Salmon v. Lang

United States Court of Appeals
For the First Circuit
No. 21-1104
JENNIFER SALMON,
Plaintiff, Appellant,
v.
ROGER LANG; LINDA HIRSCH; JOHN MOSES; JASON FREDETTE; KURT
MCPHEE; CHELMSFORD SCHOOL COMMITTEE; PATRICIA TOBIN; TOWN OF
CHELMSFORD,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Barron, Chief Judge,
Howard, Circuit Judge,
and Singal,* District Judge.
Joseph L. Sulman, with whom The Law Office of Joseph L.
Sulman, Esq. was on brief, for appellant.
Douglas I. Louison, with whom Alexandra M. Gill and Louison,
Costello, Condon & Pfaff were on brief, for appellee.
December 16, 2022
* Of the District of Maine, sitting by designation.
HOWARD, Circuit Judge. Jennifer Salmon -- a public
school teacher and former president of her local teachers' union
-- brought suit against several public school officials, her town,
and the local school committee, alleging First Amendment
retaliation and state-law claims arising from various negative
reactions to her union advocacy efforts between 2016 and 2018.
The district court entered summary judgment for all defendants.
Salmon now appeals the district court's summary judgment ruling
and two other rulings from the pleading and discovery stages. We
affirm.
I. BACKGROUND
Salmon has been a public school teacher in Chelmsford,
Massachusetts since 2002. In May 2016, she became president of
the Chelmsford Federation of Teachers ("CFT"), a local chapter of
the American Federation of Teachers ("AFT"). During her tenure as
CFT president, Salmon advocated on behalf of the union regarding
classroom-temperature problems in many of the town's school
buildings (e.g., cold temperatures during the winter months). Her
advocacy involved an August 2016 meeting with defendant Roger Lang,
Chelmsford Superintendent, and email exchanges with certain school
principals. Specifically, Salmon identified these heating issues
in emails to defendant Jason Fredette, principal of Byam
Elementary, in October 2016, and to defendant Kurt McPhee,
principal of McCarthy Middle School, in March 2017.
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In September 2017, Salmon began teaching third grade at
Harrington Elementary after transferring from a different school.
The next month, at the request of colleagues, Salmon raised
concerns to the Harrington principal, defendant Patricia Tobin,
about working conditions at her new school. The plaints focused
on special-needs classrooms and included the need for "increased
staffing and improved [student] monitoring." On October 13, 2017,
Tobin had a phone call with Salmon about an unrelated matter, in
which Tobin "yelled" at Salmon and mentioned that the principal at
Salmon's previous school "had warned" Tobin about her.
Specifically, Tobin believed that Salmon had interfered with her
instructions regarding a school-day scheduling change by telling
another teacher that the teacher did not have to listen to Tobin.
Tobin later received an email from the CFT vice president about
her call with Salmon, which Tobin characterized as "scathing" and
found "shocking" and "unfounded." Tobin printed and taped this
email to a filing cabinet in her office, feeling that she "needed
some time to react to [it]."
In early November 2017, Carol LeRivee, a Harrington
first-grade teacher, asked Salmon for help with a special-needs
student in her classroom whose disruptive behavior presented
safety concerns. LeRivee explained that the child habitually
"bolted" out of the classroom and off the playground, which took
support-staff members off task and interfered with other students'
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classwork. LeRivee had brought these concerns to the
administration's attention during the previous month, but felt
their response was slow and inadequate. Several teachers,
including Salmon, tried to help LeRivee deal with the disruptive
child by spending time in LeRivee's classroom to assist with the
other children in the class.
On November 16, 2017, Salmon emailed Tobin about this
child's behavior and requested a meeting to discuss the attendant
concerns. The email copied two non-party administrators -- Amy
Reese, Chelmsford Director of Special Education, and Patricia
Doherty, Chelmsford Special Education Chairperson -- as well as
Rick Blanchet, an AFT field representative. In her email, Salmon
noted that "[a]fter reviewing the Major Incident Report Binder, it
appear[ed] there are a minimum of 23 major incident reports
completed for this student," and that the student's behavior posed
a "major safety concern" for the classroom.1 A few hours later,
1 The Major Incident Report Binder ("MIR Binder") was where
teachers filed discipline reports for individual students in the
teachers' dedicated folders. At the time of Salmon's email, the
MIR Binder was kept in the school's main office on top of a filing
cabinet. Under Massachusetts regulations, these discipline
reports constitute "student records." See 603 Mass. Code. Regs.
§ 23.02. As such, access to them was limited to certain
"authorized personnel," as defined in applicable regulations. See
id. §§ 23.02, 23.07. Salmon contends that the district court
improperly found that she was not authorized to view LeRivee's
student's file and that this was a material fact in dispute. For
the reasons discussed infra, Section II.A.2, we disagree, as the
relevant school policy and regulations indisputably prohibited her
access in this instance.
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Salmon emailed this group again, asking that a meeting be scheduled
for Wednesday, November 22 at 8:00 AM between her, Blanchet, and
the three school administrators. She added that if Tobin, Doherty,
and Reese were unavailable to meet or discuss, her "next step
[would be] to go to the [Chelmsford] School Committee with these
incident reports."
On November 20, 2017, Tobin met with Salmon in response
to her email. Tobin questioned why Salmon felt this was a "union
issue," explaining that "the process of working with a student"
typically is not, and asked Salmon other questions about her
request, i.e., with whom she wanted to meet, and "why and how" she
was "able to go into [LeRivee's] classroom to support [her]."
Later that day, Salmon again emailed Tobin, Reese, and Doherty,
reiterating her request for a meeting at 8:00 AM on November 22
and explaining why she believed that it was a union issue and that
she did "not need to ask permission" to enter LeRivee's classroom
on her own time. She reiterated that she was "acting as the Union
President" in her request to meet on this issue. Tobin responded
that same evening, writing that she would be "happy to attend any
meeting [Salmon] schedule[d]."
On November 21, Salmon again emailed the three
administrators to confirm the meeting schedule. Tobin responded
that she would not be available that day, which was the day before
Thanksgiving, due to "many classroom visits" on a shortened
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schedule. Reese also emailed Salmon back, explaining that "[t]his
is not a union matter" and that she would "not meet with [Salmon]
as union president to discuss this student-related matter." Salmon
responded to Reese, reiterating the union's concerns about teacher
and student safety, stating that "[Blanchet] will be here at 8am
tomorrow," and adding: "Your unreasonable unwillingness to have a
conversation about solutions is cowardly." Later that night,
Salmon emailed Superintendent Lang, asking him to "help . . .
direct[]" Tobin to meet with her and Blanchet.
On November 22, Salmon and Blanchet entered Tobin's
office to request a meeting.2 Tobin told them she did not have
time to discuss or schedule a meeting, and asked Blanchet to leave.3
She then left the office to attend to other matters. Blanchet and
Salmon, however, remained. Upon learning that fact, Tobin directed
her support staff to call Lang for assistance. Following phone
conversations between staff members at Harrington and Lang's
office, Lang eventually received a message that Blanchet was at
2 While certain details of this encounter are disputed, such
as the tenor of the interaction between Tobin and Blanchet, those
details are not material to Tobin's claims or the issues presented
on appeal.
3 In her opposition to the defendants' motion for summary
judgment, Salmon contended that there is no evidence that Tobin
asked Blanchet to leave. But this is refuted by Tobin's undisputed
deposition testimony that she "told" Blanchet that "he needed to
leave."
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Harrington and "was becoming . . . agitated and combative toward
[Tobin]." Lang then proceeded to Harrington to intervene.
On his way, Lang notified the Chelmsford Police
Department that there was an incident occurring at the school.
When Lang arrived, he spoke with Tobin and then with Blanchet, who
"put his hands on Lang incidental to the conversation." Lang then
asked one of the responding police officers to escort Blanchet
from the building. Lang returned to speak with Salmon and informed
her that he was sending her home for the day in order to de-
escalate the situation and investigate the day's events. He
assured her that she was not being punished. Salmon went upstairs
to her classroom to gather her things. Soon thereafter, Salmon
was escorted out of the back of the building by a plain-clothes
officer, at Lang's request. Lang had requested the escort because
Salmon was visibly upset and the students would soon be arriving.
Salmon complied and was driven home by a co-worker.
Later that day, Lang retained outside counsel, on behalf
of the Chelmsford School Committee, to investigate the events
surrounding the incident. He also placed Salmon on paid
administrative leave pending the investigation's outcome. In
addition, Lang sent an email to all Harrington parents and staff
about the incident and held a meeting with Tobin and Harrington
teachers to discuss the same. During the meeting, Lang stated
that he was "shocked and disappointed with the actions" of "some
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individuals" and that there was "a right way and a wrong way" to
bring issues to the administration's attention.4
The November 22 incident sparked public commentary and
debate among the residents of Chelmsford and some neighboring towns
over the weeks that followed. This involved discussion and posts
on social media -- including some from defendant John Moses, a
School Committee member -- and a "contentious and heated" School
Committee meeting held on December 5, which was attended by
supporters of both Salmon and the administration. Attendees in
support of Lang and Tobin included Fredette and McPhee.
On December 6, the School Committee's outside counsel
delivered a report to Lang detailing the findings of the
investigation (the "Investigation Report") and sent a letter to
Salmon summarizing the same. As detailed in the Investigation
Report, the investigation consisted of approximately 23 witness
interviews, including those with LeRivee, Salmon, and Tobin, as
well as a review of video footage from inside the school, police
reports, student incident reports, emails, and various School
Committee policies and training materials. Counsel ultimately
concluded that Salmon (i) was "insubordinate with regards to [her]
appearing for and demanding a meeting that had been previously
4 Tobin reiterated this sentiment that there was "right way
and a wrong way to raise concerns" during a meeting with Harrington
teachers in January 2018.
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denied by two supervisors," and (ii) had "violated District policy
with regards to student records confidentiality" by viewing
LeRivee's student's incident reports. Salmon was permitted to
return to work the same day.
On December 12, Lang issued Salmon a letter of reprimand
to be placed in her personnel file. Lang noted that he concurred
with the Investigation Report's findings that Salmon was
insubordinate and had inappropriately accessed confidential
student information. In March 2018, Salmon took a leave of absence
from Harrington and did not return for the remainder of the school
year. In the summer of 2018, Salmon sought transfer to several
open teaching positions at Fredette's and McPhee's respective
schools.5 She was interviewed and considered, but ultimately not
hired. In both instances, hiring committees at each school
unanimously decided to hire external applicants over Salmon.
In June 2019, Salmon filed this action against Lang,
Tobin, Fredette, McPhee, and the School Committee, alleging
violations of the First Amendment, under 42 U.S.C. § 1983, and the
Massachusetts Civil Rights Act ("MCRA"), Mass. Gen. Laws ch. 12,
§ 11H. The thrust of her claims was that the defendants retaliated
For Fredette's school (Byum Elementary), Salmon applied and
5
interviewed for three positions: second-grade teacher, fourth-
grade teacher, and elementary moderate special needs teacher. For
McPhee's school (McCarthy Middle), Salmon applied and interviewed
for an eighth-grade special education teaching position.
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against her in response to her union advocacy, through workplace
harassment, disciplinary action, and transfer denials. Salmon
also sued Moses for defamation, arising from several social media
posts about her involvement in the November 22 incident. In
February 2020, Salmon sought leave to amend her complaint to add
a new claim against the Town of Chelmsford under the Massachusetts
Whistleblower Act ("MWA"), Mass. Gen. Laws ch. 149, § 185, arising
from her complaints to school officials of classroom-temperature
issues, dating back to 2016, the complaints of working conditions
raised to Tobin in 2017, and various adverse actions taken against
her from November 22 through her 2018 transfer denials. The court
granted her motion to amend only insofar as the new claim was based
on alleged adverse actions occurring since February 2018 (within
the MWA's two-year statute of limitations period), thus denying
Salmon's request for "relation back" under Federal Rule of Civil
Procedure 15(c). After discovery, the defendants secured summary
judgment on all claims. See Salmon v. Lang, No. 19-cv-11378, 2021
WL 294512 (D. Mass. Jan. 28, 2021). This timely appeal followed.
II. SUMMARY JUDGMENT RULINGS
We turn first to Salmon's challenges to the district
court's entry of summary judgment on her First Amendment-
retaliation, MCRA, MWA, and defamation claims. We review summary
judgment decisions de novo, affirming only if the record shows
"there is no genuine dispute as to any material fact and the movant
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is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a); Stuart v. City of Framingham, 989 F.3d 29, 34-35 (1st Cir.
2021).6 We evaluate the facts and "draw all reasonable inferences
from the record in the light most favorable to the nonmoving
party," but "disregard[] any 'conclusory allegations, improbable
inferences, and unsupported speculation.'" McGrath v. Tavares,
757 F.3d 20, 25 (1st Cir. 2014) (quoting Alicea v. Machete Music,
744 F.3d 773, 778 (1st Cir. 2014)). We may affirm summary judgment
"on any basis apparent from the record." Id.A. First Amendment Retaliation Claims
To prevail on a speech-retaliation claim as a public
employee, a plaintiff must prove that (1) she "spoke as a citizen
on a matter of public concern," (2) her employer lacked "an
adequate justification for treating [her] differently from any
other member of the general public," and (3) her "protected
expression was a substantial or motivating factor in the adverse
employment decision." Bruce v. Worcester Reg'l Transit Auth., 34
F.4th 129, 135 (1st Cir. 2022); see also Alston v. Town of
Brookline, 997 F.3d 23, 42 (1st Cir. 2021) (internal quotation
marks and citations omitted); McGunigle v. City of Quincy, 835
6 A dispute is "genuine" if "a jury can reasonably interpret
the evidence in the non-movant's favor," and a fact is "material"
if it is "one that might affect the outcome of the suit under
governing law." Reyes-Orta v. P.R. Highway & Transp. Auth., 811
F.3d 67, 73 (1st Cir. 2016) (internal quotes and cites omitted).
- 11 -
F.3d 192, 202 (1st Cir. 2016) (explaining that the second element
requires a plaintiff to demonstrate that her interests "'as a
citizen, in commenting upon matters of public concern' outweighed
[her] employer's interest 'in promoting the efficiency of the
public services it performs through its employees'" (quoting
Decotiis v. Whittemore, 635 F.3d 22, 29 (1st Cir. 2011)). Salmon's
appeal concerns only the third element of this test.
"For purposes of speech retaliation an 'adverse
employment [decision]' includes an action the employer takes that
would 'deter a reasonably hardy individual from exercising his
constitutional rights.'" Gutwill v. City of Framingham, 995 F.3d
6, 12 (1st Cir. 2021) (cleaned up) (quoting Barton v. Clancy, 632
F.3d 9, 29 (1st Cir. 2011)). Whether a plaintiff's protected
speech was a "substantial or motivating factor in [an] adverse
employment decision . . . is simply a question of causation," and
is "analyzed in two steps." Davignon v. Hodgson, 524 F.3d 91, 106
(1st Cir. 2008) (internal quotes and cites omitted). This two-
step "causation test" has long been known as "the Mt.
Healthy . . . burden-shifting test." See, e.g., Guilloty Perez v.
Pierluisi, 339 F.3d 43, 56 (1st Cir. 2003) (referring to Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977)); see also Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301-
02 (1st Cir. 2014).
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Under Mt. Healthy, "the plaintiff must [first] show that
the employer would not have taken adverse action but for the
plaintiff's speech," through direct or circumstantial evidence of
such a causal link. Davignon, 524 F.3d at 106. Then, "[i]f the
plaintiff meets that burden, the burden shifts to the
employer . . . to sever the causal link." Id. That is, the
employer must "prove by a preponderance of the evidence that 'it
would have reached the same decision [regarding the adverse
employment event] even in the absence of the protected conduct.'"
Stuart, 989 F.3d at 35 (quoting Mt. Healthy, 429 U.S. at 287)
(alterations in original). "If the employer cannot adduce evidence
of an alternative justification . . . or if that evidence, once
adduced, does not suffice to prove the point, the employee has
established a constitutional violation." Guilloty Perez, 339 F.3d
at 51. Conversely, if the employer presents a non-retaliatory
reason for the action, "the burden shifts back to the plaintiff to
'discredit [it], either circumstantially or directly, by adducing
evidence that [retaliation] was more likely than not a motivating
factor." Pierce, 741 F.3d at 302; see, e.g., Stuart, 989 F.3d at
35 (same). Cf. Nieves v. Bartlett, 139 S.Ct. 1715, 1722, 1725
(2019) (discussing the Mt. Healthy test in the context of a
retaliatory-arrest case).
Against this backdrop, we begin our examination of
Salmon's arguments. She contends that the district court erred in
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(i) applying the Mt. Healthy "defense" sua sponte; (ii) concluding
that Salmon could not prove causation in her claims against Lang,
Fredette, and McPhee; and (iii) concluding that Salmon could not
prove Tobin took any adverse employment action against her. We
address each in turn.
1. Application of Mt. Healthy Burden-Shifting Test
Salmon first contends that the district court erred in
applying the Mt. Healthy burden-shifting analysis to her
retaliation claim against Lang, arguing that "Mt. Healthy is a
defense that must be raised affirmatively by a defendant" and that,
here, the defendants failed to do so in both their answers and
motion for summary judgment. We disagree.
The sometimes-called "Mt. Healthy defense" is not
strictly an "affirmative defense" that is ordinarily waived if not
timely pled, under Rules 8(c) and 12(h). See generally Fed. R.
Civ. P. 8(c), 12(h). However, even if we were to strictly view
the Mt. Healthy defense as an "affirmative defense" under Rule 8,
the defendants adequately raised it here. For instance, in their
answers, the defendants asserted as an "affirmative defense" that
"Plaintiff's claims fail because the Defendant's actions were
based on legitimate business reasons and/or business necessity,"
which Salmon concedes was "arguably a Mt. Healthy-like defense."
In their summary judgment brief, the defendants specifically
challenged the "causal connection" element of Salmon's retaliation
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claims, arguing that Lang's conduct in sending Salmon home was
motivated by a desire to "quell the charged atmosphere," and that
his subsequent discipline of Salmon was "standard protocol."
These arguments clearly invoke Mt. Healthy burden-
shifting to anyone familiar with the doctrine and the defendants
cited to caselaw applying it throughout this litigation. See,
e.g., Lewis v. City of Bos., 321 F.3d 207, 219-20 (1st Cir. 2003).
Thus, Salmon's argument that the district court's analysis under
Mt. Healthy constituted "unfair surprise" fails. Given our settled
law in this area, Salmon should have been aware that "[t]o qualify
for relief," her claims "must survive the burden-shifting
enunciated in Mt. Healthy." See, e.g., Pierce, 741 F.3d at 301.
2. No Causation As To Claims Against Lang
Next, Salmon challenges the district court's
determination that, under Mt. Healthy, Lang severed the causal
link between Salmon's union advocacy and the written reprimand, by
showing that the latter was motivated by Salmon's insubordination
and unauthorized access of student records.7 Salmon specifically
7Salmon does not appear to specifically challenge the
district court's conclusion that Lang's decisions to have Salmon
removed from the school building on November 22 and to place her
on paid leave were justified by non-retaliatory reasons, i.e., to
"minimize distraction to students" and to "facilitate an impartial
investigation," respectively. See Salmon, 2021 WL 294512, at *5.
Nor does she marshal evidence to discredit these non-retaliatory
justifications. In any event, we agree with the district court
that, under Mt. Healthy, Lang was entitled to summary judgment
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contends that the court improperly relied on two disputed facts in
reaching this conclusion: (i) that Salmon violated the student-
record access policy, and (ii) that Tobin was "willing to meet
with Salmon, but not on the date requested."8 We find no error
and conclude that entry of summary judgment in favor of Lang was
appropriate. The district court's opinion on this point is sound,
and we adopt its reasoning; we add only a few points of emphasis
in response to Salmon's specific arguments on appeal.
First, Salmon violated the school's confidential-access
policy, or so Lang supportably determined. Salmon contends that
-- contrary to the district court's finding -- a reasonable jury
could find that Salmon was authorized to view LeRivee's student's
records, because she was a "staff [member] working with the
student" in LeRivee's classroom. We disagree that the record could
reasonably support such a finding.
insofar as Salmon's retaliation claim relied upon these other
adverse actions.
8 Salmon also argues that the district court erred in
describing certain other facts in a light that was unfavorable to
her, e.g., that "Blanchet became agitated and combative" during
his interaction with Tobin, that he "put his hands on Lang," and
omitting that the plain-clothes officer who escorted Salmon from
the building had a police badge around his neck. We find no error
in the district court's recounting of these facts. In any event,
Salmon fails to explain how any of them are material. Indeed, she
acknowledges that the district court "did not expressly rely on
any of these 'facts'" in its ruling.
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The school's policy states that "[o]nly those persons
authorized under law and in conformance with these statements of
policy and regulation may see a student's file." State regulations
provide that only "authorized school personnel shall have access
to the student records of students to whom they are providing
services, when such access is required in the performance of their
official duties." 603 Mass. Code. Regs. § 23.07. "Authorized
personnel" is further defined to include two categories of people:
(i) teachers, administrators, or service providers "who are
working directly with the student in an administrative, teaching,
counseling, and/or diagnostic capacity," and (ii) "administrative
office staff and clerical support . . . whose duties
require . . . access to student records for purposes of processing
information for the student record." See 603 Mass. Code. Regs.
§ 23.02.
Salmon does not adduce any evidence that she was "working
directly with [LeRivee's] student in an administrative, teaching,
counseling, and/or diagnostic capacity." Thus, there is no basis
to conclude that she was "authorized personnel."9 At best, the
record demonstrates that Salmon "checked in with [LeRivee]
regularly" and provided classroom-wide assistance to her on a few
9The second category of "authorized personnel" is plainly
inapplicable to Salmon, and she does not make any argument to the
contrary.
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occasions. This classroom assistance included one instance,
during Salmon's lunch break, where she "followed" the student in
question after the student had bolted from class, "along with the
support staff in that classroom." Moreover, LeRivee told
investigators that, when Salmon came into her classroom to help,
she "circulat[ed] the room and [was] helping children," and that
this happened "three different times." In Salmon's view, she was
there "to support a staff member," "acting as the Union President
[but] also [as] a teacher and parent in [the] building." But the
record is devoid of any evidence that Salmon was ever "working
directly" with the student whose incident reports she accessed.
This conclusion is bolstered by the Investigation Report, on which
Lang relied in disciplining Salmon. The Investigation Report found
that Salmon "was not providing any services to [this] student,"
that she "was not an 'authorized school personnel'" as to that
student, and that she therefore "violated student records
confidentiality requirements" when she accessed that student's
file. Thus, Salmon's assertion that she was authorized personnel,
as a "staff [member] working with that student," is not supported
by the record. There was no error in the district court's
treatment of this undisputed fact. See, e.g., Rossy v. Roche
Prods., Inc., 880 F.2d 621, 624 (1st Cir. 1989) (noting that even
where proof is based on inferences, summary judgment for defendant
may be appropriate where "plaintiff rests merely upon unsupported
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allegations" (quoting Méndez v. Belton, 739 F.2d 15, 20 (1st Cir.
1984))).
Second, Salmon asserts that -- contrary to the district
court's finding that "Tobin was willing to meet with Salmon, but
not on the date she requested" -- a reasonable jury could find
that Tobin was "not willing to meet" at all. Again, we not only
disagree, but also fail to see how this fact is material. Lang's
discipline of Salmon was based, in part, on his finding that she
was "insubordinate in [appearing for and] demanding a meeting on
November 22 . . . where Ms. Tobin and Ms. Reese . . . had already
notified [her] that they were denying [her] request." It is
undisputed that Salmon's request was in fact denied. Indeed,
Salmon acknowledged these denials herself, in subsequent emails to
Reese, Tobin, and Lang. Whether or not Tobin was genuinely willing
to meet with Salmon on a later date, as she said she was, has no
bearing on the fact that Salmon's request to meet on November 22
had been denied. Nor does it affect the fact that Salmon and
Blanchet appeared in Salmon's office on November 22, contrary to
Tobin's instruction that there would be no meeting that day. Thus,
no reasonable jury could disagree that Salmon appeared for a
meeting that her superiors told her was not happening. Lang
explicitly based his disciplinary action on this insubordinate
conduct, and Salmon has failed to adduce any evidence to discredit
that nonretaliatory reason. We find no error in the district
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court's treatment of this fact. Cf. Torres-Rosado v. Rotger-
Sabat, 335 F.3d 1, 13 (1st Cir. 2003) (affirming summary judgment
in First Amendment-retaliation context where
"[p]laintiff . . . ha[d] not produced any evidence creating a
material issue of fact that she would not have been terminated in
any event for insubordination [and] absenteeism").
3. No Causation As To Claims Against Fredette & McPhee
Next, Salmon challenges the district court's
determination that evidence could not support a causal link between
Salmon's union advocacy and the denial of her transfer applications
by Fredette and McPhee. Specifically, Salmon contends that this
nexus can be inferred from her complaints of heating issues in
Fredette's and McPhee's respective buildings, the fact that both
of them attended the December 5 School Committee meeting in support
of Lang, that neither had ever before passed up an internal
transfer applicant in favor of an external hire, and that McPhee
violated standard policy in considering Salmon's application
together with three external candidates instead of considering
hers first. We adopt the district court's reasoning and find no
error in its entry of summary judgment in favor of Fredette and
McPhee. We again add only a few points of emphasis.
As noted above, to succeed on her retaliation claims,
Salmon must introduce enough evidence to support a finding that
her union advocacy "was a substantial or motivating factor behind"
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the denials of her transfer applications. See McGunigle, 835 F.3d
at 203. "It is not enough to show that an official acted with a
retaliatory motive and that the plaintiff was injured -- the motive
must cause the injury." Nieves, 139 S.Ct. at 1722. That is, "it
must be a 'but-for' cause, meaning that the adverse action against
the plaintiff would not have been taken absent the retaliatory
motive." Id. (citing Hartman v. Moore, 547 U.S. 250, 260 (2006)).
Thus, under Mt. Healthy's burden shifting analysis, Salmon must
first show that Fredette and McPhee would not have denied her
applications "but for [her] speech." See Davignon, 524 F.3d at
106. "Although [Salmon] may rely on circumstantial evidence to
make this showing, [she] must produce some facts linking" her
transfer denials with her union advocacy. See McGunigle, 835 F.3d
at 203. Thus, to survive summary judgment, Salmon must have
adduced evidence from which a reasonable juror could infer such a
link, see id. at 201, but she has failed to do so.
The mere fact that Salmon communicated building-heating
concerns to Fredette in October 2016, and to McPhee in March 2017,
cannot alone support an inference that either of them acted with
a retaliatory motive in denying her transfer applications in June
and July 2018. See, e.g., McGunigle, 835 F.3d at 204 (argument
that adverse actions "must have been in retaliation for
[plaintiff's] speech because they happened afterwards" cannot
alone support prima facie causation). Cf. González-Droz v.
- 21 -
González-Colón, 660 F.3d 1, 17 (1st Cir. 2011) ("[A]n interval of
[fourteen months] cannot establish the necessary linkage between
protected speech and some challenged action."). This is especially
so given their responses to her emails, which indicated that they
were checking on the temperature issues and working to resolve
them. Neither expressed any hint of resentment or agitation
towards Salmon for providing this notice, and there is no evidence
that these notices were considered by either Fredette or McPhee in
connection with Salmon's transfer applications.
Moreover, the fact that Fredette and McPhee attended the
December 5 School Committee meeting to "show support" for their
colleagues, Lang and Tobin, similarly falls short of demonstrating
retaliatory motive. Although the meeting was "heated," neither
McPhee nor Fredette spoke or otherwise actively participated, and
the meeting itself did not involve either of their schools,
students, or staff. As McPhee recalled, he and Fredette simply
"sat and watched." Salmon presents no evidence to discredit this
passive characterization.
As the district court aptly determined, the heating
complaints, the School Committee meeting, and Salmon's
unsuccessful transfer applications are merely "dots that defy
connection." Salmon, 2021 WL 294512, at *7. There is no evidence
that Fredette's and McPhee's passive show of support for Lang and
Tobin, or their general awareness of Salmon's union advocacy at
- 22 -
Harrington, had any influence on their hiring decisions many months
later. To the contrary, it is undisputed that neither McPhee nor
Fredette discussed Salmon's transfer applications with Lang or
Tobin prior to their denials. They both only spoke with Lang about
Salmon's applications upon Lang's request, after Salmon requested
to meet with Lang following their denials. There is also no
evidence that Salmon's status as union president or past advocacy
efforts was ever discussed or considered by Fredette, McPhee, or
their school's respective hiring committees in connection with
their hiring decisions. Instead, the evidence firmly establishes
that these decisions were based on Salmon's interview performance
and lack of specialized skills and experience in the eyes of the
hiring committees. In sum, there is simply no factual basis to
support a plausible inference that Salmon's transfer denials were
motivated by any of her union advocacy efforts between 2016 and
2017. Cf. Air Sunshine, Inc. v. Carl, 663 F.3d 27, 35-36 (1st
Cir. 2011) (affirming dismissal of retaliation claim for lack of
causation, where no plausible connection between permit denials
and plaintiff's critical comments of defendant's co-worker).10
10Because Salmon has failed to make a prima facie showing to
satisfy the third prong of her retaliation claims against Fredette
and McPhee, our analysis must stop here. We need not consider
whether Fredette and McPhee carried their burden, under Mt.
Healthy, of showing non-retaliatory reasons for denying Salmon's
applications. As a result, we need not consider Salmon's arguments
that external applicants had rarely been hired over internal-
transfer applicants and that McPhee violated the CBA due to the
- 23 -
4. No Adverse Action As To Claims Against Tobin
Salmon also challenges the district court's
determination that she failed to establish that Tobin took any
adverse employment action against her. On appeal, Salmon does not
contend that any of Tobin's actions were materially adverse when
considered individually, but instead asserts that the court
applied the wrong standard in considering the collective weight of
those actions and concluding that they "[did] not meet the legal
test of a hostile work environment." Salmon, 2021 WL 294512, at
*6. Again, the district court's analysis was sound, and we adopt
its analysis.
As the district court aptly recognized, "the 'adverse
employment action' inquiry in the section 1983 context focuses on
whether an employer's acts, viewed objectively . . . would have a
process in which her application was considered. Although we have
said that "[d]eviation from established policy or practice may be
evidence of pretext," Brennan v. GTE Gov't Sys. Corp., 150 F.3d
21, 29 (1st Cir. 1998), such a deviation is, of course, only
"relevant to [plaintiff's] burden of demonstrating pretext." Id.(addressing pretext in the ADEA context); see also Dunn v. Trs. of
Bos. Univ., 761 F.3d 63, 73 (1st Cir. 2014) (fact of a "deviation
from established policy" is only relevant to question of whether
defendant's "stated reasons . . . are in fact pretext for
discriminating against [plaintiff]"). Here, the issue of pretext
is irrelevant, because Salmon has wholly failed to demonstrate
but-for causation in the first instance. See, e.g., Vega-Colón v.
Wyeth Pharms., 625 F.3d 22, 28 (1st Cir. 2010) (noting, in the
employment-discrimination context, that the "inner workings" of
defendant's hiring processes "are not relevant, so long as
[plaintiff's] status was not a motivating or substantial factor in
[the] decision not to hire him").
- 24 -
chilling effect on the employee's exercise of First Amendment
rights" that is tantamount to "substantial pressure." Barton, 632
F.3d at 29; see also Alston, 997 F.3d at 49; Salmon, 2021 WL
294512, at *6 (quoting Barton, 632 F.3d at 29). Thus, the
"pertinent question" is whether the defendant's actions "would
deter 'a reasonably hardy individual[]' from exercising his
constitutional rights." Alston, 997 F.3d at 49 (alteration in
original) (quoting Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d
1209, 1217 (1st Cir. 1989) (en banc) (noting that defendant's
action must be "sufficiently severe" to have this effect)). We
have recognized that "[a] campaign of informal harassment," or
"[e]ven 'relatively minor events[,]' can give rise to § 1983
liability so long as the harassment is not so trivial that it would
not deter an ordinary employee in the exercise of his or her First
Amendment rights." See Barton, 632 F.3d at 29; Rosario–Urdaz v.
Velazco, 433 F.3d 174, 179 (1st Cir. 2006) (stating that a
"substantial campaign of harassment, instigated or knowingly
tolerated by superiors," can form the basis for a § 1983 claim);
see also Bergeron v. Cabral, 560 F.3d 1, 10 (1st Cir. 2009) ("As
a matter of law, the determination as to whether conduct
constitutes an adverse employment action must be made based on
- 25 -
objective criteria."), abrogated on other grounds by Maldonado v.
Fontanes, 568 F.3d 263 (1st Cir. 2009).11
We have also recognized, however, that "not every
action . . . that a public employee may dislike constitutes the
kind of adverse employment action that can ground a First Amendment
retaliation claim. Rather, the adverse employment action must be
'one that affect[s] employment or alter[s] the conditions of the
11 Salmon contends that the district court erred in applying
the test for "hostile work environment" utilized in the Title VII
retaliation context, which we have recognized is more exacting
than the measure of "adverse employment action" in the First
Amendment context. See, e.g., Barton, 632 F.3d at 29. In the
Title VII context, "to amount to a hostile work environment, the
alleged harassment must be 'severe or pervasive,'" in light of (i)
"the frequency and severity of the discriminatory conduct," (ii)
whether it was "physically threatening or humiliating," (iii)
whether it "unreasonably interfered with the employee's work
performance," and (iv) "the effect of the conduct on the employee's
psychological well-being." See, e.g., Gómez-Pérez v. Potter, 452
F. App'x 3, 9 & n.8 (1st Cir. 2011) (unpublished) (quoting Che v.
Mass. Bay Transp. Auth., 342 F.3d 31, 40 (1st Cir. 2003)). "Where
an employee cannot establish pervasiveness, she carries the burden
to show that the retaliatory harassment was 'so severe that it
rendered her work environment objectively hostile and abusive.'"
Id. (quoting Marrero v. Goya of P.R., Inc., 304 F.3d 7, 26 (1st
Cir. 2002)). We need not tarry on the distinction between these
two standards. The district court clearly applied our First
Amendment-retaliation standard in analyzing Salmon's claim,
notwithstanding some comparative citation to our Title VII
precedent and the similar, but less generous, standard used in
that context. See, e.g., LaRou v. Ridlon, 98 F.3d 659, 662 & n.6
(1st Cir. 1996) (noting that ADEA case law may be persuasive in
analyzing § 1983 retaliation claims, because "[t]he fundamental
meaning of 'adverse employment action' should remain constant
regardless of the particular enabling statute, given their similar
anti-discriminatory purpose.").
- 26 -
workplace.'" See Delaney v. Town of Abington, 890 F.3d 1, 6 (1st
Cir. 2018) (alterations in original) (quoting Morales-Vallellanes
v. Potter, 605 F.3d 27, 35 (1st Cir. 2010)); see also Agosto-de-
Feliciano, 889 F.2d at 1218-20 (holding that plaintiff must show
by "clear and convincing evidence" that "the employer's challenged
actions result[ed] in a work situation 'unreasonably inferior' to
the norm for the position"). "To determine whether changes in a
work situation are 'sufficiently severe to warrant the
"unreasonably inferior" description[,] the factfinder should
canvass the specific ways in which the plaintiff's job has
changed.'" Reyes-Orta v. P.R. Highway & Transp. Auth., 811 F.3d
67, 76 (1st Cir. 2016) (quoting Agosto-de-Feliciano, 889 F.2d at
1218)). The plaintiff bears the burden on this question. Id.Here, Salmon alleges that "Tobin engaged in a series of
small but collectively significant actions that would cause a
reasonable person not to exercise her First Amendment right."
Specifically, Salmon points to Tobin's conduct in October 2017,
which consisted of (i) "yelling at Salmon," (ii) "posting the email
from the union vice president [about her yelling at Salmon] behind
her desk," and (iii) and "ask[ing] Salmon why she was in certain
areas of the school."12 She further points to Tobin's conduct in
Any implied assertion by Salmon that this third act amounted
12
to excessive or unwarranted monitoring stretches the record beyond
reasonable support. The only evidence she cites for this implied
assertion is testimony from Tobin regarding an October 19 encounter
- 27 -
November through January, which consisted of (iv) "refusing to
meet on November 22,"13 (v) asking other Harrington teachers about
times in which Salmon had volunteered to help in their classrooms,
and (vi) "meeting with teachers in January 2018 and telling staff
there was a right way and wrong way to raise concerns." As a
result of Tobin's conduct, Salmon alleges that she was "ostracized
by her colleagues," without pointing to any evidence. After
careful review of the record, we agree with the district court
that no reasonable jury could find that the sum of these events
would create a "chilling" effect that would deter a reasonably
hardy individual from exercising their union-advocacy rights.
While Salmon complains about the actions described
above, the record shows that they were not consequential. This
conduct by Tobin was at most mild and consistent with her role as
Salmon's principal. As discussed above, Tobin yelled at Salmon
over the phone, in response to Salmon attempting to "undo" a
scheduling change Tobin had made, and later taped the "scathing"
with Salmon, in which she "vaguely remember[ed]" seeing Salmon
"sitting on the floor talking with a little boy who was upset,"
and then "ask[ing] her if she was okay, did she need help."
13 Again, Salmon mischaracterizes the undisputed record.
Tobin engaged with Salmon on her request and spoke with her on
November 20, 2017. Tobin told Salmon multiple times that she was
willing to meet but she was not available on the requested date.
No reasonable jury could infer that this was tantamount to a
blanket "refusal," as Salmon contends. We therefore do not
consider this allegation in our analysis.
- 28 -
email she received regarding the conversation to her file cabinet,
where she kept her "to get-to box."14 On another occasion, Tobin
stopped to ask Salmon if she was okay, after spotting her speaking
to an upset student in the hallway. Although Salmon had raised
concerns to Tobin regarding "increased staffing and improved
monitoring of students" prior to these events, there is no evidence
to support a reasonable inference that the latter had anything to
do with the former. Cf. McGunigle, 835 F.3d at 204 (fact that
adverse action happened after protected speech is not alone
sufficient to support retaliation claim). In any event, these
isolated examples of Tobin's general supervision over Salmon as a
teacher in her school -- even taken collectively -- had no
discernable impact on Salmon's work conditions that would deter a
reasonably hardy person from continuing to exercise their
constitutional rights. Cf. Alston v. Spiegel, 988 F.3d 564, 577
(1st Cir. 2021) (affirming dismissal of retaliation claim where
"two unconnected events described in the [complaint] [could not]
plausibly be characterized as a campaign of harassment sufficient
to chill the speech of a 'reasonably hardy individual[]'" (quoting
Agosto-de-Feliciano, 889 F.2d at 1217)); McKee v. Hart, 436 F.3d
14 Tobin testified that the email was not meant "to be
displayed" to others, was posted among calendars and
"inspirational poems," and that anyone entering her office would
only notice the email if they "pilfer[ed] through" her things.
There is also no evidence that the email was disparaging to Salmon
in any way.
- 29 -
165, 173 (3d Cir. 2006) ("[C]ourts have not found violations of
employees' First Amendment rights 'where the employer's alleged
retaliatory acts were criticism, false accusations, or verbal
reprimands.'") (quoting Brennan v. Norton, 350 F.3d 399, 419 (3d
Cir. 2003).
Moreover, even if it were unusual for Tobin to indirectly
supervise Salmon by asking other teachers about her volunteer
activity in their classrooms, and even assuming that Tobin's
January 2018 comment was a veiled remark directed at Salmon, these
collective actions similarly fail to satisfy Salmon's burden.
There is no evidence from which one could reasonably find or infer
that these "actions result[ed] in a work situation 'unreasonably
inferior' to the norm for the position" or would have deterred a
reasonably hardy individual. Agosto-de-Feliciano, 889 F.2d at
1218.15
15 Compare Welch v. Ciampa, 542 F.3d 927, 936-38 (1st Cir.
2008) (affirming summary judgment where alleged campaign of
"informal harassment" did not result in unreasonable work
conditions) and McKee, 436 F.3d at 170-71 (supervisor's three
comments criticizing plaintiff's job performance, without more,
were too trivial to deter a person of ordinary firmness from
exercising First Amendment rights), with Rivera-Jiménez v.
Pierluisi, 362 F.3d 87, 94-95 (1st Cir. 2004) (retaliatory
harassment, including "denial of special benefits and
assignments," was sufficiently adverse to form basis for First
Amendment claim), and Coszalter v. City of Salem, 320 F.3d 968,
976–77 (9th Cir. 2003) (campaign of retaliatory acts, including
disciplinary investigation, change in duties, and verbal
harassment and humiliation, was sufficient to support First
Amendment claim).
- 30 -
B. MCRA & MWA Claims
Salmon next challenges the district court's disposition
of her MCRA claims against Lang and Tobin and of her MWA claim
against the Town of Chelmsford. Her MCRA claims are based on the
same conduct by Lang and Tobin discussed above, whereas her MWA
claim is based on her 2018 transfer denials, which she contends
were motivated by her heating-issue complaints to Fredette and
McPhee. We address each in turn, concluding that all three claims
fail at the summary judgment stage.
1. MCRA Claims
To prevail under the MCRA, Salmon must show that "(1)
[her] exercise or enjoyment of rights secured by the Constitution
or laws of either the United States or of the Commonwealth (2) has
been interfered with, or attempted to be interfered with, and (3)
that the interference or attempted interference was by threats,
intimidation or coercion." McGunigle, 835 F.3d at 205 (quoting
Bally v. Ne. Univ., 532 N.E.2d 49, 51-52 (Mass. 1989)); see Mass.
Gen. Laws ch. 12, § 11H.16 Whether conduct amounts to threats,
16 In this context, a "'threat' means 'the intentional
exertion of pressure to make another fearful or apprehensive of
injury or harm'; 'intimidation' means 'putting in fear for the
purpose of compelling or deterring conduct'; and 'coercion' means
'the application to another of such force, either physical or
moral, as to constrain him to do against his will something he
would not otherwise have done.'" Thomas v. Harrington, 909 F.3d
483, 492 (1st Cir. 2018) (quoting Planned Parenthood League of
Mass., Inc. v. Blake, 631 N.E.2d 985, 990 (Mass. 1994)).
- 31 -
intimidation, or coercion is assessed under an objective,
"reasonable person" standard. See Planned Parenthood League of
Massachusetts, Inc. v. Blake, 631 N.E.2d 985, 990-91 (Mass. 1994).
Non-physical coercion rarely supports a basis for recovery under
the MCRA. See Thomas v. Harrington, 909 F.3d 483, 492-93 (1st
Cir. 2018). Where it has, "Massachusetts courts have required 'a
pattern of harassment and intimidation.'" Id. (quoting Howcroft
v. City of Peabody, 747 N.E.2d 729, 746 (Mass. App. Ct. 2001))
(finding repeated verbal harassment, relocation of work site, and
multiple failed attempts to suspend plaintiff without pay and
deprive him of benefits supported a MCRA claim)).
Here, we agree with the district court that Salmon has
failed to identify any threats, intimidation, or coercion by Tobin
or Lang sufficient to support her MCRA claims.17 As already
discussed, Tobin's various actions towards Salmon were too trivial
to constitute a pattern of harassment or intimidation sufficient
to deter an ordinary person from exercising her freedom of speech.
17 This assumes that the alleged "interference" was
interference with Salmon's continued exercise of her
constitutional rights, i.e., union advocacy. Salmon does not
specifically address this point. To the extent she claims that
the interfered-right was her right to be free from First Amendment
retaliation, her claim fails for the independent reasons discussed
above, as evidence was insufficient to show causation for the
retaliatory claim against Lang, or any adverse employment action
for the claim against Tobin. See McGunigle, 835 F.3d at 205
(affirming summary judgment against MCRA claims where evidence was
insufficient to prove his § 1983 retaliation claim).
- 32 -
Salmon's conclusory allegations to the contrary cannot save her
claim. See Canney v. City of Chelsea, 925 F. Supp. 58, 70 (D.
Mass. 1996) ("[M]ere recitals of boilerplate claims of 'threats,
intimidation, or coercion' do not meet the requirements of [MCRA]
pleading." (citing Hobson v. McLean Hosp. Corp., 522 N.E.2d 975,
978 (Mass. 1988))).
For her claim against Lang, Salmon points only to his
request to have her escorted from the school building by a plain-
clothes officer following the November 22 incident. Although the
district court found, at the motion to dismiss stage, that
"allegations that Lang [] directed a police officer to remove her
from the school building . . . [i]f proven . . . would amount to
intimidation or coercion," Salmon v. Lang, 2019 WL 6496844 (D.
Mass. Dec. 3, 2019), evidence of "physical force" or "unwarranted
'heavy-handed use of police power'" was not subsequently
developed, see Brunelle v. Lynn Pub. Schs., 183-84, 740 N.E.2d
625, 628-29 (Mass. 2001) (holding that the filing of a criminal
complaint is not "intimidation or coercion" within the meaning of
the MCRA, where defendant did not use "physical force" or "an
unwarranted 'heavy-handed use of police power'").18 Rather, it is
18 In denying Lang's motion to dismiss Salmon's MCRA claims
on this ground, the district court cited only to Batchelder v.
Allied Stores Corp., 473 N.E.2d 1128 (Mass. 1985). There, the
Massachusetts Supreme Judicial Court ("SJC") held that an
"order[]" from a "uniformed security officer" to stop distributing
political handbills at a mall was sufficient intimidation or
- 33 -
undisputed that Lang requested the police escort not to punish or
deter Salmon from continuing her union advocacy, but to avoid any
further disturbance after Lang gave her an opportunity to collect
her things and leave on her own. Salmon does not dispute that, as
the Superintendent, Lang was authorized to send her home that day.
Nothing in the record discredits Lang's explanation that he wanted
Salmon to leave before her students arrived, because she was
"visibly upset," and that assistance from the police would help
expedite her departure. The escort that transpired was discreet
and cooperative, as Salmon and a co-worker followed the officer
out the back door of the school.
Importantly, there is no evidence that physical force
was ever threatened or utilized. Lang's requested escort was
simply not the "perp walk" that Salmon alleged in her complaint,
and there is no evidence that it caused Salmon to abandon her union
advocacy efforts, in any event. See Thomas, 909 F.3d at 493 ("[B]y
itself, a threat to use lawful means to reach an intended result
is not actionable under [the MCRA]." (alteration in original)
coercion under the MCRA. Id. at 823, 1131. The SJC later
clarified, however, that the Batchelder holding "turned on the
threat of immediate arrest or forcible ejection implicit within"
such an "order." See Glovsky v. Roche Bros. Supermarkets, Inc.,
17 N.E.3d 1026, 1035-36 (Mass. 2014). It has since determined
that MCRA claims based on police intervention are not actionable
without some showing of physical force or an actual and unwarranted
threat of arrest, or "other serious adverse consequences." See,
e.g., Glovsky, 17 N.E.3d at 1036; Brunelle, 740 N.E.2d at 629. As
we discuss, such circumstances are absent here.
- 34 -
(quoting Buster v. George W. Moore, Inc., 783 N.E.2d 399, 411
(Mass. 2003)). As we have repeatedly stated, "'the exception for
MCRA claims based on non-physical coercion remains a narrow one,'
and it should not be invoked unless the record 'resembles the sort
of physical, moral, or economic pressure that courts have found
sufficient to support a claim under this statute." Thomas, 909
F.3d at 493 (cleaned up) (quoting Meuser v. Fed. Express Corp.,
564 F.3d 507, 519 (1st Cir. 2009)); see also Bally, 532 N.E.2d at
53 (explaining that MCRA claims typically require proof of "a
threat of serious harm" or physical force). As with her claims
against Tobin, the fact that Salmon "subjectively may have felt
'threatened' or 'intimidated'" by the officer's involvement "does
not suffice" to support her MCRA claim. See Glovsky v. Roche Bros.
Supermarkets, Inc., 17 N.E.3d 1026, 1037 (Mass. 2014). And where
the "natural effect" of the defendant's action "could not, and did
not, have an impact on the plaintiff[] in the exercise of [a
discernable] right," as is the case here, an MCRA claim cannot
survive. See Brunelle, 740 N.E.2d at 628-29.
2. MWA Claim
Having found above that Salmon has adduced insufficient
facts to survive summary judgment on her § 1983 claims against
Fredette and McPhee, we can make short work of her MWA claim
against the Town of Chelmsford. To prevail under the MWA, Salmon
must prove that (1) she "engaged in an activity protected by the
- 35 -
[MWA]," such as the disclosure of an unlawful or unsafe activity,
policy, or practice of her employer; "(2) the protected activity
was the cause of an adverse employment action, such that the
employment action was retaliatory; and (3) the retaliatory action
caused [her] damages."19 See Edwards v. Commonwealth, 174 N.E.3d
1153, 1166 (Mass. 2021) (citing Mass. Gen. Laws. ch. 149, § 185
(b)). To establish causation under the second element, a plaintiff
must show that a retaliatory animus "was a 'determinative' or 'but
for' cause of an adverse employment action, even if it was not
'the only cause.'" Edwards, 174 N.E.3d at 1168-69 (quoting
Lipchitz v. Raytheon Co., 751 N.E.2d 360, 371 n.19 (Mass. 2001)).
Here, Salmon contends that her complaints of classroom-
temperature issues in 2016 and 2017 -- which she "reasonably
believe[d] pose[d] a risk to public health [or] safety," see Mass.
Gen. Laws ch. 149, § 185(b)(1) -- were a "substantial and
motivating factor" in the 2018 denial of her transfer requests by
Fredette and McPhee.20 As discussed in some detail above, however,
Additionally, "to qualify for protection under section
19
185(b)(1), . . . an employee must first 'br[ing] the activity,
policy or practice . . . to the attention of a supervisor of the
employee by written notice and . . . afford[] the employer a
reasonable opportunity to correct the activity, policy or
practice." Pierce, 741 F.3d at 303 (alterations in original)
(quoting Mass. Gen. Laws ch. 149, § 185(c)(1)). The defendants do
not make any argument with respect to this requirement.
We have previously observed that "a plaintiff's burden of
20
proof under the MWA closely parallels his burden for First
Amendment discrimination under Mt. Healthy." See Pierce, 741 F.3d
at 303. More recently, however, the SJC has clarified that the
- 36 -
she has failed to adduce sufficient evidence that this activity
was a "but for" cause of her transfer denials. Accordingly, her
MWA claim fails.21
C. Defamation Claims
Lastly, Salmon challenges entry of summary judgment with
respect to two allegedly defamatory social media comments made by
Moses, a School Committee member. In a string of Facebook posts
among community members discussing the November 22 incident, Moses
wrote that "[Salmon] called [Tobin] a coward," and that "[Salmon]
brought [Blanchet] into a school building, without permission, who
"determinative cause standard," which is applicable in employment
discrimination cases under Mass. Gen. Laws ch. 151B, § 4, should
be used to assess MWA claims in lieu of the "substantial or
motivating factor" standard used under federal law. See Edwards,
174 N.E.3d at 1168. For the purposes of Salmon's case, we need
not consider the potential differences between the respective
state and federal standards. Under either formulation, Salmon is
required to produce evidence that her protected activity was a
"but for" cause of the adverse employment action taken against
her. Compare Edwards, 174 N.E.3d at 1169 ("[A] 'determinative
cause' of an adverse employment decision is a 'but for' cause."),
with Davignon, 524 F.3d at 106 (explaining that under Mt. Healthy,
"the plaintiff must [first] show that the employer would not have
taken adverse action but for the plaintiff's speech") (emphasis
added). In this respect, the parallel between the two standards
remains apparent.
21Because Salmon's MWA claim fails for lack of causation, we
need not consider whether the district court erred in determining
that her MWA claim independently fails because her heating-issue
disclosures did not amount to a disclosure of an employer practice
"in violation of law." Salmon, 2021 WL 294512, at *8. That said,
we note that her disclosures might support a MWA claim as a
"practice . . . the employee reasonably believes poses a risk to
public health, safety, or the environment." Mass. Gen. Laws ch.
149, § 185(b)(1).
- 37 -
then assaulted a staff member while children were in the school."
The district court disposed of these claims on the grounds that
neither statement was actionable as defamation, finding that the
first was "substantially true" and that the second was not "of and
concerning" Salmon. See Salmon, 2021 WL 294512, at *8-9. For the
reasons discussed below, we agree with the district court's
assessment of the first of these statements and affirm its holding
as to the second on alternative grounds. See McGrath, 757 F.3d at
25.
To prevail on a claim of defamation under Massachusetts
law, a "plaintiff must establish that the defendant published 'a
false statement regarding the plaintiff, capable of damaging the
plaintiff's reputation in the community, which either caused
economic loss or is actionable without proof of economic loss.'"
Zeigler v. Rater, 939 F.3d 385, 392 (1st Cir. 2019) (quoting White
v. Blue Cross & Blue Shield of Mass., Inc., 809 N.E.2d 1034, 1036
(Mass. 2004)). "[T]o be actionable, the statement must be one of
fact rather than of opinion." Scholz v. Delp, 41 N.E.3d 38, 45
(Mass. 2015); see King v. Globe Newspaper Co., 512 N.E.2d 241, 243
(Mass. 1987) ("Statements of pure opinion are constitutionally
protected."). Similarly, "'[s]tatements that are merely
"rhetorical hyperbole," or which express a "subjective view," are
not statements of actual fact.'" Lawless v. Estrella, 160 N.E.3d
1253, 1257 (Mass. App. Ct. 2020) (quoting Kelleher v. Lowell Gen.
- 38 -
Hosp., 152 N.E.3d 126, 132 (Mass. App. Ct. 2020)). "Whether a
statement is a factual assertion or an opinion is a question of
law 'if the statement unambiguously constitutes either fact or
opinion,' and a question of fact 'if the statement reasonably can
be understood both ways.'" Scholz, 41 N.E.3d at 45 (quoting King,
512 N.E.2d at 244). A factual statement must also either be false
or made with "actual malice" to support a claim. See Noonan v.
Staples, Inc., 556 F.3d 20, 26 (1st Cir. 2009). But it "need not
state the precise truth" to be nonactionable. Reilly v. Associated
Press, 797 N.E.2d 1204, 1211 (Mass. App. Ct. 2003) (citing
Dulgarian v. Stone, 652 N.E.2d 603, 607 (Mass. 1995)). "When a
statement is substantially true, a minor inaccuracy will not
support a defamation claim." Lawless, 160 N.E.3d at 1257-58
(quoting Reilly, 797 N.E.2d at 1211). See Noonan, 556 F.3d at 28(noting that, under Massachusetts law, an alleged defamatory
statement that is "substantially true" is nonactionable).
1. Statement #1: "[Salmon] called [Tobin] a coward."
First, Salmon contends that the district court erred in
finding that Moses's first comment -- i.e., "[Salmon] called
[Tobin] a coward" -- was "substantially true." To be sure, this
statement is technically false. Salmon did not call Principal
Tobin a coward, but instead told Reese that her "unwillingness to
have a conversation about solutions [was] cowardly." However, we
agree with the district court that, notwithstanding this "minor
- 39 -
inaccuracy," see Salmon, 2021 WL 294512, at *8, the "tenor" of
Moses's account of Salmon's email was substantially true,
particularly "when considered in the context in which it was
[made]," as we must, see Dulgarian, 652 N.E.2d at 607.
Indeed, Moses's statement was made in response to a
question from another commenter regarding the "supposed process"
used to address teacher concerns in a case in which "the Principal
refuses to even meet." Moses replied that "the Principal offered
to meet directly with the teacher. After [Salmon] called her a
coward, of course."
Salmon has not expressly articulated how this remark
could cause her reputational harm. Assuming it could,22 Salmon
calling her school's principal a "coward" in this context has the
same defamatory effect as her calling any other school official
"cowardly." See, e.g., Veilleux v. Nat'l Broad. Co., 206 F.3d 92,
108 (1st Cir. 2000) ("Where a defendant alters a speaker's words
but effects no material change in meaning, the speaker suffers no
injury to reputation that is compensable under the law of
defamation." (citing Masson v. New Yorker Mag., 501 U.S. 496, 516
(1991))). In either case, the only apparent defamatory effect is
that Salmon expressed contempt or disrespect towards the school
22 For instance, Massachusetts courts have found that
"[s]tatements suggesting that one lacks a necessary professional
characteristic are defamatory." Reilly, 797 N.E.2d at 1216.
- 40 -
officials with whom she had requested to meet. To which official
she specifically directed this insult is not material to how a
reasonable reader would understand Moses's statement describing
it. Cf. Locke v. WHDH-TV, Inc., 22 N.E.3d 177 (Table), 2014 WL
7334096, at *1-2 (Mass. App. Ct. Dec. 23, 2014) (unpublished)
(affirming summary judgment where the "gist and defamatory sting
of [plaintiff's] actions . . . and [defendant's statements
describing them] were substantially similar"); Waters v. Kearney,
173 N.E.3d 57 (Table), 2021 WL 3671276, at *5-6 (Mass. App. Ct.
Aug. 19, 2021) (unpublished) (statement that plaintiff was "found
not guilty," where, in fact, the charges against him were
dismissed, was "substantially true" and could not support a
defamation claim); Boyle v. Cape Cod. Times, 959 N.E.2d 457(Table), 2012 WL 28661, at *2 (Mass. App. Ct. Jan. 6, 2012)
(unpublished) (affirming summary judgment on defamation claim
based on finding of "minor factual discrepancies"). Thus, summary
judgment as to this statement was appropriate where Salmon "had no
reasonable expectation" of proving the statement to be materially
false. See Dulgarian, 652 N.E.2d at 607.23
Salmon argues that the question of whether a statement is
23
substantially true, even if technically inaccurate, is only
relevant in the context of the "fair reporting privilege," which
no one suggests applies here. See, e.g., Elm Med. Lab'y, Inc. v.
RKO Gen., Inc., 532 N.E.2d 675, 678 (Mass. 1989) (explaining that
the "fair reporting privilege" allows news media "who fairly and
accurately report certain types of official or governmental action
to be immune from liability for claims arising out of such
- 41 -
2. Statement #2: "[Blanchet] assaulted a staff member while
the children were in school."
Next, Salmon argues that the district court erred in
finding that Moses's comment that Blanchet "assaulted a staff
member while children were in school" was not "of and concerning"
Salmon, and therefore not actionable. She argues that the district
court took this statement out of context, and that the full context
of the statement -- and full chain of posts, which at times refer
to Salmon by name -- make clear that Salmon was identified as the
person who brought Blanchet into the building, i.e., "[a] Union
Officer brought a Union Representative into a school building,
reports"); see also Jones v. Taibbi, 512 N.E.2d 260, 266 (Mass.
1987). Her argument is unavailing, as Massachusetts courts have
separately recognized, outside the fair-reporting context, that "a
minor inaccuracy will not support a defamation claim" when a
statement is substantially true. See, e.g., Reilly, at 79 N.E.2d
at 1210; see also Murphy v. Bos. Herald, Inc., 865 N.E.2d 746, 754
n.10 (Mass. 2007) (approving jury instruction for defamation claim
stating that "minor errors that do not change the readers'
understanding of its words, do not make the statement false");
Dulgarian, 652 N.E.2d at 607 (affirming summary judgement for
defamation-defendant despite minor factual inaccuracies where the
statements were "essentially correct" and the "tenor of the report
was accurate," when "viewed as a whole"). This is also consistent
with more widely recognized principles of defamation law. See,
e.g., Masson, 501 U.S. at 517 ("[A] statement is not considered
false unless it would have a different effect on the mind of the
reader from that which the pleaded truth would have produced."
(internal quotes and cites omitted)); Restatement (Second) of
Torts § 581A cmt. f (1977) ("[I]t is not necessary to establish
the literal truth of the precise statement made. Slight
inaccuracies of expression are immaterial provided the defamatory
charge is true in substance.").
- 42 -
without permission, who then assaulted a staff member while
children were in the school."
As an initial matter, we agree with Salmon that this
statement could be reasonably understood to refer to her. See,
e.g., Yong Li v. Yanling Zeng, 159 N.E.3d 199, 203–04 (Mass. App.
Ct. 2020) (explaining that the "of and concerning" test is met if
readers of statement "could reasonably interpret the defendant's
words to refer to the plaintiff" (quoting ELM Med. Lab'y, Inc. v.
RKO Gen., Inc., 532 N.E.2d 675, 679 (Mass. 1989))). A reasonable
jury could conclude that Moses's comment was, at least
tangentially, "of and concerning" Salmon, insofar as it identifies
involvement of "[a] union leader" that brought an alleged
"assault[er]" into the building. In an earlier comment, Moses
referred to the teacher who demanded the meeting as "Jen," and
other commenters in the chain of posts had previously referred to
the "union leader" as "Ms. Salmon." Given the full context of the
Facebook-comment thread and the audience, Salmon was readily
identifiable from Moses's use of "union leader." See, e.g.,
Reilly, at 797 N.E.2d at 1215-16 (jury could reasonably find that
defamatory statements not expressly "aimed" at the plaintiff
"could be understood to 'hit' [him]" through innuendo and
"interlaced . . . references to [the plaintiff]").
Summary judgment in Moses's favor is still appropriate,
however, because the false, factual components of this statement
- 43 -
are not defamatory as to Salmon. "[W]hether a communication is
reasonably susceptible of a defamatory meaning, is a question of
law for the court." Phelan v. May Dep't Stores Co., 819 N.E.2d
550, 554 (Mass. 2004). In determining whether a statement is
factual or inactionable opinion, a court must "examine the
statement in its totality in the context in which it was uttered
or published," and "must consider all the words used, not merely
a particular phrase or sentence." See Scholz, 41 N.E.3d at 45-46
(quoting Cole v. Westinghouse Broad. Co., 435 N.E.2d 1021, 1025
(Mass. 1982)). Relevant factors to consider include "the specific
language used," "whether the statement is verifiable," "the
general context of the statement," and "the broader context in
which the statement appeared." Id. at 46 (quoting Milkovich v.
Lorain Journal Co., 497 U.S. 1, 9 (1990)). "If it is plain that
the speaker is expressing a subjective view, an interpretation, a
theory, conjecture, or surmise, the statement is not actionable."
Id. (cleaned up). Where facts are mixed with, or offered to
support an opinion, those facts must be defamatory as to the
plaintiff to be actionable. See id. at 49 (concluding that
recitation of stress-inducing events that preceded a man's suicide
were factual, but not defamatory to the plaintiff that purportedly
caused those events, and therefore not actionable); McKee, 874
F.3d at 61 ("[An opinion] is 'immunized' so long as the speaker
- 44 -
discloses all of the facts undergirding it and none of them are
both false and defamatory[.]").
Here, Moses's comment must be looked at in its
entirety.24 See, e.g., Cole, 435 N.E.2d at 1025. Although it
contains factual assertions that are either disputed -- i.e., that
Blanchet "assaulted" Tobin -- or perhaps overstated -- e.g., "while
children were in the school" -- these statements are not defamatory
as to Salmon. See Scholz, 41 N.E.3d at 45-46, 49; Yohe v. Nugent,
321 F.3d 35, 40-41 (1st Cir. 2003) ("[I]naccuracy by itself does
not make a statement defamatory."). The only defamatory
24Moses full comment, made in the context of a discussion
about the November 22 incident, consisted of the following:
I want to be clear. A Union Officer brought a Union
Representative into a school building, without
permission, who then assaulted a staff member while
children were in the school. The secretary was so scared
she was whispering for help into the phone when she
answered a call at her desk. The busses had to be routed
around police cruisers so the children could go into the
school. Not a single care has been given to Mrs. Tobin,
an 18 year teacher and 18 year principal in Billerica.
None. Not a single thought has gone into how SERIOUS a
danger your children could be in from the actions of an
adult who tried to bully a woman. The Union has no
rights for administrative process, or to confidential
information. And in demanding it and not following the
rules there was actual, real danger brought into the
Harrington Hallways. Then, on Chelmsford News I stood
by while people turned a 6 year old boy into a mythical
monster in order to excuse all of the above actions.
There was enough information in those discussions to
single out a child (and yes, some people figured out who
the child is). I want you all to think about that, a 6
year old was outed to excuse a mistake.
- 45 -
connotation that Salmon reasonably alleges is that the comment
implies Salmon was responsible for bringing this "assaulter" into
the school and endangering children. The fact that Salmon brought
Blanchet into the school is indisputably true. As is the fact
that at least Salmon's children were in the building at the time.
The implication that Salmon was responsible for Blanchet's ensuing
conduct is pure opinion. It reflects Moses's "subjective views"
as to the sequence of events, potential danger posed to staff and
students, and Salmon's blameworthiness. It is not a "verifiable
fact[]." See Scholz, 41 N.E.3d at 46; Lawless, 160 N.E.3d at 1257
(statements of "rhetorical hyperbole, or which express a
subjective view are not statements of actual fact" and are
therefore not actionable as defamatory (internal quotes and cites
omitted)). Cf. Greenbelt Co-op. Publ'g Ass'n v. Bresler, 398 U.S.
6, 13-14 (1970) (holding that use of the word "blackmail" to
describe plaintiff's negotiating position could not be understood
as a statement of fact); Reilly, 797 N.E.2d at 1213-14 (statement
"suggesting" that third party "suspected" plaintiff was
"responsible" for a missing medical file was protected opinion
based upon disclosed nondefamatory fact that the file was indeed
missing). Read in its full context, Moses's statement, at most,
amounts to his own "personal conclusions about the information
presented." See Piccone v. Bartels, 785 F.3d 766, 774 (1st Cir.
2015) (cleaned up) (quoting Phantom Touring v. Affiliated Publ'ns,
- 46 -
953 F.2d 724, 730 (1st Cir. 1992)). Where, as here, "the speaker
'outlines the facts available to him, thus making it clear that
the challenged statements represent his own interpretation of
those facts and leaving the [listener] free to draw his own
conclusions,'" a claim of defamation cannot survive. See Piccone,
785 F.3d at 774 (quoting Riley v. Harr, 292 F.3d 282, 289 (1st
Cir. 2002)).
III. DENIAL OF MOTION FOR LEAVE TO AMEND
Next, we turn to Salmon's appeal of the district court's
orders denying her requests to have her amended MWA claim "relate
back" to the date of original filing, which were raised in a motion
for leave to amend and then a motion for reconsideration. The
thrust of Salmon's argument is that state relation-back law should
have applied rather than the more restrictive rule under Federal
Rule of Procedure 15(c)(1)(C). We review both orders for abuse of
discretion. See U.S. ex rel. Ge v. Takeda Pharm. Co. Ltd., 737
F.3d 116, 127 (1st Cir. 2013). In so doing, we are mindful that
"[t]he granting of a motion for reconsideration is an extraordinary
remedy which should be used sparingly." Id. (quoting Palmer v.
Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006)) (other quotes
and cites omitted). The moving party "must either clearly
establish a manifest error of law or must present newly discovered
evidence" to warrant such relief. Id. (internal quotes and cites
omitted); see also Caribbean Mgmt. Grp. V. Erikon LLC, 966 F.3d
- 47 -
35, 44-45 (1st Cir. 2020). For the reasons discussed, we find no
abuse of discretion.
A.
In February 2020, Salmon sought leave to file a second
amended complaint ("SAC") to add a new a claim -- under the MWA,
against a new defendant, the Town of Chelmsford -- and have it
relate back to the original date of filing, June 2019. Her only
argument to justify relation back was that the new claim "arose
out of the conduct, transaction, or occurrence set out . . . in
the original complaint," citing Federal Rule of Civil Procedure
15(c) without further argument. Cf. Fed. R. Civ. P. 15(c)(1)(B);
see Mot. for Leave to File Second Am. Compl. at 3, Salmon v. Lang,
No. 19-cv-11378 (D. Mass. Feb. 19, 2020), Dkt. No. 31. The
district court rejected Salmon's relation-back argument and
allowed her motion only insofar as the new claim alleged adverse
action occurring within the MWA's two-year limitations period,
i.e., back to February 2018.25 The district court concluded that
Salmon's new claim failed to satisfy the relation-back requirement
under Federal Rule 15(c)(1)(C), because it was motivated purely by
a new legal theory rather than mistake concerning the proper
defendant's identity. See Krupski v. Costa Crociere, S.p.A., 560
25 As a practical matter, this allowed Salmon to include
allegations underlying her transfer-request denials, in summer
2018, but precluded her from seeking redress for other alleged
adverse actions dating back to the November 22, 2017 incident.
- 48 -
U.S. 538, 552 (2010) (requirements for relation back under Rule
15(c)(1)(C)(ii) not satisfied where "failure to name the
prospective defendant in original complaint was the result of a
fully informed decision as opposed to a mistake concerning the
proper defendant's identity").
Salmon timely moved for reconsideration under Rule 60,
arguing -- for the first time -- that relation back was permitted
under Federal Rule 15(c)(1)(A), because the "law that provides the
applicable statute of limitations," here Massachusetts, "allows
relation back." See Mass. R. Civ. P. 15(c) (allowing for relation
back for any claim arising out of the same "conduct, transaction,
or occurrence" set forth in original pleading). Salmon also cited
several district court diversity cases holding that, under Federal
Rule 15(c)(1)(A), the less-restrictive Massachusetts Rule 15(c)
"displaces" the more-restrictive Federal Rule 15(c)(1)(C) to allow
for relation back of state-law claims, notwithstanding her failure
to show mistaken-identity.26
26For instance, in Abernathy v. Dewey, the court held that
whether a diversity-plaintiff's "state-law claims relate back is
an issue of Massachusetts law," relying, in part, upon our
observation, in Morel v. Daimler-Chrysler AG, 565 F.3d 20, 26 (1st
Cir. 2009), that "Rule 15(c)(1)(A) 'cements in place a one-way
ratchet; less restrictive state relation-back rules will displace
federal relation-back rules, but more restrictive state-relation
back rules will not.'" Abernathy v. Dewey, 277 F. Supp. 3d 129,
137-38 (D. Mass. 2017); see also Cayo v. Fitzpatrick, 95 F. Supp.
3d 8, 13 (D. Mass. 2015) (same, in diversity case); Labrador v.
Indus. Contractors' Supplies, Inc., No. 13-cv-13029, 2015 WL
5737141, at *2 (D. Mass. Sept. 30, 2015) (same, in diversity case).
- 49 -
The district court denied Salmon's motion in a brief
written order. The court agreed that the Massachusetts rule was
less restrictive, as it granted broader discretion over relation
back, but determined that Federal Rule 15(c)(1)(A) does not require
a court to apply state relation-back rules in a "non-diversity
case . . . when doing so would contradict the terms of Fed. R.
Civ. P. 15(c)(1)(C)." See Electronic Order, Salmon, No. 19-cv-
11378 (D. Mass. Feb. 25, 2020), Dkt. No. 34. The court went on to
distinguish the cases cited by Salmon, finding that their reliance
on dictum from our decision in Morel was unpersuasive, particularly
in the non-diversity context. Id.; see Morel v. Daimler-Chrysler
AG, 565 F.3d 20, 26 (1st Cir. 2009) (observing that Rule
15(c)(1)(A) "cements in place a one-way ratchet; less restrictive
state relation-back rules will displace federal relation-back
rules, but more restrictive state relation-back rules will
not.'"). As the district court aptly noted, the Morel case did
not require construction of Rule 15(c)(1)(A) and it did not purport
to definitively engage with it. Rather, it determined that Morel's
holding was based on a determination that Rule 15(c)(1)(C) "applies
in a diversity case notwithstanding the incidence of a more
restrictive state rule" because Rule 15(c) is of a
"quintessentially procedural nature" and compliant with the Rules
Enabling Act. See Morel, 565 F.3d at 24-25 (emphasis added). The
district court reasoned that, because Federal Rule 15(c)(1)(C)
- 50 -
imposes "specific limitations governing when 'an amendment changes
the party or the naming of the party against whom a claim is
asserted'" and Salmon's suit was not premised on diversity
jurisdiction, the federal procedural rule controls. See
Electronic Order, No. 19-cv-11378, Dkt. No. 34. To hold otherwise,
the district court determined, would risk neglecting its "inherent
power" to "bring about uniformity in the federal courts" and
potentially intrude upon the separation of powers embodied in the
Rules Enabling Act. Id. (quoting Hanna v. Plummer, 380 U.S. 460,
472-73 (1965)).
B.
"[I]t is settled beyond hope of contradiction that, at
least in the absence of exceptional circumstances, a party may not
advance new arguments in a motion for reconsideration when such
arguments could and should have been advanced at an earlier stage
of the litigation." Caribbean Mgmt. Grp., 966 F.3d at 45; see
also Coons v. Indus. Knife Co., 620 F.3d 38, 44 (1st Cir. 2010).
Here, Salmon failed to raise any argument involving Rule
15(c)(1)(A) in her original motion to amend. Instead, she
addressed only the "freely given" standard, generally applicable
under Rule 15(a), and the discrete requirement under Federal Rule
15(c)(1)(B)-(C) that limits relation back to new claims arising
out of the same "conduct, transaction, or occurrence set
out . . . in the original pleading." "We have frequently
- 51 -
emphasized that judges are not obligated to do a party's work for
him, 'searching sua sponte for issues that may be lurking in the
penumbra of the motion papers.'" Coons, 620 F.3d at 44 (quoting
United States v. Slade, 980 F.2d 27, 31 (1st Cir. 1992)). "This
is particularly true where, as here, the underdeveloped argument
raises complexities that defy an easy answer." Id.; see, e.g.,
Pessotti v. Eagle Mfg. Co., 946 F.2d 974, 977-78, 980 (1st Cir.
1991) (discussing some of the difficulties that arise when a
federal court is asked to apply Massachusetts relation back
doctrine).
Under these circumstances, we cannot conclude that the
district court abused its discretion in denying Salmon's first
motion or committed a manifest error of law in rejecting her
belated argument on reconsideration. We have not before determined
whether Rule 15(c)(1)(A) displaces Rule 15(c)(1)(C) with less
restrictive state law. Indeed, it does not appear that any federal
court of appeals has. Moreover, even if Massachusetts Rule 15(c)
controlled, it is far from manifest that relation-back would still
be appropriate in Salmon's case. See, e.g., Berman v. Linnane,
748 N.E.2d 466 (Mass. 2001) (explaining that "factors inform[ing]
a decision to permit amendment" include, inter alia, "whether an
honest mistake had been made in selecting the proper party"). In
declining to engage with these issues sua sponte, the district
court acted within its discretion in denying Salmon's motion for
- 52 -
leave. See U.S. ex rel. Ge, 737 F.3d at 128. Its subsequent
denial of Salmon's motion to reconsider was not "plain[ly] and
indisputabl[y]" wrong such that it "amount[ed] to a complete
disregard of the controlling law." See Venegas-Hernandez v.
Sonolux Records, 370 F.3d 183, 195 (1st Cir. 2004) (quoting Black's
Law Dictionary 563 (7th ed. 1999) (Manifest error)); Guy v. Crown
Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004) (applying the same
definition in the evidentiary context). Because Salmon has failed
to clearly establish that the district court committed a manifest
error of law, we find no abuse of discretion in its denial of her
motion under Rule 60. See, e.g., Caribbean Mgmt. Grp., 966 F.3d
at 45 (declining to inquire into merits of new theory for relief
raised for the first time on reconsideration, and holding no abuse
of discretion); Coons, 620 F.3d at 44 (holding that plaintiff
forfeited Rule 15(c)(1)(A) argument by not raising it in opposition
to defendant's post-judgment motion and that it could not "be
'resurrected on appeal'" (internal quotes and cites omitted)).
IV. DISCOVERY RULINGS
Finally, Salmon contends that the defendants effected a
subject-matter waiver over all attorney-client communications and
work product related to the investigation of the November 22
incident by disclosing six attorney-client privileged emails in
response to one of Salmon's discovery requests. On appeal, Salmon
challenges the district court's orders denying her motion to compel
- 53 -
further disclosure on this subject and granting a motion to quash
a subpoena ad testificandum served on the School Committee's
investigating attorney. The defendants argue that disclosure of
these privileged materials was inadvertent and that the district
court appropriately limited waiver to the contents of the
Investigation Report and the attached emails.27 We review
discovery orders for "abuse of [the district court's] considerable
discretion." Wells Real Est. Inv. Tr. II, Inc. v. Chardon/Hato
Rey P'ship, S.E., 615 F.3d 45, 58 (1st Cir. 2010) (quoting Ayala-
Genera v. Bristol Myers-Squibb Co., 95 F.3d 86, 91 (1st Cir. 1996).
Given the trial court's "broad discretion," Ayala-Genera, 95 F.3d
at 91, we will "intervene . . . only upon a clear showing of
manifest injustice, that is, where the [district] court's
discovery order was plainly wrong and resulted in substantial
prejudice to the aggrieved party." Dennis v. Osram Sylvania, Inc.,
549 F.3d 851, 860 (1st Cir. 2008). Here, we find no error.
Federal Rule of Evidence 502 provides that "waiver
extends to an undisclosed [privileged communication or work-
product] . . . only if: (1) the waiver is intentional, (2) the
disclosed and undisclosed communications or information concern
27 Salmon does not appear to contend that the Investigation
Report itself, which was produced, was an attorney-client
privileged communication with waiver implications. She focuses
only on the six unredacted emails attached to a redacted version
of the report.
- 54 -
the same subject matter, and (3) they ought in fairness to be
considered together." Fed. R. Evid. 502(a). The key question is
whether the waiver was intentional. See Bear Republic Brewing Co.
v. Cent. City Brewing Co., 275 F.R.D. 43, 47 (D. Mass. 2011); see
also Fed. R. Evid. 502(a) advisory committee notes ("[A]n
inadvertent disclosure of protected information can never result
in a subject matter waiver."). Moreover, subject-matter waiver is
generally reserved for "situations in which a party intentionally
puts protected information into the litigation in a selective,
misleading and unfair manner." Fed. R. Evid. 502(a) advisory
committee notes.
Here, the record supports a finding that the defendants'
disclosure of the privileged materials was inadvertent. Upon
discovering that the unredacted emails had been disclosed, defense
counsel notified Salmon's counsel of the "inadvertent disclosure"
and requested that the unredacted materials be returned. Salmon
asserts that this disclosure was intentional and selective,
arguing that the defendants "released certain communications
between Lang and the investigators/attorneys to support their
defense that they had adequate justification to discipline Salmon
for non-retaliatory reasons." But Salmon presents no support for
this contention. We find that the court acted well within its
discretion in limiting the scope of waiver to the disclosed
documents and in granting the motion to quash.
- 55 -
V. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment
below.
- 56 -