Barton v. Clancy

United States Court of Appeals

For the First Circuit

No. 08-2479

GORDON BARTON,

Plaintiff, Appellant,

v.

EDWARD J. CLANCY, JR., individually and in his capacity as Mayor

of the City of Lynn, Massachusetts,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Lipez, Stahl, and Howard,

Circuit Judges.

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.

January 14, 2011

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,

1

Barton brought several additional claims under Massachusetts

state law, the dismissal of which he does not appeal here.

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after Barton was hired for the basketball coaching job, Clancy

publicly criticized Barton's ability to perform the job on the

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

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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.

I.

We recount the facts with the summary judgment standard

in mind, viewing the record in the light most favorable to the

nonmoving party, Barton. Vélez 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."

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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 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.

2

Barton was not named as a plaintiff in either the 2004

complaint against the Water and Sewer Commission or the 2005 suit

against the City. However, Barton testified that he supported and

was involved in each of these suits, and Clancy does not dispute

Barton's involvement.

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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.

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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 Commmission.

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:

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

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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 basketball season, Superintendent Kostan officially hired

Barton as full-time coach for the boys' basketball team. On May 9,

2007, after learning that Barton had been appointed as full-time

coach, Clancy sent a second letter objecting to Barton's

appointment, this time to Superintendent Kostan. Clancy's May 9

letter expressed "disappointment" with the decision to hire Barton

and stated in part:

Why my objection?

Merriam-Webster's Collegiate Dictionary

Eleventh Edition defines disability as

follows:

(1b) inability to pursue an occupation

because of a physical impairment;

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(2) lack of legal qualification to do

something.

Mr. Gordon Barton is retired from the Lynn

Fire Department on an accidental disability

pension. . . .

I believe the taxpayers and citizens of the

City of Lynn are entitled to an explanation of

how its interests are being protected by the

hiring of an individual who is receiving an

accidental disability pension based on a

physical inability to work. The efficacy of

the public employee retirement system is

called into question. Next to the burgeoning

cost of health insurance, the skyrocketing

increases in pension costs put a strain on

municipal budgets and the City of Lynn's tax

rate. I reiterate the contention I expressed

in my letter of November 29, 2006 to Principal

Fila. I take strong exception to your approval

of Mr. Fila's appointment of Mr. Barton absent

sufficient evidence to protect the financial

interests of the City of Lynn.

Again, in spite of Clancy's strong criticisms, Superintendent

Kostan did not discharge Barton.

In addition to sending these letters directly to

Principal Fila and Superintendent Kostan, Clancy provided the

letters to the local press. Clancy's letters sparked multiple news

articles, several of which included excerpts of the letters. Many

Lynn residents sent letters to local newspapers expressing their

views on the topic, and many residents mentioned Clancy's letters

to Barton.

Shortly after writing the second letter, Clancy made

similarly critical statements about Barton's appointment in an

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interview with a local newspaper, The Daily Item. Clancy was

quoted as stating:

"My opinion of Barton's suitability aside, the

principle of having a person who is receiving

disability -- income tax free -- state pension

coaching is an anomaly and the city's

financial interests have to be protected,"

[Clancy] said. "What should happen is Barton

or Fila or whoever should get an indemnity

policy absolving the city of any liability."

. . .

"I don't care if he is just walking on the

court, he is receiving disability pension from

the city of Lynn based on physical

incapacity," Clancy said. "(The state

declared him) physically unable to work so I

think that disqualifies him from being coach.

In a basketball game there is movement, there

is energy, there is synergy and the coach

shows, at least in some fashion, how you play

defense or how a point guard plays offense.

Inherently, it implies or assumes some degree

of physical dexterity and Barton retired from

the city for the inability to do just that."

. . .

"If Barton gets a physical that says he's able

to work and Fila and Nick say he's the

basketball coach, I will participate in a

jump-ball ceremony for charity before the

first game," he said. "Absent the physical

disability disappearance, we need, at the very

least, a liability waiver."

In addition to his public attacks on Barton's appointment

as basketball coach and his requests to Barton's hiring authorities

that the appointment be rescinded, Clancy initiated investigations

into Barton's taxes and disability pension. Sometime after writing

the November 29, 2006 letter, Clancy made a request to the City's

deputy tax collector for any public documents related to Barton's

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payment of taxes. Clancy requested these records based on his

recollection that Barton had been late or delinquent in paying

certain taxes. He intended to use the tax documents to "see if the

pattern that I had seen earlier had persisted and whether my

recollection was correct or not." Clancy could not recall any

individuals about whom he had made a similar request for tax

information. In addition, Clancy requested public documents about

Barton's disability pension from the Lynn Retirement Board. Barton

was made aware of Clancy's requests for his tax and pension

records. In addition, in late May 2007, shortly after Barton filed

this lawsuit, attorneys for Barton and Clancy sparred over whether

state law prohibited Barton from working as a basketball coach

while receiving an accidental disability pension.

Clancy's conduct, and the resulting public controversy

surrounding Barton's employment, made Barton feel that he was "not

wanted" for the job and at times distracted him from his coaching.

Clancy's actions made Barton fearful about losing his disability

pension and his job as basketball coach, caused him immense stress,

and made him feel sick. He also had trouble sleeping.

E. Proceedings in the District Court

In May 2007, Barton filed this suit against Clancy,

individually and in his capacity as Mayor of the City of Lynn. As

relevant to this appeal, Barton asserted a violation of his rights

under Massachusetts state law, Mass. Gen. Laws ch. 151B (ch. 151B),

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§ 4, alleging that Clancy's conduct related to Barton's appointment

as basketball coach constituted unlawful disability harassment.

Barton further asserted a 42 U.S.C. § 1983 claim3 for violation of

his rights under the First Amendment, alleging that Clancy's

failure to reappoint him to the Parks Commission and Clancy's

conduct related to the basketball coaching job constituted unlawful

retaliation based on the exercise of Barton's First Amendment

rights.

The district court granted Clancy's motion for summary

judgment as to both claims.4 As to the disability harassment

claim, the district court concluded that Clancy was not Barton's

employer and, although MCAD decisions have imposed liability for

workplace harassment absent a direct employment relationship, those

decisions have not imposed liability for acts such as Clancy's that

occurred outside the workplace setting. The court further

3

Section 1983 imposes civil liability upon any person who,

acting under color of state law, "subjects, or causes to be

subjected, any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws."

42 U.S.C. § 1983. Mayor Clancy does not dispute that he was acting

under color of state law when he engaged in the conduct at issue

here.

4

The district court also granted Clancy summary judgment as

to Barton's remaining claims for tortious interference with

advantageous business relations, handicap discrimination in

violation of ch. 151B, § 4(16), unlawful retaliation in violation

of ch. 151B, § 4, and violation of the Massachusetts Civil Rights

Act, Mass. Gen. Laws ch. 12, § 11(1). On appeal, Barton does not

challenge the district court's ruling as to these claims, and we do

not address them.

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concluded that Clancy's actions were not sufficiently severe or

pervasive to create a hostile work environment.

As to the First Amendment claim, the court found that

Barton had asserted a "plausible First Amendment retaliation claim"

based on both Clancy's refusal to reappoint Barton to the Lynn

Parks Commission and Clancy's conduct related to Barton's

appointment as basketball coach. The court concluded that Barton

had shown that he spoke out on matters of public concern, that

Clancy's actions would tend to chill individuals in their exercise

of constitutional rights, and that there was a genuine issue of

material fact as to whether Clancy's actions were motivated by

Barton's history of speaking out. However, the court concluded

that Barton was entitled to qualified immunity because none of the

allegedly retaliatory acts violated clearly established law.

On appeal, Barton contends that the court erred in

granting summary judgment as to his disability harassment and First

Amendment claims. Summary judgment is properly granted where "the

movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(a).5 We review the district court's grant of

5

Federal Rule of Civil Procedure 56 was amended effective

December 1, 2010. Although the prior version was applicable to

Clancy's motion, and the district court properly applied that

version, the standard has not changed and we thus cite the new

rule. See Fed. R. Civ. P. 56 advisory committee notes

("Subdivision (a) carries forward the summary-judgment standard

expressed in former subdivision (c), changing only one word –

genuine 'issue' becomes genuine 'dispute.'").

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summary judgment de novo, drawing all reasonable inferences in

favor of the nonmoving party. Thermo King, 585 F.3d at 446.

II.

Barton contends that the district court erroneously

granted summary judgment as to his disability harassment claim

under ch. 151B. Clancy responds that the district court properly

granted summary judgment for three independent reasons: (1) Barton

is not a "handicapped person" for purposes of ch. 151B; (2) Clancy

was not Barton's "employer," and ch. 151B does not permit liability

to attach to a nonemployer; and (3) Clancy's alleged harassment

toward Barton did not create a hostile work environment because it

was not workplace related and not sufficiently severe or pervasive.

A federal court sitting in diversity or, as here,

exercising supplemental jurisdiction over a state law claim must

apply state substantive law. Hoyos v. Telecorp Commc'ns, Inc., 488

F.3d 1, 5 (1st Cir. 2007). In doing so, we "look to the

pronouncements of a state's highest court in order to discern the

contours of that state's law." González Figueroa v. J.C. Penney

P.R., Inc., 568 F.3d 313, 318 (1st Cir. 2009). If the highest

court has not spoken directly on the question at issue, we predict

"how that court likely would decide the issue," looking to the

relevant statutory language, analogous decisions of the state

supreme court, decisions of the lower state courts, and other

reliable sources of authority. Id. at 318-19.

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A. Whether Barton Is "Handicapped" Under Chapter 151B

Chapter 151B defines "handicap" to include "(a) a

physical or mental impairment which substantially limits one or

more major life activities of a person; (b) a record of having such

impairment; or (c) being regarded as having such impairment." Ch.

151B, § 1(17); see also id. § 1(20) (defining the term "major life

activities" to include "working"). As the Massachusetts Supreme

Judicial Court (SJC) has explained, "[l]oosely speaking, the first

prong protects only those persons with actual physical or mental

limitations, while the third prong protects those persons who,

whether actually impaired or not, may be the victims of stereotypic

assumptions, myths, and fears regarding such limitations." Dahill

v. Police Dep't of Boston, 748 N.E.2d 956, 962-63 (Mass. 2001). An

employee's impairment, whether actual or perceived, substantially

limits the employee in the major life activity of working only if

the impairment "precludes him from performing a class of jobs."

City of New Bedford v. Mass. Comm'n Against Discrimination, 799

N.E.2d 578, 590 (Mass. 2003).

A reasonable jury could conclude that Barton satisfies

ch. 151B's definition of handicap because Clancy regarded him as

having a physical impairment that substantially limited his ability

to perform a range of jobs. Clancy's repeated criticisms of Barton

serving as a basketball coach reflect his assumption that, because

Barton had a back injury that left him physically unable to work as

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a firefighter and eligible for a disability pension, Barton was

also physically unable to perform a range of jobs including that of

a high school basketball coach. The "regarded as" prong is aimed

at precisely this kind of "stereotypic assumption[]." See Dahill,

748 N.E.2d at 963.6

B. Employment Relationship

Clancy next contends that Barton's handicap harassment

claim fails because Clancy was not Barton's employer for purposes

of ch. 151B. Barton responds that (1) Clancy had sufficient

control over the circumstances of Barton's employment to qualify as

his employer, and (2) even absent an employment relationship,

Clancy may be held liable for handicap harassment under ch. 151B,

§ 4(4A).

1. Whether Clancy Was Barton's Employer

Chapter 151B's definition of "employer" provides little

guidance, stating that

the term 'employer' does not include a club

exclusively social, or a fraternal association

or corporation, if such club, association or

corporation is not organized for private

profit, nor does it include any employer with

fewer than six persons in his employ, but

shall include the commonwealth and all

political subdivisions, boards, departments

and commissions thereof.

6

In light of this conclusion, we need not address Barton's

alternative argument that he qualifies as a handicapped person by

virtue of his work-related back injury under Mass. Gen. Laws ch.

152, § 75B, a section of the Massachusetts workers' compensation

law.

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Id. § 1(5). The parties do not cite, and our research has not

revealed, any Massachusetts decisions interpreting the term

"employer" under ch. 151B in a context similar to this case.

However, in interpreting ch. 151B, Massachusetts courts follow

federal case law construing analogous provisions of federal

antidiscrimination law. See Wheatley v. Am. Tel. & Tel. Co., 636

N.E.2d 265, 268 (Mass. 1994). Therefore, we look to federal

decisions interpreting the term "employer" under federal

antidiscrimination statutes.

In Lopez v. Massachusetts, 588 F.3d 69 (1st Cir. 2009),

we recently interpreted the term "employer" under Title VII of the

Civil Rights Act of 1964. We noted that Supreme Court precedent

has "established that when a statute contains the term 'employee'

but does not define it, a court must presume that Congress has

incorporated traditional agency law principles for identifying

'master-servant relationships.'" Id. at 83. Under the common law

test, "'the relevant factors defining the master-servant

relationship focus on the master's control over the servant.'" Id.

at 84 (quoting Clackamas Gastroenterology Assocs., P.C. v. Wells,

538 U.S. 440, 448 (2003)).

As we explained in Lopez, we look to the guidelines in

the Equal Employment Opportunity Commission (EEOC) Compliance

Manual to address the question of whether an employment

relationship exists. Id. at 85. The guidelines list a series of

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"non-exhaustive factors" that are indicative of an employment

relationship:

"[t]he employer has the right to control when,

where, and how the worker performs the job;"

"[t]he work does not require a high level of

skill or expertise;" "[t]he work is performed

on the employer's premises;" "[t]here is a

continuing relationship between the worker and

the employer;" "[t]he employer has the right

to assign additional projects to the worker;"

"[t]he employer sets the hours of work and the

duration of the job;" "[t]he worker is paid by

the hour, week, or month rather than the

agreed cost of performing a particular job;"

"[t]he worker does not hire and pay

assistants;" "[t]he work performed by the

worker is part of the regular business of the

employer;" "[t]he employer is in business;"

"[t]he worker is not engaged in his/her own

distinct occupation or business;" "[t]he

employer provides the worker with benefits

such as insurance, leave, or workers'

compensation;" "[t]he worker is considered an

employee of the employer for tax purposes;"

"[t]he employer can discharge the worker;" and

"[t]he worker and the employer believe that

they are creating an employer-employee

relationship."

Id. (quoting 2 Equal Emp't Opportunity Comm'n, EEOC Compliance

Manual, § 2-III, at 5716-17 (2008)) (alterations in original).

Applying these factors in the instant case, we conclude

that Clancy was not Barton's employer. One relevant factor,

whether "[t]he employer can discharge the worker," clearly

militates against finding otherwise. See id. It is undisputed

that the superintendent of Lynn's public school system, and not the

mayor, had the ultimate authority to hire and fire school athletic

coaches. The mayor's lack of hiring and firing authority is

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particularly clear in this case, where Clancy's letters strongly

urged Superintendent Kostan and Principal Fila to rescind Barton's

appointment, but Kostan and Fila rejected that suggestion and kept

Barton employed. Barton has not attempted to demonstrate, and the

record does not show, that any of the other factors listed in the

EEOC guidelines support a finding that the City's public high

school athletic coaches are "employees" of the mayor.

Barton does not argue that Clancy qualified as his

employer based on the factors listed in the EEOC guidelines.

Instead, he relies on our decision in Carparts Distribution Center,

Inc. v. Automotive Wholesaler's Ass'n of New England, Inc., 37 F.3d

12 (1st Cir. 1994), and argues that Clancy was his employer because

Clancy had the ability to control significant aspects of Barton's

employment. In Carparts, we stated that an entity would be an

"employer" under the Americans with Disabilities Act (ADA) if it

"exercised control over an important aspect of [the plaintiff's]

employment," such as employee health care coverage. Id. at 17. In

Lopez, however, we emphasized that the Supreme Court has restricted

the definition of "employer" under Title VII to its meaning at

common law. 588 F.3d at 84. We distinguished Carparts on the

grounds that it "involved two private entities, an unusual set of

facts, and a particular procedural posture," and noted that in

Carparts we ultimately "concluded that we lacked sufficient facts

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to determine whether this test even applied to the case at hand."

Id. at 88 (citing Carparts, 37 F.3d at 18).

Even assuming, arguendo, that the standard suggested in

Carparts is applicable here, Clancy did not exercise sufficient

control over any important aspect of Barton's employment to qualify

as his employer. Barton emphasizes ways in which the mayor

exercised some indirect influence over the hiring and financing of

high school basketball coaches. Under the Lynn City Charter and

state law, the mayor sits as chairman of the School Committee; the

School Committee in turn has the authority to elect the

superintendent; and the superintendent, in consultation with high

school principals, in turn has the authority to hire and fire

school athletic coaches, Mass. Gen. Laws ch. 71 §§ 47A, 59B. The

mayor also has some influence over public school funding. Under

the City Charter, the mayor submits a proposed budget to the City

Council for each fiscal year, which contains a complete financial

plan for all city funds and activities. The City Council then

adopts the budget, with or without amendments. However, as noted

above, it is undisputed that the superintendent, not the mayor, has

authority to hire and fire athletic coaches. The mayor's limited

and indirect influence over public school athletic coaches does not

indicate that Mayor Clancy exercised control over an important

aspect of Barton's employment.

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2. Whether § 4(4A) Requires An Employment Relationship

Barton next contends that even if Clancy was not his

employer, his handicap harassment claim can proceed against a

person other than his employer under ch. 151B, § 4(4A). Section

4(4A) provides that it is unlawful

[f]or any person to coerce, intimidate,

threaten, or interfere with another person in

the exercise or enjoyment of any right granted

or protected by this chapter, or to coerce,

intimidate, threaten or interfere with such

other person for having aided or encouraged

any other person in the exercise or enjoyment

of any such right granted or protected by this

chapter.

Barton reasons that § 4(4A) prohibits "any person," regardless of

whether that person is his employer, from interfering with his

enjoyment of a right protected by ch. 151B. He contends that

Clancy's conduct interfered with his enjoyment of the protected

right to work in an environment free from unlawful handicap

harassment. See ch. 151B, § 4(16) (prohibiting employment

discrimination based on handicap).7

The SJC has not directly addressed the issue of whether

a defendant may be held liable under § 4(4A) for interfering with

7

The SJC has not specifically confirmed that Massachusetts

recognizes a claim for a hostile work environment based on handicap

under ch. 151B, § 4(16). However, the parties do not dispute that

Massachusetts recognizes such a claim, and we proceed on the

assumption that such a claim is cognizable under ch. 151B, § 4(16).

See Quiles-Quiles v. Henderson, 439 F.3d 1, 5 & n.1 (1st Cir. 2006)

(assuming that a disability harassment claim is viable under

analogous provision of the ADA).

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a plaintiff's protected right to work in an environment free of

unlawful harassment, even where the defendant is not the

plaintiff's employer or employer-agent. However, Barton's reading

of § 4(4A) finds limited support in Massachusetts case law and

administrative MCAD decisions.8 See, e.g., Thomas O'Connor

Constructors, Inc. v. Mass. Comm'n Against Discrimination, 893

N.E.2d 80, 86-89 (Mass. App. Ct. 2008) (imposing liability under §

4(4A) on a general contractor for its supervisory employee's racial

harassment of plaintiff construction worker at the "unitary"

construction work site, even though neither the alleged harasser

nor the general contractor were plaintiff's employer); Mass. Comm'n

Against Discrimination v. Local Union No. 12004 ("McGrath"), 2004

WL 1852966, at *37 (MCAD 2004) (imposing individual liability on

union employees for sexual orientation harassment of supervisory

employee at company work sites, reasoning that liability is

properly imposed under § 4(4A) even "when the person charged with

employment discrimination is not the complainant's employer or an

agent of the employer"); Fluet v. Harvard Univ., 2001 WL 1602815,

at *41 (MCAD 2001) (imposing individual liability on professor for

sexual harassment of teaching assistant under § 4(4A) absent an

employment relationship); Erewa v. Reis, 20 MDLR 36 (MCAD 1998)

(holding that an elderly patient's niece could be held liable under

8

Administrative decisions of the MCAD are to be accorded

deference in the interpretation of ch. 151B. College-Town, Div. of

Interco, Inc. v. Mass. Comm'n Against Discrimination, 508 N.E.2d

587, 593 (Mass. 1987)

-22-

§ 4(4A) for racially harassing a home health care worker in the

patient's home, reasoning that the plain language of § 4(4A) does

not require any employment relationship).

Even assuming, arguendo, that Clancy may be held liable

absent an employment relationship, the question remains whether

Clancy's alleged conduct interfered with Barton's right to work in

an environment free of unlawful harassment.9

C. Whether Clancy Interfered With a Protected Right Under Ch. 151B

Clancy contends that even if a direct employment

relationship is not required to impose liability under § 4(4A), his

conduct did not interfere with Barton's protected right to work in

an environment free of unlawful harassment. Clancy emphasizes that

he and Barton did not work at the same site and that he was never

physically present at Barton's workplace.

As discussed above, in certain factual circumstances, the

MCAD and at least one Massachusetts appellate decision have

interpreted § 4(4A) to impose liability on "any person" for

interference with the plaintiff's right to work in an environment

free of unlawful harassment, even where that person is not the

9

Barton also suggests that Clancy violated a right protected

by ch. 151B in that he "attempted to interfere" with Barton's

employment as basketball coach by attempting to have him

discharged. However, Clancy was ultimately unsuccessful in

convincing Superintendent Kostan or Principal Fila to discharge

Barton. Nothing in § 4(4A) suggests that a defendant may be held

liable under this section for merely attempting, without success,

to interfere with a right protected by ch. 151B, and Barton cites

no authority for this interpretation.

-23-

plaintiff's employer or employer-agent. However, in each of these

decisions the alleged harasser was physically present at the

plaintiff's workplace and the harassing conduct occurred on the

plaintiff's work site during the work day. See, e.g., Thomas

O'Connor Constructors, 893 N.E.2d at 89 (verbal harassment of

construction worker by supervisory employee of general contractor

on "unitary work site"); McGrath, 2004 WL 1852966 at *37 (verbal

harassment of supervisory employee by union employees at gas

company dig sites); Erewa, 20 MDLR at 38 (verbal and physical

harassment of home health care worker during on-site visit to

patient's home).

Here, by contrast, Clancy was never physically present at

Barton's work site and none of the alleged harassing conduct

occurred at Barton's workplace, although Barton may have felt some

of the effects of that conduct at work. Clancy never visited

Barton's office while he was the basketball coach, never attended

any of his basketball games or practices, and was never otherwise

physically close to Barton while Barton was working as a basketball

coach. Clancy also never personally confronted Barton during the

time he served as coach and never spoke directly with Barton about

the basketball coaching position.

Barton does not cite, and we are not aware of, any

Massachusetts decisions imposing liability for harassment under

§ 4(4A) where, as here, the alleged harasser was not the

-24-

plaintiff's employer or employer-agent, was never physically

present at the plaintiff's work site, and did not perform any of

the alleged harassing acts on the plaintiff's work site. As a

federal court applying the law of the forum state, "we will not

create new rules or significantly expand existing rules. We leave

those tasks to the state courts." Phoung Luc v. Wyndham Mgmt.

Corp., 496 F.3d 85, 88 (1st Cir. 2007). In light of our

conclusion, we need not address Clancy's alternate argument that

his actions were not sufficiently severe or pervasive to create a

hostile work environment.

III.

Barton next contends that the district court erroneously

concluded that his First Amendment claim was barred by qualified

immunity. Barton claims that Clancy retaliated against him based

on the exercise of his First Amendment rights in violation of

clearly established law. Clancy's First Amendment claim is based

on two different alleged acts of retaliation: (1) Clancy's decision

not to reappoint Barton to his position on the Lynn Parks

Commission in April 2006, and (2) Clancy's campaign of harassment

against Barton in 2006-2007 following his appointment as basketball

coach. We discuss the qualified immunity framework, and then

address each component of Barton's retaliation claim.

-25-

A. Qualified Immunity Analysis

Public officials have "qualified immunity from personal

liability for actions taken while performing discretionary

functions." Lynch v. City of Boston, 180 F.3d 1, 13 (1st Cir.

1999). The qualified immunity analysis requires a court to decide

"(1) whether the facts alleged or shown by the plaintiff make out

a violation of a constitutional right; and (2) if so, whether the

right was 'clearly established' at the time of the defendant's

alleged violation." Maldonado v. Fontanes, 568 F.3d 263, 269 (1st

Cir. 2009) (adopting two-step analysis and abandoning prior usage

of three-step analysis in light of Pearson v. Callahan, 129 S. Ct

808, 815-16 (2009)). Courts may conduct this inquiry sequentially,

or resolve a particular case on the second prong alone. Id. at

270.

The "clearly established" prong has two aspects: (1) "the

clarity of the law at the time of the alleged civil rights

violation," and (2) whether, given the facts of the particular

case, "a reasonable defendant would have understood that his

conduct violated the plaintiff['s] constitutional rights." Id. at

269. "Cognizant of both the contours of the allegedly infringed

right and the particular facts of the case, the relevant,

dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted." Id.

-26-

(internal quotation marks and citation omitted). In other words,

"the salient question is whether the state of the law at the time

of the alleged violation gave the defendant fair warning that his

particular conduct was unconstitutional." Id. This does not mean

that "an official action is protected by qualified immunity unless

the very action in question has previously been held unlawful," but

rather that "in the light of pre-existing law the unlawfulness must

be apparent." Anderson v. Creighton, 483 U.S. 635, 640 (1987);

accord Hope v. Pelzer, 536 U.S. 730, 739 (2002); Bergeron v.

Cabral, 560 F.3d 1, 12 (1st Cir. 2009), abrogated on other grounds

by Maldonado, 568 F.3d at 269 ("[A] plaintiff need not show that

the conduct of which he complains is an exact replica of conduct

that previously has been held unlawful.").

In conducting a qualified immunity analysis, a court

should "use its full knowledge of its own [and other relevant]

precedents." Elder v. Holloway, 510 U.S. 510, 516 (1994) (internal

quotation marks omitted, brackets in original). The court must

examine whether there are "'cases of controlling authority . . . at

the time of the incident . . . [or] a consensus of cases of

persuasive authority such that a reasonable officer could not have

believed that his actions were lawful,'" Bergeron, 560 F.3d at 11

(quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)) (alterations in

original), and "should search the relevant authorities both in

circuit and out of circuit." Id.; see also El Dia, Inc. v.

-27-

Rossello, 165 F.3d 106, 110 n.3 (1st Cir. 1999) (declining to adopt

"a hard-and-fast rule" that out-of-circuit precedent is either

determinative of or irrelevant to whether a law is clearly

established, and instead stating that whether precedent "clearly

establishes" a law may depend in part upon "the location and level

of the precedent, its date, its persuasive force, and its level of

factual similarity to the facts before this Court").

B. Non-Reappointment to Parks Commission

Barton contends that Clancy violated clearly established

law by declining to reappoint him to the Lynn Parks Commission in

retaliation for the exercise of his First Amendment rights. Clancy

responds that it is not unlawful to decline to reappoint an

individual to a public volunteer position in retaliation for

protected activity, and that in any event he is entitled to

qualified immunity because the law was not clearly established as

of April 10, 2006, when the non-reappointment occurred. To assess

this response, we first survey the state of the relevant law on (1)

whether removal from a volunteer position such as Parks

Commissioner triggers First Amendment scrutiny, and (2) whether the

failure to reappoint to a volunteer position, as opposed to removal

from such a position, triggers such scrutiny. We then evaluate

whether the right at issue was clearly established in April 2006.

-28-

1. Law on Removal from a Volunteer Position

"Retaliation, though it is not expressly referred to in

the Constitution, is nonetheless actionable because retaliatory

actions may tend to chill individuals' exercise of constitutional

rights." Powell v. Alexander, 391 F.3d 1, 16-17 (1st Cir. 2004)

(internal quotation marks omitted). As a general matter, the

government may not deprive an individual of a "valuable government

benefit[]" in retaliation for his or her exercise of First

Amendment rights.10 Lynch, 180 F.3d at 13-14. In Perry v.

Sindermann, 408 U.S. 593, 597 (1972), the Supreme Court explained:

For at least a quarter-century, this Court has

made clear that even though a person has no

'right' to a valuable governmental benefit and

even though the government may deny him the

benefit for any number of reasons, there are

some reasons upon which the government may not

rely. It may not deny a benefit to a person

on a basis that infringes his constitutionally

protected interests – especially, his interest

in freedom of speech. For if the government

could deny a benefit to a person because of

his constitutionally protected speech or

associations, his exercise of those freedoms

would in effect be penalized and inhibited.

Clancy does not dispute this general principle, but

instead contends that a volunteer position, such as that of Parks

Commissioner, is not a "valuable governmental benefit," the

deprivation of which would trigger First Amendment scrutiny.

10

Clancy does not contend that Barton did not engage in

protected activity, or that the non-reappointment was not in

retaliation for his protected activity, and therefore we do not

address these issues.

-29-

Clancy relies heavily on Lynch, in which we held that, as of August

1994, it was not clearly established that it was unlawful for a

government official to remove an individual from a volunteer

position in retaliation for protected speech. 180 F.3d at 13. The

plaintiff claimed that she was terminated from service as a

volunteer on the mayor's Hunger Commission in retaliation for her

exercise of First Amendment rights. Id. at 6, 13. We first

"assume[d], without deciding, that the opportunity to serve as a

volunteer could constitute the type of valuable governmental

benefit or privilege the deprivation of which can trigger First

Amendment scrutiny." Id. at 13 (citing Perry, 408 U.S. at 597).

We then reasoned that even if removal from a volunteer position in

retaliation for protected activity violated the First Amendment, it

was not a violation of clearly established law:

It was not "clearly established" as of August,

1994, when [the supervisor] removed [the

plaintiff] from the Hunger Commission, that a

government official could not take such action

in retaliation for protected speech. We

recognize that the Supreme Court has held that

a variety of public benefits, in addition to

public employment, cannot be denied solely

because of the recipient's exercise of

constitutional rights. See, e.g., Rutan v.

Republican Party, 497 U.S. 62 (1990)

(promotion or transfer in government job);

Shapiro v. Thompson, 394 U.S. 618, 627 n.6

(1969) (welfare benefits). [The plaintiff]

argues that loss of a volunteer position with

a government agency falls into this category.

However, neither the Supreme Court nor this

court has ever held that the rule forbidding

denial of valuable governmental benefits in

reprisal for protected speech announced in

-30-

Perry v. Sindermann and its progeny extends to

the denial of non-compensated positions on

voluntary boards. Scant authority in support

of such an extension of the doctrine currently

exists.

Id. at 13-14. We acknowledged that in Hyland v. Wonder, 972 F.2d

1129, 1135 (9th Cir. 1992) ("Hyland I"), the Ninth Circuit held

"that volunteer status is a valuable governmental privilege that

cannot be denied on the basis of protected speech." Lynch, 180

F.3d at 14. However, we concluded that a single decision from

another circuit applying its own precedents was insufficient to

make it apparent to a reasonable public official that a particular

act was unlawful. Id.

Between August 1994, when the alleged retaliatory action

occurred in Lynch, and April 2006, when the alleged retaliatory

action occurred in this case, neither the First Circuit nor the

Supreme Court addressed whether removal from a volunteer position

in retaliation for protected speech can violate the First

Amendment.11 Relying on decisions from other jurisdictions, Barton

argues that the legal landscape has changed since Lynch and that

the right he asserts was clearly established at the time of his

non-reappointment. We review the relevant out-of-circuit

decisions, beginning with the earliest.

11

Ziskend v. O'Leary, 79 F. Supp. 2d 10 (D. Mass. 2000),

citing Lynch, held that at the time of the alleged adverse action

in that case, October 1997, it was not clearly established that

removal from a public volunteer position triggered First Amendment

scrutiny. Id. at 12-13.

-31-

Prior to Lynch, a Second Circuit decision, Janusaitis v.

Middlebury Volunteer Fire Department, 607 F.2d 17, 25-26 (2d Cir.

1979), found that the dismissal of a volunteer firefighter for

certain work-related complaints could violate the First Amendment.12

In that case, however, it was unnecessary for the court to engage

in an analysis of the plaintiff's status because Connecticut law

specifically provided that "volunteer firemen 'shall be construed

to be employees of the municipality' for purposes of workmen's

compensation." Id. at 21 (quoting Conn. Gen. Stat. § 7-314a).

Therefore, after concluding that the termination of the firefighter

was "state action" for purposes of a § 1983 claim, the court simply

treated the firefighter as a public employee for purposes of the

First Amendment claim. Id. at 25.13

More than a decade later in Hyland I, the Ninth Circuit

held that "the loss of a high-level volunteer position" with the

city Juvenile Probation Department could trigger First Amendment

12

The court ultimately concluded that no First Amendment

violation had occurred because the plaintiff had expressed himself

in a way that threatened the fire department's institutional

efficiency.

13

Janusaitis does not appear to reflect the prevailing view

of the Second Circuit. A far more recent decision stated, without

citation to Janusaitis, that the Second Circuit "had not yet

addressed whether 'claims of termination from volunteer positions

based on protected conduct are equivalent to, or should be analyzed

different from, more traditional claims of termination from

salaried government positions.'" Hoyt v. Andreucci, 433 F.3d 320,

327 n.5 (2d Cir. 2006) (quoting Gorman-Bakos v. Cornell Coop.

Extension of Schenectady Cnty., 252 F.3d 545, 551 n.2 (2d Cir.

2001)).

-32-

scrutiny. 972 F.2d at 1136. As noted, we concluded in Lynch that

Hyland I, a single circuit decision applying its own precedents,

did not suffice to clearly establish the right at issue. In

addition, both that case and its sequel, Hyland v. Wonder, 117 F.3d

405 (9th Cir. 1997) ("Hyland II"),14 relied in part on Janusaitis.

Neither Hyland decision considered the fact that in Janusaitis,

unlike in Hyland, state law required that the volunteer position at

issue be treated as equivalent to public employment for certain

purposes.

Between the two Hyland decisions, in Versarge v. Township

of Clinton, 984 F.2d 1359 (3d Cir. 1993), the Third Circuit

"assume[d], without deciding, that 'the opportunity to serve as a

volunteer [firefighter] constitutes the type of governmental

benefit or privilege the deprivation of which can trigger First

Amendment scrutiny.'" Id. at 1364 (quoting Hyland, 972 F.2d at

1135).

Several years later, in Andersen v. McCotter, 100 F.3d

723, 727 (10th Cir. 1996), the Tenth Circuit held that an intern

terminated from her position at a community corrections facility

was entitled to First Amendment protection. While the court

ultimately concluded that the plaintiff was an employee, it also

stated that her claim would not be defeated even if she were

14

Hyland I found that the loss of a volunteer position was

protected; Hyland II found that the right was clearly established

in 1988, when the plaintiff was terminated.

-33-

considered to be a volunteer. Id. Because it found the plaintiff

to be an employee, the court declined to decide whether it was

clearly established, as of March 1994, that volunteers were

entitled to First Amendment protection. Id. at 729.15 Instead, the

court relied on the unremarkable proposition that it had been

clearly established since 1968 that public employees were entitled

to such protection. Id. Most recently, in Mosely v. Board of

Educaction of Chicago, 434 F.3d 527 (7th Cir. 2006), the Seventh

Circuit found that the plaintiff stated a First Amendment claim

when she alleged that she had been denied the opportunity to

meaningfully participate in her role as a school committee

volunteer in retaliation for her protected activity. That case,

however, relied in part on another Seventh Circuit case which, like

Janusaitis, concluded that a volunteer firefighter could be

protected by the First Amendment based in part on a state statute

that treated volunteer firefighters as employees under the law.

Mosely, 434 F.3d at 535 (citing Brown v. Disciplinary Comm. of

Edgerton Volunteer Fire Dep't, 97 F.3d 969, 973-74 (7th Cir.

1996)).16

15

Although the court did not decide the issue, it did cite

Hyland I and Janusaitis after noting the defendants' argument that

volunteer protection was not clearly established.

16

Because the court was deciding a motion to dismiss for

failure to state a claim, neither a qualified immunity defense nor

its "clearly established law" component was at issue.

-34-

In sum, the Second, Seventh, and Ninth Circuits have

found that volunteer positions are entitled to constitutional

protection; however, these cases have relied in part, either

directly or indirectly, on state statutes which mandate that such

volunteers be treated as employees. The Tenth Circuit, albeit in

dicta, has concluded that volunteers enjoy First Amendment

protection without reliance on any such state statute. The Third

Circuit, like this circuit, has assumed without deciding that a

public volunteer position is a valuable government benefit, the

deprivation of which can trigger First Amendment scrutiny. At the

same time, no court has held that volunteers are not protected by

the First Amendment.

2. Law on Removal Versus Non-Reappointment

Whether volunteers are entitled to First Amendment

protection is only part of the equation. Clancy further argues

that, even if it was clearly established as of April 2006 that

removal from a public volunteer position triggers First Amendment

scrutiny, it was not clearly established that failure to reappoint

to a volunteer position triggers such scrutiny.

Strictly speaking, Clancy is correct. Although a number

of courts have subjected volunteer positions to First Amendment

scrutiny, those decisions have addressed removal from a volunteer

position, rather than non-reappointment to it. At the same time,

however, this distinction between removal and failure to reappoint

-35-

has been considered immaterial in cases where the plaintiff, unlike

Barton, is a public employee.

A plaintiff's lack of any right or entitlement to

employment does not defeat a First Amendment retaliation claim

based on denial of that employment. Perry, 408 U.S. at 597. In

Perry, the Supreme Court held that the nonrenewal of a nontenured

state college teacher's contract at the end of his one-year

contract triggered First Amendment scrutiny. The Court explained

that even if the plaintiff had no right to a valuable government

benefit, that benefit could not be denied simply because of his

protected speech. Id. Thus, the plaintiff's "lack of a

contractual or tenure 'right' to re-employment" was "immaterial to

his free speech claim." Id. at 597-98. The Court drew a

distinction between the plaintiff's First Amendment retaliation

claim, in which his lack of any entitlement or property interest in

his continued employment was "irrelevant," and his procedural due

process claim, in which those facts were "highly relevant." Id. at

599; accord Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429

U.S. 274, 283-84 (1977).

Applying these principles, we have held that because a

First Amendment claim does not depend on any right or entitlement

to continued employment, First Amendment protections apply with

equal force whether the public employee is terminated from a

position or not reappointed. See, e.g., Ward v. Hickey, 996 F.2d

-36-

448, 452 (1st Cir. 1993) ("In general, as [plaintiff] was a

nontenured teacher the School Committee could have refused to

rehire her without any reason at all. However, a school committee

violates the First Amendment . . . if it denies rehiring in

retaliation for a nontenured teacher's exercise of constitutionally

protected speech." (internal citations omitted)); Cheveras Pacheco

v. Rivera Gonzalez, 809 F.2d 125, 128 (1st Cir. 1987) (holding that

First Amendment protections against loss of employment based on

political affiliation "apply generally to an employee's right to

retain his public employment, and they do not distinguish between

employees discharged from a permanent position and those who fail

to receive a new appointment" (emphasis in original)).

3. Clearly Established Law

Leaving for another day the question of whether Barton

has stated a constitutional violation, we hold that as of April

2006, the law was not sufficiently clear to put Clancy on notice

that declining to reappoint Barton to the volunteer position of

Parks Commissioner in retaliation for his First Amendment

activities was unlawful.

First, it was not clearly established that the loss of an

unpaid volunteer position could form the basis of a First Amendment

retaliation claim. Neither this circuit nor the Supreme Court has

resolved the basic question of whether an unpaid volunteer position

is a valuable government benefit, the deprivation of which can

-37-

trigger First Amendment scrutiny. Although several decisions from

other jurisdictions have subjected volunteer positions to such

scrutiny, some did so in direct or indirect reliance on state

statutes that treat volunteers as employees. Others did so only in

dicta, and still others assumed this principle without deciding it.

This collection of precedent hardly amounts to the type of

"consensus . . . of persuasive authority" that would preclude a

misunderstanding as to the legality of non-reappointment of a

volunteer. Bergeron, 560 F.3d at 11.

Second, we are not aware of any cases holding or even

assuming that non-reappointment to a volunteer limited-term

position triggers First Amendment scrutiny. Although the

proscription on refusing to reappoint employees in retaliation for

engaging in protected speech was clearly established in 2006, it

does not necessarily follow that the failure to reappoint a

volunteer to a term position in retaliation for engaging in

protected speech was also clearly prohibited.

In sum, determining whether Clancy was liable for his

failure to reappoint Barton would require us to answer two

uncertain legal questions: (1) whether a volunteer position is a

valuable government benefit the loss of which can form the basis of

a First Amendment retaliation claim; and (2) whether, even if the

removal from a volunteer position triggers First Amendment

scrutiny, the failure to reappoint to a volunteer term position can

-38-

also trigger such scrutiny. Consequently, the dimensions of the

right at issue were far from "sufficiently clear that a reasonable

official would understand that what he is doing violates that

right." Anderson, 483 U.S. at 640.

C. Campaign of Retaliatory Harassment

Barton further contends that Clancy violated clearly

established law by conducting a campaign of harassment against him

in retaliation for his protected activity. Barton's claim of

retaliatory harassment is based on substantially the same facts as

his handicap harassment claim: Clancy's statements conveying his

disapproval of Barton being hired as the basketball coach and

Clancy's investigation into Barton's tax records and pension.17

We first survey the law relevant to Barton's claim of

retaliatory harassment before assessing the claim itself.

17

Clancy suggests in his brief on appeal that Barton's

retaliation claim in the district court was based only on the non-

reappointment to the Lynn Parks Commission, and not on the alleged

campaign of harassment. This contention is not supported by the

record. Barton's complaint alleged that Clancy took a series of

actions against Barton, including both the non-reappointment to the

Parks Commission and the acts of harassment set forth above, and

then broadly alleged that "the conduct of defendant Clancy, as set

forth above, constitutes a violation of plaintiff's rights to

freedom of speech . . . ." In his opposition to Clancy's motion

for summary judgment, Barton specifically argued that Clancy

retaliated against him by "engag[ing] in a relentless public

campaign to oust Mr. Barton from his job as basketball coach" and

by requesting records related to Barton's taxes and disability

pension. Clancy responded to this argument in his reply brief.

-39-

1. Law on Retaliatory Harassment

Public employees "do not forego all the protections of

the First Amendment by virtue of working for the government."

Foley v. Town of Randolph, 598 F.3d 1, 5 (1st Cir. 2010). The

Supreme Court's jurisprudence has long protected the First

Amendment rights "not only of the employees themselves, but of the

general public in receiving the well-informed views of government

employees engaging in civic discussion." Id. (internal quotation

marks omitted). In evaluating whether a challenged government

action violates a public employee's First Amendment right to

freedom of speech, we examine (1) "'whether the employee spoke as

a citizen on a matter of public concern,'" (2) "'whether the

relevant government entity had an adequate justification for

treating the employee differently from any other member of the

general public,'" and (3) "whether the plaintiff can show that the

protected expression was a substantial or motivating factor in the

adverse employment decision." Curran v. Cousins, 509 F.3d 36, 45

(1st Cir. 2007) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418

(2006)).

Clancy does not argue that Barton did not speak as a

citizen on matters of public concern, that the government had an

adequate justification for its treatment of Barton, or that

Barton's protected speech was not a substantial or motivating

factor in the alleged harassment. Indeed, the district court

-40-

reached conclusions in Barton's favor on each of these issues,18 and

Clancy does not dispute those determinations. Therefore, we do not

address these issues on appeal.

a. Employment Relationship

Clancy first argues, without citation to authority, that

there can be no constitutional violation in the absence of an

employer-employee relationship with Barton for purposes of the

coaching position. As discussed above, Clancy did not exercise

sufficient control over Barton's employment as a high school

basketball coach to qualify as his "employer" for purposes of

Massachusetts's antidiscrimination law. However, the fact that

Clancy was not Barton's employer for purposes of employment

discrimination law does not foreclose Barton's First Amendment

retaliation claim.

A traditional employment relationship is not a

prerequisite to a First Amendment retaliation claim. Official

retaliation is actionable because it "tend[s] to chill individuals'

exercise of constitutional rights." Powell, 391 F.3d at 17

18

The district court stated:

Plaintiff's allegations, if true, establish a

constitutional violation. . . . Plaintiff has produced

facts tending to show that (1) he engaged in speech on

matters of public concern; (2) his interest in speaking,

and the public's interest, outweighed any legitimate

governmental interest in the efficient performance of its

public function; and (3) the speech was a motivating

factor in Defendant's alleged retaliation.

-41-

(quotation marks omitted); see also Crawford-El v. Britton, 523

U.S. 574, 588 n.10 (1998) ("The reason why such retaliation offends

the Constitution is that it threatens to inhibit exercise of the

protected right."). Government actions that threaten to chill

protected activity can occur in a variety of factual contexts and

are not limited to cases in which the government actor is the

plaintiff's employer. See, e.g., Bd. of Cnty. Comm'rs v. Umbehr,

518 U.S. 668, 674 (1996) (holding that First Amendment protections

apply to government contractors as well as government employees,

noting that in either case government efforts "may chill speech on

matters of public concern"). Indeed, actionable retaliation may

occur outside the employment context altogether. See, e.g., El

Dia, Inc., 165 F.3d at 109-10 (retaliatory withdrawal of government

advertising from newspaper infringes on First Amendment rights);

Nestor Colón-Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32,

40-41 (1st Cir. 1992) (retaliatory denial of land use permit

violates First Amendment).

b. Adverse Employment Action

Clancy further contends that "Barton's inability to show

a tangible adverse employment action is fatal to his First

Amendment claim." Clancy emphasizes that Barton has not alleged

specific changes in his working conditions such as the loss of a

promotion.

-42-

For purposes of a First Amendment retaliation claim, even

in an employment setting, a plaintiff need not suffer an "adverse

employment action" as that term ordinarily is used in the

employment discrimination context. The term "adverse employment

action" first developed in the Title VII context "as a shorthand

for the statutory requirement that a plaintiff show an alteration

in the material terms or conditions of his employment." Bergeron,

560 F.3d at 7-8 (emphasis added). However, there is no similar

requirement for a First Amendment claim filed pursuant to § 1983.

See id. at 8. Instead, "the 'adverse employment action' inquiry in

the section 1983 context focuses on whether an employer's acts,

viewed objectively, place substantial pressure on the employee's

political views" – or, more generally, on whether the defendants'

acts would have a chilling effect on the employee's exercise of

First Amendment rights.19 Id. at 8 (citing Agosto-de-Feliciano v.

Aponte-Roque, 889 F.2d 1209, 1218 (1st Cir. 1989) (en banc)); see

also Rivera-Jiménez v. Pierluisi, 362 F.3d 87, 94 (1st Cir. 2004)

("[T]he standard for showing an adverse employment action is lower

in the First Amendment retaliation context than it is in other

contexts (such as Title VII) . . . .").

19

Our precedent derives primarily from the employment setting,

and the standards are thus typically articulated for that context.

However, as we have observed, the First Amendment principles also

are applicable where the plaintiff is not in an employment

relationship with the defendant. This case is something of a

hybrid. Clancy was not Barton's employer, but his actions targeted

Barton's public employment.

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Thus, the pertinent question in a § 1983 retaliation

case based on the First Amendment is whether the defendant's

actions would deter "a reasonably hardy individual[]" from

exercising his constitutional rights. Agosto-de-Feliciano, 889

F.2d at 1217. A campaign of informal harassment, for example,

would support a First Amendment retaliation claim if the alleged

harassment would have such a chilling effect. See id. (informal

harassment short of actual or constructive discharge can support

§ 1983 retaliation claim if "government's actions are sufficiently

severe to cause reasonably hardy individuals to compromise their

political beliefs and associations"); accord Martinez-Vélez v. Rey-

Hernández, 506 F.3d 32, 42 (1st Cir. 2007) (same); see also

Rosario-Urdaz v. Velazco, 433 F.3d 174, 179 (1st Cir. 2006)

(stating that a "substantial campaign of harassment, instigated or

knowingly tolerated by superiors," can form the basis for a § 1983

claim).

Even "relatively minor events" can give rise to § 1983

liability, Rivera-Jiménez, 362 F.3d at 94, so long as the

harassment is not so trivial that it would not deter an ordinary

employee in the exercise of his or her First Amendment rights. See

id. at 94-95 (retaliatory harassment of plaintiff, including denial

of special benefits and assignments, was sufficiently adverse to

form basis for First Amendment claim); see also, e.g., Coszalter v.

City of Salem, 320 F.3d 968, 976-77 (9th Cir. 2003) (campaign of

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retaliatory acts, including disciplinary investigation, change in

duties, and verbal harassment and humiliation, was sufficient to

support First Amendment claim); Pieczynski v. Duffy, 875 F.2d 1331,

1335-36 (7th Cir. 1989) (campaign of minor harassments, including

removing plaintiff's long distance phone line, denying requests for

vacation time, confining duties to paperwork, and not allowing her

to change lunch hour, was sufficient to support First Amendment

claim); Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)

("campaign of petty harassments," including groundless reprimands

of plaintiff and holding her up to ridicule for bringing a birthday

cake to the office, supported First Amendment claim). But see

McKee v. Hart, 436 F.3d 165, 170-71 (3d Cir. 2006) (three comments

by supervisor that were critical of plaintiff's job performance,

without more, were too trivial to deter a person of ordinary

firmness from exercising First Amendment rights).

2. Clearly Established Law

We have no difficulty concluding that "the contours of

the allegedly infringed right," Maldonado, 568 F.3d at 269, were

clearly established at the time of Clancy's actions in 2006 and

2007. Precedents from this court and the Supreme Court

demonstrated that a First Amendment retaliation claim requires

neither a formal employment relationship, see Umbehr, 518 U.S. at

674, nor an "adverse employment action" as that term is used in

Title VII, see Rivera-Jiménez, 362 F.3d at 94. Moreover, we had

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held that even "relatively minor events" can give rise to liability

for retaliation under § 1983, see id., and that a campaign of

harassment can support a First Amendment retaliation claim if the

harassment would deter a reasonably hardy individual in the

exercise of his or her First Amendment rights, see, e.g.,

Rosario-Urdaz, 433 F.3d at 179; Agosto-de-Feliciano, 889 F.2d at

1217.

Given the facts of this case, however, we need not decide

whether Clancy's conduct amounted to unconstitutional retaliation

based on these established principles. Rather, because we

conclude that Clancy lacked "fair warning that his particular

conduct was unconstitutional," Maldonado, 568 F.3d at 269, we hold

that Clancy is entitled to qualified immunity.20

For the most part, Clancy's statements consisted of

substantively appropriate speech criticizing the decision to hire

Barton as a city-employed coach while he was receiving a disability

pension from the City. In his letters, Clancy invoked "the

financial interests of the City of Lynn" and "the skyrocketing

increases in pension costs" that were "put[ting] a strain on

municipal budgets and the City of Lynn's tax rate." He also asked

to review public documents related to Barton's pension and payment

of taxes.

20

To be clear, aside from this holding, we are not intimating

anything about the constitutionality of Clancy's conduct.

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In essence, Clancy instigated a public controversy about

an unusual hiring decision that had larger policy implications.

Given Clancy's focus on that decision, the legitimate fiscal-

responsibility thrust of his commentary, and the limited nature of

his records inquiry, it is far from clear that Clancy's actions

were sufficiently oppressive to chill the speech of a reasonably

hardy individual. In these particular circumstances, we cannot say

that a reasonable official in Clancy's "shoes 'would have

understood that his conduct violated the Plaintiff['s]

constitutional rights.'" Raiche v. Pietroski, 623 F.3d 30, 36 (1st

Cir. 2010) (quoting Maldonado, 568 F.3d at 269) (alteration in

original). Accordingly, Clancy is entitled to qualified immunity

on Barton's retaliation claim.

IV.

For the reasons expressed in this opinion, the district

court's grant of summary judgment is affirmed. The parties shall

bear their own costs on appeal.

So ordered.

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