About Us  |  About Cheetah®  |  Contact Us

Black firefighter’s race and retaliation claims against a town meeting member properly dismissed

By Kathleen Kapusta, J.D.

Section 1981, said the appeals court, “is not a full suit of armor,” rather “it is a bulletproof vest, designed specifically to safeguard contractual relationships.”

Finding that a Black firefighter’s Section 1981 race discrimination claim ran headlong into two insurmountable obstacles—he never alleged that the defendant, a town meeting member, was motivated by his race or that the member’s conduct impaired the firefighter’s employment relationship with the town—the First Circuit affirmed the dismissal of this claim. Nor was he able to convince the court to revive his Section 1983 retaliation claim as the “two unconnected events described in the SAC cannot plausibly be characterized as a campaign of harassment sufficient to chill the speech of a ‘reasonably hardy individual.’” Finally, because the firefighter failed to allege the existence of any conspiracy, his Section 1985 claim never got “out of the starting gate” (Alston v. Spiegel, February 19, 2021, Selya, B.).

Stupidest thing. About eight years after he started working for the town fire department, the firefighter complained that a lieutenant had used a racial slur in a voicemail he left on the firefighter’s phone. Rather than taking corrective action, the department told the lieutenant the firefighter had complained. In response, the lieutenant purportedly told the firefighter that reporting him “was the stupidest thing [he] could have ever done.”

Lawsuit. According to the firefighter, the board of selectmen, which was responsible for hiring, firing, and disciplining the firefighters, protected and rewarded the lieutenant and punished him in various ways, including by encouraging others to ostracize him, denying him promotions, and constantly harassing him. The firefighter sued in state court in 2013, three years after the voicemail incident, and the Boston Globe reported on the lawsuit, which the firefighter claimed, caused the town to increase its efforts to discredit him.

Letter. Around that same time, the town meeting member allegedly distributed a letter to the editor that was written by a retired Black fire lieutenant and that had been passed out the day before at a public meeting by a selectwoman. Although the letter attacked the firefighter’s credibility, the member cautioned against a rush to judgment. In early 2014, the firefighter was deemed unfit for duty and placed on unpaid leave.

Terminated. Later that year, the member allegedly told several people gathered in the board’s public meeting room that he had access to the firefighter’s personnel file. He also purportedly told a woman who was there to support the firefighter that she would not support him if she knew the real story contained in his personnel file and that other black firefighters did not support him either. He was ultimately terminated in February 2016.

Lower court proceedings. The firefighter subsequently sued, asserting claims against the town, board, certain members of the board, and the town meeting member. The district court twice dismissed his claim against the member and the firefighter appealed from the second dismissal.

Section 1981 race bias claim. Inferring on appeal that the firefighter’s employment contract was the relevant one for purposes of his Section 1981 claim, the court found no allegation that the member’s conduct was motivated by the firefighter’s race. Nor was there any allegation of racial animus on the member’s part. Equally fatal to firefighter’s claim was his failure to allege the member’s conduct impaired his employment relationship with the town. He did not allege the member was his employer, that he had any influence on the terms and conditions of his employment, or that he had any role in the enforcement of his contract.

To the contrary, he alleged that the employment relationship between the town and the firefighters was enforced through the board but did not allege the town meeting member was also a board member. Although he claimed the member had frequent contract with the board and acted as an unofficial surrogate for it, this was not enough to support a reasonable inference the member’s actions had a detrimental effect on the firefighter’s employment with the town. Accordingly, he failed to plead an actionable Section 1981 race discrimination claim.

Section 1981 retaliation claim. The firefighter’s inability to link the member to the board’s termination of his employment was also fatal to his Section 1981 retaliation claim. While he contended that the member’s comments to the woman who supported him at the meeting constituted retaliation “because they publicly broadcast the fact” the department had provided the member with access to derogatory information in his personnel file, these allegations did not connect the member with any injury to the firefighter’s contractual relationship with the town. Thus, the court affirmed the dismissal of this claim as well.

Section 1983 race bias claim. Turning to the firefighter’s Section 1983 claim, in which he alleged the member discriminated against him based on his race, the court pointed out that while he did not explicitly invoke any particular constitutional provision in relation to the member’s conduct, he did invoke the Equal Protection Clause with a respect to his parallel allegations concerning the town’s discriminatory conduct. Thus, the court assumed his allegations of race discrimination against the member also sought to vindicate his perceived rights under the Equal Protection Clause.

However, the complaint was “bereft of any factual allegations suggesting” the member distributed the letter and confronted the firefighter’s supporter as a result of the firefighter’s race. Nor did he identify anyone who was similarly situated to him and thus the district court did not err in dismissing this claim.

Section 1983 retaliation. Likewise, his allegations that the member retaliated against him for exercising his First Amendment rights in protesting the town’s racial discrimination fell short of stating a plausible claim under Section 1983, said the court, which found it “fanciful to think that [the member’s] distribution of a letter and his confrontation of two” of the firefighter’s supporters would deter a reasonable person from exercising his First Amendment rights against his employer. Pointing out that he never alleged how he came across the member’s email forwarding the letter to others, and which specifically warned against rushing to judgment, the court found nothing upon which to rest his claim that the letter, presented to people unrelated to him and that warned not to rush to judgment, communicated to him that his exercise of First Amendment rights “spelled trouble and should cease.”

Further, the firefighter’s allegations that over a year after the member sent the email, he berated the woman who supported him and falsely claimed that two Black firefighters did not support him failed to establish how an event that did not take place in his presence came to his attention or how that conduct intimidated him. While he argued that the member’s conduct was the type that would chill an employee’s speech, the member was not acting as his employer nor as a person alleged to be acting for the employer.

Distant critic. Nor was there any allegation of injurious information about the firefighter that might be revealed by the member or that the member ever threatened to reveal information from his personnel file. Noting that the firefighter’s allegations “essentially amount to a distant critic bad-mouthing or dissembling about an individual behind his back twice over the course of a year,” the court found the complaint lacked sufficient allegations of the degree of pressure on his views needed to state a plausible First Amendment claim.

Section 1985. Finally, as to his claim under Section 1985, which provides a remedy for acts of civil conspiracy in which two or more individuals conspire for the purpose of depriving another of rights or privileges accorded to them by law, he failed to allege the existence of any conspiracy. Though he contended an agreement could be inferred from the member’s and councilwoman’s 2013 distribution of the letter and from the member’s claimed knowledge of what was in his personnel file in 2014, these allegations, said the court, were manifestly insufficient.

Finding more enlightening what his complaint did not say, the court noted that it did not allege any contact or conversation between the member and the councilwoman, any agreement between them even minimally related to him, or even that the member received the letter from the councilwoman. Accordingly, the court also affirmed the dismissal of this claim.