USCA1 Opinion
[Not For Publication]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 96-1848
JAMES A. MURRAY,
Plaintiff, Appellant,
v.
CITY OF BOSTON,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
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Before
Stahl and Lynch, Circuit Judges,
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and Woodlock,* District Judge.
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Mark S. Bourbeau, with whom Bourbeau and Bourbeau Bonilla &
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Tocchio were on brief, for appellant.
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Krisna M. Basu, Assistant Corporation Counsel, with whom Merita
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A. Hopkins, Corporation Counsel, was on brief, for appellee.
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December 17, 1996
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*Of the District of Massachusetts, sitting by designation.
PER CURIAM. Plaintiff James Murray appeals from
PER CURIAM
the entry of summary judgment on his employment-related claim
against the City of Boston. Murray, a former city employee,
brought claims against the City of Boston and Mayor Menino
under 42 U.S.C. 1983 and the Massachusetts Civil Rights
Act, Mass. Gen. L. ch. 12, 11I ("MCRA").
Murray alleges that, in 1992, he was terminated
from his position as Executive Assistant to the Commissioner
for Elderly Affairs, and that, in 1994, he was constructively
terminated from his subsequent position as a reporter for
Boston Seniority, a Commission for Elderly Affairs
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publication. Murray resigned from the latter position in
March 1994. Murray alleges that these employment actions
were punishment for expressing his political beliefs,
specifically for running for City Council in 1991 and for
Mayor in 1993 against the incumbent Mayor of Boston.
The district court granted summary judgment for the
defendants on all claims. Murray appeals only from the
judgment against him as to the City. Because Murray has not
adduced evidence sufficient to establish municipal liability
under 1983, we affirm the district court's grant of summary
judgment on that claim.1 As Murray has failed to show that
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1. Defendant also argues that Murray was not constructively
terminated and that, on the merits, he has not shown any
retaliation, much less for the expression of his political
views. We find it unnecessary to reach these arguments but
note that they appear well taken.
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he was subject to any threats, intimidation, or coercion, a
necessary element of claims under the MCRA, we also affirm
the grant of summary judgment on the state law claim.
In order to make out a claim of municipal liability
under 1983, Murray must show that the "execution of a
government's policy or custom, whether made by lawmakers or
by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury." Monell v. New York
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Dep't of Social Servs., 436 U.S. 658, 694 (1978). The theory
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of respondeat superior has no place in such claims. Id. at
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691. The "custom" on which liability is premised must be "so
permanent and well settled as to constitute a 'custom or
usage' with the force of law." Id. (quoting Adickes v. S.H.
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Kress Co., 398 U.S. 144, 167-68 (1970)(internal quotation
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marks omitted)). Murray does not contend that there is a
formal act or written policy which embodies the so-called
policy of retaliation. Nor does he contend that "anyone in
city government ever promulgated, or even articulated, such a
policy." City of St. Louis v. Praprotnik, 485 U.S. 112, 128
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(1988). Rather, he says that there is an informal policy or
custom of punishing city employees who express political
views different than those of the administration.
This court had said that there are "two
requirements for plaintiffs to meet in maintaining a 1983
action grounded upon an unconstitutional municipal custom":
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First, the custom or practice must be
attributable to the municipality. . .
.[I]t must be so well-settled and
widespread that the policymaking
officials of the municipality can be said
to have either actual or constructive
knowledge of it yet did nothing to end
the practice. Second, the custom must
have been the cause of and the moving
force behind the deprivation of
constitutional rights.
Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir.)(internal
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citations omitted), cert. denied, 493 U.S. 820 (1989).
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On the first point, Murray naturally relies on his
own employment history, which need not be detailed here, to
support his claim that there is a "well-settled and
widespread" custom. But evidence of a single occurrence is
usually insufficient, in and of itself, to establish a
municipal "custom and usage." St. Hilaire v. City of
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Laconia, 71 F.3d 20, 29 (1st Cir. 1995), cert. denied, 116 S.
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Ct. 2548 (1996); Mahan v. Plymouth County House of
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Corrections, 64 F.3d 14, 16-17 (1st Cir. 1995).
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Murray tries to buttress his claim that there is a
"custom" by pointing to three lawsuits filed in the United
States District Court for the District of Massachusetts and
one complaint filed before the Massachusetts Commission
Against Discrimination by present or former city employees.2
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2. We assume arguendo that the deposition transcripts
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proffered by Murray constitute admissible evidence. The
City argues that they are inadmissible hearsay. See Garside
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v. Osco Drug, Inc., 895 F.2d 46 (1st Cir. 1990).
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There is considerable doubt that three individual law suits
and one administrative complaint, even if each made
allegations comparable to Murray's, would suffice to show a
custom with the force of law. But these other disputes are
not comparable to the present action and do not involve
similar allegations of retaliation because of political
opposition to the incumbent administration. None of the
complaining individuals was, from the evidence presented, a
candidate for office. Even if Murray's complaint is read to
allege a broader theory of retaliation, encompassing more
than just retaliation against city employees who run for
office against incumbent city officials, the other fact
settings he proffers do not support his claim that there is
such a custom or policy.
These claims involve diverse city agencies, and
different city officials were responsible for the employment
actions at issue. One claimant makes allegations of denial
of due process in how his job was terminated, one alleges
termination following her criticism of her employing agency,
one alleges sexual harassment, and one alleges retaliation
for speaking out against sexual harassment. Murray makes no
attempt to link these various claims to a central
policymaker. These disparate facts do not fall easily under
even the broader category of a "custom" of punishing city
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employees for expression, in any form, of political views
contrary to those of the city administration.
Such a protean view as that offered by Murray would
render the "custom" requirement meaningless. In contrast
with the showing made here, this court has credited proof,
such as that offered in Bordanaro, of uncontroverted evidence
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from witnesses with first hand knowledge of a practice of
particular city officials who repeatedly engaged, over a
period of time, in exactly the same sort of unconstitutional
behavior. See Bordanaro, 871 F.2d at 1156. As we said in
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Mahan, plaintiff "has not brought his case near the Bordanaro
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umbrella, let alone under it." Mahan, 64 F.3d at 16.
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To establish a claim under the MCRA, Mass. Gen. L.
ch. 12, 11I, plaintiff must prove that the alleged
interference or attempted interference with rights was by
"threats, intimidation or coercion." Mass. Gen. L. ch. 12,
11H; Swanset Dev. Corp. v. City of Taunton, 668 N.E.2d 333,
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337 (Mass. 1996). The Supreme Judicial Court has said that:
"[t]hreat" in this context involves the
intentional exertion of pressure to make
another fearful or apprehensive of injury
or harm. "Intimidation" involves putting
in fear for the purpose of compelling or
deterring conduct. . . . [A] definition
of coercion [is] "the application to
another of such force, either, physical
or moral, as to constrain him to do
against his will something he would not
have done."
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Planned Parenthood League v. Blake, 631 N.E.2d 985, 990
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(Mass.), cert. denied, 115 S. Ct. 188 (1994) (internal
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citations omitted). Murray presents no evidence from which a
court could conclude that he was subjected to "threats,
intimidation, or coercion" of this nature. Therefore, his
state law claim fails on the merits as well.
The judgment of the district court granting summary
judgment to the defendant on all claims is affirmed.
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