Maloney v. Aponte et al

Filing 63

Magistrate Judge Katherine A. Robertson: ORDER entered. MEMORANDUM AND ORDER Regarding Defendants' Motion for Summary Judgment. For the reasons stated, Defendants' motion for summary judgment is GRANTED as to both counts of Plaintiff's complaint. (Calderon, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
OWEN D. MALONEY,
Plaintiff,
v.
BOARD OF TRUSTEES OF CLAPP
MEMORIAL LIBRARY, et al.,
Defendants.

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Case No. 14-cv-30054-KAR

MEMORANDUM AND ORDER REGARDING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(Dkt. No. 41)
March 24, 2016
ROBERTSON, U.S.M.J.
I.

Introduction

This case arises out of the March 7, 2011 resignation of the plaintiff, Owen D. Maloney
(“Maloney” or “Plaintiff”), from his employment as Library Director at Clapp Memorial Library
(the “Library”) in Belchertown, Massachusetts (“the Town”). Maloney alleges that he was
constructively discharged in retaliation for a statement he made on a matter of public concern in
violation of his First Amendment right to engage in free speech. By his First Amended
Complaint, Plaintiff has asserted a claim against the Board of Trustees of the Clapp Memorial
Library (the “Board”) and individual Board members Stephen S. Lanphear, Denise A. Smith,
William S. McClure, Kevin Weiss, Christine Walker, and Barbara Sullivan (collectively, the
“individual Defendants”) for violation of his rights under 42 U.S.C. § 1983.1 Plaintiff also

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Maloney originally included the Town and Ronald E. Aponte, Chairman of the Town Board of
Selectman and an ex-officio member of the Board, as defendants. However, he dismissed his

brings a claim against the Board for breach of contract.2 The Defendants have moved for
summary judgment on both counts of Plaintiff’s complaint.
The parties have consented to this court’s jurisdiction (Dkt. No. 32). See 28 U.S.C. §
636(c); Fed. R. Civ. P. 73. For the following reasons, the court allows Defendants’ motion.
II.

Statement of Facts

The Library was incorporated by Chapter 134 of the Massachusetts Acts and Resolves of
1887, “for the purpose of establishing and maintaining a public and social library for the
diffusion of knowledge and to promote intellectual, moral and physical culture” in the Town
(Dkt. No. 11, First Amended Complaint (hereinafter “FAC”) at ¶ 2). The governing board was
to consist of between five and seven members, including the Chairman of the Board of
Selectmen of the Town as a member ex officio. Any vacancies on the Board were to be filled at
such time and in such manner as directed by the corporation. The Town was permitted to
transfer real and personal property to the Library, including yearly disbursements for its expenses
and maintenance.
During the time period relevant to this litigation, the Board was comprised of the six
individual Defendants (FAC at ¶¶ 3-8; Dkt. No. 43, Concise Statement of Undisputed Material
Facts in Support of Defendants’ Motion for Summary Judgment (hereinafter, “CSUMF”) at ¶¶ 38), along with Ronald Aponte, Chairman of the Board of Selectmen of the Town (FAC at ¶ 9;
Dkt. No. 49-6, Affidavit of Owen D. Maloney (hereinafter, “Maloney Aff.”) at ¶ 21). Other than
Aponte, who served ex-officio, all of the members of the Board were elected by the Board and all

action without prejudice as to the Town (Dkt. No. 13), and the parties stipulated to the dismissal
of the action with prejudice as to Aponte (Dkt. No. 37).
2
Maloney also asserted a claim under the Massachusetts Civil Rights Act, Mass. Gen. Laws ch.
12, §§ 11H and 11I, but the parties have stipulated to its dismissal (Dkt. No. 48).
2 

were volunteers (CSUMF at ¶ 11). The Board was responsible for all personnel decisions with
respect to the position of Library Director (CSUMF at ¶ 12). Defendant Lanphear served as the
Board president from 2004 through 2011 (CSUMF at ¶ 13).
Plaintiff was employed as Library Director from March 1, 1989, until April 11, 2011
(CSUMF at ¶¶ 9, 89; Maloney Aff. at ¶ 1). All Library staff, including Plaintiff, were paid by
the Town, received the same pay raises as other Town employees, were subject to the Town
Personnel Handbook, and were participants in the Hampshire County Retirement System in
which all Town employees participated (CSUMF at ¶ 10; Maloney Aff. at ¶ 3).
Library staff reported directly to Plaintiff (Maloney Aff. at ¶ 20). Plaintiff did not believe
every action he took to address patron behavior at the Library required Board approval (Maloney
Aff. at ¶ 19). Defendant Lanphear went to the Library often, typically three to four times per
week (Maloney Aff. at ¶ 17; CSUMF at ¶ 14). He and Plaintiff would discuss operational issues
and, in 2008 and 2009, issues relating to obtaining library expansion grants and matching Town
funds (Maloney Aff. at ¶ 17).
Plaintiff’s last signed employment agreement with the Board is dated July 1, 2005, for the
term commencing on that date and running through June 30, 2008 (the “Employment
Agreement” or the “Agreement”) (CSUMF at ¶¶ 18-19, Maloney Aff. at ¶ 4). The fifth
paragraph of the Employment Agreement is entitled “Performance Review,” and contains three
provisions. The first provides for annual reviews of Plaintiff’s job performance, to occur in June
of each year and to be documented on the Library’s performance review form, with one copy
provided to Plaintiff and one copy placed in his personnel file (CSUMF at ¶ 19). The only
signed written performance review of Plaintiff is from 1997 (CSUMF at ¶ 22). In 2009, the
personnel advisory committee for the Library instructed Plaintiff to use the Town “Evaluation of

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Performance” form to create a draft review, which he did, but it was never acted on or finalized
(CSUMF at ¶ 41; Maloney Aff. at ¶ 11). The second provides for the Board to meet with
Plaintiff six months before the start of each review period to “discuss performance and address
issues and questions which may have developed since the last performance review meeting …. to
ensure that both parties are in close communication so that misunderstandings do not develop
and problems are addressed before they become serious” (CSUMF at ¶ 19). The third and final
review provision states that, “[i]n the event that potentially serious performance problems are
identified during the year, additional meetings may be scheduled in order to resolve them”
(CSUMF at ¶ 19) (emphasis added). It allowed for the possibility of developing new
performance goals, and, should “conditions warrant,” placing Plaintiff on a six month
probationary period (CSUMF at ¶ 19).
The eighth paragraph of the Agreement is entitled “Termination.” It provides in
pertinent part that, “[t]he Board of Trustees may terminate the Agreement and remove the
Library Director if necessary for cause by a 6/7ths vote of the Board after written notice and
hearing” (CSUMF at ¶ 19).
On at least four occasions during Plaintiff’s tenure as Library Director, he utilized
profane language. The first was on September 28, 2007, when Plaintiff attended an annual
meeting of the Friends of the Library (“FOL”) (CSUMF at ¶ 23). After the meeting, Plaintiff
and several members of the FOL, including its president, Wendy Campbell, retired to
McCarthy’s pub. There, Plaintiff and Campbell got into a verbal altercation, during which
Plaintiff stated to Campbell, “Who the fuck do you think you are you sweet bitch?” (CSUMF at
¶¶ 24-28, 31). The Board initiated a formal investigation of the incident (CSUMF at ¶ 32).

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Based on the findings, the Board reprimanded Plaintiff in writing dated November 13, 2007
(CSUMF at ¶ 34; Dkt. No. 49-18).
The three remaining incidents occurred during Plaintiff’s final year of employment. On
June 15, 2010, Plaintiff used the word “fuck” at a Board meeting (CSUMF at ¶ 49). The
following month, on July 9, 2010, Plaintiff attended a prayer vigil for Mickey Brougham, a
resident of the Town who had gone missing (CSUMF at ¶ 50; Maloney Aff. at ¶15). At least 50
to 100 individuals, including children, attended the event on the Town Common (CSUMF at ¶
50; Maloney Aff. at ¶ 15). Attendees were given the opportunity to come up to a microphone
and address the group. Taking up the offer, Plaintiff recounted a time when Brougham used his
backhoe to help dig a grave for Plaintiff’s dog (CSUMF at ¶ 51; Maloney Aff. at ¶ 15). Plaintiff
summed up his words by saying, “He did this for a fucking dog” (CSUMF at ¶ 51). Plaintiff
apologized immediately thereafter and stepped away from the microphone (CSUMF at ¶ 51).
Plaintiff also apologized during the next Board meeting on July 19, 2010, for his use of the word
“fuck” at the previous Board meeting (CSUMF at ¶ 49).
On July 26, 2010, Defendant Lanphear sent a letter to Plaintiff referring to his “use of
profanity at Board meetings such as the one on June 15, 2010 and at public gatherings such as
the prayer vigil for Mickey Brougham on July 9, 2010,” as “unacceptable,” “unprofessional and
inappropriate behavior,” further instances of which could “result in disciplinary action up to and
including termination” (CSUMF at ¶ 56; Dkt. No. 49-20).
Thereafter, on February 18, 2011, Plaintiff, along with four staff members and three
volunteers from the FOL, participated in a project to clean the Library primarily to alleviate
clutter (CSUMF at ¶ 66). Following a 90-minute lunch break during which Plaintiff consumed
at least two beers, Defendant Sullivan arrived to join in the effort (CSUMF at ¶¶ 66, 69).

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Plaintiff took issue with Defendant Sullivan moving a podium from one location to another and
placing a dictionary on it, rather than moving it to the Library basement where he had designated
it to go (CSUMF at ¶ 70). According to Plaintiff, this was the first occasion during his tenure as
Library Director when a Board member had come into the library and given direction to Library
staff that contradicted his (Maloney Aff. at ¶ 20). Thereafter, Plaintiff advised Defendant
Sullivan, “You don’t fucking know anything about libraries;” and “I do not like that Board, they
don’t fucking know what they are doing, they’re archaic.” He also referred to Defendant
Sullivan as a “stupid bitch,” and characterized the Board’s restrictions on the staff’s consumption
of food and drink on-site as “bullshit” (CSUMF at ¶¶ 71-73; Maloney Aff. at ¶ 20). Defendant
Sullivan, for her part, did not direct any swearwords at Plaintiff (CSUMF at ¶ 70). The
following day, Plaintiff sent an email to Defendant Sullivan in which he apologized for his
“unpardonable behavior,” admitted to being “disrespectful, insolent, and rude,” and
acknowledged that his note could not “excuse [his] actions” of the day before (CSUMF at ¶ 74).
On March 1, 2011, the Board met in executive session (CSUMF at ¶ 75). On Aponte’s
motion (Dkt. No. 49-21), the Board voted unanimously to start the termination process with
respect to Plaintiff’s employment (CSUMF at ¶ 75). The decision by the individual Board
members to vote in favor of holding a hearing regarding Plaintiff’s possible termination was
based on Plaintiff’s history of inappropriate behavior and language and his expressed disrespect
for the Board (CSUMF at ¶¶ 77-81). On March 7, 2011, the Board provided Plaintiff with a
written notice of its decision, which stated:
Your history of inappropriate behavior at Board meetings, in
public and most recently directed at a Board member in front of
staff is unacceptable. Your apparent disrespect for the Board
displayed by this behavior on numerous occasions and your
unwillingness to abide by certain policies and directives places the
Board and the Library in a position which can no longer be
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tolerated. At a special meeting of the Board it was their
unanimous decision to start the termination process outlined in the
most recent Employment Agreement dated July 1, 2005. However,
the Board is willing to accept your resignation in the form of an
early retirement. Should you choose early retirement, it appears
that you might be eligible to receive approximately $9,000 in
compensation for unused vacation time, personal time, holidays,
and unused sick time. The Board is also agreeable to payment in
an amount which is equal to your monthly salary for a term of 2
months.
The Board placed Plaintiff on paid administrative leave effective immediately (CSUMF at ¶¶ 8485).
Plaintiff requested a hearing, and, on March 16, 2011, the Board provided Plaintiff with a
written Notice of Hearing on Proposed Termination (“Notice”). The Notice provided:
You are hereby advised that the Board of Trustees of Clapp
Memorial Library has voted to proceed with a hearing on your
proposed termination as Library Director based upon a pattern of
conduct by you that is unacceptable to the Board of Trustees. The
hearing is specifically precipitated by the incident that took place
between you and a Board Trustee on February 18, 2011, which is
the most recent example of a longstanding pattern of conduct by
you that is unacceptable to the Board of Trustees, as more
particularly set forth in, inter alia, letters from the Board of
Trustees to you dated November 13, 2007 and July 26, 2010.
The hearing was scheduled for April 14, 2011 (CSUMF at ¶¶ 87-88). Two weeks before the
hearing was to take place, on March 31, 2011, Plaintiff notified the Board in writing that he was
retiring from the position of Library Director effective April 11, 2011 (CSUMF at ¶ 89).
III.

Discussion
A. Summary Judgment Standard

Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). In the summary judgment context, “[a] factual dispute is ‘genuine’ if ‘it may

7 

reasonably be resolved in favor of either party’ and, therefore, requires the finder of fact to make
‘a choice between the parties’ differing versions of the truth at trial.’” DePoutot v. Raffaelly, 424
F.3d 112, 117 (1st Cir. 2005) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.
1990) (citations and internal quotation marks omitted)). “[A] fact is ‘material’ ‘if its existence or
nonexistence has the potential to change the outcome of the suit.’” Jarvis v. Village Gun Shop,
Inc., 805 F.3d 1, 7 (1st Cir. 2015) (citing Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 4
(1st Cir. 2010)).
A party seeking summary judgment is responsible for identifying those portions of the
record, “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant can meet this burden either by “offering
evidence to disprove an element of the plaintiff’s case or by demonstrating an ‘absence of
evidence to support the non-moving party’s case.’” Rakes v. United States, 352 F. Supp. 2d 47,
52 (D. Mass. 2005) (quoting Celotex, 477 U.S. at 325). If the moving party meets its burden,
“[t]he non-moving party bears the burden of placing at least one material fact into dispute.”
Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir. 1994) (citing Celotex, 477 U.S. at 325). In
ruling on summary judgment, the court “view[s] ‘the entire record in the light most hospitable to
the party opposing summary judgment, indulging all reasonable inferences in that party’s
favor.’” Padilla-García v. Guillermo Rodríguez, 212 F.3d 69, 73 (1st Cir. 2000) (quoting
Euromotion, Inc. v. BMW of N. Am., Inc., 136 F.3d 866, 869 (1st Cir. 1998)).

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B. Plaintiff’s Section 1983 Claim
“‘Section 1983 supplies a private right of action against a person who, under color of
state law, deprives another of rights secured by the Constitution or by federal law.’”3 Santiago v.
Puerto Rico, 655 F.3d 61, 68 (1st Cir. 2011) (quoting Redondo-Borges v. U.S. Dep’t of HUD,
421 F.3d 1, 7 (1st Cir. 2005)). A cause of action under § 1983 is comprised of two essential
elements. First, because § 1983 does not reach private actions, Rodríguez-Garcia v. Dávila, 904
F.2d 90, 95 (1st Cir. 1990), a plaintiff must show “that the conduct complained of transpired
under color of state law.” Santiago, 655 F.3d at 68 (citing Redondo-Borges, 421 F.3d at 7).
Second, because “Section 1983 ‘is not itself a source of substantive rights,’ but merely provides
‘a method for vindicating federal rights elsewhere conferred,’” Albright v. Oliver, 510 U.S. 266,
270 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)), a plaintiff must show
“that a deprivation of federally secured rights ensued.” Santiago, 655 F.3d at 68 (citing
Redondo-Borges, 421 F.3d at 7).
1. “Under Color of State Law”
To satisfy § 1983’s “under color of state law” requirement, the conduct causing the
deprivation of federal rights must either constitute direct state action or be “fairly attributable to
the State.” Rodríguez-Garcia, 904 F.2d at 95 (quoting Lugar v. Edmondson Oil Co., 457 U.S.
922, 937 (1982)). The plaintiff bears the burden of proving state action, whether direct or
indirect.4 Mead v. Indep. Ass’n, 684 F.3d 226, 231 (1st Cir. 2012) (citing Flagg Bros. v. Brooks,

3

Specifically, § 1983 provides that “[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States … to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceeding for redress ….” 42 U.S.C. § 1983.
4
“In cases under § 1983, ‘under color’ of law has consistently been treated as the same thing as
the ‘state action’ required under the Fourteenth Amendment.” Barrios-Velazquez v. Asociación
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436 U.S. 149, 156 (1978)). If the plaintiff fails to make a showing sufficient to establish the
existence of state action, the constitutional claim will not survive summary judgment. Santiago,
655 F.3d at 68 (citing Rendell-Baker, 457 U.S. at 838).
a. Direct State Action
The term “‘state action’ … includes action not only by states, but also by their political
subdivisions (e.g., cities and towns).” Perkins v. Londonderry Basketball Club, 196 F.3d 13, 18
n.3 (1st Cir. 1999) (citing Avery v. Midland Cty., 390 U.S. 474, 479-80 (1968); and Mendez v.
Belton, 739 F.2d 15, 18 n.1 (1st Cir. 1984)). Plaintiff properly does not claim that the Board is
an arm of the Town government such that its actions constitute direct state action. But that
observation alone does not end the inquiry. The “actions of private entities can sometimes be
regarded as governmental action for constitutional purposes.” Lebron v. Nat’l R.R. Passenger
Corp., 513 U.S. 374, 378 (1995) (citing S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483
U.S. 522, 546 (1987); Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); Moose Lodge No. 107 v.
Irvis, 407 U.S. 163, 172 (1972)). “Lebron is the leading case on the question of whether a
nominally private organization is a government entity for constitutional purposes.” Richards v.
City of Lowell, 472 F. Supp. 2d 51, 71 (D. Mass. 2007). In Lebron, the Court held that the
National Railroad Passenger Corporation (“Amtrak”) was a government actor for purposes of
determining the First Amendment rights of citizens affected by its actions, despite its
congressional designation as a private organization. Id., 513 U.S. at 392. Key to the Lebron
Court’s holding was “the degree of control that the federal government had over Amtrak,”

de Empleados del Estado Libre Asociado de P.R., 84 F.3d 487, 491 (1st Cir. 1996) (quoting
Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)). “The ultimate issue in determining whether a
person is subject to suit under § 1983 is the same question posed in cases arising under the
Fourteenth Amendment: is the alleged infringement of federal rights ‘fairly attributable to the
State?’” Id. (quoting Lugar, 457 U.S. at 937).
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Barrios-Velazquez, 84 F.3d at 492, as reflected in the composition of its board, of which eight of
nine external directors were federal government appointees who directed the federallyestablished corporation “for the very purpose of pursuing federal governmental objectives,”
Lebron, 513 U.S. at 398. The Court summed up its rationale by stating that, where “the
Government creates a corporation by special law, for the furtherance of governmental objectives,
and retains for itself permanent authority to appoint a majority of the directors of that
corporation, the corporation is part of the Government for purposes of the First Amendment.”
Id. at 400.
Lower courts have relied on the Lebron standard to determine whether town libraries
qualify as direct state actors under § 1983. In Horvath v. Westport Library Ass’n, 362 F.3d 147
(2d Cir. 2004), the Second Circuit held that the defendant library was a state actor for purposes
of a former employee’s § 1983 claim and reversed the district court’s entry of summary
judgment in favor of the library. Id. at 153-54. The court reasoned that the first two elements of
Lebron were easily met: the Connecticut legislature created the library by special act, and “the
provision of library services is a legitimate statutory objective.” Horvath, 362 F.3d at 153. As to
the third element, while the town did not retain the authority to appoint a majority of the library’s
governing body as in Lebron, it did appoint half of that body’s members. Id. In addition, the
town supplied nearly 90% of the library’s funding. Id. The combination of control of one-half
of the library’s governing board and pervasive public funding “convince[d] [the court] that the
Town maintain[ed] sufficient control over the Library to qualify it as a state actor for purposes of
[the plaintiff’s] claim.” Id. at 153-54.
In Richardson v. Hartford Public Library, 969 F. Supp. 2d 237 (D. Conn. 2013), the
court reached a contrary conclusion, holding that the defendant library was not a state actor for

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purposes of an unsuccessful job applicant’s § 1983 claims and granted summary judgment to the
library on those claims. Id. at 244. Specifically, the court found that the third element of Lebron
was not satisfied where the governing board of the library consisted of 17 directors, of whom one
was the mayor ex officio, three were appointed by the city, one was appointed by the board of
education, and twelve were elected by the library’s corporators (all of whom, in turn, were
appointed by the library’s governing board). Id. at 239-40, 244. Because the city accounted for
only five of the seventeen-member board, considerably less than a majority as in Lebron or even
one-half as in Horvath, the court concluded that the city did not maintain sufficient control over
the library to qualify it as a direct state actor for constitutional purposes. Id. at 244. Additional
facts pressed by the plaintiff, including that the library received over 80% of its funding from the
city, that library employees participated in the city’s medical insurance and pension benefit
plans, and that the city’s job openings website included a link to job openings at the library, did
not alter the result. Id. at 240-41, 244.
In the instant case, Plaintiff has failed to create a triable issue of fact as to whether the
Board was a direct state actor when it initiated termination proceedings against Plaintiff. While
the Library was created by special law and the provision of library services “for the diffusion of
knowledge and to promote intellectual, moral and physical culture” in the Town constitutes a
legitimate governmental objective, the Town does not maintain sufficient control over the Board
to treat it as part of the Town for constitutional purposes. The chair of the Town Board of
Selectman is the only member of the seven-person Board who is a state actor. The remainder are
volunteers chosen not by the Town, but by the other members of the Board. One member out of
seven does not support a finding of Town control of the Board sufficient to satisfy Lebron. The
additional fact that the Library receives ninety-five percent of its funding from the Town does

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not create a triable issue in the absence of Town authority to appoint at least half of the Library’s
governing body. See Horvath, 362 F.3d at 152 (holding that the defendant library was not a
“state actor by virtue of public funding alone,” where it received over 80% of its funds from the
town, but only in combination with town control of one-half of the library’s governing body).
Nor do any of the other facts Plaintiff presses, including that Plaintiff and other Library
employees were paid by the Town, received the same pay raises as other Town employees, were
subject to the Town Personnel Handbook, and were participants in the Hampshire County
Retirement System, that Plaintiff was instructed to use a Town Evaluation of Performance Form
to draft a self-evaluation, or that the job description the Board utilized to find Plaintiff’s
replacement was captioned “Town of Belchertown.” (Dkt. No. 49 at p. 4). None of these facts
are material to the issue of Town control of the Board. See Richardson, 969 F. Supp. 2d at 24041, 244 (holding that the plaintiff failed to create a triable issue as to whether the defendant
library was a direct state actor where the library received 80% of its funding from the city,
library employees participated in the city’s medical insurance and pension benefit plans, and the
city’s job openings website included a link to job openings at the library). Cf. BarriosVelazquez, 84 F.3d at 490 and n.1 (holding that the Asociación de Empleados del Estado Libre
Asociado de Puerto Rico (“AEELA”) was not a state actor for purposes of a § 1983 action by its
members and affirming dismissal where, while the entity was created by state law, the
Commonwealth of Puerto Rico did not have the power to appoint any of its directors, and despite
the additional facts that membership in the AEELA was mandatory for all Commonwealth
employees as was a 3% payroll deduction to fund its operations, that the AEELA’s directors
often worked on government time using government facilities and equipment, that the AEELA’s
employees participated in the Commonwealth’s pension plan, and that all of the AEELA’s

13 

members and directors were government employees). Accordingly, the Board’s actions do not
constitute direct state action.
b. Indirect State Action
Plaintiff’s § 1983 claim still could survive summary judgment based on a demonstration
of indirect state action. The Court has observed that no “simple” line separates “state action
subject to [constitutional] scrutiny and private conduct (however exceptionable) that is not.”
Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001) (citing Nat’l
Collegiate Athletic Ass’n. v. Tarkanian, 488 U.S. 179, 191 (1988); and Jackson v. Metro. Edison
Co., 419 U.S. 345, 349 (1974)). For seemingly private behavior to qualify as state action, there
must exist “such a ‘close nexus between the State and the challenged action’ that [it] ‘may be
fairly treated as that of the State itself.’” Id. (footnote omitted) (quoting Jackson, 419 U.S. at
351). However, “[w]hat is fairly attributable is a matter of normative judgment, and the criteria
lack rigid simplicity.” Id. “[N]o one fact can function as a necessary condition across the board
for finding state action; nor is any set of circumstances absolutely sufficient ….” Id. (citing
Tarkanian, 488 U.S. at 193, 196; and Polk Cty. v. Dodson, 454 U.S. 312 (1981)). See also
Gonzalez-Maldonado v. MMM Healthcare, Inc., 693 F.3d 244, 247 (1st Cir. 2012) (noting that
the “conditions delineated in a number of Supreme Court decisions over the years are not easily
reduced to a single formula”). Notwithstanding the lack of a precise formula, the Court has
identified certain categories in which “acts by a nominally private entity may comprise state
action – e.g., if, with respect to the activity at issue, the private entity is engaged in a traditionally
exclusive public function; is ‘entwined’ with the government; is subject to governmental
coercion or encouragement; or is willingly engaged in a joint action with the government.”
Logiodice v. Trs. of Me. Cent. Inst., 296 F.3d 22, 26 (1st Cir. 2002) (citing Brentwood, 531 U.S.

14 

at 295-96). See also Hogan v. Bombardier, No. 13-cv-30190-MAP, 2014 WL 4966088, at *3
(D. Mass. Sept. 30, 2014) (“The First Circuit has identified several tests for determining
‘whether a private party fairly can be characterized as a state actor,’” including “the public
function test, the ‘entwinement’ test, the state compulsion test, and the nexus/joint action test.”
(citing Logiodice, 296 F.3d at 26)). “It is ‘[o]nly in rare circumstances’ [however,] that private
parties can be viewed as state actors.” Estades-Negroni v. CPC Hosp. San Juan Capestrano, 412
F.3d 1, 4 (1st Cir. 2005) (first alteration in original) (quoting Harvey v. Harvey, 949 F.2d 1127,
1130 (11th Cir. 1992)). “If the facts, viewed most hospitably to the plaintiff, make out a jury
question as to any one of these alternatives … the ‘under color of state law’ requirement is
satisfied for summary judgment purposes.” Santiago, 655 F.3d at 69.
Plaintiff relies on the entwinement doctrine. Pursuant to the entwinement doctrine,
“‘public entwinement in the management and control’ of a private entity can create a basis for
state action, but the requisite entwinement exists only when government actors manage or
exercise control over a nominally private entity.” Gonzalez-Maldonado, 693 F.3d at 248
(quoting Brentwood, 531 U.S. at 297 (emphasis added)). In Brentwood, the Court held that the
defendant, a non-profit association that regulated interscholastic high school athletic competition,
was a state actor based on its entwinement with the state of Tennessee. The Court “stressed two
points: that the membership of the association was comprised overwhelmingly (84 percent) of
‘public schools represented by their officials acting in their official capacity to provide an
integral element of secondary public schooling,’ and that in substance the association (replacing
previous state school board regulation) set binding athletic standards for state schools, including
the recruiting standards at issue in the case.” Logiodice, 296 F.3d at 28 (first quoting Brentwood,
531 U.S. at 299–300; and then citing id. at 300–01).

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In the instant case, Plaintiff has presented no evidence that the Town managed or
controlled the Library. There is no evidence of Town control of the day-to-day affairs of the
Library. To the contrary, the only supported inference is that it was Plaintiff who was in control
of the Library’s day-to-day affairs. Library staff reported to Plaintiff. Plaintiff did not believe
that every action on his part to address the behavior of Library patrons required Board approval.
In Plaintiff’s over two decade career as Library Director, the only instance he could recall in
which a member of the Board came into the Library and gave the staff direction that contradicted
his was on February 18, 2011, and the countermand came from Defendant Sullivan, who was not
a state actor. Defendant Lanphear in his capacity as president and a member of the Board came
to the Library often to discuss operational issues with Plaintiff, but, again, Defendant Lanphear
was not a state actor. There is no evidence that Aponte, the one state actor on the Board who
Plaintiff voluntarily dismissed from this action, or any other Town official, had any involvement
whatsoever in the management or control of the Library.
Moreover, the Board was responsible for all personnel decisions with respect to
Plaintiff’s position as Library Director. The only Town involvement in the actions leading up to
Plaintiff’s resignation consisted of Aponte moving for a vote and voting in favor of providing
Plaintiff notice and a hearing on his proposed termination and being present when Plaintiff was
provided the notice. The non-municipal actors on the Board also voted in favor of proceeding
with Plaintiff’s termination, and there is no evidence that Aponte or any other Town official
controlled their votes. In addition, in order to actually terminate Plaintiff’s employment, the
Agreement required a vote by six of the seven members in favor of termination following a
hearing. Aponte, the one state actor on the Board, did not have the power to singlehandedly
terminate Plaintiff’s employment even after a hearing.

16 

Thus, this case is more akin to Logiodice than Brentwood. In Logiodice, the defendant
was a private high school in a § 1983 suit brought by a student claiming that the school had
violated his constitutional rights when it disciplined him. Id., 296 F.3d at 24-25. The First
Circuit affirmed the district court’s grant of summary judgment in favor of the school, holding
that the school was not a state actor pursuant to the entwinement doctrine where the school was
run by private trustees and not public officials, and the trustees had sole control over student
discipline. Id. at 32. Of note, two of the trustees were public officials. Id. Given the lack of
evidence that the state was intertwined in the management and control of the school, the
additional facts pressed by the plaintiff that the state sponsored about 80% of the defendant’s
students and contributed about half of its budget, did not change the analysis. Id. at 28.
Similarly, in this case, in the absence of facts demonstrating that the Town was intertwined in the
management and control of the Library’s day-to-day affairs or its personnel decisions, the
Board’s internal management decision to proceed with Plaintiff’s termination cannot constitute
state action under the entwinement doctrine, even in light of the Town’s providing 95% of the
Library’s funding.
Plaintiff does not invoke any of the other tests for state action and with good reason, as he
does not fare better under any of them. “Under the public function test, state action inheres ‘in
the exercise by a private entity of powers traditionally exclusively reserved to the State.”
Santiago, 655 F.3d at 69 (citing Jackson, 419 U.S. at 352) (emphasis added)). Operation of a
library is not such an exclusive function. Horvath, 362 F.3d at 152 (citing Hollenbaugh v.
Carnegie Free Library, 545 F.2d 382, 383 (3d Cir. 1976)).
“Under the state compulsion test, a private party is fairly characterized as a state actor
when the state ‘has exercised coercive power or has provided such significant encouragement,

17 

either overt or covert, that the [challenged conduct] must in law be deemed to be that of the
State.’” Estades-Negroni, 412 F.3d at 5 (alteration in original) (quoting Blum, 457 U.S. at 1004).
The “inquiry is a targeted one, with the challenged conduct at the hub of the analytical wheel.”
Santiago, 655 F.3d at 71 (quoting Perkins, 196 F.3d at 19). Plaintiff has not presented any
evidence that Aponte or any other Town official coerced or significantly encouraged the
individual Defendants to vote in favor of initiating termination proceedings against Plaintiff.
Finally, under the nexus/joint action test, “a private party can be held to be a state actor
where an examination of the totality of the circumstances reveals that the state has ‘so far
insinuated itself into a position of interdependence with the [private party] that it was a joint
participant in [the challenged activity].’” Estades-Negroni, 412 F.3d at 5 (alterations in original)
(quoting Bass v. Parkwood Hosp., 180 F.3d 234, 242 (5th Cir. 1999) (internal quotation marks
omitted) (first alteration in original)). “The ‘most salient’ factor in this determination ‘is the
extent to which the private entity is (or is not) independent in the conduct of its day-to-day
affairs.’” Santiago, 655 F.3d at 71 (quoting Perkins, 196 F.3d at 21). As discussed above in
connection with the entwinement test, there are no facts in the summary judgment record
showing Town involvement in the day-to-day affairs of the Library. The Library’s receipt of
public funds alone is insufficient to establish the requisite interdependence. Estades-Negroni,
412 F.3d at 6 (citing Rockwell v. Cape Cod Hosp., 26 F.3d 254, 258 (1st Cir. 1994)).
Because no rational factfinder could conclude that Defendants acted under color of state
law, Plaintiff’s constitutional claim necessarily fails, and Defendants are entitled to summary
judgment on it.

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2. Deprivation of a Federally Protected Right
Given the absence of state action, the court need not reach the second element of a §1983
claim, deprivation of a federally protected right. Nevertheless, the court proceeds with the
analysis because it provides a separate and additional basis for granting summary judgment in
favor of Defendants to the extent they could be considered state actors.
The substance of Plaintiff’s constitutional claim is that the Defendants violated his First
Amendment rights by retaliating against him for protected speech. “Claims of retaliation for the
exercise of First Amendment rights are cognizable under § 1983.” Powell v. Alexander, 391
F.3d 1, 16 (1st Cir. 2004) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274
(1977)). To prove a First Amendment retaliation claim, a public employee must make three
showings. First, he must have been “speaking ‘as a citizen on a matter of public concern.’”
Díaz-Bigio v. Santini, 652 F.3d 45, 51 (1st Cir. 2011) (quoting Garcetti v. Ceballos, 547 U.S.
410, 418 (2006)). “Second, under the balancing test of Pickering v. Board of Education, 391
U.S. 563, 568 (1968), [his] First Amendment interests in the speech must ‘outweigh the
government’s interests as an employer in avoiding disruption in the workplace.’” Id. (quoting
Rivera-Jiménez v. Pierluisi, 362 F.3d 87, 94 (1st Cir. 2004)). Third, he “must meet the ‘burden
of producing sufficient … evidence from which a jury reasonably may infer that his
constitutionally protected conduct … was a “substantial” or “motivating” factor behind his
dismissal.’” Id. at 51-52 (second alteration in original) (quoting Acevedo-Diaz v. Aponte, 1 F.3d
62, 67 (1st Cir. 1993)). A defendant may still avoid liability by proving that it “would have
taken the same action against the employee ‘even in the absence of the protected conduct.’” Id.
at 52 (quoting Mt. Healthy, 429 U.S. at 287).

19 

Plaintiffs can bring § 1983 suits against municipalities and other local government units,
which are considered “persons” under § 1983, as well as against individual public officials, who
can be named in their personal and official capacities. Monell v. New York City Dept. of Social
Servs., 436 U.S. 658, 690 (1978). Official-capacity suits simply “represent … another way of
pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham, 473
U.S. 159, 165-66 (1985) (quoting Monell, 436 U.S. at 690 n.55). “[A]n official-capacity suit is,
in all respects other than name, to be treated as a suit against the entity.” Id. at 166 (citing
Brandon v. Holt, 469 U.S. 464, 471-72 (1985)). See also O’Connor v. Spain, 84 F. Supp. 3d 60,
67 (D. Mass. 2015) (“A claim against a town official in his official capacity is ‘merely a claim
against the Town.’” (quoting Doe v. Bradshaw, No. 11-11593-DPW, 2013 WL 5236110, at *4
n.4 (D. Mass. Sept. 16, 2013))). In contrast, “[p]ersonal-capacity suits seek to impose personal
liability upon a government official for actions he takes under color of state law.” Id. at 165
(citing Scheuer v. Rhodes, 416 U.S. 232, 237-38 (1974)).
“Under § 1983, municipalities can be liable for constitutional violations only if the
violation occurs pursuant to an official policy or custom.” Welch v. Ciampa, 542 F.3d 927, 941
(1st Cir. 2008) (citing Monell, 436 U.S. at 694). Individual liability for § 1983 does not require
proof of an official policy or custom; the culpability of individual public officials “must be
gauged in terms of their own actions.” Id. at 936 (quoting Rogan v. Menino, 175 F.3d 75, 77 (1st
Cir. 1999)). “While the plaintiff in a personal-capacity suit need not establish a connection to
governmental ‘policy or custom,’ officials sued in their personal capacities, unlike those sued in
their official capacities, may assert personal immunity defenses such as objectively reasonable
reliance on existing law.” Hafer v. Melo, 502 U.S. 21, 25 (1991) (citing Graham, 473 U.S. at
166–67). The Defendants in this case are the Board and all of its members other than Aponte.

20 

Plaintiff does not specify whether he is suing the individual Defendants in their official
capacities, personal capacities, or both. Notwithstanding this lack of clarity, the Board and the
individual Defendants – in both their official and personal capacities – are entitled to summary
judgment on Plaintiff’s § 1983 claim.
With respect to the Board and the individual Defendants to the extent named in their
official capacities, there is no evidence that any of the individual trustees acted in accordance
with a Town policy or custom of terminating employees for the exercise of their right to free
speech protected by the First Amendment when they voted in favor of initiating termination
proceedings against Plaintiff. Without a policy or custom, there can be no municipal liability.
Monell, 436 U.S. at 694; Welch, 542 F.3d at 941. Therefore, the Board and the individual
Defendants to the extent named in their official capacities are entitled to summary judgment.
The individual Defendants likewise are entitled to summary judgment to the extent
named in their individual capacities pursuant to the doctrine of qualified immunity. The
qualified immunity defense “gives government officials breathing room to make reasonable but
mistaken judgments about open legal questions.” Ashcroft v. Al-Kidd, 563 U.S. 731, —, 131 S.
Ct. 2074, 2085 (2011). “It provides ‘immunity from suit and not a mere defense to liability.’”
Díaz-Bigio, 652 F.3d at 50 (quoting Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir. 2009)).
So long as a public official’s conduct “does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known,” he or she is shielded from
liability for civil damages. Id. (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).
Qualified immunity “protects ‘all but the plainly incompetent or those who knowingly violate the
law.’” al-Kidd, 131 S. Ct. at 2085 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). A right
is clearly established and immunity will not issue only if “every ‘reasonable official would have

21 

understood that what he is doing violates that right.’” Id. at 2083 (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)).
In the First Amendment context, the First Circuit has observed that because the Pickering
balancing of interests is “‘subtle, … difficult to apply, and not yet well defined,’ … only in the
extraordinary case will it have been clearly established that a public employee’s speech merited
constitutional protection.’” Díaz-Bigio, 652 F.3d at 53 (quoting Jordan v. Carter, 428 F.3d 67,
75 (1st Cir. 2005)). See also Fabiano v. Hopkins, 352 F.3d 447, 457 (1st Cir. 2003) (“‘Because
Pickering’s constitutional rule turns upon a fact-intensive balancing test, it can rarely be
considered “clearly established”’ for purposes of qualified immunity.” (quoting O’Connor v.
Steeves, 994 F.2d 905, 917 n.11 (1st Cir. 1993)); O’Connor, 84 F. Supp. 3d at 66 (“The legal
contours of the First Amendment rights of a public employee are, for better or worse, inherently
murky.”).
“The facts of this case do not present the sort of unusual circumstances that would
support the finding of a clearly established right notwithstanding Pickering.” Fabiano, 352 F.3d
at 457-58. During the final year of Plaintiff’s employment, there were three separate incidents in
which he used profane language, including his use of the word “fuck” at the June 15, 2010 Board
meeting, his statement that, “He did this for a fucking dog,” at the July 9, 2010 prayer vigil, and
his February 18, 2011 confrontation with Defendant Sullivan, which included the use of multiple
expletives and denigration of the Board. It was only after the final, particularly egregious
incident involving Defendant Sullivan – by which time Plaintiff had been warned in writing that
further instances of inappropriate language and behavior could result in disciplinary action
including termination – that the Board voted to initiate termination proceedings. Reasonable
board members could have found these incidents supportive of the view that Plaintiff’s

22 

employment could be terminated without violating his First Amendment rights. Decotiis, 635
F.3d at 48 (holding that regardless of whether defendant did in fact violate plaintiff’s First
Amendment rights, which was yet to be determined, defendant was entitled to qualified
immunity because a reasonable person in defendant’s position could have believed there was no
violation). Employers have “wide discretion and control over the management of [their]
personnel and internal affairs … includ[ing] the prerogative to remove employees whose conduct
hinders efficient operation and to do so with dispatch,” Díaz-Bigio, 652 F.3d at 53 (quoting
Connick v. Myers, 461 U.S. 138, 151 (1983)), and a well-established legitimate interest in
maintaining discipline. Id. Accordingly, even if the individual Defendants were state actors,
they would be entitled to summary judgment in their favor on Plaintiff’s § 1983 claim based on
the defense of qualified immunity.
3. Breach of Contract
Plaintiff also claims that the Board constructively discharged him in breach of the 2005
Employment Agreement (Dkt. No. 11 at ¶ 37; Dkt. No. 49 at p. 16). Plaintiff’s theory is that the
Board’s failure to comply with the performance review provisions of the Agreement deprived
him of “adequate notice of the issues that would result in termination and a reasonable
opportunity to comply with the Board’s expectations” (Dkt. No. 11 at ¶ 37). Plaintiff professes
to have understood that “the performance reviews would be linked to [his] continued
employment at the library as per the … Agreement,” and “would guide [him] in … improving
[his] job performance” (Maloney Aff. at ¶ 6). Plaintiff asserts that the “potential value of
performance reviews include [sic] potential for continued employment, retirement and health
care” (Dkt. No. 49, at p. 18).

23 

Defendants have assumed for purposes of summary judgment that the 2005 Employment
Agreement was renewed under its same terms based on the conduct of the parties and was
operative on the dates relevant to Plaintiff’s claim (Dkt. No. 42 at p. 13; Dkt. No. 50 at p. 9).
Defendants do not dispute that the Board did not provide Plaintiff with annual written
performance reviews. Nonetheless, the court concludes that the Board is entitled to summary
judgment on Plaintiff’s breach of contract claim.
“‘An employee discharged in breach of contract may ... sue as for a total breach, and
recover the earnings which would have accrued to the employee for the full term of the contract,
subject to be reduced by any earnings which the defendant shows that the plaintiff earned, or
could have earned, in other employment.’” Maddaloni v. W. Mass. Bus Lines, Inc., 422 N.E.2d
1379, 1387 (Mass. App. Ct. 1981) (quoting McCormick, Damages § 158(b) (1935)). However,
the interpretation of the Agreement Plaintiff advances to support his claim that he was
constructively discharged in breach of his employment agreement is untenable. “The
interpretation of a written contract’s terms is a question of law, not fact, and is susceptible to
determination at summary judgment.” Derrig v. Wal-Mart Stores, Inc., 942 F. Supp. 49, 53 (D.
Mass. 1996) (citing Lexington Ins. Co. v. All Regions Chem. Labs, Inc., 647 N.E.2d 399, 400
(Mass. 1995)). The termination provision in the Agreement clearly contemplates the Board’s
right to terminate Plaintiff’s employment for cause after notice and a hearing. The Agreement
does not make the Board’s compliance with the performance review provisions a condition
precedent to the Board’s exercise of its for cause termination power. Thus, the court concludes
as a matter of law that the Board had the ability under the Agreement to terminate Plaintiff’s
employment for cause notwithstanding its admitted failure to conduct annual written
performance reviews.

24 

Termination for cause encompasses “failure to conform to usual standards of conduct, or
other culpable or inappropriate behavior.” Klein v. President & Fellows of Harvard Coll., 517
N.E.2d 167, 169 (Mass. App. Ct. 1987). “[W]hether a termination was for good cause
commonly presents a question for the jury.” York v. Zurich Scudder Invs., Inc., 849 N.E.2d 892,
900 (Mass. App. Ct. 2006) (citing Goldhor v. Hampshire Coll., 521 N.E.2d 1381, 1385 (Mass.
App. Ct. 1988)). However, when there is no basis in the record for a jury to infer that a
termination was not for good cause, summary judgement is appropriate. Id. Here, there is no
room for a jury to infer that Maloney’s termination was for anything other than his failure to
conform to the usual standards of conduct and his inappropriate behavior, including, most
egregiously, the February 18, 2011, incident during which Plaintiff repeatedly swore at
Defendant Sullivan while she was in the Library on Library business and denigrated the entire
Board. Accordingly, because there is no basis for a jury to infer an absence of good cause,
summary judgment is appropriate.
Moreover, even if the contract could be interpreted as tying compliance with the
performance review provisions to the Board’s ability to terminate Plaintiff for cause as Plaintiff
suggests, the record does not support an inference that compliance would have changed the
outcome. Plaintiff received written notice and the opportunity for corrective action in the form
of the letter from Lanphear in June 2010, the very month during which his review was to have
taken place. In the letter, Lanphear advised Plaintiff that the use of expletives at Board meetings
and in public gatherings was “unacceptable,” “unprofessional and inappropriate behavior,” and
that further incidents could result in disciplinary action up to and including termination. This
letter preceded Plaintiff’s February 18, 2011, outburst at Defendant Sullivan and warned him
against the precise form of misconduct that precipitated the initiation of termination proceedings.

25 

It seems Plaintiff could prove that the Board breached the requirement in the Agreement
that it provide annual written performance reviews. However, Plaintiff’s breach of contract
claim is for alleged constructive discharge in breach of the Agreement, not for breach of the
performance review provisions standing alone. Even if Plaintiff had advanced a claim solely on
the basis of the Board’s breach of the performance review provisions, however, he would be
entitled only to damages “that are ‘the equivalent in money for the actual loss [he] sustained,’”
Salvas v. Wal-Mart Stores, Inc., 893 N.E.2d 1187, 1217 (Mass. 2008) (quoting F.A. Bartlett Tree
Expert Co. v. Hartney, 32 N.E.2d 237, 240 (Mass. 1941)), if any, as a result of the Board’s
failure to provide him with the reviews. Such an award would be de minimis.
IV.

Conclusion

For the reasons stated, Defendants’ motion for summary judgment is GRANTED as to
both counts of Plaintiff’s complaint.
It is so ordered.
/s/ Katherine A. Robertson____
KATHERINE A. ROBERTSON
United States Magistrate Judge

26