Bruce v. Worcester Reg'l Transit Auth.

34 F.4th 129

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.

Nos. 21-1293

21-1300

United States Court of Appeals, First Circuit.

May 18, 2022

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.

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

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 42 U.S.C. § 1983 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 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 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."

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 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.

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 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...