickes  v. S.H.                                            ___          _______     ____            Kress  Co., 398  U.S. 144,  167-68 (1970)(internal  quotation            __________            marks omitted)).   Murray does  not contend that  there is  a            formal  act or  written policy  which embodies  the so-called            policy of retaliation.   Nor does he contend that  "anyone in            city government ever promulgated, or even articulated, such a            policy."  City of  St. Louis v. Praprotnik, 485 U.S. 112, 128                      __________________    __________            (1988).  Rather, he says that there is  an informal policy or            custom  of punishing  city  employees  who express  political            views different than those of the administration.                      This  court   had   said  that   there   are   "two            requirements for  plaintiffs to meet in  maintaining a   1983            action grounded upon an unconstitutional municipal custom":                                         -3-                                          3                           First,  the  custom or  practice  must be                           attributable  to  the  municipality. .  .                           .[I]t   must   be  so   well-settled  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.   Second, the  custom must                           have  been the  cause of  and  the moving                           force    behind   the    deprivation   of                           constitutional rights.            Bordanaro v. McLeod, 871  F.2d 1151, 1156 (1st Cir.)(internal            _________    ______            citations omitted), cert. denied, 493 U.S. 820 (1989).                                ____________                      On the first point,  Murray naturally relies on his            own employment history, which  need not be detailed  here, to            support  his   claim  that  there  is   a  "well-settled  and            widespread" custom.   But evidence of a  single occurrence is            usually  insufficient,  in  and  of itself,  to  establish  a            municipal  "custom  and  usage."   St.  Hilaire  v.  City  of                                               ____________      ________            Laconia, 71 F.3d 20, 29 (1st Cir. 1995), cert. denied, 116 S.            _______                                  ____________            Ct.  2548   (1996);  Mahan   v.  Plymouth  County   House  of                                 _____       ____________________________            Corrections, 64 F.3d 14, 16-17 (1st Cir. 1995).             ___________                      Murray tries  to buttress his claim that there is a            "custom" by pointing  to three lawsuits  filed in the  United            States District  Court for the District  of Massachusetts and            one  complaint  filed  before  the  Massachusetts  Commission            Against Discrimination by present or  former city employees.2                                            ____________________            2.  We   assume  arguendo  that  the  deposition  transcripts                             ________            proffered  by Murray  constitute admissible  evidence.    The            City  argues that they are inadmissible hearsay.  See Garside                                                              ___ _______            v. Osco Drug, Inc., 895 F.2d 46 (1st Cir. 1990).               _______________                                         -4-                                          4            There is  considerable doubt that three  individual law suits            and   one  administrative  complaint,   even  if   each  made            allegations comparable  to Murray's, would suffice  to show a            custom with  the force of law.   But these other disputes are            not  comparable to  the  present action  and  do not  involve            similar  allegations  of  retaliation  because  of  political            opposition  to the  incumbent  administration.   None of  the            complaining individuals was,  from the evidence presented,  a            candidate  for office.  Even if Murray's complaint is read to            allege  a broader  theory  of retaliation,  encompassing more            than  just retaliation  against  city employees  who run  for            office  against incumbent  city  officials,  the  other  fact            settings he proffers do  not support his claim that  there is            such a custom or policy.                      These  claims involve  diverse  city agencies,  and            different city officials were responsible for  the employment            actions at issue.  One  claimant makes allegations of  denial            of due process  in how  his job was  terminated, one  alleges            termination following  her criticism of her employing agency,            one alleges  sexual harassment,  and one  alleges retaliation            for speaking out against sexual  harassment.  Murray makes no            attempt   to  link   these  various   claims  to   a  central            policymaker.  These disparate facts  do not fall easily under            even the  broader category of  a "custom"  of punishing  city                                         -5-                                          5            employees  for expression,  in any  form, of  political views            contrary to those of the city administration.                        Such a protean view as that offered by Murray would            render the  "custom" requirement  meaningless.   In  contrast            with the  showing made here,  this court has  credited proof,            such as that offered in Bordanaro, of uncontroverted evidence                                    _________            from witnesses  with first  hand knowledge  of a practice  of            particular  city  officials who  repeatedly  engaged,  over a            period of  time, in exactly the same sort of unconstitutional            behavior.   See Bordanaro, 871 F.2d  at 1156.  As  we said in                        ___ _________            Mahan, plaintiff "has not brought his case near the Bordanaro            _____                                               _________            umbrella, let alone under it."  Mahan, 64 F.3d at 16.                                            _____                      To establish a claim under the MCRA, Mass. Gen.  L.            ch.  12,     11I,  plaintiff  must  prove  that  the  alleged            interference  or  attempted interference  with rights  was by            "threats, intimidation or coercion."  Mass. Gen. L. ch. 12,              11H; Swanset Dev. Corp.  v. City of Taunton, 668  N.E.2d 333,                 __________________     _______________            337 (Mass. 1996).  The Supreme Judicial Court has said that:                      "[t]hreat" in this  context involves  the                      intentional exertion of pressure  to make                      another fearful or apprehensive of injury                      or harm.  "Intimidation" involves putting                      in fear for the  purpose of compelling or                      deterring  conduct. . .  . [A] definition                      of  coercion  [is]  "the  application  to                      another of such  force, either,  physical                      or  moral,  as  to  constrain  him to  do                      against his will  something he would  not                      have done."                                         -6-                                          6            Planned  Parenthood  League v.  Blake,  631  N.E.2d 985,  990            ___________________________     _____            (Mass.),  cert.  denied,  115  S. Ct.  188  (1994)  (internal                      _____________            citations omitted).  Murray presents no evidence from which a            court  could  conclude that  he  was  subjected to  "threats,            intimidation, or  coercion" of  this nature.   Therefore, his            state law claim fails on the merits as well.                      The judgment of the district court granting summary            judgment to the defendant on all claims is affirmed.                                                       ________                                         -7-                                          7
