United States Court of Appeals For the First Circuit

No. 22–1700

THOMAS "T.J." CIARAMETARO,

Plaintiff, Appellant,

v.

CITY OF GLOUCESTER; CHARLES "CHIP" PAYSON, individually and as Gloucester's City Solicitor; JAMES DESTINO, as Gloucester's former Chief Administrative Officer; HOLLY DOUGWILLO, individually and as Gloucester's Human Resources Director; SEFATIA ROMEO THEKEN, individually and as Mayor of Gloucester,

Defendants, Appellees.

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

[Hon. William G. Young, U.S. District Judge]

Before

Kayatta, Lipez, and Rikelman, Circuit Judges.

Liam T. O'Connell, with whom Farrell Smith O'Connell was on brief, for appellant. John J. Davis, Jr., with whom Justin L. Amos and Pierce Davis & Perritano LLP were on brief, for appellees City of Gloucester, Charles "Chip" Payson, James Destino, and Holly Dougwillo. Leonard H. Kesten, with whom Deidre Brennan Regan, Francesca M. Papia, and Brody, Hardoon, Perkins & Kesten, LLP were on brief, for appellee Sefatia Romeo Theken. November 28, 2023 KAYATTA, Circuit Judge. Thomas Ciarametaro, the

Harbormaster of the City of Gloucester, Massachusetts, claims that

several Gloucester city officials (the "City Officials") violated

his First Amendment rights because they retaliated against him for

his expert testimony in a maritime tort dispute between several

Gloucester fishermen and the United States Coast Guard. The

district court granted summary judgment to the City Officials. In

so ruling, the district court concluded that qualified immunity

shielded the City Officials -- in their personal capacities --

from Ciarametaro's First Amendment retaliation claims.

Ciarametaro appeals only that conclusion. Because we agree that

the City Officials are entitled to qualified immunity, we affirm.

I.

A.

In reviewing the grant of a motion for summary judgment

dismissing Ciarametaro's claims, we accept the facts in the light

most favorable to him, and we draw all reasonable inferences on

his behalf. See Potvin v. Speedway LLC,

, 413–14 (1st

Cir. 2018).

As Harbormaster, Ciarametaro regulates and maintains the

Gloucester waterfront. His duties include enforcing local

maritime ordinances, responding to boating emergencies,

maintaining harbor facilities, and cooperating with state and

federal maritime agencies. Ciarametaro also owns a private

- 3 - consulting firm called Five Fathoms Consulting, which provides,

among other things, "marine investigation and expert witness"

services.1

In January 2018, counsel for two Gloucester fishermen

(and the estate of a third fisherman) approached Ciarametaro in

his capacity as the owner of Five Fathoms Consulting. The

fishermen were suing a Gloucester fishing captain and the United

States Coast Guard, alleging that both parties negligently sank

the fishermen's stranded vessel during a botched rescue attempt.

See Complaint at 3–7, Lane v. Powell, No. 17–12356–PBS (D. Mass.

Nov. 30, 2017). The fishermen asked Ciarametaro to testify on

their behalf as an expert witness in the case (the "Lane case").

Before accepting the offer, Ciarametaro contacted

Charles Payson, the then-City Solicitor of Gloucester. According

to Ciarametaro, Payson stated that he had "no problem" with the

expert witness arrangement, given that neither Ciarametaro nor the

Harbormaster's Office had been involved in the Lane accident.

Payson then recommended that Ciarametaro speak to the

Massachusetts State Ethics Commission. Ciarametaro alleges that

he did so. He also alleges that the Commission's representative

advised him that testifying in the Lane case would present "no

1 The parties agree that Gloucester officials may pursue outside employment that does not interfere with their public duties.

- 4 - legal or ethical conflict." Shortly thereafter, Ciarametaro

accepted the expert witness assignment.

Ciarametaro filed his expert report in June 2019. The

report criticized the actions of both the rescuing fishing captain

and the Coast Guard. Ciarametaro wrote that "everything about

[the defendant-fishing captain's tow of the plaintiffs' vessel]

was improper from the start." He also described the Coast Guard

response as plagued by a "significant breakdown in

communication . . . up and down the chain of command." Trial on

the Lane case was scheduled for July 2020.

On April 6, 2020, James Destino -- the then-Chief

Administrative Officer of Gloucester -- learned from the president

of the Massachusetts Lobstermen's Association ("MLA") that

Ciarametaro was an expert witness in the Lane case. Destino then

called Ciarametaro, expressing concern that the latter's testimony

in Lane would strain Gloucester's relationships with the fishing

community, harm Ciarametaro's reputation, and cost Ciarametaro his

job. During the call, Destino and Ciarametaro discussed the risk

that the public would look askance at Gloucester's harbormaster

testifying against a Gloucester fishing captain. In a follow-up

text exchange later that day, Destino wrote that he did not want

to see Ciarametaro's "good reputation in town . . .

[compromised]." The pair discussed how Ciarametaro could

- 5 - "extricate" himself from the Lane case, and Ciarametaro agreed to

try to withdraw as an expert witness.

After the April 6 call with Destino, Ciarametaro texted

Sefatia Theken, the then-Mayor of Gloucester. Ciarametaro wrote

that he "[understood] the public perception" of his testimony in

the Lane case. He also emphasized that he was "working . . . to

recuse [himself]" from the case.2 Theken wrote back that the Lane

case was a "big conflict" that could undermine the fishing

community's trust in the Harbormaster's Office. Theken also left

Ciarametaro a voice message, in which she berated him in crude

terms, threatened his job, demanded that he recuse himself from

Lane, and warned that he was "losing the trust of the fishermen."

In an email exchange with Ciarametaro and several other City

Officials on April 7, Theken reiterated that she did not want to

"los[e] the trust" of local fishermen or risk a "conflict" between

Ciarametaro's public and private duties. In the same email

exchange, Payson added that Ciarametaro's involvement in Lane

"sends a clear message to the fishing community that if you stop

and help a fellow fisherman you could be liable for negligence."

2In a separate email to Theken -- also dated April 6 -- Ciarametaro suggested that recusal "may not be . . . simple at this point," and asked Theken to advise him on how to proceed. He did not retract his previous statements that he would attempt to withdraw from the case.

- 6 - On April 9, Theken received a letter from the executive

director of the MLA. The letter stated that the MLA's members had

a "lack of faith within the port of Gloucester," with "many

commercial fishermen [questioning] the reliability and position

individual harbormasters have taken on [the Lane case]." The

letter went on to say that "commercial fishermen need a champion

now more than ever[,] and not an anti-fisherman authority working

against them[.]"

Despite the City Officials' newly reinforced concerns,

and his prior indications that he would try to withdraw as a

witness, Ciarametaro remained an expert witness in the Lane case.

Starting in April 2020, the City Officials allegedly began a

campaign of retaliation against Ciarametaro. He claims that the

City Officials created a hostile work environment by excluding him

from important policymaking meetings and subjecting him to

repeated verbal abuse. For example, Ciarametaro claims that Theken

called him a "fraud" and an "asshole" and suggested to others that

her relatives should "brea[k] [Ciarametaro's] kneecaps." He also

alleges that the City Officials reduced his compensation by denying

him permission to work on overtime details, and by withholding a

previously agreed-upon pay raise that Ciarametaro expected to

receive after the Harbormaster's Office merged with the Gloucester

Shellfish Department. Ciarametaro further alleges that the City

Officials interfered with his management of the Harbormaster's

- 7 - Office, particularly by harassing one of Ciarametaro's part-time

administrative clerks and accusing her of "f*****g everyone in the

[Harbormaster's Office]."

Finally, Ciarametaro alleges that the City Officials

conspired to conjure a pretext for firing him. For example, he

alleges that Theken admitted to working with Holly Dougwillo --

Gloucester's Human Resources Director -- to "fis[h] for

wrongdoing" in his personnel files. And he alleges that Destino

told the other City Officials that "the goal is to get rid of

[Ciarametaro] . . . Human Resources has been building a file

against him, he's done."

B.

In February 2021, Ciarametaro sued the City of

Gloucester and the City Officials (i.e., Theken, Destino, Payson,

and Dougwillo) in Massachusetts state court. The complaint, as

later amended, includes three counts. Count I is a tort claim for

intentional infliction of emotional distress. Count II is a First

Amendment retaliation claim under

. Count III is

a civil rights claim under the Massachusetts Civil Rights Act.

The City and the City Officials timely removed the case to the

U.S. District Court for the District of Massachusetts.

The district court granted summary judgment to the

defendants on all counts. As relevant here, the district court

held that Counts II and III failed as against the City Officials

- 8 - in their personal capacities because it was not "clearly

established" that Ciarametaro's speech "enjoyed First Amendment

protection." The district court held that the City Officials were

therefore entitled to qualified immunity.

Ciarametaro timely appealed, challenging only the

district court's qualified immunity finding as to the City

Officials. Ciarametaro argues that by retaliating against him for

his expert testimony in Lane, the defendants violated his clearly

established First Amendment rights. He does not argue that the

City Officials are liable for damages even if their alleged

retaliation were constitutionally permissible. Nor does he argue

that even if some form of retaliation were legally permissible,

the specific nature of the City Officials' retaliation

nevertheless violated his First Amendment rights.

II.

A.

Qualified immunity shields public officials from

personal liability for "actions taken while performing

discretionary functions." Lynch v. City of Boston,

(1st Cir. 1999). The goal of qualified immunity is to "give[]

government officials breathing room to make reasonable but

mistaken judgments about open legal questions." Ashcroft v. al-

Kidd,

(2011). To achieve that goal, a court

will grant qualified immunity unless it is "sufficiently clear

- 9 - 'that every reasonable official would [have understood] that what

he [was] doing violate[d]'" the plaintiff's rights. Reichle v.

Howards,

(2012) (first alteration in the

original) (quoting Ashcroft,

). Qualified immunity

therefore protects "all but the plainly incompetent or those who

knowingly violate the law." Malley v. Briggs,

(1986).

To surmount qualified immunity, a plaintiff must show

that 1) the official "violated a statutory or constitutional

right," and 2) the ostensibly violated right was "clearly

established" at the time of the challenged conduct. Ashcroft,

. The plaintiff must point to controlling authority,

or a "robust consensus" of persuasive authority, clearly

demonstrating the "violative nature of [the defendant's]

particular conduct."

at 741–42 (internal citations and

quotations omitted). That authority need not be "directly on

point," but a plaintiff also may not "define clearly established

law at a high level of generality."

at 741–42. Instead, the

plaintiff must identify authority that is sufficiently analogous

to "place[] the statutory or constitutional question beyond

debate."

.

B.

To determine whether a public employer violates an

employee's First Amendment rights by retaliating against him on

- 10 - account of his speech, we employ a three-step standard. See

Davignon v. Hodgson,

(1st Cir. 2008).

The first step is to determine whether the public

employee "spoke as a citizen on a matter of public concern."

The second step requires balancing the value of the employee's

speech -- both to himself and to the public -- against the

government employer's legitimate interest in "preventing

unnecessary disruptions and inefficiencies in carrying out its

public service mission." Guilloty Perez v. Pierluisi,

(1st Cir. 2003) (quoting O'Connor v. Steeves,

(1st Cir. 1993)); see also Garcetti v. Ceballos,

(2006) (noting the need to respect both the "individual and

societal interests" in the public employee's speech and the ability

of the public employer to "perform [its] important public

functions."). This balancing inquiry is known as Pickering

balancing. See Pickering v. Bd. of Ed. of Twp. High Sch. Dist.

205, Will Cnty.,

(1968) (articulating the

original version of the balancing test).

If an employee's speech satisfies the first two steps,

then it is protected speech under the First Amendment. See Rosaura

Bldg. Corp. v. Municipality of Mayaguez,

, 66–67 (1st

Cir. 2015). The analysis then proceeds to the third step, which

asks whether the protected speech was a "substantial or motivating

- 11 - factor in the adverse employment decision." Curran v. Cousins,

(1st Cir. 2007).

As to step one, for purposes of summary judgment, the

City Officials do not meaningfully dispute that Ciarametaro spoke

as a private citizen on a matter of public concern. So, we can

proceed to step two (the Pickering analysis), within the context

of a qualified immunity defense. We ask whether, at the time of

the City Officials' alleged retaliation, the law clearly

established that the value of Ciarametaro's speech outweighed the

municipality's interest in the efficient provision of public

services by the Harbormaster's Office. For the following reasons,

we find that it did not.3 The City Officials are therefore entitled

to qualified immunity, and we need not address step three of the

First Amendment retaliation analysis.

III.

A.

We start by analyzing the City Officials' Pickering

interest in the efficient provision of public services. At the

outset, Ciarametaro asserts that there is "no evidence that [his

3 Our analysis of Ciarametaro's federal claim under section 1983 applies equally to his state claim under the Massachusetts Civil Rights Act. The Massachusetts Supreme Judicial Court has made clear that the "[f]ederal system of immunity for discretionary functions under [section] 1983" also applies to claims brought under the Massachusetts Civil Rights Act. Duarte v. Healy,

(Mass. 1989).

- 12 - testimony] was disruptive to the [Harbormaster's Office] or the

[City]." But an employer need not "allow events to unfold to the

extent that the . . . destruction of working relationships is

manifest before taking action." Curran,

(quoting

Connick v. Myers,

(1983)). Instead, to assess

the employer interests implicated by Ciarametaro's speech, the

relevant question is whether the City Officials were reasonably

concerned that Ciarametaro's expert testimony would disrupt

relationships between commercial fishermen and the Harbormaster's

Office.

(quoting Waters v. Churchill,

(1994)) ("[R]easonable [employer] predictions of disruption"

receive significant weight under Pickering); see also Kinney v.

Weaver,

(5th Cir. 2004) (en banc) ("The key

limitation on preemptive action . . .is that [an employer's]

predictions of disruption must be reasonable.").

Ciarametaro's brief concedes that the City Officials

were, in fact, "concerned" that his speech was causing local

fishermen to "question the continued successes of the fleet in

Gloucester." City Officials expressed such concerns immediately

upon learning about Ciarametaro's involvement in the Lane case in

April 2020. In his phone call with Ciarametaro, Destino emphasized

the public perception risks of the City Harbormaster testifying

against a local fisherman. Theken wrote in a text message to

Ciarametaro that the testimony created a "big conflict" that could

- 13 - drive the fishing community to "lose trust" in the Harbormaster's

Office. And Payson stated in an email that Ciarametaro's Lane

testimony sent a "clear message" to the fishing community that the

Harbormaster may not support them in a similar tort suit.

The City Officials' concerns about the disruptive impact

of Ciarametaro's testimony were certainly reasonable. Indeed, the

organization representing many local fishermen -- the MLA --

expressly told Theken that those fishermen considered the

Harbormaster's Office to be "anti-fisherman." Given that blunt

language, the City Officials could reasonably predict that

Ciarametaro's testimony risked undermining his ability to

"[p]romote the City as a hospitable port of call." Ciarametaro

himself was aware of this risk. In his text messages with Theken,

Ciarametaro acknowledged that his testimony threatened the "public

perception" of his department.4

This is therefore not a case like Mihos v. Swift,

(1st Cir. 2004), in which the plaintiff alleged that the

content of his speech -- rather than concerns about the impact of

that speech on his job performance -- provoked his employer's

retaliatory pique.

at 103–08. Here, Ciarametaro acknowledges

that the City Officials were concerned about his testimony

4At oral argument, Ciarametaro's counsel conceded that these text messages reflected Ciarametaro's belief that his testimony could disrupt the relationship between the Harbormaster's Office and the fishing community.

- 14 - alienating an important local industry. In sum, the defendants'

side of the Pickering scale bears substantial weight.

B.

Were we required to decide finally whether the City

Officials violated Ciarametaro's First Amendment rights, we would

now need to balance the City's foregoing interests against the

interests of Ciarametaro and the public in his Lane testimony.

Garcetti,

. This would be a delicate and "fact-

intensive" inquiry. Fabiano v. Hopkins,

(1st

Cir. 2003).

But we need not undertake this inquiry. This is because

the outcome of such a difficult and fact-bound analysis "can rarely

be considered 'clearly established,' at least in the absence of

closely corresponding factual or legal precedent." Frazier v.

Bailey,

(1st Cir. 1992). And Ciarametaro

identifies no "closely corresponding" precedent clearly

establishing that the City Officials -- at the time of their

actions -- could not restrict his expert testimony to preserve

relationships with the Gloucester fishing community.

In his brief, Ciarametaro indirectly cites to Rankin v.

McPherson,

(1987), where the Supreme Court noted that

it is "clearly established that a State may not discharge an

employee on a basis that infringes that employee's

constitutionally protected interest in freedom of speech."

at

- 15 - 383. This simply begs the question. Ciarametaro's citation to

Rankin tautologically presumes that his speech was protected. But

whether and how clearly Ciarametaro's speech was protected in the

first place is the crux of this entire dispute.

In a supplemental letter to the court, Ciarametaro

points to Swartzwelder v. McNeilly,

(3d Cir. 2002).

But Swartzwelder is plainly distinguishable on its facts. That

case involved a sweeping police department policy that required

"the vast rank and file" of officers to obtain approval before

giving expert opinion testimony. 297 F.3d at 231–32, 237 (quoting

United States v. Nat'l Treasury Emp. Union,

(1995)). The breadth of that prior restraint invited a "tailoring

requirement," id. at 236, which the police department's broad

policy could not satisfy, id. at 241. By contrast, this case

involves a town responding to specific testimony by a specific

official. Hence, it does not present the overbreadth defect that

took center stage in Swartzwelder.

In the same letter, Ciarametaro also cites to Brady v.

Tamburini,

(D.R.I. 2021). Brady is a district

court case, and district court decisions "do not necessarily settle

constitutional standards or prevent repeated claims of qualified

immunity." Camreta v. Greene,

, 709 n.7 (2011). In

any event, Brady is inapposite. There, a police department

disciplined a detective for comments he made to a newspaper

- 16 - reporter. 518 F. Supp. 3d at 577. The district court concluded

that Pickering balancing favored the officer, because the

department "presented no evidence" that the officer's speech

actually or potentially disrupted department operations. Id. at

586. That is not the case here, where the City Officials had ample

reason to believe that Ciarametaro's speech threatened

relationships with commercial fishermen.

Our own review also reveals no case clearly establishing

that Ciarametaro's speech was categorically entitled to First

Amendment protection. See Elder v. Holloway,

(1994) ("[A]ppellate review of qualified immunity dispositions is

to be conducted in light of all relevant precedents . . . ."). In

fact, several appellate cases have held that a public employee's

judicial testimony was not protected under Pickering when the

testimony criticized third parties with whom the public employer

wished to maintain a strong working relationship. See, e.g.,

Worrell v. Henry,

(10th Cir. 2000) (district

attorney could withdraw an offer of employment to serve as the

coordinator of a drug task force, because the offeree's past

testimony on behalf of a criminal defendant risked relationships

with a cooperating agency); Tedder v. Norman,

(8th Cir. 1999) (director of a law enforcement training center

could demote his deputy, because the deputy's prior testimony in

an excessive force case threatened relationships between the

- 17 - training center and the law enforcement agencies it trained); cf.

Gilchrist v. Citty,

(10th Cir. 2006)

(forensic lab could demote an analyst who previously gave faulty

testimony because, among other things, further testimony could

threaten the lab's credibility in court).

To be clear, we need not (and therefore do not) decide

whether the value of Ciarametaro's speech outweighed the City

Officials' interests under Pickering balancing. We hold only that

the City Officials could have reasonably concluded that it did

not. And even if the City Officials' reasoning was "mistaken, it

would not have been egregiously so . . . . [A]ccordingly,

qualified immunity is available." See Wagner v. City of Holyoke,

(1st Cir. 2005).

IV.

For the foregoing reasons, the judgment of the district

court is affirmed.

- 18 -