Lynch v. City of Boston

United States Court of Appeals

For the First Circuit

No. 98-1076

HELEN A. LYNCH,

Plaintiff, Appellant,

v.

CITY OF BOSTON, ET AL.,

Defendants, Appellees.

No. 98-1112

HELEN A. LYNCH,

Plaintiff, Appellee,

v.

CITY OF BOSTON, ET AL.,

Defendants, Appellees,

KELLEY CRONIN,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Stahl, Circuit Judge,

Aldrich and Campbell, Senior Circuit Judges.

Ellen J. Messing with whom James S. Weliky, Messing &

Rudavsky, P.C., Stephen M. Voltz, Nathan & Voltz and Carolyn Koch

were on brief for plaintiff, Helen A. Lynch.

Kevin S. McDermott with whom Merita A. Hopkins, Corporation

Counsel, Dawna McIntyre, Assistant Corporation Counsel, City of

Boston Law Department, were on brief for City of Boston, et al.

June 16, 1999

CAMPBELL, Senior Circuit Judge. Helen Lynch brought this

action in the district court against the City of Boston and, inter

alia, Kelley Cronin, a City employee. Lynch alleged that Cronin

told her to "clear out your desk" and removed Lynch from her

volunteer position on the Mayor's Hunger Commission in retaliation

for a phone call Lynch made to the Mayor's office during which

Lynch complained that the City's Emergency Shelter Commission

("ESC"), of which Cronin served as the Executive Director, was

under-staffed at a time when homeless persons in the City were in

need of services. Lynch alleged that the statement that she must

"clear out her desk" was tantamount to a refusal by Cronin to renew

her contract of employment as Can Share coordinator and that this

adverse action, along with Lynch's removal from the Hunger

Commission, violated the First Amendment to the United States

Constitution and 42 U.S.C. 1983. Lynch also brought claims under

Massachusetts law, including a claim against Cronin for intentional

interference with her advantageous relations with the City. The

jury answered special verdict questions on Lynch's section 1983 and

intentional interference with advantageous relations claims, and

awarded $40,000 in compensatory damages and $10,000 in punitive

damages against Cronin. The district court entered judgment in

favor of Lynch on the section 1983 and intentional tort claims

against Cronin and in favor of defendants on the remaining claims.

The parties filed post-judgment motions. The district

court thereupon entered an amended judgment holding (1) that Cronin

was entitled to qualified immunity on Lynch's First Amendment

claim, both as to the allegations concerning her failure to re-hire

Lynch for the 1994 Can Share program and Lynch's removal from the

Mayor's Hunger Commission, (2) that the City was not liable under

42 U.S.C. 1983, (3) that Lynch was entitled to $4,000 in damages

for emotional distress on her intentional tort claim, and (4) that

Lynch would be entitled to $10,000 in punitive damages and $60,000

in attorneys' fees if section 1983 liability were reinstated

against Cronin on appeal.

In these consolidated appeals, Lynch challenges the

district court's qualified immunity and municipal liability

rulings, asserts that the district court erred in reducing her

requested attorneys' fees and costs, and seeks a new trial because

of alleged errors in evidentiary rulings and jury instructions. In

her cross-appeal, Cronin asserts that the district court erred in

awarding Lynch $4,000 in emotional distress damages in connection

with her intentional tort claim because Lynch failed to demonstrate

any pecuniary loss, as Cronin asserts is required under

Massachusetts law.

For the reasons that follow, we affirm, although on

grounds different from those relied upon by the district court in

its judgment dismissing the section 1983 claims against Cronin and

the City. We conclude that Lynch is not entitled to a new trial.

Finally, we reverse and vacate the district court's award of

emotional distress damages in connection with Lynch's intentional

tort claim.

I. BACKGROUND

We recite the underlying facts in the light most

favorable to the jury's verdict. See Alvarez-Fonseca v. Pepsi Cola

of Puerto Rico Bottling Co., 152 F.3d 17, 21 (1st Cir. 1998). As

the coordinator of the City's Can Share food drive, Lynch worked as

a seasonal employee of the City of Boston under a series of

contracts beginning in 1987. The purpose of the Can Share program

was to provide food for the homeless and hungry in the Boston area.

The program was conducted under the auspices of the City's

Emergency Shelter Commission ("ESC"), and took place annually over

the course of several months usually beginning in October and

concluding in December. Each year, Lynch was paid on a weekly

basis while the drive was in progress and, sometimes, during

periods just before and after the drive. During the remainder of

each year, when not on the City's payroll, Lynch typically

performed pre- and post-drive tasks without reimbursement. In

addition to serving as the Can Share coordinator, Lynch had also

been appointed each year since 1986 to serve, on a volunteer basis,

on the Mayor's Hunger Commission, an honorary body formed to

address city-wide hunger issues.

In December, 1993, Lynch received a flyer that had been

distributed to all City employees by the newly elected Mayor,

Thomas Menino, in which the Mayor encouraged employees to provide

suggestions to his office for the improvement of City services. On

January 12, 1994, Lynch placed what she intended to be an anonymous

phone call to the Mayor's office. During the phone call, Lynch

complained about a lack of staffing at the ESC that day.

Unfortunately for Lynch, her call did not remain anonymous.

Lynch's call was answered by John Greeley, a City employee who was

the husband of defendant Kelley Cronin, Lynch's supervisor at the

Can Share program and the Executive Director of the ESC. Greeley

told Cronin of his conversation with Lynch. Cronin immediately

requested Lynch to come to City Hall for a meeting concerning the

phone call.

On January 13, the day after Lynch's telephone call to

the Mayor's office, Lynch met with Cronin at the ESC office. Lynch

was not then on the ESC payroll, having received her last paycheck

in connection with the 1993 Can Share drive in December, 1993.

Nor, at the time, had she been specifically told she would be re-

hired for the 1994 Can Share drive that was to commence in the fall

of 1994. Cronin was upset that Lynch had complained to the Mayor's

office instead of speaking to her directly. At the conclusion of

the meeting, which was attended only by Lynch and Cronin, Cronin

told Lynch to "clear out your desk." Both Lynch and Cronin

testified that they did not specifically discuss whether Lynch

would be working on the forthcoming 1994 Can Share campaign. After

the meeting, Lynch returned to her desk and continued working on a

letter she had begun drafting.

Later the same day, Lynch met with Ann Maguire, the

former director of the ESC who had been promoted to director of the

City's Office of Neighborhood Services and Office of Boards and

Commissions, and was responsible in that capacity for overseeing

the ESC. Lynch told Maguire about her earlier meeting with Cronin

and expressed the belief that she had been "fired." Maguire

assured Lynch that she had not been fired, that she need not clear

out her desk, and that she should continue working on the 1993 Can

Share wrap-up tasks. Maguire suggested that Lynch wait a few

months before approaching Cronin about the 1994 Can Share drive,

and assured Lynch that by that time everything would be fine.

Later on January 13, 1994, Lynch met again with Cronin.

At this second meeting, Cronin testified that she told Lynch that

she had not been terminated. Cronin told Lynch that she had asked

her to "clear out her desk" because space was needed for a new

full-time employee who was coming to work at the ESC. Cronin also

testified that she told Lynch to clear out the desk because the

1993 Can Share campaign had ended and Lynch no longer needed the

desk. Cronin and Lynch did not specifically discuss whether Lynch

would be working on the 1994 Can Share drive. Lynch testified,

however, that Cronin asked her what she was working on with regard

to Can Share and that the two discussed goals for the 1994 Can

Share drive and various tasks that needed to be performed to meet

those goals. Lynch also testified that Cronin gave her the

"impression" that she (Lynch) would be working on the 1994

campaign. In fact, Lynch testified on cross-examination that she

believed, based upon her meeting with Maguire and this second

meeting with Cronin, that she had a "verbal contract" to work on

the 1994 Can Share drive:

Q: Is it your contention that you had a

contract to conduct the 1994 Can Share drive?

A: Yes.

Q: And this verbal contract that you allege

was made was made between you and Kelly Cronin

on January 13, 1994, the time of your meeting,

is that true?

A: Yes.

Q: And it was that meeting on January 13, 1994

which formed the basis of your understanding

or belief of what the contract was, is that

true?

A: Yes.

Q: And you believed that the contract was to

conduct the 1994 can Share campaign, is that

true?

A: Yes.

After the second meeting with Cronin, Lynch returned to

her desk. She cleared out the desk and placed her belongings in

boxes, which she left in the cubicle near the desk. Thereafter,

Lynch continued to prepare for the 1994 Can Share drive. She

prepared a budget for the 1994 campaign, and met with a T-shirt

vendor to discuss a possible contract for shirts commemorating the

ten-year anniversary of the Can Share program. At Cronin's

request, Lynch arranged and attended a meeting with the City

comptroller to discuss the budgets for the 1993 and 1994 Can Share

drives.

In April, 1994, Cronin reorganized the ESC. As part of

that reorganization, Cronin created a new full-time position known

as "Staff Assistant II." The duties of Staff Assistant II

consisted of the Can Share coordinator duties, as well as other

related anti-hunger duties. In May, 1994, unbeknownst to Lynch,

Cronin hired James Markland for the Staff Assistant II position.

In May, 1994, Markland asked to meet with Lynch to discuss the 1994

Can Share budget. Lynch testified that it was at this meeting that

she first learned that Markland was working on the 1994 campaign.

In June, 1994, Cronin told Lynch that she would not be working on

the 1994 Can Share drive as a paid employee, but welcomed her

assistance in a volunteer capacity. Lynch testified that prior to

this, "not a soul" had informed her that she would not be working

on the 1994 Can Share drive. Later, in August, 1994, Cronin

informed Lynch that she had been removed from the Mayor's Hunger

Commission.

Lynch sued the City, Cronin, Greeley, and Maguire,

claiming that the decision not to hire her for the 1994 Can Share

drive and her removal from the Hunger Commission were in

retaliation for the January 12, 1994 phone call. In her five-count

complaint, which was filed in state court but subsequently removed,

on the basis of federal question jurisdiction, to federal district

court in Boston, Lynch alleged that the termination of her

relationships with the ESC and the Hunger Commission, along with

the hiring of Markland for the Staff Assistant II position,

violated 42 U.S.C. 1983 and the First Amendment to the United

States Constitution, the Massachusetts Whistleblower Statute (Mass.

Gen. L. c. 149, 185(b)(1) and (b)(3)), and the Massachusetts

Equal Rights Act (Mass. Gen. L. c. 93, 102, 103). Lynch also

brought a state law tort claim in which she alleged that Cronin had

intentionally interfered with her advantageous relations with the

City.

The case was submitted to a jury in two phases. At the

conclusion of Phase I, which was devoted to issues of liability,

the jury answered detailed special questions, submitted pursuant to

Fed. R. Civ. P. 49(a). See Lynch v. City of Boston, 989 F. Supp.

275, 302-309 (D. Mass. 1997) (reprinting special verdict form).

The jury answered several questions in Lynch's favor on her section

1983 claim against Cronin and her tort claim against Cronin for

intentional interference with advantageous relations.

The jury found that at the time of the telephone call on

January 12, 1994, Lynch was a former employee of the ESC under one

of a succession of temporary contracts for part-time employment

during part of the year. See id. at 303. The jury also found that

on January 12, 1994, Lynch had a reasonable expectation of

employment for the 1994 Can Share program. Id. at 304. In

instructing Lynch to "clear out her desk," the jury found that

Cronin had acted "with a motive of retaliating for Ms. Lynch's

telephone call of January 12, 1994." Id. In so finding, the jury

rejected as pretextual the non-retaliatory reasons offered by

Cronin for telling Lynch to clear out her desk (the need for desk

space and the end of the 1993 Can Share program). See id. at 304-

05. With regard to the Staff Assistant II position created in May,

however, the jury effectively found that Lynch was not qualified

for the position, and that Cronin had not hired Markland in

retaliation against Lynch for her telephone call. See id. at 306.

There was no finding or other suggestion that the reorganization

itself was retaliatory.

At the conclusion of Phase I, the jury awarded $24,000

in damages for harm to Lynch's reputation because of the non-

renewal of her Can Share contract, $12,000 in damages for injury to

Lynch's reputation as a result of her removal from the Mayor's

Hunger Commission, and $4,000 in emotional distress damages

resulting from Cronin's statement that Lynch should "clear out her

desk." See id. at 308. At the close of Phase II of the trial,

which was devoted solely to determining whether the defendants

should pay punitive damages, the jury found that Cronin had acted

callously and with reckless disregard as to Lynch's First Amendment

rights and awarded Lynch $10,000 in punitive damages. See id. at

309.

The district court entered judgment for Lynch on the

section 1983 and intentional interference with advantageous

relations claims brought against Cronin, and in favor of defendants

on all remaining counts. Subsequently, Cronin filed a Motion for

Judgment as a Matter of Law or in the Alternative for a New Trial

or Remittitur arguing, inter alia, that she was qualifiedly immune

from Lynch's section 1983 claim. Lynch filed a Motion to Alter or

Amend the Judgment, in which she argued that both the City and

Cronin should be held liable for compensatory damages under section

1983 and that emotional distress damages should be awarded against

Cronin under both the section 1983 claim and the intentional

interference claim. Lynch also filed an Application for Attorneys'

Fees and Costs in which she sought $370,000 in fees and costs as a

prevailing party in a civil rights action. See 42 U.S.C. 1988.

After considering the parties' submissions, the district

court entered an amended judgment. In its written opinion, the

court identified the violation of Lynch's First Amendment rights as

having occurred on January 13, 1994 when Cronin told Lynch to

"clear out her desk." At that time, the ESC "had yet to be

reorganized . . . [and] . . . a possibility still existed that the

City of Boston would contract with the plaintiff for the 1994 Can

Share season." 989 F. Supp. at 290. The district court rejected

Cronin's argument that Lynch could not then have been discharged

because she was not then an employee. Stressing that the question

was not whether she was discharged, but rather whether an adverse

employment action or decision occurred, the court noted that a

retaliatory non-renewal of contract or failure to re-hire fitted

within that concept. The district court also rejected Cronin's

defense that no adverse employment decision occurred because the

jury found that Lynch's old Can Share position, which was the only

one available in 1994, was incorporated as a duty of the new Staff

Assistant II position, for which Lynch was not qualified. The

court said,

The fact that the defendants chose to

reorganize and redefine a job position after

January 13, 1994 cannot have the retroactive

effect of shielding the defendant from

liability for a violation that had already

occurred [i.e. on January 13].

Id.

The district court concluded, therefore, that Cronin's

January 13 "clear out your desk" order was a cognizable violation

of Lynch's First Amendment rights. Nevertheless, the court went on

to conclude that Cronin was entitled to qualified immunity with

regard to Lynch's claim that Cronin's refusal to re-hire her for

the 1994 Can Share program violated the First Amendment, and that

the City was not liable under section 1983. See Lynch, 989 F.

Supp. at 285, 289. The district court also ruled that Lynch's

claim for harm to her reputation associated with the loss of her

position on the Hunger Commission was defeated by Cronin's

qualified immunity. See id. at 297. Accordingly, the court

eliminated the jury's award of $24,000 in connection with Lynch's

section 1983 claim based on the non-renewal of Lynch's Can Share

contract, and also eliminated the $12,000 award for harm to Lynch's

reputation caused by her removal from the Hunger Commission. The

court allocated the jury's award of $4,000 for emotional distress

damages to Lynch's intentional interference tort claim. Finally,

the district court entered an alternative amended judgment awarding

Lynch $10,000 in punitive damages and $60,000 in attorneys' fees in

the event the section 1983 claim was reinstated on appeal.

In these appeals, the parties ask us to decide (1)

whether Cronin was entitled to qualified immunity with regard to

Lynch's claim that Cronin's refusal to re-hire her for the 1994 Can

Share program and her removal from the Hunger Commission violated

the First Amendment and section 1983, (2) whether the City is

liable under section 1983 for a violation of Lynch's First

Amendment rights, (3) whether, assuming there is liability under

section 1983, the district court erred in capping Lynch's

attorneys' fees and costs in the alternative amended judgment at

$60,000, (4) whether Lynch is entitled to a new trial as a result

of several allegedly erroneous evidentiary rulings made by the

district court and allegedly erroneous jury instructions, (5)

whether, if Lynch's section 1983 claim is not reinstated, she is

nevertheless entitled to the jury's award of $12,000 for loss of

reputation caused by Lynch's removal from the Hunger Commission,

under her state law claim for intentional interference with

advantageous relations, and (6) whether Lynch was entitled, under

Massachusetts law, to the award of $4,000 in emotional distress

damages on her claim of intentional interference with advantageous

relations.

II. DISCUSSION

We will proceed first with the various issues raised by

Lynch in her appeal. We will then turn to the sole issue raised in

Cronin's cross-appeal: whether the district court erred in

awarding $4,000 in emotional distress damages in connection with

the intentional interference with advantageous relations tort

claim.

A. Section 1983 Liability and Qualified Immunity

After it received the jury's special verdict form, the

district court granted judgment as a matter of law pursuant to Fed.

R. Civ. P. 50(b) in favor of Cronin on Lynch's section 1983 claim

on the ground that Cronin was qualifiedly immune from suit. We

review the district court's decision de novo, taking the facts in

the light most favorable to Lynch. See Tang v. Rhode Island, 163

F.3d 7, 11 (1st Cir. 1998).

We need not reach the issue of qualified immunity,

however, unless Lynch has demonstrated conduct that rises to the

level of a constitutional violation. See Siegert v. Gilley, 500

U.S. 226, 232 (1991); see also Sacramento v. Lewis, 523 U.S. 833,

118 S. Ct. 1708, 1714 n. 5 (1998). Lynch's First Amendment claim

against Cronin rests on her contentions that she was (1) not re-

hired for the 1994 Can Share program and (2)removed from the Hunger

Commission in retaliation for her phone call to the Mayor's office

on January 12, 1994. Thus, we first examine whether Lynch has

shown any cognizable First Amendment injury at all with regard to

Cronin's failure to re-hire her for the 1994 Can Share campaign.

In the usual case, a plaintiff who claims to have been

terminated or not re-hired for retaliatory reasons has an existing

employment relationship with her employer at the time of the

adverse employment decision. See Perry v. Sindermann, 408 U.S.

593, 597 (1972) (non-tenured professor cannot be discharged in

retaliation for protected speech); Rankin v. McPherson, 483 U.S.

378, 383 (1987) (probationary employee working for employer at time

of discharge); Cheveras Pacheco v. Rivera Gonzalez, 809 F.2d 125,

129 (1st Cir. 1987) (transitory employee with ongoing employment

relationship). Here, the jury found that on January 13 Lynch was

a former employee but one with a reasonable expectation of future

employment. The district court rejected Cronin's argument, which

she presses again on appeal, that a mere former employee has no

rights under the First Amendment in this situation. The court

concluded, in effect, that Lynch's reasonable expectancy that in

1994 she would again be hired to coordinate the Can Share drive

could not be cast aside in retaliation for her protected speech,

under the doctrine announced in Perry v. Sindermann and progeny.

We may assume, although we need not decide, that the

district court was correct in its conclusion that Lynch's

expectation of being re-hired was a valuable governmental benefit

that could not be denied in retaliation for protected speech. See

Perry v. Sindermann, 408 U.S. at 597. But even if the First

Amendment shielded Lynch from not being re-hired by the City of

Boston because of what she had said on the telephone on January 12,

Lynch must still demonstrate that the adverse employment action,

i.e. the refusal to re-hire, actually occurred on January 13. The

jury did find that Cronin's "clear out your desk" statement, made

on that date, was in retaliation for Lynch's critical phone call to

the Mayor's office. But Lynch has not argued in her appellate

brief, and the district court did not indicate, that it was the

literal use of a desk that was the valuable benefit denied in

violation of First Amendment rights. Rather Cronin's "clear out

your desk" statement is presented both by Lynch and by the district

court as a kind of shorthand method of informing Lynch that the

City of Boston would not re-hire her, as it had in the past, to

coordinate the 1994 Can Share campaign. The district court found

that Lynch had a reasonable expectation of employment by the City

on January 13 and that Cronin's telling her to "clear out her desk"

interfered with that expectation and constituted a violation of

Lynch's First Amendment rights on that date. See Lynch, 989 F.

Supp. at 290, 294; see also id. at 290 (finding that "an adverse

employment action, or decision, in a broader sense, including the

failure to rehire, is what the court must examine").

The determination that Lynch's First Amendment rights had

been violated on January 13, 1994, and not several months later

when she was expressly denied re-employment, is pivotal to the

district court's finding of a section 1983 violation. The jury

found that Lynch was not qualified for the later-created Staff

Assistant II position, and that appointment of another person to

that position was not in retaliation for the January 12 phone call.

See infra. We therefore review for clear error the district

court's implied supplemental finding that Cronin's "clear out your

desk" statement made during the first of two conversations between

Lynch and Cronin on January 13, 1994, was tantamount to an adverse

employment action on that date, notifying Lynch that she would not

be rehired by the City for the 1994 Can Share post. See Fed. R.

Civ. P. 49(a); Anderson v. Cryovac, Inc., 862 F.2d 910, 916 (1st

Cir. 1988).

Our reading of the record indicates that, while Cronin's

"clear out your desk" statement might initially have conveyed such

a message, that interpretation was later dispelled on the same day

as the result of further conversation between Lynch and Cronin.

Reviewing Lynch's own testimony of what transpired on January 13,

we believe it was clearly erroneous for the district court to infer

that Cronin had communicated to Lynch an adverse employment

decision on that date such as would support the finding of a

constitutional violation.

It is undisputed that nothing specific was said

concerning Lynch's re-employment by the 1994 Can Share program

during the first meeting between Lynch and Cronin on January 13,

1994, at which Lynch was told to "clear out her desk." Standing

alone, however, the statement could reasonably have conveyed to

Lynch that she was no longer welcome in the program, hence would

not be re-hired; Lynch, indeed, testified to believing that she had

just been "fired," and so reported to Ann Maguire. But to conclude

that Lynch was advised on that day that the opportunity to work on

the 1994 Can Share drive had been irretrievably withdrawn ignores

the evidence of what next occurred, as well as Lynch's further

testimony concerning her own understanding of her future employment

prospects.

After the first meeting with Cronin, Lynch testified she

spoke with Maguire, Lynch's former supervisor who was now in a

position senior to Cronin. Maguire assured Lynch that she had not

been fired. A second meeting then took place on January 13 between

Lynch and Cronin, which, according to Lynch's own testimony, left

her with the "impression" that she would in fact be working on the

1994 Can Share drive. Lynch in fact testified unequivocally that

she had a contract to conduct the 1994 Can Share drive as the

result of her meeting on January 13 with Kelly Cronin. On the very

day of the "clear out your desk" statement, Lynch and Cronin

discussed goals and tasks relating to the 1994 campaign, and Lynch

developed a budget for the 1994 Can Share. Further, at Cronin's

request, Lynch arranged a meeting with the City comptroller to

review the 1993 and 1994 Can Share budgets and attended the

meeting. Lynch testified that "not a soul" informed her that she

would not be working on the 1994 Can Share drive until June, 1994.

Hence while Cronin's "clear out your desk" statement

might, in isolation, support the district court's finding that her

rights were then violated (viz., that Cronin had thereby

communicated her unwillingness to re-hire Lynch in retaliation for

her speech the previous day), that conclusion is undermined by

Lynch's own testimony as to how matters were left on the day. The

record clearly demonstrates that following the second meeting

between Lynch and Cronin, neither of the parties continued to

interpret Cronin's "clear out your desk" statement to be tantamount

to a decision not to re-hire Lynch for the 1994 campaign. To the

contrary, Lynch testified she acquired then a "verbal contract" to

be re-hired. Under these circumstances, we do not see how Cronin's

"clear out you desk" statement whatever might initially be made

of it can be equated with Cronin's having made and communicated

a decision on January 13, 1994 not to re-hire Lynch for the next

Can Share drive. We are, therefore, unable to find sufficient

basis in the record for the district court's finding that Lynch's

First Amendment rights were violated on that date.

An adverse employment decision was, of course,

communicated in June, 1994, when Lynch was told that she would not

be re-hired for the 1994 Can Share drive. Cf. Delaware State

College v. Ricks, 449 U.S. 250, 258 (1980) (alleged discrimination

in employment decision occurred for purposes of statute of

limitations at the time the tenure decision was made and

communicated to employee). But, as the district court suggested,

see note 6, supra, the jury effectively found that the refusal to

re-hire on that date did not constitute a First Amendment

violation. In April, 1994, Cronin had reorganized the ESC and had

eliminated Lynch's prior position, assigning those

responsibilities, in addition to several other duties, to James

Markland, who was hired in May, 1994 for the Staff Assistant II

position. As noted, the jury supportably found that Cronin did not

hire Markland in order to retaliate against Lynch for her January

12, 1994 phone call. The jury findings also indicate that Lynch

was not believed to be qualified for the Staff Assistant II

position. Thus, Cronin has demonstrated that she would not have

hired Lynch for the 1994 Can Share drive regardless of her

protected speech. Cf. Mt. Healthy City Sch. Dist. v. Doyle, 429

U.S. 274, 283-84 (1977) (providing that employer in First Amendment

retaliation case is not liable if it establishes that the same

decision would have been made even in the absence of protected

speech). Accordingly, with regard to the portion of Lynch's

section 1983 claim based upon the decision not to re-hire her for

the 1994 Can Share, we conclude that Lynch has failed to

demonstrate any violation of the First Amendment.

Lynch's claim based upon the termination of her service

as a volunteer on the Hunger Commission is a somewhat different

matter. There is no dispute that Cronin's decision to terminate

Lynch's service on the Hunger Commission was communicated to Lynch

in August, 1994. We assume, 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. See Perry v. Sindermann, 408

U.S. at 597. " The district court ruled that Cronin was entitled to

qualified immunity with regard to this adverse employment action.

We agree.

Government officials have qualified immunity from

personal liability for actions taken while performing discretionary

functions. They "generally are shielded from liability for civil

damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known." Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). See El Dia, Inc. v. Rosello, 165 F.3d 106,

109 (1st Cir. 1999). If the right the government allegedly

violated was clearly established at the time of the challenged

conduct, "the immunity defense ordinarily should fail, since a

reasonably competent public official should know the law governing

his conduct." Harlow, 457 U.S. at 818-19. The Supreme Court has

held that for a right to be clearly established,

[t]he contours of the right must be

sufficiently clear that a reasonable official

would understand that what he is doing

violates that right. This is not to say that

an official action is protected by qualified

immunity unless the very action in question

has previously been held unlawful; but it is

to say that in the light of pre-existing law

the unlawfulness must be apparent.

Anderson v. Creighton, 483 U.S. 635, 640 (1987).

It was not "clearly established" as of August, 1994, when

Lynch removed Cronin 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).

Lynch 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 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.

Lynch relies primarily upon a Ninth Circuit decision in

which the court, applying its own precedents, held that volunteer

status is a valuable governmental privilege that cannot be denied

on the basis of protected speech. See Holland v. Wonder, 972 F.2d

1129, 1135 (9th Cir. 1992). A single decision from another court

of appeals applying its own precedents is plainly insufficient to

meet the requirement "that in the light of pre-existing law the

unlawfulness must be apparent" to a reasonable government official.

Anderson, 483 U.S. at 640. See also El Dia, 165 F.3d at 110 n.3

(concluding that precedents from outside this circuit may be

relevant, depending upon, inter alia, "the location and level of

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

factual similarity to the facts before this Court"). While, as

said, the opportunity to serve as a volunteer may be a valuable

governmental benefit or privilege within the Perry v. Sindermann

doctrine, we cannot say that the law was "clearly established" in

August, 1994, when Lynch was told by Cronin that she would be

removed from the Hunger Commission, that Lynch had a right to

continue to serve as a volunteer on a government commission that

could not be denied on the basis of constitutionally protected

speech. Accordingly, we affirm the district court's ruling that

Lynch "cannot overcome qualified immunity with respect to her claim

regarding her status on the Hunger Commission." Lynch, 989 F.

Supp. at 297.

To summarize, there are two aspects to Lynch's section

1983 claim against Cronin. With regard to the portion of Lynch's

section 1983 claim that is based upon Cronin's refusal to re-hire

Lynch for the 1994 Can Share program, Lynch has failed to

demonstrate a violation of the First Amendment. As to that portion

of the section 1983 claim involving Lynch's removal from the Hunger

Commission, we conclude that Cronin is entitled to qualified

immunity.

B. Municipal Liability

At trial, Lynch claimed that the City was also liable

under section 1983 for the deprivation of her First Amendment

rights caused by Cronin's refusal to re-hire her for the 1994 Can

Share program. In order to prevail under section 1983 against the

City, Lynch must establish that municipal policy or custom caused

a deprivation of federal rights. See Monell v. New York City Dep't

of Social Serv., 436 U.S. 658, 694 (1977). We have concluded,

supra, that no deprivation of Lynch's First Amendment rights

occurred in connection with the refusal by Cronin to re-hire her

for the 1994 Can Share drive. Thus, the City is not liable under

section 1983.

C. Attorney's Fees

After the district court entered the original judgment,

Lynch filed an Application for Attorneys' Fees and Costs in which

she sought, pursuant to 42 U.S.C. 1988, a total of $359,664.80 in

fees and $10,159.73 in costs. Section 1988 allows a "prevailing

party" in a civil rights action to recover a "reasonable attorney's

fee." 42 U.S. C. 1988(b). As Lynch did not prevail as to any

aspect of her section 1983 claim, we uphold the district court's

determination that she was not entitled to attorney's fees and

costs.

D. Alleged Evidentiary Errors and the Whistleblower Claim

Lynch asserts that the district court made three

evidentiary rulings that deprived her of a fair trial with regard

to her state law "whistleblower" claim. We review the district

court's evidentiary rulings for abuse of discretion. See Acosta-

Mestre v. Hilton Intern. of Puerto Rico, 156 F.3d 49, 57 (1st Cir.

1998). In the event we discern error, we must determine whether

the error was harmless. "Our inquiry is whether [exclusion or

admission] of the evidence affected plaintiff's substantial

rights." Vincent v. Louis Marx & Co., Inc., 874 F.2d 36, 41 (1st

Cir. 1989). See also Fed. R. Civ. P. 61. "The central question is

whether this court 'can say with fair assurance . . . that the

judgment was not substantially swayed by the error.'" Lubanski v.

Coleco Indus., Inc., 929 F.2d 42, 46 (1st Cir. 1991) (citations

omitted).

Lynch first assails the district court's refusal to honor

a pretrial stipulation entered into by the parties. The

stipulation purported to allow the authors of letters written by

Lynch's supporters in the community to Mayor Menino that attested

to Lynch's exemplary work as Can Share coordinator to read their

letters to the jury, although the letters themselves were not to be

admitted in evidence and given to the jury. Lynch asserts that the

district court's refusal to honor the parties' stipulation

prevented her from demonstrating to the jury that defendants

failed to hire her for the Staff Assistant II position not because

she was unqualified, but for pretextual reasons.

The stipulation with respect to the letters was not, as

Lynch asserts, an agreement of the parties as to certain facts that

were not disputed. Nor was it an agreement concerning the

authenticity or admissibility of the letters themselves. Such

agreements are generally favored by trial courts because they

expedite trials. See 22 C. Wright & K. Graham, Federal Practice

and Procedure: Evidence 5194 (1978), at 195 ("Where the effect of

the stipulation is to eliminate the need for proof of a particular

point or debate over the admissibility of certain evidence,

enforcement of the stipulation can . . . be justified in terms of

judicial efficiency."). Rather, the parties proposed to dictate to

the trial court the procedure by which evidence would be presented

to the jury. The district court rejected the parties' stipulation

because, inter alia, it determined that to allow the witnesses to

read the content of the letters verbatim and, thus, effectively

admit their content for all purposes, but not permit the jury to

receive the letters and consider their contents during

deliberations other than by way of the jurors' memories or notes,

would cause undue confusion for the jury. Instead, the district

court ruled that Lynch could offer the letters for admission and

the court would admit or exclude them in accordance with the

Federal Rules of Evidence. The court then heard and rejected

arguments advanced by Lynch as to why the letters should be

admitted in evidence. These rulings as to specific letters'

admissibility were not appealed.

While the district judge could certainly have allowed the

letters to be read as provided in the stipulation, the manner in

which evidence is received at trial is a matter within the sound

discretion of the trial court. See United States v. Passos-

Paternina, 918 F.2d 979, 986 (1st Cir. 1990) (district court has

discretion "in matters relating to the orderly conduct of the trial

and the mode of presenting evidence"). The district court believed

that to allow each author to read the letter verbatim, but then to

preclude the jury from reviewing the letters during their

deliberations, would needlessly confuse the jury. We are reluctant

to second-guess a determination of this nature, and cannot say that

the district court's decision to reject the parties' stipulated

procedure in favor of a letter-by-letter determination of

admissibility amounted to an abuse of discretion.

Lynch's substantial rights were, in any case, unaffected

by the court's ruling. The authors of the letters testified at

trial concerning such matters as Lynch's "phenomenal" networking

skills and their perception that Lynch did "exceptional" work at

Can Share. They conveyed what the letters would have conveyed,

their good opinion of Lynch's qualifications relative to the Staff

Assistant II position. It is difficult to see how rejection of the

stipulated procedure, even were it to have exceeded the court's

discretion, was other than harmless.

Next, Lynch asserts that the district court erred when it

precluded Michael Devlin, who had worked extensively with Lynch on

the Can Share program, from answering the following question: "In

the time that you worked in the Can Share program, who would you

say was responsible for the success and growth the program had?"

Lynch argues that this lay opinion testimony would have supported

her claim under the Massachusetts Whistleblower Statute that she

was qualified for the Staff Assistant II position and was denied

the position for pretextual reasons. The district court precluded

Devlin from rendering his opinion regarding who was responsible for

the growth and success of the Can Share program on the grounds that

(1) Devlin was not "competent" to render the opinion, and (2) Lynch

had failed to persuade the court that the opinion sought pertained

to an "appropriate" subject for opinion testimony by a lay witness.

Rule 701 of the Federal Rules of Evidence permits the

rendering of lay opinion testimony when such testimony is (a)

"rationally based upon the perception of the witness," and (b)

"helpful to a clear understanding of the witness' testimony or the

determination of a fact in issue."

Here Devlin's opinion would have cleared the first

hurdle, that the opinion was based on the personal perception of

the witness. See, e.g., United States v. Paiva, 892 F.2d 148, 156-

57 (1st Cir. 1989). Devlin was "competent," to use the district

court's term, to testify concerning the success and growth of Can

Share during the period in which he and Lynch worked together based

upon his personal observation of Lynch's work. We also conclude

that Devlin's opinion concerning the growth and success of Can

Share would have been "rationally" based upon his perception of

Lynch's work, in the sense that no irrational leaps of logic would

have been required in order for Devlin to render the rather

straightforward opinion Lynch sought to elicit.

Even though rationally based on the witness's personal

perception, lay opinion testimony will be excluded if it is not

"helpful" to the trier of fact. See Fed. R. Evid. 701. Lay

opinions are not helpful when the jury can readily draw the

necessary inferences and conclusions without the aid of the

opinion. See 7 J. Wigmore, Wigmore on Evidence 1917-18 (lay

opinions are superfluous when the jury, unaided by opinion, can

draw the necessary inferences as effectively as the witness).

Accordingly, the Rule vests considerable discretion in the trial

court in determining whether the jury will be aided by lay opinion

testimony. See 4 J. Weinstein, Weinstein's Federal Evidence

701[05] (2d ed. 1998).

Here, as Lynch herself points out, Devlin testified at

some length concerning his personal observation of Lynch's

excellent organizational skills, her proficiency at long-term

program planning, her "phenomenal" ability to recruit participants

from the business community, her "incredible" motivational skills,

and her ability to communicate clearly. Devlin testified that

Lynch's ability to recruit in the business community "brought in a

lot of people to take part in the campaign fully." Contrary to

Lynch's assertion that the jury could not determine "how effective

plaintiff was in her job" without Devlin's lay opinion, the jury,

unaided by Devlin's opinion, could readily have drawn the inference

from Devlin's detailed factual account of Lynch's exceptional work

at Can Share that Lynch was quite effective in her position and was

responsible for the success and growth of the Can Share program

during the time she and Devlin worked together. Compare United

States v. Jackman, 48 F.3d 1, 5-6 (1st Cir. 1995) (witness's

testimony identifying defendant from surveillance photographs

admitted since jury not in as good position as witness to determine

identity). Hence the district court may well have believed in

finding the opinion not to pertain to an appropriate subject for

lay opinion testimony that it would simply not be helpful. In

any event, even assuming error in refusing to admit the opinion,

the error would be harmless given the considerable body of

testimony that was admitted pointing in the same direction.

Finally, Lynch asserts that the district court erred in

excluding certain testimony by her expert witness, Ellen Bassuk,

M.D. Under the Massachusetts Whistleblower Statute, Lynch had to

demonstrate that she had an objectively reasonable basis for her

belief that the perceived staffing shortage at the ESC on January

12, 1994 created a risk to the public health and safety. See Mass.

G. L. ch. 149, 185. Dr. Bassuk testified that the circumstances

that existed on January 12, 1994, including the extreme cold and

the absence of the ESC staff, created a public health risk that

would be potentially life-threatening. Nevertheless, the jury

found that Lynch did not have a reasonable belief that the public

health or safety was in jeopardy when she made the telephone call.

See Lynch, 989 F. Supp. at 302-03.

Lynch asserts that the district court erred in excluding

testimony by Dr. Bassuk concerning the efficacy of the beeper

system used by Cronin and other ESC employees and the availability

of brochures that contained information concerning shelters and

other services for the homeless. Lynch contends that she offered

this testimony to rebut testimony by Cronin to the effect that the

homeless were not in danger on January 12, 1994 because the City

had a beeper system and brochures were available at the ESC that

listed various services for the homeless. The district court

excluded Dr. Bassuk's testimony because it was concerned that to

allow the parties to litigate the efficacy of the City's beeper

system and the content of its written brochures would inject an

irrelevant issue into the case whether the City should have done

more to protect the homeless and would potentially cause a

significant increase in the length of the trial.

The district court may have gone too far in asserting

that Lynch sought to inject an irrelevant issue into the case.

Lynch was seeking to counter Cronin's defense, presaged during her

testimony, that the availability of the beeper system and the

brochures rendered unreasonable Lynch's belief that the public

safety was endangered by the lack of staffing at the ESC. But

courts have latitude to keep trials on track and to limit the

exploration of secondary issues. As the Supreme Court has stated:

Within limits, the judge may control the scope

of rebuttal testimony, may refuse to allow

cumulative, repetitive, or irrelevant

testimony, and may control the scope of

examination of witnesses. If truth and

fairness are not to be sacrificed, the judge

must exert substantial control over the

proceedings.

Geders v. United States, 425 U.S. 80, 86-87 (1976). The district

court acted within the appropriate limits here.

The district court here did not entirely preclude Dr.

Bassuk from rendering her opinion. Dr. Bassuk testified:

Q: Let us assume that the director of the

city agency in question, regardless of its

name, had a beeper or a pager with her while

she was out of the agency office on the day in

question. would that affect the opinion that

you just rendered?

A: No, I don't think so. It would naturally

depend on the nature of the beeper system, on

such things as whether there were protocols

that insisted that if you had a beeper, you

were called, that you were supposed to respond

in a timely way, that there was some kind of

system set up for immediate and rapid

response.

At this point, the district court interrupted and, for the reasons

stated, struck that portion of Dr. Bassuk's testimony that came

after her answer "No, I don't think so." However, Dr. Bassuk had

already opined that the circumstances as described on January 12,

1994 created a potentially life-threatening risk, and she was

permitted to further state that her opinion would not be affected

by the assumption that a beeper system was available to Cronin and

members of her staff. The court only interrupted when it appeared

that the testimony and further questioning might lead to a mini-

trial on the issue of the City's beeper protocol. We find no abuse

of discretion.

We reach a similar conclusion with regard to the district

court's partial exclusion of Dr. Bassuk's testimony concerning the

availability at the ESC of brochures that listed various services

for the homeless, including soup kitchens and shelters. The

district court, again out of a concern that Lynch was attacking the

efficacy of the City's services generally, limited Dr. Bassuk to

opining only as to whether the listing of any private services in

the brochures would alter her opinion concerning the risk to public

health. Dr. Bassuk was permitted to respond that the availability

of such information would not change her opinion that the public

health was in jeopardy on January 12, 1994. The district court did

not abuse its discretion in limiting the scope of Dr. Bassuk's

testimony concerning brochures. Further, even if the court erred

in proceeding in this fashion, the remainder of Dr. Bassuk's

testimony rendered any such error harmless. Dr. Bassuk went on to

testify at some length that referral brochures were generally a

poor resource for the homeless for several reasons. She pointed to

studies that had demonstrated that many homeless persons are

illiterate, fail to follow through with referrals, and have

difficulty obtaining transportation to the services available.

Thus, Dr. Bassuk was effectively permitted to opine that the

listing of any services, whether public or private, would have been

an ineffective means of mitigating the risk to the health and

safety of the homeless population caused by the under-staffing at

the ESC.

In sum, we conclude that the district court acted within

its discretion when it refused to honor the parties' purported

procedural stipulation. We reach the same conclusion with regard

to the district court's exclusion of Devlin's lay opinion and its

partial exclusion of Dr. Bassuk's testimony. Lynch was not

deprived of a fair trial on her state law whistleblower claim.

E. Reputational Damages

The jury awarded Lynch $12,000 for loss of reputation in

connection with her removal from the Hunger Commission. The

district court eliminated this award when it granted judgment as a

matter of law in favor of Cronin on the ground of qualified

immunity. We upheld this ruling, supra. Lynch asserts on appeal,

however, that even if her section 1983 claim is not reinstated, she

is entitled to the $12,000 in reputational damages under her state

law tort claim for intentional interference with advantageous

relations. We disagree.

In order to prevail on a claim of intentional

interference with advantageous business relations, a plaintiff must

demonstrate actual harm to an existing or prospective relationship

of economic benefit. See Ratner v. Noble, 35 Mass. App. Ct. 137,

138 (1993). Lynch has not met that burden here. Her removal from

the Hunger Commission, an honorary position, resulted in no

pecuniary loss, or at least none reflected in the record. Thus,

Lynch is not entitled to the jury's award of $12,000 in

reputational damages, either under her First Amendment claim or

under her intentional tort claim.

F. Phase II -- Punitive Damages

Lynch asserts that the trial court committed several

errors during Phase II of the trial, which was devoted solely to

the issue of whether punitive damages should be awarded. The jury

awarded $10,000 punitive damages in connection with its findings

that Cronin had violated Lynch's First Amendment rights. However,

we have concluded that the failure to re-hire Lynch for the 1994

Can Share program did not constitute a First Amendment violation.

Thus, there is no basis for an award of punitive damages and we

need not consider Lynch's claims of error with regard to Phase II

of the trial.

G. Cronin's Cross-Appeal

Cronin raises a single issue in her cross-appeal:

whether Lynch was entitled to the district court's award of $4,000

in emotional distress damages based upon her state law claim for

intentional interference with advantageous relations. Cronin

asserts that the award of emotional distress damages was improper

because Lynch failed to demonstrate, as required under

Massachusetts law, that she suffered any pecuniary harm from

Cronin's interference with her advantageous relations with the

City.

The jury awarded Lynch $4,000 for emotional distress

caused by Cronin's statement on January 13, 1994 that she must

"clear out her desk." In its original judgment, the district court

allocated the $4,000 in emotional distress damages to Lynch's First

Amendment claim. After it dismissed Lynch's First Amendment claim,

the district court in the amended judgment allocated the jury's

$4,000 emotional distress award to Lynch's intentional tort claim.

Cronin asserts that this allocation was error. We agree.

To prove her claim of intentional interference with

advantageous relations, Lynch had to demonstrate that (1) a

business relationship existed; (2) Cronin knew of such

relationship; (3) Cronin intentionally and improperly interfered

with that relationship; and (4) Lynch suffered a loss as a result

of that interference. See United Truck Leasing Corp. v. Geltman,

406 Mass. 811, 814-16 (1990).

The district court found that Cronin's interference with

Lynch's prospective relationship with the City occurred on January

13, 1994 when she told Lynch to "clear out her desk." See Lynch,

989 F. Supp. at 298 ("An interference occurred on the day that the

defendant ordered the plaintiff to clear out her desk."). But as

we have stated, supra, the record demonstrates that Cronin's

statement did not constitute a communicated decision at that time

not to re-hire Lynch for the 1994 Can Share drive. An adverse

employment action was made and communicated to Lynch several months

later, in June, 1994. By that time, Cronin had reorganized the ESC

and hired Markland for the Staff Assistant II position. The jury

found that the hiring of Markland in connection with the

reorganization of the ESC was not retaliatory and that Lynch was,

in any event, not qualified for the Staff Assistant II position.

As Cronin did not then intentionally and improperly interfere with

Lynch's relationship with the City, there is no liability under

Lynch's intentional tort claim.

Massachusetts case law is clear, moreover, that a

plaintiff cannot recover emotional distress damages in connection

with a claim for intentional interference with a prospective

business relationship unless she can first demonstrate actual

economic damages. See Ratner v. Noble, 35 Mass. App. Ct. 137, 138

(1993). The only actual damages Lynch claims to have suffered

arose from her failure to be hired as the 1994 Can Share

coordinator. But, as said, the decision not to hire Lynch in June,

1994 was reached for legitimate reasons, namely because Lynch was

not qualified for the job. As Lynch has failed to demonstrate that

she suffered any actual damages as a result of Cronin's statement

on January 13, 1994 that she must "clear out her desk," the award

of emotional distress damages was improper.

III. Conclusion

We reverse and vacate the district court's award of

$4,000 in emotional distress damages in connection with Lynch's

intentional tort claim. Otherwise, we affirm the judgment of the

district court in all respects. The parties shall bear their own

costs on appeal.