Alston v. Town of Brookline, MA

2021 | Cited 0 times | First Circuit | February 19, 2021

United States Court of Appeals For the First Circuit

No. 20-1434


Plaintiff, Appellant,



Defendant, Appellee.


[Hon. George A. O'Toole, Jr., U.S. District Judge] [Hon. M. Page Kelley, U.S. Magistrate Judge]


Lynch and Selya, Circuit Judges, and Laplante,* District Judge.

Brooks A. Ames, with whom Brookline Justice League was on brief, for appellant. Naomi R. Shatz, with whom Martin R. Rosenthal, David Duncan, and Zalkind Duncan & Bernstein LLP were on brief, for appellee.

February 19, 2021

* Of the District of New Hampshire, sitting by designation.

SELYA, Circuit Judge. Plaintiff-appellant Gerald Alston

filed this civil rights action alleging violations of 42 U.S.C.

§§ 1981, 1983, and 1985. The operative pleading — his second

amended complaint (the SAC) — named as defendants the Town of

Brookline, Massachusetts (the Town), the Brookline Board of

Selectmen (the Board), certain members of the Board, the Town's

counsel and human resources director, Local 950, International

Association of Firefighters (the Union), and Stanley Spiegel (a

Town Meeting member). Alston, a former Town firefighter who is

black, alleges that the defendants discriminated against him on

the basis of race; retaliated against him for exercising his First

Amendment rights; and conspired to enforce the Town's policy of

opposing racial equality, favoring white residents and employees,

and retaliating against those who oppose the Town's views.

After Alston had filed his second amended complaint, the

district court dismissed with prejudice his claims against

Spiegel. See Alston v. Town of Brookline, No. 15-13987, 2017 WL

3387132 , at *4-6 (D. Mass. Aug. 7, 2017). In serial orders, the

district court later granted summary judgment in favor of the

remaining defendants. See Alston v. Town of Brookline, No. 15-

13987, 2020 WL 1649915 (D. Mass. Apr. 2, 2020) (addressing motions

by the Town, the Board, and the remaining individual defendants);

Alston v. Town of Brookline, No. 15-13987, 2020 WL 1615408 (D.

Mass. Apr. 2, 2020) (addressing the Union's motion).

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Alston appealed from all of these adverse orders. For

ease in exposition, we have carved his appeal into discrete

segments. In this opinion, we address Alston's appeal only insofar

as it relates to the district court's dismissal of his claims

against Spiegel.1 We conclude that the allegations against Spiegel

fail to state a claim upon which relief can be granted and,

therefore, affirm the order of dismissal. We retain appellate

jurisdiction over all other aspects of his appeal.


We briefly rehearse the relevant allegations of the SAC,

accepting as true the well-pleaded facts. See Santiago v. Puerto

Rico, 655 F.3d 61 , 72 (1st Cir. 2011). We then limn the travel of

the case.

Alston is a black firefighter who began working for the

Brookline Fire Department (the Department) in 2002. On May 30,

2010, Paul Pender, a lieutenant in the Department, left a voicemail

on Alston's telephone in which he used a racial slur when referring

to Alston. Alston reported the lieutenant's comment to the

Department's chief operating officer, but the Department took no

corrective action. The Department did, however, communicate to

Pender that Alston had reported the incident. Pender responded by

1 Because Alston's claims against the other appellees raise distinct issues, we will decide them in separate and subsequent opinions. See, e.g., United States v. Santiago-Rivera, 744 F.3d 229 , 231 n.1 (1st Cir. 2014).

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telling Alston that reporting him "was the stupidest thing [Alston]

could have ever done."

Alston alleges that the Board, the entity responsible

for hiring, firing, and disciplining the Town's firefighters,

failed to take appropriate action. Instead of disciplining Pender

for his racist comment, the Board protected and rewarded the

lieutenant. Alston asserts that, since the 2010 incident, the

Town and other defendants, as well as the Department, have punished

him in various ways, including the stonewalling of his complaints,

insufficiently investigating those complaints, covering up the

truth, encouraging the ostracization of Alston by other

firefighters, denying him promotions, and constantly harassing

him. These punitive actions allegedly continued even after Alston

filed suit in state court and complained to the Massachusetts

Commission Against Discrimination.

In the fall of 2013, the Boston Globe reported on

Alston's state-court suit. At that point, Alston says, the Town

increased its efforts to discredit his claims and force him out of

the Department on a pretextual basis.

Against this backdrop, we introduce the appellee.

Spiegel is an elected Town Meeting member and an appointed member

of the Advisory Committee.2 Alston alleges that Spiegel has

The record offers little information about the status of 2

Town Meeting members, but the district court took judicial notice

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frequent contact with the Board and that (until Alston sued him)

he acted as an "unofficial surrogate" for the Board.

According to the SAC, Spiegel distributed a "letter to

the editor," by email, to members of the Town Meeting on September

19, 2013. The letter, authored by a retired black fire lieutenant,

had been passed out at a public meeting the day before by

Selectwoman Nancy Daly. It attacked Alston's credibility and cast

him in a negative light. In the same email, though, Spiegel

directed Town Meeting members to a quote from Selectwoman Daly

taken from that day's local newspaper in which she cautioned

against a rush to judgment before the remainder of the facts

relevant to Alston's complaint could be made public. Spiegel

echoed Daly's sentiments about reserving judgment and noted only

that the letter provided some "additional insight."

Alston further alleges that, in early 2014, the Town

arranged for a psychiatrist to deem Alston "unfit for duty" and

placed him on unpaid leave with the intent to terminate his

employment. In December of that year, Alston's case received wider

publicity in the media. Thereafter, Alston says, the Town

of the fact that the Town has 240 Town Meeting members. See Alston, 2017 WL 3387132 , at *3 n.5. So, too, the record is murky as to the precise nature and function of the "Advisory Committee." It indicates, though, that the Advisory Committee is linked in some way to the Town's governmental structure and that one of its roles is to approve financial settlement agreements to which the Town is a party. Such agreements may settle "claims for racial discrimination."

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retaliated against him by giving Spiegel access to Alston's

personnel file. Spiegel is alleged to have told several people

gathered in the Board's public meeting room that he had such access

as a result of his position as a Town Meeting member. He is also

alleged to have told a woman who was wearing an "I support Gerald

Alston" sticker that she would not support Alston if she knew the

real story contained in his personnel file. In this conversation,

Spiegel allegedly represented to the Alston supporter that he was

speaking on behalf of the Town.

Additionally, Spiegel claimed (falsely, according to the

SAC) that two black firefighters had told him that they did not

support Alston. When questioned about his statements, Spiegel

allegedly grew extremely agitated and put his face close to the

supporter's face and raised his voice. The conversation ended

when Spiegel shouted, "I'm disgusted," and left the room.

On February 13, 2015, Alston was placed on paid

administrative leave. He asserts that despite the Selectmen's

publicly conciliatory stance toward him, "they tacitly encouraged

their unofficial surrogates, including advisory committee member

and town meeting member, Stanley Spiegel to smear Mr. Alston and

undermine public support for him." Just over a year later — on

February 16, 2016 — the Board terminated Alston's paid

administrative leave. Alston was formally dismissed from his

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firefighter position by unanimous vote of the Board on October 5,


Alston filed suit in the federal district court roughly

ten months before his formal discharge. Two months later, he filed

an amended complaint, adding seven other plaintiffs. Various

defendants filed motions to dismiss, which the district court

referred to a magistrate judge. See Fed. R. Civ. P. 73(a). As

relevant here, the magistrate judge recommended dismissing

Alston's claims against Spiegel with prejudice for failure to state

a claim. See Fed. R. Civ. P. 12(b)(6). Alston objected to this

recommendation. The district court overruled his objection,

except that the court dismissed Alston's claims against Spiegel

without prejudice, thus allowing Alston to attempt to re-plead

those claims. Alston proceeded to file the SAC in an effort, inter

alia, to rejuvenate his claims against Spiegel. Once again,

Spiegel moved to dismiss, and the district court referred his

motion to the magistrate judge. The magistrate judge found that

the factual allegations as to Spiegel were essentially the same as

in the previously dismissed complaint, except for a few "minimal"

changes, and again recommended dismissal with prejudice for

failure to state a claim. Alston, 2017 WL 3387132 , at *5. Alston

objected to this recommendation but, in April of 2017, the district

court adopted the recommendation and dismissed Alston's claims

against Spiegel with prejudice. A hiatus ensued, during which the

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district court disposed of Alston's remaining claims against the

other defendants. This timely appeal followed.


We afford de novo review to a district court's order

granting a motion to dismiss for failure to state a claim. See

Santiago, 655 F.3d at 72 . The district court's rationale is not

binding upon us, and we may affirm an order of dismissal on any

ground made manifest by the record. See id. (citing Román-Cancel

v. United States, 613 F.3d 37 , 41 (1st Cir. 2010)).

When reviewing the grant of such a motion, "we accept as

true all well-pleaded facts alleged in the complaint and draw all

reasonable inferences therefrom in the pleader's favor." Id. Even

so, we need not credit a plaintiff's "[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory

statements." Ashcroft v. Iqbal, 556 U.S. 662 , 678 (2009). At

bottom, a complaint will survive a motion to dismiss when it

alleges "enough facts to state a claim to relief that is plausible

on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 570

(2007). A claim is plausible when the factual content adumbrated

in the complaint permits a reasonable inference that the defendant

is liable. See Iqbal, 556 U.S. at 678 . "If the factual allegations

in the complaint are too meager, vague, or conclusory to remove

the possibility of relief from the realm of mere conjecture,"

dismissal is proper. SEC v. Tambone, 597 F.3d 436 , 442 (1st Cir.

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2010); see Iqbal, 556 U.S. at 678 ("Where a complaint pleads facts

that are merely consistent with a defendant's liability, it stops

short of the line between possibility and plausibility of

entitlement to relief." (internal quotations omitted)).

With these parameters in place, we zero in on Alston's

claims against Spiegel. Generally, Alston alleges that the Town

has "a policy, practice, and custom of opposing racial equality,

enforcing racial subordination, engaging in affirmative action and

favoritism towards white residents and employees, and retaliating

against persons who protest racial discrimination." With specific

reference to Spiegel, Alston pleads violations of 42 U.S.C.

§§ 1981, 1983, and 1985 for "enforcing the Town's unconstitutional

policy, practice, and custom," for retaliating against Alston for

protesting the Town's "policy, practice, and custom," and for

"discriminating against [Alston] on the basis of race." Relatedly,

Alston pleads that Spiegel acted under color of law and violated

clearly established law. We examine these plaints one by one.

A. Section 1981.

As relevant here, section 1981 affords relief when

racial discrimination precludes a plaintiff from entering a

contractual relationship or when racial discrimination impairs a

plaintiff's existing contractual relationship. See Domino's

Pizza, Inc. v. McDonald, 546 U.S. 470 , 476 (2006). The text of

section 1981 provides in relevant part that "[a]ll persons within

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the jurisdiction of the United States shall have the same right in

every State and Territory to make and enforce contracts . . . as

is enjoyed by white citizens." 42 U.S.C. § 1981(a). The

prophylaxis of section 1981 also extends to discriminatory

dismissals, see Domino's Pizza, 546 U.S. at 477 , and "prohibits

not only racial discrimination but also retaliation against those

who oppose [such discrimination]," Univ. of Tex. Sw. Med. Ctr. v.

Nassar, 570 U.S. 338 , 355 (2013) (citing CBOCS W., Inc. v.

Humphries, 553 U.S. 442 , 445 (2008)). To state a discrimination

claim under section 1981, a plaintiff must show that he is a member

of a racial minority, that the defendant discriminated against him

on the basis of his race, and that the discrimination implicated

the right to make and enforce contracts. See Hammond v. Kmart

Corp., 733 F.3d 360 , 362 (1st Cir. 2013).

As a preliminary matter, "[a]ny claim brought under

§ 1981 . . . must initially identify an impaired 'contractual

relationship,' under which the plaintiff has rights." Domino's

Pizza, 546 U.S. at 476 (quoting 42 U.S.C. § 1981(b)). The only

identifiable contract that can be gleaned from the SAC is Alston's

employment relationship with the Town. Although Alston does not

specifically mention this contract in framing his allegations

against Spiegel, we will infer (favorably to Alston) that his

employment contract is the relevant contract for purposes of his

section 1981 claim. Thus — to make out his discrimination claim

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— Alston must plausibly allege that Spiegel's conduct was motivated

by race and impaired Alston's employment relationship. Similarly

— to make out his retaliation claim — Alston must plausibly allege

that Spiegel's impairment of Alston's contractual relationship was

as a result of Alston's opposition to the Town's racial

discrimination. See Hammond, 733 F.3d at 362 .

We begin with Alston's race discrimination claim. One

insurmountable obstacle that blocks this claim is that the SAC

never alleges that Spiegel's conduct was motivated by Alston's

race. Nothing in the SAC suggests that Spiegel considered Alston's

race either when deciding to distribute the letter or when

confronting Alston supporters. Nor does the SAC include any

allegation of racial animus on Spiegel's part. In the absence of

such allegations, Alston has utterly failed to make out a claim

for racial discrimination under section 1981. See Fantini v. Salem

State Coll., 557 F.3d 22 , 33-34 (1st Cir. 2009).

Alston's race discrimination claim runs headlong into a

second — and equally insurmountable — obstacle: the SAC does not

allege that Spiegel's conduct impaired Alston's employment

relationship with the Town in any way. Alston does not allege,

for instance, that Spiegel was his employer, that Spiegel had any

influence on the terms and conditions of his employment, or that

Spiegel had any role in the enforcement of his contract. In fact,

the SAC contains nothing to connect Spiegel either to the contract

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as a whole or to any particular provision in it. To the contrary,

the SAC alleges that the employment relationship between the Town's

firefighters and the Town is enforced through the Board. According

to the SAC, the Selectmen are the "ultimate decision-makers with

respect to the hiring, firing, promotion, demotion, and

discipline" of the firefighters. Spiegel is not alleged to be a

member of the Board and — based on the SAC's allegations — there

is no principled way in which we can infer that Spiegel's conduct

resulted in the Board's termination of Alston's employment.

None of this should be a surprise to Alston. Spiegel

stressed the lack of connectivity between his actions and Alston's

employment in motions to dismiss the various iterations of Alston's

complaint, and the magistrate judge twice found this argument

persuasive. See Alston, 2017 WL 3387132 , at *4-6. In an apparent

effort to plug this hole, the SAC alleges that "Spiegel has

frequent contact with the Board of Selectmen, both formally and

informally," and that "until named as a defendant in this

lawsuit[,] [Spiegel] acted as an unofficial surrogate for the Board

of Selectmen." But neither of these allegations can sustain a

reasonable inference that Spiegel's actions had a detrimental

effect on Alston's employment with the Town. The SAC does not

describe the nature of the "frequent contact" and does not include

any factual matter suggesting that the contact between Spiegel and

the Board concerned Alston's employment.

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Even when taken in the light most favorable to Alston,

the allegations that Spiegel disseminated a letter casting Alston

in a negative light and confronted an Alston supporter, in

combination with the allegations that Spiegel has had contact with

the Selectmen, do not make out a plausible claim for discriminatory

interference with Alston's employment contract. So, too, the

conclusory allegation that Spiegel was an "unofficial surrogate"

for the Board is wholly devoid of factual support and is,

therefore, insubstantial. Aponte-Torres v. Univ. of P.R., 445

F.3d 50 , 55 (1st Cir. 2006) (explaining that a court, when passing

upon a motion to dismiss, should not "credit bald assertions,

unsupportable conclusions, periphrastic circumlocutions, and the

like" (internal quotations omitted)). We thus hold — as did the

district court — that Alston failed to plead an actionable section

1981 race discrimination claim.

Given this holding, we need not linger long over Alston's

section 1981 retaliation claim. To establish such a claim, a

plaintiff must show that he undertook protected conduct, that he

experienced an adverse employment action, and that the latter was

causally connected to the former. See Pina v. Children's Place,

740 F.3d 785 , 800-01 (1st Cir. 2014). On a motion to dismiss, "we

must determine whether, as to each defendant, a plaintiff's

pleadings are sufficient to state a claim on which relief can be

granted." Sanchez v. Pereira-Castillo, 590 F.3d 31 , 48 (1st Cir.

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2009) (emphasis in original). Accordingly, Alston must plausibly

allege Spiegel's role in the adverse employment action (in this

case, his dismissal). See Ocasio-Hernández v. Fortuño-Burset, 640

F.3d 1 , 16 (1st Cir. 2011) ("[E]ach defendant's role in the

termination decision must be sufficiently alleged to make him or

her a plausible defendant."); Peñalbert-Rosa v. Fortuño-Burset,

631 F.3d 592 , 594 (1st Cir. 2011) ("[S]ave under special

conditions, an adequate complaint must include not only a plausible

claim but also a plausible defendant."). Here — as we already

have pointed out — the SAC fails to link Spiegel to the Board's

termination of Alston's employment and, thus, fails to state a

claim for retaliation under section 1981.

In his reply brief, Alston seems to argue that Spiegel's

comments to the Alston supporter themselves constituted

retaliation "because they publicly broadcast the fact that

Brookline had provided Spiegel with access to derogatory

information in Alston's personnel file."3 But these allegations

do not make out a retaliation claim under section 1981 because

they do not connect Spiegel to any injury to Alston's contractual

relationship with the Town. Section 1981 is not a full suit of

3We note, in passing, that Alston never distinguishes between the allegations that go to his section 1981 retaliation claim and those that go to his section 1985 retaliation claim. He generally describes Spiegel's conduct as "retaliation," eschewing any further amplification.

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armor — a "strange remedial provision designed to fight racial

animus in all of its noxious forms." Domino's Pizza, 546 U.S. at

476 . Rather, it is a bulletproof vest, designed specifically to

safeguard contractual relationships. See id. at 476-77 (concluding that Congress "positively reinforced" the contractual-

obligation element of section 1981 claims). So whether or not

Spiegel's comments were retaliatory in the ordinary sense, they

were not retaliatory within the purview of a statute designed to

protect contractual relationships from racial discrimination.

That completes this phase of our inquiry. With respect

to section 1981, the SAC — though prolix — is notable more for

what it does not say than for what it says. Pertinently, it does

not allege that Spiegel's conduct was racially motivated, that

Spiegel ever interacted with Alston, that Spiegel had even the

slightest authority over Alston's employment, or that Spiegel had

any involvement in any action that impacted Alston's employment.

Although section 1981 may require more — a matter on which we take

no view — these deficiencies alone make it evident that the

district court did not err in dismissing Alston's section 1981

claims against Spiegel.

B. Section 1983.

"Section 1983 is a vehicle through which individuals may

sue certain persons for depriving them of federally assured rights"

under color of state law. Gagliardi v. Sullivan, 513 F.3d 301 ,

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306 (1st Cir. 2008). To state a claim under section 1983, Alston

must plead that he was deprived of a constitutional or federal

right, that a causal connection existed between Spiegel's action

and the deprivation of that right, and that Spiegel's actions

constituted state action. See Sanchez, 590 F.3d at 41 ; Gagliardi,

513 F.3d at 306 . To this end, Alston alleges that Spiegel

discriminated against him on the basis of race and that Spiegel

retaliated against him for exercising his First Amendment rights

in protesting the Town's racial discrimination.

We start with Alston's claim of racial discrimination.

We note, though, that the SAC does not explicitly invoke any

particular constitutional provision in relation to Spiegel's

conduct. However, the SAC does invoke the Equal Protection Clause,

U.S. Const. amend. XIV, § 1, with respect to Alston's parallel

allegations concerning the Town's alleged discriminatory conduct.

Since Alston gives us no other choice, we assume that his

allegations of race discrimination against Spiegel likewise seek

to vindicate his perceived rights under the Equal Protection


To establish an equal protection claim, Alston must

allege facts indicating that, compared with others similarly

situated, he was selectively treated based on an impermissible

consideration (in this case, race). See Barrington Cove Ltd.

P'ship v. R.I. Hous. & Mortg. Fin. Corp., 246 F.3d 1 , 7 (1st Cir.

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2001). Alston has failed to satisfy this requirement. As

previously discussed, see supra Part II(A), the SAC stumbles on

the lowest rung of the ladder because it is bereft of any factual

allegations suggesting that Spiegel distributed the letter and

confronted Alston's supporters as a result of Alston's race. There

was, therefore, no plausible way for the district court to conclude

that Spiegel's treatment of Alston was based on impermissible

criteria. See id.

As to this issue, there is a second (and equally

dispositive) flaw in the SAC. Alston's race discrimination claim

is implausible because it fails to identify anyone who was

"similarly situated" to Alston. None of the allegations directed

against Spiegel describe Spiegel's conduct toward other

firefighters (let alone firefighters involved in employment

disputes and litigation, like Alston). This inadequacy, in and of

itself, suffices to validate the dismissal of Alston's section

1983 race discrimination claim. See Mulero-Carrillo v. Román-

Hernández, 790 F.3d 99 , 105-06 (1st Cir. 2015).

We are left with Alston's section 1983 claim of

retaliation for his exercise of First Amendment rights. See U.S.

Const. amend. I. To state such a claim, the SAC must show that

Alston's speech was protected under the First Amendment (so as to

shield him from adverse employment action in retaliation for such

speech) and that Alston suffered an adverse employment action

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caused by Spiegel. See Gagliardi, 513 F.3d at 306 . Alston must

also show "that the protected expression was a substantial or

motivating factor in the adverse employment decision." Curran v.

Cousins, 509 F.3d 36 , 45 (1st Cir. 2007).

"[T]he 'adverse employment action' inquiry in the

section 1983 context focuses on whether an employer's acts, viewed

objectively, place substantial pressure on the employee's

political views." Barton v. Clancy, 632 F.3d 9 , 29 (1st Cir. 2011)

(quoting Bergeron v. Cabral, 560 F.3d 1 , 8 (1st Cir. 2009)). This

inquiry looks to "whether the defendants' acts would have a

chilling effect on the employee's exercise of First Amendment

rights." Id. As such, the "pertinent question" here is whether

Spiegel's actions constituted the kind of action that "would deter

'a reasonably hardy individual[]' from exercising his

constitutional rights." Id. (quoting Agosto-de-Feliciano v. Aponte–Roque, 889 F.2d 1209 , 1217 (1st Cir. 1989) (en banc)).

Measured against this framework, Alston's allegations

fall short of stating a plausible First Amendment retaliation claim

under section 1983. It is fanciful to think that Spiegel's

distribution of a letter and his confrontation of two Alston

supporters would deter a reasonable person from exercising his

First Amendment rights against his employer. These activities

cannot, therefore, comprise an adverse employment action. We add

only a few words of explanation.

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To begin, the SAC alleges that the letter — which

attacked Alston's credibility — was neither drafted nor published

by Spiegel. It was written by another firefighter and had already

been "distributed at a public meeting the day before" by

Selectwoman Daly. What is more, Spiegel's email forwarding the

letter was addressed to fellow Town Meeting members, not to Alston,

or to persons alleged to have any connection to Alston. And in

the email, Spiegel specifically warned against "rush[ing] to

judgment." Alston never alleges how he came across this email.

More importantly, he never alleges that he knew about this email

when considering whether to continue to pursue his grievances

against his employer. There is, therefore, no factual plinth upon

which to rest a claim that Spiegel's unoriginal letter, presented

to people unrelated to Alston with a warning not to rush to

judgment, communicated to Alston that his exercise of his First

Amendment rights spelled trouble and should cease.

Alston's allegations concerning Spiegel's interactions

with the Alston supporter and others are equally impuissant. The

SAC alleges that over a year after Spiegel sent the email, he

berated an Alston supporter — not Alston himself — and falsely

claimed in front of that Alston supporter and others that two black

firefighters were not supportive of Alston. Here, too, the SAC

lacks any factual allegations sufficient to establish how an event

that did not take place in Alston's presence came to his attention.

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Nor does the SAC allege how conduct that might or might not have

been intimidating to the supporter wound up intimidating Alston


In an effort to blunt the force of this reasoning, Alston

argues that Spiegel's conduct, as described in the SAC, amounts to

an implied threat to disseminate injurious information about

Alston and is, therefore, the kind of conduct that would chill an

employee's speech. In support, Alston relies almost exclusively

on the decision in Ray v. Ropes & Gray LLP, 961 F. Supp. 2d 344 (D. Mass. 2013). His reliance is mislaid.

In Ray, the plaintiff alleged that he was discriminated

and retaliated against by his employer, a law firm, on the basis

of his race. See id. at 350. He filed a charge with the Equal

Employment Opportunity Commission (EEOC) alleging as much. See

id. at 351. The EEOC initially found no reasonable cause to

believe that Ray's employer had discriminated or retaliated

against him. See id. at 352. But on further consideration, the

EEOC changed course and concluded that, while the evidence in fact

did not support a finding of discrimination, there was probable

cause to believe that the defendant had retaliated against Ray for

filing the charge. See id.

Ray then mailed the EEOC's finding to a number of people,

including Dean Martha Minow of Harvard Law School. See id. A

legal online publication learned of Ray's contact with Dean Minow

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and reached out to the defendant for comment. See id. In response,

the defendant handed Ray's EEOC determination letter to the

website, and the website then posted it online. See id. The

letter contained "a recitation of evidence, including detailed

information about Ray's performance reviews and a description of

the internal investigation of Ray and his reprimand by the firm

for alleged criminal misconduct with a subordinate." Id. The

district court concluded that "[t]he threat of dissemination of

derogatory private information, even if true, would likely deter

any reasonable employee from pursuing a complaint against his

employer." Id. at 360. Ray does not advance Alston's cause. For one thing,

Spiegel was neither Alston's employer nor a person alleged to be

acting in the employer's stead. For another thing, even assuming

that Alston was aware of Spiegel's conduct, the SAC does not allege

that injurious information would come to light at Spiegel's

direction; nor does it allege what that information might concern.

This is in marked contrast to Ray, in which the released

information was described as "severely damaging information." Id.

And the final nail in the coffin is that Alston does not allege

that Spiegel ever threatened to disseminate information extracted

from Alston's personnel file. The only conduct alleged is Spiegel

telling the Alston supporter that "she would not support Mr. Alston

if she knew the 'real story' contained in Mr. Alston's personnel

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file." Nothing in this statement allows us to infer that Spiegel

communicated to Alston that he would spread detrimental

information about Alston to others.

To sum up, we do not gainsay that a campaign of

harassment may give rise to a First Amendment claim under section

1983. See Barton, 632 F.3d at 29 ; Bart v. Telford, 677 F.2d 622 ,

625 (7th Cir. 1982). Here, however, the two seemingly independent

events proffered by Alston in support of his First Amendment claim

occurred over a year apart; and neither event is alleged to have

been effectively communicated to Alston. Nor does the SAC allege

that Spiegel had any contact at all with Alston (personal or

professional) or that Alston even knew who Spiegel was. One

swallow does not a summer make, and the two unconnected events

described in the SAC cannot plausibly be characterized as a

campaign of harassment sufficient to chill the speech of a

"reasonably hardy individual[]." Agosto-de-Feliciano, 889 F.2d at

1217 .

Let us be perfectly clear. We recognize that "[a]

traditional employment relationship is not a prerequisite to a

First Amendment retaliation claim." Barton, 632 F.3d at 28 . But

when — as in this case — the allegations essentially amount to a

distant critic bad-mouthing or dissembling about an individual

behind his back twice over the course of a year, the complaint

lacks sufficient allegations of the degree of pressure on the

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individual's views needed to state a plausible First Amendment

retaliation claim. See id. at 29; cf. McKee v. Hart, 436 F.3d

165 , 173 (3d Cir. 2006) ("Courts 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))); Coszalter v. City of Salem, 320 F.3d 968 , 976 (9th

Cir. 2003) ("[W]hen an employer's response includes only minor

acts, such as 'bad-mouthing,' that cannot reasonably be expected

to deter protected speech, such acts do not violate an employee's

First Amendment rights."). We therefore conclude that the SAC

fails to allege the kind of conduct that would dissuade a

reasonable person from exercising his First Amendment right to

free speech. It follows inexorably that the district court did

not err in dismissing Alston's section 1983 retaliation claim.

C. Section 1985.

Section 1985 provides a remedy for acts of civil

conspiracy in which two or more individuals conspire for the

purpose of depriving another of rights or privileges accorded to

them by law. See 42 U.S.C. § 1985(3). To plead an actionable

claim under this statute, Alston must allege the existence of a

conspiracy, allege that the purpose of the conspiracy is "to

deprive the plaintiff of the equal protection of the laws,"

describe at least one overt act in furtherance of the conspiracy,

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and "show either injury to person or property, or a deprivation of

a constitutionally protected right." Pérez-Sánchez v. Pub. Bldg.

Auth., 531 F.3d 104 , 107 (1st Cir. 2008). On this score, Alston

never gets out of the starting gate; the SAC fails to allege,

either directly or inferentially, that any conspiracy existed.

Refined to bare essence, a conspiracy is a "combination

of two or more persons acting in concert to commit an unlawful

act." Earle v. Benoit, 850 F.2d 836 , 844 (1st Cir. 1988). A civil

rights conspiracy, though, must have certain other features. To

plead such a conspiracy, a plaintiff "must plausibly allege facts

indicating an agreement among the conspirators to deprive the

plaintiff of h[is] civil rights." Parker v. Landry, 935 F.3d 9 ,

18 (1st Cir. 2019). When direct evidence of such an agreement is

unavailable, "the plaintiff must plead plausible factual

allegations sufficient to support a reasonable inference that such

an agreement was made." Id.; see Earle, 850 F.2d at 843 . Where,

as here, a complaint aspires to allege a conspiracy in violation

of section 1985(3), it must "elaborate[] []or substantiate[] [any]

bald claims that certain defendants 'conspired' with one another."

Slotnick v. Garfinkle, 632 F.2d 163 , 166 (1st Cir. 1980); see

Francis-Sobel v. Univ. of Me., 597 F.2d 15 , 17 (1st Cir. 1979)

(requiring "at least minimum factual support of the existence of

a conspiracy"). Vague and conclusory allegations about persons

working together, with scant specifics as to the nature of their

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joint effort or the formation of their agreement, will not suffice

to defeat a motion to dismiss. See Parker, 935 F.3d at 18 .

In the case at hand, those are precisely the kind of

allegations that Alston offers. He concedes that the SAC does not

allege an express agreement but, rather, argues that an agreement

can be inferred from "Spiegel and Daly's distribution of the same

letter criticizing Alston in 2013 and from Spiegel's self-reported

knowledge of the contents of Alston's personnel file in 2014."

Inferences, though, are not infinitely elastic, and these

allegations are manifestly insufficient to make out an agreement.

Were the law otherwise, the plausibility standard would be reduced

to mere rhetoric.

Once again, what the SAC does not say is enlightening.

Alston does not allege any contact or conversation between Spiegel

and Daly, nor does he allege any agreement between them even

minimally related to him (let alone to the deprivation of his

rights). The SAC does not even allege that Spiegel received the

much-bruited letter from Daly. It tells us only that Daly

distributed the letter at a public meeting, without including any

information as to whether Spiegel was even in attendance. Although

it may be within the realm of possibility that Daly and Spiegel

collaborated to circulate the letter, nothing in the SAC's factual

allegations permit a reasonable inference to that effect. A

pleader is entitled to have reasonable inferences drawn in his

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favor, but he is not entitled to the benefit of speculation

unanchored to sufficiently supportive facts. See Peñalbert-Rosa,

631 F.3d at 596 .

The same sort of deficiency dulls the force of the

allegation that Spiegel had access to Alston's personnel file.

The SAC alleges that the Town provided Spiegel access to that file,

and nothing more. It does not identify Daly (or any person for

that matter) as having collaborated with Spiegel in this endeavor.

And even when viewed through the most forgiving lens, the SAC

cannot plausibly be read to suggest that Spiegel and anyone else

were acting in concert. After all, the SAC contains no factual

allegations from which to infer that Spiegel and any other person

reached a common understanding of what they were hoping to achieve.

Because the SAC fails to plead any factual support for the

existence of a conspiracy, the district court's dismissal of

Alston's section 1985 claims was unimpugnable. See Francis-Sobel,

597 F.2d at 17 .


We need go no further. For aught that appears, Spiegel

was at most a peripheral player in the evolving saga of Alston's

difficulties with the Town, the Board, and the Department. Alston

has had three opportunities to plead his claims against Spiegel,

and he has come up empty. There simply are no facts pleaded in

the SAC sufficient to ground a reasonable inference that Spiegel

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is liable to Alston for any of the wrongs alleged. Put bluntly,

the facts set forth are too meager to lift Alston's claims over

the threshold of conjecture. We therefore affirm the judgment of

the district court dismissing Alston's claims. We retain appellate

jurisdiction over Alston's appeal insofar as it relates to his

claims against other defendants.

So Ordered.

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