United States Court of Appeals

For the First Circuit

No. 03-1444

GERALD FABIANO,

Plaintiff, Appellant,

v.

MERITA A. HOPKINS; KEVIN J. JOYCE; CITY OF BOSTON,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

 Howard, Circuit Judge,

Campbell, Senior Circuit Judge,

and Stahl, Senior Circuit Judge.

Gerald Fabiano, pro se, for appellant.

Christine M. Roach, with whom Roach & Carpenter, P.C., was on

brief for appellees.

December 9, 2003
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STAHL, Senior Circuit Judge. Pro se plaintiff-appellant

Gerald Fabiano appeals from the district court's judgment in favor

of his former employer, the Corporation Counsel's office of the

defendant-appellee City of Boston. Fabiano asserts that he was

unlawfully terminated in retaliation for filing a lawsuit in state

court against the City of Boston Zoning Board of Appeal, which was

the Corporation Counsel's client. The district court awarded

summary judgment to the City and the individual defendantappellees, holding that as a matter of law, Fabiano's termination

did not violate the First Amendment. We affirm the judgment below,

albeit on different grounds than those set forth by the district

court.

I. Background

We present the facts in the light most favorable to Fabiano,

as the party opposing summary judgment. See Sparks v. Fidelity

Nat'l Title Ins. Co., 294 F.3d 259, 265 (1st Cir. 2002). In June

1994, Fabiano was appointed Assistant Corporation Counsel for the

City. He served as a senior litigation lawyer in the Government

Affairs Division and was an at-will employee. Defendant-appellee

Kevin J. Joyce, the Director of Government Affairs, was Fabiano's

immediate supervisor from December 1995 until his termination.

Defendant-appellee Merita A. Hopkins was the Corporation Counsel.

During late 1996 and early 1997, Hopkins received reports from

Joyce and another manager expressing concerns about Fabiano's case
1After investigation, defendants learned that Fabiano had not

become one of the record owners of the property until after the

original zoning decision had been made, just prior to the running

of the appeals period. 

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management skills, particularly with respect to his approach to

settlement. In June, 1997, these concerns were discussed at a

meeting attended by Fabiano and Hopkins.

In January, 1998, Fabiano informed Joyce that he had initiated

a pro se action appealing a decision of the City of Boston Zoning

Board of Appeal ("Zoning Board") to the Superior Court. The

Government Affairs Division represents the Zoning Board on appeals,

and Fabiano had personally worked on two such cases during his

tenure. 

In Fabiano's pro se appeal, he challenged the renewal of a

zoning variance for a restaurant located one hundred feet from real

estate in which he had an ownership interest.1 Fabiano contended

that a variance had never been initially granted, and that the

renewal, issued in error, permitted a sit-down restaurant to

provide take-out services, thus diminishing the limited parking

supply on his residential street. Plaintiff's mother, who owned a

different abutting property, joined him in the action. Like

Fabiano, she represented herself. 

When Fabiano notified Joyce of the litigation, Joyce

immediately responded that his action in taking the appeal

presented a conflict of interest and strongly advised Fabiano to
2Fabiano's complaint in the Zoning Board action indicates that

he and his mother signed the document separately, each pro se.

Fabiano did not list his Board of Bar Overseers number on his

signature line.

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retain separate counsel. In the district court, Joyce testified

that Fabiano told him that he was representing himself and family

members, while Fabiano claimed he told Joyce he was only

representing himself.2 According to Fabiano, Joyce angrily told

Fabiano that he had to pick which side he was on and said that the

litigation violated Mass. Gen. L. ch. 268A, the state ethics law.

Notwithstanding the strong reaction of Joyce, Fabiano did not

seek permission for self-representation or procure outside counsel.

He believed that under the conflict of interest policy governing

situations in which an employee acts on his own behalf, his action

was permissible. 

The matter was reported to Hopkins, who was told (apparently

incorrectly) that Fabiano was representing his family as well as

himself in the action. After consulting with outside counsel,

Hopkins came to believe that Fabiano's actions were "potentially in

violation of state law, as well as state ethical rules governing

the practice of attorneys."

For a few months after Fabiano filed the Zoning Board action,

Joyce regularly asked Fabiano about his trial schedule, something

that he had never done before. On May 22, 1998, shortly after

Fabiano reported that he had no trials scheduled, Hopkins
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terminated his employment. She did this while holding a copy of

the Zoning Board complaint in her hand, telling Fabiano that she

lacked confidence in his judgment and was dismayed that he had not

consulted state statutes, the Board of Bar Overseers, the State

Ethics Commission, or any manager before entering his appearance

against the City. 

Hopkins contended that she did not fire Fabiano for suing the

City, but rather for his failure to follow city policy with respect

to written disclosure and prior written approval of his lawsuit, as

well as "his inability or unwillingness to acknowledge the serious

professional, ethical and practical problems created by his

lawsuit." She stated that the Zoning Board lawsuit was merely one

more example of poor judgment with respect to his caseload. 

After investigation, the City acknowledged that the variance

decision had resulted from "inadvertent clerical error." Joyce

answered and handled the matter on behalf of the City. On February

18, 1999, the zoning appeal was resolved in favor of Fabiano and

his mother by agreed judgment. 

In December 2001, Fabiano filed a complaint in the

Massachusetts Superior Court asserting First Amendment claims

against each defendant pursuant to 42 U.S.C. § 1983 as well as

common law state claims. Defendants removed the case to federal

court.

After a hearing, the district court allowed the defendants'
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motion for summary judgment with respect to the First Amendment

claims, and remanded the state claims to state court. Fabiano v.

Hopkins, 245 F. Supp.2d 305, 312 (D. Mass. 2003). The district

court held that Fabiano's litigation pertained to a matter of

public concern "in only a most limited sense." Id. at 311 (quoting

Connick v. Myers, 461 U.S. 138, 154 (1983)). Even if Fabiano's

conduct were protected by the First Amendment, the court continued,

the constitutional concern was outweighed by "the valid workplace

concern of the Corporation Counsel that Fabiano should have

consulted with his supervisor before initiating this litigation,

and sought to minimize any actual conflicts or appearance of

conflicts." Id. at 312. This appeal followed.

II. Discussion

Summary judgment is proper if the pleadings, depositions,

answers to interrogatories, and admissions on file show that there

is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law. Rosenberg v.

City of Everett, 328 F.3d 12, 17 (1st Cir. 2003) (citing Fed. R.

Civ. P. 56(c) (2003)). We review the district court's award of

summary judgment de novo, construing the record in the light most

favorable to Fabiano and resolving all reasonable inferences in his

favor. Id. 

We may affirm the district court's entry of summary judgment

on any ground revealed by the record. Houlton Citizens' Coalition
3In 1995, another Law Department attorney filed a pro se

zoning appeal, but she apparently suffered no adverse employment

consequences. Moreover, this attorney did not work for the

Government Affairs Division and was not supervised by Hopkins, the

policymaker at issue. Hence, this incident, taken together with

Fabiano's termination, lacks sufficient commonality to form a

pattern or practice.

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v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999). Although

the district court ruled only on the merits of Fabiano's First

Amendment claims, we take a somewhat different approach, holding

that neither the City of Boston nor the individual defendants may

be liable pursuant to 42 U.S.C. § 1983. 

A. Municipal liability pursuant to 42 U.S.C. § 1983

In an action pursuant to 42 U.S.C. § 1983, there can be no

municipal liability under a respondeat superior theory. Monell v.

Dept. of Soc. Servs., 436 U.S. 658, 690-95 (1978). Rather, to

establish liability against the City, Fabiano must prove

deprivation of a constitutional right by means of "the execution of

the government's policy or custom." City of Canton v. Harris, 489

U.S. 378, 385 (1989); see also Monell, 436 U.S. at 690-94.

Hopkins is the relevant policymaker for the purposes of our

§ 1983 analysis, as the decision to terminate Fabiano's employment

ultimately resided with her. Fabiano does not point to any

relevant City "policy" beyond the mere fact that Hopkins decided to

fire him. Nor does he assert that the City has made a well-settled

practice of punishing attorneys who have taken legal action against

it or otherwise exercised their First Amendment rights.3 
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Absent evidence of an unconstitutional municipal policy, a

single incident of misconduct cannot provide the basis for

municipal liability under § 1983. Oklahoma City v. Tuttle, 471

U.S. 808, 823-24 (1985). Such a result would be the equivalent of

imposing respondeat superior liability upon the municipality. Id.

Fabiano's termination stands alone as a unique incident of alleged

misconduct and does not, as a matter of law, suffice to ground

§ 1983 liability against the City. 

B. Individual liability and qualified immunity

The individual defendants, Hopkins and Joyce, assert an

affirmative defense of qualified immunity. Qualified immunity is

intended to shield public officials "from civil damages liability

as long as their actions could reasonably have been thought

consistent with the rights they are alleged to have violated."

Anderson v. Creighton, 483 U.S. 635, 638 (1987). "Where the

defendant seeks qualified immunity, a ruling on that issue should

be made early in the proceedings so that the costs and expenses of

trial are avoided where the defense is dispositive." Saucier v.

Katz, 533 U.S. 194, 200 (2001).

In assessing this defense, we consider a sequence of

questions: (1) whether the facts as alleged make out a

constitutional violation; (2) whether that right was clearly

established; and (3) whether a similarly situated reasonable

official would have understood that her conduct violated clearly
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established law. Savard v. Rhode Island, 338 F.3d 23, 27 (1st Cir.

2003). We are required to take these questions in this order, as

the development of the law of qualified immunity is best served by

the judicial exposition of the first two inquiries. Saucier, 533

U.S. at 201; see also Dirrane v. Town of Brookline, 315 F.3d 65, 69

(1st Cir. 2002).

1. First Amendment violation

Accordingly, we first consider whether Fabiano's allegations

set forth a First Amendment violation. As an initial matter, every

citizen has the right "to petition the Government for a redress of

grievances." U.S. Const. amend. I. The right of access to the

courts is an established aspect of this right. Bill Johnson's

Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983).

In Mullin v. Town of Fairhaven, 284 F.3d 31, 37-38 (1st Cir.

2002), we recently described the three elements a public employee

must show to prevail on a First Amendment claim against his

employer:

First, we must determine whether the speech at issue

involves "matters of public concern." Connick v. Myers,

461 U.S. 138, 147-48 (1983). If it does not, then its

First Amendment value is low, and a "federal court is not

the appropriate forum in which to review the wisdom" of

internal decisions arising therefrom. Id. at 147.

Second, if the speech does pertain to matters of public

concern, the court must, under the Supreme Court's

decision in [Pickering v. Bd. of Educ., 391 U.S. 563

(1968)], balance the strength of plaintiffs' and the

public's First Amendment interests against "the strength

of the countervailing governmental interest in promoting
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efficient performance of the public service the

government agency or entity must provide through" its

public officials . . .

(internal citations omitted). Third, Fabiano must show that his

protected speech was a substantial or motivating factor in the

City's decision to fire him. See id. at 38; Lewis v. City of

Boston, 321 F.3d 207, 217 (1st Cir. 2003). 

a. Matter of public concern

In the first step of this analysis, whether Fabiano's lawsuit

addressed a matter of public concern presents a very close

question. We examine the entire record to assess the content,

form, and context of his speech. See Connick, 461 U.S. at 147-48.

"To presume that all matters which transpire within a government

office are of public concern would mean that virtually every remark

-- and certainly every criticism directed at a public official –-

would plant the seed of a constitutional case." Id. at 149. 

In O'Connor v. Steeves, 994 F.2d 905, 913 (1st Cir. 1993), we

noted that the specific factual circumstances of a case govern the

extent to which we delve into a public employee's personal motives

behind his speech. A case in which an employee expresses himself

on a subject that is "clearly a legitimate matter of inherent

concern to the electorate" may not require us to inquire further

into his motives. Id. at 913-14.

On the other hand, public-employee speech on a topic

which would not necessarily qualify, on the basis of its
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content alone, as a matter of inherent public concern

(e.g., internal working conditions, affecting only the

speaker and co-workers), may require a more complete

Connick analysis . . . with a view to whether the

community has in fact manifested a legitimate concern in

the internal workings of the particular agency or

department of government, and, if so, whether the "form"

of the employee's expression suggests a subjective intent

to contribute to any such public discourse.

Id. at 914.

Fabiano contends that because his lawsuit involves zoning, it

is inherently a matter of public concern under O'Connor. We agree

that zoning relates to the public interest in a very broad sense.

See McElderry v. Planning Bd. of Nantucket, 431 Mass. 722, 726, 729

N.E.2d 1090, 1093 (2000) (stating that purpose of zoning law is to

"regulate the use of land to ensure the safety, convenience, and

welfare of the inhabitants of municipalities"); Carstensen v.

Zoning Bd. of Appeals, 11 Mass. App. Ct. 348, 356, 416 N.E.2d 522,

527 (1981) (noting that "the main purpose of zoning is to stabilize

the use of property and to protect an area from deleterious uses .

. ."). 

To use so broad a standard, however, would sweep nearly every

public act under First Amendment protection. The specific nature

of Fabiano's legal action -- whether a variance was correctly

issued for a take-out restaurant on a residential street -- does

not constitute the type of issue of inherent public concern that

would truncate our analysis under O'Connor. His complaint cannot

be said to engage the public interest on a large scale; it is more
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akin in scope to a public employee speaking out on a workplace

concern. See O'Connor, 994 F.2d at 914; compare with Mullin, 284

F.3d at 915 (holding that employee's whistleblowing concerning

official misconduct by selectmen obviated the need for a threshold

analysis of his dominant motive for speaking out); see also

Brasslett v. Cota, 761 F.2d 827, 844 n.14 (1st Cir. 1985)

(affording no apparent consideration to public employee's motive

where fire chief's public commentary on fire protection plainly

qualified as a matter of inherent public concern). 

Accordingly, it is appropriate to inquire into Fabiano's

motives for his Zoning Board lawsuit. We examine the extent to

which Fabiano intended his lawsuit to "contribute to any 'public

discourse,' or if it simply reflected personal or internal . . .

concerns." Mullin, 284 F.3d at 38 (quoting O'Connor, 994 F.2d at

914). We note that Fabiano's "speech" differs in form from the

more conventional expression at issue in the applicable case law,

which involves written or spoken criticisms or complaints about

workplace issues. See, e.g., Connick, 461 U.S. at 147-48; Mullin,

284 F.3d at 39; Alinovi v. Worcester Sch. Comm., 777 F.2d 776, 786-

87 (1st Cir. 1985) (concluding that teacher who posted letters from

school administration in an attempt to bring about a resolution of

her disciplinary problem was motivated by a purely personal issue

and did not implicate matter of public concern). Accordingly, we

construe Fabiano's intent in the fact-specific context of his
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litigation. 

There is no doubt that Fabiano's lawsuit was motivated in

large part by self-interest. As the owner of property abutting the

restaurant granted the erroneous variance, he was directly affected

by the renewed variance and the concomitant possibility of

increased traffic. His complaint to the Zoning Board plainly

sought to redress these matters. Indeed, Fabiano would not have

had standing to bring suit had he lacked a personal interest and

particularized harm. See Mass. Gen. Laws ch. 40A, § 16; Green v.

Bd. of Appeals, 404 Mass. 571, 572, 536 N.E.2d 485, 585 (1989).

Nonetheless, we think that Fabiano's Zoning Board lawsuit had

sufficient public dimension to ground a First Amendment claim. The

record supports a conclusion that Fabiano's purpose in filing the

lawsuit, in addition to vindicating his property rights, was to

restore the integrity of the zoning process and remedy parking

congestion. Fabiano and his mother had attempted, before and/or

during their litigation, to point out the breakdown in the variance

process that led to the improper renewal. These efforts ultimately

were successful, resulting in an agreed judgment before the Zoning

Board. Had Fabiano and his mother not acted in a timely matter to

challenge the renewal, the Zoning Board's error would have become

permanent. See Mass. Gen. Laws ch. 40A, § 17 (stating that action

must be brought within twenty days after the decision has been

filed). 
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Although this is a very close case, we think the form and

context of Fabiano's expression indicates a subjective intent to

contribute to public discourse. See O'Connor, 994 F.2d at 914.

Hence, we conclude that he has, by a narrow margin, made a

sufficient showing that his lawsuit addressed a matter of public

concern. 

b. Pickering balancing

The next step of our analysis of Fabiano's First Amendment

right is to balance the strength of the relevant constitutional

interests against the countervailing governmental interest in

promoting efficient performance of the City's public service. See

Pickering, 391 U.S. at 568. Albeit not an exact science, Pickering

balancing "is necessary in order to accommodate the dual role of

the public employer as a provider of public services and as a

government entity operating under the constraints of the First

Amendment." Rankin v. McPherson, 483 U.S. 378, 384 (1987). This

balancing test is "particularized"; if the plaintiff's

constitutional claim is relatively weak, as here, the government

need show less to counter it. See Connick, 461 U.S. at 150, 152.

The City contends that Fabiano's conduct undermined the

efficient internal workings of the department. Fabiano was a

senior attorney responsible for counseling and representing agency

clients, including the Zoning Board. In that position, he had an

obligation to recognize the sensitive nature of his work. He
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failed to seek advice or advance permission from his superiors to

litigate against one of his clients and rebuffed Joyce's urging to

seek outside counsel. Rather, he proceeded with his lawsuit,

apparently heedless to the possibility of embarrassment to the

Corporation Counsel's office or an appearance of impropriety.

Fabiano's filing of the Zoning Board appeal, as well as his

intransigence vis-a-vis his superiors following its disclosure,

could be reasonably construed as disruptive.

Although the government's concerns are valid, they fall short

of outweighing Fabiano's First Amendment interests in pursuing his

zoning case. First, there is little evidence in the record that

Fabiano's lawsuit disrupted the day-to-day functioning of his

workplace. After Fabiano brought the matter to his supervisor's

attention, defendants continued to employ Fabiano for several

months while he litigated other matters. Until his termination,

Fabiano was unaware of any response to his litigation on the part

of the City other than the filing of an answer to the complaint.

We note also that ultimately there was no adversity between

Fabiano's position and the City's position concerning the variance

at issue. The City eventually admitted that the renewal was issued

improperly and entered an agreed judgment. In that respect,

Fabiano's successful attempt to redress the errors committed by the

Zoning Board apparently did not conflict with the City's mission to

deliver government services. Indeed, Fabiano arguably helped to
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vindicate the public's interest in a fair and just review process.

Cf. O'Connor, 994 F.2d at 916 (stating that a "strong public

interest in disclosures supplemented [plaintiff's] relatively

slight personal interest in speaking out . . . weighting the

Pickering scale in favor of First Amendment protection against

retaliation for [plaintiff's] speech").

Moreover, Fabiano's conduct arguably does not seem to have

violated the City's internal policy as expressed in its publication

Introduction to Conflict of Interest Law for City of Boston

Employees. That manual provides, in relevant part:

Acting on Behalf of Others 

While you are a City employee, you may not act as

agent or representative for anyone other than the City in

connection with any matter involving the City. . . .

 . . . . .

Special case: Family Members. If you are an

appointed employee, you are generally allowed to act as

an agent for: members of your immediate family (yourself,

your spouse, your parents, your siblings, your children,

your spouse's parents, your spouse's siblings, and your

spouses's children), or any person for whom you serve as

guardian, executor, administrator, trustee or personal

fiduciary, provided that: 

a. the matter is not within your official jurisdiction as

a City employee; 

b. you have never personally participated in the matter

while employed by the City; and 

c. you get prior, written permission from your appointing

authority (see the definition of "appointing authority"

at the end of this brochure).

 . . . . .

Special case: Acting on your own behalf. You are

always allowed to represent yourself, and to state

personal points of view. However, you should always make

it clear that you are acting on your own behalf, and not
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acting in any official capacity. You may even represent

yourself before the City agency you work for (but

remember that you may not take any type of official

action on a matter that affects you).

(Emphasis in original). 

The section titled "Acting on your own behalf" appears to be

relevant here. Although Joyce and Hopkins maintain they were told

that Fabiano was representing his mother, Fabiano testified below

that he told Joyce that he was only representing himself, and we

must construe any disputes in his favor. See Rosenberg, 328 F.3d

at 17. In fact, Fabiano's complaint in the Zoning Board action

indicates that he and his mother signed the document separately,

each pro se. 

Applying the latter section of the manual, it does not seem

that Fabiano committed a violation. Nothing in the litigation

indicated that Fabiano was acting in an official capacity as

counsel to the City when he filed suit, or that he took any

official action on a matter affecting him.

We do not mean to suggest that Fabiano's conduct was proper or

created no conflict of interest with his employer. Indeed,

Fabiano's conduct appears to implicate the Massachusetts Rules of

Professional Conduct, see Supreme Judicial Court Rule 3:07, at

least to the extent that it may have created an appearance of

impropriety. Nor can we condone the bull-headed manner in which

Fabiano defied the stated and obvious concerns of his superiors.

He proceeded with his pro se filing with no apparent regard for
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their concerns. Nonetheless, reluctantly we conclude that under

the specific and unusual facts of this case, the City's interest in

an efficient workplace did not trump Fabiano's First Amendment

right to pursue his zoning suit.

c. Causation

In the third and final step in establishing a First Amendment

violation, Fabiano must show that his protected speech was a

substantial or motivating factor in the City's decision to fire

him. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429

U.S. 274, 287 (1977); Mullin, 284 F.3d at 38. This requirement is

satisfied. Hopkins was holding a copy of the Zoning Board

complaint in her hand when she fired Fabiano, and in her affidavit

below she cited the lawsuit as one of several reasons underlying

the termination (although she took pains to emphasize that the

method by which Fabiano sued the City, not the suit itself, was the

cause). It may well be that a factfinder would determine that

Fabiano's deficiencies in professional judgment, not the lawsuit

itself, was the primary cause of the firing. But, taking all

inferences in favor of Fabiano, as we are bound to do, we conclude

that he has adduced sufficient evidence of causation for purposes

of our review.

2. "Clearly established" right

Having concluded that Fabiano's allegations arguably suffice

to state a First Amendment claim, we proceed to the second step of
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the qualified immunity analysis and consider whether Fabiano's

First Amendment right was "clearly established." Saucier, 533 U.S.

at 201-02. The purpose of this requirement is "to ensure that

before they are subjected to suit, officers are on notice that

their conduct is unlawful." Id. at 206; see also Hope v. Pelzer,

536 U.S. 730, 739 (2002). 

The nature of Fabiano's First Amendment claim makes it

extremely difficult for him to prove that this right was clearly

established at the time his employment was terminated. "Because

Pickering's constitutional rule turns upon a fact-intensive

balancing test, it can rarely be considered 'clearly established'"

for purposes of qualified immunity. O'Connor, 994 F.2d at 917 n.11

(quoting Bartlett v. Fisher, 972 F.2d 911, 916-17 (8th Cir.

1992)(internal quotation marks omitted)); see also Frazier v.

Bailey, 957 F.2d 920, 931 (1st Cir. 1992) ("if the existence of a

right or the degree of protection it warrants in a particular

context is subject to a balancing test, the right can rarely be

considered 'clearly established,' at least in the absence of

closely corresponding factual or legal precedent").

The facts of this case do not present the sort of unusual

circumstances that would support the finding of a clearly

established right notwithstanding Pickering. As we noted supra,

there is a very close question as to whether Fabiano's allegations

made out a constitutional claim. Fabiano's supervisors had, on at
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least one formal occasion, stated a basis for distrusting his

judgment, see Dirrane, 315 F.3d at 71, and were reasonably

concerned about the potential conflict of interest (and the

appearance of such conflict) that his Zoning Board lawsuit

entailed. We cannot say that they knew or should have known that

firing Fabiano under these circumstances was unlawful.

Accordingly, we conclude that Joyce and Hopkins are entitled to

qualified immunity on Fabiano's First Amendment claims.

We affirm the judgment of the district court as to all

defendant-appellees.