Fincher v. Town of Brookline

26 F.4th 479

Deon FINCHER, Plaintiff, Appellant,

v.TOWN OF BROOKLINE, Defendant, Appellee.

No. 21-1281

United States Court of Appeals, First Circuit.

February 18, 2022

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.

Before Kayatta, Lipez, and Gelpí, Circuit Judges.

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 42 U.S.C. § 1983 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.

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 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 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 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: that Brookline violated his Fourteenth Amendment equal protection rights, and the harm he suffered entitled him to seek relief from the Town pursuant to 42 U.S.C. § 1983. 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 U.S.C. § 2000e et seq. ("Title VII") or the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 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, 645 F.3d 69, 73 (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 42 U.S.C. § 1983, which allows individuals to "sue certain persons for depriving them of federally assured rights" under color of state law. See Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir. 2008). The Town of Brookline as a municipal defendant is considered a person under § 1983. See Rodríguez v. Municipality of San Juan, 659 F.3d 168, 172 n.2 (1st Cir. 2011) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (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, 596 F.3d 38, 55 (1st Cir. 2010) (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018 ). One way in which...