United States Court of Appeals For the First Circuit

No. 21-1281

Deon Fincher,

Plaintiff, Appellant,

v.

Town of Brookline,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Kayatta, Lipez, and Gelpí, Circuit Judges.

Brooks A. Ames, with whom Brookline Justice League was on brief, for appellant. Joseph A. Padolsky, with whom Patricia Correa and Douglas I. Louison were on brief, for appellee.

February 18, 2022 GELPÍ, Circuit Judge. Plaintiff-Appellant Deon Fincher

("Fincher") appeals the district court's grant of summary judgment

to Defendant-Appellee, the Town of Brookline, Massachusetts ("the

Town" or "Brookline") on his claim pursuant to

for discrimination on the basis of race in violation of the Equal

Protection Clause of the Fourteenth Amendment. We conclude that

the grant of summary judgment was proper and correspondingly affirm

the decision of the district court.

I. Background

A. Facts

We begin by summarizing the relevant facts related to

Fincher's employment with the Town. Fincher was employed by

Brookline in the Department of Public Works ("DPW") beginning in

September of 2009 when he was hired as a Laborer. The Town

described the Laborer job as a nonskilled, entry-level position

within the DPW. There are five divisions within the DPW:

Administration, Engineering and Transportation, Highway and

Sanitation, Parks and Open Space, and Water and Sewer. Fincher's

employment at all relevant times was within the Highway and

Sanitation Division. He worked in Sanitation for most of his

employment with the Town. During his employment, Fincher was one

of only two Black employees in the Highway and Sanitation Division,

out of approximately seventy total employees.

- 2 - The Sanitation division's primary role is to collect

garbage and other waste from fixed routes in Brookline. The

Laborer position required the ability to lift and move items

weighing up to 100 pounds, although the need to lift items that

heavy was infrequent. Laborers were, as a matter of course,

required to lift thirty to fifty pounds easily. In order to

advance within the Sanitation division, it was necessary to obtain

a Commercial Driver's License ("CDL"), which allowed employees to

drive large trucks, such as the garbage truck, also called a packer

truck. Each packer truck had a driver paired with a "packer" on

the back of the truck. The packer's job was to pick up barrels

and throw trash into the truck along the route, while the driver

drove the truck and assisted the packer in throwing trash when

possible. Though Motor Equipment Operator-2s ("MEO-2s") were

primarily assigned as packers, Laborers were assigned to the packer

position as needed when MEO-2s were not available because the

division was short-staffed or the MEO-2s were needed elsewhere.

Fincher did not have a CDL while working for the Town

and did not attempt to obtain one. Therefore, he remained

classified as a Laborer throughout his period of employment. It

was generally understood that the Laborer position required

"[s]trenuous physical effort" and it was advertised as such.

Fincher suffered a series of work-related injuries to

his right shoulder while working as a Laborer within the Sanitation

- 3 - division, caused by repeatedly throwing heavy barrels of trash.

On November 30, 2009, he injured his right shoulder and went on

worker's compensation leave effective December 1, 2009. An

Occupational Health Nurse at New England Baptist Hospital1

("Baptist Health") cleared him to return to work without

restrictions on July 13, 2010. On May 31, 2011, he again injured

his right shoulder while working. Following an evaluation at

Baptist Health, his Occupational Health Nurse recommended that he

return to work with restrictions on April 2, 2012. The recommended

restrictions included not lifting over fifty pounds and limiting

such work to six hours per day. Fincher returned to work

temporarily and was given less strenuous tasks, such as sweeping

and cleaning the yard.

On April 6, 2012, Andrew Pappastergion, the Commissioner

of Public Works for the Town, informed Fincher via letter that he

was being placed on short-term leave as the Town was unable to

accommodate a six-hour workday and a long-term leave was not a

reasonable accommodation. Effective May 21, 2012, Baptist Health

approved Fincher to return to work without restrictions. A few

months later, on November 13, 2012, Fincher returned to Baptist

Health for continued pain in his right shoulder, caused by

repeatedly picking up trash barrels. Baptist Health recommended

All Brookline employees were evaluated for work-related 1

injuries at the New England Baptist Hospital.

- 4 - that he return to work with restrictions, and Fincher was

instructed to alternate work tasks to avoid repetitive lifting and

throwing with his right arm.

Fincher visited Baptist Health on March 1, 2013, again

complaining of pain in his right shoulder. He was allowed to

return to work with one week of restrictions that limited his

lifting, pushing, and pulling capacity to no more than thirty

pounds. On March 22, 2013, he returned to Baptist Health and was

given another restriction prohibiting him from lifting more than

thirty pounds for the next seven to ten days. However, Fincher

never returned to work for the Town and instead went out on

worker's compensation leave again. On July 26, 2013, Fincher was

again evaluated at Baptist Health. At that appointment, Fincher

was given work restrictions that were characterized as "likely

permanent for the foreseeable future." These restrictions limited

Fincher to lifting, pushing, and pulling weight up to thirty pounds

with his right arm, and limited him throwing trash to three to

four days per week.

On June 4, 2014, Fincher applied to the Brookline

Retirement Board for accidental disability retirement benefits

based on his continuing shoulder injuries. In his application,

Fincher stated that he was no longer able to perform the essential

duties of a Laborer due to the injury to his right shoulder. His

application was accompanied by a doctor's report which recommended

- 5 - that he limit pushing, pulling, and lifting with his dominant arm

to weights of fifteen pounds or less, limit reaching overhead, and

take required periods of rest several days a week.

On June 27, 2014, Commissioner Pappastergion sent

Fincher a letter requesting that he attend a meeting to determine

whether he could continue performing his job duties with a

reasonable accommodation. Fincher's attorney responded by letter

that Fincher had a pending application for accidental disability

retirement benefits and therefore the meeting would not be

necessary.

On April 7, 2015, Commissioner Pappastergion sent

Fincher another letter requesting that he attend a reasonable

accommodation meeting. The meeting was rescheduled various times

until it eventually took place on May 12, 2015. Following the

meeting, on that same day, Commissioner Pappastergion sent Fincher

a letter terminating his employment effective May 13, 2015 because

he found that Fincher was no longer able to perform the essential

functions of his job, with or without a reasonable accommodation.

On October 18, 2016, Fincher's accidental disability retirement

benefits were approved and issued with a retroactive retirement

date of April 9, 2015 -- prior to his effective termination.

B. Procedural History

Fincher brought this action in the District of

Massachusetts on May 9, 2018, alleging a single cause of action:

- 6 - that Brookline violated his Fourteenth Amendment equal protection

rights, and the harm he suffered entitled him to seek relief from

the Town pursuant to

. The Town moved for summary

judgment, and the district court granted the motion. This appeal

followed.

II. Discussion

Fincher claims that the Town's repeated refusal to

accommodate his disability-related work restrictions -- despite

accommodating the work restrictions of other, white employees --

was motivated by racial animus in violation of the Fourteenth

Amendment. According to Fincher, his termination was merely the

final act in a long series of racially motivated non-accommodative

behavior. The Town objects to Fincher's allegations of racial

discrimination, and also argues that the only potentially

actionable event within the statute of limitations is Fincher's

May 2015 termination.

We first discuss whether Fincher's challenges to the

Town's pre-termination actions are barred by the statute of

limitations and to what extent we can consider those actions. We

then consider whether the Town violated Fincher's rights under the

Equal Protection Clause by singling him out for disparate

treatment. We note at the outset that Fincher did not bring a

claim under either Title VII of the Civil Rights Act of 1964, 42

- 7 - U.S.C. § 2000e et seq. ("Title VII") or the Americans with

Disabilities Act of 1990,

et seq. ("ADA").

A. Standard of Review

We review a district court's grant of summary judgment

de novo, "drawing all reasonable inferences in favor of the

nonmoving party," Fincher. Kuperman v. Wrenn,

(1st Cir. 2011). Summary judgment is proper if the movant, the

Town, "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).

B. Section 1983 Claim and Statute of Limitations

Fincher's claim was properly brought pursuant to

, which allows individuals to "sue certain persons

for depriving them of federally assured rights" under color of

state law. See Gagliardi v. Sullivan,

(1st Cir.

2008). The Town of Brookline as a municipal defendant is

considered a person under § 1983. See Rodríguez v. Municipality

of San Juan,

, 172 n.2 (1st Cir. 2011) (citing Monell

v. Dep't of Soc. Servs.,

(1978)). Therefore, it

"may be held liable under § 1983 for actions taken pursuant to an

official policy or an official custom that violated the

Constitution." See Walden v. City of Providence,

, 55

(1st Cir. 2010) (citing Monell,

). One way in which

a plaintiff can establish an official policy or custom is by

- 8 - showing that "a person with final policymaking authority" caused

the alleged constitutional injury. Rodríguez,

(quoting Welch v. Ciampa,

(1st Cir. 2008)). A

plaintiff may also show an "unconstitutional municipal

custom . . . so well settled and widespread that the policymaking

officials of the municipality can be said to have either actual or

constructive knowledge of it yet did nothing to end the practice."

Bordanaro v. McLeod,

(1st Cir. 1989).

The basis for § 1983 liability does not seem to be

seriously disputed by the parties, so we need not delve deeply

into it. Here, Fincher's treatment by the Town and his eventual

termination form the basis of his § 1983 claim. Commissioner

Pappastergion, as Commissioner of Public Works, supervises,

manages, and controls the DPW. He also has final policymaking

authority, and effectuated Fincher's termination. Therefore, we

conclude the claim was properly brought pursuant to

.

The parties agree about the length of the statute of

limitations but disagree about which actions taken by the Town

fall within it. The magistrate judge's report and recommendation,

adopted in full by the district court, did not analyze the statute

of limitations issue, finding that it made no difference to

Fincher's § 1983 claim. As is our prerogative upon de novo review,

we choose to put a finer point on that issue.

- 9 - Section 1983 "borrows the appropriate state law

governing limitations unless contrary to federal law." Poy v.

Boutselis,

(1st Cir. 2003). "The limitation

period applicable to a [§] 1983 claim is to be found in the general

personal injury statute of the jurisdiction in which the claim

arises." Gilbert v. City of Cambridge,

(1st Cir.

1991) (citing Owens v. Okure,

(1989)). The

statute of limitations for tort claims under Massachusetts law is

three years. Mass. Gen. Laws ch. 260, § 2A. Although state law

controls the length of the statute of limitations, federal law

controls when the cause of action accrues. Poy,

.

"[A] § 1983 claim accrues when a plaintiff knows or has reason to

know of his injury." Id.

Fincher argues, and we agree, that we may consider the

Town's actions toward him throughout his employment, culminating

in his eventual termination, as part of an alleged ongoing pattern

of discrimination. Under the continuing violation doctrine, a

plaintiff may incorporate otherwise time-barred allegations into

his claim if they "are part of the same unlawful employment

practice and at least one act falls within the time period."

Ayala-Sepúlveda v. Municipality of San Germán,

(1st Cir. 2012) (quoting Nat'l R.R. Passenger Corp. v. Morgan,

(2002)). Here, at least one act falls within the

three-year time period (Fincher's termination) and Fincher alleges

- 10 - this is part of the same unlawful employment practice as the Town's

earlier actions (racial discrimination in connection with his

injuries and job assignments). Therefore, under the continuing

violation doctrine, we may consider the Town's actions throughout

Fincher's employment and culminating in his termination.2

C. Equal Protection Claim

1. Comparator Evidence

To prevail on a claim of racial discrimination in

violation of the Equal Protection Clause, at least in the absence

of direct proof that racial animus caused the adverse action, a

plaintiff must establish (1) that he was selected for adverse

treatment compared with others similarly situated, and (2) that

the selection for adverse treatment was based on an impermissible

consideration, such as his race. See Alston v. Town of Brookline,

(1st Cir. 2021); Rubinovitz v. Rogato,

(1st Cir. 1995); Dartmouth Rev. v. Dartmouth Coll.,

(1st Cir. 1989), overruled on other grounds by

Educadores Puertorriqueños en Acción v. Hernández,

(1st Cir. 2004). To prove discrimination, a plaintiff can

"identify and relate specific instances where persons situated

Consistent with Supreme Court precedent on analogous Title 2

VII employment discrimination issues, to the extent that the Town's pre-termination actions formed the basis of Fincher's termination, we may also consider them "as background evidence in support of a timely claim," though they are not independently actionable. Morgan,

.

- 11 - similarly 'in all relevant aspects' were treated differently."

Dartmouth Rev.,

(quoting Smith v. Monsanto Chem.

Co.,

(8th Cir. 1985)). These relevant aspects

include job "performance, qualifications and conduct, 'without

such differentiating or mitigating circumstances that would

distinguish' their situations." Smith v. Stratus Comput. Inc.,

(1st Cir. 1994) (quoting Mitchell v. Toledo Hosp.,

(6th Cir. 1992)). A court can grant summary judgment

when "it is clear that no reasonable jury could find the similarly

situated prong met." Cordi-Allen v. Conlon,

(1st Cir. 2007) (quoting Harlen Assocs. v. Incorporated Village of

Mineola,

, 499 n.2 (2d Cir. 2001)).

Fincher's equal protection theory is that the Town

discriminated against him on the basis of race by refusing to

provide him with a reasonable accommodation for his shoulder

injury, culminating in his termination, while simultaneously

providing an accommodation to a white employee who was unable to

perform his job duties, allowing him to keep his job. More

specifically, Fincher argues that the Town discriminated against

him by failing to transfer him away from the packer position when

it became clear that he could not continue to lift and throw trash

with his shoulder injury. On appeal, Fincher proffers one

- 12 - purported comparator: K.G.,3 a Caucasian man who also worked in

the Sanitation division.4 Fincher argues that K.G. was similarly

situated because he also worked for the Town in the Sanitation

division, specifically on the packer truck, and became unable to

do his job due to a medical condition. Fincher states that the

summary judgment record establishes that K.G. had a drinking

problem, which the Town was made aware of after K.G. caused a

disturbance at the Town Hall. K.G. then applied for and was

granted a transfer off of the packer truck and onto the Highway

roster to a position that required a CDL.5

3 For purposes of anonymity, this individual will be referred to by initials only. 4 Fincher raised other comparators before the district court. By not discussing these comparators in his opening brief to this court and only focusing on K.G., he has waived those arguments. See United States v. Mayendía-Blanco,

(1st Cir. 2018). We note that Fincher did mention one other potential comparator, D.M., in his statement of facts before this court. Simply mentioning the comparator in the statement of facts, without more, is not sufficient to save the argument from waiver. See United States v. Zannino,

(1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived."). 5 Fincher states that the record establishes that K.G. was transferred off of the packer truck to a lower-paid position, ostensibly one that he was able to do despite his medical issues, and that this was the accommodation that the Town refused to give Fincher. The record establishes that K.G. applied internally for a transfer, although in his deposition, K.G. did not recall whether the Town assigned him to the new position or whether he requested it.

- 13 - The Town argues, and the district court agreed, that

K.G. and Fincher were not similarly situated because, unlike

Fincher, K.G. held a CDL which allowed him to transfer to

different, less strenuous positions within the DPW that were not

available to Fincher. We agree with the Town and the district

court as to this issue. There is no evidence in the record to the

effect that Fincher was singled out for adverse treatment

throughout his employment in comparison with others similarly

situated, and no reasonable jury could so find. The standard for

whether a plaintiff and his proposed comparator are similarly

situated "is whether a prudent person, looking objectively at the

incidents, would think them roughly equivalent and the

protagonists similarly situated." Mulero-Carrillo v. Román-

Hernández,

(1st Cir. 2015) (quoting Barrington

Cove Ltd. P'ship v. R.I. Hous. & Mortg. Fin. Corp.,

(1st Cir. 2001)).

Fincher fails to meet this standard with his proffered

comparator, K.G. The comparator must be similarly situated "in

all relevant aspects." Dartmouth Rev.,

(quoting

Smith,

). K.G. and Fincher were not. Fincher's

shoulder injury made him physically unable to do his job for the

foreseeable future. K.G.'s possession of a CDL renders his

situation different from Fincher's in a critical aspect. Fincher

did not have a CDL and did not attempt to obtain one, preventing

- 14 - him from being promoted within the DPW. Indeed, Fincher does not

identify any position within the DPW that he would have been

eligible for transfer to without a CDL. K.G., on the other hand,

had a CDL and sought out a transfer to a position that required

one. These are the "'differentiating or mitigating circumstances

that . . . distinguish' their situations." Smith,

(quoting Mitchell,

).

Fincher argues that, although K.G. was transferred to a

position that required a CDL, he did not use the CDL in his new

position. Fincher also attempts to establish that K.G.'s transfer

was a cover for a special accommodation because despite applying

for a position as a MEO-2, he was assigned to a position as a

Highway Craftsman. These facts, however, do not change our

determination that both men were not similarly situated because

K.G. did not suffer from a physical impairment that prevented him

from performing the essential duties of his job. Fincher, on the

other hand, did not apply for an internal transfer, nor does he

identify any other position that he would have been eligible for

without a CDL.

Moreover, Fincher did not establish that the Town

treated him adversely in comparison to K.G., which is required

under the first prong of the equal protection analysis. K.G.

applied internally for his transfer, which he was eligible for

because he possessed a CDL. Fincher argues that he "repeatedly

- 15 - asked to be placed in a position that did not require regular

trash-throwing," but he would have been ineligible for such

positions because he did not possess a CDL, which was required for

advancement within the DPW. The fact that K.G. applied for and

was granted a transfer away from the Sanitation division, a

transfer for which Fincher was ineligible, does not constitute

adverse treatment against Fincher.

Finally, Fincher would also be unable to prove the second

prong of the equal protection analysis, that the selection for

adverse treatment was based on an impermissible consideration.

Instead, the Town's failure to transfer Fincher and Fincher's

eventual termination were based on the fact that the Town was

unable to reasonably accommodate Fincher's serious injury within

the DPW. Indeed, Commissioner Pappastergion and the DPW made

multiple attempts to accommodate Fincher's injury as early as April

2012. When he returned to work in April 2012 following an injury,

Fincher's supervisor assigned him to light-duty tasks, such as

sweeping and raking. In May of 2012, following an injury leave,

Fincher was not assigned to Sanitation for approximately ten days,

but was instead given other clean-up tasks, such as sweeping and

cutting grass. For a two-month period shortly before his final

day of work for the Town, Fincher was not assigned to throw trash

due to his thirty-pound lifting restriction. On June 27, 2014,

while Fincher was on leave, Commissioner Pappastergion requested

- 16 - that Fincher attend a reasonable accommodation meeting, and

Fincher's attorney responded that Fincher had a pending

application for accidental disability retirement benefits and

therefore the meeting would be unnecessary. Following that,

Commissioner Pappastergion convened a meeting on May 12, 2015 to

discuss Fincher's possible accommodations. Although Commissioner

Pappastergion terminated Fincher's employment following that

meeting, it was because he found that Fincher was no longer able

to perform the essential functions of his job, with or without

reasonable accommodation. The Town's efforts to accommodate

Fincher, coupled with Fincher's own desire to pursue accidental

disability retirement benefits as opposed to a reasonable

accommodation, show a legitimate and nondiscriminatory reason for

Fincher's termination.

Therefore, in this case lacking direct proof of

discriminatory animus, Fincher cannot prevail using comparator

evidence due to his failure to show that he was treated differently

than non-Black workers in similar situations. From the evidence

in the record, it is clear that no reasonable jury could find the

similarly situated prong met. See Cordi-Allen,

.

A final note. The record establishes that Fincher

voluntarily requested and was granted accidental disability

retirement benefits. The benefits were approved on October 18,

2016, and were issued with a retroactive retirement date of April

- 17 - 9, 2015, prior to Fincher's eventual termination on May 13, 2015.

In his application for the benefits, Fincher stated that he could

no longer throw trash, and that he had been unable to perform the

essential duties of his position since March of 2013. This

suggests that, contrary to Fincher's argument, lifting and

throwing trash was one of the Town's legitimate requirements for

the job. It also underscores the fact that the Town did not select

and single out Fincher for adverse treatment. Rather, the Town

approved the benefits that Fincher himself had sought out in lieu

of a reasonable accommodation because he was no longer able to

perform the essential duties of the position.

2. McDonnell Douglas Framework

On de novo review, Fincher would like us to reverse the

summary judgment grant on the basis that the Town's

nondiscriminatory reasons for terminating Fincher were pretextual.

He points us to evidence in the record of incidents where the Town

showed indifference to the rights of racial minorities, which he

says could persuade a jury that the reasons the Town ultimately

terminated Fincher were rooted in racism.

In so arguing, Fincher urges us to apply the McDonnell

Douglas burden-shifting framework to generate an inference of

discriminatory animus. McDonnell Douglas Corp. v. Green,

(1973); see also White v. Vathally,

(1st

Cir. 1984) ("Where direct evidence of discriminatory intent is

- 18 - lacking, we have recognized that the analytical framework for

proving discriminatory treatment set out in [McDonnell Douglas] is

equally applicable to constitutional and to Title VII claims.").

Even if we were to assume that Fincher could make out a

prima facie case, shifting the burden to the Town to articulate a

nondiscriminatory explanation for Fincher's treatment, Fincher

provides no evidence sufficient to suggest that the Town's

explanation is false, much less a pretextual mask for

discrimination. He points generally to past incidents in which

the Town "arguably show[ed] a callous indifference to the rights

of racial minorities (and women)." Although Fincher's briefing to

us is not precise on this point, his descriptions of the incidents

below seem to indicate that only one of the events concerning

alleged race discrimination occurred during Commissioner

Pappastergion's tenure and involved the Commissioner. In that

incident, Commissioner Pappastergion, however, disciplined the DPW

employee involved for his alleged racist conduct. Fincher also

points to the proffered testimony of a former coworker, which

Fincher says would "establish the prevalence of racist attitudes

within the department." Although the coworker described troubling

allegations of racism, the same do not involve Commissioner

Pappastergion or any purposeful failure to act on his behalf.

Accordingly, Fincher's evidence fails to convince us that the

Town's proffered reasons for failing to accommodate and then

- 19 - dismissing Fincher were a pretext for race discrimination. Our

analysis ends there.

III. Conclusion

Accordingly, we AFFIRM the judgment of the district

court and uphold the grant of summary judgment to the Town of

Brookline. The decision is

AFFIRMED.

- 20 -