United States Court of Appeals For the First Circuit

Nos. 21-1293, 21-1300

CHRISTOPHER BRUCE,

Plaintiff, Appellant, Cross-Appellee,

AMALGAMATED TRANSIT UNION,

Plaintiff,

v.

WORCESTER REGIONAL TRANSIT AUTHORITY; CENTRAL MASS TRANSIT MANAGEMENT, INC.; DAVID TRABUCCO, in his individual and official capacities; JONATHAN CHURCH, in his individual and official capacities,

Defendants, Appellees, Cross-Appellants,

JAMES PARKER, in his individual and official capacities,

Defendant, Appellee.

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

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Barron, Chief Judge, Howard and Thompson, Circuit Judges.

Willem Bloom, with whom Michael P. Persoon, Thomas H. Geoghegan, Despres, Schwartz & Geoghegan, Ltd., Harold Lichten, and Lichten & Liss-Riordan, P.C. were on brief, for appellant/ cross-appellee. Thomas J. Conte, with whom Alexandra N. Mansfield and Mirick, O'Connell, DeMallie & Lougee, LLP were on brief, for appellees/ cross-appellants. Christopher B. Kaczmarek and Littler Mendelson, P.C. on brief for appellee James Parker.

May 18, 2022 BARRON, Chief Judge. Christopher Bruce is a former bus

driver for the Worcester Regional Transit Authority ("WRTA"). He

was employed in that capacity by Central Mass Transit Management,

Inc. ("CMTM"), which had contracted with WRTA to provide bus

service to the City of Worcester and surrounding towns. While so

employed, Bruce also served as president of the bus drivers' union,

Amalgamated Transit Union Local 22 ("Local 22"). Bruce was fired

on February 8, 2018, from his job as a WRTA bus driver. His

termination followed the public comments that he made to a

television network about proposed budget cuts to the WRTA.

In response to the termination of his employment, Bruce

filed suit under

claiming a violation of his right

to free speech under the First Amendment of the U.S. Constitution

and under the Massachusetts Civil Rights Act ("MCRA") in the United

States District Court for the District of Massachusetts. He named

as defendants WRTA; CMTM; James Parker, the general manager of

CMTM; David Trabucco, the director of operations of CMTM; and

Jonathan Church, the Executive Director of WRTA. The District

Court granted summary judgment to the defendants on Bruce's claims.

We vacate and remand.

I.

WRTA is a Massachusetts public authority that provides

transit service to Worcester and surrounding towns. See Mass.

Gen. Laws ch. 161B, §§ 2, 3. WRTA is prohibited from "directly

- 3 - operat[ing] any mass transportation service," id. § 25, however,

and so it contracts with a private party to operate that service,

see id. § 6(f).

During the time relevant to the issues in this appeal,

WRTA contracted with CMTM, which is a wholly owned subsidiary of

First Transit, Inc. WRTA's bus drivers are employees of CMTM but

nonetheless wear uniforms with WRTA logos, and WRTA pays the

drivers' nonwage compensation, such as pension benefits, directly

out of its own budget. WRTA also owns the buses that the drivers

operate, approves bus routes, makes certain service-related

decisions, and owns real property where the drivers perform some

of their duties, including the site known as "the Hub." Finally,

some officers of CMTM -- including Parker and Trabucco -- often

identify themselves as officers of WRTA when they send

correspondence.

At the same time, CMTM has adopted its own rules for

employment, including for disciplining its employees, and CMTM

enforces those rules. CMTM also negotiates with Local 22.

Bruce worked as a WRTA bus driver from 1976 until 1994,

when he left to work as a full-time business agent for Local 22.

Bruce then returned to work at WRTA, as a CMTM employee, in 2013

when he was elected president of Local 22, which is an unpaid role.

In 2015, CMTM terminated Bruce's employment for

disciplinary infractions, including improper cell phone use while

- 4 - driving and failure to follow orders. That termination was later

rescinded by agreement. But, after another disciplinary

infraction, Bruce was demoted in 2016 and eventually terminated

from employment with CMTM in February 2017 after "giving back" an

overtime shift for which he had previously volunteered.

Following this latter termination, Bruce approached the

Local 22 business agent, Ken Kephart, and told him that he "wanted

to get back to work as soon as possible." Bruce asked Kephart "to

go in and talk to [CMTM] to see if he could make an arrangement to

make a last chance or a way to get back."

Bruce was apparently referring to what is known as a

"last chance agreement." Kephart indicated that he did not like

last chance agreements, and so did Bruce. But, Bruce said, "I

need to get back to work."

Bruce, Kephart, and Parker entered into a last chance

agreement on March 30, 2017 (the "Last Chance Agreement"). The

Last Chance Agreement provided that Bruce's termination of

employment would be converted to a suspension without pay for the

period that he was not working and that Bruce would return to work

on April 1, 2017. It further provided that "[a]ny determination

by" CMTM that Bruce had committed certain disciplinary infractions

during a two-year period would "result in immediate termination of

Mr. Bruce's employment."

- 5 - In addition, under the agreement, Bruce and Kephart

agreed "to waive any and all rights they may have presently or in

the future to file or assert any claim, complaint, grievance,

appeal to arbitration or other action in any forum of any kind in

regard to any further disciplinary action including termination

invoked by [CMTM] pursuant to [the Last Chance] Agreement for the

two (2) year period." Bruce also was given under the agreement

"the opportunity to consult with a representative of his choosing

prior to signing this Agreement, including consultation with

[Bruce's] Union," and the agreement stated that Bruce "has done

so."

Bruce faced discipline again in January 2018, when he

was investigated for leaving the scene of an accident. It was

determined, however, that he did not conclusively violate a safety

procedure or practice.

That same month, the Governor of Massachusetts proposed

significant budget cuts to regional transportation authorities in

his proposed budget for the 2019 fiscal year. CMTM and Local 22

agreed to participate in joint efforts to oppose the budget cuts.

On January 29, 2018, Parker included in his daily email

to CMTM employees a message that directed CMTM drivers to "contact

your reps and feel free to talk with passengers, family, friends

and each other." Trabucco and Church testified that no preapproval

was needed for employees who spoke to the media while off-duty and

- 6 - not in uniform, but the written policy covered "[a]ll statements

in which an employee is representing CMTM or WRTA" without

reference to hours of duty or uniform.

Bruce participated in an interview regarding the budget

cuts with the Worcester Telegram & Gazette for an article that the

newspaper published on February 4, 2018. Bruce was working at the

time as a "report" driver. He thus was responsible at the time

both for driving WRTA buses that had been taken out of service

from the "Hub," which is the central terminal for WRTA services,

to CMTM's maintenance and operations facility, for filling in for

sick drivers, and for driving repaired buses back from that

facility to the "Hub" so that the buses could be placed back in

service.

The newspaper article discussed Local 22's efforts to

"mobiliz[e] in the face of rumored service cuts and job losses as

[WRTA] confronts an anticipated $1 million budget shortfall." The

article reported that "Bruce, [the] Local 22 president, said he

hadn't seen an effort like this since the strike of 2004." Bruce

testified that he was on duty when he gave the interview.

The next day, February 5, 2018, Bruce received a

telephone call from a reporter for the local Telemundo television

station. The reporter requested to interview bus drivers about

the proposed budget cuts, and Bruce told her to meet him the next

day at 12:30 PM at the Hub, when there would be a shift change.

- 7 - Bruce contacted four other drivers to arrange for them

to speak with the reporter too. Bruce arrived at the Hub at 11:00

AM after bringing a bus there, and the Telemundo TV crew had

already arrived.

Bruce spoke with the crew, one member of whom asked to

take a ride in a bus around the Hub to prepare the camera. Bruce

did not check in with his immediate supervisor to determine if he

had any tasks to perform. However, Bruce testified that he knew

he did not because all of the buses at the repair garage were in

disrepair, so his next job would have to be to take a bus back

from the Hub.

Bruce gave an interview to the TV crew before his shift

ended while in uniform and driving a bus around the back lot at

the Hub at no more than 5 miles per hour with no one else on board.

A short clip from Bruce's interview aired that night on Telemundo.

The clip shows Bruce briefly looking at the reporter,

who stood behind him, and at one point taking both hands off of

the steering wheel. Bruce tells the interviewer that if the

proposed budgets cuts are enacted, "the public will be the loser."

A chyron identifies Bruce as "Presidente del Sindicato," meaning

"President of the Union."

The following day, February 7, Bruce received a letter

from David Trabucco, CMTM director of operations, that informed

him that he was being investigated for making unauthorized

- 8 - statements to the media, for a willful or deliberate violation of

or disregard of safety rules or common safety practice, and for a

failure to follow work orders. CMTM policy requires drivers to

seek preapproval for "[a]ll statements in which an employee is

representing CMTM or WRTA."

Trabucco met with Bruce on February 8. Kephart and Jo-

Ann Clougherty, the Human Resources Manager for CMTM, attended the

meeting as well.

Clougherty's notes of the meeting reflect that Bruce

said that he had "no intention of doing anything bad. I screwed

up . . . [g]ot phone calls from media should have had them call

Ken [Parker]." The notes further state that Trabucco informed

Bruce "You know you need authorization to speak," and Bruce

responded, "yes I know." Trabucco informed Bruce that he would be

taken out of service pending the investigation.

Bruce and Kephart subsequently met with Parker. Bruce

testified that he said the same thing to Parker that he had said

to Trabucco.

Parker wrote a letter to Bruce on February 13 informing

him that he had been terminated following "the investigation of

the . . . infractions you were charged with."

Bruce and Kephart subsequently went to see Parker the

same day to ask him to reconsider the termination. Parker, in a

memorandum for record written after that conversation, wrote that

- 9 - he "went through each of the three charges which led to my

decision," and that "Chris acknowledged that he committed the

offenses." Parker further wrote that he "explained that [he] felt

the coordination of an unauthorized media interview combined with

the completely unsafe manner in which it was conducted while he

was on the clock and should have been driving the bus back to the

garage led to my decision. I felt he was doing this to thumb his

nose at the company and if I let it pass it would establish a

dangerous precedent." Parker testified that the memorandum

accurately reflected the conversation.

Bruce and Amalgamated Transit Union filed suit against

WRTA, CMTM, Trabucco, Church, and Parker on March 26, 2018. After

discovery, both plaintiffs and defendants filed cross-motions for

summary judgment. The District Court denied the plaintiffs' motion

and granted the defendants' motion. See Bruce v. Worcester Reg'l

Transit Auth.,

, 81 (D. Mass. 2021).

Bruce timely appealed; he was not joined by the

Amalgamated Transit Union. All of the defendants except Parker

cross-appealed based on the District Court's conclusion that the

waiver that Bruce had signed in the Last Chance Agreement did not

bar his claims. Although the District Court had merely "assume[d]

. . . that CMTM was acting under color of state law when it

terminated" Bruce,

, the appealing defendants also

- 10 - appealed "to the extent that the [District] Court found that CMTM

was so entwined with WRTA that it constituted a state actor."

II.

We begin with Bruce's challenge to the District Court's

grant of summary judgment to the defendants on his § 1983 claim.

Bruce alleges in that claim that he was fired based on his

interview with Telemundo in violation of the First Amendment.

"To determine whether an adverse employment action

against a public employee violated an individual's First Amendment

free speech rights, we employ a three-part inquiry." Gilbert v.

City of Chicopee,

(1st Cir. 2019); see also

Curran v. Cousins,

(1st Cir. 2007) (aligning this

circuit's three-part test with Garcetti v. Ceballos,

(2006)). The first part concerns whether the public employee

"spoke as a citizen on a matter of public concern." Gilbert,

(quoting Curran,

). The second part

concerns whether, if the employee did so, "the relevant government

entity had an adequate justification for treating the employee

differently from any other member of the general public." Curran,

(quoting Garcetti,

). The third

part concerns whether, if that government entity did not have an

adequate justification, "the protected expression was a

substantial or motivating factor in the adverse employment

decision."

Even then, "the employer must have the opportunity

- 11 - to prove that it would have made the same decision regardless of

the protected expression."

(citing Mt. Healthy City Sch. Dist.

Bd. of Educ. v. Doyle,

(1977)); see also McCue

v. Bradstreet,

(1st Cir. 2015).

Bruce contends that the defendants are not entitled to

summary judgment on this claim because of what he contends the

record shows in relation to each part of the tripartite

constitutional inquiry. We review the District Court's decision

de novo to determine if a "reasonable fact-finder, examining the

evidence and drawing all reasonable inferences helpful to [Bruce]

could resolve the dispute in [Bruce's] favor." Hill v. Walsh,

(1st Cir. 2018) (citations omitted).

A.

There is no dispute that the budget cuts that Bruce

discussed in his interview with Telemundo constituted a "matter of

public concern." Curran,

. The parties do dispute,

however, whether Bruce "spoke as a citizen,"

or, instead,

only "pursuant to [his] official duties," Decotiis v. Whittemore,

(1st Cir. 2011) (quoting Garcetti,

). Bruce contends that, given what a reasonable juror could

find the record shows about the circumstances in which he was

speaking during the interview, he was speaking as a citizen.

Insofar as there is no material dispute of fact with respect to

the circumstances in which Bruce gave the interview, the question

- 12 - of whether Bruce is right on that score is one of law. Curran,

(citing Connick v. Myers,

, 148 n.7

(1983)).

To assess Bruce's contention, it helps to start by

reviewing what the Supreme Court of the United States held in

Garcetti, as that case, too, concerned a public employee's First

Amendment challenge to a termination of his employer that he

contended was based on speech that he made at work. There, a

deputy district attorney alleged that his supervisors violated the

First Amendment when they retaliated against him for speech that

he made to them concerning what he saw as deficiencies in a pending

prosecution by his office.

. The Supreme Court

held that the District Court had correctly granted summary judgment

to the defendants, because the prosecutor's "expressions were made

pursuant to his duties as a calendar deputy," given that he "spoke

as a prosecutor fulfilling a responsibility to advise his

supervisor about how best to proceed with a pending case."

.

The Supreme Court stated the general rule this way: "when

public employees make statements pursuant to their official

duties, the employees are not speaking as citizens for First

Amendment purposes, and the Constitution does not insulate their

communications from employer discipline."

The Supreme Court

made clear, however, that it was "not dispositive" that the

- 13 - prosecutor had "expressed his views inside the office, rather than

publicly," because "[e]mployees in some cases may receive First

Amendment protection for expressions made at work."

at 420

(citing Givhan v. W. Line Consol. Sch. Dist.,

(1979)).

Thus, when determining whether an employee spoke

"pursuant to their official duties," we must focus on whether the

speech was "part of what" the employee was "employed to do" rather

than merely whether the employee engaged in the speech "at work."

. As the Court has put it following Garcetti: "The

critical question under Garcetti is whether the speech at issue is

itself ordinarily within the scope of an employee's duties, not

whether it merely concerns those duties." See Lane v. Franks,

, 240 (2014).

Here, there is no question that Bruce spoke to Telemundo

while he was "at work." But, Bruce contends, the District Court

erred in ruling that he spoke to Telemundo during the interview

pursuant to his official duties and not "as a citizen." And that

is because, he argues, he was speaking to Telemundo as an official

of Local 22 about a matter that merely concerned his duties in a

general sense.

Bruce urges that we hold that a public employee is not

speaking pursuant to his official duties -- and is instead speaking

in his capacity as a citizen -- whenever the employee is speaking,

- 14 - even at work, as an official of the employee's union. Bruce argues

that such a rule is supported by Supreme Court precedent that

"draw[s] a clear distinction between employer speech and union

speech." See Janus v. Am. Fed. Of St., Cty., and Mun. Emps.,

(2018) (noting that unions "speak[] for the

employees, not the employer"). And, Bruce further contends that

some of our sister circuits have adopted this rule. See Boulton

v. Swanson,

(6th Cir. 2015) ("We . . . hold that

speech in connection with union activities is speech 'as a citizen'

for purposes of the First Amendment."); Ellins v. City of Sierra

Madre,

(9th Cir. 2013) (same); Fuerst v.

Clarke,

(7th Cir. 2006) ("Because [an employee's]

comments that precipitated the adverse action taken against him

were made in his capacity as a union representative, rather than

in the course of his employment as a deputy sheriff . . .

[Garcetti] is inapposite.").

We need not go that far. Under our post-Garcetti

precedent in this area, it is evident that, given what a reasonable

juror could find about the circumstances in which Bruce was

speaking to Telemundo, Bruce was speaking in his capacity "as a

citizen" during the interview.

In applying Garcetti, we have identified a number of

nonexclusive factors that indicate that a public employee is

speaking "as a citizen," rather than "pursuant to the [employee's]

- 15 - official duties." They include "whether the employee was

commissioned or paid to make the speech in question" by the

employer; whether "the subject matter of the speech" indicates the

capacity in which the employee was speaking; "whether the speech

was made up the chain of command" of the employer or independent

of it; "whether the employee spoke at her place of employment" or

elsewhere; "whether the speech gave objective observers the

impression that the employee represented the employer when she

spoke (lending it 'official significance')"; "whether the

employee's speech derived from special knowledge obtained during

the course of her employment"; and "whether there is a so-called

citizen analogue to the speech." Gilbert,

(quoting

Decotiis,

).

Bruce contends that, in light of what the record

supportably shows with respect to each of those factors it was

error for the District Court to conclude that, as a matter of law,

he was not speaking "as a citizen" during the Telemundo interview.

We agree.

A reasonable juror could find on this record -- as the

parties appear to agree -- that Bruce was not paid by CMTM to speak

with Telemundo, and that Telemundo identified Bruce to its viewers

as "Presidente del Sindicato" (or, "President of the Union").

Such a juror also could find on this record that Bruce's speech

did not derive from any special knowledge that he had gained as a

- 16 - public employee but was based instead on the common-sense premise

(or, at most, a premise that he could have learned as a union

official) that cuts to WRTA's budget would impact WRTA service.

Moreover, a reasonable juror could find on this record

that Bruce's statements to Telemundo were essentially the same as

ones that a typical WRTA rider could have made, which would support

the determination that there is a citizen analogue to the speech

at issue. Nor, obviously, were Bruce's comments made up the chain

of command. In fact, that a reasonable juror could find that Bruce

spoke -- as the defendants' own position accepts -- to Telemundo

contrary to his employer's directives indicates that his speech

fell outside his professional duties. See Dahlia v. Rodriguez,

(9th Cir. 2013) (en banc).

The defendants stress in response that the record shows

that Bruce was interviewed in uniform, while driving a bus on WRTA

property in the middle of his workday. But, the same could be

said of any speech by Bruce while he was in uniform at work.

Garcetti is clear in holding that there is a distinction between

speech made "pursuant to [an employee's] official duties" and

speech made "at work."

; see also

("That Ceballos expressed his views inside his office, rather than

publicly, is not dispositive.").

The defendants do argue that "[w]hile Bruce's 'official

duties' may not have included making public addresses, it is

- 17 - undisputed that CMTM authorized its employees to speak out

regarding the WRTA budget cuts, including by handing out flyers."

And it is true that the fact that the employer commissions or pays

for the speech at issue points in favor of the determination that

the speech was not made "as a citizen." It does not follow,

however, that the employer's failure to prohibit that speech

necessarily means that the speech is made "pursuant to official

duties." Cf. Decotiis,

("In identifying Plaintiff's

official responsibilities, 'the proper inquiry is "practical"

rather than formal, focusing on "the duties an employee actually

is expected to perform,"' and not merely those formally listed in

the employee's job description." (quoting Mercado-Berrios v.

Cancel-Alegría,

(1st Cir. 2010))).

The defendants also point to a statement by Bruce in his

motion for summary judgment below that suggests that Telemundo

sought out drivers to interview generally, rather than union

representatives. There is no dispute, though, that Telemundo

identified Bruce as the union president, rather than as a driver,

in the clip of the interview shown to the public. Moreover, given

the strength of the factors that point towards a conclusion that

Bruce was speaking in a private capacity, the fact that Telemundo

may have been seeking comments from WRTA drivers in their role as

drivers does not suffice to show that, as a matter of law on this

record, Bruce himself was speaking to Telemundo during the

- 18 - interview in that capacity rather than in his capacity as a union

president.

B.

We come, then, to the second part of the three-part

inquiry. Here, the question is whether, even if Bruce spoke "as

a citizen" on a "matter of public concern" during the Telemundo

interview, the defendants "had an adequate justification for

treating [him] differently from any other member of the general

public" by terminating him for his protected speech, Curran,

(quoting Garcetti,

).

The defendants urge us to affirm the District Court's

grant of summary judgment to them on Bruce's § 1983 claim on this

ground, notwithstanding that the District Court made no finding

regarding it. We decline to do so.

This portion of the inquiry requires that we "attempt[]

to 'balance the value of an employee's speech -- both the

employee's own interests and the public's interest in the

information the employee seeks to impart -- against the employer's

legitimate government interest in preventing unnecessary

disruptions and inefficiencies in carrying out its public service

mission.'" Decotiis,

(internal quotation marks

omitted) (quoting Guilloty Perez v. Pierluisi,

(1st Cir. 2003)); see also Connick,

; Pickering v.

Bd. of Educ. of Twp. High Sch. Dist. 205,

(1968).

- 19 - We consider "(1) 'the time, place, and manner of the employee's

speech,' and (2) 'the employer's motivation in making the adverse

employment decision.'" Decotiis,

(quoting Davignon

v. Hodgson,

(1st Cir. 2008)). If, in considering

these factors, we determine that the employee "face[d] only those

speech restrictions that are necessary for [his] employer[] to

operate efficiently and effectively," Garcetti,

,

then the defendants' restrictions on speech were adequately

justified and we must affirm the District Court's grant of summary

judgment to the defendants. The resolution of this question is,

like the question we have just discussed, a matter of law for the

court to decide. Curran,

.

The determination of whether the firing of a public

employee for violating a restriction on speech that the employer

imposed is justified necessarily hinges on the nature of that

restriction. Bruce contends that the record suffices to allow a

reasonable juror to find that the speech restriction at issue was

the one in CMTM's Employee Discipline Policy, which, as we have

mentioned, provides that "[a]ll statements in which an employee is

representing CMTM or WRTA must be pre-approved by the General

Manager." The defendants contend that even if he was terminated

because of that policy, that policy was adequately justified by

the defendants' efficiency and safety interests.

- 20 - That policy, by its plain language, covers even

statements made while an employee is off duty and without regard

to their content. And while Parker testified that it did not reach

that far, he was unable to point to anything that would

substantiate his claim that the policy was not as broad as its

plain language would suggest, creating at least a genuine issue of

fact as to the reach of the policy. Thus, insofar as a juror could

find that the policy is as broad as its terms indicate that it is,

as we conclude such a juror could, we do not see how that policy

is "necessary" for WRTA and CMTM "to operate efficiently and

effectively," Garcetti,

.

Notably, WRTA and CMTM do not offer any justification

for requiring pre-authorization in the expansive array of

scenarios where an employee might be said to be "representing" one

of those organizations, particularly given that they applied the

policy to an interview in which Bruce was identified as the union

president. True, Parker does argue that "[a]n employer need not

show an actual adverse effect in order to terminate an employee,"

Curran,

, but instead may "consider . . . speech's

potential to disrupt," Davignon,

(emphasis added).

But, in Davignon, we did not allow a public employer to use the

potential for speech to cause disruption as a post hoc

rationalization for terminating an employee; we instead looked to

- 21 - the record to determine whether the potential for disruption was

actually the reason for the firing.

Here, the record would allow a reasonable juror to

conclude that Bruce was terminated simply because he violated the

broad preauthorization policy and not because of any specific

conduct in which he engaged for which a more tailored

preauthorization policy might be warranted. And, that being so,

his termination simply for violating that broad preauthorization

policy cannot plausibly be justified as necessary to protect the

defendants' legitimate safety and efficiency interests.

C.

That brings us to the third part of the three-part

inquiry, which concerns whether the public employee can

"demonstrate 'that the protected expression was a substantial or

motivating factor in the adverse employment decision.'"

Delaney v. Town of Abington,

(1st Cir. 2018) (quoting

Curran,

). In holding that Bruce failed to make

that showing, the District Court pointed -- and the defendants now

point -- to the fact that the defendants consistently stated that

Bruce committed three infractions, any of which subjected him to

termination under the Last Chance Agreement. See Bruce, 527 F.

Supp. 3d at 80. The defendants now renew their argument that

because Bruce committed two terminable violations that did "not

involv[e] speech of any kind," they are "not liable because Bruce

- 22 - would have been terminated for either of the other two (2) listed

infractions, which did not involve speech." Parker advances an

argument along similar lines.

As Bruce explains, however, the memorandum from Parker

contemporaneously recording the conversation that he had with

Bruce and Kephart states that Bruce was fired because Parker "felt

the coordination of an unauthorized media interview combined with

the completely unsafe manner in which it was conducted while he

was on the clock and should have been driving the bus back to the

garage" (emphasis added), demonstrates that "the non-speech

actions alone were not sufficient to justify termination" such

that a reasonable juror could conclude that the speech element was

the motivating factor for Parker's decision. Bruce also points to

Parker's comment to Bruce that Parker felt Bruce was "thumb[ing]

his nose at" CMTM and that Parker could not "let it pass," arguing

that these statements demonstrate that Bruce's speech was central

to his termination.

Thus, given this evidence, we agree with Bruce that a

reasonable juror could read Parker's memorandum to say that the

mere fact that Bruce gave an unauthorized interview was the

substantial factor behind his termination, or that the three

disciplinary violations are so intertwined that the resulting

termination cannot be understood except as a reaction to Bruce's

interview. We also agree with Bruce that a reasonable juror could

- 23 - infer from the comment that Bruce was "thumb[ing] his nose" that

Parker perceived a personal affront from Bruce's comments that

must be based on Bruce's failure to seek preauthorization for his

interview, as that reasonable juror might think it odd for the

other violations to give rise to such a feeling. Moreover, the

record does not contain any evidence that would compel a reasonable

juror to conclude that Bruce would have been terminated had he

engaged in the same conduct but not given an unauthorized

interview. The defendants' arguments to the contrary identify, at

best, evidence that Bruce could have been terminated.

D.

Parker asserts, as a separate ground for affirming the

District Court's ruling, what is known as the Mt. Healthy defense

-- that the defendants "would have terminated Bruce's employment

regardless of his comments to Telemundo." To the extent this

defense is separate from the "substantial or motivating factor"

inquiry, see Decotiis,

(directing us to look to

Mt. Healthy only if the aforementioned "three parts of the inquiry

are resolved in favor of the plaintiff"), our reasoning as to that

inquiry is equally on point.

As we have explained, although a reasonable juror might

be compelled to conclude based on the record evidence that Bruce

could have been fired pursuant to the terms of the Last Chance

Agreement based on his conduct, such a juror would not be compelled

- 24 - to conclude on this record that Bruce would have been fired. So,

we cannot affirm the grant of summary judgment on this ground

either.

III.

We next turn to Bruce's MCRA claim. The District Court

granted summary judgment to the defendants on this claim "for the

same reasons" that it gave in granting them summary judgment on

his § 1983 claim. Bruce, 527 F. Supp. 3d at 81. Thus, for the

reasons we have discussed, we reverse the grant of summary judgment

on this claim, too.

The defendants briefly argue, however, that we should

affirm notwithstanding our treatment of the § 1983 claim because,

before the District Court, the defendants advanced arguments that

Bruce had not shown the requisite threats, intimidation, or

coercion to succeed on a MCRA claim, see Mass. Gen. Laws ch. 12,

§§ 11H(a)(1), 11I, and Bruce did not rebut these arguments.

Because the District Court did not address this contention below,

we leave it to be addressed by the District Court in the first

instance on remand.

IV.

There remains to address only the defendants'

contentions -- which they style as a cross appeal -- that we may

affirm the District Court's grant of summary judgment on the

alternative grounds that (1) the Last Chance Agreement barred

- 25 - Bruce's claims and (2) Bruce has failed to meet his burden to show

"state action." See Alberty-Vélez v. Corporación de P.R. Para La

Difusion Publica,

, 5 n.4 (1st Cir. 2004) (noting that

although "a party may not appeal from a favorable judgment," even

when the District Court has rejected some of that party's

arguments, we still may "treat [the] cross-appeal as a request

that we affirm the summary judgment ruling on" the bases the

District Court rejected). As we will explain, we conclude that

the ultimate resolution of whether each of these grounds has merit

is also best addressed by the District Court in the first instance

on remand. See Yan v. ReWalk Robotics Ltd.,

(1st

Cir. 2020) (noting our "discretion" to choose this course).

A.

In the Last Chance Agreement, Bruce and Local 22 agreed

"to waive any and all rights they may have presently or in the

future to file or assert any claim, complaint, grievance, appeal

to arbitration or other action in any forum of any kind in regard

to any further disciplinary action including termination invoked

by [CMTM] pursuant to [the Last Chance] Agreement for the two (2)

year period." "Waiver and release are affirmative defenses on

which the employer bears the burden." Rivera-Flores v. Bristol-

Myers Squibb Caribbean,

(1st Cir. 1997) (citing

Fed. R. Civ. P. 8(c)). We review the District Court's conclusion

- 26 - that the defendants did not meet that burden de novo. Hill,

.

With respect to Bruce's § 1983 claim, the District Court

applied our precedent addressing the waiver of federal statutory

claims, which requires that such a waiver must have been made

knowingly and voluntarily. See Rivera-Flores,

.

Under that precedent, we have applied a totality of the

circumstances test that includes, but is not limited to, "a non-

exclusive set of six factors," namely "(1) plaintiff's education

and business experience; (2) the respective roles of the employer

and employee in determining the provisions of the waiver; (3) the

clarity of the agreement; (4) the time plaintiff had to study the

agreement; (5) whether plaintiff had independent advice, such as

that of counsel; and (6) the consideration for the waiver."

Melanson v. Browning-Ferris Indus., Inc.,

, 276 & n.4

(1st Cir. 2002) (citing Smart v. Gillette Co. Long-Term Disability

Plan,

, 181 n.3 (1st Cir. 1995)).

The District Court ruled based on these factors that

"[t]he only factor in Bruce's favor is that CMTM drafted the waiver

provision," but the District Court nonetheless concluded "that the

fact that the waiver provision does not expressly specify that the

waiver includes constitutional and/or statutory claims at least

brings its scope into question." Bruce, 527 F. Supp. 3d at 78.

The District Court thus found that there was "a genuine issue of

- 27 - material fact as to whether Bruce knowingly and voluntarily waived

his right [to] assert claims against the Defendants for violation

of his right to free speech under federal . . . law." Id.

We have never held, however, that a "magic words" test

is applicable to any type of claim, such that a waiver must

expressly name the precise claims that it reaches to be knowing

and voluntary. And so, to the extent that the District Court

relied on the mere failure to mention such claims as the basis for

ruling in Bruce's favor with respect to the waiver question, we

agree with the defendants that the District Court erred.

Bruce argues, however, that, even if that is so, the

Last Chance Agreement does not bar his § 1983 claim because he is

seeking in it to vindicate a "fundamental constitutional right" --

specifically a First Amendment right. He thus argues both that

there must be "clear and convincing evidence" that he knowingly

and voluntarily waived his First Amendment-based claim and that,

under that heightened evidentiary standard, it was impossible for

him knowingly and voluntarily to waive his "unknown First Amendment

claims" that had not yet arisen. See Janus,

(establishing that "to be effective," a waiver of First Amendment

rights "must be freely given and shown by 'clear and compelling'

evidence" (quoting Curtis Publishing Co. v. Butts,

(1967) (plurality opinion))); Johnson v. Zerbst,

(1938) (directing us to "'indulge every reasonable presumption

- 28 - against waiver' of fundamental constitutional rights" (quoting

Aetna Ins. Co. v. Kennedy,

(1937))).

Bruce made the same argument below, but the District

Court did not address it and instead ruled in his favor under our

typical waiver standard. We thus leave it for the District Court

to address in the first instance on remand. We note in this regard

that the defendants do not identify any case -- nor are we aware

of any -- in which we have permitted a waiver of a First Amendment

claim brought under § 1983, and that the one precedent that the

defendants do invoke is a district court opinion that, although it

asserts that "[i]t is settled law in the First Circuit that

agreements containing waivers of an employee's right to . . .

pursue constitutional claims as consideration for resolving an

employment dispute . . . are valid and enforceable where a

defendant/employer establishes that the waiver was made knowingly

and voluntarily," Higgins v. Town of Concord,

(D. Mass. 2018), cites only to cases that do not involve

constitutionally-based claims such as the one that Bruce brings,

see

As for the MCRA claim, the question of when and how an

employee may waive such claims in an employment agreement is a

matter of state law, given that the rights MCRA protects are

grounded in state law and contract interpretation is itself

typically a matter of state law. See Ruiz-Sánchez v. Goodyear

- 29 - Tire & Rubber Co.,

(1st Cir. 2013);

Livingstone v. North Belle Vernon Borough,

(3d

Cir. 1996). The District Court relied, however, only on our

precedents concerning the waiver of federal statutory claims. See

Bruce, 527 F. Supp. 3d at 77-78. Thus, even if, as the defendants

contend, the District Court erred in applying that precedent to

find that the Last Chance Agreement did not constitute a knowing

and intelligent waiver of that claim, it erred by not applying the

state law requirements for effecting the waiver of such a claim.

Finding no definitive guidance from the SJC on the question, and

the defendants having failed to identify any on-point state court

precedent, here, too, we think the proper course is to permit the

District Court to address the parties' arguments in the first

instance.

B.

As a last ground for affirming the District Court, the

defendants contend that CMTM and its officers and employees are

not state actors, while the only state actor among the defendants

-- WRTA -- had no role in Bruce's termination. They thus contend

that Bruce's First Amendment-based § 1983 claim necessarily fails

and that in consequence, so, too, necessarily, does his MCRA claim.

But, here, too, we think the better course is for us to permit the

District Court to address that contention on remand, given that it

merely "assume[d] for purposes of [its] discussion" of Bruce's

- 30 - termination that Bruce's "termination can be fairly attributable

to state action" and so has not addressed the state-action issue.

Bruce, 527 F. Supp. 3d at 78.1

V.

We vacate the District Court's grant of summary judgment

to the defendants and remand for further proceedings consistent

with this opinion. The parties shall bear their own costs.

1 None of the defendants raised any immunities as a defense to us or in their motions for summary judgment, and so we do not address them.

- 31 -