Opinion
CIVIL ACTION NO. 00-11548-DPW
March 29, 2002
MEMORANDUM AND ORDER
Plaintiff Murphy Lewis ("Lewis") brings this action against his employer, the City of Boston ("City"), alleging racial discrimination and violation of First Amendment rights based on the elimination of his position as Music Director in the public schools, the failure to hire him for a new position, and, more generally, the treatment of him as an employee. The City moves for summary judgment on all counts.
I. Background
A. Murphy Lewis
Lewis, an African-American male, has been employed by the defendant in the Boston Public Schools since 1975. Lewis served as the school system's Music Director from 1995 through August 1999, in which he was responsible for the development and implementation of the district's music education policy. As Music Director, Lewis developed curriculum, designed teacher performance standards, provided teacher training and development, oversaw an inventory of musical instruments and supervised ninety-two music teachers throughout the public schools. Music Director was one of nine Senior Program Director positions in the Department of Curriculum and Instructional Practices ("the Department"), reporting directly to Department Director Sid Smith.
B. Lewis' Public Criticism of Defendant
Between 1997 and 1999, Lewis was an outspoken proponent of greater funding for music education in the Boston Public Schools. In 1997, the Boston Globe quoted Lewis criticizing the lack of resources devoted to music education in the Boston Public Schools and advocating the hiring of fifteen new music instructors to travel among the elementary and middle schools in the system.
In 1998, Lewis drafted a document outlining what he saw as the school system's failure to comply with its own Arts in Education policy and recommending the hiring of twenty new teachers to cover 82 elementary, middle, and high schools as part of an Itinerant Music Program. He estimated the cost of the new program at slightly over $1,000,000. Lewis shared this proposal with City Councillor Charles Yancey, which prompted a warning from Lewis' supervisor Sid Smith.
On February 1, 1999, a Boston Globe article reported that the Boston public schools maintained an inventory of more than 1200 musical instruments sitting largely unused in a warehouse. The article quoted Lewis extensively, including a discussion of his Itinerant Music Program proposal. Defendant states that its own Boston Public Schools' Press Office referred the reporter to Lewis. In March 1999, Lewis addressed a City Council hearing held at the Roosevelt School where he discussed the need to provide greater funding for music education.
C. Elimination of Music Directorship
In spring 1999, the City eliminated the position of Music Director along with thirty-one other positions throughout the Boston Public Schools, effective the start of the 1999-2000 school year. Lewis was notified that he would be laid off from his position by letter dated May 14, 1999. He is now serving as a music teacher at the Ellis Elementary School in Roxbury.
The responsibilities of the Music Director were redistributed among existing staff on a temporary basis. The reorganization plan slated many of the Music Director's responsibilities to be transferred to a new Roland Hayes Director. However, since the City has not yet filled that position, the Arts Director, Kathy Tossolini, a white woman, assumed most of the district-wide responsibilities previously held by the Music Director, including coordination with outside music partners, supervision of the district's music teachers, and oversight of the music instrument program. Other responsibilities such as coordination of the Martin Luther King Jr. celebration were assigned temporarily to other employees. Eventually, the City reports, some of the Music Director responsibilities will be assigned to the Roland Hayes Director.
D. Roland Hayes Directorship
The Roland Hayes Division of Music at the Madison Park High School is the sole magnet school for music in the Boston public school system. In June 1999, following the retirement of the long-time Roland Hayes director, the City posted a new position that combined the school specific responsibilities of the Roland Hayes director with some of the system-wide responsibilities previously held by the Music Director. The position required both administrative experience and a Master's degree.
Lewis began a Masters Degree program in 1995, and by 1999 had completed most of the requirements except for the thesis. He completed his Master's thesis in August 2000 and was awarded a Master's Degree on June 10, 2001.
Lewis applied for the new Roland Hayes position in 1999, but was not selected as one of the four finalists. Ultimately, none of the four finalists were hired in 1999, and a white teacher who was already at Roland Hayes, Greg Gozzola, was named to the position on an acting basis.
In May 2000, the position was re-posted with reduced system-wide administrative duties. Lewis again applied for the position. This time he was invited to be interviewed, but did not appear for the interview because he had not received the mailed invitation and was not notified by phone until the day of the interview. The interview was never rescheduled. An African-American finalist was selected and offered the position, but declined it. Greg Gozzola continues to serve as acting director and the position has been re-posted for a third time but has not yet been filled.
II. Racial Discrimination (Mass. Gen. Laws ch. 151B)
Lewis contends that the defendant discriminated against him based on his race in violation of Massachusetts General Laws Chapter 151B § 4. He alleges that several job-related actions — the elimination of the Music Director position, the failure to hire him for the Roland Hayes position, and various workplace incidents involving Art Director Kathy Tossolini — were motivated by racial animus. I will treat the three allegations separately because they implicate different legal tests and are distinct employment actions. Lacking direct evidence of discriminatory intent on the part of the defendant, Lewis seeks to show through indirect evidence that he was subject to racial discrimination.
Massachusetts law provides that: "It shall be an unlawful practice . . . [f]or an employer, by himself or his agent, because of race . . . to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification." Mass. Gen Laws Ch. 151B, § 4(1). In cases relying on indirect evidence of discrimination, Massachusetts law employs the familiar three stage order of proof outlined by the Supreme Court in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). See Abramian v. President Fellows of Harvard Coll., 432 Mass. 107, 116 (2000).
In the first stage, the plaintiff must establish a prima facie case of discrimination, the demands of which vary slightly depending on the form of discrimination alleged. Id. Proving the prima facie case establishes a presumption of discrimination.
In the second stage, the employer can rebut the presumption by articulating a lawful reason for its employment decision. Id. at 117. The burden on the defendant in the second stage is one of production that is easily met. See Weber v. Community Teamwork, Inc., 434 Mass. 761, 774-75 (2001).
In the third stage, the plaintiff must prove that the basis of the employer's decision was unlawful discrimination. Abramian, 432 Mass. at 117. The plaintiff may meet this burden by proving that one of the defendant's proffered reasons was not true or by presenting other evidence of discrimination. Id. Proof that the employer's given reason(s) was merely a "pretext" does not automatically result in a plaintiff's verdict; however, a showing of pretext is sufficient grounds for a jury to find that the employer engaged in unlawful discrimination. Id. at 117-118.
I turn now to examine each of the separate allegations of discrimination.
A. Termination
The elements of a prima facie case for a racially discriminatory termination claim vary depending on whether or not the plaintiff was dismissed as part of a reduction in force. Udo v. Tomes, 54 F.3d 9, 12 (1st Cir. 1995); LeBlanc v. Great American Insurance Co., 6 F.3d 836, 842 (1st Cir. 1993) (age discrimination). If there was no reduction in force, plaintiff must demonstrate that he: (1) was a member of the protected class, (2) performed his job at an acceptable level, (3) was terminated, and (4) his employer sought to fill the plaintiff's position by hiring another individual with qualifications similar to the plaintiff's. Abramian, 432 Mass. at 116. However, in a reduction in force situation, as here, the traditional articulation of the fourth prong is inappropriate because the employee's position is not filled by another employee. Instead, to satisfy the fourth prong in a reduction in force case the plaintiff must demonstrate that the employer did not treat race neutrally in making lay-offs or that people outside of the protected class were retained in the same position. Udo, 54 F.3d at 12; LeBlanc, 6 F.3d at 842.
"A work force reduction occurs when business considerations cause an employer to eliminate one or more positions within the company." LeBlanc v. Great American Insurance Co., 6 F.3d 836, 845 (1st Cir. 1993) (quoting Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir. 1990)). "An employer need not dismiss any particular number of employees, or terminate a set percentage of the work force, to institute a reduction in force." Id. The letter notifying Lewis of his lay off states that the Music Director position was eliminated due to insufficient funds and that the layoff was being conducted "in compliance with reduction in force procedures of the collective bargaining agreement." Accordingly, I consider plaintiff's layoff to be part of a reduction in force.
Lewis clearly fulfills the first three prongs of the prima facie case involving a reduction in force. It is undisputed that: 1) Lewis is African-American and therefore a member of the protected class under the Massachusetts Anti-Discrimination law; 2) Lewis' job performance was satisfactory and the decision to lay off Lewis was not predicated on job performance; and 3) Lewis was in fact laid off.
Lewis does not adduce facts showing that the reduction in force was carried out in a discriminatory fashion or that those outside the protected class were retained in the position. In spring 1999, thirty-two individuals including the plaintiff were laid off from their positions, including one principal, two cluster coordinators, three assistant headmasters, two assistant deans, seven assistant principals, and five program directors. Of those laid off, nine were white, eight were Hispanic, thirteen were black, and two were Asian. Lewis does not present any evidence suggesting that this reduction in force was statistically out of line with the overall racial makeup of the Boston Public Schools' workforce.
Since the position of Music Director was unique and was completely eliminated by the reorganization, there were no workers outside the protected class retained in the same position. While there were nine Senior Program Directors in the Department of Instruction and Curriculum, each was responsible for a distinctive subject area and therefore each possessed vastly different skills, qualifications and responsibilities. Accordingly, the other Senior Program Directors who were not laid off were not in the "same position" for purposes of the fourth prong of the prima facie case. See LeBlanc, 6 F.3d at 844 (Agency Operations Representative (AOR) in eastern Massachusetts not "same position" as AOR elsewhere in the region).
Lewis contends that the fourth prong can be satisfied by showing that his responsibilities were assumed by someone outside of the protected class, i.e. Kathy Tossolini, the Art Director. He cites Quercia v. Allmerica Fin., 84 F. Supp.2d 222, 225-26 (D.Mass. 2000), in which Judge Gorton found the fourth prong satisfied in an age discrimination case where a younger employee was hired to do the same work as the terminated employee under a different title. Quercia is not a typical reduction in force case. While Judge Gorton applied the reduction in force test, he found that the terminated employee had been replaced by a younger employee, which is enough to constitute a non-reduction case and to establish a prima facie case. Instead, he treated the replacement as someone retained in the same position, thereby satisfying the fourth prong of the reduction in force prima facie case. Regardless of which test is applied, Quercia is easily distinguishable because it involved a newly hired employee who assumed essentially all of the plaintiff's job responsibilities, whereas Lewis' responsibilities were reassigned among several existing employees, all of whom continued to perform their previous job duties.
"An employee is not eliminated as part of a workforce reduction when he or she is replaced after his or her discharge." LeBlanc v. Great American Insurance Co., 6 F.3d 836, 846 (1st Cir. 1993) (quoting Barnes v. GenCorp Inc., 896 F.2d 1457, 1457 (6th Cir. 1990)). Therefore, Quercia is perhaps more accurately considered a non-reduction in force case.
Lewis also cites Flebotte v. Dow Jones and Co., 51 F. Supp.2d 36, 40 (D.Mass. 1999), for the proposition that one is "replaced" when one's duties are assigned to non-protected employees who have never performed those functions before. In Flebotte, Judge Freedman found that the "sporadic and periodic redelegation of the plaintiff's duties to younger" employees constituted retaining younger employees in plaintiff's position sufficient to meet the fourth prong for a reduction in force case. Id. at 41.
I do not find the treatment of the fourth prong in Flebotte persuasive. The purpose of the prima facie case is to eliminate the most common nondiscriminatory reasons for termination thereby creating an inference of discrimination. Blare v. Husky Injection Molding Systems Boston, Inc., 419 Mass. 437, 441 (1995). The fourth prong in a non-reduction case rules out reduced workforce needs as an explanation for the employee's termination. However, in a reduction in force situation, a company generally reorganizes its workforce and reassigns responsibilities to reduce headcount and save money, which is why some evidence of discrimination in the manner of layoff is required. It is not sufficient to demonstrate that some of plaintiff's responsibilities of the employee were redistributed to existing non-protected personnel because that fact alone does not undermine the need for the reduction in force or suggest that it was accomplished by discrimination. To treat as retention of a non-protected employee the inevitable reassignment of some of plaintiff's responsibilities to an existing employee who continues to perform her previous duties would render meaningless the fourth requirement of the prima facie case.
Rather, I look to the First Circuit's discussion of replacement for purposes of a reduction in force in LeBlanc, 6 F.3d at 846, as analogous to what constitutes an employee retained in the same position as used in the fourth element. In LeBlanc, the First Circuit held that "[a] discharged employee is not replaced when another employee is assigned to perform the plaintiff's duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work. Rather, a person is replaced only when another employee is hired or reassigned to perform the plaintiff's duties." Id. (quoting Barnes, 896 F.2d at 1457).
Kathy Tossolini and the other employees who assumed portions of Lewis' job responsibilities were not specially hired or reassigned to new positions. Rather, they continued to perform their previous responsibilities and assumed some additional responsibilities previously performed by Lewis. This efficient reorganization of job duties which is the essence of a reduction in force does not transform the employees assuming Lewis' duties into retained Music Directors. Accordingly, I find that Lewis is unable to establish the prima facie case for racial discrimination in a reduction in force.
I observe that in this case, where the plaintiff's job position is unique, the standard methods of proving the fourth prong in a reduction in force case are particularly challenging. As an alternative, the plaintiff must have the opportunity to demonstrate that his position was selected for elimination over others due to discrimination rather than legitimate business reasons or that the reduction in force was a pretext. Either would be sufficient to raise an inference of discrimination.
Lewis argues that the reduction in force was pretextual because it did not result in overall budgetary savings. He claims that as part of the reorganization, the district had to employ an additional junior technician for the Roland Hayes position at the cost of $24,000-$32,000 per year. He also points to the City's failure to produce any evidence of budget savings or any documents showing the budgetary impact of the reorganization.
Lewis' objections amount to mere speculation that is insufficient to raise a genuine issue of pretext. The May 10, 1999 memo from Sid Smith to Lewis and Tossolini describes the overall reorganization of the citywide arts department, including the addition of support staff. The plan essentially reassigned the responsibilities previously performed by three managerial level employees — Music Director, Arts Director and the Roland Hayes director — among the latter two positions. The plan clearly purports to achieve a net savings through the elimination of the Music Director position notwithstanding the addition of a junior technician. Lewis introduces no evidence showing otherwise, nor does he demonstrate that the Department of Curriculum undertook its extensive restructuring efforts for any other purpose than those suggested.
Moreover, the City asserts a second motivation for eliminating the Music Director position — raising the status of the newly developed Roland Hayes director position. When first posted in 1999, this position had been redesigned after the retirement of the former director to include substantial system-wide responsibilities previously belonging to the Music Director. The reorganization plan, by allocating certain music responsibilities to the Roland Hayes director position, sought to centralize the department's music education responsibilities in a single person, to reduce duplication and promote efficiency. The mere fact that the position has not yet been filled is not enough to raise legitimate doubt as to the veracity of the City's stated motivation. For these reasons, I cannot find that this reduction in force was pretextual.
Finally, plaintiff fails to show that another position was more appropriate for elimination than Music Director. Defendant has introduced uncontroverted evidence establishing that the school district was under budgetary pressures, that the Department was required to reduce headcount, and that the Music Director position was chosen because it ranked lower in priority and its duties were more easily reassigned to other positions. Within the Department of Instruction and Curriculum, the Arts was the only subject area with two Senior Program Directors. Moreover, the Music Director had fewer overall responsibilities than the Arts Director, while the Arts Director, Ms. Tossolini, had more administrative experience than Lewis. It is logical that the Music Director position would be the first in the Department to be eliminated and that Tossolini would assume some of Lewis's responsibilities as part of the reorganization plan.
For the above reasons, I find that Lewis has failed to meet his prima facie burden for establishing racial discrimination. Moreover, he has failed to present evidence from which a jury could find that the reduction in force was pretextual or that the position of Music Director was chosen for termination for discriminatory reasons. Finally, were Lewis to have satisfied the prima facie case, there is absolutely no evidence in the record to support an ultimate finding of racial animus.
B. Failure to Hire
In order to establish a prima facie case based on a failure to hire, the plaintiff must demonstrate that he: (1) was a member of the protected class; (2) applied for the vacant position; (3) was not hired for the position, and (4) that the defendant continued to seek to hire individuals with qualifications similar to the plaintiff. Wynn Wynn v. Massachusetts Commission Against Discrimination, 431 Mass. 655, 666 n. 22 (2000). The fourth element eliminates lack of competence as a reason for failure to hire. Abramian, 432 Mass. at 116.
The City contends that Lewis fails to make out a prima facie case because he did not possess the qualifications required for the job and that the City continued to seek individuals with qualifications higher than those possessed by the plaintiff. Specifically, the City argues that Lewis lacked a Master's degree and experience managing and overseeing an arts facility. The four finalists all possessed at least a Master's degree and had direct experience in school-based management. Moreover, two of the three candidates actually interviewed by the Committee, which itself was made up of three African-Americans, one Hispanic, and one white member, were African-American.
Lewis concedes that he had not yet earned his Master's degree, but argues that it had also been a requirement of the Music Director position, but had not kept him from being hired and performing satisfactorily for four years. Additionally, Lewis had only the thesis remaining in order to receive his degree, a fact that Deputy Superintendent Knowles allegedly knew. Finally, Lewis notes that he was chosen as a semifinalist in the 2000 hiring despite the fact that he still didn't have the Master's degree and that the educational requirement had been raised.
Lewis can only present his claims of pretext to a jury, however, if he has first cleared the hurdle of establishing a prima facie case. "Failure to hire a job applicant due to a lack of qualifications is a common occurrence. Given the frequency of such an event, a plaintiff must establish [his] qualifications before proceeding to a jury. Where . . . a plaintiff cannot make such a showing, summary judgment is appropriate." Sahli v. Bull HN Info. Sys., Inc., 2001 WL 716848, *3 (Mass.Super.Ct. Mar. 21, 2001) (citing Abramian, 432 Mass. at 116).
The job description called for a Master's degree and strong management experience. It is undisputed that the several people who were interviewed for the position in 1999 possessed greater educational and management experience qualifications than did Lewis. Moreover, in 2000, when Lewis was selected to be interviewed, but failed to show up for the interview because he did not receive notification in advance, the person to whom the job was ultimately offered had an advanced degree, site-based management experience, and was African-American.
It is undisputed that the City has been seeking a candidate whose qualifications are greater than those of Lewis. The fact that no one has yet been hired as the permanent director, and that the position is temporarily being filled by a white teacher, does not lead to the inference that Lewis was not hired because of discrimination. To the contrary, the as yet unsuccessful search for other candidates with greater qualifications than Lewis — including offering the job to an African American candidate with superior qualifications who did not accept it — underscores the lack of discriminatory intent. Therefore, I find that Lewis has failed to present a prima facie case of discrimination with respect to his not being hired for the Roland Hayes Director position.
C. Disparate Treatment
Lewis alleges disparate treatment based on differences between the responsibility and resources given to him and to the Arts Director, Ms. Tossolini, who is white, and based on intrusions of his workspace while he served as Music Director. Ms. Tossolini was made responsible for implementation of the Arts Policy for all arts including music, which resulted in a greater role in budgeting resources. Lewis complains that he was excluded from committees and meetings, and that he did not receive the same financial resources given to Tossolini. Finally, Lewis alleges that there were regular violations of his workspace including hiding his phone, deleting messages, and putting student's artwork on his desk that he attributes to racial animus.
Although Lewis characterizes his complaints as disparate "conditions" of employment, standing alone these allegations are insufficient to establish a violation of Massachusetts anti-discrimination laws. Mass. Gen. Laws ch. 156D, § 4 prohibits "discriminat[ion] . . . in compensation or in terms, conditions or privileges of employment." Lewis does not contend that he faced discrimination with respect to hours of work, salary, work-related benefits, disciplinary action, or opportunity for advancement. I do not find that any of plaintiff's allegations rise to the level of terms, conditions or privileges of employment, and therefore do not constitute a harm cognizable under the anti-discrimination laws.
Plaintiff's allegations, including the alleged interference with his workspace, also do not rise to the level of, nor does he allege, a hostile work environment. "A hostile work environment is one that is pervaded by harassment or abuse, with the resulting intimidation, humiliation, and stigmatization, [and that] poses a formidable barrier to the full participation of an individual in the workplace.'" Cuddyer v. Stop and Shop Supermarket Co., 434 Mass. 521, 532 (2001) (quoting College-Town, Div. of Interco, Inc. v. Massachusetts Comm'n Against Discrimination, 400 Mass. 156, 162 (1987)).
Assuming arguendo that the disparate size of their budgets and relative levels of work responsibility assigned Lewis and Tossolini qualify as conditions of employment, he must still demonstrate an objective difference in treatment to support the allegation of discrimination. Lewis' contention that his conditions were inferior to Tossolini's assumes that they occupied equal positions and were entitled to precisely the same conditions. But while Lewis and Tossolini were both Senior Program Directors in the same Department, their roles were different. Moreover, due to differences in their subject areas, Tossolini was responsible for more teachers and more programs throughout the district. Lewis does not offer any evidence about the conditions facing the other seven program directors, nor does he refute defendant's claim that differences in Lewis' and Tossolini's position and responsibilities account for the variations in work conditions.
Finally, Lewis offers no evidence that any difference in the treatment or conditions faced by the two Program Directors derived from racial animus. Absent any direct or circumstantial evidence of racial animus, plaintiff's claim of disparate treatment fails to raise a genuine issue of material fact.
E. Conclusion
Considered separately and together the several theories of racial discrimination offered by Lewis are inadequately supported by the evidence to overcome defendant's motion for summary judgment.
IV. First Amendment Claim
Lewis also contends that the City violated his First Amendment rights by retaliating against him for speaking out on the importance of music education funding. Since Lewis brought this action solely against the City of Boston, rather than including individual defendants in their personal capacity, he faces several preliminary hurdles to bringing his First Amendment claims.
A. Cause of Action
1. Massachusetts Civil Rights Act
The Massachusetts Civil Rights Act (MCRA) provides for a personal right of action for "any person whose exercise or enjoyment of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, has been interfered with, or attempted to be interfered with. . . ." Mass. Gen. Laws ch. 12, § 11I. A civil action can be brought against any "person or persons, whether or not acting under color of law". Mass. Gen. Laws ch. 12, § 11H. However, a municipality is not a "person" covered by the MCRA. Howcraft v. City of Peabody, 51 Mass. App. Ct. 573, 591-92 (2001). Accordingly, Lewis cannot maintain his action for violation of his First Amendment rights against the City of Boston under the MCRA.
2. Section 1983
Whether Lewis' First Amendment claim can be brought under 42 U.S.C. § 1983 presents a more complicated issue. It is well established that a municipality does qualify as a "person" for purposes of § 1983. Monell v. New York Department of Social Services, 436 U.S. 658, 694 (1978). However, municipal liability is limited to those acts that "may fairly be said to represent official policy" and does not include traditional respondeat superior liability. Id.
In order for municipal liability to attach under § 1983, the city must be the "moving force" behind the injury alleged. Id. A municipal action qualifies as a policy if it is undertaken with "deliberate or conscious choice." Santiago v. Fenton, 891 F.2d 373, 381 (1st Cir. 1989) (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989)). "[M]unicipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives' by city policymakers." Harris, 489 U.S. at 389 (quoting Pembaur v. Cincinnati, 475 U.S. 469, 483-84 (1986)).
"The plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 404 (1997). This requirement is satisfied if "a particular municipal action itself violates federal law, or directs an employee to do so. . . ." Id. (emphasis in original).
I find that the decisions in question — to eliminate the Music Director position and not to hire Lewis as Roland Hayes director — are fairly characterized as municipal actions for which the city itself is liable. It was the City of Boston as employer, and not any particular individual, that eliminated the position of Music Director. The decision was made as part of the budgetary process and constituted a deliberate policy determination with respect to the structure of the music education program in the public schools. Moreover, the decision was made by the City's education policymakers — the superintendent, the deputy superintendent, and the head of the curriculum department — who together act as the municipality itself with respect to issues of education. Thus, the City was the moving force behind the decision and the degree of culpability possessed by these individual policymakers can be attributed to the City itself.
Finally, it is the City's decision to eliminate the position itself, and not some distantly attenuated consequence of that act, that is alleged to violate the First Amendment. Accordingly, I find that the decision to eliminate the Music Director position is an action taken by the City itself, and not by its particular employees. Therefore, I turn now to consider whether defendant's action violated the First Amendment.
B. The Retaliation Theory
Lewis contends that the City violated his First Amendment rights by eliminating the Music Director position in retaliation for his speaking out publicly against the City's insufficient funding of music education. The government, in its position as employer, cannot "condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." Connick v. Myers, 461 U.S. 138, 142 (1983).
A public employee alleging that his employer has violated his First Amendment rights by taking an adverse employment action against him must confront three basic considerations. Mullin v. Fairhaven, 2002 WL 398478, *4 (1st Cir. 2002). First, the plaintiff must show he was speaking "'as a citizen upon matters of public concern.'" O'Connor v. Steeves, 994 F.2d 905, 912 (1st Cir. 1983) (quoting Connick, 461 U.S. at 147-48). Issues of public concern are those "fairly considered as relating to any matter of political, social, or other concern to the community." Levinky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 132 (1st Cir. 1997).
Second, the court must balance the employee's First Amendment interests against the countervailing government interests. O'Connor, 994 F.2d at 912. At issue are "the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Bd. Of Education, 391 U.S. 563, 568 (1968). In order for the employee's conduct to merit protection, his First Amendment interests must be dominant. "The inquiry into the protected status of speech is one of law, not fact." Connick, 461 U.S. at 148 n. 7.
Finally, the employee must prove that the protected speech was a substantial or motivating factor in the adverse employment action taken against him. O'Connor, 994 F.2d at 913; Mt. Heathy City School District v. Doyle, 429 U.S. 274, 287 (1977). A plaintiff is not required to produce direct evidence of motivation; he can show causation through circumstantial evidence. Acosta-Orozco v. Rodriguez-de-Rivera, 132 F.3d 97, 101-02 (1st Cir. 1997). However, "the mere fact that an adverse action was taken after an employee exercises First Amendment rights is not enough by itself to establish a prima facie case." Id. at 101 (citing Board of County Comm'rs v. Umbehr, 518 U.S. 668, 685 (1996)).
If the plaintiff succeeds in showing these three elements, the employer has the opportunity to show that it would have taken the same action "even in the absence of the protected conduct." Id. (quoting Mt. Heathy, 429 U.S. at 287).
The adverse employment action requirement can be met by actions short of termination. Howcraft v. Peabody, 51 Mass. App. Ct.573, 584 n. 16 (citing Piver v. Pender County Bd. of Educ., 835 F.2d 1076, 1078 (4th Cir. 1987)). A significant reduction in job responsibilities qualifies as an adverse employment action. See id. Plaintiff's layoff as Music Director and his not being hired as Roland Hayes director both qualify as adverse employment actions.
Lewis cites at least four separate incidents of his protected speech that he alleges motivated defendant's adverse employment actions. On two occasions, in 1997 and 1999, Lewis' comments were prominently reported in local newspaper articles on the insufficiency of music education funding. In 1998, Lewis prepared a written document describing his Itinerant Music Program proposal and he shared it with members of the City Council individually. In March 1999, Lewis spoke at a City Council hearing at Roosevelt school. Lewis also makes reference to his involvement in initiating a parents music education advocacy organization.
Lewis' speech and conduct in all of these situations plainly related to issues of public concern. The role of music education in the public schools, the school district's budget priorities, and its commitment to arts education are issues of public policy and public debate. Their importance under the First Amendment is bolstered by the fact that the comments took place in the print media and as part of City Council meetings. Moreover, Lewis' comments were motivated by public concern about the best interest of the students, the school system, and the City of Boston rather than Lewis' personal interests as an employee of the City.
The City contends that as a rule public employees who are in policymaking positions do not receive protection against termination based on their First Amendment expression. Flynn v. Boston, 140 F.3d 42, 47 (1st Cir. 1998). However, Flynn held that public employees at the policymaking level are not protected against firing based on political disagreements with their supervisors. The First Circuit stated expressly that Flynn does not cover claims of retaliation, "public political criticisms" or "public expressions of political opposition." Id. at 46. Therefore, I must weigh the competing interests of the individual and the City to determine whether plaintiff's expressive activity was protected by the First Amendment. Pickering, 391 U.S. at 568.
Lewis has a strong First Amendment interest in his speech. The interest in expression is given greater weight when it is motivated by concern for the public interest, rather than self-interest. O'Connor, 994 F.2d at 915. Also, the First Amendment interest in expression grows according to its relevance to public affairs and self-government. Id. Lewis' expression of a competing viewpoint on a matter of public education lies at the heart of the First Amendment. See Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964) ("Speech concerning public affairs is more than self-expression; it is the essence of self-government.").
The City's interests in silencing Lewis' expression is much less compelling. In the context of public employee communication, courts have recognized a variety of legitimate interests the government may advance by regulating public employee's speech. These include discipline, harmony among co-workers, performance of public duties, and loyalty in close working relationships. Flynn, 140 F.3d at 47. While the City appeals to its interest in loyalty, there is no evidence that Lewis' advocacy for music education was perceived as disloyal or that it otherwise interfered with the school district's ability to carry out its mandate. Moreover, none of the other traditional government interests appear to be implicated by Lewis' First Amendment activity. Accordingly, I find that the Pickering balance of interests here favors protection of Lewis' expression.
Next, Lewis must be able to demonstrate that his First Amendment conduct was a substantial or motivating factor in the City's decision to eliminate the Music Director position. Lewis cites the temporal proximity between the Globe article in February 1999, the City Council meeting at Roosevelt school in March 1999, and the decision to eliminate the Music Director position sometime that spring, characterizing that time as one in which there was a high degree of public concern about the funding for music programs. He points to specific language in the Globe article that could be characterized as "critical." Lewis also notes a January 1999 memo he wrote to his supervisor, Sid Smith, regarding his involvement in starting a parent music advocacy organization, and Smith's deposition testimony recounting his suggestion that Lewis notify the superintendent about his involvement in the parent organization as evidence that his protected conduct led to the elimination of the position. Smith, for his part, recalls advising Lewis to be aware of protocol as he carried on conversations with City Councilor Yancey and helped start the advocacy organization. Finally, Lewis reports that Smith told him that the superintendent had been very upset about Lewis' circulation of his 1998 policy proposal.
Lewis' testimony regarding a conversation between Smith and the superintendent is arguably non-admissible hearsay. I will consider it here on an agency theory that could treat the Superintendent's statement to Smith and Smith's recounting of that statement to Lewis as not hearsay. See Fed.R.Evid. 801(d)(29)(D).
Lewis' second hand recounting of the superintendent's reaction to his policy proposal is the only evidence making the critical connection between Lewis' activity and the reaction of the administration. There is no evidence that Lewis' supervisors, including the superintendent, were anything but supportive of his comments to the media and his testimony before the City Council. Lewis' attempt to characterize his comments as "critical" does not establish that they were poorly received by defendant. Smith's advice to be cautious about protocol with respect to the superintendent sheds little light on the question of retaliation, particularly when it was Smith who actually recommended the elimination of the position. Smith testified that his employees, including Lewis, were free to talk to the media, and that the particular journalist writing the 1999 piece had been directed to Lewis by the school district's press office. Inferences linking Lewis' comments to the layoff evaporate when exposed to the overwhelming evidentiary demonstration that the Music Director position was eliminated as a result of budgetary cuts and an attempt to restructure the music education program.
I find that the plaintiff has not offered sufficient evidence to raise a genuine issue of material fact as to whether his protected speech was a motivating factor in the decision to eliminate the position. I conclude as a matter of law it was not. Consequently, I will grant summary judgment as to the First Amendment claims.
Conclusion
For the reasons set forth more fully above, I hereby GRANT the defendant's motion for summary judgment (#13) on all counts. In this connection, I have ALLOWED plaintiff's motion to amend his Rule 56.1 statement (#25) and DENIED defendant's motion to strike the 56.1 statement (#18).