USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit

____________________

No.

96-2165

KENNETH SILVA,

Plaintiff, Appellant,

v.

LAWRENCE D. WORDEN, INDIVIDUALLY AND AS COMMISSIONER FOR THE

CITY OF NEW BEDFORD DEPARTMENT OF PUBLIC WORKS, ROSEMARY
TIERNEY, AS MAYOR, AND THE CITY OF NEW BEDFORD,

Defendants, Appellees.
____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert Collings, U.S. Magistrate Judge]

_____________________
____________________

Before

Torruella, Chief Judge,

___________
Lynch, Circuit Judge,
_____________

and Stearns,* District Judge.

______________

____________________

Philip N. Beauregard, with whom Law Offices of Beauregard

____________________
_________________________
& Burke was on brief for the appellant.
_______
Kevin J. Finnerty, Assistant
__________________
Peter J. Thomas, Assistant
________________

City Solicitor, with

City Solicitor was

whom

on brief for

appellees.

____________________

November 20, 1997

____________________

____________________

Of

designation.

the

District

of

Massachusetts,

sitting

by

LYNCH, Circuit Judge.

LYNCH, Circuit Judge.
_____________

directed verdict

First

on his

Kenneth Silva appeals from a

claims alleging

and Fourteenth Amendments.

are that Silva

violations of

The First Amendment claims

was subjected to a

ban on parking cars

city employee parking lot when the cars carry

rack signs,

that the

him, and that

ban was

the

political roof

selectively enforced

the termination of his city

in a

against

employment was in

retaliation for his support of his wife's political candidacy

for city

mayor

office when

supported.

she ran against

The Fourteenth

Silva's liberty or

Amendment

when he was

hearing

employment was

his

whom the

claim is

property interests under the

Clause were violated

before

a candidate

not given a

terminated

that

Due Process

name-clearing

for pushing

another city employee.

At the

moved for

motion

close of

plaintiff's evidence,

a directed verdict.

under advisement

defendants

The district court

and

then,

at

evidence, directed a verdict against the

the

close

took the

of

all

plaintiff as to the

roof rack ban, selective enforcement, and due process claims.

The

court let the retaliatory firing claim against defendant

Worden go to

the jury, which held in favor of the defendant.

The retaliatory firing claim against

and

Mayor

verdict,

were

but

not

dismissed.

the

retaliatory firing claim.

Silva

the City of New Bedford

appeals

the

jury

finding

against

We

affirm.

In so doing, we

him

directed

on

his

hold

that the

roof rack ban was not a

established as

policy-making

termination did

to be

custom or practice so well

attributable to

officials.

We

not occur under

to a hearing.

I
I

further

the City

hold

through its

that

Silva's

circumstances entitling him

Silva was hired

Department of

by the City as an

Public Works

on May

employee in the

24, 1993.

Silva

was a

probationary employee; as such he could not obtain full civil

service status until six months after the date of his hiring.

In

June

1993,

Ramone Silva,

intention to run

this vacant seat.

Tierney,

Worden,

Fortes,

Superintendent

announced her

for Ward 4.

five candidates who sought election to

The leading candidate in this campaign was

political

the Mayor

the DPW

wife,

for election as City Councilor

Mrs. Silva was one of

Joseph

Silva's

of

New

ally

Bedford.

Commissioner,

and manager

of

of

defendant

Rosemary

Defendant

Lawrence

and

Jose

Pontes,

the

city

yard,

the

were

DPW

also

supporters of Mayor Tierney.

Because she was a write-in candidate and not on the

ballot, Mrs.

to

Silva relied heavily on signs

the attention

of voters.

Such

to bring herself

a write-in

campaign is

unusual in New Bedford, so Mrs. Silva's efforts received much

publicity.

and

Silva vigorously

worked on her

behalf.

supported his wife's candidacy

Pictures

of Silva

and his wife

were widely distributed in

campaign literature and published

in area newspapers.

Silva worked

for

the DPW

without incident

until

September 23, 1993, when Silva went to the supply area to get

work

gloves and

Lobo.

wife

was

ignored by

Lobo, a supporter

to Silva,

Fortes.

telling him

When Silva later approached

physical altercation

clerk, Timothy

of Mayor Tierney, knew that Silva's

was campaigning against

any gloves

the supply

refused to give

"was not

important."

Lobo to discuss the

incident, a

resulted

he

Lobo

in which

Silva pushed

Lobo.

While no one was injured and the incident was treated by both

parties

Pontes.

as "no

big deal,"

Lobo

reported the

incident to

Pontes

called Silva

Silva for the incident.

car from

yard is

had a

a large area,

roof rack

Councilor.

office and

chastised

Pontes also told Silva to remove his

the city yard,

Department, where DPW

to his

where Silva

had parked.

primarily containing the

employees commonly park.

advertising his wife's

Pontes told

Silva that

The city

DPW Highway

Silva's car

candidacy for

city policy

City

prohibited

employees from parking cars with political roof rack signs in

the city yard.

had

parked

There was evidence that

their

personal

political roof

rack

public office.

Some DPW

cars

in

signs advocating

other DPW employees

the

city

other candidates

employees also had bumper

yard

with

for

stickers

on

their cars.

recently

But

no other

been instructed

person,

to move

his

except Silva,

or her

car.

has

Silva

relocated his car and never parked in the city yard again.

Pontes, as

DPW

heirachy

below

DPW Superintendent, was

Worden.

Commissioner

Superintendent Pontes, ran the agency.

day-to-day

operations of the

DPW.

second in

the

Worden,

not

Pontes supervised the

While

Worden had formal

authority over the city yard, Pontes administered the yard on

a daily basis,

a responsibility

traditionally exercised

by

the DPW Supervisor.

On

warning

September 24, 1993, Pontes gave Silva a written

indicating

recommending

that

that Silva's

refused to

sign

warning to

the union

Silva

probation

the warning.

personnel file.

given a

practice

for

be

Pontes

sent a

Worden,

employees,

Lobo"

and

Silva

copy of

a copy

Pontes instructed

hearing before

probationary

Tim

extended.

steward and placed

Although

would be

"pushed

the

in Silva's

Silva that

as was

Silva

he

customary

was

never

contacted by Worden for this purpose.

On

October 7, 1993, Silva received a letter signed

by Worden

to

discharging him because of the

the warning.

discharge

Worden

and declined

Silva might defend

to

himself.

never spoke

grant Silva

events giving rise

to

Silva about

a hearing

Silva was unable

the

at which

to find other

work

for two

years.

On election

day,

1993, Mrs.

Silva

defeated Fortes for the Ward 4 seat.

In April 1994, Silva sued the City, Mayor Tierney,

and

Worden under 42 U.S.C.

1983 and Mass. Gen. Laws ch. 12

11H,I (the state civil rights acts), claiming that the roof

rack

ban

violated

the

selectively enforced against

First

Amendment,

him, that he was

that

it

was

discharged in

retaliation for his support of his wife's candidacy, and that

the City's

failure to

prior to his

provide him

a name-clearing

discharge violated his liberty

hearing

interests under

the Due Process Clause of the Fourteenth Amendment.

At trial, Commissioner Worden testified that Pontes

had informed him

by the

there was a longstanding

DPW Superintendents

city "policy" set

prohibiting political

roof rack

signs

in the city yard,

he had

no knowledge of

had filed suit

although Worden also testified that

any such practice until

against the City.

Pontes

policy had been first

instituted by a DPW

the

continued

1970's

and

was

including Pontes.

by

testified that the

Superintendent in

later

Pontes and Lobo both

after Silva

Superintendents,

testified that they

remembered past incidents of people being asked to move their

cars on account of political roof racks.

At

the close of Silva's case, defendants moved for

a directed verdict.

and instructed

The

court reserved ruling on the motion

the defendants

to proceed

with their

case,

"understanding that I'll

be judging the evidence as

point, without considering

rather

than keep

completed

motion for

the evidence that you

the jury waiting."

presenting

their

After

evidence,

directed verdict, which

court let the retaliatory firing

they

of this

introduce,

the defendants

renewed

the court granted.

their

The

claim go to the jury, which

found in favor of Worden, the sole remaining defendant.

II
II

In

reviewing a directed verdict under Fed. R. Civ.

P. 50(a), "we take the

party

and

ask

inevitably to

de

evidence most favorable to the losing

novo

decide in

whether

reasonable

favor of the

victor."

jury

had

Abraham v.
__________

Nagle, 116 F.3d 11, 13 (1st Cir. 1997).

_____

We consider

all

evidence

including evidence introduced

notwithstanding the

offered

by the defendants.

defendants' motion for

at the end of Silva's case and the court's

would rule,

although at the

the plaintiff's

initial motion

evidence.

during

We do this

directed verdict

statement that it

close of all evidence,

The court's

at the end of Silva's

trial,

only on

reservation on

the

case acted as a denial

of the motion, upon which the

standing on its motion or

defendants chose

court

must now

either

proceeding with its evidence.

to proceed

view all

City had the choice of

with their

of

evidence, and

the evidence

Gillentine v. McKeand, 426 F.3d 717, 722-23

__________
_______

presented.

The

this

See
___

(1st Cir. 1970);

A & N. Club v. Great American Ins. Co., 404 F.2d 100, 103-104
___________
_______________________

(6th Cir. 1968) (citing O'Malley v. Cover, 221 F.2d 156, 158________
_____

59 (8th Cir. 1955)).

verdict was proper

on

all

evidence

Moreover, the court held that directed

based both on Silva's

presented

during

evidence alone and

the

trial,

thereby

effectively making two separate rulings.

In

reviewing

directed verdict,

the

appellate

court "may not consider the credibility of witnesses, resolve

conflicts

in

evidence."

1987).

testimony,

or

evaluate

the

Wagenmann v. Adams, 829 F.2d 196,

___________________

"Nevertheless, the

evidence to which

weight

of

the

200 (1st Cir.

the nonmovant

points must comprise more than fragmentary tendrils:

mere

scintilla of evidence

verdict,

burden of

is not enough to

especially on

a claim

proof belongs

to the

House, Inc. v. K Mart Corp.,

____________________________

or

forestall a directed

issue as

to which

objecting party."

892 F.2d 1076, 1088

the

Fashion
_______

(1st Cir.

1989) (citations omitted).

We repeat the procedural context.

rejected the retaliatory firing claim.

potential liability of the City

claims and the due process claim.

A jury heard and

At issue here is the

on the other First Amendment

With this in mind, we face

the central questions in this appeal: (1) whether Pontes is a

"policymaker" under Monell v. Department of Social Services,

______
______________________________

436 U.S. 658 (1978) and its progeny, (2) whether the City had

a "policy" or "custom" of banning political

roof rack signs,

and

(3) whether

under the Due

the method

Silva was

Process clause of the

of his termination.

the negative.

A.

deprived

Municipal Liability
___________________

of a

liberty interest

Fourteenth Amendment by

We answer each

question in

In

Monell,
______

the

Supreme

Court

held

municipality may not be held vicariously liable

for

the torts

of an

employee solely

employer-employee relationship with

691.

Instead,

municipality

on the

under

1983

basis of

its

the tortfeasor.

a plaintiff seeking to impose

under

that

Id.
___

at

liability on a

1983 must identify a municipal "policy"

or a "custom" that caused

the plaintiff's injury.

See Board
___ _____

of County Comm'rs
of Bryan County v. Brown, 117 S.Ct. 1382,
___________________________________
_____

1388 (1997);

Pembauer v.
________

(1986); Monell,
______

436 U.S. at

"custom" must also

deprivation

of

Cincinnati, 475
__________

694.

The disputed

be the cause and moving

constitutional

U.S. 469,

rights.

479-81

"policy" or

force behind the

See Bryan County

___ _____________

Comm'rs,
_______

117

S.Ct. at

1388.

Because

neither

policy nor

custom is shown here, we do not reach the causation issue.

pursuant to

municipality may be

a "policy

held liable for

by at least

two methods:1

acts taken

when the

____________________

1.

Justice Souter,

in

his dissenting

opinion in

County Comm'rs, identifies three alternatives:

______________
appropriate

office

promulgates

statement of

policy

and the

implementation

of the

policy; (2)

(1) where the

generally

subsequent

act is

where no

Bryan
_____

rule

applicable
simply

an

has been

announced but federal law has been violated by the act of the
policymaker itself; (3)

where the policymaker has

10

failed to

deprivation

resulted (1)

"from the

decisions

constituted

legislative body", or (2) from the decisions "of

those officials whose acts may fairly be said

the

municipality."

liability

attaches only

Id.
___

where

In

such

cases,

of its

duly

to be those of

"[m]unicipal

the decisionmaker

possesses

final authority to establish municipal policy with respect to

_______________

the

action ordered."

added).

Pembauer, 475
________

U.S. at

481 (emphasis

Liability

caused plaintiff's

may also be premised on a "custom" which

injury.

In

particular, a

municipality

might be held liable when the plaintiff is injured by "an act

performed pursuant

approved by

practice

to a 'custom' that has

an appropriate decisionmaker [when] the relevant

is so

widespread as

Bryan County Comm'rs,

_____________________

explained

1989), one

not been formally

to

117 S.Ct.

in Bordanaro v.
_________

have the

at

1388.

McLeod, 871
______

method of showing

force of

law."

As this

court

F.2d 1151

custom is to

(1st Cir.

demonstrate that

the custom or practice is so "wellsettled and widespread that

the policymaking officials of the municipality can be said to

have either

actual or constructive

nothing to end the practice."

knowledge of it

Id. at 1156.
___

yet did

____________________

act affirmatively at all,

so long as the need to control the

agents of government is so obvious, and the inadequacy of the

existing

practice

existing

right,

so

likely

that the

to

result

policymaker

can

"deliberatively

indifferent".

S.Ct. at 1395.

None of this trilogy can be

in

violation

of

said to

be

be

Bryan County Comm'rs,

_____________________

117

said to be true

here.

11

The

evidence

presented

in

this

case

does

not

demonstrate

under

the existence

1983.

of either

a policy

First, Pontes, the individual

or a

custom

who told Silva

he could not park in the city yard, is clearly not the "final

authority" in

specifically

the city yard.

provides

works under the

that

The City Code of

"[t]he

commissioner of

direction of the mayor and

City

Code

19-143;

Independent School Dist., 491

_________________________

particular official

see
also
__________

U.S. 701,

public

the city council

shall . . . [h]ave the charge of the city yard . .

Bedford

New Bedford

Jett
____

. ."

v.

Dallas
______

737 ("[W]hether

has 'final policymaking

New

authority' is a

question of state law." (quoting St. Louis v. Praprotnik, 485

_________
__________

U.S. 112,

123 (1988))).

Thus Worden, as

DPW Commissioner,

was Pontes's superior in matters concerning the city yard and

ultimately

responsible for the manner

run.

That Worden acknowledged

head

guy" at

demonstrate

the

that

yard is

Worden

authority regarding the

in which the yard was

at trial that Pontes was "the

insufficient,

delegated

without more,

final

yard to Pontes.

This

to

decisionmaking

is especially

true in light of Worden's assertions at trial that Pontes, as

DPW Superintendent,

was "directly beneath my

position," and

that "I am the department head."

We agree with the district

court's assessment that

Pontes's discretion to run the yard does not constitute final

decisionmaking authority which

might trigger liability under

12

1983 as

interpreted by Bryan County Comm'rs

____________________

and Pembauer.
________

Pontes's testimony that an unidentified DPW Superintendent in

the

1970's first came

suffice.

Such

up with

a decision

was

the roof

not made

rack ban

does not

by New

Bedford's

legislative body; nor are superintendents, who are second-in-

command figures, the final authority to establish DPW policy.

Second, Silva has not met

the burden of showing

"custom"

under Bordanaro.
_________

The

roof

rack ban

was not

so

"wellsettled and widespread" as to

have force of law, nor is

there

the

sufficient

officials could

evidence

be said to

knowledge of the practice.

57.

At

Pontes

the close

could only

twenty years

that

City's

have had actual

when any

or constructive

See Bordanaro, 871 F.2d at 1156___ _________

of evidence, witnesses

remember

policymaking

a few

roof rack

such as Lobo

instances over

policy had been

and

the last

enforced.

More significantly, Commissioner Worden testified that he did

not

even know

of

several months after

the existence

of a

Silva had been

roof rack

ban until

fired and, indeed,

until after Silva had filed suit against the City.

not

Moreover,

there is no evidence that Mayor Tierney or other high ranking

city officials, or prior policymakers, were even aware of the

practice, much

less that they did nothing to

end it.

We do

not suggest that, and need not reach the issue of whether,

flat ban

on political

parking lots is

roof racks on

unconstitutional.

13

cars in

Even if

city employee

Silva's "custom"

claim

is

recast

as

involving

custom

of

selective

enforcement of such a ban depending on which candidate's sign

is displayed,

claim still

a far

more potent

fails for

constitutional claim,

want of evidence

that it

the

involves a

custom.

Under

officials

plaintiff

Bordanaro,
_________

in

had constructive

must

show

official responsibilities

have known of them."

internal quotation

knowledge of

that

widespread or flagrant that

order

"the

to

show

the practice,

practices

have

in the proper exercise

the municipal

that

been

City

the

so

of their

policymakers should

Bordanaro, 871 F.2d at 1157 (citations,

_________

marks,

Bordanaro, the plaintiff

and

alterations

omitted).

In

had presented considerable evidence

_________

demonstrating a

of Everett

officers,

the

comprehensive failure by the

to train

and monitor the

of

widespread

defendant's policymaking

1159-61.

lower-level

practice

officials should

its police

of

managerial

which

have been

In contrast, the evidence

at best suggests a practice,

some

actions of

and the court found that the evidence demonstrated

existence

See Id. at
___ ___

defendant City

the

aware.

in this case

sporadic at most, of which only

employees were

aware.

This

evidence is insufficient to show that the City's policymaking

officials had constructive notice of the practice.

B.

Due process considerations

__________________________

14

Silva

under the Due

claims he was deprived of a liberty interest

Process clause of the

the termination

of his

and

Fourteenth Amendment by

employment in

damaged his

that the

ability

termination

stigmatized

him

to

obtain other

employment.

Silva further argues that the City

violated his

right to

due process by

refusing to grant him

a hearing at

which he might clear his name.

The

Supreme Court has held that termination of at-

will employment, even

might be

characterized

itself to

when accompanied

by statements

as defamatory,

is

implicate a constitutionally

property interest.

n. 13 (1976);

See Bishop
___ ______

which

insufficient

by

protected liberty or

v. Wood, 426 U.S. 341, 348-49

____

Board of Regents v. Roth,

_________________
____

408 U.S. 564,

572

(1972). Despite the "drastic effect of the 'stigma' which may

result

from defamation

contexts,

by the

government in

reputation alone,

apart

variety of

from

some more

tangible interests such as employment, is [n]either 'liberty'

[n]or

'property'

by

itself

sufficient

to

invoke

the

procedural

protection of the

Davis, 424
_____

U.S. 693, 701

injury

must

person's

law.

be

Due Process Clause."

(1976).

accompanied

by

Rather,

Paul v.
____

the reputational

change

in

the injured

status or rights under substantive state or federal

See Id. at 710-12.

___ ___

We interpreted

Jeffrey, 643
_______

F.2d

these requirements

870 (1st

Cir. 1981),

15

in Beitzell
________

stating that

v.

"the

Fourteenth

where

Amendment procedurally

protects reputation

only

(1) government action threatens it, (2) with unusually

serious harm, (3)

(or some

as evidenced by

other right or

status) is affected."

(footnote and citations omitted).

terminating the

the fact that

employee must

employment

Id. at
___

878

Moreover, the municipality

also be

responsible for

the

dissemination of defamatory charges, in a formal setting (and

not

merely as

thereby

the

result

significantly

of

unauthorized

have interfered

ability to find future employment.

with

Id. at 879.
___

"leaks"),

and

the employee's

Massachusetts

may

have

interests

Such

law, under

slightly

broader

protected by

the State

conception

due process

liberty interests

have

formal charges where the

of

in this

been found

Constitution,

the

sort of

in the

liberty

case.

absence of

allegedly defamatory statements are

"likely to be disseminated either to members of the public or

to

prospective

employers."

Mental Retardation,
__________________

28 Mass.

See
___

App. Ct.

rev'd on other grounds, 409 Mass.

______________________

to

hearing

still

plaintiff's character

only

Smith
_____

v. Commissioner of
________________

628, 636-37

545 (1991).

attaches

is very serious.

when

As

But the right

the

of

damage

to

damage

to

the court stated

in Smith,
_____

The type

(1990),

reputation

and

character . . .
obloquy stems
demotion,

must be beyond
from

the loss

adverse

inefficiency

whatever
of a

evaluations

and

job,
(e.g.,

incompetence),

judgments of job performance.

of

Similarly,

16

demotions or transfers

with overtones of

disciplinary

action

and

adverse

effect

on

reputation

without

more,

give

rise to

interest.

consequent
do
a

not,

liberty

Id. at 635 (citations omitted); see also, Stetson v. Board of

___
________ _______
________

Selectmen,
_________

369 Mass.

deprivation

of

standing in

the

allegations of

755,

liberty

761

(1976)

based on

community, more

(To

serious

must

"constitute

damage

be shown

incompetence or inefficiency at

to one's

than

mere

a particular

job.")

The

evidence

There is no evidence that

that Silva

"pushed Tim

does

not meet

these

the basis for Silva's termination,

Lobo",

was ever

disseminated in

formal setting, as required under federal law.

the state standard

to

the public or to

letter

that

requirements.

is different, there was

prospective employees.

passed through

the

City

Even assuming

no dissemination

The termination

personnel department

remarked only

on

performance".

only

that

Silva "pushed

and

job

Tim

Lobo"

and

was not

publicly

Silva's union representative was aware of the

incident only

because Silva

when

interviewed

conduct

The employee warning written by Pontes stated

disseminated.

presence

Silva's "unsatisfactory

requested the

representative's

Pontes

issued

his

a witness

to the

incident

is insufficient

to

Finally, that

the incident

was

constitute dissemination.

warning.

That

Worden

discussed by other employees in the city yard is not evidence

17

that the incident

official or was

was published by Worden or

the basis for a formal

any other city

charge requiring due

process protections.

In

sum, we find

no evidence supporting

the claim

that Silva's termination was accompanied by defamatory formal

charges

or

officials.

statements

Nor do we

that

were

disseminated

by

city

find evidence that Silva's

subsequent

difficulty in

obtaining employment resulted from

the City's

discharge

Silva

of

for

unsatisfactory

conduct

and

job

performance.

Affirmed.
________

Costs to the defendants.

18